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JO 7

[All Rights IteserreiL]

DIGEST OF INDIAN LAW CASES

CONTAINING

HIGH COURT REPORTS, 1862-1909;

AND

PRIVY COUNCIL REPORTS OF APPEALS FROM INDIA,

1836-1909,

WITH AN INDEX OF OASES,

COMPILED UNDER THE ORDERS OP THE GOVERNMENT OP INDIA

B. D. BOSE

OP THE IXNER TEMPLE, BARUISTER-AT-LAW ; ADVOCATE OP THE HIGH COURT, CALCUTTA
AND EDITOR OP THE INDIAN LAW REPORTS, CALCUTTA SERIES.

IN SIX VOLUMES.

Volume III : J— M.

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fcl^a^D^

TABLE

HEADINGS, SUB-HEADINGS, AND CROSS REFERENCES.

The headings and sub-headings under which the cases are arranged are
printed in this table in capitals, the headings in black type and the sub-head-
ings in small capitals. The cross references are printed in ordinary type.

JAGHIE,

Jailor,

Jains,

JALKAE.

Jamabandi.

Jamabandi Papers.

Jama-wasil-baki Papers.

Jettison.

Jews.

Jliansi and Morar Act.

JHANSI INCUMBERED ESTATES ACT.

Jhum cultivation.

JOINDER OF CAUSES OF ACTION.

JOINDER OF CHARGES.

JOINDER OF PARTIES.

Joint Contractors.

Joint Creditors.

Joint Debtors.

Joint Decree.

Joint Decree-holders.

Joint Estate. *

Joint Family.

Joint Landlords.

Joint Mortgagors.

Joint Owners.

JOINT POSSESSION.
JOINT PROPERTY.
JOINT TENANCY.
JOINT TRIAL.

Joint Wrong-doers.
Jote.

JUDDINS.
JUDGE.

1. Appointment of Judge.

2. Duty of Judge.

3. Power of Judge.

4. Qualifications and Disqualifications.

5. Death of Judge before Judgment.
JUDGE OF HIGH COURT.

JUDGE OF THE SUPREME COURTS

IN INDIA.
Judges, Difference of Opinion between.
JUDGMENT.

1. Civil Cases.

(a) What amounts to.

(b) Language of.

(d) Judgment governing other Cases.

(e) Construction of Judgment.
(/) Right to Copies of.

2. Criminal Cases.
JUDGMENT IN REM.
Judgment-Debt.
Judgment-Debtor.
Judicature Act, 1873.
Judicial act.

JUDICIAL COMMISSIONER.
JUDICIAL COMMISSIONER, ASSAM.
Judicial Commissioner, Oudh.
Judicial Commissioner, Punjab.
Judicial Decisions.
Judicial Discretion.
JUDICIAL NOTICE.
Judicial Officer.

TABLE OF

i A DINGS.

JUDICIAL OFriCERS, LIABILITY OF

Judicial OfBccrs' Protection Act.

JUDICIAL PROCEEDINa.
Judicial Separation.

JUDICIAL SUPERINTENDENT OF
RAILWAYS, NIZAM'S DOMINIONS.

"JUJMANI RIGHT."

Jungle Land.

JUNGLEBURI TENURE.
JURISDICTION.

I. Question of Jurisdiction.
(a) Generally.
(h) When it may be raised.

(d) Consent of Parties and Waiver of

Objection to Jurisdiction.

2. Causes op Jurisdiction.

(a) Dwelling, Carrying on Business, or

Working for Gain.

(b) Cause op Action.

General Cases.
Account, Suit for.
Agreement.
Bond, Suit on.
Breach of Contract.
Compromise.
Costs.
Dower.

False Evidence.
Foreign Judgment.
Foreigner.
Fraud.
Legacy.

Lost Property.
Maintenance.
Malicious Prosecution.
Minor.

Misrepresentati on.
Money had and received.
Negotiable Instruments.
Partnership.
Principal and Agent.
Registration.
Release.

Representative op Deceased
Person.

Restitution of Conjugal Rights. I

JURISDICTION -coracW.

3. Suit for Land. "' '

(a) General Cases.

Administration Suit.

Award.

Claim to Attached Property.

Foreclosure.

Injunction. <

Lien.

Partition.

Redemption.

Rent.

Specific Performance.

Title-deeds.

Trusts.

(b) Property in different Districps.

4. Admiralty and Vice-Admiralty Jurisdic-

tion.

5. Matrimonial Jurisdiction.

6. Testamentary and Intestate Jurisdic-

tion.

7. Jurisdiction op Magistrates.

8. Jurisdiction op Revenue Officers.
JURISDICTION OF CIVIL COURT.

1. Abuse, Defamation, and Slander.

2. Caste.

3. Court of Wards.

4. Customary Payments.

5. Duties or Cesses.

6. Endowment.

7. Fees and Collections at Shrines.

8. Ferries.

9. Fishery Rights.

10. Foreign and Native Rulers.

11. Hat.

12. Magistrate's Orders, Interference with.

13. Mamlatdar's Court.

14. Marriages.

15. Municipal Bodies.

16. Offices and Honours, Right to.

17. Partnership.

18. Penalties.

19. Political Officers.

20. POTTAHS.

21. Privacy, Inva'sion op.

22. Processions.

23. Public Ways, Obstruction op

TABLE OF HEADINGS.

JtTRISDICTION OF CIVIL COUKT-
condd.

24. Registration of Tenures.

25. Religion.

26. Rent and Revenue Suits.

(a) Bombay. [

(6) Madras.

(d) OUDE.

27. Revenue.

28. Revenue Courts.

(a) Generally.

(b) Partition.

29. Sambalpur.

30. Sanads.

31. Services, Performance of.

32. Societies.

33. Statutory Powers, Persons with.

34. Survey Awards.

35. Trespass.

JURISDICTION" OF CRIMINAL

COURT.

1. General Jurisdiction.

2. EuR0PE.\N British Subjects.

3. Native Indian Subjects.

4. Offences committed only partly in one

District.

(a) Generally.

(&) Abetment.

(d) Adulteration.

(e) Criminal Breach op Contract.
(/) Criminal Breach of Trust.

{g) Dacoity.

(h) Emigrants, Recruiting, under False
Pretences.
■ \ (j) Escape from Custody.
(j) Kidnapping.
(k) Murder.

(I) Receiving Stolen Property,
(m) Theft.

5. Offences committed during Journey.

6. Disputes concerning immoveable pro-

perty.

7. Offences under the Cattle Trespass

Act.

JURISDICTION OF HIGH COURT.

Jurisdiction of Magistrates.

JURISDICTION OF HEVENtTE COURT.

1. Bombay Regulations and Acts.
T2. Madras Regulations and Acts.

3. N.-W. P. Rent and Revenue Cases.

4. OuDE Rent and Revenue Cases.

JURY.

1. Civil Cases.

2. Jury under High Court's CRimNAL Pro -

cedure.

3. Jury in Sessions Cases.

4 Jury under Nuisance Sections op Crimi-
nal Procedure Code.

5. Withdrawal op Case from Jury.
Jus Disponendi.

Jus tertii.

Just Cause.

Justice, Equity, and Good Conscience, Doctrine of.

Justice of the Peace.

Justices, Suit against.

KABULIAT.

1. Form of Kabuliat.

2. In respect of what Suit lies.

3. Right to Sue.

4. Requisite Preliminaries to Suit.

5. Proof necessary in Suit.

6. Decree for Kabuliat.
Kadim Haks.

Kamat Land.

KANOM.

Kanungo.
Kanya.

KARNAM.

Karnavan.

Kathiawar State, whether British territory.

Kattubadi.

Kazi.

Keitima Adoption.

Khairat Bishanprit.

Khamar Land.

Kharwa Community of Broach,

Khata. j

Khazanchi.

KHOJA MAHOMEDANS.

KHORPOSH GRANT.

Khoti Act.

KHOTI SETTLEMENT ACT.

KHOTI TENURE.

KHOTS. ■
KIDNAPPING.

Kirtan.

Kist.

Kistbandi.

Knowledge.

Kondh, Court of Native Commissioner of.

Kulachar.

KU^TAON AND GARHWAL.

Kurbars.

Kursinama.

Kutchi Memons.

Labourers.

Laccadive Islands.

LACHES.

Lakhiraj Land.

Lambardar.

LAMBARDAR AND CO-SHARER.

Lameness.

LAND.

LAND ACQUISITION.

LAND ACQUISITION ACTS.

Landholder.

Landholder and Tenant.

LAND IMPROVEMENT LOANS ACT.

Landing Agents at Penang.

Landlord.

LANDLORD AND TENANT.

L Contract of Tena>'cy, Law governing.

2. Constitution of Relation.

(a) Generally.

(b) Acknowledgment of Tenancy by Re-

ceipt OF Rent.

Payment of Rent.

3. Obligation of Landlord to give and main-

tain Tenant in Possession.

4. Obligation of Tenant to keep Holding"

distinct.

5. Liability for Rent.

6. Rent in Kind.

7. Tenancy for Immoral Purpose.

8. Payment of Rent.

(a) Generally.
(6) Non-payment.

9. Nature of Tenancy.

10. Holding over after Tenancy.

11. Damage to Premises let.

12. Deductions from Rent.

TABLE OF HEADINGS.

, LANDLORD AND TENANT— concZti.

13. Repairs.

14. Tax and Cesses.

15. Alteration of Conditions of Tenancy.

(a) Power to alter.

(b) Division of Tenure and Distribution

OF Rent.

Land.

(d) Digging Wells or Tanks.

(e) Erection of Buildings.

16. Transfer by Landlord.

17. Transfer by Tenant.

18. Accretion to Tenure.

19. Right to Crops.

20. Property in Trees and Wood on Land.

21. Forfeiture.

(a) Breach of Conditions.
(&) Denial of Title.

22. Abandonment, Relinquishment, or Sub-

render of tenure.

23.

Ejectment.
{a) Generally.
(b) Notice to quit.

24. Buildings on Land, Right to remove, and

Compensation for Improvements.

25. MiRASIDARS.

26. Easement.

27. Enhancement op Rent.

28. Inamdars.

29. Lease.

30. Pre-emption.

31. Sale in Execution.

32. Under-ground Rights.
Landlord and Tenant Act.
Landlord's Fee.
Landloids.

LAND-MARKS.

Land Registration.

LAND BEGISTRATION ACT (BENG.
ACT VII OF 1876).

LAND REVENUE.

Land Revenue Act (Bombay).

LAND REVENUE CODE (BOMBAY).

Land Revenue Sales Act (Bengal).
Land Tenure.

LAND TENURE IN BOMBAY.

LAND TENURE IN CALCUTTA.

LAND TENURE IN KANARA.

TABLE OF HEADINGS.

LAND TENURE IN ORISSA.

LAND TENURE IN SURAT.

Law, Ignorance of.

Law Officers.

LAW REPORTS ACT (XVIII OF 1875).

Lawful Guardianship.

L*ws Local Extent Act.

LEASE.

1. Construction.

2. Mineral Rights.

3. Proof op Lease.

4. ZuR-i-PESHGi Lease.
Leasehold Property.
Leave of Court.

Leave to appeal
Leave to bid.
Leave to defend suit.
LEAVE TO SUE.

LEGACY.

Legal Cruelty.
Legal Necessity.

LEGAL PRACTITIONERS' ACT (XVIII
OF 1879).

Legal Practit oners' Amendment Act {XI of 1896).

Legal Remembrancer.

LEGAL REPRESENTATIVES.
LEGAL REPRESENTATIVES' SUITS
ACT (MADRAS).

LEGAL TENDER.

Legatee.

Legislature, Power of.

Legitimacy.

Leprosy.

Lessee.

Lessor and Lessee.

Letter.

LETTER OF CREDIT.

Letter of License.
Letters.

LETTERS OF ADMINISTRATION.

Administration with Will annexed.

Administrator-General.

Administrator of Hindu Estate.

Application for.

Attorney of Executor in England.

Duty on.

Grounds fob refusal of.

LETTERS OF ADMINISTRATION—

concld.

Hindu Widow.
Jurisdiction of High Court.
Jurisdiction of Recorder's Court.
Khoja Mahomedan Estate.
Limited Grant.
Lost Will.
Minor Wife.
Prostitute's Estate.
Revocation of.
LETTERS PATENT APPEAL.

LETTERS PATENT, HIGH COURT,
1865.

LETTERS PATENT, HIGH COURT,

N.-W. P.
Lex fori.

Liability of Purchaser from Mortgagor.
LIBEL.
Liberty to apply.
LICENSE.
Licensee.
LIEN.
Life Estate.
Life Interest.
Life Tenant.

LIGHT AND AIR.

Lights.

LIMITATION.

1. Law of Limitation.

2. Question op Limitation.

3. Adverse Possession.

4. Instalment Cases.

5. Statutes of Limitation —

(rt) Generally.
(6) Statute 21 Jac. I, c. 16.
(c) OuDH, Rules for.
(rf) Bengal Regui-ations III of 1793, s. 14.
(e) Bengal Regulation VII of 1799, s.l8
(/) Bombay Regulation I of 1800, s. 13.
{g) Madras Regulation II op 1802.
(h) Madras Regulation XXV of 1802.
(^) Bengal Regulation II of 1805.
{)) Bombay Regulation V op 1827.
{k) Act XXV of 1857, s. 9.
[I) Act IX of 1859.
{m) Act XIV of 1859.

TABLE OF HEADINGS.

LIMITATION— cowcW.

5. Statutes of Limitation — concld.

(n) Act IX of 1871.

(o) Madras Act I of 1876, s. 7.
Limitation Act, 1859.
lilMITATIOISr ACT (XV OF 1877).
. , s. 19.

1. Acknowledgment of Debts.

2. Acknowledgment of other Rights.
. Sch. II, Art. 144.

1. Immoveable Property.

2. Adverse Possession.
Sch. II, Art. 179.

1. Law applicable to Application for Exe-

cution.

2. Period from which Limitation runs.

(a) Generally.

(6) Continuous Proceedings.

(d) Where there has been a Review.

(e) Where previous Application has been

made.

(/) Decrees for Sale.
(g) Clause 4.

3. Nature of Application.

(a) Generally.

(6) Irregular and Defective Applica-
tions.

4. Step in aid of Execution.

(a) Generally.

(6) Striking Case off the File, Effect

OF.

Decree-holder.
(e) Confirmation of Sale.

(/) Miscellaneous Acts of Decree-
holder.

5. Notice of Execution.

6. Order for Payment ox Specified Dat£s.

7. Joint Decrees.

(a) Joint Decree-holders.
(6) Joint Judgment-debtors.

8. Meaning of " Proper Court. "
LIMITATION ACT (IX OF 1908).
Liquidated Damages.

Liquidation.
LIQUIDATORS.
Liquor, Supply of.

LIS PENDEK-S.

List of Candidates at Municipal Election.

List of Voters at Election.

Loan. : ;

Loan Register.

Local Board.

LOCAL BOARDS ACT (MADRAS).
LOCAL GOVERNMENT.

Local Inquiry. ; \

LOCAL INVESTIGATION.

Local Self-Govemment Act (Bengal).

Local Usage.

Locus Penitentioe.

Lodging-house Keeper.

Lodgings let to prostitute. ;

LORD'S DAY ACT.

Loss of Service.

Lost grant. Presumption of.

LOTTERY.

Lottery Act.

Lottery Office.

Lottery Tickets.

Lunacy.

Lunacy Act.

Lunar Month.

LUNATIC.

LURKING HOUSE-TRESPASS.

MADRAS ABKARI ACTS.

MADRAS ACTS.

MADRAS BOAT RULES.

MADRAS BOUNDARY MARKS ACT.

Madras Boundary Marks Amendment Act.

MADRAS CITY CIVIL COURT ACT.

MADRAS CITY MUNICIPAL ACT.

MADRAS CIVIL COURTS ACT.

MADRAS COURT OF WARDS ACT.

MADRAS COURT OF WARDS EEQU-
LATION.

MUNICIPALI-

MADRAS DISTRICT
TIES ACTS.

MADRAS DISTRICT MUNICIPALITIES
AMENDMENT ACT.

Madras District Police Act.

Madras Enfranchised Inams Act.

MADRAS FOREST ACT.

MADRAS GENERAL CLAUSES ACT.

TABLE OF HEADINGS.

MADRAS HARBOUR TRUST ACT.

MADRAS HEREDITARY VILLAGE

, OFFICES ACT.

MADRAS IRRIGATION CESS ACT.

MADRAS LAND REVENUE ASSESS-
MENT ACT.

MADRAS LOCAL BOARDS ACT.

MADRAS LOCAL FUNDS ACT.

MADRAS MUNICIPAL ACTS.

MADRAS POLICE ACTS

MADRAS PROPRIETARY ESTATES
VILLAGE SERVICE ACT.

MADRAS REGULATIONS.

MADRAS RENT RECOVERY ACT.

MADRAS REVENUE RECOVERY ACT

Madras Revenue Recovery Amendment Act.

MADRAS SALT ACT.

MADRAS TOWN LAND REVENUE ACT

AND MADRAS ACT VI OF 1867.
MADRAS TOWNS' IMPROVEMENT

ACT.
MADRAS TOWNS NUISANCES ACT.
MADRAS VILLAGE. COURTS ACT.
" Mafee birt " Tenure.
MAGISTRATE.

1. Appearance of Jurisdiction on Proceed-

ings.

2. Commitment to Sessions Court.

3. Duty of Magistrates.

4. General Jurisdiction.

5. Powers of Magistrates.

6. Reference by other Magistrates.

7. Re-trial of Cases.

8. Review of Orders.

9. Special Acts.

Act XIX of 1838 ' (Coasting Vessels,
Bombay).

Act XXVI of 1850 (Towns Improve-
ment, Bombay).

Act XXXV of 1850 (Ferries, Bombay).

Act XXII of 1855 (Ports and Port
Dues).

Act I OF 1858 (Compulsory Labour,
Madras).

Bengal^ Act III of 1863 (Transport
of Native Labourers).

Bombay Act IX of 1863 (Cotton
Frauds).

Bombay Act VIII of 1866] (Poisonous
Drugs).

MAGISTRATE- comcW.
9.' Special Acts — concld.

Bombay Act V of 1879 (Land Re-
venue).
Bombay Regulation XXI of 1827

(Opium).
Cattle Trespass Act, 1857.
Cattle Trespass Act, 1871.
Chowkidars.

CoMPAN^ES Act (VI of 1882).
Illegal Confinement.
Madras Abkari Act.
Madras Act III of 1865.
Madras Regulation XI of 1816.
Madras Regulation IV of 1821.
Merchant Seaman's Act, 1859.
North-Western Provinces and Oudh
Municipalities Act, 1883.

Opium Act (I of 1878).

Penal Code.

Police Act, 1861.

Post Office Acts, 1854, 1866.

Railways Act (XVIII of 1854).

Railways Act (IX of 1890).

Registration Acts, 1866, 1877.

Salt Laws.

Stamp Act, 1869.

Whipping.

Witness.

10. Transfer of Magistrate during Trial.

11. Withdrawal of Cases.
MAGISTRATE, SUBORDINATION OF.
MAHARAJA OF BENARES, FAMILY

DOMAINS OF.
Mahomedans.
Mahomedaa Community.
MAHOMEDAN LAW.

MAHOMED AN LAW- ACKNOWLEDG-
MENT.
MAHOMEDAN LAW— ARIAT.
MAHOMEDAN LAW-BILL OF EX-

CHANGE.
MAHOMEDAN LAW-CONTRACT.
MAHOMEDAN LAW-CUSTODY OF

WIFE.
MAHOMEDAN LAW-CUSTOM.
MAHOMEDAN LAW-CUTCHI ME-

MONS.
MAHOMEDAN LAW-DEBTS.
MAHOMEDAN LAW-DIVORCE.

TABLE OF HEADINGS.

MAHOMED AN LAW— DOWER.

MAHOMEDAW LAW— ENDOWMENT.
MAHOMEDAN LAW— GIFT.

1. Law Applicable to.

2. constructiox.

3. Validity.

4. Revocation.
MAHOMEDAN LAW— GUARDIAN.
MAHOMEDAN LAW— INHERITANCE.
MAHOMEDAN LAW— JOINT FAMILY.
MAHOMEDAN LAW— KAZI.
MAHOMEDAN LAW— MAINTENANCE.
MAHOMEDAN LAW— MARRIAGE.
MAHOMEDAN LAW— MARZ-UL-MAUT.
Maliomcdan Law — Minor.

MAHOMEDAN LAW— MORTGAGE .
MAHOMEDAN LAW— MOSQUE.
MAHOMEDAN LAW— PARTITION.

Mahomcdan La\v — Partnerslaip.

MAHOMEDAN LAW— PRE-EMPTION.

1 . Right of Pre-emption.

(a) Generally.

(b) Co -shakers.

(d) Mortgages.

(e) Waiver op Right or Refusal to pur-

chase.

2. Pre-emptions as to Portion of Property.

3. Ceremonies.

4. Miscellaneous Cases.

MAHOMEDAN LAW— PRESUMPTION
OF DEATH.

MAHOMEDAN LAW— RELINQUISH-
MENT.

MAHOMEDAN LAW— RESTITUTION
OP CONJUGAL RIGHTS.

Mahomedan Law — Sale.

Mahomcdan Law — Slavery.

MAHOMEDAN LAW— SOVEREIGNTY.

MAHOMEDAN LAW— SUCCESSION.

MAHOMEDAN LAW— TRUST.

MAHOMEDAN LAW— USURPED PRO
PERTY.

MAHOMEDAN LAW— USURY.

MAHOMEDAN LAW— WA JIB-UL-ARZ.

MAHOMEDAN LAW— WAKF.

MAHOMEDAN LAW— WIDOW.

MAHOMEDAN LAW— WIFE.

MAHOMEDAN LAW— WILL.
MAHOMEDAN LAW— WORSHIP.

Maiden.

MAINPRIZE.

Maintenance.

MAINTENANCE, ORDER OF CRIMI
NAL COURT AS TO.

MAJORITY ACT (IX OF 1875).

MAJORITY, AGE OP.

Mai or Lakliiraj.

MALABAR COMPENSATION FOR

TENANTS' IMPROVEMENT ACTS.
MALABAR LAW.
MALABAR LAW— ADOPTION.

MALABAR LAW— CUSTODY OF

CHILD.

MALABAR LAW— CUSTOM.

MA.LABAR LAW— DEBTS.

MALABAR LAW— ENDOWMENT.

MALABAR LAW— GIFT.

MALABAR LAW— GRANT.

MALABAR LAW— INHERITANCE.

MALABAR LAW— JOINT FAMILY.

MALABAR LAW— LEASE.

MALABAR LAW— MAINTENANCE.

MALABAR LAW— MORTGAGE.

MALABAR LAW— PARTITION.

MALABAR LAW— PRE-EMPTION.

MALABAR LAW— WILL.

Maladministration.

Malfeasance.

Maliahs. ,

MALICE.

Malicious Arrest.

MALICIOUS PROSECUTION.
MALICIOUS SEARCH.

Malik.

MALIKANA.

MALIKANA AND DUSTURAT GRANT

MAMLATDAR.

Mamlatdar's Court.

MAMLATDAR, JURISDICTION OF.

Mamlatdars' Courts' Act (Bom. Act V of 18(34).

MAMLATDARS' COURTS ACT (BOM
ACT III OF 1876).

MAMLATDARS' COURTS ACT (BOM
II OF 1906). V V Ti,.

TABLE OF HEADINGS.

MANAGEMENT OF ESTATE BY
COURT.

MANAGER.

MANAGER OF ATTACHED PRO-
PERTY.

Manaikats.

MANDAMUS.

MANDATORY INJUNCTION.

Manorial Dues.

Manufacture.

Manufacturer.

MAPILLAS.

Maps.

Marginal notes to Acts.

MARINE INSURANCE.

Maritime Lien.
MARKET,
Market Eate.
Market Value.
MARRIAGE.

MARRIAGE ACTS (CHRISTIAN),

Marriage Presents.

MARRIAGE SETTLEMENT.

MARRIED WOMAN.

MARRIED WOMEN'S PROPERTY
ACT.

Marshalling of Securities.
MARUMAKKATAYAM LAW.
MARZ-UL-MAUT.

Masonry Building.
Masses.

MASTER AND SERVANT.

Master of Ship.

Mate's Receipt.

Material Error.

Material IrreguJirity.

Math.

Matrimonial Offences.

Matwali.

Matwali Landlord.

Maurasi Mukarari Lease.

MAXIMS,

Mayukha.

MEASUREMENT OP LANDS.
Medal.

MEDICAL ATTENDANCE, FEES FOR.

Medical Evidence.

Medical Examination.

MEDICAL JURISPRUDENCE.

MEDICAL OFFICER,

Mela, Profits of.

MELWARAM.

Memorandum of Agreement.

Memorandum of Appeal.

Mercantile Usage.

Merchandise booked as Luggage.

MERCHANDIZE MARKS ACT.

MERCHANT SEAMEN'S ACT (I OF
1859).

MERCHANT SHIPPING ACT (17 & 18
VICT., C 104).

Merchant Shipping Act (18 & 19 Vict., c. 91).

MERCHANT SHIPPING ACT (25 & 26
VICT., C, 63).

MERCHANT SHIPPING ACT (57 & ^58
VICT., C. 60).

Merchant Shipping Act (V of 1883).

Merchants, Law of.

MERGER.

Mesne Incumbrances.

MESNE PROFITS,

L Right to, and Liability for.

2. Assessment in Execxttion and Suits fob
Mesne Profits.

.3. Mode of Assessment and Calculation.

4. Limitation.
Migrating Family.
Military Authorities, Jurisdiction of.
Military Code.

MILITARY COURTS OF REQUEST.
Military Decoration.
Military Officer.
Milkiat Property,
MINERAL RIGHTS,
Minerals.

Mines and Minerals.
Mining Company.
MINISTERIAL OFFICER.
MINOR.

L Evidence of Minority.

2. Liability of Minor on, and Right to en-

force. Contracts.

3. Liability fob Torts.

TABLE OF HEADINGS.

MINOR-condi.
4. Custody op Minors (Act IX of 1861, etc.)-
6. Representation op Minor in Sotts.

6. Compromise Decree.

7. Cases under Bombay Minors Act (XX op

1864).
Minor Wife.
Minority.
Minors Act.
Miras Taluq.
Mirdsidars.
Mirasi Tenant.

Misappropriation of iroperty.
MISCARRIAGE.

MISCELLAlSrEOUS PROCEEDINGS.
MISCHIEF.
Misconduot.
Misdescription.
MISDIRECTION.
Misfeasance.
MISJOINDER.

1. .Misjoinder of Causes op AonoK.

2. Misjoinder of Parties.

3. Misjoinder of Parties and Causes of Action.

MISJOINDER OF CHARGES.

Misprision of Treason.
Misrepresentation.
MISTAKE.
MITAKSHARA.
Mitakshara Family.
Mitaksliara School.
Mofussil Civil Court.
Mofussil Courts.

MOFUSSIL COURTS, POWER OF.

Mohunt.

Mohurbhunj.

Mokurari Interest.

MOKURARI ISTEMRARI TENURE.

MOKURARI LEASE.

'Money."

Money Decree.

MONEY HAD AND RECEIVED.

Money lent.

Money Order.

MONEY PAID.

MONEY PAID FOR BENEFIT OP
ANOTHER.

MONEY PAID UNDER PROCESS OF
DECREE.

Money payable by Instalments.

Money payable on Demand.

Money, Suit for.

Monopoly.

MOOKTEAR.

MOOKTEARNAMAH.

Mooktearship Examination.

MORTGAGE.

1. Form op Mortgages.

2. Construction.

3. Possession under MoRTGAOi.

4. Power op Sale.

5. Sale of Mortgaged Property.

(a) Rights of Mortgagees.

(b) Money-decrees on Mortgages,

(d) Miscellaneous.

6. Marshalling.

7. Tacking.

8. Redemption.

(•t) Right of Redemptioj.'.

(I) Redemption op Portion op fRO-

PERTY.

piry op Term.

(d) Mode of Redemption and Liability

to FOPECLOSIRE.

(«•) Interest.
(/) Limitation-.
(g) Miscellaneous.
0. Foreclosure.

(or) Right to Foreclosurb.
(6) Demand and Notice of Fore-
closure.

10. Accounts.

11. Discharge op Mortgage.

12. Priority.

13. Miscellaneous Cases.
Mortgage-Bond.
Mortgage-Debt.

Mortgage Decree.
Mortgage Deed.
MORTGAGE LIEN,
Mortgage Suit.
Mortgaged Property.
MORTGAGEE.

TABLE OF HEADINGS.

MORTGAGOR AND MORTGAGEE.

Mortmain, Statutes of.

Mosque.

Mother.

Motions.

Moulmein, Judge of.

Moveable Property.

Mowra Flowers.

Muafidar.

Muchilika.

Mukaddam.

Mukaddami Tenuit,

Mukhtear.

MUKTAD CEREMONIES.

Mulageni Chit.
MULRAYAT.

MULTIFARIOUSNESS.

Municipal Acts.
Municipal Boards.

MUNICIPAL COMMISSIONERS.

Municipal Committee.
Municipal Corporation.
Municipal Courts.

MUNICIPAL DEBENTURES.

Municipal Election.

Municipal Inspector.

Municipal Notice.

Municipal Officers.

Municipal Tax.

MUNICIPALIT"i:.

MUNSIF.

Murali.

MURDER.

Muscat Order in Council,

Mushaa, law of.

Musical Festival.

Mustagir.

Mutarafa.

Mutation.

Mutation of Names.

Mutiny Act.

Mutual Accounts or Dealings.

Mutual Assurance Society.

MUTUAL BENEFIT SOCIETY.

MutUfil Credit.

Mutuality.

Mutwalli.

Mysore.

A DIGEST

THE HIGH COURT REPORTS,

1862-1909,

AND OF

THE PRIVy COUNCIL REPORTS OF APPEALS FROM INDLA,

1836-1909.

JAGHIK.

See Chota Nagpur Landlord and
Tenant Procedure Act, 1879.

I. L. R. 25 Calc. 396, 399
See Ghatwali Tenure.

I. L. R. 5 Calc. 389

I. L. K. 9 Calc. 187

L. R. 9 I. A. 104

See Grant — Construction of Grants.

I. L. R. 9 Bom. 561

I. L. R. 15 Bom. 222

L. R. 18 I. A. 22

See Grant — Power to Grant.

6 W. R. 121
18 W. R. 321

See Inam.

See " Malikana and Dusturat " Grant-

11 C. W. N. 448

See Resumption — Miscellaneous Cases.

12 B. L. R. 120

L. R. I. A. Sup. Vol. 10

See PvESUMption — Right to resume.

1 B. L. R. A. C. 170

Nature of jaghir — Estate, for

life — Hereditary grant- A jaghir must be taken,
primd facie, to be an estate only for life, although it
may possibly be granted in such terms as to make
it hereditary. Gulabd.as Jugjivandas v. C ollec-
TOE OF Sueat . . . I. L. R. 3 Bom. 186

Rights and interest of jaghir-

dar — Liability of, to sale in execvtion of decree —
Bom-Eig.XIIcf 1S05, s. 34. The rights and

VOL. III.

JAQHTR—concld.

interest of a judgment-debtor in a jaghu: granted
under a. 34, Regulation XII of 1805, cannot be
sold in execution of a decree. The Court should
sequestrate the property, and make the proceeds
available during the life of the debtor for the pay-
ment of the money decreed (dissentiente Steer, J.).
Zameelooddeen Mahomed v. Russick Chund
Addy W. R. F. B. 85

JAILOR.

See Civil Procedure Code, 1882, s. 87.

4B. L. R. O. C. 51

in Native States.

See Confession — Confessions to Police-
officers . I. L. R. 20 Bom. 795

JAINS.

See Hindu Law.

Sec Hindu Law — Adoption — Who may

or may not adopt . 10 Bom. 241

I. L. R. 1 All. 688

I. Ii. R. 16 Mad. 182

I, L. R. 22 Bom. 416

I. L. R. 17 Calc. 518

I. L. R. 29 All. 495

See Hindu Law — Adoption — Who may

or may not be adopted.

I. Ii. E. 1 All. 288

I. Ii. E. 29 All. 495

I. L. R. 33 Bom. 669

See Hindu Law — Adoption — Second

Simultaneous, and Conditional

Adoptions . I. L. R. 8 All. 319

9 B

( 5S91

DIGEST OF CASKS.

( 5892 )

JAINS— concW.

See HiKDiT Law— Alienation— Aliena-

Tiox BY Widow— Alienation for

Legal Necessity ok with Consent of

Heirs, etc. I. L. R. 3 AIL 55

See Hindu Law— Custom— Generally

10 Bom. 241

I. L. R. 16 All. 379

See Hindu Law— Inheritance— Special

Laws — Jains.

See Succession Act, s. 331. .„ ^^

I. li. R. 3 All. 55

JALKAR.

See Fishery.

See Fisher, right of.

10 C. W. N. 1349

See Forest Act, s. 4.5.

I. li. R. 24 Calc. 504
L. R. 24 I. A. 33

, in non-tidal and non-navigable

JAMABANDI PAPERS.

See Evidence— Civil Cases— Jamabandi

AND JaMA-WASIL-EAKI PaPERS.

JAMA-WASIL-BAKI PAPERS,

See Evidence — Civil Cases — Jamabandi

AND JaMA-WASIL-BAKI PaPERS.

JETTISON.

See Shipping Law.

I. L. R. 17 Gale. 382
L. R. 16 I. A. 240

JEWS.

See Religious Community.

I. L. R. 11 Bom. 185

JHANSI AND MORAR ACT (XVII OF
1886).

(See High Court, jurisdiction of — N.-W.
P.— Civil. I. L. R. 11 All. 490

See Fishery . . 10 C. W. N. 540
Fishery, right of— Change

course of river. Wheie it was found that a piece
of water in dispute, which was at one time a part
of the bed of the river Ganges, was still connected
with it, although the connection might dry up in
the hot weather : — Held, following earlier author-
ities, that the disputed water having been part
of the bed of the Ganges and the two being con-
nected, the plaintiff, who had fishing rights in the
adjacent Ganges, was entitled to the fishing rights
in the said water. Jogendra Narayan Roy"
V. Crawford (1905). . I. L. R. 32 Gale. 1141

Fishery, right of

— Dohas — Change in course of rivtr — O/jen ChanneVs
— Interference with right — Decree, form of. If a
river shifts its course leaving lakes, dobas or sheets
of \vater in its old bed, the grantee of the 'exclusive
right of fisherj^ in the river retains that right over
such lakes and dobas so long as these latter remain
in communication with the main channel at all
seasons of the year. On proof of the existence of
such commimication and on proof that the defend-
ant has yjre vented the grantee from exercising his
right of fishery in such ddba, the latter would be
entitled to a decree for recovery of possession with-
out any reference to what may or may not be the
rights of the parties, if the communication should
cease in future. J. J. Grey v. Anund Mohun
Moiiro, W. R. JS64, 108 ; Krishnendro Roy Chow.
dhry v. Sumo Moyee, 21 W. R. 27, and Tarini
Charan Sinlia v. Watson & Co., I. L. R. 17 Calc.
963, referred to. Bhaba Prasad v. Jagadindra
Nath Rai (1905) . . I. L. R. 33 Gale. 15

JAMABANDI.

.See Evidence Act, 1872, s. 74.

I. Ii. R. 4 Calc. 76

s. 8.

See Res Judicata-

— Causes of Action.
I. L. R. 10 All. 517

JHANSI INCUMBERED ESTATES ACT
(XVI OF 1882).

.^ ss. 8 and 28 — Mortgage — Urilawful

consideration— Contract Act {IX of 18/2), s. 23—
Transfer of Property Act {IV of 1S82), s. 430. Held,
that a mortgage executed by a mortgagor who
was at the time disquahfied under s. 8 of the
Jhansi Incumbered Estates Act (XVI of 1882) was
a contract entered into for an unlawful consider-
i ation within the meaning of s. 23 of the Contract
Act, and s. 43 of the Transfer of Property Act, could
not be prayed in aid to empower the mort-
gagee to bring a suit for foreclosure after the mort-
gagor's disabilitv had* ceased. Radha Bai v.
Kamod Singh (1907). . I. L. B. 30 All. 38

JHUM CULTIVATION.

See Regulation III of 1891.

I. L. R. 33 Cal3. 1
12 C. W.N. 1095
L. R. 35 I. A. 195

JOINDER OF CAUSES OF ACTION.

See Bengal Tenancy Act, ss. 30, 52.
11 C. W. N. 1154

See Causes of Action.

See Ejectment, suit for.
I. L. R.!

Calc. 871

See Jurisdiction — Suits for Land —
Property' in Different Districts.

12 W. R. 114
I. L. R. 16 All. 359
.Sec Misjoinder.
See Multifariousness.
.See Relinquishment of, or Omission to
SUE for, Portion of Claim.

I. Ii. R. 19 Calc. 615

( 5893 )

DIGEST OF CASES.

( 5894 )

JOINDER OF CAUSES OF ACTION—
contd.

See Rent, suit for . 5 C. .W. N. 880
See Specific Relief Act, s. 27.

I. L. R. 1 All. 555
[The sections of the old Code of 1859, relating to
joinder of causes of action (ss. 8 and 9), have not
been re-enacted in the later Codes.]

1. Nature and value of suit as

aflfecting joinder of causes of action — Civil
Procedure Code, 1S59, s. S. Under s. 8 of the Code
of 1859 it was decided that the words '■ cognizable
by the same Court " referred to the nature of the
suit and not to its value ; therefore a Principal
Sudder Ameen was Jicld to have jurisdiction under
that section to try a suit for land and for mesne
profits, the entire claim not exceeding his jurisdic-
tion, although the value of the suit, so far as the
claim was for land, was below the value cognizable
by him. Luchmee Pershad Doobey v. Kallasoo
B. L. R. Sup.Vol. 620
2 Ind. Jur. N. S. 89 : 7 W. R. 175

JOINDER OF CAUSES OF ACTION—
contd.

5. Separate suits relying on

same title — Infringement of title. It is not the
title, but the infringement of it, which constitutes
the cause of action ; and two suits are not neces-
sarily brought upon the same cause of action merely
because the title relied upon in both cases is one and
the same. Jardine, Skinner & Co. v. Shama
Soondtjree Debia . . , 13 W. R. 196

6. Suit for rent of two differ-
ent portions of land. In a suit for rent as of
a single howalah, where the defendants pleaded,
and the Court found, that the lands constituted
two howalahs it was held not to be necessary to
dismi-s the suit, if justice could be done between
the parties on the other issues. Suroop Chunder
Chowdhry v. Ni-MCHAND Chtjckerbutty

13 W. R. 284

Different suits brought

Overruhng Dhurum Rawoot
Sahoo

Ramnath
2 Hay 585

See Hard Chunder Turkochooramonee v.
IssuR Chunder Roy . . . 6 W. R. 296

2. Instalments of rent— Di-^ttnct

causes of action. Instalments of rent were held to
form different causes of action. Ram Soondur
Sein v. Kjrishno Chunder Goopto

17 W. R. 380
Sutto Churn Ghosal v. Obhoy Nund Doss

2 W. R. Act X, 31

In a case, however, where the plaintiff was the
lessor, and the defendant the lessee, of certain land
under an agreement whereby the defendant agreed
to occupy the land for two J^ears, and to deliver a
certain quantity of padd}- at four specified periods,
defendant failed to deliver the paddy. In a suit
for rent -.—Held, that, although the plaintiff' might
have sued for each instalment of rent as it fell due,
the aggregate of such unpaid instalments sho^lkl be
deemed one cause of action. Chockalinga Pillai
V. KujiARA Viruthalam , . 4 Mad. 334

3. _ Suit for possession and for

rent of a house, — A suit for possession of his
house and for rent were held to be causes of action
properly joined by a plaintiff is one suit. Jauo-
MOHAN Sahu v. Mani Lal Chowdhry

3 B. L. R. Ap. 77
s.c. JuGO MoHUN Sahoo v. Monee Lall Ch<av'

dhry 11 W. R. 542

4. Claims for a hundi and for

money paid in excess of rent. It was held
that a claim for a hundi may be joined in one suit
with a claim for the return of money paid in excess
of rent due. Brojokishore Cho\vdhrain v.
Khejia Soonduree Dossee . 7 W. R. 409
KiNNOo Monee Debia v. Shoboram Sirkar
3 W. R. 128

against divers persons — Civil Procedure Code,
J8'>9, s. S. S. 8 of the old Code of 1859 prohibited
by implication the joinder of divers causes of action
against clivers persons. Prahlad Sen v. Gopee
Bebee ' 4 N. W. 40

Tara Prosunno Sircar v. Koomaree Beeeb
23 W. R. 389

— Suit to set

survey

award — Different independent proprietors dispos-
sessed under same survey award. A village had
been divided into four separate portions, with four
different parties, who were afterwards dispossessed
under one and the same survey award, which demar-
cated the village as appertaining to the defendant's
estate. Held, that the four parties could sue joint-
ly. Anund Chunder Guose v. Komul Narain
fe^iijGH 2W.R.219

9. Suit for possession, for dam-
ages for refusal to register, and to enforce
registration. The owner of a share in a talukh
granted a sepatni thereof to the plaintiff, but before
registration granted a sepatni to the Bengal Coal
Company. In a suit against the owner and the
Company for possession of the sepatni talukh, for
damages caused by the refusal to register, and also
forlcompelUng registration of the sepatni talukh : —
Held, that three distinct causes of action wereim-
nroperlv joined. Prabhuram Hazra r. Robinson
3 B. L. R. Ap. 49 : 11 W. R. 398

10. Suit for possession of por-
tion of property, and to set aside deeds relat-
ing to another portion — Jlisjoimlcr of causes
of action. One of three widows of a Mahomedan
sued the other two, together with her deceased
husband'ssonsandother heirs, for possession of 18
out of 96 sehams of jn-operty left by the deceased,
to which she was entitled by right of inheritance
under the Mahomedan law : and to set aside two
deeds of bai-mukasa. or gift in lieu of dower, one
dated 28th July 1842, granted in favour of one
widow over a part of the property in suit, and the
other dated Uth March 1847, in favour of the
other widow, over other portions of the same pro-

9 B 2

{ 5895 )

DIGEST OF CASES.

( 5896 )

JOINDER OF CAUSES OF ACTION—

C07l.td.

pert}-. The lower Appellate Court dismissed the
suit on the ground of a misjoinder of causes of
action, and that there were two causes of action
which could not be tried together under Act VIII
of 18r)9, s. 8. Held per Kemp, J. (whose opinion
as senior Judge prevailed), that there was no mis-
joinder of causes of action ; that the case must be
remanded to the Judge for trial on the merits.
Amie.^x v. Asihun 3 B. L. B. a. C. 190

s.c. Ameerun v. Wussehun 12 W. E. 11

11. - Suits relating to different

documents — Civil Procedure Code, 1859, s. .9. In
trying together two distinct suits turning upon en-
tirely separate documents, a lower Appellate Court
was' field to have reversed the procedure, indicated
in s. 9 of the Code of Civil Proceduie, 1859. Ram

NiDHEE KOONDOO V. GOLUCK ChUNDER MoSHANTO

11 W. R. 280

12,

Distinct causes of action

against distinct defendants. S. 9 applied to a
suit of the nature described in s. 8, and not to a suit
in which distinct causes of action against distinct
defendants were improperly joined. Pbahlad Sen
V. GoPEE Bebee . . ' . . 4 N. W. 40
KosELLA Koer v. Behary Patuck

12 W. R. 70

13.

Direction to file separate

plaints instead of one — Procedure— Civil Pro-
cedure Code, 1859, s. 9. Where a plaintiff originally
filed a plaint against the defendant and other
persons, to invalidate a number of conveyances and
sales, of which some had been confirmed by decrees,
or had been made in execution of decrees, and
which related to land in two separate zilln.hs, and
the Subordinate Judge passed an order, purporting
to be an order under s. 9 of the Civil Procediu-e
Code, for the trial of the several causes of action
separately, and directed the plaintiff to file several
plaints, and there being no difiiiculty in respect of
the stamp duty chargeable on the institution of
the suits, from plaintiff suing in fcrmd vauperis
and the appellants having paid the proper stamp
duty on the appeals -.—Held, that the results of such
order and di)cction might be regarded as the in-
stitution of new suits, and that, as far as the suits
were cognizable by the Coiu-t of the Subordinate
Judge, or by the High Coiu't in appeal, the High-
Court might, in the absence of any objection on the
part of the parties, proceed to dispose of them.
The High Com-t accordingly dismissed the suits
relating to property in a district not cognizable in
the Court of first instance ; and in those appeals in
which, by the reason of the amount being less than
E5,000, the appeal lay to the District Judge, re-
turned such ajjpeals to the appellant for present-
ation in the proj.er Court. A direction in such a
case to file separate plaints was not within the
scope of s. 9 of the Civil Procedure Code. That
section did not require the plaintiff to file separate
plaints but provided for the separate trial of the
eeveral causes of action contained in the one plaint

JOINDER OF

contd.

filed on the institution of
DuMRu Lali, .

CAUSES OF ACTION—

RuTTA Bebee v.
2 N. W. 15a

14. Requisites to give right to-

join — Jurisdiction of Court over both cau'^es of
aciion. The right to join in one suit two causes of
action against a defendant cannot be exercised un-
less the Court to which the plaint is presented has
jurisdiction over both causes of action. Khimji
JiVRAJU Shettu v. Purushotum Jutaxi

I. li. R. 7 Mad. 171

15. Joinder of other suits with.

suits for recovery of immoveable property
— Civil Procedure Code, 1882, s- U. 8. 44 of the
Code of Civil Procedure, 1877, does not forbid the
joinder of several causes of action entitling the
plaintiff to the recovery of immoveable property,
but a joinder with such causes of action or other
causes of action of a different chatacter except in
the oases therein specified. Chidambara Pillai v.
Ramasami Pillai . . I. L. E. 5 Mad. 18L

16. - Suit for specific perform-
ance and return of money advanced on
agreement — Civil Procedure Code, 1877, s. 44 —
Misjoinder. The plaintiffs sued for specific per-
formance of an agreement in writing which set
forth, inter alia, that the defendants had agreed
to sell, etc., under " certain conditions as agreed
upon." Part of the purchase- money had been
advanced by the plaintiffs to the defendants, for
which the defendants had given their promissory
notes ; and the plaint contained a prayer that the
defendants be ordered to pay over the amount of
the notes. Held (affirming the decision of Wilson,
J.), that there was no misjoinder of causes of action
Avithin the meaning of s. 44, rule [a], of the Code of
Civil Procedure (Act X of 1877). Cutts v. Brown

I. L. B. 6 Calc. 328
5 C. L. R. 487 : 7 C. L. R. 171

17. Suit for administration and

accounts of separate estate — Civil Procedure
Code, 1882, s. 44. The plaintiffs who A\ere the
■\\'idow and daughter of A, sued the executors
of the will of A's father (B) for administra-
tion and account. There were four distinct subjects
of claim in the plaint, viz., (1) the estate of A's

i great-gi-andfather, (2) the estate of A's grand-
father, (3) the jewels and ornaments which formed
thestridhanof .4'5mother which were in J's posses-
sion at the time of his death, (^) a sum of Rl,90,000
1 which it was alleged that B had settled on A at the
time of his marriage. Subsequently to the filing of
' the suit, the first plaintiff amended the plaint and
i claimed the jewels and ornaments, which formed
I the subject-matter of the third claim, as her own
! property, alleging that they had been presented to
her on the occasion of her marriage. The plaint
1 prayed (i) for the declaration that a certain portion
of the estate in the hands of the first three defend-
! ants had been ancestral property in B's hands, (ii)
j for an account and administration, (iii) that the
I jewels and ornaments should be delivered up.

( 5S97 )

DIGEST OF CASES.

( 5898 )

.JOINDER OF CAUSES OF ACTION—

C07htd.

Hdd, that there was a misjoinder of causes of action ,
having regard to the provisions of rule (6), s. 44 of
the Civil Procedure Code (Act X of 1877). Part of
the claim in the plaint was for a portion of A's
estate, and was founded upon the plaintiff's alleged
right as heir of A. The other portion of the claim
in"the plaint— riz., that relating to the ornaments
— had no reference to A's estate, and was personal
to the first plaintiff herself. Ashabai v. Tyf.b Haji
Rahimtulia . . . I. L. R. 6 Bom, 390

18. Suit for moveable and im-

anoveable property— C/iv7 Procedure Code,
ISS'2, s. 44. 'J'hcre is nothing irregular in seeking to
recover moveable and immoveable property in the
same suit if the cause of action is the same in respect
of both. GiyaxaSambandhaPaxdaka SIannadhi
V. Kandasami Tambiran I, L. B. 10 Mad. 375

19. Suit for mortg.-'ge-debt

-with alternative prayer for sale— C'/t/^
Procedure. Code, s. 44. A suit for recover v of a
mortgige-debt with an alternative prayer for sale of
the mortgaged property, is not a suit for recovery of
immoveable property \\ithin the meaning of s. 44 of
the Civil Procedure 'Code. A claim for arrears of
rent therefore can be joined with a claim for re-
covery of a mortgage-debt with such an alternative
praver Mithout leave of the Court first obtained.
GoviNDA V. Mana Vikramak. Maxa Vikrajiax
V. GoviNDA . . . I. L. R. 14 Mad. 284

= 20. Administration suit— Jds

of maladministration regarding immoveable properlij
outside jurisdiction — Civil Procedure Code {1S82),
.?. 44, rule (a). In an administration action the
fact that amongst other things leases of immove-
able property granted by the executors to them-
Bclves are sought to be set aside on the ground that
such leases are acts of maladministration does not
make the action one for the recovery of immove-
able property, and leave under s. 44, rule (a), is not
necessary. Nistarini Dassi v. Nuxdo Lall Bose

I. L. R. 26 Calc. 891
3 C. W. N. 670

" 21 Misjoinder of causes of

^action— C/i'iZ Procedure Code {1SR2), s. 44—Zamin-
dari and appurtenant sir land ■■?old by separate deeds
— Suit for pre-emption of both zamindari and sir.
^Vhere a zamindari share and the sir land held with
it were sold to the same vendee by two separate
deeds of sale executed on the same daj% it was held
that a suit to pre-empt both the zamindari share
and the sir land was not liable to be defeated on
the ground of misjoinder of causes of action. Am-
'Eika Dat v. Ram Udit Pande

I. L. R. 17 All. 274

22. Civil Procedure

Code, JSS2, s. 44 — Suit btj assi(jnee of Mahomedan
widow for part of her dower and for part of the estate
of the tvidow's deceased husband. Held, that a .suit
by the assignee of a Mahomednn witiow for the
recovery of part of the assignor's dower, and of part
«of the estate of the assignor's late husliand, did

JOINDER OF CAUSES OF ACTION—

Cantd-

not contravene the provisions of s. 44, rule (b), of
the Code of Civil Procedure. Ashabai v. Tyeb Haji
Rahimtulia, I. L. R. 6 Bom. 390, dissented from.
Ahmad-uddin Khan v. Sikandar Begam

I. L. R. 18 AIL 256

23. — Civil Procedure

Code, s5. 31, 44 — Misjoinder of defendants and
causes of action — Suit by transferee from heir of
deceased Mahomedan against another heir and
transferee from such other heir. A plaintiff came
into Court claiming a portion of the inheritance of a
deceased Mahomedan on the allegation that he had ,
by two separate sale-deeds of different dates, pur-
chased the property from two of the heirs of the
deceased, and that the said property was withheld
from him by another of the heirs of the deceased,
who was in possession of some of it, and by certain
transferees of other portions from the said heir.
Both the remaining heir and the transferees from
him were made defendants. Held, that there was
no misjoinder of parties or of causes of action in
such a suit. Iiidar Kuar v. Gur Prasad I. L.
R. 11 All. 33, followed. With reference to the
objection that the claim included both moveable
and immoveable property, and that the leave of
the Court for the joinder of the two claims had not
been obtained, it was held that s. 44 of the Code of
Civil Procedure did not apply to such a case.
Giyana Sambandha Pandara Sannadhi v. Kiuida-
sami Tambiran, I. L. R. 10 Mad. 375, 506,
referred to. IVIazhar Ali Khan v. Sajjad Husain
Khan (1902) . . I. li. R. 24 All. 358

24. - Misjoinder of

causes of action — Suit including claims under two
separate mortgage-deeds. Held, that s. 44 of the
Code of Civil Procedure has no application to the
case of a plaintiff who, holding two mortgage-deeda
over separate properties, joins both in one suit for
sale or foreclosure. Chidambara Pillai v Rama-
sami Pillai, I. L. R. 5 Mad. 161, and Ambica
Dat V. Ram Udit Pande, I. L. R. 17 All. 274,
referred to. Raghubar Davat. v. Jwala Singh
(1903) . . . I. L. R. 25 All. 229

25. Civil Procedure Code,

1882, s. 44. S. 44 of the Civil Pi-oeedure Code
is not applicable to a suit unless it is for the
recovery of immoveable property or for declara-
tion of title to immoveable propertj-. Even in
these ca.ses the defect of multifariousness is cured
if leave of the Court is obtained previous to the
bringing of the suit. Nunda Lal Bose v.
NisTARtMi Dassee (1902)' l7 C. "W. N. 353

26. Civil Procedure Code, 1882,

S. 45 — Suit — Agricultural holding — Fishery —
Bengal Tenancy Act (Act VIII of ISSo), s. 193—
Civil Court. A suit for a consolidated amount con-
tracted to be paid the defendants on account of
a fishery, which they claimed as a right appurte-
nant to the holding, is, by virtue of s. 45 of the
Civil Procedure Code, maintainable. A suit for
the rent of a fishery is entertainable in ordinary

( 5899 )

DIGEST OF CASES.

( 5900 )

JOINDER OF CAUSES OF ACTION—
conoid.

Civil Courts, which have jurisdiction in rent suits.
Shib Pbosad Chaudhuki v. Vakai Pali (1906)

I. li. B. 33 Calc. 601

JOINDER OF CHARGES.

See Charge.

See Contempt of Court — Penal Code.

s. 174 . . . 5 C.W.N. 131
See Criminal Procedure Code, 1898, ss.

222, 239 . . I. Ij. R. 30 Bom. 49
I. li. R. 33 Bom. 221

See Criminal Procedure Code, ss. 225
to 237 . I. L. B. 33 Bom. 77

See Criminal Procedure Code, 1898,
ss. 233 TO 239.

See Criminal Procedure Code, s. 235.

13 C. W. N. 1062

See Criminal Proceedings.

B. L. B. Sup. VoL 750

I. L. B. 6 Calc. 96

I. L. E. 5 Mad. 20

I. L. B. 14 Calc. 128, 358, 395

I. L. B. 9 All. 452

I. L. B. 11 Mad. 441

I. L. R. 12 Mad. 273

I. li. B. 20 Calc. 537

1 C. W. N. 35

Charges for distinct offences

— Separate charges and trials- — Several offences iinder
one section of Penal Code. In a case of several
offences under one section of the Penal Code, the
proper way is to try the accused (under separate
charges)Tfor each_of the several distinct offences
under the section.' Queen v. Sobrai Gowallah
20 W. B. Cr. 70
2. Criminal Proce-

dure Code, 1872, s. 453— Practice. S. 453 of the
Criminal Procedure Code simply placed a statutory
limit on the number of charges which ma}' legally
form part of a single trial. There was nothing in
the section, however, to prevent an accused from
being separately charged and tried on the same day
for any number of distinct offences of the same
kind committed within the year. Empress v.
Dhononjoy Baraj

I. L. R. 3 Calc. 540 : 1 C. L, B. 478

3. Dacoity and receiving stolen

property — Distinct offences — Penal Code, ss. 395,
412. The practice of dividing the facts which con-
stitute parts of one offence into several minor
offences condemned. A person convicted of dacoity
under s. 395, Penal Code, cannot be convicted also
of dishonestly receiving stolen property transferred
by commission of dacoity under s. 412, when there
is no evidence of the commission of more than one
offence. Queen v. Shahabut Sheikh

13 W. R. Cr. 42

Bobbery on same night in

several different places — Criminal Procedure

JOINDEB OF CHABGES— conW.

Code, 1872, s. 453 — Separate and distinct offences of
same kind. \Vhere persons are committed on three
separate and distinct charges for three separate and
distinct robberies committed on the same night in
tliree different houses, they must be tried separately
on each of the three charges. Queen v. Itvtaree
Dome 6 "W. B. Cr. 83

Theft and house-breaking

by ni^ht— Criminal Procedure Code, 1872, s. 453.
A person accused of theft on the 1st August, and
of house-breaking by night in order to steal on the
2nd August, both offences involving a stealing from
the same person, was charged and tried by a Magis-
trate of the first class at the same time for such
offences, and sentenced to rigorous imprisonment
for two years for each of such offences. Held, that
the joinder of the charges was regular under s. 453
of Act X of 1872, and the punishment was within
the limits prescribed by s. 314. Empress v. Umeda,.
unreported; observed on bv Straight, J. In the
matter of Daulatia . ^ I. L. B. 3 All. 305

6. - Offences of the

same kind committed in respect of different persons — •
Criminal Procedure Code {Act X of 1872), ss. 452,
453. Wnere an accused was charged under one-
charge including four counts, viz., (i) house-break-
ing by night with intent to commit theft in the
house"^ of A ; (ii) theft from the same house ; (iii)
house-breaking bj- night with a like intent in
the house of B ; (iv) theft from that house ; and
where he pleaded guilty to the first and third
charges": — Held, that the case was within the terms
of s. 458, and that the words " offences of the same
kind " are not to be limited by the explanation to
that section, but include a case like this, where a
man has within a year committed two offences of
house-breaking. Held, also, that the words " off-
ences of the same kind " are not limited to offences-
against the same person. Per Field, ./. — The-
explanation to s. 453 must be understood as extend-
ing and not as limiting the meaning of that section.
Per NoRRis, /. — Care should be taken that accused
persons are not prejudiced by charges being joined,
and the Court should at all times be anxious to
lend a willing ear to any application upon their
behalf for separation of charges and for separate
trials upon separate charges. Empress v. Murari,
I. L. R. 4 All. 147, dissented from. Manu Miya
V. Empress

I. L. B. 9 Calc. 371 : 11 C L. R. 53

7. - Theft, receiving stolen pro-
perty, giving and receiving illegal gratifi-
cation, and false evidence — Criminal Proce-
dure Code, 1S72, s. 452 — -Separate charges — -Distinct
offences. The accused persons were tried on 27
charges, comprising the offences of theft, abetment
of theft, and receiving stolen property, in 1872-73 ;
similar offences in 1873-74 ; similar offences in
1874-75 ; the giving and receiving of illegal gratifi-
cations to and by public servants in 1874-75 ; and
finally, the fabrication and abetment of fabrication
of false evidence in 1876. One of the accused wa&

( 5901 )

DIGEST OF CASES.

( 5902 )

JOINDER OF CHARGES— contd.

convicted on two heads of charge, and the rest ac-
quitted. The convicted appealed against his con-
viction and sentence ; and the Government appeal-
ed against his acquittal on the other heads as well
as against the acquittal of the rest. Held, that the
trial was irregular^under s. 452 of the Code of
Criminal Procedure ; and so would be the hearing
of the appeal. The High Court, however, heard the
appeal in respect of offences in 1874-75 only, it
appearing that this course did not prejudice the
accused persons who had been fully and fairly
tried for those offences. Queen v. Hanmanta

I. li. R. 1 Bom. 610

8. Receiving, retaining, and

dealing in stolen property— C'ri>)n«a/ Proce-
dure Code, 1872, s. 453— Penal Code, ss. 411, 413,
Offences of different kinds— Procedure. A prisoner
cannot be tried at the same trial for receiving or
retaining (s. 411, Penal Code) and habitually receiv-
ing or dealing in (s. 413) stolen property. The
proper course is to try the accused first for the
offences under s. 411, and if he is convicted, to try
him under s. 413 putting in evidence the previous
convictions under s. 411, and proving the finding
of the rest of the property in respect of which no
separate charge under s. 411 could be made or tr'ed
by reason of the provisions of s. 453 of the CWminal
Procedure Code. In the matter of the petition of
Uttom Kookdoo. Ejipress v. Uttom Koo>doo

I. Ii. R. 8 Calc. 634 ; 10 C. L. R. 466

9. Rioting and hurt— Penal Code,

ss. 147, 323 — Offences made up of several offences.
Rioting and hurt in the course of such rioting are
distinct offences, and each offence is separately
punishable. Empress of India v. Ram Adhin

I. L. R. 2 All. 139

10.

Criminal Proce-

dure Code, s. 454 — Committal on two separate charges
— Trial as for one offence — Separate trial. Where
persons are charged with rioting and also with
causing hurt, although they may be tried as for one
offence under s. 454 of the Criminal Procedure
Code, it is not illegal to try them for both offences
separately'. In the matter of the petition of
Amieuddin. Amirtjddin v. Farid Sarkar

I. Ii. R. 8 Calc. 481

11. Abandonment of child and

culpable homicide— Penal Code, ss. 304, 317—
Exposure of child. Where a mother abandoned her
child, with the intention of wholly abandoning it ar\d
knowing that such abandonment was likely to
cause its death, and the child died in consequence
of the abandonment : — Held, that she could not be
convicted and punished under s. 304 and also under
s. 317 of the Penal Code, but s. 304 only. Empress
OF India v. Banni . . I. L. R. 2 All. 349

12. Cheating different persons

— Criminal Procedure Code, 1872, s. 453 — Joinder
of charges — Offences of the same kind committed in
respect of different perfons. M was accused of
cheating G on two different occasions, and also of
cheatirg K on& third occasion. The three offences

JOINDER OF CHARGES— corj/(/.

were committed within one year of each other, and
31 was charged and tried at the same time for the
three offences. Held, that such joinder of charges
was irregular, inasmuch as the combination of three
offences of the same kind for the purpose of one
trial can only be where such offences have been
committed in respect of one and the same person,
and not against different prosecutors, within the
period of one year, as provided in the Criminal Pro-
cedure Code. Empress of India v. Murari

I. Ii. R. 4 All. 147

13. . Misappropriation of money

at different times — Postmaster — Criminal Prc-
cedure Code, ss. 233, 234 — Offences of the same kind
committed in respect of the same person, ^^^le^e a
postmaster was accused of having, on three different
occasions within a year, dishonestly misappro-
priated moneys paid to him by different persons for
money orders : — Held, that, the offences of which
such person was accused being the dishonest mis-
appropriations by a public servant of public moneys
(for, as soon as they were paid, they ceased to Ve
the property of the remitters), such offences were
" of the same kind " within the meaning of s. 234
of the Criminal Procedure Code, and such person
might therefore, under that section, be charged
with and tried at one trial for all tliree offences.
Empress v. Murari, I. L. B. 4 All. 147, observed
on. Queen-Empress v. Juala Prasad

I. Ii. R. 7 All. 174

14. Charge of three offences of

the same kind — Criminal Procedure Code (Act
X of 1882), s. 234. An accused was charged with
criminal breach of trust as a public servant in
respect of three separate sums of monej'^ deposited
in the savings bank under three separate accounts.
The third of these charges related to the misappro-
priation of 11195 composed of two separate sums of
R150 and R45 alleged to have been misappro-
priated on the 16th and 25th November, respect-
tively. These sums the accused in his statement at
the trial stated he had paid over on those dates to
the depositors, and produced an account book
showing entries of such jjaj-ments on those dates.
This statement was proved to be untrue, and the
accused was convicted. On an application to quash
the conviction on the ground that the trial had been
held in contravention of s. 234 of the Code of Crimi-
nal Procedure : — Held, that the entries in the account
books did not clearly show that the misappropri-
ation of the sum of J1195 took place on two dates,
or consisted of two transactions, the entries ha\nng
been made for the purpose of concealing the criminal
breach of trust ; and that, under the circum-
stances, the criminal breach of trust with regard to
the R.195 was really one offence and could be in-
cluded in one charge. In the matter of Luckmi-
NARAiN . . . I. Ii. R. 14 Calc. 128

15. Framing incorrect record,

forgery and using forged document — Penal
Code (Act XLV of 1860), ss. 167, 466, 471— Sepa-
rate trials — Offences of the same kind — Amendment
of charge. The prisoner was committed for trial on

( 6r03 )

DIGEST OF CASES.

5904

JOINDER OF CHARGES— con?'/.

fifty-five charges, including three charges under
ss. 1G7, 466, and 471 of the Penal Code. At the
trial before the District Judge sitting with assessors,
the Court informed the prisoner that the trial would
be confined to the three charges last mentioned.
The prisoner was convicted on these, but the Court
allowed evidence to be adduced by the prosecution
on all the remaining charges, and in respect of these
the prisoner was acquitted. On appeal to the High
Court •—Held, that the District Judge should have
exercised the powers conferred on him by ss. 445
and 446 of the Code of CViminal Procedure, and
then have proceeded to hold separate trials ; that
he should not have tried together the charges under
ss. 167 and 466 of the Penal Code, as the offences
were not of the same kind within the meaning of
s. 453 of the Code of Criminal Procedure ; but the
convictions on the^e charges were upheld, as it did
not appear that the prisoner had been prejudiced
by the mode of trial adopted. In the milter of
the petition of Sreenath Kur. Empress v.
Sreenath Kur ^^,

I. li. R.' 8 Calc. 450 : 10 C. L. R. 421

le.

_ Offences one of which is a

summons and the other a warrant case—

Summons and warrant cases — Criminal Procedure
Code, ss. 247 and 253— Procedure. In the investi-
gation of a complaint, which forms the subject of
two distinct charges arising out of the same trans-
action, one of which is a summons and the other a
warrant case, the procedure should be that pre-
scribed for warrant cases. Rajnarain Koonw^.r v.
Lala Tamoli Raut . I. L. R. 11 Calc, 91

17.

Obtaining minor for prosti-

tution— Criminal Procedure Code, ss. 284 and 537
—Peml Code, *-.s. 372, 373— Misjoinder of
charges — Immaterial irregularity. A ^\■oman, being
a member of the dancing gir! caste, obtained
possession of a minor girl and employed her
for the purpose of prostitution ; she subsequently
obtained in adoption another minor girl from
her parents who belonged to the same caste. She
and the parents of the second girl were
charged together under ss. 372, 373 of the
Penal Code. The charges related to both girls.
Held, that the two charges should not have b3en
tried together, but the irregularity committed in
so trying them had caused no failure of justice.
Queen-Empress v. Ramanka

I. L. R. 12 Mad. 273

18. Rioting and criminal tres-

pass— Criminal Procedure Code (Act X of 1882), ss.
233, 234, 537 — Separate charges for distinct
o§ences. Five persons were charged with having
committed the offence of rioting on the 5th Decem-
ber ; four out of those persons and one F were
charged with having committed the offence of cri-
minal trespass on the 9th December. These two
cases were taken up and tried together in one trial
and were decided by one judgment. Held, that the
trial was illegal, and the defect was not cured by
e. 537 of the Criminal Procedure Code. In the

JOINDER OF CHARGES^onW.

matter of the petition of Chandi Singh. Queen-
Empress V. Chandi Singh

I. L. R. 14 Calc. 395

19.

Receiving stolen property

and fhQtt— Criminal Procedure Code, 1882, ss. 233,
239— Joint trial. B, M, K, and B, were jointly
tried, B for receiving stolen property under s. 411
of the Penal Code and the others ioc theft under s.
380, and were convicted. Held, that the joinder of
the above charges was illegal, and was a ground for
setting aside the conviction and ordering a new
trial, but not for discharging the accused. In the
matter of David, 6 C. L. E. 245, distinguished.
BiSHNU Banwar v. Empress . 1 C. W. N". 35

20. — Offences committed by

different accused against different persons
at different times — Criminal Procedure Code,
1SS2, ss. 235 and 239 — Joint trial. If, in any case,
either the accused are likely to be bewildered in
their defence by having to meet many disconnected
charges, or the prospect of a fair trial is likely to be
endangered by the production of a mass of evidence
directed to many different matters and tending by
its mere accumulation to induce an undue suspicion
against the accused, then the propriety of combin-
ing the charges may well be questioned. The four
accused who were members of the Dharwar police
force were charged with ill-treating the complainant
H, his wife R, and his son-in-law Y, during the
course of a police investigation into a case of theft.
They were committed for trial for the following
offences : (i) All the accused for an offence under
s. 330, Penal Code, the charge covering several acts
of violence alleged to have been committed against
H during his confinement, which forms the subject
of the second heal of the charge, (ii) All the
accused for a'l offence under s. 348, Penal Code,
committed against H between the 5th and the 18th
January 1889. (iii) Accused Nos. 1 and 3 for an
offence under s. 348, Penal Code, committed against
R on the 15th January 1889. (iv) Accused No. 3
for an offence under s. 330, Penal Code, committed
against R on the 14th January 1889. (v) All the
accused for an offence under s. 330, Penil Code,
committed against Y between the 15th and 23rd
January 1889. (vi) All the accused for an offence
under s. 348 committed against Y d iring the same
period, (vli) Accused Nos. 1, 2, and'3, for an offence
under s. 346, Penal Code, committed against Y
between 8th February and 9th March 1889. The
accused M'ere committed to the Court of Session in
two separate cases. The Sessions Judge tried both
cases together under ss. 235 and 239 of the Code of
Criminal Procedure (Act X of 1882), as the same
four persons were accused in both ca,ses and " were
charged with different offences committed in what
was virtually one transaction, namely, a police in-
vestigation into an alleged theft." The accused
were convicted of the offences charged and sen-
tenced to various terms of imprisonment. Held,
reversing the convictions and sentences, that the
combination of the two cases necessarily prejudic3d
the accused by making it possible for the prosecu-

( 5905 )

DIGEST OF CASES.

( 5906 )

JOINDER OF CHARGES— co?i/<f.

tion to bring forward a mass of evidence at the
trial relating to many matters, some only remotely
connected with relevant questions which must to
some extent have had the efiect of embarrassing
and confusing the accused. Held, also, that al! the
several acts of violence alleged to have been com-
mitted against H during his illegal confinement
could be rightly regarded as constituting a single
transaction. But the act of violence said to have
been committed against i? at a different place could
not be regarded as a part of that transaction. Nor
was the \vrongful confinement of R by accused
Nos. 1 and 3 on the 15th January a part of the
transaction constituted by the hurt caused to her
by accused No. 3 on the previous day. In the same
way all acts of hurt caused to 7 during his first
period of A\Tongful confinement would with the
confinement form a part of the same transaction ;
but the second period of confinement, which was
said to have commenced some time after the termi-
nation of the first period of confinement, would be
a separate transaction. Queex-Entpress v.

Fakirapa . , . I. L. R. 15 Bom. 491

21. Trial of separate offences

and accused together — Criminal Procedure
Code, ss. 233, 234, and 537 — Irregular it// in criminal
trial. Where four accused were at one and the
same trial tried for offences of murder and robbery
committed in the course of one transaction, and for
another robbery committed two or three hours pre-
viously and at a place close to the scene of the
robbery and murder :~Held, that the trial of these
separate offences together, though an error or irre-
gularity within the meaning of s. 537 of the Code of
Criminal Procedure, would not necessarily render
the whole trial void. Queen-Empress v. Mulu\

I. Ii. R. 14 All. 502

22.

Separate charges for dis-

tinct offences — Criminal Procedure Code (Act X
of 1SS2), ,VA'. 233, 234, 235, and 537— Using forged
documents— Charges for using eleven forged documents
in three sets on three separate occasions — Irregularity
in criminal trial. The accused was charged with
•using as genuine eleven forged receipts M-hich were
put in by him in sets on three separate occasions,
each set with a written statement in three suits
pending against him. A charge ^^•as framed
against him in respect of the using of each set of
receipts, and he was tried on these three charges
and convicted and sentenced. On appeal it was
contended that a separate charge should have been
framed in respect of each of the documents, as the
using of each document constituted a distinct and
separate offence, and that consequently the trial
was illegal and should be set aside, the accused
having been tried for more than three offences in
one and the same trial. Held, that, as the " using"
charged was the putting in of each set of documents
with the respective written statements in the three
suits, and as there was nothing to show that any of
the documents had been used at any other time,
there was only one using in respect of each set of
documents, and that there was therefore no valid

JOINDER OF CHARGES— cow^f/.

ground for questioning the conviction. Queex-
Empress v. Raghu Nath Das

1. 1. R. 20 Calc. 413

23. Offences of same kind not

■within year — Failure of justice — Application of
s. 537 of the Code of Criminal Procedure — Code of
Criminal Procedure {Act V of 1S9S), ss. 233, 234,
and 537. Held, that s. 537 of the Code of Criminal
Procedure can be applied to any case in which the
trial has been held on charges joined together con-
trary to s. 234 of that Code. In the matter of Luchmi-
narain, I. L. R. 14 Calc. 128 ; Queen-Empress
V. Chandi Singh, I. L. R. 14 Calc. 395 ; and Raj
Chunder Mozumder v. Gour Chunder Mozumdar,
I. L. R. 22 Calc. 176, overruled. In the matter
of Abdur Rahman . I. L. R. 27 Calc. 839
4 C. W. N. 656

24.

Distinct offences— Posies-

sion of forged or counterfeit currency notes — Distinct
offences — Separate trial — Penal Code {Act XLV of
1S60), ss. 411 and 489 (c). Offences under ss. 411
and 489 (c) of the Penal Code are distinct offences,
and should be tried separately. Mohendro N.4Th
Das Gupta v. Emperor (1902)

I. L. R. 29 Calc. 387 ; s.c. 6 C. W. N. 550
25. Misappropriation and cri-
minal breach of trust— Pe/iaZ Code (Act
XLV of 1S60), s. 406— Criminal breach of trust —
Charge — -Criminal Procedure Code, ss. 222 and 234.
Where an accused person is charged with having
misappropriated or committed criminal breach
of trust in respect of an aggregate sum of money,
the whole sum being alleged to have been wrong
fully dealt with by the accused within a period
not exceeding one year, the mere fact that the
items composing such aggregate sum are specified
and may be more than three in number will not
render the charge obnoxious to the prohibition
implied by s. 234 of the Code of Criminal Pi-o-
cedure. Subrahtnariia Ayyar v. King-Emperor,
I. L. R. 25 Mad.,. 61, distinsuished. Emperor
V. Gtjlzari Lal (1902) . I. Ij.R. 24 All. 254

26. Multitude of charges — Code

of Criminal Procedure (Act V of 1S9S). ss. 234,
537 — Joinder of a multitude of charges — Irregularity
— Illegality — Trial, illegality in the mode of, if cur-
able— Power of Appellate or Revisional Court to
cancel illegality aiid to appropriate verdict of jury
only to what is legal — Functions of Judge and jury.
Disobedience to the express provision of the law as
to the mode of a trial cannot be regarded as a me"e
irregularity, and as such is not curable under s. 537
of the Code of Ci-iminal Procedure. The joinder
at one trial, of more charges than three for offences
of the same kind, and extending over a period
longer than a year, contravenes s. 234 of the Code
of Criminal Procedure, and is an illegality not cur-
able under s. 537. When the course pursued at the
trial was illegal, a Court of Appeal or Revision
cannot amend it by arranging afterwards what
might or might not have been properly submitted
to the jury and thereupon support the conviction

( 6907 )

DIGEST OF CASES.

JOINDER OF CHARGES- con/cZ.

or appropriate the finding of guilty to so much of
it as was legal. Meaning of the word " irregu-
larity ■' discussed. Smurthwaite v. Hannay, {l^i)4]
A. C. 494, referred to. Abdur Rahman v. The
Empress, 4 C. W. N. 657, disapproved. Subra-
MAxiA Iyer v. King-Emperdr (1901)

I. L. R., 25 Mad. 61

s c. 5 C. W. H". 866

L. R. 28 I. A. 257

27. — : Oflfenees falling under two

definitions — Criminal Procedure Code (Act V
of 1S9S), ss. 196 and 235 — Sanction to fro.secute —
Trial for more than one offence. The accused was
committed for trial before a Sessions Court, on a
charge of abetment of dacoity, under s. 116 of the
Indian Penal Code (Act XLV of 1860). In the
course of the trial the Assistant Sessions Judge
added an alternative charge under s. 511 of the
Code, and sentenced the accused under ss. 395, 116
and 511 of the Indian Penal Code (Act XLV of
1860). In appeal the Sessions Judge held that the
evidence disclosed the offence of an attempt to
commit the offence of collecting arms, etc., with
the intention of waging war against the Queen,
under s. 122 ; and, as no charge mvJcr that section
could be framed for want of the sanction of Govern-
ment under s. 196 of the Criminal Procedure Cede
(Act V of 1898), the accused could not be brought
to trial at all. He therefore reversed the convic-
tion and acquitted the accused. Held (reversing
the order of acquittal), that the mere fact that no
charge for the graver offence under s. 122 of the
Indian Penal Code (Act XLV of 1860) could be
framed for want of Government sanction, did not
render the trial for the minor offence of attempting
or abetting dacoity either irregular or illegal. Per
FuLTO>r, J. — According to the 2ml clause of s. 235
of the Criminal Procedure Code (Act V of 1898), if
the accused abetted an offence under s. 122 of the
Penal Code, and V)y the same speech also attempted
or abetted the offence of dacoity, he could be tried
for each of these offences ; but, as that section is
controlled, as regards the offence against the State,
by the provisions of s. 196 of the Criminal Proce-
dure Code, its operation in this case is restricted to
the minor offence, for which the accused could
legally be charged and tried. Queen- Empress v.
Karigovda, I. L. R. 19 Bom. 51, and In re Narjarji,
I. L. R. 19 Bom. 340, distinguished. Qtteen- .
Empress v. Anaxt Pcjranik (1900)

I. L. R. 25 Bom., 90

28. Offences unconnected with

each other— Criminal Procedure Code (Act V cf
lli9S), ss. 233, 234, 235 and 537— Joinder of separate
and distinct charges — Confession of co-accused plead-
ing (juiUij — Corroboration — Irregularity — Admissihil-
ity of confession of one accused, against another on a
different charge — Prejudice. A \\as charged with
three separate acts of criminal breach of trust as a
public servant, under s. 409, Indian Penal Code,
and B wan charged with abetting these iiarticular
acts of criminal breach of trust by A, and also,
upon an alternative charge under ss. 411 and 380,

JOINDER OF CHARGES— fo»<<?.

Indian Penal Code, in respect of a document found
in his house and entu-elj^ unconnected with the acts-
in respect of which A was charged. Both weve
tried together, and A was convicted and sentenced
on his plea of guilt, and a confession n\ade by A
implicating B was ured again&t B ; B was convict-
ed and sentenced separately for abetment of the
criminal breach of trust by A, as also on the alter-
native charge under ss. 411 and 380, Indian Penal
Code. Held, that, in the absence of any corrobor -
ation of the confession of A relating to the specific
acts of criminal breach of trust, B could not be
convicted of abetment of those acts by A. Also,
that the finding of the document in the house of B
could not by itself form any such corroboration.
Also, that the joint trial of B for the abetment of
criminal breach of trust and for offences under
ss. 411 and 380, Indian Penal Code, which were
quite unconnected ^^ith the acts of criminal breach
of trust, was improper, and that B ^\•as prejudiced
by such joint trial by reason of the confession of ..4
having been used and treated as a substantial part
of the evidence against him in support of the second
charge. Niktjnja Behari Roy u. Queen-Empress
(1900) , . . . 5 C. W. N. 294

29. " Same transaction " — Joint

trial— Several persons — Offences not committed in
same transaction — Irregularity — Illegality — Crimi-
nal Procedure Code (Act V of 189S), ss. 235, 239 and
537— Penal Code (Act XLV of 1860), s. 225— Indian
Railways Act (IX of 1S90), s. 12S. Gobind Koeri
was caught by some persons pkvcing clods of earth
on a railway line. While being taken a^\ay by
them, Gobind Koeri was shortly afterwards rescued
by Hira Mandf r and Manger Koeri. Gobind Koeri
was charged under s. 128 of the Railways Act for
placing clods on the line. Hira Mandcr and Manger
Koen were charged under s. 225 of the Penal Code
with rescuing Gobind Koeri from lawful custody.
All three persons were tried jointly in one trial, and
were convicted. HelrJ, that, the offences not having
been committed in the same transaction, the persons
accused of each of these offences should have been
tried separateh', and that the Court had no juris-
diction to try them in the same trial. Subramania
Iyer v. King-Emperor I. L. R. 25 Mad. 61,
followed. Gobind Koeri v. Emperor (1902)

I. L. R. 29 Calc. 385 ; s.c. 6 C. W. N. 468

30. Criminal Proce-
dure Code (Act F of 1898), ss. 234 and 235— Number
of charges. The fact that offences are committed
at different times does not necessarily show that
they may not be so connected as to fall within s. 235
of the Criminal Procedure Code (Act V of 1898).
The occasions may be different, but there may be a
continuity and a community of purpose. The real
and substantial test by which to determine whether
several offences are so connected as to form the same
transaction depends on whether they are so related
to one another, in point of purpose, or as cause and
effect, or as principal and subsidiary acts, as to
constitute one continuous action. The accused
was tried at one trial for three offences ; (i) for

( 5909 )

DIGEST OF CASES.

( 5010 )

JOINDER OF CHARGES— conW.

having in hia po5>session on the 9th October 1902,
certain stencil plates for the purpose of counterfeit-
ing Hubbock and Company's trade-mark on two
kegs of paint (s. 485 of the Indian Penal Code), (ii)
for having, on or about the 7th October, 1902, sold
12 kegs of paint to which a counterfeit trade-mark
was affixed (under s. 486 of the Indian Penal Code),
and (iii) for having in his possession for sale on or
about the 9th October, 1902, certain kegs of paint
purporting to be Hubbock's paint, having a counter-
feit trade-mark (under s. 480), He was convicted
and separately sentenced for these ofiences. He
appealed, contending that the trial was illegal, in-
asmuch as he had been charged at one trial with
offences which were not connected together so as to
form the same transaction under s. 235 (2) of the
Criminal Procedure Code (Act V of 1898). Held,
dismissing the appeal, that the trial was not illegal.
There was a community and also a continuity of
purpose in the possession and the sale — the pos-
session of the instruments was the cause, the posses-
sion of the kegs and their sale the effect, and both
the possession and the sale had one intention and
aimed at one result, namely, that of deceiving
buyers into purchasing what was not the genuine
article of Hubbock and Company. Emperor v.
Sherufali.i Alliehoy (1902)

I. L. R. 27 Bom. 135

31. Criminal Proce-

cedure Code, ss. 222, 233, 234, 235— Three di'ttinct
offewes of criminal breach of trust and three distinct
offences of falsifyiiig accounts cannot he tried together.
It is illegal to try a person on a charge ^\hich Jleges
three distinct acts of criminal breach of trust and
three distinct acts of falsifying accounts. S. 234
of the Code of Criminal Pi'occdure will not appl}', as
the offences of criminal breach of trust and falsifi-
cation of accounts are not of the same kind ; neither
will s. 2?'5 cover the case, as the several offences
cannot be said to form part of the same transaction.
King-Emperor v. Nathlal Bapuji, 4 Bom. L. R.
433, referred to. Although, under s. 222 of the
Code of (Jjiminal Procedure, a charge for the gi"oss
amount misappropriated within a period of twelve
months shall be deemed to be ii charge of one offence
within s. 234 ; it does not follow that the
acts so charged should be considered to be one
transaction within the meaning of s. 235. Kasi

ViSVAXATHAN V. EmPEROR (1907)

I. L. R. 30 Mad, 328

32. Criminal Proce-
dure Code (Act V of 1S9S), ss. 233, 235, 537--Mis-
joinder of charges — Ohjection first taken on appeal —
Irregularity. A person was convicted on three
charges, namely ; — (i) abetting the falsification of a
document (an account book), (ii) fraudulently de-
stroying and secreting documents, and (iii) ttbetting
criminal breach of trust ; no objection on the
ground of misjoinder being taken before the Sessions
Judge. The only manner in which the alleged
falsification and destruction were connected was
that the account book and the documents were
both in the custody of the accused, who thus had

JOIISTDER or CHARGES— coraW.

opportunity to falsify the one and to destroy the
other. It was not suggested that the account book
was falsified in order to conceal the fact that docu-
ments had been destroyed, or that documents had
been destroyed in order to prevent the yjarticular
falsification from being detected. Held, that the
offences charged did not constitute one 'eries of
acts so connected together as to form the same
transaction within the meaning of s. 235 of the
Code of Criminal Procedure. Held, also, that the
misjoinder could not be treated as an irregularity
curable under s. 537, and that the conviction must
be set aside. Suhramania Iyer v. King-Emperor,
I. L. B. 25 Mad. 61, followed. Kristts-asami
PiLLAi V. Emperor (1902) I. Ij. R. 26 Mad. 12&

33.

Criminal Proce-

dure Code [Act V of 1S9S), s. 235— Kidnapping of
child, and assaxdt, at a later date, on mother — Con-
viction— Validity. An accused Mas charged and
tried at one trial with the offences of kidnapping,
MTongful confinement, and assault, and was con-
victed. The case for the prosecution was that the
accused had kidnapped and wTongfuUy confined a
boy, and that, ^hen the boy's mother, a day or
two afterwards, went to the house of the accused
and asked that the boy might be allowed to return
to her, the accused assaulted the mother. The
conviction was upheld by the Sessions Coiu't. On
a revision petition being preferred in the High
Court : Hild, that the charge of assault ought to
have been brought separately and tried separately.
The kidnapping and the assault were not committed
in one series of acts so connected together as to
form one transaction. The offence of kidnapping
is complete when the minor is actually taken from
lawful guardianship, and it is not an offence con-
tinuing as long as the minor is kept out of suck
guardianship. Even assuming that on the facts of
this case the process of " taking " or " enticing "
was going on at the time of the alleged assault on
the mother, it was doubtful whether the assault
was one of a series of acts so connected together as
to form the same transaction, and the charge of
assault should have been brought and tried sepa-
rately. Chektttty v. Emperor (1902)

I. L. R. 26 Mad. 454.

34. Joinder of charges

— Criminal Procedure Code [Act V of 1898), ss. 235,
307 — One transaction — Criminal Procedure Code —
Reference against verdict of jury — High Court's
power and duty. In a reference under s. 307^
Criminal Procedure Code, although the High Court
is bound in dealing with it to give due weight to
the opinion of the Sessions Judge and the verdict
of the jury, still it can decide for itself the question
of guilt or otherwise of the accused. Where the
accused was tried on seven charges — three of cheat-
ing, under s. 420. Indian Penal Code : two of for-
gery under ss. 4G6 and 468, Indian Penal Code, one
of using as genuine a forged document under s. 471,
Indian Penal Code, and one of cheating by person-
ation under s. 419, Indian Penal Code : Held, that

( 5911 )

JOINDER OF CHARGES— coricZc?.

under the circumstances of the case, the trial of the
accused on all these charges was perfectly regular
under s. 235, CViminal Procedure Code, as the otl-
ences with which the accused was charged all
formed one transaction. Birendro Lai v. Tne
Emperor, I. L. R. 30 Calc. 822, and Bhagwath Dial
V. The King-Emperor, 2 Or. L. J. 34, distinguished.
The Emperor v. Sherufalli Allibhoi/, I. L. B. 27
Bom. 135. referred to and followed. Emperor v.
Sri Narain Prasad (1907) . U C W. N. 715

35 One charge for three

different offences, if legal— Criminal Proce-
dure Code {Act V of 1S9S), ss. 233, 537— Charge-
Error in form— Prejudice. Where under an
arrangement made with the concurrence of their
pleaders the accused were jointly tried for three
offences committed against three different persons
on the same date and forming part of the same
transaction, and there was framed one charge
against them, instead of three, and it ran thus :
"'That you on or about the 3rd July at B. committed
theft of paddy from the fields of (a) Srinath
Das, (b) Jhumar Pramanick, (c) Lasker Pramanick,
and thereby committed an offence punishable
under s. 379 of the Indian Penal Code and
within my cognizance." Held, that, although
strictly speaking three separate charges should
have been drawn up in identical terms for the
three offences under s. 379, Indian Penal
Code, yet as in the one charge framed the
three offences had been kept separate and were dis-
tinguished by the letters {a), (b) and (c), the error
in framing one charge, was an error in form rather
than in substance, and as such did not amount to
an illegality but was an irregularity which would be
cured by the provisions of s. 537, Criminal Proce-
dure Code, unless it was shown that the accused
had been prejudiced or that a failure of justice had
been occasioned in consequence thereof. Gal
Mahomei Sircar v. Cheharu Manial, 10 C. W. N.
53, and Budhai Sheikh v. Tarap Sheikh, 10 C. W. N.
32, distintruished. Moharuddi Maleta v. Jadtj
Nath Mandul (1906) . . 11 C. W. N. 54

DIGEST OF CASES.

{ 5912 )

36.

Separate trial on joint eom-

mitmeat— Criminal Procedure Code {Act V of
1898), ss. 233 to 239 — Joinder of offences and
acc^ised — Preliminary inquiry — Power of Sessions
■Court to try offenders separately where jointly com-
mitted for trial. The sections of the Code of Crimi-
nal Procedure which relate to joinder of charges
(including s. 239) refer to the trial of the accused.
The ruling in Subramania Iyer v. Emperor,
I. L. R. 25 Mad. 61, cannot be extended to a pre-
liminary inquiry held by the Magistrate commit-
ting a case to a Sessions Court, so as to render the
commitment itself illegal because there was mis-
joinder of offences or of offenders. In such a case,
the Sessions Judge, if he considers it necessary, can
frame charges against and try the accused sepa-
rately. In the mitter of Govikdu (1902)

I. L. R. 26 Mad. 592

JOINDER OF PARTIES.

See Bengal Tenancy Act.

10 C. W. N. 216

See Misjoinder.

See Multifariousness.

See Parties —

Parties to Suits — Joint Family ;

I. li. R. 28 Calc. 517
Adding Parties to Suits.
See Religious Endowments Act.

8 C.W.N. 404
See Specific Relief Act. s. 9.

I. L. R. 15 All. 384

Civil Procedure Code

{Ad XIV of 1SS2), s. 30— Gujarat TaluJcdar's
Act {Bombay Act VI of 1888), s. 12— Representative
order — Partition suit — ''Known co-sharers" — All
persons interested parties. It is a general rule that
all persons interested ought to be made parties to a
suit, howsoever numerous they may be, so that the
Court may be enabled to do complete justice by
deciding upon and settling the rights of all persons •
interested and that the orders of the Court may be
safely executed by those, who are compelled to
obey them and future litigations may be prevented.
This rule, no doubt, yields to the exigencies of
particular cases and there are well established
qualifications to it, such as the power of the Court
under s. 30 of the Civil Procedure Code (Act XIV
of 1882) to make a representative order. The
phrase " known co-sharers " in s. 12 of the Gujarat
Talukdar's Act (Bombay Act VI of 18S8) covers
all persons, who are known to have an interest in
the property and is not limited to those co-sharers,
whose names are recorded under the Act. A
person who ought to be, but is not, a party to a
proceeding is not ordinarily bound by any decree or
order passed therein. Chudasama Sursangji v.
Part APS ANG Khengarji (1904)

I. Ii. R. 28 Bom. 209

JOINT CONTRACTORS.

See Contract Act, s. 43 25 W. R. 419

I. L. R. 3 Calc. 353

I. Ii. R. 5 Mad. 37 ; 133

I. Ii. R. 24 Bom. 77

I. Ii. R. 22 All. 307

JOINT CREDITORS.

See Debtor and Creditor.

I. Ii. R. 20 Mad. 461

See Limitation Act, 1S77, Art. 179 —
^^ Joint Decree — Joint Decree-holder,
See Right of Suit — Joint Right.

I. L. R. 7 All. 313

JOINT DEBTORS.

See Contribution, suit for — Payment
of Joint Debt by one Debtor.

5913 )

DIGEST OF CASES.

( 5914 )

JOINT DEBTORS— concW.

See Limitation Act, 1877, Sch. II, Art.
12 (1871, Art. 14).

I. li. E. 2 Gale. 98

See Limitation Act,
Art. 179 — Joint
Judgment Debtors.

1877, gch. II'
Decree — Joint

suit against —

See Civil Procedure Code, 1882, s. 153
I. li. B. 26 Bom. 378
JOINT DECREE.

See Civil Procedure Code, 1882, s. 317.

I. L. R. 29 All. 557

See Contribution, suit for — Payment

OF Joint Debt by one Debtor.
See Execution of Decree — Joint

Decree, Execution of and Liability

UNDER.

See Limitation Act, 1877, Sch. II, Art.
99 (1871, s. 100).

I. Ii. R. 4 Calc. 529
3 C. L. R. 480

See Limitation Act, 1877, Sch. II, Art.
179(1859,8. 20)— Joint Decree.

JOINT DECREE-HOLDERS.

See Limitation Act, 1877, ss. 7 and 8,
and Sch. II, Art. 179.

I. L. E. 25 Mad. 431

See Limitation Act, 1877, >Vch. II, Art.
179 — Joint Decree — Joint Decree-
holders.
See Multifariousness.

I. L. R. 1 All. 444
JOINT ESTATE.

See Ejectment . I. L. R. 31 Calc. 786

JOINT FAMILY.

See Arms Act, 1878, s. 19.

I. L. R. 15 All. 129
See Civil Procedure Code, 1882, s. 13.
I. L. R. 28 All. 627
L L. R. 29 All. 1
See Co-parcener, release by.

I. L. R. 33 Bom. 267

See Enchancement eft" Rent — Notice op

Enhancement — Service of Notice.

I. L. R. 4 Calc. 592

1. L. B. 10 Calc. 433

See Execution of Decree — Mode op

Execution — Joint Property.

See Guardian — Appointment.

I. L. R. 8 Calc. 656

L. R. 9 I. A. 27

1. L. R. 19 Calc. 301

I. L. R. 19 Bom. 309

I. L. R. 17 All. 529

I. L. B. 20 AU. 400

JOINT FAMILY— con<<f.

See Hindu Law . I. L. R. 27 All. 16
L L, R. 29 Bom. 51

Sea Hindu Law —

Alienation — A lienation by
Father.

See Hindu Law — Inheritance — Joint
Property and Survivorship.

See Hindu Law — Joint Family —
Sale op Joint Family Property
IN Execution op Decree, etc.

See Hindu Law — Partition.

See Landlord and Tenant.

L L. R. 32 Calc. 56T

See Limitation Act, XV of 1877, s. 8.
I. L. R. 31 AU. 156

See Mahomedan Law — Joint Family.

See Malabar Law — Joint Family.

See Parties — Parties to Suits — Joint
Family.

See Parties — Parties to Suits — Part-
nership, SUITS CONCERNING.

I. L. R. 18 Calc. 86
1. L. R. 18 Mad. 33

See Sale in Execution op Decree —

Joint property.
See Stolen Property.

I. L. R. 29 All. 598

defined shares-

agreement to hold property in

See Hindu Law — Joint Family.

I. L. R. 31 All. 412

— business.

See Hindu Law — Joint Family — Debts
and Joint Family Business.

exclusion from —

See Limitation Act, Sch. II, 1877, Art.
127 (1859, s. 1, CL. 13).

— property.

See Compromise — Construction, En-
forcing, Effect of, and Setting
ASIDE Compromise.

I. L. R. 1 AIL 651
See Execution op Decree — Mode of

Execution — Joint Property.
See Hindu Law —

Inheritance — Joint Property

AND Survivorship ;
Partition.

See Partition — Miscellaneous Cases.
6 C.W.N. 698

See S.yle in Execution of Decree —
Joint Property.

( 5915 )

DIGEST OF CASES.

( 5916 )

JOINT FAMILY— roncW.

, purchase on behalf of —

-See Civil Procedure Code, 1882, s. 317
I. L. R. 31 All. 282

representative of, for voting

purposes.

See Calcutta Municipal Consolidation
Act, s. 31. ,^^

I. L. R. 19 Calc. 192, 195 note, 198

suit for share of— -

iSee Decree— Form of Decree— Posses-
sion . . I. L. R. 1 Bom. 95
I. L. R. 5 Bom. 493, 496, 499
3 Mad. 177

6'ee Limitation Act, 1877, Sjh. 11, art"

127 (1859, s. 1, cl. 13).
See Parties— Parties to Suits— Joint

Family.

JOINT LANDLORDS.

See Bengal Tenancy Act (VIII of 1885),
s. 56 . . I. L. R. 24 Calc. 169
See Bengal Tenancy Act, 1885—

ss. 65 and 188 ;

I. L. R 29 Calc. 219

ss. 90, 52 AND 188 ; 7 C. W. N. 93
s. 188.
^ee Bengal Tenancy Act (VIII of
1885), s. 91. I. L. R. 35 Calc. 417

See Landlord and Tenant.

LL.R. 31 Calc. 707, 786

JOINT MORTGAGORS.

>See Limitation Act, 1877, Sch. 11, Art.

148 . . . I. L. R. 8 All. 295

I. L. R. 11 All. 423

I. L. R. 14 All. 1

JOINT OWNERS

See Bengal Tenancy Act (VIII of
1885), s. 91. I. L. R. 35 Calc. 417

JOINT POSSESSION.

See Co-SHARERS. I. L. R. 33 Calc. 1201

Lessees from co-sharers

— Joint owners — Separate leases by different co-
sharers of lands in their exclusive possession — Right
of one lessee to have joint possession with another —
Eight to partition. The owners of an epnali mehal
severally leased out lands in the exclusive possession
of each to different lessees. One of the lessees
having obtained his lease in the bond fide belief that
the land covered by it belonged in its entirety to
his lessor reclaimed and improved it, and was then
suedby the other for joint possession. Held, that
it would be inequitable to give the plaintiff the
relief he tasked for and his proper remedy was to

JOINT POSSESSION— cowcW.

bring a suit for jjartition. Syed Ali v. Najab Ali

(1906) new. N. 143

JOINT PROPERTY.

See Certificate of Administration —
Right to sue or execute Decree
WITHOUT Certificate.

I. L. R. 19 Bom. 338

I. L. R. 17 Ali. 578

I. L. R. 23 Ca.e. 912

I. L E. 20 Mad. 232

I. L. R. 22 Mad. 380

1. C. W. N. 32

See Co-sharers. I. L. R. 33 Calc. 1201

5ee Court Fees Act (VII of 1870). s.

19 D. . . 1. L. R. 29 Bom. 161

Se Criminal Procedure Code, s. 145.

11 C. W. N. 512

See Execution of Decree — Mode os
Execution — Joint Property'.

See Hindu Law — Inheritance — Joint
Property and Survivorship.

<See Hindu Law, Limitation, Partition.

See Injunction — Special Cases — Pos-
session OF Joint Property.

See Interest — Miscellaneous Cases —
Arrears of Rent.

I. L. R. 28 Calc. 227
See Joint Family — Property*.

See Possession, Order of Criminal
Court as to — Cases in which Magis-
trate CAN decide as to POSSESSION.

7 C. W. N. 462

See Sale in Execution of Decree —
Joint Property*.

Illegal ouster of joint

owner — Suit for recovery of joint possession —
Form of decree. Held, that, if a plaintiff has been
in joint possession of property and has been
illegally ousted from joint possession of any
portion of that property by a co-owner, he is
entitled to be restored to such joint possession.
Rahman Chaudhuri v. Salamat Chaudhuri, All.
Weekly Notes (1901) 4S, distinguished. Bhairon
Rai v. Saran Rai (1904). I. L. R. 28 Ail. 588

Dispossession — Dispossession

of some of the co-owners by others — Suit for recovery
of joint possession — Form of decree. Where certain
of the co-owners of immoveable property had
been prevented by some of the other co-owners
from exercising their legal rights in respect of the
joint property : Held, that the dispossessed co-
owners were entitled to a decree tliat they should
be restored to joint possession of the joint
property, and not merely to a decree declaring
their right to joint possession. Bhairon Rai v
Saran Rai, All Weekly Notes i 1904) 106, followed
Watson & Co. v. Ramchund Dutt, I. L. R. 18 Calc .

( 5917 )

DIGEST OF CASES.

( 6918 )

JOINT PROPERTY— conc?(/.

10, and Rahman Chaudhuri v. Salamat Chavdhuri,
All Weekly Notes (1901) 48, referred to. Ram
CH.4RAN Rai /'. Kauleshak Rai (1905).

I. L. R. 27 All. 15
Exclusive dealing with

joint property by one of the co-owners

RdwdV of the oth-r co-owners— Form of decree.
Upon the death of the tenant of land, which was
the property of four persons jointly, one of the co-
sharers took possession of the tenant's holding
and commenced to cultivate it himself. The
remaining co-sharers brought a suit to recover
possession — apparently actual physical ]Jossession
— of three-quarters of the tenant's holding thus
occupied by the defendants. Held, that the
decree to which the plaintiffs were entitled was a
decree declaring that they and the defendant were
joint owners of the land in dispute, and that the
plaintiffs were, as such joint owners, entitled to an
account of the profits of the land. Bhola Nalh v.
Buskin, All. Weekly Notes [1894) 127, Ram Jatan
Shukul V. Jaisar Shukul, AU. Weekly Notes (1894)
166, and Rahman Chaudhri v. Salamat Chaudhri,
All. Weekly Notes (1901) 48, referred to- Bhairon
Raiv.SaranRai,I.L.R. 26 All 588, distinguish-
ed. Jagar Nath Singh v. Jai Nath Singh (1905)
I. L. R. 27 All. 88

4_ Exclusive deeding

with joint property by one of the co-owners —
Remedy of the other co-owners — Forin of decree.
On the death of a tenant of land, which belonged
to several joint owners, one of the co-owners
obtained exclusive possession of the tenant's
holding and had his name recorded in the
mutation department as owner. The other co-
owners sued for joint possession to the extent
of their interest in the land, and they asked
also for interest pendente lite and future interest
and costs of suit and for no further relief. Held,
that the decree to wMch the plaintiffs were entitled
was a decree declaring that the3' and the defendant
were joint owners of the land, and that the plaintiffs
were, as such joint owners, entitled to an account of
the profits of the land. But the plaintiffs were not
entitled to an injunction restraining the defendant
from dealing with the land without the plaintiffs'
consent. Bhola Nath v. Buskin, All Weekly. Notes
{1894) 127, Ram Jatan Shukul v. Jaisar Shukul,
All. Weekly Notes ( 1894) 166, Rahman Chaudhuri v.
Salamat Chaudhuri, All. Weekly Notes (1801) 48,
Jagar Nath Singh v. Jeii Nath Singh, I. L. R.
27 All. 88, Ram Sarup v. Gulzar Banu, All.
Weekly Notes (1 90 J) 160, and Watson & Co. v.
Ramchand Dutt, I. L. R. 18 Calc. 10, referred
to. Nanhi Devi v. Dauleit Singh, AU. Weekly
Notes {1905) 119, in part overruled. Phani
Singh v- Nawab Singh (1905)

I. Ii. R. 28 All. 161
JOINT TENANCY.

See Hindu Law — Inheritance — Joint
Property and Survivorship.

I. L. R. 3 Bom. 151
I. Ii. R. 26 Bom. 445

JOINT TENANCY— concW.

See Hindu Law — Inheritance — Special
Heirs — Females — Widow.

1 Bom. 66

3 Mad. 268, 424

1. L. R. 1 Mad. 290

L. R. 4 I. A. 212

I. L. R 2 Mad. 194

L Ii. R. 7 All. 114

See Hindu Law — Will — Construction

OF Wills — Vested and Contingent

Interests. I. L. R. 11 Bom. 69, 573

I. Ii. R. 11 Mad. 258

I. Ii. R. 23 Calc. 670

L. R. 23 I. A. 37

See Landlord and Tenant^Rent.

11 C. W. N. 1026
See Public Demands Recovery Act.

6 C. W. N. 302

See Survivorship.

2 Bom. 55 : 2nd Ed. 53

-See Will — Construction.

I. Ii. R. 21 Calc. 488
I. Ii. R. 23 Bom. 80

Landlord and tenant —

Kdbuliyat by one of several joint tenants — Liability
of such tenant for his sliare only. Where one of
several joint tenants executed a kabuUyat in
favour of the landlord for the entire tenure,
and it was proved that tlie other tenants did
not acquiesce in this, and where in a separate
suit by the other tenants it was found that
they were not bound by the kabuliyat : Held, that
the tenant executing the kabuliyat for the entire
tenure was not bound in excess of his share,
and was not liable for the whole rent. Bur-
hunuddi Howleidar v. Mohun Chunder Guha,
8 C. L. R. 511, rehed ujjon. Ram Taran Chatter-

JEE V. ASMATULLAH SUEIKH (1900)

6 C. W. N. Ill

JOINT TRIAL.

See Confession — Confession of Prison-
ers TRIED JOINTLY.

See Crijunal Procedure Code, ss. 235

to 239.
See Criminal Procedure Code.

I. Ii. R. 30 Bom. 49

Sec Joinder or Ch.\rges.

I. Ii. R. 29 Clc . 385

See Res judicata.

I. Ii. R. 33 Calc. 1101

1. Same transaction — Previous

\ conviction — Counterfeit coin — Possession, delivery
of— Criminal Procedure Code (Act V of 1898),
ss. 23), 239, 403— Penal Code {Act XLV of
1860), ss. 240, 243. C gave the appellant 50
counterfeit rupees to pass for him. These
rupees were stolen and the appellant on the
discovery of the theft gave certain information to
the police, which led to the discovery of 6-t other

( 5919 )

DIGEST OF CASES.

( 5920 )

JOINT TRIAL-co»/d.

counterfeit coins in Cs house. C was separately
tried and convicted under s. 243 of the Penal Code
of being in possession of the latter coins. C and
the appellant were also tried jointly and were
convicted ; C under s. 240 of the Penal Code with
reference to the 50 counterfeit rupees he had
made over to the appellant and the appellant
under s. 243 of the Code of being in possession
of the said rupees. On appeal it was contended
that C could not be tried for an offence under s. 240,
after he had been previously convicted of the posses-
sion of base coin under s. 243 of the Penal Code and
further that the joint trial was bad in law. Held,
that the joint trial was valid, that the trial of 0
under s. 240 of the Penal Code was legal, it being
for an offence distinct to that for which he had been
previousl}' convicted. Emperor v. Prosanna
Kumar Das (1904) . I. L. R. 31 Gale. 1007

2. Different transactions — New

trial — Criminal Procedure Code {Act V. of 1898),
ss. 235, 239— Penal Code {Act XLV of 1860),
ss. ifi§, 414, 420, 471. On the 23rd August
1903, the appellant obtained a payment from the
firm of S. R. R. D. of R5,000 in currency notes of
R500 each on a hundi by falsely representing him-
self to be a darwan of the firm of H. R. R. C.
On the 22nd January 1904 the appellant, accom-
panied by S. r., went to a shop and purchased some
silk, and in payment S. T. gave a note of R500,
which was one of the notes received by the appel-
lant on the 23rd of August. The appellant and S.
T. weie tried jointly and were convicted, — the appel-
lant under ss. 240, 471 and 403 of the Penal Code,
with regard to the occurrence of the 23rd August,
and S. T. under ss. ^uf and 414 of the Penal Code
with regard to the occurrence of the 22nd Janu-
ary. Held, that the joint trial was bad in law, and
that a new trial should be held by a different
Magistrate. Hika Lal Thakur v. Emperor (1904)
I. L. R. 31 Calc. 1053

— Criminal Proce-

dure Code {Act V of 1898), ss. 239 and o37—
Separate retainer of stolen properties — Offences
committed in the same transaction — Charge. Per
Harington and Stephen, J J. (Brett, J.,
dissenting). Different persons charged with
separately retaining different articles of stolen
properties, which are proceeds of the same theft,
cannot be tried together, as the offences charged
cannot be said to have been committed in the same
transaction. Such joint trial is illegal and is not
saved by the operation of s. 537 of the Criminal
Procedure Code. Suhrahmania Ayyar v. King-
Emperor, I. L. R. 2') Mad. 61, 5 C. W. N. 866,
followed. In re A. David, 5 C. L. R. 574, and
Bishnu Banwar v. Empress, 1 C. W. N. 35, referred
to. Abdul Majid v. Emperor (]90()).

I. L. R. 33 Calc. 1256

4. Offences of the

same kind by the same persons on different dates
— Separate transactions — Misjoinder of persons — ■
Criminal Procedure Code {Act V of 1898), ss.
233, 234 and 239. The petitioners and others

JOINT TB.lAlj—contd.

entered upon a plot of land belonging to the
complainant on the 22nd February and looted
his linseed crop, and on the next day the same
persons entered upon another plot and looted
his tobacco. They were tried jointly, under the
summary procedure, and convicted under ss. 143>
379 of the Penal Code in respect of each occurrence.
Held, that the events of the two different dates were
not parts of the same transaction, and that the trial
was bad for misjoinder under s. 239 of the Criminal
Procedure Code. S. 234 by its terms refers to the
case of a single accused, and is not applicable, where
several persons are tried jointly under s. 239.
BuDHAi Sheik v. Emperor (1905).

I. L. R. 33 Calc. 292

5. Joint trial of

several distinct complaints — Ulegality — Omission to-
take objection — Criminal Procedure Code {Act V of
1898), ss. 233 and 234— Proprietor of a market,
rights of — Itinerant stall-keepers, rights of — Ijaradar
of a market, his right to prevent the sale of foreign
goods. — Binding ijaradar down for exceeding his
rights. Where three persons laid three separate
complaints against the accused alleging that
they (the accused) committed rioting and indivi- •
dually caused hurt to each of the complainants
and threw away and spoilt their foreign salts
and other articles : Held, that though the origin
and the preparations for the commission of the
offences might be the same, the offences were
distinct from each other and the joint trial of the
accused for the offences was illegal and the illegality
could not be cured by the fact that no objection to
the joint trial was taken either in the Court of first
instance or the Appellate Court. The illegaUty has
affected the jurisdiction of the Court. That s. 234,.
Criminal Procedure Code, does not authorise such a
joint trial, as that section refers to different acts done-
by the same individual or sets of individuals against
the same complainant or complainants so connected
with each other that they may in law be taken to be
one person. In this country there is no special law
for regulating the establishment and the carr3dng
on of a market. The owner of land may establish a
market wherever on his own land and whenever he
desires to do, provided he does not commit an offence
involving disturbance of public peace by establishing
the market close to another existing market. The
proprietor of a market may regulate the sales and
the conduct of stall-keepers provided liis conduct
does not disturb public tranquillity or he does not
commit an offence punishable by law. The pro-
prietor has the right to prevent itinerant stall-
keepers but not permanent stall-keepers from selling
any article he may choose to prevent the sale of.
Raj Kumar Chuckerbutty v. The Emperor, 11 C. W. N^
25, followed. Itinerant stall-keepers who are mere
licensees, are entirely under the control of the
owner of the market. These rights of the proprietor
can be exercised by the ijaradar of the market
during the term of his ijarah. Where the ijaradar
of a market with a view to prevent the sale of
foreign articles used force and caused hurt to certaia
itineiant stall- keepers : Held, that the ijaradar

( 5921 )

DIGEST OF CASES.

( 5922 )

JOINT TRIAL— concW.

exceeded his right under the law and was punishable.
But he could not be bound down to keep the peace
as an order under s. 106, Criminal Procedure Code,
would practically prevent him from exercising his
legal rights. Nanda Kumar Sirkar v. The
Emperor (1907) . . 11 C. W. N. 1128

JOINT WRONG-DOERS.

See Contribution, Suit for — Joint

Wrong- DOERS.
See Res Judicata — Parties — Same
Parties or their Representatives.

I. L. R. 14 Bom. 408
JOTE.

-See Bengal Tenancy Act, s. 5.

8 C. W. N. 117

See Mortgage

8 C. W. N. 365

JUDDINS.

1. Conversion among

Indian Zoroastrians — Convert not entitled to certain
religious and charitable institutions of Parsis.
Held by Davar, J. : — Although the conversions
of Juddins is permissible amongst Zoroastrians,
such conversions are entirely unknown to the
Zoroastrian community in India ; and far from
being customary or usual for it to convert a
Juddin, the Zoroastrian community of India has
never attempted, encouraged or permitted the con-
version of Juddins to Zoroastrianism. Even if
an entire alien — a Juddin — is duly admitted
into the Zoroastrian religion after satisfying all
conditions and undergoing all necessary cere-
monies, he or she would not, as a matter of right, be
entitled to the use and benefits of the funds and
institutions under the defendants' management and
control ; these were founded and endowed only for
the members of the Parsi community ; and the Parsi
community consists of Parsis who are descended
from the original Persian emigrants, and who are
born of both Zoroastrian parents, and who profess
the Zoroastrian religion, the Iranies from Persia
professing the Zoroastrian rehgion, who came to
India either temporarily or permanently, and the
children of Parsi fathers by alien mothers who have
been duly and properly admitted into the religion.
Held by Beaman, J. : — The Zoroastrian rehgion
does admit and enjoin conversion. The Indian
Zoroastrians while theoretically adhering to their
ancient religion and consistently avowing its prin-
cipal tenets, including of course, the merit of con-
version as a theological dogma, erected about them-
selves real caste barriers, and gradually fell under the
influence of the caste idea, till, in modern popular
language, it has found current expression in the
term Parsi, which now seems to have as distinctly
a caste meaning and as essentially a caste connota-
tion as that used to denominate any other great
Indian caste. In the Zoroastrian community,
while the religion and its ritual, purity are still the
mainspring of the communal life, they are so inti-
mately bound up with the exclusiveness and the
purity of the tribe or caste, that they have become

VOL. ni.

JUDDIN S— cone W.

practically identical. It is therefore fairly accurate
to describe the Indian Zoroastrians as Parsis —
thereby implying a caste, or communal, or tribal
organization. Conversion — in the abstract at
any rate, and as a theoretical religious tenet —
was perfectly familiar to the Parsi community,
not only in the remote past but in our own time.
It was not the intention of the founders of the
trusts in question to extend their benefits to any
one who was not in the most rigid caste sense Parsi,
that is, born into the community of the Indian
Zoroastrians and born of an Indian Zoroastrian
father. Dinsha Manekji Petit v. Jamsetji
Jijibhai (1908) . . I. L. R. 33 Bom. 509

JUDGE.

Col.

1. Appointment of Judge . . . 5923

2. Duty of Judge .... 5923

3. Power op Judge .... 5924

4. Qualifications and Disqualifications 5928

5. Death of Judge before Judgment . 5931

See District Judge.
See Judge of High Court.
See Judge op the Supreme Court.
See Judges, difference of opinion
between.

See Jury . I. L. R. 28 Bom. 412
iSee Land Acquisition Act, 1870, ss. 15

AND 39.
See References under Special Judge.
See Sanction to prosecute.

I. L. R. 33 Calc. 1393

See Sessions Judge.

See Subordinate Judge.

See Special Second Appeal — Other

Errors of Law or Procedure —

Discretion, Exercise of.

iSee Witness — Civil Cases — Persons
competent or not to bk Witnesses.

I. li. R. 19 Mad. 263

See Witness — Criminal Cases— Person
competent or not to be Witness.

7 W. R. 190

20 W. R. Cr. 76

I. L. R. 3 All. 573

4 B. L. R. A. Cr. 1

discretion of-

See Appellate Court — Exercise of
Powers in various Cases — General
C.\SES . . I. L. R. 6 Bom. 304

See Certificate of Administration—
Cancelment or Recall of Certifi-
cate . 8 B. Ii. R. Ap. 14 note

( 5923 )

DIGEST OF CASES.

( 5924 )

JUDGE— conW.

discretion of— concld.

See ("ERTIFICATE OF ADMINISTRATION—

Nature and Form of ('ertificate.

4 B. L. B. A. C. 149

See Confession of Judgment.

3 B. li. B. A. C.

396

See Hindu Law— Custom— MAHrniEDANs.
I. L. R. 3 Calc. 694

See Local Investigation

by-

12 W. B. 76
1 W. B. 141

See Special or Second Appeal— Other
Errors of Law or Procedure-
Discretion, Exercise of, in various
Cases.

See Summons . 15 B. L. B. Ap. 12

— disqualification of—
See Magistrate, jurisdiction of— Gen-
eral Jurisdiction.

I. L. B. 15 Mad. 83
I. L. B. 18 Bom. 442

expression of opinion on facts

See Jury,

trial by.
I. L.

B. 34 Calc. 698
is, in India, judge of both law

and facts—

See Malicious Prosecutkjn.
I. L. E. J

Calc. 591

— on Original Side —
See Criminal Procedure Code, s. 195.
8 C. W. N". 797

privilege of—

See Defamation I. L. B. 17 Mad. 87

prosecution of—

See Sanction for Prosecution— Where

Sanction is necessary or otherwi.se.

I. L. B. 26 Calc. 869

1. APPOINTMENT OF JUDGE.

1. Consent of Governor Gene-
ral—.4c< XXIX of 18 1'i— Ratification. The
consent of the Governor General in Coundl, as,
required by s. 5 of Act XXIX of 1845, to the
appointment of a Joint Judge had to be sjiven before
the appointment was made. The doctrine of subse-
<iuent ratification does not apply in a criminal case.
Reo. v. Rama bin Gopal . . 1 Bom. 107

2. DUTY OF JUDGE.

1. Trial of question of fact—

Ground, for decision — Private knowledge or in-
for/nation — Public rutnour. In trying a question
•of fact, no Judge is justified in acting principally on

JUDGE— conW.

2. DUTY OF JUDGE— conc?d.

his own knowledge and belief, or public rumour, and
without sufficient legal evidence. Meethun Bibee
)'. Busheer Khan

7 W. B. P. C. 27 : 11 Moo. I. A. 213

2. Private knowledge

or information. A Judge ought not to import his
own private knowledge or opinion into a case, but
ought simply to decide the issues before him and on
the evidence before him. Meheroonissa v.
Bhashaye Merdha . 2 "W. B., Act X, 29

Reg. v. Vyankatbav Shrinivas

7 Bom. Cr. 50

Lalla Mewa Lall v. Sree Mahato

25 W. E. 152

3. Knowledge of

facts — Judge as a witness. A Judge cannot, with-
out giving evidence as a ^vitness, import into a case
his own knowledge of particular facts. Hurpur-
.shad v. Sheo Dyal. Ram Sahoy v. Sheo Dyal.
Balmokund v. Sheo Dyal. Ram Sahoy v. Bal-
MOKUND . Ii. B. 3 I. A. 259 : 26 W. E. 55

4. Judicial notice — Judgment of

proper Court. It is Avithin the province of a
District Judge to know, and it is his business to
declare if he knows, whether a decree, produced
before him, of a Court \^athin his district was ob-
tained in a proper Court, and is such as he can take
judicial notice of. Bukshoollah Chowdry v.
HuR Chunder Chund . . 16 W. B. 248

5. Opinion of assessor— Per-

sonal knoudedge. A Sessions Judge should not
import into his judgment the opinion of an
assessor derived from personal knowledge and un-
supported by evidence on the record. Queen v.
Ram Churn "Kurmokar . 24 W. B. Cr. 28

6. Propriety of consultation

■with, another Judge. Judges who have heard
the arguments and who are responsible for the
decision can hardly with propriety rest it on the
authority of one who has not heard the arguments
and is not responsible for the decision, though he
also may be a Judge of the High Court. Harriss
V. Brown (1901) . I. L. E 28 Calc. 621

s.c. 5 C. W. N. 729
L. B. 28 I. A. 159

3. POWER OF JUDGE.

1. Power of, to delegate to

assessors examination of witnesses. In a

case of the assessors viewing the scene of the offence,
the Judge cannot delegate to them his power of
examining witnesses on the spot. Queen v.
Chutterdharee Singh . . 5 W. E, Cr. 59

2. • Pronouncing judgment out

of Court — Irregulariti) in criminal ca.ie. Where
a Magistrate conducted and closed the trial in the
established Court-house, but could not by reason of
illness pronounce judgment which he did at his

( 5925 )

DIGEST OF CASES.

( 5926 )

JUDGE— conW.

3. POWER OF JUDGE— conid.

private house, Held, that the Judge was not compe-
tent to quash the sentence on this ground and to
order a new trial by the Magistrate, his power being
limited to refer the case for consideration of the
High Court under s. 434, Criminal Procedure Code,
1861. Government v. Holasee Singh

1 Agra Cr. 17

3. Holding cutcherry in Mun-

aif S Court — Irregularity in trial of civil case —
Consent of parties. Where a District Judge took
advantage of his presence in the locality, and heard
and decided a suit in the Munsif 's Court, which had
originally l;een instituted in that Coui-t, but subse-
quently transferred to the Judge's Court for trial,
and it appeared that the course taken was with the
consent, implied, if not express, of both parties, who
Avere represented at the hearing, Held, that the
District Judge was justified in taking the course he
had done. Madhary v. Goburdhun Hulwai

I. Ii. E. 7 Calc. 694 : 9 C. L. R. 303

4. Deciding ease on evidence

taken by his predecessor — Irregularity in
criminal case. In the case of several prisoners who
were tried by a Sessions Court consisting of a Judge
and assessors, the latter convicted them, which find-
ing was recorded by the Judge. The Judge, however,
postponed giving judgment and left the district,
without recording his finding or his judgment, and
the Judge's successor, after considering the evidence
which had been taken before his predecessor, con-
victed and passed sentence on the prisoners. Held,
that the conviction was not valid and the trial had
not been completed. The High Court accordingly
set aside the conviction and ordered the re-trial of
the prisoners upon the charges upon which they were
committed for trial. Qtjeen v. Gopi Noshyo

21 W. R. Cr. 47
See Tarada Baladu v. Queen

I. L. R. 3 Mad. 112
Queen v. Rughoon ath Doss

23 W. E. Cr. 59
Power of Judge to deal

with evidence taken by his predecessor-

Civil Procedure Code, s. 191 — Hearing of .suit. A
Subordinate Judge, having taken all the evidence in
a suit before him, adjourned the case to a future date,
for disposal. Upon the date fixed a further adjourn-
ment was made. The Subordinate Judge, at this
stage of the proceedings, was removed, and a new-
Subordinate Judge was appointed. Held, that the
trial, so far as it had gone before the first Subor-
dinate Judge, was abortive, and, as a trial, became a
nullity. Held, also, that the duty of the second
Subordinate Judge, when the case was called on
before him, was to fix a date for the entire hearing
and trial of the case before himself ; that he might,
at the request of the pleaders, have fixed the same
day upon which the case was called on and proceeded
to try it at once ; and that the trial should then have
proceeded in the ordinary way, except that the

JUDGE— con^ri.

POWER OF JUDGE-^onW.

parties would be allowed, under s. 191 of the Civil
Procedure Code, to prove their allegations in a
different manner. Jujrum Das v. Narain Lai,
I. L. R. 7 All. S-57, referred to. Afzal-vn-nissa
Begam v. Al Ali . . I. L. R. 8 All. 35

6. Civil Procedure

Code, 1882, s. 191— Hearing of suitr— Trial-
Death or removal of Judge during suit — Procedure
to he followed by new Judge. The trial of a suit
before a Subordinate Judge was completed except
for argument and judgment, and a date was fixed for
hearing argument. At this point a new Subordinate
Judge was appointed, and he passed an order direct-
ing a further adjournment and fixing a particular
date for disposal of the case. After some further ad-
journments, the Subordinate Judge delivered judg-
ment, having heard argument on both sides upon the
evidence taken by his predecessor. The District
Judge having on appeal upheld the Subordinate
Judge's decision, a second appeal was preferred to
the High Court, and an objection was raised on the
appellant's behalf that the proceedings taken before
the Subordinate Judge were void, and he could not
be said to have tried the case, inasmuch as no evi-
dence was taken before him, and his judgment was
based solely on evidence recorded by his predecessor.
No objection of this kind was taken in either of the
Courts below. Held, by the Full Bench, that, with
reference to the ground of appeal and under the
circumstances of the case, the officer who passed the
decree in the Court of first instance had jurisdiction
to deal with and determine the suit in the mode
in which he did. Jagram Das v. Narain Lai,
I. L. R. 7 All. S-57, and Afzal-un-nissa Begam v.
Al Ali, I. L. R. S All. 3', discussed. Per Straight ,
Offg. C. J., that as no objection was raised before the
Subordinate Judge to his taking up and'dealing with
the case in the mode in which he did, but the evi-
dence was discussed and criticised on both sides,
there had been a waiver on the part of the appellant
in reference to the action of the Subordinate Judge
of which he now sought to complain. Per Old-
I FIELD, J., that where a Judge takes up a trial begun
by another, although the law permits him to deal
with the CAadence taken by his predecessor as if he
himself had taken it down, he must deal with it
judicially, and try the cause as though it had come
before him in the first instance, and there must be a
hearing of the entire case before himself ; and in
every case it has to be seen whether, as a matter of
fact, there has been a real trial and hearing of the
entire case by the Judge ; and if the evidence pre-
Adously taken was not judicially dealt with, counsel
heard upon it, and the entire case fully heard and
tried, there has been no trial in the legal sense of the
word, and the proceedings must be set aside. Jagram
Das V. Narain Lai, I. L. R. 7 AU. 857, and Aizal-un-
nissa Begam v. Al Ali, I. L. R. S All. 35, followed.
Per Mahmood, J., that, although, it is true that
" a trial must be one, and must be held before
one Court only," the identity of the Court is not
altered by a new Judge being appointed to preside in

9c2

( 6927 )

DIGEST OP CASES.

( 5928 )

JUDGE— cow/ff.

3. POWER OF JUDGE— contd.

such Court ; that when a trial goes on for more than
one day, each day constitutes a separate hearing, and
that such hearing cannot be treated as a trial heard
on the original date ; that the Civil Procedure Code
does authorize a Judge to take up a case which
has been partly heard before his predecessor, and
to continue it from the point at which his predeces-
sor left off ; that where the Judge who has partly
heard a case dies or is removed, the trial, so far as it
has gone before him, is neither abortive nor becomes
a nullity ; that the new Judge is not required to fix a
da}- for the entire hearing of the suit before himself,
nor is there an3'thing to prevent him from taking up
a trial which 1 as been partly heard by his prede-
cessor and to proceed with it as if it had been com-
menced before himself; that the Code does not recog-
nize such procedure as amounting to separate trials ;
that the Judge who succeeds another after a trial
which has jjartly proceeded before his predecessor is
not bound to fix a new day for commencing the trial
(If novo nor should the trial proceed before the
new Judge as if the day were the first on which the
case had ever come on for hearing ; that the evi-
dence recorded by the preceding Judge, by the mere
fact of being upon the record, is ipso facto evidence
in the cause, and could, under s. 191 of the Code, be
treated by the succeeding Judge " as if he himself
had taken it down or caused it to be made ;" that
when the case comes on for hearing before the new
Judge, there is no necessity for putting in the deposi-
tions of witnesses which, though taken by his pre-
decessor, are already upon the record ; that such
depositions must be dealt with as materials of
evidence before the new Judge ; that a judgment
and decree upon such evidence are neither illegal
nor absolute nuUities, there being no want of juris-
diction ; that when such judgment and decree are
passed, the Court of first apjjeal is prohibited by s.
564 of the Code to order a trial de novo, but is bound
b\- s. 565 of the Code to decide the appeal upon the
evidence on the record ; that where further issues are
directed to be tried, or additional evidence is to be
taken, the Court of appeal is bound to act according
to the provisions of ss. 566, 568, and 569 of the
Code, but cannot order a new trial ; that even when
there has been an irregularity on the part of the
first Court in receiving or rejecting evidence, the
provisions of s. 578 of the Civil Procedure Code and
s. 167 of the Evidence Act prohibit the revertal of a
decree and the remand of a case for new trial, unless
the irregularity affects the merits of the case or the
jurisdiction of the Court. Jcigram Das v. Narain
Lai, I. L. R. 7 All. 857, and Afzal-un-nissa Begam
V. Al All, I. L. B. S All. 35, dissented from.
Jadtj Rai v. Kanizak Husain

I. Ii. E. 8 All. 576

7. Power of Judge to try case

irregularly by consent of parties— £»f/er-
minatloti of case by Judge %vho has not taken
evidence in it. The parties to a suit which is being
tried in a Court of first instance have a right to
insi.-t upon having all the advantages which attach

JUDGE— conW.

3. POWER OF JUDGE— com;?rf.

to a public hearing of the whole case and the-
examination of all the witnesses in open Court
before the Judge who is judicially to determine
the matter in dispute between them, although
they may, either expressly or impliedly, consent
to the suit being determined by a Judge who has
not been present throughout the trial, and to
his taking into consideration evidence which has.
not been given before him. Soorendro Pershad

DOBEY V. NUNDTJN MiSSER . SJl W. E. 196

8. Local Inspection— LocaZ in-
spection without 7iotice to parties. A Judge with
a view to a better understanding of the evidence
in a case and to clear up some doubtful points,
made a local inspection without giving any
notice to the parties. The result of the inves-
tigation he did not place upon the record, but
he did so in his judgment. Held, that a Judge
is a:t Hberty himself to inspect the property in
dispute and inform himself by the observation of
his senses of matters which may help in understand-
ing the evidence and in deciding the case, especially
such matters which do not require scientific know-
ledge. Joy Coomar v. Bundhoo Lai, I. L. R.
9 Calc. 263, and Dwarlcanath Sardar v. Prosunno
Kumar Hajra, 1 C. W. N. 682, referred to. Held,.
also, that there is no law, which requires a Judge to.
give notice to the parties or to give them an oppor-
tunity of being heard either during or after the
inspection. It is generally desirable that a Judge
should j)Iace upon record the result of his investi-
gation. MoEAN V. Bhagbat Lal Saha (1905).

I. L. R. 33 Calc. 133

4. QUALIFICATIONS AND
TIONS.

DISQUALIFICA-

Disqualifications — Interest

case. Judges should not try cases in which they
have any personal interest. Calcutta Steam Tug
Co. V. HossEiN Ibrahim bin Johur

Bourke O. C. 27a
Queen v. Boidonath Singh . 3 W. E. Cr. 29
2. Form of memo-
randum of appeal — Alleged bias of Judge. Per
SuBRAMANiA Ayyar, J.— " It is open to an appel-
lant to set up any circumstance showing that a
Judge whose decision is appealed against was dis-
qualified from trying and deciding the case . . ,
When a Judge is shown . . . to stand in such a
position that he might be reasonably suspected of
being biased, he must be held to have been dis-
qualified . . . . In cases where any bias can
be ])resumed, the party is entitled to show the
grounds which raise the presumption . . . But
where there is no such presumption, the party
must not be allowed to question the impartiality
of the Judge." Zamindar of Tuni v. Bennayya

I. L. E. 22 Mad. 155

3. Interest m case

— Municipal cases — Magistrate also Vice-Chair-

( 5929 )

DIGEST OF CASES.

( 5930 )

JXTDQU—conid

4. QUALIFICATIONS AND DISQUALIFICA-
TIONS—con<(i.

man of Municipality. Where a Magistrate was also
Vice-Chairman of a Municipal Committee, it was
held he could impose fines under Bengal Act III of
1864. Anonymous . . . 3 W. B. Cr. 33

4. Interest in case

— Judge as a tcitnesfi. — The jailor of a district jail
being accused by one of the jail clerks of falsifj^ing
his accounts and defrauding the Government, the
matter was enquired into by the District Magistrate
and the jailor was, by the Magistrate's order, placed
on trial before a Bench of Magistrates, consisting of
the District Magistrate himself. L, the Officiating
Superintendent of the Jail, and three other Honorary
^Magistrates. The prisoner and his pleaders were
alleged to have stated before the commencement of
the trial, on being questioned, that they had no
objection to the composition of the Bench, but after
the charges had been framed, the prisoner's counsel
objected to the Bench as formed. The District
Magistrate directed the Government pleader to
prosecute, and both the District Magistrate and L
gave evidence for the prosecution. After the case
for the prosecution was closed, two formal charges
Mere drawn up, namely, that the prisoner had debit-
ed Government with the price of more oil-seed than
he actually purchased, and that he had received
payment for certain oil at a higher rate than he
credited to Government. The moneys, the receipt
of which were the subject of the first charge, were
obtained by the prisoner on the strength of
certain vouchers which he had induced L to sign as
correct, and L had sanctioned the sale at the rates
credited to Government. Upon the prisoner's
giving the names of the witnesses he intended to
call in his defence, L was deputed by his brother
^Magistrates to examine some of them who were con-
nected with the jail, in order " to guard against
deviation," and the depositions so taken were placed
on the record, " to be used by either party, though
not themselves as evidence." The prisoner was con-
victed. On a motion to quash the conviction,
Held that L had a distinct and substantial interest
which disqualified him from acting as Judge. Held,
further, that although a Magistrate is not disquali-
fied from dealing with a case judicially merely be-
cause in his character of Magistrate it may have
been his duty to initiate the proceedings, yet a
Magistrate ought not to a:t judicially in a case
where there is no necessity for his doing so, and
where he himself discovered the offence and initiat-
ed the prosecution, and where he is one of the
principal witnesses for the prosecution. Queen v.
Bholanath Sen

I. L. H. 2 Calc 23 : 25 W. R. Cr. 57

Disqualification

■ of servant of Corporation of Calcutta to adjudicate
on summons at instance of Corporation. A,
alleged to have carried on business in Calcutta with-
out having taken out a license under Bengal Act IV
•of 1876, was summoned at the instance of the Corpo-

JUDGE— rowW.

4. QUALIFICATIONS AND DISQUALIFICA-
TIONS— co««!Z.

ration by B, a servant of the Corporation and also a
Justice of the Peace. The case was subsequently
heard by B, who convicted A, and sentenced him to
pay a fine. Held, that the proceedings and ultimate
conviction of A were illegal, inasmuch as B, being a
servant of the prosecutor, i.e., the Corporation, had
such an interest as might give him a bias in the
matter, and that con.=equently he ought not to have
sat as Justice of the Peace either at the granting or
upon the hearing of the summons. Wood v. Cor-
poration OF THE Town of Calcutta

I. L. R. 7 Gale. 322 : 9 C. L. R. 193

See Queen v. Tarixee Churn Bose

21 W. R. Cr. 31

where it was held that there was nothing absolute-
ly illegal in a Municipal Commissioner, also editor
of a newspaper, trying a case of which he had ex-
pressed a strong opinion in his paper.

6. Transfer of suits

— Judge exercising executive functions — Bengal
Civil Courts Act (VI of 1871) s. 25— Act Xlv
of 1882, s. 25. An officer who exercises executive
and judicial functions having himself dealt with a
certain matter and formed and expressed an opinion
upon its merits in his executive capacity, and having
further advised and directed litigation in support of
this view, is in consequence disqualified from dealing
as a Judge with this same question when it comes
into Court and has to be dealt with judicially.
LoBURi Domini v. Assam Railway and Trading
Co I. L. R. 10 Calc. 915

Expression of

opinion by a Judge in a counter case — Competence

j to try — Grounds of transfer — Criminal Procedure

j Code, 1882, s. 555. A Judge is not incompetent to

j try a case of rioting simply because he has tried and

I decided a counter rioting case and expressed an

1 opinion ; but in trying the one before him, he ought

I not to be influenced by the impression he may have

formed in the other case, but ought to deal with it

on its owm merits, and on the evidence adduced

I therein, quite independently of the evidence which

I may have been produced before him in the counter

I case. Queen v. Chunder Bhui/a, I. L. R. 20 Calc.

! 537 ; Bachoo Mulla v. Sia Ram, I. L. R. 14 Calc.

385 ; Hossain Bux v. Empress, I. L. R. 6 Calc.

96, referred to. Chakotvri Lai v. 3Ioti Kumii, 13

C. L. R. 275, distinguished. Asimuddi v. Govinda

Baidya . . . 1 C. W. N. 426

Jurisdiction —

Bias — Magistrate's jurisdiction where complainant
is his private servant — Legality of conviction and
sentence passed by such Magistrate in such a case.
'J'he mere circumstance that a trying Magistrate is
the master of the complainant does not deprive the
Magistrate of his jurisdiction, though it is expedi-
ent that such a complaint should be referred to
another Magistrate. In re the petition of Basapa
I. L. R. 9 Bom. 172

( 5931 }

DIGEST OF CASE&

( 5932 )

JUDGE— eonti.

4. QUALIFICATIONS AND DISQUALIFICA-
TIONS—concZd.

Disqualification

for trying case — Bias — Mamlatdar acting in the
managnnent of property under the orders of the
Taliiihdari Settlement Officer — Possessory suit —
Interest disqualifying Judge from tiying case.
No Judge can act in any matter in which he has
any pecuniary interest, nor where he has any in-
terest, though not a pecuniary one, sufficient to
create a real bias. A INTamlatdar, ^vho under the
orders of the Talukhdari Settlement Officer had
acted in the management of the property in dispute
in a possessory suit before him, was held to have
such an interest as'^to disqualify him from trjang
the case. Where an officer of Government has in
the course of his executive duties " formed an
opinion upon a matter and has acted upon that
opinion, or sought to give effect to it as an agent on
behalf of a public body which has become a litigant
in a cause," the law will presume an interest creat-
ing a bias sufficient to disqualify him as a Judge, j
Aloo Nathtj v. Gagubha Dipsa^tgji j

1. 1.. B. 19 Bom. 608 !
10. Criminal Proce-
dure Code (Act X of 1882), s. 555— Jurisdiction of j
Appellate Court interested in case to grant permis- j
sio7i to a siihordinate Court to try a case. The I
interest which might disqualify a Court from trying |
or committins for trial a case having regard to s. 555 j
of the Code of Criminal Procedure nill not prevent
an Appellate Court from giving the permission |
contemplated by that section. Queen- Emprtlss v. \
Fateh Bahadur . . I. L. R. 20 AH. 181 |

11. Qualification as witness — |

Judge giving evidence in case. A Judge cannot
give evidence in a case merely by making state-
ment of fact in his judgment. If he intends the I
Courts to act upon his statement, he is bound to
make that statement in the same manner as anv
other -witness. Rousseau v. Pinto .7 W. R. 189

KisHORE Singh v. Gunnesh Mookerjee

9 W. E. 252

See In the matter of the petition of Hubro
Chunder Paul . . . 20 "W. K. Cr. 76
Kallonas v. Gunga Gobind Roy Chowdhry

25 W. R. 121

12.

Competent ivit-

ness in trial of case instituted by himself. A Judge
is a competent witness and can give evidence in a
case being tried before himself, even though he laid
the complaint acting as a public officer, provided
that he'has no personal or pecuniary interest in the
subject'of the charge, and he is not precluded there-
by from dealing judicially with the evidence of
which his own forms a part. Queen v. Mukta
Singh 6 B. L. R. A. Cr. 7 : 13 W. E. Cr. 60

5. DEATH OF JUDGE BEFORE JUDGMENT.

L ; — Re-hearing of case. When

a Judge dies after hearing and deciding a case, the

JUDGE— concW.

5. DEATH OF JUDGE BEFORE JUDGMENT—

concld.
only record of his decision being an entry in th©
Court order-book, it is not competent to any co-or-
dinate Court to take up and re-hear the case ;
but the High Court will, on the ground of want of
record of reasons for the decision, reverse the order
and remand the case for re-hearing. Sukram v.
Kala Kahar , . 3 B. L. R. A. C. 105

See NoBO Chunder Banerjee v. Ishur Chun-
deb Mitter . . . .12 "W. R. 254

2. 1 In a case where

written opinions in a case had been sent to the Re-
gistrar by Judges who had heard the case and then
died or resigned before judgment uas pronounced
in open Court, it was held by the Full Bench that
such opinions were not judgments, but merely
memoranda of the opinions and arguments of such
Judges in the case. Mahomed Akil v. Asadun-

NISSA BiBEE. MUTTY LaLL SeN GuKJAL V^

Deskhai Roy

B. L. R. Sup. Vol. 774 : 9 W. R. 1

JUDGE or HIGH COURT.

See Practice — Civil Cases — Applica-
tion after Refusal

I. li. R. 16 Bom. 511
See Reference to Full Bench.

I. L. R. 28 Calc. 211

■ acting in English Department

of High Court,

See Transfer op Criminal Case —
General Cases. I. L. R. 1 Calc. 219

order of —

See Letters Patent, High Courts,.
1865, CL. 15.

power of—

See Appeal in Criminal Cases— Practice
AND Procedure. 9 B. L. R. A. P. 6
See Beng. Reg. V of 1812, s. 26.

B, L. R. Sup. Vol. 655
See Certificate of Administration — •
Cancelment or Recall of Certifi-
cate . . . 5 B. Ii. R. Ap. 21
See Guardian — Appointment.

I. L. R. 26 Calc. 133
See Letters Patent, High Court,
CL. 15 . I. L. R. 20 Mad. 152

See Reference to Full Bench.

B. L. R. Sup. Vol. Ap. 43-
I. L. R. 25 Calc. 896
See Review — Power to Review.

I. L. R. 23 Calc. 339

See Superintendence of High Court.

1. ; Appointment of Judge— High.

Court's Charter Act {24 dh 25 Vict., c. 104), ss. 7 andL

( 5933 )

DIGEST OF CASES.

( 5934 )

JUDGE OF HIGH COXTRT—contd.}

16— Interpretation of statute — " On the happening
of a vacancy "—Nature of power conferred by s.

7, discussed— Evidence— Preemption of law arising
from th^exercise de facto of the functions of a Judge
of a High Court. The words " upon the happening
of a vacancy in the office of any other Judge ' in

8. 7 of the 24 & 25 Vict., c. 104, mean upon the
happening of a vacancy in the office of a Judge ap-
pointedito his office by Her Majesty. They are not
appHcable to the case of a vacancy caused by a
person appointed to act as a Judge, under the pro-
visions of the second part of the abovementioned
section, ceasing to perform the duties of such office.
The words above quoted further mean that the
power conferred by s. 7 must be exercised within a
reasonable time, that is to say, a practicable time
after the happening of a vacancy. It cannot be
held that the power conferred by the abovemen-
tioned section can be held in suspense for several
years and then be legally exercised. Where a
person had in fact for a period of more than a year
been exercising all the functions of a Judge of the
High Court in virtue of an appointment purporting
to be made by the Lieutenant-Governor of the
North-Western Provinces and Chief Commissioner
of Oudh, under sanction of Her Majesty's Secretary
of State for India-. Held, that though, so far as
the vahditv of the appointment depended upon the
provisions of ss. 7 and 16 of the 24 & 25 Vict., t. 104,
the appointment was apparently ultra vires, it must
nevertheless be presunied, in the absence of fuller
information, that the appointment was legally
made in the exercise of some power, unknown
to the Court, vested in the Secretary of State for
India. Queen-Empress v. Ganga Ram

I. li. K. 16 All. 136

2. High Courts^

Charter Act [24 d.- 25 Vict., c. 104), ss. 7 and V—
Unreasonable delai, in snaking appointment, effect
of. Held, in reference to the High Court's Act, 1861
(24 & 25 Vict., c. 104), in which no time is mentioned
for the appointment of an Acting Judge on the
occurrence of a vacancy, that such an appointment
could not be iiuestioned on the ground of its not
having been made until after a period alleged to be
unreasonable. Balwant Singh v. Ramkishoke
I. L. R. 20 All. 267
L. R. 25 I. A. 54

Rao Balwant Singh v. Ramkishore

2 C. W. TJ". 273

3. Judge sitting in ordinary-
original criminal jurisdiction of the High
Covirt — Trial commenced and evidence partly gone
into before one Judge — Retirement of Judge from
the case under s. .5-5-", Criminal Procedure Code,
without discharging the jury — Replacement by new
Judge appointed by the Chief Justice — Powers of
Chiff Justice over other Judges of the High Court
— Jurisdiction cf the new Judge to try case pending
before another properly constit^ited Court — Dis-
charge of jury before verdict, how effected — Con-
current trials on the same indictment and on the
same facts — Nolle prosequi — Criminal Procedure

I JUDGE OF HIGH COURT- conc?(/.

I Code, 1882, ss. 282, 283, 323, 555. At the Criminal

I Sessions of the High Court the trial of the accused

i had commenced before Hampini, J., and evidence
partly had been gone into when His Lordship re-
tired from the case under s. 555 of the Criminal

i Procedure Code and the case was adjourned with-
out the jury being discharged. The Chief Justice,

j purporting to act under cl. 13 of the Charter, ap-
pointed Stevens, J., to preside at the trial of the
accused. In answer to a question by Stevens, J.,
the standing counsel intimated that he intended
proceeding with the trial from the point where it
had been left. Whereupon it was contended on
behalf of the accused that Stevens, J., could not
proceed with the trial as Rampini, J., and the jury
emiJanneiled before him had still the seisin of the
case. The Advocate General preferred a nolle

I prosequi, and the accused was discharged. Queen-
Empress v. Khagendra Nath Banerjee

I 2 C. W. N". 481

: 4. Grant of application for leave

to institute suit which had been refused
by another Judge. Leave to institute a suit
relating to property out of the jurisdiction, as well
as to property within such jurisdiction, was refused
by one Judge on the 30th June 1874. The same
application, in the same suit, between the same
parties, relating to the same propertj-, and founded
on the same cause of action, was made before an-
other Judge on the 15th December 1874, and the
leave prayed for was granted. Held, that the order
should not have been" made, and that it should be
j discharged. Vythelinga Mudelly v. Cunda-
' SAWMY Mudelly . . . S Mad. 21

JUDGE or THE SUPREME COURT
IH" INDIA.

Power of acting as Judge and

jury. By the constitution of the Supreme Courts
in India, the Judges, for the purpose of the trial of
an action, sit as a jury as well as Judges, and the
same weight is to be given to adecisioii of the Judges
in such circumstances as to the verdict of a jury in
England in which the Judge who tries the case
makes no objection. Menadee Mahomed Cazun
Serazee v. Ali Mauamed Shoosbey

6 Moo. I. A. 27
JUDGES, DIFFERENCE OF OPINION
BETWEEN.

See Appeal in Criminal Case — Prac-
tice AND Procedure

2 B. L. R. F. B. 25

See Civil Procedure Code, 1882, s. 575

Letters Patent, High Couht, cl. 15.

4 B. L. R. A. C. 10. 181

B. L. R. Sup. Vol. 694

13 W. R. 310

14 W. R. 298
I. L. R. 10 Calc. 108

See Letters Patent, High Court, cl.

36. , . I. Ij. R. 3 Bom. 204

14 Moo. I. A. 209

I. L. R. 15 Bom. 452

( 5935 )

DIGEST OF CASES.

( 5936 )

JUDGES, DIFFERENCE OF OPINION

BETWEEN— cowW.

See Letters Patent, High Cottbt,

N.-W. P., CL. 10 I. li. R. 1 AIL 181
I. L. R. 9 All. 655

See Letters Patext, High Court,
N.-W. P., CL. 27 . . 2 N. W. 117
I. L. R. 11 All 176
See Reference to Fo.l Bench.

I. L. R. 3 Gale. 20

See Reference to High Court — Civil

Cases . . 4 C. W. N. 389

JUDGMENT. COL.

1. Civil Cases —

(a) What amounts to . . . 5937
(6) Language of . . . . 5938

(d) Judgment governing other 6949

CASES

(e) Construction of Judgment . 5949
(/) Right to Copies of . . 5949

2. Crimnal Cases .... 5950

See Appeal . I. L. R. 33 Calc. 1323

See Av?AKD . I. L. R. 33 Calc. 789

See Civil Procedure Code (Act XIV

; OF 1882), s. 199 I. L. R. 35 Calc. 756

See Civil Procedure Code.. 1882, ss^. 206.

622 . . I. L. R. 31 Bom. 447

See Civil Procedure Code, 1882, s. 202.

I. L. R. 31 All. 153

See Criminal Procedure Code, ss. 366,

367, 370.
See Decree . . 8 C. W. N. 473
See Foreign Court, judgment of.
-See Judgment in rem.
See Judgment debt.
See Judgment-debtor.
See Landlord and Tenant.

13 C. W. N. 949

See Letters Patent, High Courts,
1865, CL. 15.

See Letters Patent, High Court,

N.-W. P., CL. 10 . I. L. R. 1 All. 81

I. L. R. 9 All. 655

1. L. R, 11 All. 375

L L. R. 17 AIL 438

See Letters Patent Appeal.

L L. R. 35 Calc. 1096
See Limitation Act, 1877, s. 12.
8u Limitation Act, 1877, s. 19.

10 C. W. N. 874
Set Peactice I. L. R. 32 Bom. 432

JUDGMENT— cora^rf.

.See Presidency Magistrate

8 C. W. N. 587

See Privy Council . 8 C. W. N. 296

See Privy Council, Practice of — Con-
current Judgments on Facts.

See Special or Second Appeal — Other
Errors of Law or Procedure —
Judgments.

copy of-

.See Review — Form of, and Procedure
on. Application. I. L. R. 17 All. 213

copy of, deduction of time neces-

sary for obtaining-

See Limitation Act, 1877, ss. 12 and 5.

*S'ee Limitation Act, 1877, Sen. II, Art.

177. . . I. L. R. 1 AIL 644

I. L. R. 19 Bom. 301

in civil suit, admissibility in

evidence of—

»See Evidence — Criminal Cases — Judg-
ment in Civil Suit.

I. L. R. 6 Calc. 247
I. L. R. 23 Calc. 610

in criminal cases —

-See Discharge of Accused — Effect of
Discharge . I. L. R. 29 Calc, 726

in former suit, admissibility in

evidence of—

*S'ee Estoppel — Estoppel by Judgment.
<See Evidence, Civil Cases — Decrees.
See Res Judicata — Estoppel by Judg-
ment.

m rem —

See Judgment in rem.

;See Res Judicata — Estoppel by Judg.

MSNT . .1. L. R. 6 Calc. 171

I. li. R. 16 Mad. 380

I. L. R. 20 Calc. 888

I. L. R. 25 Calc. 522

— not inter partes —
See Evidence Act.

L L. R. 31 Bom. 143

— not in accordance with law —
See Civil Procedure Code, 1882, ss.

551, 574

13 C. W. N. 177 : 1031

— notes of, to explain decree —

See Decree — Construction of Decree
— General Cases.

L L. R. 1 Bom. 158

reasons for—

iSce Provincial Small Cause Courts
Act . . I. L, R. 31 Bom. 314

( 5937 )

DIGEST OF CASES.

jrUDGMENT— co«<(i.
reversal of-

See Appellate Court — Interference

WITH, AND Power to vary, order of

Lower Court.

— variation of, addition to—

See Criminal Procedure Code," s. 367

(1872, s. 464) . I. Ii. R. 3 Mad. 48

23 W. B. Cr. 49

1. CIVIL CASES,
(a) What amounts to.

1. Heeord of impression or

opinion on partial evidence. Where a District
Judge on aj^peal made an order of remand under
Act'' VIII of 1859, s. 356, that evidence might be
taken on one of the points raised, and at the same
time recorded the impression which his mind had
received on the other parts of the case, it was held
that the opinion so recorded was not a judgment on
appeal. Buloram Baboo v. Issur Chunder
Baboo 23 W. R. 77

2. Memoranda of opinions —

JUDGMENT— fonW.

Resignation or death of Judge before judgment.
Held, per totam Curiam, that written opinions sent
to the Registrar by Judges who had retired or
died before the judgment in the case was pro-
nounced in open Court are not judgments, but
merely memoranda of the opinions and arguments
of such Judges. Mahomed Akil v. Asadunnissa
BiBEE. Mutty Lall Sen v. Deskhar Roy

B. L. B. Sup. Vol. 774 : 9 W. B. 1

3. Judgment written by Judge,

and pronounced in Court by his successor.

— A Subordinate Judge wrote out his judgment in
a case which had been heard before him after he
had been relieved from his office, and left the judg-
ment to his successor to be pronounced in open
Court. The judgment was pronounced in Court by
the succeeding Subordinate Judge. An objection
being taken in special appeal that the judgment
read out by the succeeding Subordinate Judge was
not a judgment according to Act VIII of 1859.
Held, that the judgment was valid. Parbutti v.
Bhikun . . . 8 B. L. B. Ap. 98

s. c. Parbutty v. Higgin 17 W. B. 475

3a. Judgment

written bij Judge after taking leave and pronounced
by successor — Civil Procedure Code (Act XIV of
1SS2), s. 199. — The Judge, who has heard the evi-
dence in a case, is entitled under s. 199 of the Civil
Procedure Code to write his judgment and to send
it to his successor for delivery, although the judg-
ment was written by him after he had taken leave
or left the post which he was occupjdng, when he
heard the case. Mussamul Parbutty v. Mussamut
Higgin, 17 W. R. 475, referred to. Sundar Kuar v.
Chandbeshwar Prasad Nabain Singh (1907)

I. L. R. 34 Calc. 293

1. CIVIL CASES— cowW.
[a) What amounts to — concld.

4. Judgment given by succes-
sor on Judge getting promotion. Remarks
on the impropriety of a Principal Sudder Ameen,
who, after hearing the evidence in a suit, was pro-
moted in the same district from the second to the
first grade and refrained from giving judgment, but
left it to his successor for decision. Qua:re : Per
Markby, J. — Whether such decision is le»al. Ra-
DHA Nath Banerjee V. JoDoo Nath Singh

7 W. B. 441

5. Death of plaintiff after hear-

ing, but before judgment — Judgmrnt given
by Court in ignorance of plaintif)\s death — Judgment
and decree, validity of — Doctrine of nunc pro tunc.
The successful plaintiff in a suit died a few days
after the hearing of the suit had been concluded
and judgment reserved. Unaware of the death of
the plaintiff, the Court proceeded to deliver judg-
ment and pass a decree in favour of the deceased
plaintiff. Held, that nothing remaining to be done
by the parties on the day when judgment was re-
served, the judgment should read as from that date,
and the decree was a valid decree. Cumber v.
Wane, 1 Smith's L. C. 10th Ed. 325 ; Ramacharya
V. Anantacharya, I. L. R. 21 Bom. 314 ; and
Surendro Keshub Roy v. Doorgasoondery Dossee,
I. L. R. 19 Calc. 513, followed. Chetan Charan
Das v. Balbhadra Das I. L. B. 21 All. 314

[b) Language of.

6. Proper language for judg-
ment— Judge whose vernacular is English. A
Judge whose vernacular language is Enghsh ought
to write his decision in his own language, though to
do otherwise does not affect its validity. Huro
SooNDURY Dabee V. Sreedhur Bhuttacharjee
17 W. B. 352

Oral judgment — Oral statement

of intended judgment. A Judge may, at the close
of the hearing of a suit, state at once orally the
judgment which he intends to record and deliver.
Anonymous ... 5 Mad. Ap. 8

8. Materials on which judg-

ment should be founded. Civil Procedure
Code, 1859, ss. 172, 1S3 — Examination of witnesses
in lower Court — Perusal of depositions. The
meaning of s. 183, Act VlII of 1859, taken in con-
nection with s. 172, is that the judgment is to be
given upon the examination of the witnesses by the
Judge himself in the Court of first instance, and
not upon a perusal of depositions except those taken
under s. 173 and tne subsequent .sections, which are
expressly allowed to be read in e\ddence at the
hearing ; and care should be taken, in the transfer
of suits and in the disposal generally of the business

( 5939 )

DIGEST OF CASES.

( 5040 )

JUDGMENT— fOTKrf. j

1. CIVIL CASES— contd. \

of the lower Courts, to prevent the necessity of
resummoning witnesses. Naeanbhai Veijbhxtkan-
DAS V. Naroshankar Chandro Shankar

4 Bom. A. C. 98

9. Decision on facts
— Reasons. In deciding on the facts of a case,
Judges should not base their decision upon some
isolated piece of evidence, but take into considera-
tion and record their opinion on the whole evidence
offered on both sides. Tiltjckdh.4eee Singh v. \
Samoodra Singh . . . 6 W. R. 9 '

10. Necessity of distinct find-
ings on material issues. There must be a dis-
til ct huding one way or other on all the material
issues in a case. Shtjrno Moyee Dossia v. Joy
Narain Bose . . , 8 W. R. 481

XL Duty of Appel-
late Court as to judgments — Civil Procedure Code,
1859, s. 359. It is the duty of Appellate Judges to
act so far in conformity with the provisions of the
Code of Civil Procedure as is sufficient to show that
the Court has dealt with each grousid of appeal, and
more especially to record distinct findings on ques-
tions of fact. ANONYMOtrs . ; 4 Mad. Ap. 56

12. General assent to judgment

of lower Court — Dttfy of Appellate Court as to
judgments. Wiere the Civil Judge, confirming a
decree of the District Munsif, stated by way of
judgment that he was of opinion that the decision i
of the Munsif w as fair and equitable, the High Court, i
on special appeal, sent back the case with direc- !
tions to the Ci\al Judge to record a judgment in sub-
stantial conformity with the provisions of the Code
of Civil Procedure. Keistna Reddy v. Strinivasa
Reddy . . . 4 Mad. Ap. 56 note

13. — _ Dutij of Appel-
late Court as to judgments. An Appellate Court
should take notice of all the specific objections ar-
gued before it, and not content itself with recording
a general assent to a fii'st Court's finding. Shum-
bhoonath Chowdhry v. Prokash Chunder Dtttt

8W. R. 272 j

14. Judgment of Appellate '

Court — Seasons for the decision — Civil Procedure
Code, 1882, s. 574. S. 574 of the Code of Civil Proce- \
dure is imperative. Under that section, the Appel- j
late Court is bound to state the reasons for its de- \
cision. A Court of Apj^eal framed certain issues I
under s. 566 of the Code of Civil Procedure and re- ,
manded them for findings by the original Court. 1
On the return of those findings, as neither party j
filed any objections, the Appellate Court accepted j
these findings, without giving any reasons for so I
doing, or even stating in its judgment whether it
concurred in them or not, and confirmed the decree !
of the original Court. Held, that the judgment of
the Appellate Court was not a judgment according
to law. Bhagvan v. Kesur Kuverji

I. L. R. 17 Bom. 428

JUDGMENT— con/d.

1. CIVIL CASES— con<(Z.
(c) Form and Contents of Judgment — contd.

15.

Judgment not in proper

form— Cm7 Procedure Code, 1859, s. 359— Illegal
and defective judgment. A Judge's decision, not
being in conformity with the provision of s. 359,
Act VIII of 1859, was held to be illegal and defective.
RuGHOBUR SuHAi V. Chattrapat . 1 Agra 73

Imrit Singh v. Koylashoo Koer

11 W. R. 558

16.

Civil Procedure

Code, 1859, s. 359 — Judgment of lower Appellate
Court — Omission to record decision on material
points. The Judge of the lower Appellate Court not
having recorded his judgment as required by s. 359
of Act VIII of 1859, the case was sent back to the
lower Court for the Judge to state the points for
decision, and to give his decision upon those points
consecutively. Tatur Khawas v. Jagannath
Prasad ^. 7 B. L. R. Ap. 14 : 15 W. R. 131

17.

Judgment of

Appellate Court. The judgment of an Appellate.
Court should clearly and fully dispose of all the
points in issue between the parties by a distinct
finding on each of them. BhagbutKhan v. Puddo
Bewa . . . . 3 W. R. 192

Dhun Rae v. Ramphul Rae . 2 N. W. 109
SooKH Raj Singh v. Tuffazool Hossen

2 W. R. 142

18. Civil Procedure

Code, 1882, s. 574 — Contents of appellate judg-
ment. The judgment of an Appellate Court should
show on the face of it that the points in dispute were
clearly before the mind of the Judge, and that he
exercised his own discrimination in deciding them.
Sitarama Sastrulu v. Suryanarayana Sastrulu

I. L. R. 22 Mad. 12

19. Reasons for decision—Civil

Procedure Code, 1859, s. 350. S. 359, Code of Civil
Procedure, made it incumbent upon an Appellate
Court to set down distinctly the point or points on
which it has to decide the appeal, and record its
reasons for the decision it arrives at in each and all
of these points. Shurbessur Ghose v. Sadhoo
Churn Ghose . . . . 15 W. R. 130

Raj Chunder Burman v. Roma Kant Chuker-
butty 15 W. R. 324

20. — Civil Procedure

Code 1859, s. 359. The judgment of an Appellate
Court should state clearly the reasons of the conclu-
sions therein contained. Chunder Kant Chow-
dhry V. Hurish Chunder Chowdhry

1 W. R. 214
Goburdhun v. Sadhoo . . 1 "W. R. 244
Kartick Napit v. Personomoyee Naptinee

2 W. R. 77
DooLEE Chund V. OoMDA Bebum 18 "W. R. 473-

( 5941 )

DIGEST OF CASES.

( 5942 )

JUDGMENT— co7iW.

1. CIVIL CASES— co«/rf.
(c) Form and Contents of Judgment — co7itd.

Khettfe Mohun Gossain v. Bhyetjb Chunder

Shet . . . . 3 W. K. 126

Teilochun Dutt v. Ishen Chunder Chowdhry

3 W. S. 176

Ameena Khatoon

16 W. E. 280

Hossein Buksh

Korean Ali v. Ashan Ali
Shathuk Paul

4 W. R. 4

GuDADHUB Roy

4 W. R. 100

Gakpatram Lakhjiiram v. Jaichand Talak
Chand . . .4 Bom. A. C. 109

Bhagvatsangji Jalamsangji v. Partabsangji
Ajjabhai ... 4 Bom. A. C. 105

21.

The reasons for

their decisions must in all cases be recorded by the
Judges of the High Courts in India. Kacheka-
LYANA Rungappa Kalakka Tola Udiar V. Kachi-

VIGAJAYA RuNGAPPA KaI.AKKA ToLA UdIAR

2 B. L. R. p. C. 72 : 11 W. R. P. C 33
12 Moo. I. A. 495

22. . Appellate Court.

An Appellate Court is not bound to discuss ser^a-
tim the arguments adduced by a lower Court in sup-
port of its judgment, but need only give its own rea-
sons for its own judgment. Indrabati Kunwari
V. Mahadeo Chowdhry . 1 B. Ij. R. S. N. 2

23. — Reversal of judg-
ment of lou-er Court. — An Appellate Court is bound
to state its reasons for reversing the decision of a
lower Court. Mahadeo Ojha v. Pakmeswar Pan-
day ... 2 B. L. R. Ap. 20

MuNSOOB Bibee v. Ali Meah 17 W. R. 358

Mahomed Salleh v. Nusseerooddeen Hossein
21 "W. R. 284

24. Civil Procedure

Code, 1S59, s. 359.— Held by Markby, J., that in
saying that the " reasons " for the decision of an
Appellate Court must be stated, s. 359, Act VIII
of 1859, meant not the reasons for coming to any
conclusion of fact, but the reasons showing upon
what points of fact or law the decision runs. The
bare fact that a Judge had not given the reasons
for his judgment is not in itself a ground of special
appeal. Ramessur Bhuttacharjee v. Bhanoo
12 W. R. 272

25.

Omission to state

reasons in judgment — Civil Procedure Code {Act
XIY of 1SS2), ss. 574, 584. The fact that the
judgment of an Appellate Court is not drawn up
in the manner prescribed by s. 574 of the Civil
Procedure Code is no ground for a second ajipeal
under s. 584, unless it can be shown that the judg-
ment has failed to determii.e any material issue of
law. Bisvanath Maiti r. Baidyanath Mandtl
I. L. R. 12 Calc. 199

JUDQMENT-con<<f.

1. CIVIL CASES-^;oBii.
(c) Form and Contents of Judgment — conld.

26.

Civil Procedure

Code, 1859, s. 359. The judgment of an Appellate
Court must contain the points for determination,
the decision thereupon, and the reasons therefor.
It need not, under s. 359 of the Code, contain a re-
view or setting forth of the whole of the evidence.
The propriety of giving an intelligent and clear ac-
count of the evidence in the judgment laid down.
NooR Mahomed v. Zuhoor Ally 11 W. E, 34
27. _ Finding of Ap-

pellate Court — Omission to give reasons. The find-
ing of an Appellate Court not accompanied by rea-
sons is not conclusive. Gopaleao Ganesh v. Kis-
HOR Kalidas . . I. L. R. 9 Bom. 527
See Kamat v. Kamat

I. L. R. 8 Bom. 371

28. Judgment unsup-
ported by reasons — Defective judgment on facts —
Grounds of second- appeal. Where no reasons are
given by a lower Appellate Court for the conclusions
arrived at, such conclusions cannot be accepted as
legal findings of fact in second appeal. Kamat v.
Kamat, 1. L. B. 8 Bom. 368, 370, and Baghu-
nath v. Gopal Nilu Nafhaji, I. L. B. 9 Bom. 452,
454, referred to. Ningappa v. Shivappa

Ii. R. 19 Bom 323

29, ■ — Omission to give

reasons for order holding appeal barred. Order
discharged under the circumstances, the District
Judge having given no reasons for making the order.
Raghunath GopaIj v. Nilu Nathaji

I. L. R, 9 Bom 452

30. Judgment of ap-

pellate Court. It is not obligatory on an Appellate
Court to meet categorically every one of the argu-
ments advanced by the first Court in support of its
decision. The meagreness of the judgment of a
lower Appellate Com-t can only warrant a remand
when the judgment does not show that the Court
has considered the evidence. Krishendro Roy
Chowdry v. Digumburee Debia Chowdrain

16 W. R. 15

See Shumshuroody v. Jan ;MAnoM>:i>

Sikdar . . . 21W.R260

31. Appellate Court

confirming judgment. An Appellate Court is bound
to give reasons for deciding a specific point (in this
case limitation) raised before it on appeal even if
it confirm generally the order of the Court below.
Radha Gobind Kur v. R.am Kishore Dutt

8 W. R. 340

32, ■ Civil Procedure

Code' (Act XIV of 1882), s. 574— Judgment not
containing the reasons for decision, validity of — ■
Judgment of Appellate Court affirming judgment
of fir.^t Court. Where a judgment of the lower
Appellate Court does not go fully into the reasons

( 5943 )

DIGEST OF CASES.

( 5944 )

JUDGMENT— confJ.

1. CIVIL CASES— contd.

for affirmance and even does not so much as state
whether it accepts, as correct, reasons given
by the first Court, it is not a proper judgment w ithin
the meaning of s. 574 of the Civil Procedure Code.
It is very desirable that the Appellate Court should
state, with as much fullness as the nature of the
case may require, the reasons for its affirming the
decision of the first Court. Eadha Gobind Kur v.
Ramkishore Dutt, 8 W. R. 240, referred to. Haima-
BATi Dasi v. Govinda Chandea Gnosii

2 C. W. N. 695

33.

Omission

give reasons — Appellate Court — Civil Procedure
Code, 1877, s. 574. Where the judgment of the
lower Appellate Court dismissing an appeal was
merely as follows : ' ' the appeal is dismissed with
costs ' ' — the High Court set aside the decree on the
ground that the Court had not complied ft-ith the
provisions of s. 574 of the Civil Procedure Code.
Srikant Dey v. Huri Das Pai. 11 C. L. R. 131

34. Affirming judg-
ment of lower Court, ^\^lere the decision of a case
involves issues of fact, and the first Court has gone
fully into the evidence and recorded its finding
and decision, if the Ajjpellate Court agrees \\ith the
conclusions of the Court below, the Appellate Court
is not obliged by law to state in detail the reasons
previoush' recited in which it concerns. Lalla
JUGGESHFR Sahoy V. OOPAL Lall 15 W. R. 54

35. _ Civil Procedure

Code, 1859, s. 359 — Omission to give reasons. In a
case decided on pure questions of fact, no point
being left undetermined, in which the Judge in ap-
peal endorsed the opinion of the first Court, without
giving detailed reasons, the High Court did not
consider it right to remand the case to the Judge to
set forth in his judgment the same reasons which
influenced the Court of first instance. Imeit Lall
ThAKOOR v. NuCKSHED SuHAi'E 10 "W. R. 100

KULUMUTEE KOOER V. JoWAHTJR LaLL

11 W. R. 318

37.

Affirmance oj de-

cision of lower Court — Decision on oral testimony-
A plaintiff is entitled to some opinion by the lower
Appellate Court upon the oral testimony on his
side. The mere affirmance of the decision of the
first Court which considered the oral evidence in

JUDGMENT— cowW.

1.— CIVIL CASES- contd.
(c) Form and Contents of Jttdgment —conW.

detail does not involve the adoption by the lower
Appellate Court of the first Court' s view of the oral
testimony. Rajoo v. Raj Coomar Singh

7 W. R. 137
Omission to give

36. . . Civil Procedure j

Code, 1859, s. 359.— Where a lower Appellate Court j
took no notice in its decision of a large quantity of
evidence of very considerable importance which had '
been urged before it as of the highest jiossible charac- '
ter, and gave no reasons for agreeing ^\•ith the
Coiurt of first instance that the evidence in question
had very little connection with the case, its judg-
ment was held to be not a legal decision in the terms
of s. 359, Act VII of 1859. Adheen Misser v.
JOORAJ MlSSER ... 11 W. R. 312 '

reasons. As a matter of la\\-, the decision of a lower
Appellate Court cannot be said to be erroneous or fit
to be reversed because the Judge has not, in re-
versing the decision of the Court below, categori-
cally met and refuted the reasons on which that
decision had proceeded ; but such an omission may
form a good ground for an application to the High
Court to require the lower Appellate Court to set
forth the reasons on which its judgment proceeded.
GoLAM HossEiN V. Ram Doyal Ghose

12 W. R. 152

Judgment of cm

Appellate Court reversing the judgment of the first
Court, requisites of. It is clearly the duty of an
Appellate Court, reversing the judgment of the first
Court, to state clearly and fully the grounds on'
which it does so, and the more especially when the
first Court has gone fully into the facts and the
reasons for the conclusion arrived at. Ram Ran-
GiNi Chaxda Chaudhurani v. Chaxdra BixonE
Pal . . 1 C. W. N. 691

40. Civil Procedure

Code, 1859, s. 359 — Ground for remand. It is the
duty of the Appellate Court when it reverses the
decision of the first Court, and more especially when
the judgment of the first Court is full and cogent, to
point out the grounds on which it comes to a
different conclusion. Where a District Judge had
omitted to do so, and, having left the country,
could not be required to supply the omission, the
High Court, being unable to make the ordinary
presumyjtion that he had fully considered the
evidence, set aside liis judgment, and remanded
the case to be heard in appeal de novo. Kristo
Chunder Chuckerbxjtty V . Ram Bromho Chuc-

KERBUTTY . . . . 20 W. R. 403

41. —— Duty of Appel-
late Court — Tratisfer of Judge — Irregularity in
recording judgment. — The Civil Judge, in confirming
a decision of the District Munsif, did not state the
reasons upon which his judgment was founded,
and the High Court remitted the case in order
that the Civil Judge might record a judgment in
accordance with the Civil Procedure Code. The
Civil Judge had been appointed to another district ;
and when the case went down, the new Judge had
the case re-argued before him, and reversed the de-
cision of the Munsif. The High Court, under the
circumstances, held that effect should be given to
the first judgment, notwithstanding the irregularity.
Kristna Reddi v. Srinivasa Reddi 5 Mad. 174

42. • ■ Omission to give

reasons — Death of Judge before judgment. A
Deputy Collector having died before giving hie

( 5945 )

DIGEST OF CASES.

( 5946 )

JUDGMENT— coTi^d.

1. CIVIL CASES— contd.
(c) FoKM AXD Contents OF Judgment — contd.

reasons for a decree said to have been made by him,
the whole of the subsequent proceedings were held
to be bad, and the case was remanded to the Col-
lector to be tried de novo upon the evidence upon
the record. Nobo Chunder Banerjee v. Ishur
Chunder Mitter . . 12 W. R. 254

43. Judgment of Ap-
pellate Court — Omission to give reasons — Remand
under ss. -iS') and 587, Civil Procedure Code, 1882.
Where the lower Appellate Court omits to give
reasons for its decision, the High Court will retain
the ease in second appeal, and either require the
Judge to state his reasons, or, in the event of his
absence, refer the case to his successor for fresh
trial. AssANULLAH V. Hafiz Mahojied Ali

I. L. R. 10 Calc. 932

44.

Judgment containing find-

ings unnecessary for disposal of ease —

Appellate Court — Dismissal of suit — Findings un-
necessary for disposal of case — Appeal by success-
ful party— Civil Procedure Code, 1882, s. 203.
When a suit has been dismissed on the merits in the
Court of first instance, and that decision is upheld
by the District Judge on appeal, merely on the
ground of non- joinder, the District Judge should not
record any findings in the appellant's favour on the
merits of the case ; and, if he does so, such findings
will, on second appeal to the High Court, be ex-
punged from the record. Nanda Lal Rai v. Bono-
jiALi Lahiry . . I. L. R. 11 Calc. 544

45. Additions to judgment

after delivery — Adding reasons for decision. It is
irregular to add to a judgment once dehvered when
the effect of the addition is to alter the grounds
on which the judgment proceeded. Semble : A
Judge may append to his judgment additional
reasons, merely to show more fully the correctness
of the decision at which he has arrived, though such
a course is not strictly warranted by the Civil Pro-
cedure Code. Snadden v. Todd, Findlay & Co.
7 W. R. 286

46.

Final disposal on settle-
ment of issues — Ornission to take evidence.
Where the Judge finally disposed of the case on the
day fixed for the settlement of issues without allow-
ing the parties the opportunity to adduce evidence
and fully ascertaining the facts : Held, that his
judgment was illegal and defective. Gulzar Shah
V. Mehtab Singh ... 2 Agra 30
47. • Form of judgment on ap-
peal— Judgment not in conformity with law — Dis-
missal of appeal — Civil Procedure Code (Act XIV
of 1882), ss. .551, 574. The lower Appellate
Court, in disposing of an appeal from a decree of the
Munsif, recorded the following judgment: " Suit
laid at Es. -180, value of buffaloes. Apx^eal rejected
under s. 551 of the Civil Procedure Code." Held,
that this was not a judgment in conformity with
law. The dismissal of an appeal under s. 551 of the

JUDGMENT— ron^/.

I. CIVIL CASES— contd.

Civil Procedure Code by a Court whose decision may-
be the subject of an appeal does not relieve the Court
from the necessity of writing a judgment which, ac-
cording tothe pro visions of s. 574 of the Code, should
show the points raised, the decision upon those
jjoints, and the reasons for deciding them. Rami
Deka v. Brojo Nath Saikia

I. L. R. 25 Calc. 97
1 C. W. N. 692

48. Applicability of provisions

as to first appeals— i?ewan(^ — Judgment of first
Appellate Court — Civil Procedure Code, ss. 574,
578. — The judgment of a lower Appellate Court,
after setting forth the claim, the defence, the nature
of the decree of the first Court, and the effect of the
pleas in appeal, concluded, with general observa-
tions, as follows : ' ' The point to be determined on
appeal is whether or not the decision is consistent
with the merits of the case. The Court, having
considered the evidence on the record and the
judgment of the Munsif, which is explicit enough,

concurs with the lower court The finding

arrived at by the Munsif, that the plaintiff's claim
is estabhshed, is correct and consistent with the
evidence. The pleas urged in appeal are therefore
undeserving of consideration. ' ' Held, that this was
in law no judgment at all, inasmuch as it did not
satisfy the reciuirements of s. 574 of the Civil Pro-
cedure Code, and that the decree of the lower Ap-
pellate Court must therefore be set ^.side, and the
record returned to that Court for a proper adjudi-
cation, in accordance with the provisions of that
section. Mahadeo Prasad v. Sarju Prasad, All.
Weel'ly Notes {1886) 171, referred to. Observations
by Mahthood, J., upon the distinction between the
duties of the Courts of first appeal and those of the
Courts of second appeal in connection with the
provisions of ss. 574 and 578 of the Civil Procedure
Code, and with the remand of cases for trial de novo.
Earn Narain v. Bhaivanidin, I. L. R. 9 All. 29
note, and Sheoambar Singh v. Lallu Singh, I. L. R.
9 All. 30 note, referred to. Sohawax v. Babtt
Nand . . . I. L. R. 9 All. 26

49. Judgment of High Court —

Civil Procedure Code, ss. 574, 633 — " Substantial
question of law'' — Contents of judgment — Rules
made by High Court under s. 633 for recording
judgments. The intention of the Legislature as
expressed in s. 633 of the Civil Procedure Code was
that the High Court might frame rules as to how its
judgments should be given, whether orally or in
writins, or according to any mode which might
appear to it best in the interests of justice. The
section does not merely give the High Court power
to direct that judgment shall be recorded in a parti-
cular book or v.'ith a particular seal. Rule 9 of the
rules made under s. 633 in March 1885 is therefore
not ultra vires of the Court, and it modifies the pro-
visions of s. 574 in their appUcation to judgments of
the High Court. With reference to the terms of

( 6947 )

DIGEST OF CASES.

JUDQMENT-^onW.

1. CIVTL CASES— conW.

Rule 9, if is not necessary, in a case where the High
Court substantially adopts the whole judgment of
the Court below, to go through the formality of re-
stating the points at issue, the decision upon each
point, and the reasons for the decision. Per Edge
C. 7.— Apart from Rule 9, it never was intended
that s. 574 of the Code should apply to cases where
the High Court, having heard the judgment of the
■Court below and arguments thereon, comes to the
conclusion that both the judgment and the reasons
which it gives are completely satisfactory, and such
as the High Court itself would have given. Assum-
ing the provisions of s. 574 to be appUcable, a judg-
ment of the High Court stating merely that the
appeal must be dismissed with costs and the judg-
ment of the first Court affirmed, and that it was
unnecessary to say more than that the Court agreed
with the Judge's reasons, is a substantial compli-
ance with those provisions. The judgment of the
High Court, in a first appeal was as follows :" This
appeal must, in my opinion, be dismissed with costs,
and the judgment of the first Court affirmed; and
I do not think it necessary to say more than that we
agree with the Judge's reasons." The appellant
applied for leave to appeal to Her Majesty in Council
on the ground that the requirements of s. 574 of the
Civil Procedure Code had not been compUed with.
Held, by the Full Bench, that the objection involved
no substantial question of law, and that the appli-
cation for leave to appeal must therefore be rejected.

SUNDAK BIBI^l. BiSHESHARNATH I. L. E, 9 All. 93

50. Finding of lower Court

based on misconception of evidence — Defec-
tive judgment on facts — Ground of second appeal.
The finding on an issue of a lower Appellate Court,
which is based on a misconception of what the
evidence is, cannot be accepted in second appeal
as a legal finding on it. Govind v. Vithal

I. L. K. 20 Bom. 753

51 Findings on issues on remand

—Civil Procedure Code, 18S2, ss. 6()6, 569, and 574
— Duty of Appellate Court to form its own, opinion
on the evidence and record reasons for findings —
Procedure. In certifying to the High Court the
findings on issues sent back on remand and found
by the Court of first instance, the lower Appellate
Court is, in the absence of anj' admission by .the
party against whom the issues have been found,
bound to form its own opinion on the evidence and
record its findings with the reasons for them. Ram-
Chandra Govind Manik v. Sono Sadashiv
Sakkhot . . . I. L. R. 19 Bom. 551

52.

Contents

of appellate
judgment— Civil Procedure Code, 1SS2, s. 574—
Duty nj Appellate Court to examine the correctness
of a finding in the absence of a memorandum of
objections. A Judge, having remanded a case for
further evidence to be taken and a fresh finding
recorded on a question of fact, is bound to examine
ihe correctness of the finding and to state in his

JUDGMENT— conW.

1. CIVIL CASES— contd.

judgment the reasons for which he either accepts
or rejects it. Kunhi Marakkar Haji v. Kutti
Umma . . I. L. B,. 20 Mad. 496

53 Date of operation of judg-
ment— Adjournment for written judgment — Death
of party between hearing and judgment — Civil
Procedure Code, 18S2, s. 234^Practice. An
appeal having been argued on the 11th November
1892, the case was adjourned for judgment, which
was delivered on the 30th November 1892, and
was in favour of the plaintiffs. In the meanwhile
the defendant had died. On application for execu-
tion, it was contended that the decree was null and
void, as the respondent was dead when it was
passed. Held, that the judgment should be treated
as operating as if it had been delivered on the day
when the argument was closed. Narna v. Anast
I. L. R. 19 Bom. 807

54. Contents of judgment in

appeal — Civil Proced^ire Code, 18S2, s. 574 —
Duty of Appellate Court to hear appeal after remand
for findings, though no memorandum of objections.
On the hearing of a plaintiff's appeal against an
order dismissing his suit, the District Judge, findina
the issues that had been framed futile, struck then:
all out. substituted others, and remanded the sui1
for findings after evidence had been taken. On the
appeal coming on for hearing after the return o
those findings, neither party having filed anj' ob
jections, the District Judge dismissed the suit on th(
ground that by his failure to file objections, xjlaintif
must be taken to have consented to the new finding:
which were against him. Held, that the Judge wai
not absolved from hearing the appeal by reason o
the absence of a memorandum of objections. Kunh
Marakkar Haji v. Kutti Umma, I. L. Ji. 20 Mad
496. Subbayya v. Rami Reddi

I. L. R. 22 Mad. 34^

55. Judgment of Small Caus(

Court, what should be contained thereii

— Civil Procedure Code, s. 203 — Revision — Civi
Procedure Code, 1882, ss. 562, 622, and 647—Provin
cial Small Cause Court {Act IX of 1887), s. 25.-
S. 20ri of the Code of Civil Procedure does not re
lieve the Judge of a Small Cause Court from th
necessity of giving some indication in his judgmen
that he has understood the facts of the case in Avhic'
such judgment is given. Where a judgment in
Small Cause Court suit stated merely that the sui
was dismissed for reasons given in the Judge's deci
sion in another suit, and the judgment in the suit s
referred to was in the following words : ' ' Claii
for recovery of money lent with interest. Reply
Defendant plcacis that he has paid the debt to th
plaintiff. Issue : Has the defendant paid th
debt claimed to the plaintiff ? Finding : It is nc
proved that the defendant paid the debt to th
plaintiff. Ordered that the claim is decreed wit
costs." Held, that this was in fact no judgment s

( 5949 )

DIGEST OF CASES.

( 5950 )

JUDGMENT— conW.

1. CIVIL CASES— con<d.
(c) Form and Contents of Judgment — concld.
all, and the case must be remanded for re-trial on
the merits under the analogy of s. 562 of the Code of
Civil Procedure, read with s. 647. Manik Rahmat
V. Shiva Prasad . I. L- R- 13 AIL 533

{d) Judgment govebni^ig other Cases.

56. One judgment governing

several cases — Filivg judgntent. Where a judg-
ment iu one case governed other cases : Held, that
the filing of that judgment was a substantial com-
pliance -w-ith the requirements of the law and that
the Cling of a short judgment .eferring to the
other judgment was merely formal and the delay
excusable. Mothooenath Chuckerbctty v. Kis-
sen Mohun Ghose . W B. 1864, Mis. 9

Bhyrubnath Sandyal r. Hure Soonduree
DossEE . . . W. B. 1864, Mis. 28

(e) Construction of Judgment.

57. Inconsistency in portions

ot ia6igva.ent—A7nbiguity. In construing a judg-
ment, if a difficulty is found in reconciling the con-
clusion ultimately arrived at with the previous part
such part must "be rejected. Bykunt Chunder

ChUCKERBUTTY v. DhUNPUT SlNGK

19 W. B. 104

58. Matter omitted in conclu-

JUDGMENT— cowW.

sion arrived at — Former decisions of same
Judge as guides. Where the final sentence in a judg-
ment of the High Court made no mention of a mat-
ter specified in the previous words, and the District
Judge had the option of taking the latter to throw
light on the former, or the former to be controlled by
the latter, he was AeZd to be entitled to follow the
effect of previous judgments delivered by the same
Judge of the High Cour.. Tara Chand Biswas v.
Bam Jeebun Moostaffee • 22 "W. B. 202

59.

(/) Right to copies of.

Bight of parties to copy

■of judgment — Translation- — Parties to a suit are
entitled to receive copies of the original judgment,
not merely a translation. Varjivan Rangji v.
Ali Daji ... 1 Bom. 165

Copies of jh

ment of Courts of Small Causes. Judges of Courts
of Small Causes were bound to give copies of their
judgments to parties requiring them. Ibrahim
Fatte Ali v. Chandra Bhau valad Bapu.ti

7 Bom. A. C. 130

61. Bight of strangers to copy

of judgment. Strangers to a suit may obtain as of
course copies of judgments, decrees, or orders at any
time after they have been passed or made. See
Circular Order, 2nd June 1875. In re Bama Chuen
<Jhosai, . . . 2 C. L. E. 553

I. CIVIL CASES— co«c?f^.
(/) Right to copies of -condd.

Copies of, delay in furnish-

ing—CiV27 Procedure Code, s. 19S~Resolution of
High Court, 6th July 1S72. The plaintiff applied
for the admission of a special appeal, and his applica-
tion M as refused on the ground that the time for the
admission of the appeal had expired. It appeared
that he had appHed tor a copy of the judgment and
decree, but had been refused, as he had not put in a
sufficient quantity of blank papers for copied. On
a])peal to the High Court Held, that the judicial
officer was not justified in delaying the giving of
copies until blank papers were put in. Such
copies, by s. 198 of Act VIII of 18.">9 and a reso-
lution of the Court of 6th July 1872, are to be
issued on production of the necessary stamps.
Nilmoney Sincjh v. Chinibas Mahl-vxti

12 B. L. B. Ap. 8 • 20 W. B. 405

2. CRIMINAL CASES.

1. Illegal judgment—Judgment

■pronounced, by successor — Re-trial. Until the find-
ing is recorded, the trial is incomplete. If before
the finding is recorded the presiding officer of a
Court is removed, the successor cannot pass judg-
ment upon consideration of the evidence recorded
by the predecessor. Anonymous

4 Mad. Ap. 43
Necessity of findings on

each ehSiTge— Criminal Court— Sessions Judge.
.. Sessions Judge should record findings, whether of
conviction or acquittal, on all the charges under
which prisoners are committed for trial. Qceen v.
Mahomed Ali ... 13 W. E. Cr. 50

3. —— To enter up find-

ings on every head of charge is not only not illegal
but the most convenient course. Anoxy.mous

6 Mad. Ap. 47

4. Beasons for decision — Crim-
inal Appellate Court — Judgment in affirming coa-
viction. Althou<rh as a general rule it is not incum-
bent on an Appellate Court when confirming a deci-
sion to set forth its reasons in full, yet in the circum-
stances of a case anything peculiar shou'd be no-
ticed. Reg. v. Moroba Braskarji

8 Bom. Cr. 101

5. Sessions Judges.

Sessions Judges should record their reasons for
confirming, reversing, or modifying the sentences
or orders of the ^Magistrates. Anoxymous

5 Mad. Ap. 12

6. Omission to give

reasons — Criminal Procedure Code {Act X of 1882),
ss. 367-424. A Sessions Judge, after hearing
an appeal, gave the foUo^\■ing judsment : "It is
urged that the evidence is quite untrustworthy, and
that the decision should be reversed. The deposi-
tions have been gone through, and commented on

{ 5951 )

DIGEST OF CASES.

( 5952 )

JUDGMENT— confrf.

2. CRIMINAL CASES— contd.

at considerable length. The Court finds no ground
for interference. The appeal is dismissed." Held,
that this was not a sufficient compliance with ss.
367 and 424 of Act X of 1882, and that the case
should be re-tried. Kajikuddtn T)ai v. Sonatun
MAND.iL . . I. li. E. 11 Calc. 449

7. Reasons for rejecting appeal —

Judgment of Avpellate Court— Criminal Procedure
Code (Act Xof 1882), ss. 367 and 421— Appeal rejected
ivithout any reasons given. An Appellate Court, on
rejectins an appeal under the provisions of s. 421
of the Criminal Procedure Code, need not give its
reasons for the decision. Rash Behari Das v.
Balgopal Singh ■ . I. L. E. 21 Calc. 92

S. Criminal Proce-
dure Code [1882), ss. 367 and 42lSum.mary rejec-
tion of appeal — Beasons for rejection. It is advis-
able that a Court, when rejecting an appeal in a
criminal case under the provisions of s. 421 of the
Code of Criminal Procedure, 1882, should record
shortly its reasons for such rejection in view of the
possibility of such order being challenged by an ap-
plication for revision. Queen-Empress v. Nanhu.
I. L. B. 17 All. 241

Criminal Proce-

dure Code, 1S82, s. 421 — Judgment rejecting an
appeal. In rejecting an appeal under s. 421 of the
Code of Criminal Procedure (Act X of 1882), the
Appellate Court is not bound to write a judgment.
Bash Behari Das v. Balgopal Singh, I. L. B. 21
Calc. 92, followed. Queen-Empress v. Warubai
I. L. R. 20 Bom. 540

10. Judgment not in proper

form — Form and contents of judgment — Criminal
appeal to Magistrate — Criminal Procedure Code,
1882, ss. 367, 424. A Magistrate, hearing an ap-
peal from the Deputy Magistrate, gave the follo^^ ing
judgment : "I see no reason to distrust the find-
ing "of the lower Court. The sentence passed, how-
ever, appears harsh. I reduce the term of im-
prisonment to fifteen days. The fines and terms of
imprisonment in default will stand." Held, follow-
ing the decision in Kumruddin Dai v. Sonatun Man-
dal, I. L. B. 11 Calc. 449, that it was not a judg-
ment within the meaning of ss. .367 and 424 of the
Criminal Procedure Code. In the matter of the peti-
tion of Ram das Maghi . I. L. B. 13 Cale. 110

11. Criminal Proce-

dxire Code, 1882, ss. 367 and 424— Judgment, Con-
tents of — Omission to give reasons. A District
Magistrate, in disposing of an appeal, recorded the
following judgment: " The affray was a faction
fight between members of the two parties into which
the society of Dhunshi seems to be split up. There
is no good ground for doubting the justice of the
Magistrate's finding that the two appellants took
part in the aflfray, and that the party to w hich they
belonged were the aggressors. The appeal is dis-
missed, and the conviction and sentence are con-
firmed." Held, tha,t this Avas not a judgment in

JUDGMENT— conW.

2. CRIMINAL CASES— conid.

accordance with ss. 3fi7 and 424 of the Code of Cri-
minal Procedure (Act X of 1882). In re Shivappa
BIN Shidlingappa . I. Ii. B. 15 Bom. 11

12.

Form and con-

tents cf judgment — Criyninal Procedure Code (Act
X of 1882), ss. 367 and 537. A Sessions Judge, in
disposing of a criminal appeal, recorded the follow-
ing judgment : ' ' The appellants have been con-
victed of breaking into H's house at night, dragged
H's wife to the fields and dishonoured her, though
they did not have intercourse with her. I have
read through the evidence and heard the appellant's
pleader, and I think that the Deputy Magistrate was
quite right to believe the evidence. The sentence
of one year's imprisonment and Rs. 50 fine is not
heavy. I dismiss the appeal." It was contended
that this was not a judgment within the terms of
s. 367 of the Code of Criminal Procedure. Held,
that having regard to the provisions of a. 5.37,
it does not follow that, because the form of a judg^
ment does not exactly comply with all the require-
ments of s. 367, it is not a valid judgment, and that,
as this judgment showed that the Sessions Judge'
had appreciated the point that the prosecution had
to establish, viz., the credibility of the evidence of
the witnesses for the prosecution, and had expressed
his opinion on that point, there being nothing to-
show that any other point was raised before him^
it was not a case in which the High Court should
exercise its revisional powers. Kamruddin Dai v.
Sonatun 3Io7idal, I. L. B. 11 Calc. 449, and In
the matter of the petition of Bam Das Maghi, I.
L. B. 13 Calc. 110, referred to and commented on.
RoHiMtJDDi V. Queen-Empress

I. L. B. 20 Calc. 353

13.

Form and con-

tents of judgment — Criminal appeal, "judgment in
— Criminal Procedure Code, 1882, ss. 367 and 424.
A Deputy Commissioner, after hearing an appeal
from a Deputy IMagistrate who had convicted the
appellants of rioting gave the following judgment :
' ' After hearing the arguments of the pleader for
the appellants and examining the record, 1 am of the
opinion that the lower Court had ample ground for
convicting the accused of rioting. 1 do not consider
the sentence too severe. Appeal dismissed."
Held, that this was not a judgment within the
meaning of ss. 367 and 424 of the Criminal Proce-
dure Code, and that the appeal must be reheard.
Kamruddin Dai v. Sonatun Mandal, I. L. B. 11
Calc. 449, and In the matter of the petition of Bam
Das Maghi, I. L. B. 13 Calc. 110, followed.

r^VKKAX V. SOMSHER MaHOJIED .

I. L. B. 22 Calc. 24L

14. Form of judg-

ment— Criminal Procedure Code, 1882, ss. 367 and
424. On appeal, the Sessions Judge gave the follow-
ing judgment : ' ' After reading the evidence and
hearing the learned counsel for the appellant and
the learned Government pleader, I am convinced

( 5953 )

DIGEST OF CASES.

( 5954 )

JUDGMENT— co?i Id.

2. CRIMINAL CASES— conW.
that the Deputy Magistrate has decided the case
rightly. The appeal is dismissed." Held, that
the judgment was not in accordance with the law
witl.in the meaning of ss. 367 ana 414 of the Crimi-
nal Procedure Code. Gieish M\ie v. Quffn-
I. L. R. 23 Cale. 420

Criminal Proce-

15.

dure Code, 1882, ss. 362, 367, and 424— Judgment
of Appellate Court—What such judgment must
contain. A Magistrate having special powers under
s. 34 of the Code of Criminal Procedure convicted
one P B under ss. 471 and 476 of the Indian Penal
Code, and sentenced him to four years' rigorous
imprisonment. P B appealed to the Sessions Judge
and on that appeal the Sessions Judge recorded
the following judgment : "I have perused the re-
cord, and see no cause for interference with the
finding of the District Magistrate. As regards the
sentence, it is not excessive, but, having regard to
the great age of the appellant, I will reduce it to
three years' rigorous imprisonment with three
month's solitary confinement." Held, that this
judgment M'as in compliance with the provisions
of s. 367 of the Code of Criminal Procedure, read
with s. 424 of the same Code. Qtteen-Empress v.
Pandeh Bhat . . I. L. R. 19 All. 506

16.

Judgment

stereotyped form — Judgment showing consideration
of evidence — Criminal Procedure Code, 1H82,
ss. 367, 424. Where the judgment of a Criminal
Appellate Court is in the nature of a stereotyped one
which might answer for any case, it is not one in
accordance with ss. 367 and 424 of the Criminal
Procedure Code ; but when the judgment, though
not a long and elaborate one, affords a clear indica-
tion that the Court duly considered the evidence, it
is a good judgment and should not be set aside. In
re Shiva ppa, I. L. R. 15 Bom. 11, and Farknn v.
Somsher Mahomed, I. L. R. 22 Calc. 241, distin-
guished. Kasimuddi v. Queen-Eaipress

1 C. W. N. 169

^* Civil suit — Crimi-
nal Procedure Code [Act X of 1882), s. 370 cl. {{)—
Summary procedure-Conviction, Reasons for.
The meaning of s. 370, cl. (i), of Act X of 1882
is that, where the offence found is sufficiently grave
to involve a fine of R200 or imprisonment as the
substantive sentence, the Magistrate is bound to
record his reasons for the conviction, so as to enable
the party to bring the matter up to the High Court ;
but in petty cases which can be met by a fine of a
few rupees, the decision of the Magistrate may be
recorded shortly. A sentence of a fine of Rs. 10,
and imprisonment in default of payment of the fine,
IS not a sentence of imprisonment within the mean-
ing of the section. Moteeram v. Belaseeram

I. L. R. 14 Calc. 174

Queen-Empress v. Shidganda

I. L. R. 18 Bom. 97

Irregularity-

Magistrate passing sentence before finishiiig "his
VOL. III.

JUDGMENT— fOM<ri.

2. CRIMINAL CASES— contd.
judgment— Criminal Procedure Code {Act X of
1882). S3. 3 6, 367, and 637. A Magistrate on a
charge of rioting passed sentence on the accused
without delivering his judgment in open Court,
the judgment (one in course of being written during
the hearing of the case) being in fact not then com-
pleted. The case went on appeal to the Sessions
Judge, who, dealing fully with the evidence takeri
before the Magistrate, confirmed the conviction and
sentence. Held, per Peinsep and Trevelyan, J J.,
that the judgment of tiie Magistrate was not one in
accordance with the law as laid down in s. 366 of the
Criminal Procedure Code : but held by Prinsep and
O'KiNEALY, JJ. (Trevelyan, </., dissenting), that
the irregularity ^^as one contemplated by s. 537 of
the Code, and not having occasioned any failure
of justice, it did not necessitate a re-trial of the case.
Per Trevelyan, J. — The case was more than one of
mere " error, omission, or irregularity " within the
meaning of s. 537 ; the judgment having been irregu-
larly arrived at and pronounced, there was no
" judgment " in accordance with law, and there-
fore no fair trial to which every accused person is
entitled ; the case ought therefore to be re-tried
Damxj Senapati v. Sridhar Rajwar

I. L. R. 21 Calc. 121

19. Criminal Pro-

cedure Code 1882, ss. 366, 367, and 537— Pronounc-
ing sentence before writing judgment — Irregularity.
In this case, after the evidence was adduced on
both sides, the Assistant Magistrate fixed a day for
hearing argument and passing judgment. On that
day argument was heard, and the case adjourned to
another day for judgment, when the Magistrate
pronounced sentence, though he had not wTitten his
judgment. The judgment was, however, wxitten in
the evening of the same day. Held, that the judg-
ment of the Assistant Magistrate was not in ac -urd-
ance with the provisions of ss. 366 and 3G7 of the
Criminal Procedure Code. In the circumstj.ncea
of the case the omission of the Magistrate in re-
cording a judgment before pronouncing his sentence
was an omission or ii-regularity which fell within
the purview ofs. 537 of the Code. The sentence
itself, by reason of this irregularity, was not an ille-
gal sentence so as to render the trial nugatory.
Queen-Empress v. Hargobind Singh, I. L. R. 14
All. .242, and Damu Senapati v. Sridhar Rajwar,
I. L. R. 21 Calc. 121, di.scussed Tilak Chandra
Saekar v. Baisagomoff

I. L. R. 23 Calc. 502

20. Record sent to

Appellate Court — Criminal Procedure Code, 1882,
s. 367, para. 5, proviso— Record of heads of charge
— Judgment in trial by Jury. Held, that the worda
in s. 464. Code of Criminal Procedure, that in trials
by jury " heads "of the Judge's " charge " are to
be recorded, must be construed reasonably, and in-
clude such statement on the part of the Sessions
Judge as will enable the Appellate Court to decide
whether the evidence has been properly laid
before the jury, or whether there has been any"

9 D

( 6955 )

DIGEST OF CASES.

JTJDG MENT— row W.

2. CRIMINAL CASES— confi.

misdirection in the charge. Qheen v. Kasim
Shaikh . . . . 23 W. B. Cr. 32

21.

Summary trial — Criminal Pro-

cedure Code, 189S, .s. 263, cl. (h)— Statement of rea-
sons in judgment — Findings of fact constituting
offence. A judgment in a summary trial must, in
accordance with s. 263, cl. (h), set out a brief state-
ment of the reasons for the conviction, which
include the findings of fact upon which the convic-
tion is based. The proceedings in a summary'
trial must show the reasons for convicting the
accused so that the High Court in revision may
judge whether there are sufficient materials in
support of the conviction. Lalit Mohan Saha v.
Chunder Mohan Roy . 3 C. W. N. 281

22. Comments on conduct and

evidence of police officers — Sessio7is Judges.
For the purposes of a judgment in Sessions trials the
testimony or conduct of police officers concerned
should be scrutinised and commented on in the same
degree as those of other material witnesses, and no
further. Qtteen v- Budbi Roy 23 W. R. Cr. 65

Note added to judgment of

judicial officer in criminal case— /r/Ygr/Znr-

ity. Observations by Stuart, C. J., on the impro-
priety of a judicial officer adding a " note " to his
judgment in a criminal case impugning the correct-
ness of the conclusion he has arrived at on the evi-
dence in such case. Empress v. Chatter Sinrh
I. li. R. 2 All. 33

24. Power to alter judgment —

Rules of High Court, N.-W. P., 18th January 1S98,
rule 83 — Finalitj/ of judgment or order of the High
Court — Poiver of -Judge to alter it. Held, that a
judgment or order of the High Court is not complete
until it is sealed in accordance with Rule 83 of the
Rules of Court of the 18th January 1898, and up
to that time may be altered by the Judge or
Judges concerned therewith without any formal
procedure by way of review of judgment being
taken. Queen- Empress v. Lalit'Tiwari

I. L. R. 21 All. 177

25. Summary dismissal of ap-
peal. Criminal Procedure Code {Act V of I89S),
s. 421. A Court, when dismissing an appeal
summarily under s. 421 of the Code of Criminal Pro-
cedure, is not bound to MTJte a judgment in con-
formity with the provisions of s. 367. King-
Emperor v. Krishnayya (1901)

I. L. R. 25 Mad. 534

26. Judgment of Appellate

Court — Criminal Procedure Code (Act V of
1898), s. 367 — Recording of, when defective —
Deficiency, if can he made wp for by reference to
judgment of Court of first instance — Appeal, proper
trial of— Order for re-trial— Practice. It is the duty
of a Sessions Judge disposing of an appeal to record
a judgment according to law. Where certain per-
sons were convicted of rioting by a Deputy Magis- I

JUD GMEN T— conc/i .

2. CRIMINAL CASES— concZd.

trate, and the Sessions Judge, on appeal, upheld
the conviction, but did not state the facts or the
reasons for his decision in his judgment : Held^
that the judgment was not recorded in accordance
with law, and there was also no proper trial of the
appeal. Also that the deficiency in the judgment
of the Appellate Court could not be made up for by
reference to the judgment of the Deputy Magistrate.
Also that, as it was the duty of the Sessions Judge
to go into the evidence and try the appeal in a pro-
per manner, the case should be remanded to the
Sessions Judge for re-trial of the appeal. Bhot.a
Nath MUI.LICK V. Emperor (1902) 7 C. W. N. 30

27.

Defective judg-

ment— Appellate Court's judgment not supplement-
ary to that of first Court — Criminal Procedure Code
[Act V of 1898), ss. 367, 424— Practice. The judg-
ment of an Appellate Court must show on the face
of it that the case of each accused has been taken
into consideration, and reasons should be given, as
far as may be necessary, to indicate that the Court
has directed judicial attention to the case of each
accused. The Appellate Court's judgment cannot
be read in connection with, an I as supplementary
to, the judgment of the Court of first instance, but
just be quite independent and stand by itself.
Jamait Mullick v. Emperor (1907)

I. L. R. 35 Calc. 138

JUDGMENT IN REM.

See Estoppel — Estoppel by Judgment.

See Evidence— Civil Cases — Decrees,
Judgments, and Proceedings in for-
mer Suits.

1. Decision as to status of par -

tieular person or f&mily— Judgment inter
partes. A judgment is not a judgment in rem be-
cause, in a suit by A for the recovery .of an estate
from B, it has determined generally concerning the
status of a particular person or family ; it is a judg-
ment inter partes. Kattama Nachear v. Rajah
OF Shivagunoah . . . 2 W. R p. C. 31
9 Moo. I. A. 539

Rule making judgments

conclusive — Exceptions to rule. The ri 1j which
makes a judgment conclusive against parties, and
those who claim under them is subj -^ct to certain ex-
ceptions wh'ch are the offspring of positive law, and
the reason of the exception may be generally stated
to be that the nature of the proceedings by which
there is a fictitious, though not unjust, extension of
parties renders it proper to use the judgment
against those not formally parties. The rule as to
judgments in rem, except in some peculiar cases,
results from the nature of the proceedings ; and
before attempting to apply the rule in this country,
consideration should be given to the question whe-
ther there are Courts so proceeding as to warrant
the application of the doctrine of decrees in rem.
Mr. Smith's definition of a judgment in rem dis-

( 5957

DIGEST OF CASES.

( 6968 )

JUDGMENT IN KEM— cow<J.

cussed and dissented from, and the authorities in
English and Roman law upon the subject examined
and commented upon. Yarakalamma r. Anakala
Naramma ... .2 Mad. 276

3. Judgments of mofussil

■Courts — High Court — Evidence. In a suit by R C
against D, the widow of R N, to set aside aliena-
tions by /> and to establish his title as reversionary
heir to'the property left by R N on the ground that
R N had been adopted by J L, deceased, and that,
on the death oi R N ^\ithout issue, the right accrued
to i? (7 as an agnate of J L, it was found that R N
had been adopted by J L, and that R 0 was rever •
sionary heir. In a subsequent suit hy K L against
BCiora, declaration of his right as heir to R N and
for possession of the property on the ground that
R N hal not been adopted by, but took the pro-
perty by gift from, J L; — Held, th&t the judgment
in the former suit was not admissible in evidence on
the question of the adoption. Semble : There are
no judgments in rem in the mofussil Courts ; and,
as a general rule, decrees in those Courts are not
admissible against strangers, to prove the truth of
any matter directly or indirectly determined by the
judgment, or by the finding upon any issue raised
in the suit, whether relating to status, propertj-,
or any other matter. Kanhya Lall v. Radha
Churn B, L. R. Sup. Vol. 662

2 Ind. Jur. N. S. 229 : 7 W. R. 338

4. Decision as to disputed suc-
cession to Raj — Foiver of Courts to give judgment
in rein. In a case of disputed succession to a raj. A,
one son of the Raja, deceased, was put into posses-
sion under Act XIX of 1841, and a suit brought
against him on behalf of another infant son, B,
failed on pi'oof of the legitimacy of ^. A third son,
€, now claimed to be entitled against A's son, on the
ground that A was illegitimate or was the offspring
of an inferior marriage. Held, that the decree in the
former suit was not a bar to the further prosecution
of this suit, nor would it have been had the issues
in the two suits been precisely the same. Quare :
Does there exist in India (exclusive of the particu-
lar jurisdictions which are exercised by the High
Court? in matters of probate and the like, and
which in the case of war might be exercised in
matters cf prize) any Court capable of giving a judg-
ment in rem ? Jogendro Deb Roy Kut v. Fu-
NIN0RO Deb Roy Kut

11 B. li. R. 244 : 17 W. R 104
14 Moo. I. A. 367

5. Decree declaring deed to be

forged — Evidence. The plauititf sued to set aside
a decree which had been obtained against a co-
sharer on a mokurari pottah. The decree which de-
clared the pottah to be a forgery was in a suit to
which the plaintiff was no party. Held, that the
decree did not operate as a judgment in rem.
Gxjngadhur Roy v. Wooma Soonderee Dossee

B. li. R. Sup. Vol. 672
2 Ind. Jur. N. S. 120 : 7 W. R. 347

JUDGMENT IN REM— concW.

See Lala Ranglal v. Deonabayan Te-
WARY . . 6 B. L. R. 60 : 14 W. R. 201

6. — Decision on question of

adoption. The full Bench decision in B. L. R. Sup.
Vol. 622 ; 2 Ind. Jur. N. S. 229 : 7 W. R. 338,
merely laid down that a decision in a suit inter alias
relating to a question of adoption was not a judg-
ment in rem and was not conclusive ; and that a
judgment or order in a suit inter partes, in which it
had been found that the plaintiff had been adopted,
could not be u^ed at all as evidence of th3 fact of
adoption in a suit inter alias. It only spoke of
decrees or judgments inter alias, and never in-
tended to speak of the admissibility or inadmissi-
bility of thakbust maps or other similar surveys
as to whether they would or would not be evidence
against persons who were not parties to them.
MoTEE Lall v. Bhoop Singh

2 Ind. Jur. N. S. 245 : 8 W. R. 64

JUDGMENT-DEBT.

See Contract Act, s. 25.

I. L, R. 3 All. 781
I. li. R. 14 Bom. 390

agreement to give time for

satisfaction of—

See Civil Procedure Code, 1882, s. 257A.
I. L. R. 26 Mad. 19

JDDGMENT-DEBTOR.

See Arrest — Civil Arrest.
See Attachment — Attachment of Per-
son.
See Bengal Tenancy Act, s. 174.

I. L. R. 15 Calc. 482
See Civil Procedure Code, 1882, ss. 295,

313, 331, 351.
See Civil Procedure Code, 1882 s. 244.
10 O. W. N. 240

See Imprisonment.

I. Ii. R. 13 Mad. 141

See Insolvency — Insolvent Debtors

UNDER Civil Procedure Code.

See Limitation Act, 1877. Sch. II. Art. 11.

I. Ii. R. 1 Mad. 391

I. L. R. 11 Bom. 45 ; 114

I. Ij. R. 15 Calc. 674

I. L. R. 17 Bom. 629

I. Ii. R. 22 Bom. 875

See Occupancy Holding.

I. Ii. R. 34 Calc. 199

See Right of Suit— Execution of
Decree.

I. L. R. 15 Calc. 437 ; 674
I. L. R. 23 Mad. 195
I. L. R. 10 All. 479
See Warrant of Arrest— Civil Cases.

I. Ii. R. 26 Mad. 120

9 d2

( 5959 )

DIGEST OF CASES.

( 5960

JUDGMENT -DEBTOR— CG«fi.

See Wbongful Confinement.

I. L. R. 30 Mad. 179
death of—

See Civil Procedure Code, 1882, s. 108.

I. L. R. 29 Gale. 33

I. Ii. R. 21 All. 274

See Civil Procedure Code, 1882, s. 244^

Parties to Sutts.

I. L. R. 10 All. 479

I. L. R 24 Caxc. 62

I. L. R. 16 Ail. £86

I. L. R. 19 All. 332

See Civil Procedure Code, 1882, s. 244 —

Questions in Execution of Decree,

I. L. R. 17 All. 431

See Execution of Decree — Execution

BY AND AGAINST REPRESENTATIVES.

See Limitation Act, Art. 179 — Nature
OF Application- — Irregular and De-
fective Applications.

I. L. R. 19 All. 337

See Representative of Deceased
Person.

See Sale tn Execution of Decree —
Invalid Sales — Death of Judgment-
debtor before Sale.

See Surety — Liability of Surety.

I. L. R. 24 Mad. 637

deposit of money by —

See Sale in Execution of Decree-
Distribution of Sale-proceeds.

I. L. R. 30 Calc. 262

discliarge of^

See Attachment — Attachment of Per-
son . . . Bourke O. C. 109
5 N. W. 220
I. L. E. 6 Mad. 170
I. L. R. 8 Mad. 21 ; 276 ; 503
I. L. R. 12 Bom. 46
I. L. R, 11 Gale. 527
I. L. R. 20 Calc. 874

See Civil Procedure Codk, 188"2. s. 341.

I. L. R. 9 Bom. 181

I. L. R. 8 Mad. 21

See Insolvency — Insolvent Debtors

under Civil Procedure Code.
See Subsistence -money.

insanity of—

See Sale m Execution of Decree — Set-
ting ASIDE Sale — Irregularity.

I. L. R. 16 Mad. 219

_ representative of—

See Civil Procedure Code, 1882, s.
244 — Parties to Suit.

See Representative of Deceased Per-
son.

JUDGMENT DEBTOR— conc/rf.

Civil Procedure Codef.

ss. 244, 331— Defendants not joining in compromise
on which decree is passed not judgment-debtors — S..
331 applies to such defendants. Where a decree
passed on compromise entered into between
the plaintiff and some of several defendants
in a suit does not adjudicate on the rights of the
defendants who have not joined in the compro-
mise, such defendants are not judgment-debtors
and any disputes arising in execution of the
decree between the plaintiff and such defendants
must be decided under s. 331 and not under s. 244 of
the Code of Civil Procedure. Vihhudapriya
ThirtJiaswami v. V idiariidhi Thirthaswami, I. L. R.
22 Mad. 131, doubted. Jathavedan Nambx^diri
V. KuNCHU Achan (1906) I. L. R. 30 Mad. 72.

JUDIGATURE AGT, 1873 (36 & 37 VIGT.
G. 66).

s. 100—

See Practice . I. L. R. 32 Bom. 599
JUDIGIAL AGT.

See Judicial Officers, liabu.ity of. -
JUDIGIAL GOMMISSIONER.

Power of — False evidence —

Criminal Proceaare Code (Act XX V of 1S61 ), s. 172.
A Judicial Commissioner has no power, under s. 172
of the Code of Criminal Procedure, to commit a
witness for a false deposition given before the Assist-
ant Commissioner. Queen v. Mati Khowa

3 B. Ii. R. A. Or. 36 : 12 W. R. Gr. 31

JUDICIAL GOMMISSIONER, ASSAM.

Jurisdiction of ^ Act XL of 1858 —

Succession Act {X of jdti-:)), s. z35. A.-'sam does not
come within the definition of a provi ce, but of a
district, for the piu'poses of Act X of 1865 ; and the
jurisdiction in granting probates and letters of ad-
ministration under s. 235 of that Act is vested not in
the uepuiy Commissioner, bui in the Juuiciu. Com-
missioner. The Court of the Judicial Commissioner,
not of the Deputy Commissioner, is the principal
Court of original civil jm-isdiction in Assam, and the
Judicial Commissioner is the officer to whom, under
Act XL of 1858, the charge of minors and their
property is committed. Kristo Surma Adhikaree
V. Basoodeb Gossamee . . 12 "W. R. 424

JUDIGIAL GOMMISSIONER, OUDH.

See Oudh Courts Act, s. 8.

5 C. W. N. 781

JUDICIAL COMMISSIONER, PUNJAB-
circular orders passed by —

See Indian Councils Act.

12, B. L. R. P. C. 167

JUDICIAL DECISIONS.

See Hindu Law — Custom — Genetjally.
I. L. R. 16 All. 379

( 5961

DIGEST OF CASES.

( 5962 )

JUDICIAL DISCRETION.

.SVe Discretion of Couet.

JUDICIAL NOTICE.

See Accused Person , 5 C. W. N. 110
See Civil Procedure Code. 1882, s. 87.

4 B. L. R. O. C. 51
See Evidence Act fl of 1872), s. 57.

I. L. R. 14 Calc. 176
See Religion, offences relating to.

I. L. R. 7 All. 461

. Justice of the Peace — Case sent

up to High Court. Where R had tried a ease and
sent it up to the High Court, but it did not appear
whether he had done so in his capacity of a Magis-
trate or of a Justice of the Peace : — Semble : The
High Court was bound to take judicial notice that R
was a Justice of the Peace for Bengal. Queen v.
Nabadwip Coswami

1 B. L. R. O. Cr. 15 : 15 W. R. Cr. 71 note

JUDICIAL OFFICER.

See Bengal Tenancy Act, s. 153.

I. L. R. 15 Calc. 327
See False Evidence — Generally.

I. L. R. 27 Calc. 820
-See Judicial Officers, liability of.
See JuDiCLiL Officers' Protection Act.
Charge by, for executing com-

mission.

See Commission — Civil Cases.

12 B. L. R. Ap. 4

Land Acquisition Collector is

not —

See Land Acquisition Act (I of 1894).

I. L. R. 30 Calc. 36

— on tour —

»See Judicial Officers' Protection Act
(XVIII OF 1850).

I. L. R. 30 Bom. 241

— transfer of—

See Magistrate, jurisdiction of —
Transfer of Magistrate during
Trial.

JUDICIAL OrnCERS, INABILITY OP.

1. Protection ■while exercising

judicial functions ^7«Y. 21 Geo. Ill, c. 70,
s. 24—'rr('<i>ass, action of. The 21st Geo. Ill,
c. 70. s. 24. protecting Provincial Magistrates in
India from actions for any wrong or injury done by
them in tlie exercise of their judicial ofliccs. does not
confer unlimited protection, but places them on the
same footing as those of English Courts of a similar
jurisdiction, and onlj' gives them an exemption from
liabilitj' when acting bond fide in cases in which they
have mistakenly acted without jurisdiction. Tres-
pass will not lie against a Judge for acting judicially
ibut without jurisdiction, unless he knew, or had the

JUDICIAL OFFICERS, LIABILITY OF
— contd.

means of knowing, of the defect of jurisdiction, and
it lies upon the plaintifi in every such case to prove
that fact. Calder v. Halket

2 Moo. I. A. 293

2. _ _ Act XVIII of 1850— Person

acting within limits of his jurisdiction — Bond fides.
Under the provisions of s. 1 of Act XVIII of 1850 ,
no person acting judicially is liable for an act done
or ordered to be done by him in the discharge of
his judicial duty M'ithin the limits of his jurisdiction.
In such a case the question whether he acted in good
faith does not arise. Meghraj v. Zakir Husain

I. L. R. 1 All. 280

3. Acts done in good

faith — Pleading. Act XVIII of 1850 does not pro-
tect judicial officers from being sued in a Civil Court
except in respect of acts done by them in good faith
in the discharge of their judicial functions. Wlien a
plaint is presented to a Judge against such an officer,
which complains of a \\Tongful action on the part of
that officer, the Judge is bound to receive the plaint
and to leave it to the defendant to plead Act XVIII
of 1850. Venkat Sheinivas v. Armstrong

3 Bom. A. C. 47

4. Criminal Proce-
dure Code, 1S61, ss. 68, 212— Liability of Magis-
trate. Held, that neither Act XVIII of 1850 nor
ss. 68 and 212 of the Code of Criminal Procedure,
1861, protected a Magistrate who had failed to
act reasonably, carefully, and circumspectly in the
discharge of his duties. Vina yak Divakar v. Bai
Itcha .... 3 Bom. A. C. 36

5. Liability of public

servant for injury done by his act, illegal though bond
fide — Protection of judicial officers — Cantonments
Act {XXII of 1864), s. 11— Lunatic Asylums Act
{XXXVI of 1858), s. 4. Act XVIIF of 1850 is for
the protection of judicial officers acting judicially,
and of officers acting under their orders. An officer
commanding in cantonments, acting bond fide in
the discharge of his public duty, and under the belief
that a person was dangerous by reason of insanity,
caused him to be arrested in order that he might be
examined by medical officers, and caused him to be
detained in his house for that purpose, he not being
a dangerous lunatic. The medical officers, while
reporting him sane, recommended that he should be
placed under the observation of the civil siu-geon of
the station,for w hich purpose the same officer caused
his further detention. The commanding officer,
who, under Act XXll of 1864, s. 11, had control and
dii-ection of the police in the cantonment, did not
proceed, or intend to proceed, under s. 4 of Act
XXXVI of 1858. Hdd, that, although his belief
might have justified the commanding officer, if he
had proccedetl under the provisions last mentioned,
yet he not having done so, and not having any legal
authority for what he had done, was not protected
from liabilitj' in respect of the above acts. Sinclair
V. Broughton

L L. R. 9 Calc. 341 : 13 C. L. R. 185
L. R. 9 1. A. 152

( 5963 )

DIGEST OF CASES.

( 5964 )

JUDICIAL OPFICEES, LIABILITY OF

— conid.

6. Liability of Muni-
cipal Covimissioner sitting as Magistrate under
Beng. Act III of 1864. A Municipal Commissioner
invested with the powers of a Magistrate under
Bengal Act III of 1864 is protected by Act XVIII of
1850 in respect of every act done by him in such
capacity judicially ; and so long as he acts within
his jurisdiction, and in good faith, no action for
damages wiU lie against him in a Small Cause Court.
Halimoozzumah v. Municipal Commissioners op
HooGHLY . . . . 13 "W. R. 340

Collector of Sea

Cuslcyms at Madras — Imposition of fine without
jurisdiction — Bond fide belief. The defendant, Mho
was Collector of Sea Customs at Madras, professing
to act under the 24th section of Act VI of 1863,
imposed a fine on the plaintiff, over whom he had no
jurisdiction, and seized the property of the plaintiff,
with a view to realizing such fine. Held, on a con-
sideration of all the circumstances of the case, that
the belief of the defendant that he had jurisdiction
was not bond fide, and that accordingly he was not
protected by Act XVIII of 1850. Collector of
Sea Customs v. Punniar Chithambaram

I. L. R. 1 Mad. 89

Judicial

act

within the limits of the officer's jurisdiction — Such act
protected, though done erroneously, illegally or not
in good faith — " Jurisdiction '''■^Magistrate, juris-
diction of. Under Act XVIII of 1850, where an act
done or ordered to be done by a judicial officer in the
discharge of his judicial duties is within the limits of
his jurisdiction, he is protected whether or not he has
discharged those duties erroneously, irregularly, or
even illegally, or without believing in good faith that
he had jurisdiction to do the act complained of.
Where the act done or ordered to be done in the
discharge of judicial duties is without the limits of
the officer's jiu-isdiction, he is protected if, at the
time of doing or ordering it, he in good faith believed
himself to have jurisdiction to do or order it. The
word '* jurisdiction " is used in Act XVIII of 1850
in the sense in which it was used by the Privv Council
in Calder v. Hall:et, 2 Moo. I. A. 293. It means
authority or power to act in a matter, and not
authority or power to do an act in a particular
manner or form. A judicial officer who in the
discharge of his judicial duties issues a warrant
which he has authority to issue, though the parti-
cular form or manner in which he issues it is contrary
to la\\-, acts within, and not -without, the limits of
his jurisdiction in this sense. Where a Magistrate
of the first class, having sentenced an accused person
to three years' rigorous imprisonment and 11500
fine under ss. 379 and 411 of the Penal Code, and
having issued a warrant, purporting to act under
s. 386. of the Criminal Procedure Code, for the
levy of the fine by distress and sale of cattle belong-
ing to the accused, sold such cattle before the date
fixed for the sale, and in contravention of form
37, sch. V and s. 554 of the Code, and form D in ch.
V of the circular orders of the High Court : Held,

JUDICIAL OmCERS, LIABILITY OP

— contd.

that he was acting in the discharge of his judicial
duty within his jurisdiction as a Magistrate of the
first class ; that under such circumstances it was
immaterial that he did not in good faith believe
himself to have jurisdiction to sell the property in.
the manner he did ; and that the fact that he acted
with gross and culpable irregularity did not deprive
him of the protection afforded by Act XVIII of
1850. 1 EVEN V. Ram Lall I. L. R. 12 All. 115-

Liability of Ma-

gistrate— Conviction of servant for misbehaviour —
Bom. Reg. I of 1814— Act II of 1839. Held, that
an action of trespass for false imprisonment lay
against a Magistrate who proceeded \\-ithout juris-
diction to convict a tailor, charged before him under
Bombay Rule, Ordinance, and Regulation I of 1814^
for misbehaviour as a domestic servant, there being
no information or evidence on oath of the ofience
charged as required by the Regulation, as well as by
Act II of 1839, and the plaintiff not being a domestic
servant, or any servant within the scope of the
Regulation ; and when called upon to plead,
having stated that he left the service because there '
were wages due to him from his employer, upon
which statement he was convicted, without any-
proper investigation into the truth of it. Held, also,
that the Magistrate, who failed to act reasc>nably,
carefully, and circumspectly, cannot be said to hav&
in good faith believed himself to have jurisdiction
within the meaning of Act XVIII of 1850, and con-
sequently that he cannot claim the protection of
that Actin an action brought against him in a Civil
Court. Vithoba Malhari v. CorfIeld

3 Bom. Ap. 1

10.

Order made by

Political Agent in his executive capacity. In a suit
brought in the High Court, Bombay, by the Hindu
inhabitants of Mahalingpore, a village in the territo-
ries of the Chief of Modhool, against the Political
Agent at the Court of Modhool, for damages for in-
jury done to them by certain orders made by him
which affected their caste, the plaint stated that the
defendant, at the time the orders were made, exer-
cised exclusive civil jurisdiction throughout the
territories of the Chief of Modhool, and that the
Court of the defendant was a Covut subject to the
superintendence of the High Court at Bombay ; and
that the orders complained of were made by him as
Political Agent and in his executive capacity. Held,
that there ■« as no cause of action, whether the acts
were done by the defendant as Political Agent or in
his judicial and magisterial capacity. Inhabitants
of Mahalinotore v. Andersok

7 B. L. R. 452 note

11. E( fusing bail,

liability of Magistrate to action for. The refusing
or accepting of bail is a ju<licial. not merely a min-
isterial, duty, and a mistake in the performance
of that tlut\- by Magistrate without malice ^^ill not
be sufficient to sustain an action. Parankusam
Nabasya Pantulu v. Stuabt . 2 Mad. 396

( 5965 )

DIGEST OF CASES.

JUDICIAL OFFICERS, LIABILITY OF

— contd.

12.

Liability of

Magistrate— Delay in tryivg prisoners— Power to
adjourn case. A Deputy Magistrate, A\ho without
reason causes delay in prcceeding with the trial of
persons whom he Icceps in jail, is liable, notwth-
standing Act XVIII of 1850, to an action for
damages if the prisoners are eventually acquitted.
By s. 22 of the Code of Criminal Procedure, a Magis-
trate may, by a written order from time to time,
adjourn an enquiry for a period not exceeding
fifteen days. Queen v. Shahon

11 W. B. Cr. 19

13. . llleyal arrest

when acting bond fide — Liability of public officer.
Where the defendant, a commanding officer of a
regiment had unlaw fully caused the plaintiff, a con-
tractor, to be arrested and kept in confinement on
the reasonable suspicion of fraud entertained against
him, believing himself to be lawfully possessed of the
authority to do so, and did not act in malice or con-
scious violation of the law, nor for the furtherance of
any unlawful purpose, but failed to establish the
fraud imputed -.—Held, that the plaintiff under the
circumstances was entitled to substantial damages.
Patton v. Hueee Ram . . 3 Agra 409

14. — Improper proce-
dure of Magistrate. The Magistrate of a district
issued an order under s. 308 of the Criminal Proce-
dure Code, ) 861, calling on the petitioner to remove
a building, on the ground that it Mas an unlawful
obstruction in a highway. A jury of five persons,
though without any instructions and differing in
their views as to the proper performance of their
duties, found, after the time for their report had ex-
pired, that the building was not on the high road at
all. Five days after, the Magistrate issued another
order requiring the petitioner to pull down the house
within 15 days, as the report of the jurors had not
been made Mithin the time prescribed. The peti-
tioner showed cause under s. 313, but without effect,
and the order was repeated. The Sessions Judge
meanwhile upon application of the petitioner, called
for the proceedings under p. 434 ; but the Magistrate
■wrote questioning the Judge's authority to interfere,
and without waiimg tor the reply proceeded to try
the petitioner for disobedience to an order duly
promulgated by a public servant, and sentenced him
to 25 days' imprisonment under s. 188 of the Penal
Code. His house was also pulled down. The pro-
ceedings were ultimately forwarded to the Sessions
Judge, whose successor in office returned them with
the remark that nothing appeared to have been done
contrary to the law for the removal of local nui-
sances, Qnmre : Whether Act XVIII of 1850 would
protect a Magistrate in such a case from being sued
for damages. Reg. v. Dalsukram Haribhai

2 Bom. 437 : 2nd Ed. 384

15. — Liability c/

Magistrate— Illegal order under s. SOS of Criminal
Procedure Code, 1861. A Magistrate who makes an
illegal order, which purports to be made under s. 308
of Act XXV of 1861, but is not made in accordance

JUDICIAL OFFICERS, LIABILITY OF

— contd.
with the provisions of that section, is lialile to be
sued in the Civil Court in respect of such order, and
to be restrained by injunction from carrying it into
effect. AsHBURNER V. Keshav valad Tuku
Paxil .... 4 Bom. A, C. 150

16. Liability of Ma-
gistrate— Officer acting without jurisdiction. Suit to
recover damages from defendant. Deputy Magistrate
of the Zillah of Trichinopoly, for a trespass alleged
to have been committed in execution of an order
made by him under s. 311 of the Criminal Procedure
Code, directing the demolition of the plaintiff's
house, as being a nuisance to a pubhc thoroughfare.
Defendant denied his liability, alleging in justifica-
tion of his order that he believed the house to be ob-
structive to public comfort, and proceeded in accord-
ance with ss. 308, 310, and 311 of the Criminal Pro-
cedui-e Code, 1861, and that, ha'nng acted in good
faith in discharge of his duties as a Magistrate, he
was protected by Act XVIII of 1850. The issues
settled were (1) whether the house was an obstruc-
tion and nuisance within s. 308 of the Criminal Pro-
cedure Code ; (2) whether the defendant acted in
good faith in the discharge of his public duty in
ordering the removal of the house ; (3) whether the
plaintiff was entitled to the amount of damages
claimed. The Civil Judge held upon the first issue
that the defendant had no jurisdiction to order the
removal of the house ; upon the second issue that
defendant had not acted with due care and attention
but from feehngs of personal animosity towards
plaintiff, and was therefore not protected by Act
XVIII of 1850 ; upon the third issue he assessed the
damages at R500. The defendant appealed, rel3,'ing
mainly upon the objection that no action lay against
him, inasmuch as, first, it had not been shown that
be acted without jurisdiction in making the order
complained of ; and, secondly, that even if he had
acted without jurisdiction, he acted believing at the
time with good faith that he had jurisdiction, and
was therefore entitled to the jirotection given by Act
XVIII of 1850. Held, upon the first point that an
entire absence of jurisdiction to make the order had
been shown ; upon the second point, that the facts
of the case furnished no reasonable or probable
ground for belief in the existence of jurisdiction by a
Magistrate of ordinary qualifications ; that the
defendant must therefore be held not to have
entertained that behef in good faith, unless the pro-
visions of the Criminal Procedure Code, under which
he acted, admit of the view that he might, not un-
reasonably, think that it was probably intended to
apply to such an annoyance as that complained of ;
that, however, these provisions were open to such a
misunderstanding and misapplication by a Magis-
trate of ordinary qualifications, and consequently
that the suit should be dismissed. Ragunada Rau
V. Nathdmani Thathamayyanqar

6 Mad. 423

17.

Liability of Ma-

gistrate to damages for illegal order made under
s. 308, Criminal Procedure Code, ISdl. The first
defendant, acting as a Magistrate, ordered the

( 5967 )

DIGEST OF CASES.

( 5968 )

JUDICIAL OFFICERS, LIABILITY OF

— contd.

removalof the plaintiff's house under s. 308 of the
Criminal Procedure Code, upon the ground that it
was a nuisance and obstructive to the public tho-
roughfare. Held, that the house was neither an
obstruction nor a nuisance, and that the first
defendant had no jurisdiction to direct its removal,
but the first defendant having acted in his judicial
capacit}', and in good faith believed himself at the
time to have jurisdiction, a suit for damages could
not be maintained against him. Seshayiyangar
V. RuGHUNATHA Row . . 5 Mad. 345

18. Liability of Ma-
gistrate— Order under Criminal Procedure Code
{Act XXr of 78 i ), Ch. XX, ss. 02, 308. The
plaintiff sued a Magistrate for damage occasioned to
him by the cutting of his bund at the Magistrate's
order. The Magistrate raised the defence that he
was protected by Act XVIII of 1 850 for all acts done
by him bond fide in his magisterial capacity. Held,
on the facts, that the Magistrate was liable. Act
XVIII of 1850 does not protect a Magistrate who
has not acted with due care and attention. The
mere absence of tyiala fides is no defence. A Magis-
trate cannot be said to have " in good faith "
believed himself to have jurisdiction to do or order
the act complained of, unless he in arriving at that
belief acted reasonabl}', circumspectly^ and care-
full3^ A Magistrate would not be personally liable
for an act done by him under a misconstruction or
misinterpretation of the law, if his proceedings were
in other respects regular, and if the misconstruction
or misrepresentation were one which might have
been put upon the law by a reasonable man, acting
with ordinarj^ care and attention. But a Magistrate
is not protected by saying he misconstrued the
law, unless his proceedings have been in other
respects regular, and the view of the law ta ken by
him is such as a reasonable and careful man might
take. Neither s. 62 nor Ch. XX of the Criminal
Procedure Code authorizes a Magistrate to dispose of
the property of others at liis mere will and pleasure,
or without his having distinct and legal grounds for
the course he takes. When a Magistrate violates
the plain language of the law and the very first
principles of judicial enquiry, his proceedings
presun ably are c) aracterized by want of care.
Takaknath Mookhopadhya v. Collector of
HooGHLY .4 B. L. R. A. C. 37 : 13 W. R. 13

In the same case on review the lower Appellate
Court found, as a fact, that the Magistrate proceed-
ed under Ch. XX of the Criminal Procedure Code ;
that he called on the plaintiff to show cause, and did
hold an enquiry through the police. The High
Court, in special apjjeal, accepting the fact as found
by the lower Court, held that the Magistrate was
acting judicialhr and with jurisdiction (though
under the circum-stances disclosed carelessly and
irregularly), and was therefore protected from an
action for damages. A proceeding under Ch. XX of
the Criminal Procedure Code, if regular and such as
the law prescribes, is a judicial proceeding ; but a
Magistrate docs not act legall3' under it if he does
not first call on the person with whose property he

JUDICIAL OFFICERS, LIABILITY OP

—cjucld.

proposes to interfere to appear and show cause.
Collector of Hooghly v. Taraknath Mukho-
padhya . 7 B. L. R. 449 : 16 W. R. 63

19. Judicial act —

Eight of suit — Liability of Magistrate — Beng. Act
VI of 8 8, .sc/t. K. The removal by a Magistrate of
an obstruction in the exercise of the powers confeixed
upon him by Sch. K, cl. 1, of Bengal Act VI of
1868 is not a judicial act; and the Magistrate is
therefore not protected by Act XVIII of 1850 from
a suit in the Civil Court to try the question of the
right of the person against whom the order was
made to create the obstruction and for damages.
Chunder Nakain Sixgh v. Br 'JO Bullub Gooyee
14 B. L. R. 254 : 21 W. R. 391

Affirming decision in Chunder Narain Sing r>.
Brojo Bullub Gooyee . . 21 W. R, 126

20. • Abuse of his

authority by Judge. Wilful abuse of his authority
by a Judge — that is, wilfully acting beyond his juris-
diction— is a good cause of action by the party who
is injured. Ammiappa Mudali v. Mahomed
Mustafa Saib .... 2 Mad. 443

JUDICIAL OFFICERS' PROTECTION
ACT (XVIII OF 1850).

See Judicial Officers, liability' of.
-See Tort . . 12 C. W. N. 973

Civil Procedure

Code (Act XIV of 1882), s. 199— Suit against a
Magistrate to recover damages — Judgment xcritten by
a Judge after his transfer — Proceedings before a
Magistrate for arrears of Municipal revenue — Juris-
diction— Protection afforded to judicial officers —
Public policy — Judicial officers on tour. To secure
protection under the Judicial Officer's Protection
Act (XVIII of 1850) the defendant must show that,
1st, the act complained of was done, or ordered by
him in the discharge of his judicial duty ; and, 2nd,
that it was within the limits of his jurisdiction, or if
not within those limits, that he, at the time, in good
faith believed himself to have jurisdiction to do and
order the acts comjjlained of. In a suit against a
Magistrate to recover damages for injury to the
plaintiff on account of the highly arbitrary, spiteful
and illegal conduct of the defendant — the conduct
being in the course of proceedings instituted by a
Municipality against the plaintiff before the defend-
ant as Magistrate for the recovery of arrears of
house tax — the plaintiff contended that the defend-
ant had no jurisdiction to entertain the proceed-
ings because the arrears were paid before the pro-
ceedings were commenced. i/eW, that the case was
one which the Magistrate was competent to entertain
and none the less becau e in the result it might
appear that there was notliing due. Jurisdiction
for the purpose in hand rested, not on the proof
adduced in support of the charge, but on the nature
of the charge actually made. The protection
afforded to judicial officers rests on jiubhc policy.
And although thereby a malicious Judge or Magis-

( 5969 )

DIGEST OF CASES.

( 5970 )

JTJDICIAIi OFFICERS' PROTECTION
ACT (XVIII OF 1850)-co„cld.

trate may gain a protection designed not for him,
but in tlie public interest, it does not follow that he
can exercise his maUce with impunity. His con-
duct can be investigated elsewhere and d le punish-
ment awarded. Judicial ofhcers, whose official
movements may leave them open to the charge that
they wilfully compel parties, who appear before
them, to follow the movements of their camp,
should strive to exercise their powers with such con-
sideration for such parties as will secure them from
any imputation of misconduct in this respect. GiR-

JASHANKAR V. GOPALJI (1905)

I. L. R. 30 Bom. 241

JUDICIAL PROCEEDING.

See Bombay District Municipal Act,
1873, s. 84 . I. L. R. 17 Bom. 731

See CAtrsE OF Action 10 C. W. N". 107
See Civil Procedure Code, 1882, s. 2.

I. L. R. 2 Bom. 553
See Complaint . I. L. R. 36 Calc. "t 2

See Criminal Procedure Code, s. 4 (m).

I. L. R. 28 All. 89

See Criminal Procedure Code, s. 176

(1872, s. 135) . I. L. R. 3 Calc. 742

See Criminal Procedure Code, ss. 195,

364 and 476 . 9 C. W. N. 1030

See Criminal Procedure Code, s. 476.

7 C. W. N. 423
See Criminal Procedure Codes, s. 487.
10 Bom. 73
18 W. R. Cr. 15
I. L. R. 16 Calc. 121 ; 766
I. L. R. 20 Mad. 283
I. L R. 14 All 354
I. L. R. 27 Calc. 452
See False Evidence —
General Cases :
Fabricating False Evidence.

I. L. R. 28 Caic. 348

See Land Acquisition Act. (I of 1 894) ss.

6, 11, 12, 40 . I. Ii. R. 32 Calc. 605

See Penal Code, ss. 191 and 19.'^, cl. (2).

9 C. W. N. 127

See Reformatory Schools Act, s. 8.

I. L. R. 14 Bom. 381
See Sanction for Prosecution — Power
to grant Sanction.

I.L. R. 19Mad. 18
I. Ii. R. 27 Calc. 452
proceeding before Land Acquisi-
tion Collector is not —

See Land Acquisition Act (I of 1894'>.

I. L. R. 30 Calc! 36

— revision of —

See Revision — Criminal Cases.

See Superintendence op High Court.

JUDICIAL PROCEEDING— cowrW.
1. Offence in the course of—

Be-iistance to delivery of posaension — Criminal
Procedure Code (Act V of rg 8), ss. 4 (m), 476—
Jurisdiclion — Civil Procedure Code (Art XIV
of 5S.')» s. 328. Where in an execution case a
warrant for the delivery of possession of lands was
entrusted for execution to the Nazir, who went to
the spot, but was obstructed b}- the opposite party
to the suit, and on his reporting the matter, the
Munsif held an enquiry under s. 476 of the Criminal
Procedure Code and sent the accused to the Magis-
trate for trial under s. 1 86 of the Penal Code. Held,
that the " judicial proceeding " in the case deter-
mined when the Munsif finally decided the case,
there being no further question left for determina-
tion as to the rights of the parties to the suit upon
which evidence could have been legally taken, that
the obstruction was not therefore brought to the
notice of the Munsif in the course of a " judicial
proceeding," and that he had no jurisdiction under
s. 476 of the Criminal Procedure Code to hold an
inquiry. Hara Charan Mookeejee v. Ejiperor
( 1905) . . . . I. L. R. 32 Calc. 367
S.C. 9 C. W. N. 364
Judicial pro-

ceedinq — Lo^al enqxiiry. riot authorised hy law —
Custody of female child — Rival claim of husband and
mother — Question for Civil Court — Proceeding before
Deputy Matjistrate — Order for prosecution for per-
jury hy District Ma'/istrate. An application was
made before the Di.'itrict Magistrate on behalf of
a mother for the recovery of the custody of a female
child from her grandfather G, who was thereupon
called upon by a Magistrate to show cause. G
declared before the Deputy Magistrate that the
child had been already married to R. The Deputy
Magistrate examined R and G, and having satis-
fied himself that the marriage had actually taken
place, submitted the case for orders before the
District Magistrate, who dismissed the appHcation.
The District Magistrate upon a subsequent applica-
tion, in which the story of the marriage was chal-
lenged as false, held a local inquiry and came to the
conclusion that G and R had given false evidence
before the Deputy Jlagistrate and ordered their
prosecution for perjury. Held, that the alleged
offence of pei jury had not been brought to the
notice of the District Magistrate in a " judicial pro-
ceeding " within the meaning of s. 476 of the Code
of Criminal Procedure, and the order for prosecution
was made without jurisdiction. The local inquiry
held by him was one which in the circumstances of
the case he was not authorised by law to make.
Questions as to legal guardianship should be
determined by the Civil Court. Eranholi Athan v.
King-Emperor, I. L. R. 26' Mad. ^8, distinguished.
GoDAi Shaha v. Emperor (1905)

9 C. W. N. 1030
JUDICIAL SEPARATION.

See Divorce Act, s. 3, cl. 9.

I. L. R. 4 Calc. 260

See Divorce Act, s. 7.

L L. R. 22 Calc. 544

( 5971 )

DIGEST OF CASES.

( 5972 )

JUDICIAL SEPARATION— conc/d.

See Divorce Act, s. 35.

9 B. L. B. Ap. 6

I. L. R. 5 Calc. 357

See DivoBCE Act, s. 41 6 B. L. R. 318

See Parsis . I. L. R, 17 Bom. 146

JUDICIAL SUPERINTENDENT OF
RAILWAYS, NIZAM'S DOMINIONS.

Dominions of Nizam of Hy-
derabad— Poicer of Court of Judicial Superin-
endent of Ruihiays to commit to High Court —
Charges preferred hy Advocate General — Letters
Patent, 1865, cl. 24 — European British subjects.
The provisions of the Code of Criminal Procedure
(X of 1882) apply to the Court of the Judicial
Superintendent of Railways in His Highness the
Nizam's Dominions held at Secunderabad. Where,
after a magisterial inquiry, a European British sub-
ject, being a public servant within the meaning of
s. 197 of the Criminal Procedure Code (X of 1882),
was committed for trial to the High Court of
Bombay by the Judicial Superintendent of Railways
in His Highness the Nizam's Dominions, without
any previous sanction having been obtained as re-
quired by that section : — Held, that the proceedings
were illegal and without jurisdiction, and that a
sanction subsequently obtained was of no effect :
but held, also, that the provisions of s. 532 of the
Criminal Procedure Code apphed, and that the
Judge presiding at the criminal sessions of the High
Court had power, in his discretion, to accept the
commitment and to proceed with the trial of the
prisoner. Per Sargext, C.J.— The Court of the
Judicial Superintendent of Railways in His Highness
the Nizam's Dominions is subordinate to the High
Court of Bombay in all criminal matters relating to
European British subjects. Per Bayley, J. — The
Court of the Judicial Superintendent of Railways in
His Highiiess the Nizam's Dominions is not subject
to the superintendence of the High Court of Bombay
within the. meaning of cl. 24 of the Letters Patent,
1865, and a prisoner committed by the former Court
for trial by the High Court cannot be tried on
charges prefen-ed by the Advocate General under
that clause. Queen- Ejipress v. Morton

I. L. R. 9 Bom. 288

•' JUJMANI " RIGHT.

See Decree — Construction of Decree
—Endowment . 20 "W. R. 331

JUNGLE LAND.

See Possession, suit for.

12 C. W. N. 273
JUNGLEBURI TENURE.

See Hindu Law— Widow — Power of

Widow — Power op Disposition or

Alienation . I. L. R. 14 Calc. 328

See Right of Occupancy — Persons by

WHOM Right may be acquired.

I. L. R. 14 Calc. 323

JUNGLEBURI TENURE- concW.

Kabuliat — Raiyat-

Heritahle interest — Occupancy rights — Rent, en-
hancement of— Bengal Tenancy Act ( VIII of 1885),
55. 18 and 30— Status of such raiyat. E held 50
bighas of land for more than 12 years imder a
junglebuii lease, which provided for a progressive
rate of rent and did not expressly provide that the
interest of E was to be heritable or perpetual. It
did not expressly exclude enhancement on any
ground, but expressly prov-ided for enhancement on
the ground of increase in the productiveness of the
soil effected at the expense of the landlord. Held,
that the interest created by the lease was not one
covered by s. 18 of the Bengal Tenancy Act and
that E was not a raiyat holding at fixed rates.
Held (per Rampiot, J.)., that E was a raiyat with
occupancy rights. Raj Kumar Sarkar v. Naya
Chatoo Bibi (1904) . I. L. R. 31 Calc. 960-

JURISDICTION.

Col.

1. Question of Jurisdiction —

(a) Generally .... 5980
(6) When it may be raised . 5985
(c) Wrong Exercise op Jurisdic-
tion 598^

{d) Consent of Parties and
W.uvER OP Objection to
Jurisdiction . . . 5990

2. Causes of Jurisdiction —

(a) Dwelling, Cabry'ing on Busi-
ness, OR Working for Gain 599^

(h) Cause op Action —

General Cases . . 6012

Account, Suit for . . 6014

Agreement . . . 6017

Bond, Suit on . . 6018

Breach of Contract . 6019-

Compromise . . . 6024

Costs .... 6025

Dower .... 6026

False Evidence . . 6026

Foreign Judgment . . 6027

Foreigner . . . 6027

Fraud .... 6027

Legacy .... 6G2&

Lost Property . . 602&

Maintenance . . . 6028

Maucious Prosecution . 6028

Minor .... 6029

Misrepresentation . . 602^

Money had and received 6030

Negotiable Instruments 6030

Partnership . . . 603&

( 5973 )

DIGEST OF CASES.

( 6974 )

JURISDICTION— conic^.

Col.

2. Causes ov Jukisdiction — concld.

(6) Cause op Action — concld.

Peincipal and Agent . 6038
Registration . . . 6039
Release .... 6040
Representative of Deceased

Person . . . 6040

Restitution op Conjugal

Rights 6040

3. Suits fob Land —

(a) General Cases . . . 6041
Administration Suit . 6043
Award .... 6044
Claim to Attached Proper- i

TY .... 6045 I

Foreclosure . . . 6045

Injunction . . . 6046

Lien .... 6047

Partition . . . 6049

Redemption . . . 6050

Rent .... 6051

Specific Performance . 5053

Title-deeds . . . 6055

Trusts .... 6055

(6) Property in different Dis-
tricts .... 6056

4. Admiralty and Vice-Admiralty

Jurisdiction .... 6061

5. Matrimonial Jurisdiction . . 6063

6. Testamentary and Intestate Ju-

risdiction .... 6063

7. Jurisdiction of Magistrates . 6064

8. Jurisdiction of Revenue Officers 6065

Set Act XIX op 1841 . 12 C. W. N. 65

See Agra Tenancy Act (II of 1901),
ss. 31, 57, 179, 199.

I. Ij. R. 31 All. 109

See Agra Tenancy Act (II of 1901),
s. 32 . . 1. L. B. 29 All. 66

iSee Agra Tenancy Act (II OF 1901), s.l67.
I. L. R. 31 All. 445

See Agra Tenancy Act (II of 1901),
ss. 176, 177 AND 182.

I. L. R. 29 AIL 69

See Appeal . I. L. B. 33 Calc. 1323

iSee Arbitration I. L. R. 29 Mad. 69
I.Ii. R.33Bom.401

JUEISDICTIOH"— coKfef.

See Abbitbation Act (52 & 53 Vict.,c. 49),
s. 12 . . I. L. R. 31 Calc. 274

<S'ee Arbitration Act (IX of 1899), s. 19.
I. L. R. 31 Bom. 236
See Arbitrator . 8 C. W. N, 37
-See Attorney . I. L. R. 35 Calc. 915
See Award.

See Bengal, N. -W. P. and Assam Civn.
Courts Act (XII of 1887), ss. 15, 17,.

18, 19 AND 21.

See Bengal Tenancy Act (VIII of
1885), s. 106 . 12 C. W. N. 98T
See Bombay Civil Courts Act (Bombay
Act XIV of 1869), s. 16.

I. L. R. 32 Bom. 634

I. L. R. 33 Bom. 371

See Bombay Revenue Jurisdiction Act.

See Cause of Action.

I. L. R. 31 Calc. 274
-See Chota Nagpur Encumbered Estates
Act, s. 10 . 11 C. W. N. 1127

See Civil and Revenue Courts.

I. L. R. 26 All. 591
-See Civil Proceddre Code, 1882, ss. 17
(c), 551, 623.

I. L. R. 30 Bom. 570 ; 625

-See Civil Procedure Code, 1882, ss. 25,

191 {2) . . 10 C. W. N. 12

-See Civil Procedure Codf, 1882, s. 11"

I. L. R. 33 Bom. 27a

-See Civil Procedure Code, 1882, ss.

16, 19 . . I. L. R. 30 AU. 560

-See Civil Procedure Code, 1882. s. 195

(7) (c) . . I. L. R. 31 All. 313

-See Civil Procedure Code. 1882. ss. 206,

632 . . I. Ij. R. 31 Bom. 44

-See Civil Procedure Code. 1882, s. 244.

I. L. R. 31 All.,45

-See Civil Procedure Code, 1882, s. 285.

I. L. R. 31 All. 527

-See Civil Procedure Code, 1882. s. 310A.

I. li. R. 31 All. 279

-See Civil Procedure Code, 1882, s. 433.

I. Ii. R. 29 All. 379

-See Civil Procedure Code. 1882. s. 622.

I. L. R. 31 All. 38

-See Collector . I. L, R. 26 Mad. 742

I. Ii. R. 28 Bom. 238

-See Commitment . I. L. R. 36 Calc. 48
-See Companies Act, s. 58.

10 C. W. N. 906

-See Contract Act (IX op 1872), ss. 16,

19A. . . I. L. R. 31 Bom. 348

See Contract Act (IX of 1872), s. 69.^

( 5975 )

DIGEST OF CASES.

( 5976 )

JURISDICTION— coHfeZ.

See Contract Act, 1872, s. 205.

See Copyright Act, s. 0. „ ^^.

10 C. W. N. 134

See Costs— Speci.\l Cases— Jurisdic-
tion . . Marsh. 311, 375
1 Ind. Jur. N. S. 38
14 W. B, 312
Bourke O. C. 131

See Criminal Procedure Code. s. 203.
I. Ii. B. 29 All. 7
<See Criminal Procedure Code. s. 250.

I. L. B. 29 All. 137
See Criminal Procedure Code, s. 435.

I.L. B. 29 All. 563

See District Judge, jurisdiction of.
See Divorce . I. L. B. 36 Cale. 964
See Excise Act (XII of 189^-). ss. 44, 57 .
I. L. B. 30 All. 377

See Execution of Decree —

Application for Execution, and
Powers of Court :

5 C.W.N. 287

Transfer of Decree for Execu-
tion, and Power of Court as
TO Execution out of its
Jurisdiction. itla^ jn

See Foreign Court, judgment of.

I. L. B. 2 Mad. 400 ; 407
I. Ii. B. 22 Cale. 222
L. B. 21 I. A. 171
I. L. B. 13 Mad. 493
I, L. B, 15 Mad. 82
I. L. B. 18 Mad. 327
I. L. B. 20 Mad. 112
I. L. B. 29 Cale. 509

See Fraud. . I. L. B. 29 All. 418 :
11 C. W. N. 579

-See Hereditary Offices Act (Bom. Act
III of 1874), s. 18.

I. Ii. B. 25 Bom. 186

See High Court, jurisdiction of.

See Injunction.

I. L. B. 34 Cale. 97, 101

See Insolvency . I. L. B. 31 Cale. 761

8 C. W. N. 468

I. L. B. 36 Cale. 489

See Insolvency Act, s. 5.
-See Insolvency Act (11 and 12 Vict.,
c. 21), ss. 7, 26, 36.

I. L. R. 33 Bom, 462
See Insolvency Act (11 and 12 Vict.,
c. 21), ss. 26, 27.

I. L. B. 32 Bom. 198

See Insolvency Act, s. 58.

I. L. B. 13 Bom. 114

-See JiTRiSDiCTiON OF Civil Court.

JUBISDICTION— conW.

See Jurisdiction of Criminal Court.
See Jurisdiction of Revenue Court.
-See Land Acquisition Act (1 of 1894).
I. L. E. 35 Cale. 525, 1104
12 C. W. N. 263

Registration- Act (VI op
I. Ii. B. 35 Cale. 120, 571

-See Land

1876) .
-See Legal Practitioners Act (XVIII of

1879), ss. 13 AND 14.

I. Ii. B. 29 All. 61

See Legal Practitioners Act. 1879,
s. 36 . I. Ii. B. 31 All. 59

See Letters of Administration.

1. B. L. B. O. C. 3, 19

8 W. B. 3

4 B. L. B. Ap. 49

IHyde 67

Bourke, Test. 6

11 W. B. 413

-See Letters Patent, 1865, ns. 10. 39.
I. L. B. 32 Bom. 106

-See Letters Patent, 18'^5, cl. 12.

I. Ii. B. 30 Bom. 167
I. Ii. B. 35 Cale. 394

See Letters
1865, CLS. 1:

Patent,
, 13.

High Courts,

See Magistrate — ■

General Jurisdiction ;
Powers of Magistrates.

I. Ii. B. 29 Cale. 242
I. Ii. B. 36 Cale. 72

-See Mahomedan Law .

I. Ii. B. 36 Cale. 21

See Mamlatdar, jurisdiction of.

-See Mamlatdars'

Courts Act.
I. Ii. B. 31 Bom. 86
See Mortgage . I. L. B. 34 Cale. 886
See Municipalities Act (X. W. P. 1900),

s. 183 . . I. L. B. 31 All. 371
-See N.-W. P. Land Revenue Act, 1873,

ss. 132, 241 .
See MuNSiF.
See Partition .
See Penal Code,

I. L. B. 31 All. 41

I. L. B. 29 All. 604

;. 392.
I. Ii. B. 28 All. 372

See Plaint — Procedttre.

I. Ii. B. 24 Mad. 158

See Possession . I. L. B. 33 Cale. 33

See Power of Court to rectifv mistake .

12 C. W. N. 1027

See Practice . I. L. B. 30 Bom. 109
I. li. B. 35 Cale. 541

See Presidency Small Cause Courts
Act (XV of 1882), s. 19 (A-).

I. Ii. B. 32 Bom, 575

( 6977 )

DIGEST OP CASES.

( 5978 )

JURISDICTION— co««d.

See Probate — Jurisdiction in Probate

Cases.
See Provincial Small Cause Courts
Act (IX OF 1887), s. 15.

I. li. K. 35 Calc. 677
See Provincial Small Cause Courts
Act (IX of 1887), s. 35.

I. li. K. 30 Mad. 217

See Prosecution, order for.

I. li. B. 35 Calc. 114 ; 133

See PuTNi Sale . 11 C. W. N. 765

See Receiver . I. L. B. 30 Calc. 593

See Religious Endowments Act, ss. 5,

14.
See Rent, suit for— By what Court

TRIABLE . I. L. B. 30 Calc. 453

.See Restitution of Conjugal Rights.

See Right of Suit-

I. L. B. 31 Calc. 849

-Fraud.

7 C. W. N. 353

6'ee Sale in Execution of Decree.
^ee Secretary of State.

I. Ii. B. 27 Bom. 189
See Sessions Judge, jurisdiction of.
See Small Cause Court, Mofussil —

Jurisdiction . I. L. B. 28 All. 292
See Small Cause Court, Presidency

Towns — Jurisdiction.
See Specific Relief Act. s. 9.

13 C. W. W. 303, 305
See Subordinate Judge, jurisdiction

of.
See Suits Valuation Act. (VII of 1887),

ss. 8, 11 . . I. Ij. B. 31 Bom. 73
I. L. B. 33 Bom. 307

See Summary trial.

I. Ii. B. 36 Calc, 67

See Superintendence of High Court.
See Tank . I. L. B. 31 Caic. 937
See Transfer of Suit.

I. L B. 30 Bom. 246
See Trespass . I. L. B. 36 Caic. 28
See U. P. Land Revknue Act, 111 of
1901, s. 233 (A) I. L. B. 31 All. 330
iSce Valuation of Suit— Appeals.
See Waiver . I. L. B. 35 Calc. 394

attachment of property outside—

See Attachment — Attachment before
Judgment . . 7 C. W. N. 216

cause of action-

<See Executor
See Misjoinder.

7 C.W.N. 476

JURISDICTION— ccw^fei.

civil and revenue Courts —

I. L. B. 26 Bom. 259

See Aden Courts Act.

I. L. R. 29 Bom. 36&

See Civil Court.

I. L. B. 32 Calc. 1072

-See Civil Procedure Code, 1882, s. 204.
9 C. W. N. ftl

See Civil Procedure Code. 1882, s. 622.

9 C. W. N. 605

See Contract . I. Ii. B. 32 Calc. 884

See Court Fees Act, s. 7.

9 C. W. N. 690

See Criminal Court.

I. L. B. 32 Calc. 783

See Defamation. I. L. B. 32 Calc. 425

-See Execution. . 9 C. W. N. 381

-See Forest Act I. L. B. 29 Bom. 480

-See Governor in Council.

9 C. W. N. 257

-See High Court

9 C. W. N. 961

-See Indian Post Office Act (VI op
1898), s. 34.

-See Insolvency

9 C. W. N. 952

offence in

-See Judicial Proceeding

THE course of.

I. L. B. 32 Calc. 367

-See Letters Patent.
See Limitation . 9 C, W N. 956
-See Remand . I. L. B. 32 Calc. 1069
-See Revenue Sale.

I. L. B. 32 Calc. 229

-See Sale . I. L. B. 32 Calc. 1104

See Sanction for Peisecuthix.

I. L. B. 32 Calc, 379

-See Security to keep the Pface.

I. L. B. 32 Calc. 948

illegal exercise of, or failure to

exercise —

-See Certificate of Administration —
Certificate under Bombay Regula-
tion VIII of 1827.

I. L. B. 16 Bom. 708

-See Superintendence OF High Court —
Civil Procedure Code, 1882, s. 622.

. irregularity — interference

revision —

-See Civil Pbocedure Codf, 1883, s.

I. L. B. '■M All. 56

-See Cruiinal Procedure Cope. ss. 37,

88 AND 89 . I. Ii. E. 27 All. 572-

( 5979 )
JURISDICTION— conW.

DIGEST OF CASES.

— irregularity — interference in re-
vision—concW.

See Criminal Procedure Code, s. 145.

9 C. W. N. 1046
See Criminal Procedure Code, ss. 443,
et seq. . . I. L. R, 27 All. 397
See Ceiminal Procedure Code, s. 556.

I. L. R. 27 All. 25 ; 33
See Execution of Decree.

I, L. R. 27 All. 62

See Limitation Act (I of 1877), Rch. IT,

Art. 28 . I. L. R. 27 AIL 622

See Offence . ^9 C. "W. N. 816

— ■ matrimonial jurisdiction-

See Divorce Act (IV of 1869).

of British Courts to decide

question of succession to Foreign Sov
ereign State —

See Tipperah Raj.

I. L. R. 35 Cale. 777

of Financial Commissioner —

See OuDH Sub-Settlement Act, XXVI

OF 1866 . . I. I;. R. 31 All. 394

— — of High Court to interfere in

the Attorneyship Examination—

See Mandamus . I. L. R. 35 Calc. 915

of Mofussil Small Cause Court—

See Small Cause Court— Mofussil

Jurisdiction ;

Practice and Procedure.

I. L. R. 25 Bom. 417

— of Munsifs —

See Restitution of ConjucxAl Rights.
I. L. R. 34 Calc. 352

-:^^~__ °^ Presidency Small Cause

-See Arbitration— Awards— Validity of
Awards, and Ground for setting
them aside . I. L. R. 30 Calc. 397

See Small Cause Court, Presidencv
Towns — Jurisdiction.

of Small Cause Court—

-See Attachment— Subjects of Attach-
ment—Salary.

I. L. R. 30 Cale. 713

over foreigners —

See Foreign Court, judgment of.

,. ^ 5 C. W. N. 741

question of—

^^TA^i.t''"'''^'^-'™ Court-Objections

TAKEN for first TIME ON ApPEAI^
JUBISDICTION.

JURISDICTION— confd.
to set aside award-

See Arbitration Act, 1899, s. 14.

13 C. W. N. 63

transfer or re-arrangement of.

in British Territory-

See Cession of British Territory in
India . . I. L. R. 1 Bom. 367
I. L. R. 2 All. 1
want of—

See Appellate Court — Exercise of
Powers in various Cases.

I. L. R. 13 All. 575

See Sale in Execution of Decree — In-
valid Sales — Want of Jurisdiction.

See Registration Act (III of 1877),
s. 28 . . I. L. R. 29 Calc. 654

1. QUESTION OF JURISDICTION.

(a) Generally.

1. Duty of Court to show its

jurisdiction on its proceedings. The High
Court pointed out the necessity of a Court showing
its jurisdiction and competency on the face of all its
proceedings. Queen v. Bipro Doss

8W. R. Cr. 45
2. Jurisdiction on what depend-
ent— Nature of claim — Nature of defence. The
jurisdiction of a Court of justice as to a cause of
action depends on the nature of the claim put for-
ward by the plaintiff and the matter involved in it,
not on what the defendant may assert by way of
defence. Chunder Koomar Mundul v. Bakur

Ali Kan 9 W. R. 598

Dalgleish v. Jeebun Mahto . 25 "W. R. 1
Watson v. Hedger W. R. 1884, Act X, 25
NoBiN Chunder Roy Chowdhry v. Bhowanee
Pershad Doss . . W. R. 1864, Act, X, 52
3. Questions of jurisdiction how-
governed — Statements in plaint and defence — •
Valuation of suit. Questions of jurisdiction,
whether with reference to the nature of the suit or
with reference to the pecuniary limits of the claim,
are matters to be governed by the statements con-
tained in the plaint in the cause. The valuation of
the claim as preferred b}' the plaintiff, and not as set
up by the plea in defence, would i^overn the action,
not only for the purposes of the original Court,
but also for the purposes of appeal, and indeed
throughout the litigation. Jag Lal v. Har
Narain Singh . . I. L, R. 10 All. 524

4. ■ Objection to jurisdiction —

Evidence of jurisdiction — Military Court of Re-
quests Act (XI of 1S41), s. S. Where the plaintiff
alleges the defendant to be amenable to the jurisdic-
tion of the Court, and the defendant denies its juris-
diction:—/^eW, that the parties should be allowed to
go into evidence to support their allegations, and the

( 5981 )

DIGEST OF CASES.

( 5982 )

JURISDICTION— conW.

1. QUESTION OF JURISDICTION— contd.

(a) Generally — contd.

Court ought not to have rejected the plaint, without
recording its reasons for the same, or taking evi-
dence on the point, under s. 8, Act XI of 1841.
Anoop Chund, v. Shumbhoo Mxjll 1 Agra 222

5. Appeal on merits

of case. In a suit for confirmation of possession of
an estate under a bill of sale, by setting aside a bond
in favour of a third party, and a sale in execution of
a decree of the Small Couse Court upon the bond,
the first Court found that plaintiff's bill of sale was
fraudulent, and that he was not in possession. On
appeal the Judge, on an objection taken for the first
time in his Court, held that the Small Cause Court
had no jurisdiction to try a suit on a bond in which
land was hypothecated, and, without going into
plaintiff's case, gave him a decree. Held, that the
Judge ought to have tried first, not the defendant's
case, but the plaintiff's, who was bound to prove his
possession and the genuineness of his bill of sale;
until then the question of jurisdiction did not arise.
Rash Behahee Roy v. Ezud Buksh

11 W. R. 276

e. Admission or rejection of

jurisdiction by Court — Judicial inve-<tigation.
A judicial investigation of allegations and facts
sufficient to guide the Court should precede the
admission or rejection of jurisdiction. Nusrun
Beebee v. Watson & Co. 3 W. R. 215

See HtJEEE Peesad Malee v. Koonjo Behary
Shaha . , . Marsh. 99 : 1 Hay 238
and IsHAN Chunder Roy v. Taeruck ('hu>di^r
Banerjee . . . . 18 W. R. 238

7. Jurisdiction in supple-
mental suit. Courts having jurisdiction over the
subject-matter of a suit in Mhich a right is asserted
have also jurisdiction over a supplemental suit in
which the plaintiff seeks to follow out that i-ight.
Kashee Nath Kooer v. Deb Kristo Ramanooj
Doss 16 W. R. 240

Distinction between suits.

appeals, and applications in matters of
jurisdiction. Tlie distinction made for the pur-
poses ot limitation between suits, appeals, and appli-
cations by the Limitation Acts has no bearing upon
a que'stion of jurisdiction. Balaji Raxchoddas v.
Mohanlal Dalsitkhram I. L. R. 5 Bom. 680

9. — Plea of jurisdiction— Pofi'er

of Appellate Court. An Appellate Coiu't cannot
treat a plea to jurisdiction as a technical plea which
may be disregarded if the Court is satisfied with the
decision on the merits. Keshava Sana Bhaga v.
Lakshminarayaxa . . I. L. R. 6 Mad. 192

Joy Kishen Mookerjee v. Hureehur Mcioker-
JEB 6 W. R. 289

10.

Power of Court

to decide ivant of jurisdiction in another Court. Al-
though one Court cannot set aside the proceedings of

JURISDICTION— confi.

1. QUESTION OF JURISDICTION— conW.

(a) Generally — conld.

another Court for want of jurisdiction, yet when a
matter arises before a Court in the ordinary course
of its jurisdiction, and one of the parties relies on,
or seeks to protect himself by the proceedings of,
another Court, then in that way the jmisdiction of
the Court whose proceedings are pleaded may be
enquired into. Accordingly, in a suit in which the
plaintiff asked for a declaration of title, and a
Revenue Court's want of jurisdiction appeared on
the face of its decree, a Munsif was held to be
justified in holding that the Revenue Coiurt had no
jurisdiction. Gunnesh Pattro v. Ram Nidhee
KooNDoo . . . . 22 W. R. 361

11.

Right to object

to jurisdiction. Where a suit is in.stituted against
a Collector and another person, and the Collector
does not appeal : — Held, that the question of the
District Court's jurisdiction to entertain the suit
being a ground common to all the parties affected
by the judgment, it is open to the other person to
object that the plaint did not disclose a cause of
action against the Collector, and that the District
Court consequently had not jurisdiction. Sangapa
Malapa v. Bhimangowda Mariapa

10 Bom. 194

12 Competence of Court having

jurisdiction to hear a suit, to decide every
question arising in the suit— Limitation.
\Vhere a Court is competent to hear a particular
suit, it is competent to decide every question,
whether of limitation or any other matter,
arising in the suit. If it decdes such question
■wrongly it does not thereby lose its
jurisaiction, and its decree, though possibly
^\Tong, is not a nullit}^. The decree is a per-
fectly good decree, until reversed in some manner
provided bv law. Malkarjun v. Narhari, I. L. R.
25 Bom. 337, and Caston v. Caston, I. L. R. 22 All.
270, referred to. Nathu Ram v. Kaliax Das
(1904) . . . . I. L. R. 26 All. 522

13. Suit against Official As-
signee— Mofussil Civil Courts — Insolvent — Ciail
Procedure Code [Act XIV of I8S2), ss. 278, 622—
Mortgage of indigo-cakes to be manufactured hereafter
— Mortgage-bond— Eg icity — Equitable titles — Priority
— Privileged lien — Salvage lien. The plaintiffs
instituted a suit against the Official Assignee for the
value of property claimed by them and alleged to
have been improperly seized by him as part of the
assets of an insolvent. Held, that the Mofussil Court
and not the High Court had jimsdiction to try the
suit. A mortgage of property which is to come
into existence in the future is a valid transaction
enforceable bv Courts of Equity. Clement \. Mat-
thews, L. R. h Q. B. SOS ; Holroyd v. MarshaU, 10
H. L.191 : 36 L. J. Ch. 193 ; Bansidhar v. SaiU Lai,
I. L. R. 10 All. 133 ; and Misri Lai v. Mozhar
Hosain, I ''■■ ". '-? Calc. 262, referred to. la order
to carry on the business of an indigo factory A

( 5983 )

DIGEST OF CASES.

{ 5984 )

JURISDICTION— con<^.

1. QUESTION OF JURISDICTION— con^rf.

(a) Generally — contd.

mortgaged to B the factory, out- works and produce.
Subsequently B sued A for the amount of the
mortgage and obtained a decree. C in November
1876 purchased these decrees. Previous to this
date A hypothecated to D indigo-cakes which might
be manufactured for the years 1895, 189fi, 1897 and
alleged he had made them over to the servant of D.
C became an insolvent, and the Official Assignee
executed the decrees and withdrew the sale-pro<;eeds
of the indigo-cakes from Court. Held, that D had
no prior lien over the indigo-cakes, not being a hoitd
fide transferee for value without notice, and such
lien having nothing in common with a salvage lien.
Moran v- Miitu Bihee, I.L. R.2 Calc. 5S, referred to.

B.VLDEO PaKSHAD SaHU v. a. n. MiLLKR (19't4)

I. li. B. 31 Caic. 667

14. Munsif exercising Small

Cause Court powers — rrovmcitd bmail Cause
Coaris Act {IX oj id,>7), s. 35 — 31unsifs, juris-
diction oj— Civil ProceAure Code {Act XIV of
J882), s. 25— Civil Courts Act (XIl of 1S87), s. 17—
Appeal. When a Munsif vested with the powers of
a Coiurt of Small Causes is transferred and is suc-
ceeded in office by a Munsif not vested with such
powers, and the Court of S-nall Causes is in conse-
quence abolished, the successor has jimsdiction
under s. 35 of the Provincial Small Cause Courts
Act and s. 17 of the Civil Courts Act (XII of 1887)
to try in his ordinary civil jiurisdiction all the suits
pending on the files, ^\hether they be suits falling
within the ordinary civil juiisdiction of the Court of
his predecessor, or within its jurisdiction as the Court
of Small Causes, which has. been abolished. No
order of transfer under s. 25 of the Code of Civil
Procedure is necessary to enable the successor to try
the suits ; and any order purpor ing to fall under
that section, if made, has not the effect of giving
to the successors jurisdiction to try as a Court of
Small Causes the suits which had been pending in
the abolished Court of Small Causes. The successor
can try such suits only in his ordinary civil jurisdic-
tion and his decision in such case is open to appeal.
Mnvqnl Rpn v. Rnp Chand, I. L. R. 13 All. 324,
dissented from. Dulal Chandra Deb v. Ram
Nak.v n Deb (1904) . I. L. R. 31 Caic. 1057

15. Tiled hnts^Prr.id nci/ S))viU

Cause Court — New tri I — Title to immoveable pro-
perly—Piesidency Sm dl C ruse Courts Act (I of 1S95),
s. 38— Civil Procedure Code (Act XIV of 88 '), s.
622. Ordinarily where pr perty attached as
being the property of a judgment aebtor is claimed
by a third person, that tliirel person may file a
claim ; and, where the Court has jurisdiction to
try the question, the title to the propertj' is de-
termined in the execution proceedings. Tiled
huts are immoveable property. Uneler the pre-
sent law the Snail Cause Court ha n > j ri dicti n
to try a quo ti< n of title t) uch h t. a. be-
tween an attaching credit r and a third per k n who
alleges that the property belongs to him and not

JURISDICTION— conW.

1. QUESTION OF JURISDICTION— co?i<rf.

(a) Generally — contd.

to the judgment-debtor. Peari/ Mohan Ghosaul v.
Harran Chander Gangwly. I. L. R. U Calc. 26 U
distinguisheel. Jamnadas v. Bai Shivkor, I. L. R. 5
B m. >i2. followed. Amrita Lal Kalay v. Niba-
RAN Chandra Nayek (1904)

I. L. R. 3' Calc. «4a
S.C. 8 C. W. N. 246

16. Refusal to

nesses — Interference by High

examiae wit-

Court — Criminal
Proceduie Code (Act V of 1S9)), s. i45. Wherein
a proceeding under s. 145 of the Criminal Pro-
cedure Code the trying Magistrate refused to
examine certain witnesses on behalf of one of the
parties, who were present in Court : Held, that the
trying Magistrate had acted in contravention of the
provisions of s. 145, 1 (4) of the Code and the High
Court hael power to interfere. Manmatha Nath
Mitter v. B.\roda. Prosad Roy Chowdhry (1904)
I. li. R. 31 Caic. 685

17. Suit against deceased

person — Where a suit is instituted < g inst a

deceased person. Courts have no jurisdiction to

I allow the plaint to he amended by substituting the

names of the representatives of the deceased. There

, is nothing in the Code of Civil Procedure to

j authorise the institution of a suit against a

deceased person and the Courts have no jurisdic-

1 tion to allow the plaint is such a case to be

amended by substituting the names of the repre-

! sentatives of the deceased, even when the suit is

instituted bo7id fide and in ignorance of the death of

the defenrlant. Mohun Chunder Koondoo v.

j Azeen Gazee Chowkeedar (12 W. R. 4 ), followed,

I Mallikarjiina v. Pullayya, I. L. R. lf> Mad. 319^

I distinguished. Veerappa Chetty v. Tindal Pon-

NEN(1907) . . . I. L. R. 31 Mad. 86

18. . Small Causes suit — Suit

brought in the Court of the First CI ss Subordi-
nate Judge having Small Cause powers — The
Subordinate Judge on privilege leave — Charge of
the Court in Joint Second Class S bordinnte Judge
who had no small cause powers — Register ing the suit
as a regular suit — Trial of the suit by the First Class
Subordinate Judge as a regular suit — S it remains
a small cause. A suit of the nature of a small cause
was instituted in the Court of the First Class
Subordinate Juelge who had small cause powers.
At the date of its institution, he was on privilege
leave and liis Court was in the charge of the Joint
Second Class Subordinate Judge who had no small
cause powers. The suit was therefore registered as
a regular suit. On liis return from leave the First
Class Subordinate Judge tried it as a regular suit.
T.he question having arisen whether the suit was
a small cause : Held, that the First Class Subor-
dinate Judge continued to be a Judge with Small
Cause Court powers eluring his absence on leave, and
the entering of the suit in the file of regular suits
could not take it away from the category of small
causes nor could the fact that the Subordinate

( 5085 )

DIGEST OF CASE&

JURISDICTION— conW.

1. QUESTION OF JURISDICTION— con<(i.

(o) Generally — concld.

Judge tried the suit under his ordinary jurisdiction j
deprive it of its character as a small cause. Naba-
YAN Ravji v. Gangaram Ratanchand (1909).

I. Ij. R. 33 Bona. 664

(b) When it may be raised.

Objection not taken in

first Court. The Court will receive and ad-
judicate a point of jurisdiction, though not taken
below, because as acts done without jurisdiction are
acts of no legal effect at all, tiiey must be set aside.
Gooroo Persad Roy v. Juggobundo Mozoomdar
W. R. P. B. 15
Juggobundo Mozooinidar v. Gooroo Persad
Roy . . Marsh. 54 : 1 Hay 228

20. - — Objection not

taken in first Court. The plea of want of jurisdic-
tion can be entertained for the first time at any
stage of a suit, provided there is on the record suffi-
cient material to substantiate it. Nidhi Lal v.
Mazhar Husain . . I L. R. 7 All. 230

JURISDICTION— con<<i,

1. QUESTION OF JURISDICTION— conW.
(6) When it may be raised— co«W.
vacation, referred by order of the District Judge for
trial by the Assistant Judge : — -Held, on objection
taken on appeal, that the District Judge ought to
have considered the objection, as involving a ques-
tion of jurisdiction, though raised before him for the
first time during the hearing, and not taken in the
memorandum of appeal against the decree of the
Assistant Judge. Motilal Ramdas v. Jamnadas
Javerdas . . 2 Bom. 42 : 2nd Ed. 40

25.

Objection raised

21.

Objection to ju-

risdiction in Appellate Court. An objection to the
jurisdiction, the validity of which is patent on the
j face of the proceedings, can be taken at any stage of
I the proceedings. Sidheshwar Pandit v. Harihar
i Pandit . . . I. L. R. 12 Bom. 155
22. - Time for taking objection.

! It is an objection which can be taken at any stage
I of the case. Nobeen Kishen Mookerjee v. Shib
I Pekshad Pattack . . .7 W. R. 490

Sushteebur Mookerjee v. Mackenzie
I 2 W. R., Act X, 76

j Anundee Koonwar v. Takoor Pandey

4W. R. Mis. 21

for first time on appeal. A sued 5 in a Court
which had no jurisdiction to entertain the claim.
The suit was heard and determined in favour of B
by the Munsif, whose decree was affirmed on appeal
by the District Court. Held, that ,4 had a right in
special appeal to take the objection that the Courts
below had proceeded without jurisdiction. Bhat
TriiMBakji v. Tomu valad Kutur

2 Bom. 200 ; 2nd Edn. 192

26. Objection raised

on special appeal. Where an objection to the juris-
diction of the Court of first instance was taken for
the first time in special appeal, being based on an
illegal withdrawal of the suit by the District Judge
from the Sudder Ameen to the Assistant Judge's file,
it was held that the High Court was not bound to
entertain the objection unless it was patent on the
face of the record. Bapuji Auditram v. I^med-
BHAi Hathesing . . 8 Bom. A. C. 245

27. Objection taken on appeal

after remand. The Court will take notice
of a question affecting its jurisdiction even
when urged for the first time on appeal after remand.
Chowdby Wahid Ali v. Mullick Inayet Ai.i

6 B. L. R. 52 : 14 W. R. 288

28. — ■ An objection to

jurisdiction may be raised at any stage of a suit,
even after remand by the High' Court in second
Objection taken for first I appeal. Keshav v. Vinayak

' I. Ii. R. 23 Bom. 22

29. - Objection talen

on appeal after remand. Wlien the Hish Court

time in appeal. The question of jurisdiction

cannot be raised in appeal for the first time, un-

k'ss it appear upon the face of the pleadings or the

admission of the parties, or upon the evidence, that

I he suit will not lie. Where it did not appear on the

lace of the pleadings, or on the evidence, under what

kind of bastu the land in dispute fell, and no plea

t he jurisdiction of the Court under Act X of 18.')9

I been taken in the Courts below, the High Court

uld not remand the case to enquire under which

ss of bastu land the subject-matter of suit fell, or

I t'rtain the point of jurisdiction in appeal. Naim-

i)DA JOWARDAB V. MONCBIEFF

3 B. L. R. A. C. 283

s.c. Nymooddee Joardae v. Moncrief

12 W. R. 140

has remanded a suit for re-trial on the merits, the
lower Appellate Court has no authority to raise a
question of jurisdiction for the fii st time. Temulji
Rustamji v. Fardunji Kavasji

5 Bom. A. C. 137

30.

Objection raised

24.

Objection raised

I for first time on appeal. Where a suit which
j ought to have been instituted in the Court of the
Sudder Ameeu was, that Court being closed for the

VOL. III.

after remand on special appeal. A plaint presented
to a Court not being the Court of the lowest grade
competent to try it, was returned to tlie plaintiff.
It was subsequently registered by the san e Court in
obedience to an order of the District Judge, and a
decree was passed in plaintiff's favour. On appeal
the defendant pleaded want of jurisdiction in the
Court below. 'I'he ])lea was ovemded, and the case
remanded for re-trial on its merits. The Court of
first instance again passed a decree in favour of the
plaintiff, and the defendant again iirged his plea of

9 E

( 5987 )

DIGEST OF CASES.

JUKISDICTION— cow;<f.

1. QUESTION OF JURISDICTION— conti.
(b) When it mat be raised — contd.
jurisdiction in appeal, but the Judge declined to go
into it a second time. Held, that the euit not
having been instituted in the Court of the lowest
grade competent to try it, the District Judge had no
power to direct the Court of first instance to hear the
case, and although no special appeal was preferred
against the decree of the District Judge in which
he remanded the case for re-trial, it was still open to
the defendant in special appeal to raise the plea of
iurisdiction. Ganputrav Ranchodji v. Bai Sxtraj
7 Bom. A. C. 79

31. — - Objection raised

on special appeal — Suing without authority. A
widow, without any ^^xitten authority, sued on
behalf of her son, who was absent on militar}' service
beyond the jurisdiction of the Court ; the defendant
did not object to her want of authority in the Court
of first instance, but did so in the Courts of appeal
and special appeal. Held, that the objection was a
valid one. Shivram Vithal v. Bhagirthibai

6 Bom. A. C. 20

32.

Objection raised

on special appeal — Presumption of jurisdiction.
Held by Markby, J., that whenever an objection is
made to the want of jurisdiction for the first time in
the High Court on special appeal, every presumption
should be made in favour of the jurisdiction of the
Courts below. Rooke v. Pyari Lal

4 B. L. E. Ap. 43 : 11 W. E. 634

33. Objection to ju-
risdiction iaJ:en at late stage of suit — Procedure.
AA'hen an objection to the jurisdiction is first taken
at a late stage of the suit, instead of being brought
forward as it should be at the first stage of the suit
^\ hen the plaint is presented for admission, the pro-
per course is, even if the jurisdiction be doubtful, to
proceed to determine the suit. Bagram v. Moses
1 Hyde 284

34. ^ Procedure on

allowance of objection. Where the objection of
jurisdiction had been raised and allowed at an early
stage of the case, the plaint should have been
returned to be presented in the proper Court.
Khooshal Chtjnd v. Palmer . 1 Agra 280

Khaisdu Moreshvar v. Shivji Gorkoji

5 Bom. A. C. 212

35. . . Objection taken

on appeal — Costs. Where the plea of want of
jm-isdiction was taken in special appeal, each party
was made to bear his own costs. Nobeen Kishen
MoOKERJEE V. SniB Pershad Pattack

7 W. B. 490

36. _ . . Application for

execution of decree — Objection apparent in record.
Qucere : Whether upon an application for execu-
tion of a decree, an objection, apparent on the face
of the record, to the jurisdiction of the Court which
made the decree, can be entertained. Mohan

IsHWAE V. Haku Rupa . I, L. R. 4 Bom. 638

JURISDICTION— con<d.

1. QUESTION OF JURISDICTION— conti.
(5) When it may be raised — contd.

37. Objection to

order made without jurisdiction — Objection on appeal
from subsequent order. A Court has no jurisdiction,
reading s. 372 of the Civil Procedure Code with
s. 647, to bring in a party after decree and make
him a judgment-debtor for the purposes of execu-
tion. Gocool Chunder Gossamee v. Administrator
General of Bengal, I. L. R. 5 Gale. 726, and Attorney-
General V. Corporation of Birmingham, L. R. 1-5 Ck.
D. 423, referred to. Where a Court had so acted,
by an order which might have been, but was not,
made the subject of aj^ioeal under s. 588 of the Code :
— Held, that, as there was no jurisdiction to make
such an order, the party aggrieved was competent
to object tliereto on appeal from a subsequent
order enforcing execution against Mm as a
judgment-debtor. Goodall v. Mussoorie Bank.
I. li. B. 10 All. 97

38.

Objection that

certificate had not been obtained for suit — Suit under
Dekkan Agricidturists' Relief Act. Held, that an
objection to a suit under the Dekkan Agriculturists'
Relief Act, on the ground that a proper certificate
had not been obtained, could be taken for the first
time in second appeal, as it was an objection
affecting the jurisdiction of the Courts below.
Nyamtula v. Nana valad Faridsha

I. L. R. 13 Bom. 424

Objection as to

jurisdiction, first taken in second appeal — Waiver
of objection to jurisdiction. A suit of which the
subject-matter was less than R2,500 was instituted
in a subordinate Court. The Subordinate Judge
tried the suit and passed a decree, and an appeal
against this decree was entertained and determined
by the District Judge without objection taken that
the subordinate Coxu-t had no jurisdiction to hear
and determine the suit. On second appeal the
objection was taken as above. Held, that the
objection could not be waived, but must prevail,
and the plaint be returned for presentation in the
proper Court. VELAYtroAM v. Arunachala

I. li. R. 13 Mad. 273

40. Criminal Court— Objection

taken for first time on appeal. A plea of want

of jurisdiction may be taken in the High Court,

though not taken below. Macdon.at.d v. Rtddell

16 W. R. Cr. 79

41.

Criyyiinal Court

The case of a prisoner accused of the offence of at-
tempting to cheat by personation was referred for
trial by the District Magistrate to a Magistrate,
who, without a complaint being made to him, con-
victed and sentenced the prisoner. The conviction
and sentence were confirmed by the Sessions Judge.
On application to the High Court to annul the con-
viction, on the ground that the Magistrate had no
jurisdiction to try the case, the Court refused the
application, as the question of jurisdiction had not

DIGEST OF CASES.

( 5990 )

JUKISDICTION— cowW.

]. QUESTION OF JURISDICTION— conirf.

(6) When it may be raised — concld.

been raised before the Sessions Court. Reg. v.
VisHVANATH Daulatbav . 4 Bom. Cr. 33

Suit instituted in wrong

Court — Tranajer of suit. Where a suit has been
instituted in the wrong Court, the defect of jurisdic -
tion is not cui-ed by its transfer to the Court in
which it ought to have been brought. Pachaoni
AWA.STHI V. Ilahi Baksh I. li. R. 4 All. 478

43.

Case tried without juris-

diction owing to improper valuation —

Civil Procedure Code, 1859, s. 6 — Irregularity not
'prejudicing defendant — Valuation of suit. Act
VIII of 1859, s. 6, occurring in a Code of Civil
Procedure regulated the practice of Courts, but did
not take away jurisdiction from any Court, which,
like a Subordinate Judge's Couil, had general juris-
diction. Accordingly where an alleged irregularity
had in no May prejudiced the aj^pellant, the High
Court thought it unnecessary to go into the question
of valuation with a view to determine in what Court
the suit ought to have been brought. RussiCK
Chtjnder v. Ram Lall Shaha . 22 W. R. 301

44.

Subject-matter

—Act XIV of 1869, s. 25. What frimd facie
determines the jiurisdiction of a Court is the claim or
subject-matter of the claim as estimated by the
i plaintiff, and the determination having given the
1 jurisdiction, the jurisdiction itself continues, what-
I ever the event of the suit. And this is so, notwith-
standing a bond fide error in the estimate made by
the plaintiff. But the plaintiff cannot oust the
Court of its jm-isdiction by making unwarrantable
additions to the claim which cannot be sustained
and which there is no reasonable ground for expect -
m<x to sustain. Lakshman Bhatkar v. Babaji
J.hatkar . . . . I. li. R. 8 Bom. 31

45. Suit brought without

authority — Subsequent sanction, effect of. Where
a suit was brought by a widow on behalf of her
Kill who was absent on military service and the
"lijection of jurisdiction was taken and allowed: —
U'hi, that the defect of jurisdiction could not
lie ciured by the production of a wiitten authority
nil special appeal. SmvRAM Vithal v. Bhagir-
niiBAi .... 6 Bom. A. C. 20

: 48. ^ — Suit brought under honest

I misinformation— Jit/igre trying suit over which

he had no cognizance — Dekkan A'iricuUurists'

Rlicf Art, 1879, Ch. II. An application of Ch. II

"' the Dekkan Agriculturists' Relief Act (XVII

, of 1879) by a Subordinate Judge which would have

I been illegal and wTong if the Subordinate Judge had

j known the subject-matter of the suit was of greater

value than B. 100, may be sustained if he was led into

j applying it by honest misinformation. The original

JURISDICTION— con<<f.

1. QUESTION OF JURISDICTION— con<i.

proceedings being thus justified, a Special Judge has
jurisdiction to revise them and, if necessary, to
order a new trial. Konda.ti Baga.ji v. A:sax

I. L. R. 7 Bom. 448

47. Suit against Sardar— i?c-

trospective effect of oppnintT-eyit. Creation of the
defendant as Sardar in 1867 cannot have a retro-
spective effect so as to affect a suit instituted against
her in the Civil Court \n 1861 and to render the
decree of that Court one without jurisdiction.
Ramabai Saheb Patvardhan v. Appa

12 Bom. 13

48. Exercise of jurisdiction by

Court wrongly, owing to negligence of
party. Where jurisdiction over the .suliject-raatter
exists, requiring only to be invoked in the right way,
the party who has invited or allowed the Court to
exercise it in a wrong way cannot afterwards
challenge the legality of the proceedings due to his
own invitation or negligence. But if there is no
jurisdiction over the subject-matter, the acquies-
cence of the parties concerned cannot create it.
Vishnu Sakharam Naoarkar v. Krishxarao
Malhar . . . I. Ij. R. 11 Bom. 153

Naro Hari v. Anpurnabai

I. Ii. R. 11 Bom. 160 note

{d) Consent of Parties and Waiver of Objec-
tion TO Jurisdiction.

r 49. Consent T of parties — Pontr

to (jive Court jurisdiction by consent. Where a
Court has no jurisdiction, no consent of parties can
give it jurisdiction. Aukhil Chunder Sen Roy v.

MOHINY MOHUN DaSS

I. L. R. 5 Cale. 489 : 4 C. L. R. 491

Bhoopendro Nath Chowdhry v. Kalee Pro-
suNNO Ghose . . . 24 W. R. 205

50. Agreement of

parties that suit shall be brought in Court which
has no jurisdiction. Jurisdiction cannot be given
or taken away by the agreement of parties. Held,
therefore, that a clause in a bill of lading vesting
jurisdiction in a Court which has no jurisdiction can
have no legal effect or be pleaded in bar of a suit
brought in a Court which has jurisdiction. Crawley
V. Luchmee Ra]vi ... 1 Agra 129

51. Suit brought not

in competent Court — Case transferred by consent
to competent Court. When a suit has been tried by a
Court having no jurisdiction over the matter, the
parties cannot, by their mutual consent, convert
the proceedings into a judicial process ; although,
when the merits have been submitted to a Court
it may result that, having themselves constituted
it their arbiter, the parties may be bound by its
dec sion. On the other hand, in a suit tried by a
competent Court the parties having without objec-

9 E 2

( 5991 )

DIGEST OF CASES.

( 5992 )

JURISDICTION— con<<Z.

1. QUESTION OF JURISDICTION— ron^a'.

id) Consent of Parties and Watvee of Objec-
tion TO Jueisdiction. — contd.

tion joined issue and gone to trial upon the merits,
cannot subsequently dispute the jurisdiction on
the ground of irregularities in the initial procedure
which, if objected to at the time, would have led
to the dismissal of the suit. A suit, having been
instituted in a Court not of competent jurisdic-
tion, was transferred with the consent of parties
to a Court which was competent ; but the defence
of jurisdiction was set up before the issues were
fixed, and was afterwards insisted on throughout.
Held, that, in the single fact that the defendant
had personally concurred in the transfer, there had
been' no waiver of the right to maintain this
defence, and that the suit muht be dismissed on
the ground that it was not competently brought.
Ledgard v. Bui-l . . I. L. B. 9 All. 191
L. E. 13 I. A. 134

52.

Effect of con-

sent— Land situated beyond British territories. The
Raja of Dangradra, an independent Chief, sued
the Government of Bombay for a village which he
described in the plaint as situated in the Raja's own
territory. The District Judge, Ahmedabad, reject-
ed the suit for want of jurisdiction, as the village in
dispute was beyond the British territories. On ap-
peal, the High Court remanded the case for re-trial
on the merits, on the agreement by the plaintiff that
he would so amend the plaint as to bring the suit
within the jurisdiction of the Ahmedabad District
Court. The plaint was accordingly amended, and
the District Court decided the case on the merits in
favour of the plaintiff. The High Court, however,
finding that the amendment did not alter the ori-
ginal statement in the plaint regarding the situa-
tion of the xnllage, and finding that the plaintiff's
evidence and arguments were directed solely to
prove that the village was not in British, but foreign
territory, annulled the decree, although both the
parties expressed their wiUingness that the appeal
should be decided on the merits, the Court acting
on the rule of law that no consent of parties can
give to the Court a jurisdiction which it does not
possess over the subject-matter of the suit.
Government of Bombay v. Ranmalsinoji
Amarsingji .... 9 Bom. 242

53.

Consent to

jurisdiction — Waiver of objection to jurisdiction.
The plaintiff sued three defendants on a bond alleged
to have been executed by them to the plaintiff.
Two of the defendants did not appear, or make any
defence to the suit. The second defendant only ap-
peared and objected to the jurisdiction of the Court ;
but his objection was overruled, and a decree was
made against all three defendants. On appeal the
lower Appellate Court reversed the decree, holding
that the Court of first instance had no juri-sdiction.
The plaintiff preferred a second ap])eal, and contend-
ed that the first and third defendants had consented

JUBISDICTION— contt/.

1. QUESTION OF JURISDICTION— confi.

(d) Consent of Parties and Waiver of Objec-
tion to Jurisdiction — contd.
to the jurisdiction of the Court, and that the decree
was binding as against them. Held, affirming the
decision of the low er .Appellate Court on the question
of jurisdiction, that the conduct of the defendants,,
even if it could be held to have amounted to consent
or acquiescence, did not give the lower Court any
jurisdiction. Con.sent or acquiescence does not give
jurisdiction to a Court of limited jurisdiction, though
the waiver may be sufficient in a Court of superior
jurisdiction. The consent which waives an irregu-
larity, or allows the Court to exercise a power not
vested in it, cannot by itself give the authority
itself as an attribute of the Court, which must
directly or indirectly emanate from the Sovereign.
Babaji v. Lakshmibai . I. Ij. B. 9 Bom. 266

54. : Hearing of evi-
dence and decision by different Judges. Where the
Judge who decides the case is not the Judge who
heard the witnesses and received the evidence, the
defect may be cured by the assent of the parties.
MoHAMED V. Oomdaii Khanum . 13 W. B. 184

55, Bengal Civil

Courts Act [VI of J 871), s. 17— Close holiday-
Proceeding on civil side of District Court during
vacation — Irregularity. S. 17 of the Bengal Civil
Courts Act {VI of 1871) was framed in the interests
of the Judges and officials of the Courts, and
probably also in the interests of the pleaders, suitors,
and witnesses, whose religious observances might
interfere with their attendance in Court on particular
days. On a close holiday, a Judge m.ight properly
dechne to proceed with any inquiry, trial, or other
matter on the civil side of his Court ; and any party
to any judicial proceeding could successfully object
to any'such inquiry being proceeded with, and, in the
event of any such inquiry having been proceeded
with in his absence and without his consent, would
he entitled to have the proceeding set aside as
irregular, probably in any event, and certainly if his
interests had been prejudiced by such irregularity.
But, at the furthest, the entertaining and deciding
upon a matter within the ordinary jurisdiction of the
Court on a close holiday is an irregularity the right
to which can be waived by the conduct of the parties ;
and a party who, on a close hohday, does attend, and
without protest takes part in a judicial proceeding,
cannot afterwards successfully dispute the juris-
diction of the Judge to hear and determine such
matter. Bennett v. Potter, 2 C. d: J. 622 ; Andrews
V. Elliott, 5 E. cb B. 502 : '> E. d- B. 38; and Bisrum
Maton V. Sahib-un-nissa, I. L. R. 3 All 333 re-
ferred to. Ram Das Chakarbati v. Official
Liquid-ator of the Cotton Ginning Company

I. L. B. 9 All. 366

56.

Tiansferof case

-Objection to jurisdiction subsequently taken. A suit
having been instituted in the Court of the Subor-
dinate Judge who was incoinpetent to try it,
the case was transferred bv consent of parties to the

{ 5993 )

DIGEST OF CASES.

( 5994 )

JURISDICTION— con/rf.

1. QUESTION OF JURISDICTION— conid.

(d) Consent of Parties and Waiver of Objec-
tion TO Jurisdiction — contd.

Court of the District Judge for convenience of trial.
Held, that such transfer ^v as incompetent, and that
such consent did not operate as a waiver of the plea
to the jurisdiction which was taken in the defendant's
written statement and subseciuently insisted on.

57.

Ohkction

jurisdiction after consent. In a cause which a
.Judge is competent to try, if the parties without
objection join issue and go to trial upon the merits,
the defendant cannot subsequently dispute his
jurisdiction upon the ground of irregularities which,
if objected to at the proper time, might have led to
the dismissal of the suit. But when the Judge has
no jurisdiction over the subject-matter of a suit, the
parties cannot by their mutual consent convert it
into a proper judicial process. Ledgurd v. Bull,
L. R. 13 I. A. 134, referred to and followed. Mi-
XAKsm Naidu v. Subeamanya Sastri

I. L. R. 11 Mad. 26
L R. 14 I. A. 160

KUM4RA3AMI ReDDIAR V. SuBBARAVAR ReDDIAR

I. L R. 23 Mad, 314

58.

"Waiver of jurisdiction-

Consent of parties. An objection to jurisdiction
cannot be waived by the parties. Lalmoney
DossEE V. Jaddoonauth Shaw

1 Ind. Jur., N. S. 319

( Contra) see Tickum Lall Doss v. Macarthur
1 W. R. 279

59.

Omission to raise

plea of jurisdiction. In a suit in a Munsif's Court
on a right of pre-emption, in which plaintifi under-
valued his claim, the defendant, without objecting
to the jurisdiction, allowed the case to go to trial,
'and, after passing through the subordinate Courts,
to come up to the High Court in special appeal. It
was remanded on a question of fact and came up
■again in special appeal, when the point was rai.sed
for the first time (though not taken in the petition
of appeal) that the suit was not cognizable by the
Munsif, and therefore that all that had been
done had been done without jurisdiction. Held,
that the defendant was not at liberty to waive
juri.sdiction, and that the objection must be allowed
to be taken even at this late stage. Held, that the
suit ha \nng been beyond the Munsif's jurisdiction,
his judgment was not legal, and his decree, in the eye
of the law, no decree at all and of no legal ettect.
Naunhoo Singh v. Tofan Singh. 14 W. R. 228
Omission to raise

flea of jurisdiction. Held, that, if a defendant
who appears in a suit chooses not to raise the
plea of want of jurisdiction, he must be taken
to submit to the jurisdictions and that any
decree which may be pronounced again.sthim cannot,
■when it is sought to be executed, be objected to by

JURISDICTION— -o/z/J.

1. QUESTION OF JURISDICTION— cowici.

{d) Consent of Parties and A\'aiver of objec-
tion TO Jurisdiction — contd.
I him on the ground that the Court which made it had
[ no jurisdiction to try the suit. Ex parte ^l Ay i>HAR
Bhivrav Potanis 2 Bom. 396 : 2nd Ed. 374
Kandoth Mammi v. Neelan Cherayil Abdu
Kvlandan . . 8 Mad. 14

1 61. — Defendant not

j taking plea of jurisdictio)i, effect of. Where a
I Court has no inherent jurisdiction over the subject-
matter of a suit, the parties cannot by their mutual
I consent give it jurisdiction. A suit of a nature
' cognizable by a Court of SmaU Causes alone was
brought in the Court of a Joint Subordinate Judge,
The defendant objected to the jurisdiction of the
j Court, but his objection was overruled. The suit
I was, however, dismi.ssed on the merits. On appeal
before the District Judge the defendant did not
1 renew the plea of want of jurisdiction. The District
i Judge reversed the decree of the Subordinate Judge
i and awarded the plaintiff's claim. The defendant
thereupon apphed to the High Court under s. 622 of
: the Code of Civil Procedure (Act XIV of 1882).
' Held, that both the lower Courts had no jurisdic-
tion to deal with the suit. The mere circumstance
that the defendant did not raise the plea of want of
jurisdiction in the Appellate Court did not clothe
that Court with a jurisdiction not given to it by law.
Ladli Begam v. Raje Rabia

I. L. R. 13 Bom. 650

62. Agreement to

submit to execution of decree — Jurisdiction. A
decree-holder, with a certificate showing that satis-
faction of his decree had not been obtained in the
district in which it had been passed, applied to the
Judge ofanother distnct and succeeded in obtaining
partial execution. Upon a .second attachment
issuing, the judgment-debtor prayed for time and
agreed in his petition that, if he did not satisfy the
debt within the period named, the propeity might
be sold. His prayer was granted. He then raised
the plea that the Court which made the decree had
no jurisdiction to entertain the suit. Hell, that,
having pleaded in the Court below on the assump-
tion that the decree was a monej-deoree which the
Court which made it had jurisdiction to make, it
was not open to the judgment-debtor's pleader to
urge that it was not a money-decree. Radha

COBIND GOSSAMI L'. Oo.MA SUNDUREE DOSSIA

24 W. R. 363

63. Omission to raise

objection to execution of decree. Certain property
having been sold in execution of a decree by a Court
to which the decree had been transferred, a suit was
brought to set aside the sale on the ground that the
Court from which the tran-sfer had been made had no
jurisdiction to grant, as it did a certificate of non-
.satisfaction. It appeared that on execution being
applied for in the Court to which the decree had
been transferred, no objection to the jurisdiction had
been raised. Held, that the objection, assuming it

( 5995 )

DIGEST OF CASES.

JURISDICTION— con<i.

1. QUESTION OF JURISDICTION— conic?.

(d) Consent of Parties and Waivee of Objec-
tion TO JtrEISDICTION — cotitd.

to be valid, was taken too late and the sale could
not be set saide. Modttn Mohttn Ghose Hazka
V. Bokoda Sundari Dasia . 8 C. L. R. 261

64. .Omission to raise

plea till late stage of case — Eight to raise, on special
appeal. A Munsif having leturned a plaint under
Act XXIII of 1861, s. 8, and dismissed the suit as be-
ing in value beyond his jurisdiction, the plaintiff ap-
pealed to the District Judge, who, on the 14th June
1872, pronounced the decision wrong, and ordered
the Munsif to try the suit. The suit was accordingly
tried and dismissed, but on appeal it was decreed,
by the Subordinate Judge. Subsequently a special
appeal was preferred in which objection was
raised on the score of jurisdiction. Held, that ths
objection could not be taken at this stage, as the
defendant had not chosen to appeal against the Dis-
trict Judge's order of 14th June 1872. Koylash
Chtjnder Ghose v. Ashruf Axi 22 W. K. 101

Raj Narain v. Rowshan Mttll

22 W. R. 126

65.

A suit for rent

having been brought in the Beerbhoom Collector-
ate and decreed, the case was referred in execution
to the Collector of Burdwan, within whose jurisdic-
tion the property lay. The tenure was sold by the
Deputy Collector of the latter district and purchased
by the decree-holder. Appeals were made to the
Collector and the Commissioner by the judgment-
debtor, and were rejected by both officers. 'The
judgment-debtor then brought a suit for possession
in the Civil Court, and obtained a decree revers-
ing the sale on the ground that the decree for rent
had been made by a Collector who had not jurisdic-
tion. Held, that, after all that had passed, it was
too late to raise the question of jurisdiction. Ooma
Soonduree Dossee v. Bipin Beharee Roy

13 W. E. 292

66.

Civil Procedure

Code, 1882, s. 20. In 1876, K sued M on a bond,
dated 2oth December 1809, for R5,000, by which
certain land in the district of South Tanjore was
hypothecated as security for the debt, and obtained
a deciee on the 6th of April 1876 for the sale of "the
land, which he purchased on the 17th August 1876
for R6,000. K then discovered that part of the land
hypethecated, situated within the jurisdiction of the
subordinate Court at Kumbakonam, had been ac-
quired by a railway company under the Land Ac-
quisition Act in 1874, and that the compensation,
H400 (claimed by J/'.v mother, who sold the land to
the company), was lodged in the treasury of Kumba-
konum in the name of M's mother. K having ap-
plied to the subordinate Court for an order for pay-
ment out of this sum, the court, by order dated 28th
February 1880, directed that the question of title to
the money should be decided by suit. K then sued
M as the sole heir of his deceased mother in the Dis-

JURISDICTION— con<d.

1. QUESTION OF JURISDICTION— confcf.

(d) Consent op Parties and Waiver of Objec-
tion TO Jurisdiction — contd.

trict Munsif's Court of Triuvadi (where M resided)
for a declaration of right to and to recover the said
sum of R460. On the 16th April 1880, M assigned
his interest in the money sued for to V, who was
made defendant in the suit on his own application,
and pleaded that the Court had no jurisdiction, as
both the money and the land which it represented
were, and he (F) resided, without the Munsif's
Court's jurisdiction. Held, that the suit was for
money, and that V, not having apphed to stay
proceedings imder s. 20 of the Civil Procedure Code,
must be held to have acquiesced in the jurisdiction
of the Court. Venkata Viraragava Ayyangar v.
Krishnasami Ayyangar I. L. R, 6 Mad. 344

67. Subsequent plea

of ,hy same party in another ca^e. The fact of a de-
fendant not subject to the jurisdiction of a Court
having waived his privilege in previous suits brought
against him does not give the court jurisdiction to
entertain a suit against him in which he pleads that
he is not subject to such jurisdiction. Beer
Chunder Manikkya v. Raj Coomar Nobodeep
Chunder Deb Bdrmono

I. li. R. 9 Cale. 535 : 12 C. L. R. 465

Waiver of want

of jurisdiction — Civil Procedure Code, s. 26, Order
made under, without notice to the party not applying
— Transfer of civil case. A suit for land was
filed in 1883 in the subordinate Court of Cochin.
In 1884, the Government, by a notification under
Act III of 1874, transferred the district where the
land was situated from the jurisdiction of that
Court to that of the subordinate Court of Calicut,
whereupon the plaintiff apphed to the District Court
to transfer the case to the file of the first-mentioned
Court under s. 25 of the Code of Civil Procedure.
The District Judge granted the apphcation
without notice to the defendants. The defend-
ants went to trial, and also preferred an appeal
against the decree, which was passed in favour
of the plaintiff, without objection to the juris-
diction of the Court. In execution of the above
decree (which was affirmed on appeal), the plaintiff
was obstructed. He therefore filed the present suit
against the obstructors under the yjro visions of s.
331 of the Code of Civil Procedure, and they
pleaded that the decree sought to be executed had
been passed without jurisdiction. Held, (i) that the
want of notice to the defendants of the application
made under s. 25 of the Code of Civil Procedure
was immaterial ; (ii) that the defect, if any, of the
jurisdiction of the Court passing the decree had been
waived by the defendants, and that the present
defendants were precluded from availing themselves-
of it. Sankumani v. Ikoran

I. L. R. 13 Mad. 211

69.

Suit on

— Land sitvuted outside territorial jurisdiction op

( 5997 )

DIGEST OP CASES.

JTJRISDICTION— conW.

1. QUESTION OF JURISDICTION— conW.

{d) Consent of Parties and Waiver of Objec-
tion TO JlTRISDICTION COntd.

Court — Court otherwise competent to entertain suit —
Decree passed without objection — Execution of
decree. A suit on a mortgage was instituted in the
Court of the District Munsif at Nellore, which was
competent to try a suit of its nature and value ;
but the mortgage-lands were situated within the
jurisdiction of the Court of the District Munsif at
Tirupati. A decree was passed for the amount due
and for sale, no objection being raised as to want
of jurisdiction of the Nellore Court to try the
case. A\'hen the decree-holder applied for an
order absolute and for exeoution of the decree,
objection was taken that the Court had no
jurisdiction to entertain the suit, and that the
decree passed by it could neither be made
absolute nor be executed. Held, that the
decree w as not a mere nulhty, and inasmuch as no
objection had been taken to the entertainment of
the suit before the decree had been passed the judg-
ment-debtor should not be allowed to object to the
validity of the decree in the course of its execution.

GOMATHAM iXxAMELTJ V. KOMANDUR KrISHN-

machar(1904) I. L. R. 27 Mad, 118

70. ■ Re4ra7isfer — Dis-
trict Judge— Civil Procedure Code (Act XIV of 1S82)
ss. 13 and 2-' — The Bengal, N.-W. P. and Asscmi
Civil Courts Act (XII of 1887), ss. 9 and 18— Inherent
power — Waiver of jurisdiction — Res judicata — Mort-
gage, subrogation of — Cvmpromise decree, when bind-
ing. A suit was instituted onginally in the Court
of the second Subordinate Judge ; the District
Judge transferred the case to his own Court
acting in the exercise of the powers conferred
on him by s. 25 of the Code of Civil
Procedure (Act XIV of 1882). Subsequently,
the District Judge transferred the case to the first
Subordinate Judge as he himself was about to
proceed on leave. The case was tried by him and
no objection was taken by either pnrty to the effect
that the Subordinate Judge had no jurisdiction to
try the case. On an objection taken as to the want
of jurisdiction. Held, that, inasmuch as under s. 9
of Act XII of 1887 the District Judge had admin-
istrative control over all the Civil Courts within the
local limits of his jurisdiction, he had inherent power
to transfer the case from his own Court to that of a
Subordinate Judge, especiall}' when the order was
for the obvious benefit of the litigants and for the
speedy determination of the matter. Held,
further, that under s. 18 of Act XII of 1887,
the Subordinate Judge, unquestionably possessed
Jurisdiction over the subject-matter of the
litigation, and that therefore the case was not
one of absolute want of jurisdiction, but was at
best an irregular assumption of jurisdiction ; and as
no objection at an earlier stage of the proceedings
was taken by the defendants appellants, they
waived their right to take exception to the power of
the Subordinate Judge to try the cause under autho-
rity of an order of transfer made by the District

JURISDICTION"- coni'i.

1. QUESTION OF JURISDICTION— confcf.

(d) Consent of Parties and Waiver of Objec-
tion TO Jurisdiction — contd.

Judge. To determine the question of res judicata
it is essential to assertain what were the rights in
dispute between the parties and what were alleged
between them, and this must be done not merely
from the decree, but also from the pleadings and
judgment. Surjiram Marwari v. Barhamdeo Per.sad,
I. 0. L. J. 337, and Magniram v. Medhi Hossein
Khan, I. L. R. 31 Calc. 9-', referred to. In a suit
to enforce a second mortgage, the first mortgagee
is not a necessary pary. Where an adjudication
between the defemtaut is necessary to give the
appropriate relief to the plaintiff', there must be
an adjudication, and in such a case the adjudica-
tion will be res judicata between the defendants
as well as between the plaintiff and the defendants ;
but for this there must be a conflict of interest
amongst the defendants and the judgment mu.st
define the real rights and obligations of the defend-
ants inter se. Magniram v. Mehdi Hotisein Khan,
I. L. R. 31 Calc. 96, Chajju v. Umrao Singh, I. L.
R. 22 All. 386. Balambhat v. Narayanbhat, I. L. R.
2-5 Bom. 74, Muhammad Kuni Rowthan v. Visvan-
athaiya, I. L. R. 26 Mad. 33, and Cottingham
V. Earl of Shreiosbury, 3 Hart' 627, referred to. To
entitle one to invi»ke the equitable right of subroga-
tion, he must either occujjy the position of a surety
of the debt or must have made the payment
under an agreement with the debtor or creditor
that he should receive and hold an assignment of
the debt as security or he must stand in such a
relation to the mortgaged premises that his
interest cannot otherwise be adequately protected.
The doctrine of subrogation is not applied for the
mere stranger or volunteer, who has paid the debt
of another, without any assignment or agree-
ment for subrogation, being under no obliga-
tion to make the payment and not being
compelled to do so for the preservation of
any rights or property of his own. Subrogation
is by redemption, and unless there is redemption,
no subrogation can take place. Where, therefore,
sums paid by a subsequent mortgagee were apphed
only in part satisfaction of the claim for interest due
upon earlier bonds, a claim for subrogation could
not arise. The rule is, that before one creditor can
be subrogated to the rights of another the demand
of the latter must be entirely satisfied so that he
shall be relieved from all further trouble, risk and
expense. Merritt v. Hosmer, 11 Gray 276 ; 71 Am.
Dec. 713, Street v. Beal, 16 Joiva. 68 ; 85 Am. Dec.
■504, O'Reilly v. Holt, 4 Wood C. C. 645 ; IS Fed.
Cases 792, Carter v. Neal, 24 Georgia 346 ; 71 Am.
Dec. 136, and Hollingworth v. Ployed, 2 Harris &
Gill (Maryland) 91, referred to. A petition of
compromise in so far as it relates to properties in
suit, does not require registration under s. 17 of the
Registration Act (III of 1877), and the decree, in so
far as it gives effect to the settlement touching such
properties, operates as res judicata. If it give effect
to the settlement touching properties extraneous to

( 5999 );

DIGEST OF CASES.

(' 6000 );

JTJBISDICTIOW— conf^.

1. QUESTION OF JURISDICTION— cowc'rf.

(d) Consent of Parties and Waiver of Objec-
tion TO Jurisdiction — concld.

the litigation, the decree is to that extent without
jurisdiction and is inoperative. In relation to
these extraneous properties, the parties must fall
back upon the petition itself, which cannot without
registration effectively declare or create a title to
immoveable property exceeding one hundred rupees
in value. Pmnal Anni v. Lakshmi Anni, L. R. 26
I. A. 101 ; I. L. R. 22 Mad. -508, Muthyya v. Ven-
Icataratnam, I. L. R. 25 Mad. 553, Birhhadra Rath
v.Kalpataru Panda, 1. C. L. J. 388, Kali Charan
Ghosal V. Ram Chandra Mandal. I. L. R. 30 Calc.
799, Patha v. Esup, I. L. R. 29 Mad. 365, Achut-
aramraja V Subbaraju, I. L. R., 25 Mad. 7, referred
to. GuEDEO Singh v. Chandrikah Singh (1907)
I. L. K. 36 Calc. 193

2. CAUSES OF JURISDICTION.

(a) Dwelling, Carrying on Business, or
Working for Gain.

1. Dwelling place — Anitriu.^ re-

vertendi. Whatever the purpose for which a man
may go to another jurisdiction than that in which
his family resides, if there is an anhmis revertendi,
the family dwelling-house must be considered to be
his dwelling place. Kashee Nath Kooer v. Deb
Kristo Ramanooj Doss 16 W. R. 240

2. Civil Procedure

Code, 1859, s. 5~Act XXIII of 1861, s. 4— Resi-
dence— Soldier ivith his reginiPMf.. The fixed and
permanent home of a man's wife and family, and
to which he had always the intention of returning,
will constitute his dwelling-place within the mean-
inaof s. 5 of Act VIII of 1859 and s. 4 of Act
XXIII of 1861. Fatima Begam v. Sakina Begam
I. L. R. 1 All. 51

JURISDICTION-— cow^rf.

2. CAUSES OF JURISDICTION— co«<r?.

(a) Dwelling, Carrying on Business, or Work-
ing FOR Gain — contd.

' dwell " within the local limits so as to give the
Court jurisdiction under ol. 12 of the Letters Patent.
Kavasji Framji v. Wallace 1 Bom. 113

Dwelling — Letters Patent, cl. 12 \

■ — Temporary residence — Habits, calling, and nature
of establishment. A person having a permanent
residence at Dinapore came to Calcutta and resided
there temporarily for the purpose of carivnng on a
suit. Held, that, he could not be said to dwell in
Calcutta within the meaning of cl. 12 of the Letters
Patent. The influence of his habits, calling, and
the nature of his establishment may be consi-
dered in deciding whether a defendant is resident
within the jurisdiction. Emrit Lall v. Kidd

Cor. 46 : 2 Hyde 117

Letters Patent,

d. 12 — Officer on leave. The defendant, an oflacer ii
the Bombay Staff Corps, holding an appointment
in Scinde, came to Bombay on leave, and remained
about ten days. During his stay in Bombay, he was
served with a writ of summons on a cause of action
arising in Scinde. Held, that the defendant did not

5. Letters Patent,

cl. 12 — Letive of Court. H died at Ajmere, his re-
presentative then and at the time of suit brought
being resident there. Previous to the death oi H a,
cause of action had accured against him in Bombay.
Held, that, it was not necessary to obtain the leave
of the Court under cl. 12 of the Letters Patent before
instituting a suit against H's representative in
respect of such cause of action. Hargopal Prem-
sukdas v. Abdool Khan Hajee Muhammad

9 Bom. 429

6. Addition of a

defendant residing out of jurisdiction in a suit in
tchich leave to sue has been already obtained — Letters
Patent, 1865, cl.l2 — Fresh leave to sue such new
defendant necessary. Where a defendant is added ■
who does not reside within the jurisdiction of the
High Court, and against whom the -cause of action
has not arisen wlioUy within that jurisdiction, leave
mu-t be obtained under cl. 12 of the Letters Patent,
1865, even if leave was obtained when the suit was
originally filed. Rampartab Samrathrai i-.Foooli-
BAi I, L. R. 20 Bom. 767

7. ^ Civil Procedure

Code, 18)9, s. 5 — What constitutes " dicelling " with-
in the meaning of that section. A testator bequeath-
ed the income of his "altamgha," " zamindari "
and " thikadari la ds " situate in the districts of
Delhi, Hissar, and Bulandshahr, to his five sons in
equal shares, and to their issue, directing that one
of the sharers should manage the estate, accounting
yearly to the others, and receiving ten per cent, per
annum. The lands described as " altamgha " were
in the Bulandshahr district within the local limits
of the jurisdiction of the Civil Court of Meerut ; and
on them an establishment was maintained at the ex-
pense of the estate. At Han.si, in Hissar, there was

I also a residence belonging to the estate, and another
at Delhi. The will directed that the brothers might,

1 if they liked, hve together at Bilaspur, and build
houses " with mutual consent in the altamgha and

1 zamindari " also that certain memorials of the
testator were to be retained by the manager at Bi-
laspur. At this place the manager used to stay oc-
casionally, though travelling for the most part
about the estate during the cold weather. No par-
ticular place for rendering the yearly accoimts was
fixed, eithei by contract or in practice, but they
were rendered by the manager to the sharers at
different times and in different places, including
Delhi, Bilaspur, and Hansi ; at which last place it
being the sudder station of Hissar, the older records
of the estate were kept. When this suit was
brought the manager was actually residing at the
hUl station of Mussoorie, in the Saharanpur

( 6001 )

DIGEST OF CASES.

( 6002 )

JJTRlSI>lCTIOT!f- cant I.

2. CAUSES OF JURISDICTION— co?i<rf.

(a) Dwelling, Carrying on Business, or Work-
ing FOR Gain — conid.

district, for the hot weather ; and in his answer
he stated that the unsettled accounts were open to
inspection by the sharers at Bilaspur. Held, that,
a person might " dwell," within meaning of Act
VIII of 1859, s. 5, at more places than one ; and
that, on the evidence, this manager so dwelt at
Bilaspur as to make him subject to the jurisdiction
of the Meerut Court in this suit. It was accordingly
not necessary to consider whether he was or was not
also subject to that Court's jurisdiction by reason of
the cause of action having arisen within its local
limits ; nor was it necessary to consider whether he
had or had not such a dwelling-place at Hansi as
would have rendered him subject to the jurisdiction
of the Hissar (Punjab) Courts. Orde v. Skinner
I. L. B. 3 All. 91
L. R. 7 I. A. 196

Letters Patent

lSf)->, cl. ]2 — ■' Divell " — " Carry on business " —
" Personally working for gain.'' The plaintiff claim
to be the Acharya or high priest of the Vaishnavi
community and the Maharaj Tikait of Shri Nathji
at Nathdwar in the territories of the Maharana
of Oodeypore. In 1876, he was deported from the
territories of His Highne-ss, and his son, the defend-
ant, had ever since been in charge of the shrine.
The plaintiff alleged that at the time of his deporta-
tion he had money and valuables at Nathdwar
which he had entrusted to his son, the defendant,
for safe custody. He now sued to recover this
property from the defendant. The defendant
pleaded that the High Court of Bombay had no
jurisdiction to tiy- the suit. It appeared that the
defendant's permanent residence was at Nath-
dwara, from which he was absent only when
on pilgrimage or on tour. He had in Bombay
an establishment, called a pedi in which a
bhandari or treasurer, a munim, and mehtas
.and servants were regularly employed. Into this
pedi offerings made to the shr.'ne of Shiri Nathji by
devotees were paid, as also offerings to another
shrine at Nathdwara of which the defendant claimed
to be the owner, and to a very small extent offerings
to the defendant personally as the owner of such
shrines. The defendant had similar establishments
in other places in the Bombay Presidency. The
offerings collected in them were transmitted to the
Bombay pedi and dealt with there. The moneys from
the Bombay pedi were transmitted to Nathdwara
sometimes by means of bundles drawn at Nathdwara
on the Bombay pedi and honoured by that pedi,
and sometimes by articles being purchased for the
defendant's use by the servants of the pedi in Bom-
bay and sent to Nathdwara. In May 1888, the
defendant agreed to purchase a house in Bombay
for Rl, 18,500. Earnest-money (RlO.OOO) was
paid out of moneys in the Bombay pedi, and the
employes of the pedi after the purchase lived in the
house. Interest was paid on the unpaid purchase-

JURISDICTION" coM/rf.

2. CAUSES OF JURISDICTION— con^/.

(a) Dwelling, Carrying on Business, or Work-
ing for Gain — contd.
moiey. In 1889, when the defendant visited
Bombay, he hved in this house, but he sold it in
the same year shortly before he returned to Nath-
dwara. The defendant had never been in Bombay
until 1889. In that year, in accordance with the
practice, he obtained from the British Resident at
Meywar a permit to travel with an armed following
to the places mentioned in the permit, one of which
was Bombay. The journey was supposed to last
for six months. The defendant left Nathdwara in
February 1889, and after various stoppages reached
Bombay on the 2nd April, and took up his quarters
at the house abovementioned. The reason assigned
for his coming to Bombay was that his devotees had
asked him to come. AVhen in Bombay, his followers
visited him, and he visited their houses on invita-
tion. On these occasions he received offerings
which in the aggregate amounted to about R75,000.
These offerings were personal, and were not paid
into the pedi. This suit was filed on the 3rd May
1889, while the defendant was in Bombay. Early in
August he left Bombay and returned to Nathdwar.
The plaintiff contended that the Court had jurisdic-
tion under cl. 12 of the Letters Patent, 1865. Held,
that, at the date of the institution of the suit the
defendant was neither dwelUng nor carrying on
business, nor personally working for gain, in Bora-
bay, and that the Court had no jurisdiction. Gos-
VAMi Shri 108 v. Govardhaxlalji

I. li. R. 14 Bom. 541

9. Temporary residence. Oc-
casional residence will not bring a defendant with-
in the jurisdiction ; he must be a fixed inhabitant of
the district in which the suit is brought. Zalem
Tewaree v. Gobindgeer Gossain

1 Ind. Jur. O. S. 85

s. c. Lelim Tewaree v. Gobixdgeer Gossain
Marsh. 64 : 1 Hay 132

10. ■ Residence for

temporary purpose — Receipt of j/resent^ by high
jn-iest of temple — Office for receiving presents— purchase
of hou-^e — Letters Patent. High Court, cl. 12. The word
" dwell " must be construed with reference to the
particular object of the enactment in which it occurs.
Residence in Bombay merely for a temporary pur-
pose is not to " dwell " there so as to give jurisdiction
to the High Court under cl. 12 of the Letters Patent,
1865. //f/fZ. that the mere fact that the defendant
had purchased the house which he occupied during a
temporary visit to Bombay afforded no inference of
an intention to dwell there. A defendant who was
the acharya or high priest of the Vaishnav communi-
ty and the Maharaj Tikait of Shri Nathji at Nath
dwara had a pedi, or place of business in Bombay
where devotees paid in an\' presents they intended to
offer him. Held, that this did not amount to " carry-
ing on business "' so as to give the Hitrh Court juri-
sdiction under cl. 12 of the Letters Patent, 1865. The
defendant, when in Bombay, was invited by his

( 6003 )

DIGEST OF CASES.

( 6C04 )

JURISDICTION— fonW.

2. CAUSES OF JURISIJICTION— conW.
(a) Dwelling, Cabrying on Business, or Work-
ing FOR Gain — contd.
devotees and pupils to their houses, where he was
treated as an incarnation of the deity with certain
forms and ceremonies, and received presents, and
gave his blessing. Held, that this did not amount
to " personally working for gain " within the
meaning of cl. 12 of the Letters Patent, 1865. Gos-
WAMi Shri 108 Shri Gibdhabiji v. Govar-

DHANLALJI GiRDHARIJI I. L. R. 18 BOIQ. 290

Held on appeal to the Privy Council, that the
expression " carry on business " in cl. 12 of the
Letters Patent, 1865, is intended to relate to busi-
ness in which a man may contract debts, and ought
to be Uable to be sued by persons having business
transactions with him. The defendant, who was an
acharya of the Vaishnav community and was head
of their institution at Nathdwara in Udepur, where
he usually resided, was, when this suit was brought,
in Bombay for a time. He had in the latter place a
treasurer and other servants employed in an es-
tabhshment for the collection and entry of gifts
made by devotees ; and there also donations, made
in like establishments elsewhere were received for
transmission to Nathdwara. The defendant also,
while in Bombay, accepted offerings on ceremonial
visits made or received by him personally, but no
bargain for the amount was made beforehand.
Held, by the Privy Council, that in the above
transactions there was no " carrying on business "
within cl. 12 of the Letters Patent, 1865.
GoswAMi Shri 108 Shbi Girdhariji v.

GOVARDHANLALJI GiRDHARIJI

I. L. R. 18 Bom. 294
li. R. 21 1. A. 13

11. . Letters Patent,

1S65, cl. 12 — " Dwell " — Temporary residence ivhen
svfficient to give jurudiction. The defendant, \\ho
was Political Agent at Kolhapur, left Kolhapur on
the 6th March, 1900, en route for England on a
year's furlough. He arrived in Bombay on the 8th
March and sailed for England on the 10th. While
the defendant was in Bombay {viz., on the 8th
March) the plaintiff presented a plaint against him,
in the heading of which he (defendant) was stated to
be then residing at Malabar Hill in Bombay. The
plaint in the first instance was rejected for want of
jurisdiction. On appeal : Held, that, the temporary
residence of the defendant in Bombay under the cii--
cuiEStanccs gave the Court jurisdiction, and that
the plaint should bo admitted. For the purposes
of jurisdiction a man may be said frimd facie to
dwell where he is staying at any particular time,
but it is open to him to show that he is not dwelling
there, but at some other place. The defendant had
no residence at Kolhapur at the time the plaint Mas
presented, and must be taken to have then been
dwelling in Bombay Fernandez v. Wkay (1900)

I. li. R. 25 Bom. 176

12. • Jurisdiction of Court— Suit

for rent of land in Gualior, defendant being resident

JURISDICTION— CO n<d.

2. CAUSES OF JURISDICTION— confi.

(a) Dwelling, Carrying on Business, ok Work-
ing FOR Gain — contd.

in British India — Place where defendant resides —
Civil Procedure Code 1882, s. 17. Held, that
a suit by a lessor against his lessee to recover
rent which had accrued due in respect of agricul-
tural land situated in Gwalior, the plaintiff being
a subject of the Gwalior State, but the defendant
a British subject resident in the district of Jhansi,
was properly brought in a Civil Court in the
district of Jhansi. Gurdyal Singh v. Raja of
Faridkot, I. L. P., 22 Calc, 222, referred to.
Bkujbal v. Nanheju . I. Ii. R. 19 All. 450

13.

Immoveable pro-

perty—Civil Procedure Code {Act XIV of 1SS2),
s. 16 — Varshasans charged on villages in Nizam's
territory and 'paid in the same territory — Suit to
establish title to a share in such varshasans. Plain-
tiffs filed a suit in the Court of the first class Sub-
ordinate Judge at Nasik to establish their right to
a certain share in two varshasans (annual allow-
ances). The allowances were charged on the rev-
enues of two villages in the Nizam's territory, and
paid to the defendants by the treasury officers at
Aurangabad in the same territory. The plaintiffs
alleged that the varshasans were granted to a com-
mon ancestor of the parties and enjoyed as joint
ancestral property, while the defendants contended
that the allowances were granted to their grand-
father as his exclusive property to descend to his
heirs, and that plaintiffs had no right to share in
them. Held, that the Nasik Court had no jurisdic-
tion to try the suit. The varshasans were immove-
able property, and there being a bond fide claim of
title to them, the claim should be determined ac-
cording to the law in force in the Nizam's domi-
nions. The suit should therefore be brought in the
Courts of the Nizam, in whose territory the varsha-
sans were granted and paid. Plaintiffs could not
claim a declaration of title or ask for a refund of the
allowances in a British Court, merely because the
defendants happened to be residents in British
territory. Keshav v. Vinayak . •'J

I. L. R. 23 Bom. 22

14.

Civil Procedure

Code, 1882, s. 16 — Pelief to he obtained by per-
sonal obedience of defendants — Property situate out-
side the jurisdiction of the Court in which the suit
is filed. — The proviso to s. IG of the Civil Procedure
Code (Act XIV of 1882) requires not only that the
relief sought should be entirely obtainable through
the personal obedience of the defendant, but also
that the defendant should reside v/ithin the jurisdic-
tion of the Coiu-t in which the suit is filed. Held,
therefore, that a suit for the determination of an
interest in immoveable property filed in a Court
within the jurisdiction of which the property
was not] situate did not lie in that Court, as all
the defendants did not reside within the jurisdiction
of that Court, even though the relief sought could

( 6005 )

DIGEST OF CASES.

( 6006 )

JimiSDICTIOK--co»W.

2. CAUSES OF JURISDICTION— conJd.

(a) Dwelling, Caerying on Business, ob Work-
ing FOR Gain — contd.

have been obtained through their personal obe-
dience. IsAK V. Khatija I. L. E. 23 Bom. 756

15.

Suit to establish

right to a share in certain income — Proyerty having
a foreign origin — Incomes received within the
jurisdiction of the Court — Question of title not involv-
ed— Civil Procedure Code, ss. 16 and 17. All pro-
perty having a foreign origin is not outside the
jurisdiction of a British Court. " The Courts of
equity in England are, and always have been, Courts
of conscience, operating in fersonam and not in rem
and in the exercise of this personal jurii-diction they
have always been accustomed to compel the perform-
ance of contracts and trusts as to subjects wliich
were not either locally or ratione domicilii within
their jurisdiction." The jurisdiction of Courts in
India is governed and must be ascertained by the
same principles except so far as they may be at
variance \\ itli legislative enactment. Euing v. Orr
Ewiiu/.L. E.y Ap. C'rt. 2 J, followed. The plaintiff
sued in the Court at Nasik in British India to estab-
lish his right to a share in the income derived from
certain grants of land situate outside of British
India, but received by the defendant within the
jurisdiction of the Nasik Court. Held, that the suit
was within the jurisdiction of the Court there being
no dispute as to title. Keshav v. Vinaijak, I. L. R.
23 Bom. 22, distinguished. Kashinath Govind v.
Anatht Sitaramboa I. L. R. 24 Bom. 407

16.

Kesidenee alternately in

Calcutta and mofussil. ^ paily spending his
time alternately in the mofussil and Calcutta and
resident in the latter for some days previous to,
and on the day of, filing his plaint, is subject to
the jurisdiction of the High Court in its ordinary
original civil jurisdiction. Nishadiney Dossek v.
Cally Kristo Ghose . . . Cor. 24

17. Temporary residence for

pleasure — Person without residence elsewhere.
That a temporary residence in Calcutta, for pur-
poses of pleasure, with intention of remaining
there a month, without having at the time a resi-
dence out of the jurisdiction, is a sufficient dwelling
within the jurisdiction to satisfy cl. 12 of the
Charter. Morris v. Baujigarten

Bourke O. C. 127 : Cor. 152

ilAYHEW V. TULLOCH . 4 M". W. 25

18. Eesidence out of jurisdic-
tion— Bringing suit for damages by collision.
One who sues for damages caused by a collision
at sea and out of the jurisdiction of the High Court
subjects liimself to a cross suit for damages caused
by the same collision, though himseh" residing oat of
the jurisdiction of the Court. Bombay Coast and
River Steam Navigation Company v. Hei-epx
4 Bom. O. C. 149

JURISDICTION— <-o«W.

2. CAUSES OF JURISDICTION— conW.

(a) Dwelling, Carrying on Business, ob Wobk •
iNG for Gain — contd.

19. Pakki Adat Agency— PZace

of performance of contract by Pakki Adatija— Cus-
tom. K, a Bombay merchant, employed S as his
agent at Akola on the pakki adat system. On
Z's instructions S entered as his agent into certain
contracts at Akola. On an agency account being
taken a sum of money Mas found to be due from
S to K On K suing for this sum, S pleaded that
the High Court at Bombay had no jurisdiction to
hear the suit on the ground that no part of the cause
of action had arisen in Bombay. Held, in the case of
Pakki Adat agency primarily the place of payment
is the place where the constituent resides, but pay-
ment should be made in any other place if the
constituent has chosen to give directions to that
effect and that the High Court at Bombay had juris-
diction to try the suit. Per Chandavarkar, .J. —
A pakki adatya's liabilitj- ceases ^hen hard cash
has come into the hands of his constituent. Kedar-
MAi. V. SuRAOM.vL (1909) . I. L. R. .33 Bom. 364

20. Carrying on business —

Suit against Government — Residence or /lace of
business of Government. In a suit for specific per-
formance of a contract against Government where
the land was situated out of the limits of the
ordinary original jurisdiction of the Court : — Held,
that, the land being so situate, the Court could not
be said to have jurisdiction by reason of the Secre-
tary of State as the representative of the Govern-
ment " dwelling " or carrying on business or " per-
sonally working for gain " within the local limits of
the Court, in the meaning of cl. 12 of the Letters
Patent. The words " personally working for gain "
were intended to give the Court jurisdiction o\er
individuals only. Though Government is in one
sense, through its officers, ubiquitous, s. 05 of 21 and
22 ^'ict., c. lOfi, means not that the Secretary of
State may sue or be sued in any Court irrespective
of all question of jurisdiction, Init that he may sue
or be used in such court or courts as may have
jurisdiction in respect of each particular cause of
action. Rundle v. Secretary of Static

1 Hyde 37

21. Suit against

Government — Civil Procedure CoJe, 1S59, s .5 —
Letters Patent, cl. 12. Semhle : The jurisdiction to
entertain suits against the Government under s. 5 of
Act \I1I of 1859 exists only vhcre the cause of
action arose. Under cl. 12 of the Letters Patent
(1862) constituting the High Court of Madras, the
Government must be considered as carrying on busi-
ness at the place where its members e.^ercise all the
functions of Government The words " carr^' on
business " in that clause imply a personal and
regular attendance to business within the local
limits. A suit will not lie in the High Court against
the Collector of Madras residing and carryng on

) business at Sydapet in respect of matter3 arising in

(: 6007 )

DIGEST OF CASES.

( 6008 )

JTJIIISDICTION conW.

2. CAUSES OF JURISDICTION— con<<^.

{a) Dwelling, Cabrying on Business, or Work-
ing FOR Gain — contd.

Chingleput though his Deputy Collector carried
on business within the local limits, and the orders
and preccedings in reference to the matters in
(juestion were in his name of office as Collector
of Madras. Stjbharaya Muhalt v. Government

1 Mad. 286

22. ■ Letters Patent,

cl. 12 — Secretary of State for India in Council. The
words " cause of action " in cl. 12 of the Lf^tters
Patent, 1865, mean all those things necessary to
give a riaht of action ; and in a suit for breach
of contract, where leave has not been obtained
to sue under that section, it must be established
that the contract as well as the breach have taken
place within the local limits of the Court. The
work carried on by the Government or India in
govering the country in salt, opium, etc., although
carried on by Government officers in charge of
the several departments of Government, is not,
properly speaking, business carried on by
Government, but work carried on for the benefit
of the Indian Exchequer. The words of cl. 12
" carry on business " or " personally work for gain "
are, however, inapphcable to the Secretary of
State for India in Council. Doya Nakain Tewary
V. Secretary of State for India

I. L. B. 14 Calc. 256

23. - Civil Procedure

Code, 1877, s. 17 — Redding — OnxLS prohandi.
Where the cause of action arises in the jurisdiction
of a Court other than that in which the suit is
brought, the plaintiff must, under the provisions
of g. 17 of Act X of 1877, show that the defendant at
the time of the commencement of the suit actually
and voluntarily resided or carried on business, or
personally worked for gain, within the jurisdic-
tion of the court in which the suit was brought.
MoDHxr Sudan Chowdhry v. Cochrane

6 C. L. E. 417

24. . - Letters Patent,

cl. 12 — Temporary stay and office in Calcutta. — A,
who had no regular office, but came once or twice
a week from the mofussil to a friend's house in
Calcutta, and saw people there on business, contract-
ed with B in Calcutta for the hire of certain cargo-
boats. While being towed by a steamer, which A
had chartered according to agreement, the boats,
when beyond the jurisdiction of the Court, sustained
great damage by reason of gross negligence on the
part of C, whom A had placed in charge. Held, (i)
that the cause of action did not arise in Calcutta ;
(i ) that A " carried on business " in Calcutta within
the meaning of cl. 12 of the Charter. Greesh
Chunder Baneejee v. Collins 2 Hyde 79

Letters Patent,

JURISDICTION— coMi'i.

2. CAUSES OF JURISDICTION— cow^d

(a) Dwelling, Carrying on Business, or Work-
ing for Gain — contd.

resided at Mussooiie from March to October, but
attended races at Meerut. Calcutta, and[else where, at
which races he ran horses, but not for gain. B had
no pursuit or occupation other than that afforde I by
his horses. He had come to Calcutta to attend a
race meeting, and had been living in Calcutta for
some days previous to and on the day the plaint was
filed. The Court decided that he was amenable to its
jurisdiction. Held, that such racing transactions
do not constitute a " carrying on business " or
" personally working for sain " within the meaning
of cl. 12 of the High Court Charter. Morris v.
Baumgarten. Bourke O. C. 127 : Cor. 152

Mayhew v. Tulloch . . 4 N. W. 25

26. Letters Patent,

cl. 12. A trader in the mofussil habitually sent grain
to Madras for sale by a general agent for the sale
of goods sent to him by different persons. On some
occasions the trader himself accompanied the loaded
bandies. Since his death the first defendant, his
widow, carried on his business. The grain so sent for
sale was never stored, but remained in the bandies
until sold by the agent, who acted himself as broker,
the purchasers paying his brokerage commission,
and the consignors of the grain paying nothing. Held,
that the first defendant did not ■ carry on business "
within the jurisdiction of the High Court of Madras
within the meaning of el. 12 of the Letters Patent.
Chinnamal v. Tulukannatammal 3 Mad. 146

27.

Letters Patent,

cl. 12 — Temporary residence. M, residing at Meerut
sued B in respect of a cause of action which did not
arise in Calcutta. It appeared that B usually

cl. 12. The defendant resided and carried on business
in London, and employed C F d.- Co. as their com-
mission agent in Bombay. The plaintifls at Bombay
executed a power of -attorney in favour of the defend-
ants to enable him to sue in England for certain
money due to the plaintiffs, and handed the power-of-
attorney to C F <L- Co., who undertook to forward it
to the defendants in London, and that the defendants
should endeavour to recover the money so due to the
plaintiffs. The defendants recovered the money in
England for the plaintiffs, but did not transmit it to
the'plaintiffs in Bombay. In a suit brought by the
plaintiffs to recover the money so received by the
defendants, it was held that the cause of action had
not arisen wholly in Bombay and that the High
Court, under cl. 12 of its Letters Patent, had no
jurisdiction to entertain the claim, the leave of the
Court to. file the suit not having been obtained.
Where an English firm, upon the usual terms,
emx'loys a Bombay firm to act as the English firm's
commission agents in Bombay, such P^nglish firm
does not thereby render itself liable to be sued in
the High Court of Bombay, as it does not carry on
business within the local jurisdiction of such High
Court within the meaning of the above clause of
the Letters Patent. Khimji Chaturbhuj v.
Forbes . . 8 Bom. O. C. 102

( 6009 )

DIGEST OF CASES.

( 6010 )

J U RISDICTION— ronW.

2. CAUSKS OF JURISDICTION— cowW.

(a) DwELLiK(j, Caerying on Business, or Work-
ing FOR Gain — conid.

28.

1865, cl. 12

Patent,

Suit on hundi. The defendant, who
resided and carried on business at Patna, was in the
habit, several times in the course of the year, of send-
ing goods to Calcutta bj' boat and coming down him-
self by rail ; he received his goods and remained in
Calcutta until he sold them. He had no place of
business, nor any gomastah or agent of his own in
Calcutta, but used to tell the goods himself, and put
up sometimes at one arut, sometimes at another.
His stay in Calcutta varied from two to four months.
He used to pay commission on the goods sold to the
arut where he put up, and he was in the habit of
drawing hundies at Patna on himself at Calcutta, ac-
cepting and pa.ving them in Calcutta. The plaintiff
brought a suit on a hundi so drawn, and purporting
to he so accepted by the defendant, of which pay-
ment was refused by the defendant. The defendant
admitted the drawing of the note, but alleged that
the acceptance was forged. The Judge found that
the note had not been accepted by the defendant.
The summons was served on the defendant in Cal-
cutta. Leave to institute the suit had not been
obtained under cl. 12 of the Letters Patent. Hdd,
that the whole cause of action did not arise in
Calcutta. Held, also, that the defendant was not,
at the commencement of the .suit, carrying on
business in Calcutta within cl. 12 of the Letters
Patent. Leave to institute the suit under cl. 12
not having been obtained, the Court had no
jurisdiction to entertain the suit. Harjiban
Das v. Bhagwan Das

7 B. L. E. 102 : 16 W. R. O. C. 16
Held, on appeal, reversing the decision of the Court
below, that the defendant was " carrjdng on busi-
ness " in Calcutta within cl.l2 of the Letters Patent.
Haejiban Das v. Bhagwan Das

7 B. li. E. 535 : 16 W. E. O. C. 16

29. ^ Letters Patent,

cl. 12. A defendant does not " carry on business "
so as to come within cl. 12 of the Letters Patent of
the High Court of Bombay and render himself
subject to the ordinary original civil jurisdiction of
that Court, though he may have an agent at
Bombay for certain purposes connected with his
business,where that which is tlie essential ingiedient
in his business does not take place within the local
limits of the jurisdiction of the Court. A retail
dealer in European goods residing and carrying on
business at an up-country station is not within the
jurisdiction of the High Court on the ground that
he has an agent in Bombay for the purpose of pur-
chasing and forwarding goods to be used in his
trade. Framji KLavasji v. Hormasji Kavasji
1 Bom. 220

*'' 30. Carrying on business by

agent —Letters Patent, cl. 12. Cl. 12 of the
Letters Patent of the Madras High Court does
not, in order to give jurisdiction, require a defend-

JUEISDICTION-con/d.

2. CAUSES OF JURISDICITON— conid.

(a) Dwelling, Carrying on Business, or Work-
ing FOR Gain — conld.

ant personallv to carry on business within the
local limits of Madras. Muthaya Chetti v.
Allan . . . I. L. B. 4 Mad, 209

31. Hirjh Court of

Bombay, Jurisdiction of — Letters Patent, High
Court, 186-', cl. 12 — Persons not British subjects
resident outside the jurisdiction, but currying on
business by an agent within the jurisdiction—
British subjects resident outside the jurisdiction,
but carrying on business by an agent within the juris-
diction— Cause of action arising u-holly outside the
jurisdiction. In cl. 12 of the Letters Patent, 1865,
of the Bombay High Court, the words '• if the
defendant . . shall . . carry on business "

must be interpreted to mean " if the defendant
being a British subject . . . .shall
carry on business " and where the liability of a
foieigner is in question, the " carrying on business "
must include actual residence. The scope and
object of cl. 12 of the Letters Patent was to define
the jurisdiction of the Municipal Courts of India.
It must therefore be read by the light of the general
principal jurisdiction, save so far as it expressly
derogates from their general principles. Every
statute is to be interpreted and applied so far as its
language admits so as not to be inconsistent with
the comity of nations or with the established rules
of international law. All legislation is, prima facie,
territorial. It binds all subjects of the Crown,
but only such subjects of other countries as have
brought themselves witliin the allegiance of the
Sovereign. A person not a British subject resident
out of the jurisdiction, but carrying on a branch
business in Bombay through an agent, is not liable
to be sued in the High Court of Bombay where the
cause of action has arisen wholly outside the juri.s-
diction. Semlle : The High Court has jurisdiction
in such cases where the defendant is a British
subject. See Chinammal v. Talnkannainrnal, 3
Mad. 146 Kessowji Damodak .Iaikam r.
Khimji Jaibam I. L. R- 12 Bom. 507

32. - -- Foreigner carry-
ing on business by agent. Per Sargent, C.J. —
Although it is true that a non-British subject who
does not personally carry on business within the
territorial hmits of the Court does not make himself
personally subject to the municipal law of British
India, still, by establishing his business in British
India, from which business he expects to derive
profit, he accepts the protection of the territorial
authority for his business, and his j^roperty resulting
from it,''and may be fully regarded as submitting
to the Courts of the country. Gibdhardamod/r
V. Kassigar Hiragar i. L. E, 17 Bom. 662

33^ Civil Procedure

Code, 1882, s. 17 — Suit on a foreign judgment —
" Carrying on business " within the jurisdiction —
Business carried on by the managing member of
a Hindu family — " Principal and agent " with

( 6011

DIGEST OF CASES.

( 6012 )

JXTRISDICTIOW— confi.

2. CAUSES OF JURISDICTION— con<(i.

(a) Dwelling, Carrying on Business, or Work-
ing FOR Gain — conld.

reference to s. 17 of Civil Procedure Code—Appli-
cationofs. 17 of Civil Procedure Code to non-resident
foreigner. Plaintiff, having obtained judgment
against defendant in a suit on a bond in the
Civil Court at Pondicherry, sued him on the said
judgment in a district Court in British India. The
date of theforeign judgment was 20th March 1896,
and that of the suit in British India, 9th October
1806 ; but in the meanwhile, namely, on 20th July
1896, defendant had been declared an insolvent in
Pondicherry, and a syndic hadbeen appointed to take
charge of and administer his property. The ground
of jurisdiction relied on by plaintiff was that defend-
ant was carrying on a business within the jurisdic-
tion of the District Court, the said business being
■conducted by his cousin ; and that, the cousin being
the manager of a Hindu family, the presumption
was that the business was cariied on with the consent
■of the defendant as well as for his benefit. Held,
that the District Court had no jurisdiction to enter-
tain the suit. Inasmuch as defendant and his cousin
had, as a fact, become partially divided prior to
the commencement of the business, and as there
was no evidence of his consent, the presumption
contended for could not arise. But even if the facts
had been otherwise, and the defendant had been
■entitled to claim an interest in the business on the
ground that it was carried on by one who was the
managing member of his family at the time, defend-
ant would not be " carrying on business " within
the meaning of s. 17 of the Code of Civil Procedure.
To bring a "principal within the operation of s. 17,
the person a'cting as the agent within the jurisdic-
tion should be an agent in the strict and correct sense
of the term. Semble : That a member of joint family
who actually consents to a trade being carried on
within the jurisdiction on his behalf, or by his con-
duct puts himself in the position of a joint trader,
carries on business witliin, though he may live out-
side,the jurisdiction. Quaere : Whether s. 17 of the
Code of Civil Procedure should be construed so as
to exclude from its operation non-resident foreigners,
even though they carry on business in British
India through agents ; and, if such construction
be inadmissible, whether the said section of the
Indian Legi.«lature should be held with reference to
such foreigners to be ultra vires. Mitkugesa
Chetti v. Annamal.m Chetti

I. L.B. 23 Mad. 458

34. Personally working for

gain — Suit to recover value of timher. A suit to
recover the value of timber alleged to have been
forcibly carried oft by the defendants from a ghat in
the district of Tirhoot having been brought in the
Court of the Subordinate Judge of the 24-Pcr-
gunnahs, that Court was held to have jurisdic-
tion in the case, on its being shown that one of the
defendants, at the commencement of the suit, per
Bonally worked for gain within the limits of the

JU RISDICTION— conW.

2. CAUSES OF JURISDICTION— cowW.

(a) Dwelling, Carrying on Business, or Work-
ing FOR Gain — conoid.

24-Pergunnahs.
MUN Singh
35.

Motee Dossee v. Deeta Huruk-
11 W. R. 64

_ Cause of action

— Civil Procedure Code, 1859, s. 5— Jurisdiction-
Suit for breach of contract. When a person residing
at Benares made an agreement at Allahabad with a
barrister to conduct his case for him, which was then
pending in the Court of the Judge of Benares, and it
was alleged that an advance of fees had been paid on
the specific condition that such advance was to be
returned in the event of the barrister not appearing
on behalf of the party engaging him, or of his doing
no work for him, or of the case being decided in his
absence, and it was further alleged that the hamster
did not appear at the hearing of the case, and that it
was decided in his absence, and that the advance of
fees had not been returned:— ^eZrf, in a suit for the
recovery of the moneys advanced as aforesaid, that
the cause of action arose at Benares. If the alleged
condition was not comphed with, and the fees -
thereby became returnable to the client, it would
have been the duty of the barrister to have sought
out his creditor at Benares and to have paid him
there, or have remitted the money to him. Semble :
That a member of the Bar of the High Court resid-
ing out of the station in which the High Court is
located, but who holds himself out as ready to
practise in the High Court, and who goes to the High
Court whenever he is engaged to appear there, is
one who " personally words for gain " inside of the
limits of the station in which the High Court is
located within the meaning of s. o. Act VIII of 1859.
Rai Narain Dass v. Newton 6 N. "W. 43

(b) Cause of Action.

36. General cases — Civil Pro-
cedure Code, 1S59, s. 6— Act XXIII of 1S61, s. 3.
A Gvil Court has jurisdiction to determine a suit
where the defendants dwell, or the cause of action
arises, within the jurisdiction. The two quahfi-
cations need not exist together. Act XXIII of
1861, s. 3, requires the absence of both to justify
the dismissal of the suit for want of jurisdiction.
Morris v. Atmakueu Lutchmana Row

6 Mad. 43

Anonymous Case
37.

5 Mad. Ap. 4

Letters Patent

cl. 12 — Cause of action partly arising — Leave of
Court. Under cl. 12 of the Charter of the High
Court, 1865, when the cause of action arises only
partly within the local limits, the leave of the Court
must be obtained before the institution of the suit.
Abdul Hamed v. Promotho Natu Bose

1 Ind. Jur. N". S. 218

Suit for sum •

up of items as to which cause of action arose in different
places — " Whole cause of action." An application

( 6013 )

DIGEST OF CASES.

( 6014 )

JURISDICTION"— cow/J.

2. CAUSES OF JURISDICTION— conid.

(b) Causk 0¥ Action — conid.

was refused for leave to commence a suit in the
original side of the High Court, to recover a sum
which was made up of various items, with respect
to some of which the cause of action arose in Madras,
but as to the great bulk of the claim, the cause of
action arose elsewhere. Upon appeal the decision
was sustained. Per Bittleston, J. — The High
Court, especially when exercising its ordinary
original jurisdiction, is bound to adopt the inter-
pretation of the words " cause of action " and " part
of the cause of action " laid down with general, if
not complete, uniformity under the English County
Court Act. The cause of action means the whole
cause of action. The whole cause of action in-
cludes every fact essential to the maintenance of
the action, and each of those facts separately is but
a part of the cause of action. The Charter of the
High Court refers to a cause of action arising wholly
or in part within the local hmits. The cause of
action spoken of may consist of several i)arts, which
parts may arise in different places. Per Holloway,
J. — The High Court is not bound by the definition
of cause of action derivable from the English cases.
Where there is a manifest discordance between a
decision of the Judicial Committee of the Privy
Council and the Common Law Courts at West-
minster, the decision of the Judicial Committee is
entitled to the greater weight. Irrespectively of the
domicile of the defendants, there is a competent
forum wherever a place can be indicated to which
the right and its infraction can both be referred, be-
cause there is a cause of action and the whole cause
of action. De Sotjza v. Coles . 3 Mad. 384

39. ■ Evidence as to

jurisdiction at hearing — Letters Patent, High Court,
cl. 12 — Suit for rent of house out of jurisdiction
and for price of goods sold by defendants in Calcutta
as agents — Amendment of plaint to cause of action.
The plaintiff as Receiver to the estate of S instituted
a suit on the 11th July 1898 against the defendants
to recover the sum of R2,8()8-]3-2, a portion of the
said sum being the rent of a house occupied by the
defendants at MandaUy since January ] 894 till the
11th July 189S,the remaining portion being the price
of goods sold by the defendants as agents of S. The
plaintiff at the institution of the suit obtained leave
under cl. 12 of the Charter. The defendant contend-
ed that the Coiu-t had no jurisdiction, inasmuch
as the plaint on its fare did not show that the cause
of action or any part of it arose in Calcutta ; that the
cause of title alone represented the defendants as
carrying on business in Calcutta, and that portion of
the i^laint was not verified ; nor could the plaintiff
give evidence to prove that his cause of action arose
in Calcutta, as it v.ould be varying the cause of ac-
tion, and that fresh leave would have to be granted,
which could not be done in this suit. H^eld, that the
Court had jurisdiction, and the plaintiff was entitled
to give evidence at the hearing to show that his
cause of action arose in Calcutta To admit evidence

JURISDICTION^ori^^Z.

2. CAUSES OF JURISDICTION— con/c?.

(b) Cause of Action — contd.

of that fact, and, if necessary, amend the pl.unt by
adding a statement that part of the cause of action
did arise in Calcutta, does not cause a variance in the
original cause of action. It is sufficient to show that
tiie cause of action or part of it arises in Calcutta
when the suit comes on for h^arins. {'"ink v.
BuLDEO Dass . . I. L. R. 26 Calc. 715

3 C. W. W. 524

40.

Leave to withdraw

suit with liberty to bring fresh suit — Civil Procedure
Code {Act XIV of 1S82), s-". 373, 374--Leave
to Stic— Letters Patent, 186''>, rl. 12 —Limitation
— Limitation Act (XV nf 1S77), s. 14. Where a suit
was originally instituted in this Court, with leave
under clause 12 of the Charter obtained from the
Registrar, and subsequently the plaint was returned
to the plaintiffs, leave being given to them by the
Court to withdraw the suit and to file a fresh suit on
the same cause of action, and, the plaint was
presented again : Held, that the order giving leave
to withdraw the suit was ultra vires and could
only be regarded as one directing the
l^laint to be returned to the plaintiff. Watson v.
The Collector of Rajslmliye ; 13 Moo. I. A. 160,
followed. S. 373 of the Code of Civil Procedure
does not apply except to cases where the suit is
properly proceeding in the Court, in which the
leave was granted. Held, further, that the suit
was covered by s. 14 of the Limitation Act. and
not barred. Ramdeo Dass v. C4oxesh Naraix
(1908) . . I. L. R. 35 Calc. 924

S.C. 12 C. W. W. 921

41. ■Account, l[suit^' for— Letters

Patent, cl. VI — Leave to sue — Part of the cause
of action material. The plaintiff and the second
defendant were the owners of a family business
which was carried on by munims in Bombay,
Cutch and Zanzibar. The first defendant was
for many years the munim in management of
the business at Zanzibar. Tliis suit was brought,
praying that an account might be taken of the
management by the first defendant of the business
at Zanzibar, and that in taking such account
the first defendant might be charged with all
sums misappropriated by him, or lost by his
neglect or fraud. The second defendant was
joined as a defendant merely because he refused
to join as a plaintiff. The plaint instanced various
acts of misappropriation and neglect and fraud on
the part of the first defendant, some few of which
were said to have been effected by means of transfer
and other entries made in the books of the Bombay
firm on instructions sent by the first defendant from
Zanzibar. At the time of filing the suit the leave
of the Court, under cl. 12 of the Letters Patent, was
obtained. On a summons taken out to rescind
such leave : — Held, that the leave given must be
rescinded, no such material part of the cause of
action having arisen in Bombay as would justify

( 6015 )

DIGEST OF CASES.

( 6016 )

JURISDICTION— co»<r/.

2. CAUSES OF JURISDICTION— conW.

(6) Cause of Action — contd.

this Court, in transferring to itself a case which
prima facie ought to be tried elsewhere. Ismail
Hadji Huhheeh v. Mahomed Hadji Joosuh, 13 B.
L. B. 91, referred to. KessoWJI Damodar
Jairam v. Luckmidas I.adha

I. li. R. 13_Bom. 404

42. — Cause of action

arising on items of acconnt — Civil Procedvre Code,
1859, s. r,—Act XXIII of 1861, s. 4. In the Civil
Court of Berhampiir, plaintiffs sued defendants for
money due by one S, deceased. Defendants 1, 2, ;»,
and 4 were sued as heirs of the deceased ; the fifth
defendant as having instigated the other defendants
to withhold payment. The first defendant resided
at Yizagapatam, second at Bimlipatam, third and
fourth at Madras. The fifth defendant resided at
Berhampore. From the accounts produced, it
appeared that there were, between the plaintiffs
(n erchants at Berhampore) and deceased (a mer-
chant at Madras), a series of transactions of different
kinds, in which they acted sometimes as principal
and sometimes as agent, the one for the other. Held,
that, although in the account sued upon there were
some items which, if they co\xld be separated from
the rest, would gi\e a cause of action within the
jurisdiction of the Berhampore Court, they could
not be so separated, and that the intention was that
the dealing should be continuous ; that upon that
footing the plaintiffs had properly sued for the
balance of the whole account, but that they had
brought their suit in the ^\Tong Court, because
the whole cause of action did not arise with-
in the jurisdiction of that Court, and none of the
defendants, ^\•ho were properly joined in the suit,
dwelt or worked within that district. Held, also,
that the wrongful addition of the resident defendant
could not bring the case under the operation of s. 4,
Act XXIII of 1S61, and that the cause of action
against the fifth defendant was totally distinct
from that alleged against the others, and the two
could not be joined in one suit. Atmakuri
Bhavana Sbtti v. Sajnyasi Setti 3 Mad. 222

43. . Civil Proceduie

Code, 1859, s. 5 — Place of makinij and performance
of contract different. B entered into a verbal agree-
ment with A at Serarnpore, where A residerj, to
start in Calcutta a certain banianship business in
conjunction with A's son ; A agreeing to advance
the required funds on the condition that the sum
advanced should be repaid him within a certain date
with interest. No place was fixed for repayment.
The money was advanced partly at Serampore and
partly in Calcutta. B afterwards Avent to reside at
Chandernagore. In a suit by A for recovery of the
balance of the sum advanced, brought in the Hoogbly
Court, the .fudge held that he had no jurisdiction,
inasmuch as the cause of action arose in Calcutta.
Held, on appeal, that, under s. 5, Act VIII of 1859,
the Hooghly. Court had jurisdiction to try the suit!

JURISDICTION— conW.

2. CAUSES OF JURISDICTION— cowtd.

(&) Cause op Action — contd.

Per Markby, ,/. — An action may be brought either
in the forum of the place where the contract was
made or in that where the performance was to have
taken place. Quoire : Whether this rule would
apply if both ])arties were, at the time the contract
was made, in a district vhere neither of them had
any duelling or place of business. Per Birch, J. —
When no place for the performance of a contract ia
prescribed by the agreement, or exacted by the
necessities of the case, the place where it is intended
by the parties such contract should be fulfilled
ought to supply the foium. Goptkrishna Gossami

V. NiLKOMUL BaNERJEE

13 B. L. R. 461 : 22 W. R. 7&

44. Agreement to

repay balance sttuck. Where a balance was struck
and an agreement to repay the balance was drawn
out at Cawnpore : — Held, that the Cawnpore
Court had jurisdiction to entertain a suit on that
agreement, and its jurisdiction was not affected
by the fact of the transaction, in respect of
w hich the agreement was given, having happened
elsewhere. Haim Raj v. Ram Bux 1 Agra 115-

45. ^ _ Place of paij-

ment not specified. — D & Co., carrying on business
at C, shipped goods to London for sale on account of
P D and advanced money to P D against the
shipments. P D promised to pay the difference if
the amount realized by the sales in London fell short
of D tfc Co.^s advance, costs, and commission. No
place of payment was specified. Held, in a suit
to recover money due on account of such short falls,
that the whole cause of action arose at C, where D
rf- Co. carried on business, where the promise vi&h
made, and where the money must be taken to have
been paj'able. Darragh & Co. ?•. Purshotam
Deveji . . I. Ii. R. 4 Mad. 372.

46. . Residence hij

agents — Joinder of caa-^es of action. The right to
join in one suit to causes of action against a defend-
ant cannot be exercised, unless the Court to which
the plaint is presented has jurisdiction over both
causes of action. The defendants, who resided and
carried on business at Bombay, acted as the agents
of the plaintiff for the sale, purchase, and despatch
of goods to Tellicherry, where the plaintiff resided.
The plaintiff sued the defendants for money due
on account of the tran.-actioi s in Teliicherrv. Held,.
that no cause of action aro.-e in TelKche:ry.

KhIMJI JiVRAJU ShETTU v. PirHUSHOTAM Jt^TAXT

I. L. R. 7 Mad. 171

47 Venue— Act X of

1859, s. 24 — Suit by zamindar against manager of
two estnte-<. The defendant was appointed a super-
intendent of two estates, one called Chulman, w ith-
in the subdivision of Diamond Harbour, and the
other Alipore, w ithin the subdivision of Alipore. By
his kabuliat he agreed to make good any retrench-
ments his employer, the zamindar, might make in

( 6017 )

DIGEST Of CASES.

JURISDICTION— confcZ.

2. CAUSES OF JURISDICTION— coflid.

(6) Cause of Action — contd.

his accounts. Some retrenchments were made, and
to recover the balance which appeared due the za-
niindar brought this suit. Held, that, as the defend-
ant had agreed by his kabuliat to make the princi-
pal kutchery his place of business, and as both the
plaintiff and defendant agreed that the cause of
action arose in the principal kutcherry, and as it was
the place to which all the moneys were remitted,
and where aL the accounts were prepared, and the
money first came under the control of the defendant,
and was by his order disbursed, the cause of action
arose in the district within the princi[)al kutcheiry
iiy. Prasanna Chandra Busf v. Pkasanna
Chandka Haj 7. B. L. R. Ap. 35

15 W. R. 343

48.

Account suit

valued at less than ten thousand rupees before Munsif
— Final decree exceeding pecuniary limit- — Appeal —
Preliminari/ decree — Final decree — Civil Procedure
€ode (Act XIV of 1882), ss- 108 and 591— Court Fees
Act ( VII of 1870), s- 7, paras. 4, 5, 6, 9 and lO—SuHs
Vahiatimi ActiVII of 1887), s. 8— Bengal, N. W.
P. and Assam Civil Courts Act {XII of 1887),
s. 19. In a suit for accounts and recovery of
papers brought before a Munsif who had pecuniary
jurisdiction to try suits up to K 1,000 in value, the
claim for recovery of papers was valued at R50 and
that for accounts at H.150, with a prayer that addi-
tional court-fees would be paid for any amount to
be found due in excess ; after the preliminary decree
the amount due was ascertained to be R8,424 .-
Uekl, that the plaintiff cannot obtain a decree for
a sum above R1,000, i.e., in excess of the Hmit of the
Munsif 's pecuniary jurisdiction. That the plaintiff
ought to be called upon to rehnquish the excess and
thus place the case formally within the pecuniary
juriscUction of the Court of his dehberate choice or
the Court may in such a case remit the excess or
presume the excess to be remitted. Rameswar v.
Dilu, I. L. R. 21 Cal. 550, Arogija v. Appachi,
L L. R. 25 Mad. 543, distinguished. Gol.\p
SiNCH V. Ijidra Coomar Hazra (1909)

13 C. W. N. 493

^^' 'z~. — Agreement — Part of cause

■'I action arising in jurisdiction — Suit on agree-
!'t executed within jurisdiction — Place for pall-
ia of moneij under deed — Costs of preparing a
—Stamp duty. In December 1892, the plaint-
i'j:reed to supply the defendants with machinery
their mill near Calcutta. The defendants, being
i>lo to pay for it in accordance with that agree-
i . entered into a supplementary agreement with
plaintiffs on the 10th Auuust 1894, whereby it
arranged that the plaintiffs should accept shares
.the defendants' company and debentures charged
' 11 the property in satisfaction of their claim. The
agi cement provitled that the defendant company
should forthwith execute an indenture of trust, in
favour of trustees to be named by the plaintiffs, for
VOL. Ill

JURISDICTION- contd.

2. CAUSES OF JURISDICTION— co,i^.

(6) Cause of Av/nos—cantd.

the purpose of securing the said debentures, such
indenture to be prepared by the plaintiffs' soHcitors
together with the debentures at the expense of the
company and to be approved by the company's soh-
citors. It was lastly provided that this agreement
should be treated as forming part of, and supple-
mental to, the agreement of December 1892. This
agreement was signed in Bombay by J. Marshall on
behalf of the plaintiffs. The indenture and deben-
tures were duly prepared by the plaintiffs and
approved by the defendants' solicitors in Bombay.
The plaintiffs, having paid in Bombay the sohcitor's
bill of costs in respect of the preparation of the
indenture and debentures, now sued to recover the
amount from the defendants under the terms of the
above agreement of 1894. The defendants contend-
ed that the Court had no jurisdiction, on the ground
that they did not reside or carry on business in
Bombay, and that no part of the cause of action
arose in Bombay. Held, that the Court had juris-
diction. The agreement of August 1894 was signed
in Bombay by the plaintiffs' agent on their be-
haff, and therefore part of the cause of action arose
within the jurisdiction. Further, it appeared that
it was intended that the pa3^ment to be made by
the plaintiffs should be made in Bombay where
both the plaintiffs' agent and sohcitors resided.
Held, also, that the plaintiffs were entitled to in-
clude in their claim the stamp duty paid on the
trust-deed. The agreement contemplated that the
defendants should pay all the costs incidental to
the execution of the deed. Dobsox and Barlow
V. Bengal Spinning and Weavlxg Co.

I. L. R. 21 Bom. 126

50. Bond, suit on — Immediate

cause of suit — Civil Procedure Code, 1859, s. J. S. 5
of Act VII of 1859 gave jurisdiction to the Court
where the cause of action shall have arisen, or in
other words, where the facts which immediately
confer the right to sue have occurred. Where the
immediate cause of the suit was the non-payment of
money due on a bond : — Held, that the Court of
the place where default had been made in payment
had the jurisdiction to try the suit, and not the
Court within the jurisdiction of which the bond was
made. Prem Shook v. Bukekoo

3 Agra 242 : Agra F. B. Ed. 1874, 149

51.

Rtdidtncc.

boni was executed at Arrah, and provided that
payment should be made to plaintiff in person, and
though it described plaintiff and defendant as inha-
bitants of Patna, yet the plaintiff having been ad-
mittedly a resident at Arrah, at the time the bond
was executed and for some years previously : — Held,
that the intention of the parties was to make the
money payable at Arrah, and that consequentlj- the
Judo-e of Shahabad had jurisdiction. Nirban Singh
V. KuMLA Sahoy- . . . 17 W. R. 345

9 F

( 6019 )

DIGEST OF CASES.

( 6020 )

J URISDICTION— confer.

2. CAUSES OF JURISDICTION— «on«<i.

52.

(6) Cause of Action — contd.
Breach of contract — Con-

tract for sale and delivery of goods at fixed price
—Suit for price — Place of suing — Act X of 1877
(Civil Procedure Code), s. 17 (a). C and L entered
into an agreement at a place in the Sarun district,
in which the latter resided and carried on business,
whereby C promised to sell and deliver to L at a
place in the Sarun district certain goods, and
L promised to pay for such goods on delivery, " by
approved draft on Calcutta or Cawnj^ore (where C
carried on business), payable thirty days after the
receipt of the goods or by Government currency
notes " C delivered the goods according to his pro-
mise, but L did not pay for the same, and C there-
fore sued L for the price of the goods, suing him at
Cawnpore. Held, that the "cause of action," within
the meaning of s. 17 of the Civil Procedure Code,
was Vs breach of his promise to pay for the goods ;
that the parties intended that payment should be
made at Cawnpore, and the cause of action there-
fore arose there ; and that therefore the suit had
been properly instituted there. Llewhellin v.
Chunni Lal . . . I. L. R. 4 All. 423

53.

Civil Procedure

Code, 1882, s. 17 — Place of making of contract.
The expression " cause of action " as used in s. 17
of the Civil Procedure Code, does not mean whole
cause of action, but includes material part of the
cause of action. In a suit for compensation for
breach of a contract, the making of the contract is a
material part of the cause of action. Held, there-
fore, where a contract was made at C and broken at
A, that the Court at C had jurisdiction to try the suit
for compensation for the breach of such contract.
Lleivhellin v. Chunni Lal, I. L. R. 4 All. 423, and
Gopikrishna Gossami v. Nilkomul Banerjee, 13 B. L.
R. 461, followed. DeSouza v. Coles, 3 Mad. 384,
and Jumoonali Pershad v. Zaibunnissa, 5 C. L. R.
268, dissented from. Bishtjnath v. Ilahi Bakhsh
I. li. E. 5 AIL 277
54. _ Performance of

contract — Making of contract — Goods to he
at Bombay to the plaintiff at Karwar — Place where
cause of action arose. The plaintiff residing "at
Karwar sent a sum of money to K & Co. (defend-
ant No. 1), a firm at Bombay, asking them to send
him certain goods. K <t- Co. informed the plaintiff
that they had not the goods requii-ed by him. The
plaintiff thereupon telegraphed to them to pay the
amount to defendant No. 2, a resident of Bombay,
provided he shipped the goods. On the failure of
defendant No. 2 to ship the goods, the plaintiff
brought a suit against the defendants in the Court
at Karwar to recover the amount. He claimed
against K d; Co. (defendant No. 1) because they had
paid the money to the second defendant before the
goods were shipped, and against the second defend-
ant because he had not shipped the goods, although
he had received the money. The Court at Karwar

JURISDICTION— co»<«f.

2. CAUSES OF JURISDICTION— conic?.

(6) Cause of Action — conM.

was of opinion that Karwar was the place where the
contract was to be performed, and that therefore it
had jurisdiction to entertain the suit, and it passed
a decree against defendant No. 2. The claim as
against defendant No. 1 was dismissed. Held, re-
versing the decree, that the understanding on which
the money was paid to defendant No. 2hy K d; Co.,
and which was the agreement on which the plaintiff
sued, was that the second defendant would ship the
goods at Bombay to the plaintiff at Karwar. The
contract, therefore, as between defendant No. 2 and
K & Co., acting on behalf of the plaintiff, was both
entered into and intended to be i^erformed at Bom-
bay. The cause of action arose therefore in Bombay
and the Court at Karwar had no jurisdiction. Da-
dabhai Dajibhai v. Diogo Saldanha

I. L. R. 18 Bom. 4a

5 ■ Consignment and

sale of goods — Suit on failure to sell where agreedv
When goods were consigned for sale to Cawnpore
and the consignors sued for damages because the
goods were sold elsewhere, the cause of action arose
at Cawnpore on failure to sell them there, and not at
the place from which they were consigned. Deoek
NxjNDTjN V. OoMRAO SiNGH . . 2 Agra 248

56.

Non-delivery of

goods. The defendant at Purola agreed to sell and
deUver to the plaintiff certain goods for which the
plaintiff then paid in advance. By the terms of the
agreement, the goods were to be measured at Muzrod
and deUvered at Padshu. In default of dehvery, it
was stipulated that the value of the goods should be
paid for at the market rate at Purola. The goods
were not dehvered in pursuance of the agreement*
Held, in an action brought to recover their value at
the market rate at Purola, that the cause of action
arose at Padshu, where the goods ought to have been
dehvered. Chunilal Maniklalbhai v. Mahi-
PATEAV VALAD Khundu . 5 Bom. A. C. 33

57. Goods delivered

through carrier — Delivery at consignor's risk. A
sued B for goods sold in Madras and dehvered to B
personally outside the local hmits of the High Court's
original jurisdiction. B dwelt outside those hmits,
the goods were sent to him at his request, sometimes
by sea, sometimes through the post pflfice, but always
at A's risk during the journey. Held, that the suit
must be dismissed for want of jurisdiction. So long
as goods, though deUvered to a common carrier
appointed by the consignee, remain at the risk of the
consignor, they are not delivered to the consignee.
Winter v. Way .... 1 Mad. 200

58. Letters Patent^

cl. 12 — Non-delivery of goods. Plaintiffs contracted
at Cawnpore with the East Indian'Railway Com-
pany to deUver , goods in Madras. The East Indian
Railway does not run into the jurisdiction of the
Madras High Court. The Railway Company made

( 6021 )

DIGEST OF CASES.

( 6022 )

JURISDICTION-— ro«<f/.

2. CAUSER OF JURISDICTION— f07iW.

(6) Cause of Action — contd.

default in delivery of the goods, and the plaintiffs
sued them in the Madras High Court for damages for
the breach of contract. No leave to sue (under
cl. 12 of the Letters Patent) was obtained. The
Court of first instance dismissed the suit for want of
jurisdiction. Held, on appeal, following Gopikrishna
Gossami v. Nilkomid Banerjee, 13 B. L. R. 461,
and Vaughan v. Weldon, L. R. 10 C. P. 47, that
the breach of contract having taken place at Madras,
the cause of action had wholly arisen within the
jurisdiction of the High Court. Muhammad Abdul
Kadak v. E. I. RAn.wAY Company

I. li. K. 1 Mad. 375

59.

Part of cause

of action in jurisdiction. Where defendant, in
action for goods sold and delivered, pleaded want of
jurisdiction, inasmuch at the whole cause of action
did not arise within the jurisdiction, the Court found
that a material part of the cause of action had arisen
within the jurisdiction, and gave a decree for plaint-
iff, leaving it to defendant to dispute execution if so
advised. Doorgapbesad Bose v. Waters

1 Ind. Jur. N. S. 191

60.

Civil Procedure

Code, 1859, s. 5. By a contract entered into at
Beerpore, in the district of Nuddea, the plaintiff
agreed to supply indigo seed to the defendant, the
seed to be paid for on delivery by an order to be sent
to the plaintiff on receipt of the seed. The plaintiff
resided at Berhampore, in the district of Moorsheda-
bad, and the defendant carried on business at Beer-
pore in the district of Nuddea, where delivery was to
be made. The seed was deUvered by the plaintiff as
agreed, but the defendant refused to pay for it. In
an action brought in the Moorshedabad Court to
recover the price of the seed -.—Held, that the Moor-
shedabad Court had jurisdiction to entertain the suit.
The refusal of payment by the defendant, which
was to have been made in the district of Moorsheda-
bad, was a sufficient cause of action under s. 5, Act
yill of 1859, to enable the plaintiff to sue in that
Court. Semble : The words " cause of action " in
that section do not mean the whole cause of action.
Hills v. Clark 14 B. L. R. 367 : 23 W. R. 63

"■^* ~ Place of perform-

<^nce of contractus uit for price of seed. Plaintiff
uchvered to the defendant at the latter's factory at
( os-ipore fifty maunds of indigo ,^eed. It was agreed
that payment should be made at plaintiff's place of
business withm the hmits of the Munsif's Court at
Knshnagur. HM, that the latter Court had juris-
diction to entertain a suit for the price of the seed.

HURRI MOHUN MULLICK V. GOBURDHUN DaSS

3 C. L. R. 459

^ "T; \ — - — — — Whole cause of

, actian^Coiitract— Place of performance of contract
where no stipulation in contract^Leave to sue under
d. 12 of Letters Patent. By a contract executed

JURISDICTION- - contl.

2. CAUSES OF JURISDICTION-<or»«<;.

(6) Cause op Actiok — contd.

in Bombay on the 19th December 1885, the defend-
ant promised to pay the plaintiff fi9,152, of which
amount the sum of R4,752 was to be paid by monthly
instalments of R132 extending over a period
of three years, and the remainder, viz., R4,400,
in a lump sum at the end the three years. It was
provided that, in case of default being made in pay-
ment of any of the instalments, the whole of the
amount then due should be paid forthwith. The
plaintiff, alleging that the defendant had only paid
eight of the instalments, brought this suit for the
balance. The defendant, who did not dwell or carry
on business in Bombay, pleaded (inter alia) that the
High Court of Bombay had no jurisdiction, as the
whole cause of action had not arisen in Bombay,
and no leave to sue had been obtained by the plaint-
iff under cl. 12 of the Letters Patent. The written
contract, which was admittedly executed in Bombay
contained no stipulation as to where the instalments
or the final balance was to be paid. Held, that, in
the absence of stipulation in the contract itself, the
intention of the parties to it was to guide the Court
in determining the place of its performance. From
the facts and acts of the parties it appeared that their
intention was that payments under the contract
should be made at Surat. The breach of contract
consequently took place at Surat and not in Bombay,
and the High Court of Bombay had no jurisdiction
to try the suit, the plaintiff having omitted to obtain
leave to sue under cl. 12 of the Letters Patent. In
the case of an action on a contract the " cause of
action " within the meaning of cl. 12 of the Letters
Patent means the whole cause of action, and consists
of the making of the contract and of its breach in
the place where it ought to be performed. To give
jurisdiction to the High Court of Bombay, the
plaintiff must show that the contract was to be
performed, and that its breach took place there.
Dhunjisha Nusserwanji v. Fforde

I. L. R. 11 Bom. 649

63.

Sale of

Payment of proceeds. Wheve the plaintiffs and de-
fendants made consigments of a certain number of
bales of cotton belonging to each for the Mirzapore
market, and the cotton was unloaded and sold at
Cawnpore by direction of the latter, and the proceeds
vvere received by them at Jleerut, where they all but
one resided and credited to their accounts : — Held, in
a suit for damages, that the defendants, who ordered
the sale at Cawnpore and profited by the proceeds,
and not a defendant who resided at CawnjDore and
acted under instructions from the other defendants
were primarily Uable, and that the suit was cogniz-
able in the iMeerut Court. Luckhre Ram v. Mahani

Ram 1 Agra 10

64. . Advances made

for delivery of wood. Where the suit was brought
upon the defendant's breach to deliver wood in pur-
suance of the terms of the contract : — Held, that the

9 F 2

( 6023 )

DIGEST OF, CASES.

( 6024 )

JURISDICTION— cowfd.

2. CAUSES OF JURISDICTION— coMtci.

(6) Cause of Action — contd.

mere fact that an advance was made within the local
jurisdiction of a Court would not give that Court
jurisdiction in such suit. Ajoodhya Pershad v.
GobindRam .... 2 Agra 188

g5_ . ^ Contract for sale

o/ land— Suit for purchase-money. Where there is
a contract of sale of land, an action can ordinarily be
brought by the vendor for the purchase-money,
whether or not the Court in which the action is
brought has jurisdiction over the seat of the obliga-
tion which it 'is sought to enforce. Young w. Man-
GALAPiLLY Ramaiya ... 3 Mad. 125

66. ^ Suit for specific

performance or return of money — Land situated
williout local limits of jurisdiction. In consideration
of the loan of R4,000, the defendant agreed to exe-
cute a mortgage of certain land beyond the jurisdic-
tion of the High Court to the plaintiff, and agreed
to produce his title-deeds, and to make a good title.
In the agreement the plaintiff was d-^scribed as " of
Durmahattain the town of Calcutta, merchant,"
and the defendant as " of Panchthopy in Zillah
Beerbhoom, at present of Coomertooly in Calcutta."
In a suit for specific performance of the agreement
to execute the mortgage and in the alternative for
return of theB4,000: — Z/eZti, that, as the plaintiff
was described as of Calcutta, the defendant would
be entitled to redeem by paying the mortgage-
money in Calcutta, and that a money-decree could
be made. Sreenath Roy v. Cally Doss Ghose
I. li. R. 5 Calc. 82

67.

Contract, rati-

fication of — Contract relating to lands. A, on be-
half of her infant son B, contracted with C, that he
should be allowed, for the maintenance of her daugh-
ter whom he was about to marry, land situate at X,
that should yield annually R900. B, after coming
of age, contracted at Y to pay C the annual allow-
ance, and ratified the contract which had been made
by his mother. Held, first, that, although the con-
tract with B was entered into at Y, yet, as by that
contract he ratified the contract entered into by his
mother, and which related to lands at X, the Court
of X had jurisdiction in a suit for recovery of cer.-
tain of the yearly payments. Kishen Kinkur
Ghose v. Borodakanth Roy

Marsh. 533 : 2 Hay 656

68. Civil Procedure

Code (Ad XIV of 1882 ), s. 17 (a) and Expl. Ill (ii)
and {Hi) — Suit for price of goods delivered — Juris-
diction— Place of suing — Contract, suit arising out of
— Cause of action, where arises. Plaintiff, who resid-
ed at Samastipur in the Tirhoot District, having
indigo seeds for sale, advertised : " For sale : 300
mds. fresh indigo seeds at R3-8 per md. delivered at
Kishanpore station " (in Tirhoot District). Defend-
ant, who resided at Nadia, wired : " Will give R3
for 300 mds. and, if offer accepted, despatch to
Chooadanga " (Railway station in Nadia District),

JURISDICTION— cofi^d.

2. CAUSES OF JURISDICTION— contd,

(6) Cause of Action — contd.

and wrote a letter the same day to the same effect
and asking for railway receipt. Plaintiff, on receipt
of the telegram, wrote : " 120 bags (300 mds.) of
indigo seed went forward to Kishenpore station
early this morning, and I have instructed station-
master to despatch it . . . . R. R. is herewith
enclosed. Your cheque for R900 on receipt of seed
will oblige . . . " The seeds were delivered at
Kishenpore station for transit to Chooadanga, and
were duly received by defendant. Plaintiff brought
this suit against defendant at the Court at Samasti-
pur, for recovery of the price of the seeds. Held,
that it was the intention of the parties that the
contract should be performed at the Kishenpore
railway station, and that the price was also payable
to the plaintiff at Samastipur ; and, that, conse-
quently the Court at Samastipur had jurisdiction
to try "the suit. Sheriff?'. Manners (1903)

7 C. W. N. 912

69. — Civil Procedure

Code (Act XIV of 1882), s. 17, Expl: III— Cause of
action arises only where money is expressly or im-
pliedly payable under the contract and not under any
general rule of law. The rule of general law that
where a contract is silent as to the place of payment;
it is the duty of the debtor to seek out his creditor
and pay him, does not control the express provi
sionsofs. 17, expl. Ill of the Code of Civil Proce
dure, and cannot be applied in determining where
for the purposes of the sectiun, the cause ot action
has arisen. The place where the cause of action
arises under s. 17, expl. Ill, is the place where
money is payable, expressly, or imphedly, under
the contract itself, and not under any general rule
of law. When a promissory note payable on
demand is made at T and no place is fixed
expressly, or impliedly, for payment, the mere fact
that the creditor is described as residing at K,
which is within the jurisdiction of a Court different
from that exercising jurisdiction at T, does not, by
virtue of the general rule ot law stated above, make
K the place of payment for the purposes of s. 17,
expl. Ill of the Civil Procedure Code, and the
Court at K has, in the absence of evidence that
the money was payable at K in the ordinary course
of business, no jurisdiction to entertain a suit
against the debtor, who is not resident within the
local limits of its jurisdiction. Raman Chettiyar
V. Gopalachari (1907; I. L. R. 31 Mad. 223

70.

~ Compromise— Lexers Patent,

cl. 12 — Compromise outside of decree obtained with-
in jurisdiction. Where ,4 obtained a decree in the
late Supreme Court, and subsequently resided out
of the local limits, and then executed a compromise
in an action brought by B to prevent A from pruceed-
ing upon the decree of the Supreme Court : — Held,
that the whole cause of action did not arise within
the local hmits provided hy the Letters Patent, and
that the Court had no jurisdiction. Feda Hossein
V. Syedoonissa . 1 Ind. Jur. W. S. 80

( 6025 )

DIGEST OH CASES.

( 6026 )

JURISDICTION— coTiW.

2. CAUSES OF JURISDICTION— co«<r/.

(6) Cause op Action — contd.

71.

Civil Procedure
Suit for a declara-

Code, s. 17 — " Cause of action

tion that a compromise and a decree founded thereon
are null and void as against the plaintiff, and for an
injunction restraining execution. Held, that the
term " cause of action " as used in s. 17 of the Code
of Civil Procedure, does not necessarily mean the
whole of the cause of action ; but a suit to which s.
17 applies may be instituted where some material
portion of the cause of action arises. Murti v.
Bhola Ram, I. L. R. Ifi All. lf!'> ; Read v. Brown,
L. R. 22 Q. B. D. 128 ; Llewhellin v. CMmni Lall,
I. L. R. 4 All. 423; Bishunath v. llahi Balchsh,
I. L. R. ') All. 2i7 ; Gopi Krishna Gossami v.
Nilkamiil Banerjee, 13 B. L. R. 4IU ; Hills v.
Clark, '4 B. L. R. 367; Lalji Lall v. Hardey Narain,
I. L. R. '.) Gale. 105 ; Jackson v. Spittall, L. R.
5 C. P. .542 ; Vaughan v. Weldon, L. R. 10 C. P.
4~;and Haromoni Dassi v. Hari Churn Chow-
dharrj. I. L. R. 22 Calc. 833, 840, referred to.
The plaintiff came into Court, alleging that he was
the adopted son of one Balmakund, having been
adopted to him by Balmakund's widow, and that
the defendants, \\ho were trustees of the Will of
Balmakund, had entered into a collusive suit, which
they had fraudulently compromised, with the result
that one defendant had obtained from the Court a
decree for a considerable sum paj'able out of the
property left by Balmakund, which property the
plaintiff claimed as his own. The decree-holder
got the decree sent for execution to Cawnpore, and
was seeking to execute it against the estate of
Balmakund within the limits of the jurisdiction of
the Subordinate Judge of Cawnpore. The plaintiff
filed his suit in the Court of the Subordinate Judge
of Cawnpore and asked in effect, that the com-
promise and the decree founded thereon might be
declared to be null and void as against him, and
that an injunction might be issued restraining
execution of the decree. Held, that, although the
decree was passed in Calcutta, yet inasmuch as the I
projjert}" affected by the decree was in Cawnpore,
and execution was being taken out there, a material
portion of the plaintiff's cau.se of action arose in
Cawnpore, and the Subordinate Judge of that place
had jurisdiction to try the suit. Nistarini Dassi v.
Nu7ido Lall Bo,^e, I. L. R. 20 Calc. 89 ' ; and Hadjee
Ismail V. Hadjee Mohamed, 13 B. L. R. 91,
referred to. Solomon v. Abdool Aziz. 4 C. L. R.
360, distinguished. Banke Behari Lal v. Pokhe
Ram (1902) . . . I. L. R. 25 All. 48

72.

Costs. — Assignment of decree

for costs — Costs realized by assignee — Decree reversed
in appeal — Suit by successful appellants to recover
from the assignee the costs realized by him. Certain
appellants in the High Court obtained from
that Court a decree dismissing the respondents',
plaintiff's, suit with costs. That decree for
costs was assigned by the decree-holders, and
the assignee took out of Court in execu-

JURISDICTION— con<<Z.

2. CAUSES OF JURISDICTION— con^c?.

(6) Cause of Action — contd.

tion thereof the money which had been paid
in satisfaction of it by the judgment-debtors.
Subsequently that decree vas reversed by the
Privy Council, and the plaintiffs obtained a de-
cree in their favour, with costs in all Courts.
After an infructuous attempt to get a portion of
those costs from the assignee by way of execution
of the order of the Privy Council, the decree-hol-
ders filed a separate suit against liim for their
recovery. Held, that the decree-holders had no
cause of action for a suit to recover from the
assignee the costs realized by liim in the manner
above described. Lalta Prasad v. Sadk,^ Husen
(1902) , . . I. L. R. 24 All. 288

73.

A ward of costs-

Such award not a nullity — Civil Procedure Code [Act
XIV of 1882), s. 14'iB. A Court of First Instance
having no jurisdiction, tried and decided a suit
passing a decree in favour of the plaintiff with costs.
On appeal the decree was reversed on the merits
and the suit was dismissed with costs of both Courts.
All the parties and both the Courts had proceeded on
the assumption that the lower Court had jurisdic-
tion. Held, that the award of costs by the Appellate
Court wab not a nullity and such amount was
recoverable. S. 646 of the Code of Civil Procedure
is an enabling section and does not cut down the
jurisdiction of the appellate tribunal. Siyihadri
Appa Rao v. Chelasane Bh^vdeayya (1900)

I. L. R. 30 Mad. 41

74. Dower — Suit for dower debt —

Civil Procedure Code, 1882, s. 17 — Mahomedan law,
Dow<:r — Suit for recovery of dower debt from the assets
of a deceased Mahomedan. A suit for the recoveiy
of a dower debt from the as-ets of a deceased
Mahomedan being a suit on a contract is subject to
the provisions as to jurisdiction contained in s. 17 of
the Code of Civil Procedure, 1 882. ■\\Tiere. there-
fore, none of the requisites for jurisdiction given ia
that section existed within the jurisdiction of the
Court in which such a suit was brought, that Court
had no jurisdiction to entertain it. Shankar Dial
V. Muhammad Mujtaija Kuan

I. L. R. 18 All. 400

75. False Evidence. — False evi-

dence not actionable-Conspiracy to give false evidence.
No civil action lies against a witness for giving
false evidence ; and the fact that the evidence is
given in pursuance of a conspiracy to obtain the
conviction of the accu.sed person does not make
any difference. The only lemedy against a false
witness is a prosecution for perjury. Where,
therefore, a plaintiff sued three defendants for giving
false evidence against him in a trial at Bombay,
alleging that it w as done in pursuance of a conspiracy
entered into at Hyderabad to obtain his convic-
tion : Held, that the plaint disclosed no cause of
action. A mere conspiracy to injure a man, with-
out an overt act resulting in the injury, does not

( 6027 )

DIGEST OF CASES.

( 6028 )

JURISDICTION"— ro7iW.

2. CAUSES OF JURISDICTION— conW.

(b) Cause of Action — contd.

furnisli any cause of action. A conspiracy is not
illegal unless it results in an act done which by itself
would give a cause of action. Templeton v.
I^URiE (1900) . . I L. R. 25 Bom. 230

76. Foreign judgment, suit on—

Lf-tters Patent, cl. 12 — Company — Service of balance
order on defendant — Winding up. The defendant,
who resided outside the jurisdiction of the High
Court, was sued at Bombay as a contributory upon
a balance order made by the Court of Chancery in
England in the winding up of the plaintiffs' bank.
It was contended on his behalf that no part of the
cause of action had arisen within the jurisdiction,
and that the suit was therefore not maintainable.
The plaintiffs contended that service of the balance
order upon the defendant was necessary, and consti-
tuted part of the cause of action, and that, as such
service had been effected upon the defendant in
Bombay, the Court has jurisdiction. Held, that
service of the balance order upon the def endan t was
not necessary ; and that, as no part of the cause of
action had arisen within the jurisdiction, the suit
should be dismissed. London. Bo^rBAY, and Medi-
terranean Bank v. Badee Beebee

I, L. R. 5 Bom. 49

77. Foreigner — Defendants non-
resident foreigners — Cause of action arisini within
jurisdiction — Civil Procedure Code {Act XIV of
18S2),'s. 17, Expl. Ill— Letters Patent, cl. 12— Small
Cause Courts Act {IX of 1887), s. 18. Under the
Civil Procedure Code (Act XIV of 1882), British
Courts are empowered to pass judgment against
a non-residenL foreigner, provided that the cause
of action has arisen within the jurisdiction of the
Court pronouncing the judgment. Rambhat v.
Shankar Baswant (1901)

I. L. R. 25 Bom. 528

78. Non-resident foreigner

— Subjects of protected Native States may be sued, if
cause of action arise"! within the jurisdiction. A non-
resident foreigner, who is a subject of a protected
Native State, may be sued in the Courts of British
India, if the cause of action arose within the juris-
diction of any such Court. Even apart from the
provisions of s. 17 of the Code of Civil Proce-
dure, the cause of action in the case of contracts
arises at the place of performance. Annamala,
Chetty V. Murugesa Chetty, I. L. R. 26 Mad. 544
followed. Tadepalli Subba Rao v. Mir Gulam
Allikhan of Banganapalli (1905)

I. L. R. 29 Mad. 69

79.

'Fr&VLd—Suit for goods ob-

tained by fraud— Letters Patent, cl. 12. G went to the
plaintiff's place of business in Calcutta, and repre-
senting to him that he wanted some jewellery on in-
spection, and would purchase it if he did not return
within ten days, obtained from the plaintiff a quan-
tity of jewellery, depositing as security R2,000 with
the plaintiff. G, having thus obtained the jewellery.

JURISDICTION— confoi.

2. CAUSES OF JURISDICTION— confd.

(b) Cause of Action — contd.

took it to K, at his residence, which was out of the
local limits of the jurisdiction of the Court., and
pledged the jewellery to K for R6,000. In a suit
brought against G and K to recover the jewellery
or its value, G did not appear, and K alone defended
the suit. Held, that, it being with reference to s. 178
of the Contract Act, an essential element in the
plaintiff's case that the jellewery had been obtained
from the plaintiff by fraud in Calcutta, part of the
cause of action against K arose in Calcutta, so as
to enable the Court, leave having been obtained
under cl. 12 of the Charter, to entertain the suit
against him. Kartick Churn Setty v. Gopal-
KisTO Paulit . . I. L. R. 3 Calc. 264

80.

Legacy, suit for— Place of

residence of legatee and of heir. A suit for a legacy
must be brought, not within the jurisdiction where
the legatee resides, but within the jurisdiction where
the heir resides. Ashootosh Bose v. Huree
Churn Nag . . 16 W. R. 305

81. Lost property— Pro/jcr^;/ lost

in one district and found in another. A suit to
recover property lost in one district and found in an-
other must be instituted in the Court of the district
in which it is found. Ram Partab Singh v.
Bholabutty Koonwar . . 9 W. R. 586

82. Maintenance, suit for —

Letters Patent, 1865, cl. 12. The plaintiff's father
left various properties partly within and partly
outside Calcutta. The plaintiff instituted this suit,
as an indigent sonless widowed daughter, against
the defendants for the recovery of her maintenance
out of the estate inherited by them from her father,
and prayed that her maintenance might be declared
a charge upon the property situated within the
limits of Calcutta. Some of the defendants lived
within and some outside Calcutta. Leave was
obtained under cl. 12 of the Letters Patent. It was
held that, under the abovementioned circum-
stances, the High Court had jurisdiction to try the
action. Mokhoda Dassee v. Nando L.axl
Haldar . . . I. L. R. 27 Calc. 555

4 C. W. N. 669

83. Malicious prosecution,

suit for— Letters Patent, 1865, cl. 12 — Jurisdiction.
Wheve the plaintiff, in an action for malicious prose-
cution, alleged that the defendant had instituted cri-
minal proceedings against him before the Magistrate
of Moradabad, causing a warrant to be issued by the
Magistrate, and having him arrested under that
warrant in Calcutta : — Held, that the whole cause of
action did not arise at Moradabad ; that part of the
cause of action arose in Calcutta, so as to entitle the
plaintiff, with leave of the Court, to bring an action
in the High Court. Luddy v. Johnson

6 B. L. R. 141

84. — — . . — Cause oj action —

Malicious prosecution — Letters Patent, cl. 12 — Leave

( 6029 )

DIGEST OF CASES.

( 6030 )

JUBISDICTION"— con?<^.

2. CAUSES OF JURISDICTION— conid.
(h) Cause of Action — contd.

— LiaUlity of prosecutor, ivhen prosecution ordered
by Court. The plaintiff, a resident in British India
"was charged with a criminal ofifence by the
defendant in the Magistrate's Court at Rajkot.
In order to secure his attendance the defendant
moved the Bombay Government to initiate extradi-
tion proceedings against the plaintiff before the
Chief Presidency Magistrate in Bombay who,
however, held that a case for extradition
had not been made out. The plaintiff obtained
leave from the High Court to file a suit
against the defendant in Bombay for malicious pro-
secution. On an application by the defendant to
have the leave rescinded : Held, that a material part
of the cause of action accrued in Bombay and that
the High Court had jurisdiction to entertain the suit.
Fitzjohn v. Mackinder, 9 C. B. N. S. 505, 528,
applied. Musa Yakub v. Manilal (1905)

I. li. R. 29 Bom. 368

85. — Minor — Suit to recover custody I

of — Suit by a father for the recovery of his children
illegally detained — Tort — Death of defendant pending
suit — Survival of cause of action against defend-
anVs heirs — Practice — Procedure. A Mahomedan !
sought to recover possession of his minor daughters
who were alleged to have been illegally detained by
the defendant Mukimbhai. Pending the suit,
Mukimbhai died, and the suit was continued against
his widow Sharifa as his heir and legal represent-
ative, on the ground that the minors were in her
possession. Held, that the cause of action did not
survive as against the widow of the deceased defend-
ant, and that, therefore, the suit could not proceed.
The cause of action which gave rise to the suit was |
•extinguished when the defendant Mukimbhai died, j
Sharifa v. Munekhan (1901) I

I. L. E. 25 Bom. 574 i

86. Misrepresentation — Informa- I

Hon as to carriage of goods by railway. Where the ,
defendants at C were asked to obtain information .
from a railway company as to the cost of carriage {
■of coal from R to C which they were about to sell I
to the plaintiff at C, and they did so communicating I
in good faith the result to the plaintiff, and the I
plaintiff was ultimately compelled to pay to the i
railway company a much larger sum than the defend- j
ant had represented -.—Held, assuming there was a [
right of suit, that the cause of action must be i
held to have arisen at C, where the alleged repre-
sentation must be deemed to have been made. I
Bengal Coal Cojipany v. Elgin Cotton Com- !

^ANY 2 N. W. 13 '

87.

Letters Patent,

JUBlSDICTIOW-conW.

2. CAUSES OF JURISDICTION-<;onfd.

(b) Catise of Action — contd.

of the defendant to agree, even when it appears from
the plamt that the defendants are outside the juris-
diction of the Court. Solomon v. Abofl Aziz

4 c. L. E. see

88 -_ Money had and received,

suit for— Place of estate sold and place of receipt
of money. R, having a right to an estate in P, then
in the hands of B, sold it to ;S'. Contemporaneously
with the sale, R and S by deed bound themselves in
common to take all needful steps to obtain posses-
sion of the estate from B. R by a suit in the Supreme
Court against B, recovered the estate and mesne
profits which were paid to him in Calcutta. In a suit
instituted in P by the representatives of S against
R for the amount so realized by him, it was held
that the plaintiff was entitled to recover, and that
the cause of action arose in P. Sharodapeesad
MooKERjEE V. Bengal Indigo Company

1 Ind. Jur. W. S. 32

Money in Govt

■ment Treasury — Suit for sum held in deposit by
Government for collections made by it. ^Vhere a
suit was brought for the surplus collections of the
proprietary profits of an estate made by Govern-
ment during a period when it was held as Koork
tahsil, and it appeared that the Terai District, within
which the said estate vvas situated had been several
times transferred from the Bareilly Division, in
which it originally lay, to that of Kumaun, and back
again, but that at the time of the institution of the
suit it was included within the Kumaon Division
and it further appeared that no portion of the collec-
tions in question were in deposit in the Barielly
Treasury : — Held, that the Bareilly Court had no
jurisdiction to entertain the suit. Hearsey v.
Secretary of State for India . 6 N. W. 47

90.

Negotiable instruments

cl. 12— Suit to set aside decree of High Court on ,
ground of misrepresentation. It is not necessary to I
obtain the leave of the High Court under cl. 12 of j
the Letters Patent, to sue to set aside a decree of
tnat Court made upon a compromise to which the
plaintiff has been induced by the misrepresentations

• — Suit on bill of exchange. Where a bill of ex-
change was drawn at Banda, and made payable and
dishonoured at Benares, and the defendant also had
his dwelling at Banda : — Held, that the cause of
action did not arise at Agra, merely on account of
the bill of exchange ha\nng been sold at the latter
place by a third party, purchaser from defendant.
KisHEN Chund v. Kishen Lall . 2 Agra 123

91. Hvndi—Whole

cause of action — Letters Patent, cl. 12. Where
plaintiff brought an action to recover money paid
by him in Calcutta, on hundis drawn by defend-
ant beyond the local limits, but sent by him to
Calcutta, and there accepted and paid b}' the plain-
tiff:— Held, that the whole cau.se of action arose
within the local hmits of Calcutta, so as to give the
High Court jurisdiction under the 12th clause of the
Charter. Joan Mull v. Munnoololl

1 Ind. Jur. N. S. 219

92. Hundi— Letters

Patent, cl. 12. A, who resided and carried on

{ 6031 )

DIGEST OF CASES.

( 6032 )

JURISDICTION'— conicZ.

2. CAUSES OF JURISDICTION— con^rf.

(6) Cause op Action— contd.

business in the Upper Provinces, sent cotton for sale
to B in Calcutta, and drew hundis against it upon
B, payable in Calcutta. The hundis were negotiat-
ed, and afterwards presented to B'x gomastah in
Calcutta and there accepted and paid by him for B.
In a suit by B against A for balance of account :
— Held, that the whole cause of action arose in
Calcutta witliin the meaning of cl. 12 of the Letters
Patent. Dhtjkraj v. Govindaram

1 B. L. R. O. C. 76

93.

Hundi — Suit

onhundi. A suit for recovery of the amount of a
dishonoured hundi drawn at Shekoabad and payable
at I'urruckabad cannot be brought in the Court of
the Munsif of Shahjehanpore, the abode of the en-
dorsee of the dishonoured hundi, but where none
of the drawers or endorsers resided. Raghoobtjr
Dyal v. Dwarka Dass . . 3 N. W. 343

94.

Hundi — Whole

cause of action — Suit on hundi made out of jurisdic-
tion— Letters Patent, cl. 12. The contract that the
endorser of a hundi enters into is to pay the amount
of the hundi to the holder (in case the drawee makes
default in the place where the hundi has been
endorsed by him, and not in the place where it is
made payable. Where, therefore, a hundi endorsed
and delivered in Ajmere was payable in Bombay,
where it was dishonoured, it was held that the
cause of action of the holder against the endcrser did
not arise wholly in Bombay. Quare : Whether it
arose in part in Bombay. Suganchand Shivdas v.
MuLCHAND JoHARiMuii . . 2 Bom. 270

95. Hindu— Suit

on hundis. The defendant, who resided in the
district of M, but earned on business through an
agent at Calcutta, bj' a letter, dated 4th August
1874, signed by such agent, authorized the plaintiff
to advance money to H K, at M, on hundis drawn
there by him upon defendant's firm at Calcutta, the
hundis to be accepted and paid at maturity at
Calcutta. Hundis were so drawn and accepted, but
the money advanced was not paid at maturity. In
a suit at M against the defendant as drawer or
acceptor, it was^held that the Court at M had no
jurisdiction to try the case. Per Broxjuhton, J. —
If the letter of 4th August 1874 amounted to" a
request to the plaintiff in M to ^lay money at M to be
repaid at Calcutta, no cause of action, upon which
a suit would lie against the defendant in the district
of M, could arise upon it. Jxjmooka Pershad v.
Zaibtjnnissa . . . . 5 C. L. R. 268

96. Hundi— Suit

on hundi — Letters Patent, cl. 12. Where a hundi had
been drawn out of the jurisdiction, uj)on a person
within the jurisdiction, endorsed and delivered, out
of the jurisdiction to one who, out of the jurisdiction,
endorsed the same, and sent it to a person who,
within the jurisdiction, received it, got it accepted,
and presented it for payment to the drawee, by

JURISDICTION"— conti.

2. CAUSES OF JURISDICTION— coned.

(&) Cause of Action — contd.

whom it was dishonoured within the jurisdiction : —
Held, that the dishonour of the hundi by the
drawee within the jurisdiction was a material part
of the cause of action by the holder against the first
endorser, and consequently that such material part
of the cause of action having arisen within the
jurisdiction, and the holder having obtained leave-
to bring his suit under cl. 12 of the Letters Patent,
1865, the Court had jurisdiction. Mulchand

JOHARIMAL V. SUOANCHAND ShTVDAS

I. L. R. 1 Bom. 23

Affirming the decree of the Court below in Sugan-
chand Shivdas v. Mulchand Jorahimal

12 Bom. 113

97.

Agreement at

Delhi to pay money in Bombay — Hundi — Acceptance,
What amounts to — Communication of acceptance
to holder — Communication of acceptance to drawer —
Omission hy drawee to notify non-acceptance — ■
Absence of entry of acceptance in drawee's hook.
The plaintiffs, who traded in Bombay, had dealings-
•with certain firms at Delhi, In December 1884,
it was agreed at Delhi between the plaintiffs and
the defendant that, in consideration of the plaintiffs
accepting a composition of eight annas in the rupee
upon the debt due to them by a certain insolvent
firm, which amounted to R 11, 101 -2, the defendant
would pay the amount of such composition to the
plaintiffs. The plaintiffs in this suit claimed R5,530-
9, being the amount of such composition. The
defendant denied the jurisdiction of the Court,,
contending that no part of the cause of action had
arisen within its jurisdiction. He alleged that the
terms of the agreement were contained in a com-
position-deed which was executed at Delhi, etc. At
the hearing, the Court found that subsequently tO'
the execution of the composition-deed the plaintiffs'
mimim, who was anxious to return to Bombay, had
a conversation -with the defendant at Delhi with
reference to the plaintiffs' claim upon the insolvent
firm, at which the defendant proposed that he should
give a letter to the plaintiffs' said munim with
reference to the claim, and that the munim should
give one to him, that the latter should, upon such
letters being exchanged, return to Bombay, and
that the defendant should remit the amount found
due to the plaintiffs when the accounts had been
made up. The following letter was accordingly
written bj- the defendant and handed to the plain-
tiffs' munim : ' ' Peace, prosperity. To Shripast
Shah Ganeshdas Thakurdas at that auspicious place
the seaport (town) of Bombay. From Delhi written,
by Dowlatrai Shririam, whose (salutations) victory
(to the deity) Gopal do you be good enough to read.
Further, do you be pleased to notice one (piece of)
intelligence (as follows) : You had an account with,
Bhai Fatechand and Kanyalal Jugalkissan. I have-
paid off their debts at the rate of eight annas in the-
rupee. Therefore, as to whatever (amount) may
be found (due) by your account on our making up

( 6033 )

DIGEST OF CASES.

( fi034 )

JURISDICTION— cowW.

2. CAUSES OF JURISDICTION— cowW.

(6) Cause or Action — contd.

the account according to the practice of the mer-
chants, the same I will pay j'ou at the rate of eight
annas in the rupee. This ohitti is written 21st
December 1884." The i)laintiffs' munim handed
the following letter to the defendant ; ''To Shah
Dowlatrai Shriram at that auspicious place Delhi.
From the seaport (town) of Bombay, written by
Ganeshdas Thakurdas, whose salutations of \actory
. . ., etc. Do you be pleased to read . . .
I have an account with Shah Fatechand Kanyalal
Jugalkissan, wherein R are claimable by

me. On account of those rupees I will receive pay-
ment from j^ou at the rate of eight annas in the
rupee. A chitti in respect thereof I have obtained
in writing from you 21st December 1884." These
letters were exchanged at Delhi, and the plaintiffs'
munim then returned to Bombay. Held, that the
Court had jurisdiction. If the oral agreement
between the defendant and the plaintiffs' munim
were taken as the basis of the plaintiffs' claim, it was
clear (hat part of the cause of action aro^e in Bom-
baj% as payment to the plaintiffs was to be made in
Bombay. The exchange of letters was a carrying out
in part of the oral agreement. When that agreement
was made, the defendant was under a legal obliga-
tion to pay the plaintiffs' claim upon the insolvent
firm. The oral agreement varied the time, place, and
mode of payment, as it was competent for the
parties to vary them (Contract Act IX of 1872, ss.
73, 74). If the letter- had varied the terms of the
oral agreement, the latter would be modified by the
later expressions of tlie will of the contracting
parties ; but they did not do so, and the oral agree.
ment remained in force and unvaried. If, on the
other hand, the letters were regarded as containing
the contract, they were not of such a character as to
exclude the proof, under s. 92 of the Evidence Act
(I of 1872), of a separate oral agreement completely
consistent with their terms, namely, that the pay-
ment they provided for should be made in Bombay.
Hfld, also, that, having regard to the circumstances
under which they were written, a promise to pay
in Bombay might fairly be inferred from the
terms of the letters themselves. The defendant
addressed the plaintiff's at Bombay from Delhi and
the plaintiffs addressed the defendant at Delhi from
Bombay, and it might be concluded from this that
the parties intended that the letters should have the
same contractual effect as if they had been respec-
tively written to and from the places to and from
which they purported to be written : — Hfld, also,
that the fact that the debt due from the insolvent
firm to the plaintiffs, which the defendant had
agreed to satisfy, had been contracted in Bombay
would not give the Court jurisdiction independ-
ently of the stipulation, oral or documentary, by
the defendants to pay in Bombay. It would be
necessary for the plaintiff's to prove the existence
of such debt as showing the nature and extent
of the defendant's promise, but the existence of
the debt would not constitute a part of the plaint-

JimiSDIOTION— con/rf.

2. CAUSES OF JURISDICTION— ca»<<?.

(b) Cause of Action — contd.

iffs' cause of action. Praodas Thakurdas v.
Dov^LATBAM Nanubam . I. L. R. 11 Bom. 257

98.

Leave to sue

under cl. 12 of the Letters Patent, 1865 — Amend-
ment of plaint in cases in which leave to sue under
cl. 12 is necessary — Part of cause of action arising
outside the jurisdiction — Hundi, .suit on — Suit by
drawee within the pirisdiction against the drawer
outside the jurisdiction. In suits for which leave to
sue under cl. 12 of the Letters Patent, 1865, is neces-
sary, the plaint cannot be afterwards amended. The
grant of leave must be taken to relate to the suit as
put forward in the plaint on which leave is endorsed
by the Judge accepting it. The gi-ant of leave under
cl. 12 of the Letters Patent, 1865, is a judicial act
which must be held to relate only to the cause of
action contained in the plaint, as presented to the
Court at the time of the grant. Such leave, which
affords the very foundation of the jurisdiction, is not
available to confer jurisdiction in respect of a differ-
ent cavise of action which was not judicially consi-
dered at the time it was granted. In respect of such
a different cause of actioti, leave under cl. 12 cannot
be granted after the institution of the suit ; and
therefore the Court cannot try such different cause of
action, except in another suit duly uistituted. In
suits upon hundis drawn outside the jurisdiction
upon drawees within the jurisdiction, part of the
cause of action arises outside the jurisdiction, and
leave to sue under cl. 12 of the Letters Patent, 1865,
is Jtheref ore J necessary for such suits. Rampurtab
Samruthro'y v. Permsukh Chandamal

I. L. E. 15 Bom. 93

In a later case the plaint was amended by the
addition of another defendant after the leave to
sue had been granted, and an appeal by the original
defendant from that order was dismissed. Foolibai
V. Rampratab SA3IRATRAI I. L. B. 17 Bom. 466

99. Suit on hundi

Endorsement by jjayee. A hundi, drawn at

Benares on the drawer'sfirmat Bombay in favour of
a firm at Mirzapur and Calcutta, was endorsed at
Calcutta by the payee to a firm at Calcutta, and dis-
honoured by the drawer's firm at Bombay. In a
suit brought in Calcutta by the endorsee to recover
the value of the hundi, the defence was raised that
the Court had no jurisdiction to entertain the suit:—
i:/eW, that, the endorsement having taken place in
Calcutta, part of the cause of action arose in Cal-
cutta, so as to give the Court jurisdiction. Kellie
v. Fraser, I. L. R. 2 Calc. 445, and Daya Xarant
Tewary v. Secretary of State, I. L. E. i4 Calc. 256,
approved. Roghoonath Misser v. Gobindnaraix

^^ I. L. R. 22 Calc. 451

100. Letters' Patent,.

High Court, cl. 12 — Suit on hundi payable at fixed
([ate — Dishonoured by non-acceptance — Negotiable

( 6035 )

DIGEST OF CASES.

( 6036 )

102.

Promissory note

made out of jurisdiction — Defendant out of juris-
diction. The proclamation of the Governor General
in Council, dated 26th August 1865, did not revive
the jurisdiction of the late Supreme Court or affect
the local limits under the Letters Patent ; therefore
the High Court had no jurisdiction to entertain a suit-
on a promissory note made at Allyghur, but payable
in Calcutta, the defendant residing at Allyghur.
Indian Carrying Company v. McCarthy

1 Ind. Jur. N. S. 61

n 103. Promissory note

In an action on a promissory note, when the note
was made payable to A, who resided in Calcutta, and
was executed and delivered to him in Calcutta : —
Held, that the whole cause of action arose in
Calcutta. Ramgopal Law v. Blaquiere

^1 B. L. R. O. C. 35

104. Promissory note

—Letters Patent, 1865, d. 12. The High Court

-JURISDICTION— con^d.

2. CAUSES OF JURISDICTION— cotjtd.
(bj'CAUSE'oF Action — conii.
Instruments Act (XXVI of ISSl). On the 14th
April 1889, the defendant at Gwalior drew a hundi
for^R2,500 on his firm at Bombay in favour of D,
payable forty-five days after date. It was subse-
quently endorsed at Gwalior by D to the plaintiflE
at'Cawnpore, who sent it to the Bank of Bombay at
Bombay for collection. It was to become payable
on the 1st June 1889, but on the 23rd April 1889 the
Bank presented it to the defendant's firm at Bom-
bay for acceptance, which was refused. The Bank
thereupon returned it to the plaintiff at Cawnpore,
and it was never presented for payment. On the
16th June 1891, the plaintiff filed a suit upon the
hundi against the defendant at Cawnpore, but on
the 18th March 1893 the plaint was returned to him,
the Court holding that it had no jurisdiction. On
the 16th April 1893, the plaintiff filed this suit in the
High Court of Bombay. Previously to the filing of
the suit, the defendant had ceased to carry on busi-
ness at Bombay. The defendant contended that
the Court had no jurisdiction, inasmuch as (a) the
defendant was a foreigner, and at the date of suit
did not carry on business in Bombay ; and (b) no
part of the cause of action (if any) had arisen in
Bombay. Held, (i) that, under the Negotiable
Instruments Act (XXVI of 1881), the dishonour of
■a hundi, by non-acceptance, constitutes now, as it
has always done, part of the cause of action in a suit j
against the drawer ; (ii) that the Court had jurisdic-
tion under cl. 12 of the Letters Patent, 1865. Ram !
Ravji Jambhekar v. Pralhaddas Subkarn I

I. L. R. 20 Bom. 133 [

101. Promissory

note made and delivered within jurisdiction — Letters
Patent, cl. 12. Where a promissory note payable
within the jurisdiction is also in the first instance de-
livered within it, the cause of action arises within the
jurisdiction. Isser Chunder Sein v. Crtjz

1 Ind. Jur. N. S. 233

JURISDICTION— coft/d.

2. CAUSES OF JURISDICTION— con<i.

(b) Cause of Action — contd.

has no jurisdiction to entertain a suit brought upon a
promissory note made without, but payable within,
the local limits of his jurisdiction, leave to in.stitute
the suit not having been first obtained. Mothoor-
MOHUN Roy v. Jadoomoney Dossee

10 B. L. R. 122

105.

Promissory note.

Suit on — Delivery of note. Where the payee sued
the maker of a note which was dated ' ' Madras,
27th September I860,' ' and delivered to the plaintiff
at Madras : — Held, that the High Court had jurisdic-
tion to entertain the suit, though the defendant had
signed the note at Secunderabad, whence he had sent
it^by post to the plaintiff. The making of a promis-
sory note is altogether the act of the maker, and deli-
very according to the promise is required to make
it complete. Winter v. Round . 1 Mad. 202

106.

-Prom issory note.

Suit on — Maxim " Debitum et contractus sunt
nullius loci.'' The High Court has no jurisdiction
to entertain a suit on an instrument stipulating for
the payment of money generally when the defendant
resides beyond the local limits, and such instrument
was signed by him beyond those hmits. Jurisdic-
tion to entertain a suit on a promissory note is prima
facie shown upon a plaint alleging that the note was
delivered by the defendant at Madras, and that he
thereby promised to pay at Madras. Remarks on
the maxim ' ' DeJbituvi et contractus sunt nullius loci. "
Rajendra Rau v. Sama Rau . ^1 Mad. 436

107.

-Promissory note

-Place of performance — Code of Civil Procedure
[Act X of 1S77), s. 17, Illus. Where a promissory
note is executed in one district, and it is agreed
that the amount of the note shall be paid in another,
the Courts of the latter district have jurisdiction
to entertain a suit on the note. The illustrations
to s. 17 of the Code of Civil Procedure afford no
safe guide as to what is meant in the Code by the
terms " cause of action." Gopi Krishna Ghossami
v. Nil Komul Banerjee, 13 B. L. R. 461 ; Muhammad
Abdul Kadar v. E. I. Railway Co., I. L. R. 1 Mad.
375 ; and Vaughan v. Weldon, L. R. 10 C. P. 47,
followed. Lai-jee Lall v. Hardey Nar.un

I. L. R. 9 Cale. 105 : 11 C. L. R. 12

108.

Partnership — Place of

conduct of partnership transactions — Suit for balance
due. A contract was entered into at Rutlam for the
establishment of a partnership to be carried on
principally at Muttra, where all the transactions
were to be conducted by means of the capital
embarked in the concern at that place. Held,
that the cause of action in a suit for the balance
resulting from these partnership transactions arose
at Muttra. Luchmee Chand Radhaklshen v.

ZORAWAR MULI-

1 W. R. P. C. 35 : 8 Moo. I. A. 291

( 6037 )

DIGEST OF CASES.

( 6038 )

JimiSDICTION— conW.

2. CAUSKS OF JURISDICTION— co?i^d.

(6) Cause op Actios —rontd.

109.

Letters Patent

■cl 12 — Suit against non-reMdent foreigners. Wliere
an agreement in writing was signed by the plaintiS
and the defendants at Secunderabad, in the terri-
tories of the Nizam, for a partnership in a tannery
business to be carried on at Bakuram, near Hydera-
bad, and by the terms of the agreement the tanned
■skins were to be sent to the plaintiff at Madras, for
sale or shipment to England, and hundis in respect
of the goods sent to Madras were to be drawn upon
the plaintiff at Madras and paid by him, and
accounts of the partnership transactions were to be
sent to the plaintiff once in eight days : — Held, in
a suit for an account of the partnership dealings,
that the cause of action had arisen in part within
the original civil jurisdiction of the High Court,
■and, the leave of the Court to bring the suit having
been obtained under cl. 12 of the Letters Patent of
1865, that the Court had jurisdiction to entering the
suit. Held, also, that the jurisdiction of the Court
was not affected by the circumstance that the de-
fendants were non-resident foreigners. Bavah
Meah Saib v. Khajee'Me.4h Saib .' '4 Mad. 218

110.

Letters Patevt,

High Court, cl. 12 — Part of cause of action arising on
jurisdiction — Death of partner — Subsequent recover^/
of assets by surviving partner-Suit by administrator
of deceased partner against surviving partner for
rfcovered assets — Suit for parlnrr^liip ac-nunt. In
1889 one H, a widow and a partner in a firm carry-
ing on business in partnership with two iicrsoiis,
t'lc, 0 -'.nd B (defendp.nts Nos. 1 and 2), in Sind and
at Behrin in the Persian Gulf, died, and the part-
nership vi as then dissoU ed. H had no children, but
it was alleged that she had adopted one P, the
brother of the second defendant. On the 13th
February 1890, the guardian of one K, a minor {H's
husband's nephew), applied to the High Court of
Bombay for letters of administration to her estate,
alleging that K was her heir and next of kin. A
caveat was Hied by her father and others, in which
they denied that K w as her heir, and alleged that P
had performed her funeral ceremonies. The matter
came on as a s\iit on the 19th February 1894, when
an order was made \nthout prejudice to any of
the questions raised by the issues, dismissing the
application and ordering letters of administration
<to H's estate to issue to the Administrator General
of BomViay. Le'ters of adniinistralion were accord-
ingly granted to him on the 3Uth March 1894. In
the meantime, ho\\ever, viz., on the 12th April 1893,
B (defendant No. 2) had filed three suits in the
High Court of Bombay, in the name of himself and
0 (defendant No. 1), as surviving partners of H"s
firm, to recover certain debts due to that firm. Dis-
putes subsequently arose between B and G, and by
a consent order of the 22nd July 1^93 it was ordered
that any moneys recovered in the said three suits
should be paid over to a receiver (defendant No. 3^,

JURISDICTION— con/d.

2. CAUSES OF JURISDld'ION— <w/d

{b) Cause of Action — contd.

to be held by him until further order. On the 1st
August 1893, consent decrees were passed in the
above three suits for a total sura of R28,335, which
v/as forthwith handed over to the receiver. On the
22nd April 1894, the suit was filed by the Adminis-
trator General of Bombay as administrator of H
appointed as above stated. He claimed to recover
the whole sum paid to the receiver, alleging that
the first and second defendants as her partners
were largely indebted to the firm, and that the
money really belonged to her estate. He prayed
that the receiver might be directed to pay over the
money to him, and that, if necessary, the partner-
ship account should be taken. The second defend-
ant (inter alia) pleaded that the suit was one for
partnership accounts, and was barred by limitation,
and also that the High Court of Bombay had no
jurisdiction to try it. Held, that the Court had
jurisdiction to hear the suit. The cause of action
alleged was that the second defendant was endea-
vouring, under cloak of his position as surviving
partner, to get into his hands a sum of money
within the jurisdiction of the Court, with a view to
deprive the representatives of his deceased partner

j of it, and to employ it for his own purposes. That
was, at all events, part of the cause of action, and
leave to sue had been obtained under cl. 12 of the

I Letters Patent, 1865. Rivett-Carxac v. Gocul-
das Sobhanmull . . I. Ii. R. 20 Bom. 15

Affirmed by the Privy Council in Bhagwaxdas

MiTHARAM V. RiVETT-CaRSAC

I. L. R. 23 Bom. 544
3 C. W. N. 186

111.

-Stamp Act {I of

1879), s. 16 — " Stamped at the time of execution " —
Stamp Act {II of 1899) — Affixing and cancelling
stamp immediately after sigiuiture — Letters Patent,
Art.l2 — Part of the cause of action — Promissory note
payable in Madras or Secunderabad — Payments of
interest in Madras. A promissory note was execut-
ed in plaintiff's favour at ^Vizianagram, payable in
Secunderabad or Madras. Payments of interest
due on the note were made in Madras. The note
was signed fir.st, the stamp having been affixed and
cancelled after signature, the acts being practically
simultaneous. Leave to sue in the High Court had
been obtained under Art. 12 of the Letters Patent.
Held, that, part of the cause of action had arisen in
Madras. Held, also, that the note was stamped
at the time of the execution, within the meaning
of s. 16 of the Stamp Act I (of 1879). Surij Murx
V. 1-IuDSON (1000) . I. L. R. 24 Mad. 259

112. Principal and Agent—

Principal residing out of juri-^dictiuii. Hdd, that
the Court at Furruckabad had no jurisdiction to
entertain a suit against principals residing elsewhere,
brought by the agents at Furruckabad. Khooshal
Chund v. Pai.mkr ... 1 Agra 280

( 6039 )

DIGEST OF CASES*

( 6040 )

JUKISDICTION— fowW.

■2. CAUSES OF .1 URISDKTION— coH/f/.

(6) Cause of Action — contd.

US.

Jurisdiction —

Foreigner carrying on business by agent— Civil Pro-
cedure Code {Ad XIV of 18S2), s. 17— Suit in Court
in British India on judgment of French Court —
Effect of order in insolvency of French Court —
Business carried on by managing member of joint
family. Qucere : Wliether a non-resident foreigner
can, by carrying on business ^vithin the jurisdiction
of a British Court in India by an agent subject^
himself to the iurisdiction of the Coiu-t under s. 17
of the Code of Civil Procedure (Act XIV of 1882).
Girdhar Damodar v. Kassigar Hiragar, I. L. R. 17
Bern. 062, distinguished. In this case it was found
by(H;he Judicial Committee on the evidence that the
agency was not proved, the alleged agent being
rnerely the manager of joint family property, of
which the defendant owned a share ; and they held
that such a person is not the agent of themembers of
the family so as to make them liable to be sued as if
they were the principals of the manager. The rela-
tion of such persons resembles that of trustee and
cestui que trust, rather than that of principal and
agent, or of partners. The defendant was a French
subject, and had been adjudicated an insolvent by
the Court at Pondicherry.' Quoire : Wliether a sui+
brought against him in a British Court in India on a
judgment oF the Pondicherry Court, obtained after
the order of adjudication in insolvency took effect .
w^as barred by the proceedings in insolvency, as held
in Quelin v. Moisson, 1 Knapp. P. C. 265.
The High Coiurt held that the suit was so barred :
but in the view of the case taken by the -Tudicial
Committee it was not necessary to decide the point.
ANNAMAr.Ai Cnr.TTY r. IMukugasa CiiF.TTy (1903)
I. li. E. 26 Mad. 544 :
s.e. L. R. 30 I. A. 220 ; 7 C. W. N. 754

114.

Registration — Suit to compel

registration — Registration Act, 186-], s. 21 — Civil
Procedure Code, 1869, ■■>. 5. Defendant executed in
favour of plaintiff at Combaconum, in the zillah
of Tanjore, a deed of mortgage of lands situated
at a place A\ithin the jurisdiction of the District
Munsif of Perambalur, in the Trichinopoly zillah.
The deed, to make it enforceable, required registra-
tion, the place of registry (from the situation, of
the lands) being Perambalur. Plaintiff appeared
at the registry office, but defendant did not. In
consequence, the Sub-Registrar refused to register
the deed. The pressent suit was brought to compel
defendant to join in registering it. The District
Munsif of Perambalur dismissed the suit upon the
ground that the cause of action did not arise within
his jurisdiction, but at Combaconum. The QWl
Judge confirmed this decision, as he found that the
defendant was a permanent resident of Combaco-
num. Upon sfK'cial appeal : — Eeld, reversing the
decree of the Ci\ il Judge, that as s. 21 of the Regis-
tration Act (XVI of 1864), which governed this case,
rendered it necessary that the deed should be regis-

JURISDICTION— conJd.

2. CAUSES OF JURISDICTION— <;o»c/<f.

(6) Cause of Action — concld.

tered in Perambalur, the defendant was under an'
obligation to plaintiff to get the document registered
at that place ; that the breach of the obligation was
the cause of action, and that consequently the Court
at Perambalur had jurisdiction, as it was the place
of the fulfilment of the obligation. Sami Ayyangar.
V. GorAL Ayyaxgar . . .7 Mad. 176

115, . Release — Suit to set aside

release— Letters Patent, 1S65, cl. 12. The plaintiff,
resident in Calcutta, sued H, resident in Bombay,
but carrying on business by his gomastah in Calcutta
and others resident in Bombay, to set aside a release
executed in Calcutta of his interest in certain pro-
perty situated in Bombay, on the allegation that it
had been obtained from him by false representations
made by H. The plaint prayed that the release
might be declared void and cancelled ; that a certain
inventory and account relating to the said property,
which the plaintiff alleged he had been induced tC'
file in Bombay by the false representations of H,.
might be declared not binding on the plaintiff ; for
an account ; and for the appointment of a receiver.
Held, that the whole cause of action did not arise in
Calcutta so as to enable the plaintiff to sue in Cal-
cutta without leave of the Covirt under cl. 12 of the
Letters Patent. The word "defendant" in that
clause means all the defendants, if there are several
defendants to a suit. It is not sufficient that one
of the defendants should dwell or carry on business
within the jurisdiction. Ismail Hadjee Hubbeeb
V. Mahomed Hadoee Joosub. Rohima Bye v.
Mahomed Hadjee Joosur. .

13 B. L. R. 91 : 21 W. R. 30a

116. - Representative of deceased
person. — Suit against representatives. The repre-
sentative of a deceased person may be sued in that
Court within the jurisdiction of which the cause of
action with the deceased person arose. Ladd v.
Parbutty' Dossee . „ . 2 Hyde 18

117.

Restitution of conjugal

rights — Hushayid and wife. The plaintiff sued his
wife for restitution of conjugal rights in the Court of
the Subordinate Judge of Borsad, within whose local
jurisdiction the plaintiff" resided. The defendant
contended {inter alia) that the Subordinate Judge of
Borsad had no jurisdiction to entertain the suit on
the ground that she was living outside his juris-
diction. The Subordinate Judge dismissed the suit
for want of jurisdiction. On appeal bj' the plaintiff,,
the decree was confirmed. On second appeal : — ■
Held, reversing the decree, that the Court of Borsad
had jurisdiction. The cause of action, in a suit bj' a
husband for restitution of conjugal rights, consists
in the wife's absenting herself from her husband's
house without his consent, and it must therefore be
deemed to arise at his house. Lalitaoar v. Bat
SuRAJ . . . I. L. R. 18 Bom. 316

( 6041 )

DIGEST OF CASES.

( 6042

JURISDICTION— conid.

3. SUITS FOR LAND.
(a) General Cases.

1. General eases of suits for

land — Land partly in, and partly out of, jaiis-
■diction — Letters Patent, cl. 12. Some of the pro-
perty being situated in, and some out of, the juris-
diction of the Court : — Held, tliat the Court had
jurisdiction to try the suit according to the true con-
struction of cl. 12 of the Charter, 1865, in reference
to the whole of the property. Prasannamayi Dasi
V. Kadambini Dasi . 3 B. L. R. O. C. 85

Letters Patent,

High Court, cl. 12 — Leave to sue — Immoveable
property situated outside jurisdiction — Moveable
property situated within the jurisdiction — Power
to give leave to sue. Where the plaintiffs brought a
suit for their share of family property con.sisting of
land situated outside the jurisdiction of the High
€ourt, and for moveables situated within, leave
having been granted by the Registrar : — Held, that
the High Court had no jurisdiction as to the lands,
and that the suit must be dismissed as to them.
Held, further, that leave to sue had been wrongly
granted by the Registrar. Seshauiri Rati v. RaiMa
Rau . . I. L. R. 19 Mad. 448

Land partly in.

and partly out of, jurisdiction — Letters Patent,
cl. 12. Under cl. 12 of the Letters Patent, the High
Court has jurisdiction to entertain suits for land,
whether the land is situated wholly or in part only
-within the local Umits of its ordinary original juris-
diction, leave of the Courts having been first obtain-
ed in the latter case. Jagadamba Dasi v. Padma-
MANi Dasi . . 6 B. L. R. 686

Suit for land

in territories of Raja of Pudukotta — Trichinopoly
Court, jurisdiction of. In a suit for the recovery of
land situated within the territodes of the Raja of
Pudukotta : Held, that the Civil Court of Trichino-
poly had no jiu'isdiction. Rangaiyan v. Hari
KRiSHiiA AiYAN ... 2 Mad. 437

Land in

sion of receiver. The High Court cannot exercise
jurisdiction in respect to land which is situate out
of its local limits, even though it be in possession of
the receiver. Denonauth Sreemany v Hogg
1 Hyde 141

6. — Cii'd Courts —

Bombay Bevenue Jurisdiction Act {X of ISTH, as
ammded by Act XVI of 1877), s. 4. Held, that the
effect of the amendment by Act XVI of 1877 is that
notliing in s. 4 of the Bomljay Revenue Jurisdiction
Act (X of 1876) shall be held to prevent the Civil
Courts in the Districts mentioned in the second
schedule annexed to that Act from exercising
jurisdiction over claims against Government to
hold lands wholly or partially free from payment
of land revenue. Kalabhai v. The Secretary of
State for India (1905) I. L. R. 29 Bom. 192

7. Civil Procedure

•Code (Act XIV of 1SS2), s. 10, cl (d)—Suit for the

JUniSBlCTlOl^—contd.

3. SUITS FOR LAND— contd.
(a) General Cases— corUd.
determination of any right to, or interest in, imniove-
ahle property— Suit for the recovery of purchase-money
under contract for the sale of land. A suit for the
recovery of unpaid purchase- money under a con-
tract for the sale of land in a suit ' ' for the deter-
mination of any right to, or interest in, immoveable
property " within the meaning of s. 10, cl. (d) of
the Code of Civil Procedure. John Young v. Jlan-
galapilly Ramaiya, 3 Mad. H. C. 125, and His
Highness Shrimant Maharaj Yashvant Ray Holkar v.
Dadabhai Cursetji Ashburner, I. L. B. 14 Bom. S-jS,
referred to and distinguished. Maturi Subbayya
V. KoTA Krishnayya (1905) .

I. L. R. 28 Mad. 227

8. Letters Patent, cl.

12 — Suit for land — Leave of Court — Cause of action
— Title— Appeal from order discharging summons.
The plaintiffs asked for a declaration that they were
entitled to exclusive possession and enjoyment of
a tcdao situated outside the jurisdiction of the
Court and that the defendants had no right in or to
the same. They also sought an injunction to give
effect to that declaration and further prayed that it
might be declared that they were the exclusive
owners of the talao. Held, that the suit was a suit
for land and that under the circumstances the Court
had no jurisdiction to entertain it. i/e/d, also, that
an appeal hes from an order dismissing a Judge's
summons to show cause why leave granted imder
cl. 12 of the Letters Patent should not be rescinded
and the plaint taken off the file. Hudjee Ismail
Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub,
13 B. L. R. 91, applied. Under s. 12 of the Letters
Patent leave is only required, when the cause of
action has arisen in part within the local limits of
the ordinary original jurisdiction of the High Court ;
in eveiy other case either the Court has no power
to grant leave or it is unnecessarj' to obtain it. A
Court of Equity in England only assumes jurisdic-
tion in relation to land abroad, when as between the
litigant i or their predecessors some privity or
relation is established on the ground of con-
tract, trust or fraud, but in no case does a Court
of Equity entertain a suit, even if the defendant is
within the limits of its jurisdiction, where the
purpose is to obtain a declaration of title to foreign
land. Though it is a general principle that the
title to land should ordinarily be determined by
the Court within the limits of whose jurisdiction it
lies, it is, no doubt, open to the Ijegislature to
disregard that principle. But the Courts certainly
would not lean towards a construction involving
that result, where the words of the Legislature are
fairly capable of a meaning in conformit\' with the
general principle. The phrase " suit for land '" in
s. 12 of the Letters Patent is by no means limited
to a suit for the recovery of land : the expression
is not to be read with a technical Umitatiou, which
had never been associated with it. Vaghoji
KtrvERJi V. Camaji Bo.manji (1905)

I. L. R. 29 Bom. 249

( WiS )

DIGEST OF CASES.

( 6044 )

JUEISDICTIOW— confe?.

3. SUITS FOR LAND— conirf.
(a) Oenerai, Cases — contd.

Administration suit — Arts

of maladministration rcgardiyi/j immoveable pro-
perty outside jurisdirtion — Power of Court to set
aside leases of ivmioveable property outside its
jurisdiction — Letters Patent, Hir/h Court, d. 12 —
Leave to sue. In an administration action the fact
that amongst other things leases of immoveable pro-
perty granted by the executors to themselves are
sought be set aside on the ground that such leases
are acts of maladministration does not make the
action one for the recovery of immoveable property,
and leave under s. 44, Rule A, is not necessary. If
the High Court has jurisdiction to entertain such an
administration action, the fact that the property
comprised in the leases complained of is wholly
outside the limits of its ordinary original civil
jurisdiction does not preclude it from setting aside
such leases, and leave for that purpose under cl. 12
of the Charter is not necessary. The Court assumes
jurisdiction in regard to immoveable properties
situate outside the jurisdiction in cases where it can
act in personam either to compel the owner to give
effect to legal obligations into which he has entered
or to a trust reposed in him. Nistarini Dassi v.
NuNDO Lall Rose . I. L. R. 26 Calc. 891
3 C. W. N. 670

10. Jurisdiction of

High Court — Original Side of High Court — Suit for
administration of the estate and to set aside decree on
the ground of fraud — Decree of Mofvssil Court —
Leases of land outside jurisdiction — Executor defend-
ant residing in Calcutta — Construction of Hindu will
— Expenses of poojas, etc. — Discretion of executors —
Void bequest — Directions as to accumulations. The
plaintiff brought a suit on the original side of the
High Court at Calcutta for administration of the
estate of her husband, who had been a resident of
Calcutta and for the construction of his will ; and
she also prayed that a deed of trust, an award and
two leases of land outside the jurisdiction of the
Court, of all which documents dealing with her
husband's estate she alleged she had been induced !
to sign by the fraud of one of his executors, the i
principal defendant, who resides in Calcutta, and a
decree of the Subordinate Judge of Alipur filing the ;
award and gi^ang judgment in accordance therewith, '
might be declared void by reason of fraud. She I
obtained leave to file the suit on the ground that the
cause of action arose partly outside the jurisdiction \
of the Court. Roth Courts below held that the |
fraud was proved. Held, by the Judicial Committee, i
that the High Court on its Original Side had jurisdic-
tion to entertain the suit. That Court had power |
to order administration of the estate, and as auxi-
liary to such order to set aside deeds obtained by the J
fraud of the executor. The fact that a decree had ,
been granted by a mofusil Court making a fraudu- \
lent award an order of Court did not protect that [
decree from, tiie jurisdiction of the High Court, I
•when redressing the fraud. The High Court was |

JURISDICTION-con?<?4

J. SUITS FOR LAND^ona

(a) General Cases — corUd.

also entitled, for the due administration of the-
estate, to set aside leases of land outside the terri-
torial Umits of its jurisdiction, those leases having
been made as an incident of the same fraud. By his
will the testator gave one-third of his estate to each
of his two brothers, and as to the remaining third
gave the following direction to his executors : ''" And
you are to pay my share of the expenses whatever
that be that shall be incurred in the performance of
ceremonies at the house of my maternal grandfather
. . . . and for the poojas, etc., that shall be
performed by my brothers in our own house you
shall give my share of the expenses." Held, that
this did not give an unlimited discretion to the exe-
i enters as to the amount of the payment, and that
' by the decree an enquiry was rightly directed to
determine what was a reasonable and proper sum
for such expenses ' ' having regard to the terms of
I the will and all the circumstances of case." The
ultimate disposal of the residuary third was that,
after all payments directed by the will whatever
sum should remain was to be used in the purchase of
Company's papers, " and you shall pay the interest
thereof to my wife for her life, and after her death
you are to make over all the property of mine and
Company's paper, etc., which you shall have in your
possession to them, who shall be my heirs. Held,
that, if the word heirs meant the persons who would
be heirs at the widow's death, the gift was void and
the result was an intestacy. If, on the other hand,
the Word meant the testator's right heir (as their
Lordships thought it might), that Was the vridoW
herself, who therefore, in any case, was entitled to
the residue for a widow's estate, and being solely
entitled to the fund directed to be accumulated
she could release the direction for accumulations
and enjoy the whole income. Renode Rehari
Rose t'. Nistarani Dassi ( 1905)

I. L. R. 33 Calc. 180

11. A\7ax6i— Application to file

award — CaM.se of action — Civil Procedure Code,
1859, s. 327. The plaintiff and defendant entered
into partnership for the purpose of carrying on the
cultivation and manufacture of tea on a tea estate at
Darjeeling, of which they were the owners in certain
shares. The deed was executed and registered in
Calcutta, but both parties resided out of the juris-
diction. The deed contained provisions for a
reference to arbitration in case of difference or
dispute in any matters relating to the partnersliip.
Differences ha\-ing arisen, arbitrators were appointed
in accordance with the clause in the deed. The
arbitrators subsequently made their award in
Calcutta to the following effect : That the defend-
ant's share in the partnership property should stand
charged with the payment of a certain sum found to
be due by him to the plaintiff, and that the
defendant should execute a mortgage of his share to
the plaintiff as security for such payment ; that ,

( 6045 )

DIGEST OF CASES.

JURISDICTION"— comW.

3. SUITS FOR LA^D—contd.

(a) General Cases — contd.

the partnership should be dissolved on certain
terms, and that the tea garden at Darjeeling
should be sold in Calcutta. In an application
under s. 327, Act VIII of 1859, to file the award.
—Held, affirming the decision of the Court below,
that the High Court at Calcutta had jurisdiction to
file the award. Section 327 gives jurisdiction to
file an award to any Court in which a suit in respect
of the subject-matter of the award might be insti-
tuted. A suit in respect of the subject-matter of this
award would not be a suit for land, but a suit in
which, by reason of the execution of the deed of
partnership in Calcutta, a part of the cause of ac-
tion arose there ; such a suit could, with leave,
have been instituted in the High Court : that
Court, therefore, had jurisdiction to file the award.
Kellie v. Fkazer . I. L. R. 2 Calc. 445

12.

Claim to attached pro-

perty — Claim under Civil Procedure Code, 1859,
■i. 246. A claim to property under s. 246, Act VIII
of 1859, is virtually a suit for land. Sagore Dutt
V. Rajmchunder Mitter . . 1 Hyde 136

13.

Foreclosure — Lex loci rei sitae.

When land forms the subject-matter of the suit,

the lex loci rei sitae apphes. A suit for foreclosure

is a suit for land. Blaquiere v. Ramdhone Doss

Bourke O. C. 319

14.

Foreclosure of

■property out of jurisdiction — Practice. A suit for
foreclosure of land out of the jurisdiction is a " suit
for land," and cannot be brought in the High Court
at Calcutta on the ground that defendant is living in
Calcutta. In such cases the Court will return the
plaint. BiBEE Jaun v. MAHOivfiViED Hadee

1 Ind. Jur. N. S. 40
15. Cause of action

— Property out of jurisdiction. A suit by a mort-
gagee for foreclosure must be brought in the district
where the land is. In like manner, a suit by a mort-
gagee who is entitled, not to a foreclosure, but to a
decree to establish his charge and for the sale of the
specific property charged, must be brought in the
Court within the legal limits of whose jurisdiction

I the property is. The remedy against the borrower
personally under a mortgage -deed must be pursued
in the district in which the cause of action arose.
J5ut when the object of the lender is to proceed to
enforce his charge against the property (such pro-
l)erty being immoveable), his suit must be brought
in the district where the property is situated.

; BULDEO Doss V. MOOL KOOER . 2 N. W. 19
16. Portion of pro-
perty in mofwssil. Where a plaint prayed for fore-
closure of a mortgage in the English form of certain
land situated partly in Calcutta and partly in the
mofussil, and for an account : — Held, that, leave to
sue having been obtained under cl. 12 of the
Letters Patent, the Court had power to make a

JURISDICTION-— confef.

3. SUITS FOR LAND— corUfl.

(a) General Cases — contd.

decree with respect to the whole of the property.
Bank of Hindustan, China, and Japan v.
Ntjndolall Sen . . . , 11 B. L. R. 301:

17.

Letters Patent,

1865, cl. 12 — Foreclosure, suit for. A suit for fore,
closure is not a suit for land within the meaning of
cl. 12 of the Letters Patent, 1865, and the High
Court of Bombay on its original side has jurisdiction
to entertain such suits, although the property in
question is situate outside the town and island of
Bombay. Holkar v. Dadahhai C. Ashhurner,
I. L. R. 14 Bom. 353, followed. Sorabji Cursetji
Sett v. Rattonji Dossabhoy

I. L. R. 22 Bom. 701

18.

Injunction — Civil Procedure

Cede, s. 5 — Suit in personam — Suit for injunction
to restrain nuisance. The plaintiffs, the owners and
occupiers of a house and premises in Howrah, sued
for an injunction to restrain a nuisance caused by
certain workshops, forges, and furnaces erected by
the defendants, and for damages for the injury done
thereby. The defendants were a railway company
incorporated under an Act of Parliament for the
purpose of making and maintaining railways in
India, and by an agreement (entered into under their
Act of Incorporation) between them and the East
India Company, they were authorized and directed
to make and maintain such railway stations, offices,
macliinery, and other works (connected with mak-
ing, maintaining, and working tlie railways) as the
East India Company might deem necessary or ex-
pedient. The workshops complained of were erected
in 1807, under the .sanction of the Bengal Giovern-
ment, on land purcha.scd by the Government in
1854 for the purposes of the railway under Reg. I of
1822 and Act XLIIofl850, and which had been
made over to the defendants. Held, that the suit
was in per sona7n, and not a suit " for land or other
immoveable propertj^ " within the meaning of cl.
12 of the Letters Patent, 1865, or of s. 5 of Act
VIII of 1859. Rajmohun Bose v. East Indian
Railway Company . . 10 B. L. R. 241

19.

Letters Patent,

cl. 12 — Suit to restrain working of mine. In a suit
brought against the owners of a mine adjacent to
a mine belonging to the plaintiffs, the plaint alleg-
ed that a certain boundary line existed between the
two mines, and jjrayed for a declaration that the
boundary line was as alleged, and that the defend-
ants might be restrained by injunction from work-
ing their mine within a certain distance from such
boundary fine. The defendants in their written
statement disputed the plaintiffs' allegation as to
the course of the boundary line. The mines were
situated out of the jurisdiction of the High Court,
but both the plaintiffs and defendants were person-
ally subject to the jurisdiction. Held, that the suit
was a suit for land within cl. 12of the Letters Patent

( 6047 )

DIGEST OF CASES.

( 6048 )

JURISDICTION— con<tZ.

3. SUITS FOR LAND— conld.

(a) Geneeal Cases — contd.

And therefore one which, the land being in the
niofussil, the Court had no juiisdiotion to try. On
the facts stated in the plaint and before the filing of
the defendants' written statement, the Court
granted an interim injunction, and refused an
application to take the plaint off the file. East
Indian Railway Company v. Bengal Coal
Company . . I. L. B. 1 Calc. 95

20. Valuation of

suit — Valuation fo) purposes of jurisdiction —
Declaratory decree, suit for — -Consequential relief —
Court fees— Court Fees Act {VII of 1870) s. 7,
■para. 4, els. (c), (d) — Suits Valuation Act {Act
VII of 1881), s. 8. A suit by a plaintiff in jjos-
session for declaration of his title to land, and
for an injunction restraining defendants from
interfering with his possession by cutting trees
thereon, and for damages falls within s. 7, para.
IV, els. (c) and (d) of the Court Fees Act. In
such a suit the Court must accept the value of the
relief stated in the plaint for the purposes of the
Court-fees as well as for the purposes of jurisdiction.
Sardarsingji v. Ganpatsingji, I. L. R. 17 Bom.
66 ; Bai Varunda Lakshmi v. Bai Manegavri,
I. L. R. 18 Bom. 207 ; Ostoche v. Hari Das, I. L.
R. 2 All. 869 ; Jogal Kishor v. Tale Singh, I. L.
R. 4 All. 320 ; Sheo Deni Ram v. Tulshi Ram, I.
L. R. 15 All. 378 ; Vain Goundan v. Kumaraveln
Goiindan, I. L. R. 20 Mad. 249, approved ; Kirty
Churn Mitter v. Aunath Nath Deb, I. L. R. 8 Calc.
757, and Boidyu Nath Adya v. Malchan Lai Adya,
I. L. R. 17 Calc. 680, distinguished. Hari Sankee
DuTT V. Kali Ktjmae Pate a (1905)

I. L. R. 32 Calc. 734

21.

Lien — Letters Pnteyit, cl. li

Leave to institute suit in High Court — Suit to have
maiyitenance declared a charge on property in the
mofussil. The widow of one A D applied under
cl. 12 of the Charter for leave to bring a suit in the
High Court against the administrator of her hus-
band's estate to have it declared that the mainten-
ance allowed her was insufficient and to have it
enhanced, and declared as a charge on the said
estate. She prayed also for an account and the
appointment of a receiver. It appeared that all the,
moveable property and the greater part of the
immoveable was in Benares, a portion onlj' of the
latter being within the ordinary original civil
juri.sdiction of the High Court. The application
was granted on 31st May 1873, leave being reserved
to the defendant to move to have this order set
aside. The plaint was then filed. When the case
came on for settlement of issues, the defendant
questioned the jurisdiction of the High Court,
and the Judge of the Court of original jurisdiction,
who found that the defendant was in no way subject
personally to its jurisdiction, withdrew the permis-
sion which had been granted to the plaintiff to insti-
tute the suit. Held, that, as the parties and
witnesses resided in Benares, there was no reason

JURISDICTION— co«W.

3. SUITS FOR LAND— contd.

(a) General Cases — contd.

why the suit should be tried in Calcutta, and as
there was ample property within the jurisdiction of
the Court at Benares to satisfy the maintenance,
there was no necessity for its being declared to be a
charge on the Calcutta j)roperty. Radha Bibee r.
MucKsooDUN Dass . . . 21 "W. R. 204

22. .S'(((( to have

lands declared liable in satisfaction of bond. A
suit to have certain lands declared hable for the
satisfaction of an instalment bond is substantially a
suit for an interest in land, and as such cognizable
by the Courts within whose jurisdiction the property
is situated, even though the cause of action has not
arisen there and the defendants reside elsewhere.
Ram Lall Mookeejee v. Chitteo Coomaree

15 W. R. 277

23. Suit to enforce
7nortgage lien on land. A suit for the enforcement
of a mortgage lien and for a decree that the money
due be reahzed from the property is a suit for im-
moveable property, and must be brought in the
Court within the jurisdiction of which the property
is situated. Ahmedee Begum v. Dabee Persaud

18 W. R. 287

Mahomed Khuleel v. Sona Kooer

23 W. R. 123
Suit to enforce

mortgage-lien on land. A suit brought upon a mort-
gage, praying for a decree for the amount due there-
under, and that in default of payment the land
mortgaged may be sold, is a suit for land within
the meaning of s. 5 of Act VIII of ISoO, and is
rightly brought in the Court of the district within
which the land is situate. In the matter of the
Petition of Leslie 9 B. L. R. 171

s.c. Leslie v. Land Mortrage Bank of
India 18 W. B. 269

25. Mortgage lien

— Suit to recover mortgage-debt sale of mortgaged
property out of jurisdiction. A suit by a mortgagee
to recover the mortgage-debt from the mortgagors
personally, as well as by sale of the mortgaged
property, is one falling within cl. (c) or (rf) of s. 16
of the Code of Civil Procedure (Act XIV of 1882),
and can only be instituted in that Court within the
local Umits of whose jurisdiction the mortgaged
property is situate. A Court has no jurisdiction to
entertain such a suit relating to property situate
outside the local limits of its jurisdiction. Vithal-
EAO v. Vaghoji . , I. Ij. R. 17 Bom. 570

28. Letters Patent,

High Court, cl. 12 — Suit for land out of jurisdiction
— Suit to declare interest on land — Suit to have
land discharged from mortgage. Where the plaint-
tiff alleged that he executed a mortgage of certain
land to the defendant for R 10,000 that the defend-
ant only paid liim R 1,000 and refused to pay the
balance, and praj-ed that the mortgage contract

( 6049 )

DIGEST OF CASES.

( 6050 )

JURISDICTION— conifi.

3. SUITS FOR LAND— contd.

(a) Genebal Cases — contd.

might be declared void and the mortgage set aside
and cancelled, or for damages: — Held, that, so far
as the suit sought to discharge the land from the
obligation imposed on it by the mortgage, it was a
suit for land within cl. 12 of the Letters Patent, and
the land being situate outside the local limits of the
jurisdiction of the Court, the Court had no jurisdic-
tion to try it. Kanti Chunder Pal Chaudhky
V. KissoRY MoHtJN Roy .

I. L. R. 19 Calc. 361 note

27. - Suit to recover

mort{jage-debt by sale of mortgaged property out
of the jurisdiction. A suit for the recovery of a
mortgage-debt by the sale of the mortgaged property
is not a suit for land within the meaning of s. 5 of
the Code of Civil Procedure. A Court may decree
the sale of mortgaged immoveable property, though
situated beyond its jurisdiction. Yenkoba Bal-
SHET Kasar v. Rambhaji valad Aejun

9 Bom. 12
Partition — Letters Patent,

cl. 12. A suit for partition of land is a suit for land
within the meaning of cl. 12 of the Letters Patent.
Padamani Dasi v. Jagadamba Dasi

6 B. L. B. 134

Suit for parti-

tion where moveables are within, and immoveables
outside, the jurisdiction — Practice — Leave to sue
under cl. 12 of Letters Patent — Leave to sue as a
pauper. The plaintiff sued the defendant for parti-
tion of family property, which consisted both of
moveable and immoveable property. The move-
able property was within the jurisdiction, but all
the immoveable property was outside' the juris-
diction of the Court. Held, that the case did not
fall within the provisions of.cl. 12 of the Letters
Patent, 1865, and that the_Court had no jurisdiction
to hear the suit. The fact that his suit included a
claim for moveables, which weie within the jurisdic-
tion, did not entitle the plaintiff to sue in the High
Court, nor could he obtain leave for that purpose
under cl. 12 of the Letters Patent. The words "' all
other cases " in cl. 12 of the Letters Patent, 1865,
do not include cases of suits for immoveable plus
moveable property. I'hey refer to cases in which
immoveable property is not involved. Leave to sue
under cl. 12 of the Letters Patent, 1865, cannot
be implied from the fact that leave of sue as a pauper
has been granted to a plaintiff. Leave for the former
purpose must be distinctly sought and obtained.
Jaikam Nabayan_^^Raje v. Atmaeam Narayan
Rajb . . . . I. L. R. 4 Bom. 482

30.

Partition of

portion of revenue- paying estate in Assam — Imperfect
partition — Assam Land and Revenue Regulation
{I of 1SS6), ss. 96, 15 L The expression ' ' imperfect
partition," as defined in s. 96 of the Assam Land
and Revenue Regulation, is referable to a division
of the entire estate, and not of a portion of the

VOL. III.

JURISDICTION— co«W.

3. SUITS FOR LAND— contd.

(a) Geneeal Cases— contd.

estate. A suit for the partition of certain specific
plots of land situated within a revenue-paying
estate in Assam, the plaintiff having no joint
interest in the other lands of the estate, is not co-
vered s. 154 of the Assam Land and Revenue Re-
gulation and is cognizable by the Civil Court. The
Revenue authorities have no jurisdiction under the
Regulation to make such a partition. Abdul Khalik
Ahmed v. Abdul Khaliq Choudhri, I. L. R. 23 Calc.
514, distinguished. Held by Rampini, J. (contra) —
Such a suit is a suit for "imperfect partition"
within the meaning of s. 96 of the Regulation and
is not cognizable by the Civil Court, except aa
provided for in s. 154 (1) (e) of the Regulation.
GoTJRi Kbishka v. Saba'sv'S'da Sabma (19U5)

I. L. R. 32 Calc. 1036

31.

Court Fees Act

{VII of 1870), s. 7, cl. {iv) {b), s. 7, cl. {v)— Suits
Valuation Act (IX of 1SS7), s. 8— Suit for partition
and separate possession of joint family property —
Valuation for Court-fee purposes — Market value of
subject-matter determines jurisdiction. The plaintiff
sued for partition of certain houses, house-sites,
moveables and lands, valuing his share in lands at
five times the asses.'fmeut (i.e., at R489-6-0) for
Court-fee purposes and in the moveables at R 1,455-
8-0. The market value of the plaintiff's share in the
lauds was R5,600. The plaint was presented in the
Court of the First Class Subordinate Judge as the
value of the plaintiff's share was over R5,000.
The Subordinate Judge held that the value for Court
fees, that is R 1,944- 14-0 should be treated as the
value for jurisdiction under s. 7, cl. (iv) (b) of the
Court Fees Act, 1870, and s. 8 of the Suits Valuation
Act, 1887, and returned the plaint for presentation
in the Court of the Second Class Subordinate Judge.
Held, reversing the orders, that the suit fell within
the jurisdiction of the First Class Subordinate
Judge. Dagdu v. Totabam (1909)

I. L. R. 33 Bom. 658

32. Redemption— Lexers Patent,

cl. 12. Held, that a suit for redemption is a suit for
land ; therefore if the land, the subject of the mort-
gage, is beyond the local limits, the High Court
has no jurisdiction under the 12th clause of the
Charter. Lallmoney Dassi v. Juddoo Nauth
Shaw ... 1 Ind. Jur. N. S. 319

33. Suit for re-

demption where mortgage includes other lands out
of jurisdiction— Account of all the mortgaged lands.
In a suit for redemption of lands lying within
the district of Mirzapur, but included in the same
mortgage with other lands lying within the domains
of the Maharaja of Benares, the Subordinate Judge
of Mirzapur took an account of the sums realized by
the mortgagee from all the lands mortgaged, and
finding that these sums were sufficient to discharge
the entire mortgage-debt, gave the plaintiff the
decree sought ; the'lower Appellate Court dismissed

( eo6i )

DIGEST OF CASES.

( 6052 )

JURISDICTION— conW.

3. SUITS FOR LAND— con^i.
• (a) Genebal Cases — conid.

the suit on the ground that such account could not
be taken ^vithout deciding questions lying vltra
vires of the Mirzapur Court. Held, that the Mirza-
pur Court might take such account for the purpose
of deciding whether the entire mortgage-debt had
been satisfied, and might give the plaintiff a decree
for the redemption of the propertj' lying within the
local limits of its jurisdiction, notwithstanding that
in doing so it would have incidentally to determine
questions relating to lands lying within the domains
of the Maharaja. Girdhaki v. Sheo Raj

I. Ii. R. 1 All. 431

34.

"Rent— S2(it for rent — Civil

Procedure Code, 1S59, s. 5— Residence of defend-
ant— Title to land incidentalhf raised. A suit to
recover the rents of laud situated in district J may
be brought in district S, where the defendant is
residing although in such suit the plaintiff's title to
the laud in respect of which the rent is sought to
be recovered may incidentally come in (juestion.
Chintaman Narayan v. Madhavrw Venkatesh
6 Bom. A. C. 21

35..

Suit for arrears

Qj rent — Letters Patent, cl. 12. A leased to B for
25 years, commencing from October 1855, certain
aurenss or pieces of ground situated in the zillah of
Beerbhoom in Bengal at a certain rent payable
monthly, B entering into a covenant to pay the
rent. The property leased was a " loha mehal," or
iron mine, and the lessee used it as such and erected
smelting furnaces. B resided in Calcutta. Held,
in a suit by A against B on the covenant for arrears
of rent, that the suit was properly brought in the
High Court, as it was not a " suit for land ' ' under
cl. 12 of the Letters Patent of the High Court, 1865,
and the defendant dwelt in Calcutta. Khalut
Chunder Ghose v. Minto

fllnd. Jur.K-. S.426

36.

Suit for rent of

land, with alternative claim for cJmpensation for
use and occupation — Land situated outside jurisdic-
tion of High Court. A suit by a landlord 'against
a tonant ifor rent at a rate agreed upon for one
period, and for rent on the basis of use and occupa-
tion for a subsequent period, is not a suit for land ;
and therefore the High Court may have jurisdiction
to try such a suit even when the land is situate
outside the local limits of its jurisdiction. Ruxc.o
Lall Lohea v. Wilson .1, L. R. 26 Calc, 209
2 C. W. TJ". 718
37. ■ River changing

its course — Act XII of ISSl {North-W ester n Provinces
Rent Act), ss. 1, 704, 93 (a)~Suit for rent. Of two
agricultural holdings situated in the Ballia district
of the North-Western Provinces, each separately
assessed to rent, one became submerged by the river
Ganges, and subsequently re-appeared on the other
side of the river in the Shahabad district of Bengal.

JURISDICTION-— con^d.

3. SUITS FOR LAND-<on«<?.

(a) General Cases — contd.

Held, that the Rent Courts of the Ballia district had
no jurisdiction to entertain a suit for the rent of
this holding. Parmeshar Das v. Sri Newas, All.
Weekly Notes {1S91), 47, distinguished. S. 104
of the North- Western Provinces Rent Act, 1881,
only refers to cases in which the entire property for
which rent is claimed, though a part of it may
be in a different district from another part, is
situate within the North-Western Provinces.
Beni Prasad Kuari v. Ratul Thakur (1901)

I. Ii. R. 23 All. 282

38.

Revenue Court

— Rent of tank, suit for — " Land " — Fishery, right
of— Act X of 1859, s. 623, cl. (4). A suit for reco-
very of arrears of rent of a tank, which is not a part
of an agricultiural holding, but is used for rearing
and preserving fish, is not maintainable in a Revenue
Court, the provision of Act X of 1859 not being
applicable to such a suit. The term ' ' land ' ' in
s. 6 of Act X of 1859 means cultivated land and does
not include a tank regarded as land covered with
water. Siboo Jelya v. Gopal Chunder Chowdhry,
19 W. R. 200 ; Nidhi Krishna Bose v. Ram Doss
Sen, 20 W. R. 341 ; Nidhi Kristo Rose v. Nistarini
Dossee, 21 W. R. 386 ; and Doorga Soonduree
Dossee v. Oomdutoonissa, 18 W. R. 235, referred to.
Sernble : Where the grant is mereh' of a right of
fishery, the lessee acquires no interest in the sub-
soil nor is he entitled to retain possession, when the
water dries up. Duke of Somerset v. Fogwell, 5 B. tSa
C S75 : 29 W. R. 449 ; Suroop Chunder Mozoomdar,
V. Jardine Skinner & Co., Marsh, 334 ; Bessen Lai
Dass V. Khyrunnissa Begum, 1 W. R. 79 ; Munohur
Chowdhry v. Nursingh Chowdhry, 11 W. R. 272;
Radha Mohun 3Iundul v. Neel Madhuh Mundul,
24 W. R. 200 ; and David v. Grish Chunder Guha,
I. L. R. 9 Calc. 183, referred to. Mahananda
Chakravarti v. Mangala Keotani (1904)

I. L. 31 Calc. 937

39.

Landlord and

tenant — Suit for land — Suit by lessee for rents and
profits daring absence — Lessor in possession — Letters
Patent, 1865, cl. 12. A, a lessee of certain premises
outside the jurisdiction of the Court, having
vacated the premises on account of being sentenced
to a term of imprisonment, on his release brought
a suit against the lessor, w^ho had in the meantime
taken over possession, claiming the rents and profits
arising therefrom pending the termination of the
lease, and further claiming that the lessor during
his absence became trustee for him. At the
hearing, the lessor contended there was no cause of
action as this was a suit for land. Held, that,
inasmuch as the lessee ^^ as seeking to obtain pos-
session of the premises by claiming the rents and
profits from the lessor, he sought to do something
which directly affected the property, and therefore
this w^as a suit for land outside the jurisdiction of
the Court and must be dismissed. Delhi and

( 6053 )

DIGEST OF CASES.

( 6054 )

JURISDICTION— coTiW.

3. SUITS FOR LAND— conicZ.

(a) Gbnekal Gases — contd.

London Bank v. Wurdie, I. L. R. 1 Cede. 249, Kellie
V. Eraser, i.L.R. 2 Cede. 445, and Hara Lai Banerjec
V. Nitambini Debi, I. L. R. 29 Calc. 315, followed.
Rungo Lull Lohea v. John Wilson, I. L. R. 26 Calc.
204 ; 2 C. W. N. 718, distinguished. Ebbahim
Ismail Timol v. Pkovas Chander Mitter (1908)
I. L. R. 36 Calc. 59

Specific performance —

Letters Patent, el. 12 — Land situated without local

40.

limits oj jurisdiction. In consideration of the loan of
E,4,000 the defendant agreed to execute a mortgage
of certain land beyond the jurisdiction of the High
Court to the plaintiff, and agreed to produce his
title-deeds and to make a good title. In the
agreement the plaintiff was described as " of
Durmahatta in the town of Calcutta, merchant,"
and the defendant as "of Panchathopy in Zillah
Beerbhoom, at present of Coomertooly in Calcutta."
In a suit for specific performance of the agreement to
execute the mortgage and in the alternative for the
return of the R4,000.— /feZ(^, that, so far as the suit
was a suit for specific performance, the Court had
no iurisdiction. Sreenath Roy (;. Cally Doss
Ghose I.L.R. 5Calc. 82

41.

Contract in

Calcutta for lands outside. Defendant executed an
agreement in Calcutta to sell plaintiff certain lands
out of Calcutta. In a suit for specific performance :
— Held, that the Court had jurisdiction to entertain
a suit upon the contract, it having been made in
Calcutta. Ram Dhone Shaw v. Nobeenmony
DossEE .... Bourk O. C. 218

Upheld on appeal.

42. ■ Letters Patent,

High Court, cl. 12 — Suit for land out of jurisdiction
— Suit for specific performance. A vendor, havuig
obtained leave to sue under cl. 12 of the Letters
Patent of 1865, sued in the High Court to enforce
inter alia the specific performance of a contract
entered into by the defendant for the purchase
of certain land situated in the district of Burdwan,
and in the alternative for damages. Held, that, as
far as the abovementioned objects of the suit were
concerned, the suit was not one for land within the
meaning of that clause. Land ^Mortgage Bank
V. SuDURTjDEEN Ahmed I. L. R. 19 Calc. 358

43.

Poiver of High

Court to order sale of land situate outside jurisdiction
— Mortgage of land outside jurisdiction — Suit for
specific performance relating to land outside jurisdic-
tion— Letters Patent, 1S65, cl. 12. In a suit for
specific performance of an agreement made in
Bombay, but relating to land situate outside
the original jurisdiction of the High Court, and to
reahze a mortgage-debt by sale of the said land : —
Held, that the Courtpiad jurisdiction to try the suit
and to order a sale of the mortgaged land. Yash-

JURISDICTION— contd.

3. SUITS FOR LAND— con<tZ.
(a) General Cases — contd.

VANTRAV HOLKAR V. DaDABHAI CuRESTJI AsH-

BURNER . . . I. L. R. 14 Bom. 353

44.

- Suit for specif

performance — Specific performance of agreement to
grant lease — Land jMrtlij within jurisdiction — Civil
Procedure Code {Act XIV of 1SS2), s. 16, cl. (d)—
Chota Nagpur Encumbered Estates Acts ( VI of 1876,
V of 1884), s. 3 — " Liabilities," meanting of — Effect
of order under s. 2 on pending appeal — Specific
performance of contract — Contract — Disability to
contract — Effect of contract being embodied in decree
— Chota Nagpur Encumbered Estates Act {VI of
1876), s. 3, sub-s. 3, els. (a) and (c), s. 23 — Invalidity
of contract — Perpetuities. In a suit by A against S
for establishment of his title to the Dhalbhoom
Raj, which was at that time under the management
of Government under the Chota Nagpur Encum-
bered Estates Act, *S', who was then actually and
rightfully in possession of the Raj, entered into a
compromise with A by which, on the latter recog-
nising his title to the Raj, S agreed that he would,
within three months after the Raj was released, exe-
cute in favour of A a putni lease of a compact
portion of the Raj yielding a certain income. The
suit, was decreed according to the terms of the com-
promise ; the manager under the Act was no party to
the compromise or to the decree. After the release
of the Raj the heir of -4 sued S for specific perform-
ance of the agreement to grant the lease and for pos-
session with damages and mesne profits of the land
covered by the lease or in the alternative for com-
pensation. Held, that, under s. 16, cl. (d) of the
Civil Procedure Code, a Court within the local limits
of whose jurisdiction a portion of the land, which
miwht be covered by the lease, was situated, was
competent to try the suit. Land Mortgage Bank v.
Sudurudeen Ahmed, I. L. R. 19 Calc. 358, Sreenath
Roy v. Cally Doss Ghose, I. L. R. 5 Calc. 82, Kellie
V. Eraser, I. L. R. 2 Calc. 448, and Delhi and London
Bank v. iVordie, I. L. R. 1 Calc. 249, referred to.
Held tiiat the agreement was a liability and the
appe'al to the High Court was barred by the pro-
visions of s. 3 of the Chota Nagpur Encumbered
Estates Act bv reason of the fact that pending the
appeal the estate had again been taken charge of by
the Government under the Act. Kameshar Prasad
V Bhikhan Narain Singh, I. L. R. 20 Calc. 609,
followed. Held, that, under s. 3, sub s. 3 els. (a) and
(c) of the Chota Nagpur Encumbered Estates Act,
S was at the time the agreement was made, rendered
incompetent to enter into the agreement ; that the
ac^reement was not a matter involving any question
of" succession within the meaning of s. 23 of the Act ;
and the manager, although originaUy made a party,
havinc' ceased to be a party to A's suit at the time
the compromise was filed, it could not acquire any
binding' eliect by reason of its being included in the
decree." Held, further, tliat the agreement was in-
definite in its terms and having never since been

9 G 2

( 6055 I

DIGEST OF CASES.

( 6056 )

JURISDICTION— conW.

■3. SUITS. FOR LA-^B—contd.
(a) General Cases — contd.
definitely expressed or concluded was incapable of
specific performance, and that it was also bad as
infringing the law of perpetuities, inasmuch as,
having regard to the amending Act V of 1884, the
Dhalbhoom Raj might not have been released with-
in the period limited by the law. Chandi Chman
Bimia V Sidheswari Debi, I. L. B. 16 Calc. 71,
relied on. Jagadis Chandka Deo Dhabal v.
Satevghan Deo Dhabal (1906)

I. L. R. 33 Calc. 1065

45.-

Ti tie- deeds— ^S?*/*

title-deeds — Letters Patent, cl. 12. A suit to recover
title-deeds, although it may involve a question
of title, is not a suit to obtain possession of land
or to deal in any way with the land itself within
the meaning of s. 12 of the Letters Patent. Juggee-

KATH Doss V. BeIJNATH DoSS

I. L. E. 4 Calc. 322 : 3 C. L. R. 375

46.

Trusts — Sxdt for land subject

JURISDICTION— cowW.

3. SUITS FOR hMiT>— contd.

(a) Geneeal Cases — concld.

Deed of trust

to a trust — Trustees personally subject to jurisdiction.
Although the High Court, in the original jurisdic-
tion, has no jurisdiction over land or other immove-
able property situate beyond the hmits of Calcutta,
and can make no adjudication of the right and title
to such land, yet where a party is personally
subject to the jurisdiction, the Court has powerto
declare whether or not such party holds such land i
subject to a trust. Bageaji v. Moses

1 Hyde 284 \

47. Trust estate — ,

Eeceiver — Account. The plaint, in a suit brought ;
by some of the persons appointed trustees under a j
deed of endowment of certain land against their co- 1
trustees who were in possession, alleged that the
defendant-trustees had ousted the plaintiffs and had |
committed breaches of trast, and prayed that the ]
deed might be construed and given effect to, and for
a declaration that the plaintiffs were entitled to be j
sebaits jointly with the defendants, for the settle-
ment of a scheme for the performance of the worship,
for the appointment of a receiver, for an injunction
to restrain the defendants from interfering with
the property, and for an account. By the deed the
land was given to idols named therein and the
plaintiffs and defendants were appointed sebaits and
managers of the property, and were directed to
accuniulate for the benefit of the idols any surplus
over and above the expenses of management, but
were themselves to have no beneficial interest in the
property. The land, the subject of the deed, was
situated out of Calcutta, but all the parties to the
suit resided within the local limits of the High
Court's jurisdiction. Held, that the suit was not a
suit for ' ' land or other immoveable property ' '
within cl. 12 of the Letters Patent and therefore the
Court had jurisdiction to entertain it without leave
to sue being obtained. The Court might, if neces-
sar}% appoint a receiver of such property and direct
an account. Juggodumba Dossee v. Puddo-
MOSEY Dossee . . . 15 B. L. R. 318

giving trustees power of sale of land in the mofussil-
Suit by creditor to have trusts carried oid. M and L
Were the joint absolute owners of certain land in
the mofussil, M having a 14-anna share and L the
remaining 2-anna share therein. During the-
absence of L in England, 21 executed, on behalf of
himself and L, a deed of assignment of the whole
of the property to trustees for the benefit of the
creditors of the estate, which was heavily encum-
bered, on trust to sell the land and distribute th&
assets to the creditors. The trustees accepted the
trust, but difficulties afterwards arose in carrying
them out. A suit was thereupon instituted by the
plaintifi, a creditor, on behalf of himself and the
other creditors, the plaint in which alleged that the
trustees were desirous of being discharged, and
prayed that the trusts might be carried into effect ;
that the trustees might be removed ; and that a
receiver might be appointed to carry out the trusts.
To this suit the trustees and 31 and L were made,
defendants. L, who was in England, denied any
power in 31 to execute the deed on his behalf : the
trustees and 31 were personally subject to the
jurisdiction. Held, per Pheae, J., in the Court
below, that the plaint disclosed a good cause of
action, as the Court, if it had jurisdiction, would
have power to make a declaration binding against
L as to the validity of the deed of trust, to appoint
a receiver of the estate, and to direct a sale which
would be binding on 31 and L ; but that the suit
being one ' ' for land ' ' within the meaning of cl. 12
of the Letters Patent, the Court had no jurisdiction
to try it. Held, on appeal, that the suit, having
for its object to compel a sale of the whole of the
land, including i's share, the title to which was
disputed, was a ' ' suit for land " within the meaning
of cl. 12 of the Letters Patent, and that the Court
had no jurisdiction to try it. Delhi and London
Bank v. Woedie

I. L. R. 1 Calc. 249 : 25 W. R. 272

(b) Peopeetv in diepeeent Distkicts.
49. Partition, suits for — Sepa-

rate suits when property is in different districts
— Civil Procedure Code, 1S6!>, s. 12. A plaintiff
may maintain separate suits for partition of im-
moveable family property where the property is
situate within the limits of different districts, and is
not bound to ivy to proceed in one suit in the manner
pointed out in s. 12, Act VIII of 1859. Subba
Ratj v. Rama Rau . . .3 Mad. 376

50. Foreclosure, order for—

3Iortgaged property situated beyond limits of ordi-
nary original civil jurisdiction — Civil Procedure
Code, lSo9, s. 12. The Court at the hearing of a
suit, ordered foreclosure of mortgaged property situ-
ate beyond the limit of its ordinary original civil
jurisdiction under the powers conferred on it by

{ 6057 )

DIGEST OF CASES

( 0058 )

JURISDICTION"— conR

3. SUITS FOR LAND— conif?.

(b) Property in different Districts — contd.

S.12 of Act VIII of 1859. Khettro Mohun Doss
V. Chundra Money Dabee . . Cor. 125

51. Possession, suit for — Suit

for property in different districts. In a suit to
establish a claim against three properties mortgaged
to the plaintiff, but situate in different districts,
where one of the defendants (the appellant to the
High Court) was interested in that only which lay in
'the district of Moorshedabad. — Held, that causes of
action against different defendants had been joined
in the same suit contrary to the provisions of s. 12,
Act VIII of 1859 ; but as the cause of action against
the appellant was one which the Subordinate Judge
of Moorshedabad was legally competent to try with-
out the permission of the High Court, the appel-
lant could not object to that Judge having tried it.
Khetoosee Cherooria v. Banee Madhub Doss

12 W. R., 114

52.

Civil Procedure

'Code, 1SS2, ss. 16, 19, and 45 — Joinder of causes
of action — Suit for recovery of possession of im-
moveable property within the territorial jurisdiction
of different Courts. Where certain plaintiffs claimed
possession of separate portions of land situated
.in two different districts on the same title against
the same defendants alleging a dispossession on one
day from part of the property claimed in district A
and from the whole in district B, and on another day
from the rest of the property in district A : — Held,
that the plaintiffs could bring one suit for recovery
of the whole property in both districts^ and that such
suit was properly brought in a Court in district A.
Katija V. Ismail, I. L. R. 12 Mad. 380, referred
'to. Harchandar Singh v. Lal Bahabur Singh
I. L. R. 16 All. 359

53.

Rent — Suit for rent of a fishery

— Uncertainly as to jurisdiction — Code of Civil
Procedure, 1882, s. 16A — Immoveable property.
A suit for rent of a fishery is a suit for immoveable
property within the meaning of s. 16A of the Code
of Civil Procedure. Fadu Jhala v. Gour Mohun
Jhala, I. L. R. 19 Calc. 544, referred to. A suit
for rent of a fishery was brought in a certain Court,
and there was reasonable ground of uncertainty
as to the jurisdiction of that Court to entertain
the suit. On an objection that the suit ought
to fail for want of jurisdiction -. — Held, that the
conditions required by s. 16A of the Civil Procedure
Code had been satisfied in the case, and that the
objection as to jurisdiction ought not to be enter-
tained. Shibu Haxdae v. Gupi Sundari Dasya
I. L. R. 24 Calc. 449
2 C. W. N. 169
54. Sale under mortgage-

Tarai Regulation {IV of lsl6) — Civil Procedure
-■Code. 1882, ss. 1, 2, 19, and 24 — Mortgage of pro-
/perty situated partly in the district of Moradabad
■ and partly in the Tarai — Suit for sale in Moradn-

JTJRISDICTION— contd.

3. SUITS FOPv LAND— co»<rf.

(6) Property in different Districts — contd.

had Court — Transfer of Property) Act {IV of
1882), s. 88. Held, that the Courts of the Morada-
bad district had no jurisdiction to pass a decree in a
suit for sale on a mortgage for sale of a land sit-
uated in the Tarai to which at the time of mortgage
and of the suit thereon Regulation IV of 1876
applied, by reason merely of a portion of the property
mortgaged being situate in the Moradadad district.
Ram Ratan v. Lalta Prasad

I. L. R. 17 All. 483

55. . Decree, effect of^Property

in two different districts — Leave of Co2iri. AA'here
property was situated in Bhagulpore and other pro-
perty in Tirhoot, and no leave had been obtained to
incltide the property in Bhagulpore : — Held, that a
decree in the Tirhoot Court could have no effect as
against the property in Bhagulpore. Bungsee
Singh v. Soodist Lal

I. L. 7 Calc. 739 : 10 C. L. R. 263

56. . Power of Appellate Court

to give leave — Civil Procedure Code, 1S59, s. 12
— Remand, Order in nature of — Property in different
districts — Decrees of District Courts — Power of
Appellate Court to amend. Neither under s. 12
of Act VIII of 1859 nor in any other way has the
High Court in its appellate capacity power to give
j urisdiction to a District Court to enquire into facts,
as upon a remand, in a suit decided in the Court
of another district, and relating to lands in the latter .
Of two mortgages between the same parties, the
first comprised four villages, of which three were
in district A and a fourth property was in district
B. The second mortgage comprised, in addition to
the above, three other villages in district B. Suits
brought in both districts by the assignee of the
mortgagee against the mortgagor were thus framed,
viz., in the suit in district A for possession upon
foreclosure of both mortgages, and for a declaration
of the plaintiff's right as purchaser of one of the
properties ; and in the suit, in district B, for pay-
ment of the debt on the second mortgage. Both
suits were dismissed. The High Court hearing
appeals in both suits together, affirmed the dismissal
of the suit in district B, and remanded the other to
the Court of first instance in district A, to have the
proportionate value of the properties determined,
with a view to the apportionment of the liabihties of
the parties by way of contribution. As the defend-
ant, who succeeded in both suits in the District
Courts, raised no question of jurisdiction, each of
them might be taken to have had the consent of
parties to its hearing the whole suit before it. But
no such consent could be deemed to have been given
to the order of the High Court made as above stated
on contested appeals. This order M-as accordingly
unauthorized. Although wide powers of amend
ment, of framing new issues, and of modifying
decrees are conferred upon the High Court by pro-
visions in the Code, of which the plain meaning is not

( 6059 )

DIGEST OF CASES.

JURISDICTION— co»?(f.

3. SUITS FOR LAND— <;on<d.

(h) Peoperty in diffeeent Districts — contd.

to be narrowed by judicial construction, these power
were exceeded in the change of the suits by the order
in question into a suit of a description differing
totally from that of either of them, as originally
decreed ; and this without the consent of the
parties. Kamini Stjndari Chaodhrani v. Kali
Prossunno Ghose

I. L. E. 12 Calc. 225 : Ij. B. 12 I. A. 215

57.

Power of High Court to

sanction trial in Sonthal Pergunnahs—

Civil Procedure Code, 1S59, ss 12 and 386—Siiit for
land above Sl,000—Beng. Beg. Ill of 1872, s. 2—
Bengal Civil Courts Act {VI of 1S71). Act VIII,
1859 was in force in 1876 in the Sonthal Pergunnahs
under s. 2, Bengal Regulation III of 1872, as
regards suits triable in Courts constituted under
Act VI of 1871. S. 4 of that Regulation (read with
the notification of the Lieutenant-Governor, dated
4th August 1873) vesting the Deputy Commissioner
of the district of the Sonthal Pergunnahs with
the powers of a District Judge as described in Act
VI of 1871 had the effect of making the Sonthal
Pergunnahs a district as defined by s. 386 of Act
VIII of 1859 ; and therefore, under s. 12 of Act VIII
of 1859, the High Court had power to sanction the
trial of a suit for land situated in the Sonthal Per-
gunnahs, in which the value of the subject-matter
exceeds R 1,000 in the Civil Court competent to try
it. Kalipeosad Rai v. Meher Chandeo Roy

I. L. E. 4 Calc. 222 : 2 C. L. R. 478

58. . ■ Execution of decree made

by Court without jurisdiction — Place of suing
— Suit for side of morig'iged property — Civil Pro-
^cedure Code, ss. 16, 20. In 1879 E gave J a bond
containing a simple mortgage of immoveable pro-
perty. Subsequently R and P jointly gave D a
bond containing a simple mortgage of the same pro-
perty. In 1881 D obtained a decree for the sale of
the property under his mortgage, and it was put
up for sale and purchased by the plaintiffs. In 1882
J obtained a decree in the Court of the Munsif of G
(within the local limits of whose jurisdiction the pro-
perty was not situated) for enforcement of his mort-
gage-bond by sale of the property. The plaintiffs
objected to the sale, and, their objection having been
disallowed, brought a suit for cancellation of J's
decree, so far as it ordered the sale. Held, that J's
decree could only be legarded as a simple money
decree because, as shown by s. 16 of the Civil Pro-
cedure Code, the Munsif had no power under the law
to direct enforcement of hypothecation against im-
moveable property situate beyond the local limits of
his jurisdiction ; and neither the proviso to s. 16 nor
s. 20 of the Code met the circumstances. Held,
therefore, that the plaintiffs were entitled in this
suit to have it declared that J's decree was a
simple money-decree only, on the basis of which no
process in execution could issue in respect of the
property in dispute to oust the plaintiff's posses-

JUEISDICTION— confd.

3. SUITS FOR LAND— conc/«f.

(5) Property in different Districts — condd.

sion from any part of it. Gfdri Lal v. Jagan-
nath Ram . . . I. L. E. 8 All. UT

59.

Succession to foreign.

state — Tipperah Raj, succession to — Act of State
— Declaratory s^^it — Contingent right — Right of suit.
The Courts in British India have no jurisdiction
to decide a question as to who is entitled to
succeed to the Raj of a Foreign Sovereign State or
to any immoveable property, which goes with the
Raj, although situated in Britsh territory. Neel-
kisto Deb Burmono v. Beerchunder Thakoor, 12 Moo.
I. A. 523, discussed and distinguished. Beerchunder
3Ianikhya v. Rajcoomar Ncbodeep Chunder Deb
Burmono, I. L. R. 9 Calc. 636, approved. A person
cannot sue for a declaration of his right to immove-
able property which may never come into existence ;
a mere contingent right, which may never ripen into
an actual existing right, is not always sufficient to
ground an action for such a declaration. Kathama
Natchiar v. Dorasinga Tevar, L. R. 2 I. A. 169 ;
Pranptittee Koer v. Lalla Futteh Bahadur, 2 Hay,
60S. Samarendea Chandka Deb v. Birendra
Kishore Deb (1908) . I. L. E. 35 Calc. 777"

60. Tipnis Pansar^

right — Right to levy toll on exports of paddy from
foreign territory — Such a right is nibandha under
Hindu law — The right in immoveable property. Suit
to enforce the right in British Courts. The plaintiff
sued to recover from the defendant a certain sum
of money on account of toll leviable, under a grant
from the Peshwas and knoWn as the Tipnis Pansare
right, on paddy exported from the territory of the
Pant Sachiv to Pen, via Umber Khind in British
territory. The cause of action arose admittedly in.
foreign territory ; but it Was contended the suit lay
in the British Courts because the defendant resided
in British jurisdiction. Held, overruling the con-
tention, that what the plaintiff claimed was an
allotvance granted by the Peshwa in permanence,,
and such an allowance, whether secured on land or
not, being, according to Hindu law, nibandha, was
immoveable property. The Collector of Thana v.
Hari Sitaram, I.L.R. 6 Bom. f.46, followed. Held,
further, that this immoveable property was situate,
in the eye of the law, in a foreign state;,
and that the British Court had no jurisdiction,
to try it for the determination of a right to
or interest in the property, when the right was
denied. Keshav v. Vinayak, I.L.R. 23 Bom. 22,.
applied, llie Courts in India have jurisdiction to
try actions relating to such property where the
persons against whom relief is sought are living
within the jurisdiction, but that is upon the ground
of a contract or some equity subsisting between the
parties respecting immoveables situated out of the
jurisdiction. Keishnaji v. Gajanan (1909)

I. L. E. 33 Bom. 37a

( 6061

DIGE&T OF CASES.

( 6062 )

JURISDICTION— conW.

4. ADMIRALTY AND VICE-ADMIRALTY
JURISDICTION.

See Merchant Shipping Act, 1875, s. 3.
I. L. R. 5 Calc. 453

1. Supreme Court, Bombay,

Charter ot— English Admiralty Rules. The Bom-
bay Charter, December 1823, established the Admi-
ralty jurisdiction of the Supreme Court, " as the
same is used and exercised in that part of Great
Britain called England, together with all and
singular their incidents, emergents, and dependen-
cies annexed and connexed causes whatsoever ; and
to proceed summarily therein with all possible
despatch, according to the course of our Admiralty
in that part of Great Britain called England."
Held, on a construction of the Charter, that the
rules and practice of the High Court of Admiralty
in England prevailed and governed the proceedings
in the Supreme Court at Bombay in maritime
causes. Loughnan v. Joosub Bhulladina

5 Moo I. A. 137

High Court, Bombay-

Siat. 3 and 4 Vict., c. 6i, s. 6— Stat. 24 Vict., c. 10.
The Stat. 3 & 4 Vict. c. 65, s. 6, does not confer
jurisdiction upon the High Court of Bombay on
its Admiralty tide to entertain causes fcr neces-
saries supplied to foreign ships, that statute not
extending to India. The Stat. 24 Vict., c. 10
(Admiralty Act of 1860), does not extend to India.
The jurisdiction of the High Court on its Admiralty
side is the same as that exercised in the Court of
Admiralty in England prior to the passing of the
above statutes. The extent and nature of that
jurisdiction considered and explained. In re the
'proceeds of the "Asia." Ex parte Hormasji

5 Bom. O. C. 64

3. — Collision — Collision between

foreign vessels at sea — Jurisdiction of High Court,
Calcutta. A collision had taken place a sea in the
Bay of Bengal ofi Juggernauth Pagoda, between the
ship Garland and the ship Dragon, both foreign
vessels, which afterwards came within the jurisdic- I
tion of the Court. Held, that the High Court at {
Calcutta had jurisdiction to try an action in respect
of such collision. The " GAKLiiXD " v. The

' ' Dbagox " . . . 1 Hyde 275

4. — Stats. 3d- 4 Vict. \

c. 65, 24 Vict., c. 10, and 26 d- 27 Vict., c. 26. The 1
Imperial Stat. 3 & 4 Vict., c. 65, 24 Vict., c. 10 and
26 & 27 Vict. c. 24, do not apply to the Admiralty or
Vice- Admiralty jurisdiction of the High Court. On i
that point. The Asia, 5 Bom., O. C. 64, followed.
The Portugal, 5 B. L. R. 323, 330, 331. disapproved
of. The High Court, as now existing, was continued
not created, by the Letters Patent of 1865. The
High Court has jurisdiction, under the common mari-
time law, to entertain a suit in respect of a collision
upon the high seas between two foreign vessels,
although that colhsion may not have occurred in ;

JURISDICTION— conW.

4. ADMIRALTY AND VICE- ADMIRALTY

JURISDICTION— confci.

British or Anglo- Indian waters, and not withstand-
ing the opposition of the Consul of the State to
which the defendant belongs. Quare — AVhether
the High Court has a discretion to decline to enter-
tain such a suit. Even if there be such a discre-
tion, the Court will ordinarily allow a suit of that
nature to proceed. Bakdot\'. The " Augusta "
10 Bom. ilO

5. Suits for dam-
ages for collision — Cross-suit — Residence out of
jurisdiction. One who has sued for damages
caused by a collision at sea, and out of the jurisdic-
tion of the High Court, subjects himself to a cross-
suit for damages caused by the same collision,
although himself residing out of the jurisdiction
of the Court. An order rejecting, for Want of juris-
diction, a plaint brought under such circumstances
was set aside on appeal, and the costs of the appeal
ordered to be costs in the suit. Bombay Coast and
River Steam Navigation Company v. Heleux

4 Bom. O. C. 149

e. Vice-Admiralty Jurisdic-
tion— Vice- Admiralty Regulations of 1S52 — Prac-
tice under Code of Civil Procedure — Procedure —
Pleadings. In Vice-Admiralty cases, the effect of
appearance, the mode of objecting to the jurisdiction
and the mode of questioning the validity of a
pleading, are matters governed by a settled practice
under the Code of Civil Procedure. The Privy
Council Rules issued under 2 & 3 Will. IV, c. 51,
have no operation, except in case of suits in rem in
which no appearance has been entered, and other
matters to which the Procedure Code cannot be
applied. The enactments and rules affecting the
Vice-Admiralty jurisdiction reviewed and examined.
In the matter of the ship " Chamjnr n," I.L.R. 17
Calc. 67, referred to. In the matttr of the ship
" Fannie Skolfield " . I. L. R. 17 Calc. 337

7..

High Court juris-
diction of — Power to arrest ship for repairs. The
High Court has no power in its Vice-Admiralty
jurisdiction to arrest a British-owned ship for re-
pairs. HowRAH Docking Company v. The
' ' Jean Louis " . . Cor 113 : 2 Hyde 255

8. 24 Vict. c. 10

{Admiralty Act, 1861)— 26 Vict. c. 24 (Admiralty
A<:t, 1S63). 24 Vict., c. 10 (The Admiralty Act,
1861), and 26 Vict. c. 24 (The Vice- Admiralty
Act, 1863), extend to India. The High Court,
as constituted by the Charter of 1862, had not,
by virtue of the Admiralty Act, 1861, or other-
wise, any jurisdiction over claims for disbursements
by the master. But after the passing of the Charter
of 1865, the Vice-Admiralty Act, 1863, applied to
the High Court, as being "' a Vice-Admiralty Court
estabUshed after the passing of that Act on a British
possession." Held, therefore, that the High Court
had jurisdiction, as a Vice-Admiralty Court, to
entertain the claim of the master for wages and

6063 )

DIGEST OF CASES.

( 6064 )

JURISDICTION— conW.

4. ADMIRALTY AND VICE-ADMIRALTY
JURISDICTION— <oncW.

disbursements on account of the ship. In the matter
of the ship " Portugal " . 6 B. L. R. 323
9. Judge of Moulmein, juris-
diction of — Suit on bottomry bond. A suit will
not lie on an ordinary bottomry bond given by the
master of a vessel against the owner to recover the
amount thereof. Such a suit cannot be brought
in the Court of the Judge of the town of Moulmein,
which has no Admiralty jurisdiction against the
owner personally ; and the vessel cannot be declared
to be primarily liable or be sold to satisfy the
amount of the bond. Gladstone, Wyllie & Co.
V. Harrison . . . . 24 W. R. 50

5. MATRIMONIAL JURISDICTION.
See Divorce Act, s. 2.

High Court, Calcutta—

Parties resident within jurisdiction. The High
Court at Calcutta, in its matrimonial jurisdiction,
had before the Divorce Act, 1869, jurisdiction only
over parties actually resident within its local limits.
Thompson v. Thompson . Bourke Mat. 1

2. Supreme Court, Bombay,

Ecclesiastical side — Huit for restitution of conjugal
rights — Parsis. The Supreme Court of Bombay
on its Ecclesiastical side declared incompetent to
entertain a suit for the restitution of conjugal rights
at the instance of a Parsi wife against her husband.
Ardaseer Cctrset.tef. v. Perozeboye

4 W. R. P. C. 91 : 6 Moo. I. A. 348

3. Civil Court, jurisdiction of

— Suit III Mahomedan husband for restitution of
conjugal rights. A Mahomedan husband may sue
in the Civil Courts of India to enforce his marital
rights by compelling his v/ife to return to cohabita-
tion with him, and such suit must be determined ac-
cording to the principles of Mahomedan la;v in such
a case. Bengal Regulation IV of 1793, s. 15.

BUZLOOR RUHEEM V. ShUMSOONISSA BeGUM.
JUDOONATH BOSE V. SHUMSOONISSA BeOUM

8 W. R. P. C. 3 : 11 Moo. I. A. 551

6. TESTAMENTARY AND INTESTATE JURIS-
DICTION.

1. High Court, Jurisdiction of

— Appeals. The High Court has jurisdiction to
hear appeals in testamentary cases. Sarodasoon-

DERY V. 1 INCOWBY NUNDY' . 1 HydC 70

2. • Power to com,'

pel rvative to prove will. The High Court cannot
compel a native to prove a will in solemn form, un-
less he have applied for probate, and thus submitted
himself to the jurisdiction. In the matter of
TiBUVALUR KiRXTSTNAPPA MuDAi.i 1 Mad. 59

8. : Prolate or Ut-

ters of administration of British-horn subject dying

JURISDICTION"— co»f<f.

6. TESTAMENTARY AND INTESTATE JURIS-
DICTION— cowcW.

in Moulmein. In the case of a British -born sub-
iect djang and leaving assets in Moulmein, but no
assets in Calcutta, and a mil, dated 5th August,
1865, before Act X of 1865 came into efEect :— £/eW,
that the executrix could not obtain probate or let-
ters of administration, mth the will annexed from
the High Court in Bengal. Saunders v. Nga
Shoay Geen . . ' . . 8 W. R. 3

4. — Reference by

executor and. caveator to arbitration of question as to
due execution of will — Effect of award — Jurisdiction
of testamentary Court to recognize arbitration, pro-
ceedings and award — Application for probate of will.
In a suit on the testamentary side of the High
Court, the parties can refer any matter in dispute
(as the due execution of a will) to arbitration and
the Court will recognize such reference and the
award made on it. An executor having propound-
ed a will and applied for probate, a caveat was
filed denying the execution of the alleged will, and
the matter was duly registered as a suit. The
executor and the caveatrix subsequently referred
" the dispute " to arbitration, and an award was
made that the allegel will had not been duly exe-
cuted. The executor nevertheless subsequently
continued the suit. At the hearing the caveatrix
pleaded the award and contended that it was
binding on the plaintiff (executor). The plaintiff
(executor) contended that the Court as a Court of
probate had no jurisdiction to try any question as
to the award, but was limited only to the question
of the execution of the will. Held, by Candy, J.,
that the Court had jurisdiction to determine the
question as to the award. Held, also, that the award
was binding on the executor. Ghei.labhai Atma-
ram v. Nandubai . I. L. R. 20 Bom. 238

This case was reversed on appeal, the Court
(Farran, G. J., and Strachey, J.) being of opinion,
though holding that it was unnecessary to decide it,
that an executor against whose application for pro-
bate a caveat has been entered cannot submit to
arbitration the question whether the will propound-
ed by him was duly executed by the deceased.
Ghellabhai Atmaram v. Nandubai

I. L. R. 21 Bom. 335

7. JURISDICTION OF MAGISTRATES.
See Jurisdiction of Criminal Court.

1. Security for good behaviour

— District Magistrate, power of. A District
Magistrate has no power under the law to order a
' further ' inquiry in a proceeding under s. 1 10 of the
Code of Criminal Procedure after setting aside, on
appeal, an order passed by a Subordinate
Magistrate directing the accused to furnish security
for good behaviour. Day'anath Taluqdar v.
Empbeor (1905) . . I. li. R. 33 Calc. 578

( 6065 ) DIGEST

.JTTBISDICTION— concM.

7. JURISDICTION OF MAGISTRATES— concW.

, Suit against a Magistrate

recover damages — Proceedings before

Magistrate for arrears of Municipal revenue —
Protection afforded to Judicial Officers — Public
policy — Judicial Officer's Protection Act (XVIII of
1850). In a suit against a Magistrate to recover
damages for injury to the plaintiff on account of the
highly arbitrary, spiteful and illegal conduct of
the defendant — the conduct being in the course of
proceedings instituted by a Municipality against
the plaintiS before the defendant as Magistrate for
the recovery of arrears of house-tax — the plaintifE
contended that the defendant had no jurisdiction to
■entertain the proceedings, because the arrears were
paid before the proceedings were commenced.
Held, that the case was one which the Magistrate
■was competent to entertain and none the less
'because in the result it might appear that there was
nothing due. Jurisdiction for the purpose in hand
rested, not on the proof adduced in support of the
-charge, but on the nature of the charge actually
made. Gikjashankar v. Gop.axji (1905)

I. L. R. 30 Bom. 241

8. JURISDICTION OF REVENUE OFFICERS.

See Jurisdiction of Revenue Coukt

Revenue Officer

■ — Ben^gal Tenancy Amendment Act {Betujnl Act III
of 1S9S), s. 9 — '''Every settlement of rent or decision of a
dispute by a Revenue Officer " — Bengal Tenancy Act
{VIII of J8S5), ss. 102, 104— Settlement Officer,
jurisdiction of. The words " every settlement of
rent or decision of a dispute by a Revenue Officer "
are applicable only to those cases which a Revenue
: Officer has jurisdiction to try, and are not apphcable
.to a decision of a Settlement Officer as to the vahdity
of a lakhiraj title under s. 104 of the Bengal Tenancy
Act of 1885. Radha Kishore Manikya v. Durga-
NATH Bhuttacharjee (1905)

1. 1.. E. 32 Calc. 162

.JURISDICTION OF CIVIL COURT.

Col.

1. Abuse, Defamation, AND Slander 6068

2. Caste 6069

3. Court of Wards . . . 6081

4. Customary Payments . . . 6082

5. Duties or Cesses . . . 6082

6. Endowment .... 6082

7. Fees and Collections at Shrines 6083

8. Ferries 6084

9. Fishery Rights .... 6085

10. Foreign and Native Rulers . 6085

11. Hat 6087

12. Magistrate's Orders, Interfer-

ence WITH .... 6088

" CASES. ( 6066 )

JURISDICTION OF CIVIL

contd.

court-
Co!.

13. Mamlatdar's Court

. 6093

14. Marriages .

. 6093

15. Municipal Bodies

. 6094

16. Offices and Honocrs, Right to

. 6097

17. Partnership

. 6107

18. Penalties .

. 6107

19. Political Officers

6107

20. POTTAHS

6108

21. Privacy, Invasion of .

6110

22. Processions

6111

23. Public Ways, Obstruction

6112

24. Registration of Tenures

6114

25. Religion

6116

26. Rent and Revenue Suits^

(a) Bombay . . . .6118

(b) Madras .... 6123

(d) OuDE 6152

27. Revenue .... 6153

28. Revenue Courts—

(a) Generally .... 6154

(b) Partition .... 6155

29. Sambalpur .... 6175

30. Sanads 6175

31. Services, Performance of . 6176

32. Societies 6176

33. Statutory Powers, Persons with 6176

34. Survey Awards . . . 6177

35. Trespass 6177

See Abatement of PvExt

1 B. L. R. F. B. 93
See Act IX of 1847, ss. 6. 0

I. L. R. 14 Calc. 67
I. L. R. 17 Calc. 590
L. R. 17 I. A. 40
See Act XX of 1863

15 B. L. R. 167 : 23 W. R. 453

I. L. R. 3 Calc. 324

2 C. L. R. 128

I. L. R. 4 Mad. 157

I. L. R. 9 Calc. 133

I. li. R. 17 Mad. 212

See Agra Tenancy Act (II of 1901) s. 4

1. L. R. 31 All. 342

See Bengal Act III of 1870

13 B. L. R. 214, 215 note ;
216 note ; 217 note

( 6067 )

DIGEST OF CASES.

( 6068 )

JUHISDICTION OF CIVIL COURT—

contd.

See Bengal Municipal Act (Bengal
Act III OF 1884).

I. Ii. R. 35 Calc. 859

See Bengal Tenancy Act, ss. 101 to
lllA. . I. L. R. 28 Calc. 28

See Collector . I, L. R. 5 All. 314

I. L. R. 9 All. 43

I. L. R. 11 Bom. 478

I. L. R. 12 Bom. 371

I. L. R. 11 All. 94

See Court of Wards Act (Beng. Act
IX of 1879), ss. 6, 7 and 10.

I. L. R. 29 Calc. 638

See Crown Lands.

I. L. E. 25 Mad. 268

See High Court, Jurisdiction of.

See Jurisdiction of Revenue Court.

See Madras Hereditary Village
Offices Act, s. 3.

I. L. R. 26 Mad, 490

See OuDH Rent Act, 1886. ss. 52 (:?), 108
13 G. W. N. 1093

See Partition — Jurisdiction op Civil

Court in Suits respecting Partition.

See Pensions Act (XXIII of 1871), ss.

4 AND 6.

See Practice — Civil Cases — Execution
Proceedings. I. L. R. 28 Calc. 353
See Receiver I. L. R. 28 Calc. 790
See Right of Suit.

See Sale in Execution of Decree —
Distribution of Sale-proceeds.

I. L. R. 29 Calc. 773
See Small Cause Court, Mofussil —
Jurisdiction — Military Men.

2 B. Ii. R. S. IST. 3 ; 7
See Small Cause Court, Presidency
Towns — Jurisdiction — Breach of
Promise of Marriage.

I. Ii. R. 24 Mad. 652

See Sonthal Pergunnahs Settlement.

I. L. R 18 Calc. 133 ; 146

I. L. R. 22 Calc. 473

See Tax L L. R. 26 Bom. 294

— Magistrate's orders, interference

with—

See Mamlatdar, jurisdiction of.

I. L. R. 26 Bom. 353

— marriage —

See Restitution of Conjugai Rights
I. Ii. R. 28 Calc. 37

JURISDICTIOIT OP CIVIL COURT—

contd.

I. ABUSE, DEFAMATION, AND SLANDER.

1. Abuse — Suit for damages. A
suit will lie in the Civil Court to recover damages
for abuse. Kali Kumar Mitter v. Ramgati
Bhuttacharji. 6 B. L. R. Ap. 99

16 W. R. 84 note

Sreenath Mookerjee v. Komul Kurmokar

16 W. R. 83
Kanoo Mundle v. Rahumoollah Mundle

W. R. 1864, 269
Gholam Hossein v. Hur Gobind Doss

l.W. R. 19

TuKEE V. Khoshdel Biswas 6 "W. R. 151

OSSEEMOODDEEN V. FUTTEH MaHOMED

7 W. R. 259

2. Suit for damage^

for verbal abuse — Hindus in mofussil of Bombay —
Special damage. In a suit between Hindus in the
Bombay mofussil, damages may be recovered for
mere verbal abuse, without proof of actual damage-
resulting therefrom to the plaintiff. Kashiram
VALAD Krishna v. Bhadu Bapuji

7 Bom. A. C. 17

3. Suit for damages

— Absence of special damage. An action will lie for
damages on account of abuse received, even though
plaintifE's professional position and gains are not in-
jured thereby. Gour Chunder Puteetundee v.
Clay. . . 8 W. R. 256

And See Nilmadhab Mookerjee v. Dookeram
Khottah 15 B. L. R. 161

WOOZEERUNNISSA BiBEE V. MaHOMED HoSSEIN

15 B. L. R. 166 note
Hossein v. Bakir Ali W. B. 1864, 302

Phoolbasee Kooer v. Parjun Singh

12 W. R. 369

4. Action for abuse

without proof of special damage — Malicious defa-
mation. The rule of EngUsh law which prohibits,
except in certain cases, an action for damages for
oral defamation unless special damage is alleged,
being founded on no reasonable basis, should not be
adopted by the Courts of British India. Semble : An
action will not lie for vulgar abuse or hasty expres-
sions, but for malicious or culpable oral defamation
an action will lie. Parvati v. Mannar

I. L. R. 8 Mad. 175

5. Defamation — Slander — D ef a-

mation — Verbal abuse — Special daviage. A suit to
recover damages for verbal abuse of a gross charac-
ter may be maintained without proof of con-
sequential damage. Ibin Hosein v. Hatdar

I. L. R. V^ Calc. 109

6. — Slander — Dama-

ges — Consequential damage. A suit for damages foB
defamation of character involving loss of social posi-
tion and injury to reputation will lie without proof

( 6069 )

DIGEST OF CASES.

( 6070 )

JURISDICTION OF CIVIL COURT—

contd.

1. ABUSE, DEFAMATION, AND SLANDER—

concld.

of special damage. Parvathi v. 3Iannar, I. L. R.
8 31 ad. 176, and Srikant Rai v. Sakouri Saha, 3
C. L. R. JSl, followed. Teailokya Nath Ghose
V. Chundra Nath Dutt I. L. R. 12 Calc. 424

7. Cause of action

— Damages for insziU, loss of reputation, and mental
•pain, by the use of abusive language — Suit for libel
and slander — Special damage. Held, by the ma-
jority of the Full Bench (Maclean, C.J., Macpher-
SON, Hill, and Jenkins, JJ., Ghose, J., dissent-
ing), that the mere use of abusive and insulting lan-
guage, such as sala (wife's brother), haramzada (base
born or bastard), soor (pig), baper beta (son of the
father, that is, ironically, bastard), apart from defa-
mation, is not actionable irrespective of any special
damage. Per Ghose, J.— A case like the present
should be decided according to the principles of
justice, equity, and good conscience, and therefore it
is but just and right that a person thus vilified, who
has suffered from insult and mental pain, should be
entitled to maintain an action irrespective of any
special damage. Girish Chunder Mitteb v.
Jatadhari Sadukhan I. Ij. R. 26 Cale. 653
3 C. W. N. 551

2. CASTE.

1. — Suits as to caste questions

— Suit for restoration to caste and for damages and
compensation for cost of restoration. A suit will lie
for a declaration of right to restoration to caste,
and for damages and compensation for cost of
restoration to caste. When the defendant denies
that he made any accusation, and it is proved that
he made one, and that it alone led to the excom-
munication of the plaintiff, the defendant should be
allowed an opportunity of proving that the accusa-
tion was not false, before a decree for damages ia
passed against him. Gopal Gurain v. Gueain
7 W. R, 299

See Sudhara-m Patar v. Sudharam

3 B. Ii. R. A. C. 91

Bom. Reg. II of

JS27, s. I'^Suit for certain fees as mehtars. The
plaintiffs sued to recover from the defendant certain
fees alleged to be due to them, as mehtars of the
caste, on the marriage of the daughter of the
defendant. The defendant denied that the plaint-
iffs were his mehtars. Hdd, that the question
between the parties was a caste question with which
the Courts were precluded from interfering by
Bombay Regulation II of 1827, s. 21. Murau
Daya v. Nagrl4 Ganeshia . 6 Bom. A. C. 17

Ambu valad Appaji v. Khanu Sakharam

6 Bom. A. C. 19 note

3. — - Dispute as to

right to gifts for services as Muha Brahmins— Suit
on award setting rights. The plaintiff and the

JURISDICTION OF CIVIL COURT—

contd.

2. CASTE— coniff.

defendants were Maha Brahmins and members of
one family. Disputes having arisen as to the gifts
made to them on account of their services, the
matter was referred to arbitration, and the arbi-
trators awarded that each principal member of the
family should, in turn for periods of fifteen days,
take, respectively, gifts made during such period.
The plaintiff claimed and sued to recover a gift
presented to some of the defendants during a period
at which under the terms of the awanl, he was enti-
tled to the family gains. Held, that the claim
made in the suit differed in toto from a claim to a
voluntary or a personal offering, and that it was
entertainable in a Civil Court. Doorga Pershad
V. Bddree . . . . 6 N. W. 189

4. Suit for recovery

of money value of holy cakes — Question of religious
character. The plaintiffs, members of the Tangalai
sect of Brahmins, sued the defendants, the trustees
of a temple at Conjeveram, for the recovery of the
money value of certain holy cakes which they
alleged they were entitledto receive from the defend-
ants for commencing the recital of a Sanscrit
verse and reading a certain Tamil chant, wliich
offices they (plaintiffs) had the hereditary right of
performing in the said temple. The Munsif decreed
in favour of some of the plaintiffs. The defendants
appealed. The Civil Judge dismissed the suit on the
ground that the question incidentally involved was
one of a religious character. Held, that the Civil
Judge was wrong ; that the claim was for a specific
pecuniary benefit, to which plaintiffs declared
themselves entitled on condition of reciting certain
hymns ; and that undoubtedly the right to such
benefits is a question which the Courts are bound to
entertain. Narasimma Chariar v. Kristna Tata
Chaeiar . . . . 6 Mad. 449

Suit as to reli-

gious rights and ceremonies — Suit by Temple Com-
mittee against poojaris — Civil Procedure Code^
1877, s. 11. Suits as to rehgious rights or ceremonies
which involved no question of the right to property
or to an office, are not suits of a civil nature, nor are
they intended to be brought within the jurisdiction
of the Civil Courts. A suit, therefore, by the plaint-
iffs, as members of a committee of management of
a Hindu temple to compel the hereditary priests
of the temple to take out certain ornaments from
the treasury of tlie managing committee, and to
place them upon the image of the god, on such high
days and holidays as might from time to time be
appointed by the managing committee, and to obtain
a declaration that the said ornament.?, after they
had been so taken out of the treasury, were in
the custody of the priests, and that they were re-
sponsible for their safe custody was held unsustain-
able. S. 11 of the Qvil Procedure Code (Act X of
1877) introduces no new law, but merely declares
the law as it has always been administered.
Vastjdev v. Vamanji . L L. R. 5 Bom. 80

{ 6071 )

DIGEST OF CASES.

( 6072 )

JUHISDICTION OF CIVIL COURT—

contd.

2. CASTE— conid.

6. Jtirisdiction in

tnatiers of religion — Cmtse of action — Dancing-
girl's offfrings rejected by priest — Disturbance of
rigid of public worship. A dancing-girl's offerings
to the idol having been rejected by the officiating
priest of the temple, on the ground that she had
been guilty of misconduct : — Held, that, if the former
had been wrongfully prevented from taking part in
the public worship, she was entitled to relief from a
Civil Court. Vengamtjthu v. Pandaveswara
Gtjrukal . I. L. R. 6 Mad. 151

7, Suit to recover

cooking-vessels — Bo7n. Beg. II of 1827, .y. 21. A
claim by the members of one division of a caste
against the members of the other division of that
caste, for recovery of half of certain vessels belong-
ing to the caste or their value, is a caste question
witliin the meaning of s. 21 of Regulation II of 1827,
and cannot be made the subject-matter of a suit
cognizable by a Civil Court. Girdhar v. Kalya
I. L R. 5 Bom, 83

NEJICH.A.ND V. SaVAICHAND

I. li. R. 5 Bom. 84 note

Bom. Reg. II of

1827, s. 21 — Suit for fees appurtenant to the office
of guru. A claim to a caste office and to be entitled
to perform the honorary duties of that office or to
enjoy privileges and honours at the hands of the
members of the caste in virtue of that office is a caste
question, and not cognizable by a Civil Court. The
same rule applies where there are fees appurtenant
to the office. The plaintiff belonged to the Mahar
caste and sued to recover from the defendants cer-
tain fees which, he alleged, were appurtenant to the
office of guru to the members of the Mahar caste
living in a certain village. The defendants denied
that the plaintiff was their guru. Both the lower
Coxirts dismissed the suit on the ground that it
involved a caste question. The High Court, on
second appeal, confirmed the decrees of the Courts
below. Murari v. Suba I. L. R. 6 Bom. 725

Dispute

ri'jht to office of khatib — Mahomedan law — Bom.
Beg. II of 1827, s. 21. S. 21 of Regulation II of
1827 has no application to suits between Mahome-
dans. A dispute as to the right to an office, such
as the office of khatib (or preacher) is said to be
among Mahomedans, is not a caste question
within the meaning of the terms as used in the
section : a suit to estabhsh the right to such an
office will therefore he in a CSvil Court. Hashim
Saheb valad Ahmed Saheb v. Httseinsha valad
Kabimsha Fakir . I. L. R. 13 Bom. 429
10. Powers of the

head of a caste in respect of caste customs. In a
matter relating to caste customs over which the
ecclesiastical chief has jurisdiction, and exercises
his jurisdiction with due care and in conformity to
the usage of caste, the Civil Courts cannot interfere.
A guru as head of a caste has jurisdiction to deal with

JURISDICTION or CIVIL COURT—

contd.

2. CASTE— cow^d.

all matters relating to the autonomy of caste
according to recognized caste customs. Queen
V. Sankara, I. L. R. 6 Mad. 381, and uMurati v.
Suba, I. L. R. 6 Bom. 725, cited and followed.
Ganapati Bhatta v. Bharati Swami

I. L. R. 17 Mad. 222

11.

Suit for right to

exclusive worship — Bom. Reg. II of 1827, s. 21 —
Right of suit. Four persons of the Chitpavan caste
brought a suit in 1876, alleging that they and the
members of their caste, in common with certain
other castes, possessed the exclusive right of entry
and worship in the sanctuary of a temple, and that
the defendants, members of the Palshe caste,
not being of the privileged castes, infringed that
right in 1871 and thereafter by entering the sanc-
tuary and performing worship therein. They
prayed for a declaration of their right and an injunc-
tion restraining the defendants from interfering
with it. The defendants contended (infer alia) that
the suit as constituted was not maintainable ; that
the question was a caste question within the mean--
ing of s. 21 of Regulation II of 1827, and not there-
fore within the cognizance of the Civil Courts ; and
that the suit was barred by the law of hmitation.
HeM, that this case was within the cognizance of the
Qvil Courts. The right of exclusive worship of an
idol at a particular place set up by a caste is a civil
right for adjudication by the Civil Court, and not
a caste question. The meaning of s. 26 of Regula-
tion II of 1827 is that the internal economy of a caste
is not to be interfered with by the Courts, not that
no possible matter of litigation in which a question
of caste usage, or right, or privilege may arise can
be taken cognizance of. Anandrav Bhikaji
Phadke v. Shankak Daji Charya

I. L. R. 7 Bom. 323

12.

Bo7n. Reg. II of

1827, s. 21 — Resolution of caste excluding Brahmans
from caste feasts — Majority of caste, right of. The
plaintiffs and defendants xeve members of the
Kutchi Dossa Oswal caste of Hindus residing in
Bombay. The plaintiffs alleged that by a resolu-
tion of the caste unanimously passed at a caste
meeting held on the 19th September 1893, a com-
mittee, of which they were members, was appointed
on behalf of the caste for the purpose of preventing
Brahmans from attending the feasts of the caste
in the caste oart in Bombay, and that, on the 16th
and 18th July 1894, by resolutions unanimously
passed, the members of the caste were strictly
prohibited from feasting any Brahman in the caste
oart, and the committee was authorized not to allow
any casteman, wishing to feast Brahmans in the oart
to use the caste oart and caste vessels, and, if
necessarj', to take legal steps in the matter. The
plaint alleged that the defendants proposed to give
a feast in the caste oart, to which they had invited
Brahmans, and prayed for an injunction, and for a
declaration that the above resolutions were vahdly
passed and were binding upon the defendants and

( 6073 )

DIGEST OF CASES.

( 6074 )

jrmiSDICTION- OF CIVIL COURT—

contd-

2. CASTE— cowW.

on the caste. The defendants contended that the
subject-matter of the suit was a caste question and
not cognizable by a Civil Court, and further that the
meetings referred to in the plaint had not been duly
convened, and that the resolutions were invahd and
not binding on those who were not present and who
did not consent to them. They alleged that
Brahmans had from time immemorial as a matter
of course attended the caste feasts, and they denied
that the plaintiffs or any members of the caste had
now a right to exclude them. The Court found as
a fact that a large majority of the caste were in
favour of excluding Brahmans from caste feasts.
Held, that the majority of the caste having arrived
at a bond fide decision that the convenience and
comfort of the caste were best advanced by the
exclusion of the Brahmans from their oart, it was
not a case in which the Court could say that the
decision was so subversive of the interest of the
minority as to amount to a practical confiscation of
their property or denial of their rights and that the
Court ought to give effect to it. The Court accord-
ingly passed a decree in terms of the prayer of the
plaint prohibiting the defendants from bringing
Brahmans into the oart to dine so long as the resolu-
tion of the caste prohibiting the practice continued
in force. The Court does not dechne to give effect
to the expressed wishes of the majority of a caste as
to the management and custody of caste property,
which the minority seek to set at naught, by reason
of the suit involving a caste question. In matters
relating to the management of caste property and
the administration of its affairs the majority of the
caste has authority to control the minority. But
the Court will not by its decree enable the majority
to make a tyrannical use of its power. It would not
assist the majority to deprive without cause the
minority of their right to use what is the common
property of all or give effect to a resolution passed
in violation of the rules of natural justice or of a
directly confiscatory nature. Lalji Sham J i v.
Walji Waedhman . I. L. R. 19 Bom, 507

13.

1827,

Bom. Reg. II of

s. 21 — Arrangement between members of the
caste for the purpose of paying off the debts of the
caste — Mahomedans. The term " caste " in s. 21
of Regulation II of 1827 is not necessarily confined
to Hindus, but comprises any well defined native
community governed for certain internal purposes
by its own rules and regulations. An agreement
embodying an arrangement come to between mem-
bers of the caste for the purpose of paying off the
debts of the caste, out of certain contributions to
the caste funds, involves a caste question, and a suit
on such agreement is not maintainble in the CvrW
Courts. Abdul Kadir v. Dhaema

I. L. R. 20 Bom. 190

14. Mochi caste at

Sural — Dismissal of delegates by the caste — Suit
for injunction and damages. The hereditary priest
of the Mochi caste deputed certain persons to

JURISDICTION OF CIVIL COURT—

contd.

2. CASTE— con<(i.

perform rehgious ceremonies for the caste. The
caste, however, dismissed these delegates, and the
defendants, who vvere members of the caste, em-
ployed other persons to perform certain rehgious
ceremonies for them. The plaintiffs sued for an
injunction and damages alleging that they were
entitled to perform these ceremonies and to receive
the fees. Held, that the Court had no jurisdiction.
The Civil Court could not enquire into the validity
or otherwise of the decision of the caste in the
matter. The parties were bound by it, and the
plaintiffs could not legallj' complain of the action of
the defendant, who had done no more than obey
that decision. Dayaram Hargovax v. Jethabhat
Lakhmiram . I. L. R. 20 Bom. 784

15.

Bom. Reg. II of

1S27, s. 21 — Suits to recover caste property from a
member of the caste. S. 21 of Regulation II of 1827
does not debar a Civil Court from taking cosnizance
of a suit in which a question of a caste rule or of
membership of a caste may be raised by way of
answer to a claim for property or on a breach of
contract. The section provides that there shall be
no interference on the part of the Court in caste
questions. But to take evidence of the customary
law of a caste, to recognize the law and the vote of a
majority as given effect to by the law, is not to
interfere in caste questions ; it is simply to recognize
the existence of caste as corporations with civil
rights and an autonomy suitable to the purposes of
their existence. Certain members of one division of
a caste borrowed vessels for use from the priest of
that division, and then seceding to the other division
refused to return them. A suit was brought to
recover possession of the vessels in question.
Held, that the suit was cognizable by the Civil Court
notwithstanding that incidentally a question as
to the relations of the caste divisions might arise
for decision. Peagji Kalax v. Govixd Gopal

I. L. R. 11 Bom. 534

16.

Secession from

a caste— Property purchased by seceding section during
period of secession — Reunion of section with the
caste — Suit by caste to recover from a secedin-g member
property purchased by seceding section. The plaintiff
and the defendant belonged to the caste of Visnagra
Brahmans, which in 1841 divided into two sections
kno^^•n as the big ami little sections. While this
division continued, viz., in the year 1868, certain
lands were purchased by the small section in the
names of the plaintiff, the defendant, and three other
persons. In 1873 the members of the small section,
with the exception of the defendant, reunited with
the other members of the caste. The lands, how-
ever, remained in the possession of the defend-
ant. The plaintiff, on behalf of the caste,
brought this suit to recover the lands from the
defendant. Both the lower Courts held that the
case was not cognizable by the Civil Courts, as it
involved a caste question. On appeal by the plaint-
iff, the High Court reversed the decrees of the

( 6075 )

DIGEST OF CASES.

( 6076 )

JURISDICTION OP CIVIL COURT—

contd.

2. CASTE— conW.

Courts below and sent back the case for re-trial.
The lands in question had been admittedly pur-
chased out of their own funds and for their own
purposes by the members of the caste who had
seceded ; and the question as to whom those lands
now belonged to, being one between the caste
and one of the seceding members who had pur-
chased them, could not be a caste question, unless
the small seceding section itself could be regarded
(and it was not so contended) as a separate and
distinct caste. Under these circumstances, it was
for the Civil Court alone to determine who was en-
titled to the property, although it might be incident-
ally necessary for that purpose to enquire into the
usage and practice (if any) of caste sections, situated
as the seceding section of this caste had been with
respect to the property in question. If the lands
had been originally the property of the caste, the
question would have been between the caste and a
section of it, and would have been a caste question,
and not cognizable by the Civil Court. Mehta
Jethalal v. Jamiatram Laltjbhai

I. L. R. 12 Bom. 225

17.

Civil Procedure

Code, s. 11 — Hindu Marriage Act {XV of 1856), s.

5 Hindu law, marriage — Widoiu re-marriage—

Exclusion from temple — Excommunication. The
plaintiff, who was a Smarta Brahman, but had
married a widow (whose first marriage had not
been consummated), alleged that he had made a
vow to present an ofiering in a certain temple, and
that the defendants, who were the committee of the
temple, had obstructed and prevented him from
entertaining the inner shrine (where orthodox Brah-
mans usually make their offerings), asserting that
he was disqualified to enter by reason of his having
married a widow contrary to Hindu shastras ; and
lie sued for damages for the above obstruction and
imputation, for a declaration that he was entitled to
enter the shrine as a Brahman, and for an injunc-
tion restraining the defendants from interfering
with his exercise of this right. Held, (i) that the
right claimed was of a civil nature and within the
cognizance of the Civil Courts ; (ii) that the question
to be determined was not a question of the plaintiff's
legal status, since a Brahman widow is at liberty to
re-marrj' under Act XV of 1 856, but it was a ques-
tion of caste status, in respect of a caste institution ;
(iii) that in order to determine the above question,
the Courts must inquire (a) what was the usage of
the temple as regards admission into the inner
shrine for the purposes of worship at the date of the
suit, or the presumable intention of the religious
foundation as regards such admission, and (6)
whether according to such usage or presumable in-
tention of the foundation, those who secede from
the caste custom as to re-marriage of women are
outside the class of beneficiaries as regards the
right of admission into the inner shrine as above.
Venkatachalapati v. Subbarayadu

I. L. R. 13 Mad. 293

JURISDICTION OF CIVIL COURT—

contd.

2. CASTE— confd.

18.

Rigid of suit

by hhalcats of religious fraternity expelled by other
members for re-admission into fraternity — Powers
of fraternity to impose fiiie and cause expulsion
until fine is paid — Cause of action. The plaintiffs
were some of the bhakats or members of a satra
or religious fraternity, and they claimed the right to
enter the kirtanghar or prayer-hall, and perform
their prayers and other rights therein. They alleged
in the plaint that the management of the affairs of
the satra, " including the distribution of honorarium
and offerings and the appointment and dismissal of
the satria," or head of the fraternity, was vested in
the samuha, or entire body of bhakats, and that
they and their forefathers had been from genera-
tion to generation in receipt of the honorarium and
offerings, and had been performing the rites and
ceremonies according to the custom of the satra
until they had been obstructed and interfered with
bj' the defendants in such performance, and had been
expelled from the kirtanghar. The prayer of the
plaint was that the plaintiff's right to enter the.
kirtanghar to perform the said rites and ceremonies
and to receive their share of the offerings might be
established ; that the kirtanghar from which they
had been dispossessed might be made over to them
for the purpose of such performance, and that a
proliibitory injunction might be granted enjoining
the defendants not to obstruct them in such perfor-
mance. The defendants, who were the satria and
the other members of the fraternity forming the
majority of the entire body of bhakats, denied the
rights claimed by the plaintiffs as bhakats, and
stated that the satra was governed by the satria and
a select body of bhakats, that the plaintiff' No. 1
had received mantra or spiritual initiation from
one Saruram, contrary to the rules of the fraternity,
and had been convicted, moreover, of a criminal
offence, and a fine of RlOO had accordingly been
imposed on Mm and his partizans by the governing
bodj' of the satra, whose orders they had disobeyed
by refusing to pay the fine, and they had therefore
been excluded from entering the kirtanghar ;
and the defendants contended that the Civil Court
had no jurisdiction in the matter, and that the suit
was therefore not maintainable. The lower Courts
held that the Civil Court could entertain the suit,
and they made decrees practically ordering the
admission of the plaintiff's to the kirtanghar on their
complying with the order imposing the fine. Held,
that the rules laid down in the English cases as to
expulsion from clubs or voluntary associations
wliich people are free to join or not, and where any
one who joins may well be taken to be bound not only
by its general rules, but also by any special orders
made by its members with regard to him in accord-
ance with those rules, are not applicable with regard
to caste unions or religious fraternities in India, to
which people belong not of choice, but of necessity
being born in their respective castes, or sects, and
the consequences of exclusion from which are far
more serious and affect a person's status in a far

( 6077 )

DIGEST OF CASES.

( 6078 )

JURISDICTIOIJ- OP CIVIL COURT—

contd.

2. CASTE— confi.

greater degree than those of expulsion from a club.
In such religious castes or fraternities the protection
of Courts of Justice, even though presided over by
Judges of a different religious persuasion, against
expulsion, is much more needed than in clubs or
voluntary associations. Cases of expulsion from
them were therefore cognizable by the Civil Courts.
Sudharam Fatar v. Sudharam, 3 B. L. R. A. C. 91 :
11 W. R. 457 ; Hopkimon v. Marquis of Exeter,
L. R. 5 Eg. 6o ; and Dawkins v. Antrohws, L. R. 17
Ch. D. 616, distinguished. Gopal Giirain v. Giirain,
7 W. R. 299, and Ramlcant v. Ram Lochan, S. D. A.
{lS-59) -5-55, followed. Advocate General of Bombay
V. Haim Devakar, I. L. R. 11 Bom. 1S5, not followed.
Held, further, that even if the rules laid down in
the English cases were applicable, they were subject
to a quahfieation which leaves it open to a Court
of Justice to interfere with the decision of a private
association on grounds, one of which is that the
■decision is contrary to natural justice. The decision
of the lower Courts, therefore, ordering the re-ad-
mission of the plaintiffs to the kirtanghar, on their
■comphdng with the order imposing the fine, was not
such an interference with the decision of the domes-
tic tribunal of the parties as is opposed to the cases
cited as to clubs, etc., as it would have been contrary
to natural justice for the fraternity to enforce such
•exclusion after the reason for it had ceased, and
make the disqualification of the plaintiffs perman-
ent. Held, on the statements in the plaint, that the
plaintiffs had a cause of action, and the suit could
not have been properly dismissed on the finding
of fact by the lower Appellate Court that the plaint-
iffs' exclusion from the kirtanghar was justified by
their refusal to pay the fine imposed on them.
Jagannath Churn v. Akali Dassia

I. L. R. 21 Calc. 463

19.

Infringement of

■caste rule — Defamation by caste resolution — Truth
of allegation — A defence to civil suit for defamation
— Privilege — Caste resolution depriving a member
of caste of man-pan invitntion — Sumptuary law
enforced by caste — Botn. Reg. II of 1827, cl. 21, s. 1 —
Cause of action — Right of suit — Onu-t probandi.
In the year 1887, some members of the Pathare
Kshatria caste considered that the outlay in connec-
tion with the munj, marriage and other ceremonies,
by the members of the caste, were unnecessarily
and unreasonably large, and that this was the cause
(if ill-feeling in the caste. A meeting purporting to
lie a meeting of the whole caste, was held at Malad
in yalsette on the 5th June 1887. Several rules
framed with the view of lessening these expenses
were then passed. The fourth rule was as follows :
" The practice of bringing a naikin to sing in the
mundup on the day of munj or marriage ceremony
is to be put a stop to." The preamble to the rules
contained the following clause : " Every family in
the caste is to act according to these rules, and if
any transgression of these rules on the part of any
one be proved he shall be considered as an offender
of the caste." Copies of these rules and their

JURISDICTION" OF CIVIL COURT—

contd.

2. CASTE— conW.

preamble, together forming " the resolution, " were
printed and sent to the various divisions of the caste
with a letter. The letter expressed the hope that
the various sections would take steps to prevent
the rules being transgressed. The plaintiff and the
defendants belonged to the Girgaum section of
the caste. This section approved of the resolution
and acted on it. In May 1888, the plaintiff's grand-
nephew's munj was celebrated at the plaintiff's
house, and the plaintiff, in breach of the above rules,
employed a naikin to sing at it. On the 9th March
1889, D (defendant No. 6y, who was secretary of the
Girgaum section of the caste, wrote to the plaintiff,
drawing his attention to his breach of the rules,
and calhng upon him to show cause, before the
Girgaum section of the caste, why he should not
be liable to censure, and why the man-pan invita-
tion to him by the caste should not be stopped.
A correspondence then took place between the
plaintiff and D, in which the plaintiff alleged that
the rules in question had not been laid down by
the whole body of the caste, and that they were fre-
quently transgressed. He declined to pay any
attention to communications on the subject. A
meeting of the Girgaum section of the caste was
then held, at which twenty-two members were
present and a resolution was passed, declaring that
the plaintiff had transgressed the caste rules, and
depriving him of the man-pan invitation by the
caste until a contrary resolution should be arrived
at by the Chargaum and Desh. It was also ordered
that this resolution should be communicated to the
Chargaum (local diWsions of the caste) and Desh
(head- quarters of the caste), which subsequently
accepted and approved of the resolution, which
thus became known to the whole caste. The
defendants were among the twenty-two members
of the Girgaum section of the caste who passed the
resolution. The plaintiff sued them claiming
R5,000 damages, alleging that they had passed the
said resolution and circulated it among the caste,
and complaining that they had " attempted to carry
out the said resolution by preventing the usual man-
pan invitation being sent to the plaintiff, and the
depriving of the plaintiff of this invitation is equi-
valent to excommunicating him from his commu-
nity." Held, that the circumstances, even assuming
that the defendants were actively instrumental in
getting the resolution carried, did not constitute a
cause of action of which the Court could take cogni-
zance. The plaintiff had not been libelled by "the
publication of the resolution. The facts stated in the
resolution were all true, and the publication of true
statements regarding an individual does not consti-
tute a cause of action in a Civil Court, though, if
the publication be unjustifiable, it may be an
offence against the provisions of the Penal Code.
The occasion also of the publication was privileged.
The defendants were justified in informing the caste-
fellows of the matter relating to the caste, which it
was for the common interest of the caste to know.
So far, therefore, as the suit was a suit for libel or

( 6079 )

DIGEST OF CASES.

( 6080 )

JUKISDICTION OF CIVHj COURT—

cotitd.

2. CASTE— conW.

defamation, it failed. Held, also, that the fact that
the defendants had been actively instrumental in
passing the resolution depriving the plaintiff of his
man -pan did not constitute a cause of action. The
right to the invitation was not a legal right. It Was
a social privilege which caste usages only entitled a
casteman to receive, and the caste was the only
tribunal to which a casteman deprived of that
privilege could resort. The question was a caste
question unconnected with property or legal right.
Held, also, that the fact that the rule which the
resolution enforced might be in fact ultra vires
and one which the caste could not validly pass,
did not operate to give the Court jurisdiction. As
long as a caste in passing a rule confines the enforce-
ment of it to social caste sanctions,and does not seek
to deprive a man of property or legal rights for dis-
obeying it, the Court has no jurisdiction to enquire
into the nature of the rule. The Court cannot
dictate to the caste what rules it shall and what it
shall not lay down for its guidance. The rule in
question was a sumptuary rule, and there was no
reason why the caste should not enact it if it pleased.
Among the issues raised by the defendant on
the pleadings were the following, viz., (3) whether
the rules were not duly approved and adopted by
the caste, and (G) whether the publication of the
resolution was not privileged. It was contended
for the plaintiff that the burden of proving these
issues was on the defendant, and that he (the
plaintiff) might reserve his evidence on them until
the defendant had given evidence upon them.
Held, that the onus of showing that the rules were
not properly passed lay on the plaintiff. Raohtt-

KATH DaMODHAB f. JaNAKDHAN GoPAL

I. li. B. 15 Bom. 599

20. Excommunication — Court's

power to inquire into the validity of the order of
excommunication — Burden of jiroof. The plaintiff,
who was pujari of a Jain temple, sued for an
injunction to restrain the defendants from enter-
ing the temple and worshipping the idol on the
ground of their excommunication by the Swami for
misconduct. Defendants pleaded that they had
been guilty of no offence for svhich a sentence of
excommunication could properly be passed, and
that the inquiry into their conduct was held by
the Swami ex parte and without any notice being
given to them. Held, that the Civil Courts has
jurisdiction to inquire into the vaUdity of the
sentence of excommunication, and that it lay on
the plaintiffs who sought to enforce the sentence
and by virtue of it to deprive the defendants of
their civil rights, to prove that it was passed on
justifiable grounds and after a fair and proper
inquiry. Appaya v. Padappa

I. li. B. 23 Bom. 122

21.

Excommunication

of member from caste — Presumption of good
faith. The caste having presumably acted in good
faith and proceeded regularly according to the

JUBISDICTION OF CIVIL COUBT—

contd.

2. CASTE— conic?.

custom in excommunicating a member, it was heW
that the Civil Court could not interfere with its
action or examine the question on its merits.
Keshavlal V Bai Girja I. L. B. 24 Bom. 13

22.

Caste question —

Excommunication from caste — Bombay Regulation
II of 1827, s. 21, cl. 1— Civil Procedure Code (Act
XIV of 1882), s. 11— Zanzibar to be treated as a dis-
trict in the Presidency of Bombay — Zanzibar
Order in Council, 1884 — Defamation — Privilege.
Under the Zanzibar Order in Council, 1884, Zanzibar
is to be treated as a " Zillah or district in the Presi-
dency of Bombay," and therefore Bombay Regula-
tion II of 1827, s. 21, cl. 1, applies to Zanzibar.
Under Bombay Regulation II of 1827, s. 21, cl. 1,
only such caste suits as claim damages for injury to
caste or character of the plaintiff are maintainable in
Civil Courts. But when a claim to property is
involved, the Regulation is no bar so far as that
claim is concerned. The Courts in that case hav^e a
distinct and separate jurisdiction, resting not on the
caste dispute but on the claim to property. Plaint-
iffs and defendants were residents of Zanzibar,
and belonged to the Visa Oswal section of the Bania
caste. The defendants were Shettias of the caste,
and as such had issued an order forbidding their
caste-fellows to attend a certain feast given by the
members of the Lovana caste. The plaintiffs,
considering the order to be illegal and arbitrary,
attended the feast. The defendants thereupon-
summoned a caste meeting, and, without calling
on the plaintiffs for an explanation, excommunica-
ted them and notified the fact through the caste
Gor or priest at Zanzibar. The plaintiffs there-
upon brought this suit against the defendants, com-
plaining of the excommunication and praying (i)
for a declaration that their excommunication was
illegal and that they were still members of the caste
and (ii) for damages for defamation. Held, with
regard to the excommunication complained of, that
no relief could be granted. No claim to property
was involved. It was a caste question, over which
the Civil Courts had no jurisdiction under Bombay
Regulation II of 1827, s. 21, cl. 1. Held, as to
the claim for damages for defamation, that the
announcement of the caste decision was a duty in-
cumbent on the defendants as Shetties of the caste-
and was therefore privileged so far as it was
communicated only to members of the caste.
The evidence did not disclose any communication
beyond that limit, and no evidence of malice was
given. Per Chandavarkae, J. — Roughly speak-
ing, a suit raising a caste question must fall within
one of three classes. First, it may be a suit brought
by a member of a caste, complaining of expulsion
and asking for a declaration that the expulsion is
illegal and that he is still a member, and as such
entitled to its social privileges. In cases of this class
there is no cause of action, and the Civil Courts
have no jurisdiction, although the plaintiff alleges
that he has not been heard in his defence or that

^ 6081 )

DIGEST OF CASES.

( 6082 )

JURISDICTION OF CIVIL COURT—

contd-

2. CASTE—concld.
his excommunication has been for the breach of a
rule which either never existed or which the plaintiff,
in fact, never violated. The question is entirely
a caste question, and falls within Bombay Regu-
lation 11 of 1827, s. 21, cl. 1. Secondly, when the
result of excommunication is to deprive a man of
his civil rights, a Civil Court has jurisdiction to
entertain a suit brought to set aside such excommuni-
cation as illegal and to inquire into the merits of the
case. But even here its jurisdiction is limited.
All the Court can inquire into is whether the order
of excommunication was passed bond fide in accord-
ance with natural justice, i.e., after a due hearing
given to the party excommunicated, at a regularly
convened meeting of the caste which passed the
order, or by a person duly authorized by the cast^,to
pass it, in accordance with either caste usage or rule
and for an offence against that usage or rule which
the man excommunicated did as a matter of fact
commit. If these conditions are fulfilled, the Court
must hold that the caste acted within its powers
as a domestic tribunal, with whose discretion it will
not interfere — the Court in that case having juris-
diction to inquire, from the point of view of the
caste, not of the Court, into the reasonableness or
justifiable character of the rule for a breach of
which the order of excommunication was passed.
Thirdly, suits claiming relief for loss of caste
and character : these are in the nature of suits for
libel, and fall within the law applicable to such suits.
Nathu Velji v. Keshawji Hirachand (1901)

I. L. R. 26 Bom. 174

3. COURT OE WARDS.
Suit against

Court of

Wards — Superintendence over minor. No civil
action will lie against the Court of Wards in respect
of anything done by it regarding the person and
education of any minor entrusted to its superinten-
dence. Collector of Beerbuoo:.i v. Mundakinee
Debia .... W.R. 1864, 332

The Court subsequently in this case declined to
pass an order to stay the minor's removal under an
order of the Board of Revenue directing such remo-
val to the Ward's Institution in Calcutta, pending an
appeal to the Privy Council, holding that it had no
power to make such order. Collector of Beer-
BHOOM V. Mundakinee Debee 1 W. R. Mis. 7

And afterwards held that the Civil Court was

competent to carry out an order that the Court of

Wards was entitled to the custody of the minor.

Mundakinee Debee v. Collector of Beerbhoom

1 W. R. Mis. 27

2. Power of High Court—

Restraining Court of Wards jrom bestowing minor
in marriage. The High Court cannot restrain the
Court of Wards, whether acting with or without
jurisdiction, from interference in the bestowal in
marriage of a minor. Gtjjadhur Persiiaud v.
Narain Singh . . 5 W. R. Mis. 41

VOL. III.

JURISDICTION OF CIVIL COURT—

contd.

4. CUSTOMARY PAYMENTS.

Vatandar kulkarni and

ra,iya.t— Bombay Hrreditiry Office Act {III of
1874) —Perquisites, right to. ' Bombay Act III of
1874 does not deprive the Civil Court of its jurisdic-
tion to try the question whether a vatandar kulkarni
is entitled to receive perquisites from his raiyat.
Vishnu Hari Kulkarni 7j. Ganu Trimbvk

I. L. R. 12 Bom. 278

2. Suit for a declaration that

plaintiflF was kadim naik, and that defend-
ant was not entitled to aay payment from
him in respect of the Government revenue
payable by the plaintiflF— .-Ic/ XI of lS'>-2, s.
/" — Inandar of the village — Government not a
party. In a suit for a declaration that the plaintifif
was the kadim naik of a particular village, and that
the defendant, who was the inamdar of the village,
was not entitled to levy any contribution from the
plaintiff in respect of the sum which the defendant
had to pay to the Government as agreed upon
between him and the Government, the lower Court
dismissed the claim for want of jurisdiction under
s. 7 of Act XI of 1852 and for non- joinder of Gov-
ernment as a party: — Held, reversing the decree of
the lower Court, that the question involved in the
case being whether the plaintiff was a l<adim naik
as regards the defendant, the suit was not barred by
s. 7 of Act XI of 1852, the object of which is con-
fined to providing a summary mode of disposing
of claims to exemption from payment of the
revenue as against Government. Held, further,
that Government was not a necessary party to
such a suit. Irapa bin jVLvlapa Naik v. Apasaheb
Irbasapa Desai . . I. L. R. 16 Bom. 649

5. DUTIES OR CESSES.

1. Suit for fees from persons

using m.arket-place. Held, that a claim to re-
ceive fees as chowdhree from persons using a certain
market-place is not a right which can be enforced
by the Courts of law. Bhinuk Chowdhree r.
Collector of Jounpore . . 2 Agra 271
Claim for dues for privilege

of selling pan on hat days — Revenue Court.
A claim for a legal due or cess arising out of the
privilege of selling pan on hat days is cognizable in
the Civil Court. Hurrish Chunder Koond v.
GoPAL Barooye . 3 W. R., Act X, 158

6. ENDOWMENT.

1. Suit for removal of manager

of charitable trust on ground of malversa-
tion—J/w^f. Reg. VII of JSV. A suit brought
for the removal of defendant from the manage-
ment of certain charitable trusts on the ground of
malversation was dismissed by the Civil Judge,
because he considered that the provisions of Regula-
tion VII of 1817 required that apphcation should

(3083 )

DIGEST OF CASES.

( 6084 )

JURISDICTION OF CIVIL COURT—

contd.

6. ENDOWMENT— cowcW.

first be made in such cases to the Board of Revenue.
Held, on ap[)eal, that the Civil Judge was wrong.
Regulation VII of 1817 is clearly intended to be
supplementary of existing remedies, and the Courts
had unquestionably jurisdiction in such cases prior
to its enactment. The expression in s. 14 of the
Regulation is not intended to limit the jurisdiction
of the Courts to the cases contemplated in it, but
rather to provide against the Hnality of erroneous
orders that may be jiassed by the Board of Revenue
under the Regulation. Ponnambala Mudaliyar
V. Varaguna Rama Pandia Chinnatamisiar

7 Mad. 117

2. — Removal of trustees — Tms-

tees misapplying funds bi/ 7nistnke— Scheme of
managetnent of Hindu tetnple, form of — Religious
endowment — Hindu temple. Manager of. Courts of
equity in England have always allowed themselves
some latitude in dealing with the trustees of a public
charity who under a mistake have misapplied the
funds of the institution, and Courts in India can
similarly allow themselves some degree of latitude in
dealing with the managers and jjujaries of public
Hindu temples, who for a long time have been accus-
tomed to deem themselves owners of the temples of
which in law they are only trustees, managers and
priests and to overlook the past while taking care
that for the future the administration of the temple
is placed on a sound footing. The Courts have
jurisdiction to deal with the managers of public
Hindu temples, and, if necessary, for the good of the
religious endowment, to rejmove them from their
position as managers. There is, however, no
hard-and-fast rule that every manaoer of
shrine, who has arrogated to himself the
position of owner, should be removed from his trust ;
each case must be decided with reference to its
circumstances. Chintaman v. Dhondo, I. L. R. 15
Bom. 612, referred to. Damodar Bhatji v. Bhat
Bhogilal Kasandas . I. L. R. 22 Bom. 493

7. FEES AND COLLECTIONS AT SHRINES.

1. Suit for collections of a

shrine—Right of property in site—Right of office.
A suit will lie for the collections of a shrine, either
in right of property in the place or of lawful and
estabhshed office attached to it. Sheo Schaye
Dhamee v. Bhooree Mahtoon , 3 W. R. 33

2. ~ Suit for share of collections

m return for spiritual instruction. Held,

that a suit for a share of the collections made from
" jujmans in return for spiritual instruction " is not
cognizable in the Civil Courts. Choonnee Lal v.
GouREE SHiTNKcrR . . 1 Agra 84

3. Suit for share of oflTerings
received by priest— Cow;mc< to pay share of
fees. A suit will lie by one priest for a share of
offerings received by another, if there be a contract

JURISDICTION OF CIVIL COURT—

contd.

7. FEES AND COLLECTIONS AT SHRINES

— concld.

to pav over such share. Jugdanund Gosamee v.
Kessub Nund Gosamee . W. R. 1864, 146
But otherwise no suit will lie. Mubdun Mohun
Ghosal v. Nuboram Chtjckerbutty

2 W. R. 69

4. Suit for share of fees re-
ceived by Hindu -priest— Contract to pay
share of fees. The plaintiffs sued the defendants in
the Civil Court for a declaration of their right by
contract to share in the ministrations at a certain
ghat, and to recover a sum of R7r)-9 as their share,
under the contract, of moneys received by the
defendants at that ghat. Held, that the suit
woWd lie. Magju Pandaen v. Ramdyal Tewari
8 B. L. R. 50 : 15 W. R. 531
Becharam Benerjee v. Thakurmani Debi

8 B. L. R. 53 note : 10 W. R. 114

Chtjni Pandey v. Birjo Pandey

13 C. L. R. 49

5. - Suit for fees received by

village priest — Jujman — Employment of another
priest to perform service. In the presidency of
Bombay a village priest can maintain a suit against
a jujman who has employed another priest to per-
form ceremonies, and recover the amount of the fee
which would properly be payable to him if he had
been employed to perform such ceremonies. As a
rule, the fee paid to the priest actually employed
would afford a fair indication of the amount reco-
verable by the plaintiff under such circumstances.
Semhle : A jujman ought to pay to the village or
city priest, if not emploj-ed, a fee similar in amount
to that which he (the jujman) pays to the priest
actually employed, if the latter were not unreason-
ably larse. Dinanath Abaji v. Sadashiv Hari
Madhave rj . . . I. L. R. 3 Bom. 9

8. FERRIES.

Suit for compensation for

resumption of ferry by Government— CmZ
Procedure Code, s. 1—Beng. Reg. VI of ISIO. A
suit for compensation for the loss sustained by rea-
son of the resumption by Government, under Regu-
lation VI of 1819, of a ferry is not cognizable by the
Civil Courts. Collector of Pubna v. Rojl^nath
Tagoke. Magistrate of Maldah v. Golebun-
nessa . B. L. R. Sup. Vol. 630 : 7 W. R. 191
2. : — Invasion of rights of pri-
vate ferry by Government — Beng. Reg. VI of
ISl'J, s. 3. S. 3, Regulation VI of 1819, while it em-
powers the Government to invite private rights of
ferry by the establishment of a public ferry, does not
debar the Civil Court from giving relief in cases in
which a Magistrate may, without the sanction of
Government, have invaded a private right of ferry ;
nor does that Regulation prohibit Civil Courts from
taking cognizance of matters connected with public

( 6085 )

DIGEST OF CASES.

JURISDICTION OF CIVIL COUBT-

contd.

8. FERniES—concId.

ferries. Ram Gobind Singh
Gh.\zeepoke .

Macistra^te op
4N. W. 146

9. FISHERY RIGHTS.
Suit for damages and

junction to restrain illegal interference
with plaintiff's right to fish in the sea.— Loiv-
uater mark. The District Court may, when the de-
fendants reside within its local jurisdiction, try a
suit for damages for and restrain by injunction an
alleged illegal distiirbance of the plaintiff's right
to fish and use fishing stakes and nets fixed in the
sea below low-water mark and within three miles
of it. Baban Ma yacha v. Nagu Shravucha

I. L. E. 2 Bom. 19

10. FOREIGN AND NATIVE RULERS.
1. Ruling Chief, suit against-

Civil Procedure Code, 1882, s. 433— Consent
of Governor-General in Council — Consent given
subsequent to institution of suit — Waiver by defend-
ant of objection to consent — Civil Procedure Code,
s. 373. Under s. 433 of the Civil Procedure Code
(Act XIV of 1882), a consent given by the Governor-
General in Council after the commencement of a suit
against a Ruling Chief — a consent not to the suit
being instituted, but to its being proceeded with —
is not a sufficient consent. If the consent has not
been obtained before the commencement of the suit,
the Court should dismiss the suit or allow the
plaintiff to withdraw it with liberty to bring a fresh
suit under s. 373 of the Civil Procedure Code.
Wliere an insufficient consent has been obtained
by the plaintiff, the defendant may by his con-
duct waive the defect, so that, notwithstanding
the absence of a valid consent under the section,
the suit can be heard and determined on its
merits. Chandulal Khusilalji v. Awad bin
Umar Sultan Nawaz Jung Bahadur

I. L. B. 21 Bom. 351

Suit against independent

Sovereign Frince— Personal privilef/e — Thaku)
of Palitana. An independent sovereign prince is
privileged from suit in the Courts of British India.
The Thakur of Palitana is an independent sovereign
prince. Ladkuvarbiiai v. Sarsanoji Pratab-
SANGJi ... 7 Bom. O, C. 150

3. Suit againt ex-King of Oudh

—Act VIII of 1862, s. 4. S. 4, Act VIII of
1862, did not prevent the Civil Courts from enter-
taining a suit against the ex-King of Oudh without
the consent of the Government. In the viatUr of
the petition of Begum Bibee . . 7 W. B. 168

4. Suit againt Tipperah Bajah

—Soveriegn Prince—Zamindari in British territory.
The succession to the raj of Tipperah being of itself
beyond the jurisdiction of British Gvil Courts,
it would be out of their power, in a suit relating

JUEISDICTION" OF CIVIL COUBT—

contd.

10. FOREIGN AND NATIVE RULERS— co»»^.

solely to the title of the Rajah to a zamindari in
British territory, to go into the question of the
Rajah's title to tlie raj. The Rajah being a
foreign power, the Courts would accept the title to
the raj of the person recognized as Rajah by the
British Government. But where a zamindari lying
within British territory, and not shown to be an
appai^ge of the raj, formed the subject of a suit : —
Held, that, since tlie right to the raj had, by a long
course of litigation, been made by the parties
themselves to depend, as it were, upon the right to
his zamindari, the Civil Courts had jurisdiction to
deal with the title to the latter : and that the law
applicable to the suit would be the Hindu law modi-
fied by the kulacchar or local custom regulating suc-
cession and inheritance in the Tipperah family.
The recognition of the Rajah by the British
Government is less a matter of right than one of
discretion, his position being that of a petty Rajah
of a hill district, rather than that of a sovereign
power. Held, in concurrence with the first Court,
upon a consideration of the whole evidence and
the conduct of the late Rajah, as weU as that of the
plaintiff and the Ranis of the late Rajah, that
though the legitimacy of the plaintiff had been satis-
factorily established, and it was showTi that his
mother had been married to the late Rajah in the
shantigrihita form, yet it was clear that defendant
had been created -lubaraj by the late Rajah, and the
plaintiff's claim must accordingly be dismissed with
costs. Rajkumar Nobodip Chun'dro Deb Bur-
MUN V. Bra Chundra JIanikya Bahadur

25 W. B. 404, 407 note

Zamindari it

British territory — Civil Procedure Code, 1877

. 483. Save in respect of his zamindari in British
territory, the Rajah of Tipperah is not subject to
the jurisdiction of the Courts in British India, except
in cases mentioned in els. (a), {b), (c), s. 433, Act X of
1877. Nil Kristo Deb Barmano v. Bir Chunder
Tlmkur, 3 B. L. R. P- C. 13, and Rajkumar
Nobodip Chundro Deb Burraun v. Bir Chundra, 25

W. R; 407, cited. Bir Chuxdek ^Ianickya Baha-
dur ^-'ishan Chunder Thakur . 3 C. L. B 417

Q ^-.—— — Sovereign prince

Suit against sovereign prince with respect to

land owned by him, and situnte in British India—
Mainteiuince— Charge on immoveable property-
Benefits to arise out of land — General Clauses Con-
solidation Act {I of 1S6S), s.2, cl.5-Cif Proce-
dure Code {Act X of 1877), Ch. XXI III, s. 433.
Tlie Raiah of Hill Tipperah is a sovereign prmce
within the meaning of Ch. XXVIII of Act X of
1877, and cannot be sued personally in the Courts of
British India except under the conditions specified
in s. 433 of that Act. The fact of a defendant not
subject to the jurisdiction of a Court having waived
his privilege in previous suits brought against him
does not give the Court jurisdiction to entertain a
suit against him in which he pleatls that he is not

9h2

( 6087 )

DIGEST OF CASES.

( G088 )

JURISDICTION OF CIVIL. COURT—

contd.

10. FOREIGN AND NATIVE RULERS— co«cW.

subject to such jurisdiction. A suit for maintenance
which seeivs to have the maintenance made a charge
on immoveable property is not a suit for immoveable
property within the meaning of cl. (c), s. 43.3, Act X
of 1877^! nor is it a suit for " benefits to arise out of
land " within the meaning of the definition of the
words " immoveable property " contained in Act I of
1868, s, 2, cl. 5. A claim for maintenance is not a
charge upon immoveable property. A member of
the royal family of Hill Tipperah brought a suit
against the Rajah to have it declared that with re-
spect to certain land situate within Britishlndia and
forming portion of the possessions of the Rajah, he
was entitled to the post of Jubaraj and to succeed to
such land on the death of the Rajah, and also claim
maintenance and sought to have it declared that
such maintenance should be a charge on the reve-
nues of the land situate in British India. Held, that
the British Courts had no jurisdiction to entertain
the suit, it not being one for immoveable property.
Bker Chuxder Maxikkya v. Raj Koomar Nobo-
DEEP Chttnder Deb Burmono

I. L. R. 9 Cale. 535 : 12 C. L. R. 465

7. . Civil Procedure

Code, 1877, s. 433 — Suit for charge for maintenance
on independent Sovereign State. In a suit against
the ^Maharajah of Hill Tipperah, which is an indepen-
dent Sovereign State, for maintenance, it appeared
that, in a former suit tried in British India in lespect
of the same claim. the Court had ordered the amount
of the maintenance for which he gave a decree to be
paid by the defendant Maharajah and from his
estate of R, which was in British India. Held, that
the suit, not being a suit for immoveable property,
would not he, and, further, that the decree m the
former suit was not res judicata to show that the
maintenance claimed in the present suit was a charge
upon the zamindari of R, so as to give the Court
jurisdiction under cl. (c) of s. 433 of the Civil Pro-
cedure Code. BiR Chunder Manikhva v. Ishan
ChtjnderTagore . . 12 C. L, R. 473

8, Suit against the Desai of

Patadi— ii!?tZm|7 Chief — Code of Civil Procedure
(XIV of 1882), ss. 432 and 433. The Desai of
Patadi, a talukhdar of the fifth class in the province
of Kathiawar, in virtue of his being the proprietoi:
of seven \illages within the British Political Agency
of Kathiawar, is a ruling chief within the meaning
of ss. 432 and 433 of the Code of Civil Procedure
(XIV of 1882), and can only be sued with the consent
of the Government in a competent Court not subor-
dinate tO'the District Court. Kambhai v. Himat-
srsGJi . . . I. L. R. 8 Bom. 415

II. HAT.

1. Suit to determine right of

person to hold market on certain days. The

Civil Courts have jurisdiction to determine whether
or no a person has a right to hold a market on cer-

JURISDICTION OF CIVIL COURT—

contd.

11. HAT— conc/d.

tain davs. Thakoor Sixgh v. Sheopershad
QjH.vR ' . . . . 5 N. W. &

12. MAGISTRATES ORDERS, INTERFERENCE
WITH.

1. Suit to set aside order of

Magistrate opening a road. The Civil Court
have jurisdiction to set aside an order by a Deputy
Magistrate to open a road over lands. Kadir
Mahomed r. Mahomed Safir . 1 W. R. 277

2. Interference of Magistrate

with private right of way. The interference
of a Magistrate with a private right of way, being
an act beyond his jurisdiction, may be remedied
by suit in the Civil Courts. Sham Dossw. Bhola
Doss . . . . 1 W. R. 324

3. Order of Magistrate to re-
move encroachment. A regular suit hes in the
Civil Court from the proceedings of a Magistrate
ordering the removal of an encroachment not treat-
ed as a local nuisance. Anund Chunder Chatter-
.JEE V. RoKHO Tari'x Chatterjee 2 W. R. 287

4. Suit to set aside order of

Magistrate declaring road -puhlio— Removal
of obstructio7i to road. The Civil Courts have
jurisdiction to entertain a suit, which if successful
would have the effect of setting aside and rendering
inoperative an order of a Magistrate declaring a
road to be a pubhc one, and directing the removal
of bamboo posts across the road as an obstruction.
Ram Shoddy Ghose v. Juttadharee Haldar

7 W. R 95

5. Suit to set aside order of

Magistrate removing obstruction — Criminal
Procedure Code, 18^1, •'>■. 308. Where a Magistrate
made an order for the removal of a shed as being an
obstruction to a thoroughfare under s. 308 of
the Code of Criminal Procedure, and the owner of
the shed on disobeying the order was fined under
s. 291 of the Penal Code : — Held, that a suit would
not lie in the Civil Court to establish the owner's
right to keep up the shed. Bakas Ram Sahoo v.
Chummuk Ram . . 7 W. R. 11

6. Suit for declaration of

right to land encroached on by road. A
plaintiff is not debarred from suing in the Civil
Courts for a declaration of his rights to land
encroached upon by the -svidening of a road, on
the ground that the order of the Magistrate directing
the road to be kept up as widened is liable to be
reversed as illegal. Azeezoollah Gazee v. Bunk
Beharee Roy .... 7 W. R. 48

7. Suit to set aside order of

Magistrate as to private property — Crimi)ial
Procedure Code, 1861, s. 308. S. 308 of the Code
of Criminal Procedure referred to nuisances in a
thorouglifare or public place and had nothing to do
with the interior of private houses, and therefore
did not bar the jurisdiction of the Civil Courts

DIGEST OF CASES.

( t;o9o )

JURISDICTION OF CIVIL COURT—

contd.

12. MAGISTRATE'S ORDERS, INTERFER-
ENCE WITH— contd.

in a suit brought to set aside an order of a Deputy
Magistrate restricting some of the owners and occu-
piers of a house from the free use of their own
portion of joint property. Eshax Chunder
Banerjee v. Nund Coomar Banerjee

8 W. R. 239

Obstructing public road-

Criminal Procedure Code (Act XXV of 1861),
s. 320. A Magistrate found, under s. 320 of the
Criminal Procedure Code, on a dispute between R
and P that the public had been in the habit of
using a certain road over P'.s land for carts, etc.,
and accordingly directed it to be opened [i.e., by
removal of obstructions). P brought a regular suit
against R, in which the issue was, whether the road
was public or not : this was found in the negative
except as to a footpath ; costs were apportioned, and
the cart- way was ordered to be stopped. R appealed
on the merits, and P filed a cross-objection : the first
judgment was affirmed. On special appeal by R
as to the mode of dealing with the proofs : — Held
the finding of the Civil Court was beyond its com-
l^etence, and the suit was not such as contem-
plated by s. 320, viz., " to test the right of exclusive
possession." Pyari Lal v. Rookee

3 B. L. R. A. C. 305 : 12 W. R. 199
Upholding on review. Rookee lk Pyari Lal

3 B. L. R. Ap, 43 : 11 W. R. 434

9. Suit to restrain order of
Magistrate as to nuisance— /S«/J to set aside
order of Magistrate under s. 308, Code of Criminal
Procedure {Act XXV of 18ol) — Nuisance. No
suit will lie in a Civil Court to set aside an order
duly made by a Magistrate under Ch. XX, s. 308 of
the Code of Criminal Procedure, relating to nui-
sances, or to restrain him from carrying such order
into effect. Ujalamayi Dasi v. Chandra
Kumar Neogi . . 4 B. L. R. F. B. 24

s.c. Oojulmoye Dossee v. Chandra Koomar
Neooee . . . . 12 W. R. F. B. 18

10. Order of Magistrate as to

right to use of water — Suit to set aside Magis-
trate's decision under s. 320, Criniinal Procedure
Code, 1861. A suit to get rid of the effect of an
order passed by a Deputy Magistrate under s. 320,
Code of Criminal Procedure, declaring a certain
liver to be a public thoroughfare, and to have it
declared that yjlaintiffs are entitled with others to
use the water of the said river by raising bunds or
dams in the bed of the stream as heretofore, will not
lie in the Civil Court, the only way in which the
Deputy Magistrate's order can be got rid of in the
Civil Court being by distinct proof of plaintiff's title
to exclusive possession of the right of water
■claimed. Ram Kristo Sarcar v. Kaloo

18 W. R. 284

IL Suit for possession and

damages after order of Magistrate for re-

JURISDICTION OF CIVIL COURT—

contd.

12. MAGISTRATE'S ORDERS, INTERFER-
ENCE WITH— contd.

moval of h-Ut— Criminal Procedure Code (Act
VIII of 1869), ss. 308-310, 311— Removal of house
hy order of Magistrate — Suit for possession and for
damages. A Magistrate issued an order under s. 30ei
of Act VIII of 1869, calling upon A to remove his
hut as being an obstruction to a public highway.
A claimed a jury under s. 310, the majority of
whom found that the Jlagistrate's order reason-
able and proper. A refused to obey the order, and
his hut was removed under s. 311. A sued the
Magistrate for possession of the land and for
damage >. Held, that such suit would not lie.
Meechoo Chunder Sarcar v. Ravenshaw

11 B. L. R. 9 : 19 W. R. 345

12. Suit for possession after

order of Criminal Court — Suit to set aside
order of Magistrate under s. 318, Criminal Proce-
dure Code, 1861 — Suit for possession. An award
of a Magistrate under the Criminal Procedure Code,
1861, s. 318, cannot be set aside by a decree of
the Civil Court for possession, but is good to retain
the party in whose favour it is passed in possession
of the land, until the opposite party has established
his right thereto by civil suit for exclusive posses-
sion. Kalee Narain Bose v. Anund Moyee
GooPTA 21 W. R. 79

13. Suit for ejectment after

dispossession of plaintiflF uader order of
Magistrate. An ejectment suit on the allega-
tion that the defendants had, under colour of an
order of the Magistrate, dispossessed the plaintiff of
private property belonging to him, was held to be
cogaizable bv the Civil Court. Deb Chunder Doss
V. Joy Chunder Pal . • 22 W. R. 461

14. Suit to cancel order of

Magistrate Criminal Procedure Code, 1861,
s. 62 (Act X of 18:2), s. 018— Right to hold market
on certain days. Any person is entitled to establish
a market on his own land, and the owner of a neigh-
bouring market has no right of suit for the loss which
may ensue from the establishment of the new
market. The legality of an order made by a Magis-
trate, under s. 02 of Act XXV of 18(51 (s. .518
of Act X of 1872), can be questioned in the Civil
Court. The Civil Courts are, however, bound to
respect an order passed by a Magistrate when he is
acting within his jurisdiction, i.e., within the
powers conferred on him by law ; and if his proceed-
ings show due diligence in satisfying himself of the
! necessity of the order, they cannot question his dis-
] cretion. In a suit to establish a right to continue a
market and to hold it on certain fixed days by can-
celment of the order of a Magistrate directing that
it should not be held on those days for fear of riot
and of loss to the owner of another market, the
plaintiff's right to hold the market on the days
named in the plaint was decreed, subject to the
prohibition created by the order of the Magistrate.
Kedarnath v. Rughonath . 6 N. W. 104

{ 6091 )

DIGEST OF CASES.

( 6092 )

JURISDICTION OF CIVIL COURT—

contd-

12. MAGISTRATE'S ORDERS, INTERFER-
ENCE WITB.— contd.

15. Sight of way —

Criminal Procedure Code, 1872, ss. ■521-523 —
Estoppel. A Civil Court is not competent to set
aside the order of a Magistrate made under s. 521
of the Code of Criminal Procedure, on the ground
that such order was made without jurisdiction,
because the land in respect of which the order was
made is private propertj-, and not a thoroughfare
or public place. A Civil Court can, however, irre-
spective of an order made under s. 521 by a Magis-
trate, try the Cjuestion whether the land which
formed the subject of such order is private property,
and not a thorouglifare or public j^lace, as between
the jjarties to such suit and those who claim under
them. Per Field, J. — A person who, on receipt of
an order made by a Magistrate under s. 521 of the
Code of Criminal Procedure, declaring the exist-
ence of a right of way over such person's lands,
demands, under s. 523 of the same Code, the
appointment of a jury to try whether such order
was reasonable, is not by such action estopped from
afterwards bringing a suit in a Civil Court, seeking
to establish his right to the exclusive enjoj^ment of
the same lands. Mutty Ram Sahoo v. Mohi Lall
Roy . I. L. B. 6 Calc. 291 : 7 C. L. R. 433

16.

— - Suit for declaration of right
and. conflrmation of possession— Criminal
Procedure Code (Act X of 18S2) s. 133—Iie?noval
of nuisance — Public way — CaM.se of action. On the
6th of July 1882, the Joint Magistrate of Krishnagur
on a complaint made by A, ordered B to demolish a
cow-shed which he had built some months previ-
ously, the land on which the cow-shed had been built
being part of a public way. Thereupon B brought
a suit against A for a declaration of his right to
enjoy the land as his private property and for con-
firmation of posses.sion. The plaint did not allege
that B, in causing the Magistrate to initiate proceed-
ings against A, had been actuated by malicious
motives and had acted with the intention of wrong-
fully injuring the plaintiff. Held, that the suit
would not lie. Mutty Ram Shaoo v. Mold Lall Roy,
I. L. R. <) Calc. 291, dissented from. Khoda-

BUKSH MtJNDtJL V. MoNGLAI MUNDAL

I. L. R. 14 Calc. 6.0

17.

Suit for declaration of

title to lands claimed as public road— Crimi-
nal Procedure Code, ,s. 13/~, order under. An owner of
land has a right to bring a suit for declaration of his
right against any one of the public who formally
claims to use such lands as a public road and who
has thereby endangered the title of the owner.
(Such a suit is not barred by an order of a Criminal
Court under s. 137 of the Criminal Procedure Code.
Khodabukah Mundul v. Monglai Mundid, I. L. R.
14 Calc, 60, overruled. Chuni Lall v. Ramkri-
SHEN Sahu . . . I. L. R. 15 Calc. 460

18. ■■ Declaration of title to land

—Specific Relief Act {/ of 18? i), .v. 42— Criminal

JURISDICTIOlSr OF CIVIL COURT—

contd.

12. MAGISTRATE'S ORDERS, INTERFER-
ENCE WITH— contd.

Procedure Code {Act X of 1882), s. 133— Order
hy Magistrate under s. 133 of the Criminal Proce-
dure Code for removal of an obstruction standing
upon certain land. A Magistrate made an order
against the plaintiff, under s. 133 of the Criminal
Procedure Code (Act X of 1882), for the removal of
a certain otta standing in front of the plaintiff's
shop as an obstruction to the public way. The
plaintiff thereupon brought this suit against the
Secretary of State for India in Council for a declar-
ation that the land on which the otta stood was
his property and not that of the Government. It
was contended thatthe jurisdiction of the Court to
make the declaration prayed for was taken away by
the last clause of s. 133, which provides that " no
order made by a Magistrate under this section
shall be called in c_[uestion in any Civil Court."
Held, that the Magistrate's order under this section
was not a conclusive determination of the question
of title. Seceetaky of State for India v.
Jethabhai Kalida.s . I. L. R. 17 Bom. 293

19.

Order for maintenance-

Order of Magistrate for maintenance under s. 488
of the Code of Criminal Procedure does not oust the
jurisdiction of Civil Courts — No injunction to restrain
jyroceedings on order under s. 488. The first defend-
ant obtained an order for maintenance under
s. 488 of the Code of Criminal Procedure against
plaintiff. In a suit brought by plaintiff subse-
quently against the first defendant, and her minor
son, the second defendant, for a declaration that the
defendants had no right to a share in or mainten-
ance out of his properties : Held, (i) that the suit
was not one to set aside the Magistrate's order for
maintenance and was sustainable. The Magistrate's
order did not take away the jurisdiction of the Civil
Courts, (ii) No suit will lie for an injunction to
restrain proceedings under an order made by a
Magistrate under s. 488 of the Code of Criminal
Procedure. Veeran v. Ayyammah, 2 Weir 615,
approved. Mahomed Abid Ali Kumar Kadar v.
Ludden Sahiba, I. L. R. 14 Calc. 276, followed.
Suhhudra v. Basdeo Duhe, I. L. R. IS All. 29,
explained. Deraje Malinga Naika v. Marati
Kaveki(]907) . . I. L. R. 30 Mad. 400

20.

Jurisdiction of High Court

— Civil jurisdiction — Civil Procedure Code {Act
XIV of 1882), s. 622— Charter Act {24 and 25
Vict., C. 104, s. 15— Nature of High Court's
revisional jurisdiction — Criminal proceedings, stay
of, pending civil appeal — Stay not justifiable,
ulien it would defeat ends of justice. Where the
District Judge has initiated proceedings under s.
476 of the Criminal Procedure Code : Held, first,
that it is doubtful, if the High Court exercising
civil jurisdiction has power to stay the criminal
proceedings. Held, secondly, that the provisions
of s. 15 of the Charter Act of 1861 do not appear
to give the High Court power to interfere in the-

( (5093 )

DIGEST OF CASES.

( 6094 )

JURISDICTION OF CIVIL COURT—

contrl.

12. MAGISTRATE'S ORDERS, INTERFER-
ENCE WlTR—concld.

case ; Baj Kumari Deli v. Bama Sundari Debi,
I. L. R. 23 Calc. 610, followed. Held, thirdly,
that the High Court must have regard to the
nature of the revisional jurisdiction and must not
allow what would virtually be an appeal from the
order ; In re Alamder Husain, I. L. R. 23 All.
249, followed in principle. Held, lastly, that
when on the evidence in a case, the Court below is
of opinion that it is in the highest degree desirable
that the enquiry should be conducted both in the
interests of justice as well as of the accused and
of all parties concerned as speedily as possible, the
High Court would not be justified in staying
proceedings, merely because a civil appeal from
the judgment, out of which the criminal proceed-
ings were initiated, is pending in the High Court.
In re Bal Gangadhar Tilak, I. L. R. 26 Bom.
785, followed. Hem Chandra Ray v. Atal
Behaki Ray (1908) . I. L. R. 35 Calc. 909

13. MAMLATDARS' COURT.

Jtirisdiction-

Mamlatdar's Courts Act (Bom. Act III of 1876),
s, 4—Mamlatdars'' Courts Act [Bom. Act II of 1906),
s. 5 — Mamlatdars' Court — Suit far 'possession of n
house situate within a town — Jurisdiction — Act of
procedure— Repealed statute. A suit for the recovei y
of possession of a house situate within a town was
instituted in the Court of a Mamlatdar while the
Mamlatdars' Courts Act (Bom. Act III of 1876)
was in force, but before the suit was finally decided
that Act was repealed and the Mamlatdars' Courts
Act (Bom. Act II of 1906) had come into operation.
Held, that the Mamlatdar had no jurisdiction to
decide the suit. Vajechand v. Nandram (1907)

I. L. R. 31 Bom, 545

14. MARRIAGES.

1. Suit to declare Hindu mar-
riage invalid. A suit for a declaration that
an alleged Hindu marriage is invalid is a suit of
civil nature, and will lie in the ordinary Civil Courts.
AUNJONA Dasi v. Prahlad Chaxdra (Jhose

6 B. L. R. 243 : 14 W. R. 403
Reversing s.c. . . . 14 W. R. 132

2. A suit to have a

Hindu marriage declared invalid, or otherwise,
where no rights of property depend on the validity or
invalidity of the marriage, cannot be maintained in
the Civil Courts under Act VIII of 1859. Ram-

SAKAN MiTTER V. RaKHAL DaSS DtJTT

6 B. L. R. 244 note : U W. R. 412

3. Suit to enforce contract of

marriage. A suit to enforce a contract of mar-
riage cannot be entertained in the Civil Courts
of this country. Bhugun v. Runjan

24 W. R. 380

JURISDICTION" OF CIVIL COURT-

contd.

14. MARRIAGES— concW.

4. — Suit for breach of contract

to give in m^arriage — Consideration — Promise
by brother to give .sister in marriage. A certain
amount of money had been paid by a Hindu to an-
other in consideration of a promise by the latter
that he would give his sister in marriage to the
former. The girl's mother was alive. In a suit for
recovery of the amount on the ground that the
latter had failed to fulfil his promise : — Held, that
the suit would lie. Jogeswar Chakuabatti
V. Ranch ICauki Chakrabatti

5 B. L R. 395 : 14 W. R. 154

See Ram Chand Sen v. Attdaito Sen

1. L. R. 10 Calc. 1054

And Lallun Monee Dossee v. Nobix Moutx
SiNGH . . . . 25 W. R. 32

Suit for jactitation of mar-
riage— Jurisdiction of Courts in British India to
entertain such a suit betiveen Mahomedans. Held,
that a suit for jactitation of marriage will lie in a
Civil Court in British India, and is not within the
ruling of the Privy Council in Nilmony Singh v.
Rally Churn Bhattacharjee, 14 B. L. R. 382 : L. R. 2
I. A. 83. AzMAT Ali v. Mahmud-ul-nissa

I. L. R. 20 All. 96

6. Suit for restitution of con-
jugal rights. A suit for restitution of conjugal
rights by the husband against the wife will lie in
the Civil Courts. Jhotun Bibee v. Amekr CiUNn
1 Ind. Jur. N. S. 317 : 5 W. R. 105

Hur Sookha v. Pooran
7.

2 Agra 115

Supreme Court,

Bombay, Ecclesiastical side — Parsis. The Supreme
Court of Bombay, on its ecclesiastical side, was de-
clared incompetent to entertain a suit for the restitu-
tion of conjugal rights at the instance of a Parsi
wife against her husband. Ardaseer CursetJee v.
Perozeboye

4 W, R. P. C. 91 : 6 Moo. I. A. 348

15. MLNlCtPAL BODIES.

1. — Municipal body acting in

excess of its jurisdiction — Control over muni-
cipal bodies. Municipal as well as other public
boards are included wit'un the restraining and regu-
lating jurisdiction of the Civil Courts of the country
which are competent to inquire into and conti-ol the
action of ^.ublic bodies \\hc'n they have acted in
excess or contravention of the powers conferred
upon them. Brindabun Chunper Roy v. Muni-
cipal Commissioners of Serampore

19 W. R. 309

2. — Suit to set aside order as

to assessment of rates — Beny. Act 111 of
1864, s. 33 — Municipal Commii>sioners — Appeal
against asse-'isment. A suit to set aside an order
made on a appeal under s. 33 of Bengal Act III
of 1864 to the Municipal Commissioners against a

( 6095

DIGEST OF CASES.

( 6096 )

JURISDICTION OF CIVIL COURT—

contd.

15. MUNICIPAL BODIES— conii.

rate assessment, and to reduce the tax levied by
thera under that Act, on the ground that they have
tried the appeal in an improper way, and have
exceeded their powers and acted contrary to the
pro\nsions of the Act cannot be maintained in the
(,!ivil Courts. The decision of the Commissioners
in such an appeal is absolutely final. Manessur
Dass v. Collector and Mcnicipal Commissioners
OF Chapra . . . I. L. R. 1 Calc. 409

3. • Question of liability to pay-
tax — Suit to recover Municipal tax— Tax levied
unier erroneous supposition. A suit was brought
in the Court of the District Munsif of Guntiu- to re-
cover the amount of a profession tax for 1876 levied
by the Municipal Commissioners, of Guutur on the
plaintiff upon the supposition that he carried on
business as an agent, wliile in fact he carried on no
such business. The defendant pleaded that the
Court had no jurisdiction. Upon reference : — Hdd
by the High Court (Innes, J. and Muttusajii
Ayyar, J.), that the Court had not jurisdiction to
adjudicate on the matter in contest. Leman v.
Dnmodaraya, I. L. R. 1 Mad. 158, distinguished.
Kamayyaw. Leman . . I. L. R. 2 Mad. 37

4. Election of Municipal Com-
missioners—C/;;/7 Procedure Code, 1S82, s. 11
—Bengal Municipal Act (Beng. Act III of 78S4)
— Right to vote and stand as candidate at an elec-
tion— Suit for declaratory decree — Form of decree
— Partie^s to suit — Magistrate. .A.t an election of
Municipal Commissioners held under the Bengal
Municipal Act (Bengal Act III of 1884) <S', one of
the candidates, was declared to have been elected :
a poll was demanded and S was again declared by
the presiding officer to have been duly elected. An
objection was then taken by the defeated candidates
before the Magistrate of the district on the ground
that some of the voters gave more votes than there
■\rere vacancies, and also on the ground that S was
not qualified to be registered as a voter and to stand
as a candidate for election. The Magistrate set aside
the election on both grounds ; and S brought a suit
in the Civil Court for a declaration of his right to
vote and stand as a candidate, and for a declaration
that he was dulj' elected. Held, that the suit was
one of a civil nature, and under s. 11 of the Code of
Civil Procedure (Act XIV of 1882) such a suit wou^d
lie in the Civil Court. Held, also, that the Magistrate
should not have been made a defendant in the
suit, and that the plaintiff was not entitled to a
declaration that the election of the plaintiff was good
and valid ; but that the decree of the first Court
granting a declaration of plaintiff's right to vote
and stand as candidate was correct. Sabhapat
Singh v. Abdul Gaffur . I. L. R. 24 Calc. 107

See Abdub Rahim v. Municipal Board of Koil
I. L. R. 22 All. 143

5. ^ Acts done in accordance with |

88. 245 and 246, whether subject to the !

JURISDICTION or CIVIL COURT—

C07ltd.

15. MUNICIPAL BODIES— cow<(/.

jurisdiction of a Civil Conrt— Bengal Muni-
cipal Act {Beng. Act III of 1S84), ss. 224, 245, and
216 — Notice under s. 246 whether sufficient for tJie
purpose of the removal of huts in a histi, as well
as a pucca privy. Where a Municipality, having
proceeded in accordance with ss. 245 and 246 of
the Bengal Municipal Act, decide that certain
M'orks are necessary, that conclusion in the
absence of nmla fides or fraud or consider-
ations of that nature cannot be questioned
in a Civil Court. The action of the Munici-
pality, so far as a privy was concerned, was
held not to be ultra vires, although in the notice
issued in accordance with s. 246 of the Bengal Muni-
cipal Act, they directed the plaintiff to remove not
only certain huts, but also a pucca privy, inasmuch
as the Municipality had a right to require him to
remove the privy under s. 224 of the Act. Duke v.
Rameswar Malia I. L. R. 26 Calc. 811

3 C. W. N. 508

Suit to set aside illegal as-

sessment— Bengal Municipal Act {Beng. Act
111 of 1884), ss. 85, 93 113, 116. There is nothing
in the Bengal Municipal Act to prevent a rate-
payer from seeking in a Civil Court a decision
that the assessment made by a municipality is ultra
vires, and not binding upon him. So where the
plaintiff was the owner of a granary and a threshing
floor, which were both assessed as one holding at
R12 in the year 1893, which was the time at which
the last triennial assessment was made, and after-
v.ards in the year 1894 the municipality treated
the granary and threshing floor as separate holdings,
and they assessed the granary at R12 and assessed
threshing floor separately at 9 annas : -Hdd, that
this was not a case of enhancement of assessment,
but of fresh assessment, and so the suit was main-
tainable. Navadip Chandra Pal v Purna-
nandaSaha . . . . 3 C. W, N. 73

Municipal taxation— As-

sessment—Bewgrai Municipal Act {Bengal Act III
of 1884 as amended by Bengal Act IV of 1894),
ss. 85, cl. (a), 87, 114, 116 — Appeal against assess-
ment — Jurisdiction of Civil Court to set aside an
assessment — " Circumstances and property within
municipality " — Capability and circumstances of
the assessee— Specific Rdief Act {I of 1877), ss. 42, 45.
An assessment of tax under s. 85, cl. {a), of the
Bengal Municipal Act (III of 1884 as amended
by Bengal Act IV of 1894) made in consideration
of the assessee's •" circumstances and property "
(altogether or partly) outside the local limits of "the
munici|jality is ultra vires and illegal, and the Civil
Cjurt has jurisdiction to set aside such an assess-
ment. Manessur Das v. Collector and Municipal
Commissioners of Chupra, I. L. R. 1 Calc. 409,
distinguished. Navadip Chandra Pal v. Purna-
nand SaJm, 3 C. W. N. 73, referred to. Kame-

SHWAR PeRSHAD V. CHAIRMAN OF THE BhaBUA

Municipality . . I. L. R. 27 Gale. 849

( 6097 )

DIGEST OF CASES.

( 6098 )

JURISDICTION OF CIVIL COURT-

contd.

15. MUNICIPAL BODIES— concld.

Acquisition of land for

^(Videning a street — Bombay District 3Iunici-
pal Act (Bom. Act VI of 1S73), s. 24— Powers of a
Municipality — Civil Court's jurisdiction to iyiter-
fere. Where a District Municipality purchased
through Government a narrow strip of land at the
entrance of a j^rivate street for the purpose of \\ iden-
ing the street in order to facilitate the effective use
of tire-engines : — Held, that the acquisition of land
for such a purpose was within the powers of the
municipality, as it was conducive to the promotion
of j.ublic health, safety, and convenience ; and that
the Civil Court had no jurisdiction to restrain the
numicipality from exercising such powers. Shastei

llA^lCHANDRA V. AHMEDABAD MUNICIPALITY

I. L. R. 24 Bom. 600

9. House-tax — Municipal vtdiui-

tion — Civil CourVs power to raise such valuation.
A Civil Court has no power to revise the valuation
of houses made by a municipality for the purpose of
imposing a house-tax. Mokar v. Borsad Town-
iMuNiciPAiJTY . . I. L. R. 24 Bom. 607

See Municipality OF Wai v. Keishnaji Oanga-
dhar . . I. li. R. 23 Bom. 446

10. [Election, validity of— ^Juris-
diction— Election of Councillor, validity of — Appli-
cant's right to question election — Chief Judge of Small
Cause Court Juis sole jurisdiction to try suits relating
to election petitions — Jurisdiction of High Court —
Civil Procedure Code {Ad XIV of 1SS2), s. 11—
City of Bombay Municipid Act (Bom. Act III of
1888), s. 33. Under s. 33 the Chief Judge of the
Small Cause Court has jurisdiction to determine the
validity of a contests:! election. The High Court
has no jurisdiction to entertain such a suit. Where
a special tribunal, out of the ordinary course, is
appointed by an Act to determine questions as to
rights which are the creation of that Act, then,
except so far as otherwise expressly provided or
necessarily implied, that tribunal's jurisdiction to
determine those questions is exclusive. It is an
essential condition of those rights that they Should
be determined in the manner prescribed by the
Act, to which they owe their existence. In such
a case there is no ouster of the jurisdiction of the
ordinary Courts for they never had any. The
jurisdiction of the Courts can be excluded not only
by express words but also by implication, and tViere
certainly is enough in s. 33 of the Municipal Act for
this purpose. SernUe : If the High Court has
jurisdiction there might be a conflict between the
view of the High Court and the order of the
Chief Judge in which the order of the Chief Judge

j must by the express terms of the Act prevail.
] Bhaishankar v. The Municifai. Corporation of
I Bombay (1907) . . I. L. R^ 31 Bom. 604

; 16. OFFICES AND HONOURS, RIGHT TO.

1. Suit by hereditary purohit

for declaration of right to oflaciate and for

JURISDICTION OF CIVIL COURT—

contd.

16. OFFICES AND HONOURS, RIGHT TO—

damages for loss of feea-Cause of action.
rhe ancestor of the plaintiff w as appointed purohit
of the tov?n of P by Ooveruraent, and obtained,
prior to ISIO, a mirasi inam as the emolument of the
office. By an agreement made between the descend-
ants of the original purohit the families in the
tow n of P were divided between them, and that
of the defendants fell to the lot of the plaintiff.
The plaintiff sued for a declaration of his right to
officiate as the purohit of the defendants and or
damages for loss of fees caused by the defendants
employing another purohit. Held, that the plaint-
iff had no cause of action. Ramakristna v.
Ranga . . . I. L. R. 7 Mad. 424

2. Suit to obtain declaration

of right to perfom religious ceremony.

Quoire : Whether the Courts in India have any
jurisdiction to determine a question involving a
mere declaration of a right to perform religious
ceremonies. Namboory Seetapatty v. Kanoo

COLANOO PULLIA

7 W. R. p. C. 7 : 3 Moo. I. A. 359

3. Right of suit— C/iv7 Procdure

Code, s. 11 — Hereditary right to an office — Declu-
rcdory decree — Jurisdiction — Emolument. A suit
for the establishment of a right to the hereditary
title of musicians to a satra will lie under s. 11 of the
Code of Civil Procedure, notwithstanding that the
right sought to be established is one which
brings ia no profit to those claiming it. :Mamat
Ram Bayan v. Bapu Ram Atai Bura Bhakat

I. L. R. 15 Calc. 159

4. Suit for an office to which
no fixed fees are attached — Cn-d Proadure
Code, 18S2, s. 11— Bom. Peg. II of 1827, s. 21
— Its application to suits between Mahomeduns —
Caste question. Under s. 11 of the Code of Civil
Procedure (Act XIV of 1882), a suit for an ofKce will
lie, even though the office be a religious one, to
which no fixed'fees are attached. S. 21 of Regula-
tion II of 1877 has no application to suits between
Mahomedans. A dispute as to the right to an office,
such as the office of khatib (o: preacher) is said to be
among Mahomedans, is not a caste question within
the meaning of the term as used in the section.
HashimSaheb valad Ahmed Saheb v. Huseinsha
VALAD Kakimsha Fakik . I. L. R. 13 Bom, 429

5. Suit to establish rights of

persons managing pagodas— ^'(u( for damages
for wiihdritwul of rdigiou--^ oh-^crvances. The Civil
Courts will recognize and enforce the rights of
persons holding offices connectetl with the manage-
ment and regulation of pagodas ; and if the holder of
such an office were entitled to remuneration for his
services in the way of salary or ot herwise, he would
have a civil right entitling him to maintain a suit,
if that remuneration were improperly withheld. A
Hindu priest cannot sue in respect of the withhold-

( 6099 )

DIGEST OF CASES.

( 6100 )

JUBISDICTION OF CIVIL COURT— ,

covid. i

16. OFFICES AND HONOURS, RIGHT TO— |
contd.
ing of religious observances due to his sacred rank,
but unconnected with anj' special office held by him,
although the non-performance of such observances
may have caused him some ascertainable pecuniary
loss. Stkiman Sada Gopa v. Kbistna Tattacha-
KiYAB 1 Mad. 301

e. Suit to establish right to

honours of oflQce in temple, and damages for
invasion of right. A suit to establish tiu- right
of the plaintiff to certain honours appertaining to an
office in the temple, and to recover damages for an
Invasion of the right, is one which it is competent
to the Civil Courts to entertain. Akchakam Seini-

VASA DiKSHATULU V. UdAYAGIBY AnA>"THA ChARLU

4 Mad. 349

7. Suit for declaration of right

to be priest and collect fees. In a suit for
'• Huk Purohitee'':— ii/fW, that each " jujman" has
a right to select his own priest, and no suit to en-
force a right to be priest and collect dues as such
Mould lie in the Civil Coiu-t. Beharee Lal v.
Baboo . . . . 2 Agra 80

8. Suit for a declaration of

plaintiff's right to ofi&ciate as priest and
receive offerings. A suit will lie in a Civil Court
for a declaration oi the plaintiff's right to officiate,
in alternate years, as priest in a temple and receive
the offerings to the idol. Limba bik Krishna v.
Rama bin Pimplu . I. L. B. 13 Bom. 548

0. Bight to an office in a

temple — Civil Procedure Code, s. 11. Plaintiffs
sued for an injunction to prevent defendant from
interfering with their right to present to certain
persons at a certain festival in a certain temple, a
crown and water. The lower Courts found that
plaintiffs possessed the right claimed and granted
the injunction. Held, that the suit was cognizable
by a Civil Court under s. 11 of the Code of Civil
Procedure, and that tlie injunction was properly
iiranted. Srinivasa v. Tiruvengada

I. L. B. 11 Mad. 450

10. Suit for declaration of right

to eldership among patils — Act XI of lii43.
In a ^uit brought for a declaration of right to the
tadiiki or eldership in a family of patils with a view-
to prove title to the patalki or office of patil : — Held,
that a Civil Court had no right to entertain such a
claim in order to influence the controlling revenue
officer, who had the power in certain cases to nomi-
nate, from among the sharers of a family of heredi-
tarv officers, a representatives to dischaiL'i' tlie duties
f.f the bereditarv office. Abaji bin SANKunJi i.
NiLOJi BIN Baloji 2 Bom. 362 : 2nd. Ed. 342

11. _ Suit for declaration of right

to offices of patli — JUght to ^hare in manufjenient
of u-alan. \\here the plaintiff sued to be declareil
entitled to the office of niulki patil in the village of
Kotavery, as being the senior of his family, and al-

JUBISDICTION OF CIVIL COUBT—

contd.

16. OFFICES AND HONOURS, RIGHT TO-^

contd.
leged that the defendant, the actual incumbent of
that office, had no right to share in the management
of the watan, and had, in fact, until 1866, upon the
death of the father of the plaintiff, never done so i
Held, that the Ci\al Courts had jurisdiction to
entertain the claim of the plaintiff. Abaji bin
Sankroji v. Niloji bin Baloji, 2 Bom. 362 : 2nd Ed.
342, distinguished. Vithu bin IManku i. Aintkita
BIN JoTi " . . .7 Bom. A. C. 72

12.

Act XI of 1S43.

Where a plaintiff sued for a declaration of his eli-
gibility to the office of patil, if elected under the
provisions of Act XI of 1843, he having been obliged
to sue to establish liis eligibility in consequence of
the defendants' persistent denial of the plaintiff's
claim to such eligibility, whereby the revenue
authorities were induced to refuse to recognize it : —
Held, that the suit was recognizable by a Civil Court.
Held, also, that such a suit wo\ild lie even when the
object of it was only to enable the plaintiff to
influence the revenue authorities by showing that
the Civil Court had declared tiim eligible for office
as patil. Abaji Sankroji v. Niloji Baloji, 2 Bom.
342, and Yesaji Apaji v. Yesaji Mlialoji, 8 Bom.
A. C. 35, distinguished. Ningangavda Patil v.
Satyangavda Patil ... 11 Bom. 232

13.

Suit to establish right to

officiate in proportion to shares held.

\Vhere the plaintiff hatl tw o shares and the defend-
ant one in a patillci watan, and thu plaintiff brought
a suit to establish his right to officiate twice as often
as the defendant : Quoerc — Whether the Civil Court
had jurisdiction to entertain tiie suit. Bhavani
Sadashiv v. Bhavani IManaji . 12 Bom. 232

14. Suit for declaration of

right to officiate as sole representative of
a branch of vatandar family — Bombay Heredi-
tary Offices Act (III of 1<S74). From the date of
the coming into force of the Bombay Hereditary
Offices Act (III of 1874), it is not competent to
the Civil Court to entertaiii a suit for a declaration
of right to officiate as the sole representative of a
branch of a vatandar family, the Act constituting
the Collector a Judge for this and other purposes
of the Act. Khando Narayan Ktjlkarni v. Apaii
Sadasiv Ktjlkarni . I. L. B. 2 Bom. 370

15. Suit for declaration of right

to officiate as vatandar — Hombmj Heredi-
tary Offices Act [III of hS74). Since Bombay Act
III of 1874 came into force, no suit will lie in a Civil
("ourt for a declaration that a person is eligible to
officiate as a hereditary officer faUiug within the
scope of that Act. Since that Act became law, none
but representative vatandars or their deputies or
substitutes can officiate ; and the duty of determin-
ing what persons shall be recognized as representa-
tive vatandars is vested in the Collector, whose
proceeding is a judicial proceeding. CniNTO Aba-H
Kulkarni v. Laksmibai I. L^ B. 2 Bom. Q"^

( 6101 )

DIGEST OF CASES.

( 6102 )

JUEISDICTION OF CIVIL COURT—

^ contd.

10. OFFICES AND HONOURS, RIGHT TO—

C07ltcl.

18. ■ Bombay Heredi-
tary Offices Act (III of 1874), s. 18—Suitjby village \
inahars to recover aya — Declaratory suit. S. 18 [
as much as s. 25 of the Bombay Hereditary Offices {
Act (III of 1874) excludes by direct implication ;
any right on the part of the Civil Courts to declare !
that persons are eligible to serve as hereditary j
officers under the Act. Khand Narayan v. Apaji i
Sadashiv, I. L. B. 2 Bom. 370, and Chinto Abaji \
V. Lakshmihai, I. L. R. 2 Bom. 375, followed.
Ramchandra Dahholkar v. Anant Sat Shenvi. I. L. j
R. 8 Bom. 25, distinguished. The plaintiffs sued,
as vatandar mahars of certain villages, to establish [
their right to receive the aya attached to their office,
as against defendants, who were the vatandar
mangs of the same villages, and who claimed the
right to receive the aya equally with the plaintiffs, i
Held, that the suit was not cognizable by a Civil
Court. Paksha v. Lagmya Shan I

I. Ii. B. 13 Bom. 83

17. . Bombay Heredi- <

tary Offices Act (III of 1874), s. 56 — Registration of I
vatandar. A decree of the District Court at Shola-
pore made in 1803 declared the plaintiff to be a
hereditary deputy vatandar of a certain deshpandi ,
vatan, vested in the defendants as hereditary |
vatandar, and as such deputy entitled to receive a 1
certain sum annually out of the income of the vatan. [
The plaintiff received moneys from time to time j
under his decree ; he Was not, however, subse- j
quently to the decree registered and treated as a |
representative vatandar under Bombay Act III of :
1874, s. 50. Held, that, as plaintiff was not regis- j
tered and ti-eated as " a representative vatandar "
under Bombay Act III of 1874, although the decree i
of 1803 entitled him to be so registered, a Civil i
Court had no jurisdiction to register him as such a
representative vatandar, or to direct that he should
be so registered by the Collector, and that any
application for such registration should be made to [
the Collector. Gopal Hanmant v. Sakharam
GoviND . . . I. L. B. 4 Bom. 254

JUEISDICTION

contd.

OF CIVIL COURT—

10. OFFICES a>;d honours, right to—

corUd.

firmed in the appointment by the Collector. The
plaintiff therefore sued the defendants to recover
KlOO as damages for breach of the agreement of
1869. Held, that the agreement could not be en-
forced by a civil suit, as it was opposed to the
policy of s. 40 of Bombay Act III of 1874, which
contemplates a free election of an officiator by the
whole body of registered representative vatandars
to whom the Collector issues his notice — an election
unfettered by any promises made beforehand by
any of the sharers. Held, also, that a suit in re-
spect of any injury caused by exclusion from office
or service is barred by the second paragraph of cl.
(a) of s. 4 of Bombay Act X of 1876. Having regard
to the wording of the several clauses of s. 4 the
bar therein provided is not limited to suits against
Government. Naro PAKDrEANG r. Mabadev
Ptjeshotaai , I. L. B. 12 Bom. 614

19.

Suit for lands

attached to hereditary office — 3Iad. Reg. VI of 1831,
s. 3. A suit in the Civil Courts for " maniam "
lands attached to the hereditary office of village
carpenter is barred by the operation of s. 3 of Regu-
lation VI of 1831. Palamalai Padayachi v. Shax-
MUGA Attsari . I. L. B. 17 Mad. 302

PlCHHUVAYYAN V. ViLAKKUDAYAX ASARI

I. L. B. 21 Mad. 134

20.

Suit far 'partition

18.

Suit in respect

of an injury caused by exclusion from an hereditary
office — Bombay Hereditary Offices Act (III of 1874),
s. 40 — Election of an cfficiator — Free election — ;
Agreement in restraint of free election — Bornbay Act
X of 1867, s. 4 — Its application to suits betiveen |
private persons. The plaintiff and his co-sharers in '<
a kulkarni vatan entered into an agreement in 1809 j
for the performance of the duties of the vatan by
the several sharers in turn. The agreement pro-
vided that, if any of the sharers prevented the !
nomination of a sharer to officiate in his turn, he j
should pay ElOO as damages to the person thus
excluded from office. The plaintiff alleged that in '
1883 it was his turn to officiate, that the defendants, I
instead of electing him in accordance with the agree-
ment, nominated another person, who was con- |

and declaration of right to a specific share in a kul-
karni vatan and to officiate — Hereditary cffice —
Vatandar' s Act (Bom. Act III of 1814), s. 67 —
Collector, duty and functions of. In a suit for parti-
tion of a kulkarni vatan for a declaration that the
plaintiffs were entitled to officiate as kulkarnis and
for a third share in the moiety of the vatan belong-
ing to the parties it was contended that under the
Va,tandar's Act (Bombay Act III of 1874) the suit
was not maintainable in the Civil Court. Held,
that the Vatandar's Act docs not preclude the Civil
Court from declaring the plaintiff's right to the
status of vatandars when the share defined is in
respect of a share in the v.<itan belonging to the
branch of the parties, and the declaration does not
interfere « ith the rights of the Collector in any way
as given by the Act. In preparing the register, the
Collector's duty, as determined by s. 07 of the Act,
is confined to specifying the names of the heads of
families and the proportionate part, possessed by
each head, and is in no way concerned with the
rights of the members of a part'cular branch inter
se. GOVIND SiTARAJI V. Bapuji Mahadeo

I. L. B. 18 Bom. 516

21. Bight to hereditary office

of guru — Civil Procedure Code (18S2), s. 11.
The plaintiff as Anagundi Raja guru claimed
to be entitled and now sued for a declaration of his
title to the hereditary office of priest of Samaya-
charam. The defendants claimed the office and

( 0103 )

DIGEST OF CASES.

( 6104 )

JURISDICTION OF CIVIL COURT—

contd.

16. OFFICES AND HONOURS, RIGHT TO—
contd.

had collected voluntary contributions in the charac-
ter of the holders of such office. The office was
not connected with any particular temple ; no
specific pecuniary benefit was attached to it, and
the alleged duties of the office were to exercise
spiritual and moral supervision over persons wear-
ing a certain caste mark in a certain tract of country.
Held, that the suit was not cognizable by a Civil
Court. Tholappala Charltj i- Venkata Charltj
I. L. R. 19 Mad. 62

22. Suit in which the right to

an office and to its emoluments is in dis-
pute. A suit in which the only question for
decision was whether or not the plaintiff was the
aya of a certain muth, and entitled as such to
receive certain fees on the occasion of marriages, is
a. suit of a civil nature in which the right to an
office and thereby to certain fees is in contest.
Such a suit is cognizable by a Civil Court. Its
decision in no way involves any interference in a
caste question. Gursangaya v. Tajiaxa

I. L. R. 16 Bom. 281

23. Civil Procedure

Code, 1882, s. 11 — Sdit for right to property and for
office or emolument. The plaintiffs were some of
the bhakats or members of a satra or rehgious
fraternity, and they claimed the right to enter the
kirtanghar or prayer hall, and perform their prayers
and other rites therein. They alleged in the plaint
that the management of the affairs of the satra,
■" including the distribution of honorarium and
offerings and the appointment and dismissal of the
satria," or head of the fraternity, was vested in the
samuha, or entire body of bhakats, and that they
and their forefathers had been from generation to
generation in receipt of the honorarium and offer-
ings, and had been performing the rites and cere-
monies according to the custom of the satra until
they had been obstructed and interfered with by !
the defendants in such performance and had j
been expelled from the kirtanghar. The prayer of
the plaint was that the plaintiffs' right to enter |
the kirtanghar to perform the saici rites and !
ceremonies and to receive their share of the offerings |
might be established ; that the kirtanghar i
from which they had been dispossessed might [
be made over to them for the purpose of |
such performance, and that a prohibitory injunc- j
tion might be granted enjoining the defend- j
ants not to obstruct them in such performance, i
'J'he defendants, who were the satria and the other
members of the fraternity forming the majority of |
the entire body of bhakats, denied the rights claim- i
ed by the plaintiffs as bhakats, and stated that the I
satra was governed by the satria and a select body
of bhakats, that the plaintiff No. 1 had received |
mantra or spiritual initiation from one Saruram I
contrary to the rules of the fraternity, and had been
convicted, moreover, of a criminal offence, and a [

JURISDICTION or CIVIL COURT—

cojiid.

16. OFFICES AND HONOURS, RIGHT TO—
contd.

fine of RlOO had accordingly been imposed on him
and his partizans by the governing body of the
satra, whose orders they had disobeyed by refusing
to pay the fine and they had therefore been ex-
cluded from entering the kirtanghar ; and the
defendants contended that the Civil Court had no
jurisdiction in the matter, and that the suit was
therefore not maintainable. The lower Courts held
that the Civil Court could entertain the suit, and
they made decrees practically ordering the admis-
sion of the plaintiffs to the kirtanghar on their com -
plying with the order imposing the fine. Held, that,
having regard to the prayer for possession of the
kirtanghar, and to the allegations made in the
plaint about the position and privileges of the bha-
kats and their rights to honorarium and offerings,
and to the defendants' denial of those rights and
of the plaintiff's right to enter the kirtanghar, the
suit must be regarded as one in which right to
property and to an office, within the meaning of.
the explanation to s. 11 of the Civil Procedure Code,
is contested, and therefore, notwithstanding that
the honorarium and offerings were of trifling and
merely nominal value, one of a civil nature and
cognizable by the Civil Court. Jagannath Churn
V. Akali Dassia . . I. L. R. 21 Cale. 463

24. Suit for share in emolu-
ments of vatan — Bombai/ Hereditari/ Offices Act
(III of 1874)— Act X of 1876. Neither Bombay
Act III of 1874 nor Act X of 1876 contains any pro-
vision excluding the jurisdiction of Civil Courts in a
suit brought to establish a share in the emoluments
of a vatan which has ceased to be a service vatan.
MoHEYODiN V. Chhotibibi I. L. R. 5 Bom. 5"/ 8

25.

Suit for damages for

wrongly continuing in o&ce— Refumlio give
up Office — Hereditary Offices Act [Bom. Act X of
1876), s. 4, cl. [a), para. 2. Under Bombay Act III
of 1874, the Civil Courts cannot entertain a suit
which seeks to recover damages against the defend-
ant for wrongly continuing in office as patil, inste ad
of resigning in favour of the plaintiff, in obedience
to a family custom which entitled the plaintiff to
serve as patil every fourth year, whereby the plaint-
iff lost the emoluments of office. Quasre : Whether
the claims excluded by Act X of 1876 as amended
by Act XVI of 1877, s. 1, are hmited to claims
against Government. Vasudev Vithal Samant
V. Ramchandra Samant I. L. R. 6 Bom. 129

Ganpatrav v. Rang ray

I. L. R. 6 Bom, 133 note

Gavdapa v. Shibasangvada

I. L. R. 6 Bom. 133 note

26. Suit to rank as vatandar

—Bombay Hereditary Offices Act [III of 1S74).
Under the Vatandars Act (Bombay Act III of 1874),
as under the law antecedent to it, the Civil Court
has jurisdiction to entertain a suit to be declared a

( 6105 )

DIGEST OF CASES.

{ 0106 )

jrmiSDICTION OF CIVIL COURT—

contd-

16. OFFICES AND HONOURS, RIGHT TO—

Contd.

vatandar. This jurisdiction rests on the simple
denial of the plaintifi's right by the defendant
irrespective of the pecuniary loss or other injury
caused or Hkely to arise to the plaintiff by its in-
fraction. When the list of vatandars is either un-
disputed or settled by the decree of the Civil Court,
the Collector derivesjurisdiction under the Act to
determine which of them shall be their represent-
ative. Ramcha>-dra Dabhalkar v. Axaxt Sat
Shenvi . . I. L. E. 8 Bom. 25

27. Suit for a share and entry

of name in place of deceased vatandar—
Bomhnii Hereditary Offices Act {III of 1874), f. 35—
Heir— Adopted son. S. 35 of the Bombay Heredi-
tary Offices Act (III of 1874) only contemplates
the intervention of a Civil Court for the purpose of
establishing the right of the claimant to be regarded
as the adopted son of the deceased registered
vatandar. When the claimant's suit is not limited
to that object, but asks for a declaration of his
share in the vatan and of his title to have his name
entered in the vatan register, the suit is beyond the
jurisdiction of the Civil Court. Balkrishna Chim-
xaji v. Balaji . . I. L. R. 9 Bom. 25

28. Suit to recover lands en-
franchised— Hereditari/ Office — Enf ranch ised inrtm
—Mad. Reg. VI of 1831— Mad. Act IV of 1866.
Where a claim to an hereditary village office, falhng
under Regulation VI of 1831, has been made and
rejected by a Collector prior to the abolition of the
office and the enfranchisement of the lands which
formed the emoluments of the office, a Civil Court
cannot take cognizance of a suit by the claimant to
recover the lands from the incumbent to whom the
lands have been granted by the Inam Commissioner.
Kamatchi Ammal v. Agiland Ammal

I. Ii. R. 6 Mad. 334

29. Suit for a declaration as

to land alleged to be nattamai maniyams
! —Mad. Befj. VI of 1S31, s. 3— Jurisdiction of
I Revenue Courts — Res judicata — Civil Procedure
Code, 1S82, s. 13. In a suit to establish plaintiff's
I title to certain land alleged by the defendants, who
j were the Secretary of State for India in Council
I and the nattamaigar of a certain village, to be mani-
: yam land attached to the office of the second defend-
! ant, and previously held to be such by a Revenue
} Court in a suit under Regulation VI of 1831 : — Held,
1 that it was not a suit which the Civil Court was pre-
I eluded from entertaining by Regulation VI of 1831,
' nor was the decision of the Revenue Court one of a
1 Court competent to decide the matter. The Civil
I Court therefore was not precluded either by Regu-
lation VI of 1831, s. 3, or by the decision of the
I Revenue Court from granting the declaration
prayed for. Ravutha Koundax v. xMuthu
Koundan . . . I. Ii. R. 13 Mad. 41

30. . Suit for declaration of

right to represent family — Vatandar family —

JURISDICTION OF CIVIL COURT—

contd.

16. OFFICES AND HONOURS, RIGHT TO—
contd.

Hereditary Offices Act {Bombay Act III of 1874),
s. 25. The plaintiff sued for a declaration that the
branch of the Gavda family which he represented
was elder than that represented by one of the defend-
ants. The object which he desired to obtain by
a declaration in that form was to influence the Col-
lector in determining whether he should be recog-
nized as the representative vatandar in respect of
the four annas share which the Gavda family
possessed in a patelki vatan. Held, that the Ci\al
Court had no jurisdiction to entertain the suit,
since the declaration sought, if made, would in effect
be a declaration of plaintiff's status as represent-
ative vatandar. This, however, equally with the
duty of ascertaining the custom of the vatan as to
service, was a duty which by s. 25 of the Bombay
Hereditary Offices Act (Bombay Act HI of 1874)
was imposed on the Collector, and not upon the
Civil Court. Raoji v. Genu

I. L. E. 22 Bom. 344

31.

Suit to contest resum-otion

of charitable inam — Mad. Reg. VII of 1817 —
Act XX of 1863. A suit by the grantees to contest
the right of the Government to resume an inam
granted for the support of a chattrani and for feed-
ing Brahmins is cognizable by the Civil Courts.

SUBRAMANYA V. SECRETARY OF StATE FOR IXDIA

I. L. R. 6 Mad. 361
32. Suit for lands as emolu-

ment of ofBce — Madras Hereditary Village Offices
Act {III of 189.5), ss. 13, 21— S. 21 applies to cases
where defendant denies that lands claimed by
plaintiffs are emoluments. The jurisdiction of Civil
Courts is excluded by s. 21 of the Madras Heredi-
tary Village Offices Act in cases in which the
plaintiff sues for lands as emoluments of his office
and the defendant resists the claim on the ground
that the land is not the emolument of the office.
Such a suit is not the less a suit for emoluments
within the meaning of the section because the
defendant resists the claim on such ground.
Ravathii Koiinden v. Muthu Kounden, I. L. R.
13 Mad. 41, distinguished. Kesiram Narasi-
MHULU v. Narasimhulu PATXAIOr (1906)

L L. R. 30 Mad. 126

33. ^ Suit for honours— J/o»f/n<or^

injunction when not asked not to be granted — Suit for
honours when sustainable — Decree 7niust declare the
honour to which plaintiff is entitled. Civil Courts
have jurisdiction to entertain a suit for honours,
if they are claimed as attached inseparably to an
office, as part of its emoluments and not simply
accorded to its holder as marks of respect which
might be extended to any person to whom the same
decree of respect is due. In declaring that the
plaintiff is entitled to honours, the decree must
declare the specific honours to which the plaintiff
is entitled. A general declaration that the plaintiff
is entitled to the honours appropriate to the office

( 6107 )

DIGEST OF CASES.

( 6108 )

JURISDICTION OF CIVIL COURT— j JURISDICTION" OF CIVIL COURT—

contd. i <>ontd-

16. OFFICES AND HONOURS, RIGHT TO—

concld.

'wiU not suffice, but the Court must, to protect the
plaintiff in the enjoyment of the office, declare
what is the honour to which he is entitled. The
declaration need not set out honours, the right to
which has not been questioned. The first thirtham
is not itself an^office, but an honour forming the
emoluments of an office. A mandatory injunction
ought not to be granted when it is not asked in
the plaint. Sri Rungachariab v. Rungasami
Bhattachak (1908) . I. L. R. 32 Mad. 291

17. PARTNERSHIP.

1. Suit for accounts and share

of profits of partnership. A suit between co-
partners for a settlement of accounts and share of
the profits is maintainable in the Civil Courts of
India, which are Courts both of law and equity.
Ram Naeain v. Heera Lall . 1 Agra 226

2. Suit for dissolution of part-
nership— Winding-^ip — Contract Act {IX of 1872),
s. 265— Civil Procedure Code, ss. 11, 213, 215, Sch.
IV, form No. 113. The ordinary Civil Courts have
jurisdiction to try a suit for dissolution of a part-
nership, their jurisdiction to try such suits not
being ousted by s. 265 of the Contract Act, 1872 .
Ramjiwan Mal v. Chand Mal

I. L. R. 7 All. 227

18. PENALTIES.
Imposing penalty without

SiUthority— Interference icith rights of parties by
way of penalty. Civil Courts have no power to in-
terfere with the vested rights of parties merely by
way of penalty, unless they are authorized to do so
by positive legislative enactment. Ram Sahoy
Singh v. Koldeep Singh . 15 W. R. 80

See Ramnidhy Koondoo v. Ajoodhyaram
Khan .... 11 B. L. R. Ap. 37

19. POLITICAL OFFICERS.

1. Act done by political oflScer

— 'Interference with private righh. An act done by
a political officer intei-fering with the private rights
of parties can be questioned in the Civil Courts.

MtTKOOND NaEAIN DeO V. JOY COOMAREE DeBIA

1 W. R. 16

2. Suit for damages against

Political Agent at Court of Modhool— 1'4
d; 2-5 Vict; c. 104, s. '.'—Letters Patent, cl. 13. In
a suit brought in the High Court at Bombay by the
Hindu inhabitants of Mahalingpore, a village in the
territories of the Chief of Modhool, against the Poli-
tical Agent at the Court of Modhool, for damages
for injury done to them by certain orders made by
him in liis executive capacity : — Held, even assum-
ing there was a cause of action, that the High Court

19. POLITICAL OFFICERS— conc?i.

had no jurisdiction to try it either under s. 9, 24
& 25 Vict., c. 104, as a Court of ordinary original
civil jurisdiction, or in its extraordinary civil
jurisdiction under s. 13 of the Letters Patent.
Inhabitants of Mahalingpore v. Anderson

7 B. L. R. 452 note

20. POTTAHS.

1. Suit to compel grant of pot-

tah — Landlord and tenant — Maurasidars, right
of — Relinquishment of tenure — Grant to maurasidars.
Where the maurasidars of a village have relin-
quished their pottah for lands in the village, and
thereby given occasion to the revenue authorities
to offer pottahs to others, a Civil Coirrt cannot
compel the revenue authorities to grant a pottah to
the maurasidars in preference to strangers, although
the maurasidars may have a preferential claim
under the Darkhast rules. Sctbbaraya Mudali v.
Collector of Chingleput.I, L. R. 6 Mad. 303-

2. ■ Suit for declaration of ex-

elusive possession under pottah from Gov-
ernment— Allegation of wrong insertion of name
in pottah. The plaintiff sued to have it declared
that he was entitled to exclusive possession of cer-
tain land held under a pottah from the Government,
alleging that the name of the defendant had been
improperly inserted in such pottah. Held, that the
suit was properly brought in the Civil Court. PuR-
NAJiAL Deka Kohta V. Mayara:m Deka Kohta
10 C. L. R. 201

Suit to cancel pottah — Cause

of action. Plaintiff sued in a Civil Court to cancel
a pottah which he alleged was incorrect and fraud-
ulently antedated by the defendant with a view
to prevent plaintiff from taking steps to cancel it in
a Revenue Court : a copy of the pottah had been
affixed to jflaintiff's house. Held, that the plaintiff
had no cause of action cognizable by a Civil
Court. NuRDiN v. Alavudin

I. L. R. 12 Mad. 134

Suit in Civil Court ^o en-

force exchange of pottah and muchalka—

Madras Bent Recovery Act (VIII of 1865)~Decla-
ratory decree — Civil Procedure Code, s. 53 — Amend-
ment of plaint. A suit in the Court of a District
Munsif to enforce acceptance of a pottah and exe-
cution of a muchalka by defendant in respect of a
holding in a village to which plaintiff claimed title
was dismissed as not being maintainable. Held,
that the suit should not have been dismissed, but
the plaint should have been amended by the addi-
tion of a prayer for a declaration of the plaintiff's
title ; and that the Court then would have had
jurisdiction to grant by way of consequential relief
the relief originally so'usht." Narasijijia v. Saey-
narayana . .^ I. L. R. 12 Mad. 481

5. Suit to enforce acceptance

of im.proper pottah — Madras Rent Recovery

( 6109 )

DIGEST OF CASES.

( 6110 )

JUHISDICTION OF CIVIL COUBT—

contd.

20. TOTTAHS— contd.

Act (Mad. Act VIII of ISG'^), ss. 3, 7, 87~lJecree
for rent. • A landlord sued his tenants in the Court
of a District Munsif to enforce acceptance of pottahs
and the execution of muehalkas by them, and to
recover arrears of rent. The suits were filed more
than thirty days after tender of the pottahs which
were found to contain certain improper sitpulations.
Held, that the Civil Court had jurisdiction to enter-
tain the suit and to modify the pottahs where they
were found to be improper and to enforce the exe-
cution of corresponding muehalkas. Held, also,
that the claim for rent should have been disallowed
on the ground that the pottahs as tendered were im-
proper pottahs. Narasimw.a v. Sarynarayana,
I. L. R. 12 Mad. 4S1, distinguished. " Easwara
Doss V. PuNGAV.\NACHAEr I. L. R. 13 Mad. 361

6. ^ Suit to enforce exchange of

pottali and jn\xch.a.lk.a,— Madras Rent Recovery
Act (Mad. Act VIII of ]86o), ss. 3, 7, 87— Amend-
ment of pottah. Held, by Collins, C.J., Mtjtttj-
SAMi AYYARand Parker, JJ. (Shephard, J.,
dissenting), that an oridnary Civil Court has juris-
diction to entertain a suit to enforce acceptance of a
pottah and execution of a muchalka. Held, further,
that, if the pottah which has been tendered is
found not to be a proper one, such a Court cannot
amend it and direct the tenant to execute a mu-
chalka corresponding M'ith it as amended, but can
in a suit properly framed for that purpose, pass a
decree declaring what is a proper pottah.
P>AMAYYAR V. Vedachalla I, L. R. 14 Mad. 441

7. Suit for enforcement of

pottah and other relief— J/arfra.s Rent Re-
cnrrry Act (Mad. Act VIII of lS6->), s. 10— De-
rliiration as to enforceable stipulations. In a suit
! nought in the Court of a District Munsif by a
?.amindar and his lessee against a cultivating tenant
It) enforce the exchange of pottah and muchalka
;indfor further and other relief: — Held, following
Rnmayyar v. Vedachella, I. L. R. 14 Mad. 441,
that the Civil Court had jurisdiction, and that a
decree should be passed containing a declaration as
to the terms which the pottah should contain.
Satappa Pillai v. Raman Chetti

I. L. R. 17 Mad. 1

8. Pottah granted by Govern-
ment— Application to Government for waste land
■ — Irregidir publication of application — Effect of
ion-compliance with darkkast rules on title. The
plaintiff, having obtained an assignment from
( lovernment of waste land, was obstructed by the
< Icf endants in liis attempt to enter into occupation,
tuid he sued for a declaration of his title and for
possession. It appeared that his application for
the land had not been duly published, and certain
other formalities had not been observed, as pro-
vided by the darkhast rules, but the land had been
assigned to him and a pottah granted by Govern-
ment. Held, that the plaintiff's title was not in-
validated by reason of the non-compliance with
the darkhast rules, and the Civil Court had no

JURISDICTION OF CIVIL COURT—

contd.

20. POTTAHS— co«c/rf.

jurisdiction to set aside the plaintiff's pottah on
that ground. Perl\rovai.tt Repdi v. PiOyal0
Reddi . . I. L. R. 18 Mad. 434

21. PRIVACY, INVASION OF.

1. — - Suit for injury caused by

invasion of privacy. The doctrine that the in-
jury caused by invasion of one's privacj- is a senti-
mental grievance, rather than a substantial injury
for which relief can be claimed at law, has not
received judicial sanction from the Indian tribunals,
and is opposed to the feelings and unsuited to the
habit of the natives of the countrj'. Ra.m Buksh r.
Ram Sookh .... 3 Agra 253
2. Invasion of privacy by

opening windo'ws. The invasion of privacy by
opening windows is not treated by the law as a
wrong for which any remedy is given. Komathi

V. GURTJNADA PiLLAI . . 3 Mad. 141

Easement — Suit

for injunction — Right of suit. The invasion of pri-
vacy by opening windows is not a wrong for which
an action will lie. Komathi v. Gurunada Pillai, 3
Mad. 141, followed. Aztjf v. Ameeruliei

1. L. R. 18 Mad. 163
4. Suit to have windows closed

— Invasion of privacy of icomen. The defendants
having opened certain windows and erected a
verandah in their house which commanded a view
of the plaintiff's female a^^artments, the plaintiffs
brought a suit against them to have the windows
closed and the verandah removed. Held, that no
such suit was maintainable. Mahomed Abdub
Rahim v. Birjtt Sahtt

5 B. L. R. 676 : 14 W. R. 103
5. Suit to have windows re-
moved— Invasion of privacy of women. In a suit
to compel the defendant to remove certain windows
in his house which overlooked the apartments occu-
pied by the females of the plaintiff's household : —
Held, that the plaintiff was not entitled to have them
closed. Ramlal v. Mahesh Baboo

5 B. L. R. 677 note

Kalee Pershad Shaha v. Ram Pershad Sraha
18 W. R. 14

6. Suit to have doors closed —

Invasion of privacy of women. A suit to close doors
recently opened in the house of a neighbour on the
ground that such doors overlook the zenana or
female apartments of the plaintiff, does not lie.
GoLAM Ali v. JIahomed Zahur Alttm

6 B. L. R. Ap. 76

See Gibbon v. Abdur Rahman Khan

3 B. L. R. A. C. 411
7. Raising house to get ex-
tended range of vision — Invasion of privacy.
Where a house-owner in a street changed the ar-
rangement or construction of the upper part of his

( 6111 )

DIGEST OF CASES.

( 6112 )

JURISDICTION OF CIVIL COURT—

contd.

21. PRIVACY, INVASION OY—concld.

house, so that the alteration gave him a wider range
of vision than before, but in a manner otherwise
consistent with his rights of enjoyment, no legal
right of suit is given to a neighbour living on the
other side of the road complaining of loss of privacy-
J00GT7L Lal v. Jasoda Bibee . 3 W. "W. 3il

Opening new doors or win-

dows— Udoge of Gujeraf — Overlooking neighbour's
Jiou.^c. Held, that, in accordance with the
usage of Gujerat, an invasion of privacy is an action-
able wrong, and that a man may not open new
doors or windows in his house, or make any new
apertures, or enlarge old ones, in a way which will
enable him to overlook those portions of his neigh-
bour's premises which are ordinarily secluded from
observation, and so intrude upon his privacy. The
doctrine of English law, which has been followed
by the High Court of Madras, is different. Mani
S'hankak Hargovan v. Trikam Narsi

5 Bom. A. C. 42

9. Usage of Guje-
rat. When in Gujerat a householder's privacy is in-
vaded by the opening of new doors and windows in
his neighbours house, his right of action is not
altered by the fact that a public road runs between
the dominant and the servient tenements. Mani
Shankar Harogovan v. Trikam Narsi, 5 Bom. A. C.
42, followed. Kuvarji Premchand v. Bai .Javer
6 Bom. A. C. 143

10. Right to liave window

opening on to neighbouring lnouse— Right
of 'privacy. Where the plaintiff opened a new
window in his house at Dharwar, which rendered
the defendant's house less private than before : —
Held, that the plaintiff was not guilty of any torti-
ous act, and should not be debarred from improving
his own house, though the effect might be, to some
extent, prejudicial to his neighbour. To establish
such an exceptional privilege, as is customary in
this respect in the towns of Gujerat, evidence of
the most satisfactory character is necessary.
Srinivas Udpirav v. Pveid . 9 Bom. 266

11. • View of open courtyard.

■^Miere a window opened by the defendant com-
manded a view, not of the plaintiff's private
apartments, but of an open courtyard outside
his house, it was held that there had been no
invasion of the plaintiff's privacy which would
entitle him to have the window closed, according to
the custom legally recognized in Gujerat. Keshav
Herkha v. Ganpat Hirachand 8 Bom.. A. C. 87

22. PROCESSIONS.

. Suit for declaration of right to

carry religious emblems in a procession

and for damages— i^v-A; of suit— Public highwaij.
A suit for declaration of right to carry rehgious
emblems in a procession through the streets of a

JURISDICTIOTJ- OF CIVIL COURT—

contd.

22. PROCESSIONS— coracW.

village and for damages for preventing the plaint-
iff from doing so lies in the Civil Court. In a case
in which a Mahomedan of the Shea sect, claiming
to be a part o^vner of a village, was prevented by a
number of the rival sect of Sunnis from introducing
the emblems of a standard and flags and a massack
pierced by an arrow in the procession of tazias
during the Mohurrum it was held that a suit of this
description would lie either on the footing that the
roads were roads of which the public had the use or
on the footing that the plaintiff had a right as one
of the sharers in the village. Mohamed Abdul
Hafiz v. Latif Hosein . t. L. R. 24 Cale. 524
See Stjjaudin v. Madhavdas

I. L. R. 18 Bom. 693

23. PUBLIC WAYS, OBSTRUCTION OF.

1. Erection of building in pub-
lie road — Nuisance. A person aggrieved by
the erection of a building in a public thoroughfare;
or on the waste land of a town or village, may in-
stitute a suit in a Civil Court for its removal, instead
of preferring a complaint to the Magistrate. Jina
Raxchod v. Jodha Ghella . . 1 Bom. 1

2. Suit for closing a new road

and opening old one. In a suit for closing a
new road opened by the defendant through the land
of the plaintiff, and for opening an old road which
had been clo.sed by the defendants : — Held, per
Markby, J., that the question of opening and
closing a public road belongs to the Criminal Court.
The Civil Court had no jurisdiction to entertain the
suit. HiRA Chand Banerjee v. Shama Charas
Chatterjee

3 B. L. R. A. C. 351 : 12 W. R. 275

3. Obstructing public road,

suit for — Special inconvenience — Dedication to
public. A suit will not lie for obstructing a public
road without showing any particular inconvenience
to the plaintiff in consequence of such obstruction.
A donor does not, by dedicating a thing to the
pubUc, necessarily become a guardian of the public
quoad that thing. Baeoda Prosad Mostafi v.
GoEA Chand Mostafi

3 B. L. R. A. C. 295 : 12 W. R. 160
4. No suit lies

for

obstructing a public road, unless the plaintiff can
show that he has suffered particular inconvenience
from such obstruction. Parbati Charan Mukho-
padhya v. Kalinath Mukhopadhya

4 B. L. R. Ap. 73

5. Suit by zamin-

dar for removal of obstruction — Special damage —
Special inconvenience — Cause of action. No suit
lies for the removal of an obstruction to a pubUc
way, unless the plaintiff proves special damage from
the obstruction ; and this equally appKes whether
the plaintiff is a zamindar or any ordinary member

( 6113 )

DIGEST OF CASES.

( 6114 )

jimisDicTioisr of civil court—

contd-

23. PUBLIC WAYS, OBSTRUCTION OF— co»<d.

of the community. Raj Narain Mitter v. Eka-
DASi Bag . . I. L. R. 27 Calc. 793

6. Obstructing public road —

Suit for declaration of right of ivay — Special damage.
A suit for declaration of right of way by a public
road will not lie, where there is no allegation of
special injury or inconvenience to the plaintiff.
Ramtarak Karati v. Dinanath Mandal

7 B. L. R. 184

Raj Lukhee Debia v. Chunder Kant Chow-
DHRY 14 W. R. 173

Bhageeruth Bishee v. Gokul Chunder Mun-
DUL 18 W. R. 58

Bhugeeruth Dass Koyburto v. Chundee
Churn Koyburto . . 22 "W. R. 463

7. Criminal Pro-
cedure Code, 1872, s. ,521. No suit for obstructing a
pubUc thoroughfare can be maintained in a Civil
Court without proof of special injury. Karim
Baksh v. Budha . . I. L. R. 1 All. 249

Special damage

— Abatement of nuisance — Criminal Procedure Code
{Act X of 1872), s. 518 — Damages, right to. Where
special damage is caused to any person by an
obstruction placed upon a public thoroughfare, he
is entitled to bring an action in the Civil Court for
the purpose of having the nuisance abated, not-
withstanding the provisions of s. 518 and the follow-
ing sections of the Criminal Procedure Code for
summary proceedings before a Magistrate, and
notwithstanding that he may be entitled to damages.
Raj Koomar Singh v. Sahebzada Roy

I. L. R. 3 Calc. 20
Public thorough-

fare— Eight to sue — Special damage — Leave — Right
of lessee — Trespass. The plaintiff, a holder of a
ten years' lease of the share and rights of one of
the co-sharers of a village, sued for the demolition
of certain buildings and constructions on a plot of
land within the area of the village on the ground
that the pubUc had been very much inconvenienced
in going to and coming from the road and in taking
rarts, carriages, cattle, etc., and that he by reason
(if liis own inconvenience, and also as lessee in pos-
vcssion of the entire rights of his lessor, had legally
and justly a right to bring the action. The findings
of fact were that by the terms of the lease plaintiff
was entitled to maintain the action as representing
the zamindari rights of his lessor ; that the ob-
structions complained of existed when the lease
was granted ; that the roadway mentioned in the
plaint was one used by the pubhc in general as a
foot-path and also for vehicles, and that the build-
mgs complained of had encroached on the road.
The suit was dismissed by the first Court, but
decreed on appeal by the lower Appellate Court.
Held, that, in the absence of proof of damage over
and above that which in common with the rest of

VOL. III.

JURISDICTION OF CIVIL COURT—

contd.

23. PUBLIC WAYS, OBSTRUCTION OF—
coucld.

the public the plaintiff has sustained, his action
must fail. Public nuisance is actionable only at
the suit of a party who was sustained special dam-
age, and the case law of British India in this re-
spect is the same as the rule of English law on the
subject. Further, that the lease to plaintiff failed
to show either that the land upon which the defend-
ant had built was included in the lease, or that it
intended to confer upon the plaintiff any right to
question the legahty of the erections at the time of
the lease. Satku v. Ihrahim Aga, I. L. R. 2 Bom.
457, and Karim Buksh v. Budha, I. L. R. 1 All.
249, referred to. Ramphal Rai v. Raghtjnandan
Prasad .... I. L. R. 10 AIL 498

10. Obstruction by

building — Suitby zamindar for removal of buildings
— Special damage — Right to sue. The plaintiff, who
was the zamindar of the village, brought an action
claiming to have a chabutra or building erected by
the defendant in one of the village roads removed.
The road in question was a katcha road used by the
village over which the public had a right of way,
and it had been dedicated as a road for the use and
convenience of the general public. The plaintiff
got a decree for the removal of the chabutra, and
the defendant appealed. Held, that the rule of
EngUsh law that a member of the pubhc cannot
maintain an action for obstruction to a pubhc
road without showing special injury to himself
beyond that suffered by any member of the public,
does not apply to a zamindar who or whose prede-
cessor in title had dedicated to the public the road
over his zamindari land. A zamindar in giving
the public right of road or way over his land does
not give the public or anyone else a right to inter-
fere with the soil of the road as by erecting a build-
ing upon it. In such a case the zamindar has in
common with the public the right to use the road
as a road ; over and above it, he has a right to the
soil in the road, which he bad never given the
public. In an action of this kind, the zamindar
does not sue as a guardian of the public, but in
respect of an interference with his own rights of
property. Baroda Prosad Miistafee v. Gorachand
Mustafee, 3 B. L. R. A. C. 296 : 12 W. R. 160,
discussed. Dovaston v. Payne, 2 Smith's L. C. 1st
Ed. 154 ; R. v. Pratt, 4 E. <k B. 8n0 ; Rolls v.
Vestry of St. George the Martyr, Southivark, L. R.
14 Ch. D. 78-5 ; and Goodson v. Richardson, L. R.
9 Ch. D 221, referred to. Tota v. Sardul Sing

1. L. R. 10 All. 553

24. REGISTRATION OF TENURES.

1_ , ^ Stiit to compel registration

of tenure — Suit to compel Collector to rqjister
and assess land transferred in accordance with Mad.
Reg. XXV of 1802. The Civil Courts have jurisdic-
tion to entertain a suit brought by the alienee to
compel the Collector to register and sub-assess a

9 I

( 6115 )

DIGEST OF CASES.

6116

JCJUISDICTION OF CIVIL COURT—

C07ltd.

24. REGISTRATION OF TENURES— <x)»<d.

portion of a zaniindari transferred in accordance
with the provisions of Madras Regulation XXV of

1802. PONNUSAMY TeVAR V. COLLECTOR OF

Maduea 3 Mad. 35

2. _ Suit to compel Collector to

register — Chota Nagpur—Beng. Regs. 11 cf 1793,
*. .9, and XIII of 1S33. A suit will not lie to compel
a Collector in Chota Nagpur to register a party as
proprietor of an estate. Lalla Bissen Pershad
V. Collector of Hazabibagh . 13 W. R. 397

3. Eight of transferee to have

name registered— .4 c< X of 1S59, .v. 27. The
right given by s. 27 of Act X of 1859 to the trans-
feree of a permanent transferable interest in land
to have his name registered in the sherista of the
zamindar in the place of that of his vendor is a
right of a civil nature, and therefore the Ci\il Courts
have cognizance of all suits necessary for the pur-
pose of enforcing such right. The jurisdiction of
the Collector is not exclusive, but concurrent.
Madhttb Chttxder Pal v. Hills

1 B. L. R. A. C. 175 : 10 W. R. 197

4. Right of claimant to have

name registered — Jurisdiction. of Revenue
Courts — Question of title — Registration of names —
Declaratorij decree, suit for. It is not the province
of a Revenue Court to decide questions of title
between contending claimants, such questions being
within the province of the Civil Courts. It is the
duty of the latter in suits brought for declaration of
a right to registration to declare the rights of parties
in order that the revenue authorities may be duly
certified as to the persons whom they ought to
register. Jugut Shobhun Chundeb alias Doolal
Chttnder Dehingur Gossamy v. Binaud Chundeb
alias Soda Shobhun Chunder Dehingur Gossamy

I. li. B. 9 Calc. 925

Land in Ai

—Suit for declaration of title to — Jurisdiction of
Civil Court. A person claiming a right to rent-
bearing land in Assam, held under a pottah from
Government in the names of the persons against
whom he claims, is entitled to sue in the Civil Court
for a declaration of his title and right to have his
name registered as co-owner in the Collectorate ;
and the Civil Court has jurisdiction to determine
such suits, although the Collector has not been first
applied to, but should not pass any order against
the Collector in any suit to which he is not a party
but merely declare what the plaintiff's rights arc.
Bejoy Keot v. Boria Keot

I. L. R. 7 Calc. 437 : 9 C. L, R. 218

KaLINDRI DABLi V. KOMOLOKANTO SUBMA

I. L. R. 7 Calc. 439 note

HOOTABOO PvAVAH V. LoOM RaVAH

Ij, R. 7 Calc. 440 note : 7 C. L. R. 221

*^'. 7 — ~ ' ^ower to reverse order for i

registration of name— Land Reyistratwn Act i

JURISDICTION OF CIVIL COURT—

contd.

24. REGISTRATION OF TENURES— co«cW.

(Beng. Act VII of 1876), ss. -52, 55— Declaratory
decree — Possession, confirmation of. The CivU
Courts have no jurisdiction to make a decree revers-
ing an order for the registration of the name of any
person made by a registering officer under Bengal
Act VII of 187G. All that the Civil Courts can do
is to declare the title of an individual or to give him
a decree for possession, pnd then the registration
officers, would, as a matter of course, proceed to
amend their registers in accordance with the rights
of the parties as settled by the Civil Courts. Om-

RUNISSA BiBEE V. DiLAWAB AlLY' KhAN

I. L. R. 10 Calc. 350

7, - Right of purchaser to have

lands registered in his name in revenue
records — Vendor and purchaser — Suit for declara-
tion of such right — Bombay Land Revenue Act {Bom-
Act V of 1879), ss. 71 and 196— Demand for regis-
tration and refusal of Collector as preliminary to
right of suit. Plaintiffs, having purchased certain
lands in 1867, brought this suit in the year 1890 to
obtain a declaration of their right, to have the land
registered in their name in the revenue records. An
objection having been raised in second appeal
that the Court had no jurisdiction to entertain the
suit, as the plaintiffs had not previously asked the
Collector to place them on the register : — Held, that
this circumstance was not necessary to give juris-
diction, although it might be a reason for treating
the suit as premature. Bhikaji Baji v. Pandu

1. L. R. 19 Bom. 43

25. RELIGION.

1. Mahomedan religious cus-
toms— Civil Procedure Code, s. 11 — RigM of
suit — Suit for injnnclion to restrain reading of the
kutbah. Certain Moplahs, described as " the
Moktessor and Jamats " of a mosque, sued certain
other Mahomedans, described as " members of the
Puslar caste," alleging that the custom was for the
defendants to attend the plaintiff's mosque on
Friday at the reading of the kutbah, and that the
defendants had recently built another mosque a
short distance off, and had " for two months been
attempting to read the kutbah there." It was
further alleged in the plaint that such reading of
the kutbah was " quite contrary to the Mahomedan
religion," and that the defendants nevertheless
proposed to have the kutbah read, " whereby the
kutbah or adoration conducted in our mosque will,
according to religion, be fruitless." The prayer of
the plaint was tor an injunction, restraining the
defendants from reading the kutbah in their mosque.
Held, that the plaint disclosed no cause of action.
Maine Moilar v. Islam Amanath

I. L. R. 15 Mad. 355

2. Suit for declaration of right

to recite text — Jurisdiction of Civil Courts—

( 6117 )

DIGEST OF CASES.

( 6118 )

JURISDICTION OF CIVIL COURT—

contd.

25. RELIGION— confrf.

Maintainability. A suit is not cognizable in a
Civil Court, where the subject of the plaintiffs'
claim is confined to rights in religious ceremonies
without a claim to any office or any emolument. A
right to recite sacred texts in a temple is a matter
of ritual of ceremony in a religious matter with
which a Civil Court has nothing to do. Subba-

R-WYA MUDALIAR V. VeDAKTACHARIAB (1905)

I. L. R. 28 Mad. 23

3. — — Subject-matter of suit of

mixed spiiritual and temporal character— i/

the two intimatdy connected, a Court can enquire, into
the spiritual matter — Right to bury dead is a civil
right. Although Courts in this country have no
jurisdiction in suits relating to ritual or rehgious
observance only, the Courts are bound to inquire
into questions of religion or ritual which are material
for the determination of civil disputes ; and when
the matter in dispute is of a mixed spiritual and
temporal nature jurisdiction to inquire into the
spiritual question will depend upon whether it is so
intimately connected with the temporal as to be in-
separable from it. The right of burial is a civil
right : and an interference \\-ith the right of recit-
ing prayers in connection with such burial is an in-
vasion of the civil right. Anandrav Bhikaji Phadke
v. Shanker Daji Charya, I. L. B. 7 Bom. 323 ;
Ram Rao v. Rustumkhan, I. L. R. 26 Bom. 19S,
referred to. KooNi Meera Sahib v. Mahomed
Meeba Sahib (1906) . I. L. R. 30 Mad. 15

Removal or alteration of
marks — Ju risd id ion — In ju n ct ion
No injunction to

religious

against trustees of temple

restrain an act which edthough an innovation does
not interfere with worship. Removal or alteration
of namams, or religious marks, in a temple
amounts to an interference with property, and
will be a ground for action in the civil Courts.
The trustees of a temple may be restrained by in-
junction from making unjustifiable changes which
would affect the character of the temple as a religi-
ous institution. Where, in a temple in which two
rival sects following rival gurus have interest and
worship, the trustee introduces a new metal idol, in
addition to the existing stone idol of one of the rival
gurus, such introduction, when not effected at the
expense of the temple and when it does not inter-
fere with the worship of the rival sect, is not incon-
I sistent with the usage of the institution and ought
j not to be restrained by an injunction. Krishna-
I SAMi Ayyangar v. Samaram Singrachariar (190(i)
I. L. R. 30 Mad. 158

1 5. Suit by temple committee

I against temple servants for declaration as
I to their right to have the services per-
formed—C'ir«7 Procedure Code (Act V of lUOS),
s. 9— Civil Court—Suit of a civil iiatnre. The
plaintiffs, as members of the committee of
management of a temple, received annually from
Government a sum of money for defraying the

JURISDICTION OF CIVIL COURT—

contd.

25. RELIGION— concW.
expenses of certain kinds of religious worship in
the temple, and it was obligatory upon them to
get the worship performed by the hereditary
officers of servants attached to the temple.
Those officers owing to quarrels among themselves,
failed to perform the worship, with the result that
the duties owing to the deity were neglected and
the funds in the hands of the plaintiffs remained
undisbursed for the purposes for which they were
held in trust. The plaintiffs, therefore, filed this
suit against the temple servants for a declaration of
the former's right to disburse the funds by getting
the worship performed by a suitable person or per-
sons of their o\\-n choice in the event of the heredi-
tary officers cr servants of the temple concerned
failing to perform it, and for an injunction to re-
strain those officers or servants from obstructing
the plaintiffs in the exercise of the right so declared.
It was objected to the suit that it was
not triable by a Civil Court because its
prayer was for a bare declaration of the plaint-
iff's' right either to perform by themselves or to
get performed certain religious ceremonies in a
temple, and there was no contest as to any right to
property or to any office. Held, that the suit was
of a civil nature. " An action would lie against the
plaintiffs by the Advocate-General acting on behalf
of the public to compel them to a due execution of
their particular acts of duty. The obligation cast on
them by the trust gave"^ them a correspording
right to\lisburse the funds after getting the rdmi-
ous worship for \\hich those funcfs' were intended,
properly performed. Such a right was not the less
of a civil nature though the funds were to be appro-
priated to religious ceremonies. The Court was not
called upon to enter into the adjudication of a,ny
rights or ceremonies as such. What it had to decide
was the right of the trustees to fuliil the trust
unhindered. Trimbak Gopal v. Krtshx.vrao
Pa^durang (1909) . I. L. B. 33 Bom. 387

26. RENT AND REVENUE SUITS.
(a) Bombay.

1_ Suits for immediate posses-
sion—J?<r»s«;?)V://o7i of Revenue Court. Held, that
the Civil and the Revenue Courts have concurrent
jurisdiction to hear and decide suits in regai-d
to immediate posi-es.-ion. E^ parte Nagova
Kam Jakan Gauda . . 3 Bom. A. C. 108

2. Suit to rectify assessment of

land revenue— /?o7>/. Reg. XVII of 1S2?. The
jurisdiction of Civil Courts in questions of assess-
ment, as that jurisdiction stood under Regulation
XVII of 1S27. Ch. I, was confined to cases where
the contention was *hat there is a right on the part
of the occupant of the assessed land in limitation of
the right of Government, in consequence of a speci-
fic Umit to assessment having been established and
preserved. Government of Bombay v. Sundarji
Savram . . 12 Bom. Ap. 275.

9 I 2

( 6119 )

DIGEST OF CASES.

( 6120 )

JURISDICTION OF CIVIL COURT-

contd.

26. RENT AND REVENUE SUITS— contd .

(a) Bombay — contd.

See also Gtjlam Mohidin v. Collector of
AiiMEDABAD . 12 Bom. Ap. 276
Vyakunta Baptjji v. Government of Bombay
12 Bom. Ap. 1

And Government of Bombay v. Haribhai
IWoNBHAi . . 12 Bom. Ap. 225

3. Suit to recover possession

of inam. lands — Bom. Act III of ISHS, s. 3.
Bombay Act 111 of 1863, s. 3, deprives the Civil
Courts of jurisdiction in respect of all claims against
Government on account of inams, in other words,
claims referring to total or partial exemption from
the payment of Government revenue, but it does
not deprive the Civil Courts of jurisdiction in re-
spect of claims to recover possession of inam lands.
Shidmal Gura v. Anderson . 11 Bom. 39

4. Removal or destruction of

boundaries —Bom. Act II of 1866 — Encioachment.
Where boundaries are removed or destroyed and
when new ones are to be fixed, or where a question
arises where boundaries run, the case falls under
^. 3 of Bombay Act XI of 1866 ; but where the
question between the parties is whether there has
been an encroachment by the defendant on the
lands of the plaintiff, the Civil Courts have juris- j
diction. Bapfji Eai.vant v. Raghunath V:thal
6 Bom. A. C. 72
5^ Suit for amount improper-
ly levied as rent — Broach Talulcdars' Relief
Act (XV of 1871), s. 23 — Personal liability of inana-
■ger of thaJcur. The Broach Talukdars' Relief Act
(XV of 1871) docs not bar the cognizance by the
Civil Courts of a suit to recover the amount impro-
perly levied as rent of rent-free land and to obtain
a declaration that such land is not subject to the
payment of rent, albeit that, under s. 23 of the Act
the manager of a thakur's estate is exempt from
personal liability for anything done by him bond
fide pursuant to the Act, and is not subject to an
action for damages on account of the attachment
of the plaintiff's propierty. Asmai, Sai.eman v.
Collector of Broach I. L. R. 5 Bom. 135

6. Inam Commissioner, in-
vestigation of a claim by, under Act XI of
1852, and decision thereon — Bomha?/ Revenue
Jurisdiction Act {X of 18i(i), s. 4, els. (/) and (k)—
Government resolution settinc/ aside the Comrrds-
sioner\i decision — " Adjudication " — Claim for in-
terest on mesne profits awarded hy Qovernrnent reso-
lution—ConAruction In 1859 the plaintiff's claim
to hold a certain village as an inam village was in-
vestigated by the Inam Commissioner under Act XI
of 1852 and rejected, and the plaintiffs were dis-
possessed of the village. In 1861 Government con-
firmed the Commissioner's decision on appeal by
the plaintiffs. Ultimately, however, in 1882, Gov-
ernment passed a resolution reversing its former

JURISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— conW.
(a) Bombay — contd.

decision, and subsequently passed a further reso-
lution allowing the plaintiff's claim to the village
and ordering the same to be restored to them. In
1885 the village was restored to the plaintiffs, and
the arrears of revenue since 1859 were paid back to
them. The plaintiffs then claimed interest on the
arrears, and, being refused the same, sued to re-
cover it. The District Judge was of opinion that
s. 4, cl. (/), of Act X of 1876, barred the cognizance
of the suit by the Civil Court, but referred that
question under s. 13 of the Act to the High Court.
Held, that the Civil Court had jurisdiction to try the
suit. The resolutions of Government amounted to
a distinct adjudication by competent officers that
the land was exempt from payment of revenue,
and was sufficient to give the Civil Courts jurisdic-
tion over the plaintiffs' claim. Per Birdwood, J. —
That the claim of the plaintiffs being to obtain all
the advantage flowing from the favourable decision
of Government in 1882, cl. (/) of s. 4 of Act X of
1876 apparently did not apply. The words " com-
petent officer" as used in prov. {k) included the
Governor in Council, who is one of the authorities
upon whom judicial powers were conferred by Act
XI of 1852. Janardanrav v. Secretary of
State for India . I. L. R. 13 Bom. 442

7, Suit for redemption of

mortgage— 7?owi6a// Revenue Jurisdiction Act (Z
of 18/6), s. 4, cl. (c)—Sale of mort/jaged land hy
Native Chief for arrears of assessment— Claim hy
purchaser against mortgagor and mortgagee. The
plaintiff sued to redeem certain land mortgaged by
' him to the first defendant. The second defendant
! claimed the land as owner, alleging that the mort-
I gagor and mortgagee had failed to pay the assess-
ment on the land to the Native Chief to whom it
! was due. The latter had accordingly sold it by
public auction to realize the assessment, and he
(defendant No. 2) had bought it. The Court of
I first instance rejected the plaintiff's claim on the
i ground that the suit could not be entertained by a
I Civil Court under the provisions of the Revenue
.lurisdiction Act (X of 1876) and the Land Revenue
Code (Bombay Act V of 1879). On appeal the
District Court reversed the decree and remanded
the case for trial on the merits. Held, confirming
the order of the District Court, that Government
having rendered no assistance in the proceedings
' for the realization of the revenue by the Native
Chief on which the defendant relied, the jurisdic-
tion of the Civil Court was not taken away by s. 4
(c) of the Revenue Jurisdiction Act. JIahadu v.
Lakshman . . I. L. R. 17 Bom. 681

8. Suit by an inamdar against

a kiiot to recover balance of land revenue—
Revenue Jurisdiction Act {X of 1876), s. 4, suh-cl.
(h)— Bombay Land Revenue Code (Bom. Act V of
1879), s. 216, els. (a), (b), and (c)— Collector' s certi-
ficate—Pemiotis Act (XXIII of 1871), s. 4— Survey

( 6121 )

DIGEST OF CASES.

( 0122 )

JUHISDICTION OF CIVIL COURT- JURISDICTIOIf OF CIVIL COURT-

coma. 1 contil.

26. RENT AND REVENUE SUITS— con^rf.

(a) Bombay — cotUd.

hij British Government — Change in rate of assessment
of revenue. In a suit by an inamdar of a village
against a khot to recover rent in kind (according
to the market rate at the time of payment), the
defendant (khot) contended (i) that he was only
liable to pay cash assessment as fixed bj' the survey
made by the British Government, which was at a
lower rate than he had previously paid ; (ii) that the
suit was barred for want of the Collector's certi-
ficate under s. 4 of the Pensions Act (XXIII of
1871) ; and (iii) that the Civil Court had no juris-
diction to entertain the suit under the Revenue
Jurisdiction Act (X of 1876). s. 4, sub-cl. (6), and
the Land Revenue Code (Bombay Act V of 1879),
s. 216, sub-cl. (b). Helrl, that, 'as there was no
objection by either party to the amount or incid-
ence of assessment of land revenue fixed by Govern-
ment, and the question being wljcther the khot was
liable to pay to the inamdar maktas of assessment,
the suit was not taken away from the cognizance
of the Civil Courts, bv the Revenue Jurisdiction
Act (X of 1876), s. 4, sub-cl. (6). Held, further, that
the Court was not precluded from entertaining the
suit for want of the Collector's certiSeate under the
Pensions Act (XXIII of 1871), s. 4, because the
original grant passed the lands, and because it is
the original grant which determines whether the
Pensions Act is applicable, and not the actual
rights which the grantee, as a matter of fact, may
have enjoyed by it. Held, further, that the pay-
ment which the khot had been making to the inam-
dar before the time of the British survey' was in the
nature of assessment or rating by Government,
but held, also, that the plaintiffs were entitled to the
old assessment as claimed by them. It was plain
that in cases falHng within sub-cls. {a) and (e) of
s. 216 of the Land Revenue Code (Bombay Act V
of 1879), the inamdai's interest in the assessment
would not be affected bv the application of Schs.
VIIT to X of that Act. He would still get the old
assessment in the alienated lands in the village in
the former case, and the same amount of a.ssess-
ment in the latter, and the same must have been
the intention in cases contem])]ated by sub-cl. (h).
The " holder of the village" in the concluding para-
graph of s. 21 6 must be read as meaning the " holder
of the assessment or any ])art thereof of an alien-
ated village." Gangadhar Hari Karkare v.
MoRBHAT PuEOHiT . I. L. R. 18 Bom. 525

9. Default in paying assess-
ment of revenue — Bombay Revenue Jurisdiction
Act {X of 1S76), ss. 4 (c) c'lnd 6 {b)— Payment of
assessment by another — Order of Collector transfer-
ring lands into name of person paying assessment —
Suit by dejaidter to recover the land. An order made
by a Collector removing A's lands from his khata,
and transferring them to B''s khata, on the ground
that A had allowed the assessment thereof to fall
into arrears, and that B had paid the assessment, I

26. RENT AND REVENUE SUITS-^onW.
(a) Bombay — corOd.
tllTL ?L^!!!.^L^--"^^° f-feiture of A^s

terests in the lands. A suit bv Tt^ ."

land from ^ being sim^y"! siiit^ltrnTrilafe
parties for the purpose of establishing, a private
right s 4 (c of Act X of 1876 does not ba" the
jurisdiction of the Ci^dl Court. Bhau r. Hari

I. L. R. 20 Bom. 747

10. Forest Officer— /;o//,6,„y Re-
venue Jurisdiction Act (X of LSi'j), ss. 3 and 11

Revenue Officer— Forest Act {VII of 1878), s. 81.
The bar of jurisdiction contained in s. 11 of Act X
of 1876 does not apply to cases in which a Collector
moves under s. 81 of Act VII of 1878 to recover, at
the request of a Forest officer, the price of cut
timber sold by the latter under s. 81 of Act VII of
1878, a Forest officer not being a Revenue officer
under Act X of 1876. Haribhai Gaxdabhai v.
Secretary of State for Ixdl\

I. Ii. R. 20 Bom. 764

11. Free pasturage— 5ow(6r/y Re-

vemie Jurisdiction Act (X of lS,n), s. 4, cl. (/),
and s. 5 — Bombay Survey and Settlement Act (Bom'.
Act I of 1866), s. 32— Land Revenue Code [Bom. Act
V of 1879), ss. 38 and 39 — Land set apart by Govern-
ment for grazing — Subsequent sale by Government of
part of such land— Right of pasturage by the inhabit-
ants of a village over Government u-aste lands— Right
of Government over such land. The land comprised
in three survey numbers situate in the village of
]\lahim were set apart by Government as free graz-
ing land for the cattle of villagers. Out of this land
about 2,600 acres w'as sold by Government to one
M (defendant No. 2) m 189L The extent of the
area over which village cattle grazed before the
sale being thus curtailed, the plaintiff for himself
and on behalf of the other villagers brought this
suit against the Secretary of State and J/, alleging
that the land left for grazing after the sale of 2,600
acres was insufficient for the pasturage of the village
cattle and praying (in the alternative) that Govern-
ment shoukl set apart so much of the land as might
be necessary for free grazing, etc., and that, until
such land as was neces.sary had been set apart, the
plaintiff might be declared to have the right of
using the land comprised in the three survey'
numbers as heretofore, and that an injunction might
be granted accordingly. Government alleged that
the land that was left after the sale to M was suffi-
cient for the bond fide needs of the villagers, and
contended (inter alia) that the suit was barred under
s. 4, cl. (/), of the Revenue Jurisdiction Act (X of
1876). Held, confirming the decree of the lower
Court dismissing the suit, that while the Courts,
consistently with the course of legislation, may
have juriscliction to declare that the ^•illage^s of a
specified village are entitled to rights of free past-
urage over Government waste lands within the hmits
of their village, still they can go on further and

( 6123 )

DIGEST OF CASES.

( 6124

JURISDICTION OF CIVIL COURT— JURISDICTION OF CIVIL COURT—

contd. f^ntd.

26. RENT AND REVENUE SUITS— cowW.

(a) Bombay — condd.

enjoin the Collector to pursue any particular course
in connection with them while he is acting bond fide
in pursuance of the power which the provisions of
the statute confer upon him. The claim being
against Government respecting the occupation of
waste land belonging to Government, the Civil
Courts are precluded from entertaining it under s. 4
of the Revenue Jurisdiction Act. A question re-
lating to the discontinuous occupation of the vUlage
wastes, by the village cattle is as much a question of
la.id revenue as one relating to the permanent occu-
pation of them or a portion of them by an individual.
Tkimbak Gopal Rahai.kar v. Secretary of State
FOR India . . I. L. R. 21 Bom. 684

{h) Madras.

12. Enfranchisement by Inam

Comm.issioner. Civil Courts have jurisdiction to
enquire into the title of lands enfranchised by the
Inam Commissioner, and the sanad granted by the
Commissioner may be annulled, without destroying
its effect as an enfranchisement of the inam in a
suit by the adopted son of the late possessor of
inam to recover it : — Held, that the Court had juris-
diction, notwithstanding the production by the de-
fendant of title-deeds showing that the land had
been granted to the defendant by the Inam Com-
missioner. Cherukuri Venkaxna v. Maxtra-
VATHi Lakhsmi Narayana Sastrulu 2 Mad. 327

13. Effect of certificate of Inam

Commissioner — Evidence of title. The certi-
ficate of the Inam Commissioner does not afford
conclusive evidence of the title of the person, nor
is his decision one over which the Civil Courts have
no jurisdiction. Vissappa v. Ramajogi

2 Mad. 341

14. Order for execution in suit

tried by Village Munsif — Corruption or par-
tiality of Munsif— Mad. Reg. IV of 1816. The
Civil Court has no jurisdiction under s. 29 of Regu-
lation IV of 1816 to make an order for the execution
of a decree in a suit tried before a Village Munsif.
The section only applies where a Village Munsif
has been guilty of corruption or partiality in the
decision of a cause tried by him. Narayanasamy
Naikar v. Velu Pillay . . 4 Mad. 188

15. Suit for produce of land

held on service tenure— Mad. Reg. VI of 1831.
Regulation VI of 1831 prohibits the Civil Courts
from taking cognizance of a suit brought to recover
the value of three years' produce of certain land
(held by the plaintiff on service inam), on
the ground that the defendant, who held a lease
from the plaintiff, wrongfully refused to give up
possession on the expiration of his lease, and con-
tinued to hold the land and to deprive the plaintiff
of the possession and enjoyment thereof. Bassap-

26. RENT AND REVENUE SUITS— confd.

(6) Madras — condd.

pah, v. Kooroovatappa, Mad. S. D. (1858) 268,
distinguished. Basappah v. Yenkatappa

4 Mad. 70

16. Appeal from order of Col-
lector—Mad. Act VIII of 186-5, ss. 41, 43. Cer-
tain landholders apphed to the Collector for war-
rants to be put into possession of lands under s. 41
of Madras Act VIII of 1865. The warrants were
issued, but certain raiyats appealed under s. 43 by
presenting ordinary petitions. In disposing of
these petitions, the Collector referred certain ques-
tions to arbitrators named by the parties, and then
made an order in accordance with the award. The
Civil Court heard an appeal from the order. Held,
that the Civil Court had no jurisdiction to hear the
appeal. Madai Thalavay Kummarasamy Muda-
LiYAR V. Nallakannu Tevan . 5 Mad. 289

17.

land — Land in Jhansi — Act XVIII of IS'iT.
Since Act XVIII of 1867 came into force, suits for
possession of land are cognizable in the Civil, and
not in the Revenue Courts of the Jhansi Division.
Hera Lall v. Rudhoul . . 2 N. W. 85

18.

Suit for recovery of pro-

ceeds of sale in execution of decree for rent

— Decree of Ke venae Court. Where plaintiff held a
decree of a Munsif's Court against certain persons
who were cultivators, and issued an attachment
against their property, and their zamindar subse-
quently obtained an order for the execution of a
decree of a Revenue Court for rent against the same
parties, and also attached the same property, which
was eventually sold to satisfy both decrees, although
the proceeds were handed over to the zamindar
only : — Held, that a suit by the plaintiff against the
zamindar for the recoverj' of such proceeds was
cognizable in the Civil Courts. Gokool Dass v.
Gungesher Singh. . . 3 N. W. 164

See GoGARAM v. Kartick Chunder
Singh . B. L. R. Sup. Vol. 1002
9 W. R. 514

19.

Suit for specific perform-

ance of condition of lease. A suit to obtain
specific performance of the conditions of a lease,
and not to cancel the lease or eject the tenant from
his holding, is cognizable by a Civil Court, and not
by the Revenue Court. Abdool Ghunnee v.
Goodree Rai . . 2 Agra Pt. II, 192

20. . — Suit for declaration of

title as holder of revenue -paying estate and
for ejectment, A suit for a declaration that
the defendant holds an estate paying revenue to
Government as a manager subject to ejectment
at will, and not under a perpetual leaee at a fixed

( 6125 )

DIGEST OF CASES.

( 6126 )

JURISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— cowW.

rate of rent, and for the defendant's ejectment, is
one cognizable by the Civil Courts. Muhammad
Abu Jafar v. Wali Mahammad

I. L. R. 3 All. 81

21. Suit for mesne profits.

The jurisdiction in the case of a claim to mesne profits
is in the Civil, and not the Revenue Court. 8hun-
KUTi Lall v. Ram Lali.

1 N. W. 177 : Ed. 1873, 256

22. Suit to eject ex-proprietary

tenant as trespasser and recover mesne
profits. A suit to eject from land as a trespasser
a person who has entered ujjon such land asserting
his claim to the status of an ex-proprietary tenant,
and to lecover from him mesne profits, is a suit
cognizable by the Civil Court. Bakhat Ram v.
Wizrn Ar.i . . I. L. R. 1 All. 448

23. Suit to have land restored

to original condition after iilegai planting
of trees by tenant. M here the suit was not for
ejectment under Act X, but the zamindar claimed
to have the land restored to its original condition
by the removal of trees illegally planted b}' the cul-
tivator. Held, that such suit was cognizable by
the Civil Court and not by the Revenue Court.
JiioxA Singh v. Neaz Begum

2 Agra Ft. II, 183

24. . Suit for the removal of

trees — Landholder and tenant — Civil unci Revenue
Cohd.'s—N.-W. P. Bent Act {XII of 1881), s. 93 {b).
Held, that a suit by a landholder for the removal of
certain trees planted by the defendants upon land
held by them as the plaintiff's occupancy-tenants
was cognizable by the Civil, and not by the Revenue
■Court. Deodat Tiwari v. Gopi Misr, All. Weekly
Notes {ISS:^) 102, referred to. Gangadhar v.
Zahurriya I. li. R. 8 All. 446

25.

Suit by landholder for

Temoval of trees planted by tenant — Juris-
diction— Civil and Revemie Court— Act XII of ISSl,
s. 93, (b), (c), (cc). Held, that a suit by a landholder
•against his tenant for the removal of certain trees
planted by the latter on land let to him, for culti-
vatinc purposes by the former did not fall within
?. m of the N.-W. P. Rent Act (Xll of 1881), and
was cognizable by the Civil Courts. Deodat Tewari
V. Goj)i Misr, All Weekly Notes (18S2) 102,
questioned. Prosonno Mai Debi v. Mansa

I. L. R. 9 All. 35

26. — Suit for removal of trees

lirom tenant's holding— A^.- IF. P. Rent Act
(XII of 18S1), s. 93. Held, that a suit by zamindars
for the removal of trees planted by a tenant on his
■cultivatory holding is not cognizable by a Civil
■Court. Deodat Tiwari v. Gopi Misr, All. Weekly
Notes (1882) 802, referred to. Jai Kishen u. Ram
liAL . . . 1. Ii. R. 20 All. 519

JURISDICTION OF CIVIL COURT—

contd.

[26. RENT AND REVENUE SUITS— co««.

(c)"North-Western Provinces — contd.

27. _ Suit by assignee of inter-
est for share of land. In a solehnamah between
B, the assignor of the plaintiff, and the defendant
and a third party, it was agreed that, as B held less
sir land than the other two persons, there should be
an equal division between the shareholders within
a certain time, and in case no division took place
that B should be entitled to damages. The plaint-
iff sued to recover possession of certain sir land
and a certain sum as damages for the breach of the
contract. Held, that, if the suit was regarded as
one brought by a proprietor, who had purchased a
certain share, the suit was not cognizable in the
Civil Courts. Jurbundhun Singh v. Sheoraj
Singh . . . . 5 N. W. 184

28.

Suit for possession of land

under 'kaihvi[ia,t~ Landholder and tenant — Reli7i-
quiskment by oc.cupa7icy-tenant of his holding — Effect
of relinquishmeni on co-sharers — Act X VIII of IS 73
[N.-W. P. Rent Act), ss. 8, 9, 95—Specifi.c perform-
ance of contract. K, the occupancy-tenant of cer-
tain land, to whom the landholder had granted a
lease thereof for a certain term, gave the latter a
kabuliat containing the following clause : ■' On
the expiration of the term, the landholder shall
have the power to keep the said land under my cul-
tivation at the former rent, or at an enhanced rent
as may be agreed upon between the parties, or he
may make over the land to some other cultivator at
an enhanced rent fixed by himself." K died before
the expiration of the lease, and was succeeded by
his sons. On the exi^iration of the lease, the land-
holder sued ii'.s sons in the Civil Court for posses-
sion of the land, claiming under the kabuliat. Per
Mahmood, J. — That, inasmuch as the plaintiff did
not seek the determination of the class of the de-
fendants' tenure, and the suit could not be regarded
as one for ejectment of a tenant in the manner
provided by the Rent Act, but was one for specific
performance of a contract, based on the kabuliat,
according to the terms of which the plaintiff was
entitled, it was alleged, to oust the defendants, the
suit was cognizable in the Civil Court. Per Curiam t
That whatever might have been the effect of the
kabulit as regards K, it could not defeat the rights
of his sons, who had become by inheritance co-
sharers in the right of occupancy or had succeeded
thereto under the provisions of the Rent Act.
Lalji v. Naran . . I. L. R. 5 All. 103

29. Suit for declaration that

land is plaintiff's sir and defendant a lessee
— Landholder and tenant. A zamindar claimed a
declaration that certain land was his sir, and that
the defendants were in possession thereof as his
lessees. The defendants resisted the claim on the
ground that they were tenants of the land at fixed
rates, and not lessees of it as the plaintiff's sir.
Held, that the suit raised the question whether the
land was sir, in respect of which no occupancy-

( 6127

DIGEST Oi^ CASES.

( 6128 )

JURISDICTION" OP CIVIL COURT— | JURISDICTION OF CIVIL COURT-

contd. contd.

26. RENT AND REVENUE ^\]IT&— contd.

rights could be treated except by contract, and
whether the defendants were the plaintiff's lessees,
and that this was a question purely of contract,
and one which was cognizable in the Civil Courts.
Kauleshar Panday v. Girdhari Singh

I. L. R. 7 All. 338

30. Suit for declaration that

tenants are shikmis and not occupancy-
tenants, and that their holdings are plaint-
iff's sir land— ^f< XIX of 18,3 (N.-W. P. Land
Revenue Act), s. 241— N.-W. P. Rent Act (XII of
1S81), ss. 10, 9.5 (a). The effect of s. 95 (a) and
s. 10 of the N.-W. P. Rent Act (XII of 1881) is to
deprive the Civil Courts of jurisdiction to take cog-
nizance of any suit the object of which is to declare,
as between the zamindar and tenants, the status of
the tenants. A Civil Court has no jurisdiction to
entertain a suit in which, the defendants being
admittedljr the tenants of the plaintiffs, the plaintiffs
pray for a declaration that certain entries of
the defendants in the revenue records as occu-
pancy-tenants and certain orders of the Revenue
Courts maintaining those entries, be set aside, and
that the defendants are shikmis and not occupancy-
tenants, and that the land in question is the plaint-
iff's sir land. Such a suit cannot be brought with-
in the Civil Court's jurisdiction by dropping all the
reliefs claimed except the last-mentioned declara-
tion, that being merely of importance as incidental
to the previous ones, and as a roundabout mode of
obtaining a declaration that the defendants are not
the plaintiffs' occupancy-tenants. Per Straight,
J. — The suit might also be considered as one to set
aside orders passed by the settlement officer in the
discharge of his duty for the purpose of correcting
the jamabandi as a part of the record of rights, and
thus the jurisdiction of the Civil Court was barred
by s. 241 of the N.-W. P. Land Revenue Act
{XIX of 1873). Mahesh Rai v. Chandar Rai
I. L. R. 13 AU. 17

31. Suit involving the deter-

mination of status of tenant— A^.- IF. P. Rent
Act (XII of ISSl), s. 05. A Civil Court has no
jurisdiction to entertain a suit, the decision of which
necessarily involves the determination of the class
of tenancy of one or other of the parties to it.
Mahesh Rai v. Chandar Rai, I. L. R. 13 All. 17,
referred to. Sakina Bibi v. Swarath Rai

I. L. R. 15 All. 115

32. . - — Suit by zamindar to eject

as trespassers, persons who claimed to be
mortgagees of an occupancy-tenant, such
tenants having died without heirs before
suit— A'.- IF. P. Rent Act (XII of 1881), s. 9. S P
and others, zamindars, sued M K and others as
trespassers to eject them from certain land alleged I
to form part of the plaintiffs' zamindari. The
defendants pleaded that they were mortgagees, I

26. RENT AND REVENUE SUITS— confd.

holding under a mortgage with possession given by
one 8 G, said to be a tenant at fixed rates of the
land in suit. It was found that .S G had been an
occupancy-tenant not at fixed rates, and that he
had died without heirs prior to the institution of
the suit. Held, that the suit brought under the
above circumstances was cognizable by a Civil
Court. Sakina, Bibi v. Swarath Rai, I. L. R. 15
All. 115, distinguished. Mahabir Kandxj v. Shed
Prasad Rai ^ . . I. L. R. 16 All. 325

33, Suit for possession against

trespassers— A^.- IF. p. Rent Act, 18:3, XV III,
s- S — Sale of occupancy-rights with zamindar's con-
sent— Acceptance of rent hj zamindar from vendees.
Under a deed, dated in 1879, the occupancy- ten-
ants of land in a village sold their occupancy-
rights, and the zamindars instituted a suit for a
declaration that the sale-deed was invalid under s. 9
of Act XVIII of 1873 (the N.-W. P. Rent Act in,
force in 1879), and for ejectment of the vendees,
who had obtained possession of the land. It was
found that the zamindars had consented to the sale
to the vendees, and received from them arrears of
rent due on the holding by the vendors, and had
recognized them as tenants. Held, per Maidiood,
J. (Oldfield, J., dissenting), that the zamindars
having accepted the vendees as tenants and taken
rent from them, a tenancy was thereby constituted
under the Rent Law ; that the vendees were there-
fore not trespassers ; and that therefore the ques-
tion as to ejectment did not fall within the jurisdic-
tion of the Civ-il Court. Durga v. Jhinguri

I. L. R. 7 All. 511

Upheld on appeal under the Letters Patent in
Jhinguri Tewari v. Durga

I. L. R. 7 All. 878

Reversing the decision of Oldfield, J.

34.

N.-W. P. Rent

Act (XVIII of 1873), ss. 36, 39. S caused a notice
of ejectment to be served upon K in respect of cer-
tain land, alleging that he held the same by virtue
of a lease which had expired. K contested his
liability to be ejected under s. 39, denying that he
held the land by virtue of such lease and alleging
that he held it under a right of occupancy. The
Revenue Court decided that K held the land under a
right of occupancy, and not under such lease. S
thereupon sped K in the Civil Court, claiming
possession of such land, on the allegation that K
was a trespasser, wrongfully retaining possession
thereof after the expiration of his lease. Held, that
the suit was cognizable in the Civil Courts. Sukh-

DAIK MiSR V. KaRIM ChAUDHARI

I, L. R. 3 All. 521
35. Suit for demolition of a

well — Landlord and tenant — N.-W. P. Rent Act
(XVIII of 1873), s. 44. A suit in which the matte t

( 6129 )

DIGEST OF CASES.

( 6130 )

JURISDICTION OF CIVIL COURT—

contd-

26. REJJT AND REVENUE SUITS— ro»i,<f/.

in dispute is whether a landholder is entitled to
demolish a well constructed by a tenant is not one
cognizable in the Revenue Courts, but in the Civil
Courts. S. 44 of Act XVIII of 1873 implicitly
authorizes tenants of all classes to construct wells
for the improvement of the land held by them, and
therefore, where a well constructed by a tenant
benefits the land held by him, a suit by the land-
hcJder in the Civil Court for its demolition as having
been made without his consent is not maintain-
able. Raj Bahadur v. Birmha Singh

I. L. B. 3 All. 85

36. . Suit by assignee of rent

against tenant— xV.- IF. P. Rent Act (XII of ISSl),
s. 93 [d). A suit by the person, to whom a land-
holder has assigned rents payable to him by ten-
ants, for the recovery of the money so assigned is a
suit cognizable in the Civil Courts, and not in the
Revenue. Ganga Prasad v. Chandrawati

I. L. B. 7 All. 256

37. Assignment of rent of

land in satisfaction of interest — " Jumog "
— Mutation of 77am£s in favour of assignee not
effected — Suit on bond. Subsequently to the exe-
cution and registration of a bond, a jamog was
made orally between the creditor and the debtor,
by which the former agreed to take the rents of
certain tenants of the latter in satisfaction of in-
terest, the latter agreed to release the tenants
from paj-ment of rent to himself, and the tenants
(who were parties to the arrangements) agreed to
pay their rents to the creditor. No mutation of
names in favour of the creditor was effected in the
revenue registers. The creditor brought a suit
against the debtor to recover the principal and in-
terest agreed to be paid under the bond, alleging
that he had never received any rents under the
jamog : Held, that, whether or not the plaintiff
could maintain a suit on the jamog against the
tenants for the rent assigned to him in the Revenue
Court, he could do so in the Civil Court, and the
fact that the jamog was not in writing did not
affect the question. Gunga Prasad v. Chandra-
tvati, I. L. R. 7 All. 256, referred to. Auttt
Singh v. Ajudhia Saha

I. L. R. 9 All. 249

38. . Suit for share of revenue

paid — Jurisdiction of Revenue Court. N.-W. P.
Rent Act [X VIII of 1873), s. 93 (g). On the death
of K, a dispute arose among her heirs as to the
succession to the share of a village of which she was
the recorded proprietor. In Januarj' 1874, N who
was not one of her heirs, and who was not a share-
holder of such village, was recorded in the revenue
register as lambardar in respect of her share, and
was so recorded until February 1878, when his
na>ne was expunged, and the name of B, who was
one of the heirs, was recorded as the proprietor of

JURISDICTION OF CIVIL COURT—

contd.

26. REKT AND REVENUE SUITS— conW.

such share A" subsequently sued B to recover
R70-13-4, being the amount which he had paid on
account of revenue in respect (jf such share during
the period between January 1874 and February
1878, instituting such suit in a Ci\-il Court (Munsif):
Held, that the suit was not one cognizable in a
Revenue Court under s. 93 (g) of Act^XVIII of
1873, but one cognizable in a Civil Court. Nath
Prasad v. Baijnath. I. L. R. 3 All. 66

39. Suit for declaration of pro-

prietary right, and right to demand rent—
N.-W. P. Rent Act (XVIII of 1673). ■«. 93, 9o.
The plaintiffs in this suit claimed a declaration of
their proprietary right in respect of certain lands
and possession of the lands, alleging that the de-
fendants were their tenants, and liable to pay rent
for the lands. The defendants, while admitting the
proprietary right of the plaintiffs, alleged that they
paid the revenue as^esfcd on the lands, that they
paid no rent, and that the plaintiffs were not en-
titled to rent, and they styled themselves tenants at
fixed T&tei^:—Held. on appeal,'that, as the defendants
substantially denied the proprietary title of the
plaintiffs and set up a title of their own, the claim
of the plaintiffs for a declaration of their proprie-
tary right and of their right to demanil rent was a
matter which the Civil Court must decide, leav-
ing the plaintiffs to sue in the Revenue Court to
eject the defendants, and to recover rent, if the
position of the defendants as tenants was estab-
lished. Kanahia v. Ram Kishen

I. L. B. 2 All. 429

40, Suit by co-sharers in a

joint undivided mehal for declaration of
title to share of rent— Civil and Revenue
Courts— Act XII of ISSl (N.-W. P. Rent Act),
ss. 93(h), 106, 14S—Specific Relief Act (I of 1S77),
s. 42— Civil Procedtire Code, s. 11- The. effect
and intention of the proviso to s. 148 of the
Rent Act (XII of 1881) is to preserve the juris-
diction of the Civil Courts under s. 42 of the Speci-
fic Rehef Act (I of 1877), while prescribing a special
period of one year's hmitation for such suits when-
they arise out of adjudications such as s. 148 con-
templates. Neither that section nor the proviso
affects the jurisdiction of a Civil Court to entertain
a suit by some of a body of co-sharers in a joint
and undivided mehal for a declaration of their title
to receive a proportionate share of the rent payable
by the tenants. Having regard to s. 11 of the Civil
Procedure Code, a suit for the recovery of certain
sums of money as the plaintiffs' share for rent
alleged by them to have been wrongfully received
by the defendants, their co-sharers, and in which
the plaintiffs' right to receive any portion of the
rent claimed is denied by the defendants, is not
barred from the cognizance of the Civil Courts by
s. 93 (h) of the N.-W. P. Rent Act. That provisioa

( 6131 )

DIGEST OE CASES.

( 6132 )

JURISDICTION OF CIVIL COURT—

C07tt'l.

26. RENT AND REVENUE SUITS— conid.

does not contemplate su'ts in which such claims of
title are so made and resisted. But a suit by some
of the co-sharers in a joint and imdivided mehal for
such declaration and such recovery of a propor-
tionate share of rent as above referred to is barred
by the provisions of s. 106 of the N.-W. P. Rent
Act, in the absence of proof of local custom or
special contract authorizing such suits. Mahadeo
Singh v. Bachtt Singh I. L. R. 11 All. 224

41, Suit for declaration of pro-

prietary title in property said to have
been wrongfully distrained — Cicil Procedure
Code, s. 11— Act XII of 188 i {N.-W. P. Rent Act),
ss. 56, 83, 8 ', 93 (/) — Distress. In execution of a
decree against the tenants of certain zamindars,
the plaintiff attached and sold certain trees upon
the holding of the judgment debtors, and the auc-
tion-purchaser in turn transferred them to the
plaintiff, who obtained possession. Subsequently,
one of the judgment-debtors vacated the land on
which the trees were situate, and the zamindars
let the land to another tenant. This last-mention-
ed tenant having fallen into arrears of rent, the
zamindars, purporting to act under s. 56 of the
N.-W. P. Pent Act (XII of 1881), distrained some
of the trees of which the plaintiff was in possession
under his purchase, sold them, and themselves
bought them. The plaintiff then brought a suit
against the zamindars, praying for a declaration of
his right to, and maintenance of, possession of the
trees : Held, that the plaintiff was entitled, under
s. 11 of the Civil Procedure Code, to bring the suit
in a Civil Court, and that the Civil Courts were not
prevented from taking cognizance of it by ss. 83,
85, 93 (/) or any other provision of the N.-W. P.
Rent Act (XII of 1881. Shankar Sahai v. Din
Dial. , . . I. L. R. 12 All. 409

42. — . Agreement by occupancy-
tenant to relinquish his holding— ,SMi7 for
specifix, performance of agreement. The defendant,
who was a tenant with a right of occupancy in the
land cultivated and held by him, executed a kabu-
liat in respect of the said land in favour of
the plaintiffs (his landlords), agreeing that on the ■
expiry of the term fixed in the kabuliat he should
have no claim to retain possession of the cultiva-
tory holding, but that he should give it up. Plaint-
iffs sued for ejectment of the defendant on the
basis of the agreement, and obtained a decree from
the lower Appellate Court. On second appeal by
the defendant -.—Held, that, inasmuch as the plaint-
iffs sought to enforce the covenant contained in the
kabuliat in such a manner as to extinguish the
rights of occupancy found upon the facts of the
case to have been acquired by the defendants in
the land in suit, such suit must fail, as opposed to
the poHcy of the law as shown in the provisions of
s. 9 of the Rent Act (XII of 1881). Such a tenant

JURISDICTION OF CIVIL COURT—

contd-

26. RENT AND REVENUE SUITS— cowW.
(c) North- Western Provinces — contd.

may be ousted from his holding by enforcement of
the remedies given in that behalf in s. 95 {d) and (/)
in a suit in the Civil Court, but not in the manner
sought by the plaintiff in this action. Kauri
Thakurai v. Ganga Narain Lal

I. L. R. 10 All. 615

43. Application to a Civil

Court for stay of execution of a decree of a
Court of revenue— Civil Procedure Code,
1882, ss. 2 and 492 — " Decree,'' meaning of. The
term " decree " as used in the Code of Civil Proce-
dure does not include the decree of a Court of
Revenue : — Held, therefore that an application
under s. 492 of the Code of Civil Procedure for stay
of sale in execution of a decree of a Court of re-
venue in a suit under s. 93 of Act XII of 1881
cannot be entertained by a Civil Court. Onk.ar
Singh v. Bhup Singh . I. L. R. 16 All. 406

44. Suit for maintenance of

possession as tenants at fixed rates— A". -IF.
P. Rent Act {XII of J881), s. .9J {a)—N.-]V. P. Land
Revenue Act {XIX of 1873), s. 241. The plaintiffs
sued in a Civil Court alleging that they were ten-
ants at fixed rates of a cultivatory holding, and
that at the settlement the settlement officer had
entered the defendants in the village papers as the
tenants at fixed rates, and the plaintiffs merely as
mortgagees, and they asked for a decree for main-
tenance of possession " invalidating the proceeding
of filling up the columns at the recent settlement :"
Held, by the Full Bench (Banebji, J. dubitante),
that the suit so framed was not within the cogni-
zance of a Civil Court. Ajudhia Rai v. Parmeskar
Rai . . . .1. L. R. 18 All. 340

45.

— Suit for recovery of posses-

sion by tenant dispossessed by a trespasser.

CI. {n) of s. 95 of Act XII of 1881 (which enacts
that suits for recovery of occupancy of land of
which a tenant has been wrongfully dispossessed
shall be brought in a Court of Revenue) must be
taken to apply to cases in which a tenant of agri-
cultural land has been \\rongfully dispossessed by
the landlord or, at the instance of the landlord, by
some one claiming title through the landholder.
Where the dispossesi-ion has been by a trespasser,
the suit is one for a Civil Court. Maula v. Bahala
I. L. R. 19 All. 34

46, _ Suit to recover moveable

property sold on account of an arrear of
revenue due by a person other than the
owner of the property— A^.- IF. P. ia^rf Re-
venue Act {XIX of 1.S73), s. 241. Where in satis-
faction of an arrC'ir of revenue due by certain
defaulters some cattle belonging to another person,
who had no concern with the land in respect of
which the arrear ^\•as due, were sold, it was held
that the remedy of the owner of the cattle laj' en»
tirely in the Courts of revenue, and that no suit

( 6133 )

DIGEST OF CASES.

( 6134 )

JITRISDICTION or CIVIL COURT—

conhl.

26. RENT AND REVENUE SUITS— co««d.

would lie in a Civil Court respecting such sale.
Secretary of State for India v. Mahadei

I. li. B. 19 All. 127

^47.

-'Jurisdiction of Civil Courts

I JURISDICTIOISr OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— contd.
(c) North-Westerx Provinces — contd.

where no remedy obtainable in Courts of
revenue— .v.- jr. P. Rent Act {XII of ISSl), s. 95
{n)—N.-W. P. Land Revenue Act (XIX of 1S73),
s. 64. A plaintiff brought his suit in a Civil Court
alleging that he was entitled to the possession of
certain land as a tenant at fixed rates, and that in
consequence of the order of a settlement officer, he
had licen dispossessed by certain persons, alleged
hy him to be trespassers without title, whom he
made defendants, together with the zamindar of
the land in dispute: — /ieW, that, inasmuch as the
plaintiff could, under the circumstances indicated
in his plaint, have obtained no relief from a Court
of revenuf^, the Civil Court was competent to
entertain the suit, and to give the plaintiff a decree
for possession as agiinst the defendants, other than
the zamindar, who were found to be trespassers,
notwithstanding that the Civil Court could not
declare what ^^•as tlie nature of the plaintiffs'
tenancy. Tarapat Ojhn v. Ram Ratan, I. L. R.
Jo All. 387, and Ajiidhia Rai v. Parmeshar Rai,
I. L R. 18 All. 340. distinguished. Dukhna Kttn-
war v. Unkar Pande . ^ I. L. R. 19 All. 452

48. Suit in ejectment against a

trespasser. Although a Civil Court cannot give
a decree declaring or deciding the status of an agri-
cultural tenant, yet where a plaintiff, having no
remedy in the Revenue Courts, sues on the allega-
tion that he is a tenant entitled to possession, to
eject a trespasser, it is competent to a Civil Court
to grant a decree for possession on the ground that
the plaintiff is a tenant, the class of his tenancy
being left to the Revenue Courts to determine.
Ajudhia Rai v. Parmeshar Rai, I. L. R. IS All.
340, and Dukhna Knnwar v. Unkar Pande , I. L. R.
19 All. 452, referred to. Kaliani v. Dassu
i'\>^DE . . . I. L. B. 20 All. 520

49. . . . Suit to set aside, on the

ground of duress, an agreement by an ex-
zamindar for surrender of his sir land. On
the sale of a village, the vendor covenanted with
the vendee to hold his sir land as a tenant of the
vendee for a certain term and then to surrender it
to the vendee '.—Held, that there was nothing to
preclude the vendee from suing in a Civil Court for
a declaration that the said agreement was void
and unenforceable, and had been extorted from
hira by undue influence. Mahesh Rai v. Chander
Rat, I. L. R. 13 All. 17 ; Ajudhia Rai v. Par-
meshar Rai, I. L. R. IS All. 340 ; and Hussain
Nhah V. Go-pal Rai, I. L. R. 2 All. 42 S, referred to.
Daulat Ram v. Anwar Husen

I. L. R. 20 All. 241

50.

Effect on tenant's rights

of his neglecting to apply under s. 95 —
N.-W. P. Bent Act (XII of 18S1), s. 96, cl. (n). A
tenant of certain muafi laud Avas dispossessed by
his zamindars, as he alleged, wrongfully. The dis-
possessed tenant did not avail himself of the remedy
provided by s. 95, cl. (n), of Act XII of 1881 ; but
some time after the expiry of the period of limit-
ation for an application under that section, he dis-
possessed the zamindars, who had meanwhile taken
the land in suit into their own cultivation. The
zamindars thereupon sued in the Civil Court for
the ejectment of the former tenant as a trespasser :
Held, that the defendant could not set up in ans-v\ er
to this suit his status as tenant which he had lost
by not availing himself within limitation of the
means provided by s. 95, cl. (n), of Act XII of 1881,
to contest his own ejectment, and not the jurisdic-
tion of the Civil Courts. Dai.ip Rai v. Deoki Rai
I. L. R. 20 All. 471

Held, on appeal under the Letters Patent, that the
failure of a tenant to apply under s. 95 (n) of the
N.-W. P. Rent Act, 1881, for the recovery of the
occupancy of land, cf which he has been wrong-
fully dispossessed, within the period of six months
after the date of dispossession prescribed for such
applications by s. 96 (e) has the effect not only of
barring the tenant's remedy, but of extinguishing
the tenant's right to the occupancy of the land.
Dalip Rai v. Deoki Rai

I. L. R. 21 All. 204

51.

Suit to eject a tenant on

the ground that the tenant had denied the
landholder's title— X-ir. P. Rent Act (XII of
1881), s. 34 et seq., 95 (d), and 206 et .^cq.— Land-
holder and^ienant. The reason which a landholder
may have for desiring to eject a tenant of agricul-
tural land has nothing to do with the procedure to
be adopted for the tenant's ejectment. Where
the procedure laid down in s. 36 et seq. of the N.-W.
P. Rent Act, 1881. is availab'e, the landholder must
adopt that procedure, and the mere fact that the
lindholder's alleged cause of action is the denial
by the tenant of the landholder's title will not give
the l=indholder a risht to sue for ejectment in a
Civil Court. Ram SrKH v. Cncri. Citand

I. L. R. 21 All, 143

52.

Remedy of mortgagee for

non-payment of rent— Morttfagc- — Lca.'^e of
mortgaged /irrmiscs hi/ mortgagee to mortgagor —
Jurisdiction of Rcrenue Court. Certain mortgagee s
in whose favour a deed of mortgage providing for
possession in lieu of interest had been executed, on
the day following the execution of the mortgage
granted a lease of the mortgaged premises to the
mortgagor. The two documents were registered
on the same day. The amount of rent reserved by
the lease was exactly equivalent to the amount of

( 6135 J

DIGEST OP OASES.

( 6136 )

JURISDICTION OF CIVIL COUBT-

contd.

26. KENT AND REVENUE SUITS— conW.
(c) North- Western Provinces— co»<<?.

interest payable under the mortgage, and the mort-
(^age-deed contained a covenant that any arrears
due by the lessee should be a charge upon the
mortgaged property. In the counterpart of the
lease also a similar covenant making the mortgaged
property securitv for the rent payable under the
lease was insert"ed -.—Held, that, under the above
circumstances, the mortgage and the lease formed
merely different parts of the same transaction, and
that the mortgagees were entitled to seek their
remedy for non-payment of the rent reserved in a
Civil Court by means of a suit upon the mortgage,
and were not "obliged to have recourse to a suit for
rent in a Court of Revenue. Baghdin v. Mathnra
Prasad, I. L. B. 4 All. 430. followed, ^t^'^ai- An
Khan v. Lalta Prasad I. L. R. 19 All. 496

53^ Suit for possession and

mesne profits alleging tenancy and dispos-
session—Jc< A' Fiii of ]S73, s. <J5. The plaint-
iffs sued to recover possession of certain land on
the averment that they were occupancy-tenants
and the defendants had forcibly dispossessed them,
and also to recover mesne profits. The defendants
set up a rival title, but were found by the Court of
first instance, which dt creed the claim, to be the
plaintiff's shikmis. The decree of the lower Ap-
pellate Court dismissing the suit as one of which tl e
Civil Coiurts were precluded from taking cognizance
by s. 95, Act XVIII of 1873, was reversed, and the
suit remanded to it for disposal on the merits.
Mata Pakshad v. Janki . . 7 N. W. 226

54. , - Suit by tenant against

sub-tenant for ejectment— Lcnidholder and
tenant— Act XII of ISSl {N.-W. P. Beni Act),
Ch. II (B), ss. 93, 95, 14S. The plaintiffs, alleging
that they were the occupancy-tenants of certain
land, that they had sub-let its cultivation to the
defendants, arid that the defendant had denied
their title and set up a claim to be the tenant-in-
chief under the zamindar, sued in the Civil Court
to establish the right they claimed to the land and
for possession of the land -.—Held, that the cogni-
zance of the suit in the Civil Court was not barred
by s. 93 or 95 of the N.-W. P. Rent Act. Rtbban
V. Paktab Singh . . I. L. K. 6 All. 81

55. Suit to eject mortgagee of

occupancy tenant— iV. W. P. iJewi ^c< {XII of
1881), s-s. 93, 94— Limitation. A suit by the zamin-
dar to eject the mortgagee of an occupancy-holding
or his representatives in possession does not fall
within ss. 93 {h) and 94 of the N.-W. P. Rent Act,
but is cognizable by a Civil Court under the rules of
limitation applicai)le to suits in such Courts.
Madho Lall v. Shed Prasad Misr

I. Ii. R. 12 All. 419

56.

Suit for ejectment against

occupancy-tenant and his mortgagee-

JURISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— confd.

N.-W. P. Bent Act (XII of 1881), s. 94.— Limita-
tion. The plaintiff', a zamindar sued an occupancy -
tenant for ejectment under s. 93 (b) of the N.-W. P.
Rent Act (XII of 1881), and to that suit one C D, a.
mortgagee of the occupancy-holding who had ob-
tained a foreclosure decree against the occupancy-
tenant, got himself made a party defendant under
s. 112 A of the Act. The pleadings, however, were
not amended, and the suit proceeded to ajjjieal
before the District Judge -.—Held, that, under the
above circumstances, the suit as against C D, the
intervening defendant (who, so far as the plaintiff
was concerned, was a trespasser), was of a civil
nature and triable by the Civil Court, and therefore
subject to the ordinary rules of limitation as laid
down in the Limitation Act, and not to the spccia
limitf.tion prescribed by s. 94 of Act XII of 18S1.
Sri K^shen v. Ishri . I. L. R. 14 All. 223

57, Suit for possession alleg-
ing tenancy and dispossession— A^.- W. P.
Rent Act (X VIII of 1873), s. 7-5. The plaintiff sued
the defendants (who were not his landlords) to-
recover possess- ion of certain land on the averment
that he held the same with a right of occupancy and
had been forcibly dispossessed by them, and
also to recover mesne profits. The defendants
denied the alleged ejectment, and alleged that they
were in possession of the land under a lease from
the zamindar. It was held that the suit was one
of which the Civil Courts could take cognizanc >.
Raohobar Misser v. Sital . 7 N. W. 228

58. Suit for possession after

being dispossessed unlawfully— A^.- W. P.
Bent Act {XVIII of 1873), s. 95. Held, that the
Civil Courts were precluded by the provisions
of s. 95 of Act XVIII of 1873 from taking cogniz-
ance'^of a claim to obtain possession of a tenant-
holding based on the averment that the zamindar,.
the real defendant, had sanctioned a mortgage of
the holding to the plaintiff, and appropriated the
mortgage-money in satisfaction of arrears of
rent due by the tenant, the mortgagor and pro
formd defendant, and that, having placed the plaint-
iff into possession, he had subsequently wrong-
fullv dispossessed him. Muazzim Am Khan v.
Sheo Parshad . . . 7 N. W. 259

59. ...^ Suit to recover sir land

frorti person having no right to possession
—N.-W- P. Bent Act {XVIII of 1873), s. 95.
Held, that the Civil Courts were not precluded
by the provisions of s. 95 of Act XVIII of 1873
from taking cognizance of a suit to recover posses-
sion of sir land, brought on the allegation that the
defendants had without any right taken possession
of it. There was no question under s. 10 of the Act
which needed to be determined, but only the ques-
tion whether the defendants took possession of the

6137

DIGEST OF CASES.

( (5138 )

JITRISDICTION OF CIVIL COURT

26. RENT AND REVENUE SUITS— confci.

land in dispute, with or without right, a.^ trespassers
or as tenants. Ghisa v. Didari 7 N. W. 257

60. Suit for ejectment of per-

son wrongfully in possession as tenant—
N.-W. P. Rent Act {XVIII of 1873), s. 96.
Held, in accordance with the opinion of Turner,
Spankie, and Oldfield, JJ. (Stuart, C.J., and
Pearson. J., dissenting), that the Civil Courts were
not precluded by the provisions of s. 95 of Act
XVI II of 1873 from disposing, after the passing of
the Act, of a suit which was instituted in the Court
of first instance before the passing thereof, in which
the main matter in dispute was whether the plaint-
iff was entitled to eject the defendants from their
holding on the ground of their not having a right
of occupancy, and retaining possession of the hold-
ing -nTongfuUy after the expiry of the term of the
lease granted" to their father. Radha Parshad
Singh v. Balmukand Odja . 7 N. W. 318

ei.

Suit for perpetual injunc-

tion to restrain ejectment of tenant — Act

XII of ISSI—X.-W. P. Rent Ad, s. 9.5~SperAfic
Relief Ad (I of 1877), s. 56 (b) and (/). A ten-
ant, on whom a notice of ejectment had been
served under the N.-W. P. Rent Act, 1881, and
whose suit to contest his liabiUty to ejectment,
brought under that Act, had failed, sued in the
Civil Court for a perpetual injunction to prevent his
ejectment, basing his suit on an agreement t!iat he
should not be ejected so long as he paid a certain
rent : Held, that the suit was not maintainable, the
jurisdiction of the Civil Court being excluded by
s. 95 of the Rent Act and by s. 56 (6) and (/) of the
Specific Relief Act. Mahip Singh v. Chotu

I. L. R. 5 All. 429

62.

Suit by landlord to deter-

mine nature of tenant's tenure— A. -IF. P.

Rent Ad (XII of 1881), s. 95 [a). The cognizance
by the Civil Courts of a suit by a landholder for a
declaration that a tenant is not a tenant at fixed
rates, or an occupancy-tenant, but a tenant-at-
will, is barred by the provisions of s. 95 (a) of the
N.-W. P. Rent Act, 1881. Maharaja of Benares
V. Angan . . . I. L. R. 7 All. 112

63. Suit for declaration of

proprietary right to land—Suit for a decla-
ration that tenant is a tenant-at-icill and liable to
have his rent enhanced at will — Ad XII of 1881 [N.-
W. P. Rent Act), s. 95, (a) and (I). A suit for a de-
claration that the plaintiffs are the proprietors of a
village, and the defendants are tenants thereof at
the will of the plaintiffs and liable to have the rent
enhanced at the will of the plaintiffs, is, as regards
Ihe claim for a declaration of right, cognizable in the
Civil Courts, but not as regards the other claims,
such claims raising questions under s. 10 and s. 95
(a) and {I), N.-W. P. Rent Act, 1881, exclusively

JURISDICTION" OF CIVIL COURT—

contd.

26. RENT AND REVENUE SVlTS—contd.
(c) North-Western Provinces— co»«<Z.

cognizable in the Revenue Court. Antu v.
Ghulam Muhammad Khan I. L. R. 6 All. 110

64. Suit to recover under grant

of land rent-free— A. -IF. P. Rent Ad (XVIII
of 1873), s. 95 (c)— A'.-TF. P. Lajid Revenue Act
{XIX of 1873), ss. 79, 241— Jurisdiction of
Revenue Court. The plaintiff claimed the posses-
sion of certain land by virtue of a grant thereof to
him, not merely of the proprietar}'^ right in such
land, but of the rents of the same undiminished by
the payment of the revenue assessed thereon which
the grantor took upon himself to pay : Held per
Stuart, C. J., Pearson, ./., and Spankie, J., that
the suit was cognizable by the Civil Courts. Jagan
Nath Panday v. Prag Sin-gh

I. L. R. 2 All. 545

65.

Suit for damages for use

and occupation of land— A.- IF. P'. Re?it Act
XII of 1881), s. 95 (l)^Landholder and tenant —
Sir land — Ddertnination of rent of ex- proprietary
tenant. A co-sharer, in whose mehal, assigned on
partition, sir land belonging to another co-sharer
had been included, without having applied to the
Revenue Court to have the rent of the latter in
respect of such sir land determined under s. 95 (l)
of Act XII of 1881, sued the latter in the Civil Court
for damages for the use and occupation of such sir
land " without obtaining a lease or having the rent
fixed :"' Held, following the principle laid down in
S. A. No. 914 of 1879, that such suit was not main-
tainable. Ram Prasad Rai v. Dina Kuar

I. L. R. 4 All. 515

66. Suit against an

evicted tenant for damages for itse ami occupation.
If a landholder wishes to get rent from a tenant of
his agricultural land, he must, during the continu-
ance of the tenancy, either come to an agreement
with the tenant as to the rent to be paid or get the
rent fixed by means of an application under Act
XII of 1881. If no rent has been fixed, the land-
holder cannot, after the determination of the ten-
ancy, sue his quondam tenant in a Civil Court for
damages for the use and occupation of the land.
Ram Prasad v. Dina Kuar, I. L. R. 4. All. 515;
Radha Prasad Singh v. Jugal Das, I. L. R. 9 All.
185 ; and Dehi Singh v. Jhanna Kuar, I. L. R. 16
All. 209, referred to. Brijbawan Singh v. Medhi
Ali, All. Weekly Note-^ (1887), 140 ; and Ranfil
Singh V. Ditcan Singh, All. Weekly Notes (1889),
175, overruled. Debi Singh v. Muhammad
Ismail Khan . I, L. R. 20 All. 296

67. iMndholder and

tenant — Ex-profyrietary tenant — Rent Act XII of
1881 (N.-W. P. Rent Act), ss. 95 (I), 216. T,
who had acquired the proprietary riglats of Z) in a
certain mehal, sued D in a Civil Court for damages
for the use and occupation of sir land of which D, on

( 6139 )

DIGEST OF CASES.

( fil40 )

JURISDICTION OF CIVIL COUKT—
contd.

26. RENT A>^D REVENUE SUITS— conirf.

losing such rights, had become by law the ex-
proprietary tenant : — Held, that, T being D's land-
lord, such suit was not maintainable in the Civil
Courts. Earn Prasad Rai v. Dina Kuar, I. L. R.
4 All. 515 ; S. A. No. 768 of 1881 ; and S. A. No.
914 of 1879, followed : Held, also, that the provi-
sions of s. 200 of the N.-W. P. Pvcnt Act were not
applicable, it not being possible to treat the suit as
being in any resj^ect the claim that alone T was
entitled to make on D, which was a claim for rent
assessed or ascertained in the mode provided in
that Act. Dhian Rai v. Thakur Rai

I. L. E. 5 All. 25

68. Suit for money wrongly

collected as rent — Lease of zamindari rights —
Wrongful dispossession — Lessor and lessee — Suit
for compensaticn—N.-W. P. Rent Act (XVIII of
1873), s. 95, cl. (m). A granted B a lease of his
zamindari rights in certain villages for a term of
years at a fixed annual rent. Two years before
the term expired, in bieach of the conditions of
the lease, he dispossessed B, and thereafter made
Collections of rent from the agricultural tenants
himseK. B sued him in the Civil Court to recover
the money so collected by him in those two years.
Held (by a majority of the Full Bench), that the
Courts of Revenue were open to B, and that, as he
could obtain in such a Court the relief he sought
;n the suit by an application for compensation for
wrongful dispossession, the Civil Courts could not,
under cl. (m), s. 95 of Act XVIII of 1873, take
cognizance of the suit. Per Stuart, C. </., and
Spankie, /. — That as the matter was not one on
which B could make an apphcation to a Revenue
Court of the nature mentioned in cl. (m), s. 95 of
Act XVIII of 1873, the suit was properly instituted
in the Civil Court. Abdul Aziz v. Waxi Khan

I. li. K. 1 All. 338

69. Suit to recover alleged

excess payments in respect of irrigation
dues— iV.- If. P. Land Revenue Act {XIX of 1873),
s. 241 (i) — Northern India Canal and Drainage Act
( VII of 1873). s. 45. Held, that no suit would he
in a Civil Court to recover payments alleged to have
been made in respect of irrigation dues in excess of
what was properly leviable on the plaintiff. Bal-
want Singh r. Secretary of State for India

I. L. B. 22 All. 139

70. Suit for possession of

land and for mesne profits— A. -If .P. Rent Act
(XVIII of 1873), s. 95, els. (m) and (n)— Re-
venue Court, jurisdiction of. T, the occupancy-
tenant of certain lands, gave K a lease of his occu-
pancy-rights for a term of twenty years. In the
execution of a decree for the ejectment of T from
such lands obtained by the landholder against T
in a suit to which K was no party, K was ejected
from such lands. This decree %vas subsequently

JtmiSDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— conW.

set aside, and T recovered the occupancy of such
lands : Held, in a suit by K against T and the land-
holder, in which K claimed the occupancy of the
lands and mesne profits for the period during his
dispossession, in virtue of the lease, that the suit
was cognizable in the Civil Courts, and not one on
the subject-matter of which an application of the
nature mentioned in s. 95 of Act XVIII of 1873
could have been made, so as to give the Courts of
Revenue exclusive jurisdiction in such matter.
Kalian Das v. Tika Ram I. L. R. 2 All. 137

71.

Suit for compensation for

wrongful dispossession— iV^.- If. P. Rent Act,
1873, s. 95, els. (m) and (n) — Wrongful dispossession
of land. In an estate held by 5! as a sub-proprietoB-
he held certain land with a right of occupancy.
G, the zamindar, obtained a decree against *S in a
Civil Court for the possession of the estate, in exe.
cution of which he ousted S from the estate includ-
ing the land held by him with a right of occupancy.'
This decree having been set aside, S recovered the
possession of the estate including such land, and
sued G in the Civil Court for the value of the crops
standing on such land at the time he was ousted
from it by G, and for the rents of a portion of such
land which G had let to tenants while in possession
of it. Held, that the suit was cognizable by the
Civil Courts, and that G was liable for such rents.
Sawai Ram v. Gir Prasad Singh

I. L. R. 2 All. 707

72. N.-W. P. Rent

Act {XII of 1881), ss. 3*1 and 95, els. (m) and {n)—
Dispossession by process of law — Suit to recover
damages for such dispossession. The eipressions
"wrongful dispossession " in cl. (m) and " wTong-
fully dispossessed " in cl. (n) of s. 95 of Act XII of
1881 do not include a dispossession by order of
Couit, though such order may be subsequently re-
versed on appeal. Where therefore a tenant who
is evicted under s. 36 and the following sections of
the Rent Act, but afterwards reinstated by order
of a superior court of revenue, sues the evicting
zamindar for damages, such a suit may be brought
in a Civil Court. Sawai Ram v. Gir Prasad Singh.
I. L. R. 2 All. 707 ; and Dhundu Bhagnt v. Lai
Pande, 1 Leg. Rem. R. and R. 183, referred to.
Thakur Din v. Mannu Lal

I. L. R. 19 All. 456

73. ■ Suit for declaration of

right to re-formed land — Landlord and tenant
— Sxihmergencc of oecupancy-tenanfs land — Dilu-
vion — Liability for rent — Resumption by landholder
—Custom— N.-W. P. Rent Act {XII of 1881), s. 95»
cl. {ji). A landholder, alleging that by local custom
when land was submerged, and the tenant ceased
to pay rent for the same, his right to it abated, and
when the land re-appeared the landholder was
entitled to possession thereof ; that certain land be-

( 6141 )

DIGEST OF CASES.

( 0142 )

JUHISDICTIOW OF CIVIL COURT— JURISDICTION OF CIVIL COURT-

ccnkl. conid.

26. RENT AND REVENUE SUITS— cowW- j

longing to him had been submerged, and the occu-
pancy-tenant thereof had ceased to pay rent for it ;
and that such land had re-appeared and had come
into his possession under such custom, sued such
tenant in the Civil Court for a declaratoin of his
ri;j;ht to the possession of it : Held, that the suit, j
even if maintainable, was not, with reference to the
provisions of s. 95, cl. (n), of Act XII of 1881, cog-
nizable in the Civil Courts. Kupil Rai v. Radha
Pkasad . . . I. L. R. 5 All. 260

74. Suit for recovery of land

of which tenant has been dispossessed —

Relation of laiidlord and tenant admitted — Act XII
of 1881, s. 95, cl. [n). A landholder served a notice
of ejectment on G, under the provisions of s. 36 of t
the Rent Act (N.-W. P.), as a tenant-at-will.
Under the provisions of s. 39 of the Act, G contested
his liabilitj' to be ejected on the ground that he was
not a tenant-at-will, V)ut one holding by virtue of an
agreement executed in his favour by the landholder.
Tlie question of G's liability to be ejected was
decided adversely to him, and he was ejected under
s. 40 of the Act. He subsequently sued the land- i
holder in the Civil Court for possession of the land,
by virtue of the agreement, alleging that his eject-
ment was a breach of such agreement. The land-
holder's defence to th's suit was that G had been
rightfully ejected : Held, that, inasmuch as the
relation of landlord and tenant between the parties
at the time of the proceedings under the Rent Act
.'.as admitted, and the dispute in the suit could \
appropriately form the subject of an application I
under cl. [n) of s. 95 of that Act, the suit was not \
cognizable in the Civil Courts. Muhammad Abu I
Jafar v. Wali Muhammad, 1. L. E. 3 All. 81 ; '
Sukhdaik Misr v. Karim Chaudhri, I. L. B. S All.
521 : Kanahia v. Bam Khishen, I. L. B. 2 All. 429
distinguished. Shimbhu Narain Singh v. Bachcha,
L L. B. 2 All. 20fl referred to. Ganga Ram v.
Beni Ram . . , I. L. R. 7 All. 148

75. • N.-W. P. Bent

Act, ss. 93, 95, els., (m), (n) — Landholder and tenant
— Jurisdiction of Bevenue Court. No suit ^^•ill lie
against a landlord in a Civil Court for the MTongfuI
dispossession of a tenant from a holding to which
Act XII of 1881 applies. Where a plaint in a Civil
Court alleges facts which, if true, would show that
the dispute or matter involved in the suit was one
to which s. 93 or s. 95 of Act XII of 1881 would ap-
plj', the plaint should be rejected under cl.(c) of s. 54
of the Code of Civil Procedure, or possibly in some
cases returned under s. 57 of the same Code. The
plaintiffs, alleging themselves to be occupancj'-
tenants and to have been wrongfullj^ dispossessed
by their landlords, who had made a lea.se of the
land in suit sued the landlords and the lessees of
such landlords for recovery of possession and for
damages : Held, that such .'uit was not cognizable

26. RENT AND REVENUE SXHTS— con^.

by a Civil Court, but was exclusively cognizable by a
Court of revenue. Shimbhu Narain Singh v. Bachcha,
I. L. B. 2 All. 200, approved. Tarapat 0.iha v.
Ram Ratan Kuar . I. L. R. 15 All. 387

76. Suit for declaration of

right as tenant — Lavdholder and tenant — L)e-
chiratonj decree — Act XII of 18S1, s. 95, cl. (n). A
suit in Mhich the plaintiff claims, as the tenant of
land, that he may be declared to be the tenant, and
that the defendant, the landholder, may be re-
strained from interfering ^^ith his right to the land
as a tenant, and in which the defendant denies the
relation bet\\een him and the plaintiff of landho'der
and tenant, is not a suit which is exclusively co.^-
nizable in the Revenue Court. Shkodisht Naratx
Singh v. Rame.shar Dial I. L. R. 7 All. 188

77. Suit for rent where the

right to receive it is disputed — N.-W. /'.
Bent Act {XII of 1881), s. 118— Landholder and
tenant — Third person. In a suit for rent between a
landholder and a tenant under the N.-W. P. Rtnt
Act, 1881, where the right to receive rent is disputed
any rights which the landholder may have,
against the third person, v,\io has been made a
party to the suit, under s. 148 of the Act, can only
be enforced through the medium of the Civil Couit
by a suit for declaration of title and for recovery of
anj;- rents improperly collected bj' such person :
Held, therefore, where in such a suit it was found
that the third person had actuaFy and in^good faith
received the rent sued for, the claim should not
have been decreed against him, but should hr.\o
been dismissed. Madho Prasad v. Am bar

I. L. R. 5 All. 503

78.

Act, 1881, s.

N.-W. P. Bint

148 — Landholder and tenant— Third
person who has received rent made party — Jurisdic-
tio7i of Bent Court to pass decree for rent against -nch
party — Question of title. In a suit by a landhoMir
for recovery of rent in which a third person allcLod
to have received such rent is made a party untler
s. 148 of the N.-W. P. Rent Act (XII of 1881), the
question of title to receive the rent cannot be
determined between the plaintiff and such peison,
but can only be litigated and determined in a siib-
sequent suit in the Civil Court. The only question
between the plaintiff and the person so made a
party which can be determined in the Rent Court
under s. 148 is the actual receipt and enjoyment of
the rent. A party who is brought in under s. 148 of
the Rent Act cannot be made subject to the decree
for rent so as to allow execution to be taken out
against him, whether his botd fide receipt and en-
joyment of the rent is proved or not. The only
person against vhom such a decree can be passed
is the tenant. Madho Prasad v. Atnbar, I. L. B.
5 All. 502, referred to. Per Edge, C.J., sendjh\
that the intention of the Legislature in allowing a

( 6143 )

DIGEST OF CASES.

( 6144

JTJHISDICTION OF CIVIL COUBT—

contd.

26. RENT AND REVENUE SUITS— cowfd.
(c) Noeth-Westebn Provinces — contd.

third person who claims under s. 148 of the Rent
Act to be made a. party to the suit may possibly
have been that, by bringing him in, he may be
bound by a declaration in the suit that he had in
fact received the rent, so as to prevent him in the
civU suit from denying the fact that he had received
it. In a suit by landholder for recovery of rent, the
<lefendants pleaded that they had paid the rent to
a co-sharer of the plaintiff. "^The co-sharer made a
deposition in ^^•hich he alleged that he was entitled
to the rent not only as a co-sharer, but also as
appointed agent of the plaintiff. The Court there-
upon made him a party to the suit under s. 148 of
the Rent Act, and passed a joint decree against him
and the tenant for rent : Held, that the Court was
justified in making him a party under s. 148 of the
Rent Act, but was not competent to pass a decree
for rent against him. Gobini) Ram v. Nauain Das
I. L. R. 9 All. 394

79. Occupancy-tenant — Suit by

landholder against successor of occupancy-tenant
for arrears of rent which accrued during the
lifetime of his predecessors — Act XII of 1881
(N.-W. P. Bent Act), ss. 9, 33, d. (a), 112 A, 161.
A suit against an occupancy-tenant in posses-
sion who has accepted the occupancy-holding, for
arrears of rent not barred by limitation which
accrued in the lifetime of the person from whom the
right of occupancy has devolved upon him, is not
cognizable by the Civil Court, but is exclusively
cognizable by a Court of Revenue. So held by the
Full Bench, Mahmood, J., dissenting. The follow-
ing cases were referred to : — Jyeperkash v. Shew-
purshad, 1 N.-W. P. S. D. A. {1864) 230; Mata
Been Doohey v. Chundee Deen Doohey, 6 N.-W.
118 ; Mata Been v. Chundee Deen, 2 N.-W. 54 ;
Wazir Mulmmmad v. Amanat Khan, All. Weekly
Notes {1883), 172 ; Bhikhan Khan v. P.atan Kuar,
I. L R. 1 All. 512 ; Ahmud-ud-din Khan v. Majlis
Rai, I. L. R. 5 All. 438 ; Ashootosh Chuckerhutty
V. .Baneemadhuh Mocker jee, 1 Rev. Civ. and Cr.
Rep. 26 ; Benod Behary Mookhopadhaya v. Beer
Narain Roy, 1 Rev. Civ. and Cr. Rep. 46 ; Hossein
Ali Beg. v. Ashruff Ali Beg, N.-W. P. S. D. A.
{1865) 221 ; Gopal Pandey v. Parsotam Das ,_
I. L. R. 5 All. 121 ; Mahadeo Singh v. Bachu
Singh, I. L. R. 11 All. 224 ; and Waris Ali v.
Muhammad Ismail, I. L. R. 8 All. 552. Lekheaj
Singh v. Rai Singh . I. L. R. 14 All. 381

80. — Suit for contribution

among pattidars for Government revenue.
— Revenue Court — N.-W. P. Land Revenue Act {XIX
of 1873). The question in the case was
whether the plaintiff, a pattidar who had paid a
fium on account of a demand for Government
revenue, should sue to recover from the defendants
his co-pattidars, the balance in excess of his own
quota in the Civil or in the Revenue Court : — Held,
(Spakkie, J., dissenting), that the Civil Courts were

JURISDICTION OF CIVIL COURT—

C07ltd-

26. RENT AND REVENUE SUITS— co7iW.

(c) North-Westeen Provinces — contd,
competent to entertain suits of the nature. Per
Spankie, J., contra. Ram Dial v. Golab Singh
I. L. R. 1 All. 26

81. Suit for determination of

rights — Record-of -rights, entries in — N.-W. P.
Land Revenue Act {XIX of 1873), ss. 62, 91, 94,
'iXl — Jurisdiction of Revenue Courts. The Civil
Courts are not competent to try suits to alter or
amend a record-of-rights, or to give directions in
respect of the same, but they are not debarred from
entertaining and determining questions of right,
merely because such questions have been the
subject of entries in the record-of-rights, and be-
cause such determination may show that such
entries are wrong and need correction. Conse-
quently, a claim in the Civil Court for a declaration
of the right to make certain collections of rent and
to defray therewith certain village expenses, though
such right had been the subject of an entry in the
record-of-rights adverse to the person claiming
such right, was held to be maintainable. Sundar
V. Khtjman Singh . I. L. E. 1 All. 614

82. Suit for declaration of

right to zamindari cesses— iV.- IF. P. Land
Revenue Act {XIX of 1873), s. 66.~Beng. Reg. VII
of 1822, s, 9. cl., {i). Notwithstanding that zamin-
dari cesses cannot be collected until recognized
and sanctioned by the settlement authorities, there
is nothing in Regulation VII of 1822, or Act XIX
of 1873, to preclude a Civil Court from taking cog-
nizance of suits seeking a declaration of zamindari
rights to such cesses. Akbar Khan. v. Sheoratan
I. L. R. 1 All. 373

83.

Suit for ejectment — Act

XII of 1881 {North- Western Provinces Rent Act),
ss. 93. 97 — Jurisdiction — Civil and Revenue Courts
— Suit to eject as a trespasser a person who claimed to
he entitled to succeed to the holding of a deceased occu-
pancy tenant. Upon the death of an occupancy
tenant, a person who alleged that he was entitled to
succeed the deceased in his holding obtained muta-
tion of names in his favour, and also got possession
of the holding. The zamindars thereupon brought
a suit in the Civil Court for ejectment of such
person, as a trespasser who had no right whatever
to succeed to the holding of the late occujoancy-
tenant : Held, that such a suit was properly brought
in a Civil Court, and could not have been instituted
in a Court of Revenue ; and, further, that the
decision of the, Court of Revenue allowing muta-
tion of names in the defendant's favour could not
operate as res judicata in respect of the present
suit. Subarni v. Bhagwan Khan, I. L. R. 19 All.
101, distinguished. Shco Narain Bai v. Purmeshar
Rai, I. L. R. IS All. 270 ; Dukhna Kuar v.
Unkar Pande, I. L. R. 19 All. 452 : and Kaliani
V. Dassu Pande, I. L. R. 20 All. 520, referred to.
BaRU MaL v. NiADAR (1901)

I. L. R. 23 All. 360

( 6145 )

DIGEST OP CASES.

( 6146 )

JURISDICTION OF CIVIL COURT-

contd.

26. RENT AND REVENUE SUITS— co»fef.
(c) NoBTH -Western Provincbs — contd.

84.

Act XII of 1881

(North-Western Provinces Rent Act), ss. 93, 9-5 —
Act XIX of 1873 [North- Western Provinces Land
Revenue Act), s. 102— Jurisdiction — Civil and Re-
venue Courts — Suit to eject as a trespasser a person
who claimed to he entitled to the holding of a deceased
occupancy tenant — Res judicata. Upon the death
of an occupancy-tenant, a person, who alleged that
he was entitled to succeed to the deceased's occu-
pancy holding, obtained from the revenue authori-
ties, by means of an application under s. 102 of the
North-Western Provinces Land Revenue Act, muta-
tion of names in his favour and also got into posses-
sion of the holding. The zamindars thereupon
brought a suit in a Civil Court for his ejectment, on
the allegation that he was a mere trespasser, who
had no right whatever to succeed to the holdiig of
their late occupancy tenant : Held, that such suit
was properly brought in a Civil Court, and could
not have been instituted in a Court of Revenue,
and the decision of the Revenue authorities allow-
ing mutation of names in the defendant's favour
could not ojjerate as res judicata in respect of such
suit. Subarjii v. Bhagioan Khan, I. L. R. 19 All.
101, distinguished. Niadar v. Baru Mal (1001)
I. L. R. 24 All. 153

85.

Suit to enforce cess —

N.-W. P. Lund Revenue Act (XIX of 1873), s. 66.
A cess leviable in accordance with xnllage custom
which is not recorded imder the general or special
sanction of the Local fiovernnient cannot, under
s. 66 of Act XIX of 1873, be enforced in a ttvil
Court. Lala v. Hira Singh I. L. R. 2 All. 49

Suit to dispute partition

by Revenue Court — Question of projirietary
right decided by Revenue Court under Act XIX of
1873 (N.-W. P. Land Revenue Act), s. 133^0mis-
sion by Revenue Court to frame decree — Decision of
Revenue Coztrt not open to attack by suit in Civil
Court. A Revenue Court acting under the provi-
sions of ss. 112 and 113 of the N.-W. P. Land
Revenue Act (XIX of 1873) recorded a proceeding
declaring the nature and extent of the respective
rights of the parties before the Court, and presciib-
ing the mode in which partition should be effected.
No decree was framed in accordance with this pro-
ceeding : Held, that, the proceeding of the Revenue
Court was a decision b}' a Court of competent
jurisdiction, and could not be interfered with by a
suit in the Civil Court disputing its correctness.
Bhola v. Rawdhin . I. L. R. 7 All. 894

See Ranjit Singh v. Ilahi Baesh

I. Ii. R. 5 All. 520

87.

Question of title arising

on an application for partition, how to be
determined.— iV.-TF. P. La7id Revenue Act (XIX
of 1873), s. 113. If a Revenue Court Jn disposing

JURISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SmTS— contd.

of an application for partition determines a ques-
tion of title, it must, in so doing, act in conformity
with the provisions of s. 113 of Act XIX of 1873.
If it disposes of the application otherwise than in
the manner contemplated by s. 113, its proceedings
are ultra vires, and will not debar the parties from
suing in a Civil Court for a declaration of their right
to partition. Nasratullah v. Mu.iib-fllah

I. L. R. 13 All. 309

88. Suit after partition on

reference to arbitration — Co-sharers in sir
land — Determination of rights. An agreement to
refer to arbitration the partition of a mehal provided
that, if sir land belonging to one co-sharer
were assigned to another co-sharer, the co-sharer to
whom the same belonged should surrender it to
the co-sharer to whom it might be assigned. The
arbitrator assigned certain sir land belonging to
the defendants in this suit to the plaintiffs. The
partition was concluded according to the terms of
the award. The defendants refused to surrender
such land to the plaintiffs. The plaintiffs distrained
the produce of such land, alleging that it was held
by certain persons as their tenants and arrears of
rent were due. The defendants thereupon sued
the plaintiffs and such persons in the Revenue
Court, claiming such produce as their own. The
Revenue Court held that such distress was illegal,
as such land was in the possession and cultivation
of the defendants as occupancy tenants under s. 125
of Act XIX of 1873. The plaintifis subsequently
sued the defendants in the Civil Court for posses-
sion of such land, basing such suit on the partition
proceedings : Held, that'the decision of the Revenue
Court did not debar the Civil Courts from deter-
mining the rights of the parties under the partition,
and such suit was cognizable in the Civil Courts.
Abhai Pande v. Bhagwan Panpey

I. L. R. 3 All. 818

89. Suit for possession—

Act XII of 1881 (North- Western Provinces Rent Act),
ss. 10, <>3, 9.-— -Act XIX of 1873 (North-Western
Provinces Land-revenue Act), s. 241 — Jurisdiction —
Civil and Revenue Courts — Suit by mortgagee from
occupancy-tenant far possessio7i of the mortgaged
property against occupancy-tenant and an alleged
trespasser, and for a declaration. The plaintiff was
the mortgagee from an occupancy tenant of some
.34 odd bighas of land. ^Vhen he attempted to
take possession of the land under his mortgage,
he was resisted by a tliird party, who was in pos-
session of about half of the land in question. The
plaintiff accordingly sued in a Civil Court for pos-
session of 17 bighas, 15 bisivas, 18 dhurs of land " by
virtue of the first defendant's right of occupancy
and his (the plaintiff's) right as mortgagee," and
also for a declaration that the second defendant had
' ' nothing to do with the land. ' ' Held, that the suit
was properly brought in a Civil Court, and that the

( 6147 )

DIGEST OF CASES.

( 6148 )

JUKISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— cowed.

Civil Court, was competent to grant the plaintiff a
decree for possession, though it could not grant him
the declaration asked for. Ajiidhia Rai v. Par-
meshar jRai, I. L. B. 18 All. 340 ; Subarni v.
Bhagwan KJoan, I. L. R. J9 All. 101 ; Dulcna
Kunioar v. Unkare Pande, I. L. R. 7.9 All. 452 ;
Kaliani v. Das.su Pande, I. L. R. 20 All. '"^20 ; and
Baru Mai v. Niadar, All. Weekly Notes, (1901).
l'>7, referred to. Padaratr v. Ram Ghulam
(1901) . . . I. L. R. 23 All. 481

90. Suit for possession of land

assigned on condition of sevvice— Resump-
tion and assessment of rent — N.-W. P. Land Revenue
Act {XIX of 1873), ss. 79 and 241. The plaintiffs
sued for possession of certain land in a village
alleging that it had been assigned to a predecessor
of the defendant to hold so long as he and his
successors continued to perform the duties of village
■watchmen, and that the defendant had ceased to
perform those duties and was holding as a trespasser.
The defendant alleged that he and bis predecessors
had held the land rent-free for 200 years, and that
he held it as a proprietor : Held, that the plaintiffs'
claim was not one to resume such a grant or to
assess rent on the land of which a Revenue Court
could take cognizance under ss. 30 and 95, cl. (c),
of Act XVIII of 1873, or ss. 79 and 241, cl. (h),
of Act XIX of 1873, but one which was cognizable
bv the Civil Courts. Puran Mal v. Padma

I. Ii. B.2 A11.732

91. Resumption of rent-ft'ee

grant— .4c« X72 o/ 1881, ss. 30, 95, cl. (c)—
Act XIX of 1873, s. 24 1, cl. {h). A zamindar brought
a suit to recover possession of certain land in the
village which was held by the defendants rent-free
in consideration of rendering services as khera -
patis on the ground that he was entitled as zamin-
dar to dispense with their services, and that there-
fore they no longer possessed any right to hold the
land. The claim was resisted by the khera-patis on
the ground that for many years they had been in
possession of the land as muafi-holders : Held, that
the dispute so raised w as a matter which could form
the subject of an application to resume a rent-free
grant within the meaning of s. 30 of the N.-W. P.
Rent Act (XII of 1881), and that the cognizance
of the suit by the Civil Court was therefore barred
by cl. (c) of s. 95 of that Act, and that for similar
reasons the Civil Court under cl. (h) of s. 241 of the
N.-W. P. Land Revenue Act (XIX of 1873) could
not exercise jurisdiction over the matter of the suit.
Tika Ram t>. Khuda Yar Khan

I. Ii. R. 3 All 191

92. Suit for possession of

rent-free and revenue-free tenures — Assess-
m'nt and settlement of revenue-free land — Act XIX
of 1873 [N.-W. P. Land Revenue Act), s. 241.
Certain land was settled with the defendants in this

JURISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— confi.
(c) North-Western Provinces — contd.

suit. The Settlement Officer having declared that
the plaintiffs in this suit had acquired a proprietary
right to such land under tlie provisions of s. 82
of Act XIX of 1873 and were entitled to hold it
rent-free, the defendants applied to the Settlement
Officer to assess such land and to settle it with the
plaintiffs as the per.sons in actual pos.session as pro-
prietors. This having been done by the settlement
officer, the plaintiffs sued the defendants to be main-
tained in possession of such land free of revenue,
and for the cancelment of the Settlement
Officer's order : Held, that, under s. 241 of Act XIX
of 1873, the suit was not cognizable in the Civil
Courts. Zalim Singh v. Ujagar Singh

I. L. R. 3 All. 367

93.

Suit for removal of trees

Act XII of 1881 (North-Wcatern Provinces
Rent Act), s. 93, els. (b), (c) and {cc)Suit by zamin-
dar against tenant for removal of trees planted by
tenant on tenant's holding — Jurisdiction — Civil
and Revenue Courts. The plaintiff alleged in his
plaint that he being the zamindar, and the defend-
ants being, respectively, tenant and sub-tenant, of
an agricultural holding, the defendants had without
his permission planted certain trees on the holding,
thereby committing an act detrimental to the land
and injurious to the plaintiff ; and he prayed for a
mandatory injunction directing the defendants to
remove the trees and to restore the land to its
original condition : Held, that the suit involved a
dispute or matter in which a suit of the nature
mentioned in s. 93 of Act XII of 1881 might have
been brought, aiad was therefore not cognizable by a
Civil Court. Raj Bahadur v. Birmha Singh, I. L.
R. 3 All. 85, dec\a.ved to be no longer in force.
Amrit Lai v. Balbir, I. L. R. 6 All. 68; Gangadhar
V. Zahurriya, I. L. R. 8 All. 446 ; and Prosonno
Mai Debi v. 3Iansa I. L. R. 9 All. 35, overruled.
Deodat Tiwari v. Gopi Misr, AIL Weekly Notes
( 1882), 102 ; Chet Rain v. Kokla, All. Weekly
Notes (1892), 4'> ; -And Jai Kishen v. Ram Lai,
I. L. R. 20 All- 519, referred to. KanhayaLal
v. HuRiYAN (1901) . I. L. R. 23 All. 486

94. Suit to recover excess

canal dues paid by mistake — Jurisdiction — Act
XIX of IS '>3 (North- Western Provinces Land-revenue
Act), S.24 1, cl. (i)—Act VIII of 1873 (Northern India
Canal and Drainage Act), s. 45~Claim arising out
of collection of revenue or for sum realizable as revenue.
A suit to recover canal dues alleged to have been
paid by mistake is a claim arising under s. 241,
cl. (i),oi the North-Western Provinces Land-revenuo
Act of 1873 ; and, under that provision, read with
s. 45 of the Northern India Canal and Drainage
Act, 1873, a Civil Court has no jurisdiction to enter-
tain it. The High Court was right in taking cog-
nizance of the point, though it was not pleaded and
not taken in either of the lower Courts. Balwant

( 6149 )

DIGEST OF CASES.

( 6150 )

JURISDICTION OF CIVIL COURT—

contd.

26. RENT AND REVENUE SUITS— co»<d.

Singh v. Secretary of State for India (1903)
I. L. R. 25 All. 527
s.c. L. R. 30 I. A. 172

95. Suit to set aside Collec-
tor's order for contribution — Malikaim — Oov-
ernment revenue. — N.-W. P. Land Revenue Act {Act
XIX of lSr3), 6. 241, cl. (b). At the settlement
of a certain village, a malikana allowance of 10 per
cent, on the revenue was reserved for C, the talukh-
dar to whom the village belonged. At the same
settlement, the miiafi-holding of A in the village
was resumed, and assessed to revenue ; but A re-
fused to engage for it, and it was therefore merged
for revenue purposes in the mehal of the village,
though still held by A. In 1872, A obtained in the
Civil Court a decree by which he was declared to be
the proprietor of his holding, and to be entitled
to engage for it separately ; and thereupon the Col-
lector constituted the holding a separate mehal
by causing a khewat to be prepared and fixing
the proportion of the revenue assessed upon the
entire mehal which the muafi-holding should bear.
Subsequently the zamindars of the village applied to
the Collector that A might be made to contribute
towards the payment of the malikana allowance of
the talukhdar. The Collector passed an order
declaring A to be liable to such contribution ; and
A then instituted a suit for cancelment of the
Collector's order, for a declaration of his non-
liability to contribute to the malikana allowance
of the talukhdar, and for a refund of contribution
already paid : Held, tliat, inasmuch as the decree
of the Civil Court in 1872 and the proceedings of
the Collector consequent thereon constituted the
muafi-holding a" mehal "in the terms of s. 3, Act
XlXof 1873, and by the terms of ss. 53-55 of the
same Act, a malikana allowance, such as that under
reference, is" revenue," and s. 241, cl. (6), bars the
jurisdiction of the Civil Courts in matters regarding
the amount of revenue to be a.ssessed on any mehal,
the suit was not cognizable by a Civil Court.
Gayadat v. Kutub-un-nissa I. ii. R. 6 All. 578

96. Suit for declaration of

non-liability of land to assessment of
revenue — Jurisdiction of Civil Court — Declara-
tory decree—Act XIX of 1873, s. 241. Th Civil
Courts are not debarred by s. 241 of Act XIX of
1873 (N.-W. R Land Revenue Act) from taking
cognizance of a suit for a declaration that land
which the revenue officers seek, under the pro-
visions of that Act, to assess to revenue, is included
' in an area which has already been permanently
i settled, and is therefore not liable to further assess-
j ment. Government v. Raj Kishen Sin-jh, 9 W. R.
427; Collector of Futtehpore v. Munglee Pershad,
N.-W. P. S. D. A. {18)4), 167 ; Raghu?iath Suhaee
V. Bishen Singh, N.-W. P. S. D. A. {1S55), 302 ;
Zoolfikur Ali v. Ohunsam Baree, N.-W. P. S. D. A.
[1865), 92 ; and Uppu Lakshmi Bhayamma Oaru

JURISDICTION OP CIVIL COURT—

Contd.

26. RENT AND REVENUE SUITS— conid.

V. Purvis, 2 Mad. 167, referred to. Secretary of
State for India v. Ram Ugrah Singh

I. L. R. 7 All. 140

97.

Suit to recover land

wrongly recorded at settlement— Par«!7(o/i of
mcJud—N.-W. P. Land Revenue Act {XIX of 1873),
s. 241, cl. (/). B, the recorded proprietor of a 7 bis-
was 10 biswansis share in a village, the recorded area
of which was 476 bighas and 5 "biswas, purchased a
16 biswansis and 3i kachwansis share in the same
village. In 1872, at the time of settlement, B was
recorded as the proprietor of an 8 biswas 6 biswansis
and 3^ kachwansis share, and the area of this was
recorded as 476 bighas and 5 biswas, that is to say,
the same area as was recorded before the purchase.
In 1876 H purchased 5's rights and interests
in the village, and in 1877 apphed for partition
of the share of which he had been recorded proprie-
tor, and the same was partitioned, an area of 476
bighas and 5 biswas being allotted to him. Subse-
quently he brought a suit against the proprietors of
the other estates into which the village had been
divided for 61 bighas 4 biswas and 8 biswansis of
land, alleging that, at the settlement of 1872, the
area of B's rights and interests had been erroneously
recorded as only 476 bighas and 5 biswas : Held,
that the suit would not lie in the Civil Court, being
barred by the provisions of s 241, cl. (/), of the
N.-W. P. Land Revenue Act (XIX of 1873).
HABIB0LLAH V. KtJNJi Mal I. L. R. 7 All. 447

98_ , Suit to question legality

of settlement by Coilestor—Aimnlin'iit oj
settlement— Fre-sh setthmciit—Act XIX of 1873
S.241. Asettlement of land belongnig to (? and
which he had mortgaged having been annulled>mder
s. 158 of the N.-W. P. Land Revenue Act (XIX
of 1873), the land was farmed by the Collector of the
I district under s. 159. The revenue having fallen
into arrears, the Collector, under the same section,
took the land under his own management. Subse-
quently, under ss. 165 and 43 of the Act, the land
I was settled with G's wife. In a suit to enforce
I acrainsc the lands a mortgage executed by 0 to the
I pTaintid -.—Held, that the Court was precluded by
I the terms of s. 241, cl. (/), of the Revenue Act from
entering into the question whether the settlement
was leo-Illy made by the Collector with the wife of
the mort<Tagor, that she must therefore be taken to
represent°such rights and interests as the mortgagor
posses=!ed, and that consequently the estate was
liable in her hands for the mortgage, and the
mortcra^ee was entitled to claim foreclosure against
her. BAR! BABi. . Golab Cha^ho ^ ^ ^ ^^^ ^^^

gg Suit to resume a rent-free

erant^Wce^— -V.-ir. P. Rent Act {XII of 1881),
7s. 3 {2), 30,95, cl (c)^N.-W. P. Lani Revenue

9k 2

( 6151 )

DIGEST OP CASES.

( 6152 )

JURISDICTION

contd.

or CIVIL cotmT-

26. RENT AND REVENUE SUITS— contrf.

Act {XIX of 1873), ss. 3(4), 79-89. 241, cl (h)—
Beng. Regs. VIII of 1793, s. 41, and XIX of 1793,
s. 10. A suit was brought for the ejectment of the
defendant from certain land, on the allegations
that it was rent-paying land which had been
granted to the defendant's vendor by the plaintiff's
father free from payment of any rent, on condition
that he should perform certain services as a mimic,
and that these services were discontinued by the
defendant's vendor. The plaintiff endeavoured to
resume the land in the Revenue Court as a rent free
grant under s. 30 of the N.-W. P. Rent Act (XII of
1881), but the application was rejected. In answer
to the suit, the defendant pleaded that it was not
cognizable by the Civil Court : Held, by Oldfield,
J. (Mahmood, J., dissenting), that the suit could not
be held to be one to resume a rent-free grant, inas-
much as there was no rent-free grant at all in the
sense of s. 30 of the Rent Act, and that the Civil
Court therefore had jurisdiction to entertain the
suit: Held, by Mahmood, J., that the land con-
stituted a rent-free grant, that the claim was one for
the resumption of such grant or subjecting it to
assessment to rent, and that under these circum-
stances the suit was not cognizable by the Civil Court.
Per Old FIELD, J. — The definition of the term " rent"
in s. 3 of the Rent x\ct was intended to include
services or labour rendered for the use of land,
and the grantee in the present case was a tenant
who rendered rent in this sense on account of
the use of the land. Further, there was no such
grant as is contemplated by s. 30 of the Rent Act,
inasmuch as that section refers to grants for holding
land exempt from the payment of rent alluded to in
s. 10 of Regulation XIX of 1793, and that Regula-
tion, assuming it to refer to grants free from pay-
ment of rent as well as of revenue, contemplated
grants not only free from payment of rent in cash or
kind, but free from payment of anjiihing in lieu
thereof. A tenure such as in the present case, where
the land was land originally paying rent in cash, and
where the cash rent was exchanged for rendition of
services, is not a rent-free grant within the meaning
of the Regulation, nor consequently of s. 30 of the
Rent Act. Mutty Lall Sen Gijwal v. Deshkar Roy,
B. L. R. Sup. Vol. 774 : 9 W. R. 1, and Puran Mai
V. Padma, I. L. R. 2 All. 732, referred to. Per
Maiimood, J. — The services connected with the
grant in this case did not constitute ' ' rent ' ' within
the meaning either of the N.-W. P. Rent Act or
of the N.-W. P. Land Revenue Act (XIX of 1873),
and the word ' ' render " in s. 3 of the former Act
does not include or imply the rendering of services
or labour. The word "rent" is probably used
as the ecjuivalent of the Hindustani words lagan
or poth representing the compensation receivable by
the landlord for letting the land to a cultivator, and
s. 3 of the Rent Act, where it uses the expressions
"paid, delivered, or rendered," must be taken to

JURISDICTION OF CIVIL COURT

contd.

26. RENT AND REVENUE SUITS— conc?d

refer respectively to rent paid in cash, to re
delivered in kind, and to rent rendered by apprais
ment or valuation of the produce. The grant in t
present case was a rent-free grant of the nature
chakran or chakri, i.e., service tenure, to which s.
of the Regulation VIII of 1793 related. T
incidents of the tenure would be governed by s. 30
the Rent Act and ss. 79-84 of the Land Revenue Ai
being matters outside the jurisdiction of the Ci
Court. The scope of s. 10 of Regulation XIX
1793 is not hmited to permanent rent-free gran
and the present suit was in respect of a mati
falling within s. 95, cl. (c), of the Rent Act, ai
" provided for in ss. 79 to 89, both inclusive," of t
Land Revenue Act, within the meaning of s. 2^
cl. [h), of the latter Act. Puran Mai v. Podn
I. L. R. 2 All. 732 ; Tika Ram v. Khuda Jar Kho
I. L. R. 7 All. 191 ; and Forbes v. 3Ieer Mahom
Tuquee, 13 Moo. I. A. 438, referred to. Wai

AlI v. MUHAIVIMAD ISMAIL . I. L. R. 8 All. 5'

[d) OUDE.

100. Suit for partition and a

count of talukhdari estate — Oude Rent A
(XIX of 1868), s. 88, cl. U, s. 106. In a suit coi
menced in 1865 by a member of a joint family for t:
declaration of his rights in a talukhdari estate, par
tion not being claimed, the order of Her Majesty
Council (1879) directed that the talukhdar shou
cause and allow the villages forming the talukhds
estate and the proceeds thereof to be managed ai
applied according to the trust declared in favo
of the members of the family. The plaintiff in th
suit afterwards obtained entry of his name as
co-sharer in the villages in the register kept und
Act XVII of 1876, s. 56, and then brought the fii
of the present suits for his share upon partitio
both in that estate as it stood in 1865 and also -wi
the addition of villages since acquired out of pr
fits claiming an account against the talukhdar. Tl
latter alleged, among other defences, that t
talukhdari estate was impartible, and brought
' cross-suit to establish this, and also that it was he
by him according to the rule of primogeniture, t]
right of other members of the family being only
the profits : Held, that the provisions of the Ouc
Rent Act (XIX of 1868), s. 83, cl. 15, and s. 10
precluding proceedings in the Civil Court, might 1
applicable to the proceeds of the villages formh
the original estate, the claimant having be(
recorded in the revenue records as a sharehold
therein, but could not be applied to the rest of tl
joint estate, and the Civil Court therefore ha
jurisdiction. Pirthi Pal v. Jowahir Singh

I. L. R. 14 Calc. 4S
L, R. 14 I. A. a

( 6153 )

DIGEST OF CASES.

( 6154 )

JURISDICTION OF CIVIL COURT-

contcl.

27. REVENUE.

1. Suit to try liability to

public revenue on \&nd— Wrongful acts by
executive officer of Government. The Civil Courts
have jurisdiction to entertain suits brought to try
questions of liabihty to the public revenue assessed
upon land. Where a suit is brought for alleged
wrongful acts by an executive officer of Government,
the circumstance that the acts complained of were
done in enforcing payment of a revenue assessment
sanctioned by Government does not, per se, preclude
the jurisdiction of the Court to entertain the suit.
But acts done by Government through its executive
oflScers, not contrary to any existing right according
to the laws administered by the Municipal Courts,
although they may amount to grievances, would
afford no cause of action cognizable by the Civil
Courts. Uppu Lakshmi Bhayamma Garu v. Pur.
VIS 2 Mad. 167

2. Suit against oflacers of

sea-customs for act done without jurisdie-
tioTi^Revenue, matter concerning — 53 Geo. Ill,
c. 155, ss. 99 and 100— Mad. Reg. IX of 1S03,
s. 55. Per Innes and Kernan, J J. (dissentient
THE Chief Justice)— The High Court of Madras
has jurisdiction to try original suits against revenue
officer for acts ultra vires done in theii- official capa-
city. The provision of the Letters Patent of the late
Supreme Court, whereby such suits were excepted
from the jurisdiction of the Supreme Court, has
not been continued by the Letters Patent of the
High Court so as to except such suits from the
original jurisdiction o[ the High Court, but has been
impliedly repealed by those Letters Patent. Per
Kersan. J. — The said provision was repealed by
59 Geo. Ill, c. 155, ss. 99 and 100, except as to land

irevenue. Per Innes, J. {contra). Per the Chief
Justice and Innes, J. — The District Court of
Chingleput continued down to the year 1876 to have
jurisdiction under Madras Regulation IX of 1803,
8. 55, in suit against customs officers at Madras.
Collector of Sea-Customs ?^. Chithambaram
I. L. R. 1 Mad. 89

3. Payment of bak in respect

of majumdari watan— iJom. Act VII of
1863, s. 32. The jjayment of a bak in respect of a
majumdari watan, though charged on villages, is

i not " a share of the revenues thereof " within the
meaning of s. 32 of (Bombay) Act MI of 1863, and
, therefore a suit to recover majumdari watans
j resumed by Government is cognizable by the C^vil
; Courts. Government of Bombay v. Damodhar
, P.\.BMANANDAs . . .5 Bom. A. C. 202

I 4. • . Land revenue —Toc/rf?/ spirit

—Bombay Revenue Jurisdiction Act {X of 1S76),
ss. 3, 4, 5— Bombay Abkari Act (V of 1S7S), ss. 24,
I 29, 54, arid 67 — Laiid Revenue Code (Bom. Act V of
1879), s. S2—Bom. Reg. XXI of 1S27, s. 60. The
plaintiff sued to recover from the defendant, a
farmer of abkai'i duties on the manufacture of
spirits, under s. 60 of Bombay Regulation XXI of
l817, a sum of money alleged to have been illegally

JURISDICTION OF CIVIL COURT—

C07itd.

27. REVENUE-concW.
levied by him as tax or rent through the mamlatdar
in respect of certain cocoanut trees tapped by the
plaintiff in 1877-78 and 1878-79: Held, that the
Civil Courts have jurisdiction to entertain such a
suit. If the claim be held to be one in respect of
land revenue, it falls within the exception contained
in cl. (c) of s. 5 of Act X of 1876. If it is not, s. 4
of the Act has no application. Per Birdwood, J. —
The expression ' ' land revenue ' ' as used in Act X
of 1876 does not include either the duties leviable,
under Regulation XXI of 1827, on the manufacture
of spirits, or the taxes on the tapping of toddy
trees, the levy of which in certain districts was
legalized by s. 24 of the Bombay Abkari Act (V
of 1878). A farmer of duties on the manufacture of
spirits is not authorized to levy a duty on any juice
in trees, either under Regulation XXI of 1827, or
Act X of 1876, or Bombay Act V of 1878. Juice
in toddy-prodvicing trees is not spirit, which includes
toddy in a fermented state only. Xarayan Venku
Kai.gutkab v. Sakharam Nagu Korko\umkar
I. L. R. 9 Bom. 462

5. Suit to recover possession

of land added to estate paying revenue
directly to Government— .-let IX of 1847,
sx. 6 and 9. No suit \\ill lie in a Civil Court to
recover possession of lands which have been added
to an estate paying revenue directly to Government
by the revenue authorities after an inspection of
maps under s. 6 of Act IX of 1847, although such
lands have reformed on an old site of land belonged
to another. Dewan Ramjewan Singh v. Collec-

TOE OF ShAHABAD

14 B. L. R. 221 note : 18 W. R. 64

Ram Jewan Sinuu r. Collector of Shahabad
19 W. R. 127

6. "Water v&te— Irrigation Jc'

(Bom. Act VII of 1879), s. 48— Bombay Revenue
Jurisdiction Act (X of 1876), s. 4, cl. (b)—Land
revenue — Percolation of canal water — Opinion of the
canal officer. Where water-rate is levied under s. 48
of the Irrigation Act (Bom. Act VII of 1879), the
question as to the jm-isdiction of Civil Courts in a suit
for the determination of the legality or otherwise of
such levy depends upon whether the incidence of the
rate is authorize! by the provisions of the section.
Under it, the condition precedent to levying the rate
is not the fact ascertained by evidence whether the
water in dispute has percolated from the canal, but
the opinion of the canal officer that it has so perco-
lated, he and not the Civil Court being made the
Judge of such percolation for the purposes of the
Act. Such water-rate falls within the denomination
of land revenue. Balvant Ganesh Oze v. Secre-
T.4.BY OF State fob India I. L. K. 22 Bom. 377

28. REVENUE COURTS.

(a) GENEK-VLLY.

Suits which cannot be

brought in Revenue Court for w^ant of juris-

{ 6155 )

DIGEST OF CASES.

( 6156 )

JUEISDICTION OF CIVIL COURT—

contd.

28. REVENUE COURTS— con^.

(a) Geneeaixy— conc^d.

diction. SemhU : There is authority for holding
that the Qvil Courts may entertain suits which
cannot be'brought in a Revenue Court, although a
portion of the claim is of a nature of which the
exclusive cognizance is given to Revenue Courts.
GosMAK Khan t\ Chowdhry Sheokaj Singh

5 M". W. 42

Claims to money in deposit

with Collector— Cwi7 Procedure Code, 1859,
5.5-. 237, 242. S. 237 of the Civil Procedure Code,
1859, gave no authority to a Civil Court to dispose
of claims to money in deposit with a Collector, nor
did s. 242 give such a Court authority to dispose of
claims to money under attachment. In the mnllcr
of Brojonath Mitter . . 13 W. B. 301
3. — Suit containing items cog-
nizable by Civil Court — Jurisdiction of Revenue
Courts— AH X of 1S59, ss. 23, 24. In districts
where Act X of 1859 is still in force, the jurisdiction
of the Civil Courts cannot be ousi ed, except in cases
where the parties concerned and the matters in
dispute come wholly and exclusively within the
category of persons and subjects in respect of \\ hich
express jurisdiction is given to the Revenue Courts.
Where, therefore, a suit which contained some items
of charges cognizable by the Civil Courts was
instituted in such Court: — Held, reversing the
decisions of the Courts below, that such suit was
properly so brought. Ktjmood Narain Bhoop v.

PXTRNA ChITNDER RoY

I. L. B. 4 Calc. 547 : 3 C. L. B. 258

(b) Partition.

4. Suit to set aside partition

— Question of title. There is nothing in the law
which makes the order of a Collector in a batwara
proceeding final as regards questiors of title.
OoDOY Singh v. Paltjck Singh . 16 W. E. 271
Suit for partition of land

paying revenue. Where the real object is to
obtain a division of tie lands of an estate paying re-
venue to Government, the suit is not maintainable
in a Qvil Court. Doorga Kripa Roy v. Mohesh
Chundeb Roy . . . 15 W. R. 242

6. Suits for partition of es-
tates paying revenue to Qovernvaent—Beng.
Reg. XIX of 1814, s. 3 — Apportionment of revenue.
Regulation XIX of 1814, s. 3, which requires that
the partition of estates paying revenue to Govern-
ment should be executed under the supervision of
the Collector, applies only where there is a revenue
payable to Government, which must be apportioned
when a division of the estate is made. It does not
apply v.here in making a division of the property it
is unnecessary to apportion the revenue, it being al-
ready apportioned and payable by each of the

JURISDICTION" OF CIVIL COURT—

C07ltd.

28. REVENUE COURTS— coTi^d.

(6) Paetition — contd.

owners of each of the parts of the original estate. A
suit for partition in such a case may be entertained
by the Civil Courts. Shama Soonduree Debia v.
Puresh Narain Roy . , 20 W. E. 182

7. Suit to set aside partition

under Beng. Reg. XIX of 1814 and for re-
distribution of shares in estate. The plaintiffs
and defendants were o\\ ners ot an undivided estate.
Besides their share as part owners, theijlaintifEs held
some of the estate astenants and some as pmchasers
from some of their co-sharers in the estate. The
whole estate was partitioned under Regulation XIX
of 1814, and on such partition the lands which the
plaintiffs held as tenants and as purchasers were
allotted to co-sharers other than those under whom
the plaintiffs held or from ^^hom they purchased.
In a suit by the plaintilTs for declaration of theii
title to those lands and for a re-distribution of the
shares : — Held, that the Court had no jurisdiction to
entertain a suit to alter a partition effected by tie
Revenue authorities. Sharat Chunder Bcrmox
V. Hurgobindo Burmon I. L. B. 4. Calc. 510

Radha Bttllubh Singh
Chand ....

, Dhekaj JIahta
2W. R. Mis. 51

8. Suit by allottee at private

partition to stay proceedings and have his
possession confirmed— £o<it.-«ra — ProctK^ingi
under Beng. Reg. XJX of 1814 — Partition by
private arrangement. An allottee under a private
partition sued to stay subsequent proceedings
brought under Regulation XIX of 1814 and to have
his possession confirmed. The defendants objected
to the suit being heard by the Civil Court, no pro-
ceedings having first been instituted before the
revenue authorities : Held, that the question
whether the Collector would have brought the lands
to partition, depended upon whether they were held
' ' in common tenancy ;' ' if they were not so held
the Collector would be only competent to make an
assignment of the revenue in proportion to the
several portions of the land held by the shareholders,
and the Civil Court was entitled to adjudicate on
the plaintiff's claim to be in possession of lands as
comprising his share in the estate, and, on his
succeeding in proving his claim, to declare that those
lands belonged to his divided share. Joynath Roy
V. Lall Bahadur Singh

I. L. B. 8 Calc. 126 : 10 C. L. B. 146

9. Suit to establish shara

after rejection of portions. Where the Collector
directs that a separate account should be opened
with the co-sharer of an estate on his application,
and his share is found not to be such as he states it
lo be, the co-sharers are at liberty to bring a suit in
the Civil Court to establish the extent of their
shares, in the event of the Collector under the
batwara law rejecting their application for »

( 6157 )

DIGEST OF CASES.

( 6158 )

JURISDICTION" OF CIVIL COUIIT-

contd.

28. REVENUE COURTS— con<d.
(6) Paetition — contd.

division of their specific shares.
V. BnuGwuT Lall .
10

Khedoo Thakoor
16 W. B. 9

Suit for partition of lands
excluded by Collector. On partition of a certain
mehal, lands belonging thereto were excluded by the
Collector. It being afterwards satisfactorily found
that such lands really belonged to the mehal and
ought not to have been so excluded, it was held that
a suit would lie in a Civil Court for partition of the
excluded lands on the basis of the former partition.
SreeMisserv.Crowdij, 15 W.R. 24<?, distinguished.
Keishno Kumar Baisak v. Bhim Lall Baisak

4 C. L. K. 38

11. Suit for declaration of

right to share. — There is nothing in the butwara
law or in any other regulation to prevent the Civil
Court from entertaining a suit for a declaration of
the plaintiff's right to a laiger shaie than that
recorded in his name in the paper of partition.
Spencer v. Puhul Chowdry. Spencer v. Kadir
BtJKSH . . 6 B. L. R. 658 : 15 W. R. 471

See AasiEDTJLLA v. Ashruff Hossein

8 B. L. R. Ap. 73 note

12. Suit for partition — Bevenue-

paytng estate — Partition— Civil Procedure Code
(Aci X of 1877), ss. 11, 265. Where one of several
co-sharers, owners of a piece of land defined by metes
and bounds and forming part of a revenue-paying
estate, brings a suit for partition, in which he does
not seek to have his joint Uability for the whole of
the Government revenue annulled, such suit is cog-
nizable by the Civil Courts which have jurisdiction
to determine the plaintiff's right to have his share
divided and to make a decree accordingly. Chun-
dernath Nundi v. Hur Narain Deb

I. L. R. 7 Calc. 153

13. Suit to have possession on

private partition confirmed — Declaration
against jurisdiction of Revenue Court to partition
—Specific Belief Act, jS77, s. 42. Certain proceed-
ings having been instituted to obtain a batwara of
an estate, the plaintiff, who was one of the co-sharers
in the estate, filed a suit against the others for a
declaration that certain plots, which were comprised
in the estate, and which he alleged had been allotted
to him on a private partition, were not liable to
partition by the revenue authorities. The plaintiff
also prayed for confirmation of his possession, and
that certain orders made by the Collector in the
batwara proceedings might be set aside. The
Collector was not a party to the suit. The lower
Court found that there had been a private partition,
and, without taking evidence as to the plots alleged
to be held separately by the plaintiff, made a decree
declaring that, by reason of the partition, the
Collector had no jurisdiction to proceed with the
batwara : Held, that the Court had no jurisdiction
to set aside the orders of the Collector, and that the

JURISDICTION" OF CIVIL COURT—

C07itd.

28. REVENUE COVRTS— contd.
(b) Partition — contd.

Court, not having determined the specific property,
held exclusively under the partition by the plaintiff
the declaration in the decree was not warranted by
s. 42 of the Specific P.ehef Act (I of 1877). Chiiru-
MAN Singh v. Anoop Singh . 11 C. L. R. 533

14. Suit by purchaser at

revenue sale for possession of share — Parti-
tion suit. The purchaser at a sale, under Act XI of
1859, s. 54, of a share of an aymah estate sued
for possession of the lands in the occupation of the
sharer whose rights and interests he had purchased.
The other sharers also defendants in the suit, who
had previous to the sale preferred an apphcation
under s. 11 and made a separate account of their
shares with the Collector, alleged that plaintiff was
in possession of all that he could claim as purchaser.
The lower Courts gave plaintiff a modified decree,
from which some of the defendants appealed : Held,
that the suit was not a suit for partition, and that
the Civil Court had jurisdiction. Aftabooddeen
V. Shumsooddeen Mullick . 18 "W". R. 461

15.

Suit for injunction to

restrain partition. A Civil Court cannot inter-
fere by injunction to restrain a Collector's power of
partition, but where, as between the several share-
holders, the extent and nature of the share of each
has been determined, the latter is bound to recognize
such determination, and to give effect to it by cariy-
ing out the partition if the parties apply for it.
Khoolun v. Wooma Churn Singh

3 C. L. R. 453

16.

Suit to enforce partition—

„. Beg. VII of 1822— Act XIX of lS'i3. An
imperfect partition was made between P and D, and
assented to by them and accepted by the Deputy
Collector. In the instrument in which the parties
declared their assent, there were passages distinctly
bearing on the possibiUty of inequahty in the quan-
tity of irrigated lands in each lot. Some months
after, D, complaining (not, however, alleging fraud)
that an excess of good and irrigable lands had fallen
to the lot of P, applied to the Deputy Collector to
set aside or re-open the partition. P objected, and
asserted that there was no such inequahty. The
Deputy Collector made enquiry, and held it proved
that the lands parcelled to each were of unequal
value, and, because P persisted in denying this,
ordered an interchange of lots, imputing fraud to P
but not making any enquiry whether or not D had
been induced by fraud to assent to the partition :
Held, that the Deputy Collector had no power to
order an interchange of lots, and that the Civil
Courts had jurisdiction to entertain a suit by P to
restore him to the possession of the land which fell
to him on the partition made and assented to by the
parties, and completed by the order of the Deputy
Collector accepting it. Desraj v. Dhuni

7 N. W. 9

( 6159 )

DIGEST OF CASES.

( 6160 )

JURISDICTION OF CIVII. COURT-

contd,

28. REVENUE COURTS— conW.

17.

(b) Pabtition — contd.
Suit for extra land after

partition by revenue authorities— J cf XIX
of 1863, s. 53—N.-W. P. Land Revenue Act (XIX
of 1873), s. 135. A partition was arranged by
arbitrators, and carried into effect by an ameen who
marked out the boundaries of the pattis into which
the mouzah was divided, and was accepted on the
20th of April 1871 by the parties concerned, and was
sanctioned by the Commissioner. In November
1872, one of the parties complained that, according
to a gashwara map filed by the ameen on the 9th
of June 1871, he was entitled to more aba li land
than he had got. The revenue authorities, consi-
dering that he had accepted the partition and that
it had been confirmed, refused to entertain his
complaint. He accordingly sued in the Civil Court
with a view to obtain the extra land to which he as-
serted himself entitled. It was held that s. 53, Act
XIX of 1863, would have precluded the suit, and it
was equally barred by the spirit, if not by the letter,
of s. 135, Act XIX of 1873. Fida Hossein v.
GholamJilani . . 7N.W. 346

18. Suit to set aside erroneous

settlement by Collector. A Civil Court may
set aside a settlement of land erroneously made by
the Collector as forming part of a resumed mehal, if
the land has not actually been resumed. Abboo
BiBEE V. Collector of Backergunge

1 W. B. 255

] JURISDICTION OF CIVIL COURT—

I contd.

28. REVENUE COURTS— conici.

(6) Pabtition — conid.

between them and the talukhdar : — Held, that, it
being under cl. 1, s. 10, Regulation VII of 1822, the
function of the Governor General in Council to
determine such proportion, the suit was not cogniz-
able by a Civil Court. Jogul Kishore v. Ram-
PERTAB Singh . . 4 N. W. 129

22. — ~ Suit in Civil Court for

ejectment — Refusal of tenant to accept settlement
after enhancement, under Beng. Reg. VII of 1822,
s 14, of rent of lands in a town. Where the Collector
has issued due notice of enhancement, under s. 14
of Regulation VII of 1822, of the jama of lands
situate in a town and subject to that Regulation, and
on failure by the tenant to accept a settlement at the
revised rate, an action in ejectment has been
brought, the Civil Court has no power to consider
whether the new rate of assessment is reasonable or
in any way to interfere with the amount of the
revised jama as fixed by the Collector. Ram
Chunder Bera v. Government

6 C. L. R. 365

19.

Suit to

set aside order

An order passed in the

under Act XIX of 1863

course of a partition under Act XIX of 1863 is ope
to revision under s. 53 of that Act, but is not liable
to be contested in a civil suit. Ishree Dyal i\
Banyadee Tewaree . . . 4 N. W. 7

20. Suit by parties declared

out of possession by revenue Court for
establishment of their rights — Act XIX of
18>i3, ss. 8, 9, 10, 11. Two of the parties in an
application, under Act XIX of 1863, for the partition
of a joint undivided estate were found to be out of
possession. — Held, that there was nothing in s. 8,9, 10,
or 11 to prevent parties, who have been declared out
of possession by the Collector, from suing in a Civil
Court to obtain possession by establishment of their
right of property in an estate, nor was there any-
thing in those sections which empowered a Collector
to determine questions of title. He was only
authorized to declare the nature and extent of the
interest in actual possession of the parties. Luch-
MAN t'. Saidho . . . 4 N. "W. 169

Suit to set aside order of

Settlement OflB.cer as to proportion of pro-
fits—i^en^. Reg. VII of 1822, s. 10, cl. 1. The
plaintiffs, biswadars, sued to set aside the order
of a settlement officer, which determined the propor-
tion in which the profits arising out of the limitation
of the Government demand should be divided

23.

Suit to alter settlement-

Beng. Reg. VII of 1822, s. 15. Lakhirajdars whose
lands have been resumed have the right, under s. 15,
Regulation VII of 1822 (if not barred by limitation),
to bring a civil suit to revise, annul, or alter a
settlement made by the Collector, not only as
against those who claimed the settlement before the
revenue authorities, but against all who have claims'
BiSHOROOP Hazrah v. Dumonotee Debia

15 W. B. 537

24.

Partition of mehal — Appli-

cation by co-Jiarer for partition — Notice by Collector
to other co-sharers to Mate objections upon a specified
day^Objection raised after day specified by original
applicant — Question of title — Distribution of land —
N.-W. P. Land Revenue Act (XIX of 18! 3), ss. Ill,
112, 113, 131, 132, 241 (f)— Civil Procedure Code,
s. 11. So far as ss. Ill, 112, 113, 114, and 115 of
Act XIX of 1873 are concerned, a Civil Court is the
Court which has jurisdiction to adjudicate upon a
question of title or proprietary right, either in an
original suit in cases in which the Assistant Collector
or Collector does not proceed to inquire into the
merits of an objection raising such a question under
s. 113 or on appeal in those cases in which the
Assistant Collector or Collector does decide upon
such questions raised by an objection made under
s. 112. The remaining sections relating to partition
do not provide for or bar the jurisdiction of the Civil
Court to adjudicate upon questions of title which
may arise in partition proceedings, or on the parti-
tion after the time specified in the notice published
under s. 1 1 1. S. 132 is not to be read as making the
Commisi^ioner the Court of Appeal from the Assist-
ant Collector or the Collector upon such questions,
nor does s. 241 (/) bar the jurisdiction of the Civil
Court to adjudicate upon them. Where, therefore,
after the day specified in the notice published by

( 6161

DIGEST OF CASES.

( 6162 )

JURISDICTION OF CIVIL COURT—

contd.

28. REVENUE COURTS— con/d.

(b) Paktitiok — contd.

the Assistant Collector under s. Ill, and after an
ameen had made an apportionment of lands
among the co-sharers of the mehal, the original
applicants for partition raised for the first time an
objection involving a question of title or pro-
prietary right, and this objection was disallowed
by the Assistant Collector and the partition made
and confirmed by the Collector under s. 131 : — Held,
that the objection was not one within the meaning
of e. 113, that the remedy of the objectors was not
an appeal from the Collector's decision under s. 132,
and that a suit by them in the Civil Court to estab-
lish their title to the land allotted to other co-sharers
was not barred by s. 241 (/), and with reference to
s. 11 of the Civil Procedure Code was maintainable.
Hahibullnh v. Kunji Mai, I. L. R. 7 All. 447,
distinguished. Sudnr v. Khuman Singh, I. L. R. 1
All. <>i3, referred to. Muhammad Abdul Karim
V. Muhammad Suadi Kh.4n I. L. R. 9 All. 429

25.

Suit for partition — Revenue-

paying estate — Proceedings under Beng. Act VIII
of 1876, s. 31, efject of. The jurisdiction of the
Civil Court in matters of partition of a revenue-
paying estate is restricted oidy in question affecting
the right of Government to assess and collect in its
own way the public revenue : — Held, accordingly,
that pendency of partition proceedings before the
Collector under s. 31 of Bengal Act VlII of 1876
was no bar to a suit for a declaration that under a
partial partition effected between the co-sharers
a portion of land had been separately allotted to
the plaintiff. Zahrun v. Govvri Sunkar

I. L. R. 15 Calc. 198

26. Suit for partition and pos-
session of a share in a particular plot in a
VOtt&h^J iirisdiction of Revenue Court — A''. -IF.
P. Land Revenue Act (XIX of 1873), ss. 135, 241 (/).
A suit by a co-sharer in a joint zamindari estate
for partition and possession of his proportionate
share of an isolated plot of land is not maintainable
in a Civil Court with reference to ss. 135 and 240
of the N.-W. P. Land Revenue Act (XIX of 1873).
Ram Dayal v. Megu Lai, I. L. R. 6 All. 4'<2, distin-
guished. Ijrail v. Kanhai I. Ii. R. 10 All. 5

27. Partition by Civil Court

of a portion of a revenue paying estate

Civil Procedure Code {Act XIV of 1882), s. 265
— Revtnue-paying estate, partition of, into several
revenue-paying eMates. The meaning of s. 205 of
the Code of Civil Procedure is that, where a revenue-
paying estate has to be partitioned into several
revenue-paying estates, such partition must be
carried out by the Collector. Zahrun v. Gowri
Sunkar, I. L. R. 15 Calc. 1<J8, approved. Debi
Singh v. Shed Lall Singh

I. L. R. 16 Calc. 203

28. Fraudulent partition — Civil

and Revenue Courts— Jurisdiction — Act XIX of 1873

JURISDICTION OF CIVIL COURT—

contd.

28. REVENUE COURTS— conid.

(6) Pabtition — concld.

{North- Western Provinces Land-revenue Act), s. 241
(/) — Suit hy person, not a party to the partition pro-
ceedings, to obt;tin in a Civil Court a declaration
that a partition carried out in a Revenue Court was
fraudulent and injurious to his interest. If, by a
fraud practised upon outside parties, such as mort-
gagees, or by fraud practised upon the Revenue
Court itself, a collusive and fraudulent partition is
carried through in that Court, the person who is
damnified by such fraudulent proceedings is not
without a remedy in the Civil Court. The CivU
Court has no jurisdiction whatever to set aside a
partition effected in the Revenue Court ; but it is
not without jurisdiction to investigate a question of
fraud, and, fraud be established, to make a declara-
tion that proceedings carried out in any Court were
fraudulent proceedings, and to give relief according-
ly. Byjnath Lall v. Ramoodcen Chowdry, L. R. 1
I. A. 106 ; McCormic v. Grogan, 4 E. <L- I. A. 82,
and Barnesly v. Powel, 1 Vesey {Senior) 283, referred
to. Muhammad Sadiq v. Laute Ram, I. L. R. 23
All. 291, distinguished. Mahadeo Prasad v.
Takia BiBi (1902) . . I. L. R. 25 All. 19

29.

Suit to reverse order of

Revenue Court, Parties suing to reverse an
order of the Revenue Courts may do so in the Civil
Courts. Nanku Roy v. Mahabir Prasad

3 B. L. R. Ap. 35 : 11 W. R. 405
{Contra) Hassan Ai.lee v. Budderooddeen

1 W. R. 141
Mahomed Fazul v. Oomakant Sein

1 W. R. 159
30. Suit to set aside proceed-
ing of Collector in execution. A Civil Court
cannot set aside the proceeding of a Collector in
execution of a decree of his own Court. Raj
Kishore Mullick v. Brindabun Thunder

PODDAR 15 W. R. 119

31. Suit under Beng. Act

VIII of 1865, s. IS— Appeal to Collector.
An appeal to the Collector was not necessary as a
condition precedent to a suit in the Civil Court
under s. 13, Bengal Act VIII of 18()5. Nugendro

ChUNDER GhOSE v. MUSRUFF BiBEE

15 W. R. 17

32. Suit to question award of
Collector under Act I of 184:1— Buundaries.
An award of the Collector under Act I of 1847 in
respect of boundaries was not final, even though
undisturbed on appeal ; nor was he competent to
do more than demarcate by visible and tangible
marks the boundaries between estates and fields.
His award, therefore, was hable to be questioned by
a suit in the Civil Court. Ram Jewun Singh v.
Radha Pershad Singh . . 16 W. R. 109

( 1663

DIGEST OF CASES.

( 6164 )

JURISDICTIOW OF CIVIL COURT—

contd.

28. REVENUE COURTS— confer.

33. Suit to compel purchaser

at sale for arrears of rent to furnish sei:yx-
Titj—Beng. Beg. Vlll of 1819, ss. 5 and 7. A
zamindar cannot bring a suit in the Civil Court
to cciupel the purchaser of a patni in his estate
sold by auction for arrears of rent to furnish secu-
ritj' for the amount of half the jearly jama. If
the purchaser of the patni is not willing to give
security for the payment of his rent, the zamindar's
remedy is under Regulation VUl of 1 819, ss. 5 and 7,
to appoint his own sezawal, or collector, and deduct
his own rents from the collections before handing
over the surplus to the patnidar, who, moreover, is
declared by s. 7 to take all the risk of the attachment.
This remedy of the zamindar is not affected by the
grant by him of a dar-patni to a third pa^tJ^ Joy

KiSHEN MOOKEEJEE V. JaNKEENATH MOOKEEJEE

17 W. R. 470

34. Order of Collector under

s. 11, Act XI of 1859, power of Civil Court
to interfere with. Qucere . Whether the Civil
Court can interfere with a Collector's order, under
s. 11, Act XI of 1859, opening a separate account
with the recorded sharer of a joint estate. Shueu-
FOONissA Bebee V. HcsMUT Ali 9 W. R. 533

35. Suit to set aside order of

Collector— Jc< XI of 18-59, s. 11. The plaintiff
and A and B were joint owners of an estate paying
revenue to Government. The names of A and B
were alone recorded in the rent-roll of the Collector.
A and B alienated certain specific portions of the
lands of the estate to their wives, and applied to
the Collector, under s. 11 of Act XI of 1859,to open a
separateaccount for payment of the proportionate
share of the revenue payable in respect of the lands
so alienated. The plaintiff objected to such separa-
tion on the ground that the lands had never been
divided, but always held ijmali, and that A and B
claimed a larger share than they owned ; but his
objection was rejected by the Collector on the
ground that he was not a recorded proprietor, and
the application of A and B was granted. The plain-
tiff now sued in the Civil Court for a declaration of
the extent of his share in the joint estate, and to
have the order of the Collector set aside :—JEfeW,-
that the Civil Court had jurisdiction to entertain
such a suit, and that it was not necessary to make
the Collector a party. Haegobind Das v. Baeoda
Peasad Das . . 6 B. L. R. 614

15 W. R. 112
Madan MonuN Maztj.mdae v. Baistab Chandea
Mavdax. Puena Ciiandea Ganguli v. ]\L4.DAN
Mohan Mazumvae

e B. L. R. 617 note : 13 W. R. 67

36. Suit to set aside order of
Revenue Court under Act XIX of 1863.
A suit in the Civil Court did not lie to set aside the
decision passed by the revenue authorities in the

JXJRISDICTION OF CIVIL COURT—

contd-

28. REVENUE COURTS— con^d.

exercise of the power vested in them by s. 8, Act
XIX of 1863. However irregular the proceedings
be, and not in conformity to the provisions of that
section, the proper course for the party aggrieved
was by appeal in the manner prescribed by the Act.
Btjkhta v. Gunga ... 3 Agra 161

37. Interference with decrees

of Revenue Covivt—Frmid. Proceedings held
by the Revenue Court.s in execution of their own
decrees are final, and cannot be interfered with by
the Civil Courts, unless on some special ground, like
that of fraud. Bhoojxjnga Thakooe r. Luchmee
Naeain Sahee . . . . 9 W. R. 80

38. Suit to set aside decree

for fraud— /lc< X of 1859, s. 28. The provisions
of s. 28, Act X of ] 859, are no bar to the institution
in the Civil Court of a suit by a raiyat, farmer, or
tenant for maintenance of possession, nor to a suit to
set aside a decree of a Revenue Court on the ground
that it had been obtained by fraud. Rameswab
Chowdhueee v. Nackchedee Singh

3 Agra 357
s. c. Agra F. B., Ed. 1874, 160

39. Suit to. set aside

decree on kabidiat alleged to be false — Faihtre to
show fraud. Plaintiff had executed a kistbundi for
arrears of rent decreed against him by a Revenue
Court. He then sued to set aside the decree and
kistbundi on the ground that the decree had been
based on a fraudulent and fictitious kabuliat. The
suit, though dismissed in the first Court, was decreed
on appeal : — Held, on special ajjpeal, there being no
evidence of the fraud on the record of the case, that
the plaintiff was not entitled to a decree. Mueeiam
BiBEE V. Mahomed Jamal . 12 W. R. 380

40.

Suit to set aside order of

Collector refusing to sell for arrears of rent.
A suit will not lie in the Civil Court against an
order of a Collector refusing to hold a sale of a tenure
for arrears of rent. Roy Hueeekishen v. Nuesing
Naeain . . . . 6 W. R., Act X, 63

41. Suit to set aside order of

Collector for registration of names. A suit
will not lie in the Civil Court to set aside an order by
a Collector, made under s. 27, Act X of 1859, for the
registration of the names of the defendants as
shikmi talukhdars in the plaintiff 's serishtti. Maho-
med NooE Buksh v. Mohtjn Chtjndeb Poddae

6 W. R., Act X, 67

42. Suit to establish claim to

tenure not requiring registration — Transfer
of tenure not requiring registration in zamindari
serishta — Suit to establish claim to tenure. The
sub-letting of a tenure does not necessarily make a
raiyat a middleman. A raiyat who holds land under
cultivation by himself, or by others taking under
him, is not a middleman. His holding, therefore,
was not one the transfer of which required registra*

( 6165 )

DIGEST OF CASES.

( 6166 )

JTJBISDICTION or CIVIL COURT—

contd.

28. REVENUE COURTS— conid.

tion under s. 27, Act X of 1859, and a suit will lie in
the Civil Court in such a case by an unsuccessful
claimant under s. 106 of that Act. Kaeoo Lall
THAKOOK v. LnCHMEEITT DOOGTJR 7 "W. K. 15

43. Suits to reverse summary

a'wards for rent — Question of title. In a suit
brought by raiyats to reverse surumary awards for
rent, the Court, instead of deciding the question of
title between tie co-defendants, should merely
determine to whom the plaintifi's have paid rent in
past years, and their liability for the present year,
in accordance with their past payments and the
possession of the property evidenced thereby, leav-
ing the contending co-sharers to settle the question
of title in a separate suit brought for that purpose.

MXTDDOOSOODUN ACHAEJ V. KiSHORE HazEAH

W. R. F. B. 36

44.

Suit to set aside order of

Revenue Court directing ejectment — Cause
of action — Kes judicata. A Revenue Court having j
ordered a tenant to be ejected under s. 10 of the
Rent Recovery Act on the ground that he had
refused to accept a pottah as directed by the Court,
the tenant brought a suit in the Civil Court to set
aside the order of the Revenue Court : — Held, that '<
the suit would not lie. Ragava v. Rajauopal j

I. L. R. 9 Mad. 39 I

45. Order of ejectment — Suit j

to set aside such order — Madras Rent Re- \
covery Act (Mad. Act VIII of 1S66), s. 10. Held, \
(Davies j. dii^enting), that a tenant who has
been ejected in pursuance of an order under Rent
Recovery Act (Madras), s. 10, cannot maintain a
suit to question the legality of that order. Rarjava
V. Rajacjopal, I. L. R. y Mud. 39, followed. Manicka
Gbamani v. Ramachandea Ayyae

I. L. R. 21 Mad. 482

46. Suit for money paid as

rent — Rent paid twice. The plaintiff sued to
recover money which she had paid as rent to the
zamindar, under a decree of the Revenue Court,
after she had already paid her rent to his gomastah :
— Held, that the suit was not cognizable by the
Civil Court. Saxtdamini Dasi v. Thakomani Debi
3 B. li. R. Ap. 114 !

47. Suit after decision of Re- |
venue Court under Act X of 1859, s. 77—
Question of title. After a decision by a Revenue |
Court under s. 77, Act X of 1859, a Civil Court j
might determine the legal title to the rent ; and,
when determining such title, the Civil Court might
also determine whether any rent which may have >
been lost to a party by the decision of the Revenue .
Coiu-t might not be recouped to him. Kefaet
HossEiN V. Shttmshare Ali . 13 W. R, 458 I

48. Enquiry into legality of i

proceedings of Collector— i?e7!g'. Act VII of
1868 — Certificate under s. 18. In a suit for arrears |

JURISDICTION OF CIVIL COURT—

contd.

28. REVENUE COURTS— confef.

of rent it appeared that the plaintiff claimed under
a pottah granted by the ov, ner of land after a certifi-
cate had been issued against him out of a Collector's
office under Bengal Act VII of 1868. The defend-
ants had purchased the land in question at a sale
held i:nder the Act. The plaintiff alleged tl at the
certificate had not been served, and that no
notice before the certificate was issued was served
upon the grantor as required by s. 18 of the Act ;
and he contended that,as the Collector's proceedings
were irregular, the pottah was valid. The District
Judge held that the Civil Court had no power to
enquire into the Collector's proceedings, and must,
as nothing appeared to the contrary, assume that
they were regular, and dismissed the suit : — Held,
that the Judge was bound to examine the proceed-
ings of the Collector to see that they were legal and
regular so as to constitute a legal bar to the grant
of the pottah, and that the Judge was not at liberty
to make any presumption in favour of their legality
or correctness. Hem Lotta v. Sreedhone Boeooa
I. L. R. 3 Calc. 771

49.

Suit for execution of de-

cree in summary suit for rent. A regular
suit to enforce a decree obtained in a summary suit
for rent, which the Revenue Court has refused to
execute upon the ground that it has been satisfied,
cannot be maintained in the Civil Court (Steee, J.,
dissentinc;). Ananda Mayi Dasi v. Patit Pabuxi
Dasi B7 L. R. Sup. Vol. 18 : W. R. F. B. 118

50. Suit to enforce decree of

Revenue Court. As a general rule, a suit cannot
be brought in a Civil Court to enforce a decree of a
Revenue Court under Act X of 1859. Such decrees
can be enforced only by execution, and the limita-
tion for proceedings to execute them was defined by
Act X itself. Aghore Chtjnder Mookerjee v.

WOOMA SOONDEREE Dabea . 7 "W. R. 216

Odhesh Coomar Singh v. Ram Gobind Singh
9 W. R. 145

51.

Suit for recovery of com-

pensation awarded to a purchaser at a reve-
nue sale — Maintainability of such a suit — Benj.
Act VII of IS'JS, s. 2. A suit bj- a purchaser of an
estate sold for arrears of Government revenue for
recovery of compensation awarded to him under]s. 2
of Act VII (B. C.) of 18G8, by a Commissioner who
set aside the sale, is maintainable in a Civil Court.
Chuttc Lal v. Bhaowati Prosad

1 C. W. N. 447

52, Suit for amount due under

decree in rent suit. J K I) instituted a suit
before a Deputy Collector, under Act X of 1859
against L N R, for monej' due from the defendant
as his gomastah. The parties, before judgment,
filed a petition of compromise, according to which it
was agreed that the amount admitted by L N R to

( 6167 )

DIGEST OF CASES.

( 6168

JTJKISDICTION OF CIVIL COURT —

contd.

28. REVENUE COURTS— contd.
(c) Orders of Revenue Cottrts — contd.

be due (R325) should be paid by instalments, and it
was stipulated that, on failure to pay any instal-
ment "the whole debt will be realized at once, and I
{L N JR) shall be charged interest at half per cent-

per month and it is

prayed that the case be disposed of according to the
above terms." The Deputy Collector decreed—
"Let the case be disposed of in accordance
with the terms of the compromise." J K D
assigned his interest under that decree to R M D.
L N R failed to pay an instalment. R M D then
applied to the Deputy Collector to execute the
decree for the whole amount with interest, but his
application was refused. Thereupon, R M D
brought an action in the Civil Court against L N R
for the amount due with interest -.—Held, that the
suit would not lie in the Civil Court to recover the
amount due under the .^ct X decree. The parties
to the compromise contemplated that the whole
amount and interest should be realized only by
process of execution to be issued out of the Reve-
nue Court which was to be delayed till a failure
to pay an instalment had taken place. On the
refusal of the Deputy Collector to issue execution
for the amount of the debt, the plaintiff should
have appealed to the Commissioner. Ram Mohan
Das v. Lakhi Naeayan Roy

4 B. L. R. A. C. 207
•s.c. LucKHEE Narain Rov V. Ram Mohun
5>oss 13 W. R. 151

53. — Suit to set aside sale by-
order of Collector. A Civil Court had no juris-
diction to entertain a suit to set aside a sale by order
of a Collector, under Act X of 1859, in execution of
a decree for arrears of rent due on the tenure of
which the sale was made. Haranund Dctt v.
Ram Dhun Sein . W. R. 1864, Act X, 122

54. Suit to set aside sale for

arrears of Revenue— .4 c< XI of ISW, s. 33.
Plaintiff not having appealed to the Revenue Com-
missioner against the sale of his estate for arrears of
Government revenue, the Civil Court was not com-
petent, under s. 33, Act XI of 1859, to entertain a
suit for the annulment of the sale. Mohun Lall
Tagore v. Collector op Tirhoot 1 W. R. 356

55- Suit by under-tenant to

recover tenure sold for arrears of rent— Jc<
X of 18 )9, s. lOH. An under-tenant might sue in the
Civil Court to recover his under-tenure sold by his
zamindar for arrears of rent, although he did not
previously intervene in the Collector's Court under
e. 106, Act X of 1859. Mooktokashee Dassia
V. Brojpnder Coomar Roy

3 W. R., Act X, 156

^®* Suit to set aside rent decree

after failure to appeal against it. Where
the Deputy Collector refused plaintifl's application

JURISDICTION OP CIVIL COURT—

conld.

28. REVENUE COURTS— contd.

to set aside a rent decree as passed against him upon
a confession of judgment fraudulently filed by other
parties, and the value of the suit being beneath
RlOO, the plaintiff might have apyjealed to the
Collector under s. 14, Bengal Act VI of 1862 :—
Held, that, having failed to do so, he had no right to
bring a suit for the purpose in the Civil Court. Raj

KiSHEN MOOKERJEE V. MODHOO SoODUN MUNDLE

17 W. R. 413

57.

Suit to recover land sold

in execution of decree for rent. A suit lay
in the Civil Court for the recovery of land, fraudu-
lentljr sold in execution of a decree for rent, under
Act X of 1859, against a party not in possession
without suing specifically to set aside the sale.
NooR BuKSH V. Mean Jan 6 W. R., Act X, 60

58. Suit to set aside sale of

under-tenure— ^cf X of 1859, s. 108. The
owner of an under-tenure might sue in the Civil
Court for a declaration that the sale of his under-
tenure under Act X of 1859 was illegal and void
under s. 108 of that Act, and that he was entitled to
possession of the land in suit notwithstanding such
illegal sale. Shuboop Chunder Bhuttachabjeb
V. Kasheeshuree Dossia . 6 "W. R., Act X, 55

59.

Suit to set aside revenue

sale on account of fraud. An ex- parte decree
for an arrear of rent having been passed by a Reve-
nue Court against certain tenants, and their land
having been put up for sale in execution and bought
by the decree-holders, the tenants brought a civil
suit to getrii of the sale as well as of the decree.
The lower Courts, finding that the whole of the pro-
ceedings hadlbeen conducted ^dthoat the knowledge
of the plaintiffs and that a fraud had been intended,
gave them a decree setting aside the sale, and
affirming plaintiffs' title in the disputed land •.—Held
in special appeal, that as the parties came up on a
ground of equity, the 'High Court could interfere
without prejudice to the jurisdiction of the Revenue
Courts. Accordingly, on the principle that the
defendants should not be allowed to take advantage
of their own fraud, it was decreed (the purchase-
money being still in deposit in the Collectorate)
that the defendants should re-convey the property
to the plaintiffs. Shtbo Soondubee Dossee v.
Panchcowbee Chundra . 14 "W. R. 158

60. : — An action lies

in the Civil Court to set aside a purchase fraudu-
lently made at a sale in execution of a decree of a
Revenue Court which has been obtained by fraud.

NiLMANI BUBNICK V. PUDDO LOCHAN CHUCKEB-
BUTTY

B. L. R. Sup., Vol 379 : 5 W. R., Act X, 20

Aghoee Lall Shamunt v. Gyananund Roy
6 W. R., Act X, 11

( 6169 )

DIGEST OF CASES.

( 6170 )

JUKISDICTION OF CIVIL COURT—

contd.

28. REVENUE COURTS— con^rf.
(c) Orders of Revenue Cotjhts — contd-

BXJCKLAND V. ASHOO CHOWDHBAIN

9 W. B. 326

Brojendko Coomar Chowdhby v. Ram Coomar

HoLDAR 13W.B.32

Deen Dval Si>:gh v. Danee Roy

13 W. R. 185

61.

Suit to set aside sale of

under-tenure under Act X of 1859— Fraud.
The purchaser of an under-tenure might sue in the
Civil Court to set aside a sale of the under-tenure in
execution of a decree for arrears of rent under Act X
of 1859 on the ground that such decree was obtained
by fraud subsequently to his purchase. Gxjnga
Doss DuTT V. Ramnaratn Chose

B.L.R. Sup. Vol.625
2 Ind. Jur. N. S. Ill : 7 W. B. 183

Sotjdaminee Dossee v. Bholanath Shaha

9 W. B. 363

62 Suit to set aside sale in

execution of decree— ^c( X of 1S59, s. 105 —
Fraud. The Civil Court had jurisdiction to enter-
tain a suit instituted by A to set aside a sale of his
tenure under s. 105 of Act X of 1859 on the ground
that the sale was held under a decree obtained
fraudulently against B, who was not the real o-^-ner.

RAMSX3NDAR POBAMANICK V. PbASANNA KuMAR
BOSE

B. L. E. Sup. Vol. 382 : 5 W. B., Act X, 22

63. _— Suit to set aside sale for

arrears of rent— .4c/ X oj 1S59, .-:. 105—
Fraud. A Civil ( ourt had jurisdiction to entertain
a suit by a tenant to recover possession of a tenure
from an auction-purchaser at a sale for arrears of
rent under s. 105 of Act X of 1859, although there is
no allegation of fraud, the tenant not having been a
party to the decree for arrears of rent. ]\1eah Jan
MuNSHi v. KuRBUNAiNiAYi Debi . 8 B. L. B. 1

64.

Suit to set aside sale by-

order of Bevenue Court — Fraud. A sale
by order of a Revenue Court can be set aside by a
decree of the Civil Court, even if held directly under
Act XI of 1859. In this case the sale had taken
place under s. 110 of Act X of 1859. Joydooega
Debia v. Gopal Chundeb Baherjee

9 W. B. 538

65. Suit to set aside illegal

sale by Collector. In a suit to set aside a sale by
a Collector under Act X of 1859, on the allegations
that, at the time of the sale, a warrant of execution
previously obtained against the moveable property
of the judgment-debtor still remained in force, and
that the deposit on the purchase-morey v\as not
paid until fourteen days had elapsed, it was held
that such allegations, if provx^d, would amount to
illegalities, and that a suit to declare such a sale null

JUBISDICTIOW OF CIVIL COURT—

contd.

28. REVENUE COURTS— confi.

and void would lie in the Civil Court. Ali Bfksh
Shah v. Nubee Buksh . . 9 W. R. 600

Sec Balkrishen Das v. Simpson

I. li. R. 25 Cale. 883
2 C. W. N. 513

66. Suit by judgment-debtor to

set aside sale by Revenue Court. The Civil
Court has jurisdiction to entertain a suit by judg-
ment-debtor under a decree of the Revenue Court
for confirmation of his right in immoveable property
sold by his execution-creditor under an order of the
Revenue Court for the sale of the rights and benefits
of the judgment-debtor in the suit in which the order
was made, and for a declaration that the sale was
void. Chandbakant Bhattachaeji ?■. .7.\TirT'\Ti
Chatterji 1 B. L. R. A. C. 177 : 10 W. R. 224

67. Suit to set aside Collector's

sale and recover property— C'oste of partition
— Order of Collector for faijment of proportionate
share of costs by co-sharers — Suit to set aside sale.
The Civil Court decreed partition (batwara) of an
estate in a suit brought by some of the co-sharers in
the estate, and ordered the plaintiffs to pay the costs
of the partition. The Collector, however, called upon
the defendants, the other co-sharers, to pay a por-
tion of the fees to the Ameen who effected the parti-
tion, namely, in proportion to the shares allotted to
them by the decree : and in default of payment of
the whole of such portion he sold the defendant's
shares in the estate : Held, that the Collector acted
ultra vires, and a suit was maintainable in a Civil
Court to set aside the sale and for recovery of the
property. Baij Nath Sahu r. Lalla Sital
Prasad 2 B. L. B. F. B. 1 ; 10 W. B. F. B. 66

68. Oi'der of Collector setting

aside sale for arrears of Tevenue—lititnue
Sale Act {XI of 1S59), s. 33 — Sale for arrears not
due — Suit to set aside sale — Appeal to Commissioner
A suit may be brought in the Civil Court to set aside
a sale held under Act XI of 1859, on the ground that
no arrears were due, although such ground was not
declared and specified in an appeal to the Commis-
sioner as provided for in s. 33 of Act XI of 1859.
Baijnath Sahu v. Lala Sital Prasad, 2 B. L. B.
F. B. 1 : 10 W. i?., F. B. 66, followed. Gobind Lai
Roy V. Ramjanam Misser, 1. L. R. 21 Calc. 70
distinguished and explained. Habkhoo Sinoh r.
Bunsidhub Sinch . I. Ij. B. 25 Calc. 876

2 C. W. N. 360

69. Suit to set aside sale when

made without arrears of revenue being due
— Sanction of Co)nmis-^ioncr. A suit to f^et aside
a sale under Act XI of 1869, on the ground that no
arrear of revenue was due, may be brought in the
Civil Court without previous appeal to the Commis-
sioner. Thakur Churk Roy v. Collector of
24-Pergunnahs . . . 13 "W. B. 336

( 8171 )

DIGEST OF CASES.

( 6172 )

JXTRISDICTION' OF CIVIL COURT—

contd.

28. REVENUE COURTS— conftZ.
(c) Obders of Revenue Cotjets — contd.

70. . Suit to question regular-

ity of sale in execution under Collector's
order. When a sale had takea place by order ol the
Collector in execution of a decree under Act X of
1859, a civil suit lay for the purpose of questioning
the regularity and propriety of the proceeding.
Where circumstances indicate not merely irregu-
larity, but irregularity brought about by the contri-
vance' of the decree-holder, the Civil Court has
jurisdiction to set the sale aside and is right in doing
so Tek\et Bhao Narain Deo v. Court of

Wards ' 15 W. K. 59

dissenting from Ruttun Monee Dossia v. Kalee-
KissEN Chuckerbutty . "W. B. F. B. 147

71. Suit by person injured by

sale of non- transferable tenure in execu-
tion of decree of Bevenue Court, Where a
tenure has been sold in execution of a decree by a
Revenue Court, a third person, not a party to the
suit in that Court, alleging that the tenure was not
transferable, and seeking to have his right to posses-
sion vindicated against the pretended transferee, is
entitled to complain in the Civil Court and to ask
protection against the probable injurious conse-
quences to himself of the Collector's decree. JoY-

KISHEN MOOKERJEE V. HUREEHUR MOOKERJEE

9 W. B. 286

72.

Suit to set aside sale on

ground other than fraud— .4 ct X of 1876, s.
Sale for arrears of revenue — Suit to set aside. S. 4,
cl. (c), of Act X of 1876, excepts from the jui-isdiction
of the Civil Courts claims to set aside, on account of
irregularity, mistake, or any other ground except
fraud, sales for arrears of land revenue. Quaere :
Whether the exception of fraud in the above enact-
ment is confined to fraud on the part of officers con-
ducting sales for arrears of land revenue. Bal-
KBISHNA Vasudeb V. Madhavrav Naraya^

I. Ii. B. 5 Bom. 3

73. , Suit for confirmation of

exacution-sale set asids by Collsetor— Gi'jil
Procedure Code, 1SS2, s. 312— Onus prohanii. A
suit lies in a Civil Court for confirmation of a sale
held in execution of a decree by the Collector under
s, 326 of the Civil PrODedu.e Code aid to set aside an
order pa=i3el by the Collector cancelling the sale.
Madho Prasad v. Hama Kaar, I. L. R. 5 All.
314, referred to. Azim-ud-din v. Balde.o, 1. L. R.
3 All. ■'i'yi, followed. In such a suit, where it is
pleaded in defence that the property was sold for an
inadequate price, it lies on the defendant to show
that there has been a material irregularity in
publishing or conducting the sale. Bwot Bibt v.
KAT.KA ... I. Ii. B. 9 All. 602

74. Sale in execution of decree

—Civil Procedure Cole, ss. 311, 313, 3i0, 322B,
3220, 322D— Transfer of execution to Collector^
Application to Civil Coart to set aside sale held by

JUBISDICTION OF CIVIL COUBT—

contd.

28. REVENUE COURTS— confi.

(c) Orders op Revenue Courts — contd.
Collector on the ground of irregularity. Held by the
Full Bench, that an application to set aside, on the
ground of material irregularity within the meaning
of s. 311 of the Civil Procedure Code, a sale held by
the Collector in execution of a decree transferred to
him for execution under s. 320, cannot be entertain-
ed by a Civil Court. Madho Prasad v. Hansa Kuar
I. L. R. 5 All. 314, followed. Nathu 31 al v. Lachmi
Narain, I. L. R. 9 All. 43, distinguished. Per
Edge, C.J. — The intention of the Legislature as
expressed in s. 320 and the following sections of
the Civil Procedure Code Was not to allow any
delegation to the Collector of power to adjudicate
upon questions of title, but, in other matters, to
hand over all the proceedings to the Collector, and
ta withdraw the matters so handed over from the
purview of the Civil Courts to that extent, but not
questions of title or the other questions, if in
dispute, referred to in s. 322B, 322C, or 322D.
Keshabdeo v. Radhe Prasad

I. L. B. 11 All. 94

75.

Suit to cancel pottah of

I Government waste issued by Collector —
Pow&r of Collector to cancel pottah granted hy him
— Standing order. The plaintiff having obtained
I from the revenue officers of the district a pottah of
! Government waste sued for the cancellation of a
pottah for the same land subsequently granted to
i other persons by the Collector, who considered that
the issue of the plaintiff's pottah was not in ac-
I cordance with the darkhast rules : — Held, that it was
i competent to a Civil Court to pass a decree declaring
j the second pottah null and void, and the plaintiff
was entitled to such a decree. Kullapa Naik v.
I Ramanuja Chariyar, 4 Mad. 429, followed. Col-
lector OF Salem v. Rangapa

I. L. B. 12 Mad, 404

76.

_ Suit by auction purchaser

to confirm sale set aside by the Collector

— Civil Procedure Code, 18S2, ss. 312 and 320 —
Civil Procedure Code Amendment Act (VII of
18SS), ss. 30 and 56 — Decree transferred to Collec-
tor for execution — Right of suit. A decree was
transferred to the Collector for execution. A sale
was held by the Collector under that decree. Sub-
sequently that sale was set aside by the Collector by
a 1 order under s. 312 of the Code of Civil Procedure.
A person who had been an auction-purchaser at the
sale so set aside brought a suit in a Civil Court to
have the sale restoi^ed and confirmed : Held, that
such a suit would not He. Asimuddin v. Baldeo,
I. L. R. 3 All. 554, and Bandi Bihi v. Kalka,I. L. R.
9 All. 602, referred to, and held to be no longer
applicable by reason of the changes effected in
the law by Act VH of 1888, but the judgmsnt of
Oldfield. /., in the former case approved. Madho
Prasad v. Hansa Kuar, I. L. R. 5 All. 314, referred
to. Shib Singh v. Mukat Singh

I. L, E. 18 All. 437

( 6173 )

DIGEST OF CASES.

( 6174 )

JURISDICTION OF CIVIL COURT—

corUd.

28. REVENUE COURTS— confd.
(c) Orders of Revenue CoTJB,TS—contd.

77. . — Civil Procedure

Code', 1882, ss. 312 and 320— Act VII of 1888,
ss. 30 and 65 — Execution of decree — Decree trans-
ferred to Collector for execution. At a sale of ances-
tral propert}'- held by a Collector executing a decree
transferred to him under s. 320 of the Code of Civil
Procedure the plaintiffs, decree-holders, were
the auction-purchasers. On the application of the
defendants, judgment-debtors, the sale was set
aside by the Collector. Thereupon the plaintiffs,
decree-holders, auction-purchasers, filed a suit for a
declaration that the auction-sale was a valid one,
and that the order of the Collector setting it aside
was ineffectual : Held, that such a suit was main-
tainable. Shib Singh v. Mukat Singh, I. L. R. 18
All. 437, overruled. XJgar Nath Tiwa.ri v. Bhonath
Tiwari, All. Weekly Notes (1891) 41, and Diwan
Singh v. Bharat Singh, I. L. R. 3 All. 206, referred
to. Shiam Behaki Lal v. Rup Kishore

I. L. R. 20 All. 379

78. Suit for declaration con-
trary to decision of Revenue Court— iV.-PF.

P. Reyit Act (XII of 1881), ss. 95 and 96. One N
was an occupancy tenant. On his death his widow
J continued in occupation of the occupancy holding.
After the death of J, one S, alleging herself to be
the daughter of N and J, appUed in the Court of
Revenue to have her name entered in the village
papers as occupancy tenant of iVs holding in succes-
sion to him. The zamindars were made parties to
this proceeding. The Court of Revenue decided in
favour of the applicant S. The zamindars appealed
on the revenue side, but their appeal was dismissed:
— HeM, that no suit would lie in a Civil Court on
the part of the zamindars for a declaration that they,
and not S, were entitled to possession of the occu-
pancy holding in question, and that it should be
declared that'<S' was not the daughter of iV. Subarni
V. Bhagwan Khan . . I. L. R. 19 All. 101

79. Decision of a Revenue

OtB.ceT— Bengal Tenancy Act (VIII of 1S85),
ss. 107 a7id 108 — Landlord and tenant — Record of
rights. An order made by a Revenue Officer under
s. 107 of the Bengal Tenancy Act, determining the
rent payable for a holding, has the force of a decree,
■and when not set aside by apjieal or otherwise, can-
not be questioned in a Civil Court. Joy pal Dhobi v.
Palukdhari Das, 2 C. W. N. 491, approved. Ram
AuTAR Singh v. Sandman Singh

I. li. B. 27 Calc. 167

See GoKHUL S.-vhu v. Jodu Nundun Roy

I. L. B. 17 Calc. 721

80. — Order of Revenue Court

granting sale under certificate— Pi/^Z/c De-
7)iands Recovery Act (Beng. Act VII of 1880),
s. 2 — Limitation — Suit to set aside sale — Order of
Revenue Court setting aside sale. A sale was held
on the 9th September 1893, in execution of a
•certificate under the Public Demands Recovery Act

JURISDICTION OF CIVIL COURT—

conid.

28. REVENUE COURTS— concW.
(c) Orders of Revenue Courts — concld.
(Bengal Act VII of 1880). On the 2nd January
1894, an appeal was preferred to the Commissioner
under s. 2 of Act VII of 1868 for setting aside
the sale after expiry of sixty days prescribed for
appeal. The Commissioner ordered an inquiry into
the question whether the appellants before him
were prevented from taking steps in consequence of
fraud. The purchaser complained against this
order before the Board of Revenue, who, acting
under' their power of revision, set aside the certifi-
cate, and'the Commissioner subsequently set aside
the sale without hearing the purchaser. In a suit
brought in the Civil Court for the same object
during the pendency of the appeal before the Com-
missioner and decided by the lower Court after the
orders of the Board and the Commissioner setting
aside the certificate and sale were passed : — Held by
the High Court on appeal, that (i) the plaintiff was
entitled to proceed simultaneously in the Civil Court
and in the Revenue Court. If the sale be validly
set aside by the Revenue Courts, a decree must
follow in the suit, (ii) As regards the contention
that the Commissioner had no jurisdiction to
entertain the appeal, as it was barred by limitation,
the question of limitation could not be held to be one
of jurisdiction, and the grounds of the Commission-
er's finding on that point could not be discussed in
the High Court. Mahomed Hossain v. Purunder
Mahto, I. L. R. 11 Calc. 287, and Mungal Per shad
Dichit v. Grija Kant Lahiri, I. L. R. 8 Calc. 51 :
L. R. 8 I. A. 123: 11 G. L. R. 113, referred to.
(iii) The Civil Court has no authority to reverse the
order of a Revenue Court, which sets aside a sale.
(iv) The reason for overruHng the objection on the
ground of limitation applied to the objection that
the Commissioner had not heard the purchaser,
and that objection also could not be entertained.
GuNESSAR Singh v. Gonesh D.^ss

L L. R. 25 Calc. 789

81. Commutation of rent —

Bengal Tenancy Act (VIII of 1SS5), s. 49. An
order passed in appeal by a Revenue Court under
s. 40 of the Bengal Tenancy Act is final, and no
suit lies in the Civil Courts by which its propriety
can be questioned. Laula Saligram Singh v.
RA.IGIR . . . . . 3 C. W. N. 311

82 Suit to set aside sale for

arrears of cesses — Public Denumds Recovery Act
(Beng. Act VII of 1880), ss. 2, 8, 10. A suit to set
aside a sale held for arrears of cesses on the
cround that no notice of the certificate under s. 10 of
Bengal Act VII of 1880 was served upon the plaintiff,
is maintainable in the CivU Court. Baijnath Sahai
V. Ramgut Singh, I. L. R. 23 Calc. 775, and Saroda
Charan Bandopadhya v. Kisto ilohun Bhatta-
cJiarjee, 1 C. W. N. 516. Chtjndee Coomar
Mdilerjee v. Secretaby of State for India

I. L. B. 27 Calc. 698
4 C. W. N. 586

( 6175 )

DIGEST OF CASES.

( 6176 )

JURISDICTION or CIVIL COURT— JURISDICTION OF CIVIL COURT—

contd. contd.

29. SAMBALPUR. i 30. SANADS—concR

1. Second &jppea,l— Jurisdiction —

Appeal — Sambalpur — Court to tvhich appeal lies —
Bengal and Assam Laws Act (VII of 190-5), ss. 2, 3,
6 — Bengal and North-West Provinces Civil Courts
Act {XII of 18S7) — Central Provinces Civil Courts
Act {II of 1904)— Bengal Act IV of 1906— High
Court, jurisdiction of. Where a suit instituted in
the Court of the Subordinate Judge of Sambalpur
was disposed of before the 16th of October 1905
when the Bengal and Assam Laws Act (VII of 1905)
came into force and an appeal was preferred to the
District Judge of Sambalpur after that date : Held,
that a second appeal from an order made by the
District Judge in the case lay to the High Court of
Bengal, and not to the Court of the Judicial Com-
missioner of the Central Provinces ; and that there
was nothing in Bengal Act IV of 1906 to effect the
jurisdiction of the High Court to entertain such
appeal. Harabati v. Satyabadi Behara (1907)
I. L. R. 34 Cale. 636

2. Jurisdiction —

Second Appeal — High Court, jurisdiction of —
Sambalpur — Bengal and Assam Laws Act {VII of
1906), s. 6. An appeal was preferred to the High
Court against the decision of the Divisional Judge
of Raipur, Central Provinces, disposing of an appeal
against the decision of the District Judge of Sam-
balpur, after the 16th of October 1905, on which
date the Bengal and Assam Laws Act (VII of 1905)
came into force, and the District of Sambalpur was
added' to the Province of Bengal by a Proclamation
of the Governor- General. On preliminary objec-
tions being taken that no second appeal lay in the
case under the provisions of s. 15 of the Central
Provinces Courts Act (II of 1904), and that the
second appeal, if any, lay to the Judicial Commis-
sioner of the Central Provinces under s. 6 of Act
VII of 1905 -.—Held, that although the Central
Provinces Courts Act (II of 1904) did not expressly
provide for a second appeal from the decision of the
Divisional Judge to the Judicial Commissioner, yet
such an appeal formerlv lay under the provisions of
s. 584 of the Code of Civil Procedure (Act XIV of
1882) to the Judicial Commissioner of the Central
Provinces, but now after the passing of the Bengal
and Assam Laws Act (VII of 1905), to the High
Court. Balbhadra v. Bhowani (1007)

I. L. R. 34 Cale. 853

30. SANADS.

— Suit to cancel or set aside

sanad as granted by ■mistake— Summanj
settlement — Sanad — Revocation of sanad — Garas —
Wanta—Mazmun Narva — Bhagdari. Wliere a
sanad by way of summary settlement of land
revenue has been granted by Government under
Bombay Act VII of 1863, Government cannot
reform or set it aside without the assent of all
parties interested therein. To do so would be an
assumption by Government of the function of a

Civil Court. A Civil Court cannot, on the ground
that Government has by mistake granted such a
sanad to a person not the owner of the land, reform
or set aside the sanad. S. 7 of Bombay Act VII of
1863 renders the quit-rent fixed by the sanad,
binding alike on Government and on the rightful
owner of the land, but the latter may recover the
land from the grantee of the sanad, subject to the
quit-rent fixed by the sanad, and payable to Govern-
ment; and such grantee will be declared to have
taken the sanad as a trustee for the rightful owner.
Quoere : Whether a Civil Court can give relief either
by reforming or cancelling such sanads, against
mistakes other than those relating to ownership
which may be found to exist in the sanads. DoL-
sasg Bhavsang v. Collector of Kaira

I. L. R. 4 Bom. 467

31. SERVICES, PERFORMANCE OF.

Suit to enforce services by-
barbers — Cause of action. A suit cannot be
maintained in the Civil (;!ourts to enforce the per-
formance of certain services by barbers. Rajkisto
Majee v. Nobaee Seal . . 1. "W. R. 351

32. SOCIETIES.

1. Suit to enforce admission as

member of a society. A suit will not lie
to force the defendants to admit the plaintiff into
their society. Radhoo Nissee v. Ram Junoo
NissEE 2 Hay 83

2. Suit for declaration of right

to be member of a society — Exclusion from
somaj — Beng. Reg. Ill of 1/93, s. 8. In a suit for
a decree declaratory of the right of a person to
the membership of a somaj (society), upon the
allegation that the other members have excluded
him from the somaj : — Held, that, as such exclusion
neither deprived him of caste nor affected any right
of property, it is not cognizable by the Civil Court.
The mem bers of a society a re the sole j udges whether
a particular person is entitled to continue as a
member or not. S. 8, Regulation III of 1793,
commented on. Sudharam Patar v. Sfdharam

3 B. L. R. A. C. 91 : 11 W. R. 457

3. Suit on account of exclu-

sion from invitation to dinners. Civil Courts
cannot compel Hindus, against their will, to ask
other Hindus , to their houses or their entertain-
ments. Joy Chtjnder Sirdar v. Ramchurn

6 W. R. 323

33. STATUTORY POWERS, PERSONS WITH.

Remedy by ordinary suit

barred— i/a^ms Forest Act {V of 1SS2), s. 10—
Procedure. Where by an Act of the Legislature
powers are given to any person for a public purpose

( 6177 )

DIGEST OF CASES.

( 6178 )

JUKISDICTION OF CIVIL COURT—

concld.

33. STATUTORY POWERS, PERSONS WITH

— concld.

from which an individual may receive injury, if
the mode of redressing the injury is pointed out
by the statute, the ordinary jurisdiction of the
Civil Courts is ousted, and in the case of injury
the party cannot proceed by action. Plaintiff sued
in a Munsif's Court to cancel the decision of a forest
officer confirmed by a District ,ludge under s. 10
of the Madras Forest Act, 1882, and to recover
certain land, a claim to which had been rejected
under the said section : — Held, that the Munsif had
no jurisdiction to entertain the suit. Ramachandka
V. Secretary of State for India

I. L. B. 12 Mad. 105

34. SURVEY AWARDS.

Suit to set aside survey-
award— 5e«-7. Reg. IX of 1833, .-•. 9. S. 9 of
Regulation IX of 1833 referred only to decisions of
punchayets, and did not bar a suit in the Civil Court
to set aside an award of survey authorities as null
and void. Raj Kishen Roy v. Surut Chutstder
Chtjckerbutty . . . .4 "W. R. 79
iKRAM-ooLEAHt;. Sheo Pershad . 2 Agra 340

SlKUNDAR AlI v. PuRWURUSH AlI

3 N. W. 132

35. TRESPASS.

Suit to have door closed on

account of apprehended trespass. Held, that
a suit for the closiug of a door on account of ap-
prehended trespass will not lie iu the Civil Courts.
Parum Sookh v. Sita Ram . . 2 Agra 119

JURISDICTION OF CRIMINAL COURT.

Col.

1. Generai, Jurisdiction . . . 6179

2. European British Subjects . . 6188

3. Native Indian Subjects . . 6194

4. Offences committed only partly in

ONE District —

(a) Generally .... 6195
(6) Abetment .... 6195
(c) Abetment of Waging War . 6197
{d) Adulteration . . , 6197
(e) Criminal Breach of Contract 6198
(/) Criminal Breach of Trust . 6198
{g) Dacoity .... 6198

(A) Emigrants, Recruiting under

False Pretences
{i) Escape from Custody
(?) Kidnapping .
VOL III

. 6199
. 6199

JURISDICTION OF CRIMINAL COURT

— contd.

Col.

4. Offences committed only partly in

ONE District — concld.

(k) Murder .... 6200

(l) Receivln-g Stolen Property . 6202

(m) Theft 6203

5. Offences committed during Jour-

ney 6204

6. Disputes concerning immoveable

property 6205

7. Offences under the Cattle Trespass

Act 6208

See Appeal in Criminal Cases— Acts.

I. L. R. 4 Calc. 667

I. L. R. 15 Bom. 505

See Central Provinces Tenancy Act

(XI OP 1898), ss. 45, 46, 47, 95.
See Commission — Criminal Cases.

I. L. R. 5 Bom. 338

See Criminal Procedure Code, 1898,
ss. 145, 192 (2), 529.

I. L. R. 36 Calc. 370

See Criminal Procedure Code, s. 531.

I. L. R. 30 Mad. 94

See Dispute reiating to Land.

I. L. R. 35 Calc. 774
See High Court, Jurisdiction of —

Criminal.
See Insanity . I. L. R. 2 Calc. 356
See Jurisdiction op Magistrates.
See Magistrate —

General Jurisdiction ;

Powers of IVIagistrates ;

I. L. R. 29 Calc. 885

Re-trial op Cases.

I. L. R. 29 Calc. 412

See Maintenance, Order op Criminal
Court as to . I. L. R. 25 All. 545

See Offence committed on the High
Seas . . 1 B. L. R. O. Cr. 1

7 Bom. Cr. 89

8 Bom. Cr. 63
I. L. R. 14 Bom. 227

I. L. R. 21 Calc. 782
See Possession, Order of CRnunAL
Court as to —

Cases in which Magistrate can
decide as to Possession

5 C. W. N. 105

Likelihood op Breach op the
Peace. I. L. R. 28 Calc. 446

See Proclamation. _ ^„ « , „/m
I. L. R. 35 Calc. 701

( 6179 )

DIGEST OF CASES.

( 6180 )

JURISDICTION OP CHIMIN All COUBT

— contd.

See Revision — Criminal Cases — Dis-
charge OF Accused.

I. li. R. 27 Bom. 84
See Sanction for Prosecution — Revo-
cation OF Sanction.

I. L. B. 30 Gale. 394

See Security for Good Behaviour.

I. L. B. 29 Calc. 455

See Supreme Court, Calcutta.

1 Moo. I. A. 67

See Tolls . I. L. B. 36 Calc. 986

See Witness — Criminal Cases— Summon-
ing Witnesses.

I. L. B. 30 Calc. 508 ; 508n

■ Magistrate can not split up

offences in order to give himself juris-
diction—

See Robbery . . 5 C. W. N. 372

in Native State —

See Foreign Jurisdiction Act, 1879
ss. 4, 6 AND 8. I. L. B. 26 Mad. 607

1. GENERAL JURISDICTION.

1. Presumption of jurisdiction

— Objection to jurisdiction. The High Court being
a Coxirt of superior jurisdiction, the want of juris-
diction is not to be presumed, but the contrary.
Where the High Court had jurisdiction to try a j^ri-
soner for the offence committed, if a charge had been
made against him by a person authorized to make
that charge, and the prisoner pleaded not guilty. —
Held, that proof need not be given that the officer
had authority to send up the charge. Objections to
the jurisdiction should be made before pleading to
the general issue. Queen v. Nabadwip Goswam.
IB. Ii. B. O. Cr. 15 : 15 W. B. Cr. 71 note
17 W. B. Cr. 36 note

-Besistanee of process of Civil

Court. The resistance of process of a Civd Court
is punishable, under the Code of Criminal Procedure
by a Court of criminal jurisdiction. In re Chun-
der Kant Chuckerbutty, 9 W. R. Cr. 63, overruled.
Queen v. Bhagai Dafadar

2 B. L. B. F. B. 21 : 10 W. B. Cr. 43
3. Questions of title— Construc-
tion of documents. It is at all times desirable that
questions of title should not be tried in Criminal
Courts, and more especially where such questions
depend on the construction of obscure documents, or
fall to be decided in reference to transactions of
which at the best but an imperfect record is pre-
served. Queen v. Kishen Pershad

2 N. W. 202

r 4. Special law, effect of, on

general jurisdiction— CV; //((»«/ breach of trust
by trustee of temple — Mad. Reg. VII of 1S17 — Act
XX of 1863. The ordinary criminal law is not ex-

JTTBISDICTION OF CBIMINAL COURT

— contd.

1. GENERAL JURISDICTION— co««(Z.

eluded by Regulation VII of 1817 or Act XX of
1863. Anonymous Case . I. L. B. 1 Mad. 55
5. Special law, jurisdiction un-
der, effect of Criminal Procedure Code on

— Criminal Procedure Code [Act X of 1HH2), s. 1.
The jurisdiction conferred by the Code of Criminal
Procedure (Act X of 1882) does not a£Ee3t any
special jurisdiction or power conferred by any law
in force at the time when the Code came into force
Queen-Empress v. Gustadji Bar,jokji

I. L. B. 10 Bom. 181

6. Order under Criminal Code

by executive oflB.cer — Power of Judicial Courts
to question the legality of such, order. Where an
executive officer makes an order or issues a notifica-
tion under the provisions of the Code of Criminal
Procelure, it is not within the province of judicial
authority to question the propriety or legality of
such order or notification until an attempt is made
to enforce the exaction of a penalty against a person
committing a breach of such order or notification.
It then becomes the duty of the judicial authority to
consider whether the order is properly made or not.
In the matter of the petition of Surjanaeain Dass.
Empress v. Surjanarain Dass

I, L. B. 6 Calc. 88

Obstruction to right of way

— Erection of building on public way. Where a party
residing on one side of a public lane encroaches
on the lane by building and narrows the passage
at that particular spot, so far as to cause the traffic
to pass over a portion of the land of the party resid-
ing on the opposite side of the lane, the remedy of
the latter is, by recourse to the Criminal Court, to
prevent the obstruction of the public thoroughfare.
If he does not do so, he has no cause of action
ao-ainst the other. Abdul Hye v. Ram Churn
Singh .... 11 W. B. 445

8. Suit for closing new road and

opening old one. In a suit for closing a new
road opened by the defendants through the land of
the plaintiff, and for opening an old road, which had
been closed by the defendant -.—Held, by Markby,
J., that the question of opening or closing a pubUc
road belongs to the Criminal Court, and not to the
Civil Court. Hira Chand Banerjee v. Shama
Charan Chatter.tee

3 B. Ii. B. A. C. 351 : 12 W. E. 275

9 Offence committed on the

high seas -7:.' ct- 13 Vid., c. 96—23 & 24 Vict.,
c. SS. An offence committed on the high seas, but
within three miles from the coast of British India, as
being committed within the territorial limits of
Britfsh India, is punishable under the provisions of
the Penal Code. The ordinary Criminal Courts of
the country have jurisdiction over such offences by
virtue of 12 & 13 Vict., c. 96, ss. 2 and 3, extended to
India by 23 & 24 Vict., c. 88. Where certain inhab-
itants of the village of Manon in the Thana district

( 6181 )

DIGEST OF CASES.

( 6182 )

JURISDICTION" OF CRIMINAL COURT

— contd.

1. GENERAL JURISDICTION— coaici.

«alliod out in boats and pnlled up and removed a
number of fishing stakes lawfully fixed in the sea
A\ithin three miles from the shore by the villagers of
a neighbouring village, it was held that a Magistrate
in the Thana district had jurisdiction over the
offenders ; and that the Penal Code was the sub-
stantive law applicable to the case. Reg. ?;. Kashya
Rama 8 Bom. Cr. 63

10. Conversion of

<)oods at foreign port entrusted to he carried from
and to a British Indian port — Stats. 12 di 13 Vict.,
c. 96, and 23 & 24 Vict., c. 8S. B entrusted \\-ith
rice at M (a port in British India) for conveyance
to C (also a port in Bitish India) took the rice to G,
a port in foreign territory, and there sold it. He
was convicted at M of criminal breach of trust as a
carrier under s. 407 of the Penal Code : — Held, that |
the Sessions Court at M had no jurisdiction to try the
offence under the Code of Criminal Procedure : Held,
also, that no offence was committed on the high seas
so as to give the Court jurisdiction under 12 & 13
Vict., c. 90, extended bv 23 & 24 Vict., c. 88.
Bapu Daldi v. Queen ", I. L. R. 5 Mad. 23

11 Jurisdiction in Tributary

Mehals — MoJiurhhunj — British India. A British
subject residing in Midnapore in Bengal, was
charged before the Maharajah of ]Mohurbhunj with
having committed the offence of defamation in
Mohurbhunj in the Tributary Mehals. On an
application made by the accused to the Magistrate
of Midnapore, objecting to be tried by the Rajah of
Mohurbhunj, the Commissioner of Cuttatk, who was
also Superintendent of the Tributary' Mehals,
directed that the case should be transferred to
Midnapore and tried by the Jlagistrate of that dis-
trict, who had the power of an Assistant Superinten-
dent 'of the Tributary Mehals. The accused, ^^-llile
being tried, moved the High Court to set aside the
proceedings at Midnapore on the ground that the
offence not having been committed within the
district, the Magistrate was acting ^^■ithout jurisdic-
tion : — Held, that the proceedings ^vere \\ithout
jurisdiction. Per Cunningham, J.— The Tributary
Mehals are now, as they weve in 1874, a portion o^f
British India, which the Government of India has
teen pleased to exempt from the ordinary law and
jurisdiction of the Coiu-ts, and to govern by means
of special officials and enactments. Whatever may
be the powers of Government as to Mohurbhunj,
those powers do not extent to empowering the
legally constituted tribunals of a British district to
follow in that district, and in the case of residents
in it, any procedure, and to exercise any other
jurisdiction than that created by the law. Per
Prinsep, J.— The territory of Mohurbhunj is a
part of British India, but at present not subject to
any laws not specially extended to it. The Tribu-
tary Mehals being British India, and being excluded
from the operation of all the laws in force in British
InJia, unless expressly extended to them, the orders

JURISDICTION,© F CRIMINAL COURT

— contd.

1. GENERAL JURISDICTION— confei.

of Government conferring powers on particular offi-
cers over criminal offences committed within those
mehals are vUra vires. Huesee Mahapatro v.

DiXOBUNDO PaTRO

I. Ii. R. 7 Calc. 523 : 9 C. L. R. 93

12.

Code of Crimi-

nal Procedure (Act X of 1872), s. 70~Foreign
Jurisdiction and Extradition Act (XXI of 1879)
s^9—Beng. Pegs. XII, XIII, and XIV of 1805.
The prisoners, residents of the district of Singhbhum,
a district in British India, Mere con\acted,
under s. 331 of the Penal Code, at Singhbhum, of an
offence committed in Mohurbhunj. Per Garth,
C.J., Pontifex and Morris, JJ._The territory of
Mohurbhunj is not withia the limits of British
India ; but, under the provisions of s. 9 of Act
XXI of 1879, a conviction in British India
for an offence committed without the limits
of British India is good. Per Mitter, J.~
Mohurbhunj is within the limits of British
India ; but seeing that the Tributary IMehals
constitute a " district " within the meaning of the
Criminal Procedure Code, and that the Superinten-
dent of those mehals has been vested with the
powers of a Sessions Judge under an order of the
Government of India, a conviction under the Penal
Code (having regard to the provisions of s. 70 of the
Criminal Procedure Code) ought not to be set aside.
I Per Prinsep, J.— Mohurbhunj is within the limits of
British India ; but the Acts which extend to British
India do not extend to Mohurbhunj. The territory
having been expressly placed beyond the ordinary
legislation, the law in force in British India cannot
come into operation there until this exemption has
been removed. Empress v. Keshub Mohajan.
Empress v. Udit Prasad

I. Ii. R. 8 Calc. 985 : 11 C. L. R. 241
13. _ — . Uncertainty as to the situa-
tion of the scene of offence. Criminal Proce-
dure Code (Act X of 1882), s. 182— Local area.
When there is an uncertainty as to whether a
particular spot, where an offence has been com-
mitted, is situated within one district or another,
the case is governed by s. 182 of the Criminal Pro-
cedure Code -(Act X of 1882), and the offence is
triable in the Court of either district. The expres-
sion '.' local area " includes, and was intended to
include a "district." Punardeo >Jar\in Sinoh
V. Ram Sarup Roy . I. L. R. 25 Calc. 858
2 C. W. N. 577

14.

Kheonjur-

^^ Local area'^ — Code of Criminal Procedure (Act
X of 1SS2), ss. 182 and 531. The Penal Code and
Criminal Procedure Code have no application to the
Tributary Mehal of Kheonjur, wliich is on precisely
the same footing in that respect as Mohurbhunj.
Certain persons, officers of the Maharajah of
Kheonjur, one of whom was a resident of the
Cuttack district, and the others residents of Kheon-
jur were charged before the Deputy JIagistrate of

9l2

( 6183 )

DIGEST OF CASES.

( 6184 )

JURISDICTION" OF CRIMIK-AL COURT JURISDICTION OF CRIMHsTAL COURT

— contd. —contd.

1. GENERAL JURISDICTION— cowW.

Tajpore m ith certain offences under the Penal Code.
They Mere convicted, and on appeal to the Sessions
Judge the conviction was upheld. It was found by .
the .Sessions Judge that the scene of the occurrence
vhicb gave rise tothe charges was within the territo- |
ry of Khconjur : — Held, that the Deputy Magistrate
and Sessions Judge had no jurisdiction to try the ,
case and that the conviction must be set aside, i
FeZrf, further, that ss. 182 and 531 of the Criminal ;
Procedure Code had no application to the case, i
The words " local area " used in s. 182 only apply ]
to a " local area " over which the Criminal Proce- j
dure Code applies, and not to a local area in a j
foreign country, or in other portions of the British j
Empire to which the Code has no application ; and |
similarly s. 531 only refers to districts, divisions, sub- !
divisions and local areas governed by the Code of j
Criminal Procedure. In the matter of Bichitba-
NTXSD Dass v. Bhtjggut Pebi. Jn the matter of 1

BiCHITKAKUND DaSS V. DUKHTA JaNA

I. L. R. 16 Calc. 667

15. Offence committed in for-
eign territory — Criminal Procedure Code, s. 188
— 'Trial without certificate of the Political Agent
— Magistrate who is also Political Agent, jurisdic-
tion of. A District Magistrate instituted criminal
proceedings in British India against a Native Indian
subject of the Queen, in respect of offences under
ss. 419, 467, and 114 of the Penal Code, said to have
been committed by him in French territory, without
a certificate under s. 188 of Criminal Procedure
Code. The accused was committed to the Sessions
Court : — Held, although the District Magistrate was
the Political Agent who might have certified under
Criminal Procedure Code, s. 188, that the proceed-
ings were void for want of the certificate, and the
commitment should be quashed. Qtjeen-Empeess
V. Kathapeettmal . . I. L. R. 13 Mad. 423

1. GENERAL JURISDICTION-^;o»feZ.

ing British protection in so far as by treaty, capitu-
lation, grant, usage sufferance, or other lawful
means, Her Majesty had jurisdiction at Zanzibar in
relation to such persons ; and that the prisoner,
being a British protected person within the meaning
of s. 4, cl. (6) of the Order, was amenable to the
jurisdiction of the Consular Court. Queen-
Empress V. Rego Moxtopotjlo

I. L. R. 19 Bom. 741

16.

Jurisdiction of the British

Consular Court at Zanzibar over foreign
subjects enjoying British protection — Order j
in Council, dated the 2hth Noventber 1884, s. (J — j
Greek suhjecU. The Greek residents at Zanzibar,
having been by international action placed under
British protection, are liable to the British criminal
law in force at Zanzibar. The accused, who was a
Greek under British protection at Zanzibar, was
convicted by the British Consular Court at Zanzibar
of culpable homicide not amounting to murder, and |
sentenced to ten years'*, rigorous imprisonment
under s. 304 of the Indian Penal Code (Act XLV of
1860). He appealed to the High Court of Bombay,
contending (inter alia) that he was a Greek subject,
and as such not liable to be tried by the Consular
Court : — Held, that it was competent to Her Majesty
to exercise jurisdiction in one foreign State over the
subjects of another foreign State ; that under s. 6,
cl. (h), of Her Majesty's Order in Council, dated the
29tli November 1884, the provisions referring to
British subjects were applicable to foreigners enjoy-

17.

Jurisdiction of Consular

Court over persons not resident within a
British Protectorate — Aiding the waging of
ivar against a friendhj power — Africa Orders in
Council, 1SS9, 1S92, 1SV3. Two natives of a Ger-
man Protectorate were convicted by the English
Consular Court of Uganda of aiding and abetting the
King of Unyoro in waging war against the King
of Uganda and the Queen-Empress under ss. 48
and 50 of the Africa Order in Council of 1889 as
supplemented by the Order of Council of 1892 and
1893. One of them was also convicted of slave-
dealing ; — Held, that the English Consular Coiu't had
no jurisdiction, inasmuch as the accused, even if
subjects of a Signatory Power, were not resident,,
and their offences were not committed within a
British Protectorate : Held, also, that the alleged
fact that the ' ' locus in quo " was in British military
occupation gave no jurisdiction to the Consular
Court. Qtjeen-Empeess v. Juma

I. li. B. 22 Bom. 54

18.

Criminal jurisdiction along

the railway through Indian Independent
States — Locality of crime — Illegal arrest on lands
occupied by the Hyderabad State Railway. The
authority for the exercise of criminal jurisdiction by
the Government of India upon lands within the
limits of the Hyderabad State Railway is derived
from a grant to that Government in 1887 by His
Highness the Nizam a.^ ruler of the territory. The
raiiwa}' lands remain part of his dominions. The
grant of civil and criminal jurisdiction contained in
the correspondence of that year between the
Nrzam's Minister and the Resident at Hyderabad is
expressed to be ' ' along the line of railway, as is the
case on other lines running through independent
States." Tins jurisdiction, notwithstanding any
words in the notification of the Government of
India of the 22nd March 1888 (which could not of
itself give any authority or add to that granted by
the Niazm), does not justify the arrest on the lands
of the Hyderabad State Railway of a subject of the
Nizam under the warrant of the Magistrate of a
district in British India, on a charge of a criminal
offence committed in British India, and unconnected
with the Hyderabad railway administration. The
mere presence of the accused on the railway lands,
over which criminal jurisdiction had been granted,
as above, was no legal ground for his arrest under the
warrant of the Court in British India, his offence,
if committed at all, not having been committed^on

6185 )

DIGEST OF CASES.

( 6186 )

JtmiSDICTION OF CRIMIWAL COUBT

— contd.

1. GENERAL JURISDICTION— cwiti.

those lands, and not having been connected with
the railway. Muhammad Yustjf-ud-din v. Queen-
Empress . . , I. li. R. 25 Calc, 20
L. R. 24 I. A. 137
2 C. W. N. 1

19.

Power of Indian Legisla-

ture—Jc« XXII of 1S69, s. 9 — Indian Councils
Act— 24 <L' 2J Vict., c. 67, s. 22—24 dh 25 Vict.,
c. 104, ss. 9, 11, 13 — Delegation, power of. Bj' Act
XXII of 1869 certain districts were removed from
the jurisdiction of the High Court, and by s. 5 the
administration of civil and criminal justice was
vested in such officers as the Lieutenant-Governor
of Bengal 'should appoint. By s. 9 the Lieutenant-
Governor was empowered to extend all or any of the
provisions of the Act to the Cossyah and .Jynteeah
Hills. By a notification in the Calcutta Gazette of
4th October 1871, the Lieutenant-Governor extend-
ed the provisions of the Act to the Cossyah and
Jynteeah Hills, and directed that the Commissioner
of Assam should exercise the powers of the High
Court in the civil and criminal cases triable in the
Courts of that district. The two i^risoners were
tried for murder in April 1876, and were on convic-
tion sentenced by the Chief Commissioner of Assam
to transportation for life. On appeal by the
prisoners to the High Court: — Held, by the majority
of a Full Bench (Garth, C. J., Macpherson and
PONTIFEX, J J., dissenting), that the High Court had
jurisdiction to entertain the appeal, and such
jurisdiction was not taken away by Act XXII of
1869. Per Curiam : The Governor General in
iCouncil had power by legislation to remove the
•districts"'from the jurisdiction of the High Court,
Per Jackson, Ainslie, and Markby, 7J. '(Kemp,
J., concurring) — The Governor General in Council
had no power to delegate his legislative functions to
the Lieutenant-Governor of Bengal in the way he
had done in Act XXII of 1869. The power of dele-
gation cannot be considered as validated by any long
course of practice, nor as sanctioned by the tacit re-
•cognition of Parliament ; Act XXII of 1869 is there-
■fore so far invalid. Per Macpherson, J. (Ponti-
FEX, J., concurring) — Such delegation is nowhere
■expressly prohibited, and does not bring the Act
under any of the restrictive provisions of the Indian
Councils Act. Per Garth, C.J., and Macpherson,
J. (Pontifex, J., concurring) — The power of
delegation now questioned had been exercised in
many cases for a series of years previous to the
passing of the Indian Councils Act, and that Act
(the framers of which must have been cognizant of
Buch course of practice) must be taken as impliedly
approving of and sanctioning such practice, which
it would otherwise have declared illegal. Per
Garth, C.J., Jackson, Markby, and Ainslie,//.
(Kemp, J., concurring) — The High Court has power
to question the validity of the Legislative Acts of
the Governor General in Council. Per Macpherson
J. (Pontifex, J., concurring) — The High Court has
CO such power if satisfied that the Act is not within

JURISDICTION" or CRIMINAL COURT

— corUd.

L GENERAL JURISDICTION-^onid.

any of the prohibitions of the Indian Councils Act.
Empress v. Burah

L L. R. 3 Calc. 63 : 1. C. L. R. 161

Held, by the Judicial Committee of the Privy
Council that the decision of the majority of the
High Court was erroneous and rested on a mistaken
view of the powers of the Indian Legislature. That
Legislature has powers expressly limited by the Act
of the'Parliament which created it, but has, when
acting 'within those limits, plenary powers of legis-
lation as large and of the same nature as those of
Parliament itself. When plenary powers of legisla-
tion exist as to particular subjects, whether in an
Imperial or Provincial Legislatiure, they may be well
exercised either absolutely or conditionally. Legis-
lation, conditional on the use of particular powers,
or on the exercise of a limited discretion, entrusted
by the Legislature to persons in whom it places con-
fidence, is not uncommon, and in many circum-
stances may be highly convenient. By the terms of
the Act 24 & 25 Vict., c. 104, the exercise of juris-
diction^in any part of Her Majesty's Indian terri-
tories by the High Courts was meant to be subject
to, and not exclusive of, the general legislative
power of the Governor General in Council. An
exercise of legislative authority by the Governor
General in Council, whereby any place or territory
is removed from the jurisdiction of the High Courts,
is one expressly contemplated by the Stat. 24 &
25 Vict., c. 104, and by the Letters Patent issued
under that statute. Empress v. Burah

I. L. R. 4 Calc. 172 : 3 C. L. R. 197
L. R. 5 L A. 178

20.

Trial by jury — Commis<'ioner

of Cooch Behar. The Commissioner of Cooch Beha r

had no power to hold a trial by jury in the Gowal-

para district. Queen v. Bhaoidiioxe Katchari

8 W. R. Cr. 53

Queen v. Khooderam . 8 W. R. Cr. 39

21. Offence committed on the

high seas — Jurisdiction — High seas — Procedure —
Penal Code {Act XLV of lSH0)—.37 a> 3S Vict,
c. 27, s. 3. A Presidency Magistrate has authority
to charge, convict and sentence, under the Indian
Penal Code (Act XLV of 1860), a person who has
committed an offence in a British ship during her
voyage on the high seas. The law applicable, both
as regards procedure and punishment, is the Indian
law. Kinu-Empekor v. Chief Officer op S. S.
" MusHT4iEi " (1901) . I. L. R. 25 Bom. 636

22. Offence committed out of

British India — Criminal Procedure Code, s.
ISS — Offence committed outside British India by
Native Indian suljcct of His Majesty — Certificate of
Political Agent not obtained before making inquiry.
Where an inquiry into an offence to which s. 188 of
the Code of Criminal Procedure was applicable was
commenced without the certificate provided for by
that section having been obtained : Held, that
the proceedings were void, and that the subsequent

( G187 )

DIGEST OF CASES.

( 6188 )

JURISDICTION OF CBIMIN AL COURT

— contd.

1. GENERAL JURISDICTION— cow/ri.

commitment to the Court of Session must be quash-
ed, notwithstanding that the necessary certificate
was in fact granted some days before the commit-
ment was made, though at the time of the commit-
ment being made it had not come into the hands of
the committing Magistrate. EiMrEEOR v. Kali
Chakan (1902) . . I. li. B. 24 All. 256

23. Information of a cogniza-
ble and a non-cognizable offence — Prosecu-
tion— Police reporting the case as non-cognizable —
Magistrate' s acceptance of the report — Magistrate'' s
svbseqtient order calling for a charge sheet from the
Police for the cognizable ofjence — Illegality. Where,
on an information having been lodged before the
Police charging the accused with a cognizable and a
non-cognizable offence, the Police reports that the
charge of the cognizable offence is false and the
Magistrate accepts the police-report and passes
orders accordingly, the Magistrate cannot subse-
quently order the police to send up the charge-sheet
for the cognizable offence, if there appears nothing
in the police-report or on the materials before the
Magistrate to support a charge of such an offence.
Where in such a case on the order of the Magistrate,
the police sends up a chai'ge-sheet for the cognizable
offence and proceedings are commenced against the
accused : Held, that the proceedings so taken are
bad and ought to be quashed. Mokami.ii Das v.
Er.rPEROR (1906) . . . 11 C. W. W. 832

24. Appeals — Criminal Procedure

Code, ss. 408, 436 — Jurisdiction — Appeal from
First-class Magistrate lies to the Sessions Court,
within ivhose jurisdiction the Court of the Magistrate
ordinarily sits — ' Situate,' meaning of. The Court
of Sessions to which appeals lie from Magistrates of
the First-class under s. 408 of the Code of Criminal
Procedure in the Court of Sessions within the local
limits of whose jurisdiction the Court of such
Magistrate ordinarily sits, whether the offence be
committed within such local limits or not. The
word ' situate ' in s. 435 of the Code of Criminal
Procedure refers to the place where the inferior
Courts mentioned therein ordinarily sit. The
principle laid down in s. 435 in regard to revisional
powers, must, in the absence of any indication to
the contrary in the Code, be followed in the case of
appeals under s. 408. Valia Ambu Poduval v.
Emperor (1906) . . I. L. R. 30 Mad. 136

25. Criminal Procedure Code

(Act V of 1898), s, 14:4:— Jurisdiction of Magis-
trate— Interloctdorij orders — Pule issued by High
Court — Seisin of case — Extension of time — Rived
hats. A Magistrate cannot by passing succes-
sive orders under s. 144, Criminal Procedure
Code, extend the operation of an order indirectly
beyond the time limited by sub-s. (5) of s. 144.
Wliere the first and initial order passed by a
Magistrate was in substance and form an order
under sub-s. (2) and forbade certain persons from
establishing a hat at a certain jjlace and gave a

JURISDICTION OF CRIMINAL COURT^

— contd.

1. GENERAL JURISDICTION— concW.
vague direction to them forbidding interference
with the trade of another hat : Held, that the
order was irregular and vague and could not stand.
As long as an order under s. 144 has legal operation,
no intermediate or interlocutory order not contem-
plated by sub-s. {4) can be passed. WTien the
High Court has issued a rule in any case, it takes
full seisin of the case, and it is the High Court
alone that can pass ad interim orders in the case.
The Magistrate against whose order the rule is
issued has no such jurisdiction. The most appro-
priate section of the Code to deal with cases of
rival hats which ma 3^ cause a breach of the peace is
s. 107, Criminal Procedure Code. Satish Chunder
Roy v. Emperor (1906) . . 11 C. W. N. 79-

26. Security to keep the peace

— District Magistrate — Appellate Court, power of^ to
direct security to keep the peace in conviction by a
second or third class Magistrate — Criminal Proce-
dure Code (Act V of 189S), s. 106 [3). An Appel-
late Court cannot exercise the power given by s.
106 (5) of the Criminal Procedure Code, where the
conviction has not been by a Court specified in
sub-s. (i) Muthiah Chetii v. Emperor, I. L.
R. 29 Mad. 190 ; Paramasioa Pillai v. Emperor,.
I. L. R. 30 Mad. 48 ; and Mahmud Sheikh v.
Aji Sheikh, I. L. R. 21 Calc. 622, referred to.
Emperor v. Momin Malita (1908)

I. L. R. 35 Calc. 434

27.

Competence of Magistrate

I who issued process, but did not take cog-

j nizance or direct a local investigation, to
hear appeal on conviction — Trial of Summons
Case — Conviction of Assaidt and mischief on

j summons for Criminal Trespass — Transfer — Irregu-

1 larity — Criminal Procedure Code {Act V of 1898), ss.
192, 243, 244, 246, 629 (/), 556. Where an accused
has been summoned for criminal trespass, it is open
to the trying Magistrate, under s. 246 of the Ciimi-

I nal Procedure Code, to convict him of assault and
mischief without re-opening the trial and following
the procedure laid down in ss. 243 and 244. Mudoo-
soodun Sha v. Hari Dass Dass, 22 W. R. Cr. 40,
referred to. A Magistrate who did not take cog-

l nizance of a complaint or order a local investiga-

.; tion but, acting as the officer in charge of the stidder
sub-division, directed the issue of summonses,

I holding that the investigating Magistrate had not
given satisfactory reasons for recommending the
dismissal of the complaint without, however, ex-
pressing any clear opinion hostile to the accused, is-

I not incompetent, under s. 556 of the Criminal Pro-
cedure Code, to hear the appeal on conviction of the
accused. The irregularity of transferring a case,

' when the Magistrate is not empowered under s. 192
to do so is cured by s. 529 (/). Dasarath Rai v.

j Emperor (1909) . I. li. R. 36 Calc. 869

2. EUROPEAN BRITISH SUBJECTS.

1. Sessions Court, Bellary—

Treaty by Rajah of Sundoor with Qovernment. The

( 6189 )

DIGEST OF CASES.

( 6190

jimisDicTiON or criminal court

— contd.

2. EUROPEAN BRITISH SUBJECTS— coj»<c?.

Sessions Court of Bellary has no jurisdiction under
the Penal Code to try native subjects of the jaghir-
dar, or Rajah, of Sundoor, for offences committed in
the plateau of Ramandoorg upon native inhabitants
of the village of Ramandoorg. Ramandoorg is a
portion of the territory of Sundoor, and the Rajah
is in the position of a native chief or ruler. A treaty
entered into by the late Rajah of Sundoor with
the Government of Madras contained the following
stipulation : " It being probable that, as European
officers take up their residence on the said hill, many
servants, tradesmen, private persons, and others will
reside there, 1 have relinquished to the Company's
Government the police and magisterial functions of
maintaining peace, and trying and punishing
offences committed by such people, such as violence,
petty crimes, thefts, murder, etc. The Collector is
to have jurisdiction in such matters." ^eW, that
this treaty did not give the Sessions Court of Bellary
jurisdiction, but it surrendered exclusive criminal
jurisdiction over a limited class of persons, namely,
Europeans and their servants, and all other resident
persons, not native subjects of the Rajah, and left
the Government unfettered to provide in the way
they deemed right for the trial and punishment of
offences committed by such persons. Queen v.

Vencanka 3 Mad. 354

Power to legislate foi- Eu-

ropean British subject in mofussil— Ze(//.i/tt
ture. Power of~Bom. Act VII of JSHT {District
Police Act)— 3 4- 4 Will. IV, c. 123—53 Geo. Ill,
c. 15.5, s. 105—37 Geo. Ill, c. 142, s. 10. Although
the old East India Company had power, under
the Charters of Charles 11, to make laws affecting
British-bom subjects, yet this power ceased in A.D.
1709, when its Charters were surrendered to Queen
Anne. From that date down to the passing of the
3 & 4 Will. IV, c. 123 (with the exception of a
limited power of legislating as regarded the local
limits of the presidency town), no authority ex-
pressly granting power to the East India Company
or the Indian Government to legislate for British-
born subjects can be found. Semhle : That neither
the East India Company nor any Indian Govern-
ment (with the like exception) possessed such
power from the year 1709 till the passing of the
3 & 4 Will. IV, c. 122. With the exception of
offences made punishable by the 53 Geo. Ill, c. 155,
s. 105, by Justices of the Peace, the Recorder's
Court had, by virtue of the 37 Geo. Ill, c. 142, s. 10,
exclusive criminal jurisdiction over British-born
subjects throughout the Bombay Presidency, and
the same exclusive jurisdiction was continued to the
late Supreme Court, and is now exercised by the
High Court, with the like exception, and some
further exceptions introduced by subsequent Acts
of the Government of India. The Bombay District
Police Act (VII of 1867), passed by the Governor of
Bombay in Council for making laws and regulations,
is ultra vires in so far as it confers criminal jurisdic-
tion upon Magistrates in the mofussil, being also

JURISDICTION OF CRIMINAL COURT

— contd.

2. EUROPEAN BRITISH SUBJECTS— conid.

Justices of the Peace, over British-born subjects,
aa it thereby affected the Acts of Parliament under
which the High Court is constituted, and interferes
with the criminal jurisdiction which that Court
possesses over British-born subjects in the
mofassil, which jurisdiction is exclusive except in so
far as it is limited by Stat. 53 Geo. Ill, c. 155, s. 105,
and certain subsequent Acts of the Government of
India. Reg. v. Reay . . 7 Bom. Cr. 6

3. Power to try European

British subject— Criminal Procedure Code
{Act X of 1S72), ss. 71-8S— Power of Indian Legida-
tvre — 24 & 25 Vict., c. 67 {Indian Covncils Act),
ss. 22 and 42. A European British subject in the
mofussil was convicted by a jNIagistrate under the
provisions of Ch. VII of Act X of 1872. He ajipealed
to the High Court on the ground (//ifer «/ a) that
the Magistrate had no jurisdiction to try the case,
inasmuch as the Governor General in Council had
not the power, under 24 &25 Vict., c. 67, to subject
a European British subject to any jurisdiction other
than that of the High Court, and therefore the pro-
visions of Act X of 1872, under ^\hich the prisoner
had been tried, were ultra vires and illegal : — Held,
that the jurisdiction of the High Court as given by
the Letters Patent is subject to the legislative
poAvers of the Governor General in Council, and
therefore the Magistrate had jurisdiction to try the
case. Queen v. Meares

14 B. li. B. 106 : 22 W. R. Cr. 54

Criminal Proce-

dure Code, 1882, s. 4, cl. {i), and ss. 453 and 454
■ — Privilege — Waiver — Jurisdiction of High Court
over European British subjects in Sind — Bo7n.
Act XII of 1866. Where a European British sub-
ject waives his right to be dealt with as such by the
Magistrate before whom he is tried, he therein- loses
all the benefits of the special procedure provided for
him under Ch. XXXllI of the Code of Criminal Pro-
cedure (Act X of 1882), including the right to have
the proceedings in his case reviewed by a Presidency
High Court, if another Couit exercises the highest
re\isional jurisdiction under the Code in cases other
than those against European British subjects in the
place A\here he is tried. The definition of "High
Court " in s. 4, cl. ((), of the Code of Criminal Pro-
cedure (Act X of 1882) must be read with reference
to the " special proceedings "' against European
British subjects contem])lated in Ch. XXXIII, and
not with reference to proceedings general!}' against
Europeans, includiu'^ jiroceedings in which they
\\aive their rights under that chapter. If therefore
in any particular case the special rules contained
in Ch. XXXlll of the Code cease to have any
application, the definition of " High Court " in the
former part of s. 4, cl. (i), ceases also to have any
application to such a case. The definition in the
latter part of the section then prevails, and the case
falls within the category of " other cases " to which
that part of the section apphes. The accused, a

( 6191 )

DIGEST OF CASES.

( 6192 )

JURISDICTION OP CHIMIN Ali COUBT

— contd.
2. EUROPEAN BRITISH SUBJECTS— confci.
European British subject, was tried before the City
Magistrate of Karachi and convicted of criminal
breach of trust under s. 409 of the Indian Penal
Code, and sentenced to six months' simple imprison-
ment. At the trial, he waived his right to be tried
as a European British subject : Helrl, that the
accused was not subject to the revisional jurisdii-
tion of the High Court. The accused not having
been tried under the special procedure laid down
for the trial of European Briti^sh subjects, the
Sudder Court in Sind, which, under Bombay Act
XTI of 1866, was the highest Court of Appeal^ in all
civil and criminal matters in Sind had the revi-ional
powers of a High Court in the present case by virtue
of the latter part of s. 4, cl. (i), of the Code of Cri-
minal Procedure. Queen-Empress v. Gkant

I. Ii. R. 12 Bom. 561

5. Jurisdiction of

High Court — Foreign Jurisdiction Act, 1879, Ch.
II — European British subjects in Bangalore — ■
Justices of the Peace for Mysore. The civil and
military station of Bangalore is not British territory,
but a part of the Mysore State, and the Code of Cri-
minal Procedure is in force therein by reason of
declarations made by the Governor General in
Council in exercise of powers coiferred by the
Foreign Jurisdiction and Extradition Act, 1879.
Justices of the Peace for the State of Mysore are
also Justices of the Peace for Bangalore, and both
the Civil and Sessions Judge and the District
Magistrate of Bangalore, being such Justices of the
Peace, are, by virtue of s. 6 of the said Act, subordi-
nate to the High Court at Madras. The High Court
has power, therefore, to transfer the trial of a
European British subject from the Court of the
District Magistrate of the civil and military station
of Bangalore to the Court of a Presidency Macristrate
at Madras. In re Hayes . I. L. B. 12 Mad. 39

6. . Criminal Proce-
dure Code, (Act X of 1S72), ss. 74, S3. B, who
was charged before a Magistrate who was competent
to enquire into a complaint against a European
British subject with, an oSence triable by him,
claimed to be dealt with as a European British
subject. B did not state the grounds of such claim.
The Magistrate did not decide whether B was or was
not a European British subject but proceeded with
the case, dealing with him as if he were not a
European British subject, and sentencing him to
rigorous imprisonment for one year and to a fine.
On appeal by B. the Histh Court remanded the case
to the Magistrate in order that he might decide, in
the manner directed bv s. 8') of the Criminal Pro-
cedure Code, whether B was or was not a European
British subject. The Magistrate having decided
that B was a European British subject : — Held,
that this being so, and it appearing that the Magis-
trate had dealt with B as other than a European
British subject, JS's trial was void for want of
jurisdiction. Empeess v. Berrtll

I. L. R. 4 All, 141

JURISDICTION OF CBIMHSTAL COUBT

— contd.

2. EUROPEAN BRITISH SUBJECTS— confi.

7. —^ . European British

soldier — Jurisdiction of Militant authorities — Beng.
Regs. XX of 1825 and XIII of 1833—4 Geo. IV,
c. 81. A British-born European soldier in a regi-
ment stationed at Hazaribagh was committed by
the Deputy Commissioner of that place to the High
Court on a charge of the murder of a comrade.
Upon an application to have the commitment
quashed and the prisoner handed over to the Mili-
tary authorities in accordance with Regulation XX
of 1825, it was held that the provisions of Regula-
tion XX of 1825 as to the course to be taken in
dealing with European British subjects who have
committed offences were rescinded in Hazaribagh
by Regulation XIII of 1833, s. 3, as being rules for
the administration of criminal justice within the
meaning of that section. Assuming the regulation
was in force : — Held, that 4 Geo. IV, c. 81, and
Regulation XX of 1825, though they gave jurisdic-
tion to the Military authorities in certain cases, did
not wholly exclude the jurisdiction of the Civil, as
opposed to the Military, Courts, and that, inasmuch
as the proceedings before the Deputy Commissioner
had been taken at the request of the Military
authorities and assented to by them, such proceed-
ings were not void, and the commitment was valid.
Queen v. Jackson .

13 B. Ii. fe. 474 : 22 W. B. 20

8.. Mutiny Act, s. 101

— Offence committed by British soilder. S. 101
of the Mutiny Act does not deprive the Civil (as op-
posed to Military) Courts of jurisdiction over British
soldiers committing offences within the territorial
limits of those Courts, nor render the exercise of
their jurisdiction dependent upon the sanction of
the Commander-in-Chief. The section is merely
permissive of a military trial being held. Empress
V. Maguire

I. Ii. B. 5 Calc. 124 : 4 O. L. E. 432

9. Proof of status —

Question of fact. Whether or not an accused is a
European British subject is a matter of fact to be de-
termined judicially by the Court of Session on the
evidence, in the event of the prisoner raising that
question. Queen v. Parks . 10 W. B. Cr. 6

10. Proof of status.

The prisoner pleaded that he was a British-born
subject, and therefore not amenable to the jurisdic-
tion of the Sessions Judge of Tellichery, by whom
the prisoner had been convicted of criminal misap-
propriation. The evidence showed that the prisoner
was the legitimate great-grandson of John Turnbull
said to have boon a sprj;eant in the service of the
King or of the East Ind'a Company, but was in-
sufficient to establish a lawful marriage between him
and a native Christian woman by whom he had a
son, and the evidence as to his nationality was also
incomplete : — Held, that the plea to the jurisdiction
was not made out. Queen v. Turnbull

6 Mad. 7

( 6193 )

DIGEST OF CASES.

( 6194 )

JURISDICTION OP CHIMIN' AIj COURT

— contd.

2. EUROPEAN BRITISH SUBJECTS— con<(i.

11.

Offence ccmmit-

: within the. territories of Native Prince in alliance
with Governm"Mt. The defendant, a European
British subject, was charged with having; commit ed
thrcp offences at Pangalore, punishable under t le
Penal Code : — Held, that the High Court has the
same crimin-il jurisdiction which the late Supreme
Court had, and that, Bangalore being within the
territories of the Maharajah of M^'sore, a Native
Prince in alliance with the Government of Madras,
the defendant was subject to the jurisdiction of the
High Court in respect of criminal offences committed
in the territory of Mvsore. Reu. r. Watkins

2 Mad. 444

12.

Madras Police

Act {XXIV of 1859), s. 4S. A European British
subject was convicted by the Cantonment Magis-
trate under s. 48 of the Police Act (Act XXIV of
1859) : — Held, that the Magistrate had no jurisdic-
tion. Anonymous Case . . 5 Mad. Ap. 25

13.

Judicial Com-

missioner of Mysore. A European British subject
committed by a Justice of the Peace in Mysore for
trial by the Judicial Commissioner of Mysore on a
charge under s. 348 of the Penal Code was convicted
on 10th March 1880 : — Held, that the commitment
and conviction were illegal. Quaere : Whether,
when a European British subject in Mysore, being a
Christian, is accused of an offence not punishable
with death or transportation for hfe, a commitment
to the High Court at Madras would be legal. Ward
V. Queen . . . . I. L, R. 5 Mad. 33

14. . Justice of the

Peace — Illegal conviction. Where a Magistrate,
being also a Justice of the Peace, convicted a British-
born subject of mischief under s. 426 of the Penal
Code, the High Court annulled the conviction and
sentence, and directed the accused to be committed
to take his trial before the High Court, unless the
complainant withdrew the charge under s. 271 of the
Criminal Procedure Code. Reg v. Wells

7 Bom. Cr. 1

15.

with special powers — Ss.

Officer invested

30, 34, and 20'), Code
of Criminal Procedure {Act X of ISS2). An officer
invested with special powers under s. 35 of the Code
of Criminal Procedure should rarely, if ever, try a
case himself under s. 209 of the Code of Criminal
Procedure, where it appears from some of the evi-
dence that the accused might have been charged
with an offence beyond the jurisdiction of the
Magistrate to take cognizance of. Empress v.
Paramananda

I. L. R. 10 Calc. 85 : 13 C. L. R. 375

16. Criminal Pro-
cedure Code, s. 4'>1 (/) — Right of European British
ftibject to be tried by a jury — Such right claimable at
any time before accused has entered upon his defence
notwithstanding previous waiver. One Sullivan was

JURISDICTION OF CRIMINAL COURT

— contd-

2. EUROPEAN BRITISH SUBJECTS— concW.

sent for trial to the District Migistrate of M33rut,
the offence alleged against hira being one under
s. 354 of the Indian Penal Code, i.e., a warrant case.
At the outset of the proceedings the accused was
asked whether he wished to be tried by a jury, and
replied in the negative. A charge wis fram3d
against the accused, and at his request certain
witnesses who had been examined for the prosecu-
tion were ordered to be recalled for cross-examina-
tion. After the charge was framed, but before the
accused had entered upon his defence, an applica-
tion for a jury was presented on behalf of the
accused. The Magistrate disallowed this applica-
tion : Held, that the fact that the accused, before
the trial had begun, had stated that he did not
wish for a jury, did not prevent him from after-
wards claiming a jury within the time allowed by
s. 451 (2) of the Code of Criminal Procedure, and
that the Magistrate was wrong in disallowing the
apphcation. Emperor y. Sullivvn (1902)

I. L. R. 24 All. 511

17. . Court of Magistrate of

Tellieliery. fne Joint Migistntj of LYUichery

has no jurisdiction to try a resident of Mysore for

criminal acts done in Mysore. Anonymous Case

6 Mad. Ap. 3

3. NATIVE INDIAN SUBIEGTS.
Native Indian subjeat of

Her Majesty— CrjVremi^ Procedure Code {Act X
of 18S2), s. 18S — Offence committed by an alien
outside British India — Jurisdiction of Courts in
British India to try such an offence. The accused
was Talati of Kaloi in British territory. His family
belonged to the village of Bakrol in the Biroda
State. His father entered the service of the British
Government and hved almost entirely at Kalol, but
he does not appear to have given up his intention of
returning to his family residence at Bakrol. The
accused was born at Dubhai in the Baroda terri-
tory. He was educated partly at Kolal and partly
at Baroda. He entered the Revenue Survey De-
partment in the Ranch Mahals. His services
were lent by the British Goveram3nt to the State
of Cambay. He was charged with taking bribes
while serving at Cambay. He was tried and con-
victed by the first "class Magistrate of Ahmeda-
bad within whose jurisdiction he was found and
arrested. The Sessions Judge reversed the con-
viction on the ground that the Magistrate had no
jurisdiction to try the accused: Heli, that the
accused was not a " Native Indian subject of Her
Majesty" within the meaning of s. 188 of the
Code of Criminal Procedure ; and though as a
" servant of the Queen " he was subject to pinish-
ment under s. 4 of the Penal Code, the Magis-
trate of Ahmedabad, in whose jurisdiction he was
"found," had no jurisdiction under that section
to try him for an offence committed in a foreign

( 6195 )

DIGEST OF CASES.

( 6196 )

JUETSDICTION OF CBIMINAL COURT

— contd.

3. NATIVE IKDIAN SUBJECTS— concU

State. Per Parsons, J. — The expression ' ' Native
Indian subject of Her Majesty " in s. 188 of the
Code of Criminal Procedure (Act X of 1882) must
be construed strictly, and cannot be held to include
" servants of Her Majesty." Queen-Empress v.
Natwarai . . . I. li. B. 16 Bom. 178

4. OFFENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT.

(a) Generally.

1. _ Offence begun in one place

and completed in another — Stat. 9 Geo. IV,
c. 74, s. 56. S. 56 of the Stat. 9 Geo. IV, c.74
(apjjlying and extending to the British territories
in India the provisions then recently made for
England with respect to offences committed in
two different places or partially committed in one
place and accomphshed in another) applies only to
the cases of persons amenable to the Supreme Court
at Calcutta begirning to commit offences in one
place which are afterwards completed in another,
and not to a case where the persons committing the
offence were not , amenable to the said Court, and
where the whole offence which has been committed
was within one jurisdiction. The term " within
the limits cf the Charter of the said United
Company," construed to mean within the limits of
the Trading Charter of the East India Companv.
Nga Hoong v. Queen . 4 W. B. P. C/ 109
7 Moo. I. A. 72

Offence committed in British

territory, instigated by foreign subject
resident in foreign territory — Criminal Pro-
cedure Code, 1S72, s. 66. Where a foreign
subject, resident in foreign territory, instigated
the commission of an offence which in conse-
quence was committed in British territory : — Held,
that the instigation not having taken place in any
district created by the Code of Criminal Procedure
the instigator was not amenable to the jurisdiction
of a British Court estabhshed under [that Code,
s. 66. Reg. v. Pirtal . . 10 Bom. 356

3. Acts done partly within and

partly without British territories— O^cwce
under Penal Code. A person who is admittedly
a subject of the British Government is liable
to be tried by the Courts of this country for acts
done by him, whether wholly within or wholly with-
out, or partly within and partly without, the British
territories in India, provided they amount to an
offence under the Penal Code. Queen v. Ahmed-
ooLLAH . , . . 2 W. E. Or. 60

(b) Abetment.

4. Abetment in British India

of an offence committed in foreign terri-
tory not an offence under the Penai Code —

JURISDICTION OP CRIMINAL COURT

— contd.

4. OFFENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT-^confeZ.

(b) Abetment — contd.

Abetment of murder — Rioting — Penal Code {Act
XLV of 1860), ss. 109, 115, 147, and 302— Criminal
Procedure Code {1S82), s. 188. An abetment in
British India by a British subject of an offence
committed in foreign territory is not an offence
punishable under the Indian Penal Code (XLV of
1860), and cannot therefore be tried by a Court in
British India. Begina v. Elmstone, 7 Bom. H. C.
Cr. 89, and Empress v. Moorga Chetty, I. L. R. 5
Mad. 338, followed. The accused, a Native Indian
subject of Her Majesty, was committed to the
Court of Session for abetting the commission of
murder or of rioting under ss. 302 and 147 of the
Indian Penal Code. The alleged abetment con-
sisted of words spoken in British territory by the
accused inciting certain Portuguese subjects to
kiU one Bhana, if he attempted to remove the
produce of certain lands situate in the Portuguese
territory of Daman. A disturbance afterwards oc-
curred at Daman in connection with this matter, in
which one man was killed and another wounded.
Thereupon the Governor General of Portuguese
India moved the Government of Bombay to bring
the accused to justice as the instigator of the
murder. The Government of Bombay, being of
opinion that s. 188 of the Code of Criminal Proce-
dure (Act X of 1882) was applicable to the case,
passed a Resolution in the Political Department
directing the District Magistrate to take the neces-
sary action in the matter. The District Magistrate
thereupon committed the accused to the Coiurt of
Session on a charge of abetment of murder or of
rioting : Held, quashing the commitment, that the
alleged abetment was not an offence punishable
under the Indian Penal Code, and that therefore the
Sessions Corurt had no jurisdiction to try the ac-
cused : Held, also, that s. 188 of the Code of Ciiminal
Procedure had no application to the present case,,
the alleged offence of abetment not having been
committed outside British India. Queen-Empress
V. Ganpatbao Ramchandea

I. L. E. 19 Bom. 105

5. Offence committed out of

British India— Pemi Code {Act XLV of U60),
ss. 108A, 372 — Disposing of a minor for immoral
purposes — Offence not triable except with the cer-
tificate of Political Agent or sanction of Govern'
ment — Criminal Procedure Code {Act V of 1898),
s. 188. A minor girl under the age of sixteen years
was taken by accused No. 1, under the direction of
accused No. 2 from Sholapur to Tuljupur (in the
Nizam's territory), and there dedicated to the
goddess Amba, with intent or knowing it to be
likely that the minor would be used for purposes of
prostitution. The District Magistrate of Sholapur
convicted accused No. 1 of an offence under s. 372
and accused No. 2 of abetment of the offence under
ss. 372 and 108A of the Indian Penal Codp, and

( 6197 )

DIGEST OF CASES.

JURISDICTION" OF CRIMIN-AIi COURT

— contd-

4. OFFENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT— comic?.

(6) Abetment — concld.

sentenced them each to six months' rigorous
imprisonment : Held, that, as the offence of the
disposal of the minor took place out of British India,
the Magistrate had no jurisdiction to try the offence
in the absence of a certificate of the Political Agent
or the sanction of the Local GrOvernment as required
by s. 188 of the Code of Criminal Procedure (Act V
of 1898) : Hekl, also, that, as no offence was com-
mitted in British India, accused No. 2 was not
guilty of abetment, and s. 108A of the Penal Code
had not application to the present case. Mere
intention not followed by any act cannot constitute
any offence, and an indirect preparation which does
not amount to an act which ami unts to a com-
mencement of the offence does not constitute either
a principal offence or an attempt or abetment of the
same. Tlie intention of either of the accused while
they were staying at Sholapur did not constitute any
offence, and their removal 'svith the girl to TuljapuB
did not by itself constitute an abetment. Queen-
Empress V. Baku . I. L. R. 24 Bom, 287

Charge of abetment of wag-

ing war against the Queen— O^ejice committed
in Cu cutta tried at Patna. Where the prisoner was
charged with having, at Calcutta, abetted the
waging of war against the Queen, and was tried at
x\w Sessions Court of Patna it was held that the
Court of Session at Patna had jurisdiction to try him
because he was a member of a conspiracy, other
members of which had done acts \vithin the district
of Patna in pursuance of the original concerted plan,
and with reference to the C(.mmon object. The
Court of Patna had jurisdiction also, because the
prisoner had sent money from Calcutta to Patna by
hundis, and until that money reached its destination
the sending continued on the part of the prisoner.
Queen v. Ameer Khan

9 B. L. R. 36 : 17 W. R. Cr. 15

[d) Adulteration.

Adulteration of cotton —

sion of cotton adulterated in foreign territory
— Cotton Frauds Act, .s.v. t, and 14. Cotton >upposed
to have been adulterated in foreign territory was
seized in British territory : Held, that the Magis-
trate of the place where the cotton was seized had
jurisdiction to try the offender, as the effect of the
new Cotton Frauds Act (Bombay), No. VII of 1878,
8s. 6 and 14, was to make the possession of " cotton
liable to confiscation " punishable with fine, and it
is immaterial where the adulteration takes place.
Empress v. Khimchand Narayan

I. L. R. 3 Bom. 384

JURISDICTION OF CRIMINAL COURT

— contd.

4. OFFENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT— <;o7if(?.

(e) Crtminal Breach of Contract.
Contract made in foreign

territory to be performed in British terri-
tory— Breach — Arrest in foreign territory — Act
XIII of 1S59. B, having contracted in foreign
territory to labour for S in British territorj', broke
his contract. He was arrested in foreign territory,
brought into British territory, prosecuted under Act
XIII of 1859, and ordered to perform the contract.
Held, that the Court had no jurisdiction. Siddha v.
BiLiGiRi . . . I. L. R. 7 Mad. 354

9. Breach of contract to labour

in foreign territory. J', having received an
advance ot money from G, contracted to labour for
him in foieign territorj-. Having broken the con-
tract, F was prosecuted under Act XIII of 1859,
ordered to repay, and sentenced to imprisonment
in default. Held, that the order was illegal as
ha vine; been made without jurisdiction. Gregory v,
Vadakasi Kangani . . I. L. R. 10 Mad. 21

See Siddha v. Biligiri . I. L. R. 7 Mad. 354
(/) Criminal Breach of Trust.

10, Liability of native Indian

subjects for offences committed out of
British India — Criminal Procedure Code, 1882,
s. ISS. Tlie accused were charged under s. 407 of
the Indian Penal Code (Act XLV of 1860) with
committing crimmal breach of trust in respect of
certain property entrusted to them as carriers. They
were all native Indian subjects of Her Majesty.
The offence was alleged to have been committed in
Portuguese territory, and they were found in a place
in British territor\\ Held, that under s. 188 of the
Criminal Procedure Code (Act X of 1882) the
accused could be tried in the place where they were
found. Queen-Empress v. Daya Bhima

I, L, R. 13 Bom. 147

11_ Place where consequence

of act ensued— 1';-< »,//(»/ Proccdur.^ Code (isyj),
s,. 119 and i:i5— Penal Code {Ad XLV of 1S60),
s. 408. B, an employe of a company the office of
\\hich was at Cawnpore, was charged with the
offence punishable under s. 408 of the Penal Code.
The complainant alleged that B, being m charge, on
behalf of the company at a place in Bengal, of
certain goods belonging to the company, and bemg
ordered to return the said goods to Cawnpore, never
did so, and failed to account for the goods, or their
value, to the loss of the company. Held, that, on
the statement of the case by the complainant, the
Coiu'ts at Cawnpore had juri.«diction to enquire
into the charge, inasmuch as the consequence of Bs
acts, namely, loss to the company, occurred in
Cawnpore. Queen-Empress r. O'Brien

^ L L. R. 19 All, 111

ig) D.\coiTY.
Dacoity committed out of

12,

British territory — Concealment of property

( 6199 )

DIGEST OF CASES.

( 6200 )

JUBISDICTION OP CRIMINAL COURT

; — contd.

4. OFEENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT— con/d.

'((/) Dacoity — concld.
British territory— Criminal Procedure Code 1S72,
s. 67. Where dacoity was committed at Velanpore,
a village in the territory of His Highness the Gayak-
wad, and a part of the stolen property found where
it had been concealed by the accused m British
territory, it was held that a conviction of dacoity
could not be sustained, that being a substantive
offence completed as soon as perpetrated at Velan-
poie ; although, had Velanpor been m British
territorv, the subsequent acts in the process ot
takincr awav the property might, in the legal sense,
have coalesced with the first and principal one so as
to give jurisdiction under s. 67 of the Code ot
CViminal Procedure in each district into which the
property was conveyed. But on a conviction ot
retaining stolen property, the sentences awarded
could. It was held, be sustained, the retaining
having taken place in British territory. Reg. i^
Lakh^a Govind . . I. L. R. 1 Bom. 50

13^ Dacoity committed in

British territory— Crimmai Procedure Code,
ft_ 280— Dishonest receipt of stolen property in
foreign territory. Certain persons, who were not
proved to be British subjects, were found in posses-
sion, in a Native State, of property the subject of a
dacoitv committed in British India. They were not
proved to have taken part in the dacoity, and there
was no evidence that they had received or retained
any stolen property in British India. They were
convicted of ofEtnees punishable under s. 412 of the
Penal Code : Held, that no offence was proved to
have been committed within the jurisdiction of a
British Court Qtjeen-Empkess v. ^ir-pm. Singh
I, Xi, R. 9 All. o^o

(h) Emigrants, Rbcruiting, tindek False Pre-
tences.

14. ^Place where false pretences

were held out— Jurisdiction to try recruiters of
emigrants under s. 71, Act XIII of 1864. Recruit-
ers of emigrants charged under s. 71, Act XIU
of 1864, must be tried by the Magistrate within
whose jurisdiction the holding out of false pretences
to the labourers took place. ANOSYMons

4 Md. Ap. 4

15.

(i) FSCAPE FBOM CtlSTOPY.

Place of trial — District in

which escape took place. A convict escaping from
custody mvist be tried for that offence in the district
within ^^'hich he escaped : a IMagistrate of another
district has no jurisdiction to try him for the offence.
Reg. v. Dossa Sera ... 1 Bom. 139

16.

(j) Kidnapping.

Offences committed

different districts in the course of the same

JURISDICTION OF CRIMINAL COURT

— contd-

4. OFFENCES COMMITTED ONLY PARTLY

IN ONE DISTRICT— co?i((Z.

(;■) Kidnapping — concld.

transaction — Criminal Procedure Code (1S82),

5. ISO— Penal Code (Act XLV of 1860), ss. 366
and 36S— Kidnapping— Commitment where to be
made. R, C, P, and K were committed by the
Joint Magistrate of Muzaffarnagar to the Court
of the Sessions Judge of Saharanpur. Upon the
case which was before the Joint Magistrate, it
appeared that .R had committed the offence punish-
able under s. 366 of the Indian Penal Code in the
district of Bijnor, and possibly the other three per-
sons had committed the offence punishable under
s. 368 of the Indian Penal Code in the district of
Muzaffarnaga.-, C and P also possibly having com-
mitted the offence punishable under that section in
Bijnor. Under the above circumstances, the High
Court, maintaining the order of commitment made
by the Joint Magistrate, direotel the case to be
transferred for trial to the Court for the trial of
sessions cases arising in the Bijnor district, namely,
that of the Sessions Judge of Moradabad. Peg. v.
Samia Kaundan, I. L. R. 1 Mad. 173, and Queen-
Empres" v. Surja, All. Weeldy Notes, (1883), 164,
not followed. Queen-Empress v. Ingle, I. L. R.
16 Bom. 200, and Queen-Empress v. Abbi Reddi,
I. L. R. 17 Mad. 402, referred to. Queen-Empress
v. Thahu, I. L. R. 8 Bom. 312, followed. Queen
Empress v. Ram Dei . I. L. R. 18 All. 350

C^17. Offences committed outside

British territory — Criminal Procedure Code
(1882), s. 188— Certificate of Political Agent—
Kidnapping. The absence of the certificate of
the Political Agent required by s. 188 of the Code
of Criminal Procedm-e is an absolute bar to the trial
of a case to which the provisions of that section
apply. Qiteen-Empeess v. Ram Sundar

^^ I. Ii. R. 19 All. 109

(k) Murder.

18. Offence committed in Cy-
prus— Foreign Jurisdiction and Extradition Act
(XI of 1872), ss. 3, 9 — Liahilitrj of Native Indian
British subject for offence committed in Cyprus —
''Native State'' — Legislative powers of Governor
General in Council — Confirmation of sentence of
death— Division Court— Full Court. Held (Stuart,
C.J., dissenting), that a Native Indian subject
of Her Majesty, being a soldier in Her Majesty's
Indian army, who committed a murder in Cyprus,
while on service in such army, and who was accused
of such offence at Agra, might, under s. 9 of Act XI
of 1872, be dealt with in respect of such offence by
the Criminal Courts at Agra, Cyprus being a
"Native State," in reference to Native Indian
subjects of Her Majesty, within the meaning of that
Act. Per Stuart, C. J.— The power of the Gover-
nor General of India in Council to make laws for the

DIGE«T OF CASES.

( 6202 )

JUBISDICTIOW OF CRIMINAL COURT

— contd.

4. OFFENCES COMMITTED ONLY PARTLY
IN 0^'E DISTRICT— conicZ.

{k) Murder — contd.

trial and punishment in British India of offences
committed by British Indian subjects in British
territories otlier than British India discussed. A
Division Court of the High Court ordered the Magis-
trate who had refused to enquire into a charge of
murder on the ground that he had no jurisdiction
to enquire into such charge, considering that the
Magistrate had jurisdiction to make such enquiry.
The Magistrate enquired into the charge and com-
mitted the accused person for trial. The Court of
Session convicted the accused person on the charge
and sentenced him to death. The proceedines of
the Court of Session having been referred to the
High Court for confirmation of the sentence, the
case came before the Full Court : Beld, per Stuart,
C.J., Spankie, J., and Oldfield, J. — that in
determining whether such sentence should be con-
firmed, the Full Court was not precluded by the
order of the Division Court from considering whether
the accused person had been convicted by a Court
of competent jurisdiction. Empress of India v.
Sarmukh Singh . . I. L. R, 2 All. 218

19. _ Murder committed in

Island of Ferim—Critninal Procedure Code,
1SS:2, s. !■ — Law in force at Perim — Aden, jurisdic-
tion of Court of Political Resident at— Act II of
18^.4, s. 2.! — Appeal from sentence of Political
Besident at Aden to High Court of Bomhay in cri-
minal case arising at Perim. Held, that the Island
of Perim, having been occupied with a view to its
permanent retention by officers of the Government
of Bombay, became a part of British India within
the definition of Stat. 21 & 22 Vict., c. 106, and
vested in Her Majesty along with the other Indian
territories under that Act, which became law on 2nd
September 1858. The Penal Code (Act XLV of
1860) and the Code of Criminal Procedure (Act X of
1882) extend in their entirety to the whole of British
India and therefore to the Island of Perim. S. 7
of the Criminal Procedure Code (Act X of 1882)
gives to the Local Ccovernment the power to alter
the local limits of sessions divisions, and continues
the divisions existing when that Code came into
force. A notification was issued by the Govern-
ment of Bombay on the 6th May 1884 under the
above section including the Island of Perim within
the sessions division or district of Aden, and
empowering the officer from time to time command-
ing the troops stationed at Perim, in virtue of his
oflSce, to exercise the powers of a Magistrate of the
second class within the island and to commit
persons for trial to the Court of Sessions at Aden.
Held, having regard to the language of Act II of
1864, that, for the purposes of s. 7 of the Criminal
Procedure Code (Act X of 1882), the Resident's
Court at Aden might be considered as a Court of
Session, and that the local area to which Act II
of 1864 applied was the sessions division which was

JURISDICTION OF^CRIMIWAL COURT

— contd.

4. OFFENCES COMMITTED ONLY PARTLY

IN ONE DISTRICT— conicZ.

{k) Murder — conoid.

in existence'^at the date of the above notification
when the limits thereof were altered by the inclusion
of the Island of Perim. A prisoner charged with
having committed murder in the Island of Perim
was committed by the Magistrate at Perim to
be tried before the Political Resident at Aden.
Having been found guilty and sentenced to death, he
appealed to the High Court of Bombay. By the
Aden Act II of 1864^ s. 29, it is provided that " no
appeal shall lie from an order or sentence passed by
the Resident in any criminal case." The High
Court, however, admitted the appeal, being doubt-
ful as to whether the above provision applies to
cases arising in the Island of Perim. Queen-
Empress V. MaNGAL TEKCH.4XD

I. L. R. lOpom. 258

In a subsequent stage of the same case : — Held,
notwithstanding the notification of the Government
of Bombay (No. 2336), dated the 6th May 1884,
including the Island of Perim within the sessions
divisions and district of Aden and empowering the
officer in command of the troops stationed at Perim
to commit persons for trial to the Court of Session
at Aden, that the Court of the Political Resident
at Aden had no jurisdiction over the Island of
Perim, and that the Political Resident at Aden was
not a Judge of a Court of Session for that island.
Where, therefore, a person charged with ha vino-
committed murder at Perim was committed by the
Magistrate at Perim for trial in the Court of the
Political Resident at Aden, where he was convicted
and sentenced to death, the conviction was annulled,
and the prisoner was ordered to be re-tried before a
Court of competent jurisdiction. The Island of
Perim, although under the control of the Political
Resident at Aden, cannot be regarded as part of
Aden, and the provisions of the Aden Act II of
1864 are not in force at Perim. Act II of 1864 did
not create a separate Court of Session at Aden. The
Court created was the Court of the Resident, and
the powers of that Court and of a Court of Session
are not commensurate. Queen-Empkess v. Man-
gal Tekchand . . I. Ij. R. 10 Bom. 263

(Z) Receiving Stolen Propertv.

20.

— Receiving outside British
territory — Criminal Procedure Code, 1S'>1, s. 31
— Subject of foreign State — Offence committed out
of British territory. S. 31 of the Criminal Pro-
cedure Code does not confer jurisdiction upon a
Magistrate to try a subject of a foreign State for
"receiving stolen property," when the offence of
receiving such property has been committed out-
side the^British territories. Reg. v. Beciiar Mava
4 Bom, Cr. 38

2L Property stolen in one

place and received at another. To make it

( 6203 )

DIGEST OF CASES.

( 6204 )

JURISDICTION OF CMMIWAIi COURT

— contd-

4. OFFENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT— co/i<(i.

(Z) Receiving Stolen Property — concld.

legal to punish at Patna a prisoner committed, in
Calcutta on a charge of receiving stolen property, it
must be shown that the property was stolen at
Patna. Queen v. Ghasoo Khan

5 W. R. Cr. 49

22. . — Receiving and retaining

stolen goods within jurisdiction where the
theft w^as committed out of jurisdiction —

Penal Code, ss. 410 and 411— Commission to take
evidence, potcer of High Court to grant, on appli-
cation of prisoner. The prisoner was tried at
Bombay, under s. 411 of the Penal Code, on a charge
of having dishonestly received and retained stolen
property, knowing or having reason to believe the
same to be stolen property. He was also charged
under ss. 108 (explanation 3) and 190, with having
abetted that offence. It appeared at the trial that
the prisoner was a clerk in the employment of a
mercantile firm at Port Louis, in the Island of
Mauritius. On the 29th October and the 1st Novem-
ber 1879, certain letters addressed by the firm
to their commission agent at Bombay were abstract-
ed from the post office at Port Louis. The letters
contained six bills of exchange belonging to the firm
for an aggregate amount of R26,550. On the 1st
November 1879, the prisoner sent all six bills of
exchange in a letter to the manager of a Bank at
Bombay, requesting that the several amounts might
be collected on the prisoner's own account, and
remitted to him by bills on Mauritius. The sums
were accordingly realized by the Bank, and duly
remitted to the prisoner. It was not denied that
the prisoner obtained possession of the money and
used it as his own. His defence was that the bills
had been given to him in payment of a debt. The
prisoner was convicted on all the charges ; but the
jurisdiction of the Court having been challenged on
his behalf, the question was reserved. Held, per
Sargent and Melvill, J J. (West, J., dissentiente),
that the bills of exchange, having been stolen at
Mauritius, in which island the Penal Code is not in
force, could not be regarded as ' ' stolen property ' '
within the provisions of s. 410, so as to render the
person receiving them at Bombay liable under s.
411 ; that the High Court of Bombay had there-
fore no jurisdiction, and that the conviction must
be quashed. Ejipress v. Mooega Chettv

I. L. R. 5 Bom. 338

(?w) Theft.

23. Theft out of British terri-
tory—CrmiwaZ Procedure Code, 1872, s. 67. The
accused stole property in foreign territory and
was apprehended with it in his possession in a dis-
trict in British territory -.—Held, that s. 67 of Act X
of 1872 did not give the Courts of such district juris-

JURISDICTION OP CRIMINAL COURT

COThtd.

4. OFFENCES COMMITTED ONLY PARTLY
IN ONE DISTRICT— cowcW.

(m) Theft — concld.

diction to try the prisoner for the theft. Reg. v.
Adivigadu . . . I. Ij. R. 1 Mad. 171

24. Dishonestly retaining in

British territory property stolen beyond
British territory— CVimm«Z Procedure Code,
1S72, s. ()6. A Nepalese subject, having stolen
cattle in Nepal, brought them into British territory,
where he was arrested and sentenced to one year's
rigorous imprisonment : Held, that he could not be
tried for the theft itself, but that he might be con-
victed of dishonestly retaining the stolen property.
Empress v. Sunker Gope

I, L. R. 6 Calc. 307 : 7 C. L. R. 411

25.

Theft in dw^elling-house-

Violation of conditions of remission of punish-
ment— Penal Code, s. 227. A person convicted by
the Recorder's Court of Prince of Wales's Island,
Singapore, and Malacca, of the crime of burglary
and sentenced to transportation for ten years, at a
place to be appointed by the Governor General of
India in Council, was released from the Ratnagiri
Jail on a ticket-of-leave after having been in con-
finement for more than eight years. At Karedar
he committed theft in a dwelhng-house before his
sentence had expired : — Held, that the full power
Magistrate at Karwar had jurisdiction to try the
convict for the offence of violation of the condition
of remission of punishment under s. 227, Penal Code
Reg. v. Ahone Akong . . .9 Bom. 356

26. Theft w^here property is

found out of ^xxxisdiiotion— J urisdiction of
Courts in British India over offences committed out
of British India — Rajkot, Civil Court at — Stnt.

21 & 22 Vict., c. 105— Penal Code, ss. 381, 410,
411. The civil station at Rajkot is not part of
British India within the meaning of Stat. 21 «&

22 Vict., c. 106. AVhere the accused, a subject
of a Native State, committed theft at Rajkot Civil
Station, and was found in possession of the stolen
property at Thana : — Held, that, as the offence was
not committed in British India, and as the accused
was the subject of a Native State, the Sessions Court
at Thana had no jurisdiction to try the accused
for theft under s. 381 of the Penal Code. But
it was competent to try him for dishonest retention
of stolen property under s. 410 of the Penal Code
as amended by Act VIII of 1882. Queen- Empress
V. Abdul Latib valad Abdul Rahiman

I. L. R. 10 Bom. 186

5. OFFENCES COMMITTED DURING JOUR-
NEY.

1. -^ Oflfenee under Railway Act,

\QQ'2,^Dismissal outside jurisdiction of — Guard
of train afterwards coming into jurisdiction. The
High Court has no jurisdiction to try a prisoner

( 6205 J

DIGEST OP CASES.

( 6206 )

JURISDICTION OP.CRIMINAIiJCOUIlT

— contd.

5. OFFENCES COMMITTED DURING JOUR-

N EY— conc.'cZ.J

charcied with drunkenness while as guard or under-
guard in charge of a railway t^ain where he was
removed from his post at a place outside the local
limits, although the train thereupon proceeded with
him to Madras. Queen ?;. Malony. Queen v.
Jones 1 Mad. 193

2. Offence committed on inter ■

Tupted journey ^Criminal Procedure Cod^
(Act X of 1S72), s. 67, III. (a). Where an offenc"
was alleged to have been committed during a jour'
ney from Bombay to Calcutta, and was in fact com"
mitted between Bombay and Allahabad, at which
latter place the complainant and the person by
whom the offence was alleged to have been commit-
ted separated and proceeded to Calcutta by different
trains : — Held, that the Magistrate of Howrah had
no jurisdiction to try the charge. To bring the
matter within his jurisdiction, the journey should
have been continuous from one terminus to the
other without any interruption by either party.
Queen v Piean . . 13 B. L. R. Ap. 4

s.c. Peerun alias Kukeemun Ayah v. Field

21 W. R. Cr. 66

3. Theft of box during journey

— Criminal Procedure Code, 1872, s. 67. A box
containing money having been missed during a halt
at Sumbhoogunge, from a boat which was on the
way to Chittagong, and a question having been
raised whether the charge of theft which was based
on the loss should be tried at Tipperah or Chitta-
gong : — Held, that the journey was not broken by
the halt, and that, under s. 67, Criminal Procedure
Code, the case could be tried at Chittasong. Queen
V. Abdul Ali . . . 25 "W. R. Cr. 45

DISPUTES CONCERNING IMMOVEABLE
PROPERTY.

1. Omission to state the

grounds of the apprehension of a breach of
the peace — Jurisdiction of Magistrate — Dispute
relating to a cutchcrry — Initiatory order — Reference to
information obtained in a local inquiry not recorded —
Order as to costs — Criminal Procedure Code {Act V of
189S), ss. 145, cl. (I), US. If the Magistrate omits
in the initiatory order under s. 145, cl. (I) of the
Criminal Procedure Code to state the grounds of his
being satisfied as to the likelihood of a breach of the
peace, the final order is without jurisdiction.
Where, therefore, the initiatory order meiely
referred to some information, which was obtained
during the course of a local inquiry held by himself
but had not been reduced into writing : — Held, that
the proceedings under s. 145 were bad in law. In a
case initiated upon a police report or other informa-
tion, which has been reduced into ■waiting, reference
can be made to the materials upon which the
Magistrate acted, to ascertain where there were

JURISDICTION OP CRIMINAL COURT

— contd-

6. DISPUTES CONCERNING IMMOVEABLE
PROPERTY— conf^.

in fact grounds upon which he might have acted,
but even then it is his duty to state the grounds,
upon which he was satisfied that there was a
likeUhood of a breach of the peace. Queen- Em press
V. Gobind Chandra Das, I. L. R. 20 Calc. ■520;
Dhanput Singh v. Chatter put Singh, I. L. R. 20 Calc.
513; Mohesh Sowir v. Narain Big, I. L. R. 27
Calc. 9S1, and Jogomohan Pal v. Ram Kumar
Gope, I. L. R. 28 Calc. 416, referred to. Nittya-
NAND Roy v. Paresh Nath Sbv (1905)

I. L. R. 32 Calc. 771

2. . Title— I mtnoveable property,

dispute as to — Bundh — Possession — Title — Costs
— Damages — Criminal Procedure Code {Act V
of 1898), ss. 145, 148. Proceedings under s. 145 of
the Criminal Procedure Code were instituted with
reference to a bundh erected by the second party
upon land claimed both by the first and second
parties. The Magistrate treated the case as if it
were solely one of title and made an order direct-
ing the removal of the bundh, and he further
awarded one of the parties R50 for the damage done
to his crops as well as for costs in the case : — Held,
that the entire order was illegal and should be set
aside, including the order as to costs. Prayaq
Mahaton v. Gobind Mahaton (19051

I. L. R. 32 Calc. 602

3. Possession given by Civil

Co^XTt— Criminal Procedure Code {Act V of 1S9S),
ss. 146, 146 — Practice. Where the petitioner had
eight days before the institution of proceedings
under s. 145 of the Criminal Procedure Code been
put in possession of a portion of the disputed plots
of land by the Civil Court in execution of a decree
establishing his rights to the same : — Held, it was
the duty of the Magistrate in the proceedings under
s. 145 of the Code of Criminal Procedure to find
possession of the portion in accordance with the
decree of the Civil Court. The order so far as it
directs the attachment of the disputed land covered
by that decree is without jurisdiction. Gulraj
Marwari v. Sheik Bhatoo (1905)

I. L. R. 32 Calc. 796

4. M.&n&g er~Jurisdiction of

Magistrate — Criminal Procedure Code {Act V of
1898), ■ s. 145— Parties— Title— Possession— En-
croachment. The fact that the manager, and not
his employer, the zamindar, has been made a
party to a proceeding under s. 145 of the Criminal
Procedure Code is a mere irregularity, or at most an
error of law, which does not affect the Magistrate's
jurisdiction. Dhondhai Singh v. Folkt, 1. L. R. 31
Calc. 48, referred to. Where a party claims no
easement or customary right, any intermittent acts
of encroachment on his part, such as cutting a few
trees or filching some underwood, would not affect
the title or possession of the superior landlord.
Framji Cursetji v. Goculdas Madhowji, I. L. R. 16
Bom. 338 ; Agency Company v. Short, L. R. 13 App.

( 6207 )

DIGEST OF CASES.

JURISDICTION OP CEIMIlSrAL COURT

— contd.

6. DISPUTES CONCERNING IMMOVEABLE
PROPERTY— con/d.

Cas. 773, referred to. Bholanath Singh v. Wood
(1905) . . . I. L. B. 32 Calc. 287

5. Omission to record initiatory-
order — Magistrate — Criminal Procedure Code {Act
V of ISiS), s. 145, els. (1), (6)— Arbitration,
reference to. Where proceedings under s. 107 of
the Criminal Procedure Code were instituted
against the parties and on their appearance the
Magistrate, considering that the dispute came
within s. 145 of the Code, treated the case as one
instituted under the latter section, and adjourned
it for the evidence of their respective clairus to
actual possession, without recording an cider under
sub-s. (1) : — Beld, that the drawing up of a formal
order under sub-s. (1) was absolutely necessary to
the initiation of proceedings under s. 145 and the
omission to do so rendered them bad for want of
jurisdiction. S. 145 does not contemplate that the
question of actual possession should be delegated,
even by the consent of the parties, to arbitration.
It directs the Magistrate himself to receive the
evidence produced by the parties, and to come to a
decision in consideration thereof. Bakwaei Lat.t.
MuKEEJEE V. Heiday Chakeavaeti (1905)

I. li. B. 32 Calc. 552

Order on written statements

without any evidence — Jvrisdjction— Dispute
conceining land — Jurisdiction c/ Magistrate — High
Court, 'jurisdiciicn of — Criminal Procedure Code
(Act V of 1898), s. 145, suh-ss. {!), {4). Sub s.
(»') is not the only provision in s. 145 of the Crimintl
Procedure Code, which lays do\\n what matters
relate to the jurisdiction of the Magistrate. Theie
are other provisions in the section, the coi tra-
vention cf Mhich affects his jurisdiction, and so
gives the High Court power to interfere. Where
the Magistrate passed an order under s. 146 of the
Code, only upon the Avritten statements of the par-
ties and uithout taking any evidence : — Held, th£.t
the order was without jurisdiction, and that the
High Court had power to set ;t aside. Surjya
Kania Acharjee v. Htm Chunder Chowdhry, I. L. E.
30 Calc. 508, followed. Sukh Lai Sheikh v. Tara
Chand Ta, I. L. E. 33 Calc. 68, explained. Kolha
KoEE V. Mtjkeswak Tewaei (1907)

I. li. B. 34 Calc. 840

7. - Jurisdiction of Magistrate

to maintain parties in separate possession
— Cnvmial Procedure Code {Act V of l^'JS), ^s. 145,
cl. (6) — Where in a proceeding under s. 145 of the
Criminal Procedure Code, in respect cf a dis-
pute concerning land the Magistrate finds that
one party has been in possession of a portion of the
land in dispute, and the other party in possession
of the rest, and the possession of the one is likely
to interfere with the enjoyment of the possession
of the remaining portion by the other, the Magis-
trate can, in the exercise of jurisdiction vested in
him under s.l45, Criminal Procedure Code, maintain

JUEISDICTION OF CRIMINAL COURT

— concld.

6. DISPUTES CONCERNING IMMOVEABLE

PROPERTY— co«c?i.

both the parties in possession of their respective
portions. Katras Jherria Coal Company v. Shib
Kristo Daw, I. L. E. 22 Calc. 297, distinguished.
Kangali Das Bairagi v. Muti Lal Bagdi (1906)
11 C. W. N. 743

8. . Review — Criminal Procedure

Code {Act V of 1898), ss. 145, 369. A Magistrate
has no jurisdiction to review a final order passed
by himself under s. 145 of the Criminal Procedure
Code. Paebati Chaean Roy v. Sajjad Ahmad
Chowdhtjey (1908) . I. L. R. 35 Calc. 350

7. OFFENCES UNDER THE CATTLE TRES-

PASS ACT.

■ Jurisdiction — Cattle

Trespass Act {I of 1871), s. 20— Illegal
seizure of cattle — " Offence " — Power of District or
specially authorized Magistrate to transfer such case
— Subordinate Magistrate, poiver of, to try — Criminal
Procedure Code {Act V of 1898), ss. 4 (o), 192, and
Sch. II, last clause. The illegal seizure or detention
of cattle, referred to in s. 20 of the Cattle Trespass
Act (I of 1871), is an " offence'' under s. 4 (o) of the
Criminal Procedure Code of 1898, and is, by virtue
of the last clause of Sch. II thereof, triable b}' any
Magistrate ; and though under s. 20 of the Cattle
Trespass Act, a complaint of such illegal seizure or
detention must be en'er'ained by a District Magis-
trate or one specially authorized as required by the
section, such Magistrate has power, under s. 192,
to transfer such cases, after taking cognizance, to
any Subordinate Magistrate for trial. Shama v.
Lechhu Shekh, I. L. E. 23 Calc. 300, and Eaghu
Singh V. Abdul Wahab, I. L. E. 23 Calc 442 ^
declared obsolete. Budhax Mahto v. Issue
Singh (1907) . . I. L. R. 34 Calc. 926

JURISDICTION OF HIGH COURT.

See Civil Peoceduee Code, 1882,
ss. 24J-, 295, 622

I. L. R. 36 Calc. 130
See Ceiminal Peoceduee Code (Act
V of 1898), s. 476

I. L. R. 35 Calc. 909

See High Couet, Jueisdiction of.
See Jurisdiction

I. L. R. 36 Calc. 233

-See Peoclamation

I. L. R. 35 Calc. 701

in its appellate jurisdiction—

See Insolvency I. L. R. 36 Calc. 512
-Power of High Court to

restrain by injunction a person from proceeding with
a suit in the Small Causes Court. The High Court
of Bombay has inherent power to restrain by
injunction a defendant in a suit filed in the High

( 6209 )

DIGEST OF CASES.

( 6210 )

JURISDICTION OF HIGH COtrRT—

concld.
Court from proceedincr in the Small Causes Court at
Bombay with a suit filed by the defendant referring
to the same matter to which the suit in the High
Court relates ; or from filing further suits relating
to the same subject-matter pending the hearing of
the High Court suit. Jairamffas v. Zamonlal,
I. L. R. 27 Bom. 357, not followed. Uderam
Kesaji I'. Hyderau.y(1008)

I. L. R. 33 Bom. 469

JURISDICTION OF MAGISTRATES.

See Criminal Procedure Code (Act \"
OF 1898), ss. 145. 14()

I. L. R. 34 Calc. 840
See Criminal Procedure Code, ss. 145,
192 {2), 520

I. L. R. 36 Calc. 370

See Jurisdiction.

See Jurisdiction of Crijiinal Court.

See MaCxLstrate.

See Tolls . I. L. R. 36 Calc. 986

JURISDICTION OP REVENUE COURT

Col.

1. Bombay Regulations and Acts . 6209

2. Madras Regulations and Acts . 6211

3. N.-W. P. Rent and Revenue Cases. 6212

4. Oude Rent and Revenue Cases . 6219

See Abetment of Rent.

1 B. L. R. A. C. 87

See Appeal— N.-W. P. Acts.

I. li. R. 13 All. 364

See Jurisdiction of Civil Court —

Offices, right to.

1. 1.. R. 13 Mad. 41
iSee Jurisdiction of Civil Court — Rent

and Revenue Suits, Bombay, Madras

AND N.-\V. Provinces.

See North-western Provinces Rent

Act (XII OF 1881), .ss. 42. 95 and 200

I. L. R. 24 All. 517

See Possession, order of Criminal
Court as to — Attachment of Pro-
perty . I. L. R. 15 All. 394

See Res Judicata — Competent Court —
Revenue Courts.

See Rent, suit for.

I. li. R. 28 Calc. 485

See Res Judicata — Competent Court —
Revenue Courts.

1. BOMBAY REGULATIONS AND ACTS.

„!• — Collector of Bombay— Sow.

Reg. XIX cf 1S27, s. 2. The Kevenue Court

VOL. III.

JURISDICTION OF REVENUE COURT
— contd.

1. BOMBAY REGULATIONS AND ACTS—

contd.
under s. 2 of Regulation XIX of 1827, had not
exclusive jurisdiction over the Collector of Bombay
for all acts done by him in his official capacity.
Narayan Krishna Laud v. Norman

5 Bom. O. C. 1
Suit for Tent— Suit under Boi,

B^g. XVII of 1827, s. 31, cl. 3— Act XVI of 1838,
6'. /, d. 1. In a suit to recover rent in a Revenue
Court, under Regulation XVII of 1827, s. 31,
cl. 3 : — Held, that the proper questions to determine
were whether the defendant occupied the land
as tenant of the plaintiff during the period alleged,
and if so, what rent was due : and that a defendant
so sued could not deprive the Court of jurisdiction
by setting up a title in himself, nor did the suit by
such defence become one ' ' in which the right to
possession of land is claimed " within the meaning
of s. 1, cl. 1, of Act XVI of 1838. Bai Mahalak-
SHMi V. Audharu Keshavram Narasiram

2 Bom. 193 : 2nd Ed. 185

Assignment by

mortgagee — Redemption — Suit for rent by assignee.
Where a mortgagee had assigned his interest, and
agreed to pay rent to the assignee, and subsequently
permitted the mortgagor to redeem : — Held, that a
suit for rent could not be maintained in the Revenue
Courts by the assignee against the mortgagor, as the
relation of landlord and tenant never existed be-
tween them, nor against the representatives of the
mortgagee, after they ceased to be in occupation of
the land, but the assignee should proceed under the
assignment in the Adawlut Courts. Biiau Bauaji
Gholap v. Gopal ... 2 Bom. 183

4. Mamlatdar's order under

Bom. Act V of 1864:— Possession— Act XVI
of 1S3S, s. I, (■/. 2—Qu(stions of title — Ciiil Courts,
jurisdiition oi. A Mamlatdar's order under Bom-
bay Act V of 1864 is not conclusive evidence of
the fact of possession and dispossession between the
parties. S. 1 of that Act gives to Mandatdars'
Courts jurisdiction incase of dispossession within
six months from the date of such dispossession, and
relates to immediate possession ; and under s. 15,
the party to whom such immediate possession is
given b}' the Mamlatdar, or whose possession he
shall maintain, shall continue in possession until
ejected by a decree ot a Civil Court. The power
reserved to the Revenue Courts by s. 1, cl. 2, of
Act XVI of 1838, to determine the facts of posses-
sion and dis])ossession, was so reserved merely for
the temporary purpose of enabling those Courts
to dispose of the immediate possession, which was
to continue until the Civil Court ejected the party
put into such immediate possession. The purpose
of Act XVI of 1838, as that of Bombay Act V of
186 1, was temporary only, and chiefly to provide for
the cultivation of the land and to prevent breaches
of the peace until the Civil Courts should determine

( 6211 )

DIGEST OF CASES.

( 6212 )

JURISDICTION OF REVENUE COURT

— conld.

1. BOMBAY REGULATIONS AND ACTS—

concld.
the rights of disputants. The decisions of the
Revenue and the Mamlatdar's Courts as to posses-
sion and dispossession do not bind the Civil Courts,
the proceedings in the former Courts being of a
summary character. The Civil Courts alone can
entertain the question of title. Basapa bin

MURTIAPA V. LaKSHMAPA BIN MaRTTAMAPA

I. L. R. I Bom. 642

2. MADRAS REGULATIONS AND ACTS.
1 . Suit for rent of land— JfacZ.

Act VIII of 1S65— Power of Heid Assistant Col-
lector Act XI of 1S65. At the date of the enact-
ment of Act XI of 1865. suits for rent of land could
not be entertained by the Revenue officers of this
presidency, so as to JDar the cognizance of suits by
the Smalf Cause Court. Madras Act VIII of 1865,
equally with the prior enactments, abstains from
authorizing the cognizance by the Revenue authori-
ties of suits for arrears of rent. The cognizance of
such a suit by a Head Assistant Collector is a pro-
ceeding coram non jndice. Gattbi An3NTHA Para-
rnESE'alias Satthappaiyan v. Kaliappa Setti.

3 Mad. 213

Sait for possession of land

after wrongful ejectment— i¥«i. Act VIII

of 1S65, s. 12. Plaintiffs sued under s. 12 of
Madras Act VIII of 1865, to be reinstated in the
possession of certain lands from which they alleged
they had been ^\Tongfully ejected by the defendant
a zamindar. Defendant pleaded that the suit was
not maintainable as the lands in question formed
part of his " panai '' lands and were not a part of
his zamindari : — Held, that the suit was maintain-
able before the revenue authorities under s. 12,
Madras Act VIII of 1865. Nagayasami Kamaya
Naik v. Pandya Tevar . . 7 Mad. 53

3_ . Suit for a pottah^Jfairaa

Bent Recovery Act [Mad. Act VIII of 1865), ss. 8,
g^ 20 — Denial of tenancy by landlord— Question of
title. In a summary suit brought iinder the
Madras Rent Recovery Act to compel the defend-
ant to give a pottah to the plaintiff for certain
land which plaintiff claimed to hold from him,
the defendant denied that the plaintiff was his
tenant: — Held, thn^t the Collector was bound to
try the question so raised, and not to refer the
parties to a regular suit for its determination.
Narayana Chariar v. Ranc.a Ayvanoar

I. L. R. 15 Mad. 223

4. Suit to enforce acceptance

of VottaJh^Madras Bent Recover)/ Act {Mad. Act
VIII of 1865), ss. 9 and 10— Bond fide denial by
defendant of plaintiff's title — Question of title. The
plaintiff obtained a permanent lease of inam
lands attached to a mosque from the four owners
thereof. The defendant was a cultivating tenant
on the lands, and the plaintiff duly offered the de -

JURISDICTION OF REVENUE COURT

C07ltd.

2. MADRAS REGULATIONS AND ACTS— concld.

fendant a pottah. The defendant refused to execute
a corresponding muchilika on the ground that the
plaintiff was not his landlord, since the first of the
aforesaid owners had granted a lease for 35 years to
a person who had sublet the land to the defendant.
The plaintiff thereupon brought a suit to enforce
acceptance of a pottah under s. 9 of Madras Act
VI o' 1S65. The Deputy Collector having decided
the case in the plaintiff's favour, the defendant
appealed, and the District Judge dismissed the suit
on the ground that the defendant's contention
raised a bond fide question of title which ousted the
jurisdiction of the Deputy Collector: Held, that
there is no provision in Madras Act VIII of 1865
that a bond fide denial of the relationship of landlord
and tenant ousts the jurisdiction of the Revenue
Courts ; and, with regard to s. 10 of the Act
whenever a Court is invested with jurisdiction to
determine the existence of a particular legal relition
the intention must be taken to be to authorize it to
adjudicate on every matter of fact or of law
incidental to such adjudication. Narayana Chariar
V. Ranga Ayyangar, I. L. R. 15 Mai. 223, and
Ai/appa V. Venkata Krishnamarazu I. L. R. 15
Mad. 485, cited and followed. Abdul Rahiman
Sahib v. Annapillai . I. L. R. 17 Mad. 140

N.-W. P. RENr AND REVENUE CASES.

Nature of defence— S^eci of.

on jurisdiction of Court. The jurisdiction of a
Revenue Court under the Rent Act, 1859, was not
affected by the nature of the defoice set up. Doyal
Chundbr' Ghose v. Dwarkanath Mitter

W. R. F. B. 47 : Marsh. 148

1 Ind. Jur. O. S. 41 : 1 Hay 347

Choxder Koomar Mundul v. Baker Ali

Khan 9 W. B. 598

2. Denial of relation of land-
lord and tenant— /ss«e as to relationship of
landlord and tenant existing or not. If in a suit
brought in the Revenue Court on an allegation of
the existence of the relation of landlord and tenant
that relation is denied b/ the defendant, the Court
^instead of declining jurisdiction by reason of the
denial) should judicially determine the fact, and
take jurisdiction or not according to the result.
HuREE Persad Malee v. KoonJo Behary Shaha
W R F. B. 29 : 1 Ind. Jur. O. S. 20
Marsh. 99 : 1 Hay 238
Kallee Sixgh v. Moorlee Ram 1. W. R. 135
Sandes v. Suroop Chunder Biswas

2 W. R., Act X, 11
NusRUN Bebee v. Watson . 3 W. R. 215

POORNO Doss V. OOJOODHIAPROSAD

3 W. R., Act X, 16

3. Questions of title— J urisdic-

t ion of Civil Court. It is not the province of a

( 6213 )

DIGEST OF CASES.

( 6214 )

JURISDICTION OF REVENUE COURT

— conid.

3. N.-W. P. RENT AND REVENUE CASES—
contd.

Revenue Court to decide questions of title between
contending claimants, such questions being Adthin
tlse province of the Civil Courts. Jugut Shobhun
Chunder alias Doolal Chunder. Dehingur
GossAME'^ V. BiNATTD Chunder (dias Soda
Shobhux Chtjxdek Dehixgitr Gossamey

I. L. R. 9 Calc. 925

4. Doundari/ queition.

The Revenue Courts have no jurisdiction to
decide a boundary question between two estates. A
landlord must first obtain a declaration in the Civil
Court that the land in dis^Dute is i^itbin the limits of
his estate, after which he may proceed to assess
revenue upon it in the usual course under Act X of
IS59. Amixa v. Ramzan Ali

W. R. 1864, Act X, 116

Rughooxath Sahov v. Boosdir Muxdir

1 W. R. 36

Plea of

, proprie-
tary title. Held, that where a proprietary title is
pleaded in respect to land whereof rent is claimed
it can be adjudicated upon by the revenue author-
ities, who, so far from being prevented by law from
taking cognizance of such pleas, are competent to
dispose of all such pleas when raised in bar of a
claim for rent, as is evident from s. 153, Act X of
1859. Kashi Ram v. Mendee Singh

2 Agra Rev. 8

Question of title

Suit for rent. In

incidentaUy raised

which the determination of title is incidental to the
decision of suits properly brought in the Revenue
Court, that Court is bound to enquire into the title.
Where a person ostensibly in possession as proprietor
institutes a suit for rent, and the alleged tenant
pleads that he is in possession as a proprietor, the
Revenue Court is bound to raise and decide the issue
respecting title. Ramgut Sixgh v. R\m Sarun
SiNGH 3N. W. 141

7 -Set-oflE"— Suit for rent. A Court

of Revenue cannot entertain a claim to a set-off
unless such claim, if made the subject of a suit,
would fall within its jurisdiction. Held, that in a
Court of Revenue by a lumbarda to recover rent,
defendant was not competent to plead as a set-off
that certain arrears of malikana were due to
him by the plaintiff. Bf.ni .Madho r. Gwv
P^^SAD . . . I. L. R. 15 All. 404

® Landlord and tenant— i\r.- IF.

P. Rent Act {XVIII of 1S73), s. 4— Determina-
tion of status of tenant^Order for ejectment. In
a suit for a declaration that the defendant holds an
estate paying revenue to Government as a manager,
subject to ejectment at will, and for ejectment, if
■the relationship of landholder and tenant between
the parties be established, then the Revenue Court
only can make an order for the defendant's ej:>ct-
ment or for determining the nature and class of his

JURISDICTION OF REVENUE COURT

— contd.

3. N-W. P. RENT AND REVENUE CASES—
contd.

tenure, that is to say, whether he is a tenant at fixed
rates within the meaning of s. 4 of Act XVIII of
1873, or an ex-proprietary tenant, or an occupancy-
tenant, or a tenant without a right of occupancy.
Muhammad Abu Jofar v. Wali Muhammad

I. Ii. R. 3 All. 81

Status of cultivator— 5i««

for enhancement — Plea that defendant is proprie-
tor—Act X of 1S59, s. 153. The Revenue Court
has jurisdiction to try the question whether the de-
fendant in a suit for enhancement of rent, though
recorded as cultivator, was on the footing of a pro-
prietor, and had held the land on payment of reve-
nue rate, there being nothing in the law to bar
the adjudication of such a plea. Kaisrur v. Put
Ram . . . .2 Agra, Ft. II, 212

10. Application for partition

of orchards— Jc< XIX of 1S63. An applioation for
partition of orchards not liable for a quota of the
village assessment was not one cognizable by the
Revenue Court under Act XIX of 1863 but by the
Civil Court. Oodey Ram v. SiraJool Hrssrx

2 Agra 241

11. Suit to make up deficiency

of sir l&nd^Suit for partition and separation of
share. Held, that a suit to make up the deficiency
of sir land of one patti with another patti of a
joint undivided estate was not cognizable by the
Civil Court, the remedy cf the plaintiff being by a
revenue suit for partition and separation of his
share. Golam Ghous v. Pureed Alum

1 Agra 246

12. Suit for ejectment and for

mesne profits against tenant —J«/'-f/'c'io?i of
Civil Court. If a landholder desires to eject a ten-
ant, holding only for a limited period, after the de-
termination of his tenancy he can proceed only in
the Revenue Court, and in that Court by application
and after notice and not by suit, and the circum-
stance that a claim for mesne profits is added to the
claim for ouster does not give the Civil Court jiu-is-
diction in such cases. Ram Autar Rat r. '1'ali>i-
UNDiKuAR . . - . 7N.W.49

13. Suit to determine rate of

rent— Application— Ex-proprietary tenant. A

Revenue Court cannot entertain a suit to determine
the rate of rent payable by an ex-proprietary
tenant, but an application onlv. Phtxahra v.
Jeolai. Singh . . I. L. R. 6 All. 52

14. Suit for arrears of rent for

period prior to order— Dtttrinination of rent by
Settlement Officer— Jurisdiction in such suit to
determine rent for such period on N. W. P. Land
Revenue Act (XIX of 1S73), ss. 72, 77—N.-W. P.
Bent Act (XII of ISSl), s. 95 (I). The jurisdiction
to determine or fix rent payable by a tenant is given
exclusively to the Revenue Court, either by order of
the Settlement Otficeror bv application under s. 95

9m2

( 6215 )

DIGEST OF CASES.

( 6216 )

JTmiSDICTION OF REVENUE COimT

— contd.

3. N.-W. P. RENT AND REVENUE CASES—
contd.

(I) of the N.-W. P. Rent Act (XII of 1881) ; and
such rent cannot be determined in a suit by a land-
holder for arrears of rent in the Revenue Court in
which the appeal lies to the District Judge or High
Court. In March 1884, the rent payable by an
occupancy -tenant was fixed bv the Settlement
Officer under s. 72 of Act XIX of 1873 (N.-W. P.
Land Revenue Act). In 1885, the landholder
brought a suit to recover from the tenant arrears
of rent at the rate so fixed for a period antecedent
to the Settlement Officer's order, as well as for the
period subsequent thereto. The lower Appellate
Court dismissed the claim for rent, prior to the 1st
July 1884, and decreed such as was due subsequent-
ly to that date, but without interest. Held, that
the rent could not be fixed in the present suit,
neither the Court of first instance nor the High
Court having jurisdiction to fix it, and that the
claim for rent for the period in question must there-
fore be dismissed. Earn Prasad v. Dina Knar,
I. L. R. 4 All. 515 ; Special Appeal No. 914 of 1879,
and Phulahra v. Jeolal Sinqh, I. L. R. 6 All. 52,
referred to. Radha Prasad Singh v. JuCxAL
Das .... I. L. R. 9 All. 185

15.

Suit for arrears of rent in

kind— A^.- IF. P. Bent Act (XV 111 of 1873), s.
93—Bhoidi. Held (Pearson, J., dissenting), that
suit for the money equivalent of arrears of rent pay-
able in kind is a "suit for arrears of rent within the
meaning of s. 93 of Act XVIIT of 1873, and there-
fore cognizable by a Revenue Court. Per Pearson,
J. — Such a suit, being a suit for damages for breach
of contract, is cognizable by a Civil Court. Taj-
TTD-DiN Khan v. Ram Parshad Bitagat

I. L. B. 1 All. 217

16.

Suit partly cognizable in

Revenue Court and partly in Civil Court —

N.-W. P. Rent Act (Xll of ISSl), ss. 206, 207.
A co-sharer sued in a Court of Revenue (i) for his
share of the profits of a mehal, and (ii) for money
payable to him for money paid for the defendant on
account of Government revenue. An objection was
taken in the Court of first instance tha*^ the suit, as
regards the second claim, was not cognizable in a
Court of Revenue. The lower Appellate Court
allowed the objection, and dismissed the suit as
regards such claim on the ground that the Court of
first instance had no jurisdiction to try it. Held,
that the objection being in effect ' ' an objection
that the suit was instituted in the wrong Court,"
within the meaning of ss. 206 and 207 of Act XII of
1881, the defect of jurisdiction was cured by those
sections, and the procedure prescribed in s. 207
should have been followed. Lachmi Naratn
V. Bhaw^ani Din . . I. L. R. 4 All. 379

17. Act XII of

1881 (N.- W. P. Rent Act), ss. 206, 207. A suit was
instituted in a Court of Revenue which was partly
cognizable in the Civil Courts. Held, on the ques-

JURISDICTION or REVENUE COURT

— contd.

3. N.-W. P. RENT AND REVENUE CASES—
contd.

tion raised on appeal, whether the Revenue Court
had jurisdiction to entertain the suit, that the
provisions of ss. 206 and 207 of the Rent Act (N.-W.
P.), 1881, rendered the plea in respect of jurisdiction
ineffective. Badrinath v. Bhajan Lal

I. L. R. 5 All. 191

18. Suit for arrears of mali-

kana — Jurisdiction of Civil Court. Suits for
arrears of malikana are cognizable by Revenue
not bv Civil Courts. Ram Churn v. Gunga
Pershad . . . . 2 N. W. 228

19. Suit by mortgagor for

profits — Act XIV of 1863. Where a mortgagor
obtaining possession of the mortgaged property by
redemption sued the mortgagee for the profits of
certain years as due to him by the latter : — Held,^
that the question, being not between co-sharers, but
between mortgagor and mortgagee, was not cogniz-
able by the Revenue Court under Act XIV of 1863.
Praim Sookh v. Abbas Aly . 2 Agra Rev. 4

20. Suit by lambardar for

share of profits — Suit agmnst lamhardar. A suit
by am bard ar for his share of the profits against
another limbardar is cognizable by the Revenue
Coiu-ts. Mohamed Ghotjs v. Kurreemoonissa

1 Agra Rev. 52

21. Suit for profits taken by

lambardar as mortgagee— J»r('.i(//c/('o/i of Civil
Court. Where profits received by a lambardar are
not taken by him as lambardar but in his individual
character under a supposed mortgage title, such pro-
fits are not recoverable by a suit for profits in the
Revenue Court. Khoob Singh v. Bulwant
Singh 2 Agra 302

22. Suit against lambardar for

■grouts— Jurisdiction cf Vivd Court. A lambar-
dar is not chargeable in the Revenue Court in
respect of profits payable at a time prior to his
appointment, although he succeeded his father in
the office. His liability in such a case, if any exists,,
arises not by reason of his official character, but as
one of his father's heirs and representing his estate
and the suit must be brought in the Civil and not in
the Revenue Court. Mata Deen v. Chtjndee
Deen 2 N. W. 54

See Mata Deen Doobey v. Chundee Deen
Doobey 6N-. W. 118

23 — Ad XIV of

1863, s. 1, cl. 2. A suit lies in the Revenue Court
under cl. 2 of s. 1 of Act XIV of 1863 for a, share of
profits against the lambardar, although plaintiff col-
lects her own rents, and pays in separately her quota
of the Government revenue. Salamut Bibee v.
Bhugwan Doss . . . 2 N. "W. 33

24 Suits by co-sharers for hare

of profits— .4c< X/F of 1863, s. 1, cl. 2— Suits
h>/ lamhiiriliir. Construction of cl. 2, s. 1 of Act XIV
of 1863. Suits by co-sharers against co-sharers who-

( 6217 )

DIGEST OF CASES.

( 6218 )

JURISDICTION OF REVENTJE COURT

— contd.
3. N.-W. P. RENT AND REVENUE CASES—

contd.
are not lambardars for a share of the profits are cog-
nizable in the Revenue Courts. Such suits may also
be brought against eo-sharers who, without author-
ity, have made collections in excess of their proper
shares. Suits for the profits oi a muafi, as well as of
a khalsa estate, are so cognizable. A lambardar
can maintain a suit in the Revenue Courts for his
lambardari allowance, as well as for his
ordinary profits as a co-sharer. HuR Narain v.
Shiam Soonder

1 N. W. 211 : Ed. 1873, 264 :
s.e. Agra F. B. Ed. 1874, 188

25. ■ Possession.

Where certain sharers took in lieu of their propor-
tion of profits a piece of land rent-free, with an
agreement that on relinquishing the land they might
claim their share of the profits, it was held that they
could not be said to have been at any time out of
possession of their shares so long as they held the
land and that on relinquishing the land they might
sue for profits in the Revenue Court. Sketul
Singh v. Luchmun Singh . . 3 N". W. 23

26. Suit by ex-co-sharer for

share of -pro&ts— Possession. An ex-co-sharer
may sue in the Revenue Court for his share of the
profits during the time he was in possession. HuR
Narain v. Shiam Soonder . 3 M". W. 112

27. Suit to determine obliga-
tion of plaintiff to contribute to revenue on
alluvial lands and right to share in profits.
Where the possession of the plaintiff in a sliare in
a village is admitted, the Revenue Courts have
jurisdiction to try a suit brought to determine whe-
ther the plaintiff is bound to contribute to the
revenue charged on certain alluvial lands and
entitled to share in the profits thereof. Ram
Shtjnker v. Sheo Pershad . . 5 N. W. 7

28. Gaondars — Suit under Act

XIV of 1863, s. 1, cl. 2, for profits. Gaondars, or
persons exercising full proprietary rights over their
land, save that they paj^ Government revenue
through a third party, and also pay malikana at a
■certain rate to such third party as their superior
landlord, fall within the terms of cl. 2, s. 1 of Act
XIV of 1863. Sheo Pertab Narain Singh v.
Hurshunker Persdad Singh . 5 N". W. 40

29. Suit for profits by co-sharer

—Act XIV of 1863, s. 1, cl. 2— Sharer in posses-
sion. A suit bj' a co-sharer for possession of an un-
divided share, and for mesne profits, is substantially
a suit for mesne profits, and therefore falls under
<;1. 2 of s. 1 of Act XIV of 1863, and should have
been preferred in a Revenue Court. In the above-
mentioned clause there is nothing which requires
that a co-sharer should be a co-sharer in possession
— that is, in receipt of profits. Adut v. Naseeba
KooEB . ... . 5 N. W. 238

JURISDICTION OF REVENUE COURT

— contd.

3. N.-W. P. RENT AND REVENUE CASES—

contd.
of a certain share, suf-d. after their father died, under
cl. 2, s. 1 of Act XIV of 18r)3, to recover profits
which had accrued before their father's death.
Held {per Stuart, C.J., Spankie, J., dissentiente),
that the profits were recoverable in a Civil and
not in a Revenue Court. Matadeen Doobey v.
Chundee Deen Doobey . . 6 N. "W. 118

31.

N.-W.

Rent

Act XIV of

1863, s. 1, cl. 2. The plaintififs, recorded proprietors

Act (XVIII of 1873), ss. 93, 206, 207— Suit for
share of prnfils from lambardar. Held, by the
Division Bench, following the ruling of the majority
of the Full Bench in Ashraf-un-nissa v. Umrao
Begum, that a suit by a co-sharer in an undivided
mehal against the heir of a deceased lambardar for
his share of profits collected by the lambardar before
his death is a suit cognizable not by a Civil Court,
but by a Court of Revenue. Per Stuart, C.J. —
Observations on the application of ss. 206 and 207 of
Act XVIII of 1873. Bhikhan Khan v. R.vtan
KuAR . . . . I. L. R. 1 All. 512

32. Suit by heirs of deceased

co-sharer against heirs of deceased lambar-
dar for profits— L'/ //(/>'( /■(/(•//• and co-sham- — Act
XII of 1881, ss. 93 (h), 208. A suit by the heirs of
a deceased co -sharer against the heirs of a deceased
lambardar for money claimed as profits due to the
deceased co-sharer by the deceased lambardar is a
suit which is cognizable in the Civil, and not the
Revenue Courts. 2Iata Deen Doobey v. Chundee
Deen Doodejj, 6 N. W. 118 ; Mala Deen v. Chundee
Deen, 2 N. W. 54 ; and Bhikhan Khan v. Ratan
Kuar, I. L. R. 1 All. 512, observed on by Stuart,
C.J. Ahmaduddin Khan v. Ma.ihi R ai

I. L. R. 5 All. 438

33. Suit for arrears for revenue

— Lambardar awl co-sharer — Mnrtqaqi e — .Act X VIII
of 1873 {N.-W. P. Rent Act), s. 93 ((j)—Act VIII of
1879, ss. 11, 12. Per Stuart, C.J., and Straight,
J.— The term " co-sharer " in s. 93 (</) of Act X\TII
of 1873 does not include the mortgage of a co-sharer,
and therefore a suit by a lambardar agaii\>t the
mortgagee of a co-sharer for arrears of Government
revenue is not one which, under that section, is
cognizable in a Court of Revenue, but is one which
is cognizable in a Civil Court. Per Pearson, J.,
and Oldfield, J., contra. Bhawani Gir v.
Dalmardan Gib . . I. L. R. 3 All. 144

34. . N.-W. /-. Rent

Act (XII of 1881), s. 93 (g). Held, that a suit
a-fainst a co-.sharer and the transferees of his share
for arrears of Government revenue which became
due before such transfer, the plaintiff claiming as
lambardar and as heir to the deceased lambardar
during whose incumbency such arrears became due,
was cognizable in the Revenue Courts. The princi-
ple laid down in BhikJuin Khnn v. Ratan Kuar,
I. L. R. 1 All. 512, followed. Wazir Muhammad
Khan v. Gauri Dm . I. L. R. 4 All. 412

( 6219 )

DIGEST OF CASES.

( 6220 I

JURISDICTION OF REVEKUE COURT

— concld- I ■

3. N.-W. P. RENT AND REVENUE CASES
— concld.

35. N.-W. P. Bent

Act {XII of 1S81), ss. 93 {g), 205—" Proprietor "
— " Co-sharer.^' Where a lambardar brought a suit
for arrears of land revenue payable by the proprie-
tors against several defendants of whom some Mere
co-sl:arers and others mortgagees in possession : —
Held, that such suit was one of the nature contem-
plated by s. 93 (g) of the N.-W. P. Rent Act, 1881,
and was cognizable by a Court of Revenue as
against all the defendants. Lachman Singh v.
Ghasi . . . I. li. R. 15 All. 137

36. Suit by lessee of occupancy-
tenant fox' recovery of possession — N.-W.
P. Bent Act (XII of ISSl), s. V5 (n). S. 95 (n) of
the N.-W. P. Rent Act (XII of 1881) is applicable
to a suit by the lessee of an occupancy-tenant to
recover possession of the land under the lease from
which the lessor has ejected him, and such a suit is
exclusively cognizable by the Revenue Courts.
Muhammad Zaki v. Hasrat Khan, All. Weekly
Notes {1SS2) 61, and Bibban v. Partab Singh,
I. L. B. 6 All. SI, distinguished. Chhidpu v. Nae-
PAT . . . . I. L. R. 8 All. 62

4. OUDE RENT AND REVENUE CASES.
Liability of lessees in the

position of under-proprietors not entitled
to sub -settlement — Oude Bimt Act (XIX of
1868), ss. 41 and 83, cl. (4)— Oude Svb-Setlh-
ment Act (XXVI of 1886)— Oude Land Beve-
nue Act (XVII of 1876), s. 158. A decree, in
1869, of a Fettlement Court, upon the compromise
of a claim made by village co-j)arcenary occupiers,
to an order for sub-settlement as against the taluk-
dar, declared the claiu ants to be entitled to a
heritable, but not transl'erable, lease of the village,
at a rent, leaving twelve per cent, profit to the
lessees. For default in payment of rent this
lease w as decreed to be in future liable to cancella-
tion " by the decree of any competent Court,
according to any law which may be in force in Oude
■with; respect to persons holding an under-proprie-
tary right in land." Afterwards, in 1879, the par-
ties agreed that the lessees might be dispossessed
for non-payment of rent. Default occurred,-
decrees for arrears v\ere made in 1882 and 1883,
and remained unsatisfied. In a rent-suit brought
by the talukdar : — Held, that he could not sue in a
Revenue Court to have the lease cancelled under
the terms of the Oude Rent Act (XIX of 1868),
either by virtue of the decree or of the subsequent
agreement. Madho Sikgh v. Ajudhiya Singh

I. L. R. 15 Calc. 515
L. R. 15 I. A. 77

JURY.

1. Civil Cases

Col.
6221

2. Jury under High Courts' Criminal

Procedure .... 6221

JTTRY—contd.

Col.

3. Jury in Sessions Cases . . 6222

4. Jury under Nuisance Sections of

Criminal Procedure Code . 6227

5. Withdrawal of Case from Jury . 6230

See Charge . I. L. R. 36 Calc. 287

See Charge to Jury.

See Criminal Procedure Code. 1898, s.

133 . . . 9 C. W. K". 72

I. L. R. 30 All. 364

See Criminal Procedure Code, ss.

274, 451 . I. li. R. 26 All. 211
See Penal Code, ss. 114, 199 and 466,

9 C. W. N. 69
See Public Nuisance.

iSee Thumb-impressions.

9 C. W. N. 520
See Verdict of Jury.

failure to return verdict —

See Criminal Procedure Code. p. 133.
13 C. W. N. 367

heads of charge to jury when to

be recorded-

See Criminal Procedure Code. s. 367.
13 C. "W. H". 197

jury under nuisance sections of

Criminal Procedure Code-

See Nuisance — Under Criminal Pro-
cedure Code — Removal of Prosti-
tutes . . . 5 C. W. IT. 566

See Verdict of Jury.

6 C. W. N. 886

opinion of, in case of divided

verdict —

See Reference to High Court.

I. li. R. 36 Calc. 629

right to claim—

See Jurisdiction op Criminal Court
— European British Subjects.

I. Ii. R. 24 All. 51L
^ trial by—

See Appeal in Criminal Cases — Prac-
tice and Procedure.

6 Bom. Cr. 47
I. L. R. 21 Calc 955
I. L. R. 25 Bom. 680

See Criminal Procedure Code, 1898, s.
209 . . I. Ii. R. 33 Bom. 423
See Judgment — Criminal Cases.

23 W. R. Cr. 32

See Jurisdiction of Criminal Court —
General JuRiSDicTtoN.

8 W. R. Cr. 39 ; 53

{ 6221 >

DIGEST OP OASES.

( 6222 )

JTTRY—contd.

trial hy—concld.

See Magistkate, jurisdiction of —
Power of Magistrates.

I. L. B. 9 All. 420

See Revision — Criminal Cases — Ver-
dict OF Jury, and Misdirection.

trial of case by jury, properly

triable with assessors—

See

I. L. K. 3 Calc. 765
I.L. 11.25 Calc. 555
24 W. R. Cr. 18

1. CIVIL CASES.
Trial of civil cases by jury

— Illegal procedure. The Civil Procedure Code no-
where empowers a Judge to try a case with the aid
of a iury. Doongur Rai v. Doorga Rai

2 N. W. 97

See MoDY v. Queen Insurance Co.

I. L. R. 25 Bom. 332
4 C. W. N. 781

2. JURY UNDER HIGH COURTS' CRIMINAL
PROCEDURE.

Special jury — Power of Clerk

of Crown — Draurngvp li.stvf special jvrors.
The drawing up of the list of special jurors is
entirely in the discrelion of the Clerk ot the Crown,
and the Court will not intcrfcie. In the matter
of Shamchakd Mitter . 1 Ind. Jur. K". S. 106

2. Ballot for selection of jury —

High Covris" Criminal Frocedure—^Criminul Pro-
cedure Code, 1882, as. 274, 276 {Act X of 1875,
s. 33) — Constitution of jury — Ballottivg. Act X
of 1875, s. 33, contemplates that the names ot
the jury to be " chosen by lot " shall be drawn
out of one box containing the names of all persons
summoned to act as jurors. Reg. v. Aiihaldas
Pranjivandas . . I. L. B. 1 Bom. 462

Constitution of jwcY—High

Courts'" Crimiiaal Procedure^Crinnnal Procedtire
Code, 1882, ss. 267, 452 (Ad X of 1875, ss. 3J, 37)
— Prisoner not being European British subject.
A prisoner not being a European British subject,
who is not charged jointly with a European British
subject, is not entitled, i-.m^or the provisions of the
High Courts' Criminal Procedure Act, 1 o be.^tried by
a jury of which at least five persons shall not be
Europeans or Americans. Reg. v. Lalubhai
Gopaldas . . I. li. B. 1 Bom. 232

4. Separation of iViTj— Discretion

of Judge — Trials for felony and for misdemeanour.
By the practice of the Supreme Court at Bombay,
before the Penal Code came into operation, on a trial
for treason or felony, the jury (as in England)
was kept together during the night under the charge
of officers of the Court ; but on a trial for
misdemeanour it was in the discretion of the Judge

JURY— ron^/.

2. JURY UNDER HIGH COURTS' CRIMINAL
PROCEDURE— conc/d.

whether they should be ke])t together or allowed
to return to their homes for the night, the latter
being generally done ; and after the Code came into
operation the practice continued the same, as will in
the Supreme Court as subsequently in the High
Court, the Judges applying the rule by determining
whether the offence under trial would by the old law
have been felony or a misdemeanour. Reg. v.
Dayai. Jairaj ... 3 Bom. Cr. 20

3. JURY IN SESSIONS CASES.

Qualification of juror — Selec-

tion of jury. In lorniinii a jury a Sessions Judge
should endeavour to obtuin persons of an indepen-
dent position in life, and men of judgment and ex-
perience. Queen v. Ram Dutt Chowphky h-

23 W. R. Cr. 35

Clerk in office of

Magistrate. The fact that a person is a clerk in the
office of the Magistrate of the district is not sufticient
to disqualify him from sitting on a jury. I7i the
matter of the petition of Rochia Mohato.
Empress v. Rochia ^MonATo

I. li. R. 7 Calc. 42 : 8 C. L. R. 273

3. Objection to juror — Criminal

Procedure Code, 1861, s. 344, cl. (3). The allowing
of an objection to a juior coming within the Ihiid
clause of s. :)44 of the Code of Criminal Procedure is
in the discretion of the Court ; and although the
Judge is not bound to admit the objection, yet he
should not treat it as frivolous. Cukkn r. KrJi^Ni >
Churn . . . . 16 W. R. Cr. 66

4. Swearing jury — Necessity to

swear jurors. Held, ihnt it was not necefsary in a
trial by jury before a Court of Session under the pro-
visions of the Code of Criminal Procedure that the
jurors should swear. Reg. v. Laksiiumax Ram
Chundra .... 3 Bom. Cr. 56

Omission to swear jury [^ in

sessions case. Quare : If the jury in a sessions
case are not sworn, is tHe omission one ^\hich would
be covered by s. 13 of the Oaths Act, 1873 ?
Queen v. Ramsodoy Chtjckerkutty

20 W. R. Cr. 19

Withdrawal of case from

jury — Improper ucquittid. In a case in which the
prisoner was charged with murder, and he made
a confession that he did strike the deceased with
a stick, the Sessions Judge, after considering the
evidence, discredited the confession and all the
evidence except that of the medical officer and dis-
charged the prisoner, not considering it necessary
that the case should go before a jury. Heli, that
the Sessions Judge had no right to pronounce his
own judgment on the credibility of the evidence, and
to withdraw the consideration of the due weight to
be given to the evidence to the jury. Queen v.
HuRoo Saha . . . . 16 W. B. Cr. 20

( 6223 )

DIGEST OF CASES

( 6224 )

JXTRY—contd.

3. JURY IN SESSIONS CASES-contd.

Trial by jury or assessors —

Dcpuly Commix.'iioner of non-renulation province.,.
Held, with reference to the provisions of ss. 445 A
and 445B of Act VIII of 1869, that the chief
executive officer of a non-regulation province is
hound to proceed under the provisions of Act XXV
of 1861 in the trial of offences punishable by a Court
of Session, and that he must try the prisoners with

a jury or assessors, even

if one of the counts of th

cliarge against the ])riRoners be in respect of an
offence not triable by a Court of Session. Queen v.
KisHTOUAM Dass . . 13 W. B. Cr. 59

8. Irregularity in trial— 0/-

ftnc'e under .v. 91, Eeyistration Act, 1S66. An
offence under s. 91 of the Registration Act ought not
to be tried with the assistance of a jury. Where,
however, such offence was tried with the assistance
of a jury, and the verdict of the jury, who were
unanimous in convicting the prisoner, was ap-
proved of by the Sessions Judge, the High Court
ciinsidered it unnecessary to quash the proceedings.
Queen v. Abdool Kurreem . 14 W. B. Cr. 32

9. . . Case tried bi/

jury to which trial by jury had not been extended
— Invalidity— Appeal. Where a case to which Gov-
ernment had not extended trial by jury was tried
bv jnry> the trial was not consilered invalid on
that ground ; but the Judge's charge was treated as
his judgment in the case, and the prisoner's appeal
was heard on the facts. Queen v. Doorga Ckurn
Shome . . . 24 W. B. Cr. 30

10. Trial by jury of

case triable by assessors — Adultery — Criminal Pro-
cedure Code, 1872, s. 233. The fact that a charge
under the Penal Code, s. 497, was triable with asses-
sors, and not by a jury, would not affect the legality
of a conviction of adultery before a jury. Queen v.
LucKHY Narain Nagory . 24 W. B. Cr. 18

11. Trial of charges partly tri-

able by assessors — Power of Judge in dealin'j with
verdict — Criminal Procedure Code, lSi2, s. 233,
Expl. In a trial by a jury before a Court of Ses-
sions upon charges some of which were triable by a
jury, and some with the aid of assessors, the jury, by
a majority of four to one, returned a verdict of " not
guilty " on all the charges. Held, that it was not
competent to the Judge, who disagreed with the
verdict, to treat the trial so far as it dealt with the
latter charges, as a trial with the aid of assessors,
and concurring with the minority to convict and
sentence the accused persons. It was the duty of
the Judge, in such a case, to have accepted the
verdict as one of acquittal and then to have passed
orders in accordance with s. 263 of the Code of
Criminal Procedure. Explanation to s. 233 of the
Code of Criminal Procedure discussed. In th"
matter of Bhooth Nath Dey . 4 C. L. B. 405

12. Trial by jury of an ofTence

triable with assessors— C/-m««a^ Procedure
Code (Act X of 1882), ss. 306, 307, 300. The

JUBY— cow<(Z.

3. JURY IN SESSIONS CASES— €ow<d.

accused was tried by a jury for an offence triable
with the aid of assessors, and the jury by a majority
found him " not guilty.'' The Sessions Judge, who
disagreed with the verdict, convicted the accused,
treating the verdict of the jury as the opinion
of assessors. Held, that the conviction was
bad, inasmuch as the case was vaUdly •' tried
by a jury " within the meaning of s. 536 of the
Criminal Procedure Code (Act X of 18S2), and
the trial was complete when the jury had returned
their verdict ; and that the Judge was bound,
under the circumstances, either to give judgment
in accordance with the verdict or, if he disagreed
with it, to submit the case for orders of the High
Court, as provided by ss. 306 and 307 of the Code.
In the matter of Bhooth Nath Dey. 4 C. L. R. 405,
followed. SuRJA KuRMi V. Queen Empress

I. L. B. 25 Cale. 555

See Queen-Empress v. Jeyram Haribhai

I. L. B. 23 Bom. 696

13. Order directing trial by

^nry—Criminul Procedure Code, 18'i8 ss. 209 {1),
o36 (2) — " Particular class of offences " — Revocation
of order — Jury case tried by assessors— Omission fa
take objection before finding recorded— Validity of
trial. By s. 269 of the Code of Criminal Procedure
the local Government may, with the previous
sanction of the Governor General in Council,
by order in the official Gazette, direct that the trial
of all offences, or of any particular class of offences,
before any Court of Session, shall be by jury in any
district, and may, with the like sanction, revoke or
alter such order. In the Fort St. George Gazette,
dated 30th August 1899, it was notified that, where-
as by orders previously made the trial of persons
charged with certain offences should, in certain dis-
tricts of the Presidency, including that of Tinnevelly ,
be by jury, and whereas disturbances known as the
anti-Shanar disturbances had taken place in the dis-
trict of Tinnevelly and Madura, and certain persons
stood committed for trial and others might there-
after be similarly committed in connection there-
with, the Governor in Council, with the previous
sanction of the Governor General in Council, direct,
under s. 269 of the Code of Criminal Procedure, that
the said previous orders be revoked as regards the
persons referred to, and that such persons should be
tried with the aid of assessors and not by jury.
Certain persons having been so tried for offences
under ss. 148, 454, 395, and 323 of the Indian Penal
Code, one assessor gave it as his opinion that none
of them were guilty : the other assessor finding
some of them not guilty. The Additional Sessions
Judge convicted and sentenced all the accused,
whereupon the objection was taken, on appeal, in
the High Court, that the trial should have been
by jury and not with the aid of assessors, and that
the conviction should therefore be set a.side. The
objection was not taken at the trial. Held, that the
omission to take objection to the trial before the
Court had recorded its findings was fatal to the con-
tention now urged that the trial was invalid. Held

( 6225 )

DIGEST OF CASES.

( fi226

JTTRY—ront'I.

3. JURY IN SESSIONS CASES— :o»W.

further, that even assuming that objection had been
■duly taken, the offences connected with the
■outbreak had been rightly treated as a " class of
offences," and that it was competent to the Go-
vernment, with the consent of the Governor General
in Council, to revoke the previous notification so far
as it related to that class. Queen Empress v. Gana-
PATHi Vannianar . I. li. R. 23 Mad. 632

14. Choosing iury— Criminal

Procedure Code {Act V of ISiiS), ss. 276 to
279, 321), .')37 — Jury, selection of, how made —
Selection by lot, object of — Irregularity in selec-
tion affecting the constitution of the Court,
whether curable — Right of accused to be tried by
~ a properly- selected jury — Exemption of juror,
■when proper. The object of the provisions in
ss. 326 and 270-279 of the Criminal Proce-
dure Code is to secure an impartial trial by render-
ing impossible any intentional selection of jurors
to try a particular case ; and an accused person
has a right to claim to be tried by a jury chosen with
strict regard to all the safeguards provided therein
to secure perfect impartialit}'. S. 326, CYiminal
Procedure Code, provides that those who are to be
summoned to act upon the jury are to be drawn by
lot from among the whole bodj- of persons who are
liable to serve as jurors, and s. 276 provides that
those again who are to try a particular case are
to be similarl}' chosen by lot from amongst the
persons so summoned, or, when there is a deficiency
■of persons summoned, from amongst such other
persons as might be present in Court. When a
Judge fails to obtain a panel in this manner, it is
his duty to postpone the trial until the requisite
number of jurors have been obtained
in the manner provided by law. Where instead of
choo.sing jurors by lot, as required by s. 270, and
then hearing and deciding objections, as provided
by ss. 276 to 279, the Judge proceeded at once to
exempt some of the persons present, merely on
their own representation, and tried the accused
with the rest ; and where it further appeared that
the persons summoned to serve as jurors had not
been selected in the manner provided by s. 326,
X^iminal Procedure Code : — Held, that the jirocedure
of the Judge was vitiated bj? irregularity of a very
grave and .serious nature, such as could not be cured
by the })ro visions of s. 537, Criminal Procedure Code,
inasmuch as the irregularity affected the constitu-
tion of the Court. Brojexdka Lal Sirkar v.
King-Ejiperor(1902) . 7 C. W. N. 188

I 15. Jurors as assessors— Cn-

j minal Procedure Code {Act V of 18 'S), ss. 69
I (5), 309 — Sessions Judge sitting with jury —
I Charges of theft andadministerinx) drug — Opinion
' of only two jurors taken as assessors on
j second, charge — Validity. At the trial of an
: accused, before a Sessions Judge and a jur^',
for theft in a building (an offence triable by
a jury), and for administering a noxious substance
I (an offence triable by assessors), the Judge took
I the verdict of the jurj' on the former charge, and

JURY— cowirf.

3. JURY IN SESSIONS CASES— co74/<Z.

took the opinion of only two of them (as asses-
sors) on the latter. Held, that, under ss. 269 (3)
and 309 of the Code of Criminal Procedure, the
Judge should have taken the opinion of all the jury
as assessors, on the latter charge, and that his
failure to do so was not an " omission " or " irregu-
larity " to which s. 537 applied. Ramakrishna
Reddi v. Emperor (1903)

I. li. R. 26 Mad. 598

16.

Summons on juror —

Criminal Procedure Code {Act V of IS'iS), s.
332 — Summons xipon a juror — Absence from home
— Service, by fi.ting on door — Non-attendance of
juror — Fine. Where summons was served by
fixing the duplicate on the door of the dwelHng
house of a juror who at the time was living
awaj' from home and had no knowledge of
such service of the summons : Held, that he was
not liable to fine for non-attendance, and that the
law does not contemplate the imposition of any
obligation on persons on the jury list, either to
notifj- their change of address to the Court before
leaving their usual place of residence, or to make
anj^ arrangement for the acceptance of notice or
information to the Court of their inability to attend.
MoNi Lal Roy v. Emperor (1902)

6 C. W. N. 887

17. Power of the Judge to ques-
tion the iurj— Criminal Procedure Code {Act V of
1898), ss. 303, 304— Judge— Misunderstanding the
law — Verdict mislfilcen or ambiguous. S. 304 of
the Criminal Procedure Code (Act V of 189S)
obviously contemplates cases where the verdict
delivered is not in accordance with what was
really intended by the jury. It has no applica-
tion where there is no accident or mistake in the
delivery of the verdict ; and the mistake lies in the
misunderstanding of the law by the jury. If such
a mistake results in an erroneous verdict, it can be
corrected onl}- bj- the Judge disagreeing with the
jury and referring the case under s. 307 of the Code
to the High Court. Per C«> /ojn— " There is not
pro\ision in the Code of Criminal Procedure (Act
V of 1898), which empowers the Judge to question
the jury as to their reasons for an unanimous verdict
when there is nothing ambiguous in the verdict itself
and no lurking uncertainty in the minds of the jury
themselves regarding it. S. 303 of the Code limits
the power of the Judge to question cases in which
it is necessary to ascertain what the verdict of the
jury is — that is, where the verdict being delivered
in ambiguous terms or with uncertain sound their
meaning is not clear. Empreor r. Kondiba (1904)
I. li. E. 28 Bom, 412

18. ■ Criminal Proce-

dure Code, s. 307 — Jury not to be questioned as to
rea-fons for verdict. When the jury return a verdict
on the general issue of guilty or not guilty and theie
is no ambiguity as to the precise offence of which
the accused are convicted or acquitted, the Sessions
Judge has no power, under s. 307 of the ode of
Criminal Procedure, to question the jury as to rea-

( 6227 )

DIGEST OF CASES.

{ 6228 )

JTTRY —contd.

3. JURY IN SESSIONS CASES— concld.

sons or their verdict. Emperor v. Siranadu (1907)
I. L. B. 30 Mad. 469

19, ■ — MiBdirection— Culpable homi-
cide— Proper charge in case of culpnble honii-
scide — Direction as to truth of plea of accused, —
Mire presentation as to the effect of medical evidence
— Expression of opinion by Judge. The omission
by the Judge to lay specifically befoie the Jury
in a case of culpable homicide, the question whether
in causing death the accused had the intention to
cause death or such injury as was likely to cause
death, or the knowledge that he was likely to do so,
though in the earlier part of the charge he had ex-
plained generally the terms " murder " and " culp-
able homicide " and had pointed out the distinction,
is a material misdirection. The omission to direct
the jury to consider the truth of the plea of some
of the accused that they were not present at the
occurrence, before convicting them, is a misdirec-
tion. Misrepresentation of the efiect of the medical
evidence is a misdirection. It is a misdirection for
the Judge to express his opinion on various ques-
tions of fact without telling the Jury that his opi-
nion is not binding on them and that they are the
sole judges of fact. Natabab Ghose v. Emperor
(1908) . . . I. L. R. 35 Cale. 531

20. Depositions of witnesses if

must be read out to. It is not incumbent
on the Judge to read out the whole of the deposi-
tions of the witnesses to the jury. Fauindra
Mohan Banerji v. Tue King-Emperor n&08)

13 C. W. K". 197

4. JURY UNDER NUISANCE SECTIONS OF
CRIMINAL PROCEDURE CODE.

1 Appointment of jury — Criminal

Procedure Code, 1S72, s. 523 — Discretion of Magis-
trate. A Magistrate acting under Act X of 1872,
3. 523, should exercise his own independent dis-
cretion in selecting the members of the jury, and
the persons so selected by him should not be
nominees of the party interested in upholding the
Magistrate's order. Shatvanundo Ghosal v.
Camperdown Pressing Company

21 W. R. Cr. 43

2. . Jury improperly

constituted— Criminal Procedure Code, 1861, s. 310.
A jury appointed under s. 310 is not properly
constituted when only the foremen is appointed by
the Magistrate and the rest of the members by the
parties. Queen v. Hargobind Pal

7 B. L. R. Ap. 57

S.O. DiNo NATH Chuckerbuty V. HtTR(;OBTNP

Pal 16 W. R. Cr. 23

3. ■ . Order for re-

moval of obstruction in public %vay — Jury ap-
pointed to consider reasonableness of order — Magis-
trate deciding contrary to verdict of jury — Criminal
Procedure Code, 1S82, ss. 133, 135, 138, and 139.
One K li, having been ordered by a Magistrate

JURY— con^Z.

4. JURY UNDER NUISANCE SECTIONS OF
CRIMINAL PROCEDURE CODE— contd,

under s. 133 of the Code of Criminal Procedure
to remove an alleged obstruction, applied for a jury.
Five jurors were chosen who having examined the
place in dispute, proceeded without consultation to
deliver separate and independent opinions. The
verdict of the majority was in favour of upholding
the Magistrate's order. 'Ihe Magistrate, however,
discharged his order. On reference by the Ses-
sions Judge under s. 438 of the Code : Held, that
the last order of the Magistrate should be ret aside,
and the case remanded for consideration by a fresh
jury. Queen-Empress v. Khushai.i Ram

I. L. R. 18 All. 158

4. Criminal Pro-
cedure Code (Act V of 1898), s. 138— Use of dis-
cretion in nomination of jurors by Magistrate. In
nominating the foreman and one half of the remain-
ing members of the jury as required by s. 138 of the
Criminal Procedure Code the Magistrate must
exercise his o-\\-n independent discretion and not
appoint the nominees of the parties. Kau.ash
Chunder Sen v. Rasi Latx Mittra

I. Ij. R. 26 Calc. 869

5. — Constitution of

jury — Criminal Procedure Code, 1882, ss. 133 to
138 — Nomination of jury by Magistrate. In the
nomination of those members of the jury, the
nomination of whom devolves upon the Magistrate
under the provisions of s. 138 of the Criminal
Procediu-e Code, it is his duty to exeici=e his own
independent discretion, and not merely to accept
persons who may be put forward by the party
opposed to the applicant. A jury constituted
in violation of the provisions of s. 138 is not
legally constituted, and is incapable of making a
legally binding award. Dino Nath CMickerbutty
v. Hur Gobind Pal, 16 W. R. Cr. 23, and
Shntyanundo Ghosal v. Caw.perdown Pressing Co.,
21 W. R. Cr. 43, followed. Upenpka " Nath
Bhuttacearjee v. Khiti'sh Chanrda Bhutta-
CHARJEE . . I. Ii, E. 23 Cale. 499

6. . - Jury improperly

constituted — Criminal Procedure Code, 1872, s. 523,
In a case in which a party on whom an order had
been made for abatement of nuisance applied under
s. 523, Criminal Procedure Code, 1872, for the ap-
pointment of a jury, the ]Magistrate appointed the
complainant and two of his witnesses to be, the
former a foreman, and the latter two of the members,
of the jury. Hell, that the jury so constituted by
the Magistrate was not a proper tribunal imder s.
523, Criminal Procedure Code, and the proceedings,
etc., were accordingly set aside, and the Magistrate
directed to appoint a fresh jury. Pbinpauun Dutt
V. DWARKANATH Sein . .' 22 W. R. Cr. 47

7. Juror refusing to act—

Criminal Procedure Code [Act X of 1882), ss. 133,138,
139 — Jury illegally constituted. One out of five
jurors appointed under s. 138, Act X of 1882, de-
clir.ed to act on the jury. Iwo out of the remainder

( 6229 )

DIGEST OF CASES.

( 6230 )

JTTRY—contd.

i. JURY UNDER NUISANCE SECTIONS OF
CRIMINAL PROCEDURE CODE— confd.

of the jury V ere in favour of a temporary order
under s. 13;} being maintained, whilst the ether two
were against its being so maintained. The De^mty
Magistrate declined to pass any order under s. 139 of
the Code of Criminal Procedure, as a majority of the
jurors did not find the temporary order to he reasDn-
able and proper, and he there[ore struck oif the case.
^eW, that the course taken by the Deputy Magis-
trate was irregular, and ordered that a fresh jury be
stimmoned, and the case enquired into anew. Uma
Churn Mundle v. Joshein Sheikh

I. L. R. 11 Calc. 84

8. ■ — Appointment of second

jury — Criminal Procedure Code, 1S72, .s. 523,
Where a jurv appointed by a Magistrate under
s. 523, Criminal Procedure Code, had fully enter-
tained and considered the matter submitted to it,
and the individual members of the jury had given in
their opinion to the foreman to report to the Magis-
trate, and the only delay was in the foreman's
making the report, "it was held that the Magistrate
could not appoint a second jury to consider the
matter afresh but ought to have acted on the report
of the first jury which had been given in before he
made his final order in the matter. Nozu:.iuddy v.
Hasim Khan . . 21 W. R. Cr. 54

9. Question for ivLrj—Crimituil

Procedure Code, 1872, •^•. 523— Procedure. In a case
in which a Mairistrate ordered a person either to
remove an obstruction to a path leading to a road or
to show cause why such order should not be enforced
and in which subsequently tlie Magistrate, on the

i application of the party charged, appointed a jury
under s. 523, Criminal Procedure Code, it was held
that the question the jury should have been told to
try was the qiiestion whether the first order of the
Magistrate was reasonable and proper, and for that
purpose to consider whether there was a bond fide

■ question between the parties as to the right of way
over this particular piece of land. Omesh Chcnper
Sen v. Ichana'ih Mozomdak . 21 "W. R. Cr. 64

10. Fixing time for award of

jury — Criminal Procedure Code, 1S61, s. 310.
In referring a case regarding a nuisance to arbitra-

i tors under s. 310, Code of Criminal Procedure, a
! Magistrate should fix a time within which the arbi-
i trators are to send in their award ; and this must be
1 done whenever from any cause the com-titution of
, the jurors is changed and a fresh juror is appointed.
I Where this is not done, a Magistrate cannot carry
I out his original order if there is any delay in the
1 submission of the award by the arbitrators. In the
matter of Shama Kant Bundopapyha

14 W. R. Cr. 69

11.

A-wrard delivered after time

fixed, effect of— Criminal Procedure Code (Act
VIlloflS69), s. 310— Act X of 1S72, .<*. .523. A
Magistrate cannot receive and enforce the award
of a jury under s. 310 of the Criminal Procedure

JURY— conW.

4. JURY UNDER NUISANCE SECTIONS OF
CRIMINAL PROCEDURE CODE— concld.

Code, delivered long after the day fixed for the pur-
pose. Queen v. Haeookind Pal 7 B. Ij. R. Ap. 57

B.C. DINONATH CHUCKERBUTTY v. HrRC.iMilND

Pal 16 W. R. Cr. 23

12. Decision of jury, effect of

— Finality of decision so far as ilagi-^irate is con-
cerned. \^Tiere a jury is appointed under s. 310 of
the Code of Criminal Procedure to try whether an
order passed by a Magistrate for the removal of
a nuisance or obstruction is reasonable or not the
Magistrate is bound under that section to be guided
by the decision of the jury. Queen v. Pohoi.ee
MuLLicK . . . 12W. R. Cr. 28
13. , Criminal Pro-
cedure Code {1SS2), ss. 133, 135— Order of Jilagis-
trate for removal of vr^lawful obstruction — Appli-
cation for appointment of a jury. Where a person
against whom an order has been made under s. 133
ofthe Code of Criminal Procedure applies for a jury
under s. 135 of the Code, the applicant is bound
by the verdict of the jury, and cannot^ afterwards
raise such a plea as that the obstruction' was caused
in the exercise of a bond fide claim of right.
In the matter of the pdition of Lach:^ian

I. L. R. 22 All. 26T

14.

Report of majority of jxiry

—Criminal Procedure Code, 1872, s. -523 — L>uty of
Ulaqistrate. Where under s. 523 of the Criminal
Procedure Code, a Magistrate receives the report of
a jury, he is bound to act according to the reccm-
n-enciation of the majority, ^^^^en a number of jurors
do not agree with one another in every respect, but
all agree that a certain order passed by a Magistrate
taken as a whole, is not necessary such jurors shouM
be counted together as objecting to the order.
Queen r. Nakori Pardee . 25 W. R. Cr. 31

15_ Criminal Proce-
dure' Code, s. 133— Public uny— Nuisance— Be-
moral of oh-^truction—E<fa-<al of minority of jury to
act. When a minority of a jury appointed under
the provisions of ?. 133 of the Criminal Procedure
Code do not act, the lyiagistrate cannot proceed
under that section upon a report submitted by the
majority. In thematUrof Duroa ^iiaran Das
V. Sashi Bhusan C.lho . I. L. R. 13 Calc. 275

ie_ ; Verdict on inspection of

locality without taking evidence. A jury
cannot decile a matter retirred to tlum merely on
inspection of the locality without taking any evi-
dence Kailash Chcnder Sen v. Ham Lall
MiTTRA . . . I. L. R. 26 Calc. 869

5. WITHDRAWAL OF CASE FROM JURY.

No power of withdrawal in Court
of Session. Under the present Code of Criminal
Procedure, a Court of Session does not possess the
power to withdraw a case from the jury on any
ground whatsoever. Where the case is such that the

{ 6231

DIGEST OF CASES.

( 6232 )

JURY — conc'd.

5. WITHDRAWAL OF CASE FROM JURY—
concld.

Sessions Judge would, if he possessed the power of
withdrawing the case from the jury, exercise that
power, the High Court will exercise its powers of
revision. Jogeshwar Ghose v. King-Emperor
(1901) 5 C. W. N. 411

JUS DISPOWENDI.

.SVe Contract . I. L. R. 34 Cale. 173

JUS TERTII.

See Contract — Breach of Contract.

8 B. li. R. 581
See Escheat . 1 B. L. R. P. C 44

JUST CAUSE.

.•^ee Prohate and Admtnisteatton Act,
s. 50 . . .10 C. W. N. 955

JUSTICE, EQUITY, AND GOOD CON-
SCIENCE, DOCTRINE OF.

Spe Burma Courts Act. 1889. s. 4.

I. li. R. 26 Cale. 1

See Civil Prockdure Coui:. 1882, s. 102.

I. L. R. 22 Cale. 8

See CoAiPANY — Winding up — Costs and

Claims on Assets.

I. li. R. 16 All. 53
See. Hindu Law — Inheritance — Illegi-
timate Children.

I. L. R. 13 All. 573

.JUSTICE OF THE PEACE.

See Foreign Jurisdiction Act, 1870.
ss. 4, P and 8 I. L. R. 26 Mad. 607
See High f^ouRT, jurisdiction of —
Madras — Criminal.

I. L. R. 12 Mad. 39
See Judicial Notice

1 B. li. R. O. Cr. 15
See Jurisdiction of Criminal Court —
European British Subjects.

7 Bom. Cr. 1
I. li. R. 5 Mad, 33

•JUSTICES, SUIT AGAINST.

See Calcutta Municipal ^ct, ISO:}, s.
22() . 8 B. li. R. 265

— 5 justification plea of—

See I.IK F.I . I. L. R. 36 Cale. 883

XABULIAT.

1. Form of Kabuliat

2. In respect of what Suit lies

Col.
6232
6233

KABUlilAT— con«(i.

3. Right to sue ....

4. Requisite Preliminaries to Suit

5. Proof necessary in Suit .

6. Decref for Kabuliat

Col.
. 6234
. 6235
. 6237
. 6240

See Acquiescence . 7 C. "W. N. 170

See Bengal Tenancy Act. s. 29 {b).

9C. W.N. 265

See Co-sharers — Suits by Co-sharers
with respect to the Joint Pro-
perty— Kabuliats.
See Evidence — Parol Evidence —
Explaining Written Instruments
and Intention op Parties.

6 C. W. N. 242

See Evidence Act (I of 1872), s. 91.

11 C. W. N. 62

See Interest . 1. L. R. 32 Cale. 258
See L.A.NDL0RD and Tenant.

I. L. R. 32 Cale. 41 ; 395

See Rent . . I. L. R. 33 Cale. 140

Varying or contradicting Written

Instruments . 6 C. W. N. 60

>See Joint Tenancy . 6 C. W. N. Ill

See Jungleburi Lease.

I. L. R. 31 Cale. 960
See Lease.

See Specific Performance — Special
Cases . . I. L. R. 3 Cale. 464

suit for-

See CO-SH.A.RERS — Suits by Co-sh.\rers

WITH RESPECT TO JoiNT PrOPERTY'^ —

Kabuliats.
suit to set aside-
See Bengal Tenancy Act, s. 29.

I. li. R. 28 Cale. 90

without a lease —

See Landlord and Tenant.

I. L. R. 31 All. 276

1. FORM OF KABULIAT.
— Date for eommencement of

kabuliat — Discretion of Court — Sail for kabu-
liat without specifying date. Where a plaint asks
for a kabuliat for a given term, without specifying
the date from which the term is to commence, it
is in the discretion of the Court to fix the proper
term. Poorno Chunder Roy v. Stalkart

10 W. R. 362

See Gholam Mahomed v. Asmut Ali Khan
Chowdhry . . B. L. R. Sup. Vol. 974

2. Omission of specification of

boundaries in kabuliat— Jc« X of 1859, s. 2.

( 6233 )

DIGEST OF CASES.

( 6234 )

KABTJLIAT— conW.

1. FORM OF iKABXJLl AT— concld.

The want of specification of boundaries in a kabuliat
is no ground for dismissing a suit for a kabuliat,
when all the particulars of area are given as required
by s. 2 of Act X of 1859. Ramnath Rakhit
V. Chand Hari Bht'ya

6 B. L. R. 356 : 14 W. R. 432

2. IN RESPECT OF WHAT SUIT LIES.
1. Suit for kabuliat for portion

of land — Land indatted in an entire holding.
A suit for a kabuliat will not lie for a portion only
of the land included in an entire holding. Ram
Doss Bhuttachabjee v. Ramjeebun Poddar

6 W. R., Act X, 103

Abdul Ali i'. Yar Ali Khan Chowdhry

8 W. R. 467

Land held under

istemrnri tenures. A landlord cannot sue for a
kabuliat in respect of a portion of the land held un-
der an istemrari pottah. Doorgakant Mozoomdar

V. BiSHESHUR DdTT ChOWDHRY

W. R. 1864, Act X, 44

— Proprietor
The question

of
was

I fractional share in estate

1 referred to a Full Bench " whether a suit by the

I owner of a fractional share of an undivided estate

j for a kabuliat will lie." Norman, J., was of

opinion that, as a general rule, the holder of a

I tenure cannot be sued by owners of fractional

1 shares in the superior tenure for separate kabuliats

I according to the proportions to which they

j allege themselves to be entitled in the superior

tenure. A tenure is an entire thing, and cannot

be sub-divided against the will of the tenant.

Loch, Bayley, Macpherson, and Mitter, J J.,

I did not answer the question on the ground that

it did not arise in the suit. Indar Chandra Dtjgar

V. Brindabun Bhaba

8 B. L. R. 251 : 15 W. R. F. B. 21

4. Uncultivated lands

brought into cultivation. A separate kabuliat can-
not be claimed for uncultivated lands already com-
' prised in a lease on the ground that such unculti-
I vated lands have since been brought into cultiva-
I tion. Mahomed Kaloo Chowdhry v. Fedaye
IShikdar . . . . 8W. R. 219

I 5. . Right of fishery. A suit for a

kabuliat will not lie for a right to fish in certain

waters. Mohun Gobind Sein v. Nittaye Haldar

6 W. R., Act X, 101

6. Suit for etmami kabuliat—

Jurisdiction. A suit by a proprietor of land for an
etmami kabuliat from his tenants at the prevailing
rates is cognizable only under the Rent Act. Nus-
SURUT Ali Chowdhry v. Mahomed Kanoo Sikdar
11 W. R. 541

Land occupied by buildings

— Jurisdiction — Building used as dwelling-house,

KABULIAT— conid.

2. IN RESPECT OF WHAT SUIT LIES— conc/rf.

manufactorii, or shop. Where the land in respect
of which a kabuliat is demanded is occupied by a
building used as an ordinary dwelling-house, manu-
factory, or shop -.—Held, that a suit for delivery of a
kabuhat in respect of such land is not cognizable
under the Rent Acts. If such land formed part of
an agricultural holding and was auxiliary to its en-
joyment, it would form a portion of the holding, and
the landlord would be entitled to demand a kabuliat
in respect of the entire holding, not excluding the
land on which the building is erected. The principle
of this decision will apply equally to suits brought to
obtain payment of perjout as rent. Chotuck
Pandoo v. Innayut Ali

3 Agra 49 : s.c. Agra T. B. Ed. 1874, 131

8. Suit by mutwali to obtain

kabuliat from khadim — /arisdirtion. A suit
by the mutwali of a mosque to obtain a kabuliat
from a khadim, or subordinate servant attached to
the mosque, will not he under the Rent Act.
HiDDUT Ali v. Kobeemalla Meeajee

6 W. R., Act X, 9

9. Suit to set aside Collector's

order for kabuliat — Jurisdiction. A suit to .set
aside a decree passed by a Deputy Collector for exe-
cuting a kabuliat in favour of the defendant, and for
a declaration that the land in suit pertains to the
talukh of a third party, is cognizable under the Rent
Act. SoNATAN Roy v. Anand Kctmar Mookerjee

2 B. L. R. Ap. 31 : 11 W. R. 98

3. RIGHT TO SUE.

1. Requisites for maintenance

of SMit— Evidence of relationship of landlord ami
tenant. In order to maintain a suit for a kabuliat.
the plaintiff must show that the relation of landlord
and tenant existed between him and the defendant.
Ramessixr Audhikaree v. Watson & Co.

7 W. R. 2

Jalha v. Koylash Chunder Dey

10 W. R. 407

ChunderNath Nag Chowdhry c. Asanoollah
MuNDUL .... low. R. 438

Sreemunto Koondoo v. Bkuo.vatii Pvit, Chow-
dhry . . . • 16 W. R. 296
Keisurya v. Chotoo 1 N. W. 78 : Ed. 1873, 131
Muhesh Dutt Pandey v. Sei-tii. SoV ak

1 N". W. Ed. 1873, 146

2. Agreement fixing rent —

Raiijat without right of occupancy. A landlord can
sue a raiyat not having a right of occupancy for
a kabuliat only when an agreement fixing the rent
has been entered into. Ahmed Reza v. Aghori

2 B. L. R. S. ]Sr. 15

3. Allegation of tenancy.

Quaere : Whether a suit for a kabuliat on an
allegation that the defendant is holding a specific

{ 6235 )

DIGEST OF CASES.

( 6236 )

KABULIAT— cowW.

3. RIGHT TO SUE— concld.

C|Uantity of land under the plaintiff will lie.
Yakoob Ali v. Kaejioollah . 8 W. R. 329

Proof of right to assess as

tenant. Until the right to assess has been
properly determined, a suit for a kabuliat Avill
not lie under Act X of 1859. Ramnath Sixgh v.
HrEo Lall Pandey . . . 8 W. R. 188
Suit for resumption — Lmid

claimed to be lakhiraj — Obligation of landlord to
sue for resumption. A landlord is not bound to
sue for resumption before bringing a suit for a
kabuliat in respect of lands which the defendant
claims to hold as lakhiraj. Fuzlon v. Abdullah
7 W. R. 169

6. Proof of right to rent — Decree

declaring liability to assessment. Where the tenure
of a defendant is declared liable to assessment in a
suit passed between him and the plaintiif's vendor,
the plaintiff can sue for a kabuliat, as he is thereby
only carrying out the provisions of the decree ob-
tained in that .suit. Modhoosoodttn Chowdhry v.
Ram Mohux Ghur , . . 8 W. R. 473

7. Proof of right to

rent — Suit for declaration of liability to assessment
and for kabuliat. A suit for a kabuliat cannot be
maintained where the parties are not related to each
other as landlord and tenant. But a landlord may
legally sue for a declaration of the amount of rent
■with which his land ought to be assessed ; and should
the occupant not agree to the rent assessed by the
Court, the landlord may sue him for use and occu-
pation, or for ejectment, or for both. Shunto

Doss AUTITH V. HUEEEHUR MuKEEJEE

20 W. R. 268

Proof of right to

rent — Trespasser — Decree in summary suit for pos-
session. A zamindar cannot compel a trespasser on
his land to become his raiyat and execute a kabuliat
in his favour, and the fact that the zamindar has ob-
tained a summary decree under s. 15, Act XIV of
1859, against a person, does not entitle him to treat
such person either as a trespasser or a raiyat on his
land. Hemalee v. Kujila Kant Banerjee

16 W. R. 133

4. REQUISITE PRELIMINARIES TO SUIT.

!• TTotice of enhancement.

A suit for a kabuliat at an enhanced rate, to take
•effect prospectively from the date of suit, may be
instituted without any preliminary notice of en-
hancement, and at anv time durinsr the tenancv-
Brae v. Kumttl Shaha " . 4 W. R., Act X, "5

^' ~ Landlord and

tenant. Held per Steer, Kemp, and Sbton-Karr,
J J., that, under Act X of 1859, a landlord can sue
his tenant for a kabuliat fixing the amount of rent,
without having served upon him notice of enhance-
ment. Per Norman, J._Such notice was necessarv,
and by s. 9 of Act X of 1859 the landlord must

KABULIAT— oonW.

4. REQUISITE PRELIMINARIES TO SUIT—

contd.
before suing for a kabuliat, tender a pottah to the
tenant. Per Peacock, C.J. — The question did not
arise in the case. The relationship of landlord and
tenant did not exist between the parties. Ram
Kanth Chowdhry v. Bhubun Mohun Biswa.s

B. L. R. Sup. Vol. 25 : W. R. F. B. 183

WOOLFUT HOSSEIN V. JUMOONA DaSS

W. R. 1864, Act X, 60

DooRGA Pershad Doss v. Kalee Kinkur Eoy
5 W. R., Act X, 88

3. .Act X of 1859, ss,

9 and 13. Held, by the majority of a Full Bench,
that a landlord can sue for a kabuliat at an en-
hanced rate without first having given notice of
enhancement under s. 13, Act X of 1859. He can
also sue without having first tendered a pottah.
Per Peacock, C.J. — He can sue if he has given
notice of enhancement. Per Norman, J. — A suit
for a kabuliat is not maintainable except in cases
provided for by s. 9, Act X of 1859. Thakoo-
ranee Dassee v. Bisheshur Mookerjee

B. L. R. Sup. Vol. 202 : 3 W. R., Act X, 29

Suffer Ali v. Futteh Ali

W. R. 1864, Act X, 2

Tarinee Churn Bose v. Kashinath Singh

W. R. 1864, Act X, 37

4. Tender of pottah — Decree

contingent on offer of pottah. The previous tender
of a pottah is not absolutely necessary to entitle a
landlord to a decree for a kabuliat. The decree
may make the obtaining of the kabuliat contingent
on the offering of a corresponding pottah.

Munsoor Ali v. Bunco Singh . 7 W. R. 282

Nityanund Ghose v. Kissen Kishore

W. R. 1864, Act X, 82

Mahomed Yacoob Hossein v. Chowdhry
Wahed Ali

4 W. R., Act X, 23 : 1 Ind. Jur. W. S. 29
Govind Chunder Addy v. Auloo Beebee.

1 W. R. 49

Modhoosoodun Chowdhry v. Ram Mohun
Ghur 8 W. R. 473

5. Landlord and

tenant. In order to entitle a landlord to sue for a
kabuliat, he must tender a pottah. Akhoy' Sunkuk
Chuckerbutty v. Indro Bhusan Deb Roy

4 B. li. R. F. B. 58
12 W. R. F. B. 27

Pertab Chunder Banerjee v. Phillippe

2 W. R., Act X, 56

Troyluckhonath Chowdhry v. Kaleema Bibee
2 W. R., Act X, 96

Umbica Churn Pottro v. Boidanath Pottro
1 W. R. 82

Act X of 1859,

s. 9. A landlord is not entitled under Act X ol

( 6237

DIGEST OF CASES.

( 6238 ; )

■KABVl.lAT—conkl.

4. REQUISITE PRELIMINARIES TO SUIT—

concld.

1859, s. 9, to require his tenant to give him a kabuli-
at unless the tenant holds under a pottah, or the
landlord has tendered a pottah. Gubixlai.l
Seal v. Kinoo Koyal . . Marsh. 400

DooRGA Kant Mozoomdar v. Bishesiiur Dutt
Chowdhry . . W. R. 1864, Act X, 44
7. Issues— Interven-
ers. Where a suit is brought for a kabuliat
after service of the proper notice, the first and main
question is whether, as a matter of fact, the plaintiff
can establish that he or some person from whom he
derives title, put the defendant into possession of all
the lands in respect of which the kabuliat is de-
I manded ; and the second question is whether he has
tendered a proper pottah, and is therefore entitled
. to the corresponding kabuliat. For the decision of
, such a suit is immaterial whether the land for
i which the kabuliat is demanded belongs in realitj'
I to the plaintiff or to third parties, and the Court
• should not allow the latter to come in as interveners
I against the will of the plaintiff. Radha Nath
t Chowdhry v. Joy' Soonder Moitra

2 C. L. R. 302
j

5. PROOF NECESSARY IN SUIT.

! 1. Evidence of quantity of

land — Failure to prove quantity. In a suit for
obtaining a kabuliat, failure to prove the exact quan-
tity of land for which the kabuliat is sought to be
obtained renders the suit liable to dismissal. Shir
Ram Ghose v. Prax Piria

4 B. L. R. Ap. 89 : 13 W. R. 280

2. Proof of reasonable rent —

Proof of holding land in suit — Onus of proof. A
landlord suing a raiyat for a kabuliat is bound to
make out the reasonableness of the rent wliich he
demands, and d fortiori that the defendant is hold-
ing the particular land specified in his suit.
Shib Chunder Bose v. Ram Chund Chund

9 W. R. 521

3. Rate of rent, evidence of —

Customary rate of rent. A landlord is bound to
prove that the rate of rent at which he claims a
kabuliat is the rate that he has been in the habit of
receiving from the tenant. Ram Jeebun Chuck-

ERBUTTY v. KhOODEERAM Ctt.\TTERJEE

17 W. R. 388

4. ■ Failure to prove

rate of rent — " Probable rent." In a suit for a
kabuliat for certain resumed lalvhiraj where it
was found that the quantity of land in the defend-
ant's possession was less than that alleged by
the plaintiff", and that the rates of rent deposed to
were less than those claimed :—^fW, that the suit
•was rightly dismissed, and that the mere use of the
word " probable " in describing the rate of rent
claimed ought not, under the circumstances, to bet-
ter the position of the plaintiff ; the entire gist of the

KABULIAT— €onW.

5. PROOF NECESSARY IN SUIT— contrf,

suit having been to get a certain rate of rent. Held
(by MiTTER, J.), that the mere fact of the lands in
question having been declared in a previous litiga-
tion between the parties to the mal lands of the
plaintiff's zamindari wrongfully held by the defend-
ant under an invalid lakhiraj title was not sufficient
to convert the defendant into a tenant of the
plaintiff ; and that, as the relation of landlord and
tenant did not exist between the parties, the found-
ation was wanting for a suit for a kabuliat. Sow-
daminee Debia v. Mohesh Chtjndek .^Iih.kERJEE
19 W. R. 262

5' " Landlord and ten-

ant—Enhancemenf^~Plainl~Decree. A landlord,
who sues for a kabuliat at a specified rate, but fails'
to show that such rate is fair and equitable, is not
entitled to a decree for a kabuliat at a less rate, but
the suit must be dismissed. Held, also (Phear,
J., doubting), that in a suit for a kabuliat the plaint
should specify the date for the commencement of the
kabuliat. A plaint which does not specify such date
ought to be returned ; but if it has been admitted
and the case heard, the Court maj^ supply the omis-
sion by specifying in the decree the date from which
the kabuliat is to commence. Gholam Maho.med v.
AsMUT Ali Khan Chowdhry

B. L. R. Sup. Vol. 974 : 10 W. R, F. B. 14

Hamid Alee v. Afeeoodeen

1 B. L. R. S. ]Sr. 14 ; 10 W. R. 213

DiNDAYAL PaRAMANIK V. SURENDRANATH ROY

3 B. L. R. A. C. 78 note : 10 W. R. 77

6. Failure to prove

rate of rentr— Tenure invalid lakhiraj. Held, that
the principle of the Full Bench decision in the case
decided on the 19th March 1868, Gholam Mohamed
V. Asmut Ali Khan Chowdhnj, B. L. R. Sup. Vol.
994 : 10 W. R. F. B. 14, applies as much to cases,
in which defendant has held under an invalid lakhi-
raj as to raiyats whose rents are to be enhanced.
Imdad Hossein v. Stack . . 12 W. R. 454

7. Suit for kabuliat

at rate other than fair and equitable. A suit for a
kabuliat at a given rent, where the rent claimed is
found to be above what is fair and equitable, is a
suit for enhancement to which the Full Bench rul-
ing— Gholam JIahomed v. Asmut Ali Khsn Chow-
dhry, B. L. R. Sup. Vol. 974 : 10 W. R. F. B.
14 — applies, even though the rent is asked only for
excess land. Kunchun Deo Singh v. Tekait iSion
Nath Singh . . . . 15 W. R. 289

8. • Failure to prove

rate of rent — Right to kabuliat at fair rent after
notice of enhancement. Where a tenant has had full
and timely notice of the grounds on which his land-
lord claims a kabuliat at enhanced rates, the land-
lord is entitled to a decree for a kabuliat for what he
may prove to be a fair and legal demand, notwith-
standing his failure to prove liis right to a kabuhat
at the rate fixed by him. The Full Bench ruling in
Gholarn Mahomed v. Asmut Ali Khan Chowdhry, B.

( 6239 )

DIGEST OF CASES.

KABULIAT— co7iW.

5. PROOF NECESSARY IN SVlT—contd.

L. R. Sup. Vol. 974 : 10 W. R. F. B. 14, not apply-
ing to a case where notice of enhancement has been
given. GoPEENATH Jannah v. Jetoo Mollah

18 W. B. 272

Failure to prove

rate of rent — Suit for kabuliat and assessment
after resumption. A party, ha ving obtained a decree
for resumption declaring that he was entitled to
assess rent upon certain land, brought a suit for a
kabuliat. The first Court found that the extent of
the land was less than that alleged in the plaint, and
the rate of rent to which the plaintiff was entitled,
lower than that claimed. Accordingly it decreed a
kabuliat for the proper quantity of land at the pro-
per rate. The lower Appellate Court dismissed the
suit on the ground that the plaintiff had not proved
the claim stated in the plaint. Held, that the Dis-
trict Judge had rightly applied the decision in
Gholam Mahomed v. Asmut AH Khan, B. L. R. Sup.
Vol. 974 : 10 W. R. F. B. 14, which was equally
applicable to cases in respect of lands foi the first
time resumed and assessed. Jellok Rtthman v.
Seetabam Dutt . . . 21 W. R. 224

10. Enhancement of

rent — Presumption of landlord's willingness to
grant pottah. In order to entitle a landlord to sue
a tenant for a kabuliat at a certain rate of rent, he
should either have tendered a jjottah to the tenant
at the rate of rent mentioned in the kabuliat, or he
should be willing to grant a pottah at that rate ; and
if the Court considers that the rent which he claims
is the correct amount, it will presume that he is
ready to grant a pottah at that rate, and will give
him a decree for the kabuliat. But this presump-
tion will not hold if the Court thinks that the rate
claimed is too high ; and in such a case, therefore,
the presumption having failed, the landlord will not
be entitled to a kabuliat at such lower rate as the
Court may think just, but \\\^ suit will be dismissed.
Golam Mahomed v. Asm,ut Ali Khan Chowdhry, B. L.
R. Sup. Vol. 9,4: 10 W. R. F. B. 14, followed.
Gopeenath Jannah v. Jetoo Mollah, 18 W. h., 272,
dissented from. Gogon Manji v. Kashishwary
Debi . . . . I. L. R. 3 Cale. 498

s.c. Gogon Manji v. Gobind Chunder Khan

1 C. L. R. 241

11. Enhancement of

rent — Pottah, Tender of — Form of decree. If a
plaintiff brings a suit for a kabuliat at an enhanced
rate against a tenant holding a mouzah under Iiim at
a wholly insufficient rent, and the tenant sets up a
wholly false and fraudulent defence, — e.g., that the
rent he pays is not liable to enhancement, as he holds
under a pottah which entitles him to hold so long as
he pays a certain fixed rent quite irrespective of the
value of his holding ; and if on enquiry it is found
that the defendant's plea is entirely false, and that
he is not entitled to hold at any fixed rent, but only
on payment of a fair rent with reference to the value
of his holding, still if it be found that the plaintiff
has at all overestimated the amount of rent to which

KABULIAT— concW.

5. PROOF NECESSARY IN SUlT^^oncld.

he is entitled, his suit must be dismissed with costs..
Brojo Kishoke Singu v. Bharrut Singh Moha-
PUTTUR . . . . I. L. R. 4 Calc. 963

Mahomkd Assur v. Pogose . 2 C. li. R. 8-
6. DECREE FOR KABULIAT.

1. Form of decree — Specification

of duration of kabuliat — Decree in suit for kabu-
liat. In a decree for a kabuliat the term for which
it is to remain in force should not be fixed. Swae-

NAMAYI V. GaURI PrASAD DaS

3 B. L. R. A. C. 270

2. Kabuliat, Decree

for, icithout fixing term, effect of. Where a suit
for a kabuliat at an enhanced rent is decreed without
any term being fixed by the Court, the kabuliat exe-
cuted is inoperative beyond the year of demand.
Kristo Chunder Murdkaj v. Poobosuttum Dass
15 W. R. 424

MoDHOO Ram Dey v. Boydonath Dass

9 W. R. 592
KADIM HAKS.

See Inamuar . I L. R. 28 Bom. 276

KAMAT LAND.

See Bengal Tenancy Act, 1885, s. 116.

12 C. W. H". 904
KANOM.

See Malabar Law.

I. li. R. 27 Mad. 26 ; 373

■ Transfer of Property

Act {IV of 18S2), ss. ■J9, 9,S — No notice necessarif to
determine kanom right — Reneioal of kanom can be
effected only by registered deed — Document, construc-
tion of. The demisor in an instrument of kanom
added at the end the words '' you shall obtain a
renewed demise on the expiration of every
twelve years and thus hold the kanom " and the
corresponding kychit of the demise contained
at the end the words ; '' I shall obtain a renewed
demise on the expiration of every twelve years
and thus hold the lands." No mention was made
of the rent payable on such renewals. No such
renewal was made by a registered instrument
although the demisee alleged that he had paid the
renewal fees. In a suit by the demisor to redeem
the kanom i — Held, that the document contained no
covenant for perpetual renewal. Held, also, that
the transaction was not a mere lease, but was an
anomalous mortgage under s. 98 of the Transfer
of Property Act, and no notice was required as in
the case of leases to determine it. Held, further,
that a renewal can only be effected by a registered
instrument under s. 59 of the Transfer of Property
Act. Kurri Veerareddy v. Kurri Bapireddy,
I. L. R. 29 Mad. 336, followed. Gopalan Nair v.
Ktjnhan Menon (1907) . I. L. R. 30 Mad. 300

( 6241 )

DIGEST OF CASES.

( 6242 )

KANUNGO.

See Penal Code, s. 186.

6 C. W. N. 120
KANYA.

See HiNDTT Law — Inheritance.

I. L. R. 31 Bom. 495
I. L. R. 36 Calc. 86
KAENAM.

See Hereditary Offices REcrLATiONS.

5 Mad. 360
See Hindu Law — Inheritance — Special
Heirs — IVLvles — Daughter's Son.

I. L. R. 18 Mad. 420

See Madras PxEgulation XXIX of 1802.

4 Mad. 234

I. L. R. 9 Mad. 214 ; 283

I. li. R, 10 Mad. 226

I. L. R. 11 Mad. 196

I. L. R. 18 Mad. 420

See Madras PiEVENue Recovery Act,

s. 52 . . I. L. R. 15 Mad. 35

See Public Servant.

I. L. R. 15 Mad. 127

See Eight of Suit — Office or Emolu-
ment . . I. L. R. 10 Mad. 226
I, L. R. 15 Mad. 284
I. L. R. 21 Mad. 47
I. L. R. 23 Mad. 47
See Small Cause Court, Mofussil—
Jurisdiction — Government, suits
against . I. li. R. 18 Mad. 395
Right of women to hold office

of karnam. Women are incapacitated from hold-
ing the office of karnam. Alymalatnmal v. Ven-
kataramayyan, S.D. A. Mad. (1S44) So, followed.
Venkataratnamma v. Ramanujasami

I. li. R. 2 Mad. 312

O-IJice of karnam

»» zamindari village — Right of woman to
Mad. Beg. XXIX of 1802, s. 7. A woman cannot
hold the office of karnam. Chandramma v. Ven-
kataraju . . I. L. R. 10 Mad. 226 j

3. Rights of de facto karnam —

Presumption of ajypointment from long tenure —
Limitation. A filed a plaint on 28th June 1882 for
a declaration of his title as karnam of a village and
for arrears of dues payable to him as such, including
those for Fasli 1288, which accrued due on 1st July
1879. His family had held the office and discharged
its duties for three generations, but there was no
evidence of any formal appointment of A or his
ancestors. Held, that the plaintiff was entitled to
the dues as de facto karnam, and his claim was not
barred in respect of any of the arrears claimed.
Ganapathi v. Sitharama . I. L. R. 10 Mad. 292

4. — Karnaxa in permanently-
settled estate— Jiac/. Reg. XXXV of 1802,
S8. 8 and 11— Mad. Reg. XXIX of 1S02, s. 5—
Right to sue for removal of karnam — Delegation of
such right to lessees of zamindari — Damages accrued
by a karnam' s neglect of a statutory duty. The

VOL. in.

KARNAM— confrf.

lessees of a zamindari are not entitled to sue for the
removal of a karnam from office, though their
lease contains a provision purporting to authorize
them to appoint and remove karnams, but if they
suffer any loss from the karnam's neglect of his
statutory duty, they are entitled to brinf; an action
for damages against him. Kumarasami Pillai v.
ORR • . . . I. L. R. 20 Mad. 145
KAENAVAN.

See Malabar Law.

I. L. R. 27 Mad. 375
I. L. R. 29 Mad. 206

See Malabar Law' — Endowment.

See Malabar Law — Joint Family.

See Malabar Law — Maintenance.

KATHIAWAR STATES, WHETHER
BRITISH TERRITORY.

See Native States . 10 C. W. N. 361
KATTUBADI.

See Rent . . I. L. R. 22 Mad. 12

KAZI.

See Collector . I. L. R. 18 Bom. 103

See Hereditary Offices Act, s. 13.

I, L. R. 18 Bom. 103
I. L, R. 19 Bom. 250

See Mahomedan Law — Custom.

I. Ii. R. 1 Bom. 633
See Mahomedan Law — Kazi.

of Bombay.

^ee Mahomedan Law — Endowment.

I. L. R. 18 Bom. 401

KEITIMA ADOPTIOM".

See Burmese Law.

I. L. R. 32 Calc. 219

KHAIRAT BISHANPRIT.

See Grant . I. L. R. 31 Calc. 561

KHAMAR LAND.

See Civil Procedure Code (Act XIV op
1882), s. 211 . 12 C. W. N. 285 ; 650

KHARWA COMMUNITY OF BROACH.

See Husband and Wike.

I. L. R. 31 Bom. 366
KHATA.

iSee Civil Procedure Code, 1882, s.
257A . I. Ii. R. 28 Bom. 310

KHAZANCHI.

See Criminal Procedure Codes, s. 45
(1872, s. 90) . I. L. R. 4 Calc. 603
KHOJA MAHOMEDANS,

See Hlndu Law — Custom — Inheritance

AND Succession 12 Bom. 281 ; 294

I. L. R. 3 Bom. 34

( 6243 )

DIGEST OF CASES.

( 6244 )

KHOJA MAHOMEDANS— "owW.

See Religious Community.

12 Bom. 323

See Wilt. . . I. L. R. 29 Bom. 133

1. Distinction between ances-
tral and self- acquired property among
Khoja Mahomedans — Partition — Right of a son
to ohfain pnrtitinn of rcnrpKtrnl fropi'rtii in his father' s
lifetime without his father's consent — Burden of prov-
ing property to he self -acquired. Amon2;st Khoja
Mahomedans a son is entitled to obtain partition of
ancestral estate in his father's lifetime without his
father' s consent. By the law and customs of Khoja
Mahomedans there is a distinction between ancestral
and self-acquired pronerty in reference to the
power of the owner to devise or make a gift thereof
similar to that which obtains under the ordinary
Hindu law. The presumptions of the Hindu law
apply to Khoja Mahomedans, and the burden of
proving propositions opposed to that law lies on him
who alleges them. Therefore in a suit for partition
brought by a son against his father, who alleged that
the customs and usages of the Khoja community
in matters of partition were not identical with the
Hindu law, and did not confer on a son any right
to demand in his father's lifetime a partition of the
property in the father's hands, whether ancestral
or self -acquired : — Held, that the burden of proving
the issues framed upon these allegations lay on the
defendant. In considering the question of the
alleged custom and usages the Court adhered to
the less stringent rule of proof applied in Hirbai v.
Gorbai, 12 Bom. 294. In the same suit where the
defendant, having failed to establish the existence
of the special custom and usages abovementioned,
yet resisted the plaintiff's claim to partition on the
ground that the ])roperty claimed was not an-
cestral : — Held, that the onus was on the plaintiff in
the first instance to give evidence that the property
was ancestral. In such cases the amount of the
evidence required to shift upon the defendant the
burden of displacing it depends on the circum-
stances of each case. Cassumbhoy Ahmedbhoyw.
Ahmedbhoy Habibhoy I. L. R. 12 Bom. 280

Held, on appeal, that the rule that Hindu law as
administered in the Bombay Presidency, in the
absence of proof of customs to the contrary, is the
law applicable to Khoja Mahomedans, is not to be
understood in its widest sense, but as confined to
simple questions of inheritance and succession. The
right of a son to partition in the lifetime of his
father, more especially where moveable property is
concerned, is one upon which the greatest doubt and
difference of opinion has always prevailed, and
consequently there is no presumption in favour of
its inclusion in the Hindu law, which, in the absence
of proof of custom to the contrary, is applicable to
Khoja Mahomedans. The onus is on the party
alleging such a right in the case of Khoja Mahome-
dans to prove it. Held, on the evidence, that it was
not established that amongst Khojas in Bombay
there was any recognized right of a son to demand
partition in the lifetime of his father, although
it was proved to be customary in Kathiawar and

KHOJA MAHOMEDANS— cowc?i.

Cutch for a father to give a son who wished for it
his share of the family property, both ancestral and
self-acquired. Held, also, on the evidence, that
there was no sufficient proof of the property, of
which the plaintiff sought partition, being ancestral
property in the hands of his father. Where wealth
amassed by an individual in trade is said to be
ancestral in the hands of that individual, it is not
enough to show that he inherited some property ;
it must be shown that the property inherited con-
tributed in a material degree to the wealth so
amassed. Ahmedbhoy Hubibbhoy v. Cassumbhoy
Ahmedbhoy . . I. L. R. 13 Bom. 534

2. Succession and inherit-

ance— Marriage by Mahomedan rites — Hindu
Laiv — Widoiv— -Maintenance. Although a Khoja
and his wife are married according to Mahomedan
rites, yet at the time of his death, so far as regards
the succession of his property he is a Hindu. If
his brothers lived joint with him, his widow
would be entitled to maintenance out of his estate,
while his property devolved on them. According
to Vyavahar Mayukh, which governs Khojas for the
purpose of inheritance and succession, when a
person inherits the estate of the deceased, he takes
it as an universitas with all the rights and liabil-
ities annexed to it. Maintenance of those whom
the deceased was bound to maintain and payment
of his debts are liabilities, which are annexed to
the estate in the hands of those who take it.
Rashid v. Sherbanoo (1905)

I. Ii. R. 29 Bom. 85

KHORPOSH GRANT.

See Grant

9 C. W. N. 1073

See Khorposh Grant.

LL. R. 33 Gale. 363

Temporary disability of

such grantee to contract, his estate being subject to the
provisions of Chutia Nagpur Encumbered Estates Act
{VI of 1876) — Ratification, effect of. A granted
a khorposh lease, when he was under legal disability,
his estate being subject to the provisions of the
Chutia Nagpur Encumbered Estates Act (VI of
1876). Subsequently, when his disability ceased, he
ratified the lease. Held, that it was quite competent
for a person emerging from a state of disability to
take up and carry on the transaction commenced,
while he was under disability, and A having subse-
quently ratified the lease, it was a perfectly good
lease and was binding on him. Gregson v. Udoy
Aditya Deb, I. L. R. 17 Calc. 223 : L. R. 16 I. A.
221, followed. Roy v. Ram Jiwan Singh (1905)
I. L. R. 33 Calc. 363
S.C. 10 C. W. W. 149

KHOTI ACT (BOM. ACT I OF 1865).

See Bombay Survey and Settlement
Act.

( 6245 )

DIGEST OF CASES.

{ 6246 )

KHOTI SETTLEMENT ACT (BOM. ACT
I OF 1880).

See Khoti Tenure.

I. L. R. 8 Bom. 525
I. Ii. E. 13 Rom. 373

See Khots.

See Lease — Construction.

I. L. R. 13 Bom. 373

See Statutes, construction of.

I. L. R. 18 Bom. 133

SS. 3 (5) 9, 10 — Privileged occupant-

DhariJcari, quasi-dharikari. Occupancy tenant —
Transfer of land to another on sale — Not a
resignation so as to be at the disposal of the Khot.
By transferring his land on sale, an occupant
does not resign it within the meaning of s. 10 of
•the Khoti Act (Bom. Act I of 1880), so as to
place the land at the disposal of the Khot.
Ramchandra v. Dattatraya (1907)

I. L, R. 31 Bom. 267

. BS. 6, 7, 8, 9, 11 — Khot — Occupancy-
tenant — Mortgage by occupancy-tenant — Forfei-
ture. There is no authority for saying that an occu-
pancy-tenant, whose tenancy is not determined,
forfeits his tenancy by parting temporarily with
the possession of his land to another without resign-
ing the land as completely as would be necessary, in
•the case of privileged occupants of another sub-
class, to place the land at the disposal of the khot.
And so long as his tenancy is not determined, the
land Is not at the disposal of the khot. And the
khot cannot claim to treat the person in possession,
under a right derived from the occupancy-tenant,
'either as a trespasser or even as a yearly tenant, so
long as the privileged occupant's rights remained
undetermined by resignation, lapse or duly certified
forfeiture. Yesa bin Rama v. Sakharam Gopal
(1905) . . . ^ I. L. R. 30 Bom. 290

■ s. 8 — Khot — Khot in isbat lands —

■Settlement Officer — Thai — Occupancy-tenants — Rents
'payable by other tenants in absence of agreement loith
the khot — Landlord and tenant. Where, in a khoti
village, the Settlement Officer has determined the
ehare of thai with regard to the occupancy-ten-
ancies, and the tenants other than the occupancy-
tenants do not appear to hold their lands on any
"terms agreed upon between the khot And themselves,
such tenants are entitled, under s. 8 of the khoti
Settlement Act (Bombay Act I of 1880), to pay rent
to the khot at the same rates as are jmid by
occupancy tenants. Krishnova Nayak v. Keshav
Balkrishna (1902) . I. L. R. 27 Bom. 71

1. s. 16 — Mortgagee of a co-sharer in

■ the khotki settlement register, preparation of —
Survey officer's authority to determine the title of
persons claiming as mortgagees only from a co-
sharer. The word " khot " as used in the Bombay
Khoti Act (Bombay Act I of 1880) does not include
a mortgagee of a co-sharer in the khotki. The Act
does not give the survey officer, when preparing the
settlement register, any authority to investigate
and determine the title of persons who claim as
Jnortgagees only of a share in the khotki, still less to

KHOTI SETTLE MENT ACT (BOM. ACT
I OF lQQO)—contd.

s. 16 — concld.

determine whether an alleged mortgage of a share
has been redeemed or is still subsisting. Datta-
traya Gopal v. Ramchandra Vishnu

I. L, R. 24 Bom. 533

2. • SS. 16 and VI —Entry in the

Survey Settlement Officer's record, finalili/ of — Land
Revenue Code {Bom. Act V of 187!>), .s. ' 108. The
Settlement Officer's record fixing the amount of rent
payable to a khot in respect of lands in the khoti
village, though prepared in the form of the state-
ment published at p. 584 of the " General Rules of
the Revenue Department," edition of 1893, and
labelled " bot-khat," cannot be treated either as a
survey register under s. 108 of the Land Revenue
Code (Bombay Act V of 1879) or a settlement re-
gister as it is called in s. 16 of Bombay Act I of 1880 ;
it is one of the " other records " prepared under
s. 17 of the latter Act. Vaidkhan Rosh\n-
khan Sarguro v. Sakhya I. L. R. 20 Bom. 729

1. s. 17 — Entry in Survey officer's

record — Land Revenue Code (Bom. Act V of
1879), s. 108— Evidence Act (7 of 1872), s. 40— Res
judicata. An entry of a record prepared under s.
108 of the Land Revenue Code (Bombay Act V of
1879), by the survev officer, describing certain lands
as khoti, is by force^of s. 17 of the Khoti Act (Bom-
bay Act I of 1880) conclusive and final endence of
the liability thereby established, and shuts out the
evidence of a prior decision otherwise relevant
under s. 40 of the Evidence Act as proof of res judi-
cata whereby a Civil Court adjudged the land to be
dhara. Gopal Krishna Parachure v. Sakhojirav,
I. L. R. 18 Bom. 133, referred to and followed.
Ramchandra Bhaskar Nanal r. Raghunath
Bachashet Sonar . I. L. R. 20 Bom. 475

2. SS. 17, 20 and 21 -Entry

in the Settlement Officer's records — Evidence as to
amount of rent due. An entry in the Settlement
Officer's record referred to in s. 17 of the Khoti Act
(Bombay Act I of 1880) is conclusive as to the
nature and amount of rent. The words •' conclu4ve
and final evidence of the liability " in s. 17 have the
effect of shutting out any other evidence on the sub-
ject which might be adduced before the Civil Court.
The words •• when not final " in s. 21 of the Act
refer to the finality ascribed in s. 17 to the entries
of the nature therein mentioned, and which follow
as contemplated in s. 20 on the survey officer
arriving at his decision. Gopal Krishna Para-
chure v. Sakhojirav . I. L. R. 18 Bom. 133

3. SS. 17, 16 and 33 — Entries

made by Settlement Officer in a form headed
as issued under Bornbay Survey and Settlement
{Khoti) Act {Bom. Act I of 186') when Bom. Act
I of 1880 Wis in force — Finality of the entry as to the
liability of the tenant — Occupancy-tenant — Juris-
diction of Civil Court. At a time when the Khoti
Act fBombay Act I of 18G5) had been repealed and
the khoti Settlement Act (Bombay Act 1 of 1880)
had come into operation, the Survey officer made,

9n2

( 6247 )

DIGEST or CASES.

( 6248 )

KHOTI SETTLEMENT ACT (BOM. ACT
I OF 1880)~contd.

ss. 17, 16 and 33 — contd.

in a form wliich was headed as being issued under
Act I of 1865, entries of rent payable by the occu-
pancy-tenant to the khot with regard to some
survej' numbers of a fixed amount of grain, and
with respect to the survey number as held rent-free,
instead of a fixed share of the gross annual ]5roduce
of the land as directed in the second paragraph of
cl. (c) of s. 33 of the Khoti Settlement Act, without
recording that the rent had been so fixed by agree-
ment : — Held, that the entries of the rent payable
by the occupancy-tenants were duly made under
s. 17 of the Khoti Settlement Act according to the
provisions of s. 33 so as to make them conclusive and
final evidence of the tenant's liability, which it was
not open to a Civil Court to question. Balaji
Raghtjnath v. Bal bin Raghoji

I. L. R. 21 Bom. 235

4. ss. 17, 20, 21, and 33—

Entry in the Settlement Officer's record, effect of.
An entry by a survey oflScer that an occupancy-
tenant holds the land rent-free is not an entry under
s. 17 of the Khoti Act (Bombay Act I of 1880), and
not being final, it can under s. 2J be reversed or
modified by a decree of a Civil Court. Balaji
Eaghunath v. Bal bin Raghoji, I. L. R. 21 Bom. 235,
distinguished. Vithal Atmaram ik Yesa

I. L. R. 22 Bom. 95

5. ss. 17, 21 and ZZ— Bombay

Land Revenue Code {Bom. Act V of 1879),
ss. 108 and 110 — Entry made by Survey officer —
Conclusive and final evidence — Entry specifying the
amount and nature of rent. Under the Khoti Act
(Bombay Act I of 1880), it is only an entry of the
survey officer specifying the nature and amount of
rent payable to the khot by a privileged occupant,
according to the provisions of s. 33, in a record
made under s. 17, that is declared to be final and
conclusive evidence. An entry of a survey
oflScer specifying that an occupant, who was found
to be not a dharikari or privileged occupant, should
pay assessment and local fund cess only for the lands
in his possession, is not conclusive and final evidence
under the Khoti Act, s. 21, declaring such decision
binding only on the parties until reversed or modi-
fied by a final decree of a competent Court. Krish-
KAJi Narasinva v. Krishnaji Narayan Joshi

I. li. E. 21 Bom. 467

6. ss. 17, 21 and Z^— Bombay

Land Revenue Code (Bom.. Act V of 1879), s.
108 — Decision of Survey officer as to tenure —
Power of Court to reverse or tnodify it. The decision
of a survey officer determining the tenure on which
a survey number is held is not final under the
Khoti Act (Bombay Act I of 1880), and it can be
reversed or modified by a competent Court. An-
TAJi Kashinath v. Aktaji Madhav Bhave

I. L. R. 21 Bom. 480

7- ss. 17, 21 and S3— Survey

register — Defendants entered by Survey authorities
as occupancy-tenants — Suit by plaintiffs, for reversal
of Survey officer's decision and for declaration that

KHOTI SETTLEMENT ACT (BOM. ACT
I OF 1880)— contd.

ss. 17, 21 and 33— concld.

defendants were ordinary tenants — Decision of
Survey officer a^ to tenure— Right of suit— Khot
holding dhara land. A survey officer under the
Khoti Settlement Act (Bombay Act I of 1880)
having determined and entered in the survey
register that the defendants held the lands in
suit as occupancy-tenants, the plaintiffs, who were
the khots of the village, objected to the decision,
and brought a suit for its reversal and to obtain a
declaration that the lands were held by them on the-
dhara tenure, and that the defendants were ordinary
tenants thereof. The Judge dismissed the suit in
appeal, holding that the survey entry was conclusive
proof of the tenant's liability, and that it gave no
cause of action to the plaintiffs. Held, reversing the
decree, that the decision of the survey officer
as to tenure was not final, and that a suit like the
present would lie. A khot of a village can hold
dhara lands. Gopax, Sadashiv Palekar v. Nag esh-

WAR SiTARAM PhANSALKAR

I. L. R. 21 Bom. 608

ss. 17, 33— Bombay Land Reve-

[Bom. Act V of 1879), s. 211-

1 nue Code

I Determination by the Settlement Officer of the liabil-
\ iiy of the defendant to khot — Ejitry in the settle-
ment register as occupancy -tenant — Revision of the
record by the Collector — Jurisdiction of Civil Court —
j Decision as to the rent payable — Appeal. In May
1885, under s. 33 of the Khoti Settlement Act
j (Bombay Act I of 1880), the survey officer de-
j termined the liabihty of the defendant to pay to-
the khot as rent for his land the survey assess-
I ment and the local fund cess, and this was en-
I tered in the record made under s. 17 of the Act,
I notwithstanding that in the settlement register
j the defendant was entered as an occupancy-tenant.
! In April 1889, the Collector, on the application of
the plaintiff, revised the former record, which as
revised showed that the defendant was liable to pay
one-third of the produce of the land as rent to the
khot. A question having arisen as to the legality of
the revised entry by the Collector : — Held, that the
revised entry in the record was duly made by the
Collector under s. 17 of the Khoti Settlement Act,
and was conclusive and final evidence of the liability
established by it. It is not open to a Civil Court to
inquire into the legality or otherwise of the reasons
which may have led to the determination of the
amount of rent payable. The Khoti Settlement Act
does not make the decision of rent final. In s. 17 it
only makes the entry, which is the result of the de-
cision, final and conclusive evidence. Under s. 33,
an appeal lies from a decision, and the decision can be
revised under s. 211 of the Land Revenue Code
(Bombay Act V of 1879) by the authorities therein
mentioned. Gopal Ramchandra Naik v. Dash-
RATHSHET . . L L. R. 21 Bom. 244

See Limitation Act, 1877, Sch. II, Art.
14 . . I. L. E. 18 Bom. 244

( 6249 )

DIGEST OF CASES.

( 6250

KHOTI SETTLEMENT ACT (BOM. ACT

I OF 1880)— concld.
s. 20— concld.

1. • ss. 20 and 21— Effect of deci-
sion of a Survey officer as to tenure — Burden of
proof. S. 20 of the Klioti Settlement Act (Bombay
Act 1 of 1880) throws upon the survey officer the
duty of investigating and determining disputes as
to any matter which he is bound to recorcl. The
tenure upon wliich any particular survey number
is held is one of such matters which he has to deter-
mine between the khot and its holder. His decision
is, under s. 21 of the Act, binding upon the parties
affected thereby until reversed or modified by a final
decree of a competent Court. The burden of proof
in such case lies upon the party seeking to vary the
decision. Madhavrao Appaji Sathe v. Deonak

I. Ii. R. 21 Bom. 695

2. . ss. 20, 21 and 22— Juris-
diction of Civil Court— Order or act of Settlement
Officer — Poiver of Collector. Under ss. 20 and
21 of the Khoti Settlement Act, it is the " decision "
on the rival claims of the parties which is open to
reversal by the Civil Court, and not the conse-
quences of that decision, which as provided by
s. 22 are left to the Collector himself to undo or
modify in accordance w-ith the decision of the Civil
•Court. S. 21 does not contemplate any "order "
being made by the survey officer between the
parties ; and even if framing the register be regarded
as an " act " of the survey officer, s. 22 provides for
its being amended by the Collector himself in ac-
cordance with the decision of the Civil Court. Faki

GULAM MOHIDIN V. SaJNAK

I. Ii. R. 18 Bom. 244
S.33-

See Res Judicata — Matters in Issue —
Suit for Rent . I L. R. 26 Bom. 25

Khot — Occupancy tenants

— Thai — Thai to he determined by Survey officer and
not by Civil Court — Rent suit. Under s. 33 of the
Bombay Khoti Act (Bombay Act I of 1880), it is the
duty of the survey officer to determine the thai or
customary rent payable to a khot by an occupancy-
tenant. Until a new determination has been made
by the survey officer under s. 33 of the rent pay-
able to the khot, a Civil Court must award rent to the
old rate legally fixed. Bapujirao v. Ganu

I. L. R. 24 Bom. 489

KHOTI TENURE.

See Co-sharers— General Rights in
Joint Property . 8 Bom. A. C. 1
See Forest Act, ss. 75 and 76.

I. L. R. 18 Bom. 670

See Khoti Settlement Act.
<See Khots.

See Landlord and Tenant— Liability
for Rent . I. L. R. 19 Bom. 528

See Right of Occupancy — Loss or For-
feiture OF Right.

I. L. R. 17 Bom. 677

KHOTI TENQRE— con^d.

1. Proprietary rights — Owner.

ship of wood on villaf/e land.s— Forest rights. The
plaintiff sought to raise the question whether in
virtue of his being izafadar and khot of three-fourths
of a village, he was or was not proprietor of three -
fourths thereof and entitled, as such proprietor, to
three-fourths of the wood, including teak as well as
izaili wood, growing on the village lands. His rights
under the izafati title depended on two documents :
one, an imperial sanad, dated in A.D. 1653 ; the
other, a Marathi document, dated in A.D. 1722.
The first was construed to confer upon the grantee,
as collector of the revenue, certain perquisites, and
to make hereditary right which before had been
only a personal right, with reversion to the sover-
eign, but not to confer any proprietary right in the
village lands. By the second, all that was granted
was a right to babatas or cesses, the grantee being
the desai, or collector of the revenue, on behalf of
the Governnient. Therefore it was held that the
izafati title did not carry with it the proprietary
right. On the question as to the khoti, it was held,
without the expression of any opinion, that no khot
is or can be the proprietor of the soil ; that such a
right is not vested in every khot. This khot of
three-fourths of a village had been authorized by
the Government to carry on the management as
khot of the remaining fourth, and had agreed, at
the time of entering into this arrangement, that he
would preserve for the Government all the trees in
reserves marked by survey numbers, and all the
teak trees in the village. He had admitted that
the Government had the power to make such re-
serves. It was not shown that the Government had
cut down any izaili wood in the village ; only that it
had recovered the value of some izaili wood cut in
the reserves without their leave. It was decided
that the khot had not made out a title to any teak
wood as against the Government,nor a claim against
it in respect of the izaili wood. Nag.vrdas v.
Conservator of Forests, Bombay*

I. L. R. 4 Bom. 284
L. R. 7 I. A. 55

Right to restoration of ten-

ure after resumption by Government —

Conditional restoration. In a suit brought by a
khot in 1862 to recover an hereditarj' share in a khoti
village, which had been mortgaged b}^ her husband
in 1845, and taken directly under Government man-
agement by the Sub-Collector of Kolaba on failure
by the mortgagee to pass the customary agreement
(kabuhat) for the security of the revenue for the
year 1851-52, the Court of finst instance decreed the
restoration of the khoti estate on payment by the
plaintiff of any loss which may have been sustained
by Government during its entire management, but
the District Judge in appeal modified that decree by
annexing a condition that the plaintiff was to ob-
serve the engagements which had been entered into
between Government and the sub-tenants of the
estate through the revenue survey which had been
introduced during the direct management of the
vUlage by Government whether as regards the rates

( 6251 )

DIGEST OF CASES.

( 6252 )

KHOTI TBNTTR'E—contd.

of assessment or the right of tenancy. Held, by
Aenoth.d and Newton, J J. (Ttjckek, J., dissen-
tiente), that plaintiff had no right to object to the
condition subject to which the District Judge had
allowed her claim to resume the khotship. Tajfbai
V. Sub-Collector of Kolaba . 3 Bom. A. C. 132

3. Liability to assessment for

lands while khoti village is under attach-
ment by Government — Bom. Act I of 1865,
s. 11, cl. 1, and s. 38. A khot is liable to be assessed
for Idioti profits in respect of land in his private occu-
pation during the time that the khoti village is under
attachment by Government. Qiicere : Whether a
khot in respect of such lands is a tenant within the
meaning of s. 11, cl. 1, of Bombay Act I of 1865,
and whether the powers in s. 38 of that Act apply
to such lands. Rajmchakdea Naesinha v. Col-
LECTOE, OF Ratnagiei . . 7 Bom. A. C. 41

4. _^ Khot's right to profits for

one year when khoti village under Govern-
ment attachment — Bombay Khoti Act 1 of 1880
— Land Revenue Code {Bom. Act V of 1879), s.
162 — Bight to levy profits from khoti co-sharer —
Limitation. The position of a khot, in the villages
to which the Bombay Khoti Act I of 1880 has been
extended, is that of a superior holder, and in the
event of attachment of his village his rights in
respect of khoti profits, oii his resuming the manage-
ment of the village, would be regulated by s. 162
of the Revenue Code (Bombay Act V of 1879).
But this rule does not hold good where the village
attached is one in the Kolaba district to which the
Khoti Settlement Act (I of 1880) has not been ex-
tended, unless the khots therein are sanadi or vat-
andar khots. Where plaintiff sued the defendant,
his khoti co-sharer, to recover from him the khoti
profits for the year during which the village was
under Government attachment, and it was found
that the Khoti Act I of 1880 was not extended to
the village and that the plaintiff was not a sanadi
or vatandar khot : — Held, that the plaintiff was not
entitled to recover the profits from the defendant,
nor could he do so from Government under the
Revenue Code, even if it had collected them for the
year of attachment. The Government could not be
said to have been trustee for the khots of the village.
Bhikaiji Ramchandra Oke v. Nijamali Khan

I. L. K. 8 Bom. 525

5. Relations of inamdars with

Khots — Status of khot in the Ratiiagiri district —
Ownership not an essential incident of kJiotship —
Onus — Thai. The plaintiffs were the inamdars of a
certain village in the Ratnagiri district, which was
granted to their ancestors by the Peshwa under a
sanad, dated 3rd September 1878. The defendants
were the vatandar (or permanent) khots of the same
village. In a previous suit between the parties
relating to the forest attached to the village, it was
held, upon the construction of the Peshwa's sanad,
that " so far as the Peshwa's Government could pass
the soil of the village and its revenues by its grant,
it did pass them to the plaintiff's ancestors," and
that therefore the plaintiffs were the owners of the

KHOTI TENURE— cowW.

forest. Narayan Dhondhhat v. Pitre Trimbak
Vithal, I. L. R. 11 Bom. 688 note. In the present
suit, which was brought to compel the defendants
to pass a fresh kabuliat every year to the plaint-
iffs and to recover the revenue from them for the
years 1869-70and 1870-71, the defendants contended
(inter alia) that they had proprietary rights, as
inherent in their Idiotship, over the cultivated land
of the village, and that the plaintiffs as inamdars
were mere alienees of the land-tax payable to Gov-
ernment. In support of tliis contention, they prin-
cipally relied upon the fact that they were entitled
to recover, and did in fact recover, thai, or rent for
lands reclaimed and brought under cultivation by
the plaintiffs. The plaintiffs claimed, on the other
hand, to be the absolute owners of the whole soil of
the village, and that the defendants were estopped
by the annual kabuliats they had passed through a
long series of years from setting up a proprietary
title. Held, that the mere fact of the defendants
being vatandar khots did not make them proprietors
of the cultivated land in the village ; that proprie-
tary rights were not essential to the conception of a»
khotship ; that in levjnng thai on the lands tilled by
the plaintiffs, the defendants did not necessarily
assert, they certainly did not establish, a proprietary
right to the soil as against the inamdars ; and that
the defendants held a position with rights and
obligations not essentially different from those of
other khots in the Ratnagiri district who were
farmers of the public revenue. MoEO Abaji v.
Narayan Dhondbhat Pitre

I. Ii. R. 11 Bom. 680

6. Proprietary right of khot to

khoti vatani land — Right of such khot to forest
land and to timber and -wood growing therein —
Government, right of, to appropriate to forest pre-
serves assessed or unassessed land — Construction of
such khoti grants. The plaintiff sued the defendant,
alleging that that village of mauze Ambedu, in the
Ratnagiri district, was his khoti vatani village in
which his proprietary right extended to raise crops
of any kind or to preserve and cut the jungle and
forest trees on the lands therein. He complained
that since 1855-56 the Collector of the district pro-
hibited him from exercising the above alleged
rights, and prayed that the obstruction might be
removed, and R600 awarded as damages. The
plaintiff based his claim mainly on the settlement of
1788, Dunlop's proclamation of 1824, and several
other khoti grants in the district. The defendant
denied that the plaintiff had any proprietary right
in the village, and contended {inter alia) that the
khot derived his rights from the yearly kabuliats
passed by him ; that his right to cultivate did not
extend to cultivating the jungle land, and that his
position was no better than that of a patel. The
Joint Judge who tried the suit held that under the
settlement of 1788 the plaintiff as khot was en-
titled to the jungle produce except timber ; that ia.
virtue of Dunlop's proclamation of 1824 the plaint-
iff acquired an unqualified right to the forest land
in the village and timber growing on it, and that
the defendant had no right to appropriate assessed.

( 6253 )

DIGEST OF CASES.

( 6254 )

KHOTI TENURE— con<«i.

or unassessed land for forest purposes, and awarded
the plaintiff the sum of RGOO as damages. On
appeal by the defendant to the High Court : —
Held, that the application of the general rules of
construction of grants to a subject by the State
requires that language of such general import as is
ordinarily to be found in the khot's sanads should be
taken most beneficially to the State. Held, accord-
ingly, that, in the absence of a sanad expressly
granting it, the ownership neither of the soil nor of
cultivated or uncultivated lands passes by the grant
of the vatandari khotship. Held, also, that the
grant of the vatani khoti did no make the
khot a perpetual tenant of Government in
respect of all lands in the village, except dhara
lands. Held, on the authority of Tujuhai v. Suh-
Collector of Kolahn, 3 Bom. A. C. 132, and Bam-
chandra Narsinha v. Collector of Ratnagiri, 7
Bom. A. C. 41, that a permanent relationship was
created between the Government and the khot
which could not be interfered \<,\tli as long as the
settlement of 1788 was in force, except with the
khot's consent, and therefore that in 1855, when the
pahani of 1788 was in force, the Government could
not withdraw the thikan in question from the
plaintiff's cultivation. Held, also, that, in the
absence of evidence to show that the right to the
jungle produce was intended to be reserved to
Government, the plaintiff was entitled to cut down
brushwood, whether as a source of revenue or for the
purpose of bringing the land into cultivation.
Held, that the respondent was entitled to damages
for the years during which he had been excluded
, and to an injunction restraining the defendant from
excluding him in the future. Held, also, that as khot
the respondent had no right to cut timber in forest
and uncultivated lands, whether by virtue of his
khotship or Dunlop's proclamation. Collector
OF Ratnagiri v. Antaji Lakshman

I. L. R, 12 Bom. 534
See Secretary op Si ate for India v. Sitaram
Shivram . . . I. L. R. 23 Bom. 518

7. - Managing khot's right to

create tensnaeies—Muplii i^tavn lavd.s~Siiti
lands — Sanad — Construction — Fraud. A managing
khot is entitled, without any express authorization,
to create tenancies inland, even though the rever-
sionary interest in it is vested in the person whose
lessee he is. If such a khot himself takes up land,
he can do so consistently with the conditions of the
khoti tenure ; for a khot, as regards lands in his
private occupation, may be a tenant to him himself
qvd khot. In 1832 theBritish Government granted
to the plaintiff's father, M I M, the village of Ran-
sai on khoti tenure by a sanad which provided {intc.-
alia) as follows :— (i) That the whole of the land
lying waste in the village in the year 1830-31 was
granted as inam. (ii) That exclusive of this inam
land, all the rest of the village was granted on khoti
tenure on certain conditions and stipulations set
forth in twelve clauses, the chief of which were the
following : Clause 1st provided that the khot
should annually pay to Government a fixed sum of
R249 2 as. 35i-s. Clause 7th provided that the khot

KHOTI TENURE— con?d.

should allow the lands, which had been granted on
niaphi istava tenure to certain hawaldars before the
date of the sanad, to continue in their possession ;
that he should every year recover from them the
Government dues and pay the same over to (Govern-
ment in addition to the amount stipulated with him
on account of the khotship. Clause 9th provided
that the holders of the suti lands in the village were
the owners of those lands. Should a new survey be
made and a new assessment settled, the same should
be settled by Government for the holders of the suti
lands agreeably thereto. From 1845 to 1871 the
management of the khoti village was entrusted to
the defendant as a maktadar, or lessee, under two
kabuhats passed by him— one in 1845 to MI M,
the grantee of the khoti village, and the other in
1858 to the grantee's heirs and legal representatives.
By clause 5th of the kabuliat of 1858 the defend-
ant agreed to carry on the management of the vil-
lage and render a detailed account of the balance of
the village revenue every year. Clause 7th of the
same kabuliat was in the following terms : ''I (the
lessee) will bring under cultivation and into pros-
perous state the waste, culturable, and unculturable
land of the aforesaid village. I will take the pro-
ceeds of the same during the years of my contract.
After the expiry of the years of the contract, you are
to take the assessment of the fields according to the
practice of the village. I have nothing to do with
the same. I will not let (the village) nor lease to
anybody for a longer period than for the period of
the contract. If I let it, 1 will make good the dam-
age j-ou may suffer." In 1859 some of the ma^ihi
istava" lands were sold by the Collector for arrears
of assessment and bought in by Government. The
defendant applied to the Collector to have the lands
transferred to him, and the Collector transferred
them to his name. Shortly afterwards the defend-
ant acquired some more lands which were held on
suti tenure in the village. He either purchased
them or took them up on the tenants abandoning
them. In 1861 when the survey was introduced
into the village, he got his title to these lands recog-
nized by the Superintendent of Survey. In 1871
the defendant's management of the village ceased.
But he refused to deliver up to the plaintiff either
the maphi istava or the suti lands which he had
acquired during his management. The plaintiff
therefore sued as khot of the ^^llage to recover the
said lands with mesne profits, alleging that the
defendant had illegally and fraudulently acquired
those, lands on his own account while acting as
plaintiff's agent and praying that he should be
declared to have acquired and held them in trust for
the plaintiff". The defendant contended {inter alia)
that the lands in suit were not included in the khoti
grant ; that thej- belonged to Government ; that he
had acquired some from the Collector and the rest
from the Superintendent of Survey ; that under his
kabuhats he was entitled to take up the lands
direct from Government, and that the plaintiff
was onl^- entitled to the assessment due on the lands
which he had refused to accept. Lastly, the defend-
ant denied that he had acted in fraud of the plaint-
iff's right in acquiring the lands in dispute on his

( 6255 )

DIGEST OF CASES.

( 6256 )

KHOTI TENURE— con<(Z.

own account. Held, on the construction of the
sanad, that the plaintiff being the khot of the whole
of the village exclusive of the land granted in inam,
the maphi istava lands were included in the khoti
grant ; that the khot's interest in them, whatever
might be the extent of it, was not separable from the
klioti estate ; and that the khot had a reversionary
interest in the maplii istava lands as well as in the
suti lands, which had been abandoned by their form-
er occupants. Held, also, that the defendant was not
precluded by the terms of his lease from acquiring
the lands in dispute on his own account. The
engagement to furnish accounts of the balance of the
village revenue at the end of each year was simply
an engagement to furnish the plaintiff with inform-
ation which would be of use to him, and which
indeed it would be necessary for him to possess when
he resumed the management of the village on the
determination of the lease. It imported nothing
more than that ; and the whole transaction eviden-
ced by the kabuhats was merely an assignment, in
consideration of a fixed annual payment to be made
by defendant to plaintiff, of the rights and liabiUties
of the latter to be exercised and discharged for a cer-
tain period by the former. For that period the de-
fendant was the makhtadar, or tenant of the plaint-
iff's khotship ; and though a certain confidence was
necessarily reposed in lum in connection with a
tenancy of this nature, and though he was bound
jealously and scrupulously to protect the plaintiff's
interests, so far as they were in his keeping, yet he
was not bound by the strict rule wliich proliibits a
trustee from acquiring for himself an estate of his
ceshd que trust. Under cl. 7 of the kabuliat of 1858,
the defendant was at hberty either to take up waste
lands himself or put in tenants ; if he put in tenants
on leases, the special advantages of anj' leases were
to expire with his own lease. But the actual occu-
pation of land either by himself or by his tenants was
not to be interfered with at the determination of his
lease, so long as he or they continued to pay the
assessment according to the practice of the village.
The defendant could therefore, without the inter-
vention of the Collector, have taken up the maphi
istava lands in suit and become himself the tenant ;
and he could have also acquired the suti lands from
former sutidars, or taken them up if waste, without
the intervention of the Survey Superintendent.
The circumstance that, when acquiring the lands, he
needlessly invoked the assistance of the Revenue
authorities, would not invalidate his title if it could
not be impugned on other grounds. Held, further,
that the defendant was not guilty of fraud, as there
was no e\^dence to show that he had acted in a sur-
reptitious or secret manner in acquiring the lands
in suit. On the contrary, his action in appljnng to
the revenue authorities was a sign of his good faith
rather than of any fraudulent intent. The plaintiff
was therefore not entitled to oust the defendant from
the lands in .suit. Faki Ismail v. Mahomed Ismail
I. 3j. R. 12 Bom. 595

Lease containing words of

inheritance not inalienable — Conbtruction —
Khoti Act (Bom. Act I of 1S80), s. 9. The khots
of the village of A in 1854 leased certain land to

KHOTI TENURE— co«cZd.
B by a lease which declared that " you (B) are to
enjoy, you and \'our sons, grandsons, from genera-
tion to generation." The rent fixed by the lease was
eleven maunds and six and a half pailis of bhat
per year. B having died, his widow in 1878 trans-
ferred the lease to the plaintiff, who entered into
possession and offered to pay to the defendants, who
were khots of the village and the successors of the
grantors of the lease in 1854, the annual rent fixed
by the lease. The defendant refused to accept it,
and contended that the plaintiff was liable to pay
the rent jjaid by other occupying tenants in the
village. The plaintiff thereupon sued to have it
declared that he was entitled under the lease to
hold the lands permanently at the rent thereby
fixed. Held, by the High Court, that he was entitled
to the declaration. The lease was one to hold in
perpetuity at the fixed rent, but there were no words
making the lease inalienable. There was no evi-
dence of any custom of the village, nor anything in
the Khoti Act 1 (Bombay ) of 1880, which could be
construed as a declaration of the existing custom of
khoti villages when the Act was passed. Vinayak
Mokeshvar v. Baba Shabudin

I. L. R. 13 Bom. 373

8. Khoti khasgi la.nds—Khas'ji'

lands allotted to a khoti sharer — Sale of khoti— Occu-
pancy rights in khoti khasgi lands. One N was
the owner of a 14 pies takshim (share) in a khoti
village. To this takshim were allotted twenty
khasgi thikans. In 1876 N mortgaged his khoti
takshim to the plaintiff. In 1880 the takshim was
sold in execution of a decree against N and pur-
chased by A. A sold the takshim to plaintiff in
1881. In 1893 plaintiff obtained a decree against iV
establishing liis right to recover thai (or customary
rent) in respect of the twenty khasgi thikans. N
having died, plaintiff brought this suit against N's
son in 1895 to eject them from the khasgi thikans.
Held, that the plaintiff was entitled to recover. The
sale of the khoti takshim passed with it the khasgi
lands allotted to the takshim. Both as mortgagee
and purchaser of the takhsim, plaintiff acquired a
title to the khasgi tliikans in dispute. Held, also,
that the effect of the decree which plaintiff had
obtained against N in 1893 in the rent suit was that
in the absence of any agreement, N was a mere
tenant-at-will of the khasgi thikans, liable to be
evicted after due notice. Held, also, that a khoti
sharer has not, with reference to a khoti khasgi
thikan allotted to his share, an " occupancy right"
against the body of khoti sharers, so that, when he
parts with his .share in the khoti, his khoti khasgi
lands are changed into khoti nisbat lands. Raghtt-
nathkao v. Vasudev . I. Ij. R. 23 Bom. 769
KHOTS.

See Khoti Act . I. L. R. 30 Bom. 290

See Khoti Settlement Act.

See Khoti Tenure.

1. Alluvions— Khots of the whole

village — Right of the Khot to the alluvion — Land

Revenue Code '{Bombay Act V of 1S79), s. 37.

The KJiota of the village of Bele Budruk in the

( 6257 )

DIGEST OF CASES.

{ 6258 )

XHOTS— coMcW.

Ratnagiri District asserted a claim to occupy and
cultivate lands left dry in the river bed a-i far as the
middle of the bed opposite their Khoti village. The
lands in question were treated for nearly a hundred
years as part of the village. Hdd, that plaintiffs
were entitled to the right claimed and that s. 37 of
the Land Revenue Code (Bombay Act V of 1879)
presented no bar to the same. The construction to
be placed on the words '" arc hereby declared " in a
statute di-scussed. Secretary of State v.
"Wasudeo (1907) . . I. L. E,. 31 Bom. 456

2. Landlord and tenant — Pre-

sumptioyi as to nature of tenancy in absence of evidence
— Payment of rent— Mortgage by tenant — Sale of
tenant's interest — Bights of purchaser — Suit for
•possession — Transfer of tenancy in khoti village —
Occupancy tenancy. One A, who held certain land
as tenant, mortgaged it to H and shortly afterwards
died. There was no evidence to show the term of
A''s tenancy. After his death the plaintiff V, who
was his brother, became tenant of the land and jiaid
rent to the khots. Some years subsequently H (the
mortgagee) sued to enforce his mortgage, and made
the plaintiff V and his two sisters parties. He
obtained a decree and sold the mortgaged land in
•execution. S bought itand now claimed possession.
V contended that A' f interest terminated at his
death, and that S was therefore not entitled to
possession. Held, that S was entitled to possession.
The fact that A had paid rent to the khots showed
that he was their tenant. In the absence of all
evidence on the subject, the presumption was that
tenancy was an ordinary tenancy from year to 3'ear
continuable until legally terminated. There was
nothing to show that the khots had ever terminated
it. ^'5 heir could not surrender it to the prejudice
•of the mortgagee. S therefore had purchased a
tenancy which had never been legally put an end
to, and was entitled to possession. Under the
Khoti Settlement Act (Bombay Act I of 1 880), occu-
pancy-tenancies are not transferable except under
■certain circumstances, but there is no prohibition
to the transfer of an ordinary tenanc}'. Sonshet
Antushet Teli v. Vishnu Babaji Joiiari

I. L. R. 20 Bom. 78
^KIDNAPPING.

See Charge to Jury— Special Cases

—Kidnapping . 7 W. R. Cr. 22

I. Ii. R. 14 All. 25

See Criminal Procedure Code, ss. 199,
227, 228, 238, 537.

I. L. R. 31 Bom. 218

See Criminal Procedure Code, ss. 199,

238 . . I. L. R. 27 Mad. 61

See Jurisdiction of Criminal Court- —

Offences committed only partly

IN ONE District — Kidnapping.

I. L. R. 18 All. 350
I. Ii. R. 19 A11.109

See Penal Code, ss. 359 to 3G9.
iSee'PENAL Code, ss. 109, 366.

I. L. R. 26 All. 197

KIDNAPPING— confd.

-See Penal Code, ss. 361, 363.

I. L. R. 31 All. 448

from lawful guardianship —

See Penal Code, s. 361.
See Penal Code, s. 363.

I. L. R. 31 Bom. 218

1. Requisites of offence— Pe«aZ

Code, s. 3^3 — Abduction from laicful guardianship.
To constitute the offence of kidnapping under
s. 363 of the Penal Code, it must be shown that
the person was abducted from lawful guardianship,
and lawful guardianship is a guardianship by a per-
son who is lawfiUly entrusted with the care or
custody of a minor. Queen?'. Buldkm

2 N. W. 286

2. Continuing offence — Penal

Code (Act XLVof IS'W), s. 363. Semble : Tha
the offence of kidnapping from lawful guardianship
punishable under s. 363 of the Penal Code is not a
continuing offence. Queen-Empress r .Ram Sun-
DAR . . . . I. L. R. 19 All. 109

3. — Penal Code, ss.

361, 363 — Enticing from lawful guardianship. To
support a conviction for kidnapping under ss. 361
and 363 of the Penal Code, it must be'shown that the
accused took or enticed away from lawful guardian-
ship the person kidnapped. Queen v. Neela Bibee
10 W. R. Cr. 33
Queen v. Mohim Chunder Sil ,

16 W. R. Cr. 42

4. The offence of

kidnapping is complete when the person is actually
taken out of the custody of his lawful guardian.
RAKH.4L NiKARi V. Queen-Empress 2 C.W. N. 81

5. Omission to enquire as to

guardian — Child under ten years of agr — Penal
Code, s. 3I>1 — Guardianship — Minor. A child
under ten years of age is, prima facie, subject to
guardianship, and anyone remo\nng such child with-
out permission properly obtained take; the risk of
such act upon himself ; the fact of having omitted to
enquire whether the child had a guardian or not ie
no defence to a charge of kidnajiping a minor from
lawful guardianship under s. 361 of the Penal
Code. Empress v. Umsadbaksh

I. L. R. 3 Bom. 178

6. Lawful guardianship —Guar-

dian.fhip of illegitimate child — Pinal Code (Act
XLV of ISnO), ss. 361, 3' 6. The mothei of an
illegitimate child is its profier and natural guardian
during the period of nurture. And where the
mother, on her death-bed, entrusts the care of such
child to a jierson who accepts the trust and main-
tains the child, such a person is *' lawfully en-
trusted " with the care and custody of the minor
within the meaning of s. 361 of the Penal Code.
The explanation of the words '• lawful guardian "
in s. 361 is intended to obviate the difficulty the
prosecution'might be put to in being bound to prove
strictly, in cases of abduction, that the person from
whose care the minor has been abducted was the

( 6259 )

DIGEST OF CASES.

( 6260 )

KIDNAPPING— conid.

guardian of such minor within the meaning of the
letral acceptation of the word. Empress v. Pe-
mIntle .... I. L. E. 8 Calc. 971

7. Penal Code, s. 361

— Taking by father of minor wife from her hus-
band— Guaidianfihip of wife. The husband of a
Hindu girl of fifteen is her lawful guardian ; and
if the father of the minor takes away the girl from
her husband without the lattei 's consent, such tak-
ing away amounts to kidnapping from lawful
guardianship, even though the father may have had
no crinjinal intention in so doing. In ihe matter cf
the petition of Dhuecnidhtjk Ghcse

I. li. E. 17 Calc. 298

Enticing away

child playing on public road — Taking from lawful
guardianship. An enticing away of a child playing
on a public road is kidnapping from lawful guardian-
ship. QlTEEN V. OnZEERTTN . 7 W. E. Cr, 98

9. • Penal Code, s.

363 — Betrothed girl after marriage is broken off.
A person who cames ofY, without the consent of
her guardian, a girl to whom he had been betro-
thed by her father after the father had changed his
mind and broken off the marriage, is guilty of kid-
napping, punishable under s. 363 of the Penal Code.
Queen v. Gooeoodass Rajbxjnsee 4 W. E. Cr. 7

10. Kidnapping from

lawful guardianship- — Completion of such offence —
Whether a continuous offence — Constr7ictii)e posses-
sion—Penal Code (Act XLV of 1860), ss. 360,
361, and 363. J, a minor girl, was taken away
from her husband's house to the house of B, and
there kept for two days. Then one 31 came and
took her away to his own house and kept her tliere
for twenty days, and subsequently clandestinely
removed her to the house of the petitioner, and from
that house the petitioner and M took her through
different places to Calcutta. The petitioner was
convicted under s. 363 of the Penal Code for Idd-
napping a girl under 16 years of age from the lawful
guardianship of her husband. Held (by the major-
ity of the Full Bench), that the taking away out of
the guardianship of the husband was complete be-
fore the petitioner joined the principal offenders in
taking the girl to Calcutta, and that the petitioner
therefore could not be convicted under s. 363 of the
Penal Code. Held, further, that the offence of kid-
napping from lawful guardianship is complete when
the minor is actually taken from lawful guardian-
ship ; it is not an offence continuing so long as she
is kept out of such guardianship. Per Rampini, J. —
The offence of kidnapping under s. 363 is not ne-
cessarily or in all cases complete as soon as the
minor is removed from the house of the guardian ;
when the act of kidnapping is complete is a question
of fact to be determined according to the circum-
stances of each case. Neimai Chattoraj v.
Queen- Empress . . I, L. E. 27 Calc. 1041
4 C. W. N. 645

11.

Kidnapping of

married minor girl from fathers house- — ''''Lawful
guardianship " — Penal Code, s. 161, Expl. 163 — Mis-

KlTtNAFFING—contd.

direction to jury — Failure to place evidence fairly
before jury. Where an accused was charged with
having kidnapped a married Hindu girl under 16'
years of age by taking her out of the keeping of her
father, the father being alleged in the circum-
stances of the case to be the lawful guardian,
what the Judge should have left to the jury-
was whether or not the father had been lawfully
entrusted with the care or custody of the girl.
The Judge had charged the jury as follows : —
" Now the lawful guardian of a married woman is
no doubt her husband. But there is the evidence
before you that she came with the consent of the
husband into the house of her father, if you believe
such evidence. Therefore, the father of the girl
was her de facto lawful guardian for the time, the
girl was residing in her father's house." Heldr
that in matters of this kind a Judge should adhere
to the words of the particular section of the Penal
Code with which he has to deal and not substitute
phraseology of his own. As it further appearedi
that upon the point of the husband's consent the
Judge had failed to place before the jury a fair and
proper statement of the evidence on the record, the
conviction was set aside and a further trial ordered..
The Emperor v. Nakul Kabiraj (1909)

13 C. W. N. 754

12. Lawful guardian-

g-hip— Penal Code (Act XLV of 1860), ss. 361, 363,
366 — Kidnappin^g from lawful guardianship —
" Lawful guardian " — Continuance of parent's
possession though physical possession temporarily
with another. S, a girl of the age of eight
years, lived ordinarily under the guardianship
of her father. A sister of S was married to a
nephew of one K, and, with her husband, lived ior
the house of K. S, with her father's knowledge and
consent, visited her sister in X'« house, and had re-
mained there for about a month when four brothers
(being cousins of S) came to K's house one night
and took S to their own house, which was close by,,
and *S' was at once married to one of them. The
father of S was not asked for his consent, and it was
known by the nephews and by K that the father
objected to such a marriage. A' was present at the
marriage and consented to it, hoping to reconcile the-
girl's father to it subsequently. The father, how-
ever, sought the aid of the police, to whom .S was
given up by her cousins after having been detained
by them in their house for thirty-six hours. The-
four cousins were then charged, under s. 366 of the
Indian Penal Code, with kidnapping S from lawful
guardianship with intent that she might be compel-
led to marry one of them. The charge was framed
in general terms, and did not state from whose
guardianship the kidnapping was alleged to have
taken place. The trial was, however, conducted on
the footing that the kidnapping was from the
guardianship of K. The accused were acquitted, on
the ground that K was at the time the lawful guard-
ian of the girl and it had not been shown that she
had been taken without K's consent. Upon an
appeal being preferred by Government against that
acquittal : — Held, that the accused had been rightly

( 6261 )

DIGEST OF CASES.

( 6262 )

KIDNAPPING— confd.

acquitted of the charge of kidnapping S from the
guardianship of K ; but that the question whether
they were guilty of kidnapping *S' from the guard-
ianship of her father had not been and ought to be
tried. The word " include," in the Explanation to
s. 361 of the Indian Penal Code, is not intended to
limit the protection which the section gives to parents
and minors, but rather to extend that protection
by including in the term " lawful guardian " any
person lawfully entrusted with the care or custody
of the minor. The fact that a father allows his
child to be in the custody of a servant or friend for a
limited purpose and for a limited time does not de-
termine the father's rights as guardian or his legal
possession for the purposes of the criminal law. If
the facts are not inconsistent with a continuance of
the father's legal possession of the minor, the latter
must be litld to be in the father's possession or keep-
ing, even though the actual possession should be
temporarily with a friend or other person. Jagan-
NADHA Rao v. Kamaraju (1900)

I. L. R. 24 Mad. 284

13. Husband taking away wife

— Abettors in talcing aicay wife. A husband cannot
be convicted of kidnapping for taking away his own
wife, nor can those who aid liim in doing so. Queen
v.AsKUR .jJl- • W. B. 1864 Cr. 12

14.- Consent — Taking by force or

fraud — Pejial Code, s. Stil. The consent of a kid-
napped person is immaterial, and it is not necessary
for a conviction, under s. 361, Penal Code, that
the taking or enticing should be shown to have been
by means of force or fraud. Queen v. Bhunoee
Aheeu . . . . 2 "W. R. Cr. 5

Queen v. Amgad Bugeah . 2 W. R. Cr. 61
Queen v. Modhoo Paul . . 3 W. R. Cr. 9
Queen v. Koordan Singh . 3 "W. R. Cr. 15
Queen v. Sookee . . . 7 W. R. Cr. 36

15. Abetment of kidnapping—

Penal Code, ss. 116 and 363. Accused was convicted
by the Magistrate of abetting the kidnapping of a
minor. Accused, knowing that the minor had left
home without the consent of his parents, and at the
instigation of one Komaren, the actual kidnapper,
undertook to convey the minor to Kandy in Ceylon
and was arrested on the way thither. The Sessions
Judge reversed the conviction on the ground that
there was no concert between the accused and Kom-
aren previous to the completion of the kidnapping
by the latter. Held, by the High Court, that, so long
as the process of taking the minor out of the keep-
ing of his lawful guardian continued, the offence of
kidnapping might be abetted, and that in the pre-
sent case the conviction should be of an offence
pimishable under ss. 363 and 116 of the Penal Code.
Reg. v. Sajiia Kaundan . I. L. R. 1 Mad. 173

16. P€7ial Code (Act

XLV of 1860), ss. 109, 363— Right to custody of
children. A mother cannot have a right to the
custody of her legitimate children adversely to the
father. Ordinarily the custody of the mother is the
custody of the father, and any removal of the child-

KIDNAPPING-iJonid.

ren from place to place by the mother ought to bo
taken to be consistent with the right of the father as
guardian, and not as a taking out of his keeping
But where a Hindu woman left her husband's 1

taking with her her infant daughter, and went to the
house of A, and on the same day the daughter was
married to B, the brother of A, without the father's
consent, it was held that A was rightly convicted
under ss. 109 and 363 of the Penal Code of abetting
the offence of kidnapping. In the matter cf the
petition cf Pran Krishna Surjia. Empress v.
Prankrishna Surma

I. li. R. 8 Calc. 969 : 11 C. L. R. 6

17. Concealment of kidnapped

person — Peiial Code, s. 36S — Concealment of kid-
napper. S. 368 of the Penal Code refers to some
other party who assists in concealing any person
who has been kidnapped, and not to the kidnappers.
Queen v. Oojeer . . . 6 W. R. Cr. 17

18. Penal Code,

s. 368. The mere fact of a girl being received into a
house and retained there by the owner, even after he
may have become aware or found reason to believe
that she had been kidnai)ped, does not amount to
concealment of her, unless an intention of keeping
her out of view be apparent. Queen v. Jhurrup
5 N. W. 133

19, Girl merely stay-
ing temporarily in another honse. The mere cir-
cumstance of a girl, who had been kidnapped, stay-
ing in the house of a person for a day or two, does not
warrant the conclusion that she was wrongfully con-
cealed by that person, with the object of baffling any
search that might be made for her. Queen v.
CnuBBOA 5N". W. 189

20. Penal Code,

ss. 363, 866, 368 — Illegal concealment. When a
girl of 11 years of age wa.s taken out of the custody
of her lawful guardian by the first prisoner, and
offered for sale in marriage to another, and the se-
cond prisoner illegally concealed her, the convic-
tion of the former was upheld under s. 363 of the Pe-
nal Code only, and of the latt<-r under s. 368 only,
while the separate conviction of both under s. 366
was quashed. Queen r. Isree Pandey

7 W. R. Cr. 56

21. — — Restraint or con-

ftncment in attempt to kidnap. Where an act of
restraint or confinement in an attempt to kidnap has
been exercised in furtherance of the attempt, and
goes to form part of that ofl'ence, and is not done
with an intention or object which can be .<jeparated
from the general intention to kidnap, it will consti-
tute an integral part of that offence, and should not
form the subject of a separate conviction and sen-
tence. Queen v. Mun(jroo . . 6 N. W. 293

22. Penal Code, s.

3^S — Confinement of kidnapped girl. If, knowing a
girl has been kidnapped, a person wrongfully con-
fines her and subsequently detains her as a slave, he
is guilty of two separate offences punishable under

the Penal Code.

Queen v. Sikunder Bhukut? ■
3 N. W. 146

( 6263 )

DIGEST OF CASES.

( 6264

KIDNAPPING— concZrf.

23. Proof of ofTence — Evidence of

kidnapped girl. The evidence of a kidnapped girl,
if thoroughly credible, is legally sufficient for a con-
viction for kidnapping. Queex v. Doorga Dass

7 W. R. Cr. 104

24.

Offence when complete.

The offence of kidnapping is complete when the
minor is actually taken from lawful guardianship,
and it is not an offence continuing as long as the
minor is kept out of such guardianship. Chertttty
V. Emperor (1902) . I. L. E. 26 Mad. 454

25. Rioting with intent to

:abduet— /w7/r/w Penal Code (Act XLV of WiO), ss.
M!, 366 — Abduction — Rioting, charge of, trhether it
would necessarily fail if intention of abduction is not
proved. Where a person was charged for abduction,
under s. 366, Indian Penal Code, and also for rioting,
under s. 147, with the common object of abducting a
certain woman, and the Court below convicted
the aocu.sed under s. 147, but acquitted him of the
offence under s. 366 on the ground that the in-
tention of the abduction as mentioned in the charge
was not proved : — Held, that, the intention of the
abduction not being proved, and a charge of bare
abduction per se (without the intention pointed out
in the different sections dealing with the subject)
not being an offence under the law, the conviction
under s. 147 was bad. Khalil Nasya v. Emperor
(1901) 6 C. W. N. 208

26. Mahomedan Law— J/wAo-

medan minor, gtuirdianship of — Preferential right
of Mahomedan mother — Penal Code {Act XLV
of 1S60), ss. 361, 363. Under the Mahomedan
law the mother is entitled to the custody of her
daughter, in preference to the husband, until
the girl attains the age of puberty. The removal
of an immature Mahomedan girl of eleven or
twelve from the house of her mother-in-law,
in whose charge the husband had left her, by
a third person acting at the instance, and under
the instigation of her mother, is not a taking
from " lawful guardianship," and does not amount
to " kidnapping." Nur Kadir v. Zuleikha Bibi,
I. L. R. 11 Cede. 649, referred to. Korean v.
Emperor (1905) . . I. L. R. 32 Gale. 444

KIRTAN.

See Easement . I. L. R. 36 Calc. 615
KIST.

See Sale fob Arrears of Revenue.

I. L. R. 35 Calc. 636
KISTBANDI.

See Civu. Procedure Code, 1882, ss.
257, 258 (1859, s. 206).
suit on —

See Contract Act, s. 25.

I. L. R. 4 Calc. 500
KNOWLEDGE.

See Acquiescence.

See Prescription^— Easements — Light

AND Air . . . 6 B. L. R. 85

12 B. L. R. 406

KNOWLEDGE— conc7d

of commission of oflFence —

See Complaint — Institution op Com.

PLAINT AND NECESSARY PRELIMINARIES.

5 B. L. R. 274

See Rioting . I. L. R. 28 Calc. 504

KONDH, COURT OF NATIVE COMMIS-
SIONER OF.

See Execution of Decree.

1. L. R. 34 Calc. 576

KULACHAR.

See Babuana Grant . 12 C W. N. 958
of Darbhanga Raj —

See Grant for Maintenance.

L L. R. 32 Calc. 633
9 C. W. N. 567

KUMAON AND GARHWAL.

High Court for. For the purposes

of the Legal Practitioners' Act, 1879, ths Com-
missioner of Kumaun is the High Court for the
Province of Kumaun and Garhwal. In the
matter of the petition of Padma Dat Joshi
(F.B., 1902) . . . I. L. R. 24 All. 348

KURBARS.

See Hindu Law — Marriage.

L L. R. 33 Bom. 693
KURSINAMA.

See Evidence, admissibility of.

1. L. R. 34 Calc. 1059

KUTCHI MEMONS.

See Cutchi Memons.

LABOURERS.

See Act XIU of 1859 8 W. R. Cr. 69

14 W. R. Cr. 29

18 W. R. Cr. 53

2 B. L. R. A. Cr. 32

I. L. R. 1 Mad. 280

I. L. R. 7 Bom. 379

9 Bom. 171

I. L. R. 8 Mad. 379

I. L. R. 13 Mad. 351

See Breaches of Contract Act.

— protector of^

See Bengal Act VI op 1865.

3 B. L. R. A. Cr. 39

wages of —

See Bengal Act VI of 1865.

3 B. L. R. A. Cr. 39

LACCADIVE ISLANDS.

See Criminal Proceedings.

I. L. R. 13 Mad. 353

( 6265 )

DIGEST OF CASES.

LACHES.

iS'ee Acquiescence . I. L. R- 1 All. 82

2 Mad. 114 ; 270

22 W. R. 267

See Costs — Special Cases — Delay.

I. li. R. 11 All. 372

See Court Sale .

I. li. R. 29 Bom. 234

See Execution of Decree — ArPLicA-
TiON FOR Execution and Power of
Court . . I. L. R. 15 AIL 84

See Limitation Act, s. 10.

I. L. R. 18 Bom. 119

See Limitation Act, 1877, Sch. IT. Art.
113 . . I. L. R. 2 Calc. 323
See Privy CouNcn., Practice of — Re-
hearing . . 2 B. li. R. P. C. 10
12 Moo. I. A. 244
See Revision — Criminal Cases — Delay'.
See Sale in Execution of Decree —
Purchasers, Rights of — Generally'.
11 Bom. 193

See Specific Performance — Generally.
I. li. R. 30 Calc. 265
I. li. R. 33 Calc. 633

See Summons . 15 B. L. R. Ap. 12
See Superintendence or High Court — -
Charter Act, s. 15 — Civil Cases.

22 W. R. 522

5 Bom. A. C. 63

17 W. R. 477

18 W. R. 87

2 C. L. R. 545

See Superintendence of High Court —

Civil Procedure Code, 1882. s. 622.

I. L. R. 4 All. 154

I. li. R. 6 All. 125

See Transfer of Property Act, s. 41.

I. li. R. 17 All. 280

Doctrine of laches, appli-

cation of — Suits for which 'period of limitation is
provided. The equitable doctrine of laches and
acquiescence does not apply to suits for which a
period of limitation is provided by the Limitation
Act. Ram Rau v. Raja Rau . 2 Mad. 114

TaRUCK CHANDER BhUTTACHARJEE IK HUKO

SuNKUE Sandyal . . . 22 W. R. 267

2. Suits for which

period of limitation is provided. Mere laches, or

indirect acquiescence short of the period prescribed

j by the statute of limitations, is no bar to the en-

I forcement of a right absolute vested in the plaint-

' iff at the time of suit. Semble : The doctrine of

I acquiescence or laches will apply only to cases, if

I such there are, in which they can be regarded as a

positive extinguishment of right. When they go

merely to the remedy, the Courts have no power

arbitrarily to substitute an extinguishing prescrip-

[ tion different to that determined by the Legislature.

; Peddamuthulaty v. Timma Peddy 2 Mad. 270

liACHES— confrf.

3. __ — Mortgagor — Limi-
tation Act, 18'>9, s. 1, cl. 16— Estoppel. The laches
of a mortgagor in taking no steps for many years to
enforce his alleged rights may afford evidence
against the existence of those rights, but cannot
estop him from asserting them, if they do exist, at
any time within the period of sixty years allowed
by"s. 1, cl. 15, Act XIV of 1859. On account of the
plaintiff's laches, the Judicial Committee disal-
lowed mesne profits prior to the date of the insti-
tution of the suit, which had been allowed by the
High Court. Juggurnath S.uioo v. Shah Maho-
med Hossein

14 B. li. R. 386 : L. R. 2 I. A. 49
23 W. B. 99

Suit for declara-

tor)) decree — Specific Relief Act, s. 42 — Laches and
delay on plaintiffs' part. Inasmuch as in this
country a period of limitation is prescribed even for
suits where the grant of relief sought is within the
discretion of the Court, mere lapse of time short of
the period of limitation should not ordinarily be
held a good ground for refusing relief to a j)!aintiff.
AthikaeathNanuMenon v. Eratiiaxikat Komu
Nay.ab .... I. L. R. 21 Mad. 42

5.— Reversioners suing

within period of limitation but after delay in knowing
their rights. AA'hen reversioners bring their suit
within the period of limitation allowed by law,
delay in asserting their rights is not by itself suffi-
cient to justify a finding that they have assented
to the invasion of the right which necessitates their
applying for relief. Dulleep Singh v. Sreekit
SHOON Panday . . . 4 N". W. 83

6. Delay in .^uiinj —

Suit not barred by limitation. A suit in which plaint
iff claimed to have a drain closed on the ground
that it passed through his land, having been dismiss-
ed because the delay in bringing it amounted to
consent : — Held, that the Courts of this country have
no power to refuse relief on the ground of mere delay
where the plaintiff estabhshes a right not affected
by Hmitation. Ramphul Sahoo v. :Misree Lall
24 W. R. 97

7. — — - Delay in execution

of decree — Interest, right to. As long as a decree -
holder does not incur the loss of right by limitation,
he cannot be deprived of the interest which his
decree gave him, on the ground of his dilatoriness in
taking out execution. Modhoo Soodun Roy
Chowdhry v. Bhikaree Rev Chowohry

5 W. R. Mis. 11

Delay in execution

of decree — Debt barred by limitation — Adinission of
debtor. This decision of the Full Bench, Bissessur
Mullick V. Dhiraj Mahtab Chand Bahadoor, B. L.
R. Sup. Vol. 967 : 10 W. R. F. B. 8, that a decree
once barred is always barred, for the reason that no
proceedings in execution can be valid if instituted
after three years from the date of the last proceed-
in2, was held to apply in a case where the admissions
of a judgment-debtor were pleaded in condonation

( 6267 )

DIGEST OF CASES.

liACHES — contd.

of the decree-holder's laches in executing his decree.
Bhooputty Lall Tewaree v. Soochee Shekhur
MooKERJEE .... 12 "W. R. 255

9. Delay in suing.

Where a plaintiff sued to recover certain property as
waqf on the ground that the mutwali and his ances-
tor (a former mutwali) had misconducted themselves
by selling to some of the defendants the property
which was the subject of the endowment, and where
it appeared that the plaintiff lay by for merely
twelve years from the time when the vendees pur-
chased and were put into possession, it was hdd
that he was not entitled to the assistance of the
Court. Bhurruck Chandra Sahoo v. Golam
Shuruff . . . . 10 W. K. 458

10.

Right of person

guilty of laches against subsequent purchaser with-
out notice. A bought land from B in 1848, entered
into possession, and in 1852 went abroad. In 1853
C bought the same land from B without notice of
A^s purchase, the land being then registered in B's
name. Held, in a suit brought in 1859, that A could
not eject C, having forfeited his right by his own
laches. Chidambaka Nayinan v. Annapa Nayk-

KAN 1 Mad. 62

But see Virabhadra Pillai v. Hari Rama
PiLLAi 3 Mad. 38

11.

Contract

Act,

1872, ss. 13, 20 — Bill of exchange — Mistake — Void
agreement. On the 3rd March 1881 iV drew a bill in
English at Cawnpore in favour of i^ on a Calcutta
firm and gave it to F's agent, who did not under-
stand English. F's agent kept the bill till the
10th March 1881 without ascertaining its nature.
On that date the Calcutta firm on which the bill was
drawn became insolvent. F subsequently sued N
for the money he had paid for the bill on the ground
that his agent had asked N for a bill drawn on him-
self and not one drawn on the Calcutta firm. N
asserted in defence to the suit that F's agent had
not asked for a bUl drawn on himself, but merely for
a bill on Calcutta. Held, that, assuming that the
sale of the biU was void by reason of both parties
being under a mistake as to the bUl, yet F could
not recover the amount of the biU from N because
his agent had been guilty of gross negligence in
taking the bill and keeping it so long without- as-
certaining its nature and applying for redress.
NiGHTixGAJ.E V. Eaiz-ulla . . L. E. 4 All 334

12.

Mortgagee

taking possession after usufructuary mortgage. An
usufructuary mortgage of lands was executed in
1846, but the mortgagee did not enter into posses-
sion. In 1852 his representative, the plaintiff,
commenced a suit to obtain possession, but allowed
it to drop. In 1854 he commenced the present suit
for the same object. Held, that laches could not be
imputed to the plaintiff from the date of presenting
the plaint in 1852, and that the produce from that
date should be accordingly awarded him. Lakshmi
Naeayana v. Ramapa Chakkira . I Mad. 70

LACHES— cottf^.

13. Mortgage, suit

for redemption of — Neglect in applying in time for
execution of decree for possession — Fresh suit for
redemption. The plaintiff in this suit claimed pos«
session of certain property by redemption of a usu-
fructuary mortgage of jt which he had given the
defendants. The plaintiff had previously sued the
defendants for possession of the property by re-
demption of the mortgage and had obtained a
decree for possession of it, but had not applied for
execution of such decree within the time allowed by
law. Held, that the plaintiff, having obtained in
the former suit a decree for possession of the pro-
perty, and having by his own neglect lost his right
to execution of such decree, could not be permitted
to revert to the position which he held before the
institution of that suit and to bring a fresh suit for
possession. Golam Hossein v. Alia Eukhee Beebee,
3 N. W. 62, followed. Ankudh Singh v. Shed
Prasad . . . . I. L. R. 4 All. 481

14.

Application to

amend decree — Delay. Where a decree-holder came
in, after the lapse of some three and a half years, and
when one of the Judges who made the order ceased
to be a Judge of the Court, to ask for an amendment
of the decree by allowing her the costs of all the re-
mands that took place in the case : — Held, that,
after such a delay, the Court could not make such
an order, or even say whether the decree -holder was
entitled to these costs. Ooday Tara Chowdrain
V. JoNAB Ali Chowdry . . 17 W. R. 358

15. . Redemption re-
fused where mortgagor neglected to set aside a decree
and sale of the mortgaged property under it. Re-
demption of a mortgage was refused, as it appeared
that the mortgaged property had been sold in exe-
cution of a decree against the mortgagor, and that
the plaintiff had neglected and refused to pray that
it might be set aside. Malkasgim bin Shidrajia-
PPA Pasare v. Narhabi bin Shivappa

L. R. 27 I. A. 216

16, Otnission to ap-
peal from order — Acquiescence, presumption of.
WTiere the Assistant Commissioner in execution in
1857 acted without jurisdiction in giving interest
when the decree did not award it, and the claim for
interest was disallowed by the Deputy Commis-
sioner in execution in 1865, and the Deputy Com-
missioner's order was reversed in appeal by the
Judicial Commissioner on the ground tliat the Assist-
ant Commissioner's order was a judicial one from
which no appeal had been preferred : — Held, by the
High Court, that it was too late now to interfere
with an order passed so long ago as 1857, as the
judgment-debtor, by neglecting to appeal, must be
presumed to have acquiesced in that order. Ram
Keran Deo v. Fuhima Bibee . 7 W. R. 37

17. . ■ Defence showing

great delay on part of defendant — Suit for arrears
of rent. Plaintiffs (patnidars) sued the defendants
(dar-patnidars) for arrears of rent. The defendants
alleged that a part of the land had been taken by
the Government, twenty-four years previously.

DIGEST OF CASES.

( 6270 )

liACHES— conii.

for the purposes of railway, and they claimed an
abatement on that ground. Held, that the Limi-
tation Act does not in terms prevent a defendant
from setting up such a defence ; but that the great
delay in this case, combined with other circum-
stances, disentitled the defendants to any relief in a
Court of equity. Ram Narain Chuckerbutty v.
PooLiN Behari Lall Singh . 2 C. L. R. 5

18.

Ignorance

Am'een's proceedings in demarcating land — Delay.
In execution of a decree for possession of land, an
Ameen having been deputed to demarcate the land,
the defendant pleaded, nearly a year after the de-
marcation, that he had been entirely ignorant of the
Ameen's proceedings. Held, that an opportunity
should be given to the defendant of substantiating
his plea ; but that, if plaintiff could prove that
defendant had even indirect notice of what was
transpiring, the lower Court should refuse to go into
the question after so long a delay. Collector of
MoNGHYR V. Bhobany Pershad . 25 W. R. 183

19.

Loss of Govern-

ment promissory notes — Suit on agreement to obtain
duplicate, or restore value. Plaintiff's relative bor-
rowed money from defendant on the security of a
Government promissory note which was stolen from
defendant in 1865, and defendant advertised the
loss. In 1865 an ikrar was executed between the
parties whereby defendant was bound to take steps,
assisted by plaintiff, to procure a duplicate. The
note was endorsed, not in defendant's, but in plaint-
iff's name, and no steps whatever were taken by
plaintiff until 1869, Avhen the note turned up in the
Currency office. Defendant being unable there-
fore to perform his part of the contract : — Held, that
any neglect that had taken place in obtaining a
duplicate was entuely owing to the plaintiff's laches
and that he was not entitled to recover on the ikrar.
Kamixee Debia v. P>adha Sham Koondoo

18 W. R. 58
20. Omission to re-
gister certificate of sale — Right to second certificate
for purposes of registration. Qacere : Whether the
Subordinate Judge should have issued a new certi-
ficate of sale after the original one had been reject-
ed by the Court as being unregistered in order that
the plaintiff might register it, the plaintiff having
already lost, by his own laches, the right to register
the original certificate. Lalbhai Lakhimdas v.
; Kamaludin Husen Khax . 12 Bom. 247

I 21. . . Presumption

I against persons who do not enforce their rights —

I Unexplained delay — Disturbance of long possession

I — Dispute as to chur lands. The presumption that

I usually arises against those who slumber on their

rights is the stronger when applied to rights, the

' subject-matter of which (as in the case of churs) is

j in a constant state of change, and the proof of which

is rendered more than usually difficult by lapse of

time. In this case plaintiff" sought to oust from

possession persons who had enjoyed the property in

question from 1835 to the present time ; and as he

was responsible for nearly twenty years of that

LACHES— concW.

delay, the Privy Council required to be satisfied by
clear proof of the grounds which he alleged for dis-
turbing a possession of such long continuance, and
were of opinion that plaintiff had failed to prove his
case, inasmuch as he had not proved the lands which
had re-formed (if lands had re-formed in the bed of
the river) to have been the same as those which
belonged to his predecessors and had been diluvia-
ted, nor had he proved his title upon the ground of
the locu-s in quo being an accretion to any lands of
which he was possessed. Sham Chand Bysack v.
Kishex Prosaud Surma

18 W. R. 4 : 14 Moo. I. A. 595
Specific perfor-

mance— Issices — Discretion of Court — Delay — Speci-
fic Relief Act (/ of 1877), s. 22— Purchase at Court-
sale — Purchase subject to subsistim/ equities — Right,
title and interest of judgment-debtor. Held, that
laches to bar the plaintiff's right must amount to
waiver abandonment, or acquiescence and to raise
the presumption of any of these, the evidence of
conduct must be plain and unambiguous. Peer
Mahomed v. Mahomed Ebrahim (1905)

I. li. R. 29 Bom. 234
LAKHIRAJ LAND.

See Landlord and Tenant.

10 C. W. TSr. 434

LAMBARDAR.

See North- Western Provinces Rent
Act, s. 93 (i) . I. L. R. 26 All. r>70

LAMBARDAR AISTD CO-SHARER.

See Adverse Possession.

I. L. R. 27 All. 436

See Agra Tenancy Act (Local II of
1901), ss. 104 (2), 156.

1. L. R. 29 All. 15

(See Registration Act (III of iS77), s. 17.
LL.R. 27 AU. 564

1. — . Powers of lam-

bardar to deal with co-parcenary land^s — Lease for
seven years. In the absence of a custom to the
contrary a lambardar has no power without the
consent of the co-sharers to grant a lease of co-
parcenary land beyond such term as the circum-
stances of the particular year or season mav require,
Jagannath v. Hardyal. All. W. N. (1SU7)'207, and
Bansidhar v. Dip Singh, I. L. R. 20 All. 43S,
followed. Chattray v. Nawala (1906)

1. L. R. 29 All. 20

2. Powers of lam-
bardar to deal with co-parcenary laiuls — Lease for
seven years. In the case of a lease of co-parcenary
land granted by a lambardar, where there is any
suspicion established that the lambardar has grant-
ed a long lease to the detriment of co-sharers, a
heavy burden would be placed on the lessee to show
that by custom or for some other cause the lambar-
dar is authorized in granting the lease. On the
other hand where the granting of the lease is shown

( 6271 )

DIGEST OF CASES.

( 6272 )

LAMBARDAE- AITD CO-SHARER— co«c7d.

to be for the benefit of the co-sharers and when the
co-sharers presumably have been shown to have
derived benefit under the lease the lease should not
be set aside. Jagan Nath v. Hardayal, All.
Weekly Notes {1897) 207 ; BansidharY. Dip Singh,
I. L. R. 20 All. 438 ; MuUa Prasad v. Kamta Singh,
All. Weekly Notes {1W6) 277, and Chattray v.
Nawala, I. L. R. 29 All. 20, referred to. Muham-
mad Kasim v. Mian Khan (1907)

I. L. R. 29 All. 554

Suit for pro fits -

Nattire of liability of two lambardars for the same
village — Res judicata. Where there are two lambar-
dars for the same village they may, as a matter of
convenience, elect to divide the village between
them for purposes of collectioti but such division
will be purely a matter of convenience and will not
affect the joint liability of the lambardars to the
co-sharers. A co-sharer sued two lambardars jointly
for profits, and the Court (an Assistant Collector)
held that they were not liable to be sued jointly and
dismissed the suit. The plaintiff did not appeal,
but filed separate suits. Held, that this decision
did not amount to a res judicata as to the lambar-
dars' jomt or separate liability in a subsequent suit
by the same co-sharer against them for profits of
other years. Kamta Singh v. Mukhta Prasad
(1907) . . . . I. li. R. 29 All. 287

Powers of lambar-

dar to deal with co-parcenary lands — Lease for seven
years. In the absence of a custom to the contrary
a lambardar has no power without the consent of
the co-sharers to grant a lease of co-parcenary land
beyond such term as the circumstances of the parti-
cular year or season may require. Chattray v.
Nawala, I. L. R. 29 All. 20, followed. 3Iukhta
Prasad v. Kamta Singh, All. Weekly Notes (1906)
277, distinguished. Tikam Singh v. Khubi Ram
(1908) .... I. L. R. 30 All. 163

LAMENESS.

See Hindu Law — Inheritance — Divest-
ing OF, OR Exclusion from, and Foe-
FEiTUiiE OF, Inheritance.

I. L. R. 26 Mad. 133

LAND.

See Cess, assessment or.

I. L. R. 35 Calc. 82

^See Jurisdiction.

I. L. R. 31 Calc. 937

See Jurisdiction of Civil Court —
Municipal Bodies.

I. L. R. 24 Bom 600

See Land Acquisition Act (I of 1894).
See Prescription — Easements — Land
I. L. R. 16 All. 178
I. L. R. 17 All. 87
See Revenue Sale.

I. L. R. 31 Calc. 725

IjAND—contd.

acquisition of—

See Bengal Tenancy Act, s. 84.

I. L. R. 18 Calc. 271
See Land Acquisition Acts.
See Railway Company.

10 B, L. R. 241

See Statutes, Construction of.

12 Bom. 250

belonging to Government-

See Bombay Survey and Settlement
Act, 1865, ss. 35, 48.

I. L. R. 1 Bom. 352

covered with buildings, suit for

rent of—

See Enhancement op Rent — Liability
TO Enhancement — Lands occupied by
Buildings and Gardens.
See Rent, suit for.

. exchange of—

See Mortgage — Redemption— Right op
Redemption . I. L. R. 21 Bom. 386
See Sale for Arrears of Rent — In-
cumbrances . I. L. R. 23 Calc. 254

for building purposes —

See Enhancement of Rent — Liability
TO Enhancement — Lands occupied
BY Buildings and Gardens.

let for agricultural purposes—

See Landlord and Tenant.

I. L. R. 34 Calc. 71S

. reformation of—

See Accretion.

suit for-
esee Jurisdiction — Suits for Land.

utility of—

See Compensation.

I. L. R. 34 Calc. 599

vs^ith standing crops—
See Theft . I. L. R. 36 Calc. 758

Land reclaimed from the sea —

Dock, construction of. The plaintiff demised to the
defendants for a term of 999 years cei-tain lands a
portion of which. A, was liable to an annual rent
of R500 per acre. For the other portion, B^
which was described in the lease as " ' being at
times covered by the sea," a nommal rent of Rl
per acre per annum was reserved. The lease
contained a power to the lessees " to reclaim from
the sea" the whole or any portion of B, and
provided that upon such reclamation the lessees
should pay for any portion of B which they
might ' ' reclaim from the sea ' ' an enhanced rent

( 6273 )

DIGEST OF CASES.

( 6274 )

LAND— concZd.

at the rate of R500 per acre per annum. The
lessees also had power under their lease to dig
or excavate any portion of the demised lands, and
to remove the soil therefrom. The lessees there-
upon excavated a portion of B, and thus turned it
into a dock, at the entrance of which they construc-
ted gates, by means of which they could in a measure
but not entirely, control the flow of sea water into
the dock. The defendants charged nothing for the
use of the dock, but for the use of the wharves
round it they charged a fee. Held, that the expres-
sion ' ' to reclaim from the sea ' ' signifying in its
primary and ordinary sense, the conversion of the
reclaimed land into dry land, by rendering it secure
from the ingress of the sea, with the view to its being
used as such, the construction of the dock was not
such reclamation as was contemplated in the leases
and therefore the enhanced rent of of R500 per acre
could not be charged for the water area of the dock.
Secretaky of State for India v. Sassoon

I. L. B. 1 Bom. 513

LAND ACQUISITION.

See Land Acquisition Acts.

Afportionment-

Landlord and tenant — Bengal Tenancy Act ( VIII
of 1SS5), s. 50, applicability of — Presumption of
permanency of holding — Compensation money.
In apportioning compensation money between
the landlord and tenant in a Land Acquisition
proceeding, s. 50 of the Bengal Tenancy Act
has no direct application, but the principle involved
in that section is a useful guide to the Courts in
matters of this nature. Nanda Lal Goswami v.
Atakmani Dassee (1908) I. L. R. 35 Calc. 763
2. Compulsory ac-
quisition of land — Compensation — Method of hypo-
thetical development for fixing value of land to be
acquired — Charges as to the costs of the speculator —
Compensation based on sales of lamls into suitable
bvilding sites — The two methods employed in con-
junction and irroducing the same result. The method
of hypothetical development is open to the
objection that it involves or presupposes the inter-
mediation of a third person, called the speculator
or exploiter, that is to say, a person who purchases
the land wholesale from the claimant in order after-
wards to sell it retail for building purposes. The
value of the land to the owner is what must be re-
garded, and that is the price which it will fetch if
disposed of on most profitable terms. The owner is
not to be deprived of the most advantageous way
of selling his land by reason of the fact that it is
subject to immediate acquisition. If the sale of the
land in building sites is impossible except through
the speculator, then, no doubt, allowance will have
t,i be made for the profits, costs and other charges
of the speculator. But the claimant is not to be
debited with these expenses unless the introduction
of the speculator is a commercial necessity. And
there is no necessary reason why the claimant should
be driven to have recourse to the speculator for
a business which he can do for himself. When

VOL. III.

LAND ACQUISITION— fonc/rf.

compensation is fi.xed on the general principle of a
sale of the land split up into parcels suitable for
building, it is not only necessary but inappropriate
to make a special deduction on account of the small
area marked off for the roadway. Where the
method of hypothetical development is employed
for assessing compensation in conjunction ^\'ith
the method of ascertaining the present value of the
land by reference to the prices realised by the sale
of neighbouring lands, and the consequence is that
the two methods lead to very much the same
result, it follows not only that that result is en-
titled to so much the greater degree of confidence
but also that the method of hypothetical develop-
ment is itself corroborated. In the method of
arriving at a valuation of land by reference to prices
realised by sales of neighbouring lands, it Ls plain
that no evidence of former sales can be obtained
which shall be precisely parallel in all its circum-
stances to the sale of the particular land in question.
Differences small or great exist in various condition,
and what precise allowance should be made for these
differences is not a matter which can be reduced to
any hard-and-fast rule. Trustees for the Improve-
ment OF the City of Bombay v. Kar.sondas (1008)
I. li. R. 33 Bom, 28

LAND ACQUISITION ACT (VI OF 1857).

See Appeal— Acts— Land Acquisition
Act.

See Arbitration — Arbitratiox under
Special Acts and REGULiVTiONS — Act
VI of 1857.

See Damages— Measure and Assess-
ment of Damages — Torts.

6 Bom, A. C. lie

See Damages— Suits for Damages-
Breach of Contract . 8 W. R. 327

See Land Acquisition Act (X of 1870).

See Limitation Act, 1877, s. 19 (1859, s. 4)
— Acknowledgment of Debts.

11 W. R. 1
LAND ACQUISITION ACT (X OF 1870).

See BOMB.A.Y Civil Courts Act. s. 16.

I. L. R. 16 Bom. 277

See Guardian— Duties and PnwKRS of

Guardians . L L. R. 18 Calc. 99

L. R. 17 I. A. 90

See Landlord and Tenant— Building

on Land, Right to remove, and

Compensation for Improvements.

I. L. R. 22 Calc. 820
See Port Commissioners Act (Bengal
Act V of 1870). ss. 5. 6, .31. 38. 39.

I, L. R. 33 Calc. 1243

See Res Judicat.'v— Estoppel by Judg-
31ENT . .LL. R. 20Mad,269

( 6275 )

DIGEST OF CASES.

( 6276 )

LAND ACQUISITION ACT (X OF 1870)
• — contd.

. sale of mortgaged land under —

See Transfer of Property Act. s. 68.

X li. B. 13 Mad. 321

High Court —

Powers of superintendence. The Courts established
under Act X of 1870 are Courts subject to the appel-
late jurisdiction of the High Court, and not the less
so because an appeal lies to the High Court from
their decisions in certain cases only. The High
Court consequently has the power of superinten-
dence over those Courts under s. 15 of 24 and 25
Vict., c. 104. 2n the malter of the jiftition of
Abdool Ali . . . . [15 B. L. E. 197

Abdool Ali v. Verner. Verner v. Abdool
Ali . . . . 23 W. R. 73 ; 239

Award of com-

pensation— Payment of compensation awarded how
enforced against the Collector — Appeal from an
order irregularly made. The Land Acquisition Act
(X of 1870) did not provide for or contemplate an
award for compensation being enforced ai^ainst the
CoUector by execution proceedings, and there is no
general law which enables a Civil Court to enforce
such a statutory liability, when imposed upon a
Collector or other civil officer, by means of execution
proceedings without a suit. The ordinary mode of
enforcing such an obUgation is by suit unless the
Legislature when it creates the obligation pre-
scribes such other means of enforcing it. Nilkanth
Ganesh Natk v. Collector of Thana

I. li. B. 22 Bom. 802

3. Apportionment of

compensation-money, principle of — Landlord and
tenant. In apportioning compensation-money
between a landlord and a tenant, the principle to be
followed is, first, to ascertain the amount of rent
payable to the landlord and capitalize that rent at
so many years' purchase, and then to put a money
value upon the chance (if there be anj') of an en-
hancement of the then existing rent. These two
sums the landlord is entitled to get, and the tenant
is entitled to get the balance. Sham a Prosunno
13ose Mozumdar v. Brakoda Sundari Dasi (1900)
I. L. B. 28 Calc. 146

3. 3, 24 and 25—" Land "—Value

of works on land used for salt factory — Exercise
of jurisdiction by Judge under the Act. Having
regard to the definition of ' ' land ' ' contained
in s. 3 of Act X of 1870, there is nothing illegal
in a Judge talking into account the value of
works on the land which make it suitable for a salt
factory ; and even if, in making his estimate of the
market value of the land, he took into consideration
the price paid for neighbouring pans, and was in
error in so doing, his mistake would be only one
concerning the principles of valuation, and not an
in-egularity in the exercise of jurisdiction. Joseph
«. Salt Co. . . I. L. B. 17 Mad., 371

LAND ACQUISITION ACT (X OF 1870)

— contd.

s. 9.

See Execution of Decree — Mode of
Execution — Mortgage.

I. L. B. 16 AIL 78

-- ss. 9, 16, 40 — Notice — Persons known

or believed to be interested — Power to take posses-
sion— Vesting of latid absolutely in Government.
Land acquired under the provisions of Act X
of 1870 vests absolutely in the Government, free
from all encumbrances, after a bond fide award or
reference by the Collector has been made and pos-
session taken, even when no special notice, as re-
quired by s. 9 of the Act, has been served on persons
known or believed to be interested therein. North
London Raihvay Company v. Metropolitan Board of
Works, 28 L. J. Ch. 909, and Galloway v. Mayor
awl Commonalty of London, L. R. 1 H. L. 34,
referred to. Ganga Ham Marwari v. Secre-
tary OF State for India (1903)

I. L. B. 30 Calc. 576

1. s. 11. — Ascertainment of value and'

tender of compensation — Land given as compensa-
tion—Mad. Beg. II of 1803, s. 44—Darkhast rules-
Collector, power of. The owner of certain land
taken up under the Land Acquisition Act, after the
amount of compensation had been fixed, conveyed
her interest to the present defendant, who applied
for the land now in dispute in lieu of compensation,
it being then Government waste ; and this appli-
cation was granted and the deed of exchange exe-
cuted. The plaintiff and another had previously
applied under darkhast rules for the land now in
dispute, but the Collector ordered the land to be
placed in possession of the defendant. The Board
of Revenue, however, du-ected that the land be
made over to the prior darkhastdars on terms which
were complied with, and they were put into posses-
sion. The plaintiff, having been subsequently dis-
possessed by the defendant, now sued for a de-
claration of title and for possession. Held, that the
plaintiff was entitled to the land as against the
defendant. There is no provision in the Land
Acquisition Act under which land can be given as
compensation, and the Collector acted beyond his
powers both under that Act and under Madras
Regulation II of 1803, s. 44, in authorizing the
alienation of any land without the sanction of the
Board of Revenue. Narayana v. Kamchandra
I. L B. 13 Mad. 485

2. Claim to share

of compensation — Valuation in private transaction.
The plaintiff, as heir to her husband, brought a suit.
in which Government was not represented, for a
declaration of title to a quarter share of the jenm
value of land taken up under the Land Acquisition
Act. It appeared that the plaintiff's husband had
mortgaged his share of the land in question to the
defendants' predecessor in title in 1872 by an in-
strument in which his share was valued at R375.
Held, that the valuation of the plaintiff's husband's

( 6277 )

DIGEST OF CASES.

( 6278 )

LAND ACQUISITION ACT (X OF 1870)
— contd.

s. 11— concld.

share in the i:istfumcnt of 1872 was not binding on
the plaintiff in the present suit. Chomu v. Ummi

I. L. R. 14 Mad. 46

_ ss. 13, 24 and 25—Valmtwn of

land acquired for public purposes — Time of acquisi-
tion— Award of compensation. — When land has been
acquired under the provisions of the Land Acqui-
sition Act, 1870, changes in its condition, between
the time of such acquirement and that of the actual
conclusion of the award of compensation, are not
to increase or lessen the valuation. The provision
in s. 25 points to ascertaining the value at the time
when the land is acquired, the rii^ht to compensa-
tion being simultaneous with the right to the land
attaching to the Government. At the time when,
according to the claim, the right to certain plots of
land attached to the Government, the sub-soil had
no market value, because the surface was in use for
public roads, having been so for about half a cen-
tury. Held, that, even if the claimants had proved
a title in themselves to the sub-soil of the plots un-
derneath the roads, still no marliet value had been
shown to belong to that sub-soil within the meaning
of 8S.13 and 24 of the Land Acquisition Act, 1870, at
the time of the right therein attaching to the Gover-
ernment for a public purpose ; therefore compensa-
tion had been rightly disallowed. Manmatha
Nath Mitter v. Secketary op State for India
I. L. R. 25 Calc. 194
■L. R. 24 1. A. 177
1 C. W. N. 693
s. 15.

See Appeal — Acts — Land Acquisition
Act . . I. L. R. 16 Bom. 525

See Special or Second Appeal — Orders
subject or not to Appeal.

I. Ii. R. 9 Calc. 838

!• — Reference by Col-
lector to District Court — Land claimed by Collector on
behalf of Government or Municipality. — The scope
and object of the Land Acquisition Act (X of 1870)
is to provide a speedy method for deciding the
amount of the comp^Misation payable by the Col-
lector, when such amount is disputed, and the per-
son or persons to whom it is payable. S. lo of the
Land Acquisition Act contemplates a reference
when the question of the title to the land arises
between the claimants who appear in response to
the notice issued under s. 9 and who set up conflict-
ing claims one against another as to the land i-e-
quired, which the District Judge as between such
persons can determiiK>. Tlie C >llectjr has no power
to make a refeieaee to the District Judge under s. 15
m cases in which he claims the land in question on
behalf of Government or the Municipality, and
denies the title of other claimants, and the District
Judge has no jurisdiction to entertain or determine
such reference. Imdad Ali Khan v. Collector ok

ffABAKHABAD . . . I. L. R. 7 All. 817

LAND ACQUISITION ACT (X OF 1870>
— contd.

s. 15 — concld.

R(ftrt>

Collector to Judge — Land in re-'spect of which n/erence
is mcule claimed by Collector on behilf of Government.
The Collector has no power to make a reference to
the District Judge under s. 15 of Act X of 1870 in
cases in which he claims the land, in respect of
which such reference is made, on behaK of Govern-
ment, and denies the title of other claimants, and
the District Judge has no jurisdiction to entertain
or determine such reference. Imdad Ali Khan v.
Collector of Farakhabad, I. L. R. 7 All. 817, fol-
lowed. Crown Brewery, Mussoorie v. Collec-
tor OF Dehra Dun . I. L. R. 19 All. 339

3. ss. 15, 38 and 55— District

Court, Powers of — Compensation, its principle and
measure — Lands severed from a factory. — The Laud
Acquisition Act provides for two classes of ref( r-
encc to the Judge, one to assess compensation undt-r
s. 15 and the other to apportion compensation
under s. 38. The power of the District Court is
limited to the determination of these questions and
questions of title incidental thereto. There is no
power in the Judge or the High Court in appeal to
decide on any such reference a question arising
under s. 55. Land taken under the Act is taken
discharged of all easements, and the loss of ease-
ments must be taken into account in assessing com-
pensation for injurious aiiection. Taylor v. Col-
lector OF PuRNEA . I. L. R. 14 Calc. 423

3. 16 and 17— .4c( VI of UJi,

s. 8 — Acquisition of land by Government — Right
of imvj. VVheu land is taken by the Govern-
ment under Act VI of 1857, the land is absolutely
vested in the Government under s. 8, free from any
right of way previously enjoyed by the public
over such land. In the matter of the petition
of Fenwick

6 B. L. R. Ap. 47 : 14 W. R. Cr, 72
2. - --ict VI of 7> :;,

s. S Right of way. A right of way cannot by the

provisions of Act VI of 1867 continue to exist over
land acquired by a railway company under that Act
with the aid of Government. If, however, the
railway company by their representations and con-
duct lay themselves under legal obligation to pro-
vide a way, such obligation may be enforced. Col-
lector OF THE 21-Pergunnahs V. NoBiN Chunder
Ghose . - • • 3 W. R. 27

1^ s. 19 — Assessor — Qualified assessor

Bias. The Municipality of Poona wishing to take

up the applicant's land, the Collector of Poona
determined the amount of compensation, and ten-
dered it to the applicant, who declined to accept it.
The Collector tliereupon referred the matter to the
District Judge. Two assessors were appointed to
aid him, one by the applicant and another by the
Collector. The nominee of the Collector was the
:Mamlatdar of Poona, a rate-payer and ex officio
member of the Municipality, who whilst a member
of the managing committee, had unsuccessfully

9 o 2

( 6279 )

DIGEST OF CASES.

( 6280 )

■LANJy ACQUISITION ACT (X OF 1870)

— conld. \

, s. 19— cowcW. !

negotiated with the applicant for the purchase of ;
the ground. The District Judge made an award
upholding the Collector's valuation. Held, that i
the award was bad and must be set aside, as the j
Collector's nominee had, under the circum-stances, \
a real bias, and was not a qualified assessor within
the meaning of s. 19 of the Land Acquisition Act

(X of 1870). KASHIXATH KhARGIVALA r. COLLEC- ,

TOB OF PooNA . . I. L. K. 8 Bom. 553 :

LAND ACQUISITION ACT (X OF 1870).

— contd.

s. 22 — concld.

Assessor, nppoinl-
tn assessor — Bias

went of — Disqualifications n

Obiections to assessor's appointment not raised \

,•„ time — Waiver — Effect on minor of guardian omit- j
ting to raise objectiov — Assessor as witness — Mamlat-
dar — Supzrintendence of High Court. — Certain 1
land belonging to the applicant, a minor, was taken
by the Municipality of Hubli under the Land Ac-
quisition Act (X of 1870). The Mamlatdar of
Hubli, who was an ex officio member of the Municipal
Committee, took part in the negotiations for the
purchase of the land. He also gave evidence as to
its value m the inquiry before the C'oUector. As the
price offered by the Collector was not accepted by
the applicant, the matter was referred to the Dis-
trict Judge, under s. 15 of the Act, for the purpose
of determining the amount of compensation. On
this reference the Mamlatdar acted as an assessor
appointed by the Collector, and was also examined
as a witness as to the value of the land. But no
objection was taken to his acting as an assessor.
The District Judge eventually upheld the Collec-
tor's award. On an application under s. 622 of
the Civil Procedure Code (Act XIV of 1882) —
Held, that the award was bad. The Mamlatdar had,
iinder the circumstances, a substantial interest in
the matter, sufficient to disqualify him from acting
as an assessor. Kashinath v. Collector of Poona, I. L.
R. 8 Bom. 553, followed. Held, also, that the minor
applicant was not estopped from objecting to the
competency of the Mamlatdar by the fact that his
guardian had not raised any such objection in the
Court below, and might therefore be taken to have
waived it. Assuming that there was a waiver, it
could not bind the minor, as it was not for his bene-
fit. Held, further, that a person who is appointed an
assessor under s. 19 of the Land Acquisition Act
performs g'Masi'-judicial functions, and is therefore
incompetent to testify as a witness in the same ] r >-
ceedings. Swamirao v. Collector of Dharwar.
I. L. R. 17 Bom. 299

1. ^— s. 22 — Deterinination of amonnt

of compensation — Assessors, non-appearance of—
Claimant, non-appearance of — Pleader, non-appear-
ance of. Where, in a compensation case before the
Land Acquisition Court, neither of the assessors
nor the pleader for the claimant appear on the day
fixed for hearing, the Judge should not proceed with
the case in their absence by confirming the Col-
lector's award, but should give notice to the par-
ties ; and if they do not, within the time limited by
s. 22 of the Land Acquisition Act, cause their asses-

sors to attend or appoint others, the Court should
appoint other assessors in the place of those who
were not in attendance. In the matter of the

CZl ''*!""" """' .1. u riTcSe'asS

2 Determination of

amount of compensation— Assessor of claimant, non-
appearance of-'' Neglect to act ' '-Appointment of
another assessor by Judge without notice to claimant.
On the hearing of a i-eference in a Land Acqmsition
case to determine the amount of compensation to
be awarded, the as.sessor duly nominated on behalt
of the claimant was not present, owing to some
misunderstanding as to the order of the Judge in an
application by the claimant for an adjournment ot
the case made two days previously, and the other
side objecting to any adjourr.ment, the Judge called
upon the pleader for the claimant to nominate ano-
ther assessor on the claimant's behalf which the
pleader declined to do, as one had been already duly
nominated. The Judge thereupon himself nom.na-
nated another assessor, and, proceeding with the .
case, confirmed the award of compensation by the
Collector, Held, assuming that the absence of the
claimant's assessor amounted to a neglect to act
that the Judge had no power to appoint another
without seven days' notice to the claimant, and
that the proceedings were consequently irregular
and not in accordance with the Land Acquisi-
tion Act, and must be set aside. In the matter of
Peaksok .. Collector o^£h^_2^;P--™83.

I s ^^— Valuation of land— Annual

rental— Market value. In a.ssessing the market
value of house property, situated in the town ot
Bulsar, acquired for pubUc i/urposes under Act Xot
1870, the Court awarded a capital sum which at the
rate of six per cent, per annum, would jneld interest
equal to the ascertained annual rental ot the pre-
niises after deducting the amount necessarily ex-
pended for annual repairs. Carey v. Bantt Mn a^
Carey v. Kaltj Miya . • 1° Bom. 34

o Compensation —

Determination of value— Occupied and unoccupied
land In determining the compensation to be al-
lowed for land taken for public purposes, the Court
distinguished between the occupied and the u -
occupfed land. In the case of the^ former the n
come yielded was taken into account with a new to
consider the number of years purchase to be al-
lowed for the land, and, in estimating the value of
the codowns yielding rent, a deduction was made for
the chance of some of them being unoccupied for
part of the year, as well as for periodical repairs and
municipal taxes. In the case o """^^^^^^J^"^;
it was held that the thing to be looked at was not
the cost of what had been done to Preserve the
land or the money spent on improvements, but the
market value at the time, with an '^1 «^vance for the
manner in which the land was taken from the clami
ant. Collector of Hooghly ..Raj Kr^st^
Mookerjee . • • . ^^ • •

( 6281 )

DIGEST OF CASES.

( 6282

liAND ACQUISITION ACT (X OF 1870)

— conid.

. s. 24 — Condi.

3, Principle on

which compensation is given — Market value of pro-
perty. Where Government takes property from
private persons under statutory powers, it is only
right that those persons should obtain such a mea-
sure of compensation as is warranted by the current
price of similar property in the neighbourhood,
without any special reference to the uses to which it
may be applied at the time when it is taken by the
Government, or to the price which its owners may
previously have given for it. In accordance v/ith
this principle, the question for enquiry is, what is
the market value of the property, not according to its
present disposition, but laid out in the most lucra-
tive way in which the owners could dispose of it ?
In the matter of the Lanp Acquisition Aci (X
OF 1870). Premchand Bueral v. Collector of
Calctjxta . . I. L. R. 2 Cale. 103

4. Principle on which

compensation is given — Land subject to mokurari
lease in favour of Government. When in a Land
Acquisition case it was shown that the land to be
acquired was subject to a mokurari lease in favour
of the Government, and the Court in estimating the
compensation had deducted 5 per cent, from the
rent on account of collection charges, — Held, that
such deduction was excessive, and that, having re-
gard to the fact that the amount was R85-4 and was
collected only once in a year, 4 annas was all that
should have been deducted. Secretary of State
-TOR India v. Sham Bahadoor .

I. L. E. 10 Cale, 769

5. ss, 24, 25 —Compensation — Mode

of determining the amount of compensation to he
given — Land in vicinity of toivn where building is
going on — Market- value at time of awarding com-
pensation, meaning of. The recognized modes of
ascertaining the value of land for the purpose of
determining the amount of compensation to be
allowed under the Land Acquisition Act (X of 1870)
are — (i) If a part or parts of the land taken up
has or have been previously sold, such sales are
taken as a fair basis upon which making all pro-
per allowances for situation, etc., to determine the
value of that taken, (ii) To ascertain the net
anntial income of the land, and to deduce its value
by allowing a certain number of years' purchase of
such income according to the nature of the pro-
perty, (iii) To find out the prices at which lands
in the vicinity have been sold and purchased, and
making all due allowance for situation, to deduce
from such sales the price which the land in question
will probably fetch if offered to the public. In
the case of land in the vicinity of a town where
building is going on, it would be unjust to adopt the
second of the above methods if there is a fair pro-
bability of the owner being able, owing to its situa-
I tion, to sell or lease his land for building purposes.
The value of land should be determined, not neces-
earily according to its present disposition, but laid
out in the most lucrative and advantageous way in
"Which the owner can dispose of it. The market

LAND ACQUISITION ACT (X OF 1870)

— contd-

ss. 24, 25— corw'd.

value " at the time of awarding compensation "
may fairly be taken to mean " at the time when
proceedings under the Act are taken." In the
matter of the Land Acquisition Act (X of
1870). In thr matter of Mun.ti Khetsey

I. L, R. 15 Bom. 279

6. £s, 24 25, 15, 42—

Compensation — Mode of assessmetit — Anliquilie-<t not
proved to hive any market-value — Quarrirx — Persons
interested in the land acquired. The Government
having, under the Land Acquisition Act (X of 1870),
commenced proceedings to acquire a plot of land
containing granite quarries besides ancient temples
and sculpture, a reference was made to the District
Judge (ss. 15, 18) as to the amount of the compensa-
tion to persons interested in the land. Held, (i)
with regard to the nature of the property, that only
the value of the stone quarries as yielding profit
could form the subject of assessment, and the
value of the antiquities could not ; for, under the
circumstances, no market value could be assigned
to the antiquities ; (ii) the right, if not the only,
course of proceedings was to estimate the rent at
which possibly the whole plot might be leased, on
the basis of how much rent a portion of the plot
when leased for quarries had in fact obtained for
the zamindar ; (iii) to calculate the purchase-
money, as the first Court had done, at twenty-five
years of such rent was proper, and no reason
api^eared for reducing this number of years to fif-
teen ; (iv) though quarrymen had been employed
and had earned money, on the plot, they were not
interested therein, in the sense intended by the
Act ; and their earnings in which the zamindar
was not interested, could not enter into the question
of compensation and increase the award ; (v) un-
der s. 42, fifteen per cent, was to be paid on the
sum awarded. Secretary of State for India
V. Shanmugaraya Mudaliar

I, Ij. R. 16 Mad. 369
L. R, 20 I, A, 80

1^ s, 35 — A-pv^&l—Diff'rfnce of

opinion between Judge and assessors — "■ Amount of
compensation.'' The " amount of conpensation "
in s. 24, Act X of 1870, must be taken to mean the
whole amount of the award, and not the amount of
the different items to be taken into consideration
separately under that section ; therefore, where the
Judge differetl wholly from one assessor, and differed
from the other assessor in the amounts awarded for
the different items, but agreed with hiin in the total
amount awarded -.—Held, that there was not such a
difference of opinion between the Judge and both
assessors as to give a right of appeal from the Judge's
decision under s. 35. Anandakkisiin v Bo-e f.
Verner . 13 B. L. R, 300 : 22 W. R. 305

2, - Appeal — Apptal

from decision of Judge and assessors — Collection
charg es, amount of, to he deducted in caj^es of
mokurari lease. In a case under the Land Acquisi-
tion Act, if there be a difference of opinion between

( 6283 )

DIGEST OF CASES.

( 6284 )

LAND ACQUISITION ACT (X OF 1870)

— contd.
s. 35— concW.

the Judge and the assessors, or any of them, upon a
question of law or practice or usage having the
force of law, but ultimately they agree upon the
amount of compensation, s. 28 must be taken to
apply, and no appeal wUl lie against the decision of
the Court with reference to the point upon which
the Court and the assessors differed. If, however,
in addition to differing upon any question of law,
etc., they ultimately differ also as to the amount of
compensation to be awarded, s. 28 does not apply,
but under s. 35, coupled with s. 30, in such a case
an appeal will lie, and in such appeal of questions
decided by the lower Court, whether the opinion of
the assessors coincided with that of the Judge or
not upon these C|uestions, are open to the parties
in the Appellate Court. Secretary op State
FOR India v. Sham Bahadooe

I. L. R. 10 Calc. 769

3. Ay peal- — Differ-
ence of opinion between Judge and assessors — Com-
pensation. Under s. 30, Act X. of 1870, an appeal
lies from the decision of the Judge where he differs
from the assessors, whether the assessors agree
with one another or not. In ike matter of the
Land Acquisition Act (X of 1870). Heysham v.
Bholanath Mxillick.** Bholanath Mlillick v.
Heysham . 11 B. L. R. 230 : 17 W. R. 221

4. Appeal — " Dis-
trict Judge " — Officer specially appointed under Act
X of 1871 — Costs. An appeal from the decision of
a judicial officer appointed to exercise the functions
of a Judge under Act X of 1870 within the town of
Calcutta hes to the High Court sitting to hear ap-
peals from decisions by the Court in its original
civil jurisdiction. The words '' District Judge " in
s. 35, Act X of 1870, include the High Court in its
appellate jurisdiction, and there is nothing in the
definition of those words given in Act 1 of 1868,
s. 2, cl. 12, opposed to this meaning. No appeal
lies on a question of costs in a case under Act X
of 1870. In this case the costs of the appeal were
allowed by the High Court on scale 2. Bamasoon-
Deree Dossee v. Verner. . 13 B. L. R. 189
22 W. R. 136

Apportionment of

compensation referred to Jud/je — Denial by one
party interested of right of another to share in com-
pensation— Appeal. Under s. 35 of Act X of 1870,
the fact that one of the persons concerned denies
altogether the right of another of such person to
share in the compensation awarded will not prevent
an appeal lying from the order of a District Judge
apportioning compensation. Kishan TmI v. <S/ia»-
kar Singh, All. Weekly Notes (1888) 17, overruled
HrSAiNi Begam v. Husaini Begam

I. L. R. 17 All. 573

s. 39.

See. Res Judicata — Adjudications,

I. li. R. 7 Calc. 406

LAND ACQUISITION ACT (X OF 1870)

— coritd.
s. 39 — contd.

See Special or Second Appeal — Orders
subject or not to Appeal.

I. L. R. 9 Calc. 838

1. Appeal — Apportionment of com-
pensation— Judical officer appointed as Judge
in town of Madras — Appeal. No appeal lies
to the High Court from a decision apportion-
ing compensation by a judicial officer appoint-
ed to perform the functions of a Judge within
the town of Madras under Act X of 1870, the Land
Acquisition Act. Aroonachella Gramany v.
VilliappaGramany. . . 8 Mad. 103

A ppeaj, — A ddi -

tional Judge — District Judge — Civil Procedure Code
(Act XIV of 1882), s. (:4:7. An Additional Judge
appointed to hear cases under the Land Acquisition
Act, 1870, is a District Judge within the meaning
of s. 39 of the Act. Under s. 647 of the Civil Pro-
cedure Code, an appeal from the decision of an Ad-
ditional Judge so appointed lies to the High Court.
In the matter of the application of Poeesh Nath ,
Chatter J ee v. Secretary of State for
India . . . . I, L. R. 16 Calc, 31

3. Compensation, apportionment

of — Right of suit. A decree which apportions com-
pensation made under s. 39 of the Land Acquisi-
tion Act (X of 1870) b}^ a Couit to whom such-
matter has been referred under s. 38 of the same
Act is final, and cannot be questioned otherwise
than by the appeal permitted under s. 39. Nil-
monee Singh Deo v. Eambundhoo PvOy

I. L. R. 4 Calc, 757 : 3 C. L, R. 211

4. - — - Act VI of 1S17,

s. li — Apportionment of compensation. The com-
pensation should be divided by the parties in the
ratio of their respective interests in the land. The
zamindar of ghatwali lands is entitled to a share, in
retaining, under Kegulation XXIX of 1814, an
interest in such lands. Bhageeruth Moodee v.
Jabur Jummah Khan . . 18 W, R. 91

Apportionment of

compensation, claim and title to. ^^'hen land is
taken for public purposes, the party primd facie
entitled to compensation is the proprietor. Any
party claiming it against him by virtue of a right
created by him must prove his title to it. Isst'R
Chundee Baneejee v. Suttyo Dyal Baneejee
12 W. R, 270

6. — — Compensation,

apportionment of — Party in possession — Land taken
for railway. When a railway cc mpany takes land
for public purposes, the party in possession at the
time is primd facie entitled to the money paid for it,
until some one else establishes a prior claim. Chun-
dee Churan Chatteejee v. Bidoo Budden
Baneejee , . . . 10 "W. R, 48

7. Compensation
apportionment of — Land taken for railway. Wheia
lands are taken compulsorily, the principle up(m.

( 6285 )

DIGEST OF CASES.

LAND ACQUISITION ACT (X OF 1870)

—contd.
. s. 39— contd.

which the amount of compensation ia divisible
amongst the zamindar and the holders of several
subordinate tenures is by ascertaining the value <>f
the interest of each holder of a tenure, and to give
him a sum equivalent to the purchase-money of
such interest. Gordon, Stuart & Co. v. Mohatab
Chunder . Marsh. 480 ; 2 Hay 565

8. — Compensation,

apportionment of — Land taken for railway — Deduc-
tion from rent by tenant. AVhen land is taken for
railway purposes and compensation is made which
is divided between the zamindar and those holding
under him, any deduction of rent claimed from the
zammdar must be reckoned with reference not to
the gross amount of compensation, but to the pro-
portion which passed into his hands. Dheraj
Mahtab Chanb v. Chittro Coomaree Bibee

16 W. R. 201

9. — Compensation,

apportionment of, for land — Owner under grant by
zamindar retaining reversionary interest. It was
held that, assuming that possession of certain plots
of land had been granted by the zamindars to per-
sons to build thereon, and to hold so long as the
buildings subsisted, the zamindars being only en-
titled to a reversionary interest in the land contin-
gent on the owner of the buildings allowing them to
fall into ruin, the owner of the buildings would be
entitled to the bulk of any compensation awarded
umier the provisions of Act X of 1870 in respect of
the sites. GuR Parshad v. Umrao Singh

7 N. W. 218

10. -- Compensation,

apportionment of. A patnidar is entitled to com-
pensation on account of lands in his patni taken for
public purposes, although there was no agreement
to that effect. Joy Kishen Mookerjee v.
Reazoonissa Beebee . . 4 W. R. 40

11. Apportionment

of compensation between zamindar and patnidar,
principle of. The apportionment between zamin-
dar and patnidar of the amount awarded as com-
pensation for land taken by Government under the
Land Acquisition Act will depend partly on the
sum paid as bonus for the patni, and the relation
that it bears to the probable value of the property,
and partly on the amount of rent payable to the
zamindar, and also the actual proceeds from the
cultivating tenants or under-tenants. BuNWARi
L.\L Chowdhby v. Burnomoyi Dasi

I. li. R. 14 Calc. 749

12. Compcnsatio7i,

apportionment of. Held, that the principle laid
down in the case published at page 328 of the Sad-
der Decisions for 1860 (vide foot-note) to regidate
compensation for laud taken for pubhc purposes is
not applicable to the division of compensation in
every case. It would not provide for the case of
several patnis were the land is taken from the
helder of the lost tenure, and where the grantors of

LAND ACQUISITION ACT (X OF 1870)
— contd.

B. 3Q— contd.

the several intermediate tenures have received a
sum of money as a bonus for the grant. Mahatab
Chand Bahadoor v. Bengal Coaj. Company

10 W. R. 391

13. Compensation,

apportionment of — Compensation for land taken for
public purposes — Distribution of compensation.
Where land held in patni is taken by Government
for public purposes, the proper mode of settling the
rights of the parties interested is to give the patni-
dar an abatement of his rent in proportion to the
quantity of land which has been taken from him,
and to compensate the zamindar for the loss of rent
which he sustains. According!}^ the compensation
awarded was held to have been ver}' fairly distri-
buted where the zamindar received a little more
than sixteen years' purchase of the rent abated,
and the patnidar received the remainder. When
the compensation-money was in deposit with the
Collector without specification of shares, the patni-
dar's cause of action against the zamindar was held
to have arisen when the former sought to obtain hi.**
share and was prevented by the latter's not joining
him or enabling him to get it. Raye Kissory
Dossee v. Nilcant Dey . 20 W. R. 370

14.

Apportionment

of compensation-money — Zamindar — Patnidar — Dar-
patnidar — Construction of document. Where a
patni and a dar-patni has been given of land which
is afterwards acquired by the Government for pub-
lic purposes under the provisions of the Land Ac-
quisition Act, the zamindar is, generally speaking,
entitled to as much of the compensation-money as
the patnidar is. As a rule, raij-ats having a right
of occupancy in such land and the holders of the
permanent interest next above the occupancy
raiyats are the persons entitled to the larger portion
of the compensation-monej-. The principles on
which compensation -money should be apportioned
among the different holders discussed and explained.
Construction of dar-patni lease. Godadhar Dass
V. Dhunput Singh

I. L. R. 7 Cale. 585 : 9 C. L. R. 227

15.

Act YI of isr,:-

Compensaticn for land taken. A portion of the area
of two villages having been taken under Act VI of
1857 and compensation deposited in the Collectorate
the dar-patnidar sued for the same, contending that
the zamindar was entitled to twenty times the
rental payable by the dar-patnidar, less expenses of
collection. The zamindar claimed twenty times
the profits he derived from the patnidar, less reve-
nue paid to Government. Held, that as the plaint-
ill's calculation secured to the zamindar a more
favourable result than that for which the latter
himself contended, it was sufficient to decree the
suit without determining the proper principle on
which compensation should be allowed. Beng.al
Coal Company v. Mahtab Chand Bahadoor

12 W. R. 340

( 6287 )

DIGEST OF CASES.

( 6288

XAND ACQUISITION ACT (X OF 1870)

— contd.

— s. 39 — conid.

16.

Distribution of

rompensation allotved — Mirasidar — Allowance for
expenses of cultivation. No general rule can be laid
do-svn as to the tenure and rights of persons
called " Ulkudi Sukhavasis " or " Payakaris." but,
where land is taken under the Land Acquisition Act,
they are clearly entitled to a proportion of the com-
pensation granted. In ascertaining the propor-
tionate interest of the mirasidar and ulkudi tenant,
allowance must be made for the mirasidar's rever-
sionary right ; and when the rights of the parties
are calculated on the basis of the value of the pro-
<luce, allowance must be made for the expenses of
cultivation. Appasami Mudali v. Rangappa
]SUttan . . . . I. Ij. R. 4 Mad. 367

17.

Apportionment of

compensation — Landlord and tenant. The mode of
apportionment of compensation between landlord
and tenant considered. Dunne v. Nobo Krishna
MooKEEJEE . . I. li. B. 17 Cale. 144

18. ■ — Land Acquisition

Act {I of 1894) — Superior zamindar and talukhdar —
A pportionment of compensation-money — Landlord
and tenant. No fixed principle can be laid down
regarding the apportionment of compensation
allowed by Government under Act I of 1894 be-
tween the superior zamindar and the talukhdar.
Where the talukhdar' s interest is of a permanent
character only regarding the duration and not
regarding the rent payable, the zamindar has a
much larger interest than to receive the capitalized
value upon the rent reserved. In this particular
case, the compensation-money was equally divided
between the zamindar and the talukhdar. Dunne
V. Nobo Krishna Mookerjee, I. L. R. 17 Calc. 144,
and Gcdadhar Das v. Dhunput Singh, I. L. R. 7
Calc. 585, referred to. BiR Chunder Manikhya
V. NoBiN Chunder Dutt . 2 C. W. K". 453

19. The mode of ap-
portionment of compensation between landlord
and tenant considered. A. M. Dunne, v. Nobo
Krishna Mookerjee, I. L. R. 17 Calc. 144, and
Godadhar Dass v. Dhunput Singh, I. L. R., 7 Calc.
585, followed. Khetter Kristo Mitter v. Dinen-
dra Narain Roy . . 3 C. W. N, 202

20. Accretion to

parent tenure — Beng. Reg. XI of 1825, s. 4, cl. 1 —
Rate of rent — Apportionment of compensation
atcarded. The words " increase of rent to which
he may be justly liable " contained in cl. 1, s. 4,
Regulation XI of 1825, were not intended to lay
down an inflexible rule applicable to all cases, and
in the absence of any special circumstance the
rate of rent to be assessed upon an accretion
should be in proportion to that paid for the parent
tenure. Where therefore such accreted land is
taken up under the Land Acquisition Act, the
compensation awarded should be divided by giving
the landlord the value of the rent payable in
respect thereof, with 15 per cent, for compulsory

LAND ACQUISITION ACT (X OF 1870)

— contd.

. s. 39 — concld.

sale, and the balance to the tenure -holder. Golam
Ali V. Kali Krishna Thakur, I. L. R. 7 Calc. 479,
commented on. Chooramoni Dey v. Howrah
Mills Company . . I. L. B. 11 Cale. 696

21, Compensation

award of — Frontage and back sites — Parties —
Lessees of such land. Right of, to be joined in suit bij
the owner. The claimant, Kashinath, owned cer-
tain lands, measuring 173,436 square feet, situated
in the city of Poona. This land was originally
devoted to agricultural purposes, and contained
also a number of fruit trees and some buildings, and
was in the form of a square enclosed and surrounded
by houses on all sides except towards the south, on
which side it opened upon a large unoccupied area
of garden land, also belonging to the claimant.
The second and third claimants were the lessees of
Kashinath. The said land was taken up by the
Collector of Poona on behalf of the municipality of
that city for the purposes of erecting a central
market. The claimant having dechned to receive
R 12,880 offered to him as compensation, the Col-
lector referred the matter to the District Judge, who
after deducting 21,532 square feet from the measure-
ment of the whole land for roads, divided the rest,
on the principle of frontage and back sites, in the
proportion of one to three, appraising it at the
average rate of eighteen sales enumerated in certain
sale-deeds at ten annas per square foot, and some
at less than one anna. His award for the land was
R30,674 for the land alone, R2,517 for the materials
of buildings, R400 for trees, and R700 for sever-
ance. The sum total was made subject to R3,000
awarded to the second and third claimants for their
unexpired leases. On appeal by the Collector to
the High Couvt:— Held, that neither the principle
of frontage applied by the District Judge nor the
proportion of one to three for frontage and back
sites was applicable to the claimant's land, which
wa s surrounded on all sides by buildings, which shut
it out from communication with the town, except
by opening a passage of ten feet wide. As there
was no evidence to show that there was any parti-
cular demand for land for building speculation, one
and half annas per square foot was to be regarded
as the adequate value of such a large area as 179,436
square feet, subject to the lessees' compensation
for their interest. The claimant was not entitled
to the award of R700 on account of severance.
The decree was accordingly varied by awarding
R 19,739-2 as compensation for the property, to
which 15 per cent, was to be added, as provided by
s. 42 of the Land Acquisition Act (X of 1870).
Held,aho, that the claim of the claimants Nos. 2 and
3 was not triable in this suit. It was one exclu-
sively between the co-respondents, and properly
fell under s. 39 of the Act. In so far as it was not
objected to its being tried in appeal, they could be
awarded reasonable damages, and Rl,200 was
ample compensation to them. Collector op
Poona v. Kasinath Khasgiwala

I. Ii. B. 10 Bom. 585

( 6289 )

DIGEST OF CASES.

( 6200

LAND ACQUISITION ACT (X OP 1870)

— contd.
ss. 39, 40.

22. ss. 39, ^0— Proceedings under

— Fiiudity. In pioccediugs under the Land Ac-
quisition Act (X of 1870), ss. 38 and 39, the persons
entitled to take land compulsorily deal only with
those who are in possession of it, or who are osten-
sibly its owners. It may happen that the real
owner, being an infant, or a person otherwise under
disability, does not appear, and is not dealt with in
the first instance. There is therefore a proviso in
s. 40 to the effect that nothing contained in that or
the preceding .sections ' ' shall affect the hability of
any person who may receive the whole, or any part
of any compensation awarded under the Act to pay
the same to the person la^vfully entitled tliereto."
This applies only to persons whose rights have not
been dealt with in adjudications in pursuance of
ss. 38, 39, and 40, and does not permit a person
whose claim has been disposed of in the manner
pointed out in the Act to have that claim re-opened,
-and again heard, in another suit. Nn.MONi Singh
Deo Bahadur v. Ram Bandhu Rai

I. L. R. 7 Calc. 388 : 10 C. L. R. 393
L. R. 8 I. A. 90

{Contra) Dwarka Singh v. Solano

22 W. R. 38

23. Settlement of

amount of compensation— Apportionment of com-
pensation, notice of proceedings for — Right of suit to
recover share of compensation. The apportionment
of the compensation under s. 39 of Act X of 1870 is
intended to be a proceeding distinct from tliat of
settling the amount of compensation under the pre-
vious provisions of the Act, and any dispute as to
the apportionment is only decided as between those
persons who are actually before the Court. A
separate notice therefore of the apportionment
proceedings is requisite to bind any person by
those proceedings, and where such a notice has not
been served, any part}^ interested, although served
with notice of the proceedings for setthng the
amount of the compensation, cannot be considered
a party to the proceedings for apportioning it, and
is not barred, by the decision in the latter proceed-
ings, from bringing a suit under the proviso to s. 40,
to recover a share of the money so apportioned.

HURMXITJAN BiBI V. PaDMA LoCHAN DoSS

I. L. R. 12 Calc. 33

24. Power to award

compensation — Judge and assessors sitting together.
There is nothing in Act X of 1870 which gives the
Judge and assessors sitting together power to deter-
mine the right to compensation or the title to the
land for which compensation is to be assessed.
Where therefore the Collector tendered compensa-
tion in respect of land, some of which was above,
and some below, high-water mark, and made an
offer for each separately:— i^eW, that the Judge and
assessors had no power to award the whole sum ten-
dered by the Collector as compensation for the land
above high-water mark ; but they should have
determined what was a proper compensation for
each description of land. In the matter of the peti-
tion of Abdool Ali . 15 ,B. L. R. 197

LAND ACQUISITION ACT (X OF

— contd.

1870)

ss. 39, 40— co»cW.

s.c. Abdool Ali v. Verxer. Verxer v.
Abdool Ali . . 23 W. R. 73 ; 239

25. Question of title— Award of

compensation — Question of title. Where, in a suit for
the recovery of the money awarded by Government
for some land acquired for public purposes, the
Judge, instead of deciding as between the parties in
possession the money value of their respective
rights, determined as between the person in posses-
sion and others whose claims had remained
dormant until the acquisition of the land, the
relative strength of their titles i^-Held, that the
order of the Judge was ultra vires, his duty under
the Land Acquisition Act being to determine the
money value of ascertained interests, and not to
try question of title. GoUR Ram Chunder r.
SoNATUN Doss . . . 25 "W. R. 320

26. Apportionment of

compensation — Question of title. Under s. 39 of the
Land Acquisition Act, it is the duty of the Judge in
apportioning the compensation-money which he is
directed to appoi'tion to decide the question of title
between all persons claiming a share of the money.
Semble — No decision under the Land Acquisition
Act should be treated as res judicata with respect to
the title to the other parts of the property belonging
to persons who may come before the Judge under s.
39. NoBODEEP Chunder Chowdhry v. Boopex-
DRO Lall Roy

I. L. R. 7 Calc. 406 : 9 C. L. R. 117

27. Costs — Judge appointed under

s. S^Power of J wdge to give costs. A Judge
appointed under s. 3 of Act X of 1870 to perform the
functions of a Judge under the said -A.ct generally
within the local limits of the ordinary original juris-
diction of the High Court has no power to award
costs in respect of proceedings under s. 39, Part IV
of the Act. Ramanjem Naidoo c. Kixgiah
N.4IDOO ... 8 Mad. 192

s. 55 (Act VI of 1857, s. 32)—

See Arbitration — Arbitratiox under
Speci.u. Acts and Regulations — Act
VI OF 1857.

See Collector, I. L. R. 16 Mad. 321

. : Part of property

acquired far public purposes — Owner dc'^iring tlial
the whole shall be acquired — Right of ou-mr not con-
fined to small or confined areas— -Convenience of
oumer not the test. The Local Government having
appropriated for public purposes under the Land
Acquisition Act (X of 1870) some of the out -houses
attached to a dwelling-house, and part of the com-
pound in which tiiey were situate, without taking the
hou.se with its other out -houses or appurten-
ances, or the rest of the compound, the owner ob-
jected, under s. 55 of the Act, that the Government
should take the whole of such property or none.
Held, applying to s. 55 the interpretation placed bj'
the Courts in England upon the corresponding

( 6291 )

DIGEST OF CASES.

( 6292 )

LAND ACQUISITIOK" ACT (X OF 1870)

— concld.
s. 55 — concld.

s. 92 of the Land Clauses Cons^olidation Act (8 &
9 Vict., c. 18), that the section was applicable, and
the objection must be allowed. Grosvenor v. Hamp-
stead Junction Railway Company, 26 L. J., N. S.,
Ch. 731 ; Cole v. West London and Crystal Palace
Railway Company, 28 L. J. Ch. 767, and King v.
Wycombe Railway Company, 29 L. J. Ch. 462,
referred to. Held, also, that the rule was not in
England restricted to small, or confined areas, and
that the test was not whether the part appropriated
could be severed from the rest of the property
without inconvenience to the owner. Khairati
Lal v. Secretary of State for India.

I. L. R. 11 All. 378

S. 58 — Award of compensation — E^ect

on award of suit to recover co77ipensation from person
to whom it has been awarded. An award under the
Land Acquisition Act cannot be affected by a suit
to recover from the party to whom compensation
has been awarded and to have plaintiff's title de-
clared to the land concerned. Kaminee Debia v.
Protap Chundek Sandyal . 25 W. R. 103

LAND ACQUISITION ACTS (XVIII OF
1885 AND I OF 1894).

— — — ■ Compensation —

Apportionment of compensation-money — Landlord
and te»ant — Rent fixed in perpetuity — Bengal
Tenancy Act {VIII <f 1SS5), s. -50, subs. (2). In
apportioning compensation-money, awarded under
the Land Acquisition Act, between the landlord
and the tenure-holder, the Court ought to proceed
on the principle of ascertaining what the value
of the interest of the landlord is on the one hand, and
that of the tenant on the other, and to divide the
sum awarded between them in accordance with
these values. WTiere the rent is fixed in per-
petuity, the landlord is not entitled to more than
the capitalized value of his rent. Gordon Sttmrt
arid Co. v. Maharajah Mohatab Chunder Bahadoor,
1 Marsh. 490 ; Raye Kisori Dassee v. Nilcant
Dey, 20 W. R. 370 ; Godadhar Dass v. Dhunput
Sing, I. L. R. 7 Calc. 5So ; Dunne v. Nobo Krishna
Mookerjee, I. L. R. 17 Calc. 144 ; Rajah Khetter
Kristo Mitter v. Kumar Dinendra Narain Ray,
3 C. W. N. 202, and Shama Prosunno Bose
Mozumdar v. Brakoda ; Sundari Dasi, I. L. R. 28
Calc. 146, considered. Dinendra Naraen Roy
V. Tituram Mukekjee (1903)

I. L. R. 30 Calc. 801 : s.c. 7 C. W. N. 810

LAND ACQUISITION ACT (I OF 1894).

See Appeal . I. L. R. 32 Calc. :J21

See Appellate Court — Interference

WITH, AND Power to vary, Order of

Lower Court I. L. R. 30 Calc. 501

See Bombay Civil Cockts Apt, s. 16

I. L. R. 33 Bom. 371

See Bombay City Improvement Act.
I. L. R. 27 Bom. 424

LAND ACQUISITION ACT (I OF 1894)

— contd.

See Calcutta Municipal Act, s. 557
10 C. W. N. 289

See CrviL Procedure Code, 1882, s. 102
10 C. W. N. 991

See Compensation , 9 C. "W. N. 655
I. L. R. 30 Calc. 801
I L. R. 36 Calc. 987

See Contempt of Court — Penal Code,
s. 174 . . 5C. W.N. 131

See Land Acquisition.

I. L. R. 32 Calc. 605

See MuNSiF, Jurisdiction of.

I. L. R. 20 Mad. 155

■ See VaLUATiON of land.

I. L. R. 32 Calc. 343

reference under— appeal — court-

fee-

See Compensation . 8 C. W, N. 671

;See Court Fees Act, Sch. II. Art. 11
8 C. W. N. 321

L - Compensation — Compensation

determination of — Compensation for severance.
Under the provisions of the Land Acquisition
Act (I of 1894), part of an owner's tea garden land
was taken, and by the construction of a railway line
several acres of land to the south of the line were
cut off from the northern portion of the garden,
where the residence of the manager, and all
buildings and offices connected with the manage-
ment, and the coolie lines, were situated. The
line ran through very deep cuttings for a con-
siderable portion of its length of about a mile
and a half, some of which were incapable of being
crossed by coolies employed on either side of the
line of railway. Held, that, in computing the
amount of compensation to be awarded, in
addition to the market value of the land and the
amount allowed for the ' ' standing charges ' ' and
the statutory allowance of 15 per cent., the in-
creased cost of working the garden, in consequence
of the severance of the one portion from the other,
should also be taken into consideration. Baraooka
Tea Company v. Secretary of State for India
(1910) . . . I. L. R. 28 Calc. 685

2. Landlord and

tenant — Patnidar, whether entitled to abatement of
rent and compensation — Proportion — Principal.
Where a portion of a patni is acquired by Govern-
ment under the Land Acquisition Act, the patnidar
is entitled to abatement of rent at the hands of the
zamindar, as the land taken up by Go-rernment is
absolutely lost to the patnidar ; and he is also en-
titled to some share of the compensation-money.
Principle as to the rule of proportion as to abate-
ment of rent and amount of compensation dis-
cussed. Burdwan Raj case, S. D. A. (I860)
336 ; Shama Prosunno Bose Mojumdar v. Brakoda
Sundari Dasi, I. L. R. 28 Calc. 146, dis-

( 0203 )

DIGEST OF CASES.

6294 )

•LAND ACQUISITION ACT (I OF 1894)

— C07itd.

cussed. Bhoba:.i Nath C'iiucKEKBiTTTY V. Land

Acquisition Deputy Collector of Bogra (1902)

7 C. W. N. 130

LAND ACQUISITION

— contd.

ACT (I OF 1894)

Indian Forest Act

(VII of 1S71) — Distinction between the two Acts. —
The most important distinction between the Land
Acquisition Act (I of 1894) and the Indian Forest
Act (VII of 1871) hes in this :— That whereas in the
Land Acquisition Act the Legislature has expressly
constituted the Local Government the sole arbiter
as to what land shall be acquired for a public pur-
pose, the Indian Forest Act gives the power to
afforest subject to conditions as to the fulfilment
of which the Local Government is given no express
power to decide. Balwant Ramchandra v.
Secretary of State (1905)

I. L, R. 29 Bom. 480
Objection — Refer-

ence— Parly — Jurisdiction of Court. A Court has
I no jurisdiction to deal with objections except those
which were made by persons, who were parties to
the proceedings before the Collector and which
brought about the reference. Mahammad Safi v.
Haran Chandra Mukerjee (1908)

12 C W. N. 985

Prabax Chandra Mukherjee v. Peary Mohun
MuKHERJEE (1908) . • 12 C. W. N. 987

L s. 2, Bub-S. ^—Land Acquisi-
tion Act [X of 1870)— Contest before the Collector
— Admission before the Judge—Increased value, s.
25, Act I of 1894. Whilst proceedings under
Act X of 1870 Were pending, the new Act I of
1894 came hito operation. Held, that having
regard to s. 2, sub-s. (2), Act I of 1894, the case
must be governed by the new Act. Balaram
Bhramaratar Bay v. Sham Sunder Narendra, I.
L. B. 23 Calc. 526, followed. Nobin Chunder
Sarma v. Deputy Commissioner of Sylhet
1 C. W. N. 562

2. Award of covi-

pensation — Payment of compensation awarded how

enforced against the Collector — Appeal from an order

irregularly made — Practice — Precedure. On the

16th February 1894, under the Land Acquisition

Act (X of 1870), an award of compensation to the

claimant for land acquired under that Act was made

by the Assistant Judge of Thana, and he subse-

I quently made an order directing the Collector to

\ pay the amount with interest and costs, without,

I however, fixing a date for payment. On the 1st

j March 1894, the new Land AcquLsition Act (I of

I 1894) came into force. On the 26th February 1895,

j the claimant applied to enforce payment of the

, amount awarded, and the then Assistant Judge

(Mr. Knight) re-affirmed the previous order and

j directed the Collector to pay it on or before the

I 20th May 1 896. No payment, however, was made,

! and the matter came before the new Judge (Mr.

FitzMaurice) for final order. He held that neithec

under Act X of 1870 nor the new Act I of 1894

had he any power to enforce payment agaln.-^t

s. 2, subs. 2 — concld.

the Collector, and he therefore dismissed the claim-
ant's application. On apjjeal to the High Court,
the matter was referred to a Full Bench. Helrl, that
the Act X of 1870 prescribed no mode of compelling
payment by the Collector of compensation awarded
under its provisions, but left the persons interested
to a suit to enforce such payment. The proceedings
under that Act were therefore at an end when the
award was made. Iliat being so, there were no
proceedings pending in the case when the new Act
1 of 1894 came into force. CI. 2 of s. 2 of that Act
therefore did not apply, and no further steps could
be taken under that Act. Per Ranade, J. — The
District Judge's order appealed from was impro-
perly made. The Assistant Judges had jurisdic-
tion to make the previous order, and, even, if their
order was not properly made, it could not be set
aside in the way it was done by the District Judge
as if an appeal lay to him from such order. That
order, however, as now held was Avrong, and the
irregularity of the District Judge's order thus led
to no failure of justice, and fell under s. 578 of the
Civil Procedure Code (Act XIV of 1882). Quaere :
A\"hether an award made under the provisions of
Act I of 1894 can be enforced against the Collector
by execution proceedings. Nilk.\nt Ganesh Naik
V. Collector OFiTnANA I. Ij. R. 22 Bom. 802

S. 3 (a) — Fishery rights — " Land '*

— Jurisdiction. The Land Acquisition Deputy Col-
lector of Balasore, on the 3rd March 1903, gave
notice of the intention of Government to acquire
certain fishery rights over land at Chandipore, which
land had previously been acquired by Government
under a declaration, dated 10th February 1896 ; and
the Land Acquisition Judge, on a reference by the
Deputy Collector, awarded a certain sum, as com-
pensation for the acquired fisheries. The claimant
appealed from the decision of the Land Acquisition
Judge, contendmg that the fishery rights being
neither ' ' land ' ' nor ' ' profit arising out of land "
could not be acquired under the Laud Acquisition
Act. Held, allowing the appeal, that incorpoieal
rights cannot be acquired without the land, over
which they are exercised ; that what is to be ac-
quired under the Land Acquisition Act is the aggre-
gate of rights in the land and not merely some sub-
sidiary right, such as fishery rights. Shyam
Chunder Mardraj v. Secretary of State fob
India (1908) . . L L. B. 35 Calc. 525

S. 3, CL (C) — Market value of land

— Collector — Calcutta JJunicipal Act (Bengal Act
III of 1898), s. 557— Land— District— Be-assess-
ment. The object of s. 557, cl. (a) of the Calcutta
Municipal Act, is merely to give an extended defini-
tion of the term " Collector," which is defined in s.
3, cl. (c) of the Land Acquisition Act, or in other
words, in the event of an acquisition of land or
buildings by the Calcutta Municipal authorities,
it is open to, but not obligatory upon, the Chairman
of the Corporation to perform the duties of the Col-
lector. But whether the Chairman of the Corpora

( 6295 )

DIGEST OF CASES.

6296 )

liAWD ACQUISITION ACT (I OF

— coutd.
s. 3, el. (c) — concld.

1894)

tion or any of the other persons mentioned in s. 3.
cl. (c) of Act I of 1894, acts as the Collector, the
acquisition must take place under the Land Ac-
quisition Act. The performance by the Chairman
of the Corporation of the duties of a Collector under
s. 557, cl. {a) of the Calcutta Municipal Act is not a
condition precedent to the applicability of the pro-
visions of the other clauses of the section. The
term " land," as used in s. 557, cl. (rZ), include?
bustee lands. The term " district," as used in the
proviso to s. 557, cl. (d), is equivalent to the term
" ward " under the old Municipal Act, II of 1888.
The term " re-assessment " in s. 557, cl. (d),
signifies " re-valuation " and not the re-imposition
of " rate " or " tax." Where a substantial part
of the act of assessment or valuation was completed
before the commencement of the Act, it cannot be
maintained that there was a re-assessment after
the commencement of the Act, because some ob-
jections to the re-assessment or re-valuation might
have been preferred or disposed of after that date,
although the re-assessment came into force on
the day of the commencement of the Act. Corpora -
tion of Calcutta v. Bhupati Roy Chowdhry, I. L.
R. 26 Cole. 74, referred to. Secretary of State
FOR India v. Belchambers (1905)

I. L. R. 33. Calc. 396
s.e. 10 C. W. N. 289
'- SS. 3 (a), 23 (3)— When land is ac-
quired with trees on it, the. 15 per cent, ought to he
calculated on the value of both. Trees are things
attached to the ' ' earth " and are thus included in
the definition of land in s. 3 (a) of the Land Acquisi-
tion Act ; and this definition must be applied in the
construction of s. 28 of the Act. The value of such
trees as are on the land when the declaration is
made under s. 6 is included in the market value of
the land on which the allowance of 15 per cent, is to
be calculated under s. 23 (2) of the Land Acquisi-
tion Act. Sub-Collector of Godavari i'. Seragan
Stjbbaroyadu (1906) . I. L. R. 30 Mad. 151

s. 6—

See Zanzibar

L, R. 28 I. A. 121

. SS. 6 to 8, 9 (2), 11, 39 to 41, 48

50 (2) — Owner — Land — Notice of inquiry — Govern-
ment, poiver of, to acquire property for a Company
— Land Acquisition Act proceedings by Collector —
Jurisdiction — Collector holding inquiry, whether a
judicial officer — Injunction — High Court, power of,
to question validity of land acquisition proceedings.
The jurisdiction of the Land Acquisition Col-
lector extends, under the Act of 1894, over several
districts, and he has power to hold his sittings
at the office to which he was posted. When provi-
sions of law are clear, it is not competent to Courts
of Justice to enter into questions of natural justice ;
and, having regard to the economy and social
conditions of the country, the provision that the
Government should be the sole judge of what is
likely to prove useful to the public is both expedient

LAND ACQUISITION ACT (I OF 1894)

— -contd.

s. 6 — contd.

and useful. In making an acquisition, the wishes
of the owner of the land are wholly irrelevant under
the Act. There is no definition of a " public
purpose " in the Land Acquisition Act, nor any
limitation regarding what is likely to prove useful
to the public : both matters are left to the absolute
discretion of the Local Government, and it is not
competent for this Court to assume to itself the
jurisdiction to impose restrictions on this discretion
by holding that at an inquiry under s. 40 of the Act
the person whose land is intended to be acquired
should have an opportunity to appear and object.
This is a course wholly contrary to the policy of the
Act. S. 40 of the Act constitutes the Government
custodian of the public interests and sole judge as
to whether the land is required for the construction
of work and whether that work will prove useful
to the public. This Court is not competent to
question the validity of the proceedings under s.
40 of the Act. It is not open to this Court to dis-
cuss the sufficiency of the mquiry made by the
Collector, or his qualifications. The Local Govern-
ment is sole judge. S. 41 of the Land Acc{uisi-
tion Act makes the Government sole judge of the
manner in which the public are to have the use
of the land taken up. A Collector holding an in-
quiry under the Land Acc^uisition Act is not a
judicial officer, nor is the proceeding before him a
judicial proceeding. He acts as the agent of the
Government for the purpose of acquisition, clothed
with certain powers to require the attendance of
persons to make statements relevant to the
matters which he has to inquire into. Durga Dass
Rakhit v. Queen Empress, I. L. R. 27 Calc. 820,
followed. Neither the inquiry nor the proceed-
ings held by the Land Acquisition Collector are
invalid. There is no provision under s. 39 of the
Act that the consent of Government should be
given after the agreement is executed, and that
such consent should be notified by a Resolution in
the Gazette. Ezra r. Secretary of State (1902)
I. L. R. 30 Calc. 36 ; s.e. 7 C. W. N. 249

SS. 6, 11, 12 and AO— Enquiry under

s. 40 — Otuner — Owner of land not entitled to notice
of enquiry as to compensation — Judicial proceeding
— Evidence on which award as to compensation
may be based. The owner of land, which it is pro-
posed to acquire under the Land Acquisition Act
(I of 1894), is not entitled to notice of the enquiry
provided for by s. 40 of the Act, which is in no sense
a htigious proceedings. The subsequent enquiry,
by the Land Acquisition Collector, as to the value
of the land and the amount of compensation to be
paid for its acquisition, resulting in the award, is an
administrative, and not a judicial proceeding ; if the
owner of the land desires a judicial ascertainment of
the value of the land, he can require the matter to
be referred by the Collector to the Court for deter-
mination. In making his award the Collector is not
limited to the evidence taken before him, but is en-
titled to avail himself of information supplied him
without the knowledge of the owner of the land, and

5297

DIGEST OF CASES.

( 6208 )

liAND ACQUISITION ACT (I OF 1894)

— contd.

s. e — concld.

not disclosed at the enquirv. Ezra v. Secretary

01- State for India (1905)1. L. K. 32 Calc. 605

s.e. 9 C. W. N. 454

L. B. 32 I. A. 93

ss. 9, 12, 18 — Notice — Irregularity

LAND ACQUISITION ACT (I OP 1894)

— contd.

— SS. 9, 25 (2)— concld.

in the notice, effect of — Valid award, require-
ments of — Ferry — Compen.sation for a ferry — Rail-
ways Act {IX of 1890) s. 10, siib-s. (2)— -Limitation
Act {XV of 1877), i:ch. II, Art. 120— Damages,
measure of. Where notice under s. 9 of the Land
Acquisition Act does not contain the material facts,
which would enable the landowner to identify the
land intended to be taken up, and where the land
to be acquired is affected with a franchise, the
franchise is not described, and the notice fixes less
than the prescribed time to prefer claims,these being
irregularities, a suit for damages for permanent in-
jury to a ferry caused by acquisition under the Land
Acquisition Act, is maintainable in the Civil Court
notwithstanding an award has been made by the
Deputy Collector, not allowing any compensation
for the ferry, as it was not claimed even after a
special notice. Sub-s. (2) of s. 10 of the Railways
Act does not bar a suit for compensation in the
Civil Court when the Collector refuses to adjudicate
upon the claim put foiward by the owner. A suit
will lie in the Civil Court in respect of claim for
damages which could not be foreseen at the time of
the acquisition proceedings. A suit to recover com-
pensation for land acquired instituted on the refusal
of the Collector to award any compensation under
the Land Acquisition Act, is governed by Art. 120
of Sch. II of the Limitation Act, the right to use
accruing either from the date of the acquisition or
the refusal by the Collector to award compensation.
The mere construction of a railway bridge across a
river whereby the profits of the ferry are reduced,
does not entitle the owner to claim damages ; but
where lands and both banks of the river, which were
used as landing places for the ferry, were acquired
for the purpose of a railwaj- bridge, and the access
to the river and with it the exercise of the franchise
was destroyed, the owner was entitled to compen-
sation. The value of a ferry ought not to be de-
termined by ascertaining the average profits at the
date of the acquisition by regarding it as an in-
variable quantity and by taking a number of years'
purchase. The damages ought to be calcidated on
the basis of the average profits from the ferry.
Rameswar SrxGH v. Secretary of State for
India (1907) . I. L. B. 34 Calc. 470

ss. 9, 25 (2) — Jurisdiction— Co))i-

pensation — Award, ^^■here no claim pursuant to
a notice under s. 9 of the Land Acquisition Act was
made by a party interested to make a claim: — Held,
that the Land Acquisition Judge under s. 25, sub-s.
(2) had no power to make an award for an amount
exceeding that awarded by the Collector, unless the
claimant satisfied him that he had sufiicieut reason

I for refraining from making his claim indue time.

j The Judge should state his reasons for allo%ving such

a person to prefer his claim. Secretary op State
FOR India v. Gobind Lal Bysak (1907)

12 C. W. N. 263

s. 10,

See Complaint — Institftion of Com-
plaint and Necessary Preliminaries
I. li. B. 27 Calc. 985

ss. 11, 18, 31 and 33 — A p port ion me nt

of compensation — Award by Collector, effect of, when
there has been no reference to the Civil Court — Right
of Claimants to bring suit in Civil Court for adiudi-

cation of their claims in such case — Limitation

Construction of Statute — Construction of grant

Hindu widow — Life-interest, amount of compen-ia-
tion due to. As between the claimants inter se
an award by a Collector under s. 11 of the Land
Acquisition Act does not amount to an adjudica-
tion of any question regarding the apportionment
of compensation adjudged under the Act. Any
such question can be determined only by the Civil
Court. Where an award has been 'made by the
Collector, but has not been followed by a reference
to the Civil Court under s. 18 of the Land Acquisi-
tion Act, there has been no adjudication of the
rights of the claimants inter se ; and a claimant who
appeared before the Collector when the award was
made, but yet did not apply for a reference under s.
18 of the Act, can maintain against any person who
may have received the whole or a part of the com-
pensation awarded, a civil suit to establish his own
claims to such compensation under the last proviso
of sub-s {2) of s. 31 of the Land Acquisition Act.
Raja Nilmond Singh v. Ram Bandhu Rai
I. L. R. 7 Calc. 388, foUowed. The provisions of
s. 33 of the Land Acquisition Act show that the
limitation provided by proviso (n), sub-s. (2), of
s. 18 of the Act is not intended to be an absolute
limitation as to time. Punnabati Dai ?•. Pfn-
manund Singh (1903) . . 7 C. W. N. 538

ss. 11, 21 — Market value — Bases of

its calculation — Speculative advance in prices

Recent instances of sale — Rental of lands in the
vicinity — General demand for land — Onus pro-
bandi. Profit from the most advantageous dis-
position of land is one test for determining its
market price. The probable use of land in the most
advantageous way in accordance with the use al-
ready made of neighbouring lands leads to specu-
lative advance in prices to which regard should
be paid. The utility of land is an element for con-
sideration in estimating its value, that is, the utility
which may be calculated by a prudent business maii.
Premchand Burnd v. Collector of Calcutta, I. L. R.
2 Calc. 103 ; Hughly Mills Company v. Secreiari/
of State, unreported ; Secretary of State for Foreign
Affairs v. Cliarles worth. Pilling & Co., L. R. 28
I. A . 121 ; Rajendra Xath Banerjee v. Secretary
of State, I. L. R. 32 Calc. 343, rcfarred to. The
market value of the acquired la.uli is also to be
ascertained from recent instances of sales in the
same or in the adjoining locaUties, and from the

( 6299 )

DIGEST OF CASES,

( 6300 )

liAND ACQUISITION ACT (I OF 1894)

ss. 11, 21 — concldi

average rental of these and similar lands in the
vicinity. S. 21 of the Act authorizes the
judge to confine his enquiry into valuation
to the interests of persons affected by the
Collector's reference, but the section must
mean the admitted interests. If there is any
■dispute as to the relative value of such interest
the Judge should determine the total amount pay-
able for the land leaving the question of apportion-
ment to be decided in a separate proceeding. The
general demand for land and the consequent reflex
action on the prices of all classes of lands, is a factor
in the calculation of the market value of lands under
acquisition. The onus probandi varies according
to the probative value of the Collector's inquiry
under s. 11 of the Act, and if he makes no inquiry
or gives no reasons for his valuation the onus on the
claimant is nominal, and the Special Judge must
decide on the weight of evidence. Fink v. Secre-
tary OF State for India (1907)

I. li. R. 34 Gale. 599

. ss. 12, 18 — Notice by the Collector —

Reference to Courts — Construction of statute — 3{ean-
ing of word ' ' immediately. ' ' The provisions of the
Land Acquisition Act for the compulsory acquire-
ment of private prop3rty are made for the public
benefit, and, in the case of such Acts, " if upon
•words or expressions at all ambiguous it would
seem that the balance of hardship or inconvenience
■would be strongly against the pubhc on the one con-
struction or strongly against a private person on
another construction, it is consistent with all sound
principles to pay regard to that balance of incoa-
venience." Dixon's Case, -5 App. Cos. 827, fol-
lowed. The word ' ' notice ' ' as used in cl. (b) of the
proviso to s. 18 of the Land Acquisition Act, I of
1894, means notice whether immediate or not. The
clause in question prescribes one of two periods of
limitation for a party, who has not accepted the Col-
lector's award, viz., either six weeks from the date
of the receiirt of the Collector's notice, whether im-
mediate or not, or six months from the date of the
award : whichever period shall first expire. Where
a statute or written contract provides that a certain
thin" shall be done ' ' immediately ' ' regard must be
had,''in construing that word, to the object of the
statute or contract, as the case may be, to the posi-
tion of the parties, and to the purpose for which
the Legislature or the parties to the contract intend
that it shall be clone immediately. The conditions
prescribed by s. 18 of the Act are the conditions
to which the power of the Collector to make the
reference is subject, and these conditions must be
fulfilled before the Court can have jurisdiction to
-entertain the reference. Dixon v. Caledonian Rail-
way Co., 0 App. Cos. 827, referred to. Christie v.
Richardson, 10 M. & W. 688, Raleigh v. Atkinson,
6 M. & W. (>77 and In re the application of Shesham-
ma, I. L. R. 12 Bom. 276, followed. In re Nantt
KoTHABE (1905) . . I. L. R. 30 Bom. 275

___— ss. 12, 18, 31, 53— Civil Procedure

Code, 1882, ss. 102, 103 — Apportionment — Reference

LAND ACQUISITION ACT (I OF 1894)

— contd.

ss. 12, 18, 31, 53— concld.

to Court — Dismissal for default — Fresh suit, if
maintainable---Rights of penons, not parties to the
reference — Construction of Statute — Special juris-
diction. Certain persons, who were parties in a
land acquisition proceeding, being dissatisfied with
the apportionment of the compensation-money
made by the Collector, obtained a reference to the
Court under s. 18 of the Land Acquisition Act, but
as they did not appear at the hearing of the same
it was struck off. Held, that a suit instituted by
the same persons in the Civil Court for the appor-
tionment of the compensation- mo :iey was barred
by ss. 102 and 103, Civil Procedure Code, which
apply to proceedings before the Court to which a
reference is made under s. 18 of the Land Acquisi-
tion Act, owing to the operation of s. 6i7, Civil
Procedure Code, which is made applicable to
such proceedings by s. 53 of the Land Acquisition
Act. Persons, who were not parties in the land
acquisition proceeding, were not debarred from
instituting a suit for apportionme it in the Civil
Court. Stephex, J. — Quaere : Whether persons,-
who were before the Collector, but not before the
Court to which a reference was made under s. 18,
Land Acquisition Act, would be debarred from in-
stituting such a suit. Mukerjee, ./. — An objec-
tion, as to the measurement of the land or the
amount of the compensation payable therefor, must
be determined exclusively by a reference to the
Civil Court under s. 18, cl. (1) of the Land Acquisi-
tion Act. But a c^uestion as to the persons to
whom compensation is payable or its apportion-
ment among the persons interested may be de-
termined either under a reference as contemplated
by s. 18, cl. (1) of the Act or by suit at the instance
of persons lawfully entitled to it as against another,
who has drawn the compe:isation-money. When,
however, a party, has once availed himself of a re-
ference to the Court under s. 18, Land Acquisition
Act, he cannot again ask for an opportunity to
litigate the same matter in the ordinary Court.
Sri. Punnabati Dcii v. Padmanand Singh, 7 C. W. N.
533 ; Raja Nilmoni Singh v. Ram Bandhu Rai, I. L.
R. 7 Calc. 288, 3)3 ; Hurmut Jan Bibi v. Padma
Lochun, I. L. R. 12 Calc. 33, referred to. Bhandi
Singh u. PvAmadhin Roy (1905) 10 C, W. N. 991

ss. 12, 18, 4iQ— Award — Compul-

sory acquisition of buildings — Buildings adjacent
and structurally connected — Onus on public body.
When a pubUc body seeks, under the Land Acquisi-
tion Act, to acquire any portion of a block of build-
ings, which is structurally connected with the main
block, the onus is on that body to show that the
portion is not ' ' reasonably required for the full and
unimpaired use of the house." Venkataeatnam
Naidu v. The Collector of Godavari (190i)

I. L. R. 27 Mad, 350

2. Compensation —

Principle of assessment — Market value — Annual
value of produce. In assessing compensation for
lands acquired under the Land Acquisition Act

( 6301

DIGEST OF CASES.

( 6302 )

LAND ACQUISITION ACT (I OF 1894)

—conkl.

89. 12, 18, 49— <o/tcW.

where the letting value of the lands is not ascertain-
able and the selhng value of lands in the neighbour-
hood does not afford a reliable guide, the best course
is to ascertain what is the annual value of the pro-
•duce of the land is question and to proceed on that
basis. Ram Sahoy Shah v. The Secretary of
State for India (1904) . . 8 C. W. N. 671

s. 16.

See Mortgage 13 C. W. N. 350 ; 357

18 — Aivard — Rejerence— Locus \

standi to ask far reference on the ground of insuffi-
ciency of amount awarded — Interest in kind, if ne-
cessary— Person interested — Decision of Collector,
power of Court of Reference to question— Interlocu-
tory order — Appeal. Some land in which one B
owned a mourasi mukurari tenant's interest was ac-
quired by Government. Previous to the declara-
tion of the acquisition, one G had entered into a
•contract with B. Notice of the acquisition under
s. 9 of the Act was served, amongst others, on G.
G alone appeared before the Collector and, on the
.award being made, apphed for a reference under
s. 18 on the ground that the amount awarded was
insufficient. The Collector made the order asked
for. Up till the date of the declaration no con-
veyance of B\s interest in the land had passed in
-favour of G. But some time after the award and
the order of reference, B purported to convey all
the interest he could claim on account of the land
to G. The Land Acquisition Judge held that under
the circumstances G had no locus standi to contest
the sufficiency of the award. Held, that no ques-
tion of apportionment having arisen, the question
whether G had an interest such as would entitle
him to any portion of the compensation-money
was a matter foreign to the proceeding at that stage.
I The fact that G had claimed an interest in the com-
j pensation- money and the Collector had thought
1 that he wa.s a person, who could come in as claiming
an interest, was sufficient to entitle him to ask for a
reference and to appear in support of it. The order
of the Land Acquisition Judge deciding that G had
no locus standi to contest the sufficiency of the
award was passed on a petition of objection pre-
ferred on behalf of the Government. But the final
order confirming the award was made on a subse-
quent date. Both orders having been appealed
against : — Held, that no appeal against the previous
order was necessary, nor did an appeal lie from an
ft-rlocutory order of its nature. Galstadn v.

' RETARY OF StATE FOR InDIA (1905)

10 C. W. N. 195

A ward — A pplica-

tion for reference to the Civil Court — Collector's order,
refusing — -Jxidicial order — High Court's power to
revise. In rejecting an apphcation made under s.
18, cl. (i) of the Land Acquisition Act, asking for
a reference to the Civil Court, the Collector acts
judicially, and his order is subject to revision by
the High Court. Ezra v. Secretary of State, 9 C. W.

LAND ACQUISITION ACT (I OF 1894)
— contd.

s. 18— concW.

N.454,s.c. I. L. R. 32 Calc. 60'), referred to.
Administrator-General of Bengal »•. Lasd
Acquisition Collector (190.5) 12 C. W. N. 241

3. ■ Compensation —

Mode of valuation when no recent sales — Market
value — Surveyor's opinions — Objection's to Surveyor's
reports — Determination of value of fronkige land —
Building frontage, how determined — Relative value of
hack land and frontage — Hypothetical building
scheme, value of — Value of whole land, how derived
from value of part — Collector's awird. In cases
where the valuation of land cannot be based on
what the property wa-s producing at the time of the
notice of acquisition, and where there have been
no recent sales of the land to guide the Court,
the market value must be determined by
sales of similar land in the neighbourhood. The
owner in claiming compensation can seek to prove
either what the property would fetch if sold in one
block, or what is the present value if he plotted out
the property and sold it in lots. Where no evidence
has been adduced of sales in the neighbourhood of
such a large block of land as the one under reference
the evidence before the Court of sales of small
pieces of land in the neighbourhood enables the
Court to give an opinion regarding the values of
different portions of the block, and the value of
the whole must be deduced from these. In addition
to the evidence of sales the Court can be guided by
the opinions of surveyors. It is necessary, however,
to distinguish opinion from argument. The prac-
tice which has grown up m references under the
Land Acquisition Act, 1894, of surveyors making
long reports and furnishing copies to the opposite
side beforehand is open to grave objection. A sur-
veyor's opinion by itself is good evidence, \\1ien
determining the value of frontage land the depth is
a question of supreme importance. What is a
suitable depth must primarily depend on the char-
acter of the buildings in the locahty. It cannot be
too clearly laid down that under ordinary circum-
stances the value of an income producing property
depends on its income irrespective of its co.st ; and
that capital when once invested in land and build-
ings cannot be apportioned between them so as to
"ive the market value of each. It cannot be taken
as a hard-and-fast rule that back land must be worth
half the frontage land. Per Curiam : — " Evidence
of hypothetical building schemes is irrevalent to
the question of finding the market value of land.
The belief that an hypothetical scheme can be a
guide to market values ascertained by other means
^ equally falacious." The Court would be slow
to ditier from the Collector's offer on a matter of
a few rupees except for very strong reasons such as
an error on a question of principle. la the matter
o/ Karim Tar Mahomed (1908).

I. li. B. 33 Bom. 325

4. S. 18 (2)— Reference by Collcttor—

Grounds of objection — Additional grounds urged
before Court — Issues. S. 18, sub-s. (2) of the
Land Acquisition Act requires that any per^n

( 6303 )

DIGEST OF CASES.

( 6304 )

LAUD ACQUISITION ACT (I OF 1894)

— contd-

8, 18 (2)—concld.

interested who has not accepted the CoUector's
award and requires the Collector to make a reference
to the Court " shall state the grounds on which
objection to the award is taken." Such require-
ment is one of the conditions precedent to the ol>-
ligation of the Collector to make the reference.
Held, that, as s. 147 of the Civil Procedure Code ap-
plied, the claimant at the hearing is not confined
to the grounds set out in his notice. Held, further,
that he is entitled to advance claims in respect of
portions of the land taken up not referred to in his
notice. /» re Rustomji Ji.tibhai (1005).

I. L. B. 30 Bom. 341

SS. 18, 20, 21 — Comjmmiiion —

A fportionment — Reference to Court — Objection taken
before Coiirt by party who had raised no objection
before Collector. In a proceeding under the Land
Acquisition Act, a party who had raised no objec-
tion to the apportionment of compensation made
by the Collector must be taken to have accepted
the award in that respect. Under ss. 18, 20 and 21
of the Land Acquisition Act all that the Court can
deal with is the objection which has been referred
to it ; it cannot go into a question raised for the
first time by a party who had not referred any
question or raised any objection to it under s. 18
of the Act. Abu Bakar v. Peary Mohon Mukkh-
JBB (1907) . . . I. L. B. 34 Calc. 451

2. Reference to

Special Judge — Scope of enquiry — Parties, addition
of, after reference — Contesting award on matters out-
side the referen.ce — Hindu Law — Debutter, conver-
sion of, into secular property — Consensus of
family — Real or nominal debutter — Test dealings
with jrroperty — Release by Government, effect of —
iShebaiti right, alienation of, to co-shebait — Validity
— Idol, breakage of — Effect. In a reference under s.
18 of the Land Acquisition Act, it is not open to the
Special Judge to go into questions raised by parties,
who did not object to the award and apply for a re-
ference. Where the reference under s. 18 related
to a dispute regarding apportionment between
parties A and B : Held, that the Special Judge was
wrong in allowing parties C and D to be added on
their own application and contest the award on a
ground not raised in the reference. Abu Bakar v.
Peary Mohun Mookerjce, I. L. R. 34 Calc. 451.
GoBiNDA Ktjmar PvOY Chowdhmhv v. Dabendra
Kumar Hoy Chowdiiury ( 1007) 12 C. W. N. 98

SB. 18, 30, 31, 32— Jurisdiction of

District Judge to order refund of money paid by
Collector .under s. 31 — Civil Procedure Code {Act
XI y of 1882), s. 622. A District Judge has no
jurisdiction to order a refund of money paid by a
Collector under the Land Acquisition Act without
any irregularity apparent at the time and without
any order from the Civil Court, and an ii|)pli(aUon
under a. G22 of the Civil Procedure Code against liis
order lies. It is open to doubt whether s. 18 of the
Land Acquisition Act, which deals inter alia with
objections a.s to the persons, to whom compensation

LAND ACQUISITION ACT (I OF 1894>.

—contd.
88. 18, 30, 31, 32— conc/d.

is payable, or s. 30, which deals with disputes as
to the person, to whom compensation is payable,
can have any application after the money has
actually been paid away under s. 31 (2). Gobni-
daranee Dassee v. Brinda Ranek Dasee (1908).
I. L. B. 35 Calc. 1104
s.e. 12 C. W. N. 1039

SS. 18, 50 — Land Acquisition Act (I of

18i4), sees. 18, 60— Reference before Judge-
Parties, when acquisition for Corporation — Appeal
by Corporation, if lies — Secretary of State for India
in Council, if nece.'^sary party. A company or cor-
poration for whose benefit any land may be ac-
quired by the Collector is not a necessary party in a
land acquisition proceeding. S. 50 of the Land Ac-
quisition Act allows such company or corporation
to appear simply for the purpose of watching the
proceedings or assisting the Secretary of State.
Such a company or corporation has no power to
ask for a reference under s. 18 of the Act, nor has
it the right to appeal against the decree made upon
a reference. Municipal Corporation of Pab\a r:
Jogkxdra Narain Raikut (1908)

13 C. W. N. 116

SB. 19, 23 — Market value — Proof —

Onus — Omission of Collector to state grounds —
Effect — Calcutta Municipal Act (Beng. Ill of
1889), s. 557 — Bustee kind — Valuation on the basis
of best use, if permissible — Special Judge — Juris-
diction to assess compensation ouViide the limits of
the declaration. The methods of valuation of land
acquired under Act I of 1894 may bo classified
under three heads : (i) The opinion of valuators or
experts, (ii) the price paid within a reasonable time
in bond fide transactions of purchase of the lands ac-
quired or the lands adjacent to the land acquired
and possessing .similar advantages, and (iii) a number
of year's purchase of the actual or immediately
prospective profits from the lands acquired. It is
generally necessary to take two or all of these
methods of valuation in order to arrive at a fairly
correct valuation. Exact valuation is practically
impossible, the approximate market value is all that
can be aimed at. Much rehance cannot be placed
on the evidence of experts unless it is supported by
or coincides with other evidence. The burden of
proof is ordinarily on the claimant in the Court of
the Special Judge to prove that the valuation made
by the Collector is insufficient. But the burden
must vary according to the nature of the enquiry
made by the Collector. If no evidence has been
taken by the Collector, and if no reasons have been
given in his decision to sujiport his conclusion the
claimant has a vci y light burden to discharge. The
ipse dixit of a Collector lias very little weight and is
not primd facie evidence of the correctness of his
award. The failure of the Collector in making a
reference under s. 18 of the Land Acquisition Act
to state the grounds on which the amount of com-
pensation was determined as required by s. 19, cl.
(rf), makes it incumbent on the Collector to justify •

{ 6305 )

DIGEST OF CASES.

{ 6306 )

lAND ACQUISITION" ACT (I OP 1894)

— contd.

s. 19 — concld.

the award before the Special Judge. S. 557 of the
Calcutta Municipal Act precludes any valuation
based on the most advantageous disposition of land,
e.g., a valuation of bustee land on the supposition
of its adaptability for use as building land to carry
expensive structures which is the most advanta-
geous use to which land can be put in Calcutta.
Both the Collector and the Special Judge under Act
I of 1894 have limited jurisdiction. They are bound
by the official declaration in the local Gazette. The
Collector cannot acquire or give possession of any
land beyond the boundaries given in the declaration.
If he does so he commits an act of trespass. He
has to find out the precise quantity of land notified
for acquisition within specified boundaries. Value
the same under the provisions of the Act, and give
possession accordingly. The Special Judge has to
make similar enquiries. If the Local Govern-
ment committed a mistake by giving an erro-
neous boundary, the Judge or Collector cannot
■cure the mistake. If the land acquired be for
Government purposes, and if the Government takes
possession of land beyond the limits prescribed by
the declaration or in excess of the area for which
compensation is paid, it trespasses on private land
and is liable under the law of the country ; and so is
A company if the acquisition is for its purposes.
But such excess land cannot be valued and compen-
sation awarded for it under the provisions of the
Act. Harish Chandra Neogy v. The Secretary
OF State for India (1907) . 11 C. W. M". 875

SS. 19 (d) and 23 — Level-crossing across

a private road. A person is entitled to compensa-
tion, under clause fourthly of s. 23 of the Land
Acquisition Act, in respect of a Railway Company
having made the ' ' level-crossing " across his
private road giving access to his house, if he can
show that he sustained damage or loss by reason of
his other property having been injuriously allected.
Glover v. The North Staffordshire Railway Ceiiipany,
16 Ad. <Ss El. Q. B. R.Neio Series 912 ; the Metro-
politan Board of Works v. McCarthy, 7 H. L., E.
<& 1. App. 243, referred to. A Collector, in making
a reference to the Civil Court, should state the
grounds on which the amount of compensation was
determined. Madhusudan Das v. Collector op
Cdttack(1901) . . . 6C. W.N". 406

SS. 20, 21.

See ante., s. 18.

1. — 8. 23 — Acquisition of land

*' injuriously affecting other property " —

Compensation — Right to compensation for loss of a
ferry by reason of acquisition of adjacent land —
Land Clauses Consolidation Act {S Vict., c. 18), s.
63. The word "acquisition," as used in s. 23
of the Land Acquisition Act, includes the
purpose " for which the land is taken as
weU as the actual taking. And the words ' " at
the time " in cl. 4 of the same section must

VOL. III.

LAND ACQUISITION" ACT (I OF 1894)

— Contd.

s. 23— contd.

bo taken to mean the time when the damage
takes place and the right to compensation arises.
London and Brightoii Railway Company v. Triuivm,
L. R. 11 App. Cas. 45 ; Hopkins v. Great Northern
Railway Company, L. R. 2 Q. B. D. 224 : 46 L. J.
{Q. B.) 26-5 ; Ricket v. Metropolitan Railway Com-
pany, L. R. 2 E. & I. A. 17-j ; and Cowper Essex
V. Acton Local Board, L. R. 14 App. Cas. lo3,
referred to. The District Board of Dinagepore
erected a bridge over the river Tulai, in consequence
of the erection of which a ferry, which was within
100 cubits of the bridge and owned by the Mahara-
jah of Dinagepore, who was also the owner of the
land taken for the construction of the bridge, ceased
to exist. Held, that the owner of the ferry was
entitled under the Land Acquisition Act to com-
pensation for the loss of the ferry. Collector of
Dinagepore v. Girja Nath Roy

I. li. R. 25 Calc. 346

2. Person interested — Lait-l Ac-

quisition Act {1 of 1894), SS. 3, cl. (b), and 23 — Lessee
of a tank with right of fishery, whether entitled to com-
pensation. For the purposes of the Land Acquisition
Act, a lessee of a tank is in the same position
as a yearly tenant of agricultural land. He is a
" person interested," within the meaning of s.
23 of that Act, and is entitled to compensation.
Narain Chandra Boral v. Secretary of State
for India (1900) . I. L. R. 28 Calc. 152

s.c. 5 C. W. N". 349

ss. 23, els. 3 and 4, and 48—

Acquisition of portion rendering rcmnituUr useless
— Compensation — Injurious-affection — Severance —
Homestead land^'' House." Where a portion of a
holding used f6r residential purposes was acquired
by Government, and it was found that the remain-
ing portion was thereby rendered useless for such
purposes,— i/eW, that it was of very little import-
ance whether the whole holding formed a ' ' house
within s. 49 of the Land Acquisition Act, so as
to render it obligatory on Government to acciuire
the whole of it, inasmuch as compensation to the
extent of the value of the entire holding would
have to be paid owing to damages cau,sed by
severance and to the property l)cing mjunously
affected by the acquisition. Sarat Chandha Bose

V. SeCRET.\RY O^ ST.4.TE fob 1M)L\ ( I'HU)

Parties bound by

decision as to right to claim compensation — Res
judicata. An adjudication as to the right of persons
claiming compensation under the Land Acquisition
Act (I of 1894) concludes the question between the
same parties in subsequent proceedings. Mohadoe
V Neekimani, L L. R. 20 Mad. 2ii9, distinguished.

ChOWAKARAN JUKKI v. VaYYAFRATH KlNHI

Kua?i Ali (1905) . I. L R. 29 Mad. 173

5 «* Market value of land "

T^Iethods of assessing the market value — Correct

methods laid dowiv—City of Bombay Improvement

9 p

( 6307 )

DIGEST OF CASES.

ACT (I OF 1894)

LAND ACQUISITION

— contd.

s. 23— contd.

Act {Bom. Act IV of 1898)— Valuation by Collector
— Acquisition of interest by claimant after Collector's
award — References to the Tribunal of Appeal —
Consolidation of references. The Government of
Bombay, acting on behalf of the Improvement
Trustees, under the Cit}' of Bombay Improve-
ment Act (Bombay Act IV of 1898), notified for ac-
quisition nine parcels of land in December 1898.
At the date of the notification, J the owner of the
parcels, was in unencumbered possession of only
one of them ; and the remaining parcels were let
on permanent leases as building sites. Between the
dates of notification and acquisition, J bought out
the interests of the tenant in one of the parcels.
The situation of the land was such that the whole
plot consisting of the nine parcels was capable of
forming a valuable quarry. The Collector in
assessing compensation dealt with all the parcels
separately ; and refused compensation on a quarry-
ing basis. As regards the seven parcels, the award
was arrived at on a rental basis. In all nine eases,
references were claimed and made to the Tribunal
of Appeal constituted under section 48 of the City of
Bombay Improvement Act (Bombay Act IV of
1898). After the Collector had made his award
and before the references were heard, J bought out
the tenants' rights in the seven parcels. J next
applied to the Tribunal of Appeal for consolidation
of the references into one : this was allowed. The
Tribunal of Appeal allowed J's claim for com-
pensation for the whole land on a quarrying basis.
On appeal, it was objected that the consolidation
was A^Tongly allowed, for J was thereby permitted
to advance a claim — namely the claim to the
quarrying value — which otherwise he would not
have been able to make : — Held, that the consoli-
dation was rightly allowed and had not the effect
which was contended for. It was not by reason
of the consolidation of references that J was
enabled to put forward what might be called
the quarrying claim : that claim was aheady
before the Collector and the Tribunal, and,
whether good or bad, had to be decided on
quite other grounds than the arbitrary division of
the land made by the Collector. Held, further, that
compensation should not be assessed on a quarriable
basis, for the land was never a marketable quarny at
the material time, and did not become so till after
the Collector had made his award. Per Batchelok,
J. — For the purposes of ascertaining the market
value of land under section 23 of the Land Acquisi-
tion Act (I of 1894), the Court must proceed upon
the assumption that it is the particular piece of
land in question that has to be valued including all
interests in it. Collector of Belgcntm v. Bhimrao, 10
Bom,. L. R. (')')!, followed. The method contem-
plated by the Land Acquisition Act (I of 1894) for
assessing compensation is that of ascertaining first
the market value of the land as if all separate in-
terests combined to sell ; and then of apportioning
that value among the persons interested. The
" market value of the land " means the price

ACT (I OF 1894>

LAND ACQUISITION

— contd.

— ■ s. 23— contd.

which would be obtainable in the market for a con-
crete parcel of land with its particular advantages
and its particular drawbacks, both advantages
and drawbacks being estimated rather with re-
ference to commercial value than with reference to
any abstract legal rights. Per He aton, J . : — Taking
the scope of the Land Acquisition Act (I of 1894)
and its words, it seems that in ascertaining com-
pensation for land taken up neither the method of
valuing each interest in it separately nor the method
of valuing the land as a whole and then apportion-
ing to each person interested the share to which
he is entitled, is excluded. What is intended is a
fair and reasonable estimate of the compensation
to be awarded : and this is to be arrived at by tak-
ing into consideration certain specified matters and
excluding from consideration others. The Act
seems to leave a great deal to the discretion of the
Collector and the Court, and amongst other matters,
to leave it to their discretion to ascertain the mar-
ket value of the land by either of the two methods.
This opinion does not conflict with what was de-
cided in Collector of Belgaum v. Bhimrao. 10 Bom.
L. R. 657. Bombay Improvement Trusti v.
Jalbhoy (1909). . I. L. B. 33 Bom. 483

Valuation of land

as building land — -Value of trees, as standing trees,
if may be claimed — Inconsistency of claims — Trees
to be valued as cut timber. Where a person whose
land was acquired under the Land Acquisition Act
asked the same to be valued as vacant land to be
used for the purpose of erecting buildings, he could
not at the same time claim the value of the trees
on it, on the footing that they would still remain
there — the claims being inconsistent. The proper
value of the trees would be their- value as timber
after they have been cut down. The Secretary
OF State for India v. Duma Lal Shaw (1909)
13 C. W. N. 487

7. Land Acqttist'-

tion Act (I of 189-!), ss. 23, 24^—'' Market value "
of land — Special adaptability to the purpose of the
acquisition if to be considered — Land acquired for
rifle range — Land behind the butts, depreciation of —
Injurious affectioti. The meaning of " market
value ' ' discussed by Doss, J. Per Doss, J. —
In estimating the market value of land the purpose
for which the land is taken should not be taken into
consideration. The special though natural adop-
tability of the land for the purpose for which it is
taken is, however, an important element to be
taken into consideration in determining the market
value. But it is only the possibility of the site
going into the market as being required for the
purpose and not the realised possibility that must
form the basis of calculation. In re Gough and
Aspatria, Silloth v. District Joint Water Board,
[1904] 1 K. B. 417 ; In re Lugas and Chester-
field Gas and Water Board, [1908] 1 K. B. 571,
reUed on : — Held, by Doss, J. (Richardson,
J., contra) — That there being no other land in the

( 6309 )

DIGEST OF CASES,

( 6310 )

LAND ACQUISITION ACT (I OP 1894)

— contd-

— s. 23 — concld.

vicinity of the Lebong Cantonment suitable for a
rifle range for which purpose the land in question
had been acquired the special (or rather the unique)
adaptabiUty of the land for the purpose was an ele-
ment to be considered in valuing the land. Per
Richardson, J. — There being no demand for rifle
ranges in the market, such a claim was opposed to
s. 24, cl. (5) of the Land Acquisition Act and to
the decision in Manvuitha Nath Mitter v. Secretary
of State for India, 1 C. W. N. 698 : s. c. I. L. R.
25 Calc. 19 1; L. R. 24 I. A., 177. PerCuriajn
— In so far as it could be reasonably anticipated
that the rifle range would interfere with the work-
ing of the owner's land behind the butts as a tea
garden, to that extent the value of such land be-
came depreciated, and the owner was entitled to
compensation for it and it was no answer to his
claim to say that any injury that may be caused
in future by the use of the acquired land as a rifle
range will be actionable. Gowper Essex v. The
Local Board for Acton, L. R. 14 App. Cas. 153,
R. H. Wernicke v. The Secretary of State for
India (1909) . . 13 C. W. N. 1046

s. 24—

See ante, s. 23.
_ s. 25—

iSee ante, a.

■ Objection to amount of

compensation before Collector — Withdrawal of objec-
tion on appeal — Right to increased amount given
on appeal. Where a claimant objected to the
amount of compensation offered by the Collector,
but withdrew his objection before the District Judge
who, however, allowed an increased amount at the
instance of other objectors. Held, that under s. 25,
Act I of 1894, the former did not disentitle himself
from claiming the benefit of the mcreased amount
awarded by the Judge. Nabin Chander Sarma v.
Deputy Commissioner of Sylhet

1 C. W. N. 562

SS. 25, 27, 54 — Appeal lies against

an avmrd of costs under s. 2-5 — S. 27 does not allow
a pleader's fee to be fixed arbitrarily — Fees to be
allowed on the valuation as laid down in the Civil
Rules of Practice or according to the rules applicable
to the particular Court. Undei s. 25 of the Land Ac-
quisition Act, an award of costs is a part of the
award and is appealable as such under s. 54 of the
Act. S. 27 does not authorise the Court to allow
any amount for the pleader's fee at its discretion.
Where the subject-matter is capable of being valued
pleader's fees must be allowed on the scale laid
down in the Civil Rules of Practice or on such other
Bcale as may be in force for the particular Court.
Ekambara Gramany v. Muniswamy Gramany
(1907) . . I. L. R. 31 Mad. 328

s. 30 — Lands waste from time

immemorial taken up — Compensation awarded —

liATSTD ACQUISITION ACT (I OP 1894)

— contd.

8. 20— concld.

Amount claimed by mirasidars and shrotriemdars —
Persons entitled. Certain lands which had been waste
from time immemorial were taken up by Govern-
ment, and compensation was awarded. Claims
were made by the mirasidars for the amount so
awarded. The rights of the Government in the
lands had been alienated by Government to certain
shrotriemdars, who also claimed to be entitled to the
amount awarded as compensation. Held, that the
shrotriemdars were entitled. Sivan tha Naicken v.
Nattu Ranga Chari (1902)

;l. L. R. 26 Mad. 371

[ss. 30 and 53— Civil Procedure Code,

s. 32 — Parties— Reference by Collector as to ap-
portionment of comjiensation — Addition by Judge
of party to reference. Where, under s. 30 of the
Land Acquisition Act, 1894, the Collector has re-
ferred to the District Judge a dispute as to the ap-
portionment of compensation settled under s. 11
of the Act, it is not idtra vires of the District Judge
to add a party to the proceedings before him, having
regard to s. 53 of the Act and s. 32 of the Code of
Civil Procedure. Kishan Chand v. .Jagannath
Prasad (1902) . . . I. L. R. 25 All. 133

SS. 30, 53, 54r—

See R eference to Civil Court.

11 C. W. N. 430

s. 31—

See ante, ss. 11, 18, 31 and 33.

SS. 31 and 32 — Land taken up for

public purposes, such land being in possession of
Hindu widow holding in right of her deceased husband
— How compensation in respect of such land should be
allotted. W'here land which was taken up by the
Government under the Land Acquisition Act for
public purposes was held at the time by two widows
holding the usual Hindu widow's life estate therein,
it was held that the compensation awarded for such
land should not be paid over to the widows, but
should be invested in land to be held on similar
terms. Sheoratan Rai v. Mohri, All. Weekly Xotr.'i,
(1899) p. 96, followed. Shed Prasad Singh v.
JaleHa KuNw.iR (1901) . I. L. R. 24 AIL 189

s. 32—

1. _ Person having "no

power to alienate" — Money awarded as compensation
— Claim by karnavan of tarivad. The Government
acquired, under the Land Acqukition Act, property
belonging to a Mahomedan family in North Malabar
governed by the Marumakatayam law, and the
money awarded as compensation was deposited
in Court under cl. 2 of s. 31 of the Act. On claims
being made to this amount : — Held, that, inasmuch
as the tarwad had power to alienate the land in
respect of which the compensation had been

9 p 2

( 6311 )

DIGEST OF CASES.

( 6312 )

LAND ACQUISITION ACT (I OF 1894)
— contd.

s. 32— cone '(Z.

aAvarded, s. 32 of the Land Acquisition Act did not
apply, and an order directing it to be dealt with
in accordance with the provisions of that section
was wrong. Mahomed Ali Raja Avergal v.
Ahammed Ali Raja Avergal (1902)

I. LB. 26 Mad. 287

2.— Compensation money

paid to Hindu loidoiv— Reversioner's application for
reference — Order by Judge on reference directing

refund Appeal — Revision — Civil Procedure Code

{Act XIV of 1882), s. 622. Where a Land Ac-
quisition Collector having awarded a certain sum
as compensation for land acquired, paid it to,
amongst others, a Hindu widow, and almost six
months after the award her daughter asked for a
reference to the Civil Court, and a reference having
been made, the Judge ordered the lady to repay the
amount withdrawn by her and the same to be dealt
with according to the provisions of s. 32 of the Land
Acquisition Act : — Held, that until money was de-
posited in Court by the Collector, the Court could
not proceed to deal with it under s. 32. That the
Judge had no power to direct a refund of money
already paid by the Collector. That the order was
not one under s. 32 of the Land Acquisition Act, as
the Jud^e was not in a position to make such
an order and so no appeal lay from it and the High
Court could properly interfere under s. 622 of the
Ci^'il Procedure Code. Gobindo Rani Dassi v.
Brinda RAi^i Dassi (1908)

I. L. K. 35 Cale. 1104
s. c. 12 C. W. N. 1039

. ss. 32, 33, 54:— Order— Order direct-
ing refund of compensation money paid — Civil
Procedure Code {Act XIV of 1882), ss. 254, 588,
e4) — Execution, mode of — Order directing pay-
ment of money. An order made by a Court in a
proceeding under the Land Acquisition Act, direct-
ino- a party, to whom a sum of money,'awarded as
compensation under the Act had been paid under a
previous order, to refund the money, is not an
award or a portion of an award within the meaning
of s. 54 of the Act, nor does it come under any
of the orders mentioned in s. 588 of the Civil Pro-
cedure Code. No appeal therefore lies from such an
order. Sheo Rattan Roy v. Mohri, I. L. R. 21 All:
354 ; Muhammad Ali Raja Avergal v. Ahammed
Ali Raja Avergal, I. L. R. 26 Mad. 287, distin-
guished. The order directing a refund may be en-
forced by the imprisonment of the party against
whom it is made or by the attachment and sale of
his property under ss. 254 and 649 of the Civil
Procedure Code. Nobin Kali Debi v. Banalata
Debi (1905) . . I. li. R. 32 Calc. 921

LAND ACQUISITION ACT (I OF 1894)

— concld.

s. 49 — " House, manufactory or build-

s. 33

ing " — Acquisition of part only required — Whether
whole must he purchased. Land, which is not a
house, manufactory or building in the Uteral sense
and which is not reasonably required for the full
and unimpaired use of a house, manufactory or
building cannot be considered as part of the ' ' house,
manufactory or building " within the meaning of
s. 49 of Act I of 1894. Whether or not the land is
so reasonably required is a question of fact depend-
ing upon the particular circumstances of each case.
Khairati Lai v. Secretary of State for India in
Council, I. L. R. 11 All. 378, distinguished. Nita
Ram v. Secretary of State for India (1908).
I. L. R. 30 All. 176

s. 50—

See ante, s. 18. . . 13 C. W. N. 116

s. 53—

See ante, ss. 30 and 53.
See False Evidence — General Cases. '
I. L.R 27 Calc. 820

s. 54 and s. 30 — Award of corn-

See ante, ss. 11, 18, 31.
— ss. 39 to 41, 48, 50 (2)-

See ante, ss. 6 to 8, 9(2), 11.

pensation — Order for apportionment of compen-
sation— Appeal. — The term ' ' award ' ' used in s. 54,
Act I of 1894, includes an order for the apportion-
ment of compensation made under s. 30, and an ap-
peal from such order of apportionment hes to the
High Court. Balaram Bhramaratar Ray v.
Sham Sunder Narendra . I. L. R. 23 Cale. 526

Sheo Rattan Rai v. Mohri

I. L. R. 21 All. 354

ss. 54, 55 — Appeal against award-
Hindu Law — Charity properties prrimd facie in-
alienable. Properties set apart for charities are
prima facie inalienable ; and where such properties
are acquired under the Land Acquisition Act, the
award made thereunder may direct the investment
of the compensation-money in Government se-
curities. An appeal lies against the award in so far
as it directs investment under s. 54 of the Land
Acquisition Act. Shiva Rao v. Nagappa (1905).
I. L. R. 29 Mad. 117

LANDHOLD ER

See Madras Rent Recovery Act (VIII
of 1865), s. 1.
. responsibility of—

See Rioting . . I. L, 28 Calc. 504
LAND HOLDER AND TENANT.

See Landlord and Tenant.

LAND IMPROVEMENT LOANS ACT
(XIX OF 1883).

s. 7 (1) (n) — Revenue Recovery Act

{Mad. Act II of 1864), s. 42— Advance to owner
on two pieces of land — Security taken on one
alone — Sale of the other piece in respect of
advance — Validity. N held two pieces of land

( 6313 )

DIGEST OF CASES.

( 6314 )

T.ATSm IMPROVEMENT LOANS ACT
(XIX OF 1883)^concld.

s. 7 (I) {a)~-concld.

on patta, and obtained a loan from Government,
under Act XIX ot 1883, for the improvement of one
of them, namely No. 315. The other piece,
namely. No. 105-B, was not made collateral
security for the loan. Default having been made
in repayment of the loan, piece No. 315 was in
1894 attached and put up for sale, and (as there
were no bidders) bought in by Government. In

1895, N sold the other piece of land. No. 105-B, to
plaintiff, but the patta was not transferred. In

1896, No. 105-B was attached by Government in
respect of N's unpaid loan. Plaintiff objected to its
sale, claiming title to it as purchaser ; and, in 1897,
both N and plaintiff appUed for a transfer of the
patta to plaintiff. The transfer was not made, as
the loan to N had not been repaid. The land was
ultimately sold by Government to first defendant,
whereupon plaintiff brought this suit for a cancella-
tion of that sale. Held, that plaintiff was entitled
to the rehef claimed. Chinnasami Mudali v.
TmuMALAi PuxAi (1901) I. L. R. 25 Mad. 572

LANDING AGENTS AT PENANG.

See Bill of lading 13 C. W. N. 733

LANDLORD.

See Landlord and Tenant.
Crown as —

See Transfer of property Act. s. 51
13 C. W. N. 931
— right of suit by—

See Specific Relief Act, s. 9.

13 C. W- N. 835

LANDLORD AND TENANT.

Col.
1. Contract of Tenancy, Law govern-
ing 6318

2 Constitution of Relation —

(a) Generally .... 6322
(6) Acknowledgment of Tenancy

BY' Receipt of Rent
(c) Acknowledgment of Tenancy
BY' Payment of Rent

6327

6338

Obligation of Landlord to give
and maintain Tenant in Posses-
sion 6339

Obligation of Tenant to keep
Holding distinct . . . 6343

Ll^bility for Rent . . . 6344

Rent in Kind .... 6356

Tenancy for Immoral Purpose . 6357

Pay'ment of rent —
(a) Generally' .... 6358
(6) Non-payment . . . 6360

Nature of Tenancy . . . 6364

LANDLORD AND TENANT—ronW.

Col.

10.

Holding over after Tenancy

. 6382

11.

Damage to Premises let

. 6388

12.

Deductions from Rent .

. 6390

13.

Repairs

. 6390

14.

Tax and Cesses

. 6392

15.

Alteration of Conditions o
ancy—

F Ten-

{a) Power to alter

. 6392

(b) Division of tenure and Dis-
tribution of Rent . . 6393

Nature of Land . . . 6395

(d) Digging Wells or Tanks

. 6396

(e) Erection of Buildings

. 6399

16.

Transfer by Landlord

. 64(4

Transfer by Tenant .

. 6407

Accretion to Tenure .

. 6424

19.

Right to Crops

. 6430

Property in Trees and Wood on
Land 6431

21.

Forfeiture —

(a) Breach of Conditions

. 6438

(b) Denial of Title ■ .

. 6452

22.

Abandonment, Relinquishment, or
Surrender of Tenure . . 6461

23.

Ejectment—
(a) Generally

. 6474

{b) Notice to quit

. 6484

Buildings on Land, Right i
move and Compensation fo
provements

'0 re-
r 1m-

. 6510

25.

MlRASIDAllS .

. 6521

26.

Easement .

. 6524

27.

Enhancement of Rent

. 6524

28.

Inamdabs

. 6525

29.

Lease

. 6525

30.

Pre-emption

. 6526

31.

Sale in Execution

. 6528

32.

Under-ground Rights .

. 6529

See Abatement of Rent.
See Account, suit for

L L. R. 27 Calc. 663

See Acquiescence 7 B. L. R. 152

8 B. L. R. Ap.-51

10 B. L. R. Ap. 5

I. L. R. 9 Calc. 609

I. L. R. 14 All. 362

I. L. R. 25 Calc. 896

3 C. W. N. 255, 502

I. L. R. 21 All. 496 : L. R. 26 L A. 58

I. L. R. 27 Calc. 570 : 4 C. W. N. 210

7 C. W. N. 170

( 6315 )

DIGEST OF CASES.

( 6316 )

LANDLORD AISTD T^EN ANT— contd.

See Adverse Possession

10 C. W. N. 343

See Appeal.

I. L. R. 32 Calc. 1023

See Apportionment of Rent

7 C. W. N. 453

See Babuana Grant 13 C. "W. N. 118

See Bengal Tenancy Act, VIII of 1885.1

See Bengal Tenancy Act

10 C. W. N. 351 ; 547

See Central Provinces Tenancy Act-

See Chota Nagpur Landlord and
Tenant PROCEDtJRE Act, ss. 123, 125

See Civil Procedure Code, 1882, s. 244.

10 C. W. 3Sr. 240

See Civil Procedure Code, 1S82. s. 310

A. . . 12 C. W. N. 434

See Co-Sharers
See Decree.
See Easement

11 C, W. W". 517
I. L. R. 32 Calc. 680

I. L. R. 29 Calc. 363
I. L. R. 29 All 652

See Ejectment, Suit for.

See Enhancement

Rent

9 C. W. N. 303

See Estoppel — Landlord and Tenant
— Denial of Title.

See Evidence Act (T of 1872). s. 90
I. L. R. 33 Calc. 571
10 C. W. N. 422
See First Charge. I. L. R. 31 Calc. 550
See Forfeiture I. L. R. 31 Bom. 15
See Hindu Law — Endowment

I. L. R. 36 Calc. i003
See Holding over. 9 C. "W, W. 340

See Interest . I. L. R. 35 Calc. 34

See Interest — Miscellaneous Cases —
arrears of Rent.

See Joint Tenancy.

See Jurisdiction of Civil '^Court —

Rent and Revenue Suits.
See Kabuliyat
See Land Acquisition

I. L. R. 35 Calc. 763

See Land Acquisition Act (X of 1870).

I. L. R. 28 Calc. 146

See Land Acquisition Acts (XVIII of

1885 and I OF 1894).

I. L. R. 30 Calc. 801
See Lease . I. L. R. 33 Calc. 203
See Lease, construction of.

LANDLORD AND TENANT— contd.

See Limitation — Question of Li:\iiTATio*r

7 W. R. 395

18 W. R. 443

6 B. L. R. Ap. 130

7 B. L. R. Ap. 17

12 B. L, R. 274, 282 note, 283 note

I. L. R. 7 Bom. 96

7 C. W. N. 294
See Limitation. I. L. R. 31 Calc. 897
See Limitation Act, 1877. s. 18.

I. L. R. 12 Bom. 501
See Limitation Act, 1877, Sen. II,
Arts. 110 and 120 ;

I. L. R. 25 Bom. 556
Art. 139.

See Madras Rent Recovery Act (VIII
of 1865).

See Mesne Profits — Mode of Assess-
ment AND Calculation.

I. L. R. 30 Calc. 536

See Mortgage Lien.

I. L. R. 32 Calc. 41

See Non-occupancy Raiyat.

8 C. W. N. 446

.See North-Western Provinces Land
Revenue Act (XIX of 1873), ss. 154,
190 . I. L. R. 29 Ail. 318

*S'ee North-Western Provinces Rent
Act (XII of 1881).

See Notice to quit. 11 C. W. N. 1124
.S'ee Nuisance, under Criminal Pro-
cedure Code . 6 C. "W. N. 466
See Occupancy-holding

12 C. W. N. 1086

13 C. W. N. 220

(See Onus of Proof — Landlord and

Tenant.
-SeelPARTiES — Parties to Suits — Land-
lord AND Tenant.
See Partition — Right to Partition — ■
Partition of Portion of Property
5 C. W. N. 185

9 C. W. N. 699

See Practice I.^L. R. 33 Caic. 1094

See Principal and Agent —

Authority of Agents ;

I. L. R. 30 Calc. 207

Liability of Principal ;

I. L. R. 30 Calc. 207

^ee Prescription . 9 C. W. N. 293

*See Punjab Laws Act.

I. L. R. 30 Calc. 635

See Relinquishment of Tenure.
;See Rent, suit for.

( 6317 )

DIGEST OF CASES.

( 6318 )

,See Suit

See Transfer

IjANDLOBD and TENANT— ro/(<r7.

Sec Res Judicata —

Competent Court — Revenue

Courts.
Estoppel by Judgment;

I. L. R. 28 Calc. 109
6 C. W. N. 66

Matters in Issue ;

I. L. R. 28 Calc. 17

See Right of Occupancy.

See Sale for Arrears of Rent.

See Set-off . . 11 C. W. N. 25

See Small Cause Court, Presidency \
Towns — Jurisdiction — Moveable
Property . I. L. R. 4 Calc, 946
10 B. L. R. 448

See. Small Cause Court— Presidency
Towns ^ Jurisdiction — Immoveable
Property, recovary of.

I. L. R. 10 Bom. 30
I. L. R. 17 Mad. 216

See Special or Second Appeal — Orders
subject or not to Appeal.

I. li. R. 28 Calc. 116, 532

I. L. R. 31 Calc. 965

. 8 C. W. N. 214

10 C. W. N. 422 ; 449

See Trespass— General Cases.

23 W. R. Cr. 40
I. li. R. 2 Mad. 232

See Tenure — Mukaddami Tenure.

I. L. R. 23 AIL 67

•S'ee Title — Miscellaneous Cases.

I. L. R. 25 Mad. 507

-_ Act X of 1859, ss. 77, 153, 155,
160—

See Landlord and Tenant Act.

13 C. W. N. 599

adverse title, setting up of—

^ee Landlord and Tenant.

13 C. W. N. 805

— ejectment —

See Jurisdiction of Civil Court —
Rent and Revenue Suits — North-
western Provinces.

I. L. R. 23 AIL 360

See Landlord and Tenant — Nature of
Tenancy . I. L. R. 28 Calc. 738

See Limitation Act, 1877, Sch. II, Art.
144 — Adverse Possession.

I. L. R. 26 Bom. 442

— ejectment : notice to quit—

liANDLORD AND TENANT— conW.
exchange of leasehold rights-

See Rttles made under Acts — Bengal
Tenancy Act I. L, R. 28 Calc. 590

See Transfer op Property Act, s. 118
6 C. W. N. 905

— improvem^ents —

See Malabar Law.

I. L. R, 25 Mad, 568

lease of the same interest by-
two persons —

See Bengal Tenancy Act, s. 1.53.

8 C, W, N, 438

liability of heirs for rent —
.S'ee Inheritance 5 C, W, N, 189

— rate of tent —

See Evidence — Parol Evidence — Ex-
plaining Written Instruments and
Intention of Parties

6 C. W, N, 242

See Khoti Settlement Act, s. 8.

I. L. R. 27 Bom. 71

— right of pasturage —

See Easement . 8 C. W. N. 425
.See Recovery of Rents Act (Beng.\l

Act X OF 1859).
See Relinquishment. 8 C, "W, N. 315
suit for alluvial land—

See Limitation Act, 1877.

I. L. R. 29 Calc. 518

transfer by tenant —

See Possession — Suits for Possession
7 C. W. N. 607

1. CONTRACT OF TENANCY, LAW GOVERN-
ING.

1. Rules applicable to relation
of landlord and tenant. The rule.s applicable
to the relation of landlord and tenant m England are
applicable to India, wlienever no precise rule regard-
ing the subject is to be found in Hindu or other
laws. Tarachand Biswas v. Ram Gobind Cuow-
DHRY . . . I, L, R, 4 Calc. 781

2. Contracts of tenancy be-
tween Hindus in Calcutta— .s'^/<. U O'co. Ill,
c. 70 s. 17. A tenancy created by express
contract between Hindus in Calcutta is within the
words " matters of contract and dealing between
party and party " in 21 Geo. Ill, c. 70, s. 17, and the
right of the parties and the incidents of the tenancy
must be governed by Hindu law. Russickloll

MuDDUCK v. LoKENATH KUKMCK-iR

I. L R. 5 Calc, 688 : 5 C. L. R. 492

3. Government set-
tlement— Rate of reni — Obligation of under-tenants —
Contract with Government — Jamabandi Regulation
( VII of 1822), s. 9. On the expiry of the term of a
prior settlement the plaintiS took a fresh settlement

( 6319 )

DIGEST OF CASES*

( 6320 )

IjANDLOKD and TENANT— row/r/.

1. CONTRACT OF TENANCY, LAW GOVERN-
ING—cow^fi.

from the Government of certain lands and contract-
ed with the Government that he would not coUect
higher rents than are recorded in the settlement
papers : — Held, that that contract would not
prevent him from recovering from the defendants
higher rents by enforcing a contract, which the
latter had entered into with him. S. 9 of Regula-
tion VII of 1822 does not render such an agreement
Ulegal. S. 9, cl. (1) of Regulation VII of 1822
does not preclude the Court from going behind
the Collector's jamabandi. Zamir Mandal v.
Gofi Sundari Dasi, I. L. R. 32 Calc. 463 {footnote),
followed. GoTJE Chandea Saha v. Mani Mohan
Sen (1905) . . . I. L. R. 32 Calc. 463

Covenant

sub-tenant to pay rent due to superior landlord-
Failure to pay — Recovery of same by superior land-
lord, from tenant — Suit by tenant to recover same from
sub-tenant — Damages, suit for, if lies — Suit for rent —
Bengal Tenancy Act (VIII of 18S5), s. 3, cl. (5),
Sch. Ill, Art. 2 {b)— Limitation. The defendant
took settlement of some lands from the plaintiffs.
In the kabuliat executed by the defendants, the
terms of the agreement were as follows : — " In all
fixing the annual rent .... at R4,991-
12-3 and granting a permanent dur-putni and
se-pvtni settlement . . . you have executed in
my favour the . . . pottah. I therefore execute
this kabuliat and agree that I shall paj R3,191
12-3, the annual rent payable into the estate of your
paid jrufnidars and 7)ialiks, and pay the remaining
profit of R 1,800 a year to you .... I shall
pay the putni and diir-putni rents and cesses .
payable by you .... and take dakhilas for
that and make them over to you and I shall take

dakhilas from you if by reoson of

my default in payment of the said rents the maliks
bring siiits for arrears of rent and in execution of
decree, your putni and dur-putni rights be attached

and brought up for sale then you

will deposit the said amount of rent and bring a suit
against me for arrears of rent and recover that
amount with interest and costs by sale of this my
dur-putni and se-putni rights and from other pro-
perties. ' ' Defendants failed to pay to the superior
landlords rents due for 1304 and 1305 and the latter
sued the plaintiff for the same and obtained decrees,
in execution of which the properties were attached
and advertised for sale. Plaintiffs thereupon paid
off the decretal debts on 8th September 1898 and in
Bhadro 1803 (7th September 1901) brought this suit
for recovery, as damages, of the said amount from
the defendant. It was objected that the suit, was
not maintainable and was barred by limitation :
Held, that the suit was properly brought as a suit
for damages. There were here two separate and
distinct covenants, one to pay R3,191 odd to the
sujjerior landlords and the other to pay R 1,800 as
rent to the plaintiffs as landlords. The former
amount was not payable as rent as defined in the
Bengal Tenancy Act, and plaintiff 's proper remedy

! LANDLORD AND TENANT— con/c/.

1.' CONTRACT 0F;')TENANCY, LAW GOVERN-
ING—conftZ.

was to bring a suit for damages. Basanta Kumar*
Debya v. Ashutosh Chuckerbutfy, 4 C. W. N. 3 s.c.
I. L. R. 27 Calc. 67, distinguished. Held, that the
present case was undistinguished from Ratnessur
Biswas v. HurisJi Chunder Base, I. L. R. 11 Calc.
221, which had not been overruled by the Full
Bench in Basanta Kumar i Debya v. Ashutosh
Chuckerbutty, I, L. R. 11 Calc. 221. Hemendea
Nath Mtjkeejee v. Kumae Nath Roy (1905)

9 C. W. N. 96

5. _ Jote, portion of

— Transfer— Validity — Decree for rent against re-
corded tenant — Unrecorded tenants interest, effect on
— Sherista. landUrd^s, record in, not compulsory.
There is no law rendering it obligatory on tenants
who are not tenure-holders, to get their names
recorded in the landlord's sherista for the purpose
of perfecting their title. Therefore the sale of a jote
in execution of a decree for lent obtained against
the recorded tenants does not pass the interest of
the tenants, whose names are not registered in the,
landlord's sherista. Nitya Behari Saha v. Hari-
govinda, I. L. R. 26 Calc. 677, distinguished. The
case of Kuldip Singh v. Gillanders, Arbuthnot & Co.,
I. L. R. 26 Calc. 615, is no authority for the propo-
sition that the purchaser of only a portion of a jote
gets no title. Ashok Bhuiyan v. Kaeim Bepaei
(^1905) 9 C. "W. N. 843

6. Bengal Tenancy

Act (VIII of 1885), ss}^65 and 170— Plaintiff also a
landlordlat the date of the suit and decree for arrears of
rent — Sale — Tenure — Claim — Civil Procedure Code
(Act XIV of 1882), s. 278. If at the time when a
suit for arrears of rent is instituted and a decree
made the plaintiff is still the landlord, the fact that
he has subsequently sold his interest in the property
does not prevent him from obtaining the benefit of
s. 65 of the Bengal Tenancy Act and executing the
decree against it. The suit having been instituted
and the decree passed under this Act, s. 170 of the
Bengal Tenancy Act excludes the operation of s. 278
of the Civil Procedure Code. Hem Chandra Bhanjo
V. Mon Mohini Dassi, 3 C. W. N. 604, overruled.
Khetra Pal Singh v. Kritaethamoyi Dassi
(1906). . . . I. L. R. 33 Calc. 566

7. - Ben/jal Tenancy

Act (VIII of 1885), s. 178, sub-s. (1), cl. (a) and
sub-s. (3), cl. (a) — Contract stipulating re-entry on
raiyafs death — Validity — Bengal Act VIII of 1S69,
s. 7. A valid contract of tenancy providing that
the tenant, a raiyat, should hold the land for his
lifetime, and that the landlord would have the
right to re-enter on his death, could be created
before the passing of the Bengal Tenancy Act.
Such a contract does not come within the terms of
the provisions in cl. (a), sub-s. (1) or cl. (a), sub-s.
(3) of s. 178 of the Bengal Tenancy Act, and is
therefore enforcible. The contract in this instance
having been created by a solenamah in 1877 and
the tenant dying in 1902 : — Held, that the landlords

( 6321 )

DIGEST OF CASES.

( 6322 )

LANDIiOKD AND TENANT— confc/.

i; CONTRACT OF TENANCY, LAW GO\"ERN-
ING—conld.

can recover Ichas possession. Bafl Chandra
Chakravarti v. Nistarini Debi (1905)

I. L. R. 33 Calc. 136
s.c. 10 C. W. N. 533

Suit against

landlord and other persofi claiming vnder him by
lessee of melvaram rights falls under s. 7, cl. V, and
not under cl. XI (E) of the Court-fees Act (VII of
1870''. A suit by the lessee of melvaram right to
recover possession from his landlord and others
claiming through the landlord falls within s. 7,
clause V of the Court-fees Act, as a suit for posses-
sion of land. Such a suit does not fall within s. 7,
clause XI (E). Clause XI applies to suits between
tenant and landlord only, and the wording of clause
XI (E) makes it applicable only to persons in actual
physical occupation and not to persons having the
melvaram rights only. Furzand Ali v. Mohanth
Lai Puri, I. L. B. 32 Calc. 268, followed. Palani-

APPA ChETTI V. SiTHRAVELU SeRVAI (1908)

I. L. B. 31 Mad. 14

Decree for rent

— Executive — First charge — Lien — Bengal Tenancy
Act {VIII of 1SS5), ss. 65, US (b), 161—Begulation
VIII of 1819, s. 134. A zemindar sued his patnidar
for arrears of rent and obtained a decree, but pre-
vious to the institution of the suit had sold all his
interest in the zemindari. The purchaser of the
zemindari subsequently instituted proceedings
under Regulation VIII of 1819 for further arrears of
rent and the darpatnidar deposited the rent under
s. 13 of the Regulation. In a suit by the darpatni-
dar for a declaration that he had a first charge on
the patni in respect of the sum deposited by him :
Held, that the decree obtained by the former
zemindar was a decree for rent within the meaning
of s. 65 of the Bengal Tenancy Act and constituted
a first charge on the patni under that section with
priority to the lien of the respondent. Nagendra
Nath Bose v. Bhuhan Mohan Chakravarti , 6 C. W. N.
91, distinguished. Hem Chunder Bhiinjo v. Mon
Mohini Dassi, 3 C. W. N. 604 ; Srimant Boy v.
Mahadeo Mahatn, I. L. B. 31 Calc. 550, not followed.
Khetra Pal Singh v. Kritarthamoyi Dassi, I. L. B.
33 Calc. 566, referred to. Mahara.i Baiiaditr
Singh v. Forbes (1908) I. L. R. 35 Calc. 737

10.

Mdmlatddrs''

Courts Act [Bombay Act II of 1906), s. 19, cl. (b)—
Possessory suit — Trespasser dispossessing the tenant
during the duration of tenancy — Landlord siiiwj to
recover possession ivithin six months from the deter-
mination of the lease. On the 5th June 1905
the plaintiflf let certain lands to defendants Nos. 1
and 2. During the continuance of the tenancy
defendant No. 3, a trespasser, dispossessed defend-
ants Nos. 1 and 2 and got into possession of the
lands in November 1905. The tenancy determined
on the 6th June 1906. On the 29th October 1906,
plaintiii filed a possessory suit in the Mamlatdar's

LANDLOEP AND TENANT-ro«W.

1. CONTRACT OF TENANCY, LAW GOVERN-
ING—coticW.

Court against the defendants Nos. 1 — 3 to recover
possession of the lands. The defendant No. 3
contended that her adverse possession having
commenced more than six months before the insti-
tution of the suit the Mamlatdar had no jurisdiction
so far as the plaintiff's claim against her was
concerned. Held, that the plaintiff's remedy
having been to bring his suit under clause (6) of
s. 19 of the Mamlatdars' Courts Act (Bombay
Act II of 1906), on the expiry of the tenancy, the
fact that a trespasser got into possession during
the continuance of the tenancy, but more than six
months before its determination, did not ou.st the
Mamlatdar's jurisdiction. Per Chaxdavarkar, J.
— The Mamlatdar's Courts Act (Bombay Act II of
1906) is a remedial measure and must be liberally
construed so as to advance the remedy. Deu Dada
Gavli v. Sitaram Chimjiaji (1907)

I. L. R. 32 Bom. 46

11.

Bight of )nel-

varamdar to distribute water — The right of the ryot to
the customary supply of water is proprietary. As
between the melvaramdar and the owner of the
kudivaram, the right of the latter to the customary
supply enjoyed by him is proprietary and not con-
tractual. The fornur canrot by ary agi'eement
wit h third parties derogate from such right and the
kudivaramdar can sue such third parties for an in-
fringment of his right. The right of such kudi-
varamdar is different frcm that of an ordinary
Government ryot. The Crown has, unlike the
melvaramdar, the right to revise the assessment
and to distribute water in the interests of the
general pubUc, subject to the claim of the
ryot for a supply sufficient for his requuements.
Nynappa Servai v. Veerax (1908)

I. li. R. 32 Mad. 423
12. — Pos<e<sion with-
out a leas'e — Kabidiat — Sitit for rent— Liability
for compensation for use and occiqmtion — Denial of
liability — Estoppel. 'When certain persons entered
into possession of property executing a registered
kabidiat and paid rent for some time, but in a suit
for rent pleaded that in the absence of a lease
there was no contract of tenancy and rent could
not be recovered by suit : Held, that the suit might
be treated as one for use and occupation, and in view
of the fact that the defendants entered into and
continued in possession, they could not be heard to
say that thej- were not liable for use and occupation.
Sheo Karan Singh v. Maharaja Parbhu Naraix
Sixgh (1909) . . I. L. K. 31 AIL 276

2. CONSTITUTION OF RELATION.

{n) CeNER.VLLV.

3. Contract to pay rent — Omis-

sion to obtain kahuliat. Where two parties bind
themselves under an indenture drawn up in the

( 6323 )

DIGEST OF CASES.

( 6324 )

LANDLORD AND TENANT— comfd.

2. CONSTITUTION OF RELATION— co«<rf.

(a) Generaxly — contd.

English form, the one to lease and the other to
pay rent for certain land, the contract is complete,
and a suit for arrears of rent due under it will lie
under Act X of 1589, although no separate kabuliat
is executed. Kishen Doss v. Hitrry Jeebun
Doss . . 10 W. B. 324

Implied relationship of land-

lord and tenant — Absence of express condition.
Waere A avowedly holds and cultivates B's land,
A is, by the universal custom of this country, B's
tenant (even without express permission to cultivate
on jB's part, or express condition to pay rent on ^'5
part), and while so holding and cultivating is bound
to pay B a fair rent and to give him a kabuliat.

NiTYANUND GhOSE V. KiSSEN KiSHORE

W. R. 1864, Act X, 82
5. Grant of pottah byzamindar

to sub-tenant — Non-assignment of rights to in-
termediate tenant — Suit for kabuliat. The defend-
ant was under-tenant in respect of lands which his
lessor held under a modafut from the zamindar.
Subsequently the lessor left, and the zamindar gave
to the defendant a pottah for part of the lands
covered by the modafut, and to the plaintiff a
pottah for the whole land covered by the original
modafut ; but did not assign any of his rights as
zamindar to the plaintiff to recover or enliance the
rent reserved in the pottah he had granted to the
defendant. Held, in a suit for a kabuliat at an
enhanced rate, that the plaintiff and defendant were
not in the position of landlord and tenant, so as to
enable the plaintiff to maintain his suit. Kalam
Sheikh v. Panchu Mandal .

2 B. L. B. A. C. 252

s. c. Kallam Sheikh v. Panchoo Mundul

11 W. B. 128

6. Grant relating to portion of

land rent-free, but subject to house-tax—

Holders under sanad under Botn. Act VII of 1863.
The plaintiffs were the registered holders of the
village of Mankoli, in the Ahmedabad Collectorate,
for which they obtained a sanad in 1864 under Bom-
bay Act VII of 1863. The defendants were the
descendants of the original owners of the village,
who, about 1768, finding themselves unable to meet
the expenses attaching to the village, gave up their
title to it to the ancestors of the plaintiffs on con-
dition of retaining a third of the lands rent-free as
their wanta, or share, subject to no other condition
but a house-tax. Held, that the circumstances did
not constitute the relationship of landlord and
tenant between the parties. Jesin'gbiiai r.
Hataji . . . . I. L. E. 4 Bom. 79

7. Instrument not fixing per-
manent rent. Where a written instrument pur-
ported to create the relation of landlord and tenant
for five years, the lessor's tenure being that of a
jnirasidar, i.e., a hereditary tenancy under Govern-

LANDLOED AND TENANT— cowfd.

2. CONSTITUTION OF RELATION— con<d.

(a) Generally — contd.

ment determinable on default in payment of the pro-
portion of the motha faisal assessment payable for
the land : — Held, that the instrument did operate to
create the relation of landlord and tenant, notwith-
standing that the assessment was not permanently
fixed. Saminathaiyan v. Saminathaiyan

4 Mad. 153

Payment of revenue by one

CO- sharer through anothev—hderest — Act X
of 1S59, s. 20. By a deed between A and B, B pur-
chased from A a fractional share of a pergunnah the
Government revenue payable on which was R43-12 ;
and it was stipulated that B was to apply to the
Collector for mutation ; and that, until the mutation
was completed, he should pay the above quota of the
Government revenue through A ; and that after the
I mutation the relation between A and B should be an
independent one. Held, that the relation of land-
lord and tenant was not created by the deed, and
consequently that s. 20 of Act X of 1859 did not
apply to entitle A to interest upon the recovery df
a quota of revenue payable by B under the deed.
GoLucK Chunder Roy v. Juggernauth Roy
Chowdhry . ^i Marsh. 146 : W. E. F. B. 47

1 Hay 346

9. ■ Decree for kabuliat — Evidence

of relationship of landlord and tenant. A decree
which directs that a kabuliat shall be given by the
defendant at a certain rent amounts to an adjudica-
tion that there is between the parties the relation of
landlord and tenant, and is important evidence on
that point in any subsequent suit against the same
defendant. Shurtjf Jan v. Futteh Ali

22 W. E. 389

10.

Assessment after resump-

tion — Position of lakhirajdar after resumption.
To create the relation of landlord and tenant
between a zamindar and lakhirajdar after resump-
tion it is necessary for the zamindar to assess the
rent. The holding of a lakhirajdar, after a decree of
resumption, is not that of a trespasser, and he is
fully entitled to remain in possession of the land
without paying rent until the zamindar assesses
rent upon him. Hfreebtjns Burhal v. Joykishen
Mookerjee .... 6 W. E. 92
Brojonath Dutt v. Joykishen Mookerjee

4 W. B. 69

Bhoopal Chunder Biswas v. Mahomed Mollah
6 W. B. 286

11.

Decree declaring right to

&&Bessm.erLt— Resumption of invalid lalchiraj —
Beng. Reg. II of 1819, s. 30—Beng. Reg. XIX of
1793, s. 10 — Decree of Civil Court. A decree of a
CivU Court in a suit (the plaint of which referred to
s. 30 of Regulation II of 1819 and s. 10 of Regula-
tion XIX of 1793), which declared the right of the
zamindar to assess rent on land not proved to have
been held imder a grant prior to 1st December 1790

{ 6325 )

DIGEST OF CASES.

( 6326 )

liANDLOED AND TENANT— con^f?.
2. CONSTITUTION OF RELATION— co?i;^i'.
(rt) Generally — contd.

was sufficienl to establish the relationship of
landlord and tenant between the zamindar and the
party against whom the right of assessment was
deelared. Saitdamini Debi v. Sakup Ciiandra
Roy . 8 B. li. R. Ap. 82 : 17 W. B. 363

Shamasundari Debi v. Sital Khax

8 B. L. B. Ap. 85 note; 15 W. B. 474
Madhtjsudan Sagory v. Nipal Kuan

8 B. li. B. Ap. 87 note : 15 W. B. 440

RoHiNi Nandan Gossain v. Ratneswar Kun-df

8 B. L. B. Ap. 89 note : 15 W. B. 345

Decree for resumption-

Resmn-ption of invalid lakhiraj — Beng. Reg. II of
ISHJ—Suit for kabuliafr—Act X of 1S59, s. 23, cl. 1.
The having obtained a decree for resumption of
invalid lakhiraj lands, held on tenure prior to 1st
December 1790 under Regulation II of 1819, did
not create the relationship of landlord and tenant
between the plaintff and defendant so as to enable
the plaintiff to sue for a kabuliat under cl. 1,
-. 2?., Act X of 1859. That relationship could not

, ■ into existence until the lakhirajdar had agreed

lu })ay the revenue assessed by the Collector. Ma-
dhab Chandra Bhadory v. Mahima Cha^jdra
Mazumdar

8 B. li. E. Ap. 83 note : 12 W. B. 442

13. Suit for arrears of rent as

so determined for a period prior to such
determination — Order of Settlement Officer render
.Y.-ir. P. Land Revenue Act (XIX of 1873), s. 77,
determining rent. An order of a Settlement Officer
under s. 77 of Act XIX of 1873 determining rent is a
purely prospective order and will not entitle the
landlord to sue his tenant for rent at the rate fixed
thereby for any period antecedent to the 1st of July
next following the date of such order. Mahadeo
I'ramd v. Mathura, I. L. R. S All. ISO, distin-
guished. Debi Singh v. Jhano Kuar

I. L. R. 16 All. 209

14. Position of occupiers in

village granted to inamdar — Suti tenure. An

inamaar to whom a village has been granted by

! Government, though bound to respect all existing

ttnant-rights, is under no obligation to grant un-

upied lands in "suti" or other permanent

ue, or to re-grant on the same tenure lapsed

lands ; nor does the mere taking up of lands in

I a village constitute the occupiers suti tenants.

arvanji Hormasji v. Naryan Trimbak

1 ..TIL .... 4 Bom. A. C. 125

! 15. Belationship depending on

'validity of adoption — Status pending appeal to
\Privi/ Council. In a suit for rent the plaintiff sued
!as the adopted son of the deceased landlord, and the
defendant (who was the adopted son of the deceased
tenant and in possession) denied the relationship of
landlord and tenant between them. It appeared

liANDLOBD AND TENANT— <-on?d.

2. CONSTITUTION OF RELATION— con<d.

(a) Generally — contd.

that the defendant dispute! the vahdity of the
plaintiff's adoption and had brought a suit to set
it aside in which he had failed, but had appealed to
the Privy Council ; that the plaintiff had not
received rent for manj^ years, and liad brought a suit
to eject the defendant and recover mesne profits
which was dismissed, it being found that tlie defend-
ant was entitled to retain possession. Ilelfl, that,
so long as the decision that the plaintiff was the
adopted son of the deceased landlord held good, the
relationship of landlord and tenant existed between
the parties, and the plaintiff" was therefore entitled
to recover rent from the defendant. Huronath
Roy Chowdhry v. Golucknath Chowdhry

19 W. B. 18

16. ^ Assignment by tenant of

goodwill, stock-in-trade, fixtures, furniture,
and chattels — Notice by laiulU.rd to leasee and
to assignee to deliver up possession on expiration
of lease or to pay rentr— Holding over — Use and
occupation — Liability of assignee for compensation
for use and occujMtion. L assigned to D the stock-
in-trade, goodwill, fixtures, chattels, and premises in
connection with a certain business carried on by him
at the said premises which he held on lease from
the plaintiff. The deed of assignment contained
(i7iter alia) a provision empowering the assignee,
in the event of any breach by L of the covenants
contained in the said deed, to let the premises for
any term or terms of years for such rent and under
such covenants and conditions as D might think fit ;
and there was a further provision that L should not
remove any of the stock-in-trade, chattels, etc.,
without the permission of D. Shortly before the
expiration of the lease, the plaintiff served a notice
on L to dehver up possession of the premises on the
expiry of the lease or to pay an enhanced rent there-
for, and a notice on D requiring D to dehver up
possession and stating that in default he would hold
D jointly liable with L for the enhanced rent. D
had durwans and a clerk on the premises to see that
nothing was removed therefrom AUtlu.ut his per-
mission. L and D continued to keep the stock-in-
trade on the premises after tlie determmation of the
lease, and the business was carried on as before.
The plaintiff subsequently brought an action against
D and L for compensation for use and occupation of
the premi-ses for four months. Held (reversing the
decision of Ameer Ali, J.), that the le^se did not
pass under the terms of the assignment to D, and
that D was not liable to the plamtiff for compensa-
tion for the use and occupation of the premises.
MaDHUBMONEY DaSSEE v. NlNDO Lall Glpta

I. L B. 26 Calc. 338

17.

Non-payment of rent.

Non-

payment of rent does not detei mine the relation of
landlord and tenant. Apurba Krishna Hoy i-.
AsHUTOSU DCTT (1905) . 9 C. W. N. 122

( 6327 )

DIGEST OF CASES.

LANDLORD AND TENANT— c9wW.
2. CONSTITUTION OF RELATION— conic/.

18,

(a) Generally. — concld.

Right of tenant to hold

land for -which he refused to accept patta.

A tenant is not entitled to claim lands, for which he
refused to accept pattas tendered by the landholder,
as having become part of his holding by such
tender. Jumna Bai Ranee Saheb v. Solai
Kavundam (1905) . I. L. R. 28 Mad. 553

19. Benami transactions —

Benami lease — Authority of benamdar registered
tenant to pledge the tenure for arrears of rent —
Mortgage — Form of mortgages— Agreement not to
alienate — Transfer of interest — Creation of charge —
Absence of attestation — Charge — Transfer of Property
Act (IV of 1SS2), ss. 5S, 59, 100— Charge for
rent — Bengal Tenancy Act {VIII of 1SS5), s. 65.
Where A held a tenure in the benami of B, who was
the recorded tenant, and the latter without the
■knowledge or consent of A executed a bond in favour
of the landlord, who knew that B was merely a
benamdar, mortgaging or charging the tenure for
arrears of rent due in respect thereof. Held, that
the bond could not affect the tenure and that the
landlord suing on the bond was not entitled to claim
a charge on the land under s. 65 of the Bengal
Tenancy Act. Per Mookerjee, J. — The test is
whether B acted within the scope of his authority.
A nominal owner has no implied authority to pledge
the property in arrears on the real owner failing to
pay the rent regularly. An instrument, by which
the payment of money is secured on land, must be
taken to create a mere charge, unless there is an
indication in it that some mterest in specific im-
moveable property was transferred ; a clause
entitling the creditor to recover his dues by attach-
ment and sale of the property and a clause against
alienation lend support to the view that a mere
charge was intended to be created. S. 100 of the
Transfer of Property Act does not mean that a
transaction purporting on the face of it to be a
mortgage is converted into a charge, i£ the instru-
ment cannot operate as a mortgage by reason of
defective execution or non-compliance with the
formalities prescribed by the law. Royzuddi
Sheik v. Kali Nath Mookerjee (1906)

I. L. R. 33 Calc. 985

20. Relationship of landlord

and tenant must be shown to arise out of
contract or privity of estate. Suit for rent —
Before a plaintiff can succeed in a suit to recover
rent, he must establish relationship of landlord and
tenant existing between himself and the defendant
and resting either on contract or privity of
estate. Manjappa v. Venkatesii (1906)

I. L. R. 31 Bom. 159

(6) Acknowledgment of Tenancy by Receipt of
Rent.

LANDLORD AND TENANT— cotc««/.
2. CONSTITUTION OF RELATION— conirf.

(6) ACKKOWLEDGMENT OP TeNAKCY BY RECEIPT

OF Rent — contd.

pay rent. To establish a right to recover i;'ent, a
zamindar must show that either by assessment in
due course of law or by agreement the tenant is
liable to pay it. Gayasoodeen v. Khuda Buksh
; 1 N. W. 87 : Ed. 1873, 139

Krishna Ghose v. Ram Narain Mohapattdr
25 W. R. 214

22.

Right to recover rent-

21.

Right to recover rent,

establishment of — Assessment — Agreement to

Sharer in undivided talukh — Agreement to pay rent.
A sharer of an undivided talukh may be entitled to
recover his share of the rent due from the talukh
generally, but it does not follow that he is entitled to
recover from the jotedar of a particular jote in the
talukh unless there is an agreement to that effect.
Shama Soondtjree Debia v. Kristo Chunder
Roy 13 W. R. 316

23. Purchase of

land — Contract, express or implied, for payment of
rent. Held, that the plaintiff, not having been put
into the possession of land purchased by him, and
holding on contract, express or implied, from the
holder of the land for payment of rent, was not com-
petent to sue the defendant (occupant of the land)
for rent thereof. Ram Dass Singh v. Ram Narain

2 Agra Rev. 9

24. _ Liability to pay rent — Occu-
pation after deprivation under decree. A party
stripped by a decree or order of proprietary interest
in land does not by mere subsequent occupation of it
become vested with the character of a tenant, and
therefore he is not liable to distraint for rent. He
must have become a tenant by agreement or act of
law to render him hable for rent. Mukurdhooj
Singh v. Ram Churn 1 N. W. 14 : Ed. 1873, 12

25. Implied contract to pay

rent. Under certain circumstances, a contract to
pay rent to the zamindar on the part of the tenant
will be implied, but no implication of a contract to
pay rent to the zamindar on the part of the tenant
can arise in a case in which the defendant has been
paying rent to another zamindar than the one suing
for a kabuliat. Digambur Mitter v. Huro-
pershad Roy Chowdhry . 7 W. R. 126

26. . Transferee of landlord — At-
tornment, necessity of. In a suit for rent where tiie
defendant held under a lease from a party who
subsequently gave a lease to plaintiff which gave him
the right to collect rents from the defendant in
accordance with the terms of the former (the defend-
ant's) lease : — Held, that no attornment was neces-
sary, and that the relationship of landlord and
tenant existed between the parties so that the suit
could be instituted in a Revenue Court under the
Rent Act. Sree Chand v. Budhoo Singh

13 W. R. 301

27.

Ex-proprietary tenant-

Suit for arrears of rent — Determination of rent — Act

( 6329 )

DIGEST OF CASES.

( 6330 )

■LANBIjO-RTt AND TENANT— cow/i.
2. CONSTITUTION OF RELATION— co»<(i.

(b) Acknowledgment of Tenancy by Receipt

OF Rent — contd.
XII of ISSl (N.-W. P. Rent Act), ^s. 14, 95, cl. (I)
—Act XIX of 1S73 {N.-W. P. Land Revenue
Act), s. 190. Except where there has been an
arrangement or agreement between the parties, a
landholder cannot sue his ex-proprietary tenant for
rent until, as a condition precedent, he or the tenant
has obtained a determination of the amount thereof,
either by application to the Settlement Oificer under
s. 14 or to the Revenue Court under el. [1), s. 95
of the Rent Act, or it has been fixed by the Collector
or Assistant Collector according to s. 190 of Act
XIX of 1873. Phxjlahra t'. Jeolal Sixgh

I. L. R. 6 All. 52

28. Suit for arrears of rent

prior to order— .V.- W. P. Rent Act {XII of iSSl),
s. 95^N.-\V. P. L(md Revenue Act {XIX of 1S73),
■s. 72 and 77 — Determination of rent by Settlement
Officer. In March 1884, the rent payable by an
occupancy -tenant was fixed by the Settlement Officer
under s. 72 of Act XIX of 1873 (N.-W. P. Land
Revenue Act). In 1885 the landholder brought a
suit to recover from the tenant arrears of rent at the
rate so fixed for a period antecedent to the Settle-
ment Officer's order, as well as for the period subse-
quent thereto. The lower Appellate Court dismis-
sed the claim for rent prior to the 1st July 1884, and
decreed such as was due subsequently to that date,
but without interest. Held, that the Court could
not decree any amount as arrears due until the rent
payable had been fixed by private cozitract or by a
competent Court ; that, under s. 77 of the N.-W. P.
Land Pvcvenue Act, the rent fixed by the Settlement
/Officer was payable from the 1st July follo\ving the
date of his order, but not before ; that for the period
j prior to the 1st July 1884 no rent had been fixed ;
that it could not be fixed in the present suit, neither
the Court of first instance nor the High Court
: having jurisdiction to fix it; and that the claim
for rent for the period in question must therefore be
dismissed. Mahadeo Prasad v. Mathura, I. L. R.
•S All. 1S9, distinguished. Phulahra v. Jeolal
Singh, I. L. R. 6 All. 52, referred to. Radha
Prasad Singh v. Jugal Das. I. L R. 9 All. 185
1 29. Extinguishment of pro-
prietary right by partition— C'ow«rac< for pay-
ment of rent. Where a partition was made and the
iproprietary right of one of the co-sharers in a por-
ition which fell to another was consequentiv extin-
i^uished and he became a mere tenant -.—Held, that,
[though the rent was exigible, the claim for arrears
of rent could not be decreed in the absence of
;exprcss or implied contract for the same. Z.\Lnt
|KAi V. Doorga Rai . 1 Agra Rev. 69

30.

LANDLORD AND TENANT-

■onll.

Claim to rent-

- Arrears of

\rent~Failure to prove liability to pay reiit. A
claim for arrears of rent cannot be sustained where
the claimant fails to prove that rent has ever been
paid. Shed Sahai v. Ata Hos.sein

2 Agra Rev. 10

2. CONSTITUTION OF RELATION— ron/r/.

(6) Acknowledgment of Tenancy by Receipt

OF Rent— "o«<^Z.
See GuMANi Kazi v. Hurryhur Mookerjkk

B. L. R. Sup. Voi. 15

Of proves a contract to pay rent. LrniMEEPi-T

Doss V. Enaet Ali . . 22 W. R. 346

, , • : — ' ; Assessment an I

determination of rate of rent^Rent-free lands \
suit for arrears of rent cannot be maintained in
respect to rent-free land until the land has been
assessed and the rate of rent determined. Noor \li
V. Imteazoodeen Khan . 3 Agra Rev. 2

. • ^ ~ Suit for arrears

of rentr-N on-pay ment of rent for lom^ period-
Allegation of rent-free tenure. A landlord cannot
maintain a suit for arrears of rent where a claim to
hold the land rent-free by some title of exemption is
set up, and the question for enquiry in such a suit is
not whether the land is or is not subject to assess-
ment, but whether, referring to the circumstances
under which rent has been withheld, the land can be
regarded as rent-paying land. The mere fact of the
land being entered in the settlement papers as
assessed, or that the annual papers contain entries,
is not sufficient to justify a decree for arrears of rent'
Chooneelal v. Chitowla . 2 Agra 137

33;.^ Decree for

kabuliat — Suit for arrears of rent previous to kabuliat.
\Vhere a party, after obtaining a decree establishing
his title to land, sues for and gets a decree for a
kabuliat against another who was holding the
land adversely to him without any contract
express or implied, for the payment of rent, he can-
not maintain a suit, for arrears of rent for a period
previous to the kabuliat, which cannot have
retrospective effect. Jan Ali v. Gookoo Das
Roy . . . . 8 W. R. 338

34.

Mortgagor after

redemption and grantee of mortgagee. No such rela-
tion as that of landlord and tenant exists between a
mortgagor (after redemption) and the grantee of the
mortgagee, and such mortgagor must establish his
right to collect rent before he can sue to have the
amount thereof ascertained. Adjoodiiva Sinijii .-.
Girdharee . . . . 2 N. W. 197

35. — Purchaser of

rent-paying tenure — Privity with zamindar. There
is sufficient privity of estate between the purcliaser
of a rent-paying holding and the zamindar to entitle
the latter to claim rent. Kooloo Misr r.
Bhyro Kulwab . . . 2 N. W. 258

36. Liability of heir

of deceased lessee for rent — Mokurrari lease

Kabuliat. The heir of a lessee is hable to the lessor
for rent payable by virtue of a kabuhat. notwith-
standing he is not in possession of the land. Tari-
neepershad Ghose t'. Sreegopal Paul Ghow-
DHRY . . . Marsh. 476 : 2 Hay 539

{ 6331 )

DIGEST OF CASES.

( 6332 )

LATTDLORD AWD TENANT— ronfi.

2. CONSTITUTION OF RELATION— co«R

(6) Acknowledgment of Tenancy by Receipt
OF Rent — contd.

37.

Begistered oxvner.

suit by, where the relationship of landlord and
tenant is not shoivn to exist — Beng. Act VII of
1876, s. 78. The mere fact of a person being
registered under the provisions of Bengal Act VII of
1876 as proprietor of the land in respect of which
he seeks to recover rent is not sufficient to entitle
him to sue for it. Where a landlord who was regis-
tered as owner of the land in respect of which he
claimed rent sued the occupier for such rent, but
was only able to prove the fact that he was the regis-
tered owner and was unable to show that the rela-
tionship of landlord and tenant existed, or that he
had a good title to the estate of which he was the
registered owner : — Held, that the suit was rightly
dismissed. Ramkrtsto Das.s v. Harain

I. L. R. 9 Calc. 517 : 12 C. L. B. 141

38. - Presumption of

relationship of landlord and tenant. Where a
defendant in a suit for enhancement of rent admits
that he has paid for many years and is still paying a
sum of money to the holders of the patni in plaint-
iff's possession, without being able to show it was
paid as anything but rent, there is sufficient to raise
the presumption that the parties stand to each other
in the relation of landlord and tenant. Beharee
Lall Mookherjee v. Modhoo Soodun Ohowdhry

8 W. R. 474

39. — Beng. Regs. V

of 1799, s. 5, and V of 1827, s. 3 — Sub-tenure taken
charge of by Collector. Under the provisions of Re-
gulation V of 1799, s. 3, and Regulation V of 1827,
s. 3, the Collector took charge of a sub-tenure as ad-
ministrator of a deceased person to whom the sub-
tenure belonged. Held, the Collector was in no
sense the tenant of the superior landlord and con-
sequently no suit would lie against him under Act
X of 1859 for rent alleged to be due in respect of the
sub-tenure. Collector of Bograh v. Dwarka-
NATH Biswas

4 B. li. R. Ap. 80 : 13 W. R. 194

40.

Occupation by

trespasser. Occupation by a trespasser does not
create a claim to rent, though it may give grounds
for an action for damages. Bichook Pandey v.
Narain Dtttt . 1 »". W. 26 : Ed. 1873, 24

41.

Bight of persons

tn possession under decree against person with sub-
sequent decree for possession. — Attornment, absence
of. Where A and B were in possession of lands by
virtue of a decree of Court, their tenants could not
be called upon to pay rent to C, to whom they had
not attorned, but who subsequently obtained a
decree for the lands in suit, so long as no decree of
Court had declared the title of C to be superior to
that of ^4 and B. C's remedy in such case is an
action against the persons who were wrongfully in
possession for mesne profits, and not in a suit for

LANDLORD AND T:EN ANT— contd.

2. CONSTITUTION OF RELATION— confci.

(6) Acknowi.edgment of Tenancy by Receipi
op Rent — contd.

rent against their tenants, who had in good faith
dealt with the persons who were the ostensible
proprietors in possession under a decree. Lands
may be cultivated by a mere trespasser, and in that
case the cultivator would not be liable to a suit foi
rent, but to a suit for mesne profits. Owners of land
may take advances for the cultivation of indigo, and
the persons by whom the advances were given maj
find it necessary to enter on the land and look aftei
the cultivation and harvesting of the crop, but ii
they did so, they could not be sued as tenants for
rent. To render a person liable to pay as a tenant
it must be proved that he has by an express oi
implied agreement promised to pay rent, or thai
he has been assessed with rent in due course of law,
MuNOHUR Doss V Deen Dyal 3 N. "W. 179

42.

Liability for

rent from use and occupation without registration
Parties in possession make themselves tenants bj
use and occupation, and may be sued for rent, ever
though not registered by the zamindar. Lalui^
Monee v. Sona Monee Dabee 22 W. R. 334
43, . Suit for renlr-

Tenant settled on the land by a trespasser, positior
of — Bengal Tenancy Act, s. 1)7. A suit was brought
by the plaintiffs against a tenant for the entire
rent, making the co-sharer landlords also defendants
to the suit. The defence of the tenant, defendants,
No. 1, was denial of relationship of landlord and
tenant, and payment to the co-sharer landlords
The co-sharer landlords inter alia pleaded that
as the tenant-defendant was settled on the land by
them at a time when they were claiming to be
entitled exclusively to the possession thereof,
under a title derived from their auction purchase,
they must be taken to have been trespassers on the
land so far as the plaintiff's share was concerned, and
that consequently defendant No. 1, who was settled
on the land by them, must also be treated as a tres-
passer as against the plaintiffs. Held, that the
defendant No. 1 could not be treated as a trespassei
as against the plaintiffs, and that the plaintiffs were
entitled to claim rent for use and occupation fron3
the defendant No. 1. Nityanund Ghose v. Kissen
Kishore, W. R. {1S<^^), Act X, !s2 ; Lalun Monee v,
Sonamonee Dabee, 22 W. R. 334 ; Lukhee Kanto
Doss Chowdhry v. Sumeeruddin Lusker, 13 B. L.
R. 243 : 21 W. R- 20S ; Surnomoyee v. Dino Nath
Gir I L R 9 Cede. 90S ; Binad Lai Pakrasi v.
Kahi Pramanik, I. L. R. 20 Calc. 70S, referred to.
AziM Sirdar v. Ramxall Shaha

I. L. L. 25 Calc. 324

44, . Person in pos-
session of land served with notice to quit or pay rent
and remaining. When a person is m possession ot
land without paying rent, and is served by the land-
lord, under whom he previously held, with notice
that he must either quit or pay a reasonable rent,

( 6333 )

DIGEST OF CASES.

{ 6334 )

LANDLOKD AND TENANT— ca/i?r/.

2. CONSTITUTION OF RELATION— <owW.

{b) Acknowledgment of Tenancy by Receipt
OF Rent — contd.

and chooses to remain in possession, he must be taken
to have assented to become a tenant and is liable to
pay rent. Sreegopal Mullick v. Dwakka Nath
Se'in 15 W. B. 520

But see Bukoda Kant Roy v. Radha Churn
Roy 13 W. E. 163

45.

of lease

Receipt of rent — Ratification

48.

Bengal Tenancy

If a person beiny aware tliat another is in
possession claiming to hold under a lease accepts
rent from him, he thereby latifies the lease so far as j
he has the power to do so ; and if he wishes to i
protect himself from the ordinary inference that he
recognizes the lease, he is bound to give distinct I
notice to the tenant that he intends to dispute its j
validity, so as to leave the tenant an opportunity of j
refusing payment. Juggeshtjr Btjttobyal v. i
RooDKo Narain Roy . . 12 W. R. 299

See NuBO Kishen Mookerjee v. Kala Chand
MooKERJEE . . . . 15 W. R. 438

Ra5i Gobind Roy v. Dushoobhooja Debee

18 W. R. 195

46. Transferee of

intermediate tenure. Where rent is recovered with- !
out objection by successive landlords from the trans-
feree of an intermediate tenure from the date of
transfer, such receipt acts as a full and complete ac- J
knowledgment by the proprietor that he accepts the i
new tenant in the place of the old one. Allender
V. Dwarkanath Roy . . 15 W. R. 320

47. Lease granted

: by trespasser — Batification — Acceptance of rent —

^ Transfer of Property Act (IV of 1SS2), s. 107. \
■■ Defendants held under a thika lease granted to
' them by P. In a suit which was subsequently
i brought against P by the vendor of the plaintiff, it
' was held that P had no title. The plaintiff's vendor
had accepted rent from the defendants and showed
; by his conduct that he intended to consider himself
: bound by the terms of the lease and no new lease j
granted. Held, that the lease was not binding on '
' the plaintiff, and the question of ratification did I
not arise, inasmuch as neither the plaintiff nor his |
vendor was in any way privy to the lease which '
was given by P, his adversary who was keeping him \
out of possession. Held, also, that by acceptance i
of the terms of the old lease the relationship of land-
l'"d and tenant could not be created having regard j
he provisions of s. 107, Transfer of Propci ty .\ct. j
1 A Sheo Charan Lal v. Lala Parbhow IJval I
1 C. W. N. 142 '

Act (VIII of i.s.S.5), s. 157 — Dismissal of former

suit for rent. Plaintiff brought this suit to obtain i

a declaiation that he had a right to the land in suit, i
and that the defendant No. 1 was a kursa raiyat

under him, and to recover khas possession upon i

! ejectment of the defendant No. 1 ; plaintiff had |

LANDLORD AND TENANT— con/rf.

2. CONSTITUTION OF RELATION-con<<f.

(&) Acknowledgment of Tenancy by Receipt
OF Rent — contd.

previously brought a suit for rent against the
defendant No. 1, who in that suit denied the
existenceof the relationship of landlord and tenant
between him and the plaintiff, and alleged that a
third party, who was made a defendant in this suit,
was his real landlord ; the rent-suit having Ijeen
dismissed, plaintiff brought the present suit.'and in
the course of the suit plaintiff withdrew the claim
for ejectment and sought for a declaration of his
title to the land and for recovery of rent from
defendant No. I. Held, by Prinsep, O'Kinealy,
and Banerjee, JJ.— That s. 157 of the Bengal
Tenancy Act was applicable to the present case,
and that a right to claim rent may arise under that
section upon the estabhshment of the plaintiff's
right to the land in dispute notwithstanding that his
previous suit for rent was dismissed. Dwarka
Nath Roy v. Ram Chand Aich

L L. R. 26 Calc. 428

3 C. W. N. 266

49. Creatinn new

tenancy. The receipt of rent for 1268 by the land-
lord bars his right to eject the tenant for non-pay-
ment of rent due up to the end of 1267, the receipt
for rent being an affirming of tenancy for that
period. The receipt of rent" for 1268 has the same
effect as if the landlord had at the commencement of
1268 created a new tcnancv. Peerbux v. Mowzah
Ally . W. R. E. B. 10 : 1 Ind, Jur. O. S. 7
Marsh. 25 : 1 Hay 89

50. — Suing for

arrears of rent. A landlord, by taking rent from a
party, and by suing him for arrears of his predeces-
sor's rent, acknowledges him as a tenant, and
cannot eject him, or enhance the rent, except
according to law. Maho.med Az.mfr r. CiirxDEE
Lall Pandey . . . 7 W. R. 250

51. Acknoxdcdgmenf

of nature of tenancy — Receipt of rent o-s from
particular tenure. Where the nature of a tenant's
tenancy and the right of his lessor to create it are in
question, the genuineness of a pottah does not settle
the question : and even where an ow ncr has been re-
ceiving rents under a pottah granteil by a predeces-
sor in title no such receipt can make the lease va!id
and binding against him as to the nature of the
tenanc\' if it were not originally so, unless the receipt
were signed by him acknowledging the nature of the
tenant's tenancy. Bholanath Mittkr v. Kaloo
25 W. E. 222

52.

Permitting oc-

cupation of land and taking rent — Right to resume
land so taken. By permitting a patnidar to take
a quantity of land in addition to what is already
held by him in patni, and by receiving rents from
him for such additional land for a series of years, a
proprietor cannot, in the absence of any kabuliat
from the patnidar or verbal agreement giving hiro

( 6335 )

DIGEST OE CASES.

{ 6336 )

LANDLORD AND TENANT—cowW.

2. CONSTITUTION OF RELATION— corifd.

(b) Acknowledgment op Tenancy by Receipt
OP Rent — contd.

the extra land in perpetual lease, be held to be
debarred from resuming possession. Inshore Bul-

LUBH MiTTER V. BiSTOO ChUNDBR GhOSR

12 W. B. 188

53.

Acquiescence in

■party holding after death of tenant having right of
occupancy. The defendant had been associated in
the occupation and cultivation of certain land with
/, a tenant with a right of occupancy, and after /'«
death continued the occupation and paid rent to the
plaintiits for nine years. Held, that this acquies-
cence in his occupation must be regarded as a
recognition by the plaintiffs of his liavinLr been
associated mth /, and in a suit to eject him, held the
plaintiffs were not entitled to succeed, ('hatoor
Singh v. Heera Kooer . . 5 W. R. 191

54.

Acceptance of

rent from agent. Acceptance of rent from a person
acting as the agent of another is not a recognition
of the agent as a tenant. Banee Lali- v. Ra:m
Bhurose Chowbey . 1 N. W. Ed. 1873, 63

55. Batificuiion of

— Grant prior to Beng. Reg. V of 1812. The
acceptance of rent for forty years ratifies the original
grant of a mokurari pottah granted prior to Regu-
lation V of 1812. Umrithnath ('HownnRv v.
KooNJ Behary Singh . . W. R. F. B. 34

56.

Efject of accept-

ance of rent from tenant holding over — Renewal of
tenancy. "Ry indentm-e, dated 1st February 1856 A
leased certain premises to B in Calcutta for a term
of ten years from 1st November 1855 at a rent of
RlOO per month, payable monthly. A covenanted
with B to grant her on request, to be made within
three months of the expiry of the term, a fresh
lease on the same terras for three years. The defend-
ant in August 1858 became the assignee of the
lease without notice to J, and continued to occupy
the premises and ]»aid the rent in tlie name of B up
to August 1866. No renewal of the lease (which ex-
pired on 31st October 1865) was ever demanded by
B or by any one claiming through her. The plaint-
iffs became A^s representatives in June 1866 and
gave notice to quit in September 1866, from the 1st
November 1866. Held, that the acceptance of rent
by A and his representatives from the defendant
holding over after the expiration of the original
term did not constitute a renewal of the lease for
tliree years. Brojoxauth Multjck v. Weskins

2 Ind. Jur. N. S. 163

57. . Assent by

zamindar to transfer of tenure. By accepting rent
the i^amindar assents to the transfer of a tenure,
whether the whole is sold or a part onlv. Bharut
Roy v. Gungajiarain Moh.\pattur 14 W. R. 211

58.

Alienation by

cultivators— Acceptance of rent from alienee. Al-

LANDLORD AND TENANT— co7itd.

2. CONSTITUTION OP RELATION— co?i<(i.

(b) Acknowledgment op Tenancy by Receipt
op Rent — contd.

though in a mouzaii cultivators may not possess
the right of alienating their holdings, yet, if, with a
knowledge of such an alienation, the zamindar
accepts rent from the alienee, he recognizes the
alienee's position, and is as much bound as if he
had expressly assented to the alienation. Rummun
Singh v. Eshree Pershad . . 2 Agra 144

59. , Recognition of

an under-tenure by the zamindar — Result of his
receiving rent in respect of it— Deposit of rent by
tenure-holder under Bengal Tenancy Act (VIII of
18S5), s. 61, and acceptance by zamindar. A
widow in possession of her ^\■idow's estate in a zamin-
dari made a grant of a patni tenure under it to a
lessee at a rent. In this suit brought by the rever-
sionary heir, on her death, ^\4th the object of having
the grant set aside as invalid as against him, the
patni lease was not proved to have been made with
authority, or from necessity justifying the aliena-
tion by the -widow. Held, that the patni was, on
the death of the widow, only voidable, and not, of
itself void ; so that the plaintiff, the next inheritor
of the zamindari, might then elect to treat it as valid.
The plaintiff had done so. He had accepted rent
in respect of the tenure, as that tenure was specified
in a petition which accompanied the patnidar's
deposit of the rent in a Court under the Bengal
Tenancy Act (VIII of 1885), s. 61. This was priind
facie an admission that the patni was still subsist-
ing. In the absence of evidence to put a different
construction upon the plaintiff's act and ta nega-
tive its effect, there was a sufficient primd facie case
of an election to affirm the validity of the patni.
Modhusudan Singh v. Rooke

I. L. R. 25 Calc. 1

L. R. 24 I. A. 164

1 C. W. N. 433

60. Admission of

status of purchaser from raiyats. Held, that a
zamindar, by taking the rent of the plaintiff's pur-
chased lands after the rent was deposited by him in
the Collector's treasiu-y, virtually admitted the
plaintiff's status as piu'chaser from the former
raiyats, and that he had attorned to him as land-
lord : and that, as this payment M'as made long
before the zamindar sued the former raiyats for
enhanced rent imder Act X of 1859, the decrees
obtained in that suit must have been collusive.

GuDADHUR BeNERJEE v. KHETTERMOHn^r SlTKMAH

7 W. R. 460

61. r ■ Transfer of

tenure — Acceptance of rent from transferee. Where
a tenure is transferred by a raiyat without sanction
of his landlord, and the latter nevertheless receives
rent from the transferee, and gives him daldiilas
for the year in Avhich he is in possession, the
landlord cannot oust him afterwards under a
decree for the rent of previous years. Abdool
Kfreem v. Munsoor Ali . " 12 W. R. 396

( 6337 )

DIGEST OF CASES.

( 6338 )

LANDIiOKD AND TENANT— co«W.
2. CONSTITUTION OF RELATION— co?(/rf.

(6) ACKNOWXEDGMENT OP TENANCY BY RECEIPT

OP Rent — contd.

62. — — — Purchaser at

sale in execution of decree — Leases made after decree.
The purchaser at a sale in execution of a decree
obtained by a mortgagee in satisfaction of his
mortgage-debt is not bound by leases executed
by the mortgagor after decree, unless he has recog-
nized the leases after his purchase by receiving rent
from the lessees as such. Hunooman Doss v.
Koomeeoonissa Begum

W. R. F. B. 40 : 1 Ind. Jur. O. S. 42

S.C. KOOMEEOONISSA BeGUM V. HuNOOMAN

Doss . . Marsh. 122 : 1 Hay 266

', ~ 63, Evidence of

' confirmation of tenure— Giving receipts for rent.
The giving of receipts for rent, coupled with the fact
of payment of rent at the old rate down to the
present time, is evidence of confirmation of the
enure bj' the auction-purchaser and his successor.
Taea Chand Dutt v. Wakenoonissa Bibee

7 W. E. 91

64. Lease by naih of

zamindar — Transfer of tenure. When a zamindar
lispossessed the purchaser of a jungleboory tenure,
:he title of whose vendor was acquired from the
camindar's naib, who had no power to grant such a
jottah -.—Held, that the receipt of rent by the zamin-
lar from the plaintiff and his vendor did not amount
o a ratification of the plaintiii's right to hold under
he pottah transferred to him by the vendor. A
amindar is not bound to recognize tenures not
;eated by himself or by any authorized agent on
is part. BissuMBHUK Pooekaet v. Bhuggobutty
svKs Pooekaet . . W. R. 1864, 292

65. Receipt of rent

■■')ii a person as sarbarahakar — The original tenant's

me also appearing on the receipt as tenant, effect
'leof— Whether it avwunts to recognition of the
rharahakar as tenant. The mere fact of rent
iving been received from a certain person does not
nount to a recognition of that person as a tenant,
iiere the old tenant's name occurred in the rent
ceipts under the heading " tenant's name," and
e name of the purchaser from the tenant occiu-red
der a different heading as sarbarahakar .—Held,
It the landlord by these receipts did not mean to
ognise the purchaser at a tenant. Bhojohurec
ink v. Aka Golam Ali, 16 W. B. 97 ; Gaur Lai
•■knr v. Eaweswar Bhumik, 6 B. L. B. App. 92,
• led on. Gudadhur Banerjee v. Khettur Mohiin
'rmah, 7 W. B. 460; Bam Gclind Boy v.
-^"hoobhoojah Debee, IS W. B. 195, distinguished.

tSAMOY PUEKAIT V. SeINATH MoYBA (1902)

7 C. W. N. 132

Same rent paid
permanent tenancy

Kt long period, not conclusive of ,_ ._ ^

:ngin of lease known— Pottah found to be a muta-
K pottah—Circumstances justifying inference as to

V' mnency. The mere fact of an acceptance of rent ,
VOL III.

LAJTDLORD AND TENANT— con<ci.
2. CONSTITUTION OF RELATION— con<d.

(6) Acknowledgment of Tenancy by Receipt

OP Rent — concld.
at the same rate for a long period of years would not
be conclusive against the landlord to show that the
lease -v^as of a permanent nature, if the origin of the
lease be known. But the circumstances of a
particular case may properly lead to such an
inference, each case depending upon its own
circumstances. In this case the lease, which was
emboded ir a pottah, dated the 9th July 1822,
was, upon the circumstances of the case, held to be
in the nature of a mutation pottah merely and not
one newly granted, and the tenure held to be a
permanent one. J. Winteescale r. Saeat
Chundea Baneejee (1904) . 8 C. W. N. 155

67 (Z of 1859)

5, 77— Landlord and Tenant Act (X of 1869), ss. 77
]53, 155, 160 — Bent suit — Intervener — Decision of
Deputy Collector if appealable to Collector or Zillah
Judge — " Question relating to title to land, ctc.^'
Wherein a suit for rent, another person intervenes
under s. 77 of Act X of 1859, or. the ground that
he had actually and in good faith received and
enjoyed the rent before and up to the commence-
ment of the suit, all that the Deputy Collector
has to determine is which of the two parties, the
plaintiff and the intervener Mas in actual receipt
and enjoyment of the rent and any question of title
is gone into only incidentally for the piu-pose of
deciding the main question. An appeal therefore
lies from the Deputy Collector's decision to the
Collector and not under ss. 153, 155 and 160 of the
Act to the Zillah Judge. Rakhal Patak v.
KuMAE (Raja) Jyoti Peoshad Singh Deo (1909)
13 C. W. N. 599

68. • ^ Suit by land-
lord for possession — Denial of landlord's title by
fenant — Effect of payment of rent — Onus of jyroof —
Payment of rent by agent of tenant — Hoiv far principal
lound — Bent paid by mistake — Adverse possession —
Possession — Acts of ownership on part of unclaimed
land. In 1898 the plaintiff brought this suit,
against the Secretary of State and the Collector of
Salt Revenue, to recover possession of certain land
which had for many years been in actual possession
of the Customs officials of Government, and for
which these officials had paid rent to the plaintiff
and his predecessor. In their written statement
the defendants claimed that the land belonged to
Government, and pleaded that, although it was
true that they had paid rent for some years to the
plaintiff, yet that such payments had been made by
mistake. Held, that the admission by the defend-
ants that they had paid rent to the plaintiff was
sufficient in law to raise a prima facie presump-
tion of title in the plaintiff's favour, and to throw the
onus upon the defendants of proving that the ladd
belonged to Government and that the rent had been

( 6339 )

DIGEST OF CASES.

( 6340 )

LANDLORD AND TENANT— co««.7.

2. CONSTITUTION OF RELATION— concZrf.

OF Rent. — coneld.
paid under a mistake. Vithaldas Kanjishet i\
Secretary of State for India (1901)

I. L. R. 23 Bom. 410

3. OBLIGATION OF LANDLORD TO GIVE
AND MAINTAIN TENANT IN POSSESSION.

Fresumption of ability to

give possession. Whenazainindargivesa lease,
the presumption is that hs is in a position to give
possession of the property leased. Donzelle v.
Tek Narain Singh . 2 W. R., Act X, 103
2. Implied contract for posses-
sion— Peaceable possession. In every agreement
to lease land there is an implied contract that the
lessor will give peaceable possession of the land
leased to the lessee. Munee Dutt Singh v. Camp-
bell IIW. R. 278

Affirmed on review . . 12 W. R. 149

3. Lessee without possession

— Right to rent — Condition precedent. A land-
lord cannot claim rent under a kabuliat wliere the
lessee has never obtained possession, dehvery of
possession being ordinarily a condition necessary for
the maintenance of an action for rent. Hurish

ChUNDER KoONDOO v. MoHINEE MoHFN IMlTTER

9 W. R. 582

ASHRTJFOONISSA BeGUM V. TOSUDDTTOK HoSSEIN

22 W. R. 260
4. Right of tenant to be con-
tinued in quiet possession — Right to rent.
The right of a landlord to receive rent from a
farmer depends upon his securing to the hxtter quiet
possession, and giving him proper and lawful means
of realizing rents from the tenants. Kristo Soon-
DUR Sandyal v. Chunder Nath Roy

15 W. R. 230
5. Possession not obtained by

i — Right to rent. A suit for rent will not
lie where the lessee has never obtained possession of
the land leased to him. Bullen v. Lalit Jha
3 B. L. R. Ap. 119

6. Lessee kept out of posses-
sion— Right to rentr— Dispossession by or through
landlord. A suit for rent will not lie unless the
relation of landlord and tenant be established, and
a tenant cannot be made liable for rent, if it be
established that he has been kept out of the posses-
sion of the tenure by the landlord. Abdool Gun-
nee V. Ivherode Chunder Roy . 2 Hay 409

Abdool Gunnee v. Poorno Chunder Roy

2 Hay 524

7. Dispossession of tenant —

Obligation of landlord to indemnify tenant. In
the absence of any express agreement to the con-
trary, a landlord is under the implied obligation to
indemnify his tenant against ouster or disturbance

LANDLORD AND TENANT— confi.

3. OBLIGATION OF LANDLORD TO GIVE
AND MAINTAIN TENANT IN POSSESSION
— contd.

of possession by his own act, or by the acts of those
who claim under him. or have a right paramount to
his, but not against the wrongful acts of third
parties. Rassam v. Donzelle . 23 W. R. 121

8. Implied covenant for quiet

enjoyment—Inferruption of tenanVs enjoyment
by order of plague officials — Suit for rent. A les-
sor sued to recover from his lessee rent for fifteen
months from 1st August 1897 to Slst October
1898, under an agreement for lease for ten years,
dated 1st September 1890, i.e., prior to the appli-
cation of Transfer of Property Act (IV of IS82)
to Bombay. The defendant contended that in the
agreement there was an implied covenant for quiet
enjoyment, and that, as he had been compelled by
the plague authorities to vacate the premises from
5th February 1898 to 1st April 1898, there had been
a breach of the covenant. He claimed therefore to
deduct the rent for that period or to be allowed it as
a counterclaim as damages for disturbance. Held
(giving judgment for plaintiff), that, even assuming
that in the agreement for the lease a covenant for
quiet enjoyment was to be implied, such a covenant
could only be one for quiet enjoyment by the
defendant so long as it was lawful for him to enjoy
the property. No guarantee against the acts of
Legislature could be read into the implied covenant
for quiet enjoyment. Merwanji Mancherji
Cama v. Ali Khan . I. L. R. 23 Bom. 510

Failure to give possession

— Agreement to give lease — Procedure by tenant.
When consideration- money has been paid for a
patni lease with a view to khas possession and such
possession is not obtained, the proper course is to
repudiate the lease and bring an action imme-
diately. MoKOOND Chunder Roy i'. Prankissen
Paul Chowdhry . . W. R. 1864, 287

10. Lease given without au-

thority a -id afterwards set a,side^Liability
for rent after dispossession. Where a lease was
granted by a Deputy Collector without authority,
and his act set aside by the Collector the tenant,
who was turned out of possession without any
beneficial occupation for the short period of his lease,
was held not to be liable for rent. Kaleb Doss
Banerjee v. Nubeen Chunder Chatterjee

24 W. B. 91

11. Dispossession by stranger

— Liability for rent. A tenant dispossed by any
person not claiming under the landlord is still liable
for the rent ; his remedy is against the wrong-doer
for damages. Gale v. Chedi Jha . 2 Hay 591

12. Failure of lessor to protect

possession of lessee— Liability for rent — Dis-
possession. If a lessor fails by remissness to do that
which he alone can do'to protect his lessee in posses-
sion, even independently of any protective provision

( 6341 )

DIGEST OF CASES.

( 6342 I

IjANDLORD and tenant— conJi.

3. OBLIGATION OF LANDLORD TO GIVE
AND MAINTAIN TENANT IN POSSESSION
— corUd.

in the lease, he cannot claim rent from the lessee in
respect of the portion of the property from which
the latter has been evicted. Wajed Alt ?'. Chfv-

DEABUTTY KOOEREB . . 22 W. R. 542

13.

Disturbance by landlord of

peaceable possession — Su^pen'^ion and appor-
tionment of rent. Where the act of a landlor'l is not
a mere trespass, but something of a graver character,
interfering substantially with the enjoyment, by the
tenant, of the demised property, the tenant is
entitled to a suspension of rent during such inter-
ference, even though there may not be actual
eviction. If such interference be committed in
respect of even of a portion of the property, there
should be no apportionment of rent where the whole
rent is equally chargeable upoa every part of the
land demised. But if the interference is in respect
of only a certain portion of the demised property,
the rent for which is separately assessed, there
should be apportionment. Dhckput SrxoH ".
Mahomed Kazim Ispahain I. L. R. 24 Gale. 298

14.

Failure to keap tenant in

15.

Disturbance by landlord of

pecLceable possession — Suspension and appor-
tionment of rent. A landlord is not entitled to reco-
ver rent for the lands in the possession of a tenant,
who holds a tenure under a lease which reserves rent
at a certain rate per bigha, when he has dispossessed
the tenant from the other lands of the tenure,
inasmuch as it cannot be said that each bigha of
land is separately assessed and separately charge-
able with rent. Dhunput Singh v. Mahomed
Kazim Ispahain, I. L. R. 24 Calc. 296, distin-
guished. Harro Kujiari Chowdhelixi v. PasxA
Chandra Sarboqya (1900)

I. li. R. 28 Calc. 188

entire possession — Surrender by tenant on being \
partly dispossessed — LiaJjility for rent. Where a j
plaintiff brought a suit to recover the rents of some '
lands which he haul leased out to defendant, but j
defendant pleaded that he had reUnquished the
lands because, in a suit brought against him by a '
»i ird party, who claimed a portion of the lands, a j
-e had given the said party possession of the
.•ion claimed by him; and the question arose
■« riLther defendant was justified in relinquishing the i
lands, seeing that this decree had been reversed on .
afipeal, and that defendant, if he had waited, i
would have been put in possession of aU the '
land covered by his lease : — Hel/1, that defendant
■was right in submitting to the decree of a Court of
competent jurisdiction ; that he could not be
expected to content himself with the residue of the
land left untouched by the decree, or to wait for a
decree which might restore the portion taken away
from him ; and that, having given up his lease to
the plaintiS, he was not Uable for anv rents. LvLi
KoswAR V. Carter . . 25 W. R. 492

LANDLORD AND TENANT-^ooic/.

3. OBLIGATION OF LANDLORD TO GIVE
AND MAINTAIN TENANT IN POSSESSION

— conll.

16.

Landlord bound to put

tenant into possession, — A landlord is bound
to put the tenant into possession of the land let to
him. and unless and until he does this he Is not
entitled to the rent. Hurish Chunder Koondoo v.
Mohinee Mohun Hitter, 9 W. R. oS2, referred
to. Shama Prosad Ghose v. TAKt MuLLiK a90n
5 C. W. N. 816

17. Ouster of tenant by para-
mount Owaev^Claim by tervint against his
lessor for compensation for such ouster — Lease —
Covenant for quiet enjoyment — Datnages — Measure
of dam'Mfes^Transfer of Property Act (IV of 1882),
s. 108, cl. (c). The words " without interruption,"
in s. 108, cl. (c), of the Transfer of Property Act
(IV of 1882), give a lessee in India the same rights as
he would have under what is known in England as a
covenant for quiet enjoyment in an unqualified
form. In other words, the lessee is protected
against interruption, by whomsoever it is occasioned-
Where the interruption is caused by the paramount
owner of the property, and not by a stranger, the
lessor is bound to remove the interruption ; and, if
he fails to do so, he must indemnify the lessee. A
held land under a lease granted by B for eleven
years. B had no title to the land, which really
belonged to G. In 1895 G dispossessed A. Held,
that, under cl. (c) of s. 108 of the Transfer of Pro-
perty Act (IV of 1882), A was entitled to recover
compensation from B. Tay\wa »•. Or^RsiTTTnvppA
(1900) . . . . I. L. R. 25 Bom, 289

18. Abatemeat f rent of por-

tioa of land tenant did not obtain ^oa-
session — Se/(7 f? Tewincy Act {VIII of ISSJ), ss.
■33 and -52. Wnere in a suit for rent a tenant,
who did not obtain possession of a portion of the
lands let out to him, pleaded that he was not
bound to pay rent of that portion : — Held, that
he was entitled to say so and it was not neces-
sary for him to bring a separate suit for abatement
of rent. That a suit under ss. 38 and 52 of the
Bengal Tenancy Act was not necessary, as those
sections do not apply, where the tenant has never
been put into possession by the lanllord. Siba
Xumari Debi v. Biprodas P\r, CTiwmrRV
(1908) . . 12 C. W.N. 767

19. Eviction — Dispossession by

landlord, through another lessee — Non-ddioery of
possession — Surspensioa of reni — -.ippo'tionment —
Boundaries specified in lease^-Qurinlity of land
if to he ascertained from boundaries from area
mentioned. Where a lessee was prevented from
taking possession of a portion of the demise land
bv another lessee to whim the sail portion was
de nisei by a subsequent lease. HiH, per Ckitty
./. — -There was no eviction properly so called of the
lessee by the landlord. Per Vijjcest, J. (contra).
— ^There was eviction of the first lessee by the
second by the procurement of the landlord. Dhun-

9 q2

( 6343 )

DIGEST OF CASES.

( 6344 )

I.A'NDI.OED ANT> T:EN ANT— conid.

3. OBLIGATION OF LANDLORD TO GIVE

AND MAINTAIN TENANT IN POSSES-
SION—conc/d.

jmt Singh v. Mahomed Kazim IspaJmin, I. L. R. 24
Calc. 296, Harro Kumari Chowdhrani v. Puma
Chandra Sarbogya, I. L. E. 28 Calc. 188, Kali
Prosanna Khasnabish v. MaiJiura Nath Sen,
I. L. E. 34 Calc. 191, referred to. Per Curiam—
That as the landlord was found not to have acted
mala fide, and the lessee so far from repudiating
the lease kept possession of the remaining portion
and even paid rent subsequently to the creation
of the second lease, the lessee could not, in a
suit for rent by the landlord, ask for a suspen-
sion of the Mhole rent, and was bound to pay
proportionate rent. Quare : Whether the techni-
calities to be found in the English law should be
allowed to affect the relations of landlord and
tenant in this country. Per Chitty, J. — It is true
that speaking generally the boundaries given in a
conveyance are the true criterion of the amount of
land ; conveyed it is not however an absolutely
hard and fast rule ; the true construction to be put
upon a deed is that which will as far as possible
bring its several provisions into harmony \\ith one
another and express most nearly the intention of
the parties. Per Vincent, J. — Where there is a
description of land in a conveyance or lease setting
forth the boundaries and specifying the area, the
land within the boundaries passes by the deed.
Annada Pbosad Mukhopadhya v. Mathuea
Nath Nag Mozumdak (1909) . 13 C. W. IT. 702

4. OBLIGATION OF TENANT TO KEEP

HOLDING DISTINCT.

Confusion of boundaries-

Person holding land on lease and land of his oicn.
A tenant is bound to keep distinct from his own
land during the tenancy, and to leave clearly
distinct at the end of it, the land of his landlord.
Where, OAving to the negligence of the tenant, the
land demised becomes confounded with his own,
the tenant, unless he can ascertain the former, is
bound to deliver to the landlord a portion of the
lands of which the boundaries have been confounded
equal in value to the land demised. Duoappa
Chetti v. Vidhia Puena Tirthasami

I. L. R. 6 Mad. 263

Dooega Kant Mozoojidae v. Eisheshtfr Dutt

Chowdhry . . W. R. 1864, Act X, 44

2. Interference of

Civil Court to fix them. In equity, if through
the default of a tenant or a copy-holder, who is
under an implied obligation to jjreserve the bound-
aries of separate estates which he holds, there arises
a confusion of boundaries, the Court will interfeie as
against such tenant or copy-holder to ascertain and
fix them. In a case in which the boundaries of three
talukhs had been found to be unasccrtainaWe it was
decreed that they should be defined and fixed in such
a manner that the produce of the total land in each

IiAITDIiOIlD AND TENANT— conic?.

4. OBLIGATION OF TENANT TO KEEP
HOLDING DISTINCT^;o7M;;(f.

talukh should bear the same proportion to the jama
payable by such talukh as the produce of the whole
of the said lands bore to the total of the jamas pay-
able on account of the three talukhs. Khemamoye
alias Khemessueee Debia v. Shosee Bhoosun
Gangooly 9 W. R. 95

3. Obliteration of boundary-
marks by ctiltivation — Eiject of, on claim to
rent. A claim to rent for certain land must not be
dismissed merely because the defendant, by planting
indigo, has obliterated the boundary-mark of that
land. It must be ascertained who, by previous en-
joyment, is entitled to receive the rents of the land,
if the plaintiff is not so entitled. Brojonath Roy
V. Gilmore . . . 2 W. R., Act X, 4&

4. Tenant allowing encroach-
ment of tenure — Obliyation of lessee to avoid
dispossession or encroachment on lessor's property.
It is a general principle of law that it is incum-
bent upon every lessee to protect his lessor's pro-
perty from encroachment or unlawful eviction, and-
that, if he fails to do so, he exposes himself to an
action for damages bv his landlord. Prosunno
MoYi Dasi v. Kali Das Roy . 9 C. L. R. 34T

5. ■ — Confusion of boundaries.

Where, owing to the negligence of the tenant, the
land demised becomes confounded with other lands,
the tenant, unless he can ascertain the former, is
bound to make good to the landlord the quantity of
the land to which the latter is entitled. Ismail
Khan Mahomed v. Brought on (1901)

5 C. W. N. 846

5. LIABILITY FOR RENT.

1. Proof of liaibility— Production

and proof of kahuliat. The production of a kabu-
liat and proof of its execution by the tenant is
sufficient to charge him with rent ^^•ithout the pro-
duction of the pottah. Mahomed Hyder Hossein
V. Jeea\vun . . 1 N. W. Ed. 1873, 43

2. Non-completion of contract

—Mad. Regs. XXX of 1:SU2, s. 6, and V of 1822,
s. 9. Where no pottahs and muchalkas have been
exchanged between the parties, occupants of lands
cannot, in accordance with Regulation XXX of 1802,
s. 6, and Regulation V of 1822, s. 9, be sued for its
proceeds, even though they have admitted the
plaintiffs to be the proprietors. Tanuviyan v.
Valanaganda .... 1 Mad. 3

3. — Interruption of tenancy—

Interruption of occupation by landlord. No subse-
quent interruption by A in Pi's occupation and en-
joyment of land would be an answer to A's claim
for rent which had previously accrued. B's evic-
tion by A Mill not relieve him from liability for rent
which accrued due prior to the eviction. Madhub
Chunder Mozoomdar v. Sidhee Nuzeer Ali
Khan . . . . . 8 W. R. 54

( 6345 )

DIGEST OF CASES.

( 6346 )

LANDLORD AND TENANT— con<d.

5. LIABILITY FOR RENT— coa^d.

4. rJispossessicn of

iznant in middle of year — Right to rent accrued
due on interruption of occupation. A landlord, by
dispossessing his tenant in the middle of the year,
does not, in all cases, forfeit his right to rents which
have already accrued due. Whether he does or not
must depend on circumstances, e.;/., upon the ques-
tion whether the raiyat has enjoyed all the year's
profits, 'T has been prevented from enjoying any by
the landlord's act of interference. Bux'^ee Dhhr
Ohose v. Bheem L.4JLL Sahoo . 24 W. R. 219

Dispossession, and

In a suit for rent in

recovery of mesne profits for.
which defendant pleaded that during the period
for which rent was claimed the tenants had been out
of possession of the land, having been ousted by a
third party to whom the zamindars (plaintiffs) had
^ven a lease of the land : — Held, that the zamindars
were precluded from suing defendants for rent on
account of such period, even though the latter had
recovered a decree mth wasilat for the period of dis-
possession. Kadumbinee Dossia v. Kasee-
NAUTH Biswas , . . . 13 W. R. 338

6, ._ Wrongful act of

superior tenure-holders — Ouster. In a suit by a
landlord to recover arrears of rent from tenants who
had been forcibly compelled bv the superior holders
of a tenure over the plaintiff to execute a kabuliat to
themselves and to pay rent accordingly : — Held,
that such wrongful act of the intervenor defendants

j (the superior holders) was not in law sufficient to
constitute an ouster of the plaintiff, but gave the

I tenant defendants a cause of action against them for
damages. Chunder Nath Bhuttachakjee v.
JuGGTjr Chunder Bhottacharjer

I 22 W. R. 337

' 7. Rent after loss of

j possession — Ejectment by zamindar. A zur-i-
peshgidar cannot compel his lessees to pay rent
•when both he and they are evicted by the zamin lar.
; BiSHEN Dyal Singh v. Probhoo Dass 1 W. R. 1
8. — Assignment of right to re-
cover rent — SiihsK/ni lit suit for arrnirs of rent.
A tenant was autlu)rized by his landldiil to pay a
certain portion of his rent to T, a creditor of the
j landlord. T afterwards obtained a decree against
1 the tenant for the amount of rent he was required by
I his landlord to pay to him. The landlord brought a
suit for the entire amount of the arrears. Held,
j that he was entitled to recover only the surplus
beyond the amount for which T had obtained a
_ decree, notwithstanding such decree was unsatisfied.
I Lallah Gour Narain v. Karron Lall Thakoor
I Marsh, 363: 2 Hay 447

I 9. . Rent paid to some one else

with landlord's acquiescence — Subsequent suit
for such rents. A tenant cannot afterwards be held
liable for rents which he pays to a third party (co-
sharer) with the acquiescence of his landlord, ex-
pressed or impUed ; and where the relation of land-

LANDLORD AND TE NANT— contd.

5. LIABILITY FOR RENT— conid.

lord and tenant ceases with the consent of the land-
lord, the landlord cannot again claim rent unless he
shows how or when the relation revived. Muddun
MoHUN Roy Chowdhry v. Chuxder SEKirm
Bhuttachakjee ... 25 W. R, 115

10. Rent between date fixed

for leaving and actual previous departure.
Where there were no terms of agreement settled
between the parties, but the defendant, after occu-
pying the house for a time wrote that he would
vacate the house on the 1st June : — Held, that,
though he actually left on the 16th May, he was
liable for rent up to the 1st June. Ruff c Stokoe

9 W. R. 213

11. Purchaser of house — Notice

of rate of rent — Liahilitii of tenant at fixed rent.
Where the right, title and interest of the owner of a
house are purchased at a sale in execution, and the
purchaser finds the house in the occupation of a
lessee at a fixed rent, his giving the lessee notice
that, after a certain date, he intends to charge him
at a particular rate does not give him a right to rent
at that rate. If not content with the rate fixed in
the lease, he can only get such sum as the Court
finds to be a fair and reasonable rent for the use and
occupation by the defendant ; in deciding what
rate is fair and equitable, the state of the house when
he entered on the occupation and the reasonable
and necessary repairs executed by him since his
entry can be taken into consideration. Fegredo
V. Mahomed Moddessur . . 10 W. R. 267

12. Auction-purchaser of or-
chard from, zamindar — Orchard included in
settled area of village. An auction-purchaser of the
rights and interest of the zamindar in an orchard
cannot be treated by the latter as his raiyat, because
the area of the orchard is included in the settled area
of the village of which he is the proprietor, and a suit
by the latter to impose rent on the garden and for
deUvery of kabuliat is not maintainable. .Mootee
V. Roora 3 Agra 159

13. Purchaser in execution of

decree — Payment for period subsequent to pur-
iJuise— Notice. An auction-purchaser, with notice
of a payment in advance, made by the tenant to the
former proprietors of rent due for a period subse-
quent to the date of purchase, is bound by such
payment. Ram L.all Shaw v. Joggesdrci Xaraix
Roy 18 W. R. 328

14. Purchaser of a portion of

tenure, whether liable for rent before date
of purchase— Jo/ »t? liahlliti/ of purchaser of a
fraction of a tenure. A purchaser of a tenure is not
personally hable for its rent which fell due before
the date of purchase, although the tenure may be
liable for such rent. Ra^h Behary Banlopadkya
V. Peary Mohun Mookerjee, I. L. R. 4 Calc. 346,
followed. Ouitraput Singh v. Girindra Chunder
Roy, I. L. R. 6 Calc. 3S9, and Moharanee Dasya
V. Harendra Lai Roy, 1 C. W. N. 45S, distinguished.

( 6347 )

DIGEST OP CASES.

( 6348 )

LANDLORD AND TENANT— conW.

5. LIABILITY FOR RENT— co«id.

The transferree of a part of a tenure is jointly
liable with his co-sharer for the whole rent, for
although the privity between the parties may be
one of estate only, it is in respect of the whole of the
tenure, though the transfer was of a part, by reason
of the indivisibility of the tenure without the land-
lord's consent. The fact of the lease being for a
limited time does not make any difference. Shib
Das Bandopadhoja v. Baman Das Mooklwpadhya, 8
B. L. R. 237 ; Hare v. Cator, Cowp. 766 ; Halford
V. Hatch, 1 Doug. 182 ; and Cnrtis v. Spitty, 1 Bing.
N. C. 757, distinguished. Kristo Bulluv Ghose v.
Kristo Lai Singh, I. L. E. 16 Calc. 642 ; Chinta-
moni Dutt v. Rash Behari Mondul, I. L. R. 19
Calc. 17 ; and Sourindra Mohun Tagore v. Surno-
moyi, I. L. R. 26 Calc. 103, referred to. Jogemaya
Dassi v. Geindra Nath Mukeejeb

4 C. W. N. 590

15. Purchaser of specific share

— Proportionate liability far rent. The purchaser
of a specific share of a talukh, which with other
talukhs was held by the same jotedar, can be held
liable only for the rent due upon the share purchased
and there can be no difficulty in determining the
rent payable if each tenure has a separate jama.
and each share-holder holds a specific share.
Khema Moyee alia^ Khemessttkee Debia v.
Eadda Peaeee Debia Chowdhrain

8 W. R. 469

16.

Suit for balance of amount

of decree against one tenant only — Biiccess-
ful claim hy another jmrty after decree. Plaintiff,
a patnidar, got a decree for rent against B's wHe,
the ostensible dar-patnidar. Shortly afterwards
B's nephew brought a suit against B for an 8 annas
share of the dar-patni, which he claimed as joint
family property, and obtained a decree. Before this
last decree was executed, the dar-patni was sold to
satisfy the rent decree, but the proceeds Were in-
sufficient. In a suit for the balance remaining due :
^Held, that B and his nephew were jointly hable
for the amount. Peomotho Nath Baneejee v.
Jogendeo Nath Roy . . 12 C. L. R. 15

17.

Assessment

of rent — Land
covered with trees — Act X of 1859, s. 23, cl. 1. Held,
that the defendants, whose proprietary title' at
the time of settlement was recognized in the land
then covered with trees, were not liable to assess-
ment by zamindars, under the provisions of cl. 1,
8. 23, Act X of 1859, on account of the trees having
since disappeared and the land having been brought
into cultivation. Jadoo Rai v. Mahomed Tuquee
1 Agra Rev. 24

See Moosey Khttleeey v. Mahomed Tuqxjee
1 Agra Rev. 3

18. _ Misrepresentation by land-
lord— Cross-suit. A plea that the defendant was
deceived into taking a lease by the misrepresenta-
tion of the plaintiff cannot be pleaded as an answer
to an action for rent. Such a defence should be

LANDLORD AND TENANT— confd.

5. LIABILITY FOR IlBNT—contd.

made'the subject of a cross-suit. Ishree Pershao
Rae^i;. Beharee Lal . . 2 N. W. 243

19. ^ Liability of the transferee^

of a fractional share of patni to pay rent—
Reg. VIII of 1819, s. 6 — Personal liability of patnidar
for rent, nottvithstanding a stipulation in the patni
lease that arrears of rent shotdd he realized hy auction
sale of the patni — Bengal Tenancy Act ( VIII of 1885),
s. 65. Although the transferee of a fractional
share of a patni cannot enforce registration of his
name on payment of the necessary fee and tendeB
of the requisite security, yet the transfer is not alto-
gether void, and he is liable for rent severally and
jointly with the registered tenant, if the landlord
chooses to recognize him as one of the joint holders
of the patni, and he is also liable for the entire rent
of the patni estate. Notwithstanding a stipulation
in the patni lease that on default of any instalment
of rent the landlord shall be entitled to realize the
same by auction sale of the patni mehal, the
patnidar is also personally liable for the rent of the
said mehal. Fotick Chunder Dey Sircar v. Foley;
I. L. R. 15 Calc. 492, and Tarini Prasad Roy v.
Narayan Kumari Dehi, I. L. R. 17 Calc. 301, referred

to. SOURENDRA MOHAN TAGORE V. SURNOMOYI

I. L. R. 26 Calc. 103
3 C. W. N. 33

20,

Tailure to pay Government

assessment — Land Revenue Code (Bom. Act V
of 1879), ss. 56 57, 81, 214 (e) and (i)— Lease
— Forfeiture — Payment of the arrears by tenant
actually in possession — Forfeiture not followed by
sale of occv pancy^Lease not destroyed by the for-
feiture— Tenants liability for rent subseqiunt to
the forfeiture. A registered occupant of land having
failed to pay the arrears of Government revenue, his
occupancy was forfeited under s. 56 of the Land
Revenue Code (Bombay Act V of 1879), but the
forfeiture was not followed by sale of the occupancy,
the Collector having allowed the registered occupant
tenant under a lease to be registered as occupant on
his paying up all arrears of Government revenue due
on the land. Afterwards a question having arisen
as to the tenant's liabhty for rent under the lease
subsequent to the forfeiture : — Held, that the tenant
was liable. When a registered occupant's tenancy
is foreited under s. 56 of the Land Revenue Code,
and that forfeiture is not followed by sale of the
occupancy (the Collector allowing the person
actually in possession to be registered as occupant
on his paying up all arrears of Government revenue
due on the land), the lease by which the person
actually in possession was holding from the former
registered occupant is not destroyed by the for-
feiture, and the lessee is still under liability to his
landlord. Ganparshibai v. Timmaya. Shivappa
V. Halepoit . . I. L. R. 24 Bom. 34
21. Occupancy raiyat dying in-
testate— Liability of the heirs of a deceased occu-
pancy-raiyat to pay rent — Surrender of holding —
Bengal Tenancy Act (VIII of 1885), ss. 5, 26^

( 6349 )

DIGEST OF CASES.

{ 6350

LANDIiOKD AND TENANT— fo7,W.

5. LIABILITY FOR REXr—contd.

afid 86.^ The heirs of an occupancy-raiyat, dying
intestate, are Uable to pay rent, whether they
occupy the land or not, until they surrender the
holding in the manner prescribed by s. b6 of the
Bengal Tenancy Act, 1885. Peary Mohun

MOOKERJEE V. KiTMABIS ChTTNDER SiRKAR

I. Ii. B. 19 Gale. 790
22. Occupancy -tenant — Liability

of holder of right of occwpancy for arrears of rent
which accrued in lifetime of his predecessor. An
occupancy-tenant in possession who has accepted
the occupancy-holding is hable to be sued for
arrears of rent, not barred by limitation, which
accrued in the lifetime of the person from whom the
right of occupancy has devolved on him. Lekhraj
Singh v. Rai Singh . I. L. B. 14 All. 881

Lease to one partner on

behalf of himself and his co-partners — Suit
for rent — MaJcing co-partners parties — Use and
occupation. When one partner A takes a lease of
premises in his own name, though on behalf of the
partnership, and with the assent of his partners B
and C, B and C are not hable to be sued by the
lessor for the rent reserved by the lease. A lease is
not a mere contract ; it is a conveyance, and
effects a transfer of property. The lessee can only
be the person named in the lease. If that person
becomes a lessee on behalf of some one else — as he
may do — the law regards him as a trustee for that
other person, and does not consider that other
person as the lessee, since there is no demise or
conveyance to him. The covenant to pay rent may
be made on behalf of another person, but, as far as
the lessor is concerned, it must be deemed to be only
on behalf of the person to whom the demise is made.
Neither are B and C liable to be sued by the lessor
as for use and occupation of the premises occupied
by them. Having demised the property to A, the
lessor had no power to suffer or permit any one to
occupy the premises during the continuance of the
lease, and therefore the foundation of a claim for
use and occupation was necessarily wUnting.
Ragoonathdas Gopaldas v. Morarji Jutha

I. L. B. 16 Bom. 568
24. Lease — Assignment by OflB.-

cial Liquidator of lease held by a company
in liquidation — Assignmeid not ill trntuig regis-
tered—Transfer of Property Act, s. 'J (d). In the
course of the winding up of a company, the
Official Liquidator, with the sanction of the Couit,
sold the remainder of a lease for a long term of years,
reserving a rent, which was held by the companj'.
No written assignment was ever executed, but the
Official Liquidator handed over the lease to the
purchaser, who entered into possession. In a suit
by the lessoi 3 against the purchaser for rent ; — Held,
that whether the assignment was invalid because not
in writing and registered or whether, it fell within
8. 2 (d) of the Transfer of Property Act (IV of
1882), the defendant, even if not liable as assignee
in law of the lease, was liable for rent as for the

LANDLOBD AND TENANT-<onW.

5. LIABILITY FOR RENT— co»<d.

use and occupation, and under such circumstances
the rent fixed by the lease would be a fair basis for
the amount to be decreed. Gaya Prasad v. Bmj
Nath . . I. L. B. 14 AIL 176

25.

Liability of agent for rent

— Honorary Secretary to a school mainlained by u
foreign society. The plaintiff sued the defendant
to recover possession of a certain house in
Bombay and for arrears of rent. The defendant
pleaded that the house in question was occupied by
the Beni-Israel school of Bombay which was main-
tained by the Anglo-Jewish Association of London,
that he was honorary secretary of the school, and
as such, and not in his personal capacity, had hired
the house, and that he had never paid the rent or ex-
penses of the school out of his o^yn pocket. He con-
tended that he was not liable to be sued pergonall}-.
Held, that the defendant was liable for the rent.
There was nothing to show that the contract for the
house ^\"as made on the personal credit of any one
except the defendan*-. Bhojabhat Aixarakhta v.
Hayem Samuel . . L L. B. 22 Bom. 754

26 Liability of purchaser of

khasgi (private or personal) land of a

khoti sharer — Mortgage of the khoti tak^him
(share) — Sale in execution of a decree on the mort-
gage— Partition among the khoti sharers — Interest
acquired by the purchaser at the execution sale —
Agreement by the mortgagor to be responsible for
the revenue— Agreement coming to an end tiith
the extinction of the equity of redemption. Primd
facie all land not shown to be alienated is liable to
assessment, and the mere fact that no revenue was
paid by a khoti co-sharer in respect of klmsgi
(private or persona!) land in his occupation is not
sufficient to prove its exemption from liability when
it has passed into the hands of a stranger. One -S,
a sharer in a khoti village, mortgaged his khas^gi
land appertaining to his share in the khoti to the
plaintiff, and undertook to pay the Government
dues on it. Plaintiff got a decree on his mortgage,
and in execution the land was sold, and purchased
bv defendant in the year 1878. In the year 1881,
the khoti sharers effected partition. In 1883
defendant took possession of the land. In 1884,
and again in ISS."), S having mortgagetl his takshim
(share), including the khasgi land to plaintiff, the
latter as mortgagee brought a suit to recover makta
(fixed) rent in kind payable for the kha.sgi land
purchased bv the defendant. Held, that as the
partition between the khoti sharers took place after
the execution-sale, only the occupancy of the land
was sold to the defendant, and that the plaintiff was
entitled under the circumstances to recover a fair
assessment. HeU. disallowing the defendant's
contention as to exemption from payment of the'
rent, that the agreement by the mortgagor to be
responsible for the revenue came to an end ^^■ith the
extinction of the equity of retlemplion by the Court-
sale. BaLKRISHNA MhaD.SHET v. ^■ISHVANATH

KeshavJou . I. L E. 19 Bom. 528

( 6351 )

DIGEST OF CASES.

( 6352 )

IjANDLOIID and TENANT— cowW.
5. LIABILITY FOR RENT— co«<(/.
27. Suit for arrears of rent —

Dispossession by landlord — Limitation — Cause of
action — Mesne profits, refund of. M, having been
dispossessed by the landlords from a raiyati holding
purchased by him, brought an action and obtained
a decree for possession and mesne profits. M ob-
tained delivery of possession in execution of decree
in 1891, and in 1892 mesne profits for the years
1295 (1887-88) to the Bhadui season of 1299,
(1891-92) were awarded to him. At the time of the
ascertainment of mesne profits, the landlords claim-
ed to set-off the rent against each year's profits, but
they were referred to a separate suit, and set-off was
not allowed. The present suit for refund of profits
or rent for the period aforesaid was brought in
August 1892, and one of the objections raised was
that the claim to the rents of 1295 and 1296 was
barred by limitation. The plaint alleged that the
cause of action accrued upon the date of ascertain-
meat of profits and the rejection of the claim to set-
off in 1892, and it was urged that at all events it did
not accrue before deliver}' of possession in 1891.
Held, that the objection was valid and the claim to
the rents ia question was barred by limitation.
Swarnamayi v. Shashi Mukhi Barmani, 2 B. L. R.
P. C. 60 : 11 W. R. P. C. 5 : 12 Moo. I. A.
244, and Din Dyal Paramanick v. Radha KisTiori
Debi, 8 B. L. R. 536 : 17 W. R. 415, distinguished.
Kadunibinee Dossia v. Kashinalh Biswas, 13
W. R. 338, followed. Eshan Chunder Roy v.
Khajah Assanoollah, 16 W. R. 79, and Huro Pershad
Roy Chowdhry v. Gopal Das Duft, L. R. 9 I. A. 82 :
I. L. R. 9 Calc. 255, referrerl to. Mah.imed :\Ia.ttd
V. Mahomed Ashan . I. L. R. 23 Cale. 205
28. Liability of representa-
tives— Suit to recover arrears of rent from re-
presentatives of tenant at fixed rates. Held, that
the legal representatives of a deceased tenant at
fixed rate, who had died leaving the rent payable by
him in arrear, A\ere liable for payment of the arrears
to the extent of the assets of the tenant which had
come into their hands, and that this liability was not
aiiected by the question whether or not they took
over the tenancy of the deceased themselves.
Lekhrai Singh v. Rai Singh, I. L. R. 14 All. 381,
referred to. Maharaja of Bemares r. T>.\jjit
Singh . . . . I. JL. R. 19 All. 352

29. Suit for rent by unregis-
tered proprietor— Se«/7. Act VII of 1876, s. 78

— Application for registration as proprietor. S.
78 of the Land Registration Act, 1876, precludes
a person claiming as proprietor from suing a tenant
for rent until his name has been actually registered
as such under the Act. A mere application to be
registered is not suflficient for the purpose. Surya
,Kant Acharya Bahadur v. Hemant Kumari
Devi .... I. L. R. 16 Cale. 706
Dhoroxidhur Sen v. WAJinrNNissA Khatoon
I. L. R. 16 Calc. 708 note

LANDLORD AND TENANT— contd.

5. LIABILITY FOR RENT— co»id.

landlord — Liability to pay rent — Eviction, not
complete. The law does not require that there
should be a complete eviction of the lessee in order
that he may be exempted from liability to pay rent.
Dhunput Singh v. Mahomed Kazim Ispahain,
I. L. R. 24 Calc. 296, approved. A lessor is not
entitled to claim rent from the lessee for the period
during which he wilfully disturbs the lessee's quite
possession. L.ilita Sundari v. Surxomoyee
Dasi (1900) . . . . 5 O. W. N. 353

31.

Co-sharer landlord— 5M?f-

Rent — Variance between pleading and proof —
Converting suit of one nature into one of a different
nature. When a landlord sues for the entire
rent of a holding, but it is found that he is
entitled only to a share of the rent, the suit must be
dismissed, unless his co-sharer landlords are made
parties to it, or an arrangement is proved between
the landlords and the tenant that the latter should
pay each landlord his proportionate share of the
entire rent. Gani Mahomed v. Moran, I. L. R. 4
Calc. 96 : 2 C. L. R. 371, f.jllowed. Nepal Chuxdra.

GhOSE V MOHENDRA NaTH RoY ChOWDHRY (1904)

I. L. R. 31 Calc. 707

32. — . Co-sharers, suit

for rent by — Liability for rent. The plaintiff and
the defendants, being some of the co-owners of a
zamindari, purchased certain holdings under the
zamiidari and were in occupation of separate
portions of them : — Held, the defendants were not,
in the absence of any agreement between them-
selves and the plaintiff to pay him rent, the tenants
of the plaintiff in respect of the lands actually
occupied by them, and were not liable to \ia.y him
rent for "the same. Girixdra Chandra Pal
Chowdhry v. Sbeenath Pal Chowdhry (1905)

I. L. R. 32 Calc. 567

33.

Rate of rent —

30.

Interruption of tenaney-

-RerU-suit — Dislurhance of quiet possession

Decree by a co-sharer landlord, if evidence. A decree
by a co-sharer landlord is not admissible as evidence
as to the rate of rent in a suit brought by another
co-sharer. Abdul Ali v. Raj Chaxdra Das
(1906) .... IOC. W.N. 1084

34. Right of co-sharer

landlords to collect rent jointly — Bengal Tenancy
Act ( VIII of 1055), s. 66. A and B being co-sharer
landlords collected rent from their tenants C and
D separately. Subsequently C and D sold their
interests to E. A and B then demanded rent
from E jointly. E objected on the ground that A
and B having collected their rent separately for
many years, could not now sue jointly. Held, that
there was nothing to prevent the co-sharer landlords
from suing E jointly for their rent, there being no
evidence to show that the former agreement to
collect rent separately was to be perpetual. Shyama
Charan Bhnttacharya v. Akhoy Kumar Mitter, 10
C. W. N. 107, Girish Chunder Mukhopadhyaya v.
Chhatranhar Ghose, 3 C. L. J. 379, followed Gani
Mahomed v. Moran, I. L. R. 4 Calc. 96 ; Gopal
Chandra Das v. Umesh Narain Chowdhury, I. L. Bl

( 6353 )

DIGEST OF CASES.

( 6354 )

liAUDLOBD ANT> TENANT— conid.

5. LIABILITY FOR RENT— conid.

17 Calc. 695, referred to. Raja Pramoda Nath Roy
V. Raja Ramoni Kanta Roy, 9 C. W. N. 34, distin-
guished. Akshoy Kumar Mitra v. Go pal Kamini
Debi (1906) . . I. li. R. 33 Calc. 1010
S.C. 10 C. W. N. 952

35.

Bengal Tenancy

Act {VIII of 1SS5), ss. 65, 159 — Sale in execution of
a decree for arrears of rent at the infitance of a co-
sharer landlord — Intercast of unrecorded tenant how
ejected. An occupancy holding was recorded in the
landlord's books in the names of N, B and T as
tenants. Plaintiff purchased the interest of N and
B. The vahdity of his purchase was established.
Subsequently one of the co-sharer landlords brought
a suit against N, B and T for his share of the rent
and got a decree ; in execution of the decree the
holding was sold and purchased by the 1st defend-
dant. Held, that the 1st defendant purchased only
the right, title and interest of the judgment-debtors.
Afraz Mollah v. Kulsumannessa Bibee (1905)
10 C. W. N. 176

36. ~ Suit for rent by

co-sharer landlord against some of several joint
tenants — Limitation — Maintainability. Art. 2 (6)
of Sch. Ill of the Bengal Tenancy Act applies to a
suit for rent by a co-sharer landlord. A suit for
rent against some of several joint tenants is main-
tainable as joint tenants are jointly and severally
liable. Jogendra Nath Roy v. Nogendra Narain
Nandi (1907) . . .new. N. 1026

37. " Indefiniteness " — Suit for rent

— Objections to pottah — Estoppel by conduct of tenant.
A clause in a pottah providing that, in the event of
the tenant raising wet cultivation on dry land with
■Sircar water he should pay increased rent accord-
ing to the rent of the neighbouring wet lands,
is not bad for indefiniteness. There is a material
distinction between the power of the Court in
•dealing, in suits under s. S or fJQ of the Rent
Recovery Act, with questions wh.ch have not been
settled by contract or specifically provided for by
law, and its power when dealing with a litigation
arising out of a contract constituted by an accepted
pottah. In determining objections founded on the
alleged uncertainty of a term in a contract the test
is not whether the term is in itself certain, but
"whether it is capable of being made certain. A
provision in a pottah that the customary fees
payable by the tenant for the services of the village
accountant and other public servants of the village
would be summarily recovered and charged with
'interest, if in arrcar, is i;ot an improper term.
Senihle : That a tenant may be estopped from
objecting to the terms of a pottah, \\hcre he has
accepted pot tabs containing similar terms for a
series of years previously in respect of the same
holding and has by his conduct led the landlord to
suppose that the pottah would not be objected to.
Sree Sankarachari Swamtar v. Varaox Pnx \t
<1904) . . . . I. L. K. 27 Mad. 332

LANDLORD AND TENANT— conW.
5. LIABILITY FOR RENT— con<(Z.

38.

Repudiation of lease—

Rescission — Suit for rent — Denial of liability to pay
rent on the ground of lessee not obtaining possession,
effect of. Plaintiff brought a suit for a declaration
of her title to and to recover possession of two
villages, which she alleged had been leased to her
by a dar-putni lease by defendant No. 6 who had
obtained a putni lease of the same together with
other villages from the father of defendants Nos.
1 to 5. Defendant No. 1, inter alia, stated that
defendant No. Ghad forf -ited all right to them as in
suits brought by the father of defendants Nos. 1
to 5 for "the rent of those and other villages
covered by the pufni lease, the defendant had
pleaded that he was not bound to pay rent for those
villages as he had never been placed in possession of
them. Held, that the conduct of the defendant
No. 6, the lessee of the qmini lease in the course of
the litigation between him and the father of
defendants Nos. 1 to 5, could not be treated as a
repudiation or rescission of the lease so far as it
covered the villages in suit. Ha"ra Suxdari Debya
V. Jogendra Nath Mozumdar (1905)

9 C. W. N. 387

39. - Dispossession — Liability to

pay rent — Kabuliat received by landlord from sub-
tenant— Disturbance. Where a landlord took
kabuliats from the under-tenants of his tenant,
but the latter was not dispossessed : Held, that the
tenant was liable to pay rent when as a matter of
fact he was not dispossessed and was never dis-
turbed. Srimati Moni v. Kalachan-d (Jharami
(1905) .... 9 C.W.N. 871

40. Apportionment— i?cr!< —

Transfer of lessor's interest by operation of law —
Transfer of Property Act (IV of ISSJ), ss. 2 {d),
36. R was hikim and as such wa-s entitled to certain
mauza^, which were held by -1/ as mortgagee in
possession under him. On the 7th Sraban 1307
FusH R ceased to be hikim and plaintiff became
hikim and took possession of the mauzas by ousting
M. M had collected from the tenants of the
mauzas the entire rent for the year 1307, and
plaintiff brought this suit for a refund of the rent
for the period from the 7th Sraban to the end of the
year 1307. Held, that s. 36 of the Transfer of Pro-
perty Act being inapplicable to the case, having
regard to s. 2 (d) of that Act, the plaintiff's claim
was not sustainable. Satyendra Xalh Thakur v.
Nilkanta. Sin^hi, I. L. R. 21 Calc. 3^3, and Dih^hmi-
narappa v. Melothraman Nair, I. L. R. 20 Mad.
540, referred to. Mathewson r. Shvam >^^>>"kr
SiNHA(I906) . . I. L. B. 33 Calc. 786
41. . Suspension of rent— Dispos-
session by lessee of bind lord. A les.see, who may
have lost possession of a portion of the lands
covered by his lease, is not entitled to suspend
the payment of rent, if the dispossession has been
effected not by the landlord, but by other lessees
under him. DhunpiU Singh v. Mahomed Kazim

( 6355 )

DIGEST OF CASES,

( 6356 )

LANDLORD AND TENANT^confi.

5. LIABILITY FOR REKT—contd.

Ispahain, I. L. R. 24 Cah. 296, and Harro Kumari
Chowdhrani v. Purna Chandra Sarhogya, I. L. R.
28 Calc. ISS, referred to. Kali Prasajjna Khas-
NABisH V. Mathttra Nath Sen (1907)

I. L. R. 34 Calc. 191

42.

Covaj£>rom.iae-~ Renfr—Solenama

—Civil Procedure Code {Act XIV of 1S82), s. 375-
Registration Act (III of 1S77) — Unregistered sole-
nama. Plaintiffs had sued the defendants for
damages for wrongfully taking fish from a jalkar ;
a solenama was filed in the suit in 1893 by which
the plaintiffs agreed to take a smaller sum than the
amount claimed as damages and the defendants
agreed to take a permanent lease of the jalkar from
the plaintiff's at a yearly rental of R4i3 and it was
further provided that so long as the contract was
not completed the defendants would be at liberty
to use the jalkar and would pay rent :trom the
year 1300 B. S. A decree was made on the basis
of the compromise. Held, that although the terms
of the solenama regarding the taking of the lease
could not have been enforced in execution of the
decree, they must be held to be binding on the
defendants as an agreement, that no objection
could be taken to the admissibility of the solenama
on the ground of its being unregistered ; and that
the defendants, ha%'ing been in occupation of the
jalkar after 1893, were bound to pay rent to the
plaintiffs under the terms of the solenama. Jasi-
MUDDiN Biswas v. Bhuban Jelini (1907)

I. L. R. 34 Calc. 456

43. Tavtition— Landlord and tenant

— Landlord jointly interested in holding — Partition,
if effects a division of the holding. Plaintiff' held
land in joint tenancy with the defendants under
herseff as the landlord. The shares of the plaint-
iff and the defendants having been separated by
partition, the defendants contended that the
plaintiff could not sue them for rent jointly, but
must bring a separate suit against each tenant :
Held, that there was only a division of the land and
not a division of the holding and the tenants
remained jointly liable to the landlord for the
entire rent. Dukh Harax Sijcgh v. Mussammat
BiBEE SoGHEA (1908) . „j . 12 C. "W. N. 568

44. Sale — Landlord and tenant —

Lessee— Lessor. Where the lessee agreed with his
lessor to pay rent due by.the latter to the superior
landlord, but failed, and the superior landlord then
recovered a decree for rent against the lessor and
sold his interest in the lease-hold property in execu-
tion of the decree -.—Held, that the sale was not the
natural consequence of the lessee's default, as the
lessor ought to have paid the rent due to the
superior landlord when he came to know of the
lessee's default, and the lessee should not be made
liable for the value of the property sold. Girish
Chandra Das Mazumdar v. Kunjo Behari Malo
(1908) . . . I. L. R. 35 Calc. 683
B.C. 12 C. "W. N. 628

LANDLORD AND TENANT— conW.
5. LIABILITY FOR RENT— cowcZrf.

45.

Concurrent leases — Landlord

entitled to recover rent only as against second les see.
Held, that where a lessor executes two concurrent
leases of the same property, that is to say, two
leases in which the terra of the second commences
before the term of the first has expired, the second
lessee is to be taken as the assignee of the lessor's
interest during the concurrent portion of the
terms, and the lessor after the execution of the
second lease can recover rent only from the second
and not from the first lessee. Harmer v. Bean, 3
C. dh K. 307, followed. Ra^i Anant Singh v.
Shankar Singh (1908) . I. L. R. 30 AIL 369

46. Attachment for larger

amount than due — Distraint for larger amount
than u'hatis due not void, but will be good for a^nount
actually due. An attachment under the Rent Reco-
very Act by the landlord for a larger amount than
what is actually due is not_, when the patta claiming
the larger amount is not altered by the Court, alto-
gether invalid, but will hold good for the amount
actually due. It may be different in the case of •
actual sale because by a sale the property of the
tenant passes away from the tenant altogether,
while in the case of an excessive attachment the
aggrieved tenant can apply to the Collector for
redress. Pichu Ayyangar v. Oliver, I. L. R. 26
31 ad. 260, distinguished. Ramchandra v. Nara-
yanasawmy, I. L. R. 10 Mad. 229, followed. Peria-
karuppa Pillai v. Manager of the Lessees Off
the Sivaganga Zamindari (1907)

I. L. R. 31 Mad. 22

47.

Encroachment by tenant—

Limitation Act {XV of 1877), Sch. II, Arts. 142,
144 — Encroachment by tenant on adjoining land —
Landlord's suit to recover — Onus — Adverse possession
to be proved by tenant. If a tenant encroaches on
the adjoining land of his landlord, he must distinctly
prove adverse possession and such adverse possession
must be set up in defence to the suit. It must be
shown that there was not merely possession but
that such possession was with notice to the landlord
and was known by the parties to be a trespass.
Art. 142 of Sch. II of the Limitation Act (XV of
1877) has no application to such a case. Nuddyar
Chand SJuiha v. Meajan, I. L. R. 10 Calc. 820,
followed. Krishna Govinda Jawadar v. Banka
Behari Shah a (1908) . . 13 C. W. N. 698

6. RENT IN KIND.
— , Suit for share of rent or

money-equivalent—F«/«a<wM o/cro^. A land-
lord sued his tenant, paying rent in kind, for the
share of the crop due to him, or rent, or for its money-
equivalent. Held, that the prices at which the
landlord was entitled to have crop valued were
those which prevailed at the time the crop was cut,
and when it should have been made over to him.
Lachman Prasad v. Holas Mahtoon

2 B. L R. Ap. 27 : 11 W. R. 151

( 6357 )

DIGEST OF CASES.

( 6358 )

LANDLOED AND TENANT— confi.
6. RENT IN KIND— concR

2. ^ Kent in kind, demand for

—Landlord nv^ tenant. Acquiescence in a mode of
payment different from that agreed on cannot alter
the original contract. A landlord may demand pay-
ment of rent in kind in accordance with the original
contract, although the tenant has paid rent in money
for some years. Sohobut Ali v. Abdool Ali

3 C. W. N. 151

3. Conversion of nakdi into

bhaoli— i?oa(/ and Public Works Cess Act (Beng.
IX of ISSO), s. 4 Explanation, and s. 20 [a) and
(6) — Road-cess return — Conversion of nakdi into
bhaoli rent shortly before return submitted — Anmial
value how to he assessed — Alteration in area of
holdings and tenures by reason of exchange amongst
tenants, if must be specified in return. The plaintiff
who had a share in a mouzah had his share sep-
arated by partition in 1300, F. S. Subsequently to
the partition, the defendants who were tenants
and were paying nakdi rent agreed to pay bhaoli
rent from the beginning of 1302, F. S. It also
appears that after the partition the tenants of the
•whole estate agreed amongst themselves to respec-
tively hold lands in that share only in which they
held homestead lands and in this way an exchange
of lands took place between them. On the 4th of
Assin 1302, F. S., the plaintiffs submitted a road-
cess return in respect of their separated share, in
which the nakdi rents which prevailed up to the end
of 1301, F. S., and not the recently settled bhaoli
rents were mentioned. Further, the statement of
land, holding on tenure given in the return, corre-
sponded with the state of things as they existed
prior to the exchange effected between the tenants.
Plaintiffs having sued the defendants for bhaoli
rents calculated on lands held by them since the
exchange, the defendants objected that the pro-
visions of els. (a) and (6) of s. 20 of the Road and
Pvblic Works Cess Act had not been comphed with.
Held, that as there was no enhancen ent of rent,
but only conversion of nnhli into bh/oU rent and
as no calculation of annual value based on the
average money value of three years' bhaoli rent as
contemplated in the explanation to s. 4 of the Act
was possible in this case, the plaintiffs had sub-

I stantially comphed with the provisions of s. 20,
cl. (b) of the Act. That cl. (a) of the section had
also been complied with inasmuch as all the lands
for which rent was payable were mentioned in the
return, although it appeared that by reason of the
exchange of lands amongst the tenants, the land
for the rent of which each of the defendants was
sued in this case was greater than that shown in
the road-cess return. Gouri Sakan Mahto v.
MoTTLVi Mahomed Latif (1906)

11 C. W. N. 211

7. TENANCY FOR IMMORAL PURPOSE.

Lodgings let to prostitute—

Suit for reyU of. A landlord cannot recover the rent

LANDLORD AND TENANT— <;on«.

7. TENANCY FOR IMMORAL PURPOSE—

coned,
of lodgings knowingly let to a prostitute who carries
on her vocation there. Gacbinath Mooker.tee v.
Madhumani Peshakar . 9 B. L. R. A p. 37

S.O. GoimiNATH MOOKERJEE V. MODntTMAKI

Peshkar . . . . 18 W. R. 445

8. PAYMENT OF RENT.
(a) Generally.

1. Payment to co-lessors after

distress — Claim for rent — H Anne c. M — Distress
— Co-landlords. Two daughters, as co-partners,
were owners of certain property, each havmg an
eight annas share therein. On June 30th, 1868,
they executed a lease of the property, in which it
was provided that a monthly rent should be paid in
separate payments to each of the two owners
respectively, they giving separate receipts for the
same. The tenant having failed to pay rent, one
of the owners brought a suit for her share in her
own name only, and obtained a decree. In execu-
tion of this decree, she seized and sold property
belonging to the tenant. 1'he sale took place on
the 1 2th of February 1869. On the loth of Febru-
ary the other owner brought an inter-pleader suit,
the tenant having hkewise failed to pay rent to her.
She claimed to have what was due to her paid out
of the proceeds realized by the sale under the
decree. Held, that she was not entitled to have
it so paid. Held, also, per Peacock, C.J. — The
Stat. 8 Anne, c. 14, does not apply to this country.
Held, that it would not, at any rate, apply to a
case in which a claimant seeks to enforce payment
of her rent from another creditor for rent, even if it
would where the claim was against an ordinary
execution-creditor. Padamani Dasi r. Jaoa-
DAMBA Dasi . . . 3 B. L. R. O. C. 56

2. Payment to superior land-
lord after grant of intermediate \e&&6— Pay-
ment without notice of assignment — Liability to ui-
termediate tenant. A tenant paying rent to the
superior landlord, after the grant of an intermediate
lease, but without notice of it, is not liable to the in-
termediate lessee in rcsfect of the same rent. At-
tafyee ]\1o\vlah v. SrKHAWiT Ally

Marsh, 102 : W. R. F. B. 30 : 1 Hay 24C>
3^ _ Payment to a third person

by ' landlord's directions i^/^/ of jxiyment.
Payment by a tenant under the landlord's directions
to another,"^or for a special purpose, of a sum equiva-
lent to the amount claimed as rent, is tantamount to
a payment to the landlord himself, and is a sufficient
answer to the landlord's suit for rent. Such a
defence, being rather one of payment than of a set
off, W£!S open to a defendant in a suit under Act X of
1859. Joy Kooer v. FrRLOxo

W. R 1864, Act X, 112

4. . Payment by tenant of reve-
nue to save estate from sale — Payment or «eft-

( 6359 )

DIGEST OF CASES.

( 6360 )

iANDLORD AND TEN ANT— conW.
S. PAYMENT OF RE^T—contd.
(a) Generally — contd-
off in -suit for rent. Where a tenant is left in that
condition in which he is compelled to pay his land-
lord's debt to save his own security from forfeiture,
the circumstances constitute a sufficient authority
to make the payment, — e.g., the payment of Govern-
ment revenue to save the estate from sale, — and it
will be treated as a payment to the landlord in a suit
for rent. Hills v. Wooma Moyee Bfr-vionee

15 W. R. 545

5. Presumption of payment

of rent for former years — Suit for rent of cur-
rent year — Beng. Reg. VII of 1799. Under Regu-
lation VII of 1790, a plaintiff could only sue for and
recover the rent of the current year. No legal pre-
sumption arose from his doing so that the rent of
prior years had been satisfied. Mirtherjeet
yiNGH V. Choker Narain Singh . 2 "W. R. 58

6. Presumption of payment of

rent — Payment of rent of subsequent year, effect
of. The payment of the entire rent of a subsequent
year affords a presumption in favour of the payment
■ of the rent for the previous year. Solano v. Dool-
HiN- Umrit Koer . W. R. 1864, Act X, 65

SOKUTH SOOXOERY DaBEE

Brodie

1 W. R. 274

7. Appropriation of payments

— Arrears and current rent — Un-specified payment.
A paj'ment for rent should be credited to the oldest
rents first, and not to current rent, unless so specifi-
cally stated by the partv making; it. Surnomoye
V. SiimHRoop Bibee . W. R. 1864, Act X, 133

8. , Payment to one of joint

-lessors. Payment to one of several joint pro-
prietors is a payment to all. Oodit Narain Singh
V. Hudson . . . 2 W. R., Act X, 15

Ramnath Singh v. Gondee Singh.

10 W. R. 441
Sambhu v. Kamolrao Vithalrao.

I. L. R. 22 Bom. 794
And payment by one of several joint lessees is pa}'-
ment by all. Nilltjmbhur Mastophy v. Doorga
Churn Biswas . . 2 W. R., Act X, 94

9. Discharge of debt-

Payment of rent by the lessee to one of several joint
lessors, ana at his request, discharges the debt as to
all, as also payment made at his request to one of
several joint creditors. Krishnabav Ramchan-
dra v. Manaji bin Sayaji . . 11 Bom. 106

10. Presumption of mode of

payment. \\Tiere it does not appear that rent is
payable in instalments, it must be assumed to be
payable annually. Surreshoollah v. Ram Coo-
mar Goopta . . . . 25 "W. R. 556

IL Obligation as to mode of

payment — Instalments. Where a patnidar's rent
i; payable in monthly instalments, he agreeing to
pay the revenue out of the rent and to file the
Collector's receipts as payment, he is not entitled

LANDLORD AND TENANT— conid.
8. PAYMENT OF RENT— c^n(.i.
(a) Generally — conoid.
to deduct from an instalment of rent ^jr?- po'-tioa
of the Government revenue which may not be pay-
able until after the instalment is due. He is bound
to pay either in cash or partly in revenue receipts ;
failing to pay in both shapes, he may be sued for an
arrear of rent. Radhamonee Chowdhrain v.
Gray 12 W. R. 295

12.

Place of payment— Ben^ai

Tenancy Act (VIII of 1S85), ss. 64, 87— Interest-
Arrears of rent. The tenants, residents of Calcutta,
were mokm-aridars of a village in Midnapur, ^here
the landlord had no office for collecting rent and the
tenants refused to continue to pay rent at landlord's
residence in Burdwan and offered to pay the same at
Calcutta. The landlord did not appoint a convenient
place, and the tenants were in arrears ^^hich the
landlord now sued to recover with interest. Held,
that a tenant's liability to pay rent remains not-
withstanding that the landlord has no village office,
and that he has not appointed a convenient place
for paj-ment. Where there is no controlling agree-
ment, the tenant must go to his landlord and pay
the rent as it falls due. Rent falling into arrears
under such circumstances will carry interest under
s. 67 of the Bengal Tenancy Act. Quaere : Whether
s. 54 (2) of the Bengal Tenancy Act applies to the
circumstances of this case. Fakir T^at, Goswami
V. BoNNERJi . . . 4 C.W.N. 324

13.

Claim by assignee of ten-

ant-for-life for rent — Lease by teruint-for-life —
Rent payable during month — Death of tenant-for-life
prior to end of moyith — Apportionment. A tenant-
for-life leased immoveable jaroperty to tenants at a
rent which was payable in half-yearly instalments.
Four days before an instalment was due, the tenant-
for-life died, and the assignee of his interest sued
the tenants for the rent. Held, that he was
entitled to recover. Per Subrahmania Ayyar,
J. — In the absence of a specilic rule applicable to
cases like this, in India, the Com-ts are entitled
to follow the hroad and just principle underlying
the English Statute law, which culminated in the
Apportionment Act of 1870, and hold that, as a
matter of equity and good conscience, the assignee
of the tcnant-fof-life was entitled to an apportion-
ment to the rent due up to the date of the death of
the tenant-for-life. Per Davies, J.— The assignee
of the tenant-for-life was entitled to recover, on the
ground that the half-yearh instalment had fallen
due prior to the death of the tenant-for-life, though
the right to sue for it might not have accrued until
four days after. Lakshminaranapppa v. JIkloth-
RAMAN Nair (1902) . 1. li. R. 26 Mad. 540

(6) Non-payment.

14. Appointment of sezawal

on default in payment — Determination of ten-
ancy. It was stipulated in defendant's lease that.

( 6361 )

DIGEST OF CASES.

( 6362 )

LANDLORD AND TENANT— conW-

8. PAYMENT OF RENT— contd.

(b) Non-payment — contd.

on his failing to pay any instalment of the rent,
plaintiff might appoint a sezawal to collect direct
from the under-tenants. Held, that the appoint-
ment of such a sezawal did not determine defend-
ant's lease, and that he was still liable for any
deficiency in the rent after the sezawal 's collections
were credited. Fakiruddin Mahomkd A.shan v.
Phillips . 3 B. L. R. Ap. 53 : 11 W. R. 464

Omritnath Tewaree v. Buggoo Sixgh

W. R. 1864, 269

(Contra) Daxrymple v. Bkajan Saha

3 B. L. R. Ap. 54 note

Jhoomuck Chowdhry v. Anderson

6 W. R. Act X, 23

15.

A kabuliat.

after the usual stipulations, provided for the can-
cellation of the lease on the tenant failing to pay
any of the instalments, rnd left it optional with the
zamindar to appoint a seza\val to collect the rents.
The tenant having defaulted in payment of rent, a
sezawal was appointed. Held, that the lease
having been cancelled by the default, the appoint-
ment of a seza^\■al had reference only to the back
rents to be collected. Radha Pershad Singh v.
Bajhawun Oopadhya . . 24 W. R. 116

16. .. Effect of non-payment—

Onus prohandi — Sjtit for rent. When the relation-
ship of landlord and tenant has once been proved to
I exist, the mere non-payment of rent, though for
I many years, is not sufficient to show that the re-
lationship has ceased ; and a tenant who is sued for
rent and contends that such relationship has ceased
is bound to prove that fact by some affii-mative
proof, and more especially is he so bound when he
does not expressly deny that he still continues to
hold the land in question in the suit. Rungo
Lall Mundul v. Abdool Gfffoor /

I. L. R. 4 Calc. 314 : 3 C. L/R. 119

Adverse possession. Mere

non-payment of rent to the landlord does not
render possession by tenants adverse to the land-
lord. Ganoabai v. Kalapa Dari Makrva

I. L. R. 9 Bom. 419

18.

Onus probandi

— Suit for reyit — Adverse possession. Where the
!■ lation of landlord and tenant is proved to have
existed, it lies on the defendant in possession of the
j land to prove that the relation was put an end to at
1 such a period anterior to the suit as would entitle
the defendant to rely on his possession as adverse to
The plaintiff for twelve 3'ears. Non-payment of rent
for upwards of twelve years and a grant of a pottah
1 by Government to defendant for five years do not,
1 when Government claims no interest adverse to
plaintiff and i^laintift' does not consent to defendant
becoming tenant to Government, create any pos-
session in defendant adverse to plaintiff. Rungo

LANDLORD AND TENANT-^onirf.

8. PAYMENT OF RENT— con<</.

(b) Non-payment — contd.

Lall Mundul v. Abdool Guffoor, I. L. R. 4 Calc.
314, approved. Tiruchurna Parumal Nadan v.
Sanguvien . . I. L. R. 3 Mad. US

Hari Vasudeb v. MahadaJi Appaji

5 Bom. A. C. 85

19. Adverse posses-
sion. Non-payment of rent by tenant for more
than twelve years does not constitute adverse po-sses-
sion. When posse-ssion may be referred to the con-
tract of tenancy under which the tenant entered,
mere length of enjoyment without payment of rent
dees not, under ordinary circumstances, affect the
relation of parties. Dadoba v. Krishna

I. L. R. 7 Bom. 34

Mahomed Inayetoolla i'. Akber Alt

2 Agra 25

Troylukho Tarinee Dossia v. Mohtma Chi-n-
DER MtrxTUCK . . . . 7 W. R. 400

Davis v. Abdool Hamed . . 8 W. R. 55

20.

Adverse

posses-

sion.— The plaintiff sued for possession of a piece of
ground alleging that he was the owner of it. The
defendant, denied the plaintiff's title and claimed
ownership iiv themselves. The Subordinate Judge
found that the plaintiff had originally held the pro-
pertjr from the defendants, but that, as he had occu-
pied it for more than twelve years without paying
any rent or acknowledging the defendants as his
landlords, he was entitled to be considered as owner
by adverse possession. The District Judge, in ap-
peal, upheld the decree of the first Court. On
appeal to the High Court : Held, that the District
Judge was wrong in holding that mere non-pay-
payment of rent was sufficient to constitute adverse
possession. Tattia f. Sadashiv

I. L. R. 7 Bom. 40

21. ■ — Non-payment of

rent by occupancy raiyat — Title to land — Admission
by tenant of liability to pay rent — Limitation.
The non-payment of rent for a term of twelve years
and more does not relieve an occupancy raiyat from
the status of a tenant so as to give him a title to
the land. Rent falls due at certain periods and the
failure to pay it becomes a recurring cause of action,
and therefore, where the right to take rent is admit-
ted by the raiyat, no question of limitation can
arise. Pobesh Nabain Roy v. Kassi Chcxder
Talukhdab . . L L. R. 4 Calc. 661

22. ■ Adverse posses-
sion— Determination of tenancy. The plaintiffs in
this suit, alleging that S, through whom they
claimed, had given B, who was represented by the
defendants in July 1828, the lease of a certain house
on the condition that B should pay a certain annual
rent for such house, and if he failed to pay such
rent that he should vacate the house, such con-
ditions being contained in a keraianama executed
by B in S's favour, sued the defendanta for the rent

( 6363 )

DIGEST OF CASES.

( 6364^')

liANDLORD AND TENANT— co»<d.
8. PAYMENT OF RENT— cowiti.

(b) NON-PAYMBNT — COtUd.
of such house for two years, and for possession of
the same, alleging the breach of such condition.
Held (Spankie, J., dissenting), that, supposing that
a tenancy had arisen in the manner alleged, the
mere non-payment of rent by the defendants for
twelve years prior to the institution of the suit
would not suffice to establish that the tenancy
had determined, and that the defendants had ob-
tained a title by adverse possession, so as to defeat
the claim ; for if once the relation of landlord and
tenant were established, it was for defendants to
establish its determination by affirmative proof,
over and above the mere failure to piv rent. Prem
SuKH Das v. Bhupia . I L. R. 2 All. 517

23. Surrender by inamdar—

Acquiescence of landlord, effect of — -Subsequent suit by
Imullord for possession — Inam land — Sub-alienee —
Wrongful surrender bif the village inamdar to Govern-
ment^-Limitation^Rem^md. The plaintiff, a sub-
alienee from an inamdar of certain inam, leased it to
D prior to the year 1858. In 1860, the land was
wrongfully surrendered by the inamdars of the vil-
lage to Government as lapsed old service inam and
was made khalsat. In 1863, the plaintiff protested
against this being done : and the Collector referred
him to a civil suit against the inamdars. From the
year 1863, the plaintiff received no rent from D or
after D's death from his heirs, who paid the assess-
ment to Government. In 1889, the plaintiff brought
the present suit against the representatives of D and
the village inamdars to recover possession. The
District Judge dismissed the suit on the ground that
the plaintiff must be held to have acquiesced in the
loss of the land, and by his conduct since 1863 must
be taken to have designedly abandoned all his in-
terest in the land, and that his suit was barred.
Held, that the plaintiff did not acquiesce in the sur-
render by the inamdar in 1860 to Government, as he
distinctly protested against it in 1863. and that as
to his conduct since 1863 nothing had taken place
to deprive him of such legal rights as he possessed
against the tenant in 1863, if they were not barred
by the Statute of Limitation ; and as to limitafton :-
He^d, that, as the District Judge had decided the
point under the influence of the view taken by him
as to the plaintiff's conduct, the case should be re-
manded for a fresh finding on that point. Held,
further, that the more circumstance that D, after
the land was treated as khalsat, paid assessment
to Government, and had not paid rent to plaintiff,
could not affect the relationship of landlord and
tenant which admittedly existed between them in
1863. Rambhat v. Bababhat

I. L. R, 18 Bom. 250

24. Relinquishment — Dilmnon,

disappearance of land by — Subsequent re-appearance
of land — Relinquishment of tenancy, evidence of
—N.-W. P. Rent Act {XH of 18S1). Act XII of
1881, and the Acts of a like nature which preceded
i^, assume that a tenancy of agricultural lands once

LANDLORD AND TENANT— conii.
8. PAYMENT OF RENT— cowcZrf.
(6) Non-payment— coricZd.
entered upon continues until determined by efflux-
ion of time, or by mutual consent, or in one of the
ways provided for by statutory enactment, but
mere non-payment of rent does not of itself de-
termine the tenancy. Hence where the lands of
certain tenants became submerged by the action of a
river, and the tenants, though they ceased to pay
rent during the period of the submersion, made no
overt indication of their intention to relinquish the
said lands, but, on the contrary, on the river again
shifting its course, laid claim to lands which had
emerged, and which they alleged to be identical
with their former holding : He'.d, that there had
been no relinquishment. Hemnath Dutt v.
Ashgur Sirdar, I. L. B. 4palc. 894, not followed.
Mazhab Rai y. Ramgat Singh

I. li. R. 18 All. 290

25. ■ Site in abadi occupied by

non-agricultural tenant — Adverse possession —
License— Indian Easements Act {V of 1S82), s. 60.
A person who was neither an agricultural tenant
nor a village handicraftsman was found in posses-
sion of a house in the abadi which he and his
predecessors in title had held for a period of con-
siderably more than twelve years, without paying
rent or acknowledging in any way the title of the
zemindar to the site upon which it wis built. He'd,
that such person had acquired the absolute owner-
ship of the site. BaADDAB v. Khair-ctd-din
HusAiN (1903) . . I. L. R. 29 All. 13

). NATURE OF TENANCY.

Presumption as to nature
of tenancy — Ye-jrly tznint. Where there is no-
thing to show on what tenure a tenant holds from
his landlord, the presumption is that he is a yearly
tena.it. Endar Lala v. L^vlltj Hort

7 Bom. A. C. HI

GOOBDIAL V. RaMDUT

Agra F. B. 15 Ed. 1874, 11

2. ■ Holding for long

period with payment of reat— Tenancy from
year to year. In a suit to recover a village alleged by.
the (jlxintiff to have been let to defendant on service
tenure by the ancestor of the plaintiff, and to be re-
turnable at the pleasure of a successor, the only facts
proved in evidence were a holding for a long period
of years, and a payment of rent to the plaintiff, the
zamindar. Held, that such facts established merely
a tenancy from .-year to year. Vasudeva Patbudu

('. SaNYASIBAZ PeDDABALIYABA SIMHXJL0

3 Mad. 1
Long continuance of a

tenancy at a low and unvaried rent — Zamin-
dar s right against tenant — Origin and special
purpose of the tenancy — Cessation to use the land
for such purpose — Burden of proving permanent
tenure — Inference of tenancy -at-will, or from year

( 6365 )

DIGEST OF CASES.

( 6366 )

LATSTDLORD AND TENANT— con^d.

9. NATURE OF TENANCY— co«<d.

to year. The evidence having shown the origin
and particular purpose of a tenancy, long con-
tinued at a low and unvaried rent, viz., from 1798
until 1873, when the tenant ceased to use the land
for the piu-pose. Held, that it was not to be inferred
from that evidence that an agreement had been
made between the parties that the tenant should
hold a permanent tenure ; and, held, that on such
cessation the tenant could only resist a suit to eject
him by proving, or giving grounds for the inference
of, an agreement with the owner of th; land that he
should have something more of a lease than the
ordinary tenancy-at-will or from year to year ; also
that the facts here presented did not lead to that
inference. Secretary of State for Ixdia v.
LucHMEiWAR Singh . I. L. R. 16 Cale. 223
L. R. 16 I. A. 6

4. Lease for construetiou of

permanent works — Permanent tenure — Conduct
01 /cMo/-. The ck'»'eridants and their predecessors
in title held of the pl'intiffs and their predeces-
SO--^ oe.-tain land under a pottah which, though not
«xpresdy stated to grant a permanent lease, was
granted for the purpose of constructing " a brick-
built dock, building, etc., and workshops." The
works were constructed ; and during a period of 42
years the interest of the lessees were from time to
time transferred without any conduct on the part of
the lessors or their successors, indicating that they
regarded the interest of the lessees as not perma-
nent. Some years after the constructioa of the
dock it ceased to be used as such. He!d, that the
tenm'e created by the pottah was of a permanent
nature. Secretary of State for India v. Luchmesicur
Singh, I. L. R. 16 Gale. 223 : L. R. U I. A. d,
-distinguished. RuxGO Lall Lohea v. Wilsox

I. li. R. 26 Ca.e. 204
2 C. W. N. 718

°- ~ Perpetual tenancy— Xon^

possession — Presumption arising from sucly posses-
sion— Bombay Land Revenue Act ( V of ISt 9), s. 83
—-Burden of proof. The plaintiS's predecessor in
title acquired the lands in dispute in A. D. 1780.
The defendants were in possession as tenants. They
proved their possession so far back as 1812. But
it did not appear that they were put in possession
first in that year. There was no evidence eicher
of the commencement or of the dura^on of their
tenancy. Held, that, under s. 83 of the Bombay
Land Revenue Code (Bombay Act V of 1879),
the defendants' tenancy should be presumed to
be perpetual, and that it lay on the plaintiff
to prove the contrary. Dadlata v. Sakharam
Oaxgadhar . . I. L. R. 14 Bom. 392

Tenure in property, proof

of— Long possession at an invariable rent — Local
usage or custom. A tenure in perpetuity cannot be
established merely by evidence of long possession at
an invariable rent, unless it appears that such
tenancy may be so acquired by local usage. Babaji

LANDLORD AND TENANT— contd.

9. NATURE OF TENANCY— con^d.

V. Narayan, 1. L. R. 3 Bom. 340, referred to.
Narayanbhat v. Davlata

I L. R. 15 Bom. 647

7. Tenancy not more than

forty years o\6.— Bombay Land Revenue Act
[Bom. Act V of 1879), s. 83— Tenancy not per-
manent. S. 83 of the Land Revenue Code (Bombay
Act V of 1879) is applicable only when the evidence
as to the commencement and duration of the ten-
ancy is not forthcoming bj' reason of its antiquity,
which, in the case of a tenancy at most onlj' forty
years old, there is no reason for presuming will be
the case. Kalidas Laldas v. Bhaiji Narax

I. L. R. 16 Bom. 646

8. Tenancy forty years old —

Evidence of commencement and origin of tenancy — ■
Bombay Land Revenue Code (Bom. Act V of 1879),
s. 83. S. 83 of the Land Revenue Code (Bombay
Act V of 1879) does not apply to a tenancy which
commenced about forty years ago, but it applies
to a tenancy with respect to which there is no
satisfactory evidence to show the commencement as
well as the terms of the tenancy. Lakshman v.
ViTHu . . . XL. R. 18 Bom. 221

Permanent tenancy— Bcwi-

hay Land Reventie Code (Bom. Act V of 1879),
s. 83 — Absence of local usage. The mere fact that
a tenancy has commenced subsequently to the com-
mencement of the landlord's tenure does not pre-
vent the application of s. 83 (1) of the Bombay Land
Revenue Code (Bombay Act V of 1879), in cases
where, by reason of the antiquity of the tenancy, no
satisfactory evidence of its commencement is forth-
coming. G held certain lands as a tenant under M ,
an inamdar. The lands continued in G's family for
nearly 80 j^ears. It was found that, owing to this
antiquity of the tenancy, its commencement or dura-
tion could not be satisfactorily established by evi-
dence. Held, that, in the absence of any local usage
to the contrary, G's tenancy must be presumed to be
permanent. Ramchandra Narayax Mantei v.
Anant . . . I. L. R. 18 Bom. 433

10.

Right of occi

pancy — Undisturbed possession — Comtruction of
grant — Conduct of parties. In a suit for ejectment
brought by the trustee of a temple, the defendants
set up a right of occupancy as permanent tenants.
It appeared that the defendants' ancestor had
held the village from the Collector (then in charge
of the temple properties) under a lease which
expired in 1831, when he offered to hold it for
two years more. The Collector made an order
that, "if the tenant would not hold the land at the
existing rate permanently, he should be required
to give security for two years' rent. Two ' ' perma-
nent " muchalkas were subsequently taken from
the tenant successively, but the^- were returned as
not being in proper form. No further document
was executed, but the tenant and his descendants
remained in undisturbed possession at the same
rate of payment up to 1888. In that year the

( 6367 )

DIGEST^OF CASES.

IjATTDLOBD Ain) tenant— conW.

9. NATURE OF TENANCY— contrf.

plaintifE sent a notice of ejectment to the then
tenant, who, however, set the plaintiff at defiance
and remained in possession till the present suit
was brought in 1890. Held, that it should be
inferred that the defendants were in possession
under a permanent right of occupancy. Varada-
BAJA V. DoRASAMi . I. L. B. 16 Mad. 131

11.

Sheri and khata

lands — Rights of khata tenants not holding under
express contract, how proved — Evidence as to similar
tenants in similar villages admissible — Custom —
Mirasidars — Liability to enhancement of rent.
In a suit for ejectment for non-payment of en-
hanced rent the defendants pleaded (1) that they
were permanent tenants ; (2) that the plaintiff
had no power to enhance; (3) that the enhance-
ment by the plaintiff was unreasonable. The lower
Courts 7ie/fZ that the defendants were permanent
tenants, but were bound to pay a reasonable rent.
Their decision was not based on evidence given in
the case, but on what ^vas termed a ' ' well-known
distinction between the sheri or private lands of an
inamdar and the khata or raiyatwar lands held by
recognized tenants. " The exercise of certain rights
of transfer or inheritance, etc., were regarded as
evidence of fixity of tenure at a reasonable rent. On
second appeal by the plaintiff, the High Court held,
that they were not bound by the findings of the
Judge as it did not appear that it was admitted that
the distinction drawn between sheri and khata
tenants was correct, or that every khata tenant, as
such, exercised the right described by the Sub-
ordinate Judge. In determining the rights of
khdta tenants who held under no express contract,
the best evidence no doubt, if possible, would be
the evidence of custom in the particular village in
question, but evidence of similar tenants in similar
villages would not be excluded. Mirasidars in an
inam village cannot alwaj's claim to hold at a fixed
rent. An inamdar can enhance their rents within
the limits of custom. Vishvanath Bhikaji v.
Dhondappa . . I. L. R. 17 Bom. 475

32, Lease by tcmple-

trusiee — Vlavadai mirasidars — Long possession —
Necessity for lease presumed. In 1813, the manager
of a temple gave a permanent lease of one-half of
certain lands to C, the ancestor of the defendants .
1 to 14, and the other half to N. In 1820, N trans-
ferred his half share to V, the son of C. In 1831,
V and S, the ancestor of the other defendants,
addressed a petition to the Collector, the then
manager of the temple. In 1832 F, and 8 executed
a fresh lease and a security bond in favour of the
temple, in both of which documents V and S were
described as ulavadai mirasidars, that is, persons
■s\ith an hereditary right, to cultivate. There M'as
no evidence adduced to prove for what purpose the
lease of 1832 was executed, but the defendants held
possession as tenants from 1832 to date of suit.
Held, that the words ' ulavadai mirasidars' used in
the deeds of 1832 as describing the tenant denoted

LANDLORD AND TENANT— conid.

9. NATURE OF TENANCY— co»<cZ.

that they were persons with hereditary right to
cultivate, and that the case was therefore of a
permanent nature. Held, also, that, after the lapse
of so great a period of time, the Court would
presume, under the circumstances, that the
original grants were made for a necessary purpose
and were binding on the temple. Chockalingam
Pillai v. Mayandi Chettiar

I. L. B. 19 Mad. 48&
13. ^^— ^— ^— ^— ^^-^— . Cultivating rai-
yat on permanently-settled estate. A raiyat cul-
tivating land in a permanently-settled estate is
prima facie not a mere tenant from year to year, but
the owner of the kudivaram right in the land he
cultivates. Venkatanabasimha Naidu v. Dan-
DAMUDi KoTAYYA . I. L. E. 20 Mad. 299-

14.

-Presumption aris-

ing from facts of pernmnency of tenancy — Long
possession at an unvaried rent — Admissibility in
evidence of judgments in former suits. A zamindar
claimed the proprietary right and possession of
mouzahs within the limits of' his zamindari, against
tenants who by themselves and their predecessors in
title, had held the land from before the Decennial
Settlement in Bengal, an unvaried rent having been
paid to the zamindar. The first defendant alleged
a grant to his ancestor of a mokurari tenure by a
ghatwal then holding land within the zamindari;
the other defendants alleged title as dar-mokurari-
dars under the fii-st. Part of the evidence for
the defence consisted of judgments, among which
was one of the year 1817 and another of 1843, to
which the zamindar 's predecessors had not been
parties. These had been given in suits brought
by the successor of the ghatwal which had been
resisted by the first defendants' ancestors on the
ground of their having had fixity of tenure. Held,
that they could be received as evidence of long
anterior possession at a rent, and of the title
on which the defendants now relied, having been
openly asserted long ago. Taken with other evi-
dence, they established possession by the defcrd-
ants at a uriform rent pf.id to the zamindar, thus
leading to the inference that the tenure had been,
and still was, of a permanent charpcter. Ram
Rai^^jan Chakerbati v. Ram Narain Singh

I. L. B. 22 Cale. 533
L. B. 22 I. A. 60

15.

Presumption as

to tenancy being permanent — Long possession —
Transfers of holding and ere-tion of buildings.
Where a tenancy was created by a kabuliat, which
on the face of it coijtained nothing to imply perman-
ency in the tenure created, which contained no
words of inheritance, nor anything to show that
the land was taken for residential or building pur-
poses ; that though the land passed by successive
transfers, there was nothing to show that the land-
lord had know ledge of them or registered the trans-
feree as tenant ; that though there were pucca
buildings on the land, they had not been in exist-

DIGEST OF CASES.

( 6370 )

IiAITDIiORD AMD TTiN ANT— contd.

9. NATURE OF TENANCY— conid.

ence for such a length of time as would warrant
an inference that the lease was one for building
purposes ; that there was nothing to show that they
were erected under circumstances from Mhich
acquiescence of the landlord and the cre.ition ot
an equitable right in the tenant could be inferred ;
or that they w ere erected with the knowledge of
the landlord ; these facts are not sufficient to
warrant an inference that the tenancy was, when
first created, intended to be permanent, or was
subsequently by implied agreement converted into
a permanent one. Ismail Khan Mahomed v.
Jaigux Biui . , I. L. E. 27 Cale. 570
4 C. W. N. 210

16. Construction of lease —

Monthlji tenancy. By indenture, dated 1st February
1856, A leased to B certain premises in Calcutta for
a term of ten years from 1st November 1855 at a
rent of RlOO i)er month payable monthly. The
defendant became the assignee of the lease without
notice to A from August 1858, and continued to
occupy the premises and paid the rent in the name
of B up to August 1866, though the lease had ex-
pired on 31st October 1865. HeU, that the tenancy
after the expiration of the lea&e was a monthly
tenancy in the name of B and terminable by a
monthly notice to quit. Brojonauth Mullick v
Weskins ... 2 Ind. Jur. N. S. 163

17. Holding over after expiry

of lease — Monthly or yearly tenancy — Notice to
quit. A and B let a house and premises in Cal-
cutta to C under a Bengali lease, for a period of
three years, fr(im 1st Assar 1273 (14th June 1866).
Upon expiration of fhe term, C continued in posses-
sion of the house, and A and B, after repeatedly
calling upon him to deliver up possession, served on
him, on 18th March 1873, in a letter A\Titten by
their attorney, a notice to quit " on or before the lat
day of Jaishta 1280 B.S., corresponding with the
13th day of May next." Held, that C, after the
end of his lease, held merely from month to/.ionth,
and that the tenancy was terminable by ai iionth's
notice. Held, further, that the letter of the 18th
March 1873 was a sufficient notice. There is no-
thing A\hich makes it a necessary inference that a
tenancy in Calcutta is a tenancy by the year, in
the absence of any special agreement to the con-
trary. So far as there is any custom in Calcutta, or
any inference of fact to be drawn from mere occupa-
tion accompanied by {>ayment of a monthly rent, it
is that the tenancy is a monthly one. Nocoordass
Mttllick v. Je\vraj Baboo . 12 B. L. E. 263

18. Duration of tenancy— rm«.s-

fer of Property Act {IV of 1SS2), ss. 106, 107— Pre-
mmpfion of yearly tenancy — Evidence — Burden oj
proof in action oj eiectment by zamindar a^/ainst
tenant as to nature of tenancy. Suit for ejectment
by a zamindar against U\o tenants holding under
him subject to the payment of an annual cist or
assessment. The zamindar was the owner of the
kudivaram as well as of the melvaram right, and it |

VOL. III.

LANDLORD AND TENANT— conid.
9. NATURE OF TENANCY— conid.

was admitted that the tenants' possession was de
rived from him. Held, that these facts alone were
not enough to raise the presumption of a tenancy
from year to year. Per Shkphard, J. — It is not the
general rule that the tenants in an ordinary zamin-
dari hold their lands as yearly tenants or as tenants
from 3-ear to jear. Many of the occupants of zamin-
dari lands are not tenants in the proper sense of the
word, and the fair presumption is that ^\hen new
occupants are admitted to the enjoyment of waste
or abandoned lands, the intention is that they
should enjoy on the same terms as those under
which the prior occupants of zamindari lands held,
it being open to the zamindar to rebut that presump-
tion, either by proving that the usual condition of
thing does not prevail in his estate or that a parti-
cular contract a\ as made between him and his tenant.
PerSuBRAHMAXiA Ayyar, J. — The presumption of
tenancies from year to year which is well known to
English law, because of the general prevalence in
England of tenancies in the strict legal sense of the
term, would also arise in this country if the tenan-
cies here were proved to be similar. But inasmuch
as practically the whole of the agricultural land on
zamindaris is cultivated by raiyats who are gene-
rally entitled to hold them so long as they desire to
do so, subject to the performance of obligations
incident to the tenure, there is insufficient founda-
tion from which such a presum])tion may be raised.
Nor is the fact that the zamindar is the owner of the
kudivaram right as well as the melvaram right
sufficient to shift on to the raiyat the burden of
proving that the tenancy is not one from year to
year. In order to discharge the onus which is on
him in a case of ejectment, the zamindar must do
more than merely show that the land when it pasted
into the hands of the raiyat was at his disposal as
relinquished or as immemorial waste land. He must
show that the defendants' possession is inconsistent
with the prima facie view that it is held under the
usual and ordinar\ form of holding prevalent in the
zaniindaT-is. Achayya v. Haninnantrayndn. /. L. R.
U Mad. 269, explained. Chef.kati Zaminpak v.
Kanasooru Dhora . L L. R. 23 Mad. 318

19. Dwelling-house— 7 r7/is/er of

Property Act (IV of /SS/;. ■•<■. Ill— Determination of
tenancy — Commencement of occu/iation of dwelling-
/,^)(.se — Prnffi.ssion by tenant to hold adversely to land-
lord — No determination of tenancy. Where a tenant
enters into occupation of a dwelling-house as
a tenant, the tenancy, in the absence of evidence to
the contrary, \\ill be presumed to be one from
month to month ; and, until it has been legally
determined in one of the modes specified in h. Ill
of the Transfer of Property Act, limitation does
not run against the landlord, though the tenant
may, in fact, profess to hold the property adversely
to the landlord. Sriniva^-a Ayyar v. Mitthwsami
Pillai, I. L. R. 24 Mad. 246, and Seshamma
Shcttnti V. Chiclaya Hegade. I. L. R. 25 Mad. 507,
followed. Ram.vswami Xaik v. Thavammal (1002)
I. L. E. 26 Mad. 488

( 6371 )

DIGEST OF CASES.

( 6372 )

LANDLORD AND TENANT— contd.
9. NATURE OF TENANCY— coraid.

-Expectation of grant of land

— Construction — Expectation raised and acted upon of
a grayit of land from the proprietor to a person en-
couraged by Mm to lay out money thereon — Irri-
qntion canal — Waste land of ' Government— Stivu-
Icilion as to possession of the canal. The principle
on Avhich this case was decided is that stated
hv Lord KingsdoA\Ti in Ramsden v. Dyson,
1 H. L. Eng. and Ir. Ap. Cas. 129, 170: " If a
man, under a verbal agreement with a landlord
for a certain interest in land, or, what amounts to
the same thing, under an expectation created or en-
couraged by the landlord that he shall have a cer-
tain interest, takes possession of such land with the
consent of the landlord, and, upon the faith of such
])romise or expectation with the knowledge of the
landlord and without objection by him, lays out
money upon the land, a Court of Equity will compel
the landlord to give effect to such promise or ex-
pectation. This was the principle of the decision
in Gregory v. Mighell, IS Ves. 32S ; and, as I
conceive, is open to no objection. "A canal bring-
ing water from theSutlej to tracts till then watered
only by rain was sanctioned by Government, to be
made, in the greater part, upon their waste land, at
the expense of the predecessor in estate of the
plaintiffs. Other land of less extent was obtained
fcr the same purpose, from private owners. The
makers of the canal, who were father and son, held
in succession, for the term of the District Revenue
S jttlement, a lease of the dues collected from those
\\ ho frequented the above tracts for pasturage and
sparse cultivations. Held, that the undertakers
acquired a proprietary interest in so much of the
Government lands, taken for the purpose of the
canal, as was required for its construction and main-
tenance, and acquired also a ri^fht to have
the waters of the Sutlej admitted into the canal
so long a^ it was used for the purpose of
irrigating the tracts. The canal having been
completed, and the lease of the customary
use having come to an end with the ter-
mination of the current settlement, the son
obtained from Government a grant of an estate
assessed to the revenue in the tracts within reach
of tbe irrigation, together with an hiam of R5,000
a year for two lives. Afterwards, in a sanad,
stating the grant of this estate. Government ex-
pressly reserved the right to take possession and
control of the canal and to manage the irrigation for
as long as they wished, without paying compen-
sation. This possession was taken. This suit was
brought for a declaration of the rights acquired by
the makers of the canal, and for other relief, on the
title of their descendants, the plaintiffs. Held,
that, at the date of the grant of the estate, the
maker had already a propjietary interest in the
cannl, and a right to take water from the Sutlej,
so long as the canal should be used for the purpose
for which it was designed, namely, the benefit of
the tracts which it traversed. Also, that the effect
.of the reservation of the grant was that Gov-

LANDLORD AND TENANT— cowirf.

9. NATURE OF TENANCY— cootd.

ernment could assume the control of the canal and
the irrigation Avithout being in the position of
receivers, managers or trustees for the proprietors
or accountable to them for the profits. The re-
servation did not empower Government to confis-
cate the canal, nor did they acquiic any proprietary
right in it, but were entitled to possess and manage
it for as long as might be necessary. Ahmad Yar
Khan v. Secretary of'^State for Tndi4 (1901 )

' I. L. B. 28 Calc. 693 :

S.C. 5 C. W. N. 634 ;

L. R. 28 I. A. 211

21. Permanent tenancy — Suit

for ejectment — Tenancy, origin of which not known —
Presumption as to a tenancy being a permanent one
— Long possession, transfer of the holding by succes-
sion and purchase, erection of pucca buildings^
with the permission of the landlord, by successive
tenants, whether sufficient for a presumption that
the tenancy is a permanent one. Although the
origin of a tenancy may not be known, yet, if there
is proved the fact of long possession of the tenure by
the tenants and their ancestors, the fact of the land-
lord having permitted them to build a pucca house
upon it, and the facts of the house having been
there for a very considerable time, of it having been
added to by successive tenants, and of the tenure
having from time to time been transferred by suc-
cession and purchase, in which the landlord ac-
quiesced or of w^hich he had knowledge, a Court is
justified in presuming that the tenui-e is of a per-
manent nature. Caspersz v. Kader Nath Sar-
badhikari (1901) . I. li. R. 28 Gale. 738 ;
s.c. 5 C. W. N. 858

22.

Loitg possession'

and instances of transfer and succession — Notice-
Homestead land in municipal town. The fact of long
possession and instances of transfer and succession ,
may raise a presumption in favour of the perma-
nency of a tenancy. Taruh Podo Ghosal, v.
Shyama Chtirn Napit, 8 G. L. R. 30; Prosunno
Coomaree v. Sheikh Rutton Bepary, I. L. R. 3
Gale. 698, referred to. Durga Mohtjk Das v.
Rakhal Chandra Roy Chowdhury (1901)

5 C. W. N. 801
Ejectment —

Origin of tenancy — Presumption as to permanent
character of tenancy. ^Vhere tenancies were created
b\' kabuliyats or patlas which did not contain any
words of inheritance, and which limited the tenant's
right to the term of the possession of the landlord,
who happened to be a muiwalli, and there was no
recognition of the incidents of old leases in the grant
of new leases to new tenants, except payments of
rents at unvaried rates for a very long period and
the facts of the holdings having been the subject of
several transfers and of the land having been always
let out by the mutwalli in ijara : Held, that these
facts were not sufficient to warrant the inference
that the tenancy was, when first created, intended
to be permanent, or was subsequently, by agree-

{ 6373 )

DIGEST OF CASES.

( 6374 )

liAWDLORD AND TENANT— cowW.

9. NATURE OF TENANCY— conW.

ment, converted into a permanent one, and that any
presumption arising from long possession \vas nega-
tived where the origin of the tenancy is known.
Caspersz v. Kednr Nnth Sarbadiknri, -5 C. W. N.
858, Durga Mohun Das v. Rakhnl Chandra Roy
Chowdhuri/, 5 C. W. N. 801, distinguished. Ismail
Khan Mahomed v. Beoughtox (1901)

5 C. W. N. 846

24.

Origin of tenancy

known. Where a tenancy was created by a kabiili-
ynt not containing any words to imply that the
holding was hereditary or the rent fixed in per-
petuity, and was held on payment of rent, at an un-
varied rate, to the landlord, who happened to be a
mutwalli, the mahnl having been always let out by
the mutwalli in ijara : Held, that the tenancy in its
inception was not permanent, and had not subse-
quently been converted into such. Ismail Khan
Mahomed v. Kaij Krishna Mondol (1901)

6 C. W. N. 134

25.

. Ejectment — Origin

of tenancy — Land whether originally agricv.ltural
— Successive transfers, and payment of rent at un-
varied rate — Presumption as to permanent character
of tenancy. Where a tenancy was created by a
, habuliyat and patla not containing any words
I of inheritance or of perpetual tenancy, the mere
I facts that the land has been held by tenants at an
j unchanged rate of rent for a very long period, and
jthat it has been the subject of successive transfers,
'do not warrant the inference that the tenancy was,
;when first created, intended to be permanent, or
was subsequently converted into such : Hdd, also,
that, assuming "that the tenancy was originally of
an agricultural character, that would not of neces-
.sity lead to the inference that the tenant had per-
manent rights in the land where it is clear that the
iland had long ceased to be agricultural : the words
j" you are to enjoy the land with great pleasure
iparani sukhe) ' ' do not create a permanent tenancy.
Ismail Khan Mahomed v. Nilratan jMondiV'
(1902) . . 6 C. W. N. 3£2

Tenancy, 'per-

minent or not — Ejectment— Heritable right — Evi-
\ience — Presumption — Onus. In the absence of
irt-ords importing it, the hereditary character of a
I:enure may be supplied by evidence of long and un-
nterrupted enjoyment, and of the descent of the
enure from father to son. Baboo Goval Lall
Thakur v. Tiluck Chunder Rai, 10 Moo. I. A.
'83, 191, and Rajah Satyasaran GhoshH v. Mohesh
'Jhunder Mitter, 2 B. L. R. {P. C.) 23, followed.
Che presumption of the permanency of a holding
vas legally made in a case where the following
acts were found, viz., possession at a uniform
ent for some 100 years, the property aescending
rom father to so.i, various transfers, many of
hem recognised by the landlord, erection of
mcca buildings, improvements at much cost, and
.11 this M-ith the loiowledge of the landlord's
gents, and no attempt to eject or to en-

IiANDLORD AND TENANT— con»W.

9. NATURE OF TENANCY— conti.

hance the rent for all those years. In a suit for
ejectment, where the defendant sets up a per-
manent tenancy, the onus is upon the defendant
to show this. A permanent tenancy is not de-
stroyed by the acceptance by a purchaser of the
holding of a mutation patta containing no express
words importing the permanency of the holding.
Such a patta has the eifect of confirming the pre-
existing holding, and not of creating a new one.
Held, upon a construction of the patta of the 21st
October, 1825, that it was only a confirmatory
patta, in fact, a kharija patta, and that it wa's
executed, not for the purpose of destroj-ing the
old permanent teniu-e and creating a tenancy-at-
^yill, but .simply >uth the object of effecting a muta-
tion of names in the landlord's sharisia. The .same
observations would apply to the pattas dated 5th
November, 1835, and 2'9th May, 1838. Ismail
Khan Mahomed v. Aghore Nath ^IrKER-TKE
(1803) . 7C. W.N. 734
27. Void lease-
Lessee's adverse possession — Disclaimer of landlord's
title to evict— Estoppel — Unregistered lease — Ad.
missibility in evidence — Ratification — Acquiescence
— Submission — ■Limitation Act {XV of 1877),
Sch. II, Arts- 120, 139 and U4^Evidewe Art
(I of 1872), ss. 11.5 aiul 116— Registration Art
{III of 1877), s. i9— Punch MahaU. One Dip.sang-
ji, the Thakore of Kanjeri in the Panch Mahals, died
on the 7th August, 1877, leaving him surviving the
plaintiff Fatesingji,who was born on the 8th Decem-
ber, 1874. The Panch Mahals had been ceded by
Scindia to the British Government in 1861, but, by
Act XV of 1874, Act XX of 1864 (the Bombay
Minors' Act) had been declared not to be applicable
to that district. Act XV of 1874 came into force on
the 8th December, 1^74. On the 29th August,
1877, the Government of Bombay sanctioned the
attachment of all the property of the plaintiff's
deceased father, and appointed Mr. Wilson, the
Extra Assistant Collector of the Panch Mahals, to
manage the estate during the uiinority of the heir,
and from that time the plaintiff's estate was under
the management of the Collector for the time being
of the Panch Mahals. Before 1881 the defendant
had been applying for a lease to him of certain waste
lands in the plaintiff's estate, and in June and
December, 1881, and February, 1SS4, three leases
(Exhibits 59, 60 and 61) were granted to the de-
fendant of portions of such land by the Collector
purporting to act on behalf of Government, but
no specific sanction of Government was obtained
to the leases. These three leases were not regis-
tered. The Bombay Minors' Act came into
force in the Panch Mahals in 1885, an<l in 1886 the
Collector obtained a certificate of administration to
the plaintiff's property under that Act. The plaint-
iff came of age on the 8th December, 1895, but the
administrator did not hand over his property to him
on that day. On the contrary, the then Collector,
by his own order, dated the 20th November, 1895
(Exhibit 142), and without the sanction of any

9r2

( 6375 )

DIGEST OF CASES.

( 6376 )

LANDLORD AND TENANT— cowW.
9. NATURE OF TENANCY— cowW.
superior authority, directed that the attachment of
the estate was not to be removed for the present,
and in fact it continued until the plaintiff received
charge of his propertj' on the 16th January, 1897.
In the meantime, viz., on 30th May, 1896, the Col-
lector executed a consolidated lease of the lands
comprised in Exhibits 59, 60 and 61 to the defend-
ant, ^Yithout any sanction from the Government
or the District Court by which he had in the first
instance been granted a certificate of administra-
tion (Exhibit 2). This lease Mas duly registered.
In Januarj', 1900, the plaintiff informally required
the defendant to give up possession of the lands he
was then in possession of (Exhibit 140), and on the
13th January the defendant claimed to hold the
lands under Exhibit 62, and on the 15th January,
1900, the i^laintiff brought the present suit to have
it declared that the defendant Mas only a cultivator
and to be put in possession of the lands. In his
written statement the defendant rested his claim
on the lease. Exhibit 62. Subsequently, however,
in case that might be held to be inoperative, he fell
back upon the leases. Exhibits 59, 60 and 61. Held,
that the mere fact that the plaintiff had received
through his talati Uxo instalments of rent did not
amount to a ratification of the lease of the 30th May,
1896 (Exhibit 62), though it might have been effec-
tual as an acknoMJedgment of a yearly tenancy.
It was contended that the action of the Collector
was ratified by Government bj^ their Resolution No.
5008 (Exliibit 100), Mhich, hoMCver, was subsequent
to the appointment of the Collector under Act XX
of 1864, whereby the guardianshiiJ of Government
had determined. Held {per Batty, J.), that there
can be no ratification by a person who at the time
of the ratification could not have done the act
himself, even though he had the power to do it
when the original act unauthorised by him was done.
The defendant contended that he had been in pos-
session as of right, and that his possession Mas there-
fore adverse, and had continued for over tM-elve
years ; that the defendant became a permanent
tenant under the plaintiff's guardian, the Collector ;
that the plaintiff had not repudiated the act of his
guardian m ithin three years after he attained major-
ity and consequently that in any vicM" of the case his
claim -ivas time-barred. Held, that it is mcII estab-
lished that there can be adverse possession" of a
limited interest in property as mcII as of the full
title as owner. As it ap^aeared that the defendant
agreed to go into possession under rules Mhich Monld
give him a permanent tenancy, and that he had ever
since ho Ment into possessitm claimed to be in as a
permanent tenant, he had therefore since 1881 and
1884 been in adverse possession as a permanent
tenant. Held, further, that, as the plaintiff had not
brought the suit Mithin three years of attaining his
majority, the defendant had obtained by adverse
possession a right to hold the lands as against the
plaintiff as a permanent tenant. Per Batty, J. —
The authorities show that a tenant in India is not
precluded by an admission of tenancy' from show-
ing that the nature of the tenancy asserted by him

LANDLORD AND TENANT— co«<rf.
9. NATURE OF TENANCY— cow.<(f.

to the knoM'ledge of the landlord has been for the
period prescribed by the Limitation Act pro tnnto
adverse to the right to evict either at will or on
notice given. A manifest assertion by the tenant,
to the knoM-ledge of the person representing the
landlord's interests, of a right inconsistent" Mith
that claimed by the landlord to treat him as a
tenant-at-M'ill or from year to year. Mould be a
disclaimer of the landlord's title. Vivimi v. Mont,
L. R. 16 Ch. Div. 730, relied on. A landlord
merely by receiving rent cannot preserve his right
to other claims continuously denied by the tenant.
The fact that such assertion and enjoyment are
not challenged does not change their adverse char-
acter M'hen once the necessity for challenging it
has arisen. It Mas contended that the unregistered
leases, even though they required registration,
could still be looked to for the purpose of ascertain-
ing M-hat M'as in the contemplation of the parties.
J^eW(pfr Batty, J.),that " a document inadmis-
sible under s. 49 " (of the Registration Act) " could
not, I think, be used a.s evidence of delivery of
possession." But, seeing that the Legislature had
advisedly rejected, in the more recent Act, the
phrases Mhich made such unregistered documents
absolutely incapable of being received in evidence
at all, and has very guardedly stated the purposes
for which they shall not be received, I think, in the
absence of authority to the contrary, an unre<>is-
tered document inadmissible for the purpose" of
affecting immoveable property or any transaction
affecting immoveable jiroperty may yet be looked
to, not in any May as creating a title, or as shoMin<^
a transaction that affected the property, but merely
as containing a clear and exhaustive statement of
the adverse possession Mhich Mas set up by a per-
son M-hose claims Mere admittedly limited to the
rights enumerated in such document. Fatesinji
DiPSANGJi V. Bamanji Ardeshir Dalat, (1903)

1. L. R. 27 Bom. 515
Permanency of

tenure — Lease of temple lands h'/ manager — Petition
for fresh lease tcithout mentioning former leases —
Madras Regulation VII of 1817 — " Ulavadai
mirasidars " — " Paracudis. ' ' One of tM'o persons,
through M-hom the respondents claimed, acquired
rights in certain lands under jjermanent leases
granted by the manager of a temple in 1813 and
1820. In 1831 the lessee and the other person,
from M-hom the respondents derived their title,
petitioned the Collector, under Mhose management
the temple then M-as, for a lease of the land for
one year. No reference Mas made in the petition to
the former leases, and the iDetitioners described
themselves as paracudis. In 1832 they executed
a muchilika and security bond to the Collector, who
sanctioned the lease to them in 1833. In those docu-
ments they described themselves as ulavadai mirasi-
dars, but there Mas nothing else to indicate their
claim to a permanent tenure. In a suit by the
manager of the temple in 1892 to recover possession
of the lands, the respondents set up the defence that

( 6377 )

DIGEST OF CASES.

6378

LANDLORD AND TENANT— conffi.

9. NATURE OF TENANCY— cow/^.

■they held a permanent tenure and were not liable
to be ejected. The High Court (reversint; the docreei5
of the Courts befow) held that it was not sufficiently
proved that the tenancy under the leases of 1813 and
1820 was ever determined, that the transaction
evidenced by the muchilika was a confirmation of
the former leases and not a new lease, and that the
respondents held the lands in a permanent tenure :
Held, by the Judicial Committee (reversino; the
decision of the High Court), that the question
whether the respondents had a permanent tenure or
not, was, under the circumstances of the case, one to
be decided on the contract sanctioned by the Collec-
tor in 1833, and under that they obtained nothing
more than a yearly tenancy. The expression ' ' ul-
avadai mirasidar ' ' had not a sufficiently definite
meaning to justify resting the decision of the case
upon it. The term ' ' paracudi," however, in which
j character the lease was asked for in 1831 was one
well understood and definite, and documents in
Avhich it \\as used similar to that in the present case
had been construed as giving no permanent right of
occupanc_v. Choc.kalinga Pillni v. Vythecdinga
Pandara Sannadhy, 6 Mad. H. C. 164 ; Thiagaraja
V. Giyana Snmhandha Pandara Sannadhy, I. L. R.
11 Mad. 77 ; and Krishnasami Pillai v. Varadnraja
Ayyangar, I. L. R. 5 Mad. 345, referred to. May-
ANDi Chettiyar V. Chokkalingam Pillay (1904)
I. L. K. 27 Mad. 291

29. 22 and 23 Vict,

c. 41 — Specific performance — Interests unknown to
the law — Improvements — Equitable rights of tenant — •
Estoppel. In 1865, the Government of Bombay
decided to construct an Eastern Boulevard in the
City of Bombay. In accordance Avith this decision,
a letter was addressed to the Municipal Commis-
sioner, requesting him to remove certain fish and
vegetable markets from the sit« of the proposed
Boulevard. On the 17th November 1865, the
Municipal Commissioner replied, that the markets /
were vested in the Corporation of Justices, but that'
he was willing to vacate certain Municipal stables,
which occupied a portion of the proposed site, if
the Government would rent other land, mentioned
in his letter, to the Municipality, at a nominal rent,
the Municipality undertaking to bear the expense
of levelling the same. The Municipal Commissioner
by paragraph 8 of his letter requested permission
ti> erect on such land " Stables of wood and iron
with rubble foundations, to be removed at six
months' notice, on other suitable ground being
provided by Government." The land referred
to by the Municipal Commissioner was Crown land,
which vested in Her late Majesty by the operation
of the Statute 21 and 22 Vict., c. 106. The Muni-
cipal Commissioner's application was referred to
the Architect lu'al Improvement Committee and
on the 5th of December 1865, the Secretary to
that Committee WTote as follows : — " The Commit-
tee see no objection to the ground applied for being
.rented to the Municipal Commissioner, and sug-

LANDLORD AND TENANT— owir/.
9. NATUI^vE OF TENANCY— conW.

gest that the annual charge of one pie per square
yard be levied in consideration of the expease of
filling in the ground." On the 9th of December
1865, the Government of Bombay passed the
following Resolution :— " Government are pleased
to sanction the application of the Municipal Com-
missioner for a site for stabling as expressed in
paragraph 8 of his letter, on the terms proposed by
the Architectural Improvement Committee in
paragraph 1 of their letter." In 1866, the Munici-
pal Commissioner entered into possession of the
land ; and stables, workshops and chawls were sub-
sequently erected on the same, at considerable ex-
pense. On the 5th September 1890, a notice of the
deterniinaton of the tenancy was served on the
Municipal Commissioner and he Mas requested to
deliver up possession of the land \nthin six months.
Negotiations thereupon ensued for the grant by
Government to the Municipality of a lease for 99
years, at a higher rent, but "no agreement was
arrived at. In 1897 rent was demanded from the
Municipality, from the 1st April 1895 to the 31st
March 1897, at the rate of R12,000 per annum,
and the sum of R 24,000 was at a subsequent date
paid to Government under protest.' In 1898, the
Municipal Commissioner declined to pay rent at a
higher rate than one pie per square yard. On the
6th June 1900, a further notice to quit was served
on the Municii^al Commissioner. On the 20th
December 1901, the Secretary of State for India in
Council filed a suit against the Municipal Corpora-
tion, praying, inter alia, for a declaration that the
tenancy of the defendants created by the Govern-
ment Resolution of the 9th December 1865, had
determined, and for an order that the defendants
should pay to the plaintiff arrears of rent, at the
rate of R 12,000 per annum, from the 1st April
1897. The defendants counterclaimed in respect
of the R 24,000 paid for rent, under protest, in
1897. The lower Court held, that the tenancy
created by the Government Resolution of the 9th
December 1865, had been determined by the
notice to quit, dated the 6th June 1900, and or-
dered the defendants to pay to the ))Iaintiff a sum
to be ascertained by the Special Commissioner, as
compensation for holding over the land. The de-
fendants' counterclaim was dismissed with costs.
The defendants appealed. Held, that if the alleged
disposition in 1865 purjKirtcd to be a transfer of the
right to enjoy the property neither for a certain
time, nor in perpetuity, then it was an attempt to
create, bj' lease, an interest unknown to the law
and as such was bad. A disposition in 1865 of
Crown lands by the Governor in Council was de-
pendent for its validity on an adherence to the forms
prescribed in 22 and 23 Vict., c. 41, and therefore
the Resolution was not a valid disposition of the
property for the interest claimed. The claim for
specific performance was open to similar objection.
A Court would not have granted specific perform-
ance of a contract for an interest not recognized
by the faw, and the Resolution regarded as a con-

( 6379 )

DIGEST OF CASES.

( 6380 )

LANDLORD AND TENANT— conf^.

9. NATURE OF TENANCY— conf<i.

tract was equally open to the objection, that
the statutory formalitiea had not been observed.
Edd, also, tiat the relief adequate to the require-
ments of the case lay in the direction of securins; to
the Municipality, on the one hand, an interest of
considerable duration, and to the Government or
the Cro-\^Ti, on the other, a reasonable rent. The
Municipahty, having, under an expectation created
and encouraged by the Government that a certain
interest would be granted, taken possession of the
land with the consent of Government, and upon the
faith of such promise or expectation and vnth the
knowledge of and ■without objection by Government
laid out money upon the land, had an equitable
right to have such expectation realised, and the
Crovm came A^dthin the range of that equity. Such
equity differed essentially from the doctrine em-
bodied in s. 115 of the Indian Evidence Act, which
is not a rule of equity, but is a rule of evidence
formulated and applied in Courts of law. It was
not an objection to that equity, that the interest
the Municipality was to have in the land, was not
originally moulded in a form recognized by the law.
Hdd, also, that the defendants' counterclaim was
well founded and should be allowed. Ramsden v .
Dyso7i, L. E. 1 H. L. 129, 170, and Plimmer v.
The Mayor of Wellington, 9 App. Cas. 699, followed.
Municipal Coepokation of Bombay v. Secre-
tary OF State for India (1905)

1. L. E. 29 Bom. 580

30. Oiins. Plaintiff

as zamindar sued to recover from defendants
sion of certain lands, which he claimed to be his
zerait lands. Defendants admitted plaintiff's title
as zamindar, but set up a title as raiyats. The
Court of first instance decreed plaintiff's claim
holding that the lands were his zerait lands. The
lower Appellate Court dismissed plaintiff's suit
as regards most of the lands holding that the plaint-
iff had failed to establish that those lands were
his zerait lands : Held, remanding the case, that
the suit had been MTongly dismissed, and the plaint-
iff can claim a decree, unless the defendants prove
the existence of a tenancy, which will entitle them
to retain possession. ^Vliere the o^mer of land
seeks to recover possession on the allegation that
the party in possession had no right to continue
in it and his title to possession is proved or ad-
mitted, he can claim a decree, unless the party in
possession proves the existence of a tenancy, which
entitles him to retain possession. Narsing
Narain Singh v. Dharam Th.4.kur (1905)

9 C. W. N. 144
31. Homestead lands — Agricul-

tural lands — Transfer of Property Act. The incident
of non-transferability was common to ordinary
tena'ncies of agricultural lands and tenancies from
year to year of homestead lands before the pass-
ing of the Transfer of Property Act : and the
party alleging transferability had to prove a
custom to that effect. Hari Nath v. Eaj Chandra,

LANDLORD AND TENANT— confti.

9. NATURE OF TENANCY— co»<d.

2 C. W. N. 122, referred to. Beni Madhub Banerjee
V. Jaikrishna Mookerjee, 7 B. L. R. 152, distin-
guished. Madhtj Sudan Sen v. Kamini Kant
Sen (1905) . . . 9 C. W. N. 895

32.

Lease given for

btiilding purposes — Presumption of permanency.
Where a lease is given for building purposes the
Court may weU presume that it M'as intended to be a
perpetual grant. Juhooreelal Sahoo v. H. Dear, 23
W. R. 399, Ismail Khan Mahomed v. Jaigoon Bibee,
4 C. W. N. 210 : s.c. I. L. R. 27 Calc. 570, relied on.
Lala Beni Ram v. Kundan Lai, 3 C. W. N. 502, s.c.
L. R. 26 I. A. 58, distinguished. Promoda Nath
Roy v. Sri Gobindo Chowdhury (1905)

9 C. W. N. 463

33. Monthly tenancy— A^oH-agrn'-

cultural land. In a case where it was quite uncertain
as to what was the date from which a tenancy
in respect of non-agricultural land ran. Held, per
Rampini, J., that the presumption was that thC'
tenancy was a monthly tenancy expiring with the
last day of each month of the Bengali year. Where
the notice to quit with respect to such a tenancy
was dated the 25th July 1899, and was served
on the tenant on the 8th of August following, and
the tenant was desired to quit on the last day of the
month of Chait 1306 (12th April 1900). Held per
Rampini, J. — That the notice was valid. Fiu-ther,
that, M'hen such notice was given on behalf of Gov-
ernment, the Collector Mas competent to sign it.
Rakhal Chandra Tewary v. Secretary of
State for India (1906) . 10 C. W. N. 841

34. Lakhiraj or mal — Onus — Land-
lord and tenant — Pasture land. When a landlord
sues for possession of land lying within the ambit
of his estate on the ground that it is mal and
not lakhiraj of the defendant, the burden of
proof in the first instance is upon the plaintiff.
Hari Har Mukhopadhya v. Madhab Chandra Baba,
S B. L. R. 566, followed. The reason of the rule as
regards the burden of proof is mainly that, where
possession for a long time by a defendant is admitted
to be undisturbed the plaintiff must give affirma-
tive proof of the land being part of his decennially
settled estate. The fact of the land being pasture
land raises a presumption in favour of the plaintiff.
Ootna Churn ChowMury v. Umbika Churn Dey,.
20 W. R. 285, relied on. Milan v. IMahomed Ali
(190?) . . . . 10 C. W. N. 434

35. Rights of zemindar in re-

spect of house-sites and grove-lands — Wajib-
ul-arz — Construction of document. The plaintiffs pur-
chased six plots of land consisting partly of groves
and partly of land formerly the sites of houses but
since brought under cultivation, and, failing to get
their names recorded as absolute owners of the plots,
brought a suit virtually for a declaration of their
proprietary title. It was shown in evidence that
the inhabitants of the village in which the plots in
suit were situated were in the habit of selling and

( 6381 )

DIGEST OF CASES.

( 6382 )

LANDLORD AND TENANT— cow<(f.

9. NATURE OF TENANCY-^onW.

transferring their houses. The wajib-ul-arz set
forth that the occupiers of houses had this power,
but all through the entries the zemindar was re-
cognized, and it was stated that if a new house \\as
to be built the permission of the zemindar must be
obtained. The entry in the wajib-ul-arz as to
groves was to the effect that isolated trees and
clumps of bamboos planted by tenants might be
cut by them ; as to rent-free groves, if the trees
should die out and the land be brought into culti-
vation, rent must be paid, and that if a new grove
was to be planted the leave of the zemindar must
be obtained. Held, that the inference of law
derivable from the facts stated above was that the
plaintiffs were not the absolute owners of the plots
purchased bv them. Kishan Kunwab v. Fateh
Chand (1906) . . I. L. R. 29 All. 203

36. Presumption as to perma-

nent tenure — Penna/'i)/! or precarious tenure — ■
Unchanged reut — Transfers of tenure — Recognition hy
landlord of transfers — Deeds of sale, construction of —
Receipts for rent not expressly describing transferee as
tenant of holding. In a suit for ejectment on the
ground that the defendant \\as a mere tenant-at-wiil,
it appeared that the tenure had been in existence
for about SO years ; that the rent had never
been enhanced though the value of the hold-
ing as measured by its sale-price had greath' in-
creased ; that it had again and again been sold
by kobalas purporting to convey an absolute
interest ; that it had passed by \\ill ; and that
the new tenants had been recognized by the
landlords after such devolutions. Held, that the
inference was that it was a permanent tenure.
On the construction of the kobalas : Held, that
the insertion therein of a stipulation that the trans-
feree should take a new patta in his own name did
not create a new tenure. Upendra Krishna Mondal
V. Ismail Khan Mahomed, I. L. R. 32 Gale. 41 ;
Nilratan Mondal v. Ismail Khan Mahomed, I. L. R.
32 Calc. 51, and Ramchunder Dutt v. Jughes Chander •
Dutt, 12 B. L. R. 229, followed. Receipts for rent
though not expressly describing the transferee of the
tenure as tenant of the holding, stated that the rent
paid was the rent of the tenure, and the person
pacing was the occupier of it, and was pa3'ing on
her ow n account. Held, that there was a sufficient
recognition of the transferee as tenant. Naba
Ktjmari Debi v. Behari Lal S en ( 19()7)

I. L. R. 34 Calc. 002 ; L. R. 34 I. A. 160
37. No presumption that ten-
ancy is chalgeni or mulgeni — Houtli Canara,
tenant in — Immemorial possession on uniform
rent, presumptive evidence of mulgeni. There is no
presumption in South Canara that a tenancy is
either chalgeni OT mulgeni. Immemorial possession
on a uniform rent \\ ill raise a presumption in favour
of mulgeni tenure and the burden will lie on the
other party to prove that the tenant was holding
on chalgeni tenure. Boggu Shetti v. Raghvra-
manaik, second appeals Nos. 137 and 192 of 1S79,

LANDLORD AND TUNANT-^ontd.

9. NATURE OF TENANCY— ^onc'fi.

referred to. Kittu Heoadthi v. Chaxvamma
Shettathi (1904) . I. L. R. 30 Mad. 528

38. Recorded tenant, whether

represents holding — Occupancy holding— Ques-
lion of fact — Decree for rent agaijist recorded
tenant— Sale — Interest of unrecorded terumt now
affected. The decision in Ashol: Bhuiyan v. Karim
Bepari, 9 C. W. N. S-13, lays down no more
than this that a landlord is not justified in treating
the registered tenant of a raiyati holding as the sole
tenant merely because his co-sharers in the holding
are not registered. There is nothing in that ca.se to
prevent the whole body of tenants of a raiyati
holding electing to treat one of their number as
their representative in their dealings with the land-
lord. The fact that only one tenant is registered is
merely an item in the evidence on the question
whether he is or is not the representative tenant
qua the landlord. Nitayi Behari Saha v. Hari
Govinda Saha, I. L. R., 2fi Gal. 677 ; Mali Lil
Poddar V. Nripendra Nath, 2 C. W N. 172 ;
Ananda Kumar v. Hari Haldar, I. L. R. 27 Gale.
546 ; Rupram Namasudra v. Iswar Nanuisitdra,
6 C. W. N. 302 ; Rajani Kant Guho v. Uzir Bibi, 7
G. W. N. 170; Afraz Mollah v. Kulustunannessa,
10 G. W. N. 1/6 ; AmUca Pershad v. Chowdhry
Keshri Sahai, I. L. R. 24 Calc. €42 ; Motilal v.
Omar Ali, 3 G. W. N 19, referred to. The ques-
tion whether the recorded tenant represents the
holding or not is, under the present law, always a
question of fact. Jagat Tara Dassya v. Dattlati
Bewa (1909) . . . 13 C. W. N. 1110

10. HOLDING OVER AI^TER TENANCY.

1, Tenant holding over after

lease — Tenancy from year to year — Agricultural
lease. When a tenant holds over, after the expira-
tion of his lease, he does so on the terms of the lea-se,
on the same rent and on the same stipulation as are
/mentioned in the lease until the parties come to a
fresh settlement. There is no general rule of law
to the effect that the lease of an agricultural tenant
in this country who holds over must be taken as
renewed from year to year and if any contract is
to be implied, it should be taken to have been en-
tered into so soon as the term of the lease expired
rather than at the beginning of each year. KiSHORE
Lal Dev v. Avyn-s\^-\n.viuK-i<y.^vM\i. "k Hkmjal
2 C. W. N. 303

2. Terms of holding over

after lease has expired — Terms of lease.
When a tenant holds on atter the expiration of a
lease, he iloes so at the same rent and on the same
terms and stipulations as arc mentioned in tie
lease, im til the parties come to a fresh settlement.

ENAYATOOL.4H V. ElAHEE BuKSH

W. R. 1864, Act X, 42

Shib Sahae v. MiKBOOL Ahmad 2 N. W. 204

Taka Chundeb Banerjee v. Ameer MrsDou

22 W. R. 385

( 6383 )

DIGEST OF CASES.

( 6384 )

liAUDLORD AND TENANT— confd.

10. HOLDING OVER AETER TENANCY— coratci.

Allah Bibee v. Joogul Mundul

25 W. K. 234

3. Cvrrcnt rates

for similar land. A raiyat who holds over after
the expiry of his lease, in spite of his landlord, is
liable to pay at the rates current for the same kind
of land in the village. Tommy v. Soobha Kukim
Lal . . . . 2 W. R., Act X, 73

Evidence cf rate

'of rent. Where a tenant continues to hold land
after his term, his pottah will be evidence of the
rent at which he is holding over, in the absence of
evidence to the effect that the rent ^^ as altered sub-
sequently to its expiration. Sheo Sahoy Singh
V. Bechun Singh . . .22 W. R. 31

5. Conditions of ten-
ure. Where on the expiration of a lease the
lessee is allowed to continue in possession as a yearly
tenant, he does so on the terms contained in the
expired lease, so far as they are consistent ^\ ith a
yearly holding. Sayaji v. Umaji

3 Bom. A. C. 27

Right of tenant holding

over — Holding over by acquiescence of landlord
after lease has expired — Notice to quit. A land-
owner who, after the expiration of a lease, continues
to receive rent for a fresh period, must be consi-
dered to have acquiesced in the tenant continuing
to hold ui^on the terms of the original l^ase, and
cannot turn out the tenant, or treat him as a tres-
passer, \\ithout giving him a reasonable notice to
quit. Ram Khelawan Singh v. Soondra

7 W. R. 152

Liability to eject-

ment— Notice to quit. A tenant holding over for
some time without renewal of his lease is entitled,
whether he has any right of occupancy or not, to
retain possession of his <e:iure until either he re-
signs it or is ejected in due course of law. Ooma

LOCHUN MOJOOMDAR V. NiTTYE CHUND PoDDAR

14 W. R. 467

Notice to quit.

Where a tenant has been allowed to hold over
leases on the expiry of their terms, and has continu-
ed in possession under those leases, it must be sxip-
posed that there is an implied agreement between
him and the landlord, and the tenant under such
circumstances is entitled to hold on until served
with a legal notice to quit. Jumant Ali Shah v.
Chowdry Chuttubdharee Sahee

16 W. R. 185

Notice to quit.

There is no difference in law between the position of
a raiyat holding without a pottah and that of one
hoi ling over after the expiry of the term covered by
a pottah, vith the consent of his landlord. Such a
tenant cannot be evicted without a reasonable notice
to quit being given ; and the relationship does not
come to an end at the expiration of each year, with-

LANDLORD AND TENANT— con<(i.

10. HOLDING OVER AFTER TENANCY— conW.

out some act on the ]jart of the landlord and tenant
jointly, or of either of them. Ram Kheliwan Singh
V. Soondra, 7 W. R. 1,52, followed. Chatubi Singh
V. Makuxd Lat.l

I. L. R. 7 Calc. 710 : 9 C. L. R. 240

10. Liability of tenant holding

over — Ejectment, liability to. If a tenant holds
his land for a term of years, and no new tenancy is
created by the zamindar on the termination of the
original lease, either by receipt of rent or in any
other way, and if the tenant has no other title to the
land beyond that conceded in the original lease for a
terra of years, the zamindar is entitled to evict the
tenant on expiration of the lease without the in-
tervention of a Court. Chowdhry' Izharool Hitq
V. Bhoosee Mahtoon . . 25 W. R. 201

11. Tenant -at-tviU,

rate of rent for. A zamindar who allows a tenant
to remain on his land without express contract can
only demand a fair rate of rent, — i.e., the full mar-
ket rate. Moneeroddeen Merdha v. Keennie

4 W. R., Act X, 45
Gopal LalThakoor v. Buduroodeen,

7W. R. 28

12.

• es pas s e r.

Where a lessee \\-hose lease has expired, and who
is unwilling to give the increased rent demanded by
the landlord, retains possession in the hope of
obtaining a new lease without such increase, parties
entering upon the land as cultivators \\ith the
consent of the landlord are not called upon to show
the ex-lessee their authority. Gale v. IIaharanee
Sreemutty . . . 15 W. R. 133

13. Increase of rent

-Agreement for specified period. The defendant
being, under a settlement originally obtained from
the Government, bound to pay a particular rent to
the plaintiff, who had, subsequently to that settle-
ment, obtained an jara from the Government, the
plaintiff in 1879 sued to enhance that rent and ob-
tained a decree upon which a compromise was made,
the defendant agreeing to pay a higher rent for the
years 1281 and 1282. The defendant having paid
no rent for 1283 and 1281, the plaintiff sued for
the arrears at the highei- lent. Held, that no proper
proceedings for enhancement having been taken or
fresh contract with the defendant entered into, the
special arrangement came to an end at the ex-
piration of 1282 and the original arrangement re-
vived, and therefore the plaintiff Avas not entitled
to demand more than the original rent payable.
Burhunuddi Howladar v. MoHUN Chundeb
Guha 8 C. L. R. 508

This case was distinguished where there was no
agreement for a specified period. Burhunuddi
Howlad-^r v. MoHUN Chunder Guha

8 C. li. R. 511

14.

Acquiescence of landlord

in tenants holding over — Right of occupancy.
The mere fact of a landlord permitting a tenant to

( 6385 )

DIGEST OF CASES.

G386 )

XANDLORD AND TENANT— con<^.

10. HOLDING OVER AFTER TENANCY— conR

hold over for a year beyond the term of his lease can
not create any right of occupancy in the tenant's
favour. The landlord's cause of action in such a
case arises when he is refused the right to re-enter.
Kabeel Saha r. Radha Kissen Mullick

16 W. B. 146

15. Dispossession of tenant

holding over — Riij^ii to pos.session on heinr/ dis-
T^w.^esvec/. Where a tenant, holding over after the
expiration of his lease, is \\Tongfully dispossessed, he
has a right to be restored to possession ; and he has
the same right if, having been ejected during his
lease, his lease expu-es pending a suit to recover pos-
session. Asagainst every one except the landlord,
he is still the person entitled to possession. Abub
f. ASHRUP . . . . 24 W. B. 335

16.

Suit against tenant hold-

ing over — Suit on contract or for use and occupa-
tion. Where there is an express contract, the
zamindar can only sue on the terms of the contract,
and cannot sue for use and occupation. Watson
& Co. V. Taeinee Churn Gangooly

17 W. B. 494

DhUNUNDRO CHtTNDER IMOOKERJEE V. LaIDLAY

20 W. B. 400

17. Use and occu-
pation of huilding tender unregistered lease. A
party who retains and holds a building under an
unregistered kabuliat is liable, though the kabuliat
cannot be enforced for want of registration, to pay a
reasonable compensation for the use and occupation

of it. PUROMA SOONDAREE DOSSEE V. PrOLLAD

ChunderDoss . . . 12W. B, 289

18. Liahility to

change of rent — Notice — Use and occupation of
land. In cases not governed by Bengal Act VIII of
1869, a landlord, by merely giving his tenant notice,
cannot bind him to pay a particular rent ; but he can
put an end to the tenancy on its former terms, and
if the tenant continue to hold, he docs so without
-an\' rent having been fixed. A suit by the landlord
to recover his dues in such a case would be not a suit
for rent, but for reasonable compensation for the
; use and occupation of the land, and the Court would
have no po\Ner to fix the rent for the future. Ky-
LAsn Chundeb Sircar v. Woom.anund Roy

24 W. B. 412

See Lalunmonee v. Ajoodhya Ram Khan

23 W. B. 61

19. Termination of

(■nancy and alteration of rent after notice to quit
— Suit for use and occupation. A landlord who can
terminate his tenant's tenancy by a reasonable
notice to quit can also, ^nthout giving a positive
notice to quit, raise the tenant's rent by serving a
reasonable notice upon him that in the ensuing j'car
he will require a higher rent. In a suit to recover
such rent whether governed by Bengal Act VIII of
1869 or not, the Court has power to find the tenant

liANDLOBD AND TENANT-<on<'/.

10. HOLDING OVER AFTER TENANCY— co«(<f.

liable to pay a reasonable sum for occujDation.
Budun Mollah v. Khettur Nath Chatterjee

24 W. B. 441

20. Consent of land-
lord— Trespasser — Dama{)es for use and occupa-
tion. To justifj' a holding over after expiry of lease,
a direct consent on the part of the landlord is re-
quisite. No implication of consent can or ought to
be received when there has been every opportunity
of consent in express terms, and particularly in the
face of a special warning from the landlord that he
should re-enter on the land when the term expired .
When tenants have no right to hold over, their use
and occupation of the land is a trespass, and they
are liable, not for rent as tenants, but for damages
as trespassers. Mackintosh v. Gopee Mkhun
MoJooMDAR . . . . 4 W. B. 24

Settlement with

tenant containing a clause for re-entry — Compensa-
tion in lieti of rent — Use and occupation — Tres-
passers. The plaintifE made a settlement of certain
land with A and B for five years, there being in the
settlement a stipulation that, if the tenants failed to
pay rent, the plaintiff might accept another tenant.
^1 died during^the tenanc}', and B left the place and
the property without paWng rent, and thereupon the
plaintiff entered into possession of the property and
held khas possession of it for two years, when he in
1870 entered into a settlement of it with defendant
No. ] for six years. In 1878 B died, and defendants
Nos. 2 and 3, alleging themselves to be the chela and
dasiputra of B, took upon themselves to collect rent
from the tenants. The plaintiff thereupon brought
a suit against the three defendants, treating them as
trespassers, but at the same time asked for the
amount of rent due and for eviction. Held, that
defendants Nos. 2 and 3 had no right on the pro-
perty at all, and that defendano No. 1, who might
have been considered as holding over after the ex-
pij<ion of his lease, if he had been in actual sole
possession, should not be made liable for the whole
rent -when defendants Nos. 2 and 3 were in posses-
sion as much as he was ; but that as the plaintiff
had elected to \\-aive the trespass, all the defendants,
might, on the authoritv of Lalun ^Tonc<- v. Sona
Monee Dabee, 22 W. E. 333, and Lukhee Kant Dass
Chowdkry v. Sumeeruddi Lusker, 13 B. L. R. 243 :
21 IF. R. 20S, be treated as tenants, and a decree
for use and occupation given against them. Sur-

NOMOVEE r. DlNONATH ( !lU S rNNVASEE

I. L. B. 9 Calc. 908 : 13 C. Ii. R 69

22. — Ejectment,

delau in executing decree for — Possession of tenant
until execution — Suit for damages. A plaintiff who
had obtained a decree for ejectment under s. 25, Act
X of 1859, and did not execute that decree for some
months after, is not entitled to a decree in a suit sub-
sequently brought for damages, in respect of the
same lands, for the period included between date of
the institution of the ejectment suit and the execu-
tion of the decree in that suit, the occupation of the

( 6387 )

DIGEST OP CASES.

{ 6388 )

LANDLORD AND TENANT— confrf.

10. HOLDING OVER AFTER TENANCY— confi.

defendants being the occupation of tenants-at-will
and not of trespassers. Aymel Islam v. Jardine,
Skinnee&Co. . . . 8 W. 11.501

23.

Tenancy from

year to year— Transfer of Property Act (IV of 188 2)
ss. 116, 117. When an agricultural tenant holds
over, his tenancy is renewed from year to year.
Kvshore Lai Dey v. The Administrator-General of
Bengal, 2 C. W. N. 303, doubted. Administeatoe-
Genebal of Benqal v. Asbaf Ali (1900)

I. L. R. 28 Calc. 227

24.

Lease — Teriant

holding over — Assent of landlord — Liability for rent
after expiry of term— Transfer of Property Act
{IV of 1882): s. 116. The defendant held a share of
a khoti village from the plaintiff, under a kabuliyat
dated 30th Jime, 1890, for a period of five years.
This suit ^^as filed to recover from him the rent due
under it for the years 1898, 1899 and 1900. He
pleaded that the kabuliyat had expired on 30th June
1895, and that subsequently to that date he held
possession, not of the plaintiff's share as his tenant,
but of the whole village as managing khot, and that,
therefore, the plaintiff \vjsba not entitled to rent from
him, but was entitled merely to his (the plaintiff's)
share of the profits of the village. It appeared,
ho^\ever, that, though the kabuliyat had expired
in June, 1895, the plaintiff in 1897 had sued the
defendant for the rent due under it for the four
years 1893-1894 to 189G-1897, and had obtained a
decree. Hdd, that the decree in that suit was an
adjudication that the defendant continued in pos-
session after the date of the expiry of the kabuliyat
as tenant from year to year, and was liable to pay-
ment of rent for the years then sued for, and that
he would be liable to the rent now sued for unless
he proved that after the decree in the suit of 1897
he gave such notice to the plaintiff as had in fact
terminated the tenancy, and unless he put the
plaintiff in the way, if he desired it, of acting on that
notice by receiving from the defendant as managing
khot what the plaintiff" would be entitled to receive
if the tenancy by sufferance had continued.
Balaji Raghunath Phadke v. Ramchandea
KaseiPatkae(1902) . I. L. R. 27 Bom. 262

25. — Under-raiyat,

]ieir of — Possession, right to remain in. Irrespective
of custom or local usage the heir of an under-raiyat
under an annual holding is entitled on the death of
the under-raiyat to remain in possession of the land
until the end of the then agricultural year for the
pm-pose, if the land has been sublet, of realising
the rent, which might accrue during the year or if
not sublet, for the purpose of tending and gathering
in the crops. Arip Mandal v. Ram Ratan Mandal
(1904) . . . I. L. R. 31 Calo. 757
s.c. 8 C. W. N. 479
26. Liability of co-
tenants for — Transfer of Property Act {IV of 1882),
s. 116— Lease — EMale of deceased co-tenant, when
liable for holding over. The holding over by one or

LANDLORD AND TENANT— co«(d.

10. HOLDING OVER AFTER TENANCY—

concld.
more co-tenants without the consent of the others
cannot render per-sons not so holding over liable for
rent. Draper v. Crofts, 15 M. d> W. 166, followed.
In order to make the estate of a deceased co-
tenant liable for rent due for holding over onus
lies heavily on the plaintiff to prove clearly and
conclusively that after the expiry of the old lease a
new contract was made by and between the plaintiff
on the one hand and all the co-tenants including the
co-tenant, whose estate is sought to be made liable
on the other, making themselves jointly and sever-
ally liable to perform the conditions of the tenancy.
Beojo L.al Roy v. R. Belchambees (1905)

9 C. W. N. 340

27.

Specific Relief

Act {I of 1877), s. 9— Tenant holding over— Dis-
possession by landlord— Suit by tenant to recover
possession — Extraordinary jurisdiction. A tenant
holding over after the expiry of the period of ten-
ancy was dispossessed without his consent by the
landlord. The tenant then brought a suit for pos-
session against the landlord under s. 9 of the Specific
Relief Act (I of 1877). The Subordinate Judge
dismissed the suit. The plaintiff (tenant) there-
upon applied under the extraordinary jurisdiction
(s. 622 of the Civil Procedure Code, Act XIV of
1882). Held, reversing the decree, that the plaintiff
(tenant) was not liable to be evicted by the defend-
ant (landlord) proprio motu and that he wsls en-
titled to a decree for possession. Rudeappa v.
Naesingbao (1905) . I. L. R. 29 Bom. 213

11. DAMAGE TO PREMISES LET.

1. Damage by ^re— Negligence

Defect in building. The plaintiff hired a

thatched bungalow of the defendant, entered into
possession and after Uving in the house some time
lit a fire in the fire-place in one of the rooms. The
chimney took fire, and the plaintiff's furniture
was destroyed. He subsequently ascertained that
the chimney had been thatched over, of which fact
he had been all long ignorant. Held, that the land-
lord, defendant, was liable to damages for the loss
sustained by him. Per Kemp, J.— The landlord
should have given the plaintiff notice of the de-
fective construction of the chimney. The plaintiff
had a right to assume that it was properly built.
Radha Krishna v. O' Flaherty

3 B. L. R. A. C. 277 : 12 W. R. 145
Damage by storage of goods

— Warehouse— Damage—Suit for negligence-Onus

\ probandi. The plaintiff let to the defendants a

; godown on an upper storey over his own godown

' for the purpose of storing goods, the only stipulation

in writing being that no combustible or hazardous

goods should be stored there. The plaint alleged

I that the premises were taken by the defendants oQ

the understanding that the defendants should use

the same in a tenant-like manner, yet the defendants

! used them in an untenant -like manner, and loaded

( 6389 )

DIGEST OF CASES.

( 6390 )

LANDLORD AND TENANT-^onW.

11. DAMAGE TO PREMISES LET— contd.

an unreasonable and improper weight on the floor,
whereby it broke through and damaged the plaint-
iff's goods below. The evidence showed that the
godow n had been used by former tenants for storing
Ught goods, but, in addition to light goods, the
defendants had, at the time the floor broke, stored
upon it several casks of white and red lead and some
cases containing tin plates. The evidence of pro-
fessional witnesses showed that a warehouse floor
ought to be able to bear 1 i cwt. per superficial foot,
and there was evidence to show that the pressure on
the portion of the floor ^hich fell was, at the time,
1 cwt. 1 qr. 6 lbs. The floor gave wa}^ in the part
\\here the heavy goods were stored, but there was
nothing to show that they were improperly stored.
Evidence was given that it -was not usual to store
lieavy goods on an upper floor, but that heavy goods
were sometimes stored on upper floors. The evi-
dence of the professional witnesses ^Nas to the effect
that the floor was not a proper one upon which to
store merchandise, but that 1| cwt. was not a dan-
gerous weight for a warehouse- floor to bear, and
that no unprofessional person could have antici-
pated danger from it in the present instance.
There ^^as also evidence to show that the girders
were not sufficient for the floor of an ui:)per storey to
be used as a godow n. In a suit for damage sus-
tained by the plaintiff by reason of the breaking of
the floor : — Held (per Macphersox, ./., and on
appeal), that it lay upon the plaintiff to show that
the defendants had acted in an improper and un-
tenant-like manner, and that he had failed to show
that any improper or unreasonable weight had been
placed by the defendants upon the floor, or such as a
tenant exercising ordinary caution might not have
placed there. Koegler v. Yui.e

5 B. L. R. 401 : 14 W. R. O. C. 45

3. Destruction of plants by-
fire— Traw-s/er of Properh/ Act (IV of 1S82),
^■. 708, cl. (e) — Lease of coffee (jarden — Voidability
iif Im^e. The plaintiff was the assignee of the right
and title of the lessor, and the defendant was the
lessee of a coffee garden under an instrument
wliich was held to constitute a lease of the coffee
plants only. In a suit to recover the annual pay-
ment reserved under the lease, it appeared that the
eotTee plants had been destroj'ed by .'ire, and the
garden had been consequently abandoned by the de-
fendant before the ])eriod to which the claim related.
Held, that the plaintiff' was not entitleil to recover.
KuxHAYEK Haji V. Mayax . I. L. R. 17 Mad. 98

4, Destruction of premises

before expiration of lease — Lew^e for a year —
Whole rent paid in advance — Eight of tenant to a
refund of rent paid in advance — Apportionment —
Tran.ifer of Property Act (IV of ISS2), s. lOS,
d. (e)~Contrnct Act (IX of 1S72), s. 65. In April
1896, the defendant let to the plaintiffs one com-
partment in a certain godown for storing goods for
twelve months for a sum of R 1,459 and a second
compartment in the same godown for twelve months

LANDLORD AND TENANT-^onftf.

11. DAMAGE TO PREMISES LET— corw/i.

for R 1,368. The plaintiffs entered into possession.
In August 1896, in accordance with the practice,
the plaintiffs paid the said two sums in advance to
the defendant and got a receipt. On the 30th
October 1896, without any default of the plaintiffs
the whole godown including the said two com-
partments was destroyed by fire and rendered
wholly unfit for the piu-pose of storing goods. The
plaintiffs thereupon sued for a refund of a propor-
tionate part of the money paid to the defendant,
relying upon s. 108, cl. (e), of the Transfer of Pro-
perty Act and s. 65 of the Contract Act. Held,
that they were entitletl to recover. The considera-
tion was for the whole year. The lease, i.f., the
whole contract had become void, and therefore
under s. 65 of the Contract x^ct the defendant, who
had received the \\hole consideration, was bound to
make compensation for that portion which had
failed. Dhitbamsey Soonderdas v. Ahmedbhai
HuBiBBHOY . . I. L. R. 23 Bom. 15

Excavations by tenant — Per-

manent lease — Injunction. A tenant hokUng under
a lease of a permanent character has no power to
make excavations of such a character as to cause
substantial damage to the property demised,
although by the terms of the lease he has power to
make excavations. Grish Chandra Chaxdoo v.
S IRISH Chandra Das (1905) . 9 C. W. N. 255

12. DEDUCTIONS FROM RENT.

1. Right to hajuts or remis-

sions of rent — -Discretion of landlord. A raiyat
can have no claim in law to hajats (or remissions),
which being acts of grace on the part of the landlord
rest solely on his discretion. Panaollah Xashyo
V. Nubodeep ChunderShaha . 15 W. R. 270

1 13. REPAIRS.

1. Liability for repairs— Con-

struction of lease. Where certain premises were
let under an agreement in w hich the tenant cove-
nanted as foUows ; "I \vill make the necessary re-
pairs to the buildings at my own cost ; if by reason
of my not so repairing any injury occur to a building
or it become broken, I will restore it," it wa-s heUL
that it would not be a fair construction to hold that
if, whilst the buildings were in good repair, and the
tenant had done all the necessary repairs, they were
blown down or injured by a cyclone, the liability to
restore them shoidd fall upon the tenant. The
agreement bound the tenant only to restore build-
ings, which it became necessary to restore in conse-
quence of his not repairing them. Any loss occa-
sioned by the natural o})eration of time ought to fall
upon the landlord, and not upon the tenant.
Anund Moyee Dossee v. Raj Coom.\r Roy

23 W. R. 34

2. ■ Lea.<e — Assign-

me>it of lease — Privity of contract — Liability to repair
—Transfer of Property Act (IV of 18S2), s. 3.

( 6391 )

DIGEST OF CASES.

( 6392 )

LANDLORD AND TENANT— cowfcL

13. REPAIRS— con<cZ.

The word fixture is one of common use in English
law, but in India the word is not so familiar, and
the maxim ' quicquid plantatur solo solo cedit,' on
which the law of England as to fixtures seems to
have been originally founded, has never received so
wide an application here as there. For anj^thing to
be a fixture it must be ' ' attached to the earth ' ' as
that expression is defined in s. 3 of the Transfer of
Property Act. Where the occupiers of premises
continue in possession in the belief common to them
and the owner of such premises that they hold under
the terms of a lease, which had never been as-
signed to them by the original lessee and \\'hich
had expired, they are bound to carry out such cove-
nants as to repairs, etc., as would have to be per-
formed under the lease \\dthin a period of similar
duration to that during which they hold posses-
sion, their liability being based on the footing of
a tenancy that commenced at the expiration of the
lease and not on any privity of contract or estate
whether legal or equitable, created by the lease.
Chaturbhuj v. Thomas J. Bennett (1905)

I. L. R. 29 Bom. 323
23 W. R. 34

3. _ Deduction from rent. In a

suit for house-rent, the tenant cannot be allowed
to set-off a sum expended by hira in repairing
the house without authority from the plaintiff.

ZUMMEERTJNNISSA V. GaYER

6 W. R. Civ. Ref, 26

— Lessee's liability to keep

demised premises in repair — Covenant to
renew lease — Extent of lessor's liability — Compensa-
tion for lessee's loss for non-repairs by lessor —
Transfer of Property Act {IV of 1882, as amended
by Act III of 1885), s. 105. In the absence of ex-
press covenant in the lease how far lessor is bound
to make structural rejDairs during the continuance
of the lease or on its renewal when such option is
given : — Held, that the lessor is not bound to make
such repairs. Although the lessee is bound to j'ield
up the premises in good repair after expiry of lease,
except in case of damage done by act of God or in-
evitable accident, a corresponding liability is not im-
posed on the lessor. No such obligation is imposed
by the Transfer of Property Act (IV of 1882, as
amended by Act III of 1885),' nor does any principle
of equity require such a result. Held, further, that,
if by any act of God or inevitable accident any
material portion of the property became unfit for
the purpose for which it was let, the lessee had the
option to avoid the lease, but no right to claim
damages against the lessor. Stuart v. Playfair
2 C. W. N. 34

5. Damage by earthquake —

Lease — Covenant to " keep premises wind and water-
tight and in habitable condition " — Liability to repair
—Transfer of Property Act {IV of 1882), s. 108,
cl. (m). Where a lessee covenanted to " keep the
premises wind and watertight and in habitable
condition," and the premises were subsequently

LANDLORD AND TENANT— con/t7.

13. REPAIRS— co%cW.

damaged by earthquake : — Held, that the lessee
was bound by his covenant whether or not the
damage was caused by an earthquake or other
irresistible force ; that the covenant was a contract
to the contrary within the meaning of s. 108, Trans-
fer of Property Act, and cl. (m) of that section did
not apply ; and that the defendant was not liable to
do all and every repair that became necessary by
reason of the earthquake, but only to make good the
damage caused to the premises by the earthquake to
the extent of making them wind and watertight and
in habitable condition. Proudfoot v. Hart, L. R.
25 Q. B. D. 44, referred to. Hechle v. Tellery
4 C. W. N. 521

14. TAX AND CESSES.

Liability for tax — Ho2ise

built by tenant. The owner of the land is not liable
for the tax assessed on a house built upon the land
by his tenant. Wooma Nundo Roy v. Browne

6 W. R. Civ. Ref. 30

Liability for cess — Construc-

tion of deed— Cess Act {Bengal Act IX of 1880), .?.
41 — Mokurari lease. It is open to the zemindar
and the tenure-holder to contract themselves out
of the provisions of s. 41 of the Bengal Cess
Act. Where in a perpetual mokurari lease the
rent was fixed by a clause, which runs thus :
"At varying jainas, to wit, at an annual uniform
jama of Rl,580 from 1284 to 1291 {FasU)
and at an annual uniform consolidated jama
of Rl,585 of the current coin from 1292 {Fasli)
together with abivah such as salami for Dusserah
and Holi, Burkha, Sair, Road cess. Public works
cess, etc., all of which are included in that very
sum of R 1,585." Held, that the contract does
not provide for the contingency which happened
in this case, namely, an increase in the amount of
cesses levied by the State. That if any additional
cess is imposed or if the amount of cess is increased,
the incidence of the new burden must be regulated
according to the Statute. Mahanand Sahai v.
Sayedunnissa Bibi (1907) . 12 C. W. N. 154

15. ALTERATION OF CONDITIONS OF TEN-
ANCY.

(a) Power to alter.
Mortgagee of tenant-

Change of nature of tenure witJwid authority from
landlord. When the conditions of a tenure have
been settled by a compromise between the landlord
and tenant, a subsequent mortgagee has no power
to change the conditions so as to bind the landlord
unless he has power expressly given him in that
behalf, and the tenant is estopped from denying
the conditions. HuR Pershad v. Oodit Narain
1 Agra Rev. 60

( 0393 )

DIGEST OF CASES.

( 6394 )

LANDLORD AND TENANT— co«W.

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—coraic^.

(b) Division of Tenure and Distribution of
Rent.

2. - Change in position of ten-
ant's and rent payable for each portion of
land. A landlord, who has let out land at a cer-
tain rent, payable in one sum for the whole, cannot,
without the consent of the tenant, alter the position
of the latter and say that in future so much shall be
payable in i-espect of one parcel only, and so much
in "respect of another. Kalee Chunder Aich v.
RamguttyKur . . . 25W. R. 95

3. Breaking up tenures with-
out consent of tenSints^Linbilifi/ for rent.
Where tenants hold land by different agreements,
the zamindar has no right without their consent to
break up existing holdings and redistribute lands so
as to alter the extent and nature of the holdings.
Ruheemuddy Akun v. Poorno Chunder Roy
Chowdhery ... 22 W. R. 336

4. Splitting claim for rent—

Suit for rent under a lease of several estates where
the rent is a lump vjnn. ^Vhere the rent res(;rved by
a lease of several estates is a lump sum, a claim to
recover it under the lease cannot be split and appor-
tioned. OosMAN Khan v. Chowdhry Sheoraj
Singh 5 N. W. 42

5. Division of holding by ten-
ant— Recognition of, by landlord. A zamindar
may recognize the division of a holding either form-
ally, by actually dividing it into parts or impliedly,
b\ receiving rent ironi parties holding separately.
cioMA Churn Banerjee v. Raji.uckhee Dkbia

J 25 W. R. 19

flf Consent of land-
lord—Act X of 1S59, s. 27. Under s. 27, Act
X of 1859, no division of tenure or distribution of
rent is valid or binding without the consent in writ-
ing of the landlord. ^Upendra Mohun Tagore !'.
ThandaDast . . 3 B. L. R. A. C. 349

Mohun Tagore v. Thanda
12 W. R. 263

S.C. WOOPENDRO
DOSSIA

Sadhan Chandra Bose v. Guru Charan Bose
8 B. L. R. 6 note : 15 W. R. 99

'■ by

Acqui

landlord. But where a zamindar himself put up a
tenure for sale in separate lots, and took rents from
two of the purchasers separately, it was held that no
written consent was necessary in order to his being
bound to recognize the partition. Nubo Kishen
Mookerjee v.Sreeram Roy . 15 W. R. 255
8. Consent of land-
lord— Power to consent — Former. Held, by a ma-
jority of the Court (rfmeni/cwie Steer, J.), that the
farmer of a Government khas mehal, as the party
?ntitled to the rents, can accept a surrender of a
tenure, and therefore is competent to assent to the
division of a raiyati holding within his farm into

LANDLORD AND TENANT— con<<f,

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—con<«i.

(6)]^DivisioN OF Tenure and Distribution op
Rent — contd.

several distinct and separate holdings. Huree Mo-
hun MOOKERJEE V. GORA CHAND MiTTER

2 W. R., Act X, 25

9. Agreements as to division

—Act X of 1859, s. 27— Liability for rent. The
provision of Act X of 1859 which requires that every
agreement as to division or distribution of rent
should be in writing, applies only to division or dis-
tribution made after the Act came into ojx^ration.
Allender v. Dvvarkanath Roy . 15 W. R. 320

10. Benrjal Tenancy

Act {VIII of 1885), s. 88— Division of tenure-
Distribution of rent — Rent receipt arui furd, cowitruc-
tion of — Consent to a division or distribution of tenure.
A receipt for rent granted by a landlord or his
agent, containing no specification of the total jama
of the taluk, no statement of the area of the taluk
or the portion of the taluk which was separated and
separately settled with the tenant, nor of the share
separated, nor containing a recital that the tenant
was registered in the landlord's sherista as a tenant
of a portion of the original holding at a rent, which
was a portion of the original rent, does not amount
to a consent in writing by the landlord to a sub-
division of the holding, within the meaning of s. 88
of the Bengal Tenancy Act. Pyari Mohan Mukho-
padhya v. Gopal Pail; I. L. R. 25 Calc. 531, dis-
tinguished. An entry in a furd or account which
appeared on the face of it to have been wTitten
by A servant of a tenant and exliibited jjayments of
rent made in respect of .six different taluks by the
tenant to the landlord, and which was signed and
receipted by a Sumarnavis of the said landlord^
does not amount to a consent in writing on behalf
of the landlord to a division of the tenure or dis-
tribution of the rent. Jnanendra Mohan Chow-
dhry V. Gopal Das Chowdhry (1904)

L L. B. 31 Calc. 1026
S.C. 8 C. W. N. 923

IL Transfer of a tenure — Liabil-
ity of tenant— Benqal Tenancy Act ( VIII of i.S55),
.s«. 12, 17, 88. Where the defendant held sepa-
rately a share of a sikmi taluq under tlie plaint-
iff, and transferred tliat share to a thiril jiarty and
served a notice of the transfer on the plaintiff,
landlord, as pre.scribed by s. 12 of the Bengal Ten-
ancy Act. Held, that the act of the defendant in
making the transfer did not amount to a sub-
division of the tenure, and that the defendant wa.s
not liable for rent for any period subse(iiient to the
transfer. Chintamani Dutt v. /?«-</( Behari Mondal^
I. L. R. 19 Calc. 17, referred to. Kali Sundari
Debi v. Dharani Kanta Lahiki (1905)

L L. R. 33 Calc. 27a

12. Partition— .7o/«/ landlords-
Effect on holding — Division of holding — Estates
Partition Ad {Bengal Act VIII of um^ An estate

( 6395 )

DIGEST OF CASES.

( 6396 )

XANDLORD AND TENANT— cowW.

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—co?i«<Z.

(6) Division of Tenure and Distribution
OF Rent — concJd.

having been partitioned between the plaintiff and
his co-sharers under Bengal Act VIII of 1876, a
portion of a hokUng, which formerly appertained
■to the joint estate, fell \vithin plaintiff's share :
Held, that the partition had the effect of dividing
the holding so that the plaintiff became the
sole landlord Math regard to the portion of the
holding that fell w-ithin his share of the estate.
Sarat Sundari Debya v. AnuTida Mohun Sarma,
J. L. R. 5 Calc. 273 ; Hem Chandra Chowdhry v.
Kali Prossunno Bhaduri, I. L. B. 26 Calc. 832,
referred to. Durga Prasad Sen v. Doula Gazee,
1 C. W. N. 160 and 161 ; Rai Kamaleswarie v.
Maharaja Harhullahh Narain Singh, 2 C. L. J.
.36, distinguished. Bengal Act VIII of 1876, whilst
it did not provide for the division of holdings, did
not also contain any prohibition against such divi-
sion. Protap Chandra Das v. I^^iale Kanta
:Sh.4Ha(1906) . . . 10 C. W. N. 818

13.

Partition — R ights

of tenants in respect of house sites in the abadi.
As the result of the partition of a village hitherto
forming one mahal into two mahals the occupancy
holding of a tenant fell into one mahal owned by
one co-sharer, whilst a house which the tenant and
his predecessors in title had occupied for a con-
siderable period as appurtenant to the agricultural
holding fell into the other mahal owned by the
other co-sharer. Held, that the partition effected
no change in the position of the tenant : so long as he
continued in possession of his occupancy holding
he could not be ejected from his house in the abadi
of the \'illage, nor could he be required to pay rent
therefor. Dharam Singh v. Bhoolar, All. Weekly
Notes (1908) 123, followed. Sundar Lai v. Chajju,
All. Weekly Notes {1901) 42, distinguished. Panna
V. Nazir Hussain, Alt. Weekly Notes (1902) 60,
doubted. Saddu v. Bihari Singh (1908)

I. L. R. 30 All. 282

14.

Allowance of time for

change of cultivation — -Irrigated and unirri-
gated land. WTiere a landlord claimed to revert to
nanjai rates of rent (rent assessed on irrigated land),
on the ground that he had repaired a tank which for
years had been unrepaired :^-Held, that a reason-
able time must be allowed to the tenant to prepare
for change of cultivation. Lakshmanan Chetti v.
KoLANDAivELu KuDUMBAN . I. L. R. 6 Mad. 311

15. Using land for briek-

jnaking — Changing the nature of the land — Injunc-
tion—Acquiescence of landlord. In a suit for a
perpetual injunction against the principal de-
fendants to stop the business of brick-making
.carried on by them on lands which they had taken

LANDLORD AND TENANT— confd.

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—<;o?ifeZ.

under temporary leases from their co-defendants,
who were holders of small jotes within the plaintiff's
zamindari and to recover damages for alleged in-
jury done to the lands, where the evidence showed
such a continued use of the land for twenty-five
years for the purpose of brick-making, as raised a
strong presumption of acquiescence on the part of
the landlord, and that, so far from injuring the land,
the defendants had placed it in a better condition
than it had been in previously : — Held, that no case
had been made out for the issue of an injunction.
Tarinee Churn Bose v. Ramjee Pal

23 W. R. 298

16. — Right of tenant

to change nature of land. No tenant

land is entitled, without some specific agreement on
the subject, to change the nature of that land, or to
make any permanent alteration in the state of the
landlord's property. If a person wishes to lease'
lands for the purpose of making bricks, that should
be the subject of a special agreement between the
parties, in the same way as when parties take lands
for building purposes. Anund Koomar Mooker-
JEE V. BissoNATH Banerjee . 17 W. R. 416

17. Planting a mango tope on

dry land — Forfeiture — Waste. In the absence of
local custom, tenants are not entitled to convert
land under cultivation into a mango grove.
Tenants from year to year are not at liberty to
change the usual courses of husbandry without
the consent of the landlord. Lakshmana v. Rama-
chandra . . . I. L. R. 10 Mad. 351

(d) Digging Wells or Tanks.

18.

Right to dig ■well—Mokurrari

tenure, holder cf. A mokm-rari raiyat may build a
well on his land or do anything that does not so
entirely destroy the land as to endanger the zamin-
dar's ground-rent. Dheput Singh v. Halal
Khoory Chowdhry . . "W. R. 1864, 279

19. Right of tenant

to dig well for use of himself and other residents in
village. A tenant with a right of occupancy, who
failed to show that he had a right, by custom or
otherwise to construct a well without his landlord's
permission, is not justified in constructing one, and
thereby infringing his landlord's rights, on the plea
that he built it for the use of himself and the other
residents of his village. Skinner v. Mahtab

4 N. W. 160

20. Custom— Ac-

quiescence of zamindar. Where a cultivator was in
the habit of digging wells to ii-rigate his field, de-
scribed as irrigated chobee, and from the practice
which had arisen under the old proprietors, the

{ 6397

DIGEST OF CASES.

( 6398 )

LANDLORD AND TENANT— conJ<Z.

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—contd.

{d) Digging Wells or Tanks — contd.

consent of the zamindar had not been thought
necessary : — Held, that the cultivator was entitled to
insist on his old right until by a new contract the
old terms of his holding were superseded. Maho-
med Fyzooddeen v. Imrut . . 3 Agra 285

21.

Breach of covenant not to

dig tank — Suit by zamindar. For breach of a
covenant by an ijaradar not to excavate a tank on
the lands leased to him, or, if so, to be liable to
eviction by the zamindar, and to pay the cost of
filling up the tank, no suit will lie at the instance of
the zamindar for the recovery of a fractional portion
of the lands covered by the lease, but the zamindar
may declare the lease cancelled and resume the
whole of the lands, or he may sue for cancellation of
♦he lease, and he may also sue for damages occa-
'loned by the excavation of the tank. Beer
Ohtjnder Manick v. Hossein . . 17 W. R. 29

22. Digging well or planting

trees "without permission — Ejectment — For-
feiture of lease as for breach of condition. The act
of digging a well or planting trees may not neces-
sarily imply or assert a proprietary right in the land
in which the well is dug or the trees are planted, yet
by the general law of the North-West Provinces a
.raiyat, even having a right of occupancy, being pro-
;hibitecl from doing certain acts, such as planting of
trees or digging wells, wdthout his landlord's consent
makes himself liable to ejectment, unless protected
by local usages, from his holding, if he were to dig
la well or plant trees without the landlord's consent.
jS. 6, Act X of 1859, which provides that a raiyat
•who has held or cultivated the land for more than
twelve 3^ears acquires a right of occupancy in it so
long as he pays rent for the same, must be read
30usistently with cl. 5, s. 23 of that enactment,
which provides that a raiyat is liable to ejectment
,"rom his holding for breach of contract, and not as
importing that a raiyat having a right of occupancy.
So long as he pays the rent claimable from him,
3 at liberty to use and deal \\'ith the land as he
pleases. The useful or beneficial nature of an act is
jiot a justification of it if it be a breach of contract.
a condition not expressly made between the parties

0 a contract may nevertheless be attached to such
contract by custom. The general rule that a raiyat
js liable to ejectment on the digging of a well with-
but the eon.seut of the zamindar may be varied by
particular local usage or express contract. KooxJ
Behary Patuck v. Shiva Baluk Sixoh

1 Agra F. B. 119 : Ed. 1874, 89
Power of tenants to con-

struct wells without consent of landholder
\-N. W. P. Rent Act {XII of ISSl), s. 44. Held.
[hat, having regard to s. 44 of the N.-W. P. Rent
^ct, 1881, an occupancy tenant maj', if such well be
■n improvment within the meaning of the section,
onstruct either a kutcha or pucca well on his

LANDLORD AND TENANT-con^i.

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—contd.

(d) Digging Wells ur Tanks — concld.
holding without any reference to the consent of the
zamindar. Raj Bahadur v. Birmha Singh, I. L. R.
3 All. S-5, and Muhamnutd Raza Klum v. Dnlip,
Weekly Note:- All. (1899) WS, referred to. Dhara.m-

R.4J KUNWAR V. Su.MERAN SiNOH

L L. R. 21 All. 388

24. Rule prohibiting tenant

from digging wells — Forfeiture for breach of
conditio7i — Liability to ejectment. Any rule which
prohibits a tenant from improving his holding is one
which, on grounds of public policy. Courts are bound
to restrain within its strictest limits. When a zamin-
dar insists on his right to prohibit the construction
of kutcha wells, he should be required to prove that
the right claimed by him customarily exists on the
estate. Forfeiture is not bound to be deemed the
invariable penalty for breach of contract occasioned
by the construction of a well. Wlien such for-
feiture is claimed, and the right to claim it is proved
the Court should consider whether an adequate
remedy cannot be secured to the landlord without
depriving the tenant of his whole interest in the
holding ; and if it finds that such a remedy can be
given, and that the tenant has not deliberately in-
vaded his landlord's rights, but, admitting his own
pusition as tenant, has acted in what he believed to
be the exercise of a right, or in the honest behef
that his act would not meet with objection on the
part of the landlord, it should refuse to oust the
tenant, and leave the landlord to seek a remedy
which would be more proportionate to the injury
he has sustained, and amplv relieve him from its
effects. Sheochurn v. Bussuxt Singh. Ram-
JUTHUN Singh v. ^Iehdee

3 N. W. 282 : Agra F. B. Ed. 1874, 258

25. Prohibition to excavation

of tank — Sub-tenant — Breach of stipul-.ition in
Icaf-e — Encavation of tan/:. The plaintitf let a piece
of land to M, and bv the terms of the lease it was
stipulated that the le.ssee should not excavate a tank
on the land. J\I sub-let the land to J and N. who
in the course of their occupation, excavated a consi-
derable plot of ground. The plaintiff thereujwn
brought a suit against M, J, and A' to have the
ground restored to its former condition, or for dam-
ages. The first Court gave a decree for the plaint-
iff. The Judge was of opinion that J and N, not
bein" parties to the original lease, could not be made
liable in the suit, and he dismissed the suit as against
them. The plaintiff appealed, making J and N
only respondents. HcUl. that J and N had no right
to use the land in contravention of the terms of the
lease, and that, if the plaintiff proved that their
acts were in breach of the stipulation in the lease
to M, he was entitled to the assistance of the Court
in getting the land restored as nearly as possible to
its former condition. Monindro ChcnderSirkar

V. MONEERUDDEEN BiSWAS

11 B. L. R. Ap. 40 : 20 W. R. 230

( 6399 )

DIGEST OF CASES.

{ 6400 )

liANDIiOKD AND TENANT— coniti.

15. ALTERATION OF CONDITIONS OF TEN

ANCY—contd.

(e) Erection of Buildings.

Right to erect buildings-

Tenant of non-agricultural land — Injunction to
restrain erection. Although Mhere land is let for
building pucca houses upon it, or where the tenant
with the knowledge of the landlord does in fact lay
out large sums upon the land in buildings or other
substantial improvements, that fact, coupled with a
long-continued enjoyment of the property by the
tenant or his predecessors in title, might justify a
Court in presuming a permanent grant, especially if
the origin of the tenancy could not be ascertained ;
yet the mere circumstance of a tenant occupying
buildings upon property will not justify such a pre-
sumption, unless it can be shown that they were
erected by him or his predecessors, because a land-
lord might let property of that kind as agricultural
land at will or from year to year. Prosunno
Coomaree Debea v. Button Bepary, I. L. B. 3 Calc.
696 : 1 C. L. B. 377, considered. Lai Sahoo v.
DeoNarain Singh, I. L. B. 3 Calc. 781, distinguished.
Where land has, \\ith the consent of the land-
lord, ceased to be agricultural, and the tenant has
since built a homestead or used part of it for tanks,
or gardens, the natm-e of the tenure is not thereby
changed, nor is the tenant thereby deprived of any
right of occupancy which he might have acquired.
See Nyamatoollah Ostagar v. Gobind Charan Dutt,
6 W. B., Act X, 40. Pkosunno Coomar Chatter-
JEE V. Jagun Nath Baisak . 10 C. Ii. B. 25

Reversing decision in Jagganath Baisak v. Pro-
SONNO CooMAR Chatterjee 9 C. L. R. 221

27. Erection of

buildings by tenant-at-will or tenant from year to
year — Determination of tenancy — Notice to quit.
There is no law in this country which converts a
holding at will from year to year, or for a term of
years, into a permanent tenure, merely because the
tenant, without any arrangement ^\ ith liis landlord
builds a dwelling-house upon the land demised
Prosonno Coomaree Debia v. Rxttton Bepary.
I. Ii. R. 3 Calc. 696 : 1 C. L. R. 577

28. Grant of land

— Presumption as to nature of tenure — Erection
of buildings — Bastu land — Suit to evict. " Where
it is conceded that lands were not let out for agri-
cultural purposes, but that they had ajjparently
been let out more than sixty years before suit for
building purposes, the defendant's ancestors having
erected thereon a house more than sixty years before
suit, and having, with the defendants, resided there
from first to last, the Court is at liberty to presume
that the land was granted for building purposes,
and that the grant was of a permanent character.
Prosonno Coomar Chatterjee v. Jagun Nath Bysack.
10 C. L. B. 25, followed. Prosunno Coomaree,
Debea v. Butten Bepary, I. L. B. 3 Calc. 696,
distinguished. Gunga Dhur Shikdar v. Ayi-
MUDDiN Shah Biswas . I. L. R. 8 Calc. 960

LANDLORD AND TENANT— con<d

15. ALTERATION OF CONDITIONS OF TEN

ANCY—contd.

(e) Erection of Buildings — contd.

s.c. Govinda Chundra Sikdar v. Ayinuddi:
Sha Biswas . . . 11 C. L. R. 28

29.

Occupancy of homesteai

land — Tenancy, determination of. The mere recorc
of the name of a tenant, who is found in occupa
tion of a particular piece of land, in settlemen
proceedings, and of the rent payable by him doe
not invest him with anj' permanent title to holi
it. Where an estate, at one time the property o
the Government, was as a khas mehal settlei
raiyatwari for a period of thirty years from 124']
and where in such settlement .4 was recorded a
tenant of the land at a stated rent: — Held, that th
Court was not bound to presume that the origin o
A^s title was a grant to continue in permanent pos
session. Prosunno Coomaree Debea v. Buttoi
Bepary, 1. L. B. 3 Calc. 696, and Addaito Charw
Dey V. Peter Das, 13 B. L. B. 17, followed. Art;
Sahoo v. Prandhone Pykura

I. L. R. 10 Calc. 50:

30.

Suit to compel tenants ti

clear lands of buildings and trees — Currenc
of lease — Cause of action. Certain landlords' suit
to compel their lessee's tenants to clear certai
lands of houses and trees, and to restrain them froi
building or encroaching in future, were held to I"
premature while the lease was running ; their caus
of action as regards any erection or planting sul
sequent to the date of the lease not arising until th
lease had expired. Lootf Ali v. Shib Dyal Sing
8 W. R. 51

31. Suit to eject tenant an

remove buildings — Unsubstantial or temporar
building. A claim to occupy a building cannot 1
maintained on the ground of a previous tenant
long occupancy of the land as against a landlord wl
has since the death of such tenant exercised rights (
ownersliip over the land. A decree for the remov;
of a building upon his land may be given to tl
owner, even though he has stood by and allowed tl
defendant to construct it, provided the building
not substantial and has not cost much, and tl
materials may be removed without difficult;
SuFDUR Ali Khan v. Jeo Narain Singh

16 W. R. 16

32.

Ejectment suit — Tenant e.

pending money on the premises. In a suit for ejec
ment it appeared that the defendants and the
father had occupied the premises in question fi
over forty years, and that the house, wliich ba
originally been a cow-house, had been altered 1
the defendants and converted into a dwelhng-hous
The District Judge found that, as the plaint
had allowed the defendants to rebuild and virtual
erect a new house, it would not be equitable to alio
lum to eject them from it, and be according
refused the plaintiff a decree for ejectment, b'
gave him decree against the defendants for thr

( 6401 )

DIGEST OF CASES.

( 6402 )

LANDLORD AND TENANT— confd.

16. ALTERATION OF CONDITIONS OF TEN-
ANCY—con<d.

(e) Erection of BurLDENCs — cond.

f years' rent. On appeal to the High Court, the
decree was varied by directing that the plaintiff
should recover possession of the land and house,
there being no evidence that the defendants had
entered on the land for building purposes or had
built " in the hope or encouragement by the plaint-
iff of an extended term or an allowance for ex-
penditure " (Ramaden v. Dynon, L. R. 1 H. L.
170) and consequently the defendants had no
equity against the plaintiff. Onkabapa v. Subaji
Pandurang. Subaji Pandurang v. Onkarapa
I. L. E. 15 Bom. 71

33.

Perpetual injunction — Speci-
fic Relief Act (I of 187 7), s. 54, els. (b), {c)— Injury
to interest in immoveahle property — Inapplicability
of remedy by compensation — Erection of dwelling-
house on agricultural land — Ameliorating waste.
A zamindar sued for an injunction to compel the
defendant, who held agricultural lands comprised
in the zamindari with occupancy-rights, to de-
mohsh a dwelling-house which he had erected there-
on for purposes not connected with agriculture, and
, to restrain him from altering the character of the
j land. Held, that the plaintiff was entitled to the
' injunction sued for. Ramanadhan v. Zamindar op
Ramnad . , . I. L. E. 16 Mad. 407

34. Law of landlord and

tenant as to building by the tenant on the
land — Acquiescence of lessor — Equitable estoppel
preventing ejectment — Gnus of proof. A lessor is
not restrained by any rule of equity from
bringing a suit to evict a tenant, the term
of whose lease has expired, merely by
season of that tenant's having erected
permanent structures on the land leased, such
l-uilding having been within the knowledge of the
lessor, and there not having been any interference
on his part to prevent it. To raise an equitable
estoppel against the lessor precluding him from
ling, on the determination of the tenancy, for

ssession, the tenant should show facts sufficient
■ '-> justify the legal inference that the lessor has by
plain implication contracted that the right of
ti nancy should be changed into a right of permanent
iieeupancy. Acquiescence by the lessor in this case
\\as a legal inference to be drawn from such facts
a^ were found. The onus of estabhshing sufficient
c:iuse for an equitable estoppel had not been dis-
cliarged by the tenant in this instance. Ramsden
V Dyson, L. R. 1 E. dc I. Ap. 129, and s. 108 of

• Transfer of Property Act, 1882, referred to.

-M Ram v. Kttndan Lal

L L. R. 21 All. 496 : L. R. 26 I. A. 58
3 C. W. N. 502

35. Erection of buildings by-
tenant on land —Acquiescence of landlord —
Compensation to tenant^Transfer of Property
'ct{IV of 18S2), s. 108. To resist ejectment by a

VOL. III.

LANDLORD AND TENANT-^ontrf.

15. ALTERATION OF CONDITIONS OF TEN-
ANCY—coR<(i.

(e) Erection op Buildings— coniJ.

tenant on the ground that the tenancy is a per-
manent one, and that the landlord stood by and
permitted him (the tenant) to erect pucca buildings
on the land in the beHef that the said tenancy was a
permanent one, it is incumbent on the tenant to
show that in erecting the buildings he was acting
under an honest belief that he had a permanent
right in the land, and the landlord, knowing that he
(the tenant) was acting under such belief, stood by
and allowed him to go on with the construction of
the buiklings. Beni Ram v. Kandan Lal, L. R.
26 I. A. 58 ; Ramsden v. Dyson, L. R. 1 E. <L- I.
Ap. 129 ; Jug Mohan Dass v. Pallonjee, 1. L. R.
22 Bom. 1 ; De Busche v. Alt, L. R. C'h. D. 286 :
Kunhamed v. Narayanan Mussad, I. L. R. 12
Mad. 320, referred to. WTiere it is proved that
the tenancy is not a permanent one, that the tenant
erected a pucca building on the land without the
consent of the landlord, the tenant on eviction is
not entitled to any compensation for the building
from the landlord. DatMraya Rayaji Pai v.
Hridhor Narayan Pai, I. L. R. 17 Bom. 736 ;
Yeshwada v. Ra7n Chunder, I. L. R. 18 Bom. 66,
distinguished. Ismail Khan Mahomed v. Jaigun
BiBi . . . . I. L. R. 27 Calc. 570
4 C. W. N. 210

36. Agricultural hold'

ings — Alteration of the character of the holding<i by
persons entitled to permanent rights of occupancy —
Remedy. The occupants of certain tope lands,,
forming portions of a zamindari, built a number of
tiled dwelling-houses, admittedl}- not for agricul-
tural purposes, thereon. But tlie terms of t)ie pattas
under which the lands were held, the rent paj-able,
was Hable to vary according to the use made of the
land. On a suit being brought by the lessees of the
zamindari for possession of the said lands, after
demolition of the buildings which had been so
erected : Held, that the buildings referred to
altered the character of the holdings ; and it was no
answer that there still remained as many trees as
originally had stood upon the land. Held, also»
that the act complained of did not amount to a
breach of the condition on wluch the land was held
so as to work a forfeiture of the tenure, which was
admittedly a permanent right of occupancy. The
appropriate remedy was for the houses to be
removed and the land restored to the condition in
which it was before its character had been altered.
Orr v. Mrithyunjaya Gurukkal (1900)

I. L. R. 24 Mad. 65

37_ , Buildings erected

by tenant — Transfer of Property Act (IV of 1882),

,<,. ]f)S Removed of buildings during continuance

of lease Rule of common law in India. Certain

land was leased in 1875 to a tenant for twenty
vears, it being recited in the lease that the tenant
took a lease of the land for constructing a building
thereon for the purposes of trade. A building was

( 6403 )

DIGEST OF CASES.

( 6404 )

LANDLORD AND TENANT— confd.

15. ALTERATION OF CONDITIONS OF TEN- i

ANCY—concJd. \

(e) Erection of Buildings — concld. \

erected, and it was not contended that it was of a '
kind diflerent from or of a value out of proportion j
to what was in the contemplation of the parties ,
Mhen the lease was entered into. At the expiration
of the term, the lessor sued to recover the land, but
he did not claim that the tenant was no longer at
liberty to remove the building (though this had not
been removed during the continuance of the lease).
On its being contended that the tenant was en-
titled to be paid the value of the building, which he j
had erected on the land before he could be evicted :
Held, that it is established that the maxim " qtiic-
quid incedificatur solo solo cedit " does not generally j
apply in India ; and even in cases to which the i
English law as such was applicable, the Indian !
Legislature, by Act XI of 1855, departed from that
maxim in the cases specified in s. 2 of that Act 1
(corresponding to s. 51 of the Transfer of Property !
Act). Both under the Hindu and the Mahomedan |
law (as well as under the common law of India) a j
tenant, \\ho erects a building on land let to him i
can only remove the building and cannot claim j
compensation for it on eviction by the landlord.
Mahalatchmi Ammal v. Palani Chrtti, 6 Mad. H.
C. 215, discussed. Ismai Kani Rowihax v. Naza-
KAI.I Sahib (1904) . L L. B. 27 Mad. 211

LANDLORD AND TENANT— cowW.
i 16. TRANSFER BY LANDLORD.

38. Indigo factory on land let

for cultivation — LcAnd Id for agricultural pur-
poses—Bengal Tenancy Act (VIII of 18%), s. 23—
Use of land consistent or not with ptirposes of
tenancy — Second appeal, jjower in, to deal with
findings as to whether erection of building; impairs
value of land or renders it unfit for cultivation. An
occupancj'-tenant can under s. 23 of the Bengal
Tenancy Act (VIII of 1885) " use the land in any
manner wliich does not materially impair the value
of the land or render it unfit for the purposes of the
tenancy." In a siiit for an injunction to restrain
the building of an indigo factory on land let for
agricultural purposes generally : Held, that the
question whether such a building conforms to the
restrictions in s. 23 must be considered with refer-
ence to the circumstances of each individual case,
the size of the holding and of the area withdrawn
from actual cultivation bj' the erection of the build-
ing, and the effect of such withdrawal upon the
fitness of the holding, as a whole, for profitable
cultivation. In tliis case, the District Judge
(reversing the decision of the Subordinate Judge)
found that the erection of the building did not
Impair the value of the land, and was in conformity
with the purposes for which an agricultural holding
is let, and dismissed the suit. Held, that the High
Court was not justified, on second appeal, in over-
ruhng those findings and laying down a broad rule
to the contrary without any regard to the above
consideration. Hari Mohan Misser v. Surendra
if ABA YAN Singh (1907) L L. R. 34 Calc. 718
L. R. 34 I. A. 138

Assignee of lessor — Assignee

of right to recover rent — Acquiescence of lessee.
Where a landlord assigns his right to another,
his lessee cannot put an end to the obligation to
pay rent, if, after becoming aware of the arrange -
ment, he made no objection, if the assignee dis-
possesses the lessee, he cannot sue the latter for
rent. Gotjr Dyal Singh v. Hubeel Hosseim

14 W. R. 83

Bight to rent —

Attornment by lessee. A party succeeding to the
proprietary rights of a lessor and dispossessing the
lessee cannot sue such lessee in the Collector's Court
for rent due from him as tenant, unless the latter
has previously attorned to him. Ram Lall Misser
V. Chundrabullee Da bee . . 13 W. R. 228

3. ^Liability for rent to

assignee of person admittedly in possession. A party
holding an assignment from the landlord to recover
rents from C, a :^egistered tenant, having sued
both C and D as co-tenants of the tenure, the
suit against D was dismissed by the lower Courts..
Held, that, as the assignment respected the rents of
that tenure and /)jhad admitted being in possession
of the land, the suit ought to have been allowed to
proceed against both. Dhoolee Chund v. RaJ-
Roop Kooer . . . 15 W. R. 107

4. — - Change in pro-
prietary title of estate — Right of patnidar to eject
tenant. A mere change in the proprietary title of an
estate does not entitle a patnidar, who holds from
the new proprietor, to eject a tenant who can prove
a right of occupancy Ram Ghose v. Radha Chctrn
Gangooly . . . . 15 W. R. 416

5. . . Transfer by land.

lord or person having right to receive rent — -Riglit
of asiigriee to re(d>ze rent. A, a zamindar granted
lands on kaul to B. B. assigned to G, but the
lands being mostly in the hands of cultivators
C only occupied those that had been in jB's posses-
sion. The kist fell into arrear, and A attached pro-
perty of d. Notice of the attachment was given
before, but the property was not seized till after the
whole of the arrears claimed had become due. G
resisted A's claim on the ground, substantially, that
the sum demanded included arrears which had ac-
crued on the lands not occupied by him. Held, that,
as to the lands of which G had obtained the actual
possession, there was such a privity between A and
G as gave A a right to realize the amount of kist
outstanding in respect of those lands. Held, also,
that this right was not affected by failure to prove
the execution of a muchalka by C to A, or by the
omission to furnish G with a list of the property
attached. Kamala Nayak v. Ranoa Rau

1 Mad. 24

6. Sale of zamin-

dar's rights — Right of purchaser to rent. If, vv^hen
a judgment-debtor's rights and interests in pro-
perty are sold, the property is lawfully in the pos-

( 6405 )

DIGEST OF CASES.

( 6406 J

XANDLORD AND TENA-NT-contd.

16. TRANSFER BY LANDLORD-^onicZ.

session of tenants, the proper course is not to dis-
pute their lawful possession and occupation, but to
place the purchaser in a condition to receive from
them the rents in the [)lace of the judgment-debtor.
Uncovekanted Service Bank v. Palmar

2 N. W. 456

* • PurcJta.ier of

tamin'Iari, right of, to rent. Where a party pur-
chases another's zamindari rights in an estate in
■which that other had created an under-tenure with a
fixed rent, the circumstance that payment of rent on
account of such tenure was suspended while the
zamindari was in the hands of the former proprietor
does not affect the rights of his successor or the
fixity of the rent. Gudadhur Lalt, v. Ram Jhan
GUNDEREE . . . 10 W. R. 212

8- ■ Suit for rent —

Bengal Teimncy Act (VIII of 1885), s.s. 72
and 73— Rule 3, Ch. I of the Rules made hy the
Local Government under cl. (2) of s. 189 of the Bengal
Tenancy Act — Liahility for rent on change of land-
lord— Notice of transfer— Transfer of patni right
over a specific area, lohether valid — Reg. VIII of
1819, ss. 3 and 6— Transfer of Property Act (l V of
1882), s. 6. Patni right over a specific area lying
within a patni talukh is transferable. Sub-sl
(7) of s. 72 oC the Bengal Tenancy Act does not re •
quire that the notice therein contemplated should
be given in any particular manner. Madhctb R im
V. DoyAL Cha:td Ghose I. L. R. 25 Gale. 445
2 C. W. ]Sr. 108

Position of ten-

ant-at-will paying rent and the purchaser. Wher(
a party occupies land within a zamindari with the
zamindar's permission as a tenaat-at-will, on the
terms of paying rent, a purchaser of the zamindari
has a right to treat him as his tenant unless the
zamindar has transferred his risht, e. g., bv grant-
ing a patni for the fand to a third party. in°a suit
by such purchaser against such tenant, in which the
third party intervened, the issue whether the zamin-
dar transferred his rights to the plaintiff or had
previously transferred them to tlie intervenor was
material. Gooroo Prosunxo Banerjeb v. Sre-
oopal Pal Chowdhry . . 20 W. R. 99

■•■O' Purchaser at sale

for arrears of revenue— Alteration in payment of
rent. The purchasers of a zamindars right by
havmg their shares separately recorded in the Col-
lector's office under Act XI of 1859 do not acquire
any right to alter the position of tenants as regards
the manner in which rent is to be paid, so long as the
|latter hold over after the expiry of a settlement.
Delauny v. Kofiloodeen . 25 W. R. 35

I ■*■•*■• : Suit by purchaser

of ?noiety of talukh for rent. Where the plaintiff,
after purchasing from S a moiety of a talukli
|which had been previously let in "ijara on a lump
,]umma to T, brought a suit under Act X of 1859
against the lessee to recover that portion ol the

LANDLORD AND TENANT—ionM.

16. TRANSFER BY LANDLORD— con<i.

whole rental property accruing on the talukh pur-
chased, and the suit was dismissed on the ground
that the ijara kabuhat did not specify the propor-
tion of rentjdue upon the talukh, it was held in a
subsequent suit brought against S and T, for a de-
claration of title and for rent from the time of the
purchase, that, as the lessee had no explicit notice
of the purchase and no apportionment had been
made with her consent of the rent payable on the'
share sold, she would be justified in continuing to
pay the rent as a whole to the original lessor.
TaRAMONEE DoSSEE v. PUNCnANUN Bose

18 W. R. 508

12. Arrangement be-
tween landlorl and tenant binding a purchaser. A
purchaser of land is bound by a contract between
his vendor and a tenant, which is secured by the
rent of the land remaining in the hands of such
tenant, the contract being in the nature of an assign-
ment of rent of the property sold. Chooramtjn
Singh v. Patoo Kooer . . 24 "W. R. 68

13. Mortgagee after

foreclosure and tenant of mortgagor. A mortgagee
who has foreclosed his mortgage is not entitled to
rent from a tenant of the property from the date of
the foreclosure, but from the date on which he has
perfected his title and the tenant has notice of his
having done so. Raisuddin Chowdhry v. Khodtt
Newaz Chowdhry . . . 12 C. L. R. 479

14.

N.W. P. Rent

Act (XII of 1881), ss. 7, 95 (I)— Determination of
rent by Revenue Court — Suit for arrears of rent as
so determined for period prior to such determina-
tion. An application was made in the Revenue
Court under s. 95 (I) of the N.-W. P. Rent Act (XII
of 1881) by the purchaser of proprietary rights in a
mehal, for determination of the rent payable by his
vendors, who had become, under s 7, his ex-pro-
prietary tenants in respect of the land they had pre-
viously held as sir. The Revenue Court, by an
order dated the 18th February 1884, fixed the rent
at a particular sum payable annually, after making
the deduction of four annas in the rupee required by
s. 7 of the Rent Act. In May, I SS4, the purchaser
sued the ex-proprietary tenants to recover from
them arrears of rent at the sum so fixed, for a period
of three years prior to the Revenue Couit's order.
Hdd by the Full Bench, that the plaintitf was en-
titled to recover arrears of rent for the j-ears in suit
at the amount determined by the Revenue Court's
order of the ISth February 1884, subject to any
question of limitation that might arise. Ma ha dbg
Prasad v. Mathfra . . I. L. R, 8 All. 189

15.

Bengal Tenancy

Act (VIII of 1885), s. 72— Transfer of kindlord'g
interest — Liability to pay rent — Payment to trans
feror — Notice by transferor and not by transferee.
Where a landlord transferred his interest to another
person, and the tenant got notice of the transfer
from the transferor, but the transferee did not give
any notice : Held, that payments of rent made by

9s2

( 6407 )

DIGEST OF CASES.

( 6408 )

IjANDLORD and TENANT— conYrf.

16. TRANSFER BY LANDLORD— concW.

the tenant to the transferor after such notice were
not vahd payments, and the transferee was en-
titled to claim the same from the tenant. The
object of sub-s. (2) of s. 72 is to relieve the trans-
feree landlord from the necessity of giving notice
to each tenant individually : it does not say that
such a notice shall be a necessary notice. Nobin
Chandea Chowdhury v. Stjrendra Nath Ghosh
(1902) . . . . 7 C. "W. N. 454

16, . Mortgage of liold-

ing by landholder to tenant- — Mortgagee'' s rights
as tenant not merged in his rights as mortgagee.
The fact of a tenant's taking a mortgage of land
comprised in his holding from, his landlord does
not itself extinguish the tenancy by merging the
rights of the tenant in those of the mortgagee.
The effect of such a mortgage on the tenant rights
would be merely that they would be in abeyance.
When the landlord redeemed the mortgage, the
parties would revert to their former position, and
the landlord would not be entitled to get possession
of the land except by ejecting the tenant in due
course of law. Kali.it v. Diwan (1902)

I. L. R. 24 All. 487

17. TRANSFER BY TENANT.

1. ^

Kight to sub-let — Tenant with
permanent right of occupation. A tenant who has
a permanent right to the occupancy of land
subject to payment of fair and equitable rent has, as
a matter of course, a right to sub-let the land to the
extent of his own interest therein. Khosiial Maho-
med V. JOYNOODDEEN . . 12 W. B. 451

Limit of power —

Under-lease specifying no term. A lessee cannot
make an under-lease for a longer time than liis own
lease, nor is he the agent of the landlord so as to
bind him by granting leases for any time he may
think fit. Where an under-lease speciiies no term
of tenancy, it cannot be construed to have effect be-
yond the interest of the granter. Hurish Chunder
Roy Chowdhry v. Seee Kalee Mookerjee

22 W. R. 274

3. Limit of power

■ — Expiration of primary lease. Held, that no farnier
can, during the term of his lease, create for Mm
a sub-tenure which is to endure after the lease ex-
pires, to the prejudice of the owner whose lecvm
tenens he is ; and that no occupancy or jotedari
rights, which relate to a specific extent of laud,
could be acquired in respect of an undivided share
of an estate. Shooeut Soondry Dabee v. (Eijsny)
Jardine, Skinner & Co. . . 25 W. R. 347

4. ■ — _ — . Sub-lease —

Position of sub-tenant — Privity of contract — Eject-
ment— Notice to quit — Bombay Land Bevenue
Code {Bombay Act V of 1S79), s. 84. A sub-lease
differs from an assignment of lease in that it creates
no privity of contract between the sub-tenant and
the landlord. The landlord has to deal with liis

LANDLORD AND TENANT— confi.

17. TRANSFER BY TENANT— co»fi.

lessee and not with the sub-tenants of the latter.
A landlord putting an end, by proper notice, to the
tenancy of his tenant thereby determines the estate
of the under-tenants of the latter. Timmappa
KuppAYYA V. Rama Venkanna Naik

LL.R. 21Bom.31I

Sub-letting —

Sub-lessee, rights and liabilities of — Sale of lessee^s
interest, effect of. B held certain land as a lessee
under M. The lease did not contain any covenant
against sub-letting, or any forfeiture clause. B sub-
let a portion of the land demised to A. M obtained
a decree against B for arrears of rent, and in execu-
tion attached and sold the entire holding including
A' 8 interest as a sub-lessee. Held, that the sale in
execution did not affect the sub-lessee's interest in
the land or put an end to the sub-lease. Vishnu
Atmaram v. Anant Vishnu I. L. R. 14 Bom. 384

N.-W. P. Rent

Act (XII of 1881), s. 9 — Ex-proprietary tenant,
power to sub-let — Right of occupancy. An ex-
proprietary tenant can sub-let the whole or any
part of his occupancy holding, and such a sub-letting
is not forbidden by s. 9 of Act XII of 1881. Khiali
Ram v. Nathtj Lal . . I. L. R. 15 All. 219

N.-W. P. Rent

Act (XII of 1881), s. 9 — Occupancy-tenant, power
of, to sub-let — Perpetual lease by occ2ipancy tenant.
The effect of a perpetual lease made by an occu-
pancy tenant of his occupancy holding to a person
not a co-sharer in the right of occupancy considered.
Mahesh Singh v. Ganesh Dube

I. L. R. 15 All. 231

N.-W. P. Rent

Act {XII of 1881), s. 31— Lease of occupancy-hold
ing — Relinquishment of holding pending term of
lease. Where an occupancy tenant grants a lease of
land forming part of liis occupancy holding for a.
term of years, he cannot during the subsistence of
such term relinquish his holding to the zamindar
so as to put an end to his lessee's rights under the
lease. Khiali Ram v. Nathu Lal, I. L. R. 15 All.
219 ; Hoolassee Ram v. Porsutum Lal, 3 N. W. 63 ;
Heeramonee v. Ganganarain Roy, 10 W. R. 3S4 ;
and Nehalunnissa v. Dhunoo Lal Chowdry, 13 W. B.
281, referred to. Suhu v. Tafazzul Husain Khan,
I. L. R. 16 All. 398, distinguished. Badri Prasad
V. Sheodiuan . . . I. L. R. 18 All. 354
9. .^ Bengal Tenancy

Act (VIII of 1885), s. 8-5 — Landlord and tenantr-
Sub-lease of a raiyati holding by a registered in-
strument for a period of more than nine years whether
valid. A sub-lease of a holding by a raiyat without
the consent of the landlord, though created by a re-
gistered instrument, is altogether void under s.
85 of the Bengal Tenancy Act. Seikant Mondul
V. Saroda Kant Mondul I. L. R. 26 Calc. 46

10.

Transfer of Tenancy-

Fear/?/ : tenancy — Consent of landlord. A yearly
tenancy cannot be transferred without the lessor s
consent, and the fact that the lessee had had enjoy-

( 6409 )

DIGEST OF CASES.

( 6410 )

liANDLORD AND TENANT— co»<d.

17. TRANSFER BY TENANT— con^ci.
ment under the pottah for a very long series of years
does not alter the character of the interest originally
created bv the pottah. Lalljee Sahoo v. Birtro-
wanDoss . . . . 8W. R.337
IL -^ Consent of land-
lord—Purchaser from tenant. The purchaser of a
raiyati tenure is bound to communicate with the
zamindar and obtain his consent to the transfer of
the tenure ; without this being done, a gomastah's
receipts of rent are not binding on the zamindar.
Bhojohukee Baxick v. Aka GoLAJi Ali

16 W. B. 97

12. . - Transfer of non-

iranx'ferahle tenure— Bight of purchaser against
tran,tferce of raiyat. Where proprietors purchased a
-tenant's rights'and sued to eject one, who alleged
that he held the pottah from the tenant, it was held
that the tenant, being a simple raiyat without trans-
ferable rights, could not give a third party any
right of possession as against the proprietors of the
estate, and that the holder of the pottah from the
tenant was a mere trespasser. Omar v. Abdool
Gttffoor . . . . 9W. R.425

13.

Knrpha tenant

Transferable tenures. The jummai rights of a kur-
pha under-tenant are not transferable without the
consent of the raiyat landlord. Bonomali Baja-

DUB V. KOYLASH ChUNDEB MoJOOMDAR

I. L. R. 4 Calc. 135

14.

Transfer hy

.tenant of mirasi rights — Acknowledgment of transfer
by landlord. The right of transfer of mirasi rights

.although by no means commonly enjoyed by tenants
in these provinces, is nevertheless in some places
sanctioned by local usage. Where a person has
made such a transfer without authority, it should
nevertheless be enquired into ^^•hother or not the
landlord has sanctioned such transfer by accepting
the assignee as tenant and receipt of rent. Kooer-
TA V. DooRGA Peeshad . 2 N. W. 139

15. Suit for rent of

■transferable tenure — Possession of hoMer. The
person into whose hands a transferable tenure comes
is bound to pay rent to the landlord, unless kept out
of possession and enjoyment by the fault of the land-
lord, and the landlord's right to claim rent from his
tenant does not depend ui^ou the fact of possession
by the tenant. Gobind Chtjnder Chunder v.
Kristo Kanto ]>utt . . . 14 W. R. 273

16. Liability for rent

— Party in possession. A landlord seeking to
recover rent is not bound to proceed against any
person who may have any latent beneficial right to
the tenure in respect of which the rent has fallen
due, but against that person only who may be found
in possession thereof with a legal i-ight. Tilock
Chunder Chuckbbbutty v. Gourmonee

2 Hay 364

17. — Liability for rent

— Registered tenant. When arrears of rent be-

LANDIiOKD AND TENANT— ccnfd
17. TRANSFER BY TENANT— :on<f?.
come due, a zamindar is not bound to look beyond
his book for the party liable, except when he has
recognized other persons as his tenants either by
receipt of rent or in other ways. Ancn'd Moyee
Dassee v. Mohindro N.A.RAIX Dass 15 W. R. 264

18.

Suit for rent

against person in possession though unregistered. An
action for rent does not lie against a person said
or shown to be in possession of a tenure which is
written in the books of the zamindar in the name of
a different person unless there is a contract for rent,
express or implied. Eshan' Chuxder Ghossal r.
BuRxo Moyee Dossee . . 16 W. R. 233

19. — Liability for rent

— Unregistered transfer. Where there has been
neither an entry of the transfer of the holding in the
serishta of the zamindar nor anything in the way of
acceptance or recognition by the zamindar of the
transferee as his tenant, the original tenants are not
exempted from their responsibility to pav the rent.
MoTEE Roy v. Meajan . . 20 W. R. 443

SuRooP Chunder Mitter v. Dhonaye Biswas

23 W. R. 103

20.^ Transfer of raiyati

jote — Unregistered occupier — Person in possession.
in the case of transfer of a mere raiyat 's jote,
the person in possession is liable for the rent
whether he is registered or not. Guxga Ram Sra-
DAR V. BmEssuR Banerjee, 6 W.'R., Act. X. 32

MissLEBACK V. LucHMEE Narain 17 "W. R. 504

21.

Sitit for rent

Possession — Registration of tenants. A suit for
rent against several parties is maintainable against
such of them as are shown to be in possession as ten-
ants, whether they are registered or not. Jerabut-
OONISSA Khanum v. Ram Chuxder Doss

6 W. R. Act X. 36

22. ■ Non-registration

of transfer. When a tenure is not transferable,
and no transfer has been consented to or adopt-
ed by the zamindar the zamindar is entitled to
treat" the incoming raiyat as a trespasser, and to
evict him even in the middle of the year. But
when a teniu-e is transferable, the mere absence of
registration, or of acknowledgment of the zamin-
dar's right by the raiyat, will not make the raiyat
such a trespasser as to justify the zamindar in
evicting him in the middle of the year. Hctbro
Mohun^MookebJee v. Chixtamoxee Roy

2 W. R. Act X, 19.

23. Non-registration

of transfer. Non-registration in the zamindar '•
serishta does not invalidate the sale of a tenure.
Bhabut Roy v. Gaxgaxarain Muhaputtar

14 W. R. 211

24. Unregistered

transferee. The unregistered transferee of a trans-
ferable tenure cannot be treated by the zamindar af
a trespasser, but, as against the zamindar who has
evicted him, has a right to be restored to possession .

( 6411 )

DIGEST OF CASES.

( 6412 )

liAMDLOED AKTJ TEWANT— conft^.
17. TEANSFER BY TENANT— co»i<rf.

NOBEEN KiSHEN MOOKEEJEE V. SHIB PeESHAD

Patttjce 8 "W. R. 96

Upheld on review . . . 9 W. R. 161

25. Unregistered

transferee. Per Kemp, J. — On the death of a regis-
tered patnidar, a zamindar is not bound to recognize
any one as his tenant without registration in his
serishata ; nor is he prevented from putting in a seza-
wal to collect the rents until a declaration of the
rights of the deceased patnidar's heirs. Ram
Chuen Bandopadhya v. Deobo Moyee Dossee
17 W. B. 122

26. Achiouiedgment

of tenancy — Non-registration and miitation of nanus.
A zamindar is bound to sue the actual tenant
■v^hen known to him, though the tenant's name
has not been registered in his serishta. There can
be a legal and valid recognition by a landlord of the
vendee of a saleable under-tenure as tenant, not-
withstanding that no mutation of names has taken
place in his books. Meah Jan v. Ktjeeunamayi
Debi 8 B. L. E. 1

27.

Ad X of 1S59,

s. 27 — Division of rent or tenure. The lessor is not
bound to recognize the title of any one except
the person with whom he deals, whatever that title
may be as between the lessee and the members of
his family. Upendea Mohun Tagore v. Thanda
Dasi . . . . 3 B. L. B. A. C. 349

S.C. WOOPEKDEO MoHUN TaGOEE V. ThAIsDA

Dossia 12 "W. B. 263

Sadhan Chandra Bose v. Guetj Charan Bose
8 B. L. B. 6 note : 15 W. B. 99

28.

Liability for rent

—Mortgagee in possession — Transfer of Property
Act av of 1882), ss. 65, 76. Where the subject
of a mortgage is leasehold property, and the
mortgagee is put into possession under circum-
stances -which amount to an assignment or transfer
of the leasehold interest, the mortgagee becomes
liable, as a rule, to pay the rent ; but where the
mortgagee is in possession and his name is regis-
tered in the landlord's books as the tenant, there
can be no doubt as to his being liable for the rent.
Kannye LallSett v. Nistariny Dossee

I. L. B. B. 10 Calc. 443

29.

Purchaser of khas

mehal — Registration of tenures. The purchaser of
a Government khas mehal is not bound by the
transfer of the rights of any of the original
tenants, which have never been regivStered or recog-
nized by himself or by Government, but can sue the
original tenants for their arrears of rent. Hiiro

MOHTJN MOOKERJEE V. RaJVI COOMAE MitTER

1 W. E. 225

It is other\\ise if they are registered. Hubeo-

■MOHTTN MoOKEEJEE" t'. GoLUCK MUNDUL

1 W. E. 351

LAK-DLOED AKT> TEWANT-^oni^?.
17. TRANSFER BY TENANT— conR

SuTTo Chuen Ghosal v. Obhoy Nttnd Doss
2 W E., Act, X, 31

30. Failure to obtain

registry of name — Purchaser, position of. Where
the purchaser of a patni taluldi fails to obtain
registry of his name in the zamindar's books, a
third party who claims to derive his title from the
purchaser's vendor has no right on the ground of
such failure to treat the purchaser as his tenant.
Ram Naeain Doss v. Tweedie 12 W. B. 161

31.

■ Eight of purchaser

— Under-lessee s. ..4 agreed to take at a stipulat-
ed rent a portion of the property leased to B
for the remainder of B's lease. Almost immediately
after, B surendered liis lease to the landlord ('S),
■who gave a fresh lease to R, to whom he afterwards
sold all his rights. A continued in occupation some
time, and on relinquishing was sued for rent at the
stipulated rates. A denied abihty, alleging that
he had made no agreement with R, but, from the
time of R\s pm-chase, had held under liim as a
tenant-at-^^'ill. Held, that A was bound, under the •
terms of his contract, to pay the rent for as many
3'ears as the lease had to run to his lessor, or to the
person who represeuted his lessor. Rushton v.
Atkinson . . . . 11 W. B. 485

32. ■ Liability for rent

accruing before tenanVs possession — Liability of
transferee of lease for rent. Except under special
circumstances, which the plaintiff must prove,
a tenant defendant cannot be held liable for the
rent which has accrued due prior to his taking pos-
session. Hence if A leases land to B, who transfers
the lease to C, and C mortgages to D, v/ho after-
wards forecloses his mortgage and takes possession
of the demised premises. D cannot be held liable for
any rent which has accrued due prior to his taking
possession. IMacnaghten v. Lalla Mewa Lall

3 C. li. B. 285

33. Non-registration

of tenure — Rocognition of transfer of Unure. A
patnidar is not bound to recognize any purchaser
by private sale as his dar- patnidar until he registers
his name in the zamindar's serishta, and any pro-
ceeding held against the old dar-patnidar for the
recover}' of arrears of rent without making the
purchaser a party to it is perfectly legal. Bis-
somoyee Dossee v. Mackintosh . 2 Hay 14

34. Transfer of

permanent hereditable tenure — Forfeiture — Sarbara-
kari tenure. A zamindar is not bound to recog-
nize the transfer of a permanent hereditable tenure
effected without his consent, and cannot be compell-
ed to register such transfer in his serishta ; but the
fact of such improper transfer does not deprive the
old sarbarakar of his rights, or entitle the zamin-
dar to get khas possession. Kasheenath Punee
V. Lttkhmonee Peeshad Patnaik 19 W. E. 99

35.

Transfer defeat

ing right of re-entry. Even where a lessee's interest-

6413 )

DIGEST OF CASES.

( 6414

LANDLOED AND TENANT— conic/.

17. TRANSFER BY 'rE^AKT—contd.

is transferable, the landlord is not obliged to recog-
nize a transfer, if the effect of so doing would be to
defeat his own right of re-entrj-. Nund Kishore
Singh v. Ismed Kooer . . 20 W. B. 189

36. Liahility for rent

— Eegistration of tenant — Transfer ivifhoiit landlord's
knowledge. Where a landlord registers a new
tenant with his express or implied consent in the
place of the old tenant, the new tenant becomes for
the future as much personally liable for the rent as
the old tenant was ; and this personal liability
continues, notwithstanding a fresh transfer or devo-
lution of the tenure, unless projDer steps are taken
to apprise the landlord of the change and to have it
registered in his serishta. Dwarka Nath Mitter
V. "JS'OBONGO MtTNJORi Dassi 7 C L. R. 233

37.

AcknoicUdgment

of tenancy — Regiitration of transfer — Deposit of
rent. The mere deposit of rent in the Collector's
office by the purchaser of an under-tenure in his own
name and that of the registered tenant is not suffi-
cient notice to the zamindar of such purchase ; nor
is the mere acceptance b}- the zamindar of rent so
paid an acknowledgment on his part of the pur-
chaser as his under-tenant, but it is otherwise when
there is acceptance with notice, notwithstanding
that the transfer has not been registered. Mrityun-
jAYA Sircar v. Gopal Chandra Sircar

2 B. L. B. A. C. 131
Gopal Chunder
10 W. B. 466
Transfer by re-

S.C. Mritunjoy Sircar
SmcAR

gistered tenant — Sale in execution of decree — Re-
ceipt of rent — Acknowledgment of tenancy — Bengal
Act nil of 1S65. s. 16. The plaintiffs were share-
holders with one £ in a tenure, of which B was the
registered tenant, but of which he had assigned part
to the plaintiffs without the consent of the zamin-
dar. In execution of a decree against 5 for arrears
of rent, the plaintiff's portion was sold and pur-
chased bj- the defendant. In a suit by the plaintiffs
to set aside the sale and recover their property :-
Held, that they were pecuniarily liable for the rent
■with B, unless the zamindar had made a separate
agreement with them ; that the whole tenure was
rightly seized and sold in execution of the decree ;
and that the taking of the rent from them bj- the
zamindar was no such recognition as to bind him
or create a valid incumbrance under s. 16, Bengal
Act VIII of 1865. Srinath Chuckerbutty v.
Srimanto Lashkar

8 B. L. R. 240 note : 10 W. B. 467
39. _. Tran^ffT trithout

consent of zamindar — Right of zamindar to sell
tenure for arrears of rent — Recognition of transferee,
A tenant cannot, by merely alienating his tenure,
deprive the zamindar of the right which he would
otherwise have to sell it in execution of a decree for
arrears of rent. A zamindar can sell the tenure in
the hands of the transferee, not being one of the

LANDLOBD AND TENANT— 3onf<f.

17. TRANSFER BY TENANT— con^d.

judgment-debtors, if he does so with reasonable
promptness : provided he has not done anything to
recognize the transfer. Where a zamindar makes a
' transferee a party to a suit for rent and accepts a
j decree against him jointly with other persons, he
j must be held to have recognized the transferee as a
I tenant, although the latter's name may not have
I been entered as such in the zamindar's book. Ram
I Kishore Achaejee Chowdhry v. Krishno Moxee
j Debia . . . . 23 W. B. 106

I 40. Liability for rent

i — Non-registration of tenure. A, the lessee of
I a transferable tenure, transferred his interest to B,
but after the transfer the name of A remained
as registered tenant. Subsequently the zamindar
brought a suit against A for arrears of rent which
accrued due partly before and partly after the pur-
chase, and obtained a decree for the sale of the
tenure. Held, that the decree might be executed
against the tenure, though the latter was in B's
possession before it was passed, it not appearing that
the zamindar had knowledge of the transfer before
the date of the decree. Wooma Churn Ch-\tterjee
V. Kadambini Dabee . . 3 C. L. B. 146

See NoBiN Chunder Sen Chowdhry r. No bin
Chunder Chuckerbutty' . . 22 "W. B. 46

41.

Position of pur-

chaser— Act X of 1859, s. 21. A decree against
a vendor obtained before a Collector cancelling a
pottah of a jote which has been sold is not binding
on the purchaser of the jote, if the purchase was
made before the transfer of the tenure to him took
place. The purchaser, having entered into pos-
session, became a " raij-at holding under a pottah,
the term of which had not expired," within s. 21,
Act X of 1859, and therefore could not be ejected
otherwise than in execution of a decree made in a
smt against himself. Lalljee Sahoo v. Bhugwan

DOS.S 8 W. B. 337

42. Suit for rent —

Liability of tenure for rent — Rent due by former
tenant. A decree for rent obtained by a landlord
against his registered tenant renders the tenure
comi^rised in the decree liable for sale, although such
tenure may ha ve'passed into other hands than those
of the judgment-debtor. The landlowl's remedy is,
however, in such case strictly confined to the sale of
such tenure under his decree. He cannot make a
tenant personally liable for rent which accrued due
before such tenant became the owner of the tenure.
The remedies which are provided by the Rent Law
for enforcing the payment of rent by sale of the
tenure or by distress are remedies in rem. The per-
sonal liability of one tenant cannot be transferred
to another. ' Rash Beh.\ry Bundi ipadhya v.
Peary Mohun Mookerjee I. li. B. 4 Cale. 346
3 C. L. B. 116

43.

Enhancement of

rent. Suit for — Transferable tenure — Mutation of
names — Tenant u'ho ha.s transferred his holding.
Liability of, for rent. The main object of a suit for

( 6415 )

DIGEST OF CASES.

( 6416 )

LANDLORD AND TENANT— conW.

17. TRANSFER BY TENANT— contd.

enhancement is to have the contract between the
landlord and tenant as regards the rate of rent re-
adjusted. In a suit for enhancement it was found
that the defendant had, prior to institution, sold his
holding, which by custom was transferable without
the consent of the landlord, to a third party. There
had been no mutation of names, or payment of a
nazar, or execution of fresh lease ; but the landlord
had received rent from the third party and was
fully aware of the transfer. Held, that the connec-
tion of the defendant with the holding had come to
an end, and the suit against him did not lie. Abdul
Aziz Khan v. Ahmad Ali I. L. R. 14 Cale. 795

44. - Mortgage of oc-

cupancy holding — " Act inconsistent with the pur-
pose for which the land was let ' ' — Suit to eject mort-
gagee in possession — N.-W. P. Rent Act (XII of
1881), ss. 9 and 93. *A mortgage of his holding by
an occupancy tenant, under which the mortgagee
obtains possession, is not an act ' ' detrimental to
the land " or " inconsistent with the purpose for
which the land was let ' ' within the meaning of s.
93 (b) of the N.-W. P. Rent Act (XII of 1881).
An act detrimental to the land means an act which
injures the land itself. An act inconsistent with
the purpose for which the land was let must be some
such act as the making of a tank, or the altering
the character of the land, as, for instance, turning it
from agricultural land to building land. But a
mortgage with possession, whether the possession is
given at the time of the granting of the mortgage, or
is obtained later by virtue of the mortgage, is a
transfer within the prohibition of s. 9 of the N.-W.P.
Rent Act. Madho Lal v. Sheo Prasad Misr
I. L. R. 12 All, 419

45. Transfer of por-
tion of makurari tenure — Bengal Tenancy Act
(VIII of 1886), ss, 17, IS and 88— Rights of pur-
chaser or transferee of tenure — Right, of suit.
There is nothing in s. 88 of the Bengal Tenancy Act
to prevent a person who has purchased a share in a
mokurari holding from bringing a suit for a declara-
tion of his right to that share and for possession of
the same after setting aside a sale held in execution
of a decree for rent to which he was not made a
party. Ss. 17 and 18 of the Bengal Tenancy Act
recognize the transfer of a share of a holding, "and
enable the transferee to be regarded as one of the
tenants in respect of the holding. Mohesh Chtjn-
DER Ghose v. Saroda Prasad Singh

I. L. R. 21 Calc. 433

46 Transfer of Pro-

perty Act (IV of 1882), s. 108, cl. (j)— Transfer
by lessee — Lessor's right to sue both lessee and his
transferee. The provision in s. 180 of the Trans-
fer of Property Act that a lessee may transfer
absolutely or by way of mortgage or sub-lease, the
whole or any part of his interest in the property, and
that the lessee shall not, by reason of such transfer,
cease to be subject to any of the liabilities attaching
to the lease, does not prevent the transferee being

LANDLORD AND TENANT— co»«d.
17. TRANSFER BY TENANT— co»a

also liable to the lessor, who may at the same time
sue the lessee upon his express covenant, and the
transferee upon the privity of estate, though he can
have execution against one only. Kunhanujan v.
Anjelu . . . L ii. R. 17 Mad. 296
47. . — ■ ■ Transfer of Pro-
perty Act (IV of 1882), s. 108— Transferability
of agricultural and non-agricultural holding — Law
before the passing of the Transfer of Property Act.
Before the Transfer of Property Act was passed,
there was no distinction drawn between agricul-
tural and non-agricultural tenancies, and there
was no law under which, before the passing of the
Transfer of Property Act, agricultural holdings
could be transferred against the will of the landlord
or sub-divided A\ithout his consent. Madhab
Chandra Pal v. Bejoy Chand Mahatab

4 C. W. N. 574

48.

Transfer of Pro-

perty Act (IV of 1882). s. 108, cl. (j)— Liability
of a lessee for rent after transfer — Leases of non-
agricultural character. To suits brought by a land-
lord against his lessee for rent based upon kabu-
Hats, the leases being of a non-agricultural charac-
ter, an assignee of the lessee «^as of made a party
defendant on his own application. It was con-
tended on behalf of the lessee that under the com-
mon law of India it was competent for the tenant to
rid himself of his liability by assignment or at any
rate by assignment and notice thereof to his land-
lord. Held, that, if there was such a common law
in India enabling the tenant to put an end to his
liability by transfer and notice, it did not at all
events extend to leases of a non-agricultural charac-
ter ; and that s. 108, cl. (/), of the Transfer of Pro-
perty Act, which governed the case, must be con-
strued without reading it as governed by, or in-
terpreted with reference to, any such principle ;
and that, after a transfer by the lessee and notice
thereof to the landlord, the liability of the lessee
would not cease, merely at his pleasure, without
any act or consent on the part of the landlord.
Sasi Bhushan Raha v. Tara Lal Singh Deo
I. L. R. 22 Calc. 494

49. — Bengal Tenancy

Act ( VIII of 188-5), ss. 18 and 50— Presumption
— Occupancy raiyats — Raiyats holding at fixed
rent — Incidents of tenancy — Transferability of tenure
— Alienation of part of a tenure — Suit for khas
possession and for declaration that alienation ivas
invalid — Form of decree. In a suit brought in 1893
for a declaration that a holding was not transferable
and that the alienation of a portion thereof was in-
valid, and also for khas possession of the land on
the ground of such alienation, it was found that
the rate of rent payable for the holding had never
been changed since 1831, and that there was nothing
to rebut the presumption raised by s. 50 of the
Bengal Tenancy Act (VIII of 1885). Held, (i)
that the alienation did not work a forfeiture, and
the plaintiffs were not entitled to khas possession,

( 6417 )

DIGEST OF CASES.

( 6418 )

I.ANDLOBD AND TENANT— con/c/.

17. TRANSFER BY TENANT— cori<rf.

"but they were entitled to the declaration that the
alienation was not binding upon them ; (ii) that the
presumption created by s. 50 does not operate to
convert an occupancy raiyat into a raiyat holding at
fixed rates, nor does it render the tenancy subject to
the incidents of a holding at fixed rates as prescribed
by s. 18 of the Act. Bans: Das alias Raghu
Nath Das v. Jagdip Naraix Chowdhry

1. 1,. R. 24 Calc. 152

Dissented from in Dalhiri Golab Koer v. Balla
KuRMi . . , I. L. R. 25 Caic 744

50.

Mulgcni lease — ■

I Alienation hy mulgenidar — Alienation contrary to
\ the terms of the lease — Absence of any clause as to
re-entry — Suit by viulgar for possession. In the
' absence of any clause for re-entry in the event of
! alienation by the mulgenidar (permanent tenant),
contrary to the terms of the lease, the mulgar (land-
lord) cannot treat the alienation as void and recover
possession from the alienee. Narayan Dasappa v.
Ali Saiba . . . I. L. R. 18 Bom. 603

51, N.-W. P. Rent

Act (XII of ISSl), s. 9— Mortgage by occupancy-
i 4enant — Surrender of holding by heirs of mortgagor
— Suit on mortgage — Sale and purchase by mort-
gagee— Subsequent suit by zamindar for recovery of
occupancy-holding. A, an occuimncy-tenant to
' whom the second and third paragraphs of s. 9 of
! Act XII of 1881 applied, gave a simple mortgage of
- his occupancy holding to one S. During the con-
tinuance of the mortgage, A died and his sons sur-
rendered the occupancy-holding to the zamindar.
■S then brought a suit for sale on his mortgage, ob-
, tained a decree, had the mortgaged property sold,
I and purchased it himself. On suit by the zamindar.
\ who had not been made a party to any of the pre-
• viotis proceedings, against 8 for recovery of the
I' holding, it was held that iS' took nothing bj" his pur-
i chase under the decree obtained as above described
and that the zamindar was entitled to recover.
SuKRu V. Tafazztjl Husain Khan

I. L. R. 16 All. 398

I 52. Alienation contrary

io terms of lease — Absence of any clause as to
re-entry — Suit for ejectment — Forfeiture. A clause
in a lease whereby the lessee covenanted not to
alienate, unaccompanied by any clause for re-
entry upon breach of the covenant, held to be a
covenant merely and not a condition, and a suit for
ejectment brought by the lessor was dismissed.
J^arayan Dasappa v. Ali Saiba, I. L. E. 1.S Bom.
603, followed. MAdAR Saheb ?•. Sannahawa Gaj-
KANSHAH . . , I. Ij. R. 21 Bom. 195

53. Transfer by

ienant without consent of landlord — Original tenant
remaining in possession as sub-tennnt of the trans-
feree— Abandonment of tenure — Liability to ejectment.
Where the defendants had purchased the rights of
the original tenants of certain jote lands, \dthout
obtaining the consent of the landlord to the transfer

LANDLORD AND TENANT— co»<rf.

17. TRANSFER BY TENANT— con<<i.

of the tenures, and the original tenants had re-
mained in possession as sub-tenants of the trans-
ferees : Held, that the principle laid down in Kabil
Sardar v. Chunder Nath Nag Chowdhry, I. L. R.
20 Calc. 590, was not applicable, and that the land-
lord was entitled to a decree for ejectment against
the transferees. Kallinath Chakravarti v.
Upendra Chunder Chowdhry

I. L. R. 24 Calc. 212

54. Transfer by

tenant of land on which he has by permission of
zamindar built a house for his own occupation —
Rights of zamindars in land forming part ot the
abadi — Customary law of the North- Western Pro-
vinces. According to the general custom prevalent
in the North- Western Provinces, a person, agricul-
turist or agricultural tenant, who is allowed by a
zamindar to build a house for his occupation in the
abadi, obtains, if there is no special contract to
the contrary, a mere right to use that house for
himself and his family so long as he maintains the
house, that is, prevents it falling down, and so long
as he does not abandon the house by leaving the
village. As such occupier of a house in the abadi
occup^dng under the zamindar he has, unless he has
obtained by special grant from the zamindar an
interest which he can sell, no interest which he can
sell by private sale or which can be suld in execution
of a decree against him, except his interest in the
timber, roofing, and woodwork of the house.
Narain Prasad v. Dammar, All. Weekly Notes
(1SS8) 125, and CIuijju Singh v. Kanh'a, Weekly
Notes All. {1881) 114, referred to. GirdharUI
Maharaj v. Chote Lai. I. L. R. 20 AIL 248

55. Payment into

Court by tenant, and withdrawal of money by land-
lord— Effect of witMrawal as showing consent of
landlord to transfer. When a non-transferable
holding was advertised for sale in execution of a
decree for arrears of rent and the judgment-debtor
put in the mone}' due under the decree stating that
he had procured the money by selling his holding to
the defendant No. 1, and the landlord, the plaintiff,
took out the money out of Court : Held, that is
could not be inferred from the above circumstances
that the landlord had given hie consent to the
transfer, inasmuch as the plaiutiiT had a right to
draw the money out of Court without regard to
the manner in which or the source from which
the judgment-debtor had procured it. \\Tiere a
tenant transfers his non-transferable holding and
abandons possesssion of it, the landlord is entitled to
reject the transferee. Norendro Narayan Roy
Chowdhry v. Ishan Chmdra Sen, 13 B. L. R. 274,
followed. Kobil Sardar v. Chr.nder Nath Nag
Chowdhry, I. L. R. 20 Calc. 590, distinguished.
Wilson v. Radha Dulari Koek

2C. W. N.e3

56.

Bengal Tenancy Act — Bengil

Tenancy Act {VIII of 1885), s. 85— Sub-letting, re-
strictions on — Validity of sub-lease granted by raiyat

( 6419 )

DIGEST OF CASES.

( 6420 )

LANDLORD AND TENANT— contd.

17. TRANSFER BY TENANT— contd.

for more than nine years — Sub-lease registered before
the commencement of the Bengal Teyiancy Act.
Where a raiyat has, without the consent of his
landlord, granted a sub-lease, by an instrument
registered before the commencement of the Bengal
Tenancy Act, the sub-lease shall not be valid for
more than nine years from the commencement of
the Act, as against the landlord, but not as against
the raiyat. Gopal Mondal v. Esil\n Chtjnder
Banekjee (1901). . L L. E. 29 Calc. 148

57. Bengal Tenancy

Act, s. S5 {3). The word " the sub-lease shall not
be valid," in s. 85 (3), mean that the sub-lease
shall not be valid against the landlord. Madan
Chandra Kapali v. Jaki Kaeikar (1902)

6 C. W. ]Sr. 377

58. Bengal Tenancy

Act ( VIII of 1885), ss. 49, 85 (2)— Permanent lease
by an occupancy-raiyat — Registration — Indian Regis-
tration Act {III of 1877), s. 17 — Estoppel— Suit
for ejectment of U7ider-raiyat by purchaser of raiyafs
interest — Proof of lease — Meaning of " kaimi.'''
Where defendant No. 1, an occupancy-raiyat,
executed a permanent registered lease in favour of
defendant No. 2, who was put in possession, and
two years after, the right, title and interest of de-
fendant No. 1 being sold in execution of a decree
for money, the purchaser brought a suit to eject
the defendant No. 2 : Held, that the purchaser was
not estopped from questioning the validity of the
permanent lease created by his predecessor in title.
Also that the permanent lease, having been re-
gistered contrary to the provisions of s. 85 (2) of the
Bengal Tenancy Act, must be regarded as unregis-
tered, and so wholly void under the provisions of s.
17, Registration Act. Held, also, that, although the
written lease was void under law, inasmuch as the
defendant No. 2 had been let into the land in perfect
good faith and was also in possession as an under-
raiyat, he could not be regarded as a trespasser, but
must be taken to be an under-raiyat holding other-
wise than under a written lease. The tenancy thus
being a subsisting one, the defendant No. 2 could
not be evicted except after service of notice as
prescribed by s. 49 of the Bengal Tenancy Act.
Also that a tenant can prove his tenancy right
without proving his lease, if he has one which is in-
admissible for want of registration. Also that the
word " kaimi " does not import fixity of rent.
Fazel Sheikh v. Keramuddi Sheikh (1902)

6 C. W. N. 916

59. ■ Bengal Tenancy

Act ( VIII of 1885), ss. 49, 85— Permanent lease by a
raiyat — Right of suit by assignee of under-raiyat
against purchaser of raiyati interest. A raiyat
granted a permanent sub-lease, and an assignee
of the interest of the under-raiyat sub-let to the
plaintiff. Plaintiff was dispossessed by the pur-
chaser of the right, title and interest of the raiijat, at
a sale in execution of a decree, and brought a suit
to recover possession frona the latter. Held, that

LAinDLORD AND TENANT— conW.

17. TRANSFER BY TENANT— confc/.

the plaintiff could not succeed except on proof of
title ; and, the permanent lease being invalid under
s. 85, Bengal Tenancy Act, plaintiff had no title.
Held, also, that, not being a defendant resisting
a suit for eviction, plaintiff could not, on the
ground of mere prior possession, claim the protec-
tion afforded by the provisions of s. 49 (6) of
Bengal Tenancy Act to an xxndeT-raiyat with a
bond fide subsisting tenancy, whose permanent
lease is void and cannot be put in evidence.
Fazel Sheikh v. Keramuddi Sheikh, 6 C. W. N.
916, distinguished. Ramgati Mandtjl v. Shyama
Charan Dutt (1902) . . 6 C, W. N. 919

60. — Sale of house by

tenant — Haq-i-chaharum by ivhom payable. In the
case of a customary right to receive haq-i-chaha-
?-M??t, where it does not appear that the zajiiindar's
right to a share of the purchase-money is hmited to
a right to claim it from the vendor, the right can be
enforced against the vendee also. Heera Ram v.
the Hon'ble Sir Raja Deo Narain Singh, N.-W. P.
H. C. Rep. (1867) F.B. 63, referred to. Dhandai
BiBi V. Abdtjr Rahman (1901)

I. L. R. 23 All. 209

61. . Sale of jote—

Surplus sale proceeds, claim of, by purchaser —
Trcmsfer ability, question of. A certain jote was
sold for arrears of rent obtained against the recorded
tenant, and the purchaser of a portion of the jote
from the latter claimed the surplus sale-proceeds
representing the portion purchased by him ; the
defendant objected to the same on the ground that
he was the purchaser of the jote ; the Lower Courts
held that defendant could not prove his purchase ;
the landlord was not a party. Held, that the ques-
tion of the transferability of the jote did not arise.
Ambica Nath Acharjee v. Aditya Nath IMoitea
(1902) . . . . 6 C. W. N. 624

62. Fraudulent de-
cree — Claim of rent at a higher rate — Custom and
usage — Transfer of occupancy holding — Bengal Te-
nancy Act {VIII of 1885), s. 183. Where a land-
lord obtained a decree against his tenant at a higher
than the proper rate of rent and the landlord ex-
plained that it was owing to a mistake of the pat-
u-ari : Held, that this was not sufficient to con-
stitute fraud. The essence of a usage of trans-
ferability is that transfers made to the know-
ledge of, but without the consent of, the landlord are
valid and must be recognised by him. Where the
usage of transferability of occpancy holdings was
found to have been growing up in other ])arties than
that of the plaintiff landlord : Held, that the
plaintiff could retard the growth of the usage in his
patti, which was a separate estate by refusing to ac-
kno-n ledge the vahdity of transfers in that patti,
Jagttn Proshad v. Posun Sahoo (1904)

8 C. W. N. 172
Landlord and

tenant — Sale of occupancy holding upon payment of
nazar — Landlord's consent — Usage — Custom — Pay-

( 6421 )

DIGEST OF CASES.

( 6422 )

LANDLOBD AND TENANT— co»fd.

17, TRANSFER BY TENANT— conid. i

merit of rent tnarfatwaree — Bengal Tenancy Act j
( VIII of ISSh), s. 1^3. Where the facts found were
that in a certain locality upon transfer of a non-
transferable holding the landlord does not recognise j
the transferee as tenant, but all the same he receives \
rent from the transferee granting a receipt in which
the original holder's name is entered as tenant
and in which the transferee's name is entered as a i
person through whom the payment is made, and
when the transferee does not personally pay the
rent, but sends it by an agent, the name of this
agent is also entered as the person by whose hand
the payment is made, and till the transferee pays
the nazar the original holder remains recorded in

, the landlord's books as tenant. Held, that upon
these facts it might be found that a raiyat is en-

' titled to sell his holding without reference to the
landlord provided only that the purchaser pays ;
to the landlord a custom.ary fee. That the finding j
that tenants do transfer their rights of occupancy
without the landlord's consent does not in itself j
establish a usage in this respect so as to affect the

j right of the landlord to accept or refuse to consent
to such transfer. That the finding that payment
of a nazar was requisite to validate such transfer
would imply that the landlord's consent was neces- I
sary. That the nazar not having been paid by the [
transferee in the present case, the landlord was en- i

' titled to a decree for ejectment. Radha Kishoke
Makikya v. Seeemutty Ananda Peia (1904) I

8C. W. N. 235 !

64. Bights of land-
holder in the ahadi — Transfer of house site by tenant.
Apart from any custom recorded in the wajib-
ul-arz forbidding a tenant to transfer the site of a
house occupied by him in the ahadi, a tenant has
not in the absence of a special custom or contract
I giving him such a right, any right to transfer the
I site of his house in the ahadi. Bhajan Lal v.
I Aedus Samad Khan (1905) . I. L. R. 27 All. 55

65. ^ Customary laic —

Eights in respect of huilding sites in the ahadi —
Wajih-ul-arz — Unauthorised huilding — Acquiescence.
i The plaintiff, who was the receiver of the estate
j of a minor, situate in the district of Bulandshahr,
resided at Calcutta, the property in Bulandshahr
being managed through a karinda, M'hose authority
was strictly limited by a power-of-attorney. In
1894, two tenants of the village Sankhni, in which
the minor was a co-sharer, sold their house in the
ahadi by means of a registered sale-deed. The
vendee was put into possession, and proceeded,
between 1894 and 1896, to spend a considerable
sum of money in building a " pucca " house on
the site of the house so purchased. It did not ap-
pear that he made any inquiries from the karinda
of the plaintiff as to his rights or asked for any
permission to build the house. On the other
hand the karinda took no steps to interfere with the
building. The wajib-ul-arz of the penultimate
settlement of the village contained these provi-
sions : — " Without our consent no body can settle

LANDLORD AND TENANT— con/cZ.

17, TRANSFER BY TENANT— con^rf.

in any place possessed by use (i. e., the zamindars), "
and again: — " A raiyat occupj'ing an j' house cannot
be turned out of it by anybody so long as he lives in
it, but he is not emjsowered to alienate the site. He
can remove and sell the materials of the building
constructed by him." In January 1902 the plain-
tiff brought the present suit asking that the princi-
pal defendant (the purchaser) might be ordered to
remove the materials of the house erected by him
within a time to be fixed by the Court, failing which
they might be declared to be the property of the
plaintiff. Held, by Aikman, J., that the conduct of
the plaintiff's karinda under the circumstances
amounted to an acquiescence in the acts of the
principal defendant and was binding on his princi-
pal, the plaintiff. Ramsden v. Dyson, L. B. I. E.
and /. A. 129, and Sri Girdhariji Maharaj v. Chote
Lal, I. L. B. 20 All. 248, referred to. Per Knox
Acting C.J., {contra} — The principal defendants,
vendors, had no right to sell anything more than tho
materials of their house : no title to the site passed
to the purchasers, and under the circumstances the
inaction of a karinda, whose authority was limited,
could not be taken to bind the plaintiff. Chajju
Singh v. Kanhia, AIL Weekly Notes (ISSl) 114,
Sri Girdhariji Maharaj v. Chote Lal, I. L. B. 20
All. 248, and Bamsden v. Dyson, L. B. I. E. and
I. A. 129, referred to. Raj Naeaix Mittee v.
BuDH Sen (1905) . . L L. R. 27 All. 338

66. Transfer of non-
transferable holding — Sub-lease hy transferee. Where
defendants Nos. 2 and 3, who had a non-transfer-
able occupancy holding sold it to defendant No. 1
and took an under-lease of the same from the
latter. Held, that the landlord was entitled to get
a decree for possession against defendant No. 1 and
was not entitled to get khas possession again.st
defendants Nos. 2 and 3, but only to receive rent
from them. Dina Nath Roy v. Keishna Bejoy
Saha (1905) . . . 9 C. W. N. 379

67. Transfer by a

tenant uithout consent of the landlord — Non-transfer-
able right — rigf't of occupancy — Abandonment. Whtr©
a person having an on-transfei able right of occu-
pancy, transferred such right to a third party, and
obtaining a sub-lease from the purchaser remained
in possession of the land, but repudiated his rela-
tion as tenant to the landlord , and sought to re-
occupy the land not as his (landlord's) tenant, but
as the under-tenant of a person who was not a
tenant and had no legal connection with the land : —
Held, that such a person is not entitled to hold the
land' as asainst the landlord. Madar Mondal v.
Mah'ima Chandra Mazumdar. I. L. B. 33 Calc. 531,
distinguished. RaJani Kanto Btswas r.
Ekkowei.Das (1907) . I. L. R. 34 Calc. 68&

68, Transfer — Ben-
gal Tenancy Act (VIII of ISSo), ss. 17, 88, 161—
Permanent raiyati holding — Sale of portion of holding
— Landlord aware of sale, thcntgh tramferee not
recorded in his sheriita — Sub-division of holding—

( 6423 )

DIGEST OF CASES.

( 6424 )

LANDLORD AND TENANT— cow^fi.

17. TRANSFER BY TENANT— co7i«(i.

Decree against recorded tenant, effect of — Purchase of
part of tenure if an incumbrance. \Vhen raiyats,
having permanent interest in a holding sold a por-
tion of it and the transferees again sold a portion of
iheir purchased interest to one 72, and R obtained
settlement from the landlord : — Held, that, although
the transferees took no steps to get their names
registered in the landlord's sherista and had paid
no rent since their purchase, inasmuch as the land-
lord had notice of the purchase under s. 17, Bengal
Tenancy Act, he was bound to bring a suit against
the transferrers and the transferees jointly. A sale
of the holding in execution of a decree for rent
obtained against the transferrers only did not
therefore affect the transferees' interest in the
holding. The landlord was bound to recognise
the transfer though in the absence of his written
consent as required by s. 88 of the Bengal Tenancy
Act, he was not bound to recognise the sub-division
effected by the transfer. The interest of the
transferees was not an incumbrance which coull be
avoided by a purchaser at a rent sale. Baistab
€haran Chowdhury v. Akhil Chandra Chow-
DHTTRY (1906) . . .new. N. 217

Landlord

tenant — Occupancy holding — Transferability, local
usage of — Evidence to prove — Transferee allowed to
hold and pay rent as Marfaldar — Mutation of name
on payment of salami. ^Vhere it was proved by
evidence that for 15 or 16 years before suit, occu-
pancy holdings had been transferred in the Per-
gunnah as also in the village, and the landlords had
allowed the transferees to hold possession and pay
rent as marfatiars and granted them receipts as
such, but would not substitute their names in the
sheristha, unless some payment was made by way of
salami or nazar : — Held, that the evidence was
insuflficient to establish a custom or local usage of
transferability of occupancy holdings. Kurani
Dassi v. Sajoni Kant Singh (1908)

12 C. W. N. 589
70. Occupancy-hold-
ing non-transfer able — Purchase by landlord in execu-
tion of money-decree ivhether subject to previous
mortgage — Estoppel — Evidence Act (/ of 1872), s.115.
Where in execution of a money-decree the landlords
of a non-transferable occupancy-holding purchased
the holding after it had been mortgaged bv the
tenants m favour of a third party : — Held, that, in a
suit by the latter to enforce the mortgage, the land-
lords were not estopped from setting up the defence
that the holding was not transferable without their
consent. That the sale of the holding by the land-
lords did not amount to a representation that it
was transferable without their consent, but only
that it was transferable with their consent. That
the landlords did not merely purchase the equity
of redemption, the English law of mortgage not
being applicable to the case. The law of estoppel
in force in this country is contained in s. 115 of the
Evidence Act. Ayenuddin Nasija v. Sirish Chandra

LANDLORD AND TENANT— confd.

17. TRANSFER BY TENANT— consZci. ~
Banerjee, 11 C. W.N. 76, distinguished. Asmttttjn-

NESSA KHATTJNSaHEBA W HAREVfDRA LaL BiswaS

(1908) . . . L L. R. 35 Calc. 904
s.e. 12 C. W. N. 72

18. ACCRETION TO TENURE.

Right to increment to ten-

ure. The la^y gives an increment to a tenant or
under-tenant in possession, without reference to
the nature of his title. Narain Doss Bepary v.
SooBUL Bepary . . . 1 W. R. 113

7'ennnt-at-will .

A tenant-at-will is entitled to occupy an accretion
to his holding so long as he retains possession of his
original holding- Bhtjgabtjt Prasad Singh v.
DuRG Bijai Sing . . . 8 B. L. R. 73
16 W. R. 95

(Contra) Finlay, Muir & Co. v. Oopee Krtsto
GossAMEE .... 24 W. R. 404

3. Right to pottah from the

zamindar for accreted lands— Jo/e paying'
rent to Government. In case of an accretion to land
by alluvion, the raiyat is not entitled to a pottah
from the zamindar in respect of the accretion, if it is
an accretion to a jote the rent of which is payable
to Covernment. Campbell v. Kishen Dhitn
Attdhicaree . . Marsh. 67 : 1 Hay 233

Kishen Dhttn Audhiparee v. Campbell

W. R. P. B. 22 : 1 Ind. Jur. O. S.i79

4. . Terms of holding accreted

lands— 5ew(7. Reg. XI of 1825— Assessment of
accreted lands. Lands accreting to a tenure are,
under Regulation XI of 1825, to be held under the
rates and on the conditions imposed upon the
original tenure itself. Mahomed Wassil v. Zule-
kha Khatoon .... 2 Hay 515

5. . Beng. Reg. XI of

1825, s. 4, cl. 1. Held, that, under s. 4, cl. 1,
Regulation XI of 1825, tenants have a right to the
land accreted to their holding; end if the tenant
has acquired a right of occupancy in his original
holding, he would enjoy a similar right in the
alluvial land, although he may not establish that he
has held such alluvial land for twelve years. Oodit
Rai v. Ramgobind Singh. 2 Agra," Pt. II, 206

6. ■ Land accreted to

muafi tenure — Beng. Reg. XI of 1825, s. 4, cl. 1.
Where alluvial land has been formed in front of and
contiguous to an old muafi which had been resumed
and settled with the muafidars i—Held, that, in
the absence of any custom to the contrary, the
first clause of s. 4, 'Regulation XI of 182.5, applies,
and the portion so thrown up in front of the muafi
becomes an increment to the holding of cx-muafi-
dars. Fuzl-ood-deen v. Imteeaz-oon-Nissa

3 Agra 152

7. • — Where lands be-
come annexed to a jote by gradual accretion

( 6425 )

DIGEST OF CASES.

( 6426 )

LANDLOBD AND TENANT— conid.

;-. 18. ACCRETION TO TENURE— contd.

within the meaning of s. 4, Regulation XI of 1825,
the jotedai- is enitled to hola them on the same
principle and under the same legal conditions as he
holds the parent estate. Gobind MoNEE Debia v.
DiNO BuNDHoo Shaha . . 15 W. E. 87

Benq. Reg. XI of

1825, s. 4, d. 1. CI. 1, s. 4, Regulation XI of
1825, refers only to under-tenants intermediate be-
tween the zamindar and the raiyat, and to khood-
kasht or other raiyats who possess some permanent
interest in their lands, and not to tenants from year
to year. ZrHEEROODEEN Paikar v. Campbell.
4 W. K. 67

9. ■ ■ . Beng. Reg. XI of

1825, 8. 4, cl. 1. CI. 1, s. 4, Regulation XI of 1825,
prescribes that the right to the occuj)ancy of ac-
creted land is with the owner of the parent mehal
or subordinate tenure, as the case may be. But so
far from saying that it is revenue or rent-free, or
that the original revenue or rent assessment covers
the demand both for the original estate or original
subordinate tenure and for the accreted land, the
very reverse is contemplated by the section, which
provides for payment of revenue or rent, if payable
under law or usage. Accreted lands, A\lien liable
to enhancement at the ordinary neighbouring rates,
are entitled to a deduction of 10 per cent, for collec-
tion charges, and 10 per cent, for talukhdari profits.
JuGGUT Chtttsder Dutt V. Panioty

6 W. R., Act X, 48

10. Accretion to zimma ten-
ure—^eng-. Reg. XI of 1825. CI. 1, s. 4, Regula-
tion XI of 1825, and s. 22, Act X of 1859, will not
allow a suit for the assessment of lands accreted to
a zimma teniu-e ; and holders hke the zimmadar, in
a case of this nature, are not Uable under s 15,
Act X of 1859, for additional rent for chui- land,
until they are sho\^'n by the zamindar to be holders
of tenures subsequent to the Decennial Settlement
not having a fixed jama, and then only liable for the
talukhdari rates paid by others of the same class for
similar lands. Panoity v. Juggut Chunder Dutt

9 W. R. 379

11. — _ Accretion to holding of

mirasi jotedar — Right of uccvpaney. A mirasi
jotedar \\ith a right of occupancy has a right to
lands which accrete to his jote, and the zamindar
carmot take them a\\'ay and settle them with, other
parties. Attiimoollah v. Saheboollah

15 W. B. 149

TjANLORD and TENANT^;on<rf.
18. ACCRETION TO TENURE— con<(/.

not followed. Gourhari Kaiburto v. Bhola.
Kaiburto . . I. L. R. 21 Calc. 233-

13. Rent of accreted land —

Beng. Reg. XI of 1825, s. 4, cl. l—Lmhility to in-
creased rent. When the area of land held by a
tenant under a permanent tenure has been increased
by accretion, the tenant becomes subject to pay an
increased rent on account of the land gained bv
accretion, on the conditions laid down in Regulation
Xlof 1825, s. 4, cl. 1. Ramxidhee Maxjiev. Par-
butty Dassee . . I. Ii. R. 5 Calc. 823

S. 0. ShOROSSOTI DoSSEE v. PaRBLTTI DOS.SEE

6 C. Ii. R. 362

BrOJENDRA CoOMAR BhOOMICK v. ^\■00PEXDRA

Narain Sixgh . . I. Ii. R. 8 Calc. 706
^ee Bakraxath Maxdal v. Bixode Ram Seix
1 B. L. R. F. B. 25 : 10 W. R. F. B. 33

HURROSOOXDEEEE DoSSEE V. GOPI SoOXDEREE

Dossee . . 10 C. L. R. 559

14. Lands formed by the dry-
ing up of a beel or marsh— Tre,spr<*>Yr —
EncroacJmient. Although where a tenant encroaches
upon any land of his landlord outside of his tenure,,
it is open to the landlord to treat him as tenant and
not as a tresijasser and the tenant has no right to
compel the landlord to treat him as a tenant, yet it
does not follow that because the landlord has this
option he can treat the tenant as trespasser at any
time after having exercised his option in treating
him as a tenant for some time. The principal
defendants held a holding under the plaintiffs and
their co-sharers ; subsequent to the creation of the
original holding defendants took possession of certain,
lands by gradual encroachment ; plaintiffs brought
a suit for recovery of their share of the encroached
lands or for assessment of rent and made their co-
sharers parties. Held, that the plaintiff not having
treated the defendants as trespassers from the
beginning the defendants must be treated as tenants
of those lands apart from their tenancy in resfject of
their holding. Khoxdakar- Abdul Hamid r.
MoHixi Kaxt ^^Rx . 4 C. W. N. 508

12.

Jote tenure — Beng. Beg. XI

of 1825, s. 14, cl. {!)— Occupancy right — Raiyat.
A raiyat who has a right of occupancy is entitled
to the benefit of s. 4,''cl. (1), of Regulation XI of
1825. Gobind Monee Delia v. Dinohundhoo Shaha,
15 W. R. 87 ; AttimoolJah v. Saheboollah, 15 W. R.
149; and Bhaaahat Prasad Sing v. Durg Bijai
Singh, 8 B. L. R''.73 : 16 W. R. 95, follo^^■ed._ Finlay
Muir <L- Co. V. Gopee Krisio Gossamee, 24 II'. R. 404,

15.

-Accretion to parent estate.

assessment of rent in respect of— Reg. XI
of 1845, s. 2, cl. {1)—Act XI of 1S55, s. 1—Reg.
VII of 1822— Act IX of 1847— Act XXXI of
285S— Bengal Tenancy Act {VIII of 1885), s. 52.
In a suit brought by the taluldidar of a certain
mouzah against'the dar-talukhdar for a declaration
that he was entitled to get rent at a certain rate
annually, also for airears of rent at that rate,
and in the alternative for compensation for use and
occupation of the disputed land which was an accre-
tion to the said mouzah, and in respect of which a
settlement was made with him by Government
treating it as a separate estate, the defence {inter
alia) was that the suit was not maintainable unless
a rental was assessed in the first instance, and that
that no arrears of rent could be claimed, as there
was no relationship of landlord and tenant between

( 6427 )

DIGEST OF CASES.

( 6428 )

liANDLOED AND TENANT— con^d.

18. ACCRETION TO TENURE— co»(d.

the parties. Held, that, the landlord could not
treat it as a separate tenure altogether ; that the
increment was to be regarded as part of the parent
estate, and treating it as part and parcel of the
parent estate he was entitled to get assessment of
rent on the disputed land ; but he was not entitled
in the suit to back rent or compensation for
use and occupation. Assanullah Bahadur v.
MoHiNi Mohax Das . I. L. R. 26 Cale. 739

16. Lessee under Government

— Right of lessee to accretions to his tenure. The
lessee of a mouzah ordinarily being in the posi-
tion of zamindars, a lessee holding lands from
Government, in the absence of any stipulation in his
lease to the contrary, is entitled to the benefit of all
accretions formed upon such lands during the term
of his holding and may sue the occupants for a fair
and equitable rent. Mtitura Kant Saha r. Mea-
jan Mundul . . 5 C. Ii. R. 192

17.

Submergence of oeeu-

18.

Land in excess of tenure —

— Accretions to parent tenure — Rate of rent-
R^g. XI of 1825, s. 4, cl. 1. In a suit for arrears of
rent, it appeared that the defendant had, in 1260
(1853), executed a kabuliat, in which the boundaries
of the land were given and the rate of rent fixed
and which provided that the land might be measured
after 1261 (1854). In 1281 (1874), a measurement
was made, and it M-as found that some land had
accreted ; and the plaintiff now sued for rent for the
accreted land, at rates varying with its nature and
quality. Held, that the accretea land should be
governed by the terms and conditions appUcable to
the parent tenure, and that the same rent was pay-
able for it as for the land included in the kabuliat.
The meaning of Regulation XI of 1825, s. 4, cl. 1, is
that the incidents of the original tenure attach to

LANDLORD AND TENANT-^;onJi.
18. ACCRETION TO TENURE— coniti.

pancy tenant' s land — Diluvion — Liability for
rent — Resiimption hy landholder — Custom — Act XII
of ISSl {N.-W. P. Rent Act), ss. IS, 31, 34 (b),
95 (n). A landholder, — alleging that by local
custom when land was submerged, and the tenant
ceased to pay rent for the same, his right to it abated
and when the land re-appeared the landholder was
entitled to possession thereof ; that certain land
belonging to him had been submerged and the occu-
pancy-tenant thereof had ceased to pay rent for it ;
and that such land had re-appeared and had come
into his possession under such custom, — sued tenant
in the Civil Coiu-t for a declaration of his right to
the possession of it. Held, that, inasmuch as ss. 18
and 31 of the N.-W. R Rent Act, 1881, showed that
notwithstanding the submergence of the land the
tenanc}^ still subsisted, and as the tenant could not
lose his right to the land except by relinquishment or
ejectment under the provisions of that Act, and as
the custom set up by the landholder was opposed to
the provisions of s. 34 (b) of that Act, the suit was
not maintainable. Kupil Rai v. Radha Prosad
Singh . . . . I. L. R. 5 All. 260

Kali Krishna
8 C. L. R. 517

Suit for in

the increment. Golam Ali t
Thakur I. L. R. 7 Cal. 479

19.

creased rent for lands found in excess on measure-
ment. In a suit to recover a kabuliat at enhanced
rates for excess lands, where defendant filed a pottah
on which were endorsed the numbers of certain daghs
of a measurement made by the zamindar, and com-
posing a mokurari tenure, and also pleaded that part
of the excess land was lakhiraj, it was held, in regard
to the land claimed as lakhiraj, that plaintiff's
remedy lay in a suit for resumption and assessment,
and with regard to the land covered by the pottah,
that defendant was entitled to hold the whole of
the lands comprised ^^'ithin the daghs, not\^dthstand-
ing that a recent measurement showed a greater
extent of area than had been formally ascertained.

MODEE HUDDIN JOWADAR V. S ANDES

12 W. R. 439

Rashum Beebee v. Bissonath Sircar

6 W. R., Act X, 57

David v. Ram Dhun Chatterjeb

6 W. R., Act X, 97

Rajmohttn Mitter v. Gooroo Churn Aych

6 W., R. Act X, 106

20. . _ Land held in

excess of tenure — Mirasi istemrari pottah — Right to
enhance rent. Where a mirasi istemrari pottah had
been granted by a patnidar whose patni had been
created while the mehal was under temporary settle-
ment and who had to pay a higher rent to the
zamindar when the latter obtained a permanent
settlement from Government at a higher jama, it
was held that the fact of the patnidar having to pay
a higher rent to the superior holder did not, under
the circumstances, warrant his rising his lessee's
rent. Where a patnidar sued for enhancement of
rent on the foregoing ground, he was held not to be
entitled to a decree for enhancement of excess land
in defendant's possession, or to treat him as a tres-
passer in respect of such excess. Binode Behakee
Roy v. Masseyk . . . 15 "W. R. 494

21.

Rate of rent

assessable for. In respect to excess area it was
held (Phear, J.) that plaintiff was entitled to a fair
and equitable rate ; (Bayley, J.) that excess land
should, as a part of the same lease, be liable to the
same terms as the other land originallj^ given under
it. GoLAM Ali v. Gopal Lalx, Tagore

9 W. R. 65
22. Suit for rent—

Encrouchment. A, the holder of an independent
i istemrari tenure lying in B's zamindari let it to C,
[ who, under cover of his lease, encroached upon the
I zamindari lands. Held, that there was no implied

contract of tenancy between G and B and B could
I not sue G for rents on account of the excess lands.

I JiYNARAYAN SiNGH V. MaTILAL JhA

I 1 B. L. R. A. C. 21

6429 )

DIGEST OF CASES.

( 6430 )

IjANDIjORD and T'E'N ant— co7itd.
18. ACCRETION TO TENURE— co«W.

Encroaehment by tenant

— Encroachment by tenant, fres^imjdion uf English
law as to. The presumption of English law as
to encroachments made by a tenant during his
tenancy upon the adjoining lands of his land-
lord is that the lands so encroached upon are
added to the tenure and form part thereof for
the benefit of the tenant, so long as the original
■holding continu^^s, and afterwards for the benefit
of the landlord, unless it clearly appeared by
some act done at the time that the tenant made
the encroachment for his own benefit. Where lands
encroached upon have been added to the tenure, the
tenant, if liis tenancy is permanent, or he has a
right of occupancy, cannot be ejected from them
while the tenure lasts ; but when rent is re-adjusted,
these lands may be brought into the calculation.
GooEoo Doss Roy v. Issub Chunder Bose

22 W. R. 246

24.

Fazcndari ten-

ure— Encroachment of tenant added to the tenure.
An encroachment made by a tenant on the pro-
perty of his landlord — e.q., by a person holding
under fazendari tenure — should not be presumed to
have bcecf made absolutely for his o^vn benefit and
against his landlord, but should be deemed to be
added to the tenure, and to form part thereof.
Gooroo Doss Roy v. Issur Chunder Bose, 22 W. R.
246, followed. Esuba.i v. Damodar Ishvardas
I. L. E. 16 Bom. 552

Enrcoachment by

a tenant — E^ect of such encroachment — Position
t)f such tenant — Trespasser. "When a tenant en-
croaches upon the land of his landlord, he does not
b}' such encroachment become the tenant in respect
of the land encroached upon against the v,i\\ of the
landlord. Prohlad Teor v. Kedarnath Bose
I. L. R. 25 Calc. 302

26. Landlord's right

— Encroachment acquiesced in by landlord. If
a tenant diu-ing his tenancy encroaches ujDon the
land of a third person, and holds it \^'ith his own
tenure until the expiration of the tenancy, he is
considered to have made the encroachment not for
his own benefit, but for that of his landlord ; and if
he has acquired a title against the third person by
adverse possession, he has acquired it for his land-
lord, and not for himself. Nuddyarchakd Saha
V. Meajak . . I. li. R. 10 Calc. 820

27. Tenant bringing jungle

land into cultivation — As.-^c'^^mcnt of rent
— Improvements by tenant. A raiyat who brings
jungle land into cultivation is liable, after a reason-
able period, to pay the full pergunnah rates of culti-
vated land. A raij^at who does more than bring
uncultivated land into cultivated, — i.e., converts,
by means of special Morks and special labour, un-
culturable into culturable land, — is entitled to hold
at exceptionally low rates. Chowdhrv Khan r.
<31ouR Jana . . , 2 W. R., Act X, 40

LANDLORD AND TENANT— conW.

18. ACCRETION TO TENURE— co«c?d.

28. Chur land — Bengal Tenancy

Act {VIII of 18S5), ss. 20, cl. (7), awl ISO— Onus
of proof — Presumption of holding chur land con-
tinuously for twelve years — Reg. XI of 1S25, s. i — .
Raiyat having no pre-existing right to the kuid—
Right to accretion. Held, that the presumption,
which is created by s. 20, cl. (7), of the "Bengal
Tenancy Act, in respect of that section could not be
applied to s. 130 of that Act. In dear ah or chur land
the person, who alleged that he had been for twelve
continuous years in possession, would have to prove
that allegation. Held, further, that s. 4 of Reg. XI
of 1825 could not apply, there being no pre-existing,
right to the land in the tenants, to which an}- right
to the later accretion can be said to be annexed.
Bexi Persad Koeri v. Chaturi Tewary (1906)

I. L. R. 33 Calc. 444

19. RIGHT TO CROPS.

Right to crops on death of

occupancy raiyat — Legal representative''. Right
of, against zatnindar. A zamindar cannot lay claim
to the crops on the ground at the raiyat' s death,
even supposing that the occupancy right lapsed in
his favour, as it forms a part of the propert}- belong-
ing to the deceased, and passes to his legal represent-
atives. DooBGA Pershad V. DoocHUR Pershad
3 Agra 188

2. Right to crops when stored

— Bhag-jute tenure. When lands are held under
a bhag-jote tenm'e and the tenants are bound
by agreement to cut and store the crops on their
landlord's chuck, where it is afterwards to be di-
vided, the dominion over the crops till division is in
the landlord. Horro Naraix v. Shoodha Kristo
Berah I. L. R. 4 Calc. 890 : 4 C. L. R. 32

Standing crops Effect of

order of ejectment under Bengal Rent Act, IS69.
The effect of an order of ejectment under the Bengal
Rent Act is to dispossess the raiyat not only of the
land, but also of the crop standing thci eon. In the
matter of DuRJAN Mahtox t>. Wajid Hossein

I. L. R. 5 Calc. 135
No charge for se-

cond crop on dry land allowable without proof of its
propriety by the landlord — Custom — Isolated tra7i«-
actions extending over a few years not ■••ufJici'Mt proof
of custom. An additional charge for a second crop
grouTi on dry land without the aid of water supplied
by the landlord is unusual, and it lies on the land-
lord seeking to impose it, to establish its propriety.
A customary ric'it to impost such a chnrge is not
proved when all the evidence in support of such
custom is the testimony of a single witness, who
says he paid it and accounts extending back to
25 years, which show that demands for the addi-
tional charges were made on certain tenants, but
which do not show that they were ever paid.
KuMARU Reddi v. Naoayasa>u Thambichi
Naickeb (1907 . I. L. R 31 Mad. 17

( 6431 )

DIGEST OF CASES.

( 6432 )

LANDLORD ANH TENANT— co»<i.

20. PROPERTY IN TREES AND WOOD ON
LAND.

Right to trees for timber—

— Eight to cut down trees. A zamindar has a right
in the trees grown on the land by the tenant, and
although the tenant has a right to enjoy all the
benefits of the growing timber during his occupancy,
he has no power to cut the trees dowTi and convert
the timber to his own use. The zamindar may sue
to have his title in the growing trees declared.
Abdool Rohomax v. Dataram Bashee

W. R. 1864, 367

2. Right to trees planted by

raiyat — Death of raiyat. HeM, that the plaintiffs,
the o\\'ners of the lands on which trees stand, are, in
default of heii's, entitled to proprietary possession of
trees as ' ' lawarisee ' ' which had been planted by
the deceased raiyat. Bhairow Deen v. Mookta
Ram 1 Agra 13

3. Right to trees already

planted — Lea.se i7i perpetuity. Where a lease is
granted in perpetuity at a fixed rent and the lessor
reserves no reversionary interest in the land or in
the trees growing on it, the lessees are entitled to the
ownership of the trees. S haboiTa S oondabi Debia
V. GoisEE Sheik . . . 10 W. R. 419

4. Assessment in respect of

trees — Profits realized by erection of huts for
pilgrims. A landlord is entitled to assessment in
respect of trees as being the produce of the soil, but
not in respect of profits realized by the use of stalls
or huts erected by the tenant for the use of pilgi-ims
frequenting a fair annually held on the land in
honoiu: of an idol which the defendant has there.
Kewajah Chyemtjn Kajah v. Jan Ally Chow-

DHKY 1 W. R. 46

5. Evidence of property in

trees — Froof of acts of ownership. A person's
title or property in a tree may be proved by sho-\^-ing
that the tree grows on his land, without proof of
any act of ownership over the tree. Chutoor
Bhooj Tewaree v. Viixaet Ali Khan

W. R. 1864, 223

6. Trees planted by lessee —

— liiyht to groiving trees under grant of homestead
or vaste land. A peshcushi sanad, or grant at a
quit rent of homestead and waste land, ' being
construed to assign a heritable right in a tract of
land capable of yielding fruits by virtue of wliich
the holder, during the continuance of his right,
possessed absolutely the entire use and friiits thereof :
— Held, that the lessor or grantor had no more right
to the trees planted by the lessee than he had
to the crops sown by him. Goltjck Rana v.
NUBO SOONDTJREE DOSSEE , 21 "W. R. 344

7. Presumption as to owner-
ship of trees — S2iit for possessio7i of tree — Pre-
sumption in favour of lessee. In a suit to recover
possession of a tree and of its produce, where defend-
ant was admitted to be plaintiff's tenant as to the
land on which the tree stood : — Held, that the tree

LANDLORD AND TENANT-^onW.

20. PROPERTY IN TREES AND WOOD ON
LAND — contd.

was rightly presumed to be included in the lease,
and that it was for the plaintiff to establish that he
was entitled to remain in possession of the tree not-
^\^thstanding the lease. Held, that the fact of a
part of defendant's allegation — viz., that the tree
had been planted by his ancestor — having proved
untrue, did not entitle plaintiff to a decree. Maho-
med Ali v. Bolakee Bhuggut . 24 W. R. 330

Trees — Land-

hoMer's and. tenant's rights as to trees on tenant's
holding. Held, that as a general rule the property
in timber growing on a tenant's holding vests in the
zamindar, and the tenant has no right to cut and
remove such timber. But as a general rule also the
zamindar has no right to interfere with the enjoy-
ment by his tenant of the trees upon his holdin"- so
long as the relation of landlord and tenant subsists.
Sheikh Abdool Rohoman v. Dataram Bashee, W. R.
{1864)367, referred to. Ganga Dei v. Bad^m
(I'JOS) . . . . L L. R. 30 All. 134

Right of tenant to remove!

trees — Determination of tenancy — Purchaser of\
rights of tenant after expiry of tenure. Held, that|
trees accede to the soil and pass to the landholder
with the land on the termination of a tenancy, and
unless the tenant uses, during the term of his tenancy
his privilege, where he has it, of removing the trees,
he cannot do so afterwards ; he would then be
deemed a trespasser. Held, also, that, where
tenant has been ejected in the execution of the decre
of a Revenue Court for arrears of rent from the land'
forming his holding, his tenancy then terminates,
and with it all right in the trees standing on such
land or power of deahng with them. A person,
therefore, who purchases the rights and interests of
a tenant after his ejectment in the execution of such
a decree, cannot maintain a suit for the possession
of the trees standing on the tenant's holding. Ram
Baran Ram v. Salig Ram Singh

I. L. R. 2 All. 896

10.

Property in timbeT— Right

to trees on land — Transfer of trees by tenant.
The presumption of law and the general rule is
that property in timber on a tenant's holding
rests in the landlord in the same way as, and to no
less an extent than, the property in the soil itself
Soonar v. Khuderun, 2 N. W. 261 ; Ajudhic
Nath V. Sital, I. L. R. 3 All. 567 ; Abdool Rohomai
V. Dataram Bashee, W. R. 1S64, p. 367; Ruttonj
Edulji Shet v. Collector of Thanna, 11 Moo
I. A. 295 : 10 W. R. P. C. 13, referred to. Held
therefore, where an occui^ancy-tenant transferre(
his holding, that the transfer was not only iuvaU(
in respect of the holding, but in respect also of th'
trees on the holding. Kasim Mian v. Band.
HusAiN . . . . I. L. R. 5 All. 61(

11. Lease of produce of tree

— Effect of lease to jjass property in trees. A leas
which gave a right to the produce of trees held nc

( 6433 )

DIGEST OF CASES.

( 6434 )

I.ANDLORD AND TENANT— conid.

20 PROPERTY IN TREES AND WOOD ON

LAND— contd.
to pass any property in the trees. Mahomed Ali v.
Deo Narain Singh . . 1 W. K. 352

12. . Property in trees passing

"with the land. Trees so long as they are not
severed or cut are prima facie to be taken as passing
with the land on which they grow, and a sale of a
house and compound would comprise the trees
thereon unless it could be shown that they were
specially excepted. Soonab v. Khuderttn

2 N. W. 251

13.

Sale of trees in execution

14.

Right of occupier of land —

Act I of 1S65, s. 40 — Right to trees on

• — Bom.

land. The occupier of land who does not come
under s. 40 of the Bombay Survey and Settlement
Act, 1865, has not, in the absence of agreement, any
proprietary right to the trees growing on liis land.

■GOVIND PURSHOTAM KOLATKAR V. SUB-COLLECTOR

AJND Deputy Conservator of Forests of Co-
IM^BA . . . , e Bom. A. C. 188

15. Lien of mortgagee on

guava trees after ejectment of tenant-
Trees planted by tenant. A raiyat mortgaged cer-
tain guava trees which he had planted on a portion
of his holding. Subsequently the zamindar ob-
tained a decree against the raiyat for ejectment,
and after his ejectment the mortgagees obtained a
decree on their mortgage-deed. Held, in a suit
between the mortgagees and the zan indar, that
their lien on the trees was destroyed by the eject-
ment of the raiyat. Pearun v. Ram Narain
Singh alias Rxtnnoo Singh

1 N. W. Ed. 1873, 213

16. Right to hypothecate

trees — Tenant with right of occupancy. A tenant
with a right of occupancy can only make a vahd
hypothecation of the trees on the land he holds
for the term of his tenancy ; with his ejectment from
such land and the cessation of his tenancy, such an
hypothecation ceases to be enforceable. Ajudhia
Nath v. Sital , . I. Ii. R. 3 All. 567

17. Right of usufructuary

mortgage — Right to trees planted by him during

VOL. III.

of decree against tenant — Trees planted by
occupancy-tenant with landlord's consent — Trans-
fer of right of occupancy— Act XII of IS.Sl (N.-W. P.
Rent Act), s. 9. An occuxjancy-tenant, whose
orange trees, planted with the landholder's consent,
had been sold in execution of a decree against
him, made a collusive resignation of his land to the
landholder, who thereupon sued the purchaser and
the occupancy-tenant for possession of the land with
or without the trees. Held, that, as the purchase
■did not involve a transfer of the tenancy of the land
in the sense of s. 9 of the N.-W. P. Rent Act, nor any
change in the relations between the landholder and
the occupancy-tenant such as was proliibited by
that law, landholder was not entitled to possession
of the land. Lalman v. Mannit Lal

I. L. R. 6 All. 19

LANDLORD AND TENANT— co««d.

20. PROPERTY IN TREES AND WOOD ON
LAND— confd.

tenure. Held, that, although defendant, usufruc-
tuary mortgagee of a share in a joint estate, would
not acquire any right to the trees planted by him in
his mortgage term, yet, as co-parcener in the estate,
he would be sharer in the trees. Bahadoor Khan
V. KoRA Mull ... 1 Agra 281

18. . Ex-proprietary tenant,

right of — Nature of the right of occupancy — N.-
W. F. Rent Act (XII of ISSl), s. 7— Trees. In a
suit for recovery of possession of zamindari property
conveyed by sale-deed, including certain plots of
land which were the defendant-vendor's sir, the
lower Courts held, M'ith reference to s. 7 of the N.-W.
P. Rent Act (XII of 1881), that the defendant was
entitled to hold possession of the said plots as
ex-proprietary tenant ; but as it appeared that they
had fruit and other trees upon them, the Courts
awarded the plaintiff possession of these trees on the
ground that the nature of an ex-proprietary tenure
did not entitle the holder to resist a claim of tliis
kind as to the trees upon the land forming the area
of such tenure. Held, that this decision was errone-
ous, and that the plaintiff's claim to possession of
the trees upon the plots in question must be dis-
missed. Per MaHiMOOD, J., that the principle of the
maxim cujus est solum ejus est usque ad cuhim was
api:)]ioable to the case by way of analogy, and that
an ex-projmetar}' tenant had all the rights and inci-
dents, assigned by jurisprudence to the ownership of
land subject only to the restriction imposed upon
the occupancy-tenure by the statute which created
it, and that hence he would be entitled to the trees
on the land, and to use them as long as the tenure
existed. Sohodwa v. Smith, 12 B. L. R. 82 ; Naren-
dra Narain Roy Chowdhry v. Ishan Chandra Sen, 13
B. L. R. 274 ; Gopal Pandey v. Parsotom Duss,
I. L. R. 5 All. 121 ; Goluck Rana v. Nuba Soon-
duree Dassee, 21 W. R. 314 ; Mahomed Ali \.
Bolakee Bhuggut, 24 W. R. 330 ; Ram Baran Ram
V. Salig Ram Singh, I. L. R. 2 All. <S96 ; and Dehi
Prasad v. Har Dyal, I. L. R. 7 All. 691, referred
to. Also, per Mahmood, J., that it would be impos-
sible to give effect to the lower Court's decrees
without disturbing the ex-proprietary tenant's
rights, for if the plaintiff were entitled to possession
of the trees, he would be entitled to enter upon the
land to get at the trees, because when the law gives
a right, it must be understood to allow everj'tliing
necessary to give that right effect. Deoki Nandan
V. Dhian Singh . . I. L. R. 8 All. 467

19.

Trees— Sale

execution of decree— N.-W. P. Rent Act (XII of
ISSl), ss. 7, 9. Held, by the Full Bench, that an
ex-proprietor, who, under s. 7 of Act Xll of ISSI
(N.-W. P. Rent Act), gets occupancj' rights in his
sir land, obtains analogous rights in the trees upon
such sir land. A purchaser of proprietary rights in
zamindari property at a sale in execution of a decree
for money held by himself apphed in execution of
the decree for the attachment and sale of certain
trees growing on the judgment-debtor's ex-proprie-

9 T

( 6435 )

DIGEST OF CASES.

( 6436 )

IjANDLOBD and tenant— fow^/.

20. PROPERTY IN TREES AND WOOD ON
LAND— confd.

tary holding. Held, by the Full Bench, with
reference to the provisions of ss. 7 and 9 of Act XII
of 1881 (N.-W. P. Rent Act), that the trees were not
liable to attachment and sale in execution of the
decree. Per Straight, J. — When a proprietor sells
his rights, and becomes entitled under s. 7 of the
Rent Act to the rights of an ex-proprietary tenant,
he holds all rights in the land qua such tenant, which
he formally held in his character as proprietor, and
paying rent in his capacity as tenant. Where there
are trees upon the sir land held by him at the time
when he lost his proprietary rights, neither the
purchaser of those rights nor he himself can cut j
down, or sell them iji invitum to each other. Short
of cutting the trees down, he has the same right to
enjov the trees as he originally had. Jugal v. !
Deoki Nandan . . I. L. K. 9 All. 88 I

20. Right of oeeupancy-raiyat j

to cut down trees — Bengal Tenancy Act { VIII
of i.V.S.5), A'. 23 — Onus of proof — Custom — Suit for
damages. Certain occupancy-raiyats were by the
custom of the zamindari entitled, after obtaining the
permission of the village barua (headman), to cut
down and appropiiate agachha (valueless) trees for
fuel. No payment was ever made for such permis-
sion. The defendants, the raiyats, cut down and
appropriated some agachha trees grown upon the
lands after thej' entered into possession. The
zamindar sued the defendants for damages. Held,
that, even if permission to cut the trees had not been
given, the zamindar had in no way suffered damage,
and had no cause of action. Held, also, that in such
a case the onus of proving the custom of the zamin-
dari was on the zamindar. Grija Nath Eoy v. Mia
Vila Nasoya, I. L. R. 22 Calc. 744 note, and Nafar
Chandra Pal Chowdhuri v. Bam Lai Pal, I. L. R. 22
Calc. 742, applied. Samsab Khan v. Lochin
Dass . . . . I. L. R. 23 Calc. 854

21. . Property in trees

groiving on land— Bengal Tenancy Act {VIII of
1885) s. 23 — Right of occupancy -tenant to cut down
trees — Right of occupancy -tenant to appropriate
trees when cut down — Onus of proof — ■Custom —
Suit for damages. The property in trees growing
on land is, by the general law, vested in the pro-
prietor of the land, subject, of course, to any
custom to the contrary. Under s. 23 of the Bengal
Tenancy Act, the onus is on the landlord to
show that a tenant with occupancy rigJit is
debarred from cutting down the trees on the
land, and not on the tenant to prove a custom
giving him the right to do so. The right to
appropriate them when cut down, however,
is a different question. In a suit by landlords
against their tenants who had a right of occu-
pancy for appropriating some mango trees grow-
ing on their land which they had cut down : — Held,
that the onus was rightly thrown on the tenants
of pro\dng a custom they alleged, giving them
the right to sell the trees, and, on failure to prove
such cu.stom, they were hable to damages for so I

LANDLORD AND TENANT— confrf.

20. PROPERTY IN TREES AND WOOD ON
LAND— con<<i.

appropriating them. Nafar Chandra Pal Chow-
dhuri V. Ram Lal Pal I. L. R. 22 Calc. 742

22. An occupancy-
tenant has a right to cut down trees unless a custom
to the contrary is jjroved by the landlord. Grija
Nath Roy v. Mia Ulla Nasoya

I. L. R, 22 Calc. 744 note

Nafar Chandra Pal Chowdhry v. Hazaki

Nath Ghose . I. L. R. 22 Calc. 748 note

NuFFER Chunder Ghose V. NuND Lal Gos-

syamy . . L L. R. 22 Calc. 751 note

(Contra) Pyari Lall Pal v. Narayan Mandal

I. L. R. 22 Calc. 746 note

where it was held that the onus lay on the tenant to

prove a custom allowing him to cut down trees.

23. Trees growing on land —

Lease for purpose of clearing jungle land. Where
a lease of a mouzah was granted for the express
purpose of clearing jungle land and bringing it
under cultivation, and no reservation of the right in ■
the trees was made in the lease : — Held, that the
lessee had the right to appropriate the trees when
cut. MoN MoHiNi GooPTA V. Raghoonath
MissER . . . I. L. R. 23 Calc. 209

24. . Trees, sale ot— Occupancy-
tenant — Such sale invalid— Act XII of 18S], s. 9.
The trees upon an occupancy-holding, whether
planted by the tenant himself or not, belong and
attach to such holding, and like it are not suscep-
tible of transfer by the tenant. Imdad Khatun v.
Bhagirath . . . I. L. R. 10 All. 159

25. Right of tenant to cut

down and sell trees. 'J'he property in trees
growing on a tenant's holding is by the general law
vested in the zamindar, and a tenant is not entitled,
in the absence of special custom, the burden of
proving which is on him, to cut down and sell such
trees. Imdad Khatun v. Bhagirath, I. L. R. 10 All.
169 ; Nafar Chandra Pal Chowdhuri v. Ram Lal
Pal, I. L. R. 22 Calc. t:42 ; and Ruttonji Edidii
Shet V. Collector of Tlianna, 11 Moo. I. A. 296,
referred to. Kausalia v. Gulab Kuab

I. L. R. 21 All. 297

26. Suit for possession of

fallen wood of seif-sovsrn trees growing
upon an occupancy-holding — Burden of proof*
A zamindar claiming a right to the fallen wood of
self-sown trees which had been growing on an occu-
pancy-holding must prove some custom or contract
by which he is entitled to take such wood. The
English law as to ownersliip under similar circum-
stances cannot be applied, and [sed quccre) there is no
general rule in India to decide that there is a right
in the landlord or a right in the tenant by general
custom to the fallen wood of .self-sown trees.
Nathan v. Kamla Kuar . I. L. R. 31 All. 571

27. Ownership of trees stand-
ing on fixed-rate tenant's holding—

( 6437 )

DlGEbT OF CASES.

( 6438 )

LANDLORD AND TENANT— conirf.

20. PROPERTY IN TREES AND WOOD ON
LAND— confd.

Evidence — Presumption — Tenant at fixed rate. A
tenant at fixed rates having a transferable right
in his holding, the presumption is that the trees
standing thereon are the property of the tenant
and not of the zamindar. Harbans Lal v.
Maharaja op Benares (1900)

I. L. B. 23 All. 126

Kanomdar, right of —

Malabar Compensation jar Tenants' Improvements
Act (Madras Act I of 1SS7), ss. 2, 3, 4, >i~Malabar
Compensation for Tenants' Improvements Act
(3Iadras Act I of 1900), ss. 3, 4, 7, 10—
Transfer of Property Act (Act IV of 1SS2), ss.
lOS (h), (o), 117 — Riijht of kanomdar to remove
and appropriate trees planted by himself. A
kanomdar is entitled, during the period of his
occupation, to remove and appropriate to him-
self any trees that he has planted, provided
that he leaves the property substantially in the state
in which he received it. Vasudevan Nambitdripad
V. Valia Chathit Achan (1900)

1. L. R. 24 Mad. 47

29. . Property in trees planted

by a tenant on his holding. When a t<>n-
ant, either occupancy or tenant-at-will, plants
trees on his holding, the property in those trees, in
the absence of custom or contract to the contrary,
attaches to the land, and the tenant has no power
of selling or otherwise transferring those trees.
Ajudkia Nath v. Sital, I. L. B. 3 All. 567; Imdad
Khatiin v. Bhngirath, I- L. R. 10 All. 1-59, and
Kausalia v. Gulah Kunwar, I. L. R. 21 All. 297,
refeiTed to. Janki v. Shevadhab (1901)

I. L. R. 23 All. 211

30. Tenants holding kudiva-

ram rights in perpetuity — Right to trees
growing on the lands — Claim by zamindar — Madras
Regulation XXV of 1^02 — Madras Regulation IV of
l'^22. Plaintiffs, as lessees of a zamindari in the
district of Madura, sued their tenants to recover the
value of trees cut by the tenants on their holdings
and carried away therefrom. The tenants admitted-
ly held the kudivaram right in prepetuity, and it was
not shown that they derived their title from the
zamindar, or that the ordinary kudivaram right was
limited, in their case, by any contract or .special or
local usage: — Held, that plaintiffs were not
entitled to recover. Narayaxa Ayyangar v. Ork
(1902) . . . . L L. R. 26 Mad. 252

31. Usage — Civil Procedure Code

(Act XIV of l'^S2), s. 5S4— Power of Court on
second appeal to examine evidence of usage — Custom.
A ryot holding lands in a zamindari on a permanent
tenure would, as regards land on which a money
assessment is paid, be prima facie entitled exclusive-
ly to the trees thereon. Where the crops are shared
between the ryot and zemindai, they will be jointly
interested in such trees, but such presumptions may
be rebutted by proof of usage or contract to the
contrary. Narayana Ayyangar v. Orr, I. L. B. 26

LANDLORD AND TENANT-^owW.

20. PROPERTY IN TREES AND WOOD ON
lAND—concld.

Mad. 2-52, followed. Although the provisions of
s. 584 of the Code of Civil Procedure disallowed a
second appeal with reference to findings of fact, yet
the existence or non-existence of usage having the
force of law is unaffected by such disallowance.
Consequently, it is the duty of the Court, when it
has to pronounce an opinion upon such questions,
to examine the evidence bearing on it, not only as to
the sufficiency thereof to estabhsh all the elements
(antiquity, uniformity, etc.) required to constitute
a valid usage having the force of law, but also the
credibiUty of the evidence relied on and the weight
due to it. Custom in India is transcendent law. A
custom cannot be established by a few instances or
by instances of recent date. Observations on the
nature of evidence necessary to support custom.
Eranjoli Vishnu Nambudri v. Eranjoli
Kishnan Nambudri, I. L. R. 7 Mad. 3, followed.
Hurrry Churn Dass v. Nimai Chand Keyal, I. L. R.
10 Calc. 13'^\ not followed. Bai Shriyibai v. Khur-
shedji, I. L. R. 22 Bom. 430, not followed. Kakarla
Abbayya v. Venkata Papayya Rao (1905)

L L. R. 29 Mad. 24

32.

Raiyat with occupancy-

right has no right to cut fruit trees
Occupancy-right, nature of. Raiyats with rights of
occupancy possess in their lands a heritable
and alienable interest of a permanent character,
but not the sole interest. The landlord ia
interested in maintaining the saleability of the
holding, and in protecting such interest he is
entitled to restrain the raiyat from cutting
fruit-bearing trees. Bangayya Appa Rao v.
Kadiyala Rathnam, I. L. R. 13 Mad. 249, followed.

BODDA GODDEPPA V. THE MaHABAJA OF VlZIAXA-

GBAM (1906) . . . I. L. R. 30 Mad. 155

33.

Landlord's right to cut

down trees — Landholder's and tenant's rights
as to trees on tenant's holding. Held, that in
the absence of special agreement a tenant
has, as against his landlord, a right to insist
that so long as his tenancy continues the land-
lord shall not cut down trees standing on
the tenant's holding. Deokinandan v. Dhian
Singh I. L. R. S All. 467 ; Kousalia v. GuUih
Kurmar, I. L. R. 21 All. 297, and Ruttonjt
Edulji Shet v. The Collector of Thana, 11 Moo. I. A.
■^95, referred to. Bad.am v. Ganga Dei (1907)

I. L. R. 29 KM. 484

21. FORFEITURE. /

(a) Breach op Conditions.

1. Condition for forfeiture.

construction of. A condition of forfeiture
should not be extended beyond the words in
wliich it is expressed, unless, perhaps, it is impos-
sible without so extending it to give a reasonable
construction to the instrument in which it appears..

9t2

6439 )

DIGEST OF CASES.

( 6440 )

LANDLORD AND TENANT— co««rf.

21. FORFEITURE— co.ifef.

(a) Breach of Conditions — contd.

Ram Nubsingh Chuckerbutty v. Dwarkanath
Gangooly . . . . 23W. R. 10

2. Condition for forfeiture—

Concurrent remedies for breach of conditions in
lease — Damages. There is nothing incompatible in
the two remedies of damages and forfeiture for
breach of the conditions of a lease. Here there is
an obligation (as in this case by a lessee) to do
several successive acts, the obligation is broken if
any one of the acts is omitted when the time for its
performance comes. The lessor is not obliged to
wait until the expiration of the term ; nor is the
lease liable to several successive suits for each
partial breach of the condition, and then to one
general penalty for the whole. Nor is it usual,
when a penalty is provided for breach of condition,
to bring two suits — one to enquire into the existence
of the breach, and the other to enforce the penalty.
Chunder Nath Misser v. Sirdar Khan

18 W. R. 218

3. ■ Conveyance with

LANDLORD AND TENANT— confd.
21. FORFEITURE— conid.
(a) Breach of Conditions — contd.

Mahomed Faez Chowdhry v. Shib Doot.aree
Tewaree . . . . 6 "W. R. 103

TUMEEZOODDEEN ChOWDHRY V. SURWAR KhAN

7 W. R. 209

6. . Ejectment —

Raiyat with right of occupancy. A raiyat with a
right of occupancy, though holding under a tempo-
rary fjottah for a term of years, cannot be ejected by
his landlord, unless the latter can prove a stipulation
under s. 7, Act X of 1S59. S heeb Dyal PAUtEET
V. Dwarkanath Sookul 2 "W. R., Act X, 54

7. Improper use of

land — Ejectment. Where a tenant has been

guilty of a breach of duty in the use of his land, such

j as making a tank in it, building on it improperly, or

changing the character of the cultivation, such eon-

j duct does not necessarily operate as a forfeiture so as

I to render the tenant liable to ejectment. Noyna

j MiSSER v. RtTVIKUN

I. L. R. 9 Gale. 609 : 12 C. L. R. 300

agreement to re-purchase — Lease. A conveyed land
to B, with a collateral agreement to re-purchase
within a certain period ; the right to redeem, how-
ever, being dependent upon the due preformance by
A of the conditions of a certain lease of the land in
question M'hich /I, remaining in possession, agreed to
take from B. The rent falling in arrear, B sold the
land to C, \\-ithin the period allowed A to redeem.
On appeal the High Court set aside the sale, holding
that there was no natural connection between the
lease and the condition to redeem, and that the
clause for forfeitiu-e was so vaguely worded as to
have the appearance of a mere threat, as in equity
in the absence of specific mention of the nature of the
failure which is to bring down the penalty of for-
feiture, that penaltj' ought not to fie enforced.
Anonymotts . . 1 Ind. Jur. 0. S. 130

s.c. C'hidambara Pimai v. Mankikka Chetti
1 Mad. 63

Perpetual lease

granted for consideration — Clause providing for
forfeiture on rent being in arrears — -Whether re.-
paym.ent of the consideration is a condition precedent
to surrender of lands. Consideration paid for a
lease is exhausted by the grant of the lease, and a
tenant's forfeiture of the lease cannot, in the absence
of a provision to that effect, operate so as to convert
the original consideration into a debt which must
be paid before the forfeiture can be enforced. Kam-
makan Nambiar v. Chindan Nambiar

I. L. R. 18 Mad. 32

5. _ Breach of conditions in

lease. A breach of any of the stipulations in a lease
does not cancel the lease or give a right to eject
unless there has been an express provision to that
effect in the lease. Augur Singh v. Mohinee
DoTT Singh . . 2 W. R., Act X, 101

Destruction of

trees and alteration of cultivation by ten/mt — -Right
of re-entry. Some of the trees in a grove were
destroyed, and the tenant brought the land on which
they had existed into cultivation. His act ot)erated
to create a right of re-entry on so much of the land
in favour of the landholder. Amir Singh v. Moaz-
zuM Ao Khan . . . . 7 N. W. 58

9. ; — Forfeiture for

neglect to cultivate — Construction of lea^e. Where
it was a condition in the kabuliat that the tenant's
holding would be forfeited if he neglected to culti-
vate the land without reasonable excuse : — Held,
that the condition could not be regarded as a mere
ad terrorem clause, since, if it came to the selling up
of the tenure for default, it made a great difference
to the landlord whether the land liad been properly
cultivated or not. Golam An Chowdhry v.
Bhosai .... 25 W. R, 227

10.

Right to cancel tenancy—

Zamindar — Resumption of layid for non-cultiva-
tioi>. A zamindar cannot put an end to the relation
of landord and tenant, except in the manner pro-
vided by law. A tenancy is not determined by the
mere fact that the tenant has allowed the land to
remain uncultivated. Dinabhandu v. Lokana-
dhasami . . . I. L. R. 6 Mad. 322

11.

Non-payment

of rent. Omission to pay rent may be a good ground
for a suit for arrears of rent or for ejectment, but
not for the cancelment of a pottah not otherwise im-
pugned. Umrithnath Chowdhry v. Koonj Be-
hary Singh . . . W. R. F. B. 34

12.

Non-payment

of rent. The right to cancel a lease for non-payment
of rent by a lease-holder not having a permanent >

( 6441 )

DIGEST OF CASES.

( 64l2 )

IiANDLOKD AND TENANT— contd.

21. FORFEITURE— coK<a.

(a) Beeach of Conditions — contd.

transferable interest in the land being given by
s. 22, Act X of 1 859, need not be provided for in the
lease. Kadir Gazeb v. Mohadebee Dossia

6 W. R., Act X, 47

13. Liability to have tenancy

cancelled — Gatlculi tenant- — Non-payment of as-
sessment. Where a gatkuli tenant omits to pay the
assessment on his gatkuli land, he does not lose his
right to the land unless some other person is put in
possession by Government. Any one simply taking
possession is merely a trespasser, against whom the
gatkuli tenant would be entitled to recover. Mal-

HARI VALAD RaGHOJI V. TuKARAM VALAD DaEKO.II

6 Bom, A. C. 86

14. ■ Non-payment of rent —

Lease, construction of— Condition i for forfeiture.
Where a lease of 1847 contained two provisions,
one for the payment of R 1,300 as rent and the other
was stipulation for forfeitiu-e and re-entry on de-
fault of payment, and by a solenamah of 1848 that
rent was put an end to, and in lieu thereof the lessor
received back a portion of the land leased in 1847,
but by a subsequent solenamah of 1858 the lessees
agreed to pay R334 as rent, but no new provision
was made for re-entry, and no fresh stipulation for
forfeiture : — Held, that the clause of forfeiture and
re-entry in res]^)ect of the R 1,300 under the lease of
1847 did not apply to the R334 under the solenamah
of 1858. RuHMooNissA V. SooPUN Jan

18 W. R. 244

15. _ Ejectment — Right

of occupancy — Beng. Act VIII of 1S69, s. 52.
The mere omission to pay rent for five years
does not of itself amount to forfeiture of a raiyat's
right of occupancy, and will not be sufficient to sus-
tain an action by the landlord for the recovery of the
raiyat's holding. A raiyat having a right of occu-
pancy cannot be legally ejected, unless under an
order regularly obtained under s. 52 of the Rent
Law, — that is, under a decree for arrears of rent
unsatisfied within fifteen days from the passing of
the decree. Musyatulla v. Noorzahan

I. L. R. 9 Calc. 808

16. Benqal Tenancy

Act {VIII of 1885), s. 3, cl. 5, ss. 179, 195 (e).
A stipulation in a patni lease that by reason of non-
payment of rent by the patnidar he ^\ould forfeit
his tenancy is not valid. Mohabut Ali v. Maho-
med Faizullah . . 2 C. W. N. 455

17. Failure to pay rent at due

date— A^-ir. P. Rent Act, XVIII of 1S73, s. 93,
cl. (c) — Suit for cancebnent of lease — Breach of con-
ditions involving forfeiture. The plaintilf, the re-
presentative in title of a lessor, sued under cl. (r),
p. 93 of Act XVIII of 1873, for the cancelment of a
lease, on the grounds, among others, that the lessees
had paid the rent to the Collector, on account of the
revenue due in respect of the estate, instead of to
him ; secondly, on the ground that they had failed

LANDLORD AND T'ES KlUT— contd .

21. FORFEITURE— con/d.

(a) Breach op Conditions — contd.

to pay certain instalments of rent on the due dates ;
there by committing breaches of the conditions of
the lease involving its forfeiture. Hell, on the
construclion of the lease, with reference to the first
ground, that as the lease was intended to be per-
petual, and as the rent had been paid to the
Collector for many years under an arrangement
effected between the parties to the lease, and it
was not shown that the plaintiff had repudiated
this arrangement (even if he had the power of
so doing) or demanded payment of the rent
directly to himself, payment of rent by the lessees to
the Collector did not amount to a breach of the
conditions of the lease : with reference to the second
ground, that the lease being intended to be perpetual
and no arrears of rent being due, irregularity and
unpunctuality in the payment of the instalments of
rent in question were not breaches of the conditions
of the lease involving its forfeiture. Ablakh Rai v.
Ahmad Khan . . I. L. R. 2 All. 437

18. Breach of con-

ditions of lease — Delay in payment of rent — Right
to intered. In strict law a farmer forfeits his lease
by the withdrawal of the personal security given by
him at the time of taking the farm. But cases of
forfeiture are not favoiu-ed when no injury has
resulted, or when a money compensation is a suffi-
cient remedy. Mere unpunctuality in the date of
payment of rent is no ground for forfeiture. The
zamindar, if he has sustained injury by such un-
punctuality, may sue for the interest due during the
period in which the different instalments remained
unpaid and for conditional forfeiture, but he cannot
demand at once the absolute forfeiture of the pro-
perty. AixM Chundkr Shaw Chowdhrv v.
McmAN . . . W. R. 1874 , Act X, 31

19. Right to re-enter, accrual

of — Relief against forfeiture for non-payment of
rent. It is not absolutely necessary for a lessor to
take legal measures for obtaining possession of the
demised pi-operty on accrual of right of re-entry for
breach of covenant. He may (if he can do so peace-
ably and quietly) take possession thereof without
having recourse to civil proceedings (wliich are only
necessary in case he apprehends resistance) ; and if
he does so re-en<^er, he cannot be sued for trespass,
inasmuch as the interest of the lessee becomes for-
feited and the lessor enters on what is in fact his
j own property. The mere fact of demanding rent
in one year is not sufficient to create an obligation
to make such a demand in subsequent years, or on
failure thereof to debar the right of re-entry. Relief
may be granted bv* the Courts in India against for-
feiture for non-payment of rent. A lessor who has
re-entered on the demised property for breach of a
particular condition can, when cailal upon to defend
his position, plead other breaches which might have
justified the re-cntr}-, and cannot be restricted to
prove only that under which he originally claimed

( 6443 )

DIGEST OF CASES.

( 6444 )

liAWDLORD AND TENANT— confd.

21. FORFEITURE— con^.

(a) Beeach op Conditions — contd.

re-entry. Great Eastern Hotel Company v.
Collector of Allahabad 2 Agra Ex, O. C. 1

20. U.^e and occu-
pation— Re-entry — Demand of rent — Stat. 32 Hen.
VIII, c. 31 — Waiver. A covenant in a lease reserved
to the lessor, on default of paj^ment of rent, a power
of re-entry ; there being no mention in such cove-
nant of a similar power being also reserved to his
' ' heirs, successors or assigns. ' ' The lessor sold his
rights in the property leased to third person, and
such third persons endeavoured to re-enter under
the covenant. Held, that although re-ent.-y was
reserved only of the lessor, yet bin vendees could
take advantage of the covenant, the operative part
of the Stat. 32 Hen. VIII, c. 34, being wide enough
to admit of this, notwithstanding the wording of the
preamble. Held, further, that the forfeiture having
been waived by subsequent demands for rent, and
there being no legal demand for rent on th*^ last day
on which rent at a date subsequent to the waiver
fell due, the vendees nere not entitled to make use
of their right of re-entrv. Kristo Nath Koondoo
V. Brown . . ^ . I. L. R. 14 Gale. 176

21. Relief against forfeiture —
Pemdty — Non-payment of rent. Third defendant,
purchaser of the interest of first and second defend-
ants, held certain lands under the terms of a per-
manent kanam (A) \\hich contained the following
condition: "And (I have also agreed) that on
failure to pay the said quantitj' of paddy the kanam
amount of 550 fanams shall be received by me, and
the land restored." In a suit by the kanamdar to
recover possession for non-payment of rent : — Held,
that this condition of redemption v.as intended as a
penalty to secure regular payments of the rent, and
that, such being the original intention of the parties,
the penalty was one which ought to be relieved
against. Kottal Uppi v. Edavalath Thathan
Nambudiri .... 6 Mad. 258

22. , ^ Forfeiture for

non--payment of rent — Tranffer of reversion —
Transfer of Property .Act (IV of 7SS?), ?. 6, cl. (b).
A condition in a lease providing that the laiKl-
lord may re-enter on non-payment of rent is penal
and \riil be relieved against, apart from the provi-
s'oas of the Transfer of Pioperty .^ct. Semble :
The transfer of the reversion based on a clause for
forfeiture is not invalid by reason of Transfer of
Property Act, s. 6, cl. (h).' Vagcran v. Rangay-
YANGAR . . . I. L. R. 15 Mad. 125

23. Condition in

mokurari lease for forfeiture on non-payment of
rent. Where, in a mokurari lease, there was a condi-
tion that, in case of ui in-])ayraent of one year's rent,
and its falling into arrears, the mokurari .settlement
was to be cancelled, and default was made and a suit
for ejectment was brought -.—Held, that, independ-
ently of the Rent Act, the defendants should be

LANDLORD AND TENANT— conirf.

21. FORFEITURE— cow<rf.

(a) Breach of Conditions — contd.

allowed in equity a reasonable time to pay the land-
lord's dues in order to prevent forfeiture. Maho-
med Ameer v. Peryag Singh

I. L. R. 7 Gale. 566
9 G. L. R. 185

24.

Mnlgr,

lease.

void for non-payment of rent or alienation — Rdief
against -penalty. Where a perpetual lease was
granted subject to a condition that if the rent was
not paid in any year or if the land was alienated by
the tenant the lease became void and all rights to
improvements effected by the tenant forfeited: —
Held, (i) that a sale of the tenant's right in execution
of a decree for arrears of rent, obtained by the land-
lord and transferred by him to a stranger, was not a
breach of the condition against alienation ; (ii) that
the landlord having already sued for arrears of rent
for three years without claiming recovery of the land
could not again sue to recover the land on the
ground of non-payment of rent during those years ;
(iii) that the forfeiture could not be enforced against
the purchaser of the tenant's rights at the execution
sale for non-payment of rent which accrued subse-
quently to those three years as the condition must
be held to have been intended to secure payment of
the rent and the penalty ought to be relieved
against. Subbaeaya Kamti v. Krishna Kamti
I. L. R. 6 Mad. 159

25.

— Mvlgaini lecise

— Non-payment of rent — Penal clatise. In a mul-
gaini lease dated 1849, it was stipulated that, if the
rent fell in arrear in any year, the lease should be
cancelled. Held, that this clause must be construed
as a penal clause which should be relieved against.
Kottal Uppi V. Edavalath Thathan Nambudri, 6
Mad. 258, followed. Narayana Sanabhoga v.
Narayana Nayak . I. L. R. 6 Mad. 327

26.

■ Condition re-
Alienation by act of law —

straining alienation

Sale in execution of decree. By a clause ir
it was stipulated that the lessee would not transfer
the land leased to him, and that if jhe did so, the sale
was to be void. The land was sold to the defend-
ants in execution of a decree obtained against the
lessee. Held, that, the land having been sold
against the will of the lessee by the act of a Court,
the lessee could not be said to have voluntarily
transferred his interest. Tatnaya v. Timapa
Ganpaya, I. L: R. 7 Bom. 262, and Sid)baraya v.
Krishna, I. L. R. 6 Mad. L'iQ, approved. Nil
Madhab Sikdar v. Narattam Sikdar

I. L. R. 17 Gale. 826

27. ■ Non-payment

of rent. The Court will not relieve against the for-
feiture i)i a lease caused by non-payment of rent, al-
though the lessor on previous occasions has waived
the forfeiture. Cutenho v. . Souza 1 Mad. 15

( 6445 )

DIGEST OF CASKS.

( 6446 )

X.ANDLORD AND TENANT— conirf.
21. FORFEITURE— con<<Z.
(a) Breach of Conditions — contd.

28. Planting trees — Liability

io ejectment — Consent of landlord. Held, that a
raiyat having a right of occupancy forfeits his hold-
•ing and is Hable to ejectment therefrom if he plants
trees on a portion of his holding without the land-
lord's consent. Jewa Ram v. Futteh Singh.
Tez Singh v. Ram Dass

Agra F. B. 125 : Ed. 1874, 94

29. — Right of tenants

io plant trees without consent of zamindar. The
question whether tenants have a right to keep up or
renew existing baghs by planting new trees without
the consent of zamindar must be determined with
reference to the custom of the country. Jhona
Singh v. Neaz Begum . 2 Agra, Pt. II, 183

30. Waste— Plant-
ing a mamjo tope on dry larul. In the absence of
local custom, tenants are not entitled to convert land
under ctiltivation into a mango grove. Tenants
from j'car to year are not at liberty to change the
usual course of husbandry without the consent of
the landlord. Lakshmana v. Ramachandra

I. L. K. 10 Mad. 351

31. Agricultural land

— Change in the nature of cultivation — Waste.
The defendant held from the plaintiff irrigable
land which was cultivated \\ith paddy, raggi, etc.
he had an occupancy-right in his holding and paid a
fixed money rent. The defendant having planted
cocoanut trees on the land the plaintiff sued to eject
Jiim and to have the trees removed. Held, that the
acts of the defendant did not constitute waste or a
breach of the terms of his tenancy, and that the suit
•should be dismissed. Venkayya v. Ram as ami

I. L. R. 22 Mad. 30

32. Muafidars of

Government. Held, that the plaintiffs, being mere
muafidars of a moiety of the right of Government,
had no right to plant trees themselves or to prevent
the zamindars from planting the trees, as they had
no right to the land. Azurroodeen v. Mohur
Singh 2 Agra 165

83. Ejectment for

planting trees. In an action of ejectment for plant-
ing trees, the penalty of forfeiture is not to be
enforced as a matter of strict right ; the Court may
make a decree for removal of the trees. Koora v.
Dick 3 N. W. 322

Ejectment —

Liability to forfeiture of entire holding by planting on
one portion. A tenant planted trees on one of the
Jplots of land comprising his holding, an act which
rendered him liable to ejectment. He paid rent,
not in respect of each plot of land, but in respect of
the entire holding. Held, that he was liable to
ejectment not merely from the plot on which ho had
planted the trees, but from his entire holding.
Bholai t;. Rajah op Bansi I. L. R. 4 All. 174

LANDLORD AND TENANT— row^?.
21. FORFEITURE— con^rf.

('/) Breach of^'Ponditxons — contd-

35. ^ Prohibition

against planting trees and sinking wells. The
plaintiff, the representative-in-title of the lessor,
sued under cl. (c), s. 93 of Act XVIII of 187.3, for
cancelment of a lease on the ground amongst others,
that the lessees had planted trees and sunk wells
and had allowed their tenant to do the same without
the lessor's consent, thereby committing a breach
of the conditions of the lease involving forfeiture.
Held, that the condition as to the planting of trees
and sinking wells being merely a prohibition, and
not a condition the breach of which involved the
forfeiture of the lease, could not be cancelled because
the lessees had planted trees or sunk wells, and
allowed their tenants to do the same, without the
lessor's consent. Held, a: so, that, assuming that
the lessor was entitled, on that ground, to the
cancelment of the lease, cancelment was not to be
deemed the invariable penalty for the breach of such
a condition as that mentioned in that ground. The
Full Bench ruling in Sheo Churun v. Busunt Singh,
3 N.-W. 2f<2 followed. Ablakh Rai i-. Sali.m
Ahmed Khan . . I. L. R. 2 All. 437

36. ^^xh. letting— Right of ten-
ants to let their houses.4 Whether tenants are en
titled to let their houses, or whether, in the event ol
their letting houses, the zamindar can claim for
feiture, must be determined with reference to the
custom of the village. Ram Buksh Singh
Purdumun Kishore . 2 Agra, Pt. II. 202

37. Covenant not

to sub -let, tvhat constitutes breach of. Where there
is a covenant not to sub-let, what constitutes a sub-
lease causing forfeiture ? Held, that the lessee must
transfer all his rights of collecting rents and of suing
for them in the Courts ; and that although a sub-
lease may not be so absolute and complete as to
make the lease ipso facto void, yet it may be aueh a
fraudulent evasion of the terms of the covenant as
to entitle the plaintiff to equitable relief. The mere
fi.xing of a sum to be paid by the sub-tenant to the
farmer, and the declaration of the sub-tenant's right
to all sums collected beyond that amount are not
sufficient to convert an agency into a sub-lease.
Alum Chunder Shaw Chowdhky c. Moran

W. R. 1864, Act X, 31

38.

N.-W. P. Rent

Act {XII of ISSl), 8. 93 (h)—Act inconsistent with
the purpose for which the land wa-'i let — Sub-lease
of agricultural land to a theatrical company. An
agricultural tenant, at a time when there were no
crops growing on his holding, let part of it tempora-
rily to a theatrical company for the purpose of their
holding performance thereon. Held, that this was
not an act sufficient to cause a forfeiture of the ten-

j ancy within the meaning of s. 93 (b) of Act XII of

' 1881. YusuF Ali Khan v. Hiba

L L. R. 20 All. 469

( 6447 )

DIGEST OF CASES.

( 6448

LAHDIjOKD and tenant— confrf.

21. FORFEITURE— conR

(o) Breach of Conditions — contd.

39 Alienation of tenure—

Liability to forfeiture. A tenant who alienates his
tenure does not-thereby subject it to forfeiture.

DVVARKANATH MiSREE V. KaNAYE SiRDAR

16 W. E. Ill

And see Cases under Right of Occupancy —
Transfer of Right.

40. Transfer of lease — Effect

of unlicensed transfer of lease — Suit for ejectment.
The plaintiffs were mokurari lease-holders, prior
to whose lease the proprietor granted a pottah of the
same land to A, with a stipulation that A should
not let the land to others without leave. A after-
wards, with the proprietor's consent sold his lease to
B, who again, without such consent, sold his rights
to the defendants. The plaintiffs sued to eject the
defendants as trespassers. Held, that, as there was
nothing in the condition on which the plaintiffs (as
exercising the proprietor's rights) rely that implies
right of re-entry upon the land in case of a breach of
that condition, the only effect of the want of the
plaintiff's consent on the part of the plaintiffs to B's
sale was to maintain unimpaired B\s liability to the
landlord, without reference to the arrangement
between B and any other parties. And therefore
the plaintiffs were not entitled to eject the defend-
ants. Gordon, Stuart & Co. v. Taylor

W. R. F. B. 9

41.

Transfer of tenure — Trans-

fer of non-transferable tenure. The transfer of a
tenure not transferable by the custom of the country
gives the zamindar no right to take actual possession
so long as the rent is paid by the recorded tenant or
his heirs, and not by a stranger. Joy Kishen

MOOKERJEE V. RaJjKiSHEN MoOKERJEE

5 W. R. 147
42

Cuttack, tenures

in — Sarbarakari tenures — Alienation without con-
sent of landlord — Alienation by one of several co-
sharers. The alienation of a sarbarakari tenure
in Cuttack, and a fortiori the alienation of any
portion of such tenure, is inv^alid without the
consent of the landlord. Assuming that the sale of
such a tenure would entitle the landlord to' re-
enter as upon a forfeiture, the sale of a portion there-
of by one of several co-sharers would not work a
forfeiture of the whole tenure. Dassorathy Huri
Chunder Mahapattra v. Rama Krishna Jana

I. Ii. R. 9 Calc. 526 : 13 C. L. R. 114

43i

Bengal Tenancy

Act (VIII of 1S85) — Occupancy-raiyat transfer-
ring part of his holding without notice to the land-
lord— Forfeiture, groiind of. D was an occupancy-
raiyat of the plaintiff, a 14 annas shareholder in a
zamindari, and unknown to the plaintiff sold half
of his holding to the sons of his brother. The plaint-
iff then sued D for arrears of rent. D pleaded that he
could not be sueid for the whole amount, as he was

LANDLORD AND TENANT— cor»«.
21. FORFEITURE— confeZ.
(a) Breach of Conditions — contd.

only in possession of half of the holding. Subse-
quently to that the rent was paid into the Collectorate
by Z) and by his brother's sons. In a suit by the
plaintiff to eject D and his transferees on the ground
that D had forfeited his rights by transferring half
of his holding : — Held, that under the Bengal
Tenancy Act (Vlll of 1885) the sale or parting with
the whole or part of a holding is not a ground of for-
feiture. KLiBiL Sardar v. Chunder Nath Nag
Chowdhry . . I. L. R. 20 Calc. 590

See Chandra Mohun Mookhopadhaya v. Bisses-
SAR Chatterjee . . 1 C. W. N. 158

Kalinath Chakravarti v. Upendra Chandra
Chowdhry . . I. L. R. 24 Calc. 212

and Wilson v. Radha Dulabhi Koer

2 C. W. N. 63

44.

Tena7it parting

with portion of his holding — Right of landlord to
eject sub-tenant and recover possesdion. The trans-
fer by a raiyat with a right of occupancy of a part of
his holding does not entitle the landlord to recover
possession of the land transferred by ejecting the
transferee, in the absence of evidence to show that
by custom such transfer is not allowed. Durga
Charan Roy v. Pandab Nath, Letters Patent appeal
in Appeal from Appellate Decree No. 1440 of LS92,
followed. Kabil Sardar v. Chandra Nath Nag
Chowdhry, I. L. R. 20 Calc. 590, referred to. Tirt-
hamoid Thakiir v. Motty Lai Misra, I. L. R. 3
Calc. 744 ; Dwarka Nath Misser v. Harrish Chandra,
I. L. R. 4 Calc. 925 ; and Narendra Nath Roy v.
I.<han Chandra Sen, 13 B. L. R. 274, 22 W. R. 22,
distinguished. Doorga Prasad Sen v. Doula
Gazee .... 1 C.W. N. 160

45. The transfer by

a raiyat of a portion of his non-transferable tenure
without the consent of the landlord does not work
a forfeiture and the landlord is not entitled to
recover khas possession, but is entitled to a declara-
tion that the transfer of a portion of his holding
wliich has not been made with his written consent
is not binding on him as provided by s. 88 of the
Bengal Tenancy Act. Kabil Sardar v. Chunder
Nath Nag Chowdhry, I. L. R. 20 Calc. 590, followed.
Gozaffer Hossein v. Dablish . 1 C, W. N. 162

46. — — — ■ Assignment of

lease contrary to term of lease — Waiver of for-
feitJire, effect of — Damages on forfeiture for breach
of covenant to repair. An assignment by way of
mortgage of leasehold property in terms appropriate
to fazendari propert}', the lease and mense assign-
ments being handed over to the mortgagee of execu-
tion of the deed and a subsequent assignment of the
equity of redemption of the same property in terms
appropriate to freehold property, will, in the absence
of any circumstance to lead the assignees to believe
that the assignor had any further interest in the
property, operate as assignments of the lease.
Where there is a proviso in a lease for forfeiture oa

( 6449 )

DIGEST OF CASES.

( 6450 )

T.ANDLOKD AND TENANT— fonW.

21, FORFEITURE— conirf.

(a) Breach op Conditions — contd.

assignment without previous license of the lessor,
the acceptance by the lessor of rent or insurance
premia from the assignee without license or the
entering into an agreement with him in respect of
repairs, operates as a waiver of any and all causes
of forfeiture of which the lessor is at the time aware.
Where assignments of leaseholds are invalid as
being in breach of a covenant not to assign
without previous hcense and so causing for-
feiture of the lease, but are valid in all other
respects, on waiver of the forfeiture the assign-
ments become operative and those taking
under them become assignees of the lease with the
consent of the lessor, and are subject to all the
liabilities of such assignees. The rule in Joyner v.
Weeks, {1S91^ 2 (?. B. 31, 43, that when
there is a lease with a covenant to leave the premises
in repair at the end of the term, and such covenant
is broken, the lessee must pay what the lessor proves
to be a reasonable and proper amount for putting
the premises into the state of repair in which they
ought to be left, applies where a term has ceased
by forfeiture as well as where it has expired by
efflux of time. Sarafali Tayabali v. Subbaya
Bateraya . . . I. L. R. 20 Bom. 439

47.

Waiver of forfeiture-

Acceptance of rent. The acceptance of the rent by
the landlord after the institution of a suit to recover
possession of the land is not a waiver of a forfeiture
by the tenant under a condition in the lease. A
tenant, upon payment of all costs of the suit, will be
relieved from the consequence of such forfeiture, in
accordance with the practice of Courts of Equity
in England and America. Timmarsa Poranik v.
BADyfA . . .2 Bom. 70 : 2nd Ed. 66

Acceptance of

rent. Receipt of rent is not per se a waiver of every
previous forfeiture ; it is only evidence of a waiver.
Chuxder Nath Misser v. Sirdar Khan

18 W. R. 218

49.

Acceptance of

• rent. A lease provided that every four years a mea-

I surement should be made either by the lessor or

I by the lessees, and additional rent paid for accretion

to the land leased. It then provided for failure

I on the lessee's part to execute a kabuliat for the

I excess lands in the follow; ing terms : " If at the

I fixed time stated above, we do not take an Ameen

i and cause measurement to be made, you will

j appoint an Ameen and cause the entire land of the

I said chur to be measured, and no objection on the

ground of our recording or not our presence on such

1 measurement chitta shall be entertained and we

I «iU duly file a separate dowl kabuliat for the excess

I rent that will be found after deducting the settled

land of the dowl executed by us from the land

settled therein. If ^\e do not, we will be deprived

of our right of obtaining a settlement of such excess

and, as well as of the land which will accrete in

LANDLORD AND TENANT— conf<f.

21. FORFEITURE— co»«(i.

(a) Breach op Conditions — contd.

future to the said chur and no objection thereto on
our part shall be entertained." In a suit by the
lessor, alleging that in 1876 he had caused a measure-
ment to be made, and had called on the lessees to
execute a kabuliat for the rent of certain excess
lands, and praying that the les.sees might be ejected,
the lessees pleaded that the lessor had waived his
right to enforce the forfeiture by subsequent receipt
of rent. It appeared that payments had been made
to the lessor by the lessees, which were accepted as
rent, but were kept in suspense, subject to pay-
ment by the lessees of the "remaining amount."
Held, that such a qualification did not make the
payments anything else than payments of rent, and
that the lessor had waived his right to insist on re-
entr}' on the lessee's failure to measure the lands
or execute a kabuliat when called on to do so.
Davenport v. Queen, L. R. 3 App. Cos. 155, followed.
Kali Krishna Tagore v. Fuzle Ali Chowdhry
I. L. R. 9 Calc. 843 : 12 C. L. R. 592

50.

Alienation — Permanent lease

with covenant afjainM uliemdion — Sidise'iuent aliena-
tions— Suit to evict alienees — Maintainability —
Transfer of Property Act {IV of 1SS2), ss. 10,
111 ig) — Applic<ibility of principles of the Act to
lease executed prior to its enactment. In 1862, V
leased certain land on permanent lease to Y, the in-
strument reciting that Y had no right to alienate the
property. In 1890. Y sold the holding to S. In
1892, plaintiff acquired the rights of the original
lessor F, by purchase ; in 1894, S sold the holding to
the defendant.s. Plaintiff now sued to evict the
defendants claiming that the alienation to them
operated as a forfeiture of the lease. The lea.se con-
tained no express condition to that effect, nor did
it provide that, on breach of the stipulation against
alienation, the lessor might re-enter : — Held, that th»
alienation did not entitle the plaintiff to terminate
the permanent lease and re-enter upon the land.
Par.'VJIeshri v. Vittappa Shanbaga (19(12)

L L. R. 26 Mad. 157

51. Payment of rent— Relief

against forfeiture for non-payment of rent,
though stipidation for payment contained in com-
promise decree — Civil Procedure Code {Act XIV of
1SS2), *. 244 — Decree containing general .■stipulation
— Power of Court to relieve againtt penalty in execu-
tion proceedings. Certain lands wore held on lease,
and the rent fell into arrears. A suit was then
brought for the arrears and for po.<session, but the-
parties arrived at a compromise, and a decree was
passed in terms of that compromi.se. The decree
contained a stipulation that, if default should be
made in payment of rent within the time fixed for
payment each 3'ear, the lease should be forfeited-
Default was made, and possession of the lands and
the arrears of rent were .sought for in execution of
the decree, when it was objected that the stipulation
for forfeiture for non-payment of rent was a penal

6451 )

DIGEST OF CASES.

( 6452 )

liAHDIiORD AND TENANT— con^cZ.

21. FORFEITURE— con^d.

(a) Breach of Conditions — contd.

one, and should not be given effect to, even though
it was contained in a decree which was capable of
execution. Held, that, inasmuch as the decree
passed by the Com-t was a mere adoption of the
contract M'hich existed between the parties to it, the
Court must be taken to have adopted the contract
with all its incidents. It was therefore competent
to the Court to relieve against the forfeiture. Shire-
Jculi Timapa Hegda v. Mahabh/a, I. L. E. 10 Bom.
435, dissented from. Rai BalJcisTipn Dass v. Baja
Bun Bahadoor Singh, L. B. 10 I. A. 162, referred to.
Nagappa v. Venkata Rao (1900)

I. L. B. 24 Mad. 265

52. . Eeelamation — Landlord and

tenant — Lease — Coidition — Condition bindi^ig ten-
ant to reclaim la7id. — Meaning of the word "'re-
claim''''— Construction. On the 16th June, 1885,

LANDLORD AND TENANT— conW.

21. FORFEITURE— co?i<r7.

(a) Breach of Conditions — concld.

Calc. 92'), distinguished. Sristeedhar Biswas v.
Mudan Sirdar, I. L. B. 9 Calc. 648, referred to.
Nandhu Mandal v. Kartick Mandal (1905)

9 C. W. N. 56

certain marshy land adjoining the sea, comprising
about 760 acres, M^as leased by Government to the [
plaintiff in perpetuity, subject to the condition
{inter alia) that, if the whole of it was not reclaimed
{navasddhva) by the end of ten years, the lease
might be cancelled. At the end of the ten j-ears
only 83 acres of the land were actually under
cultivation. The remainder had been rendered 1
safe against the inroad of salt \vater. In March, j
1896, the Government cancelled the lease on the \
ground that the plaintiff had not brought the
Avhole of the land into cultivation. The plaintiff
thereupon instituted this suit, praying for a declara- ]
tion that the Government had no right to cancel the |
lease, and for an injunction restraining it fiom '
taking possession of the land. He contended that |
under the condition he was only bound to reclaim j
the land from the sea, and that he had done so ; and
that he was not bound to render the land fit for
cultivation, but that, if he was, he had done so as j
far as it was possible. Held, awarding the plaintiff's ;
claim, that, on the construction of the lease, the
term '" reclaim " {navisd-lhya), as used in the [
grant, meant nothing more than recovering the land !
from the dominion of the sea, and did not include i
the further obligation of rendering the land fit for
cultivation. The plaintiff, ha\nng erected the neces- |
sary embankments to shut out the sea, was entitled I
to say that he had reclaimed the land and satisfied
the terms of the grant. Shamrao Pandurang v. \
Secretary of State for India (1900) !

L L. R. 25 Bom. 32

53.

Lease tmder

transferee — Non-transferable holding, sale of — Limi-
tation Act (XV of 1877), s. 4. A tenant does not
lose his right in his holding by an unauthorised al-
ienation, if he is still on the land ; and the landlord
will not be entitled in such a case to enter upon the
land merely by reason of the unauthorised transfer,
by the tenant, who still continues in possession,
unless there is a clause for forfeiture and re-entry
in the contract by which the tenancy was created.
Dwarka Nath Misser v. Hurrish Chunder, I. L. R. 4

54, ■ Forfeiture of

lease for non-payment of rent, when period of grace
allowed for payment — Transfer of Property Act (IV
of 1882), s. 114. A Mulageni chit or permanent lease
of 1866 for building purposes provided that the
lessee should pay to the lessor a rent of R5 per
annum by the 24th May of each year ; and if any
arrears remained due, the\' should be paid \^ithin a
further period of three months or by the 24th August
and if not so paid, the Mulageni chit to stand can-
celled. In a suit brought for cancelling the lease
and recovering the demised premises on the ground
amongst others that the rent due on the 24th May
1898 was not paid by the 24th August 1898 -.—HeU,
affirming the decree of the lower Ap[)ellate Court,
that the condition of forfeiture for non-payment was
not penal as a period of grace was allowed and
consequently no relief against forfeiture could be
given. Narayana Kamti v. Nandii Shetty, S. A.
1^0. 89 of 1990, unreported, referred to and fol-
lowed. The provisions of the Transfer of Property
Act do not apply to the lease. Even under s. 114
of the Transfer of Property Act, relief against
forfeiture is discretionary and may depend on
whether the lease allows a reasonable period of
grace. Naraina Naika v. Vasudbva Bhatta
(1905) . . . L L. R. 28 Mad. 389

55. Forfeiture — Land-
lord not showing intentioyi before suit to determine
lease on the ground of forfeiture is not entitled to
maintain suit for posse-ision. A landlord is cot
entitled to maintain a suit for possession of the lands
leased to a tenant on the ground of forfeiture under
the terms of the lease, when he does not allege or
prove that prior to bringing the suit he did any
act to show that the intended to avail himself
of the forfeiture and determine the lease. Ananda-
moyee v. Lakhi Chandra Mittra, 1. L. B. 33 Calc.
329, iollowed. Yenkatramana Bhatta w. Gunda-
RAYA (1908) . . L L. R. 31 Mad. 403

56.

(6) Denial of Title.

Denial by tenant of title of

landlord — Befusal to pay rent lohere decree is
tained for possession against landlord. As a gene-
ral rule, where a person takes land from another and
pays rent to him, he cannot deny the title of his
landlord ; but he is not precluded or estopped from
proving, when sued for rent, that that title has
expired. He is not warranted, however, in refusing
to pay rent simply on the apprehension that he may
be called on to pay the rent by a party who is said
have obtained a decree against the landlord for the
land. Even if a decree has been passed against the
person from whom the landlord derives his title, he

( 6453 )

DIGEST OF CASES.

( 6454 )

;LANDL0RD and tenant— con«(i.

21. FORFEITURE— conR

(6) Denial of Title — contd.

ifl entitled to recover his rent until the decree is put

in force. Burn & Co. v. Busho Moyee Dassee

14 W. R. 85

57. — ; •_ Non-payment of

rent — Relief against — Co-sharers — Lease from one

of several co-sharers — Denial of lessor's title

Estoppel. A person taking a lease from one of
Beveral co-sharers cannot dispute his lessor's exclu-
sive title to receive the rent or sue in ejectment.
The plaintiff sued to eject the defendant, his tenant,
fcr failure to pay rent, on the ground that such
failure operated as a forfeitiu-e under the terms of
the lease. The defendant pleaded (1) that he had
paid rent to plaintiff's co-sharer, and (2) that the
plaintiff alone could not sue without joining his co-
sharer. The Subordinate Judge disallowed both
these pleas, and passed a decree declaring the
wlaintiff entitled to eject the defendant, unless the
latter paid up all arrears of rent up to date of decree,

'together with interest and costs of suit ^^'ithin three
months. This decree was reversed b^- the District
Judge on appeal, Mho awarded possession of the
land to the plaintiff, on the ground that the defend-
ant, having in his written statement denied the
plaintiff's exclusive title, was not entitled to be
relieved against the forfeiture clause in the lease.
Held, reversing the decree of the lower Appellate
Court, that the plaintiff's alleged cause of action be-
ing, not a disclaimer or denial of his title, but merely
non-payment of rent, forfeiture for breach of such a
i covenant in the lease could be relieved against by a
I Court of Equity. Jamsedji Soeabji v. Laksh'mi-
iRAM Rajkam '. . I. L. R. 13 Bom. 323

58. _ . Assignee of

landlord. The fact of a tenant having stated in a
former suit that he had a good title as against a per-
son alleging himself to be the assignee of the original
landlord, does not constitute a forfeiture of the
tenure in favour of the landlord or warrant a suit by
the landlord for khas possession. Dookga Kripa
Roy v. Jaxoo Lathak . . 18 W. R. 465

59. Li'ihility to

■ejectmeiit. ^Vhere it is proved that one man has
been the tenant of another, it is necessary' before the
former can be ejected, to show that the tenure has in
some way c r other, come to an end, and the tenant
cannot be said to have put an end to his relation with
his landlord or denied his title if, in order to save
himself from ejectment, he, for a time, attorned to a
third person who legally put himself in the place of
landlord. Haradhun 'Mudduck t'. Dinobundhoo
MoJooMDAR . . . .25 W. R. 319

60. — Forfeiture of

tenure— Ejectment. The weight of authority of the
decisions of the High Court is in favour of the view
that when a tenant directly repudiates the relation
■of landlord and tenant and sets up an adverse title
in himself the landlord is entitled to take possession
irrespective of the period during which the tenant

LANDLORD AND TENANT— confc?.

21. FORFEITURE— cow<<f.

(b) Denial of Title — contd.

may have been in possession. Shumsher Ali v.
DoVa Bibi . . . 8 C. L. R. 150

61. ; ■ Right of land-
lord to evict on tenant's denying his title. A tenant
repudiating the title under which he entered,
becomes liable to immediate eviction at the option
of the landlord. ViSHXtr Chixtamax r. BalaJibiv
Raghuji . . . I. L. R. 12 Bom. 352

62. A, a raiyat ^\^th

right of occupancy, in a rent-suit brought ag^.inst
him by B, the pm-ohaser of an aima mehal, denied
the existence of the relationship of landlord and
tenant between himself and B, on the ground that
the lands occupied by him were not included in the
aima mehal piu-chased by B. B's rent suit having
been dismissed for failure of evidence on this point.
B afterwards brought a regular suit to evict A, and
for mesne profits. Held, that A, by denying the
title of B in the rent suit, thereby forfeited his rights
of occupancy, and became liable to eviction.

MOZHURUDDIN V. GOBIND ChUXDER NcxDI

I. L. R. 6 Gale. 436

SeeSuTTYABHAMA Dassee V. Kp.iSHXA Chuxder

Chatterjee . . . L L. R. 6 Calc. 55

6 C. L. B. 375

and IsHAN Chuxder CHATTOPAnnvA r. Shama

Churx Dutt . . . I. L. R. 10 Gale. 41

12 C. L. R. 414

63.

Bengal Tenancy

Act (VIII of 1885), s. 178— Forfeiture completed
before passing of Act. The plaintiffs, purchasers of
a mokurari jama, sued to eject the defendants on
the ground that they had in their \^Titten statement
in a former suit for rent, which had been decided
in the plaintiffs' favour, denied the plaintiffs' title
and had thereby forfeited their tenures. The denial
took place in March 1885, before the Bengal
Tenancy Act came into operation. Held,
that the forfeiture being complete before the
passing of the Act, the case was not affected
by s. 178 of that Act, and mu.st be governed by
the old law. Under the decided cases before
the Bengal Tenancy Act such a denial by a
tenant of his landlord's title created a forfeiture.
Satyahhama Dassee v. Krishna Chund r Chattt:rjee,
I. L. R. ,6 Calc. 55, and I'han Chunder ChaUopadhya
V. Shama Churn Dutt, I. L. R. 10 Calc. 41, referred
to. But semble : Since the passing of that Act, in
any case to which it applies, there cannot be any
eviction on the ground of forfeiture incurred by
denying the title of the landlord, that not being a
ground enumerated in the Act, and therefore
expressly excluded by s. 178. Debiruddi r.
Abdvtr Rahim . . L L. R. 17 Gale. 196

64.

Law

denial of title before Btngnl Tenancy Act. A denial
by the tenant of the landlord's title before the
Bengal Tenancy Act was passed would operate as a
forfeiture of the tenant's right, whether the case is

( 6455 )

DIGEST OF CASES.

6456 )

liANDIiOKD AND TENANT— cotiW.

21. FORFEITURE— con«<f.

(b) Denial op Title — contd.

governed by the Transfer of Property Act or by the
ordinary Rent Law which was in force before the
passing of the Bengal Tenancy Act. Ananda
Chandra Mondtjl v. Abeahim Soleman

4 C. W. N. 42

65.

Bengal Tenancy

Act {VIII of 1885), s. 49, cl. (b), and s. 178. The
plaintiffs sued to eject the defendant from certain
land alleging that it formed part of their holding,
and that the defendant was their sub-tenant. The
defendant denied the plaintiff's title, and set up
the title of a third person adverse to that of the
plaintiffs. The lower Appellate Court found that
the defendant was the plaintiff's tenant, and both
the lower Courts held that the defendant, by
denj-ing the title of his landlord, had foi-feited his
rights as a tenant, and was therefore hable to be
treated as a trespasser, and as such to be evicted
without notice. Held, that in all cases to which the
Bengal Tenancy Act applies there can be no eviction
on the ground of forfeiture incurred by denying the
title of the landlord, and that, it having been found
by the lower Appellate Court that the defendant was
an under-raij-at of the plaintiffs, he could not be
evicted from his holding except after notice to quit
as prescribed in s. 49, cl. (b) of the Bengal Tenancy
Act. Debiruddi v. Abdur Bahim, I. L. B. 17
Calc. 196, followed. Dhoea Kaiei v. Ram Jewan
Kaiei . . . I. L. R. 20 Calc. 101

Qg, . . Suit to recover

khas possession — Successful denial of the relation-
ship of landlord and tenant in previous rent-suits,
effect of — Forfeiture— E Mop pel. The plaintiffs,
owners of a dar-patni talukh, had sued defendant
No. 1 for the rents of 1290-97. The defendant
denied the relationship of landlord and tenant, and
the plaintiffs withdrew the suit. They brought an-
other suit for the rents of 1298-99, and were met
by the same defence ; this suit was ultimately dis-
missed on the ground that there was no relationship
of landlord and tenant between the parties. Upon
this the plaintiffs brought this suit to recover khas
possession ; here also the defendants denied the title
of the plaintiffs, and repudiated any relationship
of landlord and tenant existing betMeen them.' The
first Court decreed the plaintiffs' suit ; the lower
Appellate Court, however, on the ground that the
denial of the relationship of landlord and tenant
does not operate as a forfeiture, modified the
Munsif's decree by declaring the plaintiff's title as
landlord and holding that they were not entitled to
khas possession. Held, that the rule that a denial
of the relationship of landlord and tenant does not
entail a forfeiture does not apply where that denial
is given effect to by a decree of Com-t. It having
been found in this case that the land belonged to the
plaintiffs and it having been foimd in the previous
suit that the defendants are not their tenants, the
defendants have no right to remain upon the land.

LANDLORD AND TENANT— confei.

21. FORFEITURE— contd.

(b) Denial op Title — contd.

and the plaintiffs are entitled to khas possession.
Debiruddi V. Abdur Bahim, I. L. B. 17 Gale. 196.
distinguiihed. Nilmadhab Bose v. Anant Ram
Bagdi . . . . 2 C. W. N. 75&

67.

Suit for eject-

ment. In a suit for ejectment, where it is alleged
that the defendant has forfeited his tenure by deny-
ing his landlord's title, the forfeiture must be
strictly proved. It must be proved what the
defendant said, and the judgment in the suit in
which he is alleged to have denied the title is not
sufficient. Ahullya Debia v. Bhyrub Chunder

Patted 25 W. R. 147

68. — ' Ejectment, suit

for. To a suit brought to recover rent in 1877 the
defendant set up his lakhiraj title ; this suit was dis-
missed. In 1880, in a suit brought by the same
plaintiff to obtain khas possession of the land in
question in the former suit against the same defend-
ant and three others claiming under the same title
as himself, the defence that the land was lakhiraj
was set up by all. Held, that the case fell within
the principle of the case of Suttyabhama Dassee v.
Krishna Chunder Chatter jee, I. L. B. 6 Gale. 55,
and that the plaintiff, who had successfully proved
that he had collected rents from the predecessors
of the defendants, was entitled to evict them as
trespassers on their failure to prove their lakhiraj
title. IsHAN Chunder Chattopadhya v. Shama
Churn Dutt . . I. L. R. 10 Calc. 41 :
12 C. L. R. 414

69.

Setting up per-

manent tenure. In a suit for ejectment, where the
defendants set up a right as a permanent tenant : —
Held, that the setting up of this right was a repudia-
tion of the landlord's title for which he was liable to
immediate ejectment. Baba v. Vishvanath Joshi
I. L. R. 8 Bom. 228

70. ■ Suit for eject-
ment— Gause of action — Written statement. P and
B brought a suit for ejectment on the allegation
that their tenants had failed to come to a settlement
in respect of a certain jote, and that a notice to quit
had thereupon been served on them. The defend-
ants (tenants) in their ^vTitten statement denied
the landlords' title. The lower Courts found that
the jote belonged to the plaintiffs, and the defend-
ants had been and still were in possession of the
same as tenants ; but dismissed the suit on the
ground that the service of notice had not been
proved. Held (on second appeal), that, inasmuch
as the cause of action must be based on something
that accrued antecedent to the suit, the denial by
the defendants of their landlord's title in the ^vTitte^
statement would not entitle the plaintiffs to a decree
on the ground of forfeiture. Pbannath Shaha v.
M.ADHU Khulu . . I. L. R. 13 Calc. 96

71, Forfeiture by al-
ienation— Written statement — Cause of action. Landa

( 6457 )

DIGEST OF CASES.

( 6458 )

LANDIiORD AND TENANT— con<<Z.

21. FORFEITURE— con«cf.

(b) Denial of Title — contd.

in Malabar were demised on anubhavom tenure.
Some of them were alienated by the tenant, but
the landlord subsequently accepted rent. More
than twelve years after the alienation, the landlord
sued to eject the tenant on the ground that the
tenure was thereby forfeited. The tenant for the
first time in his written statement denied the
landlord's title. Held, that the plaintiff could
not recover in this suit on the ground of the denial
of his title in the written statement. Madavan
V. Athi Nangiyab . I. L. R. 15 Mad. 123

72. ■ — Suit for eject-
ment— Repudiation of title — Setting up different
tenure from that alleged by lawllord. The plaintiff
in 1S70 brought a suit for rent, in which the defend-
ant set up and filed a permanent howladari lease,
Mit admitted that he held at the rent alleged by the
•liaintifiF, and that suit was decreed, the Court think-
ing it unnecessary' to decide the question of the
validity of the tenure set up by the defendants. In
a suit brought after a notice to quit, which was
:ound to be invalid, to eject the defendant, and
"or a declaration that he had no such perma-
'lent howladari tenure as he alleged, the
efendant again set up the howaldari lease
mder which he admitted he had paid a
ixed rent to the plaintiff. Held, that, though
he defendant repudiated the particular holding
vhich the plaintiff attributed to him, he did not
(uestion the plaintiff's right to receive the rent and
herefore did not in any sense repudiate his land-
jrd's title. What he did amounted merely to
luestioning the right of the landlord to enhance the
?nt, which was not such a disclaimer as would result
1 law in a forfeiture of his tenure. The plaintiff
herefore \vas not entitled to eject the defendant
ithout giving him a proper notice to quit. Vivian
■ Mont, L. R. 16 Ch. 730, distinguished, on the
round that the principle on which it is based is
holly inapplica])le in Bengal. Baha v. Vishva-
ath Joshi, I. L.^R. 8 Bom. 228, dissented from
l^ALi Krishna Tagore v. Golam Ally
I I. li. R. 13 Calc. 248
, The principle laid down in Vivian v. 3Ioat, L. R.
5 Ch. D. 730, is not applicable to this country.
<^u KisHEN Tagore v. Golam Ali
I I. L. K. 13 Calc. 3

' 73. — Tenant setting

[p a permanent lease—Notice to quit—Ejectment
\iit. The plaintiff sued for possession of certain
jnd which had been demised to him by the first
:5fendant. The fourth defendant set up a previous
Jirchase from the third defendant, who, he alleged,
|as a permanent lessee from the first defendant's
ther, and he contended {iJiter alia) that his vendor
)t having been served with a notice to quit, he
'uld not be ejected. The lower Appellate Court
id that the plaintiff could sue the defendant No. 1
Jy for specific performance, and could not eject

liANDIiORDAND TENANT— cowW.
21. FOKFErrUP>E— ron/o'.
(6) Denial of Title — contd.

the former tenants \^ith or \\ithout notice. On
appeal by the plaintiff to the High Court, it was
contended for him that the defendant No. 4, having
set up a permanent lease, had denied the landlord's
title, and was not therefore entitled to any notice
to quit. Held, confirming the lower Apjiellate
Court's decree, that the plaintiff could not recover
in ejectment, without previous notice to quit. By
his statement, that his alienor (defendant No. 3) was
a permanent tenant and had not received notice to
quit, the defendant pleaded an alternative defence
he was entitled to make, and could not therefore be
regarded as having consented to the contract of
yearly tenancy (which was alleged by the plaintiff)
being treated as cancelled. Purshota]m Bapu v.
Dattateaya . . I. L. R. 10 Bom. 669
74. ■

Assertion

midgeni (permanent) tenure — Right to notice to
quit. The setting up of a mulgeni right by a tenant
is not a disclaimer of title such as disentitles him
to a notice to quit in determination of the tenure.
Unhamma Devi v. Vaikunta Hegde

I. li. R. 17 Mad. 218

75. — Bomhay Land

Revenue Code [Bom.. Act V of 1879), s. 84— Transfer
of Property Act (IV of 1882), ss. Ill and 117—
Yearly tenancy — Denial of lessor's title prior to suit
— Necessity of notice to quit. In cases not falling
under s. 117 of the Transfer of Property Act (IV of
1882), a denial of the lessor's title prior to suit is,
notwithstanding s. 84 of the Land Revenue Code
(Bombay Act V of 1879), a sufficient cause of
action to enable the lessor to recover possession
without notice to quit. The object of s. 84 of the
Land Revenue Code is to define the nature of con-
tract of tenancy ; but the landlord's right of for-
feiture arising from denial of his title is no part of
the contrdct of tenancj- but is a right which the law
implies in all cases from the relationship of landlord
and tenant. If the Legislature had intended to
exclude the right of forfeiture in cases of annual
tenancies, there would have been express provision
to that effect. Venkaji Krishna Nadkarni v.
Lakshmax Devji Kandar

I, li. R. 20 Bom. 354

76. — Permanent lease

—Transfer of Prorerty Act {IV of 1882). ss. 106,
108, and 111. A lease, notwithstanding that it is
permanent, is liable to forfeiture under the provi-
sions of the Transfer of Property Act if the tenant
denies the title of the landlord. Leases which are
permanent and which came into existence before the
passing of the Tran;-fer of Property Act are governed
by the general rule that a tenant who impugns his
landlord's title renders his lease liable to forfeiture,
which rule is only a particular application of the
general principle of law that a man cannot appro-
bate and reprobate. Kally Dass Ahiri v. M<:>n-
MOHiNi Dassee . . I. li. R. 24 Calc. 440

1 C. W. N. 321

( 6459 )

DIGEST OF CASES.

( 6460 )

LANDLORD AND TEN AlifT—contd.
21. FORFEITURE— contd.

77.

(6) Deniai, OS Title — contd.

Denying land-

lord's title, or parting with holding — Bengal Tenancy
Act (VIII of 18S5), s. 44— Grounds of forfeiture.
Parting with possession of a holding or denying the
title of the person under whom a non-occupancy
raiyat holds is not a ground of forfeiture, and a non-
occupttnoy-raiyat cannot be ejected except on the
grounds enumerated in s. 44 oi the Bengal Tenancy
Act. Chandra Mohun Mookhopadhaya v. Bts-
SESSWAE ChattebIJee . .10. W. N". 158

See DuRGA. Pros AD Sen v. Doui.a Gazee

1 O. W. N. 160

78. ■ Transfer of

Property Act (IV of 18S2), s. 2 (h) and (c) and
ss. 10.5', 111 (g) — Maurasi-mokurari tenure. A
lesser brought a suit for ejectment of the lessee
for denying his title and asserting title in herself.
The defendant in the Court below denied having
renounced the title and pleaded that a maurasi-
mokurari tenure was not subject to forfeiture. The
lower Court gave a decree for the plaintiff. The
defendant appealed against the decree. Held, that
the defendant having denied her landlord's title,
and a maurasi-mokurari lease being only a lease in
perpetuity as defined in s. 105 of the Transfer
of Property Act, and not a conveyance in fee,
it is subject to forfeiture by renunciation of the
lessor's title under s. Ill [g). S. 2 (6) and (c)
do not apply, as even before the Transfer of Pro-
perty Act such a lease under similar circumstancea
would have been liable to forfeiture under the
o-eneral law. Monmohini Dassi v. Kali Das
Ahibi .... 20.W.M". 292

79. — Plea of sale ly

landlord to his tenant — Suit for possession by land-
lord before Mamlatdar. In a possessory suit
before a Mamlatdar, though it is not competent to a
tenant to deny bis landlord's title at the date of
his lease, it is open to him to show that it has
since determined, e.g., by sale to him by the land-
lord, in which case the tenant no longer holds
under a title derived from the landlord. Vedtt v.
NiT-KANTH . . . I. L. B. 22 Bom. 428

80. — — — ■ • Bengal Tenancy

Act (VIII of 1885)— Bengal Act VIII of 1869— Suit
for ejectment — Forfeiture — Denial by tenant of
landlord's title — Denial in written statement. In a
district where the relations of landlord and tenant
are regulated by the provisions of Bengal Act VIII
of 1869, a tenant denying his landlord's title for-
feits his tenancy, and entitles the landlord to a
decree for ejectment, provided there has been an
express denial of title prior to the institution of the
suit. A denial, however, in the written statement
would not operate as a forfeiture. Prannath Shaha
V. Madhu Khnlv, I. L. R. 13 Calc. 96, followed.

NiZAMUDDIN V. MaMTAZUDDIN (1900)

I. L. R. 28 Calc, 135
s.c. 5 C. W. N. 263

LANDLORD AND TENANT— contd.

21. FORFEITURE-^OTitd.

(6) Denial o» Title — contd.

81. Denial by tena',

of landlord's title — Option on part of landlord to di
termine tenancy — Limitation Act (XV of 1877
Sch. II, Art. 139 — Period of limitation as fro;
determination of tenancy by landlord. The defenc
ants in a suit for ejectment occupied land of whic
their predecessor in title had acquired possessio
under a deed which had been executed in 1836, an
which created a tenancy from year to year in favoi
of that predecessor in title. That lease had bee
executed by the leading mirasidars of the villag
In 1871, defendants had, to the knowledge (
plaintiff, set up a right of permanent occupancy i
the lands in question, thereby repudiating the
landlord's title. In 1894, plaintiff gave defendan
notice to give up possession of the lands, but unt
that time had not evinced any intention to dete
mine the lease. In 1895, plaintiff, on behalf <
himself and the other villagers, brought this si
for ejectment. On its being contended that tl
suit was barred by limitation, inasmuch as ifw)
brought more than twelve years after the repudi;
tion of the tenancy by defendants : — Held, that tl
suit was not barred by limitation. A tenant r
pudiating the title under which he entered becom'
liable to immediate eviction, at the option of tl
landlord ; but, until the landlord indicates that 1
intends to exercise his option, the tenancy subsist
This principle applies to tenancies from year to yea
Sriitivasa Ayyar v. Muthusami Pillai (1900)
I. L. E. 24 Mad. 24

82.

Bengal Tenam

Act (VIII of 1885)— Denial of landlord's tiii
Where, in a suit for rent, defendant denied plaintiff
title, and the suit failed, and subsequently plainti
sued to eject the defendant on the ground of deni
of landlord's title : — Held, that the rule that deni
of landlord's title does not work as a forfeiture d
not apply, and plaintiff was entitled to a decree f'
khas possession. Also that the defendant w-
estopped by a matter of record from pleading th:
he was plaintiff's tenant. Fayj Dhai.i v. Apt.
BUDDiN Sirdar (1902) . 6 C. "W. N. S'J

83.

Estoppel— D

nial of kabuliyat — Pleading. The rule that
tenant is estopped from denying the title of h
landlord applies only to the title of the landlord vl
lets the tenant in. If the tenant did not obta:
possession from a person who was recognised :
landlord, either by express agreement, or 1
attornment, or by formal acknowledgment 1
payment of rent, he ma^' always show that b
conduct was due to mistake or ignorance of fac
relating to title, misrepresentation or fraud. Gr
gory v. Doidge, 3 Bing. 474, relied upon. \Vher
in a suit for rent, the tenant denied the ex.
cution of the kabuliyat propounded by the plain
iffs, pleaded that it was forged, and denied paymei
of rent under it to the plaintiff.s, and failed 1

( 6461 )

DIGEST OF CASES.

( 6462 )

LANDLORD AND TENANT— cc/^W.

21. FORFEITURE— cowcW.

(6) Denial of Title — conchl.

establish bis jjleas : — Held, that the tenant was not
entitled to pro\e that the plaintiffs were not his
landlords, although he had not been inducted into
the land by the plaintiffs. Protap Chandni Roy
Choifdjy V. Jogend a Cha7id:a Ghosh, 4 C. L. R.
16S, followed. Lai Mnliomed v. Kallunus, I. L. R.
11 Calc. 519, explained. Kktu Das v. Suren-
dh.vNath SiHNA (1903) . 7C. W.N. 596

84. Ejectment, suit

for — Setvice-ienvre — Denial of landlord's title —
Notice to quit — Determination of lease — Transfer of
Property Act {IV of 1SS2), ss. 106, Ill—Bengal Ten-
ancy Act ( VIII of 18S5), ss. 155, ISl. A lessee of a
service-tenure incurs a forfeiture of his tenancy by
denial of the landlord's title ; and the landlord in
a suit for ejectment would be entitled to recover
judgment, if he did, bj' some act or other, declare
his intention to determine the lease antecedent to
the institution of the suit, notice to quit in such a
case not being obviously necessary ; otherwise the
suit should be dismissed. Such a case falls within
the Transfer of Propertj- Act, and not under the
Bengal Tenancy Act. Haidri Begam v. Nathu,
I. L. R. 17 All. 45, and Ansar Ali Jemadar v. C. E.
Qrey, 2 C. L. J. 403, referred to. Anandajioyee
V. Lakhi Chandka Mitba (1906)

I. L. E. 33 Calc. 339

85. Landlord and

tenant — Disclaimer — Forfeiture. There was no dis-
claimer by B of the relationship of landlord and
tenant with A such as would cause a forfeiture of
tenancy, when B did not deny that he held the land
as a tenant although he denied A's title to the
interest of the landlord, ^'6- case being that he
acquired the landlord's interest at certain rent sales.
Jones V. Mills, 10 C. B. N. S. 788, 796 ; Williams
V. Cooper, 1 M. d: G. 135 ; Grey v. Stanion,
1 M. (k G. 695, referred to. Mathewson v. Jadtj
Mahto (1908) . . . 12 C. W. N. 525

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE.

■ 1. Verbal • relinquishment —

Sufficiency of relinquishment. The mere use of the
words " "S(^r^ i%t^ ■^'^ " in conversation by the
tenant, when called upon by the zamindar to pay in-
creased rent, were J, eld to be insufficient to consti-
tute a relinquishment where there was no acceptance
of the same and not even a \erbal notice to quit, or
to justify the zamindar in letting the tenure to
another. Bonomalee Ghose v. DeluSied-^k

24 W. R. 118

2. Cultivating raiyat leaving

land yxncMltiYa.ted—Reli)iquishme?it of land-
Verbal lelinquishtnent. When a cultivating raiyat
goes away from the land Mhich he has occupied and
neither cultivates nor paya rent for it he has wholly

LANDLORD AND TENANT^wKrf.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— confei.

relinquished the land. The relinquishment need not
be in WTiting. Muneebuddeen v. Mahomed Ali

6 W. R. 67

3. r — Rdivquishment

of tenure. When a raiyat, without giving any
notice, goes away from the land he hasoccupie<I, and
neither cultivates it nor pays rent, the landlord is
justified in assuming that he has relinquished it ;
and the raiyat has no right to ask to be reinstated in
possession on the ground that he has never for-
mally relinquished the land. Ram Chuxg v. Gora
Chand Chung . . . 24 W. R. 344

Determination of

tenure. Plaintiff, a

tenancy — Aiandonment of

mirasidar, purchased certain land in 1850 which he
allowed to lie waste from 1853. In ISfil), on the ap-
plication of the first defendant who was also a mira-
sidar to the second defendant, the local Revenue-
authority, the land was granted to the first defend-
ant and made over to his possession. Plaintiff was
admittedly in arrears of kist. In a suit by plaintiff
to recover the land, it was contended that non-culti-
vation and non-payment of rent for a considerable
time warranted the Revenue authorities in entering
upon and disposing of the land. Held, in special
appeal, that plaintiff's tenancy could only be de-
termined by his resignation or abandonment of his
holding, or by the procedure laid down in Act II of
1864 ; that the letting land lie fallow does not neces-
sarily lead to the inference of abandonment ; and
that in the present case plaintiff, not being found to
have abandoned the land, had been ejected in a
manner which the law does not recognize. Special
Appeal No. 139 of is58. Mad. S. D. A. {l^of/) 21 :
s.c. 482 of 1^60, Mad. S. D. A (1S61) 112;
Genju Reddi v. Assal Rfddi. 1 Mad. 12 ; Kumnradeva
Mudali V. Nallatambi Reddi, 1 Mad. 407 ; and
Samumathaiyan v. Samviathayian, 4 Mad.
153, considered. Rajagopala Ayyaxgar v.
Collector of Chingleput. . . 7 Mad. 98

Surrender

tenancy. Mere non-occupation and non-cultivation
were held not to amount to a surrender of the
tenancy so as to get rid of liability to pay the rent :
nor does the denial by the defendant in a former suit
that he occupied the land amount to a notice of
surrender. Bai.aji Sitaram Naik Salgavkar v.
Bhikaji Soyare Prabhu Kanolekab

I. L. R. 8 Bom. 164

Venkatesh N^vrayan Pal v. Krishxaji Arjix
I. L. R. 8 Bom. 160

6. Non-cultivation of portion

of jote — Relinquishment. The non-cultivation of a
small portion of an ancestral jote by the admitted
holders for one j^ear owing to their minority does not
amount to reUnquishment as laid down in Munee-
ruddeen v. Mahomed Ali, 6 W. R. 'n. Radha
Madhub Pal v. Kalee Churn P.a.

18 W. R. 41

( 6463 )

DIGEST OF CASES.

( 6464 )

LANDLORD AND TEN ANT— contd.
22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— co«<(^.

7. Abandonment of portion of

jote — Liability for rent of entire jote. As long
as a raiyat retains possession of any portion of his
jote, he is liable for the rent of the whole. Saroda
SooNDUEEE Debee V. IIazee Mahomed Mttndul

5 W. R.. Act. X, 78

8. Abandonment of share of

holding — Separated member of Hindu family.
Where a separation takes place in a joint Hindu
family, and one member becomes the owner of a
khas share, being a portion of land with a house,
which (after living in it for some time) he eventually
abandons, the zamindar is entitled to deal with it in
the same way as he is entitled by law to deal with
the abandoned holding of a cultivating raiyat.
Lalla Nukched Laxl v. Futteh Bahadoor
Lall . . . . . 24 W. R. 39

9. Voluntary abandonment of

permanent tenure — Express relinquish^nent
— Determination of tenancy. A voluntary abandon-
ment of a permanent and transferable tenure for a
long period, v/ithout any inevitable force, merger or
other cause beyond the power of the holder, is tanta-
mount to an express relinquishment. If a man so
abandon his holding for years, neither he, nor any
one under him, can reclaim it. Chundermonee
Nya Bhoosuk v. Sfmbhoo Chunder Chucker-
BUTTY . . . . W. R. 1864, 270

Shoodan Kurmakar v. Ram Churn Pax

2 W. R. 137

10. Non-payment of rent with

loss of possession. Non-payment of rent, cou-
pled with the fact that the plaintiff was for five
years out of possession, was lieJd to amount to a
relinquishment of land. Nuddeae Chand Poddar
V. MoDHOosooDUN Dey Poddar . 7 W. R. 153

11. Non-payment of rent for

some years — Claim to eject tenant put in by land-
lord after relinquishment. In a suit for ejectment
it appeared that the plaintiff had purchased the
house which stood upon the plot in dispute thirteen
years prior to the institution of the suit ; that he
had occupied it for four years and then left the
district for business purposes, paying no rent for the
seven or eight years of his absence, during which
the zamindar put the defendant in possession and
took rent from him. Held, that, even if the plaint-
iff had a right when he went away to occupy he
land if he chose to do so, as he did not do so, he had
no right on his return to eject the defendant.

MtlTTY SOONUR V. GtJNDUR SOONUR

20 W. R. 129

12. Desertion of land and house

by tenant — Right of hmr/l rd to tnkr possession.
When the house had fallen to the ground and
the land been deserted by the tenant, the zamindar
was held justified in taking possession of the land
asl^abandoned. Badam v. Michel . 1 Agra 266

BuKNOo Bebee v. Shed Buns Kando

3 Agra Rev. 9

LANDLORD AND TENANT— con<;/.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— co?i<i.

13. Land left vacant by ten-
ant— Zamindar'' s right to possession. A zamindar
who without unlawful means enters upon the land
after the raiyat 's tenancy is at an end, and takes
possession, cannot be sued for illegal ejectment.
Mahmood Ali Khan v. Gunga Ram

3 Agra 304

14.

Desertion by one of two

tenants — Relinquishment by the other — Lease
landlord — Right of deserter to claim land subse-
quently. One of the two proprietors of a jote having
deserted the land, the other proprietor, while osten-
sibly in possession of the entire jote, relinquished it
to the landlord, who let it to the defendants. Some
years after such relinquishment, the plaintiff, who
claimed to have purchased the right of the proprietor
who had relinquished, sued to eject the defendant on
the ground that the relinquishment was not valid.
Held, that, whether or not the relinquishment was in
fact valid, the landlord was under the circumstances
entitled to induct another tenant on the land, and
that the plaintiff could not eject the defendant. See
Ishen Chunder Mowltek v. Poorno Chunder Chatter-
jee, 3 W. R. lo3, and Manirullah v. Ramzan Ali, 1
C. L. R. 203. Boidonath Maji Koyeurto v.
AuPURNA Dabee . . . 10 C. L. R. 15

15. Condition for liability for

rent until express surrender — Lessor and
lessee — Kdbuliat — Suit for rent — Notice of sur-
render— Surrender of the land by tenant. The
plaintiff was a mortgagee of certain land, and sued
the defendant for the rent thereof for the three
years 187 1, 1872, and 1873. He alleged that in
1866 the defendant had passed to him a kabuhat for
one year ; that the defendant did not vacate the
land on the expiry of his term ; that he (plaintiff)
had sued him in 1868 and 1870 for rent, and obtained
decrees against him ; that the defendant had not
yet surrendered the land, and had not paid the rent,
and hence the present suit. The defendant an-
swered that he had not occupied the land during the
years in dispute, and that it had been in the posses-
sion of the owner (the mortgagor). The Subor-
dinate Judge awarded the plaintiff's claim ; but
the District Judge in appeal rejected it, holding I liat
the plaintiff had failed to prove that the defendant
had occupied the land during the three years in
dispute, and that the defendant's conduct in the
former suits was ample notice to the plaintiff that
he (defendant) had surrendered the land. On
appeal to the High Court : — Held, that the result
of the former suits was to establish the fact that
the defendant's tenancy or liability as a tenant
had continued until the end of the cultivating year
1870. By the terms of the lease the defendant was
liable until he restored the property to the lessor.
He had therefore to show, as against the plaintiff 'gf
claim for rent, that he (defendant) had terminated
the tenancy by some intimation to the lessor
(plaintiff) and put him in the way of acting on it

( 6465 )

DIGEST OF CASES.

LANDLOBD AND TENANT— contd.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— co«<rf.

by a re-entry on the premises. The High Court
accordingly, finding that there was no evidence in
the case either of notice given to tlie jjlaintiii or of
an opportunity afforded to him of resuming pos-
session of the land renia:ided the cat-e for tlie deter-
mination of that question observing tliat, if such
notice were given and such opportunity afforded,
the plaintiff could not legally claim rent after the
end of the cultivating year. Venkatesh Naea-
YAN Pai v. Krishnaji Arjun

I. L. E. 8 Bom. 160

16.

Omission to make express

surrender — Notice of surrender of land by tenant
— Splitting up of the cause of action — Son^ s liability
on the father's contract of tenancy. On the 22nd
April 1848, one A mortgaged certam land to the
plaintiff. S (the father of B, the drfendant), who
was then tenant in possession of the land, attorned
to the mortgagee (plaintiff) by a kabuliat, dated the
1st June 1848. S died in 1870 in possession as
tenant. In 1877 the plaintiff sued the defendant B
as heir of 8 for three years' rent from 1871-72 to
1873-74. The defendant answered that he had had
no possession or occupation of the land since the
death of his father in 1870. It was decided in that
suit that the defendant had occupied the land up to
1874, and a decree was made against him for the rent
claimed. In July 1878 the plaintiff brought the
present suit for rent for the subsequent three years,
viz., from 1875-76 to 1877-78. The defendant
answered that he had given up the laud in 1871-72.
He did not assert, either in the former or in the
present suit, that he had given notice to the plaint-
iff of his intention to terminate his tenancy
by surrendering the land to the defendant, nor
did he allege that the plaintiff" had assented to
a surrender of it by the defendant without such
notice. The lower Courts found the kabuliat
proved, but threw out the plaintiff's claim on the
ground that he failed to prove the defendant's
occupation of the land during the three years
for which rent was claimed. In the second appeal
it was contended for the plaintiff that the
tenancy continued until the mortgage was paid off.
Hdd, that S became a yearly tenant of the plaintiff'
under the kabuliat, but that he was not bound to
continue his tenancy until the mortgage was paid
off. Held, also, that neither the plainfiff nor S as
yearly tenant could, without the consent of the
other, terminate the tenancy without six months'
notice ending with the cultivating year (30th June).
Held, further, that the defendant, as the son and
heir of S, was responsible on his father's contract of
yearly tenancy, so far as he (defendant) had assets of
hia father, and in order to free those assets from a
continuing liabiUty under that contract he was
bound to give a six months' notice of surrender to
the plaintiff. The mere denial by the defendant in
the former and present suit, that he had ever
occupied the land, could not operate as such notice
and his non-occupation or non-cultivation alone

VOL in.

LANDLORD AND TENANT— con<<i.

22. ABANDONMENT, RELINQUISHMENT, OR

SURRENDER OF TENURE— <;on<d.
could not relieve him from his liability to pay the
annual rent to the mortgagee (plaintiff), unless the
latter assented to a surrender or abandonment of
the land by the defendant. Held, also, that the
right of the plaintiff to the rent for the year 1875-76
dejiended upon whether he might have included
it in the former suit. The High Court reversed the
decrees of the Courts below, and made a decree for
the plaintiff for the rent for 1876-77 and 1877-78.
Venkatesh Narayan Pai v. Krishnaji Arjun, 1. L. R.
8 Bom. 160, referred to and followed. Balaji
Sitabam Naik Salgavkar v. Bhikaji Soyare
Prabhx: Kanolekar . I. L, B, 8 Bom. 164

17. Relinquishment by some

of lessees — Joint lease. Where a joint lease was
given to many persons, with an entirety and
equality of interest among the tenants, the resigna-
tion of some of the joint lessees does not necessarily
operate to void the lease. Mohima Chtjnder 8ein
V. Petambur Shaha . . . 9 W. R. 147

18.^ Relinquishment by manager

for joint family— Jojh^ lease. Where a member
of a joint family is registered as jotedar in a zamin-
dar's serishta, not as for liimself only, but as
manager for the familj-, his relinquishment of the
jote is not sufficient in law to authorize the zamin-
dar to make arrangements with any others he
pleases. Bykunt Nath Doss v. Bissonath
Majhee . . . . 9 W. E. 268

19. - Relinquishment, effect of—

Liability for rent. The mere fact of a tenant relin-
quishing the land will not excuse him from payment
of rent if he is otherwise l.able; unless he makes
some terms with his landlord. Mahomed Azmut
V. Chundee Lall Pandey . . 7 "W. E. 250

20. Liability for

rent. Where land relinquished by the original
tenant is settled by the zamindar with other raiyats,
the former raiyat cannot be held liable for rent, even
though his rehnquishment was not accompanied by
notice given in writing. Mahomed Ghasee v.
Shunker Lall . . . 11 W. E. 53

21 ________ Eelinquishment by tenant

having a right of occupancy. Ordinarily
tenants having a right of occupancy ma 3-, on the
expiry of any agricultural year, relinquish their
holdings by giving the landlord due notice ; and the
determ'ination of the tenure of the tenant, whether
by forfeiture or relinquishment, will put an end to
the tenure of the shikmi holding under the tenant.
The relinquishment of the holding will ordinarily
put an end to the sub-tenures, provided such relin-
quishment be accepted by the landlord in good faith.
Where the landlord procures the relinquishment of
the holding to defeat the under-leases, he should be
heJd bound by such under-leases, although custom
may not authorize the tenant to grant leases to enuie
beyond the duration of his own interest. Hoolaseb
Ram v. Pursotum Lal

3 N. W. 63 : Agra F. B. Ed. 1874/250

9 U

( 6467 )

DIGEST OF CASES.

LANDLORD AND TENANT— con«(^.

22. ABVNDONMEN'r, RELINQUISHMENT, OR
SURRENDER OF T ENURE— co«.<i.

22. Surrender to landlord,

effect of, on under-tenant. When a tenant
who holds land for a term with consent of the land-
lord underlets that land, he parts with liis own
interest therein to the extent of the interest created
by the under-lease, and cannot therefore determine
the interest of his under-tenant by surrendering his
own term to the landlord. Heeramonee v. Gunga-
NARAiN Roy . . . .10 W. R. 384

23. — Surrender to

landlord, effect of, on under-tenant. Where a
lessor gives his lessee power to sublet, and the latter
sublets, the sub-lessee obtains rights against both of
which he cannot be deprived without his own con-
sent. The lessee's surrender of his lease cannot
operate to the jirejudice of the sub-lessee. Neha-
LOONissA V. Dhunnoo Lall Chowdry

13 W. R. 281

24. Relinquishment of moku -

raridar — Mokurari tenure. When a mokurari-
dar resigns his tenure, the dar-mokuraris created
bv bini come to an end, but the position of
raiyats holding rights of occupancy is not affected
by the extinction of either the tenure or the under-
tenures. Koylash Chunder Biswas v. Bisse-

STTBEE DOSSEE . . . 10 W. R. 408

25. - Ejeetment of an under-

T&iyeit —Bengal Tenanci/ Act {VIII of lSS-5), ss.
44, V-5, 86, els. (5) and (6) — Surrender by a raiyat

J^otice to quit if necessary. Where a raiyat sur- \

renders his holding, the landlord is entitled to
re-enter by ejecting the under-raiyat if he is not
protected by s. 85 or 86, cl. (6). In such a case
no notice to quit is necessary. Nilkanta Chaki v.
Ghatoo Sheikh . . . 4 C. W. N. 667

26. Relinquishment of pur-
chaser from whom tenant holds. The rights
of a tenant cannot be destroyed by the relinquish-
ment of rights by the purchaser from a pattidar
from whom the tenant held by pottah. Before the
tenant can be ousted, it must be ascertained whether
he holds under a legal title and one which gives him
a right of occupancy. Chutter Dharee Singh v.
JuTTA Singh . . . 4 W. R. 76

27. Mirasidar. A mirasidar does
not lose his mirasi rights by relinquishing" his
pottah. Subbaraya Mxjdali v. Collector of
Chingleput . . I. L. R. 6 Mad. 303

28. Inability to surrender to

landlord — Mortgage with landlord's consent. A
tenant who, with the imphed consent of his landlord,
has mortgaged his holding, cannot resign itfto the
landlord. He may resign to him the equity of
redemption. But till the mortgage has been
redeemed, the mortgagee is entitled to retain pos-
eession. Sheoumbur Rai v. SnEOBHrNG Rai

1 N. W. 45 : Ed. 1873, 41

20. Holder of survey field—

Consent of heirs. There is no precedent for ruling

LANDLORD AND TENANT— conii.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— con<d.

that the holder of a survey field is incompetent
to resign it without the consent of his heirs .
Davalata bin Bhujanga v. Beru bin Yadoji

4 Bom. A. C. 197

30.

Patnidar — Refusal to pay

rent. It is not open to a patnidar of his own
choice to throw up the patni, and by so doing
escape his liability to pay rent. The contract,
though not indissoluble, can only be dissolved by an
act of the Court, and as the result of proper enquiry.
Heera Lall Pal v. Neel Monee Pal

20 W. R. 383

31. Dar-mirasi mokurari ten-
ure—iVo^Jce o/ relinquishment — Surrender of lease.
A teniu-e under a dar-mirasi mokurari lease of
land, which is not let for agricultural purposes,
cannot be put an end to by a mere relinquish-
ment on the part of the lessee, although after
notice to the landlord. Per Field, J. — ^The
principle laid down in the case of Heera Lai Pal
V. Neel Monee Pal, 20 W. R. 383, where it was
Ae'cZ that a patnidar cannot, of his own option,
relinquish his tenure, is applicable of all inter-
mediate tenures between the zamindar and the
cultivator of the soil, except those held on farming
leases. Judoonath Ghose v. Schoene, Kilburn
& Co. ."^I. L. R. 9 Gale. 971 : 12 C. L. R. 343

32. Ex-proprietary tenant—

Relinquishment of ex-proprictini rights — Act XII
of 1881 (N,- W. P. Rent Act), ss. .9, 31. Held, by the
Full Bench, that an ex-proprietary tenant is not
competent to relinquish his holding to his landlord
by private arrangement. Per Petheram, C.J. —
S. 31 of the N.-W. P. Rent Act (XII of 1881) was
enacted absolutely i i the interests of the cultivate",
and provides in effect that, although the occupancy-
tenant may not be turned out and may not transfer
his rights, he is, not to be regarded as bound to his
holding, that he may relinquish it, and that, in that
case, he is not liable for rent ; but this provision
must not be taking advantage of by letting the
zamindar buy the holding, and thus introducing a
new cultivator, contrary to the prohibition contain-
ed in s. 9. Indar Sen v. Nattbat Singh

I. L, R. 7 All. 847

1 33. N.-W. P. Rent

Act (XII of 1881), ss. 9, 31— Relinquishment of ex-
proprietary rights. Thjughan ex-propri^tary ten-
ant cannot transfer his rights as such for a consider-
ation, there is nothing to prevent his voluntarily
relinquishing those rights. Gaya Singh v. Udit
Singh . . . . I. L. R. 13 AIL 396

34. Surrender by abandon-

nxent— Madras Rent Recovery Act (Mad. Act
VIII of 186.5), s. 12. In a suit to recover possession
of certain land comprised in an unexpired _ lease
granted to the plaintiff bv the first defendant it was
pleaded that the plaintiif had left the land waste,
and had refused to pay rent or give a -RTitten relin-

( 6469 )

DIGEST OF CASES.

( 6470 )

XANDLORD AND TENANT— con<d.

22. ABANDONMENT, RELINQUISHJIENT, OR
SURRENDER OF TENURE— confd.

quishment of the land, and that the first defendant
had accordingly let it to the second defendant.
Held, that, although the defence did not disclose a
surrender by the plaintiff, recorded as prescribed in
the Rent Recovery Act, s. 12, yet inasmuch as a sur-
render is not necessaril}'' invalid because it has not
been so recorded, and an oral relinquishment fol-
lowed by abandonment of the land is not inopera-
tive as a surrender under s. 12 of that Act, the Coiu-t
should determine the issue whether there had been
a surrender by the plaintiff. Narasimma v. Lak-
SHJtANA . . . I. L. R. 13 Mad. 124

35.

Mulgeni 'holding— Madras

Rent Recovery Act (Mad. Act VIII of 1SG6), s. 12-
Riyht of tenant to relinquish his lease. It is not
•competent to a mulgeni tenant in South Canara
to relinquish his lease and free himself from his
■obUgation for rent without the consent of the
landlord. Krishxa i\ Lakshminaranappa

I. L. R. 15 Mad. 67

36.

Surrender of lease— Perpe-

tual lease. The karnavau of a Malabar kovilagom
executed a kuikanom lease of certain land, the jenm
of the kovilagom, in 1846, and in 1861 his successor
demised the same land to the same tenants in perpe-
tuity. The present karnavan sued in 1889 to recover
possession of the land. Held, that the perpetual
lease as being of an improvident chai-acter was ultra
vires and void ; and that the original lease was not
surrendered b}' the acceptance of the subsequent
lease. Ramuxni v. Kerala Vxkmx Valia Raja
I. li. R. 15 Mad. 166
37. Tenant remaining in oc-
cupation after passing a rajinama— 5o//t6a,i/
Laiid Revenue Act V of 1S79, s. 74— Effect of the
rajinama — Construction — Practice— Ejectment suit
by owner of ''inter esse termini.'" The first and
second defendants were sub-tenants of the third
defendant who had certain land which was part of
the inam village of D. In 1883, the third defendant
executed a rajinama in the following terms which he
gave to the receiver who had been appointed by the
Court to manage the viUige : " Up to the present
time my father and I have been cultivating the land
but the land belongs to the inamdars. I have no
title over it, and the iuamdar can gi/e it for culti-
vation to any one he pleases." Shortly after the
date of this rajinama, the inamdar gave the land to
the plaintiff, who now sued to obtain it from the
defendants, who had remained in possession. Held,
that the plaintiff was entitled to the land. The
rajinama operated as a relinquishment of the
tenancy by defendant No. 3 under s. 74 of Bombay
Act V of 1879. Held, also, that the plaintiff was
■eutitbd to sue in ejectment, although he had not
been put in possession of the land. Bhutia
Dhondu v. Ambo . . I. L, R. 13 Bom. 294

^: Relinquishment of pos-
session—Proo/ of reconveyance— Receipt of con-

LANDLORD AND TENANT— confcfl"

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE—contd.

sideration. The mokuraridar havinc; granted a dar-
mokurari lease of part of his holding, which was
afterwards surrendered for good consideration, ikrar-
namas to thii effect were executed, but not being
registerel were not receivable in evidence. Held,
that to prove a formal deed of reconveyance was not
necessary, the receipt of the money and the relin -
quishment of possession sufficiently showing what
had become of the dar-mokurari interest. Imaji-

BANDI BeUUM v. KaMLESW.A.RI PEPvi^HAD

I. L. R. 14 Calc. 109
L. R. 13 I. A. 160

39. SuflB.ciency of notice of

relinquishment of land by tena,nt— I naindar
—Land Revenue Cole {Bom. Act V of 1879) s. 74
— Remedy of lamJlord lohen vacant possession not
given— Damnrje,s. On the 20th March 1893, the
defendants, who held seven fields as tenants of the
plaintiff, the inamdar of the village of Kaneri, gave
him notice of relinquishment of six of them. The
notice stated that these six fields were no longer in
their possession, and that they would not be respon-
sible for the assessment. The plaintiff notwith-
standing brought this suit to recover assessment for
the year 1893-94. The Suborlinate Judge held that
the defendants continued to be tenants of the fields
in question and were liable to the assessment on the
ground that the notice of relinquishment did not
purport to give vacant possession to the plaintiff.
He thereupon passed a decree for the plaintiff. On
appeal the Di-strict Judge reversed the decree, hold-
ing that the notice was a conditional relinquishment
which terminated the tenancJ^ On appeal to the
High Court:— i^sM (confirming the decree of the
lower Appellate Court), that the defendants were
not h able to the assessment. S.74of the Bombay
Land Revenue Code (Bombay Act V of 1879) only
declares the customary common law on the subject
of relinquishment of tenancy. A notice of relin-
quishment is not invalid because it does not purport
to give and does not in fact give vacant possession
to the inamdar. The result is the same, whether
the fact that the possession is not vacant appears
on the face of the notice or is shown otherwise. A
tenant giving up demised land to his landlord is
bound to give him vacant possession. The result,
however, of his not doing so is not to continue the
tenancy but to create a claim for damages on the
part of the landlord. The tenant is liable in damages
to the extent of the loss of rent which the landlord
sastains during the actual period for which he is
kept out of possession and the expenses he is put to
in recovering possession of the 1 md. Baliaramairi
Ramchandragibi r. Vasudev Mop.eshvar Niphad-
KAR . . :-*'. I. L. R. 22 Bom. 348

40. _— ^-—'Construction of a contract
in a pottah allowing relinquishment of the
land leased, in whole or in part. A pottah
granted a permanent mokurari lease for mining
purposes, and gavejto the tenant the privilege of

9 T72

( 6471 )

DIGEST OF CASES.

( 6472 )

LANDIiOED AND T'ENAl^T—contd.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— conicZ.

siirrendering either the whole or part of the land
included in the lease, with a deduction to be made in
the rent for the extent of the land that might be
found on measurement to have been surrendered.
Held, that this piivilege could only be exercised by
the tenant upon a strict observance of the conditions
expressly declared, or plainly implied, in the lease
itself. The lease was of 1,974 bighas. The tenant
executed a deed of relinquishment of 1,409 bighas 8
cottahs 9 gundas, whereof possession Mas surren-
dered with the exception of two plots, one of 24 and
the other of 9 bighas. Held, that, according to
the true construction of the contract, there M'as
error in the jvidgment of the High Court which
decided that the retention of the plots did rot
altogether deprive the relinquishment of its effect.
This retention did more than lessen the area actu-
ally surrendered. It was a mistake to suppose that
an increased rent to be paid by the relinquishing
tenant in proportion to the areas retained and sur-
rendered, respectively, would adjust the point
disputed as a matter of law. The contract was that,
in case the tenant surrendered a part, the futm-e
rent was to be ascertained by the measurement of
the area relinquished. To ha\'e made a new sur-
render would have been within the competeuc}' of
the tenant. But for the tenant to continue to hold
possession of part of the area which he had purport-
ed to relinquish was not open to him or consistent
with the validity of the surrender, the contract not
admitting of approximate equivalents in regard to
the possession of the total area professed to be
surrender, but not surrendered. Therefore the
surrender upon which rested the defence to a suit
by the lessor for the full rent was invalid in la\^.
Ramchcrn Sikgh v. Raniganj Coal Association
I. L. R. 26 Cale. 29
L, R. 25 I. A. 210
2 C. W. N. 697

41. Abandonment of holding

^Bengal Tenancy Act {VIII of 1885), s. 87—
Transftr of holding hy a raiyat — Notice. In a case
in which a raiyat transfers his holding and makes
over piossession to some one else, it is not the notice
under s. 87 of the Bengal Tenancy Act which termi-
nates the tenancy, but the voluntary abandonment
coupled with acts on the part of the landlord (not
necessarily limited to the giving of notice) indicating
that he considered the tenancy at an end, and it
would be for the Court in each case to determine
whether the tenancy had terminated. Lal Mamvv
IVlANDAL V. Abdullah Sheikh 1 C. W. N. 198

42. Bengal Ten-
ancy Act {VIII of 1885), s. 87~Tranifer of non-
transferahle occupancy holding—Forfeiture— Eject-
ment—Notice. Where the non-transfera bJe occu-
pancy holding of plaintiff's tenant was purchas'^d
by defendant Ko. 1 at a sale in execution of a decree
for money and the latter obtained possession of iho
land through the Court and pulled down the huts

LANDLORD AND ^TENANT— co«f(?.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— confd.

of the tenants standing thereon, and it was found
that the said tenant had abandoned the possession
of the holding : — Held, that, in a suit for khas pos-
session, the plaintiff was entitled to succeed, and a
notice under s. 87 of the Bengal Tenancy Act to
the old tenant was not necessary. Bhagaban
Chandra Missei v. Bissesswaki Debya Chow-

DHFRANI . . . . 3 C. W. N. 48

43. Necessity of notice — Bengal

Tenancy Act {VIII of 1885), s. 87— Ejectment—
Non-tran-iferaUe raiyati holding, transfer ofi-
Where a raiyat sold liis non-transferable holding and
was no longer in possession of the same and paid no
rent for it, and the landlord brought a suit to eject
both the transferor and transferee : — Held, that the
landlord was entitled to a decree, and that no notice
under s. 87 of the Bengal Tenancy Act was necessary
to enable the landlord to obtain khas possession of
the holding. Lal Mamud Mandal v. Abdvllah
Sheikh, 1 C. W. N. 198, and Bhagahan Chandra
Miisri v. Bixsesswari Dehya Chowdhurani, 3
G. W. N. 46, relied on. Held, also, that the pro-
visions of s. 87 of the Bengal Tenancy Act are not
exhaustive. Samxjgan Roy v. Mahaton

4 C. W. N. 493

44. Relinquishment not made

in writing— Act XII of 1881 {N.-W. P. Bent Act),
s. 31 — Landholder and teiiant — Belinquishment of part
of holding. A relinquishment made by a tenant of
his holding, when he does not hold under a lease,
need not necessarily be in writing, nor need such
relinquishment necessarily extent to the whole of
the tenant's holding ; although, if the rehnquish-
ment is not in writing, the tenant may still be liable
for the rent of the holding. Waris Khan v.
Daflat KH.4N (1902) . I. L. R. 25 All. 77

45.

Possession of land under

attachment by Magistrate — Criminal Brace-
dnre Code {Act X of i'-s-?), s. 146— Abandonment.
Where on account of a disiJutc between reval
tenants under the same landlord regarding posses-
sion of certain lands, the Magistrate, acting under
s. 140 of the Criminal Procedure Code, attached the
lands, and settled them with outsiders on yearly
settlements, and neither of the rival tenants brought
any suit to establish their title to the lands or paid
any rent for them to the landlord since the dale of
the attachment. Held, that the possession of the
Magistrate was possession on behalf of such of the
rival tenants as might establish a right to possession
on their own account and the money realized by the
Magistrate from the persons settled by him on the
lands was held on behalf of such tenants and not on
behalf of the landlord. Held, also, that the above
facts did not constitute abandonment of the lands
by the rightful tenants. Beni Prasad Keoki v,
Shahzada Ojha (1905) . I. L. R. 32 Calc. 850

46.

Relinquishment of ten-

ancy during the term of the mortgagee.

( 6473 )

DIGEST OF CASES.

( 6474 )

IjANDLORD and TENANT— co»W.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE-^owW.

Occupancy tenant — Usufructuary morlijnge. Held,
that, an occupancj^ tenant, who was made a
usufructuary mortgage of his holding and put the
mortgagee in possession cannot during the subsist-
ence "of such mortgage relinquish liis holding to
the prejudice of the mortgagee's rights. Badri
Prasad y. Sheodhian, I. L. R. IS All. 3o4, followed.
Ranntj Rai t;. Rafi-ud-din (1905)

I. L. R. 27 All. 82

47.

Fictitious transfer of

liolding — Determination of tenancy — Ahandonment
— Transfer of non-transferable holding — Effect of
transfer. Where a raiyat of a non-transferable
holding executed a conveyance in respect thereof
in favour of the defendants, but continued
notwnthstanding to reside on the property and
carry on the cultivation for some time, and the
rent of the holding was paid by the defendants in
the name of the raij'at : Held (Ghose, C.J., and
Geidt, J.) that, if the transfer was not intended
to be an operative transaction, the mere fact
that the raiyat went away from the holding to
reside elsewhere would not be sufficient to make
out a case of abandonment so as to entitle the
landlord to re-enter. Mathura Mandal v. Ganga
Charan Gope (1906) . I. L. R. 33 Calc. 1219
s.e. 10 C. W. N. 1033

48. Original tenant remaining

in possession as sub-tenant of the trans-
feree— Transfer — RlgJit of occupancy — Abandon-
ment—Bengal Tenancy Act {VIII of 1SS.5), s. S7 —
Ejectment. Where a t«nant having a non-transfer-
able right of occupancy sold such right to a third
person, obtained a sub-lease from the purchaser and
remained in possession of the land and was cultivat-
ing the same. Held, that the landlord was not
entitled to the hhas possession as against him. Dina
Nath Roy v. Krishna Bejoy Saha, 9 C. W. N. 379 ,
Srisleedhur Biswas v. Mudan Sirdar, I. L. R. 9 Calc.
648, followed. Kallinath Chahravarti v. Upendra
Chunder Chowdhry, I. L. R. 24 Calc 212, distin-
guished. In order to entitle a landlord to re-enter
on abandonment by the tenant, it must be an aban-
donment in the words of s. 87 of the Bengal Tenancy
Act, namely, that the raiyat voluntaril}^ abandons
his residence and ceases to cultivate, without
notice to the landlord and without arranging
for the payment of his rent as it falls due.
Nurendro Narayan Roy v. Ishan Chunder Sen, 22
W. R. 22, and Dwarka Nath Misser v. Htirrish
Chunder, 1. L. R. 4 Calc. 925, referred to. Madar
MoNDAL V. Maui.ma Chandba Maztjmdar (1900)

I. L. R. 33 Calc. 531

49. Non-transferable occu-
pancy holding, transfer of — Abandonment
■ — Permissive possession under transferee— Landlord's
suit for hhas possession. Where a tenant having
a right of occupancy not transferrable by custom,
had given up to the purchaser possession of all the
culturable lands of the holding but remained in

LANDLORD AND TENANT— con<<i.

22. ABANDONMENT, RELINQUISHMENT, OR
SURRENDER OF TENURE— co icld.

possession of homestead lands only by permission
of the purchaser : — Held, that this was sufficient
to indicate that the raiyat had abandoned his
holding and in such a case the landlord is entitled
to eject the raiyat and the purchaser and get khas
possession. Sailabala Debi v. Srira:^ Bhatta-
CHARji (1907) . . . new. N. 873

23. EJECTMENT.

(a) Generally.

See Ejectment, suit for.

1. Interference with tenant

by zamindar — Inducing sub-tenants to pay rent
to zamindar. Where a zamindar so interferes with
the possession of a tenant not personally occupying
the land as to induce the under-tenants to pay rent
to him (the zamindar), his interference amounts
to dispossession. Hoymobutty Dassee v. Sree-

KISSEN NUNDEE . . . .14 W. R. 58

See RadhI Madhub Panda v. Juggernath
DooAB 14 W. R. 183

2. Right of landlord to eject

and re-enter— Expiration of lease and omission to
take renewal. Where an old lease has expired, and
the lessee, having the option of renewal on apply-
ing within a specified time, does not choose to take a
new lease, the landlord's claim to re-entering cannot
be styled a penalty in the sense in which forfeiture
of a lease would be upon non-performance of a
contract. Deb Pooree Boistobee v. Kexoo Singh
Roy .... . 20 W. R. 357

Right of lessee of zamin-

dari rights to eject. Unless evidence to the con-
trary be forthcoming, a lessee of zamindari rights
must in tliis country be presumed to have all and the
same powers in relation to the location or ejectment
of raiyats as are possessed by the zamindar. Sttda
NuND V. Dwarka Singh "

2 N. W. 194

4, Right of joint lessor— 5«j«

for ejectment. One of .several joint lessors can
eject a lessee after expiry of the lease. Mudpn
Singh v. Nurput Singh . . 2 W. R. 291

5_ Right of purchaser— Prt<nt

talukh—Sale for arrears of rent—'-' Optimus inter-
pres rerum itsus." The plaintiff, purchaser of a
talukh, sold for arrears of rent under Regulation
VIII of 1819, brought a suit for klias possession of a
tank within the talukh purchased by him, which
had been held by the defendant and her predecessors
from a time anterior to the grant of the talukh.
Held, that the relationship of landlord and tenant
in wlaich the parties stood did not prevent the appli-
cation of the maxim optimus interpres rerum usus,
and it was open to the defendant to show by
evidence as to the nature of the enjoyment what the
origin of the tenure really was. It being shown that

( 6475 )

DIGEST OF CASES.

( 6476 )

liANDLOSD AKD TENANT— <;on<c^.
23. EJECTMENT— ronR
(a) Generally — contd.

the interest in the tank had been frequently trans-
ferred during a period of more than sixty years
without any change in the terms of the holding or
the amount of rent paid, and that one of the
transferees of the tank had been the owner of the
talukh in which it was, it was held that the plaintiff
was not entitled to a decree for khas possession.

NiDHIKEISHNA BOSE V. NiSTAEINI DaSI

13 B. L. E. 416 : 21 W. R. 386

Summary ej<?d-

ment — Person not in receipt of rent. Tenants long
in possession and pajnng rent cannot be summarily
ejected in an action by an alleged pui-chaser suing
for possession ; they can only be ejected in a suit in
the Revenue Court by the j)erson entitled to receive
the rent. Thakooe Doss Roy v. Bh-trub Chux-
DER Bhuttachaejee . . 11 "W. R. 509

7. Liability to ejectment-
Low^ tenancy. Nature of. Where the defendant had
been in possession as tenant for more than thirty
years, and there was no lease or agreement shoA\ing
the nature of the original tenancy, the presumption
of law is that he is a tenant from year to year, and
therefore liable to be ejected. Regulation V of
1827, s. 1, does not apply to such a case. Bai
Ga^-ga t. DuLLABH Parag . 5 Bom. A. C, 179

8. Inumdar —

Perpetual right of occupancy — Suit for ejectment.
WTiere a family of kulkarnis in the Konkan v\-as
pro\ed to have been in actual occupation of lai:d
under an inamdar for ninety years at a uniform rent:
— Held, in the absence of proof of any lease for a
more limited term as alleged by the i)laintiff, that
the occupants were entitled to hold as long as
they paid the usual rent. AifNAJi Appaji v. Kasi
Atmaji .... 3 Bom. A. C. 124

9. Tenants of inam-

dar — Right to raise rent — Tenants in pofszssion
before grant. An inamdar, though he cannot
eject his tenants who have been in possession before
the grant of the inam, as long as they pay the rent
due for their land, may nevertheless raise such rent
at his pleasure (they not having acquired a prescrip-
tive title), and is not restrained in doing so by the
rates fixed by the Government survey. Hari bin
JoTi V. Narayan Acharrya . 6 Bom. A. C. 23

10.

Position of sub-

lessee under unexpired lease. The fact that a
person holds under an unexpired lease granted by a
mere occupancy raiyat against whom a decree of
ejectment has been obtained, is of no avail to enable
such person to support his possession against the
zamindar. Jafree Begum v. Hossein Zaman
Khan . . . . . 2N. W. 6

Status of l-asht-

Jcur. The plaintifE occupied as kashtkar a piece
of land in a mouzah which was subsequently leased
in farm. The farmer granted a pottah of a portion

LANDLORD AND TENANT— confci.

23. EJECTMENT— conR

(a)^GENEEALLY — conid.

of the mouzah, including the plaintiff's holding, to Sj,
to'whom, instead of the farmer, the plaintiff subse-
quently paid rent. In the absence of any evidence
as to the nature of the pottah granted to S, and
of any consent on the part of the plaintiff to change
his status, he did not lose his status of kashtkar,
and was not liable to ejectment by reason of the
ejectment of -S. Mat.u'ulut Singh v.Mata Dyal

3 Agra 275

12. Lessees from

lakhirujdar — Right of zamindar to eject. A party
in legal possession under a lease from a lakhii-ajdar
cannot be summarily evicted by the zamindar
without the inttrventionof the Court, even if the
zamindar is entitled to resume the land as invalid
lakhiraj, or as lands which liavc lapsed on non-
performance of stipulated service. Indkabutty
Koonwaeee v. Holloway . 9'W. R. 168-

13. — • Illegal ejectment — Right

of tenant to be restored to possession if dispossessed,
before tenure is put an end to. In a suit for posf es-
sion by a tenant who claimed to bf Id under a perma-
nent tenure, it was found that the tenm-e imder
which the plaintiffs claimed had not, though not
found to be permanent, been r)ut an end to. Held,
that the plaintiffs were entitled to succeed. Chpn-
DAR Kumar Guha v. Mungul Mollah

11 C. L. R. 387

14. Suit hy tenant

for possession. A tenant, suing to recover posses-
sion of an old jote from which he has bten dispos-
sessed by his landlord before the termination of his
tenancy, is not required to prove a right of occu-
pancy. CR0^VDY V. Jhukkee Dhanook

23 W. R. 387

15. ~ Act X of 1S59,

s. 25. An ejectment by a zamindar without
application made to the Collector under s. 25, Act X
of 1859, is not necessarily an illegal ejectment. The
illegality of the ejectment must be established by
evidence. Sheo Ruttu>' Singh v. Phool Koo-
maree . . . W. R. 1864, Act X, 68

16. ■ Act X of 1859,

s. 23, cl. 6, and s. 25— Limitation Act, 1S59, s. 15
— Suit for possession by raiyat. When a zamindar,
of hi? own authority, and without the interventi( n
of the Collector under s. 25, Act X of 1859, ejects
a tenant whose lease has expired, the tenant may
recover jjossession, without reference to the title
of the zamindar to eject him, in a suit under s. 15,
Act XIV of 1859 ; but if the tenant sue under
cl. 6, s. 23, Act X of 1859, the question is open as to
whether the tenancy was at an end or not ; and W
it was at an end, the tenant must fail in his suit.

JONARDUN ACHAEJEE V. HaRADUN AcHARJEE

B. L. R. Sup. VoL 1020 : 9 W. R. 513

Uejoon Dutt Boxick v. Ram Nath Kurmo-
K.1R . . ~ . . . 21 W. R. 123

( 6477 )

PIGEST OF CASES.

( 6478 )

LANDLORD AND TENANT-^onW-

23. EJECTMENT— ca««rf.

(a) Generally-

17.

ontd.

-. Restoration to
If a raiyat, hold-

ienan cy after tironyful eviction

ing at a particular rent, is unlawfully evicted, he
does rot recessarily ease to hold at that rent ; and
if he is I'estored to possession, he is restored to his
original holding. Rashbehary Ghose v. Ram
CooMAB Ghose . . . 22 W. B. 487

POOLIN BeHAREE

W. B. F. B. 91

Liability to

LUTTEEFUNNISSA BiBEE

Sein ....
18.

es for ejectment. In a suit by an ejected les-
see to recover a year's balance of rent froru his les-
sor, who bad given a lease to another party and dis-
possessed plaintiff : — Held, that, by granting the
later lease, defendant had made himself responsible
for any loss wbich might thereby be occasioned to
plaintiff even though he (the lessor) had not collected
the rent himself. Gobind Chund Juttee v.
MuN MoHTjN Jrx . . . 14 W. B. 43

19. Effect of order of ejectment

—Bengal Rent Act, 1869, s. 53— Eight to stcmdihy
crops on land. The effect of an order of ejectment
under s. 53 of the Rent Act is to dispossess the
raiyats, not only of the land, but also of the crop
standing thereon, the object of such an ejectment
being to terminate completely the ccnnection be-
tween the parties as landlord and tenant. In the
nuitter of Duejan Mahton v. Wajid Hosrein

I. L. B. 5 Gale. 135

20. Suit for arrears

of rent— Bengal Rent Act (Beng. Act VIII of 1869),
*«. 22, 52. A landlord who sues for arrears of
rent, for the ^\hole of one year, and a portion of
the next, and also for ejectment, is not entitled to a
decree for the latter. The right to ejectment under
?. 22 of the Rent Act (Bengal Act VIII of 1869)
accrues at the end of the year, and forfeiture or
determinaton of the tenancy thereupon takes place,
but if the landlord sues for subsequent arrears, he
treats the defendant as his tenant, and the right ac-
quired under that section must be taken to have
been waived. Jogeshuri Chowdhrain v. Maho-
med Ebrahim . . I. L. B. 14 Gale. 33

"!• ' :^ Agreement by

occupancy-tenant to relinquish his holding — Agree-
ment not enforceable — Suit for specific performance
j of agreement — Jurisdiction of Civil Courts. The
! defendant, who was a tenant with a right of occu-
.pancy in the land cultivated and held by him,
j executed a kabuliat in respect of the said land in
(favour of the plaintiffs (his landlord), agreeing that
on the expiry of the term fixed in the kabuliat he
iShould have no claim to retain possession , of the
cultivatory holding, but that he should give it up.
Plaintiffs sued for ejectment of the defendant on the
basis of the agreement and obtained a decree from
the lower Appellate Court. On second appeal by
the defendant:— i/eW, that, inasmuch as the plaint-
iffs sought to enforce the covenant contained in the

LANDLOBD AND TENANT— con<<i.

23. EJECTMENT— <;on<<i.

(a) Geneeaixy — covid.

kabuliat in such a manner as to extinguish the rights
of occupancy found upon the facts of the case to
have been acquired by the defendant in the land in
suit, such suit must fail, as opposed to the policy of
the law as shown in the provisions of s. 9 of the
Rent Act (Act XII of 1881). Such a tenant may
be ousted from his holding by enforcement of the
remedies given in that behalf in s. 95 {d) and (/), but
not in the manner sought b}' the plaintiff in this
action. Kauri Thakurai v. Ganga Naratn Lal
L L. B. 10 All. 615

22. Evidence Act

(I of 1872), s. 116— Estoppel— KumaM land—Vn-
assessed waste reclaimed by plaintif) — Pottah grant-
ed to defendant. The plaintiff, who was the holder
of a warg in Canara, demised adjacent %\ aste land to
one who brought it into cultivation and remained in
occupation for two years. The land was not assess-
ed to revenue in the name of either of these persons.
At the end of t-\vo years the tenant let into occupa-
tion a sub-tenant, who subsequently assigned his
right to the defendant, the holder of a neighboiu'ing
Marg. The defendant obtained a pottah for the
land from the Revenue authorities. In a suit by
plaintiff to eject the defendant : — Held, (i) that the
defendant was not estopped from setting up a title
adverse to the plaintiff, and that his possession
became adverse when the pottah was granted to
him ; (ii) that the plaintiff was not entitled to eject
the defendant. Subbaraya v. Krishnappa

I. L. B. 12 Mad. 422

23.

Miras

tenure

— Suit by an inamdar to recover possession from a
trespasser, claiming to have redeemed a mortgage
made by mirasidar — Possession not adverse. An
inamdar sued to eject the defendants from certain
lands, alleging them to be trespassers. The Courts
found that the lands were mirasi lands, and that one
G was mirasidar. The elefendants hatl redeemed a
mortgage effected by G and claimed to hold posses-
sion as against the plaintiff. Held, that, as the land
was found to belong to G as mirasidar, and as his
mirasi tenure was still subsisting, the plaintiff as
inamdar was not entitleel to eject the defendants,
whether or not they had any rights as against the
mortgagee. ^'INAYAK Jaxardax v. Maixai

I. L. B. 19 Bom. 138

24.

Ejectment, suit

for — Onus — Dispossession by tenant — Presumption.
When a tenant has been in long and peaceable
occupation of land as part of an atimitted tenure, it
lies upon the landlorel, in a suit for ejectment to
prove in the first instance that the land is his khas
property and not the tenant's. But where a tenant
cut a tree standing upon a piece of land, and within
a few months of that occurrence the landlord
brought a suit for ejectment, and it was found
that neither party had possession of the tree and
its site : Held, that the fact of defendant's pos-

( 6479 I

DIGEST OF CASES.

( 6480 )

liAlTDLORD AND TENANT— contd.
23. EJECTMENT— conf<i.
(o) Gbneeaixt — contd.

Bession of a tenure of limited extent, within the
plaintiff's paini, raises no presumption upon the
defendant's seizure of a piece of land and claiming
it as part of his tenure. Rhidoy Kristo Mistri v.
Nobin Chunder Sen, 12 C. L. R. 457 ; Batai Ahir
V. Rhuggahutly Koer, 11 C. L. R. 476 ; Ram Monee
V. Aleemoodeen, 20 W. R. 374 ;Rajkishen Mookerjee
V. Pearee Mohun Mookerjee, 20 W. R. 421 ; and
Rajendro Kumar Bose v. Mohim Chandra Ghose, 3
C. W. N. 763, distinguished. Nanda Lal Goswami
V. Jajneswae H alder (1901) . 6 C. W. M". 105

25.

Ejectment, suit

for — Permanency of temire, circumstances justifying
inference as to — Rent, uniform payment of, for a long
period^Origin of tenancy not traceable — Transfers
without objection by landlord — Existence of building
on land. Where the origin of a tenancy cannot be
traced, but it is proved that the land has been held
at the same rent for a substantially long period, that
there has been no attempt on the part of the land-
lord either to enhance or to eject, that some pucca
building has existed on the land for a very long
period and that the property had from time to time
been transferred to the knowledge of the landlord
without any objection on his part, a Court is justi-
fied in inferring that the tenancy originally created
was of a permanent nature. That in such circum-
Btances the tenants are not liable to be ejected upon
the footing of the tenancy being merely an annual
one. Ismail Khan Mahomed v. Joygoon Bibee,
4 a W. N. 210, distinguished. Ismail Khan
Mhomed V AsMATULLA Sareng and J\MLrr BiBI
(1904) . . . . 8 C. W. N. 297

Ejectment-

Permanent tenancy, how proved. AVhere for a very
long time a certain holding had from time to time
been transferred and had descended bj' inheritance,
and had further been subdivided by the tenant, and
there had never been any objection on the part of
the landlord during all the time (although the pro-
perty was situated in a place where such property
had increased enormously in value), nur had the
landlord ever made any attempt to eject the tenant.
Held, that the holding was of a permanent character
and the tenant was not liable to be ejected. Ismail
Khan" Mahomed v. Joygoon Bibee, 4 0. W. N. 210,
distinguished. Ismail Khan Mahomed v. Mrix-
MOYi Dassi (1904) . . 8 C. W. N. 301

27.

Partial eject-

ment— Joint estate — Co-sharer landlord, rights of-
Service tenure — Fair and equitible rent—Bengal
Tenancy Act (VIII of 18S5). Where tenants were
origina'ly let into possession of land by all the co-
sharers in a zamindari, a co-sharer landlord is not
competent to obtain a partial ejectment of the
tenants to the extent of his share unless the tenancy
has been determined by all the co-sharers. Hulo-
dhur Sen v. Qooroo Doss Roy, 20 W. R. 126 : Radha

LAND LORD AND TBN ANT— contd.

23. EJECTMENT— contd.

(a) Generally — contd.

Prosad Wasti v. Esuf, I. L. R. 7 Cole. 411 ; and
Kamal Kumari Chowdhurani v. Kiran Chandra Roy,
2 C. W. N. 229, distinguished. Seinble : In the
case of a service tenure created by all the co-sharers
in the zamindari, not governed by the provisions of
the Bengal Tenancy Act, a co-sharer landlord is not
competent to sue the tenants for fair and equitable
rent payable in respect of his share for failure of
service originally performed. Ghulam MomUDniN
Hossein v. Khair^n (1904)

I. li. R. 31 Calc. 786

Ejectment, sidt

for — Permanency, plea of — Transmission by sale
and mortgage of permanent right, recognised by land-
lord— Mattvali landlord, recognition by — Effect —
Rent, uniformity of. A tenant proved (i) a series
of sales and mortgages of the subject matter of the
tenancy, dating from 1826 and purporting in each
case to transfer a permanent inheritable right — and
also (ii) uninterrupted payment of the same rent, (iii)
A kabuliat of 1830 mentioned that the tenant-execu-
tant had under a bill of sale purchased the " former
holding" of the precedessor of the executant's
vendors : Held, that the kabuliat CN-idenced recog-
nition by the landlord of the transfer which the bill
of sale purported to make, and that in the absence
of evidence to the contrary, the tenant had made
out a permanent title. The fact that the landlord
to whom the kabuliat was given, had only the
limited rights of a matwali, did not affect the tenant's
title, which already existed independently of the
matwali and which the matwali recosn'sed. Upen-
DRA Krishna Mandal v. Ismail Khan Maho-
med (1904) . . . I. L. R. 32 Calc. 41
8 C. W. N. 889
s.c. L. R. 31 1. A. 144

29. Incunihrancea

by tenant and subsequent ejectment — Effect of eject-
ment on mesne incumbrances. The ejectment of a
tenant, under s. 10 or 41 of the Rent Recovery Act,
operates not only as a determination of the tenant's
rig'it of occupancy, but also as an extinguishment
of all mesne incumbrances and subordinate interests
created by the tenant. A tenant gave a usufructu-
ary mortgage over his land and covenanted to repay
the amount. About two years thereafter the
shrotriemdar obtained a decree against the tenant
directing him to accept a pottah as settled by the
judgment. On his failure to do so the tenant was
ejected. The mortgagee now sued the tenant and
the shrotriemdar claiming, a personal decree as
against the tenant and the sale of the mortgage 1
property as against the shrotriemdar, in whose
possession it was. Hdf, that the mortgagee was not
entitled to an order for the sale of the mortgaged
property. Ekambara Ayyar v. Meenatchi Am-
MAL (1904) . , I. L. R. 27 Mad. 401

30. Accommoda-
tion provided in the abadi for agricultural tenant — Suit

( 6481 )

DIGEST OF CASES.

( 6482 )

Ij.\N"DIiORD AND T'ENANT^contd-

23. EJECTMENT— co/itrf.

[a) Generally — contd.

jor ejectment. Some agricultural tenants had been
occupying a room in an inclosure in the ahadi for
thirty vears. Held, on a suit by the zamindar to
eject' them, that the pi lintifE had no cause of action ;
either the defendants had acquired a title by
adverse possession, or if their possession was per-
mis'^ive, they could not according to custom be
ejected, while their tenancy was still undetermined.
NAzm Hassak .. Shibba (1905)^^ ^^^ ^^^ ^^

31.

— Presumption
-Long continuous

as to tenancy being perrmnent-
■possession on payment of unchanged rent — Transfers
of holding and erection of htiUdings on it— Recognition
by landlord of transfer of holding— Surrender by
tenant— Construction of poltah and kabuliyat. Suit
for ejectment in which the defendant claimed a
permanenv temu'e in the land in dispute, basing his
title upon a series of transmissions of it by^ sale or
mortgage, which went as far back as 1852, each
transmission purporting to be of a permanent in-
heritable right, and upon the continuous possession
of his pr.'dccessors in title at an unchanged rent.
The plamtiff, who was a lessee of the land under
the MatA^ali of the Hooghly Imambara, alleged
that the defendant was merely a tenant-at-will, and
that the transmissions were not recognized by his
predecessors in title and were not- binding on him,
and relied on a pott ah and kabuliyat granted to the
defendant by the IMatwali in 1852 as being the origin
! of the defendant's holding, contending that on the
construction of those documents there was at the
date of them an ' ' istifa,' ' or surrender, of the land
to the landlord by the former tenant. No docu-
] ment of surrender was produced : — Held (reversing
1 the decision of the High Coiu-t), that on the true
construction of the pottah and kabuliyat (which
i referred to a deed of sale to the defendant's pre-
decessor of the same date and spoke of the jumnia
; as " according to former custom and practice ") no
'■ more was implied than that the seller acknowledged
j that he had parted \uth the land. No inference
I of a smTcnder by the tenant could be made from
' them, but they attested the landlord's recognition
• of the transimissi ni of the property by an
' instrument purporting to convey a permanent
1 inheritabe right, and taken, with the other facts
' of the case, they established the defendant's title.
' In such cases the question is whether the true
j inference from the facts is that the tenure is per-
' manent or precarious, the burden of proof being on
' the tenant. See Upendra Krishna Mandal v. Ismail
; Khan Mahom.ed, I. L. R. 32 Calc. 41. NiLKATA>f
i MiTSDAL V. Ismail Khan Maho:med (1904)
I I. Ij. R. 32 Calc. 51

B.C. L. R. 31 I. A. 149
8 C. W. N. 895

82. Agricultural

tenancy — Disclaimer of landlord's title — Forfeiture
— " Disdaivier,'' what amounts to — Putti?ig land-

LANDIiORD AND TENANT -<owW.

23. EJEC'J'MENT— c(>«ti.

(a) Generally— conJd.

lord to proof of his title — Denying landlords
right to receive the entire rent — Estoppel by matter
of record — Disclaimer made in written statement
in a suit to eject. There is no disclaimer of the
relationship of landlord and tenant where the
tenant merely puts the landlord to the proof of
his alleged title by purchase ; nor where the tenant
merely questions the extent of the landlord's
interest and his title to receive the entire rent.
When in a previous rent suit, the tenancy being
agricultural, the defendant objected that the plaint-
iff alone was not entitled to realise the whole rent
and the suit was dismissed, because the plaintiffs'
right to collect any share of the rent separately from
his alleged co-sharers was not established. Held,
that, in a subsequent suit for ejectment brought by
the plaintiff in which he succeeded in establishing
his exclusive title to the land, the defendant was
not " estopped by a matter of record ' ' from
relying on his tenancy as a defence to such a suit.
Nilmadhab v. Anantrdm, 2 C. W. N. 755 ; and Fyaj
Dhali V. Aftabuddin, 6 C. W. N. 575, doubted as
being in conflict mth Debiruddi v. Abdur Rahim,
I. L. R. 17 Calc. 196 ; and Dhora v. Ramjewan,
I. L. R. 20 Calc. 101, distinguished. The disclaimer
of landlord's title which is relied on as a ground for
ejecting the tenant must have been made before the
suit in ejectment was instituted. A disclaimer
contained in the written statements of the defend-
ant cannot be made the basis of a decree for
ejectment in the suit. Mallika D.4SSI i\ ^^^^^^^
Lal Chowdhuey (1905) . 9 C. W. N. 928

33_ Usufructuary

mortgage — Ejectment. \Vhen the tenant of a non-
transferable holding executes a usufructuary
mortgage of it, places the mortgagee in possession,
abandons the holding and leaves the village, the
landlord is entitled to treat the mortgagee as a
trespasser and to ask for his ejectment. Krishna
Chandra Dutt v. Miran Bajania, 10 C. W. N. 499 :
sc 3 C L. J. 222, followed. Rasiic Lal Datta v.
BiBHU M^KHX DASi (1906)^ ^^ ^ ^^ ^^^^_ ^^^^

s.e. 10 C. W. N. 719

34 ^^ ^ Ejectment —

Res judicata— Denial of landlord's title— Dismissal
of previous suit for rent, on, denial of relationship of
landlord and tenant. In a previous suit brought by
the plaintiff against the defendant for rent, the
latter denied the existence of the relationship of
landlord and tenant. The suit was dismissed on
the ground that the defendant was not the plaintiff s
tena'nt. Plaintiff now sued to eject the defendant :

Held, that, having regard to the decision in the

previous suit, the plaintiff was entitled to treat the
defendant as trespasser and to sue him for eject-
ment. Nilmadhab Base v. Ananta Ram Bagdi, 2
C. W. N. 755 ; Fayj Dhali v. Aftabuddin Sirdar,
6 C. W. N. 575, and Ramgati Mohurer v. Fran

( 6483 )

DIGEST OF CASESi

( 6484 )

LANDLORD AND TEN ANT— contd.

23. EJECTMENT— co«R

(o) Gbnekally — contd.

Eari Seal, 3 C. L. J. 201, followed. Mallika
Dassi V. Makham Lai Chowdhry, 9 C. W. N. 92S,
referred to. KLhater Mistri -y. Sadkuddi Khan
(1907) . . . L L. B. 34 Gale. 922

35. ~ Easements Act

(F of 1882), s. 60 — Landlord and tenant — Occupation
of btiilding-site in abadi — Erection of permanent
building — Suit for ejectment. The defendants were
found on the evidence to be tenants-at-will of the
jlaintiff of land in the abadi, the land having been
allotted to their ancestors on condition of their
rendering service as patwaris. The defendants ?iad
ceased to perform the duties of patwaris, but still
occupied the land, and had built houses thereon of
a permanent character. Held, on suit by the
zemindar to eject the defendants, who had denied
the zemindar's title, that the i^rinciples laid down
in Bani Rain v. Kundan Lai, I. L. R. 21 All. 496,
applied, and that there was no such conduct on the
part of the zemindar as ^^■ould justify the inference
that she had contracted that the right of tenancy
under which the defendants originally obtained
possession of the land, should be changed into a
permanent right of occupation ; neither could the
defendants pray in aid s. 60 of the Indian Ease-
ments Act, 1882. Held, also, that the acquisition
pending the suit by one of the defendants of a
share in the village in which the land in suit was
situate did not give the defendants any title to
retain possession of the site in the abadi from which
the plaintiff was suina to eject them. Budh Singh
V. Parhati (1907) T . L L. R. 29 All. 652

36.-

Lease — Cove-

nant for renewal — Vague and unenforceable — Under-
raiyati lease. Where an under-raiyati lease for a
term of nine years provided that at the expiry of the
term the tenant might apply for re-settlement in
which case the landlord would be bound to grant
him a re-settlement without any bonus : — Held, in a
suit for ejectment brought by the landlord at the
end of the term, that the above covenant did not
specify any terms or the amount of rent to bo paid
by the tenant, and was too vague to be given effect
to, and could not be set up as a defence to the suit.

SURENDRA NaTHSeN V. DlKABAT^-DHTT NvlK (1908)

13 C. W. N. 595

37. • Bengal Tenancy

Act (VIII of 1885), ss. 52, 188— Suit by co-sharer
landlord for compensation for use and occupation by
tenant of excess land — Parties, all landlords if must
he — Absence of prayer for ejectment in such suit —
Waiver of right to eject — Suit virtually for rent. A
plaintiff who sues for compensation for use and
occupation of land but does not ask for ejectment
therefrom of the defendant waives his right to
eject and must be taken to have recognised the
defendant as a tenant. Such a suit was treated by
the Court as a suit for rent. When a tenant is
found in possession of land which formed no part of

LANDLORD AND TENANT— conjrf.

23. EJECTMENT— conid.

(a) Generally — concld.

the land originally let out to him, the landlord is-
entitled to treat, the excess land as a new holding,
and a suit for rent may be brought in respect thereof
independently of s. 52 of the Bengal Tenancy Act
and therefore s. 188 of the Act is no bar to a co-
sharer landlord suing for his share of comx)ensation
for the use and occupation tf the land by the
tenant. Khondakar Abdul v. Mohini Kant Sahu, 4
C. W. N. 508, doubted. Abdul Hakim Saha t.
Rajendra Narayan Rai (1909)

13 C. W. N. 635

38. Beng. Act VIII

of 1869, s. 52 — Landlord and Tenant — Proced^ire Act
{Beng. VIII of 1869), s. 52— Decree for ejectment if
arrears of rent not paid within 15 days — Appeal,
payment of ainount pending — Dismissal of appeal
with costs — Failure to pay costs within 15 days, if
entails ejectment. Where a decree was passed under
s. 52 cf Beng. Act YIII of 1869 for arrears of rent
and for ejectmerit if the arrears were not paid
within 15 days, and an appeal bj^ the judgment-
debtor during the pendency of which the decretal
amount was paid ^^a3 dismissed with costs, but
these costs were not paid within 15 days of the
appellate decree: — Held, that the Munsif did not
act without jurisdiction in malving an order for the
attachment of the judgment-debtor's moveable
property in execution of the decree for costs and for
his ejectment from the land. The appellate decree
must be p^ei-umed to have incorporated the
terms of the original decree. Noor Ali Choicdhvn
V. Koni Meah, I. L. R. 13 Calc. 13, relied on.
Thamai, Marap '•. Abhoyessuri I>ebi (19118)
13 C. W. N. 1060

39.

(6) Notice to quit.

Necessity of notice— i/ode

of determination of tenancy. Notice to quit is a
necessary part of the landlord's title to eject the
tenant. Abdulla Rawutan v. Pakkeri Mohomed
Rawutan . . . I. L R. 2 Mad. 346
40. Mode of deter-
mination of tenancy. In a suit by a lessee to oust
the tenant in possession : — Held, that the tenancy
must be shown to have been legally determined by
notice to quit, demand of possession, or otherwise.
FitzPatrtck v. W.vi.lace

2 B. L. B. A. C. 317 : 11 W. B. 231

Narain Mundul v. Bhookto Mahato

25 W. B. 56

41.

Surrender of

tenant, effect of, on under-tenants — Bengal Tenancy
Act, ss. 85 and 86. Where a raiyat surrenders hi.^
holding, the landlord is entitled to re-enter and eject
the uuder-raiyats without notice to quit unless they
are protected' by ss. 85 and 86 of the Bengal Tenancy
Act. Nilkanta Chaki v. Ghatoo Sheikh

4 C. W. N. 667

( 6485 )

DIGEST OF CASES.

( 6486 )

[lAUTLORD AND TENANT— conW.
23. EJECTMENT— con^rf.
(6) Notice to quit — contd.

42.

Baiyat wiOiout

ight of occupancy. Quoere : Can a zamindar eject
I, raiyat not having a right of occupancy \vitiiout
riving any notice. Komul Sangath v. Romanath
jOOSsamee ... 21 W. R. 332

43. - — Suit jor ejectment

woiKjht without notice. A raiyat ^hose tenarcy
?an only be determined b}' a reasonable notice to
quit, expiring at the end of the year, can claim to
:iave a suit for ejectment brought against him by
lis landlord dismissed on the ground that he has
received no such notice. Ra.iendeonath Mookho-

PA.DHYA V. BaSSIDER RuHMAN KhONDKHAR

I. L. E. 2 Calc. 146 : 25 W. R. 329

44, . . Tenant-at-will —

—Evidence of local custom. The nature of a hold-
ing, as between landlord and tenant, must alw ays be
? matter of contract, either expressed or \va\ lied.
H there is no express agreement, a tenant becomes
% tenant-at-v ill, or from year 1o J'ear, and is liable
to be ejected upon a reasonable notice to quit, unless
jome local custom to the contrary is proved. Pro-
sUifKO Coomaree Debea v. Rutton Bei'ary

I. li. B. 3 Calc. 696 ; 1 C. L. R. 577

Abdool Kureem v.'Omer Cha>d Lahata

24 W. R. 461

Taeukpodo Ghosal ?;.'^SHyAMA Chttran Napit
8 C. L. R. 50

45.

Chota, Nagpur

Mndlord and Tenant Procedure Act {Beny. Act I
>f 1S79) — Notice whether necessary in Chota Nagpur.
n a district in which Bengal Act I of 1879 is
n force, no notice to quit is necessary to eject a
enant v.ho holds over after the expiry of his agri-
■ultural lease, there being no provision in the Act for
;ucb a notice. Ram Narain Saha v. ^Iaanoru
Jrao . . . . 4 C. W. N-. 792

48. Beceipt of rent

-Creation of tenancy. The recognition by the
iwner of lands of the interest of parties in possession
)y the receipt of rent from them constitutes a ten-
ancy requiring to be determined by notice or other-
^rae before such parties can be treated as tres-
passers. Sonet Kooer r. Himmut BAHAriOo

I. L. R. 1 Calc. 391 : 25 W. R. 239
i L. R. 3 I. A. 92

i 47. • Lease at small

ent — Endowed lands — Tenant-at-will. Lands form-
ig part of the endowment of a temple were de-
'jised by the Collector at a svamibhogam rent of
3ur annas per cottah, the lessee paying the Govern-
Qeut tu-vai. The lessee entered, improved, and
i'aid his rent for several years. Held, reversing the
ecree of the Principal Sudder An een, that the
mallntss of the rent showed that the lessee was
lere'y a tenant-at-will, and the hakdar of the
ndowment, having regained possession, might oust
imathis pleasure. Regulation V of 1822, s. 8,

LANDLORD AND TENA NT— con<(7.

23. EJECTMENT— confci.

(6) Notice to qtht — contd.

refers only to zamindars and other propretors of
estates permanently settled under the Regulation
of 1802. Nallatambi Pattar v. Ckinnadeyva-

NAYAGAM PlLLAI . . . Mad. 109

48. ^ . Suit for parti-
tion and ejectment of raiyals — Bight of occupancy.
In a suit for partition of the joint inam lands of a
Hindu family, it was not disputed that the plaintitfs
were entitled to the share which they claimed, but
they joined as defendants a number of cultivating
raiyats whom they sought to eject. The raiyats
pleaded that the lands had been reclaimed by their
forefathers, and that they and their fathers had
been in possession ever since, and that they had
thereby required a pernanent right of occupancy.
Semble : That, even if the raiyats had not a per-
manent teniu-e, they could not be ejected except
upon notice at the end of the Fasli, so long as they
paid the rent due upon the lands. Sajtixada
PiELAi V. SuBEA Reddiar . I. L. R, 1 Mad. 333

49.

Miltadar, right

of — KiLdivaram or tenant-right, presumption as to
—Bight to eject. The kudivaram (tenant-right)
dees not necessarily vest in a mittadar, as such, so as
to entitle him to eject the raiyats on his mitta on
notice as tenants from year to year. Skisivasa
Chetti f. Nunjunda Chetti

I. L. R. 4 Mad. 174

50. Tenure trans-
ferable hy custom. The mere fact that a tenure is
transferable under the custom of the district does
not make it one which is not terminable by the
landlord on sufficient notice. Shama Suxpaki
Dabi v. Noben CnuNDER KoT.YA . 6 C. L. R. IIT

51. ■ - — — Claims: of rival

tenants — Pottah by landlord to tenant out of pos-
session. In a suit between two rival tenants having
the same landlord, the one striving to obtain, and
the other to maintain, possession of a particular
parcel of land, where it is found that the defendant
is still in occupation and has not been ejected by the
zamindar, the mere production of a pottah alleged
to have been granted to the plaintiff by the zamin-
dar cannot of itself determine the tenancy of the
defendant, or enable the plaintif? to stand in the
shoes of the zamindar and serve the occu]iant
tenant with a notice to quit. CFrxnKR :Mon-kr
Chanda v. Brindabcn Nath . 25 W. R. 132-

52, Permanent ten-
ancy pleaded. Suit to eject defendants from
certain land held by them from the pluintitT under a
chalgeni (yearly) demise of 1809. The defendants
pleaded that they were kattugudi (permanent)
tenants of the land in ciuestion : they had set up
their title as kattugudi tenants previous to the
chalgeni demise, but it did not apjjear that they
had re-asseited it up to d^te of suit. Held, that
the issue whether the plaintiff had given a notice-

( 6487 )

DIGEST OF CASES.

( 6488 )

XANDIiOBD AND TENANT— conR

23. EJECTMENT— conti.

(6) Notice to quit— conid.

to^quit, reasonable and in accordance with local
usage, should be tried. Baba v. Vishanath Joshi,
I. L. B. 8 Bom. 22S, considered. Subba v.
Naoappa . . . I. L. R. 12 Mad. 353

53.

Notice under

Si of Bom. Act V of lS79—Plea of permanent
tenancy, raised for the first time in defendants^
written stalement in ejectment suit — Denial of land-
lord's title — Objection of want of proper notice raised
first in second appeal. The x^laintiff sued to eject
the defendants as tenants holding over after notice
to quit. The notice requii-ed the defendants to
vacate Mithin eight days. The defendants pleaded
that they were nairasi or permanent tenants. This
plea was not proved. The Court of ficst instance
passed a decree awarding immediate possession.
The Appellate Court held that, although the notice
to quit was not according to s. 84 of the Bombay
Land Revenue Code (Bombay Act V of 1879),
till as the suit was brought bug after the expiry
of the proper period, the plairitiff was entitled to
recover possession " at the end of the present culti-
vating season. ' ' Held, in second appeal, that, the
notice to quit not being according to law, there M'as
no legal determination of the tenancy. The plaint-
ift could not therefore succeed. Held, also, that
the pi 3a of permanent tenancy set up for the first
time in the defendants' written statement in the
present case was not such a disclaimer of the land-
lord's title as to dispense with proof of a legal
notice to quit on the part of the plaintiff : Baba v.
Vishvanalh Joshi, I. L. R. 8 Bom. 228, dissented
from. Held, fm-ther, that it was open to the de-
fendants for the first time in second appeal to raise
the objection of want of proper notice. Vithtt
V. Dhondi . . I. li. E. 15 Bom. 407

See also Azuddin Hossein v. Lloyd

13 C. L. E, lis

78. and Art. 59 — Prescribed period

The expression " prescribed period " in s. 20 (a) ol
the Limitation Act (IX of 1871) means the period
prescribed by that Act. Where a suit was brough.
on the 11th September, 1877, for money paid by th.
plaintiff on the 16th November, 1868, to the use o
the defendant, and the plaintiff based his clain
upon two acknowledgments of the defendant ii
writing, of which the first was dated the 3rd Nov
ember 18T2:—Held, that, to bring the case withii
s. 20 (a) of the Limitation Act (IX of 1871), tb
first acknowledgment should have been made befon
the expiration of the period prescribed by Art. 5!
of Sch. II of that Act, otz., three years from tb
period when the money was paid. . Lxjvae Chuni
LAL Ichhaeam v. Luvap. Teibhoban Lal Das

I. Ij. E. 5 Bom. 686

79 . ''Promise'— Sui^

on bond executed for barred debt-Contract Act, s. 2o
cl. 3. The " promise " referred to in s. 20 of Ac
IX of 1871 is a promise introduced by way of ex
ception, in a suit founded on the original cause o
action, and not a promise constituting a new con
tract, and extinguishing the original cause of action
Accordingly a suit is not barred which is brough
on a bond executed in consideration of a barrcc
debt, after the expiration of the period prescnbc(
for its recovery. Raghoji Bhikaji v. Abdui
Kaeim . I. L. E. 1 Bom. 59C

80 ■ Promissory nott

for barred debt— Contract Act, s. 25, cl. 3. Act l>
of 1871, s. 20, cl. (a), does not prevent a plaintil
from maintaining a substantive action on a promis
sory note passed to secure the amount due on ai
old note which was barred by limitation at the timi
of the making of the new, the plaintiff's right t<
bring such action being recognized by the late)

( 6901 )

DIGEST OF CASES.

( 6902 )

LIMITATION ACT (XV OF 18^^)-contd.
8. 18 — contd.

1. ACKNOWLEDGMENT OF DEBTS— «o»<d.
enactment, Act IX of 1872, s. 25, cl. 3. Chatur

Jaosi v. Tulsi
81.

I. L. B. 2 Bom. 230

Acknowledgment

of barred decree. In the case of a decree for money
payable by instalments with the proviso that in
the event of default the decree should be executed
for the full amount, the decree-holder did not apply
for execution within three j'ears after default was
iiade. Held, that the judgment-debtor having,
three years after the first default, acknowledged in
writing his liability under the decree, and signed
such acknowledgment, that, the decree being
already barred, such acknowledgment did not
create a new period of limitation. Shib Dat v.
Kalka Prasad . . L L. B. 2 All. 443

Ack7iowledg7ne7it

'ifter period of limitation has expired — Promise to
fxiy — Conditional promise to pay barred debt — Co7i-
tract Act {IX of 1S72), s. 25. Where the defendant,
after his debt had become barred by limitation,
wrote as follows to his creditor in reply to a demand
for payment : " I bear the matter in mind, and
will do my utmost to repay this money as soon as
I possibly can." Held, ihut this promise by the
defendant was only a conditional promi.se, viz., to
pay when he was able ; and the plaintiff having
failed to prove the defendant's ability to pay, the
promise did not operate, and the plaintiff could not
recover. Watson v. Yates

I. L. R. 11 Bom. 580

83. Agent — Signature

procured after determination of agency. Notwith-
standing the general provisions of s. 19 of the Limit-
ation Act of 1877, by which a new period of limit-
ation, according to the nature of the original liabi-
lity is allowed, piovided that tho acki owledgn.ent
of liability is made in writing before the expiration
of the period prescribed for the suit, a suit cannot
be brought upon an acknowledgment or account
.stated, signed by a person who has been an agent to
collect rents, if his signature was not procured till
more than a year after the determination of his
acency. Parbuttinath Roy v. Tej.aioy Baner.ji
I. L. B. 5 Cale. 303

84. ■ Account stated —

Adjusted accoimt — Adjustment of accounts, effect of
~"Ruzu ''—Contract Act (IX of 1872), s. 26, cl. 3.
The " ruzu " or adjustment of an account can
operate either as a revival of an original promise or
as evidence of a new contract. If' it is to be used
as an acknowledgment giving a fresh starting point
for computing a new period of limitation, it must be
made in writing and signed before the expiration
oi the period of limitation prescribed. If it is to
be used as evidence of a new contract furnishing a
basis for a new cause of action, it must contain a
promise in writing duly signed as required by the
Contract Act (IX of 1872), s. 25, cl. 3, a bare .state-
me.it of an account not being such a promi.se.
Ramji v. Dharaia I. L. B. 6 Bom. 683

LIMITATION ACT (XV OF 1877)— conJi-
8. 19 — contd.

1. ACKNOWLEDGMENT OF DEBTS^;o»a

85. Accoutit stated —

Promise — Balance admitted due — Baki deva — Act
IX of^ 1872, s. 2-5. The Gujarat! words " baki
deva," which are of common u.se in balancing
accounts, import no more than the English words
" balance due," from which an unwritten contract
may be inferred, but which do not of them.selves
amount to a promise to pay within the sense of Act
IX of 1872, s. 25, cl. 3. Ranchhoddas Nathtt-
BHAi V. Jeychand Khusalchamd

I. Ij, B. 8 Bom. 905
See Ramji v. Dharma

I. L. B. 6 Bom. 683

86. Agreement to pay

as per account — Arknowledgment of debt. The
plaintiff as receiver to the estate of S instituted a
suit on the 11th Jul}-, 1898, against the defendants
to recover the sum of R2, 808- 13-2, a portion of the
-said sum being the rent of a house occupied by the
defendants at Mandalay since January, 1894, till
the 11th July, 1898, the remaining portion being the
price of goods sold by the defendants as agents of
S. It was contended by the defendants that the
plaintiff's claim to rent, prior to Juh', 1894, was
barred. The plaintiff submitted that the letters
written by the defendants to the plaintiff within
three yeais of the institution of the suit agreeing
to pay as per account enclosed by them to the
plaintiff was a sufficient acknowledgment to save
the claim for rent from being barred. Held, that
the plaintiff's claim for the portion of rent claimed
beyond three 3ears was not barred ; the defend-
ants' letters were a sufficient acknowledgment to
save limitation ; there being an admission that
there was an open account between the ])arties,
and that there was a right to have it taken, implied
a promise to pay. Prance v. Sympson, 1 Kay 67'^,
and Banner v. Berridge, L. R. IS Ch. D. 2')-f,
referred to. FixK v. Buldeo Dass

I. L. B. 26 Calc. 715
3 C. W. N. 524

87. _ and Sch II, Art. 110— CoH/^nci

Act {IX of 1872), s. 26, cl. (.3)— Promise to pay a
barred debt. In defence to a suit for rent a tenant
j)leaded that a portion of the claim was barred by
limitation. Plaintiff relied on a letter which had
been signed by defendant, after the disputed portion
had become barred, and in which the defendant,
after referring to the periods in res^x-ct of which
the arrears of rent were due, Siiid " I shall send by
the end of Vy.saklia month." Held, that the docu-
ment contained the ingredients required by s. 25,
cl. (3), of the Contract Act, and that the claim was
not barred by limitation. A document sufficiently
compHes with s. 25 of the Contract Act when it is
signed by the person to be charged, and refers to
the debt in such a way as to identify it, and contains
a promise to pay wholly or in pait the debt
referred to therein, or expres.ses an intention to
pa J' which can be construed to be a " promise.'*

( 6903 )

DIC4EST OF CASES.

( 6904 )

LIMITATION ACT (XV OF 1811)— contd.

— s. 19— co7itd.

1. ACKNOWLEDGMENT OF DEBTS— cow<d.

To create a " promise " within the meaning of the
section, it is not necessary that there should be an
accepted proposal reduced to writing, a written
proposal, accepted before action, becoming by the
definition clause a promise when accepted. The
words of the section show that it is the debt and not
a sum of money in consideration of the barred debt
that the promisor should refer to. Appa Rao v.
Sttryaprakasa Rao . I. L. R. 23 Mad. 94

88. • Admission of

debt being due in writing itself. To bring a case
within s. 4, Act XIV of 1819, the writing must con-
tain within itself an admission that a debt is due,
and oral evidence is not admissible to add to its
meaning. Lutchttmanan Chetty v. Mtttta
Ibtjraki Marakkayer . . 5 Mad. 90

89. , Oial evidence.

The want of an admission or acknowledgment in
writing, as required by s. 4, Act XIV of 1859, to
qualify the limitation prescribed by cl. 9,"s. 1 of
that Act, cannot be supplied by oral evidence of
the admission of the debt sued for. Giree Dharee
Singh v. Kalika Sookul. Doorga Dtjtt Singh
V. Kalika Sookul . . . 7. W. B 46
Wooma Soondery Dossee v. Biressur Roy
8. W. R 289

Contents of ac-

knowledgment' of debt, secondary evidence of — Evid-
ence Act {I of 1S72), s. 91. Para. 2, s. 19 of the
Limitation Act, 1877, belongs to that branch of
the law of evidence wliich is dealt with by s. 91 of
Act I of 1872, and ought not to be read in deroga-
tion of the general rules of secondary evidence so
as to exclude oral evidence of the contents of an
acknowledgment which has been lost or destroyed.
Shambhu Nath Nath v. Ram Chandra Shaha

I. L. fl. 12 Gale. 267

91.

Acknowledgment

in writing — Evidence Act (I of 1S72), ss. 65 and 91-
Secondary evidence. Limitation Act, s. 19, must be
read with Evidence Act, ss. 65 and 91, and does
not exclude secondary evidence in cases where
such would be admissible under s. 65. Shambhu
Nath Nath v. Ram Chandra Shaha, I. L. R. 12
Calc. 267, followed. Chathu v. Virarayan

I. L. E. 15 Mad. 491
Registration —

Non-registration of kobala, effect of — Act VIII of
1S71, s. 17~Act IX of 1S71, s. 20, cl. (c). and s. 49.
Although, under s. 49 of Act VIII of 1871, no in-
etrument which is " required by s. 17 to be regis-
tered shall, if vmregistered, be received as evidence
of any transaction affecting the property to which
it relates." This provision does not prevent such
an instrument being used for the purpose of show-
ing that a fresh period of hmitation has been
acquired under s. 20, cl. (c), of Act IX of 1871, by
an acknowledgment of a debt in writing signed by
^he party to be charged therewith before the ex-

LIMITATION ACT (XV OP 1877)— <;on/d.

s. 19 — contd.

1. ACKNOWLEDGMENT OF DEBTS— contd.

piration of the prescribed period of Himitation
NxTNDO Kishore Lall v. Ramsookhee Kooer

I. L. R. 5 Calc. 215 : 4 C. L. R. 361

93.

explil- 1 — Acknowledgment ir

writing. In a suit upon a bond brought against
the defendant as a principal debtor, an acknow-
ledgment of liability as a surety only is sufficient to
save Hmitation, with reference to s. 19, expln. 1
of the Limitation Act (XV of 1877). Uncoven-
anted Service Bank v. Grant

I. L. R. 10 All. 93

94. Limitation Act

{XV of 1S77), s. 19, Expln. I — Acknowledgment —
Accounts. Under s. 19, Expln. I, of the Limitation
Act (XV of 1877), it is open to the plaintiff, by
reference to the accounts or otherwise, to establish
a connection between two accounts {khatas), and
show that the later one'^was an acknowledgment of
the debt due under the first. Kaliandas Pandudas
V. LoTU (1900) . . I. L. R. 25 Bom 330

95. Limitation Act

(XV of 1S77) s. 19, paragraph 2 — Written nckyiow
ledgment — Date — A Iteration — Evidence — Oral evid-
ence— Oral evidence. Where a written acknow-
ledgment bears a date which has been altered, oral
evidence to prove the date is inadmissible under
s. 19, paragraph 2, of the Indian Limitation Act,
1877. Atmaram v. Umedram, I. L. R. 26 Bom. 615,
distinguished. Gulamali Daluiwia v. Miyabh.^1
Mahomadbhai (1901) . I. L. R. 26 Bom. 128

96. Limitation Act

{XV of 1S77), ss. 19 and 20 — Guardians and Wards
Act {VIII of 1890)— iMinor— Guardian— Debt-
Part-payment — Acknowledgment of liability— Exten-
sion of fitne. A guardian appointed under the
Guardians and Wards Act (VIII of 1890) can sign
an acknowledgment of liability in respect of, or
pay part of the principal of, a debt, so as to extend
the period of limitation against his ward in accord-
ance with ss. 19 and 20 of the Limitation Act (XV
of 1877), provided it be shown in each case that thf
guardian's act was for the protection or benefit of
the ward's property. Annapagafda Tawman-
gatjda v. Sangadigyapa (1901)

I. L R. 26 Bom. 221

97. Limitation Act {XV of

1S77), ss. 14, 19 — Deduction of period during which
plaintiff had been prosecuting another proceeding —
Former ■proceeding dismissed for misjoinder of causes
of action — Written statement of defendant treated as
an acknowledgment. Plaintiff had previously file.l
against the same defendants a suit which had been
dismissed on the ground of misjoinder of causes of
action. He now filed this suit, which would be
barred by limitation unless the period during which
the first suit had been pending should be deducted,
under s. 14 of the Indian Limitation Act : Held,
that plaintiff was entitled to have that period
deducted, inasmuch as he had prosecuted the first

( 6905 )

DIGEST OF CASES.

( 6006 )

LIMITATION ACT{(XV OF 1811)— contd.

8. 19 — ccnitd.

1. ACKNOWLEDGMENT OF DEBTS— con^d

suit with due diligence. The written statement of
the defendant in the fii'st suit was treated as an
acknowledgment, under s. 19 of the Limitation Act,
frpm the date on which the period of limitation
should be calculated. VEXKATARATNA^r Naidu
I'. Ramaraju (1901) I. L. R. 24 Mad. 361

98. - '■ Suit for fore-

"los-ure and sale in the alternative or jor sale — Depo-
. ition in previous suit of a defendant acknowledging
liabiliti/ — Acknowledgment hy agent — Authority of
cn-mortrjagor, merely as such, insufficient — Acknow-
ledgment by ynanuging member insufftcient where
original dealings have been with all the members of
the undivided family. By a deed, bearing date 4th
August, 1882, three defendants mortgaged certain
immoveable property to plaintiff, to secure an
advance of R7,000. On 16th April, 1885, the
mortgagors executed a written acknowledgment of
tlieir liability in respect of that advance. Plain-
tiff instituted a suit against the mortgagors, on 2lst
April 1897, to recover the amount due under the
mortgage, and, in default of payment thereof, for
?ale of the mortgaged ])roperty. The plea to limit-
ition was raised. First defendant admitted in
-'vidence that he had, in July, 1889, deposed in a
-uit in another Court, in which he and his co-mort-
lagors were co-defendants, that their estate was
nider mortgage ; and he also stated (in his evid-
■nce in the present suit) that the debt of R7,00(J
lue to the plaintiff had not been discharged at the
ime when that deposition was given. Both depo-
•itions were signed by first defendant. Held, by
•Sir Arnold White, C.J., and Bhasham Ayyangar,
I., that the suit was not barred as against
jirst defendant. For the purposes of s. 19 of the
amitation Act, the acknowledgment relied on
;nust, on the face of it, purport to be that of an
xisting liability. But the name of the creditor to
I'hom the debt acknowledged is owing, as also the
i-ientity of the debt acknowledged in writing, maj'
le proved by parol evidence. Daia Ghand v.
\iarfraz, I. L. iJ. 1 All. 117; Vppi Haji v. Mam-
\mvan, I. L. B. 16 Mad. 366 ; and Padmanabhan
i^ambudri v. Kunhi Kolendan,' ■'> Mad. H. C. 320,
allowed. Mijlapore v. Yeo Kay, L. R. 14 I. A.
}'>'•'>, referred to. Held, also, that the acknowledg-
jient by first defendant could not affect a co-
lortgagor, or save the suit from being barred as
jgainst him, there being no ground, apart from his
iosition as co-mortgagor, for the inference that the
ret defendant acted as an agent duly authorized
|) make an aekno%>ledgment within the meaning
|f s. 19, Expln. 2. An agencj', within the meaning
f that ex])lanation, cannot bo inferred from the
•ere fact that the person making the acknowledg-
jient IS a joint contractor. When a creditor deals,
j3t with the managing member only of an undivided
mily, but with all the members of the family,
1 co-obHgors, and on that footing enters into a
ansaction, — thereby avoiding any question as to

LIMITATION ACT (XV OF 1877)— co/ifrf.

s. \9—contd.

1. ACKNOWLEDGMENT OF DEBTS— co«<(i.

whether the transaction was really for the benefit
of the family,— he cannot rely upon an acknow-
ledgment of the liability, made by one of them,
as an acknowledgment duly made on behalf of all
the co-obligors, by reason only that the per-son
acknowledging is in fact the managing member of
the family consisting of the co-obligors. There
may, however, be cases in which that circumstance
coupled with the conduct of the joint contractors,
may warrant the conclusion that, as a matter of
fact, the managing member was duly authorised
to make the acknowledgment on behalf of all.
Narayana Ayyar v. Venkataramaxa Ayy\r
(1902) . . . I. L. R. 25 Mad. 220

Mivil Procedure

Code (Act XIV of 1882), s. 50. In reply to a letter
enclosing a bill for work done, the defendant wrote.
" The bill glanced over is incorrect ; large amounts
have been A\Tongly introduced. I will first have
the work examined although I know that the whole
of the work is not yet finished ; then I will examine
the estimates, and, after- deducting what has to be
deducted, I vnW see what is due." Held, that the
\\Titing was not an acknowledgment of liability
\\'ithin the meaning of s. 19 of the Limitation Act
(XV of 1877). Green v. Humphreys, L. P. 26 Gh.
D. 474, referred to. Under s. .50 of the Civil Pro-
cedure Code, the plaintiff cannot take advantage
of any ground of exemption from the law of limita-
tion, which has not been set up in the i^laint.
Jogeshwar Roy v. Raj Narain IMtttkr f 19(i4)

I. L. R. 31 Calc. 195
s.e. 8 C. W. N. 168

100. . Acknoulrrlgmeht

of debt — Hat-chita, entry in — Signature, what is
sufficient — Customary mode — Intention of partie.^.
Where at the foot of certain entries made in a hat-
chita, which bore at its top the debtor'.*! name and
signature, the debtor A\Tote the words likhiiuti
khode (writer's self). Held, that this was the mode
adopted by the debtor of signing the hat-chita, and
as it appeared that it was the debtor's intention
thereby to acknowledge a debt, the entry consti-
tuted an acknowledgment within the meaning of
s. 19 of the Limitation Act. It is necessary in such
cases to consider the intention of the parties.
Gungadhar Rao v. Shidramapa, I. L. P. IS Bom.
586, applied. Andnrji Kalyanji v. Dulahh Jecvan,
I. L. P. 5 Bom. SS ; Jrkis'han Bnn„ji v. Bhowsnr
Bhcga Jtiha, I. L. R. 5 Bom. 89 ; Brojender Coomar
V. Bromomoyee, I. L. P. 4 Cal. S:15, referred to.

SaDASOOK AGARWALLAII v. BATK^^•T^T\ Natii

Basunia (1905) . . 9 C. W. N. 83

101. SB. 19, 20— Moitjage— Ac-
knowledgment of debt — Acknowledgment by pre-
decessor in interest — Part payment of interest. A
mortgaged several properties to the plaintiffs and
then sold one of them, property Nc. 3, to B, who
again mortgaged the property to C and in a more-

( 6907 )

DIGEST OF CASES.

{ 6908 )

LIMITATION ACT (XV.OF 1871)— contd.

— - s. 19 — contd.

1. ACKNOWLEDGMENT OF DEBTS— cow^cZ.

gage suit by C the property was sold and purchased
by D. A afterwards paid part of the principal as
well as of interest under the mortgage and made
acknowledgment of his liability under it. D con-
tended that any such acknowledgment as against
her was of no avail. Held, that under ss. 19 and
20 of the Limitation Act the acknowledgment as
well as the payments were sufficient to keep the
debt alive against the property No. 8. Chinnerij
V. Evans', 11 H. L. C. 115, referred to. Krishna
Chandra Saha v. Bhairab Chandra S,\ha (1905)
I. L. B. 32 Calc. 1077
9 C. W. N. 868

102.

Acknowledgment

of debt— Promise to pay implied— Acknowledgment
of right to have accounts settled — Debtor and
creditor— Debtor appointed executor of will of

creditor Suit to recover balance of account—

TAmitation Act, Sch. II, Arts. 57, 85— Question
of fact or Uw— Concurrent findings— Ground of
speciallappeal. An acknowle Igment of Uab.lity,
should the balance turn out to be against the
person ma'dnt^ it, is a sufficient acknowledgment
under s. 19 of the Limitation Act (XV of 1877),
and there is no distinction in this respect
between the English and the Indian law.
Sitayya v. Rangareddi, I. L. R. 10 Mad. 259, Prance
V Sympson, 1 Kay 678, and Banner v. Berridge,
L. R. 18 Ch. D. 254 : 50 L. J. Ch. D. 630, approved.
yAn unconditional acknowledgment implies a pro-
mise to pay, and the same meaning attaches M'here
there is an acknowledgment of a right to have
accounts settled, and no qualification of the natural
inference that, whoever is the creditor, shall be
paid when the condition is performed by the ascer-
tamment of a balance in favour of the claimant.
In re Rivers Steam Navigation Company, L. R. 6
Ch. App. 822, 828, followed. The respondeiit was
named sa one of the executors of the will of a
creditor represented by the appellant, and was one
of tie applicants for probate. In the probate
proceedings in answer to an objection that he was
indebted t3 the estate, the respondent in a petition
si<'ned by him, stated that " for the last five years
lie had open and current accounts with the deceased ;
the alleged indebtedness does not affect his right to
apply for probate " Held, a sufficient acknowledg-
ment within s. 19 of the Limitation Act. The
application for probate was rejected on the ground
that the applicants were not legally appointed
executors. The defendant admitted having in-
termeddled with the estate of the testator, but the
Courts in India concurrently found that he did not
do so for the reason that as he had not been duly
appointed executor he could not have so inter-
meddled as to make himself responsible as execu-
tor. Held, that this decision was not a question of
fact but one of law and was therefore open to
I'econsideration by the Judicial Committee, on

LIMITATION ACT (XV OF 1877)~con<d.

s. 19 — contd.

1. ACKNOWLEDGMENT OF DEBTS— con<4.

appeal. Maniram Seth v. Seth P^ui'chand (19(»()

I. L. R. 33 Calc. 104'

s.e. 10 C. W. N. 87<

L. R. 33 I. A. IQl

103.

Acknowledgmen

by Receiver — Receiver, if agent — Admission — 1
pel — Bond fide prosecution of claim in Adminisir'a
lion suit — Claimant directed to institute fresh suit-
Limitation — Exclusion of time. A Receiver a}
pointed in an administration suit instituted by .
creditor of a deceased person against his execute;
is not an agent of the executor within the meaning
of s. 19, Limitation Act. He is the agent and ai
officer of the Court. But when in such a suii
another creditor of the estate applied to rank at
such and the Receiver submitted a statement ir
the presence of the executor admitting the debt
due to the applicant, but the Court, afte rsome time
directed the applicant to bring a fresh «i;ut
but on the suit being instituted he was met wit!
the plea that the claim was barred by limitation
Held, that, in the face of the admission made in hi;
presence, the executor was estopped from settinj.
up the Statute of Limitation as a bar. That, it
any case, s. 14 of the Limitation Act applied anc
the time during which the plaintiff was bond fidi
prosecuting his claim in the administration sui'
should he excluded in computing the period oi
limitation. Baij Nath Ram Goenka v. HE^
Chfnder Bose (1906) . . 10 C. W. N. 95t

104. ss, 19 and 22— Acknowledy

ment — Party defendant, addition of — Mortgagee-
Suit — Release of a portion of mortgaged property
validity of — Release in writing — Registration Ac
{III of 1877), s. 17 — Attestation, whether assent. Ai
acknowledgment of a debt to be operative unde:
s. 19 of the Limitation Act must be addressed o;
communicated to the creditor or to some one oi
his behalf. Mylapore v. Yeokay, L. R. 14 I. A
168 I. L. R. 14 Calc. 301, followed ; and Maha
lakshmi Bai v. Firm of Nageshwar, I. L. R. 10 Bom
71, Sukhamoni v. Ishan Chunder, L R. 25 1. A. 9-5
I. L. R. 25 Calc. 814, Madhushadan v. Brajaiiath, '
B. L. R. 299, Durgopal v. Kashee Ram, 3 W. B. 3
and Nizamuddin v. Muhammad AH, 4 Mad. H- C
385, referred to. Where a Court adds a person an
a defendant to the suit not upon its own motion
but upon an application by the plaintiff, s. 22 o)
the Limitation Act does apply and the suit a;
against the added defendant shall be deemed t<i
have been instituted, when he was so made a party
Girish Chunder v. Dwarkanath, I. L. R. 24 Calc. 640
and Fakera Pasban v. Bibee Azimunnissa, I. L. R
27 Calc. 540, distinguished. Where subsequent U.
the date of a mortgage, different persons had be-
come interested in different fragments of the equit}
of redemption, all that the owner of any portion o!
the equity of redemption is entitled to ask is, that
not more than a rateable part of the mortgage debi
should be thrown upon the property in his hands

( 6909 )

DKiEST OF CASES.

( 6910 )

lilMITATION ACT (XV OF ISID—Contd.

S. 19— contd.

1. ACKNOWLEDGMENT OF DEBTS— coritd.

The mortgagees cannot claim to throw the entire
burden upon a portion of the mortgaged premises,
because by reason of their own laches they have
lost their remedy against the remainder. Hari
Kissen v. Valiat Ho-'ssein, I. L. R. 30 Calc. 75-5, and
Surjiram v. Barhum Deo, 2 C. L. J. 202, referred
to. Where, therefore, a purchaser of a portion of
the equity of redemption is added as a party
(defendant) not by the Court, but upon an applica-
tion by the mortgagee after the prescribed period
if limitation, although the mortgage suit is barred
as against the added defendant, yet such mort-
gagee is entitled to succeed in respect of a pro-
portionate part of his claim as against the remain-
ing owners of the equity of redemption. Bam
Sebuk V. Ram Lall, I. L. R. 6 Calc. 816, and Ra7tt
Doyal V. Junmenjoy, I. L. R. 14 Calc. 791, distin-
guished. A release, when in writing, in order to
be operative in law, must be registered under s. 17
of the Registration Act, where the amount of the
claim to interest in immoveable property, which is
extinguished by the release, is of the value of one
hundred rupees or upwards. Safdar All v. Lach-
man Da.s, I. L. R. 2 All. 554, Basawa v. Kalkapa,
I. L. R. 2 Bom. 489, Bhyrub v. Kakechundcr, 16
W. R. 56, and Nandalal v. Gurditta, 2 B. L. R. 615,
referred to. A mere attestation of a deed does
not necessarily import an assent to all the recitals
contained therein. Chundr.r Dutt v. Bhagwat
Narain, 3 C. W. N. 207, followed. A mortgagee
can not release from his claim a portion of the
properties comprised in his security so as to pre-
judice the rights of others, who might have already
acquired an interest in the released portion. Sur-
jiram V. Barham Deo, 2 C. L. J. 202, and Surjiram
V. Barhamdeo, 1 C. L. J. 357, followed. Jai
Gohind V. Jairam, 18 All. W. N. 420, and Sheo
Promd V. Behari Lai, I. L. R. 25 All. 79, dissented
from. Imam Ali v. Baij Nath Ram Sahu (in06)
I. Ij. R. 33 Calc. 613
s.e. 10 C. W. K". 551

105. ss. 19, 20 ; Sch. II, Arts.

59, QO— Limitation — Stiit to recover money de-
jiosited on current account — Loan — Deposit — Ac-
knowledgment. Held, that a suit to recover
money deposited with a banker on a current
account is governed as to limitation by Art. 59,
and not byAi-t. CO, of the ^cond Schedule to the
Indian Limitation Act, t877. Piaray Lai v.
Elizabeth Berkeley, F. A. No. 96 of 1882, decided
iDn the 4th April, 1885, followed. In order that
m acknowledgment of a debt should be effectual
jto save limitation under s. 19 of the Indian Limit-
ation Act, it must be signed by the person to be
bound thereby. Similarly a part payment of the
principal of a debt must appear in the handwriting
l^f the person making the part payment and not
jin that of any other person, however authorized.
Held, also, that the mei-e crediting of interest in a
banker's books cannot be regarded, for the purpose

LIMITATION" ACT XV OP 1877)— contd.

s. 19— contd.

1. ACKNOWLEDGMENT OF DEBTS— contd.

of saving limitation, as equivalent to a payment
of interest. Dhakam Das v. Ganga Davi f 1907)

I. L. R. 29 All. 773

106.

Acknowledg-

ment— Essentials of a valid acknowledgment — Ac-
knowledgment contained in a written statement —
It need not he addressed to any one. On the 11th
July 1900, a decree was passed against the
defendant directing him to pay a certain amount
in fixed instalments, and the whole amount
became payable on default of paying three
instalments. The plaintiff presented an applica-
tion on the 14th July, 1903, for execution of the
decree for the whole amount alleging that the
default contemplated had occurred. To this the
defendant submitted a written statement signed
by himself, bearing date the 28th September,
1903, wherein he contended that the decree
for the whole amount could not be executed, inas-
much as with reference to the second instalment
he had deposited its amount with a third person
and had given a notice to the plaintiff asking him
to take the amount from the third person. As to
the third instalment, his submission was that he
had no means to pay its amount then and time
should therefore be granted to him. The Court
held that three defaults had not occurred and
dismissed the darkhast. On the 24th September,
1906, the plaintiff' gave another darkhast to recover
the amount of the aforesaid two instalments, which
remained unpaid. The Subordinate Judge dis-
missed the darkhast as time-baiTed. Held, that
the statement by the defendant as to the second
instalment was an acknowledgment of liability
within the meaning of s. 19 of the Limitation Act
(XV of 1877). Held, further, that the statement
by the defendant as to the third instalment that he
was unable to pay and that he would pay, if time
were given to hini, was a distinct acknowledgment
of his liability. Held, therefore, that the second
darkhast was within time. There is nothing in the
language of s. 19 of the Limitation Act (XV of 1S77)
to justify the narrow interpretation that the
acknowledgment under the section must be ad-
dressed to the creditor or some one on his l)ohalf.
Shriniwas v. Narhar (1908)

I. Ii. R. 32 Bom. 296

107.

Limitation —

Acknowledgment of debt — Ouardian and minor —
Capacity of naturcd guardian to acknowledge a
debt on behalf of his ward. ^eW, byBANERJi and
RiciL\RD> J.J. (Stanley, C. J., dissentiente),
that when a guardian acting within the sco]ie of his
authority and for the benefit of a minor makes
an acknowledgment of a debt, such acknowledg-
ment is by an agent duly authorized in this
behalf and gives a fresh start for the computa-
tion of limitation. Tilak Singh v. Chhutta Singh,
I. L. R. 26 All. 598 ; dissented from. Chinnya
Nayudu v. Gurunatham Chetti, I. L. R. 5 Mad.

DIGEST OF CASES.

( 6912 )

LIMIT ATION ACT (XV OF 1677)— contd.

s. 19 — contd.

1. ACKNOWLEDGMENT OP DEBTS— conc/(i.

169; Sobhanadri Appa Rau v. Sriramulu, I. L. R.
17 Mad. 221 ; Kailasa Padiachi v. Ponnukannu
Add, 1. L. R. IS Mad. 456, Subramania Ayyar
\. Arumuga Clietty, I. L. R. 26 Mad. 330, Anna/pa-
gauda Tammangauda v. Sangadigyapa, 1. L. R. 26
Bom. 221, Narendra Nath Sarkar v. Rai Charan
Haldar, I. L. R. 29 Calc. 647; Beti Maharani v. The
Collector of Etawah, 1. L. R. 17 All. 198 ; Kamla
Kuar V. Ear Sahai, All. Weekly Notes {18SS), 1S7,
Chinnery v. Evans, 11 H. L. C. US, referred to.
Per Stanley, C. J. — The relation of guardian and
ward resembles rather that of trustee and cestui
que trust than that of principal and agent. A
guardian cannot be considered the authorized agent
of his ward for the purpose of making an acknow-
ledgment of a debt on behalf of his ward within the
meaning of s. 19 of the Limitation Act. Matthew v.
Brise, 14 Beav. 341, Markwick v. Hardingham, 15
Ch. D. 349 ; Beti Maharani v. Collector of Etawah,

1. L. R. 17 All. 19S, and Chinnery v. Evans, 11
H. L. C. 115, referred to. Ram Chakan Das v.
Gaya Prasad (1908) I. L. R. 30 All. 422

2. ACKNOWLEDGMENTtOF OTHER RIGHTS.

1. Acknowledgment of title to

immoveable property. An acknowledgment
of title to immoveable property gives a new
starting point for limitation under s. 19 of the
Limitation Act (XV of 1877). Jagabandhtt
Bhattachakjee v. Haeimohon Roy

1 C. W. N. 569

2. Acknowledgment of differ-
ent tenancy — Landlord and tenant. Where
a landlord sued to recover arrears of rent
due from a^tenant who entered as a mulgeni tenant
for one year and continued in possession without
executing a fresh agreement: — Held, that an ad-
mission/made in writing and signed by the tenant,
that he held the land as mulgeni or permanent
tenant at a lower rent, was not an acknowledg-
ment of the landlord's right, which, under s. 19 of
the Limitation Act, 1877, would entitle the land-
lord to recover arrears of rent for three years prior
to the date of the admission. Venk-\taeama-
NAYYA V. Seinivasa Ratj I. L. R. 6 Mad. 182

; 3. _ Redemption of Mortgage —

Right to redeem mortgage. Where a mortgage has
not legally been put an end to, the mortgagor (or
his" representatives) is entitled to come into Court
and ask to be allowed to redeem, provided sixty
years have not elapsed since the last recognition
by the mortgagee of the plaintiff's title to the
mortgaged property."" Rukjeet Naeain Singh v.
Shttreefoonissa . . 10 W. B. 478

Suit for redemp-

LIMITATION ACT (XV of 1877)— conftf.

S. IQ— Contd.

2. ACKNOWLEDGMENT OF OTHER
RIGHTS— confd.

been made in writing in 1838 : — Held, that a suit t
redeem in 1878 was barred. The words " in th
meantime " in cl. 15 of s. 1 of the Limitation Ac
(XIV of 1859) mean within sixty years from th
date of the mortgage. Vassudavan Nambudri v
Mussa Kutti, 6 Mad. 13S, followed. Daiacharn
V. Sarfraz AH, I. L. R. 1. All. 425, dissented fron;
MuKKANNi V. Mannan. I. L. R. 5 Mad. 185

KaMMANA KaLLACHERI IlLATH VASSUDAVi

Nambudri v. Chembeakandy Mttssa Ktjtty

6 Mad. 13)

Mahomed Abdool Ruzzah v. Asif Ali Shah
3 N. W. lU

Narain Lall v. Lalla Nund Kjshoee Lall
19 W. R. li

5. Limitation Ac.

s. 21, and Sch. II, Art. 1 4 S— Limitation Act (XIV c
1S59), s. l,cl. 15 — Right of rede7nption of mortgage-
Acknowledgment of title of mortgagor. Held, that a
acknowledgment of the title of the mortgagor mad
by one only of two mortgagees would not avail t
save the mortgagor's right of redemption bein
barred by limitation, where the mortgage was
joint mortgage and n ,t capable if being ledeemet
piecemeal. Bhogill v. Amritlal, I. L. R. 17 Bon,
173, rsferred to. Dhaema v. Balmakund

I. L. R. 18 All. 455

Suit to rtdeci
plainti

tion of mortgage — Acknowledgment. A mortgage
deed'having l)een executed in 1761 and an acknow-
ledgment of the mortgagor's right to redeem having

mortgage — Acknowledgment. The fii'st
claimed to redeem a mortgage to defendant.'
ancestor for R320. Defendants pleaded that th
mortgage was tor B-2,336-4, and redeemable only a
the pleasure of the mortgagee. They also pleade
the Limitation Act. The original Court decree
redemption on payment of the amount stated b
defendants. The lower Appellate Court reverse
that decree and dismissed the suit as barred. Eeh
reversing the decree of the lower Appellate Couil
that; an acknowledgment by the mortgp-gees of th
mortgagor's title, sufficient to take the case out c
the statute, was evidenced by their ^\Titten answf
in suit No. 238 of 1830 and by the answer in origimi
suit No. 441 of 1861, as recited in the judgment i
that suit, although the right to redeem and th
amount of the mortgage were denied, and thi
acknowledgments were not made before thosj
suits were brought. The Act for the limitation ci
suits does not require that the acknowledgment cj
the title of a mortgagor should be made to ani
particular person or at any pa.rticular time befor
the institution of the suit in wliich the bar is p!ca<!
ed. Naeeaina Tantei v. Ukkoma 6 Mad. 26

7. Suit for redemftM

of mortgage— Limitation Act {XIV of 1859), s. J
cl. {15) — Acknowledgment — Secondary evidence-]
Beng. Reg. IV of 1793. In a suit instituted on th
20th of February, 1893, to redeem a mortgag:

6913

DIGEST OF CASES.

( 6914 )

LIMITATION ACT (XV OF 1877)— contJ.

s. 19 — conhl.

2. ACKNOWLEDGMENT OF OTHER RIGHTS
— contd.

i-xecuted on the 17th October, 1788, it must be first
<een whether the suit was barred under Act XIV of
1859, inasmuch as, if it was so barred, nothing in
he subsequent Acts could revive it. Where sixty
•ears have elapsed ivom the dale of an usufructuary
nortgagc, a suit by the mortgagor to recover pos-
essionof the mortgaged property is barred unless
I can be shown that there is an acknowledgment
•ned by the hand of the mortgagee himself to
ake the case out of the operation of the Act.
iUrhviee Bulsh Rotj v. Eiinjeet Ram Panday, 13
'. L. R, 177, followed. A mere statement in a
laint or written statement, Mhich is not proved
,) have been signed by the mortgagees, and which,
nder Bengal Regulation IV of 1793, Mas not
quired to be so signed, does not amiount to an
•knowledgment within the meaning of the above
lie. Sunder Das v. Fatimulunissa

1 c. w. nsr. 513

I Upheld on appeal to Privy Council in Fati-
LTULNissA Begum v. Sundar Das

I, L. R. 27 Gale. 1004

L. E. 27 I. A. 103

4 C. W. N. 565

Neiv

period- — ■

.viml of barred suit — Plaint — Receipt — Decree

. ent— Vakil— Mortgage— Redemption. The plaint-
is ancestor mortgaged a piece of land to the
; endants' ancestor in 1797, and placed him in
[ session as agreed upon. Three years afterwards
I h the mortgagor and the mortgagee went out
I the country. The mortgagor returning first
imed possession of the land ; the mortgagee
■ uning afterwards filed a suit in 1826 to recover
|-^'--ssion under the terms of tlie mortgage, and
> lining a decree in his favour, possession Mas
< ored to him by the Civil Court in 1827. When
jng delivery of the possession from the Court,
1 mortgagee passed to the officers of the Court a
(ipt m M'hich the mortgagee acknoM-ledgcd
li.ng received possession of the mortgaged land
■* irected by the decree. The plaintiff, the repre-
'■ative of the original mortgagor, on the 4th of
) -mheT, 1880, sued the defendant, the reprcsent-
V of the original mortgagee, to redeem the

* . Held, that the suit Mas" barred ; the receipt
Q-porating the decree by reference did not
l.ate as an acknowledgment of a mortgage
"listmg m 1827, so as to give to the mortgagor
t .1 P^""^. o^ limitation under s. 19 of Act XV
Jil- This section intends a distinct acknow-
Jtiuent of an existing liabilitv or jural relation
o in acknowledgment without knoMkdac that
a«i.arty is admitting anvthinur. Dharma Vithal

• PviKD Sadvalkar I. L. R. 8 Bom. 99

J,< — — and Art. 1^8— Redemption of

^ age— Acknowledgment of th
9( by mortgagee's agent.

mortgagor's title
Held, following the

VOL. Ill

LIMITATION ACT (XV OF l877)-coMf.
— S. IQ— contd.

2. ACKNOWLEDGMENT OF OTHER RIGHTS
— contd.

decision of the Privy Council in Luchnee Buksh
Roy V. Runjeit Ram Panday, 13 B. L. R. 177
under Act XIV of 1859, that an acknowledgment
of the title of the mortgagor or of this right of
redemption signed by the mortgagee's accent is not
sufficient under art. 148, sch. II of Act IX of 1871,
to create a ncM- period of limitation. Kahm^ni
BiBi V. HuLASA Ku.\R . I. L. R. 1 All, 642

.^"•, : Acknouiedgment,

of title prior to Act XIV of 1S59. In a suit for
redemption of landed property the plaintiffs, iep:e-
sentatives of the mortgagors, relied on an acknow-
ledgment of the mortgagors' title contained in an
entry in the settlement records of the year 1841,
Mhich Mas attested by the representatives of the
mortgages, defendants in the suit, and the lover
Courts having differed as to whether the ackno\\--
ledgment Mas sufficient Mithout proof that it Mas
made Mithin the sixty years from date of the
alleged mortgage -.-Held, that, inasmuch as there
Mas no limitation to suits for redemi^tion of mort-
gage of landed property prior to Act XIV of 1859,
it M as unnecessary to ascertain Mhen the mortgage
Mas effected, the acknoMledgment of 1841 being an
acknowledgment of a right still subsisting, and one
Mhich fulfilled the requirements of art. 148, sch. II,
Act IX of 1871. Data Chand v. Sarfraz Ali

I. li. R. 1 All. 425
11« ■ " Suit for redemp-
tion of mortgage— Acknowledgment of title of mort-
gagor or of his right to redee^n. Where the defend-
ants attested as correct the record-of-rights pre-
pared at a settlement with them of an estate in
which they M-ere described as mortgagees of the
estate, but M'hich did not mention the name of the
mortgagor, — Held (Spankie, J., dissenting), that
there was an acknowledgment of the mortgagor's
right to redeem M'ithin the meaning of art. 148,
sch. n. Act IX of 1871.— Per Pearson, J. That
there was also an acknowledgment of the mort-
gagor's title. Per Spankie, J. (contra). Data
Chand v. Sakfeaz Ah I. L. R. 1 All. 117
But see Mukkanni v. Manan Bhatta

I. L. R. 5 Mad. 182
12. Suit for redemp-
tion of mortgage — Acknowledgment of title of mort-
gagor or of his right to redeem. An acknowledgment
to be within the meaning of art. 148, sch. II, Act
IX of 1871, must be an acknowledgment of a
present existing title in the mortgagor. An ac-
knowledgment of the original making of the mort-
gage-deed and of possession having been taken
under it, coupled with the allegation of the subse-
quent execution of two other deeds practically
superseding the mortgage and altering the relation
of the parties, contained in a written statement filed
previous to the expiry of the sixty years allowed,
is not a sufficient acknowledgment within the

10 L

( 6915 )

DIGEST OF CASES.

( 6916 )

LIMITATION ACT (XV OF 1817)— contd.
■ s. 19— contd.

2. ACKNOWLEDGMENT OF OTHER RIGHTS

— contd.

meaning of that article, so as ,to prevent limitation
from opertating. Ram Das v. Birjnundun Das
alias Laloo Baboo

I. Ii. R. 9 Gale. 616 : 12 C. L. R. 284

13. Acknowledgment

of liability — Will of mortgagee — Suit for redemption.
In a suit to redeem a kanom of 1805 the plaintiff
set up in bar of limitation an acknowledgment con-
tained in the will of the deceased mortgagee, who
thereby devised to his son lands therein described
as held by him on kanom. The mortgagor's name
was not mentioned, nor the date of the kanom, nor
was there any further description of the land which,
however, was admitted to be the land in question
in the suit. Held, that the will constituted an
acknowledgment under s. 19. Uppi Hajiz;. Mam-
ma van . . I. L, R. 16 Mad. 366

14. Acknowledgment of liabil-
ity— Suit for possesion. Acknowledgment of
liability, in order to be within the meaning of
s. 19 of the Limitation Act, must be an acknow-
ledgment of liability to the person who is seeking to
recover possession, or some person through whom
he claims. Myl.a.pore Iyasawmy Vy^pooky
MooDLiAR V. Yeo Kay. I, L. R. 14 Gale. 801

L. R. 14 I. A. 168

15.

Acknowledgment made to

third party. A written acknowledgment by the
mortgagee of the title of the mortgagor, or of
his right of redemption, was sufficient within the
meaning of cl. 15, s. I, Act XIV of 1859, though
made to a third party and not the person entitled
to the land. Dtjb Gopal Singh v. Kasheebam
Panday. 3 "W. R. 3

16.

A ck no icledg me n t

ij third person. An acknowledgment of title undei
cl. 15, s. 1 of Act XIV of 1859", need not be made
to the mortgagor or his representatives ; any
acknowledgment in writing signed by the mortgagee
is sufficient. Ahiloji valad Khandoji v. Dongar
Harichand Gujar 5 Bom. A. G. 176

Unicha Khandyib Ktjnhi Kxjtti Nair v. Valia

PiDIGAIL KtJNHAMED KutTY MaRACCAR

4 Mad. 359
Ali Hossein v. Ramdyal 3 JN". "W. 78

17. Entry in wajib-ul-arz— .4c-

knowledgment. An entry in a wajib-ul-arz is not
tantamount to an acknowledgment on the part
of the defendant, mortgagee, of the plaintiff's
proprietary right so as to allow him to sue
M-ithin sixty years from that date as provided by
cl. 15, s. 1, Act XIV of 1859. Chttjjoo Singh v.
Nazir Hosseix ... 2 Agra. 227

18. Acknowledgment by vakil—

A solemn and bond fide acknowledgment in writ-
ing of the mortgage and riglit of the mort-
gagor, made by the mortgagee for the purpose of a

LIMITATION AGT (XV OF 1877)— coi
s. 19— contd.

2. ACKNOWLEDGMENT OF OTHER RIQI

— Contd.

suit through his vakil, whose act and statem
for the purpose of the suit were within the scop
his authoritv according to the law then in fc
(cl. 1, s. 21 of Regulation XXVII of 1814), and \\
to be considered as if his client were person!
present and consenting, was a sufficient ackn^
ledgment in ^\Titing of the mortgagor's right
redeam as provided by cl. 15, s. 1, Act XIV of 18
and gave a fresh starting point to the mortg?
to sue for redemption within sixty years from
date of such acknowledgment. Such ackn(
ledgment in winting need not be made directly
the party entitled, or, in other words, to the m(
gagor. EsREE Singh v. Bishesher Singh

3 Agra. S

19. Acknowledgment by Moi

tear — Usufructuary mortgage. Where sixty yt
have elapsed from the date of a usufructu
mortgage, a suit by the mortgagor to reco
possession of the mortsased property is barred
cl. 15, s. 1, Act XrV 1859. Where a moctga
signed a mooktearnama, in which he stated thai
would abide by any arguments which might
urged, and any documents which might be fi
by the mooktear thereby appointed, and the mc
tear subsequently filed a written statement sig
by himself alone, in which he admitted the m I
gagor's title. Held, that the Mooktearnama i
written statement could not be read togetheu
amounting to an acknowledgment sufficient,
satisfv the requirements of cl. 15, s. 1, Act XI
1859." Luchmee Buksh Roy v. Runjeet )
Panday 13 B. L. R. P. G. 177: 20 W. R. i

s. c. in lower Court

12 "W. E.

See Raioiani Bibi v. Hulasa Ktjar

I. L. R. 1 AIL I!

Acceptance of sale cf^i

fieate — Achnoidrdgmcut of title. The accept
of a sile certificate, granted by a Zillah Clt
in 1824 to the purchaser of a mortgagee's inti^
in land sold by auction in satisfaction of a d( ''
is not an acknowledgment, by the purchaser, o ^*
title of the mortgagor Avhich will satisfy the 'Q
ditions of s. 19 of the Limitation Act and gi '
fresh starting point from which limitation vnXt^
for redemption. Ambala Vaveri ^Ianakel Rj^^-'

SOMAYAJIPAD V. NaDUVAKAT KrISHNA PODU I-

LL. R. 6Mad.a«

21.

Execution of decrees— ''

lion. S. 4, Act XIV of 1859, is not appU">l^
to the execution of decrees. Thus an incid't^'
mention by a judgment-debtor, in a pet>>Q
filed by him in another case in which an^ei
decree-holder had taken out execution, tha Q^
owed money to the decree-holder in the pre"*
case, was held not to be an admission withiij^nB

( C917 )

DICIEST OF CASES.

( 6918 )

LIMITATION ACT (XV OF 1877)— contd.
s. 19 — contd.

2. ACKNOWLEDGMENT OF OTHER RIGHTS

— contd.

meaning of that section to keep the decree alive

LCCHMAN KOONWAR V. LUCHMUN BhUKUT

7 W. R. 79

LIMITATION ACT (XV OF 1811)— contd.

22.

Execution of

■lecree — Petition. The word " debt " in s. 20 of
Act IX of 1871 applies only to a liability for which
I. SUit may be brought, and does not include a
ability for which judgment has been obtained :
.■erefore, where the last application for execution
if a decree had been made on the 14th of December,
1872, and a notice under s. 216, Act VIII of 1859,
ssued on the 19th of January, 1873, and on the
!Sth of April, 1873, the judgment-debtor filed a
n'tition notifying part payment, which petition
las signed by the judgment-creditor : — Held, in
|n application for execution made on the 27th of
\pril, 1876, that further execution was barred by
mitation. Kally Prosonno Hazea v. Heera
<AL MuNDLE . I. Ii. R. 2 Calc. 468

23. Execution of

icree. — Petition. An application was made ' for
xecution of a decree against the heir of the judg-
lent-debtor on the 26th July, 1871. On the 30th
ovember of the same year the debtor applied by
■tition for two months' time. Held, that the
-'tition was not an acknowledgment \\ithi;i the
eaning of s. 20 of Act IX of 1871, so as to save
mitation. Kally Prosonno Hazra v. Heera Lai
bundle, I. L. R. 2 Cal. 46S, followed. Ishana
.shu. V. Grija Kant Lahiry Chowdhry

3 C. L. R. 572

24. _ Acknoivledgment

icritiwj of debt by judgment-debtor. An acknow-

iJgment in writing of a debt by a judgment-
■btor is not such an acknowledgment as is contem-
^ated by Act IX of 1871, s. 20, and will not there-
ke operate to extend the period of limitation in
jVour of the judgment-creditor. The " debt "
Iferred to in that section is not a judgment-debt,
; t a liability'to pay money for which a suit can
; brought. Mungol Prashad Dichit v. Shama
4ST0 Lahory Chowdhry
j I. L. R. 4 Cale. 708

j*6" " Execution of

yee— Acknoivledgment in writing. An application
'j the execution of a decree is an application in
ijpect of a " right "—that is to say, the " right of
;• decree-holder to execution," within the mean-
>( of s. 19 of Act XV of 1877. An appUcation in
vting by a judgment-debtor for the postponement
<|i sale in the execution of the decree and the issue
< a fresh notification of sale is " an acknowledg-
>|nt of liabihty " within the meaning of the same
'jbon, in respect of such " right." Ramhit R ai
' bATGuR Rai I. L. R. 3 All. 247

*Kution of decree.

Application for

The provisions of s. 19 of the

s. 19— contd.

2. ACKNOWLEDGMENT OF OTHER RIGHTS

— contd.

Limitation Act, 1877, are not applicable to appli-
cations in execution of decrees. The ruling of the
Allahabad Full Bench in Ramhit Rai v. Satgur Rai,
1. L. R., 3 All. 247, dissented from. Ra.ma v.
Venkatesa . , I. L. R. 5 Mad. 171

27. Application for

execution of decree— Acknowledgment. An applica-
tion for the execution of a decree is an application
in respect of a " right " within the meaning of s. 19,
At 'XV of 1877, and a petition made by a judg-
ment-debtor, and signed by his vakil, praj-ing
for additional time "for payment of the amount
of a decree, constitutes an " acknowledgment of
liabihty " within the meaning of that section, and
a new period of limitation should be computed
from the date of such petition in order to ascertain
whether the execution of the decree is barred or
not under the provisions of art. 179, sch. II of the
Limitation Act. Ramhit Rai v. Satgur Rai, I. L.
R., 3 All. 247, and Ram Coomar Kur v. Jakur Ali,
I. L. R. ,S Calc. 716, followed. Toree Mahomed v.
Mahomed Mahboob

1. Ii. R. 9 Calc. 738 : 13 C. L. R. 91

28. — Exectition of

decree — Acknowledgment in loriting — Part-payment
—Act XV of 1877, s. 20, and sch. II, No. 179. A
decree for money, dated the 24th June, 1S78,
directed that a certain instalment should be paid
on the 22nd July, 1878, and a like instalment on
the 20th December, 1878, and the balance by cer-
tain instalments commencing from a ccrtain'date,
and that, in case of default, the decree-holder might
realize the whole amount of the decree. The
instalments were not paid at the fixed dates, but
part-payments of the amount of the decree were
made by the judgment-debtor fiom time to time
out of Court. On the 7th May, 1879, he made a
part-payment and an endorsement on the decree
to the following effect : " I, G, judgment-debtor of
this decree, have myself paid R — , and have en-
dorsed this payment on the decree in my own
handwriting." On the 5th September, 1881, the
decree-holder applied for execution of the whole
decree. Held bj' the Court, that the application
was governed by the rule contained in s. 19 of the
Limitation Act, 1877 ; that the endorsement made
by the judgment-debtor on the decree was an
acknowledgment of liability under the decree ; ar.d
that consequently the period if limitation for the
ai(plication should be computed from the time such
endor.-?ement was made, and the ajipiication was
thercfoie within time. Ramhit Rni v. Sat'/ur Rai,
I. L. R. 3 All. 247, followed, but with doubt. Per
Mahmood, j. — That following the ratio decidendi
in Ramhit Rai v. Satgur Rai, I. L. R. 3 All. 247, the
part-payment made and endoised on the decree
by the judgment-debtor fell within the terms of
s 20 of the Limitation Act, 1877. Asinutullah
Dalai V. Kally Churn Mitter, I. L. R. 7 Calc. J6",

10 L 2

( 6919 )

DIGEST OF CASES.

( 6920 )

LIMITATION ACT (XV OF 1877)— contd.
s. 19 — conid.

2 ACKNOWLEDGMENT OF OTHER RIGHTS

— contd.

distinguished. Also per Mahmood, J. — ^That it
was doubtful whether in this case the decree-holder
was bound to execute the whole decree when the
first default occurred, as the terms of the decree
apjjeared to give the decree-holder an option in the
matter, and therefore whether the application for
execution was barred beacuse it was made more
than three years after that date. Shib Dai v.
Kalka Prasad, I. L. B. 2 All. 443, distinguished.
Janki Prasad v. Ghulam Ali

I. r. E. 5 All. 20

29. and Art. 179 — Acknowledgment

in ivriting — Authority to sign acknowledgment. On
the 7th of December, 1877, additional time for pay-
ment of the amount of a decree, dated the 24th of
March, 1876, was granted to the judgment-debtor
upon a petition signed by his vakil. On the 4th
of December, 1880, a fresh ajjplication for execution
was made. Held, that it was not barred under Art.
179, Sch. II of Act XV of 1877, inasmuch as the
petition constituted an acknowledgment of liability
under s. 19 of the same Act, and a new period of
limitation began to run from the 7th of December,
1877. The object of the words " application in
respect of any property or right " in s. 19 is to
extend to the applications mentioned in sch. II
the same privilege as is accorded to suits. Ramhit
Rai V. Saigur Rai, I. L. R. 3 All. 247, approved of.
Ram Coomae Kur v. Jaklr Alt

I. L. R. 8 Gale. 716
10 C. L. R. 613

30.

Execution

decree — Contract superseding decree — Adjustme^rt of
decree — Certification — Civil Procedure Code, s. 258 —
Acknowledgment in ivriting. In the course of pro-
ceedings in execution of a decree, dated the 14th
June, 1878, the parties, on the 11th Januarj', 1881,
entered into an agreement, which was registered
and filed in the Covirt executing the decree. The
deed recited that the decree was under execution,
and that a mortgage-bond, dated the 1st December,
1873, in favour of the judgment-debtor by a third
party, had been attached and advertised for sale,
and that the decree-holder and judgment-debtor
had arranged the folio-wing method of ■ satisfying
the decree : That the judgment-debtor should
make over the said bond to the decree-holder, in
order that he might bring a suit thereon at his own
expense against the obligor, and realize the amount
secured by the bond, and out of the amount re-
alized satisfy the decree under execution, \nth
costs and future interest, together with all costs of
the suit to be brovight against the obligor, and to-
gether -ttith a sum due by the judgment-debtor to
the decree-holder under a note of hand for B250
•nath interest ; and other details which need not be
stated. On the same day that this deed was exe-
cuted the decree-holder filed a petition in the

LIMITATION ACT (XV OF 1877) -co/if

s. 19— co?j/<:/.

2. ACKNOWLEDGMENT OF OTHER RIQl
— contd.

Court, to the effect that under the agreemenl
arrangement had been made for payment of
judgment-debt by which the judgment-del
made over to him the bond advertised for sale
order that the petitioner should file a suit und(
at his oAvn cost against the obligor, and realize
debt due under the decree in execution with inte
and costs ; and he prayed that the sale to be •
that day might be postponed, and the applica
for execution struck off for the present, and
previous attachment maintained, and stated t;
after realization of the amount entered in the b
advertised for sale, an application for execiV
would be duly filed. On this the crder was that
execution case be struck off the file, and the atti
ment maintained. On the 24th December, li
the decree-holder applied for execution of
decree, alleging that the judgment-debtor
failed to make over the bond to him accordinj
the agreement. The judgment-debtor obje(
that the decree ^^■as no longer capable of execut
having been superseded by the agreement 'of
11th January, 1881, and that the application
barred by limitation, the previous application bi
dated the 9th November, 1880. Held, that ..
application was within time, inasmuch as \
acknowledgment in the deed of the 11th Janu >
1881, came ^^'ithin the terms of s. 19 of the Lim
tion Act, so as to originate a fresh period of lin u
tion in respect of the execution of the de •
Ghansham v. Mukha, I. L. R. 3 All. 320 ; J(k
Prasad v. GJiulam Ali, I. L. R. 5 All. 201 ; "
Ramhit Rai v. Satgur Rai, I. L. R. 3 All. ^
followed. Fateh Mohammad v. Gopal Das

I. L. E. 7 AIL «

31.

Decree parti':

favour of plaintiff ayid partly in favour of defendc -
Effect of application for execution by one part
to preventing limitation runtiing against the c ''
A obtained a decree against B for possession i<-
for R27 mesne profits. In execution he got po •
sion. On appeal, however, the decree was k
so far as it ordered possession to be given i
and the amount of mesne profits awarded
was reduced to R13-8-0. The appellate
was passed on the 6th June, 1889. On t!i
December, 1891, the defendant B applieii
restored to possession. That application
dropped, and on the 24th September, 1895. li< '
a second applicatic n. In the interval \v 1892 a
again in 1894 the plantiff had aijplicd for execu'^n
in respect of the K13-8-0 a\\arded to him. '"'
lo.ver Courts were of opinion that the applicijou
in 1895 by the defendant was not barred by Hri*"
tion by reason of the plaintiff's apphcation 'a
1892 and 1894, which they held to be an ack?"-
ledgment by the plaintiff of the defendant's 4"^^
to execute his part of the decree. Held (reve"^'

!1 )

DIGKS'i" OF CASKS.

( 6922 )

IMITATION ACT (XV OF \811)—c(mtd.
S. l9^Contd.

ACKNOWLEDGMENT OF OTHER RIGHTS
— contd.

e order of the lower Court), that the plaintiff's
iplicat^ons in 1892 and 1894 did not operate as an
iknowledgment so as to prevent limitation. Jeddi

•BRAY A VeXKATESH ShANBHOY V. RAMEAO •

\M Chandra Mukdeshvak

I. L. R. 22 Bom. 998

32. - - Acknowledgment in writ-

i^— Existing linhility— Proof. Though, under
19 of the Limitation Act, the exact nature of
e vic;ht or liability need not be disclosed by

0 aoknowledgment, and its exact nature may be
;ablished byev dence deJiors be writ<:en acknow-
Isment, yet the ackno\vledgment in itself should
iport that the person making it is under an exist -
: liabilitv at the time. Such liability cannot be
id into it by proof aliunde or by an admission
bsequently made by a party to a suit, in which
? acknowledgment is relied on as saving the bar

limitation. ""Ittappa^t Kttthtravattat Nayer
Nanu S.4STRI (1902) . I. L. R. 26 Mad. 34

33. Limitation — ,4c.

owkdgment of title — By whom such acknoicledg-
nt miy he made. S. 19 of the Indian Limita-
i;ii Act, 1877, does not require that the person
ij.king an acknowledgment should have an
icrest in the property in respect of which the
< cnowledgment was made at the time when the

1 cnowledgment was given : it ])resciibes that, if.
(are the period of limitation expires, an ac-
j iwledgment of liability or right has been
1 lie in writing signed by the parties against
\i m the property or right is claimed, a new
Ijiod of limitation will be computed from the
' e of the acknowledgment. Gagahandhu
l'(iUacharjee v. Harimohan Roy, 1 C W. N.
5i', referred to. Jugal, Kishore v. Fakhr-
vinni (1906) . . I. L. B. 29 AU. 90

14. Acknowledgment of exist-

€ 36 of mortgage assigning a wrong date
tireto— Limitation. Where parties. (h-lriuln,nts
t'l suit for redemption of a mortgage, had in a
I vious suit, in which it had been sought to eject
t tn as trespnssors. set up the existence of a
n -tsage, under which they alleged that they were
ii' possession, but had assigned, as was found by
t 'lower Appellate Court, a wTong date to such
n -teage : Held, that the mere attribution of a
wng date to the mortgage under which the
dl;ndants claimed to be in possessicn would
nj of itself prevent the acknowledgment so
lie by them from being a good aoknowledg-
njit for the purposes of s. 19 of the Limitation
- 1, 1877, in a subsequent suit for redemption of
< mortgage. Dip SiXG v. Giranp Stxgh (1004)

1 I. L. R. 26 All. 313

. '5. ^ Acknowledgment, effect of,

rixecution proceedings. S. 19 of tlie Limit-

LIMITATIOTST ACT (XV OF 1877)— <;on/i.

s. 19 — condd.

2. ACKNOWLEDGMENT OF OTHER RIGHTS
— concld.

ation Act is applicable to proceedings in exe-
cution of a decree. Ramhit Rai v. Satgur Rni,
I. L. R. 3 All. 247 ; Ram Coomar Kar v. Jakur AH,
I. L. R. S Calc. 716 ; Torce Mahomed v. Mahomfd
Mahood, I. L. R. 9 Calc. 730; Norendra Nath Pahar
V. Bhupendra Narain Roy, I. L. R. 23 Calc. 31 4,
followed. Rama Rau v. Venkaie-sa Bhartdmi,
I. L. R. 5 Mad. 171, dissented from. Muvgo
Prasad: Dichit v. Shama Kanto Lahiri Chowdhry,
I. L. R. 4 Calc. 708 ; Kalh) Prosonna Hazra v.
Heera Lai Mondol, I. L. R. 2 Calc. 468 ; Kadcr
Buksh Sarkar v. Gour Kishore Roy Choicdhry,
6 C. W. N. 766, explained and distinguished.

BhAGABATY ChAEAX CHTTKRABrRTY ?•. ASTirTOSH

Chattopadhaya (1904) . 8 C. W. K". 470
36. Requisites of a valid ac-
knowledgment— Transfer of Property Act (1 V
of 1SS2). s. .55 (.5) {d)— Where no contract to the
contrary, liability to pay public charges attaches to
vendee on the passing of property — Condition prece-
dent to liability. Under s. 55 (5) {d) of the Transfer
of Property Act, the liability of the vendee to pay
the public charges on the property sold attaches
in the absencs of a contract to the contrary, as an
incident of the transfer and is complete when
the property passes, ^^1lere the adjustment of
matters, which form part, but are not the essence
and substance of the contract, cannot be carried
out in the mode contemplated, the Court vciW do
whatever may be right and proper to effect such r>n
adjustment itself. ^ Dinham v. Bradford, L. R. 5
Ch. App. 519, referred to. Where a deed of sale
provides that the vendee shall pay " the amount
due, as per sub-division of the peshkush due to
Government " and the deed contains no other words
to show that the sub-division was a pre-requisite to
the vendee's liability, the mere use of the words as
per sub-division does not make it such and. where
no sub-di vision is effected, and the vendor pays the
whole peshkush, the Court will ascertain, as
between the vendor and vendee, the proportion
payable by the latter and direct payment thereof.
An acknowledgment of a conditional liability v.ill
not, under s. 19 of the Limitation Act, give a fresh
start as long as the condition remains unfulfilled.
There must be an unqualified admission or an
admis-sion qualified by a condition, which is ful-
filled. Aritnachella'Row Bah-adck r. Ranoiah
Appa Row BAHAnrR (190fi)

I. li. R. 29 Mad. 519

8. 20 (1871, 8. 21)—

See ante, s. 19 — Acexowledoment of

Debts . I. L. R. 2 Bom. 221

i See Civil Procedure CooE. 1S82. s. 258-

I. L. R. 26 All. 36

See Limitation.

I. li. R. 31 All. 495 ; 519

( 6923 )

DIGEST OF CASES.

( 6924 )

LIMITATION (ACT XV OF ISn) -^ontd.

s. 20 — contd.

LMITATION ACT (XV OF 1877)- conW,
s. 20— contd.

j_ - Case under Punjab

Code before Limitation Act, 1859. In a case
under the Punjab Code before the Limitation Act
of 1859 came into operation in Oudh it was
held by the Privy Council that payments made by
an agent upon account, and continued monthly
for several months, ought to be regarded as tanta-
mount at least to, if not correctly described as, a
running account, and were therefore part-payments
which amounted to "a partial satisfaction of
demand," whereby the period of hmitation was
renewed. Mttkkum Lall v. Imtiaz-ood-Dowlah

5 W. K. P. C. 18 : 1 Ind. Jur. N. S. 142
10 Moo. I. A. 362

See GowRA Bebee v. Kissen Misser

•1 Ind. Jur. N". S. 224
and PoTiTPABUN Sen v. Chunder Caunt Moo-
KERJEE . . . 1 Ind Jur. N. S. 329

Under the Act of 1859, part-payment was not an
admission of a debt, though evidenced by writing.
Mtjhamad Janula v. Vexkatanayar

2 Mad. 79

IcvARA Das v. Richardson . 2 Mad. 84
Kristna Row v. Hachapa Sugapa

2 Mad. 307

Madho Singh v. Thakoor Pershad

5 N. W. 35

2. Prescribed period.

Two of the sons out of a joint Mitakshara family,
consisting of a father and three sons and the widow
and sons of a deceased son, and carrying on business
in partnership, sued to recover money due on
a hath-chitta, dated Uth December 1876, the last
payment made and entered by the defendant
being on the 20th July 1877 ; no time was fixed
for payment of the monej^ so that it became pay-
able on the date of the hath-chitta. The suit was
instituted on the 19th July 1880 and came on for
hearing on the 2Gth of July, when an objection
was taken that all the parties who ought to sue
were not on the record. On the application of the
original plaintiffs, the names of the father and the
tlurd son were then added, and the plaintiffs were
described as surviving partners of the deceased
son. At the time the additional plaintiffs were
made parties the suit was, as regards them, barred
by hmitation. Held, that the suit, if all the plaint-
iffs had originally joined in suing, would not have
been barred by s. 20 of Act XV of 1877. The
words " prescribed period " in that section mean,
not the period prescribed for the payment of the
debt, but the prescribed period of limitation.
Ramsebtjk v. Ramlal Koondoo

I. L. R. 6 Calc. 815
8 C. L. R. 457

In the matter of Mongola Koiborto v. Annoda
Ram . . . . 12 C. L. R. 277

See LtrvAR Chtjnilal Ichhakam v. Luvar Tri-
BHOVAN Laldas . I. L. R. 5 Bom. 688

Part-payment

principal — Payment in kind. A payment may
made not only in the current coin of the realm, bi
in any other medium that the creditor may choo
to accept. Where goods are delivered by t
debtor and taken by the creditor in payme
either of principal or interest as such, such delive
would be a good payment of principal or intere;
as the case may be, so as to extend the period
limitation under s. 20 of the Limitation Act (XV
1877). Ragho Shitaeam v. Hari

I. L. R. 24 Bom. 6

4, ^ Payment of j

terest. S. 21 of Act IX of 1871 has no appHcati.
where the payments of interest admitted wc
made after the expiration of the period prescrib
for the repayment of the loan. Tariney Chu
NuNDY V. Abdxjr Rohoman . 2 C. L. R. 3'

5. . Payment of .

terest — Payment rtuide before Act came into operatic
The exception of payment of interest contained
s. 21, Act IX of 1871, is not confined to. pa
ments made after that Act came into force, I
apphes also to payments made before that da.
Teagaraya Mudali v. Mariyappa Pillai

I. L. R. 1 Mad. 2,

Bond — Payment

interest — Adjustment of accounts. Suit to reco :
the principal sum and one year's interest due on
bond, dated the 11th March 1866. By the term.^l
the bond the rent of certain land was assigned )
the lender'as security for interest. No date v
specified in the' bond for the payment of the pi-
cipal sum. The interest was regularly paid up :
October 1871, and the present suit was brought i
June 1874. Held, on special appeal, by Hol
WAY, J., that assuming that the period of hni'
tion was three years, and that it had run out bi i
before action brought and before Act IX of bl
came into operation, s. 21 of that Act operated:
save the action ; that at the period of that law cc ■
ing into force there was still a contractual rii
existing, and that the right of action was re^to
by the payment of interest. Vencatachella Mudi
v. Sheshagherri Rau, 7 Mad. 283, and Moka{<
Naganna v. Pedda Narappa, 7 Mad. 288, disl
guished. Held, by Morgan, C.J., that no quest
of limitation arose. That the lender having b'
constituted by the bond a trustee and receivei ■
the rents and profits of land, it was only on'
adjustment of his accounts that the pnnci ^
became payable. Valia Tambtxratti v- V^
Rayan . . . I. L. R. 1 Mad. S-

7^ — Payment of '

terest— Contract in writing. The defendant '
different times made payments to the plain
who was his creditor, in reduction of t^e gem'
balance of account against him, but without
timating that any of such paj^ments was to «
appropriated in satisfaction of the interest due
his debt. Held, that there had been no payn^'

( 6925 )

DIGEST OF CASES.

( G92G

LIMITATION ACT (XV OF 1871)— contd.

S. 20— contd.

of interest, " as such," by the defendant so as to
bring the case within cl. 1 of s. 21 of the Limitation
Act (IX of 1871), and that the plaintiff's claim was
barred. Haxmantalal Motichand v. Rambabai
I. li. K. 3 Bom. 198

8. Receipt of rent —

Payment of interest — Mortgage. In 1858 land was
mortgaged to the plaintiff with possession for a
term of five j-ears, and in 1861 the defendant, the
Tiorlgagor, took a lease of the land from the plaint-
It under which he paid rent until 1870-71. The
uiortgage-debt was repaj-able on the expiry of the
term. Plaintiff brought the suit out of which this
appeal arose to recover the debt from the mort-
gagor. It was pleaded that the suit was barred by
imitation, to which plaintiff rephed that the receipt
>f rent was in fact a payment of interest, arid that
rem the last payment of interest a new period
)f limitation arose. Held, that, the case being
,'overned by the provisions of Act IX of 1871, the
myment of rent under an agreement entirely
ndependent of the original mortgage could not
)e regarded as a payment of interest. Umjier
>UTTi V. Abdul Kadar . I. L. B. 2 Mad. 165

9. ■ Payment of in-

erest — Prescribed period — Extension of period. The
ivords " i)rescribed period," used in s. 20 of the
imitation Act, 1877, mean the period prescribed
)y the Act. The contention that only one exten-
ion of the period of hmitation is given by payment
f interest is unfounded. Venkataratnam v.
vamayya . , I. L. R. 11 Mad. 218

10. Payment of inter-

ill — Entry on account of interest i?i debtors' books in
Wesence of plaintiff. The plaintiffs, who were mem-
jers of the Dalvadi community, sued in 1883 to
!?cover from the defendant the sum of R2,611-.3-6
js found credited to their account in 1880 by the
'efendants' father, with whom the communitv had
;)dged a sum of R2,320 in 1874. They alleged
iiat the sum was lodged on the condition that it

as to be returned with interest on demand. It
ppeared that small sums were paid by K to the
laintiffs from time to time, and entries of interest
I ere made in the defendants' books as being credit-
:l to the plaintiff's. The defendants contended
lat the suit was barred. For the plaintiffs it was
|)nt€nded that the entry of interest in the defend-
|nts' book was made in the plaintiffs' presence and
jmounted to a pavment of interest within the

leaning of s. 20 of tlie Limitation Act (XV of 1 877).
I'eW, that such an entry did not amount to pay-

ent of interest within the meaning of the section

' as to save Hmitation. Nothing took place

luch could be regarded as equivalent to payment

interest. Ichha Dhanji v. Natha

I. Ij. R. 13 Bom. 338

11« Payment of in-

rest as such — Mortgage — Payment of rents to mort-
\\gte in lieu of interest on debt — Deed of assignment

owing payment of rent in lieu of interest — Admis-

LIMITATION ACT (XV OF 1877)- c&ntd.

a. 20—contd.

sibility of deed in evidence— Registration Act {III of
1S77), ss. 3 and 17. By a bond, dated the I5th
July 1872. A assigned to B the " vahivat of
assessment " of certain lands belonging to him as
security fora loan of R 10,000. The bond pro nded
that B should receive the assessment, and, after
making certain payments, should retain the balance
in lieu of interest until the principal debt should be
repaid. The bond was nut registered. Th • as;ess-
ment was duly received by B until April 1887.
In February 1890, B filed this suit to recover the
principal sum from A personally, relinquishing
his claim against the land, as the bond was not
registered. A pleaded limitation. B contended
that the receipt of the assessment in lieu of interest
was a payment of " interest as such " within the
meaning of s. 20 of the Limitation Act (XV of
1877), and that the last of such paj-ments ha\-ing
been made within three years Ijefore suit, his claim
was not barred. Held, that the suit was barred by
limitation. The assignment of the " valiivat of
assessment " contained in the bond was an assign-
ment of a benefit arising out of immoveable pro-
perty within the meaning of ss. 17 and 3 of the
Registration Act (III of 18'/7) or else a mortgage ;
ancl in either case the bond could not lie admitted
in evidence, as it was not registered. But it was
only by reading the terms of the bond that the
Court could gather that the assessment was to be
received in lieu of interest. This would be to admit
indirectly the provisions of the bond in evidence.
Apart from the bond, there was no evidence that
the plaintiff {B) had been paid " interest as such "
within three years of the filing of the suit bj^ the
duly authorized agents of the defendants, and the
claim was therefore barred.' Venkaji Babaji
Naik v. Shidramapa Balapa Desai

I. Ij. R. 19 Bom. 663
12. — Payment of in-

terest on a debt — Authority of a previous guardian of
a debtor remaining in management after the debtor^s
majorijy — Hindu laiv — Guardian. The mother and
guardian of an infant borrowed money for his
expenses and executed a bond in 1886 to secure the
repayment. In a suit by the obligee in 1S92, it
appcaod that the mother had remained in manage-
ment of her son's affairs and had paid interest
on the debt after ho had attained majority- and less
than three years before the institution of the suit.
Held, that the mother and guardian was a " person
authorized to pay " interest on behalf of the debtor
within the meaning of s. 20 of the Limitation Act,
and that the suit was not barred by lapse of time.
Sobhanadri Appa Rau v. Sriramulu, I. L. R. 17
Mad. 221, referred to. Kailasa Pai>ia( hi v. Pun-
nukaxnu Achi . I. li. B. 18 Mad. 456

13.

Payment of in-

terest 05 such — Credit of interest made in accounts of
defendants. In a suit brought by a creditor against
cei-tain persons to whom she had lent money on
interest : — Held, that, in order to save the bar of
limitation, a mere credit of interest entered in the

( 6927 )

DIGEST OF CASES.

( 6928 )

LIMITATION ACT (XV OF 1877)— <on{d.

s. 20—C(mtd.

accounts of the defendants was not a sufficient pay-
ment of " interest as such " under s. 20, limitation
Act, to save the bar. Kollipara Pullamma v.
Maddttla Tatayya . I. L. R. 19 Mad. 340

14. Acknowledgment

of liability — Interest paid on debt — Contrihution —
Joi"f debtor.^. By a payment into Court under an
order on account of decrees for rent and revenue in
arrear, due to the landlord zamindar from the
jcint oAvners of an under-tenure, their estate was
saved from sale. In respect of a proportionate share
of liability for money raised for this purpose one
of the joint owners became liable to be sued by
another of them for contribution ; and a question
arose as to the application of Art. 61 of Sch. 11 of
the Limitation Act, 1877. More than three years
before this suit all the joint oA^Tiers had filed in
CoTirt a petition for the appointment of a manager
of their estate who should, out of its profits, pay
debts and interest to creditors from whom had been
borrowed the money for the payment into Court.
Whilst the three years from the date of that ac-
knowledgment were running and at a date less
than three years before this suit, interest on part
Ol the money borrowed had been paid by the
manager whom the appellant, jointly mth the other
co-owners of the estate, had authorized as her
agent to pay it. Held, that this interest, being
clearly a payment in exoneration, pro tanto of the
plaintiff's liability, was such a payment as was
contemplated by s. 20, and gave a ncAv departure
for the period of limitation. Sukhamoni Chow-
dhrani v. Ishan Chunder Roy

I. li. R. 25 Calc. 844

Ii. R. 25 I. A. 95

2 C. W. N. 402

15. Payment of in-
terest as such— Settlement of accounts. To

the requirements of s. 20 of the Limitation Act
(XV of 1877), the payment of principal or interest
as such need not be in money. It may be in goods
or by a settlement of accounts between the j^arties ;
but the payment must be of such a nature that it
would be a complete answer to a suit brought by
the creditor to recover the amount. Where a
debtor consents that money due by liim for interest
should be credited to the account of the principal
and the interest balance reduced b^" that amount
such a consent is really tantamount to a payment
of interest ; it is as if the debtor makes the pay-
ment and the creditor advances it again. When
both parties agree to such a settlement, and the
accounts are so adjusted, the adjustment operates
as a payment of interest under s. 20 of the Limit
ation Act (XV of 1877). Plaintiffs used to lend
moneys to the defendants' firm. The accounts of
the dealings between the parties were settled from
time to time. On the occasion of each settlement,
the interest was calculated up to the date of the
Bettlement, and the amount found due was credited
to the interest account, and debited to the account
of the principal in the creditors' books, and the

LIMITATION ACT (XV OF 1877 )—contd.

s. 20-

debited

contd.

amount so debited was thenceforward treated a:
principal for calculation of future interest. Corre
spending entries were made in the debtors' bookf?
Hdd, that such a settlement of accounts constitutcc
a payment of interest as such within the meanic
of s. 20 of the Limitation Act (XV of 1877). Kaeiv
APPA V. Rachapa . I. L. R. 24 Bom. 49!

16. Suit for money-
Payment on account of principal within the perick
of limitation — Evidence of such payment by writin
made after period expired. The obligee of a regi
tered mortgage-bond, dated the SOth January 187<.
sued in February 1891 to recover from the obhgo
the principal and interest remaining due there
under. In bar of limitation|the plaintiff rehe<
on entries of part-paj'ments from time to time i
an account written by the defendant. These part
payments were made at such times as to keepaliv
the obHgee's right of suit up to the date of the la^
of them. The last of these payments was mad
on a date which was less than six years (the perioi
of limitation for the suit) before the date of institc
tion of the suit, but it was not entered in th
defendants' accounts until after the date when th
claim would otherwise have been barred by Umit
ation. Held, that the provisions of the Limitatio
Act, s. 20, were satisfied, and that the suit \va
not barred by limitation. Vexkatasubbu i
Appusundram . . I. L, R. 17 Mad. 9

17.

Mortgage — Su

for arrears of rent. Where a kanom was granted i
18.58 for five years to secure repaj^ment of a loai
and a lease made in 1865 to the grantor of tl
kanom bj' the kanom-holder and rent paid und>
the lease until 1871 : — Held, that a suit brought!
1877 to recover the kanom amount and an'ears (
rent for seven years was barred by limitation e:
cept as to three years' arrears of rent. Palli^
gatha Ummer Kutti v. Abdul Kadar

I. L. R. 3 Mad. 5

18. Entry of accou

stated by debtor in creditor's books — Implied contrai
Anentryof an account stated, made by a debtor:
his creditor's books, is not a contract in writii
within the meaning of Act IX of 1871, s. 2
Amritlal Mansuk v. Maniklal Jetha

10 Bom. 37

This case was followed in Hanmantmal Mot
CHAND V. Rambabat . I. L, R. 3 Bom. 1£
where it was held that, consequently, the paymen
made by the defendant on account were not su'
jmyments of the principal of the debt due by him
would bar the operation of the Act.

See Ranchoddas Nathubhai v. Jeycha^
Khusal Chand . . I. L. R. 8 Bom. 4C

19.

Payments

wards adjusted account. Where, subsequently

the adjustment of his account with the plaintif

the defendant had been credited with amounts

( 6929 )

DIGEST OF CASES.

( 6930 )

LIMITATION ACT (XV OF 1817)— confd.

8. 20 — contd.

Eiirplusproceedsof goodsand of a Inindi. Jicld that
such amounts were not payments within the mean-
ing of s. 20 of the Limitation Act. Naeeonji
Bhijiji v. Mttgnietjm Chandaji

I. X.. B. 6 Bom. 103

20. • Su7n realized hy

execution-sale — Part-fayment. A sum realized by
an execution-sale cannot be considered a part-pay-
ment under s. 21, Act IX of 1871, so as to give a
new period of limitation. Rttghoonath Doss v.
^HTROMOKEE Pat Mohadebee . 24 W. R. 20

Bemtjl Doss v. Ikbal Nakain

25 W. E. 249

Ramchandka Ganesh v. Devba

I. L.B. e Bom. 626

21, — Part-payment of

,rincipal of bond — Endorsement, facts which must
ippear in. To satisf}' the conditions of s. 20 of the
/Jmitation Act, the endorsement in the hand-
vriting of the person making a part-payment of
l,e principal of a bond need not show the appro-
riation of the payment to principal, but only the
act of the payment. Jada Ankainima v. Nadim-
Jalle Rama . • I. L. B. 6 Mad. 281

22, -^ Part-payment of

rincipal — Endorsement — Hetndwriting of payer —

Mnrksman. In s. 20 of the Limitation Act, 1877,
lie condition that the fact of payment in the case
f part-payment of the principal of a debt must
ppear in the handwriting of the person making
le same, is satisfied if the paj-er signs or affixes
I is mark beneath an endorsement not written by
im. Madabhushi Seshacharltj v. Singaea
.ESHAYA . . I. L. B. 7 Mad, 55

23. Part-payment of

rincipal — Endorsement — Handwriting of payer —
larksman. The mark of the paj^er subscribed to
;n endorfement not in the handwriting of the

aver will satisfy the proviso to s. 20 of the Limit-
tion Act, 1877, which requires that the fact of the
|iyment of part of the principal of a debt made by
'le debtor or his agent duh' authorized in that
i?half shall appear in the handwriting of the
j'rson making the payment, in order that a new
I'riod of limitation may run from the date of such
lyment. Ellapa Nayak i: Anttmati Goundan
I. L, B. 7 Mad, 76

24.

Part-payment of

incipal of debt — Endorsement of cheque by debtor.
jTiere the only evidence in the handwriting of the
I'btor of the part-pajment of the principal of a
:'bt was the endorsement of a cheque to the cre-
|tor : — Held, that such endorsement did not satisfy
I e conditions of s. 20 of the Limitation Act so as
ji give rise to a new period of limitation from the
j te of such endorsement. Mackenzie r. Thiett-
pNGADATHAN . , I, L. B. 9 Mad. 271

25. Part-payment of

incipal of debt — " Person making the same " —
ode of creating new period of limitation by part-

lilMITATION ACT (XV OF 1877)— confe^.

- s. 20— contd.
payment. In order to create a new period of limit-
ation under the proviso to s. 20 of the Limitation
Act (XV of 1877), the fact of part-payment of the
principal of a debt must appear in the hand-
writing of the person making the part-payment
and not in that of any other person, however
authorized. Bhugabuth Thakur \. Madhuh Kiisio
^ett, I. L. R. 23 Calc. 553 note, ovcruled. Mtjkhi

HaJI RAEMUTTrLLA V. CoVEEJI BnrJA

1 1. L. B, 23 Calc, 546

(Contra) BnrGABrTH Ti-akfr v. :MADnuB

Keisto Sett . I, L, B. 23 Calc, 553 note

26. Part-payment of

principal of debt. An insolvent in debt to a Bank
had j^iven a promissory note for the full amount of
the debt due. He also gave, b}- way of collateral
security for the promissory note and for any futur >
advances, a letter of lien over his stock-in-trade,
etc., and undertook at the time to execute, when-
ever called upon to do so, an assignment of his
business. This undertaking was never carried out.
Two j-ears and three months from the date of the
loan the insolvent had addressed a letter to the
Bank enclosing a cheque for R600, and requesting
that it should be placed to the credit of the loan
account. Held, that the payment of R600 was a
part-payment, and that the fact of such part-pay-
ment appealed in the hand\\riting of the insolvent
within the meaning of s. 20 of the Limitation Act .
In the matter of Summees I. L.' B. 23 Calc, 592

27. Part-payment of

debt — Endorsement of hundi by debtor. Where the
only evidence in the handwriting of the debtor of
the part-payment of the principal of a debt was the
endorsement of a hundi to the creditor : — Held,
that such endor-ement was not sufficient \\ithin the
meaning of s. 20 of Act XV of 1877 to give a new
starting point for limitation. Mackenzie v. Tirtt-
vengadathan, I. L. R. 9 Mad. 271, referred to.
Ram Chandab v. Chaxdi Peasad

I. li. B. 19 All, 307

28. Unregistered mort-
gage— Receipt of produce in lieu of interest. Re-
ceipt cf the produce of land held under a deed
of mortgage required to be, but not registered,
cannot be deemed to be a payment for the purpose
of s. 20 of the Limitation Act. 1877. Pn iianpi r.
Kandasami . . I, L. B. 7 Mad. 539

29. -'gent, nutliority

of, to make payment. An agent may be impliedly
authorized within the meaning of s. 20 of the Limit-
ation Act to make a payment of interest or principal
before the expiration of the period prescribed.
BiEJMOHUX Lall r. Rudea Perkash ^Iisseb

I. L. B, 17 Calc, 944

30,

Usufnictunry

mortgage — Pight of redemption. The last clause of
B. 20 of Act XV of 1877 docs not have the effect
of extending indefinitely the period vithin which a

( 6931 )

DIGEST OF CASES.

( 6932 )

IiIMITATIOlSr ACT (XV OF 1877) -conid.

s. 20—co7itd.

usufructuary moitgase must be redeemed. Kaixu
V. Halki . . " . I. L. R. 18 All. 295

31.

Part-ixtyment of

principal. Per Banerjee, J. — In case of part-
payment of the principal under s. 20 of the Limit-
ation Act, it is not necessary' that the ^^Titing evi-
dencing the payment should, on the face of it, show-
expressly that the payment was made as such.
Mandardhar Aitch v. Secretary of State for
India (1901) .... 6 C. W. N. 218

Pait-payment-

Fact of such payment must appear in tcriting of
person making the payment. Under s. 20 of the
Limitation Act (XV of 1877), the fact of a part-
payment of the principal of a debt must appear in
the handwriting of the person making the paj'ment,
and not in the writing of another person. Josni
Bhaishakk.\r v. Bai Parvati (1901)

I. L. R. 26 Bom. 246

33.

Certificnfed guar-

dian, poiver nf — Authorized agent — Payment of in-
terest by certificated guardian, effect of. The certi-
ficated guardian of a minor is an agent duly
authorized to pay interest upon a debt due by the
minor within the meaning of s. 20 of the Limitation
Act (XV of 1877). Chhato Ram v. Bilto Ali,
I. L. R. 26 Calc. 51 ; and Maharana Shri Ranmal
Singji v. Vadilal Vakhat Chand, I. L. R. 20 Bom.
61, referred to. Narendra Nath Sarkar v. Rai
Charan Haldar (1902) I. L. B. 29 Gale. 647
s.e. 6 C. W. N. 729

34.

Indian Limita-

tion Act {XV of 1877), ss. 19, 20— Construction of
Statute — ''Debt,''' in s. 20, if includes judgment-debt—
Limitation Act, 1871, ss. 20, 21. The word ' debt,'
occurring in s. 20 of the Indian Limitation Act
does not refer to judgment-debts, but to debts
upon which an action can be brought. Therefore,
part-payment made by the judgment-debtor
subsequent to the decree cannot be taken cogniz-
ance of in determining the question whether an
application made in execution for the recover^' of
judgment-debts is barred by limitation. No real
change has been made in this respect by s. 20 of
the present Act as compared Mith s. 21 of the
Limitation Act of 1871. Kader Buksh Sarkar
V. GouR Kishore Ray Chowdhry (1902)

6 C. W. K". 766

35.

Guardian and

minor- — Payment of interest by mother as guardian
on behalf of her minor sons — Litnitation. Held,
that the payment by the mother and natural
guardian of minors of interest due upon a bond
executed by the father of the minors is not such a
payment as is contemplated by s. 20 of the Limit-
ation Act, 1897, and does not operate to give a
fresh starting point for limitation. Waiibun v.
Kadir Buksh, I. L. R. 13 Ca'c. 292, and MaJiarana
Shri Ranmalsingfi v. VadUnl Vakhalchand, I. L. R.

LIMITATION ACT (XV OF 1877)-co7i<rf.

s. 20— contd.

20 Bom. 61, followed. Kailasa Padiachi v. Pon
nukannu Achi, I. L. R. 18 Mad. 456, dissentec
from. TiLAK Singh v. Chhutta Singh (1901)

I. L. R. 26 AIL 59(

36. Payment of in

terest by principal — Liability of surety. The pay
ment of interest by the debtor within hmitatioi
does not give a fresh starting point for limitatioi
against the surety under s. 20 of the Limitatioi
Act (XV of 1877) even in the absence of a prohib'
tion by the surety against the paj-ment of interet
by the debtor on his account. Gopai. Daji ?
GoPAL BIN SoNU (1904) I. L. E. 28 Bom. 241

37.

A pplication

execute decree. The provisions of s. 20 of tb
Limitation Act are not applicable to application
in execution of a decree. Rama Rau, v. Venkatts
Bhandari, I. L. R. 5 Mad. 171, followed. Kuppi
SAMi Chetty v. Rungasami Pillai (1904)

I. L. R. 27 Mad. 60!

38. Part-paymeni-

Statement in writing not in debtor's hand — Debtor
marker beneath — Limitation. The* condition pn
scribed by s. 20 of the Limitation Act (XV of 187'
that part-payment of the principal debt shou!
appear in the handwriting cf the person makin
the same is satisfied, if the payer affixes his mai
beneath an endorsement not \vTitten by hin
Jamna v. Jaga Bhana (1904)

I. li. R. 28 Bom. 26

39.

Mortgage — Pai

payment — Payment by predecessor in interest. Tl
words of s. 20 cf the Limitation Act are general ai
there is nothing in it to indicate that the new peri(
of limitation created by it is only to operate again
the person making the payment. Where a pa
ment of part of the principal is made by a moi
gagor, who was at the time liable for the del
and the fact of the payment appears in his han
writing, the new period of limitation created by t
section would also take effect as against the pt
chaser, before the payment was made, of the equi'
of redemption in the mortgaged property under
money decree made against the mortgagor, whetl
the purchase was of the ^^ hole or only of part of su
property. Krishna Chandra Saha v. Bhait!
Chandra Saha, I. L. R. 32 Calc. 1077, follow.
Newbould v. Smith, 33 Ch. D. 127 : s.c. L. R- '
App. Cas. 423, referred to. DoJii Lal Sahu
Roshan Dobay (1906) I. L. R. 33 Calc. 12>

40.

Payment of

terest as such — Payment must be of such a nature?
to be a good defence to an action for the amou-
Where the payee of a promissory note ^as put'
possession of certain lands under an agreemi'
that he was to take the produce of the land =
interest, such receipt of produce will be a paymj''
of interest as such sufficient to satisfy the requi-

( 6933 )

DIGEST OF CASES.

( 6934 )

LIMITATION ACT (XV OF 1877)— cowfi.

s. 20 — contd.

ments of s. 20 of the Limitation Act, as it will be a
good defence to an action by the payee for the
interest. The payment contemplated by s. 20
need not necessarily be in money, but must be of
3uch a nature as to be a good defence to an action
for the amount due. KoUipara Pullamma v.
Maddula Tatayi/a, I. L. R. 19 Mad. 340, followed.
Kariyappa v. Rachappa, I. L. R. 24 Bom. 493,
referred to. Mvlan v. Axnavi Madan (190.5)

I. Ii. R. 29 Mad. 234

41.

Lim itntion — Exe-

cution of decree — Decree payable hy instalments —
Default in payment of instalments — Civil Procedure
Code, s. 257 A. A decree for sale on a mortgage made
the amount due thereunder payable by instalments
with a condition that, if default Mere made in pay-
ment of any instalment, the decree-holder might
execute for the whole amount at once. Default
was made, and the decree-holder exercised his
option and obtained an order absolute for recovery
of the whole amount due under the decree. On
the 2,3rd of February 1901, the decree-holder
applied for execution in respect of the whole amount
due and for sale of the mortgaged property. That
application was, however, dismissed on the 15th
May 1901, for default of prosecution. On the 1st
of July 1904, the decree-holder again applied for
execution. Held, that execution of the decree
was barred by limitation, and that the decree-
holder could not underB the circumstances pray in
aid two payments of R150 and R50 alleged to have
been received on the 11th of Maj' 1901, and the
15th of July 1901, respectively. Shankar Prasad
V. Jalpa Prasad, I. L. R. 16 All. 371, distinguished.
;Bhagwan Das v. Janki (190d)

I. L. R. 28 All. 249
Part -payment —

Endorsement not in debtor's hand, hut only signed hy
hnn — When debtor can ivrite, whether such signature
|!« sufficient to save limitation. Where a debtor can
iwrite, but an endorsement is -wTitten by another
, person and only signed by him, it is not an endorse-
ment, which is, as far as possible, in his hand-
, writing, and therefore it is not sufficient under the
jprovisions of s. 20 of the Limitation Act to create
ia new ijeriod of limitation. Mulchi Haji Rah-
MuUrdla v. Cororji Bh.uja, I. L. R. 23 Calc. 546,
referred to. Madahhusi Seska Charhi v. Sinqara
Seshayn, I. L. R. 7 Mad. 55, Ellappa Nayak v.
Annamalai Goundan, I. L. R. 7 Mad. 76, and Jamna
•y. Jaga Bhana, I. L. R. 28 Bom. 262, distinguished.
Saxti.shwar Mahanta v. Lakhikanta Mahanta
i;i908) . . . I. L. R. 35 Calc. 813

I 43. Appropriation of

payment — Payment of interest as such — Appropria-
\'ion of payment by creditor towards interest without
iiptcification bi/ debtor does not save limitation —
iConlract Act (IX of 1S72), s. 25 (3)— Fresh cause
bf action- Limitation. Under s. 20 of the Limita-
;tion Act, the payment of interest will save limit-
(ition when the payment is made as such, that

LIMITATION ACT (XV OF 1877)— contd.
s. 20— concld.

is to .say, the debtor has paid the amount with
the intention that it should be paid towards interest,
and there must be something to indicate
that intention. The mere approj)riation by the
creditor of these payments to interest is not such
an indication. A letter containing a i^romise to
pay a time-barred debt within one month is an
agreement such as is contemplated by s. 25, cl. (3),
Contract Act, and gives a fresh cause of action.
Muhammad Abdulla Khax v. Baxk Ixst.aj.ment
Co., Ld. (1909) . . I. L. R. 31 All. 495
44. Execution of de-
creed—Sale of judgment-debtor's property — Such sale
not part-payment so as to save limiUdion. In order
that the provisions of s. 20 of the Indian Limitation
Act, 1877, should apply in favour of the decree-
holders, it is necessary that the fact of part-pay-
ment of the principal of a debt .<<hou!d appear in
the handwriting of the debtois. Wheie, therefore,
some timber belonging to the judgment-debtors
was sold in execution, and the proceeds were applied
to satisfy the decree in part : Held, that this
was not a good payment «-ithin the meaning of
s. 20 of the Limitation Act: Oudh Bihaki Paxdi:
v. Maharir Sahai (1909) I. L. R. 31 All. 590

45.

Part-paytnent

of principal — Endorsement written hy another person
hut signed by debtor — Extension of period — Judg-
ment, appellate, not in accordance with law — Finding
of fact — Second appeal. When the debtor can
write, an endorsement as to payment of a part of
the principal money, written by another jjerson
but signed by the debtor himself is not sufficient
under the provisions of s. 20, Limitation Act, to
create a new period of limitation. Muhhi Haji
Rahmuttulla v. 'Cover ji Bhuja, I. L. R. 23 Calc.
546, api)lied in piinciple. Saxtishwau Mahaxta
v. Lakhik.vnta Mahaxta (1908)

13 C. W. N. 177

46. s. 20, Sch. II, Art. 148—

Limitation — Suit for redemption of a u<iifr"cluary
mortgage. Held, that s. 20 of the Limitation .\ct
does not apply to a suit for redemption of a usufruc-
tuary mortgage in such a manner a^^ to extend
indefinitely "the period of limitation, within «hich
such a suit must be filed. Kalla v. Hulki. I. L. R.
IS All. 295, and Khdanda Ram v. Jinda, Punj.
Re.c. (18^3) 115, followed. Jamna Prasad v. Gckla,
Weekly Notes (1894) 87. di.ssented from. Answab
HusAiN- V. I-Ai.Min Khax (1904)

I. L. R. 26 All. 167

8. 21 (1871, s. 20, expL 2 : 1859,

s. 4).—

See Partnership- Dis.s()LrTio\- of
P.ARTXEusHii' I. Ii. R. 26 Bom. 42

Acknowledament

hy partner. An acknowledgment by one partner
sufficient to sa%e limitation will not bind anotheu
partner who has not subscribed such acknowledg-

( 6935 )

DIGEST OF CASES.

LIMITATION" ACT (XV OF 1817)— contd.

s. 21~contd.

Benarsee Dass v. Khooshal

ment.

KnoosHAL C'htjnd v.

Chund.
Palmer

2 Agra, Ft. II, 170

Partnership

accounts. S. 20, Act IX of 1871, does not apply to
partnership accounts. Khoodee Ram Dutt v.
KiSHEN Chand Goi.eecha . 25 W. R, 145

Acl:noivled<jmcnt

given hy one partner when binding on the firm-
Partnership — Practice — PaHies — Same person both
plaintiff and defendant. The plaintiff, as heir of his
mother, sued a firm, in -nhich he was himself a
partner, to recover the amount of certain loans
vhich he alleged that his mother in her lifetime
had made to the said firm. The plaintiff ^\as made
a defendant in the suit along with the other
partners. The alleged loans Mere made on the
2nd November 1881 and the 12tb October 1882.
The present suit was not filed until December 1885.
The plaintiff, however, relied on an acknowledg-
ment signed in his mother's account book hy him-
self as partner in the firm on the 1st November
188;}. The first defendant did not appear, or put
in any defence. The second defendant pleaded
limitation, and alleged that, on the 2nd November
1880, prior to the date of the alleged loans he had
retired from the firm, and therefore was not liable.
From the evidence given at the hearing it appeared
that the business stopped, so far as bujnng and
selling and fresh trading were concerned at the
end of the year 1S81, and that subsequently to
that date the partners were occupied solely in
winding up the affairs of the fijm. Held, that,
under the circumstances, the acknov.ledgment
given by the plaintiff did not bind the other
partners, and that the claiai against them was
barred. If, at the time the acknowledgment was
given the firm had been a going concern, the plaint-
iff's authority to make such an acknowledgment
on behalf of the firm might have been presumed :
but in this case the btisiness had been closed, and
the partnership entirely dissolved. The presump-
tion, therefore, which arises in active partnership,
no longer existed, and there wa,s no evidence that
the plaintiff had b.een expressly authorized to act
for the other partners in maldrg the acknowledg-
ment. The meaning of the word " only " in s. 21
of the Limitation Act (XV of 1877), is that it must
also be shown that the partner signing the acknow-
ledgment had authority, express or implied, to do
So. In a going mercantile concern such agency is
to be presumed as an ordinary rule. Premji
Lupha v. Dossa Doongersey

I. L. R. 10 Bom. 358

4. — Acknotvledgment

signed by one of several partners. The word " onlv "
in s. 21 of the Limitation Act (XV of 1877) is not
to be treated as a surplusage. It means that the
mere WTiting or signing of an acknowledgment by
one partner does not necessarily of itself bind his
co-partne-, unless it can bs shown that he had

LIMITATION ACT (XV OF lQll)-conld.

s. 21 — concld.

otheruase power to bind that partner for the pur-
pose of maJiing such acknowledgment and in effect
purported so to bind him. Gadu Bibi v. Paesotam
I. L. R. 10 All. 418

5. Part-payment by

one partner will save limitation only if made under
authority from the other partners. A part-payment
by one partner of a going mercantile firm of a debt
due by the firm will not save the operation of
limitation under s. 21 of the Limitation Act XV
of 1877 against the other partners, in the absence
of evidence to show that, in the course of busi-
ness, the partner who made the payment had
authority to do so on behalf of the firm. Premii
Ludha V. Dossa Doongersey, I. L. R. 10 Bom. 358,
3G2, referred to. Vaxasubramaxia Pillai v.
Raman ANATHAN Chettiar (1908)

I. L. R. 32 Mad. 421

s. 22 (1871, s. 22)-

See Bengal Tenancy Act (VIII of 1885).
s. 106 . . 12 C. W. N. 8

See False Imprisonment.

I. L. R. 9 Bom. 1
See Hindu Law.

I. L. R. 33 Calc. 1079

See Limitation I. L. R. 34 Calc. 612
See Mahomedan Law — Dower.

12 C. W. M". 84

See Mesne Profits.

I. L. R. 33 Calc. 329

See Parties — Adding Parties to Si'its

—Plaintiffs 1. L. R. 14 All. 524

I. L. R. 17 Bom. 29 ; 413

See Parties — Adding Parties to Suits

— Defendants.

I. L. R. 32 Calc. 582

9 C. W. N. 421

11 C. W. K". 350

I. L. R. 35 Calc. 519

See Parties — Adding Parties to Suits

—Respondents I. L. R. 13 All. 78

I. L. R. 14 All. 154

-See Parties — Substitution of Parties

—Plaintiffs . 7 C. W. N. 817

See Plaint — Amendment of Pl.vint.

I, L. R. 16 Mad. 319

1. — Party added under

s. 73, Civil Procedure Code, 1S.59. AVhen ai
party was substituted or added as a defendant.;
under s. 73 of Act VIII of 1859, the suit was held
to be commenced against him at the time, and nof
before ; therefore, where A sued B as representative
of C for land, and more than twelve years aftei
the cause of action accrued found that B was not
in possession, but D, and by order of Court D wai

( 6937 )

DIGEST OF CASES.

( 6938 )

LIMITATION" ACT (XV OF 1817)— contd. LIMITATION ACT (XV OF 1817)— confJ.

-contd.

substituted as defendant : Held, that the claim
against D was barred. Raj Kishoree Dossee v.

BUDDEN" ChUXDER ShAW

2 Ind. Jur. N". S. 49 : 6 W. B. 298

No'DO GoPAL Roy v. Jaxkeeram Chucker-
BUTTY . . . . W. R. 1864, 316

EsHAX Chuxder Baxerjee v. Krlsto Gutty
Nag 14 W. R. 377

2. ^ Act XIV of 1S59

— Parties added after expiration of period of limit-
ation. A suit ■was held not to be barred by the
Limitation Act, 1859, as against parties added after
the expiration of the period allowed bj^ \a,w, provided
the plaint be filled against the original jDarties
prior to the expiration of such period. Issure-
PEESAiTD V. Urjooxloll . . 2 Hyde 248

Kalee Kishoee Chateejee v. Luckhee Debia
Chowdhkani . . . . 6 W. B. 172

3. Act XIV of 1859

— Suit hy ividow on behalf of minor son — Son after-
wards joined as pJaintiiJ. In 1864, a Hindu widow
having a minor son sued, in her own name and on
her own behalf, to recover certain immoveable pro-
perty. The action was brought on a lease which
expued in 1854. The defendant denied the lease,

I and contended that the suit should be dismissed, as
it could not be maintained b}' the widow in her own
name. In 1871, the son, who had in the meantime
attained his majority in 1865, was made a co-plaint-
iff on his own application. Held, that the suit ^^ as
barred, inasmuch as it must, if maintainable, be
deemed to have been instituted in 1871, when the
son was made a co-plaintiff, the plaint previously to
,that time having been in the \ndow's OMn name
land expressly on her o^^■n behalf. Held, also, that
making the son a co-plaintiff in 1871 could not
:::hange the character of the suit as it had existed
previous to that date, so as to defeat the law of
limitation. Held (by Pinhey, J.), that the minor
wag MTongly made a plaintiff in 1871. Dhurm Dass
fandey v. Sham Soondri Dahiah, 6 W. B. P. C.
i4, distinguished. Gopal Kashi v. Ra:ma Bai
5aheb Patvar ... 12 Bom. 17

i 4. Act IX of 1S71,

{!. i, and s. 22 — " Commenced," " Instituted " —
Added defendants — Suit for contribution of partner-
■hip account — Cause of action. Qucere : Whether
he word " commenced " in s. 22 of Act IX of 1871
,» equivalent to the word " instituted " in s. 1, and
[vhether s. 1 does not exclude from the operation of
jhe Act all suits instituted before 1st April 1873,
ven as to defendants added after that date. Sup-
losing the provisions of s. 22 of Act IX of 1871 to
,pply to defendants added by amendment subse-
uently to 1st April 1873, in a suit instituted before
hat date, such added defendants will, under the
|3nns of that section, and if that section does not
jPply, then under a general principle of law, be
jUowed to reckon the period of limitation on which
iiey rely from the date at which they were added.

s. 22— con/(f.

but the periods of limitatioik provided by Act IX of
1871 do not necessarily ap])ly to defendants so
added. The plaintiff and three of the defendants,
being four members of a partnership, consisting of
seven persons, borrowed, in January and February
1865, on acco\mt of the partneishij), from the
Commercial, Finance and Stock Exchange Corpora*-
tion, two sums of Rl, 21,614 and Rl,08,000, for
which they gave their joint and several promissory
notes, and shortly afterwards two of the partners
retired, leaving the plaintiff and the four defendants
alone constituting the firm. On 27th September
1865, the plaintiff and first defendant were sen-
tenced to transportation for life, and on loth April
1867 one of the other defendants Vjecame insolvent.
On 25th April 1867, the liquidators of the Commer-
cial, Finance and Stock Exchange Corporation
obtained a decree against the plaintiff and the three
defendants who had joined in the making of the
promissory notes for the amount due on their joint
and several promissory notes and costs. Iii March
1868, the immoveable and moveable property of
the plaintiff and the moveable property of the first
defendant were sold in execution, and the whole of
the proceeds of the plaintiff's immoveable property,
together with the balance of the proceeds of the
moveable properties of the plaintiff and first defend-
ant, after satisfj-ing thereout two prior decrees
against them, were applied in part satisfaction of
the decree of 25th April 1867, and the moneys so
recovered were distributed to the shareholders by
the liquidators, who, however, retained in their
hands such portion as would have been payable in
respect of the shares held by the judgment-debtors
and thus the whole decree was satisfied, leaving a
balance of R25,212. The distribution of assets
was made on 3rd April 1869, and the fiual dividend
to shareholders other than the judsment-debtors
paid on 3rd August 1869. The two defendants,
other than the first and the insolvent, took the bene-
fit of Act XXVIII of 1865, and obtained their
discharge in April and December 1869. The ])]aint-
iff therefore sued the first defendant alone on 18th
March 1873 as contributory for the satisfaction of
the joint decree, but subscquenth-, by amendment
made on the 6th February 1874, added the other
defendants, and prayed for a decree that he was
entitled to receive and apjiropriate the balance of
R 25,212, and that the first defendant should pay to
the plaintiff, the balance of the moneys paid by him
in excess of his share in satisfying the decree of 25th
April 1867, with interest, after deducting three-
fourths of the sum of R25,212. on that, if necessary,
the partnership accounts might be taken, and the
plaintiff be paid such sums as might be found to be
due to him. Hell, fir.-t, that the period of limita-
tion as to all the defendants was that provided bv
Act XIV of 1859, whether the suit was to be treated
as one for a partnership account, or one for contri-
bution of an ascertained sum. Sicondh/, that as to
the first defendant, the period of limitation was to
be reckoned back from ISth 3klarch 1873. Thirdly,

( 6939 )

DIGEST OP CASES.

( 6940 )

LIMITATION ACT (XV OF 1877)— contd.

s. 22— contd.

that as to the added defendants, the period of hmita-
tion was to be reckoned back from 6th February,
1674. Fourthly, that the plaintiff's cause of action
arose in April 1868, when his property ^^as sold and
applied in satisfaction of the joint decree of 25th
April 1867, and not on the date of the decree itself.
Dayal Jairaj v. Khatav Ladha , 12 Bom. 97

"JSiibstitution of

heirs of decree-holder. In a suit to set aside the sale
of certain lands which had been attached and sold
by a decree-holder as the property of his debtor,
plaintiff brought his action against the decree-holder
and a party ^^'hom he supposed to be the auction-
purchaser. Subsequently, finding that his sup-
position had been erroneous, he applied to have
real piirchaser made a party, and the heirs cf the
decree-holder (who had died) substituted as defend-
ants. Held, that the suit against the heirs was not
barred by lapse of time, as it was originally brought
within the period of limitation against the decree-
holder, of whose death the plaintiff first learnt the
news from the return made to the summons. Sree
KiSHEN Chowdhry V. Ram Kisto Bhuttacharjee
10 W. R. 317
6. and Art. 60 — Adding parly as

defendant. On 2nd August 1872, A K filed a plaint
against M H and M R, in which he alleged that on
1st April 1870, M R had given a hundi for R500
for value received, to A K ; that on 27th March
1871, M H purchased this hundi from A K, promis-
ing to pay him R534 for it ; that M H gave the .
hundi to his brother I H for the purpose of obtain-
ing paiyment of the amount from 31 R ; and that
/ B. subsequently informed A K that the hundi had
been lost. A K accordingly prayed that the de-
fendants 31 H and 31 R might be decreed to pay
him R534 with profit and interest. 31 H denied
that he had purchased the hundi from A K, who, he
alleged, had given the^hundi to I H for the jjurpose
of getting it cashed. 31 R admitted that he had
executed the hundi and had given it to A K for
R500. He further alleged that it had been present-
ed to him for payment by / H, to whom he had
paid the amount with interest on 31st March 1871,
and he produced the hundi mth a receipt, purport-
ing to be by I E indorsed on it. The trying
Judge, after settlement of the issues, on 25th June
1874, added 7 H as a party defendant. / H alleged
that A K had given him the hundi for the purjjose
of getting it cashed, denied the paj^ment by 31 R,
alleged the indorsement on the hundi to be a for-
gery, and pleaded limitation. Held, with refer-
ence to s. 22 of Act IX of 1871, that the law of
limitation applicable to the suit, so far a,s I H was
concerned, was Sch. II, Art. 60 of that Act, and
that, therefore, if the payment by 31 Rto I H were
not proved to have been made within three years
before 25th June 1874, the day on which / H was
added as a defendant, the suit as against him was
barred. Dayal Jairaj v. Khatav Ladha, 12 Bom.
97, and Chinnasami Iyengar v. Gopalacharry, 7

LIMITATION- ACT (XV OF 1877)-contd.

s. 22— contd.

3Iad. 392, dissented from. Abdul Karim v
Manji Hansraj . . I. L. R. 1 Bom. 295

But see Issurepersaud s. Urjoon Lali.

2 Hyde 248

7. Adding plaintiffs

whose suit is barred. Where the original plaint-
iffs could only enforce their claim in conjunction
M-ith the added plaintiffs, and the added plaintiffs
were barred by s. 22 of Act XV of 1877 : Held,
that the claim of the original plaintiffs was also
barred. Boydonath Bag v. Grish Chunder Roy,
I. L. R. 3 Calc. 26, dissented from. Ramsebue r.
Ram Lall Koondoo

I. Ii. R. 6 Calc. 815 : 8 C. L. R. 457

Parties — Civil Pro-

cedure Code, ss. 27 and 32 — Institution of suits-
Change of parties. The change of parties as plaint-
iffs in conformity with the provisions of s. 27 of
the Civil Procedure Code does not give rise to such
a question of limitation as arises upon the addition
of a new person as a defendant under s. 32. SuBO-
Disi Debi v. Kumar Ganoda Kant Roy Bahadct,
I. L. R. 14 Gale, 400

9. Joi7it purchase-
Suit against one of the purchasers — Addition of other
purchaser as defendant — Effect of suit as regards tin
latter being barred by limitation. P, on the 12tl-
April 1880, instituted a suit against Z claiming tc
enforce a right of pre-emption in respect of the sak
of a share of an undivided estate to the latter anc
his minor brother A jointly, under an instrument
dated the 12th April 1879. On the 3rd May 1880
A was made a defendant to such suit, Z beim
appointed guardian for the suit for him. HcU
that, inasmuch as such suit, as regards A, M'as be
yond time, and as the only relief which could b(
granted therein to P was the invalidation of th(
joint sale to Z and A, such suit, even admitting i
was within time'as regards Z, was not maintain
able. Habib-ul-lah v. Achaibar Pandey

I. L. R. 4 All. 141

10. ■ Adding defendar,

after suit barred. A suit for property in the posses
sion of several persons was brought by the plainti:
against one of those persons only. After the insti
tution of the suit, and after the period of limitatio
prescribed for a separate suit on the same cause c.
action against the other persons in possession h*
elapsed, these latter were added as defendaot;
Held, that the suit must be dismissed as against tb
added defendants on the ground that it was barrel
by limitation. Obhoy Churn Nundi v. Kbitai
THAMOYi DossEE . . I. L. R. 7 Calc. 28

11.

Suit for partne.

ship accounts — Joint contract — Necessary partu
omission of — Addition of new defendant — Time '
joinder, how material. A suit was brought for par
nership accounts. Upon the objection of tb
defendant it Mas found that a necessary part
defendant had been omitted, and such party w

( 6941 )

DIGEST OF CASES.

( G942

LIMITATION ACT (XV OF 1877)— conid.
.__ s. 22 — contd.

afterwards added as a defendant at a time when the
suit as against him Mas barred. Held, that the
whole suit was rightl}' dismissed. Ramdoyal v.
JuNMENJOY CooNDoo . I. Ij. B. 14 Calc. 791

12.

Parties defend-

•,nts substituted as plaintiffs after suit hy them, is
tarred — Suit to set aside sale — Civil Procedure Code,
f. 32. A mitta held by tenants-in-common was
;old for arrears of revenue at a time when the
iwners of a moiety thereof were minors. In a suit
rought by the mother of these minors on their
>fhalf -against the Collector to set aside the sale,
he plaintiffs impleaded also the other previous
itt-ncrs, of M'hom one was the purchaser at the sale.
'wo others, in their wTitten statement, pleaded
hat the purchase had been made in fraud of their
ights, and claimed to be still entitled to their shares
a the mitta on the ground that the purchaser must
« held to have purchased for their benefit (Indian
'rusts Act, II of 18S2, s. 90). They further
laimed that should the sale be set aside so far as
lie plaintiff's interests were concerned, the sale of
itieir interests also should be held to be null and
oid. Before the suit came on for hearing, the
)istrict Judge siio motu ordered that these two
efendants should be made plaintiffs in the suit
nder s. 32 of the Code of Civil Procedure. At
,ie date when this order was made the claim of
lese defendants, had they sued to set aside the
}ile in their own interest, was barred by limitation.
'<M, that the order was illegal. Kj^ishna v.

jlEKAMPEEUMA. COLLECTOR OP SaLEM V. ^IeKAM-

EBUMA . . , . I. L. E. 10 Mad. 44

LIMITATION ACT (XV OF 1877) corktd.

13.

Parties to suit-

ransfer of defendants to category of plaintiff, effect
—Land Registration Act (Beng. Act VII of 1876),
7. A and B, two joint zamindars, having brought
patni M-ithin their zamindari to sale for arrears of
nt, purchased it themselves. During the exist-
ice of the patni a dar- patni had been created of
hich C was in possession. A instituted a suit
ainst C to recover arrears of rent of the dar-
itni for a period of three years, and joined 5 as a
0 forma defendant, alleging that he Mas away
3m home as the time of the institution of the suit
id could not therefore join as co-plaintiff. A''s
oprietary interest was registered under the provi-
)iis of Bengal Act VII of 1876, the Land Registra-
m Act, but B's interest was not so registered.
ior to the suit coming on for hearing, but after
e right to recover the rent for the first two out of
e thi-ee years had become barred by limitation,
3uming no suit to have been brought, B M-as
insferred from the category of defendant in the
it into that of co-plaintiff. In answer to the suit,
pleaded limitation, and also contended that the
n-registration of B's interest precluded the plaint-
! from maintaining the suit at all (A's share not
ing specified), having regard to the provision of
78 of the Land Registration Act. The lower
jpellate Court having" dismissed the suit on this

s. 22,— contd.

latter ground, and also held that the right to re-
cover the rent for the first two out of the three years,
as suit was barred by limitation: //<:?</, "^ that,
when B Mas sued as a paity-defendant, he Mas
made a party in violation of the rule apjjlied in
Dwarka Nath Mitter v. Tara Prusunna Roy, I. L. R.
17 Calc. 160, and that the suit Mas not therefore in
the first instance properly brought. B not being
properly on the record at all, that the effect of
making B co-plaintiff Mas practically to institute
a ncM' suit on the date M'hen he was so changed into
co-plaintiff, and that the suit had been rightly
dismissed on the ground of limitation so far as the
rent of the first tMo years Mas concerned, but that
the plaintiffs Mere entitled to a decree for the rent
in respect of the third j-ear Mhich Mas not barrerl
by limitation at the time B Mas made co-plaintiff.
JiBANTi Nath Khan v. Gokool Chunder Chow-
dry . . . I. L. R. 19 Calc. 760

14.

Parties changed

from defendants to plaintiffs. The plaintiff claiming
to be entitled, together with tMo of the defendants,
to the office of archaka of a temple, sued in 1889
for a declaration of his title, and for a declaration
that an agreement entered into by them in 1886
M-ith the other defendants Mas void as having been
executed under coercion, and because part of the
I consideration Mas the MithdraM-al of a pending
I criminal charge of trespass and theft against them.
I These averments Mere proved. The first-named
i defendants were made jjlaintiffs in the suit more
than three years after the execution of the agree-
ment. Held, that the first plaintiff M-as entitled to
a declaration of the invalidity cf the agreement,
but not the others Mho had been joined as plaintiffs
more than three years from its date. Sriraxga-
chariar v. Ramasami Ayyaxgar

I. L. R. 18 Mad. 189

15.

Suit hy heirs of

deceased Mahomedan — Suit originally filed in time
by one heir — Another heir subsequently made co-
plaintiff beyond time of limitation — Letters of admin-
istration obtained only by second plaintiff — Parties,
joinder of. The plaintiff, as MidoM" and heir of a
Klioja ilahomedan, sued on a promissorv note
dated the 21st October 1892, passed by the defend-
ant to her deceased husband. The suit Mas filed
on the 9th October 1895. Disputes subsequently
arose betMcen her and her father-in-laM' as to the
succession to her husband's property, and she
applied to the High Court for letters of adminis-
tration. On the 9th September 1896, the plaintiff's
father-in-laM", ou his a]iplication, Mas made a co-
plaintiff in the suit. Subsequently the plaintiffs
came to terms, and the MidoM- withdrcM- her appli-
cation for letters of administration, and her father-
in-law applied for and obtained letters of adminis-
tration instead. On the 14th November 1896. the
suit came on for hearing. The first plaintiff did
not produce any letters of administration or certi-
ficate under the Succession Certificate Act (VII of

6943 )

DIGEST OF CASES.

( 6944 )

LIMITATION ACT (XV OF 1811) -contd. LIMITATION ACT (XV OF 1877)— co»fc^.

-coJitd.

-contd.

1889). The second plaintiff produced the letters of
administration obtained by him. Hdd, that the
suit was barred by s. 22 of the Limitation Act (XV
of 1877). When the second plaintiff was added as
a part3% the suit was barred as against him. If the
letters of administration had been obtained by the
first plaintiff, her suit would not have been barred,
and the Court could have passed a decree in her
favour. S. 22 of the Limitation Act in terms
applies as well to plaintiffs suing in their represent-
ative capacity as in their personal capacity. Held,
also, that the second plaintiff was properly joined
as a party plaintiff. When one or more heirs sue,
there is no objection to joining; all to make the
representation comnlete. Fatmabai v. Pirbhai
ViRJi . . / . I. L. R. 21 Bom. 580

16. Civil Procedure

Code [Act XIV of 1882), s. 27— Suit ly henami
-purchaser at sale in execution of decree — Addition
of real purchaser as co-plaintiff. The plaintiff
Ravji as owner of certain land brought this suit on
the 31st January 1894 for damages for loss of crops
and in respect of loss caused by the defendant's ob-
structing him in cultivating the land. The dates of
the causes of action set forth in the plaint were,
respectively, the 12th September 1891, the 12th
March 1892, February 1892, and 12th October 1892.
In the course of the proceedings, the defendant
ascertained that Ravji was not the real owner of
the land, but had purchased it and was holding it
benami for his uncle. Ravji admitted that he had
no interest in the land. On the 30th March 1895
Ravji's uncle apphed to be made a party to the
suit, and was thereupon added as second plaintiff.
The Subordinate Judge on the merits passed a
decree awarding damages to the second plaintiff.
The defendant appealed, and in appeal for the first
time objected that Ravji (plaintiff No. 1), being
only a benamidar, could not bring the suit in his
own name, and that the claim of the second plaint-
iff, or a large portion of it, was barred by limitation
under s. 22 of the Limitation Act. The
District Judge reversed the decree on the point of
hmitation and dismissed the suit. On second ap-
peal to the High Court : Held, that the lower Appel-
late Court was wrong in dismissing the suit,
and that the appeal should be heard on the merits.
Per Parsoxs, J. — That any defect there might
have been in the suit as originally filed by the first
plaintiff, who was only benamidar, had been
cured by the Court acting under s. 27 of the Civil
Procedure Code. Bhola Pershad v. Ra7n Lall,
I. L. R. 24 Calc. 34, and Subodini Debi v. Cumar
Ganoda, I. L. R. 14 Calc. 400, foUowed. Per
Ranade, J. — The first plaintiff as benami purchaser
had full right to bring the suit. If the true owner
holds back, a decree against a benamidar owner
would bind him as res judicata. The present suit
was therefore properly instituted. The addition
of the second plaintiff's name made no difference
in the character of the suit. The defendant was
estopped by his conduct in the previous proceed-

ings, carried on between him and the first plaintiff
for over seven years, from questioning his right to
sue. The rights of the parties must therefore be
dealt with on the footing that the first plaintiff had
a right to bring this suit, and that he fully repre-
sented in his own person all the rights of the second
plaintiff, for whom he acted as agent all along.
The joinder of plaintiff No. 2 on 30th March 1895
did not therefore deprive plaintiff No. 1 of his
rights or create a new period of limitation as held
by the lower Court of Appeal. Ravji ApPAJr
Ktjlkarxi v. Mahadev Bapaji Ktjlkarni

I. L. R. 22 Bom. 672

17. Suit for damages

for illegal distraint — Joinder of parties — Parti/
plaintiff joined beyond period of limitation. A suit for
compensation for illegal distraint of crops was
brought by one of two person^ jointly entitled to
the crops distrained. Objection being taken on
the ground of non-joinder of a party, that party
was on his own application added as a plaintiff,
but his claim was then barred by limitation. Held,
that the whole suit was not barred by lim'tation in
consequence of the provisions of s. 22 of the Limit-
ation Act. Jagdeo Singh i\ Padarath Ahir

I. L. R. 25 Calc. 285

18.

Joinder of per-

sons as plaintiffs after period of limitation for

j suit has exvire^'f — Framp of sHif — -Parties. A,

who with his three brothers composed a joint

Hindu family, brought a suit in his own sole name

to recover a joint debt. AVlien the objection was

' taken to the form of the suit on the gi-ound of the

i non-joinder of A's three brothers, it was too late

I to add them as co-plaintiffs by reason of s. 22 of

; the Limitation Act (XV of 1877) — a suit on the

! debt being by that time time -barred. The three

I brothers at the hearing expressed their wiUingness

I that A should sue alone. Held, that such as.sent

j did not obviate the necessity of joining all thf

I proper parties as co-plaintiffs, and that the suit

therefore, as framed, would not lie. Held, further

that A would have been in no better position had

! he joined his three brothers as co-plaintiffs aftei

{ the suit was, as regards them, time-barred ; sinct

i such a suit would have been virtuall}' a suit b)

himseff alone, and therefore bad. Boydonath Ba[

V. Grish Ghunder Roy, I. L. R. 3 Calc. 2ii, disapprov

ed of. Kalidas Keval Das r. Nathf Bhagvan

I. L. R. 7 Bom. 21^

19.

Necessary part.

added after period of limitation expired — Objectio'i
for want of parties not taken. Wliere objection fo
want of parties jointly interested in the subject
matter of the suit was not taken by the defendant
at any stage of the proceedings, nor was an issm
framed upon the point: Held, that the partie
jointly interested with the plaintiff might be added
and that the suit shoxdd proceed, although the sai(
parties were added after the period of limitatioi
for bringing the suit had expired. Kalidas Keval

DIGEST OF CASES.

( 6946 )

LIMITATION ACT (XV OF 1877)— confi.

s. 22— contd.

das V. Xathu Bhagvan, I. L. R. 7 Bom. 217, distin-
guished. Shirekuli Timapa Hegade v. Ajjibal
Nab-ashinv Hegade . I. L. R. 15 Bom. 297

20. Addition of

parties on appeal — Civil Procedure Code, 1877,
is. 32, 5S2. S sued N and R jointly and se\erally
for certain moneys. The Court of first instance
?ave S a decree for such moneys against N, and
iismissed the suit against R. N appealed from the
iecree of the Court of first instance, but S did not
tppeal from it. The Appellate Court, at the first

•aring of N's appeal, made R a respondent, the
oeriod allowed by law for .S' to have preferred an
ippeal having then expired and eventually reversed
he decree of the Court of first instance, dismissing
he suit as against N and giving S a decree against
?. Held, that, although the Appellate Court was
ompetent to make R a party to the appeal under
s. 32 and 582 of Act X of 1877, yet it was not
ompetent, with reference to s. 22 of Act XV of
877, to give 8 a decree against R, the former not
aving appealed from the decree of the Court of
rst instance within the time allowed by law.
lANaiT Singh v. Sheo Prasad Ram

T. li. R. 2 All. 487

21. Civil Procedure

ode, 1SS2, s. 32 — Party to contract joined as defend-

.ni and subsequently made a plaintiff — Substitu-
on of parties. Limitation Act, s. 22, is not apph-
ihle to cases where the Court of its own motion

rders that a party to a contract originally joined
i defendant be made a plaintiff under the Civil

(rocedure Code, s. 32. Khadir Moideen v. Rajia

AiK . . . . X. L. R. 17 Mad. 12

s^. — — Assignee of right

suit — Leave to carry on suit. S. 22 of Act XV of
577 does not apply to a case in which the persons
whom a right of suit is assigned after the institu-
3n of the suit ol tain leave to carry on the suit.
:ppt Singh v. Imrit Tewari

I. L. R. 5 Gale. 720 : 6 C. L. R. 62

23. Names of part-

rs inserted as defendants instead of name of com-
ny. In a suit against the Elgin Mills Company
r recovery of the price of wood supplied up to
th November 1879, the suit was instituted on
ith October 1882. In January 1883, the partners

the Elgin Mills Company were on their own
■plication brought on the record as defendants.
'Id, that s. 22 of the Limitation Act refers to cases
lere a new defendant is substituted or added,
d that, when the partners of the Elgin Mills
mpany were brought on the record as defendants
January 1883, there was no institution or addi-
n of new defendants, the defendants having been
uprised in the designation of Elgin Mills Com-
Qy, and at most what was done was to correct a

description. Pragi Lal r. Maxwell

I. L. R. 7 AU. 284

Assignment pen-

14.

te lite — Substitution of assignees as plaintiffs.

VOL. m.

LIMITATION" ACT (XV OF 1877)— con/i.

s. 22— contd.

In a suit instituted within the period prescribed by
the law of limitation the plaintiff assigned over
his interest, and the assignees were substituted on
the record in the place of the original plaintiff after
the said period had expired. Held, that, under
s. 22 of the Limitation Act (XV of 1877), the suit
was barred by limitation. Suput Singh v. Imri
Teicary, 1. L. R. 5 Calc. 720, distinguished. Harak
Chand v. Denonath Saiiay. Bhagbct Prosad
Singh v. Denonath Sahay

I. li. R. 25 Calc. 40a

25.' ^ — Partnership —

Non-joinder of parties — Suit in name of a firm by its
manager — Addition of name of other partner as co-
plaintiff — Misdescription of plaintiff — Civil Proce-
dure Code (Act XIV of 1882), s. 27—Amend)nent of
plaint. This suit was brought to recover a debt
due to the firm of K S. The plaintiff was described
as "the firm of K S by its manager S S." The
defendants objected that one 21 was a partner in
the firm and should be a party to the suit ; he was
joined as a co-plaintiff on the 27th January 188S.
The defendants then contended that the suit was
time barred under s. 22 of the Limitation Act.
Held, that the case was one of misdescription, ar.d
not of non-joinder, for the action was brought in
the name of the firm by its manager. The ord^j
of the words in the vernacular plaint showed that
*S', the manager, did not sue in his own name. Tlie
defendants were entitled to have the name of tiie
other partner disclosed, but it being found as a
fact that /8 was entitled to sue for the firm, th©
addition of 2I's name on the record came within
the provisions of s. 27 of the Civil Procedure Code.
Kasturchand Bahiravdas v. Sagarmai. Shriram
I. L. R. 17 Bom. 413

Suit by Official

Liquidator — Description of plaintiff — Civil Proce-
dure Code, s. 53 — Amendment of plaint. In a suit to
recover a debt to a company which had gone into
liquidation, the plaintiff was described in the plaint
as '' The Official Liquidator, Himalaya Bank,
Limited, in liquidation," and the plaint was signed
and verified in the same terms. On objection taken
by the defendant, the plaint was allowed to be
amended, but after the period of limitation pre-
scribed for the suit had expired, so as to read " The
Himalaj-a Bank, Limited, in liquidation, plaintiff."
Held by the Full Bench, that the plaint, as originally
filed, was in substantial compliance with the pro-
visions of Act VI of 1882 ; and that, even if it
might be considered that the amendment made
was necessary, such amendment did not introduce
a new plaintiff into the suit so as to lie in the oper-
ation of s. 22 of Act XV of 1877. Ghulam Muham-
mad v. Himalai/a Bank, I. Ij. R. 17 All. 292, over-
ruled. In re W interboltom, L. R. IS Q. B. D. 446,
distinguished. Muha.mmad Yusuf v. Himalaya
Bank .... I. L. R. 18 All. 198

27. ■ Defendant added

by Court of its oicn motion — Civil Procedure Cod*,

10 m

( 6947 )

DIGEST OF CASES.

LIMITATION ACT (XV OF 1871)— conUi.

s. 2,'Z—conid.

18S2, s. 32. No question of limitation arises, and
6. 22 of the Limitation Act does not apply when the
Court of its own motion acts under s. 32 of the Code
of Civil Procedure, and orders that the name of
any person be added as a defendant. Grish Chunder
Sasmal v. Divarka Naih Duida, I. L. R. 2 i Cole.
640, and Oriental Bank Corporation v. Charriol, I. L.
R. 12 Calcf)42, followed- Khadir Moideen v. Ra^na
Nark, I. L. R. 17 Mad. 12 referred to ; and Imam-
■uddin V. Liladhar, I. L. R. 14 All. 524, dissented
from. Fakera Pasban v. Azimunnissa

I. L. R. 27 Calc. 540
4C.W. K". 459

28. ■ Municipalities

Act, N.-W. P. and Oudh, s. 43 — Suit against Secre-
tary to Municipal Committee — Substitution of Presi-
dent as defendant. AVhere, after a notice required
by s. 43 of Act XV of 1873 had been left at the
office of a municipal committee, such committee
were sued within three months of the accrual of
the plaintifl's cause of action in the name of their
secretary, instead of the name of their president
as required by s. 40 of Act XV of 1873, and the
plaintiff applied to the Court more than three
months after the accrual of his cause of action to
substitute the name of the president for that of
the secretary : Held, that, by reason of such sub-
stitution, such suit could not be deemed to have
been instituted against such committee when such
substitution was made, s. 22 of Act XV of 1877
applying to the case of a person personally made a
party to a suit, and not to the case of a committee
sued in the name of their officer, and that such
substitution, when applied for should have been
made. Manni Kasatjndhax v. Crookb

I. L. B. 2 All. 296

29. ■ Non-joinder of

parties — Application to join necessary parties made
within period of limitation refused by Court of first
instance — Application granted by Court of Appeal,
but after period of limitation — Order to add parties
operating nunc pro tunc — Delay the act of the Court.
The plaintiffs, as sharers in certain rent alleged to
be due by the defendants, sued to recover their
share. The defendants contended that all the co-
sharers were necessary parties. At the hearing on
the 24th January 1889, the plaintiffs' co-sharers
apphed to be made co-plaintiffs and to be allowed
to adopt what the plaintiffs had done in the suit.
The application was rejected, and the suit was dis-
missed for want of parties. On appeal, the District
Court in July 1890, holding that the lower Court
ought to have joined the co-sharers, passed an order
making them co-plaintiffs, and then confirmed the
lower Court's decree on the ground that at the time
(3rd July 1890) the co-sharers were made plaintiffs,
the suit was barred by limitation. On appeal to
the High Court -.-Held, remanding the case, that
the order of the lower Appeal Court of the 3rd July
1890, allo\ving the co-sharers' application, which had
been made on the 24th January 1889, but had been
refused by the Court of first instance, should be

LIMITATIOW ACT (XV OP 1877)— con«.

s. 22—coAtd.

treated as operating nunc pro tunc, and that the
co-sharers should be regarded as having been made
parties to the suit when their application was
made. The delay was attributable to the act of
the Court, and the plaintiffs should not suffer from
it. Ramkeishna Moreshwak v. Ramabai

I. L. E. 17 Bom. 29

30.

Amendment of

plaint — Defendant sued in different capacity from
that originally stated. The creditor of a deceased
trustee of a temple sued two persons as his successors
in office to recover the amount of the debt.
One of the defendants died ; the other, who was
the brother of tlie deceased,, pleaded that other
persons were joint trustees with him, and should
have been impleaded with him ; he also alleged
that the debt in question was a private debt, and
had not been incurred by the deceased as a trustee.
The persons named were joined as defendants, and
t'iiey repeated the above allegation. The plaintiff
thereupon amended the plaint and prayed for a
personal decree against the original surviving
defendant, and the others were removed from the
record. The amendment took place more thau
three years after the date when the debt was paly-
able, but the suit had been instituted within that
period. Held, that the claim was not barred by
limitation. Saminatha v. Mitthayya

I. li. R. 15 Mad. 417

31. • Civil Procedttre

Code (Act XIV of 1882), s. 33.— Party, addition of.
In a suit to recover the price of work done for the
Government, where a servant of the Government
was originally made the defendant, and the Secre-
tary of State was subsequently added as a defend-
ant : Held, that the addition was not a rectifica-
tion or substitution of the original defendant, and,
for the purpose of limitation against the Secretary
of State, the suit should be considered to have
been instituted on the date when he was made a
party. Mandardhar Aitch v. Secretary of
State for India (1901) . 6 C. W. W. 218

32. Addition of neu

defendant. Two sons were placed on the record, in
substitution for and as heirs of their deceased
father. Subsequently it transpired that the de-
ceased had left a will appointing one of the sons
his executor. The record was thereupon altered, bj
placing him on it, as executor instead of as one ol
the heirs. Held, that there was no addition of a
new defendant, within the meaning of s. 22, Limit-
ation Act. Prosunno Kumar Sen v. Mahabharai
Saha (1903) . . . . 7 C. W. N. 57E

33. Civil Procedur

Code (Act XIV of 1882), s. 32— Suit to recova
possession — Suit by one of the plaintiffs as managei
of the family — Right of manager to sue — Objection (U
to non-joinder at a late stage — Joinder of co-plaintiff'
after the period of limitation — Limitntion. A suit tc
recover possession of a house was originally brougW
by two plaintiffs, the second plaintiff being describee

( 6949 )

DIGEST OF CASES.

lilMITATION ACT (XV OP 1877) -eontd.

-contd.

as the manager of the family. Subsequently at a
late stage of the suit, the defendants having raised
an objection of non-joinder of parties, the other
members of the family who. however, stated that
they were satisfied to be reprssented by the plaintiff
No. 2 as the manager of the joint family, were
joined as co-plaintiSs, but after the expiry of the
period of limitation prescribed for the suit. The
first Court allowed the claim. The Judge in appeal
reversed the decree and dismissed the suit as time-
barred under s. 22 of the Limitation Act (XV of
1877). Held, reversing the decree of tlie Judge
and restoring that of the first Court, that s. 22 of
the Limitation Act (XV of 1877) does not in itself
purport to determine directly whether the joinder
of the parties after the institution of a suit
shall in all cases necessarily involve the bar of
limitation, if the period prescribed for such a suit
has then expired. Such a result must depend
upon consideration of the question whether the
joinder was necessary to enable the Court to award
such relief as may be given to the suit as framed.
If fresh parties are merely joined for the purpose of
safeguarding the rights subsisting as between them
and others claiming generally in the same interest,
the determination (by application of the provi-
sions of s. 22 of the Limitation Act) of the date of
the institution of the suit as regards such freshly
joined parties does not ordinarily affect the right
of the original plaintiff to continue the suit and
would not therefore attract the application of the
general provisions of the Limitation Act (XV of
1877). The question of the right of a manager to
sue in that capacity is rather one of authority, if
the other co-sharers are adults, and the right to
insist on the other co-parceners being brought on
the record is for the benefit of the defendant to
insure himself against further litigation and is
therefore dependent on the objection being taken
at an early stage, the objection on the score of want
of authorization being one of a character, which it
I would clearly be open to the defendant to waive,
GURUVAYYA V. Dattatraya (1904)

I. li. R. 28 Bom. 11

, 84. Civil Procedure

Code, s. 32 — Hindu law — Suit hy head of family to
fccover possession of immoveable 'property — Non-
joinder of plaintiff's brother — Objection to non-
joinder not raised until a late stage of the suit — Com-
petence of Court to add party after the expiry of the
\0eriod of limitation. The plaintiff came into Court
|;laiming possession of certain immoveable property
)n the grounds (i) that it was a portion of an
impartible raj of which he was the head, and (ii)
l-hat he was in any case entitled to the property
•laimed by virtue of an assignment thereof (sipurd
■lamah) executed by a former de facto holder in
javour of his (the plaintiff's) predecessor in title.
I^e plaintiff had a brother, who had not been
aade a party to the suit. Held, that it was un-
ecessary to decide the plaintiff's first plea, because
ven if the property did, as asserted, belong to an

LIMITATION ACT (XV OF 1877)— contd.

3. 22— contd.

impartible raj, the plaintiff's claim thereto as head
of the raj was barred by limitation ; (iii) that the
plaintiff was entitled to succeed so far as his claim
was based on tlie deed of assignment, but inas-
much as the proport}' thereby disposed of had
become divested of the character of irapartibility,
if it ever possessed such character, the plaintiff's
brother was entitled equally with the plaintiff to a
share in it ; (iv) that the suit did not necessarily
fail by reason of the plaintiff's brother not having
been made a party to it, but then it was competent
to the Court under the circumstances to add the
plaintiff's brother as a party even in the stage of
appeal, although the suit, so far as he was con-
cerned, would have been by that tims barred by
limitation, no objection on the ground of non-
joinder having been pressed by the respondents
until the Court in appeal suggested that he ought
to have been made a party. Guruviyi/i Gouia v.
DMatrain Anin'.. I. L. R. 2S Bvn. 11, followed.
Radha Proshad Wasti v. Esuf, I. L. R. 7 Calc. 414,
and Huloihur Sen v. Gooroo Diss Roy, 20 W. R.
126, referred to. Pateshri Partap NAR\i>f
Singh v. Rudra Naraix St>^GH (1904)

I. L. R. 26 All. 528

35.

Substitution after

claim barred — " New plaintiff " — Civil Proce-
dure Code (Act XIV of 18S2), s. 372. A instituted
a suit on the last day of limitation. On a subse-
quent date, B's name was substituted in place of
A's upon an application of B, to which A consented,
stating that A had sold his interest to B. Latet
on, A and B both representing that the alleged sale
was a fictitious transaction, A's name was restored
and B\s struck out. Both the lower Courts found
that B was not the be^iamdar of A. Held, that the
second substitution-order could not have been
made under s. 372 of the Civil Procedure Code and
at its date A was a " new plaintiff " within the
meaning of s. 22 of the Limitation Act. The suit
was therefore barred. Ramjoy Natt Saroar v.
Shambhu Nath Shaha (1905) . 9 C. W. M". 883

36.

Parties, substi-

tution of — New plaiMiff — Assignment — Assignee
siihstituted after neriod of limitation — Civil Procedure
Code. (Act XIV of 1SS2), s. 372— Limitation Act
{XV of 1S77), f. 22. In a suit bnught within the
period of limitation the name of the assignee of
the original plaintiff was, after expiry of the period,
substituted for that of the latter which was struck
off the record. Held, that s. 22 of the Limitation
Act was applicable, and that if a person who has
not been on the record is substituted as a plaintiff
in the place of the original plaintiff under s. 672 of
the Code of Civil Procedure, the person so substi-
tuted must be taken to be brought on the record
subject to the law of limitation apphcable to the
case. That section does not exclude the operation
of s. 22 of the Limitation Act and, except in the
case of the legal representative of a deceased party,
the person substituted as plaintiff must be regarded

10 m 2

( 6951 )

DIGEST OF CASES.

( 6952 )

LIMITATION ACT (XV OF 1617)— contd. \ LIMITATION ACT (XV OP 1877)— confci.

s. 22 — concld.

as a new plaintiff within the meaning of the latter
section. Harrack Chand v. Deonath Sahm/, I. L. R.
25 Calc. 409, approved. Suput Simjh v. Imrit
Tewari, I. L. E. 5 Calc. 720, disapproved and distin-
guished. Abdul Rahman v. Amir Ali (1907)

I. L. B. 34 Calc. 612

s. 23 — contd.

ment by instalments is governed by s. 23, Act IX,
and, on default in the payment of one instalment,
the whole amount becomes due. Rughoo Nath
Dass v. Shiromunee Pat Mohadebee

24 W. R. 20

37.

Cp-plaintiff —

Breach of con-

Suit — New plaintiff — Transfer of a pro forma de- j
fendant to the category of the plaintiff after the period j
of limitation — Effect of such transfer — Such added
plaintiff, whether a new plaintiff. In a suit for rent,
one of the co-sharers, having refused to join as
co-plaintiff, was made a party defendant. The
plaintiff asked for the entire 16 annas rent due, but \
at the same time he asked to have awarded to him [
half the money actually due. An ex parte decree j
was passed, which was subsequently set aside and j
the suit was restored to its original number. After |
the expiration of three years from the time when i
the rent last became due, the pro forma defendant |
by an application got himself transferred to the 1
category of plaintiff. Upon a defence taken that
s. 22 of the Limitation Act applied to the case, and j
the suit was barred by hmitation : Held, that the j
added plaintiff was not a new plaintiff, and s. 22
of the Limitation Act had no application, and
therefore the suit was not barred by limitation.
Nagendrabala Debya v. Tarapada Acharjee 1
(1908) . . . I. L. R. 35 Calc. 1065

38. Suit for rent by \

co-sharer makiruj the other co-sharer a defendant —
Pro f.rmd defendant added as co-plaintiff, if " new \
plaintiff" — Addition, if irregular. Wlien, in a suit j
for rent originally instituted by a co-shaier land-
lord, the remaining co-sharer was added as a pro
forma defendant, but subsequently more than three ]
years after the rents in suit accrued due, the pro \
forma defendant obtained an order joining him as
a co-plaintiff instead of a defendant : Held, that
the latter was not a "new plaintiff" within the
meaning of s. 22, Limitation Act, and the suit was
not barred by hmitation. Abdul Raliman v. Amir
Ali, 11 C. iV. N. 521: s.c. I. L. R. 34 Calc. 612,
Ramkinkar Biswas v. Akhil Chandra Chowdhuri,

11 C. W. N. 350 : s.c. I. L. R. 35 Cnlc. 519,
Krishna v. Mekamperuma, I. L. R. 10 Mad. 44,
referred to. The addition of pro formd de-
fendant as plaintiff after hmitation was not irregu-
larly made. Oriental Bank v. Chariot, I. L.. R.

12 Calc. 642, Ckiruvayya v. Dattatraya, I. L. R. 28
Bom. 11, 20, referred to. Nogendra Bala
Debya v. Takapada Acharjee (1908)

13 C. W. N. 186

8.23(1871,8.23)—

See post, ScH. II, Art. 35.

I. L. R. 25 Bom. 644

See Prescription — Easements — 1! ights

OF Water . . I. L. R. 6 Bom. 20

1 C. W. N. 96

tract — " Continuing breach" — Limitation Act {IX
of 1871), s. 23. The purchasers of certain land
agreed to pay the vendors certain fees annually
in respect of such land, and that in default of pay-
ment the vendors should be entitled to the pro-
prietary possession of a certain quantity of such
land. The purchasers never paid such fees, and
more than twelve years after the first default the
vendors sued them for possession of such quantity
of such land. Held, that there had not been a
" continuing breach of contract " within the mean-
ing of s. 23 of Act XV of 1877, and therefore the
provisions of that section were not applicable to
the suit. Bhojkaj v. Gctl^han Ali

I. L. R. 4 All. 493

B/C'ish of covenani

1. ' Consent decree for

payment by instalments. A consent decree for pay-

for title — Continuing breach — Covenants for quiet
possession and further assurance. S L, by "
deed of gift of 16th February 1847, granted and
assured to S, his daughter, certain immoveable
property. By a subsequent unregistered deed of
gift of 15th July 1865, .S' L purported, in consider-
ation of natural love and affection, to grant and
convey the same property, the value of which ex-
ceeded RlOO, to B R, the husband of S, his heirs,
executors, administrators, and assigns. The last-
mentioned deed contained covenants on the part of
S L, his heirs, executors, and administrators, with
B R, his heirs, executors, administrators, and
assigns, for title to " the hereditaments and pre-
mises hereinbefore expressed to be hereby granted
and assured unto and to the use of the said B R,
his heirs, executors, administrators, and assigns."
S died in the lifetime of B R, who in 1807 mort-
gaged the premises comprised in the deed of 15th
July 1865 and died in 1868. In 1870 the mort-
gagee sold the premises by auction, under the powen
of sale contained in the mortgage-deed ; the plaint-
iff became the purchaser ; and the mortgagee,
on 24th March 1871, exectuted to him a conveyance
of the premises, which were then in the posses-
sion of the surviving members of the family of
B R and S. The plaintiff having failed in a suit in
ejectment against the parties in possession, who
relied on the prior gift to S, sued the representatives
oi S L for damages for breach of the covenants for
title contained in the unregistered deed of 15th
July 1865. Held, that the breach of the grantor's
covenant, so far as related to his present right to
convey, took place on the day the conveyance to
the covenantee was executed, viz., 15th July 1865,
and consequently a suit in respect of such breach
was barred ; but the covenant for quiet possession,
admitting of a continuing breach, was not barred
so lono- as the breach continued, and that of the

DIGEST OF CASES.

( 6954 )

IIMITATION ACT (XV OF 1877)— contd.

. s. 23— conid.

covenant for further assurance there had been no
breach at all, as such covenant would be broken
only by refusal on the part of the covenantor or
his representatives to execute a further assurance
when required so to do by the covenantee or his
representatives. Raju Balu v. Krishnarav Ram-
•CDAjrDHA . , . I. L. E. 2 Bom. 273

lilMITATION ACT (XV OF 1877)— contd.

Botid — Interest

post diem — Non-payment of principal and interest at
agreed date — Continuing breach — Act XV of 1877,
Sck. II, Artf. 115, 116. Upon failure to pay the
principal and interest secured by a bond upon the
day appointed for such payment, breach of the
contract to pay is committed, and there is no
" continuing breach " within the meaning of s. 23,

'. nor " successive breaches " within the meaning of

' art. 115 of the Limitation Act (XV of 1877).

' MuNSAB Ali v. Gulab Chand I. L. R. 10 All. 85
5. - - Suit for restitu-

tion of conjugal rights — Demand and refusal — Con-
tinuing cause of action — Husband and wife — Suit
for possession of wife. Where a husband sued to
recover i)ossession of his wife, making the wife
herself the defendant to the suit : — Held, that it
was in substance a suit for the restitution of
conjugal rights, and art. 3.5 of the Limitation
Act (XV of 1877) applied. The demand and
refusal, which form the starting point for hmita-
tion under art. 35 are a demand by the husband
and refusal by the wife (or vice versa) being of
full age. A positive that refusal on the part of
the wife to return to hep husband is not essential
to the husband's cause of action. Quare :

.^Vhether in case of a refusal by a wife of full age
to a demand made by her husband, she should
return to him, a suit by him for her recovery
is barred under Art. 35 of Sch. II of the Limita-
|tion Act, or falls within the purview of s. 23 as
based on a continuing cause of action. Fakir-
3ATJDA V. Gangi . . I. L. R. 23 Bom. 307

8- — Disturbance of

'ight of Ferry — Nuisance — Continuing wrong —
Cause of action. The disturbance of a right of
"erry is in the nature of a nuisance ( Yard v. Ford,
'i Saunders, 172), and the cause of action in the case
)f a violation of tliis right is a continuing wrong
Vithin s. 23 of the Limitation Act. Kityahaei
iOY t;. Dunne . . I. L. R. 18 Gale. 652

7. and Arts. 34, 3b— Suit for

estitution of conjugal rights— Wife s refusal
0 return to her husband— Husband and wife. The
efusal of a wife to return to her husband and allow
im the exercise of conjugal rights constitutes a
continuing wrong giving rise to constantly recurring
auses of action on demand and refusal. Suits for
be recovery of a wife or for the restitution of con-
igal rights, though governed by Arts. 34 and 35 of
|ch. II of the Limitation Act (XV of 1877), are not
'bereby taken out of the operation of s. 23 of the
^ct. Bai Sari v. Hirachand

I. li. E. 16 Bom. 714

s. '23— contd.

Hemchand v. Shiv.

1. L. R. 16 Bom. 715 note
5ec PiNDA V. Kattnsilia I. L. R. 13 All. 126
Sch. II, Arts. 35, 120— Suit for res-

titution of conjugal rights — Limitation. A suit for
restitution of conjugal rights between Mahomedans
is governed by Art. 35 of the second Schedule of
the Limitation Act, if at the time of the demand and
refusal the wife or husband was of full age and
the sound mind ; otherwise Art. 120, Sch. II, of the
Limitation Act would apply to such a suit. S 23 of
Limitation Act does not apply to a .suit for restitu-
tion of conjugal rights. Dhanjibhoy Bomanji v.
Hirahai, 1. L. R. 25 Botn. 644, approved of. AsER-
TJNNESSA Khattjn V. BuzLOO Meah (1906)

I. L. R. 34 Calc. 79

ss. 23 and 28, and Seh. II, Arts.

120, 142 and 144— Attachment by Magis-
trate under s. 146, Criminal Procedure Code —
Cross suits for declaration of right to possession —
" Continuing wrong " — Limitation. Certain lands
were attached by a Magistrate, in 1886, under
s. 146 of the Code of Criminal Procedure, in conse-
c^uence of disputes relating to their possession.
The Magistrate continued in possession of the lands,
and realised some income from them. Both claim-
ants instituted, in 1897, suits, in wliich each claimed
the lands as his own, and sought to obtain a decla-
ration of title to them, as well as to the accimiu-
lated income, with a view to obtaining possession
of the lands and money from the Magistrate. On
the question of limitation being raised : Held, that,
in so far as the suits were for declaration of title to
immoveable j^roperty and the profits therefrom,
they were governed by Art. 120 of Sch. II to the
Limitation Act. Arts. 142 and 144 were not
applicable, the suits not being for the recovery of
immoveable property, within the meaning of either.
The actual or physical possession was with the
Magistrate, who was not, and could not be made,
a party to the suits. With regard to Art. 142, the
Magistrate could not be regarded as having dis-
possessed either party, nor could either party be
regarded as having discontinued possession. The
attachment by the Magistrate operated, in law, for
purposes of limitation, simpl}' as a detention or
custoily, pending the decision b}' a Civil Court, on
behalf of the party entitled. P'or the purposes of
limitation, the seizin or legal possession was, during
the attachment, in the true owner. Goswami Ban-
chor Lalji v. Sri Girdhariji, I. L. R. 20 All. 120,
commented on. With regard to Art. 144, it was
still less aijplicable, as each plaintiff claimed as the
true owner and as being in legal possession (bj- the
possession of the Magistrate), and the legal posses-
sion for purposes of limitation was constructivelj'
in the person who had the title at the date of the
attachment, and such title could not be extin-
guished by the operation of s. 28, however long the
attaclunent might continue. The right to sue
accrued on the date of the attachment. The cause
of action for the declaratory suit was the alleged

DIGEST OF CASES.

{ 6956 )

LIMITATION ACT (XV OF 1877)— confd.'*
s. 23—concld.'^'

wrongful denial by the defendant in each case of the
plaintiff's title and possession, and the procur-
ing by such denial the attachment by the Magis-
trate. There was no continuing wrong, within the
meaning of s. 23 of the Limitation Act, so as to
give a fresh starting point for limitation at every
moment of the time during which the attachment
continued. Chukkun Lai Roij v. Lolit Mohan Roy,
I. L. R. 20 Calc 906, 925, commented on. Though
the suits were banned in so far as they were for a
declaration of right to the lands, that bar
affected only the remedy or relief by way of decla-
ration, and did not extinguish the right and title of
the true owner to the property. The operation of
s. 28 of the Limitation Act is limited to cases in
which the bar of hmitation applies to suits for
possession of property. The right of the true
owner to lands cannot be extinguished, however
long such an attachment may continue ; nor can
lands attached under s. 146 of the Code of Criminal
Procedure be ever forfeited to Government. RaJah
OF Venkatagiri v. Isakapaixi Subbiah (1902)

I. L. E. 26 Mad. 410

S. 24 — Calingula constructed

ernment — Necessary effect to cause water to flood
plaintiff's lands — Rights of Government in connection
with the distribution of water — Continuing wrong.
In 1882 a cahngula was constructed by Government
for the purpose of reducing the flow of water into
a tank through a channel. The necessary effect of
the calingula would have been to cause the water
diverted from the channel to flood the plaintiff's
land. To obviate this, a small drainage channel
was formed by Government to carry off the surplus
water. Plaintiffs contended that the drainage
channel was not sufficient to carry off the water
and that the water which flowed over the cahngula
stagnated on their lands and rriade them unfit for
cultivation. They prayed for a mandatory injunc-
tion directing that the calingula be blocked up.
Held, that they were entitled to the relief claimed.
Governmnet have the right to distribute the water
of Go vernment channels for the benefit of the public
subject to the rights of a ryotwari landholder, to
whom water has been supplied by Government, to
continue to receive such supply as is sufficient for
his accustomed requirements. But the rights of
Government, in connection with the distribution of
water, do not include a right to flood a man's land
because, in the opinion of Government, the erection
of a work, which has this effect, is desirable in con-
nection with the general distribution of water for
the public benefit. The fact that the opening of
the calingula was necessary for the protection of
the tank, and the fact that there was no neghgence
in the construction of the calingula — so far as
the cahngula was concerned — did not deprive the
plaintiffs of their right to have their property
protected. Even if Government had been em-
powered by statute to construct the cahngula
in question, it would be for Government to show
that^they could not exercise their statutory powers

LIMITATION ACT (XV Or 1877)— confrf,
s. 24— conc/d.

without injuring the plaintiff's lands. The position
of persons acting under statutory authority dis-
cussed. Held, also, that the injury was a continu-
ing one and that the suit was governed by s. 24
of the Limitation Act and was not barred by
limitation. Sankaravadiveltt Pillai v. Secre-
tary OF State for India (1905) .

I. L. E. 28 Mad. 7a

— s. 25 (1871, s. 26)—

See Marine Insurance.

13 C. W. N. 425

Computation of

time — English calendar. In calculating time for
the purpose of applying the law of limitation, the
computation must be made according to the English
calendar. In a suit brought on the 5th Assar 1273
(3rd July 1866) for recovery of a sum of money
for goods sold and delivered, the debt for whick
the defendant acknowledged by a writing dated 8th
Assar 1270 (9th June 1863) :— ^eW, that the suit
was barred by lapse of time. Jay Mangal Singh
V. Lal Rung Pal Sing . 4 B. L. R. Ap. 53
s.c. Joy Mungal Singh w. Lall Rung Pal Sind
13 W. R. 183

2. • Bond — Limita-
tion Act, 1877, Art. 66 — Gregorian calendar. Where-
a bond, by its terms, stated that money advanced
should be repaid on the 30th Pons 1283 B.S., and it
so happened that in the year 1283 the month of Pous
consisted only of twenty-nine days (the 29th Pous
answering to the 12th January 1877) : — Held, that a
suit brought on the 13th January 1880 was in time.
Almas Banee v. Mahomed Ruja

I. L. B. 6 Calc. 239 : 6 C. L. R. 553

Native

date-

Gregorian calendar. Where a bond bears a native
date only, and is made payable after a certain time,
that time, whether denoted by the month or the
year, is to be computed according to the Gregor-
ian (British) calendar : s. 25 of Act XV of 1877.
NiLKANTH V. Dattatraya . I. L. R. 4 Bom. 103

4. Native date-

Month. The plaintiff sued on a note, bearing a
native date, Ashad Vadya 13th, Shake 1799 (7th
August 1877), and containing a stipulation for pay-
ment of the money to this effect : "In the month
of Kartik, Shake 1799,— that is to say, in four
months, — we shall pay in full the principal and
interest." The plaint was filed on the 6th Decem-
ber 1880 in the Court of Small Causes at Poena.
The Judge was of opinion that the claim was baiTcd.
On his referring the case to the High Court for
decisicn : Held, that the period of four months was,
for the purpose of ascertaining whether the suit \ya3
barred by lapse of time, to be calculated according
to the Gregorian calendar, under s. 25 of the Limita-
tion Act (XV of 1877), and that the claim was
not barred. Rungo Bujaji v. Babaji

I. L. R. 6 Bom. 85

( 6957 )

DIGEST OF CASES.

( 6958 )

lilMITATIOJJf ACT (XV OF 1871)— contd.

B. 25 — coucld.

Compriiaiion of

time — Difference in calendars — Date jrom which time
runs. A registered lease provided that the rent
should be paid on 30th Masi Tharana. The month
Masi in the year Tharana ended on the 29th day,
which corresponded with the 11th March 1885. A
suit to recover the rent was hied on the 12th March
1891. Held, that the suit was not barred by limita-
tion. Gnanasammanda Pandaeam v. Palani-
iTANDi Pillai . . I. L. B. 17 Mad. 61

— 8.26(1871,8.27).

See Peesceiption — Easements — Light

and Air . . 15 B. L. B. 361

I. L. B. 14 Calc. 839

See Peesceiption — Easements — Right

OP Way . . I. L. B. 1 Calc. 422

I. L. B. 8 Calc. 956

23 W. E. 290 ; 401

I. L. E. 10 Calc. 214

8 C. W. N. 359 ; 425

See Peesceiption — Easements — Rights

OF Water . I. L. B. 5 Mad. 226

I. L. B. 6 Bom. 20

I. L. B. 6 Calc. 394

[ 1. ■ Enjoyment "as

■' right " — User in assertion of right. The enjoy-
lent described in Act IX of 1871, s. 27, by the words
as of right " aoes not mean user without trespass,
it it means user in the assertion of a right. Ali-
ooddeen v. Wuzeer Ali . . 23 W. B. 52

2. Easement — Pre-

imption of a grant. In a suit to establish an ease-
ent when limitation is pleaded, the proper issues
■ frame under s. 26 ot Act XV of 1877 are — (i)
hether the easement in question was peaceably,
)enly, and as of rigfit enjoyed by the plaintiff
those through whom he claims, within two
:ars of the institution of the suit ; and (ii) in the
ent of the above issue being found in the nega-
te, whether there is evidence of enjoyment on the
l.rt of the plaintiff, or those through whom he
liirs, of such a character and duration as to justify
js presumption of a grant or other legal origin of
le plaintiff's right independent of the provisions
Act XV of 1877, s. 26. Achtjl Mahta v. Rajijn
iHTA . . . . I. L. B. 6 Calc. 812

Right of xcay-

sement — User as of right — Prescriptive right.

>T the purpose of acquiring a right of way or other
Ifement under s. 26 of the Limitation Act, it is not
1 leasary that the enjoyment of the easement should
1 known to the servient owner. In this respect
lure is a difference between the acquisition of such
1 hts under that Act and their acquisition under
< I English Prescription Act. Arzan v. Rakhal
(jtmiDER Roy Chowdhey . I. L. B. 10 Calc. 214

L Easement — Light

tl air — Apertures — Enjoyment as of right. The
e oyment by the plaintiff of light and air through

LIMITATION ACT (XV OF 1877)— con<d.

8. 26— contd.

apertures in the wall of his house, when it is
open and manifest, not furtive or invisible, and
when it is not had in such wise as to involve
the admission of any obstructive right in the
owner of the servient tenement, is an enjoj'ment
"as of right " within the meaning of s. 26 of Act
XV of 1877. The phrase does not imply
a right obtained by grant from the owner of the
servient tenement. Mathuradas Nandvalabh v.
Bai Amthi . . . I. L. B. 7 Bom. 522

Prescription-

Easement— Accrual of cause of action. At any time
within twenty years, should injury accrue from the
recurring use of an easement to the owner of the
servient tenement, a new cause of action arises to
the owner of the servient tenement, which he may
put in suit within twelve years from its accrual.
JoGAL Kishore V. Mulchand . 7 N. W. 293

Suit for easement

based on continuous user. A suit to establish a claim
to an easement, based upon a continuous user for
twenty years, must, with reference to s. 27, be
brought within two j-ears from the end of such
period. Luchmee Pershad Narain Singh v.
Tiluckdharee Singh . . 24 "W. B. 295

7. — — — Easement — Pre-
scription— User — Fishery, Right to — Limitation
Act, 1S77, s. 3. The word "easement," as used in
the Limitation Act, 1877, has by force of the inter-
pretation clause (s. 3) a very much more extensive
meaning than the word bears in the English law,
for it includes any right not arising from contract
by which one person is entitled to remove and
appropriate for his own profit anj' part of the soil
belonging to another, or anything growing, or
attached to, or subsisting upon the land of another.
An easement, therefore, under the Indian law
embraces what in English law is called a profit a
prendre, — that is to say, a right to enjoy a profit
out of the land of another. A prescriptive right of
fishery is an "easement " as defined by s. 3 of the
Act, and may be claimed by any one who can prove
a "user " of it, — that is to say, that he has of right
claimed and enjoyed it without interruption for a
period cf twenty years, although he dees not allege
and cannot prove, that he is, or was, in the posses-
sion, enjoyment, or occujiation of any dominant
tenement. Chundee Ihikn Roy r. Shib Chcndeb
Mundul I. L. B. 5 Calc. 945 : 6 C. L. B. 269

8, Jalkar — Ease-

merit. A jalkar is not an casement within the mean-
ing of s. 27 of Act IX of 1871, but is an interest in
immoveable proi)erty within the meaning of sch.
II, art. 145, of that Act. Parbutty Nath Roy
Chowdhry v. Mt:dho Paroe

I. L. B. 3 Calc. 276 : 1 C. L. B. 592

Fishery — Custom — Suit to restrain fishing in certain
bhils. In a suit to restrain the defendants from
fishing in certain bhils, which admittedly belonged

DIGE&T OF CASES.

LIMITATION ACT (XV OF 1811)— contd.

a. 26 — contd.

to the plaintiff's zaraindari, it appeared that the
plaintiff had led out some of the bhils to ijaradars
who had sued the defendants for the price of fis^
taken by them from the bhi'.s, and that the suit had
been dismissed on the ground that the defendants,
in common with other inhabitants of the villages in
the zaraindari, had acquired a prescriptive right to
fish in the bhils. The defendants contended that
they had been in possession of the bhils for more
than twelve years, and that they had a prescriptive
right to fish therein, under a custom according to
which all the inhabitants of the zamindari had the
right of fishing. Held, that the mere fact that the
defendants had trespassed and had misappropriated
fish did not amount to a dispossession of the plaint-
iff, and that the suit was not barred by limitation.
Parhidty Nath Roy Chowdhry v. Mudho Faroe,
I. L. it. 3 Gale. 276, distinguished. flHeZi, also,
that no prescriptive right of fishery had been ac-
quired under s. 26 of the Limitation Act, and that
the custom alleged could not, on the ground that it
was unreasonable, be treated as valid. Lord Rivers
V. Adami, L. R. 3 Ex. D. 361, followed. Lutch-

MEEPUT StnGH v. SaDATJLLAH NuSHYO

I. L. R. 9 Calc. 698 : 12 C. L. R. 382

10.

— Easement — Right

of way — Prescription — Effect of illustrations. On
the 6th of April 1878, the plaintiffs sued for
obstructing a right of way for boats in the rainy
season. The defendants admitted the obstruction,
but denied the right of way. The plaintiffs proved
that the right was peaceably and openly enjoyed,
and actually used by them, claiming title thereto
as an easement and as of right, \\ithout interrup-
tion, from before 1855 down to November 1875,
since when no actual user of the way by the plaintiffs
had taken place. The lower Appellate Court dis-
missed the suit on the ground that the plaintiffs had
made no actual use of the way within two years
previous to the institution of the suit. Held,
reversing the decision of the Court below, that, not-
withstanding Act XV of 1877, s. 26, illus. (h),
actual user within two years previous to the
institution of the suit is not necessary, in order
that the right claimed mav be acquired under
Act XV of 1877, s. 26. Illustrations in Acts of
the Legislature ought never to be allowed to control
the plain meaning of the section to which they are
appended, especially when the effect would be to
curtail a right which the section in its ordinary
sense would confer. Koylash Chunder Ghose v.
SoNATUN Chung Bakoote

I. li. R. 7 Calc. 132 : 8 C. L. R. 281

ll'_ ~ ; Easement — Pre-
scription— Right of way — Continuance of enjoy-
ment as of right — Cessation of user — Actual user.
No rule can be laid down as to what would or would
not constitute a continuance of the enjoyment as
of right of a right of way, when there has been no
exercise it for any given period ; that must depend
upon the circumstances of each case and the nature

LIMITATION ACT (XV OP 1877)— con«.
s. 26— con<i.

of the right claimed. For the plaintiff to succeed
in a suit for the declaration of a right of way, aE
acquired under s. 26 of the Limitation Act, conced^
ing that he need not prove an actual user of the waj
up till the end of the statutory period of twenty
years, there must, when there is no user for a lone
time, be circumstances from which the Court car
infer the continuance of enjoyment as of right ovei
the whole statutory period, and the cessation of the
user must be at least consistent with such continu
ance. The enjoyment required by the Act canno'
be in abeyance, and at the same time continue so a
to give the plaintiff the special right claimed. Th-.
question of continued enjoyment is an inference
to be drawn from facts, rather than one of fact
and if there are no facts to sustain the inference, a
decision in favour of such enjoyment cannot stand
The plaintiffs sued the defendant for the deelaratior
of a right of way, as acquired under s. 26 of tht
Limitation Act, over a plot of land belonging to th(
defendant. It was alleged that in April 1892 tb
defendant dispossessed the plaintiffs from tb
dominant tenement ; and that the plaintiffs suec
the defendant for recovery of possession of it unde
s. 9 of the Specific Relief Act, and, having obtainec
a decree, got possession on the 19th June 1895
It was further alleged that thereupon the defend
ant, on the 21st June 1895, obstructed the disputee
way by erecting sheds. The present suit was in
stituted on the 25th November 1895. Held, that
the enjoyment of the right of way on the part of th
plaintiffs not having continued until within tw
years of the institution of the suit, the suit must fai
Koylash Chunder Ghose v. Sonatun Chung Barooii
I. L. R. 7 Calc. 132, distinguished. Janh.i\
Chowchuraniv. Bindu Bashini Chowi^htirani
I. L. R. 26 Calc. 59
3 C. W. N. 611

12. Suit to restrai

co-sharer from appropriating portion of properly I
his oivn particular use. The Limitation Act, I87i
s. 27, does not apply to a suit to restrain one cc
sharer in a joint property from appropriating to hi
own particular use a portion of such property with
out the consent of other co-sharers. Bissambha
Shaha v. Shib Chunder Shaha . 22 "W. B. 2

13.

Easement-

Riparian proprietors — Obstruction to flow of draina:
water — Prescription — Right of action — Special dan
age. Held, that the right of a superior riparian pre
prietor to have the drainage water from his lane
permitted to flow off in the usual course is not a
easement within the meaning of Act IX of 187
Held, further, that the defendants, lower riparia
proprietors, who had obstructed such a right of tb
plaintiff by blocking up the stream, could onl
justify their act if they had acquired an easemer.
to do it, that their act was actionable whetlu
special damage had or had not accrued, and tha
so long as the obstruction was continued, there wa
a continual cause of action from day to day. Tb
English law of prescription and the provisions (

( 6961 )

DIGEST OF CASES.

( 6962 )

LIMITATION ACT (XV OF 1811)— contd.

8. 26—contd.

s. 27, Act IX of 1871, considered. Subramaniya
Ayyae v. Ramachandra Rau

I. L. R. 1 Mad. 335

14.

Construction of

statute — Act when applicable to Crown — Easement —

Profit a prendre — RigJit of pasturage clai^ned by a

village against Government — Prescription — Custom.

The rule of construction according to which the

Crown is not affected by a statute unless specially

lamed in it applies to India. Semble : The pro-

•isions of s. 26 of the Limitation Act (XV of 1877)

• J not apply to the Crown. The mere mention of

:he Crown in an Act has not the effect of making all

Is provisions applicable to the Crown, and s. 20

loes not relate to the limitation of suits, but to an

•ntirely different matter, viz., the creation of rights

')y the enjoyment of them, which is a branch of the

ubstantive law. The section is clearly in prejudice

if the Crown's rights, and the other provisions of the

^ct do not afford sufBeient evidence of an intention

hat this section should apply to the Crown. The

ule of English law, that a claim to a profit a prendre

annot be acquired by the inhabitants of a villai;e,

ither by custom or prescription, does not apply to a

ight of pasturage claimed by a village in the Pre^i-

ency of Bombay as against the Government. The

ight of free pasturage has alwaj's been recognized

s a right belonging to certain villages, and must

lave been acquired by custom or prescription. The

I'laintiffs, who were the inhabitants of the village of

)ani Limbda, sued for themselves and the other in-

abitants to establish their right to graze their cattle

n the banks and the dry part of the village tank

'handola, and for a perpetual injunction restraining

i|ie defendant from interfering with such right. The

efendant contended, inter alia, that the tank was

harabo or waste land, that it had never been set

part under the Land Revenue Code, s. 38. for

irazing purposes, and that the plaintiffs could not

cquire, as against the Government, a right of graz-

iig by prescription. The Court of first instance held

lie defendant not excluded from the operation of

26 of the Limitation Act (XV of 1877), but found

lat there was a break in the period of prescription,

ind therefore rejected the plaintiffs' claim. The

iiwer Appellate Court held that there was no break,

[nd awarded their claim. On appeal by the defend-

it to the High Court : — Held, restoring the decree

' the Court of first instance, that the suit should be

smissed. Whether the plaintiffs" claim was con-

dered with regard to s. 26 of the Limitation Act or

|> the general law of prescription, it was essential

lat the user should have been as "of right " to

•aze cattle on the tank in question. But the right

free pasturage which certain villages enjoy accord-

g to the recognized custom of the countrv, and

]nich was admittedly enjoyed by tlie plaintiffs'

I'lage, does not neces.sarily confer the right of

jisturage on any particular piece of land, although

jmay confer the right of having sufficient land set

;>art for the purposes of the village, and in the

>sence of special circumstances pointing to the tan k

LIMITATION ACT (XV OF 1877)— contd.
8. 26— confd.

in question having been used for grazing by the
villagers in exercise of a right other than and in-
dependent of the aforesaid right, the user by the
plaintiffs could only be referred to that general right.
Secretary of State for India v. Mathtrabhai
I. L. R. 14 Bom. 213

15. ^- — Enjoyment as of

right for twenty years — Right of ownership — Eight of
easement as distinguished from a right of ownership
— Bombay Regulation V of 182!', s. 1 — User.
In order to acquire an easement under s. 26 of the
Limitation Act (XV of 1877), the enjoyment must
have been by a person claiming title thereto as an
easement as of right for twent}' years. Evidence of
immemorial user adduced in support of a right
founded on ownership does not, when that right
is negatived, tend to establish an easement. Quaere :
Whetiier upon a correct construction of s. 1 of
Regulation V of 1827, which applies to the ac-
quisition of easements, the mere user would be
sufficient to establish the right to the easement
claimed. Chunilal Fulchand v. Mangaldas
Govardhandas . . 1. 1. R. 16 Bom. 592

16.

Right of way-

User as of right — Onus. In a suit to establish a right
of way, the propriety of the English rule that the
presumption from user should be that it is as of
right, must depend upon the circumstances not only
of each particular case, but also of each particular
country, regard being had to the habits of the people
of that country. It would not be right to draw
here the same inference from user that would be
proper and legitimate in a case arising in England.
Under s. 26 of the Limitation Act the onus is upon
the plaintiff to prove that the user was as of right.
i KiiODA Bux V. Shaikh Tazaddix (1904)

8 C. W. K . 359

17. Cultivators—

Indigo concern — Zamindars — Waste lands — Decree,
form of. The plaintiffs, resident cultivators of
villages belonging to the defendants, the pro-
prietors of an indigo concern, claimed a right
of free pasturage over the waste lands of the
villages, and the Subordinate Judge made a
decree in accordance with the finding of the two
lower Courts that the plaintiffs had enjoyed th«5
right without interruption from time immemorial.
The High Court, in second a jipeal, differing as to the
nature of the right and the character in which it was
claimed, set aside the decree and made an order of
remand for the case to be decided in accordance with
their remarks. On appeal the Judicial Committee
discharged tiie order of remand as unnecessary, and
restored the deci-ee of the Subordinate Judge with
the addition of a clause that the decree should not
prevent the defendants or their successors in title
from cultivating or executing improvements upon
their waste lands, so long as sufficient pasturage
was left for the plaintiffs : Held (agreeing with the
judgment of the High Court), that the right claimed

DIGEST 01' CASES.

( 6964 )

lilMlTATION ACT (XV OF 1617)— contd.
s. 26 — concld.

was not a right in gross. Bhola Nath Ntjndi v.
MiDNAPOBE Zamindari Co. (1904)

I. L. E. 31 Calc. 503

s.e. 8 C. W. K". 425

L. K. 31 1. A. 75

- s. 26, Sch. II, Art. 47—

See Riparian Owner.

I. L. R. 35 Ca!c. 851

s. 26, Sch. II, Arts. 49, 120—

See post. Art. 145 . 8 C. W. IT. 500
s. 28 (1871, s.r29)—

See ante, ss. 23 and 28 and Sch. II, Arts.

120, 142 and 144.
See Foreign Court, Judgment of.

I. Ii. B. 2 Mad. 400

See Guardian and Ward.

I. Ii. R. 30 Mad. 393

See Malabar Law — Mortgage.

I. L. B. 13 Mad. 490
See Onus of Proof — Limitation and
Adverse Possession.

I. L. B. 14 All. 193
See Possession— Adverse Possession.

I. L. B. 21 Bom. 509
-See Possession — Evidence of Title.

I. L. B. 1 Bom. 592
See Res Judicata — Judgments on Pre-
liminary Points. I. L. B. 21 Bom. 91

meaning of " possession " -

See Mortgage— Redemption— Right of
Redemption . . 6 C. W. N. 601

Effect of Law of

Limitation (Act XIV of 1S59). The Indian Law of
Limitation (Act XIV of 1859) as to reality was
held to bar the remedy, but not to extinguish the
riwht. Doe d. Kullammal Kuppu v. Pn.LAi

1 Mad. 85

Venkopadhyaya v. Kavari Hengusu

2 Mad. 36

2. ■ Extinction of

right as well as remedy. The rule of law laid doMn
by the Privy Council that a person entitled to an
interest in immoveable property loses, not only all
remedy, but his title, by being out of possession for
more than twelve years, was held to apply to the
case of a recusant proprietor ciaiminff raRJikana,
Chummun v. Om Koolsoom . . 13 W. B. 465

Limitation in

relation to persons in undisturbed possession — Delay.
The law of limitation operates against parties who
have been guilty of delay and in favour of persons in
possession. S. 28 of the Limitation Act has no
application to persons who are in possession, and

LIMITATIOM- ACT (XV OF 1877)— conW.
s. 28— contd.

who have had no occasion to sue for recovery o
possession. Orr v. Sundra Paitdia

I. Ii. B. 17 Mad. 25£

4. — Regulation VI o

1831 (Madras), s. 3 — Village service inam — Villag.
blacksmith. The mortgagee of maniam land at
tached to the hereditary' office of village blacksmitl
sued in the Court of a District INIunsif for possession
to which he claimed to be entitled under his mort
gage ; and there was evidence that he had been ii
possession for many years up to a date not Ion;
prior to the suit. Held, that, as the plaintiff coui
have sued only under Regulation VI of 1831 in i
Revenue Court, he could not, under Limitatioi
Act, 1877, s. 28, acquire a title by prescriptioi
to the land. Pichuvayyan v. Vilakkudaya>
AsARi . . . I. L, B. 21 Mad. 134

and Bom. Beg. V of 1827-

Cause of action to estnhl'sh title and obtain arrear
founded on that title. Where there has bee!
no recognition of title, nor any payment of due
within the period of limitation prescribed by law
there is a sufficient bar to the claimant's right ti
recover, if he ever had any. The cause of actio)
to establish title and the cause of action to rec'ove
arrears which rest on such title are not distinc
and independent of each other so that if the forme
be barred, even those arrears which may be \nthi'
the law of limitation cannot be recovered. Mae

VALA BIN GiNAPA V. BhAGVANTA BtN DeVJI

9 Bom. 26t

0. Trees— Lam

Trees growing upon land are " land " within th
meaning of s. 29, Act IX of 1871. Possession c
land by a wrong-doer for twelve years not onl;
extinguishes the title of the rightful owner of sue
land but confers a good title on the wTong-dcei
Jagrani Bibi v. Ganeshi . I. L. B. 3 All. 43<

Possession

land forming endowment. When the land in su)
was alleged to have formed an endowment, it wa
held that the plaintiff by his twelve years' occupa
tion had acquired a title, even though his vendc
had not had power to alien the property. Nui
SINGH Dass v. Moosharoo Bhandaree

25 W. B. 28;

8, ■ Possessory titk-

Mortgage— Receipt of rent by co-owner of equity v
redemption for fifteen years. Where the equity ('
redemption of a certain estate became, on the deat
of the mortgagor, the property of two divide
branches of a Malabar tarwad, and the rents an
profits of the land paid by the mortgagee wei
enjoyed exclusively bv K, the representative of on
branch, for fifteen years '.—Held, that K had nc
acquired thereby a title to the estate m^lt^agec
Chathu v. Aku . . . I. L. B. 7 Mad. 2

9_ Suit for herediiar

office and for account. Where the plaintiff's rigf
of succession to an hereditary office accruea

f 6965 )

DIGEST OF CASES.

:MITATI0N act (XV of I8n)^ contd.

s. 28—contd.

7, when A took it under a ^vill, and it was held
1 pcFfession vas' adverse to the plaintiff : — Held,
It plaintiff vas precluded from setting up a fresh
it as accruing to him on the death of A as the
I ; male survivor of the founder's familj' by the
. dsions of s. 29 of the Limitation Act, IX of

tl. MaNALLY ChE>-NA KeSAVAEYA v. MANGAr-p

'.J5ELINGA . . . I. Ii. E. 1 Mad. 343

Adverse pos-

uon — Bar of remedy and extivguishment of riglit-
)(',. The 28th section of the Limitation Act of
i extends the doctrine that twelve years' ad-
te possession of land not only bars the remedy
f le rightful owner, but extinguishes his right to
T'erty other than land ; but per Gaeth, C.J., —
hre: ^Yhethe^ this principle would apply to
,es. Ram C'hundee Ghosaul v. Jtjggutmonmo-
ii;y Dabee

I. L. E. 4 Cale. 283 : 3 C. L. E. 336

i — ■ — ■ Operation if

A-tuiion Act IX cf 1871 and Act XV of 1S77.
1 Limitation Acts (IX of 1871 ard XV of 1877)
atrly bar the remedy, but do not extinguish the
pi. Nursing Doyal I'. HiTREYHUR Saha

I. L. E. 5 Calc. 897 : 6 C. L. E. 489

JHESH Lal V. BrsrNT Kumaeee

i I. Ii. E. 6 Cale. 340 : 7 C. L. E. 121

> Tilling the case of Krishna Mohan Bose v.
)iiLMOM Lossee . I. L. E. 3 Calc. 331

N'COB Ceukdeb Bose v. Kally Coomab
iisE . . . . I. L. E. 1 Calc. 328

iD Ram Chundeb Ghosaul v. Juggutmonmo-
irjY Dabee . . . I. L. E. 4 Cale. 283

ee,&\io, Valia Tamburati ?>. Vira Rayan
I. L. E. 1 Mad. 228
mi VIadhavau v. Achuda I. L. E. 1 Mad. 301
•;. and Arts. 91 and 95 —

Eriguishment of right and title — Plea of fravd
—\audulent sale — Vendor's right to plead fraud
af\ tuelve years from the date of sale — Vendor
in purchaser. In 1872 the plaintiffs induced the
iiri: defendant by fraud and misrepresentation I0
'X( ite in their favour a deed of sale of the property
n ipute. They did not pay the purchase-money
101 btain possessicn of the Property. The defend-
vni, ■email ed in possession, and in 1873 mortgaged
jrcrrty with possession to defendants Kos. 2 and 3
iiKjii 1880 fold it to defendant Ko. 2. In 1884 the
>la :iffs sued for possession of the property relying
an jeir title under the sale-deed. The defendant
m];vched the deed as fraudulent and disputed the
!>la:tiffs' title. The plaintiffs contended that, as
^he!efendant had rot sued to set aside the deed
un e ground of fraud within three years, as pio-
vidj^by art. 91 or 95 of the Limitation"Act (XV
ot |77), or within twelve years fiom the date of
'a«jit was to late for him to set up the plea of
irai', ^ Held (Scott, J., doubting), that the defend-
MtjrigLt to ra se the plea of fraud was not barred

LIMITATION ACT (XV OP l6^^)- contd.

3. 28— contd.

by the law of limitation. Per Scott, J. — There was
another point of limitation which could be raised.
The consideratic n-money was never paid by the
plaintiffs, and possession was never given. Theie
was no complete contract of sale passing the pro-
perty. Therefore the plaintiffs' only right was to
sue for specific performance of the contract. Such
a suit, however, became barred in three years after
the date of the contract. The plaintiffs therefore
had lost their rights again'jt defendant Ko. 1 ; and
even if they have not the present cla'm for posses-
sion as against defendants iNos. 2 and 3 mu^t fail as
defendant ]\o. 2 was mortgagee and defendant iNo. 3
wsLsbovd ^c/e purchaser for value, and no satisfac-
tory evidence was given by plaintiffs, on whom lay
the onus that these defendants had notice of the
deed of sale. Per Jardine, J — S. 28 of the Limita-
tion Act (XV of 1877) does rot apply to the ca.se of
defendants, who rely on an actual possession which
has never been disturbed. Hargovandas Lakhsmi-
DAS V. Bajibhai Jijibhai . I. L. E. 14 Bom. 222.

13. ' ■ Civil Procedure

Code, 1882, s. 214 — Right of pre-emption asserted ly
one in possession under an oiti mortgage in Mala-
bar^ Limitation Act, Sch. II, Art. 10. Land in
Malabar was in the possession of the defendants and
was held by them as otti mortgagees under instru-
ments executed in August 1873 and January 1876.
The plaintiff having purchased the jenm right
under instruments executed and registered in May
and June 1877, now sued in 1893 for redemption.
Held, that the defendants' right of pre-emption was
not extinguished under Limitation Act, s. 28, and
that they were not precluded from assertine it by
art. 10 owing to the lapse of time, and that the Civil
Procedure Code, s. 214, was inapplicable to the case
because the persons asserting a right of pre-emption
wei 8 in possession. Krishna Menon v. Ki swan-
I. L. E. 20 Mad. 305

14. . . Limitation Act

{XV of 1877), ss. 7, IS and 28, and Sch. II,
Arts. 142, 144 — Joint family — Separate estate —
Possession, discontinuance of — Property, extin-
guishment of right to. Under s. 7 of tie Limita-
tion Act, a person under disability canntt biing
his suit after three years after the disability ceases.
Under s. 28 of the Limitation Act, the right of
a person to property is extinguished at the deter-
mination of the period limited for bringing a suit
for possession of it. Vasudeva Padhi Khadanga

GaEU v. MaGUNI DeVAN BaKSHI MAHAlWTRtLU

Gaeu (1901) . . . 5 C. W. N. 545

s.e. I. L. B. 24 Mad. 387-

L. B. 28 I. A. 81

8. 28, Art. \\\—Sale of land— Posses-

sion retained by vendor — Suit to recover possession
seven years thereafter — Non-payment of purchase
price pleaded — Vendor's lien not extinguished,
A sale-deed had been executed in plaintiff's
favour more than seven years before the present stiit,.
bjut the purchase-money was not paid and the vend-

DIGEST OF CASES.

( 6968 )

IjIMITATION act (XV OF 1811)— contd.
s. 28 — contd.

ors continued in possession of the land. On the
present suit being filed fora declaration of plaintiff's
right and for the recovery of possession of the
land : — Held, that the vendors had a charge, by
operation of law, on the property sold, for the
purchase- money. As the purchaser had not paid
the price and had taken no steps to recover jDosses-
sion, the vendors were not bound to sue to enforce
their lien. Though a suit by the vendors to enforce
their lien would have been barred by limitation
under Art. HI, when the present suit was filed,
their lien was not extinguished by s. 28 of the Limit-
ation Act, and inasmuch as they were still in posses-
sion they had a right to retain possession, until
the purchase-money should be paid and the lien be
extinguished by such payment. Umedmal Motiram
V. Davu bin Dhondiha, I. L. R. 2 Bom. 547, ap-
proved. SUBRAHMANIA AyYAB V. POOVAN (1902)

I. L. R. 27 Mad. 28
s. 28, Art. 14:2— Suit between

third parties — Delivery of present defendant s
land in execution — Present defendant not a party —
Knowledge of delivery — Acquiescence — Failure to
apply for re-instatement — Dispossession for more
than twelve years — Extinction of title. The title
to a piece of land was (apparently) vested in de-
fendant prior to 1877, and defendant till then
(apparently) had possession of the land. In 1867
a suit was brought by the father of the present first
plaintiff against a third party for the recovery of
the land. The present defendant was not a party to
that suit. In 1874, in execution of the decree in that
suit, passed in favour of the plaintiff therein, the
Subordinate Court appointed a Commissioner to
make a local investigation and submit a report show-
ing the land to be delivered to the plaintiff therein.
The Commissioner personally inspected the land
and, in his report, mentioned that the present
defendant, though not a party to that suit, raised
the objection that the boundaries fixed by the
■Commissioner of the land to be delivered to the
plaintiff therein included land belonging to the
present defendant. The report was considered by
the Subordinat ^ Judge, but the present defendant
apparently did not appear before him, and the
Subordinate Judge heard the parties to that suit
and confirmed the plan prepared by the Commis-
sioner and ordered delivery to be given to the
plaintiff in that suit of the land shown in- the plan.
That order was modified by the District Court
and in 1877, a warrant of delivery was issued by the
District Judge to the Nazir, directing him to deliver
possession of the property to the plaintiff therein and
to eject the person in enjoyment of the land, if he
should refuse to quit. This warrant was executed
but, as the marks which had previously been placed
on the land had been washed away, the Nazir fixed
the boundaries again, on this occasion also the
present defendant's officials appeared before the
Nazir and objected to his delivering over the land,
And requested him to communicate their objection
to. the Court. The delivery was, however, made

LIMITATION ACT (XV OP lSll)—ctmk

s. 28— conid.

to the plaintiff in that suit, in the presence of 1;
present defendant's officials, and in spite of th'
objection raised on his behalf. In 1889, the pres(
suit was instituted by the son of the plaintiff in t
former suit (and another) to recover possessii
of the same piece of land, when it was objec'l
for the defendant that, though the delivery of m
land in 1877 might be operative as a transfer:
possession to the decree-holder as against ii
defendant in that suit, it did not amount to a c-
possession of the present defendant, if possesri
was then in fact and in law with him. Held, 1 ;
the defendant had been disjiossessed. The ci-
tention now raised on his behalf might hs!
prevailed, if the delivery of possession had been wn
without the present defendant's knowledge. It
inasmuch as such delivery had been made in i;
presence of the present defendant's officials andi
sp t3 of their objections, it could not be said that ;
present defendant had not been dispossessed sim ;
because possession was not delivered byenclos;
the land with fences, though the boundaries wi:
marked. Having regard to the nature of the lai,
nothing had to be done beyond what was donei
effect delivery of possession. If, therefore, pos.'-
sion and title were really with the defendant at ;
time, he could have applied to the Court unde:.
2.30 of Act VIII of 1859, complaining of the deliv/
of possession and praying for his reinstateme,
Defendant had, however, taken no action in ;
matter, but had acquiesced in the proceedir,
either because he really had no title to po&sessioit
because he was indifferent and he had not cu-
vated the land, since delivery of possession had l>i
given. The defendant's title, if any, had therele
become extinguished in favour of the plaintiff iir
about 1889, under the combined operation of art i
142 and s. 28 of the Limitation Act. Koch

LAKOTA VeKKATAKRISTNA RoW V. VaDRI ^

Venkappa (1904) . . I. li. B. 27 Mad. 2J

s. 28, Arts. 142, 127, 124— i-

gious Endowments Act — Trudees of tempi-
Hereditary trustees — Management by rotatiot-
Discontinuance of possession of trust propertiei'l
junior branch of trustees — Continuous possessioni
members of senior branch — Extinction of rights''
junior branch in fivour of senior branch. On f
death of the last sole trustee of a public religi -^
institution, the trusteeship of which was hereditiv
in his family, without beneficial interest in the ti '
propertjf or income, the office devolved by inhe-
ance on his male descendants by his two wi*-
Until 1881, the management was conducted by ''I
two branches respectively in rotation, each actt,
for a year. Since 1882, the members of the jui r
branch had discontinued possession of the inimc'-
able properties belonging to the trust as also ]■■
formance of the duties usually appertaining to «
office of trustee, and the members of the sei'r
branch had been, in turns, successively in pos|-
sion of the properties and had performed the dub.
to the exclusion of and adversely to the meml"^

DIGEST OF CASES.

( 6970 )

dITATION ACT (XV OF 18n)-conld.

s. 28—contd.

le junior branch, and the High Court found that
e had been an ouster of the members of the
or branch for about 19 years prior to ttie present
, and that the members of the senior branch
been in turns successively^ in possession of the
Derties and had performed the duties of the
:e of trustee, to the exclusion of and adversely
;he members of the junior branch. Plaintiff,
1 of the last sole trustee by his senior wife, now

I a grandson of the last sole trustee, whose father
! liso a son by the senior wife, to enforce his turn
■ 'anagement b\- the institution. Since 1882,

I I iff had been managing, not only during the
;■> of his own turn, but also during the years of the
1 5 of the members of the junior branch, who,
i, tiff alleged, had transferred their turns to him.
;;is contended for the defendant that, inasmuch
I'e plaintiff had not himself been in continuous
j'ssion for 12 years, and the possession of the
? idant and of the other two members of the
rr branch during the 19 3'ears had not been
i rse to the members of the junior branch, the
j; s of the latter could not be barred under Art.
I- Held, that the right of the members of the
|i r branch as co-trustees had been extinguished,
h ler the api^ropriate Article be 127, 142 or 124.
a of the members of the senior branch must be
ei ed, in law, to have held and discharged the
an of the office on behalf of himself and the other
le |bers of the senior branch, to the exclusion of the
inr branch. Consequent!}', the office and the

rties had been for more than 12 years held and

?sed by the members of the senior branch as

.tie body, adversely to the members of the

in:- branch, as a bodj', and the rights of the latter

iOiK'n, by the operation of s. 28 of the Lamitation

cl|:xtinguished, not in favour of the plaintiff

i<lldually, but in favour of the members of the

■ri branch as a body. The defendant could not,

iPjore, plead, in bar of the plaintifl"s claim,

lalhe junior branch, or one of its members,

no ot the plaintiff', was entitled to succeed him

it turn of management. A right to manage by

Jt< on by each of several co-trustees in turn is not

ne lat can, as between the trustees themselves,

(uired merely by the operation of the law of

tion. But held, that plaintiff was entitled

; rehefs sought for upon the basis of the

e of management, under which management

ation was proA-ided for. A scheme of man-

nt. which has been framed and acted upon by

"t's, cannot be revoked at the will and

f any of them. It is competent for co-

■ settle a scheme of management by each

irustees in rotation, at any rate where no

its are attached and the office is an here-

Where emoluments are attached and

is hereditarj-, the emoluments will be

' jiartition, in the strict sense of the term,

■ .• other family property. But whatever

'fy e the number of co-trustees the office is a

5»n' ne and the co-trustees all form, as it were,

'It e collective trustee, and therefore must exe-

LIMITATION ACT (XV OF 1877)— contd.

cute the duties of the office in their joint capacity.
Management by members of undivided and divided
families discussed. It would be competent for a
Court, in the exercise of its equitable jurisdiction,
to settle a scheme for the management of a pubhc
religious or charitable trust by the various co-
trustees in rotation. Sri Raman Lalji Maharaj v.
Sri Gopal Lalji Maharaj, I. L. B. Hi All. 428,
discussed. Ramanathan Chettv v. Murttgappa
Chetty (1904) . . I. L. R. 27 Mad. 192

Schedule II.

Art. 2-

Sce post. Art. 28 . . 7 C. W. N". 728
Ste Bombay Municipal Act (Bom. Act
III OF 1888), s. 527.

I. L. R. 25 Bom. 387
See Limitation . I. L. R. 31 Calc. 228
Arts. 2 and '2.8^Suit for com-
pensation for an illegal distress — Limitation —
Principal and agent — Liability in tort of principal
for acts of agent. Where the Secretary of a Municipal
Board acting under orders from the Chairman of the
Board procured the issue of a warrant of distraint
for a sum exceeding what was due from the person
against whom the warrant was obtained and pro-
ceeded to seize and sell the goods of such person :
Held, that the Municipal Board was liable for
the acts of its Secretary whether or not there had
been any resolution of the Board directing the Secre-
tary to obtain a warrant of distraint for the parti-
cular sum for which the warrant was issued. Held,
also, that a suit to recover damages on account of the
illegal issue of such warrant and the subequent
distraint was governed as to hmitation by art. 28
of the second schedule to the Indian Limitation Act,
and not by art. 2 of the same schedule. Smith v.
Birmingham and Staffordshire Gas Light Cornpany,
1 Ad. & El. 520, referred to. Municipal Board
OF MussooRiE V. Good ALL (1904)

I. li. R. 26 All. 482

Art. 3 (1871, art. 3 ; 1859, s. 15)—

S. 15 of Act XIV of 18.')9 was repeaied by, and
its provisions re-enacted in, the Speciffc Relief Act
(I of 1877), s. 9 of which is in similar terms, with
the addition of the modification made in s. 15 by
s. 26 of Act XXIII of 1861, and an additional
provision that no such suit shall be brought
against the Government.

1. -— Suit to recover

paramba after forcible dispossession. S. 15 did not
abridge any rights possessed by a plaintiff, but it
was intended to give him the right, if dispossessed
otherwise than by course of law.'to have his posses-
sion restored without reference to the title on which
he held. Where a plaintiff sued to recover a par-
amba of which he alleged that he was owner and
that the defendant had forcibly dispossessed him : —
Held, that the suit was not barred by s. 15. Kunhi

( 6971 )

DIGEST OF CASES.

LIMITATION ACT (XV OF 1817)— contd.
Schedule II — conld.

Art. 3 — concld.

KoMAPEN KuRUPU V. Changarachan Kandil
€hembata Ambtj . . 2 Mad. 313

See KuMUL Dutt v. Mohun Molla

15 W. R. 278

2. Unlawful dis-
possession by Government Ofjicers. When a Deputy
Collector, acting as agent for a minor, uses powers
which belong'^to the Government alone for the re-
sumption of invalid lakhiraj tenures, and by virtue
of those powers resumes lands for the benefit of
the minor and unlawfully dispossesses the previous
holder, — Qiicere : Wliether such a dispossession is
within the contemplation of s. 15, Act XIV of 1859,
or not. That section does not confer on the person
who unlawfully acquires possession of land the ad-
vantage of a short period of limitation, on the
expiration of which the dispossessed person is bound
to show an absolute title to recover. It gives to
the dispossessed person who has been wrongfully
deprived of possession a right to recover possession
witliin six months without regard to any title, how-
ever clear, which may be set up against him. If
he sues after six months have expired, the parties
to the suit are left in the same condition as they
would have been in under the former law with
reference to the production of proof. Protab
Chunder Burooah v. Kantaeswurree Dabee

2 W. R. 250

3. Proof of title-
Possession. In a suit brought on the 11th March
1872, to recover certain plots of land (a) as re-
formations after diluviation of lands which had
belonged to the plaintiffs and as accretions thereto ;
(h) under a title by prescription ; it appeared that
the lands had formed in the bed of a river in 1859,
and that the plaintiffs took possession thereof as of
re-formed lands and had been maintained in pos-
session under awards under Act IV of 1840, but that
in 1868 they were ousted by the Collector who
assessed the same under Regulation XI of 1825 and
settled them with the co-defendants. Held, that s.
15, Act XIV of 1859, barred the plaintiff's right
to recover simply on the strength of their previous
possession witlaout entering into the question of
title ; the suit not having been brought with'ii six
months of dispossession. Wise v. Ameerunnissa
Khatoon. Wise v. Collector of Backergunge
Ii. R. 7 1. A. 73

4. Suit by non-
occupancy rail/at for recovery of possession — Limi-
tation Act, 1877, Sch. II, Art. 3— Specific Relief
Act {I of 1S77), s. 9— Bengal Tenancy Act (VIII
of 18S5), s. 89. The limitation applicable to a
suit to recover possession by a non-occupancy
raiyat, who has been dispossessed from his holding
by his landlord otherwise than in due course of
law, is 6 months from the date of dispossession.
Ramdhan Bhadra v. Ram Kumar Dey, I. L. R. 17
Gale. 926, dissented from. Bhagabati Charan
Roy v. Luton Mondal (1902) . 7 C. W. K". 218

LIMITATION ACT (XV OF 1877)-<on

Schedule II — contd.
Arts. 6, lib-
See Contract Act (IX op 1872), s. 74
I. L. R. 31 Mad. 4

Art. 7 (1871, art. 7 ; 1859, s. 1,1

2)-
1. _

; Suit for serve'

wages. Asuit for servant's wages was governed j
the limitation prescribed by cl. 2, s. 1. Noi
Chtjnder Mozoomdar v. Kenny

5 W. R. S. C. C. Re J

2. Household r

vant — Labourer — Temple servant. A person wL«
duties are to sweep and clean a temple, prove
flowers for daily worship and garlands for the id
is not a household servant within the meaning f
art. 7 of sch. II of the Limitation Act. Mtri-
rangot Manakal Bhavathradan Bhatta Titi-
PAD V. Erangot Trikovil Pishareth Rav
Pisharoti . . . . I, L. R. 7 Mad. 8

3. Suit for arrean^

monthly payment for instruction. A suit for arrtri
of a monthly payment agreed to be made fori
struction in fencing and wrestling is not goveni
by tlae 7th clause of the Limitation Act, as 1 1
clause does not apply to the pay of a teacher r
instructor. Pylwan Jarkan Sahib Vasthath.
Jenaka Raja Tevar ... 8 Mad. 1
4. Chowkida-

Servant. Under Act XIV of 1859, a chokwi r
was held to be a servant within the meaning oii.
1, cl. 2, of that Act. Golamee v. Poslan

18 W. R. 8

The following were held not to be servants :—
A manager of a company. In the matter of t
Ganges Steam Navigation Company

2 Ind. Jur. N. S, ^1
A tahsildar or collector of rent. Arfn CHANti
Man DAL V. Raman ATH Rakhit

1 B. L. R. S. N^C

s.c. Oroon Chtjnder Mondtjl v. Romas a
Rtjkhit .... lOW. R. 50

A mohurir under an amin for batwara p-
poses. Abhaya Charan Dutt v. Haro Chan.-'
Das Bunik . . . 4 B. L. R. Ap. »

s.c. Obhoy Churn Dutt v. Huro Chuk ';
Doss BuYEE . . . 13 "W. R. : '

A mooktear. Nitto Gopal Ghose v. Maci ■
TOSH . . . , 6 W. R. Civ. ReilJ

Employer

labourer. The plaintiff agreed with the defendil
that in consideration of the possession and usf '
certain land and a third of the produce for the .'■
son he would provide seed and labour and carr} ■)
the cultivator's share of the produce. Held, i^"
the parties were not in the position of empk'^
and labourer. Andi Konan v. Venkata Sf|-
baiyad 2Mad. .■?

( 6973 )

DIGEST OF CASES.

MirATlON ACT (XV OF 1877)— contd.

Schedule 11— contd.
Art. 7—^concId.

L'nder the present Limitation Act, the servant
ist be a household servant to come within Art. 7.

Suit by one ser-

nt against another. CI. 2, s. 1, applies only to suits
■ wages brought by a servant against the person
ble as the master in whose service he had been
ploj'ed, and the section does not apply to a suit
)ught by one Government servant against
ather for the recovery of a sum of public money
eived by the defendant as a disbursement on
>unt of the wages of the plaintiff, to whom the
endant was legally bound to paj' it over. Siva
MA PiLAi V. TuRNBULL . . 4 Mad. 43

r. Suit for servant's

gea — Fixed monthly salary. Where a servant is
pointed on a fixed monthly salary, and there is
thing to show that the salary is to be paid in
ranee, the limitation as to each month's salary
nmences from the time at which the salary became
?, i.e., the end of the month, and not from the
e of the dismissal of the servant. Kali Chukn
rTER V. Mahomed Soleem

6 W. R. Civ. Ref. 33

sLl)-

Art. 10 (1871, art. 10 ; 1859, s. 1,

- ■ Possessio7i — Con-

idive and actual possession. Under the Act of
>9, the possession necessary under the corre-
nding clause was held to be not a mere con-
ictive possession, but actual manual possession.
JHAiN GoBiND Pershad V. Fatima . 2 W. R. 5
LuMAR Ali V. AzMUT Ali . .8 "W. R. 383
Iahomed Hossein v. Mohsun Ali 7 W. R. 195
I Ai KuAR V. Heera Lal . . 7 W. "W. 5
jlnd under the present Act the cause of action
68 from the obtaining of physical possession in
?8 where it is practicable to obtain it.

Actual possession — Pos-

ton opposed by person without right. The purcha-
cannot be said not to obtain actual possession
■K he is only opposed in taking possession by
le one who has no right to oppose his possession,
mere farmer who was tenant of the vendor.
tUTSv. Mahomed Yakoob Khan

3 W. R. 225

•. — Suit for pre-

tion. In pleading limitation as a bar to a suit
pre-emption the defendant must show that he
in possession more than a year before the plaint
'j filed. Hosseixee Khanum v. Lalltjn

W. R. 1864, 117

^ Pre-emption, Suit

^yCcnditional sale. Where a shareholder, if
I'jesires to transfer his share, is bound to offer the
f sfer of it to his co-sharers, before transferring
t > a stranger, the right of pre-emption, in the

lilMITATION ACT (XV OF 1877)— con«.
Schedule II — contd.

Art. 10 — contd.

case of a conditional sale, under which possession
is not transferred, arises, not when such sale is
made, but when the conditional sale becomes abso-
lute. Under art. 10, sch. II of Act XV of 1877, the
period of limitation runs from the date physical
possession is taken of the whole of the property
sold. Jaikaran Rai v. Ganga Dhari Rai

I. L R. 3 All. 175
Jankee Koer v. Lekranee Koer

W. R. 1864, 285

Suit for pre-

emption— Foreclosure by conditional vendee. The
defendant, a conditional vendee, foreclosed the
mortgage, and subsequently sued the auction-
purchaser of the rights of the conditional vendor
for possession, and obtained a decree, in execution
of which he obtained possession. Held, that the
suit of the plaintiff who claimed pre-emption was
not barred by hmitation, as it was instituted within
one year from the date on which the vendee, whose
purchase was sought to be set aside obtained actual
possession of the property to which his title, ori-
ginally conditional, had become absolute. Rad-
HEY Pandey v. Nund Komar Pandey

2 Agra, Ft. II, 164

6. ■ Pre-emption —

Possession after sale in execution of decree of condi-
tional sale. In 1861, B purchased conditionally
certain immoveable property, which in 1865 was
attached in execution of a decree. In 1874, the
conditional sale having been foreclosed, B obtained
a decree for possession of such property. In Feb-
ruary 1875, he obtained mutation of names in re-
spect of such jjroperty. In November 1875, ar-
rangements having been made by him to satisfy
the decree in execution of wliich such property had
been attached, the attachment was removed.
In December 1875, he acknowledged having re-
ceived possession of such property in execution of
his decree. K sued him in November 1876 to en-
force his right of pre-emption in respect of such
property. Held, that limitation ran from the
date when B obtained such possession of the status
of his conditional vendor as entitled him to muta-
tion of names and to the exercise of the rights of an
owner, and that the suit was barred by hmitation.
The princijDle laid down in Jageshar Sijigh v. Jawa-
hir Singh, I. L. R. 1 All. 311, followed. Bijai
Ram v. Kallf . ' . . I. L. R. 1 All. 592

7. Mortgage — Con-
ditional sale — Time from which period begins to run.
Aconditional vendee, who was in possession, appUed
under Regulation XVII of 1806 to have the condi-
tional sale made absolute. The year of grace ex-
pired in July 1878. In November 1871, the con-
ditional vendee sued for possession of the property
by virtue of the conditional sale having become
absolute. He obtained a decree, in execution of
which he obtained, on the 30th April 1879, formal

( 6975 )

DIGEST OF CASES.

( 6976 )

LIMITATION ACT (XV OP 1877)-

Schedule 11— co7itd.
Art. 10— coiitd.

zontd.

possession of the property according to law. On
the 23rd March 1880, a suit was brought against him
to enforce a right of pre-emption in respect of the
property. Held, that the period of limitation for
such suit ran, not from the expiration of the year of
grace, but from the 30th April 1879, the date the
conditional vendee obtained possession in execution
of his decree. PragChaubeyu. Bhajan Chaudhri
I. L. B. 4 All. 291

(Contra) Buddree Doss v. Doorga Pershad

2 N. "W. 284
8, Purchasehy mort-

gagee— Claim for 'pre-emption — Cause of action.
Where a mortgagee becomes a purchaser of the
mortcraged propertj^ limitation runs from the date
of purchase, as against a claimant by right of pre-
emption. Buddree Doss v. Doorga Pershad

2 N. W. 284

Suit

for pre-
possession.

emption — Purchase by mortgagee
When a mortgagee in possession purchased the pro-
perty mortgaged : — Held, that his possession as pro-
prietor commenced from the date of purchase, and
limitation would run from the date of the purchase
against a claimant by right of pre-emi^tion, and not
from the date he got his name recorded in the rev-
enue record as proprietor. Mahomed Banazeer v.
Gunga Ram .... 3 Agra 260

Pre-emption, suit

10.

for. Held, in a suit for pre-emption, where the
property had been purchased by the mortgagee in
possession, that the purchaser obtained physical
possession of the property under the sale, not from
the date of the sale-deed, but when the contract of
sale became completed. Held, therefore, that the
contract of sale having become completed on the
payment of the purchase-money, the suit, being
brought within one year from the date of such pay-
ment, was witliin time. Lachmi Narain Lal v.
Sheoambar Lal . . . I. L. R. 2 All. 409

11.

Sale by mortgagor

of usufructuary mortgage — Possession of vendee —
Cause of action. When landed property sold by a
mortgagor is at the time of sale in the usufructuary
possession of the mortgagee, the vendee must be held
to have taken possession in the sense of the limita-
tion law at the time when he acquired possession of
that which was the subject of sale, viz., the rights
of the vendor, and of these he acquired full posses-
sion as soon as they had been conveyed to him by
a valid transfer. The limitation of one year pro-
vided by cl. 1, s. 1 of Act XIV of 1859, should be
computed from the date of such possession and not
from the date of actual assumption of possession by
the vendee after redemption of the property from
the mortgagor. Ganeshee Lall v. Toola Ram
3 Agra 376 : s.c. Agra F. B. Ed. 1874, 167
12. Suit for pre-
emption— Came of action. In a suit for pre-emp-

LIMITATION ACT (XV OF 1877)— conW.
Schedule II — contd.

Art. 10— contd.

tion of a share it appeared that the share had bee
first mortgaged to certain persons and afterwan
sold to the defendant, who brought a suit f.
redemption and obtained a decree. Held, that t)
period of limitation of the suit should be calculat"
from the date of the sale, and not from the date
the redemption of mortgage. RusTuivi Singh
Mahurban Singh . . . 5 N. W. 17

13. Pre-emption-
Actual possession — Purchase of equity of redempti-
Held (Stuart, C.J., dissenting), that the p
chaser of the equity of redemjition of immoveal
property, which is at the time of the sale in t
usufructuary possession of the mortgagee, tak
" actual possession " of the property, within t
meaning of that term in art. 10, sch. II of Act II
of 1871, when the equity of redemption is coi
pletely transferred to and vested in him. /
Stuart, G.J. — That such a purchaser does n;
take " actual possession " of the property until •
takes visible and tanigble possession thereof •
enjoys the rents and profits of the same, after i
demption of mortgage. Jageshar Sisqh
Jawahir Singh . . I. L. B. 1 All. 3.

14. Suit for p

emption — Cause of action — Mutation of names-
Sale, Date of. In a suit to enforce the right of p-
emption on a sale of a share of a zamindari esta,
the period of limitation should be computed frci
the date of the sale, not from the date of the mui-
tion of names, the purchaser having acquired by i
purchase such possession as the nature of the p-
pertj' sold admits of. Mutation of names, althoui
it maj' be regarded as evidence that a trans:
has been made, is not essential to give validity '
the transfer. Omrao Khan v. Imdad Axlee Kh.
Mahomed Mashook Allee Khan v. Imdad Ali;
Khan . . . 1 N. W. 9 : Ed. 1873J

15. ■ Suit for ^^

emption — Possession. On the 19th December 19,
A gave T a mortgage of his share in a certain villa-
The terms of the mortgage were that A sho 1
remain in possession of his share and pay the -
terest on the mortgage money annually to ^
mortgagee, who, in the event cf default ia pj-
ment of the interest, was empowered to sue jT
actual possession of the share. On the 19th m
1877, T's name was substituted for thatcf Aia^
proprietary registers in respect of the share. On r
8th February 1878, G sued T and A to enforce [3
right of pre-emption in respect of the share, ail-
ing that his cause of action arose on the 19th W
1877, tnd that A, notwithstanding the mutaticE'i
names, was still in possession. T alleged thatje
had been in possession since the execution f*
registration of the deed cf mortgage. Held, iV^
whether T had been in plenary possession of !«
share since the date of the deed, or whether he P
had only such constructive or partial possessiot'i
it as was involved in the receipt of interest on e

( 6977 )

DIGEST OF CASES.

( 6978 )

.IMITATION ACT (XV OF£1877)-

Sehedule II — contd.
Art. 10 — contd.

zontd.

lortgage -money, the plaintiff was equaly bound to
ave sued within a year from the date of the deed,
id was not entitled to reckon the year from the
ite on \\hich the possession by the moitgagee
■ the share was recognized by the revenue depart-
ent, and the suit was therefore barred by art. 10,
h. II of Act XV of 1877. Gulab Singh v. Amar
KOH . . . . I. L. R. 2 All. 237

16. SvAt to enforce

'€-emption of share of undivided mehal — Physical
jssession. A share in an undivided zamindari
ehal is not susceptible of " physical possession "

the sense of art. 10, sch. II of Act XV of 1877.
imitation, therefoi'e, in a suit to enforce a right of
•e-emption in respect of such a shai-e runs from
le da.te of the registration of the instrument of
le. Unkak Das v. Naeaix . I. L. B. 4 ALL 24

17. and Art. 120— Mahomcda^>-

w — Pre-emition — Conditional sale — Right of pre'
nftion among co-parceners — Privcte partiiion of
ittidari estate. A and B had certain proprietary
ehts in an 8 annas putt i of a certain mehal. C
id D had no rigW s in that putti but D had a
nail share in the remaining 8 annas putti. A
ivate partition between the puttis having taken
ace, C and D's brother lent to B two sums of E200
id R199 by deeds of bai-bil-wufa, dated the 12th
id 21st June 1876. C and D subsequently insti-
ted foreclosure proceedings, and on the 5th May
8-4 were put into possession of B' 5 share in the first
^ntioned putti in execution of a decree which
ey had obtained. On the 18th April 1885, A
ed C and D to enforce his right of pre-emption.
Id, that the suit was not barred by limitation, it
ing governed by either art. 10, sch. II of the Limi-
tion Act (XV of 1877), which gave the plaintiff
.'ear from the 5th May 1884, the date on which the
jrtgagee obtained possession, or by art. 120

:der which his right to sue accrued upon the
ipiry of the six months' grace allowed to the
'itgagor after the decree for foreclosure, and
're would be s-ix years allowed from that time.

OASIBUR MiSSEK V. RaM LaL RoY

I. li. R. 14 Calc. 761

18. ■ . Joint sale of un-

'rided mehal and oilier property. In a suit to en-
iCe a right of ])re-emption in respect of a sale of
!iperty consisting in part of a share of an undi-
i ed mehal, which does not admit of physical pos-
'ji^ion, limitation will run from the date of regis-
'jtion of the instrument of sale. Bh(1T,i v. Imam
f . . . . I. L B. 4 All. 179

j-9. Wajib-ul-urz —

*\ sharers— Effect of perfect partition— ''Physical
i session" — Purchase of equity of redemption by
^\-tgagee in possession. The wajib-ul-urz of three
^lages which originally formed a single mehal gave
E ght of pre-emption to co-sharers in case of trans-

' of shares to strangers. Afterwards the shares in |

VOL. III.

LIMITATION ACT (XV OF 1877)— con<i. "

Schedule 11— contd.
Art. 10— contd.

these villages were made the subject of a perfect
partition and divided into separate mehals. Subse-
quently, by two deeds of sale executed on the 13th
January 1884, and registered on the 17th January
1884, some of the original co-sharers sold to strang-
ers their shares in all three villages. At the time of
the sale, the shares in two of the villages were in pos-
session of the vendees under a possessory mortgage,
the amount due upon which was set off against the
purchase-money. The share in the third village
^\as, at the time of the sale, in possession of another
of the original co-sharers under a possessory moit-
gage. On the 17th January 1885, this last-men-
tioned cc -sharer brought a suit against the vendors
and the vendees to enforce his right of pre-emption
under the wajib-ul-urz in respect of the shares sold
in the three villages. Held, that in the case of the
sale of an equity of redemption by the mortgagor
to the mortgagee in possession, which has the effect
of extinguishing the right to redeem by a merger
of the two estates in the mortgagee, it cannot pro-
perly- be said that any property is sold which is
capable of " physical possession " within the
meaning of art. 10, sch. II of the Limitation Act.
In a statute, such as the law of limitation, which
contemplates notice, express or implied, to
the party to be affected by some act done by
another in respect of which a right accrues to him
to impeach it and as to which time begins to run
against him quoad his remedy from a particular
point, the word " phj'sical " implies some ccrporeal
or perceptible act done which of itself conveys or
ought to convey to the mind of a person notice
that his right has been prejudiced. An equity of
redemption is not susceptible of possession of tl.ia
description under a sale by which it is transferred
and a pre-emptor impeaching such a sale has one
year from the date of registration of the instrument
of sale witliin which to bring his suit. Hdd, there-
fore, that the period of limitation began to run
from the date of the resistration of the deed of sale
and that the suit was within time. Shtam SrxDKR
f. Amanat Begam . . I. L. B. 9 All. 234
20. Suit for pre-
emption based on a mortgage by conditional sale —
Limitation Act, art. 120— "Physical possession. "
Held, (i) that the other conditions being present
necessary to make art. 10 of the second schedule to
Act XV'of 1877 applicable, art. 10 would apply to
a sale wlrich in its inception was a mortgage by
conditional sale, but which, either by the operation
of Regulation XVII of 1800 or by the operation of
Act IV of 1882 had become in effect an absolute
sale with the right of redemption gone, (ii) That
in such a case as above limitation begins to run
where Regulation XVII of 1806 applies, from the
expiry of the j-ear of grace, (iii) That a share in
an undivided zamindari mehal is not susceptible
of " physical possession " in the sense of art. 10
of the second schedule to Act XV of 1877. (It)

10 N

DIGEST OF CASES.

( 6980 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — conld.

Art. 10— contd.

LIMITATION ACT (XV OF 1877)— ^ontd.

Schedule II — covtd.
Art. 10 — condd.

That constructive possession, e.g., by receipt of
rent from tenants, is not " physical possession "
within the meaning of the said article. Ali Abbas
V. Kalka Prasad, I. L. R. 14 All. 405; Nath Prasad
V. Ba7n Paltan Bam, I. L. B. 4 All. 218 ; Goordhan
V. Heera Singh, S. D. A. N.-W. P. [1866), ISl ;
Ganeshee Loll v. Toola Bam, 3 Agra 376 : Jageshar
Singh v. Jaivahir Singh, I, L. B. 1 All. Sll,
and Unkar Das v. Narain, I. L. B. 4 All. 24, re-
ferred to. Batul Begam v. Mansur Alt Khan

I. L, R. 20 All. 315

See Raham Ilahi Khan v. Ghasita

I. L. R. 20 All. 375

and Anwab-ul-Haq v. Jwala Prasad

I. L. R. 20 All. 358

21. ■ Limitation Act

(XV of 1877), Sch. II, Arts. 10, 120, 144— Suit for
pre-emption against heir of mortgagee by conditional
sale — "Physical possession," meaning of — Accrual of
cause of action in suit for pre-emption of property
mortgaged by conditional sale — Expiration of year of
grace. A suit brought to declare a right of pre-
emption against the heir of a mortgagee' by condi-
tional sale, who has foreclosed, is governed, where
the subject of the sale does not admit of phj^sical
possession and there is no registered instrument of
sale, not by Ai-t. 10, but by Art. 120, of Sch. II
to the Indian Limitation Act (XV of 1877) ; and
limitation in such a suit runs from the expiration
of the year of grace, that being the pe iod whea the
right of the mortgagee has become mature: the mere
fact that he has not enforced that right by a suit
for possession is immaterial. Ali Abbas v. Thakur
Prasad, I. L. B. 14 All. 406, followed. Wher3
the property sold was an undivided share in
certain villages : Held, that the " subject of the
saile " did not admit of "physical iMssession,"
within the meaning of Art. 10 of Sch. II to the
Indian Limitation Act. The expression used by
Stuart, C.J., in Jageshar Singh v. Jawahir Singh,
I. L. B. 1 All. 311, in regard to the words
" actual possession," is applicable with still more
certainty to the words " physical possession "
by which is meant a " personal and immediate"
possession. In the present case such possession
could not have been taken by the mortgagee with-
out enforcing partition : Art. 10, therefore, did not
apply. Nor was Art. 144 applicable. Claims to pre-
imption are specially considered in Art. 10, and,
although the particular claim in the present case
did not (for the reasons above stated) fall within
it, that did not affect the construction of Art. 144
as illustrated by Art. 10. A claim to eaforce a
right of pre-emption is, as the latter Ariicle shows,
a claim impeaching another's right, and its primary
object is to set aside the competing right. The
circumstance that the plaint in the present suit
inverted the proper order and, instead of first
asking for the setting aside and then askiag posses-

sion as the consequence had asked for
" by setting aside," Could not alter the nature oi
the action. Batul Begam v. Mansur Ali Khan
(1901). . . . I. L. R. 24 AIL r-

■ s.c. L. R. 28 I. A. 246
,\5 C. W. N. 88f

-^'Arts. 10 and 20 — Limitation — iSi.

for pre-emption — "Physical, possession" — Right o
pre-emption not a purely personal right. The tern
" physical possession," as used in Art. 10 of tl <
second schedule to the "flndian Limitation Ac.
1877, cannot apply to property which is in th
possession of tenants. To a suit for pre-emp
tion of such property. Art. 120 applies. Betv
Begam v. Mansr Ali Khan, I.'L. B. 24 All. Vi
followed. Held, also, that the right of pre-emptic
beiig a rl,'ht incilent to or arisitg out of th
ownership of land, the successor v\ title of a perso
i:i whose favour such ri^ht has arisen is not debarre
from suiag to enforce it by the fact only that h
predecessor has not done"^so. Muhammad Yusi
Ali Khan v. Dal Kuari, I. L. B. 20 All 148, fo
lowed. Kunsilla Kunwar v. Gopal Prasa
(1906) . . . . I. L. R. 28 All 42

Art. 11—

See ante, s. 7, and Sch. II, Arts. 11, 13

<See Civil Procedure Code, 1882, s. 33.'

I. L. R. 34 Calc. 4f

See Sale in Execution of Decree-
Mortgaged Property.

I. L. R. 29 Calc. 2

See fDst, Art. 13.

1. and Art. 14^Q— Order rejei

ing claim under s. 246, Civil Procedure Code, 18
—Ss. 280, 281, 282 of Civil Procedure Code, IS
— Suit for possession. Where, in consequence of i
adverse order passed under the provisions of -\
VIII of 1859, s. 246, a suit is (since the Limitati.
Act, 1877, came into force) instituted to establi
the plaintifi's right to certain property, and i
possession, such suit is not governed by the pro-
sions of art. 11, sch. II of^Act XV of 1877, but
the general limitation of twelve years. Koyl<-
Chunder Paid Chowdhry v. Preonath Boy Chd-
dhry, I. L. R. 4 Calc. 610 : 3 C. L. R. 2\-
Matonginy Dossee v. Chowdhry Jnnnmnjoy Mulli]7
25 W. B. 513 ; Joyram Loot v. Paniram Dh»r
S C. L. B. 54 ; and Baj Chunder Chatterjee I
Shama Charan Garai, 10 C. L. R. 435, citj.
Gopal Chunder Mitter v. Mohesh Chuni|'
BoRAL I. L. R. 9 Calc. 230 : 11 C. L B. ^

BissEssuR Bhugut v. Murlt Sahu

I. L. R. 9 Calc. 163 : U C L. B. 4p

2. ■ Civil] Proceif

Code, 1859, s. 246—Belease of property from ait(:_
merit on application of defendant. The plaict

( 6981 )

DIGEST OF CASES.

( 6982 )

.IMITATION" ACT (XV OF 1811)— contd.
Schedule 11— contd.

Art. 11— contd.

jplied for the attachment of a property, and on the
;>jection of the defendant the property was re-
ased from attachment. Held, that the plaintifE
as bound, under s. 246, Act VIII of 1859, to sue
the Civil Court to establish his rijiht within a year
om the order of release. JuGoo Lal Upadhya v.
KBALOONISSA ... 7 "W. B. 456

3. ■ Civil Procedvre

ode, 1S59, s. 246 — Date from which period of limit-
on runs. The effect of the last sentence of s. 246,
ct VIII of 1859, is to exclude a party to an investi-
ttion under that section from any other remedy
lan that expressly provided for him by that
ction, viz., a regular suit to be brought within one
;ar from the date of the order made against him,
id such party cannot wait till the sale of the
itached property hai taken place and been con-
med, and then bring his suit within one year
om the last date. Settiappa?: v. Sakat Sinoh
3 Mad. 220

4. . Civil Procedure

de, 1859, s. 246— Money-debts. Act VIII of 1859,
246, applies only to immoveable property or to
ocific moveable property not to debt due. When
lebt due to a judgment-debtor is attached in the
nds of the person who owes it. he may pay it
:o Court voluntarily under s. 241, or under compul-
n under s. 242 or be sued for it under s. 243. A
-son thus sued would not be barred because of
■ lapse of a year from setting up any ground
defence \\hich he may have against the claim.

MBUTTY KOOER. V. KaMESSUK PeRSHAD

22 W. E. 36

*• ~ ; Goods illegally

'■ed in execution of decree — Suit hy owner. A

son suing for goods which have been illegally sold

I Jsecution of a decree, or their value, must, under

■ 11, sch. II, Act XV of 1877, bring liis suit

\ bin one year from the time when the adverse

er in the execution-proceedincs was made.

BOO Narain Singh v. Muddex Ally i

I. li. R. 7 Gale. 608 : 9 C. L. R. 8

ft' ~~ ■ Civil Procedure

i^e, 1859, s. 246— Suit for possession Ly virtue
0. iheritance of portion of attached property. It was
h that the mere fact that the plaintiff sued to
r« ver possession, by virtue of inheritance, of one-
"th only of certain immoveable property, to
^■li he had laid claim, when attached in execu-
1 of decree, on the ground that it belonged to
^t, common ancestor of himself and the judgment-
al or. and there had been a partition of the °ances-
tt i-state, and the property attached had fallen by
'n)arti:iontoluslot,»and was in his exclusive
P^ 'ssion, did not relieve him from the necessity of
0 |;ing a suit uithin one year from the date of the
„ ';•• P"f''^fl by the Court executing the decree,
o^ir s. 246, Act VIII of 1859, to the c'ffect that the
^ lion had not been established, nor had he

LIMITATION ACT (XV OF 1877)— <;on?i.
Schedule II — contd.

Art. 11— contd.

proved that he held exclusive possession of the
property attached. Tilok Chand v. Sada Ram

7 N". W. 113

'• — ; Suit to avoid sale

in execution of decree of Small Cause Court passed
without jurisdiction. A obtained a money-decree
upon a bond in a Small Cause Court against B, by
which it was declared that certain landed property
hypothecated by the bond was to be primarily
liable for the debt. The decree was transferred
to the Court of the Sudder Ameen of the same dis-
trict, the property was put up for sale, and it was
purchased by C. Prior to sale, B alienated the
property to D, who^'after sale preferred his claim
to it under s. 246 of Act VIII of 1859, which was
disallowed. More than a year after this D brought
this suit against C to recover possession. In
special appeal it was Md that the decree of the
Small Cause Court being on the face of it without
jurisdiction, the suit was not barred, and the case
was remanded, to be tried on the merits. Lala
Gandar L.iL V. Habibannissa

7 B. L. B. 235 : 15 W. B. 311

8. Civil Procedure

Code, 1859, s. 246. The period of limitation con-
tained in s. 246, Act VIII of 1859, is appUcable only
to a case in which the procedure prescribed by that
section has been adopted. Venkataxaru v.

Akkamma 3 Mad. 139

9. Claim t) attached

property. Property attached was, on the claim of a
third party, released by the Court without proceed-
ing under the provisions of s. 246, Act VIII of 1859.
The attaching creditor sued more than a year after-
wards for a declaration that the property belonged
to the judgment-debtcr. Held, that the suit was
not baned. Jaggabaxdhtj Bosk v. S\c»vi Bibi
8 B. L. B. Ap. 39 : 16 W. B. 22

10. Order passed in

miscellaneous department. Where an crde.' is passed
in the miscellaneous department without enquiry in
conformity with the provisions of s. 246, Act VIII of
1859, it is not to be regarded as an order within
the terms of that section, and a suit to set aside such
order would not necessarily be barred if not insti-
tuted within a year. Bhola Dutt v. Ahmed

3 Agra 397

11. Claim to attached

property — Separate suit — Civil Procedure Code,
1882, ss. 281, 283. The order contemplated by s.
281 of the Code of Civil Procedure is an order made
after investigation'into the facts of the case, and it
is only when the order is made after such investiga-
tion that the limitation of one year is applicable
to a subsequent suit under s. 283 of the Civil Pro-
cedure Code. Chandra Bhusax Gaxgopadhya
V. Ram Kanth Baxerji . I. L. B. 12 Calc. 108

12.

Limitation-

Applicability of s. 246. Limitation under s. 246,

10 N 2

DIGEST OF CASES

( 69*4

LIMITATIOIi' ACT (XV OF 1S77>— :ofk'i.

Schedule II— c-m^J.
- Art 11— eonif.

LIMIT ATIOK" ACT (XV OF 1877)-^on-'f ,

Schedule II — conid.
Art U— c>nii.

Act Vm of 1S59. is not applicable to an adjudica-
tion up-on a petition disallowed on the ground that
the secii^ndidnot apply at all tc the petitioner "s
ca^e. ard that the case was net a fit ore for
adjndc-ation nrder that jeeticn. Eadea ZSath
BAyEBJEE !-. Joroo :?^ATH Sl>OH . 7 W. B. 441

la Claim tj ati'ichei

frof-ertif — ^i-'«f for flosses-! ion. A claim to prcperty
about to be sold in execution of a decree was made
under s. 246 oi Act Vm ot 1S59. but the Court de- '.
chned to entertain it. and passed an order under s.
247, disaDowing the investigation. Held, that the ,
claimant in bringing a regular suit to prosecute his
claim was not bound to instirute his suit within one
year from the date of the order disaliowing the
inTcsticraticn. AIaho^ced Afzitl r. Kavhya Lai.
2 W. E. 263

14. Civil Procedure \

Cede. l^o9. s. 246 — Suit after order releasing pro- I
perty nom atieschment to eMallish right to bring ;
froperty to sale, X caused c-ertain iat)p«ty to be 1
attached as the property of his judgment -debtor. ',
M jaeferred a claim to the property and objected |
to its sale. The Munsif. without an investigation ;
in conformity with the provisions of s. 246 of Act ^
\ III of 1559. released the property from attach- '
ment, and directed A" to bring a regular suit. A'
sued to establish his right to bring the property to
sale, aHeaing that his cause of action arose on the
day the order was passed releasing it from attach-
ment. Held, that the suit was not barred by limit-
ation by reason of not having been insrltuted within ■
one vear from the date of the order. Ka3CRax r.
XxrrRA^r 6 N. W. 185

15.

Limitijtion Act

{IX of l^^l , Art. lo. A claimant against whom an
order has been made under s. 246 of the Civil Pro- ,
cedtire Code (Act VIH of 1S59) must sue to estab-
lish his right within one year from the date of snc-h '
order. Rit when the Civil Court disallows an
investigation tmder s. 247 of the Code, the claimant
may bring his suit within the crdinarr perlcd of
limitation applic-able to his suit, ^'evkapa r.
Cees-basapa " . . . I. L. E. 4 Bom. 21
i€€ Jztt: i: HossAiy

I. L. E. 4 Bom, 23 note

16. Suitbi/ purchaser

at sale after rejection of claim in execution-proceed-
ings. In execution of a decree upon a mortgage
executed by A, the decree-holders purchased' the
tenure which was the subject of the mortgage. On
an applic-ation for an order to be put into possession
they were opposed by B, A's son, who aHesed
that his father had relinquished the tenure, and that
C. who had subsequently become the purchaser
tinder a sale of arrears of^Govemment revenue, had
avoided the tenure with* A > consent. The Court
to which the application was made thereupon re-
fused to enter into evidence or make any enquiry.

leaving the decree-holders to establish their right
by a regular suit. The order was made tmder Act
Vni cf 1S59. A suit having been brought :
Held, that the one year's limitation pn^Arided by Art.
11 of Act XV of ISTT did not apply. Rash Bz-
HAKY Btsack r. BrDDrrs Chttsder Singh

12 C. L. R 550

17. Reiusal to ila>,

sale in execution of deem. Certain lands having bet ;
attached in execution of a decree obtained by .a
gainst B, C intervened under s. 246. Act \uLl ol
1S59. claiming their release on the ground that be-
fore the attachment they had been conveyed to hiir
by B under a deed cf sale ; and he prayed that th«
execution sale might be stayed to enable him to pu
in the deed after having it registered. The Court
however, refused to stay the sale, and the land
were sold in execution. More than a year free
the date of the Court "s refusal to stay the sale. (
sued to establish his right to the lands. Hela
that the suit was not barred by limitation nndc
s. 246, Act Tin of lSo9. since'the refusal of tb
Court to postpone the sale was not an order nndt
that section, but was a mere refusal to order
postponement under s. 247. MrKHry Lall Paj

DAY r. KOOyDTTN- LaJIL

15 B. T. E. 228 : 24 W. R 7
LE. 2 1. A21

18. Civil Proudu.

Code. lSo9, s. 246— Claim rejected ctkencise thim «
the merits. S. 246, Act Vm of 1S59, made no di
tinction in favour of cases not decided on t
merits, but made it imperative on the party who
ckim to attached property had been rejected, and
any circumstanc-es, to sue within one year. Kho'
BuKSH r. PrE3iAXX3'X) Dm . . 5 W. E. 2

19.

claim on urdrusticorthy evidence. A claim und
I VIII of 1859, s. 246, rejected because the evi<^..

produced was unworthy of credit, was on the sa?

ic>otin2 as if the claimant had failed to prodf

any evidenc-e, and the order rejecting it was g*
. on the merits and not on default. A suit the-

fore for the property must be brought within «?

vear after the rejection of the claim. GooS

"rx ss Roy r. Sosa Moxee Dossia 20 W, E. S&

SBEi3nr5rro HaJsah r. TAJOODPZEy _

21 W. B. 4?

ISSTTE ChTXDER It

. 2SW.B.I>

; KA3nxEE Dasia
' Chowdhby

' TRIPOOKA SoOV.ni-EEE DeEIA = . IJJT-T005>nA

' Khatoox 24W.R^

20. Order r?

clnim to attached properti/ — Dismissal cf clr
failure to produce evidence. Certain pr \- "■'
been attached in execution of a decree.
intervened claiming the property and ^ '

i to adduce evidence, which, however, he faJec '

( 6985

DIGEST OF CASES.

( 6986 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule 11— contd.

Art. 11 — conid.

and the case was struck oS. Held, that the order
striking off the case must be taken as an order dis-
alloT^ing the claim, and that the plaintiff was bound
to bring his suit to estabhsh his claim within one
vear from the date of the order. Sadut Ali v.
Ea.m Dhoxe MissER . . . 12 C. L. R. 43

21.

AMien a Court

iisaUows claim to attached property by reason of
rhe claimant not having given anj- evidence in

appoit of the claim, there cannot be said to
bave been any investigation under s. 378 of
:he Civil Procedure Code, and the order cannot
be said to be one under s. 281 : Art. 11 of the Limi-
lation Act does not therefore apply to such a
;ase. Gooroo Doss Roy v. Sana Monee Dassia, 20
W. R. 345; Srcemunio Hajra v. Tajooddeen, 21
W. R. 409 ; Tripoora Soonduree Debia v. Ijiutoon-
iimi Kkatoon, 24 IF. R. 411 ; and Sadat Ali v.
"iam Dhont Jlisser, 12 C. L. R. 43, dissented from.
\aUu Mai v. Brmai, I. L. R. 3 All. 504 ; and Chun-
ra Bhusan v. Kamkanth, I. L. R. 12 Calc. 108,
jllowed. Sardhari Ixd v. Ambika Prasad, I. L.
I lo Calc. 521 : L. R. 15 I. A. 123, explained.
i-ilXAK SrS-GH V. TOEIL ilAHTOX 1 C. W. W. 24

22. Party refused

dmittance to proceedings. The law of limitation,
inder s. 246, Act VIII of 1859, could not apply to a
erson whom the Court had refused to make a party
) the proceedings under that section because he
,ime in too late to be made such a party. RoG-

OOXATH Doss MOHAPATTCR V. ErDOXA^TH DoSS
^AHARATHA . . 14 W. R. 264

23. Judgment-debtor

i a party to proceedings. \Mien the judgment-
;?btor was not made a party to a proceeding under

• 246 of Act VIII of 1859, he was not bound'' by the
w of limitation to sue to establish his right to

,ie property within one year from an order under
. at section releasing it from attachment. Imeichi
I OVA V. Kakkcxxat Upakki
I I. L.. E. 1 Mad. 391

i^ 3 ■ Civil Procedure

i-rfe, 1859, s. 246 — Party again-st whom order i.s
\7iten''— Right of mit — Limitation. The plaintiff I
ought a suit to establish his right to certain pro- '
rty as against the claim which the defendant had '
?cessfully made under s. 246 of the Civil Proce-
;re Code in execution of a decree obtained against
|i plaintiff. The order of the Court directed the
ease of the property from attachment. The
^sent suit was brought more than one j-ear from
i' date of the order. Held, per Scotland, C.J.,
■nxESTox and Collett, JJ. (Ixxes, J., doubt-
•I ), that the plaintiff was a party against whom the
^.er \ras " given " within the meaning of the
f tion, and that the suit was barred bv the section.
- TTiETOM Perexgaeypbom alias ' Panisheery

• MODHEX N.\.MBrDRY V. TaYAXBAERY P.VRAMESH-

^ REX Nambudry ... 4 Mad. 472

LIMITATION ACT (XV OF 1877)^:onfci.
Schedule II — contd.

Art. H— contd.

25. __ _ Civil Procedure

Code, 1859, .s. 246. Certain lands were attached
under a decree against the ancestor of the plaintiffs ;
but on the intervention of the defendant under s.
246, Act VIII of 18.59, they were released to him.
Held, that that was not an order made between
plaintiffs and defendant, such as to make it neces-
sary for the former to sue for declaration of title
within one year. Nitta Kolita v. Bishttxram
KoLiTA . . . . 2 B. L. E. Ap. 49

26. Civil Procedure

Code, 1S59, s. 246. On attachment of certain pro-
perty, plaintiff and defendants preferred their
resj^eetive claims thereto. The plaintiff's claim
was disallowed, but the defendant's claim was
allowed. The plaintiff, after the lapse of a
year from the date of the order disallowing his
claim, sued to recover possession of the said pro-
perty. The defence was that the suit was barred
by lapse of time under s. 246, Act VIII of 1859.
Held, that s. 246 did not apply to such a suit.
DuRGAEAii Roy v. Xaesixg Deb'

2 B. L. R. A. C. 254

S.C. DoORGARAil ROY V. NuRO SiXiH DeB

11 W. R. 134

27.

-Suit to estihli-sh

right — Attachment in execution of decree. B caused
certain immoveable property to be attached in the
execution of a decree. 21 objected to the attach-
ment, claiming to be in possession of such property
on his own account. The investigation of such
claim which followed under s. 246 of Act VIII of
1859 took place as between B, the decree-holder
and M, X, the judgment-debtor, not being a party
to it except in name. Ji's objection was allowed
in May 1871, but no suit was brought either by B
or A' to estabilsh X's right to such property.
H subsequently obtained a decree against N in
1877, and in execution thereof caused such pro-
perty to be attached. J/ objected to the attach-
ment and his objection was allowed in April 1S78.
In March 1879 H sued M for a declaration that a
moiety of such property belonged to A", and to have
the order removing the attachment cancelled.
Held, that N's right to a moiety of such property
was not extinguished because he had not sued to
establish it within one year of the making of the
order of May 1871 in the execution-proceedings of
B, and H was competent to sue to establish such
right. Maxxu Lal v. Harsukh Das

I. L. R. 3 All. 233

Claim by inter-

tenors — Share of attached property. When inter-
venors claim a share of attached property the Court
should define the respective shares of the debtor
and the intervenors, and sell the debtor's deiaite
share only. If the Coiurt omits to do so, and sella
the undefined rights and interests, there is no deci-

( 6987 )

DIGEST OF CASES.

LIMITATION ACT (XV OP 18^^)—contd.
Schedule II — contd.

Art. 11 — Contd.

sion under s. 246, Act VIII of 1859, of which the
purchaser, by lying in wait without possession for
one year, can take advantage. Monohtjr Khan ?'.
TROYLrcKHo Nath Ghose . . 4 W. E. 35

29. — Civil Procedure

Code (Act XIV of 1882), ss. 280, 283— Mortgagee,
suit by, against mortgagor and third party who has
intervened and obtained an order under s. 288, Civil
Procedure Code — Execution of decree. Art. 11,
Sch. II of the Limitation Act (XV of 1877), re-
fers only to suits contemplated by s. 283 of the
Civil Procedure Code. Where, therefore, a mort-
gagee having obtained a decree on his mortgage, and
caused the property to be attached, was successfully
opposed by a third party who intervened in his
attempt to have the property sold, and an order was
passed under s. 280 of the Code of Civil Prccedure,
releasing the property from attachment, and where
the mortgagee, more than a year after the date of
that order, instituted a suit against such third party
and his mortgagor, to have his hen over the mort-
gaged property declared, and to bring it to sale in
execution of his decree, alleging that the title set up
by such third party was a fraudulent one, col-
lusively created between the mortgagor and such
third party with a view to deprive him of his r gbts,
and asking to have the order passed under
s. 280 set aside : — Held, that the suit was not barred
by limitation under the provisions of Art. 11, Sch.
II of the Limitation Act. The right that was in
litigation in the proceeding under s. 280 was the
right to attach and sell the property in dispute
in execution of the decree which the plaintiff had
obtained against the mortgagor, and so far as that
right was concerned the present suit was barred ;
but so far as the other relief claimed in the present
suit went, that article did not apply, and the suit
was not barred. Bukshi Ram Pergash Lal v.
Sheo Pergash Tewari . L L. R. 12 Cale. 453

30.

Suit to establish

right as auction-purchaser to immoveable -property
sold in execution of decree — Adjudication of pro-
prietary right — Res judicata — Possession. In a suit
brought by plaintiff to estabhsh his right as auction-
purchaser to certain immoveable property sold in
execution of a decree under the provisions of s. 246
of Act VIII of 1859, disallowing the claim of the
objector — represented by the defendant — and
adjudging the property attached to be that of the
judgment -debtor, represented by the plaintiff —
the said order not having been set aside in a regular
suit by the defendant : — Held (by a majority of the
Full Court), that an order passed under the provi-
sions of s. 246 of Act VIII of 1859, unless overruled
in a regular suit brought within the statutory period,
is bindirg in all persons who aie parties to it, and
is conclusive. Pearson, J., per contra. — S. 246
of Act VIII of 1859 provides for an adjudication of
proprietary right on the basis of possession, but the
matter is not " res judicata " as to matters, in dis-

LIMITATION ACT (XV OF 18n)-conld,
Schedule II — contd.

Art. 11— contd.

pute between decree-holder and claimant, unless the
party against whom an order is passed under s.
246 of Act VIII of 1859 fails to bring a regular
suit to establish his right. In the case mentioned
in the order of reference as apparently conflicting
with the above view there had been no adjudica-
tion on the basis of possession by the Court passing
an order under s. 246 of Act VIII of 1859, and the
defendant in possession was therefore at liberty tc
assert his proprietary title against the lien set u
by plaintiff under the said order, passed withoui
jurisdiction on the miscellaneous side. Badri
Prasad v. Muhammad Yusuf I. L. R. 1 All. 38S

W Distinguished in Joy Prokash Singh v. Abhoy
KtjmaH Chtjnd . . . . 1 C. W. N. 701

31.

Suit to establis)

right. B caused a certain dwelling-house to bi
attached in execution of a decree held by him agains
M as the property of M. J preferred a claim to th'
property which was disallowed by an order mad'
under s. 246 of Act VIII of 1859. Two days afte
the date of such order M satisfied B^s decree. Mon
than a year after the date of such order J sued i
and M to establish her proprietary right to th
dwelling-house, alleging that M had fraudulent!
mortgaged it to B. Held, following the Full Bene,
ruling, in Badri Prasad v. Muhammad Yusuf, I. 1
E. 1 All. 382, that J, having failed to prove he
right within the time allowed by law, was preclude
from asserting it by the order made under s. 24
of Act VIII of 1859, and that, whether or not th
decree was satisfied after the order was made, th
effect of the order was the same. Jeoni v. BHAf
WAN Sahai . . . I. L. E. 1 All. 54

32. Suit for declon

lion of right and confirmation of possession.. Tl
limitation of one year in s. 246, Act VIII of 1851
did not apply to a suit for declaration of right au
confirmation of possession. Wtjzeer jAiiADAR
NooR Ali 12 W. K. 3

Claim. In execution of a decree against A, certa
property was sold in 1868. During the proceedia'
which led to that decree, B, the wife of A, had pil
ferred a claim to the property under s. 246, on tl
ground that it was her stridhan, and that she h&
always been in possession of it. Her claim w|
rejected in 1866, but she remained in possessioj
Held, that a suit by B to establish her title to t|
land was not barred by the limitation provided Ij
s. 246, though brought more than a year after hj
claim was refused, since she was at the time in p<j
session and had remained afterwards in postessit
of the property. Lakhi Prya Debi v. KnYBtJL!
Kazi . . , . 7 B. L. B. 238 no'
s.c. LrCKHEE Prea Debia v. Khyroollj
Kazee . . . . 14 W. B. 3<

DIGEST OF CASES.

( 6990 )

IMITATION ACT (XV OF 1877)-con<d.
Schedule II — contd.

Art. 11— conid.

34.

Cla imant in

ession where claim is rejected. If a person making
I claim under Act VIII of 1859, s. 246, is in
ictual possession, his claim is only a declaration
hat his possession is without title. A suit to estab-
ish his rights, i.e., for confirmation of his possession,
nust be brought within one year. Brojo Kishore
s'ag v. Ram Uyal Bhudra . . 21 W. B. 133

35.

S7iit for declara-

that property ostensibly held by one defendant
belcngtd to another. A suit for a declaration that
certain property which has been ostensibly held
by one of the defendants was in fact the property of
inother of the defendants who was the judgment-
lebtor of the plaintitl,-is governed by s. 246. Act
i'lll of 1859, and barred by the hmitation of one
rear. Abdoolah v. Shokoor Ali 14 "W. R. 192

36. Order rejecting

:laim to attach property. Certain property having
been attached in execution of a decree, the
plaintiff preferred a claim to it as being his exclusive
property ; but the Court in which the claim was
nade was of opinion that the plaintiff and the
;udgment -debtor were in joint possession, and it
uade an order directing that on the plaintiff's
■laim being notified the sale should proceed. More
han a year afterwards the plaintiff filed a suit to
■stabhsh his title and alleged exclusive possession.
ield, distinguishing the cases of Brojo Kishore Nag
-. Ram Dyal Bhudra, 21 W. R. 133 ; Kaminee Debia
-. Issur Chunder Roy Choicdhury, 22 W. B. 39 ;

nd Jodoonath Chowdhvry v. Radhamonee Dossee,

W. R. 256, that the order not having been ad-
erse to the plaintiff, the suit was not barred by
eason of its not having been brought within a year
rem the date of the order. Rash Behari Dass v.
lopi Nath Barapanda Mohapattj

11 C. li. B. 352

37. Failure to estnb-

sh claim — Suit for establishing title. A party failing
) establish his claim to attached property under s.
46, Act VIU of 1859, on the pouit of possession,

not debarred from afterwards bringing a suit to
itabhsh title within the period allowed by law for
ringing such suit. Bishexperkash Narain
ixGH V. Babooa Misser . . 8 W. B. 73

Right of one decree-

\Mer against another — Suit for declaration of prior
I en. Two several judgment-creditors attached
lirtain property, which was released upon the claim
|: a third party, under s. 246 of Act VllI of 1859.
|ne of them sued the successful claimant, and ob-
.ined a decree declaring the proiierty in dispute
' belong to the judgment-debtor, and thereupon
used the property to be sold, and became the
jUchaser thereof. Thereupon an assignee of the
her judgment-creditor sued him, alleging an earlier
'n, and praying a sale in satisfaction thereof,
le defence set up was that, as the plaintiff did not

LIMITATION ACT (XV OF 1877)— cowfd.

Schedule 11— contd.
Art. 11 — contd.

come into Court to set aside the order under s. 246
with a year from the date thereof, he was barred
from bringing the present suit : — Held, that the
omission to bring a separate suit for that purpose
did not bar him from obtaining a declaration of his
pricr lien. Chintamaxi Sex v. Iswar Chaxdra

3 B. L. B. Ap. 122
s.c. Chixtamoxee Seix v. IsscR Chuxder

Chuxder
39.

. 12 W. B. 221

— Possession —

Civil Procedure Code, 18.59, s. 246. In a suit for
redemption of an itti by an alleged purchaser of
the same, and for recovery of lai.d on which he
had purchased a kanom, the defence was that the
purchase was made by the father of the first defend-

«nt, and that the plaintiff was constructively a
lere trustee. The Munsif decreed for the plaintiff,
and the Principal Sudder Ameen reversed his decree
because the suit was not brought within a j-ear
of a release of the property frcm attachment
under a claim of the defendants, which attachment
was made in execution of two decrees for money
against the present plaintiff. It appeared that in
the proceedings had for releasing the property from
attachment, no notice was issued to the judgment-
debtor (present plaintiff) -.— Held, that the decision
of the Principal Sudder Ameen was wrong. In the
present case, the claimants in possession were not
so according to any of the modes of derivation which
s. 246 enumerates as authorizing the continuance of
the possession and the dismissal of the claim. The
possession was in the claimants, and there was
nothing in the rights of the judgment-debtor which
could make such possession his possession. This
being so, even assuming that he was a party to the
order made, such order could not be said to be against
him, because his claim was one which could not
have been determined by any order made under
s. 246. The order so made was perfectly consistent
with his present condition. Netielom Perengary-
prom v. Tayanbarry Parame^hwaren Nantbudry,
4 Jlad. 472, distinguished. Cheriyabakel alias
Arakel Kunhi Kuttiyali v. Vayaka Pa RAM bath
Imbichi Ajijiah ... 6 Mad. 416

40. - Civil Procedure

Code, 1859, s. 246. Certain property having been
mortgaged hy B D to L, the mortgagee obtained
decree for its sale, had it sold in execution, and
purchased it himself, subject to any right which
certain parties (£ and G), who had objected under
Act VIll of 1859, s. 246, might be able toestabhsh.
After this L sold the property to the plaintiff,
who, not being able to get possession, brought a
suit against the defendants in whose lands some
or all of the property seemed to be and who set
up that they had purchased it from B G and B D:
Held, that the suit was not barred because it had
not been instituted within twelve months of the
date when the objections of B and G were allowed.
Kamessub Pehshad v. Kadir Khan

20 W. B. 393

DIGEST OF CASES.

( 6992 )

LIMITATION ACT (XV OP 1811}— contd. LIMITATION ACT {XV OF 1811)- contd.

Schedule II — contd.

Art. 11— contd.

41.

Suit to recover

properti/ sold in execution — Civil Procedure Code
(Act VIII of 1869, s. 246, and Act X of 1877, ss. 280,
281, and 282). Certain property, which the plaintift
alleged to belong to her, was sold in execution of a
decree obtained by the purchaser of the property at
the auction-sale, against a third party. The
plaintiff put in a claim to the property under s. 2^6
of Act VIII of 1859, which claim was rejected on the
6th of September 1873. The plaintiff, on the 10th
of January 1 878, brought a suit to reco ver possession
of the property sold: — Held, that the suit was not
barred under Art. 11 of Sch. II of Act XV of 1877,
which refers to the section in Act X of 1877, cor-
responding to s. 246 of Act VIII of 1859. Luchmi
Narain Singh v. Assrup Koer

I. L. R. 9 Calc. 43

42.

-Suit after order

rejecting claim to property attached in execution of
decree. In execution of a decree against 31 the
plaintiff attached and advertised for sale certain
property in mouzah A. At that time there were
pending proceedings in execution of two other de-
crees obtained against M by the first and second
defendants respectively. These two decrees were
obtained on a bond executed by M, by which an
eight annas share of mouzah A was hj^pothe-
cated as collaterial security ; and in execution of
those decrees the defendants brought to sale, and
themselves purchased, not an eight annas share
only but the whole of mouzah A, and were allowed
by the Court to set-off the purchase-money against
the amounts due to them under their decrees. At
the same time the plaintiff's execution case was
struckoff on 30th June 1880. Ina suit brought
by the plaintiff under s. 295 of the Civil Procedure
Code for his share of the sale-proceeds of mouzah
A, in which the plaintiff alleged fraud on the part
of the defendants in selling the whole mouzah
under their decrees, of which he only became aware
in July 1882, from which time he dated his cause of
action the defendants demed the fraud and con-
tended that the suit should have been brought with-
in a year of the order of the 30th June 1880 : Held,
that the existence of the order of the 30th June 1 880
was not inconsistent with the plaintiff's right, and
the suit was therefore not barred as not having
been brought within one year of that order. Tap-
o>nDi Hordanund Bharati v. Mathura Lall
Bhagat . . . I. L. R. 12 Calc. 499

43.

^Suit for posses-

sion after rejection of claim. In a suit for possession
after rejection of a claim under s. 246, Act VIII of
1859, there was nothing in that section to prevent
a defendant from pleading that whatever title
plaintiff might have had at some previous time
it was extinguished by his having had no posses
sion for twelve years preceding the suit. Ram
Sartjn Singh v. Mahomed Ameer . 13 "W. R. 78

Schedule II— contd.

Art. 11 — contd.

44.

Suit to set aside

order removing attickment — Civil Procedure Code,
1882, s. 283. A suit brought under s. 283 of the
Civil Procedure Code (Act XIV of 1882) is a suit tc
set aside an order within the meaning of Art. Ho
Sch. II of the Limitation Act (XV of 1877). Habi-

SHANKAR JeBHAI V. NaRAN KaRSAN

I. L. R. 18 Bom. 26C

45. Code of Civil Pre-

cedure, ss. 278, 280, 283— Investigation of claim
attached property. A decree-holder, against when
the release of property, attached in execution of hi
decree, has been ordered, after investigation unde'
s. 280 of the Code of Civil Procedure, is hmitec
by Art. 11 of Sch. II of Act XV of 1877 (th.
Indian Limitation Act) to one 3'ear within whicl
to institute a suit to establish that the propert;
is that of his judgment-debtor. Sardhaki Lai
V. Ambika Pershad

I. L. R. 15 Calc. 521 : L. R. 15 I. A. 12.'

46. Civil Procedvr

Code {Act XIV of 1882), ss. 280-283— Judgment

debtor, suit by, to establish title to property, the sub

ject-matter of claim in execution-proceedings. 1

judgment-debtor is not necessarily a party agains

whom an order is made within the meaning 0

that term as used in s. 283 of the Code of Civi

Procedure so as to preclude his instituting a sui

after the lapse of one year from the date of sue!

order, the period of limitation prescribed bj' Art. 11

Sch. II, Act XV of 1877, to estabHsh his title tc

and to recover possession of, the property whic!

has been the subject-matter of a claim in execution

proceedings, and in respect of which an order ha

been made under s. 280 of the Code. G in exe

cut.on of a decree attached certain immoveabl

property belonging to the plaintiff, whereupon .

preferred a claim, and on the 10th March 1881 gc

the attachment removed. On the 20th July 1881, t

sold the property to K. In 1882 G instituted

suit against B to set aside the order of the lOt

March 1881, and to have it declared that the pre

perty was liable to attachment as belonging t

the plaintiff. iC was not made a party to that sui

and it was eventually compromised between

and B, the plaintiff's title being admitted. Others

upon again attached the property, and was in«

by a claim preferred by K, wliich was allowed 0

the 15th August 1883. G then brought anothi

suit against K to obtain relief similar to ths

claimed in his suit against B, but his suit vi\

dismissed on the 17th February 1885. On tl

25th September 1885, the plaintiff instituted

suit against G, B, and K to obtain a declaratic

of his title to, and to recover possession of,tl

property. It was contended that the suit wi

barred bv limitation, being governed by Art. 1

Sch. II of Act XV of 1877, inasmuch as it WJ

brought more than one year after the date of tl

order of the 15th August 1883. Held, that the si^

( 6993 )

DIGEST OF CASES.

( 6994 )

IMITATIOM- ACT (XV OF 1877)— cow^
Schedule U—contd.

Art. U—contd.

as not such a suit as was contemplated by s. 283
f the Code of Civil Procedure, not being one to
jtabUsh any right which was the subject-matter
f the litigation in the execution-proceedings,
nd'that consequently the provision of Art. 11
d''not apply to it, and it was not barred by
mitation. Kedar Nath Chatterji v. Rakhal
AS Chatterji . . I. L. R. 15 Calc. 674

47.

Claim to attached

perty — Order passed against clainuint — Neglect of
dimant to sue within a year after date of order
-Civil Procedure Code {Act XIV of 1882), ss.
7S, 279, 280, and 283. V mortgaged certain
.nd to the defendant's father for a sum of R64
Ivauced by the latter at the date of the mort-
age. The mortgage-deed stated that V OM'ed the
lortgagee another debt of RlOO, which was
ue on a separate bond, and it contained a clause
1 the following terms : — " The princiiml sum of
uns (coins) due on that document, as also this
ocument, I will pay at the same time and take
ack the land along with this document as well as
liat document. TiU then you are to continue to

njoy the land " The plaintiff,

aving obtained a decree against the mortgagor,
ttached the land in execution. The defendant
■ion of the original mortgagee) thereupon claimed
hat he held a mortgage upon it to the extent
f R164. On the 9th March 1881, the Court
xecuting the plaintiff's decree made an order allow-
ng the defendant's claim only to the extent of R64,
nd directing that the land should be sold, subject

0 the defendant's lien for that sum. The plaintiff
lought the land at the execution-sale, and offered
lie defendant R64 in redemption of his mortgage,
ihich the defendant refused. The plaintiffs then
irought the present suit to recover possession.
hid, that the charge on the land did not include
he old debt of RlOO. There were no words in the
aortgage-dccd expressly making that debt a charge
>n the property. The provisions in tlie deed only
uade the equity of redemption conditional on the
layment of both the debts. Qucere : Whether,
inder the circumstances of the case, the purchaser
•t the execution-sale would be bound by such a con-
lition. Held, also, that the object of the defend-
int's apphcation in March 1881 was \-irtually
hat the Court should allow his mortgage to the
'-stent of R164, and the Court having allowed
lis claim only to the amount of R64 by its order,
iro tanto, rejected his application. It was, therefore,
in order passed against him, and having neglected
^0 establish his light by suit within a year from the
late of that order, he was now estopped from insist-
"'-; on the condition. Yashvaxt Shexvi v.
k iTHOBA Sheti . . I. L. R. 12 Bom. 231

^,^®- Civil Procedure

1 ode, 1882, ss. 278 and 281—Disallou-ance of claim
'0 property under attachment— Suit far property at-
'■ached. In ] 879, the plaintiff purchased at a Court-

LIMITATION" ACT (XV OF ISll )—contd.

Schedule II — conld.
Art. 11— co»/d.

sale the first defendant's interest in certain land, but .
did not obtain jTOssession. In 1888, the same pro-
perty was purchased by the fourth defendant in
execution of another decree against the same judg-
ment-debtor. It appeared that the plaintiff raised
an objection by petition in the course of the pro-
ceedings in execution of the last-mentioned decree,
but his petition was dismissed on his vakil stating
that he was not in po.ssession. The plaintiff now
sued in 1891 for the property purchased by him.
Held, that no order had been passed under the
Civil Procedure Code, s. 281, and that the suit
was not barred under Limitation Act, Sch. 11, Art.
11. MuNiSAMi Reddi v. Arunach.vla Reddi

I. L. R. 18 Mad. 265

49.

Attachment of

property of judgment-debtor — Application by third
party to have attachment removed— Order refusing to
remove attachment — Suit by claimant to establish
his title to attached property. A obtained a decree
against B and in execution attached certain pro-
perty. The plaintiff objected, and applied to have
the attachment removed. His application was
rejected on the 14th January 1881, but on the 23rd
of March 1881 the judgment-debtor paid the amount
of the decree into Court, and the attachment was
thereupon removed. A subsequently again attach-
ed the same property in execution of another
decree against B. The plaintiff again obiected under
s. 278 of the Code of Civil Procedure (Act XTV of
1882), and on the Oth June 1883 an application
made by him to remove this second attachment
was refused. Within one year from that date he
tiled the present suit to establish his title to the
property attached. The defendant contended that
the suit was barred, not having been filed within
one year from the date (14th January 1881) of the
order made against the plaintiff refusing his ap-
plication to raise the first attachment. Held, that
the suit was not barred by limitation. No doubt
an order had been made against the plaintiff
on the 14th January 1881 ; but as the attachment
in respect of which that order had been made was
finally withdrawn on the 23rd March 1881, although
not on the plaintiff's application, and as he con-
tinued in possession of the property, there was, after
the 23rd March 1881, no right of action remaining to
him in respect of the order of the 14th January 1881,
disallowing his cUiim. The second attachment was
a new and distinct act giving a new cause of action
on which the plaintiff was entitled to a fresh inquiry
anddecision. Ibrahimbhai r. Kabtlabbm

I. L. R 13 Bom. 72

50.

Civil Procedure

Code, 1S59, s. 246— Limitation Acts {IX of 1871),
Sch. II, Art. 15 ; {XV of 1877) Sch. II, Art. 13—
Suit after rejection of claim to attached property.
A petition under s. 246 of the Code of Civil Pro-
cedure of 1859, objecting to the execution of
the decree by the attachment of certain land on

( 6995 )

DIGEST OF CASES.

LIMITATION ACT (XV OP 1877)— cowfi.
Schedule II — contd.

Art. 11 — contd.

the ground that the land was the property of the
petitioner, was heard and dismissed in July 1875.
In July 1877, within twelve years from the dis-
possession of the objector he filed a suit against the
decree-holder, who had purchased at the execution-
sale, for the possession of the land held by him as
purchaser at the execution-sale. Held, that the suit
was not barred by limitation. Narasmma v.
Appalachakltj . . I. li. R. 12 Mad. 294

51.

Civil Procedure

Code {Act XIV of 1882), s. 281— Order disallowing
claim to attached property. The effect of an order
made under s. 281 of the Civil Procedure Code dis-
allowing a claim to attached x^roperty is to give the
auction-purchaser a title as against the claimant
unless the order is set aside by a suit ; and a suit for
that purpose can only be brought within a year from
the date of the order. Sardhari Lai v. Ambika
Pershad, I. L. R. 15 Cede. 521 : L. R. 15 I. A.
123, reiened to. Khub Lal z;. Ram Lochun Koer
I. L. B. 17 Cale. 260

52.

Civil Procedure

Code, 1SS2, s. 283- — Order on claim to pi-operty
jcmnd not to he (dtached. Land having been granted
to several persons jointly, disputes arose among
them with reference to its allotment. The disputes
having been settled by arbitration, one of the
grantees sold his share to the plaintiff. Before the
arbitration, another of the grantees mortgaged seven
acres of the land to A , who did not become a party
to the arbitration. A subsequently obtained a de-
cree on his mortgage and proceeded to execute it by
attachment. The plaintiff intervened in execution,
but, on the 1st March 1884, the Court passed an
order, stating that the plaintiff's land was not
attached, and in fact his possession then remained
undisturbed. A subsequently executed his decree,
and purchased the land brought to sale by the Court.
The plaintiff's possession was disturbed under
colour of this pu: chase, and he new sv.ed in 1^89 to
recover the land sold to him. Held, that the order of
the 1st March 1884, was not an order within the
meaning of the Civil Procedure Code, s. 283, and
accordingly that the suit was not barred by the one
year's rule of hmitation. Pullamma v. Pradosham
I. L. B. 18 Mad. 16

53. Civil Procedure

Code, s. 283 — Order removing attachment — Party to
execution-proceedings. A in execution of a decree
against B attached a house. C intervened and the
property was released from attachment. A then
brought a suit against B and C to estabhsh the title
of B to the house and obtained a decree. As
against B, the suit was ex parte throughout. Jn an
appeal by C a decree was passed by consent of A and
C reversing the decree appealed against. B now
sued C and another, more than a year from the date
of the order removing the attachment, to obtain
a declaration of title to the house. Held, that, since j

LIMITATION ACT (XV OF 1877)— confe
Schedule II — contd.

-Art. 11 — coTitd.

there was nothing to show tliat the order releasir
the attachment was an order against the plaint-
the suit was not barred by limitation. Gpruva
Subbarayudu . . I. L. B. 13 Mad. 36

54.

Civil Procedu:

Code, 1882, s. 282 — Order in attachment proceedin
effect of — Judgment-debtor — Party against who
order in execution-jyroceedings was made. Til
plaintiff obtained a decree. The defendants "j
pealed. At the hearing of the appeal in the Disti
Court a question was raised as to whether tj
defendants were not barred by limitation fro'
denying the genuineness and validity of the lea
and mortgage, they having failed to do so in cert a
execution-proceedings which had taken place in 189
It appeared that in execution of a decree against tl
father and the uncle of the defendants these Ian'
had been attached. The plaintiff on that occasic
had intervened, and set up his mortgage and lea
which he produced. They were then held to I
proved, and the lands were ordered to be sold su
ject to the plaintiff's mortgage. Upon these. fae
the District Judge held that by the attachment
their lands in these execution-proceedings, the d
fendants had been subrogated either to the cause
the decree-holder or to that of the plaintiff who i
tervened, and therefore they were parties " again
whom the order was made." That order becan
conclusive against them within one year from i
date, as they did not bring a suit to establish the
right (Art. 11, Sch. II, Limitation Act, 1877). I
therefore confirmed the decree of the Court of fir
instance. On second appeal to the High Court :h
Held, reversing the lower Court's decree, that tl
defendants were not necessarily to be regarded .
parties against whom the order in the executio
proceedings was made. Whether they were or nc
depended on the facts of the case. The Coii
accordingly remanded the case that the Distri'
Judge might investigate the facts and pass a deer'
accordingly. Ajibal Narasinha Hegde )'. Shir
KOLi TiMAPA Hegde . I. L. B. 17 Bom. 62

55.

Civil Procedu

Code (Act XIV of 1882), s. 283— Order passed
attachment proceedings not binding on judgmer,^
debtor if not a party — Order passed without invesli
gation — Suit to set aside the order. One A w
in possession of certain land as plaintiff's tenant, an
in his lifetime mortgaged it with possession to tl'
first defendant. After .4 '5 death, defendant No.
obtained a money-decree against A 's heirs, and
execution attached the land. Thereupon the plain
iff sought to raise the attachment on the ground th;
A was merely a tenant-at-will whose interest ceast
at his death. Defendant No. 1 contended, on tl
other hand, that ^4 was a permanent tenant, and tin
his interest, as such, had descended to his hei
and was liable to attachment. On the 20th Fe
ruary 1892, the Court ordered the attachmei
to be removed without deciding the question raise

( 6997 )

DIGEST OF CASES.

.IMITATION ACT (XV OF 1871)— contd.
Schedule II — contd.

Art. 11 — contd.

y the parties which it held could not be determined
1 such a proceeding. Defendant No. 1 did not
ring any suit under s. 283 of the Code of Civil
'rocedure (Act XIV of 1882), to set aside the order
nd establish his right to the land. In 1894 the
ilaintiff filed the present suit against the first
iefendant and the heirs of A to recover possession
f the land. The Subordinate Judge passed a de-
ree in his. favour against the first defendant, hold-
'g that the order in the attachment proceedings
tas conclusive against the latter, no suit having
)een filed by him within a year under s. 283 of the
:ivil Procedure Code. He, however, refused to
)ass anv decree against the heirs of A, inasmuch as
hey had not been parties to the attachment
iroceedings, and, moreover, were not in possession
,f the land. On appeal, this decree was confirmed.
I'he first defendant appealed to the High Court.
Hfid (reversing the decree of both the lower Courts),
hat the case must be remanded and tried on
ts merits. By Paesons, J., on the ground that,
dthough the order in the attachment proceedings
lad become conclusive as against the first defendant,
t did not atiect A's heirs, who had not been part'es
o it. As against them, therefore, the plaintiff had

0 prove his title, and if he failed to do so, he could
lot recover. The first defendant being in possession
night set up this jus tertii, and might plead the title
)f^the other defendants. By Eanade, J., on the
ground that the order in the attachment proceed-
ngs having been passed without investigation of the
[uestion there raised by the parties, it did not be-
oine conclusive against the first defendant not-
vithstanding his failure to bring a suit within twelve
aonths to set it aside, and that he was not precluded
rem raising his defence in the present suit. Kar-
AN V. Gakpatkaji . I. L. B. 22 Bom. 875

1 56. Suit on title after

\ummary order — Omission of judgment-debtor to set
\i»ide summary order — Right of purchaser from
i udgment-debtor to sue. On the 24th March 1879

certain property was attached in execution of a
noney -decree against S, and was finally sold on
he 22nd September 1879 and purchased by the
)laintiffs' father. Subsequently to the attach-
ment, the defendant caused the same property to
)e attached in execution of his decree against
't On the 15th August 1879, S intervened and
|laimed the property as his own, but his claim was
ilisallowed, and the property was sold on the 4th
'August 1880, and purchased by the defendant him-
jelf. On proceeding to take possession, the plaint-
jffs obstructed him, but the obstruction wasdis-
llowedonthe 2Sth July 1882, and they were dis-
;)Osses>sed. The plaintiti's therefore brought a suit to
lecover possession. The Court of first instance
[ejected their claim, on the ground that the omis-
lon on the part of .S to sue to set aside the summary
)rder passed against him on the 15th August 1879
jarred the plaintiffs. The lower AppeUate Court

LIMITATION ACT (XV OF 1817)— contd.
Schedule II— contd.

Art. 11 — contd.

reversed that decree. On appeal by the defendant
to the High Court : — Held, confirming the decree of
the lower Appellate Court, that the plaintiffs' suit
was not barred : the plaintiffs' father having pur-
chased under the attachment, dated 24th March
1879, and having then acquired by his purchase
the interest of S as it stood at that date, that in-
terest could not be affected by any subsequent
act or omission of the judgment-debtor, .S'. Payapa
V. Padmapa . . . I. li. R. 11 Bom. 45-

57.

Civil Procedure

Code, 1882, ss. 278, 283 — Suit by a judgment-creditor
to establish his judgment-debtor's right to property
so as to make it subject to attachment in execution
of his decree — Dis77iissal of such suit — Judgmeni-
debtor not represented by inhj/invf-crrditor in suck
suit — Sidisequent suit by j'i'/r/,„. „(.,/■!, for to recover
the same property — Second npiixil. point- taken for
the first time on. A judgment-creditor of the plaint-
tiff, having obtained a decree against the plaintiff
attached the house in dispute. The defendant
intervened in 1878, and set up a previous purchase
of the house by himself from the plaintiff. The
attachment was removed. The judgment-creditor
brought a suit against the defendant for a declara-
tion that the property belonged to the plaintiff,
and as such was Uable to be attached and sold in
execution. At the hearing of this suit the judgment-
creditor did not appear. The defendant appealed
and produced a sa'.e-deed, which the Court found
proved, and dismissed the judgment-creditor's suit.
The plaintiff now brought the present suit against
the defendant to recover possession of the house. It
was contended for the defendant that the plaintiff,
as the judgment-debtor, might at any rate be
regarded as a party against whom the order in the
execution-proceedings in 1878 was made, and that
the present suit was therefore baned by limitation.
Held, that the plaintiff could not be regarded as a
party to those proceedings. Whether a judgment-
debtor is to be regarded as a party to an investi-
gation under s. 278 of the Code, must depend
upon the facts of each case. As the question of
limitation was raised for the first time on second
appeal, it could not be decided against the ])laintiff.
Shiv.vpa v. Dod Nagaya . I. L. B,. 11 Bom. 114
58. ^ Execution of de-
cree— Deceased judgment-debtor — Execution again^^t
a person not the legal reprc'^entative. The defend-
ants, along with one N and C, had brought a suit
against one .4, in the Civil Court at Peshawar in the
Punjab, and obtained a decree, on the 23rd July
1878, for 1130,545-12-0. In 1881 application for
transfer of the decree to the Court at Moradabad for
execution was made, and it was granted, but no
steps were taken tlicreupon. On the 12th June 1883
A died. On the 30th April 1 884, the defendants again
applied to the Court at Peshawar treating their
judgment-debtor as being tlien alive, for a fresh
certificate to execute their decree in the Moradabad

DIGEST OF CASES.

( 7000 )

LIMITATION ACT (XV OF 1817)— conid.

Schedule II — contd.

■ Art. 11 — contd.

district and obtained it. On the 20th of August
1885, they made an application to the District Judge
of Moradabad for execution of their decree, and in
it was stated that the application was " for execu-
tion against A, and after his death against A L,
the own brother, and D K, widow, and L P, and
others, sons of A, residents of Kundarki, and the
said A L Sit present residing at Umballa and em-
ployed in the Commissariat-Transport Department,
judgment-debtors." It was further stated that
" the judgment-debtor was dead, and his heirs are
living and in possession of his estate, and A L him-
self has reahzed R9,637-4-9 due to the deceased
judgment-debtor from the Commissariat Depart-
ment of Calcutta and appropriated the same, there-
fore to that extent the person of the said A L was
liable." Notification of this application was
issued to A L, as also to the other persons named
therein. A i objected to the application as against
him, stating that, although he was the brother of A,
deceased, yet he always lived separate and carried
on business separately ; and that, there was no
connection or partnership between him and the
deceased judgment-debtor, and that he had no
property of the deceased in his possession. Fur-
ther, as A left issue, it was wrong to call him as
heir to A and take out execution-process against
him. In reply to these objections, the judg-
ment-creditors (defendants) did not contend that
A L was the legal representative of the deceased
judgment-debtor, but treated him as a person in
possession of a sum of money belonging to the
deceased, and therefore liable to the extent of the
sum so received by him. The Subordinate Judge,
holding that A L Was the brother of the deceased
and had realized the amount from the Commis-
sariat office, which he failed to prove that he
paid to the deceased, ordered execution to proceed
against him. A L then instituted this suit to set
aside the order of the Subordinate Judge. It was
contended that the suit was in effect
a suit under s. 283 of the Code of Civil Proce-
dure, and therefore barred as not having been
brought within a year from the order of the Subor-
dinate Judge. Held, that the contention must fail,
inasmuch as an essential condition precedent to a
suit under s. 283 of the Code is the making of an
attachment of some property ; of objection being
taken to such attachment ; of investigation being
made into such objection ; and lastly, of its being
allowed or disallowed, and these did not exist in
this case. Angan Lal v. Gudar Mal

I. li. R. 10 All. 479
59. Sidt hj reversion-
er for possession — Accrual of right to sue —
Unsuccessful application in execution- proceedings
against widow — Civil Procedure Code 1882, s.
283. Under Art. 141, Sch. II of the Limitation Act
(XV of 1877), a reversioner's right to sue accrues
on the death of the widow. The fact that the
e versioner has made an unsuccessful application for

LIMITATION ACT (XV OF 1811)— contd

Schedule 11— contd.
Art. 11— contd.

possession in execution-proceedings against e
w^idow, and has not sued under s. 283 of the Oil
Procedure Code (Act XIV of 1882), does not de i
him under Art. 11 of the Limitation Act from fil^
a regular suit. Tai v. Ladu

I. L. R. 20 Bom. SI

60. Civil Precede

Code (Act XIV of 1882), ss. 278 to 283 and h
Claim to attached propertij by holder of several w, -
gages — Order made on claim — Claim partly alio I
and partly disallowed — Sale in exectition — Suiter
redemption by auction-purchaser within a ym,-
Claim by defendant {mortgagee) in respect of m.-
gage disallowed by order. Certain property V3
attached in execution of a monej^-decree. Aint-
vened, and applied to have the property sold, sv-
ject to the incumbrances created in his favour '
the judgment-debtor under six mortgage-bon.
The Court, after investigating A'' s claim, passed i
order directing the property to be sold subject)
the mortgage-debt due under five out of the i
mortgage-bonds. This order was made on the 2(i
February 1893. In November 1893 [i.e., within
year of the above order), B, who had purchased t;
property at the Court sale, filed a suit to redeem t;
five mortgages subject to which the property bl
been sold. A contended that the property v3
also liable to the debt due under the sixth mortga -
bond. The District Judge held that A was entit 1
to have his claim under the sixth bond investigail
in this suit, inasmuch as the plaintiff had filed ts
suit before the expiration of the year allowed to!
to establish his right by Art. 11 of Sch. II of 1'
Limitation Act (XV of 1877), being of opinion tie
once the present suit had been filed, A could li
have sued under s. 12 of the Civil Procedure'Cc3
(Act XIV of 1882). On appeal to the High Coui:
Held, that A could not claim in the present suiti
respect of the sixth mortgage-bond which had h<^\
disallowed by the order in execution on the 2(i
February 1893. The rule is that an unsuccessl
intervenor in execution-proceedings must estabb
his right by a regular suit within twelve months,
the expiration of which the order passed in exec
tion becomes conclusive against him. The f;
that the purchaser had filed the present suit befi
the year had expired, did not exempt the defend^
frorn this rule. S. 12 of the Civil Procedure Co-
(Act XIV of 1882) did not affect the questi<^
That section only provides that no suit shall '
tried if the same issues are involved in a previou:'
instituted suit. It does not dispense with t'
institution of a suit within the proper time when t'
law requires such institution. Nemagattda
Paresha . . . I, li. R. 22 Bom, 6-)

61. Suit for posf

sion of immoveable property on a declaration that
certain adoption was invalid — Effect of claim p'
f erred on behalf of a minor by the inanager without t
sanction of the Court of Wards — Court of

( 7001 )

DIGEST OF CASES.

( 7002 )

MITATIOTT ACT (XV OF 1817)— contd.
Schedule 11— contd.

Art. 11 — contd.

I {Beng. Act IX of 1ST9), s. 55. An order which
s passed during his minority is not binding upon a
rson whose estate is under the management of the
urt of Wards, if the proceeding in which it was
ssed was not instituted by the manager with the
notion of the Court of Wards, i.e., of the Ccmmis- i
iner to whom the Court of Wards delegated its
tliority to grant such sanction. In a suit brought

• the plaintiff, as shebait of an idol, for recovery of
■session of certain immoveable properties, or in
f alternative in his own right as an heir to the last

II owner, on a declaration" that certain execution-
oceedings which were taken against a person who
IS not the legally adopted son of the last full owner,
id therefore the sales held therein were not binding
)on him, the defence {inter alia) was that the suit
IS barred by limitation under Art. ll,Sch. II of the
mitation Act. Held, that, inasmuch as the order
ider s. 281 of the Civil Procedure Code was passed
iring the plaintiff's minoritj-, and as the proceed-
g in which the said order was passed was not in-
ituted by the manager with the sanction of the
)urt of Wards, the suit was not barred under Art.
, Sch. II of the Limitation Act, although it was
ought more than one year after the claim was
jected. Ram Chandra Mttkerjee v. Ranjit
NGH . . . . I. L. E. 27 Calc. 242

4 C. W. H". 405

62.

Civil Procedure

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 11— contd.

ode (Act XIV of 1882), ss. 278, 281, and 283—
him preferred hy a defendant's predecessor in
tie— Claim disallowed, but no suit brought within
le year to set aside the order — Effect of such an
iverse order as against the defendant in a suit,
■id how far binding. In a suit brought by the
laintiff to recover possession of certain lands bj'
rtueofa purchase by his father, at an execution-
ile held by a Civil Court, it was found by the Court
elow that the vendor of the defendant had pur-
tiased the said lands at a sale held by a Deputy
oUector for arrears of road-cess, and had preferred

claim to the disputed property in the execution-
roceedings which led to the sale at which the
laintiff 's father purchased but which was disallowed
nd no suit was brought by him (the defendant's
piidor) within one year to .set aside the order dis-
Uowing the claim. Held, that the vendor of the
efendant not having brought a suit within one year
|0 set aside the order disallowing the claim, the
I efendant was concluded by that order, even if she
,;as not the plaintiff in the suit, to establish her
iight to the property in dispute. Nemagauda v.
\'aresha, I. L. R. 22 Bom. 640, referred to. Surna-
tOYi Dasi v. Ashtjtosh Goswami
I I. L. R. 27 Calc. 714

I 68, Civil Procedure

pode, 1S82, s. 280— Claim by a mokuraridar.
j-'pon attachment of immoveable property in execu-

ion of decree, a claim Mas made on the ground that
I he judgment -debtor had granted a mokurari in

respect of the property' in favour of the claimant.
The claim was allowed, and the property was or-
dered to be sold with a declaration of the mokurari.
More than a year after this order, the decree-holder
who purchased at an execution-sale brought a suit
for a declaration that the mokurari was fraudulent
and benami and for possession and mesne profits.
Held, that the order was a judicial determination
under s. 280 of the Civil Procedure Code, 1882,
and that therefore the suit was barred under Art. 11
of the second schedule of the Limitation Act (XV of
1877). Rajaram Paxdey v. Raghtbavsmax
Tewary . . . I. L. R. 24 Calc. 563

64. and Art. IZ— Civil Pro-

cedure Code, 18S2, s. 332. Where an application
was made under s. 332 of the Code of Civil Procedure
for possession of property and rejected, and the
applicant brought a suit to recover the property
more than one year subsequent to the order reject-
ing the apphcation. Held, that the suit was not
barred either by Art. 11 or Art. 13 of Sch. II of the
Limitation Act, 1877. Ayyasami v. Samivv

I. L. R. 8 Mad. 82

65.

Civil Procedure

Code, 1859, s. 269, Order rejecting application
under — Suit brought after one year— Civil Procedure
Code, 1877, s. 335. An order having been passed
on the 10th August 1877 under s. 269 of the Code
of Civil Procedure, 1859, cancelling delivery of pos-
session of land brought to sale and purchased by a
decree -holder, no suit was brought by the decree-
holder to estabhsh his rights to the land until 1883 r
— Held, that the repeal of s. 269 of the said Code on
1st October 1877 did not deprive the order of
the 10th August 1877 of the effect it possessed when
passed, and therefore that the suit was barred by
limitation under s. 269, and Arts 11 and 13 of Act
XV of 1877 were not apijlicablc. Koylash Chunder
Paid Chowdhry v. Prcon^dh Roy Choudhry, I. L. R.
4 Calc. 610, and Gopal Chunder JJ itt^r v. Mohesh
Chunder Bored, I. L. R. 9 Calc. 230, distinguished.
Venkatachala v. Appathorai

I. L. R. 8 Mad. 134

66. - Civil Procedure

Code, 1859, s. 269 — Party not in possession. S. 26 9,
Act VIII of 1859, dees not contemplate that the
party in actual possession must sue regularly to get
possession within one year, but that the person who
is not in actual possession shall do so. Fidaye
Shikdar v. Oozeeooddeex . . 7 W. R. 87

67. . Cicil Procedure

Code, 1859, s. 269 — Claim by mortgagee. An attach-
ment having been made in execution of a decree for
rent, an intervenor claimed the land as mortgaged
to himself, but his application was rejected, and he
was directed by the Collector to bring his objec-
tion, if he had any, under s. 269, Act VIII of 1859.
Held, that he was not bound to do so, and his omis-
sion did not bar his right to bring a suit to estabhsh.

( 7003

DIGEST OF CASES.

( 7004

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 11 — contd.

the validity of the mortgages under which he
claimed, provided it was brought within the period
permitted by Act XIV of 1859. Deen Dy.^l Burmo
Doss r. PoKAN Doss . . . 9W. K. 474

68.

Civil Procedure

Code, 1S59, s. 269 — Obstriu:tion in taking possession
after sale in execution of decree — Order. A pur-
chaser of immoveable property at a Court sale, hav-
ing been obstructed by the defendant, made an
apphcation to the Court, under s. 268 of Act VIII
of 1859, for the removal of the obstruction, but
subsequently withdrew his application. The Court
thereupon made an endorsement upon the applica-
tion to the effect that, as the applicant did not wish
to proceed further, no investigation was made :
— Held, that no such order had been made as was
contemplated by s. 269 of Act VIII of 1859, that sec-
tion contemplating at least an order against one
party or the other ; and that, therefore, the provi-
sions contained in the same section as to the time
within which a suit may be brought, did not apply
to the case of the plaintiff. Bhikha v. Sakarlal
I. L. K. 5 Bom, 440

69. Civil Procedure

Code {Act XIV of 1S82), s. 335 — Order under
s. 335 — Subseque-iit suit — Partition — Present posses-
sion— Limitation. The plaintiff purchased certain
land at a Court sale in execution of a money
decree against defendant Xo. 1. In attempting
to obtain possession he was obstructed by de-
fendant Xo. 8, who claimed the land under a
mortgage with possession from the co -parceners
of defendant Xo. 1. He then applied to the
Court for the removal of the obstruction, under
s. 335 of the Civil Procedure Code (Act XIV of
1882), but his application was rejected on the 12th
31arch, 1898. The present suit was brought on the
13th March, 1899, in which the plaintiff, while
seeking a partition of the family property of the
defendants, prayed that the order of the 12th March,
189S, might be set aside and a partition directed,
and that at such partition he might be allotted and
put in possession of the land in dispute : — Held, that
the suit was barred under Ai-t. 11 of Sch. II to the
Limitation Act, 1877, as it was not brought within
a year after the date of the order of the 12th March,
18*98, passed under s. 335 of the Civil Proce-
dure Code, and as it was in form and substance
one for estabhshing the plaintiff's right to and for
the present possession of the particidar land in ques-
tion. Bhimappa v. Ikappa (1901)

I. L, E. 26 Bom. 146

70. Claim to attached

property — Suit to establish right to attached property
—Civil Procedure Code (Act XIV of 1S82), ss.
278, 281, 283. The plaintiff preferred a claim to
properties in dispute, which were attached in execu-
tion of a decree. The claim was disallowed, but the
decree was satisfied and attachment withdrawn :

LIMITATION ACT (XV OF 1877)— cone,

Schedule ll-con(d.

-Art. 11— conoid.

Held, that the plaintiff was not required to institu
a suit under s. 283 of the Civil Procedure Code
establish his right to the property in dispute, ai
that accordingly a suit brought by him to recov
possession of the property was not barri
by Art. 11. vSch. II of the Limitation Act. Ibrahii
bhai V. Kabulabhai, I. L. R. 13 Bom. 72, and Gof.
Purshotnm v. Bai Divali, I. L. R. IS Bom. 24
followed. Surnamoyi Dasi v. Ashutosh Goswa. .
I. L. R. 27 Calc. 714, distinguished. Keish.
Prosad Roy v. Bepix Behary Roy (1904)

I. L. R. 31 Calc. 22)

71.

Claim to

property — Investigation of claim — Civil Procedu
Code {Act XIV of 1882), ss. 278, 281 and 283-
Waqf property. ^Vhere a Court rejects a clai
to attached property by reason of the claima'
having failed to adduce any evidence in support
his claim, notwithstanding that he was allowed '<.
opportunity to do 'so, the order rejecting the clai
is one properly made under s. 281 of the Civil. Pr
cedure Code, and is ".conclusive as between tl
parties, if no suit is brought within one year
establish the claim, as contemplated by Art. 1
Sch. II to the Limitation Act (XV of 1877). Kail
Sing V. Toril Mahton, 1 C. W. N. 24, distinguisht
and Sardhari Lai v. Ambica Pershad, I. L. B. ^
Calc. 521 : L. R. 15 I. A. 123, referred to. Rahi:
Bux v. Abdul Kader (1905)

I. li. R. 32 Calc. 53

72.

Purchasers

Court-sale — Obstruction to delivery of
Obstructor manager of joint family consisting ••
minors — Partition between obstructor and minors-
Allotment of the property to the share of minors-
Withdraival of the obstructor by default ivitho
notice to minors — Design on the part of the ot
structor — Order awarding possession to purchase:
— Suit by minors to recover possession — Limitatio)
Certain purchasers of lands at a Court sale applie
to be put in possession of the property, but ti
delivery of possession was obstructed by one V, wb
was the manager of a joint family consisting «
himself and his two minor step- brothers. Whi
the obstruction proceedings were pending a farlch
or settlement on partition had been arrived at bt
tween the obstructor and his two minor stej
brothers and the lands had fallen to the share of tb
minors. V thereupon designedly withdrew froi
the obstruction proceedings by allowing them to I
dismissed for default, without giving notice of h'
abandonment to the minors and an order was pas.-
ed awarding possession to the purchasers in th
absence of any appearance by V. The order wa
passed on the 6th August 1898. The farkhal 0
settlement on partition, which for its vahdity re
quired the sanction of the Court, had never receivet
that sanction and it was subsequently set aside a
the instance of the plaintiffs. In the year 1903 th

( 7005 )

DIGEST OF CASES.

7006

IMITATION ACT (XV OF 1817)— conid.

Schedule II — contd.
. Art. 11 — concld.

LIMITATION ACT (XV OF 1677)— contd.

Schedule II — contd.
Art. 12— contd.

laintiffs, that is, the step-brothers of F, to whom
ic lands had been allotted, brought a suit to recover
ossession of the lands. Both the lower Courts |
eld the suit to be barred under Art. 11, Sch. II [
f the Limitation Act (XV of 1S77) : — Held, on j
K'ond appeal by plaintiff No. 1, that the suit was j
ot time-barred "under Art. 11, Sch. II of the Limit- j
tion Act (XV of 1877), as the minors were not
eflSciently represented." — Padmaker Vinayak
oshi V. Mahndev Kishna Joshi, I. L. R. 10 Bom. 21,
'lowed. The withdrawal of F by default from
lie obstruction proceedings was designed by him
js appeared from the circumstances) in order to
cprivc the minors of an opportunity of being heard,
he minors had no opportunity of protecting their
iterest which V had abandoned without notice to j
iiem or to any one on their behalf. Shidapa v. \
•exkaji(1908) . . I. L. R. 32 Bom. 404 |

Art. 12 (1871, Art. 14 ; 1859, s. 1, j

cL3)-

See Minor, suit by . 11 C W. N. 1078

See Rent Recovery Act, ss. 38 and 39.

I. L. R. 30 Mad. 444

See Revenue Sale Law, s. 33.

13 C. W. N. 518

See Sale m Execution of Decree — Set-
ting ASIDE Sale — General Cases. {
I. L. R. 29 Calc. 626

1. Suit to Sit aaide

rauduknt sale. Cl. 3, s. 1, applied only to suits to
st aside sales on account of irregularity and the
ke, but not to suits to set aside fraudulent deeds
nder colour of which the sale was made. Kissen
iuixuB Mahatab v. Roghoonundun Thakoor

6 W. E. 305

2. Suit to det aside

"• — Sale of moveable

property in execution of decree — Irregidarity in sale
— Civil Procedure Code, 1859, s. 252. The law
(s. 252, Act VIII of 18.59) provides that no irregu-
larity in the sale of moveable property under an
execution shall vitiate the sale, but that any person
injured thereby may recover damages by suit ;
but it does not follow that the right and interest of
the judgment-debtor in such property may not be
challenged and contested by any claimant within the
period allowed by cl. 3, s. 1, Act XIV of 1859.
Hirdey Bebee v. Besheshuk Pershad

2 Agra, Pt. II, 175

KiSHEN SOONDUR V. FUKEEROODEEN MaHOMED

W. R. 1864, 61

6. Suit to set aside

sale in execution of decree. Per Innes, J. — Art. 12
of the second schedule of the Limitation Act, 1877,
which requires suits to set aside a sale in execution
of a decree of a Civil Court to be brought within one
year from the date the sale becomes final, does not
apply to suits in which the plaintiff was not a party
to, and not bound by, the sale sought to be set aside.
Sadagopa EddsTara Maha Desika Swamiav v.
Jamitna Bai Ammal . I. L. R. 5 Mad. 54

7. Suit to set aside

lie in execution. The limitation of one year pro-
ided by s. 1, cl. 3, was not applicable to a suit
rought by a judgment-debtor to set aside an
wcution-sale, on the ground that the decree-holder
audulently got the property sold in execution of
I previous satisfied decree. Budree v. Lokemun
3 Agra 89

3. . Suit by mortgagee

I enforce lien. Held, that the limitation of one

•ar provided by cl. 3, s. 1, Act XIV of 1859, was
ot apphcable to a mortgagee's suit seeking enforce-
ji'ent of his mortgage hen against the property.
I Ai Purdimun Kishen v. Roushun Singh

1 Agra 111

4. . Suit to set aside

le in execution of decree — Civil Procedure Code,
}59, 8. 264. Qucere : ^^^lether the one year's hmit-
jion (of suits to set aside sales in execution of de-
{ees) under cl. 3, s. 1, applied to a suit brought

;ainst a person who had obtained possession of

■operty by delivery under s. 264, Act VIll of 1859.

BooHUN V. Golam Nujee . . 2 "W. R. 55

sale — Suit to recover land sold m execution of decree. V
having bought lands from .-I, whose husband
(deceased) acquired them at a Court sale, sued .S
in ejectment in 1879. S pleaded limitation on the
ground that B (her deceased husband) had pur-
chased the lands in question at a Court sale in 1876.
Held, that, as A was no party to the decree or the
execution-proceedings' under which B purchased,
it was not necessary for F to set aside the sale to B
in this suit, and it was not barred by Art. 12 of
the Limitation Act, 1877. Ven'kata Narasiah v.
SuBBAMMA . . . I. L.R. 4 Mad. 178

Sale of taruad

property in execution of decree against parly not sued
tw karnavan. Where a suit was brouglit to recover
money from the defendant, who was the karnavan
of a Malabar tarwad, and it was not alleged in the
plaint that the defendant was sued as karnavan or
that the debt was binding on the tarwad : — Held,
that a sale of tarwad property in e.xecution of the
decree was not binding on the members of the
tarwad, and therefore that Art. 12 of Sch. II of the
Limitation Act, 1877, did not apply to a suit brought
by other members of the tarwad to recover the land
sold in execution of the decree. Hajt v. Athara-
MAN. MussA V. Atharaman I, L. R. 7 Mad. 512

9. Suit to sd aside

g(ij^ — Purchase of decree by joint debtor. M sold to
S her rights under a decree for mesne profits which
she had obtained against .-1 and two other persons,
and S thereupon proceeded to execute the decree
against As property, and that property was sold in
execution of_the decree obtained by ^ and was pur-

( 7007 )

DIGEST OF CASES.

( 7008 )

LIMITATION ACT (XV OP 1817)— contd.
Schedule U—contd.

-Art. 12—contd.

chased by B ; but in a suit brought by A for a de-
claration that S was not the real purchaser, the
Court found that 8 had in fact purchased the decree
benami for A' h two joint debtors, and that conse-
quently he had no right to execute it against the
property of A. In a suit brought by A against B in
1874 for the purpose of recovering the property : —
Edd, that the purchase of the benefit of the decree
by A's joint debtors, although it had the legal
effect of satisfying the judgment-debt, did not
affect the decree itself. The decree was not void,
but only voidable, and the sale under it binding on
A. The suit, therefore, was in effect a suit to set
aside a sale under a decree within the meaning of
cl. 14 of Sch. II of Act IX of 1871, and, inasmuch
as it was not brought within one year from the
date of the sale, was barred. Abul Munsoor v.
Abdool Hamid cdias Sabhan Miah

I. L. R. 2 Gale. 98

]_Q^ — Suit to set aside

sale in execution— Party to suit. After the death of
the widow of K, the plaintiff sued as the heir of K
to recover certain immoveable property alleged to
have been granted to the widow for hfe by K for her
maintenance. It appeared that in execution of a
decree obtained against the plaintiff in a previous
suit in which upon the widow's death he was sued as
representing the estate of the widow, the property in
question was sold notwithstanding objection taken
by the present plaintiff that the property was that of
K. The plaintiff's suit was filed more than a year
after the execution-sale, and it was objected that it
was therefore barred. Held, that it was not neces-
sary that the suit should have been filed within one
year, from the date of the execution-sale, because (i)
the setting aside the execution-sale was only colla-
teral to the main object of the suit ; and (n) the
present plaintiff was not a party in her own charac-
ter to the suit in execution of the decree in which the
property was sold. Kali Mohun Chuckerbutty
V. Ananda Moni Dabee . . 9 C. L. B. 18

y\ Suit to set aside

sale'of land in execution of decree. A suit to set
aside a sale of land in execution of a decree against a
third party was held not barred by limitation under
cl. 3, s. 1, if brought within a year after the sale
actually took place. Dossee v. Sheebanee Daeia
5 W, R. 123

See Mahomed Afzul v. Kanhya Lall

2 W. R. 263

Ram Gopal Roy v. Nundo Gopal Roy

4 W. R. 42

But these cases were overruled by Jodoonath
Chowdhry v. Radhomonee Dossee

B. L. R. Sup. Vol. 643 : 7 W. R. 256

12. ■ Suit for posses-
sion by settiwj aside sale. In a suit not only for
reversal of sale but also for possession and declara-
tion of title, the limitation of one year does not

LIMITATION" ACT (XV OP 1877)— contc?
Schedule II — contd.

Art. 12 — contd.

apply. Anooraoee Kooer v. Bhugobtjtty Kooi,
Sham Sunder Kooer v. Jumna Kooer

25 W. R. 1'

13. — Cause of action

— Suit for possession after sale in execution- Ti
plaintiffs sued to recover possession by declarati
of right to certain chur lands as accretions to a pal
talukh and for damages, alleging that they h<i
possession under a mokurari lease granted by t:
defendant No. 3, but were ejected by the defends
No. 1, who had purchased at a sale in executior
an ixparte decree for arrears of rent obtained by tj
defendant No. 2 against defendant No. 4 (who wt
the heir of No. 3's vendor), the ejectment havi';
been effected under proceedings taken by the I'
puty Magistrate under Act XXV of 1861, s. 3l!
Held, that the plaintiffs' cause of action accrued fni
the date of their ejectment. It was not a suit i
set aside the sale, but a suit for possession i
declaration of title. Banee Madhub Bukshee.
Radha Madhub Mozoomdar . 22 "W. R. II

14. Suit or pass-

sion and declaration of right hy setting aside st.
The plaintiffs sued for possession of, and a decla ■
tion of their right to, a share of a zamindari, and]
set aside a collusive decree which defendant Not
obtained on the 13th September 1867 against t)
defendants Nos. 2, 3, and 4, and to set aside the s.j
which was held on the 16th December 1868 in e-
cution of that decree. There was a further pra^r
that the names of the plaintiffs might be substituU
for that of the defendant No. 1 on the Collector! 3
towji. Held, that the suit, although a portionf
the prayer was for possession and declaration f
right was substantially to ^et aside the sale of Id
December 1868, in virtue of which unless got rid ,
the purchaser-defendant's title must prevail of
that of the plaintiffs. Accordingly the suit caii
within the purview of Act XIV of 'l859, s. 1, cl,,
and, not having been brought within one year fru
the date of the sale, was barred. Ram Kan4
Chowdhry v. Kalee Mohun Mookerjee

22 W. R. 1

15. Sale subject U

claimant's right. Where a person's claim to attaj-
ed property was not rejected, but the sale tck
place subject to it -.—Held, that he could sue to estj*-
lish his right to the property at any time witp
twelve years, cl. 3, s. 1, not applying to such a ciP.
Rutnessur Koondoo v. Majeda Bibee

7 W. R. 52

16. ^ • Suit to recif

immoveable property. Where the plaintiff askecju
terms to have a sale in execution of her husbaii ■■<
right and interest in certain land set aside on ,"
ground that those rights had previously to '^
sale been conveyed to herself : — Held, that the H^
was in effect one to recover immoveable propey
and not one to which cl. 3, s. 1, Act XIV of l&t
appUed. Radha Koonwab v. Jankee Koonw'
^^ 9W.B.'

( 7009 )

DIGEST OF CASES.

( 7010 )

LIMITATION ACT (XV OF 1877)-
Schedaile II — contd.

contd.

Art. 12— contd.

KiNoo Doss V. RuGHOONATH Doss 4 "W. R. 34

17.

Suit by claimant

to recover property in ivhich judgment-debtors have no
iniered. Where a claimant, without attempting to
impeach either the proceedings in the suit or in the
decree or in the subsequent sale, seeks to recover
property belonging to himself in which the judg-
ment-debtors had no right or interest, and upon
which, therefore, the jale in execution could have no
'»gal operation : — Held, that a suit of this nature
was not a suit to set aside the " sale of property sold
under an execution " within the meaning of cl. 3,
8. 1 ; and it was not incumbent on such a claimant
to sue, as therein prescribed, within one year from
the date of sale. The plaint might ask in terms
to avoid the sale, but such an allegation cannot
liter the real nature of the suit, if it is otherwise
sufficiently disclosed. Mahomed Buksh v. Maho-
med HossEiN ... 3 Agra 171
s.e. Agrar. B. Ed. 1874, 145

See Sharafatunnissa v. Lachmi Narain

7 M". W. 28

18.

Suit

by prior

mrchaser for possession — Sale to second purchaser.
.'he one year's limitation provided in s. 1, cl. 3,
id not apply to a suit by a prior purchaser to assert
is rights after an auction-sale of the right and
iterest of the judgment-debtor in the projjerty to
noJ;her purchaser subject to those rghts. Mun-
Koo Sahoo v. Jeydar Singh . 2 Agra 231
Nor where he has become the representative by
urchase of the other purchaser. Bithul Bhut
Lalla Rajkishore . . 2 Agra 284

IS- Suit to set aside

de in execution of decree— Suit to recover pos-
■ssion. A purchased immoveable property at an
jction-sale. The same'property was subsequently
urchased by B at another auction-sale. Held, that
suit brought by A against B to recover the pro-
'?rty was virtually a suit to set aside the last sale,
id that it should have been brought within one
?ar from the date of that sale ; and that cl. 3 (and
)t cl. 12) of s. 1 was apphcable. Krishna Ji Josm v.
iTKUND Chimanshet . 2 Bom. 18 ; 2nd Ed. 19
{Contra) Lalchand Ambai Das v. Sakharam
5 Bom. A. C. 139

20.

Suit to set aside

,ecutwn-sale — Suit for possession of immoveable
^operty. The plaintiff, alleging that certain im-
,3veable property belonging to him had been sold
! execution of a decree as the property of another,
,ed the purchaser to have the sale set aside, and to
l^over possession of the propcrtj'. Held, that the
|it was one for possession of immoveable property
jwhich the period of hmitation of twelve years was
phcable. Nathu v. Badri Das
1 I. L. R. 5 AIL 614

VOL. in.

LIMITATION ACT (XV OF 1871)— contd.
Schedule 11— contd.

Art. 12— contd.

21.

Suit for

possession after dispossession in sale proceedings in
execution of decree. The rights and interests of
plaintiS's co-sharer having been sold undera decree,
the purchaser possessed himself of plaintiff's share
as well as of his own. Held, that, in a suit to recover,
plaintiff was not bound to bring his action within
one year from the date of dispossession, but had a
right to the limitation of twelve years. Tonoo
Ram Gossain v. Mohessur Gossain

24 W. B. 302

22. _ Suit to recover

property taken in excess of right of attachment. It is
not incumbent on a person seeking, not to interfere
with the sale in execution of a decree of the right,
title, and interest of the judgment-debtor, but to
recover what has been taken in excess under colour
of sale, tOi sue witliin the period of hmitation
prescribed by law for a suit to set aside the sale.
The mere circumstance that there is a specification
of the subject of the sale at the time of sale is of no
force. It is not the property speci fied, but the right
of the judgment-debtor therein, that is offered for
sale and conveyed. Mahomed Buksh v. Mahomed
Hossein, 3 Agra 171 : s.c. Agra F. B., Ed. 1H74,
145, followed. Sharafatunnissa v. Lachmi Naraut
7 N". W. 288

23. Sale of land in

execution of decree — Suit by third party to recover —
Burden of proof. In a suit to redeem certain land
demised on kanam in 1850 by A to the predeces-
sor of B, C, who was in possession of the land, was
made a defendant. A proved his title to the land,
and possession up to 1850. 0 pleaded title to the
land, and denied that B had ever been in possession.
Both pleas were found to be false. It was found,
however, that C had been in possession from 1869
to 1885, and that in 1876 the land had been sold in
execution of a decree against C (to which A was not
a party) and purchased bj' D, who re-sold to C in
1879. The lower Court held that C's possession
must be taken to have been derived from B, till the
contrary was proved ; but that the suit was barred
by Art. 12 of Sch. II of the Limitation Act, 1877,
because it had not been brought within one year
from the date of the sale in 1876. Held, that the
suit was not barred by hmitation. Nilak.\ndan v.
Thandamma . . . I. Ii. B. 9 Mad. 460

24. — — Decree — Scde in

execution — Land described by boundaries in pro-
clamation of sale — La7id so described really com-
prising two separate lots — Suit by purchaser of one
lot to set aside sale or for compensation. On the 17th
November 1877, a certain piece of land described in
the proclamation of sale as " Survey Xo. 294, Pot
No. 3, measuring 24,' gunthas," the boundaries of
which were also set forth, was sold by auction in exe-
cution of a decree obtained by the first defendant
against defendants Nos. 2, 3, and 4, and purchased
by the plaintiff. The boundaries, as stated, really

10 o

( 7011 )

DIGEST OF CASES.

( 7012 )

LIMITATION ACT (XV OF 1877)— cont^Z.

Schedule II — contd.
Art. 12— contd.

included another piece of land, Survey No. 294, Pot
No. 4, which comprised 3 acres 2J gunthas. This
latter piece of land was put up for sale on the follow-
ing day, and was jjurchased by defendant No. 5.
On 28t"h November 1877, the plaintiff applied to the
Court to have the sale set aside and his money
returned, unless he was put in possession of all the
land included in the boundaries mentioned in the
proclamation ; but his application was refused, and
the sale was confirmed on 20th July 1878. The
plaintiff on the 3rd July 1881 brought the present
suit, praying that he might be put into possession of
the land as described in the certificate of sale, which
was identical with the proclamation, and included
Pot No. 4, or that the first defendant might be
ordered to pay him the amount of his purchase-
money with interest. Both the lower Courts
rejected the plaintiff's claim. On appeal to the
High Court : — Held, confirming the decree of the
Court below, that the suit regarded as one to set
aside the sale, was barred by Act XV of 1877, Sch.
II, Art. 12, cl. (a). Mahomed Sayad Phaki v.
Navoji Balabhai . I. Ij. B. 10 Bom. 214

25.

Suit to set aside

sale in execution if decree — Suit for possession of
immoveable property sold in execution of decree —
Limitation Act, IX of 1871, Sch. II, No. 14. P
obtained a decree against M in April 1874 in execu-
tion of which property belonging to the latter was
sold in 1874, 1875, and 1876. In March 1880, this
decree was reversed by the Court of last appeal.
In February 1881, M sued to set aside the sales of
his property in execution of the decree and for pos-
session of the property. Held, that, both under No.
14, Sch. II of the Limitation Act, 1871, and No. 12,
Sch. II of the Limitation Act, 1877, the suit was
barred by limitation. Parshadi Lal v. Muham-
MED Zain-tjl-abdin. Mtjhammed Ashgar Ali v.
Mijhammed Zain-tjl-abdin . I. L, E. 5 All. 573

26. Suit to set aside

sale held in execution of decree — Civil Procedure Code
(Act XIV of 1SS2), ss. 311, 312. If on an apphca-
tion for execution the Court erroneously holds that
the application is not barred and orders a sale, the
order, though erroneous and liable to be set aside in
the way presented by the procedure law, is not a
nullity, but remains in full force until set aside, and
a sale held in pursuance of such order is, until set
aside, a valid sale : a suit to set aside such a sale is
governed by Art. 12, cl. (a), of Sch. II of Act XV of

1877. The word "disallowed " in s. 312 of the
Civil Procedure Code has no reference to an order
passed on an appeal, but refers to the disallowance
of the objection by the Court before which the pro-
ceedings under s. 311 are taken. On the 15th June

1878, a judgment-debtor filed a petition objecting
to execution of a decree against him proceeding on
the ground that the decree was barred. On the
18th November 1878, that objection was overruled
and certain of his property sold. Against the order

LIMITATION ACT (XV OF 1877)— confd.

Schedule II — contd.
Art. 12— contd.

overruling his objection the judgment-debto
appealed, and ultimately, on the 13th .lanuary 1880
the order was set aside by the High Court, and thi
decree was held to have been barred. Pendin
these proceedings, the judgment-debtor also, on th
17th December 1878, applied, under the provision
of s. 311 of the Civil Procedure Code (Act XIV c
1882), to set aside the sale on the ground of materif
irregularity, but that application was ultimate)
rejected on the 17th May 1879, and the sale w
confirmed on the 21st May 1879. On the 2nd Ap
1880, the judgment-debtor applied to set aside tt
sale on the ground that the decree, in execution (
which it had taken place, had been held to 1
barred, and though an order setting aside the sa
was made by the original Court, it was subs
quently set aside by the High Court on the 13i
April 1881, as having been made without jurisdi
tion. The judgment-debtor now brought a suit c
the 4th .January 1882 upon the same grounds to s
aside the sale and recover possession. Held, th
the suit was barred. Mahomed Hossein
PxjRUNDFR Mahto . I. L. B. 11 Calc. 2{

See Gitnessar Singh v. Gonesh Das

1. L. B. 25 Calc. 7(

27. Endowment

Hindu — Execution-proceedings against manager, s-
to set aside. In 1866, V (the father of the plaint!
sued his brother H and G (one of the two sons of
and defendant No. 1 ) to establish his right to a thi
share of the management of certain lands grant
for the maintenance of a Hindu temijle. In tb
suit V obtained a decree that he should have tt
exclusive management every third year, but wi
ordered to pay costs. To enforce payment of th(!
costs, H in execution of the decree attached 1-
third share of V in the management of the lai.
The share was accordingly sold by auction in Jai-
ary 1870 to a Marwadi, who afterwards, in May 18'.
resold it to the appellant T (another son of H al
defendant No. 2). V died in 1876. In 1879 '
plaintiff sued G and the appellant (the two somi
H) for his share of the management. It \h
contended for the defence that, as the executi.-
sale of January 1870 was not set aside within a ye .
the right to treat it as void by the plaintiff ^s
barred by Art. 12 of Sch. II of Act XV of ]?!■
Quotre : Whether V could have got himself |-
instated in the management without bringing a .'1^
to set aside the sale within a year from the date^'
the order confirming it. Trimbak Bawa v. Nara^;^
Bawa . . . . I. L. B. 7 Bom. ]»

28.

Rights of /;

chasers at sales in execution of decree — Two jvdi"
sales of the same property, each in execution ('
separate decree — Conflicting claims thereunde--
Purchase pendente lite— Limitation Act {XV of IS '
Sch. II, Art. 13. The same property having l'"
sold in execution of two different decrees, the rej
was that the two purchasers at the respective &'^

( 7013 )

DIGEST OF CASES.

( 7014 )

LIMITATION ACT (XV OF 1877)— conid.
Schedule 11— contd.

Art, 12— co7ild.

afterwards contested title to the property. The
sale to the first purchaser was confirmed in Novem-
ber 1882. The- sale to the second, who obtained
possession, took place in October 1881, the property
having been attached under the second decree in
March 1883. The first purchaser on the 28th July
1884 brought a suit, to which the second purchaser
was not a party, to have that attachment declared
invalid. By a decree of the 14th November to that
effect the second purchaser was bound as a purchaser
pendente lite ; and his possession was of no avail to
;iim. Held, that the attachment of March 1883,
although it had preceded the institution of the first
purchaser's suit of 1884, afforded no support to the
second purchaser's claim, attachment under Ch.
XIX of the Civil Procedure Code merely preventing
alienation, and not giving title. Moreover, after
the first sale in 1882 there had been no interest left
to be sold to another purchaser, so that, without
there having been the decree of 1885, the second
purchaser would still have had no title against the
first. There was no occasion for the setting aside
the second sale within the meaning of Arts. 12 and 13
of Sch. II of the Limitation Act (XV of 1877) : nor
was it set aside. That sale was held not to affect the
right of the first purchaser, there being a wide
difference between setting aside a sale and deciding
that a plaintiff's right was not affected by it.
MoTi Lal v. Karrabuldin I. L. R. 25 Cale. 179
L. R. 24 I. A. 170
1 C. W. ISr. 639

Minor, when

'• luinur, wiien

lound by proceedings against him — Minors Act (XX
>/ 1S64), s. 2 — Suit by a minor, one year after attain-
ng nuijority, to recover property sold in execution of
I decree obtained against him during minority. In
1870a creditorof the plaintiff'sfatherbroughtasuit
i\o. 573 of 1870) against the plaintiff and obtained a
noney-decree against him. The plaintiff was then
-^ minor and his estate was administered by the
.oJlector of Ratnagiri. In this suit he was re-
•resented by his mother and guardian. At the sale
leld ui 1871, in execution of the decree, the property
ti question was purchased by the defendant, who

btained possession in 187(3. In 1879 the plaintiff
ttained'majority, and in 1882 he brought the pre-
entsvntto recover the property from the defend-
nt. Ihe lower Courts, regarding the suit as one
0 set aside the sale to the defendant, held that it
•as barred by Hmitation under Art. 12 of Sch. II of
le Limitation Act (XV of 1877). On appeal by the
laintiff to the High Court -.-Held, that Art. 12 of
le Limitation Act (XV of 1877) did not apply, and
|iat the suit was not barred. That article applied
aiy to cases m which the plaintiff would be bound
17 the sale if he did not succeed in getting it set
Ca^ I? ^^"^ present case the plaintiff was not
pund by the proceeding in suit No. 573 of 1870, as
' 9 * ^. ^r'^ properly represented as required by

2 of Act XI of 1864. Vishnu Kesshav v. Ram-
UKJKA Bhaskar . I. L. R. 11 Bom. 130

LIMITATION ACT (XV OF 1877)-

Schedule II — contd.
Art. 12— contd.

contd.

30. _^ and Art. 7— Guardian— Re.

presentative of minor in a suit against him —
Certificate—Act XX of 1864— Joint family—
Mortgage by father and eldest son— Death of father
and eldest son — Decree obtained by mortgagee against
minor ,wn represented by the widow — Sale in execu-
tion— Subsequent suit by minor to set aside .sale. In
1862 R and his son A mortgaged the property in
dispute to B. In 1863 R died leaving a widow S,
and two sons, viz., A and P, a minor. In 1866, A
and S, the latter of whom acted for''herself and as
guardian of herTrainor son 'P, settled the account
with B, the mortgagee, obtained a fresh advance,
and passed a fresh mortgage- bond 'to him. In 1868
A died. In 1869 5's assignee filed a suit upon the
mortgage, and obtained a decree against the
mortgaged property against S both as guardian of
the minorJP and also against her in her individual
capacity. At the Court sale held in execution of
this decree, D purchased the property in dispute in
1870. In 1881 P filed the present suit to recover
possession of the property, alleging that Z)'s pur-
chase was invahd as against him, he having been
a minor at the time of the Court sale. He sub-
sequently assigned his interest to the respondent
(second plaintiff). It was contended on behalf of
the defendant D that the suit, not having been
brought within one year after P had attai'ied
majority, was barred by limitation under Art. 12,
Sch. II of Act XV of 1877. Held, that the suit was
not barred by limitation. P had not been properly
represented by S in the suit of 1869, as she had not
obtained a certificate under the Minors Act (XX of
1864). P was therefore not bound by the decree in
that suit or by the sale in execution, f^nd Art. 12,
Sch. II ofJAct XV of 1877, did not apply. Daji
Hi.AiAT V. Dhirajram Sadaram

I. L. R. 12 Bom. 18

31.

" Order " of

Rsvenue Officer — Judicial order. The "order" of
a Collector or other officer of revenue, as the word
is used in the latter portion of cl. 3 of s. 1 of Act XIV
of 1859, means an order of the nature of a decree,
or made by the Collector or other Revenue officer
in his judicial capacity. Where a piece of land, em-
braced within the operations of the revenue survey,
and subjected to a defined assessment, was put up
for sale by the Collector in consequence of the
occupant refusing to pay a fine to be allowed to
continue in occupation of it, and was purchased by
one of the defendants, and the occupant, asserting
that he had been wrongly dispossessed, sued to set
aside the sale and to be declared entitled to recover
the land and retain possession of it, on condition of
pajnng the assessment as settled upon it by the
Revenue officers, but delaj-ed bringing his suit until
June 1869, the .sale having taken place in January
1867, — it was held that, though more than one year
had elapsed from the date of sale, the suit was not
barred under the provisions of cl. 3 of s. 1 of Act

10 o 2

( 7015 )

DIGEST OF CASES.

( 7016 )

LIMITATION ACT (XV OF 1871)— contd.

Schedule II — contd.
"Art. 12— contd.

KIV of 1859. Sakharam Vithal Adhikari v.
Collector of Ratnagiri . 8 Bom. A. C. 288

32. and Art. 14 — Suit to set aside

an act or order of an officer of Government— Suit for
possession — Dispossession under an order made
by officer of Governme7it. Arts. 12 and 14 of Sch.
II of the Limitation Act (XV of 1877) refer to
orders and proceedings of a public functionary, to
which by law is given a particular effect in favour
of one person or against another, subject in the
regular course to a further judicial proceeding
having for its object to quash them or set them
aside. When an order does not fall within the
authority of an official who makes it, it is legally
a nulhty, and therefore need not be set aside.
Shivaji Yesji Chawn v. Collector of Ratnagiri

I. L. B. 11 Bom. 429

33. . Fraud— Suit to

set aside sale in execution of decree — Bevg. Reg. XLV
of 1792. In a suit for the cancelment, on the ground
of fraud, of an auction-sale made under the pro-
visions of s. 12, Regulation XLV of 1793, and
for the reversal of a Judge's order in appeal con-
firming the sale, the period of limitation was held
(under s. 9, Act XIV of 1859) to run at the latest
from the date of the Judge's order of confirmation,
and to extend to one year under cl. 3, s. 1. Enaet
Ali Khan v. Kumola Koonwab . 11 W. R. 261

34.

Suit to set aside

sale. A sale having been effected bj' order of a
Deputy Collector, an appeal was made to the Collec-
tor, who set aside the sale. The Commissioner,
however, considering that the Collector had no
jurisdiction, and that no injury had been made out,
reversed the order of the Collector. Held, that the
sale did not become confirmed or otherwise final and
conclusive before the date of the Commissioner's
order, and therefore a suit within one year of that
order was in time. Prannath Roy ;■. Teoyltjcko-
natjth Roy . . . . 14 W. R. 281

35. -

Suit to set aside

LIMITATION" ACT (XV OF 1877)— conti.
Schedule II — contd.

Art. 12~contd.

land. The land of D was improperly sold, in execu-
tion of a decree of a Civil Court obtained against S
for arrears of revenue, by the assignee of the revenue
of the lands of D and iS'. Held, in a suit brought by
D to recover her land from the purchaser at the
Court sale, that the suit, not having been brought
within one year from the date of the confirmation
of the sale, was barred by Art. 12 of Sch. II of the
Limitation Act, 1877. Stxryanna v. Durgi

I. L. B. 7 Mad. 258

38.

Suit to set asid.

sale in execution of decree — Suit for land sold in
execution as property of third parties. The plaintiffs
sued in 1893 to recover possession of land of which
their family had been in possession till 1884. The
land had been sold to the defendant in 1881 in exe-
cution of a decree against the plaintiffs' cousins,
but the sale had not been confirmed. A decree was
passed as prated in respect of a moiety of
the land which represented the plaintiff's share :
Held, that decree was right. Qitosre : Whether the
suit would have been barred under the one year's
rule of limitation if the sale had been confirmed.
Suryanna v. Durgi, I. L. R. 7 Mad. 2oS, doubted
Parekh Ranchor v. Bai Vakhat, I. L. R. 11 Bom
119, referred to. Narasimha Naidxj v. Ramasamj
I. L. B. 18 Mad. 478
Bond fide pur

chasers. Art. 12 of that Schedule which prescribes
a period of one year for suits to set aside sales fo
arrears of revenue is intended to protect bond fid
purchasers only. Venkatapathi v. Subeamany
I. L. E. 9 Mad. 45'i

40.

Sale for arrear.

sale for arrears of Government revenue. A suit to set
aside a sale for arrears of Government revenue
must be brought within one year from the date when
the sale becomes final and conclusive. Raj
CJhtjnder Chtjckerbutty v. Kinoo Khan

I.L. B. 8Calc. 329

36. Suit brought to

set aside sale for arrears of revenue. Where lands
had been sold for alleged arrears of revenue and
bought in for Government, but the sale had not been
registered under s. 38 of Madras Revenue Recovery
Act (II of 1864) -.—Held, that a suit brought to set
aside the sale after one j'ear from the date thereof
against a bond ;?(?e''purchaserfor value from Govern-
ment was barred by hmitation. Karuppa Tevan v.
Vastjdeva Sastri . . I. L. B. 6 Mad. 148

_ 37. Sale in execu-

ion of decree for arrears of revenue — Suit to recover

of revenue — Suit for possession of land — Frau(t
The plaintiff's land was sold by the revenue autho
rities for arrears of assessment due to the inamdart
The plaintiff apj^lied to the mamlatdar to have th
sale set aside on the ground of fraud on the part c
the inamdar, but his application was rejected ; an
the sale was confirmed in July 1879. The auctior
purchaser was thereupon put in possession. I
1886 the plaintiff sued to recover possession of tb
land in question, held, that the suit, having beei
brought more than one year after the date of tt
sale, was barred by Art. 12, els. (b) and (c), of Sch. 3
of the Limitation Act (XV of 1877). The sale W£
one in pursuance of an order of the Collector d
other officer of revenue, and, if not for arrears '
Government revenue, was at anj^ rate a sale fi
arrears of rent recoverable as arrears of revenu
The plaintiff, as occui^ant of the land, was bound 1
the sale, unless and until it was reversed and tl
title of the purchaser at the sale was a perfect
good title until the sale was set aside in due course
law. Balaji Krishna v. Pircil4Nd Budhakam
I. L. B. 13 Bom. 25

41. Sale under Puhi

Demands Recovery Act [Bengal Act VII of 18S
for arrears of cesses — Confirmation of sa.

( 7017 )

DIGEST OF CASES.

( 7018 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 12 -contd.

Where the Board of Revenue discharged an order
of the Commissioner, dated the 25th January 1884,
which had confirmed a sale by the Collector in 1882,
but afterwards on the 21st August 1886 discharged
its own order and revived that of the Commissioner :
—Held, that the confirmation of sale dat-ed only
from the 21st August 1886, and that a suit brought
in July 1887 to set aside the sale was not barred by
Act XV of 1877, Art. 12. Baijnath Sahai v. Ram-
UT Singh . . . I. L, R. 23 Gale. 775
L. R. 23 I. A. 45

42. . Madras Rent

Becovcry Act (Madras Act VIII of 1865), ss. 7, 38,
30 and 40 — Suit to recover land sold, without setting
aside sale. Where a plaintiff sued to recover land
illeged to have been sold under the provisions of
:he Rent Recovery Act, alleging that the provisions
3f s. 7 of that Act had been complied with, and
hat therefore the sale was illegal : — Held, that the
>uit could not proceed without setting aside the sale,
ind that the sale having taken jalace more than a
.ear before the institution of the suit, the suit was
)arred. Ragavendra Ayyar v. Karuppa Goun-
uN .... I. L. R, 20 Mad. 33

I 43. — Dispossession —

'^uit to recover land sold hy mistake in execution of
'ecree. Limitation Act, Sch. II, Art. 12 (a), is not
ppUcable to a case in which dispossession is the
ause of action, and in which the plaintiff was not a
arty to, or bound by, the sale. Held, accordingly,
hat a suit brought in 1892 to recover possession of
'ie plaintiff's share of land sold by mistake in
xecution of a decree against his uncle in 1881 was
,ot barred by limitation. Kadar Hussain v.
[ussAiN Saheb . . I. L. R. 20 Mad. 118
Suit to recover

44. ^

roperty sold in execution of a decree in excess of what
as saleable under the decree. Art. 12, cl. (b), of the
,cond Schedule to the Limitation Act, 1877, does
)t apply to a suit to recover property sold osten-
bly in execution of a decree, but the sale of which
IS in fact not authorized by the decree under which
e said property purported to have been sold,
m Loll M > Ira v. Bama Sundari Dehia, I. L. B. 12
dc. 307 ; Balwant Rao v. Muhammad Husain,
I L. R. 15 All. 324 ; Lala Moharuk Lai v. The
cretary of State for India in Council, I. L. R.
\ . Calc. 200 ; Dakhina Churn Chattopadhya v.
lash Chunder Roy, I. L. R. 18 Calc. 526 ; Maho-
■'"d Hossein v. Purimdur Mahto, I. L. R. 11 Calc.
7 ; and Sadaijopa v. Jamuna Bhai Ammal,
I L. R. 5 Mad. 54, referred to. Suryanna v.
:<»•?», /. L. R. 7 Mad. 258, dissented from. Nazar
I V. Kedar Nath . I. L. R. 19 All. 308

1*^- • ; — Suit hy rever-

mtr to establish his title to property sold in execution
, decree obtained against a widow as representing
' ate—Collusion. A widow of a deceased Hindu
presents the estate of the reversioner for some
'•irposes : but it is her duty not only to represent

LIMITATION ACT (XV OF 1877)— con^i.
Schedule 11— ccmtd.

Art. 12— concU.

the estate, but to protect it. When a suit is brought
on the ground that the widow did not in a former
suit protect the interests of the person who was to
take after her death, but collusively sufifered judg-
ment against herself and sale of her" husband's pro-
perty in execution, then if such person on that
ground treats the sale as inoperative, and seeks for a
declaration that it is not binding on him, Art. 12,
cl. (a), of Sch. II of the Limitation Act (XV of 1877),
does not apply to the suit. Parekh Ranchor v.
Bai Vakhat . . .1. L.^R, 11 Bom. 119

Arts. 12, 49, 115, 14:5~De posit—

Loan-— Debtor — Executor — Assets. K made over
certain Government securities to / to be kept by
him in deposit and, if necessary, to be used by him
for raising funds wherewith to pay the purchase
money of a house ; and I was to draw the interest
accruing due on the securities from time to time and
pay the same to K, and in case / had occasion to
pledge or sell the securities he would redeem or
replace the same on being required so to do by K.
Held (Hill, J., dissenting), that the transaction
amounted to a deposit and not a loan, and Art.
145 of the Limitation Act (XV of 1877) governed
the case. Even if the transaction amounted to
a loan, inasmuch as / was ^'s executor and acted
as such, the ecpiitable doctrine that a debtor-
executor is accountable for the amount of his debt
as assets in his hands would appl}', and the plaintifE
as administratrix of K having instituted the
suit within two years of her appointment was not
barred from demanding from the estate of /, the
debt (assuming it to be a debt), which he contracted
with K. Held, per Hill, J., that the transaction
did not amount to a deposit. Either Art. 49 or
Art. 115, or Art. 120 of the Limitation Act (XV of
1877) would apply to the case. There is nothing in
s. 5 to s. 25 of the Limitation Act (XV of 1877),
which gives to the above equitable doctrine the
effect of suspending the running of the Statute and
which controls and modifies the rule enacted by s. 4.
Statutes of Limitation are in their nature strict and
inflexible enactments and ought to receive such a
construction as the language in its plain meaning
imports. Luchniee Buksh Roy v. Runieet Ram
Panday, 13 B. L. R. 177 ; Freakly v. Fox,' 9 B. 4' C.
130 : Ingle v. Richards, 28 Beav. 366, and Webster
V. Webster, 10 Vesey 93, referred to. Administra-
tor-General OF Bexg-vl v. Kri-sto Kamixi Dassee
(1904) . . . . L L. R. 31 Calc. 519
B.C. 8 C. W. N. 500

Arts. 12, 142—

See Limitation . I. L. R. 34 Calc. 811

Arts. 12 and 144—

See Execution of Decree.

L L. R. 26 All. 346

Art. 2 (&)—

See Notice . I, L. R. 34 Calc. 787

( 7019 )

DIGEST OF CASES.

7020 )

LIMITATION ACT (XV OF 1877)- contd.
Schedule II — cont^.

Arts. 12, cl. (i), 95 and 120—

Public Demands Re-

covery Act (Bengal Act VII of 1880), ss. 10
and 12 — Suit to set aside a sale on the ground
that no notice under s. 10 was served — Fraudulent
purchase by a co-sharer. A instituted a suit
to set a&ide a sale held under the Public Demands
Recovery Act, on the allegation that the defend,
ants, who were his co-sharers, fraudulently
suppressed the notice under s. 10 of the Act, and
purchased ' the property in the name of their
agent. Upon an objection being taken that
the suit was barred by limitation under Art. 12, cl.
(b) of the Limitation Act : — Held, that the suit to
set aside such a sale is governed not bv Art. 12,
cl. (&), but either by Art. 95 or Art., 120 of the
Limitation Act. Syamlal Mandat. v. Nn.MONEY
Das (1907) . . . I. L. R 34 Calc. 241

Arts. 12, 144, 148—

See New Trial, application for.

I. L. E. 32 Calc. 339
See Sale in Execution op Decree.

I. L. R. 32 Calc. 296

Art. 13 (1871, Art. 15 ; 1859, s. 1,

el. 5)-

See Sale in Execution of Dsf^REE — Dis-
tribution OF Sale-proceeds.

5 C. W. N. 649

Suit to set aside

summary order. Quaere : Whether, ^^•ith reference
to cl. 5, s. 1, a suit ■«'ill lie to set aside a summary
order after the expiration of one j'ear. Gobind
Nath Sandyal v. Ramcoomar Ghose

6 W. R. 21

2. Final decision —

Order dismissing apfcal. The final decision, award,
or order contemplated by cl. 5, s. 1, was a final
decision of the Court which had competent jurisdic-
tion to determine the case finally, and not the order
of a Court superior to such Court dismissing an
appeal from the decision of such Court for want of
jurisdiction. Oleo-unissa v. Buldeo Nabain
Singh 7 W. R. 151

3. Order under Act

XIX of 1841— Official Trustees Act— Suit for posses-
sion—Limitation Act {XIV of 1S59), s. 1, cl 12. A
summary order under Act XIX of 1841 for posses-
sion of property left by a deceased person is no bar
to a regular suit to try the title to such property and
to obtain possession under that title ; it is therefore
unnecessary to set aside the order before granting
relief in the suit. Hence the period of limitation for
such regular suit is that provided by cl. 12, s. 1, Act
XIV of 1859, namely, twelve years, and not one year
as provided by cl. 5 of the same section. Lakna-
EAiN Singh v. Mankoer

B. L. R. Sup. Vol. 633

LIMITATION ACT (XV OF 1877)— conftf.
Schedule II — contd.

Art, IZ— contd.

s.c. Loknarain Singh v. Mayna Koer

2 Ind. Jur. N. S. 191 : 7 W. R. 198

Civil Procedun

Code, 1859, s. 246. The rights and interests of om
of three brothers of a joint Hindu family havinj.
been sold in execution of a decree, a suit brought
not to set aside such sale, but in right of inheritanci
of the judgment-debtor's brother's share in th.
family property, ^vas held net barred by limitatio
under cl. 5, s. 1, and s. 246, Act VIII of 1859
Lalla Beharee Lall v. Lalla Modho Persai

6 W. R. 6(

Summary decisio'.

— Certificate of administration under Act XXVII o
lS60^Order made under OfficialTrustees AcHXI2
of 1841). The period of limitation prescribed Ir
Act XIV of 1859, s. 1, cl. 5, in the case of suits t
alter or set aside summary decisions and orders o
any of the Civil Courts not estabished by Roya
Charter, when such suit is maintainable, namel}
" the period of one year from the date of the fins
decision, award, or order in the case," applied t
the grant of a certificate under Act XXVII of 186(
It also applied to an order made under Act XIX c
1841 (the Official Trustees Act), refusing to put th
applicant in the possession of property as mohun
Greedharee Doss v. Nundkishore Dutt

Marsh. 573 : 2 Hay 63

s.c. on appeal to Privy Council. Greedhari|

Doss V. Nundkishore Doss '

11 M oo. I. A. 405 : 8 W. R. P. C. 2

{Contra) Bipro Pershad Mytee v. Kanve Deyei

1 W. E. 34

6. — ^ — Suit to recov

properties by the rightful heir of deceased more tk
one year after grant of certificate of heirship to t
rival claimant — Effect of such a certificate — Practiv
In 1877 the plaintiff applied for a certificate
heirship to one T, her husband's uncle, whohaddii
in 1876. The defendant opposed the applicatio
and alleged that T had left a will in her favoi
On the 28th July 1877, the District Judge made >\
order rejecting the plaintiff's application and grar
ing a certificate to the defendant. In 1879 tj
plaintiff brought the present suit, claiming to
entitled to the property left by T. It was conten)
ed {inter alia) for the defendant that the plaintiff'
suit was barred, she having failed to apply to «■
aside the order granting the certificate to defendalr
within one year from the date of that order. Tf
Court of first instance overruled the objection, at
awarded plaintiff most of her claim. The defendaj*
appealed, and the lower Appellate Court revers[
the lower Court's decree, holding the suit barrc-
On appeal to the High Court : — Held, restoring t>
decree of the Court of first instance, that the pl<iij-
iff's suit was not barred. A certificate of heiralj)
confers only the right of management of the propv
of the deceased, and is intended to give security

( 7021 )

DIGEST OF CASES.

( 7022 )

IMITATION ACT (XV OP 1877)— contd.
Schedule II— contd.

Art. 13— contd.

liird persons in dealing with the person who claims
i) be the heir. Where the right of the person, to
ihom the certificate is granted to be the heir of the
eceased, is in controvers}-, there is no necessity to
are the order granting him the certificate set aside ;
nd the question, whether the suit to determine the
ight claim, is in time, is to be determined by the
actions of the Limitation Act relating to suits for
16 possession of property. Bai Kashi v. Bai
•^NA . , . I. L. R. 10 Bom. 449

*• Suit to set aiiide order

nder Act XXVII of 1S60. A suit to set aside a
immary order j^assed under Act XXVII of 1860
lay be brought within a year from the date cf the
rder ; but such order is no bar to a suit upon title
lough brought after the year. Kalee Prosunno

OOKERJEE V. KOVLASH MONEE DeBIA

8 W. R. 126

"; — . Order relating to

ruled property of intestate— Summary order. Held,
lat the Judge's order relating to the landed pro-
■rty of a person dj-ing intestate, being apparently
1 order made \\ithout jurisdiction, had no legal
)erat:on, and was not a summary order within the
eamng of the 5th clause of s. l.^Act XIV of 1859
CTGUDH Nath v. Doorga (Iir . 1 Agra 241

Suit to

eject
1

preventative of person put in possession by order o
ml Court— Summary decision. The plaintiff was,
'■ ^".°y"^,'" of tbe Civil Court in execution of a decree
which the plaintiff was no party, ejected from the
.ssession of a muttah. He brought a suit more
an three years afterwards to eject the ]e<ral
presentative uf the person who was so put in pos-
^lon. Held (reversing the decree of the Civil
'urt). that the order of the Civil Court was not a
mmary decision within the meaning of cl. 5, s 1
d that the suit was not barred. That clause was
ly apphcable to orders which the Civil Courts were
ipowered to pass deciding matters of disputed
operty raised for hearing and determination by a
mmary proceeding between the parties disputincr.
•PUSDY Ibram Sahib v. Sam . 4 Mad. 297

iV^ 7~r, ; :: Suit against order

' Mamlatdar under Bom. Act V of 1864. Al-
mgha Mamlatdar's order under the last clause
';?• 1 of Bombay Act V of 1864 is a summary
yision a suit in the Civil Court to establish a right
■ "Dst the operation of such order is not a suit to
•aside the order itself, but for possession in
^^sition to that recognized by Mamlatdar's order,
• >^ not therefore within the limitation of one year
V«f cl- 5, s- 1, Act XIV of 1859. Babaji v. Ann v
10 Bom. 479

Suit for pro-

A suit to recover the pro

is of sale in execution

] , . <;<-"nu«. -i oi.../ vu ic>.u> CI iiic pro-

wls 01 sale in execution of a decree alleged to have
'UOrawn out by defendant by virtue of an order

LIMITATION ACT (XV ofl877)—contd.
Schedule II— contd.

» Art. 13— contd.

Wa Civil Court, under s. 270, Act VIII of 1859, is in
reality a suit to alter or set aside a summary decision
of a Civil Court, and is governed bv the limitation of
one year prescribed by cl. 5, s. 1, Act XIV of 1859.
Dwarkaxath Biswas v. Roy Dhunput
Singh 17 W. R. 227

,' — Suit for money

paid into Court by defendant, but recovered from third
person in execution of decree. A suit to recover
money paid by the defendant into Court with was
payable to the plaintiff, and which was afterwards
recovered by the defendant in the execution of a
decree against a third person, under an order of the
Court executing the decree, was held not barred by
hmitation, under the provisions of Act IX of 1871,
second schedule, Art. 15, by reason of not having
been instituted within one year from the date of the
order. Debi Das v. Nur Ahmed . 7 N. W. 174

13. Suit for refund

of sale-proceeds paid in accordance with order for
distribution under s. 295, Civil Procedure Code, 18S2
— Multifariousness. In execution of a decree against
six persons the plaintiffs had certain property
brought to sale, the proceeds of which were brought
into Court. The defendants, who held five separate
decrees against some of the persons against whom
the plaintiff's' decree was obtained, applied to have
the amount in Court rateably distributed ; and in
accordance with an order of the Court, dated 13th
September 1880, this was done, the proceeds being
distributed in proportion to the amounts of the
decrees. In a suit brought on 24th August 1883
against the defendants, on the allegation that the
plaintiffs were entitled to the vvhole of the proceeds,
or in the alternative for distribution on a different
principle : — Held, that the suit was one to set aside
the order, and not having been brought within one
year from the date of the order was barred by limi-
tation under Art. 13, Sch. II of Act XV of 1877.
Ram Kishen v. Bhaivani Das, I. L. R. 1 All. 333,
distinguished. GowRi Prosad Krxur i-. Kam
Ratax Sircar . . I. Ii. R. 13 Calc. 159

14. and Art. Q^— Civil Procedure

Code {Act XIV of 1SS2,) s. 295— Suit for a
refund of assets paid to a urong person under
s. 295. An order under s. 295 of the Code of Civil
Procedure (Act XIV of 1882) refusing a decree-
holder's application for a rateable distribution of the
assets realized by a sale or otherwise in execution
of a decree is not an order " " in a proceeding other
than a suit " within the meaning of Art. 13 of the
Limitation Act (XV of 1877). On the 21st August
1885 the defendant attached, in execution of a
money-decree, certain immoveable property belong-
ing to his judgment-debtor. On the 18th January
1886, plaintiff, who held another decree against tho
same judgment-debtor, applied, under s. 295 of the
Code of Civil Procedure, for a rateable distribution
of the assets to be realized by the sale of the property
attached. On the 19tli March 1886 the attached

( 7023 )

DIGEST OF CASES

( r024 )

LIMITATION ACT (XV OP 1811)— contd.
Schedule II — contd.

Art. 13 — contd.

property was put up for sale in execution of the '
defendant's decree. The defendant was allowed to
buy the property at the sale and set off the purchase-
money against the amount due to him under the
decree under s. 294, and no money was therefore paid
into Court. On the 14th June 1886 the Court held
that, as no money had been paid into Court on
account of the sale, no further proceedings could
be taken on the plaintiff's application for a rateable
share of the assets, and his application was accord-
ingly rejected. Thereupon the plaintiff sued the
defendant to compel him to refund the assets
wrongly paid to him. The Court of first instance
decided in plaintiff's favour. The lower Appellate
Court rejected the plaintiff's claim as barred by Art.
13, Sch. II of the Limitation Act, on the ground that
the suit was not brought within one year from the
date of the Court's order refusing the plaintiff's
application under s. 295 of the Code of Civil Pro-
cedure : — Held, that the suit was not governed by
Art. 13 of the Limitation Act. The order made
under s. 295 of the Civil Procedure Code was no bar
to the suit, and a suit to set it aside was unnecessary.
Gowri Prasad Kundu v. Ram Ratan Sircar, I. L. R.
13 Calc. 159, , dissented from. Vishn'tj Bhikaji
Phadke v. Achut Jagannath Ghate

I. L, R. 15 Bom. 438

15.

Mortgage — Sale

by first mortgagee — Arrears of rent — Lien — Claim
hy puisne mortgagee on proceeds of sale. Certain land
was mortgaged to A with possession to secure the
re-payment of a loan of R2,000 and interest. It
was stipulated in the deed that the interest on the
debt should be paid out of the profits, and the
balance paid to the mortgagors. By an agree .nent
subsequently made, it was arranged that the
mortgagors should remain in possession and pay
rent to A. A obtained a decree for R2,009 and
arrears of rent and costs and for the sale of the land
in satisfaction of the amount decreed. The land
was sold for R2,855 in March 1881. In May 1881 B,
a puisne mortgagee, applied to the Court for pay-
ment to him of R500 of this sum, alleging that A was
entitled only to R2,000 and R280 costs, but not to
arrears of rent, in preference to his claim as second
mortgagee. The claim of B was rejected on the
27th May 1881 and the whole amount "paid out
to A. In February 1882 B (who had filed a suit on
the 23rd March 1881) obtained a decree upon his
mortgage. On the 23rd May 1884 B sued to recover
R510 paid to A on account of rent on the 27th
May 1881. Held, on second appeal, that the suit
was not barred by Art. 13 of the Limitation Act,
neither that Art. nor Art. 12 being applicable
to the case, that B was entitled to recover the
Bum claimed. Sivarama v. Subramanya

I. L. R. 9 Mad. 57

18.

Suit to recover

possession from asuccessfvl claimant under s. 246, Act
VIII of 1859. A suit brought, not to set aside an

LIMITATION" ACT (XV OF 1877)-C3n<d
Schedule II —contd.

Art. l^— contd.

order of release under s. 246 of Act VIII of 1859, bi
to recover possession from the successful claimant i
the property released, was not governed by the limi
ation prescribed by cl. 5, s. 1. Bhyrublai
Bhukut v. Abdool Hossein . 8 W. R. £

17.

Order of Jm

on claim to attached property — Summary decisio
Property being attached under a decree obtaine
before Act VIII of 1859, a third party claimed to
entitled as against the judgment-creditor under
bill of sale. The Judge enquired into his clain
found that the assignment was fraudulent, ai
ordered that the property should be sold under tl
decree. Held, that the order of the Judge was
summary decision of a Civil Court within s? 1, cl. .
and that a suit by the claimant for the recovery (
the property instituted after the expiratioa of a ye=
from the date of the order was barred by that claus'
Khyrut Ally v. Khurruck DhareeSixrh

Marsh. 5.1

18.

Suit to ht

property declared not liable to seizure in execution
a decree. The plaintiff sued to obtain a deer
declaring that the ancestral land possessed by t
family of the plaintiff was not liable to seizure ai
sale in satisfaction of an ex parte decree obtain
by the defendant in a suit against the yejamm '
the^plaintiff's family on the ground that the deci;
had been obtained collusively and fraudulently •
a debt alleged to have been contracted for U
benefit of the family. The decree against 1;
yejaman was passed on the 22nd June 1857, al
upon attachment of the family property 1!
plaintiffs made a claim, under s. 246 of the Gil
Procedure Code, alleging their independent rijc
to the property and resisting a sale. The claim vs
disallowed on the 18th October 1861, andanappl
from that decision was dismissed on the l.i
November 1861. The present suit was institul
on the 2nd February 1864. Held, that this was i'
a suit to which the hmitation provided by s. 246'
the Civil Code, or by cl. 5, s. 1 of Act XlVof 18:.
was applicable, and that the suit was not ban •
Ramanada Butt v. Bithee . . 4 Mad. '3
19. Claim, reje<>n

of — -Suit to recover possession of property sold. In
attachment of certain property, the plaintiff id
defendant preferred their respective claims ther >•
The plaintiff's claim was disallowed, but the Je-
fendant's claim was allowed. The plaintiff. ■" '
the lapse of a year from date of the order disall
his claim, sued to recover possession of th'
property. The defence was, that the suit ■
barred by lapse of time under cl. 5, s. I, Act tV
of 1859. - Held, that cl. 5, s. 1, Act XIV of 1859Ud
not apply to such a suit. Durgaram Ro' v.
Narsino i)EB 2 B. L. R. A. C. p^

s.c Doorgaeam Roy Nuro Singh Deb

11 W. E.84

( 7025 )

DIGEST OF CASES.

( 7026 )

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

Art. 13~contd.

20.

Suit to set ande

order releasing property from attachment — Irregular
uttachnient — Deduction of time when appeal was
pending. In 1852, K sued A and 31 to recover the
amount with interest of a bond executed by 31 (who
was .-I's general agent) in the name of H on the
ptTmission of the plaintiff for the purpose of paying
off the debts of A. The Principal Sudder Ameen
decreed the case against 31 with costs, and released
•1 from A"s claim. In appeal to the Sudder Court
-ne plaintiff obtained a decree with interest and
costs against A as well as against J/. In execution
A' prayed on 2nd December 1858 for the attachment
and sale of certain estates. A notice having been
ordered to issue, K represented that the judgment-
debtor was attempting to alienate her estates, and
prayed that orders might be passed to prevent
alienation of the estates mentioned in her appUca-
tion for execution. A process of attachment was
issued accordingly on 28th March 1859, but without
security being first demanded as prescribed in
Regulation VIII of 1825, s. 7. In September 1861,
one B A, who had objected to the attachment,
petitioned the Judge and obtained an order, dated
nth Seijtember 1861, releasing the attached pro-
perties as being his in virtue of a hibbanama from
A. and in his possession. From this order K
appealed, but the appeal was stinick off on 29th
November 1862. On review the first order was
upheld, but it was declared that this would not be a
bjir to a regular suit. She accordingly sued for a
reversal of the Judge's order for the cancelment of
the deed of gift as being collusive and for the sale of
the property in question as that of her judgment-
iebtor ^. The suit was decreed and an appeal pre-
ferred to the High Court. Held, that the order of
ilSth March 1859 was wrong in ordering attachment
■without first requiring security ; but the irregularity
lul not affect the jurisdiction of the Court or render
he attachment void. Hdd, also, that the plaintiff
lad a rightof appeal from the order of 14th Septem-
•er 1861, that the appeal was wrongly rejected on
?f>th November 1862, and it saved her from the
'lH»ration of the law of limitation while it was
ending, and as she brought her suit within a year
rem that time, she was within the period prescribed
'v Act XIV of 1859, s. 1, cl. 5. KhodaJamnissa
• Stevens .... 20 W. R. 433

,21. . Suit after release

^ I property wider s. 246, Civil Procedure Code,
|Vo9. Where a property is released from attach-
ment, and the person at whose instance attach-
jQent '^as made is not debarred by the order of
jelease from proceeding with his execution, his
uit IS virtually a suit for a declaration of richt, and
jot merely a suit for settingaside the order of release:
,nd the rule of limitation apphcable to his case is
jOt in s. 246 of Civil Procedure Code, which would
Uow one year, but in cl. 15, Sch. II of Act IX of
8il Matonginy Dassee v. Chowdhry Jun-
I'^JOY MuLucK . . . 25 W. R. 513

LIMITATION ACT (XV OF 1877)— conftf.
Schedule II — contd.

Art. IZ— contd.

22. — Suit to recover

attached property to which claim has been disallowed.
A person who has been unsuccessful in a proceeding
under s. 246 of Act VIII of 1859, and who sues to
recover the attached property from the purchaser at
the Court sale may be said to sue, not to set aside
the sale, but to set aside the order of the Court
under s. 246 and therefore the suit must
be brought within one year as provided in Art. 15
of the Limitation Act, 1871. The decision in Je«4
V. Hossain, I. L. R. 4 Bom. 23 note, qualified.
Venkapa v. Chenbasapa . I. Ij. B. 4 Bom. 21

23. • Suit to remove

attachment — Adverse possession. In a suit for a
partition of family property in the possession of the
plaintiff and defendants, part of the property was
attached at the instance of one of the defendants
in 1852, and the remainder of the property in 1864.
Nothing was done with regard to the first attach-
ment, but in 1865 a petition was presented by the
plaintiff praying for the removal of the attachments.
The petition was rejected and the plaintiff brought
this suit within one year from the date of the
rejection of his petition. The plaintiff and defend-
ants remained in possession notwithstanding the
attachments. Held, that the suit was not barred
by lapse of time. Maleaja alias Keishnama
Rajah v. Narayanasamy Rajah 4 Mad. 281

24. Suit to estab

lish title to property ordered to he sold in execution —
Suit to set aside smnmary order. The plaintiff's
property was ordered to be sold in execution of a
decree to which the plaintiff was not a party. The
plaintiff appeared and asked the Court to release
the property from attachment, but the Court
refused his application, under s. 246, Act VIII of
1859, and ordered the property to be sold. Held,
that a suit to establish the plaintiff's right to such
propei'tvwasnota suit to set aside a summary order
within Act IX of 1871, Sch. II, cl. 15. Koylash
Chttnder Paul Chowdhry v. Preonath Roy
Chowdhry I. L. R. 4 Calc. 610 : 3 C. L. R. 25

25. Civil Procedure

Codes (Act VIII of 1859, s. 246, and Act X of 1S77,
ss. 280, 281, and 282). V (defendant No. 1 ) obtained
a decree against IF and. in execution thereof, at-
tached certain immoveable property as belonging to
his judgment-debtor. The plaintiffs, who were IF's
five brothers, thereupon apphed for the removal of
the attachment under s. 246 of the (?ivil Procedure
Code (VIII of 1859), but their apjilication was re-
jected on the 24th July 1875, and the property was
sold by the Court to K (defendant No. 2) on the 16th
and 17th February 1-.876. The sale was confirmed
on the 18th March 1876. The plaintiffs brought
a suit on the 17th March 1877 against F and K
(the judgment-creditor and auction-purchaser),
alleging that the property was the joint ancestral
property of themselves and their brother W, and
was not liable to attachment and sale for his sepa-

( 7027 )

DIGEST OF CASES.

( 7028 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — cmtd.
. Art. 13 — cojitd.

LIMITATION ACT (XV OF 1817)— contd.
Schedule II— contd.

Art. 13 — contd.

rate debt. They prayed that the sale should be set
aside. The Subordinate Judge dismissed the suit
as barred by Art. 15, Sch. II of the Limitation Act
(IX of 1871). His order was reversed, on appeal,
by the District Judge, who held that Art. 14, Sch.
II of the Limitation Act, applied to the case. K
thereupon appealed to the High Court : — Held, that
Art. 15, and not Art. 14, of Sch. II of Act IX of
1871, apphed to the case, and that the suit was
barred. The intention of the Legislature in
passing s. 246 of the Civil Procedure Code (Act
VIII of 1859) was that the order made under
that section should be a final bar to the plaintLS's
right, unless such a suit as that section prescribed,
was brought to re-try the question of that right ;
and if on such action being brought, the Court
on the trial held that the plaintiff had estab-
lished his right, its ruling would amount to a
reversal of the order made under s. 246, and the
suit would fall within Art. 15 of Sch. II of the
Limitation Act (IX of 1871), which is substituted
for the limitation provided by the twelve
repealed words in s. 246 of Act VIII of 1859.
Settiappan v. Sarat Sing, 3 Mad. 220, followed.
Koylash Chunder Paid Chowdhry v. Preonath
Roy Chowdhry, I. L. R. 4 Cede. 610, referred to
and discussed. Krishnaji Vithal v. Bhaskar
Rangnath . . . I, L. R. 4 Bom. 611

26. Order decleiring

that Court has no jurisdiction. The period of
limitation prescribed by Art. 15, Sch. II, Art. IX of
1871, for a suit to set aside an order of a Civil Court,
does not apply where the order simply amounts to
a declaration that the Court considers it has no
jurisdicton to act in the proceeding befoie it.
BLeistodass Kundoo v. Ramkant Roy Chowdhry

I. L. R. 6 Calc. 142 : 7 C. L. R. 396

27. — — Suit to recover

property sold in execution— Civil Procedure Codes
(Act VIII of 1859, s. 246, and Act X of 1877, ss. 280,
281, and 282). Certain property, which the
plaintiff alleged to belong to her, was sold in execu-
tion of a decree obtained by the purchaser
of the property at the auction-sale against a third
party. The plaintiff put in a claim to the property
under s. 246 of Act VIII of 1859 which claim was
rejected on the 6th of September 1873. The
plaintiff, on the 10th of January 1878, brought a
suit to recover possession of the property sold; —
Held, that the suit was not barred by Art. 15, Sch.
II of Act IX of 1871, the suit not being one to set
aside a summary order within Ait. 15 of the gchedule
to that Act. Koylash Chunder Paul Chowdhry v.
Preonath Roy Chowdhry, I. L. R. 4 Calc. 610,
followed. LucHMi Nar4IN Singh v. Assrup Koer

I. L. R. 0 Calc. 4

28. Execution of

decree— Res judicata— Act VIII of 1859, s. 246—
Civil Piocednre Code [Act X of 1877), s. 278. In the
course of certain execution proceedings in execution

of a decree for arrears of rent, the decree-holder at-
tached a tenure belonging to the judgment-debtoi
who, pending the attachment, sold it to A on the
21st March 1869. A then applied, under s. 24(
of Act VIII of 1859, for an order to release the
tenure from attachment ; but the application \\a,i
dismissed, on the ground that the alienation hac
been made pending the attachment. In 1877 th
heirs and successors in title of the decree-holde
above-mentioned obtained another decree for arrea,
of rent against the same defendant, and in executio.
thereof again attached the tenure. A applied unde
s. 278 ot^the Code of Civil Procedure to have th
property released, but his application was rejects'
on the 3rd of May 1879. In a suit brought by ^ o
the 6th of May "l879 to establish his right to, an
confirm his possession of, the tenure, the lowe
Courts dismissed the suit on the ground that ]
ought to have been brought within one year froi
the 24th of March 1 869. On appeal to the Hig
Court -.—Held, that the suit was not barred b
limitation, nor as res judicata. Umesh Chuudi:
Roy r. Raj Btjllub Sen . I. L. R. 8 Calc. 27
10 C. L. B. 20

29. ^ Order substitv

ing one judgment -debtor for another — Sale or transf
of dena-powna. A, the proprietor of an indigo co
cern, which comprised a panti talukh, after moi
cfaging the entire concern to B, allowed the pat
talukh to be sold for arrears of rent under Fegul
tion VIII of 1819 ; C, the darpatn dar of t)
talukh, whose rights were thus extinguished, th
sued and obtained a decree for damages against .
After C had obtained this decree against A,
sold his equity of redemption in the entire mortgag
concern to B, and by this sale, all the dena ai
powna, or liabilities and outstanding of the co
cern, were transferred from A to B. C then, af<[
notice to B, obtained an order, by which B ■Wj
made the judgment-debtor in the place of A. _'
took no proceedings within one year to set asi
this order; but, after the lapse of three yea
upon C attempting to execute his decree, institut
the present suit to set aside the order, and for
injunction to restrain B from executing the deci
against him -.—Held, that B was barred by limr
tion from suing to set aside that order, but '
was entitled to an injunction restraining Cpemf
ally from executmg the decree against hii-

DHXXRONIDHrR SkN V. ACRA BaNK _ _ _ i

30.

I. L. R. 5 Calc. 86 : 4 C. L. B.

Civil Proced'-

Code (Act VIII of 1859), s. 269, Summary proce-
ings under — Neglect to set aside order passed in «'-
proceedings within ove year by purchaser at a Cof
sale— Suit to establish title to property by •«''
purchaser. At a Court sale held on the 15th I^<-
ember 1871 in execution of a decree, the plainti'S
deceased husband purchased a house, but neglec'i
to register his sale-certificate. In attempting

( 7029 )

DIGEST OF CASES.

{ 7030 )

IMITATION ACT (XV OF 1817)- contd.
Schedule II — contd.

. Art. 13 — concld.

cover possession he ^as obstructed by the defend-
nt who claimed the property as her own. Sum-
iBry procepdings under s. 260 of Act VIII of 1S59
ere thereupon^ instituted acjainst the defendant,
Qd the defendant's claim was upheld by an order
assed on the 7th November 1872. In the mean-
me the plaintiff's husband having died, plaintifiE
Ifd on the 31st March 187;? a regular suit to
:tablish her title. On the 8th July 1873, f^he
'.tained a second certificate, and registered it. The
ourt of first instance awarded her claim but on
ppealbvthe defendant the lov\er Appellate Court
'versedthat decree, «m the ground that, at the
istitution of the suit, plaintiff had not a reoistered
?rtificate cf sale. That decree was confirmed on
le 17th November 1879 on second appeal by the
[igh Court. On the 30th April 1880, plaintiff
rought this suit on the strength of her registered
-rtiflcate. The Court of first instance allowed her
laim. The defendant appealed, and the lower
.pjjellatc Court held her suit not maintainable,
m appeal by plaintiff to the High Court -.—Held,
infirniing the deciee of the lower Appellate Court,
lat plaintiff's suit was barred. The Subordinate
udge having, by his order of the 7th November
872, passed in the summary proceedings, disposed
[ the case on the ground that the property belonged
,) the defendant, the plaintiff was under an obliga-
on to displace that order by a suit instituted
ilhin one year from its date. Bai .Iamka v. Bai
;;hha . . . . I. L. R. 10 Bom. 604

Art. 14 (1871, Art. 16)—

i See Bengal Tenancy Act, s. 107.

I. L. R. 28 Calc. 676

iSee Bombay Land Revenue Act, s. 13.5.
I. L. R. 15 Bom. 424
See Chahkidaki Chakran Land, Set-
tlement OF I. L. B. 32 Calc. 1107
See Estates Partition Act (Bengal
Act VTII of 1876), s. 116.

I. L. R. 33 Calc. 693

See Record op Rights.

11 C. W. N. 48

1. — '■ Suit for land of

hich a pottah has been granted by Collector after
•marcntion — Suit to set aside official act. Plaintiff
:. 1877 claimed possession of land which had been
pmarcatedas poramboke in 1860, and of which a
-ttah had been granted to defendant in 1875 by the
iollector. Held, thsit this suit was not governed by
irt. 16, Sch. 11 of Act IX of 1871, as it was not
?ces.sarily a suit to set aside an official act. It
las governed by the 12 years' period of limitation
jinning from the date of "the grant by the Collector.
JRiSHNAMMA V. AcHAYY.^1. L. R. 2 Mad. 306

12. — Suit for declara-

i)n cf title — Suit to set aside an order of revenue
■horities—Lavd Registration Act {VII of 1876),

LIMITATION ACT (XV OF 1877)— conW.

Schedule II — contd.

Art, 14 — contd.

s. 89. The Civil Court has no power to set aside an
order passed under the Land Registration Act, and
when a prayer for such relief is contained in a plaint
which also asks for a declaration of right and title to,
and confirmation of possession in, property, such
prayer may be treated as mere surplusage. When
therefore a plaint was filed containing separate
prayers for the above relief, and ^\hcn the original
Court held that the main object of the suit was to
have certain orders made by the revenue authorities
set aside,and that the suit was accordingly governed
by Art. 14, Sch. II of the Limitation Act, and passed
a decree dismissing the suit as having been brought
more than a year after the date of such ordci-s : —
//eW, that such a decree was ^\rong ; that the suit
being one simply for the declaration ofthe plaintiffs
title in respect of the property in dispute. Art. 14
had no application to the case. Litchmon Sahai
Chowdhry v. Kanchun Ojhain

I. L. R. 10 Calc. 525

3. ■ Suit to set aside

order of Commissioner directing fayment of Govern-
ment revenue. A suit to set aside an order of a
Commissioner directing the plaintiff to pay Govern-
ment revenue at a certain rate was formerly held
to be governed by cl. 16 of s. 1 of the Act of
1859 ; it would now probably be governed by this
article. Kebul Ram v. Government

5. W. R. 47

4 — — Suit to set aside

order of Government officer — Order null and void.
Art. 14 of Sch. II of the Limitation Act with refer-
ence to suits to set aside orders of officers of
Government does not apply to a case where the
order is an absolute nullity. Bejoy Chand
Mahatab Bahadur v. Kristo Mohini Dasi

I. li. R. 21 Calc. 626

5 Khoti Settlement

Act {Bom. Act I of ISSO), ss. 20, 21, and 22— Act or
order of Settlement Officer— Dhara lands— Sutt for
a declaration that lands u'ere khoti lands — Jurisdic-
tion of Civil Court — Collector, poiver of — Adverse
possession — Cflw.s-e of action. A Survey Settlement
Officer decided in the year 1882 that certain lands
situate at the khoti village of Tadil. in the Ratna-
giri District, were dhara lands of Sand another, but
the entry in the survey register that they were dhara
lands was not made till 1889. In the meanwhile, f'
and others, who were the khots of the village, made
an application to the special Survey Officer to revise
the decision of the Settlement Officer of the year 1 882,
and the special Settlement Officer ha\nng rejected
this application in 1885, they brought the present
suit in 1887 aeainst S and others for a declaration
that the lands were their khoti lands. The Judge
dismissed the suit on the ground that the .Settlement
officer's decision being final under ss. 20 and 21 of
the Khoti Settlement Act (Bombay Act I of 1880)
and it having not been set aside within one j-ear

( 7031 )

DIGEST OF CASES.

( 7032 )

XIMITATION ACT (XV OP 1871)— contd.

Schedule II — contd.

Art. 14 — contd.

from its date, the suit was time-barred under Art.
14, Sch. II of the Limitation Act (XV of 1877) :—
Held, reversing the decree, that the claim was not
time-barred. Under ss. 20 and 21 of the Khoti
Settlement Act, it is the " decision " on the rival
claims of the parties which is open to reversal by the
Civil Court, and not the consequences of that
decision, which as provided by s. 22 are left to the
Collector himself to undo or modifj' in accordance
with the decision of the Civil Court. Held, further,
that s. 21 does not contemplate any "order"
being made by the Survey Officer between the
parties ; and even if framing the i-egister be regard-
ed as an " act "of the Survey Officer, s. 22 provides
for its being amended by the Collector himself, in
accordance with the decision of the Civil Court : —
Held, further, that although the defendants might
have paid only the assessment be ore 1878-79, their
adverse possession of the lands as dhara did not
begin to run against the plaintiffs until 1878-79,
when such a claim was actively advanced by the
defendants. The plaintiffs' cause of action arose
in 1882, when the Survey Officer determined that
the lands were dhara, and the present suit, which
was brought within six years to reverse that decision
was therefore in time. Faki Gulam Mohidin v.
Sajnak . . . I. L. B. 18 Bom. 244

6. Land Revenue

Code {Bom. Act V of 1879), ss. 37, 39, 135— Land
presumably the property of the plaintiff — Plaintiff in
uninterrupted possession — Revenue survey — Entry
of the land in the register as Government waste land —
Qrder of the Revenue Commissioner directing land
to bt given to defendant No. 2 — Plaintiff's disposses-
sion— Suit against Secretary of State and defendant
No. 2 — Nature of the Revenue Commissioner's
order— Setting aside of the order. A certain land
which the plaintiff alleged was his jDroperty and
was uninterruptedly in his possession till the 16th
November 1895 was at the introduction of the
revenue survey in 1882 entered in the register as
Government waste land. On the 12th November
1895, the Revenue Commissioner, on appeal against
the order ofthe Collector, ordered it to be given to
defendant No. 2 on his pajdng the assessment due
since the survey settlement. This order was com-
municated to the plaintiff on the 20th November
1895. On the lOth November 1895, the plaintiff
was ousted by the order of the Collector, and
defendant No. 2 was placed in possession. The
plaintiff thereupon, on the 15th November 1896,
filed the present suit in the District Court against the
Secretary of State for India as defendant No. 1 and
•defendant No. 2 prajing (i) to have set aside the
order passed by the Revenue Commissioner, (ii) to
have his right to the land established, and (iii) to
obtain possession with mesne profits. Defendants
contended that the suit was time-barred under Art.
14, Sch. II of the Limitation Act (XV of 1877), not
having been brought within one year from the 12th
2fovember 1895, the date of the Revenue Commis-

LIMITATION ACT (XV OF 1877)— conW.
Schedule U— contd. \

■ Art. 14 — contd.

sioner's order : — Held, that the plaintiff ecu
maintain a suit for the recovery of his land withoi
having the order of the 12th November 189.
passed by the Revenue Commissioner, set asid
Held, further, that the order of the Revenue Cori
missioner was not such an order as is contemplatf
by Art. 14, Sch. II of the Limitation Act (XV <
1877), and that in itself it gave no cause of actio
and needed no setting aside. The cause of acti:
was given by the act of the Collector dispossess!
the plaintiff"^ on the 16th November 1895, and i
the suit was brought within one year of that dat
it was in time. Sttrannanna Devappa Hegi:
v. Secretary of State for India

I. L. B. 24 Bom. 4J

7. Estates Partitii

Act (Beng. Act VIII of 1S76), ss. 116 and 150-
Right of suit — Suit for possession. A suit for po
session of land of which the owners have been di
possessed in pursuance of an order of the Collect
unders. 116 ofthe Estates Partition Act (Bengal A
VIII of 1876), will lie even though no suit is brougl
to set aside the Collector's order under s. 150. Ai
14 of Sch. II of the Limitation Act (XV of 1877) do
not bar such a suit. Laloo Sixgh r. PuR>
Chander Banerjee . I. L. B. 24 Calc. 14

Estates Partiii'

Act (Bengal Act VIII of 1876), ss. 116, 149 and 1
— Suit for possession. In a partition proceedi;
before the Collector, under the Estates Partitii
Act, R, a party to that proceeding, contended th
certain land measured as part of the estate und
partition was not part of that estate, but appertai
ed to his howla. The Revenue authorities inquir
into his contention, under s. 116 of the Act, a;
decided it against him. On a suit having be
brought by him, after the lapse of one year, foi
declaration that the disputed land was part of 1
hoiola, the defence was that the suit not havi
been brought within one j'ear from the date of t
order passed by the Revenue authorities, it w
barred by limitation. Held, that the fcuit wasj
barred. Laloo Singh v. Purna Chander Banetf
I. L. R. 24 Calc. 149, distinguished. ParBaI
Nath Dutt v. Rajmohun Dutt (1901)

I. L. B. 29 Calc. 8£
s.c. 6 C. W. IT. i

decree — Civil Procedure Code, ss. 230 et seq. — Si
held by Collector, but jifier wards set aside — Suit
auction-purchaser to have sale confirmed — Limitatic
In execution of a decree which had been transferr
to the Collector for execution under the provisio
of s. 320 of the Code of Ci\nl Procedure, certa
immoveable property was sold bv auction on t
22nd of September 1891. But the judgmer
dbtors applied to the Collector to have the sale s
aside, and, on the 30th October, 1891, the Collect
set aside the sale and ordered a fresh proclamati'
of sale to be issued. The order of the Collect'

( 7033

DIGEST OF CASES.

( 7034 )

[MITATION ACT (XV OF laily-contd.
Schedule II — contd.

Art. 14 — cotitd.

tting aside the sale was, on appeal, confirmed by
le Commissioner, on the 4th of May, 1892. After
16 setting aside of the sale, the judgment-debtors,
a the 14th of December, 1891, with the permission
• the Collector, mortgaged the bulk of property,
he mortgage-money was paid into Court in dis-
large of the decree, and satisfaction of the decree
asenteredup ; and, on the 21st of December, 1891,
10 execution case was struck off. On the 12th
f September, 1894, the auction-purchaser, who,

er the sale had been set aside, had withdrawn the
urchase-money paid in by her, brought a suit to
ave the sale in her favour confirmed : — Held, that,
lasmuch as the plaintiff 's claim involved the setting
side of the Collector 's order of the 30th of October,
891, by which the sale to the plaintiff had been set
side, the suit was barred by limitation, having
.'gard to Art. 14 of the second Schedule to Act XV
f 1877. Malkarjun v. Narhari, I. L. E. 25 Bom.
37, and Banke Lai v. Jagat Narain, I. L. JR. 22
II. 16S, referred to. Ayyasami v. Sumiya, I. L.
. S 3Iad. S2, and DebiC/ia ran V. Bari Bahu, All.
'eekly Notes (1S94) TA. held not to be of effect
nee the ruling of the Privy Council in Malkarjun
Narhari. MoH Lai v. Karrabuldin,!. L.B.25
'ik. 179, distinguished. Raghunath Prasad v.

Asiz Rasul (1902) . I. L. R. 24 All. 467

10.

Executive Gov-

nmtnt — Ultra' vires order — Nullify. Art. 14 of
h. II of the Limitation Act is applicable to

'ts or orders done in the exercise of powers legally
erciseable by the executive, subject to conditions

,e fulfilment of which is denied by the party- im-
gning the act or order, orinvested withno finahty
the empowering enactment. An order which is
tirely tdtra vires of the Executive Government is
nere nullity and no suit is necessary to set it aside.

LVANT RaMCHANDRA V. SECRETARY OF StATE

|K)5) . . . I. L. R. 29 Bom. 480

I'l. Estates Partition

t (Bengal Act VIII of 1876), s. 116— Suit for
Useasion. In a partition proceeding, a dispute
■')se as to whether certain plots of land were in-
' ded in the property to be partitioned or not. An
^uiry was made by a special Deputy Collector,
'lO made a report to the Collector holding the
I'tition proceedings. The Collector passed an
' ler on the 9th August 1893, under s. IIG of the
ilates Partition Act, directing that the partition
Ikeedings bo struck off. On the 19th January
J '7, the plaintiffs brought a suit for declaration of
'jir title to the said disputed plots of land and to
"lOver possession thereof.— On an objection by the
' endants that the suit, not having been brought
J hin one year from the date of the order of the
^jlector, was barred by limitation:— ^eW, that Art.
Jj Sch. II of the Limitation Act (XV of 1877) did
{ ' apply to the case, and that the suit was not so
•red. Parbati Nath Dutta v. Rajmohun Dutta,

LIMITATION ACT (XV QF 1877)— contd.
Schedule II — contd.

Art. 1^—concld.

I. L. R. 29 Calc. 367, distinguished. Raj Chandra
Roy v. Fazijuddin Hossein (1905)

I. li. R. 32 Calc. 7ia

12. ■ Gun jam and

Vizagapatam Agency Rules Act XXI V of 1^39, Rule
20 — High Court may interfere icken agent decides
wrongly on que-ition of limitation — Limitation Act
(XV of IS 77). Sch. II, Art. 14, does not apply when
Act complained of is a nullity. An erroneous
decision by an Agent acting under the Ganjam and
Vizagapatam Agency rides on a question of limita-
tion is a 'special ground ' which will authorise an
interference by the High Court under Rule 20 of
such rides. Art. 14, Sch. II of the Limitation Act,
does not apply to an act done by a Government
officer, when such act purports to be done in pur-
suance of an order, but is, in fact, owing to a
mistake, not so done. Such an actisa nuUity which
need not be set aside. Maharaja (jf Vizianaoram
V. SaTrtjcherla Somasekara Raju (190())

I. L. R. 30 Mad. 280

Arts. 14, 45 — Alluvial accretion — •

Settlement of khas mrhd land — Suit to set aside
an order refusing settlement — Reg. IX of lS2o.
A suit to set aside an order of the Commissioner
refusing to make a settlement of khas mehal land
with the plaintiff, who claimed settlement of it
as an accretion to his jote, is governed by Art. 45 of
Sch. II of the Limitation Act and not by Art. 14.
Abdul Kadir v. Hamdu Mian (190S)

12 C. W. N. 910

Art. 15 (1871, Art. 17 ; 1859, s. 1,

el. 4)-

1. —

Suit to set aside

transfer of land made by revenue author iti&i. A suit
to set aside a transfer of land made by the revenue
authorities for arrears of Government revenue comes
within the words of cl. 4, s. 1, Act XIV of 1859.
Chitro Narain' Singh Tekait v. Assjstant

COJIMISSIOXER OF THE SOXTHAL PeRGI^NXAHS

14 W. R. 203

2. — Suit to establish

right to hold kind rent-free. Where a person claiming
to hold land free of Government assessment was
compelled by the Collector to pay the same: — Held,
that, though the 12 years' period of hmitation
applied to a suit to estabhsh his right to hold the
land free, yet the hmitation of one year under s. 1,
cl. 4, of Act XIV of 1859 was applcable to the suit
so far as it sought to recover payments made.
Bhujaxg Mahadev v. Collector of Beloacm

11 Bom

Art. 16 (1871, Art. 18 ; 1859, s. 1,

cL 4)—

• Act XIV of 1859, S.J,

cl 4 — Suit for revenue. Cl. 4 of s. 1 of Act XIV
of 1859 is not apphcable where the revenue, for
recovery of a portion of which a suit is brought, was

( 7035 )

DIGEST OF CASES.

( 7036 )

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — co7itd.

-Art. 16 — concld.

a payment made to the Government on account of
a clear and admitted liability, the object being to
save the estate from sale. Plaintiff may be entitled
to recover from a co-sharer what he has paid to the
Government beyond his just share, but his case is
not governed by the 4th clause. CI. 16 allowing six
years appears rather to be applicable. Shadee
Lai.l v. Bhawanee . . . 2 N. "W. 52

Art. 17 (1871, Art. 19)^Suit for com-
pensation for land — Came of action. In a cause
decided under Act XIV of 1859 the cause of action
in a suit for compensation for land taken for public
purposes was held to arise from the time the
plaintiff was dispossessed, and not from the date
when his application for compensation was
rejected. Hills v. Magistrate of Nuddea

11 W. R. 1

This would not now be law.

Arts. 18, 120— Land taken under

Land Acquisition Act — Refusal by Collector to
give award — Possession taken by Government.
Land had been taken under the Land Acquisition
Act, possession having been taken by the Collector
before an award ^^as made. The Collector
subsequently refused to give an award, on the ground
that the land belonged to Government. More than
one year after the Collector's refusal to give an
award the present suit was instituted for a declara-
tion that the land belonged to the plaintiffs and for
recovery of jDossession or in the alternative for
damages for the WTongful refusal of the Collector
to give the award. The finding was that the land
was the plaintiff's ; but the plea of limitation was
raised -.—Held, that the suit was not barred by
limitation. The land had vested absolutely in
Government, and so plaintiffs were not entitled to
recover possession, but could only claim damages
for breach of a statutory duty on the Collector's
part. The suit contemplated by Art. 18 of the
Limitation Act is one for compensation for non-
completion and that article does not apply to a
case in which the land has vested in Government.
Art. 120, therefore, governed the suit. Mantha-
ravadi Venkayya v. The Secretary of State
(1904) . . . I. li. R. 27 Mad. 535

"Art. 19 (1871, Art. 21)-^

See False Imprisonment.

I. L. R. 9 Bom. 1
I. li. R. 30 Calc. 872

cl. 2)-

- Art. 23 (1871, Art. 25 ; 1859, s. 1,

Suit for mali-
cious proseciUion. The limitation of one year
prescribed by cl. 2, s. 1, for bringing a suit for
damages for injury caused to reputation by malicious
prosecution in a Criminal Court runs from the
date on which the plaintiff was discharged from

LIMITATION ACT (XV OP 1877)— con

Schedule 11— contd.
Art. 23— concld.

custody, and not from the date on which
criminal charge was preferred. Obedul Hoss
V. GoLTJCK Chunder . . 8 W. R. ■<

2. — Suit for dam

for malicious statement — Cause of action. In
action for damages for making a false and mallei
statement in consequence of which the Magisti
took proceedings in the course of which the plaint
house was searched, and he alleged he was ther^
injured in various ways, the alleged false staten
was found to have been made more than one y
previous to the suit, and there was nothing to si
that any of the resulting damage which wo
constitute a cause of action occurred within a 5
before the suit -.—Held, that the action was barred
s. 1, cl. 2, Act XIV of 1 859. The cause of action
not arise from the date of the plaintiff's discha
Obedul Hossein v. Goluck Chunder, 8 W. R.
distinguished. Harin^vrayan Maiti v. Ajod
Ram Shi . 1 B. L. R. S. N. 17 : 10 W. R. :

3. - — ■ • Malicious

secution — Termination of prosecution — Presenta>
of revision petition against acquittal — Commeficeii
of period of limitation. A suit for damages :
malicious prosecution was brought more than 1
year from the date of the plaintiff's acquittal, 1
within a year from the dismissal of a revision ] 1
tion which had been filed against the acquii
On its being contended that the period of in
tation should be calculated from the date of h
dismissal of the revision petition, as the proseciiD
was only then terminated within the meaninj; c
Art. 23 of Sch. II of the Limitation Act :—I'a
that time began to run from the date of the acot
tal. Quaere : Whether it would be so in a '.s
in which an appeal is preferred by Govemi n
against an acquittal. N^vrayya v. Seshayya
I. Ii. R. 23 Madi^

Art. 24 (1871, Art. 24 ; 1859, J

el. 2)—

■ Cause of action- '-'

for defamation. Held, that the cause of
in a suit for damages on account of 1 ■
tion of character, arises on the date of thep .
tion of the letter containing the defamatory ni
and that a suit not instituted within one
from that date is barred by cl. 2, s. 1, Act X ■
1859. Mahomed Imdadally v. Ameer Al\

2 Agi 41

Arts. 24, 2b— Arts. 23, 24, 25,''>-

Limitation — Suit to recover damages on oc""^
of injury caused by a false report made
police — Suit for damages for malicious pro<'
The defendant laid information at a
station against the plaintiff, alleging tli
plaintiff and several other persons •
the female apartments of the defci

( 7037 )

DIGEST OF CASES.

( 7038 )

LIMITATION ACT (XV OF 1877)— conid.

Schedule II — confd.
_J Arts. 24, 25— conoid.

broke open locks, plundered his goods, and caused
hurt to his wife. Thereupon an inquiry was made
by the pohce, with the result that the information
was found to be false. The defendant was prosecut-
ed under s. 182 of the Indian Penal Code, convicted,
and sentenced to six months' imprisonment. The
plaintiff thereafter sued to recover damages from
the defendant "as compensation on account of
mental distress and defamation." Held, that this
was not a suit for damages on account of malicious
orosecution, for no prosecution had been initiated ;
out it was a suit for compensation for libel or
slander, the limitation applicable to which was that
prescribed by Art. 24 or Art. 25 of the second Sched-
ule to Act XV of 1877. Austin v. Dowling, L. R. 5
C. P. 534 ; Yeats v. The Queen, L. R. Q. B. D.
64S, and Queen-Empress v. Bishcshar, I. L. R. 16
AH. 124, referred to. Ishei v. Muhammad Hadi
(1902) . . . . I. L. B. 24 All. 368

Art. 28 — Bengal Tenancy Act

{VIII of 1S85), ss. 121, 140— Suit for wrongful
distraint^Limitation Act {XV of 1877), Sch. II,
Arts. 2, 28, 29. The limitation applicable to
a suit for compensation for illegal distraint of
crops by the landlord is one year from the date
of the wrongful seizure. Art. 28 or 29, and not
Art. 2, of the 2nd Schedule to the Limitation
Act applies to such suits. Jagatjiban Nando
Roy v. Saeat Chandea Ghosh (1902)

7 C, W. N. 728
Art. 29 (1871, Art. 30 ; 1859, s. 1).

^-ee ante. Art. 28 . 7 C. W. H". 728

See post, Arts. 42 and 29.

J See Attachment before Judgment.

• I . L. B. 29 All. 615

' 1. -^ Wrongful seizure

of goods — Injury to personal property. Wrongful

(seizure of goods under process of law was held to be

not an "injury to personal property " within the

meaning of cl." 2, s. 1, Act XIV of 1859. Inder-

Ijhund v. Nundeeram Sing . . Cor. 3

! But was governed by cl. 16 of the same section.

|!^CSEEUTOOLLAH V. RoOP SONA BiBEE

\ 7 W. B. 499

( 2. Suit for damages

lOr dderUion of bullocks. Plaintiff's bullocks having
j)een seized in execution of a decree obtained by
lefendant against third parties, plaintiff put in a
jlaim and the bullocks were released on 15th
January 1874. On 15th January 1875 plaintiff
instituted an action for damages caused by the
(letention of the bullocks -.—Held, that the case fell
jnder Act IX of 1871, Sch. II, Art. 30, and that
jbe suit was barred by limitation. Ram Singh

ilOHAPATTUR V. BhOTTRO MaNJEE SonTHAL

' 24 W. B. 268

LIMITATION ACT (XV OF 1877;— confi.
Schedule II— contd.

Art. 29 -contd.

«*• Suit for money

taken in execution of a decree — Compensation —
Damages for loss of gain or interest upon money.
A suit to recover money wrongly taken under a
decree is a suit for compensation to which the
limitation of one year under Art. 29 of Act XV of
1877, Sch. II, applies. The same hmitation under
the same provision applies if, to the above demand,
a claim be added to recover damages for the loss of
gain or interest upon the money. Jagjivan
Javherdas v. Gulam Chaudhri

I. li. B. 8 Bom. 17

4. Mortgage — Pre-
sumption that person paying off a mortgage intends to
keep the security alive — Power of Court to order
refund of money wrongfully paid out of Court in
another suit. In 1861 B granted a lease of his
zamindari to A for 30 years, A undertaking to pay
off all debts then due by B. B died in 1882, and
his successor sued A and obtained a decree that on
payment of Rl,20,000 J should give up possession
of the zamindari. This sum having been paid into
Court, A lost possession of the zamindari. On
January 5th, 1875, A had mortgaged the whole
zamindari, which consisted of 22 villages, to M to
secure a loan of R 1,00,000 borrowed by A to pay
off the debts of B which A undertook to pay in 1861.
On June 27th, 1879, A being indebted to J/ in
the sum of R 1,78,000 paid M R 1,00,000 and under-
took to pay the balance out of the income of the
estate, M releasing the 22 villages from the mort-
gage of January 5th, 1875. On June 28th, 1879,
A executed a mortgage of the 22 villages to L to
secure repayment of R 1,30,000. Of this sum,
RI,00,000 was borrowed to pay M, and R30,000 was
a prior debt due by A to L. Of the R 1,00,000
paid to M, R27,000 was specially applied to dis-
charge so much of the charge created by the mort-
gage of January 5th, 1875. On January 30th, 1875,
A borrowed from iS' R43,000 and mortgaged to her 10
of the 22 villages of the zamindari. In the suit
brought by .B's successor against A to recover the
zamindari L was a part}', but S was not. In that
suit L obtained an order for payment of R 1,00,000
of the sum paid into Court by the zamindar. In
a suit brought in 1885 by S against L to have
her debt declared a first charge on the money paid
into Court by the zamindar it was contended by L
that S coiald have no decree for repayment of this
sum, and that, if the money was wrongly paid
under the order of the Court to L, it was wrong-
fully seized within the meaning of Art. 29 of Sch.
II of the Limitation Act -.—Held, that the Court had
power to order a refund, and that Art. 29 of Sch.
11 of the Limitation Act was not applicable. Rupa-
bhai v. Audimulam . I. L. B. 11 Mad. 345

5. Suit for money

wrongly taken out in execution — Bengal Regulation
VIII of 1819 — Pattii taluk. A suit to recover the
surplus proceeds of a sale held under Bengal

( 7039 )

DIGEST OF CASES.

( 7040

LIMrrATION ACT (XV OF 1811) -contd.

Schedule II — contd.
Art. 29— contd.

Regulation VIII of 1819, wrongfully taken out by
the defendant in execution of a decree against a
third party, does not come under Art. 29, Sch.
II, of the Limitation Act. Jagjivan Javherdan v.
Gulam J Hani Chaudhri, I. L. E. S Bom. 17,
dissented from. Lakshmi Pbiya Chowdhueani
V. Rama Kanta Shaha (1902)

I. L. R. 30 Cale. 440
S.C. 7 C. W. K". 520

6. Civil Procedure Code

{Act XIV of 1882)— Attachment— Causing Court-
seal to he affixed on door of icarehouse — " Actual
seizure." A judgment-creditor obtained a warrant
of attachment, which was executed by a ffixing it to
the outer door of a warehouse in which goods
belonging to his judgment-debtors were stored.
The door was not broken open, nor was physical
possession taken of the goods inside : — Held, that
this, in effect, was actual seizure within the mean-
ing of s. 269 of the Code of Civil Procedure, and
that the suit was, in consequence, barred under
Art. 29 of Sch. II to the Limitation Act. Mfltan
Chand Kanyalal v. Bank of Madras (1904)

I. L. B. 27 Mad. 346

7. Arts. 29, 36 — Suit for damages

— Fictitious distress — Standing crops — Immoveable
property. The defendants, under fraudulent and
fictitious proceedings of distraint between a ficti-
tious landlord and a fictitious tenant, seized stand-
ing crops belonging to the plaintiff : — Beld,
that a suit for damages for the crops so seized
not being specially provided for in the Act, is
governed by Art. 3(3 of Sch. II of the Limitation
Act (XV of 1877). Standing crops are immoveable
property within the meaning of the Limitation Act.
Hari Charan Fadikar v. Hari Kar (1905)

I. L. E. 32 Calc. 459
s.c. 9 C. W. N. 376

Arts. 29, 49, 62, 120— Suit to

recover proceeds of sale of moveable property
wrongfully attached and sold, governed by Art.
29 or 49 of Sch. II. A, B and C brought a suit
against D and on the 10th December 1899 at-
tached before judgment certain paddy. E put in a
claim petition in respect of the paddj^ which was dis-
missed on 8th March 1900. E then brought a suit
under s. 283 of the Code of Civil Procedure on 26th
March 1900 against A, B and C for a declaration
of his title to the attached property and his title
was finally declared on appeal on 7th February 1903.
In the meanwhile the attached property was sold
and on 15th May 1900 the proceeds were distributed
between A, B, C and also F, who claimed a rateable
distribution. In a suit brought by E on 1st June
1903, against A, B,C and F for a refund of the
sale-proceeds : — Held, (Sankaran-Nair, J., dis-
senting), that hmitation began to run from the
date of the wrongful seizure ; that the suit for pur-
poses of limitation fell within Art. 29 or 49 of
Sch. II of the Limitation Act and that it was accord-

IiIMITATION" ACT (XV OF 1811)— contd.

Schedule 11— contd.
Art. 29— concld.

ingly barred by limitation. Per Sankarak-Nai
J- — The suit was not barred, the Article wliii
applied was either Art. 62 or 120 of the secoi
Schedule to the Limitation Act. The wrong coi
plained of was the payment to the defendants of t'
sale-proceeds, to winch the plaintiff was entitle
Art. 29 did not apply, because so long as the pr
perty remained in the custody of the Court, it w,
not lost and plaintiff could not claim any compens
tion for its loss. The loss of the property was no'
necessary consequence of the attachment, as 1
Civil Procedure Code contains provisions, whi
enable the party to establish his right and recov
the property attached. Art. 29 only applied wh
the loss complained of was directly due to t
seizure. Art. 49 did not apply as the suit was n
for any specific moveable property and the defen
ants had not wrongfully taken, injured or detain^
such property. Per Sir Arnold White, C. J. — A
29 of the second Schedule, which is specific in i
terms, applied to the suit and not the geneii
provisions of Art. 62 or 120. Art. 29 should not
construed as limited to claims for consequent,
damages and not applicable to cases, where t
plaintiff seeks only to recover the value of the p?
perty seized or the sale-proceeds, if the propei
had been sold. The provisions of s. 283 of the Coc,
by which a claimant may establish his right
property attached, cannot have the effect of po-
poning the time, when limitation begins to run or:
suspending time, when limitation has begim to n-
Per PiNHEY, J. — The cause of action is the origiil
wrongful seizure and Art. 29 or 49 appHes. !■
time spent in proceedings under s. 283 of the Cc;
of Civil Procedure cannot be excluded in computi;
the period of limitation. Damarajti NarasisIjI.
Rao v. Thadinada Gangarajit (1908) i

I. L. R. 31 Mad. 41

Art. 30 (1871, Art. 36) -

Suit for comp-

sation for value of goods short delivered — Suit '
breach of contract. The defendants were ownerst
a fleet of steamships plpng periodically along "-
coast of British India by which they undertook*-
convey for freight parcels of goods for all pers-^
indifferently from and to specified ports. In a i^
against the defendants for compensation for r
value of goods short, delivered : — Held, that cl. fr
Sch. II of the Limitation Act, would apply to *
defendants ; but that, as this suit was for breac.;=
of the contracts to dehver, it was governed by-
115. Semble .- Cl. 30, Sch. II of the Limitation i-
appHes to suits for compensatio n for loss or dam*
to goods arising from malfeasance,''misfeasance r
nonfeasance independent of contract. BbitP
India Steam Navigation Company v. Mahamm^
EsACK & Co. . . .1. li. K. 3 Mad. W

2. . Action agaij

railway company for loss of goods. An actli

( 7041 )

DIGEST OF CASES.

( 7042 J

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 30 — contd.

against a railway company for loss of goods, when
there is no contract, is governed by Sch. II, cl. 30,
of the Limita,tion Act. B. I. S. N. Co. v. Mahom-
med Esack, I. L. R. 3 Mad. 107, followed. Kaltj
Ram Maioraj v. Madras Railway Company

I. L. R. 3 Mad. 240

goods

Suit for vfiliie of

carried by railway cotnpany, and lost — Railways
Act (IV of l-^^'-'), ■•>'• 11 — Claim for compensation
'or loss of goods. In January 1890, a box contain-
ing rupees was delivered by the plaintiffs to the
defendant company in Bombay to be carried to
Saugor. From the evidence it appeared that the
plaintiffs did not intend to insure the box. The box
was taken to the booking office at the station, and
the parcel clerk asked what it contained, and was
told that it contained coin, and he learned casually
that the amount was R6,000. The clerk charged
R 18-1-0 for the box, which was the " treasure rate "
for caniagc. This sum was paid, and the box was
duly despatched, but was lost or stolen in the course
of transit. The plaintiffs sued to recover the R(3,000.
The defendants contended that having regard to the
provisions of s. 11 of Act IV of 1879, they were not
liable, inasmuch as (i) the contents of the box had
not been duly disclosed, nor (ii) had an increased
charge been paid. The plaintiffs obtained a decree
in the lower Court. On appeal, held, (reversing the
decree) that the defendant company was not liable.
Per Bayley, J. — That the claim of the plaintiffs
was one against the defendants for compensation
for losing goods, and fell within Art. 30, Sch. II of
the Limitation Act (XV of 1877), and that, as this
suit was not brought until after the expiration of
tvo years from the date of the loss, it was barred
jy limitation. Great Indian Peninsula Rail-
way Co. V. Raisett Chandmull

I. Ii. R. 19 Bom. 165
Reversing on appeal, Raisett Chandmull v.
|3reat Indian Peninsula Railway Co.
i I. Ii. E. 17 Bom. 723

4- Carrier by rail-

'^y — Loss — Non-delivery of goods — Onus of
\->roof. Five hundred and sixty-three bags of grain
vere made over to the defendants at Cawnpore and
S'agpur for carriage to Sholapur. All that was
^)roved that the defendants delivered to the plaintiff,
he owner of the grain, 512 bags only, having pre-
'Jously obtained from his agent receipts for the fuU
jiuinber as arrived at Sholapur. In a suit by the
ilaintiff to recover the price of the bags not deli-
jered, brought after more than two, but within
jhree, years of the time when the rest of the goods
■•ere dehvered, the defendants claimed that the suit
|*-as barred by the provisions of Art. 30 of Sch. II

f .Act XV of 1877, as not having been brought
/ithkn two years of the time " " when the loss
Iccurred:"— //cW, that mere non-delivery of the
;ag8 was no proof of their loss, the onus of proving

VOL. III.

LIMITATION ACT (XV OF 1877)-

Schedule 11— contd.

contdt

- Art. 30— coTicW.

which as an afiBrmative fact lay on the defendants
before they could claim the benefit of the special
limitation of two years provided in Art. 30 of Sch.
II of Act XV of 1877 ; and that the suit, there-
fore, was in time. Mohansixg Chawan v. Conder
I. L. R. 7 Bom. 478

5. and Art. 115—5(7? of lading-
Contract, breach of, far delivery of goods —
Onus of proof of loss of goods. Where a plaintiff
brings a suit for breach of contract for non-delivery
of goods under a bill of lading, it is not open to the
defendants, after having denied receipt of the goods,
to set up, or for the Court, after finding that the
goods had been shipped but not delivered, to assume,
without evidence, that the goods were lost, in order
to bring the case within Art. 30, Sch. II of the
Limitation Act of 1877. Per Garth, C.J. — Semble :
Where a plaintiff sues for breach of contract and
proves his case, the three years' limitation would be
applicable, although the defendants were to prove
that the breach odcurred in consequence of some
wrongful act of theirs, to which the shorter limita-
tion would apply. Mohansing Chawan v. Conder,
I. L. R. 7 Bom. 478, and British India Steam
Navigation Company v. Mahammed Esack, I. L. R.
3 Mad. 107, approved. Danmull v. British
India Steam Navigation Company

I. Ii. R. 12 Calc. 477
Art. 31—

See Bill of Lading.

I. Ii. R. 26 Bom. 562

— As ameiuled by Act X

of 1899, s. 3 — Currier — Failure to deliver goods — Suit
for compensation— Limitation. A suit against a
carrier for compensation in respect of goods sent
through such carrier and not delivered is governed
by Art. 31 of Sch. II of the Limitation Act as
amended by s. 3 of Act X of 1899, and not by Art.
115. Haji Ajam Goolam Hossein v. Bombay and
Persia t^tearn Navigation Company, 1. L. R. 26
Bom. 562, followed. India Gener.al Navigation
AND Railway Company, Ltd. v. Nanda Lal
Banik (1909) . . 13 C. W. N 861

1. Art. 32 — Suit for the removal of

trees — Civil and Revenue Courts — Act XII of 1881,
s. 93 (6). Held, that a suit by a landholder for the
removal of certain trees planted by the defendants
upon land held by them as the plaintiff's occupancy-
tenants was governed by Art. 32, Sch. II of the
Limitation Act (XV of 1877). Raj Bahadur v.
Birmha Singh, I. L. R. 3 All. A':> ; Amrit Lal v.
Balbir, I. L. R. 6 All. 68 ; and Kedarnolh Nag v.
Khetterpaul Sritirutno, I. L. R. 6 Calc. 341,
referred to. Gangadhar v. Zahurriya

I. Ii. R. 8 AIL 44

Suit for removal

of trees. A suit by a zamindar for removal of trees
planted in certain waste land of his village by persons
who had no right to plant them, is governed by Art,

10 p

( 7043 )

DlGEbT OF CASES.

( 704i

LIMITATION ACT (XV OF 1311)— contd.

Schedule 11— contd.
^ Art. 32— conc/d.

120, Sch. II of the Limitation Act, and not by Art.
32, Sch. II of the Act. Where a defendant having a
right to use property for a specified purpose perverts
it^to other purposes, and a suit has to be instituted
for any relief in respect of any injurious con-
sequences arising from such perversion, such a suit
wiU be governed by Art. 32, Sch. II of the Limit-
ation Act. Gangadhar v. Zahurriya, I. L. R.
8 AU. 416, distinguished. Musharaf Ali v. Ift-
KHAR HusAm . . I. L. B. 10 All. 634

Bengal Tenancy

Act (VIII of 188-5), s. 25, cl. la), and .s. 155— Suit for
ejectment and removal of trees — Limitation Act {XV
of 1877\ Sch. II, Art. 120. Art. 32 of Sch. II of
the Limitation Act (XV of 1877) applies to a suit
brought under cl. (a) of s. 25 and s. 155 of the Bengal
Tenancy Act (VIII of 1885) for the ejectment of a
tenant and removal of trees planted by him on land
leased out for agricultural purposes. Art. 120 does
not apply to such a case. Kedarnath Nag v. Khet-
turpaid Sritirutno, I. L. R. 6 Calc. 341, and Gun&ih
Dass V. Gondour Koormi, I. L. R. 9 Calc. 147,
distinguished. Soman Gope v. Kaghubtr Ojha
^ I. li. B. 24 Calc. 160

1 C. W. N. 223

4_ Suit far removal

of trees from tenant's holding — N.-W. P. Rent Act
(XII of 1881 ), s. 93. Held, that a suit by zamindars
for the removal of trees planted by a tenant on his
cultivatory holding was governed "by the limitation
prescribed"' in Art. 32 of Sch. II of the Limitation
Act, 1877. Gangadhar v. Zahurriya, I. L. R. 8 All.
446. and Musharaf Ali v. Iftkhar Humin, I. L. R.
10 All. 634, referred to. Jai Kishen v. Ram Lal

I. L. B. 20 All. 519

Bengal Tenancy

Act {VIII of 1885), ss. 25 and 155 — Suit to compel
ihe defendant to fill up a tank and to pay compensa-
tion, or in ihe alternntive for khas possession — Limit-
ation Ad, Sch. II, Arts. 120 and 143. In a suit
brought by a landlord against a tenant where the
primary relief sought was a mandatory injunc-
tion directing the defendant to fill up a tank
■excavated by him in contravention of the terms of
the tenancy and to pay damages to the plaintiff for
his wrongful act, and where the secondary relief
sought was ejectment, the defence (inter alia) was
that the suit was barred by limitation, inasmuch as
it was brought more than two years after the ex-
cavation of the tank. Held, that Art. 32 of Sch.
II of the Limitation Act (XV of 1877) apphed to the
<5ase and the suit was barred by limitation.
Sonian Gope v. Raghubir Ojha, I. L. R. 24 Calc.
160, and Gangadhar v. Zahurriya, I. L. R. 8 All.
446, approved. Sharoop Dass Moxdal v. Jog-
GESSUR Roy Chowdhry . I. Ij. B. 26 Calc. 564

Sakoop Das Mondol v. Jogeshur Pal Chow-
DHBY 3C.W.M-.464

LIMITATION ACT (XV OP 1877)— cojud.

Schedule 11— contd,
Art. 34 (1871, Art. 41)—

Suit for recovery of

person of wife — Suits under Act XIV of 1859.
Suits for the recovery of a wife's person were, under
the Act of 1859, held to be governed by cl. 16 of
s. 1 of that Act. Bhugna v. Gungooa

2 Agra 170

Art. 35—

See Restitution of Conjugal Rights.
I. L. B. 28 Calc. 37

Suit for posse.isicm

of wife making wife defendant — R&stitation of conjugal
rights — Demand and refusal — Continuing cause of
action — Limitation Act (XV of 1877), s. 23. Where
a husband sued to recover possession of his wife
making the wife herself the defendant to the suit : —
Hell, that it was in substance a suit for the res-
titution of conjugal rights, and Art. 35 of the Limi-
tation Act (XV of 1877) applied. The demand and
refusal, which form the starting point for limitation
under Art. 35, are a demand by the husband and
refusal by the wife (or vice ve.rsd) being of full age.
A positive refusal on the part of the wife to return
to her husband is not essential to the husband's
cause of action. Qumre : Whether in case of a' re-
fusal by a wife of full age to a ,demand made by
her husband, that she should return to him, a suit
by him for her recovery is barred under Art. 35 of
Sch. II of the Limitation Act or falls within the
purview of s. 23 as based on a continuing cause of
action. Fakirgauda v. Gangi

I. L. B. 23 Bom. 807

2. Husband a7id wif<

— Parsis — Suit for restitution of conjugal right:
—Limitation Act (XV of 1877), s. 23, Sch. II, Art
35 — Parsi Marriage and Divorce Act {XV of 1865)
A suit under the Parsi Marriage and Divorce Ac
(XV of 1865), by a wife for the restitution of he;
conjugal rights, is barred by the lapse of time wher
restitution has been demanded by her and refusec
by the husband, being of fuU age and sound mind
more than two years prior to the commencement o
the suit. Dhanjibhoy Bomanji v. Hiraba
(1901) . . . . I. L. B. 25 Bom. 64<

3_ Applicabilil

to Hindus — Suit.i for restitution of conjugal rights-
Starting point of limitation for. A suit brough
by a Hindu or Mahomedan husband against hi
wife for restitution of conjugal rights is barre;
under Art. 35, Sch. II of the Limtation Act, i
brought more than two years after the time when h
demanded restitution and was refused. Dhanj'
bhoy Bornanji v. Hirobai, I. L. R. 25 Bom. 644, 64f
followed. Binda v. Kaunsilia, I. L. B- 13 Al
126, dissented from. Saravanai PERrMALPiLi.'
V. PoovAYi (1905) . L L. B. 28 Mad, 43',

Art. 36 (1871, Art. 40)— I

See Hindu Law— Endowment— DealinI
WITH, AND Management of. Endow
MENT . . . 5 C.W.N. 27

( 7045 )

DIGEST OF CASES.

( 7046 }

LIMITATION ACT (XV OF 1877)— conW.

Schedule U—contd.

Art. 36— cowW.

L and Art. 23 — False com-

flaint to Magistrate — Attachment and detention of
goods — Action for damages. On the 26th of July
1878, A complained to the Magistrate that B com-
mitted theft of his grain. The Magistrate, of his
own motion, attached the'grain on the 10th of August
1878, pending inquiry into the complaint, then pro-
ceeded with the inquiry, and dismissed the com-
plaint, but continued the attachment pending the
decision of the Civil Court to whch he referred the
parties. A in 1879 brought a suit against B to
establish his title to the grain, which was finally
rejected on the 21st of June, 1880, and B recovered
his grain on the 30th of September, 1880, })ut in a
damaged condition. B, on the 13th of November,
1881, sued A for damages for wrongful detention
of his grain, and its consequent deterioration in
quality and value : — -Held, that the date of the
complaint was the date of the wrong, and limitation
ran from that date, or, at the latest, from the date
of the attachment, and that S's suit was therefore
barred, whether the period applicable was one year
under Art. 23, or two years under Art. 36, of Sch.
II of Act XV of 1877. MuDViRAPA Kulkar^ti
V. Fakirapa Kexardi . I. Ij. R. 7 Bom. 427
2. Suit to recover

LIMITATION ACT (XV OF 1877)— conid.
Schedule II — contd.

Art. Z6— contd.

money paid into Court, hut afterwards recovered from
third -person in execidion of decree. A suit to
recover money paid by defendant into Court which
was payable to the plaintiif and which was after-
wards recovered by the defendant in the execution
)f a decree against a third person under an order "of
;he Court executing tlie decree, was a suit sub-
stantially for damages to which Art. 26, Sch. II of
\ct IX of 1871, applied, and was barred, the cause
!)f action having arisen at the date of the taking
')y the defendant of the money claimed. Debi
|3as v. Nur Ahmad . . 7 N. W. 174 l

3. Suit to set aside \

ale or for compensation — Boundaries erroneously i
^'escribed in sale proclamation — " Falsa demons- \
ratio.'' On the 17th November 1877, a certain
liece of land was sold within the boundaries of I
I'hich, as described in the proclamation, another I
1 iece of land was included. The land was sold in
secution of a decree obtained by the first defend- -
;:it against defendants 2, 3, and ^ 4, and was
iirchased by the plaintiff. The second piece of j
md was sold on the following day and purchased j
7 defendant No. 5. On 28th "November, the I
laintiff applied to have the sale set aside and his !
loney refunded unless he was put in possession of i
[1 the land included in the boundaries mentioned
|i the proclamation, but his apphcation was refused
id the sale confirmed on 20th July 1878. In a
lit for possession of all the land or for return of his
lirchase-money with interest, it was contended,
j the Courts below and on second appeal, that the
aintiff was, at any rate, entitled to damages or
mpensation because of the land as defined by the

survey number proving to be of less acreage than
that included in the boundaries, and the lower Court
had held such a claim as barred also under Art. 36,
Sch. II of the Limitation Act (XV of 1877) -.—Held,
that the suit, regarded as one for compensation, was
not barred, as three yea^ra had not elapsed since the
confirmation of the sale when the suit was brought
— Art. 36 applying only to suits for compensation
for tortious acts independent of contract. But the
claim for compensation was not maintainable, as the
property offered for sale was sufficiently identified
by tlie description as " Survey No. 294, Pot No. 3,
containing 24| gunthas," and the statement of
boundaries, so far as it was inaccurate, might be
properly regarded as " falsa demonstratio.'"
Mahomed Sayad Phaki v. Navroji Balabhai
I. L. R. 10 Bom. 214
4. . — and Art. lib—Ship ping-
Collision — Suit for damages for loss of ship by
collision — Limitation in action of tort. A suit to
recover damages for the loss of a ship caused by
collision at sea is an action of tort founded upon the
negligence of the defendant or his servants in the
management of his vessel, and must be brought
within two years under the provisions of Art. 36 of
Sch. II of the Limitation Act (XV of 1877). From
the provisions of Arts. 36 and 115 of Sch. II of
the Limitation Act (XV of 1877), the intention of
the Act appears to be that not more than two
years should be allowed for bringing a suit found-
ed on tort, except in certain well-defined parti-
cular instances. Essoo Bhayaji v. Steamship
" Savitri" . . . I. li. R. 11 Bom. 133

5. Suit for damages

for misappropriation of crops — Limitation Act {XV
of 1S77), Sch. II, Arts. 39, 4S, 49, and 109. In a suit
for damages for misappropriation of paddy grown
on plaintiffs' land, on the allegation that the defend-
ant had wrongfully and forcibly reaped and mis-
appropriated the crops, defendants pleaded limit-
ation of two vcars under Art. 36 of Sch. II of the
Limitation Act (XV of 1877) -.—Held, by NoRRisand
Ghose, JJ. (Rampini, J., dissenting), that the
suit was not barred by limitation under Art. 36.
i/eW.by NoRRis, J. (without expressing any opinion
on the applicability or otherwise of Arts. 39, 49,
and 109), that all the condtions existed in this
case to bring it within Art. 48 of Sch. II of the
Limitation Act. Essoo Bhayaji v. Steamship
''Savitri," I. L.B. 11 Bom^ 133, referred to.
Held, by Ghose, ./. — Regarding the suit as one
for compensation for the wrongful act on the part
of the defendants in cutting the crops on the
plaintiff's ground. Art. 39 would save a portion
of the plaintiffs' claim from being barred by
limitation. If, however, it is regarded simply
as a suit for damages for carrying away and
misappropriating the crops, the case would fall
under Art. 49. Pandah Gazi v. Jenmiddi. I. L.
R. 4 Calc. 666, dissented from. Puddohchau

10 p 2

( 7047 )

DIGEST OF CASES.

( 7048 )

LIMITATION ACT (XV OF 1877)-
Sehedule II — contd.

zontd.

— Art. 26— contd.

Pardan v. Baidyanath Maity, Rule 381 of 1894,
decided, 22nd August 1894, followed. Hdd, by
Rampini, J.— None of the Arts. 39, 49, and 109
applied to this case, and the suit was barred by
the provision o Art. 36. Surat Lall Mondal v.
Umar Haji . . . I. L. B. 22 Calc. 877

6. Suit for damages

for cutting and carrying away crops — Act XV of
1S77, Sch. II, Arts. 39, 40, 49 and 109. In a suit for
damages for cutting and carrying away crops : —
Hdd, by the Full Bench (Rampini, J., dissenting),
that such suit does not come within the terms of
Art. 36 of Sch. II of the Limitation Act {XV of
1877). Per Maclean, C.J. (Trevelyan, J., con-
curring)— Assuming that the case does not come
within the terms of Art. 39, the case is governed
by Alt. 49. The crops, though immoveable in
the first place, become specific moveable property
when severed, and the fact that the severance was
a wrongful act, does not make any difference. PeT
Macpherson, J. — The case is governed by Art.
49 or 48, as the crops, after they had been
cut, come under the description of specific
moveable property. Possibly also the case might
be brought under Art. 109, if it is not brought under
Art. 39." Per Ghose, J.— Art. 49 applied to this
case. Surat Lall Mondal v. Umar Haji, I. L. R.
22 Cede. 877, followed. Per Rampini, J. {dissen-
tiente) — The suit as framed not being one for
compensation for trespass. Art. 39 does not
apply. Art. 48 or 49 also does not apply,
as they deal with property which is a6 initio move-
able and cannot be held applicable unless the first
wrongful act, viz., the conversion of the immove-
able into moveable property, be disregarded. Art.
109 also does not apply, as it referred to a case in
which possession of immoveable property was
withheld. Art. 36 therefore applied to the case.
Essoo Bhayaji v. SteamsJiiji " Savifri," I. L. R.
11 Bom. 133, referred to. Pandah Gazi v. Jennudi,
I. L. R. 4 Calc. 666, dissented from by Trevelyan,
J. Mangun Jha v. Dolhin Gttlab Koer

I. li. R. 25 Calc. 692
2 C. W. N. 265

7. Proceeding under

Companies Act ( VI of 1882), s. 241 — Compensation
against directors. The special proceeding provided
for by s. 214 of Act VI of 1882 is not subject to the
limitation prescribed by Art. 36 of Sch. II of the
Limitation Act. Connell v. Himalaya Bank

I. Ii. R. 18 AIL 12

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 36— contd.

Application by

liquidator for money improperly distributed to share-
holders. An application was made in 1894 under
the Companies Act of 1882, s. 214, by an official
liquidator appointed in 1891, praying that the
directors of the company in liquidation be ordered
to pay over to him a sum of money which had been
improperly distributed among the shareholders :
—Held, that Art. 36 of the Limitation Act was not

applicable, and that the application was not barred

b\^ limitation. Ramasami v. Streeramultj Chetti

I. L. R. 19 Mad. 149

9. Chairman of

Municipal Council — Principal and agent — Liability

for embezzlement by manager. During the tenure

of his ofiice by the Chairman of a Municipal Council

the manager embezzled sums of monej'. On the

Council, within three years, but more than two

years thereafter, suing its late chairman to recover

I "the amount lost by reason of the embezzlement on

I the ground that he was liable as its agent -—Held,

, that the relation of principal and agent did not

, exist, and that therefore Arts. 89 and 90 of Sch.

I II to the Limitation Act did not apply ; that the

I case was governed b}' Art. 30, and that the suit

was therefore barred by limitation. Srinivasa

Ayyangar v. Municipal Council of Karur

I. L. R. 22 Mad. 342

I 10. Fictitious land'

i lord and tenant — Distraint— Removal of crop — Suit

• for damages — Trespass — Conversion. Where it

was found that the defendant had set up

j a fictitious landlord and a fictitious tenant

j in respect of the plaintiff's holding, and having

j obtained a proceess for distraint from

I Court, caused the standing crops on the hold-

1 ing to be distrained and subsequently cut and

removed them : — Held {per Ramtisi, A.C.J. , and

Geidt. j.), that the plaintiffs' suit for damages in

respect of the above acts of the defendant fell within

Art. 36 of the second schedule of the Limitation

Act. Mohesh Chandra Das v. Hari Kar, 9 C. W.

N. 376, followed. Mungun Jha v. Dulhin Golab

Koer, 2 G. W. N. 260, s.c. I. L. R. 25 Calc 692,

1 referred to. Per Doss, J. (cowim) —That so far as

the defendant wrongfully entered on the land, the

suit was governed by Art. 39 and in regard to the

removal of the crop after it was cut, the suit

was governed by Art. 49 of the second Schedule of

the Limitation Act. Sripati Sakkar v. Haet

Har(1908) . . . 12 C.W.N. 1090

11. Arts. 36, 39— Limitation

Act {XV of 1877), Sch. II, Art. 11— Order dismiss-
ing claim for default not an order made after in-
vestigation and need not be set aside within one year
under Art. 11 of Sch. II of the Limitation Act. An
order dismissing a claim presented under s. 278
of the Code of Civil Procedure for default is not
an order made after investigation within the
meaning of that section and is not conclusive under
s. 283 of the Code of Civil Procedure. Art. ll,i
Sch. II, of the Limitation Act does not apply to;
such orders ; and the party against whom the order
is made can maintain a suit to establish his ngm
within the ordinarv period of limitation applicable
to such suit, although he has not had the order set
aside within one year. Koyyana Chittemma v.
Doosy Gavaramtna, I. L. R. 29 Mad. 225, referreq
to. Sarat Chandra Bisu v. Tarini Prosad Pa'

( 7049 )

DIGEST OF CASES.

( 7050 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule 11— conid.
. Art. 86— concld.

Chowdry, 11 C. W. N. -iST, approved. Sarala
5uBBA Rau v. Kamsala Timmayya (1907)

I. L. R. 31 Mad. 5

Art. 37 (1871, Art. 31)—

See Prescription — Easements — Rights
OF Water

I. L. R. 6 Calc. 394
The period for a suit for obstructing a water-
course is changed from two to three years by the
Act of 1877.

Suit for obstructing

water.course. Under the Act of 1859, a suit
for obstructing a water-course was field to be
governed by the general limitation of six years
under s. l,cl. 16, of that Act, or if the plaintiff
were out of possession, by the limitation of twelve
years. Buddun Thakoor v. Sunker Doss

W. R. 1864, 106

ViSWAWMBHARA RaJENDRA DeVA GaRTJ v-

Saeadhi Charana Samantaraya Garu

3 Mad. Ill

Art. 39 (1871, Art. 43)—

See ante, Art. 3(3.

1. Suit for cotn-

femation for tre.^pass to land — Right to declaratory
decree. A person whose right to land has been dis-
puted, and who has obtained an order, under Ch.-
40 of the Code of Criminal Procedure, 1872, from a
Magistrate, declaring him entitled to retain
possession, is entitled to sue for a declaration of his
right to the land. Plaintiff sued on the 9th Febru-
ary 1880 for compensation for loss of crops caused
by the defendants' taking possession of his well
n January 1877. The District Judge on appeal
lismissed the suit on the ground that time began
;o run against the plaintiff from January 1877
ind that the claim was barred by Art- 36, 37, 39, or
W, of Sch. 11 of the Limitation Act, 1877 -.—Held,
'hat the plaintiff was entitled to sue for compen-
ation for the trespass within three years from
ihe date on which the defendants' possession
•eased, and that the defendants were liable for

• ny loss suffered within three years preceding the
late of the suit. Narasimma Charya v. Ragtj-
'ATHi Charya . I. L. R. 6 Mad. 176

2. — Right of caste to

Klusive worship — Infrimjement of right. Foul
>ersons of the Chitpavan caste brought a suit
n 1876, alleging that they and the members of
heir caste, in common with certain other castes,
'ossessed the exclusive right of entry and worship
Q the sanctuary of a temple, and that the defend-
nts, members of the Palshe caste, not being of the
invileged cast«s, infringed that right in 1871

nd thereafter by entering the sanctuary and
erforming worship therein. They prayed for a
^eclaration of their right and an injunction restrain-

lilMITATION ACT (XV OF 1871)— conld.

Schedule II — contd.
Art. 39— concld.

ing the defendants from interfering with it. The
defendants contended {inter alia) that the suit was
barred by the law of limitation: — Held, that the
suit was not barred by Art. 43 of Sch. 11 of Act IX
of 1871, and that nothing in the law of limitation
prevented the establishment of such a right as
that denied, merely because the first act of inter-
ference with it was more than a stated number of
years ago. Such acts are not continuous Hke
possession, and their only operation is to create,
where often and consistently repeated during a long
period, a presumption of their lawful origin. An-

ANDRAV BhIKAJI PhADKE V. SHANKAR DaJI

Charya . . . I. L. R. 7 Bom. 323

3. and Art. 143 — Suit for

damages for trespass — Suit to recover immoveablr.
property from trespasser. The hmitation of three
years provided in cl. 43, Sch. II of the Limitation
Act (IX of 1871), applies only to suits for damages
on account of trespass, and not to suits to recover
immoveable property from a trespasser, for which
the period of limitation is twelve years, as provided
by cl. 143. Joharmal v. Municipality fok
Ahmednagar . . I. L. R. 6 Bom. 580

4. Suit to have

drainclosed — Cause of action. The cause of action
in a suit in which the plaintiff claimed to have a
drain closed on the ground that it passed through
his land, was held to count from the last act
of trespass, each act of trespass causing a fresh right
of action, and that the suit was not barred bv cl. H\
s. 1, Act XIV of 1859. Ramphul Sahoo r. "Misree
Lall . . . . 24 W. R. 97

Art. 40 (1871, Art. 11 : 1859, s. 1,

cl. 2)-

Snit for account profits
— Infringement of patent — Copyright Act {XX
of 1847), s. 16— Patent Act {XV of iSoO), s. -J'J.
In a suit for an account of profits obtained by the
infringement of an exclusive privilege, the period of
limitation, the taking of an account being only a
mode of ascertaining the amount of damages, is
the same as the period of limitation for an action or
damages on the same ground, viz., the period pre-
scribed by Art. 11, Sch. II, Act IX of 1871.
KiNMOND V. Jackson . I. L. R. 3 Calc. 17
Art. 42. There was no special prov

sion under the former Acts, 1859 and 1871, for
damages caused by a wrongful injunction.

Suit for damage^

caused by torongftU injunction. It was under the
Act of 1859 doubted whether such a siiit was
governed by cl. 2, s. 1 of that Act, the Court inclin-
ing to the opinion that it was not. Nanda Kumar

SlIAHA V. CoUR SaXKAR

5 B. li. R. Ap. 4 : 13 W. R. 305

Under both the former Acts, theicfore, the general
limitation of six years would probably have been

( 7051 )

DIGEST OB CASES.

( 7052 )

lilMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 42—concId.

applicable : now under Art. 42 of the present Act,
the period is three years from the cessation of the
injunction

Arts. 42 and 29 — Suit for com-

pensation for urongful seizure of moveable property
under legal process — Suit for compensation
for injury caused by an injunction uvongfully
obtriined. The defendant, on the 18th of February
1898, attached, in execution of his decree, certain
country soap as being the property of his judgment-
debtor. The plaintiff intervened, claiming the
soap as his, and his objection was allowed. The
defendant thereupon instituted a suit, under
s. 283 of the Code of Civil Procedure, for declara-
tion ot the title of his judgment-debtor, but was
defeated, and his appeal in that suit was dismissed
on the 23rd of March, 1899. At the time of the
institution of this suit, the defendant applied for
and obtained an injunction directing that the soap
should not be made over to the plaintiff. Ultima-
tely the plaintiff, on the 17th of June, 1899, after
the dismissal of the defendant' s appeal, obtained
possession of the soap. He then sued the defend-
ant to recover damages for the loss of part and
the deterioration of the rest of the soap while
under the defendant's attachment : — Held, that
Art. 42, and Art. 29, of the second Schedule to
the Indian Limitation Act, 1877, applied, and that
the suit was not barred by limitation. Idu Mian
V. Kahmat-Ullah (1901) . I. L. R. 24 All. 146

Art. 44 Suit for possession by a

person on attaining majority of property sold by
guardian. A suit by a person to recover posses-
sion of land sold by his guardian during his minority
without legal necessity is governed by Art. 44,
Sch. II of the Limitation Act, and must be brought
within three years from the time when the minor
attains majority. Satis Chaxdra Guha v.
Chuxder Kant Pyne . . 3 C. W. N. 278

Arts. 44, 144 — Suits for cancellation

of deed of sale and for possession. A suit for
cancelling a deed of sale executed by the plaintiff's
guardian on the ground of fraud and misrepresen-
tation and for recovery of possession of the jjroper-
ties comprised therein, falls within Art. 44 and
not within Art. 144 of Sch. II of the Limitation
Act. Unni v. Kunchi Amma, I. L. R. 14 Mad. 26,
distingui.shed. Kamakshi Natakan v. Ramasami
Nayakan, Second Appeal No. 929 of 1895. un-
reported, distinguished. Ranga Reddi r. Nara-
YANA Reddi (1905) . I. L. R. 28 Mad. 423

Art. 45 (1871, Art. 44 ; 1859, s. 1,

cl.6)-
L

Assess7)ient or

revenue or rent, order for — Award. An assessment
for revenue or rent by a Collector was not a judicial
award within the meaning of cl. 6 of s. 1, Act XIV

LIMITATION ACT (XV OF 1817)— cmtd.
Schedule ll~contd.

Art. 45— con<d.

of 1859. The term ' ' award " as used in that clause
means an adjudication on rights as between rival
claimants, made by a Revenue officer under the judi-
cial powers conferred by the regulations mentioned
in such clause. Huree Mohun Ghosatjl v.
Government , . . . 2 N". W. 226

2. — Judicial award

— Proceeding of Settlement Officer as to cess. Held,
that the proceeding of the Settlement Officer repre-
senting a cess as a source of income to the zamindar
was not a judicial award, and the limitation provid-
ed in cl. 6, s. 1, Act XIV of 1859, was not applicable
to a suit to set aside that proceeding. Ram Chtjnd
V. Zahoor Ali Khan ... 1 Agra 134

• Order of Revenue
of names. Held,

authorities as to registration
that an order passed by Revenue authorities for
entry of names in a proprietary register, not being
passed after a trial in a suit of the nature referred to
in cl. 2, s. 23, Regulation VIII of 1822, was not au
order in a suit to which the term of limitation
mentioned in cl. 6, s. 1, Act XIV of 1859, applies.
Mahdo Singh v. Jehangeer . 2 Agra 229

4. Atvard of Revenue

Court — Judicial award — Limitation Act, 1859, s. 1,
cl. 6. Cl. 6 of s. 1 of Act XIV of 1859 applies only
to a judicial award, and not to a determination
by the Revenue Courts of a purely executive cha-
racter. Madho Singh v. Jehangeer, 2 Agra 229 ;
Hurree Mohan Ghosal v. Government, 2 N. W.
226 ; and Sukhai v. Daryai, I. L. R. 1 All. 374,
referred to. Kristo Moni Gupta v. Secretary of
State for India . . 3 C. W. W. 99

Entry made

Settlement Officer. An entry made by a Settlement
officer in the report of a co-sharer and on the
strength of the report of the patwari and canoongofr
in the absence of the party against whom it is made,
was not an award within the provisions of s. 1, el.
6, of Act XIV of 1859. Kinhak Dansha v.
GoKTjRTTN .... 3 Agra 316

6. Suit to contest \

adjudication of boundaries by Revenue Court under |
Act I of 1847. An adjudication of the boundaries i
by the Revenue authorities under Act I of 1847 is
not final and conclusive, but is, like any other
judicial award made under Regulation VII of 1822, j
open to question by regular suit in the Civil Court I
within three years (cl. (i, s. 1, Act XIV of 1859). |
SujjAD V. Sahit Ali . . 3 Agra 140

7. ■— Order of Collec-
tor ivith reference to rights of parties already deter-
mined. \A'heie the relative rights of the parties as
landlord and tenants were determined by com-
petent authority and the matter referred for
decision of the Collector was to commute the rents
paid in kind into money rents, and that officer in
so doing decided the rights of the parties declaring

( 7053 )

DIGEST OF CASES.

( 7054 )

LIMITATION ACT (XV OP 1877)-contd.
Schedule II — contd.

— Art, 45— contd.

the tenants sub-proprietors and directing them
to pay at the revenue rates with an addition of 5
yer cent, allowance to the landlord : — Held, that
the order of the Collector was not an award of the
nature contemplated by cl. 6, s. 1, Act XIV of 1859.
BcNSEE V. Eamsookh . . 3 Agra 384

8. Suit to set aside

jmrtition. A suit to avoid a batwara division by
the Collector may be brought within six years ;
. 1, cl. 6, of Act XIV of 1859 does not apply to it.
OoDOY Singh v. Paltjck Singh . 16 W. B. 27
Suit to vary

boundaries in survey award. A suit substantially
to vary the boundaries laid down in a survey
award must be brought within three years from
the date of the award. Jaxkeeram Mohunt v.
Habadhan Banerjee . . W. E. 1864, 38

10.

Act of 1871,

Art. 44 — Proceedings by Settlement officer to decide
possession — Award — Beng. Beg. VII of 1822. D
lied in 1800 leaving him surviving his first wife G,
lis second wife B, his mother R, and M, his son by a
iToman to whom he had been married by the ' ' gan-
Iharp " form of marriage. On Z)"s death G'&
lame was registered in the record of rights in respect
if his proprietary rights in a certain village. In
1871 G died, ancl on her death B, R, and M pre-
erred separate claims to have their names registered
n respect of such rights. The Assistant Settle-
nent officer before whom these claims came
or decision, professing himself unable to decide
i'hich of the claimants was in possession, and obser-
ing that it was not shown that possession was joint,
eferrcd the case to the Settlement officer. The
Settlement officer, without making any inquiry,
isposed of the case on the evidence taken by the
Assistant Settlement officer, and held that the
laimants were in joint possession of such rights,
nd it was proper that the name of each should be
egistered in respect of a one-third share of such
ights. He at the same time intimated to the
i'arties that, unless they settled their claims in the
j'ivil Court or by arbitration before the khewat
•as framed, it would be framed as he had d'rtcted.
^n 1873 R died, and on her death M procured the
l^gistration of his name in respect of her one-third
;tiare. In 1879 B sued M for possession of the
|ne-third share which he had obtained under the
JFOceeding of the Settlement officer, and of ^'s
|ne-third share, claiming as heir to her deceased
usband D, and alleging that J/ was not the iegi-
:mate son of D, and was therefore not entitled to
jicceed to such rights. M set up as a defence
>at, as the proceeding of the Settlement officer
as an award under Regulation VII of 1822, and
iie suit was one to contest such award, and
I had not been brought within three j^ears from
,ie date of such award, the suit was barred by
nitation -.—Held, that the suit was not barred by
,iutation under No. 44, Sch. II of Act IX of 1871,

LIMITATION ACT (XV OP ISll)— contd.

Schedule 11— contd.
Art. 45— con<d.

or. No. 45, Sch. II of Act XV of 1877, as the pro-
ceeding of the Settlement officer was not an award
under Regulation VII of 1822. Bhaom v. .Mara-
RAJ Singh . . . I. L. R. 3 All. 738

11. ■ Application of

section. Cl. 6, s. 1, Act XIV of 1859, provides
that possessory titles by virtue of awards under the
regulations there mentioned shall become final
unless questioned within three years ; but that will
not enable a person to come in within three years
after the date of such awards and recover posses-
sion of lands in respect of which his suit has been
barred by the other provisions of the law of limi-
tation. Beer Chunder Joobraj v. Ramgutty
DuTT 8 W. R. 209

12. — Settlement award

■Beng. Reg. VII of 1822. On a Collector proceed-
ing to settle a mortgaged estate, both mortgagee
and mortgagor appeared before him and contended
for the right of settlement. His award under
Regulation VII of 1822 was in favour of the
mortgagee in possession on the ground that the
period of redemption had expired, and he settled
the estate with him : — Held, that, as the mortgagor
allowed that award to remain unchallenged for three
years, it became binding under cl. 6, s. 1, Act
XIV of 1859. Sreechund Baboo v. Mfixick
Choolhun .... 9W. 11.564

XIII of

13.

Act

1884 — Suit to contest award — Suit to amend settle-
ment— Cause of action. The limitation declared by
Act XIII of 1848, and cl. 6, s. 1, Act XIV of 1859,
applied only to suits for the purpose of contesting
the justice of an award as between the contending
parties, and not to those the object of which was
to amend a settlement and establish the right of
persons who were not before the Collector : — Held,
that the cause of action to the plaintiff did not
accrue from the date of the orders of Government
directing to discontinue the payment of mahkana,
but from that of the Collector's by which it became
known to the plaintiff that he would henceforth
be deprived of his proprietary title. Himmct
Singh v. Collector of Bijnour . 2 Agra 258

14. — Survey award,

appeal from — Co-sharers. A and B were similarly
affected bj' a survey award. A appealed, but B
did not : — Held, in a suit by B and his co-sharers to
set aside the award, that B could not compute the
period of limitation from the date of the order on
^"s appeal. Held, also, that B's co-sharers, though
they did not appear in the proceedings of award,
were bound, if they sued at all, to sue within the
three years prescribed by the law. Tulsiram
Das v. Moha.med Afzal alias Mirza

1 B. li. R. A. C, 12 : 10 W. R. 48

15. . Survey award —

Suit for reversal of, and for possession. Where
A sued for reversal of a survey award, and for

( 7055 )

DIGEST OF CASES.

( 7056 )

LIMITATION ACT (XV OF 1877)-

Schedule II — contd.
Art. 45 — coucld.

contd.

recovery of possession, alleging dispossession sub-
sequent to the date of the award : — Held, that his
suit was not barred by reason of its being brought
beyond three years from the date of the award-
MozAFFUR Ally v. Girish Chandra Das

1 B. li. B. A. C. 25 : 10 W. R. 71

16. Order of Board

of Revenue under Beng. Reg. VII of 1822 — Suit
for possession and declaration of title. An order of
the Board of Revenue under Regulation VII of
1822, declaring a particular person entitled to a
settlement of certain lands, is no ground for declar-
ing a third person, who was no part}' to those settle-
ment of proceedings in any stage, debarred under
Art. 44, Sch. 11 of Act IX of 1871 (corresponding
with Art. 45, Sch. II of Act XV of 1877), from
bringing a suit to establish his title to, and to
recover possession of, the lands after three years
and within the general law of limitation. Kanto
Prosad HaZari v. Asad Ali ELhan

5 C. L. R. 452

See SniBO Doorga Chowdhrain v. Hossein Ali
Chowdhry .... 6 W. E.. 218

17. Cause of action,

date of. A appealed from the award of a Survey
oflSeer to the Commissioner, who summarily re-
jected the appeal. The order of the Commissioner
was confirmed by the Board of Revenue without
entering into the merits -.—Held, that, the period of
limitation ran from the date of the order of the
Board of Revenue. Krlshna Chandra Das v.
Mahomed Afzal

1 B. L. R. A. C. 11 : 10 W. R. 51

Art. 46 (1871, Art. 45 ; 1859, s. 1,

cl,6)—
1.

-Order cf Settlement
Officer — Award. An order of a Settlement Officer
upon an enquiry made at the instance of the
zamindar, and for the purpose of the preparation
of the record, in the course of which enquiry infor-
mation was given both in support of and against
the zamindar's claim to a cess, was not an award of
the nature contemplated by cl. 6, s. 1, Act XIV of
1859, and the three years' period of hmitation was
inapphcable to a suit to assert such claim. Maho-
med Ali Khan v. Omrao Singh . 2 K". W. 425
Suit for

LIMITATION ACT (XV OF 1877)— con/d,

Schedule 11— cyntd.
■ Art. 46— confrf.

sion — Boundaries — Partition. In a suit by the
purchaser of one estate to recover certain lands
alleged to belong to his estate, which the defend-
ants held as a part of another estate, the plaintiff
needlessly prayed that a certain order passed in
the cause of the batwara of the defendant's estate
should be set aside. As the defendant failed to
show that the Collector, in laying down the boun-
daries of the estate then under batwara, was pro-
ceefhng under Regulation VII of 1882 -.—Held, that
the map made by him in carrying out the batwara of

another estate was not an award binding <
the defendant, and that the case therefore w
not barred by limitation under cl. 6, s. 1, A
XIV of 1859. "^RuGHOOBUR Singh v. Hurri

Pershad 6 W. R. "J

3. Survey au-ard-

Suit for possession — Res judicata. In a thakbu
map land was demarcat«d as belonging to A.
claimed that it belonged to liim jointly with .
On 18th November 1858. the map was rectified '
demarcating the lands to A and B jointly,
afterwards brought a suit against A in the Muusil
Court to recover the value of some mangoes whii
grew on two plots of the land in question ; and it w
decided on 12th December 1864 in favour of jB (
the ground that the plots belonged to A and
jointly. On 11th December 1865, A brought 1
suit against B for a declaration of right and co
firmation of possession, to set aside the surr
award and for amendment of the thakbust map.
alleged that he was no party to the thakbust pi
ceedings, and that he had been in possession ex
since : — Held (overruling the decision of the Gou;
below), that the suit was barred, so far as it ask
to have the thakbust map amended, imder cl. 6 f
s. 1, Act XIV of 1859 ; and that a suit by a persi
in possession to have his title confirmed was it
! a suit to recover propert}' within cl. 6 of s. 1, al
i was not barred by reason of its not being brou;t
; within three years from the date of the awa .
; Mahima Cil^ndra Chuckerbtjtty v. RaJKUAS

Chtjckerbutty
! 1 B. L. R. A. C. 1 : 10 W. B. 2

i 4. Award of t.

i tlement Officer. Where a claim to the propriety

rights was preferred by the plaintiffs at the t e

of settlement, and the Settlement Officer, on -"?

objection of the defendants, ordered the plain is

to be recorded as hereditary cultivators, d

referred them to the Civil Court to establish tir

' right -.—Held, that the present suit, brought tr>-

tablish that right not having been institrJ

^ within three years from the date of the award f

; the Settlement Officer, was barred by limitati-

t SxTRDAR Khan v. Chtjndoo . 1 Agra 5-8

5. Award of •'

77iejit Officer. Held, that the plaintiffs' claim t.
awarded to defendant in settlement proof
was not barred b}' the period of hmitation pro\
' in cl. 6, s. 1, Act XIV of 1859, as they wer
parties to the settlement proceedings and no jud
award or order affecting them was passed by"-
Settlement Officer. Ramaisher Singh v. Sh.--''
I Zalim Singh .... 2 Agi 8

[ 6. Settlement c

I —Beng. Reg. VII of 1822. A Settlement Offit »

, a certain proceeding recognized the plaint "

right to the property in suit, and. declaring f-"'

not to be clearly shown to be out of possession ■ "

ordered their names to be recorded in the pro •

( 7057 )

DIGEST OF CASE8.

( 7058 )

IMITATIOW ACT (XV OF 1877)— confd.

Schedule 11— conld.
Art. 46 — conctd.

iVy register. The plaintiffs subsequently brought
suit for establishment and declaration of right to
irtition and possession of the property : — Held,
lat the proceeding of the Settlement Officer
as undoubtedly an award under Reg. VII
■ 1822, and that, as the plaintiffs sued for posses-
on, and did n'jt allege that thej' had been
isposses^ed since the award, thus raising the
vsumption that they were not in possession at
• time, and as their suit was in substance and
lect a suit to recover property comprised in an
.vard the suit was barred by limitation, not
iving been instituted within three years.
UNESHEE Lall V. Tekam Kooer 5 N. W. 78

Art. 47 (1871, Art. 46; 1859, s. 1,

LIMITATION ACT (XV OF 1877)— conW.
Schedule 11— ccntd.

.7-

1. Suit for property

speding which no final aicurd is made. A suit

recover property respecting which no final award
IS been passed under Act IV of 1840 was not

rred by limitation, under cl. 7, s. 1, Act XIV

1859, but might be brought within twelve

■ars from the date of ouster. Dyram Sahoo v.

>ORAH 3 W. R. 174

2. Verbal order of

ngistrate under Act IV of 1840. Held, that a
Thai order of the Magistrate under Act IV of
f40 cannot be regarded as an order or award
thin the meaning of the term of cl. 7, Act XIV

1869. Gtjnga Pershad v. Mahomed Kootoob
LtJM . . . . , 2 Agra 27

3. _ Order in suit

ider Act IV of l840~Benamidar. N, in 1852,
irchased from R a patni talukh in the name of H.

' 1854 N died, leaving two sons, one of whom was
^. and a widow. The sons allowed the widow to
main in possession. In December 1854 R made a
mplaint before the Magistrate, under Act IV of
^40. against H K and others, stating that they
d dispossessed him of the talukh on 27th Decem'^-
1', and the Magistrate thereu})on ordered H and
t'other defendants except A' to put R'm possession.
1 12th January 1855. R obtained possession and
Id the property. On 2Sth December 1806 K and
' brother sued H R and the purchaser to recover
isscssion :— //(7rf (reversing the decision of the
iurts below), that the suit was not barred by s.
;cl. 7, of Act XIV of 1859. The mere fact tliat
j3 Act IV award was passed against H, a bena-
Idar of the plaintiffs, was not sufficient to show
jit they were bound by that award unless evi-
nce was given that they gave authority to H,
Ipress or implied, to act in the matter on their
jhalf. Khaoendronath Malik v. Rakhal Das
p'^R • . . . 2 B. L. R. S. N. 1

p Order of Magis-

lie for attachment. Where a Magistrate passed
order for attachment on the finding that neither
the parties then at issue was in possession : —

Art. 47 — contd.

Held, that it was not an order respecting possession
within the meaning of cl. 7, s. 1, Act XIV of 1859,
and therefore the limitation provided by that
clause was not appficable. Chuj Mull v. Khy-
ratee . . , . .3 Agra 65

Order di-smissing

complaint under Act IV of 1840. A Magistrate's
order dismissing a complaint under Act IV of 1840,
on finding that complainant had not been forcibly
dispossessed, was not a binding award to which cl.
7, s. 1, Act XIV of 1859, would apply. HrRRONATH
Chowdhry v. Huree Lall .Shaha

IIW. B. 477

6. Order to record

letter settling proceedings. Where the result of cer-
tain proceedings under Act IV of 1840 was a letter
from the Judge directing the Magistrate to leave
certain maliks not in possession of a certain dearah
in dispute to their civil remedy, and the Magis-
trate ordered the Judge's letter to be put with
the record : — Held, that such order was not an
oKler in the sense of Act XIV of 1859, s. 1. cl. 7.
MosAHEB Ali v. Nund Kishore . 20 W. E. 316

7. Act XIV of 1859,

s. 1, cl 7 — Order as to possession under Criminal
Procedure Code, 1861, s. 318. It was held under s.
1, cl. 7, of the Act of 1859, that that clause did
not apply to an order as to possession under the
Criminal Procedure Code, s. 318. Doorjun Singh
V. Shibba . . . . 3 N". W. 171

GoBiND Chunder Shaha v. Ashruf Ali Meah.
Gregory v. Gourdoss Shaha . 8 W. R. 490

Undhoob Narain v. Chutturdilaree Sikgh

9 W. R. 480
and the twelve years' limitation was held to a])ply to
such cases, but the Acts of 1871 and 1877 make the
articles corresponding to s. 1, cl. 7, specially
applicable to the Criminal Court's order as to
possession under the Criminal Procedure Codes.

8. Order under

Criminal Procedtire Code, 1861, s. 319 — Order of
attachment. The plaintiff sued for the establish-
ment of his proprietary right to, and possession of,
a certain ghat, or bathing place. The lower Courts
held that the suit was barred bv limitation under
ci. 46, Sch. II, Act IX of 1871, the suit not having
been brought within three j-ears from the date on
which the Magistrate, acting under Ch. XVIII of
Act XXV of 1801, passed an order directing that
the ]ilaintiff and one of the defendants to the suit
should put in personal recognizances of K500 each,
and that the tehsildar should warn the parties not
to go near the bathing place until a competent
Court had .settled the quarrel between them : the
lower Courts being of opinion that the latter
portion of the order amounted to an attachment
of the property in dispute under s. 319 of Act XXV
of 1861. It was held that the order to the tehsildar

( 7059 )

DIGEST OF CASES

LIMITATION ACT (XV OF I8n)-ccntd.
Sehedxile ll-c^Ud.

Art. 47— ivn/J.

was not au attachment contemplated b
section. Dukga i: Masgal .

that
7 N. W. 35

Suit for posses-
sion of chur lands re-formed after diluvion — Order for
possession in Criminal Court. Certain chur lands,
which had been submerged, having re-formed, were
claimed by a number of parties. In a pjoceeding
under s. 31S of Act XXV of lSt>l. the Magistrate
in January 1S71 directed p> sse&sion to be given to
certain persons known as the Roys. In 1S72 the
present appellants instituted a suit against the
Roys to set aside the order of the Magistrate, and
on the UUh December 1S73 obtained a decree in the
H gb Court, imder which possession was given on
the 10th July 1S74. In 1S74, more than three
years after the MagiSmxte's order, the plaintiffs
instituted two suits against the Ro\"S and the
appellants for poss^ession of the lands made over
to the latter under the decree of 1S73 : — Held, that
these suits were not barred by limitation under Art.
40. Sch. II of the Limitation Act (IX of 1S71) (cf.
Act XV of 1S77. Sch. II. Art. 47). That article
can only ap] ly between the parties whose posses-
sion has been confirmed by the Magistrate, and each
one of the parties to that proceeding who claimed
against them. It does not apply in favour of one
of the parties who has subsequently succeeded by
regular suit in ousting the parties put in posses-
sion by the Magistrate. Dur'jaram Boi/ v. Xursing
Deb. ":? £. L. B. A. C. •2o4 ; and Chintamoni v.
IstcarChunder.SB.L.B.Ap. i:?l\ cited. ArKHiL
CnrxDEK Chowdbry r. Delawab hossets

6 C. Ii. E. 93

10. Order of Crimincl

Court as to possession — Parties bound by order —
Criminal Procedure Code (lSS-2). s. 14-5. The limita-
tion of three yeans prescribed by Art. 47, Sch. II
of the Limitation Act (1S77). applies to all persons
bound by. or parties to. an order under s. 145 of
the Criminal Procedure Code, and to any other
persons who may claim the property through any
such persons under a title derived subsequent to
the order. Aukhil Chunder Choicdhrij v. Jlirza
Delatcir Choicdhry. 6 C. L. B. 9o. distinguished.

JOGESDKA KI5HORE ROY ChOWDHKY V. BkOJE>--
DBA KiSHORE RoY ChOWPHKY

1. 1.. K. 23 Gale. 731

11.

Criminal Pro-

cedure Code^ IS6L Ch. XX//. 5. .jji}— Order of
Criminal Court as to po^fession. A dispute having
arisen between plainriff and defendant as to the
ownership of certain landed property, the Magis-
trate, being informed of the dispute, held an inquiry
under the provisions of Ch. XXIT. Act XXV of
1S61, and. finding himself unable to "determine
who was in actual possession of the lands," placed
them in charge of the Sub- Magistrate : — Held, that
this was not an order respecting "* the possesion of
property." but an attachment proceeding lecoided
because the Magistrate was unable to determine

LIMITATION ACT (XV OP 1877)— contf,
Schedule II— con/i.

Art. ^1—contd.

which party was in po.^session. The limitation (
three years prescribed by the 46th clause of Sch. 1
of Act IX of 1S71 was therefore inapplicabl
Akilaxdammal r. PeriaSami Pillai

L L. H. 1 Mad. 90

12. Possession, su

for — Order of Criminal Court for possession. In
dispute between J and B conceming the posse
sion of a certain talukh, the Criminaf Court ma.:
an order tinder s. 530 of the Code of Crimir
Procedure retaining B in possession ; and th
order was. in a proceeding under ss. 295. 296 of ti
Code of Criminal Procedure, confirmed by th
Court of Session -.—Held, that a suit by A for tl
recovery of the land must be brought within thn
years from the date of the Magistrates order, ar
not from the date of the order passed by tl
Court of Session. Art. 47 of Soh. II. Act XV
IS77, refers to immoveable as well as moveab
property-. Kaxoali CHmts Sha f. ZoscrKBr:
o>-:s-isSA Kh-\toox

I. L. E. 6 Cale. 709 : 8 C. L. B. 15
5ff Akiiaxdammal v. Pzkiasami PnxAi '

L L. E. 1 Mad, 8C

13. CrimiJioI Pt

cedure Code (Act X of ISS'J), s. 14'} — ^inV for po$s^
sion of property attached by a Magistrate under,
146. Art. 47 of the second Schedule to Act ^ i
1S77 does not apply to a suit brought by one of t
two claimants against the other to recover posaj
sion of proj^^rty which has been attached byi
Magistrate under the provision of s. 146 * "
Code of Criminal Procedure. Chuj Mull v.
atee. 3 Agra 6-5. and AHlmdatnmal v. Pc
Piliai. I. L. B. 1 Mad. 309. referred to- h

WAMI RaSCHOR LaLJI f. GrBDHA.KIJI I

L L. R. 20 AIL r

14. and Art. 144 — Ejectmer:

to sue in — Order mude in proceeding ir'
dispute crista concerning the possession of
Criminal Procedure Code {Act X of 1S72), s.
Criminal Procedure Code {Act X of ISSJ). ^
Azamindarou the 3rd May 1S76 agreed to le'
on lease to A and his co-sharers, who. on the .
dar's failure to carry out the terirs of the agre^
brought a suit for s^iecific performance ar.
rained a decree against him in 1S79.
zamindar having neglected to perform the -
ment. the Court in Decemter ISSl made a:
for the execution of a pottah. and directed t :
pottah should take effect from the date
original agreement. The pottah was execu'
the 19th December ISSl. In ISSO A insti:
procee<iing under s. 530 of the Criminal Pro
Code iX of 1S72). which corresponds with -
of Act X of 1 SS2 ; but tbe a pplication was disv
in December ISSO. A having failed to es:
possession. B. having purchased the inter
two of the co-sharers, instituted a stut on th
May ISSS against certain persons who had be

;'06i )

DIGEST OF CASES.

( 7062 )

[MITATION ACT (XV OF 1611)— contd.
Schedule 11— contd.

Art. AT— contd.

o possession by the zamindar, the other co-
irers being added as plaintiiis :—Held, that Art-
. Sch. II of the Limitation Act, did not apply, no
ht to sue in ejectment being in existence in
camber 1880, the right with which ^ was clothed
ler the decree not having been perfected till De-
Qber 1881 when the pottah was executed. Held,
ther, that the suit was not barred under Art.
^ as limitation did not commence to run until
pottah had actually been executed. Art. 47
-he Limitation Act contemplates a right to
in ejectment being in existence at the time of the
Jing of an order under s. 145 of the Code of
minal Procedure. Bolai Chand Ghosal v.
iiRUDDix iLiXDAL . I. L. R. 19 Calc. 646

Khoii Act (Bom.

I of ISSO), s$. 20, 21, 22— Decision of Survey
<:er ai to nature of tenure — Date of framing bot-
1. The plaintiffs were khots and defendants
e their yearly tenants in occupation of their
*• '-'-—■ lands. In 1S90 the Survey Officer,

I porting to act under s. 20 of the Bombay
Mi Act (Bombay Act I of 1880), decided that
■nilants were occupancy tenants, but the plaint-
: did not come to know of this decision till
:i, when the botkhat \\ as prepared and signed,
irtly afterwards the plaintiffs took forcible
h«ssion of the lands. Thereupon the defend-
:• filed a suit in the :Mamlcitdar's Court to re-
I T possession, alleging that they were owners
the land, and that they had been illegally dis-
► essed. The Mamlatdar restored "them to
".es-Mon. In 1890 plaintiffs tiled the present
L| to eject defendants. Defendants pleaded
',r alia) that the suit was bad for \\ant of
•<l?e to quit, and that the claim was time-
*\od:—neld. that the suit was \\-ithin time, the
B|C of action having accrued in 1893, when the
f|hat wjvs prepared, and not in 1890, when the
V^y Officer passefl his decision. ]\Iahipat Rane
•JAKSHMAN . . I. L. R. 24 Bom. 426

Limitniion Act

1859), s. 1, cl. 7— Order of MamUidtar's

' possession — Bom-. Reg. V of 1S27 — Liyni-

IX of isrr, s. 29 ; {XV of 1877), s. 28

'i of tith—Bar of remedy — Statutes of

-"on-struction of .statutes. In 1864 A sued

rer B in the Maralatdar's Court for

a of certain land and obtained a decree.

'V'4 B got possession of the land bv inducing

^'enants to attorn to him. In 1880 A conveyed

liMnU to C by a deed of sale, and in 1886 C filed a

""jiL'Hinst ^ to obtain possession of the land so

^V'"' him by .4. He alleged that any claim which

' ■! to the land as co-sharer w.is extinguish-

* I limitation, inasmuch as he had brought no

""I'Vithin three years from the date of the .Marn-

tt.r s decree against him of Jidy 1864 to get rid

\ '*- effects of that decision (see cl. 7 of s. 1 of

■» ation Act XIV of 1859). The lower Court

*;7

LIMITATION ACT (XV OF 1877)— confef.
Schedule 11— contd.
Art. 47— contd.
*^isallo\\ed this contention. It also held that the
Mamlatdar's decision as to po.ssession did not
affect a co-sharer's claim for partition. It there-
fore awarded the plaintiff C only the share of his
vendor A in the property. On appeal to the High
Court: — Held, confirming the decision of the lower
Court, that although under cl 7 of s. 1 of the
Limitation Act (Xl\ of 1859) B could not after July
1867 have sued to assert his title to the land com-
prised in the Mamlatdar's order of July 1864,
nevertheless his title to the said land was not
extinguished, and the possession which he obtained
in 1S74 could properly be referred, and ought to be
referred, to his then subsisting title. Con.^equently,
any one who after his re-entry in 1874 disputed
his title would have to prove his own as against
S's title independenth- of anv- help from the
statute of limitation.' Held, also, that a suit
for the partition of property comprised in a Mam-
latdar's order is not a suit to recover such property
and therefore does not fall within el. 7 of s. 1 of Act
XIV of 1859 ; and ^^hethe^ that propertv- is the
only one of which a partition is claimed or whether
it is one of several such properties, is not material.
In the Presidency of Bombay it is only in those
cases in which the possession of projierty has been
of such a duration and character as to come within
Regulation V of 1827 that the Limitation Act (XIV
of 1859) has been held to extinguish the original
right to the property. Quare : Whether (assum-
ing that the effect of the Limitation Act XI\' of
1859 was similar to the effect of s. 29 of the Limita-
tion Act of 1871 and s. 28 of the Act of 1877) cl. 7
of s. 1 of Act XIV of 1859, Mhich in terms relates to
" suits to recover the property comprised in the
order " of the Mamlatdar, would have barred a suit
by B not based on a claim to recover the property
(which implies a claim to exclude the defendant
therefrom altogether), but one merely for obtaining
a share of such property on the footing that ,4, who
hckd been successful in the Mamlatdar's Court, held
it for himself and B jointly. Statutes of limitatir.n
being in limitation of common right are not to be
extended by construction to cases nc t clearly in-
cluded within their terms. Parashram Jethmal
I'. Rakhma . . I. L. E. 15 Bom. 299
17. Order of Mam-
latdar under Bom. Act V of lS64—Act XVI of 1838.
An order of the Court of the Mamlatdar under the
last clause of .s. I of Bombay Act V of 1864, recogniz-
ing the possession of a party and enjoining others
from disturbing that possession, was not an
order under Act XVI of 1838 ; and the limitation
of three years, prescribed in cl. 7 of s. 1 of Act
XIV of 1859, did not apply to a suit brought to
establish a right against the operation of such an
order in the regular Civil Court. Babaji v. Anna
10 Bom. 479^

18.

Order of Mam.

latdar under Bom. Act V of 1S64. A brought a suit

( 7063 )

DIGEST OF CASES.

( 7064 )

LIMITATION ACT (XV OF 1877)— conii.

Schedule II — contd.
Art. 47 — contd.

in a Mamlatdar's Court, under Bombay Act V
of 1864, to recover possession of certain land from
B. C joined in the proceedings propria motu, and
the Mamlatdar, on the 1st May 1865, made an order
awarding possession of the land to G. In an action
brought by A against C in the Civil Court on
the 18th October 1869, C pleaded limitation under
s. 1, cl. 7, Act XIV of 1859, as the action was
not filed ^vittlin three years of the Mamlatdar's
order : — Held, that the action Mas not barred by
limitation, as C was not properly a defendant
in the Mamlatdar's Court, and that therefore the
Mamlatdar had no power to make an order re-
garding him. ViSHVANATHRAV KaCHESVAR V.

JSIarayan BIX GoPAL Khape . 9 Bom. 424
19. — Right of posses-

sion claimed by tenant against landlord — Mortgage
by landlord — Possessory suit in the Mamlatdar's
Court by the tenant against the mortgagor — Decree in
favour of the tenant — Assignment of tnorigage by
mortgagee — Purchase of the eqtiity of redemption by
the assignee — Merger — Suit brought by the assignee
to recover possession — Assignee bound by Mamlat-
dar's order against mortgagor — Mamlatdars Act
(Bom. Act V of 1S64), s. 15 — Mamlatdars Act
{Bom. Act. Ill of 1S76), s. IS— Limitation Act (IX
■of 187 1), Sch. II, Art. 46. One R, who was the
owner of the land in dispute, mortgaged it to P in
July 1870. In October 1876, B, a tenant of the
land, obtained an injunction against R restraining
him from interfering with his (JS's) possession in a
possessory suit which was filed in the Mamlatdar's
Court in'May 1876. In July 1877, P obtained a
decree on his mortgage, and in execution he got pos-
session of the proj^erty from R (the mortgagor) in
June 1879. The plaintiff who was the assignee
of both P and R (mortgagee and mortgagor), sued
JS in ejectment in September 1888. Both the lower
Courts allowed the claim. On second appeal by
B, the plaintiff (inter alia) contended that, having
taken an assignment of the mortgage from the
mortgagee, he was not bound by the proceedings
in the Mamlatdar's Court in 1876 against the
mortgagor. But held that, when the plaintiff,
having previously taken an assignment of P's
mortgage, purchased the equity of redemption from
R, the mortgage was extinguished, there being no
circumstance from which an intention could be
presumed to keep it alive. The plaintiff could
not stand in a better position than R, and was
bound by the proceedings in the Mamlatdar's
Court, notwithstanding that he had taken an assign-
ment of P's mortgage. In those proceedings the
•defendant had claimed a right of permanent
possession as against R, and the effect of the
Mamlatdar's order was to continue him in posses-
■Bion until ejected by the decree of a Civil Court.
It was therefore incumbent upon R to bring a suit
within three years from the Mamlatdar's order, as
provided by Art. 46, Sch. II of the Limitation Act

LIMITATION ACT (XV OF 1877)— cor
Schedule II — contd.

Art. 47— contd.

(IX of 1871), and that not having been done,
plaintiff, who derived his title from R, 6ould
I'ccover possession from the defendant. B
BIN Mahadaji v. Mahadaji Vasudeo

I. li. R. 18 Bom.

20.

Finding by 1

latdar as to possession — Subsequent contrary
ing by Civil Court — Effect of Mamlatdar's ore
Limitation Act, s. 28 — Suit by party against -,
Mamlatdar's order was made. The plaintiff bro
this suit to recover possession of certain land v
has belonged to her nephew, and of which, itftei
death in 1878, she had assumed the managen
In 1881, she brought a possessoi'y suit against
first defendant in the Mamlatdar's Court, w
suit was dismissed in January 1885, the MamU
holding that she had not been in possession,
a civil suit, however, which (pending the pro(
ings in the Mamlatdar's Court) she had
against the first defendant in the Court of
Subordinate Judge of Haveri> the Judge fn
that she had been in possession since l(^8ii,
awarded her damages against the first defer i
(who was held to be her farm servant) for o
which had been taken away by him. In !
the second defendant as mortgagee from defers
No. 1 obtained a decree aga,inst plaintiff irt
Mamlatdar's Court awarding him possessio
the land, and in execution of that decree the pi
iff was dispossessed in December 1887. In 1
the plaintiff filed this suit to recover possessioi*:
for mesne profits since 1887. The dcfeii
pleaded that the plaintiff had no title to the r
and that the suit was barred by limitation, r'
much as the plaintiff had not brought a si;
establish her right within three years aftet
Mamlatdar's order in 1885 dismissing her p^
sory suit. HeU, that the Mamlatdar's ovd.
January 1885 had no conclusive effect, ancf^
rendered ineffectual by the subsequent dec ■
the Civil Court ; and as the plaintiff continvi
possession, notwithstanding that order, do >
1887, the present suit was not barred by limit io
and neither her remedy norher right to the Ian v
extinguished. Keishnachakya v. Lingawa,
I. L. R. 20 Bom,^i

21. ■ Non-paym(*

purchase-money — Stiit for possession by vcm''
has not paid the purchase-money — Remedy oj
— Limitation — Limitation Act (XV of hS^ '
II, Art. 47 — Vendor and purchaser. The ]; '
iffs owned certain land on which the defei*ni
with the plaintiffs' leave, built a house. Du"'
arose between plaintiffs and defendant, aj i
February 1893, the defendant obtained anjra
from the Mamlatdar in a possessory suit agair tl
plaintiffs directing the plaintiffs to give up f^
eion of the property to him. In August 18!, «
agreement was made between them, in purfiiO

( 7065 )

DIGEST OF CASES.

( 7066 )

MITATION ACT (XV OF 1877)— conW.

Schedule 11— contd.

Art. 41—contd.

H-hich the defendant executed a rent-note to the
intiffs prcmisins; to ofive up the property to the
intitTsat tlie end of four months on payment by
I plaintiffs (i RIOO. On the 25th November
'6, the pla;i;tiff.s brought his suit for possession,
'ffinjr that the defendant refused to give up the
iperty. The District Judge dismissed the suit,
barred by limitation, under Art. 47, Sch. II of
I Limitation Act, not having been brought Mithin
?e years from the date of the Mamlatdar's order
' ^th February 1S93. Held, also,that the contract
ween the parties dissolved the order of the
mlatdar in the possessory suit and rendered it
lecessary for the plaintiffs to sue to set it aside.
^ present suit, which was based on the contract
•ale, was^therefore not barred by Art. 47 of the
litation Act. Sag.a.ji v. Namdev

I. L. K. 23 Bom. 525

LIMITATION ACT (XV OF 1877)— conW.
Schedule II — contd.

Partition suit —
of Sch. II of the

,n. Ad V of 1864. Art,

(litation Act IX of 1871 is not applicable to a

,fition suit. Shivram v. Narayak

I I. L. R. 5 Bom, 27

'}. Partition suit —

h. Act V of 1864. Plaintiff in 1876 filed a suit
I stablish his right to, and to recover a fourth
l'"e of, certain property which he alleged to be
astral. He stated his cause of action to have ae-
id on the 17th May 1871, on which day he had
I if dispossessed by an order of the Mamlatdar,
ileunder Bombay Act V of 1864. The District
.' rt held that tlie suit was barred by Art. 46,
W II of the Limitation -Act (IX of 1871). Held
r'he High Court, on special appeal, that Art. 46
li'not apply, and that the suit was not barred.
J'ouj V. Aniaba. . I. L. R. 5 Bom. 25

\'u Quare : Whether

Ui 47 applies to an order under s. 146 of the Code
f:;iminal Procedure. Deo Narain Chowdhury
'• I EBB (1900) . I. L. R. 28 Cale. 86

I s.e. 5 C. W. N. 160

31a7nlatdar^s

7f,t« Act (Bom. Act III of 1876), s. 13— Possessory
V -Mamlatdar's Court. In a possessory suit
Diluted 'in a Mamlatdar's Court, neither the
?!• tifE nor the defendant appeared at the
'f,n2. The case was therefore disposed of by
h<!a mlatdar. under the first part of s. 13 of the
^li'latdars' Courts Act (Bom. Act III of 1876).
~ /''. that the order of the Mamlatdar Mas an
'"5 rejecting the plaint. A regular suit for pos-
*sj'n having been brought in a Civil Court more
^' three years after the above order of the
««'atdar: — Held, th&t the suit was time-barred
^"j- Art 47. Sch. II, of the Limitation Act
1^ of 1877). Purushottam Dayakam v.
* iEom Guru Arjungir (1900)

I. L. R. 25 Bom. 82

Art. 4t7—coTUd.

26.

Civil Procedure

Code (Act XIV of 1882), s. 1.3, explanation II-
Math Manager — Possessorij suit in Mamlatdar's
Court in a personal and private capacitt/ — Sub-
sequent civil suit in a representative capacity— Limita-
tion. The defendant took the house in dispute on
lease from one Pvaghunathdas, who was the manager
of a certain math. After the death of lUghunathdaa
his disciple, the present plaintiff, brought a posses-
sory suit in the Mamlatdar's Court against the
defendant, and the Mamlatdar on the 6th May
1889 dismissed the suit on the ground that by
not producing a succession certificate the
plaintiff had failed to estabUsh his title as heir to
Raghunathdas. Subsequently the plaintiff, describ-
ing himself as the manager of the math, brought
the present suit on the 7th February 1900 to
recover possession of the house and rent or damages
for use and occupation. It was contended that tlie
suit was time-barred under Art. 47, Sch. II of the
Limitation Act (XV of 1877), it being not brought
within three years from the date of the Mamlatdar's
order : — Held, that the suit was not time-barred
under Art. 47, Sch. II of the Limitation Act (XV
of 1877), because the first suit in the iMamlatdar's
Court was brought by the plaintiff in his personal
and private capacity, while the second suit was
brought by him as manager and on behalf of the
math. In connection with the property of a math
there are two distinct classes of suits, those in
which the manager seeks to enforce his private
and personal rights and those in which he seeks to
vindicate the rights of the math. A math like an
idol is, in Hindu law, a judicial person capable of
acquiring, holding, and vindicating legal rights
through the medium of some human agency. When
the property is vested in the math, then htigation
in respect of it has ordinarily to be conducted by,
and in the name of, the manager, not because the
legal property is vested in the manager, but be-
cause it is the established practice that the suit
should be brought in that form. But a person in
whose name the suit is thus brought has in relation
to that suit a distinct capacity ; he is therein a
stranger to himself in his personal and private
capacity in a Court of law. An order in a Mam-
latdar's suit does not give rise to the bar to which
explanation II of s. 13 of the Civil Procedure Code
(Act XIV of 1882) relates. Babajirao v. Lax-
MA>-DAs (1904) . I. L. R. 28 Bom. 215

27. Mamlatdar',

Courts Act (Bombay Act III of 1876), ss. 4, 15, 18,
and 21 — Possessory suit in Mamlatdar's Court —
Rejectio7i of plaint — Suhsequent suit for possession
on title in ordinary Court — Limitation. A plaintiff
suing in the ordinary Courts on his title for the
possession of land is not bound by reason of any-
thing in Art. 47, Sch. II of the Limitation Act (XV
of 1877), or s. 21 of the Mamlatdar's Courts
Act (Bombay Act III of 1876) to bring his suit

( 7067 )

DIGEST OF CASES.

( 7068 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 47 — concJd.

within three years from the previous rejection
of his plaint by a Mamlatdar in a suit for the
possession of that land. As a suit on title is out-
side the Mamlatdar's jurisdiction, a mere rejec-
tion of a plaint by him cannot be treated as an
order binding the plaintiff in reference to that
which is the cause of action in a suit on title.
TuKAKAM V. Hari (1904)

I. L. R. 28 Bom. 601
28. , Suit to recover

property, the subject of an order under s. 145 of the
Criminal Procedure Code {Act V of 1S9S) — Limi-
tation— Starting point— Rule issued b// High Court
against Magistrate'' s order — " Final order .'^ For a
suit to recover property, in [respect of which an
order under s. 145 of the Criminal Procedure
Code has been made, the period of limitation runs
from the date of the order of the Magistrate and
not from the date on which a rule issued by the
High Court under s. 5 of the Charter Act against the
Magistrate's order was finally disposed of. Jagan-
NATH Mabwari v. Ondal Coal Co. (1908)

12 C. W. N. 840

Art. 48 (1871, Art. 48)—

^ee ante, s. 10 .9 C. W. K". 443

1. and Art. 36 — Standing crops —

Immoveahle property. Standing crops are im-
moveable property within the meaning of the
Limitation Act. Pandah Gazi v. Je.vnuddi

I. Ii. R. 4 Gale. 665 : 2 C. L. E. 526

2. '- Suit for damages

for injury to crops. Under Act XIV of 1859, it was
held that a suit for damages for injury to standing
crops was a suit for damages for injury to personal
property within the meaning of s. 1, cl. 2. Kashidas

GOVINDBHAI V. B. B. AND C. I. RAILWAY COM-
PANY ... 6 Bom. A. C. 114
WTiere the crops were cut and stored, they were
personal property Munnoo Bebee v. Jhaxdar
Khan ... .3 Agra 389

3. Suit for compen-

nation for injury to land and crops. A suit for
compensation for injury to land resulting in the loss
of crops which the land might have produced, but
for the illegal act of defendant, is not a suit with
respect to personal property. Raj ' Ch under j
Ghose v. Joy Kishen Mookerjee 4 W. R. 76 j

4. Suit to recover \

money deposited for a certain q^urpose. R sued M \
for a certain sum of money on the ground that he j
had given such sum to M to deliver to his (i?'s) I
family ; that M had not delivered the money ; and I
that, when this fact became known to R and he i
demanded the money, M denied having received
the same : — Held, that the limitation law applicable
to the suit was that provided by Art. 48, Sch. II
of the Limitation Act, 1877, and the time from
which the period of limitation began to run was

LIMITATION ACT (XV OF 1877)— c(

Schedule Tl— contd.
Art. 43—concld.

when B first learnt that M had retained the n
in his posfsession instead of paying it as din
Rameshar Chaubey v. Mata Bhikh

I. L. R. 5 All

Arts. 48, 49 and 145—

— Deposit — Suit to r>

property deposited for safe custody. In Oct
1897, the plaintiff's mother deposited
ments, clothes and money with the defendar
safe custody. In April, 1898, she dem;
their return, but it was refused. Shortly ;
wards she died. More than three years afte
demand and refusal, the plaintiff (a minor)
the defendant to recover the property, and pi
for its value as an alternative. The Judge
the claim barred under Arts. 48 and 49, Sch. '.
the Limitation Act (XV of 1877). Held (reve
the decree), that the suit fell within Art. 145 o:
II to the Limitation Act (XV of 1877), and w<
barred by hmitation. Narmadabai v. Bha
shankar (1902) . I. Ii. R. 26 Bom.:

Arts. 48, 90, 115-

Limitation — Suit

cover money given to the defendant to he delivei
a third person. A gave R300 to B in order ti
might be delivered to C, who had, a few I
previously, executed a mortgage in favour
B also executed a bond guaranteeing the repa,M(
of the loan by C. On suit by A against B si
which was decided on the 15th of January l!l,
was discovered that B had never paid the moiv
C. On the 1st of December 1904, A sued J
recover the R300 paid to him as above descril 1
Held, that the rule of limitation applicable wstl
provided for by Art. 48, if not by Art. 90 dl
of the Indian Limitation Act, 1877, and thjsi
was time-barred. Rameshar Chaubey v. in
Bhikh, I. L. R. 5 All. 341, referred to. Ra:C*
V. Ghulam Husain (1907) I

I. L. R. 29 All^l

Arts. 48, 109—

; ZuBPESHGi Lease.
Art. 49—

11 c. w. m

See ante. Art. 36.
See Civil Procedure Code, 18i
9 C. W.

1. Injury

sonal property — Taking atcay personal r
Under the Act of 1859, taking away
property was held to be not included in tli
" injury to personal property " in s. 1, cl -
thamal V. Ranganadha Pillai . 3 M:
ANONYMOtrs Case . W. E. F. -

Ahmedullah v. Hub Churn Pandah

2 W. I

B67

{ 7069 )

DIGEST OF CASES.

( 7070 )

[MITATION ACT (XV OP 1877)— con<i.
Schedule II — contd.

Art. 4d—co7dd.

Ramnath Roy Chowdry v. Hueei Chtjnder
iY Chowdhry . . . 5 W. R. 50

Pbahlad Maharudra v. Watt 10 Bom. 346

d Dhunpdtty Koer v. Lloyd

17 W. R. 277

Such cases were held to be governed by tbe
neral limitation of six years under cl. 16 of
1. NtiW, however, such suits would apparently be
ered by this Article or perhaps by Art. 36. 'ii

2. Suit to recover or-

merits taken with view of borrowing money on
VI. In a suit to recover certain ornaments (or
eir value) which had been obtained by the defend -
t from the plaintiff's ancestor with a view to
rrowing money on them, the cause of action was
'd to arise when the defendant set up an adverse
le to them. Shumboo Chdnder Mullick v.
.ANKRiSTO Mullick . . 14 W. R. 322
Sale of moveable

'i immoveable property — Refusal to execute con-
ance — Suit for possession — " Unlawful posses-
tt." A entered into an agreement with B for the
-chase of moveable and immoveable i^roperty
1 paid a deposit. Under such an agreement, by
io of the Contract Act, the ownership of the
I veable pioi»rty would not pass before the trans-
I of tlie immoveable property. B, inttead of
I'lveying to A the property agreed to be conveyed
I'liim, conveyed it to C and put him, C, in posses-
f'l. A brought a suit against C and B, and obtain-
■i decree setting aside the conveyance to C, and
V.L'ring B specifically to perform his contract and
?'?ute a conveyance of the property to himself,
•Jrhis decree was confirmed on appeal, i? refusing
t'xecute the conveyance to A, the conveyance
«' executed bv the Court under the provisions of
BH)2 of Act Vill of 18.19, C still detaining posses-
B'l of the moveable and immoveable property in
qjStion. A brought this suit against him to re-
c' 'r possession of the same. The suit was brought
" lin three years of the final decree of the Court
B ppeal in the former suit, ordering a convej-ance
0 jie property to be executed to A , but not within
tl e years of the date of the agreement to pur-
^1 ^, and it was contended that, as to the
^eable property, the suit was time-barred.
Qj . that the suit for the possession of the move-
»'| property was not time-barred, as the right to
P'.ession of both the moveable and immoveable
Pi erty accrued to A, at the earUest, on the
I'l of the final decree for specific performance
w le agreement of sale, and it was from that
«': that the " detainer's possession " first became
"J*ful under Art. 49, Sch. II of Act XV of
J°^- Dhokdiba Krishnaji Patel v. Ram-
«^«DRA Bhagvat . I. L. R. 5 Bom. 554

! ~ ■ Suit for specific

■Wiftte property— Suit for a legacy. A testator

LIMITATION ACTJ(XV OP 1877)-

Schedule 11— contd.
Art. 49 — contd.

contd.

bequeathed certain specific moveable property to
A. B applied for and obtained a certificate under
Act XXVII of 1860 on behalf of the testator's
widow, and took possession of the property be-
queathed. A appealed and the case was remanded
for re-trial. On the 27th of March 1 87.3, the former
order was cancelled and a certificate was granted to
A. On the 19th of August 1873, B was directed
to deliver up the property to C, who had purchased
itfrom J. On the 22nd of March 1878, C'instituted
a suit to recover the property : — Held, that the suit
was barred under Art. 49 of the Limitation Act.
Art. r23 of the Limitation Act only applies to cases
in which the property sought to be recovered is not
only a legacy, but is also sought to be recovered
as such from a person who is bound by law to pay
such legacy, either because he is the executor of
the will or otherwise represents the estate of the
testator. Issur Chunder Doss v. Juggut
Chfnder Shaha . . I. Ii. R. 9 Gale. 79

5. -— Cause of action —

Suit by Mahomedan lady to recover property from
husband after divorce. In a suit by a Mahomedan
lady against her husband after divorce for recovery
of property belonging to her which her husband
held before divorce, the cause of action to the wife
arose at the time of the separation. Abdool Ali
alias Shoageea v. Ktjrrumnissa 9 "W. R. 153

Suit for com-

pensation for attachment before judgment — Limita-
tion Act, Sch. II, Art. 36 — Suit for damages. In a
suit by A against'5, the property of 5 was attached
before judgment in November 1888. The suit was
dismissed in October 1889, and an appeal by the
plaintiff was dismissed in July 1890. B now sued
A in September 1892 for damages occasioned by the
attachment before judgment. Held, that Art. 49
was ajapUcable, and the cause of action having
arisen in 1888, the suit was barred. If the two
years' limitation provided by Art. 36 was applicable
as for a tort, the suit was still barred by limitation.
Manavikraman v. Avisn>AN Koya

I. L. R. 19 Mad. 80

7. Suit for damage

to property — Property in custody of person other
than owner — Damage to ship by collision. Art. 49
of Sob. II of the Limitation Act (XV of 1877)
applies only to suits in respect of property in the
hands of some other person, and not to suits in res-
pect of property in the plaintiff's own possession,
and the injury to property there mentioned is
limited to cases of injury to property while in the
custody of some person other than the owner.
Essoo BiLiYAJi V. Steamship " Savitri "'

I. L. R. 11 Bom. 13

8. and Art. 36 — Suit for damages

for wrongful conversion — Injury to moveable pro-
perty. Plaintiff was the owner of a house mort-

( 7071 )

DIGEST OF CASES.

( 7072 )

LIMITATION ACT (XV OF 1877)— contd.
Schedule II— contd.

Art. 4:9— contd.

gaged to defendants. On the 22nd August 1885,
defendants sold the house by auction under a
power of sale contained in the mortgage and gave
possession to the purchaser. On the 2nd Septem-
ber 1887, plaintiff sued the defendants to recover
the value of certain timber which was stored in the
house and not mortgaged, and which plaintiff alleg-
ed the defendants had taken possession of and
converted to their own use. It was proved that
the timber was in the house when defendants took
possession from the plaintiff and defendants did not
account for it. Held, (i) that jjlaintiff was entitled
to recover from the defendants the value of the
timber ; and (ii) that the suit was not barred. Art.
49 and not Art. 3d of Sch. II of Limitation Act
being apphcable to it. Passanha v. Madkas
Deposit and Benefit Society

I. L. R. 11 Mad. 333

9. and Art. 116 — Suit to recover

title-deeds left with a 'inortgagee after redemption
— Deinand and refusal — Cause of action. After
the redemption of a mortgage, the title-deeds of
the mortgage premises were left with the mort-
gagee, who refused to return them on demand made
by the mortgagor. The mortgagor now sued to
recover possession of them : — Held, that the
Limitation Act, Sch. II, Art. 49, was applicable to
the case, and that time began to run from the
date of the mortgagee's refusal. Stjbbakka v.
Maruppakkala . I. L. R. 15 Mad. 157

10. Suit for damages

for cutting and'carrying away crops — Act XV of 1877,
Sch. II, Arts. 36, 39, 48, and 109. In a suit for
damages for cutting and carrying away crops : —
Held, by the Full Bench (Rampini, J., dissenting),
that such suit does not come within the terms of
Art. 30 of Sch. II of the Limitation Act (XV of
1877). Per Maclean, C.J. (Trevelyan, J. con-
curring)— Assuming that the case does not come
within the terms of Art. 39, the case is governed
by Art. 49. The crops, though immoveable in the
first place, become specific moveable property
when severed, and the fact that the severance was
a wrongful act does net make any difference.
Per Maopheeson, J. — The case is governed by
Art. 49 or 48, as the crops, after they had been
cut, come under the description of specific move-
able property. Possibly also the case might be
brought under Art. 109, if it is not brought
under Art. 39. Per Ghose, J. — Art. 49 apphed
to this case. Sural Lai Mondal v. Umar Haji,
I. L. R. 22 Calc. 877, followed. Per Rampini, J.
{dissentiente). The suit as framed not being one
for compensation for trespass, Art. 39 does not
applj'. Art. 48 or 49 also does not apply, as they
deal with property which is ah initio moveable,
and cannot be held apphcable unless the first wrong-
ful act, viz., the conversion of the immoveable
into moveable property, be disregarded. Art.
109 also does not apply, as it referred to a case in i

LIMITATION ACT (XV OF 1877)-_ft

Schedule TL~ccmtd.

Art. 43— contd.

which possession of immoveable property
withheld. Art. 36 therefore applied to the c
Essoo Bhayaji v. Steamship '' Savitri," I £
11 Bom. 1.33, referred to. Pandah Gazi v .
nudi, I. L. R. 4 Calc. 665, dissented from
Trevelyan, J. Mangijn Jha v. Dolhin Go
KoER . . . I. L. R. 25 Calc. <

2 C. W. N. I

"• Claim to rec

goods m hands of third parties— Alternative d

for value as compensation. In execution c

decree obtained by the defendants against ont

in the Court of SmaU Causes, certain goods v

attached to which plaintiff preferred a claim. 1

claim being disallowed, plaintiff filed in the (

Civil Court, Madras, a suit for, and obtainei

declaration of, his title to the goods, but prioj

the date of the decree, namely, in October 1895,

goods attached had been sold by the Court

Small Causes, and certain third parties had beo(

I purchasers thereof. On plaintiff, in Decen

{ 1897, suing " for the recovery of the goods or t

I value as compensation :" — Held, that the s

I being framed for the recovery of specific m6veil

j property, was governed by Art. 49 of Sch. II of i

Limitation Act, 1877, and was therefore not ba ■

I by hmitation. The alternative prayer for i

value of the goods as compensation must be i.i

as ancillary to the main rehef asked for witbe

ference to s. 208 of the Code of Civil Procedure, ii

did not alter the character of the suit or bri' i

within any other category of the Schedule. MitJ

GESA Mudali v. Jothabam Davay

I. L. R. 22 Mad. 8
12. Wrongfully 'e

moving specific property — Mortgage — Mortgag Oj
interest in tenancy in common by one of twro
tenants — Deterioration of mortgagor's interesihi,
act of other co-tenant — Suit for damages by vt-
gagee against wrong-doer — Maintainability. K^
was a tenant in common with the defendant. '
gaged her interest to the plaintiff. The i
instituted a suit against K for the recovery
mortgage amount by sale of the mortgatji
perty. Pending the appeal in that suit,
fendant cut down all the trees on the lai
appropriated the same to himself. On tli>
of K's interest in the land which took
after the removal of the trees, the pi
realised only a portion of the decretal am
The mortgagee now instituted the present
against the defendant for the damage suffc
him by reason of the defendant having ap] ■
ted K's share of the wood. The suit was filed
three years of the act complained of.
that the suit was maintainable. From th'
of lending his money, the mortgagee, whet
or out of possession, acquires the right t
the mortgaged property secured from delt
tion in the hands of the mortgagor or l

( 7073 )

DIGEST OF CASES.

( 7074 )

IMITATION ACT (XV OF 1877)-ccn/d.

Schedule 11— contd.

Art. 49 — concld.

ler person to whose rights those of the
)rtgagee are superior : — Held, also, that the
it was not barred by hmitation. It was not the
t of cutting down the timber, but the subsequent
propriation of the wood by the defendant, which
jht to have been left for the share of the mort-
gor, that operated to the injury of the plaintiff,
mitation began to run from the date when the
■endant appropriated the wood to himself.
vAPPA Reddi v. Kuppusami Reddi (1905)

I. L. R. 28 Mad. 20

Cause of action

se$ uhen defendant's possession hecomes wrongful
Possession by Magistrate is possession for rightful
ner. Under Art. 49, Sch. II of the Limitation
t, time begins to run from the time when the
perty is wrongfully taken. Where property
eized by a Magistrate, tlie property passes into
il custody and such custody is for the benefit of

rightful owner. Time begins to run against
li owner only when by an erroneous order of the
jistrate the property is delivered to some other
ens and it is so even when such other person had
a in wrongful possession previous to the seizure
;he Magistrate. jMvdvirapa Kulkarni v. Fakir-

Kenardi, I. L. E. 7 Bom. 427, distinguished.

illASWAMY AyYAR v. MuTHUSAMY AyYAR

j6) . . . I. L. R. 30 Mad. 12

5. . Government pro-

ory notes held by defendant for plaintiff —
'ngful disposal of notes — Pledge — Subsequent
t'liid and refusal — Wrongful detention, when com-
t^:cs. The defendant, who held certain Govern-
1 1 promissory notes in trust for the plaintiff,
I ijed the same for his own purposes and later

I when asked by the plaintiff, refused to deliver

II up •.-—Held, that a suit by the plaintiff to
-• rer the notes or their value from the defendant
'governed by Art. 49 of 8ch. II of the Limi-
i|n Act and time commenced running from
bdate of refusal, notwithstanding that the
e'ldant had wrongfully parted with the notes
eje that date. The detention of the notes
t'tne wrongful from the date of refusal to
B^Jr them up. Wilkinson v. Verity, L. R. 6 C. P.
'toilowed. GoPAL Chandra Bose v. Surendra
Aj DuTT (1908) . 12 C. W. K". 1010

"I Art. 51 (1871, art. 50). The suits

!' ed to in this article were formerly governed
Fi 9 of s. 1 of the Act of 1859 : and this article
*]> to be founded on the cases decided on that

^ BoiDoNATH Shah v. Lahenissa Bibee.

7 W. R. 164
PP v. Kttbeer Mundul . 9 "W. R. 209
Art. 52 (1871, art. 51— Act

Goods sold by wholesale

i 1859, s. 1, cl.
^OL. III.

LIMITATION ACT (XV OF 1877)— confei.
Schedule II — contd.

Art. 52— contd.

and retail. Under Act XIV of 1859, there was

a distinction between goods sold by retail and

those sold by wholesale, the former being specially

mentioned in cl. 8 of s. 1, and it was a question

under that Act whether three years or six years'

limitation applied to a sale of goods wholesale ;

three years being finally held to be the propej

period. Lal Mohun HoLDARr. Mahadeb Kate e

B. L. R. Sup. Vol. 909

9 W. R. 193

Chundee Churn Paul v. Ramnarain Sen

Cor. 8
Act XIV of 1859,

s. 1, cl. 8 — Articles sold by retail. Goods supplied
to a dealer for the purpose of retail sale by him
were held to be not " articles sold by retail"
within the meaning of cl. 8, s. 1, Act XIV of 1859.
MoTHOORA Lall Paul v. Chrinerash Dutt

3 W. R. S. C. C. Ref. 24
GoPAL Chunder Shaha v. Sinaes

8 W. R. 4
Cases of articles sold by retail are —
BuLDEO Doss Johurry v. Sreenath Sein

1 Ind. Jur. O. S. 114
Shama Churn Lall v. Collector op Tirhoot
1 W. R. 308
Bucha Gope v. Collector op Tirhoot

7 W. R. 102
There is no distinction made in the present Act
between sales by wholesale and sales by retail.

3. — , Goods supplied

on credit and payments made on account from time to
time. When a tradesman supplies goods from time
to time on credit to a customer who makes payments
from time to time on account, no fixed period of
credit being agreed upon, the cause of action foe
purpose of limitation must be taken to arise on the
date when each item claimed was supphed.
Satcowree Singh r. Kristo Bangal

11 W. R. 529

4. Suit on contract

for the supply of pictures at various times subject to
approval of each picture. Where the plaintiff, a
native artist, agreed to supply, and the defendant
agreed to purchase, pictures as ordered from time
to time, subject to the approval of each picture by
the defendants, the prices to be fixed on dehvery and
acceptance: — i/fW, that a distinct contract became
complete in respect of the pictures as they were from
time to time delivered and approved of, at the price
then fixed, and that the case came within cl. 9, s.l,.
Act XIV of 1859, and not wthin cl. 8 as being a sale
of articles by retail. Virasvami Nayak v. Say-
ajibabay Sahiba ... 2 Mad. &

5. — and Art. 120— Limitation for

suit against son on original debt or on decree. Plaint-
iffs, in 1896, obtained a decree against the fathof

10 Q

( 7075 )

DIGEST OF CASES!

7076 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — cmid.

Art. 52— concld.

of the present defendants, who died in 1897.
Execution of that decree was refused as against the
family property in the possession of the defendants.
Plaintiffs in 1899, instituted the present suit against
defendants and obtained a decree. Questions
having been referred to the Full Bench : — Held, (i)
that, independently of the debt arising from the
original transaction, the decree against the father,
by its own force created a debt as against him
which his sons, according to the Hindu law, were
under an obligation to discharge, unless they
showed that the debt was illegal or immoral ; (ii)
that if the suit had been brought on the original
cause of action the article of limitation applicable
would have been the same as against the father,
namely, Art. 52; but as the suit had been brought on
the cause of action arising from the decree against
the father, the article applicable was 120. Observa-
tions by Bhashyam Ayyangak, J., on the obliga-
tion of a son, under the Hindu law, to discharge
debts incurred by his father. Periasami Muda-
LiAR V. Seetharama Chettiar (1904)

I. li. R. 27 Mad. 243

Art. 53 (1871, art. 52)—

LIMITATION ACT (XV OF 1811)—contd
Schedule II — contd.

This article follows the case of Satcowree Singh
V. Kristo Bangal . . 11 W. R. 529

and Art. 52Suit for price of wood

supplied under contract. A suit was brought by
P against the Elgin Mills Company for recovery of
the price of wood supplied under two contracts,
each of which contained a clause by which the
plaintiff contracted to indemnify the defendant
for loss arising by reason of failure on his part to
supply the wood as contracted for. No wood
was supplied after the 11th November 1879. The
suit was brought on the 10th October 1882. In
January 1883, the jiartners of the Elgin Mills
Company were, on their own application, brought
upon the record as defendants. Defendants
claimed a set-off as damages for loss incurred by
the plaintiff's failure to supply all the wood con-
tracted for, such loss having arisen on the 25th
October 1879 and subsequently :—Z?e7rf, that Art. 53
and not Art. 52, Sch. II of the Limitation Act was
applicable to the plaintiff's claim, the intention of
the parties having been that the price of wood was
not claimable as of right on the date of its being
suppHed, but rather when the contract was com-
pleted by the whole wood being supplied, or when
the contract came to an end. Pragi Lal v.
Maxwell . . . I. L. R. 7 All. 284

Art. 56 (1871, art. 55)—

1. • Suit for work and

labour done — Cause of action. Where no law,
special custom, or agreement is shown, making the
remuneration on a joint contract for labour to be
done payable in advance, the cause of action
accrues from the time when the labour was per-
formed. Perladh Sen v. Runjeet Roy

W. R. 1864, 68

Art. 56— conoid.

Suit to reci

sums expended by zamindar for irrigation. In a i
to recover sums expended by the zamindar at
defendant's request for the repair of a tank for
irrigation of lands held by them in common w
him, it was contended that the suit, whether view
as one for contribution or upon a contract, v
barred by limitation in respect of all payments ma
bj' the zamindar more than three years before ■
suit : —Held, that the suit, being for work a
labour done at their request, was not barred
limitation under Art. 56 of the Limitation j.
which applied to the suit. Sttndaram r. Sank;
I. Ii. R. 9 Mad. 3

Art. 57 — Suit for money len

Limitation for a suit to recover debt personally f)
the mortgagor lohere mortgage-deed contains no j
sonal undertaking for repayment. By a registe
mortgage-deed dated the 11th May 1876,
defendant mortgaged certain land with posses
to the plaintiff for a term of five years, the ir
gage-deed stipulating that the plaintiff wasi
enjoy the profits, pay the assessment for it,
restore it to the defendant on reiDayment of the cl'
But no personal undertaking to pay was givei:
the defendant. The land was sold by the revt
authorities for arrears of assessment due from)
defendant for certain other Jands of the defencli
I'he plaintiff now sought to recover the debt pen
ally from the defendant. The Court of firs' i
stance dismissed the plaintiff's claim, on the gr;c
that the failure, on the part of the plaintiff, tea
the arrears of assessment disentitled liim to reci
the debt from the defendant personally. I
plaintiff appealed to the District Judge, whr
ferred the case to the High Court -.—Held, a
the mortgage consideration for the debt hii
failed, the debt was recoverable within three ;*
— the registered mortgage-deed containin i
personal undertaking by the defendant (mortg o
to pay the loan. Sawaba Khandapa v. /-J,
JoTiRAV . . . I. L. R. 11 Bom.t/

2. and Art. 120— Suit on ; j

of moveable property — Prayers in plaint hot '
personal decree and for right to enforce >'~'
against property pledged. A suit on a pled '
certain moveable property, made in respe't
loan of money on the 10th February 1887, v
tuted on the Mth December 1891. Tli<
praved for a decree for the money lent agcu..
defendant personally, and also that the c^r'i
might be enforced against the article pltj-*
Held, that, so far as the prayer for a personal P
was concerned, the suit was governed by At •
of Sch. II of the Limitation Act, and was bt;^
but so far as the plaintiff sought to enfoi] "
charge against the property pledged, the si,
not within that Article, but withm Art. liU '
same Schedule, and was therefore not t
NiM Chand Baboo v. Jagabundhtj Ghose ^
I. L. R. 22 Ca '

( 7077

DIGEST OF CASES.

( 7078 )

LIMITATION ACT (XV OF 1877)— conW.

Schedule Il—contd.
Art. 57— coaid.

3. and Art. 120 — Loan on security

of tnoveahle property — Suit to recover money by sale
oj property pledged and also [rom the defendant per.
fotially. Where a plaintiff who had lent money on
tliesecurity of moveable property sued to recover
the money both by sale of the property pledged, and
ilso asked for a decree personally' against the
defendant, should the amount realized by the sale
prove insufficient, it was held that, so far as the
ilaint prayed for a decree against the defendant
'Tsonally, Art. 57 of the second Schedule of Act
!\.V of 1877 was applicable ; but, so far as the
ilaintiff sought to enforce his charge against the
•roperty pledged, the suit fell within Art. 120.
yim Chand Baboo v. Jagabundhu Ghose, I. L. R.
'2 Cole. 21, followed. M.-vdan Mohan Lal v.
ajiHAi Lal . . I. L. R. 17 All. 284

Indian Contract

let {IX of 1S72), s. 176 — Pawnor and pawnee —
'uil to recover balance of debt after sale of articles
awned — Limitation. Held, that the limitation
pplicable to a suit brought by a pawnee to
■cover the balance of his debt after accounting
ir the proceeds of the sale of the articles pledged

that prescribed by Art. 57 of the second Schedule
) the Indian Limitation Act, 1877, namely, three
;ars, and the terminus a quo the date of the loan.
Indan MoJuin Lal v. Kanhai Lal, I. L. R. 17
II- 2S4, and Ram Chandra v. Antaji, Bom. P. J.

SS6) 161, referred to. Ai.i Khan v. Debi
JRASAD (1901) . . I. L. R. 24 All. 251

'5. ^— — ; Arts. 57, 62,89

"d 120 — Limitation- — Liability of agenfs sons and

'indsom — Compromise — Permission of Court —
;* of Civil Procedure {XIV of 18S2), s. 373—
vincipal and agent — Accounts — Cause of action.

here an agent from time to time withdrew
oney from the chest of his principal's estate and

iced it in the chest of his own estate, doing so
■ to the day of his death, and there was no
Ijustment or settlement of accounts : Held, in a
1 1 brought by the principal against the sons and
,|tnd8ons of the agent, after his death, to recover

' money so withdrawn, that the cause of

ion accrued after the death of the agent and the

riod of hmitation was six years under Art. 120,
'i. II, of the Limitation Act. In a case
•e this the cause of action would not accrue so
' 'D asany particular sum of money was transferred
1 m one estate to the other, but the agent con-
•ued to hold the money as such under an obhga-
V to render accounts when called upon and to
Ij^ any balance which might be found to be due.
-j) sons and grandsons of such agent on his death
^iild become liable to pay any such balance on
I ground of their pious liability. Articles 57,
♦jvnd 89 of Schedule II of the Limitation Act do
E apply to such a suit. Rao Girraj Singh v.
»si Raghubik Ktjnwar (1909)

I I. L. R. 31 All. 429

I LIMITATION ACT (XV OF 1877)— conti.
Schedule II— conW.
Art. 57 -conc/d.

and Art. 1'2,0—Contract Act

{IX of 1872), s. 176— Suit for sale of property
pledged — Pledgor's right to sue for sale. Plaintiff
lent money on the pledge of jewels, and sued more
than three years and less than six years from the
date of the pledge to recover the amount lent, by
j sale of the jewels and from defendant personally.
! Held {per Subrahmania Ayyar and Benson, </./.),
that plaintiff was entitled to sue for the sale of the
j property pledged to him notwithstanding that he
was also entitled under s. 17fi of the Contract Act,
1 to sell the property without reference to the Court.
Held, also, that the claim to proceed against the
property pledged was governed by Art. 120, and the
claim to proceed against the debtor personally was
governed by Art. 57 of Sch. II of the Limitation
Act. Per Davies, ./. — That the claim to proceed
against the debtor personally was governed by Art.
57 and was barred, but that in so far as the suit was
for a sale of the pledged property that was merely
an incident in the nature of an accessory to the
right to recover the debt, which became barred
with the right of suit for that debt. The right of
sale, however, remained. Vitla Kamti v. Kalckara,
I. L. R. 11 Mad. 153, commented on. Maha-
LiNGA Nadar V. Ganapathi Scbbien (1904)

I. L. R. 27 Mad. 528
Art. 58 — Suit to recover the value of

hundies given as a loan — Limitation — Terminus
quo. Held, that the mere transfer of hundis for
the purpose of making a loan of their value, when
reahzed, does not amount to a loan, until money
has been reahzed by the transferee. Garden v.
Bruce, L. R. 3 C. P. 300, referred to. Ko.mai,
Prasad v. Savitry Bibi (1905)

I. L. R. 28 AH. 54

Art. 59 (1871, art. 58)—

See Dekkhan Agriculturists' Act. 1879,
s. 72 . . .1. L. R. 5 Bom. 647

Under Act XIV of 1859, cases of money lent or
deposited to be repaid on demand were governed
by cl. 9 or cl. 16 of s. 1 of that Act, and the decision
as to whether the cause of action arose at the
date of the loan or from the date of the demand
were conflicting.

See Brammamayi Dasi r. Abhai Charan C'huw-
DHRY . 7 B. L. R. 489 : 16 W. R. 164

POOENO ChUNDER DuTT v. GoPAL CniNDER

Doss . . . . . 17 W. R. 87

Tabini Prasad Ghose v. Ram Krishna Baner-

jEE . .6 B. L. R. 160: 14 W. R. 224

N.4.SIR BIN Abdul Habib Faz.^l r. Davabhai
Itchach.vnd ... 10 Bom. 300

Jaffree Begum v. Mahomed Zaho(Jr Ahsun
Khan 2 N. W. 409

Heerun v. Mariun . . 14 W. R. 87
deciding that it arose on demand.

10 Q 2

( 7079 )

DIGEST OF CASES.

( 7080 )

lilMITATIOlSr ACT (XV OF 1817}— contd.
Schedule II — contd.

Art. 59— eontd.

And Pakbati Chaean Mookerjee v. Ram-

NAKAYAN MaTILAL

5 B. L. B. 396 : 16 W. R. 164 note

Abdul Ali r. Takachand Ghose

6 B. L. K 292

s.c. on appeal. Tarachand Ghose v. Abdul
Ali . 8 B. L. R. 24 : 16 W. R. O. C. 1

HiNGUN Lall V. Debee Pershad

24 W. R. 42

deciding that it arose on the date of the loan or
deposit.

Under Art. 58 of the Act of 1871, the cause of
action in cases of money lent on demand arose from
the date of the demand, cases of money deposited
on demand not being separately provided for.
Under Art. 59 of the present Act, the cause of action
in cases money lent on demand arises from the
date of the loan ; in the case of money deposited
on demand, from the date of the demand (Art. 60).

1. and Arts. 60 and 132—

Claim against insolvent estate subject to mortgage
— Suit for money- — Demand. On the 25th June
1874, A, the father of B, having mortgaged the
factory X to *S d; Co. to secure repayment of R 12,000
advanced, died on the 7th September 1874, leaving a
wiU whereby he appointed his wife C sole executrix,
and devised to her factory X. On the 16th Septem-
ber 1876, another mortgage was executed, whereby
C further charged X with the repayment of further
advances, and B mortgaged factory X as a further
security, the mortgage containing a stipulation for
repayment, within one month after notice, of the
balance due in excess of R 12,000. B became
insolvent in July 1882. No demand was made.
On the 5th January 1877, a balance of R27,552
remained due which with interest up to July 1882
was increased to R42,564. The liquidators of S
tfc Co.. who had in the meantime dissolved part-
nership, sought to prove against B's estate for
R30,564 after deducting the R 12,000 advanced to
A. Held, that the claim to prove against the estate
was in the nature of a suit, not to enforce payment
of money charged on immoveable property under
Art. 132, Act XV of 1877, nor was it Avithin
Art. 60, but it was a suit for money, and was
governed by Art. 59 of the Act. In the matter
of Agabeg . . . 12 C. L. R. 165

2. Native banker and

customer — Deposit — Loan — Suit fo recover money
lodged with a native banker more than three years
after lodgment. The relationship between a native
banker and the person depositing money with
him in the ordinary way of business is
that of borroM-er and' lender, and the money
lodged can be recovered as money lent. Art. 59
of the Limitation Act (XV of 1877) applies to such a
transaction. The plaintiffs, who were members of
the Dalvadi community, sued in 1883 to recover

LIMITATION ACT (XV OF 1877)— contd

Schedule 11— contd.
Art. 59 — conoid.

from the defendants the sum of R 2,61 1-3-6 as foui
credited to their account in 1880 by the defendan'
father, with whom the community had lodged
sum of R 2,320 in 1874. They aUeged that the su
was lodged on the condition that it was to
returned with interest on demand. It appear
that small sums were paid by A' to the plainti
from time to time, and no demand had ever bci
made during the lifetime of A' for repayment . TJ
defendants denied the aUeged condition, ai
contended that the suit was barred. The Court
first instance awarded the plaintiffs' claim. T,
defendants appealed to the Assistant Judge, wl
reversed the decree, being of opinion that the trac
action was a loan and not a deposit, and that tl
suit was barred. On appeal by the plaintiff,?
the High Court : — Held, confirming the decree
the lower Appellate Court, that the plaintiff's si
was barred by Art. 59 of the Limitation Act (XV
1877). The plaintiffs contended that the men
was lodged as a " deposit " and not as a loan, a'
that Art. 60 of Sch. II of the Limitation J
applied. They relied upon the following c
cumstances as showing the nature of the transf
tion, viz., (i) that it was arranged that the men'
should remain until a favourable opportun ■
should occur for applying it to the building o).
dharmshala ; (ii) that interest was to be paid up
it ; (iii) that the account was to be annually settle;
(iv) that it was to be withdrawn in one sum. — Hi,
that these circumstances, if proved, did 'i-
necessarily deprive the transaction of the characr
of a loan by creating a fiduciary relations )
between the parties (which is essential to a deptt
in its technical sense), and thus distinguishing t
from the ordinary deaUngs between native bants
and their customers. Ichha Dhanji v. Nate
I. Ii. R. 13 Bom. B

Arts. 59 and 60— ,

See fast. Art. 145 . 7 C. W. M". <^

Art. 60—

See the Note and the cases referredpo
under Art. 59.
This Article (60) is not in accordance withke
ca.ses of Parbati Charan Mookerjee v. Rk"
Naeayan Motilal

5 B. L. R. 396 : 16 "W. R. 164 E»

and HiNGUN Lal v. Debee Pershad

24 W. Ef*

which were decided under Act XIV of 1859.

1. — Cause ofcudit-

Deposit — Demand. Where money has been [e-
posited by A at interest ^ith B, repayable or- •
mand, and interest is paid accordingly, the c:;'
action arises not on the date of the deposit, I
the date of demand. Tarini Prasad Geo.'- ■
Ram Krishna Baneejee L ,

6 B. L. R. 160 : 14 W. B. ^

( 7081 )

DIGEST OF CASES.

( 7082 I

iIMITATION ACT (XV OF 1877)— contd.
Schedule U—contd.

Art. 60— contd.

Banker and cus-

yvier — Principal and agent — Cause of action — De-
and. A deposited certain moneys with B, a
anker, and drew against them, but not to the full
itent; the residue was employed on A^s account by
according to an agreement between them : — Held,
lat, besides the ordinary relation of banker and cus-
imer, there subsisted also between them that of
■incipal and agent ; that therefore the right of
; ion arose at the time of demand. Nasir bin
BDUL Habib Fazal V. Dayabhai Itchachand

10 Bom. 300

8, Money deposited —

mnnd — Cause of action. Where a mortgagor
lows the amount of his loan to remain in the
nds of the mortgagee, taking a receipt for it : —
/(/, that the transaction should be regarded as a
posit of money with a banker or agent, repayable
demand without interest, and the suit is not
rrcd if brought within three years after demand,
suit to recover the balance of such moneys is in
• nature of a suit to recover the amount of de-
jit. Jafpbeb Begtjm v. Mahomed Zahoor
SUN Khan . . . 2 N. W. 409

1. ■ Cause of action —

mand. Plaintiff, having received from her
thers a sum as an equivalent for her share in her
hcr's estate, made over the money to one of the
thers (E), to be invested in the common stock
the purposes of trade, it being agreed that she
■. to receive her proportion of the profits. A few-
is after this E died, and then, a disagreement
>'iirring in the family, rescrt was had to arbitra-
|i. The arbitrators found that certain sums were
i\ to plaintiff and her sisters by the three
>j:her8, but they were unable to settle how much.
^ ntiff, being unable to recover her due, brought
i: suit for principal and profits :—i/eW, that
' ntiff's cause of action arose when she made
I' demand for the money after the arbitration
^ rd, and that limitation would run from no
iiier date. Heerttn v. Maeitjn . 14 W. R. 87

Deposit — Loa7i

f\yable on demand. The word "deposit " in the
'|itation Act (XV of 1877), as distinguished from
' m, refers to cases where money is lodged with
'I her under an express trust, or under circum-
^:es from which a trust can be implied. Ram
•^^ Bhunjo v. Brohmoyi Dasi 6 C. L. R. 470

1 7 — Moneii deposited

H 'wrer and customer — Money lent — ''Deposit " —

,JMt "^Cause of action— Demand. The plaintiff
e''pited from time to time with the firm of the
e'|.dant. who carried on a banking business,
»jus sums of money, the amounts deposited
>elng interest, and at times certain sums being
"drawn by the plaintiff, and an account of the
*;i«ecf principal and interest being struck at the
O'jJf each year and presented to the plaintiff.

LIMITATION ACT (XV OF 1877)— contd*
Schedule ll~contd.

Art. eO—contd.

The date of the first deposit was not known, but it
was some time previous to 1282 (1875). A demand
was made for the whole amount of the principal
and interest in Bhadro 12:)2 (August-September
1885), and the demand not having been complied
\\ith, a suit to recover the money was brought on the
8th March 1886 : Held, that Art. 00 and not Art. 59
of the Limitation Act was applicable to the case *
the cause of action therefore arose at the date
of the demand, and the suit was not barred. The
dictum of White, J., in the case of Earn Sukh
Bhunjo v. Brohmoyi Dasi, 6 C. L. R. 470, that
the "word ' deposit ' in the Limitation Act as dis-
tinct from ' loan ' points to cases where money is
lodged mth another under an express trust or under
circumstances from which a trust may be implied,"
dissented from. Ishub Chunder Bhadtri v.
JiBUN Kumari Bibi . I, L. R. 16 Cale. 25

- and Art. 59 — Money deposited —

customer — Moiiey lent — Deposit —

1 — Demand. A at the suggestion

with him certain

Banker and
Cause of actiort

of B, a shopkeeper, deposited
sums of money on the terms that the money should
be repaid \\dth interest on demand. It apjieared
that B was in the habit of receiving deposits from
his customers on such terms. A having died, his
widow and administratrix sued more than three
years after the date of the deposit to recover the
amount deposited, the money having been de-
manded within three years of the date of the suit :
— Held, that the suit was governed by the Limita-
tion Act, Sch. II, Art. 60. and not by Art. 59, and ac-
cordingly was not barred by limitation. Pek-
undevitayar Amm-al v. Na31malvar Chbtti

I. L. R. 18 Mad, 390

Deposit — Loa n —

Demand. The plaintiff claimed to recover from the
defendant, who was his grandfather, the sum of
R4,917, which was the amount standing to liis
credit in an account in the defendant's books.
In November 1869, the plaintiff being then
one year old, his mother (the defendant's daughter)
paid over to the defendant the sum of RG50, and at
her request the money was credited in the books
of the defendant's firm in the name of her son, the
plaintiff. A further sum was similarly paid over
by her in December 1871, and at her request was
credited to the same account. The plaintiff
alleged, and the Court found, that these sums were
y)resents which had been made to him on his birth-
day and other auspicious occasions. The said sums
had been carried over from year to year in the
firm's books, the interest being added each j-ear, but
no payment had ever been made to the plaintiff,
or on his behalf, out of the sum so standing to his
credit. Cr^mpound interest had been allowed in the
account, and, on the 9th November 1893, the
amount standing to the credit of the plaintiff was
R-4,917. The plaintiff contended that the money
had been paid to, and accepted by, the defendant

( 7083

DIGEST OF CASES.

( 7084 )

LIMITATION ACT (XV OF 1877)-

Schedule 11— contd.
Art. 60 — concld.

zontd.

as a deposit to be held" in trust for him. The
defendant alleged that the money in question
had been lent to him bj' the plaintiff's mother,
and contended that the plaintiff's claim was barred
by limitation : — Held, that the plaintifi's claim was
not barred. The defendant stood in a fiduciary
position to the plaintiff, and therefore there was a
deposit within the meaning of Art. 60 of the Limit-
ation Act (XV of 1877), and limitation did not com-
mence to run until dem.and. Dorabji Jehangir
Randiva v. Muncheeji BomaivJi Panthaki

I. L. E. 19 Bom. 352

Held, in the same case on appeal, affirming the
decision of the Court below, that the defendant
had held the money not as a loan, but as a deposit;
that Art. 60 of the Sch. TI of the Limitation Act
(XV of 1877) applied ; and that the plaintifi's claim
was not barred. Mitjccherji Bomanji Panthaki
V. Dorabji Jehangir Randiva

I. L. R. 19 Bom. 775

Arts. 60 and 64 — Money payable on

demand — Deposit as a trustee — Money found dve
on account stated. A suit was brought by the
plaintiff on the 28th June, 1897, to recover a
certain sum of money from the defendant, on
the allegation that there was a registered agree-
ment bet\veen the parties, whereby it was agreed
that the plaintiff was to use a godowTi belonging
to the defendant for the purpose of storing jute
purchased by him, the defendant being promised a
certain commission in return. There was also a
verbal agreement to the effect that sums of money
would be sent by the ]>laintiff to the defendant,
who would hold the same in deposit as a trustee ; and
that on demand the defendant would pay to the
plaintiff the balance left after making the necessary
payment for the purchase of jute. On the 19th
April, 1894, the defendant submitted an account,
which showed that a certain sum of money remained
surplus in his hands. The defendant, not having
allowed the plaintiff to carry on the busiress in his
godown in 1894, the plaintiff demanded the said sum
of money in July, 1894, which the defendant did not
pay. The defence inter alia, ^^as that the suit Mas
barred by limitation. Held, that the- defendant
was not,' on the facts stated in the plaint, an agent
of the plaintiff, and that Art. 60, Sch. II, of the
Limitation Act might apply to the case. Ishur
Chunder Bhaduri v. Jibvn Kumari Bibi, I. L. B.
16 Calc. 25, referred to. Iazarus v. Krishna
CnrNDER De (1900) . I. L. R. 28 Calc. 393

— Art. 61 (1871, art. 59)—

,SV^ (•( NTRIBUTION, St IT FOR — PAYMENT
OF JOINT DEBT BY ONE DEBTOR.

I. L. R. 26 Mad. 686

Money paid at

lilMITATION ACT (XV OF 1877)— confef

Schedule II — contd.
. Art. 61 — concld.

living jointly with the defendant, who was
brother, executed a bond to secure the repayment
moneys advanced to him, which moneys were i
plied by him for the joint benefit of himself and ^
defendant. In the year 1868 the plaintiff execul
another bond for the same purpose. In 1870
plaintiff and defendant separated, and the lem
thereupon s\ied the plaintiff upon the bond execu
in 1867, and obtained a decree. In 1867 the pla
iff executed a fresh bond in favour of the deci
holder, in order to avoid execution of the dec
and to retire the bond of 1868. In 1877 (wit
three years from the date of the fresh bond),
plaintiff sued his brother to recover a moiety of
sum secured thereby. Held, that the date u]
M hich money was paid by the plaintiff for the
fendant must have been before 1870, and that ih
fore the suit was barred bv limitation under
IX of 1871, Sch. II, Art. 59. Bamkristo Boij
Muddun Gopal Boy, 12 W. B. 194, follov
SuNKUR Pershad v. Goury Pershad

I. L. R. 5 Calc. I

2. S^lit to TCCA

balance of payments made on behalf of defenda -
Appropriation of payments. In a suit to recov
balance with reference to payments made by pl.'i'
iff on account of defendant, where no mn!
account or reciprocal demands existed : — 1'^
that plaintiff could not recover any items due iJi
than three j^ears prior to the date on which thei
was instituted, but that he was entitled to ml
all payments, even those subsequently mad' i
reduction of so much of his claim as was ba;c
Thakoor Pershad Singh v. Mohesh Lall

24 W. B.9

Suit for r"<

defendant's request — Hindu family — Debts of man-
ager. In the year 1867 the plaintiff, who was then

payable to the plaintiff for money paid for the dini
(inf — Suit for account — Limitation Act, Sch.^'
Art. 120. Under an award tw o persons were ^1
liable each for the payment of a moiety ofth
expenses of certain temples which Mere held jnt'l
One of the persons so made liable, allegint; "'
had paid more than his share of the exi>eii-
the other for the balance in excess of the
M'hich he was bound to pay under the
Held, that the suit Mas governed by Art. til
second Schedule to the Indian Limitation A< '
and that, although the taking of accounts inr
necessary, the suit Mas not a suit for an acco
M-hich Art. 120 of the same Schedule migh'
Bohan v. Jwala Prasad, I. L. B. 16 A
referred to. Raman Lalji Maharaj '
Lalji Maharaj . . I. L. R. 19 A-

Arts. 61, 83—

See Surety . I. L. E. 29 Al
Art. 62 (1871, art. 60)—

See Civil Procedure Code,

.3U

13C.'W.N^08!

( 7085 )

DIGEST OF CASES.

( 7086 )

JMITATION ACT (XV OP 1877)— cow^d.
Schedule II — contd.

Art. 62— con/d.

Cases now provided for by this article were for-
icrly held to be governed by the general period cf
ciitation for suits not otherwise provided for,
hich period was six years under cl. 16 of s. 1 of
le Actof 1859.

It «as so held in the case of a servant to whom
loney had been entrusted for a particular purpose,
Qd who did not make the payment he was directed
' make. Amjud Alt v. Ali Buksh 2 W. R. 122

Vhmedoollah v. Hur Churn Pandah

2 W. R. 235

L Suit for recovery

mlary — Money had and received. The defendant
ho was a batwara anieen employed by the Col-
ctor, drew from the public treasury at Backer-
mge a sum of money to pay the establishment,
it failed to pay the plaintiff who ^^■as a mohurir
ider him. In a suit against the ameen for re-
'very of his salary after a lapse of three years
om the time when the salary became due : Held,
at the plaintiff's claim was for money had and
iceived on his account, and therefore he might
ing his suit within six years from the date of such
,ceipt. Abhaya Charan Dutt v. Haro Chakdra
AS Banik . . . . 4 B. L. R. Ap. 68
s.c. Obhoy Churn Dutt v. Huro Chuxder
1SS BuxEE . . . . 13 W. R. 150

'2. , Suit for share of

Miey had and received. A, B, and C being joint

'ditors of D, A and B received in 1856 a payment

: account in respect of their share in the debt. D

|ving made default in payment of the balance,

parate suits were brought against him by .4, B,

Id C. The Court having held that the payment

IS a payment to all, A and B recovered more than

jeir share, and C recovered less. A family suit for

'rtition between A, B, and C was in 1862 com-

umised, and it was agreed that all claims between

'." parties should be considered as settled ; but it

'IS agreed that, if C should, out of an appeal

icught by him against D, have any claim ai.ainst

land B, that should be reserved. Cs appeal waa

ISfili unsuccessful, and in 1864 he brought an

tion against ..4 and B for his share of the money

id in 1S56 : — Held, that he was eniitlcd to recover

'e amount which A and B had recovered against

in excess of their claim, and that the suit was not

ned by the law rf limitation. Lt^tf Alt Khax v.

'ZALUNissA Begum . . . 9 B. L. R. 348

16 W. R. P. C. 20

rersing case of Lotf Ali Khan v. Afzuloontssa
GrM 3 W. R. 113

:3. ■ Suit for money

.i and received by one of joint decree-holders. A
jcree obtained by .4 and B was transferred by B to
without the knowledge of .4. C executed the
cree, and ,4 subsequently sued C for his share
j the proceeds. Held, that, if A had any cause of

LIMITATION ACT (XV OF 1877)-

Schedule 11— contd.

oonld.

Art. 62— contd.

action against C, it would be for money had and
received to A's use ; and the suit would be governed,
as to limitation, by Act IX of 1871, Sch. II, cl. 60.
But held, that A had no cause of action against C,
but only against B. Webor Ali v. Gaddai Behari
2 C. L. R. 165

Suit to recover

money obtained by collusion and fraud. A suit for
the recovery of money obtained by fraud and
collusion is a suit for money received by a defendant
for the plaintiff's use, and therefore, under Art. 60
of the second Schedule of Act IX of 1871, is barred
unless brought within three years of the date when
the money was received. RAOHrMoNi Audhicary
v NiLMONi Singh Deo . I. L. R. 2 Calc. 393

5. and Art. 14:7— Suit for over-

fayments under agreement — Deposit. Where there
was a contract between plaintiff and defendant
that defendant should purchase a dwelling-house
benami on account of plaintiff, and reconvey it to
plaintiff on his paying up in instalments a certain
sum of money with interest ; and plaintiff, seven
years after his last payment, sued to recover some
payments which he made in excess of his agreement,
and the first Court dismissed the suit as being bar-
red by limitation ; but the second Court decreed
the suit on the plea that the plaintiff's payments
were deposits, and fell within Art. 147 of the Sche-
dule of the law of limitation -.—Held, by the High
Court that Art. 147 applies to deposits recoverable in
specie ; that plaintiff's payment in this case was a
simple overpayment ; and that the recovery of it
was barred by limitation under Art. 60. Radha
Nath Bose v. Bama Churn Mookerjf.e

25 W. R. 415

6. ■ and Art. 118— Suit for money

received by defendant to plaintiff's use. Certain
immoveable property was attached in execu-
tion of a money-decree held by .4, dated the 22nd
August 1871, on the 1st April 1872. The same pro-
perty was subsequently attached in execution of a
decree held by B, dated the 19th August 1871,
which directed the sale of the property in satisfac-
tion of a charge declared thereby, the property
was sold in execution of this decree. The Munsif
directed that the proceeds of the sale should be paid
to B. A, who claimed them on the ground that he
had first attached the property, appealed against
this order. The Judge, declaring that .4 was en-
titled to the proceeds, reversed the ^lunsif 's order.
.4 then obtained an order from the Munsif directing
B to refund the money, which he did, and it was
paid to J. B sued A to recover the money by es-
tablishment of his prior right to the same, and for
the cancelment of the Judge's order, alleging that
the same was made without jurisdiction. Held (by
a majority of the Full Bench), that the suit was one
for money received by the defendant for the plaint-
iff's use, and was therefore governed by cl. 60,
Sch. II of the Limitation Act. Per Stuabt, C.J.

( 7087 )

DIGEST OF CASES.

( 7088 )

LIMITATION ACT (XV OP 1871)— contd.
Schedule 11— contd.

Art. 62— contd.

and Spankie, J. — That the suit was not such a
suit, but was one for which no period of limitation
was provided elsewhere than in cl. 118 of the
Schedule, and that it was governed by that clause.
Ramkishan v. Bhawani Das I. L. B. 1 AIL 333

Suit for damages

— Suit for money received to flaintiff's use.
The holder of a decree for money, which had been
sold in the execution of a decree against him, sued
the auction-purchaser, the sale having been set
aside, for the money he had recovered under the
decree. Held, that the suit was not one for dam-
ages, but for money payable by the defendant to
the plaintiff for money received by the defendant
for the plaintiff's use, to which the period of limit-
ation applicable was three years. Bhawani Kttar
V. RiKHi Ram . . ! I. L. R. 2 AIL 354
See also Ramkishen v. Bhawani

I. L. R. 1 AIL 333

and Art. 120 — Suit for iriovey.

received by the defendant for the plaintiff's
ust — Fraud. The plaintiff claimed as an heir to N
deceased, a moiety of moneys which at the time of
N's death were deposited \nth a banker and which
the defendant, the other heir to N. had received from
such banker. Held, that the suit was one for money
received by the defendant for the plaintiff's use, to
which the limitation pro%nded in Art. 62, Sch. II of
Act XV of 1877, applied, and not one to which the
limitation provided in Art. 120 applied. Kundfn
Lal v. Bansi Dhar . . I. L. B. 3 AIL 170

Failure of con-

sideration— Suit for money had and received for the
plaintiff's use — Debt. Prior to September 1879,
pecuniary dealings took place between D and B,
resulting in a debt due by the former to the latter of
R33,000, for money lent. Negotiations were car-
ried on between the parties as to the mode in which
the debt should be liquidated ; and on the 1st
September 1879 it was arranged that D should
execute a sale-deed conveying to B certain immove-
able property for R55,000, and that B should pay
this amount by giving D credit to the extent of the
debt, and paying the balance in cash. In August
1880, D sued B for specific performance of the
contract, which, alleged, he had been settled and
executed for the sale of the property. B in defence
alleged that, although certain terms and conditions
as to the sale had been definitely settled for embodi-
ment in a formal sale-deed, it was only subject to
these terms and conditions that he had been pre-
pared to complete the transaction, and that, as
they had been omitted from the document executed
by D on the 1st September 1879, he had never
accepted that document. In March 1884, the High
Court on appeal dismissed the suit, holding that
the parties had never been ad idem with refer-
ence to the contract alleged by D, and that the
document of the Ist September 1879 had never been

LIMITATION ACT (XV OF 1877)— confei
Schedule 11— contd.

Art. 62— contd.

finally accepted so as to be binding and enforcea
by law. In September 1884, B sued D for recov*
of the sum of R33,000 with interest. He contend
that, under the terms of the arrangement made
the 1st September 1879, the debt of R33,000 tl
owing to him changed its character ; that it was
longer merely the old balance due by the defenda
but having been credited in the latter' s boo
should be treated as a payment by him (the plai
iff) as a deposit on account of the sale ; that
suit was therefore one for money had and recei
by the defendant to the use of the plaintiff ; s
that the cause of action did not arise until the c
tract failed, by reason of the decree of the H
Court on 14th March 1884, dismissing the suit
specific performance. Held, that this content
must fail, and the debt must be treated as the
balance due by the defendant to the plaintiff, ir
much as bv the terms of the agreement itr
which the plaintiff set up, no deposit was payai
and the price was not to be paid till the com]
tion of the contract, and inasmuch as the plaintiff i
demanding payment, after the negotiations had f
ed, demanded it simply as for the balance of the
debt, and not as for the return of a deposit. H'
further, that the 1st September 1879, upon which t
contract set up by the plaintiff was alleged to h;(
been completed, was the latest possible date u]C
which the debt could be said to have become d-
and that, inasmuch as the present suit was t
brought until the 8th September 1884, it was bard
by limitation. Dhtjm Singh v. Ganga Ram

I. L. B. 8 AU. SI

10.

Money

Money had and received — Goods paid for before d ■
very — Short delivery — Failure of consideratt .
Money paid as the price of goods to be delivei
hereafter is money received for the use of the se r
and it is only upon failure of consideration that e
money so paid becomes money received for '-'
use of the buyer. When goods which have aheV'
been paid for are afterwards found to be sh"
delivered, the failure of consideration takes pi ■
on the date of delivery, and limitation in resf ^
of a suit to recover back the sum ovcrpiid 1
be reckoned from that date. Atttl Kristo B'^
V. Lyon & Co. , . I. L. B. 14 Calc ^7

11.

Suit to reef

purchase-money — Failure of consideration — Caus^'
action, accrual of. Purchase-money paid for*
consideration which has wholly failed is mor'
received for the use of the buyer, and a suit to ro-
ver back the money is thus governed by Art. 6i'i
Sch. II of the Limitation Act. A purchased a sh*
of joint property from a member of a Mitaksha'
family, but his suit to recover possession of it v*
dismissed on the ground that the sale, having b-u
made without the consent of the other C5-parcen'^
was void under the law. A then brought a suit''
recover back the purchase-money by reason of tt-

( 7089 )

DIGEST OF CASES.

( 7090 )

LIMITATION AC5T (XV OF 1611)— contd.

Scjiedule 11— conld.
Art. 62— confi.

ure of consideration. Held, that the failure of con-
sideration, although it did not become apparent
until the former suit was brought and failed, was a
failure from the beginning, and time ran from the
late when the purchase-money was paid. Hanu-
MAS Kamut v. Hanctman Mandttb

I. L. B. 15 Calc. 51

- Act XI of 1S59, s.

12.

11 — Suit to recover surplus sale-proceeds of a sale for
•rears of Government revenue. Where A insti-
uted a suit in November 1889 to recover from the
vecretarv of State for India in Council the surplus
:ale-proceeds of three talukhs sold for arrears of
Jovernment revenue on the 3rd of October 1877 and
vhich were in the hands of the Collector : — Held,
hat the suit was governed by Art. 62, Sch. II of the
Jmitation Act, and was therefore barred. Secee-
AKY OF State for India v. Fazal Ali

I. L. E. 18 Calc. 234

See Secretary of State for India v. Guru

'roshad Dhur . . I. L. B. 20 Calc. 51

13. and Arts. 97, 120— .SwiY for

wney paid by a pre-emptor under a decree
>r pre-emptio7i which has become void — Suit
^tr money had and received for plaintiff's use — Suit
>r money paid upon an existing consideration
•hich afterivards fails. Pending an appeal from a
ecree for pre-emption in respect of certain property
5nditional upon payment of Rl,.595, the pre-
iiptor decree-holder, in August 1880, applied for
^ssession of the property in execution of the decree,
lecing payment of the R1.595 to the judgment-
■btors out of Court, and filing a receipt given bj'
lem for the money. This application was ulti-
ately struck off. In April 1881, judgment was
von in the appeal, increasing the amount to be
lid by the decree-holder to R 1,994, which was to
> deposited in Court ^^^thin a certain time. The
i'cree-holder, did not deposit the balance thus
irected to be paid, and the decree for possession of
e property accordingly became void. In 1882 the
,'crce-holder assigned to K his right to recover
|:)m the judgment-debtors the sum of Rl,595
Wch he had paid to them in August 1880. In
pcember 1883, K sued the judgment-debtors
jr recovery of the R 1,595 with interest : — Held,
at Art. 62 of the Limitation Act did not govern
jO suit, but that Art. 97, and, if not Art. 120,
|)uld apply, and the suit was therefore not barred

limitation. KoJi Ram v. Ishar Das
I I. li. B. 8 AIL 273

N. . and Art. 132— ««/< to establish

1'™ to hereditary allowance. The parties,
i'° ^ere desais of Mohudha in addition to their
|lesaigiri " allowance, enjovcd an allo\\ ance, called
■imin sukhdi." In 1847 "the plaintiff sued the
lendant'sfatherand the Collector of Kain for a
vre of the allowance ; but as the whole of it had
m reserved by the Collector to the defendant's

LIMITATION ACT (XV OF 1877)— contd.
Schedule II— contd.

— Art. 62— eontd.

father as the officiating desai, the suit was rejected
under Act XI of 1843. In 1866 an arrangement was
come to under which a sum of R40-2 was to be
annually available over and above the remuneration
of the officiator. On the 9th July 1867, the defend-
ant received this sum for the first time. In 1873
a new arrangement was effected, under which the
ser\'ice was abolished, the Government resuming
half of the allowance and giving up the other half
freed from service unconditionally to the desais.
On 4th October 1878, the plaintif! brought this suit
to establish his right to a share of the moiety of
the amin sukhdi allowance given to the desais by the
Government, and to recover his share of the amount
received by the defendant; — Held, that the plaintiff's
cause of action in this suit arose on the day when the
officiating desai received the surplus of the allow-
ance freed from the condition of service and avail-
able for distribution amongst the desais as alleged
by the plaintiff, and the suit, having been brought
vrithin twelve years of that day, was not time-barred.
That the limitation of three" years, under Art. 62
of the Limitation Act (XV of 1877), Sch. II, and
not that of twelve years under Art. 132, was applic-
able to a claim by one sharer against another to
recover arrears of an allowance attached to a here-
ditary office, and not more than three years' arrears
of the amin sukhdi allowance could therefore be
awarded. Desai Maneklal Amratlai- v. Desai.
S HivLAL Brogilal . I. L. B, 8 Bom, 426

15. , Suit by shnrrr of

hak against another sharer — Desaigiri allowance. A
suit by one sharer in a vatan against another sharer
or alleged sharer who has improperly received the
plaintiff's share of the " hak " is suit for money
received by the defendant for the plaintiff's use, and
the period" of limitation is three years as prescribed
by Art. 60 of the Limitation Act. 'l 871. Harmikh-
GAERi v. Harisukhprasad . I. L. B. 7 Bom. 191

16. — Suit to recover

arrears — Siiit for money had and received — Dsh-
pande vatan — Suit by one sharer again.'it other.
Where a person, having previously obtained a decree
declaratory of his title, sues his co-sharer in a desh-
pande vatan, who is bound by the decree to recover
arrears, his suit is a suit for money had and received
by the defendant to the plaintiff's use ; and the
period of limitation is three years as prescribed by
Art. 62, Sch. II of Act XV of " 1877. Non-participa-
tion of profits by the plaintiff for more than twelve
years from the" date of the previous decree does
loot extinguish his title, and he can recover arrears
for three years preceding the date of his suit to
recover them. Dulabh Vahuji v. Bansidharrai

I. li. B. 9 Bonx 111
17. Practice— Pro-
cedure—Vatan — Cash allowance— Suit for arrears of
share. The plaintiff in this suit sought to recover
eleven years' arrears of his share in a certain Gov-

C 7091 )

DIGEST OF CASES.

( 7092 )

LIMITATION ACT (XV OF 1877)-

Schedule 11— contd.
Art. 6Z— contd.

contd.

ernment allowance received by the defendants and
also pra3-ed for an order directing the defendants to
pa}- him and his heirs his proper share in future.
The defendants contended that under the Limita-
tion Act (XV of 1877) only three years' arrears
could be recovered. In a previous suit brought by
the plaintiff in 1874 against the same defendants it
was decided by the High Court that twelve years'
arrears could be recovered. The lower Court now
held that this decision continued to bind the parties,
and that therefore the present claim should be
allowed. It accordingly passed a decree for the
plaintiff for the amount claimed, and also directed
that the defendants should pay to the plaintiff
and his heirs for the future his share in the
allowance ; — Held (varying the decree), that the
plaintiff under the Limitation Act (XV of 1877)
was only entitled to recover arrears for three
years. Chamanlal v. Bapubhai

I. li. R. 22 Bom. 669

18. — • Money received

— Trust jor specific purpose. R sued his father and
brother A for partition of the family estate and
obtained a decree by which he was entitled to re-
cover, inter alia, one-third of a debt due to the
family. In May 1878, the debtor, having received
no notice of R's claim, paid the debt to his father.
The father died, and his estate came into the posses-
sion of ..-1 .• — Held, in a suit brought by R in July
1881 against A for one-third of the debt, that the
money received by the father was not held in trust
for a specific purpose, and that the suit was barred
by Art. 62 of Sch. II of the Limitation Act.
Aru>'achai.a Pillai v. Eajiasamya Pillat

I. li. E. 6 Mad. 402

19.

Separation

joint Hindu family — Suit for share in joint 'pro-
perty— Limitation Act, Sch. II, Art. 127. At the
separation of members of a joint family governed
by the Benares school of Hindu law in 1885, the
unrealized debts of the family were left undivided.
The debts were subsequently realized by some of the
members of the separated family. In a suit
brought by the other members in 1893 {inter aha)
to recover their shares in the debts so realized : —
Held, that the claim of the plaintiffs could only be
treated as coming under Art. 62, Sch. II of the
Indian Limitation Act (XV of 1877), and the claim
in respect of such of the debts as were realized more
than three years before the institution of the suit
was barred by limitation. Art. 127 of the same
Schedule would not apply to such a case. Thakur
Prasad v. Partah, I. L. R. 6 All. 442, referred to.
Banoo Tewary v. Doona Tewary

I. Ii. R. 24 Calc. 309

20. and Art. 127— Joint Hindu

family — Separation — Joint property. After the
separation of P and T, two members of a
joint Hindu family, certain bonds continued to be

LIMITATION ACT (XV OF 1617)— contd.
Schedule 11— contd.

Art. 62— contd.

held by them jointly. Four years after the sepan
tion, P obtained a decree in respect of one of the:
bonds (which had been obtained in his nan:e alone
and realized the amount decreed in the same yea
Eight years afterwards, T brought a suit against
claiming to be entitled to a share in the mone
realized. Held, that Art. 62, and not Art. 127, <
Sch. II of the Limitation Act was applicable to tt
suit. Thakuk Prasad v. Partab

I. L. R. 6 AIL 44

21. and Art. lOQ— Suit /<

money received by defendant to plaintiff's use-
Vatandars Act, III of 1874, s. 8. Under s.
of the Vatandars (Bombay) Act, III of 1874, th
Collector passed an order that a contribution shoul
be paid by the holders of a part of the shetsane
vatan towards the annual emolument of the office
holder. As payment was not made, he caused tt
defaulters' moveable. property to be sold on the 18t
May 1881 as for an arrear of land revenue, and pa;
of the sale-proceeds to be paid over to the offic
holder. The defaulters had, in the meantime, a]
pealed to the Revenue Commissioner, who eventual'
on the r7th December 1881, amended the Co
lector's order by reducing very considerably tl,
amount of contribution to be paid to the offic
holder. Thereupon the defaulters filed a suit c
the 9th April 1884 to recover from the offic
holder the difference between what he had r
ceived under the Collector's order and what 1
ought to have received according to the Reveni
Commissioner's order. Held, that the suit was oi
for money had and received by the defendai
to the plaintiff's use, and as such governed 1
Art. 62 of Sch. II of the Limitation Act (XV
1877). Ladji Naik v. Mitsabi

I. L. R. 10 Bom. 6e

22. Suit by deshmu.'i

for deductions by Collector from watan. Wliere a Ckj
lector in the year 1854 employed certain karku!
to assist a deshmukh in the performance of his du'
deducting the amount of their pay from the df
mukhi watan, but failed to show that the emplo
ment of such karkuns was necessary, it wa? held th
the deshmukh was entitled to recover the amoUj
so deducted from his watan, as money received
the defendant to the use of the plaintiffs and not
an interest in immoveable property ; that his can
of action was not barred in 1870, for that a nt
cause of action in respect of such deductio
accrued each year in which the deduction
made, and that six years' arrears of such c
duction could be recovered under s. 1, cl. 16, of ^
XIV of 1859. Raxgoba Naik v. Collectoe i
Ratxagiri . . . .8 Bom. A. C. W

23. and Art. \S2—Suit for morf

value of fixed quantities of grain payable f
tenant to landlord — Nature of such claim for pv
poses of limitation — Suit to enforce payment

( 7093 )

DIGEST or CASES.

( 7094 )

LIMITATION ACT (XV OF 1877)— con/i.

Schedule II — conld.
Art. 62— co7itd.

money charged on Jitnd — Iviiyioveahle proptrty —
Kibandha — lionet/ valiir of good.?. An inamdar, in a
iuit against his tenant, established his right to the
money value of a fixed quantity of grain to be
paid to him j'early by his tenant, and subsequently
brought this suit to recover from his tenant the
arrears of such payments for ten years at the market
rate prevailing in the last month of each of those
.ears. The defendants contended that arrears for
ily three j-ears were recoverable under the Limita-
tion Act (XV of 1877), and that the rates applic-
able to ascertain the amount were the Government
motion rates : — Held, that the plaintifi's right would,
inder the Hindu law, be " nibandha," and would
under the law rank for many purposes as immove-
able property-, but that a dilierent principle applied
,to sums realized and become paj-able in the hands
Df him who realized them to the intended recipient.
The interest or jural relation of right of such reci-
pient was nibandha, but the particular sum due
.0 him was either money received to his use, or pay-
able on a contract, and money which would remain
due, though the grant constituting the nibandha
were cancelled ancl had ceased to exist after the
reahzation of the money. It being thus distin-
guishable from the original right which produced it,
[he claim in this suit was barred by limitation after
three years. Money value means the market value,
that for which the grain would actually sell, not a
merely arbitrary value called auction rates. MoR-

BHAT PrROHIT V. GaNGADHAR KaRKARE

I. li. R. 8 Bom. 234

24.

Money depc sited

for repayment on a contingency. The period of
limitation for a suit to recover money deposited by
the plaintiff with the defendant, upon the under-
^tan^ling that it will be returned in a certain event,
should be calculated not under Art. 115, but under
Art. 62 of Sch. II of Act XV of 1877. Such period
begins to run on the happening of the event.
JoHVBi Mahton v. Thakoor Nath Lukee

I. li. R. 5 Calc. 830 : 6 C. L. R. 355

25. — Suit for money

nctn-ed by defendant, for plaintiff's use. B re-
ceived from C money due from him on two deeds
3f mortgage. A , who was entitled to a share of the
rnoney, instituted a suit for recovering his share
from B more than three years after the receipt of the
money by B .—Held, that the money was received
by B for A's use and that therefore the suit was
5overned by Art. 62 of Sch. H of the Limitation
*tt (XV of 1877), and not by Art. 120. Nund
Loll Bose v. Meer Aboo Mahomed, I. L. R. 5 Calc.
>»', and Gurudas Pyne v. Bam Xarain Shaw,
•L. R. 10 Cede. 860, distinguished. Mahomed
'* AHiB I'. Mahomed Ameer (1905)

I. li. R. 32 Calc. 527

^^- and Arts. 95, Ql—Suit to

ccover money obtained by deceitful mi.srepresenta-
^on does not fall within Art. 62 or 97, but within

LIMITATION ACT (XV OF lQTI)~contd.
Schedule TL—cor^t'^.

Art. Q2—contd.

Art. 95— Starting point of limitation. ^, by fraud-
ulently representing to B, to whom he was indebted,
that a sum of money was due to A from C, induced
B to take an assignment of the alleged debt due
from C in satisfaction of the debt due from A to
B. In a suit by B as assignee, against C, the
latter in his written statement denied the existence
of any debt due to A and B's suit was dismissed
after trial on the ground that C owed nothing to
A. In a suit by B to recover from .4 damages on
the ground that A had, by deceitful representations,
induced B to take the assignment. Held, that
the suit as regards hmitation did not fall within
Article 62 or 97 of Sch. I of the Limitation Act,
but within Art. 95, and that the fraud must be
held to have been discovered only when the Court
found that no debt was due from G to A and not
when C in the written statement denied the exist-
ence of any such debt. When it is uncertain
when the fraud was discovered, the onus is on the
defendant to show that the suit is out of time.
Punnayil Kuttu v. Ramax Xair (1907)

I. L. R. 31 Mad. 230
Arts. 62 and 97—

!• ; Contract — Failure

of consideration — Vendor and purchaser — No
title in vendor to part of land sold— Failure to
give possession to vendee — Suit by vendee
for refund cf purcha.se-tnoney comptnsciticn —
Damages. On the 25th August, 1891, A sold
certain property, consisting of forty-two separate
plots of land, to the plaintiff, by a sale-deed
which contained the usual covenant for quiet
enjoyment. The plaintiff obtained possession of
thirty-six of the plots, but not of the remaining six.
The occupants of the latter had been in possession
for many years, and claimed to be owners of
them. On 6th September, 1897, the plaintiff
brought this suit for possession against A (his
vendor) and the occupant of one of the six plots, and
in the alternative he claimed compensation from A.
Both the lower Couits found that A's title to the
plot in quesrion had been extinguished at the date
of the conveyance to the plaintiff in 1891, and they
held that the plaintiff's claim for compensation was
barred by limitation under Art. 62 of Sch. II
to the Limitation Act (XV of 1877). On second
appeal it was contended that the i)laintiff's right to
compensation arose only when the lower Courts
decided that he could not obtain possession of the
land, and that consequently his claim fell within
Art. 97 of Sch. II to the Limitation Act, and was not
barred :—^fW (Whitworth, 7., dissenting), that
Art. 62 applied, and that the plaintiff's claim for
compensation was therefore barred. As A (the
plaintiff's vendor) had no title to the land at the
date of conveyance, the contract of sale was void
ab initio there was then a failure of consideration,
and the plaintiff's cause of action for compensation
arose on that date. Abdesir v. Vajesixg (1901)

I. L. R. 25 Bom. 595

( 7095 )

DIGEST OF CASES.

( 7096 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule 11— contd.
Art. e^— contd.

2. _^ Assignmejit of

mortgage over immoveable property hy tinregistered
document — Receipt hy assignor of mortgage-amount
in fraud of assignee — Suit by assignee against
ai^signor within three years of receipt of mort-
gage money. By an agreement in writing, but
not registered, bearing date 21st August 1895,
defendant assigned a mortgage over certain
lands to plaintiff, for a consideration which
was duly paid. In 1898, the mortgagor
brought a suit against plaintiff and defendant to
redeem the mortgage and to recover possession of
the property, and a decree was passed on 5th Oc-
tober of that year, in which the Court refused to
recognise plaintiff's title because of the non-regis-
tration of the assignment. Defendant thereupon
received the mortgage-amount as mortgagee from
the mortgagor. Within three years of the said
receipt by defendant of the mortgage-amount,
plaintiff brought this suit to recover from defendant
the sum paid as consideration for the transfer of
the mortgage in 1895. Upon the defence of limit-
ation being raised : Held, that the suit was not barred.
Defendant, by receiving the mortgage-amount from
the mortgagor, in fraud of plaintiff's right, received
it for plaintiff's use. The suit was therefore gov-
erned by Art. 62 of Sch. II to the Limitation Act,
and was not barred, inasmuch as it had been in-
stituted within three years of the receipt of the
money by defendant. Moreover, as possession of
the martgaged land had been given, under the docu-
ment of 1895, the plaintiff, and held by him until
its redemption by the mortgagor, there was con-
sideration at the time when the as-signment was
made, and that consideration afterwards failed.
Inasmuch as the suit had been brought within three
years of the date of the failure of consideration.
Art. 97 would applj', and the suit would not be
barred. Sriramultt v. Chinna Venkatasami
(1901) . . . . I. L. K. 25 Mad. 396

3. and Arts. 97, 1\Q— Transfer

of Property Act (IV of 1SS2), ss. 55 {2) and 108
(c)—Art. 116, Sch. II of the Limitation Act will
apply only when the transaction is one to which
s. 55 (2) or 108 (c) of the Transfer of Property
Act will apply and a covenant for title or quiet
enjoyment can be implied. The first defendant, in
September 1897, granted, in consideration of an
advance, a registered karar to P, the predecessor in
title of the present jjlaintiff, in the following terms :

"Deed of consent or permission granted to . . .

. . by In consideration of this

amount, the trees standing shall be

cut down at your expense during a period of 6 years,
from this date, with the exception of teakand black-
wood. For every cart-load of timber so removed .
. . . you are to pay a kuttikanam of fi.2-4-0
and on those timber, the seal of the Etam shall be

impressed without delay during the

period of 6 years, the Etam shall not grant any per-
mission to others to cut trees you have

LIMITATION ACT (XV OF ISlD—conti.
Schedule 11— contd.

Art. 62— contd.

the right to cut down trees and none whatever to th
land." The first defendant and the other defenc
ants formed a Tarwad, and in a suit brought o
behalf of the Tarwad against Pand the first defend
ant, it was declared that the karar was not bindin
on the Tarwad and P was restrained from cuttin
timber. The present suit was instituted by P t
recover personally from the first defendant and froi
the Tarwad properties the amount ad\'anced wi*
interest as damages : — Held, that the suit so far
the Tarwad properties were concerned was r
judicata by reason of the decision in the previoi;
suit. Held, also, that the suit as against the firi
defendant was barred bv limitation. The artic
applicable to the suit is either Art. 62 or Art. 97 (
Sch. II of the Limitation Act. The document is m
a sale or lease of immoveable property within tl
definition of those terms in the Transfer of Pre
perty Act and a covenant for title or for qui.
enjoyment cannot be implied under s. 55 (2) or
108(c) of the Act. Art. 116of Sch. Ilof theLimi
ation Act does not apply to the case. The dod
ment did not create a mortgage or charge on ir
moveable property. It is no more than an excl
sive license to cut trees. A document may crea
an interest in land and bring it within the provisioi
of the Registration Act. The covenant for tit
will not necessarily be implied in such cases, unle
it is one of the transactions in which a covenant cf
be implied under the Transfer of Property Ac
Seeni Chdtiar v. Santhanathan Chettiar, I. L. j
20 Mad. 58, followed. Mammiktjtti v. Puzhakk.
Edom (1906) . . . I. L. R. 29 Mad. 3E

Art, 62, 120—

1_ Suit agai)

Benamidar—Art. 62 applies to suits agaii
henamidar hy real owner to recover money receii
by the former. The period of hmitation for
action by the real owner against a benamid
to recover money received by the latter f
the use of the former, is that prescribed in Sch.
Art. 62 of the Limitation Act. Art. 120 di
not apply to such a case. Mahahala Bha
V. Kunhunna Bhatta, I. L. R. 21 Mad. 373, follow^
SuBBANNA Bhatta v. Kunhanna Banta (1907)
I. L. R. 30 Mad. 2J

2 Suit to reco'

money received under a transaction which ts
absolute nullity governed hy Art. 62 and not l-
and catiseof action arises on the date of paymt'
A suit by A to recover from B money wh
B had recovered from a debtor of A un(
colour of a void assignment of such debt by A to •
is an action for money had and received and muste
brought within three years of the payment by ''■
debtor to B under Art. 62 of Sch. II of the Limitat j
Act. Art. 120 does not apply t j such a case. Nn
Lai Bose v. Meer Aboo Mahonud, I. L. R. 5 Cc
597, dissented from. Mahamed Wa^ih v. Mahor.i

( 7097 )

DIGEST OF CASES.

( 7098 )

IMITATION" ACT (XV OF 1877)-

Schedule II — contd.
Art. 82— concW.

contd.

meerl.L.R. 32 Calc. 532, followed. Shanmuoa
ILLAI r. Minor Govindasami (1907)-

I. li. R. 30 Mad. 459

— Arts. 62, 120,il32—

See Mortgage . I. L. E. 33 Calc. 92

— Arts. 62, 127—

cl. 9)-

See Hindu Law — Joint Family.

I. L. R. 32 Mad. 191

Art. 63 (1871, art. 61 ; 1859, s. 1,

— — Suit for interest — Sjiit

r money pnyahle on demand — Suit for money
posited payable on demand. The plaintiff in this
lit deposited certain money with the defendants,
firm of bankers, on the 30th August 1863. On the
id January 18(J7, an account was stated and a
ilance found to be due to the plaintiff consisting

the original deposit, and interest on the same
Iculated at six per cent, per annum on the 11th
■binary 1876, the defendants having proposed to

y the iilaintiff such balance, together with in-
cest on the original depos.t, from the 2nd Janu-
y 1867 to the 15th February 1876, calculated at
ir per cent, per annum, plaintiffs demanded that
e should be paid such interest at the rate of six
r cent, per annum. The defendants refused to

ctde to this demand on the 11th February 1876

il on the 17th of the same month they paid the
luitiff such balance with such interest calculated

the rate they proposed, viz., four per cent. On
e 11th February 1879, the ijlaintiff brought the
esent suit against the defendants in which she
,i;med the sum representing the difference between
iMi interest calculated at'four percent, and six
x cent., alleging that her cause of action arose
'1 the 14th February ]81G:—Held, that the suit
'lid not be regarded as either one for money

t under an agreement that it should be payable o n
t|aand, or one for money deposited under an agree-
'int that it should be payable on demand, but must
'regarded as one for a balance of money payable
t interest for money due, to which cl. 9, s. 1 of
^|. XIV of 1859, Art. 61, Sch. II of Act IX of 1871,
B|l Art. 63, Sch. II of Act XV of 1877, had suc-
i|*ively applied, and the suit was barred bv limit-
•,)n. Maktjndi Ktjar v. Balkishen Das "

I. L. R. 3 All. 328

Art. 64 (1871, art. 62)—
See ante. Arts. 60 and 64.
I See Guardian — Duties and Powers of
I Guardians . . 13 C. L. R. 112

Accomit stated.

i i !f "11 .'^ ^ account stated, within the mean-
«I.!L u • ^^,' ^"^^^ " °^ -^ct IX of 1871, need not be
ti „ ^T.**"^ ^^^^''^- Tariney Churn Xundy

» >BDUE RoHOMAN . . . 2 C. Ii. R 346

LIMITATION ACT (XV OP 18n)-contd.

Schedule U— contd.
Art. 64— conli.

^.'^^ ~ — 7 Account stated-

Simultaneous verbal agreement—Simultaneous vrit-
ten agreement. A simultaneous verbal arrreement
cannot extend the ordinary period of limitltion for
a suit on an account stated. An agreement to ex-
tend the period must be in writing and sio^ned bv
the defendant or his agent. Dagdusa v. Shamad
I. L. R. 8 Bom. 542

Y', ~ ~ Suit on account

stated — Acknowledgment in writing. It is not neces-
sary, in a suit on an account stated, to entitle the
plaintiff to recover items of the debt which became
due three years before suit, that the defendant
should have acknowledged the accounts in writino-.
Nand Lal v. Nait Ram . . 7 jg-. -^^ 105

^- , ;; . Suit on account

stated orally or in xvriting. The period of limitatioa
for suits on accounts stated is the same, whether the
accounts are stated verbaDy or in writing, and is
governed by Act XV of 1877, Sch. II, cl. 64. ' Akb\r
V. Khan I. L. R. 7 Calc. 256 : 8 C. L. R. 533

Under Act XIV of 1859, it was held that, unless
the original right had been kept alive by a written
acknowledgment, or the transaction of adjustment
of account amounted to a new and distinct contract,
limitation ran from the date of the original debt for
the balance of which the suit was brought. Kun-
hya Lall v. Bunsee

Agra F. B. 94 : Ed. 1874, 71

5- Verbal admission

of correctness of account. A mere verbal admission
of the correctness of an account, the items of which
were barred by the Act, was not suflScient to create
a new starting-point. Subbarama v. Eastilu

Muttusami 3 Mad. 378

. 6. - Signing and ad-

justment of account. Semble : That the adjustment
and signing of an account by the defendant was
held to be a sufficient contract in writing to satisfy
the requirements of cl. 9 of s. 1 of the Act of 1859,
Umedchand Hukamchand v. Bulakidas Lal-
chand .... 5 Bom. O . C. 16

See Brooke v. Gibbon . . 19 W. R. 244

7. Sdtlemenl of ac-
counts— Admission of balance. Xew contract.
Where a settlement of accounts is made between a
commission agent and his principal, and a sum
found and admitted to be due by one to the other,
the date on which this is done might be regarded as
that of a new contract to pay within the meaning of
Act XIV of 1859, s. 1, cl. 9, from which hmitation
could be counted. Bissessur Gir v. Sree Kishex
Shaha Chowdhry ... 24 W. R. 440

Ben.arsee Doss v. Khooshal Chind. Khoo-
SHAL Chand v. Palmer . 2 Agra, Ft. II, 17Q

8' Suit for balance

of accouni on allegation of account stated — Fresh

( 7099 )

DIGEST OF CASES.

( 7100 )

LIMITATION ACT {XV OF 1877)-
Schedxile 11— contd.

-c-yiitd. LIMITATION ACT (XV OF 1877)— cortC

Art 64— co»iii.

contract to pay. To render an agreement, come to
orallv for the payment of the balance of an antece-
dent debt on a settlement of accounts, available in
support of a suit brought after the expiration of the
period of limitation applicable to such debt, it must
be clearly shown to have amounted to a new valid
contract to pay the balance, which extinguished the
oriffinal cause of action. Hirada Karibasappah
r. Gadigi Mudappa ... 6 Mad. 197
See Ramkkisto Paui. Cohwdhrt v. Hcrry Da^s
KooxDoo . . Marsh, 219 : 1 Hay 569

MARrMTTHT i'. Savedcatha PniAI

I. L. E. 21 Mad- 366

ctthd

and balance struci — Xew contract. Where an en-
dorsement on a bond showed that an account was
made up, a balance struck, and that it was agreed
to be paid at a future day with interest : — Held, in a
suit for the amount as due on an acknowledgment
made on the bond, that it was not an acknowledg-
ment, but a contract by which time was given for
payment, and limitation ran from the date specified
for pavment. BissriiBHTS Shi v. BrKxo BEDAErx
Hossics- 17W.E.408

10.

Adju-stmnit of

accounts — Demand. In order that an unsigned ad-
justment and settlement of accounts may operate
to give a fresh starting point from which limitation
commences to run, there must be cross-demands,
the striking of the balance between which con-
stitutes a new consideration for the promise on
the part of the jperson against whom the balance is
found to i)av the balanc-e so settled. Mulchand
Gidabchand v. Girdhar iladhab, S Bom. A. C. 6,
followed. Hargopai, Pre^isttkhdas v. ABDn.
Kttax Haji MrHAMMAD . . 9 Bom. 429

In the case there followed it was held that, where
there had been a running account between the
plaintifi and the defendant consisting of advances
made by the former, and part payments by the
latter, the plaintifi was entitled to recover only in
respect of advances made by him within three years
preceding the institution of his stiit, but he had a
right to appropriate any payments made within that
time to the r«iuction of the general balance, even
though the recovery of such balance was barred by
time. MtxcHAST* GrxABCHAXD r. Giedhar Mab-
HAV 8 Bom. A. C. 6

Account state

Signed balance of account — Achnoidedgment. A sum
of money was deposited with the defendant "s firm in
1S57. Three years afterwards interest was paid by
the firm, which was debited in the ledger to the
creditor against a credit of a like amount. In 1875
a balance was struck, and carried to another account
signed by the defendant, and acknowledging the
same to be " due for balance of old acc-ount.'" In
1S7S the account was again balanced, and the
balance aeain transferred to a fresh account

Schedule II — covid.
Art. 64:— conid.

similarly signed : — Held, that the transaction did oi
amount to an account stated within the meaning
Art. 62. Sch. II of Act IX of 1S71, or Art. 64 of Sc
II of Act XV of 1877. and was no more than a m*
acknowledgment, which, as the stiit had ther. '
been barred by limitation, was of no avail,
account stated, in the true sense of the tern..
in the sense employed in the abovemen:
sections of the Limitation Acts of 1871 and
is where several items of claim are bri.urr.-
account on either side, and being set ._
another, a balance is struck, and the o
for the payment of the balance is the d -,_ .
each side, each party resigning his own right*
sums he can claim, in consideration of a j
abandonment on the other side, and of an agree i^-.
to pay, and to receive in discharge, the balai^
found due. Xahaxibai r. Xatht Bhaf

I. L E. 7 Bom. 4fc

12.

Account i

Achnoicledgment of debt. The striking of a balaje
in an account the items of which are all on one se
does not amotmt to an "account stated "• in e
proper sense of the term. Hence the 5ignature,f
the debtor to such balance amounts to no me
than an acknowledgment of a debt, and, if the d :
is barred at the time of signattire, will not .
rise to any fresh period of limitation in favour : :
creditor. XaJianibai v. Xathu Bhau, I. L.
Bom. Hi. followed. .Jamtx r. Xaxd Lal

I. L. E. 15 A

13.

and s. 19 — Accowit settl

not signed — t*ral promise by debtor to pay b
— Commencemerst of limitTiion. The pla:
and the defendant, who was his agent, exar.i
the account between them on 13th July 1SS7
balanc-e was found due by defendant, who
promised to pay it in one month. The accoon:
not signed. The plaintifi sued on 10th July
to recover the amount, and it appeared that th^
item in the account to the debit of the defendar.:
dated 2Sth May 1SS7. Held, that the suit was b
bv limitation. Amliml v. Muthayta

L L. E 16 Mad.

14.

Khaia, *k

a — Lim ititio»—A cin ourledgment — Co%drudk»
khata consistmg of one item only on the delHt
and bearing the mark of the debtor, hdd to
mere acknowledgment, and not an account sfci
Tribhoyax Gaxgarasi r. AArrvA

L K E. 9 Bom.

15.

Suit for

on account stated. On the 9th October l>7.r
book containing the accounts between iLv r
and the defendant, kept by the pla.r' ~
examined by the parties, and a balanc-e wa? r.
in the plaintiff's favour, which was orally appr
and admitted by the defendant. On the ind -'
1S77 the plaintifi sued the defendant fcw

( 7101 J

DIGEST OF CASES.

( 7102 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — conld.
Art. 64 — conid.

amount of this balance "on the basis of the account
book." Held, that the suit was in effect one on
accounts stated falling within Art. 62, Sch. II of Act
IX of 1871, and could be brought within three years
from the 9th October 1875 for the total balance
struck, and being so brought was within time.
Nand Ram v. Ram Prasad

I. Ij. K. 2 All. 641

■ iQ_ , . Suit for money

due on accounts stated— "Title " acquired under Act
IX of 1871 — Suit for money lent. The plaintiff
, '.ed the defendant for money due upon accounts
stated between them in December 1874, when Act
IX of 1871 was in force. Such accounts were not
?ifned by the defendant. The suit was instituted
after Act XV of 1877, which repealed Act IX of
1871, had come into force. Held, that the plaintiff's
right to sue upon such accounts within three
vears from the date the same were stated was not a
•'title" acquired under Act IX of 1871 within the
meaning of s. 2 of Act XV of 1877, which, under the
provisions of that section, was not affected by the
•epeal of Act IX of 1871, and the suit was not
:ovemed by the provisions of Act IX of 1871 but
oy those of Act XV of 1877, and that therefore, the
iccounts not being signed by the defendant, the
plaintiff could not claim the benefit of Art. 64 of
'5ch. II of the latter Act, but must be regarded as
iuins merely for money lent. Thakcryal v. Sheo
>i.xghRai . . . I. Ii. R. 2 All. 872

17.

Statement of ac-

LIMITATION ACT (XV OF 1877)— eon«.
Schedule II — contd.

■ount unsigned — Cause of action. The plaintiff?

•laimed on a statement of account in \vriting, dated

he 18th October 1877 ; this statement of account

vas not signed by the defendant. The date of the

'nstitution of the'suit was the 30th September 1880.

\\. Division Bench of the High Court held on the

appeal, on the case coming up before them on the

1 8th October 1877, that the suit was not based upon

l.ny express contract made between the parties ;

i.nd that the transaction which took place on that

[late did not constitute an implied contract, and

I hat therefore these contentions were not open to

'he plaintiffs, but the Court referred the question

jvhether the plaintiffs' claim, so far as it was

!»ased on the statement of account on the 18th Oc-

lober 1877, feU within Art. 64 of Sch. II of Act XV

\<i 1877. Held, by Mittek, Pkinsep, and Mc-

|)0XELL, JJ. — That the question referred was a

joatter of limitation arising in the case which had

|iot been decided in the order of reference, and with-

jiut such a decision the case could not be disposed of,

I nd as to that jjoint, that the statement of account

ot being signed bv the defendant did not fall with-

a the terms of Art. ()4 of Sch. II of Act XV of 1877.

{eld, by Garth, C.J., and Tottexham, J.— That

he Division Bench, having held that the transac-

ion afforded no basis for a suit, had disposed of the

ase, and the question referred was therefore im-

laterial. Dukhi Sahc v. Mahomed Bikhu

I. L. R. 10 Calc. 284 : 13 C L. R. 445

Art. 64:— contd.

18.

Account stated-

Agreement to 'pay debt by in-^talments — Suit for
whole aynount due. A being the holder of a decree
against B, B, on the 7th July 1875, entered into a
kistibandi and filed it in Court, setting out that he
would pay off the debt due under the decree by
certain instalments, and that, in default of payment
of one instalment, the whole amount of the debt
might be recovered by taking out execution of the
decree. By the kistibandi certain immoveable pro-
perty was pledged to secure the debt, but the kisti-
bandi was not registered. B failed to pay the first
instalment, which fell due on the 14th August 1875 ;
and A, on the 19th June 1878, applied for execution
of his decree, but the application was refused, and A
referred to a regular suit. In a suit brought by A on
the 29th January 1879 against B for the whole
debt due under the decree : — Held, that, inasmuch
as no appeal had been preferred against the order
disallowing execution. A was bound by that deci-
sion ; but that the suit might be taken to be one
for an account stated in writing with an agree-
ment for payment at a certain stated period of time
as regards the instalments due, which were not
barred by hmitation ; the suit as regards the instal-
ments which had not fallen due being premature,
and those previous to the 29th January 1876 being
barred by Art. 64 of the Limitation Act. Bhekhax
Dobey v. Rajroop Kooer . I. L. R. 8 Calc. 912

19.

Account stated-

Evidence of existing debt — Fresh Contract Law in
India — English Law — Acknowledgment of debt —
Limitation Act, 1877, s. 19- In June 1883, the
plaintiff's father advanced a loan to the defendant
at compound interest. The account of this debt,
with interest was adjusted and signed from time to
time. In June 1893, it was adjusted and signed,
the amount found due being R 28-8-0. In February
1896, the plaintiff sued to recover this amount :—
Held, that the account ruzukhata was merely an
acknowledgment of the debt and of the correctness
of the calculation of interest upon it. By English
law an account stated could be sued on ds implying
a promise to pay. Formerly this was the rule also
in Bombav (as shown by the earlier cases) where
the account was signed. If, however, it wa§ not
sit'ned, it could not be sued on as a new contract.
The Indian Limitation Act required an acknow-
ledgment or admission of a debt to be signed ;
and an admission not made in the manner pre-
scribed bv law {i.e., signed) for the purpose of pre-
venting a debt from becoming barred does not
implv a promise to pay it if it should become barred.
\ccording, however, to the later authorities, an
account stated or adjusted ruzukhata cannot be
sued on as a fresh contract. The suit must be
brought in respect of the original traasaction, and
the subsequent stated or adjusted accounts ruzu-
khata are only evidence of the debt arising from

( 7103 )

DIGEST or CASES.

( 7104 )

XjIMITATION" act (XV OP 1877)— contd.

Schedule II — contd.
— . Art. 64 — contd.

them, and serve to prevent the operation of the Act
of Limitation. Shankar v. Mukta

I. li. B. 22 Bom. 513

20.

Suit on adjust-

ment of account between landlord and tenant on de-
fault in payment of rent — Beng. Act VIII of 1869.
Where, in consequence of default in the payment of
rent, an adjustment of accounts was entered into
between landlord and tenant, and a balance found
to be due from the tenant : Held, that an action to
recover such balance with interest was not a suit
for arrears of rent under Bengal Act VIII of 1869,
but a suit for the recovery of money on account
governed by the provisions of the Limitation Law,
1871, Sch. II, Art. 62. Dolee Chand v. Goor
Dyal Singh .... 24 W. B. 218

21, Suit on account

stated by guardian as agent of minor. A suit on
an account stated against a minor cannot succeed
unless it be shown that the act of the guardian acting
as agent in the matter of the settlement of account
is beneficial to the interests of the minor. Azuddin
HossEiN V. Lloyd . . . 13 C. L. B. 112

22. ■ Suit for balance

of account — Evidence— Account stated — Acknowledg-
ment. A mere acknowledgment, signed by a
debtor in the account book of his creditor,
showing a balance standing against the debtor
on an account, which is not a mutual account,
is neither an account stated, to which Art. 64
of the second Schedule to the Indian Limitation
Act, 1877, apphes, nor is it evidence of a new
contract which can be the basis of a suit.
Jamun v. Nand Lai, I. L. R. 15 All. 1, and Shankar
V. Mukta, I. L. R. 22 Bom. 513, followed. Nand
Ram v. Ram Prasad, I. L. R. 2 All. 641 ; Thak-
urya v. Sheo Singh Rai, I. L. R. 2 All. 872;
Zulfikar Husain v. Munna Lai, I. L. R. 3 All.
148 ; Sital Prasad v. Imam Bakhsh, All. Weekly
Notes (1883) 47 ; Kanhaya Lai v. Stowell, I. L. R. 3
All. 581 ; Ghasita v. Ranchore, All. Weekly Notes
(1881) 65 ; Kunlmya Lall v. Bunsee, Agra F. B.,
p. 94 ; Hirada v. Gadigi, 6 Mad. H. C. Rep. 197 ;
and Dukhi Sahu v. Mahomed Bikhu, I. L. R. 10
Calc. 284, referred to. Ganga Prasad v. Ram
Day.41. (1901) . . . I. L. B. 23 AIL 502

23. Accounts stated

— Acknowledgment of indebtedness without reci-
procal demands. The defendant in a suit had,
within three years of the date on which the
plaint was filed, signed a written acknowledgment
that a sum of money was due by himself and his
partner to plaintiff. Upon this being relied
on as saving the suit from being barred by limita-
tion, it was pleaded that the document was not an
account stated, as there were no reciprocal demands
between plaintiff and defendants : — Held, that the
document was an account stated, within the mean-
ing of Art. 64 of Sch. II to the Limitation Act, I

LIMITATION ACT (XV OP 1877)~con«

Schedule II — conld.
Art. 64— co»cW.

and that the suit was not barred. It is not neces
sary, in order to bring a case under that Article
that there should be reciprocal demands between thi
parties. Oanga Prasad v. Ram Dyal, I. L. R. 2,
All. 502, and Shankar v. Mukta, I. L. R. 22 Bom
513, commented on. Manjunatha Kamti i
Devamma(1902) . . I. li. B 26 Mad. ISf

24 Arts. 64, 120-

Suit against heirs of deceased debtor — Hindu h^
—Joint Hindu family. The plaintiff, on tL
29th of August, 1898, sued to recover a sun
alleged to be due on an account stated betweei,
himself and one Kashi Nath, since deceasei
on the 15th of November, 1893. The contestin;:
defendants were two sons of Kashi Nath, and weri
sued as members of a joint Hindu family and a
partners in the business carried on by Kashi Natj
and his third son, who did not defend the suit. I
was found however, that these defendants had sepa
rated from their father and brother before the dat
of the account sued upon, and that they were no
partners in the business. Held, that the suit wa
governed, as regards limitation, by Art. 64 of tl
second Schedule to the Indian Limitation Act, 1877
that limitation, which had begun to run in favour (
the deceased from the date of the account statec
continued running in favour of the heirs ; and thai;
in the absence of any valid agreement or part pa^l
ment, such as would have the effect of extending tl
period of hmitation, the suit was barred. Narsin
Misra v. Lalji Misra, I. L. R. 23 All. 206, di
tinguished. Dagdusa Tilakchand v. Shamad, I. .
R. 8 Bom. 542, referred to. Fakir Chand
Daya Ram (1902) . . I. L. B. 25 All. e

Art. 65 (1871, art. 63)—

Surety on bond und'

taking to pay "eventually. " A "verbally becai
surety upon a bond executed by 5 f
repayment, in May 1872, to the plaintiff,
certain advances, promising, " if B does not pi
eventually (shesh porjunto), I will." Default w
made, and in April 1878 the plaintiff filed a si
against both B and A, the suit being clearly barr
as against the latter : — Held, that the words she
porjunto could not be taken as limited to t
time specified in the bond, and that the lower Cou
in order to determine whether the suit was barr
against A, must find upon the evidence when a c
mand was made upon him for payment, and th
apply Art. 65 of Act XV of 1877, Sch. IL Bis
UMBER DeyPoddar V. Ht:ngsheshtjrMookebje
4 C. L. B. =

Art. 66 (1871, art. 65)—

Claim not 6a.!

on single bond. The hmitation provided in Art.
of Act XV of 1877isnotapphcabletoasuitin wh)>
the claim is not based on a single bond, i.e., a bol

( 7105 )

DIGEST OF CASES.

( 7106 )

•^IMITATION ACT (XV OF 1871)— covUl. LIMITATION ACT (XV OF 1877,-con/tf.

Schedule II — ronld.
Art. 68 — concld.

IT written engagement for the payment of money,
fithout a penalty. Lachman Singh v. Kesri

I. li. R. 4 All. 3

Bond — Interest

nyahle monthly — Payment at a specified date —
.imitation Act, 1S71, Art. 75. The defendant
xecuted a bond, which provided that interest
hould be payable monthly, and that the principal
h.ould become due within six months from the date
■ execution ; the bond contained a clause to the
Hect that, if the interest should not be paid
?cording to the terms of the bond, or if the creditor
lould feel a ny doubts as to his being able to realize
le principal, he should not be bound to wait until
le expiry of the six months in order to bring his
lit. but should be at liberty to realize the principal
id interest in any manner he might choose : —
eld, that a suit on the bond brought within three
•ars from the date of the day sj)ecified therein for
ivment was not barred by limitation, as the case
li under Art. 65 of Rch. II of Act IX of 1871, and
.t under Art. 75 of Sch. II of that Act. Naeain
iBr ?'. GouRi Peeshad Bias

I. li. R. 5 Cale. 21

3. and Art. 116— Boiid stipulating

.(■ recovery cf Joan from moveahle and
moveable property. To a bond containing a
puktion that " if the principal and interest is
. t ])aid upat the stipulated pei-iod, then the obhgee
1 be at liberty to recover the whole of his money,
■tetherwith the interest fixed, by instituting a suit,
Immy moveable and immoveable property my
in milk." Art. 66 of Sch. II of the Limitation
j,i is applicable, such bond not creating a mort-
f;;e ; but where the instrument is registered. Art.
1|! may be applied to a suit for failure to pay the
l]id debt. Collector of Etawah v. Beti JI'aha-
*!* • . . . I. L. R. 14 All. 162

j Art. 67 (1871, art. 66)—

1 See Dekkhan- Agriculturists' Relief Act,
1879, s. 72. . I. L. E. 9 Bom. 461

- Art. 69 (1871, art. 68)~Bin of

'■je~Di»honour of hill— Suit against ac-
lir* ^' °^ *^^ ^-*^'^ October 1855, drew a
Dlof exchange, payable three months after date,
♦l"JnY ^^ ^' '*^''"'^'*^ ""'^® accepted bv J. Before
w;t)UI became due, B endorsed it to P, who again
J|Orsed It for full value to J/ B <L- Co., of which
til i/n ^-'^.^ a partner. M D d- Co. discounted
w. bill with G, who presented it at maturity
"■I. Who dishonoured it. G thereupon sued J/ i
• recovered a decree, which M L satisfied. M L
I eupon brought the present suit, on the 18th

.niary i860, against J as the acceptor of the bill
(cIr1.'^™^"P* ^^ P^^^ "»der G's decree -.—Held
W,?fK^ the decision of Norman, J.), that the

jwas barred by limitation, the plaintiff's cause of
«'n hamg accrued when the bill became pay-

Schedule II — contd.

, Art. QQ— concld.

able and the acceptor refused to pay. Mobendeo
Lall Bose v. Jadub Kissen Singh

14 W. B. O. C. 5
S.C. in the Court below . Bourke O. C. 157

Art. 72 (1871, art. 71)— Promissory

note " after six months when demand was made " —
Necessity of demand. Where a promissory note was
made payable " after six months, whenever the
payee should demand the same," with interest, it
was held that the law of Hmitation began to run
upon the expiration of six months from the date of
the note. Jeaunissa Ladli Begam Saheb v.
Manikji Khaesetji . . 7 Bom. O. C. 36

^' See Madhavbhai Shivbhan v. Fattesing
NuTHABHAi .... 10 Bom. 487

Art. 73 (1871, art. 72)—

. I VOL. m.

1. — Promissory note

payable on demand. Under Act XIV of 1859, the
period of limitation on a promissory note paj-able
on demand commenced to run from the date of the
note, and not from the date of demand. Vina yak
GoviND V. Babaji . . I. L. R. 4 Bom. 230

Hempanmal v. Hanuman . 2 Mad. 472

Taeachand Ghose v. Abdul Ali

8 B. L. R. 24 : 16 W. R. O. C. 1

s.c. in Court below. Abdul At v. TAEiCHAND
Ghose . . . . B. L. R. 292

The Act of 1871, however, altered the time from
which the cause of action arose in such a case to the
date when the demand was made ; but under the
present Act, the law was again altered and now re-
mains as it was held to be under the Act of 1859.

2. Promissory note

payable on demand — Caiise of action. The defendant
gave the plaintiff a promissory note on the oth
August 1869, paj-able on demand with interest at
5 per cent, per annum. No sum either in respect of
principal or interest was paid on the note, and pay-
ment was demanded for the first time in November
1875. Act XIV of of 1859 contained no provision
as to the date of the accrual of the cause of action
in a suit on a promissory note payable on demand,
but Act IX of 1871, which repealed Act XIV of
1859, and which applied to suits brought after the
1st April 1873, provided that the cause of action in
such a suit shall be taken to arise on the date of the
demand. In a suit brought on the note after the de-
mand : — Held, that the cause of action arose at the
date of the note, and as a suit on it would have
been barred under Act XIV of 1859 if brought
before the 1st April 1873, the .subsequent rejieaf of
that Act would not revive the plaintitf's right to sue.
NocooR Chxtndee Bose v. Kally Koomar Ghose
I. li. R. 1 Calc. 328

-See Venkata Chella Mudali v. Sash\gherry
R^i^ 7 Mad. 283

10 R

( 7107

DIGEST OF CASES.

( 7108 )

LIMITATION ACT (XV OF 1817)-contd.

Schedule II — contd.
Art, 73 — contd.

I LIMITATION ACT (XV OF 1877)— co;(.
1

Schedule II — contd.

Art. 73 -condd.

and MoLAKATALLA Naganna v. Pedda Narappa
7 Mad. 288

Act XIV of 1859

— Act IX of IS 71 — Promissory note payable on de-
mand. On the 12th December 1864 the jDlaintifE
sold seven bars of gold to the defendants, and de-
posited with them the value thereof, to run at in-
terest and paj-able on demand. The defendants
entered the amount in their own books, and fur-
nished the plaintiff with a pass-book, which con-
tained this entry: "The account of the amount
deposited by B (the plaintiff) with V (the defend-
ants), of the city of Poona. The details of it
are as follows : We have debited the amount to our-
selves, and will return it whenever vou demand it.
Shake 1876 (A.D. 1864)." The defendants adjusted
the account in the plaintiff's pass-book in July 1865
in these words : "Balance this daj% the 1st Jyest
vadya, Shake 1787, Rl, 159-2-0. Interest on this
sum will run from 1st Jyest vadya. Shake 1787
(A.D. 1865)." This entry was signed by the defend-
ants. The plaintiff drew several times against this
account within the first year, sometimes taking cash
and sometimes gold. On the piaintift"s demand-
ing the money in AjDril 1877, the defendants re-
fused to pay it. The j^laintiff therefore filed a suit
against them on the 25th June 1877. The defend-
ants pleaded limitation : — Held, that, regarding the
entry made by the defendants in the plaintiff's
book as a promissory note, the suit was barred by
the law of limitation" Vinayak Govind v. BaBaji
I. L. R. 4 Bom. 230

These are cases where the suit was, when Act IX
of 1871 came into force, already barred under Act
XIV of 1959. But in Madras ca?e the principle
was Jicld to be the same where the suit was not
barred under that Act at the time Act IX of 1871
came into force.

4. Suit on promis-
sory note executed while Act XIV of 1859 was in
force, hut not barred under that Act — Cause of
action. In a suit brought after the 1st April 1873
on a promissory note for a sum payable on demand,
executed while the old Limitation Act (XIV of
1859) was in force, but not barred under that Act
at the time the new Limitation Act (IX
of 1878) came into forces the period of limit-
ation ought to be computed from the
date of the note, and not from that of tiie
demand. The new Act merely alters the point
of time as to notes executed after its enact-
ment, from which the period is to be reckoned,
and does not make a demand a mode of extending
the period of limitation. Chinnasami Iyengar
alias STEEEi^iVASSA Raghava Charyar v. Gopala-
CHAREY . . . . . 7 Mad. 392

5. . Promissory note

■ — Novation. The holder of a promissory note
payable on demand, dated 14th April 1870, de-
manded payment on 8th December 1872. The

maker then paid interest in advance up to 1st A il
187.3, upon the condition that the holder shed
make no demand until that date : — Held, that is
transaction amounted to the substitution of a .w
contract for that contained in the promissory nc ;
that the period of limitation must be reckoned f m
1st April 1873; and that consequently a suito
recover the balance due on the note, instituteon
27th March 1876, was not barred. Nata lu
V. Janardan Ramachandra

I. L. R. 1 Bom. )8

The question was raised under the Act of ]'l,

whether the bringing of an action to recoverihe

amount due on the note could be regarded i' a

sufficient demand, but was undecided.

See Maduavbhai Shivbhai v. Fatting
Nathubhai . . . .10 Bom. 87

6. '■ Promissory \ote

payable on demand — Cawse of action. The sui'.^'as
brought on an instrument in the nature of a pr jis-
sory note payable on demand. The note.vas
executed on 20th November 1871, and thesuivas
filed on the 7th November 1675. Held, thathe
suit not having been brought until after the ate
on which s. 4 of Act IX of 1871 and its ajjptiix,
S"h. II, came into operation, the question wl'her
the suit was barred or not by the law of limi'tion
must be determined by Sch. II of that enactent,
which gives three years from date of de md.
Held, also, that the suit was not barred, there sing
no suggestion of any demand hav.ng been mai be-
fore the suit was instituted. Madhavan h. Auda
I. L. R. 1 Mad 301

Art. 74 (1871, art. 74)—

Under Act XIV of 1859, the deci.sions st
have been in accordance with this article, i
See MuxNA Jhunxa Koonwar v. LalJE5|
IW.

3I121

Ultaf Ali Khan r. Ra:m Lall

Agra F. B. 83 : Ed. 18;. «8

Art. 75 (1871, art 75—

See Bc.ND . I. L. B. 4 B(^- 96

I. L. B. 3 Ml. 61

11 C. W. I f 03

(See Right or Suit .
I. L.

B. 32 Mac 284

L - Promissorl "o''-

payable by instalments. A promissory note late<l
2nd April 1868, stipulated that the principal \'om
with interest was to be repaid by half-yearl}ji>'^i*'-
mentsof R150 each, and that, in the event ofP.voj'e
of these instalments not being punctually pf'- '•■
whole amount was to become payable »> °° ,_"
Default was made in pavment of the first '"-■' •
ment, which fell due on 2nd October 1868.1 '"a"
action brought on 19th October 1871 for the I'-J^^v

( 7109 )

DIGEST OF CASES.

( 7110 )

IMITATION ACT (XV OF 18n)-cmtd.
Schedule II — contd.

LIMITATION ACT (XV OF 1877)— conld.
Schedule 11—cmtd.

Art. 75— contd.

|the whole amount : — Held, that the right to bring
suit under Act XIV of 1859, s. 1, cl. 10 accrued
{ the plaintiff on 2nd October 1868, and that
j/ing omitted to bring it for more than three
_>.rs, he was too hite in instituting it on the 19th
( ober 1871. Held, also, that the plaintiff's right
t he immediate payment of the whole amount ^\as
1 . under the note, subject to be defeated by any
«, sequent payment, and that no such subsequent
I raent (assuming it to have been made) could,
ii| 'e absence of anj'^ fresh agreement, supersede
0 uspend such right. The proposition laid down
ii'iamkrishna Mahadev v. Bayaji Santaji, 5 Bom.
/^. 35, — that " although the instalments were
n paid by the defendants at the times fixed for
p ment, yet the defendants having paid the
v.ycy on account of them, and the plaintiff having
aitpted it, the pa^'ments must be considered, as
n rds bath parties, as if made at the times fixed
ai the plaintiff cannot take advantage of the
st'ilation that the sum should become due on
fa're to pay any instalment, or the defendants
re'upon it as making the whole debt due, and fix-
injthe period from which the time of limitation
ra ' — overruled, as there was nothing in
Ac XIV of 1859 to give any such effect to an
.»c )tance of part-payment after the whole debt
iia>come due. Gtjmxa Dambershet r. Bhiku
^ BA . , . . I. L. R. 1 Bom. 125

. \ Money payable by

fM'ments. In a suit for recovery of a certain sum
. the present defendant intervened by a
lirrceing to pay the whole amount due on
if the first instalment was not paid by the

the 16th of December 1863. In this suit,
'1 the 11th of April 1867, for recovery of

amount:— //eW, that under cl. 10, s. 1,

of 1859, the claim was barred. Gaur
- ''. ^Iadan Mohax Biswas

3 B. L. R. A. C. 16 : 11 W. E. 330

■~ : — Promissory note

m.e by imtalments~Non-pay7nent of instalment

^]ment of subsequent instalments. In August

l^'i H W, B B, and J W (the two latter biing

!S, and having been treated as such by the

ff) jointly and severally executed a promis-

i3te toMT B, payable by instalments, which

- Tiilariy paid till January I860, when they

''• instalment payable on December 10th,

lavmg been paid till January 5th, 1858,

stituted an action against BB for the

■n due, for which a decree \\as given.

moving for a new trial, the Judses diffcr-

liicstbns of Umitation and laches of the

"id the case was referred for the opinion

-!h Court, vhioh was in favour of the

"nthe point of limitation -.—Held, that

• action at once arises on, and limit-

trom, the non-payment of an instalment ;

Art. 7b— contd.

and that acceptance of subsequent instalments one
a note so paj^able is not a waiver of the limitation
which has so commenced to run against a surety.
Breen v. Balfour . . Bourke O. C. 120

Narayanappa v. Bhaskar Farm aya

7 Bom. A. C. 125
Ram Krishxa Mahadev v. Bayaji SA^-TAJI

5 Bom. A. C. 35

But see Gpmna Dambershet v. BniKr Hariba

I. L. R. 1 Bom. 125

4. __ Bond payable by

instalments — Stipulation to recover by execution —
Cause of action. Where a certain amount of money
was recoverable under an instalment bond by the
sale of the property hypothecated in it, and it was
one of the stipulations of the bond that the whole
amount might be recovered by execution of decree,
on default of payment occurring at any one of the
stipulated periods for the payment of an instalment :
—Held, that, as a separate suit could not be brought
for the whole amount on the occasion of any default
which occurred before the tarmination of' the last
kist, the whole amount could not, for the purposes
of the law of limitation, be held to be due on the
occasion of any such default. JrooUT Mohi>-ef,
DossEE V. MoNOHUR KooKWAR . 25 W. R. 278
Act, 1871, Art. 75

— Bond payable by instalments — Waiver of defatdt-
Cause of action. A suit w^as brought upon an in-
stalment bond conditioned upon default in pay-
ment of any one or more instalments that the whole
sum should be exigible. Default w as made in pay-
ment of several instalments, but subsequently pay-
ments were made and accepted by the plaintiff on
account of the unpaid instalments. This suit \\as
instituted more than three years after the first de-
fault in payment of an instalment, but within three
yens from the time when the last payment of an
instalment had been made. The defendant pleaded
limitation: — Held, that limitation ran from the date
on which the first default was made in payment of
an instalment, in respect of which default the benefit
of the pro\nsion in the 75th clause of second Sche-
dule of Act IX of 1871 was not waived. Uxcovi.-

NANTED S EBVICE BaXK V. KHETTERMOIirx Ghose

6 N. W. 88

Bo}id payable by
A bond, dated the

instalments — Waiver of default
23rd August 1870, stipulated payment of R39 for
principal and R9-12-0 for interest, making in a'l
R48- 12, by monthly instalments of Rl-8-6 with
the conditions, first, that in default of payment of a
monthly instalment, interest should be paid at 1^
per cent, per mensem till the whole amount wa.s
paid, and second, that in default of payment of any
two of the monthly instalments, the whole of the
principal should become payable at once, exclusive
of interest, from the date of the bond. Two instal-

10 R 2

( 7111 )

DIGEST OF CASES.

{ 7112 )

LIMITATION ACT (XV OF 1877)-
Schedule II — contd.

zontd.

Art. Ib—conid.

ments being overdue on the 24th October 1870, the
whole principal became payable at once. In an
action brought by the obligee on the 4th June 1874
for the recovery of the money : — Held, that the
claim was wholly barred, as the first condition
amounted only to a proviso that the obligee
might exercise a right of waiver and accept pay-
ment by instalments instead ( f suii g for tlie whole
and there was nothing to show tiiat he had
exercised such right of waiver. Navalmal Gak-

BHIEMAL V. DhONDIBA BIN BhaGVANTRAM

11 Bom. 155

Bond payable by

instalments— Waiver. On the 24th May 1866, H
gave A a bond payable by instalments, which pro-
vided that, if default were made on the payment of
one instalment, the whole should be due. The first
default was made on the 28th June 1866. No pay-
ment was made after Act IX of 1871, Sch. II, Art.
75, came into force : — Held, in a suit upon such
bond, that limitation began to run when the first
default was made, and no waiver, before Act IX
of 1871 came into force, could affect it. Ahmad
Ali v. Hafiza Bibi . I. L. B. 3 All. 514

See Radha Prasad Sin'gh v. Bhagwan Bai
I. L. E. 5 All. 289

Waiver — Proof -

Abstention froin suit. Mere abstinence from suit is
not sufficient to prove waiver of a right to enforce a
condition whereby, upon default of payment of an
instalment, the whole debt becomes duo. Sethtj v.
Nayana . . I. li. R. 7 Mad. 577

Bchf payable by

instalments — Waiver — Proof. Where a l)ond for the
payment of money by instalments contains a con-
dition that the whole sum then remaining due shall
become payable en failure to pay any one instal-
ment, the creditor, who seeks to recover instalments
whichin due course would have been due subsequent-
ly to the date on which the recovery of the debt
in full has become barred, must prove a waiver
of his right to enforce the condition. Waiver is not
to be inferred from mere abstinence to enforce the
condition. Gopala v. Paramma

I. L. B. 7 Mad. 583

10. Bond — Waiver

— Cause of action. The mere acceptance of instal-
ments after default, by the obligee of a bond pay-
able by instalments, which provides that, in case of
failure to pay one or more instalments, the whole
amount of the bond due shall become payable
doe? not constitute a "waiver," within the meaning
of Art. 75, Sch. II of Act IX of 1871, of the obligee's
right to enforce such pro\nsion. In the case of
such a bond, the cause of action arises on the first
default, and limitation runs from the date of such
default. Mtjmfobd v. PealI. L. B. 2 All. 857

11. ■ Coidracl to pay

by instalments — Default in paying an instalment of a

LIMITATION ACT (XV OF 1877)-co«

Schedule Tl~ contd.
Art. lb— contd.

debt payable by instalments. ^V'hen a debt is m e
payable b\' instalments, \\ith a proviso that, n
default of payment of any one instalment, .e
whole debt, or so much of it as may then rena
unpaid, shall become due, limitation runs, ursr
Act IX of 1871, or Act XV of 1877, from the tie
of the first default. A subsequent acceptance ohe
instalment in arrear operates as a waiver, and s-
pends the operation of the law of limitation ;at
merely allo\A ing the default to pass unnoticed eg
not. /» <7ie matter o/ Cheni Bash S AHA V. Ka M
MuNDUL . . . I. Ij. E. 5 Calc»7

12.

Decree

by instalments — Defaidt — Waiver — Estoppel-
cation for execution as provided for in case oj
— Application to recover instalments. A dec;
the payment of money directed that an ami >
than the amount sued for should be paid b\
ments, and that, if default were made in pa} i
one instalment, the amount sued for should
able. Default having been made, the decrc
on the 7th May 1877, applied for execution
decree for the larger amount. It appeared >
this time, although the instalments had i\"
paid regularly, the decree-holder had recti
full all the instalments which had fallen n
cepting the instalment falling due in the p
September, that is, September 1876, of v! ■
had received only a part. The application
7th May 1787 was struck off the iUe. The
i holder su' iequently accepted the- remaiuin ■
ments, which were paid on due dates. '
28th August 1878, the decree-holder api
payment of an instalment which had bti :
into Courtt. On the 8th September 1^>
decree-holder applied for execution of the dt i
the larger amount payable thereunder in cast
fault, with reference to the default in respect
instalment for September 1876. The Coi-
fused to allow ex cution to issue for such a:
but allowed it to issue for the balance oi tli-
ment for September 1876. Per OLDFiELi'
That the acceptance by the decree-holdei_
instalments falling due after September IS,
\\ithstanding default had been made in res;
the instalment for September 1876, amount., v ^
\\aiver of his right to execute the decree .| «
larger amount payable thereunder in case " ■
fault, and by such waiver he was estopp''
recovering such larger amount in execution
decree. Muynford v. Peal, I- L. R- " '^ ,
&nAGyanChand v. Jawahur, 2 N. W. 83, r'
to. Radha Prasad Singh v. Bhagwan K-^i ^
I. li. B. 5 Al! '^^

IQ Consiruan of

decree— Decree payable by instalments— Exea '
decree. A consent decree for R350 direch
ment of the money by fourteen half-yeari\
ments of R25 each", in Cheyt and Assin of ea(

( 7113 )

DIGEST OF CASES.

( 7114 )

IITATION ACT (XV OF 1877)— forj^d.

Schedule II — contd.
Art. 75 — contd.

rst instalment to be paid in the month of Cheyt
(March- April 1877). The decree contained a
sion that on default of payment of any one in-
I ent, the execution-creditor should have the
' a of executing the decree for the whole amount
: ning unpaid. Default was made in payment of
■ rst instalment, but the judgment-debtor paid
ot on due date) the instalment which fell due
and including Assin 1285 (October-Nov mber
J when he stopped making any payments.
Hie 26th of November 1881 the decree-holder
{A for execution in respect of all sums then
titling unpaid under the decree. The District
D allowed execution to issue for all sums which
ll.Uen due ^\^thin three years previously to date
I' application for execution, but refused to
B| execution to issue in respect of the instal-
rj not then due : — Held, that the execution-
tj)r must be considered to have waived his
hj 0 execute the decree for the whole amount
t as entitled under the decree to realize any
ti lents which were still due. Nil Madhtjb

Ci ERBUTTY V. RaMSODOY GhOSE

I. li. R. 9 Calc. 857

14 Verbal contxtct —

5li lyable hy instalments. A entered into a verbal
■e .ent with B to pay a debt due in monthly in-
biits, B reserving to himself the right to claim
VI it of the whole sum due on default of three
:c-;ive instalments. A failed to pay any instal-
nj Four years after the first instalment was due
8U A to recover the sum due on the various
ta ents not barred by limitation : — Held, that B
« t bound to sue for the whole amount due
*c ' on A's failure to pay the three successive
ta ents. Semble : Art. 75, Ssh. II of Act XV
18], does not apply according to its strict terms
a jit brought upon a verbal contract. Koy-

*HiL'HXrN-DER DaSS V. BOYKOOXTO NaTH

.vsj:a
' I. L. E. 3 Calc. 619 : 2 C. L. R. 167

•^ Cause of action

>iment b>j instalments — Liability for

"i on failure of payment of instalments.

•■■\ August 1879 tile defendant, being

I he plaintiff, gave his bond for R8,000

•ovided for the payment of monthly in-

: R80 each, the first of such instalments

lue on the 4th September 1879. The

ntained the following clause : " If the

Bowles shall— in default of payment of

such instalments, or in the event of

1^ made by him in payment of the

uey when and as the same shall become

' t of the said policy, if so required by

iiiantrara Sad'iuram Pity, his executors,

'rs or assigns— pay the whole amount

then be due under and bv virtue of

.cats without deduction, then"^the above-

^^^>]boiid or obligation shall be of no effect ;

LIMITATION" ACT (XV OF 1877)— conw.
Schedule II — contd.

Art. 75— contd.

otherwise the same shall be and remain in full force
and virtue." The defendant paid three of the
said monthly instalments, the last of which was
paid on the 2nd December 1879, being that which
had fallen due on the 4th November 1879. No
further instalments were paid, but no demand for
payment of the entire sum secured b\- the bond
was made by the plaintiff until the 30th January
1884. The plaintiff filed this suit on the 28th April
1884. The defendant contended that the plaintiff's
cause of action arose on the 4th December 1879,
when he (the defendant) failed to pay the instal-
ment then due and pleaded limitation. The plaint-
iff contended that under the bond the cause of
action did not arise until the date of his demand,
viz., on the 30th January 1884:— //eW, that the suit
^vas not barred. The language of the bond showed
that it was the intention of the parties that, in case
default being made in payment of one instalment,
the whole amount should become due only if a de-
mand for such amount were made. The cause of
action did not arise against the defendant until the
date of demand, viz., the 30th J?.nuavy 1884.
Haxmaxtram Sadhueam v. Bowles

I. L. R. 8 Bom. 561

16.

Bond payable by

instalments — Cause of action Limitation Act, 1S77,
Arts. 67, 68, and SO. B and S executed a bond,
dated the 15th August 1874, in favour of plaintiff in
consideration of a loan of R15,000, agreeing to repay
the same -nithin three years from the above date and
covenanting to paj' every half-year interest on
the same, at the rate of 8 per cent, per annum ; and
also to pay the premia on certain policies of in-
surance made over to plaintiff by way of collateral
security. In the event of failure in paj^ment on due
date of interest and premia, the obligors made them-
selves liable to pay the full amount of the bond debt.
The bond also contained the stipulation that it
should be optional with the obligee to claim and, if
necessary, to sue for the full amount of the bond on
the failure of any one or more stipulated payment, or
on the full expiry of the period of three years :
— Held, that the bond was not an instalment bond,
and therefore Art. 75, Sch. II of Act XV of 1877, was
inapplicable. Held, by t^TCART, C. '., that limitation
commenced after the expiration of the three years
allowed bv the bond for payment of the debt.
Held by SViXKiE, J., that Art. 80, Sch. II of Act
XV of 1877, applies to the suit, and limitation would
run from the date when the bond became due ;
that according to the stipulation in the bond it
would become due on failure in payment on due date
of both the interest and premia, and not on failure
in pavment of either of them onlv. Held, inrther,
that Arts. 67 and (18, Sh. II of Act XV of 1877,
were not applicable to the suit. Ball v. Stowell
I. li. R. 2 All. 322

17. Decree payable

by instalments — Instalment, failure of, whole sum

( 7115 )

DIGEST OF CASES.

{ 7116 )

LIMITATION" ACT (XV OF 1871)— covld.
Schedule 11— contd.''

LIMITATION ACT (XV OF 1877)-conW.
Schedule 11— contd.

Art. 75— contd.

decreed to fall due — Right of decree-holder to loaive his
right to execute the whole decree — Waiver. A
proviso in a decree made payable by instalments, by
which the whole amount of the decree is to become
due upon default in payment of any instalment, is a
proviso enuring for the benefit of the decree^older
alone, and he is at liberty to take advantage of it or
to waive it as he thinks fit. In this case it was hdd
that he did waive his right, and therefore his right
to recover the amount by instalments subsequently
was not barred, limitation not running against him
from the original default. Ram Culpo Bhatta-
CHARji V. Ram Chunder Shome

I. L. E. 14 Calc. 352

18.

Instahnent bond

— Default in one instahnent, the whole amount to fall
due — Waiver. The mere fact that a creditor has
done nothing to enforce a condition in an instru-
ment, under which the whole debt became due on
failure in the payment of one instalment, is no
evidence of waiver within the meaning of Art. 75
of the Limitation Act. Nobodip Chtjndeb Saha
V. Ram Krishna Roy Chowdhry

I. li. R. 14 Calc. 397

19, Bond payable by

instalments — Default in payment of an instalment —
Waiver of a condition of forfeiture on default in
payment of one instalment — Acceptance of an
instalment overdue. A bond payable by instalments
provided that, if default was made in paying one
instalment, the whole debt should become due. The
amount of the third instalment was paid five days
after it became due. The lower Court found that
this payment was accepted by the obligee as a
payment made on account or in satisfaction of the
third instalment, and not as a mere part payment on
reduction of the whole debt, and that the circum-
stances indicated an intention to waive the forfei-
ture, though there was no express waiver : — Held,
that the acceptance of the amount of the third
instalment constituted a waiver within the meaning
of Art. 75 of Sch. II of the Limitation Act, 1877.
NAGAPPAt'. Ismail . I. L. R. 12 Mad. 192

20. Execution of de-
cree— Decree payable by instalments — Default —
Waiver. A decree was made for payment of the
decretal amount by monthly instalments running
over a period of twelve years ; and it was provided
that on default the decree-holder might execute the
decree as a whole for the balance then due. In
1883, a default was made, and in 1884 the decree-
holder filed an application for execution in respect
thereof, but did not proceed with it, and continued
to receive the monthly instalments. In 1887, he
made another application for execution, in which he
relied on the same defauh -.-Held, that the default
if it was one, had been waived by the decree-holder
and that such waiver was a good defence to the !
present application. Mumford v. Peal, I. L. R. 2 '

Art. 75~contd.

All. 857, and Asmutullah Dalai v. Kally Chir
Milter, I. L. R. 7 Calc. 56, distinguished. Bul
DHu Lal V. Rekkhab Das . I. L. R. 11 All. 48!

, P' — Payment of bono

debt by instalments— Right to sue for whole debt o
default of payment of any instalment— Waiver .•
right to sue, nature of proof of. On the 15th Au{
ust 1891, the defendant executed a documei
admitting that he was indebted to the plaintiff
the sum of R2,125, and agreeing to pay the ani<
in seven instalments, the first (R401) to be pai .
August 1891, the second on the 28th April m
and the remainder at intervals of six months. 11
document contained the following clause : " If an
of the instalments, is not duly paid, I am to pay tl
whole amount with interest at eight annas per can
per annum." The defendant failed to pay the fir
instalment, which the plaintiffs admitted was no
barred, but on the 10th June 1895 the plainti;
filed this suit to recover the remainder of the de
and interest. The defendant pleaded that und
the above clause the whole sum became due qn t
failure to pay the first instalment; that the ri,
to sue which then accrued was never waived,
that the suit was how barred by limitation :— //
that the plaintiffs having failed to prove a wa;->
of the right of suit which accrued to them in Au"!
1891, the suit was barred by limitation. T
waiver contemplated by Art. 75 of Sch. II of •
Limitation Act (XV of 1877) must be either an aL-
ment between the parties, or such conduct as \'
itseK afford clear evidence of a legal wai^
Kankuc'hajs'd Shivchand V. Rustom-ti H0RM[v
I. li. R. 20 Bom. V

22. . . Bond—In4

ments — Waiver of right to recover ivhole amn-
on non-payment of instalment — Limitath
Where money secured by a bond is paya
by instalments, with a condition that the wli
amount secured will become due upon n
payment of any instalment, the creditor is
bound to enforce this condition, but he ;i
accept payment of instalments after due dat-
thereby impliedly waiving his right to sue for
whole amount due — and may sue upon a sul
quent default in payment of any future instalnii
Basant Lal v. Go/ml Pershad, All Weekly X
{1906) 193, distinguished. Maharaja op Benai
V. Nand Ram (1907) . I. L. R. 29 All. '

23. Liwitatiotir-E

— Instalments — Power to sue for whole amoun
default of payment. A bond payable by in.-^
ments contained a provision that in default of
jjayment of any one instalment it would be in
power of the creditor to sue for the whole amui
due under the bond -without waiting for the pf •
provided for the payment of other instalmei
— Held, that this provision did not mean that
creditor should be compelled to sue for the wl

( 7117

DIGEST OF CASES.

( 7118 )

LilMITATION ACT (XV OF 1877)— contd.
Schedule U—contd.

Art. 75 - concld.

m default of payment of one instalment nor did
imitation in respect of the whole debt commence
0 run from the date of the first default. Jadab
Jhandra Bakshiy. Bhaimb Chandra Chuckerhutty,
'. L. B. 31 Calc. 297, and Hurry Pershad Chowdhry v.
S'asih Singh, I. L. R. 21 Calc. 542, dissented
rom. Shankar Prasad v. Jalpa Prasad, I. L.
?. 16 All. 371, and Maharaja of Benares v. Nand
■iam, I. L. R. 29 All. 431, referred to. Ajudhia
.KrNJAL(1908) . I. L. R. 30 All. 123

"^ Instalment bond,

:qistered— Cause of action— Default— Waiver— Limit-
ucn— Limitation Act (IX of 1908), Sch. I, Arts. 7-i
nd 115. Where in an instalment bond it was
tipulated that in default of payment of one
i.stalment the whole amount of the bond shall
.ill due : — Held, that mere omission to sue is not
• ich a waiver as is contemplated by Art. 75 of
,ch. 1 of the Limitation Act. Monmohan Roy v.
hirga Churn Gcoee, I. L. R. 15 Calc. 502, fol-
)wed. Rup Narain Bhuttacharya v. Gopi Naih
landol, 11 C. W. N. 903, dissented from. Such a
aiver is not limited to the case of a subsequent
?ceptance of an overdue instalment, but may be
tiected in a variety of ways and may be inferred

om various circumstances. It must however
epend on some definite act or forbearance. Jadab
hatidra v. Bhairab Chandra, L L. R. 31 Calc. 297,
Inferred to. Abixash Chandra Bose v. Bama
;ewa(1909) . . . 13 C. W. N. 1010

^"' Instalment hond

-Whole amount to become due on non-payment

; two instalments — Default — Omission to she —

'^aiver, u-hat constitutes — Limitation — Limitation

ct (XV of 1S77), Sch. II, Art. 75. Where an

stalment bond provided that on non-payment

two consecutive instalments, the whole amount

the bond shall fall duv -.—H eld, that limitation

n from the date of non-payment of the second

stalment, unless there was a waiver by the

I editor by the acceptance of an overdue in.stalment.

jere ab.stinence on the part of the creditor from

]-inging a suit for the recovery of the whole amount

|ie on the failure of the payment of the first two

'^talments did not amount to waiver. Rup

arain v. Gopi Xath Mandol, 11 C. W. X. 903,

)t followed. Ch under Komal Das v. Bisassuree

issia, 13 C. L. R. 243, Xobo Coomer Mukhopa-

ya v. Siru Mullick, I. L. R. 6 Calc. 94 ; Xilmadhab

hakruhutty v. Ramsodoy Ghosc, I. L. R. 9 Calc. 857,

ferred to. Hurro Xauth Roy v. Maheroollah

oollah, 7 W. R. 21 ; Chenibash Shaha v. Kadiun

andal, I. L. R. 5 Calc. 97 ; Xobodip Chunder Shahn

Ram Krishna Roy, I. L. R. 14 Calc. 397 ; Mon

ohan Roy v. Durga Churn Gooee, /./,. R. 15 Calc.

'2 ; Hurri Pershad Chowdhry v. Xasib Singh, I. L.

21 Calc. 542 ; Sitab Chand Nahar v. Hyder Molla,

L. R. 24 Calc. 281 ; Jadab Chandra Bakshi v.

\atrab Chandra, I. L. R. 31 Calc. 297; relied on.

Rindra MohunRoy Chowdhry r. Bopha Das

>09) . . . . 13 C. W. N. 1004

LIMITATION ACT (XV OF \Q77) -contd.

Schedule II — ccmtd.
Art. 79, cl. (6)—

See Future Maintenance, decree for*

I. li. R. 30 Mad. 504

-_ Art. 80 (1871, art. QO)—Suit on

unregistered bond pledging m-jveable propeHy for re-
payment. In a suit on an unregistered bond, whereby
certain moveable property in the debtor's posses-
sion was pledged as security for the repayment of
principal and interest -.—Held, that the suit wa.s
governed by Art. 80, Sch. 11 of the Limitation
Act, 1877. ViTLA Kamti v. Kalekara

I. li. R. 11 Mad. 153

Art. 81 (1871, art. 82)— ,S'«/< by

surety of lessee for refund of rent paid to wrongful
heir of deceased lessor. In a suit by the suret}- of
a lessee for the refund of rent paid to the wrongful
heir of the deceased lessor, the cause of action as
against the wrong-dcers dates from the time when
they were declared by a competent Court to have
paid to a party without title, and the cause of action
as against the lessee dates from the time when the
surety was made to pay the rent to the rightful he r
on default of the lessee. P.ov Huree Kishen r.
AsMEDH Koon-war . . W. R. 1864, 57

Art. 82 (1871, art. QZ)~Suit for con-

tribution— Cause of action. A surety who had dis-
charged the amount of a bill guaranteed by him and
another as co-surety sued his co-surety for contribu-
tion : — Held, that, the cause of action in the suit
being the right to contribution, that right accrued
not when the bill in question was dishonoured, but
when the surety took it up and paid it. Constan-
tine v. Drew

1 N. W. Ft. II. 42 : Ed. 1873, 100

Art. 83 (1871, art. 84)—

See post. Arts. 97 and 83.
1. . Contract of in-
demnity. In 1864 a lease of a house was granted to
A for a term of ten years. The lease contained a
covenant to repair. .4 died, and B, his adminis-
trator, assigned the lease to another, and it u'ti-
mately became vested in the plaintiff. In 1872 the
plaintiff assigned the lease to the defendants
" under and subject to the covenants '" therein
contained. The defendants failed to repair, and
after the term had expired, C, the representative
of the lessor, sued B for arrears of rent and damages
for non-repair. B defended the suit, but C obtained
a decree against him for Rl), 167-3 and costs, amour.t-
ing in all to R8.328-3. His own costs amounted to
rT,491-1. In 1876 B paid C the R8.328-6. In
1877 B sued the plaintiff for the amount which he
had been compelled to pay C and for the amount
of his own costs. The plaintiff gave notice to the
defendants to intervene and defend if they desired ;
but thcv did not replv, and the plaintiff consented
to a decree for R6,932. 12-11 with costs. There-
upon the plaintiff instituted the present suit to
recover from the defendants the sura recovered from
him by B together \\ith his own costs of defence :

{ 7119 )

DIGEST OF CASES.

( 7120 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 83— contd.

— Held, that the suit was not barred under Act XV
of 1877, Sch. II, Art. 83— which provides a period of
three years' limitation for a suit upon any contract
of indemnity other than those specifically provided
for from the time " when the plaintiff is actually
damnified" — as the time when the plaintiff was ac-
tually damnified was ^hen B recovered against him.
Pepin v. Chunder Seekub Mooker.tee

I. L. E. 5 Gale. 811: 6 C. L. B. 167
2. . ^ Contract of in-

demnity— Set-off. A suit was brought by P against
the Elgin Mills Company for recovery of the price of
wood supplied under two contracts, each of which
contained a clause by which the plaintiff contracted
to indemnify the defendants for loss arising by rea-
son of failure on his part to supply the wood as
contracted for. No wood was supplied after the
11th November 1879. The suit was brought on
the 10th October 1882. Defendants claimed a set-
off as damages for loss incurred by the plaintiff's
failure to supply all the wood contracted for. such
loss having arisen on the 25th October 1879 and
subsequently : — Held, that the law of limitation
applicable to the set-off was Art. 83, Sch. II of the
Limitation Act ; that limitation would run from the
time when the plaintiff was actually damnified,
and should be reckoned to the date of the institu-
tion of the suit, and not to that of claiming the set-
off, which was after the defendants' names were
brought on the record : and that the set-off was
therefore in time. Walker v. Clement'}, 15 Q. B.
J046, referred to. Pragi Lat, v. Maxwell

I. L. K. 7 All. 284
Arts. 83, 113, 166— '^7iit to recover

money on a coven^mt in a registered document not a
su't for specific performance, hut for damages,
and falls within Art. 116 and not Art. J 1-3 of the
Limitation Act. A and B exchanged lands under
a registered deed, which contained the following
clause : " There is no dispute in respect of the said
lands. If disputes should so arise, the respective
party should be answerable to the extent of his pri-
vate property." A was deprived of some of the
lands he got by the exchange and he sued B on
the above covenant for the value of the lands, of
which he was dispossessed. The siiit was brought
more than six years after the exchange and more
than three, but less than six years, after the date i f
deprivation: — Held, that the suit was not a suit
for specific performance but a suit for compensation
for breach of a contract in writing registered and
for purposes of limitation, fell within Art. 116 and
not 113 of Sch. II of the Limitation Act. The
rule that in actions for damages for breach of cove-
nant of title in a sale, the breach must be held
to have occurred as and from the date of sale, does
not apply, when there is a special contract. The
provision in the deed above stated was a special
contract to indemnify, when deprivation took place,
and the period of limitation ought to be computed

LIMITATION" ACT (XV OP 1811)~con*4.

Schedule II — contd.
Art. 83 — concld.

from such date. As the suit was brought within
six years of such date, it was not barred by limita-
tion. SiNIVASAR RaGHAVA DiKSHADER V. PvENGA-

SAMi AiYANaAR(1908) I. L. R. 31 Mad. 452

Art. 84 (1871, art. 85)-

See Attorney and Client.

L L. B. 35 Cale. 171

Ad XIV of 1859,

s. 1, cl. 9—Beng. Reg. XX of 1S12, s. 5— Suit for fees
due to pleader. A suit brought to recover fees due
to plaintiff as pleader in three suits Avas held to be
barred by limitation as instituted after three yearb,
that being the period of limitation in one case in
which the defendants had agreed to pay the fees
according to law such agreement being a obligation
for the payment of money within the meaning of
s. 5, Regulation XX of 1812, and that being
also the limitation applicable under cl. 9, s. 1,
Act XIV of 1859, in the other cases in which there
was no AATitten engagement to pay the fees. Rash

MOHUN GOSWAMY V. ISSUR ChUNDER MoOKERJEE

9 W. E. U8

Suit for pleader's

fees not under written contract. A suit for plead-
er's fees upon a vakalatnama which is in the
form of a mere power of attorney, and is not a
A^Titten contract, is barred by limitation if not
brought within three years. In the absence cl
evidence of any express agreement as to when the
fees are to be paid, the implied agreement must be
taken to be for payment at the time when the case
is decided. Kashinath Roy Chowdhry v. Issrp,
Chunder Mookerjee . . 5 W. E. 297
Dwarkanath Moitro v. Kenny

5 W. E. S. C. C. Ref. 1

Carruthers v. Menzies . . . Cor. 40

3. Act XIV of 1859.

s. 1, els. 9 and 10 — Suit by vakil] for fees — Cause of
action. The defendants retained the plaintiff as
their pleader in original suit No. 2 of 1863 on the file
of the Civil Court of Cuddapah, and executed a
vakalatnama to him in July 1863, but no special
agreement regarding fees was made. The plaintiff
conducted that suit for the defendants as their vakil
until decree, which was made in September 1864.
The present suit was instituted in December 1866 :
— Held, reversing the decree of the lower Appellate
Court, that as there was no special agreement, the
plaintiff's right of suit did not arise until he had
completely discharged his duty in the conduct of the
suit, which he had done in" 1864. Consequently,
the present suit, having been brought within three
years from that date, was not barred. BurKAPAT-
NAM Thathacharlxj V. Kajamiya . 6 Mad. 265

4. " Suit "—Attorney

and client — Taxation of bill of costs— AppHcatwn

7121 )

DIGEST OF CASES.

( 7122 )

IMITATION ACT (XV OF l8n)-contd.
Schedule II — contd.

Art. 84^-contd.

attorney for payment or attachment — Rule 149'

m. Law Rules of Bombay Supreme Court. An

plication (under Rule 149 of the Common Law

lies of the Supreme Court of Bombay) by an

orney that his client should show cause why he

; )uld not pay the balance shown by the Taxing

.star's allocatur to be due in respect of his bill of

'.'•ts, and why, in default of such payment, attach-

; nt should not issue against the person and pro-

ty of the client, is not a " suit " within the

1 aning of the Limitation Act (IX of 1871).

' i an application as the above is not barred by

{ ■ law of limitation now in force in British

Ilia. Abba Haji Ishmail v. Abba Thaea

I. Ii. R. 1 Bom. 253

!>. Attorney and

c.nt — Bill of costs — Civil Procedure Code, s. 206 —
(\npromise of suit without knowledge of attorney.
1 olicitor was retained in July 1871, to execute a
fkee. In Ncvember 1871 a prohibitory order was
n le in the cause, after ^^■hich the solicitor did
iihing more in the matter. In June 1872 the
(i ree-hoklcr and judgment-debtor settled the mat-
t' in dispute between them without the knowledge
o,he solicitor ; but this compromise was not made
tl)ugh, or certified to, the Court which passed the
In a suit brought in December 1875 by the
Sinter against the decree-holder to recover the
a lunt of his bill of costs -.—Held, that the plaint-
il claim was not barred bv Arl:. 85 of S?h. II
t( ict IX of 1871. Hearn v. Bapf S Ajr Xaikin
I. L. R. 1 Bom. 505

Suit by vakil-

ntnation of suit. The termination of the suit
tioned in Art. 84 of Seh. II of the Limitation
(XV of 1877) means the date when judgment
ven. Balkrishna Pandurang v. Govind Sai-
I. L. R. 7 Bom. 578

— ; ^ Solicitor and client

-Taxation of costs.
appeal received a

^rtnination of suit—Decree-
-■^jlicitor for a party to an
n<Se after the date of the decree' that the costs
of|ie other side would be taxed on a certain date,
»r havi-ig i formed liis client received infctruCtio.is
No appear on taxation :—/feW, that, until the
'»[■ were taxed and inserted in the decree and the
uej^e had issued, the suit had not terminated ^^1th-
■" e meaning of Art. 84 of S;-h. II of the Limit-
Act, 1877. Narayaka Chetti v. Champion
I. L. R. 7 Mad. 1
- Taxed costs of an

'«y,

particular business,
client. Subsequent

suit for— Suit
mU'ng of— Attorney

Fyedings taken in connection with the taxation
« I opponent's costs are not part of the suit or
JPjCation itself. Where a firm of attorneys
M |;nt a suit against their clients to recover the
^■oH of an application to the High Court -.—Htld,
"»« limitation began to run from the date of the

LIMITATION ACT (XV Or 1877)-co7»W.
Schedule II — coritd.

Art. 84— concW,

judgment in the application. Balkrishna Pandu-
rang v. Govind Shivaji, I. L. R. 7 Bom. 578, and
Rothery v. Munnings, 1 B. & Ad. 5, approved.
Items of an attorney's bill for work done, subse-
quently to the judgment, in opposing the taxa-
tion of the opponent's costs, although done on his
client's instructions, will not take the matter out of
the Limitation Act. Such items do not form part of
the costs of the original a])plicatinn. AVatkixs v-
Fox . . . .1. L. R. 22 Calc. 943

Administrator-General of Bengal v. (^'hunder
Cant Mookerjee . J . L R. 22 Calc. 952 note

Art. 85 (1871, art. 87 ; 1859, s. 8)—

Under s. 8 of Act XIV of 1859, it was necessary
that the persons who had the mutual dealines
mentioned in the section should be "merchants or
traders." The following cases were held not to be
within the section : —

Repaj'ing a debt contractor. Peary Mohun
BosE V. GoBiND Chunder Addy . 10 W. R. 56

Acting as del credere agent, and as such receiving
commission for effecting sales of cotton for the
principal and guaranteeing payment \>y the pur-
chasers. Okoor Peesaud Bustoor-ee v. Fool
Coomaree Dabee

10 B. L. R. 15 : 16 W. R. P. C." 35
14 Moo. I. A. 134

Affirming the decision of the Court below in
Phool Koomaeee Beebee v. Oonkur Pershap
Roostobee . . 2 Ind. Jur. N. S. 50

7 W. R. 67

Suit for balance of arutdari account and for com-
mission and interest. Meher Chano Sahoo v.
Morcolyram . . . 14 "W. R. O. C. 7

Suit for balance of accounts between raiyats and
an indigo factory. Doyle v. Edoo Gazee

3 W. R. S. C. C. Ref. 13
Doyle v. Khooseeal Khan

3 W. R. S. C. C. Ref. ^
Doyle v. Alluji Biswas 4 "W. R. S. C. C. Ref. 1

NoBiN Chunder Shahoo v. ScRonr CnrNDKR
Doss 6 W. R. 328

Suit for balance of account framed as if in the
nature of a partnership demand. jNIrfoRKiNPALF,
V. Young . . . . 18 "W. R. 466

Young v. McCorkind.\le . 19 W. R. 159

Suit by one co-sharer against anutlier where the

co-sharers collect their rents separately, for recovery

of surplus collections realized l)y oidlecting more

than his share. Ailmed Reza v. Knayet H( ossein

W. R. 1864, 235

Suit by commission agent against his principal.

BissESSUR Gib v. Skeekrishen Shaha Chowdhry

24 W. R. 440

( 7123 )

DIGEST OF CASES.

{ 7124 )

LIMITATION ACT (XV OF 1877)— contd. LIMITATION ACT (XV OP 1877)— confd.

Schedule II — contd.
Art. 85--contd.

The following decisions were given under the Act
of 1859 :—

1. Mutual dealirgs —

Balance of accounts. The test of whether deal-
ings are mutual within s. 8 of Act XIV of 1859 or
not seems to be were they such that the balance was
sometimes in favour of one party and sometimes
of the other. It is not necessary that there should
have been such a buying or selling by each of the
parties, so as to constitute him a trader within the
strict meaning of the term. Ghassekram v.
MoNOHTiE Doss . 2 Ind. Jur. N. S. 241

2. ■ Mutual dealings

— Mutual fayment and receipt of money. Where
each party paid money to the other, and received
from the other an equivalent in bills, they were held
to have had mutual dealings. Ltjchmee Naraix
V. Choomun Meah , . 14 W. R. 184

3. • Mutual dealings

— Balance of account, suit for. In a suit for the
balance of an account with interest, the Court was
of opinion that the three years' limitation did not
apply, but that the case was one of mutual dealings
between the parties, and was governed by s. 8, Act
XIV of 1859. Ferxasdes v. Vasfdev Sha>'bog

3 Bom. A. C. 82

4. ■ Mutual dealings

— Co-sharers accounting for rents. The rule that
mutual accounts, if they contain some item or items
within twelve years, will not be barred by limita-
tion, though the rest of the items be beyond time
is confined to accounts between two parties which
show a reciprocity of dealings ; or, in other words
to transactions in which there is a mutual credit
founded on a subsisting debt, or an express or im-
plied agreement for a set-off of mutual debts.
Ahmed Reza v. Enayet Hossein

W. R. 1864, 235

5. ■ Account between

principal and agent — Mutual accounts. An agree-
ment between a principal and his agent commenced
with an admitted balance, and clearly contemplated
the existence of an account current containing
mutual items of credit and debit. The agreement
contained a s-tipulation that on the adjustment of
the accounts the principal should be bound to pay
such balance as might be found due from him. The
account was kept accordingly as a continuous ac-
count, and contained several items ^\hich brought
down the mutual dealings to March 1868. The
agent sued in February 1871 to recover the balance
due to him on the account. Held, that the case
within s. 8 of Act XIV of 1859, and was not barred
by limitation even as to the items which were dated
more than three years before the institution of the
suit. Watsok v. Aga Mehedee Sherazee

L. R. 1 1. A. 346

6. Mutual dealing

— Item showing contimicnce of account. The effect cJE

Schedule II — contd.
Art. 85 — contd.

s. 8, Act XIV of 1859, is that nothing in an accoun
of mutual dealings between merchants and trader
is to be barred, provided that there is an item ind'
eating the continuance of such dealings proved t
have occurred within the period of limitatiot
HiRADA Basappa V. Gadigi Mttddapa 6 Mad. 14'

1 7. Mutual account

I To constitute a mutual account there must \

j transactions on each side creating independei

[ obligations on the other, and not merely transai

; tions which create obligations on the one side, the

1 on the other being merely complete or partial di

charges of such obligations. Thus an account coi

sisting of entries of payments made by one party

reduction of his debt to the other, and of paynien

I made by the latter on behalf of the former party f

the same purpose, is not a mutual account A\ith|

the meaning of Art. 85 of Sch. II of the Limi

ation Act. Hirada Basappa v. Gadigi Muddap,

6Mad. 142, cited and followed. A shifting balanj

is a test of mutuality, but its absence is not co'

elusive proof against mutuality. Veltt Pillai

Ghose Mahomed . I. L. R. 17 Mad. 2{

8. Mutual dealings — F<

— Balance of account. The defendant in 1865 a
1866, indented on the plaintitfs for large quantit
of merchandise, which were shipped to Calcut'
from time to time by the plaintiffs' agent in Londi
who drew bills on the defendant lor each sh
ment, forwarding such bills and the shipi i
documents to the plaintiffs in Calcutta. The I
were presented to the defendant by the plaid i
and accepted by him. In the course of '
transactions several of the acceptances were >
honoured by the defendant, and the plaintiff:^,
his request, allowed him to renew the bills, t^"
renewals took place in August and September 1^
In March, May, and July 1866, the defendant n
purchases from the plaintiffs, and the plain
made purchases from the defendant. The pla>
iffs were in the habit of closing their acco\mt>
30th June in each year. In an action for bala
of account brought on 24th February 187<i
Held, that the parties were merchants and trai
having mutual dealings under s. 8 of Act XI \
1859. " The year mentioned in s. 8 of Act XI^
1859 is intended to be reckoned from the t
when the balance of accounts is struck. In
case that was the 30th June 1867 ; the suit, tlv
fore, was not barred. Quaere : What wouW
the operation of the section in those cases in vl
the merchant or trader balances his accounts at , 9
lapse of a period of less than one year ? SbiN H
Das v. Park Pittar

5 B. L. R. 550 : 14 W. R. O. C.

Mutual ace

— Suit for balance of account. Art. 85, Sch. H

Act XV of 1877, is intended to apply to cases w'

1 an account has been going on between two pai-

( 7125 )

DIGEST OF CASES.

( 7126 )

LIMITATION ACT (XV OP 1817 )-contd.
Schedule ll—contd.

Art. 85— conW.

and balances have been struck from time to time
showing the amount due from one of such parties to
the other ; and the suit to which that article is
intended to apply is a suit brought by one of those
parties against the other for the balance found to
be due on that account. Laljee Sahoo v. Ro-
OHOONUNDUN Lall . . I. L. R. 6 Gale. 447

10. • Balance of ac-

count— Mutual dealin'jx. Plaintiff had an account
rtith a banking firm of which the defendant was a
member. On the dissolution of this firm, plaintiff
made up his accounts debiting the defendant with a
share of the amount due to him from the firm
and afterwards he carried on business with the
plaintiff separately. It did not appear that any
settlement had been made betw een the parties from
the time of the dissolution of the firm down to the
filing of the plaint, or that the defendant had
assented to portion of the firm's debt being carried
to his separate account. Held, that the plaintiff
could not recover this sum with interest, as an item
of a mutual, open, and current account where
there had been cross-demands between the parties.
i (See Limitation Act. XV of 1877, Sch. II, Art. 85.)
; Roy DhunputSing Bahadooe v. Lekraj Roy

1 C. Ii. R. 525

11.

Mvtunl arcounfs

, —Adjustment — Admitted item icithin period of limit-
j aiion. A mutual, open, and current account, which
was kept according to the Sumbut year, having
' been adjusted in Assin Sudi 1031 S., corresponding
i with October 2ijth. 1874, the date of the last admit-
I ted item. a suit was sub equently on the 6th Decem-
; ber 1877 filed for the balance due upon such adjust-
ment : — Held, that, even assuming that on the date
, of adjustment the account ceased to be mutual, open
I and current. Art. 85 of S?h. II of the Limitation
! Act (X\' of 1877) was applicable, and that accord-
j ingly limitation ran from the close of the year
I 1931 S, i.e., the 20th April 1875. 0(1xesh Lall
Golam Si.ngh . . 5 0. Ii. R. 211
Mutual current

12.

\acc(mnts—Lin}itation Act, 1S71, Art. 62. The mana-
I ger of A, the proprietress of an indigo factory, on the
20th December 1869, paid into the kothi or bank of
■B, a banker, the sum of Rl,200 to the credit of A,
jand from that time onwards sums of money were
I drawn by A\s manager out of B' s bank, and aj)-
j plied to the purposes of A' s factory ; the balance,
though generally against A, fluctuated, A's account
being usually overdraw n, but there being sometimes
a balance in her favour, created by payments made
on her account into B's bank. The' 2ncl of July 1872
was the last occasion that any balance w as dvie from
•B to .4. Payments continued to be made on behalf
of A iiito iVs bank up to the I2th of June 187.*),
when a sum of R 1.083-8 was paid into her account ;
but, notwithstanding this payment, the balance of
account was on that date against her. After the

LIMITATION ACT (XV OF 1877)- contd.

Schedule II — contd.
Art. 85 — ccmtd.

12th of June 1873. B continued to make payments
on behalf of A, and also to render monthly accounts
in which he charged .4 with such payments, and
also with the principal of, and interest upon, the
balance due on previously-rendered accounts. This
continued till the month of Janurry 1874, when
B for the last time rendered a monthly account to
A, the last item in which was a payment made on
the 6th January 1874. On the "23rd Decembei
1876, B instituted a suit against .4 to recover the
balance of principal and interest due to him on the
footing of the last account rendered by him to A r
— Held, that the account between .4 and B was not,
and never had been, a mutual, open, and current
account, and that the suit was therefore barred
by limitation ; and that the payments made by B
on behalf of .4 within the period of limitation,,
even if authorized, did not have the effect of keep-
ing alive his previous claim against her. Held,
also, that, even if the dealings and transactions
between A and B could be so construed as to show-
that there had been at any time a mutual, open,
and current account between them, that mutual
relation terminated on the 2nd .luly 1872, or if not,
then on the l2th .June 1873, when the last payment
was made on A's account into B'x bank. ^Iaho-
MED V. AsHRUFUxxissA . I. L. R. 5 Calc. 759

s. c. AsKERY Khan v. Ashrufuxsissa

6 C. L. R. 112

13.

Mutual nccoi'.nt-i

-Reciprocal demands. From the month of Septem-
ber 1873 until the month of May 1874 the plaintiffs
at Bombay ar.d the defendant at Karachi had deal-
ings with one another. It was the practice for the
defendant at Karachi to draw hundis upon the
plaintiffs at Bombay, which the plaintiffs duly
accepted and paid at Bombay ; and in order to put
the plaintiffs in funds, the defendant was in the
habit of draw ing hundis upon other firms in Bombay
in favour of the plaintiffs, the amount of which
hundis the plaintiffs realized from time to time at
Bombay. Until the 8th January 1874 the balance
of the "account was sometimes in favour of the
plaintiffs and sometimes in favour of the defendant.
After that date, the balance of the account was
always in favour tithe plair.tiffs, who continued to
make advar.ces up to the 10th May 1874. The
last payment made by the defendant was on the
27th April 1874. The last advance made by the
plaintiffs was on the 10th May 1874. On the 10th
May 1874 the total balance due by the defendant
was R8,514-12-2. The plaintiffs calculated inttrast
on this sum up to the 9th April 1877, and on the
19th April 1877 filed the plaint in this suit to recover
the said amount. The defendant pleaded limita-
tion. The plaintiffs contended that the account
between them and the defendant was a mutual
account and that, under Art. 87 of Sch. II of tho
Limitation Act (IX of 1871), the ix-riod of hmitation

7127 )

DIGEST OF CASES.

( 7128

LIMITATION ACT (XV OF ISlD—contd.

Schedule II — contd.
- Art. 85 — contd.

dated from the day of the last advance made by
them to the defendant,— viz., 10th May 1874. Held,
on the authority of Ghaseeram v. Munohur Doss, 2
Ind. Jiir. N. S. 241, that the account between the
plaintiffs and the defendant was a mutual, current,
and open account within the meaning of Art. 87,
and that the suit was not barred. Literaly con-
strued. Art. 87 would apply only to those cases in
^\hich both parties have in the course of their
dealings made actual demands on one another. The
more reasonable and more probable intention of
the framers of the clause appears to have been that
it should apply to cases where the course of business
has been of such a nature to give rise to reciprocal
demands between the parties ; in other words, where
the dealings between the parties are such that some-
times the iDalance may be in favour of one party and
sometimes of the other. Kabka^'das Hemraj
V. VissANDAS Hemeaj . I. L. E. 6 Bom. 134

14.

Limitation Act,

1SS7, s. 19 — Acknowledgment of debt contained in un-
rec/isterei document — Admissihility of document as
evidence of acknowledgment. The nature of the pecu-
niary transactions between B and G were such that
sometimes a balance was due to the one and some-
times to the other. On the 1st October 1875 there
was a balance due to B. During the ensuing year,
as computed in the account, G made payments to B
exceeding such balance. On the 19th November
1876 a balance of R3,500 was found to be due from
G to B. On the 11th December 1876, G executed a
convej-ance of certain land to B, for which such debt
was partly the consideration. In such conveyance
G acknowledged his liability in respect of such debt.
He died before such conveyance was registered and
it did not operate. On the 18th November 1879, B
sued G's widow for such debt: — Held, that such con-
veyance Avas admissible as evidence of the acknow-
ledgment by G of his liability for such debt notwith-
standins such convevance was not registered ;
that applying Art. 85,' Sch. II of Act XV of 1877,
such debt was not barred by limitation when such
acknowledgment was made ; and that, if that
article was not applicable, but the period of limita-
tion began to run from the time each item compos-
ing such debt became a debt, still such debt a\ ould
not have bee i barred when such acknowledgrnent
■was made as the debt with which the year computed
from the 1st October 1875 opened was extinguished
by payments made bv G in the course of that year.
KursHALo uBehariLal . I. L. R. 3 All." 523

15.

2lutual current

accounts — Reciprocal demands. A employed B as
his agent. B alone kept written debit and credit
accouts. A sued B for a balance due on the account
between them.— //eZd, that the debit and credit
account showed reciprocal demands between
plaintiff and defendants, and that the account was
a mutual, open and current account within the

LIMITATION ACT (XV OF 1877)— con«d.

Schedule II — contd.
Art. 85 — concld.

•meaning of Limitation Act, 1877, Sch. II, Art. 85.

LaKSHMAYYA v. JAGAyXATHAM

I. L. R. 10 Mad. 199

16. Mutual, open and

current accounts. A sued as commission agent for B
and C. A furnished a debit and credi' account in
February 1878. The account was disputed, and the
matter was referred to arbitration ; for A\hich pur-
pose in March 1880 a " memorandum of items to be
settled " \\as drawn up and signed by B and C, in
which they denied that any balance would be found
due to .4, but acknowledged that accounts must be
taken, and that they would be liable if any balance
were found due to A. In June 1880 B signed and
supplied to the arbitrator an account on behalf of
himself and C. The arbitrator made an award
which was set aside. A filed a suit asjainst B and C
in September 1882 for the balance due to him : —
Held, that the accounts were mutual, open and
current accounts, and that the suit was not bured
by limitation. Sitayya i-. Rangakeddi

I. L. R. 10 Mad. 259

17.

Mutual account —

Test of mutuality — Shifting Imhmcc. The dealings
between the plaintiff and defendant consisted of
loans from one to the other. Interest was charged
on such loans. The parties were, besides, partners
in certain transactions, and the shares of profit and
loss falling to each partner's share were debited
and credited in their accounts. The dealings lasted
from 1884 to 1890. In 1892 the plaintiff sued to
recover the balance due to him in respect of all
these dealings. The defendants pleaded {inter
alia) that the suit was barred by limitation :
— Held, that the account v.as a mutual, open and
current account within the meaning of Art. 85 of
the Limitation Act (XV of 1877), and that the
suit was not barred by limitation. The fact that
in such an account the "balance is a shifting balance,
sometimes in favour of one party and sometimes
in favour of the other, though valuable as a index of
the nature of the dealings, is not always decisive
as to the nature of the account. The dealings to
be ' ' mutual ' ' must be transactions on each side
creating independent obligations on the other, and
not merely creating obligations one on side, :iud the
other side beng merely uisoharffcs of these obHaa-
tions. Gaxesh v' Gvaxu I. L. R. 22 Bom. 606

Art. 86 (1871, art. 88)~Suit to

recover amount due on policy of insurance — Caxise
of action — Notice of loss. A suit for the recovery
of the amount due on a policy of marine insurance
fell under cl. 10 of s. 1 of Act XIV of_1859. In such
cases the limitation (in the absence of a custom
allowing a certain time of grace) begins to run from
the date when the defendant has notice of the loss,
and refuses or neglects to pay. NaeotamDAS
Bhagtandas v. Dayabhai Ichhachand

6 Bom. A. C. 84

( 7129 )

DIGEST OF CASES.

( 7130 )

LIMITATION :ACT (XV OF 1811)— contd.
Schedule ll-^contd.

Art.;;89 (1871, art. 90) -

See Account . I. L. E. 35 Calc. 298

1 . Cause of action —

Balance of account. The representatives of a goiuasta,
who had, for the last four years of his life, taken the
monej's of his employers in advance for the purpose
of the' business, were sued for the balance of account
of such moneys after giving credit for the amount of
the gomasta's annual salary : — Held, that the cause
of f.ction arose at the date of the gomasta's death,
and the suit, having been brought within the period
^f limitation from tliat date, was not barred.
Kalikrishna Paul Chowdhrv v. Jagattara

2 B. L. R. A. C. 139 : 11 W. R. 76

Reversing, on appeal, Kalee Kishen Paut,

j Chowdhey v. Jugut Tara . 9 W. R. 334

, Ste Radhanath Dutt v. Gobind Chunder

! Chatterjee . . 4 W. R. S. C. C. Ref. 19

Suit against agent

for an account — Mooktear. An account of his re-
ceipts and disbursements having been demanded
from a mooktear, he, on the 3rd of August 1872,
i wrote a letter in which he promised to render full
accounts during the ensuing vacation. This he
neglected, though he did not refuse to do : — Held,
that the limitation for a suit to compel an adjust-
ment of account ran from the time when the de-
fendant's promise to render accounts was broken,
and was governed bv Act IX of 1871, Sch. II, Art.
90. (i''?eActXVof"l877, Sch. II, Art. 89.) Hori
Naeain Ghose v. Administrator- General of

Bengal 3 C. L. R. 446

■ 3. . Suit for an

j account between principal and agent. Where a plaint
alleged a continued agency in the defendant and
i prayed for relief on the ground that there was a
specific balance against liim, and prayed for the
irecovery of such sum or any larger sum that might
;be proved to be paj'able : — Held, that such suit was
essentially one for an account, and that limitation
ran from the date on which the agency ceased.
HuKKONATH Roy v. Krishna Coomar Bukshi
L. R. 13 I. A. 123 : I. L. R. 14 Calc. 147

Principal

went — Suit by principal for an account — Object of a

\iecree for an account, as distinguished from a decree

^made upon the hearing. A continued agenc}', or

;?mploymentas dewan, for the jmrpose of drawing

jind expending the money of a principal, resulted in

i suit by the latter, who alleged that more had been

' lirawn than expended for him, and that a specific

!mm, or balance, stood against the defendant, having

jbeen misappropriated by him. The principal

claimed also any further sum that might be proved

'0 be payable -.—Held, that in such a suit limitation

urMch was governed by Art. 90 of Act IX of 1871,

iommenced from the date on which the agency

'eased. Hurrinath Rai v. Krishna Ku^iar

3AKSHI . , I. L. R. 14 Calc. 147

L. R. 13 I. A. 123

LIMITATION ACT (XV OF l811)-^onid.

Schedule II — co7itd.

Art. 89 -contd.

5. Suit by principal

against agent to recover money received and not
accotmted for — Termination of agency — Contract Act
(IX of 1872), ss. 201, 218. Where an agent for
the sale of goods receives the price thereof, the
agency does not terminate, with reference to ss. 201
and 218 of the Contract Act (IX of 1872), until
he has paid the price to the principal ; and a demand
made by the principal for an account of the price
is made " during the continuance of tlie agency "
within the meaning of Sch. II, Art. 89 of the Limi-
tation Act (XV of 1877) : and a suit by the principal
to recover the price is therefore within time if
brought within three years from the date of such
demand. The agencj' does not terminate imme-
diately on the sale of the goods. It does not
terminate at the time when the plaintiff obtained
knowledge of the defendant's breach of dutv.
Babu Ram v. Ram Dayal I. L. R. 12 All. 541

6. Suit by principal

against agent for money received a^id unaccounted for
— Termination of agency. In a suit, brought in
1898, for the price of piece-goods sold for the plaint-
iff by the defendants as his agents,-the defendants
showed that the sale of the goods was completed in
1894, but the evidence showed their admis.-^ion of an
open account between the parties: — Held, that the
defendants were liable to the plaintiff as agents
until they had accounted to him, and therefore liis
claim as to the piece-goods was not barred. Babu
Ram y. Earn Dayal, I. L. R. 12 All. r>41, followed.
Fink v. Buldeo Dass . I. L. R. 26 Calc, 715
3 C. W. N. 524
Suit for account

between jmncipal and agent — Tennination of agency
— "'Moveable property'' — Money — Evidence as to
account stated. The appellant and respondent, two
brothers, were agents, the one for the other in deaUng
with their joint estate, and the agency was found
on the evidence to have continued until the 22nd
of December, 1885, when the appellant brought a
suit against the respondent for his share of money
received by the respondent on the joint account ;
— Held, by tlie Judicial Committee (upholding the
judgment of the High Court), that a cross suit
brought by the respondent against the appellant
for an account was governed by Art. 89 of Sch. II
to the Limitation Act, and, having been brought
within three years of the termination of the agenc}%
it was not barred. " ^Moveable property," in Art.
89, includes money. The appellant put forward
a /-(d-foj and list evidencing a settlement of accounts
supported by a substantial body of e\'idence of
persons apparently of good repute, but wliich the
respondent alleged to be fabricated : — Held, that the
High Court rightly rejected the positive evidence
in favour of the settlement when it appeared that
the facts ascertained on other evidence in the case
as to certain items in the hst were conclusive to the
contrary of what was there set out, and inconsistent

( 7131 )

DIGEST OF CASES.

( 7132 )

XIMITATIOW ACT (XV OF 1811)— contd..
Schedule II — contd.

Art. 89— concld.

with the existence of the alleged settlement. As-
GHAR Ali Khan v. Khurshed Alt Khan (1901)
I. L. R 24 All. 27
s.e. li. R. 28 I. A. 227

Suit for account

against agent — Payments made hy agent, how proved
— Moneys taken to pay illegal gratifications if must
he accounted^ for. A suit for accounts against an
agent in respect of money alleged to have been
improperly advanced by him to counsel for purposes
of litigation under a power which authorised him
•'to appoint, retain and engage counsel," is gov-
erned by Art. 89 of the second Schedule of the
Limitation Act (XV of 1877). Harender Kishore
Singh v. The Administrator-General of Bengal,
I. L. R. 12 Cede. 357, Ranga Beddi v. Chinna Reddi,
I. L. R. 14 Mad. 465, Hurrinath Rai v. Krishna
Kumar Bakshi, I. L. R. 14 Calc. 147, distinguished.
When an agent's account is being taken items
of payment alleged to have been made by him
cannot be passed without a voucher or a clear
account of the facts. An agent is bound to prove
that moneys drawn by him for payment as illegal
gratifications reached their destination. G. R.
Fox u. Beni PershadKoer(1908)

13 C. W. N. 212

Arts. 89, 116, 132—

See Principal and Agent.

I. L. R. 35 Calc. 298

Arts. 89, 120—

See Principal and Agent.

I. L. R. 32 Calc. 719

Limitation

Act

{XV of 1877), s. 19, Sch. II, Arts. 89 and 120Suit
for accounts hy zamindar against naib — Principal and
agent — Limitation. A suit by a principal against
his agent for an account and for money that may
be found due upon such account being taken is gov-
erned by Art. 89 of Sch. II of the Limitation Act.
Jogendra Nath Roy v. Deb Nath Chatterjee
(1904} . 8 C W. N. 113

Art. 90 (1871, art. Ql)— Suits gov-
erned by. What suits are governed by Art. 91 of the
Limitation Act, 1871, pointed out. Torab Ali
V. Mahomed Ameer Hossein . 3 C. L. R. 105

Art. 91 i(1871, art. 92)—

See Arbitration — Duties and Powers

of Arbitrators . 5 C. W. N. 585

See post, Art. 141 8 C. "W. N. 535, 802

See Benami Transfer.

I. L. R. 35 Calc. 551

See Declaratory Decree, suit for —
Suits concerning Documents.

L. R. 29 I. A. 203
See Document . I. L. R. 30 Calc. 433

LIMITATION ACT (XV OP 1877)— confer.
Schedule II — contd.

Art. Ql— contd.

See Fiduciary Relationship.

I. li. R. 30 Mad. 169
See Hindu Law — Alienation.

9 C. W. N. 636

See Hindu Law — Widow — Power of

Widow — Power of Disposition ok

Alienation I. L. R. 30 Calc. 990

I. L. R. 34 Calc. 329

See Limitation

I. L. R. 31 Bom. ]

See Madras Rent Recovery Act, s. 18.
I. li. R. 30 Mad. 248
See Malabar Law — Joint Family.

I. Ii. R. 15 Mad. 6

1- Smt to set aside

sale-deed. A suit of the kind mentioned in thi.s

j article was under Act XIV of 18.'59 governed by the

six years' hmitation. Thakoor Pattuos; ^.''Ram

Soomrun L.vl . . . 2 N. "W. 433

! 2. Application of

! Art. 91. Art. 91, Sch. II of the Limitation Act (XV
of 1877), only apphes to suits in which the docu-
ments sought to be set aside were intended to be
operative against the plaintiff or his predecessor
in title and would remain operative if not set aside.
Jagadamha Chaodhrani v. Dakhina Mohun Roy

I Chaodhri, I. L. B. 13 Calc. 308 : L. R. 13 I. A. 84 ;
Janki Kunwarv. Ajit Singh, 1. L. R. 15 Calc. 58 :

I L. R. 14 I. A. 148 ; Raghubar Dyal Sahu v. Bhikya
Lai Misser, I. L. R. 12 Calc. 69 ; and Mahahir
Pershad Singh v. Hurihur Pershad Narain Singh,
I. L. R. 19 Calc. 629, distinguished. Sham Lall
MiTRA V. Amarendro Nath Bose

I. Ii. R. 23 Calc. 480

Grant by zamvi-

dar of estate for maintenance — Lease hy granlee in
excess of his estate — Suit for possession after death of
grantee. A grant of a village for maintenance was
made by a zamindar to his nephew operating only
for life. The grantee survived the grantor, and by
ikrarnama acknowledged the preceding zamindar to
be entitled to the village. The grantee had, however,
already executed a pottah described therein as per-
manent to a lessee. The latter obtained possession,
and from him after the death of the original granteu
for life the zamindars who succeeded the grant or
accepted rent at the rate stipulated in the pottah
and did not disturb his possession. In a suit after
the death of the lessee claiming the village as part of
the inherited zamindari the defence was that the
lease was perpetual, but it was held that it was
void as against the successor of the grantor and not
merely voidable after the grantee's death : — Hehl,
that the suit for possession was not barred under
Art. 91 of the Limitation Act (XV of 1877) on the
ground that a decree declaratory of title to have tlie
pottah cancelled might have been sued foe in the

{ 7133 )

DIGEST OF CASES.

( 7134 )

LIMITATION ACT (XV OF 1811)— conid.

Schedule II — contd.
• Art. 91— contd.

essee's lifetime under s. 39 of the Specific Relief Act,
877. Bexi Pershad Koeri v. Dudxath Roy

I. Ii. K. 27 Calc. 156

L. R. 26 I. A. 216

4 C. W. N. 274

4. Suit to cancel

n-strumerU. K, to whom B had given a usufruc-
uary mortgage of certain land, promising to put him
11 possession, sued B for the mortgage-money, B
wing failed to put him in possession. This suit
,ds instituted on the 22nd November 1875. On
he 25th of the same month, K, learning that B
■as about to dispose of his property, caused a notice
J issue to him directing him not to transfer any
f his property. This notice was served on B on
!ie 29th November. On the 1st December 1875 B
i-ansferred certain land to T by way of sale. K's
lit was dismissed by the lower Courts, but the
ligh Court, on the 7th August 1876, gave him a
ecree :— Certain property belonging to B was sold
1 execution of this decree, but the sale-proceeds
ere not sufficient to satisfy the amount due on the
ecree. K thereupon, on the 1st July 1879, sued
' to cancel the conveyance to him by B on the
round that it was fraudulent and without consi-
i?ration. Hdd, that the words in Art. 91, Soh. II,
ct XV of 1877, " when the facts entitling the
iaintifE to have the instrument cancelled or set
side became known to him," must be construed
]! mean " when, having knowledge of such facts,
Icause of action has accrued to him, and he is in a
osition to maintain a suit." and consequently the
I'riod of limitation for K's suit began to run, not
lerely wlieii he had knowledge of tlie fraudulent
laracter of the conveyance to T, but when, having
jieh knowledge, it had become apparent to him
,iat there was no other property than that conveyed
T available for the realization of the unsatisfied
ilance of his decree, and the suit was within time.

VWAXGAR AlI V. KURA MaL

I. L. R. 3 All. 394
5. and Art. 114— S«/« to

LIMITATION ACT (XV OF \811)-con1d.

Schedule 11— contd.

Art. Ql— contd.

incd instrument — Suit for the rescission of a con-
\tcl — Time from which limitation runs — Equit-
■ le ettoppel. B, P, and G sued to cancel a lease
I certain land on the ground that the lessor was
't cqmpetent to grant the same, the defendants
ing the lessor and the lessee. The lessee's defence
the suit was that the lease had been executed with
j« knowledge, who caused it to be attested and
jiistered ; that it was recognized and adopted by P
d G, who allowed the lessee to take possession of
jt-'h land and accepted rent from him in respect
ereof ; that under the?c circumstances the plaint-
s •were estopped from denying the lessor's eom-
tency to grant the lease ; and that the suit was
ired by limitation, as more than three years had
■psed from tlie date of the lease. The lower Ap-
jUate Court affirmed the decree of the Court of first
itance in favour of the plaintiffs on the ground

that the lessee was aware that the lessor was not
competent to grant the lease. Held, on second ap-
peal by the lessee, that the limitation applicable to
the suit was to be found in Art. 91, Seh. II of Act
XV of 1877, and not Art. 114, that last ai-ticle refer-
ring to the rescission of contracts as between pro-
misors and promisees, and not to suits by third
parties to have an instrument cancelled or set aside ;
and that, as regards B, inasmuch as the existence of
the lease became known to him at the time of its exe-
cution, and three years from that time had expired,
the suit was barred by limitation. The proper issues
as between P and G and the lessee were framed and
remitted for trial. Bhawaxi Prasad Singh v.
Bisheshar Prasad Misr . I. L. R. 3 AIL 846

6- — ; Suit for cancella-
tion of instrument — Mahomedan law — Gift — Suit for
■possession of immoveable property. One of the
heirs of a deceased Mahomedan sued for her share
under the Mahomedan law of the estate of the
deceased, and to set aside a gift of his estate by the
deceased as invalid under that law, by reason'that
possession of the property transferred by the gift
had not been delivered by the donor to the donee.
Held, that, because the suit was not brought within
three years from the date of the gift, it did not
necessarily follow that the suit was barred by
Art. 91 of the Limitation Act, 1877, inasmuch as the
plaintiff's title to impeach the gift could only accrue
from the moment when, by receipt of possession, the
gift had become operative by law. Meda Bibi v.
Imaman Bibi , . I. L. R. 6 All. 207

7. Suit for cancella-

-Specific Belief Act (/ of 1877), s.
The plaintiff, alle^r-

tion of instrument-
39 — Suit for declaratory decree.

ing that he was the proprietor of certain land, that
defendant No. 2 had \sTongfully and fraudulently
mortgaged it to defendant No. 1, and that defend-
ant No. 1 had aijplied for foreclosure of the mort-
gage, and notice of foreclosure had issued, claimed
" that the mortgage-deed being set aside, the land be
protected from the illegal foreclosure by cancehuent
of the foreclosure proceedings." Hdd, that the suit
was not strictly one for the cancelment or setting
aside of an instrument to which the limitation in
Art. 91, Sch. II of the Limitation Act, 1877, would
apply (which relates to suits of the nature of tiiose
referred to in s. 39 of the Specific Relief Act), but
rather one for a declaratory decree. Sobha Paxdey
V. Sahodra Bibi . . I. L. R. 5 All. 322

8. — and Art. 144 — Suit to

cancel instrument — Champerty. The plaintiff sued
for possession of certain immoveable property " by
avoidance of a spurious deed of gift ' ' executed by
one N, deceased, in favour of the defendant. Per
Straight, J. — That the suit was governed by
Art. 144, and not Art. 91, Seh. II of the Limitation
Act, 1877. Per Sti-art, C.J. — That the suit was
governed by Art. 91 and not Art. 144, Sch. II of
that Act. Sikhcr Chand v. Dulputty Singh, I. L.

( 7135 )

DIGEST OF CASES.

( 7136 )

LIMITATION" ACT (XV OF 1877)— conti.

Schedule II — contd.
Art, 91 — contd.

R. 5 Calc. 363, distinguished. Hazari Lal v.
jADAUif Singh . . . I. L. R. 5 AIL 76

9. Suit to set aside

fraudulerd deed — Minority — Fraud. Where a deed
of sale is found to be a forgery executed in fraud of a
person during his minority, the date from which to
compute his knowledge of the fraud practised on him
in the absence of proof that he had before majority
the knowledge regiiired is the date on which he at-
tained majority. Kulyan Churn Mookerjee v.
BiPRO Churn JPurail . . 6 W. E. 321

10.

and Art. 95 — Suit

set aside deed of partition on ground of fraud —
Suit by minor on attaining majority — Limitation
Act (XV of 1877, s. 7). A suit to set aside a deed
of partition on the ground of fraud is governed by
Art. 91 or Art. 95, Sch. II of the Limitation Act (XV
of 1887), and must be brought within three years
after the minor plaintiff has attained majority ac-
cording to s. 7 of the Act. Chanvirapa v. Danava
I. L. R. 19 Bom. 593

11.

Suit to set aside

an instrument creating a charge on immoveable pro-
perty and to recover possession. Art. 92, Sch. II of
Act IX of 1871, has no apphcation to a suit to set
aside a mortgage-bond on the ground of fraud, and
to recover possession of the immoveable property
therein referred to. The article in question apphes
only where a bare declaration is sought regarding
the cancellation of a bond or other instrument.
Sikher Chand v. Dulputty Singh, I. L. E. 5. Calc. 363,
followed. Boo Jinatboo v. Shanagarvalab
K.A^NJi . . . . I. Ii. R. 11 Bom. 78

12. — Suit to set aside

fjeed — Fraud. In a suit instituted in 1884 by a
husband and wife to have a deed, granting land,
which v.-as executed by the husband in 1872, set
aside on the ground that it had been obtained from
the latter by fraud and undue influence, the facts
rehed upon were known to the husband from the
date of the deed. Although in another suit a sale
by the husband effected in 1879 was set aside in
1882 on the ground of his having been unduly
influenced, he was not at the time of the previous
transaction, nor for some years after it, mentally
incompetent or unable to allow that knowledge to
operate on his mind : — Held, that therefore the suit
falling within s. 91 of Sch. II of Act XV of 1877 was
not maintainable by either of the plaintiffs. Janki
KuNWAR V. Ajit Singh . I. L. R. 15 Calc. 58
Ii. R. 14 I. A. 148

13.

Mahomedan law

— Gift — Suit by heir for share of donor's property by
declaration of invalidity of gift. A Mahomedan,
who in October 1875 executed a deed of gift of his
property, under which possession was taken by the
donees, died in June 1885, never having taken any
steps to have the deed of gift set aside. In Feb-
ruary 1880, a suit was brought by his nephew

LIMITATION ACT (XV OF 1877)-coft(
Schedule II — contd.

Art. 91— contd.

claiming a share in the donor's estate by right
inheritance, and by having it declared that the de
was procured from the donor by fraud and und
influence. It was found that the plaintiff w
aware of the existence of the deed soon after
execution, and that, if there were any facts entitli;
him to have it cancelled, those facts were known
him more than three years before the institution '-
the suit : — Held, that the plaintiff had, during t)l
donor's lifetime, no reversionary or vested interc'
in the estate, but a mere possibility of inheritan
and consequently the donor, when he executed tl
deed, had full disposing power over his property, ai
the right which at his death, accrued to the plaint
came to the latter affected by the donor's acts ai
dispositions and that as a suit by the donor
set aside the deed would at the time of his deal
be barred by Art. 91 of the Limitation Act (2
of 1877), such a suit was also barred against t
plaintiff, who obtained through him the cancelme
of the deed, being a substantial and necessary in
dent of the claim, and the necessity which rest
ujjon the plaintiff for obtaining such cancelme
before he could dislodge the donees, not bei
obviated by his choosing to call the suit one )
possession of immoveable property. Abdul Wal
Khan v. Nuran Bibee, L. R. 12 I. A. 91, a
Jagadamba Chaodhrain v. Dakhina Mohun, L.
13 I. A. 84, referred to. Hasan Ali v. Nazo
I. L. R. 11 Aa 4S

14.

and Art, 120— .Sm»7

declaration of title — Incidental relief — Setting a-
instrmnent. The period of limitation for suit.s
declare title is six years from the date when t
right accrued, under the Limitation Act, IS'.
Sch. II, Art. 120 ; and this period is not affected \
Art. 91, though the effect of the declaration is to i;
aside an instrument as against the plaintiff. PaCHi
mutha v. Chinnappan . I. L. R. 10 Mad. "

15.

Will— Suit

contest validity of ivill. Art. 91 of Sch. II of Limi>

tion Act of 1877 is not applicable to wills. Saj

Ali v. Ibad Ali . . I. L. R. 23 CaM

L. R. 22 I. A. It

16. Suit to decU

document of no effect. A suit for a declaration th8»
document "was executed for nominal purposes 8Jl
was not intended to take effect " is not a suit ■
cancel a document within the meaning of Art.
of Sch. II of the Limitation Act. Nagathal
PoNNusAMi , . . I. L. R. 13 Mad. i

17. and Arts. 92, 9S--$

where the cancellation of a fraudulent instruni^
is ancillary to the main relief. Arts. 91, 92, andp
of Sch. II of the Limitation Act (XV of 1877) apf
only to suits brought expressly to cancel, set asider
declare the forgery of an instrument; but tlf
do not apply to suits where substantial relieja
prayed, and where the cancellation or declaratn-

7137 )

DIGEST OF CASES.

( 7138 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 91— contd.

>\a merely ancillary and not necessary to the "^Fantintr

of such relief. Abdul Rahim r. Kirparam^Daji '^

I. Ij. R. 16 Bom. 186

and Arts. 92, 93, 144

18. . __, „„^ _^^

Instrument, suit to set aside or declare the forgery
i— Immoveable property, suit for possession of.
.)ne D died in 1849 leaving an ikrarnamah or will.
His widows entered into possession of his property
ind the survivor died on the 23rd April 1886. The
•redecessors in estate of the plaintiffs brought a
it to set aside the ikrarnamah, which suit was dis-
nissed in 1864 on the ground that they had no cause
■f action during the lifetime of the sur%nving widow.
)n the 29th June 1889, the plaintiffs, as the heirs of
) after the death of the surviving widow, instituted
suit to recover possession of the property of D from
ne defendants, who claimed to have come into pos-
.^ssion thereof under the ikrarnamah upon the death
f the widow -.— Held, that the suit was governed by
16 limitation of three years for a suit to set aside
Q instrument, and not by the general limitation
rescnbed for suits to recover immoveable property,
< after the widow's death the parties in possession
ere those claiming under the ikrarnamah, who could
>t be displaced except by setting it aside. Raghii-
■r Dyal Sahu v. Bhikya Lai Misser, I. L. R. 12
^If- G9, approved. Jagadamha Chaodhrani v.
ftkhtna Mohun Roy Chaodhri, I. L. R. 13 Gale.
'i ■■ L.R. 13 I. A. 84, and Janki Kumvar v. Ajit
ngh, I. L. R. 15 Calc. 58 .- L. R. 14 I. A. 148,
ferredto. Mahabir Pershad Sixgh v. Hurri-
■R Pershad Nakain Singh
j I. L. R. 19 Gale. 629

'^®*. and Art. 14:4:—Can.ceUation

. tnsirurnent A suit was filed in 1888 on
half of a Malabar tarwad by two of its members
recover property improperly alienated in 1879
der a kanom instrument by the karnavan, who
a since been removed from office -.—Held, that

■ ce a prayer for the cancellation of the kanom
trument was not an essential part of the plaint-
» rejef, the suit was not barred by the three

.jira rule in Limitation Act, 1877, Sch. II, Art. 91.

j'Si V. KuNCHi A.MMAL . I. L. R. 14 Mad. 26

; ■ . 7 — ■ — — Suit to set aside.

-nation by de facto manager of Hindu endowment.
y^' possession of the manager of a Hindu endow-

n cannot be treated as adverse to the endow-

' ;vv'"m«7,'^u ^^ °^ ^'^- " °f tbe Limitation
I lAV ot 1877) has no apphcation to a suit to set
«|le an abenation of property by the de facto mana-
iimi; r r ^ endowment. Unni v. Kwmhi
& 9 • ?• i^ -'^«'^- ~^' ^°d Sikher Cha,ul v. '
'■hN-KAB Gm V. Ram Shewak Chowdhri
I I. L. R. 24 Calc. 77 !

oL;S '. ?^" i<^ruK,d-Suit for declaration \
OinvaltdUy of kanom and for possession of pro-
VOL. III.

LIMITATION- ACT (XV OF lQ77)-contd,
Schedule 11— contd.

Art. 91 — contd.

pertij. The junior members of a JIalabar tarwad
brought a suit against their karnavan and senior
anandravan and certain persons claiming under a
kanom granted by the former for a declaration that
the kanom was invalid and for possession of the land
demised with mesne profits. The suit was filed
nearly twelve years after the eisecution of the
kanom -.—Held, (i) that the suit was maintainable
by the plaintiffs ; (ii) that the suit was not barred by
limitation. Anantan v. Saxkaran

I. Ii. R. 14 Mad. 101

22. — and Art. 1^4.— Suit fo^

land— Cancellation of instrument affecting the land
by plaintiff. In a suit brought in 1889 to recover
land, it appeared that the defendant had been in
possession since 1885, having obtained in 1883 a
conveyance of the land from one of the plaintiffs.
It was found on the evidence that that conveyance
had been obtained by fraud and was supported by
no consideration. The other plaintiff claimed under
an instrument of 1884, which recited that of 1883
and was executed by the same person'. The plaint
contained no prayer for the cancellation of the con-
veyance of 1883 -.—Held, that the suit was not
barred by limitation. Sundaram v. Sithammal

I. Ii. R. 16 Mad. 311

_^23. and Art. 14A— Suit to

recover lands of ichich defendant had been in pos-
session as matiager during plaintiff's minority —
Defendant setting up deed of sale — Adverse posses-
sion. The plaintiffs sued to recover lands which
they claimed as their own, and of which they alleged
the defendant to have had the management during
their minority, he having been appointed a manager
of all their (the plaintiffs') property by their mother
and grandmother, uho were dead at the date of suit.
The defendant alleged that the land in question had
been sold to him, and produced a deed of sale, dated
3rd October 1876, purporting to have been executed
by the deceased ladies and by the plaintiffs. The
plaintiffs denied all knowledge of the deed, and
prayed that it might be cancelled. The defendant
contended (inter alid) that the suit was barred by
limitation, and pleaded adverse possession : — Udd,
that the suit was not barred, and that the })laintiffs
were entitled to recover — (i) supposing the deed not
to have been executed at all, the possession of the
manager would not become adverse until he dis-
tinctly repudiated the management ; (ii) if the deed
were executed by the ladies only, then Art. 144, and
not Art. 91, of the Limitation Act would apply ; (iii)
even if the minors whose names appeared in the deed
did actually execute it, nevertheless, anS the defend-
ant did not get into possession under it, but only
used it to defend his position. Art. 91 would not ap-
ply. Boo Jiiuitboo v. Ska Nngnr, I. L. R. 11 Bom-
78. Alamkhan v. Y.\sixkh.an

I. L. R. 17 Bom. 755

10 s

( 7139 )

DIGEST OF CASES.

( 7140 )

LIMITATION ACT (XV OP 1871)— cyntd.
Schedule II— contd.

Art. 91— contd.

24.

Suit to cancel a

docinnent — Cause of action. Where a plaintiff
sought for the cancellation of a mortgage-bond and
for i^ossession of the mortgaged property, alleging
that the mortgage was a sham transaction and
that she, the plaintiff, had subsequently remained
in possession and had only been dispossessed within
three years before suit : Held, that, it the plaintiff's
allegations as to remaining in possession were
true, the period of limitation for the suit could not
be computed from the date of the mortgage-
bond as provided in Art. 91 of Sch. II to the
Limitation Act (XV of 1877). JanJci Kmiwar
V. Ajit Singh, I. L. E. 15 Calc. 5S, distinguished.
ViTHAi V. Hari (1900) . I. L. B. 25 Bom. 78

25.

Suit to recover

pos-^essio7i — Kobala, setting aside of, if necessary.
Where it was alleged that defendant was in unla\\'f ul
possession by virtue of a kobala executed by plaint-
iff's father, and a suit was brought to recover
possession of the land : Held, that the suit was
governed by Art. 91 of Sch. II to the Limitation
Act, inasmuch as plaintiff could not succeed
unless he obtained a declaration that the Icobala
was not a valid one. Chunder Nath Bose v.
Ram Nidhi Pal (1902) . 6 C. W. K". 863

26.

Bond — Suit to

have the bond adjudged void — Specifix. Relief Act
(I of 1877), s. 39— Limitation. Art. 91, Sch. II
of the Limitation Act (XV of 1877), applies to a
suit brought under s. 39 of the Specific Relief
Act (I of 1877) to have a bond adjudged void and
to have it delivered up and cancelled. Bakatram
Nanuram v. KuarsetJI Jivajishet (1903^

I. L. R. 27 Bom. 560

27.

Suit to set aside

an instrument — Collusive sale-deed not intended to be
acted upon — Specific Relief Act (I of 1877), s. 39.
A suit to cancel or set aside an instrument must,
under Art. 91 of the Limitation Act, be brought
within three years from the date when the facts en-
titling the plaintiff to have the instrument cancelled
or set aside become known to him. The plaintiff
on 1st June 1895 executed a sham sale-deed in favour
of the defendants, neither party intending that it
should be acted upon. The defendants in February
1899 began to set up a claim to ownership on the
strength of the deed. On 3rd August 1900, plaintiff
brought this suit. On its being contended that the
suit was barred by limitation : — Held, that the suit
was not barred having been brought within three
years from the date when the plaintiff apprehended
that the defendants had set up a title under the
instrument. The facts, which would entitle a per-
son to bring such a suit, are stated in s. 39 of the
Specific ReUef Act (I of 1877). Singarappa v.
Talari Sanjivappa (1905)

I. li. E. 28 Mad. 249

LIMITATION ACT (XV OF 1877)-confei,
Schedule II — contd.

Art. 91 — contd.

Art. 91 does)

apply to defendants in possession — Madras Ber,
Recovery Act (VIII of 1865), s. IS— Seven day
required by the section means seven clear days. .
defendant in possession is not precluded fror
setting up the invalidity of a sale, because his righ
to have it set aside was barred at the date of sui
by Art. 91 of Sch. II to the Limitation Act. Tb
seven days ^^•hich, in fixing the day of sale und»
s. 18 of the Rent Recovery Act, must be allowv
from the time of notice, are seven whole days, ar
net seven periods of 24 hours calculated from thi
hour of the dav on \\hich the notice was issuet
McQueen v. Jackson, [1903] 2 K. B. 163, referred t
Raman ASARi v. Muthusawmi Naik (1906)

I. L. E. 30 Mad. 24

29. Limitation — 8v

for cancellation of a deed — Suit for a declaratic
that the transaction evidenced by the deed was pci
tious. A suit for a declaration that a transacticj
embodied in a particular deed was from its vef
inception a sham transaction is to be distinguish(|
from a suit for cancellition of the deed. ' Tl
former kind of suit does not fall \nthin the purvip
of Art. 91 of the second Schedule to the Limitati(:
Act. Sham Lall Mitra v. Amarendra Nath Bo-
I. L. R. 23 Calc. 460, and Petherpermal Chetty
Muniandy Servay, 12 C. W. N. 562, referred t
Jag.ardeo Sixgh v. Phuljhari (1908)

I. L. E. 30 AIL 8'(

30. Where sale tai,

ed by fraud, property not recoverable if sale i
avoided within period — Such sale, if intended to
operative, not void db initio. A sale of propoi
for consideration, intended to be operative betw.-
the parties, is not void ab initio, even though t
transaction is brought about by fraud. Suli
quent failure of consideration, in consequence
the purchaser refusing to perform his part of t
promise, will only make the sale voidable. T
title passes to the purchaser by such sale and i
vendor of those claiming to recover on his ti
must get the sale avoided wit'nin the period p
scribed by Art. 91, Sch. II of the Limitation A
before they can recover. Sundaram v. Sdhamn
I. L. R. 16 Mad. 311, distinguished. Janki Kun,
V. Ajit Singh, I. L. R. 15 Calc. 58, 85, follow
Nabab Mir Sayad Alam Khan v. Tasin Khan, I-
R. 17 Bom. 755, not followed. (ioviNDSAMi Pn.
v. Ram asami Pill Ai (1908) I. L. R. 32 Mad.

3L and Arts. 136, 141— SmiU)/

assignee of a reversioner to recover possession
immoveable property to which the reversioner bec"
entitled on the death of a Hindu widow— Alienal
by Hindu widow— Suit to set aside, limitat
applicable to. A suit by an assignee of a rev
sioner to recover possession of the immovea
property to which the reversioner became entitled^
the death cf a Hindu widow, is governed by Art.

( 7U1 )

DIGEST OF CASES.

( 7142 )

LIMITATION ACT (XV OF 1877)— contd.
Schedule 11— contd.

Art. Ql—concld.

read with Art. 136 of Sch. II of the Limitation
Act, and not by Art. 91 of that Act. Bijoy Gopnl
Mukerjee v. Nilnitan Mukerjee, 7 C. W. N. S64 :
n.c. I. L. B. 30 Calc. 990. distiniruished. Narmada
Debi v. Shoshibhtjsan Bit (1904^

8 C. W. N. 802

and Art, 141 —

See Hindu Law — Alienation.

I. li. R. 33 Gale. 257

and Arts. 142, 144—

See Hindu Law-

- Alienation.

13 C. W. N. 815

— and Art. 144—

j See Benamidar . I. L. R. 35 Calc. 551
Art. 92^(1871, Art. 93)—

.|" — ■ Suit to set aside

'•III— i rand— Cause of action. Where no fraud is
lUeged, the three j-ears' limitation in cl. 93 of the
econd schedule to the Limitation Act of 1871 will
un from any attempt to enforce the instrument,
.Ithough that attempt might not have been known

0 the person who brings the suit to declare it a
orgery. Plaintiff and defendant were the widows
t two joint uterine brothers. Defendant alleged
liat plaintiff's husband had left his share by will
) the husband of defendant. Plaintiff alleged that
>e will was a forgery, and brought a suit for a de-
aratiou of her right to her husband's share after
■tting aside the wiU -.—Held, that the substance

the claim being for a declaration of right, and not
> set aside the will, the suit was not governed

:? the three years' limitation provided by cl. 93,
h- II, Act IX of 1871. Nistariny Dassee v.

NCNDMOYE Dassee . . 2 C. Ij. R. 561

1 • "J—; — ; ■ Attempt to en-

)Ce tfeerf. In a suit in which the plaintiff had

t^ned a decree, and the defendant had appealed

I h^AA^^^^^ '" Council, a third party applied

oe added as a respondent, on the ground that

, registered deed, the plaintiff had conveyed

I'm a share of the pioperty decreed- the

jltendant objected that the deed was a forgery ;

• -_ an order was made that the apphcant should

I joined as a respondent, without deciding whether

'deed was or was not genuine, and " without

j'Udice, in the words of the order, "to any

I 'on or proceeding by the defendant" :-Z^e;X

illu- "-'"'"S "P ^^^^ ^eed and insisting upon

jjor this purpose constituted "an attempt to en-

I'rs .fV' X *'^^* ^ ^"'* brought more than three

I't «! . .u """^^^S °* *^^* order, by the appel-

b/ft !J J P^"^*y ^° jo'^'^'i as a respondent, to

Vi u; Ti ^\ ^^'^® *« *^ing false and fabricated

i oarred by hmitation under Act IX of 1871,

LIMITATION ACT (XV OF 1877-contd.
Schedule 11— contd.

Art. 92— concld.

Sch. II, cl 93. Fakharuddin Mahomed Ahsan v.

Official Trustee of Bengal I. L. R. 8 Calc. 178

10 C. L. R. 176

li. R. 8 I. A. 197

Affirming on appeal the decision of the Hi^^h
Court, where it was held that a suit to declare the
lorgery of an instrument issued or registered od
attempted to be enforced is required by Art. 93
of Sch. II, Act IX of 1871, to be brought within
three years of the date of the issue, registration, or
attenipted enforcement of the document, whichever
may hrst happen ; and if a document has once been
used, or attempted to be used, a party having notice
of such use or attempted use cannot, after the expira-
tion of three years from such use or attempted
use, bring a suit to have it declared a for<»ery by
reason of any further attempt to make use of it
Fakhaeooddeen Mahomed Ahsan v. Pogose

I. li. R. 4 Calc. 209
2 C. L. R. 573

3- and Arts. 93 and 118—

Suit to set aside adoption— Deed of permission to

adopt. The merits of a claim depended upon the

authenticity of an anumati-patro (deed of permission

to adopt) alleged to have been given to a widow by

her husband, who died in 1832. She first adopted

in 1884 a boy who soon after died. She then, in

1887, adopted the defendant, whose adoption the

reversionary heirs of her husband brought this suit,

in 1888, to have set aside -.-Held, that neither

Art. 92, nor Art. 93, of Sch. II of the Limitation

Act (XV of 1877) was apphcable to bar the suit.

There had been no " issue " of the instrument, the

anumati-patro, within the meaning of the former

article, the term " issue " having no apphcation to

such a document. There had not, within the

meaning of Art. 93 before this suit, been any

attempt to enforce the instrument against the

plaintiffs. Art. 118, as the suit had been brought

within due time after the adoption, did not bar it.

HuRRi Bhusan Mukerjee v. Upendra Lall

MuKERjx . . I. li. R. 24 Calc. 1

li. R. 23 I. A. 97

Art. 93—

See Fraud — Efkect hk Fraud.

I. li. R. 11 Bom. 708
Art. 95 (1871, Art. 95 ; 1859, s. 10)

See Debtor and Creditor.

I. li. R. 16 Bom. 1
See Llmitation . I. L. R. 34 Calc. 711
See Revenue Sale Law. s. 33.

13 C. W. N. 518

Suits to set aside decrees obtained bv fraud were

under Act XIV of 1859, governed by el. 10 of s. I.

Ajieen Chand v. Oomeid Singh . 1 Agra 114

^- ; Fraud. A sold &

decree obtained by him under Regulation VII of

10 s 2

( 7143 )

DIGEST OF CASES.

( 7144 )

LIMITATION ACT (XV OF 1877)— contd.
Schedule 11— contd.

Art. 95— contd.

1799 to B, but after the sale realized the decree
from the judgment-debtor. On application by B
for execution, on 2nd January 1862, the fraud was
discovered, and B was referred by the Collector to
the Civil Court. On 2nd October 1866, B brought
his suit for recovery of the purchase-money from
A : — Held, that the period of limitation ran from
the discovery of the fraud- The suit was not
barred. Gopal Chaxdra Dey v. Pemu Bibi

1 B. L. K. A. C. 77 : 10 W. R. 104

See Radhakath Das v. Elliott

6 B. li. R. 530
14 Moo. I. A. 1
s.c. Radhanath Doss v. Gisborxe & Co.

15 W. R. P. C. 24

2. . . Fraud— Suit to

recover purchase- money and costs. In a suit to re-
cover from the defendant the amoiint of purchase -
money paid by the plaintiff upon a sale to him of
certain lands by the defendant's father and the costs
incurred by the plaintiff in defending his title to the
property against a prior purchaser for the same land
from the defendant's father : Held, that the cause of
action arose on the discovery of the fraud upon the
plaintiff, and that there was knowledge of the fraud
at all events in October 1859, the date of the judg-
ment of the Civil Court affirming the title of the
prior purchaser, notwithstanding the presentation of
an appeal from that decision, and notwithstanding
that the plaintiff remained in possession of the land
until 1861. The present suit, having been brought
more than six years after the judgment of the Civil
Court, was held to be barred. Ramaswamy
MuDALi V. Valayuda Mudalt alias Aiyathoray
MuDALi .... 4 Mad 266

Act XIV of 18-59,

s. 10 — Fraud by failure to pay share of revenue.
S. 10 of the Act of 1859 was held not to apply to
a case where one of two co-owners of a patni fraudu-
lently failed to pay his share of the rent and permit-
ted the patni to be sold by the zamindar for arrears,
but the cause of action in a suit against him by the
other sharer was held to have accrued at the date
of the sale. Bhugwan Chunder Roy v. Raj
Chitnder Roy . . . 9 "W. R, 553

Extension of time

on account of fraud. Art. 95, Sch. II of the Limita-
tion Law, provides a period of limitation in
extension of the period which, in the absence of
fraudulent concealment would, under some other
article, apply to a suit, and not a period less than
that which under ordinary circumstances would be
allowed for a suit of the same nature. Opender
Narain Mookerjee v. Gudadhur Dey

25 W. R. 476

5. — Fraud — Suit for

possession of immoveable property. Art. 95 of the
fiecond Schedule to Act IX of 1871 was not intended

LIMITATION ACT (XV OF 1877)-coMfei.

Schedule 11— contd.
Art. Q5— contd.

to apply to suits for possession of immoveable
property when fraud is merely a part of the machi-
nery by which the defendant has kept the plaintiff
out of possession. That article has reference to
cases where a party has been fraudulently induced
to enter into some transaction, execute some deed,
or do some other act, and desires to be reheved
from the consequence of such act. Chundek Nath
Chowdhry v. TiRTHAxrxD Thakoor

I. L. R. 3 Calc. 504 : 2 C. L. R. 147

6. Suit to setasidi.

decree obtained, by fraud — Suit against express
trustee. Certain of the grantees of lands, granted
for the maintenance of the grantees and the supporf
of a mosque and other religious purposes, suedfoi
the removal of the superintendent of the propertj
from his office. The parties to this suit entered int(
a compromise, which made certain arrangements foi
the management of the property, and a decree wa:
made in accordance with the compromise. Tin
grantees who were not parties to this suit thei
sued to set aside the compromise and decree oi
the ground of fraud : — Held, that the suit' fei
within the terms of No. 95, Sch. II of th
Limitation Act, 1877, and there was nothing abou
it Avhich made the exemption of s. 10 of that Ac
applicable to it. Muhammad Bakhsh v. Muham
MAD Ali . . . I, L. R. 5 All. 29'

Suit to set t

sale on the ground of fraud. A suit to set aside a,
execution-sale on the ground that the decree wa
obtained by fraud is maintainable and is governei
by Art. 95 of the Limitation Act. MoTi La
Chakerbutty v. RussicK Chandra Bairagi

I. L. R. 26 Calc. 326 not

3 C. W. N. 39

See Bhobon Mohux Pal v. Nuxda Lal Dev

I. L. R. 26 Calc. 324 : 3 C. W. N. 39!

which places such an application under Art. 178 1

the Limitation Act.

and Arts. 12 and 144

Suit for relief on the ground of fraud — Suit to i
aside execution-sale — Suit for possession of «'
moveable property. Z and his three minor so
were joint owners of a village. This Z hypothecat'
by deed of simple mortgage to J. Subsequent
Z executed another deed of mortgage to J, part
the consideration whereof was the cancellation
the former bond, which was paid off and extingui^
ed accordingly. J, however, fraudulently caus
it to appear from the novating document that t
former mortgage was still alive, and after the dea
of Z put the bond in suit against Z'& widow, wl
being ignorant of the fraud, confessed judgment
guardian of her minor ,- ons. The entire rights a
interest of Z 's heirs were sold in execution of t
decree so obtained by J. Subsequently the fra^
was discovered, and Z 's sons brought a suit to ■
aside the execution sale and to recover possessionl

( 7145 )

DIGEST OF CASES.

( 7146 )

LIMITATION" ACT (XV OF 1871)— contd. LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.

Art. 95 — contd.

the property first mortgaged. In regard to three-
fourths of this property, they prayed that " posses-
sion might be awarded to them by establishment
of their right and share, by amendment of the reve-
nue papers." In regard to the remaining one-
fourth, they prayed for possession " by right of
inheritance to Z, " by cancelment of the execution
sale and of the fraudulent decree. They further
alleged that they had first become aware of
fraud upon the day when they obtained fn m
the registration office a copy of the novating
instrument in which the fraudulent entries were
contained : — Held, that the law of limitation appli-
cable to the case was not that contained in Art. 12,
nor in Art. 144, but that contained in Art. 95 of
Sch. II of the Limitation Act, inasmuch as fraud
vitiates all things, and prevents the appUcation
of any other law of limitation than that specially
provided for relief from its consequences. Held,
further, that the knowledge predicated by the
terms of Art. 95 of Sch. II of the Limitation Act
is not mere suspicion, but such definite knowledge
as enables the person defrauded to seek his remedy
in Court. Held, under the circumstances of the
present case, that the burden of proving such
knowledge on the part of the plaintiffs, prior to the
date alleged by them, lay upon the defendants.
Natha Singh v. Jodha Singh

I. L. E. 6 All. 406

9. and Art. 1^—Suit by

reversioner to esUdjlish his title to property sold in
(xecution of decree obtained against a widow ns
representative of her deceased husband's estate —
Friud — Collusion. The plaintiff as the nearest
heir of one 0 T, who died intestate in 1873, sued to
iset aside a sale of certain immoveable property
'belonging to the estate of the deceased, which had
been sold on the 3rd November 1875, in execution
]of a money-decree obtained by the defendant J
'igainst B V, the widow oi OT. B V had married
11. second time in 1876, and her second husband was
'.he brother of the purchaser at the execution-sale.
The plaintiff alleged that the decree had been
raudulently and collusively obtained on a bond
.n 0 T's name, which had been forged by J. The
uit was brought on the 28th January 1878, and the
"laintiff prayed that the sale might be cancelled,
jiaving been made in order to defeat his rights ;
hat he might be declared the heir of 0 T, and that
•psaession of the property with mesne profits
iiight be awarded to him. Tlie lower Courts
jismissed the suit, holding that it was barred
jy Art, 12, cl. {a), of Sch. II of the Limitation Act
XV of 1877). On appeal to the High Court:—
/eW that Art. 12 did not apply ; for, although the
jlaintiS sued to set aside a ^ale held in execution of
I decree he did so, not as one who would have been
pund by the sale if the suit had not been brought
ut in order to obtain a declaration that he was
|0t bound by it, the decree under which the sale
las held having been fraudulent and collusive ; so

Schedule 11— contd.

Art. 95 — contd.

that the cause of action could only have arisen
when he became aware of the fraud. Art. 95 of
Sch. II of Act XV of 1877 applied to the present
suit, which was therefore in time. Parekh Ran-

: CHOR V. Bai Vahkat . I. li. R. 11 Bom. Hq

10. and Arts. 63 and 84— 5M«t

on indemnity bond — Fraud — Cause of action. On
the 27th July 1868, plaintiff received from defendant
an indemnity bond, promising to indemnify plaint-
iff against the misbehaviour of a third person. On

j the 4th June J87l», the third person commit-

■ ted an act of embezzlement. In an action
broueht by plaintiff on the 28th July 1873
on the in(]emnit3- bond, the first CiRut held
the claim barred under els. 63 and 84 of Sch. II,

I Act IX of 1871. On appeal that decree was
reversed, and the claim allowed under cl. 95 of the

j same schedule. The High Court, on special appeal,
lieJd that els. ()3 and 84, and not cl. 95. applied to tho

! case, as the suit was one not for relief on the grour.d
of fraud, but for breach of a contract to indemnify
against fraud. Shapurji Jahangir.ii v. Scperik-

TENDENT OP THE POONA ClTY JaIL

12 Bom. 238

11.

Fraud — Sale for

arrears of revenue — Act XI of 1S'j9, s. 33 — A cl IX of
lSil,Sch. II, Art. 1-1. When one of several co-
sharers fraudulently contrived to have an estate
brought to sale for arrears under Act XI of 1859,
and purchased it in the benami of his son : —
Held, that another co-sharer aggrieved by the sale
could maintain a suit to have the property recon-
veyed, though the period limited by s. 33 of Act XI
of 1859 and Art. 14 of the second Schedule to Act
IX of 1871 for a suit to set aside the sale had
expired. The article which applies to such a suit
is Art. 95 of the latter Act. Bhoobun Chunder
Sen v. Kam Soonder Surma IMozoomdar

I. L. E. 3 Calc. 300

12. Suit to set aside

fraudulent revenue sale. Suit to set aside a sale of
so'd as if for arrears < f revenue under Act II of
1864 (Madras) on the ground of fraud, and to recover
possession of the land from the purchaser, who was
alleged to be party to the fraud : — Held, that the
suit was governed by Art. 95 of Sch. II of the
Limitation Act, 1877, Venkatapathi r. Subra-
MANYA . . . . I. L. E. 9 Mad. 457

13.

Revenue Recovery

Act {Madras)— Mad. Act II of 1864, «. of,'— Suit to
set aside a sale for arrears of revenue — Fraud.
In a suit, in July 1885, to set aside a sale of land
of the plaintiff, made in July 1884 as if for arrears
of revenue under Act II of 1864 (.Madras), on tho
ground that the sale had been brought about by
fraud and collusion between the purchaser and the
village officers, it was found the plaintiff" had know-
ledge of the alleged fraud more than six months
before suit : — Held, that the law of limitation
applicable to the case was s. 59 of Act II of 1864,

( 7147 )

DIGEST OF CASES.

( 7148 )

LIMITATION ACT (XV OF 1871)— contd.

Schedule II — contd-
Art. 95— contrh

and not s. 9") of the Limitation Act, and that the
suit was therefore barred. Venkatapathi v. Suhra-
mamja, I. L. R. 9 Mad. 467, explained. Baij Nath
Snhu V. Lala Sital Prasal, 2 B. L. R. F. B. 1, and
Lala Moharuk Lai v. Secretary of State for India,
I. L. R. 11 Calc. 200, considered. Vexkata v.
Chengadu . . . I. L. E. 12 Mad. 168

14.

and Arts. 12 and 144—

Sale for arrears of revenue— Suit for possession of
land— Fraud. The plaintiff's land was sold by the
Revenue authorities for arrears of assessment due
to the inamdar. The plaintiff applied to the Mam-
latdar to have the sale set aside on the ground of
fraud on the part of the inamdar, but his application
was rejected ; and the sale was confirmed in July
1S79. The auction-purcha-er was thereupon put
in possession. In 18S6 the plaintiff sued to recover
possession of the land in question:— //eZtZ, that the
suit, having been brought more than one year
after the date of the sale, was barred by Art. 12,
els. (6) and (c), of^ Sch. II of the Limitation Act
(XV of 1877). The sale was one in pursuance
of an order of the Collector or other officer of reve-
nue, and, if not for arrears of Government revenue,
was at any rate a sale for arrears of rent recover-
able as arrears of revenue. The plaintiff as oc-
cupant of the land was bound by the sale, unless
and until it was reversed, and the title of the pur-
chaser at the sale was a perfectly good title until
the sale was set aside in due course of law. Held,
also, that the plaintiff's allegation, that the sale
took place in consequence of the fraud of the
inamdar, would make not Art. 144, but Art. 05,
applicable to the case. Balaji Krishna v. Pir-
CHAND Budharam . I. L, R. 13 Bom. 221

15. and Art. 96— Suit for money

paid under Land Acquisition Act — Fraud or mix-
tul-e, knoivledge of. In 1876 K sued M on a bond,
dated 25th December 1869, for R5,000, by which
certain land in the district of South Tanjore was
hypothecated as security for the debt, and ob-
tained a decree on the 6th of April 1876 for the sale
of the lands, which he purchased on the 17th August
1876 for R6,000. K then discovered that part of
the land hypothecated, situated within the jurisdic-
tion of the subordinate Court at Kumbakonam, had
been acquired by a railway company under the
Land Acquisition Act in 1874, and that the compen-
sation, R460 (claimed by M's mother, who sold the
land to the company), was lodged in the treasury of
Kumbakonam in the name of JSVs mother. K
having applied to the subordinate Court for an order
for payment out of this sum, the Court, by order
dated 28th February 1880, directed that the ques-
t on of title to the money should be decided by suit.
K then sued M as the sole heir of his deceased
mother in the District Munsif's Court of Tiruvadi
(where M resided) for a declaration of right to, and
to recover, the said sum of R460. The suit was filed
on the 4th September 1880. On the 16th April

LIMITATION ACTiCXViOP 1877)-

Schedule II — contd.
Art. 95— contd.

conii.

1880, M assigned his interest in the money sued for
to V, who was made defendant in the suit on his
own application and pleaded that the suit was
barred by limitation, inasmuch as more than three
years had elapsed since the money was paid by
the railway company : — Held, that the suit was not
barred by limitation, as the compensation was
awarded to M's mother either through fraud on
her part or mistake on the part of the Collector,
and K did not become aware of the fraud or mistak?
until within six years of the suit (Arts. 95, 96 o '
Sch. II of the Limitation Act). Venkata Vieaea-]
gavayyangar v. Krishnasami Ayyangar

I. L. R. 6 Mad. 344

16.

and Art. 96 — Partition k

detriment of minor — Suit by minor on attaininc,
majority to recover his full share — Mistake in makiiu,
partition. Certain members of a joint Hindii
family partitioned the family property among then
in such a way as to give one member of the familj
who at the time of the partition was a minor, les;
than the share to which he was entitled. Th(
minor was represented in the partition by his uncle
though the uncle was not the natural guardian o
the minor, nor in any other way entitled to deal witl
the minor's property. The minor on attainin;
majority brought a suit for recovery of the full shar
to which he was entitled : — Held, that this was not I
suit for relief on the ground of fraud or mistake'
inasmuch as the partition could not under the ci;
cumstances affect in any way the rights of tb
minor. The suit was therefore not subject to th
limitation of three vears prescribed by Arts, 05 an
96 of the Sch. II of Act XV of 1877. Lal Bah.'
DUR Singh v. Sispal Singh I. L. R. 14 AIL 49

17. ' ' Other relief

in consequence of fraud — Suit for damages caused I
defendant's fraud. Plaintiff claimed compensatic;
from the defendant for damages caused to plaintij
by the fraud practised by the defendant. The su
had been brought more than two years but less thr
three years after the fraud complained of. J i
fraud was this : defendant, a judgment-creditor
some debtors, had caused a Court seal to be fraud'
lently placed on the door of a warehouse in whi<|
perishable articles belonging to the debtors _we
stored. This deceived the plaintiff, also a jud
men t- creditor, who was thus prevented from ol
taining the goods and selling them. The goo<
were ultimately obtained and sold at a loss. Dam
ges were now claimed, because the goods had detei
orated in quality, diminished in quantity and cor
manded a lower price in the market. On the que^
tion of limitation being raised : — Held, that^the sw
was not barred, it being governed by Art. 95 of So
II to the Limitation Act. The "other relief ref
red to in that article need not be of the same kind
" setting aside a decree obtained by fraxul, a'
the article is not thus limited to specific relief on t
ground of fraud. The expression ' ' other relief

( 7149 )

DIGEST OF CASES.

( 7150 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule 11— conid.
Art. 95— c-3«<fZ.

e comprehensive enough to include compensation
or damages caused to the plaintiff by the fraud
iractised by the defendant. Bank of Madras
•. MtTLTAN Chand Kanyalal (1904)

I. Ii. R. 27 Mad. 343

18. ' Limitation Act

XV of 1S77), Sch. II, Art. 95— Fraud— Suit to
ecover possession of dar-patni tenure purchased
icnami — Fraudulent arrangement between patnidar
ind henamidar by which decree was obtained render
■ hich the tenure was sold to patnidar — Beat pur-
iiaser's title not affected by decree or sale in execution
inder it. The plaintiff, in 1886, purchased benami
he dar-patni right in a certain tenure. In 1889
he patnidar entered into a fraudulent arrangement
vith the benamidar, whose name was entered in the
'ollector's book as the holder of the dar-patni, and
btained a decree for arrears of rent under which
he dar-patni was sold and purchased by the patni-
ar on 20th June, 1891. The plaintiff, the real
'urchaser and beneficial owner of the dar-patni,
dmittedly became aware of the fraud on or before
he 29th July 1892. In a suit brought on 25th
ictober, 1895, against the patnidar and the benami-
ar to recover possession of the dar-patni : — Held,
'bat the suit was not barred by the three years'
eriod of limitation provided by Art. 95 of Sch. II
'f the Limitation Act (XV of 1877) for a suit to set
side the decree on the ground of fraud. On the
icts the plaintiff was not estopped from denying
'le authority of his benamidar to deal with the
!;nure, and there was nothing to show that any-
ling more than the interest of the benamidar was
')ld. On this point the onus was on the defendants
|) show that the plaintiff could not succeed with-
Ut setting aside the decree, and this they had not
!.)ne. There was, therefore, nothing to show
jiat the plaintiff's title was in any way affected
IjT the sale. Annada Pershad Panja v. Prasan-
'iMOYi Dasi (1907)
I I. L. R. 34 Calc. 711 : L. R. 34 I. A. 138

I and Art. 120 — Fraud must be fraud on

itrty to the decree or transaction — Art. 120 applies
suits by reversioner for relief against fraudu-
]nt decree brought about by widow — Cause of action
'crues when injury done to reversioner — Civil Proce-
'tre Code, s. 244, docs not apply when decree itself
I impugned — Res judicata. Fraud within the
leauing of Art. 95 of Sch. II of the Indian Limit-
jion Act is fraud practised upon a party to the
I'cree or transaction in which the fraud was com-
mitted. Chandra Nath Chowdhry v. Tirthanund
ykow, I. L. R. 3 Calc. 504, followed. Article 96
I'es not apply to suits by a reversioner impeach-
]? on the ground of fraud against himself trans-
itions of a preceding qualified owner to which he
IS not party. The period of limitation applicable
such cases is that prescribed by Art, 120. If the
jrersioner brings a declaratory suit to set aside
3 dhecree or other transaction brought about by
e fraud of the qualified owner, the suit must be

LIMITATION ACT (XV OF 1817)— conid.

Schedule II — contd.
. Art. 9b—concld.

brought within six years of such decree or transac-
tion. He is not, however, bound to bring such a
suit and it is open to him to wait until the succession
falls in and if thereafter anything is done constitut-
ing an injury to his vested right, then to pursue his
ren^edy. Where property in the hands of the
reversioner is attached in execution of a fraudulent
decree against the widow, the injury is the attach-
ment and a suit for redress in respect of such
attachment will not be barred under Art. J20
if brought within six years of the attachment,
which is the cause of action. Parekh Ranchor v.
Bai Vakhat, I. L. R. 13 Bom. 119, not followed.
An objection by the reversioner in execution to the
attachment on the ground that the decree is not
binding on this reversionary right is not triable in
execution under s. 244 and any adjudication
thereon, not being appealable under s. 244, will
not be binding in subsecjuent proceedings. Tat.la-

PRAGADA SuNDARAPPA V. BOORFGAPALLI SreE-

ramulu (1907) . . I. L. R. 30 Mad. 402

Art. 96 (1871, Art. Ql)—Beng. Act

VIII of 1869, s. 2i — Suit for money paid in excess
of road cess. In a suit to recover money alleged to
have been paid by the plaintiffs to the defendants in
excess of the sum demandable by the latter from the
former on account of road cess : — Held (reversing the
decisions of the Courts below), that the suit was
governed not by the special law of limitation con-
tained in s. 27, Beng. Act VIII of 1869, but by
Art. 96, Sch. II of the Limitation Act (XV of 1877).
Mathura Nath Kundu v. Steel

I. L. R. 12 Calc. 533

Art. 97 (1871, Art. 98)—

See ante. Arts. 62 and 97.

Accrual of cause

of action. In a suit brought on the 29th July 1S67
to recover back a deposit of purchase-money paid
in September 1863, it appeared that the vendor
had re-sold the estate, and that the plaintiff
thereupon sued for and obtained a decree for
specific performance against the vendor and the
purchaser at the re-sale. On appeal by the pur-
chaser at the re-sale, this decree was reversed on
the 29th August 1865 -.-Held, that the suit to
recover back the deposit was not barred, since
the cause of action for its recovery did not accrue
till 29th August 1865. Ramjay Dey r. Srixath
Singh 2 B. L. R. A. C. 170 : 11 W. R. 24

2. Suit to recover

■money paid on con.tidtration which has failed. R
had entered into a contract with <S to grant him a
'■ zur-i-peshgi " lea.sc, and in consideration of an
advance of R400 agreed to execute the same
within one montii from the date of the agreement,
the 30th cf April 1869. 6' sued to enforce the agree-
ment t)n the 22nd of July 1870, but the suit was
dismissed on the ground that 5 had committed
a breach of contract in failing to pay the consider-

( 7151 )

DIGEST OF CASES.

( 7152 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 97— contd.

ation for the lease. On the 30th of July 1874,
S instituted a suit to recover the R400 advanced
to R. It was held that the suit was barred by
limitation under the provisions of Act IX of
1871, second Schedule, Art. 98. Ramphal Lal v.
Jafir Ali . . . . 7 N. W. 199

and Art.

-Suit to recover

furchase-money where purchaser was unable
to obtain possession — Failure of consideration-
money paid — Money had and received. A sale
which a member of a joint family (Mithila) had at-
tempted to make went off upon the objection made
by other co-sharers, but not before the purchase-
money had been paid. It might have been that the
agreement for sale was not void from the beginning,
but was only void upon objection being made ; and
if it was only voidable, the consideration did not fail
at once at the time of the receipt of the purchase-
money, so as to render it money had and received
to the use of the paver within the meaning of Art.
62 of Sch. II of Act XV of 1877. But it failed
at all events, when the purchaser being opposed
found himself unable to obtain possession. He
would have had a right to sue at that time to recover
his purchase-money upon a failure of consideration.
And, therefore, the case appeared to fall within Art.
97. It must fall either within tliat article or within
Art. 62. Hanxtman Kamat v. Hakuman Mandur
I. L. B. 19 Gale. 123
L. R. 18 I. A. 158

4. — and Art. Q2,—Suit to recover

se-money paid on a void sale — Failure
of consideration — Money had and received. In 1885
the plaintiff obtained from the defendant a sale-deed
of certain land and paid part of the purchase-money.
Subsequently a judgment-creditor of the defendant's
husband sought to execute his decree against the
land in question, and eventually, in October 1889,
obtained a decree in the High Court, under which
the plaintiff was ejected. The plaintiff now sued
in 1892, less than three j-ears from the date of the
last-mentioned decree, to recover the sum paid by
him to the defendant as above mentioned : — Held,
that the suit was not barred by limitation. Ven-

KATAXARASIMHULI7 V. PeRAMMA

I. L. R. 18 Mad. 173

5. and Art. 64i— Retention of

debt by debtor as part of consideration of another
contract. Money due on an account stated which
would as such have been barred in three years
from the statement, under Act XV of 1877, Sch. II,
Art. 64, becomes, for purposes of limitation, a debt of
another character, when, it having been the subject
of an arrangement whereby it was to be retained by
the debtor as part of the consideration upon a pro-
posed sale of land, that arrangement failed, the sale
not being speciflcally enforceable, and so declared by !
decree. In contemplation of a sale of land by the ,
debtor to the creditor, it was agreed that the book- \

LIMITATION ACT (XV OF 1877)-co«/
Schedule II — contd.

Art. Ql— contd.

debt should be retained by the former in satisfacti
of part of the price, but the parties failing to age
as to certain other terms, a suit, brought by the -
tending vendor for specific performance, was disrat-
ed on the ground that no effectual agreement M
been made. Held, that this decree brought aboi a
new state of tilings, and imposed a new obhgatiorn
the debtor, who could no longer allege that he .3
absolved by the creditor's being entitled to the 1 d
instead of the money. He became bound to y
that which he had re'tained in payment of his i 1,
the date of the decree giving the date of the fai^-e
of an existing consideration, within the meaninof
Art. 97. Basstj Kxjar v. Dhum Singh

I. L. R. U A1L7

6. Civil Proce.re

Code {Act XIV of 1882), s. 43— Suit for speic
performance — Subsequent suit for money paid ( a
consideration that failed. Defendant having f<;d
to convey certain property belonging to hirjif
and his son to plaintiff as agreed, plaintiff obtaed
a decree for specific performance, in pursu ce
of which the price was paid and a conyey.ce
executed. Plaintiff was then obliged to suc'or
possession, when it was found that the salelid
not bind the son's interest, and on grounc of
convenience plaintiff was awarded the valu of
defendant's share instead of a decree for partim.
He now sued to recover the balance of the ice
paid, and it was contended that the suit w£ in
fact, one for damages for breach of the conact
to convey, and as such was barred under 43
of the Code of Civil Procedure, inasmuch a the
damages claimed could have been sued for ithe
alternative in the previous suit for specificwr-
formance : — Held, that the suit was not ba.-d ;
it being, in fact, for the recovery of moneyaid
on a consideration that had failed, and the use
of action being different from that in the su for
specific performance. Held, also, that the sui'vis
not barred by limitation, inasmuch as the f

of consideration must be taken to have oci
when it was found, in the suit for possession
the plaintiff was not entitled to recover thej-'flo
share ; which date was less than three yearsk™
that upon wliich the present suit had been insti Ited,
Ai-t. 97 of Sch. II to the Limitaton Act, 1877, ^ing
applicable. Vexkatarama Ayyar v. Ve:iata
SuBRAHMANiAN (1900 ) . I. L. R. 24 Ma! 27

7. Contract AM

of 1872), s. 65 — Agreement to sell— Suit for ;Mi'
fie performance — Agreement declared unenforce?!^
Alternative claim for refund of considerationlpaui
thereunder — Limitation. The defendants, atiust
whom a decree for foreclosure was outstaiing^
agreed to sell certain immov-eable property t ^'^'^
plaintiff, and the plaintiff paid into Court, aipart
of the consideration, the amount due l ^''^
defendants under the foreclosure decree. Tl d^"
fendants neither executed a conveyance i ^^^

( 7153 )

DIGEST OF CASES.

( 7154 )

LIMITATION ACT (XV OF 1871)— contd.

Schedule 11— contd.
Art. 97— contd.

property whicli they had agreed to sell, nor did
they return to the plaintiff the money which he
had paid on their behalf. The plaintiff thereupon
sued the defendants, claiming in the alternative
either a decree for specific performance of the
agreement to sell, or a refund of the money paid
by him as part of the consideration for the sale
agreed upon. The Court of first instance gave
the plaintiff a decree for specific performance. On
appeal by the defendants it was held by the High
< 'lurt, (i) that the terms of the agreement to sell
'not being satisfactorily proved, no decree for specific
performance could be" made ; (ii) that the plaintiff
was therefore entitled to get back the money which
he had paid under the agreement ; and (iii) that the
plaintiff's alternative claim for a refund on failure of
;:'onsideration was governed as to limitation by
.\rt. 97 of the second Schedule to the Indian Limita-
:ion Act, 1877, and was not barred by limitation,
inasmuch as limitation only began to run from
;:he date of th High Court's decree declaring the
iigreement to sell to be unenforceable. Bassu Kuar
r. Dhim Singh, I. L. B. 11 All. 47, followed. Udit
SARAix MiSR V. Muhammad Mixxat-ulla (1903)
I. L, K. 25 AIL 618

Lim itation — Suit

'm cwenant in sale deed for repayment of coiisi-
(eration money in event of vendee being dispossessed —
Terminus a quo. The plaintiffs, vendees of im-
noveable property, sued upon a covenant in their
'ale-deed to recover the consideration money paid
'ly them, alleging that certain persons had obtained,
'^ co-sharers in the property sold, a decree against
|hem for possession on the ist of October 1894 and
jiad actually dispossessed them on the 18th of
|Vpril 1898. The suit was filed on the 1st of March
'^1: — Held, that on the cause of action stated
'n the plaint the suit was within time. Bui
'hand V. Parmanand, All. Weekly Notes (1901) 24,
'istinguished. Ram Chaxdar Singh r. Tohfah
I^HAKTi . . . I. Ii. R. 26 All. 519

I ° Agreement to sell

^-Resci88i_on of contract— Co^Uract Act (IX of 1S72),
j». 5-5, 65, — Suit to recover money paid as part of
^urchase money when consideration failed — Stiit
i>r specific performance and in alternative for
fund of money paid— Accrual of cause of ac-
on. The defendants against whom a decree
T foreclosure was outstanding agreed to sell
irtain immoveable property to the plaintiff, and
»e plaintiff paid into Court as a part of the
)nsideration the amount due by the defendants
jader the foreclosure decree. The defendants
k* u ^'^^'^"^^'^ a conveyance of the property
hich they had agreed to sell, nor did they return
' the plaintiff the money which he had paid on
e»r behalf. On 10th December 1896 the plaintiff
shtuted a suit against the defendants for a refund
the money so paid by him allesins; that the
I'tendants had failed to' fulfil their p^art of the

lilMITATION ACT (XV OF 1877)-<ontd.
Schedule II — contd.

Art. 97— contd.

contract, which was to execute a conveyance of the
property within one month. The defendants denied
this, and the first Court, while finding that the
period of one month had been fixed by the parties
for the execution of the deed of sale, held on
the evidence that time was not of the essence of the
contract, and that the plaintiff could not (as he
claimed) rescind the contract under s. 55 of the
Contract Act and recover the money he had paid :
and this decision was on appeal affirmed by the
High Court on 18th January 1900. On 16th
April 1900 the plaintiff sued the defendants claiming
specific performance of the agreement to sell or
in the alternative for a refund of the monej' paid
by him as part of the consideration for the sale
agreed upon. The first Court gave the plaintiff
a decree for specific performance. On appeal by
the defendants : — Held by the High Court on
30th April 1903, (i) that the terms of the agreement
to sell not being satisfactorily proved, no decree
for specific performance could be made ; (ii) that
the plaintiff was therefore entitled to recover the
money which he had paid under the agreement ;
and (iii) that, following the case of Bassu Kuar
V. Dhum Singh, I. L. B. 11 All. 47 ; L. B. 15 I. A.
211, the plaintiff's alternative claim for a refund
on failure of consideration was governed as to
limitation by Art. 97 of Sch. II of the Limitation
Act, 1877, and was not barred by lapse of time,
inasmuch as limitation only began to run from
the date of the High Court's decree declaring the
agreement to sell to be unenforceable. The plaint-
iff appealed from the decision of the High Court
of 18th January 1900, and the defendants from
that of 30th April 1908 to His Majesty in Council,
and both appeals were dismissed by their Lordships
of the Judicial Committee, who upheld the decisions
of the Hich Court. Amma Bibi v. Udit Narain"
MiSRA (J90S) . . . I. L. E. 31 AIL 68

10.

and Art, 83 — Vendor and pur-

chaser — Sale of property — No title in vendor to part
of property sold — Suit by purchaser for damagts —
Failure of consideration — Cause of action — Covenant
for quiet enjoyment. On the 22nd November, ISSO,
the first and second defendants, for themselves and
for the third defendant, sold a certain house to the
plaintiff's father. The sale deed, which was duly
registered, contained the following clause : " We
(vendors) are in enjoyment of the house as its owners
and if any one were to obstruct you in the enjoyment
of the house we would remove the obstruction so
as to put you to no trouble." In the year 1892
the plaintiff brought a suit to recover possession
of the house. Both the lower Courts awarded the
claim, but on the 26th August, 1S90, the High
Court, in second appeal, varied the decree, holding
that the one-third share of the house which belonired
to the third defendant did not pass by the sale,
and the plaintiff was awarded only two-thirds of
the house, of which he was put in possession. On

{ 7155 )

DIGEST OF CASES.

( 7156 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. Ql—concld.

the 24th August, 1890, the plaintiff brought the
present suit, claiming, inter alia, from defendants
1 and 2 to recover R225 as damages sustained by
him by reason of his being deprived of the one-
third share of the house : — Held, that the claim
for damages was a claim to recover money upon
an existing consideration that had failed, and that
it fell under Art. 97, Sch. II, of the Limitation
Act (XV of 1877), and not Art. 83, and was therefore
time-barred, not having been brought within three
years from the failure of consideration. The clause
in the sale-deed was not a contract of indemnity.
It was at most a covenant for title and quiet
enjoyment. The failure of consideration took place
when the plaintiff endeavoured to obtain possession
of the property and, being opposed, found himself
unable to obtain it. Bassu Kuar v. Dhnm Singh,
I. L. R. 11 All. 47, distinguished. Tulsi Ram v.
MuKLiDHAR Chaturbhtjj Marwadi (1902)

I. L. R. 26 Bom. 750

Art. 98 (1871, Art. 99)Suii to re-

cover money paid for tenure cancelled by sale for
arrears of rent. A suit to recover consideration-
money paid for a dar-patiii cancelled by the sale of
the patni for arrears of rent was governed by the
general rules of limitation under Act XIV of 1859.

JUDOONATH BlIUTTACHARJEE V. NOBO KrISTO

MooKERJEE . . . 3 "W. R. S. C. C. Ref. 2

Art. 99 (1871, Art. 100)-

iS'ee Contribution, suit for — Payment
OF Joint Debt by one Debtor.

I. li. R. 26 Mad. 686
Under Act XIV of 1859, the period of limitation
was six years for the suits mentioned in the first part
of this article, — viz., suits by one who had paid the
whole amount of a joint decree. Jumeelun v.
Wallee Ahmed . . . . 10 W. R. 31

Doorgamonee Dossee v. Doorga Bhunj.

2 W. R. 266

Nobo Kristo Bhunj v. Rajbullub Bhunj

3 W. R. 134

Suit for contribu-

tion— Cause of action. Under Art. 100 in Sch. II of
Act IX of 1871, when a person has paid more than
his own share of a joint decree, limitation runs
against a suit for contribution from the time that
the excess payment is actually made to the decree
holder. Radha Kristo Balo v. Rub Chunder
NuNDY . . .• . 3 C. Ij. R. 480

Suit for cordribu-

tion — Joint liability under decree. Qucere : Whether
in a suit for contribution on the ground that the
plaintiff and defendants were jointly liable under a
■decree, in execution of which the plaintiff's property
alone was sold, the limitation prescribed by Art.
100, Sch. II of Act IX of 1871 is applicable, or
that prescribed by Art. 118, Sch. II of the same

LIMITATION ACT (XV OP 1877)— con

Schedule II — zontd.
Art. Q9— contd.

Act. FUCKORUDDEEN MaHOMED AhSAN V. ?.-

hima Chunder Chowdhry I. L. R, 4 Cale. I'd

The period of limitation for suits mentioned in e
second part of this article, — viz., suit by a share n
a joint estate who has paid the whole revenue, s
also six years under the Act of 1859. Shadee 11
V. Bhawanee . . . 2 K". W. 2

Chohagur v. Thakoobee Singh . 1 Agra ^3
And the cause of action in such a suit was helrlo
arise from the same time as is now expressly ec -
ed. Bunwaree Mohun Saha v. Prannath S.a
2 W. R. ]9

Kally Sunkur Sundyal v. Huro Sunib
Sundyal . . . . 7 W. R. 9

and Art. 132 — Payment tj

entire rent by a co-tenant — Suit for conirfbuti.
One of two persons having a joint holding fro a
mittadar paid the whole of the mittadar's duesir
one year, and more than three years after the datof
payment he sued the other for contribution : — Hi,
that the payment did not create a charge on le
land, and A'rt. 132 of the Limitation Act is
therefore not applicable, and the suit was coi3-
qiiently barred by limitation under Art. 99. li'
nikachella i\ Shudacheli.a

I. L. R. 15 Mad. i8

and Art. 132— Suit to

cover assessment paid by a co-oioner of prop'y
from other co-owners — Charge on share of co-skoT-
In 1868, the uncle of the plaintiff brought a it
(No. 176 of I8G8) against five members of ,ie
undivided family, to which the defendants in le
present suit belonged, and obtained a money de(,e.
In execution of that decree, he attached and ild
certain land, in \^ hich all the members of the def<i-
ants' family were interested. At the sale he ;|i-
chased the land himself, and was put into posses.'jn.
In 1873, he began to pay the assessment upon^c
whole property. Subsequent litigatiun t u'k •■
between him and the defendants' family, P'
which the plaintiff separated from his uncli
obtained the property in question as his -
The result of that htigation was a decree l>.v
High Court, on the 23rd September 1879. dec!
that the plaintiff's uncle was only entitled t.
interest of the five members of the family why
been defendant in his suit (No. 176 of lb68) in
cation of the decree in which the property had ^u
sold. The plaintiff brought the present suitiin
1883, against the other members of the famibpo
recover their proportionate share of the assessrJJ*
for the years 1875—1878, during which periocfce
had paid the whole assessment. He prayed fj »
sale of their interest in the land. Both the l<ier
Courts held that the payment of assessment dia«*
create a charge on the property, and that the pb**
iff having omitted to sue within three years m
the date of the payments made by him, the pren*

{ 7157 )

DIGEST OF CASES.

( 7158 )

IMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 99— contd.

it was barred. On appeal by the plaintiff to the
igh Court; — Held, confirming the lower Court's
•cree, that the suit was barred. The plaintiff paid
e assessriient as full owner of the property, and it
IS entirely by his own action that the defendants
.d been excluded from the property, and did not
y their quotas of the assessment. Under those
•cumstances, the payments could not be regarded
■ salvage payments so as to make them a charge,
cording to equity, justice, and good conscience,
on the shares of the other co-owners. AcHUT
•, .ICHANDBA PaI V. HaRI KaMTI

I. L. R. 11 Bom. 313
6. and Art. 132 — Government

LIMITATION ACT (XV OF 1877)— con^d.

Schedule 11— contd.
Art. 99— concld.

>enue, suit to recover money paid on account
-Charge on immoreahle property — Co-sharer,
ipnent of arrenrs of revenue by. The plaintiffs
;i defendants were the proprietors of t^\o separate
its of lands, separately assessed with Government
•enue, but covered by the same towzi number,
lintiffs paid the Government revenue due
: m the defendants in respect of their plot from
lotember 1873 to June 1885 in order to prevent
• two plots being brought to sale, and on the 28th
i)tember 1885 instituted a suit to recover the
rount. It was contended on behalf of the plaint-
i that Art. 132 of Sch. II of Act XV of 1877
liilied to the facts of the casf , and that the plaint-
i were therefore entitled to recover all amounts
f paid within twelve years of date of suit : — Held,
It, as on the authority of Kimi Ram Doss v.
.r.afier Hosain Shaha, I. L. R. 14 Calc. S09,
t plaintiffs had no charge upon the property in
r,;iect of which the payment had been made, and
afn the authority of Rumdin v. Kalka Persad, L.
'^12 1. A. 12 ; I. L. R. 7 All. 502, Art. 132 only ap-
iIhI to cases wher^^ the money sought to be recover-
tiis a charge upon the property, the hmitation
ii!)licable to the case was that provided by Art. 99,
a|: the plaintiffs' claim in respect of all payments
iijle more than three years before suit was barred.

IJTIB LaL SaHU v. PuDMANUND SlXGH

i I. L. R. 15 Calc. 542

I- — ^ Arts. 99 and 132— 5m/< for

«'rtbtt(ion — Annuity charged on land — Adverse
Vyession. Where several properties are Uable for
t ! payment of an annuity, which has been dis-
<^,rged by the owner of one of such properties, a
sj'for contribution, being a suit to enforce pay-
n|rt of money charged upon land, is governed by
^1- 132 and not by Art. 99 of the second Schedule
I'jhe Limitation Act. Bhagu-an Das v. Hardin,
^\'- R. 26 All. 227. followed. The plaintiff's
Pl^erty had been sold in execution of the annuit-
J s decree on the 20th March, 1899. He derived
''^iitle from one L. G., who entered into possession
01 he decease of his alleged a\ if e, H. B., in the year
j • In 1868 L. G. executed a mortgage in favour
Wrie plaintiff's predecessors, and the latter, after
" g for sale, purchased the mortgaged property,

and entered into possession in 1878. Subsequently
in a suit brought by the plaintiff's predecessors for
the redemption of a mortgage executed by H. B. in
1865, it was decided that this latter mortgage could
not be redeemed, because H. B. was not the wife of
L. G. and that nothing, therefore, passed to the
mortgagees of the 1868 mortgage. In the present
appeal the plea was raised ^that the plaintiff ac-
quired no charge over the appellant's property : —
Held, that the charge subsisted, and, even if L. G.
had no interest, which he could pass to the plaintiff
the latter had acquired a good title by adverse
possession. Yakub Ali Khan v. Kishex Lal
(1906) . . . I. L. R. 28 Ail. 743

Art. 102—

Suits for wages other than those specified in cl. 2

of s. 1 of Act XIV of 1859 were governed by cl. 9 or

10 of that Act. Jumna Peeshad v. Bheem Sehj

1 Agra Mis. 8

NiTTO Gopal Ghose v. Mackintosh

6 W. R. Civ. Ref. 11

Suit for wages —

Cause of action, accrual of. Wages due to an
employe leaving his employer's service would be
due on the date when he left the service, and any
suit for those wages must, in the absence of any
subsequent account stated and settled between
the parties, be brought \uthin three years from
such date. Young v. MAcCoTiKiNDALE

19 W. R. 159

Upholding on review, MacCoekindale v. Youno
18 W. R. 466

Arts. 103, 104 (1871, Arts. 103

104)-

These articles give the result of, and adopt the de-
cisions under, the Act of 1859. As to jirfimpt (lo\\er
(Art. 103). Khajakannissa r. Risannissa Begum
5 B. li. R. 84 : 13 W. R. 371

MULLEEKA V. JuJlEELA . 11 B. Ij. R. 375

L. R. I. A. Sup. Vol. 135

Khajubannissa v. Saifoolla Khan

15 B. li. R. 306

Xathu v. Daud . 2 Bom. 309 : 2nd Ed. 292
B.C. Daud v. Nathu . 1 Ind. Jur. N. S. 113
L Dcni'iiid of por-
tion of dower — Cause of action. Where a wife
demanded only a portion of her dcnmohr or dower
from her husband, limitation as to her cliim to the
remainder will count from the date of her husband's
death, and not from the date of her former demand.
Begoo Jaun v. Gashee Bebki:

6 W. R. Civ. Ref. 19

As to deferred dower (Art. l(>4t. Mahak Alt v.

Amani . . . 2 B. L. R. A. C. 306

Mehran v. Kubiean . 6 B. L. R. 60 note

{ 7159 )

DIGEST OF CASES.

( 7160 )

LIMITATION ACT (XV OF 1871)— contd.
Schedule II — contd.

Arts. 103, 104— coj4C?d.

Khajarannissa v. Risannissa BEGtrar

5 B. li. E. 84 : 13 W. B. 371

2. Suit for dower —

Wrongftd possession. In a suit to recover the
balance or dower-money, it appeared that the
plaintiff's husband died in 1845, and the suit
was instituted in 1867 ; and that the plaintiff
had been in possession of her husband's estate
in lieu of dower up to 1861, and had continued
in possession, under a compromise ^^ith the heirs, till
1866. It appeared, however, that in another suit
she had been declared not entitled to possession ; —
Held, that her suit was barred. Kalsttmnissa v.
Wahidunnissa . 3 B. li. B. A. C. 176 note

Mahomed Faez v. Oomdah Begum

6 W. B. Ill

Under the Act of 1859, the six and not the twelve
years' period of limitation was held to apply to
suits for dower, as the right was held not
to constitute an interest in immoveable property.
Mahabu v. Amnia ... 10 Bom. 430
Wafeahv. Saheeba . . 8W. B. 307
Unless it was sought to charge it on immoveable
property by establishing a lien thereon. Janee
Khantjm v. Amatool Fatima Khatook

8 W. B. 51

S.C. on appeal, Woomatool Fatima Begtjm v.
MEEEtrNMTTNNlSSA Khanttm . 9 "W'. B. 318

Wafeah v. Saheeba . . 8 W. B. 307

In the latter case, — that is, ■nhere it is sought to

make the dower a charge on immoveable property,

— the suit would now probably come under Ai't. 132

o. the Limitation Act

Contract to hold

money on loan — Bepayment to he made by husband in
case of divorce — Dower. In the case of an advance
of money on a contract that it should be held on
loan by the husband (a Mopla follo^\^ng the Maho-
medan law) without liabilitj' to interest, the repay-
ment to be made by the husband in the event of
divorce taking place, or out of his effects at his
death : — Held, that the Mahomedan law of dower
was not applicable to the suit, and that the period
of limitation was three years from the, date of the
divorce or the death of the husband. Anonymotts
Case 5 Mad. 280

— Art. 105—

See Civil Procedure Code (Act XIV
OP 1882), s. 43 . I. li. B. 30 All. 225
Under the Act of 1859, the six j-ears' period of
limitation was applicable to suits of the nature de-
scribrd in this article (suits by a mortgagor after a
mortgage is satisfied for surplus collections receiv-
ed by tlie mortgagee)

See Lall Doss v. Jamal Ali

B. Ii. B. Sup. Vol. 901 : 9 W. B. 187

LIMITATION" ACT (XV OF 1877)-
Schedule II — co'xtd.

■ Art. 106 (1871, Art. 106)-

See ante, ss. 7 and 8 axd Sch. II t
106.

See post. Art. 120 .1. L. B. 4 AIL 37

See Civil Procedure Code (Act IV
OP 1882), ss. 43,373.

I. L. B. 30 All. 78
See Partnership 12 C. W. N. 56

1. To suits of the nature described in Art.oiJ
(suits for an account and share of the profit t a
dissolved partnership), the six years' perioof
limitation applied under the Act of 1859. Jvla
Pebshad v. Kedab Nath . . 3 Agra 75

NuRsiNGH Doss V. Narain Doss 3 N. W.IT
Bhutoo Ram v. Puhul Chowdhry 7 W. 136

Kalee Kristo Chowdhry v. Haran Cha:ra
Dey 19W.E.17

2. Suit in riure

of partnership demand. Plaintiff was in the seice
of the principal defendant (C), who was carryu on
a partnership business with another as founder nd
1 engineers. During such service, plaintiff, (7, ila
third party entered into a joint adventure or <rt-
nership, with respect to the purchase, employ trr
I and sale of a steam tug, the profit or loss
j shared equally, — it being arranged that C
retain in his hands plaintiff's monthly sala:^
appropriate so much as might be necessai, io
\ plaintiff's share of the expenses. After sa of
I the tug, the account was made up, showir a
separate loss to each partner of R 2,341, and afred
and approved by each some time prior to ith
July 1868. On the date last mentioned p nt-
iff signed an account between himself ai C,
in which a balance was struck in plaintiff's f^ur
J and immediately reduced by payment »
I part to R4,054. On the same date, (in-
structed his clerk to WTite to plaintiff claimi ^o
; deduct board and lodging expenses, and on
July 1868 plaintiff replied refusing to allow li
duction. A further portion of the balan< ■
j afterwards paid by C. On the 31st July 1871. i
j iff instituted a suit against C and the third i>
i framing his claim as if it were in the natm
partnership demand : — Held, that, on the 29t!
1868, when plaintiff signed the account, ^
balance had been struck, all partnership ti; •
tions had ceased between the parties, and th "«
was entitled to sue for the balance of all salai^nd
moneys in C'.s- hands ; but that his claim was^t »
partnership demand. MacCorkindale v. J">2
18W. B:6»

s.c. affirmed on review. Young v. MAcGof?!*
DALE 19W.B.59

3. Hindu l*^

Mitakshara doctrine of joint family F^P-^'T
Partnership. V and his five sons const; ««

( 7161 )

DIGEST OF CASES.

( 7162 )

MITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 106— concld.

individed Hindu family. V and his three elder
n lived apart from the two younger sons,
were in possession of some ancestral pro-
,'v. The two younger sons were plaintiff and
"defendant, respectively, in this suit. Plaintiff
1 1 this brother for an account and for partition of
( ain property which he alleged to be the property
1 joint family consisting of the first defendant
J himself. The property had, as plaintiff alleged,
K I acquired from the funds of a business which
! ■oen carried on jointly by him and first de-
i. ant until 1894, and continued by the first
!( ndant until the institution of the suit. It was
J 'fd that, although there had not been an express
,; cmcnt of partnership, in the circumstances of
h case an agreement under wliich plaintifi had
H.me jointly interested in the business ought to
X inferred -.—Held, that plaintiff had not a joint
nrestin the contract business and was not entitled
o aim a share in it. Held, also, that, even if
n an interest had existed, plaintiff's claim was
)5'?d bv limitation. Moung Tim Hnyin v. Mah
Tin Myah, L. R. 27 L A. 1S9, 'Jistinguished.
ilABSANAM MAISTEI V. NaEASIMHLTT MAISTKI

PI) . . . .1. L. E. 25 Mad. 149

Art. 107,(1871, Art. 107)—

uler Act XIV of 1859, six years was the period

i nitation for the suits mentioned in this article

si's by the manager of a joint estate of an undivi-

le amilyfor contribution in respect of a payment

uji? by "him on account of the estate). As to the

of action, the_decisions were in accordance

this article.

Ram Krishna Roy v. Madan Gopal Roy.

6 B. L. B. Ap. 103 : 12 W. B. 194
MALA Debi I'. Tarasundari Debi

e B. L. E. Ap. 101 : 14 W. E. 480

— — Joint Hindu family

hts of manager — Contribution, limitation

'ti\spect of, suit for. Where money is borrowed

■> •• manager of a joint Hindu family on his

security for purposes of necessity, his right

iliution arises when he expends the money,

'!• mutation runs against his claim from that date

'<n«,iot from the date on which he repays ths loan

"IK nlcases his security. Sunkur Pershad v.

■ r<hml, I. L. R. 5 Calc. 321 ; Ram Krishna

^Uidnn Gopal Roy, 6 B. L. R. A p. 103 : 12

I '14, followed. Aghore Nath Mukhopa-

"U, f. Grish Chunder Mukhopadhya

j I. L. E. 20 Calc. 18

' _^ Art. 108 — Hindu Law —

'lip with manager of joint family — Death
Kjcr, effect of — Joint family ami joint
'-""/ 'nmness, nature of — Partner, right of, to sue
lor I'.rticular assets after suit for general account bar-
fed\ Where K, the manager of a joint Hindu
^JC, enters into a partnership for the family bene-

lilMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.

Art. 108— condd.

fit with S, a stranger to the family, the partner-
ship is dissolved on the death of K, in the absence
of any agreement with the survivors. Hr)w far a
joint Hindu family resembles a corporation sole
and how far a joint family busine.-s resembles a
partnership considered. Samrdbhai Nathubai v.
Someshvnr Mawjal a7id Harkisan, 1. L. R. 5 Bom. 3S,
referred to. Although a suit for general account of a
partnership wall be barred under .Sch. II, Art. 106 of
the Limitation Act, if brought more than three
years after the dissolution of the partnership, a
suit wiU he for recovering a share of any particular
assets received by a partner after such dissolution,
if such suit is brought within time and if such claim
having regard to previous dealings, is not inequit-
able. Merwanji Hormu-sjee v. Rustomji Burjorji,
I.L.R. 36 Bom. 628, and Knox v. Gye, L. R.
5 H. L. 656, followed. Sokkaxadha Vannimun-

DAR Row V. SOKKANADHA VaNXIMUNDAR (1905)

I. L. B. 28 Mad. 344

Art. 109 (1871, Art. 109)-

X. Act XIV of 1859

s. 1, cl. 16 — Suits for mesne profits. Six years was
the period of hmitation for suits for mesne profits
under cl. 16, s. 1 of Act XIV of 1859. Lalla

GOBIND SUHAYK V. MUXOHUR MiSSER

1 W. E. 65

Ram Surun Singh v. Gooroo Dyal Sixgh

1 W. E. 83

Pratap Chandra Burua v. Swarxamayi

3 B. li. E. Ap. 81

ISSUREENUND DUTT JhA V. PaRBUTTV C'hCRX

Jha 3W.E.13

Rajiaput Sixgh v. Fcrloxg . 3 W. B. 38
LucHMAN Singh v. Miriam . 5 W, B. 219

MUXEERAM ACHARJKE V. TCRUXGO

7 W. B. 173

Balum Bhutt alias Ram Bhctu v. Biiuobttn

Lall eW.E.78

N\w\B N\zni OF Beng.\l v. Raj Coomaree Debee
6 W. B. 113

Kattama Nachiar v. Scbrarama Aivax. Za-

MIXDAR OF SHIVAGUXGA V. SUBRARAMA -^'VAX

4 Mad. 302

HCREEHUR MOOKERJEE V. ^^OLLAH AKIMU.LBrR

17 yf . B. 209

Juggut Chcxder Bh.\doory v. ^h'pJ'""^™
BH.4D00RY .... 22W. E. 265

See, also, Modhoosoodun Saxdyal c. Suroop

Chunder Sircar Chowdhry t a /iqi

7 W. E. P. C. 73 : 4 Moo. I. A . 431

„ : Cause of action

—Suit for mesne profits. In calculating the six
years' mesne profits which the decree-holder was

( 7163 )

DIGEST OF CASES.

( 7164 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 109— contd.

entitled to recover in this case, the cause of action
was held to have arisen at the end of the year in
which the ouster took place. Thakoor Doss

ACHAEJEE ChUCKERBUTTY V. SoSHEE BhOOSTTN

Chatterjee ... 17 "W. R. 208

Ram Chundra Roy v. Ambica Dossea

7 W. E. 161

3. Cause of action —

Date of ascertainment of amount. Where the
amount of mesne profits cannot be ascertained till
after the end of the year, the cause of action was
held not to arise until the end of the year.
Byjnath Pershad v. Badhoo Singh

10 W. R. 486

Thakoor Dass Roy Chowdhry v. Nobin Kristo
Ghose 22 W. R. 126

Or in cases of dispossession, the date of disposses-
sion is the date when the cause of action arises in
suits for mesne profits. Ekbal Ali Khan v.
Kalee Pershad . . . 3 W. R. 68

4. ■ Mesne profits —

Wrong-doers independerU of the defendant — Civil
Procedure Code, 1882, s. 211. In a suit brought on
the 26th September 1893 for mesne profits of land,
for the possession of which a decree had been pre-
viously obtained against the defendant, the plaint-
iff claimed damages in respect of the FusU years
1297-1300— the year 1297 F, ending on the 28th
September 1890. The defendant objected [inter
alia) that the claim in respect of the period beyond
three years before the date of suit was barred by
limitation, and that she was not hable for profits
of the lands from which she had been dispossessed
by others -.—Held, (i) under Art. 109, Sch. II of the
Limitation Act, the defendant was liable for the
mesne profits received by her or which she might
have with due dihgence received during the three
years before the date of suit, and not before. The
period of three years fixed, has no reference to the
time when rents faU due. Byjnath Persad v. Bad-
hoo Singh, 19 W. R. 486 ; Thakoor Dass Acharjee
Chuckerbutty v. Shoshee Bhoosun Chatterjee, 17 W.
E. 208 ; and Thakoor Dass Roy, Chowdhry v. Nobin
Kristo Ghose, 22 W. R. 126, distinguished, (ii) In
the case of every wrong the liabihty of the defend-
ant is limited to damages for the wrong which he
has himself done. With reference to the definition
of metne profits in s. 211 of the Civil Procedure
Code, if the defendant was excluded from posses-
sion, she could not be said to have actually or even
impliedly received the profits, nor could she with
ordinary or extraordinary diligence have received
them ; the case was remanded to determine what
mesne profits were payable between the 26th Sep-
temper 1890 and the date, if any, when disposses-
sion was proved. Abbas v. Fassihuddin

I. L. R. 24 Gale. 413

LIMITATION ACT (XV OF 1877)-c(wj(

Schedule II — contd.
Art. 109— contd.

°' ~- Dispo3ses,n

under decree subsequently reversed by Privy Com I
Where plaintiff had been dispossessed of lands un;r
a decree of the Sudder Court, subsequently 5-
versed by the Privy Council on appeal, limita n
as to his right to mesne profits during his disposs-
sion ran from the date of the decree of the Pi v
Council. Mashook Ali Khan v. Jowala Br h
2 N. W. iO

JOYKURUN LaLL V. ASMUDH KOOER

5 W. R. .5

6. — Cause of actio -

Dispossession. The cause of action in respec-,o
mesne profits accrues on the date on which, butir
the fact of dispossession, the plaintiff would hre
been entitled to receive them. Lakhi Kant is
Chowdhry v. Ram Dayal Das

5 B. L. R. Apll

s.c. Luckhee Kant Doss v. Deen Dyai Dii

14W.R.2

7. Default cqusebji

act of another party — Assam — Suit for partitti.
Where a purchaser of a four-anna share was Ipt
out of possession of a portion of the property si,,
and having recovered judgment in a suit broitit
for possession and mesne profits against the ventr,
an arrangement was come to pending appeal, at
within a year the parties should appoint an arb a-
tor to fix on the shares and make a division, acin
default of such appointment an apphcalion sbld
be made to the Hakim ; but that if no such ajli-
cation was made within the year, and a suit sh Id
be subsequently brought, the party suing sh^ld
lose his right to mesne profits : — Held, that, uisr
the circumstances, the defendant having prevejd
the plaintiff from making the necessary applicajn
within the year, and proceedings having gompn
for years to carry out the partition, the plaintiff *3,.
on the termination of these proceedings, cntibd
to sue for mesne profits. Where proceedings ^W
going on to effect a partition, the right to particjM
properties being in dispute : — Held, that the iht
to mesne profits accrued at the termination of ttse
proceedings, and that the party improperly keptut
of possession was entitled to sue for all mesne lO-
fits during the period of his non-possessn.
subject to any grounds which the defendant cjld
show which would entitle a Court of equit;;to
deprive the plaintiff of his rights. In a jut
brought in January 1862, respecting propty
situated in Assam, mesne profits for twenty-tM
years prior to 1854 were decreed, subject to if
equitable claims for deducting any portion, ct
XIV of 1859 not applying to Assam previouiW
July 1862. NiLKAMAL Lahuri v. GiraoiiJ"
Debi . 7 B. L. R. 113 : 15 W. R. P. C»

8. Period when^

— Time for making up accounts. \\'here the-c-
counts of an estate are made up at the end of''»

( 71G5 )

DIGEST OF CASES.

( 7166 )

IMITATION ACT (XV OF 1371)— cyntd.
Schedule U—contd.

Art. 109— contd.

ordinary year, mesne profits are rightly treated as
iue at the end of each year, and interest may be
dded by wav of damages. Chowdhry Wahed
\li v. Jumaye . . . 19 W. R. 87

9. ] Suit for, hy person

stored to possession under decree of Privy Council.
'he right of action to a person who is restored to
ossession under a decree of the Privy Council does
|nt accrue before the decision of the Privy Council ;
'id he is entitled to interest on mesne profits from
.., time of his ejectment up to one j-ear after the
fcision of the Privj' Council, that being held to be

reasonable time to be allowed to him for com-
encing his suit. Asmudh Kooer v. Joykurun

ALL. JOYKUKUX LaLL V. ASMCDH KoOER

5 W. R. 125

10. — ■ Suit for pos-

sMon. In a suit instituted after Act XIV of 1859
me into force, mesne jjrofits can only be recovered
r the six years next preceding the institution of
c suit. A regular suit for mesne profits will lie
ter a suit for possession, if in the latter suit no

' .lestion of mesne profits was raised or decided-
I.VTAP Chandra Btjrfa v. Swarnamay'i

3 B. L. R. Ap. 81 : 12 W. R. 5

11. — Suit for mesne

ofits. A claim for mesne profits during a period
'seeding the three years next before the filing of
.1? plaint is barred by Act XV of 1877, Sch. II, Art.
JJ. Keishnanaxd v. Partab Narain Singh
! IL. R. 10 Calc. 792 : L. R. 11 I. A. 88
12. ■ Mesne profit^

Patni. A patni makal was sold under Regulation
|I of 1819 for arrears of rent on the I8th May
IJO, when the defendant purchaser came into pos-
jsion. The plaintitT-owner of the patni insti-
•jed a suit for setting aside the sale and obtained a
•I'ree and took possession on the 11th September
|)l. The plaintig then instituted the present
i.t on the 6th April 1904 for mesne profits for the
I'iod the defendant was in possession, viz., from
'•|hMay 1900 to 11th September 1901 :— ^eW,
l|.t the defendants wrongfully received profits,
i|ich were receivable by the plaintiti. Art. 109 and
ij' Art. 120 governed the case, and the claim for
<| period (18th May 1900 to 5th April 1901), pie-
<|ing three years next before the institution of the
ft was barred by limitation. Krishnanand v.

nuar Partab Narain Sitigh, I. L. R. 10 Calc.

. and Dhunput Singh v. Sarasicati Misrain, I. L.

19 Cak. 267, referred to. Pe.aky JIohon Roy v.
Sarkar (1908)

I. L. R. 35 Calc. 996

1* Mesne profits,

»' to recover— Putni sale, illegal, set aside — Liniit-
aln^Starting point— Limitation Act {XV of 1S77),
*~\- II, Art. 109. Where a putnidar whose putni
»j sold under Reg. VIII of 1819 obtained a decree
»jing aside the sale and for recovery of possession

LIMITATION ACT (XV OF 1877)— confi.

Schedule U—contd.
Art. 109— concld.

and subsequently on obtaining possession brought
a suit for recovery of mesne profits : Held, that
Art. 109 of Sch. II of the Limitation Act applied to
the case, and limitation ran from the time the pro-
fits were actually received and not from the time
when the putnidar recovered possession. Dhanput
Singh v. Sarnsivati Misrani, I. L. R. 19 Calc. 267,.
distinguished. Peary Mohux Roy r. Khelaram'
Sarkar (1908) . . . 13 C. W. N". 15

14. and Art. /^O— Mesne profits

misappropriated — Suit for value of crops. The de-
fendant obtained a decree in a suit brought against
the plaintiiJ for arrears of rent and for ejectment, in
execution of which he evicted the plaintiff from his
holding, and, after getting possession thereof, car-
ried away certain crops which were then standing
on the land. The plaintiff appealed from the decree
obtained by the defendant, and on appeal it was
set aside on the plaintiff depositing the rent due,
and the plaintiff recovered possession of his tenure :
— Held, that such a suit was a suit ' ' for profits of
immoveable property belonging to the plaintiff
\vrongf ully received by the defendant ' ' within the
meaning of Act IX of 1871, s. 109, and not a suit for
" compensation for any wrong, malfeasance, non-
feasance, or misfeasance, independent of contract,"
within the meaning of Art. 36 of the same Act.
Shurnomoyee v. Pattarri Sirkar

I. li. R. 4 Calc. 625

15. Suit for damages

to personal property. Plaintiff brought a suit to
establish his right to a fishery, which was finally
decided in his favour. After the final determination
of the suit in which his title to the fishery was tried
he brought the present suit to recover damages, and
the Small Cause Court decided that the suit being
for damages to personal property ought to have
been brought wnthin a year from the time of the
injury having been committed : — Held, that the suit
was not one for damages for injury to personal pro-
perty, but for mesne profits, and that the six years'
limitation was applicable to it. Elahee Bcksh v.
Sheo Narain Singh . . . 17 W. R. 360

Art. 110 (1871, Art. 110 : 1859, s. 1,

cl. 8)-

See post. Arts. 116, 120 and 110.

I. Ij. R. 25 Bom. 556
(See Co-sharer Landlords.

I. li. R. 35 Calc. 744

See Land-revenue.

I. li. R. 26 Mad. 730

Suits for arrears

of rent. Suits for arrears of rent were under Act
XIV of 1859 to be instituted within three years
from the last day of the Bengal (or other) year in
which the arrears claimed shall have become due,
GoBiND Kumar Chowdhry v. Hargopal Nag

3 B. I,. R. Ap. 72 : 11 W. R. 53T

( 7167 )

DIGEST OF CASES.

( 7168

LIMITATION ACT (XV OF 1877)— cowW.

Schedule II — contd.
- Art. 110 — contd.

2. Suit for arrears

of rent. Where a part-proprietor of a certain talukh
who was also a co-sharer in a fractional portion
thereof, brought suits against his co-talukhdars in
the Ee venue Court for arrears of rent without allow-
ing any deduction on account of his share, which
suits were dismissed for want of jurisdiction, and
afterwards brought a suit for the rent for the same
period in the Civil Court : — Held, that the suit was
not one for the recovery of arrears of rent within
the meaning of s. 29, Bengal Act VIII of 1869, but
was governed by the provisions of Act XIV of 1859.
The suit was one for rent of land, and fell within the
scope of cl. 8, s. 1, of that Act. Gobindo Coomar
Chowdhky v. Manson

10 B. L, R. 56 : 23 W. K. 152

LIMITATION" ACT (XV OF 1877)_con
Schedule II— contd.

Suit for compen-
A suit to make the

sation in shape of rent for land.
defendant liable for compensation in the shape of
rent for the land which he held in the name of his
servant was held to be not a suit for rent under
Bengal Act VIII of 1869, and was subject to the six
years' limitation prescribed by el. 16, s. 1, Act XIV

of 1859. KiSHENBUTTY MiSRAIN V. ROBERTS

16 W. R. 287

4. Suit for compen-
sation for use and occupation of land. Where a
contract of lease was found to be a benami trans-
action, and the lessor, though he had all along re-
ceived the rent from the ostensible lessees, was held
to be entitled, when the tenure passed by sale in
execution to a third party, to claim the rent due
from the beneficial lessees : — Held, that it was not
a suit for rent, but for compensation for use and
occupation of the lands demised, and cl. 16 of s. 1
of Act XIV of 1859 was applicable to it. Debnath
Roy Chowdhry v. Gtjdadhur Dey. Pitambur
Sen v. Debnath Roychowdhry . 18 W. R. 132

As to s. 1, cl. 8, of the Act of 1859, see Poulson
V. Chowdhry . . . . 2 W. R. 21

Unnoda Persaud Mookerjee v. Ivristo Coomar
MoiTRo . 15 B. li. R. 60 note : 19 W. R. 5
and Huree Kishore Roy v. Hur Kishore Adhi-
kabee 23 W. R. 134

5. -Act XIV of 1859,

s. 1, cl. S — Suit for rent under benami lease — Use and
occupation. Plaintiff, who was the zamindar,
having obtained a decree against the auction -
purchaser of a patni tenure held under his zamindari
for the rents of the years 1279, 1280, and 1281,
and being unable to realise the whole amount due
under the same, subsequently learned that A, who
had purchased a share in the patni from B, who
derived his title from the original defendant, had
been in possession during these years. He then
sued A for the balance due under the first decree.
The suit was filed on the 21st Baisack 1285 -.—Held,
that the second suit, whether it was governed by

Art. 110— contd.

Bengal Act VIII of 1869 or by the general law
limitation, was barred, inasmuch as it was a suit i
rent and brought more than three years after t ,
arrears became due. Pitambar Sen v. Debiu.
Roy Choivdhry, IS W. R. 132, cited and distinguif
ed. Ram Rtjnjun Chuckerbutty v. R
Lall Mukhopadhya . 5 C. Ii. R. (

6. ■ Madras Rent j-

covery Act (Mad. Act VIII of 186-5), s. 10— Suit ■
arrears of rent — Date from which limitation runs, i
a suit for arrears of rent due under a decree gi i
under s. 10 of the Rent Recovery Act (Madras jb
VIII of 1865) the period of limitation in Art. 1 ,
Sch. II of the Limitation Act, commences from a
date when the plaintiff was in a position to sue t
rent, i.e., the date of the decree. Sobhana:i
Appa Rati v. Chalamanna

I. L. R. 17 Mad, 25

7. Madras Rent ;-

covery Act [Mad. Act VIII of 1S65), s. 10—Suio
recover arrears of rent — Proceedings in Reve.e
Court to enforce acceptance of pottah tendered — T.e
from which period of limitation is computed.. la
suit for rent for a period which had expired me
than three years before the date of the plaintit
appeared that proceedings had taken place i:a
Revenue Court under the Rent Recovery it
(Madras), 1865, to enforce acceptance by the 'f
fendant of the pottah tendered by the landlcj.
These proceedings had terminated on appeaJn
favour of the landlord less than three years be.-e
the institution of his suit -.—Held, that theperiojf
limitation applicable to the suit was not com4-
able from the date of the termination of the ;3-
ceedings under the Rent Recovery Act, and »t
the suit was barred by limitation. SobhanWi
Appa Rau v. Chalamanna, I. L. R. 17 Mad. '5.
overruled. Sriramtjlu v. Sobhanadri Appa iU
I. L. R. 19 Madil

8. Madras ReruU-

covery Act (Mad. Act VIII of 1865), s. lO—Suto
recover arrears of rent — Suit to enforce acceptance
pottah pending — Time from tvhich period of liifa-
tion is computed. The cause of action, with referjoe
to limitation, in a suit for rent, accrues on the .te
on which the rent is payable by custom or cent t,
irrespective of whether pottah has been ten!
or a suit to enforce acceptance of pottah und'
Rent Recovery Act (Madras), 1865, is pen. -■

KUMARASAMI PiLLAI V. PRESIDENT, DlST'^

Board of Tanjore . I. L. R. 22 Mad. M
Rangayya Appa Rau v. Venkata PvEddi ;
I. L. R. 22 Mad. 249 j'te

Paramasiva Goundan v. Kandappa Gor^iAN
I. L. R. 22 Mad. 250 ?t»

9. Suit for arrec of

rent by assignee of landlord — Bengal Temncy^'^t
Sch. Ill, Art. 2. Art. 2 of Part I of Sch. Ill c^ff

Bengal Tenancy Act does not apply to a suit

brcjht

( 71G9 )

DIGEST OF CASES.

( 7170 )

LJMITATION" ACT (XV OF 18T7)—contd.

Schedule 11— contd.
Art. 110— contd.

>y an assignee of the arrears from the landlord,
lilt Art. 110 of the second Schedule to the Limita-
ion Act is applicable to such a case. Mohendra
.'ath Kalamaree v. Koilash Chandra Poora

4 C. W. N. 605

10. Enforcement of

■vdor's lien. In 1887 the plaintiff sold land to
I'fenilant No. 1, who, in 1894, while part of the
urchase-money remained unpaid, sold it to the

fendants Nos. 2 to 4, M-ho had notice of this fact,
he plaintiff now in 1895 sued to enforce his ven-
ir's lien -.—Held, that the suit was barred by
imitation Act, 1877, Sch. II, Art. 111. Natesan

HEITI V. SotlXDARARAJA AyvAXGAR

I. L. R. 21 Mad. 141

See Chunilal v. Bai Jeteii

I. li. R. 22 Bom. 846

ll- Suit for arrears of

nt— Madras Rent Recovery Act (Mad. Act VIII
, 18§5), ss. 7, 9, 10, 11, U— Proceedings by land-
•d to determine rent— Period from which limitation
,ns. The section of the Madras Rent Recovery
i't (Mad. Act VIII of 1865) relating to recovery
1 arrears of rent apply to ascertained rents, not to
iits at rates which have yet to be ascertained.
l^Art.^llO of Sch. II of the Limitation Act (XV of
:77), "arrears of rent " means arrears of ascer-
! ned rent, which the tenant is under an obliga-
.(■n to pay, and which the landlord can claim, and,
;;necessary, sue for -.—Hdd, therefore (reversing
\i decisions of the Courts in India), that where it is
!?cssary for the landlord to take proceedings
ider the Madras Act VIII of 1865 to have the
:|)per rate of rent ascertained, the period of limi-
■ ion in a suit for arrears of rent runs from the
4 e of the final decree determining the rent and
1 ; from the close of the fasli year for which the
>|t IS payable. Sohhawidri Appa Rait v. ChaUi-
»i«»w, /. L. R. 17 Mad. 225, approved. Srira-
'!'« v. Sobhandri Appa Ran, I. L. R. 19 Mad. 21,
<,rruled. There is no distinction in this respect
•jween cases in which, in the proceedings to as-
tjtam the rent, the Courts have aporoved of the
I|ta tendered by the landlord and those in which
^yhave modified it. Rangayya Appa Rao
>OBBA Sriramulu (1904)

I. L. R. 27 Mad. 143
s.c. L. R. 31 I. A. 17

~ Rent in arrear

I date en u-htch it is due by contract or custom,

n »uch rent ascertained and not in dispute. Rent,

n the amount is ascertained, is in arrear, within

meanmg of Art. 110 of Schedule II of the Limit-

« n Act from the date on which it is due by e-x-

P' s contract or custom irrespective of the end of

asli or of the exchange of pottah and muchilika.

D, "ki k "^^^^^■ai'am share due to the landlord is

V loie by custom as soon as the harvest is over,

w=|ent IS ascertained and payable at the end of the

1 VOL. III.

LIMITATION ACT (XV OF IQlly-contd.

Schedule II — contd.
Art. 110— condd.

harvest and a suit for rent will be barred, if not
brought Avithin three years of such date. Rangayija
Appa Rao v. Bobba Sriramnlu, I. L. R. 27 Mad. 143,
distinguished. Although tender of a pottah is a
condition precedent to proceedings for the recovery
of rent, there is nothing in the Rent Recovery Act
or the Limitation Act to make the date of such
tender the starting point of limitation in such cases.
Arunachellam Chettiar v. Kadir Rowthen
(1905) . . . I. L. R. 29 Mad. 556

and 116 — Suit to recover rent

on a registered lease — Limitation. Held, that a suit
for the recovery of rent based upon a registered
lease is governed as to hmitation, not by Art. 116,
but by Art. 110 of the Indian Limitation Act, 1877.
Vmesh Chunder Mundal v. Adarmoni Dasi, I. L. R.
15 Calc. 221, dissented from. Ram Naraix v.
Kamta Singh . . I. L. R. 26 All. 138

Art. 111-

1- ■ Arts. Ill and 116

— Suit to recover unpaid purchase-money, and to
enforce vendor's lien. A suit to recover unpaid
purchase-money due in respect of a sale of land, and
to enforce the vendor's lien, is governed by Art. Ill
of Sch. II to the Limitation Act. Natesan Chetti v.
Soundararaja Ayyangar, I. L. R. 21 Mad. 141,
followed. Bar Led Muhatndi, I. L. R. 21 All. 454,
discussed. Avuthala v. Dayum.ma (1900)

I. li. R. 24 Mad. 233

2. and 132— Art. 132

applies to suits to enforce the charge created by s. 55
of the Transfer of Property Act — Tran^sfer of Properly
Act (IV of 1882), s. 155. The statutory charge
which an unpaid vendor obtains under s. 55 of the
Transfer of Property Act, is different in its origin
and nature from the vendor's lien given by English
Courts of Equity to an unpaid vendor. Webb v.
Macpherson, I. L. R. 31 Calc. 57, referred to and
apphed. The Article of the Limitation Act appli-
cable to a suit to enforce such charge is Art. 132
of Sch. II and not Art. 111. Natesan Chetti v.
Souiulararaja Ayyangar, I. L. R. 21 Mad. 141,
Avuthalav. Dtyuinma, I. L. R. 24 Mad. 233, and
Suhramani Ayyar v. Poovan, I. L. R. 27 Mad.
28, overruled. Ramakrishna Ayyar r. Sibrah-
MANiA Ayyan (1905) . I. li. R. 29 Mad. 305

3. and 132— Limitation — Transfer

of Property Act (IV of 1SS2), ss. 55 (4) (b)—SuU
by vendor to enforce charge for unpaid balance of
purchase money. Held, that suit for the enforce-
ment of the payment of purchase money by sale
of the purchased property is a suit to enforce a
statutory charge differing from the lien, which
an unpaid vendor in equity possesses for the
recovery of the balance of his purchase money, and
that the Article of the Limitation Act applicable is
Article 132 and not Article HI. Webb v. Macpher-
son, I. L. R. 31 Cede. 57 ; Har Lai v. Muhamdi,

10 T

( 7171 )

DIGEST OF CASES.

( 7172 )

LIMITATION ACT (XV OF 1811}— contd.
Schedule II — concld.

Art. Ill— con^d.

L. R. 21 All. 454, and Ram Krishna Ayyar v.
Subrahniania Ayyar, I. L. R. 29 Mad. 305, followed.
Baldpo Prasad v. Jit Singh, All. Weekly Notes
(1S91) 130, overruled. MuNiR-rx-NissA v. x\kbar
Khan (1908) . . . I. L. R. 30 All. 172

Art. 113 (1871, Art, 113)—

See Aebiteatiox — Awards — Enforcing
Awards . I. L. R. 23 All. 285

See Specific Performance — Special
Cases . . I. L, R. 3 Mad. 87

Sale at fair valua-

LIMITATION ACT (XV OF 1877)_co«/
Schedule 11— contd.

tion. Ascertainment of price. In a suit for the
specific performance of an agreement entered into in
1858 to grant a pottah M'hen required, it apjoeared
that the plaintiffs applied to the defendants for a
pottah in 1874, and in March 1S7.5 the defendants
finally refused to make the grant, and the plaintiffs
thereupon instituted their suit for specific perfor-
mance : — Held, that they were not barred by limi-
tation, as under Act IX of 1871, Sch. II, Art. 113,
thej- had three years within which to bring their
suit from the time when they had notice that their
right was denied. New Beeebhoom Coal Com-
pany V. BULORAM M AH ATA

I. li. R. 5 Calc. 175 : 2 C. L. R. 268

s.c. on appeal to Privy Coimcil, where, however,
this point was not dealt Avith.

I. L. R. 5 Calc. 932 : L. R. 7 I. A. 107

2. Specific perform-
ance— Trust — Laches. In 1860 certain shares in a
company then formed were allotted to S on the
understanding, as the plaintiffs alleged, that 120 of
such shares should, on the amount thereof being
paid to S, be transferred to and registered in the
books of the companj' in the names of the plaintiffs.
In 1862 the plaintiffs completed the payment to aS
in respect of the shares, and during his lifetime
received dividends in respect of the said shares. S
died in 1870, leaving a Anil, probate of which was
granted to the defendant as his executor. In a suit,
brought by the plaintiffs, after demand of the
shares from the defendant, and refusal by him to
deliver them, to compel the defendant to transfer
the shares to the plaintiffs, and register the same
in then- names, the plaintiffs' case ^as that the
shares had been held in trust for them, and that
consequently their suit Avas not barred by lapse of
time : — Held, that the transaction between S and
the plaintiffs did not amount to " a trust for anj'
specific purpose " Anthin the meaning of s. 10 of
the Limitation Act, or to a trust at all, but to an
agreement of which the plaintiffs were entitled to
specific performance ; and the limitation applicable
was tliat provided by Art. 11.3 of Sch. II, Act IX
of 1871, and therefore the suit A^as not barred.
Nor were the jjlaintiffs disentitled to relief by
reason of any laches or delay in bringing the suit.
Ahmed Mahomed Pattel i;.'Adjein Dooply

I. li. R. 2 Calc. 323

Art. V\3~contd.

3. and Art. 144— iSmjY on anaud

— Meaning of "■contract''' in Art. 113 — Speic
Relief Act (I of 1877), s. 30. By an aAvard beai.r
date 7th July 189,3 plaintiffs Avere held to be -
titled to certain immoveable property. On Ih
November 1897, they filed a suit to' enforce e
! aAvard. On its being contended that the suit ,s
j barred by limitatioii under Art. 113 of the Ci-
tation Act, it being in fact for the specific perfoi-
ance of a contract : — Held, that the suit was >t
barred, the article applicable being Art. 144. A it
I to enforce an award cannot be treated as a sa o
I enforce a contract Anthin the meaning of Art. 3,
the Avord ' ' contract ' ' in that article being use in
I its ordinarv sense. Sukho Bihi v. Ram Sukh ,s,
{ /. L. R. 5 All. 263, and Raghnhar Dial v. Man
Mohan Lai, I. L. R. 16 All. 3, refeiTed to. SoijA-
i VALLi Ammal v. Muthayya Sastrigal
! I. L. R. 23 Mad. )»

4. Suit for sptfic

performance of contract— Sv it on award — Sf'fic

I Relief Act (I of 1S77), s. 30. A suit for dkov
j based on an award, Avhich directs its jayint
by the defendant to the plaintiff, is A-irtuaUy aiit
to hdve the aAvard specifically enforced ; and abv
s. 30 of the Specific Relief Act, 1877, award-re
placed on the same footing as contracts. Art. 3,
Sch. II of the Limitation Act, 1877, is appliule
to such a suit. Sukho Bibi v. Ram Stjkh D

I. L. R. 5A11.8S

5. Specific RditAd

{I of 1877), s. 30 — Stiit for balance due mviean
award. A suit for the recover}^ of a balance of miey
due under the terms of an aAvard, being virtuf\' »
suit for the specific enforcement of the aAvard. '"
reason of s. 30 of the Specific Relief Act.
subject to the limitation prescribed by Art. 1
Sch. II of the Limitation Act, 1877. Sukho h
Ram Sukh Das, I. L. R. 5 All. 263, foli
Raghubar Dial v. Madan Mohan L.vl

I. L. R. 16 A

and Art. 14A— Vendor m

chaser — Contract of sale — Suit for specific pi
ance of contract — Suit for possession of imw',
property. A contract Avas made for the .-
certain immoA'cable property, in the cA-ent ■
A-endor obtaining a decree establishing his fi
the propert}% in a suit Avhich had been brouL'
that purpose. The vendor obtained such dec m
that suit. The purchaser subsequently brou^t fc
suit ' ' to have a sale-deed executed and compltM-
and for possession of the property. It Avaspon-
tended that the limitation applicable to the su,«'»s
that provided by Art. 144 of the LimitatioiAct,
1877, and not Art. 113 -.—Held, that the suii^M
essentially one for specific performance of cor>t-^w
and the limitation applicable Avas Art. 113. "^
contention that, so far as the suit was for poss-^'on
of immoveable property, it should be govercl by
Art. 144, Avas invalid. The right to pos£--^i'>"

( 7173 )

DIGEST OF CASES.

( 7174 )

IMITATION ACT (XV OF 1877)— conW.
Schedule II — contd.

LIMITATION ACT (XV OF 1877)— conW.
Schedule U— -contd.

Art. 113— contd.

Art. 113— co»<d.

Tang out of the contract of sale, and the relief by
ving possession was comprised in the relief by
ecitic performance of the contract of sale, and
uld not bo governed in this suit by any but Art.
3. But assuming the suit might, so far as limi-
tion was concerned, be entertained, still, as the
,ht to possession was dependent on the contra,ct
sale, if the suit could not be maintained for speci-
performance of the contract, it could not be
nntained for possession of the property sold
!er the contract. Muhi-uddin Ahmad Khan v.
uusRai . . . I. li. R. 6 AIL 213

7. Breach of con-

I't — Suit for ■'specific performance. In a suit to
( orce the performance of an agreement alleged to
ue been entered into between the plaintiffs and
!■ principal defendants whereby the latter, in
iiisideration of an undertaking subsequently car-
1 1 out, was to admit the former, who were his
1 rine brothers, to a share of the property of his
f ipting father, which included an interest in land:
- leld, that the defendant was in a position to fulfil
.t t contract on the deaths of his adoptive parents,
r )ectively, and that plaintiffs' suit not having
In brought within three years of the dates of
t 56 deaths, was barred by limitation. Mohadeo
Hi V. NuNDUN Lall . . 12 "W. R. 22

!• ■ Exchange — Agree-

v\t that if either party ivere deprived of land

rxived he should receive other land. In 1871 the

p ntiffs and the defendants executed a deed where-

b -.hey effected an exchange of certain lands, and

et I party agreed to resist by legal process or by

b'ging an action any claim or interference with

Ucther in respect of the property exchanged, and

i« .ear the costs which might be ""incurred in such

je I proceedings in certain proportions, and that,

if : a result of such proceedings either of the par-

tl>i were deprived of the lands exchanged or any

pa, of them, the other should make it up out of

wlkin of his own land. In 1881 the plaintiffs

0' ght an action against a third party who claimed

': t.' some of the exchanged lands, and joined the

.|3 as defendants, the latter admitting the

title. The plaintiffs were defeated in

•■ -uil in 1882. In 1885 (within three years

<r«j the time the defendants refused to aive them

o| '^ land) they sued on the deed of 1871 to have the

■ therein provided for carried out : — Held,

ill Bench, that the cause of action arose in

'H there was a loss to the plaintiffs in the

''•mplated in the deed, and the defendants

d upon specifically to perform their cove-

'■ that the present suit, having been brought

ice years after their refusarto perform it,

n the time fixed bv Art. 113, Sch. II of the

•• "n Act (XV of 1877). HoRi Tiwari v.

I -^LNATH TlWAEI . . I. L. R. 10 All. 27

-1 ~ ^ ■ Suit for recovery

"I imoveable property based upon a compromise-

Compromise not itself a document of title — Limitation.
Certain Revenue Court suits were referred to arbi-
tration and an award was made to the effect that
the " plaintiff's claim in all the suits be dismissed
with costs and that the defendant bear his own
costs." The award, however, went on to declare
that, according to the terms of a compromise ar-
ranged between the parties, the parties should
transfer the one to the other different portions of
the property, which was in dispute. No steps were
I actually taken to complete the transfer thus recited
as having been agreed to between the parties, but
one of the parties brought a suit to recover the pro-
perties agreed to be transferred to him : — Held,
that the limitation applicable was that prescribed
by s. 113 of the second Schedule to the Indian Limit-
ation Act, 1877 : the suit was not one for possession
of immoveable property to which Art. 144: would
apply. Sornavali Ammal v. Muthayya Sastrigal,
I. L. E. 23 31 ad. 593, and Sheo Narain v. Beni
Madlio, I. L. R. 23 All. 285, distinguished. Tale-
war Singh v. Bahori Singh (1904)

I. li. R. 26 All. 497

10. Chaukiduri chaJc-

ran lands — Resumption by Government — Putni lease

j — Suit by putnidar for possession of the chakran

i lands. By virtue of a putni lease granted by the

j defendant-landlord in 1854, the plaintiff was en-

I titled to the chaukidari chakran lands of the mehal,

j which were subsequently resumed by Concernment,

! and not made over to the zamindar till 1899. Upon

j a suit by the putnidar to recover possession of the

chakran lands, the defendant contended that the

suit was barred by limitation under Art. 113 of the

I Limitation Act : — Held, that, inasmuch as the lands

I were not in possession of the plaintiffs nor in that

j of the defendant, until they were made over to the

latter by Government, the suit was one for the

specific performance of the contract of 1854. and

tlie period of hmitation applicable would, therefore,

be that prescribed by Art. 113, and not Art. 142 or

Art. 144 of Sch. U o'f the Limitation Act. Raxjit

Sing v. Radha Charan Chandra (1907)

I. L. R. 34 Calc. 564

Arts. 113, 120, 144, YIQ—Snit for

possession of land on the basis of award — Award
— Suit — Arbitration — Effect of omission to sue to
enforce or to file award — Civil Procedure Code (Act
XIV of 1SS2), s. 525 — Merger of cUiim in award.
A suit for recovery of possession of land on declar-
ation of the plaintiff's right thereto on the basis
of an award made bj- arbitrators appointed by
the parties is one to which Art. 144 of the Second
Schedule of the Limitation Act applies and may
be brought within 12 years from the date of the
award. Such a suit cannot be regarded as a suit
for the specific ix;rformanco of a contract, and
neither Art. 113 nor Art. 120 nor Art. 178 of Sch. II
of the Limitation Act can apply to it. A vaUd
award is operative even though neither party has

10 T 2

( 7175 )

DIGEST OF CASES.

( 7176 )

LIMITATION ACT (XV OF 1811)— contcL

Schedule II — contd.
Art. 113— concld-

sought to enforce it by suit or by application under
s. 525 of the Code of Civil Procedure. Per Mooker-
J EE, J. : — As the ordinary rule, a valid award oper-
ates to merge and extinguish all claims embraced in
the submission, and after it has made the submission
and award furnish the only basis by which the
rights of the parties can be determined, and consti-
tute a bar to any action on the original demand.
Sornavalli Ammal v. Mutlmyya Sastrigal, I. L. R.
23 Mad. 593 ; Sheo Narain v. Beni Madhab, I. L. R.
23 All. 285; Muhammad Newaz Khan v. Alain Khan,
I. L. R. IS Calc. 414, L. R. 18 I. A. 73 ; Krishna
Panda v. Balaram Panda, I. L. R. 19 Mad. 290 ;
Sukho Bihi V. Ram Sukh Das, I. L. R. 5 All. 263 ;
Raghubar Dial v. Madan Mohan Lai, I. L. R. 16
All. 3 ; Wood V. Griffith, 1 Swanst. 438 : IS R. R. IS ;
Commings v. Heard, L. R. 4 Q. B. 669; Clegg v.
Dearden, 12 Q. B. 576 .- 76 R. R. 360 ; Jafri Begam
V. Syed Ali Raza, I. L. R. 23 All. 383 : L. R. 28 I.
A.lll,SLndRani Bhagoter. Rani Chandan, 1. L. R.
11 Calc. 386 : L. R. 121. A. 67, referred to. Bha-
JAH.VRI Banikya v. Behary Lal Basak (1906)

I. li. R. 33 Calc. 881

Art. 114 (1871, Art. 114.)— Sidt

by company for price of shares allotted — Riejht of
defendant to rescind contract — Laches of defendant.
In a suit by a company for the price of shares al-
lotted to the defendant in which the defence was
that there had been misstatements and misrepre-
sentations which entitled him to rescind the con-
tract. Quaere : Whether, if Art. 114 of Sch. II of the
Limitation Act was applicable to the case and the
defendant was entitled to bring an action for the
rescission of the contract within three years from
the time when the facts entitling him to rescind the
contract first became known to him, the princiiDle
laid down in PeeVs case, L. R. 2 Ch. Ap. 674, and
Laurence's case, L. R. 2 Ch. App. 412, under
which the defendant would be barred by his laches
from rescinding the contract, apphes to the case.
Ttnnent v. City of Glasgoiv Bank, L. R. 4 Ap. Cas.
615, referred to. Mohux Lall v. Sri Gaxgaji
Cotton Mills Co. . . 4 C. W. K". 369

Art. 115 (1871, Art. lib)— Suit

for breach of contract. In a suit to recover a sum
of money (principal and interest) on account of
rent paid for a certain mouzah which had been
farmed out to tlie plaintiff by defendant No.
1, but of which the plaintiff could not get pos-
session:— Held, that the cause of action, as laid
in the plaint, was a breach of contract on the
part of the principal defendant, and the action
was one for damages falling under s. 1 of Act
XIV of 1859 within the meaning of cl. 9 if the
contract of lease was verbal, and within cl. 10 if
it was in writing. The case was not that of a suit
for breach of an implied contract as distinguished
from a contract of actual agreement, and the obli-
gation of the defendant to make good the loss caused

LIMITATION ACT (XV OF 1877)-coft/

Schedule II — contd.
Art. 115 — contd.

to the plaintiff was not one merely which the ,v
raises upon a state of circumstances independeiy
of any actual agreement. Brooke v. Gibbon

19 W. E. S4
Upheld on review . . . 21 W. R, 7

2. Implied cont ■(

— Contract to do repairs. Where the defendant i-
ployed the plaintiff to repair a bungalow, buto
express agreement was come to as to the payir.t
for the repairs, it was held that on the perform e
of the repairs on implied contract to pay their it
value arose, for which the period of Umita n
was six years, as ruled in Umedchand Huki-
chand v. Bulakidas Lakhnnd, -5 Bom. 0. C. 16. Nto
Ganesh Datar v. Muhammad Khan

9 Bom. liO

Contract bd<

doctor and patient as to fees. Where a doctc is
engaged to treat a patient without any arrangerit
being made at the time as to his fees, there is ana-
plied contract, an action for breach of which as
governed by the three years' limitation under 1,
cl. 9, of Act XIV of 1859. Hfrish CHr>£R

SURMAH V. BrOJONATH ChUCKERBUTTV

13 W. Ei6

Suit for mtij

received by vakil and paid to agents of client — C'm
of action. A vakil received money for his clit«
and gave it to their agent for dehvery to them be
agent did not deliver it accordingly, and the kil
was compelled by the Civil Court to pay it cr
again. The vakil thereupon sued the agent t-
money : — Held, that the case fell under s. 1,
of the Limitation Act, 1859. Held, also,
treating the case as one of implied contra( '..
cause of action arose when the plaintifi wa-
pelled to pay money which the defendant wa>
ly bound to pay ; and thirdly, that, if the del' i
was in truth the plaintiff's agent, but had in
the plaintiff to make him so by the fraudul'
presentation that he was the agent of the ti
the cause of action would have arisen at the
very of the fraud. Penuballi Subharamab, i
V. Bhimaraju Ramaya . * . 2 Ma: 21

5, ^ Contract to s •'"

goods — Suit for balance due. In a suit to reLi
balance due for articles supplied to defendai
account current between the parties, where ai'^_'
contract existed to the effect that, on defend^M
giving chittis as security, articles of food for i'y
consumption would be supplied to him from p
iff's shop, the chittis to be returned to deft;
at intervals after payment on presentation, '•
found that plaintiff last, on the 1st Assar T" ■ "

turned to defendant the unpaid chittis then on

nd,

but defendant did not pay their amount. >.^'
quentlv, on different dates, he paid a portion," «
suit for what remained due -.—Held, that the h»^^
of contract on which the suit was brought occr-''

{ 7177 )

DIGEST OF CASES.

( 7178 )

IMITATION" ACT (XV OF 1877)-
Schedule II — contd.

-contd.

-Art. lid— contd.

hen the defendant failed to pay, on presentation
■ the chittis, the amount then due and payable.

AM DOI'AL KOONDOO V. GOOROO D.SSS SeN

18 W. R. 450

0. . — Breach of contract

not satisfying decree — Cause of action. Where S
r a valuable consideration, promised K to satisfy
decree outstanding against him, and, instead of
rrying out his agreement, purchased the decree,
')lied for its execution, and brought K's property
jale, K's right of action accrued from the date of
,e application, not from the date of the sale. Maho-
SD Hadee v. Sheo Sevuk Doobay

6 W. W. 95

7. — Suit for trees on

\d after ejectment — Cause of action. A, having
en in possession of garden land from 1850 as ten-
't of B under a two years' lease, continued to oo-
py as yearly tenant till 1860, when he was ejected
a suit brought against him by B. In 1864 A
?d on a clause in the lease which he contended
re him a right to remove certain trees planted on
' land -.—Held, that the breach of contract, if any,
>k place when B took possession of the land to-
jlher with the trees in execution of his decree in
i|Ctment suit, and that .4's claim was barred by
tlO, 8. 1 of Act XIV of 1859. Sayaji v. Umaji
3 Bom. A. C. 27

j}. Suit on agreement

(■pay rent to creditor — Cause of action. Plaintiff
( 'cuted a zuri-i-peshgi lease to defendant for a
t,m of years, and arranged with him coiitempor-
ctously that he (the lessee) was to make an an-
liil payment (out of the rents payable to plaint-
i' to a creditor of the plaintiff, with a view to
cjir ofi a debt. These payments, though made
lactually for a time, were withheld while a balance
(Ithe debt still remained due, to recover which
t| creditor sued the lessor (plaintiff) and obtained
a'ecree: — Held, that plaintiff's (lessor's) cause of
»ion against the defendant (lessee) arose from
t; date of the latter's breach of contract, — i.e.,
k date on which he failed to pav. Zoolt
IiUM V. Ram Surtj^- Roy .m^. .felO.W. R.^J

^80

|. Suit for abatement

o\ent founded on agreement fot measurement — Pay-

"I** of same rent — Abandonment. In a suit for

& tement of rent founded on an agreement that

a . certain time the land should be measured, and

il 'und le-s than the quantity named in the agree-

njit, there should be an abatement of the rent, it

*| found that the plaintiff had never required

*|tement, but had continued to pay the rent six

y "s : — Held, that the suit was barred by limita-

. the cause of action having arisen when the

indar continued to take rent according to the

ntity of land named in the agreement. Semble :

Tjre might be ground for saying that the agree-

LIMITATION" ACT (XV OF 1877;— conld.

Schedule II — contd.
. Art. 115— contd.

ment was abandoned by the parties. Prosuxxo

MOYEE DOSSEE V. DOYA MOYEE Do.SSEE

22 W. R. 275

10.

Sale of goods on

credit — Breach of contract. Where there was a
clause in a partnership agreement by which the
defendants, the working partners, undertook to be
liable for any outstandings in respect of goods sold
on credit, the sale of goods on credit was held not to
be any breach of contract, and not to bring the suit
under el. 9 of s. 1 of Act XIV of 1S59. Kallee
Kristo Roy Chowdhry v. Haran Chunder Dey
19 W. R. 277

11.

Contract for ma-

nufactured indigo — Breach of contract. Certain
factories, already sown with indigo, were given in
lease by the Court of Wards ; and the lessees agreed
to take over all contracts and pay all expenses
which had been incurred for that season's cultiva-
tion, depositing the amount of outlay incurred.
The lease having been set aside by superior author-
ity, the lessees agreed to give up the factories and
all the indigo manufactured by them while in pos-
session, on condition of being repaid that amount
deposited by them. In a suit to recover the value
of the indigo not delivered •.—i:^e/f?, that the suit
was one for breach of contract and governed by
cl. 9, 3. 1, Act XIV of 1859. Bama Soondury
Debia v. Jardine, Skinner & Co. 9 W. R. 367

12.

Suit for breach of

contract to deliver goods. The defendants were
owners of a fleet of steamers plying periodically
along the coast of British India, by which they
undertook to convey for freight parcels of goods
indifferently from and to specified ports. In a suit
for compensation for value of goods short delivered :
— Held, that the suit was one for breach of contract
to deliver, and was governed by Art. 115 of the
Limitation Act, 1877. British Inoia Steam
Navigation Co. v. Mahomed Esack .t Co.

I. U R. 3 Mad. 107

23_ and s. 61 — Agent for purchase

of stores for Government, .^uit by — Cause of action —
Suit against Secretary of State— Acknotcledgment —
Act XV of 1S77, ss. 19 and 20. The plaintiff, a
purchasing agent, sued the Secretary of State for
India in Council to recover certain sums of money
alleged to be due to him for the purchase of stores,
etc." for the second Cabul Campaign. This suit
was brought more than three years after the termi-
nation of the plaintiff's agency and more than
three years after the last supply made by him as
purchasing agent, but within a few months after the
final refusal of the Commissariat Department to
pay him the amount claimed: — Held, that it was
doubtful if Art. 61 of the second Schedule of Limi-
tation Act would apply, as against the Secretary of
State for India in Council, but even if not, the suit

( 7179 )

DIGEST OF CASES.

( 7180 )

LIMITATION ACT (XV OF iSny-eonid.
Schedule 11— contd.

Art. 115 — contd.

was barred by Art. 115. Dova Narain Tewary v.
Secretary of State for India

I. L. R, 14 Gale. 256

14.

and Art. 120 — Etmarriage

of Hindu widow — Custom — Breach of contract.
— The plaintiff sued the defendant, who had
married the plaintiff's decesed brother's widow to
recover, by way of compensation, the money ex-
pended by his deceased brother's family on his
marriage, founding his claim upon a custom pre-
vailing among the Jats of Ajmere, whereby a mem-
ber of that community marrying a widow was
bound to recoup the expenses incurred by her
deceased husband's family on his marriage. Held,
that the suit was one of the character described in
Art. 115, Sch. II of Act XV of 1877, and not in Art.
120 of that Schedule, and the period of limitation
was therefore three and not six years. Madda v.
Shed Baksh . . I. L. R. 3 All. 385

15. and Art, 30 — Suit hy consignee

against railway company for non-delivery. Where a
suit is brought against a railway company by the
consignee of goods (not sent on sample or for ap-
proval) for compensation for non-delivery, the
period of limitation is not two years (Art. 30), but
three years (Art. 115, Sch. II of the Limitation Act,
1S77), inasmuch as the consignor contracts with
the company as agent for the consignes, and the
property in the goods passes to the consignee on
delivery to the company. Hassa Ji v. East Indian
Railway Company . , I. L. R. 5 Mad. 388

16. and Art. ZO—Bill of lading —

Contract, breach of, for delivery of goods — Onus of
qwoof of loss of goods. Where a plaintiff brings a
suit for breach of contract for non-delivery of goods
under a bill of lading, it is not open to the defend-
ant, after having denied receifjt of the goods, to
set up, or for the Court, ..fter finding that the goods
had been shipped, but not delivered, to assume,
without evidence, that the goods were lost, in order
to bring the case within Art. 30, Sch. II of the Limit-
ation Act of 1877. Per Garth, C.J.—SemUe :
Where a plaintiff sues for breach of contract and
proves his case, the three years ' limitation would be
applicable, although the defendants were to prove
-that the breach occurred m consequence of some
wrongful act of theirs, to which the shorter limita-
tion would apply. Mohansing Chawan v. Conder,
I. L. R. 7 Bom. 47 S, and British India Steam Navi-
gation Company v. Mahomed Esack, I. L. R. 3 Mad.
107, approved. Danmull v. British India
Steam Navigation Company

I. L. R. 12 Gale. 477

17.

LIMITATION ACT (XV OF 1871)— contd.

Schedule II — contd.
Art. 115— contd.

not in writing, registered, and not otherwise spe
cifically provided for. Kameshwar Maxdai, ?•
Ram Chand Roy . . I. L. R. 10 Calc. 103;

18. and Art. 57~Deht contracted t

he payable on a future date. In a suit against th
legal representative of a deceased debtor to recove
the amount of the debt it appeared that the deb
was contracted on 30th September 1885, and was t
be repayable a month after that date. Inasv!
brought on 24th October 1888 -.—Held, per Mutti
SAMi Ayyak and Parker, J J., that the period '.
limitation should be computed from the date whe
the debt was due, and the suit was not barrec
Such a suit is governed by Art. 115, and not by At
57 of the Limitation Act. Rameshrvar Mandal •
Ram Chand Roy, I. L. R. 10 Calc. 1033, iollos^ei
Ramasami v. Muttusami I. L. R. 15 Mad. 38

Loan on verbal

agreement to repay on a specified date. A suit to
recover money lent with interest upon a verbal
agreement that the loan should be repaid with
interest one year from the date of the loan, is
govemediby Art. 115^of Sch. II of Act XV of 1877,
which virtually provides for all contracts, which are

19.

- Stdt on contra

unregistered— Money due under unregistered cm
tract payable on demand — Money to be paid for part
cular purpose — Construction of agreement. Tl
plaintiffs were husband and wife, and they we
married on the 14th March 1888. On the day
their marriage the defendant, who was the father
the first plamtiff, gave him a note addressed
his (the defendant's) firm as follows: "Do you ,
pleased to pay R7,000, namely, seven thousand, fi
ornaments in respect thereof, together with interej
thereon, at the rate of R4, namely four, per one ce|
turn per one annum, within a period of 3, name);
three, years from this day." The first plaint
took this note to the defendant's firm, and in :
turn received the follo\Wng document addressed
himself : " You sent one chithi (note) for ft7,0(
namely seven thousand, on me. The sura whi
your father caused to be paid to you in respect
the ornaments appertaining to your marriage i
been credited to your account, bearing int^
at 4, namely four, per cent. For the same ;
' receipt ' has been given in writing,
money was actually paid by the defen-'.
to the plaintiffs, and none was lodged \nth
defendant's firm by the plaintiffs, but sm
quently to the above transaction an acc"
was kept in the defendant's books, in which
first plaintiff was dulv credited with mtei
every year. In March 1894, the first plain
demanded from the defendant the amount stand
to his credit out of his account. The defend
pleaded limitation -.—Held, that the purpose
which the money was to be paid, viz., the purcli
of ornaments for the wife, indicated that it was
intention of the parties that payment shoulo
be made until the plaintiffs were prepared to )
chase ornaments, and that until then the m^
should remain with the defendant's firm. '^
intention was that the money should not be p
until the plaintiffs required it for the purf^
for which it was destined, and demanded it. •

( 7181 )

DIGEST OF CASES.

( 7182 )

[MITATION ACT (XV OF 1817)— contd.

Schedule II — conid.
Art. 115— conid.

ntract was not broken until the plaintiffs de-
'mded the money, which they did in March 1894.
t. 115 of Sch. II of the Limitation Act (XV of
77) applied to the case ; and the suit was
t barred. Mancheeji Bomanji v. Nusserwanji
xcHEKJi . . I. Ij. R. 20 Bom. 8

iO. Breach of con-

t :t — Cause of action — Damages. In a suit for
1 ach of a contract to be performed at different
1 OS, the period of limitation must be calculated
i , each breach of contract as it arises. Where
1 re is a contract for performing certain duties in
< h of several years, each breach of the contract is
( >mplete cause of action, and daaiages are recov-
t ble for each breach separately. Mati Sahu v.

I iBES

J. L. R. Sup. Vol. 500 : 6 W. R., Act X, 61

ee the decision of the case by the Division Bench
a r the ruling of the Full Bench. Motee Sahoo
f ORBEs 6 W. R. 278

iti this clause see, also, Lukhinaeain Mitter
I' Lhettro Pal Sixg Roy

13 B. L. R. P. C. 146 : 20 W. R. 380

iL . — . Continuing breach

-Contract. A agreed with B to refund to N the
p'e of certain property sold by A to N, and of
wh a^ share belonged to B. A having died with-
01 fulfilling the agreement, N obtained against B
a 'cree for possession of part of the p'roperty.
F • years subsequent to N's suit, B\s heirs sued A 's
li< s for damages for breach of the agreement :—
H', that such breach of the agreement was a conti-
ni g breach, and had not even yet ceased, and that
tl) .fore the present suit was not barred by Art.

II Sch. II of the Limitation Act. Imdad 'Ali v.
iN'iBAT Ali . . . I. L. R. 6 All. 457

l^' • and s. 23 — Bond — Interest post

'**, -Non- payment of frrincipal and interest on

a^d date— Continuing breach — Successive breaches.

L'l 1 failure to pay the principal and interest secured

".y bond upon the day appointed for such pay-

'I . breach of the contract to pay is committed,

■'• is no '■ continuing breach " within the

nf s. 23 nor "successive breaches"

....iii meaning of Art. 115 of the Limitation

^.AV of 1877). Mansab Ali v. Gulab Chand

I. L. R. 10 AIL 85

LIMITATION ACT (XV OF 1877)— conW.
Schedule II — contd.

tral

' Breach of con-

fusal to perform contract of sale —Cause of
mii—Suitfor refund of money— Continuing breach.
A 10 was the uncle of the first defendant and the
'at|r of the second defendant, agreed with C to sell
'-eiiin land to him for consideration received, and

0 iuse the land, then standing in the name of a

01 party, to be registered in C's name. It was
|«ri?r agreed that, if T failed to convey and cause

n iiange of the revenue registrv, T should return
at urchase-money. C was put'in possession, but
^ lau the second defendant conveyed the land to

Art. llb—concld.

one M who rejected C .—Held, that the breach did
not occur prior to November 1890, and that the suit
was not barred. Chinnatambi Godxden- v. Chin-
nana GoiTODEN . . I. li. R, 19 Mad. 391

Art. lie—

See Account . I. L. R, 35 Calc. 298
See Civil Procedure Code, 1882. s. 1.'}.
9 C. W. N. 679
See Contract , I. L. R. 35 Calc. 683
See Dekkhan Agriculturists' Relief
Act, 1879, s. 72.

I. L. R. 9 Bom. 320
-See Limitation . 11 C. "W. N. 674
I. Ii. R. 34 Calc. 672
iSee Transfer of Property Act, 1S82, s.
41 . . . I. L. R. 30 All. 388
1. Contract or en-
gagement in writing. Where a writing signed by the
defendant Mas in these terms :" 5 (defendant)
holds R47o, wliich sum is the property of L ' (the
plaintiff)": — Held, that the document could not be
considered a written contract or engagement.
Lakshmanaiy'an v. Sivasamy Row . 4 Mad. 216

2. — — Contract or en-
gagement in writing — Suit on promissory note by
endorsee against payee. The defendant, the payee
of a promissorj^ note, endorsed it to the plaintiff.
The endorsement \\a.&, " Pay to A' M (plaintiff) or
his order." The promissory note had been regis-
tered previous to the endorsement to plaintiff. A
suit was brought by the plaintiff three years after
the date of the endorsement to recover the amount
of the note from the defendant -.—Held, that the
suit was barred by the law of limitation. Kyla-
sanada Moodelly v. Armugum Moodelly

4 Mad. 366

See Shumbo Chunder Shaha v. Baroda Soox-
duree Debia . . : ,. . . 5 W. R. 45

3 ; Mode of registra-
tion— Registration before cazee. The registration
must be under one of the Registration Acts or Regu-
lations. Attestation befoiv a cazee was held not to
be registration within cl. 10, s. 1 of Act XIV of 1859.

DOYAMOYEE DaBEE V. NOBONEE DaBEE

1 W. R. 89

4. — Registered bond.

Held, that Art. 116, Sch. II of Act XV of 1877, is
applicable to a suit on a registered bond for the
payment of money. Husain Ali Khan r. Hafiz
Ali Khan . . . I. L. R. 3 All. 600

5. Registered instal-
ment bond, suit on — Contract in writing registered.
Art. 116 of the Limitation Act is apphcable to a suit
on a registered instalment bond, notwithstanding
the express provisions of Art. 74. That Article (116)
is intended to apply to all contracts in writing
registered, whether there is or is not an express

( 7183 )

DIGEST OF CASES.

7184 J

LIMITATION ACT (XV OP 1877)— confd.
Schedule 11— contd.

Art. 116— conid.

provision in the Limitation Act for similar con-
tracts not registered. Din Doyal Singh v. Gopal
Sarun Nakain Singh . L. R. 18 Cale. 506

LIMITATION ACT (XV OF 1877)-

Sehedule II — contd.
Art. 116— contd.

6. Registered bond —

Compensation for breach of contract. A suit to re-
cover a specific sum of money due upon a registered
bond or other written contract is a suit for compen-
sation for breach of contract in writing registered,
within the meaning of Art. 116 of Sch. II of Act
XV of 1877, and may be brought within six years
from the time when the period of hmitation would
begin to run against a suit brought on a similar
contract which is not registered. Ganesh Krish-
na V. Madhavrao Ravji . I. L. E. 6 Bom. 75

7. - — ' Registered bond

for the payment of money — Suit for compensation for
the breach of a contract in writing registered. The
defendant, having borrowed money from the plaint-
iff, gave him a bond, dated 4th July 1872, for the
payment of such monej', with interest, within two
years, or on certain contingencies contemplated and
defined in such bond. Such bond did not specify a
day for payment. It was duly registered. On the
30th June 1880, the plaintiff sued the defendant,
stating in his plaint that he had lent the defendant
such monej' ; that it was payable on the 4th July
1874 ; that on that day he had demanded pay-
ment ; that the cause of action arose on that
day, as the defendant did not pay ; and that he
claimed such money accordingly. The plaint did
not make any mention of such bond : — Held, that
the suit was not one which fell within the scope of
Art. 66 of Sch. II of Act XV of 1877, but one to
which Art. 116 of that Schedule was applicable, and
it might proceed on the plaint without any amend-
ment thereof. Gatjri Shankar v. Surjtt

I, L. K. 3 AIL 276

Suit to recover

money due on registered bond — Cotnpensafion for
breach of contract. A suit to recover money due
upon a registered bond is a suit for compensation for
breach of contract in writing registered within the
meaning of Art. 116 of Sch. II to Act XV of 1877,
and must be brought within six years from the time
when the period of limitation would begin to run
against a suit brought on a similar contract not
registered. Nobocoomar Mookhopadhaya v.
SiRU MuLLiCK . . . I. L. R, 6 Calc. 94
Registered bond

for the payment of money. Held, following Husain
Alt Khan v. Haflz Ali Khan, I. L. R. 3 All. 600,
that a suit on a registered bond for the payment of
monej', which has not been paid on the due date,
is a suit for compensation for the breach of a con-
tract in writing registered, and therefore the hmita-
tion apphcable to such a suit is that provided by
Art. 116, Sch. II of the Limitation Act. The prin-
ciple on which the ruling that a suit on a bond which
has not been paid on the due date is a suit for com-
pensation explained by Stuart, C.J., and Nobo-

coomar llookhopadhaya v. Siru Mullick, I. L. R.
Calc. 94, referred to. Khttnni v. Nasir-ud-i
Ahmad . . . . I. L. R. 4 All. 2;.

10. Suit for moil

due on registered bond. A suit to recover money d;
upon a registered bond is a suit for compensatii
for breach of contract within the meaning of A
116, Sch. II of Act XV of 1877. Nobo Coonr
Mookopadhaya v. Siru Mullick, I. L. R. 6 Calc. 9:
6 C. L. R. 579. See Gauri Sunkar v. Surju, I. .
R. 3 All. 276 ; Ganesh Krishna v. Madhavrav, 1 .
R. 6 Bom. 75 ; Vythilinga Pillai v. Thetchanamvi
Pillai, I. L. R. 3 Had. 76. ELalut Ram v. Lii.
Dhanukdhari Sahai , . 11 C. L. R. £l

11. Registered bd

executed by minor. A sum of money was ad van d
by the plaintiff to a minor who gave a bond for e
amount and duly registered the same. In a sui<Q
the bond it was urged on behalf of the minor, \o
had not attained majority at the time the suit -.8
filed, that he was not liable under the bond, and 'it
the fact of its being registered could not help le
plaintiff, and consequently the suit was barj:ed)y
limitation, being brought more than three yrs
after the advance was made: — Held, that in SU' a
case the bond could not be ignored and treatens
non-existent, being the basis of the suit, and tt,
on its being proved to have been executed byQe
minor in respect of money advanced for necessaJS,
effect must be given to the fact of registra n,
and the suit having been brought within six j.rs
from the date of the bond was not barred by lina-
tion, and the plaintiff was entitled to a dei'e-
Sham Charan M.AL V. Chowdhry Debya SliH
Pahraj . . . I. L. R. 21 Calc. 7a

12. Suit on a i|w-

tered bond, and for misappropriation by execviiit
son tort. In a suit on a registered bond pay^abin
eleven yearly instalments to recover instalmepS
to 10 from the representatives of two decease""-
debtors (who as managing members of an undi
Hindu family had contracted the debt for :
purposes), the plaintiff added as defendants '
son-in-law of one of the deceased co-debtors, ai ^i
two brothers, on the ground that they, in coll ion
with the widow of such deceased co-debtor, hi »s
volunteers intermeddled with and possessed i'Di*
selves of substantially the whole property v^^^
family of the decea.sed co-debtor. The bon(''*'as
dated 26th March 1870. The earliest insta ent
sued for fell due on 13th March 1874 .—HM,^%
as the bond was a registered bond and the prc-rtj
had been misappropriated within three years cte
date of the suit, the suit was not barred by 1 i**-
tion. Magaluri Gurudiah v. NaraYana ,™;
giah . . . LL. R. 3Mac359

13. Suit to i'W

arrears of rent on registered contract — Compe.n'*o^
— Contract Act, s. 73. A suit to recover arres of
rent upon a registered contract is governed bArt.

( 7185

DIGEST OF CASES.

( 7186 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule 11— contd.

Art. 116— contd.

16, Sell. II, Act XV of 1877. Compensation is
tsed in the same sense in that article as is the Con-
ract Act, s. 73. Vythilinga Pillai v. Thetchana-
tTETi PiiXAi . I. L. R. 3 Mad. 76

14.

and Art. 113— Suit by niort-

ngor to recover money due on a registered mortgage-
e(d. A Suit by a mortgagor to recover money
ue en a registered mortgage-deed, together with
images for non-payment, is not a suit to which
> period of limitation prescribed by the Limit-
tion Act (XV of 1877), Sch. II, Art. 113 (for
Decific performance of a contract) is applicable,
he period of limitation applicable to such a
iut is that prescribed by Art. 116 of Sch. Il of
le said Act (for compensation for the breach
;! a contract in writing registered) ; and the time
,om which limitation will run against the mort-
igor is, in the absence of any specific provision
) the contiary, the date of the execution ot the
,ortgage-deed. Gauri Shankar v. Surju, I. L.
\. 3 All. 276 ; Rusuin Ali Khan v. Hafiz Ali Kfian,
L. R. 3 All. 600 ; Nobocoomar Mookhopadhaya
, Siru Midlick, I. L. R. 6 Calc. 94 ; Vithilinga
,illai V. Thetchnanmrti Pillai, I. L. R. 3 Mad. 76 ;
.id Ganesh Krishna v. Madhavrav Ravji, I. L. R.
I Bom. 75, referred to. Naubat Sixgh v. Ixdar
i-NGH . . . . I. L. R. 13 All. 200

15. . and Art. 65 — Vendor and pur-

Jaser — Agreement by purchaser to refund pur-
^ase-money in case land sold proved deficient in quan-
V — Suit for refund — Suit for compensation for breach
' contract. The vendor of certain land agreed
j the conveyance, which was registered that
case the land actually conveyed proved to be less
lin that purporting to be conveyed, he should
jike a refund to the purchaser of the purchase-
jiney in proportion to the value of the quantity of
iid deficient. The land actually conveyed having
j3ved to be less than that purporting to be con-
lyed, and the vendor having failed to make a re-
|id of the purchase-money in proportion to the
lueof the quantity of land deficient, the purchaser
I'd the vendor for the value of the quantity of
i\-d deficient -.—Held, by Spankie, J., that the suit
•js one of the natu:e described in Art. 6.5, Sch. II
I Act XV of 1877, to which, the agreement being
• writing registered, the limitation provided by Art.
^), Sch. II of that Act, was applicable. Held by
'BFIKLD, J., That Art. 116, Sch. II of Act XV o'f
:'i, was applicaijle to the suit. Kishex Lai. v.
•I'^'LOCK . . . I. L. R. 3 All. 712

r*' Suit for breach of

yrnct m writing regi.^tered— Stipulation as to
tjOHTU of profits of property sold. The plaintiffs
rchased certain immoveable property from the
lendants by a registered sale-deed on the 20th
MJune 1888. It was stipulated in the sale-deed
? l^\ profits of the property should be below
*'X>. the vendors would make good the deficiency.

LIMITATION ACT (XV OF 1817)— contd.
Schedule II — contd.

Art. lie— contd.

The vendees sued upon this contract on the I9th of
September 1802, alleging that the profits amounted
to only R 177- 1-0 ■.—Held, that the suit as regards
limitation was governed by Art. 116 of the second
Schedule of Act XV of 1877, and not by Art. 65.
Kishan Lai v. Kinlock, I. L. R. 3 All. 712, referred
to. Amanat Bibi v. Ajtjdhia

I. li. R. 18 All. 160

1 '• Suit for arrears of

maintenance — Suit on ekrar executed by priest of
Hindu idol creating charge on offerings to idol —
Right of priest to charao (offerings to idol). In a suit
upon an ekrar executed by the priest of an idol for
recovery of arrears of maintenance, and for a de-
claration that the money due was realizable from
the surplus of the charao (offerings to the idol) and
recoverable from the defendant's successors in
office : — Held, that the limitation applicable to the
case was that prescribed by Art. 116, Sch. II of the
Limitation Act (XV of 1877). Arts. 128 and 129 do
not govern the case, as they relate to cases in which
the right of maintenance is based on the Hindii law.
Nobocoomar Mookhopadhaya v. Siru Mullick, I. L.
R. 6 Calc. 94, referred to. Girijanund Datta
Jha v. Sailajanund Datta Jha

I. li. R. 23 Calc. 645

18.

Suit for rent —

Registered contract signed by lessee only. In a suit for
rent accrued due more than three years before the
date of the plaint, it appeared that the contract
between the landlord and tenant was comprised
in a registered document which was signed only by
the latter : — Held, that the suit was not barred by
limitation. Ambalavaxa Paxdaram v. VAGrRA>r
I. L. R. 19 Mad. 52

19.

Covennni implied

in. registered sale-deed — Transfer of Property Act (IV
of 1S82), s. 55 — Implied covenant for title — Suit for
damages for breach. On 8th February 1889 the
defendant sold to the plaintiff, under a registered
conveyance containing no express covenant for
title, land of which he was not in possession, and the
purchase-money was paid. The plaintiff and the
defendant sued to recover possession, but failed on
the ground that the vendor had no title. The
IDlaintiS now sued on 7th February 1895 to recover
with interest the purchase-money and the amount of
costs incurred by him in the previous Utigation : —
Held, that, the contract of sale being in wniting and
registered, the covenant which, under s. 55 of the
Transfer of Property Act, the law implied, must be
regarded as part of the registered wxiting, and
therefore the suit was not barred by limitation, but
the plaintiff was entitled to the relief sought by him.

KkISHXAX NAlfBIAR V. KaXXAX

I. L. R. 21 Mad. 8
20 and Art. 120— Tr«n.s/er of Pro-
perty Act (I V of 1SS2), s. 66 — iiuit for mortgage mon-ey
by mortgagee on disturbance of passession. The

( 7187 )

DIGEST OF CASES.

( 7188 )

XIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 116— contd.

4efendants demised certain land to the plaintiff
under a registered kanom deed in 1888. Theplaint-
ifi was evicted in February 1893. He now sued
in 1896 to recover the amount of the kanom : —
Held, that the period of limitation applicable to the
suit was six years and the suit was not barred by
limitation. Unichaman v. Ahmed Kittti Kayi
I. L. R. 21 Mad. 242

21. and Arts. 89 and 90—

Principal and agent — Breach of contract — Account —
Registered agreement — Contract Act, s. 73 — Com-
pensation. A suit to recover from he representa-
tives of a deceased agent certain sums of money
which had been received by such agent in the course
of his dvities and misappropriated by him, will be
governed by the limitation prescribed by Art. 116,
Sch. II, Act XV of 1877, when the contract under
which the agent was employed is contained in a duly
reo-istered instrument. In a suit for compensation
for breach of a contract in writing and registered,
whether such compensation be for a liquidated or
unliquidated sum, the limitation applicable is six
years as prescribed by Art. 116, Sch. II, Act XV of
1877. In Art. 116, Sch. II of Act XV of 1877, he
-word ' ' compensation ' ' seems to be used in the
sense in which it appears in s. 73 of the Contract
Act {IX of 1872). In April 1875, A entered into an
agreement in writing with B, whereby he agreed to
act as the manager of 5's zamindaris and other
landed properties for three years, on certain terms
therein mentioned. The agreement was duly r >
gi-itered. On the 15th of June 1882, B sued the Ad-
ministrator-General of Bengal, as administrator of
J's estate to recover certain sums of money, set
forth in detail in the plaint, as having been received
bv A, and not accounted for, stat ng that they had
been misappropriated by A -.—Held, that in respect
of such sums as were received by ^, in virtue of his
position as manager under the registered agreement,
the hmitation of six years apphed ; but that in res-
pect of the suras received by him in the course of
transactions which did not come within the scope
of the registered agreement, the limitation of three
years applied. Harendra Kishore Singh v.
Administrator-General of Bengal

I. L. E. 12 Calc. 357

22. ■ '5«''< fo'T arrears

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art 116— contd.

of rent — Registered contract. A suit to recover ar-
rears of rent upon a registered contract is governed
by Sch. II, Art. 116, of the Limitation Act. Umesh
Chunder Mundul v. Adarmoni Dasi

I. L. R. 15 Calc. 221

23. — Suit on bond. A

sued as assignee of bond (payable in 1872), hypo-
thecating land in the mof ussil. B, A's assignor, was
a vakil practising in the High Court. B had ob-
tained an assignment of the obligee's interest in the
bond sued on, and also another bond for R3,000
between the same parties after the 1st July 1882,

for R4,500. B had pre\nously purchased the twi
bonds at a sale in execution of the decree of a mof us
sil Court for R5 each. J's assignment from j
purported to be made to A in payment of certai
debts owed to him by B. No interest had bee
paid on the bond, and no tender had been made t
the plaintiff : — Held, in a suit brought is 1884, tha
the creditor's personal remedy was barred by Art
116 of the Limitation Act. Kathnasami v. SuBRi
manya . . . I. L. R. 11 Mad. 5<i

24. Damages forno/

payment on due date — Charge on hypothecated pn
perty — Successive or continuing breaches of contrac
Damages given after the due date of a mortgage f(
non-payment of the principal money upon the du
date, are damages for breach of contract, and nc
interest payable in performance of a contract
and under Art. 116, Sch. II of the Limitation A<
(XV of 1877), a suit to recover such damages mu;
be brought within six years from the time when tV
contract for the breach of which they are claime
was broken. It cannot be said that such damag«
are, from the date when the contract was broke:
and even before they have been ascertained or d
creed, a charge upon the property hypothecated, ;
as to make Art. 116 inapplicable. Price v. Grc
Western Railway Co., 16 L. J. Exch. 87 ; Morg(
V. Jones, 22 L. J. Exch. 232 ; Cordillo v. Wegiidt
I. L. R. 5 Ch. D. 287 ; In re Kerr's Policy, L.
S Eq. 331 ; Lippard v. Ricketts, I. L. R. 14 t
291 ; Cook v. Fowler, L. R. 7 E. dk I. Ap. 2
and Bishen Dyal v. Udit Narayan, I. L. R. S A
486, distinguished. In such cases there iso
breach of the contract, namely, the non-payme
on the date agreed upon, and there is no questi
of continuing or successive breaches. Mansah .
v. Gulab Chand, I. L. R. 10 All. 85, referred ;
Bhagwant Singh v. Daryai) Singh

I. L.R.11A11.4,

25. Interest on di\

of conditional sale — Interest after date fixed for pel

ment of principal and interest — Absence of agr

ment to pay such interest — Compensation for bra^

of contract. Where there is no stipulation in a df •

of conditional sale to pay interest after the d'

fixed for the repayment of principal and interest

claim for interest after due date is a claim for cr

pensation for breach of contract and a suit for

recovery of such compensation must be bron

within six years from the date of the breach. J

gomohun Ghose v. Manick Chand, 7 Moo. L

279, referred to. Mansab Ali v. Gulab Cluind,!

R. 10 All. 85, and Bhugioant Singh v. DarP

Singh, I. L. R. 11 All. 416, approved of. Bh\-

ivan Lai v. Mohip Narain Singh, unreported, sp

Golam Abas v. Mohamed Ja/ffer, I. L. R. 19 Cf-

23 note, followed. Gudri Koer v. BhubansewM

CooMAR Singh . . I. L. B. 19 ^al^-r

Golam Abas v. Mahomed Jaffer

I. li. R. 19Calc.23ne

( 7189 )

DIGEST OF CASES.

( 7\90 )

IMITATION ACT (XV OF 1811)— cmtd.
Schedule II— contd.

Art. 116— contd.

26. - — Mortgage by

uilitional sale — Interest after due date — hiterest Act
XXII of 1S39)— Limitation Act, Art. 132—
iinsfer of Property Act, s. S6. Held, by a majority
the Full Bench (Maclean, C.J., O'Kinealy, J.,
il Macpherson, J.), that, when a mortgage-bond
ntains no stipulation for the payment of interest
:er the due date, interest is payable by virtue of
e Interest Act (XXXII of 1839). Art. 116 of
.h. II to the Limitation Act prescribes the period
■ mitation in such a case ; and therefore only six
jars' interest after the due date at 6 per cent, per
nam is recoverable. The mortgagor cannot
leem until he has repaid the principal sum with
iMi interest and casts. Gudri Koer v. Bhtthaw^s-
■.ri Coomar Singh, I. L. R. 19 Calc. 19, approved.
. dhura Das v. Naraindar Bahadur Pal, I. L. R.
.AU. 39 : L. R. 23 I. A. 13S ; Cook v. Fowler, L.
. 7 H. L. 27 ; and Bikramjit Tewari v. Durga
. <il Tewari, I. L. R. 21 Calc. 274, referred to.
./</ (by Trevelyax and Baxerjee, J J.), that the
i eiest after due date should be regarded as interest
(,-• on the mortgage within the meaning of s. 86
(the Transfer of Property Act (IV of 1882) ; and
t,it being so, that it becomes a charge on the
1 rtgaged property, and the period of limitation
£,>licable to the claim for such interest is twelve
}',;rs under Art. 132 of Sch. II to the Limitation
-> (XV of 1877). MoTi Singh v. Ramohari
«;oH . . . . I, L. R. 24 Calc. 699
1 C. W. N. 437

J7.

Suit on mortgage

-^him for interest post diem in absence of covenant-
C\im in nature of damages. The defendants hypo-
tjcated to the plaintiff, to secure repayment of a
M, their interest in certain lands. The hypothe-
c'ion-deed was executed in 1875 and registered,
a;; it contained the following terms with regard to
ir-rest and the repayment of the debt:" We (the
Ojgors) shall pay interest at 7 per cent, per an-
niQ before the 30'th October of each year ; we shall
p ■ in full the principal amount on the 30th October
li8, after clearing off the interest, and redeem this
djl; should we fail to pay the interest regularly
abrding to the instalments, we shall at once pay
tl|principal together with the amount of interest."
liault was made in the payment of interest in
16. The plaintiff in 1888 sued the executants of
tl' above instrument and their heirs and repre-
Btiatives to recover the principal together with
iiirest up to date. The Court of first in.stance
h' I that the claim for a personal decree was barred
b.iimitation, but passed a decree directing the sale
olibe hypothecated land in default of payment of
tr principal together with interest up to date.
Uippeal:— Z^eW, that, since the instrument did
n<jprovide for interest post diem, any claim in the
O'lire of a claim for such interest could be allowed
•^^yay of damages only, and was not a charge on
.itjiand ; and treating the claim as one for damages

LIMITATION" ACT (XV OF IQll) -contd-.

Schedtile 11— contd.
Art. 116— coald.

for failure to pay the principal on the 30th October
1878, such claim was barred by limitation under Art.
116, Sch. II of the Limitation Act. Badi Bibi
Sahibal v. Sami P1LL.AI . I. L. R. 18 Mad. 257
But see Rama Reddi v. Appaji Reddi

I. li. R. 18 Mad. 248
where interest post diem was allowed, though barred.

28.

Suit for interest

post diem in absence of covenant — Suit on mortgage.
The plaintiff sued in 1893 to recover principal to-
gether with interest due up to date on a mortgage
which provided for the repayment of principal and
interest in December 1882, but contained no cove-
nant for the payment of interest post diem : — Held,
that the claim for interest post diem \\as barred by
limitation. Thayap. Ammal v. Lakshmi Ammal
I. L. R. 18 Mad, 331

29.

Claim for in-

terest on moneij due under regidered mortgage-deed-
Interest Act (XXXII of 18-39). Art. 116 of Sch. II
of Act XV of 1877 applies to a claim to have in-
terest allowed under Act XXXII of 1839, in res-
pect of the non-payment on the due date of the
money due under a registered mortgage-deed, if the
suit is not brought ^\•ithin six years of the breach of
contract. Narindea Bahadur Pal v. Khadim
HusAiN . . . . I. L. R. 17 All. 581
But see Mathura Das v. Narixdar Bahadup.
I. L. R. 19 All. 39
L. R. 23 I. A. 138
1 C. W. W. 52
in which this decision Avas not apiwoved of by the
Privy Council.

30.

Building lease-

Coal depot, iK'Jst jot; not agricultural or horticultural
lease— Bengal Tenancy Act {VIII of ISSo), Sch. Ill,
Art. 2. A registered lease granted for building
purposes and for establishing a coal depot does not
come within the purview of the Bengal Tenancy
Act, not being a lease for agricultural or horticul-
tural purposes. The limitation applicable to a suit
for the rent reserved in such a lease is that pre-
scribed by Art. 116 of the Limitation Act, and not
that provided by Sch. Ill, Art. 2, of the Bengal
Tenancy Act. Ranigaxj Coal Association" v.
Judoonath Ghose . I. Ij. R. 19 Calc. 489
3L ■ Suit between part-
ners— Registered partnership deed. The plaintiffs
and the defendants entered into a partnership
agreement, which w<i3 registered, whereby, it was,
among other things, provided expressly that each
partner should bear the loss, if any, incurred in the
business in proportion to his share. The plaintiffs
alleging that loss had been incurred and borne by
them, sued to recover the defendant's share of the
loss : — Held, that, since the partnership agreement
was registered, the suit was governed by Limita-

( 7191 )

DIGEST OF CASES.

( 7192 )

LIMITATION ACT (XV OF 1877)— cowii.
Schedule 11— co7itd.

Art. 116— contd.

tion Act, Sch. II, Art. 116. Ranga Reddi v.
Chinxa Reddi . . I. L, R. 14 Mad. 465

32. _ and s. 106 — Suit for an account

of a dissolved partnership — Registered partnership
deed. A suit for an account of a partnership dis-
solved more than three years before the filing of the
plaint is barred by limitation, even if the instru-
ment of partnership was registered. Art. llfi not
being applicable to such a suit. Vairavan Asari
V. Ponnayya . . I. li. E. 22 Mad. 14

No contract as to

payment of purchase-money. Where, on a sale of
land, there Mas no contract in writing between the
vendor and purchaser as to the payment of the pur-
chase-money, but only a registered sale-deed, ^^ hich
recited that the price had been paid : — Held, that
Ai-t. 116 did not apply. Avuthala v. Day'umma
(1900) .... I. L. R. 24 Mad. 233

34. " Contract in

writing registered'' signed by one party thereto—
Plaint — Sufficient disclosure of cause of action.
During the course of certain litigation in nhich B
was suing ^ on a promissory note, a compromise
was arrived at, under which A undertook to execute
a mortgage in favour of B, and, in consideration
thereof, B undertook to withdraw an appeal which
was pending at the time. The mortgage was exe-
cuted, and the undertaking to withdraw the appeal
was embodied in the mortgage deed, which was
registered, but signed only by A. B, in breach of his
undertaking, permitted the appeal to proceed, and
obtained a decree on .20th November, 1891, which
he subsequently executed against A, recovering the
value of the promissory note upon which he had
originally sued. He also retained the mortaage
which had been executed in the compromiser A
now sued to recover from B the amount which B
had collected under the decree, stating the cause of
action as having arisen on the date of that collection,
namely, 29th October, 1893, when it was contended
that the suit was not maintainable inasmuch cts the
decree had not been set aside, and that, even if
treated as a suit for damages for breach cf the under-
taking to vithdiaw the appeal it was barred, as
the date of the breach was the date of the decree
(viz., 20th November, 1891) which had been wrong-
ly obtained, and this suit had not been brought
■n-ithin three years from that date, the plaint having
been filed on 14th September, 1896 :— ^eZc^,
that, inasmuch as all necessary allegations were
made in the plaint, the contract and its breach
being alleged, and as the defendant understood
what the claim against him was, the plaint suffi-
ciently disclosed a cause of action for damages for
the breach of contract. Held, also, that the under-
taking in the mortgage was ' ' an agreement in
writing registered," witbin the meaning of Art. 116
of Sch. II to the Limitation Act, and that conse-
quently the claim was not barred. The fact that
the instrument was not signed by B did not take

LIMITATION ACT (XV OF lQn)-^ontd

Schedule 11— contd.
_ Art. IIQ- contd.

the case out of the operation of that article. Kc
appa v. Vallur Zamindar (1901)

I. L. R. 25 Mad, I

35. Receipt for mon

containing terms of sale signed by vendor and not
purchaser — " Contract in writing registered." T
mere recital, in a sale-deed, that the considerati
has been paid, is not a " contract in MTiting "
pay the consideration, within the meaning of A
116 of the second Schedule to the Limitation A'^
and, where a sale-deed contains the contract of s
which has preceded the actual sale. Art. 116 m
apply even though the sale-deed contains an i
knowledgment that the consideration has been pa,
when in fact it has not been paid. Avuthala .
Dayumma, I. L. R. 24 Mad. 233, followed. Si-
ble : That a document executed and given by a vr-
dor of property to his purchaser, and register.,
acknowledging payment of a sum of money on -
count of the purchase jmce, and providing that n
balance should be paid within a cetain date, i;i
" contract in Mriting registered," M-ithin the me;-
ing of Art. 116 of the second Schedule of the Limi-
tion Act, though it be not signed by the purcha.' -
Kotappa V. Vallur Zemindar, I. L. R. 25 M.
50, and Amhalavana Pandaram v. Va</uran, I. L.
19 Mad. 52, approved. Seshach'ala Naice?
V. Varada Chariar (1901) I. L. E. 25 Mad. 5

36. Breach of c-

tract in writing registered — Lease of villages— Faiie
by lessee to put lessor in possession — Executory ex-
tract to deliver such possession as the nature of 4
property admits. By a registered docum(;,
dated 11th November, 1893, defendant leased (■■
tain villages to plaintiff for a term of seven years .d
eight months. On 5th December, 1893, plaiiff
applied to be put into possession of the villages, .;t
never obtained possession. On 11th Novemir
1899, plaintiff brought this suit for possession, 4
in the alternative for the damages which he ^
sustained by the failure on the part of defemi
to put him into possession. On the plea of lir
tion being set up :— Held, that the claim for (i:>
ges was not barred, it being governed by Art.

of Sch. II to the Limitation Act. Both in the '
of a sale and of a lease, the registered instrumeii
which such sale or lease is effected not only op<'i
as a grant, but, in the absence of a contract to
contrary, is also construed and operates at ^
executory contract to deliver to the vendee orle^
such possession of the property as its nature perD|s;
and the breach of such an obligation *
breach of a contract in writing registered, wm
the meaning of the article referred to. Za.miN'B

OF ViZIANAGRAM V. BeHARA SURYA-NABAY; A

Patrulu (1901) . . I. Ii. R. 25 Mad, '7

37. . Mortgage— ■■

sonal Covenant — Registered mortgage bond — Su}
mental decree — Transfer of Property Act (IV of P
s. 90— Limitation Act (XV of 1877), Sch. II, ••' ■

( 7193 )

DIGEST OF CASES.

( 7194 )

^IMITATION ACT (XV OF 1817)— conld.

Schedule 11— contd.
' Art. 116— contd.

16, 178. Art. 178, Sch. II, of the Limitation Act
limited to applications under the Code of Civil
rncedure. It does not apply to an appHcation by
mortgagee for a supplemental decree under s. 90

the Transfer of Property Act. Where a regis-
red mortgage contains a covenant to pay the
ortgage money, the mortgagee would have under
rt. 116, Sch. II of the Limitation Act, six years to
•ing his suit on the covenant ; and the question of
aitation on an application for a supplemental

rec under s. 90 of the Transfer of Property Act

whether the personal remedy \^as barred at the
ite of the institution of the suit, and not whether

would be barred at the date of the application.
lack Singh X. Parsotein Proshad, I. L. R. 22 Calc.
4 ; Bai Manekbai v. Manekji Kavasji, I. L. R. 7
|)m. 213, and Puma Chandra Mondal v. Radha
2th Das, I. L. R. 33 Calc. S'i7, approved. Rah-
iT Kakim v. Abdul Karim (1907)

I. L. R. 34 Calc. 672
A .^uit to recover

38.

•mages for breach of covenants contained in a

. se, the terms of which were embodied in a regis-
led pott I h executed by the le■^^o^ only is governed

K Art. IK) of Sch. II of the Limitation Act. Amba-

t ana V. Vaguran. I. L. R. 19 Mad. -52 ; Kottappa v.
>llurZamindar,l.L.R. 2) Mad.50 ; Zamindar of
".ianagram v. Behara Suryanarayana, I. L. R. 25

■ id. 5ti7, rehed on. Apaji v. Nilkantha, 3 Bom.

iR. 667, dissented from. Girish Chandra Das

tlKujfJO Behari Malo (1908)

I. L. R. 35 Calc. 683
S.C. 12 C. W. K". 628

>y- A suit for re-

<,ery of royalty upon a registered document is
Siemed by Art. 116 and not Art. 110 of Sch. II
(|the Limitation Act. Raniganj Coal Association
Vjadu Nath Ghose, 1. L. R. 9 Calc. 44'!, followed.
liOLA Nath Das v. Ddega Prosad Singh (1908)
12 C. W. N. 724

.jtO- Limitation —

•\rigage — Suit for the breach of a contract in
il'in^r registered. A registered mortgage bond
Ijvided that the amount secured by it should be
Id by mstalments, and that in case of default the
r rtgagee would be entitled to take possession ;
I iher, that should there be any loss in the reco-
' y of the amount due or in dehvery of posses-
8. 1 of the mortgaged land, the mortgagee would
Ks, power to realise the amount secured by the
t!id with interest at 1 per cent, from the date of
tj cause of action till repayment, either from the
P '°° or from the property, moveable or immo-
' ble, of the debtor, or from the property mort-
8jed. Held, that a suit based upon the foregoing
C'snant to recover the mortgaged money upon
»« ire of the mortgagor to pay instalments was in
sijstance a suit for compensation for breach of
C'liract, to which the Limitation prescribed by Art.
*| of *he second Schedule to the Limitation Act

LIMITATION ACT (XV OF 1877)— ccm<<7.

Schedule 11— contd.
Art. llQ—concld.

(XV of 1877) appUed. Husain Ali Khan v. Hafiz
Ali Khan, I. L. R. 3 All. HOG, referred to. Col-
lector OF MiEZAPUE V. Da wax Singh (1908)

I. L. R. 30 AIL 400

41.

Limitation — Sale

— Suit for compensation for the breach of a con-
tract in writing registered. A deed of sale of im-
moveable property, duly registered, contained a
covenant to the effect that in the event of a claim
being advanced by a co-sharer, or in the event of
the purchaser losing any part of the property in
any other way, he would be entitled to a refund of
the consideration and to damages. The purchaser
failing to get possession of part of the property
purchased, sued for possession, or in the alternative
for a refund of a proportionate part of the con-
sideration money and damages : — Held, that as re-
gards the latter relief the suit was governed by
Art. 116, and not by Art. 97 of the second Schedule
to tne Indian Limitation Act, 1877. Mrx Kunwar
f. Chattar Singh (1908) . I. L. R. 30 All. 402

Art. 118—

See ante, s. 3 and Sen. II, Art. 118.

See post. Arts. 119, 141, and 144.

See Hindu Law — Alienation.

9 C. W. N. 636

1. Adoption — Rever-
sioner— Limitation Act {XV of 1S77), Sch. II,
Arts, lis and 141 — Suit by a reversioner for pos-
session of immoveable property. A suit by a Hindu
reversioner to recover possession of immoveable
property after the death of a childless widow is
barred by Art. 118 of Sch. II to the Limitation Act
(XV of 1877), if the claim to such possession cannot
be estabhshed without setting aside the defendant's
adoption, of which the plaintiff had become aware
more than six j^ears before suit. Raiji Khoda, a
Hindu, died in 1869, leaving behind him a childless
widow. In 1884 plaintiffs apphed for a certificate
of heirship to the deceased 's estate, under Bombay
Regulation VIII of 1827. The widow opposed the
application, alleging that the deceased had adopted
a son (defendant No. 1) in 1863-64. The certificate
was refused, and both parties were referred to a
suit for the purpose of determining the question
of the alleged adoption. But neither party filed a
suit. In 1897 the Andow died, and thereupon
plaintiffs, as reversionary heirs, .sued to recover
possession of the deceased Raiji 's propertj". The
defendant pleaded that he was the adopted son of
Raiji, and that the suit was barred by limitation.
Both the lower Courts held that the adoption was
not proved, and that the suit was not time-barred :
Held, on second appeal, that, though the defend-
ant's adoption was not proved, yet, as he had all
along asserted his adoption to the knowledge of
the plaintiffs since 1884, plaintiff 's suit was barred

( 7195 )

DIGEST OF CASKS.

( 7196 )

LIMITATION" ACT (XV OF 1877)-
Schedule II — could.

Art. 118— contd.

by Art. 118 of Sch. II to the Limitation Act (XV

of 1877). Barot Nakan v. Barot Jesang (1900)

I. L. R. 25 Bom. 26

2. Adoption — Declara-
tion that the adoption is invalid — Knowledge —
Death of adopter — Date from which limitation runs.
B adopted N on the 17th March, 1891. On the
30th March, 1897, B died. The plaintiffs filed this
suit on the 14th April 1899 for a declaration that
the adoption of A' was invalid : — Held, that the suit,
not having been brought within six years from the
17th March, 1891, the date on which the plaintiffs
came to know of the adoption, was'; barred under
Art. 118 of Sch. II to the Limitation Act (XV of
1877) ; and that the fact that B died within six
years of the date of the suit could not prevent the
bar of limitation. Ramchandra Vinayak Ktjl-
KARNi V. Narayan Bajaji (1908)

I. L. R. 27 Bom. 614

Limitation Act

(XT' of 1877), Arts. IIS, 1-11 -]Vhen suit ii for pos-
session. Art. 141 and not Art. US applies. Art. 118
of Sch. II of the Limitation Act appUes only to
declaratory suits in respect of adoption and not to
suits for possession of immoveable property. The
period of limitation appUcable to the latter class of
suits is that prescribed by Art. 141 of Sch. II of the
Limitation Act. Thakur Tribhuwan Bahadur
Singh, Y. Rajii Rfiineshar B'llch^h Singh, L. R. 33
I. A. 156, followed. Velaga Mangamma v. Bandla-
MUDi Veerayya (1907) . I. L. R. 30 Mad. 308

__- Arts. 118, 119 (1871, Art. 129)—

See Declaratory Decree, suit for —

Adoptions . I. L. R. 1 Bom. 248

Under the Act of 1859, a suit simply to set aside

an adoption was governed by cl. 1(5 of s. 1, and in

some cases the cause of action was held to arise at

the date of the adoption.

See Mrinmoyee Dabee v. Bhoobun-
MOYEE Dabee . 15 B. L. R. 1 : 23 W. R. 43
and Kalova kom Bhujangbav v. Padapa walad
Bhttja>'grav . . . I. L. R. 1 Bom. 248
In another ca.'-e, the cau^e of action was held tu
accrue on the death of the adoptive mother, and not
at the date of the adoption. Taeini Chuen Chow-

DHBY V. SaRODA SunDARI DaSI

3 B. L. R. A. C. 145 : 11 W. R. 468

Where the suit was combined with one for pos-
session of property, the suit was governed by cl. 12
of s. 1, and a period of twelve years' limitation was
allowed. Tarini Charan Chowdhry v. Saroda

SXJNDARI DaSI

3 B. L. R. A. C. 145 : 11 W. R. 468

IswAR Chandra Mitter v. Shama Stxndari Dasx

3 B. L. R. A. C. 150 note

Radha Kissoree Dossee v. Guthee Kissen

Siecar . . . W. R. 1864, 272

LIMITATION ACT (XV OF 1877)-confe?
Schedule II — contd.

Arts. 118, 119— conld.

In Hueonath Chowdhry v. Htjere La

Shaha 11 W. R. 4'

it was held that a mere notice that an adoption b
taken place is not of itself a cause of action frc
which limitation would run to bar a reversioner,-
ruling which seems to be set aside by the prese
Act.

Suit to set aai

adoption — Ignorance of adoption or its validitf
Cause of action. In a suit to set aside an adopti"
the period of limitation is not to be reckoned frc
the date of the adoption if the members of t
family who seek to set it aside have by their declar
tion or conduct subsequently shown that they d
not know of the adoption or did not regard it
valid : it should be reckoned from the time wh'
there was distinct knowledge of the validity of t
adoption. Sooburnomonee Dabea v. Petamb
DoBEY . . Marsh. 221 : 1 Hay 41

See {contra), Radhakjssen Mahapatt
V. Sbeekissen Mahapatteb . . 1 W. E. (

2. . Act IX of. IS,

Sch. II, Art. 129 — Suit to establish or set aside adi
tion. The provision in the schedule to the Limit
tion Act, 1871, wherein it is enacted that with r(
pect to a suit to establish or set aside an adopti.
the time when the period of limitation begins !
run is ' ' the date of the adoption, or (at the opti^
of the plaintiff ) the date of the death of the adopti
father," does not interfere with the right whic
but for it, a plaintiff has of bringing a suittorecc
possession of real property within twelve yet
from the time when the right accrued. R
Bahadur Singh v. Achumbit Lad

L. R. 6 I. A. 110 : 6 C. L. E

Suit to set a>

Hon. Plaintiff sued in 1877 to set aside
adoption which was alleged to have taken pk
twenty years before, and, as heir of the husband
the last Adhikar, who died in 1282, to obtain P'
session of a certain temple, and properties attacbji
thereto whicli the defendant claimed under the Si^
adoption. Held, on the authority of Raj Bahac{
Singh V. Achumbit Lai, L. R. 6 I. A. 110 \
C.L.R. i-?, that the suit was not barred by A
129, Sch. II of Act IX of 1871. Purna Nar.
Audhikar v. Hemokant Audhikar

6 C. L. E

Suit to obtai

declaration that an alleged adoption is invalid
never took place — Suit for possession of immovea-
property— Act XV of 1S77, Sch. II, Art. 141. M-
118 of the Limitation Act applies only to 8U»
where the relief claimed is purely for a declarat*
that an alleged adoption is invalid or never in ff
took place. Such a suit is distinct from a suit r
possession of property, and the latter kind of S**
cannot be held to be barred as a suit brought un<r
Art. 118, merely by reason of its raising a quest >

( 7197 )

DIGEST OF CASES.

( 71

.IMITATION ACT (XV OF 1817)-contd.

Schedule 11— con iii.
Arts. 118, 119— contd.

'. the validity of an adoption, but is separately i ro-
dedfor by Art. 141. It is discretionary in a
ourt to gra'nt relief by a declaration of a right,
id consequently the fact that a person has not
led for a declaration should not be a bar to a
it for possession of property on any ground
limitation prescribed for the former. Basdeo
GoPAL . I. li. E. 8 All. 644

5. ■ Act IX of 1S71,

■t. 129 — Meaninij of " ■■iitit to set aside adoption.'''
■:. 129 of Sch. II of Act IX of 1871, the Indian
mitatiou Act of that year, using the expression
suit to set aside an adoption," denoted a suit
inging the validity of an adoption into question ;
,d the rule of limitation given by that article
plied to all suits in which the suitor could not suc-
.'d without displacing an apparent adoption, in
ssession. The plaintiffs, as collateral heirs of a
ildless Hindu, questioned the adoptions jjurport-
; to have been made b}' his widows in pursuance
iuthority from him ; such adoptions having been
lowed by continuous possession, and having
;n recognized in formal instruments, proceedings
»i decrees to which the plaintiffs were parties: —
.7«f, on the ground that the adoptions were brought
io question more than twelve years after their date,
1')Ugh less than twelve years after the plaintiffs'
lies, if any, had accrued at the death of the sur-
• ing widow, that the suits were barred under
-:. 129 of Sch. II of Act IX of 1871. Partof the
1 guage of the judgment in Eaja Bahadur Singh
yAckumhit Lull, L. li. 61. A. 110, referred to ; and
t t case, in which the plaintiffs' claim was not
ai'cted by the widow's adoption, distinguished
f ai the present. Jagadamba Chaodueani v.

I'KHINA MOHUN RoY ChAODHRI. SaEODA MOHTTN

I V Chaoduei v. Dakhina Mohun Roy Chaodhei

I. L. R. 13 Calc 308

L. R. 13 I. A. 84

. Suit questionimj

a\idoptio7i — Invalidity, by Hindu law, of second
a^Aion. An adopted son, })roprietor in posscs-
fl);i of half of the estate of his adoptive father,
djiased, sued to obtain the other half which was in
tl defendant's possession. The defence was that
tlilatter was entitled to the half share in dispute,
t;|ing been adopted to the decea sed under a power
g' n by him to his widow, and exercised by her :
~\dd, that the suit, having, in order to succeed,
D'ligbt into question the second adoption, was a
sujto set aside an adoption within the meaning of
Aj 129, Sch. II, Act IX of 1871, of the Limitation
A'jin force for a period after the cause of suit had
»r|'n. Jagadamba Chaodhrani v. Dakhina
Aijan, /. L. R. 13 Calc. SOS : L. B. 131. A. S4,
re red to and followed. With reference to the
co|ng into operation of the subsequent Limitation
A(|(Xy of 1877), s. 2 of the latter Act prevented
^h'.'evival of any right to sue already barred by
tii'ji5eviousAct,as the right now claimed bad been.

LIMITATION ACT (XV OF IQll)— contd.
Schedule 11— contd.

Arts. 118, IIQ— contd.

A-ppasami Odayar v. Subramanya Odayar, I. L. R.
12 Mad. 26 : L. R. lo I. A. 167, referred to. It
was nevertheless clear that, if this suit had not been
barred, the second adoption could not have been
held valid under Hindu law as an adoption ; be-
cause, by that law, a second adoption cannot be
made during the life of a son pre%nously adopted.
Ranrjama v. Atchama, 4 Moo. I. A. 1, referred
to. MoHESH Narain Munshi v. Taruck Xath
MoiTEA . . . I. li. R. 20 Calc. 487

L. R. 20 I. A. 30

and Art. 125 — Suit by reversioner

to declare adoption invalid and set aside alienation.
Where a plaintiff as reversioner prayed for a decla-
ration that an adoption alleged to have been made
by a Hindu widow eighteen years before suit, was
invalid, and that the sale of certain property made
by the widow and the adopted son two years before
suit was not binding upon him : — Held, that the
suit, being substantially brought to declare the
invahdity of the sale so as to enable plaintiff to
recover as reversioner on the death of the widow
and adopted son, and the declaration as to the
adoption being ancillary to that claim, was not
barred by hmitation. Srixivasa v. Vexkatea-
M.AjsA . . . I. li. R. 5 Mad. 12L
8. Suit for declara-
tion that alleged adoption is invalid. Where, in a suit
brought in 1885 for a declaration that an adoption
alleged to have taken place in 1871 was null and void,^
the factum of adoption was di.sputed, and it was net
shown that the alleged adoption became known to
the plaintiff before 1881:— Z/eZrf. with reference to
Art. 118 of Sch. II of the Limitation Act (XV of
1877), that the suit was within time. Jagadamba
Chaodhrani v. Dakhina Mohun Roy Chaodhri, I. L.
R. 13 Calc. 308, distinguished. Gaxoa Sahai v.
Lekhraj Singh . . I. L. R. 9 All. 253

Suit for pa^session

where adoption is set tip — Hindu law, adoption.
Against a claim for the proprietary right by in-
heritance brought by the nearest bandhu, or cog-
nate heir, of the deceased, the defendant in pos-
session set up his adoption by the widow under her
husband's authority. The Courts below had
found that no such authority had been given, and
that the widow, not adopting to her husband, had
adopted the defendant as her son : — Held, that, on
the facts found, this was not a suit to which hmita-
tion under Art. 118, Sch. II, Act XV of 1877, was
apphcable. Lachmax Lal Chowdhiu v. Kanhava
Lal Mowar . . I. li. R. 22 Calc. 609
li. R. 22 I. A. 51

10.

Suit for possession

of property incidentally necessitating the settin/j aside
of, or declaration of invalidity of, an adoption. Art.
118 of Sch. II of the Indian Limitation Act apphes
only to suits for a declaration that an adoption is
invalid or in fact never took place ; it does not

( 7199 )

DIGEST 0¥ CASES.

I 7200 )

LIMITATION ACT (XV OF 1877)-
Sehedule II — conld.
Arts. 118, 119 — contd.

contd.

apply to a suit for possession of property merely
because it may be necessary in order to give effect
to the relief claimed in such suit to find that a given
adoption is invalid. Bnsdeo v. Gopal, I. L. R. *
All 6U ; Ghandharap Singh v. LacTiman bingh, I.
L R 10 All. 4S5 ; Padajirav v. Ramrav, I. L. R.
13 Bom 160 ; and Lala Parbhu Lai v. Mylne, I. L.
R. U Calc. m, referred to. ^^^^thu Singh ._.
Gtjlab Singh . . • I. L- B. 17 All. lb/

11.

Suit for possession

hu Hind2i icidow as heiress— Defendant in possession
under an alleged adoption. A Hindu died in 1884,
leavin" the plaintiff, his widow, certain landed
and other properties. The defendant claimed, to
the knowled-e of the plaintiff in 1885, to have been
adopted by tie deceased, and from that date he had
claimed as an adopted son to be entitled to the estate
of which the plaintiii never enjoyed possession. She
now sued in 1893 for possession with mesne profits,
allec'in'' in the plaint that the adoption had been
falsdy^'set up, but seeking no declaration with re-
gard to it — Held, that the suit was barred by hmi-

no Suit for possession

of ir^moveable propertij by a Hindu, on the allegation
that he uxis the reversionary heir by adoption of the
last otmer. In a suit brought by the plaintiff to
recover possession of certain immoveable properties
on the allegation that he was the great-grandson by
adoption of one R who was the brother of one V
to whose adopted son the said properties originaUy
belonc^ed, the defence was that the suit was barred
bv Hmitation under Art. 119, Sch. II of the Limita-
tion Act. i/eW, that Art. 119 of Sch. II applies
only to a suit for a declaratory decree as to the
validity of an adoption, and that the present suit,
-which was one for possession of immoveable pro-
perty, was not barred under that article, notwith-
standing that the plaintiff had to establish the
validit\'' of an adoption as the basis of his title.
Parvat'hi v. Saminatha, I. L. R. 20 JIad. 40,
dissented from. Lfila Parbhu Lai v. Mylne, L
L. R. U Calc. 401 ; Basdeo v. Gopal, I. L. R. 8
All. 644 ; Ganga Sahai v. Lakhraj Singh, I. L. R.
'y All. 253 ; Natthu Singh v. Golap Sing, 1. L. R.
17 All. 167 ; Padajirav v. Ramrav, L L. R. 13
Bom. 160 ; Fannyamn x. Manjaya Hehbar, I. L.
R. 21 Bom. 159 ; and Hari Lai Pranlal v. Bai
Rcwa. I. L. R. 21 Bom. 367, referred to. Jagax-
NVTH Pk\sad Gupta v. Rcxjit Singh

I. L. K. 25 Calc. 354

LIMITATION ACT (XV OF 1877)— coniJ.
Schedule II— contd.

Arts. 118, 119— contd.

25 Calc. 354, referred to. Ram Chandra Mckei

JEE V. Raxjit Singh . I. L. R. 27 Cale. 24

4 C. W. M-. 4C

14. Suit to recover pc

session of immoveable property by setting osi'i
adoption. An adoption was made by J/, a Hinc
widow, to her husband J in 1854, when the plainti?'
father, the then nearest reversionary heir to J.
alive and the adopted son B got actual possessi'
the property left by J, on the 14th April, I-
under a deed of gift executed by M. M died o:
6th February 1883, and B was succeeded by hi-
the present defendant. The plaintiff's father ,
on the 15th October 1875, and the plaintiff attain
his majority on the 28th July 1894, having be
born on the' 29th July 1873. The plaintiff broug,
the present suit against the defendant, on the 281
January 1895, for the recovery of the propert
left by J as being nearest reversionary heir. He.
that the suit was barred under Art. 129 of t|
Limitation Act {IX of 1871), as it involved Iji
setting aside of an adoption made in 1854, havi';
been brought after twelve years from the dat«.of li
adoption, and the period of hmitation having co[
menced to run during the lifetime of the plainti:j
father. Haknabh Pershad r. ;Mandii. Dass ,
I. L. R. 27 Calc. r

13. . . Suit for possession

of immoveable property on a declaration that an adop-
tion is invalid. Ai't. 118, Sch. II of the Limitation
Act, does not apply to a suit for possession of im-
moveable property, though it may be necessary for
the plaintiff to prove the invalidity of an adoption.
Jggannath Prasad Guptei v. Runiit Simjh, I. L. R.

15.

and Arts. 119 and 141-

by reversioner for a declaration that adoption «•',
valid and for recovery of possession — Limitation t
(IX of 1S71), Sch. II, Art. 129—Limitatiov. Act(lf
of 1S59), s. 1, els. 6 and 12— Specific Relief Ad (,/
1S77), s. 42. S and K were two divided broth u
They were members of a vatandar family. K dJ
leaving two sons S R and T. S R was givern
adoption to S. T died leaving a widow and tl|e
daughters. In 1872 T's widow G adopted defel-
ant No. 1, and she dred in the year 1890. In ! -
5's grandson by adoption, the present plain:
minor represented by his adoptive mother, sv.
a declaration that the adoption of defendant
was invahd, for a declaration of ownershr,
possession of property with mesne profits, ai
an injunction -.—Held] that the suit for a deck:
that the adoption was invahd was governed l'>
lis, Sch. II of the Limitation Act, and being '
under that article, the whole claim was time-l.
Per Jenkins, CJ. — A combination of j?'
claims would not in general deprive each clan:
specific character and description. P&r Candy.
Primarily the case is governed by Art. 141,
the defendant in possession can plead "'I a
your knowledge or to the knowledge of your
decessor in title in possession as a son allei;^
have been validly adopted by the widow, on '
death vou claim possession," then the ca-
aoverned by Art. 118. Per Tyabji, J.—{^'
lis of Sch. II of the Limitation Act app-
every suit where validity of the defendant s
tion is the substantial question m cii-

( 7201 )

DIGEST OF CASES.

( 1202 )

MITATION ACT XV OF 1811)— coM. LIMITATION ACT (XV OF l811)-contd.
Schedule Jl—contd. Schedule 11— contd.

Arts. U8, 119— Gondd.

ether such question is raised by the plaintiff
■ the first instance or arises in consequence of
. iendant setting up his own adoption as a bar to
i> plaintiff's success, (ii) Art. 141 applies to
1' ordinary simple case of a reversioner where
!• validity of the adoption is not the sub-
r ntial point in dispute, or -n-here the plaintiff can
t ceed with out impugning the validity of the
ceadanfs adoption. Fnnnyamma v. Manjaya
.•4ar, 1. L. R. 21 Bom. 159. overraled. SHKrsiVAS
I; .AB V. Haxma>-t Chavdo De?hpa>-de

I. L. R. 24 Bom. 260

Arts. U8, 141—

.ifi Limitation . I. L. R. 30 Mad. 308
Suit to recover

ivwveable property on the death of Hindu widow —

A'ption, miidity of, collaterally involved — Limita-

<i — Convict of decisions. A suit by reversioners

f< the recovery of immoveable property on the

d :h of a Hindu widow is governed by Art. 141 and

p by Art. llSof Sch. II of the Limitation Act,

' - • izh. a question as to the validity of &aanu-

: executed in favour of the widow and of an

: made imder it be involved in such suit.

dra Mukerke v. Ranjit Singh, 4. C. W. N.

I. L. R. 27 Calc. 242, followed. In the

; DiXEXDBA Xath MrixicK (190.5)

9 C. W. N. 222

Art. 119—

— ;— Adoption — Suit for

i>it*ion of immoveable property, plaintiff

fts adopted son, his title as such having been

defendant more than six years before suit.

it Art. 119 of the second Schedule to the

-imitation Act, 1877, did not apply to a suit

-ion of immoveable property in which the

claimed as the adopted son of the last

:: r of the property' and in which the plaint-

ption was denied by the defendant, and

iff himseh' alleged that his right as adopted

>een interfered with more than six years

'-■ institution of his suit. Basdeo v. Gopal,

■^ All. 644 ; Ganga Sahai v. Lekhraj Singh,

t!- 9 All. 253, ■ Ghandharap Singh v.

Singh, I. L. R. 10 All. 4S5 ; Natfhn

Gulab Singh, I. L. R. 17 AH. 167 ; Lola

111 V. Mylne, I. L. R. 14 Calc. 401 ; Jagan-

-ad Gupta v. Run jit Singh, I. L. R. 25

"/ ; Padajirav v. Ramrav, I. L. R. 13 Bom.

nyamma v. Manjaya Hehdar. I. L. R. 21

'■ and Harilal Pranlalx. Bai Rewa, I. L. R.

376, followed. Inda v. Jehavjira, All.

Xotes (1S90) 241; Parvati Ammal v.

1 Gnrulal, I. L. R. 20 Mad. 40, and

• V. Hanmant, L. R. 24 Bom. 260, dissented

'^gadamba Chaodhrani v. Dakhina Jlohun

■ 'dhri, I. L. R. 13 Calc. SOS ; Mohcsh Xarain

VOL. III.

Art. 119— contd.

JIunshi V. Taruck Saih Moitra, I. L. R. 20 Calc.
4S7, and Lachman Lai Chowdhri v. Kanhaya
Lai Alowar, I. L. R. 22 Calc. 609, distinguished.

LaLI I'. MUKLIDHAE (1901)

I. Ii. R. 24 AIL 196

2. Adoption — Invali-
dity of adoption — Limitation. Art. 119 of Sch.
II to the Limitation Act (XV of 1877) appUes to a
case where plaintiff has no title except one based on
an adoption of disputed validity. But if the plaint-
iff has another ground which would suffice, whether
the adoption were or were not proved, then he is
clearly entitled to recover on that other ground,
and his suit cannot be rejected merely because it
might be barred if he had to rely on the adoption
alone. Shrinivas v. Hanmant, I. L. R. 24 Bom.
260, referred to. Gaxgabai v. Tarabai (1902)

I. Ii. R. 26 Bom. 720

3. — No adverse in-
terest as between the parties — Adoption — Suit to
declare validity of adoption — Interference with adop-
ted son, nature of. Art. 119 of Sch. II of the Limi-
tation Act (XV of 1877) applies to a suit " to ob-
tain a declaration that an adoption is valid," and
there are no words in it making it applicable to a
suit for a declaration that an alleged adoption did
take place. The article is, therefore, to be applied
only where the question is not as to the factum, but
the validity of an adoption. The interference
mentioned in the article as a condition of its applica-
tion so as to bar the plaintiff's right altogether is
obviotisly an interference, which must amount to an
absolute denial of the status of adoption held by a
plaintiff and an unconditional exclusion of him
from the enjoyment of his rights in virtue of that
status. The article can have no application to a
case where the facts suggest that the interference,
such as it was, was intended to have no greater
effect than that of postponing the right of the adop-
, ted son to succeed as heir to the property of his
adoptive father. Xisgawa v. Ramaffa (1904)

I. Ii. R. 28 Bom. 94

Adoption — Period

of limitation applicable to suits where factum
and also validity of adoption is denied. Suits in
which either the factum or validity of an adoption
is denied are governed by the provisions of Article
119 of Sch. II to the Limitation Act (XV of 1877).
The observations to the contrary in Xingawa v.
Ramappa, I. L. R. 2$ Bom. 94, and Shirram v.
Krishnabai, I. L. R. 31 Bom. $0, dissented from.
Shrinivas v. Hanmant, I. L. R. 24 Bom. 260, fol-
lowed and applied. Laxmana v. Ramappa (19o3)
I. L R. 32 Bom 7

Ats. 119, U 8 and 1^

Suit by an adopt-

ed son more than six years after interference icith
plaintiff's rights — Claim for declaration as to

10 u

( 7203 )

DIGEST OF CASES.

( 7204 )

LIMITATION ACT (XV OF 1877)-

Schedule ll~contd.
— Art. 119 — contd.

conti.

adoption, ai\d to recover possession of property due to
plaintiff as adopted son — Maintainability. Plaintiff's
rights, as the adopted son of A, were interfered
with, in connection with certain immoveable pro-
perty, in 1889. In 1897 plaintiff sued for a declara-
tion that he was the adopted son of A, and sought to
recover the property -.—Held (Bhashyam Ayyangak,
J., dissenting), that the suit was barred under Art.
119 of Sch. il to the Limitation Act. Jagadamba
Chaodhrani v. Dakhina Mohun, L. R. 13 I. A. 84,
followed. Parvati Ammal v. Saminajha Gurukal, I.
L. R. 20 Mad. 40, and Shrinivasa v. Hanmant,
I. L. R. 24 3om. 260, approved. Per Moore,
J. —Where a plaintiif cannot obtain a decree for
possession without a decision that an adoption is in-
vahd or never in fact took place, or that an adoption
is valid, the question whether his claim is barred by
limitation must be decided ^^ith reference to the
provisions of Arts. 118 and 119 of Sch. II to the
Limitation Act. Per Bhashyam Ayyangab, J.—
The suit was governed by Art. 144. Art. 119 is
applicable only to a suit of the character defined by
s. 42 of the Specific Relief Act, for a declaration that
the plaintiff is entitled to a status or legal character
as adopted son. In the present case, the plaintiff
having been out of, and the defendant having been
in, possession since 1889, plaintiff could not main-
tain a suit for a mere declaration of title, and the
only suit he could maintain was the present, which
was governed by Art. 144, and was, in consequence,
not barred. Ratnamasaki v. Akilandammal
(1902) . . . . I. L. R. 26 Mad. 291

Arts. 119 and 144 — Hindti law —

Adoption — Suit by adopted son to recover possession
of property of adoptive father after death of the latter
— Interference with rights of adopted son — Limitation.
The plaintiff claimed as an adopted son to recover
from a person alleged by him to be wrongfully in
possession thereof moveable and immoveable pro-
perty, which had belonged to his adoptive father.
For the defendant it was asserted that the rights of
the plaintiff as an adopted son had been interfered
with by his adoptive father more than six years
before suit, and that the suit was in consequence
barred by limitation, appl3ing Art. 119 of the second
Schedule to the Indian,Limitation Act, 1877 : — Held,
by Stanley, C.J., that to such a suit Art. 144, and
not Art. 119 of the second Schedule to the Indian
Limitation Act, 1877, applied, the suit being one for
possession on title and net merely for a declaration
as to the validity of an adoption, and the suit Mas
within time. Held, also, that the interference
alluded ta in Art. 119 must be an interference caused
by the defendant to such a suit as the article cora-
templatcs, and not an interference caused by some
third person. Nathu Singh v. Gnlah Singh, I. L.
R. 17 All. 167 ; Basdeo v. Gopal, J. L. R. 8 All.
644 ; Ghandharap Singh v. Lachman Singh, I. L. R.
10 All. 485 ; Padajirav v. Ramrav, I. L. R. 13 Bom.
160 ; Lata Parbhii Lai v. Mylne, I. L. R. 14 Calc.

LIMITATION ACT (XV OF 1877)— con«(f.
Schedule II — contd.

Art. 119— conoid.

401 ; Lali v. Murlidhar, 1. L. R. 24 All. 195, and ;
dissentient judgment of Bhashyam Ayyangak, ,
in Ratnamasari v. Akilandammal, L L. R. 26 M .
291, followed. Shrinivas Murar v. Hanmt
Chavdo, I. L. R, 24 Bom. 260, and the judgmes
of the majority in Ratnamasari v. Akilandam.i
dissented from. Jagadamba Chowdhrani v. Dakh a
Mohun, L. R. 13 I. A. 84, distinguished. >
BoBKiTT, J. — Even if Art. 119 of the second Sc-
dule to the Indian Limitation Act, 1877, was i-
plicable to the suit, the only interference with e
rights of the plaintiff as an adopted son, will
could avail the defendant, was the interfereie
caused by the defendant herself, and that was -U
within the period of limitation mentioned in .t.
1 19. But Art. 119 did not apply to the present it
which was governed in respect of limitation by . t.
144 and was not time-barred. Jagadamba Civ-
dhrani v. Dakina 2Iohim, L. R. 13 I. A. 84 ; Mo<h
Narain Moanshi v. Taruck Nath Moitra, L. R'JI
I. A. 30, and Luchman Lai Chowdhry v. Kaim
Lai Mowar, L. R. 22 I. A. 51, distinguished. Jan.
nath Prasad Gupta v. Runjit Singh, I. L. R. 25 i'c,
354 ; Ratnamasari v. Akilandammal, I. L. 12S
Mad. 291, and Shrinivas Murar v. Hanmant Cho'o-
I. L. R. 24 Bom. 260, referred to. Chandax '■•
Salig Ram (1904) . . I. L. R. 26 AlUO

Art. 120 (1871, Art, 118 : l-''9,

s. 1, el. 16)— I

See ante, ss. 23 and 28 and Sch. II, In.
120, 142 AND 144. I

See ante, Sch. II, Art. 10. ,

I. L. R. 24 Al)l7

See Bengal Tenancy Act, s. 107. t
I. L. R. 28Calc.f76

^ee Bombay' Revenue Jctrisdiction
s. 4 . . I. L. R. 16 Bom,

See CONTRIBITTION, SUIT FOR — PaY

OF Joint Debt by one Debtor. '
I. L. R. 26 Mad,e8

^'ee Declaratory Decree, sl'it j
Suits concerning Document^
L. R. 29 I. A
7 C. W. Ntik>
13 C. W. N567
See Hindu Law — Endowment- Di
WITH, AND Management of. !■:

MENT . . . 5C. W. ]N

See Land Registration. i

11 C. W. Iflw

See Land-revenue. ^„-

I. L. R. 26 Ma<;730

^ee Landlord and Tenant— Natc'^^'^

Tenancy . L L. R. 27 Bon ol&

See Mahomedan Law — Endowme

See Executor

LL. R-lSBoD-lOl

( 7205

DIGEST OF CASES.

( 7206 )

LIMITATION ACT (XV OF 1877)-

Schedule II — contd.
I Art. 12,0— contd.

:ontd.

LIMITATION ACT (XV OF 1817)— contd.

Schedule 11— contd.
Art. 120— contd.

1 See Malabar Law— Joint Family.

I. li. R. 15 Mad. 6

See Partnership . 12 C. W. N. 455

See Trust . VL. R. 18 Bom. 551

The general period of limitation of six years under
!. 16 of s. I of the Act of 1859 was necessarily much
. ider in its application than is Art. 120 of the present
iOt, so many more suits being now specially pro-

ded for. There was under the Act of 1859 a
1 lerence of three years in the period of limitation
pplicable to contracts registered and that ap-
licable to unregistered contracts which could have
een registered, the period being six years for the
inner, and three years for the latter. Suits on con-
acts which could not have been registered were
insidered as cases not specially provided for, and 1
I'ld to be governed by the general limitation of six |
;!ars. j

See Ali Saib v. Saniyasxraz Pedda Balaiya !

ASiMHiJLU .... 2 Mad. 401 i

■ ;VEiiiAPPBN Chetty v. Nootoo Theevax j
1 2 Ind. Jur. O. S. 11

iGusivi C^HETTY V. AiYAPPA Naidu 2 Mad. 329

•BoiSTUB Churn Doss v. Prem Chand Mitter
4 W. B. 98

' Ul-NDER SeIN V. GUJADIIUR LaLL

1 N. W. 148 : Ed. 1873, 230

Leslie v. Panchanan Mitter

8 B. L. R. 668 : 15 W. R. O. C. 1
I'vARi Chand Mitter v. Frazer.

6 B. L. R. Ap. 60

Official Assignee v. Frazer
, 14W. R. O. C. 51

(In the present Act the distinction is between j
"Mtracts not in writing registered " (Art. 115)
■ contracts in wi-iting registered " (Art. 116).

. Contract to cuUt-

», indigo, suit for damages for breach of — Act X of
J'fi. s. 3. A contract to sow and cultivate indigo ,
Hvided for liquidated damages ijayable in a lump j
« 1 in the first year in which a breach of contract |
t k place -.—Held, that a suit for damages to the
«jmt of the injury sustained brought under s. 3,
j -^ °^ 1836, against a party for prevailing upon i
ryats who had entered into a lawful contract with !
■" plaintiff, to break that contract, was governed
bj.he six years' limitation provided by cL 16, s. 1,
■^ XIV of 1859. Mahomed Kazem ( 'howdhry v. '
""^ . . . . 5W. R. 277

OMED Kazem V. Forbes . 8 W. R. 257
HE3 V. Partab Singh Doogur

7 W. R. 401

;-; Suit for declara-

r-'.es. The general period of six years extend-

ed to suits in which a declaratory decree and
nothing more was sought. Per Melvill, J. — MoRU
BIN Patlaji v. Gopal bin Satu.

I. L. R. 2 Bom. 120

Nanabai Haridas, j., in the same case decided,
however, that it would not apply where the declara-
tion sought was of a right in immoveable property.

See, also, Dolhun Jankee Kokr v. Lai,t,
Beharee Roy . . . .19 W. R. 32

It was also held not to apply to a suit for a de-
claratory decree as to the erroneousness of a Magis-
trate's order as to possession under the Criminal
Procedure Code. Meghraj Singh v. Rashdha-
ree Singh . . . . 17 W. R. 281

Undhoob Singh v. Chutterdharee Singh

9 W. R. 480

3. . . Suit for dechra-

tion of title — Possession. Limitation Avill not apply
to a claim for a declaration of title, where the plaint-
iff is in possession of the land regarding which the
declaration is required. Puree Jan Khatoon v.
Bykunt Chunder Chuckerbutty . 7 W. R. 96

4. Suit for declara-
tion of title to, and possession in, immoveable 'pro-
perty— Limitation — Limitation Act (XV of 1S77),
Sell. U, Arts. 120, 144. A suit for a declaration
of right to, and of actual possession in, immove-
able property is governed by the limitation
prescribed by Art. 120 of the second Schedule to the
Indian Limitation Act, 1877. Morubin Patlaji v.
Gopal bin Satu, I. L. R. 2 Bom. 120 ; Durga v.
Haidar Ali, I. L. R. 7 All. 167 ; Bhikaji Bajix.
Pandu, I. L. R. 19 Bom. 4-3 ; and Mahomed Riasal
Ali V. Hasin Banu I. L. R. 21 Calc. 157, referred to.
The judgment of Oldfiei.d, J., in Debi Prasad v.
Jafar Ali, I. L. R. 3 All. 40, not foUowed. Legge
V. R.ambaran Singh . . I. L. R. 20 All. 35

The general limitation of six years was held und( r
the Act of 1859 not to applv to di%'orce s\iits. W\\
V. Gordon . 10 B. L. B. 301 : 18 W. R. 480

5. _ - Suit for abatement

of rent — Suit for apportioninent of rent — Beng. Act
VIII of 1S69, s. 19. In 1877 certain batwara pro-
ceedings were terminated, and the amount of land
held by the plaintiff in the portion of the estate
allotted to the defendant was ascertained. The rent
payable was admitted to be at the rate of R4 per
bigha. In 1881 the defendants sued the plaintiff for
rent of a larger amount than the plaintiff admitted
to be due, and obtained a decree on the 31st Mav,
1881. On the 20th September, 1881, the plaintiff in-
stituted a suit nominally under the provisions of s.
19 of Bengal Act Vlll of 1869 for abatement of
rent upon the ground that the defendants were
seeking to charge him rent upon a larger amount <if
land than he actually held. The defendants plead-
ed that the suit was barred by hmitation as being
brought more than one year after the cause of action

10 u 2

7207 )

DIGEST OF CASES.

( 7208 )

LIMITATION ACT (XV OF 1811)— <:onld.

Schedule II — conM.
Art. 120— conhl.

accrued. The Court found that the amount of land
held by the plaintiff was the amount stated by him
in his plaint, and not that alleged by the defendants.
Held, that the suit was rather one for the appor-
tionment of rent after the batwara proceedings, and
not one for abatement of rent, and that it was not
barred by limitation, inasmuch as the period al-
lowed for such suit must be taken to be six
years, and not one year. Dooega Pershad v.
Ghosita Goria . . I. L. B. H Calc. 284

Suit for the ap-

portionment of assessment on land. In a suit by the
holder of one share against the holders of other
shares in inam land included in a single pottah and
asi-essed in an entire sum, for apportionment of the
assessment, it appeared that the plaintiff had asked
for the apportionment to be made more than six
years before suit : — Held, that the suit was not bar-
red by limitation : s. 120 was not apphcable to such
a suit. Akanda Razu v. Viyyanna

I. L. R. 15 Mad. 492

Breach of cove-

nant in lease. The defendant took certain land
from the plaintiff under a registered lease, which
contained a clause prohibiting the defendant from
digging a tank on the land without the plaintiff's
permission. The defendant having nevertheless
constructed a tank without such permission, the
plaintiff brought a suit to compel him to fill up
the tank, or, in case he should fail to do so, for com-
pensation : — Held, that the period of limitation ap-
plicable to such a suit was Art. 120 of Sch. II of the
Limitation Act. Kedaenath Nag v. IChettur-

PATJL SEITIRUTNO

I. Ii. E. 6 Gale. 34 : 6 C. L. R. 569

Suit to recover

compensation-money wrongfully draum out of Col-
lectorate. A , a Hindu widow, granted, without lega 1
necessity, a mokurari lease of certain mouzahs,
portion of her hu.sband's estate, to B. During i>'s
possession part of the lands comprised in the granted
mouzahs were taken up by Government, and the
compensation-money waslodged in the Collectorate.
A having afterwards died, the next heirs of A's
husband, on the 7th October, 1871, sued B to re-
cover possession of the mouzahs, but not being
aware of the facts, did not in that suit claim the
compensation-money lying in the Collectorate.
While this suit was still pending, B in March, 1872,
drew the compensation-money out of the Collec-
torate. The heirs, after obtaining a decree against
B for possession of the mouzahs on the 13th Sep-
tember, 1875, instituted a fresh suit against him to
recover the compensation-money MTongfulIy drawn
out by him from the Collectorate ; — Held,tha,t it was
not barred by hmitation, although more than three
years had elap.sed since the monej^ had been drawn
out by B,— Art. 118, and not Art. CO, of Sch. II of

LIMITATION ACT (XV OF 1811)—contd.
Schedule II — contd.
Art. 120 — contd.

the Limitation Act (IX of 1871) applying to tl
case. NuND Lall Bose, v. Aboo Mahomed

I. L. R. 5 Calc. 597 : 5 C. L. B. 4

9. —^ and Art. 62— Suit for cotnperts

Hon for land wrongfully withdrawn by person rejn
senting himself as owner, ^^^aere the compensatio
money awarded by Government for land acquirl
by them had been withdrawn by a tenant repr
senting himself to be the owner, and a suit was 8u|
sequently brought by the landlord against the
nant for recovery of his share of the compensaticj
money -.—Held, that the suit came under Art. 62 \
Art. 120 of the Limitation Act, and not under A
36. Khetter Kristo Mitter v. Divendra Nar^
Roy 3C.W. N.2U

10.

Recovery of moil

deposited in Government treasury. The period :
limitation for recovery of moneys deposited iii
Government treasury, the equivalent whereof \^
to be returned, does not exceed six years. SheoM
Singh v. Collector of Moradabad 2 N". W. 2f

11.

Suit

deposit. Where A made a deposit as security r
the discharge of his duties as manager of an estd
under the Court of Wards, which deposit was lia^
for all sums not accounted for by A ; and a suit vK
after his dismissal from his appointment, brou t
for the recovery of the deposit : — Held, that
period of Hmitation allowed was certainly nci
than six years, and began to run not from the .
of his dismissal, but from the time when the -
count of charges due against the deposit was mie
and sent in to him. Upendra Lal MukhofadjA
v. Collector of Rajshahye i

I. L. R. 12 Calc. l»

12.

Suit

deductions from deposit of revenue to prevent
The six years' period of limitation applies to
to recover deductions made on account of tv\>
by the Collector from a deposit made by a shai'
a joint estate in order to protect his share from ■
by reason of the default of his co- sharer. BOYE, •
Nath Bhooya v. Ram Nath Bhooya i

4W. R. S. C. C. E€ P

13.

Suit on morl

bond to recover arnount by sale of property— P^^.^
liability of mortgagor— Cause of action. By a n, •
gage-bond, dated the 28th Magh, 1281 B. S. pi
February, 1875), it was provided that, if the n
gagors should fail to pay the money secured tli-
according to the terms thereof, the mortL;
should immediately institute a suit and real/
amount due by sale of the mortgaged property
that, if the proceeds of such sale should not w
cicnt to hquidate the debt, the mortgagee.s sli _ ^
balance from the persons and other properties o^«
mortgagors. It was further agreed that the pB'j'^
pal and interest secured by the bond should^

( 7209 )

DIGEST OF CASES.

( 7210 )

IMITATIONJACT (XV OP 1877)-

Schedule 11— contd.

-contd.

Art. 12.0— conid.

paid in the month of Magh, 1282 (Januarv-Febru-
y I870J. In a suit instituted on the 9th October.
82, upon the mortgage to recover the amount due
• the sale of the mortgaged property, and the
lance, if any, from the persons of the mortgagors :
Held, that the bend in question provided for two
medics in one suit, ami did not contemplate a
;ond suit being instituted to recover the balance
'm the persons of the mortgagors in the event of
'• first remedy against the mortgaged property
: ving insufficient to pay the debt in full, and
■nsequently th.at the cause of action against the
rsons of the mortgagors accrued upon the date
which the mortgage-money became due ; and
■ the suit was instituted more than six years after
it date, the plaintiff's claim was barred by limita-
n, so far as the personal liability of the mort-
l^ors was concerned. Miller v. Rfnoa Nath
.)Di.icK . . . I, L. R. 12 Calc. 389

?ee Chatter Mal v. Thakuri

I I. L. R. 20 All. 512

f'l Kamala Kan't Sen v. Abdl P.ask/t

I. L. R. 27 Cale. 180

.4. ■ Suit to recover

1 '-hereditary office— Kaniam. The plaintiff's
•a iptive father was dismissed from the oRice of
tiiamon the -tth of April, 1862, and the
I intiff wns appointed in his stead on the 2',tth
/iril. 1865. On the 25th September, ISG-i, the
I intill was dismissed and the second defendant
Aiointed. 'J'he present suit for recovery of the
oi^eand land attached was filed on 2l.st Septem ber,
117: — Held, on the authority of Tammirazu
Imzogi v. Pantina Narsiah, 6 Mad. 301, that the
8i. was barred not having been brought within six
y,Ti fiom the -^Sth September, lSfi5. Fattelmmgji
'ftcataamiji v, Dessai KalUnnrniji Hekumulraiji,
■^i*?. 1 I. A. 34, discussed. Venkatasubbara-
>"; YA t'. Sdrayya . . I. L. R. 2 Mad. 283

\^' _ Suit to oust a

• l»ait Irom office, the appointment to tchixh is made
«>totninalion. A suit to oust a shebait from his
oj'e, the appointment to which has been made by
niination,is one for which no period of limita-
t|i is specially provided, and is therefore gov-
e id by Art. 120 of Sch. II of the Limitation Act.
J AN Nath Das v. Birbhadra Das

I. L. R. 19 Calc. 776
J. -___

-; Time jtom which

Tdof limitation begins to run — Mortgage by
'itional sale. A mortgagee under a deed of
tgage by conditional sale obtained a final
01 r for foreclosure under Regulation XVII
P^tlSOfi in December, 1875. He then sued
Wliave the conditional sale declared absolute
*ij for possession of the mortgaged property,
O'iining a decree for the relief sought in April
■•= • In a suit for pre-emption in respect of the
™ gage :—//eW, with reference to Art. 120, Sch.

LIMITATION" ACT (XV OF 1877)-

Schedule II — contd.
Art. 120—ro7itd.

■contd.

II, of the Limitation Act, which was applicable to
' the case, that the pre-empt ir" s full right to im-
' peach the sale had not accrued until the mortgagee
I had obtained the decree of April, 1881, declaring
I the conditional sale absolute and giving him
j possession. Rasik Lai v. Gajraj Singh, I. L. R.

4 All. 414, and Prng Chauhey v. Bhajan Chaudhri.

I. L. R. 4 All. 291, referred to. Udit Stxgh v.
\ Padarath Singh . . I. L. E. 8 All. 54

17.

— Share of ini-
sale. The limitation

divided mehal — Conditional
' applicable to a suit to enforce a right of pre-emption

in respect of a conditional sale of a share of an
! undivided mehal is that contained in Art. 120, Sch.
i II of Act XV of 1877, viz., six years. Nath
i Prasad v. Ram Paltan Ram I. L. R. 4 All. 218

AsHiK Ali v. Mathura Kandu

I. L. R. 5 All. 187

18. Mortgage by

conditional sale — Right to sue. The limitation for

; a suit to enforce a right of pre-emption in respect
of a mortgage bv conditional sale is that provided

\ by Art. 120, Sch. II of Act XV of 1877,— that
is to say, six years. ]\ath Prasad v. Ram Paltan
Ram, 1. L. R. 4 All. 2 IS, followed ; and where the
mortgagee by conditional sale is not in possession
under the mortgage, and after foreclosure has to
sue for possession, the right to sue to enforce a
right of pre-emption accrues when he obtains a
decree for possession. Rasik Lal v. Gajraj
Singh . I. L. R. 4 All. 414

19.

Suit for pre-
emption — Rival pre-emptor impleaded as ' defendant.
Two suits, to enforce the right of pre-emption in
respect of a particular sale having been instituted,
the plaintiff in the one first instituted was added
a? a defendant to the other.— Held, that, as regards
him the second suit constituted a claim by one
pre-emptor against another for dtterniination of
the question whether the plaintiff or the defendant
had the better right to pre-empt the property,
which was a claim essentially declaratory in its
nature ; and there being no specific provision for
such a claim in the Limitation Act, it was gov-
erned by Art. 120 of that Act, and the right to sue f
accrued when the first suit was instituted Durga
V. Haidar Ali . . I. L. R. 7 All. 167

Beng. Reg. A'o.

XVII of 1806, s8. 7, S — Mortgage by conditional
sale — Foreclosure — Pre-emption, .^uit for. Where a

' mortgage by conditional sale had been duly
foreclosed in accordance with the procedure laid
down in ss. 7 and 8 of Regulation XVII of 1806,

' and at the expiration of the year of grace a portion
of the mortgage money remained unpaid : — Held,
in a suit for pre-emption of the mortgage pro-

' perty, that the title of the conditional vendee
became absolute on the expiration of the year of

: grace, and that the plaintiri's right of pre-emption

{ 7211 )

DIGEST OF CASES.

( 7212 )

LIMITATION ACT (XV OP 1877)— coned.
Schedule II — cont^.

Art. 120— fon«^.

accrued and limitation began to run against him
from the expiration of such year of grace. Forbes
V. Ameeroonissn Begum, 10 Moo. I. A. 340,
distinguished. Raisuddin CJiowdhry v. Khodu
Neivaz Chowdhry. 12 C. L. R. 479 ; Jaikavan
Rai Y. Ganija DTiari Rai, I. L. R. 3 All. 175 ; Ameer
All V. Bhnbo Soonduree Dehia, 6 W. R. 116;
Ajoodhya Poorer, v. Sohun Lai, 7 W. R., 428 ;
Jeoraklmn Singh v. Hooktim Singh, 3 Agra 358 ;
Budree Doss v. Durga Pra^had, 2 N. W. 284 ;
Tara Kunwar v. Mangri Meeah, 7 B. L. R. Ap.
114 ; Hazari Ram v. Shanknr Dial, I. L. R. 3 All.
770 ; Tawakkul Rai v. Lachman Rai, I. L. R. 6
All. 344 ; and Ajaib Nath v. Ma'Jiura Prasad,
I. L. R. 11 All. 164 , referred to. Prag Chauheii
V. Bhajan Chaudhri, I. L. R. 4 All. 291 ; Rasik
Lai V. Gajraj Singh, I. L. R. 4 All. 414 ; and
Udit Singh v. Padarath Singh, I. L. R. S All. 54,
overruled. Ali Aebas v. Kalka Prasad

I. L. K. 14 All. 405

21.

Suit for pre-

emption — Mortgage by conditional sale — Transfe
of Property Act (IV of 1882), ss. S6 and 87. A
plaintiff sued for pre-emption, his claim arising
out of the foreclosure of a mortgage by conditional
sale of a share in an undivided zamindari village :
— Held, that the limitation applicable to the suit
vpasthat prescribed by Art. 120 of Sch. II of
Act XV of 1877, and that limitation began to
run from the date when the mortgagee obtained
an order absolute for foreclosure under s. 87
of Act IV of 1882. Betul Begvm v. Mansur Ali
Khan, I. L. R. 20 All. 315; Poresh Nath Mopim-
dar V. Ramjodu Mojximdar, 1. L. R. 16 Calc. 246 ;
and Anwarul Haq v. Jivala Prasad, I. L. R.
20 All. 358, referred to. Raham Tlahi Khan v.
Ghasita . . . I. L. R. 20 All. 375

22.

and Art. 73 — Promissory note

— Special agreement. Held, that a suit brought
in March, 1881, upon a promissory note, dated the
12th of September, 1875, payable at any time mthin
six years upon demand, was not barred by limita-
tion, being governed, not by Art. 7.S, but by Art. 120
of Sch. II of the Limitation Act, 1877. Sanjivi v.
Erkapa . . . I. L. R. 6 Mad. 290
23. Sxiit for reftmd

LIMIT ATIOK" ACT (XV OP 1877)-<;o:r

Schedule 11— conM.

— Art. 120— contd.

24.

Suit for m >.y

faid under a decree on reversal of the decree. In a it
of 1867 the present defendant obtained a decrees
possession of a certain village and mesne profits )r
one year. Pending an appeal against that de e
execution was stayed on the present plaintiff dep( t-
ing a note for R15,000 as security. The de?e
was affirmed on appeal, and the present defencit
had the note sold in execution and drew out o\ lo
proceeds a sum for mesne profits for subseq-it
years ; but an appeal was preferred in the e: >i-
tion proceedings to the High Court, which et
aside the execution so far as concerned the mue
profits for the years subsequent to that to w ;h
the original decree related. The present plaiiff
thereupon attached and sold the village toe-
cover the balance ; before that amount was ud
to the present plaintiff, the present defenint
brought a suit against him in the District Crt
and there obtained a decree for mesne profit' or
the subsequent years, and in the execution cw
the amount of the decree out of Court. In secid
appeal, however, the High Court, on th
September, 1881 , reversed the decree of the Dis ct
Court, whereupon the present plaintiff ap]3d
for restitution under Civil Procedure Code, s. 3,
which application was ultimately disallowed- he
present suit was brought to recover the am<nti
to which that apphcation related : — Held, at
the Limitation Act, Sch. II, Art 120, wa^ ap.c-
able to the suit, which, having been filed n
9th August, 1887, was accordingly not barreoy
limitation. Narayana r. Nakayana

I. L. E. 13 Mad. 3T

25. Contribution, lit

of 7noney paid on decree afterwards reversed.
got a decree against £ for rent at an enhanced rate
on the 29th of June, 1863, which decree was
affirmed both in regular and special appeal but
was reversed by the Privy Council on the 5th of May,
1873. Between the two dates just mentioned .4 got
sixteen other decrees for rent at the enhanced rate,
based on the original one of the 29th of June, 1863.
A f ull Bench having ruled that a suit for a refund
of the excess rent would lie :— Held, that such
a suit must be brought within six years under Act
IX of 1871, Sch.IL Alt. 118 (Act \'V of 1877, Sch,
II, Art. 120). Kali Chukun Dutt v. Jogesh
Chtjnder Dutt . . . 2. C. L. R. 354

for — Liability created by ikrarnama — Svil '0»
a covenant in the ikrarnama for money paid— C it
of action. A suit upon a covenant in an ikrarnaa
executedby sonieof the defendants whowereacts
and by the guardian of the others who were mi^rs
the time when the ikrarnama was executed aa
brought by the plaintiffs for the purpose of chin-
ing from the defendants contribution in respe 'if
a debt which had been realized by the sale <
property mortgaged by the father of the pla
The defence mainly Mas that the suit was 1
by limitation inasmuch as it was not brought i
in six years from the date when the ikrarnama
executed, or from the date when the mort;.
debt became repayable upon the mortgage-bon|—
Held, that the cause of action in the case <!«e
when the plaintiffs were damnified, i.e., when [cy
paid the mortgage-debt, and as the suit ad
brought within six years from that date it waf ot
barred by limitation. Kumar Nath BHi^r-
acharjee v. Nobo Kumar Bhuttachakjee I
I. L. R. 26 Calc.*I
Smtforrec>^»

of instalment of professional tax— Towns Impvi-
ment Act, Madras [III of 1871). A suit foi:e-

( 7213 )

DIGEST OF CASES.

( 7214

LIMITATION ACT (XV OF 1877)— con^d.
Schedule II — conid.

Art 120 -contd.

j;;overy of instalments of profession tax under the
iprovisions of the Madras Towns Improvement
|Ait, 1871, 8 governed by Art. 120, Sch. II of
(the Limitation Act. Pkesidext of the Muni-
cipal Commission, GuNauR v. Srikakulaptt
Padmakazu
27.

I. li. R. 3 Mad. 124

Claim to compel

LIMITATION" ACT (XV OF \Qll)~cmtd.

Schedule 11— cmtd.
Art. 120— conW.

tnant to remove trees. Art. 120, Act XV of 1877,
pplies to an alternative claim put forward in a suit
,ir ejectment to compel the defendant to remove
I ^^es from lands leased to him for agricultural
mrposes. Gonesh Doss r. Gondour Koorwi
L L. E. 9 Calc. 147 : 12 C. L. R. 418

28. ■ — Suit for exclusive

fghl to vorshi'p. A suit for an exclusive right
,5 worship an idol is governed by Art. 118 of
let IX of 1871. EsHAN Chunder Koy v. Mox-
IohiniDassi . . I. L. R. 4 Calc. 683

29. and Art. 11— Order disallowing

'am— Civil Procedure Codes (Act VIII of 1859)
, 2i6, and (Act X of 1877) ss. 97-371. The
jcfendants attached certain property, which
\e plaintiffs alleged belonged to them. The
laintiffs preferred a claim to the property under s.
46 of Act VllI of 1859 ; this claim was disallowed
,a the 16th August, 1877. In June, 1878, the plaint-
:fs brought a suit to establish their title to the
iroperty attached, and for confirmation of posses-
on. Pending this suit, the principal defendant
led, and the plaintiffs applied for an order to
jibstitute certain persons as defendants. The
Durt thereupon directed the issue of a summons on
j.e defendants proposed by the plaintiffs to appear
id defend the suit ; but the plaintiffs failing to
liy the costs of the service of this summons, the
jiitwas dismissed on the 14th March, 1879. Oh
k 4th March, 1880, the plaintiffs again brought a
Lit to establish their title to the same property
'id for confirmation of possession : — Held, that the
jderofthe I5th August, 1877, not being an order
!.88ed under s. 283 of Act X of 1877, Art. 11 of Sch.
of Act XV of 1877 did not apply, but that Ait.
lO of Sch. II was applicable. Bissessur Bhugut
IMtieli Sahu \

I. L. R. 9 Calc. 163 : 11 C. L, R. 409
"See GoPAL Chunber Mitter v. Mohesh CntiN-

JR BOKAL I

I. Ii. R. 9 Calc. 230 : 12 C. L. R. 139 [

'""• ■ Suit after release

\m attachment. A and B, in execution of a de-
|2e obtained on the 16th January, 1877, by them
Jainst C for rent, obtained possession of certain
icperty. D, whose husband was oiigirally
jnant of the property, had sold her interest in it,
taired a n-ortgage from her vendee upon it and
jbsequently, ui execution of a decree, dated 12th
jnuary, 1877, on the mortgage, attached the pro-
|rty, but the attachment was released on the 14th
Til, 1877, at the instance of A and B. D there-

upon transferred her decree to the plaintiff, who

again attached the property, but the attachment

was again refused. The plaintiff then sued on the

18th March, 1880, to have it declared that the

decree of the 14th January, 1877, was collusive, and

that he was entitled to sell the property under the

{ mortgage decree of 12th January, 1877 : — Held,

I that the suit was governed not by Art. 11, but by

I Art. 120, of Sch. II of the Limitation Act. and tha't

j the suit was not barred. Brojo Mohux BiirTTo i-.

I Radhika Prosunno Chunder . 13 C. L. R, 139

I 3L _ and Art. 61— Monty which

I plaintiff ivas obliged to pay in consequence of acts
of defendants. On the 29th May, 1873, one T drew
from the hands of a shroff a sum of money which
had been deposited by him in the name and to
the credit of a tliiid person. On the deatli of M;ch
third person his heirs sued tlie shrtjff to lecover
the sum deposited, and on the 30th January, 1878,
obtained a decree, in satisfaction of which the .shroff
paid the decretal money into Court on the 1.5th
January, 1883. On the 5th February, 1884, the slu off
sued T, the heirs of the third party and another
person (who owned to having received some of the
money from T), to recover the sum he had been
compeUed to pay under the decree of 1878 : — Held,
that the plaintiff's cause of action arose at the time
when he actually paid down the money on the 15th
January, 1883, and that the suit therefore was not
barred by limitation. Torab Ali Khan v. Nil
RuiTUN Lal . . I, L. R. 13 Calc. 155
32. Express trust-
Administration suit — Executors — Suit for an account
against an execidor or his representative. R died
in 1865, leaving a will, of which his nephews
P and S were the executors. His will provided
that after payment of all debts, etc., the residue
of his property should remain in the hands of
the executors, who were " to maintain the family
in the same manner as I used to maintain the
family in my house." After the death of both
the executors, the residue was to be apportioned
among the children of his nephews in ccjual
shares. On the death of the testator, P took
possession of the estate, and died on the l(Jth
January, 1876. 6' remained passive until the 27th
August, 1884, when he totk out probate of R'a will.
On the 23rd January, 1885, he tiled the present
suit against the defendant as widow and
administratrix of P, praying for an account of the
estate of R that had come to the hands of P, and
also for an account of the estate of P. The plaintiff
contended that iJ's estate came into the hands of P
as a trustee ; that the suit was to recover the pro-
perty for the purposes of the trust, and that s. 10 of
the Limitation Act (XV of 1877) apphed. The
defendant alleged that all the moneys belonging to
jR's estate, which had come into the hands of P, had
been expended in paying if's debts, and that there
was no residue left for the purposes of the trusts

( 7215 )

DIGEST OF CASES.

( 7216 )

I.IMITATION ACT (XV OF 1811)— contd. L IMITATIONi'ACT (XV OP ISlly—contd.
Schedule 11— contd. Schedule 11— contd.

Art. 120— contd.

of the will, and she contended that the suit was
barred by limitation : — Held, that the suit was
barred by Art. 120 of Sch. II of the Limitation Act
(XV of 1877), being primarily not a suit to follow
trust property in the hands of a representative of a
trustee, but really to ascertain whether any trust
remained to be administered after the testator's
debts and funeral expenses had been paid. No
breach of trust was alleged. The suit was merely
for an account against the executor or his re-
^presentative. To such a suit s. 10 of the Limitation
Act does not apply. Shaptjrji Nowroji Pochaji
t.BHiKAiji . . I. L. R. 10 Bom. 242

33. , — Company, wind-
ing up — Liquidator — Suit by liquidator for calls —
Period of limitation applicable to suit by liquidator
for calls different from that applicable to suit by com-
pany itself. The directors of the P company made
a call of RlOO per share upon its shareholders on the
1st October 1882. On the 8th March 1886, the
company was ordered to be wound up by the Court,
and an official liquidator was appointed. On the
17th March 1886, the official liquidator filed this suit
af^ainst the defendant, who ^^'as a holder of twenty-
one shares in the company, to recover (along with
other calls) the amount of the said call of 1st Octo-
ber 1882. As to this part of the claim, the defend-
ant pleaded limitation -.—Held that the suit being
brought not by the company, but by the liquidator.
Art. 120 of the Limitation Act (XV of 1877) applied,
and that the claim was therefore not barred.
Pabell Spinning and Weaving Company v.
IkLiNEK Haji . . . I. L. R. 10 Bom. 483

34. and Arts. 48 and 60— Suit

for right to follow goods in hands of agent made
liable for converf.ion. The defendant as an agent
sold goods entrusted to him by his principal, who
died after a decree had been made against him for
their conversion, and as agent for the representa-
tive of the deceased retained the proceeds, which the
decree-holder had an equitable right to follow in the
agent's hands -.—Held, that neither Art. 48 of Sch.
II of Act IX of 1871, fixing the limitation of three
years to suits for moveable property acquired by
dishonest misappropriation or conversion, nor Art. 60
of the same Schedule, fixing the limitation of three
years to suits for " money payable by the defendant
to the plaintiff," and to suits " for money received to
the plaintiff's use," were applicable to the present
suit ; but that, as a suit for which no period of limit-
ation was provided elsewhere, it fell within Art. 118
of the same Schedule, fixing for such suits the limi-
tation of six years. Gurudas Pyne v. Ram Narain
Sahu

I. L. H. 10 Gale. 860 : L. R. 11 I. A. 59

35. and Arts. 62 and 89—

Suit against trustee for poisc^vion of share, and
for account and recovery of profits. M and S
purchased certain property jointly in 186.5, and had
equal interest in it till 1868, when 3/'s interest

Art. 120 — contd.

was reduced to one -third. S paid the entire pur
chase-money in the first instance, and incurred ex
penses in conducting suits or possession of th
property, and for registration of the deed, and ulti
mately obtained possession in 1869 orl870 and too!
the profits from that date. M did not pay any par
of the money up to 1870, and it was not till 187
that the whole of his share of it was subscribed, am
he paid little or nothing towards the expenses
Subsequently he sued S for possession of his shar
to have an account taken of the profits, and to rec ^
ver his share of them with future mesne profits at
costs -.—Held, tliat Art. 89 of Sch. II of the Limitatio
Act did not apply to the suit ; and that Art. 62 di
not meet a claim like the present, relating to a
equitable claim against a trustee liable to accoun
in which the relief sought was to have an acccur
taken of the trust property and to recover wh£
might be due. Cum Das Pyne v Ram Narain 8at<
L. B. 11 I. A. 59 : /. L. R. 10 Calc. 860, referre
to. Held, also, that Art. 120 of Sch. IT of the Limv
ation Act applied to the suit, as it was one for wliic
no period of limitation was provided elsewhere .'
the schedule. Muhammed Habieulla Khan ■
Safdar Husain Khan . I. L. R. 7 AIL 2
36. and s. 14 and Art. 127

Dismissal of former suit on substantive ground
failure to establish cause of action — Claim I
contributors to a common fund. An agreemei
was entered into between an uncle and his nephew
in 1879 that their earning should be put into
common fund which fund should be utilized f
family requirements. No provision was, howeve
made for the division of any surplus that might arii
The agreement was acted upon until 1894, by whi
time a'sum of R37,723-8-0 had accumulated. Up
a claim being made by the nephews in 1894 for
distribution of this fund the uncle denied their rig
to participate in it. The uncle who was working
partnership with others, in the same year, 189
instituted a suit against his partners for an accouj
and for his share of profits. He claimed the S8J
accumulated fund of R37,72?.-S-0 as his shaij
While his suit was ponding, namely, in Deceii
ber 1895, he assigned its subject-matter to t
present ninth defendant (a banking corporatioi
The partners in defence alleged that the prese
plaintiffs were entitled to share equally in ti
R37,723-8-0, and that they held the fund as stalj
holders. In December 1894, present plaintiffs filf
a suit against their uncle the said first defendaj
and his partners, in which they claimed shares in t|
said sum of R37,723-8-0. The two suits were trJ|
together. First defendant's suit against his paj
ners was dismissed on the ground that he h*
claimed for himself alone and'had not brought t
proper parties before the Court. In plaintiff s su
the latter were declared to be entitled to shares
the said sum as prayed. First defendant appeal
in both suits, judgment being given by the App
late Court on 19th October 1897. In the suit

( 7217 )

DIGEST OF CASES.

( 7218 )

IMITATION ACT (XV OF 1871)— contd.

Schedule II — contd.
Art. 120— contd.

lich first defendant was plaintiff, the plaint was
lowed to be amended, and a decree was passed for
e amount found due to him alone iu the settle-
3ut of accounts. In the plaintiffs' suit, the Ap-
Uate Court found that plaintiffs had no cause of
tion as against first defendant's firm ; and that
between plaintiffs and first defendant, there
•re accounts to be settled, in addition to those
lich appeared in the books of the firm. The Ap-
ilate Court further declined to treat the suit as
' for partition only, and dismissed it, intimating
ii plaintiffs could obtain relief by way of parti-
n in a suit so framed as to embrace all the parties
"crested and all the property in which they were
ierested. On 30th January 18911, plaintiffs filed
.; present suit in which they claimed that their
I ires in the said fund of R37,723-8-0 should be

< ermined and paid : —Held (affirming Boddam, J. ),
lit plaintiffs were entitled to recover ; — Held, also,
1 it the time occupied in prosecuting the former
it could not be excluded when computing the
jiodof hmitation. //e?c/, further, that the claim
AS not barred by Hmitation. The title of the
nhews was not based on contract, express or
i ilied, hut arose out of the fact that they were

< itributors to a common fund, which the Court
y^ now asked to distribute. The claim was one
^iich the Court must deal with on equitable princi-
J}5, and apart from any question or partnership or
«|contract and was consequently one to which
•f). 120 of the Limitation Act applied. Held, also,
tit the question was not one relating to joint
f.iily property within the meaning of Art. 127.
J\n Meiva Kuwar v. Enni Hulas Kuwar, 13 B. L.
hili, referred to. Commercial Bank of India

XLAvooDEEN Saiieb . I. L. R. 23 Mad. 583

7. -and Art. 62 and 132— -S'/nVs jor

•j-i-chaharain' based on custom. C, the proprie-
ty of a certain mohalla, sued K, who had purchased
ai)use situated in the mohalla at a sale in the
epution of his own decree, for one-fourth of the
pbhase-money, founding his claim

alient custom obta

upon

ainmg in the mohalla, under
»'ch the proprietor thereof received one-fourth of
t'l purchase-money of a house situated therein,
Wjtlier sold privately or in the execution of a
u'ee -.—Held, that the period of hmitation appHca-
0 ;o such a suit was that prescribed bv Art. 120,
«• II of Act XV of 1877, and not by Art. 62 or by
132 of that Schedule. Kirath Chand v.
ESH Prasad . . I. L. B. 2 All. 358

i^- and Art. 106— Suit to wivd up

ix\ner8hip. T, B, R, and IF, the owners of a
Ofinn estate in equal shares, in 1863 entered
»ia partnership for " the cultivation of tea and
otr products " upon such estate. In 1864 H, E,
Ki m^°'"^^ the firm. In 1870 H died, and in
•^!_i purchased his share and those of E and /,
al 1° ^?'^ ^^^^ of J^- In 1875 T gave the Delhi

'^jLondon Bank a mortgage, on which they after-

lilMITATION ACT (XV OF 1877)— <;on<'i.
Schedule II — contd.

Art. 120— CO'* <r/.

wards obtained a decree against him personally,
in execution of which his right and interest in the
estate were put up for sale on 20th June 1877, and
purchased by the Bank, who obtained possession
in August 1877. In August 1879, B and IF's exe-
cutor sued T and the Bank claiming a declaration
that they had been partners with T in the estate ;
that if the partnership should be held to be subsist-
ing, it might be dissolved, or that, if it had ceased
to exist, the date of its termination might be fixed,
and that in either case a liquidator might be appoint-
ed : — Held, that the period of limitation applicable
to the suit was that provided in Art. 120, and not
Art. 106, Act XV of 1S77, but that in either case
the suit was within time, as the partnership was
dissolved and consequently time began to run not
from the death of H or the purchase by T of the
shares of E and I in 1871, or of R in 1873,
but in August 1877, when the defendant Bank
took possession of the partnership property.
Harrison v. Delhi and London Bank

I. L, R. 4 All. 437

39. and Arts. 131, 14.4.— Adverse

possession — Suit for declaration of right to malihanu
and to set a<ide order refusing to register names.
Previous to 182.5, dearah X accreted to mouzah
Y, and some time before 1860 the malik of Y
executed two conveyances in favour of A and B
respectively. In I860 A sued B in the Munsif 's
Court for possession of a share in X which B claimed
under his conveyance. In that suit .1 succeeded on
the ground that 5's conveyance did not cover the
share claimed by him in X, but merely covered the
share in the mouzah itself, whereas by his convey-
ance A had acquired the right to the share in X
which, he claimed. In 1866 the Collector refused to
recognize B's right to malikana payable m respect
of the share in X which had been the subject of the
suit in 1860, or to register his name in respect there-
of, but acknowledge A 's right thereto, relying on the
decision of the Civil Court in the suit between A and
B. Subsequently fi's representatives, C and D,
tn 1866, sought to have their names registered in
respect of the same malikana, but they were opposed
by E, who alleged that .-1 had been acting through-
out as his benamidar. The Collector refeixed the
case under s. 55 of Act VII of 1876 to the Civil
Court, and the application of C and D was eventually
disallowed. C and D thereupon, on the 5th Nov-
ember 18S0, instituted the present suit against E
in the Court of the Subordinate Judge, for a declar-
ation of their right to the malikana, and for a
reversal of the order refusing to allow their names
to be registered in lespoet tliereof : — Held, that the
suit was barretl by limitation, being governed either
by Art. 120, 131 or 144 of the Limitation Act (XV
of 1877) because (i) there being no allegation of
ilispossession, if it were contended that the suit
was one for possession of an interest in immoveable
property. Art. 144 would apply ; (ii) if it were con-
tended that the suit was for the purpose of establish-

( 7219 )

DIGEST OF CASES.

( 7220 )

LIMITATION ACT (XV OP 1877)- contd.

Schedule II— contd.
Art. 120— conid.

ing a periodically recurring right, pure and simple.
Art. 131 would apply and the period must be
reckoned from 186G, when the plaintiff was first
refused the enjoyment of the right ; (iii) if, however,
it were said to be a suit to establish a periodically
recurring right and something in addition, inas-
much as the right carried with it a right to the pro-
perty itself, if the parties consented to take a
settlement when the time for concluding the next
temporary or permanent settlen ent came. Art. 120
must be held to apply. But that, in any event, in-
asmuch as in the year 1866 the Collector refused to
recognize B's right to the mahkana, and adverse
possession, so far as possession could be taken of such
an interest in immoveable property, was then taken
bj^ A, or in other words by E, because it must be
taken that the Collector since that date had been
holding for A, whose right he had then recognized,
after refusing to recognize the right claimed by B,
the present suit, having been instituted in 1880,
was equally barred, whichever of the above Articles
was held to apply. Eao Karan Singh v. Bakur Alt
Khan, L. R. 9 I. A. 99, referred to, and distin-
guished. GoPiNATH Chowdhaky V. Bhugwat
Pekshad . . . I. L. E. 10 Gale. 697

40. Suit for decla-

ration that the defendant is a mere benamidar
for the plaintiff — Suit for relief on ground of fraud —
Limitation Act {XV of 1877), Sch. II, Art. 95. A
suit brought by A to obtain a declaration that
a decree originally obtained by B against C and
another which had been purchased in the name
of D, had really been purchased by the plaintiff
for his own benefit, the cause of action alleged
being the wrongful execution of the decree by D,
is not a suit for relief on the ground of fraud
within Art. 95 of Sch. II of the Limitation Act, but
it is governed by Art. 120 of that Schedule. Under
the circumstances, the suit was held not to be
barred by limitation. GouR MonuN Gotjli v.
DiNONATH Kaemokar I. L. R. 25 Calc, 49
2 C. W. N. 76

41.

Suit on written

instrument which could not have been registered —
Limitation Act, 1859, s. 1, els. 9, 10, 16. The
period of limitation applicable under Act. XIV of
1859 to suits upon written instruments which could
not have been registered under the law in force
at the time of execution of such instruments was
six years under cl. 16 of s. 1 of the said Act.

VenkATACHALAM t'.VENKATAYYA

I. L. R. 11 Mad, 207

42. Act XIII of

1859, s. 2— Claim to recover an advance. Act XIII
of 1859 being a penal enactment, the Limitation
Act (Sch. II, Art. 120) is no bar to a claim under
s. 2 to recover an advance made to a labourer.
In re Kittu . . I. L. R. H Mad. 332

LIMITATION ACT (XV OF 1877)-^:o»W.
Schedule II— contd.

Art. 120— contd.

43.

Suit for removal

of trees. A suit by a zamindar for removal of
trees planted in certain waste land of his village
by persons who have no right to plant them i
governed by Art. 120, Sch. II of the Limitatior
Act, and not by Art. 32, Sch. II of the Act. When
use property foi

defendant having a right to

a specified purpose perverts it to other purpose;
and a suit has to be instituted for any relief
in respect of any injurious consequences arisinc
from such perversion, such a suit will be governe
by Art. 32, Sch. II of the Limitation Act. Ganga
dhar v. Zahurriya, I. L. B. 8 All. 446, distit
guished. Mushaeaf Ali v. Iftehae HrsAiN

^ I. L. E. 10 AIL 68^

44. , and Art. 10— iMahomedat.

law — Pre-cmftion— Conditional sale — Right of fre
emption among co-parceners— Private partitici
of pattidari estate. A and B had certain pro
prietary rights in an 8-anna patti of a certain meha.'
C and D had no rights in that patti, but 2> had ;
small share in the remaining 8-annas patti. Apri
vate partition between the pattis having take:
place, Cjand D's brother lent to B two sums c
E20() and 11199 by deeds of bai-bil-vvufa dated th
12th and 21st June 1876. C and D subsequent!
instituted foreclosure proceedings and on the 5t
May 1884 were put into possession of jB's share i'
the first mentioned patti in execution of a decre
which they had obtained. On the 18th .April 1885 .
sued C and D to enforce his right of pre-eroption:-
Held, that the suit was not barred bj' limitation, i
being governed by either Art. 10, Sch. II of tb
Limi"tation Act (Act XV of 1877), which gave th'
plaintiff a year from the 5th May 1884, the date o
which the mortgagee obtained possession, or b
Art. 120, under which his right to sue accrued upo
the expiry of the six months' grace allowed to tl
moitgagor after the decree for foreclosure, an
there would be six years allowed from that tim

DiGAMBAR MiSSEE V. EaJiI LaL EoY

I. L. E. 14 Calc. 7f

45, "" and Art. 91— Suit for dfdar

tion [ of title — Incidnitnl relief — Setting osn
instrument. The period of hmitation for suits
declare title is six years from the date when tli
right accrued, under the Limitation Act, 1877, ^f
II, Art. 120 ; and this period is not afiected by -Ar
91, though the effect of the declaration is to f
aside an instrument as against the plaints
Pachawuthi; v Chinnappan " '

I. L. E. 10 Mad. 21

46. Khoti Act (Bo,

Act 1 of 18S0), s. 16— Settlement— Register, pr
paration of — Entry in the register. On 28th Ap'
1888, the Survey officer, after determining tl
co-sharers in a khoti villagcprepared the settlemei
register under s. 16 of Bombay Act I of 18^
in which^ he entered the names of defendan

( 7221 )

DIGEST OF CASES.

( 7222 )

.IMITATION ACT (XV OF 1871) -contd.

Schedule ll~-co)itd.
. Art. 120— contd.

|i mortgagees of a certain share in the khotki.
I 1891 plaintiffs, who claimed to be entitled to
e said share, on becoming aware of the entry,
•titioncd the Collector for a removal of the
imes of the defendants from the register on
e ground that their mortgage had been redeemed,
lis petition was opposed on 15th October 1892 by
•fondants, who denied plaintiffs' title, and was
tally rejected by the Collector on 25th November
■92. In 1896 plaintiffs filed the present suit to
I oel the entry in the register and for a declaration
their own title : — Held, that the suit was not
ne-barred. The cause of action accrued on 15th
tober 1892, when defendants denied plaintiffs'
:le, and not on 29th April 1888, when defendants'
mes were entered in the register as mortgagees.

iVTTATRAYA GOPAL V. RaWCHANDBA ViSHNTT

I.'L. -R. 24 Bom. 533

and Art. 127 — Suit for parti -

47.

n and account of joint property. In a suit
mmenced in 1865 by a member of a joint family
• the declaration of his rights, partition not
ing claimed, the order of Her Majesty in Council
Ii79) directed that the talukhdar should cause and
; ow the villages forming the talukhdari estate and
i; proceeds thereof to be managed and apphed
I iording to the trust declared in favour of the
'mbers of the family. The pla ntiff in that suit
1 erwards obtained entry of his name as a co-sharer
i the villages in the register kept under Act XVII
(1876, s. 56, and then on 14th December 1880
I >ught the present suit for his share upon partition
I, h in that estate as it stood in 1865 and also with
t' addition of villages since acquired out of profits,
timing an account against the talukhdar : — field,
t t the suit, as one for partition and an account,
? not barred by limitation under Act XV of 1877,
■• 120, and must be decreed. Pirthi Pax v.
VAsiR Singh . I. L. B. 14 Gale. 493

li. R. 14 I. A. 37

Suit for perpetual

.8. .

mction. In a suit for a perpetual injunction
restrain the defendant from preventing the
P: ntiff from entering a certain house it was
ftjged that the defendant had been in exclusive
p| session for more than six years before suit '■ —
ki. that Limitation Act, Sch. II, Art. 120, apphed
tide suit, which was therefore barred by liraita-
t' . Kan'akasabai v. Mfttu

I. L. R. 13 Mad. 445

I'*- — ■ Suit for mutation

P)jame« t» register. A suit by a purchaser against
lij vendor to compel mutation of names in the
Kjster is not barred by limitation unless the Collec-
Mjhas refused without qualification to effect such
ni ation, negativing the plaintiff's right to the
lall m question. A merely conditional refusal does
n<; raise a cause of action. Vieasamt v. Rama Doss
I. L. R. 15 Mad. 350

LIMITATION ACT (XV OF l8n)~contd.
Schedule II — corytd.

Art. 120— contd.

50.

Suit by a rever-

sioner for a declaration of his tith to property
sold in execution of a decrrf agiinst a Hindu widow —
Cause of action. D died leaving him surviving a
widow and a daughter who was plaintiff's mother.
Defendant No. 2 obtained a decree against the
widow, and in execution put up Z)'s property
to sale. Defendants 3, 4^ and 5 purchased
the property and took possession in 1869. In
1883 the plaintiff sued as i)'s reversionary
heirs for a declaration that they were entitled
to the property in dispute on the widow's death,
alleging that the decree, in execution of which
the property was sold, was a collusive and frau-
dulent decree, and that they were not boi;nd by the
sale in execution. They further alleged that the
cause of action ar>)fe in 1ST9 Mhen their m it her
died : — Held, that the suit was barred by hmitation.
The cause of action giving any reversioner the right
to sue for a declaration was that given to the plaint-
iff's mother in 1869, both by the sale and the dis-
possession, and it was not revived n favour of the
plaintiff's on her death in 1879. All right to sue for
a declaration was therefore barred in 1875 under
Art. 120 of Sch. II of the Limitation Act (XV of
1877). Chhaganram Astikeam v. Bai Motigavei
I. L. R. 14 Bom. 512

51. Suit by nver-

sioners to set asid'- alienation by Hindu widow —
Similar suit barred by limitation as against a
prior nviTsion'T, (ffectof,on suit by subs(qu<nt
reversioner. Where there are several reversioners
entitled successively under the Hindu law to an
estate, held bj' a Hindu widow, no one such
reversioner can be held to claim through or
derive his title from another, even if that
other happens to be his father, but he derives
his title from the last full owner. If therefore the
right of the nearest reversioner for the time being to
contest an alienation or an adoption by the Hindu
widow is allowed to become barred by hmitation
as against him, this will not bar the similar rights of
the subsequent reversioners. Bmi Prasad v. Hardai
Bibi, unreporttd ; Ramphal Rai y. Tult Kuari,
1. L. R. 6 All. 116 ; Jumoona Dassya Chou-dharani
V. Bamasoondari Chowdharimi, I. L. R. 1 Gale.
2S9 : L. R. 3I.A.7> ; and/srt But Kor\. Hans-
buttiKoerain, I.L.R. lOCalc, 324: L. R. 10 I. A.
150, referred to. Chhaganram Astikram v. Bai
Motigavri, I. L. R. 11 Bo7n. oTJ. and Pirshad
Singh v. Chcdee Lall, 15 W. R. 1, dissented from.
Bhagwakta v. Stjkhi . I. L. R. 22 All. 33

52. . Suit for a de-
claration of hi irship — Accrual of the caus of action
— Denial of title. .4 sued for a declaration that
she was the daughter of B, who died in 1870.
On JS's death hi< kulkam'' vatan was attached
and C wa> appointed to officiate on behalf of Gov-
ernment. In 1892 .4 applied for a certificate of
heirship to B, with a view to get her name

( 7223 )

DIGEST OF CASES.

( 7224 )

lilMITATION ACT (XV OF 1811)— contd.

Schedule II — co7itd.
Art. 120— contd.

LIMITATION ACT (XV OF 1877)-co»/d.
Schedule II — contd.

entered as a vatandar in place of her deceased
father's. C opposed her application denying that
she was the daughter and heiress of B. Her appli-
cation being rejected, A filed the present suit
against C in 1877, to obtain a declaration that
she was the daughter and heiress of B. The Court
of first instance granted the declaration sought.
The Appellate Court rejected the claim as barred
under Art. 120 of the Limitation Act (XV of 1877)
holding that time should be computed from the
date of B's death. H<ld, that ^'s cause of action
accrued not on B's death, but on the denial of her
status by C in the certificate proceedings. The suit
having been brought within six years from that
time was not barred under Art. 120 of the Li'iiita-
tion Act. TuKABAi v. Vina yak Krishna Kulkarxi
I. L. R. 15 Bom. 422

53.

Suit by a decree-

holder against the -sons of a decea.sed judgment debtor
whose property had passed to them. A decree was
passed against a Hindu for money dishonestly
re' ained by him from the plaintiff's family to which
he was accountable in respect of it. The judgment-
debtor having died, the decree-holder sought to
attach in execution property of the familywhich had
passed int > the hands of hi^ sons by survivorship.
The sons objected that such property was not liable
to attachment, and the decree-holder was referred
to a regular suit. He now brought a suit against
the son : — Held, that the suit was governed by Art.
120 of the Limitation Act, and that time began to
run for the purposes of limitation from the death of
the father. Natasayyan v. Ponnusammi

I. L. R. 16 Mad. 99

54. Suit by the

purchaser in execution-sale to recover the purchase
money. The plaintiff purchased land sold in
execution of a decree in favour of the defend-
ant, but was subsequently evicted bv the son of the
judgn-.e it debt )r. He n w sued in 1889 to recover
the purchase-money paid by him on ground
that the judgment-debtor possessed no saleable
interest in the property in question. It appeared
that ii 1888 the son tf the judgment-debtor
had obtained a decree against the plaintiff and
others declaring that she (the judgment-debtor)
had no saleable interest in the property : — Held,
that Limitation Act, Sch. II, Art. 120, contained
the rule of limitation applicable to the suit, which
was accordingly not time-barred, since the cause
of action did not arise until 1888. Nilakanta ?;.
Imamsahib . I. L. R. 16 Mad. 361

55. Right of suit —

Continuing right — Suit for construction of will —
Suit for declaratiry decree. In a suit by rever-
sioners after the death of the widow of a
testator for the construction of his will and
codicil, and for a declaration of the plaintiff's
rights : — Held, that the suit was not barred by lapse
of time. A suit for declaratory relief of such a

Art. 120— contd.

nature cannot be held to be barred so long as th
right to the property in respect of which th
declaration is sought is a subsisting right, an
the plaintiff has a subsisting right as reversionei
so long as the widow was alive. The right to brir
such a suit is a continuing right therefore, and ma
be claimed within the statutory period from tb
time when the plaintiffs become entitled to tl
consequential relief. The present suit, having be«
brought within six years from the death of t'
widow, was within time. Chukkun Lal Roy
LoLiT Mohan Roy . I. L. R. 20 Calc. 90'

56.

and s. 10 and Art.

Act XI of lS-i9, s. 3] — Suit to recover surpl
■-ale-proceeds of a sale for arrears of Governme
revenue. In a suit brought for the residue of tl
sale-proceeds of an estate sold under the provisio
of Act XI of 1859 against the Secretary of State f
India in Council, the defence was raised that t|
suit was barred under Art. 62 of Sch. II of the Lim)i
ation Act (XV of 1877) -.—Held, by the Full Bene'
that Art. 62, Sch. II of the Limitation Act did n
apply, and that the case was governed by Art. li
Held, by Pigot, J., that the sale-proceeds becai
vested in the defendant in trust for a specific purpc
within the meaning of s. 10 of the Limitation A
and that therefore the L mitation Act had ■
operation in the case ; but that, assuming that t
Limitation Act was applicable, the case was govei
ed by Art. 120. Secretary at State for India v. jF '
Ali, I. L. R. 18 Calc. 234, overruled. Secreta
OF State for India v. Guru Prashad Bin
Abdul Bari i'. Secretary' of State for Ind
Secretary of State for India v. Rambull
Das Chowdhary . . 1. L. R, 20 Calc.

See Secretary of State for India i: Fazal A
I. L. R. 18 Calc. 2 :

57. and s. 10, Arts. 124 ai

144 — Suit by a uralan against an agent ofi
devasom — Repudiation of agency. In 1873 a p|-
decessor of the plaintiff claiming to be the urot^
of a devasom brought a suit in a District Muns
Court against the present defendant, whom
alleged to be an agent of the deva-om, and
defendant disputed the uraiina right of the plain
and denied that he had been appointed agent
alleged- Issues as to both of these matters w
decided in favour of the defendant, and the suit \-
dismissed in 1874. A suit was now broughtfl
1890 for declaration of the plamtiff's title as Mfa»
and to recover from the defendant as such ag
property of a value which exceeded the pecum
limits of the jurisdiction of a District Munsif.
suit being therefore instituted in the Subordii
Judge's Court : — Held, that the suit was barreii
limitation. Sankaran v. Kirshna

I. L. R. 16 Mad, 4

58. and s. 23 and Arts. 34, 3

— Suit for restitidion of conjugal rights. 1'

( 7225 )

DIGEST OF CASES.

( 7226 )

IMITATION ACT (XV OF 1877)— cw/J.
Schedule II — contd.

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— cothtd.

Art. 120— cmtd.

lot necessary, as a condition precedent to a suit for
'le restitution of conjugal rights or for the recovery
,f a mfe who has deserted her husband, the parties
icing Hindus, that there should be any demand
V the plaintiff and refusal by the defendant. The
revisions of Arts. 34 and 35 of Sch. II of the Limit-
ition Act cannot be taken as applicable to suits of
ihis description. To hold that they d'd apply
;ould be to introduce serious innovations into the
•Tsonal law of the Hindus (and of the Mahomedans)
rich could not have been contemplated by a
atute of the nature and scope of the Limitation
ct. The Limitation applicable to suits of the
resent nature is that of Art. 120 of Sch. II read
ith s. 23 of the Limitation Act. Binda v. Kaotc-
r.iv ... I. L. R. 13 AIL 126

59.

Suit for nullity of

irsi marriage. A suit bj' a Parsi girl for a declara-
on of nullity of marriage was held to be governed
r Art. 120 of the Limitation Act, and being brought
i'thin three years of her attaining majority, it was
It barred. Bai Spunibai v. Kharsedji Nasar-
'NJi Ma-salavala . I. L. R. 22 Bom. 430

60. and Arts. 49 and 123— Suit

' Mahomedan widow to have declared her right

\ local custom to life-interest in estate of

'r husband — Suit for distributive share of pro-

\rty — Suit for moveable property wrongly taken.

-j» a suit by a Mahomedan widow against the

ptherof her deceased husband to have declared her

irht to possess for Ufe the estate of the latter in

■pordance with a proved local custom. Art. 120,

jh.II, Limitation Act (XV of 1877), was held

plicable, it not being a suit for a distributive share

j property within the meaning of Art. 123 of the

jme ; nor a suit for specific moveables wrongly

[ken within the meaning of Art. 40, and no other

tide of Sch. II being applicable. jMahomed

ASAT Ali V. Hasin Banu I. L. R. 21 Calc. 157

L. R. 20 I. A. 155

Jl« ■ ; — Suit to recover

m the widow of a deceased Mahomednn money
lized by her on account of a debt due to the deceased.
Id, that a suit brought by the other heirs to
over from the widow of a deceased IMahomedan a
n of money said to have been realized by her on
*ount of a mortgage debt due to her deceased
Mband was a suit to which the limitation applica-
was that prescribed by Art. 120 of the second
ledule to the Indian Limitation Act, 1877.
i homed Riasal Ali v. Hasin Banu, I. L. R. 21
( c. 157 ; Sithamma v. Narayana, I. L. R. 12
if- ^7 ; and Kundun Lai v. Bansidhar, I. L. R.
^'.M. 170, referred to. Um.\rdaraz Ali Khan v.
>t.AVAT Ali Khax . . I. L. R 19 All. 169

^- and Art. Q2—Suit by purchaser

iecree to recover money of deceased judgment-
'or in the haitds of his agent. One .4 P,
ing certain moneys lying at his credit in

Art. 120— contd.

Calcutta, empowered .4 L to receive the same and
hold them on his behalf. .4 P died at Moradabad,.
and subsequently to his death the said moneys,
which remained in the hands of A L, were attached
by one of the creditors of ^1 P in execution of a
decree. The decree-holder sold his rights under the
decree in respect of the moneys in the hands of .4 L
to the plaintiffs, who sued to obtain the same from
A L : — Held, that the period of limitation applicable
to such a suit was that prescribed by Art. 120 of
Sch. II of the Limitation Act (XV of 1877). Guru
Das Pyne v. Ram Narain Sahu, /. L. R. 10 Calc.
862, referred to. Chaxd Mal v. Axoax Lal

I. L. R. 13 All. 368

63. - — ---^ and Art. Q2— Money received

for plaintiff's use — Suit for tchich no period
prescribed— Transfer of Property Act (IV of 1882),
s. 135. A obtained a money-decree against B and
attached certain land in execution. C intervened
in execution successfully. A then brought a suit
to establish that the land was liable to be sold in
execution, and obtained a decree. Meanwhile
the land was taken up by Government under the
Land Acquisition Act, and the compensation-
money was paid to C. A attached this sum as a
debt due to B and sold it in execution and it
was purchased by the plaintiff. The plaintiff
now sued C to recover the amount of the debt. :—
Held, that the suit was governed by Limitation Act,
Sch. II, Art, 120, and not by Art. 62 and that the
plaintiff was entitled to recover without regard to
the terms of Transfer of Property Act, s. 13.5.
KrishhTan v. Perachax . I. L. R". 15 Mad. 382

64. and Art. Ql— Suit for declara-
tion of right by setting aside kanom mortgage.
The reversionary heirs to a stanom in Malabar
sued in 1889 for a declaration that a kanom exe-
cuted in 1881 by the first defendant, the present
holder of the stanom, in favour of the second
defendant, was not binding on them or on the
stanom : — Held, that the suit was barred under
Limitation Act, 1877, 8ch. II, Art. 120. PrRAKEX
r. Parvati . . I. L. R, 16 Mad. 138

65.

and Art. llO—Suit to

customary dues payable on account of a chattram
— Suit for rent. In a .suit by the District
Board in charge of a chattram to recover a certain
sum as the arrears of various merais, being custom-
ary dues payable by the defendants for the benefit
of the chattram on account of lands held by them,
the defendants among other defences relied upon a
plea of hmitation : — Held, that the suit was gov-
erned by Limitation Act, Sch. II, Art. 120, and not
by Art. 1 10 as a suit for rent, Vekkatavaraga r.
District Board of Taxjore

I li. R. 16 Mad. 305
66. and s. 131— Periodically recur-
ring right — Denial of right. In a suit brought in
1889 by a landholder against the Secretary of State

( 7227 )

DIGEST OF CASES.

( 7228 )

XiIMITATION ACT (XV OP l8n)-^onld.
Schedule II — cantd.

Art. 120 — contd.

■for a declaration of his right against Government
to have certain remissions made in the sum
to which he was annually assessed, no consequential
relief was sought, and it appeared that the plain-
tiff's claim for the remission had been made in 1878
and had been refused by Government : — Held, that
Limitation Act, 1877, Sch. II, Art. 120, and not
Art. 131, applied to the case, and the suit was
barred by limitation. Balakrishna v. Secretary
OF State for India . I. L. R. 16 Mad. 294

LIMITATION ACT (XV OF 1671 )~i:o>Ud.
Schedule II — contd.

Art. 120— contd.

67.

and Art. 144 — Emoluments of

hereditary office — IntereM in immoveable property.
A suit to recover a sum of money due by custom
as an emolument of an hereditary office is not one
for the possession of an interest in immoveable
property. In 1888 a sum of money became pay-
able, as marriage dues, to the holder of certain
offices connected with a temple. Upon a suit being
brought more than six years thereafter, namely in
1895, to recover the amount, it was objected that
the claim was barred by limitation : — Held, that
such a claim is governed by Art. 120 of Sch. II to
the Limitation Act, and must, in consequence,
be enforced within six years of the accrual of
the right. Rathna Mtjdalliar v. Tiruvenkata
Chariar . . . I. L. R. 22 Mad. 351
Liability of son

for father's debts — Suit for money against sons of a
deceased judgment-debtor — Decree for money against
father to be discharged by instalments — Previous
execution proceedings — Form of decree. A personal
decree on a mortgage was passed against a Hindu
(the mortgagor) and his two sons on the 19th Octo-
ber 1877. The decree provided for payment of the
secured debt in various instalments by May 1895.
The mortgagor died m 1883, having discharged part
of the debt. The decree-holder having attached
certain family property in execution, the mortga-
gor's two younger sons, who had not been born at
the date of the above decree, objected that their
shares were not liable to attachment. This objec-
tion prevailed, the Court expressing the opinion
that the matter in controversy should be determined
in a regular suit. The other defendants in the suit
of 1877 had both died in the interval, one of them
leaving infant sons. The decree-holder (in whose
sole name the mortgage stood) now sued the sons
of the mortgagor and their infant nephews in 1891
for the payment out of the family property of all
the unpaid instalments: — Held, that the period of
limitation applicable to the suit was six years, and
that time began to run for the purposes of limita-
tion from the date when each instalment would
have become due from the deceased judgment-
debtor ; and that the plaintiff was entitled to a
decree for payment out of the family property of
all such instalments as would have so become due at
the date of the suit, and for a declaration only as to
the subsequent instalments. Ramayya v. Venka-
taeatnam . . . I. L. R. 17 Mad. 122

"9- Suit to set aside

an instrument — Suit for maintenance of possession in
joint family property — Limitatiort Act, 1877, Sch. II.
Art. 91. The plaintiff sued for maintenance of pos
session in certain joint family property by cancel-
ment, so far as his interest was concerned, of a
certain deed of sale by which another co-parcener
in the same property had purported to convey the
whole to a stranger : — Held, that the hmitation ap
plicable to such a suit was that prescribed by Art
120 of Sch. II of the Limitation Act, 1877, and nc
that prescribed by Art. 91. Sobha Pandey v.
Sahodra Bibi, I. L. R. 5 All. 322, referred to.
Janhi Kunwar v. A jit Singh, I. L. R. 15 Cede
oS, distinguished. Din Dial v. Har Narain

I. li. R. 16 All. Ti

70. and Arts. 91, 95~Suit h
auction-purchaser of mortgaged property to cance
a perpetual lease granted by the mortgagor ii
contravention of a covenant in the mortgage
During the continuance of a mortgage which con
tained a covenant against alienation of the mort
gaged property, the mortgagor made a perpetua
lease of that property. The mortgagee brought ;
suit on his mortgage, and, having obtained a decree
put the mortgaged property up to sale. The auc
tion-purchaser of the mortgaged property, on be
commg aware of the existence of the perpetua
lease, sued for its cancellation and for a deolara
tion that the defendant had no right to interfer
with, or obstruct the plaintiff in respect of, the pro
perty in question -.—Held, that the limitation applic
able to such suit was that prescribed by Art. 120 o
the second Schedule to the Indian Limitation Act
1877, and not that prescribed by Art. 91 or Art. 9'
The main prayer of the plaint was for a decre
declaring and establishing the plaintiff's titif
and the prayer for cancellation of the lease could b
treated as merely subsidiary to the main relief askcc
Pachamuthu v. Ghinnappan, I. L. R. 10 Mad. 21
and Uma Shankar v. Kalha Prasad, I. L. E.
All. 75, referred to. Din Dial v. Har Nam.
I. L. R. 16 All. 73, followed. Mtthammad Baq ■.
V. IVIango Lal . , . I. L. R. 22 All. 9'

71. Suit to set as,'

invalid trust — Conveyance to trustees. Under Ai
120, Sch. II of the Limitation Act (XV of 1877
the right to recover property settled on invali
trusts accrues directly the property is conveyed t
the trustees. Cowasji Nowroji Pocblkhanawau
V. Rustomji Dossabhoy Setna

I. Ii. R. 20 Bom. 51

72. Exclusive, ocn

pation of joint lands by some of the co-owners, — Su
by the ot'icr io'nt t'nint<for ro'np/n^'ition. Son
of the joint tenants of certain lands took the u-
and occupation of part of the joint lands to tl
exclusion of the other joint tenants, who afterwan
brought a suit for compensation for such use an
occupation : — Held, that the period of limitatm

( 7229 )

DIGEST OF CASES.

( 7230 )

[MITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
, Art. 120 — contd.

Tsuch a suit was governed hy Art. 120 of the
; nitation Act, and that therefore the plaintiffs

re entitled to recover compensation for six years.

iTSON & Co. V. Ram Chand Dutt

I. L. R. 23 Cale. 799

I '3. -Suit to recover

I'-i-chaharum — Suit for money had and received —
Jnitation Act, Art. 62. Held that the limitation
i )licable to a suit by a zamindar to recover haq-
i ,aharum, alleged to be payable to him by custom
c .'iesale of a house, was that prescribed by Art.
] I of the second Schedule of the Indian Limitation
.i), 1877, and not that prescribed by Art. 62.
lath Chand v. Ganesh Prasad, I. L. R. 2 All.
i , approved. Nanku v. Board of Revenue for the
.? W. P., I. L. E. 1 All. 444, referred to. Paghu
Uh Prasad v. Girdhari Das, All. Weekly Notes
( 93) 65, dissented from. Sham Chand v.
liaADUE Upadhia . . I. L. R. 18 All. 430

'4.

Decree for rent

ainst tenants jointly — Execution against one dr

I'lant — Suit by him for contribution — Limitation

:A\. Arts. 61 and 99. The holder of a zammdari

V ige obtained a decree jointly against sixty-eight

p ions, including the present plaintiff and defend-

a: i, for R4,001, being rent accrued due on lands

iihe village, and in execution he brought to sale

poerty of the plamtiff, and on the 28th October

i^ i he received, out of the sale-proceeds, K 2,650.

T share payable by the plamtiff was R183-I0-10

01 •, and he instituted the present suit against the

a' ndants on the 28th October 1892 to recover the

a! unts which they were liable to contribute : —

ii '.■ that Limitation Act, Sch. II, Art. 99, did not

g(/ni the case, and that, whether Art. 01 or Art.

i- was applicable, the suit was not barred by

iiii.ation. Pattabhiramayya Naidu v. Ramayya

'^ • . . I. L. R. 20 Mad. 23

I' S^lit to set aside

n execution of certificate under Public Demands

■>ery Act (Beng. Act VII of rSSO) a7id in which no

» y}as served and in which all proceedings were

• 1. Ilekl, that a suit to set aside a sale in

a of a certificate under the Public Demands

I y Act, in which no notice was served and the

■••'Imgs consequently invalided, is governed by

120. Sch II of the Limitation Act, and Art.

IS no apphcation to such a case ; nor has sub-s.

of Bengal Act VII of 1880 any application

Saroda Charan Bandopadhaya v. Kista

Ts Bhattacharjee . 1 C. W, U". 516

Iln

• ~r~~T~ Damages.

r Art. 120 of Sch. II to the Limitation Act,

■^ for more than six years previous to the

n of the suit cannot be awarded. Joge-

•CAQAT V. Ghanasham Dass (1901)

5. C. W. N. 356

., i7^^'^Z~7T~rr~r Limitation Act

3/ m^), Sch. II, Arts. 120, 127—Makomedan

LIMITATION" ACT (XV OF 1877)— contd.
Schedule II— contd.

Art. 120— contd.

family — Suit to recover share in joint- family pro-
perty. Where, on the death of a Mahomedan, the
plaintiff, his daughter, claimed her share by inheri-
ance in properties alleged to be the properties of the
joint family of the plaintiff and her brothers, and it
was found that she had ceased to be a member of the
family since her marriage : — Held, that Art. 120,
and not Art. 127, of Sch. II to the Limitation
Act applied. Buvasha v. Masummasha. I. L. R. 14
Bom. 70, dissented fiom. MuUakke v. Thiimnappa,
I. L. R. 15 Mad. 1S6 ; Amme Ralmm v. Zia Ahmed,
I. L. R. 1.3 All. 2S2 ; Mahomed Akram Saha v.
Anarbi Choudhrani, I. L. R. 22 Calc. 954 ; and
Kartick Chunder Ghuttuxk v. Saroda Sundari Debi,
I. L. R. IS Calc. 642, approved. Poyran Bibi v.
Lakhtj Khan Bepari (1901) . 7 C. W. N". 155

78.

Hindu Law —

Joint Hindu family — Liability of sons to pay their
father's debts — Limitation. The father of a joint
Hmdu famDy executed on the 23rd June, 1888,
a simple money bond, payable on the 18th June,
1894. The money not being paid on due date
the creditor sued the father alone, and obtamed a
decree against him on the 17th June, 1897. The
father died in 1899, and after his death the creditor
attached certain joint family property in the hands
of the sons. The sons objected to the attachment
and their objection was allowed. Thereupon the
creditor, on the 22nd January, 1900, filed a suit
against the sons, claiming payment from them
of the father's debt :—//fW, (i) that the liability
of the sons,to pay their father's debt accnied on the
18th June, 1894, the date when the bond became
payable ; and (ii) that the suit was one to which
Art. 120 of the second Schedule to the Indian
Limitation Act, 1877, applied, and was therefore not
barred by limitation. Badri Prasad v. Madan
Lai, I. L. R. 15 All. 75, followed. Mallesam
Naidu V. Jugala Panda, I. L. R. 2-3 Mad. 292,
and Natisayiiun v. Ponnusami, I. L. R 16 Mud.
99, referred to. The latter case dissented from as
regards the terminus a quo of the period of limita-
tion. Narsingh Misra v. Lalji Misra ( 1901 )

I. L. R. 23 AIL 206

79. — Alienation by

widow — Si(bsequent suit to set it aside — Witlidrawal

of ■■'nit vithod i,er)ni-<^ion to bring n fre^h <<uit

Confirmation of original alienation — Fresh cause of
action to sons of the daughters. V, who was posses-
sed of lands, died in 1868, leaving a widow and three
daughters surviving him. In 1874, the widow
ali(inated the land. In 1892, the daughters sued to
have that alienation set aside, but withdrew the suit
on the ground that the alienation was valid. Without-
obtaining leave to ^ue agaia. In 1895, the
daughters' sons instituted the present suit for a
declaration that neither the original alienation nor
its confirmation by the withdrawal petition in the
suit should be effective as against them. On the
plea of limitation being raised -.-Held, that the with-

( 7231 )

DIGEST OF CASES.

( 7232 )

LIMITATION ACT (XV OP 1877)— cowtd.
Schedule II — contd.

Art. 120— contd.

drawal of the suit of 1892 on the ground that the
alienation was valid, without permission to bring a
fresh suit, was a confirmation of the alienation of
1874, and gave a fresh cause of action, and that the
suit was not barred. Mullapudi Ratnam v.

MULLAPTTDI RaMAYYA (1902)

I. L. B. 25 Mad. 731

80.

Suit for declara-

tion of title — Cause of action — Limitation. The
plaintitfs sued in 1904 asking for a declaration that
they were entitled to certain property mentioned
in the plamt. Their cause of action was that the
name of the defendant had in the year 1895 been
entered in the revenue papers in respect of the
property in suit : — Held, that the suit was barred by
limitation, and that the fact that the defendant
had in 1903 resisted the plaintiffs in an attempt to
obtain correction of the khewat did not give the
plaintiffs a fresh cause of action. Legge v. Ram
Baran Singh, I. L. R. 20 All. 35, followed. Illahi
Bakhsh V. Harnam Singh, All. Weekly Notes 1895
215, distinguished. Akbar Khan v. Tueaban
(190S) . . . . I. li. B. 31 All. 9

81. — A suit to re-
cover compensation for land acquired, instituted
on the refusal of the Collector to award compensa-
tion under the Land Acquisition Act, is governed
by Art. 120, Sch. II of the Limitation Act. The
right to sue accruing either from the date of the
acquisition or the refusal by the Collector to award
compensation. Rameswar Singh v. Secretary
OP State fob India (1907) I. L. R. 34 Cale. 470

82. Limitation — Suit

against representative of deceased pleader to
recover money received by the pleader in his profession-
al capacity on behalf of a client. Held, that a suit to
recover from the son of a deceased pleader, as re-
presentative of his father, money which had been
received by the pleader in his professional capacity
on behalf of a client, was governed, as regards
limitation, by Art. 120 of the second Schedule to
the Indian 'Limitation Act, 1877. Bindraban
Behari v. Jamuna Kxjnwak (1902)

I. L. R. 25 All. 55

83.

Limitation— In-

junction— ^nit for injunction to restrain interference
with plaintiffs rights under a covenant in a lease
given by him. The plaintiff lessor sued for an
injunction restraining the defendant's lessees from
interfering with the plaintiff's right reserved by
the lease, to enter upon the land demised and cut
and take away certain trees: — Held, that such a
suit was governed as to limitation by Art. 120 of the
second Schedule to the Indian Limitation Act, 1877.
Kanakasabai v. Muttu, I. L. R. 13 Mad. 445,
followed. Waziran v. Babu Lal (1904)

I. Ii. B. 26 All. 391

LIMITATION ACT (XV OF 1877)— co»«c

Schedule II — contd.
. Art. 120— contd.

karta to recover possession of a temple and of
properties belonging to it — Claim based on prescr
lion, and not on hereditary right — Right to the p
perties secondary to, and dependent on, the right to ;
office. Plaintiff, who was found to have been i
adverse possession of a temple and its proper! i
for at least six years (after which he was disposs.
sed by certain magisterial proceedings), sued »•
recover possessions, as Dharmakarta, basing i
claim on prescription and not on an hereditary t i.
On the defence being raised that plaintiff's pos •
sion had been adverse for a period less than twe^
years, and that, in consequence, his title was t
complete under Art. 144 of Sch. II to the Limit.ati
Act : Held, that the suit for the possession of &
office was governed by Art. 120, and that plain;,,
by his adverse possession of more than six ye:i,
had obtained a title to it by prescription. Jaji
Nath Das v. Birbhadra Das, I. L. R. 19 Calc. r,
followed. Held, also, that the suit was not for p-
session of immoveable property, within the inei-
ing of Art. 144, the right to the land being cy
secondary to, and dependent on, the right, to e
office. Tammirazu Ramazogi v. Pantina Nars'.,
6 Mad. H. C. 301, followed. Kidambi Rag. a
Chariah v. Tirumalai Asari Nallur Rji-
vachaeiar (1902) . . I. L. R. 26 Mad. *

85.

Assessme'~

84.

Limitation Act

{XV of 1S77), Sch. II, Art. 120— Suit by Dharma-

Land-revenue — Suit for arrears of assessn.t.
The term " rent " is used in the Land-revenue (le
(Bombay Act V of 1879) only with reference.o
those superior and inferior holders between wm
the relationship of landlord and tenant subss.
Plaintiff was the inamdar of a certain ville.
Defendant held certain lands in the said vi.'^e
but he was not placed in possession thereof, ei^r
by the plaintiff or his predecessor in title, under iv
agreement. Plaintiff sued to recover from
defendant five years' arrears of assessment,
fendant contended that plaintiff was not on'
to claim arrears for more than three years :-
that the suit was governed bv Art. 120 and w
110 of the Limitation Act (XV of 1877), tlv
tionship between the parties being that of su]
and inferior holder, and not that of landlord
tenant. Sadashiv i'. Ramkrishna (1901)

I. Ij. R. 25 Bom.

86. ^ Hindu lair

by presumptive reversionary heirs for decree dc
alienations by Hindu widow not binding exo
life interest — Maintainability. Assuming fli
presumptive reversionary heir may be given
cree declaring that he is entitled to succeed, <
death of a widow, to property alleged to forr;
of her husband's estate, which property is i
possession of persons who claim it as their
adversely to the widow, the suit praying for S|l "■
declaration must be brought within the Jjo
prescribed by Art. 120 of Sch. II to the Limit "^i*

( 7233 )

DIGEST OF CASES.

( 7234 )

IMITATION ACT (XV OP 1877)— contd.

Schedule II — contd.
Art. 120— condd.

ct. Art. 125 does not apply to such a suit.
AMASWAMi Naik V. Thayammai. (1902)

I. L. R. 26 Mad. 488

— Arts. 120, 142—
See Suit . . I. L. R. 31 Calc. 617

Art. 121 (1871, Art. 119 ; 1859, s. 7)
See Revenue Sale Law.

12 C. W. N,

Sale for arrears of

\L.—

itt of patni ienvre. Upon the sale of a patni talukh
r arrears of the landlord's rent, the purchaser
quires it free of all inciimbrances created by the
tgoing patnidar ; and according to Act XIV of
,69, s. 7, the purchaser's cause of action arises
Dm the date of sale. Bkojo Sookdur Mittee v.
JTICK Chunder Roy . . 17 W. R. 407

'5. — Encroachment by

I trespasser — Incumbrance — Adverse possession —
irchaser at sale of talukh for arrears of rent. Ad-
^ se possession is an incumbrance within the mean-
■V of Art. 121, Sch. II of the Limitation Act (XV of
1'7). Luklimeer Khan v. Collector of Rajshaye, S.
i\A. (1851), 116 ; Womesh Chunder Goopto v. Raj
i.rain Roy, 10 W. R. 15 ; Khaino Moni Dassi v.
il'oy Chand Mahatab, I. L. R. 19 Calc. 7S7 ;
irmi Khan v. Brojo Nath Dass, I. L. R. 22
(|'c. 244, referred to. An auction- purchaser of a
I^ni talukh in its entirety gets the talukh free of all
i.umbranccs, therefore in a suit brought by the
«'tion-purchaser to recover possession of land
f|iated within the talukli against a trespasser who
vji alleged to have held the disputed land ad-
^-sely, the period of limitation would begin to run
f m the date when the sale becomes final and con-
ave. NuFEER Chakdra Pal Chowdhry v.
IjiBNDBA Lal Goswami I. L. R. 25 Calc. 167

^ Act IX of 1S71,

120— Suit to cancel under-temircs — "'Avoid."

1 interpretation which should be put on the
*^id "avoid " in Sch. H, Arts. 119, 120, of Act IX
0:871, is to do something in exercise of the right
o)ivoidance. Unkoda Churn Biswas v. Mothura
J> H Doss Biswas . . I. L. R. 4 Calc. 860
4 C. L. R. 6

Art. 122 (1871, art. 121 ; 1859, s. 1,
il) —

See Insolvency . 9 C. W. N.' 952

7— — ; — Ejechtion of decree

■"urdars heir who is not a Sirdar— >^vit on
-Decree payable by instfdmcnt^. The plantifE's
- /r obtained a decree in the Court of the Agent
joMrdarsin 1848 against the defendant's grand-
»* jT, a third class Sirdar. The decree gave an
Tl'k ^ ^'^^^^ *° P^>' "P tlie debt at once, or
i^-\ Dy year, out of the revenues of a village. The
^"ir chose the latter alternative, and execution
VOL. III.

LIMITATION ACT (XV OF 1877)— confi.

Schedule II — contd.
Art. 12^— contd.

proceeded accordingly on that footing till his death
in 1862. His son survived him and died in 1867»
when the defendant, who was not himself a Sirdar,,
succeeded. The Subordinate Judge of Khed— to
whom, on the cessation of the Sirdarship in the de-
fendant's family, the Agent referred the decree for
further execution — proceeded with the executioa
up to the year 1876, when these proceedings were
pronounced to be irregular. The plaintiff thereupon
in the year 1877, tiled the present suit on the
strength of his decree of 1848:— Z^eW, that the
period of limitation applicable was that of twelve
years from the date of the decree (Act IX of 1871»
Sch. II, Art. 121), but that the decree should be
viewed as analogous to an instalment decree and
made as against the defendant in 1867, — down to
which time the proceeds were regularly realized, —
because it then, on liis father's death, became first
operative against him. In the case of a decree
payable by instalments, as the command of the
Judge prescribes a term for the performance of the
several parts of his order, it is to be construed as
becoming a judgment for purposes of hmitation as
to each instalment only on the day when payment
is to be made. Sakharam Dikshit v. Ganesh
Sathe . . . I. Ij. R. 3 Bom.193

Suit on ban

judgment debt — Suit for administration — Mortgage
decree — Transfer to High pourt for execution —
Applicaion for execution by sale — Civil Procedure
Code 1882, ss. 227, 230, and 244— Transfer of Pro-
perty Act {IV of 1882), ss. 67, 89, and 99— Limit-
ation Act (XV of 1877), Sch. II, Arts. 179 and 180.
On the 29th September 1882, a decree was obtained
against the defendant's husband in a suit on a
mortgage by the fatter dated the 6th April ISSO.
On the 27th July 1883, anorder wasmade fortrans-
fer of the decree to the High Court for execution.
On the 8th April 1886, the mortgagee ajiplied to the
High Court for execution, by attachment of the
mortgaged properties, and in the same 3-ear an order
for attachment was made. The mortgagee died in
April 1892, and on the 20th August 1894 the plaint-
iff (his widow and administratrix) applied to the
High Court for an order absolute for sale of the
mortgaged properties under s. 89 of the Transfer of
Property Act. On the 5th January 1 895, the a pplica-
ti( n wasrefu.-ed onthe ground that the mortgaged
properties were out.sitle the territorial juri.sdiction of
tlie High Court. The plaintiff then instituted the
present suit in which .-he sought, intrr alia, adminis-
tration of the estate of the mortgagor (who had died
before the mortgage suit was tiled), and asked for
the sale of such proi)erties as might be found subject
to such mortgage : — Held (affirming the decision of
Sale, J.), that, whether the plaintiff sued on the
original debt or on tlie decree of the 29th September
1882, the suit was barred by limitation. Held, also,
that, even apart from any question of limitation, the
suit was not maintainable by reason of the pro%"iaion§
of ss. 230 and 244 of the Civil Procedure Code, the

10 X

( 7235 )

DIGEST OF CASES.

( 7236 )

LIMITATION ACT, (XV of 1877)— contd.

Schedule II — contd.
Art. 122— condd.

questions arising in the suit being such as should
have been determined in execution of the decree,
and not by a separate suit. Jogejiaya Dassi v.
Thackomoni Dassi . I. L. R. 24 Calc. 473

Art. 123 (1871, Art. 122 ; 1859, s. 1,

el. U)-
1.

Suit under will for

sum as legacy. Wiiere a sum assigned to sons was,
by the terms of the will, to be regarded as a
legacy, and not as a charge on the estate for their
maintenance: — Held, that cl. 11, s. 1, Act XIV of
1859, was the limitation applicable to suits under
the will for recovery of the sum due as a
legacy. Nana Narain Rao v. Rama Nund

2 Agra 171

2. ■ Siiit for legacy.

R by his will gave the whole of his property to
his brothers, making a specific provision of
114,000 for one of his daughters (the mother of
the plaintiffs), which was to remain as amount
in the family treasury, yielding her interest
if and till she gave birth to a male cliild, when
she should also have 200 bighas of land. Shortly
after tWs, the testator died and the elder of
the plaintiffs was born. The mother having
since died without drawing the principal or taken
the allotment of land, and the manager of the
family estate having refused to give the plaintiffs
their due, they sued to recover what was left to
their mother : — Held, that this was a suit for legacy,
and that cl. 11, s. 1, applied so far as the claim for
money was concerned ; and that the cause of action
to the plaintiffs occurred at the time of the birth of
the elder plaintiff, when his mother became imme-
diately entitled to the principal sum of money and
to the land. Prossono Chttnder Roy Chowdry
V. Gyan Chtjxdeb Bose . . 13 W. R. 354

3. — Will— Suit for

share of testator's moveable property. Art. 122
of Act IX of 1871 appUes to a suit for a share
of the residue of a testator's moveable property
disposed of by liis will. Teeepoorasoondery
DossEE V. Debendronath Tagore

I. L. R. 2 Calc. 45

*• Suit for legacy

against representative of testator. Art. 123 of the
Limitation Act only applies to casesiu which the
property sought to be recovered is not only a
legacy, but is also sought to be recovered as such
from a person who is bound by law to pay such
legacy, either because he is the executor of the
will or otherwise represent the estate of the
testator. Isstjr Chunder Doss v. Juggtj Chun-
DER Shaha I. li. R. 9 Calc. 79

and Art. 120— Executor de

tort— Suit for a share of Government promissory
notes by an heir against one falsely professing to hold
them under a will. Suit in 1887 by a daughter

LIMITATION ACT (XV OP 1877)-confc
Schedule II — contd.

Art. 123— contd.

to recover her share of Government prorr
sory notes being stridhanam of 'her mother who d
in 1880. The property in question had been in
possession of a son of "the deceased since her dea
He claimed the property under a will, but the \ .
was set aside by the Court as false in 1884 -.—H
that Limitation Act, Sch. II, Art. 123, is applica;
only to cases in which the defendant lawfully rep ■
sents the estate of the deceased, and that the .'t
was accordingly barred by limitation. Sithaj v
V. Narayana . . I. L. R. 12 Mad. 'I

Suit for

under a will — Qause of action — Amendment j
plaint. A suit was brought in May 1894 byi
legatee claiming under the will of a testal,
who died on the 8th December 1881, against i
executors of the will. The plaint did It
specifically ask for payment of the legacy r
for ascertainment of the share in the resio
due to the plaintiff, but set forth certain •
leged acts of misconduct on the part of the defe -
ants with respect to their dealings with the j •
perty, and prayed the Court to call for an acco t
to set aside certain sales of the property madey
the defendants, and for damages. The Courtf
first instance, without going into the men,
held that the suit was really for an accoi.,
and dismissed it as being barred. On appeal o
the High Court :—^eM, that the pUt
should have been amended in order to slv
clearly that the plaintiff really was trying o
recover his legacy from the defendants persomy
and that therefore the suit fell within Art. li>
Sch. II of the Limitation Act, which gives a peid
of twelve years from the date the legacy becsie
due, and, that beina; one year after the testatis
death (or the 8th December 1882), the suit ^8
in time. Cursetjee Pestoxjee Bottliwall '■
Dadabhai Eduljee . I. L. R. 19 Mad. '
7. Non-claim

share under an intestacy. One M N W '
intestate in 1837, leaving a widow (M) and
sons. M obtained letters of administrat
and until her death in 1897 remained in
possession and enjoyment of her husband's e^
although by law entitled only to a wid
share, the two sons being entitled t.
remainder. In this suit filed in 1897 by the w
of one of the sons : — Held, that the right of
Sons to recover the shares to which they were or ii^
ally entitled was barred by Hmitation (Art. I'.ioi
the Limitation Act), and their right to such slw
was extinguished under s. 28 of the Limitation^*-
M N If s estate had therefore become merge in
M's estate. Navroji IVLinockji Wadia v. Pe J-
bai .... I. L. R. 23 Bom 10

8. Suit by a Ma '^

tcidoic for her share in her husband's property. '^
widow of a Mapilla, who had died intestate '™
than fourteen years before suit, sued to recov »

( 7237 )

DIGEST OF CASES.

( 7238 )

LIMITATION- ACT (XV OF 1877)— con<i.

Schedule II — contJ.
Art. 123— cowW.

I one-sixteenth share of tlie property left by liira
' and his brother : — Held, that, although the parties
v/ere Mapillas, the suit was governed by Art. 123 of
the Limitation Act, and was accordingly barred.
Kasmi v. Ayishamma . I. L. R. 15 Mad. 60

9. Suit to recover

vatan allou'ance. In 1864 iV B, the owner of a
share in a deshpande vatan, died childless and
intestate. A certificate of administration under
.legulation VII of 1827 was granted to one G, a
instant relation, who received N B'ti share in the
vatan up to and including the year 1871. In the
meantime, viz., on the 19th November 1870, two
■oearer relations, D and B, succeeded in gettin.ci-
iS's certificate cancelled, and obtained a certi^
iicate to themselves jointly. In 1876 the Col-
lector recognized D alone as the heir of N B, and
baid D's son ^S' the share of the deceased N B wit!i
.irrears from 1872. After S's death, his son N
defendant No. 1) received it down to the year
1 884. In 1883 K (father of plaintiff No. 1) got
|ie certificate of 1870 cancelled and obtained a
jertificate to himself jointly with defendant No. 1.
k died, and the plaintiffs (his son and nephew)
;rought this suit claiming to be co-sharers in the
ne anna and four pies share of N B. The defend -
nts contended inter alid that the suit was barred-
lie Court of first instance awarded the plaintiffs'
aim for the three years previous to the suit, and
sjected the rest of the claim. The defendants
ppealed to the District Judge, who held that the
aintiffs' claim was totally barred under Art. 123
the Limitation Act. On appeal bv the plaint-
t8 to the High Court -.—Held, reversing the decree
the lower Appellate Court, that Art. 123 did not
t>ply, and that the suit was not barred. There was
^ cause of action until N B and his successors in
to D and S were recognized by the Collector and

id the

arrears of tiae hal<. G was quite indepen-

nt of them, and this recognition did not take
ice untd 1876— less than twelve years before the
stitution of the plaintiffs' suit. Kesh.w Jag w-
,TH V. Narayav Sakharam

I. L. E. 14 Bom. 236

10 -

... , . , , ~ ^e^ftcy in satis-

t\on 0/ indebtedness— Claim for leqcicy, with ancil-

^Ij o^'!/"'","'^?'"''''''''''"' °f ^«<«'e- By his will

U»d 27tli April, 1887, a testator provided as

JowB :— My elder brother Ry. V. K. G.'s self-

lu.sition to the extent of about R 10.000, is kept

-h me. So that money should be given to him."

e testator d.ed on 14th September. 1888. In

uary 1697, plaintiff received R6,000 on account

^'l'.n9th May, 1899, he filed this suit against

■n and executors of the deceased, claiming

•n account miglit be taken of the testator'^

(i.C^^ ' w, ^^^ ^* ^^^^^ ^^ administered by the

Mirt ; and that the balance of principal and inter-

tf wP!;^'?,P^^'"*'ff- It\vas contended in
l-nce that the R 10,000 was not a leagcy, but

LIMITATION ACT (XV OF 1877)-confei.

Schedule TL—contd.
Art. \^S—cowJd.

either a loan b}' plaintiff to the deceased or a
deposit payable on demand, and that in either case
it was barred by limitation : — Held, that the bequest
was a legacy in satisfaction of the indebtedness of
the testator to plaintiff. Held, also, that, although
plaintiff prayed for an administration of the estate,
that prayer was only ancillary to his claim for the
legacy; that Art. 123 of Sch. 11 to the Limitation
Act was applicable and that the suit wai not barred.
It was also contended that plaintiff was estopped
from claiming a legacy under the will as he had dis-
puted the validity of the latter, and had elected to
take the R 10.000 as a debt due to him-ielf, and not
as a legacy. It appeared the plaintiff's brother had
sued for a share in the testator's estate as family
property, and that plaintiff had supported him, and
had also claimed a share: — Held, that there was
no estoppel, and plaintiff's right to the legacy was not
affected by tliat claim. RAJA>rAX>TAR v. Ven'Kata-
kbish>tayya (1902) . I. L. R. 25 Mad. 381

— Arts. 123, 144—
See Maho.medan Law

Inherit ANCE
I. L. R. 31 All. 557

^ Art. 124 (1871, Art. 123)—

Suits of the nature described in this article were
under Act XIV of 1859, held to be governed by
cl. 12 of s. 1, the general limitation of twelve years

1. Office of hereditary

priest — Imm-yveahle properti/. In a suit between
Hindus, the office of hereditary priest to a temple,
though not annexed to, or held by virtue of, the
ownership of any land, yet being by that law
classed as immoveable property, should be held
to be immoveable property within the meaning of
cl. 12 of s. 1 of the Limitation Act, 1859. KRiSH}rA

BHAT BIM HlRAQAKGE V. KaPAVAT BIN' .MaHALBHAT

6 Bom. A. C. 137

B.vLVANTRAV alias TatI-UI Bapaji v. Ptrsotam
SiDiiEsiivAR .... 9 Bom. 99

In a Madras case, however, the six years' period
was held to apply.

2. ■ Office of karnam —

Incidental right to land attached to office. Suit
brought in 1868 to establish that plaintiff had
vested in him the right to the office of karnam of
certain villages from which he had been ousted
by the defendant in 1857, and to recover from
defendant the mirasi lands annexed to the office.
The Court of first instance decreed for plaintiff.
The Civil Court reversed this decision on the
ground that title to the office was the principal
matter of the plaintiff's claim and the right to
possession of the land merely an incident
dependent upon that title ; that therefore
as tlio period of limitation applicable to the
former claim (six years) had elapsed before the in-
stitution of the suit, it was not maintainabla for the

10 X 2

( 7239 )

DIGEST OF CASES.

( 7240 )

LIMITATION ACT (XV OF 1811)— cantd.
Schedule II— contd.

Art. 124^conUL

land. Upon special appeal, the decree of the Civil
Court Was afBrmed on the grounds that it was con-
clusively found that the land was inseparably
attached to the office as a source of endowment for
the services of the holder of it for the time being,
and that, as against the plaintiff, the defendant was
protected in the possession of the office by cl. 16, s. 1,
Act XIV of 1859. Tajmmikazu Ramzogi v. Pantina
Naesiah .... 6 Mad. 301

Suit for possession

LIMITATION ACT (XV OF 1817)— contd.

Schedule 11— contd.
Art. 124— cow«<^.

of hereditary office and for account — Adverse pos
tession. X, the founder of two pagodas, died in 1795
leaving six sons, of whom two were named C and
T respectively. T, the younger, died in 1834,
leaving two sons, of whom one, who died in 1853,
Was the father of the plaintiff. The founder's
elder son, C, died in 1816, leaving two sons {M,
who died in 1840, and L, who died in 1847) and
two daughters {A and the defendant's mother).
The office of dharmakarta descended from
the founder to C. After his death a manager
was appointed by the Collector, and C's son M
was dispossessed by his uncle T, and in 1834
M brought a suit in equity against T and his sons.
Pending the final decree, M was appointed by the
Supreme Court to act as dharmakarta. A decree
was never passed, and the suit abated on l/'s death
in 1840. M was succeeded in the office of dharma-
karta by his brother L, who held it till 1847, when
he died, leaving it by will to his sister A and her
husband R jointly. R died soon after, and A in
1872, leaving the office by wiU to her sister's son,
the defendant. In a suit by plaintiff, as eldest sur-
viving male member of the founder's family claim-
ing the office of darmakarta, or that, if he were not
entitled, some proper person might be appointed |
to it, and praying that an account might be taken |
of the pagoda property against the defendant as
dharmakarta, and also as executor of A : — Held on
appeal (confirming the decision of the Court of first
instance), on the first question, that the suit was
barred by the Limitation Act (IX of 1871), Sch. II,
Art. 123 ; that whatever might be the effect of the
possession by M and L, the wiU left by L in 1847
bequeathing the office to his sister A and her hus-
band R was an act unequivocally hostile to the
rights of the male members of the family ; and as
the w-iU was at once acted upon, they must have had
notice of this invasion of their rights. Mamally
Cnenna Keshavaeaya v. Vaidklinga

I. L. R. 1 Mad. 343

4. ~ • Suit for possession

of hereditary office — Watan, alienation of. Adverse
possession, in the case of an alienation of a watan,
only begins to run against the heir from the
time when he is entitled to succeed to the posses-
sion of the watan property, i.e., from the date
of the death of the wantandar. Ravlojieav

BIJf TaMAJIRAV v. BaLVANTKAV VjiNKATESH

I. L. K. 5 Bom. 437

5. — Suit to have t

appointment of a karnam declared void — Suit /
hereditary office. A suit by existing karnan
to have the appointment of another person as
karnam jointly with themselves declared void, do
not fall within the provision of Art. 124 of t
Limitation Act. LAKSHMmARAYANPPA v. Venk
taratkam , . . I. L. R. 17 Mad. 3!

6. ■ 1 Suit for declarati

of right as khadims of temple and for turn of wars
— Suit for hereditary office. The plaintiff sued

a declaration that they were khadims of a certi:
Mahomedan durga and as such entitled to perfo .
the duties attached to that office for twenty-o
days in each month, and during that period >
receive the offerings made by the worshippers p
the durga : — Held, that the suit, being a claim )
an hereditary office, fell under Art. 124 of i;
Limitation Act, and was not barred by Hmi-
tion. Sarkxtm Abu Toeab Abdul Waheb .
Rahaman Buksh . I. L. R. 24 Cale. }

7. • — Suit hy reversion i

heir for office of shebait — Hindu law — Endowmer-
Succession in management. Where a shebait ds
not appoint his or her successor as provided in e
will of the founder and where there is no other ] •-
vision for the appointment of shebait, the mans!-
ment of the endowment must revert to the heir if
the founder ; and the limitation applicable to a .t
for possession of such an office is twelve years unr
Art. 124, and not six years under Art. 12ljf
the Limitation Act. Jai Bansi Kunwar v. Chaf"
dhari Singh, 5 B. L. R. 181 : 13 W. R. 396, 'd
Gossamee Sree Greedhareejee v. Ruman Lce^
I. L. R. 17 Calc. 3 : L. R. 16 I. A. 137, refed
to. Jaganxath Prashad Gupta v. Ranjit Si h
I L. R. 25 Calc. 4

8. and s. 28— Right to a te]u

office and its endowments — Adverse posse^'"
Certain offices in a temple and the end
ments attached thereto were held jointly by
members of two branches of a famil}-, repres.
respectively by the plaintiff and the defem
Long previously to 1872, the defendant's bi
got into sole jiossession, and in that year a tV.
settlement was arrived at, by which it was anv.
that the offices should be held in rotation an^
lands in equal shares ; and, in accordance with ."■
settlement, a certain village forming i)art oiM
endowment was delivered to the plaintiff's br;Cfl
of the family. In 1889 the defendant broug{ *
suit to recover a moiety of that village but iti'as
dismissed on the ground that the offices M
emoluments were indivisibler and went by ^"*
to the older branch of the family. 1^"*
plaintiff now sued in 1895 to estabhsh his rW
to the entire offices and to recover possession ciM
other village : — Held, that the defendant hatac;
quired a divisible right to a moiety by twelve jU*

( 7241

DIGEST OF CASES.

( 7242 )

I.IMITATION ACT (XV OF 1817)— contd. ! LIMITATION ACT (XV OF 1811)— conld.

Schedule II — cont'L
Art. 124— concZrf.

adverse possession, and that the suit should to that
axtent be dismissed. Alagirisami Naukar v.
SuNDABESWARA Ayyar . I. Ij. R. 21 Mad. 278
and Art 141 — Clai7n for the recovery

j/ an hereditary office — Succession hy Hindu
^oidow to trusteeship of temple — Alienation hy
vidow of temple property — Suit to declare aliena-
lon mvalid and not binding on those entitled to
lucceed the widoio as trustees after her death — Bar
j"' limitation. A temple was built and dedicated
k the public by one Jagayya, who acted as trustee
;»f it during his lifetime. He died childless and his
ridow succeeded him as trustee. She conti-
lued to manage the affairs of the temple until Octo-
iier 1885, when she transferred the right of trustee-
jhip together \\ith certain temple properties to the
irst defendant. In 1897 the \ndo\v died. The
ilaintiffs as the persons entitled to be trustees in
lUceession to her brought this suit in December
fH)0, to establish their rights as trustees and to
lave the transfer in favour of the first defendant
eclared invalid -.—Held, that the suit was barred
■ jnder Art. 1 24 of the Limitation Act. The property
ransfcrrcd with the trusteeship was only recover-
'ble by the plaintiffs in their rights as trustees which
ight had ceased to exist through the operation of
iie Law of Limitation. Gnanasambanda Pandara
\annadhi v. Vein Pandaram, I. L. R. 23 Mad. 271,
inferred to. The iwssession by the defendants
luring the lifetime of the widow was adverse to the
Ilaintiffs. who derived their title " from and
jirough " the widow, not\nthstanding the fact that
'ley were not her heirs in the strict sense of the
lord. Pydigantam Jagannadha Row v. Ram
joss Patxaik (1905) . I. L. R. 28 Mad. 197

Art. 125 (1871. Art. 124)-

See ante. Arts. 120 and 125.

See HrsDU Law — Alienation

12 C. W. N. 857

See Hindu Law — Widow — Power of
Widow — Power of Disposition or
AuENATioN . I. L. E,. 30 Calc. 990

'■■ Suit to set aside

ed made by Hindu icidoic. The cause of action
a suit by a reversioner during a widow's lifetime
declare a conveyance made by her to be void
1=8 held under Act XIV of 1859 to arise from the
te of the conveyance. Bhikaji Apaji v. Jaoan-
iTH ViTHAL . . . .10 Bom. 351
See Pkrshad Singh v. Ghedee Lall

15 W. B. 1

. ; Hindu widow —

it to set aside alienaiion and to restrain waste.

a Hindu ^^•idow, assigned one moietv of her

ire m her husband's estate to H S, in considera-

n that H S should conduct and pay all costs of

^suit which was then to be instituted against

i Schedule— II— con^/.

I Art. 125— con<d.

I ber husband's brothers, of whom B C, the present
I plaintiff, was one, to recover the share to which she
j was entitled, and also to pay her maintenance in
the meantime. The assignment was dated 24th
December 1864. The suit was brought, and a certain
sum, in Government paper and notes, was decreed
to K on August 5th, 1808. This sum was paid into
Court by 5 Con 10th March 1869, and upon X's
application was, on 10th March 1871, paid out to
her. B C then sued as reversionary heir to have the
deed of assignment set aside, and prayed that H S
should be restrained from receiving the moietv. The
plaint was filed on 14th March 1871. In it he
alleged his apprehensi^ of waste by K. Held, that
a suit simply to set aside the assignment would
have been barred as brought more than six years
from the date of the assignment, yet so far as it was
based on the allegation of apprehended waste, it
was not barred by the law of limitation. Biswa-

NATH ChUNDER V. KhaNTOMANI DaSI

7 B. L. E. 131

3. ^ Alienation — Decree

in a collusive suit against a Hindu ividow. Held, that
the action of a Hindu widow, in causing a collusive
suit to be brought against her and confessing judg-
ment therein, whereby the plaintiff in that suit got
a decree for possession of property of which the
widow was in possession holding a Hindu widow's
estate, amounted to an " alienation " of such pro-
])erty\nthin the meaning of Art. 125 of the second
Schedule of Act XV of 1877. Sheo Singh v. Jeon
I. L. R. 19 All. 524

This article applies only to suits to have deeds of
alienation declared void. An omission to bring
such a suit does not affect the right to sue for posses-
sion of the property alienated within twelve j'earg
of the -w-idow's death. (See Art. 141.)

See Chunder Kanth Roy v. Peary Mohun Roy

1 Ind. Jur. O. S. 21

Marsh. 33 : 1 Hay 69

WooMA Churn Banerjee v.

ZOOMDAR . . . .

and Srinath Gangopadhya v.
Roy

Hakadiitn" !Mo-
1 W. B. 347

L'. Mahes Chandra
4 B. li. B. F, B. 3

Limitation —

II ward — Hindu u-idow. A
suit to recover pro-

Alienation — Fictit
Hindu widow, plaintiff in

jjerty, in respect of which she was entitled to a
Hindu \ndow's estate, from the possession of the
widows of other members of her husband's family,
entered upon a collusive arbitration by which the
whole of the property of the plaintiff's husband was
divided amongst certain female members of the
family, it being declared that each of the parties
to the arbitration proceedings took an absolute
estate in the share allotted to her : — Held, that this
proceetling amounted to an " alienation " of the
property so dealt ^vith within the meaning of Article

( 7243 )

DIGEST OF CASES.

( 7244 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 125— concld.

125 of the second Schedule to the Indian Limitation
Act. Sheo JSivgh v. Jeoni, I. L. E. 19 All. 524,
referred to. Ram Saeup v. Ram Dei (1906)

I. L. B. 29 All. 239
Art. 126 (1871, Art. 125)— Canse of

action — Suit for possessio)i of joint estate impro-
perly alienated by father of plaintiff. In a suit
under the Mitakshara law for possession of land by
annulment of illegal sales by his father, the plaint-
iff's only cause of action is the taking possession
by the defendant of what was son's joint share of
the family property, and his suit ought to be
brought within twelve years of such adverse posses-
sion. POONHEET KOOER V. KiSHEN KiSHOEE

Nabain Singh . . . 23 W. B. 419

See NowBUT Ram v. Durbakee Singh

2 Agra 145

Art. 127 (1871, Art. 127 ; 1859, s.

1, cl. 13)-

See ante. Art. 120 . 7 C. W. N. 155

See Onus of Proof — Limitation and
Adverse Possession.

I. Ii. E,. 24 Mad. 441
I. L. R. 18 Bom. 513

S. 1, cl. 13, of the Act of 1859 applied to Mahome-
dan as well as Hindu families. Khyroonissa v.
Sabhoonissa Khatoon . . 5 W. R. 238
as this article does ; the corresponding article of the
Act of 1871 was specially applicable only to Hindus.

1. Suit for share in

family dwelling. A claim by a member of a joint
Hindu family to a share in a family dwelling, on the
allegation that the house was originally joint, fell
within the provisions of s. 1, cl. 13, of Act XIV
of 1859. Denonath Shaw v. Hurrynarain Shav?
12 B. L. R. 349

Keishnadhan Chowdhary v. Hur Coomary
Chowdheain ... 25 W. E. 37

"• Mortgage hy one

member of Hindu family — Surreiider of equity of
redemption. Act XIV of 1859, s. 1, cl. 13, was
intended to apply to suits bet\\een members of a
joint family, not to a case where a mortgage
having been made by one member "on behalf
of all to a stranger, that member afterwards, against
the M-ill of his co-partners, releases the equity of
redemption. Radhanath Das v. Elliot

6 B. L. R. 530
s.c. Radhanath Das v. Gisborne & Co.

15 W. R. P. C. 4
14 Moo. I. A. 1

Suit to establish

right to share profits of watan. In a suit to
establish a right to share in a watan and to
recover a portion of the profits thereof for seven

LIMITATION" ACT (XV OP 1877)— cow<
Schedule 11— contd.

Art. 121— contd. m

years : — Held, that the case was g^erned, as
limitation, by cl. 13, and not cl. 16, of s.
and that arrears for seven years were therefc
properly awarded. Gundo Anandhrav
Krishnarav Gobind . . 4 Bom. A. C. I
4. — ■ — — — . Suit to enfo.

right to separate possession. CI. 13, s. 1, appli
to suits in which a plaintiff sought to introdi
one or more additional co-sharers into the enj(-
ment of propertj" alleged to be joint, not wb .
a plaintiff sought to enforce his right to separ
possession of that to which he was entitl.,

LuKHEE MONEE DoSSEE v. BROJOBULLtTBSEk

IIW. R. ll

Right of ty

claiming partition after father's death — Surviv-
ship — Inheritance. Cl. 13 of s. 1 of Act XVI c
1859, when it provided, as the period of limitat;i
for partition suits, " the period of twelve years fr i
the death of the persons from whom the prope; '
i alleged to be joint is said to have descended'
must be taken to have been intended to apf,
in this Presidency, to the case of a son claim i,
partition of joint family property after the deti
of his father ; although in strictness the languu
of that clause would not then be applicable, in-
much as in this Presidency, and wherever i
Mitakshara law prevails, sons in such a case >
considered to take by survivorship rather than f
inheritance. Hansji Chhiba v. Valabh Chhi!
I. L. R. 7 Bom. Sf

6. ^^ Suit for divisi

of family property. Where a suit was brou t
for a division of family property twelve yea
after the death of the head of the family -.—Hi,
that the suit was not barred by cl. 13, s. 1, it
XIV of 1859. SuBHAiYAN V. Sankaea SuBHArjf
2 Mad. {|7

7. Suit to con^

partition of moveable and immoveable property. »•
Hindu of the Southern Maratha country, ha\'g
two sons undivided from him, died in 1872. lei^if
a will disposing of ancestral estate substantial!'
favour of his second son, excluding the elder,
claimed his share in this suit. In 1861, a
brought by this elder son against his father i
brother to obtain a declaration of his right a
partition of the ancestral estate, was dismissedfn
the ground that he had no right in his fatb8
Ufetime to compel a partition of the moveab> ;
and that, as to the immoveables, the claim faA
because they were situate beyondthe jurisdictic.of
the Court : — Held, that the suit was not ba»
under the Limitation Act (XIV of 1859), a. IpL
13. As to the immoveables setting asidebe
fact that the plaintiff had remainel in posseson
of one of the houses of the family which had *o
treated by the father as continuing to be part oJhe-
joint property, the decision of 1861, based as tcn»
immoveables on the absence of jurisdiction to"

( 7245 )

DIGEST OF CASES.

( 7246 )

IMITATION ACT (XV OF 1877)-

Sehedule II — conld.
Art. 127— contd.

zonid.

ire partition of them, cause this part of the claim
fall under the provisions of Act XIV of 1859, s.
. As to the moveables : assuming that they could,
I the question of limitation, be treated as distinct
sm the immoveables, and that no payment had
•en made within twelve years before this suit by
e ancestral banking firm to the plaintiff, the ad-
dication of 1861, whether in law correct or in-
rrect, had been that the elder son could not assert
■ rights in the moveables until his father's death.
•: defendant in this suit, who had taken the bene-
of that judgment, could not now insist that it did
t suspend the running of limitation on the ground
at his brothers might have appealed from it if
•oneous. So far, also, as the father's interest wa?
iQcemed, the succession only opened on his death.
J.KSMAN Dada Naik V. Ramchandea Dada Naik
I. L. R. 5 Bom. 48
L. R. 7 I. A. 181
}. Suit to recover

ire of joint property inherited. CI. 13, s. 1 of
it (XIV of 1859), was not appUcable to a suit to
■never a share of joint property to Mhich the
]intiff claimed to be entitled by inheritance.
I'SONATH Rana v. Rubeebunissa Bibee

20 W. R. 270

•. ■ Suit to enforce

f U to share in joint property. Suits to enforce
t, right to share in any property, on the ground
fit it is joint family property, must be brought
v'hin twelve years, exclusive of the period during
V;ich the property Avas under attachment by
Ci.-emment and neither party was in possession.
SiDOJiKAV V. Naikjirav . . 10 Bom. 228

to. _____ — . Suit by adopted

*j for share of ancestral estate — Cause of action.
•A against an adopted son suing for his share of
tl, ancestral estate, the law of limitation does
H; begin to run until the allotment of such
Bl|re has been demanded and refused. Ayyavtj
I'lPPANAR V. NiLADATCHi Ammal . 1 Mad. 45

}■• — Suit of share

ofamily property — Exclusion from possession. In
a! it to enforce the right to share in property on
tl ground that it was joint family property : —
«,f,that, upon the construction of cl. 13, s. 1,
A^ XIV of 1859, the claimant in order that the
stiute shall be a bar, must have been entirely out
oi possession and excluded from possession by
tl ie against whom he claims. Govixdun Pillai
"hidambara Pillai . . .3 Mad. 99
ie Rajeswara Gajapaty Naraina Deo Ma-

H. AJPLTTNGARU V. ViRAPRATAPAH RUDRA GaJA-

'ijr Naraina Deo Maharajulxtngartt

5 Mad. 31

SUBBAIYA V. RajeSVARV SaSTKTTLU

4 Mad. 354

^ . Question as to

"^wive possession^Onus of proof— Refusal to

LIMITATION ACT (XV OF 1877)— con/i.
Schedule 11— contd.
Art. 127— <;on<d.
allow share. The question of fact whether there
has been such exclusive possession or enjoyment
must be decided upon the evidence in each case,
and may be satisfactorily proved, although there
may be no evidence of an express refusal to
allow plaintiff any part of the benefits of
the joint property. Subbaiya v. Rajesvara

Sastrulu 4 Mad. 354

Jaraoo v. Fakeera . . .3 Agra 133
Rajoo Singh v. Guxeshmoxee Burmonee

15 W. B. 400

13. Suit for share

of joint property. A got a decree for possession,
but before she obtained possession, B obtained a
decree declaring him jointly entitled with J to a
particular share of the same property : — Held, that
when A got possession that possession enured to
the benefit of B as well as to herseK, and £'s cause
of action in a suit against A in respect of the same
property dated from the time wl;o:i A obtai; ed
])ossi'Ssion and a i-uit was not barred if brought
within twelve years of that time. Gooeoo Chukx
Sircar v. Golukmonee Dossee . 13 W. R. 188

14.

^ Suit for share

of profits. If by arrangement the shares of certain
co-sharers are left in the possession of other co-
sharers during the period of a current settlement,
the cause of action to the sharers whose shares
have been so left for profits accrues only when the
settlement expires. Toolsee Ram v. Nahur Sixgh
3 Agra 271

15. Suit for share

of io:nt property. — Cause of action. Where parties
are living together in commensality and in joint
possession of property, no cause of action arises
to one of them for the recovery of his share until
he is dispossessed by the other, and limitation runs
from the date of such dispossession. Jadcb
Chunder Sandyal r. Buyrcb Chcxdeb Sandyal
19 W. R. 344

16. . . Adverse posses-

sion— Suit for partition. Where the bulk of the
estate of a Hindufamily is held and managed by a
single member of the family, and the other
members receive and enjoy part of the lands as ■■ir,
the possession of the bulk of the estate by the
manager is not adverse so as to bar, under the
Limitation Act XIV of 1859, s. 1, cl. 13, a suit by
the others for partition, unless there are circum-
stances to show that they accepted tl.e sir luids in
lieu (if the shares that wouM have been allotted to
them on a partition. The case oi Appovier v.
Rama Subha Aiyan, 11 Moo. I. A. 75, approved.
RuNJEET Singh v. (Jtoraj Singh

L. R. 1 1. A. 9
17. ■ Receipt of pay-
ments for share of joint property. That a Hindu
widow, entitled to her husband's .ehare of
the joint property, continues to live in the

( 7247 )

DIGEST OF CASES.

( 7248 )

LIMITATION ACT (XV OF 1877)— conid.

Schedule II — contd.
. Art. 121— contd.

family and mess with them; is sufficient in the
absence of evidence to the contrary, to show
that she is receiving payments on account of
her share, within cl. 13, s. 1, Act XIV of 1859.
GoBiND Chunder Bagchee v. Kkipamoyee
Dabee 11 W. R. 338

18.

Rent collected

by one member of Mahomedan family lining jointly.
Even if a member of a Mahomedan family
collects the rents and profits of the famUy pro-
perty, his possession cannot be considered adverse
to his mother and sistcf, so long as these live and
mess jointly with him and receive money's worth
in the payment of their family expenses. Siedar
V. MoLUNGO Sirdar ... 24 W. R. 1

19. Joint property,

suit for share of — Onus prdbandi. A suit to
enforce a right to a share of joint family property
must be brought within twelve years from the
date of the last payment to the plaintiff, or the
person through whom he claims on account of the
share ; and the onus is on the plaintiff to show
possession of the share, or receipt of a payment on
account of it, within twelve years. It is- not
sufficient for the plaintiff to show that the property
was joint family property. Gossain Doss Kooxdoo
V. SiRO Koomaree Debia

12 B. L. R 219 : 19 W. R. 192

Umbika Churx Shet v. Bhaggobutty Churn
Shet 3 W, R. 173

Byddonath Ojha v.' Gov ax. Mal 6 W. R. 170

HtJREEHUR MOOKERJEE V. TeENCOWREE DoSSEB

6 W. R. 170

Kristo Chunder Burmo Surmah v. Mohesh
Chunder Burmo Surmah . 23 W, R. 381

20, — — Suit for share

of joint ancestrfd property. A Hindu died in
1840, leaving him surviving seven sons, who, after
their father's death, entered into joint possession
of certain immoveable propei-ty which had been
left by him, and continued to live in commensaUty
until 1859, when a separation in mess took place.
Subsequently, more than twelve years after the
father's death a suit was brought by the youngest
son for his share of the joint ancestral property
belonging to the father, and to property subse-
quently acquired out of the proceeds of such
joint estate, to which the brothers were entitled
in equal shares. The plaintiff failed to show that
any payment was made to hin» or any person
through whom he claimed, by the person
in possession or management of the property,
within twelve years before the commencement
of the suit •.—Held, that the suit was barred by
limitation under cl. 13, s. 1, Act XIV of 1859.
Uma Sundari Dasi v. Dwarkanath Roy

2 B. L. R. A. C. 284

LIMITATION ACT (XV OF IQll)— contd.

Schedule II — contd.
Art. 121— contd.

s.c. WooMA Sunduree Dossee v. Dwabk-
KATH Roy 11 "W. R. 7

Amitrav bin Yeshvantrav Deshmukh
Anyaba Abaji Desmukh . 5 Bom. A. C. 5<

21. Entry of nam^

in reji^iter. Held, that the plaintiffs' suit we
barred by lapse of time, they having receive
nothing from the property, a share of which tht
claimed, for a period beyond that prescribed ';
cl. 13, s. 1, Act XIV of 1859. The fact th
the plaintiffs had a manifest right by inheritanc
and that their names had been entered in tl
revenue registered as proprietors, is not equiv,
lent to proof of payment to and receipt I
them of any profit on account of their shar
Khorun Singh v. Beharee Lall . 3 Agra f

Maksood Ali Khan v. Ghazeeooddeen Kh.-
3 Agra 15

22. Suit to enfor

share of joint property — Proof of payments. J
ruling that a suit to enforce the right to
share in certain property on tho ground th;
it is joint family property is barred und
s. 1, cl. 13, Act XIV of 1850, itisnotenou|
to find that the plaintiff had occasional
received money from the defendant, and that h
sister continued to live in what had originally bet
the joint family dwelling-house ; but there must 1
a distinct finding as to what payments, if any, ha\
been made to the plaintiff within twelve years ne:
prior to the date of the institution of the suit by tl
person in possession or management of the proper
on account of the plaintiff's alleged share. Pbc
SONG Coomar Mookerjee v. Shama Chih
MOOKERJEE . . . . 17 W. R. 41

23.

Payments

joint share. Proof of payment is not ne essary
bring a case within cl. 13, s. 1, Act XI\' of ISoi
but the limitation therein prescribed will app
to the case of a person entitled to a share _
property and simply enjoying the property wii
the co-sharers, there being no division of men
or any payment at all made between thei
Bhujohuree Paul i;. Huro SoondureeDebee
17 W. R 5;

24. Receipt of fU

of profits otherwise than by money. In a suit
recover possession of land alleged to have belong<
jointly to the plaintiff's late husband 0 and hi
late elder brother P, the defendant pleaded limit
tion, on the ground that neither the plaintiff norh
predecessor was in possession mthin twelve yeai
It was found that the two brothers had Uved
the same mess, the elder collecting the rents ar
profits and theremth managing the fami
expenses : —Held, that, if O did not receive mone
from P, he received money's worth, and that wou
suffice to brins the case mthin Act XIV of lo5
s. l,cl. 13, and if cl. 13 did not apply, cl. 12 musi

( 7249 )

DIGEST OF^CASES.

( 7250 )

MITATION ACT (XV OI' 1811)— contd. I LIMITATION ACT (XV OP l811)—contd.

Schedule 11— contd. Schedule 11— contd.

.; Avt. 121— contd. Art. 121— contd.

«|I the suit was not barred. Chunder Monee

JbU v. MpHABJAN BiBES

J5.

W. R. 185

Suit by Hindu
iluded from joint jamily propeity. In a suit by
I Hindu excluded from joint family property, to
( orce a right to a share therein, brought before
tilstof October 1877, the period of limitation
I st bp computed under Art. 127, and not under
I-:. 143, of Sch. II of Act IX of 1S71. Kali
1:qob£ Roy v. Dhdnuxjoy Roy
{ I. L. E. 3 Calc. 282

" jjnder Act IX of 1871, the cause of action arose
i,m the time when the plaintiff demanded, and
v3 refused, his share ; consequently it was then
T'essary to make that allegation. HaNS.ii Chhiba
t^ALABH Chhiba . .' I. L. E. 7 Bom. 297

,56. — ExduMon from

e\re of joint property. Art. 127, Sch. II of Act
J of 1871 presupposes the existence of joint
f. lily property and that there has been an exclusion
f 'n participation in the enjoyment of such pro-
bity. Semhle : The word " excluded " in that
iicle implies previous inclusion. Saroda
S')NDXJBy Dossee v. Doya Moyee Dossee

I. L, R. 5 Calc. 938

;J7. Joint property

~\^viden,ce. Before a plaintiff can bring his case
Vhin Art. 127 of Sch. II of the Limitation Act,
li'7, it is incumbent on him to show that the
llperty in which he seeks to recover a share is
'Mnt property." Obhoy' Churls Grose v. Gobtnd
CpNDER Dey . . I. li. R. 9 Calc. 237

'58, - - - Suit by person

c'mirvj a share in joint family properly. The word
'ierson " mentioned in Art. 127 of Sch. IT of the
liaitation Act means some person claiming a right
t;>hare in joint family property upon the ground
t.the is a member of the family to which the
ftperty belongs, Eadhanath Dos<i v. Gisborne, li
-Vo. /. A. 1 ; J 5 W. B. P. C. 24 ; Ram Lakhi
v\imbica Churan Sen, 1. L. R. 11 Calc. 6^0; and
i'endraChunier Gupta Roy V. Aunoardi 31 undid
2^'.. R. 14 Cole. 5i4, relied on. Kabtick Chun-
J Ghcttuck v. Saroda Suxdaei Debi

I. L. R. 18 Calc. 642

i8. ^- _ A vplication of

'V/c — Strantjer holding property belonging to joint
■ftily. Art. 127 of Sch. II of the Limitation Act
V of 1877) does not apply except in cases
ween members of a joint family. It does
■ f PpJy to the case of a stranger to the family
ding property which originally belonged to
family. As to him, the ordinary rule of limi-
ion (Art. 144) applies. Bhavrao v. Rakhmin
I. L. R. 23 Bom. 137
JO.

Claim to pro-

ty as daughter's son. The provisions of -Art. 127
>ch. II of the Limitation Act do not apply to a
son who claims to inherit property as a

Nath Dutt

MOHUN DuTT V.

11 C. li. R. 312

- Suit for posses-

daughter's son. Mothura
BoRKANT Nath Dutt. Pearx
BoRKANT Nath Dutt .
31.

sion and partition — Acquiescence in alienation
— Exclusion from share. In a suit to obtain a
share by partition of a joint family property, the
interest of the plaintiff's father having been sold
in execution of a decree, limitation is to be
computed from the time when exclusion from his
share first becomes known to the plaintiff.
IssuRiDUTT Singh v. Ibrahim

I, L. R, 8 Calc. 653

32. Exclusion from

share — Suit for partition. Where in a suit for
partition a District Judge held the plaintiff's
claim barred on the ground that the defendant
had been in possession of the property in dispute
for more than fifteen years without any claim
having been made by the plaintiff : — Held, that
under the Limitation Act (XV of 1S77), Art. 127,
time would not run against the plaintiff until his
exclusion (if he was excluded) from the property
had become known to him. Hari v. Maruti

I. L. R. 6 Bom. 741

33.

Exclusion from

joint property. A collateral member of a Hindu
family, alleging it to be joint, claimed his share of
ancestral property in Oudh, part of which formed
a talukh inherited for a considerable time past by
the eldest son, who, taking the whole of it, had
given maiiftenance to the other members. This
taking was entered in the first and second of
the lists made under the provisions of the Oudh
Estates Act (I of 1869), and as to it there was
no ground of claim. But with respect to the
savings, accumulations, and investments made
from the income and proceeds of the talukh
before the confiscation and restoration of Oudh
lands in 1858. the contention was that each
member was entitled to his share, and that, bj- the
presumption in respect of a joint family, the burden
was on the talukhdar to prove that there were no
savings or accumulations made otherwise than out
of the talukh and before the confiscation : — Held,
that, if it were assumed that the family was for some
purposes undivided, still this was not the case of an
ordinary undivided Hindu family, and that, in such
a case as this the presumption must depend on
somewhat special circumstances. However, this
case must be decided on the distinct ground that,
as the claimant had been excluded from his share,
if he had one, for more than twelve years, he know-
ing of this exclusion, the law of limitation enacted in
Act XV of 1877, Sch. II, Art. 127, was applicable,
and the claim was barred bj* lapse of time. Raghu-
N.4TH Bali v. Maharaj Bali.

I. L. R. 11 Calc. 777 : L. R. 12 I. A. 112

Aliyasantaiia

law — Exclusion from joint family property. In a

( 7251 )

DIGEST OF CASES.

( 7252 )

lilMITATION ACT (XV OF 1871)— contd.
Schedule 11— contd.
-_ . Art. 127— contd.

suit in which the plaintiffs sought declarations
that they were members of an undivided
Aliyasantana family mth the defendants, that
certain property belonged to the family, and that
plaintiff No. 1, the senior member of the family,
was entitled to have the lands registered in his
name, the defendants denied the allegations in
the plaint, and pleaded that the suit for
declarations only was not maintainable, and that
it was barred by hmitation. It was found that
the plaintiffs had separated themselves from
the defendants more than twelve years before
suit -.—Held, that .Art. 127 apphed to the case,
and that the plaintiffs, having separated them-
selves from the defendants, had for more than
twleve years been to their oven knowledge excluded
from the joint family property, and that their suit
to enforce a right to share therein was barred.
Mahuhnga v. Mariymnma, I. L. i?. 12 Mad. 462,
distinguished. Muttakke v. Thimmappa.

I. L. R. 15 Mad. 186

35.

Suit for share

of joint property — Exclusion — Adverse possession.
In a suit for a share of undivided property from
which the plaintiff had been out of possession
admittedly for thirty-five years : — Held, that the
suit was not barred by limitation, as the posses-
sion of the share in question by the defendant
since 1845 had not been a possession of it as their
own property to the exclusion of the plaintiffs
or their father. NiLO Ramchandra v. Gobind
Ballal , . . I. L. B. 10 Bom. 24

36.

Limitation Act,

LIMITATION ACT (XV Or 1877)— con«rf.
Schedule 11— contd.

11^59, s. 1, cl. 13 — Hindu law. Maintenance —
Refusal of person liable to maintain — Cause of
action. In a suit for maintenance brought in 1 887
by a Hindu widow against the undivided family of
her deceased husband, who had died about twenty-
four years before suit, it appeared that her
maintanance had not been made a charge on
specific property : — Held, that time began to run
against the plaintiff's claim, under the Limi-
tation Act of 1859, only from the date of
refusal on the defendant's part to maintain
her. Narayan Rao Ramchandra Pant v. Ramahai,
I. L. R. 3 Bom. ilo, followed. Ramanamma v.
Sambayya . . I. L. R. 12 Mad. 347

37. Suit for share

of property alleged to he joint — Limitation Act,
1859, s. 1, cl. 13 — Property in possession of
a managing member. Suit for partition and
possession of an undivided share of property
sold to plaintiff by an aged gosha lady of the
class of Canarese Mahomedans called Navayats.
The property sold was the vendor's share as
heiress of her father, brother, and sister, who
died in 1856, 1866, and 1871, respectively ; but
it appeared that the property of the family had
been in the possession of one managing member

- Art. 127— contd.

since 1856 : — Held, that the suit was not barr
bv limitation. Khatija v. Ismail

I. L. R. 12 Mad. Si

38. Suit for poss-

sion by purchaser from share>- in joint family. A
127ofSch. II of Act XV of 1877 does not apply,
a suit where the plaintiff is a stranger, who 1,
purchased a share in joint family property frr
one of the members thereof. Horenf.
Chundra Gupta Roy v. Atjnoardi Mundxtl

I. L. R. 14 Calc. 5.:

39. Hindu lau-

Joint family — Joint estate — Partition — Portion '
estate reserved undivided — Possession of reserl
portion by one member of family — Adverse posi-
sion — Possesion, inference arising from — Bunt
of j)roof — Res judicata as betiveen defendants. !•
plaintiffs sued for part of a house as a porti
of joint family property left undivided on e
occasion of a general partition which had tall
place about thirty-five years before the s'>.
The defendant had since then been ia ss
possession and enjoyment of the house in <\-
pute. The Subordinate Judge dismissed the iit
as barred by limitation on the ground that e
plaintiffs had failed to prove participation a
possession or enjoyment M'ithin twelve years. Q
appeal, the Assistant Judge held that, as no she
had been demanded or refused, the defenda:s
possession was not adverse to the plaintiffs, anc.s
the house in dispute had been admittedly reserd.
from partition, Art. 127 of the Limitation Act ( /
of 1877) did not apply. He, therefore, reversed ie
decree of the Subordinate Judge, and remand
the case for re-trial on the merits. On appeafO
the High Court : — Held, that the suit was barl.
The fact that the house in question had admitttrj
remained undivided did not prevent the opera ji
of the Limitation Act, and Art. 127 of Act
of 1877 applied. That Article applies equally
portion of joint family poperty left undividec^
to the whole estate, and a twelve years' exclu""
known to the excluded sharer, binds him in
one case as in the other. What would bar
operation of the Article in question would
reserve of a part of the joint estate from part'
and a possession of that portion conceded to.
taken by, one of the sharers as the common
perty of himself and tlie other sharers. I>»r
CHANDRA Narayan v. Narayan Mahadev I
I. L. R. 11 Bom. 16

See Tatya v. Anaji

I. L. R. 11 Bom. 220 i

and ViTHOBA v. Narayan

I. L. R. 11 Bom. 221 i

40. _ Hindu U--

Partition — Property exchulrd from partition. ^^
members of a joint Hindu family made a partoa
of family property in 1877, reserving undivi»«»

( 7253 )

DIGEST OF CASES.

( 7254 )

IMITATION ACT (XV OF 1871)— contd. LIMITATION ACT (XV OF 1877)— confef.
Schedule U—contd. \ Schedule 11— contd.

Art. 127— contd.

)wever, certain land and the capital and assets of
eir family business ^vhich remained under the con-
d1 and in the possession of one of them, viz., the
esent first defendant. The plaintiff, who was a
?mber of the family, demanded his share in the
divided property on the 4th of March 1882, and
e defendants refused to give effect to his claim,
le plaintiff in 1892 sued for his share in the
operty •.--Held,'- ths,t the property in question
■9 co-parcenary property, notwithstanding the
i asaction of 1877, and that the plaintiff's suit
18 not barred by hmitation. Muthtjsami

CDALIAR V. NaLLAKLLAKTHA MuDALIAR

I. L. R. 18 Mad. 418

Art. 127— conld.

11.

Exclusion from

44. and Art. 142— Exclusion from

joint family property. Onus of proof. Ait. 127
(and not Art. 142), Sch. II of the Limitation
Act, apphes to a case where the plaintiff has
been excluded, from joint property, and under that
article the onus is upon the defendant to prove that
the exclusion from joint fam'ly property became
known to the plainitff more than twelve years
before suit. Brindarani v. Bundhoo (Appeal from
-Appellate Decree No. 1023 of 1888, decided by
O'KiXEALY and Teevelyan. JJ., on the 22nd.
February 1889, unreported), followed. UmeSH
Chandra Bhattacharjee v. Jagadis Chandra
Bhattacharjee . . . 1 C. W. N. 543

.|jre t» a portion of joint property. The fact that
'■} plaintiffs were not excluded from their share in
; rt of the joint property does not prevent Art. 127,
!i. II of the Limitation Act (XV of 1877), from ;
ijjrating in respect of another part from which
tj'y had been excluded to their knowledge.
• iSHNTT Ramchanea V. Ganesh Appaji Chow-
i AKi . . . I. L. R. 21 Bom. 325

'i2 and Art. 144— Partition efjected

\;}iout taking into account a minor co-parcener —
.valid partition — Adverse possession — Exclusion
)im joint property. Three brothers, S, L, and K,
•>e members of a joint Hindu family. In 1862
And L divided the whole of the family property
jtween them without reserving any share for their
pther K, who ^^ as then a minor. A' lived with L
ija member of his family. L died in 1867, leaving
«!hildlesswidoW; with whom K continued to live
Ij his death in 1876. Z lef t an infant son (the

I intiff), only a year old. Subsequently, S died
i|1887, leaving two widows without issue. In 1889

t; plaintiff, being still a minor, sued by his next |

find to recover the family property in the posses- {

* 1 of the widows of L and S.—Held, that the suit '
Y not barred by hmitation, either under Act

II of I87I or Act XV of 1877, in the absence
Ciany evidence showuig that A' ever demanded |
Ijlition and was refused, or that ho was excluded j
t lis knowledge from all participation i n the family ;
"perty. Krishxabaii;. Khaxgowda !

I. L. R. 18 Bom. 197 !

"• Sitil for parti- j

'''—Excl'Wiion—Burden of proof. In a suit for |
I tition of joint family propertv, the defendant \
\ I tl *^^** *'^^' plaintiff's branch of the family \
U been eparated more than thiity years ago. ]
Jl! plaintiff proved that the family 'property was 1
J«;t, and that he had a share in it -.—Held, that, I
«jer the circumstances, it lay on the defendants
w prove plaintiff's exclusion from the joint estate i
«« moie than twelve years and an exclusion
■ wn to the plaintiff. Jivaxbhat v. Axibhat
I. li, R. 22 Bom. 259

45.

Joint family-

Possession by one meynber of family — neglect by
plaintiff to tal-e possession of his share notuith-
standing request that he would do so — Adverse,
possession. The plaintiff and the defendant were
brothers and members of an undivided family.
The plaintiff was in Government service, and
had been for a long tin:e absent from his
native place on duty, the family property
remaining under the management of the defend-
ant. In 1863 the defendant wrote to the
plaintiff, requesting him to return and manage his
share of the property, or to employ some one to
manage it for him. Nothing, however, was done
by the plaintiff in the matter and the defendant
continued in possession. In 1882 the plaintiff sued
the defendant for partition. The defendant pleaded
that the suit was barred, contending that he had
been in adverse possession from the date of the
letter. The Court of first instance a^^arded the
plaintiff's claim. The defendant appealed, and
the lower Appellate Court reversed the lower Court's
decree holding that the suit was barred. On appeal
by the plaintiff to the High Court -.—Held, that the
suit ^\as not barred. The above-mentioned letter
of the defendant showed that, up to the date at
which it was written, the defendant had not been
in possession of the property, " as his own property
to the exclusion of the plaintiff," and the mere
circumstance that, subsequently to the date of the
letter, the plaintiff had not participated in the
profits, would not, in the absence of other evid'-noe,
justify the inference that the plaintiff was then
excluded. Dixkar Sadasihv i'.Bhikaji Sadasiv
I. li. R. 11 Bom. 38
46. Limitation Act,

]So!>, s. J, cl. /•?— Suit for share on partition of
property. In 1803, G being in possession of the
zaminadri of M the permanent settlement was
made with liira, and a sanad was granted to him as
prescribed by Regulation XXV of 1802. In 1827
C, the only son of G being in possession of the
zamindari, got into debt, and the zamindari
was sold in execution of a decree and bought by
Government. In 1835 the zamindari was
granted to J^, the son of 0, by Government and a.

( 7255 )

DIGEST OF CASES.

( 7256

XIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
— Art. 12.1— contd.

LIMITATION ACT (XV OP 1877)— con
Schedule 11— contd.

■sanad issued in the usual terms as prescribed by
Regulation XXV of 1802. J died in 1864, leaving
four sons, the three plaintiffs and D, his eldest son.
.0 died in 1869 leaving an only son, the infant
defendant. In 1869 the Court of Wards took
charge of the estate on behalf of the infant defend- j
ant and allowed his uncle, plaintiff No. 1, to
receive the rents of the zamindari as renter. The
infant defendant and his three uncles lived in the
same house and participated in the joint family \
property until 1872, when the plaintiffs claimed to
have the zamindari divided. By an agreement
between the plaintiffs and the Court of Wards all
the moveable and immoveable property, except the
zamindari talukh, was divided into four shares
and distributed in 1874 between the plaintiffs and
defendants. In 1884 the plaintiffs sued for parti-
tion of the zamindari, alleging that their cause of
action arose in 1872, when the Court of Wards
denied their right to a partition of the zamindari
talukh. The defendants pleaded that the suit was
not barred by limitation : — Hed, that the suit was
not barred bv limitation. Jaganatha v. Rambha-
DRA . " . . . I. L. R. ll'Mad. 380

47. Act XIV of

1S59, s. 1, cl. 13 — Joint family — Partition — Claim
"by absent member — Adverse possession — Exclu-
sion— Participation in profits of joint property —
Payment — Occasional residence of ivife of absent
member with joint family. The plaintiff and his
four brothers {G, S, R, and B) were members of a
joint Hindu family. The only one of them who
lived at home wasS. In 1854 the family property,
which had been mortgaged, was redeemed by
the brothers, and after redemption it Avas placed
under the management of S by the eldest
brother G. Subsequently, two of the brothers
died while absent from the village ; and the plaintiff,
Avho was twenty j^ears of age in 1854, joined the
army in 1855. Ke did not return until 1876; but,
during the interval his wife used occasionally to
visit her husband's native place and during these
visits resided in the family house with S and G.
In 1872 G died. The plaintiff alleged that in 1876
he demanded his share, but was refused. In 1883
he filed this suit for partition. It was contended
that the right of the plaintiff had become barred
by the Limitation Act (XIV of 1859) and was not
revived by Act XV of 1877, which was in force at
the date the suit was brought. The Court of first
instance awarded the plaintiff's claim. On appeal
the Assi-tant Judge reversed the decree of the
Court below, holding that under cl. 13 of s. 1
of the Limitation Act (XIV of 1859) the plaintiff
had his right to sue, and that such right could
not be revived bv the passing of the subsequent
Limitation Acts (IX of 1871 and XV of 1877).
He was of opinion that the fact that the plaintiff's
■wife "had put up at <S's house for a few days,
if it were a fact, did not help the plaintiff's
-title ": — Held, by the High Court following Ahmed

Art. 127— contd.

V. Moro Keshav, I. L. R. 11 Bom. 4'il note
the occasional residence of the plaintiff's wife th
8, who was in possession of the property, migh be
a benefit out of the estate equivalent to a payi nt
so as to satisfy the requirement of cl. 13 of s. of
Limitation Act (XIV of 1859). If such a be fit
had been received by the plaintiff Mithin tv.ve
years previously to the repeal of that Act, the pi it-
iff had not lost his right to sue at the date of he
passing of Act IX of 1871 ; and that Act ^ ild
therefore have applied to any suit brought by m.
while it M-as in force. By Art. 127 of Sch. II olh"
Limitation Act (IX of 1871), the period of I:
tion dated from the time when the plaintiff '
and was refused his share, which, according
plaintiff's allegation, was in 1876. Act IX ot >:i
was repealed by Act XV of 1877, which govned
the present suit, unless the right to sue had ex -ed
under Act XIV of 1859. The Court remandet;he
case for a fresh decision on the question of lita-
tion having regard to the above observains.
Kane Bable v. Antaji Gangadhar

I. L. R. 11 Bom.55
Ahmed v. Moro Keshav

I. L. R. 11 Bom. 461 ^te

48. ^^^ Suit a

Mahomedan for partition, of joint properti/.
127 of the Limitation Act (XV of
applies to a suit by a Mahomedan for par: ...
of joint family property. Bavasha v. Mastbi a
I.L.R. 14 Bor70

49.

Joint

property — Suit by Mahomedan heir for his -
an undistributed estate. The words " joint ;
property " in Limitation Act, 1877, Sch. II
127, are intended to refer to joint t
property in the Hindu sense of the teru -i
Mahomedan sued as heir in 1888 to rever
his share in the property of his grandff^er,
which had been enjoyed jointly by his descen
from his death, which occurred in 1840, ".
a recent date. It did not appear that the i
was governed by any special custom j^
that the suit was not governed by Art. 127
Limitation Act, and was barred by limit _
Patcha v. Mohidin . I. L. R. 15 Ma :'
I. L. R. 15 Ma 60

Mai'

family — Redemption of mortgage by some co-
— Possession by such co-sharers after redew
Subsequent claim to property by other co-
The possession by a Mahomedan co-sharer
perty which he has redeemed from a mortga
not become adverse to the other co-sharu!
some exclusive title is set up. Ramchandi'i
vant V. Sadashiv Abaji, I. L. R. 11 Bom. i--—.
Bhaudin v. Ismail, I. L. R. 11 Bom. 426, re w
to. Faki Abas v. Faki Nurudin „,

I. L. R. 16 BoiilSi

Kasmi v. Ayishamma
50.

( 7257 )

DIGEST OF CASES.

( 7258 )

I MITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

_, Art. 127— contd.

i L Suit by MaJio-

ffl'an? jor possession by right of inheritance of
a, M in the property of their deceased ancestor.
1 words " joint family property " in Art. 127
0 ch. II of the Limitation Act (XV of 1877) mean
" e property of a joint family". Hence the
p od of limitation prescribed by that Article of the
L itation Act will not apply to a case in which
tl members of a Mahomedan family are suing for
p session by right of inheritance of shares in
ii oveable property alleged to have been that of
tl I eceased common ancestor of themselves and
8<eofthe defendants, and of which they allege
tl • had been dispossessed by the defendants.
hasha v. Masumsha, I. L. R. 14 Bom. ,U,
tLinted from. Amme Raham v. Zia Ahmad

j I. L. R. 13 All. 282

— Joint family pro-

LIMITATION ACT (XV OF 1877)-

Sehedule 11— contd.
Art. 127— contd.

:ontd..

;,i V — Suit by Mahomedan for possession of share by
ii\rilance. Art. 127 of f^ch. II of the Limitation
A (XV of 1877) does not apply to a suit by
M' omedan for possession by right of inheritance
Qt.iarcs in the property of their deceased ancestor.
MioMED Akram Shaha v. Anaebi Chowdheaxi
1 I. L. R. 22 Calc. 954

3, , " Joint family

phfrty " — " Exclusion " /row?, such property. A

Miiomedan family consisting of three brothers and

t:r uncle jointly owned certain immoveable

.• which the uncle managed. Two of the

effected a settlement of accounts with the

;th reference to the profits of the estate;

ttjsbare of the three brothers was appropriated ;

ai| the money representing that share was

dosited with the uncle. Subsequently the

tij who had effected the settlement w ithdrew

tljr portion of the common share, and the third

biiher sued the uncle to recover a sum of

01, eyas his one-third portion. He alleged that

h' had been deceived by the defendant into

iM'-' that his portion was included in the

- « ithdrawn by his brothers ; but he did not

■ suit upon any allegation of fraud. It was

•d that Art. 127, Sch. II of the Limitation

V of 1877), apphed to the suit, limitation

^ from a date whereon the defendant had

^ijca all hability in respect of the plaintiff's

dt.and •.—Held, that the amount claimed could not

"ipr the circums ances, be regarded as joint

lajiy property, that the defendant's denial of

tbjplaintig's right to recover that amount was not

«jXclusion of the plaintiff from such property,

ai that consequently Art. 127 did not apply to the

"Uj Ahmed Au^Khan v. Hus.mn Ali Khak

L L. R. 10 All. 109

Limitation Act,

Partition suit for share of

». 1, d. 1,3
M family estate— failure to prove participation
'» e family co-parcenary within the period. In
» It brought m 1881 for a share'ol joint family

estate, the question whether the plaintiff's right
to sue was barred by hmitation under Act XIV"
of 1859, s. 1, cl. 13, depended on whether there
had been any participation of profits between
the plaintiff's father and the defendants, who
with him were co-descendants from a common
ancestor, after 1837 down to \\hich year the
family was certainly joint. If in 1871 tbe per'od
of limitation had expired, the Act IX of that year
and the later Acts need not be referred to ; for, if
they altered the law, they would not revive the right
of suit. Upon the evidence it was found that
whatever might have been the father's intention
when he settled in another village in 1837, the effect
of what had been since done, or omitted on both
sides was that in due time the right of suit had be-
come barred under tlie first Limitation Act. Appa-
SAMi Odayar v. Stjbramaxya Odayar

I. L R. 12 Mad. 26
L. R. 15 I. A. 167

55. and Art. 131 — Pension, .-uit

for share of — Gift of pension, < ffect of, as
against right of heir by inheritance. A pension of
the nature described in Act XXIII of 1871 (Pensions;
Act), s. 7, cl. (2), was drawn by a Mahomedan, in
Avhose name alone it was recorded in the Govern-
ment registers, for himself and the other members
of his family who, up to the time of his death,
received the r shares Irom him. Shortly before
he died, he executed a deed of gift in favour of his
wife, which purported to assign to her the whole
pension. No mutation of names was affected in
the Government registers, but the deed of gift and
the sanads in respect of which the pension had
origmally been granted were handed over to the
donee. After the death of the donor, one of his
sisters brought a suit against his widow to establish
her right (i) to receive the share in the pension which
she had inherited from her father and received up
to her brother's death ;and(ii)as heirto her brother
himself, to the share which he had inherited. In
defence it was pleaded, inter alia, that the suit was
barred by hmitation : — Held, that it was doubtful
w hether in such a case and as between such parties
the Limitation Act would be applicable at all ; but
that, assuming it to be so, either Art 127 or Art. 131
of the second Schedule should be applied, and the
plaintiff having received her share within twelve
years, the suit was brought in time. Sahib-un-
KissABiBir.HAFiZABiBi. Hafiza Bibi r. Sahib-
TJN-MSSA BiBi . . I. L. R. 9 AIL 213

56. Tine does not

run until sharer excluded — Transfer of Property Act
{IV of ISS2), s. 6 (a) — Hindu Law, Reversioner —

' Renunciation of reversionary right is a transfer of an
expectancy and as such is void. A, a member of an
undivided Hindu family, was adopted by one V, a
widow. His adoption was declared invalid in
1883. He consented to reside with V, and in 1896
orall}' renounced his right to a share'in the property

! belonging to his natural family in "consideration of

7259 )

DIGEST OF CASES.

( 7260 )

LIMITATION A.CT (XV OF 1811)— contd.
Schedule II — confd.

Art. I'Zl—concld.

his co-sharers who were also the reversioners of V
renouncing the reversionary right in the properties
held by V as the heiress of her husband. In a suit
brought by A in 1901 for partition of the property
in his natural family : — Held, that ^4's res d ng with

F from 1883 to 1896 did not amount to an abandon-
ment by ^4 of his right to partition or to an exclusion
of A to his knowledge, from the enjoyment of his
family property and that his right to partition was
not barred by Art. 127, Sch. II of the Limitation
Act. Held, further, that the renunciation of their
reversionary rights by the reversioners amounted to
a transfer of an expectancy and was a nulUty under
s. 6 (a) of the Transfer of Property Act, and that
such renunciation cannot be a good consideration
ior a contract. Dhoorjeti Subbayya i: Dhoor-
jiTi Venkayya(1906) . I. L. R. 30 Mad. 201

57.

Suit by a Maho-

tnedan daughter to recover her share in her deceased
father's property/ — Limitation. Article 127, Sche-
dule II of the Limitation Act (XV of 1877) appUes
to a suit by the daughter of a deceased Mahomedan
to recover her share in his propert}^ Sayad
Gulam Husseiti v. Bib> Anvernisa, P. J. (1S85),
no. followed. Boo Fatma v. Boo Ghisanboo
(1909) . . . I. L. E. 33 Bom. 610

Art. 128 (1871, Art. 128 ; 1859, s.

1, eL 13)-
1.

Suit for mainte-

Suit to recover

maintenance. S. 1, el. 13, Act XIV of 1859
appUed to suits for the recovery of maintenance
whether the right to receive maintenance arose out
of the general law or out of a specific deed grant-
ing such maintenance. Bamasooxdery Debea v.
Shamasoondeey Debea . "W. R. 1864, 13

2. Suit for mainte-
nance. CI. 13, s. 1, Act XIV of 1859, did not apply
to a suit for maintenance, when the right to
receive such maintenance was not a charge on the
estate of a deceased person, but on the estate of
living person. Bixod Lall Chatterjee v.
LtrcKHEE MoxEE Debia . . 4 W. R. 84

nance. In a suit for maintenance, the cause of
action ordinarily arises at the time when the
maintenance having become necessary- is refused
by the party from whom it is claimed. S. 1, cl.
13, Act XIV of 1859, did not apply to all suits for
the recevery of maintenance brought by a Hindu
widow against her husband's family, but only to
suits in which the plaintiff seek^ to have her
maintenance made a charge on a particular estate.
TrujiAPPA Bhat v. Parmeshriamma

5 Bom. A. C. 130
4. Suit for mainte-
nance as charge on estate. The plaintiff sued the
defendants for future and past maintenance and
obtained a decree for future maintenance and for

LIMITATION ACT (XV OF 1877)— cof*

Schedule II — contd.
Art. 128— conii.

arrears of maintenance for seven years, 'he

parties were governed by the AUyasantana law It

was found by the lower Appellate Court thafoi

[ twenty years before the suit the plaintiff -ed

: .apart from the defendants and the iiei

, members of the family, and supported h<eli

I without receiving or applying for anylne

I towards her maintenance out of the ftilj

property in the possession of the defendant oi

obtaining any recognition of the right to ^lin

; tenance. On special appeal : — Held, per Scot Vd

G.J., that, assuming the AUyasantana law ipg.

I nizes the right of the plaintiff to enforce sepatc

i maintenance as a charge upon the estate. Ae

! plaintiff's claim was barred by s. 1, cL 13ki

XIV of 1859. Per Collett, /.—It is doufal

whether cl. 13, which appUes to cases where :he

! right to receive maintenance is a charge OE;he

: inheritance of any estate, appUes in a i3«

I where the right of the plaintiff is said to exi bj

I reason of her being a co-proprietor with thele.

I fendants. If the suit be not w thin cl. 13, lec

it was one to recover an interest in immovbk

property, and was equally barred by cl. IS o . 1

Abbakktj i;. Ammtj Shettati . 4 Mad.S'i

j Sttbramasta Mttdaliar v. Kaliaxi Amma)

i 7 Mad. 26

Suits for maintenance not chargeable on-ny

estate were governed by cl. 16 of s. 1 of the i: oi

1859 ; the cause of action in such cases did nolriw

j until there had been a demand and a real

I Kalo Xilkanth v. Lakshmibai

i I. L. R. 2 BomiS'J

5. Hindu unco—

Maintenance. With regard to the widow's :lit
to maintenance, a statute of Umitation wou do
much harm if it should force widows to claim eir
strict right and commence Utigations whic' '
for the purpose ot keeping aUve their claim,
not be necessary or desirable. A Hindu, di-
of his estate by will, expressed his hop
his wives and son would all Uve amicably t
after his death, and wouLi aU look up
eldest son as the head of the fanii!
then bequeathed the whole of his prop
his eldest son, directing him to provide :
(the testator's) widows, and for the
members and defendents of the family, a:
declared that he mads these provisions
view to prevent dissensions in the famUy, r
enable them to Uve in peace and harmony af ;
decease. In a suit brought more than j;
years after the death of the testator by one >
widows against the eldest son to recover ma ■
ance it was pleaded for the defendant that tht
was barred by Umitation under cl. I-!, s. 1
XIV of 1859, which provides that suits f^:
recovery of maintenance, when the right to re^"
such maia tenance is a charge on the inheritai: oi
any estate must be brought within twelve art

( 7261 )

DIGEST OF CASES.

( 726

IMITATION" ACT (XV OF 1817)— contd. LIMITATION ACT (XV OF 1877)— confi.

Schedule II — cojiid.

Art. 128— concld.

jm the death of the person on whose estate the
liintenance is alleged to be a charge -.—Held, that
e testator had not created by his will a specific
,arge on the inheritance of lus estate within the
?aning of the provision of Act XIV of 185(1, but
d merely imposed upon the defendant an obliga-
•)n, in case the will should interfere \\ith the
iinarj- Hindu law entitling his widow to main-
aance, to make allowances for their support of a
id analogous to that which the law would have
.dvide'J. Ueld, also, that, although there was no
1 fence of a specific demand for maintenance,
Ijro was ground for believing that the main-
iiance had been withheld under circumstances
>ioanting to a refusal, giving rise to a cause of
tion. Nakayaxrav Ramchaxdra Paxt v.
VMARAi . . . I. L. R. 3 Bom. 415
L. R. 6 I. A. 114 : 6 C. L. B. 162

.8. Suit for arrears

i, maintenance. In suits coming within the
uration of the Limitation Act, IX of 1871,
1|t widow might recover arrears for any period
i(less it appeared that there had been a demand
■||i refusal, in which case she could rocover
Hears for twelve years only from the date of
t h demand and refusal. Tivi v. Ramji

i I. L. R. 3 Bom. 207

|f-

^ arrears of maintenance charged upon imnvove-

«jj property. An allowance for the maintenance

cja younger member of a family was charged

on the inheritance to which the eldest male

Timber alone succeeded : — Held, that a suit for

i^ears of such maintenance Avithin twelve years

Y Nvithin time under Act XV of 1877. Ahmad

IjSSEiN Khan v. Xila-xtd-dix Khan

' I. li. R. 9 Calc. 945

13 C. li. R. 330

L. R. 10 I. A. 45

Suit for arrears

i^naintenance — Suit on decree specifying no date for
ymetU of future maintenance. A Hindu widow
olained a decree in 1876, which provided that
■I should receive future maintenance annually
«la certain rate, but did not specify any date on
v'chit should become due. In 1877* she filed
ti present suit claiming arrears of manitenance at
*i rate fixed in the decree of 1S76 : -Held, that the
Bjididnot lie. Sahhanatha Dikshatar v. Subba
^Wihmi Ammal, I. L. R. 7 Mad. ^n, distinguished.
''iNKANA r. AiTAMMA . I. L. R. 12 Mad. 1 83

\ Art. 130 (1871, Art. 130. 1859,

i 1, cl. 14)-

See Onus op Proof -Restjmption and
Assessment. . 3 W. R. 69 ; 182

|I. 14 of 8. 1 of the Act of 1859 applied to suits to
"IJiie or assess lands held rent-free subsequent

Schedule II — contd.
Art. 130— contd.

to the Permanant Settlement, 1790. Krishto
Mohun Doss Bukshee i\ Joy Kishen Mookerjee

3 W. R. 33
Dhxjnput Singh v. Boojah Sahoo

4 W. R. 53

Suit for rcump-

and Arts. 130 and 132— Suit | 3

tion. Under Act XIV of 1859, a zamindar could
not resume land, whether lakhiiraj or not, held from
before 1790. Even an auction purchaser was barred
by limitation if the raiyat could prove that the
land was in the possession of those through whom
he claimed before 1790. Radha Kjsto Mytee r.
Bhugwan Chunder Bosb . 1 W. R. 248

Seisteedhtjb Samcnt v. Romanath Rokhit

6 W. R. 58

Khelttt Chunder Ghose v. Pooeno Chunder
Roy 2 W, R. 258

2. _ • Suit for land as

part of mat tenure — Ca^ue of action. The cause
of action in a suit for land as part of the
plaintiffs rnnl tenure which land the defendant
is holding on an invaUd lakhiraj tenure, arises
when the defendant first begins to hold the land
in dispute rent-free. Furlong v. Kusroo
MuNDUR . . . 7 W. R 531

See Baroda Kant Roy v. Sookmoy Mokerjee
1 W. R. 29
Suit to recover

j portion of zamindari granted not in accordance
I with Mad. Reg. XXV of 1S02. The appellant, a
zamindar, sued to recover a portion of the
zamindari granted by his grandfather upwards of
forty years ago, upon the ground that the grant
was not made in conformity %nth the require-
ments of R'^gulation XXV* of 1802, and that,
in the absence of the observance of the formahties
there prescribed, the grant was void : — Held,
that more than twelve yeai-s having elapsed
since the title accrued to the person under
whom the plaintiff derived his right to resume, the
appeal -h >uld be dism -sed. S. 1, cl. 14, of Act
XIV of 1859, considered and applied. Seta Rama
Kristna Rayudappa Ranga Rao i: .Jagunti
SiTAYAMMA Garu ... 3 Mad. 67

Ali
hulu

aB V. Sanyasiraj Peddabauvara Sim-
3 Mad. 5

See Krishna Devu Garu r. R4M(H-\ndra
Devu Maharajulu Gabu . . 3 Mad. 153

4. Suit for renump-

tion by darpatnidar — Cause of action. In a suit
by a darpatnidar for the resumption of land
alleged to be held as lakhiraj under an invalid
title, limitation must be calculated, not from the
date of the creation of his dar-patni title,
but from that of possession of the party from
whom the patnidar originally derived his title.
Gungaram Chowdhry t'. HuBBE Nath Chowdry
15 W. R. 436

( 7263 )

DIGEST OF CASES.

( 7264 )

LIMITATION ACT (XV OP 1877)— conii.
Schedule II — confd.

Art. 130— contd.

And so if he is an auction-purchaser. BusSEER-

OODDEEN V. ShIBPERSHAD ChOWDHRY

W. R. 1864, 170

NXRUNJUX ACHARJEE V. KURALEE ChURN Ba>JER-

JEE 1 W. R. 197

Or a purchaser from Government : his cause of
action dates from the time Avhen the right accrued
to the Government. Bunnoo v. Ameerooddeek
23 W. R. 24
5. ■ Suit for assess-
ment of rent after resumption of lakhiraj lands. A
got a decree against B, which declared that certain
lands in S's possession, alleged to have been
lakhiraj lands from before 1790, were ^'s mal lands
and liable to assessment. More than twelve
years after the date of this decree, A sued to
assess the lands : — Held (affirming the decision
of ArxSLiE, J.\, that the suit was not barred by
the provisions of Act IX of 1871, Sch. II, Art.
130. Protab Chunder Chowdhry v. Shukhee
SOONDABEE Dassee . 2 C. L. R. 569

i^ervice tenure —

Assessment of rent by Settlement Officer. In a suit
against the Talukhdari Settlement Officer, who
had assessed rent-free land on the ground that it
had been granted for service, and that service was
no longer required : — Held, that, if the grant was
the grant of an office remunerated by the use
of land, the right to assess was barred by the
possession of a person not claiming under the
grantee for a longer period than t-nelve years after
the right to resume accrued under Act IX of
1871, s. 29, and Art. 130, Sch. II. Keval Ktjber
V. Talitkhdari Settlement Officer

I. L. R. 1 Bom. 586

7. and Arts. 121 and 149—

Resumption and assessment of lakhiraj land. Dis-
cussion of the law of limitation as apphcable to the
resumption and assessment of lakhiraj lands.
Koylashbashiny Dossee v. Gocoolmoni Dossee
I. L. R. 8 Calc. 230 : 10 C. L. R. 41

8, Suit for assess-
ment of rent on lakhiraj land after decree for
resumption — Effect of decree as creating or not
relationship of landlord and tenant. The plaintiif
brought a suit inlS61 against C for resumption of,
and for declaration of his right to, assess rent
upon, C"s lands within his zamindari which C
held as lakhiraj. That suit was presumably
instituted under Regulation II of 1819, s. 30,
which related only to resumption of lakhiraj
lands existing prior to 1790, but there was
nothing to show conclusively under what law
it was instituted, or whether the lakhiraj grant was
one subsequent or anterior to 1790. In that suit
an exparte decree was passed in 1863 that " the
suit be decreed and the land in dispute be declared
to be shukur," i.e., liable to assessment. In a suit
brought in 1886 against the representatives of C

LIMITATION ACT (XV OF 1877)-ccm<d
Schedule II — contd.

Art. 130— concld.

after serving a notice upon them to pay rent ■
the land at a certain rate, to assess the land at • >
rate mentioned in the notice, and for the recovi
of rent at that rate : — Held, that the decree of If ;
had not the effect of creating the relationship t
landlord and tenant between the parties, and thf •
fore the suit, not having been brought ^vithin twe )
years from the date of that decree, was barred ;
Art. 130 of the Limitation Act (XV of 1877). s
Chundeb Manikya v. Rajmohun Goswami

I. L. R. 16 Gale. 4)

9. Suit for ast •

ment of rent on lakhiraj land after decree, 'r
resumption — Effect of decree as creating or >l
relationxhip of landlord and tenant. The plaiii
in 1862 obtained a decree for resumption f
land held under an invaUd lakhiraj title cre^d
before 1790, the decree declaring the Id
liable to assessment. In a suit brought E-e
than t\AeIve years after the decree against lo
representatives of the defendant in the it
of 1862 to assess the land : — Held, that the de «
of 18G2 did not create the relationship of land d
and tenant between the parties, and that the it
was therefore barred under Art. 130 of the Lin i»
tion Act (XV of 1877). Nil Komal Chtjcji-

BTJTTY I'. BiR ChUNDER Ma>T[KYA

I. L. R. 16 Calc. 450 i
Art. 131 (1871, Art. 131)—

Cause of act>

Suit for turn of tvorship of an idol. The plaiiff
sued the defendants for a declaration of his riglto
a turn of worship of an idol for seven-and-a-half ys
in each month, alleging that the defendants, lO
were entitled to another turn, had in 1864 t >■
adverse possession of the idol and properties 1
ing to it, and had so deprived him (the plaini
his turn of worship from that time : — Held, tha •»
cause of action did not recur as the turn of woiip
came round. Such suit fell within the operatilof
cl. 16, s. 1 , Act XIV of 1859. Gacb Mohaj* C V
dhry v. Madai^^ Mohan Chowdhry

6B. L. R. 352: 15 W. 129

2. ■ Bight to ex'

worship of idol — Right to turn of tvorship. In
brought in 1875, in which the plaintiff cla
as heir of her husband, a share in a certain t;
together with exclusive right of worship of a
A, and the right to the worship of an idol B, f"
sixth of every year, from the possession and <
ment of which she alleged she had been d
sessed by the defendants in 1866 -.—Held, thiJici
claim as to the idol B came under the provisi of
Art. 131 of Act IX of 1871, and was not b83d;
but as to J, the claim was governed by Art. **ot
the same Act, and, not having been preferred'-'"^
six years, was barred by lapse of time, l^^'
Chundeb Roy v. Monmohini Dassi _.

L L, R. 4 Calc 385

( 7265 )

DIGEST OF CASES.

( 7266 )

LIMITATION ACT (XV OF 1871}— contd.

Schedule II— conid.
I Art. 131— contd.

I 8 Won hip of idol—

Turn of worship — Recurriny right. A suit for a jjala
ir right to worship an idol in turn, is a periodically
recurring right within the meaning of Act XV of
1877, Sch. II, Art. 131. Eshan Chmider Roy v.
Mcnvichini Dassi, I. L. R. 4 Calc. 6S3, followed-

iGOPEEKISHAN GOSSAMY V. ThAKOORDASS GoSSAMY
I. L. B. 8 Calc. 807 : 10 C. L. R. 439
4. Suit to recover

■rial fees — Cause of action. In a suit to recover
lurial fees, the right to which occurred whenever a
lorp&e was brought for burial, the period of limita-
jion was held to be twelve years from the date of the
jrst refusal of the enjoyment of the right. Bahar
HAH V. Pebo Shah . . .24 W. R. 385

1 5. ■ -_ Claim for monthly

Uowance from zamindari — Demand and refusal —
ecurring right. S, being entitled to a monthly
lowance from a zamindari under an agreement
ited 1861, died in that year. In 1807 K, his
fuior widow, claimed the allowance ; the zamindar
. imtended that the allowance was personal to S,
id d'-d not descend to his heirs. K obtained a
iicree. In 1864 R, the junior widow of *S', sued K
establish the right of her son 31, to succeed to
le estate of S as his son and sole heir, and obtained
decree from the Privy Council in 1871. In 1872
demanded and was refused the allowance from
■;3 zamindari. In 1875 M came of age, and in
t79 brought a suit against the zamindar to estab-
•fa his right to the allowance : Held, that the
iim by J/ was not barred by limitation. Ram-
Zamindab v. Dorasajvii

I. Ii. R. 7 Mad. 341

LMESDAR OF RaMNAD V. DOEASAMI

L Ii. R. 7 Mad. 341

— Execution of

ee for maintenance — Decree for payment of an
uittj without specifying date of payment — Default
paying such annuity — Enforcement of paymejit by
ei^ution of decree — Computation of time. A Hindu
Vjlow obtained a decree, dated 7th September
i 5, directing that a sum of R3G should be paid to
h every year on account of her maintenance.
Js judgment -debtors paid the annuity for some
yrs. In 1881 the widow applied for execution
Oihe decree and recovered three jears' arrears.
Ij .885, payments having again fallen into arrears,
slj again apphed for execution, but her apphcation
w, rejected as barred by limitation, having been
ii'le more than three years after the last preceding
«|)Ucation :—H(ld. that the appl-caticn "was not
tie- barred. The decree created a periodically
narring right. Though no precise date was spe-
c>|d in the decree for payment of the annuity, the
^^p™e»t-debtors were hable to make the payment
o>|he day year from its date, and henceforward on
".corresponding date year after year. The decree
*| aa to each year's annuity, to be regarded as

! VOL. m.

LIMITATION ACT (XV OF 1877)^on<<i.
Schedule II— contd.

Art. 131— conid.

speaking on the day upon which for that year it
became operative, and separately for each year.
The right to execute accruing on a particular day,
limitation should be computed from that day should
the judgment -debtor fail to obey the order of the
Court. Sakharam Dikshit v. Ganesh Sathe, I. L. R.
3 Bom. 193, followed. Sabhanatha Dikshatar v.
Suhba Lakshmi Am^nal, I. L. R. 7 Mad. 8o, and
Yusuf Khan v. Sirdar Khan, I. L. R. 7 Mad. S3,
distinguished. Lak.shmibai Bapuji Oka v.
Madhavrav Bappji Oka I. L. R. 12 Bom. 65

Declaratory decree

for share of rents and for mesne profits— Periodical
payments. A decree declaring that the plaintiff was
entitled to receive every j-ear from the defendant
12 per cent, of the rents and profits of a certain inam
village, and awarding mesne profits from the date of
suit, was held not to be an award of a periodical
payment in aternum. The very M-ord " mesne "
imphes a terminus ad quern as well as a quo, and in
the absence of a special order the terminus was the
date of the decree. Vinayak Amrit j\ Abaji
Haibatrav . . I. L. R. 12 Bom. 416

and Art. 132— C7fl(/« /c

of revenue by grantee from Government. The right
to the revenue on certain land having been granted
to the trustees of a mosque, the said grant was
confirmed by Government in 1866. In 1883 a suit
was brought to recover arrears of revenue from
the owners of the land. It was found that no pay-
ment of reveniie had ever been made by the de-
fendants to the plaintiff, and the suit was dis-
missed as barred by limitation under Art. 144, Soh.
II of the Limitation Act : Held, that the suit was
not barred, and that the plaintiff was entitled,
under Arts. 131 and 132 of the Limitation Act, to
recover twelve years' arrears of rcvciuie. Ah'bi
V. KuNHi Bi . . I. Ii. R. 10. Mad 115

9. and Kvt. Q'2,—Suit to establish

title to a share in an annual allowance arid also to re-
cover arrears. A suit by a co-sharer to establish his
title to a share in an annual allowance received by
the defendant from Government is one falling under
Art. 131, and not 144, of the second Schedule of the
Limitation Act (XV of 1877). The plaintiffs sued
to establish their title to a half share in the desh-
mukhi allowance annually received by the defend-
ant from the Mamlatdar's treasury, and also to
recover six years' arrears. Both the lower Courts
found that the plaintiffs had not received their
share of the allowance at any time within twelve
years before suit, and therefore rejected the plaint-
iffs' claim as time-barred : — Held, in second appeal,
that the plaintiffs' claim for a declaration of their
title to the allowance was governed by Art. 131 of
the Limitation Act, under which Article it would
not be barred by the mere fact of the plaintiffs' ex-
clusion from enjoyment of their share for twelve
\-ears before suit, unless it were shown that such

10 Y

( 7267 )

DIGEST OF CASES.

( 7268 )

XilMITATION ACT (XV OP 1811)— contd.
Schedule II — contd.

Art. 131 — concld.

•exclusion was the result of refusal made upon a
demand. The period of twelve years provided by
that article would run from the time when the
plaintiffs were first refused the enjoyment of the
right. Held, further, that the claim for arrears of
the allowance fell under Art. 62 of the Limitation
Act. Held, also, that, if the claim for a declaration
of t'tle to the allowance were barred, the claim for
arrears would also be barred. Raoji r. Bala

I. li. R. 15 Bom. 135

10.

and Art. 132— Kattubadi-

Reciirring right — Madras Bent Recovery Act (Mad.
Act VIII of 1S65), s. 7. In a suit by a zamindar
against the grantee of an inam to recover arrears
of kattubadi, it appeared that no payment had
been made in respect of kattubadi for a period of
twelve years before suit. The suit was dismissed in
the Court of first appeal on the findings among
others (i) that the plaintiff had not proved his
right to the kattubadi, and (ii) that his right to
it, if any, barred by limitation. On second
appeal by the plaintiff : — Held, that the above
findirgs should be accepted and the second appeal
dismissed. Alubi v. Kunhi Bi, I. L. R. 10 Mad.
115, distinguished. Ramchandra v. Jaganmohana.
I. L. R. 15 Mad. 161

Art. 132—

See Account . I. L. R. 35 Calc. 298
A^ee Contribution, suit for — Payment
OF Joint Debt by one Debtor.

I. Ii. R. 26 Mad. 686
See Hindu Law — Alienation.

I. L. R. 34 Calc 184
/See Limitation . 10 C. W. N. 151

See Lis pendens.

I. L. R. 31 Calc. 745
See Mortgage . 9 C. W. N. 989
See Transfer of Property Act, s. 9,5.

I. L. R. 26 All. 227

LIMITATION ACT (XV OF l877)-eon(i

Schedule 11— contd.
Art. 132— contd.

1- ■ Malikana — Re-

curring cause of action. Held (by Glover, J.), that
malikana is rent under Regulation VIII of 1793 ;
that a cause of action for recovery of arrears of mali-
kana is a recurring cause of action ; and that failure
to recover arrears for more than twelve years would
not bar the right to recover for such period as has
not been barred by the Statute, cl. 16, s. 1, Act XIV
of 1859,— that is, for a period of six years. Held
(by Kemp, J.), that the suit was barred, as no mali-
kana had been paid for more than twelve years.
Bhidi Singh v. Nehmu Behu, 3 Ap. 102: 12 W. R.
46 Held, on appeal, that a suit for the recovery of
malikana was barred by limitation if the mali-
kana had not been received for a period of twelve
yea,rs. Bhuli Singh v. Nehmu Behu

4 B. L. R. A. C. 29 : 12 W R. 498

Badurul Huq v. Court of Wards

10 W. R. 302
Chummun v. Om Koolsoom . 13 W. R. 485
(Contra) Government v. Rhoop Naratn Singh

2 W. R. 162
Heeranund Sahoo v. Ozeerun 6 W. R. 15]

Reversed, however, on review,
Heeranund Sahoo

in Ozeerun v
1 W. R. 33(

Where it was held that the twelve years' limit;
tion applied, but that s. 1, cl. 13, of the Limitatio,
Act was applicable.

On a second review in Heeranund Sahoo i
Ozeerun . . . . 9 W. R. 10

cl. 12 of s. 1 was held to apply to the case

2. Malikana — Ir

terest in land. Malikana is an interest in land con
ing under Act XIV of 1859, s. 1, cl. 12, and tl
right to recover it ceases when it is left as an ui
claimed deposit in the Collector's hands for tweh
years. Gobind Chunder Roy Chowdhry v. Rj
Chunder Chowdhry . . 19 W. E. (
Kbishto Chunder Sandel Chowdhry v. Sh.\^
SooNDUREE Debia Chowdhrain 22 W. 5'

3. Payment of mc

hana by one of joint holders. A payment by one
two persons holding land jointly of malikana on :
count of the joint land saves the operation of i)
limitation as against both of them. NuRSlNJi
Narain Singih v. Ameerun . 22 W. R. Ei.

4. Malikana wp

muted from payment in cash to set-off against r<;.
Where an arrangement has been effected by whi
malikana is to be paid, not in cash, but as a set!
against the rent payable, to be deducted therefrc-,
and it is not shown that the right to such malika
has been alienated, the fact of its not having bfl
paid in cash for twelve years is not a bar to
claim of the maliks for the malikana. ^
Ahmud v. Nehal Singh . . 21 W. H

5. . Suit for malil:

Malikana is an annual recurring charge on imm^
able property, and may be sued for within tw"C
years from the time when the money sued f'"
comes due. Hurmuzi Begum v. Hirdaynak a
I. Ii. R. 5 Calc. 921 : 6 C. L. E

Suit for rcf

of hak — Immoveable property. In suits for rec
of haks, which are of the nature of claims of in
charged upon or payable out of land, the peri'
limitation is twelve years. Bharatsangji -
sangji v. Navanaidharaya Mansukhram

1 Bom.88

See FUTTEHSANGJI .l-SWANTS.iNGJI V. I?*'

Kulliankaiji Hakoomt-iraiji -,

13 B. Ii. R. 254 : 10 Bom-oi
Ii. R. 1 I. A. 34 : 21 W. B 7»

(( 7269 )

DIGEST OP CASES.

( 7270 )

LIMITATIONJACT (XV OF 1877)- co»?d.
Schedule II — co7htd.

.. Art. 132— cowid.

Overruling decision in Fatessanj

.iil.YANRAJA

Desai
4 Bom. A. C. 189

' But see Kaiju Manor v. Desai Kui.uankai
JpKMATRAi ... 6 Bom A. C. 56

vhich was held to be a case of a hak not charged on
|and.

j 7. ^- Suit hy hikdar

hgainsl original grantee — Suit hy sharer of hak
, 'ainst another — Desaigiri allowance. Art. 132, S3h.
i 1 of the Limitation Act (IX of 1871), apphes to suits
i-hich are brought by a hakdar against the person
.■riginally liable for payment of the hak, and not to
luits by one sharer in a watan against another
harer or alleged sharer who has imjjroperly received
,he plaintiff's share of the hak. A suit of the latter
;.escription is a suit for money received by the
efendant for the plaintiff's use, and the period
f limitation is three years as prescribed by Art.
0 of the Act. Harmukhgauri v. Harisukh-
RASAD . . . I. L. R. 7 Bom. 191

Bond charging

nunoveablc property — Enforcing bond by demanding
\atjmejd as if secured by collateral mortgage of land.
Vhere a suit was brought upon a bone! to secure the
■ayment of principal and interest, and the relief
aught was that payment of principal and interest
light be enforced, both as a simple contract liabdity
md a debt secured by a collateral mortgage of im-
■loveable property : — Held, that the suit was one
)r the recovery of an interest in land under s. 1,
!. 12, Act XIV of 1859, and was not barred for
.velve years. Kristna Row v. Hachaha Sugapa
2 Mad. 307

Chetti Gaundan v. Suxdaram Pillai

2 Mad. 51

BLaundan I'. MuTTAMMAL . . 3 Mad. 92

OoMR.\o Begum v. Kiiooseram

1 W. W. 181 : Ed. 1873, 260
JoNKA Venkata Sawmy alias \'exkatasktti
Basireddy Koxdareddy . 5 Mad. 364
id SuRw.vR HossEiN Kjian r. rUlOLAM ]\Iaiio-
BD . B. Ij. R. Sup. Vol. 879

8.C. SURWAX HoSSEIN V. GhoLAM MaTIOMED

9 W. R. 170

Overruling Parush Nath Misser v. Bixdaii .\li
6 W. R. 132

The cases of Gora Chaxd Dutt )'. Lokenath
UTT . . . . 8 W. R. 334

Kadarsa Rautan v. Raviah Bibi 2 Mad. 108
Seetxtl Singh v. Sooruj Buksh Singh

6 W. R. 313
id Lyster v. Kg Mihone . 7 W. R. 354

ay also be considered as overruled.

LIMITATION ACT (XV OP 1877)-

Sehedule II— conld.
Art. l3Z—contd.

zontd.

9. Bond — Instrument

creating interest in immoveable property. B, having
borrowed money from A, executed in his favour
a bond (which was afterwards duly regi.stered in
which he engaged to repay the amount with in-
terest on a day named, and h3'pothecated certain
lands by way of security, with a condition that, in
the event of the said lands being sold in execu-
tion of decree before the day fixed for repayment, A
should be at liberty at once to sue for the recovery
of the debt. Before the term for repayment
expired, the mortgaged lands were sold in execution
of a decree obtained by another creditor on a second
bind made by B sub.sequently and subject to the
bond made to A. In a suit by .4 against B and the
purchasers of the lands at the execution-sale, A
charged B personally, and also sought to realize the
amount due on his bond by the .sale of the mort-
gaged lands : Held, that the claim was in substance a
suit for the recovery of immoveable property, or of
an interest in immoveable property, within the
meaning of cl. 12, s. 1, Act XIV of 1859, and
consequently was governed by the twelve years'
rule of limitation therein provided, and not by
the rules provided by cb. 10 and 16 of the same
section. Semble : Although A wa^, at liberty to sue
from the date of the sale of the land-=, limitation
did not run against his claim from that date, but
only from the date fixed in the bond for repay-
ment. JUNESWAR DaSS V. MaHABEER SiNGH

I. L. R. 1 Calc. 163 : 25 W. R. 84
L. R. 3 I. A. 1

10. ■ Suit for money

charged on immoveable property. R obtained a
decree on a bond hypothecating certain immove-
able property and a declaration of his lien on the
property, and attached the property in execution of
the decree as the property of his judgment-debtors.
M, who was in possession of the property as pur-
chaser in execution of a decree to which she was no
party, objected to the sale, and obtained an order
from the Court executing the decree for releasing it
from attachment, under the provisions of s. 246,
Act Vlll of 1859. R sued to enforce his lien, refer-
ring in his plaint to the order as the cause of action,
but not alleging that the order was illegal, nor suing
to set it aside. Art. 15 of the second Schedule of
Act IX of 1871 could not be made applicable to the
suit. It was a suit for money charged on immove-
able property to which Art. 132 of the Schedule ap-
plied. Radho Paxday v. Rup Kuar

7 N". W. 223

11. Charge on im-

moveable projKrty — Mortgage — Suit for money lent.
A lent B R99, and B executed a document on the
24th July 1881, whereby he agreed to repay the
amount with interest in the month of Baisakh 1289
F. S. (April 1882), and further agreed that, if he did
not pay the money as stipulated, he should sell his
right to certain land, and that A should take pos-

10 Y 2

( 7271

DIGEST OF CASES.

( 7272 }

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 132— co?itd.

session thereof, and that, after A took possession of
the land, no interest should be paid by him (B), and
that A should pay the rent of the landlord out of the
profits of the land without any objection. A insti-
tuted a suit on the 3rd August 1885 to recover the
B99 : — Held, that the document did not amount to
a mortgage, nor did it create a charge under s. 109
of the Transfer of Property Act, and that the suit
was barred by limitation, three years, and not
twelve years, under Art. 132 of the Limitation Act
being the pericd apphcable. Madho Misser v.
SiDH BiNAiK Upadhya alins Bena Upadhya

I. L. B. 14 Calc. 687

12.

Registered hypo-

thecation bond — Personal remedy barred after six
years. Art. 132 of Sch. II of the Indian Limitation
Act, 1877, by which a period of twelve years is
allowed to enforce payment of money charged on
immoveable property, refers only to suits to enforce
payment by sale of the property charged, and not to
a claim to enforce the personal remedy on a regis-
tered bond by which immoveable property is
pledged as security for the debt. Seshayya v.
Annajvima . . I. li. H. 10 Mad. 100

13. Suit for money

charged upon immoveable property — Instrument
purporting in general terms to charge all the property
of obligor — Maxim ' ' certum est quod cerium reddi
potest." The obhgor of a bond acknowledged
therein that he had borrowed R153 from the obligee
at the rate of Rl-8 per cent, per mensem, and
promised to pay the principal with interest at
the agreed rate upon a date named. The bond
continued thus : "To secure this money, I pledge,
voluntarily and willingly, my Avealth and property
in favour of the said banker. \^Tiatever property,
etc., belonging to me be found by the said banker,
that all should be available to the said banker. If,
without discharging the debt due to this banker, I
should sell, mortgage, or dispose of the property to
another banker, such transfer shall be void. For
this reason, I have of my free will and consent exe-
cuted this hypothecation-bond that it may be of use
when needed." The amount secured by the bond
become due on the 6th May 1879. The bond was
registered under the Registration Act as a docu-
ment affecting immoveable property, and the obli-
gor was a party to such registration. On the 9th
May 1885, the obligee sued the heir of the obligor
to recover the principal and interest due upon the
bond by enforcement of l.en against and sale of im-
moveable property belonging to the defendant :—
Held, that the words used in the bond as indicating
the property which was intended to be subject to
the charge were sufficiently specific and certain to
include, and were intended to include, all the pro-
perty of the obligor ; that this being so, the maxim
'^certum est quod certum reddi potest" applied ;
that the bond created a charge upon the immove-
able property of the obhgor in respect of the prin-

lilMITATION ACT (XV OF 1877)— con/,

Schedule II — contd.
Art. 132— contd.

cipal and interest in question ; that such pi -
cipal and interest were moneys charged upon -
moveable property within the meaning of Sch. !,
Art. 132, of the Limitation Act (XV of 1877) ; li
that, so far as the claim was to enforce payment f
such principal and interest by recourse to the -
moveable property of the obligor, the suit -,3
brought within time. Earn Din v. Kalka Prad,
I. L. R. 7 All. 502 ; Gauri Shankar v. Surju, I. L I
3 All. 276 ; and Tadman v. D' Epineuil, L. EO
Ch. D. 75S, referred to. Ramsidh Pandi \
Balgobind . . . I. Ii. R. 9 All. ]*

14.

Con-structiomf

will — Charge on immoveable property. A will d'l^
sing immoveables stated that the father of the ;-
visce had lent a sum of money to the testator, id
directed the devisee to repay the debt with inter,.
This was construed to be a charge on immoveabs,
and it was held that a suit, brought by the auctn
purchaser of the creditor's claim, to recover ©•
above-mentioned debt was within Art. 132 of e
second Schedule of Act XV of 1877, and, ha^g
been brought within twelve years from the ce
when the debt was so charged, was not barred v
time. Geish Chtjnder Maiti v. Anundomi
Debi . , . . I. L. R. 15 Calc. 8
Ii. R. 14 I. A. 7

15.

Purchase-ma >^,

Suit by vendor to recover. The defendants purchtd.
land from the plaintiff, and gave bonds for le
purchase-money. These bonds were not registel^
and were therefore not admissible in evidence -
Held, that the plaintiff as vendor was underio
necessity to rely on the bonds in order to establi a
charge m the property sold in respect of the un] d
purchase-money. Unpaid purchase-money i:a
charge on the property in the hands of the ven'^,
and the claim to enforce it falls under Art. 132, '(i-
II of the Limitation Act. Viechaxd LALCHAifl^
KuMAJi . . .1. L. R. 18 Bom.p

Ig. Suit for payrnt

of annuity. A plaintiff, whose right to recei-\ia
yearly payment out of the income of certain |>
moveable property had been settled by arbitra|'n
in the course of a suit in 1864, sued in 1890 tc^
cover from the then holder of the property arrts
of such allowance for two years preceding the .'|l.
The plaintiff alleged, but failed to prove, thajie
and his predecessor in title had received paynpt
of the allowance for the intervening years or anpi
them'.— Held, that the suit was not barredpj
limitation. Chagan Lai v. Bapubai, I. L. Ej>
Bom. 6S, followed. Gajpat Rai v. Chimman R--
I. Ii. R. 16 All. . »'

17. . Suit for kattuiH

— Whether kattuhadi is rent merely or constitut\<i
charge. The plaintiff sued for nossession of tl»

s granted by his predecessor to the ances|r3

of the defendants on the ground that the vi

( 7273 )

DIGEST OF CASES.

( 7274 I

LIMITATION ACT (XV OP 1811)— contd.
Schedule II — cont'l.

LIMITATION ACT (XV OF ISlD—contd.

Schedule 11 -contd.

Art. 132— corUd.

Art. 132— contd.

had been granted on service tenure, and that he
was entitled to resume them. He prayed in the
alternative for a decree for six years' arrears of
I kattubadi : — Held, that the plaintiff was entitled to
' a decree for only three years' arrears of ivattubadi.
ViziANAGRAM Maharajah v. Sitaraaiarazu

I. L. E. 19 Mad. 100

{Contra) Venkatarama Doss v. Maharajah of
ViziANAGRAM . I. li. R. 19 Mad. 103 note

21.

Intereit on morl-

18.

Suit for money

due on mortgage-bond— Money payable by i-n-stal-
merUs — Default in payment of instalment — Right to
sue for entire amount due on default of payment of any
^instalment. Where, by a mortgage-bond (hypothe-
icating immoveable property) executed by the
defendants, a sum of money was made payable
by four instalments, the plaintiff to be at liberty
in case of any default to sue either for the amount
'of that instabncnt or for the whole 'amount due on
itho bond : — If eld, that hmitation ran from the
late of the first defiu't- Sitae ChaxdNahar v.
HvderMalla . . I. Ii. B. 24 Calc. 281
1 C. W. N. 229

19.

Suit for money

cnt on mortg igi — Caii-<e of action — Bon I, cons-
ruction of. In a mortgage-bond, dated the 14th
lune 1876, it was stipulated that the money ad-
vanced should be repaid " in the month of .Jeyth
11289 Push, being a period of six years. ' ' The last
Hay of Jcyth 1289 answered to t;he 1st June 1882,
!ind the period of six years from the date of the
jwnd ended on the 14th June 1882. In a suit
prought upon the bond on the 12th June 1894 : —
\ield (Ameer Ali, J., did)iiante). that the money
|ued for became due on the 14th June 1882, and
jhe suit was in time. Rungo Bujaji v. Bahaji, I. L.
i!. 5 Bom. S3 ; Almas Banee v. Mahomed Ruja, I.
p. R. 6 Calc. 239 ; and Gnanasammanda Pan-
Varam v. Palaniyamli Pillai, I. L. R. 17 Mad. ill,
jCferred to by Beverley, J. Latibunnessa v.
)han Kunwar . I. L. R. 24 Calc. 382

Hypothecation-

ond for payment on certain date — On defaidt
xttfTtunt of intere-^t v:hole amount payable on demand
-Meaning of " payable on demand.'" Where a
ypothecation-bond provided for the repayment of
he principal sum on a certain date with interest in
he meantime payable monthly, and further provi-
ed that, on default in payment of interest, the
rincipal and interest should become payable on
emand : — Held, that the period of limitation pre-
;ribed by Art. 132 of the Limitation Act was ap-
licable, and that period began to run from the
ftte of the default. Hanmantram Sadhuram Pity

Bowlco, I. L. R. S Bom. '.61, and Hall v. Slowell,
L. R. 2 All. 32-2, distinguished. Perumal Ayyan

Alaoirisami Bhagavathar

I. L. R. 20 Mad. 245

I gage-bond. Where a mortgage-bond stipulated
: that interest at a certain rate should be paid an-
[ nually and there were no words limiting this liabi-
I lity to the time fixed for the payment of the prin-
I cipal, and where it appeared from the evidence that
I interest had been paid for several years after the duo
I date : — Held, that the interest was a charge on
I the property, and that the clai n for interest fell

under Art. 132 of the Limitation Act (XV of 1877).
' VithobaTimapShaxbhog y. Vioneshwar Gaxap

Hedge . I. L. R. 22 Bom. 107

22. -and Art. 120 — Suit on mortgage-

boivl to recover amount by sale of property — Personal
liability of mortgagor — Caute of action. By a mort-
gage-bond, dated the 28th Magh 1281 B.S. (9th
February 1875), it was provided that, if the mort-
gag irs shoull^fail to pay.tlie money s-cured th?reby
according to the terms thereof, the mortgagees
should immediately institute a suit and realize the
amount duo by sale of the mortgaged property, and

I that, if the proceeds of such sale should not be
sufficient to liquidate the debt, the mortgagees,
should realize the balance from the persons and

I other properties of the mortgagors. It was further
agreed that the principal and interest secured by
the bond should be repaid in the month of Magh
1282 (January-February 1876). In a suit instituted
on the 9th October 1882 upon the mortgage to re-
cover the amount duo by the sale of the mortgaged
property and the balance, if any, from the persons
of the mortgagors -.-Held, that the bond in question
provided for two remedies in one suit, and did nov
contemplate a second suit being instituted to re-
cover the balance from the persons of the mortga-
gors in the event of the first remedy against the
mortgaged property proving insufficient to pay the
debt i 1 full, and consequently that the cause of
action against the persons of the mortgagors ac-
crued upon the date on which the raortgagemone 7
became due : and as the suit was instituted more
than .six years after that date, the plaintiff's claim
was barred by limitation, so far as the personal
liability of the mortgagors was concerned. Held,
also, that Art. 132, Sch. II of the Limitation Act

I (XV of 1877), only refers to suits to enforce pay-
ment of money charged upon immoveable property
bv the sale of such propertv. Miller v. RrxuA
Nath MuLLicK . . l' L. R. 12 Calc. 389
See Chettar Mal v. Thakuri

I. L. R. 20 All. 512

23.

Suit to enforce

charge under mortgage-deed. Held, that a suit to en-
force the charge under a mortgage-deed is a suit of
the nature mentioned in cl. 12, s. i, and can be
brought at any time within twelve years. Koonj
Behary Lall r. Raj Nar.vix . 2 Agra 244

Maxnc Lall r. Pegue

9 B. L. R. 175 note : 10 W. R. 379

( 7275 )

DIGEST OF CASES.

( 7276 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II— contd.
Art. lS2—contd.

GOKALBHAI MULCHAND V. JhAVER ChATURBHTTJ

8 Bom. A. C. 61

24. Mortgage — /w-

iere^t — Charge on land. In suits to recover the
principal and interest of a loan secured by a mort-
gage of immoveable property, interest for twelve
years is recoverable by virtue of Art. 132 of Sch. II
of the Limitation Act, 1877. Davani Ammal v.
Ratna Chetti . . . I. L. R. 6 Mad. 417

25.

Money charged on

immoveable properly. The plaintiff held a mortgage
of certain immoveable property given to him by the
defendant to secure the repayment of a loan of
money with interest. The plaint stated the fact
of the mortgage, but prayed only a money-decree.
The mortgage contained a personal undertaking to
repay. The said mortgage was dated 16th Febru-
ary 1870, and the plaint in this suit was filed on the
28th April 1881. The plaintiff maintained that he
was not time-barred, as he had twelve years within
which to bring the suit under Art. 132 of Act XV of
1877 : — Held, that plaintiff was too late in bringing
a suit for a money-decree on the promise to pay
in the mortgage, inasmuch as the article referred
to was meant to apply to suits brought to enforce
against the property payment of ' ' money charged
upon immoveable property," and not, under any
circumstances whatever, to a suit for a mere money
decree. Pestokji Bezonji v. Abdool Rahiman

I. L. R. 5 Bom. 463

Mortgage — Suit

hy a mortgagee to recover debt from a mortgagor per
tonally — Money-decree. Art. 132 of the Limita-
tion Act, XV of 1877, Sch. II, is applicable to a suit
by a mortgagee to obtain a mere money-decree, to
which suit, therefore, the limitation of twelve years
from the time the money sued for becomes due ap-
plies. Pestonji Bezonji v. Abdool Bahiman, I. L. B.
o Bom. 463, overruled. Lallubhai v. Naran

I. L. E. 6 Bom. 719
27. and Art. 120— ;SV//e for arrears

of revenve — Lien of mortgagee on balance of sale-
proceeds — Transfer of Property Act (IV of 1882), s.
73 — Mortgage suit — Charge en proceeds of revenue
sale — Bevenue-paying estate — Act XI of 18i)9, s. 53.
When a mortgaged, property, being a revenue-
paying estate, is sold free from all incumbrances for
arrears of revenue, the lien of the mortgagee is
transferred from the property itself to the balance
of the sale-proceeds which remains after satisfying
the Government demand. The time within which
a suit can be brought to recover money charged on a
mortgaged estate is not therefore shortened by
reason of the estate having been sold for arrears
of Government revenue ; in such a case, a suit
brought by the mortgagee for satisfaction of the
mortgage-debt out of the surplus sale-proceeds will
be governed by Art. 132 of the Limitation Act.
Even if the original cause of action of the mortgagee

LIMITATION ACT (XV OF 1877)- conW.

Schedule II — contd.
Art. 132— coTj^d.

to enforce a charge on the mortgaged propert
be considered to cease when the property was sol
for arrears of revenue, and if it be considered tha
a new cause of action then accrued to him, so as t
entitle him to bring a suit for the recovery of th
surplus sale-proceeds. Art. 120 of the Limitatio
Act would apply to such a suit. Bam Din v. Kdl
Per sad, I. L. B. 7 All. 502 : L. B. 12 I. A. 12, ar
3Iiller v. Bunga Nath Moulick, I. L. B. .
Calc. 389, distinguished. Kamala Kant Sen
Abut. Baekat alias Habibulla

I. L. R. 27 Calc. 18

28. — Interest— Bo)

Beg. V of 1827, ss. 11 and 12— Act XXVIII
1855— Act XIV of 1870— General Clauses Consa
dation Act {I of 186S)—Damdupat—Bule. T.
mortgagor of an estate gave to the mortgagf
subsequently to the date of the mortgage, two st
cessive money- bonds, in each of which it was stip
lated that, if the amount were not paid on the d
date, it should take priority of the amount d
under the mortgage, and that redemption oi t
mortgage should not be claimed until the bond 1
been satisfied. The assignee of the equity of
demption sued for possession of the estate on pi
ment merely of the mortgage-money : Held, tl ■
s. 12 of Regulation V of 1827 is not in force. Tlf
section was repealed by Act XXVllI of 1855, s l-
and although the latter section was repealed <
Act XIV of 1870, the former was not restort
there being no express provision in Act XIV ^
1870 to revive it, as required by the General Clau.^
Act (I of 1868, s. 3). The question of the perl
for which interest was to be allowed was therefp
to be determined by Act XV of 1877, the Aclh
force at the date of the institution of this suit, jf.
132 of which applied ; but as the rule of damdujt
is not affected by Limitation Acts, the defends^
could not be allowed as interest more than p
amount of the principal on which it was to be pi-
Hari Mahadaji v. Balambhat Raghunath '
I. L. R. 9 Bom. !^

29. . —Suit by mortgU

to recover mortgage-money — Suit for money chajd
on immoveable property — Belief against the pef»
of mortgagor. In a suit by a mortgagee to enf N
the mortgage. Art. 132, Sch. II of the Limitak
Act, 1877, is not apphcable, so far as rehef agep*
the mortgagor personally is claimed. Lallvbh^-
Naran, I. L. B. 6 Bom. 719, dissented from. Ra(P*
BAR Dayal v. Lachmin Shankar L

I. li. R. 5AU.pi

30.

Periods re^

tively applicable to personal demands and to c/b"
charged on immoveable property. That there | •
personal liability upon an instrument chargi i »
debt upon immoveable property does rot c^y
with it the effect that the period of hmitation le»
for personal demands by Act IX of 1871 is extend

{ 7277 )

DIGEST OF CASES.

( 7278 )

LIMITATION ACT (XV OF 1811)— contd. i LIMITATIONl^ACT (XV OP ISlly-cmtd,

Schedule U—co7itd.
Art 132— co«/d.

'by reason of this demand being thereby brought
'within the meaning of Art. 132 of Sch. 11 of that Act,
which appHes to claims " for money charged upon
immoveable property." A mortgagee of lands
sought, after the lapse of more than six j-ears from
the date when the mortgage-money was paj^ablc, to
enforce two distinct remedies, the one against the
'property mortgaged and the other against the
'mortgagor personally, on the contract to repay the
Snortgage-money : — Held, that Art. 132 above men-
|; oned apphed only to suits to raise money charged
on immoveable property out of that property ; and
the twelve years' bar did not apply to the personal
remedy, as to which the shorter period prescribed in
Art. 65 of the same schedule applied. Ram Din v.
Kalka Prasad

I. L. R. 7 All. 502 : L. R. 12 I. A. 12

81.

Unpaid purchane-

money — Suit to recover the money from the vetidee
j.erscrmUy and from the property sold — Personal
remedy — Limitation Aet, Sch. II, Art. 111. Unpaid
purchase- money is a charge on the property in the
ipossession of the vendee, and a suit to enforce it
against the property so charged falls under Art. 132
pf the Limitation Act (XV of 1877). But the
jarticle does not extend the time allowed otherwise
under the Act to claims to recover the money from
|the defaulter personally or his other property. The
limitation for the personal remedy is three years
under Art. 111. Virchand v. Kumaji, I. L. R. 8
Horn. 4S, and Bam Din v. Kalka Prasad, I. L. R. 7
AU. i02: L. R. 12 I. A. 12, followed. Where
pertain land was sold and possession given to the
|rendee in 1890, and a suit was brought in 1895 to
recover the unpaid purchase-money from the vendee
Ixsrsonally as well as from the property sold : — Held,
liat the personal claim was time-barred. CiUNi-
r. Bai Jethi . I. li. R. 22 Bom. 846
See Natesax Chetti v. Soindakaka.ja
Ayyangar 3. I. li. R. 21 Mad. 141

i 32. Transfer of Pro-

!^<r<y Act {IV of 1882), s. 55, sub.-s. 4 (b)— Vendors

Sen — Suit to enforce charge against the property.
, 'eld, that a suit by a vendor of immoveable pro-
krty to enforce against the property his hen for the
jinpaid purchase-money under s. 55, subs. 4 (6),
I'f the Transfer of Property Act, 1882, falls, within
fit. 132 of the second Schedule to the Limitation
pet, 1877. Virchand Lalchand v. Kumaji, I. L. R.
\8 Bom. 48, and Chunilal v. Bai Jdhi, 1. L. R. 22
'Jom. 84<i, followed. Natesan Chetty v. Soundara-
low Ayyangar, I. L. R. 21 Mad. 141, dissented
Irom. Ramdin v. Kalkapershad, L. R. 12 I. A. 12 :
lutton V. Hutton, L. R. 22 Ch. D. 511 ; and Toft v.
Vteve/won, 5 De G. M. tfc G. 735, referred to. Har
I'AL V. MvHAMDi I. L. R. 21 All. 454

I 83. a.nAATt.\^l— Hypothecation.

in 1884 A' sued A to recover the principal and
atersst due on a registered bond executed in 1870.

Schedule U—contd.
Art. 1.S2— con<</.

It was stipulated that the amount should be repaid
with interest in 1871, and certain immoveable pro-
perty was hypothecated as security for repayment
of the debt : — Held, that the suit did not fa.ll under
Art. 147 of Sch. 11 of the Limitation Act, which
allows sixty years to a mortgagee to sue for fore-
closure or sale from the date the money became
due, but under Art. 132 of the same schedule, which
allows twelve years to enforce a payment of money
charged on immoveable property. Ai.iba v. Nanu
I. L. R. 9 Mad. 218

34. Suit for sole of

immoveahle property by a creditor who has a right to
realize a charge not amounting to a mortgage. The
special provi-sion of Art. 147 of the Limitation Act
(XV of 1877) apphcs to all suits properly brought
b)' a mortgagee for foreclosure or sale, while the
general provision of Art. 132 applies to suits for
sale by a creditor having a right to realize a charge
not amounting to a mortgage. Khe.mji Bhagvan
Das GtrjAB v. Rama . I. L. R. 10 Bom. 519

35. Suit for dower (.s

a charge on immoveable property in hands of hen.
A suit by a Mahomedan widow against the heir who
has ousted her, for her dower, as being a lien on
landed property, was held to be governed by cl. 12,
s. 1, Act XIV of 1859. Janke Khaxum v. Ama-
TOOL F.atima Khatoox . . 8 "W. R. 51

36.

Suit for money

lent on deposit of title-deeds. Where a creditor sues
to recover m6ney advanced by him on the deposit
of title-deeds of property, his claim is governetl by
the limitation applying to debts ; but where he
seeks to have his lien realized it is a claim to realize
an interest in land, to which the limitation of twelve
years applies. Peary Mohux Bose v. Gouind
Giiundra Addy . . . 10 W. R. 56

37 ,^^__^_^ . Suit for monfy

charged on rents end profits— Suit for rmmey,
charged on immoveable property. K borrowed from
C a sum of R571, and at the same time executed
a bond whereby he mortgaged usufrnctuarily to
his creditor his ' ' entire right and share ' ' in a par-
ticular estate in lieu of the abovementioned sum ;
and it was agreed that C might realize the debt
from the rents and profits of two years, and that, as
.soon as it had been reaUzed, his possession should

cease : Held, that the money borrowed by K

was "money charged upon immoveable property,"
it being charged upon lents and profits in alieno
solo which in" English law would be classed as
" incorporeal hereditaments," but which by the
law of India are Included in immoveable property ;
and that therefore the limitation apphcable to a
suit for the recovery uf the money was that pro-
vided in Art. 1.32, Sch. II of Act XV of 1877. Duli v.
Bahadur, 7 N. W. 55, and Pestonji Bezonji v.
Ahdool Rnhiman, I. L. R. 5 Bom. 463, dissented
from. Fatehsanoji Jasuanisangji v. Desai Kul'

( 7279 )

DIGEST OF CASES.

{ 7280 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 132— contd.

lianraiji Hakoomathraiji, 13 B. L. R. 254, referred
to. Lallubhai v. Naran, 1. L. R. 6 Bom. 719,
followed. Muhammad Zaki v Chatku

I. L. R. 7 All. 20

38.

Suit for share of

Government revenue and for declaration that estate is
charged with amount. A suit for recovery of Qov-
ernment revenue, which the defendant was bound to
pay, but which has been paid by the plaintiff to
save the whole estate from sale, where the plaintiff
asks to have the amount so paid made a charge on
the portion for which he paid it, is governed by
Ai't. 1:^2, and not by Art. 99, of Act XV of 1877.
R.4.M DuTT Singh v. Horakh Narain Singh

I L R 6 Calc. 549 : 8 C. L. R. 209
Deo Nundun Agha v. Desputty Singh

8 C. Ii. R. 210 note

39. . Suit to establish

title and for arrears. ""I'he plaintiff sued the defend-
ants to recover a share of the income of a certain
watan which was admitted to be connected with an
hereditary office, but was not strictly speaking
charged upon immoveable property. In 1861 the
plaintiff had brought a previous suit, and obtained
a decree declaring his right to share in the watan,
and awarding him arrears for six years. Under this
decree, he had received payment of his share up to
tlie j'ear 1860. In the present suit tlie plaintiff
claimed arrears for twelve years, viz., from 1862 to
1874 : — He admitted that he had received no pay-
ment for the year 1861, and that his claim for that
year was barred. The defendants contended that
the period of limitation applicable to such a claim
was si.x years, and not twelve years ; that this was
the case, at any rate, so long as the Limitation Act,
XIV of 1859, was in force, and that therefore tlie
claim to so much of the arrears as was time-barred
under that Act could not be revived bv Act IX of
1871 :—fteW, that, whether Act XIV 'of 1859 or
Act IX of 1871 apphed to the plaintiff's claim, the
period of limitation was twelve years. Art. 132 of
Sch. II of Act IX of 1871 was a distinct provision to
that effect. There was no similar provision in Act
XIV of 1859 ; but all hereditary offices, and all
payments or allowances made on account of such
offices, are to be regarded as immoveable "property
within the meaning and intention of that Act, and
are therefore governed by the provision of cl. 12 of
8.1. It was also contended on behalf of the defend-
ants that, even if the period of hmitation were
held to be twelve years, the plaintiff's claim was
neverthless barred in toto, inasmuch as he admitted
that he had received no payment on account of his
share for thirteen j'ears precedinfr the institution
of the suit. In support of this contention, the cases
of Raiji Manor v. Desai Kallianrai, 6 Bom. A. C.
66, and Madvala v. Balvani, 9 Bom. 260, were cited,
where it was laid down that the cause of action to
establish title and the cause of action to recover

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

■ Art. 132— contd.

arrears which rest on such title are not distinct am
independent of each other : so that, if the former b
barred, even the arrears which may be within th
period of hmitation cannot be recovered : — Hela
that, while this is the rule, which must be apphed t
cases in which a plaintiff must estabhsh his titl
before he can ask for arrears accruing due unde
such title, the same rule does not apply where, as i
the present case, the plaintiff has in a former su
obtained a decree declaratory of his title. It is r
longer necessary for him to establish his periodical
recurring right against any person who is bound b.
that decree ; and that being so, there is nothing i!
the law of limitation which can be construed into
restriction of the plaintiff's right to recover tl|
arrears falling due within the period of Umitatioi,
Chhaganlal v. Bapubhai . I. L. R. 5 Bom. G

40. — — ^ T)ebt not charge

on immoveahle property — Hindu widow — Reiersioru
A mdow purported to charge land which she hcl
for her widow's estate Mdth payment of a debt, ai
afterwards surrendered her estate to the next he
or reversioner, on condition that he should pay ;
her debts. In a suit brought by the creditor after t
death of the widow, against the reversioner, mc
than six years from the time when the debt h:
become payable -. — Held, that, unless the debt h
been effectively charged on immoveable proper
within Art. 132, Sch. II of the Limitation Act, 18'
the suit would be barred, and the charge alleged
have been made on immoveables was found not
have been in fact a binding one. Kamesw^
Pershad v. Rajkumari Ruttan Koer.

I. L. R. 20 Calc
L. R. 19 L A. 2.

41. Suit to enfol

mortgage by father against sons. A suit to enfo?
against the sons a mortgage-bond executed by tit
father is governed by Art. 132 of Sch. II of p
Limitation Act. Pran Krishna Tewary v. Jip
Nath Trivedy . 2 C. W. N. 6?

42. - and Arts. 99 and 120-Co« -

hution, suit for — Sale of mortgaged properly in (
cution of decree— Confirmation of sale. Where
owner of two villages sold under a decree obtai
upon a mortgage claims contribution proportir
ately against the owners of the other propertiesjt-
cluded in the mortgage, and does not claim h'-
them all collectively one lump sum as contribut
he may join all the contributors in one suit,

is not bound to bring separate suits for coi; ^
bution against the separate owners. The ownerp
the other villages included in the mortgage are hm
to contribution ; and the owner of the prop( "
sold is entitled to a charge on those other village
respect of the several amounts to be contribul
and the suit for contribution is governed by "
limitation provided by Art. 132, and not by «*
provided by Art. 99 or Art. 120 of Sch. II of »9
Limitation Act (XV of 1877), and must be institiHl

( 7281 )

DIGEST OF CASES.

( 7282 )

IMITATION ACT (XV OF 1817)— contd.

Schedule II— contd.

Art. 132— contd.

vhin twelve years from the date of confirmation
< sale. Jiam Dutt Si7igh v. Horakh Narain Si7igh,
J L. E. 'i Calc. ■'>49, and Pancham Singh v. Ali
^mad, I. L. R. 4 All. -JS, referred to. Jen Husain
tlAMDAI . . . I. L. R. 12 All. 110

and Arts. 135 and 1^1— Suit

01 mortgage-bond — Conditional sale — Foreclosure^

1 g. Reg. X VI I of 1S06, ss. 7, S— Transfer of Pro-

f y Act {IV of 1SS2), s. 67. cl. («). In a suit for

p /!Ssion of land on the allegations that it was

nvgaged by the defendant's father in July 1849

-t< he plaintiffs' predecessors, by way of conditional

81 , by a deed which fixed no time for payment,

a: made no provision as to the mortgagee taking

pi,iession ; that the mortgagor made various pay-

ni.ts down to 187o ; and that subsequent^ fore-

cl'iire proceedings were instituted under Regula-

ti XVII of 1806, and the mortgage foreclosed in

U', the lower Appellate Court found that the

d(l was duly executed, but that the foreclosure

pneedings were irregular and invalid : — Held,

tbi, inasmuch as the deed fixed no time of jjayment

an the suit was brought more than twelve years

af • the date of the mortgage-deed, and also more

th twelve years after the date of the alleged last

>' iii'iit to the mortgagee, which was in 187r,, the

- barred by Art. 1.32, Sch. II of the Liraita-

t. Having regard to the provisions of s. 67,

f the Transfer of Property Act, the mort-

ing by conditional sale, the mortgagee was

'.tied to the remedy by sale, and therefore

~ lid not apply to the case. Girivar Singh v.

Xarain Singh, I. L. R. 14 Calc. 730, re-

•■ Held, also, that, inasmuch as the raort-

iid not become entitled to possession after

'lie proceedings under Regulation XVIII of

I- proceedings having been found to have

\alid, and as the mortgage-deed did not

any provision as to the mortgagee taking

n, Art. 1.35 was not applicable. Nilco-

AMAXiCK V. Kamixi Koomar Basu

I. li. R. 20 Calc. 269

Mortgage — JJsu-

7 mortgage — Further mortgage of the same
—Destruction of mortgaged property by
-Transfer of Property Act {IV of ISS2),
iglit to sue under. Plaintiffs advanced
"n an usufructuary mortgage of certain
Magh 1280 (January 1873), and .subsequently
^ another sum of money in Sraban 1280
•'■i) on the security of the same land. The
IS washed away in 1892. In an action

■ in 18:14 under s. 68 of the Transfer of Pro-
t (IV of 1SS2) tor the money of both the
'S on the ground that the defendants de-

■ ' give fresh security, the defendants objec-

■ the claim as regards the mortgage of Sraban
~ barred before the inundation under Art.
'■ II of the Limitation Act (1S77) ; the

>x-mg due on the date of the bond -.—Held,

LIMITATION ACT (XV OF 1877)^07»ki.

Schedule II — contd.

Art. 132— contd.

overruling the objection of limitation (i) with re-
ference to the terras of the mortgage of Sraban 1280,
that it was intended to add the money to the amount
of the previous mortgage and t) place it on the same
conditions, and that the plaintiffs were therefore
equally entitled to sue for the money upon this
mortgage as upon the other, (ii) That a.ssuraing
that there was a right to sue for the money, it did
not follow that the plaintiffs were not entitled to
have substituted for the security the money which
took the place of the security. That on the hap-
pening of the event provided for in s. 68, the
plaintiffs, who were admittedly entitled to remain in
possession of the property until the money had
been re])aid, were clearly entitled to have the money
substituted for the property. Ram Jewax Misser

f. JrjGGERNATH PeKSHAD SiXGH

I. L. R. 25 Calc. 450

45. -^ and Art. 14il—Suit on a mort-
gage-bond— English mortgage — " Mortgage " and
''Charge " — Transfer of Property Act, ss. -'iS, f>0, 67,
S3, 86, 87-89, 92, 93,100. A suit on a mortgage-bond
to enforce payment by sale of premises hypothe-
cated is governed by Art, 132, and not Art. 147 of
the Limitation Act. Brojo Lai Singh v. Gour
Charan Sen, I. L. R. 12 Calc. Ill, overruled. Shib
Lai V. Ganga Pershad, I. L. R. 0 All. ■'>-'il, dissented
from. The clear distinction drawn for the first
time between " mortgage " and " charge " in
the Transfer of Property Act is not observed in the
Limitation Act. Girwar Sikgh v. Thakur Naraix
Singh . . . I. L. R. 14 Calc. 730

46.

and Art, 14J7— Transfer of

Property Act {IV of 1882), ss. -58, 100— Hypotheca-
te tion-bond. The period of limitation for suits upon
j hypothecation-bonds, which contain no power of
sale, or effect no transfer of propertj% executed
before the Tran.sfer of Property Act came into
I operation, is twelve years under Sch. II, Art. 132, of
the Limitation Act of 1877. Alibu v. Nanu, I. L. R.
9 Mad. 218, followed. Per ]Muttu.sami Ayyar, J. —
"The transaction in suit appears to be of the kind
described in s. 100 of the Transfer of Property Act,
which defines how a charge is created," but " it
seems to me that the Transfer of Property Act does
j not invest all prior hypothecations with the rights
I and liabilities arising from simple mortgages, whe-
ther or not those transactions satisfj- the require-
! nients of the definition it contains of simple mort-
gages." RaXGA.S.VMI f. MuTTrKlMARArPA

I. L. R. 10 Mad. 509

I 47. and Art. 1^1— Mortgage— Suit

I fo .'ialt. On 2nd July 1879 the defendant mort-

' gaged to the plaintiil certain property to secure

payment of a debt with interest. The instrument

purported to be a mortgage with possession, and it

contained a covenant to repay the mortgage amount

on the Sth Jlarch 18S2. The plaintiff never obtained

possession, and he brought a suit on the 29th June

1M94 to recover the principal and interest by the sale

{ 7283 )

DIGEST OF CASES.

( 7284 )

LIMITATION ACT (XV OP 18n)-contd.

Schedule II— contd.
Art. 132— contd.

of the land : — Held, that the suit was governed by
Art. 132, and not Art. 147, of Limitation Act, Sch. II,
and was accordingly barred by limitation. Rama-

CHANDRA RaYAGURU V. MODHU PaDHI

I. L. R. 21 Mad. 326

and Art. 147 — Suit on mort-

gage bond to enforce payment of amount due by sale of
mortgaged property — Suit on mortgage in English
form for foreclosure oj sale — Transfer of Property
Act {IV of 1S82), ss. .',S, 88, 100. A suit on
a simple mortgage bond to enforce payment of the
amount due on the bond by sale of the mortgaged
property is governed by Article 132 of Schedule II
of the Limitation Act (XV of 1877) and not by
Article 147. The latter Article is limited in its
application to the one class of mortgages in which
alone the suit can be, and always is, brought for
foreclosure or sale, that is to mortgages in the
English form. Vasul-eva Mudaliar v. Srixivasa
PiLLAi (1907) . I. L. R. 30 Mad. 426
L. R. 34 L A. 186
49. Suit on a hypo-

thecation-bond, dated. 1S70 {before Transfer of Pro-
perty Act), to secure inoney payable on deinand. In a
suit to recover principal and interest due on a hypo-
thecation-bond executed before the Transfer of
Property Act was passed to secure a loan payable on
demand, it appeared that the plaint was filed more
than twelve years after the date of the document
sued on : — Held, that the suit was governed by
Limitation Act, Sch. II, Art. 132, and that an actual
demand was not necessary to establish a starting
point for limitation, and that the suit was barred b}'
limitation. Periasna Gouxdan v. Muthuvira
GouNDAN . I. L. E. 21 Mad. 139

50.

On demand

— Accrual of cause of action. In a suit brought in
1895 on a hypothecation-bond dated 9th October
1880, it appeared that the loan secured thereby
was repayable on 9th October 1883, but it was sti-
pulated that, if interest was not paid at 10 per cent.
per annum as therein provided, then the loan
should be repaid with interest at 15 per cent, when
the obligee should require it. Default had been
made in the payment of interest in 1831, but the
obHgee had not called for the money : — Held, that
the suit was not barred by limitation. Nettaka-

KUPPA GOTTNDAN V. KUMARASAMI GOUNDAN

I. li. R. 22 Mad. 20
51.. Transfer of Pro-

perty Act {IV of 188 -4), s. 7.3— Mortgage— Surplus
tale-proceeds at revenue sales — Suit for enforcement
of payment of money under a mortgage-deed. Where
property mortgaged to the plaintiff was sold for
arrears of Government revenue, and, out of the
surplus sale-proceeds held in the Collectorate, cer-
tain creditors of the mortgagors drew out the am-
ounts of their money-decrees obtained against the
mortgagors, and the plaintiffs sued these creditors
for the moneys which they had taken out from the

LIMITATION ACT (XV OP 1877)-

Sehedule II — contd.

Art, 132— concZrf.

Collectorate, with interest : — Held, that, ^
regard to the provision of s. 73 to the Tran r
Property Act, a suit like the present, to .f(
payment of money charged upon immc;j
property, is governed by Art. 132 of Sch. II)
Limitation Act. Kamala Kanta Sen v. h
Bakrul alias Habibullah, I. L. R. 27 Cal j
referred to. Jogeshur Bhagat v. GHA^•E
Dass (1901) . . . . 5 C. W. 1 J

52.

Suit fo

bidion from co-sharer for money paid for Govern
revenue, limitation for — Plaint presented as a -u
petition within time and full stamp subsequent p
— Suit instituted when plaint presented and mwi
Court-fee is paid. A co-sharer paying Goveon
I'evenue due on land has a charge on the land-r
amount so paid to the extent to which he is cit
to contribution from the other share-holdt s
the period of limitation to enforce such charj is
years under Art. 132 of Sch. II of the Liiriti
Act. Rajah of Vizianagram v. Rajah Salrhi
Somasekhataraz, I. L. R. 2-i Mad. 6S6, 7.', i
lowed. When a plaint is presented as a lU]
petition and before disposal of the petition 3 f
stamp duty is paid after the period of lim .ti(
the suit, in the absence of fraud, will be con ler
as instituted on the day the plaint was print
and the subsequent payment of stamp di; «
relate back to the date of presentation of thclaii
Stuart Skinner alias Naicab Mirza v. ]Villia On
I. L. R. 2 All. 2il, foUowed. Alayakam.l

SUEBAKAYA GOUNDAN (1905)

I. L. R. 28 Mai 41

53.

Volv n '

ment— Assessment — Payment by A of asst^
on B's land does not give A a charge on sio ■
— Contribution. The plaintiff filed this sm
to recover R30 which he had paid for the d )
in respect of yearly assessments due upv -
land si:rce the year 1891. Their land form pa
of a larger holding which stood in one nanm tl
revenue records, and the assessment on "^
plaintiff paid. He now sued the defein;
contribution in respect of the assessment
their part of the holding, and contended tl
land WHS charged with the amount so paiii
and that the period of hmitation applyin
claim was that prescribed in Art. 132 of Sc !' '
the Limitation Act (XV of 1877). Held, Ut "
money paid by the plaintiff for the defend; ■= "'
not become a charge on the defendants' h
that Art. 132 of Sch. II to the Limitation
not apply. The mere fact that the plain
obliged to pay the assessment for the defi
land in order to save his own might, undc;

cumstances, give him a right to claim conti

but a charge is not incident to that right, t,''**'

Narayan v. Pundlik Bhaire (1902) ^

I. L. R. 26 Bo . 4Si

( 7285 )

DIGEST OF CASES.

( 7286 )

.5)-

I MITATION ACT (XV OF 1877)— confJ.

Schedule II — contd.
Art. 134 (1871, Art. 134: 1859,

See Debutter I. L. B- 33 Calc. 511
13 C. W. N. 805

/See'MoBTGAGE — Redemption.

I. li. R. 29 All. 471
See Transfer of Property Act (IV of
1882), ss. 62, 63.

I. L. R. 29 All. 471

Bo7id fide fur-

CI rs. S. 5, Act XIV of 1859, was intended to
b'tiit only bond fide purchasers from trustees.
Kroomssa v. Sap-hoonissa Khatoon

5 W. R. 238

Priority of bond

,,. ,..urhase. S. 5, Act XIV of 1859, ivas held not
U pply to a case of priority of bond fide purchase.
K J.V MoHUN Pal v. Bholanath Chakladar

7 W. R. 138

Bond fide pur-

ijjer — Property belonging to idol. In 1799 an
etjte was purchased in the name of an idol, and
iriediatcly afterwards was mortgaged. Subse-
n iitlv. when the mortgage-debt had been paid off,
' conveyed to the idol. After this, the names
Idl and of its shebait were entered in the Col-
,, ■, .- books as owners of the estate. In 1812 the
pphaser again mortgaged the property, and in
Hji) his widow executed a second mortgage of it
k|Day off the mortgage of 1812. In 1820 this
Kind mortgage was purchased. The defendant
h'jl the property under titles derived from the
ntgage of 1810. The shebaits representatives in
llj7 sued to recover possession cf the property as
blnging to the idol, alleging that the purchaser
Wj a mere trustee for the idol ; that the present
h-jlers of the property were cognizant of this, or
D!|ht have learnt it by reasonable enquiry, and
tli'cfore took the property subject to the trust ;
»ij that accordingly the suit now brought was a
»ii against a trustee within s. 2, Act XIV of 1859,
»ij could not be barred by any length of time.
Tin? was no evidcnceof a formal dedication of the
pi:)orty to the idol : — Held, that the defendant
cl|med under th" purcl asers who had purchased
«ii fide and for valuable consideration within a 5,
»'| that therefore the period of limitation was
t'|lve years from the date of purchase, and the
•Vj was barred. Braja SuxdakI Df.bi r. Lachmi
K|fWAUi 2 B. L. R. A. C. 155 : 11 W. R. 13

5. on appeal tn Privy Coun<il

15 B. L. R. P. C. "176 note : 20 W. R. 95

— ; Endowed pro- \

JHy — Suit to have In nd declared wahf. Intheca.se ;

akf land, the mere stoppage of religious service |

ii not start Umitation. In a suit, therefore, to i
wl; land sold declared wakf and therefore unalien-

•I , the cause of action arises not from the cessa- ;

J»' of services, but from the date of the sale. j

D-AL C^HAND MVLUCK V. KeRAMUT AlI I

16 W. R. 116

LIMITATION" ACT (XV OF 1877) -contd.

Schedule 11— contd.
. Art. 134— contd.

A suit by a mutwali for endowed property
alienated would probably come within this article.

iS^ee Lall Mahomed v. Lall Bbij Kishore.

17 W. R. 430

Mortgage of en-

dowed property — Suit for recovery of property.
Certain landed property alleged to have been sold
to an idol, and registered in the name of the vendee's
infant son as shebait, had, after the death of that son^
been mortgaged twice by the vendee, who succeeded
to the office of shebait, and was mortgaged subse-
quently on the death of the vendor, by bis widow,
to pay off the charge created by her husband. The
last mortgage was foreclosed, and the mortgagee
obtained a decree for po'^session. In a suit for the
recovery of the property by descendants of the
vendee, claiming as shebait of the idol : — Held, that
the last mortgagee was a bond fide purchaser for
valuable consideration, and was therefore entitled
to the protection of s. 5. Gobind Nath Roy v.
LucHMEE Koomaree . . 11 W. R. 36

6. __

Suit to remove

trustee and recover possession of trust property from
third party— Civil Procedvre Code, IS.SJ, s. .::39. Art.
134 of the second Schedule of the Indian Limita-
tion Act (XV of 1877) applies to a suit for the dis-
missal of a trustee and for the recovery' of trust
property from the hands of a third party to whom
the same has been improperly alienated. Such a
suit is within the sc6pe of s. 539 of the Civil Proce-
dure Code. Stdjbayya, v. Krishna, I. L. B. 14 Mad.
186, followed. Lakshmandas Parashram v. Gan-
palrav Krishna, I. L. R. S Bom. o - , distinguished.
Sajedur Raja Chowdhuri v. Gocr Mohun Das
Baishnav . . I. Ii. R. 24 Calc. 418

7. Suit (uidinst pur-
chasers by representative of mortgagor. In a suit by
the representative of a mortgagor against bowi fide
purchasers for valuable consideration from the
mortgagee : — Held, that the period of limitation was
twelve years from the date of the purchase, under
8. 5, Act XIV of 1S59. Sitha Ummal v. Hinga-
SAMi Iyengar ... 5 Mad. 385

8. . Mortgage by

member of joint Hindu family — Bond fide purchaser.
To entitle a purchaser to claim the benelit nf Ac*
XIV of 1859, s. 5, he must prove, — 1st. that he is a
purcha.ser of what is represented to him, and what
he fully believes to be not a mortgage, but an ab-
solute title ; 2nd, that he purchased bond fide, —
that is to say, without a know ledge of the title having
been originally a mortgage, and of a doubt existing
as to the mortgage having cea.sed ; and 3rd, that he
is a purchaser for valuable consideration. Where
an estate having been originally mortgaged by A',
a member of a joint Hindu family, he subsequently,
without the knowledge of the other members, re-
leased the eiiuity of redemption to E, who after-
wards sold to //, the owner of a factory, who after-
wards sold to G d- Co. the factory with the lands

( 7287 )

DIGEST OF CASES.

( 7288 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — coatd.
Art. 13^— contd.

appertaining thereto, amongst which was the pro-
perty so released, and proceedings had for many
years been taken by the other members to assert
their rights : — Held, reversing the decision of the
High Court, that G & Co. were not purchasers en-
titled to the protection of Act XIV of 1859, s. 5 : —
Held, also, that s. 10 does not apply in such a case,
although K acted fraudulently. Radhanath Das
V. Elliott . . . 6 B. Ii. R. 530

s.c. Radhanath Das v. Gisboene & Co.

14 Moo. I. A. 1 : 15 W. E,. P. C. 24

Reversing the decision of the High Court in Gis-
BORNE & Co. V. Radhanath Das 5 W . R. 253

9. Mortgage — Pur-

cliaser from mortgagee — Necessity of possession in
order to validate transaction as against original mort-
gagor. A person purchasing or taking a mortgage
from a mortgagee beUeving that he is getting a good
title must have possession of the property for the
statutory period in order to vaUdate the transaction
as against the original mortgagor xmder Art. 134 of
the Limitation Act (XV of 1877). Ramchandka

VlTHAL RaJADHIKSHA V. MOHIDIN

I. L. R. 23 Bom. 614

10. Sale of 'property by

representative: of mortgagee. The sale of mortgaged
property by the heirs of a mortgagee after it has
been held and enjoyed by them upwards of sixty
years does not give a fresh cause of action to the
representatives of the mortgagor. Ram Dhun
Bhuggxtt v. Guneshee Mahtoon 16 W. R. 96

11.

Bond fide pur-

chaser. A defendant who seeks to protect himself
by the provisions of s. o. Act XIV of 1859, against
the claim of a mortgagor suing within sixty years to
recover mortgaged lands must show clearly that he
or the person from whom he derives his title, was a
bond fide purchaser. Juggurnath Sahoo v. Shah
Mahommed Hossein . . 14 B. L. R. 386
23 W. R. 99 : L. R. 2 I. A. 49
12. Mortgage — Sub-
mortgage by mortgagee — Suit for redemption by ori-
ginal mortgagor against mortgagee and sub-mort-
gagees— Adverse possession by sub -mortgagees —
" Purchaser for value '' — ^^ Valuable considera-
tion " — S. •■! of the Limitation Act [XIV of 18)9) —
Art. 134, Sch. II of the Limitation Act {IX of 1871).
Held, that the expression ' ' purchaser for valuable
consideration " in Art. 134 of the Limitation Acts
(IX of 1871 and XV of 1877) includes a mortgagee
as well as a purchaser properly so called. Semble :
the words ' ' bond fide, ' ' which appeared in Art. 134,
Sch. II of the Limitation Act (IX of 1871), were
advisedly omitted from Art. 134, Sch. II of the Li-
mitation Act ( XV of 1877), to exclude the possible
inference that absence of notice of the real owner's
claim was necessary to enable a purchaser to avail
himself of the article. Yesu Ramji Kalnath v.
Balkrishna Lakshman I. L. R. 15 Bom. 583

LIMITATION ACT (XV OFJ877)— (^«

Schedule II — contd.
Art. l34^contd.

13. ; Mortgages

mortgage — S^iit for redemption. In 1864 A lo
gaged the property in dispute with possessioi o
B and his widow after his death sub-monc
various portions of it to S (defendant No. 3) ir 8(
ISefi, and 1870. After the death of the mor ig
A, his grandsons (plaintifis Nos. 1, 2, and ; s(
their equity of ."redemption to plaintiffs Nos. a
5, and in 1891 the five plaintiffs sued defeiai
Nos. 1 and 2, the heirs of B (original mort re
and the sub-mortgagee (defendant No. 3), '
demption and possession. The defendants coiei
ed that the suit was barred by th"- Limitatir ' A
(XV of 1877), Sch. II, Art. iSi -.—Held, thsA
134 did not apply, as the language of the subio
gage- deed showed that the transaction was im
a mortgage of the mortgage interest of J5, al i
of the entire'property in the land. Baivakhan'm
khan v. Bhiku Sazba, I. L. R. 9 Bom. 475 an Yt
Ramji v. Balkrishna, I. L. R. 15 Bom. -583, r .ri
to. Savalaram v. Genu I. L. R. 18 Bor 3i

14.

Mortgage.— 'ec

obtained by mortgagee for possession until pi
\ of mortgage-debt — Possession taken by mija
[ u7hder decree — Continuance after decree of nti
j of m,ortgagor and mortgagee^Sale by mortQiee
Vendor and purchaser — Subsequent suit t
demption by mortgagor against mortgagee a\ I
vendee — Purchaser, bond fide. A decree on fjao
gage having directed the mortgagor to give ssi
sion to the mortgagee until the payment t
i mortgage-debt and costs f<jund due, the moj;af
I entered into possession, and subsecjuently sd t
property to a third party. More than twelv /ea
after the sale, the mortgagor brought a rede iti
suit both as against the mortgagee and the {rch
{ ser : — Held, that the suit (as against the pur asi
} was barred under Art. 134, Sch. II of the Linaii
i Act (XV of 1877), and that, notNvithstand.-,' t
! decree for possession, the relationship of mo'-f-c
! and mortgagee continued, whether under V
j ual mortgage or the decree. Absetice of h'
as distinguished from actual knowledge of
i dor's title, does not prevent the purch:i-
I claiming the benefit of Art. 134. In ordi
[ the purchaser the benefit of Art. 134 the
need not be bond fide in the sense of beinu
" constructive notice " of the restricted ■
the vendor's title, but by the term " pui
in that article is meant a person who purcli
which is de facto a mortgage upon the repres
made to him and in the behef that it is an a _
title. Pandit v. Vithu I. L. B. 19 Box 1^

15. Vendor a\ pn

chaser — Bond fides — Notice of charitable trui Tl
words ' 'conveyed in trust' ' in Art. 134 of Sc| H '
the Limitation Act (TX of 1871) include ^"Vis
in trust, or are equivalent to the words "'est<
in trust " in s. 10 of the same Act. Thq^n
" in good faith ' ' in Art. 134 of Sch. II, and^ s.' '

( 7289 )

DIGEST OF CASES,

( 7290 )

IMITATION ACT (XV OF 1817)- coiitd.

Schedule II — contd.
Art. 134^contd.

I the Limitation Act (IX of 1871), do not neces-
i|ily involve absence of notice in the purchaser of
i, ekinting trust or equity, tliough the fact of there
,Dg such notice may be an important element in
ij) question whether there was bond fides. The
I'endant in the present case though he purchased
yh actual notice, must, having regard to all the
(j;umstanccs, be held to have purchased in good
r.h, and the suit was accordingly barred by limit-
V)n, there being nothing in the Limitation Act
(|! of 1871) excluding from its benefit those as-
^ting their right to claim under a bond fide pur-
"yse for value, by reason tliat those claiming
i^iinst them are the objects of a charitable trust
iposed on such pioperty. Maniklai. Atmaram
iMANCHERSHi Di^biiA I. L- R. 1 Bom. 269

j6. — _ Mortgage — Sale

cnortgagee's rights and interests for the recovery of
u'enra of revenue — Suit for redemption — Beg. XI of
h, a. 29— Reg. XV 11 of 1806. It was not in-
t'ded that property which Mould pass on the sale
lia mortgagee of his interest should come within
■ti scope of Art. 134, Sch. II of the Limitation Act
{\V of 1877). The article was intended to protect
•|?r the expiration of twelve years from the date of
!i urchase, a person who, happening to purchase
'■ intrtgagee, had reasorable grounds for be-
. and did believe, that his vendor had the
( .1. lo convey and was conveying to him an abso-
iH; interest and not merely the interest of a mort-
glee. Badunath Dcss v. Gishorne d: Co., 14
ij5. I. A. 1 : 6 B. L. B. 530 ; Piurey Lai v.
8\ga, I. L. B. 2 AU. 394 ; and Kamala Singh v.
ml Fatima, I. L. B. 2 AU. 460, referred to. Con-
Ulporanecusly with the execution of a registered
dll of sale of zamindari property in 18.35 for

SOOO, the vendee executed a deed in favour of
vendors, which also was registered, and by
*!ch he agreed that, if within ten years the vendors
si I Id pay R4,000 in .-i, lump sum without interest,
I'd accept the same and cancel the sale, and
■ should be in possession during that period,
insaction admittedly amounted to a mort-
. conditional sale. The mortgagee remained
' ssion, and his name was entered as that of
("iinetor in the Collector's register, in which no
*f|ion was made to a mortgage. In 1840 his
"■'s in this property were sold by auction for
of Government revenue due by him on ac-
t other land, and apparently no notice was
v any one at or prior to the sale that it was
'qagec's interest only which was about to be
"ting sold. The property was purchased for
I'y 5 who took possession, and in 184.5 sold
{ 3,000 to T who took possession, and in
'd it for the same sum lo C. On the occasion
tran.sfer, the name of the transferee was
in the Collector's register as that of pro-
No application for foreclosure was made
time. In 1885 the representatives of the

LIMITATION" ACT (XV OF 1877y-contd.

Schedule 11— corUd.
— Art. 134 — contd.

mortgagors brought a suit against the representa-
tive of C for redemption of the mortgage and for
mesne profits. The defendant pleaded (i) tliat the
suit was barred by limitation under Art. 134, Sch.
II of Act XV of "1877 ; (ii) that the several. trans-
ferees were innocent purchasers for valuable con-
sideration without notice, who had purchased in
each case from the person who was, with the con-
sent, express or implied, of the persons for the time
being interested, the ostensible owner, and had in
each case, prior to the purchase, taken reasonable
care to ascertain that the transferor had power to
make the transfer and had acted in good faith : —
Held, that Art. 1.34 of the Limitation Act did not
apply to the case, inasmuch as that Article referred
only to persons purchasing what was de facto a
mortgage, having reasonable grounds for the belief
and believing that it was an absolute title ; and
that, having regard to s. 29 of Regulation XI of
1822, to the presumption that the several trans-
ferees knew the law and made inquiries as to the
interest they were purchasing, and examined the
register in which the deed constituting the transac-
tion of 1835 (a mortgage) was registered, and also
having regard to the fact that R 3,000 only were
paid as purchase-money in each case, and to the cir-
cumstance that it was doubtful whether a purchaser
at a formal auction-sale such as that in question
could be said to have purchased without notice an
absolute interest from fhe mortgagee, it must be
inferred that the transferees knew, or might or
ought to have known, unless they wilfully abstain-
ed from inquiry, that the interest which they
respectively were purchasing was merely that of a
mortgagee. Sobhag Chand Gulub Chand v. Bhai
Chand, I. L. B. 6 Bom. 193, referred to. Held,
that, as by Regulation XVII of 180G mortgagors
in such a ease as the present were entitled to
redeem within sixty years, the plaintifTs were
entitled to a decree for redemption. Bjiagwah
Sahai v. Bhaowan Din . I. L. K. 9 AIL 97
17. . Clause of condi-
tioned sale in mortgage — Suit ly mortgagee for decla-
ration of the tale — Decree ordering delivery of pro-
perly to mortgagee in default of payment of mortgage-
debt by mortgagors vithin one month— Default of
payment by mortgagors — Effect of such default —
Mortgaged property taken ly mortgagee in execution
of such decree not as mortgagee, but absolutely —
Subsequent suit for redemiAion. In 1803 B and C
mortgaged certain land to one G under a mortgage-
deed, which provided that, if the mortgage-debt
was not paid at the stipulated time, the land should
become the absolute property of G, the mortgagee.
In 1871 0 filed an ejectment suit against £and C
and one H alleging that he had become owner of
the land by operation of the above clause, and that
he had subsequently let it to H, who now, in col-
lusion with the other two defendants (the mortga-
gors), denied his title. The ejectment suit was sub-

{ 7291 )

DIGEST OF CASES.

( 7292 )

XIMITATION ACT (XV OF 1877)— con/d.
Schedule 11— contd.

Art, 134:— contd.

sequently converted into one for a declaration of
G's title as owner as against the mortgagors, B and
C, who claimed a right to redeem. A decree was
passed in 1872, ordering B and C to pay RlOO to G
within one month, or, in default, to deliver up to
him possession of the land. The monej' was not
paid, and V as purchaser from G got possession in
execution of the above decree in August 1873. In
September 1885, the plaintiff, as B's heir and legal
representative, filed a suit against G and V to re-
deem the property. The Court of first instance
dismissed the suit, holding that the plaintiii's claim
was res judiadn by virtue of the decree passed in
1872, and that the right to redeem was lost. On
appeal the Court reversed this decision and passed a
decree for redemption on payment of RlOO by the
plaintiff within six months. The defendant V then
applied to the High C'ourt under its extraordinary
jurisdiction : — Held, that the suit was barred under
Art. 134 of Sch. II of the Limitation Act (XV of
1877), V having purchased the land for value from
G, the ostensible owner, more than twelve years
before suit. Vishnu Chintaman v. Balaji bin
Raghuji . . . I. L. R. 12 Bora. 352

18.

Suit to redeem

hy assignee of equity of redemption — Title purchased
at execution-sale. Suit, in 1885, by the assignee of
the equity of redemption to redeem a mortgage of
1826. The mortgagees were put into possession
under the mortgage and no interest was paid. In
1855 the mortgage premises were sold at a Court-
sale in execution of a decree against the mortgagees
as if they formed part of their family property,
and the defendant derived title from the execu-
tion-purchaser, who had dealt with it as absolute
owner : — Held, that the suit was barred under the
Limitation Act, 1877, Sch. II, Art. 134. Muthtt v.
Kambalinga . . I. L. R. 12 Mad. 316

19.

Purchaser for

value — Mortgage in 1842 — Subsequent mortgage in
1872 by mortgagee representing himself to be owner —
Decree on second mortgage — Sale in execution —
Purchaser at auction-sale — Right of original mort-
gagor in 1892 to redeem mortgaged property. In
1842 the grandfather of the plaintiff mortgaged the
land in question to one M with possession. On
9th May 1872, j¥'s son, who was then still in pos-
session representing himself to be the owner, mort-
gaged the property with possession to defendant
No. 2 and S, the grandfather of defendant No. 3.
These defendants sued upon their mortgage of .May
1872, and obtained a decree and sold the property
in 1881 in execution, purchasing it themselves.
Defendant No. 3 subsequently sold his share to
defendant No. 4. In 1892 the plaintiff sued the
first defendant (the grandson of the original mort-
gagee M under the mortgage of 1842) for redemp-
tion, making defendants Nos. 2, 3 and 4 party
defendants. The defendants contended that they

LIMITATION" ACT (XV OF 1877)-
Sehedule II — conld.

Art. 134— conicZ.

were purchasers for value, and that the suitri
barred by Art. 134 of the Limitation Act:—?
that the suit was not barred, and that the pia.i
was entitled to redeem. By the sale in 188] \
interest of defendant No. 1 became vested in 1 1
The plaintiff could then have redeemed theio
paying off the amount due under the mortga (
1842, disregarding the mortgage of 9th May !;
altogether. But when the defendants Nos." in
3 had held possession under that mortga2[c
twelve years (i.e., on 9th May 1884), that mor gi
under Art. 134 and s. 28 of the Limitation,.c
became a valid mortgage as regards the plaiitf
and they could not after that date recover pdei
sion without redeeming it also. The purchaib
defendants Nos. 2 and 3 at the auction-sale iu^S
could not avail them, as the present suii^a
brought within twelve years from that iti
Though a mortgagee is a purchaser for valu h
is not an out-and-out purchaser, but only UiUi
chaser sub modo. He purchases a mortgi;e'
interest in the land, viz., a right to hold the or
gaged property until the debt is paid. A mortige
is pro tanto a purchaser for value within the -ar
ina of Art. 134 of the Limitation Act (XV of 77
Maltjji v. Fakirchand . I. L. R. 22 Bom 22

20.

Sale by monfit

as oivner. A mortgaged land to B and then .d i
to G, and subsequently sold it to B ignoring tV'i"
vious sale. G now brought a suit for redf n
and B who had been in possession for mai
pleaded limitation. Held, that the suit v.
erned bv Limitation Act, Sch. II, Art. 134. I' l '
Abbu Beari . . I, L. R, 21 Ma' 15:

21. —

- and Art. 144— .S«ti by ■''"
to set aside mortgages of trust property mad-
predecessor in office. A sajjadanashin in |
sion of certain waqf property during tli
1864 to 1860 executed various mortgages
tions of the watjf property, professing t
in his capacity of sajjada nashin. The uv
died in February 1891, and on the 6th of A]
was succeeded by his son as sajjadanashin.
25th of November 1893, the son brought a
recover possession of the mortgaged proji
which the mortgagees were in possession,
ground that the mortgages were in violatii':
trust and therefore invalid: — Held, by tin
that the suit was barred by limitation. P* ■
J. — Whether or not Art. 134 of the second S
to the Indian Limitation Act, 1877, apphi
case is immaterial ; if Art. 134 does not api
suit would be barred by Art. 144 of the sam
dule, limitation commencing to run agai
trustee from the dates of the mortgagees ol
possession under their respective mortgage
money Singh v. Jagabandha Roy, I. L. R- '-'
536 ; Yesu Ramji Kalnath v. Balkrishna LaU^n:
I. L. R. 15 Bom. 583 ; Bejoy Chunder Baft"'' '•
Rally Prosonno Mookerjee, I. L. R. 4 Cole. 3'4. an"

( 7293 )

DIGEST OF CASES.

( 7294 )

L dlTATION ACT (XV OF 1877)— contd.
Schedule II — contl.

Art. lS4:—conld.

3l\haba v. Narayana, I. L. R. 9 Mad. 24 i. re-

fc'd to. Per Banerji, ./. — The suit is barrerl by

Ai 134 of the second Schedule to the Indian

Li'tation Act, 1877, which is as much appHcable to

■A it against a mortgagee for value from a trustee

m; a suit against a person to whom the trustee has

■ <i tiiist property for value. Gobind Nath Roy

'ire Koomaree, 11 W. R. 36 ; Yesu Rnmji

V. B(dk-rishna Lakshman, I. L. R. 15 Bom.

duji V. Falcir Chnni, I. L. R. 22 Bom. 225,

nony Singh v. Jagabondhu Boy, I. L. R. 23

>;. referred to. Per Airman J. — The term

' ised " as used in Art. 134 of the second

'.■■ cannot be taken as including " mort-

but Art. 144 would apply and be a bar to

Behari Lal v. Muhammad Muttaki

I. L. R. 20 All. 482

'''Purchased''''

LIMITATION ACT (XV OF lQ77)^^ontd.
Schedule II — conld.

"Ttgaqe by a mortgagee as if complete own-er

■iion by sab-mortgagee for over twelve years —

inr redemption by original mortgagor — Right

ortgagee to be redeemed. In 1864, A mort-

rtrtin lands to B for R7.50. In 1881, B

J ■(! the same lands to C for R5,000. In so

'.' represented himself as the absolute owner

piopcrty, and did not profess to transfer

he interest which he possessed, and which

' ict, only that of a mortgagee. C enjoyed

ion of the lands for a period exceeding twelve

- flora the date of his mortgage. A then insti-

' I suit for redemption ; when it was conten-

l)chalf of C that A was bound to redeem Cs

_■ ■ before he could recover possession of the

v. on the ground that Cs mortgage, which,

the law of limitation, would have been in-

- against A, had become good by C"s pos-

' for twelve years, the property having been

jfchased " from a mortgagee, within the mean-

ini,f .\rt. 134otSch. II to the Limitation Act :—

''' 'Havies, J., dissenting), that C had " pur-

within the meaning of Art. 134. Mana-

AN- ETT.A.N Thamburvx V. Ammu (1901)

I. li. R. 24 Mad. 471

'• — — Inapplicability

«• j«e of involuntary sale. Where, in execution

of . money-decree, immoveable property of a

ju ment-debtor, in which his real interest" is only

' ' ' n mortgagee, is attached and brought to sale,

■■• tion-purchascr is not a purchaser from

"gugee, within the meaning of Art. 134 of

' to the Limitation Act even though the

;■ was sold as the property of the judgment-

without any limitation of his interest

' " i!i. Art. 134 only applies to cases in which the

raf gagee disposes of the propertv voluntarily.

. if" n ^"'"^"^'nga, I. L. R. 12 Mad. 3 in, over-

" • -^^r Shephard and Davies, JJ.— Where a

Pujiase IS made at a sale by the Court in execution

" Ipcrec It is complete, for purposes of limitation.

Art. 134:- contd.

at the date of the purchase, an<l not at the date
of its confirmation bv the Court. Ahmad Kutti
V. Raman Nambudri' (1901) I. L. R. 25 Mad. 99
24. . . Alienation of

trust property by guru of a math for valuable consi-
deration— Suit by his successor to recxivcr possession.
Trustee, alienation by — Adverse possession — Liraiia-
tion. Thegr^tri* or manager of a certain math, who,
as trustee, held certain property belonging to the
mat'i, sold it for value to the defendant in 1871. In
1898 his successor sued to recover it, contending
that the vendor had no power to alienate the trust-
property : -Held, that the suit was barred by limi-
tation, under Art. 134 of Sch. II to the Limitation
Act (XV of 1877). Dattaoiri Guru Shavkargiri
Gosavi v. Dattatraya Krishna Sinde (1902)

I. L. R. 27 Bom. 363

25.

Trust propr.rty-

Wahf — Land held on condition of service — Aliena-
tion. Where trust property is alienated by the
trustees, and the ahenees have been in possession by
purchase for more than twelve years, the suit, as
one for the purpose of restoring the property to the
trust, must fail as being barred by Art. 134. Sch. II
to the Limitation Act (XV of 1877). Sagun Eal-
krishnashet Kanekar v. Kaji Hussen valad
Kaji Ali (1903) I. L. R. 27 Bom. 500

A pplies only

when absolute property sold — Malabar Law — 'Anu-
bhavam' grants, meaning of — Whether the use of the.
word creates an irredeemable tenure depends on the
particular instrument in each case. A stipulation
in a kanom deed that a certain amount in grain or
money is granted to the mortgagee as 'anubhavam '
does not necessarily create an irredeemable tenure.
The word ' anubhavam ' will create an irredeera*
able tenure only when used with reference to the
tenure itseK, but when used with reference to the
allowance such allowance will be perpetual, but not
the tenure. Whether, in any particular case, the
word creates an irredeemable tenure or only a per-
petual rent charge in respect of the allowance must
be decided on the language of the document. If
the amount of the grant is not specified and if the
terms of the document indicate that only a fixed
rent is reserved for the grantor, and the rest of the
produce is given as ' anubhavam, ' an irredeem-
able tenure will be created but, otherwise, if the
amount of the grant is fixed and the rest is reserved
as rent. Theyyan Nair v. The Zamorin of Calicut,
I. L. R. 27 Mad. 202, referred to and distinguished.
Art. 134 of Sch. II of the Limitation Act applies
only to cases where the vendor purports to sell the
property as his absolute property and the vendee
purchases it as such. Radhanath Das v. Oi.^borne.
14 Moo. I. A. 1, 19, referred to and followed.

VVTHILINGAM PiLLAI V. KUTHIRAVATIAH N^IR

(190G) . . I. L. R. 29 Mad. 501

27. _ and Art. 14:4— Temple property

— Manager— Trustee— Lease by manager— Suit by

( 7295 )

DIGEST OF CASES.

( 7296 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule ll—co7itd.
Art. 134 — concld.

subsequent manager to recover the property — Adverse
possession. In 1845, one Krishna Swami granted
a mulgeni (perpetual) lease of the land in question
to the defendants' grandfather, Hanmanna. The
lower Appellate Court held that at the date of the
grant Krishna Swami was manager of the temple
Shri Ramchandra Dovasthan, and that the land at
that time belonged to the temple. In 1S54 Krishna
Swami 's successor, the then manager of the temple,
sued Hanmamia (the lessee) for enhanced rent, but
the latter pleaded his lease, and the suit was with-
drawn. In 1885 the then manager brought a
similar suit against the defendants, with a similar
result. In April, 1900, the present plaintiff, as
manager of the temple, filed this suit to eject the
defendants, alleging that they were yearly tenants
and that he had given them notice to quit._ He
contended that his predecessor. Krishna Swami had
no power to alienate the property of the temple : —
Held, that the suit was barred by limitation. If the
original lessor was not a trustee for the temple of
the land in question, then the defendants had held
by adverse possession, and the suit was barred
under Art. 144 of Sch. II to the Limitation Act (XV
of 1877). If the original lessor was a trustee, he had,
as such, alienated the land for valuable considera-
tion, and the suit was barred by Art. 134 of Sch. II
to the Limitation Act. The fact that there was a
lease to the defendants, and not an absolute aliena-
tion, made no difference. A mulgeni lease is a
purchase pro tanlo of the interest thereby assured.
Narayan Manjaya v. Ramchandra Devasthan
(1903) . . I. L. B. 27 Bom. 373

- Art. 135 (1871, Art. 135)—

Suit for possession

hy mortgagee c/ deed of conditional sale — Foreclosure
— Cause of action. A conditional mortgage-deed
was drawn out, stipulating for the repayment of the
loan by annual instalments in nineteen years, and
emjwwering the mortgagee to foreclose if two ins-
talments remained unpaid on any third yearly ins-
talment falling Awe; — Held, on the construction of
the mortgage-deed, that the mortgagee was not
thereby limited to foreclose as soon as the first
default in payment of those instalments occurred
and not afterwards ; but that the mortgagee was
authorized in proceeding to foreclose if there were
subsequent defaults, any previous default notwith-
standing ; in fact, there is nothing in law to limit the
time within which a mortgagee may foreclose, if,
notwithstanding one or more default, the mort-
gagee's right is not repudiated, but recognized,
'ihe mortgagee's right to sue for possession accrues
upon the final foreclosure, and he can sue at any
time within twelve years from that date, under cl.l2,
S. 1, Act XIV of 1859. BULDEEN V. Golab Koon-

WEB . Agra F. B. 102 : Ed. 1874, 77

Mortgage-

Dispossession of mortgagor. The rule that the date

lilMITATION" ACT (XV OF 1877)-co7 .
Schedule 11— contd.
Art. 135 — contd. .

of expiry of the year of grace is the date from 'lit
a mortgagee's cause of action to obtain possiic
of the mortgaged estate is to be calculated, alii
only when the mortgagor remains in peaceablin
undisturbed possession of the estate. But le
the mortgagor is dispossessed and his title disj: e(
and another person obtains possession of the e iti
the possession of the new holder becomes adve : t
both mortgagor and mortgagee. The mortg; !e
cause of action against the new holder will at
from the date on which the latter obtainecijc
adverse possession, unless when the mortjgc
contests the title of the new holder, aiid litijio
ensues between them, in which case the mortge
is not bound to take action upon his mortgageint
that Htigation is decided. But if the mortgfbr'
title is rejected, and his possession is disturb! b
an adverse one, the mortgagee's cause of tio:
against the new holder commences from the df o:
which the latter obtains possession on his tit ad
verse to the mortgagor which has been confirm \y
the Courts. Ramcoomak Sein v. Peosonoco iai
Sein .... W.K.18647f
.See Sheoumber Sahoo v. Bhowanet-ie:
Kulwau 2N.W,2J

Suit for js

sion — Mortgagor transferee, possession ly Ii
1835, A, a mortgagee, obtained a decree in aire
closure suit, subject to two prior mortgager Ii
1844 B purchased the rights of the mortgagor th(
mortgaged property, and in 1854 redeemed th;w<
prior mortgages : — Held, that A was not barr' bi
the statute of hmitations from asserting his 1 1; t(
the land subject to the prior mortgages. ]CG
WAN Doss V. Behary Khan

Marsh. 191 : 1 HajlSi

4^ . ■ Suit /i

session after foreclosure of mortgage— Advers< ,
sion — Possession of dar-patnidar. Where a i
iff, who had acquired the right of a mortgas^'
patni turruf, had foreclosed the mortgage vu:
decree of the Supreme Court in 1852, but ha'l
ted to take out execution until 1869, when i
sought to obtain possession ; and defendant
a cfaim to the turruf on the ground that li
decessor in title had as dar-patnidar paui
revenue to save the patni, and had taken ]
sion of the estate under s. 13, Regulation \ '
1819 ; and the lower Courts found that |
was entitled to recover possession because n
patnidar had recovered the amount of his ji
in the intervening years -.—Held, by the High
that the plaintiff's claim was barred by hnin
^eW, also, that the dar-patnidar 's occupatiJ_
the patni after his hen on it had expired was i. "«
verse possession, which the plaintiffs were Doi ^^^
resist as soon as they became aware of it 5 *^'- , ^
this obhgation was not loosened by the fact tii
mortgagees, on the expiry of their lien, were .">"*

( 7297 )

DIGEST OF CASES.

( 7298 )

LIMITATION ACT (XV OP 1881)— contd.
Schedule ll—contd.

Art. \S5—covAd.

<■ tiiid out the ownt-rs and deliver up the estate to
hem. Kanti Ciuxder Mookerjee v. Bamun
poss Mookerjee . . 25 W. R. 434

j 6« Purchaser

Vom mortgagor — Adverse possession. Where a

arty bond fide purchased from another as his owti

roperty land in fact mortgaged, and obtained pos-
!?88ion and mutation of names, his title was held
•■ be adverse to the mortgagee. After a bond
\. -purchaser had been in open possession more than
'.velve years, and after the lapse of more

lan twelve years from the accrual to the mort-
■ igee of the right of entry under the mortgage-

eed (which was in the English form), the mort-
Kgee sued the purchaser to obtain possession of the
iroperty : — Held, that the suit was barred. Quare .-

'hether in cases in the mofussil, where the mort-

igor continues in possession, paying rent to the
jOrtgagee, the law of hmitation begins to run from

16 date of the right of entry. Brajaxath Kuxdtt

'l''WDHRY V. KHELAT ChAXDRA GhOSE

8 B. L. E. 104 : 14 Moo. I. A. 144
16 W. K. P. C. 33

(8.C. in High Court, Khelat Chunder Ghose 7j.
VKACHCRN KooxDoo Chowdhry 6 W. K. 269

*"• Adverse posses-

ijn — Purchaser at a sale in execution of decree.
jie possession of a purchaser at the sale in execu-
l>n of decree, wnthout notice of a mortgage of the
lopert}-, is adverse to the mortgagee, and a suit
1 disturb his possession must be brought within
elve years of the commencement of such posses-
■n. Axaxd Mayi Dasi i-. Dharexdra Chaxdra
>okerjee

8 B. L. R. 122 : 14 Moo. I. A. 101
16 W. R. P. C. 19

jAfl^ming decision of High Court in Dhuruxdrq

i:rxDEE Mookerjee v. Annund Moyee Do.s.see

1 W. R. 103

'■ — Suit for posscs-

■|« — Conditional mortgagee, title of. It is not
ij'essary for a conditional mortgage, if he be in

Sll'Session at the expiry of the year of grace, to
ng a suit to complete his title. The limitation
lod should be computed from the expiry of the
lj» of grace, if the mortgagee be then in po.-session.
|boB Chund 1-. Leela Dhur . 3 Agra 103

Mortgage — Suit

■possession — Foreclosure — Beng. Peg. X Vll of

ij'6', s. S — Cause of action. A, by a Bengali deed

O|'onditional sale, dated the 10th of August 1853,

cjrt^aged two estates, the deed providing that the

rt^age-debt should be repaid on the 9th of July

5. and that, on default of payment, the deed of

ditional sale should become one of absolute sale,

a;, that the mortgagee should thereupon acquiie

^ abBolute proprietary right, and might enter

VOL. IIT.

LIMITATION ACT (XV OP 1877)-con<i.
Schedule II — con Id.
Art. 135— contd.

upon and retain possessi(jn of the mortgaged pro-
perty. A failed to pay at the time stipulated, and
on the I8th of December 1850 her right, title, and
interest in the estates were .sold in execution, and
purchased by the defendants without notice of the
mortgage. On the 3rd of April 1866, the plaintiff
bought the mortgagee's interest, and in August
1867 he instituted foreclosure proceedings under
Regulation XVII of 1806 against the deiendants,
the auction-purchasers. In a suit instituted by the
plaintiff on the 22nd January 1874 against the'auc-
tion-purchasers to recover possession of the mort-
gaged property : — Held, that the cause of action
aro.se on 9th July 1865, w^hen default was made in
payment of the mortgage-debt, and the suit, not
having been instituted within twelve j-ears from
that date, was barred by s. 1, cl. 12, Act XIV of
1859. No new cause of action arose by reason of
the foreclosure proceedings on the expiry of the
year of grace in August 1868. Dexoxath Gaxgoo-
ly v. NtTRSixG Prosahad Das

14 B. L. R. 87 : 22 W. R. 90

9. Mortgage — Suit

for possessio7i — Foreclosure — Cause of action. The
defendant mortgaged certain immoveable property
to the jjlaintiff by a byebil-wafa, or deed of condi-
tional sale, dated, 20th January 1851. The deed
stipulated that the mortgage-debt should be repaid
on the expiration of three J'ears from the date of the
execution. The money was not repaid at the stipu-
lated period, and the mortgagor remained in pos-
session of the property, but there was some evidence
to show that he had made payments of interest on
the mortgage-debt to the plaintiff. In February
1870 the plaintiff took proceedings to foreclose the
mortgage, and on 16th February 1872 he instituted
a suit for possession of the property. The defence
was that the suit was barred, the plaintiff having
been out of possession for moi-e thant twelve years
previous to the institution of the suit : — Held, that
payment and acceptance of interest was evidence of
the continuance of the relation between the parties
created by the mortgage-deed ; and until the mort-
gagor advanced any rights adverse to the mort-
gagee, the possession of the mortgagor was per-
mi.ssive, and no cause of action accrued to the mort-
gagee. MaNKEE KooKK r. .MrNMKi

14 B. L. R. 315 : 22 W. R. 543

10. ■ Suit for fore-
closure of mortgage — Cause of action. The plaintiff,
on the 2nd of August 1847, became mortgagee of a
house under an instrument of mortgage, winch pro-
rided that, in default of payment by the mortgagor
of tlie mortgage loan within five years, tlie house
should be considered as absolutely sold to the mort-
gagee. Default was made in payment and the
mortgagee entered into possession, and continued
in pos.scssion until 1858, when he was dispo-^sessed
by the mortgagor. On the 29th March 1866, the
plaintiff filed a suit in the nature of a fore<losure suit

10 z

( 7299 )

DIGEST OF CASES.

( 7300 )

LIMITATION ACT (XV OF 1871)— con'd.

Schedule 11— contd.

Art. 135— contd.

against his mortgagor, to which the defendant plead"
ed the law of limitation : — Held, that the plaintiff's
cause of action arose in 1858, when he was dispos-
sessed by the defendant, and that he had, under Act
XIV of 1859, s. 1, cl. 12, twelve years from that
date within which to file his suit. Lakshmibai v.
ViTHAL Ramchandra ... 9 Bom. 53

LIMITATION- ACT (XV OF 1877 -conf,
Schedule II — contd.

11.

Suit by mortgagee

against mortgagor and purchasers from him — Regu-
lation XVII of lS06~Transfer of Property Act (IV
of 1SS2). A mortgage by conditional sale, before
the operation of the Transfer of Property Act, 1882,
on default made in payment, iiroceedings having
been taken by the mortgagee under Regulation
XVII of 1806, entitled the mortgagee to possession
after the year of grace. On the mortgagor's right
of possession being thus brought to an end without
a suit for foreclosure, a right of entry accrued
to the mortgagee, whose suit for possession, unless
brought within twelve years from the date ' ' when
the mortgagor's right to possession determined,"
was barred by Art. 135 of Sch. II of Act XV of 1877.
This Regulation foreclosure was applied to a mort-
gage, dated 17th November 1865, between Hindus,
with power of entry and sale, in the English form,
of land in the 24-Pergunnahs District (which
mortgage therefore received the same effect as a
mortgage by conditional sale), and the proceedings
were perfect on or before 31st March 1873 as against
the mortgagor, whose right of possession deter-
mined on the 17th February 1866. Parcels of
the mortgaged land had been sold by the mort-
gagor down to August 1866, and the purchasers
not having been served with notice of the above
proceedings under the Regulation, were not parties
thereto, so that the relation of mortgagee and
mortgagor continued to subsist, as between them
and the mortgagee, notwithstanding the determina-
tion of the mortgagor's right of possession. In
a suit brought in 1882 against these purchasers,
as also against the mortgagor for foreclosure and
possession, by a transferee, who had acquired the
mortgagee's interest in 1819 -.—Held, that the
mortgagor's right of possession determined on the
above date, and that the mortgagee's right of suing
for possession having been extinguished on the expi-
ration of twelve years from that time, 'viz., on the
17th February 1878, such right was not revived by
the subsequent creation of suits for foreclosure, on
the coming into operation of the Transfer of Pro-
perty Act, 1882 ; and that the title of the plaintiff
made through the mortgagee, to sue the purchasers
for possession of the mortgaged land, was barred
by time under Art. 135 as against them. The suit
therefore was dismissed as against the purchasers ;
but as against the mortgagor, who made no defence,
the right of possession in the mortgagee consequent
on the proceeedings under the Regulation in force
till Its repeal in 1882 supported the decree made
'—■ ' lum by the Courts below from which he

Art. 135— eoncld.

had not appealed. Srinath Das v. Kheti^

MoHux Singh . . I. L. R. 16 Calc, £3

L. R. 16 I. A. 5

12. and Art. 14tl— Mortgagor , i

mortgagee — Purchaser from tnortgagor — Adverse ,•-
session — Beng. Reg. XVII of 1806, s. S—Tran.r
of Property Act, s. 86. Under Act XIV of ISota
mortgagee was ordinarily bound to bring his it
within twelve years from the date of default, d
was barred thereafter, unless it could be showi. ir
might properly be inferred that the mortgage or
the person in possession held by permission of ^e
mortgagor after the date of default. On the ].h
of November 1865, certain property situate in le
district of the 24-Pergunnahs was mortgaged byie
owner thereof to secure the repayment of R15^5
with interest at 18 per cent, on the 17th of Febn .7
1866. The mortgagor and mortgagee were Hinis,
and the mortgage was in the ordinary form oin
English mortgage of real property. After the te
of the mortgage, and before the 15th of Febnry
1872, the mortgagor sold various portions o:he
mortgaged property. On the 15th of Febrry
1872 the mortgagee filed a foreclosure petitioin
the Court of the Judge of the district of the:4-
Pergunnahs under Regulation XVII of "1
Notice of the petition was served on the mci
alone. Neither principal nor interest was p
the mortgagor, and on the 6th of September j-
the assignee of the mortgagee filed a suit for re-
closure against the mortgagor, and the purch^r«
of the various portions of tlie property, unci
provisions of the Transfer of Property Act, 1
for foreclosure and sale : — Held, that as again
purchasers from the mortgagor the suit was b; eu
by limitation under Art. 135, Sch. II of Act 2 of
1877. Shurxomoyee Dasi i^. Srinath Das

I . L. R. 12 Calc.;U

Art. 136 (1871, Art. 136)—

1. Suit for

sion of a tenure by a purchaser from the pw
from a third person who bought at an auctn
never obtained possession — Civil Procedure
1882, s. 310— Confirmation of sale— Lin
Act, Art. loS. In a suit for possession of a ten
a purchaser, whose vendor purchased it at a 1
sale from a third person who bought at an a.
but never had obtained possession, the deft <
objected that the suit was barred by hmitat
Held, that Art. 136, Sch. II of the Limitati^
(XV of 1877), apphed to the case, and the pr
limitation would run from the date when th^
dor of the plaintiffs first became entitled to p •
sion, i.e., when the sale was confirmed, andi^s*'
quently the suit was not barred. MOHiMAtiW-

DER BhUTTACHARJEE V. NOBIN ChUNDER RO:

I. L. B. 23 Ca: ^

.mot

2. Title of vew

extinct at the time the vendee's suit is broi

{ 7301

DIGEST OF CASES.

( 7302 )

jMITATION" ACT (XV OF 1877)-co»fd. } LIMITATION" ACT (XV OF 1877)— conid.

Schedule II — contd.

►I Art. IZQ—contd.

fnsfer of Properly Act {IV of 1SS2), s. 41— Trans'
i'by ostensible owners — Inquiry by transferee as to
It of transferors — Reasonable care. In Art. 136 of
t second Schedule to the Indian Limitation Act,
1 /', the words in the third column relate to the
b lining of the dispossession referred to in the
fii column, and the meaning of the Article is that
if apposing no sale had taken place, the vendor's
ti' would have been aUve at the time the vendee's
n, -1 brought, such suit is not barred : but, on the
01 T hand, if the vendor had been for twelve years
«i of possession at the date of the vendee's suit,
8ii a suit would be too late. In a suit such as is
c( emplated by Art. 136, when the purchaser suc-
<c:s in 8ho\ving that the exclusion of his vendor
fr|i possession took place within twelve years of
tliinstitution of the suit, he succeeds in showing
tl his suit is within time. A Government olficial,
oving zamindari property in the district in which
ill as employed, caused that property to be record-
'(' revenue papers in the names of his young
! ho sons sold portions of the property, and
-1(1 others. The vendee and mortgagee
! himself that the property had been re-
tor some years in the names of the sons, but
'Pped, and made no further inquiries as to
the property really belonged to the sons,
' '^ the ostensible owners, or not ; — Held,
transferee, though acting in good faith,
laken reasonable care to ascertain that the
■■"V had power to make the transfer. Partap
. Saiyida Bibi (1901)

I. L. B. 23 All. 442

and Art. ISlSuit by purchasers

'hird persons for possession. Arts. 136 and
^ 'h. II of the Limitation Act (XV of 1877)
' suits brought by purchasers against third
in possession of the land, in whose favour
'11 runs against the purchaser, in the same
' would against the owner with whose rights
; chaser is clothed. LakshjiXx Vinayak
'^ sARNi f. BiSANSiNG I. L. R. 15 Bom. 261

J~^ and Art. 131— Ejectment. On

' "~'h of September 1867, A executed a convey-

i ortain land to B for valuable consideration.

>ime day A acknowledged tlie execution of

'1 before the Registrar, who afterwards

'1 the same on the 19th of October 1867; B

1 tered into possession of the land. On the

November 1874, C purchased this land at a

xecution of a decree which he had obtained

R ; C did not enter into possession of the

It on the 26th of September 1879 brought a

the recovery thereof against A who had all

I ■mained in possession -.—Held, that the suit

Y mrred by limitation under Arts. 136, 137, Sch.

^M the Limitation Act, XV of 1877. Anand

^0 ARi V. Ali Jamin . L L. R. 11 Calc. 229

Schedule 11— contd.
Art. 136— co«c/d.

and Art. 12Q— Transferee of

auction-purchaser — Possession — " Vendor," mean-
ing of. Art 138 of the Limitation Act (XV of
1877) apphes to the case of a person claiming
through the auction-purchaser and not merely to
the auction-purchaser alone. The expression
'■ vendor " in Art. 136 means a vendor other
than the auction-purchaser mentioned in Art.
138. Mohima Chunder Bhuttacharjee v. Nobin
Chandra Boy, I. L. R. 23 Calc. 49, overruled. Sati
Prosad Sen v. Jogesh Chunder Sen (1904)

;I. li. B. 3lCalc. 681
s.c. 8 C. W. N. 476

6. and Art. 144— Z/mtZw law — Joint

family property, suit to recover — Purchaser of a share
of joint family property when vendor is out of pos-
session. In a suit for a share of a joint family pro-
perty where the claimant is out of possession the
material issue is when did the possession of the
defendant become adverse to the plaintiff or the
person under whom he claims by purchase. Per
Garth, C.J. — The onus Ues upon the purchaser of a
share in a joint family propertj'^ whose vendor is
out of possession to show that the exclusion, if any,
took place within twelve years of the institution of
the suit. The rule of hmitation apphcable to a suit
by a purchaser of a share in a joint family property
whose vendor is out of possession at the date of the
sale is Art. 136 of Sch. II, Act XV of 1877. Per
Ghose, J. — The rule apphcable to such a suit is
Art. 144. Ram Lakhi v. Dxtrga Charan Sen

I. li. B. 11 Calc. 680

7. — Arts. 136 to 138 and 144-

Symbolical possession — A uction-purchnscr — Suit for
possession from judrjment-debtor. \\here, an auction-
purchaser at a Court sale has obtainetl symbolical
possession, he or his assigns may sue the judgment-
debtor for actual possession, within twelve years
from the date of obtaining such symbolical posses-
sion. Art. 144 of Sch. II to the Limitation Act
(XV of 1877) applies. Arts. 136, 137 and 138 of
Sch. II to the Limitation Act (XV of 1877) refer
to cases where no possession, formal or actual,
has been obtained through the Court. Art.
136 applies to a private purchaser from a
person not in possession. Art. 137 applies to an
auction-purchaser of the rights of a person not in
possession. Art. 138 applies when the actual
purchase is made of the rights ft r a judgment-
debtor, who is in possession at the date of the
sale. V.'hen an auction-purchaser or his assign
has obtained formal possession, but is disturbed
by the judgment-debtor or his heirs, who have con-
tinued in actual possession. Art. 144 applies. Gor.\L
V. Krishnarao (1900) . I. L. B. 25 Bom. 275

. Art. \Z1— Mortgage of joint property —

Share of co-owner sold in execution of decree — Sub-
sequent sale of the mortgaged property by all co-owners
— Redemption of jnortgage — Suit for partition and

10 z 2

( 7303 )

DIGEST OF CASES.

( 7304 )

LIMITATION ACT (XV OF 1877)-
Schedule 11— contd.
Art. 137 — condd.

contd.

LIMITATION ACT (XV OF 1871}- contd
Schedule 11— cjntd.

redempUon by purchaser at Court-sale — Adverse
possession. Three undivided brothers (B, R and
A) mortgaged part of their joint property (plot 1)
in 1870, and the rest (plot 2) in 1874. In 187.5 B's
share in both plots was sold in execution of a decree
against him and was purchased by the plaintiff.
In 1877 B and his two brothers sold plot 1 to defend-
ants, Nos. 3 to 6, who at once paid off the mortgage
of 1870, and took possession. On the 11th Feb-
ruary 1877, the three brothers paid off the mort-
gage of 1874 of plot 2, and in the same month mort-
gaged that plot to the defendants with possession.
On the 26th August 1890, the plaintiff sued for pos-
session of B's share by partition and redemption if
necessary: — Held, that the suit was barred by Art.
1:^.7 of the Limitation Act (XV of 1877). B became
entitled to possession of his share of plot 1 in 1877 ,
■wlien the mortgage of 1870 was paid off by the
defendants, and their postession had been since then
adverse to the plaintiff. As to plot 2, B had become
entitled to possession of his share therein on the
11th February 1877, when the mortgage of 1874
was redeemed. RamcTiandra v. Sadashiv, I. L. R.
11 Bom. 422 ; Bliaudin v. Shaik Ismail, I. L. R. 11
Bom. 425 ; Faki Abas v. Fain Nurudin I. L. R. 16,
Bom. 191 ; and Naro v. Ragho, P. J. {1892), 412,
referred to. Gajiesh Mahadeo Bhandaekar v.
Ramchandra Sambhaji Mhaskar

I. L. B. 20 Bom.' 557

Art. 138 (1871, Art. 138)-

See Civil Procedure Code, 1882, ss. 244,
318, 319 . . I. L. B. 31 All. 82
See Execution of Decree.

I. L. B. 29 All. 463
See Right of Suit — Fresh Suits.

I. L. B. 9 Cale. 602

Suit for possession

by purchaser at sale for arrears of revenue — Cause of
action. Under the general Law of Limitation, the
cause of action in a suit for possession by an auction-
purchaser at a sale for arrears of revenue arises
from the date of purchase. Hureee Mohun
Thakoor v. Andrews . . "W. B. 1864 30

2. • Sale in execution

of decree by Sheriff — Period from which time rum
As land may pass by mere parol between a Hindu
vendor and purchaser, the sale by auction by the
Sheriff is enough, without his bill-of-sale, to com-
plete the transaction as between vendor and pur-
chaser, for the purpose of the Law of Limitation ;
therefore, where the suit was brought within the
time fixed by the Law of Limitation, counting from
the date of the Sheriff's bill-of-sale, but too late
counting from the time of the acutal auction-sale :
— Held, that the plaintiff was barred. Mohesh
Chunder Chatterjee v. Tssur Chunder Chat-
TERjEE ... 1 Ind. Jur, N. S. 266

Art. 138— contd:

PurchaM I

mortgagee of mortgaged property. A\'hile a mor
gagee was in possession of the mortgaged premise
the lands were sold for arrears of Governmei
revenue, and purchased by the mortgagee : — Hd
that his possession as mortgagee was superseded k'
his possession as piirchaser, and that the Statute i,-
Limitation commenced to run from the beginnir'
of his possession as such purchaser. Byku>'
Dhur Singh v. Lalla Bhugobut Sahoy I

Marsh. 391 :2 Hay 4'

4. Suit by purchas^

at sale for arrears of rent of patni tenure — Cause '
action — Adverse possession. A let an under-tenu'

1 to B, which under-tenure was sold for arrears of re'
under s. 105, Act X of 1859, and bought in by -i
On proceeding to take possession, A found that'
had trespassed upon the under-tenure during jB
tenure and had held possession for more than tweli

1 years. A sued to recover possession of the undf
tenure and it was held by the senior Judge of t

J Division Bench (Bayley, J.) that A's cause
action was the act of dispossession by C, and \\\
the suit was barred, more than twelve years havi
elapsed ; and that A 's right to sue was not aiJert
by the fact that B' s tenure was still ruiuin;
The junior Judge (Phear, J.) held that t
the suit was not barred ; that the cause of actii
to A accrued when he obtained back the proper
at the auction-sale ; and that during the peri^
of encroachment the cause of action did D|

\ arise to B and pass from Bio A during the tii

j the patni lasted, the patni entirely disappear!

I in the superior title of zamindar vendee. Held,

' the Appellate Court, in confirmation of the vicM'
Phear, J., that the cause of action to A, who wa^i

\ purchaser of an estate free from incumbranf;
against C, who was a trespasser, and had encroaC|
ed on B, the defaulter, must be taken to accrj
at the same time as his, ^'s right to turn out und'
tenants of the defaulter, — viz., from the time of t
purchase of *the tenure of the defaulter ; and t
fact that A was both talukdar and purchaser '
not prevent him from exercising the same r _
as any other purchaser would be entitle;
WooMESH Chunder Goopto v Rajnarain i
10 W. E.

Sec Rajanrajn Roy v. Woomesh Chvv
GooPTO 8W.B.4-

5. Survey pro^''

ings — Suit for possession. WTiere the plam'
alleged that the disputed lands were fraudulcn
caused to be demarcated with defendants' zain
dari at the time of the survey, and the Appeli'i
Court had held that, as plaintiffs were not partf-
to the survey proceedings, the present suit '
barred by hmitation under the decision in Tf oo'"^'
Chunder Goopto v. Rajnarain Roy, lO W- J'-
—Held, that, in order to bring a suit within the p

( 7305 )

DIGEST OF CASES.

( 7306 )

DOTATION ACT (XV OF 1877)— co»«d.
Schedule II -contd.

_ Art. 138— contd.

ov f that decision, it was not enough for plaintiffs

) 84 that this fraud was committed against them

>• t defendants, and that these defendants were

ill possession of the lands as belonging to them

I thcr neighbouring proprietors ; but that it

^ary for them to show that they themscl-

II possession of the disputed lands at the

I they granted the patni to the defendants

I hey made over that possession to those

~ at that time. Gopal Kishen Strcar v.

mnKoondoo. . 17W.B. 175

Suit for possession

I action. Where formal possession was

the Court, but the defendants have re-

ictual possession, the plaintiff must still

,■ ,,., lause of action from the date of sale.

jWi.R Ai.i V. Ramchand

2 B. L. R. Ap, 29 : 24 W. R. 419 note

' RiNDUBASHINI DASI V. RENNY (RaIXEY)

7 B. L. R. Ap. 20 : l5 W. R. 30

Poss€ssio7i, suit

I II -purchaser, suit hy, for possession.

1 as shown in a suit by an auction-purcha-

a in execution sale that the formal possession

ita d by him through the Court had not been

'" 1 by any act of possession, and consequently

I lieen infructuous : — Held, that the pur-

fntitled to bring a suit to obtain actual

hut was bound to bring it within twelve

the date of the sale, the period pre-

Art. 138, Sch. II of the Limitation Act

T7). The decisions in Kristo Gohinio

ugn Pershad Surmah, 25 W. R. 372, and

• <ir Base v. Ishan Chunder Chuckerbulty,

• .. H. 2iS, require such purchaser to obtain

8«iion through the Court before bringing his

it. lit they do not preclude him from enforcing

* ri it by suit when the formal possession given

' tl 3ourt has failed to put him in actual posses-

'"• iKrishna Lall Dutt v. Radha Krishna

RRJL . . . I. L. R. 10 Calc. 402

8. Suit for possession

ft haaer at sale in execution of decree. A pur-

•ii it a sale in execution, not having applied to

•t .rt for possession under s. 318 of the Code of

WTOcedure, brought a regular suit to obtain

ifa on of the property purchased : — Held, that,

'ho h a remedy might be open to the plaintiff

I s. still he «as not precluded from bring-

ir suit, the remedies being concurrent.

' the date of the sale, ' ' in third column

\U;)8, Sch. II of the Limitation Act; 1877,

:nii|the date of the actual sale, and not that of

Srmation of such sale. Kishori Mohun

lOWDHRY V. Chunder Nath Pal

I. li. R. 14 Calc. 644

LIMITATION ACT (XV OF 1877)— cr^ntd.
Schedule II — contd.

Art. 138— co«/(7.

lands to (? i? by a registered deed of that dat«. In
1870 G E obtained a money-decree against R and
G, and in execution put up the mortgaged land for
sale. The plaintiff purchased it without notice of
the mortgage, and in February 1872 obtained pos-
session through the Court. In the meantime, G
R brought another suit upon his mortgage against
his mortgagors. He obtained a decree, and in
April 1872 ejected the plaintiff and obtained pos-
session. In 1883 the plaintiff filed the present
suit against R, G, and G R to recover the land : —
Held, that the plaintiff's suit was not barred by
Art. 138 of Sch. II of the Limitation Act (XV of
1877), inasmuch as the plaintiff had obtained pos-
session through the Court within the twelve years
preceding the suit. Agarchand Gumanchand v.
Rakhma Hanmant . I. L. R. 12 Bom. 678

10.

and Art. 136 — Suit for posses-

- Suit j or purchaser

n execution of decree — Delivery of possession
I. In 1867, It and G mortgaged certain

sion by assignee of purchaser at sale in execution of
decree. Limitation Act, 1877, Sch. II. Art. 138, and
not Art. 136, is applicable to a suit brought by the
assignee of a purchaser of land at a Court-sale to
obtain possession of the land. Arumuga v.
Chockalingam . . I. li. R. 15 Mad. 331

11. Purchase at

Court auction nnd sale in execution of decree — Suit
for possession of land — Cause of action. In a suit
for possession of land instituted on the 1st April
1891, it appeared that the land in question had
been purchased by the plaintiff in a court auction
held in execution of a decree on the 20th June
1878, and that the sale to the plaintiff was con-
firmed on the 31st March 1879, which was the date
upon which the certificate issued. The plaintiff
failed to prove that the judgment-debtor was out
of possession at or subsequently to the date of the
sale : — Held, that the suit was governed by the
Limitation Act, Sch. II, Art. 138 ; that " the date
of the sale ' ' in that Article means the date of the
actual sale, not the date of the confirmation of the
sale ; and that accordingly the suit was barred by
limitation. Kishory Mohiui Roy Chotcdhry v.
! Chunder Nath Pal, 1. L. R. U Calc. 641, and
Bhyruh Chunder Bundopadhyax. Soudamini Dabee,
1. L. R. 2 Calc. US, followed. Vexkatalingam
V. Veerasami . I. L. R. 17 Mad. 89

12. Suit for possession

I by assignee of purchaser at sale in execution of decree
I —Civil Procedure Code, 1SS2, ss. 316 and 31S.
\ A the purchaser at an execution-sale of a lunue, of
I which the judgment-debtor was in possession,
sold it, agreebig at the ^ame time to obtain the sale
I certificate and to deliver possession of the house.
I After more than three years had expired, he applied
for the certificate, which, however, was refused on
the ground that his apphcation was time-barred.
On A 's death, his widow made a second application,
wliich was granted. In a suit by the assignee of A to
j recover possession, the widow set up a title thereto
i under a sale by the original owner (the judgment-

( 7307 )

DIGEST OF CASES.

( 7308

LIMITATION ACT (XV OF 1671)— contd.
Schedule II — rontd.

Art. 138— concld.

LIMITATION ACT (XV OF 1877)-co,.

Schedule II — contrh
Art, 139— contd.

debtor) to herself and others executed more than
three years after the Court sale : — Held, that, since
A the execution-purchaser would be barred, the
plaintiff was equally barred. Arumuga v. Chocka-
lingam, I. L. E. 15 Mad. 331, followed. Kishori
Mohon Roy CJiowdhry v. Ghunder Nath Pal, I. L. B.
14 Calc. 644, distinguished. Pullayya v. Rama-
YYA ... I. L. R. 18 Mad. 144

13.

Article applic-

able to suits by assignees of auction-purcha-ser-
Assignee of auction-purchaser. Art. 138 of the
Limitation Act (XV of 1877) is not limited to suits
by the auction-purchaser himself, but applies also
to suits by his assignees. Limitation run 5 from
the date of the sale. Mohiina Chunder Bhattachar-
jee V. Nobin Chunder Roy, I. L. R. 23 Calc. 49,
dissented from. Govind v. Gangaji

I. L. R. 23 Bom. 246

14.

and Arts. 9] and 95 — Suit I

for possession of immoveable property — Siiit for
cancellation of instrument. The purchasers of pro-
perty sold in execution of a decree, having been
resisted in obtaining possession of the property
by a person claiming under a mortgage from the
judgment-debtor, sued for possession, by avoid-
ance of the mortgage, alleging that the same was
coUusive and fraudulent. The plaintifiEs did not
ask for the cancellation or setting aside of the
instrument of mortgage : — Held, that the laAV of
limitation governing the suit was not Art. 91 or
95 of the Limitation Act, but Art. 138. Hazari
Lall V. Jadaun Singh, I. L. B. 5 All. 76;
Bamaus !r Pandey v. Baghuber Jati, I. L. B. 5 All.
4V0 ; Sobha Pandey v. Sahodhra, I. L. B. 5 All. 322,
and Raj Bahadur Singh v. AcJ,a7nbit Lal,L.B. 6 LA .
110, referred to. Uma Shankar v. Kalka Peasab
I. L. R. 6 All. 75

alleged by the plaintiff to form part of his zan-
dari, and to be wrongfully held by defendanby
virtue of the execution of a decree of the late ( n-
missioner of the Northern Circars passed in 14,
the defendant pleaded that he held on a perma nt
lease subject to a fixed quit-rent, that he andiis
ancestors had held on that tenure since and -e-
viously to the Permanent Settlement, and tha'he
quit-rent had been received from him by the pi -t-
ifE : — Held, that, as the defendant stated tha'he
plaintiff had received kattul)andi from him loe
1857, the plaintiff's claim to eject could not be is-
posed of absolutely on the ground that it was ir-
red by the Act of Limitations. Vaikich.u
Stjeya Narayana v. Nadiminii Bhagavat Pa x-
JALi Shastei ... 3 Mad 20

2 . ■' Landlord ni

termn' — Btcnpt of rent. A, a Hindu, died, 'ene
his widow, B, and mother, C. B adopted '
granted a patni pottah to E of certain j
belonging to the estate of A. During the i
of D, i? received the rent from £, and aft
D, on attaining majority, reaUzed rent frc>i
suits under Act X of 18r>ft. Twelve yeai
attaining majority, D sued for cancellatioi:
patni lease, and for obtaining khas possessii
property; — Held, that the suit was not i.,
BtTNWARi Lal Roy v. Mahima Chandra Knu l
4 B. L. R. Ap 86 : 13 W. E 67

See SHxrMBoo>'ATH Shaha v. BuNWAr.Ki
Roy 11 W^

Arts. 138 and 142—

See Chota Nagpue Landloed and
Tenant Peoceduee Act (Bengal Act
I OF 1879), s. 37 . 12 C. W. N. 617

Art. 139 (1871, Art. 140)—

See post, Aet. 144 — Adverse Possession,
I. L. R. 26 Bom. 442

See Ejectment, suit for.

11 C. W. N. 661

See Landlord and Tenant — Natuee of
Tenancy . I. L. R. 27 Bom. 515
See ' Title — Miscellaneous Cases.

I. L. R. 25 Mad. 507
See Transfer of Peopeety Act, 1882.
ss. 167, 111, 116.

I. L. R. 31 All. 318

1. Adverse possession

— Plea of receipt of rent. In a suit to recover, with
mesne profits and other incidents a jirayati vUlage

. Adver.st

and uncultivated land-

sion — Cultivated
wals. The owners of a patni of Bishenpiv
to set aside a survey award and alter a mn i
which demarcated certain lands as cultiv;'
uncultivated belonging to Government, an '
possession of ghatwals. Certain ghatwa!'
part of the zamindari of Bishenpore, hi
given up to the Government by the zamii
1802, and the ghatwals had since paid a q
to Govenment for the same. The plain'
came purchasers of the patni in 1839 uml'
for arrears. They admitted that, as to tin
tivated lands, they had never been in actn
session or in the receipt of any rents since ti-
chased, but they alleged that, from that (i;
ghatwals, fraudulently or dishonestly refuse \
them rents in respect of the cultivated h
they had done to their predecessors ; ami '
ghatwals had encroached upon the uncu-
lands.- The ghatwals, on the other hand.
that they never had paid rent to the patnui
that the lands were all included withui tn
which they paid a quit-rent to Government .
(Loch, J., dissenting), that the ghatwals_ if
to have been the tenants of the plaintiifs
predecessors, could not acquire a title again
by adverse possession of twelve years. L
COCK, C. J.— The issues are : (i) whether the

( 7309 )

DIGEST OF CASES.

( 7310 )

MITATION ACT (XV OF 1877)— conid.

Schedule ll~contd.
Art. 139— contd.

T|S paid rent for the cultivated lands to the patni-
d: ; (ii) whether the cultivated or uncultivated
L' Is form part of the patni estate ; (iii) whether the
j5 twals were in possession of the uncultivated
li is from 1839, or for a period exceeding twelve
y rs before the commencement of the suit ; (iv)
w thor they paid rent for the same to the patnidar.

T TSOX V. GOVERXMENT

B. L. R. Sup. Vol. 182 : 3 W. R. 73

_ Suit for land —

6 of action — Non-pnyment of rent. In a suit

t( stablish a right to land, the cause of action

■ - when the defendant sets up an adverse hold-

' 111- mere non-payment of rent does not con-

in adverse holding ; but if a tenant openly

..,. .Ill adverse title, and holds adversely, limita-

lii runs. Hukonath Roy v. Jogendttr Chuit-

D Roy . 6 W. R. 218

, Landlord and

tt\nt — Adverse title set up by tenant. Where a
lat lord sued, after the lapse of more than twelve
yflsfrom the date of his knowledge that a tenant
wij setting up a mokurari title, for a declaration
thi the alleged mokurari title was invalid i^Held,
th| the suit ^^as barred by lapse of time. Nazi-
MiiiN HossEiN V. Lloyd . 6 B. L. R. Ap. 130
imooddeen Hossein v. Lloyd

15 W. R. 232

- - Landlord and

iemt—Suit for possession. About twenty-five
yeM before suit R, being possessed of a house
all; -0x1 K to occupy it without rent, on condition
thi A' would keep it in repair and restore it to R on
df'ind. Nine years afterwards, and without any
deimd having been made by E, K died, and bis
hej continued to occupy the house on the same
tei.s as K had done. In a suit brought by R
agUst the heirs of K to recover possession of the
hoje : — Held, that the suit Avas barred, being gov-
Pnl by the twelve years' period of limitation.
R^ HABHAi V. Shama . 4 Bom. A. C. 155

' - Tenant on suffer-

•' Although the EngHsh rule of law as to the

f the possession of a tenant for a term of

ii<) holds over, has been adopted in British

'1 I. tne rule of limitation prescribed by 3 & 4

W[ IV, c. 27, by which time begins to run against

'h irilord from the date of his right of entry, has

11 adopted in the Indian Limitation Act,

a tenant for years holds over in British

line does not begin to run against the land-

until the tenancy on sufferance has been

mined. Adimulam v. Pir Ravutuan

I. L. R. 8 Mad. 424

LIMITATION ACT (XV OF 1877)-co».,^.
Schedule II- contd.

Art. 139— conW.

Landlord and

i — Lease — Tenant overholding on expiration of
-Nature of holding— Tenant by sufferance —
■se possessio7i. Sewble : Under Art." 139, Sch.
the Limitation Act, time begins to run against

a landlord when the period of a fixed lease expires,
when there is no evidence from which a fre.^h tenan-
cy can be inferred, and not at some ir.d.lerminate
date after that period. AVhere a tenant liolds over
after the expiration of his lea.se without further
j agreement, .such holding over, though by English
I law styled a tenancy by sufferance^ is wrongful.
; Slight evidence, however, will suffice to change his
I position into that of a tenant-at-will. K.avtiie-
I PPA Raddi v. Sheshappa I. L. R. 22 Bom. 893

I 9- and Art. 144:— Landlord and

I tenant — Rent-note — Expiration of the term— Tenant

holding over—Tenancy at sufferance— Want of privity

between landlord and tenant— Suit to recover posses-

I sion. A tenant holding over after the expiration of

j the term mentioned in his rent-note is a tenant by

I sufferance and there is no such relationship between

j the landlord and such tenant as is contemplated by

Art. 139, Sch. II of the Limitation Act. A tenant

by sufferanceisonlyinby the laches of the owner,

so that there is no privity between them. Caxdy,

' J- — The possession of a tenant holding over is

wrongful, and if there is no evidence from which a

fresh tenancy can be inferred in the strict

sense of that term time begins to run against the

landlord when the period of the fixed lease expires.

Chandri v. Daji Bhau . I. L. R. 24 Bom. 504

10. Landlord and ten~

ant — Denial by tenant of landlord's title — Option on
part of landlord to deiermine tenancy — Period of
limitation as from determination of tenancy by land-
lord. The defendants in a suit for ejectment occu-
pied land of which their { redecessor in title had ac-
quired possession under a deed which had been exe-
cuted in 1836, and which created a tenancy
from year to year in favour of that predecessor in
title. That lease had been executed by the leading
mirasidars of the village. In 1871, defendants
had, to the knowledge of plaintiff, set up a right of
permanent occupancy in the lands in question,
thereby repudiating their landlord's title. In
1894, plaintiff gave defendants notice to give up
possession of the lands, but until that time had
not evinced any intention to determine the lease.
In 1895 plaintiff, on behalf of himself and the other
villagers, brought this suit for ejectment. On its
being contended that the suit was barred by limita-
tion, inasmuch as it was brought more than twelve
years after the repudiation of tlie tenancy by
defendants : — Held, that the suit was not barred by
limitation. A tenant repudiating the title under
which he entered becomes liable to immediate evic-
tion at the option of the landlord ; but until the
landlord indicates that he intends to exercise his
option, the tenancy sub.sists. This principle ap-
plies to tenancies from year to year. SRiyiVASA
Ayyar v. Muthitsami Pillai (1900)

L Ii. B. 24 Mad. 246

( 7311 )

DIGEST OF CASES.

( 7312 )

LIMITATION ACT (XV OP 1817)— contd.
Schedule II — contd.

Art. 139— contd.

11.

Malabar Law —

Knikanom lease for indefinite period — Customary
law as to duration of lease. By the customary law
of Malabar, a tenant under a kanom or kuikanom
lease is entitled not to be redeemed or ejected until
the expiration of twelve years. But where no time
is fixed for the duration of the lease it does not,
under the customary law, determine on the expira-
tion of twelve years from its date. A kuikanom
lease was granted in 1873, no time being fixed for
its determination. In 1899, a suit was brought to
recover the land, on payment of the value of im-
provements, when the defence of limitation was set
up. It was contended that the kuikanom lease
determined, by the customary law of Malabar,
twelve years from its date, namely in 1885, and that
as the suit had not been instituted within twelve
years of that date, it was barred under Art. 139 of
Sch. II to the Limitation Act : — Held, that the suit
was not barred. Kelapfan v. Madhavi (1901)

I. L. K. 25 Mad. 452

12.

Landlord and

tenant — Adverse possession — Lease for a term of '

years — Tenant holding over after expiration of term — |

Tenant by sufferance. Where a tenant holds over j

after the expiry of the lease : — Held, that time |

begins to run against the landlord on the expiry of |

the term of the lease under Article 139, hch. i
II, Limitaton Act. Adimidam, v. Peir Revuthan,

I. L. E. 8 Mad. 424, dissented from ; KantJieppa v. |

Sche,shappa, I. L. R. 22 Bom. 893, Chandri v. Daji J
Bhau, I. L. R. 24 Bom. 504 ; Madan Mohan Goshain

V. Kumar Rameshar Malia, 7 C. L. J. 615, and j

Khunni Lai v. Madan Mohan, 6 All. L. J. R. 239, 1

followed. Pusa Mal v. Makdum Bakhsh (1909) !

I. L. K. 31 All. 514 ,

Arts. 139, 14:4:— Landlord \

and tenant — Transfer of Property Act (IV of 1882),
s. llf) — Representative of a tenant by sufferance is a
trespasser and cannot, without his consent, be con-
verted by the lessor into a yearly or monthly tenant —
Suit for possession against such representative gov-
erned by Art. 144, and not Art. 139 of Sch. II of the
Limitation Act — Civil Procedure Code, ss. 281, 283 —
Order passed under s. 281 is not binding on judg-
ment-debtor under s. 283, unless he is a party to the '
proceedings, in which the order was passed. A tenant |
holding over after the expiry of his term becomes I
a tenant on suflEerance and the landlord's assent {
alone will suffice to convert such a tenancy into a {
tenancy from year to year or from month to month j
according to the nature of the original case. The [
provisions of s. 1 16 of the Transfer of Property Act i
indicate the rule which is prima facie apphcable j
in cases not coming under the Act. Sayaji bin \
Habaji Bhadvalkar v. Umaji bin Sadofi Ravut,
3 Bom. H. C. {A pp. C. J.) 27, referred to. The |
representatives of a tenant on sufferance, are how- |
ever mere trespassers, and the lessor cannot by his !

LIMITATION ACT (XV OF 1877)-con(

Schedule 11— contd.
Art. 139— concld.

assent alone, convert such representatives
tenants without their concurrence. English
American cases on the point referred to and coi .
dered. In a suit by a lessor to recover possess i
from a tenant for a term of years, time begins)
run under Art. 139 of the Limitation Act from 5
expiry of the term, when the tenancy is determiil
within the meaning of the article. Adimulaml
Pir Ravuthan, I.L.R.8 Mad. 424, not follow'.
Sheshamma Shettati v. Chicknya Hegade, I. L. R i
Mad. 507, approved. Art. 139 deals only with >
case of persons who have been tenants and v
tenancy has determined. The representative -
tenant on sufferance, who enter into possession ,
his death, are not tenants within the meaning:
Art. 139 and a suit for possession against them \\
fall under Art. 144. An order made on a clai
under s. 281 of the Code of Civil Procedure is v.
conclusive against or in favour of the judgmep
debtor under s. 283 of the Code, unless the ju.j-
ment-debtor was a party to the proceedings .
which the order was passed. .lagan Nath v. Gane
I. L. R. IS All. 413, approved and followed. Vai
palli Narasimh.4ji v. Deoxamaraju Seetha'ra>
MURTHY (1907) . I. L. E. 31 Mad. 1

Art. 140 (1871, art. 141)—

See Hindu Law — Alienation by Widc
13 C. W. N. 9

Cause of actior-

Suit by reversioner against his ancestor's lessee, i
reversioner's cause of action against his ancesto«
lessee does not accrue until the expiration of t
lease unless the reversioner is evicted or depriv
of his rent, or rent is received adversely to him l\\
stranger from the lessee. Hueonath Roy
Indoo Bhoosun Deb Roy . 8 W. K. L

2. Claim to shore

immoveable property iinder will. The right to ])
perty left by will (assuming that the testator h
power to dispose of it) falls into possession.
Hindu law, immediately upon the death of the t
tator ; and therefore a claim, making title to sha
in immoveable property under a will, is barred
time, unless brought within twelve years from t
date of the testator's death under Art. 140 of >
XV of 1877, 8ch. II. Mylapore Iyasawa;
Vyapoory Moodliar v. Yeo Kay

I. Ij. R. 14 Calc. 8
L. E. 14 L A. 1'

3. and Arts. 141 and 118- ^

by reversioner for possession by setting aside ado
tion. A, a Hindu governed by the Mitaksha
School of Law, died on the 12th May 1867, lean
him surviving a widow B and a brother R, who w
admittedly the next reversioner. In July 1867
purported to adopt a son D to J, and subsequent
in September 1867 obtained a certificate under A'
XL of 1858. In 1872 B obtained a loan from tb

( 7313 )

DIGEST OF CASES.

{ '314 )

L: citation act C XV of l8n)—contd.
Schedule II — cyntd.

Art. I4i0—contd.

)k tiff M of R9,000, and to secure its repayment

•x.|ited a mortgage of seven mouzahs in favour of

1/ fniardian of D. The money was advanced and

IK nage executed at the instigation of i? and with

lis uisent, and upon his representation that D was

hi Illy adopted son of A, and it was admitted that

IK \oney was specifically advanced for, as well as

ip fd towards, the payment of decrees obtained

1^1 st A in his lifetime and against his estate after

lis.'ath. B died in 1878. On the 14th August

a M instituted a suit against D upon his mort-

;af. .md in that suit he made S a party defend -

lOM being the purchaser of the mortgagor's in-

eri, in one of the mouzahs included in his mort-

!ar, On the 25th June 1882, M obtained a decree

< iiiL' that he was entitled to recover the amount

-lie of the mortgaged mouzahs. In the

;u's taken in execution of that decree M

I |>|M)sed by L, who was afterwards held to be a

K-ruidar for \S', Mho claimed that he had, on the

■'h ovember 1880, purchased five out of the seven

" ihs, at a sale in execution of certain decrees

■t H. On the 20th February 1884 L's claim

iillowed and on the 11th August 1884 M

'!0,ht this suit against i, S, B, and D, and the

lee .'-holders in the suits against B, for a declara-

'Mif his right to follow the mortgaged pro-

the hands of S. It was found as a fact,

iiloption of D was invalid ; that the ad-

.)/ to B was justified by legal necessity;

L was the benamidar of S. It also ap-

it M had himself become the purchaser of

■ mortgaged mouzahs. The lower Court

I decree declaring him to be entitled to

•le full amount of the mortgage-money

live mouzahs in the hands of S. L and S.

.. and .1/ filed a cross appeal, alleging the

to be valid and binding on S. It was

I that D had acquired an absolute title by

II twelve years' adverse possession from
■f his adoption in 1867 before the purchase

1 ^80 :—Ufld. that, as B died within twelve
'he alleged adoption, although under Art.
II, Act XV of 1877 (which came into force
M- adoption could become perfected by
•ime), a suit for a declaration that an ad-
s invalid should be brought within six
in the date when the adoption becomes
' the plaintifT, still having regard to the
> "f Arts. 140 and 141, the next rever-
s not thereby prevented from suing to
-session witliin twelve years from the date
'low's death, or when the estate fell into
:i. and therefore that S was not barred by
a from disputing /)'s title. Lal.a. P.^rbhu
^-^i-l Mylne . . I. L. B. 14 Calc. 401

4.1. Limitation Acts

iX\\ll877), Sch. II, Art. Ji - and (IX of 1S71),
^'cA. !', Art. 129— Suit by devisees to recover posses-
'•on / property devised by will — Prayer to declare

LIMITATION" ACT (XV OF 1877)— con/d.
Schedule 11— contd.

Art. 140— cowc'd.

alleged adoption invalid. A suit by a devisee to
recover possession of immoveable property and to
have an alleged adoption (on the strength of which
the defendant is in posses.sion) .set aside, not being
one merely to obtain a declaration, is governed by
Art. 140 of the Limitation Act (XV of 1877). To
such a suit Art. 118 does not apply, as the prayer
for declaration is subservient or auxhary only to
granting of the substantial relief. F.-\xnv.\mm.v v.
Manjaya Hebbar . I. L. R. 21 Bom. 159

Overruled by Shrinivas Mukak r. Hanmant
Chavdo Despande . I. Ij. R 24 Bom. 260
in which it was held that Art. 118 would apply to
such a suit

Art. 141-

Sce Hndtj L.^w — Widow — Power op

Widow — Power of Disposition or

Alienation I L. R 30 Calc. 990

See Limitation I. L. R. 32 Calc. 165

1. Suit to set aside

alienation by w'idow— Cause of action. A suit to set
aside alienations of ancestral property made by a
childless Hindu widow during her life-tenancy may
be brought at any time within twelve years from
the death of the widow. Tii.ucK Roy v. Phool-

MAN Roy 7 W. R. 450

Suntokhee Thakoor v. Belassee Koonwur

low. B. 276
GoPAL MuLLicK V. Onoop Chunder Roy

11 W. R. 183
Greedh.\ree Singh v. Indro Kooer

17 W. R. 237

Chunder Kanth Roy v. Peary Moiitn Roy

1 Ind. Jur O. S. 21

.s.c. Peary Mohun Roy v. Chcndee Kantha

Roy . . Marsh. 33 : 1 Hay 69

Ancnd Mohcn Roy r. CinNDEu Monke Dasee

Marsh. 547 : 2 Hay 648

2. Bfr(rf!ioiurs —

Cause of action. B purchased a patni niehal and
devised it to his son G. 0 died after B childless
and intestate, and leaving a widow, .S^.who also died,
neither of the three having ever taken possession of
the mehal. Plaintiff, as G's nephew, sued to re-
cover possession of the mehal '.—Held, that his cause
of action did hot arise until the death of S. R.VM

DOOLLUB S.\NDYAL V. RaM NaKAN MoITRO

7 W. R 455

3, C«H.sf of action —

Hindu law — Alienation by widow. A, a Hindu
widow, while in possession of the property left by
her husband, sold a portion thereof. After her
death, her daughter B succeeded to the property
but took no steps to set aside the alienation made
by her mother. After her (B's) death, her sons
succeeded to the property, and instituted the pre-

( 7315 )

DIGEST OF CASES.

{ 7316 )

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

Art 141 — contd.

sent suit, after a lapse of thirty-six years from the
death of A, but within twelve years from the death
of B, to obtain possession of the property sold by
A. Held (MiTTER, J., dissenting), that the suit was
barred. Tlie cause of action arose when B suc-
ceeded to the property. Rajkishor Dftt Roy v.
GiRiSH Chandra Roy Chowdhry

4 B. L. R. A. C. 136

4. Reversioners —

Cause of action — Suit to set aside alienaiion. In a
suit against a widow for acts of waste and alienation
alleged to have taken place during the lives of the
plaintiffs" mothers, who were then the next heirs to
the property : — Held, that, as the mothers allowed
more tlian twelve years to elapse, their cause of
action expired, and that it did not revive in favour
of the plaintiffs, who had since been born and had
now arrived at majority. Held, also, that, if by the
death of the widow a new cause of action accrued
to the paintitis as reversioners entitled to the pro-
perty, they might sue again but they could not
succeed in the present suit. Pershad Stngh v.
Chedee Lall . . . . 15 W. R. 1

5. Limitation Act

(XIV of 1859), s. 1, cl. 12 — Suit by reversioner on
expiry of widoio's and daughter'' s estate. Plaintiff
sued in 1887 to recover property as part of the
estate of his maternal grandfather, who died about
1845, leaving (i) a widow, who inherited the pro-
perty and died in '1846; (ii) his daughter by her,
who took the property on her mother's death and
alienated it to the defendants about 1850 and died
before suit; and (ii) the plaintiff's mother, who
was his daughter by another wife. The plaintiff's
mother made no claim on the property and died in
1883: — Held, that the suit was not barred by
limitation. Sambasiva v. Ragava

I. L. R. 13 Mad. 512

6. —

Cause of action-

Adverse possession — Suit for property inherited from
father. The plaintiff sought to recover certain pro-
perty which she inherited from her father, and
which had been taken possession of by the defend-
ant during the lifetime of plaintiff's mother. The
lower Court dismissed the suit on the ground that
it was barred by the law of 1 mi tat on, plaintiff hav-
ing failed t:) show that her mother was in possession
at any time within twelve years before the suit : —
Held, on special appeal, that the suit was not
barred. Until the death of her mother, plaintiff's
alleged cause of action did not arise, and her right
not being derived from or through her mother, the
period of limitation could not be considered as
having been running against her from the com- j
menoement of the adverse possession in her
mother's lifetime. Atchamma v. Subba Rayudu I
5 Mad. 428 |

7- _ Estate held joint- !

ly by iv;o widoics — Cause of action — Reversioners. I

lilMITATIGM" ACT (XV OF 1877)-

Schedule H~contd.
Art, 141— ronW.

Where the estate of a deceased Hindu held jctl
by his two widows survives, on the death of or o
them, to the surv.ving widow alone, no cau o
action can accrue to the reversioners until the c itl
of the survivors even in respect of a moiety o %
property. Gobind Chtjnder Mojoomdar i;. tl
MEER Khan . . . 23 "W, R,2{

8. Beversio:--

Cause of action — Adverse possesswn. Wre
however, the estate is held by some one advtah
to the widow, so as to give her a cause of acti ■ U
recover it, a suit to recover it brought by her o he
reversioners is baiTed after twelve years of cl
adverse holding. Where a cause of action iti
regard to the husband's estate has once accied
to a Hindu ^vidow, who nevertheless fails to asrt
rights, no new cause of action arises to the irs
after her death. Tarini Charan Gangiti v.
Watson

3 B. Ii. R. A. C. 437 : 12 W. R. 13
Rajkunwar v. Inderjit Kunwar

5 B. L. R. 585 : 13 W. E52

9. Female h-—

Adverse possession — Suit bi/ reversioner. Adrse
possession against a Hindu female heir, \ich
would bar her right of suit if she Mere alive, rill
equally bar that of the reversioner. Nobin Cr>'-

DER ChTTCKERBUTTY V. GURTJPERSAD DOSS

B. L. R. Sup. Vol. m

s.c. Nobin Chtjxder Chuckerbutty v. I tk
Chunder Chuckerbutty . 9 W. R. i)6
overruling Ameer Ali v. Mohendro Nath Isb.
Behary Koomaeee v. Mohendro Nath Isb.

SUHODARA BiBEE V. MOHEXDRO NaTH BoSE

2 W. E.i71

Jeonath Bhuggut v. Roopa Koonwar

2 W. R. 273 )te

and Haradhun Naug v. Issub Chunder Bosi

6 w. R. jaa

and followed in Ram Kanai Roy Chowdi »v
Trilochan Chuckerbutty

1 B. L. R. S. Kia

Parbutty Mofleessa v. Rajoo

W. R, 18643ft

Ram Dyal Gossain v. Kattyanee Debu
8 W,

Brinda Da bee Chowdhrain v. Pearee ^
Chowdhry . . . . 9 W. B. ^
Rash Beharee Lall v. Burmessur Nautj'
10 W. E30

Chunder Nath Sein v. Anundomoyee Do^fi
U W. B.9»

GuNESH DuTT V. Lall Murtee Koobr

17 W. Ill

MoHiMA Chunder Roy Chowdhuri "■ ^jg
Nath Roy Chowdhuri . 2 C. W. W. »

( 7:U7 )

DIGEST OF CASES.

( 7318 )

:MITATI0N act (XV of ISlD-comd.
Schedule 11— confd.

Art. 141—contd.

10.

Reversioner —

Hindu -widow, who

itti« of action. Where

ses by inheritance from her husband, is dispos-

|.sed, the period of Umitation as against the rever-
n&ry heir claiming the succession after the

iiow's death is, in tko absence of fraud, to be
koned, not from the time of the widow's death,

It from the time from which it would have run
linst the widow had she lived and sued to re-

Irer the inheritance, i?, holding ancestral estates
■bengal jointly with his brothers as an undivided
ndu family, died, leaving a widow. S, and three
married daughters, B, S M, and N. On her
sband's deatli, S continued to reside with his
)thers, and was supported out of the income of

,* joint estate. During the lifetime of S her
lughters married, and B became a M'idow without
'fing had a child. After S's death, and during
1' Ufetime of S M, N also became a childless
low. .S M died after her mother, leaving a

n, R K. R K, on attaining majority, sued to

iover with mesne profits a 4-anna share in the
3estral estates to which he claimed to be entitled
his mother's death as heir of R, and from which
1 alleged that he had been dispossessed by the
•resentatives of R's brothers, whom he made
'endants in the suit, joining B and N with them
ij co-defendants. Some time after the institution

• the suit, a petition was filed, purporting to pro-
i d from B and N, by which they admitted that
i plaintiff was the heir of R, and that they had

defence to offer -.—Held, that limitation could
. t be taken to have run against the plaintiff's
\ im during the lifetime of S, who, in the absence
< proof that .she had received only maintenance,
: di.<!tinguished from participation in the profits
•'the estate, must be presumed to have had posses-
iin of the share in the estate which she inherited
i| her husband's widow. Qua-re : Whether, if N

• 1 been considered as having relinquished her
! hts, she would not, at the time of the relinquish-
int, have been barred by limitation. Amkito-
1 . BosE V. Rajoneekant Mitter

15 B. L. R. 10 : 23 W. B. 214
L. B. 2 I. A. 113

Reversioner —

I idu widow. Where after the death of a Hindu
' 0 had been separate in estate from his brothers,
' I during the lifetime of his widow, his brother's
f 3 obtained mutation of their names on tho
( lector's rent-roll, and held possession of the
* ate in right of inheritance for more than twelve
lirs:—Held, that under the Mitakshaia law, the
jisesaion by the nephews being adverse to the
^low, the claim of the reversioner on her death
^ i barred. Gopal Sixoh v. Kanhva Lall
5 CKBZADA . 2 B. L R. Ap. 14 : 11 W. R. 9

2. Reversioner —

i jrfu toidow — Cause of action — Adverse posses-
«'i. A Hindu died leaving two daughters, who

LIMITATION ACT (XV OF 1611)— contd.

Schedule 11— contl.
Art. 141— con<^.

succeeded to their father's property. One sold her
half share of the property and died in 1835 ; the
other died in 1859, and her son instituted the pre-
sent suit in 1807 for recovery of the haK share
which her sister had sold. The defence set up was
that the suit was barred by lapse of time, as the
plaintiff's cause of action arose in 18:^5, or more
than twelve years before the institution of the
suit: — Held (following a dictum in the Full Bench
ruling in Nobiii Chnnder Chuckerhuttii v. Guru Persad
Doss, B. L. R. S7tp. Vol. Km), that the words
" cause of action " in cl. 12, s. 1, refer, not to the
new causes of action which accrues to the rever-
sioner, but to the " cause of action " which accrued
to the tenant-for-hfe ; and that the suit, having
been brought after a lapse of more than twelve
years after the death of the tenant-for-life, was
barred. Ganga Charax Rov Chowdry v. Jagab-

^•ATH DUTT

3 B. L R. A. C. 208 : 12 W. R. 97

13.

Suit by rever-

sionary heirs — Possession by adopted son. A Hindu
widow, in 1824, assumed to adopt a son to her
husband, and such son, and after him the defend-
ant, his heir, was put in possession of the proper-
ties in suit. The widow died in 1861. The suit
was instituted in 1866 to recover the property and
to declare the adoption illegal : — Held, that such
possession during the life of the widow could not
be said to be adverse as against the widow. The
cause of action to the reversionary heirs arose at
the time of the death of the widow, and was conse-
quently not barred by limitation. Sbinath
Gangopadhya v. Mahesh Chandra Roy

4 B. li. R. F. B. 3 : 12 W. R, F. B. 14

14 ______ Relinquishment

by Hindu widow — Cause of action by I.eirs. Where
a widow reUnquishcd her right to her husband's
property in favour of his then reversionary heirs
who were accordingly put into possession, and other
persons subsequently claimed the property as the
husband's heirs, the"^ cause of action of such other
persons was held to have accrued from the time
when the then reversionary heirs came into posses-
sion of the property. Kalee Coomau Nag v.
Kashee Cuunder Nag . . 6 "W. R. 180

15. _^ Right to posses-
sion of property on denth of Hindu widow — Rever-
sioner. The right of a Hindu to tho possession of
immoveable propertv on the d>ath of a Hindu
widow, to which .\rt.'l42, Sch. II. Act IX of 1871,
refers, must be one in es-^c at the time of the death
of the widow. The determination therefore of such
right during her lifetime extinguishes also the right
of reversioner on her death. Saroda Sooxdcry

DOSSEE IJ. DOYAMOYEE DOSSEE

L li. B. 5 Calc. 938

^„. — Will— Gift of

estate subject to vested interest of undotc — Suit in

7319 )

DIGEST OF CASES.

( 7320 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 141- contd.

widow's lifetime for declaration of right and account.
V 8,0, Hindu, died in 1858, leaving a will of which
he appointed G and S executors. After payment
of debts, legacies, etc., the executors were directed
to manage the residue of the estate, and not to sell
it during the lifetime of L, the junior wife of V S,
to whom a monthly payment for life was to be
made by them. After the death of L, the executors
were directed to divide the property that remained
in equal .shares between them, and to continue to
enjoy the same in equal shares. L survived both
G and S, who died in 1875 and 1879 respectively.
In a suit brought in 1879 by the divided nephew of
F S against L and the representatives of G and S
to have his right to the estate of the testator upon
the death of L declared and for an account, — Per
KiNDERSLEY, J. — Semble : The suit was barred by
limitation, as the widows of V S had not been in
possession of the estate as Hindu widows, but had
enjoyed^ merely their allowance under the will.

KOLLA SUBRAMANIAM ChETTI V. ThELLANA VAKTJLU

SuBRAMANiAM Chetti . I. Ij. E. 4 Mad. 124

■•■'• Suit by rever-
sioners after death of Hindu, widow. In 1846, a
widow, under an ikrarnama, made over to her
brother-in-law certain properties formerly belong-
ing to the estate of one L, her late husband. The
widow died in 1878. In March 1S79 a suit was
brought by the daughters of L to recover the pro-
perties formerly belonging to their father from the
hands of certain vendees : — Held, that the suit by
the reversioners was not barred under Art. 141 of
Act XV of 1877, there having been no possession
adverse to the widow, by dispossession, for more
than twelve years, the widow's cause of action
having ceased when she entered into the ikrar-
nama in 1S46, and gave up her right to the pro-
perty ; nor, under s.^ 2, of Act XV of 1877, could
the right of the plaintiffs be said to be barred by
any Act repealed thereby, inasmuch as Art. 142 of
Act IX of 1871 prescribes the same period of limit-
ation as is prescribed in Art. 141 of Act XV of 1877 :
and that although, under Act XIV of 1859, repealed
by Act IX of 1871, it was decided in Nohin
Chunder Chuckerbutty v. Guru Persad Doss, B. L.
P. Sup. Vol. 700S, that adverse possession Vi-hich
bars a widow also bars the reversionary heirs, yet
the exception laid down in that case would 'be
applicable, and would save limitation. Pubsut
KoER V. Palct Roy . I. L. R. 8 Calc. 442

,18 and Art. 140— Act IX of 1S71,

och. II, Art. 140 — Suit by reversiorter for possession.
Under Art. 141 of Sch. II, Act XV of 1877, a rever-
sioner who succeeds to immoveable property has
twelve years to brins his suit for possession from
the time when his estate falls into possession.
Srinath Kur v. Peosunno Kumar Ghose

I. L. R. 9 Calc. 934 : 13 C. L. R. 372
Alienation by
oner. AVhere there

LIMITATION ACT (XV OP 1877)-co«<i.

Schedule 11— contd.
Art. 141— contd.

19.

HiTidu widow— Suit by reversii

had beon a suit and compromise by a Hindu widow
which were held to be tantamount to an alienatioi
by her: HeM, that there had been no advcrs<
possession during her life, and that the period o
limitation in a suit by the reversioners must b{
calculated from her death. Sheo Narain Singe
V. Khtjrgo Koerry. Sheo Narain Singh v
BiSHEN Prosad Singh . 10 C. L. R. SSI

f.^ : • Suit by daugUt

emitted to -possession of immoveable property c
death of Hindu widow. The daughter of a sept
rated Hindu, who was entitled to succeed to he:'
father's immoveable property upon his widow'i'
death, instituted, after the widow's death, a sui''
for possession of such property against certair
persons who, upon the Hindu's death, had obtainec
possession and held it adversely to the widow :-i
Held, by the Full Bench, that Art. 141 of Sch. Il"o:
the Limitation Act (XV of 1877) was applicable
and that limitation ran from the date of the widow'''
death. Srinath Kur v. Prosvnno Kumar Ghose
I. L. P. 9 Calc. 93 J, followed. Ram Kali v. Kedm
Nath . . I. L. R. 14 All.,15(

21. ■ Limitation Act (1,.

of lS71\,Art. 142 — Dismissal of Hindu daughter' ^
claim as heiress of a share, as barred by time, effec
of, in regard to right of reversioner after her— Re
judicata — Adverse possession. In a suit in whiol
the parties were descendants of a common ancestor,
who had daughters only, one of the latter havinji
been the mother of the first defendant, who was iij
possession of the ancestral estate, the plaintiff, soi|
of the last surviving daughter, claimed, on hej
death possession of his share by inheritance, anc
also of a share acquired by him by gift from an
other of the defendants, a son of another dauglitf
of the common ancestor. The defence was that ;
suit, brought by the plaintiffs mother, in her life
time, against the same defendant, for her sharej
had been dismissed by a final judgment on th'
ground of her claim having been barred by limit
ation : — Held, that the estate, which would hav
devolved on the plaintiff's mother as survivor ■
her sisters, was similar to the inheritance of
widow, the same result following the dismissal -
the daughter's suit that ensued in regard to tii
decree adverse to the widow in Katama Natchia
V. Paja of Shivaganga, 9 Moo. I. A. ■'i39, whcr
a decree, duly obtained against the widow, boiiii'
the reversioner. The previous decree dismissin
the daughter's suit as barred was binding on he
son. His claim therefore failed, not only as to hi
share by inheritance, but, for similar reasons, a
to the share acquired by him from the defendan
donor. Art. 141 in the Schedule to Act XV of 187
fixing the date of the female heir's decease as th
starting point for limitation, did not alter the exist
ing law as to the effect of a decree adverse to th
predecessor as representing the estate, nor did i
give a new starting point to the successor, nor di'

( 7321 )

DIGEST OF CASES.

( 7322 )

L IITATION ACT (XV OF 1877)— contd.

Schedule II — conkl.

_ - Art. 141 — conld.

Aij 142 in the Schedule to Act IX of 1871. Hari
N.ii Chatterjee v. Motiutrmohan (Ioswami

I. L. R. 21 Cale. 8
L. R. 20 I. A. 183

»' TRIBmJWAN SUNDAR KtJAR V. SrI NaRAIN

,Si;|h . . . I. L. R. 20 All. 341

n Premmoyi Ciiowdkani v. Preonatii Dhur

I. L. R. 23 Cale. 636

Possession of

iridow — Suit hy reversionary heir. A Hindu

' :. tor died, leaving a widow, and also a son

' lid leaving a widow, a few years after his

>> hose widow, either durinrr the son's life-

iii his death, took possession of the pro-

tL bjr the father, and remained in

!i till she died, having held it for

•venteen years. This she did notwith-

_ the claim of the son's widow, whose suit

i^r for the property was dismissed, on the

t limitation, in 1875. Before her death,

■isferrcd part of the property by gift, and

to have transferred another part" by will.

' stion as to the capacity in which she had

il 1 and retained possession, it was found that

hdiad done so absolutely and without any

'SS|;ion of a right, which she had not, to a

nrv s estate. Suit by the reversionary heirs,

'/hii the son's widow joined, was held barred by

ni ition, on the'ground that the possession taken

been adverse to them. Not only was any

, through the deceased son, barred, but the

i of the reversionary heirs also, the posses-

>y the father's widow not having been shown

• that of the limited interest of a widow.

HAN Kunwar v. Manorath Ram. Lachhak

VAB V. Anant Singh

I. L. R. 22 Cale. 445
li. R. 22 I. A. 25

Rcversioner-

se possession — Hindu laiv — Widow, suit to set
dienatton by. R died, leaving him surviving
n G and his widow J. On i?'s death, G suc-
1 to jR's property and died subsequently,
g him surviving his widoAv S, who lived with
other. The property remained in the posses-
■f J, the widow of B. In 1862 J sold the
I'ty to the defendants, who entered into
sion forthwith. In 1874, J died, and sub-
■tly S died. In 1886 the plaintiff, as revcr-
y heir, sued to set aside the alienation made
in 1802 to the defendants -.—Held, that the
'ff s suit was barred. The adverse possession
nd her aUenees for more than twelve years
; !^''s life was a bar, not only to S, but also
claim of the reversionary heirs on her death,
t'- Bhikaji. Ibrahim v. Bhikaji

I. li. R. 14 Bom. 317
Adverse posses-

Alinialion by Hindu widaw.y A title by ad

LIMITATION ACT :XV OF 1877 —cvtd.
Schedule U—cuntd.

Art. 141—contd.

verse possession for more than twelve years accrues
even during the lifetime of a Hindu widow, but
if possession arises directly from any invalid alien-
ation on her part, special pio vision 'is made for the
right to sue on the parts of the reversioners within
twelve years from her death and the accrual of
their title. Gya Persad alias Lal Persad v. Heet
Naraix . . , I. L. R. 9 Cale. 93

2^- Reversioner, .^tdt

by— Adverse possession arjainst Hindu icidoiv. In a
suit instituted on the 26th August 1879 by the
reversioner on the death of a widow, Avho died on
the 28th August 1867, to recover certain immove-
able property, it appeared that the defendant had
forcibly dispossessed the widow of the property in
1864 and held it ever since -.—Held, that, under
Art. 141 of Sch. II of Act XV of 1877, the rever-
sioner was entitled to a fresh period of limitation
from the death of the widow, although limitation
had begun to run against her. Semble : The law
as laid down by the Full Bench in Nobin Chunder
Chuckerbutty v. Issur Chunder Chuckerbutty, 9
W. R. 505, has been intentionally modified by' the
Legislature by Art. 141 of Sch. 11 of the Limita-
tion Act of 1877. Dwarka Nath Gupta v. Ko^ror.-
MONi Dasi . . . 12 C. L. R. 548

and Art. 140 — Adverse

possession — Hindu, mother — Reversioner. Semble :
That in Hindu law, where a mother succeeds to
property as heir of her son, and her right thereto
becomes barred by adverse possession, the next
heirs of her son on her death will have twelve years
therefrom in which to sue for possession of the pro-
perty. KoKiLMONi Dassia V. Maxick Chaxdra
Joaddar . . . I. li. R 11 Cale. 791

27. Suit by prrscn

claiming immoveable property on death of Hindu cr
Mahomedan female. N, a Mahomedan, died in
1849 leaving immoveable propert}' which was in-
herited by his mother B, his brother E, and his
sister A. It was found that A was never in
possession of the share inherited by her, and that
she died in 1878 : — Held, in a suit against E and his
son, brought in 1884 by A's heirs for possession of
that share, that Art. 141 of the Limitation Act did
not apply, and that the suit as to that .share was
barred. Per ^^'lLSo^^ ./.—Art. 141 of Sch. II of
Act XV of 1S77 refers to suits by per.sons claiming
on the deatli of a Hindu or Mahomedan female,
under an independent title, in the same way as,
in respect of suits bj' remainder men, reversioners,
and others. Art. 140 docs. It does not apply to the
case of a person suing on tlie very .same cause of
action which accrued to a female, and su'rg by
right of being her heir. A^ am BrirvAX i\ Faizcd-
DiN Ahamed . . I. Ij. R. 12 Cale. 594

28. ; Suit by Maho-

medans for possession of immoveable property hy
right of inheritance to mother. Plaintiffs sued for

( T3f3 I

DIGEST or CASJ

( 73:4

T.mrPPATTOX ACT ^XTjOF ISl

S^iledu.e 11— :---*-i.
Art. 141 — rc^TJ.

their share iu the estate of their deceased father
and mother. The defendants tr^ce the br->th«
and .\ sisrer and a step-mother ot the plaintiffs. As
records the daim of the pliinrlis to their shares in
the estate of their mother, the defendants pleaded
that the same «^s b&rred by limitation, inasmaeh
as their mother died on the ±±nd January 1ST3,
And the snit was not iastitnted till the ±&th of
Jannarv- ]SSol The Conrt belo-w. finding that the
mother" died on the iiod January IST^ held that
Art- 1-il. Soh- II. Limitarlon Act. barred the claim,
and dismissed the sait : — firii, that Ait. 1-11 of the
Limitation Act does not apply to a suit by an
heir-at-law for possesson o£ immoveabie |xopertT
in that character ; bat to a suit by a Hind-J or
Mahomedin who. psior to the deadi of a female,
occupied the positioa of a remainder man. or revier-
^iooer or a devisee, and on the death of the female
sues on the basis of that charterer. Hashxat
BsGAM r. XUrHAK HrSAix

r L B. 10 AIL S43

29. — Swi fe attasM a

JaJanitM* Oat «m oBMni mioptiom i* immUd or

^to^ertv. Art. US ot tJ*e limitation Act

^TjVr T-> saits «*»^'re the relief claimed is porely for a

^^ • - . , -.^.r .--....;,.- ;;" ijiTuSd or

- .5 distiiK-t

^" . - . . s-d the

: oi

■-in.

bat iS ^

141. It is

diseret;

adeclara-

tkwi oi - -~ -

Act that a

person has not sued tor a .-.

:H not be

a bdji- to a sail

: fv>r pos9es>

:y on any

-- : " " '^ :"

;tation pcei<-

.,-,-.

zjie forme-.

T.' , '

-sontrhohad

objected

to Ml Attadi-

^'>V? r^-p?-

*T- i-?.

?c'itko v»f a

drC";X"- A"i ••

vsaHowed,

evasion, for

to set asie t"

^.„. .---.- -f -■-

— :?j-:rn of

the
- -. on

^ rion

s"v..-;.--r -. -. ^.,: ...^ -^ - --- — - - : Art.

IIS. of the Limitation Act ;XY ot iSTTv the sait

K"-~r -."t t^ ■'>r^iT». ^r.v declaration that the

-."" ■ ■ - ■ " -.t for rttx-»very of

;r:y. for which

. - i;A<T>B:» r, Go?AL

I L R. S AZ. S44

and Arts. US. 119—

SO.

i:;«ii»*«» Act {IX of i<r7^. >>-V ii. a-.. i-^>—

LTMITATIOX ACT ^XV OF ISTT)-^-,
Schedule II — ^:.-r4.-i.

Art 1-il— ;;-.-i.

ci3c-piio% v.: s -:■:.:■:-'-■ --_ - .:.s*f*«,

5andJ5:'ii:: : : ,: V-;:::;ri- "ihev w
memb«s .: r^niiiy. K died ie-.^

two sons. .> :-~ B w>as giTer. :n adczM

to ^ T cuc... .-,. . .__^ .-. --xdow and thi>re dasssta
In 1ST* J"# widow O adopted detendar.t Xa^iy
^e died in the v^^r 1SA». I" i«<^ •^"* ■— »-i—
by .^
sent, -

Art. lis. S

ISTTV and . . _

whole claim was tiEie-K

coznbiiwtiion of seTerai :

deprive each claim of its s~^:

scription. Ptr Ttabjl J. —

of the Limitativkn Act 'XV

every sait where the v

adoption is the subest,

whether sutA question -

the first instance <k aziiis iii ii;:-.it,iaKiv| i

defewiant setting up his own adc'paon •? fm

to the piiinti5's~sacces5. (ii^ Art. 149 *i«>: '■

the ocdniary ampJe cause ci a rever-aoaer »"

vaBdrry of the ad.>Ddoa is not the ^r-

p^j^. ., J _^ _ -. _--:_^^

cee-r. ^ :

ant ^

I. L. d. :: 5--i. :-. :

MrsAS r. Haxkaxt Ckavt

r I. ? : :

fov iaM*--~ "' " — - -

Uat — ITicd

trtic>ir- ^ - >5 ■.:-. :>;

widows. C >,trTiTing.

bequeathe ,i . ies and ga-;

able propectiis to d_s ^Idrws f:^- t
rest of his estate and. on the deati
these four properties alscv he -
died in ISTl ; J\" died in ISS-^
the son c^ the reistator's br,
1SS4. la December If^i^- ~
inj to be entitled, as d

Rill. .,...; .... - -, r

that there was an mtestac/

immovaahie pror^rties after

and as to -- - — ^ i : -----;

tie»»*«

s-d t.'Ld

( 7325

DIGEST OF CASES.

( -326 )

IMITATION' ACT (XV OF 1877)-coiUd. | LIMITATION ACT (XV OF 1877)-c«itf.
Schedule 11— c.-.td. | Scheduie II— con^.

_. Art. lil-.viid.

The Article of the Limitation Act t

applicable was An. 141. Under j

. plaintifi had twelve years from the '

. .V wiiich took place in ISSS. As long as I

or A' lived, the plaintiff had no right of '

He co»ild not sue for possession, and he ;

- jht whatever to interfere in the manage-

iisposition of the income of the property.

>. -^^i^AS GoVtSDJI V. VrKDKAV.OvDAS PuKSHO-

«« . I. L. R. 14 Bom. 482

? Advirsc passes- .

•idu uridotc — Bncrsionfr. A", a Hindu,
.S63, leaving two widows T and G, and a
r il, him surviving. In 1ST4, the widows
•-he property left by A" between them and
em J in 1S76 sold her share to one who
J it to the plaintiff. G died in 1SS7, T
lied previously. After the death of the
•vrs, J/, the daughter of A", was heir to the
. but the plaintiff in this suit alleged a t tie
<e possession: — Hiid. that the plaintiff had
-IS against the defendant J/. Under Art.
• Limitation Act (XV of 1S77), the posses-
Fa vendee and of the plaintiff was not
r. .. defendant, J/, who took as A*'* heir
of G, the surviving widow of A", in
Kur T. Prosunno Kumar Ghose,
:-< L jic~ 937, and Cursandas Govindji \.
Jikfa. Purshotam, I. L. P. 14 Bom. 4S2,
Mttkta r. D.vDA

I L. K, 18 jBom.:2ie

Partitioih of latid

■:'r:-:r cj ih: lest viah Oirfur —

■ ■ — Ad>:-r<- }--ss<ssion — Widow's

■ • :'-r — Hirudu laic. The widow
■ a laad-ONvner, who died without

his land between them in 1S09.
.1 her share of the land in 1S70, and
The Nndcw now sued in 1S93 to
■perty from the vendee : — Held, that
-;.d mother on the partition took life
1 their respective shares; that the cause
arose on the death of the mother when the
n of the vendee, became adverse ; that the
- not barred by limitation, and the plaint-
entitled to recover. ParVathi Ammal r.
N'^^ Mtn>Au . I. L E. 20 Mad. 459

Art. 141— <ofkJd.

the plaintiffs were entitled to a decree. # Vexka-

TAKAMAYYA r. VeXKATALAKSHMAMMa

I. L. R. 20 Mad. 493
Suit bii revtr-

1- .Suit by revtr-

'^ " " '' iiatk of ffmoU hdr — Adverse potsts-

: I died in ISSO. leaving him surviving

who died in 1SS6, who was the grand-

• plaintiffs ; and (ii) the son of

- ur who was another plaintiff ;

> i a predeceased son who was

ndant. The plaintiff now sued in 1S93 to

possesaon of his land, of which the defend-

I , ' *'**° ^ possession since this death -.—Held,

"^ the suit was not barred by limitation, and that

sioner for possession — Death of the tridotc—Actntai
of right to sue — I'ttsuccessful appiicaiion in execuiion-
proaedings against tcidow— Civil Procedure Code,
1SS2, s. -283. Under Art. 141, Sch. II of the
Limitation Act (XV of 1S77) a reversioner's right
to sue accrues on the death of the widow, the
fact that the reversioner ha* made an unsuccessful
apphcation for possession in execution-proccedinss
asainst the widow, and has not sued under s. 2S3
of the Civil Procedure Code (Act XIV of 1SS2),
does not debar him from filins a regular suit. T.u
r.LADC L L. E.20 Bom. 801
36. . Suit by rever-
sioner after uridow's death for share, of property —
Accrual of cause of action — Adoption, effect of — Suit
to set aside invalid adoption — Limitation Act. 1S7T,
Art. lis. A claim by a re.versioner to recover his
share of the property of a Hindu who has died,
leaving a widow, accrues from the death of the
widow ; and as to immoveable property. Art. 141
of Act XV of 1S77 allows twelve years w-ithin which
to bring a suit. An adoption taking place in the
meanwhile does not curtail sueh period or impose
upon the reversioner the necessity of filing a suit
to have it declared invalid during the lifetime of
the widow, under pain of losing the inheritance
upon the widow'.s death. Art. flS of Act XV of
1S77 does not operate as to give validity by lapse
of time to an invalid adoption, if no suit is brought
by the reversionary heirs within six years of ita
taking place to obtain a decliratiou that it is in-
iralid. Hakilal Praxlal r. B.u Rewa

I. Ii R 21 Bom 376

37.

Peverioner, -uit

by — Benami deeds xcith intent to defraud creditor —
Limitation Acts (XF of ;<;,-). s. 1, and Sch. II. Art,
91 (IX of 1-71), Sch, II, Art. UJ—femaU heirs,
successive — Adverse po^sc^fion. K executed in
ISiiO four benami documents with intent to defeat
the claim of his employer on account of money
embezzled by hira ; two of the documents were
hebas (deeds of gift) in favour of P, his elder \»-ife,
in rt?spect of a moiety of properties 1, 2, and 3, and
two were koalas (conveyances) in favour of G,
that wife's brother, in respect of the other moiety
of those properties. K remained in possession oi
the properties till his death in ISW. After his
death, the elder \ridow P remained in possession (A
properties 1, 2. and 3, and other properties in the
district of Midnapur, and the younger widow S
remained in posse.^^on of properties in the district
of HughlL In November, 186(.t, P executed a
kobala ui respect of the S annas of the properties
covert d by the hebas in favour of G's son, then a
minor. S died in 186S, and P died in 1S71. A
daughter of K by 5 succeeded them, and that

( 7327 )

DIGEST OF CASES.

( 7328 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule II— co7i.fr/.

LIMITATION ACT (XV OF 1877)-coi'.
Schedule II — contd.

Art, 141—co7itd.

Art. 141- contd.

daughter died in August, 1882. In a suit brought
by a son* of that daughter on the 4th of January
1893, for the recovery, inter alii, of possession of
his share of properties 1, 2, and 3 from G's son, with
mesne profits, and for a declaration that the deeds
executed by K were colourable transactions, and
that the kobala executed by P was not vaUd and
binding:— i/eW,(i) Art. 91, Sch. II of the Limita-
tion Act (XV of 1877), did not apply to the case ;
that article applying only to suits in which the do-
cuments sought to be set aside were intended to
be operative against the plaintiff or his predecessor
in title and would remain operative if not set aside.
Jagadamba Chaodhani v. Dahkina Mohun Roy
Cliaodhri, I. L. R. IS Calc. SOS : L. R. IS I. A. S4;
Janki Kunwar V. Ajit Singh, I. L. R. lo Calc. 5S :
L.R. 14 I. A. 14S : Ragkubar Dyal Sahu v.
Bhahja Lai Mi-sser, I. L. R. 12 Calc. fi9 ; and
Mahabir Pershad Singh v. Hiirihur Perskad Narain
Singh, I. L. R. 19 Cal\ ir29, distinguished, (ii)
Art. 141, Sch. II of the Limitation Act (XV of
1877), appUes to a case in which the reversion
comes after several successive female heirs, and the
present suit, having been brought within twelve
years of the death of the plaintiii's mother in
August 1882, was in time. Kokilmoni Dassia v.
Manik Chandra Joddar, I. L.R. 11 Calc. 791, re-
ferred to. (iii) The old law that Umitation which
barred the widow barred the reversioner has under-
gone a change under Art. 142, Sch. II of Act TX of
1871, and Art. 141, Sch. II of Act XV of 1877
{Sreenath Kur v. Prosunno Kumar Ghose, I. L. R.
y Calc. 934, referred to) ; but s. 2 of the Act of
1877 would make the old law applicable in respect
of the claim to the moiety covered by the kobala
by K to G, there being no collusion of the widow as
regards that kobala, and more than twelve years
having elapsed between the death of K in 18G0
and the coming into operation of Act IX of 1871
in April 1S7:> : Drobomoyi Gupta y. Davis, I. L.R.
14 Calc. 323, referred to. In the present case,
however, the possession held by the heir of G was
not adver=;e to the widow in the sense of its being
obtained against her will, and there ^vas every
reason to thmk that it was obtained in collusion
with her ; the reversioner's claim was therefore not
barred by Umitation. Nobin Chunder Chucker-
butfy V. Gurupersad Doss, B. L. R. Sup. Vol.
lOOS ; 9 W. R. OS, referred to. (iv) As regards the
moiety covered by the hebas, the widow, when
she came into possession, was the heir of K, and she
could not by any act or declaration of her own
while retaining possession of her husband's estate
give her possession or estate a character different
from that attaching to the possession or estate of a
Hindu widovv ; the objection that she held as
donee and adversely to the reversioner therefore
failed, and the claim as regards this moiety also
was not barred by Umitation. Lachhan Kunwar v.
Manorath Ram, I. L. R. 22 Calc. 445, distinguished.
Sham Lall Mttra v. Amarendbo Nath Bose

I. L. R. 23 Calc. 460

Limitation

plicable to reversioner. One C S died without i n
on the 6th January 1869, leaving two widow C
and A'^, who thereupon took a widow's estate n
such of his immoveable property as was not vai y
disposed of by him. By his vnil, dated the h
January 1869, he appointed the defendant V A
two others his executors and trustees. The .o
latter were dead at the date of this suit. By s
will he left two immoveable properties to his fe
C for life and two to his wife N, and the residi of
his property he left to his trustees, directing tm
to apply the same in charity (dharara). The o-
perties left to his widows were to revert on -ir
death to the charitj' fund held by the said trusts.
C" died in 1871. N survived tiU 1888 and die in
November of that year, leaving a wiU. The pi ii-
ifE was the nephew (brother's son) and heir obe
testator, and he sued to have his rights in an to
his uncle's estate ascertained. He contended at
the bequests for dharam were void, and thai he
property bequeathed for that purpose wasn-
disposed of. He claimed to be entitled to the vJe
of the testator's immoveable property, iii'.d-
ing that which had been devised tothewiivB
for life. The defendant pleaded that he aniiis
co-executors had held and dealt with the esta in
accordance \\ith the testator's wUl, and conteed
(inter alia) that the plamtifE's claim was barrtbj
limitation. Held, that, under Art. 141 of the L it-
ation Act (XV of 1877), the plaintiff's claim t he
immoveable properties left by the testator waiot
barred by limitation. Vundeavaxdas Pcho-

TAMDAS V. CUBSONDAS GOVINDJI

I. L R. 21 Bom 46
Held, by the Privy Council, in appeal,
question of Umitation that the suit was not i
The Umitation, if appUcable to the mov
would have been under Art. 120, and to ti
moveables under Art. 141, of Act XV ot
Art. 144, which makes the period of Uii
commence from the date when the posses
the defendant is adverse to the plaintiff, d'
apply where the suit is otherwise specially pi
for, and therefore had no appUcation here,
same time s. 28 of the Act, as to the extinct i^
right by the effect of Umitation running '
the widows, if it had done so, would not havi
appUcable to the plaintiff, whose right v '
derived from or through the widows, bir
derived through their husband on the death
surviving widow. RuivCHORDas VAxnRAV. :
«;. Parvatibai . . I. L. R. 23 Bom ^^

3 C. W. N'2i

3S. ^ Suit by

sioner to recover possession of immoveahle j"
alienated by intermediate female heir — Lnif
Act (XIV of lS59),s. 1— Limitation Act (/ ■-'
1S71), Art. 142. A female heir in possessi; oj
immoveable property for her Ufe can, w'"
legal necessity, make a vaUd aUenation of n*

( 7329 }

DIGEST OF CASES.

( 7330 )

lOTATION ACT (XV OF 1817)— contd.

Schedule Il—conld.
Art. I'il—conid.

tate, but the possession of the alienee will not,
der ordinary circumstances, be adverse to the
rersioner, vhose cause of action for posses-
>n of the said property uill not accrue until
e death of the female heir, or of the last of
ch heirs if more than one. One P, a separated
indu, died about 1822, leavirg t\\o widows, //
d A, and three daughters, B, J, and D. The
jdows took possession of the immoveable pro-
jrty of r, and some time before 1857 H, the sur-
jpor of them, sold a certain village to one HP. H
i i in 1857. The three daughters next succeeded
tihe estate of P, and the last of them died in i 890
thout having made any attempt to interfere with
:> possession of the alienee. In 1894 the two sons

• R sued for possession of the property m hich had
3n sold by B. Held, that the suit was within
le. Per Bukkitt, J. — Decrees affecting immove-
le property obtained o gainst a female heir in

)ipect of the subject-matter of the inheritance (if

• tained without fraud or collusion or the like) are
1 iding on the reversioner. An alienation made by
i'emale heir in possession is good against her for
1 ■ life, but is not necessarily binding on the rever-
8|3er, to whom, if it be invalid, a cause of action
eirues on the death of the female heir. Where
I''perty, the estate in which has descended to a
fjiale heir, never reaches her hands, but is held
ft.-ersely to her by a stranger, the cause of action
fl a suit for the recovery of the property accrues
«;he commencement of the adverse possession by
t stranger, and a suit to enforce that cause of
aion will be barred, both against the female heir
ai! against the reversioner, after the expiration of
t statutory period of limitation counting from

commencement of the adverse possession, the

nger having after the expiration of that period

uired an absolute indefeasible title to the pro-

P ly. The enactment of Ait. 142 in the Schedule

^ct IX of 1878, and of Avt. 141 in the Schedule

t'jVct XV of 1877, has not made any alteration in

^ law as laid down in the last preceding rule.

fXTMAN Prasad Singh v. Bhagauti Pkasad

I. L R. 19 All. 357

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

Adverse posses-

t^—Suit by reversioner to Hindu female heir.
ire property which should by law be in the
session of a female heir is held adversely to such
by a trespasser, the possession of the trespasser
iverse also as against tie reversimers of such
|aa!e heir as well as against the female heir, and
^ tation will begin to run against the reversioners
I the date of the commencement of such ad-
possession. Hanuman Prasad v. Bhagauti
of^, I. L. E. 19 All. 3- 7, approved. The Full
ch decision in Ram Kali v. Kularmiih, 1. L. R.
ill. lot,, has been impliedly overruled by the
ment of the Privy Council in Lachhan Kunuar
nant Singh, I. L. R. 22 Calc. 445 : L. R. 22
25. TiKA Ram v. Shama Charan

I. L. R. 20 All. 42
VOL. III.

Art. 14tl—conld.

41.

Suit by reveT'

sioner for possession of immoveable property on death
of Hindu female heir — Adverse possession — Limit-
ation Act, 1S77, s. 2 — Revival of extinguished right —
Limitation Act (IX of 1H71). A and I, daughters
of one R, on his death succeeded in equal shares to
the properties left by him. Subsequently A died,
leaving behind her a minor son U, who after his
mother's death held possession of half of tho said
properties as heir to his mother's father for more
than twelve years. The period of twelve years ex-
pired before the Limitation Act (IX of 1871) came
into operation. In a suit for recovery of possession
of the share of the immoveable properties, which
was originally in the possession of U but afterwards
passed into the hands of a third party, by the
reversioner within twelve years from the death of /,
the female heir, the defence was that the suit was
barred by limitation. Held, that, inasmuch as the
possession of U was adverse to the female heir, and
as her right to the disputed property Mas barred
before the Limitation Act (IX of 1S71) came into
operation, the right of the reversioner was also
barred. Srinath Kur v. Prosonno Kumar Chose,
I. L. R. 9 Calc. 93 1, followed. Tikaram v. Shama
Charan, L L. R. 20 All. -^;?, dissented from. Braja

LaL StN v. JiBAN KrISXA RoY

I. L. R. 26 Calc. 285

42.

Hindu laic-

Adverse possession — Suit ly reversioner to estate held
by a Hindu female. Under Art. 141 of the second
Schedule to the Indian Limitation Act, 1877, a suit
can be brought by a reversioner for possession of
immoveable property, to the possession of which
a female heir had been entitled, Mithin 12 years
from the date of the death of the female heir,
although she may have been out of possession for
more than twelve years. Runchordas Vandravan-
das V. Parvatihai, I. L. R. 22 Bom. r25, followed.
Larhhan Kunuar v. Manorath Ram, 1. L. R. 22
Calc. 4^5, distinguished. Ram Kali v. Kedar Nath,
1. L. R. 14 All. l>t> ; Hanuman Prasad Singh v.
Bhagauti Prasad, 1. L. R. 19 All. 3->7 ; and TiU
Ram V. Shama Charan, L L. R. 20 All. 42,
referred to. Amrit Dhar v. Bindksri Prasad
(1901) . . . I. L. R. 23 All. 448

43. — Cause of action,

accriial of — Adoption — Reversioners, suit by — Hindu
tvidow, alienation by — Minority, evidence of. A
Hindu Midow alienated certain immoveable pro-
perty belonging to her husband's estate, and after
the alienation adopted A' in the year 1857, who died
in 18G2 after attaining majority, leaving his widow
,S', who succeeded him. S died in 1899, and the
plaintiffs, as reversionary heirs of A', instituted this
suit for setting aside the alienation and establishing
their right -.-Held, that the present suit was barred
by the law of limitation, the cause of action having
accrued to the adopted son K during his lifetime
and that Art. 141, Sch, II of the Limitation Act
(XV of 1877) did not govern this case. Govinda

11 A

( 7331 )

DIGEST OF CASES.

( 7332 )

LIMITATION ACT (XV OP 1877)— co.iid.

Schedule II — contd.
Art. 141 — concld.

Nath Roy v. Ram Kanai Chowdhury, 24 W. R. 1S3,
and Prosanna Nath Roy v. Ajzolonmssa Begum,
I. L. R. -/ Calc. 523, doubted. Lahihman v. Radha-
bai, I. L. R. 11 Bom. 'iOI; Nathaji Krishiaji v.
Hari Jagoji, S Bom. H. G. 67 ; Moro Narayan v.
Balaji Raghunath, I. L. R. 19 Bom. W9, and Bijoy
Gopal Mukherji v. Nil Ratan Mukerji, I. L. R. 30
Calc. 9W, referred to. Ameita Lal Bagchi v.
Jatindra Nath Chowdhury (100.'))

I. li. R. 32 Calc. 165

44 -Suit by a Hindu

entitled to possession of immoveable property on the
death of a Hindu female. One Hazari Lal died in
1856, possessed of certain immoveable property,
and leaving a son, Jawahir Lal, and a widow,
Chuni, surviving him. Jawahir Lal died in 1861,
leaving a widow, Tarsa, and a daughter, .Jhamman
Kunwar. After Jawahir Lai's death the widows,
Chunni and Tarsa, divided the property between
them, and Chunni's share, after passing through
the hands of Chandan, the daughter of Hazari Lal,
came into the possession of Nand Lal and Dull
Chand, the two sons of Chandan. Nand Lal and
DuU Chand in 1876 sold their interest to one Jaidip
Rai, who in turn made a gift thereof to his wife,
Tiloki. Tarsa died in 1900, and in 1901 Jhamman
Kunwar filed a suit for the recovery of the immove-
able property of Hazari Lal. Held, that the suit
was governed, as to limitation, by Art. 141 of the
second Schedule to the Indian Limitation Act, 1877,
and was not barred by limitation. Runchorlas
Vandravandas v. Parhalihai, I. L. R. 13 Bom.
725 ; Ram Kali v. Kedar Nath, I. L. R U All.
156 ; and Amrit Dlmr v. Bindesri Prasad. I. L.
R. 23 All. 44S, followed. Mussummat Lachhan
Kumoar v. Anant Singh, L. R. 22 I. A. 25, dis-
tinguished. Hanuman Prasad Singh v. Bhagauti
Prasad, I. L. R. 19 All. 3')7, and Tilca Ram v.
Shama Charan, I. L. R. 20 All. 42, referred to.
Jhamman Kunwar v. Tiloki (1903)

I. L. R. 25 All. 435

45.

Suit for posses-

sion of immoveable property — Suit by assignee of
reversioner — Limitation — Time from tvhich limit-
ation runs — Vendor out of possession at date of
transfer. Where a suit by an assignee from a
Hindu reversioner, who was out of possession at the
date of assignment, was brought within 12 years
from the death of the Hindu female upon whose
death the reversioner became entitled to the pro-
perty. £feM, that Arts. 136 and 141 of the sejond
Schedule to the Limitation Act should be read to-
gether and the suit was not barred by Umitation.
Gadadhar Roy u. Hare Krishna Sa'rkar (1904)
8 C. W. N. 535
Art. 142 (1871, art. 143)—

See ante, ss. 23 and 28 and Sch. II, Arts.

120, 142 and 144.
See Document.

I. li. K. 30 Calc. 433

LIMITATION" ACT (XV OF 1877)-contd.
Schedule II — contd.

— Art. 14:2— contd.

See Landlord and Tenant.

13 C. W. N. 698
See Onus of Proof — Limitation and Ad-
verse Possession.

I. L. R. 16 Calc. 473
I. L- R 19 Calc. 860
I L. R. 14 Bom. 458
I. L. R 16 Bom. 3i3
I. L. R. 14 Mai. 96

1. Sale in execution

of decree. When a suit to establish his title and to ,
recover possession of property is brought by a
person who has been dispossessed under a sale in]
execution of a decree against ot ler p3rs")a?, and no '
summary order has been made declaring the pro-
perty liable to be sold in execution of such decree,
the period of limitation applicab'e is that pre-.
scribed by cl. 12, s. 1, Act XIV of 1859,— wz.,i
twelve years from the date of dispossession. JoDOO-
nath Chowdhry v. Radhomonee Dassee

B L. R Sup Vol 643: 7 W. R. 53

Gedroo Sircar Bsharee Lall RunR\

20 W. R. 165

2. Dispossession o

discontinuance. The word " discontinuance " m
Art. 142, Sch. II of the Limitation Act, refers to a
case where the person in possession goes out and
is succeeded in possession by another. Runi v
Barlin, L. R. 14 Ch. D . 537, and Gobini Lall Sea
V. Debendro Nath Mallick, 1. L. R. 6 Oak. 311
followed. Sohnur Ali v. Hatt.man

1 C. W. .T!r. 27'.

3. Joint family pre

perly, exclusion from. Art. 142, Sch. II of th
Limitation Act, has no application to a case wherf
the plaintiff has been excluded from a joint famil,
property. L^mesh Chandra Bhattacharjee '
Jagadish Chandra Bhattachaiuee

1 C. W. N. 54^

4. Suit to rem\

possession — Sale in execution — Civil Procedure Cw
ss. 249, 269, 264, and 269. In execution of a decre
obtained against A, his right, title, and interest
certain property were sold, but the certificali
.5ale erroneously recited that A and B's anct-:
were defendants in the suit, and that the intci
of the defendants in the suit had been sold; a
accordingly the purchaser was put in possess!
under s. 264, Act VIII of 1859, of the right, tr
and interest of B's ancestor as well as of ^ in t
property. In a suit brought by B for confirmati
of title and recovery of possession after the lapse
a year, but within twelve years from the date
dispossession : — Held, that the suit was not ban
by lapse of time. Protab Chunder Chovvdb
V. Brojololl Shaha -

B. L. R. Sup. Vol. 638 : 7 W. B. 2

5. Dispossess^

under sale in execution — Improper certificate of «'

( 7333 )

DIGEST OF CASES.

{ 7334 )

.CITATION ACT (XV OF 1811)— conid.

i Schedule ll—c(»itd.
Art. 142— con^f?.

'Jatiff, having been dispossessed under a certi-
c e of sale which was not conformable to or
'1 'anted by the sale itself, was declared entitled
1 ing made no complaint to the Court which
rj executing the decree) to bring his suit for
51 iration to his property any time within twelve
es from the date of his dispossession. Bheem
;. U.LEE V. Khoobun Sahoo . 17 W. R. 429

Suit to recover

' of lands sold in execution of decree. The

- tenant having been ejected from certain

l>le property of the plaintiff, under an

^ile in execution against a third party,

ai laiutiff made no application to the Court under

. ; 5 or 2G9 of the Civil Procedure Code to prevent

r I .v^ido the sale. Held, th^t he was not bound

l)ut that he was entitled to file a regular

iiblish his title and recover possession

me within twelve years from the date

possession, under cl. 12, s. 1. Lalchand

;s V. Lakharam . 5 Bom. A. C. 139

vi.,iiHng Krishnaji v. Joshi Makttnd Chiman-

Hj' . . . .2 Bom. A. C 18

'' . . Suit for lands in

xc ? taken in execution of decree. A suit to recover

rr^ lands wrongfully taken under cover of a

imes within the twelve years' period of

1. GouR MoNi MooRAiN V. Shux Kuree

^EE . . . . 13 W. R. 459

i - • Decree for ivrong-

id ossession — Cause of action. In a suit for

' " of possession of a share in a certain talukh ,

l''gation that the plaintiff had been dis-

i under an award passed under s. 15, Act

V 1 ii l»o9, the defence set up was that the plaiut-

3 iis not in possession of the property within

^'c'5 years of suit. Held, that the wrongful

■ 11 which the plaintiff held during the few

"fore the award under Act XIV was no

I which could take his case out of the Act

1 1 ion. The dispossession under the award

ive him a fresh cause of action. Golam

BiswANATH Kar . 3 B. L. R Ap 85

12 W. R. 9

MCHAXD KyBUTTA V. HUREE Do.SS KyBUTTA

22 W. R. 259

A Banu v. Abdul Guffer Chowdhrv

12 C. L R. 486

Suit to establish

'''fe tnded by award under s. 15, Act XI V of 1S69.
' estabUsh the plaintiff's title to property
!iy an award under s. 15, Act XIV of 1859,
ined by the limitation of twelve years,
ause of action arose from the date of the
KsHAN Chundee Banerjee V. Zamit-
■ :ssA Khatoon . 17 W. R. 468

.■'•*-|^ ■ Suit for posses-

i^onrJilegal resumption by Government. The plaint-

LIMITATION ACT (XV OF 1877)— co7i<(i.

Schedule II — contd-
—Art. 1^2 -conld.

iff was possessed of an estate situate on the bank
of a river, and of certain chur lands which had
accreted thereto. The Collector took possession
of the chur lands in 1818, upon the default of the
proprietor to appear to answer a claim made by
Government to assess the chur land. In 1824 a
suit was filed by Government under Regulation II
of 1819 for the resumption of these lauds, the Gov-
ernment officers, however, continuing to hold
possession and collect the rents. In 1847 the Col-
lector, in conformity with a general order under
Act IX of 1847, " for the abatement of all suits
for the resumption of alluvial lands then pending,"
struck off the suit and restored the lands to the
possession of the zamindar. The proprietor
claimed the v/asilat enjoyed by the Government
during his dispossession ; and the Government
again dispossessed him, under the assumption that
the lands were an island in the river, and that the
plaintiS was not entitled to them as an accretion.
The plaintiff having brought a suit in 1854 to estab -
lish his right to the lands in question: — HeM, that
the statute of limitation was no answer to the suit,
because the pendency of the suit for the resump-
tion and assessment of the lands betv.-een 1824 and
1S4S prevented the proprietor from commencing a
suit during that period, and that during such period
the limitation did not run ; and, further, after that
period the necessity for a suit was obviated by the
restoration of the lands to the r proprietor. Held,
also, that a fresh cause of action accrued under the
second ouster. Sdrnomoye v. Collector of
RuNOPORE . Marsh. 13: W. R F. B. 4

IHay 37

11. Suit to recover

possession of land sold for arrears of revenue. In a
suit to recover possession of certain villages belong-
ing to a talukh which had been sold by Government
for arrears of revenue, where the plaintiff alleged
that they ought not to have been sold as they were
not subject to revenue, the second defendant, who
was the purchaser and in actual possession, pleaded
limitation as a bar. The plaintiff urged that a
fresh cause of action arose in conseqneace of some
proceedings of the Government by which they made
a new grant of the villages to the second defendant
at an increased revenue. Held, that such grant
would not give a new cause of action, and could
not affect the time when the only cause of action
arose to the plaintiff. Chattanya CJhukdra Hitris
Chandaxa Jagadevu v. Collector of Gaxjam

22 W. R. 187
li. R. 1 I. A. 335

12.

Cause of action-

Suit for land sold, but taken back under agreement to
excJuinge. In a suit to recover possession of l?,nds
which had been sold to plaintiff, but which had been
subsequently taken back by one of the vendors
under an agreement that he would make over other
lands in exchange, plaintitl's contention being that
he had been dispossessed of these other lands which

11 A 2

{ 7335 )

DIGEST OF CASES.

( 7336 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
'. Art. 142— foni'?.

were eventaully decreed to aaother party : — Held,
that plaintitE's cause of action originated on the
date of the decree depriving him of the lands last
mentioned. Kabul Keishna Doss v. Mohessukee
Debia . . . . 16 W. B. 270

13.

Discontinuance of

possession — Diluviated lands afterwards re-formed —
Adverse possession. Per Gakth, C.J. — Where a
person can show that he has been in possession of
certain lands prior to such lands becommg dilu-
viated, his possession must be considered as con-
tinuing during the time of diluvion until such time
as he becomes dispossessed by some other person ;
and in such a case the onus lies upon the dispos-
sessor to show that he has acquired a title under the
law of limitation which has put an end to the rights
of the original possessor. Per White, J. — The
dispossession, or discontinuance of roossession,
mentioned in Art. 143, Sch. IT of Act IX of 1871,
is that which occurs where the property is taken
actual possession of by another, and does not apply
to the case where the property is submerged by the
act of God, and so made impossible of occupation
and actual possession. Owners of land which has
suffered from successive diluviations and reform-
ations must, if they wish to preserve their rights,
bring their suit within twelve years of the time
when adverse possession is first taken of land re-
forming on the original site, whether at the time of
suit the land is capable of occupation or is lying
under water in consequence of a second diluvion.
Kally Churn Shahoo v. Seceetakv of State for
India . I. L. R. 6 Calc. 725 : 8 C. L. R. 90

and Arts. 139, 144— Z);*

LIMITATION ACT (XV OF 1877)^on<cf>

Schedule II — contd.
Art. 142— coTifo/.

continuance of possession. In a suit to recover
possession of a house, the plaintiffs alleged that
their predecessor in title had permitted A, the
father of the defendants, to occupy the house in
question without paying any rent for it, and that
since A's death, which took place about twenty
years before the institution of the suit, the defend-
ants had been permitted to reside therein without
pa5'ing rent. The defendants contended that the
plaintiff's predecessor in title had made a gift of
the house to A ; that he had remained in possession
of it until his death : and that since then they
had been in possession of the house by virtue of
the gift. Held, that the suit was barred by limita-
tion under Act XV of 1877, Sch. II, Art. 142. The
meaning of Art. 142 is, that where there has been
possession followed bj' a discontinuance of posses-
sion, time runs from the moroent of its discontinu-
ance, whether there has or has not been any adverse
possession, and without regard to the intention
with which, or the circumstances under which,
possession was discontinued. Arts. 139 and 142
of Act XV of 1877 considered. Gobind Lall Seal
V. Debendronath Mullick

I. L. R. 5 Calc. 679 : 5 C. L. R. 527

In the same case on appeal : — Held, that a su
for the recovery of immoveable property against
person ^vho had originally been in mere permissi^
occupation or possession accorded on the grour
of charity or relationship is governed by Act X
of 1877, Sch. TI, Art. 144, and not by Art. 142
the same Schedule. In such a case the o\mev of t
property, who has accorded the permissive occ
pation, cannot be said to have " discontinued
the possession. Gobind Lall Seal v. Debe
DEONATH Mullick

I. L R. 6 Calc. 311 : 7 C. L. R. 1

15. - — . Proprietors kavi

refused at the first regiilar settlement to engage, a

others having been admitted as malguzars of the lam-

Effect of lapse of time — Discontinuance of possessit.

The proprietary right would continue to exist uri

by the operation of the law of limitation it ]\

become extinguished ; but if a claim comes witi

the terms of Art. 142 (enacting that when p

plaintiff, while in possession of the property, B

been dispossessed, or has discontinued possession -

mitation shall run from the date of the dispossess!

or discontinuance), in such a case, by the'lavi

Act XV of 1877, and previously of Act IX of If.,

adverse possession is not required to be provecn

order to maintain a defence. At the xeg'X

settlement in the Delhi District (1843) the plainl3'

ancestors, ex-muafidars of a plot on which the rfc-

free tenure had been resumed in 1838, decUnp »

engage for the revenue ; and the plot was asse^d

along with the village in which it was ; the vi];e

proprietors through the lambardars engaging t,

and obtainmg, the land. At the revision of se e-

ment more than thirty years after the plaii^s

claimed possession alleging their title, and at

the village co-parceners held only in farm 'm

the Collector for the period of settlement :—m,

that there had been a dispossession, or discon u-

ance of possession, within the meaning of Art. - J

and that, w hether any proprietary right had es-ed

or not in the plamtiff's ancestors, the twelve j^re

limitation ran from the date of the dispossessi or

discontmuance. Mahammud Amanulla Kh. »•

Badan Singh . . I. L. R. 17 Calc 37

L. R. 16 I. A. 48

16.

Suit for f

sion — Dispossession during unexpired lease by /
iff's predecessor. In a suit brought by the l
iff in 1880 to recover possession of certain
from which his predecessor in title had bee
possessed, in which suit the Court of first in.
i found that the defendant had dispossessei i|^
1 plaintiff's father in 1860, during the une^
I term of a lease granted by the plaintiff's fath to»
i ticcadar -.—Held, that the preponderance of aiiM'
ity in India was in favour of the view that jU»"
tion ran from the date of the expiry of th(t'■^(»,
and not from the time when the defenda na»
been held by the Court of first instance t(i»T6

( 7337 )

DIGEST OF CASES.

( 7338 )

LIMITATION ACT (XV OF 1877)— con^fi. LIMITATION ACT (XV OF 1877)— co«f^

Schedule 11— contd.
Art. 142.— contd.

dispossessed the plaintiff's father. Sheo Sohye
Roy v. Luchmesuur Sinoh

I. L. R. 10 Calc. 577

17.

Suit for

sion of immoveable property — Suit for cancellation of
imtrume7it—Act XV of 1S77, ScJi. II, Art. 91. The
plaintiff sued to set aside a mortgage by conditional
■ale of certain immoveable''property belonging to
I'im, made on his behalf during his minority, and
'i r possession of the property. Held, that the suit
;iva8 one described in Art. 142, Sch. II, Limitation
l^ct, 1877, and not in Art. 91 of that Schedule.
IRamausae Paxdey v. Raghubar Jati
I I. L. R. 5 All. 490

18.

Symbolical pos-
certain pro-

On the 7th November

>erty was purchased by one G D B at a, sale held in

xecution of a decree obtained against one J G.

)n the 8th January 1873, the purchaser obtained

sale-certificate, and, on the 10th August 1873,

/as put into symbolical pos.session of the property

hrough the Court. On the ord March 1875, the

ilaintiff, in execution of a decree obtained against

■' D B, purchased this property, symbolical posses-

jion of the property being given to him by the Court

In the 31st March 1875. On the 7th August

1885, the plaintiff brought this suit to recover

jossession of this property, alleging that he had

een dispossessed therefrom, on the i;')th July 1 885,

y the defendant No. 2, who had taken an ijara of

le property from the son of J G. The defence set

p was limitation. Held, that on the principle laid

3wn in Juggobundhu Mukerjee v. Iin7n Chunder

ysack, I. L. R. ■) Calc 584, the suit was not barred.

riahrw, hall Dutt v. Radha Krinhna Surkhel, I. L.

10 Calc. 402, overruled. Jogorundhtj Mitter

PrnmANUND GossAMi I L. R. 16. Calc. 530

Dhapi V, Barham Deo Peushad

4 C. W. N. 297

18-^ Dispo.'ssc^sion.

Ijere the plaintiffs were proprietors of land, but
clined to engage for the land revenue, in consc-
ience of which the defendants were admitted so to
and to obtain possession. Hckl, that there was
lispossession of the plaintiffs within tiic meaning
Art. 142, and that a suit by the plauitiffs brought
'^r the expiration of the thirty years' settlement
th the defendants was barred. Muhammad
lANULLA Khan v. Badan Singh

L. R. 16 I A 148
I. L. R. 17 Calc. 137

20. _ Possc-^sion, suit

•I — Privy Council, practice of — Concurrent deci-

* nt on fact — Evidence as to ownership of property

* i henami. Two properties bought by a Maho-
» dan father in his lifetime, but held in the name s
<l members of his family, were the subject of
*puto after his death, the question being whethe

* y belonged to his estate, so as to be divisibli

Schedule 11— cojitd.

■ Art. 142 —cow td.

among the sharers in the inheritance, or had been
held so that the beneficial interest in them belonged
to those of his children who had been born of one of
his two wives, excluding the sons bom of his other
wife. The Courts below decided in favour of the
sons of the wife first married. As to one of the
properties, they concurred in finding the facts
entitling these sons alone, and the committee'pre-
ferred not to depart from the general rule as to
concurrent decisions on fact. As to the other pro-
perty, both the Courts found that there had been
a transfer from the name of the original benamidar
into the name of the wife first married : but where-
as the first Court found that this change was in-
tended to give her the beneficial interest, which
thenceforth belonged to her, and to her sons after
her, the Appellate Court found that the transfer
was simply from one benamidar to another, although
after the death of the mother the property
had been treated as that of her sons. Accordingly,
as to this the evidence was considered, and their
Lordships inclined to tlie view taken by the first
Court. However, the title not having been clearly
proved, they preferred to rest their decision on the
possession found. The claimants, and their father
before them, having together been out of pos.session
for more than twelve years Ijjefore action brought,
limitation was an absolute bar. Asghar Reza v.
Medhi Hossein . . I. L R. 20 Calc. 560
L. R 20 I. A. 38

21. __ and Art. 44 — Mortgage, -suit

for redemption of — Equity of redemption, purchase
of, by mortgagee — Adverse possession by mortgagee.
The plaintiff sued to redeem certain land which he
alleged had been m )rtgaged by his father in 1858
to one B, the grandfather of the first defendant.
The defendants alleged that the mortgage was ex-
ecuted not to B, but to the father of the second de-
fendant, and that in 18G3 the equity of redemption
had been sold to the mortgagee by the widows of
the mortgagor, the ))laintiff being then a minor.
The defendants contended that this suit was really
to set aside the sale of lSt)3, and was barred l)y .Art.
44 of the Limitation Act (XV of 1877). The second
defendant also pleaded adverse possession. Th©
plaintiff contended that the second defendant and
his father had possession of the land merely as the
agents or trustees of the mortgagee. Held, that
Art. 44 of the Limitation .Act did not apply, and
that the suit was not barred. The necessity of
impugning the sale of 1SG3 to the second defendant
arose from the second defendant's resisting the
plaintiff's claim to redeem the mortgage. Held,
also, that the second defendant, having entered
into possession as mortgagee, could not afterwards
set up an adverse possession as owner so as to
defeat the plaintiff's right to redeem. Bh.\gvant

GOVTND V. KONDI VAL:\D MaHADU

I. li. R. 14 Bom. 279

22. and Art. 14A— Suit for posses-

divisible i sion alleging obstruciion to possession — Adverse

( 7339 )

DIGEST OF CASES.

( 7340 )

LIMITATIOIf ACT (XV OF 1877)— contd.

Schedule 11— contd.
Art. 14:2— confd.

possession. The plaintifE sued to recover posses-
sion of certain land, together with mesne profits
until recovery of possession, alleging that he had
obtained possession under his sale, and that his
possession was obstructed by the defendants. Held,
that the suit fell under Art. 142, and not Art. 144,
of the Limitation Act. Faki Abdttli-a v. Babaji
GuNGAJi . . I. L. B. 14 Bom. 458

23. - " Possession, "

LIMITATION ACT (XV OP 1877)-«on<(f.

Schedule II — covtd.
Art. 14:2— contd.

" dispossession,'''' meaning of — Dispossession %n
execution of decree under s. 9, Specif!/^ Relief Act
(I of 1877) — Wrongful possessiotir— Civil Procedure
Code (Act XIV of 1882), s. 544— Appeal— Common
ground — Death of one of several appellants — Legal
representatives not hrought on record — Partial
reversal of decree. When a plaintiff's title is once
established his possession however obtained would
be possession within Art. 142 of Sch. II of the
Limitation Act. The plaintiffs, who had been
dispossessed by the defendants of some lands ap-
pertaining to their taluk, forcibly dispossessed the
defendants, until the latter reco\-ered possession in
execution of a decree under s. 9 of the Specific
Relief Act. The plaintiffs brought the present suit
for recovery of possession within 12 years from
their dispossession in execution of the decree, but
more than twelve years after the original dispos-
session. Held (affirming Mitba, J.), that the suit
was not barred by hmitation. Golam Nabee v.
Bissanath Ear, 12 W. B. 9 ; Prem Chand Kyhutta
V. Haridas Kyhutta, 22 W. B. 259 ; Tarahanu v.
Abdul Gafur Chowdry, 12 C. L. B. 486, not followed.
Lillu bin Baghu Sett v. Annaji Parashram, I. L. B.
5 Bom. 387 ; Bandu v. Nala, I. L. B. 15 Bom.. 238,
approved. The Trustees, Executors and Agency
Company, Limited v. Short, L. B. 13 App. Gas.
793 ; The Secretary of State for India in Council v.
Krishnamoni Gupta, 6 C. W. N. 617 ; s.c. I. L. B.
29 Calc. 518, referred to. Protap Chandra Chat-

TERJEE v. DXJBGA ChARAN GhOSE (1905)

9 C. W. -N. 1061

24. Adverse posses-

sion— Cause of action — Title — Specific Belief Act
[I of 1877), s. 9. The plaintiffs having been dispos-
sessed of certain lands by the defendants in 1894
and 1896 in execution of decrees under s. 9 of the
Specific ReHef Act, instituted this suit in 1901 to
recover possession of those lands. The .suit was
dismissed by the Courts below on the ground that
the claim was barred by hmitation, the plaintiffs
having failed to prove possession within 12 years
antecedent to the institution of the suit. Held,
that, if the title was with the plaintiffs, their pos-
session during the interval between the time when
they ousted the defendants and the time when the
latter recovered possession by virtue of the decree
under s. 9 of the Specific Rehef Act, should be
regarded as the possession of the rightful owner,
and not of trespassers, and therefore there would

be no limitation against the plaintiffs' clair
Mamtazuddin Bhutan v. Barkatulla, 2 C. L. J.
and Protap Chandra Chatterjee v. Durgn Chare
Ghose, 9 C. W. N. 1061, referred to. .Ton.*
Sheikh v. Stjrja Kanta Achabya CnowDHui
(1907) . . . I. Ii. B. 33 Calc. 85
s.c. 10 C. W. N-. 10(

25. ^ Suit hij vendee i

possession of immoveaUe property — Vendor out
possession — Burden of proof.' Where a vendee ,
immoveable property sues for possession, his vend
not having been in possession, at the time of t
sale, it hes upon the plaintiff to show that 1
vendor was in possession at some period with
twelve years prior to the date of the suit. Kasi
nath Sitaram'Oze v. Shridhar Mahadeo Patanh
I. L. B. 16 Bom,. 343, followed. And when in su
a case the property sold was a share in a hoi
belonging to two separated brothers : Held, tl
the possession of one of the brothers could not
taken to be on behalf of the absent vend
Deba v. Rohtagi Mal (1900)

I. L. R. 28 All. 4

26. — -Possession, «

for — Limitation — Onus — Presumption from title.
is for the plaintiff in a suit for ejectment to pn
possession prior to the alleged dispossession,
the same time, in this question of evidence,
initial fact of the plaintiff's title comes to his 1
with greater or less force according to the circi
stances estabhshed in evidence. Mohimn CI-
Mozoomdar v. Mohesh Chunder Neogi, L. /.
1. A. 23, approved. Hemanta Kumaex Dek
Jagadindra Nath Roy (1906) lO C W. N. f ^

27.

Limitation-

verse possession — Defaidter — Share of default
on farming lease — Share not claimed on expi
lease. One Mulchaud, who owned an eight-i
zamindari share in mauza Rajipur, disappear'
1857 leaving Government revenue unpaid,
share was thereupon made over to Mangu Lai.
afterwards to one Pahalwan Singh, on a fai
lease, which expired in 1871. On the expii,
this lease Pahalwan Singh still retained posse
of the property, and ultimately in 1891 it wa^
in execution of a decree against him and pure!
bv the predecessor in title of the answering d( •
ants. In 1903 a suit was brought for recovci
possession by the purchasers of Mulchand's i
from his representatives. Held, that after
Pahalwan Singh's possession became adver-
Mulchand and the suit was barred by hraita'''
Nihal Singh v. Dula Singh, Punj. Bee. (1SS5) :•'•
No. 38, 71, approved. Madho Singh v. Sv^
KuNWAK (1905) . . I. L. E. 28 All.»»

28 Public Der.^^f

Becovery Act {Bengal Act I of 1895), ss. 8.
Notice— Limitation Act {XV of 1877), Sch. II.

( 7341 )

DIGEST OP CASES.

( 7342 )

[MITATION ACT (XV OP 1817)— cont'l.
Schedule 11— contd.

Art. 1^2— concld.

',142 — Sale in execution of certificates — Suit to set
ide sale — Possession — Certificnlc, efject of. \\ hen
)tice has not been served under s. 10 of the Puhhc
emands Recovery Act, 1895, and a suit is brought

set aside the sale and to recover possession of the
•operty sold, Art. 142, and not Art. 12 of Sch. II

the Limitation Act is applicable. Under s. 8 of
.e PubUc Demands Recovery Act, a certificate
ily made and filed, has, in so far as regards the
I .ledies for enforcing it, the force and effect of a
'cree of a Civil Court notwithstanding that notice
,ay not have been served under s. 10 ; but a sale
■Id without service of notice under s. 10 is wholly
.thout authority, and is a nullity. Purna

lAKDEA CHATTERJEE V. DiNiiEANDHU MfKEEJEE

107) . . I. li. R. 34 Calc. 811

_ Arts. 142, 144-

See ante, ss. 7, 9

9 C. "W. ]Sr. 795

Bes judicata —

findings necessary to support decree — Limitation
.\t {XV of 1S77), s. 14 — ' Unaile to entertain suit '
-1 Other causes of a like nature ' — Dismissal of pre-
Vus suit for non-joinder — Possession under decree
^sequently reversed — ScTi. II, Art. 93. An appel-
I'j judgment operates by way of estoppel as
rjardsall findings of the lower Court, which though

1 referred to in it, are necessary to make the
»)ellate decree possible onty on such findings.
i)laintiff is not entitled under s. 14 of the Limit-
aju Act to exclude the time spent in prosecuting
atrevious suit when such suit was dismissed for
ti-joinder on findings arrived at after trial and
r without trial, because the Court was unable to
certain the suit. Under Art. 142, Sch. II of the
I|iitation Act limitation runs from the date of
djwssesaion, and no fresh starting point is given be-
cJse the party dispossessed subsequently obtains

-ion under a decree and is ousted from posses-
.cn the decree is reversed. Sayad Nasrudin

'Kutc^h Prabhu, I. L. B. 6 Born. 382, followed.
L^htiibery Dossee v. Bajah Anim/buith Roy, W. R.
(y4) 43 : Firin-gee Sakoo v. Shaiyi Manjhec, S
hR. Civil Rule 373, and Dagdu v. Kaln, I. L. R.

2 Bom. 733, referred to. Sch. II, Art. 93, does
n[ apply when the suit is substantially for posses-
«j of property, though the plaintiff avers that an
in rument relied on by the defendant is a forgery.
Sjdarnm v. Sithammal, 1. L. B. 16 Mad. 311, and
4u/ Rohim v. Kirparam Daji, I. L. E. 16 Bom.
i<! followed. Narayanan Chetty r. Kena-
h]m.« Achi (1905) . I. li. R. 28 Mad. 338

— Art. 143 (1871, art. 144)—

^^ — Stipulation by

nt to clear land, snit for breach of. Limitation

held to apply in a case where it was stipulated

lease that the tenant should clear a defined

M. in a certain time, the cause of action accruing

*in the defendant did not clear by the time

LIMITATION ACT (XV OF 1877)— contd.

Schedule ll—contd,
Art. 14:3— contd.

specified. Tusieezoodeen Ciiowdiiry v. SrRWAR
Kh.\n 7 W. R. 209

2 Breach of condi-
tion— Forfeiture — AlieTiation by Hindu tvidow. A
Hindu widow, under an arrangement with her de-
ceased husband's cousin, was in possession for life
of a share of ancestral property of her hu.sband's
family, in which he jointly with the cousin had
held a .share in his lifetime. This share .she sold as
if she had held an absolute interest, and the pur-
chaser's name was entered, in.stead of hers, in the
revenue records ; but no change of possession took
place till her death. To a suit brought by the
cousin's heirs to recover the property purchased
from the widow, more than twelve years after the
sale, but less than twelve years ufter the widow's
death, the defence was limitation under Act IX of
1871, Sch. II, Art. 144, commencing from the date
of the sale, there having been, it was alleged, " a
breach of condition or forfeiture " within the mean-
ing of that clause. By the terms of the arrange-
ment contained in a solehnama, the widow was to
have no power to alienate, and after her death
her share was to belong to the cousin. Held, that
these terms prohibited only such an alienation by
the widow as would prevent thd cousin's .succeeding
after her death, and the alienation made was good
for the widow's lifetime. There was no condition
against such an ahenation ; and if there had been
there was neither any rule of law, nor anything in
the words used in the solehnama, attaching forfei-
ture to the breach of such a condition. Held,
accordingly, that Art. 144 did not apply, and the
suit was not barred by limitation. Sahodra v.
Rai Jang Bahadur. Lutchman Sahai Chow-
DHRY V. Rai Jang Bahadvr

I. L. R. 8 Calc. 224 : L R. 8 I. A. 210

Act IX of 1S7U

23 — Breach of condition in mortgage — Suit for
ejectment of mortgagees — Continuing breach of con-
tract. In November 1873 M sued for the cancel-
ment of a deed of usufructuary mortgage executed
by her in November 185(), and for the ejectment of
the mortgagees, on the ground of the breach of a
condition in the deed that the mortgagees should
pay her a life annuity of R15, during the term of
the mortgage (twenty years), and also after fore-
closure, otherwise, on any failure, they would be
liable to ejectment and to the forfeiture of the
mortgage. It did not appear that any payments
of the annuity had been made. The plea of limit,
ation having been taken, the lower Courts held that
the suit was within time, as the case fell within
Art. 148, Sch. II. Act IX of 1871. It was held in
special appeal that. a.ssuming that they were in
error in so holding, the case was governed by Art.
144 and the provisions of s. 23 enabled the plaint-
iff to treat each failure to pay the stipulated
annuity as a new breach giving a new right to

( 7343 )

DIGEST OF CASES.

( 7344 )

LIMITATION ACT (XV OF 1811)— conid.
Schedule II— contd.

Art. 143 — concld.

eject, and that the suit was therefore clearly
within time. Sadha v. Bhagwani . 7 N". W. 53

4. ■ Agreement to pay

annual fees — Right of possession in defaidt — Suit for
possession. The purchasers of certain land agreed
to pay the vendors certain fees annually in respect
of such land, and that in default of payment the
vendors should be entitled to the proprietary
possession of a certain quantity of such land. The
purchasers never paid the fees, and more than
twelve years after the first default the vendors sued
them for possession of the land they were entitled
to. Held, that the suit, being; governed by Art.
143, Sch. II of Act XV of 1877, and more than
twelve years having expired from the first breach
of such agreement, was barred by limitation. The
difference between s. 23 of Act IX of 1871
and Act XV of 1877 pointed out. Bhojraj
V. GuLSHAN Ali I. L. R. 4 All. 493

Art. 144 (1871, art. 145 ; 1859, s. 1,

cl. 12)—

1. Immoveable Property .

2. Adverse Possession

Col.
. 7343
. 7351

See ante, ss. 23 and 28 and Sch. II, Arts.

120, 142 and 144.
See ante, Sch. II —

Art. 10 ; . I. L. R. 24 All. 17
Arts. 119, 118 and 144;
Arts. 120 and 144 ;
Arts. 134 and 144 ;
Arts. 136 to 138 and 144.
See Benami Transfer.

I. L R. 35 Gale. 551

See Landlord and Tenant — -Nature of

Tenancy . I. L. R. 27. Bom. 515

See Onus of Proof — Limitation and

Adverse Possession.

I. L. R. 19 Calc. 660
I Ii R. 14 Bom. 96
I. Ii. R. 14 Bom 458
I L R. 18 Bom. 513
I. L. R. 25 Bom. 362
See Possession — Adverse Possession.
I. L R. 21 Bom. 509
I. L. R. 29 All. 593

See Sale for Arreras of PvEvenue —
Incumbrances — Act XI of 1859.

I. Ii. R. 14 Calc. 109

1. IMMOVEABLE PROPERTY.

1- — — Toda giras hak — Immoveable

property. The expression " immoveable property "

LIMITATION" ACT (XV OP 1877)_conk

Schedule II— contd.
. — Art. 14A— contd.

1. IMMOVEABLE PROPERTY— conti.

in Act XIV of 1859, s. I, cl. 12, must not e
construed as identical with "lands or house '
It comprehends all that would be real proper
according to English law, and possibly m.'.
A toda giras hak being a right to receive an annj
payment, the liability for which is not a ne
personal liability, but one which attaches to e
inamdar into whosesoever hands the village y ?
pass, is " an interest in immoveable propert>"
within the meaning of cl. 12, s. 1, Act XIV of l5).
Futtehsangji Jaswantsangji v. Desai K,"

LIANRAIJI HaKOOMUTRAIJI

13 B L. R. 254 : 10 Bom. M
L. R. IL A. 34:21W. E :8

Overruling decision in Fatesaxgji v. D:u
Kalyanraiji . . 4 Bom. A. C. 9

Hereditary oflB.ce — Immovek

property — Fees paid to hereditary office-hoir.
Tlie clause of the Limitation Act (XTV of 19)
which was applicable to a suit to recover es
payable to the incumbent of an hereditary cce
such as that of a village Joshi was cl. 12, and ot
cl. 16, of s. 1 of that Act. Krishnabhat v. Kab-
hat, 6 Bom. A. 0. 137, followed. The meaig
of the term " immoveable property," as id
with regard to Hindu law, discussed. L-
vantrav alias Tatiaji Bapaji v. Purshcvm
Sidheshvar .... 9 BOIB99

Immoveable to-

perty — Suit for dues of hereditary office. A si to
recover payment of sums claimed by certain peMS
as hereditary officers, and arising out of a grai by
the sovereign proprietor of the territory by ^ich
the possessors thereof were bound to contribv: to
the maintenance of such hereditary officers, he to
fpJl within the fourth section of Bombay Regul
V of 1827, limiting the period of recovery to i
years. Beema Shunker v. Jamasjee Shapqi

2 Moo. 1. A. 23 : 5 W. R. P. C^

4. Suit for sh '■>]

hereditary land set apart for performance of o/
patil. Plaintiff, being entitled by an arrantn
between the members of a family of patils, of ^
he was one, to a third of the emoluments r
office of managing revenue and police patil,
the defendant in possession to recover a thiri • -
portion of the hereditary fields set apart as ijnu'
neration for the performance of the duties offM
office ; and the District Judge on appeal fou?| oi*
claim barred on the ground solely that he haino*
for twelve years been in possession of the oneii™
which he claimed of the service land. Held,'>'^
having regard to s. 4 of Act XI of 1843, the fI"*;
iff's cause of action did not depend on his p-''***
sion within twelve years, but on whether his W j"
officiate as patil, and his right to enjoy the Ifi *"

( 7345 )

DIGEST OF CASES.

( 7346 )

MITATION ACT (XV OF 1811)— contd.
. Schedule 11— contd.
Art. 144— con<cf.

1. IMMOVEABLE PROPERTY— con((Z.
iute, arose more than twelve years before the
11 was brought. Sinde v. Sinde

4 Bom. A. C. 51

Grant by a Hindu sovereign

,c Hindu temple — Immoveable property. The
?t;awa, by a sanad dated 1790, granted to an
m -tor of the plaintiffs, for the support of a Hindu
ei).^, an annual cash allowance of R350 out of
h' antastha sadilvar " and three khandis of rice
>u of the " kherij jamabandi parbhare " to be
e\d from certain raehals and forts mentioned in
h' anad. The allowances were paid till the death
>f :e plaintiff's father on the 26th December 1859,
vb'; the Collector of Thana stopped them. On
h«i3rd December 1870, the plaintiffs sued to
■St -lish their right to the grant and to recover six
/ei ■ arrears oif the allowances. The defendant
•leicd that the suit was barred by the law of
icition. The question for consideration was

' the suit was governed bv cl. 12 or cl. 16

the Limitation Act (XIV of 1859). Held

;knt, J.), that the grant in question was

iture of immoveable property, and that

therefore fell ^vithin the provisions of cl.

1 of the Limitation Act (XIV of ^ 1859).

' he expression " subject of the suit " in the

down by the Privy Council in the Toda

<e (Fatesangji v. Dcsai Kallianrayaji,

/ A. 34), their Lordships intended to in-

t all the facts wliich determine the nature

intiff's claim, and not merely of the allow-

f. and to confine the application of Hindu

■ inse cases in which the " subject of the

!■< such a distinctive Hindu character as

Hindu law and usage can be legitimately

■o determine its quality and nature. It is

I and permanent character of an allowance

'tever source derived, which by Hindu law

I" to rank with immoveables. Here the

>m the object which it had in view, was to

'1 to be one in perpetuity, and the fund out

this perpetual allowance was to be paid

> ed from a permanent source. It had

all the characteristics of permanency and

y which were essential to bring it accord-

lindu law, within the terra " immoveable

' Held (per Melvili., J.), that the allow-

question was not immoveable property,

■ the suit therefore did not come within the

'IS of cl. 12 of s. 1 of the Limitation Act

1859). From a consideration of the judg-

the Privy Council in Fatesangji v. Dcsai

n/aji, L. R. 1 I. A. 34, it would appear

rule which their Lordships intended to lay

this, viz., that, whenever it is possible to

I' terms " immoveable property " and " in-

: Immoveable property" in Act XIV of

' -st be interpreted, on general principles of

LIMITATION ACT (XV OF 1671)— contd.
Schedule II — contd.

Art. 144— conW.

1. IMMOVEABLE PROPERTY— co»?(?.
construction, with reference to the nature of the
thing sued for, and not to the status, race, character,
or religion of the parties to the suit ; but that in
exceptional cases, in which the thing sued for is
of such a special and exceptional character that its
nature cannot be determined without reference to
the special and peculiar law of a particular sect or
class, in such cases, and in such cases only, the law
of such sect or class may properly be referred to as
furnishing a guide to the determination of the
question. The Privy Council has thus laid down
a rule and an exception, and the question in every
case must be whether the rule or the exception
applies. The rule is that the terms " immoveable
property " and " interest in immoveable property "
are to be held to include, not only land and houses,
and such other things as are physically incapable
of being moved, but also such incorporeal heredita-
ments as issue out of, or are connected ■w'ith, im-
moveable property properly so called, and which
therefore savour of the realty, e.g., rights of common,
rights of way, and other profits in alieno solo, rents,
pensions, and annuities secured upon land, — all
these clearly constitute an interest in immoveable
property. Pen.sions and annuities not secured
upon land, houses, or the like, as clearly do not
I constitute such an interest. When a classification
I can thus be made, it ought to be so made without
j reference to the character of the party claiming
j the right. But there may be cases in which the
I test prescribed by the rule fails, or is very difficult
I of application, and then will come in the operation
i of the exception to the rule, and it may become
I the duty of the Court to seek for guidance in some
1 arbitrary definition contained in the religious law
j of the claimant, e.g., in the instance of an hereditary
office in a Hindu community incapable of being held
I by any person not a Hindu. The claim now in
question is a claim to an annuity granted by a
j Hindu sovereign to a Hindu temple. The annuity
: is not made a charge upon land, and it is not there-
I fore, according to general principles of construc-
tion, immoveable property. That being so, it is
I not necessary to go further. Collkctor of Thana
j V. Kelsknanath Govind . I. Ij. R. 5 Bom. 322

Held, by a Full Bench on appeal under the Letters
Patent, that the grant made by the sanad was
" nibandha," and that the subject-matter of the
suit was immoveable property, or an interest in
immoveable propertv, within tlie meaning of the
Limitation Act (XIV of 1859), s. 1, cl. \2 -.—Held,
also, that the Hindu law might be properly resorted

, to for the purpose of determining whether the

I subject-matter of the suit was immoveable property
(i.e., nibandha) within the meaning of the Limit-

\ ation Act (XIV of 1859), s. 1, cl. 12. Assuming
that it was incorrect to apply Hindu law to aseer-

I tain the nature of the grant in question, neverthe-

( 7347 )

DIGEST OF CASES.

( 7348 )

LIMIT ATION ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 14:4:— contd.

1. IMMOVEABLE PROPERTY— conW.
less held that the grant was an interest in immove-
able property within the meaning of the Limitation
Act (XIV of 1859), s. 1, el. 12. The grant savoured
throughout of locahty, and was undoubtedly irre-
sumable, inaUenable, and perpetual. The Indian
Legislature did not intend to exclude such property
from s. 1, cl. 12, of the Act. The Indian Legisla-
ture, which passed the Limitation Act (XIV of
1859), has not given any explanation or definition
in the Act of the phrase " immoveable property, "
but has left suitors to their former ideas on the
subject. Under these circumstances, it would be a
hardship upon them to construe the Act inconsis-
tently with such ideas, inasmuch as they were fur-
nished with no guide which could have led them to
s'lppose that " immoveable property, " according
to Act XIV of 1859, meant anything less than
what they had previously known as such. And
that the Indian Legislature were not disposed to be
very harsh, is shown by its subsequent more fully
developed legislation on the subject of limitation,
which to haks and other periodical payments
assigns the twelve years' limit. A pension or other
periodical payment or allowance granted in per-
manence is nibandha, whether secured on land or
not. Collector of Thana v. Hari Sitaram

I. L. R. 6 Bom. 546

i — Claim to easement
— Immoveable property. A claim to an easement
is one relating to an interest in land and is
governed by the limitation of twelve years. Deo
SuRUK PooRY V. Mahomed Ismail

24 W. R. 300

7. ■ Jalkar — Immoveable property —

Jalkar, suit to estaUish. A jalkar is not an ease-
ment within the meaning of s. 27 of Act IX of
1871, but is an interest in immoveable property
within the meaning of Sch. II, Art. 145 of that Act.
Where the defendant had been exercising a right of
fishing in certain water adversely to the plaintiff
for more than twelve years : — Held, that a suit by
the plaintiff for a declaration that he was entitled
to the exclusive right of fishing in such water was
barred by Umitation. Parbtjtty Nath Roy
Chowdhry v. Mudho Paroe

I. li. R. 3 Cale. 276 : 1 C. L. R. 592

Suit for opening

waUr Course stopped by defendant — Interest in im-
more'tblf property. A su t for recovery of posses-
sion of land and for opening a water-course through
it, alleged to have been stopped by the defendant,
is a suit " for an interest in immoveable property,"
and therefore subject to the limitation prescribed
by cl. 12, s. 1. Oodayessurree v. Htjrokishore

DuTT 4 W. R. 107

Suit for a declaration of pro

LIMITATION ACT (XV OF 1877)— cow

Schedule II — contd.
, Art. 144 — contd.

1. IMMOVEABLE I ROPERTY— ronW.
able property. Where the plaintiff claimed ale
claration of his proprietary right to land, and t be
maintained in possession thereof as propror
free from the liability to pay rent : — Held, thalae
limitation applicable to the present suit wasot
that provided by Art. 118 of Sch. II of Act I of
1871, but that provided by Art. 145 of at
Schedule, a suit by a person in the possessi of
land for a declaiation of proprietary right lag
substantially a siut for possession of immovijle
property, and the present suit was therefore w Jn
time; and that Arts. 14 and 15 of that Schile
were not appHcable, there being no decree or ilot
which the plaintiff was bound to have set de
•«-ithin one year. Debi Prasad v. Jafer Alj
I. L. R. 3 Alio

{Contra) Legge v. Rambaran Singh

I. L. R. 20 A135

10. Suit claiming exemjon

from payment of assessment on land £«r
payment. Where a person claiming to M.
land free of Government assessment was 'in-
pelled by the Collector to pay the same-nd
afterwards brought his suit to establish his iJt:
— Held, that the suit was one to recover an ine«t
in immoveable property, and the cause of ; ion
first arose when the right was actually inte.red
^vith by the Collector compeUing payment o tho
rent ; and that, as the suit was brought "
twelve years from that date, it was not i
btit that only one year's arrears was recoi
under Act XIV oE 1859, s. 1, cl. 4. Bhi '
Mahader v. Collector of Belgaum 11 Bor 1

11. Suit recover share of e ite

— Agreement defining shares of parties in in
able property — Deed of compromise. An agi'
by way of compromise of disputed t-:
immoveable estate, under which shai
allotted to the parties thereto, gives to eaf '
a cause of action founded not merely up"i
tract within the meaning of Act XIV i"
s. 1, cl. 10, but upon the title which is i
ledged and defined by the agreement ; an
brought to recover a share of the est;i'
governed by s. 1, cl. 12. Mewa K<
Hulas Kowar . . . 13 B. L. 1
L. R. 1 1.

12. Agreement to lease— .^

agreement to lease land. An agreement to e'"**
lease cannot be said to create an intert ^
immoveable property, nor can a suit upon
said to be one for the recovery of such p
or of an interest in it. Such a suit was go\
not bv the 12th. but by the 16th clause o '•
Act XIV of 1859. Lalla Ram Sahoy L '^ *i
Chowbaik .... 22 W. 1^8'

13.

Trees- Interest in imm-'

ioblt

prietary right — Suit for possession of immove- 1 property. Trees are immoveable propert a"

( 7349 )

DIGEST OF CASES.

7350 )

:, riTATION" ACT (XV OF 1817)- contd.
Schedule II— contd.

Art. 144 — conid.

!l. IMMOVEABLE PROPERTY— ccw/r/.
i iiim in connection with them relates to an
nf est in such property, and was subject to the
in ation specified in s. 1, cl. 12, of Act XIV ot
Ghufooktjn Bebee v. Mustukedeh

2 Agra 300

. and s. 26 — Suit to recover pos-

,' of mango trees — Adverse possession for twelve
hy taking fruit — Ea-iement. The plaintiff
- brought a suit to recover possession of
•IS growing on his own land, and the lower
ving found that the defendant had, during
' years preceding the suit, adverse possession
king the fruit thereof: — fl^eZc?, that the claim
;or possession of an interest in immoveable
■rty and was governed by the hmitation of
e years prescribed by Art. 144 of the Limit-
Act XV of 1877. Bapu v. Dhondi

I. L. R. 16 Bom. 353

1 Growing tree —

>i(i' or fossession of tree standing on land sold to

rilaiiiff. A tree standing on land is immoveable

I) rtv. A suit lor a tree standing on the land is

' therefore by the twelve years' limitation

L. 144 of the Limitation Act. Sakharam

1 ilHADIK V. VlSHRAM

I. L,. R. 19 Bom. 207

- Suit to set aside

.11. ah reUiting to produce of trees — Interest in

• '.'Ae properti/. The plaintiff executed a deed

: 1 village in favour of his sons and nephews,

ndition that they should not alienate the

On their hypothecating it, the deed of

-rt aside in a suit by the plaintiff. One of

! iff's rights as proprietor was to receive

iM' produce of a certain grove, which right,

deed was in force, the donees had agreed,

Miiamah with the defendant, to commute for

'ont. The plaintiff sued to set aside the

ah and to recover hah of the value of two

- h the plaintiff had cut down and appro-

Hfld, that, as the suit was not for the re-

! rights and interests in immoveable pro-

'.vhich cl. 12, but to set aside a solehnamah,

< 1. IfJ, of s. 1 of Act XIV of IHnO appUed,

iimages, the suit to set aside the sole-

;i.s barred by limitation under cl. IG.

\X PeRSHAD v. SURUHJEET SlNGH

4 N. W. 167

Mortgage of house " exclu-
a.nd"— Interest in immoveable properti/.
hereby "the supersti-ucture of a house
of the land beneath " is hypothecated
imterestin immoveable property within
1^ of the Limitation Act, the apparent
being to mortgage the existing house
i;^orely the materials. Narayaxa Pillay

- AWMY THAVT7THARAN . 8 Mad. 100

LIMITATION ACT (XV OP 1877)— conW.

Schedule 11— conU.
Art. 14:4:~ront>J

1. IMMOVEABLE FROPERTY-cow<^/.

18.

Immoveable and moveable

property. In the year 1857 A died, cleaving a
son, the plaintiff B, and the defendants C and D,
his widows, him surviving. C took possession of
all ^'5 property. The plaintiff B was the son of
D, and, shortly after A's death, D gave birth tO'
another son, the plaintiff E. In 1S65 D instituted
a suit against C and B and E, alleging that A
had loft a wUl. In this suit C claimed to be the
heiress of /I. No decree was made in the suit,
which was compromised. In November 1877 B
and E entered into possession of a shop which had
belonged to their father, and which had been
managed, during their minority, by the defendant
C. In 1879 the plaintiffs instituted the present
suit, claiming to recover from O the property of A
come to her hands : — Hell, that, so far as the im-
moveable property was concerned, the case fell
either under Art 120 or Art. 144 of Act XV of
1877, Sch. II ; and as to the moveable property,
under Art. 89 or 90 of the same Act. Kally
Churx Shaw v. Dxjkee Biber

I. L. R. 5 Calc. 692 : 5 C. L. R. 505

19.

Saranjam — Right to possession

and management of saranjam. The right to posses-
sion and management of a saranjam is an interest
in immoveable property Mithin the meaning of
Art. 144 of Sch. II of the Limitation Act XV of
1877 : and where the defendant had enjoyed
that interest since 186G, at which date the plaint-
iff; who had been in correspondence with Gov-
ernment with reference to his claim against the
defendant, was referred by Government to the
Civil Courts, the plaintifi's claim was, in a suit
brought in 1885, held to be barred by limitation.
Nar.\yan Jagannath Dikshit v. Vasudev Vishnu
DiKSHiT . . . I. L. R. 15 Bom. 247

20. Emoluments of hereditary

office — Interest in immovenhle property. A suit,
to recover a sum of money due by custom as an
emolument of an heieditary office is not one for
the possession of an interest in immoveable pro-
perty. In 1888 a sum of money became payable,
as marriage dues, to the holder of certain offices
connected with a temple. Upon a suit being
brought more than six years thereafter, namely in
1895, to recover the amount, it was objected that
the claim was barred by limitation : — Held, that
such a claim is governed, not by Art. 144, but by
Art. 120 of Sch, II to the Limitation Act, and must,,
in consequence, be enforced within six years of
the accrual of the right. Rathna JIudaijar v.
Tiruvenkata Chariab . I. L. R. 22 Mad. 351

21. -- Right of purchaser to

have lands registered in his name— .Va/Mre
of .such right — Cause of action in re-^pect of such
right — Suit for declaration of such right — Vendor
and purchaser — Limitation Act, Sch. II, Art. 12fi.

( 7351 )

XIMITATION ACT (XV OF 1877)-
Schedule II — contd.

DIGEST OP CASES.

( 7352 \

contd.

Art. 144 — contd.

1. IMMOVEABLE PROPERTY— cowcW.

PlaintifEs, having purchased certain lands in 1867,
brought this suit in the year 1890 to obtain a de-
claration of their right to have the land registered
in their name in the revenue records. The lower
Courts dismissed the suit as barred xmder Art. 144,
:Sch. II, of the Limitation Act (XV of 1877) -.—Held,
reversing the decree, that a right to be placed on
the register was not an interest in immoveable
property, and that Art. 144 of the Limitation Act
did not apply. The right is one which does not
give rise to a cause of action until it is asserted or
denied, and a suit for a declaratory decree in
respect to it must be brought within a period of six
years from that date. In the present case the right
had not been asserted or denied until the suit was
filed, and the suit was therefore not barred.
Bhikaji Baji v. Pandtj . I. L. B. 19 Bom. 43

22.

Right of adopted son to

claim property alienated — Widoivs estate-
Alienation hi) widow — Subsequent adoption— Limita-
tion. Where a Hindu widow alienates part of
the immoveable property belonging to her hus-
band's estate, and then adopts a son, the son
. cannot sue to recover possession of the property
until the termination of her widowhood- Where
such a suit is brought during the widowhood, it
is governed by Art. 144 of Sch. II to the Limit-
ation Act, and the starting point for the period of
Limitation is the date of the adoption. Sree-
KAMtJLU V. Kjiistamma (1902)

I. li. K. 26 Mad. 143

Arthamulgeni lease — Suit

for possession under an arthamulgeni lease governed
by Art. 144. A suit to recover possession of land
leased under an arthamidgeni lease is not based
on the contract to deliver possession contained
in the lease deed, but on the completed title to
possession acquired under the lease. The period of
limitation applicable to such a suit is that pro-
vided in Art. 144 of Sch. II of the Limitation

Act. MOGERA NaNDI V. pARAMESWARA UdPA

(1907) • . . . I. Ii. R. 31 Mad. 51

2. ADVERSE POSSESSION.

Application of the

Article. Art. 144 of Sch. II of Act XV of 1877, as to
adverse possession, only gives the rules of limitation
where there is no other Article in the Schedule
specially providing for the case. Mahammud
Amantlla Khan v. Badan Singh

I. L. E. 17 Gale. 137
L. R. 16 I. A. 148

2. . Onus probandi.

Under Art. 144 of the Limitation Act (XV of 1877)
it is not for the plaintiff to prove that he has been
In possession within twelve years before suit, but it

LIMITATION ACT (XV OF 1877)- „<

Schedule 11— contd.

Art. 144 — Contd.

2. ADVERSE POSSESSION— cowJrf.

is for the defendant to show that he nashe
adversely to the plaintiff for twelve years, -i:
TULA V. Nana valad Faridsha

I. L. R. 13 Bonas

3. Adverse 'm

sion. A, B, and C were brothers. In IPJ*
1847, a partition was effected between /'^
deceased) and C on the one part and B on th(|i(
C being at the time a minor. B then oij.nc
and since held separately as his share, cer'

in the village of K among others. By a
in 1852 the same quantity of land was -
to him as his share. In 1855 certain p;
were taken, the object of which was to a
shares so as to make them equal in quali'
as in quantity, B continuing to hold i.
same quantity of land as he did before. (
his majority in 1854, and in December 186 ,
a suit against B for a re-adjustmeat oi.
tion completed in 1847, so far as it respec;
held by B in the village of K :—Hd(L
possession was adverse from 1847, and the ■
ment in 1855 could not give the plain-
starting point; the suit therefore was 1
limitation. Srinivassiengar v. Sriniva-^
Chariyar . . . . , 4 Ivl

4. Adverse

sion. The political department in Chota
as judgment-creditors took out attachmei:
a family estate, in which the rule of prim
prevailed, to meet ancestral debts, ai.
priated the proceeds in satisfaction. '
was made by a member of the family claw
of the villages as held by him and his
under a mokurari grant for maintena:
answer was put in and litigation followed,
in a final decision by the civil authoriti'
ziUah that the claimant was not entitle^!
out of the villages claimed, and the procv
diverted to the payment of debts which
his. He then sued for a declaration of ^
and title to the four ^ illages -.—Held, that ti
sion of the political department had i
adverse to the plaintiff, and his cause of a
not arise till his title was devised and tht
diverted from his use. Court of ^"^^-^^^
waree Lall Thakoor . • 15 W.

5. . - Suit for

sion of land — Collector's possession not "^
true oimier. Act IX of 1871, Sch. II, -^
enacting that suits for possession of im'i
property, or any interest therein, must be
within twelve years from the time when tlv
sion of the defendant, or some person
whom he claims, has become adverse to tlv,

iff, differs from the rule formerly in fore*'-^
Act XIV of 1859, s. 1, cl. 12. The latter w ^

( 7353 J

DIGEST OF CASES.

{ 7354 J

I TATION ACT (XV OF 1877)— corUd.
I Schedule II — contd.

J Art. 14.4r— contd.

2. ADVERSE POSSESSION— co»<i.

• f t must be brought within twelve years from

■ tie when the cause of action arose ; and thus

I flaicr rule that, where the cause of action arose

jt^ii alleged dispossession, the burden was upon

: Jintiff to show that he, or some one through

01 he claimed, had actual possession within

•11 years before the institution of the suit, has

-n ijKM'seded by the above. Where the Govern-

n'' •^ the Revenue Department, has taken pos-

land, it is the duty of the Collector,

'lit uf the revenue and the expenses of

.11, to pay over the surplus proceeds of

ale to the true owner. The Collector's

ion does not become adverse to the owner

ion of his making this payment to another

inlit. Karan Singh v. Bakar Ali Kha\

I. L. B. 5 All. I
li. R. 9 I. A. 99

Adverse posses-

[ttachment of vatan lands — Peshiva's
ve nent — Besumption by British Government —
rfo 'ion — Inability to sue during attachment and
vki ion — Bom. Act I of lS6o, s. 34 — " Contra
It ntemagere nulla currit jyrcescriptio,'' applica-
%i In the year 1806-07 the Pcshwas attached
nia.i\ lands belonging to the plaintiff's
' lie attachment continued till the year
1 the British Government made them
resumed them. The defendant in the
entered upon them as tenant to the
t and paid assessment thereon. In the
lie lands were ordered to be restored to
;!s. After this order of restoration, the
iiught a suit against their co-parceners
!i and obtained a decree. In the execu-
- decree they were obstructed by the
. \\lio claimed the lands as his own. The
'. Hereupon brought a suit against the de-
1 1881 to eject the defendant and to
-'■ssion of the lands. The Court of Ikst
d the plaintiffs entitled merely to such
as might remain after payment of judi
i I'ut. It further held that the defend-
sion had become adverse to the plaint-
' latter did not bring their suit within
• > from the resumption of the lands by
! in 186G, since which time the defendant
'>nsidered as tenant or occupant under
I. From this decree the jilaintiffs
id the lower appellate Court was of
' by the order of restoration the plaint-
-'.ored to the right of such assessment
after deduction of judi, and that their
it even was barred, as it was brought
1 years from the date of resumption.
•<) the High Court : — Held, restoring the
«• Court of first instance, that the claim
lUffs was not barred. After the attach-
lands in dispute, the Peshwa's Govern-

LIMITATION ACT (XV OF 1877)— contd.

Schedule 11— contd.
. Art. 14:4r— contd.

2. ADVERSE POSSESSION— co»<<Z.

ment held the same as constructive trustees for
the plaintiffs, and when that Government was suc-
ceeded by the British Government, the same
relation continued. The British Government,
having succeeded to the trust, — continued to hold
as trustee for the family of the plaintiffs ; their
possession therefore could not be made adverse by
intimation or notice to the plaintiffs. It was not
found that the defendant held the lands before the
attachment by the Peshwas, and the British Gov-
ernment could not, as guardian or bailiff for the
real owners, the plaintiffs, put the defendant into a
better position than their own. The plaintiffs'
right, having never been extinguished, had the
same legal force in 1870, when the lands were re-
stored, as it had before attachment in 1806. From
1871 onwards the plaintiffs could act ; and as the
suit was commenced within the term computed
from that time, it was not barred — the inabihty
of the plaintiffs to sue before 1871 falling \vithin the
purview of the maxim contra non valentem agere
nulla currit prcescriptio. It was contended for the
defendant that s. 34 of Bombay Act I of 1865
apphed in the present case : — Held, that, if it could
apply, it would apply only in the sense of limiting
the rights acquired under the Collector's manage-
ment to the term of that management, and
nothing further. Tukabam v. Su.iaxgir Guru

I. Ii. K. 8 Bom. 585

7. . and Art. 142 and s. 28—

Decree obtained — Decree restoring posse-ision to tres-
passer against dispossession by another trespasser,
effect of — Illegal dispossession by the trice owner.
The plaintiffs were in possession without title from
14th June 1870 to 19th September 1873 ; they were
.then dispossessed by a third person, but recovered
possession by a decree ajainst him in December
1880 and thereafter remained in possession till 14th
September 1888, when they were ousted by the
principal defendants. Thus, the plaintiffs' posses-
sion not aggregating to twelve years, it was con-
tended on their behalf that the decree above-
mentioned restoring them to possession did away
with the effect of dispossession, so as to com-
plete their title by adverse possession : — Hehl, that
the possession of one trespasser could not be added
on to that of another, and that tiie effect of the
decree did not affect the position of the true owner.
Qucere : Whether Art. 142 or Art. 144 of the
Limitation Act applied to the case, and on this
question depended the further question whether
the principal defendants' right had been extin-
guished under s. 28 of the Limitation Act. and
therefore their dispossession of pLiintiff s was illegal.
GuBoo Churn Dott v. Krishna Moxi GrpTA

2 C. W. N. 315

Adverse posses-

sicm. A became a bairagi and went on a pilgrimage.

( 7355 )

DIGEST OF CASES.

( 7356 )

I.IMITATION ACT (XV OF 1817)— co7itd.

Schedule 11— contd.
Art. 14:4:— contd.

2. ADVERSE POSSESSION— coftic^.

He alleged that before his departure he made
over his property to B, on the condition that it
.should revert to him on his return. B sold it to C.
Upon his return after several years, A claimed the
property from C, who refused to give up possession.
D purchased A's rights, and then sued the widow of
iC to obtain possession. She denied that
the property was made over to B upon trust for
A on his return, and contended that the suit was
barred under cl. 12 of s. 1 of Act XIV of 1859.
The lower Appellate Court held that it was not
barred en the ground that B's possession was not
adverse. On special appeal, the case was remanded
that it might be found whether B had been in
possession in trust for A, or adversely to him, for
more than twelve years. Jagannath Pal v.

BlDYA^^AND

1 B. L. R. A. C. 114 : 10 W. R. 172

9. . ■ Suit for posses-
sion— Interrupted adverse possession. In a suit to
recover possession of immoveable property, the
■defence was adverse possession for more than

twelve years, except for two short periods during
which plaintiffs had been put in possession by a
Civil Court ; first, under a decree of the High Court
between the same parties, but that they had been
■dispossessed upon that decree being reversed on
review ; and second, under a misconception, by the
Principal Sudder Ameen, of another order of the
High Court in another suit between the same
parties ; but that they had again been dispossessed
after appeal by defendant to the High Court :
— Held, per 1,001, J. (Glover, J., dissenting), that
plaintiff's possession during those two periods was
not bond fide, and that the suit was barred. Mati
SiXGH V. LiLANAKD SiNGH . 2 B. L. R. A. C. 173

s.c. MoTEE Singh v. Leelanand Sixgh

11 W. R. 49

10.

Temporary in-

terruption of possession — Wrongful possession given
by Court to a third person — Restoration of j)ossession
to defendant — Continuous adverse possession. In a
suit brought to recover possession of certain land
the defendant pleaded limitation. He had held
possession of tlie land adversely to the plaintiff
from 1881 up to the date of suit (2nd October 1895),
with the exception of a period of three years (viz.,
4th April 1892 to 9th April 1895), during which he
was dispossessed under a decree of a Civil Court
of first instance obtained against him by a third
person, which being reversed in appeal he was re-
stored to possession on the said 9th April 1895 :
— Held, that the present suit was barred by limit-
ation. The wrongful possession given by the Court
to a third person did not (after possession had been
i«stored to the defendant) prevent the statute from

LIMIT ATION ACT (XV OP 1877)-

Schedule II — contd.
Art. 144— contd.

2. ADVERSE POSSESSION— co»«(Z .

running during its continuance against the pi i

and in favour of the defendant. Dagdf v. .

I. L. R. 22 Bon"!

. "■• ' ■ Adverse s

sion — Admission of lambardar to partition, fa
the lambardar had clearly admitted in the ij
ul-arz that there were shareholders payirl ;
Government revenue through him, who cultii
sir land, although at the time? he, the lam! d
has had sole right to the profit and loss : — He tl
the claim of the shareholders to definition oh
shares was not lost. Mehtab Singh v. Pura
3 Agr2
12. — Adverse ss

sion — Insolvency. Suit by the Official
a deceased insolvent to recover a talukh coi3v
(several years before his insolvency) by thensi
vent, who was sole or chief acting executor ' 1
father-in-law's will, as a security for his owJe
to his father-in-law, not to any other pera
trust for the benefit of any parties who mi 1 1
entitled to the estate, but to the insolvent' «{
who was the tenant for life of the residue -.-'id
that, in the absence of any proof of frau tl
widow's continuous and adverse possessi' f(
more than twelve years barred the suit. Cocia-N

V. HUKEOSOONDERY DeBIA. !

4 W. R. p. C. 103 : 6 Moo. I. M9

13.

Advert-

sion — Joint entry of names. In a suit by a
widow for a declaration of right and title t-
mutter land of which she asserted she had
been in possession, but which defendant !
registered in his own name as well as in li
claimed to have been in possession of
father since the death of the husband : — /i
the entry of plaintiff's name conjointly with
ant's was a declaration of at least joint tr
as nullified a plea of bar by limitation by ■ > —
possession. Deepq Debia v. Gobindo DeI|

16W.I-4S

14.

Suit by V

share on joartition of husband's estate — Adr
session. In a partition suit by a widoAi
recovery of her husband's share of pro pert
during his lifetime jointly with his brother, a
such suit be brought more than twelve yea
her husband's death, her claim is not barred
statute of limitations, unless the brother b.
period of twelve years before suit held advi
her. &STOMONI Chowdhry v. Sibci
Chowdhry . Marsh. 196 : 1 Ha

15.

Adverse

sion. A Hindu of Tirhoot died in 1849,
two widows and a brother. A comprom
made by the three, whereby they agreed 1 1 ^''
brother should remain in possession of the pP*"^/

( 7357 )

DIGEST OF CASES.

( 7368 )

J IITATION ACT (XV OF 1871)— conld.

Schedule II — contd.

Art. 14^4^contd.

2. ADVERSE POSSESSION— con«d.

ofiiV the deceased, and that some land should be

.8i|ned to the widows for maintenance. The

Icj widow died in 1867, and the younger sued the

le of the brother for recovery of possession of

fai'iroperty. The defence set up was that the

li'vns barred by limitation, as her cause of action

1 (lU the death of her co-widow, but on the

lier husband : — Held, that, as to recovery

11)11 of a moiety of the property, the cause

arose on the death of the co-widow ; that

->ion of the elder widow was not adverse

linger widow, as the elder widow was per-

' enjoy the possession of the husband's

during her lifetime, the younger widow

an allowance from the profits of the estate.

-I KUNWAR V. Geibhirun Kuxwar

3 B. L. R. A. C. 289

Udoobaxsee Koer v. Girbhirun Koer

12 W. R. 158

Hindu widow-

xon — Possession. A Hindu died after
irections to his widow to adopt a son.
lartition of the joint property amongst
rrs and widow, a certain property was
. his widow as her share of the joint pro-
ifterwards in 1849 his brothers dis-

thc widow. In 1854 she adopted a son,

n- d his majority in 1865, and in 1866

rlir present suit for possession of the

. -//' /'/, that the suit was barred by lapse

< ioLUND Chandra Sarma Mazoomdar v.
Iahan Sakma Mazoomdar

2B L. B. A. C. 313

Two sisters, B

■t being heirs, took possession of ancestral

as heirs on the death of their mother H.

■w years they quarrelled. P adopted a

• xecuted a deed of gift in his favour. B

'lie whole property through her deceased

as heir of B ^I, who again was heir of the

imclc, on whose death H had succeeded : —

t, in the absence of any agreement creating

ite in favour of the two sisters, the cause

i ')f the collateral heirs arose from the time

larrelled with her sister and adopted a son.

OHTTR Ghose v. Tartsee Chukx Sixgii

3 W. B. 195

lA SOOXDERY DOSSEA V. TaRINKE CuUUX

3 W. B. 194

Impartible

I — Succession — Adverse possession by one
' iamihj. Upon the death of G in 1829,
tible zamindari of Sivaganga, which had
urcd by hini, was taken possession of by
cntative of his elder brother 0, from whom
uvered by K, the daughter of G, in 1863
From that date until her death in 1877,

LIMITATION ACT (XV OF IQll)— contd.

Schedule 11— could.

Art. 14^4, —contd.

2. ADVERSE POSSESSION— con/i.

the estate remained in the possession of K. It
was subsequently recovered by suit from her sons
by the defendant (the son of her elder sister^, as
being the eldest surviving grandson of G. The
plaintiff, alleging that he was the third son of N,
who was the second son of G by his wife M, and
that he, and not the defendant, was the eldest
surviving grandson of G, sued in 1881 to recovec
the estate from the defendant. Admitting that he
was born in the lifetime of G, the plaintiff pleaded
that it was not open to him to sue for the estate
until the year 1870, when hi-s father, his elder
brothers, and a son of his father's elder brother had
all died -.—Held, that from 1829 limitation began
and continued to run against the descendants of

M. VlJAYAS.AMI V. PeRIASAMI

I. L. B. 7 Mad. 242

19. Hindu law —

Widow. The holder of an impartible zamindari
died in 1822, leaving two widows and a daughter.
The widows entered on the estate, and having
successfully resisted a suit for ejectment brought
by the rightful heir (the present plaintiff's great-
grandfather) in 1824, they and the survivor of
them retained possession tiU 1870, when the last
surviving widow died, and the daughter entered.
She, or the Court of ^Vard3 on her behalf, retained
possession till her death in 1882, when the first
defendant came in as the nearest then surviving
sapinda of the last male holder. The plaintiff, who
was the son of the elder undivided brother
(deceased) of the first defendant, now sued in 1891
to recover the zamindari from him : — Held, follow-
ing Vijayasami v. Peri.sami, I. L. R. 7 Mad. 242,
that the suit was barred by hmitation. Koolappa
Naik v. Koolappa Naik . I. L. E. 17 Mad. 34

20.

Widow in ,

sion of estate for dower — Suit by heirs for possession
— Adverse possession. If a Mahomedan widow,
without the consent of the heirs, takes possession
of her husband's estate in satisfaction of her dower,
and continues to hold it tor forty years, the heirs of
her husband cannot intervene : and th -ir claim
must be brought within twelve years, unless they
prove that the possession of the widow a^s to their
shares was permissive of fiduciary possession.
OoMRAO Begu-m v. Ha.mid Jax . 3 Agra 279
21. ^ '■ Suit for posses-
sion of jungle lands — Evidence of ownership. In a
suit for possession o£ jungle lands, where there is
no proof of acts of ownership having been exercised
on either side, possession must be presumed to
have continued with the person to whom they
rightfully belong. A suit therefore held not to be
barred even if plaintiffs failed to prove any acts of
ownership, unless the defendants made out a case
of twelve years' adverse possession. Leelanund
SiKQH V. Basheeroonissa . 16 W. R. 102

( 7359 )

DIGEST OF CASES.

( 7360 )

LIMITATION- ACT (XV OF 1877)-

Schedule 11— contd.
Art. 14:^— contd.

7ontd.

2. ADVERSE POSSESSION— cow<c?.
See SuNNUD Ali v. Kurimoonissa.

9 W. R. 124

MoocHEE Ram Majhee v. Bissambhur Roy
Chowdhry . . . . 24 W. B. 410

22. Possession of

ijaradar — Effect of dispossession on zamindar. The
zamindar or owner is bound by the dispossession
suffered by his ijaradar. Brindabun Chtjnder
Sircar Chowdhry v. Bhoopal Chunder Biswas
17 W R. 377

23. Landlord and

tenant — Suit by occupancy -raiyat for recovery of his
holding — Ouster, not by landlord — Twelve years'
limitation,. A suit brought by an occupancy-raiyat
to recover possession of his holding in which the
landlord is no party, and there is nothing on the
record to show that the landlord had any hand in
the ouster of the plaintiff, is governed by twelve
years' hmitation, though the defendant might
claim to hold under the same landlord. Eradut v.
Daloo Sheikh . . . 1 C. W N. 573

24. Confirmation of

title — Cau^se of action. The plaintiff sued for con-
firmation of his title to, and for possession of, a
jote in the Nowabad mehal deriving his title under
a pottah from the ijaradar. The defendant's case
was that he had bought the lands as a talukh, and
been in possession accordingly ; but finding that
the lands had been surveyed as a part of the Nowa-
bad mehal, he took a pottah from the ijaradar four
years previous to the plaintiff's pottah. The
defendant's pottah was found to be a forgery ; —
Held, that the plaintiff's cause of action arose solely
from the title set up by the defendant under the
pottah derived from the ijaradar, and not from the
date when the defendant purchased the lands as a
talukh. Shahaboodeen v. Naduroojuma

12 W R. 44

25. . Lessee under

Government. A claimed certain immoveable pro-
perty as lessee under a Government settlement
made in 1859. B had been in possession for more
than twelve years before the institution of the suit :
— Held, that the suit was barred under cl. 12 of s.l.
Asu Mia v. Raju Mia

1 B. L R. A. C. 34 : 10 W. R. 76

26. Adverse posses-
sion— Suit for ejectment by a jenmi — Defendant in
possession under Government cowle. The plaintiffs
sued for possession of land which was found to be
their jenm. It appeared that the defendant had
been in possession for more than twelve years
under a cowle from Government, which provided
that the grant of the cowle should not affect the
jenmi's right, but that the defendant had never
recognized the plaintiff's title : — Held, that the suit
was barred by hmitation. MuNiArPAN Chetti v.
MuppiL Nayar . . I. L. B. 21 Mad. 169

LIMITATION" ACT (XV OF 1877)— cot;
Schedule ll~contd.

Art. 144 — contd.

2. ADVERSE POSSESSION— conirf.

27.

and Arts. 113 and 1 -

Agreement to occupy for a term — Permissive oci-k
tio/i — Expiration of term — Suit for posse.%
Plaintiffs sued in September 1893 to recover pcei
sion of a certain house from the defendants, rtn
their claim on a certain document, dated thJr
May 1880, executed by the defendants' fath J
to the plaintiffs' father K. In this documei J
admitted that the house belonged to K an(!rc
mised to vacate it at the end of two years frc th
date of execution. The document being preste
for registration on tlie 18th May 1880, M die
its execution, but after inquiry the District Igis
trar ordered it to be registered. The lower m
dismissed the suit as barred by hmitation (he
by Art. 113 or Art. 144 of the Limitation AetT
oi 1877) : — Held, reversing the decree and re:u(l
ing the case, that the suit was not barred. T! th
agreement tiie tenancy or permissive occa :ioi
was to end on 3rd May 1882. Lither unde Irt
139 or 144 the plaintiff had twelve years froa: ha
date within which to sue. Shivrudrappa I(sa
nappa v. Balappa . I. L. R, 23 BomSSJ

28.

Landlord <

terant — Suit for possession — Cavse of actim'
plaintiff stated that in the year 1802 he p'
a talukh in which some of the defendai
held an ijara for a term of years expiring i
The talukh had previously been a khas m
the possession of the Government, and was
by the plaintiff at an auction-sale hell
Collector. The plaintiff also stated that i
dar defendants, in collusion with thr
defendants, had continued in possession of tL
held in ijara after the term of the ijara had '
and had refused to give up possession tb< i
the plaintiff. The .Judge of the lower A)
Court found that the defendants (other ii
ijaradars) had been in possession previous!'
sale in 1802, and he also found that there
evidence to support the charge of collusion
ijaradar defendants. He therefore dismi-
suit (which was brought in 1880) on the u
limitation: — Held, on second appeal, tl
plaintiff's cause of action arose on the expii
the ijara, and that the suit, whether gov'
Art. 139, or 144 of the Limitation Act (XV
was not barred on the ground of lim
Woomesh Chunder Goopto v. Eaj Narain J
W. R. 15, cited. Krishna Gobind Dhue
Churn Dhur

I. L. R. 9 Calc. 367 : 12 C. I
29 - Landloi

tenant — Notice by tenant claiming to hold ui^
petual lease. The possession of a tenant f'
not rendered adverse within the meanini:
XV of 1877 by a notice from the tenant

( 7361 )

DIGEST OF CASES.

( 7362 )

LillTATION ACT (XV OP 1877)— contd.
Schedule II — coiitd.

Art. l4:4:—contd.

2. ADVERSE POSSESSION— con^cZ.
1j,q8 to be holding on a perpetual or hercrUtary
w. Beni Pekshad Koeri v. Dudhnath Roy
I. L. R. 27 Calc. 156
4 C. W. N. 274

'{ Landlord and ten-

1^- Adverse fossession— Trespasser. A defcnd-

las a right to set up the plea of tenancy and

e same time to rtly on the statute of limit-

'. The plaintiff sued to recover possession of

1 . land. The defendant pleaded that it was

'• ' ■■' in a permanent lease granted to him in

he plaintiff's predecessor in title, and that

..as barred by the law of hmitation. It

.ml that the hearing that the land was not

■ 1 in the lease. It appeared that there were

S - s between the parties about the land since

o each asserting his own right to it. It was

n idcd for the plaintiff that, inasmuch as the

\< iiiht had claimed the land as a tenant, his

'1 was not adverse under Art. 144 of the

I Act (XV of lSll):—Held, that, under

nstances, the defendant's possession was

The defendant was a trespasser, setting

nded tenancy which the plaintiff denied

r. The case therefore was to be regarded

:nst a trespasser, and not as one between

nd tenant. Dinomony Dahea v. Doorga

zoomdar, 12 B. L. R. 274, foUowed ; and

(ncra Kvmari v. Bengal Coal Company,

'. 2S2 note, distinguished. Maidin Saiba

. I. li. R. 7 Bom. 96

— Amtbhavotn

■rjeiture by alienation — Landlord and
.mds in Malabar were demised on anu-
lure. Some of them were alienated by
t, but the landlord subsequently accepted
10 than twelve years after the alienation,
id sued to eject the tenant on the ground
' Qure was thereby forfeited. The tenant
>t time in his written statement denied
' d's title : — Held, that the cause of action
^ the plaint was barred by limitation,
V. Athi Na^-giyar

I. L, R. 15 Mad. 123

Landlord and

■ rpetuaV lease — Surrender of lease. The
'f a JIalabar kovilagom executed a kui-
f of certain land, the jenm of the kovila-
!•;, and in 1861 his successor demised the
to the same tenants in perpetuity. The
rnavan sued in 1889 to recover posses-
land : — Held, that the perpetual lease, as
a improvident character, was ultra tire-;
that the original lease was not surren-

• ■ ison of the acceptance of the subsequent
t- the suit was not barred by limitation,

"ion of the defendants never having been

»L, III.

lilMITATION ACT (XV OF 1877)— conW.

Schedule II— conW.
- Art. 144 — contd.

2. ADVERSE POSSESSION— co»<^/.
adverse to the plaintiff's kovilagom, RAMTi;?ia v.
Keeala Vaema Valia Raja

I. li. R. 15 Mad.

33.

166

— — Land in posses-

sion of tenant — Relinquishment — Cav.'se of action.
Plaintiffs brought a suit for recovery of possession
of land which was in the possession of his tenants
when first act of dispossession occurred, and these
tenants did not relinquish their tenures until the
year 1295, which was held within twelve years before
the date of suit. The Subordinate Judge held that
the suit was not barred by limitation: — Held.
that in a case like the present where the land is not
in the possession of an ijaradar or under-tenure
holder, but in the possession of ordinary tcnant<,
before it can be determined whether the suit is
barred or not, it must be found upon the evidence
as to whether the tenants in occupation of the land
had been paying rent to the plaintiffs or to the
defendants. If they had been paying rent to the
defendants and not to the plaintiffs, possession
must be held to have been with the defendants,
and a complete cause of action must be deemed to
have arisen to the plaintiffs. On the other hand,
if the plaintiffs had been in receipt of rent from the
tenants and if such receipt of rent .■extended to a
period within twelve years before the date of the
institution of the suit, the suit should not be held
as barred by limitation. Woomesh Chunder Goopio
v.RajNarainRoy,10W.R. 10; Krishna Gdbinda
Dhur V. Hari Churan Dhur, 1. L. R. U Calc. 367 ;
Sheo Sohye Roy v. Jjuchme shur Singh, 1. L. R. 10
Calc. 577 ; and Sharat Sundari Debia v. Babu
Peshad Kar Chowdhuri, I. L. R. IS Calc. 101, dis-
tinguished. GossAiN Mohendra Gni v. Rajani
Kant Das , . , 1 C. W. N. 246

34. Adverse posses-

sion— Landlord and tenant. The plaintiffs sued for
possession of a third share in certain immoveable
property, alleging that they were entitled to it
under an agreement dated the 1st December 1848,
and executed by one Balaji, deceased. By that
document Balaji appointed as successors to his
estate, after his death, three persons B, R (plaint-
iff's father), and S, on condition that they should
maintain him during the remainder of his life, pay
off his debts and perform his obsequies. Accord-
ingly one of the thiee donees, B, lived with Balaji,
and managed the propert}-, Balaji died in 1S52.
JS continued to manage the property tUl his own
death in 1865, when B's eldest son took up the
management, and ho and the other heirs of B sub-
sequently sold a portion of the property. The
suit was principally against the sons and heirs of B
and tho purchaser. The plaint was fled on the
Stli September 1873, and alleged, inter alin, that B
managed tho pro] erty as trustee. The defence
substantially was that B held it exclusively as
owner and not as trustee, and that the suit was

11 B

( 7363 )

DIGEST OF CASES.

( 7364 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II— contd.
Art. 144— cowW.

2. ADVERSE POSSESSION— corj<<i.
barred by limitation. Both the lower Courts dis-
missed the suit as barred by limitation, holding that
B's possession was adverse, and that R had no
possession or enjoyment within twelve years pre-
viously to the institution of the suit. On appeal to
the High Court : — Hehl, that B's possession, whether
it commenced before the death or only on the death
of Balaji, was held, after that event, consistently
with and in fulfilment of the agreement. B, having
entered into possession and been left in possession
in the first instance in accordance with the contract,
could not change the character of the possession by
his mere will. He did not intimate to i? or »S that
he repudiated the contract and intended to go into
possession in opposition to any rights which they
might assert. As he entered and continued to hold
in a character consistent with the subsistence of
their rights, they were never called on to eject him,
or by any other process to establish rights which
were not denied. While there subsisted anj' con-
tract, express or implied, between the parties in
and out of possession to which the possession might
be referred as legal and proper, it could not be pro-
nounced adverse. Dadoba v. Krishna

I. L. R. 7 Bom. 34

Tatia v. Sadashtv
35.

I. L. E. 7 Bom. 40

Suit for partition

beliveen ro-owners — Possession of tenants. The
plaintiff was the Zamorin of Calicut, and he sued in
1887 for a moiety of certain property in Malabar
alleged to belong in equal undivided shares to his
stanom and that of the defendant and to be in the
occupation of tenants. The cause of action was
stated to have arisen in 1881 when partition was
demanded by the Zamorin and refused by the de-
fendant. In some instances the tenants in occu-
pation represented the family, a member of which
was at one time admitted by the Zamorin under a
demise or kanom, and had attorned to the defend-
ant ; in other instances they were shown to have
been admitted by the defendant on paying off the
former tenant who had been admitted by the
Zamorin. In all these instances the defendant in-
tended the tenant who attorned to him to hold as
his tenant to the exclusion of any claim by the
Zamorin, but it was not shown that the Zamorin had
any notice of such attempted usurpation on the
part of the defendant. And on these facts the
defence of limitation was raised on the ground that
the land had been held for more than twelve years
adversely to the Zamorin -.—Held, that Limita-
tion Act, Sch. II, Art. 144, and not Art. ] 42, was
applicable to the suit, and that in the first class
cases referred to above, the tenancy under the
Zamorin had not been determined, and that, in the
second class, there had been no ouster of the
Zamorin, and that consequently the suit was not
barred by limitation. Ittappan v. Manavikeama
L I- L- R. 21 Mad. 153

LIMITATION- ACT (XV OF ISlD-contd
Schedule II — conUl

Art. 14t4~contd.

2. ADVERSE POSSES ?ION-co»t(i.

36. _— Ijaradar, i.

possession of- — Adverse possession — Zamindar, t'.
h>,'. Possession taken by a trespasser during j
currency of an ijara lease does not become advij
to the zamindar (lessor) until upon the expiraii
of the term, and a suit for possession may e
brought within twelve years of that date under e
provisions of Art. 144 of the Limitation .;.
Krishna Gdbind Dhur v. Hari Churn Dhur, I. '„
y Cal-. 367, followed. Sharat Sundari DaB: '.
Bhobo Pershad Khak Chowdhuri

I. L. R. 13 Cale. 1

37.

Adverse pat-

sion of limited interest in land. The manager a
Nambudri family in Malabar, having dcnid
certain land on kanam in 1868, was removed (m
his position as manager in 1875. In 1883 his c-
cessor sued to eject the kanam-holders : — Held, it
the suit was barred by limitation. 1Iadhav».
Narayyana . . I. L, R. 9 Mad. A

38. Suit for pen-

sion— Redemption of mortgage. In a suit in 18 to
redeem a kanam for R62 of 1835, it appeared at
in 1862 the mortgagee had received a renew of
his kanam for a larger amount, and that be
defendant had produced the document of renev in
1864 to the knowledge of the plaintiff in a si to
which the plaintiff w as a party : — Held, tha i»
defendant's possession had not become adne
from 1S64 so as to make it necessary for the plstifi
to sue within twelve years, and that thiuil
was not barred by limitation. Madhava v. '^•
yana, I. L. R. 0 Mad. -^44, distinguished. ^
Navar v. Moidin . . I. L. B. 13 M
39. Adverse ,

sion — An outside person claiming an interc-
estate together ivith an undivided, family- -W
to such owners. In a family of three uii
brothers, an estate was purchased by the 'i
manager, on whose application a fourth p
sister's husband, was recorded in the i-
records as a co-proprietor with them. Thi
even if he by joining in the purchase had 1
entitled to an undivided fourth share '
estate, did not thereby become a men'
the undivided family ; and the member
would not have a right to succeed to his
share, which would have descended to his ov n
the other three-fourths which he would not b
herited going by survivorship among the ui
of the famDy. A son of the eldest !
obtained, by the deaths of his father and
sole possession of the whole estate : — Held,
did not take the one-fourth share abovemt'
by any right of inheritance, and that, in the .'
of proof that his possession of it was by auf'tj^
of the fourth recorded co-proprietor, his P°^,.j
must be presumed to have been adverse' •

( 7365 )

DIGEST or CASES.

( 7366

KTATION- ACT (XV OF 1877)— con^d.
; Schedule II— cmtd.

Art. 144— co«W.

'. ADVERSE POSSESSION— con^<Z.
;ei and to anj' one claiming through him. It
0^ i that a suit to obtain from those claiming
00 1 the son, who was now dead, the one-fourth
re rought more than t\i elve years after posses-
1 i .en by the son, by a purchaser relying on a
a -ough the fourth co-proprietor, was barred
lir ation under Art. lU of the second Sched-
olj\ct XIV of 1877. Ramalakshamma v

I. li. R. 9 Mad. 482

I.C, Collector of Godavery v. Addakki Ra-
iw Pantulu . . Ij. R. 13 I. A. 147

" ^, %.^, x^ ~ '^"'^ for posses-

. n the /th December 1863, A, in execution
18 ^cree, purchased and obtained symbolical
66 n of a certain 4 annas share, the property
w idgment-debtor. The 4 annas share was
le me under a mortgage to B, who happened
^ possession of the share as lessee. The
I'ase expired in 1870 or 1871. 4 Q
^ .re members of a Hindu joint family'
line to a partition of their common
ii was included the 4 annas share
'"'!?' ^A ^?W h's share in the 4 annas
n the 22nd December 1871, purchased
ne of E. B then brought a suit to
:nortgage against F, the heir of his
d on the 8th December 1873 obtained
h on special appeal was confirmed by
nt on the 21st December 1875 On
"iber 1875, A, C, and E had brouc^ht
possession of the 4 annas share a^rainst
Kishore, who had M-rongfuDy taken
the property in 1870 or 1871 soon
'■■ation of the lease to B. The suit
; ' ided in their favour on the 29th July
tne meantime,— that is, somewhere in
-jhad contrived to take possession of the
-i! •• In 1883 symbolical possession was
'•!• the decree of the 29th July. B
- his mortgage decree, and attached
liare, excluding the portion which
lame of his benamidar. Z, the heir
tailed to make good his claim to a
"perty in the execution-proceedings,
■ suit for possession against B on the
^ ^ :—//eW, that the suit, having been
" twelve years from the date of the
session by B, was m time, and fell
' '^ of the Limitation Act. Ram

\I'ADHYA V. BaXDIKAEATAX TeW\RI

. I. L. R. 13 Cale. 203

— Suit to recover

' mortgagees. The defendant was i n

"iree fields (Survey Nos. 222, 360,

tjagee under mortgages executed by

^vas the plaint iff-s guru and his prede-

ace as jairgam or presiding lingayat

fi math. G died in 1874, and the pre-

LIMITATION ACT (XV OF 1877>-con«.
Schedule ll—contrl.

Art. 144^-conff7.

2. ADVERSE POSSESSION-^n/d.

sent suit was b.ouglu in 1882 to recover possession
of the fields on tlie ground that G was not compe-
tent to alienate them. Two of these fields had
been ong.naUy mortgaged by G to one S in 1863.
in July 1866 a fresh loan on the security of the
same land was obtained from D, the son of 8, and
tfie first mortgage-deed was then superseded by
one executed in favour of D. In 1871 D assigned
his mortgage to the defendant. It was contended
that the plaintiffs' claim to these two fields wag
barred, as the mortgage to D was more than
twelve years anterior to the suit -.—Held, that the
suit was not barred, as the cause of action accrued
to the plaintiff on G\s death, and the suit was
brought only eight years after that event. J\max
Saheb v. Mcjrgaya Swami . I. Ii. R. 10 Bom. 34

42.

— Adverse posses-
sion— Benamidar. In a suit against a purchaser at
a sale under Act XI of 1859, s. 13, the plaintiff
claimed to have an incumbrance by virtue of two
mokurari pottahs executed by the heirs of the last
of a series of benamidars, and it appeared that the
last benamidar had actual ownership of ope-fourth
of the property comprised therein :~Hekl, that the
incumbrance was good to the extent of such fourth,
and that the claim was not barred by Art. 144 of
Act XV of 1877. Imambaxdi Begum v. Kumles-
WARi Pershad

I. L. R. 14 Calc. 109 : L. R. 13 I. A. 160

^3. _ Adverse jx)sses-

sion — Under-tenure grenited under ghatwali tenure.
A judgment in a suit regarding conflicting claims
made by a ghatwal and the under-tenure-holders to
receive certain compensation-money which had
been paid in respect of lands in part comprised in
the under-tenure determined that the ghatwal was
entitled to the money, the under-tenure-holders
having been in possession of the lands by the mere
sufferance of tlie ghatwal, who could put an end to
the tenure at any time. In a suit brought by the
ghatwal to resume, as determinable at will", the
under-tenure which had been granted by one of his
ancestors of land, part of the ghatwali mehal,
limitation was set up in bar of the suit : — Held, that
after the creation of the under-tenure, as long as
there was no dispute or conflicting claim, ''the
possession of it was not adverse to the ghatwal ;
and proceedings, either Ix-tween the ghatwal or
between undcr-tcnure-holdors on the one side and
creditors on the other, could not te taken to show
an assertion of right by either of the parties now in
litigation, as against one another. There being
nothing else to render the possession adverse,
limitation only commenced at the date of the'
abovementioned claim to the compensation-money
which was made less than twelve years before the
present suit was brought ; and accordingly the

11 B 2

( 7367 )

DIGEST OF CASES.

( 736S )

LIMIT ATION ACT (XV OF 1811)— contd.
Schedule II — contd.

. Art. 144 — contd.

2. ADVERSE POSSESSION— conJi.
suit was not barred. Ram Chunder Singh v.
Madho Kumaei

I. L. R 12 Calc. 484 : L. R. 12 I. A. 188

reversing on this point tlie decision of the High

Court in Madho Kooery v. Ram Chunder Singh

I L. R. 9 Cale. 411

44.

Possession

mortgagee. Where plaintiff's ancestors mortgaged
land and the mortgagee obtained possession on con-
dition that the produce should extinguish interest :
— Held, that the plaintiff's suit was not barred by
the law of limitation, although the transaction took
place twelve years before the passing of Regulation
II of 1802. Held, also, that in such a case no cau?e
of action could accrue until something was done to
render the friendly possession hostile. Vanneri
Pukxjshottaman Nambtjdri v. Patanattil Kanjtt
Men A YEN .... 2 Mad. 382

45. Suit for posses-
sion of immoveable property — Adverse possession. I
died in 1861 leaving a zamindari estate, a moiety
of which at the time of his death was in the posses-
sion of a mortgagee. On the death of /, the de-
fendants in this suit, who were among his heirs,
caused their names to be recorded, as his heirs, as
the proprietors of such estate, to the exclusion of
the plaintiff in this suit, who was his remaining
heir ; and they appropriated to their own use con-
tinuously for more than twelve years the profits of
the unmortgaged moiety of such estate, and the
malikana paid by the mortgagee of the mortgaged
property. In 1877 the defendants redeemed the
mortgage of the mortgaged moiety of such estate
from their own moneys. In 1878 the plaintiff sued
for the possession of her share by inheritance of
such estate : — Held (Spankie, J., doubting), with
reference to the mortgaged moiety of such estate,
that the possession of the defendants in respect of
such moiety did not become adverse, within the
meaning of Art. 144 of Sch. II of Act XV of 1877,
on the death of / in 1861, but on the redemption
of such moiety in 1877 — " adverse possession "
under that article meaning the same sort of posses-
sion as is claimed, — that is to say, in this case, full
proprietary possession, which was not the nature of
the possession of the defendants until the redemp-
tion of the mortgage ; and the suit therefore in
respect of such moiety was within time. Umr-tjn-
nissa v. Muhammad Yae Khan

I. li. R. 3 Ail. 24

46.

Adverse posses-

sion. On the 6th September 1865 B obtained a
patni lease of certain land from the zamindar, and
at an auction sale by the Sheriff of Calcutta on the
21st Febniary 1867, the zamindar's interest was
knocked down to B, and a conveyance of the pro-
perty to him was executed by the Sheriff on the 1st

LIMITATION" ACT (XV OF 1877)-co
Schedule 11— contd.

Art. 144 — Contd.

2. ADVERSE POSSESSION— con<d.
April 1867. On the 13th March 1879 a suitu
khas possession was brought against B hj C, i
had bought the property at a sale in execution i
decree made on a mortgage thereof, the date on
mortgage being 11th January 1865, and the «
of the decree being 30th November 1865. Bpl
eel adverse possession : — Held, that B's possess! n
patnidar only could not be considered as adw
to 0, who claimed the superior interest ; thi '(
possession as purchaser could not be considei jo
have commenced before the date of the conve)ee
to him by the Sheriff, — namely, the 1st of rii
1867 ; and that therefore the plea of adverse*
session was bad, since the suit had been instifd
within twelve years of that date. Kasujiuxsji
Bibee v. Nilratxa Bose

I. L. R. 8 Calc. 79 : 9 C. L. E78
10C.L.I15

47.

Adver-^

sion — Suit for possession of mortgaged
Where there was nothing to show whi
family had been a joint or a divided fai.
where the suit was not against a mortgh.
before the plaintiff could get at the mort-
had to remove the obstacle presented by
verse title (based on a twelve years' usuti
original possession) of the daughter-in-lir
original mortgagor : — Held, that the 1 •
applicable to the case was that prescribed '
s. 1, Act XIV, of 1859. Nund Koomar
Shumboo Singh . . . . 8 W
48. Martgn:

mortgagee — Adverse jmssession of tortiom n
— Heir of mortgagee, right of, to redeem.
descended to three sisters. On a question
a mortgage of a portion by one of the siste:
years ago, was in her own right, or on '
the family, or how otherwise, it appeared t
sister had dealt Avith several portions as o!!
behalf ; that one of them was tlie family '
for joint interests, but she had not intiv:
respect of the portions mortgaged. Tli
gagee had helcl and enjoyed from the first. .
assigned absolutely, and the assignee ha
assigned absolutely as owner. In execut;o|
debt of the widow of the mortgagor's son, '
and interest mortgaged in the premises '
and the Sheriff's vendee sold to the
The son of the surviving sister (nor the i
sued for redemption and possessioE
as his title accrued (on his showing) O''^*'.
death, at which time defendant's venal
adversely, no mortgage relation had beej
lished as between plaintiff and defends
more than twelve years having elapsed ^'
the suit was not maintainable. S
Bebee v. Gobeedhone Bermono ...

2 Ind. Jur. N'

( 7369 )

DIGEST OF CASES.

( 7370 )

[ 'ATION- ACT (XV OF 18n)-contd.

Schedule ll—contd.
LL Art. 1^4.-contd.

ADVERSE POSSESSION— co/i«(^.

■ ■ — Cause of action —

possession. R obtained, on 7th January

;ecree declaring a deed of sale of an estate

vour, dated 7th January 1854, to be a

authentic, and vahd instrumenc. In the

3 the plaintiff had acquired possession of

Ue under a farm from Government, which

fie '.red in 1872. In a suit for possession

^ lue deed of sale and the decree of 1862 :—

^ t the period of limitation of the suit began

» tm the termination of the farming tenure,

y the vendors or their representatives

% e obtained adverse possession. Dhundi

■" ^u- • . . 7 K". W. 149

: ~~, Transfer of right

esston of ijaradar. After adverse posses-

moveable property for more than twelve

•!W period of limitation cannot commence

the mere circumstance of a transfer of

« apposed rights or relinquishment. Brin-

' (UNDER Sircar Chowdhky v. Bhoop\l

. . 17 W. R. 377

Adverse posses-

isftree from defendant not a party to suit.

^ i held possession of land adversely to B,

ftejards let it in patni to C. B brought a

■ssession against A, and, having obtained

m attempted to execute it by turnino- C

: p «ssion. Between the date on which A

^iook adverse possession of the land and

which B attempted to turn C out of

more than twelve years elapsed -.—Held,

im against C was barred by limitation ;

I was not bound by the decree obtained

agJ St A, not having been made a party to

loHENDRo Nath Mukerjea r. Naffur

AL Chowdhey . 1 C. L. R. 537

Adverse posses -

recover possession of property sold at
ue. The plaintiff and two other
his family, M and S, held a zamindar
>wing shares, viz.,— the plaintiff ten
TO annas, and S four annas. Having
3 land ijmali, or joint, they agreed, in
9, to effect a batwara, or private parti -

. ti ^^-^ *^^ ^^^"^^ "'^■''' ^^^^^ parcels of land

'011^ his ten annas share were allotted to

and other parcels representing their

together made six annas, were allotted

< who held jointlv. M died in 1842, and

■|me to the plaintiff. The four annas

■■is sold in execution of a decree against

Too] and the purchaser of it, not accepting

•ition, sued both ^' and the plaintiff

it declared that there had been no

I for a declaration of his right to

'^li 'la four annas share of the whole estate.

ee ^] made to that effect in 1860, and in

LIMITATION ACT (XV OF l5n)-contd.
Schedule II— contd.

Art. 144— con<d.

2. ADVERSE rOSSESSION-co«<cZ.
1863 an appeal by .S' alone against this decree was
dismissed by the High Court. The purchaser's
heirs, he having died, obtained possession of land
representing the four annas share under the decree
of 1860. ,S' then set up a title to hold part of the
lands allotted under the batwara of 1839 to the six
annas share on the ground that they were lakhiraj
lands, and distinct from the revenue-paying villages
in which his interest had passed under the execu-
tion sale. The plaintiff sued, in September 1873,
the defendant, who had purchased this last alleged
interest of S at another sale in execution of a decree
against him, claiming that the partition having
been set aside and a four annas share of the whole
estate obtained by the purchasers under the decree
of 1860, a right accrued to him to have his share
now twelve annas, declared upon the lands which
hacl fallen within the six annas share. He also
claimed to have it declared that the parcels alleged
to be lakhiraj were not so. On the question of
limitation it was held that the 145th Article of the
second Schedule of Act IX of 1871 was appUcable ;
and that, even if technically the lands now in ques-
tion remained in the possession of S pending the
appeal against the decree of 1860, there was no
possession adverse to the plaintiff rendering it
necessary for him to assert his right until the dis-
missal of the appeal in 1863. Manwar Ali v.
Annodapersad Rai

I. li. R. 5 Calc. 644 : 6 C. L. R. 71
L. R. 7 I. A. 1

53. Suit by trustee to

recover temple lands — Possession for twelve years by
party claiming to be trustee. The defendant pur-
chased from one of the co-trustees of a temple the
right to manage the affairs of the temple and enjoy
certain land which formed the endowment of the
temple, and held possession of the land for more
than twelve years : — Held, that a suit by the other
trustee to recover the land was barred by limitation.
Kannan 1-. NiLAKANDAN . I. L. R. 7 Mod. 337

54. Ca use of action —

Suit for accretions to tenure. The cause of action in
respect of accretions accrues from their formation
and delivery to the defendant, and a suit brought
after twelve years from that time is barred.
LucHMEE Naraim Shaha r. Jctaduaree Hold\r
7 W. R. 89

Upheld on review in Doyamoyee Dossee v.
LucHMEE Narain Shaha . . 7 W. R. 457

55.

Suit for alluvial

land for which there has been a decree — Judicial de-
termination of area of land — Cause of action. A con-
sent decree of 1873 decided that certain alluvial
land belonged to the plaintiff's village Sipah. The
area was judicially determined in 1876 on a map of
1874, but actual possession was not obtained from

( 7371 )

DIGEST OF CASES.

( 7372 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule 11— contd.
Art. 14^— contd.

2. ADVERSE POSSESSION— cow<d.
the defendant who owned villages on the opposite
side of the river : — Held, in a suit to recover the
land, that the twelve years which would bar the suit
ran from 1876, the judicial ascertainment of the
land decreed, and the suit, having been brought
within twelve years from that time, was not barred.
Jagajit Singh v. Saeabjit Sikgh

I. L. E. 19 Gale. 159
L. B. 18 I. A. 165

56. Suit for division

of land? according to cvstom established in former
svit — Establishment of right. A co-owner of village
lands sued in 1861 to have them divided among the
villagers according to a custom (last observed in
1835) that at the expiration of every twelve years
the lands should be redistributed by lot among the
co-owners, and to have two of the shares delivered
to him as one of such co-owners. In 1851 another
co-owner had, in a suit to which some only of the
present defendants were parties, obtained a decree
for the periodical allotment of the lands ; and in
1853 such decree which clearly recognized the exist-
ence and validity of the custom, was affirmed on
apjjeal : — Held, that htigation which commenced in
1851 was sufficient to prevent the law of limitation
from barring the plaintiff's right to sue, and that
the circumstance that some only of the present
defendants were parties to such litigation could
make no difference with regard to the litigation
bar. Qucere : Wliether, in the absence of such
litigation, the law of limitation would have been a
bar. Venkatasvami Nayakkan v. Subba Eau.

SiNKAEA SUBBAIYAN V. SUBBA RaU 2 Mad. 1

57. Suit for posses-
sion by avoidance of sale-deed — Catise of action —
Adverse possession. The suit was instituted on the
17th of February 1874, the plaintiff claiming the
possession of his deceased brother's share in the
joint ancestral estate, by avoidance of a sale-deed,
dated |the 14th of May 1859, on the averment that
he and his brother had mortgaged the estate, the
mortgagees taking possession ; that after his
brother's death the defendant, 31, his widow, had
made a sale of the share in favour of the defendant
B, who had redeemed the mortgage about five
years before'' suit and obtained possession ; and
that 31, having made a second marriage, had
lost her interest in the share. Held, that the suit
was barred by limitation under Art. 145, second
Schedule, Act IX of 1871, reckoning the period from
the date of the sale, from which date B began to
hold adversely to the plaintiff. Gobardhan v.
Balmukand 7 K . W. 349

58.

Act IX of 1S71,

Art. 93 — Suit to set aside deed and for possession. On
the death of A, his property was taken possession
of by C under an alleged deed of sale from A : — Held,
that a suit hy A's heir for possession and to set

LIMITATION ACT (XV OF 1877)-,,^
Schedule 11— contd.

Art. 144 — contd.

2. ADVERSE POSSESSION— conW.
aside the deed' was governed by Act IX ol 871
Sch. II, Art. 145, and not by Art. 93. Teh-hc
Chattapadhya v. Nobokishgee Ghuttfck

2 C. II 11

59.

Suit for

lalion of deed of sale. Plaintiff sued for cancntio
of the sale of certain lands made to defend ts i
1841. In 1843 defendants executed ar ^rec
ment (A) to plaintiff, giving her a right of pui
chase. The language of the document wa~"]
you and your posterity pay in a lump t 17
rupees, we will hand over the lands to you." jpo
the question of limitation : — Held, in special ipea
that the plaintiff's claim was barred, mortha
twelve years from the date of the cause of ;tio:
(1843 at latest) having elapsed before suit. \^E>i
kappa Chetti v. Akktj . . 7 Ma 21!

60. and Art. 91 — Suit for m&.

sion of immoveable property — Suit for cancellm c
instrument. The purchasers at a sale in exatio
of decree of land sued to set aside an instru tnt (
usufructuary mortgage of the land executed ytli
judgment-debtor before the sale, and for poissio
of the land, alleging that the mortgage was ludi
lent and collusive '.—Held, that, as the mii an
substantial relief sought was the recovery oiossei
sion of immoveable property from perso trei
passing on it under the title of a fictitiotmor
gage, and the declaration of the invalidit^^f tl
defendants' pretensions was no more than i inc
dental step in the assertion of the plainti s tit
and right to possession, the hmitation oiweh
years was applicable to the suit. Tawarr A
V. Kara Mai, I. L. B. 3 All. 394 ; S. A. N-132
1882, decided the 11th August 1882; Weel: l-i
All. [1882) 173 ; Sobha Pandey v. Sah<'
I. L. R. 5 All. 322 ; Ramausar Pandey \. I
Jati, I. L. R. 5 All. 490 ; Uma Shankar ^
Prasad, I. L. R. 6 All. 75 ; and the judgi
Steaight, J., in Hazara Lai v. Jadai>
I. L. R. 5 All. 76, followed. Bhawani / >■<
Bisheshar Prasad, I. L. R. 3 All. 846 ; Asi^r A
V. Mahammad Zainulabdin, I. L. R- 5 -:• 5/
distinguished. Ikeam Singh v. Intizam Aj

I.L.R. 6^-20

61.

and Art. ^^—Omissk.

tvithin due time to set aside instrument off' '
moveable property — Suit to recover proferty.
a certain period is allowed by the Law of Li
within which an instrument affecting a
rights or immoveable property must
pugned, and the person whose rights or
are affected fails to impugn such instrumt^
that period -.—Held, that he wll not be i
from avaihng himself of the longer period'^^.J'
for the recovery of immoveable property, P^^'\
that he can prove that such instrument is i" »

( 7373 )

DIGEST OF CASES.

( 7374 )

3 MITATION ACT (XV OF 1817)— contd.
Schedule II — cont'L
Art. 144 — con'd.

2. ADVERSE POSSESSION— con<c/.
vi so far as his interests are concerned. Raghtj-
Bj: Dyal Sahxt v. Bhikya Lal Misser
I I. L. R. 12 Calc. 69

l'2. — Agreement not to

eiiute decree — Wrongful execution in breach of
aeement — Deed of conditional sale — Disavowal of
tilt. The plaintiff sued in 1875 to recover posses-
a\\ of immoveable property which the defendant
U obtained in 1873, in execution of an ex parte
djree, dated the 8th June 1861. That decree was
itinded on a deed purporting to be a deed of con-
d|Onal sale, dated the 24th December 1853, exe-
Ojed by the plaintiff in favour of the defendant.

1 ; plaintiff alleged that the deed was executed in
oer to protect the property against the claims of
p ntiff's son, and the plaintiff sought to set aside

0 account of defendant's breach of an agreement,
ded the Kith .January 1856, whereby the dcfend-
si stipulated that plaintiff's possession should
ni be disturbed. The defendant, inter alia,
p|ided the bar of limitation against i)laintiff's suit :
-\ldd, that the suit was not barred by limitation,
ft|>laintiff's cause of action only arose when defend-
a first practically disavowed the trust by seek-
iijmorethan nominal execution of decree. Pakam
StOH ». Lalji Mal . . I. L. B. 1 All. 403

3. ,- . — Suit for recovery

o^ndowed propert;/. In 1801 the shebait and pro-
Witor of the gudi of a debsheba at K alienated
pjt of the land by deed of gift to B for the purpose
o'ounding a sheba at C, which was accordingly
d e. In 1823 the then shebait of the debsheba at

1 Qstituted a suit for the recovery of the alienated
bis against the then shebait of the sheba at C,

in that suit it was declared that the sheba was

pendent of the debsheba, and the then plaintiff

referred to a regular suit. In 1861 the then

si jait of the debsheba brought a suit for recovery

lie lands against the then shebait of the sheba : —

i, that the suit, not having been in.stituted until

r the lapse of more than twelve years from the

p ntiff's succession to the sheba, was barred by

tl Statute of Limitations. Sotible : That the

Stute of Limitations, Bengal Regulation ITI of

1 3, barred the suit twelve j'cars after the death

0 4. KiSSNONUXD ASHROM DuNDY V. NrKSINT,

12 s Byragee . . Marsh. 485

Religious cndotc-

^i — Sale of trust property in execution — Suit by

ti tee to recover the property. In execution of

drees against the plaintiff, "as the representative

0 lis deceased father and brother, certain lands

e sold to the first defendant. The plainti ff sued

t« ecover them, alleging that the former owner of

tl lands had assigned them to his (the plaintiff's)

b:her and himself (the plaintiff) and their des-

lants by a deed of gift to perpetuate the worship

the donor's household idol -.—Held, that the

LIMITATION ACT (XV OF l877)-co«<J.
Schedule 11— contd.

Art. 14.^— contd.

2. ADVERSE POSSESSION— confe/.
plaintiff was entitled to recover the property. The
gif t was a valid one creating a religious endowment
under the Hindu law ; and that the plaintiff's suit
was not to set aside the sale, but was one by the
trustee of the endowment to recover the property
to which the limitation of twelve years was appli-
cable. Rttpa Jagshet v. Krishxaji Govind

I. L. R. 9 Bom. 169

65.

Suit by a trustee

of a devasom disaffirming the act of his predecessor.
The trustee of a Malabar deva-om, who had suc-
ceeded to his office in June 1883, sued in 18S7 to
recover for the devasom possession of land which
had been demised on kanom by his predecessor in
February 1881, on the ground that the demise was
invalid as against the devasom. The defendant
had been in possession of the land for more than
twelve years, falsely asserting the title of kanomdar
with the permission of the plaintiff's predecessor
in office : — Held, that the suit was not barred by
hmitation. Vedapuratti v. Vallabha

I. L. R. 13 Mad. 402

66.

Suit by

dar to recover land resigned to Government by his
ancestor — Cause of action. In a suit brought by a
mirasidar to recover possession of mi<^as land, which
his ancestor had resigned to Government, against
a holder to whom Government had subee-
quently granted it, it was held that the statute of
limitations commenced to run against the mirasidar
and his heirs from the time the miras was signed,
and not from the date of the subsequent grant of it
by Government. To the validity of the registra-
tion of miras land by a mirasidar to Government
the consent of his heirs is not requisite. Arjcx.\

VALAD BhIVA t'. BhAVAN VALAD Ni.MBAJI

4 Bom. A. C. 133

67.

Suit by mirasidar

to recover tenure relinquish^ and taken up by an-
other. Where a mirasidar left his miras in 1850
without executing a razinamah resigning it, and
the miras lay waste until 1855, when the defendant
took it up and cultivated it, it was held that the
cause of action of the mirasidar arose in 1855, when
the miras was taken up by the defendant. Lakshc-
MAX Ramji v. Ramlal v.\lad Maim r ATA

6 Bom. A. C. 66

68.

Adverse posses-

sion— Mokurari title — Onus probandi. The plaint-
iff purchased a mouzah from the proprietor in
1869, and now sued to obtain po.ssession from the
defendant, who was proved, to have held under a
ticca lease down to 1856, and who now claimed to
hold under a mokurari lease, which he said was
granted by the former proprietor in 1859. The
plaintiff failed to prove possession by his Tendor
within twelve years of suit brought, and therefore

( 7375 )

DIGEST OF CASES.

( 7376 )

LIMITATION ACT (XV OF 1817)— contd.
Schedule II — contd.

Art. 144 — contd.

2. ADVERSE POSSESSION— con«d.
the Courts below dismissed his suit. On special
appeal it was held that the defendant, before suc-
ceeding on the question of limitation, ought to have
shown that the plaintiff had notice of the mokurari
title set up. The case was sent back to the Court
below to try the validity of that title. Dhanxjk
Dhari Singh v. Gapi Singh

6 B. L. K, Ap. 151 : 15 W. R. 191

See Prahlad Sen v. Run B-vhadur Singh

2 B. L. R. P. C. Ill : 12 Moo. I. A. 289
12 W. R. P. C. 6

69.

Suit to set aside

mokurari grant — -Notice of claim — Cau^ie of action.
In a suit by the guardian of a minor to recover
possession of certain lands in her zamindari and to
set aside an alleged mokurari grant, the plaintiff's
case was that the defendants had held under a
ticca lease, and had wrongfully held on after its
expiration. The defendants set up an old moku-
rari grant under which they claimed to hold in per-
petuity upon the payment of a fixed rent. The
High Court, overruling the decision of the first
Court upon the statute of limitations, held, and in
the opinion of the Privy Council rightly, that the
statute does not begin to run in favour of the moku-
raridar against the zamindar until the latter has
had notice that the former claims under a mokurari
grant, and such notice was not given in the present
instance twelve years before the commencement
of the suit. Tekaetnee Goura Coomaree v.
Saroo Koomaree . . . 19 W. R. P. C. 252

Affirming Tekaitnee Goura Coomaree v. Bengal
Coal Company

13 W. R. 129 : 5 B. L. R. 667 note
12 B. L. R. 282 note

70.

Ad IX of 1S71,

Art. 135 — Suit for possession after foreclosure ■
ings. Under the Limitation Act of 1871, a mort-
gagee who has taken foreclosure proceedings may
bring a suit for possession at any time within twelve
years from the expiration of the year of grace. Art.
135, Sch. II of that Act, does not apply to such a
case. Ghinarain Dobey v. Ram Monaruth Ram

7 C. L. R. 580 : I. L. R. 6 Gale. 566 note

71.

-Suit by mortgagee

for possession after foreclosure. In a suit by a mort-
gagee to obtain possession after foreclosure insti-
tuted more than twelve years after such mortgagee
had, upon default, become, under the words of the
deed, entitled to possession, but within twelve years
of the date of the expiry of the year of grace
granted under the foreclosure proceeding •.—Held,
under s. 145 of the Limitation Act (IX of 1871),
that the period of hmitation must be calculated
from the date of the expiry of the year of grace,
and not from the time when the default was first

LIMITATION ACT (XV OP l877)-canfei
Schedule 11— conti.

Art. 14:4:— contd.

2. ADVERSE POSSESSION— contd.
made. Burmamoye Dassee v. Dinobundhoi
Ghose , . . . I. L. R. 6 Calc. 56-
7 C. L. R. 58!

Ghinaram Dobey i-. Ram Monaruth Ra:
Dobey

I. L. R. 6 Calc. 566 note : 7 C. L. R. 58*

72.

-Act XV of 187

Sch. II, Art. 135 — Possession under mortgage. Unde
a mortgage-deed, which by its express terms allow
the mortgagee a right to take possession upo
default by the mortgagor in payment of the mort
gage-money, the mortgagee, as absolute owner o
the property, has twelve years from the time a
which his right to possession commences, in whic
he may bring his suit for possession. But whei
there is no such stipulation in the mortgage, tb
right of the mortgagee to take possession does nc
accrue until after the expiration of the year c
grace. Modun Mohun Chowdhry v. Agha
Ally Beparee

I. L. R. 10 Calc. 68 : 13 C. L. E. I

See Denonauth Gangooly v. Nubsinoh Pri
shad Dos . . 14 B. L. R. 87 : 22 W. E. 9

73.

Suit to sel asii

alienation by mortgagee. The cause of action in
suit by a mortgagor to set aside an alienation by
mortgagee in possession arises from the date '
redemption of the property by the morta;a^o
Adjoodhya Singh v. Girdharee . 2 N. W. 1(

74. Suit for redem

tion against person not claiming under Tuortgagi
When the plaintiff brought the suit for redemptio
it was found that the defendant, who was in pos«
sion, did not claim under the mortgagee, and tb,
for more than twelve years before the date of t|
suit he had held possession from the Governme;
by a title adverse to that of the plaintiff i—He
that the claim was barred under Art. 145 of Act 1
of 1871. The contention that so long as the m
gagor is entitled only to the equity of redempi
there can be no invasion of his interest cannm
assented to. There are cases in which the ngi
and interests of the mortgagor and mortgagee ;
equally invaded, and in such cases the mortg:>.
must come into Court within the time allowed
the recovery from trespassers of interests in la:
Ammu v. Ramakrishna Sastri , „

L L. R. 2 Mad. 2

75. , Suit to set fl-

sale after conversion from mortgage into sale. \>
a mortgage is subsequently converted into a ■>>
the cause of action in a suit to set it aside ar'-
not at the date of the mortgage, but from the <
of the sale, and if within twelve years from ti
date, the suit is in time. Iradat Khan v. Ua'
Dyal lAgral

( 7377 )

DIGEST OF CASES.

( 7378 )

J MITATION" ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 14:4:— contd.

2. ADVERSE POSSESSION— con<d.

rS. Adverse posses-

»». Obstruction to the obtaining possession by
mortgagee under his mortgage by persons who,
1 ile claiming a hen on the property, admitted the
I 'rtgagor's title to the property, held, not to be
i rerse possession as against the mortgagee's title
J purchaser. Purmananddas Jiwaxdas r.
, jNABAi . . , I. L. R. 10 Bom. 49

' ' • — — Adverse posses-

<n — Mortgagor and mortgagee — Suit by mortgagee
_ possession of mortgaged property — Pre-emption —
^rchaser for value without notice. Under a regis-
ved, deed of mortgage, dated in May 1869, the
1 irtgagee had a right to immediate possession ;
I't by arrangement between the parties the mort-
j yprs remained in possession, the right of the mort-
(jee to obtain possession as against them being,
Iwever, kept alive. In October 1869 the mort-
j^ors sold the property, and thereupon one R
■ mght a suit to enforce the right of pre-emption
': respect of the sale and obtainecl a decree, and
p the property, and sold it in 1871 to D. In 1883
V; mortgagee brought a suit against D to obtain
ijssession under his mortgage : — Held, with refer-
■'ce to a plea of adverse possession for more than

elve years set up by the defendant, that the
;|sition of a person who purchased property by
-ierting a right of pre-emption was not analogous

that of an auction-purchaser in execution of a
cree, but that such person merely took the place
. the original purchaser and entered into the same
ntract of sale with the vendor that the purchaser
IS making. There was privity between him and
!e vendor, and he came in under the vendor, and
Is holding must be taken to be in acknowledgment

all obhgations created by his vendor. Anundo
\oyee Dossee v. Dhonendro Chunder Mookerjee,
I Moo.l. A. 101: SB. L. R. 122, distinguished.
DBOA Prasad r. Shambhu Nath
I I. L. B. 8 All. 86

I 'S- ■ Limitation Act,

'^71, Arts. 15 and 82 — Suit by minor to set aside
j tenation of property by guardian. A Hindu family
ping heavily oppressed with debts, ancestral and
;herwise, the two elder brothers of the family, for
emselves and as guardian of their minor brother,
tider Act XL of 1858, apphcd to and obtained
jOm the District Judge an order under s. 18 of the
|ct for the sale of several portions of the ancestral
|tate, and sold the same under registered deeds
jgned by the Judge. Within twelve years after
le registration, the adopted son of the minor
■other brought several suits against the purchasers
j' set aside the sales and recover back his share of
le property, alleging that the two elder brothers
ltd made the sale fraudulently and illegally to
tisfy personal debts of their own :— //eW, that a
'it of this nature was not a suit to " set aside an

LIMITATION" ACT (XV OF 1877)— con/d.
Schedule II — contd.'

Art. 144c— contd.

2. ADVERSE POSSESSION— <:or,feZ.
order of a Civil Court " under Art. 15, Sch. II, of
Act IX of 1874 ; nor was it a Suit " to cancel or set
aside an instrument not otherwise provided for "
under Art. 82, but that it was governed by Art. 145.

SiKHER C'HDND t'. DuLPnTTY SiNGH

I. L. R. 5 Calc. 363 : 5 C. L. R. 374

79. and Art. 11 — Suit for possession

—Civil Procedure Code {Act VIII of 1H59), s. 246—
Limitation Act {XV of 1S77), Sch. II, Art. 11.
Where, in consequence of an adverse order passed
under the provisions of Act VIII of 1859, s. 246,
a suit is [since the Limitation Act (XV of 1877)
came into force] instituted to establish the plaint-
iff's right to certain property and for possession,
such suit is not governed by the provisions of Art.
11, Sch. II of Act XV of 1877, but by the general
limitation of twelve years. Koyla-sh Chunder Paul
Choivdhry v. Preonath Roy Chourlhry, I. L. R. 4
Calc. 610 ; Matonginy Dossee v. Chowdhry Jun-
munjoy Mullick, 25 W. R. 51.3 ; Joyram Loot v.
Paniram Dhoba, 8 C. L. R. 54 ; and Raj Chunder
Chatterjee v. Shama Churn Garai, 10 C. L. R. 435,
cited. GoPAL Chunder Mitter v. Mohesh
Chunder Boral

I. L. R. 9 Calc. 230 : 11 C. L. R. 363

Bissessur Bhugut r. Mttrli Saht

I. L. R. 9 Calc. 163 : 11 C. L. R. 409

80. and Art. IZQ—Suit to obtain pos-
session of land from vendor who has been dispossessed
and subsequently recovered possession — Possession,
suit for. A vendor who was at the time out of
possession of certain immoveable propertj^ sold a
share in it to a purchaser by a kobala. After the
date of the sale, the vendor recovered possession,
and the purchaser, within twelve years of the
vendor's having so recovered possession, but more
than twelve years after he had been originally dis-
possessed, instituted a suit to obtain possession of
the share covered by the kobala : — Hdd, that the
suit was governed by Art. 144, and not Art. 136 of
Sch. II of the Limita"tion Act (XV of 1877), and was
not barred by limitation. Art. 136 does t>at apply
to a suit brought against a vendor himself when he
recovers possession. Ram Prosad Janxa v. Lakhi
NAR.UN Pradhan . I. L. R. 12 Calc. 197

81. '■ and s. 28 — Sale in execution of

decree — Suit to recover possession of property sold in
execution — Possession of a person having no title.
K obtained a decree against G and in execution
purchased G's property on the 9th August 1872.
Plaintiff obtained a decree against, K, and in exe-
cution purchased the property on the 21st August
18S2. On plaintiff's going to take possession,
defendant No. I obstructetl him on the ground that
he had purchased tlic property from A' at a private
sale, dated the 1st September 1876. The plaintiff
thereupon, on the 6th September 1886, brought the

( 7379 )

DIGEST OF CASES.

( 7380 )

LIMITATION ACT (XV Or 1877)— conW.
Schedule II — contd.

~ Art. 144 — contd.

2. ADVERSE POSSESSION— con<<?.
present suit to recover possession of the property : —
Held, that the title of defendant No. I to the land
in dispute being not proved, Art. 144 of the Limit-
ation Act (XV of 1877) was applicable to the plaint-
iff's claim, and that the suit being brought within
twelve years from the date of the purchase set up
by defendant No. I (which was held by the lower
Courts not proved), the claim was not barred.
Want of possession for twelve years after the date
of purchase would extinguish the purchaser's title.
Ram Prasad Janna v. Lakhi Narain Pradhan,
I. L. E. 12 Calc. 197, and Sheo Prasad v. Udai
Singh, I. L. R. 2 All. 718, referred to. Lakshman

VlNAYAK KtJLKARKI V. BiSAKSING

I. L. R. 15 Bom. 261

82. Suit by auction-

'purchaser to set aside alienation by judgment-debtor.
An auction-purchaser can sue to set aside any
alienation made by the judgment-debtor previously
to the sale in execution which he thinks to be collu-
sive. Baichoo v. Howard . . 3 Agra 15

The cause of action in such a suit runs from the
date of transfer, and the suit is barred e^ter the
expiration of twelve years, unless the transfer was
actually fraudulent. Nabain Dass v. Niddha
Lall 3 Agra 19

83. Purchaser at sale

for arrears of revenue — Shikmi talukh. A purchased
a zamindari of which certain mouzahs were claimed
and taken possession of by B and C as mokurari
holders of a shikmi talukh created by the former
zamindar before the Decennial Settlement. To a
suit by A for the recovery of the lands, B and C
pleaded limitation, calculating the period from the
time of the purchase in 1833 : — Held, that limita-
tion must be comi^uted not from the time of the pur-
chase, but from the time when possession was taken
from the purchaser. Wise v. Bhoobun Move
Debia . 3 W. R. P. C. 5 : 10 Moo. I. A. 165

84.

-Suit by purchaser

to compel zamindar to register transfer. Where a
zamindar refuses to register a transfer on the appli-
cation of a purchaser, the latter's cause of action in
a suit to compel him to do so arises from the time
of such refusal, and not from the time when his title
accrued by his purchase. Radhika Pershad

ShADHOO v. GoOEGO PrOSUNNO PvOY

20 W. R. 125

85.

'Rights of — Limit-

ation. One of four children set up a deed of gift
and a will, in virtue of which he was in 1842 placed,
by a summary proceeding of the Courts, in posses-
sion of the whole estate left by his deceased father.
The rights and interests of two other children were
subsequently sold in execution of a decree for debt,
and purchased by the present plaintiffs. A fourth

LIMITATION ACT (XV OF 1877)— conirf.
Schedule II — contd.

Art. 144 — contd.

2. ADVERSE POSSESSION— conid.
child instituted a suit against the first-mentioned
one to set aside the deed of gift and will, the result
of which was that in 1835 the will, which affected
two-thirds of the estate, was set aside as having
been made without due consent of heirs, the con-
sent alleged in the will being held to be no consent.
The plaintiffs now sued to get possession of the
shares of the two children whose rights and in-
terests they had bought : — Held, reversing the deci-
sion of the High Court that the plaintiffs, as pur-
chasers at an execution-sale, were in no better
position than claimants under any other convey-
ance or assignment, and, their cause of actiou
arising in 1842, they were barred by limitation.
ExAYET HossEiN V. Gridhari Lall

2 B. L. R. P. C. 75 : 11 W. R. P. 0. 29

12 Moo. I. A. 366

86. ■ Suit to recover

land sold in execution of decree — Possession. The
purchaser at a sale held on the 14th September 1881
in execution of a decree in the form of a money-
decree, obtained upon a mortgage-bond executed
by the father of a Mitakshara joint family during
the minority of his only son, having failed to obtain
possession of the property mortgaged, brought
a suit for possession, and under a decree
made in that suit obtained possession in November
1866. In July 1878 the wife and son of the judg-
ment-debtor brought a suit to recover possession
from the purchaser of two -thirds of the property,
on the ground that the auction-purchaser was
entitled only to the share of the mortgagor '.—Held,.
that the suit, having been brought within twelve
years from the date on which the defendant obtain-
ed possession, was not barred by limitation.

MXTNBASI KOER V. NOWRUTTON KOER

8 C. L. R. 428

87.

Settlement bi/

revenue authorities. Where the defendants, who
were at the settlement in 1841, when the estate was
farmed out, recorded as proprietors by the revenue
authorities did not hold proprietary and adverse
possession tiU the expiiy of the farming lease :—
Held, that the plaintiff's suit was not barred by
limitation as not having been brought within twelve
years after 1841. Ramaisheb Singh r. Saiva
Zalim Singh .... 2 Agra S
— Settlement by

88.

revenue authorities — Co-sharer. In a case in which,
after resumption, one of several shareholders, for
himself and the others, took a settlement from
Government, the right of any other shareholder to
the property under the settlement accrued from
the date of settlement ; and a suit within twelve
years of that time was not barred. Bunwakeb
Singh v. Ramanoogba Singh . 10 "W. B. 14
89. Suit for confirm-
ation of partition — Cause of action — Limitation-

( 7381 )

DIGEST OF CASES.

( 7382 )

LIMITATION ACT (XV OF 1817}— contd.
Schedule II — contd.

Art. 144— cow/rf.

2. ADVERSE POSSESSION— co«<d.
AVhere there had been a private partition of an
J38tate, and the several shareholders had held their
'lands in accordance therewith, an application was
'made bj- some of the shareholders to the Collector
ito have a fresh partition made as if the whole lands
iwere held jointlj-. Plaintiff, who was also a share-
holder, objected, but his objection was overruled.
Thereupon he brought a suit for confirmation of
jthe partition, and for an injunction to stay the
! I partition pending before the Collector : — Held, that
jthe plaintiff's cause of action against the defendants
arose upon their moving the Collector to interfere
iwith the first partition, and that the period of
I limitation in respect of such cause of action was the
same as in any other suit for determining the rights
[of parties to immoveable property. Khoobun v.
' WooMA Chueun Singh . 3 C. L. R. 453

90.

■ Cause of action —

,Suit for pos-^ession and declaration of right to partici-
fate in permajient settlement of a mehal resujned
■under Beng. Reg. II of 1819. Chur land was held
by the proprietors of the adjoining estate. The
•chur was resumed by Government in 1835, and
I declared to be liable to assessment under Regula-
•tion II of 1819. The recorded proprietors of the
adjoining permanently-settled estate, to which the
chur was a contiguous accretion, refused to make a
j permanent settlement with Government at the
rent demanded. The chur was then held khas by
, Government for some time and subsequently leased
j out for temporary periods to strangers. In these
! temporary leases Government reserved the pro-
prietor's rights to come in and take a permanent
settlement on the expiry of the temporary settle-
ments, and also reserved an allowance of ten per
I cent, on the rent as malikana on their account,
i which sum had been kept in deposit in the Collec-
! torate treasury. In 18G7 Government made a pcr-
I manent settlement with the defendant, one of the
• recorded proprietors of the contiguous estate, of the
j entire chur and refused the application of other
shareholders in the estate to be joined in the scttle-
I ment. The Collector, at the request of the deft-nd-
j ants, api)lied the deposit in his treasury in satisfac-
tion of the Government revenue. An unsuccessful
j shareholder brought a civil suit against the defend -
j ant for possession and declaration of his right to
I participate in the settlement -.—Held, that the suit
I was not barred, as the period of limitation com-
menced from the date of the settlement witli the
defendant. Kri-shnaChandka SandvalCiiowdky
V. Harish Chandra Chowdhy . 8 B. L. R. 524
s.c. Kristo Chunder Sandyal v. Ka.shee
KiSHORE Roy Chowdhry . 17 W. R. 145

Keisto Chunder Sandel Chowdhry v.
Shama Soonduree Debia Chowdhrain

22 W. R. 520

LIMITATION ACT (XV OF 18n)-^antd.
Schedule 11— contd.

Art. 14:4:— contd.

2. ADVERSE POSSESSION— con<d.

91. : and Art. 113— Suit for

possesaiort of land ba.'>ed on compromise — Specific
performance. A suit for recovery of possession of
land, based on a compromise effected in the course of
previous litigation between the parties, is not a suit
for specific performance of contract, but a suit for
" immoveable property," and would be covered, not
by s. 113 of the Schedule to the Limitation Act,
but by s. 145. In a suit for recovery of possession
based on an agreement to surrender possession,
the possession of defendants at the time when
they made the agreement to dehver over the land
to the plaintiff cannot be taken as hostile to the
plaintiff, but can only be considered adverse to
plaintiff from and after the date of the agreement
by reason of defendant's refusal to carry out
the promise. Betts v. Mahomed Ismael Chow-
dhry 25 "W. R. 521

92. Vendor and pur-
chaser— Transfer of immoveable property — Specific
performance of contract — Limitation Act, 1S77,
Arts. 113, 1.36. On the 27th October 1865 the
vendor of certain immoveable property executed a
conveyance of such property to the purchasers. On
that date the vendor was not in possession of the
property although his title to it had been adjudged
by a decree against which an appeal was pending.
The conveyance did not contain any express promise
or undertaking on the vendor's part to put the pur-
chasers into possession. On the 24th Februarj- 1870
the vendor obtained possession of the larger portion
of the property, and on the 23rd August 1872 of the
remainder. On the 5th October 1877 the pur-
chasers sued the vendor for the possession of the
property, stating that " possession was agreed to be
delivered on the receipt of possession by the
vendor," and that the cause of action was that
the vendor had not put them into possession :
— Held, that the suit was not one for the
specific performance of a contract to deliver
possession, to which Art. 113 of Sch. II of Act
XV of 1877 was applicable, but one to obtain posses-
sion in virtue of the right and title conveyed to the
purchasers, to which either Art. 130 or 144 of Sch.
II (if that Act was applicable ; and that, whichever
of them was applicable, the suit was within time.
Shed Prasad r. Udai Singh

I. L. R. 2 All. 718

93. Suit to declare

will invalid — Reversioner. Suit by .4, a Hindu lady
and daughter of B, to declare invahd a will of B,
made in favour of C, a relative. It appeared that D,
the widow of B. instituted proceedings against C,
the devisee, in which she claimed the property of B.
Subsequently the widow, by a deed of compromise,
admitted the rights of C and abandoned her own r
—Held {per Seton-Karr, J.), that limitation in the
present suit by .4 against C, the devisee, ran from

( 7383

DIGEST OF CASES.

( 7384 )

LIMITATION ACT (XV OF 1817)— contd.
Schedule II — contd.

Art. 144— cojj^d.

2. ADVERSE POSSESSION— co«<(^.
the date on which the widow admitted the devisee's
rights, and not from any prior date, as during the
period of the widow's dispute wdth the devisee she
was protecting the interests of C, who claimed to be
the reversioner, who would not have been heard in
the matter, and had no right to sue during the pen-
dency of such litigation. Sotjdaminee Dossee i\
BisToo Narain Roy . . 8 "W. R. 323

94. Stranger claim-
ing interest in estate together with an undivided
family — Inheritance among such owners. In a
family of three undivided brothers an estate was
purchased by the eldest as manager, on whose appli-
cation a fourth party, a sister's husband, was re-
corded in the revenue records as a co-proprietor
with them. The latter, even if he by joining in the
purchase had become entitled to an undivided
fourth share in the estate, did not thereby become a
member of the undivided family and the members
of it would not have had a right to succeed to his
fourth share which would descend to his own heirs,
the other three-fourths which he would not have
inherited going by survivorship among the members
of the family. A son of the eldest brother obtained
by the death of his father and uncles sole possession
of the whole estate : — Held, that he did not take the
one-fourth share abovementioned by any right of
inheritance, and that, in the absence of proof that
his possession of it was by authority of the fourth
recorded co-proprietor, his possession must be pre-
sumed to have been adverse to the latter and to any
one claiming through him. It followed that a suit
to obtain from those claiming through the son, who
was now dead, the one-fourth share, brought more
than twelve years after possession taken by the son,
by a purchaser, relying on a title through the fourth
co-proprietor, was barred by limitation under Art.
144 of the second Schedule of Act XV of 1877.
Ramalakshamma v. Ramanna

I. li. R. 9 Mad. 482

Collector of Godavery v. Addanki Ramanna
Pantulu . . . L. R. 13 1. A 147

95. . — . Benamidars —

Purchaser at sale fcr arrears of revenue. In a suit
against a purchaser at a sale under Act XI of 1859,
s. 13, the plaintiff claimed to have an incumbrance
by virtue of two mokurari pottahs executed by the
heirs of the last, of a series of benamidars, and
the question was whether those who had granted
the mokurari were entitled to all or to any and
■what part of the land comprised in their grant and
as to this the most important fact was the actual
possession or receipt of the rents, it being found
that the last benamidar had actual ownership of
one-fourth of the property comprised therein : —
Held, that the incumbrance was good to the extent
of such one-fourth share, and twelve years' bar
commencing from the date of possession first held

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 14:4:— contd.

2. ADVERSE POSSESSION— co«frf.

adversely, the suit was not barred by Art. 144, Act

XV of 1877. Imambandi Begttm v. Kamleswari

Pershad . . . I. L. R. 14 Calc. 109

L. R. 13 I. A. 160

96.

Cause of action-

Acts IX of 1S71 and XV of 1S77. R, a Hindu
widow, granted a jungleburi tenure to certain
tenants in respect of a chur belonging toherhuis-
band's estate. An amulnama was granted to the
tenants signed by a karpardaz of R in respect of tk
tenure. R died in January 1861, and was succeeded
by J and P, two daughters, the last of whom died
on the 31st December 1880. On her death the
grandsons succeeded to the estate. One R's
death, J and P got possession of all estate papers,
and amongst them a dowl granted by the
tenants in return for the amulnama. In 1865
proceedings were taken by the tenants to
obtain kabuUats on the footing of those
documents, which proceedings came to an end in
1868. In 1873 .7 and P instituted suits against the
tenants, alleging the amulnama and dowl to be
forgeries, and seeking to enhance the rents payable
to them, as well as to have it declared that R's acts
did not bind them. In these suits it was found that
J and P had all along been aware of the claim made
by the tenants that they held a permanent tenure,
and the suits were dismissed on the ground that it
was too late for J and P, after the lapse of twelve
years from R^s death, to raise the question. In
1884 D, a receiver, instituted a suit in the names o)
the grandsons to eject the tenants on amongst othei
grounds that the grandsons, reversioners, were noV
bound by R's acts, and that the jungleburi tenurt]
was not binding on them ; that the tenants were
middlemen and had no right of occupancy ; that a'
all events the plaintiffs were entitled to rent on thf
area of land then held by the defendants, as there
had been large accretions to the amount covered bj
the amulnama and dowl. The defendants amongst
other things pleaded limitation: — Held, that thi
suit was barred by limitation. Adverse possessioi
began to run on R's death (as J and P, wh(
represented the estate, were then well awar^
that the tenants claimed to hold the lands unde
a permanent lease, and though J and P receive(
rent, the possession of the tenants was adverse t^
them), and more than twelve years elapsed befor
Act IX of 1871 came into force, and therefor
the defendants had then obtained a good title b
adverse possession as against all the reversioner
which could not be defeated by the provisions^c
the subsequent Limitation Acts of 1871 and 187'
Drobomoyi Gupta v. Davis

I. L. E. 14 Calc. 32;

97.

Limitation Ad

1S77, Art. 141 — Adverse possession against widow-
Reversioners. The plaintiffs sued for possession o

( 7385 )

DIGEST OF CASES.

( 7386 )

LIMITATION ACT (XV OF 1811)— co7i id.
Schedule II — contd.

Art. 144— co«<(f.

2. ADVERSE POSSESSION— conW.

certain zannndari property as reversioners to the

[estate of one C, their right to sue having accrued

as alleged bv them on the death of the widow of

C which took place on Uth October 1884. The

defendant, alleging himself to be the adopted son of

C and being in possession of the property in dispute

isince the death, contended that the claim was

jbarred. The Court of first instance dismissed the

■laim as barred by Art. 118 of the Limitation Act,

1 on appeal the District Judge held that the claim

s barred by defendant's adverse possession over

property for more than twelve years. On

md appeal, it was contended that the suit, being

a Hindu entitled to possession as a reversioner on

me death of a female, was governed by Art. 141 of

Ithe Act, and therefore not barred : — Held, withoiit

peciding that question, that, as on the facts found,

ithe adopted son held adversely to the widow,

jidverse possession which barred the ^ddow barred

ilso the reversioners, and therefore the claim was

iired. Shiva Ganga Case, 9 Moo. I. A. ■')43, referred

Ghasdharap SrsGH v. Lachmax Sixgh

I. L. E. 10 AU. 485

98. Hindu widow —

oped son — Adverse possession against widoic for

more than fuehe years, iffect of, as against a sub^e-

huenthj adopted son — Title. Adverse possession

igainst a Hindu widow for more than twelve years

. IS the rights of a subsequently adopted son. S, a

ndu, died leaving a wido-«- and a minor son. The

: uior died in 1856. Thereupon the defendant, a

eparated cousin of the minor, took possession of his

property, got it entered in his o"mi name in the

evenue records, and received its income himself

*hout giving the widow any share thereof. In

T2 the widow adopted the plaintiff, and he too

i> excluded by the defendant from the manage-

nt and enjoyment of the property in question.

IS83 the plaintiff sued, as the adopted son of i?, to

over possession of the property in dispute : —

'i,that the suit was barred, the defendant having

i adverseh' to the widow for more than twelve

irs before "the plaintiff's adoption. Krishxaji

NARDHAX r. MoRBHAT . I. L. R. 13 Bom. 276

99. Mortgagee he-

■ ing purchaser of share in mortgaged property. A

rtgagee of an entire undivided estate does not, by

subsequent purchase of a certain share therein

m one not in actual possession at the time of

iveyance, thereby change his character from a

rtgagee to that of an owner, but his possession

itinuesas a mortgagee. B held an entire un-

."ided estate under a mcrtgagc (usufructuary)

■u C since 1273 (1866), and as such mortgagee

1282 (1875) £ purchased a share therein from X),

' 1 had not been in actual possession since the

1''^ of the mortgage. On the 20th January 1885,

brought a suit to recover possession of his

urchased share :—Held, that the subsequent pur-

lilMITATION^ACT (XV OF 1877;— conW.

Schedule II— contd.
Art. I4:4r— contd.

2. ADVERSE POSSESSION— cowW.
chase did not change the character of B from that
of a mortgagee to that of an owner, and that his
suit was barred by twelve years' limitation.
Nfxdo Lal Addy v. Jodu Nath Halder

I. li. E. 14 Calc. 674
100. Co-sharer— Pos-

sessioji of one co-sharer when adverse — Mortgage —
Mortgage by three co-sharers — Redemption by one of
several mortgagors — Right of the other ynortgagors
to sue for redemption — Period of limitation for
such suit. In 1847 the property in dispute was
mortgaged bj' three co-sharers, Z>, A, and R. In
1850 R alone redeemed the property and mortgaged
it again to a third person. In 1882 the heirs of D
and A brought a suit to redeem the whole of the
property, or their portions of it. The defence to the
suit was that it was barred bj- limitation, being
brought more than twelve years after R had re-
deemed the property, and R's possession subse-
quently to such redemption having been adverse to
the plaintiffs and their predecessors in title : — Held,
that the suit was not barred by hmitation. When
R redeemed, the property, he held it, as regards his
co-sharers' interests in it, as alienor, and as such his
possession was not adverse to them. It did not
contradict, but rather implied and preserved, their
ultimate proprietarj' right. In the case of a co-
sharer holding after redemption, limitation is com-
puted only from the date when the possession be-
comes adverse by the assertion of an exclusive title
and submission to the right thus set up, in analogy
to the provision which bars an excluded sharer
generally after the lapse of twelve j-ears from the
time when he becomes aware of his exclusion. As
long as possession can be referred to a right consistent
with the subsistence of an o'miership in being at its
commencement, so long must the possession be
referred to that right rather than to a right which
contradicts the owmership. Ramchandra Yash-
VAvr Sirpotdar v. Sadashtv Abaji Sirpotdar
I. L. E. 11 Bom. 422

101.

Suit for re-

demption or recovery of properly on payment of a
charge — Possession after a redemption by one of
several mortgagors. The plaintiff sought to recover
his father's share in two portions of family property,
one of which had been mortgaged by the plaintiff's
father and the father of the defendant No. 1 jointly ;
the other had been mortgaged by the plaintiff's
father jointly with the father of defendant No. 1 and
the husband of defendant No. 2. The first was
redeemed by the father of defendant No. 1 alone in
1868 ; the second was redeemed by the defendant
No. 1 more than twelve years before the suit. The
parties were Mahomedans, and the plaintiff had a
brother and three sisters, only one of whom
(defendant No. 2) was a party to the suit.
Defendant No. 1 contended that the suit was
defective for want of parties, and that it was time-

( 7387 )

DIGEST OF CASES.

( 7388 )

lilMITATION ACT (XV OF 1877)— conW.
Schedule II — contd.

Art. 14:4r— contd.

2. ADVERSE POSSESSION— co?tf./.
barred : — Held, that the plaintiff 's brother and
sisters ought to have been joined as co-plaintiffs,
the defendant No. 1 's possession after redemption
not being adverse to them. If it was adverse at
all, it was adverse to the whole of the plaintiff 's
branch of the family, so as to bar the right of the
group altogether. But that was no reason why
the co-owners should not be admitted as co-
plaintiffs, and the suit must go on upon its
merits. Bhaudik v. Ismail

I. L. K. 11 Bom. 425

102.

' Redemption of

land by one of two co-mortgagors and re-mortgage
thereof — -Possession under second mortgage for more
than twelve years. A and B, two brothers, being
entitled to certain land, mortgaged it in 1852 to C.
In 1864 A redeemed the mortgage and re-mort-
gaged the land to D for the same amount. In 1885
the defendants (sons of A) redeemed the mort-
gaged toD. In 1886 the plaintiff (son of B) sued
defendants and the representatives of C and D to
reedem a moiety of the land on payment of a
moiety of the amount due on the mortgage of 1852.
The defendants pleaded, inter alia, that the suit
was barred by limitation, as the land had been
held adversely since the mortgage of 1864 : — Held,
that, in the absence of proof that the land was held
with an assertion of adverse title, the plaintiff was
entitled to a decree. Moidin v. Oothumanganni
I. L. R. 11 Mad. 416

103.

ditional

. Mortgage — Con-

-Foreclosure — Suit for possession-
Eeg. XVII of I'^O'i, s. S — Cause of action— Limita-
tion Act (XIV of IS.j'f), s. 1 (12). A suit for fore-
closure was brought in 1886 upon a mortgage by
conditional sale executed in 1846, the condition
being for payment within five years from that date.
The deed provided that, in default of payment
within the prescribed period, the property mort-
gaged " will be foreclosed (baibat), and this
mortgage-deed wiU be considered as an absolute
sale-deed. ' ' Between 1846 and 1886 no foreclosure
proceeding or other steps were taken by the mort-
gagee, and no admission of liabUity was made by the
mortgagor : — Held, that by reason of Act XIV of
1859 (Limitation Act) the plaintiff's remedy was
barred during the currency of that Act, and that
the time within which he was entitled to maintain
an action for foreclosure, if he had taken the proper
proceedings, expired in 1863. Held, also, that,
even if foreclosure-proceedings under Regulation
XVII of 1806 had been taken, the cause of action
was the original non-payment of the money on the
due date, and the provisions of the regulations
could not create a fresh cause of action. Deno-
nath Gangooly v. Nursing Proshad Doss, 14 B. L. E.
<S7, referred to. Muralidhar v. Kaijchan Singh
I. L. R. 11 All. 144

LIMITATION ACT (XV OF 1877)— conW.
Schedule II — contd.

Art. 144 — contd.

2. ADVERSE POSSESSION— cowfrf.

104. Hindu law

Joint family — Purchaser from one co-partner. Plaii
iffs, being members of a joint Hindu family allegi
division and a sale to them by other members
their share in the family property more than twe i
years before suit, sued to eject a more recent pi
chaser. The plaintiffs failed to prove division
alleged. One of the members of the family who ?)
in possession of the property to which the sale-dcj
related did not join in executing it : — Held, that It
suit was barred by limitation, since the proposit' .
that the possession of one co-parcener is the poss
sion of ail for purposes of limitation has no appli •
tion as between a purchaser from one of the •
parceners and the other members of the fami.
Ratn Lakhi v. Durga Charan Sen, I. L. R. 11 Cu
683, followed. Muttusami v. Ramakrishna I
I. L. R. 12 Mad. 2?

105.

Partition ■

Alienation by co-parceners — Possession hyalier.
Where co-parceners have alienated their shares i
the joint property by sale and mortgage, and 3
alienees have been in possession for more' tli
twelve years, a claim for partition is, as against sn
alienees, barred by limitation under Art. 144 of 3
Limitation Act (XV of 1877). Pandurang .
Bhaskar, 11 Bom. 72, distinguished. Art. 127, S
II of the Limitation Act (XV of 1877), does
apply except in cases between members of a jc u
f amUy. It does not apply to the case of a straEfi
to the family holding property which originiy
belonged to the family. As to him, the ordin^
rule of limitation (Art. 144) applies. Bhavea(|i.
Rakhmin . . , I. L. B. 23 Bom. ll

106. and Art. 141— ^a;;t-

sive possession by one of the co-sharers of porti-s
of joint property, the rest being held jointly. Plair "*
and defendant No. 2 (two sisters) inherited joi'
to their father's estate twenty-five or thirty y
ago. Admittedly all the joint property ex
the dwelling-house (the subject-matter of the -
was in the joint possession of both of Xl.
Defendant No. 2 alone was in possession of
family dwelling-house, but plaintiff visited
si'iter occasionally there in the character ^
guest. There was no evidence that plaii
asserted her title to the house or that her si
denied it. The second defendant then sold
dwelhng-house to the defendant No. 1, wh
upon the plaintiff brought the present suit
Held, that Art. 144 of Sch. II of the Limitarn
Act, and not Art. 141, was applicable to the cp.
but that the possession of defendant No. 2 \s
not adverse to the plaintiff, the circumstance pf
the case showing that that effect could notjie
given to the exclusive possession of defen(}i*
No. 2. Asud Ali Khan v. Akbar Ali Khan, v-
L. R. 364, followed. Baroda Sundaei D^J
V. Annoda Sundaei Deby . 3 C. W. N. '*

( 7389 )

DIGEST OF CASES.

( 7390 )

LIMITATION ACT (XV OF 1671)— contd.
Schedule II — contd.

.. Art. 14:4k— contd.

2. ADVERSE POSSESSION— conf^f.

107. _ Limitation Act,

iS77, s. 10 — Trust — Spiritual slavery of disciple to
ftru — Act y of 1S43. This was a suit brought in
i881 by the head of an adhinam for declarations
ibat a muth was subject to his control ; that he was
iatitled to appoint a manager ; that the present
jead of the muth was not duly appointed, and his
jomination by his predecessor was invalid ; and for
silvery of possession of the moveable and immove-
ble properties of the muth to a nominee of the
ilsintifi. The claim extended also to religious
I- ablishmcnts at Benares and elsewhere connected
ith the muth. 1'he muth was founded by a
rmber of the adhinam. Many previous heads of
le muth had agreed to be " slaves ' ' of the head of

fe adhinam, but for over sixty years the head of
e adhinam had exercised no management over
e endowments belonging to the muth, and in a
lit (compromised) of the year 1854 the present
'etentions of the head of the adhinam had been
nied in toto. The defendant bad succeeded in
$80 to the management of the muth under the
ill of his predecessor, dated the same year, and was
>i a disciple of the adhinam : — Held, that the suit
iS barred by limitation in respect of the personal
aim to manage the endowments as to which no
aim had been put forward for sixty years ; that
e suit was not barred by limitation in respect of
e claim to set aside the appointment of the defend-
it (who entered into possession in 1880 under a
ill, dated in the same year), or to see that a
napetent dharmapuram man be appointed, in
ite of the total denial of the claims of the head of
eadliinam in 1854; that the agreement of the
ad of the muth to become the " slave "of his
ru could have no legal operation since 1843, and
at the adverse possession of the' defendant from
at year was fatal to any claim of the plaintiff
der such agreement. Giyana Samb.\ndha Pax-

EA SaNNADHI v. KaNDASAMI TAMBrRAJ[

I. L. R. 10 Mad. 375

108. ^ Grant of profits

'■'shmukhi vatan in perpetuity — Hereditary

ttas — How far such grant valid after the death
■ grantor. By a sanad duly executed on the
.Vugust 1850, the plaintiffs' father, Y, who
a vatandar deshmukh, appointed the defend-
- :ind their heirs hereditary vatani gomastas,
i granted, by way of remuneration for their
vices, R201 and a'quantity of grain out of the
■I aual vatan income in perpetuity. In consider-
on of certain sums obtained from the defendants,
mortgaged the vatan property to the defendants,
0 subsequently sued Y upon the mortgage,
at suit was referred to arbitration, and an award
8 duly made, and a decree upon the award
s obtained by the defendants against Y- In 1859
«*cution of the decree was granted against Y. In
i4 the services connected with the vatan were

LIMITATION ACT (XV OF 1877)-co»id.
Schedule II — contd.

Art. 144— contd.

2. ADVERSE POSSESSION— fo»W.
discontinued by Government. In 18711' died. ITie
defendants having kept the decree alive, sought in
1881 to execute the decree again.^t the plaintiffs'
eldest brother, who filed objections, but his objec-
tions were overruled, and execution was ordered to
issue. The plaintiffs brought this suit in 1883 for a
declaration that the defendants were no longer
entitled to the allowance under the sanad, and'for
an injunction restraining the defendants from the
execution of the decree against the vatan. The
defendants contended, iiiter alia, that the sanad
could not be cancelled, Y having L'rantcd it as full
owner ; and that the receipt by the defendants of
the allowance had been adverse since 1S()4, when
their services had ceased. Both the lower
Courts decided in favour of the plaintiffs. On
appeal by the defendants to the High Court:
—Held, confirming the decree of the lower Courts,
that the plaintiffs were entitled to the declaratory
decree and to the injunction prayed for. Al-
though the management of the vatan was vested
by the sanad in the defendants and their heirs in
perpetuity under the title of gomastas, never-
theless the remuneration attached to the office by Y
was in derogation of his successor's rights, and was
therefore, at any rate in the absence of proof of
custom, invalid against them. Held, also, that
assuming the grant by Y to be invalid as against his
successor, adverse possession would onlv run against
the i^laintiffs from the time of his death in 1871, and
the present suit, having been filed within twelve
years from that date was not barred. KRisnx.\Ji
V. Vithalrav . . . I. L. R. 12 Bom. 80

109. ^ _ Suit against

Government for inam lands and mokasa amah
Attachment under Act XI of 1S62, effect of — Adverse
possession — Mokasa etmcds, meaning of. In 1826 A
obtained a decree on a mortgage, awarding him pos-
session and enjoyment of certain inam property,
consisting of lands and of cash allowances annually
paid from the Government treasury called mokasa
amals. A and his successors continued in posses-
sion down to 1852, when the inam was attached on
behalf of Government pending an inquiry, under
Bombay Act XI of 1852, into the title of the holders
of the inam. The attachment remained in force till
1865, when Government finally decided that the
inam property, with the exception of a certain
portion, should be restored to tliose from whose
possession it had been taken in 1852. Thereupon D,
the successor in interest of A, applied to the Collec-
tor to be restored to possession. The Collector
refused. D therefore sued liim for arrears of the
mokasa amals and obtained a decree in 1868.
Thereafter D did not receive any payment from the
Government treasury. In 1883 D filed the present
suit again.<^t Government to recover possession of
the inam lands together with arrears of the amals.

( 7391 )

DIGEST OF CASES.

( 7392 )

LIMITATION ACT (XV OP 1811)— conUl.

Schedule II — contd.

Art. 144 — contd.

•2. ADVERSE POSSESSION— con/i.
Held, also, that even if the suit were cognizable by
the Civil Courts, it would be barred by limitation.
The plaintiff's right to the periodical payments
■Has barred by a total discontinuance of them for
more than twelve years before the institution of
the suit, notwithstanding his decree for the amals
in 1868, which might estabUsh his right to them in
that particular year. Held, further, that the claim
to the lands was also time-barred, the Collector's
possession being that of an adverse holder since
1865, when the attachment was ordered to be ^vith-
drawn. The land could not properly be said to be
in custodia legis. Government having taken posses-
sion of it in its own right, and not on behalf of
any rival claimants thereto. Bao Karan Singh v.
Baker Ali Khmi, L. B. 9 I. A. 99 : I. L. B. 5 All. 1;
Shidhojirav v. Nnikojirav, 10 Bom. 22S ; and
Tukaram v. Siijan Gir Gum, I. L. B. 8 Bom. 585,
distinguished. Shivram Dinkar Ghabpuray v.
Secretary of State for India

I. L. E. 11 Bom. 222

110.

Suit for decla-

ration of title. In a suit the parties to which were
Nambudri BrahmansifoUowing the Marumakkata-
yam law, the plaintiff sued as the adoptive son of
the last member of an other\\ise extinct mana for
a declaration of his title to certain lands as the sole
uralen of a devasom. He was in possession of the
greater part of the land, but one paramba was
alleged to be held adversely to him by/a'^person not
joined in the suit, and the tenants of part of the
remaining land had attorned to the defendant. In
1875 a suit was brought by the defendant's brother
and others against the plaintiff and others to set
aside an alienation by the present plaintiff's pre-
decessor in title, but the suit was'dismissed without
any decision as to the co-uraimi'^right of the then
plaintiff ; and the present plaintiff had no further
notice of interference by the present defendant's
mana : — Held, that the claim was not barred, and
that the plaintiff was entitled to the decree sued

for. StTBRAilANYAN V. PaBAMASW'ARAN

I. L. E. 11 Mad. lie

111.

Manager of a

Hindu temple — Shevaks or servants of an idol —
Bights of manager and servants inter se. "The plaint-
iff was the hereditary manager of the temple of
Shri Ranchod Raiji at Dakor. The defendants
were the shevaks or ministers of the deity. The
plaintiff sued to oust the defendants from a certain
piece of land attached to the temple, alleging that
the defendants had erected shops on the land, and
appropriated the rents to their own use, although it
had been already decided in a suit between the
parties that the land was alwaj's to be kept open and
unoccupied for the use of the temple. The shevaks i
contended that they had been in exclusive and un- I
interrupted possession of the land in dispute for I

LIMITATION ACT (XV OF 1877)— C(|^

Schedule II — contd.
Art. 144— CO wfe/.

2. ADVERSE POSSESSION— conW.

more than twelve years, and that by reason of c
user they had acquired a quasi-proprietary til i
least as against the manager of the temple, le
therefore pleaded that the suit was barrecb
limitation:— If eZi, that the defendants had n b
occupation and user acquired any title as agQi
the plaintiff, who was the manager of the tcp]
estate. They had come into occupation orig.l]
as servants and representatives of the deity n
during their occupation they could not by a is
change^the nature of their possession. Botl le
and the plaintiff held the land for the same ■. tj
and their rights could not be adverse to each le
so as to give rise to a title by prescription, .'h
onlj' question then was as to which of theirra
the proper representative of the deity for the jrti
cular purpose of this suit, and that questional
already been decided in a former suit in favc o
the plaintiff. Mulji Bhulabhai v. Max la:
Ganesh . . . I. L. E. 12 Bom 25

112.

Adverse fm
previous atvst

sion of defendant supplemented
possession of widow by whom defendant was adof.l—
Limitation Act (XV of 1S77), s. 3. B died in ^65
without a son, leaving three widows, viz., L, A.'oA
C, of whom L was the eldest and C the younst.
The plaintiff was unanimously selected by the ree
widows for adoption after the death of their us-
band. The unanimity continued down tclay
1866 ; but on the 30th June 1866 L declared lat,
if the plaintiff were adopted by C, she woulf! '■
consent to it. On the 1st July 1866 C adopt
plaintiff without the consent of L. L'
12th August 1869 L adopted the defen n .
On the 10th August 1881 the plaintiff led
this suit against the defendant, alleging hi -elf
to be B's adopted son and as such do'
possession of B's property. He did not
the factum of the defendant's alleged
tion on the 12th August 1869, which constitute
plaintiff alleged) his cause of action. The det
contended that he himself was the adopted so
having been adopted by L, the senior wido^"
insisted that the plaintiff's adoption was ii,
having been carried out without the consent of
senior widow. He further contended tha'
plaintiff's claim to the property was barred by
tation, it having been in possession of him.«tl
defendant) and L for more than twelve years 1
this suit was filed i—Held, that the suit was I
by limitation (Art. 144 of the Limitation Ac
of 1877), the defendant havmg been in ad
possession of the property for more than t'
3^ears. The plaintiff's alleged adoption took pi
July 1866. The defendant was adopted am
into possession on the 12th August 1869. Thi
was filed on the 10th August 1881, i.e., two O'^
before the expiration of twelve years from the^ate
of the defendant 's adoption, "r^-- ^ +" <■■>!« df-' ol

Down to the df

( 7393 )

DIGEST OF CASES.

{ 7304 )

L CITATION" ACT (XV OF 1877)— contd.
Schedule II — conUl.
Art. 144 — contd.
■2. ADVERSE TOSSESSION— co«/r/.
i,b,lcfenclant 's adoption, L had been cither actually
oi,)nstructively in exclusive possession of the pro-
1. V. such possession being distinctly adverse both
I'laintiff, so far as he claimed to be the
I ^on, and to C, so far as she might claim to
it him during his minority. The question
It ion then depended on whether the defend-
i.d supplement his own adverse possession
- adoption (which was deficient by two days)
adverse possession of L, and this again
il on whether the defendant could be said
'• his liability to be sued from or through L
I bring himself within the definition of a
nt as provided by s. 3 of the Limitation Act
IS77). The Court was of opinion that the
lit might be said to have derived his liability
-ued from L, and that the plaintiff's claim
h fore became barred in 1878. Padajirao v.
RyJRAV . . I. L. B. 13 Bom. 160

Mortgage

• c in possession — Dispossession of mortgagee

■iiser — Adverse possession as again-it mort-

''■n effectual also a-s against the inortgagor —

'/ proof. Land was mortgaged with pos-

M A (defendant No. 1) in 1828. In 1856 A

ted from possession by B, a trespasser

lit No. 2), who subsequently held the land

It with it as his own for forty years. The

J ir sued both A and B for redemption. In

t was contended by B that his possession

11 adverse not merely to A (the mortgagee),

to the plaintiff (the mortgagor), and that

was barred by limitation. The plaintiff

id that B's possession was not adverse to

' luse he as mortgagor had no right to pos-

iuring the term of the mortgage: — Held,

suit fell under Art. 144 of Sch. II of the

m Act (XV of 1877), and that it lay upon

• e that his possession for twelve years prior

it was adverse to the plaintiff (the mortga-

I :iere may be a possession adverse to the

■)f a moitgagce, which nevertheless is not

1 1 > the interest of the mortgagor. In such a

-nit by thi; mortgagor, or those claiming

nil, will not be barred, although one by the

-e may be. The case was remanded for

-' on the question of when B's possession

adverse to the plaintiff. Chinto v. Janki

I. li. B. 18 Bom. 51

Alienation of an

)>roperty by his mother and gvardian. Suit

!><!U to recover possession of certain land,

' rty of a Hindu, who died an infant, leaving

iving his adoptive mother, who entered i«to

u and enjoyed the property till her death

It appeared that in 18<U the deceased and

t ive mother had conveyed absolutely certain

! iiperties toithe widow of one of his first cou-

1 hia adoptive father's side for her mainten-

VOL. III.

LIMITATION" ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 144— con/cf.

2. ADVERSE POSSESSION— con^/.
ance and that of her daughter, and that it had been
assigned by her to A, B, and C —Held, that the
plaintiff's claim to the lands in the possession of A,
B, and C was barred by limitation. Sindrammal
V. Ranoasami Mudaliab I. Ij. B. 18 Mad. 193

115. . ^ Non-payment

of mdvaram— Claim, of kudivaram right by prescrip-
tion. In a suit to recover land, of which neither the
plaintiff nor his predecessor in title had been in pos-
session within a period of forty years before the suit,
the defendants pleaded that the plaintiff had been
entitled to receive melvaram only, that the payment
of melvaram had been discontinued fifteen years
before the date of the suit, and that they themselves
were entitled to the kudivaram right in the land.
It was founded that the non-payment of the melva-
ram had not been accompained by an assertion of
adverse title, and that the^ defendant's kudivaram
right had not been set up twelve years before the
suit l—Held, that the suit was not barred by limita-
tion. GOVINDA PiLLAI V. RaMANFJA PiLLAI

I. L. B. 18 Mad. 171
116. —^ Mortgage by

previous owner out of possession for twelve years —
Alienation of endowed property. In a suit on a
mortgage, dated the 19th June 1888, and executed
by the superintendent of a mosque, the endowments
of which were comprised in the mortgage, to-
gether with defendant No. I therein described as his
disciple, it was admitted that the first mortgagor
had occupied the position of superintendent up to
1871 and that in that year he had executed an
instrument authorizing defendant No. 2 to tako
possession of the properties on behalf of defendant
No 3 whom, as was recited, the executant had taken
in "adoption and appoint^^d to be his successor.
In 1874 the first mortgagor purported to cancel
the instrument above referred to, but it ap-
peared that he never actually resumed the manage-
ment, and that defendant No. 2 resisted various
attempts then and subsequently made to intertere
with his possession, and held the properties together
with defendant No. 3 up to the date of the suit :—
HeU, that defendants Nos. 2 and 3 were in adverse
possession of the mortgage premises from 18.1. and
that the mortgage was consequently invalid,
whatever the purpose of the debt mtendecl to bo
secured thereby. Scbbaic.mayyar r. NiuA>r.-
dullah Saheb . . . I. L B 18 Mad. 342

,,ry . Putnidar and

dar.mUnidnr, diapossssion of— Adverse possession
—Rflinquishmrnt by thr p<itnidnr, fff'Ct of. Iho
land in dispute along with other laud.s were
let out in p»uni and dar-patni by the pro-
,lore<soi in interest of the plamt.ffs Dur-
ing the continuance of the said leases the land
in^dispute was taken possession of, and held ad-

11 C

( 7395 )

DIGEST OF CASES.

7396

LIMITATION ACT (XV OF 1811)— co7itd.

Schedule II — conid.

Art. 144 — co7itd.

2. ADVERSE POSSESSION— conW.
versely by, the defendants or their predecessor.
The patni and dar-patni were relinquished by the
patnidar and dar-patnidar in favour of the plaintiffs
on the 29th June 1891, and they, on the 28th
June 1893, brought a suit for recovery of possession
of the disputed land from the defendants. The
defence Avas that the suit was barred bv limitation :
—Held, that Art. 144, Sch. II of the Limitation
Act, appUed to the case, and that the suit was barred
by limitation, inasmuch as it was not brought -vvithin
twelve years from the date when the possession of
the defendants became adverse to the plaintiiJs.
Nuffer Chandra Pal Chowdhry v. Rajendra Lai
Gosivami, I. L. R. 25 Calc. J'^7 ; Ounga Kumar
Mitter v. Asutosh Gossami, I. L. R. 2-1 Calc. 8 3 ;
Sharat Sundari Dahia v. Bhobo Pershad Khan
Ckowdhuri, I. L. R. J 3 Calc. 101 ; and Chinto v.
Janki, 1. L. R. is Bom. 51, distinguished. C4obikda
Nath Shaha Chowdhry v. Sueja Kanta Lahiri

I. L. R 26 Calc. 460

118.

LIMITATION ACT (XV OP 1877)--co, .

Schedule II — contd.
Art. 144— co«<d.

2. ADVERSE POSSESSION— co«/d.
the hands of the under-proprietors above mentic d
whom he sued for possession of it in 1887:— id
that, inasmuch as the defendants were by m
decree of 1866 established as owners of an ui r
proprietary right, becoming thereby entitled a
sub-settlement which they had obtained, >i
possession was adverse to any one claiming tlx
talukhdar or superior proprietor of the same Ci :e
as \\ell as to others. The defendant's possuipi
with title dating from 1866 at latest, the lap o
time barred this suit under Act XV of '7

ImDAD HuSAIN v. AziZ-tJS-NESSA

I. L. R. 23 Calc. 3!
L. E, 23 I. A

Mortgage dating

from before the annexation of Oude — Oude Redemp-
tion Act XIII of 1^66 — Under- proprietary rights of
third parties in adverse possession, with a sub-settle-
ment of one of the villages mortgaged. In 1854.
before annexation (1856), the OA\Tier of a talukh of
ten villages made a usufructuary mortgage of ths
entire Uaka to a neighbouring talukhdar. The
mortgagor died in 1857, leaving a minor son, to
whom, during the events that followed, the mort-
gage was unknown, and whose attempts to establish
an inherited right to the mortgaged ilaka against the
talukhdar were ineffectual whilst that i<Tnorance
lasted. The confiscation of 1S5S had° at one
time swept away all rights, whether of the talukhdar,
who was mortgagee, or of the mortgagor's heir, to
redeem, or of any under-proprietors on the ilaka.
This effect was thus counteracted. In the settle-
ment of 1859-60, adjustments were made of the
o^Tiership of property, and in this case settlement
was made mth the talukhdar of his larger talukhdari
estate, in which the mortgaged ilaka was at the same
time incorrectly included as part,. The risht of
redemption was restored by Act XIII of 1866, the
mortgagor's heir, being, however, unaware of his
title to redeem any mortgage. Under-proprietary
rights were restored by order of Government in
1859. Such rights were, with a sub-settlement,
decreed by a Settlement Court on the 31st July
1866, in one of the villages of the raortga^ed ilaka,
in favour of a claimant, through whom the defend-
ants in this suit now made title. In 1881, the
mortgagor's heir, having by that time discovered
the existence of the mortgage of 1854, sued the heir
of the niortgagee to enforce the right to redeem.
He obtained against the talukhdar as such heir a
decree for possession of nine of the villages in the
ilaka^^ma«aY Bibi v. Imdad Husain, I. L. R. 15
Calc. 800 t L. R. 15 I. A. 106, but the tenth was in

119.

RigU of

session claimed by tenant againtt landlord — Mo)^
by landlord — Possessory suit in the Mamlatr'
Court by the tenant against the mortgagor — Ire
in favour of the tenant — Assignment of moiigi
by mortgagee — Suit brought by the assignee tor ve
possession — Effect of Mamlatdar's order ajn«
mortgagor. One R, who was the owner othi
land in dispute, mortgaged it to B in Jul
In October 1 876 the defendant, a tenant of t
obtained an injunction against R restrain
from interfering with his (the defendant'.-
sion, in possessory suit which was fileil
Manilatdar's Court in May 1876. In JuIy
obtained a decree on his mortgage, and in tx
he got possession of the property from R (l!:
gagor) in June 1879. The plaintiff, who
assignee of both B and R (mortgagee and mo
sued the defendant in ejectment in Septeni!
Both the lowei- C'ourt> allowed the cla
second appeal : — Held, that ever since the |
ings in the Mamlatdar's Court commencintr
defendant's suit in May 1876, the possessi ;
defendant, whatever may have been it-
originally, was distinctly adverse to R, ano
the plaintiff, who as assignee might hav
possession at any time under the mortgage,
present suit, not having been brought until ^
ber 1888, was barred by the Limitation Aci
1877). Bapu bin Mahadaj . v. M\hadaji "»
1. L. B. 18 Boi;

120. Ma

Land appertaining to muth — Sal of min-
{ownership of miras tenure) — Mirasdar <-
estates, position of — Limitation Act {XV o:
s. 28— Right to recover rent. In 1860, K, tb
ger of a rauth, sold to i? the miras malki (ov.
of miras tenure) of certain lands appertainiii-
muth subject to the payment of assessnn
(lied in the same year, and was succeeded 1
manager. In 1864 R sued B to set aside t.
The suit was dismissed in 1865, and B's mn
was confirmed. In 1871 one G obtained a
declaring him to be the legal manager of th
and removing R, who was held to have had i '—

( 7397 )

DIGEST OF CASES.

( 7398 )

l;[ITATION act (XV of l3n)—contd.

Schedule II — conld.

Art 144— c<M><(/.

2. ADVERSE POSSESSION— ro«^/.

j LIMITATION ACT (XV OP 1877)-confei.
Schedule U—contd.

10 ,e office. In 1887 the plaintiff, who succeeded

0 the management of the muth, brought the

prrnt suit against the defendant, who was the

voiee of B, to recover possession of the lands or to

I rr assessment for three years previous to the

'he defendant pleaded that the suit was

\ liniitation. The plaintiff contended that,

\as no lawful manager between 1860 and

i I period ought to be omitted in computing

I of limitation, and that as under the deed

' R the vender became a tenant, the pos-

t' the vendee and of the defendant could not

-'•: — HeW, that, if defendant's possession

ise to the ownership of the muth during

■ ars after K's death, the operation of the

citation would not be affected by the fact

I" was no legal manager during that time.

t her, that in the Bombay Presidency the

on inam estates i- only " a tenant at

1 or at a reasonable rent not subject to

it so long as he pays it ;" and as there was

111 the sale -deed passed by Z to 5 which

: >. different construction to be put on the

iiure created by it, B's possession under it

be adverse to the muth until there was an

:i by the grantee of hi.a claim to be a perma-

: nt, up to which time he would, in the eye of

lie regarded as a tenant-at-will. But the

.-'ht by R in 1804 showed that B was then

- liis mirasi right, and as more than twelve

! elapsed between that date and the bring-

■ present suit, the plaintiff's right as re-

-' the muth to recover immediate posses-

tiarred. Held, further, that the plaintiff's

recover three years' ai rears of rent as

i>y the mirasi grant w as not affected, as the

28 of the Limitation Act (XV of 1877^ was

-uish the plaintiff's right, as claimed by

treat the grant as null and void. Vithal-

j-i.'Vj V. Narayan Daji Thite

I I. L. R. 18 Bom. 507

Suit for decla-

nt lands are klwtir— Allegation of fraud —
^Mhment Act {Bom. Act I of l'6o). A
loti village, consisting of khoti and dhara
1 'nged to two co-sharers, P and D ; each of
-sed kabuliats to Government in alternate
I 1862-6o, when P on account of his
1 age allowed D to pa~s the kabiliat
t'ar. 1,1 the year 1867 the survey
lit having been introduced under

Act I of 1865, D refused to pass
Jal kabuHat. Government thereupon

village under attachment, which was,

removed in the year 1S78 on his passing

'led kabuliat. the management of the

^as restoied to him and certain surplus

,„,., ^"'^® handed over to him by Government.

in 11 year 1881 P sold his share m the khoti to S,

Art. 144— COT! <d.

2. ADVERSE POSSESSION— co/Urf.

who brought a suit against D and his brother to
recover a half share of the abovementioned profits.
D resisted the claim, denying that either P or his
assignee had any right to the khoti or to share in the
khoti profits. The suit was dismissed on a technical
ground. Subsequently in the years 1881 and 1884,
D got decrees against the actual tenants declaring
that the lands, the subject-matter of the present
suit, were his dhara lands, and in accordance with
those decrees the revenue authorities made corre-
i-ponding entries in the revenue records. In the year
1888-89 <S' passed a kabuhat as a half sharer in the
khoti, and enjoyi'd the khoti profits for one year.
Afterwards plaintiff No. 1, one of S'< sons who died
in the meanwhile, having passed the aimual
kabuliat in 1892-93 and again in 1894-95 and
having failed during both the years to recover
khoti profits from the lands in dispute, he filed
the present suit in August 1895 for a declaration
that the lauds were khoti, and that the
defendants had fraudulently got them entered
in the revenue records as dhara. The plaint-
iff stated that they learnt of the defendant's
fraud in the year 1895, and sought to recover
a share of the khoti profits for 1892-93 and 1894-95.
The defendants contended, inter alia, that the claim
was time-barred. Both the lower Courts allowed
the claim for a'declaration, holding that it was not
time-barred, the first Court holding that the cause
of action accrued to the plaintiff's in 1888-89,
when S first entered on the management, and the
Appeal Court holding that the cause of action
accrued in 1881 and 1884, when the dhara entries
were made in the revenue records, and that, but
for s. 18 of the Limitation Act (XV of 1877), the
plaintiff's suit would have been time-barred even
under Art. 144, Seh. II of the Act. On appeal to
the High Court : — Held (reversing the decree), that
the claim was barred by limitation. The plaintiffs '
cause of action arose in the year 1881 at the date
of S's purchase. Neither S nor his sons (the
present plaintiffs) having ever been in possession of
any share of the profits of the lands in dispute, not
even in the year when S passed the kabuliat and
managed the village, and their right to such posses-
sion being throughout denied by D, the claim was
beyond time. . HeUl, further, that the provisions of
s. IS of the Limitation Act (XV of 1S77) did not
apply. Dho.vdo Ramchandra v. Vasideo Sakha-
ram So-MAN . . I. L R. 24 Bom 104

122.

Estate in the

possession of the widow of the last male survivor of a
family co-parceiMry — Possession first obtained through
Iter, held, adversely to the heirs, by the widow of
another co-parccner. The plaintiffs were in the line
of the heirs of an ancestor from wht>m. through his
daughter, their grandmother, they ^^ ere descendants
in the third generation. In 1888 they sued the
defendants, who were in possession to recover what

11 c 2

( 7399 )

DIGEST OF CASES.

{ 7400 )

LIMITATION- ACT (XV OF 1877)— con^d.

Schedule II— contd.
Art. 1A4:— contd.

2. ADVERSE POSSESSION— conW.
had been part of the family estate, alleging title
according to the Mitakshara. A question whether
the plaintiffs were not barred by hmitation depended
on whether the now disputed part of the family
property had not been from the year 1843 in the
adverse possession of the widow of one of their
great uncles. This widow, after transferring that
part of the property to a person through whom the
defendants made title, died in 1886. She was the
widow of the elder of two brothers, the last co-
parceners of the family, who, being sons of the said
ancestor, had at one time held the family estate.
This elder brother, her husband, died in 1826. His
younger brother survived him, and, having taken
the whole estate by survivorship, died in 1833,
leaving a widow, who died in 1843. The latter
widow, having inherited the estate from her husband
for her life-estate, there being no co-parcener left,
gave a share of her inheritance to the abovemen-
tioned widow of the elder brother. So assigned,
the property remained, with the addition in 1843
of the share which the younger brother's widow had
kept for herself, in the possession of the
other widow, the one first abovementioned. After
many years, this widow transferred it to her own
brother, of whom the present defendants were the
heirs and representatives. It was decided below
that it had not been in the right of a Hindu widow
taking by inheritance from her husband that the
elder brother's widow had obtained, and had dealt
with, the property. A widow's estate for life never
constituted a possession adverse to the reversionary
heir, but here the widow, through whom the defend-
ants claimed, had been from 1843 in adverse pos-
session for more than twelve years. The suit was
therefore barred under the Limitation Act (XV of
1877). This judgment was affirmed by their
Lordships. Mahabik Pershad v. Adhikari
KoER . . . I. li. R 23 Calc, 942

123.

Purchase by

conditional sale — Vendor remaining in possession as
tenant holding over — Possession not shown to be
adverse. In 1866 the plaintiff bought the lands in
suit by conditional sale-deed, repayable in ten years,
from a third party who, under the same document,
became his tenant of the said lands. Before the
expiration of the ten years the vendor died, and his
widow sold her right in the lands and gave possession
to G, the transfer or of the second defendant. On
the expiration of the ten years, the sale to plaintiff
became absolute, and G continued to hold over after
the expiry of the lease, but there was no evidence to
show that 6".s possession ever became hostile to
plaintiff: — Held, that the fact that plaintiff's title
ripened into fuU ownership on the expiration of the
ten years provided by the sale-deed did not alter
the character of the tenure of G, that his possession
never became hostile to plaintiff ; that G acknow-

[HIMITATIOW ACT (XV OF 1877)— con
Schedtde II— conid.

Art. 144— conid.

2. ADVERSE POSSESSION— cojiW.
ledged the plaintiff's title in his sale-deed d-d
1881 to the second defendant ; and that the it
was not barred. Anantha Bhatta v. Hoi a
Deyyit . . . I. L. R. 19 Mad. ;7

124.

Landlord d

tenant — Permanent tenant — Notice to pay enhcA
rent or quit the land — Denial of landlord's rig to
enhance rent — Suit to recover enhanced n-
Limitation Act, s. 23. An inamdar gave his r-
manent tenant notice to pay enhanced ■'.
or quit the land on a certain date. The ;
denied the Uability to pay enhanced rci.
stating that he held the land on payment of ( ■
ment assessment only, refused to quit. The iiii-
dar, more than twelve years after the date men n-

I ed in the notice, sued the tenant to recover enhaed
rent:— Held, that the plaintiff's (inamdar'sj ht
to enhance the rent and to recover the Ian in

! default of paj^ment of such rent was barred by 1 it-
ation, the tenant, so far as the right was conce d,
having been holding adversely to him for more an
twelve years. Held, a.ho,th&t s. 23 of the ]«•
tation Act (XV of 1877) had no applicaticto
the case. Gopai. Rao Krishna Rajopadh t.
Mahadevkao Ballal Mule

I. L. E. 21 Bom. )4

125.

Suit for )>■

session of property purchased at auction-sm •'»
execution of a decree — Effect of formal possess''^ •'•<
saving limitation — Possession given undti
Procedure Code, 1SS:2, ss. 318 and 319.
possession of property purchased at auctioi
execution of a decree is formally given by th
under s. 318 or s. 319 of the Code of Ci^•il Pi'
although the actual possession may remain v
judgment-debtor, the date of the granting
formal possession forms, as against the jiii
debtor a fresh starting point for limitation ir.
of a suit for possession of the property sold i
by the auction-piu-chaser or his represci!
Juggobundhu Mukerjee v. Ram Chunder i
I. L. R. 5 Calc. 584, and Joggobundhu .V
Pumanund Gossami, I. L. R. IH Calc. 530, in
to. Mangli Prasad v. Dkbi Din ^^

I. L. R. 19 AIL|»

126.

Aliirmi

Hindu widow — Subsequent adoption by v
Suit by the adopted son to recover possession—
ation Act, Sch. II, Arts. 140 and 161. The ( i
widow of a separated Hindu, being in possi >
his property as his heir, ahenated it in the ye^'
Twenty years afterwards (13th May 18^^
adopted a son, who in 1890 brought the presi ;
to recover the alienated property :— Held, tli. __
suit was not barred by hmitation. Per Jj^'^
/.—Whether Art. 140 or Art. 144 of Sch. H '^^f
Limitation Act (XV of 1877) apphed to the cas

thf»

( 7401 )

DIGEST OF CASES*

( 7402 )

J ITATION ACT (XV OF 1877)-
Schedule II — contd.

contd.

Art. 14

-conUl.

2. ADVERSE POSSESSION— con^rf.

not barred ; for if it fell under Art. 140, the

II of the defendants adverse to the widow

I afiect the plaintiff's rights, and if it fell,

II. d to do, iinder Art. 144, the possession of

ndants did not become adverse to the

until he became entitled to possession of

rty upon his adoption. Srinath Kur v.

Kumar GJiose, I. L. R. 9 Calc. 034, and

/' Dassia v. Manick Chandra Joaddar, I. L.

■<dc. 791, followed. Per Candy, J.— The

governed by Art. 144, under which the

I i limitation began to run from the time when

i--;ission of the defendants became adverse to

I.iiitiff on his adoption in 1888. Assuming

possession of the defendants was adverse to

V. that fact did not affect the plaintiff, who

Icrive his right to sue from or through her.

2SA.HAYAN JOSHI V. BaLAJI RAGHUNATH

I. li. R. 19 Bom. 809

Ijr. Suit hy shebai^

ssession of debutter property alienated by former

•.t — Hindu law. Endowment — Position of Hindu

iioiLimitation Act, Art. 1S4. A suit was brought

2 by the shebait of an idol for recovery of

possession of mokurari ])roperty belonging

!■ '1, and for a declaration that a dar-mokurari

I l)y the preceding shebait in 1857 in respect

lukurari property, the executant professing

~ guardian of her minor son, and a kobala

1 t)y her son in respect of the same property

\^ ere invalid and inoperative. The plaint-

opointed shebait in 1888: — Held, that the

barred by limitation, and it came either

It. 134 or under Art. 144 of Sch. II of

■M Act (XV of 1877). Held, that the

I juridical person capable of holding pro-

; rid the possession of the defendants, who

— ' il to derive title not from the idol, but

. its rights, must be taken to have become

ui the idol from the dates of the two

is; and, although it is true that an idol

'!<>perty in an ideal sense, and its acts

to any property must be done by or

ts manager or shebait, yet that does not

it each succeeding manager gets a fresh

i.ir as the question of limitation is concerned,

i nund of his deriving title from any previous

Shidessuree JJabia v. Mothoora NatJt,

13 Moo. I. A. 270 ; 13 W. R. P. C. IS ;

Kumari Dcbya v. Golab Chund Baboo, 14

450 : 23 W. R. 253 : L. R. 2 I. A. 145 ;

V. Nilukandan, I. L. R. 7 Mad. 337, ap-

NiLMONY Singh v. J.\oabandhu Roy

I I. li. R. 23 Calc. 536

^l*- Formal pos-

Effect of formal pos,s€.s.tion «*• againM a
I ■'on other than the judgment-debtor — Civil
r< Code, 1S82, s. 319. Held, that whatever

LIMITATION ACT (XV OF 1877)— con«.
Schedule 11— contd.

Art. 14^4r— contd.

2. ADVERSE POSSESSION— con<f/.
might be the effect of the delivery of formal posses-
sion under s. 319 of the Code of Civil Procedure as
against the judgment-debtor himself, such formal
delivery of posse-sion will not take effect as actual
possession as against a purchaser of the rights of the
judgment-debtor who was previously obtained
actual possession. Mangli Prasad v. Dfhi Din, I.
L. R. 19 All. 499, referred to. Naraix Das v.
Lalta Prasad . . I. L. R. 21 All. 269

129. Diluviation —

Subordinate tenure — Suit for recovery of possession of
land — Rp-fortnation on the site of plaintiffs' villages —
Burden of proof. In a suit brought by the plaintiff
on the 10th December 1888, for recovery of posses-
sion of three plots of land, on the allegation that
the lands in dispute were re-formations on the
site of their villages of K and M, which were let
out in patni and darpatni to third parties in 1868,
and that the rights of the patnidar and the dar-
patnidar were re-acquired by them in the years
1878, 1880, 1883, and 1892, the defence was that
the suit was barred by hmitation, and that the
lands were not re-formation, but accretion to the
defendants' village of C : — Held, that, inasmuch as
a grantor of a subordinate tenure is not bound to
sue for trespasses committed against his tenant
during the continuance of the tenure, and that his
right of action accrues Avhen the tenancy comes to
an end, the suit was not barred by hmitation. Held,
also, that, as the plaintiff's title to, and possession
of, the villages of K and M, down to the time of
their diluviation, was not denied, and as it was
found that the disputed plots of land were part
of the said villages, it was not incumbent on the
plaintiffs to prove possession of the lands in
dispute previous to the diluviation, but the onus
lay on the defendants to prove adverse possession
for more than twelve years prior to the institu-
tion of the suit. Woomcsh Chunder Goopto v.
Raj Narain Roy, 10 W. R. 15, and Davis v.
Abdul Hamed, <S' IF. B. 55, referred to. Gcnga

KUMAK MiTTER V. ASHUTOSH GOSSAMI

I. L. R. 23 Calc. 863
130. Suit by heredi-
tary trustee to set aside invalid alienation — Alienation
of {yroperty of religious endowment. In a suit
brought by an hereditarj- trustee to set aside certain
alienations of the trust property made by his pro-
deccssorsin title, and to have it declared that he was
entitled to the sole management of the trust pro-
perty, it appeared that the property was held jointly
by plaintiff's father and by the mother of the first
defendant. On the 17th September 1868, the first
defendant's mother alienated her right to the joint
management to the first defendant, who, however,
never got possession until the 13th Fcbruarj' 1869,
on which date plaintiff's father alienated his right to
joint management to the first defendant ; the

( 7403 )

DIGEST OF CASES.

( 7404 )

LIMITATION ACT (XV OP 1877)— con<d.

Schedule II — conti.
Art. 144— con<d.

2. ADVERSE POSSESSION— cow^rf.
plaintiff was born in 1875 : — Held, that the heredi-
tary right of plaintiff was a personal right accruing
on the death of his predecessor, I'iz., his father, and
that, as limitation ran from that date, the suit was
not barred. Velu Pandaeam v. Gnanasambanda
Paijdaea Sannadhi. Gkanasambanda Pandara
Sankadhi v. Vjelu Pandaeam

I. L. E. 19 Mad. 243
In the same case in the Privy Council : — Held,
that the possession dehvered to the purchaser was
adverse to the vendors. After the twelve years'
period of hmitation, which expired in the lifetime
of the vendor, whose son now sued to recover the
hereditary managership and possession of the lands
of the endowment, the suit was barred under
Limitation Act (XV of 1877). There was no dis-
tinction between the claim to the office and the claim
for the property in regard to the application of Art.
124 of Sch. II of the Act and of s. 28. If there were ,
Art. 144 would apply to the claim for the property.
In order to fix the starting point for limitation at a
date later than that of the transfer, it was contended
that the office and title were held in successive life-
estates. If that contention had been right, the
period of limitation would have commenced at the
death of the plaintiff's father. The Judicial Com-
mittee were of opinion that it must be assumed that
the origin of the endowment was by gift from the
founder, and that, in accordance with the ruling in
Juttendromohnn Tagore v. Ganendromohun Tagore,
L. R. I. A. Sup. Vol. 47 : 9 B. L. R. 377, heri-
table estates could not be created to take effect
as successive hfe-estates and inconsistently with the
general law. This applied to both the office and the
property : — Held, that the law of inheritance did not
permit the creation of successive life-estates in this
endowment ; the above ruhng being also contrary
to the judgment in Trimbak Bawa v. Narayan
Bawa, I. L. R. 7 Bom.. 1S8 ; and that the plaint-
iff could not claim to have been entitled other-
wise than as heir to, and from, and through his
father, in whose hfetime the title had been extin-
guished by lapse of time and adverse possession of
the defendant. Gnanasambanda Pandaea San-
nadhi V. Velxj Pandaeam

I. li. B. 23 Mad. 271
L. K. 27 I. A. 69

131. Suit to set aside

alienation of property of religious endowment-
Trustee's title barred by adverse possession as against
his predecessor. The holder of the office of trustee
in a temple succeeded to that office in 1893. His
predecessor had remained in office for over twelve
years, but had never sued for the recovery of certain
lands. A suit being now brought to recover the said
lands on the ground that they provided the emolu-
ments of the office of meikaval in the temple :—
Hdd, that the suit was barred by hmitation, the

LIMITATION ACT (XV OP 1877)-co»fef.
Schedule II — conid.

— Art. 144 — contd.

2. ADVERSE POSSESSION— coji/rf.
adverse possession held during the previous office
holder's time barring his successor. C'hidambar.4:
Chetti v. Minammal . I. L. R. 23 Mad. 43l
See Radhabai v. Anantrav Bhagwant Desh
PANDB . . . I. L. K. 9 Bom. 19£

132. ~- Symbolical possession. Th

j plaintiff's precedessor in title, one L N, acquii
j ed the share of 2 annas and 8 pies in certai-i

mouzahs by purchase at a sale held in execi

tion of his own decree against one H N, B,i
1 in September 1874 obtained symbolical possessiorj
j In December 1874, H N and his co-sharers grantCi
! a perpetual lease to one G, reserving a nominal ren
I Subsequently L N brought a suit for possession (j
I the 2 annas and 8 pies share against H N and his cd
j sharers, and after the death of L N the plainti

obtained a decree. In March 1882 the plainti,
, obtained symbohcal possession in execution of thi
I decree. On the 29th January 1887 one B M pu
j chased at a sale in execution of a decree against ,

the right of the latter as lessee, and obtained thi?ougi

the Court symbolical possession of the same. In
I suit brought by the plaintiff against B M and G I
I recover possession of the 2 annas and 8 pies share i
I December 1887, that is, thirteen years after th
: grant of the lease by H N and his co-sharers to G .-'
i Held, thav the suit was barred by hmitation und!
I Art. 144 of the Limitation Act. Held, also, thattll
I lease purporting to be a perpetual lease withoi'
I reversion to the grantors, and no rights reserve'
j to them, but only a nominal rent, symbolical pp!
i session as against the grantors would not be effectiil
j as against the lessee and thus save the bar of limit

tion. Bejoy Chunder Ba7ierjee v. Kally Proscmij
I Mookerjee, I. L. R. 4 Calc. 327, referred to. Goi

SAMi Dalmar Puei v. Bepin Behary Mitter !
j I. L. B. 18 Gale. 52

} 133. Symbolical p\

I session. The plaintiff purchased the land in dispu

j on 20th April 1876 at a Court sale held in executi(|

of a decree against defendant's father, and obtaini.

I symbohcal possession through the Court on 7j

[ September 1876. At the date of the sale, and subfj

t quently thereto, the defendant was in actual possii

sion of the land in question. On 5th Septenib

1888 the plaintiff filed the present suit to recoV|

possession of the land : — Held, that the suit Wi

time-barred, the defendant's possession havi;|

been adverse to the plaintiff for more than twel

years. Lakshman v. Mortt

I. L. B. 16 Bom. 7{j

134. Symbolical W

session — Judgment-debtors remaining in actual pq
session — Subsequent attempt by purchaser to w'
possession — Resistance or obstruction to execvitcm j
decree — Application to remove obstruction converu^
into a suit under s. 331 of Civil Procedure Code, 1°\

( 7405

DIGEST OF CASES.

( 7406 )

U ITATIOM- ACT (XV OF 1817)— contd.
Schedule 11— contd.
Art. 144— contd.
2. ADVERSE POSSESSION— C07)<rf.
—jnitation Act {XV of 1S77), s. 3, and Sch. II,
An 13S— Civil Procedvre Code, 1S82, s. 331.
'■ Inirttiff purchased the property in dispute at
i<in-sale in execution of a decree, and on the
luust 1877 he took formal possession, but the
it -debtors remained in actual possession.
I Sth September 1889, the plaintiff proceeded
' possession, but was obstructed by the
lit, who alleged that he had purchased the
from the judgment -debtors in 1888. The
! then applied for tlie removal of the defend-
-truction, and his api^lication was register-
nit under s. 334 of the Civil Procedure Code :
■ liat the plaintiff's claim was barred by hmi-
^^'hen his application was converted into
iider s. 331, the rights of the parties had to
luined as if an ordinary suit for possession
11 instituted against the defendant, and
t. 138 or Art. 144 of the Limitation Act (XV
apphcd. In either case the defendant
ail himself of the judgment-debtors' pos-
. « hi'.h was adverse to the plaintiff. Namdev

I :i HAXDRA GOMAJI MaRWADI

I. L. B. 18 Bom. 37

Symbolical pos-

-Effect of symbolical possession against third

Auction-purchaser — Sight of auction-pur-

' tack on his oun possession to that of jiulg-

!'>r. The property in dispute belonged

He sold it to A on the 25th April 1873, but

i ut the vendee into possession. On the 18th

^^8, A sold the property to the plaintiff. On

June 1883, in execution of a money-decree

li. the property was put up to sale as his, and

liased by the defendants, who were put into

II by the Court on the 26th March 1885.

28th March 1885, the plaintiff sued A

< wife (Z) being then in prison) to recover

>n of the property. A decree was passed,

1 on of which he obtained symbohcal posses-

' ugh the Court on the 8th February 1886.

le sought to take actual possession, he

.>ted by the defendants. Thereupon the

• tiled the present suit, on the 19th December

to obtain actual possession of the property

the defendants : — Held, that the suit was

I under Art. 144 of the Limitation Act (XV

The defendants had a right to tack on the

t their own adverse possession as against the

■ a to that of i)'s adverse possession as against

I he symbolical possession obtained by the

'iff did not break up the continuity of the

se possession of the defendants and the person

gh whom they derived their title. Haiuivan

(ivRAM . . I. L. R. 19 Bom. 620

^' . Suit for posses-

of land by an auction-purchaser, who obtained
dical possession — Code of Civil Procedure, 1SS2,

LIMITATION ACT (XV OF 1877)— co7i<i.
Schedule II — contd.

Art. 144— coH<rf.

2. ADVERSE POSSESSION— cowirf.
ss. 318 and 319— Limitation Act, Art. 138. In
a suit for possession of land by an auction-purchaser,
who had obtained symbolical posse.ssion, the defend-
ant objected that the suit was barred by limitation,
it not having been brought within twelve years from
the date of the auction-purchase : — Held, that Art.
144, Sch. 11 of the Limitation Act (XV of 1877),
applied to the case and that, as the suit was brought
within twelve years from the date when the auction-
purchaser obtained symbolical possession, it was not
barred by hmitation. Hari Motiax Shaha v.
Baburali . . . I. li. R. 24 Calc. 715

137.^ — Symbolical pos-
session— Effect of symbolical possession as between
judgment-creditor or his assigns and judgment-
debtor or his heirs — Suit by purchaser from judgment
creditor to recover possession from heir of judgment
debtor. As between the judgment-creditor or his
assigns, on one side, and the judgment-debtor or his
heirs, on the other, symbohcal possession is as good
as actual possession to give the (judgment creditor's)
purchaser or his assigns the right to bring a suit for
possession within twelve years from the date of such
symboUcal possession. Mahadeo v. Parashram
Bhawakchand (1900) . I. L. E. 25 Bom. 358

138.

Attachment by Magis-

trate— Continumi-ce of possession — Payment of
rents and profits to rightful owner during attachment
by Magistrate under s. 146. Criminal Procedure
Code. If the person, who is afterwards found
to have title to a property, receives from the Magis-
trate the rents and profits thereof for the period
during which it is held under attachment by the
latter, under the provisions of s. 146, Criminal
Procedure Code (Act X of 1882), he is held to be in
constructive possession thereof until withdrawal
of such attachment, and hmitation does not Fun
against him during such period. Jagubaxdhtt
Bhattacharjee r. Hari Mhhax Rav

1 C. W. N. 569

139. Suit by karnavan to

recover lands alienated by previous kar-
navan. The plaintiff sued as ilic karnavan of
a ilapila tarwad to recover lands in the posses-
sion of the defendants, who were a donee from,
and the descendents of, a previous karnavan and
their tenants. It appeared that the alleged previ-
ous karnavan had died less than tw<^lve years
before the suit was filed, but more than twelve
years before tie joinder, as a supplemental defend-
ant, of one to whom he had conveyed certain
property bj' way of gift five years before his death :
— Held, that the suit was barred by limitation as
against the donee above referred to, her possession
having been adverse to the tarwad since the date
of the gift. Byathamma v. Avi'lla

I. L. R. 15 Mad. 19

( 7407 )

DIGEST OF CASES.

( 7408 )

LIMITATION ACT (XV OF 1877)— confi.
Schedule II — contd. ?■

Art. 144 — conld.

2. ADVERSE POSSESSION— con<(Z.

140. . Gijt of a life-

interest. The karnavan of a Malabar tarwad ex-
ecuted an instrument described as a vasyat, where-
by he made a gift of a life-interest in certain self-
acquired property, to come into operation at once in
1854. The members of his tarwad acquiesced in this
disposition of the property. The donor died in 1859,
and the donee in 1880. In a suit brought in 1886 by
his successor in the office of karnavan to recover
the property : — Held, that time began to run for
the purposes of limitation from the death of the
donee, and, therefore, the suit was not barred.
KuTTYAssAN V. Mayan . I. L. K. 14 Mad. 495

141.

Suit to recover

estate granted by predecessor as service tenure ivith rent
reserved. In a suit brought in 1886 by a zamindar
to recover an estate granted by his predecessor to
the predecessor of the defendant on a service tenure
a small money rent being also reserved, it appeared
that in 1864 the right of the plaintiff's predecessor
to rent had been established by suit, but there was
no evidence that the service was then dispensed
with, but in 1885 it was intimated to the defendant
that the service was dispensed with and a notice to
quit was given to him ; the option of holding the
estate at an enhanced rent was, however, given to
him at the same time : — Held, that the suit was
not barred by limitation, no adverse possession being
shown. Mahadevi v. Vikrama

I. L. R. 14 Mad. 365

142. Suit for posses-

sion— -Purchaser at a patni sale under Reg. VIII
of 1S19 how affected by adverse possession prior
to date of sale. A person who has held possession of
property adversely against a former proprietor
cannot be allowed, in a suit for possession, to set up
Buch adverse possession against a person who has
purchased the property at a patni sale, held under
Regulation VIII of 1819, within twelve years from
the date of the institution of the suit. The pur-
chaser is entitled to the patni free from all incum-
brances and in the condition in which it Avas
created. Womesh Chunder Goopto v. Raj Narain
Roy, 10 W. R. 1-5, referred to. Ivhantomoni Dasi
V. Buoy Chakd Mahatab I. L. R. 19 Gale. 787

143.

Burden of proof. The

plaintiff, who was the sister of the defendant,
sued in 1888 to recover from him a moiety of
a paramba purchased by them jointly in 1877. In
1878 the plaintiff went to live elsewhere, but, from
time to time, returned and spent a few days with
the defendant on the land in suit. The defendant
pleaded limitation : — Held, that Limitation Act,
Sch. II, Art. 144, applied to the suit, and the
burden of proving adverse possession lay on the
defendant. Alima v. Kutti

I. L. E. 14 Mad. 96

LIMITATION ACT (XV OP 1877)-«onfc
Schedule 11— contd.

Art. 144— cofi<d.

I 2. ADVERSE POSSESSION— core<(i.

I 144. and s. 19~3Iad. I

II of 1802, s. 18— Starting point of limitatim.

Acknowledgment — Adverse possession of pari

interest in land. Suit by the zamindar of Shi

ganga to recover certain land as part of his zaro.

[ dari from the defendants who claimed title uncle,

j deed of gift, dated in 1830 from the person ther!

I possession of the zamindari. The istimar zamin •

I died in 1829. After his death, certain persons v,

j in possession without title ; butin February ];

j his daughter, iTiV, obtained a decree in the Pr.-

j Council against the person then in possession of m

j zamindari, in execution of which she was put iii

possession. In 1876 she brought a suit against 'i

present defendants to recover the property now:

1 question ; but that suit was withdrawn on a petit t

I presented by her vakil stating that the case had b(

j compromised and praying that the suit be strucl<

the file, which was accordingly done. She died

1877, and the plaintiff was her successor. It appe

ed that poruppu was always paid for the la

now in cpiestion : — Held, (i) that the payment

poruppu did not prevent the possession of '

defendants from being adverse to the plaintifif,

possession of a limited interest in immoveable p

perty may be as much adverse for the purpose'

barring a suit for the determination of that limi-

interest as is adverse 230s,session of a compl

interest in the property to bar a suit for the wh

property; (ii) that the date of the Privy Cour.

decree could not be taken as the starting point

limitation ; (iii) that the transactions in referei

to the suit of 1876 did not amount to an acknc

ledgmentof thezaminclar's title, and did not giv

new cause of action to her successors ; (iv) thati

cause of action having arisen to the then right

owner of the zamindari in 1830, the plaintr

suit was barred by limitation. Sankarak ,

Periasami . . . I. L. R. 13 Mad. 4''

145

and Art. 123— Distrii'

sJiare under Mahomedan law — Suit for passes-
A Mapilla, alleging that certain " family propert},
had been enjoyed by herself and the defendai!
(who were her relations on the mother's side)
common till one year before suit, when f
was excluded from possession, now sued to reco
the share to which she claimed to be enlit
under the Mahomedan law of inheritance,
appeared that the property had been acquired in i
lifetime of the plaintiff's maternal grandfather, "
had died more than thirty years before suit, ;i
that one of his sons had obtained a decree for
share of it in a suit to which, among others, ■
plaintiff and the father of the present conttv<t;
defendants were parties, and that a plea then rau
by the latter to the effect that the property had be,
acquired by him was overruled. The plainti|
mother died about twenty years before the presf'

( 7409 )

DIGEST OF CASES.

( 7410 )

Imitation act (XV of is??)— con^d.

Schedule ll—cmtd.
— Art. 144— cowW.
2. ADVERSE POSSESSION— con^ti.
irp : — Hdd, by the Full Bench, that the plaintiff's
«|se of action arose not from the date when her
ejjre became deliverable on the death of the per-
B'js to whom the property originally belonged, but
Other exclusion from enjoyment of the property,
all that the suit was governed by Art. 144, and not
^1. 123, of the Limitation Act, and was not barred
I limitation. Abdul Kader i'. Aishamma

I. li. R. 16 Mad. 61

a8. Deed given by

^ or to creditor assigning or appropriating renU till

^ was paid — Possession of debtor by tenants.

'^ire under an instrument a debtor allotted to his

4a litor his aivaj on account of deshpande hak and

iiai recoverable from the villages and undertook

V> to meddle till the aivaj was paid, and the

mrument did not describe the lands mentioned

Ht ein by metes and bounds, but only as being in

ib occupation of certain persons paying so much

re , and contained a clause that the aivaj of RG3

ii/l sum total of rents) had been allotted, and that

th 'reditor might take kabuliats from the occupants

anlmake the recoveries : — Held, that Art. 144, Sch.

H' the Limitation Act (XV of 1877). applied to the

iplaintiff's right of possession, and the

1 at not being in adverse possession for twelve

;>iior to the institution of the suit, the

is claim was held not barred. Hanmant

I ANDRA Deshpande V. Babaji Abaji Desh-

I. L. R. 16 Bom. 1?2

J:7. . M-ortgage— Redemption— Ad-
possession as against mortgagor — Possession
■'I under an agreement uith mortgagee —
to mortgagor of such possession. The
1 filed this suit, to redeem a mortgage,
•-session of certain land, dated 18th October,
''he plaintiffs were the daughters and
•ti of the mortgagor Khutubsha (the widow
Ivondi Aga). The first defendant was the
'11 and heir of the mortgagee (Nageshrao).
und and third defendants were nephews of
ii Aga. They denied that the plaintiff, being
lale, had any right to the property, and they
'd that they themselves had been in possession
1885 under an agreement with Nageshrao, the
ial_ mortgagee ; and they contended that the
" 9 claim was therefore now barred by limita-
t appeared that in 1885 defendants 2 and 3
imed to be the heirs of Kondi Aga, the
1 of the mortgagor, and had entered upon
1. The mortgagee thereupon filed a suit
them under s. 39 of the Dckkhan Agricul-
"i|S Rehef Act (XVII of 1879), which, however,

cttled by an agreement before the conciliator
i 3l3t August, 1885, whereby defendants 2 and
lertook to pay off the mortgage and it was
1 that they should remain in possession of the
This agreement was filed as a decree on the

LIMITATION ACT (XV OF 18^^ )~contd.

Schedule lI~conid.
Art. 144— conW.

2. ADVERSE POSSESSION— conti.
27th November, 1885, under s. 44 of the Act. The
last instalment of the mortgage debt was paid to
the first defendant by defendants 2 and 3 in Sep-
tember, 1897. The plaintiffs had no notice or know-
ledge of any of the abovementioned proceedings.
On the 5th October, 1897, the plaintiffs filed this
suit, to redeem the mortgage of 1866 and to recover
possession of the lands. The lower Courts held that
the plaintiffs were the heirs, but that the suit was
barred by limitation under Art. 144 of Sch. II to the
Limitation Act (XV of 1877), inasmuch as defend-
ants 2 and 3 had been in adverse possession for
more than twelve years. On appeal to the High
Court : Held (reversing the decree of the lower
Court, and remanding the case), that the suit was
not barred. Tne possession of the defendants was
not adverse to the plaintiffs, inasmuch as there was
no notice or knowledge, or circumstance that could
have given notice or knowledge, to the plaintiffs
(mortgagors) that the defendants' possession was
in displacement of their rights. They had no reason
to know that their rights were invaded, and until
they had such reason there could be no necessity
for them to take action. Tarubat v. Venkatrao
(1902) . . . . I. L. R. 2? Bom. 43

148. . Suit to recover land — Claim

that defendants were holding over as yearly tenants
on expiration of lease — Preinous suit on another
lease — Claim by tenants as permanent lessees —
Dismissal of suit, except as to rent — Payment
of rent since — Limitation — Prescriptive right as
permanent lessees. Plaintiffs sued on behalf of
their devasom for land, basing their claim on a lease
of 18G2, for four years, and alleging that tlie defend-
ants had been holding over as tenants, and paying
rent as such, since the exi)iration of that 1»rm in
1866. In 1881, plaintiffs' devasom has sued to
eject the defendants from the same land, basing
their suit on an alleged lease of 1865. The defence
was set up by the predecessor of the present defend-
ants Nos. 4 to 7 that he was a permanent tenant
at a fixed rent. That suit was dismissed on the
ground that the alleged lease of 1865 had not been
proved, but the plaintiffs obtained a decree for the
rent which the then defendant admitted to be due
by him as a permanent tenant : — Held, thAt, even
as.suming that the defendants had held over as
yearly tenants, after the eX|»iration of the allesed
lease of 1862, such tenancy must have been deter-
mined prior to plaintiffs' suit in 1881. The pos.ses-
sion of the defendants subsequently to that suit was
therefore, according to the plaintiffs' case, that of
trespassers claiming a permanent right of tenancy.
The payment of rent under the decree in the suit of
1881, and subsequently at the same rate, could be
construed only, so far as the defendants were con-
cerned, as payment by them of the rent admitted by
them to be due as permanent tenants, and not as &

7411 )

DIGEST OF CASES.

( 7412

LIMITATION ACT (XV OF 1877)— confo?.

Schedule II — contd.
-^ Art. 144 — concld.

2. ADVERSE POSSESSION— concZcZ.
renewal of the alleged lease of 1862, with a variation
of the amount of rent. Inasmuch as the defendants
had set up their adverse possession at a time when,
according to plaintiffs' case, their yearly tenancy
had been determined, and such adverse possession
had continued down to the date of the present suit,
namely, for a period of more than twelve years the
defendants had acquired, by prescription, a right to
hold possession as permanent tenants at that rent.
Seshamma Shettati v. ChicJcaya Hegade, I. L. E. 25
Mad. 507, 513, referred to. Parameswaeam Mrii-
BANXOO V. Keishnax Te>-gal (1902)

I. L. R. 26 Mad. 535

149. _ Arts. 144 and

139 — Landlord and tenant — Ejectment — Plea by
tenant of adverse possession. The plaintiff sued to
recover certain land, alleging that the defendant
was in occupation as his tenant. The defendant
pleaded adverse possession, and contended that the
suit was barred by limitation. The plaintiff proved
that up to 1879 the defendant, admitted the plaint-
iffs' ownership of the land. The two lower Courts
found that the land was the plaintiff's, but held
that the suit was barred : — Held (reversing the
decree), that, the defendant having admitted the
plaintiff's ownership up to 1879, it lay upon him to
show when the alleged adverse possession under
Art. 144 commenced, or under Art. 139, when the
tenancy terminated. As the land was shown to be-
long to the plaintiff, and defendant had not proved
any agreement under which he could remain in
possession after plaintiff had signified his intention
to resume, he must surrender possession. He was
entitled to remove the superstructure of houses
which he had erected on the land. Taxshibhai
Naea>-bhai v. Raxchhod Gobae (1902)

I. L. R. 26 Bom. 442

LIMIT ATIOW ACT (XV OF 1877)— conJi.
Sehediile II — contd.

Art. 145 — concld.

to repay the money on demand and not from the
date of the demand, and therefore the suit wt»
barred. Paebati Charan Mookeejea r. Rak-

NAEAYAN MaTILAL

5 B. L. K. 396 : 16 "W. E. 164 note

But see Brammamayi Dasi v. Abhai Chaea>-
Chowdhey . 7 B. li. R. 489 : 16 W. E. 164

I 2. Deposit of Gov-
't eminent revenue with Collector pending partitio%—,
Accoxint, adjustvxent of. During the pendency of fi
batwara, the plaintiff purchased a share in an ijmal; '
j mehal ; and as the proportion of the Government
j revenue of each shareholder had not been ascer-
1 tained, the shareholders, including the plaintiff's
: vendor, and subsequently the plaintiff, paid to the,
j Collectorate what they thought due from them on
I account of Government revenue. Upon an account
stated in 1857 it was ascertanied that, after all
! necessary deductions, a sum of E655 was due to the
j plaintiff who in 1864 appUed to the Collector for
payment of the amount ; but the apphcation wss^
rejected, as the money had been previously drawn,
I away by certain creditors of his vendor. In 1867|
j he sued the Collector for recovery of the amount,
I The defence set up was that the suit was barred bj
I lapse of time : — Held, that the Collector was not t
I depositary under the meaning of cl. 15, s. 1, Act
i XIY of 1859 ; that the cause of action did not aria,
! on the demand for, and refusal of, payment, but 01,
; adjustment of the account ; and that the case canK,
under cl. Ifi, s. 1. Gabixd Chaxdeai-. CoiLECTOij

j OF Dacca . 3 B. L. R. Ap. 57 : 11 W. E 48]^

] In another case the Collector was held to be ('

j depositary within cl. 15 of s. 1, Act XIV of 1859, a^

to a claim for mahkana. Goveenjiext v. Bhooi'

Naeaes Sixgh . . . 2W. E.16i!

Collector— Befotii,

el. 15)-

Art. 145 (1871, art. 147, 1859. s. 1, ary-Suit to recover ^^^^Vlus saU-proceeds of B^fo

See ante, Aets. 48, 49 and 145.

1. Deposit — Demand

— Cause of action. The plaintiff, on leaving Cal-
cutta in 1850, deposited a sum of money with A,
B, and C on which they were to pay him E9
monthly, and return the principal on his demanding
it. Rupees 9 were paid to him monthly, until
within twelve months of this suit. A and B had
died since the date of the deposit. This suit was
brought against C and the representatives of A and
B to recover the amount deposited, and a decree
was passed against C on his own admission. But
the representatives of ^4 and B set up that the suit
was barred : — Held, that it was not a deposit under
s. 1, cl. 15, of Act XIV of 1859. But held also in
accordance with the Enghsh cases (from which,
however, the learned Judge dissented), that the
cause of action arose from the date of the agreement

] arrears of revenue. Where A instituted a suit i'

November 1889 to recover from the Secretary «

State in Council the surplus sale-proceeds of thre

talukhs sold for arrears of Government revenue 0

3rd October 1877 which sale-proceeds were in tb

hands of the Collector -.—Held, that the Collectt

, was not a depositary of the monev within the meai

! ins of Art. 145 of Sch. II. Secbetary of StajI

j FOE India v. Faz-^l Axi . I. L. R. 18 Calc. 23

i See Seceetaey of State foe Indfa r. Go

Peoshad Dhtjr . . I. L. E. 20 Calc. 5

Deposit

of Government securities — Limitation Act. Sch. i
Arts. 59, 60. Art. 145, Sch. II, of the Limitat.
Act governs the case of a deposit of Governnit
securities, even if the transaction is considered s;
loan of sach securities and not merely as a deposij
Keisto Kamini Dassi v. Ad.ministbator-Ge>-kb^
OF Bengal (1903) . . . 7 0. W. If ■ *'

I ( 7413 )

LfflTATIOlJ" ACT (XV OF 1811)— contd
Schedule ll—co7itd.

Art. 146 — Suit to recover posses-

•Vf of mortgaged property — Demand. In 1842
■uted, in favour of the plaintiff, his brother
- in possession of the family property as
i administrator of the estate of their father,
uc of his (H C's) sliare of the estate in con-
a of R 3,700 advanced to him by the plaint-
Tiie mortgage-deed the money was express-
;■ ■ payable " on demand." In 1847 an
partition of the family property was pro-
ud it was agreed that a certain portion
■ allotted to the plaintiff in satisfaction of
due to him by H C, but this arrangement
1 1- carried out. In a suit brought in 1876
the representative oi H C for foreclosure of
tjage, the plaintiff, who had admittedly
. e 1842 in possession of the family property,
'hat no payment had ever been made in
t the mortgage, nor any demand for pay-
ntil 1876. The defendant contended that
was barred by lapse of time : — Hdd, on the
lion of the mortgage-deed, and under the
' mces of the case, per Garth, C.J., that a
was necessary ; per Maekby, J., that the
on demand " did not postpone the date of
r and, that the mortgage-money became
at once. Per Garth, C.J., and Markby
.- V demand was made in 1847 on the agreement
lo rtition the property. The suit therefore was
Hf(\ by Act XIV of 1859 as being brought more
■ ' Ive years after the cause of action arose.
t not only barred the remedj% but extin-
: the right and therefore the plaintiff coiild
Ml advantage frc^m the extended period of
n given bv Art. 149 of Act IX of 1871,
nealed the Act of 1859. Art. 149 of Act
^71, moreover, only applies to cases in which
t of the principal or interest of the mort-
iit has been paid. Ram GnrNDER Ghosaul

' TMOXMOHTN-EY DaBEE

I. L. R. 4 Calc. 283 : 3 C. L. R. 336

, S f and Arts. 144, 132— .9m/<

ior oreclosure. The period of hmitation pre-

ri il for a suit for foreclosure by the Limitation

'•' r>f 1871) is either twelve years under Art.

>ixty years under Art. 149 of Sch. II of

■» Act. Gakpat Paxdtjrang v. Adarjt

iJA|BHAi . 1. 1.. R. 3 Bom. 312

— Art. 146 A—

See Public Road, Highway, Street or
Thoroughfare.

I. li. R. 25 Mad. 635

Art. 147 — Mortgage— Sale or

■re — Adverse poxsessioiK In 1823 the
of a marriage settlement invested the trust
;. the mortgage of a house and premises at
^-'<-iy in the neighbourhood of Calcutta. The
moilagor was the first tenant-for-life under the
sett Dent, and it was agreed that he should be
enti 'd to remain in the house as long as he

DIGEST OF CASES.

( 7414 )

LIMITATION ACT (XV OP l611)^contdi

Schedule II — contd.
Art. lAl— contd.

pleased, the rent of the premises being set-o£E
against the income of the trust funds to wliichhe
was entitled under the .settlement. In execution
of a money-decree against the mortgagor, his
right, title, and interest in the premises were
purchased by the judgment-creditor, a lady who,
at the time of execution and sale, lived in
the mortgagor's house. After the purchase, all
parties continued to live in the house as before.
The mortgagor died on the 14th of August 1867, and
on the loth of August 1879 the present suit for sale
or foreclosure was instituted by the plaintiff, in
whom the legal and beneficial interest in the trust
funds had become vested : — Held, that the position
of the judgment-creditor under the sale of 1866 was
not adverse to the plaintiff or those under whom he
claimed ; that the suit ^vas not barred by limitation ;
and that plaintiff Mas entitled to a decree for sale.
Anandmayi Dasi v. Dharendra Chandra MuJ:erji,
S B. L. R. 122, distinguished. Manly v. Patter-
SON . . . . I. li. R. 7 Calc. 394

2. and Art. 1212— Suit to enforce

payment of money charged upon immoveable pro-
perty— Suit by a mortgagee for sale. A suit upon
a bond for money payable on demand by which
immoveable property is hypothecated as security
for the debt, wherein the relief prayed is' recovery of
the amount Tiith interest by estabUshmeut of the
right to enforce the hypothecation by auction-sale
of the interest of the obligor in such property, is
governed by Art. 147, and not by Art 132, of the
Limitation Act (XV of 1877). Shib Lal v. Ganoa
Prasad . . . . I. L. R. 6 All. 551

3. Mortgagor and

mortgagee — S^iit to follow mortgaged property. A
mortgaged his property to B in 1867 by a simple
mortgage. In 1868 A sold the property to C. In
1S70'.B brought a suit on his mortgage against .4
only, and obtained a mortgage-decree. In 1883 A
brought a suit against C to enforce his hen against
the mortgaged property. C pleaded that the suit
was barred by limitation under cl. 132 of the Limi-
tation Act (Act XV of 1877) :—Held, that the suit
was governed by Art. 147, Sch. II of x^ct XV of
1877, and therefore was not barred by hmitation.
Brojo Lal Singh v. Gour Charan Sen

I, L. R. 12 Calc. Ill

4. —

Mortgage — Mort-
gagee, -uit by a, to realize mortgage-debt by sale of
mortgaged properly, under power of sale— Cause of
action — Construction. By a mortgage-bond the
first defendant mortgaged, on the 1st January 1864,
certain property to plaintiffs' deceased father, with
an implied power to sell the same if the debt was not
satisfied at the expiration of seven years from that
date. On the 2nd January 1883, the first plaintiff
filed a suit in his own name, as manager of the
family, to have the debt realized by the sale of the
mortgaged property. The third defendant insisted
upon plaintiff's other two brothers being joined as

( 7415

DIGEST OF CASES.

( 7416 )

XIMITATION ACT (XV OP 1817)— contd.

Schedule II — contd.
Art. 14:1— contd.

co-plaintiffs, and they were so joined on the 1st
March 1883, at which date both the lower Courts
were of opinion that the suit was barred under s. 22
and Art. 132 of the Limitation Act (XV of 1877).
On appeal by the plaintiffs to the High Court : —
Held, reversing the lower Courts' decrees, that
plaintiff's suit was governed by Art. 147 of the
Limitation Act (XV of 1877), and therefore not
barred. By the instrument sued on, the property
in question was mortgaged to the plaintiffs' father
with an implied, if not express, power to sell the
sanie in the event of the mortgage-debt not being
paid at the expiration of seven'years from the date
of the mortgage. The period' of limitation was
sixty years from the 1st January 1871. Govinb
Bhaichand v. Kalnak . I. L. B. 10 Bom. 592

Suit on

a mortgage-bond — English mortgage — " Mortgage^'
and " Charge " — Transfer of Property Ad, ss. 5S
fJO, 67, 83, 8i, 87, 89, 92, 93, 100. A suit on a
mortgage-bond to enforce payment by sale of
premises hypothecated is governed by Art. 132,
and not Art. 147, of the Limitation Act. Brojo
Lai Sing v. Gour Charan Sen, I. L. R. 12 Cole.
118, overruled. Shih Lai v. Ganga Pershad,
I. L. R. 6 All. 551, dissented from. The clear
distinction drawn for the first time between ' ' mort-
gage " and " charge " in the Transfer of Property
Act is not observed in the Limitation Act. Art. 1 47
of the Limitation Act relates "to special kind of
mortgage known as English mortgage, and includes
only that class of suits in which the remedy is
either foreclosure or sale in the alternative. Gikwar
Singh v. Thakur Narain Singh

I. L. R. 14 Calc. 730

Mortgage as dis-

LIMITATION ACT (XV OP 1877)— confeZ.
Schedule U— contd.

tinguished from a charge. In 1867 the defendant i
borrowed R125 from the plaintiff and gave \
him a bond agreeing to pay interest at two per i
cent, per month. The bond provided that the [
whole debt, including principal and interest, was
to be repaid within four years from the date of
its execution. It further stated that certain pro-
perty had been mortgaged to the plaintiff as security i
for the loan, and that, if the principal and interest i
were not paid within the time fixed, the plaintiff
was to take up the management of the property. It
also contained the following clause : " We will ;
redeem the mortgaged property on the day on which j
we shall pay the amount of the principal and the ,
amount of the interest that may be found due on '
making up the account." In 1886 the plaintiff !
sued the defendants to recover by sale of the pro- J
perty the sum of R250 as principal and interest
due on the bond. It was contended that the bond
created merely a charge upon the property in ques- |
tion, and was not a mortgage, and that the suit !
was barred by Art. 132 of Sch. II of the Limitation (
Act (XV of 1877). Held, that the document was |
a mortgage, and that the suit was not barred, |

- Art. 141— contd.

being governed by Art. 147, and not by Art. 132,
of Sch. II of the Limitation Act. Motiram v.
ViTAi , . . I. L, R. 13 Bom. 90

'• — ^ ■ Mortgage as dis-
tinguished from a charge — Suit to enforce mort-
gage lien by sale of mortgaged property — Con.'^truction
of raortgage. A bond contained the following
stipulation as regards the liabilities of the sureties :

In respect of this we have given to you in writing
as a nazar gahan (i.e., sight mortgage) the fields
which belong to ourselves, and which we ourselves
are enjoying. If we do not pay according to con-
tract, you may sell the said fields through the Court
and recover the amount. If any balance remains,
we will pay it off personally or by mean^ of our
other property. ' ' Held, that the above stipulation
created a mortgage and not a mere charge on the
fields in question, and that Art. 147 of Sch. II of
the Limitation Act (XV of 1877) applied to a suit
by the obUgee against the surety under the bond
to enforce his lien by sale of the property mort-
gaged. Onkar Ramshet Marwadi v. "Govar-
DHAN Parshotamdas . I. L. R. 14 Bom. 577

8. Mortgage — Bond

— Charge on immoveable property — Limitation Ad.
A rt. 132. Where a bond given for a loan contained
the following condition as to security and repayment
of the money : " The security pledge (taran gahan)
for this is our own property. Survey Nos. 170 and
77S in the village ped, on all the land of which two
numbers do you take satisfaction for the said money;
and if it should be insufficient, I will personally
make satisfaction : ' ' — Held, that the transaction
was a mortgage governed by Art. 147, Sch. II of the
Limitation Act (XV of 1877), and not a charge
governed by Art. 132. Khemji v. Rama, 1. L. R. l"
Bom. 519, and Rangasami v. MuttuJcumarappa, If*
Mad. 509, dissented from. Motiram v. Vitai, Jo
Bom. 90 ; Venhatesh v. Narayan, L L. R. 15 Bom.
183 : and Bnvaji v. Tatya, P. J. (1891) 35,
followed. Datto Dudheshwar v. Vithu

I. L. R. 20 Bom, 408
— Uiufructuanj
pay. Where a

mortgage — Personal covenant to
usufructuary mortgage contains a personal under
taking to pay the amount secured thereby, th(
limitation applicable to a suit brought on th(
mortgage is governed by Art. 147, Limitation Aci
XV of 1877. Sivakami Ammal v. Gopala Savund
ram. Ayyan, 1. L. R. 17 Mad. 131, referred to. ^
ITdayana Pillai v. Senthivelu Pillai

I. L R. 19 Mad. 41

10. Equitable nwrt

gage by deposit of title-deeds — Suit by equiiabl
mortgagee for foreclosure and sale — Right of suv
An equitable mortgagee by deposit of title-deed
is a mortgagee within the meaning of Art. 147, Sch. 1
of the Limitation Act (XV of 1877), and the period (
limitation for a suit by such a mortgagee is sixt

( 7417 )

DIGEST OF CASES.

( 7118 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 14:7— contd.

years, as therein prescribed. A mortgagee by depos-
it of title-deeds has the right to sue for foreclosure
or sale. Manekji Framji v. xIustomji Naser-
WANJi IVIiSTRY . . I. li. R. 14 Bom. 269

11.

Mortgage-bond

containin'j a power of sale in case of default — Suit by
a mortgagee to recover the mortgage-debt from mort-
gaged property and from mortgagor personally —
Personal remedy against mortgagor. Where certain
land was given as security for repayment of a loan
mder an instalment bond which contained an
express provision for sale of the property in case of
default : Held, that the bond was a mortgage-
bond, and that Art. 147 of the Limitation Act (XV
of 1877) applied to a suit to recover the instalments
due under the bond by sale of the mortgaged pro-
perty. Held, also, that th3 limitation for the per-
sonal remedy against the mortgagor Avas three
, years. Bulakhi Gajju Shet v. Tukarambhat
I. li. R. 14 Bom 377

Bonds creating

construction of — Mortgage —

' interest in land.
Charge on immoveable property. Bonds by which
the property mentioned therein is declared to be a
security for a loan have been always regarded in
the Bombay Presidency as creating the relationship
of mortgagor and mortgagee, and fall under Art. 147
|0f Sch. II of the Limitation Act (XV of 1877).
-jVenkatesh Shetti v. Narayan Shetti
1 I. L. R. 15 Bom. 183

13. and Art. 14^4^— Suit for fore'

•losure or sale — Transfer of Property Act (IV
of 1S82), ss. ,5S (c), 67, ST- — Mortgage by condi-
i'.ional sale — Decree for foreclosure and possession.
iOn28th March 1871 the defendant's father borrowed
i\ sum of money from the plaintig's father and
Iplaced him in possession of certain land under
'vn instrument of mortgage, which provided for
i:he apphcation of the usufruct in liquidation of
jthe interest and then in reduction of the principal :
lihe instrument also contained a covenant for the
repay ment, in four years, of the balance that might
•hcQ be due by the mortgagor, and a stipulation
hat, on default, the mortgagor was to surrender
I 'he property to the mortgagee as if it had been
jiold to him. In 1874, the mortgagor resumed
possession without discharging the mortgage debt.
jlTie mortgagee having died, his sons, on 14th April
•888, filed the present suit on the mortgage and
prayed for a decree for foreclosure or sale : — Held,
I hat the suit was not barred by limitation, and the
!)iaintifis were entitled to a decree for foreclosure
«th a direction that possession be delivered to
'hem. Ammanna v. Gueumurthi

I. L. R. 16 Mad. 64

I 14. Suit for sale of

Iwrtgaged property— Bom. Reg. V of 1S27, s. 15,
.1. 3 — Special agreement. Plaintiii brought this
ait in 1895 on a mortgage-bond, dated 1870, to

LIMITATION ACT (XV OF 1877)— contd.

Schedule II— contd.
Art. 1^7— contd.

recover the balance due on the mortgage by sale,
of the mortgaged property or in the alternative for
possession of the property until payment of the
balance. The mortgage contained a stipulation
that, on default of payment of interest by the
mortgagor, the mortgagee should take possession
and hold possession in heu of interest, and that such
possession should continue until the mortgagor paid
the principal and interest that remained unpaid
when the mortgagee took possession. The Judge
dismissed the suit, holding that the claim for pos-
session was time barred and, the claim for the sale-
of the property could not be enforced, as the mort-
gage bond contained a special agreement which took
the case out of el. (3) of s. 15 of Bombay Regulation
V of 1827. On appeal : — Held, reversing the decree,
that s. 15 of Bombay Regulation V of 1827 was not
apphcable, as the mortgagee never was in posses.sion
and that the claim to enforce the mortgage security
bv sale was not barred. Sidhesvar v. Baeaji

I. L. R. 23 Bom. 781

15. ■ — — Mortgage by con-

ditional sale — Mortgagee in possession — Suit for
foreclosure and recovery of possessiortr-^Redemption,
A mortgagee by conditional sale, who was put into
possession of the mortgaged property from the date
of the mortgage and who is entitled under the deed
to hold possession, is entitled, when wrongfully
dispossessed, to recover possession of the property
by a suit brought \vithin time, although his claim
for foreclosure may be barred by Umitation. The
possession recovered is, how-ever, posses.sion as
mortgagee subject to the mortgagor's right of
redemption. A.man Alli v. Azgar Ai.i :Mia

I. L. R. 27 Calc. 185

16.

Transfer of Pro-

perty Act {IV of 1882), s. 5S{e) — -'English mortgage "
— Covenant or reconveyance not limited to time
stipidated for repayment of mortgage money. The
three essentials of an English mortgage, as defined
in s. 58 (e) of the Transfer of Property Act, are (i)
that the mortgagor should bind himself to repaj' the
mortgage money on a certain day, (ii) that the
property mortgaged should be transferred absolute-
ly to the mortgagee, (iii) that such absolute transfer
should be made subject to a proviso that the mort-
gagee will reconvcy the property to the mortgagor
upon payment by him of the mortgage-money on
the day on which the mortgagor bound himself to
repay same. A deed of a mortgage recited that the
mortgagors " hereby mortgage and assign to the
mortgagee ' ' the mortgaged property. Semble :
that (though it was doubtful if such an assignment
was really an absolute one) the assignment was
sufficient "to fulfil the second requisite of an " Eng-
Hsh mortgage. ' The proviso for reconveyance
in the deed was as follows : — '" Upon repayment to
the mortgagee of all sums due to him by the mort-
gagors, the mortgagee shall reconvey the said

( 7419 )

DIGEST OF CASES.

( 7420 )

lilMITATION ACT (XV Or 1877)— conti.
Schedule II — contd.

Art. 147 — concld.

property to the mortgagors," etc.: — Held (by the
Division Bench), that the transaction could not be
regarded as an Enslish mortgage, there being no
Tvords importing that the covenant to reconvey was
dependent upon the repayment of the mortgage -
money being made at the stipulated time and that
it should not be enforced in default of repayment at
that time. On the question what article of Sch. IT
to the Limitation Act governs a suit for sale by a
mortgagee under such a mortgage-deed : — Held, by
the Full Bench, that the period of limitation was
governed by Art. 147. That article applies to a suit
by a mortgagee whether it is for foreclosure or sale ;
and, in the former case, whether the prayer in the
plaint is for foreclosure alone, or is coupled with a
prayer in the alternative for sale in heu of a decree
for foreclosure. Ramachandra Eayaguru v. Modhu
Padki, I. L. R. 21 Mad. 326, and Girwar Singh v.
TJiakur Narain Singh, I. L. R. 14 Calc. 730, dissen-
ted from. Narayana Ayyae v. Venkataramana
Ayyar (1902) . . I. li. K. 25 Mad. 220

17. Mortgage ly

decree-holder out of ■possession, — Decree for possession
barred by limitation — Title of mortgagee — Adverse
possession. M, holding a decree for possession of
immoveable property against L K and M K, but
not having obtained possession, mortgaged the pro-
perty to which he was entitled under his decree to
R L. R L sued on his mortgage, but without
impleading L K and M K, who were in possession
adversely to M, and got a decree for sale.
Meanwhile allowed his decree for possession to
become barred by limitation. L K and M K mort-
gaged the property in question to C L and Z L and,
in execution of a decree on their mortgage, the pro-
perty was sold by auction and purchased by A and
S : — Held, that the consequence of M not having
executed his decree for possession was that L K and
M K gained a good title by adverse possession as
against R L, who therefore was not in a position to
bring to sile the property, which had passed to the
auction purchasers. Amir-un-nissn Begum v.
Vmar Khan, S B. L. R. 540, and Sheoumber Sahoo
V. Bhowaneedeen Kulwar, 2 N.-W. P. H. C. 223,
referred to. Ram Lal v. Masum Ali Khan
<1902) . . . . I. L, R. 25 All. 35

. Arts. 147, 120, 132—

See Hindu Law — Joint Family.

I. Ij. R. 29 All. 544

€l. 15)-

Art. 148 (1871, art. 148 : 1859, s. 1,

See ante, s. 19 — Acknowledgment of

OTHER Rights.
-See Wajib-ul-arz I. L. R. 26 All. 337

_ 1. — — — ■ _ A'iiif for redemp-
tion— Nature of title o/ mortgagee. The period of
limitation for a suit to redeem a mortgage of im-

lilMITATION ACT (XV OF 1877)— confi.

Schedule II — contd.
Art. 148— ccw^rf.

moveable property is sixty years, and this apparent-
ly without reference to the nature of the title the
mortgagee in possession is asserting. Semble : It
makes no difference that the hostile possession is
supposed to have commenced on a claim of the
defendant to a title altogether inconsistent with the
mortgage. Tanji v. Nagamma . 3 Mad. 137

Relation of trust.

CI. 15, s. 1, Act XIV of 1859, appUed when there
was some relation of trust, whether the property
was given in mortgage or pawn, or simply deposited
for safe custody. Rutton Monee Debia i'.
Gunga Monee "Debia Chowdhrain 3 W. R. 94

Suit by 7nortgagor

for possession of mortgaged property. In a suit by a
mortgagor after a mortgage has been satisfied, for
the recovery of the mortgaged property, the period
of limitation applicable is that prescribed by cl. 15
of s. 1 of Act XIV of 1859. Lall Doss v. Jamal
Ali . . . . B. L. R. Sup Vol. 901
9 W. R. 187

4. Laches — Estoppel.

o steps for

may afford

rights, but

if thev dc

The laches of a mortgagor in taking n
many years to enforce his alleged rights
evidence against the existence of those
cannot estop him from asserting them,
exist, at any time within the period of
allowed by s. 1, cL 15, Act XIV of 1859.
NATH Sahoo v. Mahomed Hossein

14 B. L. R. 386 : 23
L. R. !

sixty years

JUGGEE

W. R. 98
5 1. A. 48

5. Suit by a mortga

gar for recovery of possession from a mortgagee holding,
over after expiry of the term of a usufructuary mort
gage. When a mortgagee in possession under
usufructuary mortgage, holds over after the tiro
limited in the mortgage-deed for surrender of th
property his possession does not, by that fact alonf
become adverse to the mortgagor, who still has
period of sixty years within which to sue for n
coverv of possession. Jaggurnath Sahoo v. Mahom(
Hossein, 14 B. L. R. 3S6 : L. R. 2 I. A. 49, idem
to. PoKHPAL Singh v. Bishan Singh

I. L. R. 20 All. U

6. Act XIV of 185

s. 1, cl. 15— Act IX of 1871, s. 29, and Art. US-
Usufructuary mortgage — Extinction of mortgagor
title — New starting point by acknowledgment. T'
representatives in estate of a mortgagor, wl
executed a usufructuary mortgage, dated 17
October 1788, sued the heirs of the mortgagee
1893, alleging payment of the mortgage in 1881, ai
claiming the possession of the mortgaged proper
or other relief. The suit, in the absence of acknc
ledgment made within sixty years satisfying t.
requirements of the law of limitation for extensi'
of that period, was barred on the 17th October 184.
by the effect of Act XIV of 1859, s. 1, cL 15, whi

( 7421 )

DIGEST OF CASES.

( 7422 )

LIMITATION ACT (XV OF 1877)— con<<f.
Schedule U—contd.

Art. 148— contd.

jbarred the suit after the 1st January 1862. After-
wards, by the effect of Act IX of 1871, s. 29, the
right of property in the mortgagor was extin-
guished. In none of the documentary evidence
adduced by the plaintiffs was there shown to have
been made during the sixty years from the date of
che mortgage onwards any written acknowledg-
ment satisfying the requirements of the above cl. 15,
ind thereby giving ground for computing hmitation
Tom the date of such acknowledgment. Nor did
:he fact that a lease was made on the 8th January
S72 of some of the mortgaged property by one of
je then mortgagees to one of the mortgagors,
he lessor describing himself as usufructuary mort-
;agee, preclude the defendants from asserting their
rue title. The description neither estopped the
lleged mortgagee from denying that he was in
hat character at the time of this suit, nor was
t a representation which required that he should
nake it good. It was no essential part of a con-
ract between these parties, and it did not affect
he issue now raised. The judgment in Citizens
iank of Louisiana v. First National Bank of New
Orleans, L. E. 6 E. & I. App. 352, referred to.
"aumatulnissa Begtjm v. Sundar Das

I. L. R. 27 Cale. 1004

L. E. 27 I. A. 103

4C. W. N 585

Upholding the decision of the High Court in

■jStTNDAR Dass V. Fatimatnissa 1 C. W. K". 153

I •• ■ Permissive occu-

7tion of house — Suit to recover house from heirs of
■nant. About twenty-five years before suit
rought,— 7?, being possessed of a house, allowed K
' occupy it without paying rent, on condition that

Would keep it in repair, and restore it to R on
imand. Nine years afterwards and without any
jsmand having been made by R, K died, and his
jiirs continued to occupy the house, apparently on
jie same terms as K had done. In a suit brought
j' B against the heirs of K to recover possession of
|e house -.—Held, that K could not be deemed

have been a depositary of the house within the
leaning of s. 1, cl. 15, of Act XIV of 1859, and the
jse was therefore governed by s. 1, cl. 12, of that
rt Radhabhai v. Shama . 4 Bom. A. C. 155

j'f- 7 Conditional sale —

r»< for redemption. Redemption by the mort-
:gor of mortgaged premises held bj'' a mortgagee
ider a gahan lahan mortgage is not barred by the

)rtgagee's possession of the premises for the
-nod of twelve years after the date on which,
i^ordmg to the terms of the mortgage -deed, the
j'rtgage is to be converted into a sale. Such a
■ « 13 governed by the provisions of Act XIV of

'9. s. 1, cl. 15. Krishxaji alias Babaji
psHAv t\ Ravji Sadashiv . . 9 Bom. 79
.:?ee Shakkaebhai Gulabbhai v. Kassibhai

fHALBHAi 9 Bom. 69

LIMITATION ACT (XV OF IQlly-conid.
Schedule II — contd.

Art. 14S— contd.

Ramji bin Tukaram v. Chixto Sakharam

1 Bom. 199
Ramshet Bachashet v. Pandharinath

8 Bom. A. C. 236

. **• -— Suit for redemp-
tion—Adverse possession. A mortgagor sued his
mortgagee to redeem, joining as defendant the
person in possession of the mortgaged land, who
claimed to hold adversely to both the mortcra^or
and the movtga,ge(, -.—Held, that the possessFon of
the last defendant being a trespass not on the pos-
session of the mortgagor, who had only the equitable
estate, but on the possession of the mortgagee, in
whom the legal estate was vested, and the person in
possession not pretending to be a bond fide purchaser
from the mortgagee, he did not come within the
exception in s. 5 of Act XIV of 1859 ; that the
trespasser could only succeed to such estate as the
mortgagee possessed ; and consequently that the
limitation applicable to the suit as against him was
sixty years according to s. 1, cl. 15, of Act XIV of
1859, the effect of which was not altered by any
hostile possession commenced on a title independent
of the mortgage. Vithoba sm Chabc v. Gaxoa-
RAM BIX Biramji ... 12 Bom. 180
10. ^ Right of pur-
chaser. ^\here B, an old judgment-creditor of K's
father, took out execution against K, whose rights
in an estate were accordingly sold and brought by B
himself, B brought not K' s right of suit (which as
against a mortgagee would be governed by a limita-
tion of sixty years), but a right determined by a
decree to which cl. 15, s. 1, Act XIV of 1859, would
not apply. Ram Sarux Sixgh v. Mahomed
Ameer 13 W. R. 78

11. Mad. Reg. II of

1S02, s. IS, cl. 4 — Right of redemption of otti mort-
gage. In 1841 A established her proprietary right
to lands as against B and an otti mortgagee then in
possession. In 1844 B obtained a decree against the
mortgagee in a suit to which A was not a party, and
assigned his rights under the mortgage to C, who
continued to hold as B's assignee down to 1860 : —
Held, that, unless A was aware, or might by ordinary
diligence have been aware, of the suit of 1844, her
right to redeem the lands was not barred by the
lapse of twelve years from the decree in that suit.

PUDIYAKOVILAGALLA r. AlLUXANXALATTA KaDINXI

1 Mad. 146

12. ^ Suit for redemp-
tion— Assertio7i of adverse title. It was hJd (in ac-
cordance with the opinion of the Full Bench), that
the mere assertion of an adverse title wiU not enable
a mortgagee in possession to abbreviate the period
of sixty years which the law allows to a mort^'aTor
to prosecute his right to redeem and seek his remedy
by suit. Ramdyalw. Jauxihir Ram,S.D.A. iV. IK.
1S61, 22nd of April 1S61, overruled. Sheopal v.
Khadim Hossein , . . 7 N. W. 220

( 7423 )

DIGEST OF CASES.

( 7424 )

LIMITATION ACT (XV OP 1877)— conii.
Schedule II — contd.

Art. 14A— contd.

13.

Suit for redemp-

tion of mortgage- — Adverse possession — Title, asser-
tion of. The mere assertion of an adverse title
by a mortgagee in possession does not make his
possession adverste, or enable laim to abbreviate
the period of sixty years which the law allows to
a mortgagor to prosecute his right to redeem
and seek his remedy by suit. Sheopal v. Khadim
Hossein, 7 N. W. 220, followed. Where accord-
ingly certain immoveable property was mort-
gaged in June 1854 for a term which expired in
June 1874, and in July 186,3 the equity of redemp-
tion of such property was transferred by sale to the
mortgagees by a person who was not competent to
make such transfer, and the mortgagees set up a
proprietary title to such property in virtue of the
sale : — Held, in a suit to redeem such property
instituted in March 1877, that such suit was not
barred, because it was not instituted within twelve
years from the date of the deed of sale. Ali
Muhammad v. Lalta Bakhsh

I. L. B. 1 All. b55

14.

Suit for redemp-

tion. Art. 148, Sch. II of the Limitation Act, 1871,
applies to suits for redemption, and to such suits in-
stituted against mortgagees, or persons claiming
under them, except purchasers for value ; but it
does not apply to suits against strangers, nor
to suits which are not suits for redemption. Ammu
V. Ramakeishna Sastu . I. li. R, 2 Mad. 226

15. and Art. 14:5— Eight to offici-
ate as priest, nature of suit to establish — Immove-
able property. A right to officiate as priest at
funeral ceremonies of Hindus is in the nature of
immoveable property, and a suit for redemption of
such right therefore falls under Art. 181, and not
under Art. 145, of the Limitation Act. Eaghoo
Pandey v. Kassy Paeey

I. L. R. 10 Calc. 73 : 13 C. L. R. 263

16. Mortgage — Sub-
sequent agreement conveying to mortgagee for a
term of years — Effect of such agreement — '' Oiice a
mortgage always a mortgage ' ' — Suit by heirs of mort-
gagor to recover the property — Usufructuary mort-
gage. Where, after the expiration of the period pre-
scribed for redemption, the mortgagor and mort-
gagee agreed that the mortgagee should continue in
absolute possession for a fixed term and then restore
the property free from the mortgage lien : — Held,
that the agreement was distinct from the original
mortgage, and was not intended to be a mortgage,
but a conveyance for a term of years, and a suit to
recover the property must be brought w'thin twelve
years from the expiration of the term stipulated in
the agreement. Gopal Sitaram Gune v. Desai

I. L. R. 6 Bom. 674

17- -_ and Art. 134— Jom< mortgage

—Redemption by one mortgagor — Suit by other
mortgagor for his share — Suit for redemption —

LIMITATION- ACT (XV OF 1877)— conf(f.
Schedule II — contd.

Art. \48— contd.

Transfer of Property Ad {IV of 1882), ss. 95, 100.
K and J jointly mortgaged 36 sihams or shares of
an estate to C giving him possession. C transferred
his rights as mortgagee to T and M. In execution
of a decree for money against K held by M, K't
rights and interests in the mortgaged property
were sold, and were purchased by P, whose heir?
paid the entire mortgage-debt. R, an heir of J
sued the heirs of P to recover from them possessiof
of J' 5 sihams in the mortgaged property, on pay
ment of a proportionate amount of the mortgagp
money paid by P. The plaintiff alleged that tl
mortgage to G had been made forty years befor
suit. The defendants contended that a muc!
longer period had expired since the date of th
mortgage ; that forty-one years had elapsed since (|
transferred his rights as mortgagee ; that they haj
redeemed the property twenty-one j^ears ago an
had been since its redemption in proprietary an
adverse possession of the sihams in suit ; and thfi
the suit was barred by limitation. Neither part
was aware of the date of the mortgage, and neithc
adduced any proof on the point : — Held, applyir,
the equitable principle adopted in ss. 95 and K
of the Transfer of Property Act (IV of 1882), th^
the owner of a portion of a mortgaged estate whii
has been redeemed by his co-mortgagor, has t]|
right to redeem such portion from his co-mortgagf/
and a suit brought for that purpose would be in ti|
nature of a suit for redemption, and would naturaJi
fall within the definition of Art. 148, Sch. II of t
Limitation Act (XV of 1877) ; and it was d*
possible for one of two mortgagors, redeeming tji
whole mortgaged property behind the back of tji
other, to change the position of that other to soDi-
thing less than that of a mortgagor, or to abric?
the perifed of limitation wdthin which he ought •>
come in to redeem. Held, therefore, that Art. J
and not Art. 134, of Sch. II of the Limitation Act >
applicable to the suit. Umrunnissa v. Muhamn
Yar Khan, I. L. R. 3 All. 24, distinguished. P
cham Singh v. Ali Ahmad, I. L. R. 4 All. 58, refer
to. Nura Bibi v. Jagat Narain

I. L. R. 8 AU. Sp

18. __ Mortgage— ■

demption by co-mortgagor — Suit by other mortgo'
against redeeming mortgagor for redemption of t
shares. Where one of several co- mortgagors
deems the whole mortgage, he thereby puts \\^-
self into the position of the mortgagee as regards f^t
portion of the mortgaged property which represjis
the interests of the other co-mortgagors, andp&
period of limitation apphcable to a suit for redcip-
tion brought by the other co-mortgagors is that i"-
vided for by Art. 148 of Sch. II of the Limita'"
Act (XV of 1877). Such period begins to run i '"
the date when the original mortgage was redt-^'
able and, not from the date of its redemption bji"^
aforesaid co-mortgagor. In 1828 one of se^r:!!
co-mortgagors redeemed an usufructuary mortgSeo

( 7425 )

DIGEST OF CASES.

( 7426 )

[.IMITATION ACT (XV OF 1877)— conid.

Schedule II— contd.
Art. 148— con(d.

ixecuted in 1822 and obtained possession. The
ither mortgagors brought a suit against the heir of
he redeeming mortgagors in 1886 for redemption
f their shares in the mortgaged property : — Held,
hat the limitation applicable to the suit was that
•rovided by Art. 148, Seh. 11 of the Limitation Act
XV of 1877) ; that time ran, not from the date of
lie redemption in 1828, but from the time when it
ould have run against the original mortgagee if he
ad been a defendant, i.e., the date of the original
lortgage of 1822 ; and that the suit was therefore
■rred by limitation. Nura Ribi v. Jagat Narain,
L. R. S All. 29-5, and Raghnbir Sahai v. Bwnyad
It, AU. Weekly Notes {18S6) ll-J, foUowed. Umr-
>i-nissa v. Muliammad Yar Khan, I. L. R. 3 All.
t, distinguished. Ru7n Singh v. Baldeo Singh, All.
'ediy Notes (1S85) 300, referred to. Ashfaq
K.MAD V. Wazik Ali . I. li. R. 11 All. 423
I. li. R. 14 All. 1

19.

Suit for redemp-

m — Mortgagee purcliasing equity of redemption
yinone without title to it — Adverse possession of
yrtgagee against true owner of equity of redemption.
the absence of any act showing that the mort-
gee is asserting himseK against the owner of the
uity of redemption, his possession is not adverse
:ainst the latter as regards limitation. The mere
«rtion of his claim by the mortgagee would not
ect the right of the real owner of the equity of
- lemption where a person having no right in the
)perty pretends to sell to the mortgagee the
•lity of redemption. Paxdu Lakshmax IMa-
REKAB V. Anpurna . I. li. R. 21 Bom. 793

ao.

Limitation Act

\i of 1871), s. 148 — Acknowledgment of title by one
\several mortgagees as agent for the others— Ac-
Dwkdgment by one of several heirs of the mort-
i^ee— Redemption, suit for. Under Art. 148 of the
^ioitation Act(lX of 1871), an acknowledgment
<' he mortgagor's title by one of several mortgagees
1 agent for the others is wholly ineffectual, and
< IS not bind the rest. So, too,''is an aclaiowledg-
«lJt by one of several heirs of the original mort-
Jiee without effect. The expression " some persons
timing under him " in Art. 148 of the Act means
«'ie person claiming under him the entirety of the
I -tgagee's rights. The property in dispute was
iHgaged by H B to the firm oi K B in 1816. In i
Y J, one of the sons and heirs of K, who was then I
>!|iager of the firm, on behalf of the whole family, j
•j-mortgaged the property in dispute to a third j
f l-y' "nder a bond which recited the original mort- I
8p by H Bio K. In 1885 the defendant, who '
*j a de.scendant of K, redeemed the sub-mortgage !
S''!r ^J '^- ^" ^^^^ ^^^^ plaintiff, having pur- |
«|©cl the equity of redemption from H B's de-
"jrtants, filed the present suit for redemption of |
M|mortgage of 1816. The plaintiff relied on the j
«« lowledgment made by J in 1830 as giving a [
VOL. III.

LIMITATION ACT (XV OF 1671)— contd.
Schedule II — contd.

Art. 148— condd.

fresh starting point to limitation : — Held, that the
suit was barred by limitation. The acknowledg-
ment by J, whether as manager of the firm or as one
of^the heirs of the original mortgagee, was not
sufficient under Art. 148 of the Limitation Act (IS
of 1871). Bhogilal v. Amritlal

I. L. R. 17 Bom. 173

21.

and Art. 132— Interests Mort-

gagee's right to interest in a redemption suit —
Extent of the right — Transfer of Property Act
(IV of 1882), s. 58. In 1882 the plaintiffs sued to
redeem a mortgage effected in 1833. The Court of
first instance allowed the mortgagee interest from
the date of the bond. The Appellate Court reduced
the interest awarded to the period of six years : —
Held, reversing the decision of the lower Appellate
Court, that the mortgagee was entitled to claim
interest from the date of the bond up to the date of
the decree. Art. 148, and not Art. 132, applies to
such a suit ; but no provision of limitation is made
by the Article for the payment of interest on the
.sum due to the mortgagee. In s. 58 of the Trans-
fer of Property Act, the mortgage-money is
interpreted to include the interest due, and no limit
to the payment of interest is fixed. Daudbhai
Eambhai v. Daudbhai Allibhai

I. L. R. 14 Bom. 113

Mortgage — Co-

mortgagors — Redemption of entire mortgage by one co-
mortgagor, who obtains possession of whole property —
Subsequent suit ngninxt him by other co-mortg'igors for
their share of the prop'rty — Pka of adverse possession
— Co-mortgagor who pays off entire mortgage has a
charge on the property. In 1872, Vinayak and
Ganesh, co-owners of the land in question, mort-
gaged it for R300. In 1882, in a suit brought by the
mortgagee, a consent decree was passed, ordering
redemption on paj-ment by the mortgagors of R400.
Vinayak paid off the whole amount, redeemed the
mortgage, and obtained possession of the land, which
he and his heirs continued to hold down to 1S98.
In 1898, the heii-s of Ganesh brought this suit against
the heirs of Vinayak, claiming to recover a moiety
of the land. The defendants pleaded adverse pos-
session for more than twelve years. The plaintiffs
contended that Vinayak, having redeemed the
mortgage, stood in the shoes of the mortgagee
as regards his co-mortgagor Ganesh, and his heirs,
and that the latter had sixty years within Mhich to
redeem, under Art. 148 of Sch. II to the Limitation
Act (XV of 1877) -.-Held, that Art. 148 did not
apply, and that the plaintiff's claim was barred by
limitation. Art. 148 applies to a suit against a
mortgagee. A co-mortgagor who has redeemed the
whole mortgage is not a mortgagee. His transac-
tion does not amount to a mortgage. He has merely
a charge on the property. Vasudev Bhtkaji v.
B.vL.\Ji Krishna (1002) '. I. L. R. 26 Bom. 500

11 D

( 7427 )

DIGEST OF CASES.

( 7428 )

IjIMITATION act (XV OF lS^^)—cm^(I.
Schedule II — cmtd.
- Art. 149 (1871, art. 151 ; 1859, s.

17)-
1.

Suit by or on be-

half of Secretary of State for India. Art. 149 of the
Limitation Act applies only to suits brought by, or
on behalf of, the Secretary of State, nor to a suit
brought by a Municipality. Secretary of State
FOR India v. Kota Bapanamma Garf

I. L. R. 19 Mad. 165

2. Stdt to establish

right to jvlkar — Beng. Reg. II of 1805, s. 2. A suit
by Government to establish its right and title to a
julkur was barred by limitation under s. 2, Regula-
tion II, 1805, if brought after the expiration of
sixty years' adverse possession against Government.
Collector of Rungpore v. Prosxjnno Coomar
Tagore 5 W. R. 115

Suit for costs-

I'lihlic right — Exemption from limitation. In a suit
fnr the recovery of costs incurred by the Govern-
ment of Bengal, in virtue of the Stat. 3 & 4 Wil. IV,
c. 41, authorizing the Crown to appoint the East
India Company to take charge of appeals and bring
them to a hearing : — Held, that the recovery of such
costs did not constitute a " public right " exempting
from limitation within Regulation II of 1805.
Government of Bengal v. Shurrttffutoonissa
3 W. R. P. C. 31
8 Moo. I. A. 225

4. Suit by Govern-

imnt for maintenance of a ghatwnli tenure in which
alteration has been effected by fraud of the zamindar.
\^' here a zamindar sold a ghatwali mehal as a mal-
mehal, and not merely h's right to receive the quit-
rent from the ghatwal, and the vendee in collusion
with the former ghatwal granted him a mokurari
tenure, thus changing the nature of the tenure from
a ghatwali into a mal tenure : — Held, that the Gov-
ernment had a right to sue so as to maintain its
own nominee in possession of the land as ghatwal,
and that the limitation of sixty years was applicable
to such a suit. Petumber Dey v. .Tttogunnath
Roy 18W. 11.130

5. and s. 28 — Suit by Croum for de-
claration of title and possession of forest land — •
Mad. Reg. II of 1802 — Survival of right — Limit-
ation Act, 1859. In a suit instituted in March
1879 by the Crown for a declaration of title to
certain forest land and for possession of a por-
tion thereof, the defendants alleged that the land
has been in their possession for more than sixty
years : — Held, that it was incumbent on the Crown
under Art. 149 of Sch. II of the Indian Limitation
Act, 1877, to show possession of the proprietary
rightsclaimed within sixty years, or, if the defend-
ants proved possession, that such possession com-
menced or became adverse within such period. The
DistrictCourt having held that, up to April 1st,
1873, when the Limitation Act of 1871 came into

force, the limitation for such a suit was twelve years

LIMITATION ACT (XV OF 1877)— con<rf.
Schedule II — contd.

Art. lAd— contd.

from the time when the cause of action arose, ar
that the suit was barred by adverse possession fi
twelve years prior to April 1st, 1873 : — Held, iha
even if Regulation II of 1802 applied to claims I
the Crown, inasmuch as the Regulation only barn
the remedy and did not extinguish the right, ai
Act XIV of 1859 did not extend to such a claii
the right subsisted when the Limitation Act of ISi
came into operation, and as long as that Act w
in force ; and that the Crown, being entitled un{?|
that Act to sue within sixty years from the date-
the cause of action, and under s. 28 of the Lir ■
ation Act of 1887 to sue within two years from \f
1st of October 1877, the suit was not bam
Secretary of State for India v. Vira Rayan |
I. L. K. 9 Mad. 1^

6. Suit by Gove^-

ment for recovery of stamp duty in pauper suit. Fo
years after the dismissal of a pauper suit, from e
decree in which no appeal had been preferil.
Government sought recovery of the stamp dutyy
attachment and sale of the pauper plaintiff's ])-
perty '. — Held, that the claim, being a "puic
claim" within s. 17, Act XIV of 1859, was >t
barred. Collector of South Arcot v. Tha' a
Charry^ SMad-ia

Shami Mahomed v. Mahomed Ali Khan i
2 B. li. R. Ap. 22 : 11 W. R»T

7. - Suit after is-

possession — Disputes of private owners — Bigkof
Government. A dispute between two priite
ownei's, whether as to boundaries of lands, caot
divest the title of either to possession in favour o he
Government if the Government have merely ant
or juinma. The title to sue for dispossession cthe
lands belongs in such a case to the owner wise
property is encroached upon. If he suffers his|ht
to be barred by limitation, the practical effect'the
extinction of his title in favour of the party irfos-
session, but his cause of action cannot be keptjive
longer than the legal period of limitation of t|lve
years by the expedient of inducing the Collec'HiO
make common cause with him. Gunga GcjCND
MuNDUL V. Collector of the 24-Pergunn.,3
7 W. R. P. C. 21 : 11 Moo. I. A^o

8, Lessee ^^**

Goiernment. The mere fact that the plaintiff |
as a lessee under Government does not entit
to the benefit of s. 17, Act XIV of 1S59. A.^ '
V. Raju Mia .1 B. L. R. A. C. 34 : 10 W. '«

9. Suit by pif'^^^

of Governme7itriqhts in a khas m ehal. A suit ,• the
purchaser of the rights of Government in ,kUas
mehal to obtain possession is governed, not ' jn
limitation of sixty years, but by that of -eiv
years. Hossein Buksh v. Ameena KHAni'>*
20 W. - ^^'-

( 7429 )

DIGEST UF CASES.

( 7430 )

LIMITATION ACT (XV OF 1817)— conkL
Schedule II — conkl

Art. 149— cowcW.

BuNDi Roy v. Bunsee Thakoor 24 W. R. 64

10.

Suit by mMhvaUi

for endowed -property. Since the passing of Act
XX of lS(i:5, a mutwaili, or manager of a Mahomedan
endowment, cannot be considered to be an officer of
Government, a position he \\as held to have in the
Privy Council case of Jewan Doss Sahoo v. Kubeer-
o(hken,'i W. B. P. C. 3 : 2 Moo. I. A. 390, and
therefore the ordinary rules of limitation apply to a
suit bv him for endowed property. Laij- Mahomed
r. Lall Brij Kishore . '. 17 W. R. 430

11.

Encroachment on

public highway — Svit by Municipality to remove
encroucldnent — Limitation Act, Art. 144 — Title by
adverse posse-isiop. The Municipality of Madras
sued to recover as forming part of a highway, a strip
of land adjoining the house of the defendant on
which a pial had been erected more than forty-five
years before the suit : — Held, assuming that the
land in question was originally included in the street,
that the defendant had acquiiedatitleby adverse
possession against the municipality, which was not
entitled to call in aid the provisions of the Limita-
tion Act, Soh. II, Art. 149. Mu^jicipal Commis-
sioners V. Sarangapani Mudaliar

I. Ti. R. 19 Mad. 154

12. Decne in the

alternative, legality of — Eaiyatwari tenure — Grant
oj bed of tidal and navigable river on raiyatwari
tenure — Power of Government to determine -such
tenure. Land forming the bed of a tidal and navig-
able river is the absolute property of Government.
'Where Government has for a long time been col-
'lecting revenue and special cesses from the occupant
'thereof, it will be presumed that such land was
jjranted on raiyatwari tenure and the occupier will
be entitled to hold the land so long as he pays the
revenue ; and he can be ousted onlv under the pro-
risions of Madras Act II of 1864. Where the
is.signecs from the Secretary of State join him as a
'."o-plaintifJ with themselves in a suit, the period of
imitati_.n will not be (iO years under Art. 1 49, Sch. II
')f the Limitation Act ; such Article applying only to
j'uits brought on behalf of the Secretary of State.
jrhe only parties entitled to a decree in such a suit
jrill be the assignees ; and a decree in the alternative
annot be passed in favour of the Secretary of State
'f the assignees, w hen the right of the assignees is
Idmitted. Pullanappally Sankaran Nambudri

• VlTTIL ThALAKAT MuH.iMMAD (1905)

I. L. R. 28 Mad. 505

-'^ :~_ ^ Art. 149 of Sch.

jl of the Limitation Act applies only to suits

|rought by the Secretary of State or on his behalf

nl not to suits brought by persons d.-riving title

1 him. Kuthaperumal Rajali v. The

I'.ETARY OF State for India (1906)

I. L. R. 30 Mad. 245

LIMITATION ACT (XV OF 1871)— conid.
Schedule II — contd.

- Art. 151—

See Divorce Act,

I. L. R. 22 Bom. 612

Art. 152-

See Appeai. — Decrees.

I. li. R. 23 Cale. 279 ; 406

Appeal from decree or

order — Period from tchich time runs. The time
for presenting an appeal against a decree or
order is thirty days from the date of such decree or
order (Art. 152 of the Limitation Act XV of 1877).
The date of the decree or order is the date on which
judgment is pronounced. Yama.ti v. Antaji

I. L R. 23 Bom. 442

. Art. 155 (1871, art. 153)—

See Appeal in Criminal Cases — Acquit-
tals, -■ ppeals from.

L li. R. 2 Calc. 436
Appeal in criminal

case — Appeal from the Resident's Court, Banga-
lore. A person who was being defended by Counsel
on a criminal charge interfered in the examination
of a witness and made a defamatory statement with
regard to hir, character. He was now charged with
defamation and convicted in the Resident 's Court at
Bangalore. On an appeal to the High Court, pre-
ferred more than sixty days after the conviction,
it w as contended that it was not an appeal under the
Criminal Procedure Code, but under the Extradition;
Act ; and sixty days' limitation therefore did not
apply to it : — Held, that the appeal should be ad-
mitted. Hayes v. Christian

I. li. R. 15 Mad. 414

Art. \56— Burma Courts Act, IST',

ss. 4", f'7 — Appeal from l.ccorder of Rangoon.
An appeal from the Court of the Recorder of Ran-
goon to the High Court is an appeal under the Civil
Procedure Code, and must be made within the time
prescribed by Art. 156, Sch. II of the Limitation Act.
Aga Mahomed Hamadani v. Cohen

I. L. R. 13 Calc. 221

Art. 158—

See Arbitration — Awards — Validity of
Awards, and Ground for setting
THEM ASIDE . I. L. R. 29 Calc. 38

1. _ -. Application to set

aside award — Ground for setting aside award —
Civil Procedure Code. s-i. 521, 522. Where, in ac-
cordance with an award irregularly made, a decree
was passed by the Court from w hich the defendant
appealed : — Held, that the defendant was not pre-
cluded from appealing to the Judge from the first
Court's decree, because he had not applied to set
aside the award within the ten days allow ed by Art.
158, Sch. II of the Limitation Act, inasmuch as that
article applied to applications referred to in s. 522
of the Civil Procedure Code, i.e., applications to set
aside an award on any of the grounds mentioned la

11 d2

( 7431 )

DIGEST OF CASES.

( 7432 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 158— concld.

s. 521, — and the defendant did not contest the
award on any of those grounds. Muhammad Abid

V. MtJHAMMAD ASGHAR . I. Ij. R. 8 All. 64

— Arbitration-

Award, application to set aside — Time from when
limitation begins to run — Civil Procedure Code (Act
XIV of 1SS:J), s. -516. An application to set aside
an award must be made within ten days from the
time the award arrives at the Registrar's office for
the purpose of being filed, and not from the time
when it is filed. Nobin Kally Dabee v. Ambica
Churn Banebjee (1901) . 5 C. W. N. 813

Art. 159—

See Negotiable Instruments, summary

PROCEDURE ON . 5 C. W. N. 259

Suit under Ch.

XXXIX, ss. ,532, -538, of the Civil Procedure Code,
IS 8 2 — Application for leave to defend suit — Date
of service of summons — Sheriff ''s return of service.
In a suit under Ch. XXXIX of the Civil Procedure
Code (summary procedure on negotiable instru-
ments) the defendant obtained an ez parte order on
the 9th January 1896 for leave to appear and defend
the suit. The plaintiff on the 23rd January 1896
obtained an order calling on the defendant to show
cause why the order of the 9th January 1896 should
not be set aside on the ground that the applica-
tion was not made within ten days from the date of
the service of summons. The date of service as
shown in the Sheriff's return was the 23rd December
1895. The defendant alleged he had not come to
know of the service till the 5th January 1896, as
he was not at that time residing at his dwelling-
house when the service was alleged to have been
efiEected :— i^eM, that, as regards limitation, the
only date to which reference could be made was the
date shown in the Sheriff's return, and that the
Court could not at the present stage of the case
allow the defendant to show a state of things
different from that appearing in his petition.
Madhub Lall Durgur v. Woopendranarain
Sen ... I. L. R. 23 Gale. 573

Art. 162—

See Divorce Act, s. 16.

I. L. R. 6 Bom. 416
Art. 163—

See Civil Procedure Code, 1882, s. 103.
8 C. W, N. 97
See Suit, restoration of.

I. L. R. 31 Calc. 150

Art. 164 (1871, art. 157; Civil

Procedure Code, 1859, s. 119)—

— Obligation on de-

fendant against whom ex parte decree has been passed.
The object of s. 119, Act VIII of 1859, was to
make it imperative on a defendant against whom

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — conid.

Art. 16^— contd.

an ex parte decree had been passed, and who desired
to come in and set aside that decree, to apply to the
Court as soon as possible after he had notice of the
passing of the decree, — i.e., within a reasonable time
not exceeding thirty days from the first actual exe-
cution of process to enforce the judgment. Golam
Ahyah v. Sham Soonder Koonwaree

7 W. R. 375

2. Meaning o]

" executing " process of judgment. Process of en-
forcing a judgment (within thirty days from whic-
a defendant may apply to set aside an ex pari
decree) has not been executed within the meaning o:
s. 119, Act VII of 1859, until the proceedings ii
execution have been brought to a termination by i
sale of the property attached. Radha Binodi
Chowdhry v. Mudhoo Soodun Sircar

7 W. R. 19i

Act X of 185:

s. 58 — Ex parte decree. Application to set
Process for enforcing judgment was executed withi
the meaning of s. 119 of Act VIII of 1859 and s. 5
of Act X of 1859, when an attachment of the pre
perty of the defendant had taken place ; and an
application by the defendant under those sectior
to set aside an ex parte decree must be made with:
thirty and fifteen days, respectively, from the date
the attachment. Kadha Binode Chowdhry

DiGAMBUREE DoSSEE. NUND KiSHORE DoSS

Maharaja of Burdwan

B. L. R. Sup. Vol. 947 : 9 W. R. 21

4. The thirty da'

" after any process for enforcing the judgment b
been executed," within which a defendant mig
apply under s. 119, Code of Civil Procedure, for i
order to set aside an ex parte decree, meant thir
days after the execution of any process against it
person of property of the defendant. Sis
Chunder Bhadooree v. LucKHEE Debia Cho^
dhrain . . . . 6 "W. R. Mis.|l

Not process only against the person. Bbu,*

PaRGASH v. DUMREE LaLL L

1 W. W. Ed. 1873, :^

See SooKH Moyee Dossee v. Nurmooda DoSiB

15 w. B. ;o

and Kalee Pbosad v. Digambur ChatterJEE

25 W. B, 2

5. Notice of ex pie

decree. It is not necessary that the judgm-^-
debtor should have special notice of any procesf t
enforcing an ex parte decree ; he is bound to rk
the remedy provided by s. 119, Act VIII of 1 '•>
within thirty days after execution of any proceftu
enforce the judgment. Shumboo Chunder Hoi^»
v. Ram Lall Ghose . . . 13 W. B. 3o

Applicaticjof

setting aside ex parte judgment after expiraitc ^t

( 7433 )

DIGEST OF CASES.

( 7434 )

LIMITATION ACT (XV OF 1811)— coiitd.
Schedule 11— contJ.

Art. 164— co»/d.

time limited. A Judge has no jurisdiction to grant
an application, made by a defendant against whom
an ex parte judgment has been passed, to set aside
the judgment after the expiration of the thirty days
allowed by s. 119 of the Code of Civil Procedure
for making such applications. Such an apphca-
tion must be made vithin thirty days after the
first, process for enforcing the judgment against such
defendant has been executed. Keshaveam valad

HiBACHAND V. RaMCHANDBA TrIMBAK

8 Bom. A. C. 44

Application to set

aside ex parte decree after thirty days have expired.
An apphcation by a party to set aside an ex parte
decree, which apphcation he has had an opportunity
of making within time and has neglected to do so,
should not be entertained on the supposition that
there has been collusion to defeat the defendant's
rights. AxoKAGEE KooER V. Abdoollah Khan
26 W. R. 99

Application to re-

store suit after distiiissal of ex parte case. '\\'here
the suit was dismissed in accordance with the terms
,of an order that the Official Assignee should give
security for the costs of the defendant within
fourteen days and should be made a party to the suit
within one month, and that in default of such
security the suit should be set down for dismissal
within eight days after the expiration of the time so
imited, and the Official Assignee did not apply,
irithin thirty days of the passing of the order of
■iismissal, either to the Court making the oider or to
he Appellate Court, for its reversal : — Held, that an
ipplication to the Appellate Court for reversal of an
!)rder discharging a rule nisi for the reversal of the
prder of dismissal, and for the restoration of the
luit to the board for hearing, was barred. Ibrahim
jUM Mahasim v. Abdcr Rahiman bin Ai.Li. Gam-
JJLE V. Abdur Rahiwan bin Alli 12 Bom. 257

I 9. — Execution of ex

'arte decree — Notice of execution. Notice of exe-
jution ot decree is not sufficient "process for en-
ircing" it within the meaning of Ait. 157, Sch. II,
ict IX of 187 1. Such process means actual
jroccss by attachment in execution of the person
r property of the debtor. Poorno Chunder
NDOO V. Prosonno Coomar Sikdar

I. Tj. E. 2 Gale. 123

'J. WTiere property

I'ecn attached in execution of a decree : — Held,
the date on which the property was attached,
not the date of the sale in execution, being the
of executing the first process for enforcing the
• e was the date from which hmitation should be
;iuted under Art. 1(54, Sch. II of Act XV of
". Pachuv.Jnikishen, All. Weekly Note^ USS4)
referred to. Har Prasad i'. Jafar Alt

I. L. R. 7 All. 345

LIMIT ATIONj'ACT (XVj^OF 1877)— contd.
Schedule 11— contd.

Art. 164^-contd.

11.

Ex parte judg-

ment, application for an order to set aside — Civil
Procedure Code, s. 108—" Execution of process for
enforcing the judgment.''' An ex parte order was
made against S, to whom a certificate under Act XL
of 1858 had been granted, revoking such certificate,
and granting it to A and directing S to dehver the
property of the minor to A and to render an account
of all moneys received and disbursed within thirty
days. In pursuance of this order, a precept or
injunction was served on S informing her that the
certificate granted to her had been revoked and had
been granted to A, and directing her to dehver the
property of the minor to A and to render him
accounts of aU monej-s realized and expended within
one month : — Held, that such precept or injunction
was a " process for enforcing " such ex parte order,
and that it was " executed " when it was sers-ed on
*S' within the meaning of Art. 164 of the Limitation
Act, 1877. SuNRAJ KuARi V. Ambika Prasad
Singh .... I. L. R. 6 AIL 14

12. _ Code of Civil

Procedure {Act X of 1S77), s. lOS — Ex parte decree-
Setting aside ex parte decree. An ex parte decree was
obtained against a defendant who applied to have it
set aside under s. 108 of the Civil Procedure Code.
The application was made more than thirty days
from the date of attaching the defendants' property-
in execution of the decree, but within thirty days of
the service of the sale proclamation : — Held, that the
application was barred by limitation under Art. 164,
Sch. II, Act XV of 1877. In the matter of Bhao-
bunessury. Bhaobunessury v. Judobendra
Narain Mullick . I. L. R. 9 Calc. 869

13.

Ex parte decree

— Application to set aside ex parte decree — Presidency
Small Cause Court Act (XV of 1882), s. 37. S. 37
of the Presidency Small Cause Courts Act (XV of
1882) does not apply to an ex parte decree. An
application to set aside an ex parte decree passed bj-
a Presidency Court of Small Causes falls within the
terms of s. 108 of the Code of Civil Procedure (XIV
of 1882), and the period of hmitation for such an
application is thirty days as prescribed by Art. 1(54 of
the Limitation Act. Roshanlal v. Lachmi N.ara-
Y.AN . . . . I. Ij. R. 17 Bom. 507

14.

Execution of

process for enforcing the judgment — Civil Procedure
Code, s. 108 — Application to set aside a decree passed
ex parte. The action of an amin appointed under
s. 396 of the Code of Civil Procedure in a partition
suit to demarcate the shares assigned to the respec-
tive parties to the suit is not the executing of a
process for enforcing the judgment within the
meaning of Art. 164 of the second Schedule to the
Indian Limitation Act, 1877. Duarka Xath Misser
v. Barinda Nath Misser, I. L. R. 22 Calc. 425,
referred to. Muhammad Khan v. Hanwant
Singh .... I. L. R. 20 AU. 311

( 74-^5 )

DIGEST OF CASES.

( 7436 )

lilMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. l64:~-concld.

LIMITATION ACT (XV OF 1877)— contdl.

Schedule U— contd.

Civil Procedure Code

{Act XIV of 1882), s. 108— Ex parte decree against
tnore defendants than one — Execution against some of
the defendants — Application by the other defendants to
.let aside the decree — Limitation. When a decree is
passed against more defendants than one, and the
decree is executed against some of the defendants
only, that is not a process for enforcing the judg-
ment as against the other defendants within the
meaning of Art. 164, Sch. II of the Limitation Act j
(XV of 1877). Ravji Ramchandra v. Ramji Bhai- j
kaji, {1888) P. J. 56, followed. Hanmant v. j
Sh.\nkar (1907) . I. L. R. 31 Bom. 303

Arts. 164, 169—

.See Civil Procedure Code, 1882. ss. 108,
560, 582 . I. L. R. 30 Mad. 535

Art. 165 (1871, art. 158)—

1. '■ Application for

restitution by person dispossessed — Holiday. In
calculating the period of limitation prescribed h\
Sch. II of Act IX of 1871 for applications as well
as for suits and appeals, the day on which the
order or decree appea'ed against way made
should be exchided. Consequently, where a person
having been dispossessed of property held by him
under a mortgage on the 14th of December 1875
applied on the 14th January of 1876 for restitu-
tion the 13th having been a Court holida}', it was
held that his application was within the limitation
of thirty days prescribed by Art. 158, Sch. II of
Act IX of 1871. GuRJAR V. Barve

I. L. R. 2 Bom. 673

2. — Dispossessio7i un-
der sale in execution of decree — Summary order. A
person purchased certain property at a sale in
execution of a decree in November 1878 : his
purchase was confirmed and he obtained a certi-
ficate of sale on the 23rd May 1879, from which
date he remained in possession. The judgment-
debtor applied unsuccessfully to have the sale
set aside for irregularity. He had applied,
before the sale took place, to stay the sale
on the ground that the right to apply for
execution was barred. This application was dis-
missed, but was allowed on appeal. It did not
appear that the auction -purchaser was a party to
the proceeding, or that he was cognizant of the
application. Two years from the date of the sale,
and one and a half years from its confirmation, the
judgment-debtor on a summary application obtain-
ed an order setting aside the sale and putting the
auction-purchaser out of possession : — Held, (hat
the order was erroneous, the Judge having no power
after the sale had be^n confirmed, to set aside the
sale by a summary order, and that under Art. 165
of Act XV of 1877 the application for such an order
was barred. Mahomed Hossein v. Kokil Singh

I. L. B. 7 Calc. 91 : 9 C. L. R. 53

Art. 165 — concld.

Dispossession

execution — Application on behalf of a minor objectin
to dispossessing. Limitation Act, 1877, Sch. II, Arl
165, is applicable to a case where the applicant i
a party to the decree which is being executed a
well as when he is a stranger. But an apphcatio
made on behalf of a minor objecting to dispossef
sion more than thirty days after it took place
not barred by limitation by reason of Limitatic
Act, 1877, s. 7. Ratnam Ayyar v. Krishna Do
Vital Doss . . I. L. R 21 Mad. 49
4. Execution

decree — Application by judgment-debtor, dis^}
of immoveable property, disputing the right of t
decree-holder to be put into possession. Held, th
Art. 165 of the second Schedule to the Indi
Limitation Act, 1877, is wide enough ti inclu
the case of a judgment-debtor who has been d-
possessed of immoveable property, and who di-
putes the right of the decree-holder to beputir)
possessi n. As<n)n v. PfiVuimma, I. L. R. '
Mud. -fO-l, referred to. Har Din Singh v. Lm-
MAN Singh (1900) . . I. L. R. 25 All. 3 J

Art. 166 (1871, art. 159)—

Execution — Sale in e-

cution, the judgment-debtor being ignorant of [«
execution-proceedings through the fraud of the dec'i-
holder — Setting aside proceedings in execu-tioh
Civil Procedure Code {XIV of 18 '■'2), ss. 294, If.
In 1879 D obtained a decree against S. S gavajJ-
curity for t!ie satisf icti m of tiie decree, whereu'n
D agreed not to take proceedings in executla.
In breach of this agreement, D in the same }ar
applied for execution and sold certain immove le
property belonging to S, of which K became ^e
purchaser. K did not apply for possession viil
1883, in which year he applied for and obtaed
possession of the property. .S alleged that he pn
for the first time became aware of the sale, and iat
by the fraud of D and K he had been kept in iepi-
ance of the execution-proceedings taken by .(in
breach of the abovementioned agreement, ad
within thirty days after K obtained possessicj lie
(.S') applied for a reversal of the orders whiclidd
been passed in the aforesaid fraudulent proceedii?J.
The Subordinate Judge held that the applic ion
was barred by Art. 166 of Sch. II of the Limition
Act {XV of 1877), and referred the applicant ; a
separate suit to set aside the sale. (3n apphc'ion
to the High Court :—//eW, that Art. 166 oflch.
II of the Limitation Act (XV of 1877), did not aply-
That Article, as amended by s. 108 of Act X of
1879, only applies to applications made de^
s. 31 1 or s. 294 of the Civil Procedure Code, seeing
to set aside a sale on the ground of a material ii'gu-
larity in publishing or conducting the sale, or i "D^
ground that the decree-holder has purchased 'to-
out the permission of the Court. SakhsaM
GoviND Kale v. Damodar Akharam ^„

I. L. R. 9 Bomiflo

( 7437 )

DIGEST OF CASES.

( 7438

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — conid.
Art. 167 (1871, art. 160)—

See Civil Procedure Code, 1882, ss.
318 AND 335 . I. L. R. 26 All. 365

■ Symholiral posfses-

inimo\eable property, .sold

(ion. A pui chaser ( f

n execut on of a decree must, under Act XV of
'.877, Sch. II, Art. 167, if obstructed or resisted
n endeavouring to obtain possession, apply, within
hirt;/ clays, to the Court under the directions
)f which the execution- sale was held, to be
rat into actual possession ; and if he omits to
io so within thirty days from the time when
J.-i taking possession was first obstructed or
esisted, his only remedy is by a civil suit. The
)laintiffs, on the 31st January 1803, purchased a
lalf share in a certain house at a sale in execution
)f a decree, but took no steps at the time to take
ijossession of it. In 1869 the Nazir of the Court
vas directed to put them nto possession, and gave
■hem symbolical possession. Afterwards in 1871,
he plaintiffs again with the assistance of the Nazir
intered upon, and for the space of about a minute
lemained in possession of, one of the rooms in the
lOUse, until they were turned out by the defendants.
)n the 18th of November 1870, the' plaintiffs filed a
uit, praying for a declaration of right and tor a
.lartition, and to be put into separate possession of
,he share that might be allotted to them on such
I'artition : Held, that neither the symbolical posses-
lion given to them in 180'J by the Nazir nor the
.lomentary and partial possession which they had
ibtained in 1871 was sufficient to save limitation ;
nd that, as their suit was brought on the 18th Nov-
imber 1876 more than twelve years after the 31st
January 1863, when they first became entitled to
ossession, it was now barred by limitation. Shotee-

ATH MOOKERJEE V- ObHOY NuND Roy

I. li. R. 5 Calc. 331
— Warrant for
getting possession —
328. Where a war-
execution ot

^oaaeasiorir— Obstruction
\ml Procedure Code, 18
»nt for possession of land

decree was not executed owing to the resist-
nce of the judgment-debtor in September 1880,
nd no complaint was made under s. 328 of
le Code of Civil Procedure, 1877, but a fresh
arrant for possession was applied for by and
■anted to the decree-holders and resistance was
;am made in January 1881 -.—Held, that a com-
lamt by the decree-holders as to the second ob-
niction, made within thirty days of the second
wtruction, was not barred by reason of Art. 167

och. II of the Limitation Act. Ramasek.^ra
jiLLAi V. Dharmaraya Goundan

I. L. R. 5 Mad. 113

LIMITATION ACT (XV OF 1677)— conid.
Schedule II— conid.

Civil Procedure

Petition by purchaser at

\^e,lS82 SS..31S, 331

\>urt.aak for possessio7i— Obstruction to' execution of
jorec--.4p/;eai against order. On an application
ade m 1888 under the Civil Procedure Code, s.
'»• ty the purchaser at a Court-sale (who was the

Art. 167— comld.

assignee of the decree which was being executed),
paying for delivery of possession of the property
purchased, it appeared that the sale took place in
1885, that it was confirmed in 1886, and that in
January 1887 an order was made for delivery of
possession to the purchaser. The judgment-debtor
had resisted the {purchasers efforts to obt in pos-
session in 1887, and set up in bar of the application
in 1888 an oral agreement alleged to have been
made between him and the purcha.ser. The appli-
cation was rejected. Held, that the application,
not being a complaint of obstruction, was not
barred by limitation, and should be heard and
determined on the merits. Muttia v. Avi\\s\mi
I. L. R. 13 Mad. 504

4- Minor — Purchase

on behalf of a minor during 'minority — Agent of
minor, omission of, to apply within thirty days to re-
move obstruction of third party in execution- proceed-
ings— Minor's right to apply for possession within
three years from the time he comes of age — Civil Pro-
cedure Code {XIV of 1882), s. 33.5. In 1877, at
a sale held in execution of a decree, certain pro-
perty was purchased on behalf of the applicant,
who was then a minor, bj- the agent hominated
by his guardian. An order for delivery of posses-
sion was made ; but a third party having obstructed
the order was returned unexecuted. No further pro-
ceedings were taken by the agent. The applicant
having come of age, applied for delivery of posses-
sion within three years from the date of his attain-
ing majority, but more than thirty days after the
date of the obstruction and more than thirty days
after he came of age. The Subordinate Judge
rejected the appHcation as barred, being of opinion
that the omission to apply, within thirty days from
the date of the obstruction, on the part of the appli-
cant's agent, as well as the applicant's omission to
do so within a similar period after he came of age,
barred the applicant, whose remedy lay in a fresh
suit : — Held, by the High Court, that the application
was rightly rejected. It was virtually an attempt
to renew the old proceedings, and was barred by
Art. 167 of Sch. 11 of the Limitation Act. If the
applicant intended to proceed summarily under the
Civil Procedure Code, he should have taken pro-
ceedings within a month after lie came of age.
Vinayakrav Amrit v. Devrav Go^^ND

I. L. R. 11 Bom. 473
— Art. 168 (1871, art. 161. Civil

Procedure Code, 1859, s. 347)—

1. ' Time for appeal

— Civil Procedure Code, 1859, s. 347. To bring an
appellant within the terms of s. 347 of the (.'ode of
Civil Procedure, 1859, so as give to the Court juris-
diction, his application for re-admission of the
appeal dismissed for default of prosecution had to
be made within thirty days from the date of the
dismissal. Mittoo Khan v. Ruhmax Khan

8 W. R. 361

( 7439 )

DIGEST OF CASES.

( 7440 )

LIMITATION ACT (XV OF 1877)— conid.

Schedule II— conti.
^Art. 168~concld.

In such an application the Judge is bound to see
whether the reasons set forth for re-admission are
satisfactory or not. Shomaed Ali Sowdagtjr v.
EusooF Khan Chowdhry . 15 W. E. 80

2. ■ Application for re-
admission of appeal. The time allowed by s. 347 of
Act VIII of 1859 within which to apply for the re-
admission of an appeal dismissed for default of pro-
secution should not, where the appellant's pleader
has died without his hearing of it, be counted as
commencing until the appellant has an opportunity
of coming in under the provision of Regulation II of
1827, s. 54, cl. 2. Er parte Alikhan Umarkhan
4 Bom. A. C. 92
■Application for re-

admission of appeal dismissed on failure to deposit
costs of paper-book — High Court Rules, Part II, Ch.
VIII, Rule 17— Civil Procedure Code, 1882, s. 558.
The appellant in an appeal from an original decree
having failed to deposit the estimated amount of
costs for the preparation of the paper-book, the
appeal was dismissed under Rule 17 of the High
Court Rules, Part II, Cb. VIII. An application for
re-admission of tlie appeal was then made on behalf
of the appellant ; and a rule was granted by a
Division Bench calling upon the opposite side to
show cause -. Held (by Peixsep and Ghose, J J. ),
that the appHcation was not one under s. 558 of
the Civil Procedure Code, that it was not barred
under Art. 168 of the Limitation Act ; that it was
an apphcation under the Rules of the Court ; and
that the law of Umitation did not apply to such an
apphcation. Ramhari Sahu v. Madajj Mohan
MiTTER . . I. li. R. 23 Calc. 389

See Fatimunissa v. Deoki Proshad

I. L. R. 24 Calc. 350

Ikbal Hossain v. Deokie Pershad

1 C, W. N. 21

Art. 170 (1871, art. 162)—

and Art. Y1S~ Application for leave

to appeal in forma pauperis. Plaintiffs filed a
suit for partition, which was dismissed on the
9th December 1890. On the 17th March 1891,
plaintiffs presented an appeal to the High Court on
a Court-fee stamp of RIO. On the 18th January
1892, the High Court held that the memorandum of
appeal was insufficiently stamped, being charge-
able with an ad valorem stamp on the value of the
plaintiffs' share. On the 16th February 1892,
plaintiffs applied for leave to appeal in forma pau-
peris. This application was granted ex parte.
At the hearing of the appeal, however, the respond-
ent contended that the pauper appeal was time-
barred : — Held, that the application for leave to ap-
peal in forma pauperis, having been presented be-
yond the thirty days allowed by Art. 170 of the
Limitation Act (XV of 1877), was barred by limi-
tation. The pauper appeal could not therefore be

LIMITATION ACT (XV OF 1877)-con«f

Schedule 11— contd.
Art. YlO—concld.

proceeded with. Art. 178 of the Limitation I;
had no application to the present case. Mahad-
Balvant v. Lakshman Balvant

I. L. E. 19 Bom. }
Arts. 171, 171A, and 171B—

See Abatement of Suit — Appeals.

I. L. E. 7 AIL 693 ; 71
See Abatement of Suit — Suits.
I. L. E. 5 Calc. 139 : 4 C. L. R. 31

1. Art, 111— Death of appella. -

Civil Procedure Code, 1877, ss. 365 and 56 -
Application for substitution of heir to allow execwa
to proceed. A suit was instituted and a deee
obtained in the Court of first instance while it
VIII of of 1859 was in force, but the second dec^e
was made and the second or special appeal prefei d
after Act X of 1877 became law. Pending theh c-
ing of such special appeal, on the 21st April 18,
the plaintiff, who was also appellant died and onie
16th August in the same year, or more than si;y
days after his father's death, his son and sole Ir,
applied to the Court to be substituted as appeht
in place of the deceased, for the purpose of prose t-
ing the appeal -.-Held, that the application wasot
made under s. 365, but under s. 587 of Act ]of
1877, as incorporated with the former section id
was therefore not barred by Art. 171, Sch. II of ct
XV of 1877. Where the language of an Ac of
Limitation specifies the particular cases for wch
a period of limitation is provided, the Court o ht
not to interpret that language so as to incde
cases not faUing within the strict meaning oihe
words used. In the matter of Ram Sunj-R
Bhadory .... 3C. L.B. 10

2. Abatement ofnt

— Death of sole plaintiff after decree — Civil Procure
Code, 1877, ss. 365, 372. A sole plaintiff having ed
after decree, an application was made more an
sixty days after his death by his legal represita-
tive for an order that his name might be substited
on the record for that of the original plaintiff, nd
that a sum of money, to which the original plaiiff»
if alive, would have been entitled, might be pc to
him, the legal representative •.—Held, that s. 3 of
the Civil Procedure Code did not apply to thetae,
that section contemplating a proceeding beforche
determination of the suit ; and further thatthfr
apphcation was barred by Act XV of 1877, So II»
Art. 171. Held, also, that s. 232 had no applicion.
S. 365 of the Civil Procedure Code (amended b-4ct
XII of 1879, s. 61) does not apply to the ca of
a sole plaintiff dying after decree, the rig- to
sue being merged in the decree. Cally C kN
MuLLiCK V. Bhuggobutty Churn Mullick

5 C. L. E^0&

3. Death of fl'->^^9

and substitution of his representatives as pay '*
suit. If a plaintiff dies after decree, his rep:»en-

( 7441 )

DIGEST OF CASES.

( 7442 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 171 — contd.

tatives are not bound to apply within sixty days to
be made parties to the suit, but have the same time
to file an appeal as the plaintiii would have had.
The Civil Procedure Code, s-s. 363, 365, and the
Limitation Act, Sch. II, Art. 171, do not apply to
the case of a plaintiff dying after decree. Rama-
SADA Sastei v. Minatchi Ammal

I. L. R. 3 Mad. 236

4. Civil Procedure

Code,lS77, ss. 363, 36.5— Abatement of execution-
roceedings — Eepresentative. The provision of the
Limitation Act (XV of 1877), Sch. II, Art. 171,
ivhich gives a period of sixty days to a person
claiming to be the legal representative of a
ieceased plaintiff under s. 363 or 365 of the Code
>{ Civil Procedure does not apply to the representa-
iveofa deceased judgment-creditor claiming ad-
nission to continue execution-proceedings com-
renced by him. Such a representative may come
natany time, subject always to the same condi-
ions as would have appUed to the plaintiff
limself GuLABDAS v. Lakshman Narhar

I. L. K. 3 Bom. 221

5. — and Art. 171B— .4c« XII

i 1S79, ss. 60 and IDS— Deceased defendant— Ap-

iication lo make legal rejyresentative defendant.

j'ubsequently to the institution of the plaintiff. s' suit

jneof the defendants died, and his son as his legal

-^Jpreseutative, was made a defendant in his stead.

j'he new defendant objected, inter alia, that his

ither had been dead more than six months before

jie application of the plaintiffs to make him a

^efendant, and that therefore the suit should abate

|3 provided by the last clause of s. 368 of the Civil

'rocedure Code, Act X of 1877 (introduced by the

^mending Act XII of 1879) and Art. 171B of the

limitation Act XV of 1877, which prescribes

( period of sixty days within whiclj an applica-

|on should be made to have the representative of a

Ieceased defendant made a defendant to a suit.

I'hen the amending Act XII of 1879 was passed, —

ii»t is on the 29th of July 1879,— the original de-

ndant had been dead nmre than six months ;

lit the plaintiff made an application to have the

Ipresentative of the deceased defendant made a

'fendant before the publication of the Act in the

caI Gazette -.—Held, that the provisions of Art.

IB of the Limitation Act should not have re-

ospective effect, and that the plaintffs' appH-

ti^'H was net time-barred. Khusalbhai v.

^SHAi . . . I. L. R. 6 Bom. 26

^ — Civil Procedurr Code

■■ -Y/F of 1SS2), ss. 3, 36S, 5S2— Respondent,
of— Practice— Substitution of partic-^. Having
'1 to s. 3 of Act XIV of 1882 it is clear that the
■' Code ■' in Sch. n. Art. 171B, of Act XV of
appUes to the present Code of Civil Procedure,
MV of 1882 ; and that therefore the word
' tendant " in s. 368 of that Code, when read with

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

-Art. HI— contd.

s. 582 must be held to include '' respondent." In
the matter of the petition of Sosni Bhcsan Chand.
SoSHi Bhusan Chand v. Geish Chukder Talukh-
DAB . . . . I. L. R. 11 Calc. 694

and Arts. 171 A, 171B—

Civil Procedure Code (Act XIV of ISS'J), s. 582 —
Respondent, decea.se of, after appeal filed — Defendant.
Held, by the Full Bench, that the word " defend-
ant " in Art. 17 IB of the Limitation Act does not
include a respondent. S. 582 of Act XIV of 1882
affects only proceedings under the Code, and does
not extend the operation of any portion of Limita-
tion Act. Udit Nabain Singh v. Habogottri
Prosad . . . I. L. R. 12 Calc. 590

8. and Art. 171B— .4 pp/ica-

tion to sue in forma pauperis — Death of opponent —
Substitution of heirs — Subsequent granting of appli'
cation — Code of Civil Procedure, 1SS2, ss. 4S, 36S,
and 410. Neither Art. 17 IB of Sch. II of Act XV of
1877 nor any other section of the Law of Limitation
appUes to an inquiry into a claim to sue in m forma
pauperis, and there is no limitation of t^me within
which a mere applicant to sue as a pauper is bound
to apply for the substitution of the name of a de-
ceased opponent's heir in place of such opponent.
Art. 17 IB ai^phes to applications made under s. 368
of the Code of Civil Procedure, which section only
applies to the case of the death of a party to a suit,
presupposing therefore the institution of a suit ; and
in the case of an application to sue in forma pau-
peris, no suit is instituted until the application is
granted when by s. 410 it is deemed the plaint in
the suit. Janardan Vithal v. Anant Mahadev

I, L. R. 7 Bom. 373

9. Appeal, abatement

of — Application for declaration of insolvency —
Appeal from order rejecting application — Death of
decreeholder-respondent — No application by appellant
for substitution of deceased's representative — Civil
Procedure Code, ss. 344-348, 350, 351, 36S. The
decree-holder-respondent, in an appeal from an order
refusing an apphcation by the judgment-debtor for
declaration of insolvency under s. 344 of the Civil
Procedure Code, died and the judgment-debtor, ap-
pellant, took no steps to have the legal rej)resen-
tative of the deceased substituted as respondent in
his place :—//eW, that Art. 17 IB, Sch. II of the
Limitation Act (XV of 1877), apphed to the
case, and that, as no one had been brought on
the record to represent the deceased respondent
within the period prescribed, the appeal must
abate. Per Mahmood, J., that whatever the posi-
tion of the parties might have been in the
regular suit in the insolvency proceedings, the
judgment-debtor occupied a position analogous to
that of a plaintiff, and the decree-holder occupied
the position of a defendant. Narain Das v. Laija
Ram, I. L. R. 7 All. 693, in which Mahmood, J.y

( 7443 )

DIGEST OF CASES.

( 7444

XIMITATION ACT (XV OF 1871)— contd.

Schedule II — conM.
Art. ni—contd.

differed from the decision of the Full Bench, dis-
tinguished. Rameshar Singh v. Bisheshar Singh
I. L. R. 7 All. 734

10. — and Art. 171B— Per curiam

(Kernan, J., dissenting). An apphcation by an
appellant to make the representative of a deceased
respondent party to the appeal does not fall under
Art. 171B, but under Art. 178 of Sch. II of the
Limitation Act, 1871. Lakshmi v. Ski Devi

I. L. R. 9 Mad. 1

11. Civil Procedure

Code (XIV of 18S2), ss. 368, 582— Decease of
respondent after appeal filed. The word " defend-
ant " in Art. 171B of Sch. II of the Limitation
Act (XV of 1877) does not include " respondent."
Balkrishna Gopal v. Bal Joshi Sadasiv Joshi

I. L. R. 10 Bom. 663

12.. Art. niB—Appeal— Death of

defendant-respondent — Civil Procedure Code, ss. 368,
582. Art. 171B, Sch. II of the Limitation Act
(XV of 1877), applies to appHcations to have the
representative of a deceased defendant-respondent
made a respondent. Baldeo v. Bismili.ah Begam
I. L. R. 9 All. 118

13. _ . Death of defendant-
respondent — Application by plaint iff -appellant to have
representative of deceased substituted as respondent
— Civil Procedure Code. ss. 3, 368. 582. Held, by
the Full Bench (Mahmood, J., dissenting), that Art.
171B of the second schedule of the Limitation Act
does not apply to the death of a respondent whether
plaintiff or defendant in the original suit and that
Art. 178 applies to an application made by a plaintiff-
appellant to bring upon the record the representa-
tion of a deceased defendant-respondent. Narain
Dass v. Lajja Ram, I. L. R. 7 All. 693, and Bal-
krishna Gopal V. Bal Joshi, I. L. R. 10 Bom. 663,
referred to. Baldeo v Bismillah Begam., I. L. R. 9
All. 118, and Ramesher Singh v. Bisheshar Singh,
I. L. R. 7 All. 734, overruled. Held, by Mah-
MOOD, J., contra, that the word " defendant " in Art.
17 IB includes a defendant-respondent and, reading
Art. 17 IB with cl. 2 of s. 3 in conjunction with
ss. 368 and 582 of the Civil Procedure Code,
includes also a plaintiff-respondent ; and that an
application made by a plaintiff-appellant more
than sixty days after the defendant-respondent's
death to have the representative of a deceased made
a respondent is barred by limitation, and the appeal
is liable to abatement. Soshi Bhusan Chand v.
€rish Chunder Taluqdar, I. L. R. 11 Co.lc. 694,
referred to. Debi Din v. Chunna Lal

I. li. R. 10 All. 264

14. and Art. 178— Death of

plaintiff -respondent — Application by defendants-
appellants for substitution of legal representative
—Civil Procedure Code, ss. 3, 368, 582. The judg
ment of the majority of the Full Bench in Narain
Dass v. Lafja Ram, I. L. R. 7 All. 693, only de-

IiIMITATION ACT (XV OF 1811)— contd
Schedule II — contd.

Art. ni—concld. |

cided that Art. 17 IB, Sch. II of the Limitation A
of 1877, did not apply to an application by a defei-
ant-appellant to have the' representative oil
deceased plaintiff-respondent made a responde .
Art. 178 applies to such applications. So held, y
the Full Bench, Mahmood, J., dissenting. W,
by Mahmood, J., that by reason of s. 3 (read vh
ss. 368 and 582) of the Civil Procedure Code, e
word " defendant " in Art. 171B of the Limitam
Act necessarily includes a plaintiffs-respond(t.
Soshi Rhusan Chand v. Grish Chunder Talucf,
I. L. R. 11 Calc. 694, referred to. Chajmal s
v. Jagdamba Prasad . I. L. R. 10 All. SO

15. and Art. 11 9— A pplicaiio%y

representative of judg ment -creditor to contue
execution of decree. The provision of the Li-
tation Actj(XVof 1877), Sch. II, Art. 171, w);h
gives a period of sixty days to a penn
claiming to be the legal representative ( a
deceased plaintiff under s. 363 or 365of
the Code of Civil Procedure, does not apply tone
representative of a deceased judgment-crecor
claiming admission to continue execution-procd-
ings commenced by him. The Code of Civil Pie-
dure (Act X) of 1877 does not provide that appa-
tions for execution shall, like suits, abate byhe
death of the judgment-creditor ; such represti:a-
tive may therefore come in at any time as his ira-
ing in is contemplated in Art. 179, e x plana tioni of
Sch. II of the Limitation Act, subject always tphe
same conditions as would apply to his princ^al.
Gulabdas v. Lakshaian Narhar !

I. li. R. 3 Bom.J21

Art. 173 (1871, Art. 164)-

See ante, s. 5 and Sch. II, Art. 173.

1. 31ofussil

Cause Courts Act, XI of 1865, s. 21— Ni"
— Review. Where the circumstances of a case
mofussil Small Couse Court admit a new trii u,"
application for such new trial is governed byl 21
of Act XI of 1865, which is still in force nnf ^i-
standing the right of review given by s. 623 >
Civil Procedure Code. But where the circumsi

of a case do not admit of a new trial, butdo I'^i
of a review, then the time within which an apMia-
tion for review should be made is to be gov|ned
by Art. 173, Sch. II of Act XV of 1877. ^^'^^
Mohon Poddar v. Ptjrno Chundra Pcebot

I. L. R. 10 Galeae?

2. Amendme oj

decree by orders in execution. Where the first Cjirt s
decree in favoixr of the plaintiff was up Id ^
appeal, but in the course of the executir^ pro-
ceedings the lower Appellate Court held tit it
judgment did not mean to upheld that dec" on
its entirety, it was held that this order wa^i tn^
nature of an amendment of the decree, an that
the ninety days allowed for an applicati< lor

( 7445

DIGEST OF CASES.

( 7446

[MITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 173— concld.

liew should count from the date of such order.
,Ti,OBHUDDUR Mahantee V. Mfdhoosoodun
>SDKY . . 23 W. R.'.433

Art. 173A—

See Mortgage — Sale op Mortgaged
Property — Purchasers.

I. L. R. 24 Mad. 412
See Transfer of Property Act, s. 89.
8 C. W. H". 102

Arts. 173A, 179—

;Siee Execution of Decree.

I. L. R. 30 Mad. 537

Art. 175—

See Civil, Procedure Code. 1882, ■''. 371.
9 C. W. N. 369
See Decree— Alteration or Amend-
ment OF Decree.

I. L. R. 14 Caic. 348
See Limitation Act. 1877, Art. 179 — Or-
der FOR Payment at Specified
Dates. . I. L. R. 14 Calc. 348

— Art. 175A—

See Abatement of Suit — Appeals.

I. L. R. 23 Mad. 125

See P.4RTIES — Substitution of Parties
—Plaintiffs . I. L. R. 27 Bom. 162

-j— Substitution, applica-

i\ for — Applicaticn after preliminary decree for sale
*.rnartgage-suit — Mortgagee, death of — Apflic<itiorh
i.heirs—Trmsfcr of Property Act {IV of 18S2), s.
i -Conditional decree, effect of. Where a mort-
Jlee having obtained a preliminary decree for
* under s. 88, Transfer of Property Act, died
*i his heirs more than six months after his death
«j liwl to be brought on the record in the place of
ti deceased and to have an order absolute for
«j made in their favour : Held, that the applica-
t(i for substitution was not governed by Art.
1|A ofSch. II of the Limitation Act. AppHca-
tls governed by Art. 175A of Sch. II of the
JjJtation Act are appHcations for substitution
^\e in the course of the suit. After a conditional
oi'ee for sale is passed on a mortgage the suit as
«|^i 19 at an end. Ajudhia Pershad v. Betldeo
«I'A. /. L. R. 21 Calc. SIS, and Tara Prosad Boy
^,hobodeb Roy, I. L. R. 22 Calc. 931, referred to.'
*jiARi BiBi V. Yakub Alt (1906)

11 C. W. N. 156
Art. 175C—

See Abatement of Suit— A.ppeals.

I. L. R. 11 AIL 408

-See Appeal, abatement of.

I. L. R. 31 Calc. 487

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — coiild.
Art. 11 5C— contd.

See Civil Procedure Code, 1882. ss. 368,

582, 587 . . 2 C. W. N. 442

I. L. R. 29 All. 535

See Parties — Substitution of Parties

—Respondent I. L. R. 11 All. 408

See Second Appeal, abatement of.

I. L. R. 34 Calc. 1020

Art. 175C and Art. 178-

Substitution of the heirs of deceased defendant — Civil
Procedure Code, 1SS9, ss. 36S, 372 — Substitution of
parties. After the institution of a suit for dissolution
of a partnership, two of the defendants died. More
than a year after their death, the plaintiffs applied
to have the legal representatives of the deceased
entered on the record. The Subordinate Judge
granted this application, holding that the case was
governed by s. 372 of the Code of Civil Procedure
(Act XIV of 1882), and that the appUcation was
therefore within time under Art. 178 of the Limita-
tion Act (XV of 1877) -.—Held, that the case was
governed by s. 368, and not s. 372 of the Civil
Procedure Code. The application for substitution
of the heirs of the deceased defendants o"ught to
have been made within six months as provided by
Art. 175C of the Limitation Act and was barred
unless the delay was sufficiently explained. .Jamna-

DAS ChHABILDAS V. SORABJI KhARSEDJI

I. L. R. 16 Bom. 27

Art.

17.5 (c)

applies to applications made in second appeals as
well as first appeals — Civil Procedure Code (Act
XIV of 1SS2), ss. 36S, 582, 5S7. S. .587 of the
Code of Civil Procedure authorises an appHca-
tion to bring in a plaintiff-respondent in second
appeals and extends to such appeals the provisions
of ss. 368 and 582 of the Code of Civil Procedure.
Such appHcations, however, are really made under
ss. 368 and 582 and for the purposes of limitation
fall under Art. 175 (c) of Sch. II of the Limitation
Act and not under Art. 178. Vakkalagadda
Naraslmham v. Vahizulla Sahib (1905)

I. L. R. 28 Mad. 498

Second appeal —

Application to bring in legal representatives of
deceased respondent in second appeal — Limitation
Act {XV of 1877), Sch. II, Art. 175C—Code of Civil
Procedure {Act XIV of 1SS2), ss. 6S7, .5S2—Abate-
ment — Death of one of several respondents pending
appeal. The period of limitation laid down in
Art. 175C, Sch. II, of the Limitation Act, for an
application to bring in the heirs of a deceased
party applies to second appeals. S. 587 of the Code
of Civil Procedure must be read in conjunction
with s. 582 of the Cide and Art. 175C, Sch. II of
the Limitation Act. Mudhuban Das v. Narain Das
4 All. L. J. 397, referred to. Susija Pillai v.
Aii/akannu Pillai, I. L. R. 29 Mad. .529, dissented
from. Where one of the plaintiffs respondents in

( 7447 )

DIGEST OF CASES.

( 7448 )

lilMITATIOK" ACT (XV OF 1877)— conid.
Schedule II — contd.

Art. nSC—concld.

a second appeal against a decree for rent passed
in theic favour had died and no application was
made to bring in his heirs within the period
allowed by Art. 175C, Sch. II of the Limitation
Act : — Held, that the appeal had abated so far as
the deceased respondent was concerned, but that
the appellants were entitled to go on with the
appeal as against the other respondents. Chandar-
sang Versahhai v. Khimabhai Raghabhai, I. L. R.
22 Bom. 71S, referred to. Upendra Kumar
Chakravarti v. Sham Lal Mandal (1907)

I. L. R. 34 Calc. 1020
4. Civil Procedure

Code (.Act XIV of 1882), ss. 368, 582, 587— Applica-
tion, to bring on to the record the heirs of a deceased
respondent — Limitation. Held, that Art. 175C of
the second Schedule to the Indian Limitation Act
applies as well to appeals from appellate decrees as
to appeals from original decrees. Susya Pillai
V. Aiyakannu Pillai, 1. L. R. 29 Mad. 529, dissented
from. V aMalagadda Narasimham v. Vahizulla
Sahib, I. L. R. 28 Mad. 498, followed. Madhtjban
Das v. Narain Das (1907) I. L. E. 29 All. 535

Arts. 175 (e), 118— Art. 178 applies

to applications to bring in representatives of
deceased respondent in second appeals — Civil Pro-
cedure Code (Act XIV of 1882), ss. 582, 587. The
reference to s. 582 of the Code of Civil Procedure
in Art. 175 (e) of Sch. II of the Limitation Act does
not include by implication second appeals referred
to in s. 587 of the Code of Civil Procedure. The
period of limitation for bringing in the represen-
tative of a deceased respondent in a second appeal
is not that prescribed by Art. 175 (e) of Sch. II of
the Limitation Act, but that prescribed by Art.
178. Lakihmi v. Sri Devi, I. L. R. 9 3Iad. 1,
followed. ValikalagaddaNarasimhamv. Vabhizulla
Sahib, I. L. R. 28 Mad. 498, overruled. Sijsya
Pillai v. Aiyakannu Pillai (1900)

I. L. R. 29 Mad. 529

' 1.

Art. 176 (1871, art. 165)-

Application — Filing award by arbitrators — Civil
Procedure Code, 1877, s. 516. The act of an
arbitrator, in handing in an award to the proper
officer of the Court for the purpose of the award
being filed, cannot be considered as an " applica-
tion " within the meaning of the Limitation Act.
Roberts v. Harrison

I. L. R. 7 Calc. 333 : 9 C. L. R. 209

2. — Execution of decree

• — Limitation — Execution temporarily suspended by
action of Court. A decree-holder in whose
favour a decree for sale on a mortgage and a
subsequent order absolute for sale had been
passed on the 27th May 1891 and the 3rd of
February 1892, respectively, applied on the 24th
April 1893 for sale of the mortgaged property.
One of the judgment-debtors instituted a suit
to set aside the decree on the ground of fraud,

LIMITATION- ACT (XV OP 1817)— contd

Schedule 11— contd.
Art. 176— concld.

and on the 15th of December 1893 obtained i
injunction restraining further proceedings in exer-
tion pending the decision of the suit, and ultimat r
a decree setting aside on the ground of fraud 1;
decree of the 27th of May 1891. In appeal, howe\ ,
the decree of the 27th of May 1891 was, on the .1
of April 1895, restored, the judgment-debtor's ft
being dismissed ; and this judgment was aflSrni
by the High Court on the 4th of August 18.
On the 23rd of June 1899, the decree-holder ago
apphed for execution of the decree of the 27t .f
May 1891 :— Z^eZc^, that Art. 178 of the seed
Schedule to the Indian Limitation Act, 1}?,
applied, that time began to run against le
decree-holder from the 8th of April 1895, when e
bar to execution, which had been imposed by e
injunction and subsequent decree obtained by.e
judgment-debtor was removed, and that le
decree-holder's application for execution was tie-
barred. Chunni Kunwar v. Durga Praxad, U.
WecHy Notes (1887) 29; Shaik 31oheeooddeerv.
Shaikh Ahmed Hossein, 14 W. R. 384 ; and Daaj
Singh v. Karan Khan, I. L. R. 19 All. 71', rer-
redto. RuDDAR Singh v. Dhanpal Singh (14)
I. L. R. 26 AIL )6

1. Art. 177 —Civil Procedure Ck,

s. 598 — Application for certificate for appeato
Privy Council. In computing the period of liit-
ation for an application for a certificate admi'pg
an appeal to Her Majesty in Council, the time clu-
pied in obtaining copies of the decree and judgi'nt
sought to be appealed against cannot be exclwd,
s. 12 not being apphcable. Anderson v. Pebia'mi
I. L. R. 15 Mad.39
Civil Proc<{tre

Code, s. 599 — General Clauses Act (7 of i>').
3. 3, cl. (1) — Civil Procedure Code AmenderU
Act {VII of 1888), s. 57— Application for 3»e
to appeal to Her Majesty in Council. S. 5, of
Act No. XIV of 1882 is not inconsistent !ith
Art. 177 of Sch. II of Act XV of 18! a»
read in conjunction with the provisions cent
in the sections of that Act which are applica!
Art 177. The limitation therefore for an applii
for leave to appeal to Her Majesty in Council v^
months from the date of the decree to appealj Jm
which leave is sought. The provisions of the si-nd
paragraph of s. 5 of Act XV of 1877 do not eena
to apphcations for leave to appeal to HerM'^ty
in Council. Fazul-un-nissa Begam v. Mulo, I. -»•
6 All. 250 : Burjore v. Bhagana, I. L. R. 10 '«c-
557 ; L. R. 11 I. A. 7 ; Lakshmi v. A^rda
Shanbaga I. L. R. 2 Mad. 230, and Ganga '' v-
BulwantGir, All. Weekly Notes [1881) 130, urK^^
to. In the matter of the petition of Sita -^m
Kesho . . . . I. L. R. 15 &■ ^*

3. Civil Pro^'^^'

Code, 1882, ss. 596, 598, and 599—Lim!t'0^

Act (XV of 1877), s. 7— Application to

dmii

( 7449 )

DIGEST OF CASES.

( 7450 )

1 CITATION ACT (XV OF 1877)— conid.

Schedule II — contd.
^ Art. m—condd.

Oi'dto Privy Council — Disability by reason of
^yrity— Deduction of time. In 1885 the High'
0;t in appeal passed a decree to which a
mn- under the Court of Wards was a party.
Hing attained his majority in 1894, he
30 ht to appeal to Her Majesty in Council, and
pi mted an appeal wthin six months of the date
w!i he attained majority. On an appHcation
ui T the Civil Procedure Code, s. 598 -. — Held, that
th ipplication was barred by limitation. Thurai
K. VH V. Jainilabdeen Rowthan

I. L. R. 18 Mad.|484

and [s. 112 — Application l\ for

Itc to appeal to Privy Council — Time requisite
foiblaining copy of judg?nent. Held per Stuart,
O- (Spankie, J., dissenting), that in computing
thi oeriod of limitation prescribed by Art. 177,
Sell of Act XV of 1877, for an application for
lea to appeal to Her Majesty in Council, the time
ie( site for obtaining a copy of the judgment on
wbi the decree against which leave to appeal is
801 it is founded cannot be excluded under the pro-
ns'is of s. 12 of Act XV of 1877. Jawahir Lal
«.] RAIN Das . . I. L. E. 1 All. 644

t; ■ Application for

lea' to appeal to Privy Council — Tiine for presen-

i'it\ of application — Limitation Act {XV of 1S77),

S3, and 12 — Civil Procedure Code, 1S82, s. 59 S.

An pphcation for leave to appeal to the Privy

C'oi !il must be made within six months from the

liat if decree. Such an application is not an appeal

"omputing the period of limitation the time

' for obtaining a copy of the decree cannot

i'led. Moroba Ramch-^ndra v. Ghanasham

muntNadkarni . I. L. R. 19 Bom. 301

— ' Art. 178—

See Civil Procedure Code (Act XIV of
1882), s. 318 , I. li. R. 30 AIL 390
See Hindu Law — Debts.

I . L. R. 33 Bom. 39
See Insolvency — Insolvent Debtors
under Civil Procedure Code —
Execution of Decree.

I. L. E. 30 Gale. 407
.See Legal Representative.

11 C. W. N. 186
See Practice — Civil Cases — Parties.

I. L. R. 30 Calc. 609
See Sale in Execution of Decree —
Invalid Sales — Fraud,

5 C. W. K". 265

„ , — Applications to enforce

*, [inmary decision " were provided for in s. 22
XIV of 1859, and this was continued in
•' of Act IX of 1871, the period of limita-
:igone year. The provision was omitted
I resent Act, but this Article (178) includ-

LIMITATION ACT (XV OF 1877)— confd.

Schedule II — contd.
Art. 178 — contd.

ing " applications for which no period of limita.
tion is provided elsewhere in the Schedule " has
been inserted. Apphcations formcrlv coming under
s. 22 of the Act of 1859 and Art. 166 of the Act of
1871, if not otherwise expressly provided for, would
presumably therefore now come under Art. 178.

1. Act XIV of 1859,

s. 22 — Summary decision. The words "summary
decision, as used in s. 22, Act XIV of 1859," meant a
decision of the Civil Court not being a decree made
in a regular suit or appeal. Under s. 22, Act
XIV of 1859, the period for enforcement of such
decision was one year from the time it was passed.
Ramdhan Mandai, v. Rameswar Bhattacharjeb
2 B. li. R. A. C. 235 : 11 W. R. 117

Act XIV of 1859,

s. 22 — Decree under Act XIX of 1841 — Summary
order. A decree passed under Act XIX of 1841
on a claim to a certain share of property by right
of succession was a summary order, and therefore
subject to the Hmitationof one year provided by s.
22, Act XIV of 1859. Mazedoonissa Beebee u.
FuEZUN Beebee . . 4 W. R. i^is. 6

-Summary decision

under Beng. Reg. VII of 1799. To a process of
execution to enforce a summary decision of the reve-
nue authorities under Regulation VII of 1799, Act
XIV of 1859 is liild applicable ; and no proceeding
in execution having been taken out to enforce such
decision or to keep the same in force within one 3'ear
next preceding the application for such execution,
it was held barred by limitation. Luchmee
Kant Ghose v. Bamun Dass Mookerjee

17 W. R. 472

Act XIV of 1859,
s. 22 — Summary decision. Semhle .- An order under

summary

246 of the Civil Procedure Code was a

decision within the meaning of s. 22 of the Limita-
tion Act. Mancharam Kaliandas v. Ratilal
Lalshankar . .6 Bom. A. C. 39

5. Act XIV of 1859,

s. 22 — Summary decision. An order awarding pos-
session under s. 15, Act XIV of 1859, was a sum-
mary award to which the provisions of s. 22 were
applicable. A summary decision is not a final one
on the matter at issue between the parties. In the
matter of Nuboo Kishen Mookerjee

11 W. R. 188

-Act XIV of 1859,

s. 22 — Order for costs in execution of decree. An
order for costs made as a contested matter in
execution of a decree was not a " summarv decision
or award " within s. 22, Act XIV of 1859, but
an " order " under s. 20. Puresh Narain Roy v.
Dnlrymple, 9 W. R. 458, followed. Mohan Lall
SuKUL v. Ulfutunnisa

5 B. L R- 164 note : 11 W. R. 98

( 7451 )

DIGEST OF CASES.

( 7452 )

LIMITATION ACT (XV OP 1871)— contd.
Schedule II— contd.

Art. 178— contd.

7. : Act XI V of 1859,

s. 22 — Order dismissing application for execution.
An order of a Court dismissing an application for
execution of a decree, on the ground that it was
barred by the Law of Limitation was not a " sum-
mary decision " within the meaning of s. 20. It
was an order within the meaning of s. 22 of that
Act. Dhiraj Mahtab Chand Bahadoor v. Bacha-

RAM HaZRA

5 B. L. R. 162 : 13 W. B. T. B. 74

Act XIV of 1859,

s. 22 — Summary order. A judgment-creditor having
in execution taken possession of lands in excess of
his decree, objection was raised and a case insti-
tuted in which adju.lication was made in favour of
the judgment-debtor, the order for restoration of
tlie excess land being confirmed in appeal : — Held,
that this order was not a summary one within the
meaning of s. 22, and that an application for its
execution was governed by the three years'
limitation. Roop Mtjngtjl Singh v. Chooramtjn
Singh . . . . 16 W. E. 182

9. Act XIV of 1858,

s. 22 — Decree under Registration Act, 1866, s. 53,
Quare : Whether a decree passed under s. 53 of the
Registration Act was or was not a summary decree
within the uieaning of Act XIV of 1859, s. 22.

HURNATH ChATTERJEE V. FuTTICK ChUNDER SuMA-

PAR 18W. 11.512

10.

Act IX of 1871,

Art. 166 — Application for execution of decree — Regis-
tration Act, 1866, s. 53. An application for the exe-
cution of a decree made under s. 53 of Act XX of
1866 fell within Art. 166, and not within Art. 167,
Sch. II of Act IX of 1871. Jai Shankar V. Tctley,
I. L. R. 1 All. 586, dissented from. A proceeding
under s. 53 of Act XX of 1806, though in the
nature of a suit, was not a regular suit, and a decree
made in such a proceeding was a decision of a Civil
Court other than a decree passed in a regular suit.
On the 13th July 1872 the appellant obtained a
decree, under s. 53, Act XX of 1866, on a bond
s])ecially registered under s. 52 of that Act. He
applied for the execution of it, — first on the 2nd
September 1872 and again on the 18th August 1875.
The Court made an order on the 15th November
1875, dismissing the proceedings on his second appH-
cation for execution. The decree not being fully
satisfied, he again applied for its execution on the
11th September 1878 : — Held, that the applicat on
of the 11th September 1878 was barred both under
s. 22 of Act XIV of 1869 and Art. 166 of Sch. II of
Act IX of 1871, no proceedings having been taken
to enforce the summary decree within one year next
preceding the said application. Bhikhambhat v.
Fernandez . . I. L. R. 5 Bom. 672

See (contra) .Jai Shankar v. Tetley

I. L. R. 1 All. 586

LIMITATION- ACT (XV OP 1877)-<;o7;.

Schedule II — contd.
Art. 178— contd.

11. ActXlVoi}^^

s. 22— Registration Act {XX of 1866), s. J-
'' Decree" made upon registered obligation — 'w,
mary decision. A summary decision means a c
sion arrived at by a summary proceeding a I
" decree " made under s. 53 of Act XX of 17
was a summary decision. S. 20 of Act XI (
1859 was intended to apply to decisions, wh hi
called judgments, decrees or orders, madei
regular suit, and s. 22 of the same Act,vi
intended to apply to all other decisions. A tin
made in 1867 under s. 53 of Act XX of i%
held to be subject, as regards its executi t
the law of limitation provided in Act XI (
1859, s. 22. MiNA KoNWARi v. Juggat S ai

I. L. R. 10 Calc. 196 : 13 C. L. RJ8
L. R. 10 I. i'll

12. Applicalii
pass judgment in terms of an award- — Civil toe
dure Code, 1859, s. 327 ; 1877, s. 526. /' tl
request of the apphcants, the lower Court fii a
award on the 20th December 1866, })utnoud
ment was passed in terms of it. Several ajjcs
tions for execution of the award were bs(
quently made and granted. The last a 'lie:
tion was made in 1880, and was rejected i tl
ground that there was no decree to eCut
The order was confirmed by the High Cot
appeal. The applicants then applied 1
lower Court to pass judgment in terms
award. The Court rejected the anplica^ln i
barred under the Limitation Act, XV of 187[ Se
II, Art. 178. The applicants appealed : — hd, 1
Sargent, C.J., and Kemball, J., that, looiifji
the provisions of the Codes of Civil Proctiirei
1859 and 1877 with respect to the fiUng of (van
in Court and the proceedings thereon, it aieare
to be the duty of the Court, under both Ci -■ '
proceed to pass judgment according to thi

as soon as it was ordered to be filed without
for any apphcation that should be done,
such application was, as a matter of practice
and that being so, such an apphcation was o:
under the authority of Kylasa Goundan \
sami Ayyan, I. L. R. 4 Mad. 172, and
Janardan v. V ithojirav Putlajirav, I. L. B-
586, was not within the contemplation of t!i
ation Act. Held, further, that the saii
should be given to the language of s. 327 of
of 1859 and s. 526 of Act X of 1877. The e>
" may be enforced " in the concluding part
ought to be read as " shall be enforced " ;
it applies to the Court, although the enfcfeW"'
by execution of the decree must always, oj'ours
be permissive, as regards the plaintiff. I-''i[^®i',,'
Jagjivandas v. Dosibai . I. L. R. 7 Bp. "1

» l<
Ai
187

13. -

A ppli

certificate to collect debts of deceased persi
178 of Sch. II of the Limitation A
does not affect an application under AclXXV

( 745:5 )

DIGEST OF CASES.

( 7454 )

.IMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 178— contd.

f 1860 for a ccrtiKeate to collect debts due to the

state of a deceased person. Janaki v. Kesavalu

I. Ii. R. 8 Mad. 207

14.

Application for

rotate. The Limitation Act is not appli
able to an application for probate ; such an
pplication therefore is not ban-ed by Art. 178 of

(ch. II '.'f that Act. In th.^ matter of tftt: petition

if ISHAN Chunder Roy

I. L. E. 6 Gale. 707 : 8 C. L. R. 52

15.

Application for

■obale or letters or certificate of administration.
'it. 178 of Sch. II (,f Act XV of 1877 has reference
oly to appHcations under the Civil Procedure Code
l\ct X of 1877), and docs not apply to appli-
Htions for probate or letters of certificates of ad-
■linistration. Bai Manekbai v. Manekji Kavasji
I. Ii. R. 7 Bom. 213

16. Applications for

■obate or letters or certificates of administration.
pplications for probate or letters or certificates
administration do not fall within the provi-
. 'ons of Art. 178 of the Limitation Act. Kashi
jJUNDEA Deb v. Gopi Krishna Deb
I I. Ii. R. 19 Calc 48

il7. — Applications for

obate. The Limitation Act does not apply to
•plications for probate, and the appHcations
ferred to in Art. 178 of Sch. II of that Act are
,iplications under the Code of Civil Procedure.
nnaki v. Kesavalu, I. L. R. 8 Mad. 207 ; Bai
anekbai v. Manekji Kavisji, I. L. R. 7 Bom.
1 3, -and In the matter of the petition of Ishan
iiunder Roy, 1. L. R. 6 Calc. 707, followed.

(^•ANAMUTHU UPADESI V. VaNA KoILPILLAI NaDAN

I I. Ii. R. 17 Mad. 379

'*y' — Application for

[itficate of sale— Civil Procedure Code, 1S59, s.
\9. The provisions of the Limitation Act relating
I applications do not extend to an application
' a purchaser of land at a Court-sale under a
!creeto obtain a certificate. Kylasa Goundan
1 Ramasami Ayyan . I. Ii. R. 4 Mad. 172

||Q

I • ' Certificate, of sale,

n,hmtion for. Art. 178, Sch. II of the Limitation

V V of 1877), is not applicable to appHcations

'ificates of sale. The provisions of the Limita-

''■'' t (XV of 1877) do not apply to appHcations

'urt to do what it has no discretion to refu.se,

applications for the exercise of functions of a

rial character. Vithal Janardan v. Vitho-

I'cTi.AjiRAv . I. L. R. 6 Bom. 586

VIDAS JaGJIVAK V. PORJADA BeGAM

I. L. R. 8 Bom. 377

^■ 7'. , Certificate of salet

;|"/'c^t»o« for. Where an appHcation for a
jtifacate of sale was made five years and a half
" the ^confirmation of the sale -.-Held, that it

lilMITATION ACT fXV OF 1877)— contd.
Schedule 11— contd.

Art. 178— contd.

was barred by Art. 178 of Sch. II of Act XV of
1877. TuKARAM V. Satvaji Khandaji

I. L. R. 5 Bom. 206

"!• — — Application for

a certificate of sale — Accrual of cause of action.
The appHcant purchased certain land at a Court-
sale on the 17th February 1876. The sale was
confirmed on the 20th March of the same year.
The purchaser did not apply for a certificate of
sale until the 10th March 1880. Held, that the
appUcation was barred by the Limitation Act,
XV of 1877, Sch. II, Art. 178. Held, also, that the
purchaser's right to a certificate of sale accrued to
him under s. 256, 257 and 259 of the Civil Procedure
Code, Act VIII of 1859, on the 20th March 1876,
when the sale was confirmed. /?» re Kua.i.x
Patthanji . . I. Ii. R. 5 Bom. 202

Civil Proccdur

Code (Act XIV of J 882), s. 318— Purchaser at

Court-sale — Certificate of confirviation of sale

Application for possession of purchased property —
Date of accrual of riijlil li> 'ip/ili/ for possession. The
right of a purchaser tn ajiply for possession under .=!.
318 of the Civil Procedure Code (Act XIV of 1882)
accrues to him when the certificate " has been
granted," — that is to say, when it has been issued
to him, and the period of limitation for such an
appHcation is to be computed from that day.
Kashinath Trimb.4k Joshi v. Duming Zuram'
I. L. R. 17 Bom. 228

23. Application for

possession after sale in execution of decree — Period
from which limitation runs. The right to apply
for possession after a sale in execution of a decree
accrues on the date the certificate of sale is issued
not on that on wliich the sale was confirmed ;
the period of Hmitation therefore counts from
the former date. Basapa v. Marya

I, Ii. R. 3 Bom. 433

24. - Application for

possession by purchaser at a Court-sale — Ciiil
Procedure Code, Act XIV of 1882, s. 318. An
appHcation by a purchaser at a Court-.sale to be put
into possession is barred under Art. 178, Sch. II
of Limitation Act, XV of 1877, if made more than
three years after the grant of the certificate of
sale. Vithal Janardan v. V ithojirav Putlajirav,
I. L. R. 6 Bom. 586, distinguished. Hanm/VXTRav

PANDUR.4NG JOGLEKAR V. SrBAJI GiRMAJI

I. L. R. 8 Bom. 257

25.

Insolrent judgment-

debtor — Application by creditor to prove claim. In
July 1878 a person was declared an insolvent under
the provisions of Ch. XX of the Civil Procedure
Code. Only one creditor then proved his debt and
no schedule was framed. This creditor having
appHed for the sale of property belonging to the
insolvent, another creditor, in May 1883, applied
to prove his debt and to have his name inserted in

( 7455 )

DIGEST OF CASES.

( 7456 )

LIMITATION" ACT (XV OF 1811)— conld.

Schedule II — contd.
Art. 118— contd.

the schedule which the Court then ordered to be
framed : — Held, that the application was governed
by Art. 178 of the Limitation Act, 1877 ; and that,
the right to apply having accrued at the date of
the declaration of insolvency, the application
was beyond time. Parsadi Lal v. Chunni Lal

I. L. R. 6 All. 142

26. • Application to

amend decree — Civil Procedure Code (Act X of 1S77),
s. 206. An application to amend a decree, which is
found to be at variance with the judgment, in
accordance with the provisions of s. 20fi of the Civil
Procedure Code, is an application of the kind men-
tioned in Art. 178ofSch. II of Act XV of 1877,
and as such subject to the limitation of three years.
In the matter of the j.etition of Gaya Prasad v.
SiKRi Prasad . . . I. L. R. 4 All. 23

27.^ Application to

bring decree into conformity with judgment— Civil
Procedure Code, 1SS2, s. 200. Applications to the
Court under s. 20fi of the Code of Civil Procedure
are not governed by the Limitation Act. Jivraji
V. Pragji . . . I. li. R. 10 Mad. 51

28.

Decree, applica-

tion to correct errors in — Civil Procedure Code
{Act XIV of 1SS2), s. 206— Practice. An applica-
tion, under s. 206 of the Civil Procedure Code
(Act XIV of 1882), to correct'errors in a decree,
not being one within the purview of Art. 178,
Sch. II of the Limitation Act (XV of 1877), is
not governed by any limitation, and can be made
at any time such errors are discovered. Gai/a
Prasad v. Si/cri Prasad, I. L. R. 4 All. 2-3, dis-
sented from. Shivapa v. Shivapanch Lingapa

I. L. R. 11 Bom. 284

29.

Civil Procedure

Code, s. 206 — Amendment of decree. Art. 178
of Sch. II of the Limitation Act (XV of
1877) applies only to applications made to a
Court to exercise powers which, without being
moved by such application, it is not bound to
exercise, and not to applications made to a Court
to do acts which it has no discretion to refuse
to do. It does not govern an application under
s. 206 of the Civil Procedure Code for amend-
ment of a decree, so as to bring it into conformity
with the judgment, it being the bounden duty of a
Court of its own motion, to see that its decrees are in
accordance with the judgments, and to correct them
if necessary. Gaya Prasad v. Sikri Prasad, I. L. R.
4 All. 23, dissented from. In re Petition of Kishan
Singh, All. Weekly Notes (1S83) 262; Kylasa
Goundanv.RamasamiAyyar,I.L.R. 4 Mad. 172;
and Vithal Janardan v. Vithojirav Putlajirav, I. L.
R. 6 Bom. 586, referred to. Darbo v. Kesho Rai
I. L. R. 9 All. 364

30. Amendment of

decree— Civil Procedure Code, 18S2, s. 206 — Suit
for mesne profits while plaintiff is out of posses-

LIMITATION" ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 178 — contd.

sion. There is no Limitation for an applicati
under s. 206 of the Civil Procedure Code i
amend a decree, it being the duty of the Co\.
to amend it whenever it is found to be n
in conformity with the judgment. A institut.
a suit for declaration of title and for pissessit.
The decree, which was iiaally confirmed bv It
High Court gave her the declaration sought f,
but it contained no direction as to the possess! i
although the judgment stated that she was entit 1
to possession. A\<t son (having been substitu 1
in her place) applied to have the decree amend .
The lower Appellate Court held that the applical 'i
was barred by limitation. The High Court i
appeal upheld the lower Court's order not on '3
ground of limitation, but on the ground that e
application to amend the decree had been madta
the wrong Court. A's son then instituted a frh
suit against the same parties for declaration of ti;,
perpetual injunction, and for mesne profits : — El,
that the plaintiff was entitled to have the dece
amended under s. 206, Civil Procedure Code, d
that, though the plaintiff's claim to possession ts
barred, yet his right was not extinguished, ande,
having therefore a subsisting title, was erititi,
though out of possession, to maintain the suit scir
as it sought to recover mesne profits. Kalv.
Lattj . , . . I. L. R. 21 Cale. !i9

31. — Decree as orin-

ally framed incapable of execution — Amend',rU
of decree — Application for execution of ami-
ed decree. Where a decree as originally fraad
was found by the High Court to be incapablof
execution and was not finally amended by .at
Court, so as to become capable of execu'U,
until nearly twelve years after it was passe it
was held, that an application to execute ich
decree which was made within three years im
the date of the amendment of the decree 'as
within time, the rule of limitation appli'ble
being that prescribed by Art. 178 of Sch. II o^ct
of 1S77. Muhammad Suleman Khan v. Mu;^-
MAD Yar Khan . . I. L. R. 17 Al 39

32. Application for

ordir absolute for sale of mortgaged prope^ —

Transfer of Property Act {IV of 1S82), i\'^9.
Art. 178, Sch. II of the Limitation Act, 'll.
does not apply to an application for an iw
absolute for the sale of mcjrtgaged propertv ''iter
s. 89 of the Transfer of Property Act, 1882 5ai
Manekbai v. 3Ianekji Kavasji, I. L. R- 7 Bom'lS,
approved. Ranbir Singh v. Drigpal

I.L.R.16A;23

{Contra) Chunni Lal

Harnam Dass

I. L. R. 20 A11302

33.

Transfer of''^

perty Act {IV of 1882), s. 89—Applicatii for
an order absolute for sale of mortgaged prC^y-
An application under s. 89 of the Trani'^of
Property Act (IV of 1882) to have a monge-

( 7457 )

DIGEST OF CASES.

( 7-158 )

LIMITATION ACT (XV OF 1811)— contd. \ lilMITATION ACT (XV OF l811)—contd.
Schedule II— contd. Schedule II — contd.

Art. 118— contd.

decree for sale made absolute is not governed
ay Art. 178, Sch. II of the Limitation Act, 1877.
That article is limited to applications under
lie Code of Civil Procedure. Bai Manekbai v.
Manekji Kavasji, I. L. R. 7 Bom. 213, and
'lanbir Singh v. Driypal, 1. L. E. 16 All 23,
pproved. In dealing, however, with such an ap-
)lication, the Court may be guided by consideration
s to w hether any delay on the part of the mortgagee
las not been unreasonable, so as to bring it within
he i-ules applied in such cases by Courts of equity.
'o long as the final order for sale is not passed, the
; it may properly be regarded as pending. Tiluck
INGH V. Paesotein Peoshad

I. L. R. 22 Caic. 924

Bahhnstri,
Raghukath

84.

Application for

' decree U7ider s. 96 — Trnni>jer of Property Act
i F o/ 1>>!<2). Held, that the limitation govern-
gan application for a decree under s. 90 of the
'ransfer of Property Act is that prescribed by Art.
■ f the second Schedule to the Limitation Act,
Ram Saetjii' v. Ghauea>-i

I. L. R. 21 AIL 453

(35. — Application for

[sale in execution of decree — Continuous proceed-

\]S. Upon an application made on the 28th

igust 1891, for execution of a mortgage decree,

,3 mortgaged property was sold, and the judg-

,mt-debtors purchased it benami at a low price.

' ereupon the decree-holders made an application,

the 12th November 1891, asking the Court

t aside the benami purchase and resell the

; ty. The first Court found that the purchase

:.ot benami, and confirmed the sale on the

April 1892, but the lower Appellate Court

'0 a contrary conclusion, and set aside

. ->uie on the 22nd July 1892. The High Court,

ii second appeal, accepted the finding of the

/^pellate Court as regards the purchase being

tami, but upheld the sale with the remark

^t the said property and any other property

< he debtors might be sold in satisfaction of the

l(rtgage-debt. This judgment was passed on the

* August 1893. On an application for exe-

c ion made on the 3rd December 1894, an objec

■IS raised on the ground of limitation : — Held,

•lie application of the 3rd December 1894

be regarded as a continuation of the applica-

t the 12th November 1891 for resale of the

'y ; and as the decree-holders were precluded

first Court's finding of the 12th April 1892,

-Idng for sale until it was reversed by the lo^\ er

late Court on the 22nd July 1892, and finally

' • High Court on the 4th August 1893, the

! i> ition was in time under Art, 178, Sch. II, Act

•^ *i 1877. Fyaroo Tuhovildarenee v. Nazir

«,«'«, 23 W. E. 183 ; Chundra Frodhan v. Gopi

^an iihdha, I. L. E. U Culc. 3S5 ; Paras Earn v.

W';ner, /. L. R. I All. 3i5; Kalyunbhui Dipchand

'iMsham Lai Jadunathji, I. L. E. 6 Bom. 29 ;

VOL. III.

and Chintamon Dmnodar Agashi
I. L. E. 16 Bom. 294, referred to.
Sahay Singh v. Lalji Singh

I. Ii. R. 23 Calc. 397

36. Eeneual of

application for execution after intermediite proceed-
ings. Certain holders of a decree for sale under
s. 88 of the Transfer of Property Act applied
for execution of their decree on the 6th of
January 1887, and the application was granted.
A third party, however, appeared and tiled an
objection under s. 278 of the Code of Civil
Procedure, which was allowed. Thereupm the
decree-holder.s brought a suit under s. 283 of the
Code. They obtained a decree on the 5th of Jime
1888 : but the intervener appealed, and the final de-
cree in appeal ^ as not passed until the 28th of May
1892. On the 27th April 1892, the decree-holders
again appHed for execution of the decree : — Held,
that execution was time-barred under Art. 178 of
the second Schedule to Act XV of 1877. Deseaj
Singh v. Karam Khan . I. L. R. 19 AIL 71

37.

Application to

set aside a sale by a person interested in ' the sale
—Bengal Tenancy Act (VIII of ISSo), s. 173—
Limitation Act, Art, 166. An application to set
aside a sale under 3. 173 of the Bengal Tenancy Act
is governed by Art. 178, Sch. II of the Limitation
Act, and should be made within three years from
the date when the right to apply accrues. Chand
MoNEE Dasya v. Santo Monee Dasya

I. L. R. 24 Calc. 707

1 C. W. N. 534

38. — — - — — ■ Application to

set aside sale on ground of fraud. An application to
set aside a sale on the ground of fraud is governed
by Art, 178 of the Limitation Act. Nemai Chand
Kanji v. Deno Nath Kanji, 2 C. W. N. 691,
referred to. Bhubon Mohan Pal v. Nunda Lal De y

I. L. R. 26 Caic. 324

See MoTi Lal Chakeabatty v. Eusick Chandea
Baeeaji . . I. L. R. 26 Calc. 326 note
which places such an application under Art. 95 of
the Limitation Act.

39. Where a judg-
ment-debtor applies to have an execution-sale set
aside and alleges circumstances which, if found in
his favour, would amount to fraud on the part of
the decree- holder or auction-purchaser, the period
of limitation is that provided in Art. 178, and not
that in Art. 166, of Sch. II of the Limitation Act.
Nemai Chvnd Kanji v. Deno Nath Kanji

2 C. W. W. 691

LucHMiPAT V. Mandil Koer 3 C. "W. W. 333

40. • Limitation Act,

1877, s. S — Mesne profits, decree for — Execution of
decree — Application for assessment of mesne profits —
Joint decree-holders — Minor, right of, to execute whole

11 E

{ 7459 )

DIGEST OF CASES.

( 7460 )

liltBIITATION ACT (XV OF 1811)— cmtd.

Schedule II — contd.
Art. 118— contd.

decree when remedy o/ major joint-decree-holder is
barred. In execution of a decree for possession of
certain lands and for mesne profits, dated the 15th
August 1878, possession having been obtained in
August 1880, two decree-holders, one of whom was
a minor, apphed on the 4th April 1882 for ascsrtain-
ment of the amount of such mesne profits. Upon
that application the amin was directed to ascertain
the amount due, but after repeated reminders had
been sent him, and no report being submitted, the
execution-case was struck oS the file on the 9th
October 1882. The minor judgment-creJitor having
attained his majority on the 17th April 1885, an ap-
plication was made by both decree-holders for exe-
cution of the decree by ascertainment of the
amount of me^ne profits and for the recovery of
the amount when so ascertained. The judgment-
debtors pleaded hmitation : — Held, that the appli-
cation was not an application for execution of the
decree. The decree was divisible into two parts,
and the present apphcation must be treated as for
the purpose of obtaining a final decree regarding
the mesne profits, the previous decree having
been in that respect merely interlocutory. Barada
Siindari Dahia v. Fergusson, 11 C. L. R. 17, and
Dildar Hosain v. Miijeedunnissa, I. L. R. 4 Cede.
529, followed. Hem Chunder Chowdhury v. Brojo
Soondury Dehee, I. L. R. S Cole. S9, dissented
from. V^eZ(Z, also, that the provisions of Art. 178
of Sch. II of the Limitation Act apply to an appli-
cation by a decree-holder to make a decree com-
plete (Barada Soonduri Dahia v.. Fergusson, 11
C. L. R. 17, upon this point dissented from) ; and
further that s. 8 of that Act had no application to
the case, and that therefore, so far as the apphca-
tion of the major decree-holder was concerned, his
remedy was barred as his application should have
been made within at least three years from the date
of the delivery of possession of the lands decreed.
Held, further, that under s. 7 of the Limitation Act,
the remedy of the minor decree-holder was not
barred as the other decree-holder could not give a
valid discharge without his concurrence( J/tamwcZcZe?*
v. Grish Chunder Chamunt, I. L. R. 4 Cole. 350,
distinguished), and that under s. 231 of the Code
of Civil Procedure, he was entitled to execute the
whole decree, as, though the remedy of the major
decree-holder was barred, his right was not
extinguished. Anando Kishore Dass Bakshi v
Anando Kishoee Bose . I. L. R. 14 Cale. 50

41.

Decree for pos-

session and mesne profits from date to be fixed in
execution — Civil Procedure Code, 1SS2, s. 211.
Where a decree directed that plaintiffs should
get mesne profits from a certain date till deli-
very of possession, the amount to be fixed in
execution : — Held, that the decree was neces-
sarily subject to the limitation laid down in s.
21 1 of the Civil Procedure Code (Act XIV of 1882),
and that mesne profits for miore than three years

lilMITATION ACT {XV OF 1811)— contd

Schedule II — contd.
Art. 118— contd.

from the date of the decree should not be award
even though possession was not deUvered, duri'
that period. Narayan Govind Manik v. Sc)
Sadashiv . . I. L. R. 24 Bom. 3i

42. Plaint in a i'i

treated as an application under s. 244, Civil Pre-
dure Code, 1SS2. Where a suit is filed under cl.
curastances in which the proper remedy is an ;|.
plication under s. 244 of the Code of Civil Pj.
cedure, and the Court in the exercise of its d-
cretion treats the plaint in the suit as an aj '-
cation under s. 244, the rule of limitation a}. -
cable mil be that appropriate to applicatija
under s. 244, namely, that prescribed by Art. S
of the second Schedule to the Limitation A,
1877. Jhamman Lai v. Kewal Ram, AU. We^
Notes {1S99) 219, and Biru Mahata v. Shyda
Chirn Khawas, I. L. R. 22 Calc. 483, referred^.
Lalman Das v. Jagan Nath Singh j

I. L. R. 22 All. ;»

43. Decree for ■»-

session of immoveable property, execution hiig
contingent on non-paymont of annuity. Wle
a decree was for possession of immovej|e
property, but its ex3cution was contingent In
default Iseing made by the judgment-debtoiin
the payment year by year of a certain annily
to the decree-holder : — Held, that the dec^-
holder was not obliged to execute such decree
and for all upon the occurrence of the first d' :
but might execute it on occasion of any
sequent default ; also that the hmitation appliclc
to the execution of such decree was that proved
for by Art. 178 of Sch. II of the Limitation it,
1877 Tliakar Das v. Shadi Lai, I. L. R. S U.
56, referred to. Muhammad Islam v. Mhhamvd
Ahsan . . . I. L. R. 16 All. 37

44. — Applicatiorior

execution of decree. An application for execi n
of a decree made on the 29th May 1874, li '
been rejected, an appeal was preferred t-
High Court which reversed the order Oi
lower Court. The property of the judi.!
debtor had been attached previously
the application for execution, and part o -
was afterwards sold on the 6th September ko-
A subsequent application to have a fuaer
portion of the attached property sold was rcj
on the 17th September 1875, on the ground th.'
only part of the property, but the whole of it i
have been sold on the 6th September. There ! "g
nothing to show that the attachment had everl'en
withdrawn on the 31st December 1877, the ;!?•
ment-creditor applied that the property Ojiiw
debtor might be sold in execution of the dcf« :
Held, that nothing had been done by the judgrct-
creditor since his application for executiq oi
the 29th May 1874, " to enforce the decree or ?pt
it in force " "(as defined by the FuU Bench dec'on

( 7461 )

DIGEST OF CASES.

( 7462 )

[.IMITATION ACT (XV OF 1817)— cmid.
Schedule II — contd.

Art. 176— contd.

n Chunder Coomcr Roy v. Bhogobutty Prosunno
Hoy, 1 C. L. R. 23 : I. L. B. 3 Calc. 235) ; that
he right to apply to have the property sold
(iccrued upon the attachment, and accordingly that
he present application, inasmuch as it had been
nade more than three years from the date of the
.ttachment, was barred bv limitation under Art.
1 78, Sch. II of Act XV of 1877. Joobraj Singh v.
iJuHooEiA Alumbasee Koeb . 7 C. L. K. 424

45. Application for

evival of execution stayed hy injunction. A
: cree was made against B, K, and Z. On the
1 3th May 1879, apphcation was made for
xecution of the decree against B and K.
,u August 1879 Z, who had preferred an ap-
sieal in the suit applied on that ground for the
Itay of execution, and on the 22nd August 1879
'he Court on the same ground ordered execu-
ion to be stayed. On the 16th December 1879, ^'s
ppeal was dismissed. On the 24th June 1882 an
pplication for execution of the decree against B
nd K was made : Held, that such application
light be regarded as one for revival of the pro-
eedings in execution which had been stayed by
liunction, to which Art. 178, Sch. II of the
.imitation Act, 1877, was applicable and such
'pplication was therefore within time. The
finciple of decision in i2r/gr/( ((taws Gir \. Sheosaran
;i>, /. L. R. 5 All. 2-13, and Kalyanhhai Dip-
\iand v. Gkanarhamlal Jadunathji, 1. L. R. 5
I'om. 29 followed. BuTi Begam w. NihalChakd
I. L. R. 5 All. 459

46. Application for

■MuXion of decree, hy revival of proceedings after
\movalof injunction. On the 28th May 1878, ap-
llication was made for execution of a decree,
li pursuance of which certain property was
i;tached and proclaimed, for sale. On the day
jsed for the sale the Court issued an injunc-
on to stay the same until a suit which certain
i^rsons who claimed the property had instituted,
jid been decided. On the 14th September 1882,
|ie suit having been finally decided on the 21th
jiDuary 1881, the decree-holder applied for the
jiecution. Held that the application might pro-
hrly be considered to be for revival of the former
oceedings after removal of the injunction, to
liich Art. 178 of the Limitation Act, 1877, rather
an Art. 179, was applicable, and was within time
pm the date of accrual of the right to apply on the
|ia] decision of the suit. Basant Lal v. Batul
1 Bi . . . . I. L. R. 6 All. 23

47. Decree — Execu-

'n — Attachment set aside — Time occupied in suing
dtclare property liable to attachment. An applica-
>n for execution of a decree having been made in
80, certain land was attached as being the pro-
rty of the judgment -debt or (deceased) his child-
1 th-;reupou claimed the land and the attachment

LIMITATION ACT (XV OF 1877)- conti.

Schedule ll-~contd.
■ Art. 178— contd.

was raised. Upon this the judgment-creditor sued
to establish his right to sell the land in execution
and obtained a decree in 1882, which was con-
firmed on appeal in 1883. In 1885 the judgment-
creditor again apphed for attachment and sale of
the same land : — Held, that the apphcation could
not be considered as one for the revival of former
proceedings, that Art. 178 was not apphcable to it,
and that the application was barred bv limitation.
Basant Lal v. Batul Bibi, I. L. R. 6 AH. 23, dis-
tinguished. Narayana v. PAm Brah:\iani

I . Ii. E. 10 Mad. 22

48.

Application
lS77—Court-

imder s. 411, Civil Procedure Code,
fees payable to Government under decree. Govern-
ment is not entitled to any exemption from the
provisions of the Limitation Act, 1 877, relating to
applications: -^eZrZ, therefore, that an application
by Government under s. 411 of the Code of Ci'vil
Procedure to recover the amount of Court-fees from
a party ordered by the decree to pay the same was
subject to the provisions of Art. 178 of the Li-
mitation Act, 1877. Appaya v. Collector op
Vizagapatam . . I. L. R. 4 IJ/Iad. 155

49. . '. Application for

refund of excess payment — Accrual of right to apply.
The judgment-debtors against Avhom a decree had
been executed applied for a refund of money which
they alleged had been recovered in execution by the
decree -holders in excess of what was actually due
under the decree. L'pon this application an account
was taken by order of the Court : — Held, that the
limitation applicable to the case was that provided
by Art. 178, Sch. II of the Limitation Act, and
that the right to apply for the refund of the excess
amount paid in execution accrued at the time
when the account was ta\en and stated on the
application of the judgment-debtor? in the course
of the proceedings in execution. Mula Raj v. Debi
Dm.AL . . . . I. L. K. 7Ail. 371

50. _^ ^ A pplication under

Civil Procedure Code, s. 5S3 — Application for refund
of moneys levied under decree reversed on. appeal.
Semble : An apphcation for refund of moneys levied
in execution of a decree subsequently reversed on
appeal is not governed by Art. 179, but by Art. 178,
of Sch. IT of the Limitation Act. Kurttpam Zamix-
DAR V. Sadasiva . . I. Ii. R. 10 Mad. 66

Harish Chunder Shaha r. Chundra :Mohax
Dass . . . I. L. R. 28 Calc. 109

(Contra) N.asdram v. Sitaram

^ ' I. Ii. R. 8 AIL 545

51_ Civil Procedure

Code, s. 315 — Sale in execution set aside— Applica-
tion by purchaser for refund of purchase-money

Accrual of right to apply — Delay — Costs. A suit by

a judgment-debtor whose sir land had been sold in

11 E 2

( 7463 )

DIGEST OF CASES.

( 7464 )

LIMITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
. Art. 118— contd.

execution of deciee to have the sale declared void
and illegal, on the ground that the sir was incapable
of sale, was decreed on appeal bv the High Court
on the 13th June 1884. On the llth June 1887, the
purchaser at the sale applied, under s. 315 of the
Civil Procedure Code, for a refund of the purchase-
money. Held, that the limitation applicable was
that provided by Art. 178 of Sch. II of the Limit-
ation Act (XV of 1877) ; that the right to apply
accrued on the passing of the High Court's decree,
and the application was therefore not barred by
limitation ; but that, looking to the great delay
there had been on the part of the applicant, he
should not be allowed anv costs. Girdhari
V. SiTAL Prasad . . t. L. R. 11 All. 372

52. Application to

revive a case and re.store it to the board. After a
decree had been made in a suit, the case was in 1875
struck out of the board for want of prosecution. No
steps were taken to have it restored. In 1879 both
the plaintiff and defendant died. In the same year
the heirs of the plaintiff instituted a suit against the
administrator of the defendant for the purpose of
having the decree in the original suit carried out.
Thit suit was dismissed by the Court of first instance
under s. 13 of the Code of Civil Procedure, but
the Appellate Court, holding that the original suit
was subsisting and might be reconstituted, directed
that the plaintiffs should be allowed to amend their
plaint by putting it into the form of a petition under
s. 372 of the Code. On a petition by the plaintiffs
praying that the original suit might be revived and
restored to the board : — Held, that the application
was not barred under Art. 178 of Sch. II to the
Limitation Act of 1877. Even if Art. 178 was
applicable, the application M-ould not be barred,
liiuitation running fromihe time -vvhen the suit was
allowed to be reconstituted. The Legislature did
not intend to include in the Limitation Act every
application to a Court with reference to its own list
of causes, such as apphcations to transfer a case
from one board to another, to transfer a case to the
bottom of the board, change of attorneys, and
so forth. GoviND Chundee Ghoswami V. Eukgun-
MOKEY . I. L. R. 6 Gale. 60 : 6 C. L. R. 345

53. and Arts. 171 and 171A—

Application to revive suit — Eight to apphj-^Pending
suit. The right to apply in a pending suit, — i.e., a
suit in which no final order has been made, — is a
right which accrues from day to day, and therefore
the periods of limitation provided in Arts. 171,
171A, and 178 do not apply in an application to
revive such a suit. Kedarxath Dutt v. Hara
Chajtd Dutt . . . I. L. R. 8 Calc. 420

Ra.mxath Bhuttachaejee v. U:\ta Charan
Sircae . . . . 3 C. W. W. 756

.^- — Revival, appli-
cation tor— Civil Procedure Code, 1877, s. 371. An
application by the legal representative of the

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. Y18— contd.

plaintiff to revive a ^uit which has abated on tt
death of the plaintiff may be granted if mac
within three years from the time when the rig!
to apply accrued, if the applicant can show tL'
he was prevented from sufficient cause from coi
tinning the suit. Bhoyrub Doss Johurry
DoMAN Thakooe

I. L. R. 5 Calc. 139 : 4 C. L. R. 37

55. Death of plair

i§-respondent — No application for subititution-
Application by defendant-appellant for hearing
appeal. Held, by the Full Bench, that, inasmi:
as Art. 178, and not Art. 171B, of the secor
Schedule of the Limitation Act applied to the ca:
of a deceased respondent, whether plaintiff
defendant in the suit, an application by a di
fendant-appellant to have his appeal heard in i}
absence of any representative of the deceas;
plaintiff-respondent could not be allowed un-
the period prescribed by Art. 178 had expir
without the legal representatives of the deceasi
applying to be brought on the record in )\-
place. Ram Sarup v. Ram Sahai |

L L. R. 10 All.'2''

56. . Injunction r

training execution — Revival of proceedings ■
representative of decree-holder — Substitution of wa^
of representative on the record. J obtained^
decree against the firm of M R in 1863, and on 1^
16th September 1869 applied for execution by •
tachmeut and sale of certain immoveable proper .
The property was attached, but the sale was dela}l
by various causes untU the 5th February 1876, wn
it was ordered to take place on the 18th Ma'V
1877. Meanwhile P brought a suit against ./,' '
on 14th March 1876 he obtained an injuii
restraining J from proceeding, pendente lite, tv
sale of the attached property. J appealed agai -
the order granting the injunction, which, howe^t,
was confirmed on the 26th June 1878. Meanwbs,
on the 22nd January 1877, J had died, and thip*
upon the proceedings in the matter of the injunctIL
as well as in P's suit were earned on by G' asp
representative. On the 19th January 1880, P's |t
was dismissed, and with it the injunction of the \%
March 1876 fell to the ground. On the 5th Fe' •
ary 1880, G appUed to have his name substit
for that of J in the application for execution fl
16th September 1869, and to proceed \nth the ca ,
and on the 19th February 1880 this application ^
granted, and an order made that execution sh(M
be proceeded with on J"s application of Septenpr
1869. K, as representing the firm of m^*
appealed : — Held, that G was entitled to executb.
Where an application for execution has been n
and granted, but the right to execute has 1
subsequently suspended by an injunction or o
obstacle, the decree-holder may apply for a revJ.i
of the proceedings within three years from the (te
on which the right to apply accrues, viz., the itf-
on which the injunction or other obstaci

( 7465 )

DIGEST OF CASES.

( 7466 )

LIMITATION ACT (XV OF 1877)— cawW.
Schedule 11— contd.

Art. 178— contd.

emoved (Art. 178 of Sch. II of Act XV of 1877).
Fhere a decree-holder, whose right of execution
as been thus temporarily suspended, dies, his repre-
jntative has the same rights as he had himself to
pply for and obtain a revival of the proceedings,
t was contended in the above case that G had
0 right to apply for a revival of proceedings,
nlcss his name was substituted on the record as J's
•presentative ; that as his right to apply for such
ibstitution accrued immediately upon J's death,
hich had happened more than three years pre-
usly, so much of his application of 3rd February
iiSO as related to the substitution of names was
irred by Art. 178 of Sch. II of Act XV of 1877 ;
id that consequently the other portion of hL^
Dplication which related to execution was neces-
■ rily inadmissible inasmuch as it depended upon
le substitution of G's name, which it was too late
effect. Held, that, under the circumstances of the
se, (t's right to apply for the entry of bis name in
e place of that of J could not be regarded as
i.ving accrued immediately upon J's death. At
. at time J's application for execution, being sus-
nded by the injunction, was to all intents and
irposes non-existent. It could not be revived
itil the injunction was removed. During the
ntmuance of the injunction, an application by 0
"the entry of his name could not have been enter-
ined by the Court, inasmuch as J's application
r execution was in abeyance and would never be
,rived at all in the event of P succeeding in his
j.t, and even if P failed, it might also happen that
:i application would not be revived in favour of G,
;■ even if he were J's representative at the date
, his application, he might be dead before the
|Cision of P's suit. Kalyanbhai Dipchand v.
lANASHAMLAL . I. L. R. 5 Bom. 29

r^- " Death of sole de-

^dant — Legal representative — Civil Procedure

\ii[Act X of 1\77), SS.36S, 372. In a suit for

|) recovery of land against a sole defendant, the

,ter died" before the hearing. Sixty-three days after

p death of the defendant, the plaintiff apphed to

p Court to enter on the record the legal represen-

Jive of the deceased defendant. On the 22nd of

vember 1880 tlie Court rejected the appli-

ion under the provisions of Act XV of 1877, Sch.

Art. 1716, and ordered the suit to abate. On the

ae day the plaintiff applied to the Court to set

"|le the order directing the suit to abate, but

J|3 application was also rejected on the 20th of

'j|tember 1881. On appeal to the High Court :—

jja.^thatthe application which was rejected on

•i -2nd of November 1880 was an application

;i!^'".f 372, and not under s. 368, of the Code

J-J.'^ "ocedure : and that the applicant was

rtled to make the application within three years

ajUowedbyAct XV of 1877, Sch. II, Art. 178.

^ool Chunder Gossamee v. Administrator-General

o.tiengal, 1. l. R. 5 Calc. 726, referred to.

LIMITATION ACT (XV OF 1877)— confci.

Schedule ll—contl.

Art. 118— contd.

Benode Mohini Chowdhrain v. Sharat Chunder
Dey Chowdhry

I. L. R. 8 Calc. 837 : 10 C. L. R. 449
12 C. L. R. 421

58.

Application for

fresh summons — Filing of plaint. A plaint was filed
on 12th March 1875,- and the summons to the de-
fendant to appear and answer issued on 13th March
1875. With the exception of an application for
substituted service made on 20th March 1875, and
which was refused, no further steps were taken in
the matiter until 21st March 1878, when the plaint-
iff applied for a fresh summons to issue, the time
for the return of the first summons having long
since expired:— Z^eZi, that the mere filing of a plaint,
or the naked fact that a plaint is on the file, will
not of itself prevent the operation of the law of
limitation, and that, as no steps had been taken to
renew the summons for three years, and
as no sufficient case to excuse the delay had
been made out, the application was out of time, and
should be refused. Ramkissen Doss v. Ltxckey-
NARAiN . . . I. L. R. 3 Cajc. 312

59.

Application for

summons after period of limitation had expired-
Rules of High Court (4th December 1S75), 1, 2, 5.
In a suit upon'a promissory note, dated the 4th
June 1873, payable three months after date, the
plaint was filed on the 22nd November 1^73, but
no summons to appear was issued until the 13th
September 1878, when a Judge's order for the issue
of a summons was obtained ex parte. Held, that
the suit was not barred by limitation. Gerendeb

COOMAR DUTT V. JUGGADUMBA DaBEE

I. li. R. 5 Calc. 126
60. Per Curiam

(Kernan, J., dissenting) : An application by an ap-
pellant to make the representative of a deceased
respondent party to the appeal does not fall
under Art. 171B, but under Art. 178, of Sch. II of
the Limitation Act, 1871. Lakshmiij. Sri Devi
I. li. R. 9 Mad. 1

61. Sale in execution

of decree — Interest of purchaser — Second sale of
same property in execution of subsequent decree —
Interest of purchaser at such subsequent sale subject

to interest of purchaser under prior sale — Registered
certificate of second sale — Act VIII of 1S59 —
Civil Procedure Code (XIV of 1SS2), s. 294—
Purchase by decree-holder at execution-sale — Right
to set aside such purchase. In 1884 the plaintiff
brought the present suit against the defendant to
recover possession of a certain house \\ hich he had
purchased at a sale held on the loth March 1880,
in execution of a money-decree obtained against one
C. He obtained a certificate of sale on the 3rd
January 1880, which was registered on the 13th of
the same month. The defendant had previously
purchased the same property at a sale held on the

( 7467 )

DIGEST OF CASES.

( 7468 )

LIMITATION ACT (XV OF 1877)— confd.
Schedule II — contd.

— Art. 118— contd.

22ncl November 1875, in execution of a decree
obtained by him as mortgagee against the said C.
The defendant had obtained a certificate of sale and
was put into possession, but had not then registered
the certificate. He subsequently obtained another
certificate, which was registered in June 1882.
In a suit by the plaintiff for possession it was
contended that under s. 294 of the Civil Procedure
Code (Act XIV of 1882) the defendant took nothing
by his purchase as he was the holder of the decree
in execution of which the property was sold -Held,
that this objection could not now be made, as the
right of the judgment-debtor C and of the plaintifi
as purchaser of his rights, to have the defendant's
purchase set aside on this ground, had been barred
by hmitation long before this suit was brought.
The purchase by the defendant was not void ab
initio, but only voidable !' on the application of the
judgment-debtor or other person interested in the
sale". Javarbhai v. Haribai I. L. E. 5 Bom. 57-5.
Further, such an apphcation was a matter in exe-
cution falling under s. 244 of the Civil Procedure
Code, and therefore, even if not barred before the
passing of the Limitation Act (XV of 1877), would
be barred by Art. 178 of that Act not later than
1st October 1880. Chintamanrav Nattj v.
ViTHABAi . . . I. L. E. 11 Bom. 588

62. — Execution of decree

— Decree payable hy instahnentf. — Instalment default
in payment of. When a deciee cr crder makes a sum
of money payable by instalments on certain dates,
and provides that, in default of payment of any
instalment, the whole of the money shall become
due and payable and be recoverable in execution
by Art. 178, Sch. II of the Limitation Act, limit-
ation begins to run from the date c.f the first
default, unless the right to enforce payment in
default has been waived by subsequent payment
of the overdue instalment on the one hand and
receipt on the other. R obtained a decree against
D C and K G for a sum of money on 21st June
1880. On 25th May 1882 an order was made in
terms of the petition of both jjarties, providing
that the amount of the decree should be paid by
five instalments, the first instalment being due in
July 1882, and that in default of payment of any
instalment the whole amount should be due and
recoverable in execution. Default was made in
payment of the first instalment, ncr was there any
subsequent payment of that or any other instal-
ment. On 30th July 1886 R appHed for execu-
tion of the four last instalments, alleging that the
first had been paid. Held, that the application
was barred by Hmitation under Art. 178, Sch. II,
Limitation Act, 1877. Hurronath Roy v. MaJier-
oollah, B. L. R. Sup. Vol. 61S : 7 W. R. 21;
Dalsoolc Ruttan CJiand v. Chugan Narrun, I. L. R.
2 Bom. .356 ; Shib Dat v. Kallca Per sad, I. L. R.
2 All. 413 ; Cheni Bus Shaha v. Kadum Mundul,
I. L. R. 5 Calc. 97 ; Asmutullah Dalai v. Kali

LIMITATION ACT (XV OP 1817)— contd
Schedule II — contd.

Art. 118— contd.

Churn Mitter, I. L. R. 7 Calc. 5P> ; Nil Madh
Chuckerbutty v. Ram Sodoy Ghose, I. L. R.
Calc. S57 ; Ram Kulpo Bhattacharji v. Ro
Chunder Shome, I. L. R. 14 Calc. 352 ; and Chunc
Komal Das v. Bisassurree Dassia, 13 C. L. R. 2-3
referred to. MoN Mohuk Roy v. Durga Chiji
GooEE . . . I. L. B. 15 Calc. 5(

63.

Sanction for fro-

cution — Application for such sanction — Critnii'
Procedure Code, s. 195. Rules of hmitation
foreign to the administration of criminal jiu*
and it is only by express statutory provision t
any rule of limitation could be made appUcablciV
criminal cases. Art. 178, Sch. II, Limitation jb
(XV of 1877), must be construed with reference*
the wording of the other articles, and can relate o:|?
to apiilications ejusdem generis. A suit was in[-
tuted for possession of certain land on which stooa
factory. In proof of the claim, the plaintiffs fil
in Court a sarkhat or lease which was pronoun 1
by the Munsif to be a forgery. Plaintiffs appeal
up to the High Court, where, on the 24th June IS),
the Munsif's decree was affirmed. Defelldas
then applied to the Munsif for sanction to prosece
the plaintiffs for the offence of using a ford
document knowing the same to be forged, '.e
Munsif refused to sanction the prosecution pratd
for ; but on application to the Sessions Judge ffh
sanction was granted. On apphcation to revise*e
Sessions Judge's order granting sanction, it SS
contended that, after the lapse of nearly three ytrs,
sanction to prosecute should not have been granjd:
Held, that there is no fixed period of hmitatioror
making apphcation for sanction under s. 195 oi^e
Criminal Procedure Code. Queex-Empres.':1'.
Ajudhia Singh . . I. L. B. 10 All. W

64. Applicatioto

rescind leave to sue — Decree — Order. The grantiij of
leave to sue is neither a decree nor an order, andhe
period of limitation for an application to resci;
is that provided by Art. 178 of the Limitatioi
(XV of 1877), viz., three years. Kessowaji I'
dar Jairam v. Luckjiidas Ladha

I. L. B. 13Bom.f)4

65. ^— Execution o'de-

cree — Execution suspended by action of the Cc'f—
Limitation. Apphcation for execution of a dire«
for sale on a mortgage, passed on the 30th of 5f-"cn
1893, was made in March 189G and the prorty
mortgaged was advertised for sale on the Ptn
of May 1897. A suit was, however, filed bf.he
minor son of the judgment-debtor, in consequeipof
which the sale was, on the 17th of May 1897, sVed
" pending the decision of the suit." A decrc'
given in favour of the son on the 2nd of Augu>'
but this was reversed in appeal on the 9th of 1
ary 1898, and the son's suit was dismissed, i;''^
there was a further appeal to the High Court, -iicli.
on the 29th of June 1900 set aside the decree i tne
lower Appellate Court and remanded the recoi tor

( 7469 )

DIGEST or CASES.

( 7470 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 178~contd.

trial on the merits. Finally, the decree of the 2nd
of August 1897 was reversed and the son's suit
dismissed on the 29th of March 1901. On the 11th
of May 1901 the decree-holder presented an apphca-
tion praying the Court to take up and proceed with
an appUcation, which had been stayed by the order
of the 17th of May IS91:— Held, that time began to
run against the decree-holder from the 9th of Febru-
ary 1898, but, inasmuch as by the action of the
Court execution of the decree had been from time
to time suspended, the only periods, which could
'ie counted against the decree-holder, were from
.ne 9th of February 1898 to the 29th of June 1900,
and again from the 29th of March 1901 to the 11th
of May 1901. These periods together not amount-
ing to three years the decree-holder's apphcation
of the nth of May 1901 was within time. Beni
Prasad r. Sarju Prasad (1904)

I. L. R. 26 All. 140

— Obstrvction to

'■xtcidion — Retnoval by decision in favour of decree
holder — Decree-holder's right to move the Court —
Application to be regarded as a continuation of pre-
vious application. A mortgage decree was obtained
against the counter-petitioner on 28th February
1894. On IGth May 1895, the decree-holder
assigned the decree to petitioner, who applied for
execution on 6th December 1897. That applica-
tion was struck off, and so was one which follo'oed
lit. On loth June 1898, petitioner again applied for
(execution, but counter-petitioner contended that
ihe assignment was for his benefit and that, in conse-
liuence, petitioner was not entitled to execute the
liecree. The District Munsif held an enquiry under
,3. 232 of the Civil Procedure Code and dismissed the
jipplication, being of opinion that counter-petition-
ija contention was true. Petitioner thereupon
Jorought a suit to estabhsh her claim that the assign-
ment was for her o\\n benefit. On 20th February
,1901, the Appellate Court declared that petitioner
oad obtained a valid assignment of the decree and
Tflif. ^°^^^^<^d to execute it. On 24thNovember
1W2, petitioner filed the present execution petition.
\?h ^\^^^^^^^^ ' f limitation being raised -.—Held,
that the petitioner's right to execute the decree
]l^j*^ °ot barred by limitation on 24th November
ilW2. The application should be treated not
19 an application for execution, but as an appli-
catwm to revive or continue an application for
iJXecution that had been wrongly dismissed as a
Pompetent Court has declared. Article 178 was,
herefore, applicable, and time had begun to run
|trom the date of the appellate decree declaring
lP«trtioners right to execute, dated 20th February
\\^^-^arayana Nambi v. Pappi Brahmnni,
'• i^. R. 10 Mad. 2i\ overruled. .Suppa Reddiar
'• AvcDAi Ammal (1905) . I. li. R. 28 Mad. 50

1 , : ~ Appeal — Order

eiuitng application for appointment of commissioner
o etject division of property by metes and bounds in

LIMITATION- ACT (XV OF 1877)-

Schedule II — contd.
Art. 178— contd.

contd.

partition suit. The parties to a suit for partition
entered into a compromise, which was recorded by
the Court and by which their respective shares in
the family property were agreed upon. An appli-
cation was subsequently made for the appointment
of a commissioner to effect an actual division of the
property, but the Subordinate Judge dismissed it
I on the ground that the right to claim further relief
, in the matter had becon.e barred by limitation. This
j order was reversed on appeal and the case was re-
j manded by the District Judge for disposal according
j to law. An appeal was then preferred to the High
Court against the order of remand, when it was con-
tended that no appeal lay to the District Judge
against the order of the Subordinate Judge -.—Held,
that an appeal lay. The order of the Subordinate
Judge on the face of it purported to decide a ques-
tion to be dealt w th under s. 244 of the Code of
Civil Procedure and was therefore a decree within
the meaning of that term in the Court, and that the
party against whom it was passed was entitled to
appeal therefrom. Even if there was no decree to be
executed, and the Subordinate Judge erroneously
supposed the matter to be one in execution, and
held the application to be barred, such usurpation of
jurisdiction could not make the order passed in
consequence thereof less appealable than would
have been the case had the order been passed in
execution proceedings under a decree duly passed.
Hurrish Chunder Choivdhary v. Kali Sundari Debia,
L. R. 10 I. A. 4, and Abdul Bahiman Saheb v.
Ganapati Bhatta, I. L. R. 23 Mad. 17, followed.
Such an application is not an application of the
description contemplated by Art. 178. Latch-
manak Chetty v. Ramanathan Chetty (1905)
I. L. R, 28 Mad. 127
68. Application in

time if icithin three years of breach complained of
— Court executing decree, powers of — Cannot go
behind decree — Civil Procedure Code (Act XIV of
1S82), s, 260 — Decree for perpetual injunction,
execution of. Where a perpetual injunction has
been granted on each successive breach of it the
decree may be enforced under s. 260 of the Code of
Civil Procedure by an application made within three
years of such breach under Art. 178, Seh. II of the
Limitation Act. The decree-holder is not bound to
take action in respect of everj' petty infringement ;
and the injunction does not by his inaction become
inoperative after three years from the date of the
tirst petty breach so as to disentitle him to take ac-
tion, wlicre a ser ous broacli is afterwards com-
mitted. Where thotcrms of a decree are clear, the
executing Court is bound to give effect to it and
cannot read into it limitations gathered from a
reference to the records of the suit. Venkatta-
challam Chetty r. Veerappa Pillai (1905)

I. L. R. 29 Mad. 314

69. ■ '■ High Court Ride

S-j9 — Application for enforcement for payment of
costs by a solicitor against his clierit ie not o/»

{ 7471 )

DIGEST OF CASES.

( 7472 )

LIMITATION" ACT (XV OF 1611)— contd.
Schedule II— contd.

Art. 118—concld.

application under the Civil Procedure Code — Art.
178 applies only to applications under the Civil
Procedure Code '(Act XIV of 1HS2). There is no
period of limitatioa provided for an application by
an attorney for payment of his costs under Rule
859 of the High Court Rules. Art. 178 of the
Limitation Act appHes only to applications under
the Civil Procedure Code. Bai Manekhhai v. Maneh-
ji Kavasji, I. L. B. 7 Bom. 213, followed. Waoia,
Gakdhy and Company v. PuRsnoTAM (1907)

I. li. B. 32 Bom. 1

Arts. 178, 179—

See Civil Procedure Code, 18S2, s. 318.

I. Ii. R. 32 Mad. 136

See Limitation . I. L. R. 29 All. 279
I. L. E. 30 Mad. 209

1. Ex parte decree

— Application for refund of the amount of decree
suhsequenthj set aside — Time for making such appli-
cation. An application for refund of the amount
levied in execution of an ex jjarte decree subsequent-
ly set aside is governed by Art. J 78, Sch. II, of the
Limitation Act, and should be made within three
years from the date of setting aside of that decree.
Kurupam Zamindar v. Sadasiva, I. L. E. 1 Mad.
66, followed. Harish Chundr i Shaha t\ Chandra
Mohan Dass( 1900) . I. L. B. 28 Gale. 113

2. Execution of decree

— Limitation — Decree for pre-emption — Time from
which limitation begins to run against the decree-
holder. Art. 179 of the second Schedule to the In-
dian Limitation Act, 1877, applies only where there
isa decree or order which can at its date be exe-
cuted. In the case of a decree for pre-emption
there is no decree capable of execution until the
decree-holder jjays into Court the pre-emptive price.
The first application, therefore, for execution of
such a decree will be governed, not by Art. 179,
but by Art. 178, and limitation commences to run
against the decree-holder from the time when the
pre-emptive price is paid. Muhammad Suleman
Khan v. Muha^nmad Yar Khan. I. L. R. 17 All.
39, referred to. Chhedi v. Lalu (1902) -

I. L. R. 24 All. 300

Transfer of Pro-

perty Act {IV of 1SS2), ss. 86 and 87— Applica-
tion for order absolute under s. 87 — Execution of
decree — Limitation. An application for an order
absolute under s. 87 of the Transfer of Property
Act, 1882, is an appHcation in execution of the
decree under s. 86 of the Act, and is governed, as to
limitation, by Art. 178 of the second Schedule to the
Indian Limitation Act, 1877, the time from which
limitation begins to run being the date fixed by the
decree under s. 86 for payment of the mortgage
money. K dar Nath v. Lcilji Sahai, I. L. R. 12 All.
61 ; Oudh Behari Lai v. Nageshar Lai, I. L. R. 13
AU. 278 : Chuni Lai v. Harnam Das, I. L. R. 20

LIMITATION ACT (XV OF IQll)— contd.

Schedule II — contd.
Arts. 178, IIQ— contd.

All. 302 ; Parmeshari Lai v. Mohan Lai, L L. I
20 All. 357 ; Bhagwan Ramji Marioadi v. Oani
I. L. R. 23 Bom. hit ; Mohammad Suleman Kha
V. Muhammad Yar Khan, I. L. R. 17 All. 39
Chhedi v. Lalu, All. Weekly Notes (1902)60 ; Ba
Sarup V. Gha-urari, I. L. R. 21 All. 4o3 ; ar
Ranhir Singh v. Drigpal Singh, I. L. R. 16 All. 2
referred to. Ai.i Ahmad v. Naziran Biri (1902)
I. L. R. 24 All. 54

4. 'Decree for sale

hypothecated property on a certain date in default
paym,ent — Order for stay of execution passed befc
date fixed for sale — Subsequent application for execi
Hon more than three years from date of decree. Bj
decree, dated 10th November, 1897, it was provid!
that, in default of the defendants in the suit payi
the sum decreed on or before the 10th May, 18f.
the hypothecated property .should be sold. At t|
date of the decree another suit was pending in tj
same Court, in which the decree-holders were c
fendants and the judgment-debtors plaintiffs, 'i
27th November, 1897, the judgment-debtors app
ed, under s. 243 of the Code of Civil Procedure, '
stay of execution of the decree pending the dispol
of the suit in which they were the plaintiffs, 'i
the 31st January, 1898, an order was passed stayi?
execution of that decree until the disposal of t>
other snit. The last-mentioned suit was disposedi:
on 23rd December, 1901, and on 20th March, 1%
the decree-holder in the earher suit applied that t«
hypothecated properties might be sold : — Held, tb
the application was not barred by limitation,
being governed by Art. 178, and not by Art. 1'
inasmuch as no prior application for execution
the decree or to take some step in aid of executii
of the decree had been made. Art. 179 is t
exhaustive of applications for execution of deerc.
There are cases to which Art. 178 may apply. ^
decree which directs the sale of mortgaged pr
perty in default of payment of the mortgage moiv
declared due on or before the date fixed in P
decree is not, within the meaning of paragrs^
6, column 3, of Art. 179, a decree directing '
payment of the amount to be made at a certain d -
If, however, there is also a personal dec
against the mortgagor, and the apphcation isi^
execute the decree as such, limitation will run im
the date of the decree, under paragraph 1 if pi'"
meut is enforceable under the decree from the d^
thereof, or from a future date, under paragraplK
if payment can be enforced under the decree ciy
on or after such future date fixed in the dec^.
Neither paragraph 1 nor paragraph 6 can appl.^!)
the execution of a mortgage decree a^ such,
to an application for sale of the mortgaged
perty which the decree direct? to be sold j
default of payment of the ascertained amount oi|r
before the day fixed in the decree. Pcinciples Ijd
down by which the article appUcable shouldie

( 7473 )

DIGEST OF CASES.

( 7474 )

JMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Arts. 178, 119— contd.

?ccrtaiued. The decision of the Full Bench in

fallikarjunadu Setti v. Lingamurli, I. L. R. 25

led. 244, in connection with questions relating to

citation, explained. Muhammad Suleman Khan

Muhammad Yar Khan, I. L. R. 17 All. 39;

uhummad Islam v. Muhammad Ahsan, I. L. R.

; AU. 237 ; Thakurdas v. Shadi Lai, I. L. R. S All.

; / AU Ahmed v. Naziran Bihi, I. L. R. 24 All

2 ; and Ashrafuddin Ahmed v. Bepin Behari Mul-

■k, I. L. R. 30 Calc. 407, approved and followed.

1 1 applications for the execution of a decree for

" of mortgaged property are not governed by

I. 178. Observations as to when Art. 179 will

applicable. The true criterion in determining

lether Art. 179 or Art. 178 applies to a particular

plication is to ascertain whether any one of the

, points of time specified in col. 3, Art. 179 is appli-

ijie to it, and if none of them is applicable, it is

y then that Art. 178 will apply. Under the

uitation Act of 1877, an apphcation cannot be

de merely for the purpose of signifying the

' ree-holder's intention to keep the decree in force.

'. SOIAH GOCNDEN AND Co. V. NaNJAPPA RoW

(tOS) . . . I. L. R. 26 Mad. 780

it. Civil Procedure

< !e, ss. 211 and 212 — Mesne profits left to he subse-
intly ascertained — Limitation. Where in a decree
I possession of immoveable property and for
ime profits the amount of mesne profits has been
li to be subsequently ascertained, neither Art. 178
Bi Art. 179 of the second Schedule to the Indian
Iliitation Act apphes to an application by the de-
c?-holder to have the amount of mesne profits
ai^rtained. PuranChand v. Roy Radha Kishen,
h. S.I9 Calc. 132, and Fatima Bihi v. Ahul Majid,
■fl- R. 14 All. 531, referred to. AVadiya Bibi v.
"^ r. Hassan (1904) . I. L. R. 26 All. 623

Execution of

-Limitation — Application to revive former

:t(On for execution. AVhere a decree-holder

I for the sale in execution of shares in five

and shares in two villages were sold and

ree satisfied, but subsequently the sale was

be a nullity, and the decree-holder made an

«i ication to revive the previous application •• —

".. that this was not an application coming under

A 179 of the second Schedule of the Limitation

it an apphcation to which Art. 178 applied,

>♦ to apply accruing on the date when the

-held to be a nullity. Khairun-nissa v.

•^hankar, I. L. R. 3 AU. 484, and Virasami v.

L. R. 7 Mad. 595, dist nguished. Bihaki

^'iSEi'. Jagarnath Prasad (1900)

I. L. E. 28 All. 651

Ko limitation

''^ng as proceedings initiated by decree-holder

''i\tndtng~Fresh application harrcd, if presented

"" than three years, after removal of bar. Where

!■ to execution proceedings is removed by the

LIMITATION ACT (XV OF 1877)— con<<?.

Schedule II — co7iid.
Arts. 178, 119—contd.

order of a lower Court, the fact that an appeal is
preferred against such order will not, when exe-
cution is not stayed in consequence of such appeal,
prevent limitation from running against the execu-
tion-creditor, until the disposal of the appeal. A
fresh application for execution presented more than
three years after the date of the order of the lower
Court will be barred by limitation. The dismissal of
an execution-petition without notice to the paities
and without removing the attachment made there-
under, is a mere direction to the officers of Court
to remove the application from the pending list.
The execution proceedings are not closed thereby
and must be considered pending. The decree-
holder's right to apply for their continuance accrues
from day to day and will not be barred till three
years 'have elapsed after such proceedings cease to
be pending. \\'hen an execution application is dis-
missed as aforesaid, a subsequent application, in so
far as it asks for the sale of properties already
attached under the former application, is one
for continuance of proceedings and not a fresh
application for execution. Kedarnath Dutt v. Harra
Ghand Dutt, I. L. R. S Calc. 420, followed. €hal-
AVADi Kotiah v. Poloori Alijielammah (1907)
I. L. R. 31 Mad. 71

8. Revenue Recovery

Act {VIII of lSfj5), ss. 36, 38, 40— Appli-
cations under s. 40 of the Revenue Recovery Act to
Civil Courts are for purposes of limitation gov-
erned by Art. 178 of Sch. II of the Limitation Act.
Where the purchaser of immoveable property sold
under s. 36 of the Revenue Recovery Act, obtains a
certificate as provided by s. 38 of the Act, and
applies to a Civil Court for delivery of possession
under s. 40 of the Act, such application, for
purposes of limitation, is governed by Art. 178
and not 179 of the Limitation Act, and will be
time-barred, if not presented within 3 years from
the time when the right to apply accrues. The
effect of s. 40 of the Revenue Recovery Act is to
place the purchaser in the position of a decree-
holder for the purpose of putting the machinery of
the Court in motion to give effect to the certificate
of the Revenue authority. S. 40 does not, however,
by implication make the law of limitation with
reference to the execution of decrees or orders of
Civil Courts applicable to proceedings taken under
its provisions. The grant of a certificate under s. 38
cannot be considered as a decree or order of a Civil
Court, although for the purposes of s. 40 it may be
regarded as a decree or order. An application under
s. 40 of the Revenue Recovery Act is an application
within the meaning of Article 178 of Schedule II of
the Limitation Act. Gnana Sambanda Pandara
Sannadhi v. David Nadar, 14 Mad. L. J. 433, dis-
tinguished. Jogemaya Dassi v. Thockomoni Dassi,
I. L. R. 24 Calc. 473, referred to. Su.^ya Pillai v
Ayyakannu Pillai, I. L. R. 29 Mad. 529, applied in
principle. Sambasiva Mudaliar v. Panchanada
PILI.AI (1907) . . I. li. E. 31 Mad. 24

( 7475 )

DIGEST OF CASES.

( 7476 )

lilMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Arts. 178, 119— contd.

Application for

ascertainment of mrsne profits — Civil Procedure
Code (Act XI V of 1S82), ss. 211, 212. Neither
Art. 178 nor Art. 179 of the Limitation Act applies
to an appHcation to ascertain the amount of mesne
profits awarded by a decree in accordance with
the provisions of s. 211 or s. 212 of the Code of
Civil Procedure. Pukan Chand v. PvOY Radha
KiSHEN . . . I. L. R. 19 Cale. 132

Peyag Singh v. Raju Singh

I. L. R. 25 Calc. 203

10. Application for

recovery of whole amount of decree under agree-
„ient — Civil Procedure Code, s. 257 A. On the 27th
August 1878 the holder of a decree for money
and the judgment-debtor agreed that the amount of
the decree should be payable by instalments, and
that, if default were made in payment of any one in-
stalment, the whole decree should be executed.
The Court executing the decree sanctioned this
agreement. On 28th November 1881 default having
been made, the decree-holder applied for recovery
of the whole amount of the decree. Held, that the
appHcation was not one to which Art. 179, Sch.
II of the Limitation Act, 1877, was applicable,
but Art. 178, and the period of limitation began
to run from the date of default. The principle
recognized in Baghubans Gir v. Sheosaran Gir,
I. L. B. 5 All. 243, and Kalyanbliai Dipchand v.
Ghanashamlal Jadunathji, I. L. B. 5 Bom. 29,
appUed. Sham Karan v. Piaei

I. L. R. 5 All. 596

11. Decree prohibit-
ing execution till the expiration of a certain period.
A decree which was passed on the 8th December
1881 in a suit on a simple mortgage-bond contain-
ed the following provision : " If the judgment-debt
is not paid within four months the decree-holder
shall have the power to recover it by a sale of the
mortgaged property." On the 17th February 1885
the decree-holder applied for execution of the de-
cree : — Held, that inasmuch as the decree provided
expressly that the decree-holder might not apply
for its execution till after the expiry of four months
from its date the Hraitation of Art. 178, Sch. II of
the Limitation Act, and not of Art. 179, should be
applied to the case ; and the application for exe-
cution, having been made within three years from
the 8th April 1882, when the right to ask for exe-
cution accrued, was not barred by limitation.
Thakar Das v. Shadi Lal . I. L. R. 8 AIL 56

12. Application for

execution — Intermediate suit — Fresh application —
Bevival of application. On the 27th March 1878,
the holder of a decree applied for execution.
On the 27th May 1878, the Court made an
order directing that the application should
be struck off, as the record of the former exe-
cution proceedings was in the Appellate Court,

lilMITATION ACT (XV OF 1811)— contd

Schedule II — contd.
Arts. 178, 119-^oncld.

and that the decree-holder should make a fre
appHcation when such record was returned, "i
the 28th May 1881 the decree-holder renew!
the appHcation in accordance with such ord,
Held, on the? question whether this appHcation \;
barred by Hmitation, that it was not an applicat i
within the meaning of Art. 179, Sch. II of Act 7
of 1877, but one to which Art. 178 would app ;
that Hmitation began to run when the record ■ d
returned, and that therefore (three years not hav«
elapsed from that time) the appHcation in quest n
v/as within time. Kalyanbhai Dipchand v. Oh i-
shamlal Jadunathji, I. L. B. 5 Bom. 29, and Fift
Bam V. Gardner, I. L. B. 1 All. 355, referred jj.
Raghubans Gir v. Sheosaran Gir .

I. L. R. 5 All. !:3

13. Limitation cl

(XV of 1S77), Sch. II, Art's. 178, 179— Art. T"!
applies where decree-holder obliged to refund seel to
execute hts decree — Period runs from the date of (jer
for such refund. Where a sale in execution .' a
decree is set aside at the instance of the judgn it-
debtor and the decree-holder is ordered to read
the purchase money paid to him and the de;e-
holder subsequently applies to execute his di'ee
such application in regard to Hmitation is govtied
by Art. 178 and not 179 of Sch. II to the Limit-on
Act, and time begins to run against the deee-
holder from the date when he is ordered to njnd
the purchase money, when alone his right to iPy
accrues. Issuree Dassee v. Abdool Khalok, 1. 1 S.
4 Calc. 415, and Kalyanbhai Dipchand v. G.m-
sham Lal Jademathji, I. L. B. 5 Bom. 29, foll.!ed.
Ramineedi Venkata Appa Rao v. Lak>iu
China Ayyanna (1906) . I. L. R. 30 Mad 509
Art. 179 (1871, Art. 167 ; ISi , s.

20)—

1. Law applicable to Application fob m)L

Execution . . . • ' *

2. Period from which Limitation

RUNS —

(a) Generally . . ^'^^^■

(b) Continuous Proceedings .\-^-

appeal ,

.i'OO.

(d) Where there has been ^i

Review . . . ■f"''*-

(e) Where previous Applica-L

TION HAS been MADE . J'"^^'

(/) Decrees for Sale . '^^'

(g) Clause 4 .
3. Nature of Application—

(a) Generally

7526.

(b) Irregular and Defectiv:
Applications . • '"' *■

( 7477 )

DIGEST OF CASES.

( 7478 )

.IMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

Art. 119— contd.

4. Step in aid of Execution-
(a) Generally

Col.
7549

(b) Striking Case off the File,

Effect op . . . . 7552

ceedings .... 7555

(d) SiTiTS and other Proceed-

ings BY Decree-holder . 7559

(e) Confirmation of Sale . . 7587
(/) Miscellaneous Acts op De-
cree-holder . . . 7589

:-. Xotice op Execution . . . 7593

6. Order for Payment on specified Date 7597

7. Joint Decrees—

(a) Joint Decree-holders . 7611

(6) Joint Judgment-debtors . 7617

8. Meaning op ' ' Proper Court ' ' . 7620

See anfe, Arts. 178, 179.

See Bengal Tenancy Act, Sch. II,

Art. 6 . I. L. R. 22 Cale. 644

5 C. W. N. 763

See Civil Procedure Code, 1882, s. 248.

I. L. R. 30 All. 536

See Execution I. L. R. 35 Cale. 1047

13C. W. N. 821; 533 ; 694

See Execution of Decree, step in

aid op . . I L. R. 29 All. 30l

I. L. R. 30 Mad. 541

See Execution of Decree — Transfer

OP Decree for Execution and

power of Court, etc.

I. L. R 12 All. 571
See Injunction — Disobedience of Or-
der for Injunction .

I. li. R. 23 All. 465
See Mortgage— Decree.

8 C. W. N. 251
See Partition — Miscellaneous Cases.

I. L. R. 22 Cale. 425
See Pauper Suit— Suits.

2 B. L. R. Ap. 22
See Second Appeal I. L. R. 30 Mad. 1

See Special or Second Appeal-
Grounds of Appeal — Questions op
Fact . . 13 B. L. R. Ap. 1
5 B. L. R. Ap. 59

See Transfer op Property Act (IV op
1882), s. 89 . I. L. R. 31 Mad. 68

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 179— contd.

— joint decrees — ^joint deeree^

holders —

See ante, ss. 7 and 8 and Sch. II, Art.
179.

1. LAW APPLICABLE TO APPLICATION FOR
EXECUTION.

1- -^ Ap-plication for

execution of decree on specially registered bond under
Registration Act (1S66), ss. 52, 63. Held, that Art.
167, and not Art. 166, Sch. II of Act IX of 1871,
applied to an application for the execution of a
decree made under the provisions of s. 53 of Act
XX of 1866 upon a bond specially registered under
the provisions of s. 52 of that Act. J.u Shankar v.
Tetley . . . . I. li. R. 1 All. 586

But see Bhaikambat v. Fernandez

I. Ij. R. 5 Bom. 673

Order for costs

by High Court on appeal. An order for costs made
by the High Court on appeal came -within the^scope
of Art. 167 of the Limitation Act of 1871, Sch. IL
Hurbuns Lall v. Sheonarain Singh

21 W. R. 391

3. -^ Application for

execution of decree for costs tvhen rejecting petition
to appeal to Privy Council. The period of limitation
M-ithin which appHcation must he made for execu-
tion of an order for costs passed by the High Court
when rejecting a petition for leave to appeal to the
Privy Council is that specified in Sch. II, Art. 167,
of Act IX of 1871. HcERO Pershad Roy Chow-

DHRY V. BhUPENDRO NaRAIN DuTT

I. L. R. 6 Cale. 201 : 7 C. L. R. 79

Application

ascertain how much judgment-creditor has been paid.
An application asking the Court to ascertain and
determine how much a judgment-creditor has been
overpaid is not barred by the lapse of the time al-
lowed for execution of a decree if the applicant has
not been guilty of laches, and if he has come with
due diligence. Muthoora Pershad Singh v.
Shumboo Geer . . . 22W. R. 211

5. Decree in force

at passing of Act XIV of IS.59. Where a decree
was in force at the passing of Act XIV of 1859, it
would be barred after three years ; but if steps
had been taken, and an application made \\-ithin
that period, a second application woukl fall within
the rule laid down in s. 20 of that Act. Okegory
V. JoYCHUN-DER Banerjee 1 Ind. Jur. N. S. 80

6. Deaee in force at

passing of Act XIV of IS 59. In 1845 A' and 31 ob-
tained a joint decree for possession and mesne
profits against N.» In 1846 possession was taken,
and the case was struck off in 1847. In 1850 K
alone applied for execution and was refused, he not
being the sole decree-holder. K disappeared in

( 7479 )

DIGEST OF CASES.

( 7480 )

XIMITATION ACT (XV OF l87T,—contd.

Schedule II — contd.
Art. 179— contd.

l.;LAW APPLICABLE TO APPLICATION FOR

EXECUTION— co?i<rf.
June in 1851, and was never afterwards heard of.
In'February 1852 S S, wife of K, and E, uncle of K,
applied to execute the decree, alleging that it had
been transferred in gift to them by K, but their
application was rejected, because M had not joined ;
and, secondly, because no order could be passed in
the absence of K. On 28th December 1861 /S *S
again applied for execution of the whole decree,
claiming her husband's share as his heir, and ilf's
under a deed of gift, and her application was re-
jected on the ground that, as twelve years from
the disappearance of her husband had not expired,
and she had not performed the ceremony of koosha-
putra, she could not claim as his representative.
An appeal from this order was rejected on 6th
December 1862. In 1863 S S applied for a certi-
ficate, under Act XXVII of 1860, to collect the debts
due to her husband, which was granted in July in
1864. ': The present appUcation was made hy S S
and M on the 23rd August 1864, SS having per-
formed kooshaputra on 18th June 1863. The
Court found that the various attempts to execute
were made bond fide .- Held, first, that the decree
was in force at the time of the passing of Act XIV of
1'859 ; secondly, that the present application, having
been made within three years of the proceedings in
1861, was in time under s. 20 of that Act. Pogose
V. BoiSTUB Lall

2 Ind. Jur. N". S. 1 : 6 W. E. Mis. 104

7. • Application for

execution of decree. Application for execution of a
decree passed on 13th May 1869, and for which the
period of Limitation was three years, was made on
13th May 1872— Held, the execution was barred by
Art. 167, Sch. II of Act IX of 1871, notwithstand-
ing the suit had been instituted before 13th April

1873. NUNDO COOMAR MOOKERJEE V. ISSUR

Chundek Bhuttachakji . 12 B. L. R. Ap. 9
8- -^ Period from

which limitation runs — Payments since that date
Limitation Act (No. IX of 1871) governs appli- i
cations to execute decrees made before the Act, |
and, in computing the period of limitation, the Act
directs the date of the prior appUcation to" be taken,
and that date cannot be altered because inter-
mediate payments may have been made on account
of maintenance. Naranappa Aiyan v. Nama
Ammal alia-f Parvathy Ammal . 8 Mad. 97

See Krishna Chetty v. Rami Chetty.

8 Mad. 99

Mahalakshmi Ammal v. Lakshmi Ammal.

8 Mad. 105

Collector of South Arcot v. Thatacharry.
8 Mad. 40

^' : Application for

•execution of decree— General Clauses Consolidation

LIMITATIOISr ACT (XV OF 1877)-<ontd.

Schedule II — contd.
— Art. 179— contd.

1. LAW APPLICABLE TO APPLICATION FO

EXECUTION— co?i«c?.
Act, 1S68, s. 6. An application for execution of
decree being made on the 27th September 187
held, not to be a suit within the meaning of s. 1, (
(a), of Act IX of 1871, and therefore barred und
Sch. II, Art. 167, of that Act, as having been ma.
more than three j^ears after the date of the last pi
ceding application. The application of the 27
September 1871 could not be regarded as a me
continuation of a proceeding pending — viz., of
former application of the 7th January 186£
within the meaning of Act I of 1868, s. 6, at tl
time when the new Limitation Act came ini
operation, though the order on the latter applic
tion, having been made on the 31st March 187
would possibly have been a sufficient proceedi-
within the 20th section of Act XIV of 1859 ■
constitute a fresh terminus whence time mig;
run under that Act. Govind Lakshtjman ,
Narayan Mareshvar . . 11 Bom. 1.

Balkrishna v. Ganesh
10.

11 Bom. 116 noi
Act IX of IS,

s. 1 — Execution of decree in suit instituted before i
April 1S73. An application for execution of a "
cree is an application in the suit in which that i-
cree has been obtained. From this, and from 3
enactment in s. 1 of Act IX of 1871 that nothi;
contained in^s. 2, or in Part II of that Act, slil
apply to suits instituted before the 1st April ISL
it follows that nothing contained in Sch. II of t!t
Act extended to an appUcation for execution cja
decree in a suit instituted before that date. |0
such application was barred by s. 20 of Act XlVjf
1859, if made within three years from the date (A
proceeding within the meaning of that section, l-
though the execution of a decree may have bp
actually barred by time at the date of an applij--
tion made for its execution, yet, if an order fr
such execution has been regularly made by a c<|i»
petent Court, having jurisdiction to try wheth(|ifc
was barred by time or not, such order, althoch
erroneous, must, if unreversed, be treated as val.
Mungul Pershad Dichit v. Grija Kant LAii'il
I. L. R. 8 Caic. 51 : 11 C. L. B. 3
L. R. 8 L A. .3

Reversing on appeal, Mungtjl Pershad Did^T
V. Shama Kant Lahiri Chowdhry

I. L. B. 4 Calc. ' 8

11. Application or

execution — Act IX of IS 71, s. 1. The time '«•
scribed by the Limitation Act (IX of 1871) wi'"
which appUcations for execution may be ii"^
governs all such appUcations made during the ue
that Act was in force. Unnoda Pershad Eo '•
KOORPAN Ali

I. L. R. 3 Calc. 518 : 1 C. L B. )»

12. Applicatif)r.lcr

execution — Law in force at time of appUca''"

7481 )

DIGEST OF CASES.

{ 7482 )

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 179— contd.

. LAW APPLICABLE TO APPLICATION FOR
EXECUTION— ro?;/f/.

"he law of limitation applicable to proceedings in
secution is not the law under which the suit was
istituted, but the law in force at the date of the
pplication for execution, in absence of a legislative
Tovision to the contrary (such as that contained in
. 1 of Act IX of 1871). GrRUPADAPA Basapa v.
lEBHADRAPA Iksanoapa . I. L. R. 7 Bom. 459

LIMITATION ACT (XV OF 1877)-<ontd.

Schedule II — contd.
Art. 179— contd.

13.

Execution of de-

\.e — Limitation applicable to execution of a decree

assed previous to the 1st October IS 7 7 — Limitation

d (XV of 1S77 ). Art. 17S— General Clauses Consoli-

ition Act (I of JS'JS), .'. )!, effect of. In execution

■a decree, dated the 17th January 1877, the judg-

ent-creditor applied on the 13th May 1878 to have

le property of his judgment-debtor sold on the

ith September 1878. Subsequently, on the 2nd

me 1881, he made a further application to have

e decree executed. Held, that the case was

'vemed by the provisions of Art. 167 of Act IX

■ 1871, and not by those of Art. 179 of Act XV of

■ 77 ; and that, as the application had not been

|ide within any one of the periods given in the

,ird column of Art. 167, it was barred by limita-

im. Held, also, following Mungul Pershad Dichit

Grija Kant Lahiri, 1. L. R. S Cede. 61, that,

hough there is no corresponding provision in

t XV of 1877 to that contained in s. 1 of Act IX

1871, all appHcations for execution of a decree

) applications m the suit which resulted in that

,:ree. Behary Lall v. Goberdhun Lall

I. L. R. 9 Calc. 446 : 12 C. L. E. 431

' "^^ " Execution of de-

;. application for — Step in aid of execution —

peal, (ffect of. On the 28th September 1877 an

jplication was made for execution of a decree. On

[' 8th July 1878 the decree-holder deposited R2

'|nilamee fees, that is to say, costs for bringing

'jtain property to sale in execution of the decree.

' the 28th March 1881 a further appUcation for

■ <ution of the decree was made. Held, that the

>OBit of R2 as nilamee fees on the 8th July

8 was a step in aid of execution of a decree, and

' t the application of the 28th March 1881, being

"hm three years from the date of the deposit, was

'irred by hmitation. Qua-re : \Yhether, in-

li as Act IX of 1871 is repealed by Act XV

I . and the latter Act contains no provision

il YTv" *^at contained in s. 1 of Act IX of 1871,

AlV of 1859 can be said to have been repealed

Mspect of suits instituted before the 1st of April

'•i Kadha Prosad Sikgh v. Sunder Lall

I. I.. R. 9 Calc. 644

1. LAW APPLICABLE TO APPLICATION FOB

EXECUTION— co^(^/.
execution in 1874, and his appUcation was disposed
of on the ground that the requisite Court-fee had
not been paid. His next application was in 1876,
and it was disposed of because no propertj' could be
found to satisfy the decree. His third application,
made on the lOth of March 1879, was one asking
merely that the decree might be kept ahve. He now
applied for the fourth time on the 2Gth of Novem-
ber 1881, and sought execution of the decree.
Held, that the law of limitation applicable to pro-
ceedings in execution is not the law under which the
suit was instituted, but the law in force at the da to
of the application for execution, in absence of a le-
gislative provision to the contrary (such as that
contained in s. 1 of Act i:^ of 1871). The law of
limitation therefore to be applied to the appUcation
of the 10th March 1879 was Act XV of 1877 ; and
inasmuch as that application did not ask for any
step to be taken towards executing the decree,
it was not in accordance with Art. 179, Sch^ II of
Act XV of 1877, and did not save the present appli-
cation from being barred. Mungul Pershad Dichit
V. Grija Kant Lahiri, I. L. B. S Calc. '1, ex-
plained. GuRTjPADAPA Basapa v. Virbhadrapa
Irasangapa . . . I. L. R. 7 Bom. 459

18- Proceeding to (n-

Application for execution of decree passed he-
lf« of 1677 came into force— Application to keep
■ tcree. The plaintiff obtained a decree against
^'cfendant in 1872. He first appUed for its

force judgment. Act XV of 1877 operates from the
date on which it came into force as regards all appli-
cations made under it. Behary Lall v. Goherdlti.n
Lall, I. L. R. 9 Calc. 416, dissented from. An ap-
plication for execution was made on the 2nd of
March 1872. In the execution-proceedings certain
properties were attached and a sale-proclamation
was issued. A claim to a portion of the properties
was then preferred by third parties and aUowed on
the 17th of June 1872. The decree-holder failed
to take necessary measures to bring the remainder
of the property to sale, and the case ^^■as struck ofli
on the 4th of July 1872. A subsequent applica-
tion for execution was made on the 14th of June
1875. Held, that the subsequent application was
not barred by the provisions of s. 2U, Act XIV of
1859. Becharam Dutta v. Abdul Wahed

I. L. R. 11 Calc. 55

1*^- " Applications un-

der s. 89, Transfer of Properly Act (IV of LSS-J).
Art. 179, Sch. 11 of the Limitation Act (XV of 1877)
appUes to appUcations under s. 89 of the Transfer cf
Property Act, Bhagawan Ramji Marwadi r
Ganu . . . I. li. R. 23 Bom. 644

^ ^^ ^ ~ ; ; Decree of Small

Cause Court transferred to High Court for execution

Ciril Procedure Cod<, Act VIII of 1859 *v- -^^7
Act IX of 1871, 1 288 (Act XIV of m-), ss. -jo/^ 228-Orderin
suit liable to be questioned by third persons not
partie-1 to suit—Revnor. Having regard to the
provisions of ss. 227 and 228 of the Code of CivU
Procedure (Act XIV of 1882), the period of iimita-

( 7483 )

DIGEST OF CASES.

( 7484 )

XIMITATION ACT (XV OF 1811)— contd.
Schedule II — :ontd.

Art. 119— contd.

1. LAW APPLICABLE TO APPLICATION FOR
EXECUTION— cow<(^.

tion applicable to the execution of a decree, trans-
mitted by one Court to another for execution, de-
pends on the character of the Court which passed
the decree and not on the character of the Court
executing it. S, a judgment-creditor, who had ob-
tained his decree in the Calcutta Court of Small
Causes on the 29th .July 1884, had it transferred to
the High Court for execution, and took certain
proceedings there to execute it. which resulted in an
order passed on the 13th June 1885, for payment
out to him of certain moneys reahzed in the pro-
ceedings in part satisfaction of his decree. Pay-
ment was actually made on the 8th August 1885.
The next step in execution was an application
made on the 14th September 1888 ; the usual notice
was issued, and no cause being sho\vn by the judg-
ment-debtor, an order was made on the 19th
December for the attachment of certain moneys in
the hands of a receiver belonging to the judg-
ment-debtor. These moneys were also attached by
other judgment-creditors. The question was then
referred to the Registrar to enquire and report who,
under the provisions of s. 295 of the Code of Civil
Procedure, were entitled to share in such moneys,
and in what proportion. It was objected that S
was not entitled to share on the ground that on the
14th September 1888 the right to execute his decree
was barred by Hmitation. The question was re-
ferred by the Registrar to the Court. Held, that, as
imder Art. 179, Sch. II of Act XV of 1877, the period
applicable to decrees of the Small Cause Court was
three years, the application of the 14th September
1888 was barred by limitation, and that S was not
entitled to share under the provisions of s. 295.
Held, further, that the order of the 19th December
1888 having been made out of time, though on
notice to the judgment-debtor, there was nothing
to prevent a third party questioning its propriety,
though the parties to the suit might be precluded
from doing so. Had it been otherwise, Qucere :
Whether it would have had the effect of reviving
the decree. A-^hootosh Dutt v. Doorga Churn
Chatterjee, I. L. R. « Calc. 304, doubted. Tin-
cowrie Dawn v, Debendeo Nath Mookerjee
I. L. R. 17 Calc. 491

19. Bengal Tenancy

Act {VIII of 188-5), Sch. Ill, Art. 6— Whether an
application for execution of a decree for a sum not
exceeding R500, obtained by a co-sharer landlord for
his s'tare of the rent, is governed by the special rule of
liynitation as laid down in Bengal Tenancy Act or
ly the general law of limitation ax laid down in the
Limitation Act. An application for execution of a
decree for a sum not exceeding R500, obtained
by a co-sharer landlord for his share of the rent,
is governed by Art. 179 of the second Schedule to
the Limitation Act (XV of 1877), and not by Art. 6
of the third Schedule to the Bengal Tenancy Act.

LIMITATION- ACT (XV OF 1877)— con

Schedule II — contd.
Art. IIQ— contd.

1. LAW APPLICABLE TO APPLICATION li

EXECUTION— conirf.
(VIII of 1885). Kedar Nath Banerjee v. Abj
Chunder Roy (1901) . I. L. R. 29 Calci

20. Mortgage — i

cution of decree, application for — Pleading i
tation in appeal. In an application for ejM
tion of a mortgage decree by a prior mortge
a subsequent mortgagee as a judgment-debt
competent to plead limitation, either in th^n
Court or in appeal. Art. 179, Sch. II, c tl
Limitation Act applies to an application for e:pi
tion of a mortgage decree. Troylokya jIt
BosE V. Jyoti Prokash Nandi (1903)

I. L. 11.30 Calc. re

21.

d. 5. — Exet'ic

— Decree — Application for execution — Civil ha
dure Code (Act XIV of 1SS2), s. 248— Noi?-
Date of the order. The date of issuing a i;ic
under s. 248 of the Civil Procedure Code (Act Jli
1882) is the date on which the Court orders t't i
should issue, and not the date on which the i;iP'
is formally drawn up afterwards and sited
The Hmitation therefore under Art. 179, cl. 5, c th
second Schedule to the Limitation Act (XV of '77
runs from the former date. Govind v. iD-
(1904) . . . I. L. R. 28 BomlH

22. Suspensic c

execution proceedings — Revival of pending ezttioi
suspended by or on default of the decree:''!'''
On 24th August 1888 an application was mi
execution of a decree, and on 18th Dc
1888 execution was allowed to proceed. 0.
November 1889 it was ordered that tin
should be struck oS the file and the record
ferred to the Court of the Collector for exi-
On 23rd December an order was made that,
decree-holder had not made a deposit on a
of the transfer to the Collector, " therefore
fault of prosecution on the part of the decree-
the record be not sent to the Collector's f
On 15th February 1889 an appeal had be>
ferred to the High Court from the order ■
December 1888 allowing execution to proci
the High Court reversed that order on 7th J
1890, but on appeal to the Privy Council th
allowing execution was restored on 12th 1 -
ber ISM '.-Held, by the Judicial Comittee
(affirming the decision of the High Court), (*' an
appKcatiou for execution made on 23rd No>|>«^
1897 was one to revive and carry through a ilyJ^
execution suspended by no act or default ttn«
decree-holder, and not an application to in-J'te a
new one, and was therefore not barred by limwo"-
The order of 29th November 1889 was one Mi^oi
execution and that of 23rd December wa' ■" ^
sense a final order ; if the appeal from the ( -cro
18th December 1888 and the proceedings ui-^g„,
order of the Privy CouncU of 12th Decemb i»»»

( 7485 )

DIGEST OF CASES.

( 7486 )

LIMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 119— contd.

. LAW APPLICABLE TO APPLICATION FOR

EXECUTION— co/t/rf.
lad not intervened there was nothing in its terms

0 prechide the decree-holder from coming again to
he Court, and, after satisfying the conditions in-
licated in the order, obtaining the transmission of
he case to the Collector's Court. Kamar-ud-din
Vhmad v. Jawahir Lal (1905)

I. L. B. 27 AIL 334
L. R. 32 I. A. 102

28. "Axjplication in

,iCordance with Zott;" — Application by guardian on
eJinlf of one found to he a major at the time —
urisdiction of Court to review its own order, when
in appeal lay. An application for execution
jiade by A as guardian on behalf of B, who was

major at the time the appHcation was made,
i not an " application in accordance with law "
■ithin the meaning of Art. 179, Sch. II of the
.imitation Act, and will not operate as a bar to
mitation, though it may perhaps be a good appli-
iition for other purposes. Taqui Jan v. Obaidulla,
'^ L. R. 21 Calc. S66, distinguished. Neither can
jich an application be considered an appHcation
ly B under s. 235 of the Code of Civil Procedure.
j Court can review its own order in execution,

1 though an appeal might have been, but was not
•cferred. Saeamma v. Seshayya ( 1 905)

I. L. B. 28 Mad. 396

24.

Application to

,1-e a step in aid of execution — Execution petition

idjourmnent of sale on application of judgment-

\htor consented to by decree-holder — Subsequent

implication within three years of date of adjourn-

\tnt, hut more than three years from previous ap-

iicalion — Limitation. A decree-holder applied

|r execution of his decree. The last preceding

|>plication had been made more than three years

fore the jjresent one. In that application the

|cree-holder asked that the properties of the judg-

"nt-debtor might be sold. The judgment-debtor

applied for a postponement of the sale, to

I the decree-holder consented. The pre-

^ipplication was made within three years

;he date of the judgment-debtor's application

Jiostponement of the sale. The sale had, in

not been cairied out -.—Held, that the appli-

■1 was barred by limitation. The mere consent

lecree-holdcr to the application made by the

;,-uient-dcbtor was not " an apphcation "" by

r^decrec-holder, within the meaning of Art. 179

Jbch. II to the Limitation Act. Held, also, that

^acknowledgment of indebtedness in the appli-

r°° of the judgment-debtor for a postponement

me sale did not give a fresh starting point for

' itatjon under s. 19 of the Act ; nor could a part-

jl'ment of the principal be relied upon under s. 20,

' tue same principle applied to sg. 19 and 20.

'PPucami Chitty y. Btngasami Pillai, I. L. B.

LIMITATION ACT (XV OF 1877)— conii.

Schedule II — contd.
Art. 119— contd.

1. LAW APPLICABLE TO APPLICATION FOR

EXECUTION— concW.
27 Mad. 60S, followed. Sreexivasa Chariae v.
PoNxuSAWiMY Nadar (1905)

I. L. B. 28 Mad. 40

25.

Mortgage — De-

cree for redemption — Extension of time for payment of
the mortgage amount — Execution. In a suit for re-
demption of the mortgage property the decree dir-
ected that upon payment of the mortgage amount
within six months from its date the decree-holder
should take possession of the mortgage property.
The decree was affirmed on appeal on the 6th Nov-
ember 1896. The decree-holder failed to pay the
amount within the time fixed in the decree. The
present application was made on the 15th October
1902 to the Court to have the time extended for
three months. The decree-holders' last applica-
tion to execute the decree was made on the 21st
April, 1897 : — Held, that the apphcation was barred
by limitation. Notwithstanding that time is
granted to a mortgagor for payment, a decuee for
redemption such as that in the present case should
be taken to be executable from the passing of the
decree and is therefore governed by Art. 179, Sch.
II of the Limitation Act. Eungiah Goundan v.
Nanjappa Row, I. L. R. 26 31 ad. 7 SO, approved.
Etyati Poopakameil Bava v. IMatai.akat
Krishna Menon (1905) . I. L, B. 28 Mad. 211

26 ■ Decree, which

leaves matters to be subsequently ascertained. A
decree, which leaves certain matters to be subse-
quently ascertained, becomes ca])able of execution
as to them only when they are ascertained ; and an
application for execution of such decree in regard to
such matters will not be barred, if presented within
three years of the time when, by such matters being
settled, it becomes executable. Ratnaciialam
Ayyar v. Vexkatrama Ayyar (1905)

I. L. B. 29 Mad. 46

2. PERIOD FROM WHICH LIMIT.\TION RUNS,
(a) Generally.

1. Meaning of the

words " date of the decree.''^ The words " date of
the decree " in Sch. II, Art. 179, of the Limitation
Act mean the date the decree is directed to bear
under s. 205 of the Code of Civil Procedure, and
that is the date on which the judgment was pro-
nounced ; therefore an application to execute a
decree, if not made within three years from the
date when the judgment was pronounced, is
barred by limitation. Bani Madhub Mittcr v.
Matungini Dassi, I. L. R. 13 Calc. 104, referred to.
GoLAM Gaff^vr Mandal v. Goljax Bib I

I. li. B. 25 Calc. 109

Apzul Hossain v. U-mda Bibi

1 C. W. N. 93

( 7487 )

DIGEST OF CASES.

{ 7488 )

LIMIT ATION ACT (XV OP 1877)— coriid.
Schedule II — contd.

.Art. 179— contd.

LIMITATION

2. PERIOD FROM WHICH

RV^S— contd.

(a) Generally — contd.
2. • Decree specify-

ing a certain time for execution — Construction —
Condition precedent. The plaintiff obtained a de-
cree on the 25th July 1882, which directed that he
should give the defendant possession of certain
parcels of land at the end of next Margashirsha (i.e.,
9th January 1883), and that, on his doing so, the
defendant should remove certain hedges and sheds,
and restore the land in suit to the plaintiff. On the
9th December 1885 the plaintilf apphed to execute
the decree. The defendant resisted the application
as being time-barred. He contended that the
plaintiff having failed to deliver up the land in his
possession within the time specified in the decree,
he had lost his right to execute the decree : Held,
that the appHcation was not time-barred. The
specification of the end of Margashirsha had merely
the effect of postponing the operation of the decree
till that time, and the plaintiff had three years from
that date within which he might seek execution.
The mention of a term when a particular right is to
become enforceable is not a condition precedent,
whether the enforcement be otherwise subject to a
condition or not. Narain Chitko Juvekar v.
ViTHUL PARSnoTAM . I. L. E. 12 Bom. 23

3. — ^ Execution of de-

cree determining rights of rival religious sects — Decree,
whether executory or declaratory — How far a sect
bound by decree against some of its members. In
a suit determined m 1840, in which various members
of the Vadagalai sect residing in a certain village
were plaintiffs, and various members of the Ten-
galai sect residing in the same village were defend-
ants, it was held that an image of a priest revered
by the latter sect was not entitled to a place in a
certain temple of the village, or to public worship in
a certain street, or to procession in the streets of the
village ; and it was directed that, if the defendants
continued to make the image an object of public
worship, it should be removed. In 1888 various
members of the Vadagalai sect, asserting that the
members of Tengalai sect had acted in contraven-
tion of the decree in the above suit, filed an execu-
tion-petition therein, praying that various members
of the Tengalai sect be arrested, and ' ' that the
image of their priest, which they attempt to worship
publicly, be removed until they obey the terms of
the decree." It appeared that in 18G8 the Dis-
trict Magistrate had granted an application to res-
train the Tengalais from acting contrary to the
above decree. The execution-petition was dismissed
by the District Court : — Held, that the petition
was rightly dismissed, since the execution of the
decree was barred by limitation, which began
to run at all events from 1868, and the decree, if it
was capable of execution at all, could not be execut-

lilMITATIOW ACT (XV OP 1877)— contd
Schedule II — contd.

Art. 179— cant

2. PERIOD FROM WHICH

F.VSS— contd.

LIMITATIC

(a) Generally — conoid.

ed against the parties to the present petitic
Sadagopachari v. Krishnamachari

I. L. R. 12 Mad. 31

4. el. (5) — Notice under s. 248 '■

the Civil Procedure Code (Act XIV of 1882^-
" Date of issuing notice," meaning of — Minister]
Act. Held (Pargtter, J., dubitante). that, in i
case of an appHcation for the execution of
decree under Art. 179, el. (5) of Sch. II of t'-
Limitation Act, time runs from the date when not '>
is actually issued under s. 248, Civil Procedure Co(
and not from the date of the order of the Court i
issue such notice. Kadarzssur Sen v. Moh,
Chandra, 6 C. W. N. 656, followed. Damoc
v. Sonaji, I. L. R. 27 Bom. 622, and Gobind,.
Dada, I. L. R. 2S Bom. 416, not followed. Rat.'
Chand Oswal v. Deb Nath Barua (1906)

10 C. W. IT. 3(

(b) Continuous Proceedings.

Order refui^

execution operating as stay of rocess. A decjJ-
holder applied for the sale of c etain property tin
under attachment in the suit. The Court refui
to issue process for the sale, on the ground that e
property could not be sold, as certain claims .'id
suits respecting it were stiU pending. The claia
and suits having been determined, the applicaila
was renewed. More than three years had elaj'd
between the date of the order on the first appli-
tion and the date of the renewed application:— Zi'i.
that the second application was not barred, fift
order on the first application operating simply I a
temporary stay of process for the sale of the prop ' ^'
and there being a pending proceeding to eiil
the decree during the stay. Ragava Pisbliki
Ayumanjuri Mankal Thupan . 4 Mad. ^^

6. — Continuing p

tachment — Process to enforce decree. An attachr^t
of property in execution of a decree operates di\it
in diem as process of execution upon a de(|'«'
Where therefore the late Sudder Court, by an ol^r
dated 25th July 1855, directed that the judgmit-
debtor should be allowed to remain in the er|y-
ment of property then under attachment, thafiu
order for the sale of the property should be stcf'd*
but that the attachment should continue in .rc<3
until the further order of the Court ; and on Jtli
May 1863 the High Court made an order sejng
aside the order of the Sudder Court, and statedwii
the assignee of the execution-creditor shoul x^
left at hberty to apply for execution of the decrc:
Held, on an application made reversing the dec'^Q
of the Court below, that the right to enforce ' • ■

( 7489 )

DIGEST OF CASES.

7490 )

IMITATION ACT (XV OF 1877)— cowicZ.
Schedule II — conUl.

Art. 179— contd.

PERIOD FROM WHICH LIMITATION

RUNS— co«/f/.

(b) CoxTiNuous Proceedings — coritd.
ent of the amount due under the decree was not
rred. Brooks v. Pattammari Nanjappa Naick
4 Mad. 316

But see Radhika Chowdhrain v. Ltjkhee
(rxDEB Ghose . . . 18 W. R. 513

i7.

Contimad pro-

_ >r>e panne atcrtt^

ynlumed appUction. Where a plaintiff ob-

fia separate decrees against several persons in

"Ject of several duties which they were to perform

Kjrately, and the plaintiff chose to proceed in the

[ VOL. III.

^iruf — Application struck off. The effect of an
ler striking off execution-proceedings in conse-
ence of an adverse decision against the decree-
,lder under Act VIII of 1859, sr246, is not to dis-
se finally of the application for attachment and
i.e ; and if the result of a regular suit prosecuted
th due dihgence is a final decree in his favour,
d he makes an application for the execution of
s decree, such application, whatever its form, is
substance one for the continuation of the former
,)ceedings, and is therefore not an application to
. 'Cute the decree within the meaning of Act IX of
11, Sch. II, Art. 167. Pyaroo Tuhovildarinee
Sazir Hossein . . . 23 W. R. 183

3. Application for

icution " titruck off the file'' — Further application
i execution — Renetval of provious application.
■ application for execution of a decree of a District
'• nsif was made in April 1893, but was struck off
1 file on 20th July 1893, on a stay of execution
i'ing been ordered by the Subordinate Judge.
•I er the termination of the proceedings in the
t)ordinate Court, the decree-holder applied again
1 execution on 6th July 1S96. Hekl, that the
l;er appHcation should be regarded as a continua-
' 1 of the former, and was not barred by limitation.
arna Tevar v. Arulanandam Pillai

1. L. R. 21 Mad. 261
Decree-holder, re-

Id by, of money paid to satisfy decree — Revival of
C'l'nai decree — Application to execute. A decree
I ing been satisfied by the decree-hol ler obtaining
a order for the payment to him of a certain sum

0 aoney which was deposited in Court in his judg-

1 It-debtor's name, the decree-holder, owing to
8|3equent proceedings of the son of the judgment-
^itor, had to refund the money which he had
rjiived. He then applied again for execution, but,
?iiy years having elapsed since the last proceed-
^1'. was met with the objection that his decree was
tjred by Umitation -.-Held, that, on a proceeding
^li as this, the (Id decree, which had been satis-

'""'uld not revive. Abdool Juleel v. Kan-
^ossEE . . . . 24 W. R. 143
Separate decrees

LIMITATION ACT (XV OF 1817)— co7itd.

Schedule 11— contd.
Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION
IRXmS— contd.

(b) Continuous Proceedings — contd.
first instance, against some, and not against others,
in taking out execution : — Held, that the proceedings
in taking at different times were not continuous pro-
ceedings in execution, and that limitation would run
separately from the date of the latest action in each
cai=p. Chowdhry Hueeehur Singh v. Hridoy
Narain . , . . 25 W R. 310

11. Application for

execution of decree — Decree barred bn lapse of time.
In a decree for possession passed on 19th December
1 874 the enquiry into the mesne profits was reserved
for the execution stage. Possession having been
taken, execution was taken out for costs, but owing
to disputes among the judgment-creditors the
amount deposited in Court was not paid out till 7th
February 1868. After this, on 1st June 1870, ap-
plication for further execution was made by assess-
ment of mesne profits, upon which attachment was
effected ••—Held, that, as the application of 1st June
1S70 was not for a continuation of the original suit,
but for execution of the decree, the judgment-credit-
or was bound by the rules relating to execution-,
but that, even if treated as an appHcation for ad-
justment of the wasilat, it was rightly rejected by
re.ison of the great and needless delay. Wodoy
Tara Chowdhrani v. Abdul Jubbur Chowdhry
24 W. R. 339

12. Application for

execution of decree — Continued application. An
application which is pending must be looked upon
as a continuous proceeding until it is disposed of.
Shurut Chunder Sen f. Abdool Khyr Mahomed
Mohutesur Billah . . 23 W. R. 327

13. — Continued appli-
cation— Proceeding to enforce decree. — It was the
object of the Legislature in Act XIV of 1859, s. 14,
with regard to the limitation for the commencement
of a suit, to exclude the time during which a party
to the suit may have been Utigating, bon^ j'de and
with duo diligence, before a Judge whom he has
supposed to have had jurisdiction, but who yet may
not have had it. The same principle prevails in the
construction of s. 20 with regard to executions : —
Held, accordingly, that a proceeding, taken bond fide
and with due diligence, before a -Judge whom the
judgment-creditor believed, bond fide, though er-
roneously, to have jurisdiction, — in this case the
Judge himself also having believed that he had
jurisdiction, and having acted accordingly-, — was a
proceeding to enforce the decree within the meaning
of s. 20. Hiba Lal v. Badri Das

I. L. R. 2 All. 792

14. Application for

execution of decree. On the 26th June 1867 a decree-
holder applied for execution of his decree. A notice
was thereupon issued to the judgment-debtor to

11 F

( 7491 )

DIGEST OF CASES.

( 7492 )

LIMITATION ACT (XV OF 18n)-<ontd.
Schedule II — contd.
Art. 179 — contd.

2. PERIOD FROM AVHICH LIMITATION

n\JNS— contd.

{b) Continuous Proceedings — contd.
show cause, on the 13th of July 1867, why the
decree should not be executed against him. The
judgment-debtor not appearing to show cause on the
13th July 1807, the Subordinate Judge of Surat or-
dered a warrant to be issued. Subsequently, on the
same day (13th July 1867), the decree-holder ap-
plied to the Court to stop all further proceedings in
the case on the ground that the judgment-debtor
had promised to satisfy the decree. The decree, how-
ever, remaining unsatisfied, the judgment-creditor,
on the 12th July 1870, presented a second apphca-
tion for execution. The Subordinate Ju(ige reject-
ed it as barred under s. 20 of Act XIV of 1859, as
it was beyond three years from the 26th June 1867,
the date of the previous apphcation. On appeal the
District Judge confirmed the order. On special
appeal the High Court reversed the orders of both
the lower Courts and held the proceedings to have
commenced on the 26th June 1867, and continued
till the 13th July 1867, on which day the judg-
ment-debtor was to show cause, and up to which
day therefore the judgment-creditor must be con-
sidered as going on with one and the same proceed-
ing, as the first Court actually made an order for a
warrant to issue on that day. Damodhar Lakhmi-
DAS V. GuLABDAS Lalchai . 9 Bom. 254

15.

Decree remaining

under attachment. The period during which a de-
cree remains under attachment should not be de-
ducted from the time within which proceedings
must be taken for the execution of the decree.
Chandi Prasad Nandi v. Rayhunaih Dhar, 3 B. L. R.
Ap. -52, dissented from. Az.muddin v. MATnuRADAS

GOVARDHANDAS GULABDAS . 11 Bom. 206

16. — Application for

execution, of decree — Continuing proceedings. A
decree-holder appUed for execution on the 10th of
October 1871. On the 24th of February 1872 he
made an apphcation to the Court executing the
decree that the case should be taken off the file for
the present, but that the attachment which had
been issued should be kept in force. The apphca-
tion was granted, but the formal order, as drawn up,
though it recited the apphcation, was merely to take
the case off the file. On the 6th of February 1875
the decree-holder applied for further execution. It
was objected that execution of the decree was
barred by limitation, but it was hdd that limitation
did not apply, as the petition was for the continu-
ance of the suspended proceedings and not for fresh
execution. Golami Sahu v. Chutter Biioo.t
P-'^'-ucK . . . . 3 C. L. R. 261

1 ' • _ Application for

erecuticn of decree — Reversal of snle in execution.. A
obtained a decree against B on the 21st of June

LIMITATIOK" ACT (XV OF 1877)— con,

Schedule II — co7itd.
Art. 179— contd.

2. PERIOD FROM WHICH UMITATIs'

IIVNS— contd.

{b) Continuous Proceedings — contd.
1871, and apphed for execution on the 10th of J}/
following. (3n the 2nd of October of the same ju
property attached under such execution was ,.d
and the sale proceedings being paid over to A,\e
execution-proceedin2;s were struck off the file onie
28th of July 1872. On the 14th of May 1873 Ob-
tained an order setting aside the sale and for re id
of the sale-proceeds. A thereupon, on the 22nol
December 1874, again apphed to execute his dece:
— Held, that such apphcation was in substance le
simply to continue the proceedings already se )n
foot by the first application for execution, and tlre^
fore the right to execute the decree was not baed
by the law of hmitation. Issubree Dasse v.
Abdooi. Khalak

I. Ii. R. 4 Calc. 415 : 3 C. L. Eie

18.

Execution o de-

cree— Proceedings to enforce decree. Held, by a ul
Bench (Pearson, J., dissenting),that an applic;.oii
to execute a decree against judgment-debtor'sro-
perty, made more than three years after thcast
application for execution, was not barred by lijta-
tion under Art. 167, Sch. II, Act IX of 1871, ler
the last application was interrupted by a succc f ul
objector against whom the decree-holder h( t€
bring a regular suit and succeeded in obtain? a
decree ; and that the renewed application to ex ute
within three years from the date of the decree i the
said suit was not a fresh apphcation for exec. lOU
against the judgment-debtor, but a continuari oi
revival of the previous apphcation interrupt*! bj
the objector. Per Pearson, J. {contra), that sdei
Art. 167, Sch. II, Act IX of 1871, executii ol
decree was barred. Paras Ra:\i v. Gabdne

I. L. R. 1 A1135S

19_ Continual^' o\

previous application. In June 1892, an appli tioE
was made for execution of a decree, and i ""
dismissed, the applicant being relegated to
to estabhsh his right. He did not sue, '
September 1892 he put in a fresh apphcat t'
execute, which was dismissed. He then suej and
in March 1895 a decree was passed in his favo He
now put in a petition in October 1895, prayii
his petition of September 1892 be revived or
nued. Held, that the petition was a fresh a
tion and not a continuation of the former pi
ings, and that it was barred by hmitation.
yanarayana Pandarathab r. Gurunada __
I. L. B. 2lMa('io'

20. - Execution' ayeo

by reason of iiijunction for more than three prs~-
Revival of previous application. A decree -hoj^^'
execution of his decree, attached a decree iwoj
his judgment-debtor. On the 3rd of July l»' ■"

( 7493 )

DIGEST OF CASES.

( 7494 )

LIMITATION ACT (XV OF 1871)— contd.
Schedule II — contd.

-Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION

RUNS— contd.

(6) Continuous Proceedings — cantd.

decree-holder applied for execution of his decree
by enforcement of the second decree, and in pur-
suance of this appHcation obtained attachment of
, certain property as belonging to the judgment-
debtor under the second decrc^e. Subsequently a
suit was filed by the son of such judgment-debtor
'.aiming the property as his own, and in that suit an
injunction was granted staying execution under the
application of the 3rd of July 1888, until the suit
was decided. The application for execution was
meanwhile struck oiJ, but the attachment was main-
tained. On the 19th of March 1892 the suit was
dismissed, and the injunction came to an end. On
the 29th of October 1892 a fresh application was
,nade for execution: — Held, that this second appli-
;ation was not barred by Hmitation, but was to be
•cgarded as an application to renew the proceedings
liommenced by the former appHcation, which had
Dcen suspended by the act of the Court, and not by
.nything for which the decree-holder was re-
iponsible. Peary Mohan Chowdry v. Romesh
I^Awnder Nundy, I. L. R. 1-5 Calc. 371 ; Kalyanbhai
Oipchand v. Ghanashatulal Jadunathji, I. L. R.
' Bom. 29 ; and Paras Ram v. Gardner, I. L. R.
'' All. 355, referred to. Lakhmi Chand v. Ballam
'^ . . . . I. li. R. 17 All. 425

1 21. — Resistance and

Ibstructian to execution of decree — Suit under s. 331
J Civil Procedure Code, 1SS2, to remove obstruction-
jWure 0/ such suit—Suhscqtiently application for
irecirfion o/ original decree. On the 7th March
1589, a decree-holder presented a darkast for execu-
,on of a decree which awarded him possession
E certam immoveable property. This darkhast
|«8 opposed by a third party, who was in posses-
ion of the property. The decree-holder thereupon
|PP'^a to the Court to have the obstruction re-
eved. This application was registered under s.
1 of the Code of Civil Procedure (Act XIV of
)W-), as a smt bctsveen the decree-holder as plaint-
and the party who offered the obstruction as a
itendant. On the 22nd January 1891, the decree-

3fkl T)^^^\ *^'' ^^"^'' ^"^t- Thereupon his

trkhast of the 7th March 1889 was struck off the

' yn the 12th November 1892, he presented a

"U clarkhast for execution -.—Held, that the

"'1 aarkhnst was barred by limitation. The

--nokler having failed to remove the obstruc-

under s. 331 of the Code of Civil Procedure,

cond darkhast could not be treated as a con-

ai "^ ''i^V^''^ "^ ^^^ first. Kalyanbhai v.

.fH^'/'r^J^- ^ ^°'"- ~^' ^ndChinlaman

It^'l^ /. L. R. 19 Bom. 294, distinguished.

•'\RA.M Chintaman v. Sarasvatibat "

I. L. R. 20 Bom. 175

LIMIT ATION ACT (XV OF 1877)— cortfci .
Schedule II — conld.

Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION

RUNS— co«W.

(fc) Continuous Proceedings — contd.

22. 1 Suit to set aside

an order i7i a claim-case — Continuation of previous
application. Opon an appHcation for execution,
dated the 13th March 1891, the judgment-debtor's
property having been attached, a claim was pre-
ferred by a third party and allowed. The decree-
holder brought a suit for a declaration that the
property belonged to the judgment-debtor, and the
suit was decreed. The decree-holder thereupon
made an appHcation for execution on the 16th July
1894, more than three years after his previous
appHcation : — Held, that the order in the claim-case
operated as a temporary bar to the execution-pro-
ceedings, and it was not until the removal of that
bar by a suit which the decree-holder was compelled
to institute that he was placed in a position to pro-
ceed with the execution. The present application,
made subsequently to the removal Qfc.the bar
should be treated as a continuation of tne previous
appHcation which was admittedly in time ; and
the execution was not barred by limitation. Raghu-
nandun Pershad v. Bhugoo Lull, I. L. R. 17 Calc.
2^8, distinguished. Pyaroo Tuhobildarinee v. Nazir
Hos-sein, 23 W. R. 1S3 ; Paras Ram v. Gardner,
I. L. R. 1 All. 355 ; and Kalyanbhai Dipchand v.
Ghanshamlal Jadunathji, I. L. R. 5 Bom. 29,
referred to. Rudra Narain Guria v. Pachu
Maity . . . I. L. R. 23 Calc. 437

23.

Decree for posses-

sion with mesne profits till delivery of possession —
Darkhast for execution — Obstruction in execution
— Application for removal of obstruction registered
as a suit — Disposal of the -iarkhast. The plaintiffs,
having obtained a decree for possession of certain
landswith mesne profits till deHvery of possession,
appHed for execution. An obstruction having been
caused to the execution, plaintiffs appHed for the re-
moval of the obstruction, and their appHcation was
re<Tistercd as a suit under s. 331 of the Civil Proce-
dure Code (Act XIV of 1882), and their darkha.st for
execution was disposed of by the Court. The suit
was decided in plaintiffs' favour, and they having
appHed for execution, it was contended that the
appHcation was time-barred, as it was presented
after the expiration of three years from the time of
the disposal of the original darkhast, and it was
wrong to grant mesne profits for more than three
years" from the date of the decree, though— posses-
sion was not deHvered during that period -.—Held,
that, when Htication under s. 331 of the Civil Pro-
cedure Code (Act XIV of 1882) is pencHng, the pro-
ceedings in execution are suspended during that
Htigation ; the appHcation therefore was not barred
but was to be considered as a renewal of the former
appHcation before the obstruction to execution took
place. Narayan Govind Manik v. Sono Sadasuiv
^ I. L. R. 24 Bom. 345

11 F 2

( 7495 )

DIGEST OF CASES.

{ 7496 )

IiIMITATION ACT (XV OF 1817)— contd.
Schedule II — contd.

2. PERIOD

Art. 179— contd.

FROM WHICH

RUNS— cow<<i!.

LIMITATION

(6) CoNTixiJOus Proceedings — contd.

24. Application for

execution of decree — Revival — Dekkan Agriculturists'
Relief Act, 1879 and JS81, s. JS. On 20111 July 1871
the plaintiffs obtained a decree against the defend-
ants for the sum of R4,083 and fur the sale of
their mortgaged property. On the IGth July 1877
the plaintiffs apphed for execution. The applica-
tion was granted, the property was attached, and
the sale was fixed for the 30th November 1878. On
the 18th November 1878 one of the defendants
a])plied for a postponement of the sale until harvest
time, when he said he would pay the amount of
decree. The sale was accordingly, with the plaint-
iffs' consent, postponed to the 31st May 1879. On
the ] 3th June 1879 the plaintiffs informed the Court
that negotiations were proceeding between them-
selves and the defendants for the settlement of the
decree, and prayed that their apphcation of the
16th July 1877 might be struck off ; adding that, if
the negotiations failed, they would present a fresh
application. The negotiations for settlement proved
abortive, and the case being one to which the Dek-
kan Agriculturists' Rehef Act (XVII of 1879) ap-
phed, the plaintiffs took steps to obtain a concilia-
tor's certificate. These proceedings occupied the
p-riod from 3rd July 1880 to the 9th January 1881.
The certificate was granted on the 1st December
1881. On the 13th December 1881, more than three
years after the date of the previous application, viz.,
16th July 1877, the plaintiffs made the present ap-
plication for execution. The defendants contended
that it was barred by limitation : — Held, that the
application was not barred. As it was understood
between the parties, when the application of the
16th July 1877 was struck off on the 13th June
1879, that, if negotiations failed, a fresh apphcation
should be presented, the application of the 13th
December 1881 was to be regarded as an apphca-
tion for the revival of the old execution-proceedings.
But, in any case, the apphcation, by the defendant,
of the 18th November 1877, for a postponement of
the sale of his property when he promised to pay
the amount of the decree, was an admission of the
plaintiff's right to execute the decree within the
contemplation of s. 19 of the Limitation Act (XV of
1877), and created a new period of limitation, which
would ordinarily have expired on the 18th Novem-
ber 1881. As, however by the provisions of the
Dekkan Agriculturists' Rehef Act the period during
which the conciliator was endeavouring to effect
an amicable settlement— I'ir., from 8th" July 1880
to 1st December 1881 — would have to be deducted,
the present apphcation was within time. Venkat-
EAV Bapu v. Bijesino Vithalsing

I. L. B. 10 Bom. 108

25. . Civil Procedure

Code, s. 583 — Execution of decree — Decree enforcing

LIMITATIOlSr ACT (XV OF 1877)-contd
Schedule II -contd.

Art. l79~conid.

2. PERIOD FROM WHICH LIMITATK

RUNS— cowia.

(6) CoxTiNtrous Proceedings— confd.
the right of pre-emption — Non-payment of purchu-
money decreed hy Appellate Court — Restitutio^:
purchase-money paid under loicer Court's decre-
Application for restitution — Revival of applicatr,.
A decree for pre-emption was passed conditii'
ally upon payment by the decree-holder of El,])
and in July 1880 the plaintiff paid this amount (
Court and it was drawn out by the defendant]
August 1881. Meanwhile, in July 1881, the I;l
Court in second appeal raised the amount to be ic
by the plaintiff to "R2,400 but the plaintiff allo>c
the time limited for payment of the excess differ Cf
to elapse without paying it, and the decree for 'e
emptiou thereupon became dead. In May li3
the plaintiff apphed in the execution departrnt
for the refund of the deposit which had been divn
and retained by the defendant. This applic;or
was granted, and the defendant ordered to -ref id
and this order was confirmed on appeal in Jainrj
1885, and by the High Court in second appe ic
May 1885. Meanwhile the first Court had us-
pended execution of the order pending the lult
of the appeal, and in December 1884 remove the
application temporarily from the " pending 'ist
In February 1885, the plaintiff applied for rcitU'
tion of the amount deposited, asking for auch'
ment and sale of property belonging to the d(!nd'
ant. This application was dismissed as bred
by limitation : — Held, that this apphcation wa)nlj
a revival of the apphcation of Jlay 1883 whic was
within time. Heid, also, that the plaintiff w;, in
the sense of s. 583 of the Civil Procedure ^de,
' ' a party entitled to a benefit by way of resti tion
under the decree ' ' of the High Court of July "sSl ;
that it was a necessary incident of that decr<|that
he was entitled to restitution of the sum wlh he
had paid as the sufficient price under the dece oi
the lower Appellate Court ; that he was coir|-tent
under s. 583 to move the local Court to exec,t? the
appellate decree in this respect in his favou' ac-
cording to the rules prescribed for the execionoi
decree^in suits ;" that he did this in May 188- y an
application made according to law in the Voper
Court in the sense of Art. 179 of the Lination
Act ; and that his present application to tl same
effect being within three years from that s'olica-
tion, was' within time. Nand Ram v. Sit.P^am
I. L. B. 8 A 545

{Contra), Kurupam Zaaiinder v. Sadash

I. L. B. 10 Kd- 00

Harish Chandra Shaha r. Chandra Iohax
Dass .... I. L. B. 28 C^:;. 109

26. — Applies ''^ /^

execution of -^decree— Step in aid of execviion^ f"^"
K as the legal representative of her deceaid nus-

( 7497 )

DIGEST OF CASES.

( 7498 )

LIMITATION ACT (XV OF 1871)— contd.

Schedule II — contd.
Art. IIQ— contd.

2. PERIOD FROM WHICH LIMITATION

RVNS—cotiid.

(b) CoNTiyuous Proceedings — contd.
band, S,on a bond executed by S in his favour'and
ibtained a decree. Subsequently he sued K on a
)ond which she had personally executed in his
avour, and obtained a decree. On the 7th Sep-
ember 1875 he apphed for execution of both these
lecrees, and S's landed estate, which stood recorded
1 K's name, was attached. This estate was sold
> the 20th February 1877, being put up for sale in
me lot in satisfaction of both decrees, in accord-
nce with an application made by G on the 16th
i'ebniary, and was purchased by G for the amount
{ the decrees. This sale was subsequently con-
Tmed, and on the 10th December 1877, satisfaction
'f the decrees was entered up, and the execution-
proceedings struck ofF the file. Subsequently three
t the heirs of S in one case, and two in another,
.istituted suits against G claiming to recover from
im such portion of the proceeds of the sale of S's
. roperty as had been appropriated to the discharge
;f O'a decree against jS', and such heirs obtained
lecrees for certain sums, which G was obhged to
»y. G thereupon, on the 16th May 1S79, applied
jT execution of his decree against 5 .• — Held, that
(ich application was not oxie in continuation of
iiat made on the 7th September 1875, but was a
teah apphcation, and the application made by G on
(le 16th February 1877 was not one for a step in aid
(; execution within the meaning of Art. 179, Sch.
i- of Act XV of 1877, from which limitation could
(5 computed, and the apphcation of the 18th May
^579 was barred by limitation. Pijaroo Tuhobilda-
|»e< V. Nazir Hossein, 23 W. R. 183 ; Paras Ram
\ Crardner, I. L. R. 1 All. 3')5 ; and Issurree
\<usee V. Abdul Khalak, I. L. R. 4 Gale, flo,
(Stinguished bv Straight, ,/. Khair-un-niss\ v.
jiTOi Shankar . . I. L. R. 3 AIL 484

\^' — Futile attach-

jMii of property — Sidjsequent application for arrest.
I 1874 the appellant attached certain immove-
I'le property of his judgment-debtor, the respon-
jnt. The attachment was disputed, and ulti-
at«ly, on the 16th July 1875, was raised. In the
jiae year the appellant brought a suit fora declara-
m that the property in question was hable to at-
ehment which was finally rejected on the 8th
ly 1880. On the 30th November following, the
pellant applied for the arrest of the respondent.
i« lower Court rejected the application as not
ing made within three vears of the decree, as
' ed by Act XV of 1877, Sch. H, Art. 179. On
•1 to the High Comt :— ^eW,that the execution
-s last applied for was distinct in its nature
jm, and m no way a continuance or revival of,
j> previous proceedings in execution, and was
;'retore made too late, more than three years

LIMITATION ACT (XV OF IQll)— contd.

Schedule 11— contd.
Art. 119— contd.

2. PERIOD FROM WHICH LIMITATION
RUNS— con/rf.

{b) Co.NTiNuoLS Proceedinos— rori/c/.
having elapsed since the passing of the de;ree.
Keishnaji Raghunath v. Anandrav Ballal
KoLHALKAR . . . I. L. R. 7 Bom. 293

28. _ . Application for

execution of a different nature from preceding appli-
cation. A decree-holder in execution of his decree
applied, on the Uth January 1888, for arrest of the
judgment-debtor. On the "25th February 1888, in
consequence of the record of the case being required
in the High Court, the Court executing the decree
struck off that apphcation suo rnotu. On the 23rd
February 1892 the decree-holder again applied for
execution of his decree,but this time b\' attachnent
and sale of the judgment-debtor's propertv : — H<ld.
that the second apphcation could nc t be regarded
as a continuance of the former applicati( n, aid that
execution of the decree was time- barred. Krix/.ji'iii
Raghunath Kothuvle v. Anandrav Billnl Kolhalkar,
I. L. R. 7 Bom. 293, followed. Har SARtp r.
Balgobind . . . . I. L. R. 18 All. 9

29. Application for

execution of decree. On the 16th September 1879
A, in execution of a decree against V, applied for
attachment and sale of certain land and on the 8th
of January 1880 the sale was confirmed. The pur-
chaser, having learnt that V had no title to the
land, brought a suit and obtained a decree cancel-
ling the sale on the 2nd April 1881, and on the 2nd
of November 1881 obtained an order for restitution
of the purchase-money, which was thereupon paid
to him by A. On the 2nd March 1883, A applied
for execution of the decree by arrest of V. Held,
that this apjJication was barred by hmitation.
Khair-unnissa v. Gauri Shankar, I. L. R. 3 All.
484, followed. Paras Ram y. Gardner, I. L. R. 1
All. 355, distinguished. Virasami r. Athi

I. L. R. 7 Mad. 595

30.

Application for

execution of decree — Decree for possession upcm pay-
ment of mortgage amount and value of improvements
— Final decree on ascertaining value of improvements.
In a decree for redemption of a Malabar kanam
(mortgage), it was ordered on the 12th December
1879 that the defendants shouKl put the plaintiff in
possession of the land upon payment by plaintiti to
defendant No. 1 of the mortgage amount, and of the
value of improvements, to be determined in execu-
tion, to such of the defendants as should be found
entitled. On the 12th August 1880 the plaintiff
applied for execution, and on the 23rd September
1881 an order was passed that execution should
issue on payment into Court by the plaintiff of the
mortgage amount and the value of improvements
which had then been ascertained. The plaintiff hav-
ing failed to deposit the said amount, the apphca -

( 7499 )

DIGEST OF OASES.

I 7500 )

IjIMITATION (ACT XV OF 1811)— contd.

[Schedule II — contd.
■ Art. 119— contd.

2. PERIOD

FROM WHICH
RUNS— conid.

LIMITATION

(6) CoMTiNUOtrs Proceedings— conid.
tion for execution was struck off the file on the 10th
November 1881. On the 8th December 1883, the
plaintiff applied again for execution and objection
was taken that the application was barred by
limitation : — Hdd, that the application was not
barred by limitation. Dildar Hossein v. Mujeedun-
nissa. I. L. B. 4 Calc. 629, approved. Krishnan
V. Nii-AKANDAN . . I. L. K. 8 Mad. 137

31. . Execution of de-
cree— Arrears of rent. Decree for — Beng. Act VIII
of 1869, s. 5S — Application for execution — Sus-
pended proceedings, effect of. G obtained an ex
parte decree in 1882 for a sum less than R.WO as
arrears of rent. Execution was taken out on the
19th May 1885. On the 28th June C the judgment-
debtor, appUed to have the decree set aside, where-
upon the application for execution was struck off.
On the 21st November C"s application for a re-
hearing was rejected. On the 3rd February 1886
G applied for the execution of his decree: — Hdd,
that the decree-holder was entitled to execution, the
application of the 3rd February being a continua-
tion of the proceedings commenced on the 19th
May, which had been suspended by the order of the
Court of the 20th June. Chandra Prodhan v.
Gopi Mohun Siiaha . I. L. B. 14 Calc. 385

Chandra Kant Bannerjee v. Surji Kanto Rai
Chowdhury . I. L. R. 14 Calc. 387 note

32. Decree — Execu-
tion— Attachment set aside — Time occiij}ied in suing
to declare property liable to attachment not excluded
from computation. An application for execution
of a decree having been made in 1880, certain land
was attached as being the property of the judgment-
debtor (deceased). His children thereupon claimed
the land, and the attachment was raised. Upon
this, the judgment-creditor sued to estabhsh his
right to sell the land in execution and obtained a de-
cree in 1882, which was confirmed on appeal in 1883.
In 1885 the judgment-creditor again applied for
attachment and sale of the same land : —Held, that
the application was barred by Hmitation. Basant
Lai V. Batul Bihi,I. L. R. 6 All. 23, dissented from.
Narayana v. Pappi Brahmani

I. L. R. 10 Mad. 22

33.

^Darkhasf present-

ed in 1890, in legal continuance of a darkhast of 1SS2
— Obstruction to execution of decree for partition.
A darkhast is not necessarily cancelled by being
taken off the file. Its effect must be determined by
the special circumstances of each case. A obtained
a decree for partition in 1881, and on the
11th March 1882 presented a darkhast for com-
I)lete execution of the decree. Having attempted to
take possession of a moiety of a house to which he

I.IMITATIOK" ACT (XV OF 1877)-

Schedule II — contd.
_ Art. VjQ—conid.

PERIOD

FROM WHICH

RUNS— co«<c/.

LIMITATIC

(b) Continuous Proceedings — concld.
was entitled under the decree, he was obstructed
S, and it became necessary for him to file an ejei
ment suit against 8 before proceeding further wi
the execution of his partition decree. In Augi
1885 a second appe.il iti this ejectment suit was pei •
ing in the High Court, and A, ia the 1st Aug';
1885, obtained an order in the execution-matti,
which recited the fact of the second appeal, < I
that J desired that the darkhast should "for a
present be cancelled," and ordered that " furt'r
execution be stopped." Other htigation betwa
A and S took place, which was finally closed on e
31st October 1889. On the 3rd January 1^;),
A presented a darkhast for the execution of e
decree of 1881. It was contended that execu<n
was barred, and that the order of 1st August 1.5
had cancelled the darkhast of 11th March l!^.
Held, that the present application was not bar'l,
the darkhast being in legal continuance of the (f-
khast of 1882. Chintaman Damodar Aga'sh:!).
Balshastri . . I. L. R. 16 Bom. :i4

34.

Applicatim,or

execution — Non-payment of process fees — Pendcij
of appeal — Stay of execution. The present a li-
cation for execution of decree was made on the th
June 1897. The previous application had ten
made on the 24th January 1893. On the 29th ^y
following, the decree-holder put in the costs o:ihe
auction sale, and the sale proclamation was orcled
to be published, fixing the 17th July as the datjof
sale. On the 19th May, one of the judgment -de ors
made objection to the execution of the decreeion
the 3rd June 1893, the objections were disallo"! ;
; on the 20th June, the objector preferred an .i '
I to the High Court, and, on the 4th July, thr
ordered that the records be sent up to the
Court, and that the proceedings be adjourn.'
die. The appeal to the High Court was di*'i
on the 19th of June 1894, and, on the 6th S.
ber 1894, the Court ordered that, the records
case having been received back, the decree!
do put in costs for service of fresh sale proclaiu
and that the case be put up on the 14th Sept
next following, when the following order was j
" fees not having been paid, the case is dispoi- '"■
The attachment shall continue." Z^eW, thij the
present application for execution was barrj by
limitation, and could not be looked upon as Pon-
tinuation of the old proceedings. DhuBAM
Srimani v. Jogendra Chunper Sen (1900) !

5 C. W. I^^7

35.

hhich

limitation rims. The words "judgment, 'cree,

( 7501 )

DIGEST OF CASES.

( 7502 )

IMITATION ACT (XV OF 1877)— cowf^L
Schedule 11— contd.

Art. 119— contd.

LIMITATION

PERIOD FROM WHICH
RUNS— coHfrf.

'■) Where there has beek an Appeal — eoyiid.

order " in s. 20 meant a judgment, decree, or

(ler which could be enforced by execution.

,1PR0 Doss GOSSAIN V. ChUNDER SiKlTR Bhutta-

1ABJ3E . . .BLR Sup. Vol. 718
2 Ind. Jur. N. S. 248 : 7 W. R. 521

The three years' limitation prescribed by s. 20,
XIV of 1859, counted from the date of the final
cree of the Appellate Court, in a case in which
■s judgment-debtor had appealed against the ori-
lal decree. Hurree Bungsho Banerjee v.
liMESSUR Baner.iee . 6 W. R. Mis. 38

Shami Maho.med t'. ^Mahomed Ali Khan

2 B. L. R. Ap. 22 : 11 W. R. 67

'Grish Chfnder Banerjee v. Bhanoo Motee
OWDHRAIN . . . 11 W. R. 329

,VIahomed Busseeroollah v. Ram Kant Chow-

;RY 16W. R. 266

IBuLDEO V. Guj Singh 1 H . W. Ed. 1873, 240

^■•"vided (as was held under Act XIV of 1859) the
holder had opposed the appeal. Bukronath

KRBCTTY V. NiLMONEE SiNGH DeO

18 W. R. 7

, )Um Ruttun Banerjee v. Ameeroolmolk Bun-
^IREE GoEiND . . . 6 W. R. Mis. 95

|V here the appeal was dismissed for default, it was
f\l the order was not a new decree from which
Ijitation began again to run. Virasamy Mudali
tj'UsoMMANYAMMAL . . 4 Mad. 32

iSipRO Doss Gossain v. Chunder Sikur Bhutta"
<JBJBE . . . B. L. R. Sup. Vol. 718 :
] 2 Ind. Jur. N. S. 248 : 7 W. R. 521

j'^nder the present Act, it expressly counts from
t| date of the order made on appeal, which is in
ai:)rdance with the cases of Aruna Chella
J|:t)avan v. Veludayan . . 5 Mad. 215

Madhavrav Ramrav
5 Bom. A. C. 214

* Bapurav Krishn.

e.
Htitii

Period from which

runs. Where a contest is raised be-
*ien a decree-holder and judgment-debtor

, — ^ as to

•Y|ce of notice, execution proceedings cannot be
c. led on further till the question i.s decided, and
' tation m respect to future proceedings must run
"1 the date of such decision. Suroov Chunder
GoLucK Chunder Dhur . 14 W. R. 477

'■ ; — Final d(ci>i>n of

>^ 'f twiere proceedings are contested. So long as an
» |al contest is going on between a decree-holder
"judgment-debtor as to the judgment, limitation

t be computed from the final decision of the

LIMITATION ACT (XV OF iQll)— contd.

Schedule II — con'a.

Art. 179— coH/fZ.

2. PERIOD FROM WHICH LIMITATION
RUNS— cow<(Z.

5 B. L. R. 611 : 14 W. R. P. C. 21

13 Moo. 1. A. 479

Chotay Lal v. Ram Dyal 2 N. W. 482

Modhoosoodun Mooker-jee v. Kirtee Chun-
der Ghose . . . 18 W. R. 7

38. Date of final de-
cree. A suit was dismissed with costs in a Court of
Small Causes, after which an application for a new
trial was rejected, and subsequently another appli-
cation was made for a new trial and referred by the
Judge to the High Court, the result being the re-
jection of the .application. After this, defendant
applied for execution for the costs : — Held, that the
decree became final and conclusive when the Judge
rejected the last application in accordance with the
decision of the High Court, limitation beginning to
run from the date of such rejection. Pran Kisto
Banerjee v. Nuzimooddeen . 9 W. R. 397

39. Decree of SmaV

Cau6e Court. Where a Court of Small Causes de-
livered final judgment and decree on the whole
matter in disijute, and more than a year, but less
than three years, had elapsed from the date of the
decree without any proceeding having been taken
upon it:— Held, that s. 20, Act XIV of 1859, applied
and not s. 22, and that the plaintiff's application
for a warrant in execution of the decree was not
barred by lap.sc of time. Punchanada Chetti v.
Raman Chetti ... 1 Mad. 446

40. Application for

execution recognizing decree on appeal. An appli-
cation for execution of the decree in the original suit
and proceedings thereon, which, without formally
and expressly asking for execution of the decrees in
regular and special appeal, recognized those decrees
and soiight relief consistent with the final decree,
can be judicially recognized as a proceeding for the
purpose of executing the final decree. Azmuddin v.

MATHUR,iDAS GOVARDHANDAS GULABDAS

11 Bom. 206

41. ■■ — Application for

execution of decree. A decree was passed in June
1851. Application was made for execution on the
21st July 1861, and from that date applications were
made at various intervals, each less than three years,
up to 1868. Upon different grounds all the applica-
tions were rejected, but the last order was reversed
on appeal by the Civil Judge : — Held, that the last
application was not barred by the Limitation Act.
Karuppanan v. Muthuknan Servey 5 Mad. 105

42. Execution of de-
cree. The words " where there has been an appeal"
incl. 2, Art. 167of Sch. II of ActlXof 1871,contem.

( 7503 )

DIGEST OF CASES.

( 7504 )

IiIMITATIOlS" ACT (XV OF 1877)— comti.

Schedule 11— contd.
Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION

RUNS— coTifc?.

(c) Where there has bees an Appeal — confd-
plate and mean an appeal from the decree, and do
not include an appeal from an order dismissing an
application to set aside a decree under s. 119 of Act
VIII of 1859. Sheo Prasad v. Anrudh Sinoh.
I. L. R. 2 All. 273

43. _ Execution of

decree — " Where there has been an appeal." The
words ' ' where there has been an appeal ' ' in cl. 2,

LIMITATION ACT (XV OF l871)~conld

Schedule II — contd.
Art. 179— contd.

Art. 179 of Sch. II of Act XV of 1S77, do not con-
template and mean only an appeal from the decree
of which execution is sought, but include, where
there has been a review of the judgment on which
such decree is based, and an appeal from the decree
passed on such review, such appeal : — Held, there-
fore, where there had been a review of judgment,
and an appeal from the decree passed on review, and
such decree having been set aside by the Appellate
Court, application was made for execution of the
origmal decree, that time began to run, not from the
date of that decree, but from the date of the decree
of the Appellate Court. Sheo Prasad v. Anrudh
Singh, I. L. R. 2 All. 273, distinguished. Narsingh
Sewak Singh v. Madho Das I. L. E. 4 All. 274

44. . Presentation of

appeal— Civil Procedure Code {Act XIV of 1SS2),
s. 541 — Execution of decree. The words " appeal
presented " in the Limitation Act, 1877, mean an
appeal presented in the manner prescribed in s. 541
of the Code of Civil Procedure. The words ' ' where
there has been an appeal," in Art. 179, cl. 2, of Sch.
II of the Limitation Act, 1877, mean where a memo-
randum of appeal has been presented in Court. In
execution of a decree against which an appeal has
been presented, but rejected on the ground that it
was after time, limitation begins to run from the
date of the final decree or order of the Appellate
Court. Akshoy Kumar Ntjndi v. Chundee
MoHUN Chathati . I. L. R- 16 Calc. 250

45. 1 Application for

execution of decree for refund of costs — Proceedings to
determine whether exemption from costs was per-
sonal or in representative character. On an appli-
cation for refund of money deposited as costs, which
was alleged to be barred by limitation : — Held, that,
as litigation was protracted between the parties for
many years, and the question of liability for costs re-
mained unsettled all that tiine, limitation would run
not from the date of the original order entitling appli-
cant to a refund, but from the date of the conclusion
of the proceedings in the final appeal. Mullick
Mahomed iY^KOOB v. Chowdhry Shaikh Zunoo-
RUL HuQ . . . 25 W. R. 309

46. Date of final de-
cree. A obtained a joint and several money-decrees
against four defendants on the 12th November 1872.

2. PERIOD FROM WHICH LIMITATK

RUNS— conW.

(c) Where there has been an Appeal — con^
One of the defendants preferred an appeal, and 1i
decree as against him was set aside by the H: i
Court on the 19th February 1875. Subsequent,
on the 1st of August 1876, A sued out execut i
against the three defendants who had not appeaU :
— Held, that A's suit was not barred by limitati-.
as the final decree in the original suit ^vithin 9
meaning of Art. 167 of Act IX of 1871 was e
decree as amended by the High Court on the la
of February 1875. Gungamoyee Dassel v. S b

SUNKTTR f.HUTTACHARJEE . 3 C. L. R. 4)

47.

Execution oje-

cree — Final decree of Appellate Court. The Muif
gave the plaintiffs in a suit for possession of Id
and for mesne i^rofits a decree for possession, but 3-
missed the claim for mesne profits. An appeal is
preferred to the Judge, who afiirmed the decree )r
possession and remanded the case to the Mu i,
under s. 351 of Act VIII of 1859, to determine le
mesne profits due to the plaintiffs. The Muif
gave the plaintiffs a decree for certain mesne prcs.
Subsequently a special appeal was preferred tctie
High (3ourt against the Judge's decree. While lis
was pending, an appeal was preferred to the J'ge
against the decree of the Mun-if for mesne prts,
and on the 7th June 1873 the plaintiff agaii'b-
tained a decree for mesne profits. Finally, oi he
6th March 1874, the High Court modified he
Judge's decree for possession, but did not inteire
with the order of remand. Held, on the plat-Us
applying for execution of the Judge's decree, c ed
7th June 1S73, that the limitation for the exectoa
of such decree ran, not from the date of such d( ee,
but from the date of the High Court 's decree, \ ich
was the ' ' final decree of the Appellate Court, ' >ii<i
the only " final decree," within the meani! of
Art. 167, Sch. II of Act IX of 1871. ImamAu
v. Dasaundhi Ram . . I. L. R. lAllOo

48. Executio; of

joint decree against two or more defendants, ji *
suit for possession of lana brought by A a;' n«t
B, C, and D a decree v,as passed on the
of April 1874 for possession and costs a
B, C, and D jointly. This decree was
wards reversed on an appeal by B, who
claimed the property. A then preferred a ^
appeal to the High Court, and on the
June 1877 the decision of the Judge w; '<;-
versed, and the decree of the Court of first in mce
restored. On the 30th December 1878 A app-^l ^
the Court of first instance for execution tc-^ue
against C and D for the costs specified in the eree
passed on the 14th April 1874. C and D si^esa-
fully objected in the Court of first instance ar tne
lower Appellate Court that, more than three 'jars
having elapsed since the date of the decree, '- <i^*

( 7505 )

DIGEST OF CASES.

( 7506 )

LIMITATION ACT (XV of l8^^)—con^d.

Schedule 11— contd.

Art. 179— contd.

:. PERIOD FROM WHICH; LIMITATION
RUNS— co?(<<i.

c) Where there has been an Appeal — contd.
ree for costs could not be executed, the application
or execution beins barred by Art. 179 of Sch. II
i Act XV of 1877 -.—Held, on appeal to the High
;;ourt, that, inasmuch as B's appeal had related to
he whole case, and the decree obtained by him dis-
nisaing the suit would, if not reversed, have de-
rived A of his right to any costs at all, A, upon
, jceeding in getting the original decree restored
ipon special appeal to the High Court, was en-
itled to execute such restored decree at any time
vithin three years of the order of the High Court.
iIuLUCK Ahmed Zumma alias 'J'etur v. Mahomed
lYKD . I. L. E. 6 Calc. 194 : 6 C. L. R. 573

49. " Appellate

^ourt " — Execution of decree. The meaning of
)ara. 2 to Art. 1 79 of the second Schedule of Act XV
■f 1877 is, that where there has been an appeal, the
leriod of limitation is to run from the date when the
burt to which that appeal has been preferred
•asses an order disposing of the appeal. The
rords " Appellate Court" signify the Court or
A)urts to which the appeal, mentioned in the article,
las been preferred. Wazik Mahton r. Lulit
liNGH . . . . I. L. E. 9 Calc. 100

50.

Execution of de-

ree — Rejection of appeal as not being properly
tamped — " Where there has been an appeal, etc."
\Tiere an apphcation for appeal was presented to
he High Court, but rejected owing to the memo-
'andum of appeal being insufficiently stamped: —
ield, that, under such circumstances, there had not
jieen an appeal or a final decree or order of an
JVppellate Court within the meaning of Art. 179
(2) of the Limitation Act, so as to give a period
jTom which limitation for execution of the decree
(ippealed from could run. Dianat-x:llah Beg v.
Vajid Ali Shah . I. L. R. 6 All. 438

51. — _ Startimj point lor

Iimi7o/.oo uhere an appeal has abated. Held, that

he order of an Appellate Court abating an appeal,
pecause no representative of the appellant was on
i he record, was not the ' ' final order or decree of the
j^ppellate Court " within the meaning of cl. 2, Art.

79, Sch. II to the Indian Limitation Act, 1877, but
that limitation would run from the date of the ori-
i;inal decree. FaZal Husen v. Raj Bahadur
I I. li. R. 20 All. 124

"^- ■ Application for

\T.ecution of decree. B, the mortgagee of certain
|>roi>erty, sued N, the mortgagor, and T, to whom
I'Tpart of the mortgaged property had been trans-
,erred by sale, for the mortgage-monev and the sale
j'f the mortgaged property. On the "24th Septem-
«t he obtained a decree, which directed .V to pay.

LIMITATION ACT (XV OF 1877j-ccn<i.

Schedule ll~conid.

- Art, 17Q— contd.

2. PERIOD FROM WHICH LIMITATION
RVaS— contd.

the money, and that it might be realized by the sale
of the mortgaged property. T appealed, contending
that, as the instrument of mortgage was not re-
gistered, it was not receivable as evidence of the
mortgage, and therefore the sale of the property
had been improperly ordered. N did not appeal.
The Court of first appeal allowed this contention
j and set aside the order for the sale of the property.
The mortgagee preferred a second appeal, and on the
j I5th January 1 830 the Court of last appeal modified
{ the decree of the lower Court, directing that a part
: of the mortgage-money might be recovered by the
j sale of the mortgaged property. On the 'l4th
September 18S2 B applied for execution of the de-
cree against N : — Held, that the period of limitation
for the application was governed by Art. 179 of the
Limitation Act, and such period would run fr(jm
the final decree of the Appellate Court. Basant
Lal v. Najmunnissa Bif.i . I. L. R. 6 All. 14

Date from which

53.

limitation runs — Application to take money out of
Court. Plaintiff obtained a decree against defend-
ant on the 24th November 1875, and on the 14th
October 187*1 he got execution and sold some lands
of the defendant. On 9th February 1S77 he
applied to the Court for payment tliereout of moneys
lodged bj' the purchaser, and on that day got the
money. In the meantime an appeal was presented
by the defendant and dismissed on the 28th ilarch
1877. 'Ihe present application for execution was
made on the 7th Felriiary ISSO :— i/eW, that Art.
179, cl. 2, of the Limitation Act of 1877, which
fixes the date of the order of the Appellate Court,
when there is an appeal, as the point from which
the three years is to count, applied, and that the
plaintiff was therefore in time. Wh.cn there is no
appeal, the date of the decree or of apphcation is the
point from which Hmitation counts, but not when
there is an appeal. Held, further, that the appli-
cation by plaintiff to the Court (9tii February 1877)
for the money paid in by the purchaser was a step
taken to aid in the execution of the decree. Ven-
katarayalu v. Narasimha. I. L. R. 2 Mad. 174

54.

Decree of High

Court confirmed hy Privy Council, application for
execution of. Where a judgment-debtor who has ap-
pealed to the Privy Council obtains a rule nisi from
the High Court su.spending execution until security
ia given, and this rule is subsequently made ab-
solute, it does not operate against the decree-holder
in the matter of time : limitation not running against
him until the result of the appeal is known, or the
rule otherwise falls to the ground. Gunesh Dxjtt
Singh v. Mugneeram Chowdhry. 19 W. R. 186

( 7507 )

DIGEST OF CASES.

( 7508 )

LIMITATION ACT (XV OF 1871)— contd.
Schedule U^contd.

Art. n9~contd.

2. PERIOD FROM WHICH LIMITATION

RUNS— coMf(7.

55. Application for

execution of decree — Order of Privy Council. Held,
that the words " appeal " and " Appellate Court,"
Art. 179 {2), Sch. II of Act XV of 1S77, include an
appeal to Her Majesty in Council : — Held, therefore,
where an appeal had been preferred to Her Majesty
in Council from a decree of the High Court, dated
the ISth August 1871, and the High Court's decree
was affirmed by an order of Her Majesty in
Council, dated the 12th August 1876, and ap[)hca-
tion for execution of the Higli Court's decree was
made on the 15th Julv 1879, that under Art. 179 (2),
Sch. II of Act XV of 1877, the limitation of such
apphcatioii must be computed from the date of the
order of Her Majesty in Council. Narsingh Das
V. Narain Das . . . I. L. R. 2 All. 763

56. " Appeal " —

"Appellate Court''' — Ord'-r of Privy Council —
Application for execution of decree. The term
" appeal " in Art. 167 of Sch. II of the Limitation
Act (IX of 1871) includes an appeal to the Privy
Council ; and the term ' ' Appellate Court ' ' in the
same article includes the Judicial Committee of the
Privy Council sitting for the purpose of hearing
appeals from orders passed by British Courts
in India. Where an appeal had "been preferred to
Her Majesty in Council from a decree of the
High Court reversing the decree of the Court of
first instance, and the High Court's decree was
affirmed by an order of Her Majesty in Council,
dated the 15th February 187.3, and an apphcation
for execution for the High Court's decree was made
on the 17th November 1875, more than three
years after the date of the decree, but within that
period of the order of Her Majesty in Council : —
Held, that, under Art. 107 of Sch. II, Act IX of
1871, the hmitation for such application must be
computed from the date of the order of Her
Majesty in Council, and consequently that the ap-
phcation for execution was not barred. GoPAi,
Saiiu Deo v. ,Toyra:m Tewary

I. L. R. 7 Gale. 620 : 9 C. L. R. 402

57. Appeal by one

of several defendants — Execution of decree — Appli-
cation for execution against defendant wlio hats not
appealed. On the 11th July 1877 a decree was
made against B and J, the defendants in a suit,
against which J alone appealed, such appeal not
proceeding on a ground common to him and B.
The Appellate Court affirmed such decree on the
20th November 1877. On the 23rd September 1880
the holder of such decree applied for execution
against B .—Held, that, so far as B was concerned,
limitations should be computed from the date of
such decree, and not from the date of the decree

LIMITATION- ACT (XV OP 1817)— conid

Schedule ll~contd.
Art. 119—contd.

2. PERIOD FROM WHICH LIMITATION

, RUNS— conirZ.

(f) Where there has been an Appeal — contd.

of the Appellate Court, and such application wf
therefore barred by limitation. Sangram Sinoh
BtJjHARAT Singh . . I. L. B, 4 All. 3

58. Appeal by son

only and not all of the defendants — Amendment .|
decree — Review of judgm.ent. On the 7th July 18^,
a District Court gave the plaintiff in a suit a deer '
against all the defendants, including B. All ti|
defendants appealed to the Sudder Couij
from such decree, except B. The Sudder Cou
on the 6th March 1865 set aside such decrJ
and dismissed the suit. The plaintiff appealed |
Her Majesty in Council from the Sudder Courtj
decree, all the defendants except B being re.spo
dents to this appeal. Her Majesty in Council, (I
the 17th March 1869, made a decree reversin
the Sudder Court's decree and restoring that of t
District Court. On the 9th OctobeT 1869, t
plaintiff applied for execution of the District Cour
decree, and such decree was under execution up
July 1872. On the 9th October 1874 the plaint
applied for amendment of such decree in carta
respects, it being incapable of execution in the
respects. B was a party to this proceeding. (
the 16th August 1876 such decree was amendeii
and the plaintiff subsequently applied for it« execj
tion as amended against all the defendants : — Hei>
that the application of the 9th October 1869 W
within time, computing from the date of the decit
of Her jVIajesty in Council. Chedoo Lai v. Na!,
Coomar Lai, 6 W. R. Mis. 60. Held, also, that ii
application to amend such decree, being substs|
tially one for review of judgment, gave under Al
167, Sch. II of Act IX of 1871, a period fr<k
which limitation would run in respect of the stK
sequent application for execution, which was the^
fore within time. Kishen Sahai v. Collectoe f
All-ahabab . . . I. L. R. 4 All. 1'

See Kali Prostjnno Basu Eoy v. I
Mohan GrHA Roy.

I. L. R. 25 Calc. 2>
2 U. W. N. S|>

59. Appeal aga

whole decree by one defendant only — Execution of
cree — Execution against judgment-dehior who did
appeal. A plaintiff obtained on the 14th Septeni
1881 a decree against two defendants, the decrii
against the first defendant being one for partitic
and as against the second defendant (who hadjl
up a julkur right on the lands claimed to be paj--
tioned, and had contended that partition could i*
be had, and had obtained a partial decree, but p
been ordered to pay partial costs to the plaint;!,
being one for costs. The first defendant alone ••

( 7509 )

DIGEST OF CASES.

( 7510 )

IMITATION ACT (XV OF lSn)—contd.
Schedule II— contd.

Art. 179— contd.

PERIOD FROM WHICH LIMITATION
RUNS— ronirf.

r) Where there has been an Appeal — confd.
•aled against this decree, but unsuccessfully, his
ipeal being dismissed on the 18th January 1884.
1- decree-holder applied for execution of his decree
against the second defendant for costs in Decem-
T 1886 : — Held, that the application was not
irred, for that limitation ran from the 18th Janu-
V 1884. NuNDUN Lall v. Rai Joykishen

I. L. R. 16 Gale. 598

60.

Appeal agnhist

irt of decree — Execution against judgment-dehtors
\oi*e interests were not sought to he affected hij the
hpeal. In a suit for land against sevsral defend-
its, plaintiff obtained, on 14th June 1884, a
,cree against the shares of defendants Nos. 3 and
the shares of defendants Nos. 5 and 9 being
onerated. The decree-holder appealed against
at portion of the decree which exonerated the
ares of defendants Nos. 5 and 9, defendants Nos.
ind 4 being brought on to the record of the appeal
I respondents. The appeal having been dismissed,
,e decree-holder applied on 20th October 1887 for
,ccution against the shares of defendants Nos. 3
d 4: — Held, that the application for execution
,is barred by the Limitation Act, 1877, Sch. II,
■t 179. MuTHU V. Chellappa

I. L. R. 12 Mad. 479

A ppcal against

^rt of decree — Execution against judcjment-dehtors
•10 were not joivcd in the appeal. By a decree of a
'lurt of first instance, dated the 16th August 1880,
115,260-5-6 was found due against A, and
120,099-2-6 against A and B jointly, the suit being
ismissed ds against two other defendants M'ho were
|eged to have been sureties. The plaintiff ap-
j aled against so much of this decree as dismissed
e suit against the alleged sureties, not making
her A OT B parties respondents ; this appeal was
^missed on the 1st May 1S82. On the 27th April
j8o plaintifE ap])iied for execution against A and
.' — Held, that the application Mas laarred under

("t. 179 of the Limitation Act. Raghtjnath
;'RSHAn V. Abdui, Hye . I. L. R. 14 Calc. 26

"* ,, E.recution of de-

l*— ' Appeal " — " Final decree or order " — Decree
mnst defendants severally — Appeal hy some only
\the jvdgment-debtors—Civil Procedure Code, s.
j^. Where a decree for possession of immoveable
operty was passed not jointly, but severally, as
jamst all the defendants individually, and specifi-
|lly stated the proportions of which they were
irerally in possession, as also the costs separately
yable by each of them to the plaintiff ; and where
|o only of the defendants appealed on pleas which
;« not assail the decree in respect of any right or
>und common to the appellants and all or any of

LIMITATION" ACT (XV OF 1877)-co»/<?.

Schedule II— contd.
— Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION

RV^S— contd.

(c) Where there has been ax Appeal— con^rZ.
the non-appealing defendants, but referred merely
to the specific property alleged to be in the appel-
lants' hands -.—Held, by the Full Bench (Brodhurst
and Mahmood, JJ., dissenting), that a first appli-
cation for execution of the original decree against
those defendants who had not appealed from it,
and which was made five years after the date of the
decree, -was barred by limitation, and cl. 2 of Art.
179, Sch. II of the Limitation Act (XV of 1877),
did not apply so as to make time run from the pro-
ceedings in the appeal preferred by the other de-
fendants. That clause applies only to those cases
in which the parties to the execution-proceedings
were parties to the appeal, or to the class of cases to
which s. 544 of the Civil Procedure Code applies.
Wise V. Bajnarain Chuckerbutly, 1 B. L. B. F. B.
258 : 10 W. B. 30, and Mullick Amed Zumma v.
Mahomed Syed, I. L. B. f> Calc. 194. approved.
Held by Brodhurst and Mahmood, •//. (contra),
that Art. 179, cl. 2, must be construed as applying
M-ithout any exceptions to decrees from svhich an
appeal has been lodged by any of the parties to the
litigation in the original suit. Nur-id-Hasan v.
Muhammad Hasan, I. L. B. S All. 373, followed.
Mashiat-tjn-nissa v. Rani . I. L. R. 13 AIL 1

63.

Date of final de-

cree or order of the Appellate Court — Execution of
decree. Certain plaintiffs obtained a decree for pre-
emption in respect of four villages. The defend-
ant appealed, and the lower Appellate Court dis-
missed the appeal. The defendant again appealed,
but in his appeal only questioned the decision of the
lower Appellate Court in respect of two of the vil-
lages in suit. In this second appeal the plaintiff's
suit was dismissed as to one of the villages with re-
gard to which the appeal was preferred, and the
defendant's appeal was dismissed as to the other : —
Held, that in respect of all the three villages as to
which the final decree stood in favour of the plaint-
iff, limitation began to run against the decree-
holders from the date of the de -ree in second ajipeal,
and not as to two of them from the date of the
lower App -Hate Court's decree. Hur Proshaud Boy
V. Enayet Hossein, 2 C. L. B. 471 ; Shangram Singh
V. Bujharat Singh, I. L. B. 4 All. 3 > ; and Mashiat-
un-nissa v. Bani, I. L. B. 13 All. 1, distinguished.
Badi-un-Nissa v. Shams-ud-din

I. L. R. 17 All. 103
64, -Final decree of the

Appellate Court — Appeal as to portion of the claim
disallou-ed. A brought a suit against B for a sum
of money, and obtained a decree for a portion of the
amount claimed. On the 30th November 1891, the
plaintiff appealed as to the balance of his claim ;
but the appeal was dismissed by the District Court

( V511 )

DIGEST OF CASES.

( 7512

LIMITATION ACT (XV OF 1877)— cowid.
Schedule 11— contd.

Art. VIQ— contd.

2. PERIOD FROM WHICH LIMITATION

RVNS— contd.

on the 1st June in 1892 and by the High Court on
the 31st May 1894. On an application, on the 1st
June 1895, by the assignee of the original decree-
holder, to execute the said decree, an objection was
raised by the judgment-debtor that execution was
barred by lapse of time : — Held, that Art. 179, Sch.
II, cl. (2), of the Limitation Act applied to the case,
the period of limitation ran from the date of the
final decree of the Appellate Court, and the applica-
tion for execution, being within three years from
that date, was within time. Sakhalchcmd Rikhawdas
V. Velchand Gujar, I. L. R. IS Bom. 203, followed.
Haekant Sen v. Biraj Mohan Roy

I. L. R. 23 Gale. 876

65. A ppeal by one of

several dejendants aqninst fart of the decree. The
plaintiff obtained a joint decree against defendants
for possession of immoveable i^roperty and damages
on 21st May 1886. Against that decree all the
defendants except defendant No. 1 appealed, and on
2nd July 1887 so much of the decree was reversed as
made the appealing defendants Uable for damages,
but was affirmed in all other respects. A second
appeal by the plaintiff from the decree of the Appel-
late Court was dismissed by the High Court on 9th
July 1888. An appUcation for execution of the de-
cree was made by the plaintiff on 7th .July 1891,
within three years from the date of the final decree
dated 9th July 1888. Defendant No. 1 objected
that Hmitation as against him would run from 21st
May 1886, there being no appeal by or against him
from the decree of that date : — Held, that limitation
against defendant No. 1 would run from date of
decree in appeal, therefore the application for exe-
cution was not barred by hmitation. Gungn Mooije
V. Shih Sunker, S C. L. ^R. 430, followed. Mashiat-
un-nissa v. Rnni, I. L. R. 13 All. 1, distinguished.
GoPAL Chdndka Manna v. Gosain Das Kat.ay
I. L. R. 25 Gale. 594
2 G. W. W. 556

66.

Ex parte decree

— Application to nd decree aside — Appealfrom order
rejecting application — Subsequent application for
execution of decree more than three years after date
of decree. The plaintiff obtained an ex parte
decree against the defendant on the 10th March
1886. The defendant applied to have the decree set
aside. His application was finally rejected by the
Appellate Court on 5th March 1887. The decree-
holder presented a darkhast for execution of the
decree on 24th September 1889 :— 7/eW, that the
darkhast was time-barred under Art. 179, cl. 2, of
the Limitation Act (XV of 1877). The appeal re-
ferred to in that clause is clearly an appeal from the
decree or order sought to be executed, and not an

LIMITATION ACT (XV OF 1877)-<;onfef.

Schedule 11— contd.
Art. VIQ— contd.

2. PERIOD FROM WHICH LIMIT 4TTC

RUNS— cow<(^.

appeal from an order of the Court refusing to set
aside. The unsuccessful attempts made by t
defendants to set aside the ex parte decree cou
not have the effect of extending the period p
scribed by law for execution of the decree. Jiv.
V. Ramchandra , . I. L. E. 16 Bom. I'l

67.

Execution of

cree — Appeal hij plaintiff against part of
making all defendants respondents — Execution f
part of decree not apjnaled against. On the 2.'l
March 1886, the plaintiff obtained a decree in 'ft
Court of first instance against five defendants, if
daring his right to certain specific immoveable pi-
perty, which was, however, modified on an app 1
preferred by the defendants, the decree of the loir
Appellate Court giving the plaintiff a decree for o /
two-thirds of the property claimed, and dismiss |
his suit in respect of the remaining one-tliirdi
favour of defendants Nos. 2 and 4. The Icr
Appellate Court's decree was dated the 13th Jjr
1886. Against that decree plaintiff preferreci
second appeal to the Hioh Court, making all |e
defendants respondents, which appeal was, hi|-
ever, dismissed on the 16th .June 1887. The pla:-
iff, on the 13th June 1890, applied for executioi'f
the decree in his favour in respect of the two-thi.8
of the property held to belong to him, and defei-
ants Nos. 1 and 5 objected on the ground that 'e
right to execution was barred, hmitation runrg
from the 13th July 1886, the date of the lofO
Appellate Court's decree in the plaintiff's favourj-
Held, that hmitation ran from the 1 6th June l'",
and that the application was not therefore ba-
All the defendants were parties to the secoii-
peal, and the Court to which the apjilication
made for execution was not bound, before allov^
execution, to go into aU the circumstances of >t
appeal and consider whether the decree of the Ir '
Appellate Court in favour of the plaintiff foi
two-thirds of the property was or was not pr
cally .«ecure ; the High Court had all the p*
before it, and, if it had been right to do so, n
have altered the decree against any of tl
Qucere : Whether under such circumstances t'
Legislature could have intended the Court execupg
a decree to go into questions so complicated i[^
whether in such a case the whole decree wa;os
might have been or become imperilled in the C)rt
of Appeal, and whether the plain words of Art,<9
might not be followed with less of possible inco'e-
nience and complexity, even though in some ca.',i «
might result in execution of a decree going agait*
defendant a Kttle more than three years after 'Q
decree was practically secure against him. '■"■
dun Lall V. Rai Joykilhen, I. L. R. 10 Calc. JPSiP"

( 7513 )

DIGEST OF CASES.

( 7514

IMITATION ACT (XV OF l8n)-^ontd.

Schedule 11— conUl.

j Art. llQ—contd.

' PERIOD FROM WHICH LIMITATION
RUaS—contd.

■) Where there has been an Appeal — contd.
oved. Kkisto Churn Dass v. Radha Churn
jR . . . .1. L. R. 19 Calc. 750

68. — ^ Appeal against

rt of decree only — Appeal dismissed — Application
- execution of original decree. On the 2r)th June
'11, in a suit ag.iiust seven persons who were mem-
iofa Mahomedan family, the plaintiff obtained
lecree on a mortgage. The decree directed the
le of 44 of the mortgaged property, but it exoner-
■ed from liabihty the share of a female member
efendant No. 2) of the family, which was ^ of the
'lole estate. The plaintiff appealed as to the -^
are only. He made all the defendants re.spondents
the appeal, but the name of the first defendant
is afterwards struck out, as he could not be
rved with notice. His interests, however, were
?ntical with those of defendants Nos. 3 to 7 . On
c 30th July 1892 the plaintiff's appeal was dis-
ssed. On the ord July 1895 the plaintiff applied
1: execution of the original decree. The defend-
ts contended that, as the appeal related only to
at part of the decree which related to the ^ share
the second defendant, the rest of the decree was
'laffected by the appeal, and tliat consequently the
liintifi's application for execution of that decree
'is barred under Art. 179 of the Limitation Act
>V of 1877), not having been made within three
jars from the 2fith June 1891 -.—Held, that the
I'plication was not barred. The date of the appel-
i:e decree, and not that of the original decree, was
^e date from which hmitation began to run. Per
liRSONS, J. — The word " appeal " in Art. 179 does
■t mean only an appeal against the whole decree
'd by which the whole decree is imperilled, it
liana any appeal by any party. Per Ran ad e, J. —
Iccept in the case where a nominally single decree
'^ards separate reliefs against separate defendants,
je words of Art. 179 must be construed in their
[tural sense as permitting an extension of limita-
Im where an appeal is preferred and is not
Ithdrawn. About, Rakiman v. Maidin Saiba
I I. L. R. 22 Bom. 500

1 88. Fi7ial decree of

\ppellate Court — Decree against joint defendants —
jpp€oZ hif one of two defendants against part of the de-
'■e — Decree against non-appealing defendant ' ' im-
rilled." Plaintiff having, on 31st March 1891, ob-
inedin a District Munsiff's Court a decree render-
g liable the property of two defendants, tlie second
fendant appealed, making the plaintiff alone
spondent, with the result that the District Court
t aside the decree against the second defendant,
d remanded the suit for trial as to his liability.
aintiff appealed unsuccessfully to the High Court
ainst this order of remand, the first defendant

I LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— c mid.

2. PERIOD

Art. 179— CMtd.

FROM WHICH

RUNS— cmtd.

LIMITATION

(c) Where there has been an Appeal — contd.
again not being made a party. On 23rd July 1891,
the District Munsif dehvered a revised judgment,
in which he again hekl the second defendant's share
liable, but gave both defendants two months' time
for payment, whicli provision was not contained in
the original decree. This revised judgment was
upheld by the District Court on appeal on 25th
March 1895, and by the High Court on second ap-
peal on 22nd February 1897, with the modification
that the decree as against second defendant should
be treated as a money-decree. First defendant was
again not a party to either appeal. On 7th August
1897, plaintiff appHed for execution, whereupon
first defendant pleaded hmitation : — Held, that tho
decree as against the first defendant was not barred
by limitation, inasmuch as it had been imperilleil
by tlie appeal on the second defendant. Per
Moore, J.— Under Art. 179, cL Ci), of Sch. II of the
Limitation Act, it is immaterial whether some only
or all of several judgment-debtors prefer an appeal.
There is only one decree that can be executed, and
that is the final decree of the Appellate Court.
Per O'Farkell, J. — On the general question as to
the construction of Art. 179, Sch. II of the Limita-
tion Act, the plain words of the Act have been un-
duly narrowed by the decision in Maihu v. Chellap-
pa, I.L. R. 12 Mad. 479 ; the consideration of such
subtle points as whether a decree was or was not
" imperilled " by an appeal was foreign to the in-
tention uf the Legislature. Virakaghava Ayyan-
gar v. Ponnammal . . I. L. R. 23 Mad. 60

70. — Application for

possession and mesne profits after execution of decree
is barred. A, as purchaser of a decree against
B, apphed for execution thereof, and, having caused
five fields of B to be sold in execution, purchased
four of them at the Court-sale, and one from an exe-
cution-purchaser. On 10th July 1871, however, the
Iliyh Court, in an appeal by B, held A's application
for execution to have been time-barred, and re-
versed the orders of the two lower Courts. .4 hav-
ing been put in possession of the fields under the
orders of lower Courts, B, on a reversal of those
orders by the High Court, appfied on 9th July 1874
to have the fields restored to him, together with the
mesne profits accruing during the time of his dis-
possession. The first Court awarded the fields to B
with mesne profits ; but the District Judge on ap-
peal held B's application barred under Act IX of
1871, Sch. II, cl. 166 f—Held by the High Court,
that the exception in Art. 166 of Sch. II of the Limi-
tation Act, IX of 1871, was not restricted to any
particular species of appeal ; that B's apphcation
fell within Art. 167, and not within Art. 160 ; and
therefore was not barred. Unuashankar Lakh-
miram v. Chotalal Vajeram I. L. R. 1 Bom. 19

( 7515 )

DIGEST OF CASES.

( 7516 )

LIMITATION ACT (XV OF 1877)— cow^d. | LIMITATION" ACT (XV OF 1877)— contc

Schedule II — contd.

Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION \

RUNS— co?i/rf.

71.

Application for

72.

Appellate order in

execution cj decree. A, the judgment-debtor, op
posed an application made by B, the judgment-
creditor, for execution under a decree. This ob- j
jection was overruled on the 17th January 1876. \
The appeal by A from this order {B being repre-
sented and opposing A's appeal as the hearing)
was dismissed on the 2nd October 1877. On a
second apphcation for execution made by B on the
18th March 1879 : — Held, th.a.t such application was
barred under Art. 179, Sch. II, Act XV of 1877.
Kkisto Coomar Nag v. Mahabat Khan

I. L. E. 5 Gale. 595

execution. The holder of a decree for possession
and partition of a share of certain immoveable pro-
perty, dated the 19th January 1878, applied for
execution on the 2nd February 1878. An order was
made by the Court of first instance, from which the
decree-holder appealed. The Appellate Court, on
the 18th September 1878, reversed the order of the
first Court, and directed that the partition of the
property should be effected by lots, and remanded
the case for that purpose. The first Court proceed-
ed to carry out the order of the Appellate Court,
but eventually struck ofi the case, on the 15th Feb-
ruary 1879, as the decree-holder failed to appear
personally when ordered to do so. On the 13th
September 1881, the legal representative of the de-
ceased decree-holder, who had meantime died,
appUed, with reference to the order of the Appel-
late Court dated the 18th September 1878, to have
lots drawn in accordance with that order -. — Held,
on the question whether this application was barred
by limitation, that, if it were regarded as nothing
more than an application for execution of the origi-
nal decree, it might be barred, inasmuch as it had
been made more than three years after the date of
the last apphcation, and it was doubtful whether
the 2nd clause in the .3rd column of Art. 179, Sch.
II of Act XV of 1877, would apply, since the appeal
there referred to is probably an appeal from the
decree or order of which execution is being taken
referred to in the first clause of that article, and not
an appeal in course of execution of that decree or
order ; that, however, the order of the Appellate
Court, dated the 18th September 1878, was itself
of the nature of a decree and capable of execution,
and for the execiition of which an ajjplication could
be made to which that article would apply ; that the
application in question should be regarded as one
for execution of that order ; and that therefore, so
regarding, it was within time. Hulasi v. Maiku
I. L. B. 5 All. 236

Schedule II — contd.
Art. 179— contd.

2. PERIOD FROM WHICH LIMITATIn'

RUNS— cow^rf.

73. - ^ " Decree '-

Order rejecting memorandum of appeal for deficiey
of Court-fee. An appeal from a decree, dated o
18th July 1879, was rejected by the High Court i
the 11th June 1880, in consequence of the failur.f
the appellants to pay additional Court-fees declad
by the Court to be leviable. On the 23rd Decen r
1882 an application was filed by the decree-hoj:E
for execution of the decree -.—Held, with referenco
Act XV of 1877 (Limitation Act), Sch. II, Art. 9
(2), that the order of the 11th June 1880, rejecig
the appeal on the ground of deficient paymt
of Court-fee, was equivalent to a decree, .d
therefore the application, being made not more t n
three years from the date of that order, was )t
barred by hraitation. Rup Singh v. Mtjkbu
Singh . . . I. L. R. 7 All. !i7

74. — ApplicatioTior

execution of decree — Order staying execution, le
plaintiii obtained an ex jxtrte decree on 7th of Jb-
ruary 1876, of which he applied for execution cine
31st of May 1876. Thereupon the defendant p-
plied to set aside the decree, on the ground thane
had had no notice of the suit, and an order as
made staying the execution of the decree. Th.le-
fendant's application was rejected on the 15t of
November 1876, and an appeal by the defendit,
pending which the stay of execution was contiod^
was dismissed on the 19th of December ]'7.
Previously, — viz., on the 21st of February 18' —
the execution case had been struck ofi the fill —
Held, that, notwithstanding the application 'as
made more than three years after the decree, nd
the plaintiff was not entitled to any deduction cthe
time during which the execution was stayei by
order of Court, an application for execution i
on the 10th of December 1880 was under Ai;

of Act XV of 1877, not barred, the decree not .
final until the order dismissing the appeal oii^i'ti
19th of December 1877. Lutful HtjQv. SvmV'
DIN Pattuck !

I. L. R. 8 Calc. 248 : 10 C. L. B[43

75. Execution 'de-
cree. Art. 179, cl. {2), of the Limitation ActSV
of 1877) must be construed as intended to ijpiy
without any exceptions to decrees from whi( au
appeal has been lodged by any of the parties i
original proceedings and should certainly be a |

to cases where the whole decree was imperill .
the appeal. A suit for pre-emption was de<^
against the vendors, the purchaser, and anothj set
of pre-emptors in March 1882. The last-mentned
defendants alone appealed, and their appeal Wijdis-
missed in May 1882. In May 1885 the decree^la-
ers appHed for execution of the decree. Tl ap*

( 7517 )

DIGEST OF CASES.

{ 7518

.IMITATION" ACT (XV OF 1811)— contd.

Schedule Ll—contd.

Art. n»—C'jntd.

PERIOD FROM WHICH LIMITATION
RUNS— con/rf.

[cj Where there has been ax appeal — coiitd.
lication was objected to by the jjurchaser as barred
V limitation, having been filed more than three
ears from the passing of the decree, and it was con-
jnded that Art. 179, cl. (2), did not apply to the
ise inasmuch as the purchaser did not appeal from
!ie original decree -.—Held, that Art. 179, cl. (2) of
■ le Limitation Act was appHcable, and that the
t Plication, being made within three years from the
ppellute Court's decree, was not barred by limit-
tion. Hvr Prasad Roy v. Enayat Hossein, 2 C. L.
,. 471, and Sanrjrnm Singh v. Bujharut Singh, I.
;. /?. 4 All. 36^, distinguished. MullicJc Ahmed
'umvui V. Mahomed Syed, I. L. R. 6 Calc. 194,
'id Ram Lai v. Jagannath, All. WeeJcly Notes
SS4) 138, relied on. Nuk-ui.-Hasan v. Muham-
AD Hasax . . . I. L. R. 8 All. 573

'76. — - Adjudication that

ecittion is barred by limitation — Finality of order —

'\ml Procedure Code, s. 208 — Amendment of decree.

1 apphcation to execute a decree passed

' April 1880 was made on the 19th February 1884

jid rejected on the 26th March 1884 as being be-

md time. This order was upheld on appeal in

'irch 1885. While the appeal was pending, the

|cree-holder in I\lay 1884 applied to the Court of

jSt instance to amend the decree under s. 206 of the

vil Procedure Code, and in December 1884 the ap-

;;cation was granted. In April 1885 an application

lis made for execution of the amended decree, the

Vree-holder contending that hmitation should be

i' ulated from the date of the amendment, and

't Art. 178 of the Limitation Act (XV of 1877)

'i'd to the case: — Held, that Art. 179, and not

ITS, was applicable ; that the order rejecting

] plication of the 19th February 1884 became

n being upheld on appeal ; that the amend-

-ould not revive the decree or furnish a fresh

iig-point of hmitation ; and that the applica-

was therefore time-barred. Mungul Pershad

' V. Grija Kant Lahiri, I. L. R. S Calc. 51,

Unm Kirpal v. Rup Kuuri, I. L. R. 6 All. 269,

■ '-d to. Tarsi Ram v. Man Singh

I. L. K. 8 All. 492

See Daya Kishor v. Naxki Begam.

I. L. K. 20 All. 304
Execution of de-

LIMITATION act (XV OF 1877)— co7^^i.
Schedule II — contd.

Injunction. The decrce-liolder obtained a de-

t>r rent on the 12th January 1892, and made

plication for execution on the 10th March

which was di.<missed on the ground of in-

lity on the 30th June 1892. On the 1st July

• I temporary injunction was issued, restraining

• crce-hokler from executing the decree pcnd-

' 0 decision of a siut brought by the judgment-

■' I. in which it was, inter alia, prayed that the

Art. 119— contd.

LIMITAI'ION

2. PERIOD FROM WHICH
RUNS— cow W.

(c) Where there has beex ax appeal — concld.
decree which had been executed should be .set aside.
The suit was decreed by the first Court, but on ap-
peal it was dismissed, and the injunction was dis-
charged on the 20th May 1897 -.—Held, that the
apphcation, dated the 18th May 1900, for execution
of the rent-decree, was barred ; and that the decree-
holder was not entitled to a fre-sh starting point
from the 20th May 1897. Sarup Ganjan' Singh
Bhuyan v. Watson (1901) . 6 C. W. N 735

78. Commencement of

period of limitation for application to execute portion
of decree not appealed against, where portion has been
appealed against— Comtnencement of period of
limitation under s. 230 {a). Civil Procedure Code, for
application to execute portion of decree not appealed
against. Under Art. 179 of Sch. II to the Limita-
tion Act when a portion of a decree has been ap-
pealed against and a portion has not, the period
of limitation for an application to execute the por-
tion not appealed against runs from the date of the
original decree. In the case of a decree for the
payment of money or the dehvery of property, the
period of hmitation for an apphcation to execute
I a portion of the decree which has not been ap-
1 pealed against runs, under s. 230 (a) of the Code of
I Civil Procedure, from the date of the decree on ap-
j peal. Muthu v. Chellappa, I. L. R. 12 Mad. 479,
dissented from. Kbistnama Chariar v. Mangam-
' MAL (1902) . . . I. L. R. 26 Mad. 91

79.

Execution of de-

cree— Limitation — Appeal — Appeal not presscd-
Terminus a quo. Where there has been an appeal
from a decree hmitation does not the less begin to
run from the date of the final decree in appeal, be-
cause the appeal may have been dismissed upon the
representation of the appellant's counsel that he
was unable to support it. Jeeyangar v. Lahshmi
Dass, 16 Mad. L. J. 393. followed. Hingan Khan v.
Ganga Parshad, I. L. R. 1 All. 293, and Fazal
Husen v. Raj Bahadur, L L. R. 20 All. 124, dis-
tinguished. Fazl-vr-Rahmax v. Mm am mad
Khan (1908) . . I. L. R. 30 AU. 385

(d) Where there has been a Review.

80. Cl. 3. The provision of the

article where there has been a review is opposed

to the decisions of Chowdhry Juxmexjoy Miluck

V. Bissambhar Panjah . . 5 W. R. Mis. 45

GouB Mohun Shaha I'. GorB Mohix Ghose

5 W. R. Mis. 11

but in accordance with most of the decisions.

81. • Rejection of app li-
cation for review — Time during which review teas
pending— Application for refund of moneys levied

( 7519 )

DIGEST OF CASES.

{ 7520

liIMITATION" ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. 119—contd.

LIMITATION ACT (XV OF 1877)-

Sehedule 11— contd.

Art. 119—contd.

2. PERIOD FROM WHICH LIMITATION

UVNS— contd.

(d) Where there has been a Review — contd.
under decree reversed on appeal. Where a review
of judgment has been applied for, and, after notice
to the other side, refused, the period during which
such application was pending cannot be excluded
in computing the period of limitation for execution
of the decree under Art. 179 (3) of Sch. II of the
Limitation Act. Semble : An application for re- i
fund of moneys levied in execution of a decree sub- 1
sequently reversed on appeal is not governed by '
Art. 179, but by Art. 17S, of Sch. II of the Limita- j
tion Act. KuRTJPAM Zamindar v. Sadasiva

I. Ii. B. 10 Mad. 66 i

82.

Order allowing

amendment of a decree — Revieio of judgment — Code
of Civil Procedure (Act XIV of 1S82), ss. 623,
624, and 206. An order granting an application for
amendment of a decree under s. 206 of the Code of
Civil Procedure is an order passed upon review of
judgment within the meaning of Art. 179, Sch. II,
cl. {3), of the Limitation Act ; therefrom an appli-
cation for execution of a decree mthin three years
from such an order is not barred by limitation.
Kishen Suhai v. Collector of Allahabad, I. L. R. 4
All. 137, referred to. Kali Prosunno Basu Roy v.
Lal Mohun Guha Roy . I. L. R. 25 Calc. 258
2 C. W. N. 219

83. Cidcidation of

time where decree has been wron/jly varied. Per Sub-
KAMANiA Ayyar, J.— That where a decree which is
at variance with the judgment is brought into con-
formity with the latter under s. 206 of the Code
of Civil Procedure, the date of the rectification is
immaterial with reference to the calculation of the
time in which any appeal may be preferred against
such decree. But where a decree is wrongly varied,
a party affected by such variation should be en-
titled to calculate the time during which an appeal
may be preferred as commencing from the date of
the variation. Pabameshraya v. Seshagieiappa
I. L. R. 22 Mad. 364

84.

Order amending

2. PERIOD FROM WHICH LIMITATKi

RUNS— cow^rf.

{d) Where there has been a Review — cone,
decree against the three defendants, other tla
the third, as to the proportionate part of the j -
perty sued for, and not the subject of thecomp-
mise, the decree-holder afterwards obtained q
order. This order was reversed by the High Co :.
Hence this appeal : — Held, that the order directg
the amendment of the decree in the terms of ;e
compromise was beyond the powers of the 1 h
Court and was without operation either in f a-v ir
of or against those defendants who had not I n
parties to the petition for that amendment. Ld,
also, on the decree-holder's petition for execum
of the decree, that the period of limitation ca-
menced from the date of the primary, and not one
amended, decree of the High Court. Execution aa
therefore barred bj limitation. Instead of attei it-
ing the alteration in the decree, the High C rt
could properly have made the compromise a ru of
Court and have stayed all proceedings against le
defendant who was a party to it, except for the ir-
pose of enforcing it against him. Kotagbi
Venkata Subbamma Rao v. Vellanki Venk'a-
RAMA Rao . . . I. L. R. 24Mfl

Ii. R. 27 I. A. 97
4 C. W. N. i5

decree — Compromise after decree — Sxdjseqxient appli
cation for execution of amended decree. After a
decree for land against four defendants, a compro-
mise was made between the pla ntiff and the third
defendant. The first and fourth had acknowledged
the plaintiff's right. The second and third had
defended the suit, and the decree had been made and
affirmed on'appeal to the High Court, jointly and
severally against the first three and conditionally
against the fourth. An application by the second
and third defendants for leave to appeal to Her
Majesty was withdrawn, the two parties to the com-
promise having obtained an order for amendment
of the decree in its terms. For the execution of the

85.

Civil Proa ire

206 — Limitation ct,

Code (Act XIV of 1882)
Sch. II, Art. 179 (3). A decree was passed onlst
December 1892, and no appeal was presente bj
either party therefrom. Defendant No. 2, how ei;
filed a petition for amendment of the decree i) re-
spect of the costs, which was granted on 6th Go be:
1893. On 6th July 1896, defendant No. 2 af ied
for execution of the decree, and he again appli' on
29th April 1898. On its being contended thttlie
application was barred by limitation : — Held.hii
it was not barred. The order passed by the ' iirt
determining the amount of costs, must be treali as
a continuation or completion of the judgment'ud
the amendment made was therefore substailiU)
made on review of judgment, and Art. 179 (3) th(
Limitation Act applied. Venkata Jogay
Venkatasimhadbi Jaoapatirazct (1900)

I. Ii. R. 24 Ma

(e) Where previous application has been kDS

86.

cl. 4 — Decree not liable

enforced. S. 20, Act XIV of 1859, was not ipli
cable to a decree until the liability under "»
become enforceable by process of exeijuo"
GoPALA Setty v. Damodara Setty . 4 Ma' !'•

87. Applicatf'' fo

execution of decree — " Suit.'" Per Garth, !■•'•
and Markby and Ainslie, JJ. (Kemp anB|VUC
PHERSON, J J., dissenting) — The periods of

( 7521 }

DIGEST OF CASES.

( 7522 )

LIMITATIOW ACT (XV OF 1877)- contd.

Schedule II — contd.
Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION

; RVNS— contd.

e) Where previous application has been

MADE— contd.
tion prescribed in Sch. II of Act IX of 1871 are to be
computed subject to the provisions contained in the
3ody of the Act. Per curiam .—The word ' ' suit ' '
IS used in the Act does not include ' ' application. ' '

)HONESSUR KOOEB V. RoY GOODER SaHOY

I. L. R. 2 Calc. 336

^°- — Application to

recute decree. Where an application was made and
proceedings taken to enforce or keep in force a de-
reo, limitation runs from the date of such appli-
ition, not from the date of the proceedings. Faez
|!UKSH Chowdhry v. Sadut Alt Khan

23 W. R. 282

The contrary was held under Act XIV of 1859,

See Ramanxjja Aiyangar v. Venkata
Gharry ... 4 Mad. 260

89. - Application by

Tvemment for execution of decree. Under Act IX of
m, Government is bound to make an application
jT execution within the same time as any other
jireon. Collector op Beerbhoom v. Sreehxjrry
injCKERBXJTTY . . . 22 W. R. 512

■.' 7~1 Application for

ecuttm of decree— Presentation of application to
force decree. Held by the Full Bench, that the
Oe on which an application for the execution of
jdecree is presented, and not any date on which
cb apphcation may be pending, is " the date of

•plying " within the meaning oYArt. IG?', Sch" 11
Act IX of 1871. -
[rSAIN .

^~' " Application for

Fakir Muhammad v. Ghulam
. I. L. R. 1 All. 580

/ decree. If a decree has once been al-

'fed to expire, no subsequent application, al-

ough made bond fide, can revive it. Mungol

asHAD DicHiT V. Shama Kanto Lahory Chow-

I. L. R. 4 Calc. 708

..^J^^^"" ^^^^ ^- C!^"A Kant Lahiry
"""^"^Y • . . 3C. L.R. 572

iS^ \^^^ ^y *^^ ^"^y ^^""'^"I in appeal that,
nough the execution of a decree may have been
i-MUy barred by lapse of time at the date of an ap-

jcation made for its

1 has be

laving jurisdiction to try, whether it

i'.K «,« ..■"' ; " execution, yet if an order for

1^ execution has been regularly made by a com-

B^oarred by time or not, such order, though erro-
, must, If unreversed, be treated as valid.

IL fEBSHAD DiCHIT V. GrIJA KaNT LaHIRI

_ ^ I. L. R. 8 Calc. 51

L. R. 8 I. A. 123 : U C. L. R. 113

„rrr T. I Admission of prr-

opphcatton by competent Court. In an appli-
VOL. III.

LIMITATION ACT (XV OF 1877)-conld.
Schedule II— contd.

Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION
RV^S— contd.

(e) Where previous application has been

made — contd.
cation for execution of a decree, it was held that,
whether rightly or wrongly, a previous application
having been admitted and registered and attach-
ment having been ordered to issue, it was not open
to the judgment-debtor to question the validity of
the proceedings on the ground of the execution beinc
barred by limitation. Mnngul Pa shad Dichit v
Grija Kant Luhiri, I. L. R. .s CAc. '.1 . L. R. S
J. A. 12 3, referred to. Norendba Nath Pahari v.
Bhupendra Narain Roy I. L. R. 23 Calc. 374

^3- ;: Application for

execution of a decree must be made within three
years of a previous apphcation as required by Act
IX of 1871, Sch. 11, Art. 167. Umiashankar
Lakhmiram v. Choltalal Vajeram, I. L. R. 1 Bom.
10, held not to apply. GiRi Dharee Singh v. Ram
KiSHORE Narain Singh . . 1 C. L. R. 252

Abdul Hekim v. Asseeutoollah 25 W. R. 94
Nilmoney Singh Deo v. Ramjeebun Surkel
8 C. L. R. 335

Wodoy Tara Chowdhrain v. Abdool Jubbur
Chowdhry . . . 24 W. R. 339

94. _ — Civil Procedure

Code {Act XI V of 1882), s. 230. On 15th February
1872 the plaintiff obtained against the defendant a
decree for possession upon his mortgage, and in
attempting to take possession was obstructed by iV,
another mortgagee of the defendant, whereupon the
plaintiii apphcd for removal of the obstruction, but
his application was rejected on the ground that N
was in possession as mortgagee, anrl that the plaint-
iff was not entitled to possession until i\"s mortgase
was redeemed. The plaintiff did not apj^ly for
execution any further. In 1884 the defendant paid
off A^'s mortgage, and on 27th August ISS") the
plaintiff presented an apphcation for execution of
his decree of 1872. On reference to the High
Court": — Held, that the execution of the decree was
barred, no apphcation for ex^pution having been
made since 1873. The previous apphcation for
execution riot having been made under s. 230 of
the Civil Procedure Code (Act XIV of 1882), the
general law of hmitation, as laid down in Art. 179
of Act XV of 1877, governed the case. Annaji
Apaji v. Rajiji Jivaji . I. L. R. 10 Bom. 348

95. — Applicrition for

execution made within time of a previous barred appli-
cation in which execution was allowed. An applica-
tion for the execution of- a decree, though made
within three years from the date of a previous appli-
cation, was barred, under s. 20 of Act XIV of 1850,
if the previous apphcation was barred, even though

11 G

I 7523 )

DIGEST OF CASES.

( 7524 )

LIMITATION ACT (XV OF IQll) -contd.

Schedule II — contd.
Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION
RUNS— contd.

(e) Where previous application has been

MADE — contd.
execution was allowed to issue on such application.
GoPAL GoviND V. Ganeshdas Tejmal

8 Bom. A. C. 97

96. . ■ Application for

execution of decree already barred — Limitation Acts
{IX of 1H71), Sch. II, Art. 167; (XV of 1S77),
ss. 2, 3. No process can legally issue upon an appli-
cation for the execution of a decree already barred
by limitation, nor can an application made under
such circumstances be a valid application, or one
which under the Act would give the execution-
creditor a fresh period of limitation. Shumbhu-
NATH Shaha v. Guruchttrn Lahiri

I. L. R. 5 Calc. 894
6 C. L. R. 437

98.

Decree for posses-

sion and mesne profits reversed as to possession — De-
cree partly in favour of plaintiff and partly in favour
of defendant — Application for restitution of posses-
sion— Civil Procedure Code (Act XIV of 1S82),
s. 583. A obtained a decree against B for possession
and for R27 mesne profits. In execution he got
possession. On appeal, however, the .decree was
reversed so far as it ordered possession to be given to
him, and the amount of mesne profits awarded to
him was reduced to R 1.3-8-0. The appellate de-
cree was passed on the 6th .June 1889. On the 18th
December 1891, the defendant B applied to be res-
tored to possession. That application was dropped,
but on 24th September 1894 he again applied for
restitution. In an application made on the 24th
September 1895 -. — Held, on review, reversing a pre-
vious order, that the defendant's application was
not barred by limitation. Jeddi Sttbraya Ven-

KATESI SaNBAQ v. RaMRAO RaM CH.4NDRA

Mukdishvar . I. L. R. 22 Bom. 998

LIMITATION ACT (XV OF 1877)— <^„i
Schedule ll~contd.

97. Application made

within three years of previous barred application —
' ' A pplication in accordance with law. ' ' An applica-
tion for execution of decree was made in 1885, and
the second in 1891. The latter was at first allowed,
but subsequently struck off for some default of the
applicant. The third application was made in
1893 : — Held, that the second apphcation having
been made at a time when it was barred hj reason
of the three years' period having been exceeded,
the third was barred, though presented within three
years of the second. The phrase ' ' in accordance
with law " in Art. 179 of the Limitation Act was
adjectival not only to the words " to the proper
Court for execution," but also to the words " to
take some step in execution." Bhagwan Jethi-
EAM V. Dhondi . . I. L. R. 22 Bom. 83

Art. 179— contd.

2. PERIOD FROM WHICH LIMITATls
RUISSS— contd.

(e) Where previous application has been
MADE — contd.

99- ■ Time runs ft i

mnldng of application, not from hearing of it d
order on it. An application for execution of a -
cree, dated 1 1 th August 1891, was made on the 1 3
of January 1893 ; notice under s. 248, Civil Pr.;-
dure Code, was issued on the judgment-debtorn
the same day, and he showed cause on the 3r if
March 1893, and the order for attachment .s
made on the same day : — Held, that a subseqiit
apphcation for execution OP. the 21st of Februv
1896 was out of time; the three years' periofjf
limitation should be computed from the ];ii
January 1893, that is, the date when the app.h-
tion was made, and not from the 3rd of M;;h
when tlie apphcation was heard and order m e.
Luchmee Buksh Roy v. Runjeet Ram Pandey,':'j
B. L. R. 177; Fakir Muhammed v. Ghim
Hossain, I. L. R. 1 All. 580, referred to. Si it
KuMARY Dassi v. Jagat Chandra Roy

1 c. w. N. :;0

100. ; Execution de-
cree declaring right to maintenance — Annual payrM.
A decree-holder, having obtained in 1874 a dcee
entithng her to a certain sum to be paid annualloy
the judgment-debtor, applied for execution of he
decree on the 11th of March 1875, but mad no
further application until -July 1882 : — Hdd, 'at
this application was barred by limitation. Sme:
The decree being a declaratory decree, a suit t Jn-
force the annual right to maintenance woulcie.
Sabhanatha Dikshatar v. Subha I^akmi
Ammal . . . . I. L. R. 7 MacSO

101. Application 'th-
in time. Where a .Judge finds that an appHcion
for execution is within time, and there is no a leal
from his finding, his successor is not justifif, in
going behind his order. Dheeraj Mahtab CtST)
V. Moorleedhur Ghose . 15 W. Ii67

102. Suitondecje—

Steps to enforce decree. The plaintiff sued to re j^er
arrears of rent at an enhanced rate, basing the um
on a decree obtained by him in 1866 declariclais
right to such rent -.-Held, that the right was n(|ox-
tinguished, because the plaintiff thought fit cc to
tak'e any steps to enforce it for some four yeariWb-
sequent to the date of the decree. Jai ChaM-
Behaui .... 7N.W77

103.

- — Applicati for

execution of decree. Application for executiop' *
decree obtained in 1858 under the old law as toflut-
ation was made in January and disposed : 1°
February 1864 and a subsequent apphcatioi'^a*
made in November 1867 -.-Held, that thehrst
application was in time, but the second apph""°

( 7525 )

DIGEST OE CASES.

( 7526 )

LIMITATION ACT (XV OF 1871)— contd.
Schedule II — co7htd.

Art. 179— contd.

2. PERIOD FROM WHICH LIMITATION

RUNS— CO/! ^/.

(() WhHRE PRKVIOUS ArPLlCATION HAS BEEN
MADE — COncld.

was barred by s. 20, Act XIV of 1850.

ViKABHADRA Rau V. Ramaiya alias Babpautul A

4 Mad. 148

104.

Obligation to

sitow application is within time. A decree-holder
applying on December 24th, 1864, to execute his
.'ecree passed on December 7th, 1861, was bound,
under s. 20, to show that he had taken some pro-
ceeding within three years next before the applica-
,tioii to keep alive the decree. Bharut Singh v.
|Sadtjt Ali . • . 6 W. R. Mis. 20

KooL Chunder Chuckerbutty r. Kumijl
Chitnder Roy . . . 6 W. R, Mis. 17

105.

Application with-

itt time. Ad apphcation made on the 8th January
1875 to execute a decree, the last preceding appli-
itttion having been made on the Stli January 1872,
jfvasheld to be within the time allowed by Art. 167,'
.sch. II of Act IX of 1871. Dhone.s.sur Kooer v.
''^Y Gooder Sahoy . I. L. R. 2 Calc. 336

(/) Decrees for Sale.

106.

— • Decree for sale

\<n a mortgage—Order absolute for sale— Transfer of
y^rojKTty Act (IV of 1SS2), ss. SS and 89. The
'«nod of limitation for execution of a decree for sale
nder s. 88 of the Transfer of Property Act begins to
uu from the date of the granting of an order^abso-

\a u^^'^ ""^^'' ^- ^^ "^ *^^ -'^'^^' without which
rder the decree cannot be executed, and not from
lie date of the decree itself. Oiulh Behari Lai v.
\agtshnr Lai, L L. R. 13 All. 278, and MulcJiand
\.Mul:ta Pal Sing. All. Weekly Notes {1S96) JOG,
I'WiTed to. Mahabir Prasad v. Sit.al Sinoh
1 I. L. R. 19 All. 520

1 107

' ■ Decree for sale

ji mortgage-Order ahsolute for sale— Transfer of

Property Act (ly of 1SS2), s. 89. An apphcation

!> order absolute for sale under s. 89 of the

>fer of Property Act, 1882, is an application to

a Art. 179 of the second Schedule to the Indian

, mitation Act, 1 877, applies. Oudh Behari Lai v.

\;'9^harLal, /. L. R. 13 All. 278, referred to.

'"■'^"- Singh V. Drigpal Singh, L L. R. IG All.

verruled. Cmjjmi Lal v. Harnam D.as

I. L. R. 20 All. 302
108

Wutt for foreclosure. An apphcation for an
le under s. 87 of Act IV of 1882 is, like an

£nfl''^f°',''" '"'^^'^ ""^^^^ s- 89 of the .said Act,
,Jjeci; to the hmitatiou prescribed by Art. 179 of

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 179— contd.

2. PERIOD FROM AVHICH LIAIITATION
R rjNS— cowcW.

(/) Decrees for Sale — concll.
the second Schedule to Act XV of 1877. Oudh
Behari Lal v. Nageshar Lal, L L. R. 13 All. 278,
and Chunni Lal v. Harnam Das, I. L. R. 20 All.
302, referred to. Parmeshri L.ijl v. Mohan Lal
I. L. R. 20 All. 357

ig) Clause 4.

109.

The time from

which limitation run.'5 under cl. 4 of Art. 179 of Sch.
II to the Limitation Act is 'the date of applying,
and not the date on which the application is dis-
posed of. Falcir Muhammad v. Ghulam Husain,
I. L. R. 1 All. 580 ; Sarat Kamary Dassi v. Jagat
Chandra Roy, 1 C. W. N. 260, followed. Troylokya
Nath Rose v. Joti Prokash Nandt (190.3)

I. L. R. 30 Calc. 761

3. NATURE OF APPLICATION.

(a) Generally.

1- — "Proceeding*'

under Act XIV of 1859, s. 20. The word " pro-
ceeding " in s. 20, Act XIV of 1859, meant a pro-
ceeding not barred by the law of limitation, and
under which process of execution might lawfully
have issued if the proceeding had been opposed.
BissESSUR Mullick v. Dhiraj Mvhtab Chvnd
B. L. R. Sup. Vol. 967 : 10 W. R. F. B. 8

Radhoo Chowdhr.vin v. Heet Lall Roy

11 W. R. 209

2. Application to

I'eep decree in force — Intention to enforce it. In order
to keep a decree alive, it was, under s. 20, Act XIV
of 1859, not necessary that the application for
execuition should be made with the intention of
enforcing the decree at that time. All that the
section required was that some proceeding should
have been taken to enforce the decree or to keep
it in force within three years. Koxdaraju
Venkata Subbaiya v. Rama Krishnamma alias
URtrPKRiSTNAiYA . " . . 4 Mad. 75

Ktjllyan Singh v. Bahvdi-r Sixo

Agra F. B. 163 : Ed. 1874, 122

The proceeding need not be successful. Kalee
Kishore Bose v. Prosono Chunder Rov

10 W. R. 248

AkBER GaZEE f.^UFEEZUN . 8 W. 11. 99

EsHAN Chunder Bose v. Juoqobundhoo Chose
8 W. R. 98

But see Lalla Bishen Dyal Singh v. Ram
SuNKUB Tewaree . . 6 W. R. Mis. 38

and Janardun Doss Mitter v. Rajah Rookmeb
BuLLUB . . . . 6 W. R. Mis. 48

11 G 2

( 7527 )

DIGEST OF CASES.

( 7528 )

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

Art. 119— contd.

3. NATURE OF APPLICATION— co«<cZ.

(a) Generally — contd.
The proceedings could be withdrawn when they
appeared to be useless, and it was not necessary to
prosecute them to a termination. Kullyan Singh
V. Bahadur Singh

Agra F. B. 163 : Ed. 1874, 122

3. Execution of de-
cree— Limitation — Effect of dismissal of application
for execution duly made. If an application for
execution of a decree is duly made so as to satisfy
the terms of Art. 179, paras. 4 and 5 of Sch. II of
Act XV of 1877, but is dismissed, such dismissal
does not prevent the apphcation from furnishing a
point of time for the beginning of a new term of
limitation. Shankar Bisto Nadgir v. Narsingh-
EAo Ram CHANDRA . . I. L. E. 11 Bom. 467

4. Ciinl Procedure

Code i^ict X of 1877), s. 374. The rule laid .down
in s. 374 of the Code of Civil Procedure (Act X of
1877), that where a suit is withdrawn with leave
to bring a fresh suit, the plaintiff shall be bound
by the law of limitation in the same manner as if
the first suit had not been brought, applies to
applications for execution ; and therefore in count-
ing the time of three years prescribed by the
Limitation Act XV of 1877, Sch. II, Art. 179, cl. 4,
an application allowed to be withdrawn must be
discarded as if it had never been presented. PiR-
JADE V. PiRJADE . I. L. R. 6 Bom. 681

5. Execution of de-
cree— Application withdrawn hy decree-holder —
Limitation — Civil Procedure Code, 1882, ss. 374, 647.
The holder of a decree for money, dated the 7th
June 1879, applied on the 20th July 1880 for execu-
tion thereof, but it appeared that in certain parti-
culars the decree required correction, and it was
therefore ordered, at the request of the pleader for
the decree-holder, that the apphcation should be
dismissed and the decree returned to him for amend-
ment. The next application for execution of the
decree was made by the decree-holder on the 19th
February 1883 : — Held, that, the application of the
20th July 1880 having been put in and afterwards
taken back by the decree-holder, the proceeding
became to aU intents and purposes as though no
application had been made ; that therefore it could
have no etTect as an application made in accordance
with law for execution within the meaning of Art.
179, Sch. II of the Limitation Act ; that, applying
the rule contained in s. 374 of the Civil Procedure
Code, in accordance with s. 647, to the apphcation
for execution of the 19th February 1883, the ques-
tion of hmitation must be determined as if the first
application had never been filed ; and that the
apphcation now in question was consequently
barred by limitation. Ramanandan Chetti v.

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

— Art. 179— contd.

3. NAl'URE OF APPLICAITON— co7z<rf.

(n) Generally — contd.
Periatamhi Shervai, I. L. B. 6 Had. 250, dissented
from. Pirjade v. Pirjade, I. L. R. 6 Bom. 681.
referred to. ELifayat Ali v. Ram Singh

I. L. E. 7 All. 35g

6- — Application t

execute decree — Abandonment of former a2)plic<ition
A decree-holder, having first asked the Court t<
attach certain immoveable properties, apphed su'
sequently for the issue of a warrant of arrest, an(
finally prayed the Court not to proceed with thos
two appHcations, but to allow him to attach certai
other properties ; and this prayer was allowed :-
Held, that this was virtually an abandonment of tb
two original applications' which were virtuall
struck off, and that the last apphcation was the on
which came within the meaning of the Limitatio
Act,1871, Ai-t. 167. Lala Huree Sttnkub Saho,
V. Krishna Kant Dutt , 25 W. R. 10

7. -; ; Application ' /,

execution — Withdrawal of application — Subaeque]
application for execution more than three yea\
after date of last proceeding — Civil Procedure Co'
{Act XIV of 1S82), s. 374. The plaintiff obtain.!
a decree in 1874, and apphed for its execution, fiii
on the 4th of August 1875, then on the 6th of Ju|
1878, and again on the 23rd of July 1880. T[
third application was withdrawn with permissi-
to apply again. On the 30th November 1882, t
plaintiff made his present application : —Held, tl
the present apphcation was not time-barred. I
rule laid down in s. 374 of the Civil Procedure Cc?
(Act XIV of 1882) — that where a suit is withdrat
with leave to bring a fresh suit, the plaintiff shal!
bound by the law of limitation in the same ma'
as if the first suit had not been brought — does
apply to applications for execution. Pirjaih
Pirjade, 1. L. R. 6 Bom. 6S1, dissented fn
Tarachand Megraj v. Kashinath Trimbak
I. L. R. 10 Bom

8. Application

execution withdrawn by decree-holder — Civil P:
dure Code, ss. 373, 374, 647. S. 647 of the (
Procedure Code makes ss. 373 and 374 apphcab!
proceedings in execution of decree. Kifayat Ai
Ram Singh, I. L. R. 7 All. 359, and Pirjm!
Pirjade, I. L. R. 6 Bom. 681, followed. '^ _
Chand Megraj v. Kashinath Trimbak, I. L.l'-^
10 Bom. 62, and Ramanandan Chetti v. Periatm
Shervai, I. L. R. 6 Mad. 250, dissented from. jA
first apphcation for execution of a decree was m-
drawn by the decree-holder on account of foioj
defects, the Court returning the apphcation, «*
without giving permission to the decree-hokk^
withdraw with leave to take fresh proceeding-—
Held, that, with reference to the second paragP"

( 7529 )

DIGEST OF CASES.

( 7530 )

LIMITATION ACT (XV OP 1877)-co«^i.
Schedule II — conld.

i- Art 119— contd.

' 3. NATURE OF APPLICATION— co)(/cZ.

(«) Gexjerallv — coidd.
of s. 373 read with s. 647 of the Code, the deeree-
nolderwas prechided from again applying for ex-
;cutiou ; but that, even assuming that permission
to apply again could be inferred from the action of
:he Court in returning the application, s. 374 was
ipplicable so as to make a subsequent appHcation
jresented five years after the decree barred by
'mitation, with reference to Art. 179 of the Limi-
•iion Act. Sarju Prasad v. Sita Ram

I. L. R. 10 All. 71

9- '■ An application

or execution cannot be thrown out summarily as
^)arred by limitation, because the decree-holder has
iailed to find any of his judgment-debtor's property
•r been baffled in his endeavours to satisfy his
lecree. Dheeraj Mahtab Chand v. Moorlee-
•HUB GnosE . , . . 15 W. R. 67

10. Obligations of

■ourt and creditor to issue execution. Though it is
'he duty of the Court to issue process after"appH-
ation has been made for execution, yet the law
lilly intends that when the decree-holder sees that
•be Court has taken no steps to issue any process,
^e shall be diUgent and move the Court from time
.|3 time, as required to keep him within the period of
Imitation. Gooroo Dass Dijtt v. Wooma Cuurn

«^' 13 W. R. 83

'■■■• Question of bond

J-Act XI V of 1S59, s. 20. Under Act XIV of
jSoO, no proceeding was effectual unless it was bond
\ie. Ram Sahai Sing v. Sheo Saiiai Sing

B. L. R. Sup. Vol. 492
1 Ind. Jur. N. S. 42
1 ABBUR Singh v. Motee Singh 8 W. R, 306
I 8.C on review . . . 9 W. R. 443

i GoLAM AsGAR V. Lakhimani Debi
I 2 B. L. R. Ap. 24

jGimoA Narayan Chowdhry v. Phul Moham-

JBD SlRK-AR . . . 2 B. li. R. Ap. 45

j Bharotea Debea v. Kurronamoyee Dossia

10 W. R. 229
Kalee Kishore Bose v. Prosono Chunder
°^ • • . . 10 W. R. 248

It was doubted whether the question of bond fides
as one of law or of fact. Tabbcr Singh v. IMo-

9 W. R. 443

The Court generally presumed that proceedngs in
suit were hand fide, and it lay on the party who
?P°g'^ed them to show or suggest something from
[hich the Court could infer that they were not bond
jte. Iabbur Singh v. Motee Singh

9 W. R. 443 I

LIMITATION ACT (XV OF \Sn)—conid.
Schedule 11—cjntd.

Art. VIQ—contd.

3. NATURE OF APPLICATION— co»<ti.
(a) Generally — contd.
Dheraj Mahtab Chund v. Modhoo Soodtjn
Bonnerjee ... 15 "W". R. 162

LooTE Ali v. Aboo Bibee . 15 W. R. 203
Ameerun Bibee v. Shibpershad Tha.koor
8 W. R. 199
Seith Kishen Chand v. Kour Askundeb
Gib . . 1 N. "W. 95 : Ed. 1873, 145

And then, of course, the decree-holder had an op-
portunity of explaining fully and clearly all his acts.
Seetanath Mundle v. Anund ChUxS'der Roy

15 W. R. 5
Uddoyto Churn Sahoo v. Ram Dhun Roy

16 W. R. 296
As to what was evidence of bond fides or the con-
trary : —

Kbipa Moyee Dossee u. Poobun Chunder Roy
11 W. I^. 403
TiTOORAM BosE V. Tarineechurn Ghose

15 W. R. 127
Ram Soondab v. Ram Canto , 11 W. R. 8
and R.\m Dhitn Goob v. Gooroodossee Dossee

13 W. R. 40
Bharotea Debea v. Kurrona Moyee Dassia

10 W. R. 229
Taruck Chunder Chuckerbutty v. Huro
Chunder Chuckerbutty . . 15 "W. R. 473
Raj Coomar Baboo v. Judoo Bungshee

14 W. R. U2
Ameer Ali v. Sahib Singh . 15 W. R. 530
In the'jnatter of Kaleedass Ghose

15 W. R. 356

Kisto Kant Boral v. Nistarinee Debia

8 W. R. 268

In judging of the bond fides of proceedings to ob-
tain execution of a decree, the whole course of those
proceedings was to be regarded. The fact that
unexplained delays have occurred during the pro-
ceedings in execution of the decree, or that some of
the proceedings were inetVectual, is not necessarily
evidence of a want of bond fide,s. Benoderam Sen
V. Bbojendro Narain Roy

13 B. L. R. P. C. 169 : 21 W. R. 97

s.c. in lower Court, Bbojendro Narain Roy r.
Benode Ram Sein . . . II W. R. 269

Under the present Act, no question of bond fides
arises.

12.

Sufficiency or

otherwise of mere applications — Act XIV of 1S59, s.
20. Under Act XIV of 1859, there were contrary
decisions as to jWhother a mere appUcatipn for

( 7531 J

DIGEST OF CASES.

( 7532 )

lilMITATION ACT (XV OP lSn)—contd.

Schedule II — contd.
■ Art. YlQ—cordd.

3. NATURE OF APPLICATION— co«/rf.
(a) Generally — conid.
execution was a proceeding to enforce the decree.
Cases which held it insufficient were —

Chundeb Coomar Roy v. Shttrut Soondery
Debia . . . . 6 W. R. Mis. 37

GOSSAIK GOPAL DUTT V. COTJRT OP WardS

21 W. R. 418

Idoo v. Besharoolla . 2 W. R. Mis. 10
Raj Bullob Buye v. Taranath Roy

3 W. R. Mis. 2

Sheo Pertab Lal v. Issur Roy

5 W. R. Mis. 23

See also Tabbub Singh v. Motee Singh

9 W. R. 443

Mahomed Baker Khan v. Sham Dey Koer

12 W. R. 2
Rajeeb Lochun Saha Chowdhey v. Maseyk
18 W. R. 193

An appHcation for execution of a decree followed
by issue of notice was held to be a proceeding to keep
aHve the decree. Luckee Narain CHUCKERBtTTTY
V. Ram Chand Sircar . 6 W. R. Mis. 63

Shoo Chand Chunder v. Grant . 7 W. R. 10

An appHcation by a decree-holder for issue of
notice and for enforcement of the decree by posses-
sion was held to be a proceeding to keep the decree
in force. Mookta Kashee Dabee v. Gtjnga Dass
Roy 14W.B. 483

Also an application for execution, and order to de-
posit tullubana followed by such deposit, and service
of notice, was sufficient. Teilochxin Chattebjee
V. Radhamoni Dossee . 6 "W. R. Mis. 74

13. and s. 19 — Execution of decree,

application for. The mere payment of a Court-
fee ia connection with execution proceedings,
with a view to obtain leave to bid for property
then up for sale in execution of a decree, does not
constitute ' ' the taking of some step in aid of execu-
tion " within the meaning of Art. 179, Sch. II of

LIMITATION- ACT (XV OP 1877)— cotKc

Schedule II — contd.
Art. 179— contd.

3. NATURE OF APPLICATION— con<rf.
(a) Generally — contd.
the Limitation Act (Act XV of 1877), so a.'o
prevent the execution of the decree being baid
within three years from the date of such p'.
ment. Toree Mahomed v. Mahomed Mabo
Btjx I. L. R. 9 Calc. 730 : 13 C. L. R 1

14. . Application n'le

to keep in force decree. A judgment-creditor n
finding that his judgment-debtor has no prop y
on which he can lay hands for the purposes if
execution, can always file an application simy
to keep in force his decree. Nilmoney SrH
Deo v. Nilcomul Tuffadar . 25 W. R. 16

Nature of a% 1

15.

cation under s. 179, cl. 4, of the Limitation Act, 17.
To satisfy the requirements of Art. 179 (4) of ia.
II of the Limitation Act (XV of 1877), there nst
be an application to the proper Court, and tie
runs from the date o£ the application, and.ncof
the order made upon it. The appUcaton need it,
however, necessarily be in writing ; where the w
does not require a writing, an oral application Si s-
fies its requirements. Where an order made inid
of execution is of such a nature that the Crt
would not have made it without an apphcationy
the judgment-creditor, it may be presumed it
due appHcation had been made for it. TruuK
Bepigi Patvardhan v. Kashinath VidyadilR
GosAVi . . . I. L. R. 22 Bom. 12

16.

Civil Procere

Code, ss. 231, 232, 623— Joint decree-holde—
Assignment by operation of law of a share in a de'.e.
A Hindu obtained in 1878 a decree for parti m
of certain property, and he now appHed in S8
to have it executed. He reHed in bar of Hmitaon
on an appHcation for execution made by his in,
who had obtained a decree against him in 1881 1 a
partition suit, whereby his right was establish€]to
one-fifth of whatever should be acquired byhe
father by virtue of the decree of 1878. The fatllr's
appHcation for execution in 1888 was held toe
barred by limitation in Ramasami v. Anda Pai,
I. L. B. 13 Mad. 347. On review it appeared jat
the son had appHed for execution of the y^o^o
decree, stating that his father would not joinim
in such application, and that notice was givej to
the father -.—Held, (i) that the son was an assiiee
by operation of law of one-fifth of the judgi'Qt
debt in the suit of 1878 ; (ii) that his applicJion
accordingly kept the decree aHve under Limit! un
Act, 1877, Sch. II, Art. 179, cl. 4, and the fatir 3
appHcation in 1888 was not barred by HmitaJn.
In this view no question arose as to the efie' of
expl. I, Art. 179 (as to joint decrees) : the app-a-
tion by the son for execution as transfere ot
part of the decree, having been an appUcatiq "^

( 7533 )

DIGEST OF CAiSES.

( 7534 )

•IMITATION ACT (XV O F 1877) -co««.
Schedule II — contd.

Art. 179— COT! W.

3. NATURE OF APPLICATION— co«<<i.

(a) GENEEAI,LY~CO«<<i.

accordance with law, was sufficient to keep the
lecree alive. Ramasami v. Anda Pillai

I. li. B. 14 Mad. 252

Reversing on review the decision in Ramasami
;.. ANDA Pillai . . I- L- B- 13 Mad. 347

irr ^_ • Civil Procedure

lode' (Act XIV of 1SS2), ss. 232, 248—Applica-
'.-m for execution by transferee of decree — Benami-
I'^r. The words ' ' in accordance with law ' ' in Art.
79 of Sch. II of the Limitation Act mean in accord-
ince with the law relating to execution of decrees.
Ijnder s.232 of the Civil Procedure Code, the Court
•xecuting the decree after giving notice to the
Ifcree-holder and judgment -debtor and hearing I
heir objections if any,"has an absolute discretion
0 allow, or to refuse to allow, execution to proceed
\X the instance of a person to whom a decree has
,ieea transferred by an assignment in writing.
|Vhen therefore a decree is transferred (really or
■ iiominally) by assignment in writing, and the
(Stensible transferec'executes the decree with the j
in-rmission of the Court, the proceedings taken and i
|lie application on which they are based are in
iccordance with law as between such transferee
|nd the judgment-debtor, although he may j
,e merely a benamidar, and such proceedings \
|nd apphcation, if made in proper time, are j
iUfiBcient to keep the decree alive. Denonath j
\'huckerbutty v. Lalit Coomar Gangopadhya, I. L. R. ,
.' Calc. f,33, and Gour Sundur Lahiri v. Hem
ilhunder Chowdhry, I. L. R. J6 Calc. 355, dis- j
iinguished. Ahdul Kureem v. Cliuldntn, 5 C. L. R. i
i'53, referred to. Pwnn Chmulra Roy v. Ahhaya
fhandra Roy, 4 B. L. R. App. 40, and Nadir^ |
l/o»«in V. Pearoo Thorildarinee, 14 B. L. R. 425 ,
\'Ote : 19 W. R. 255, followed. Under the circum- j
jtances, apphcation for execution by the trans-
l?ree of a decree was held to be not barred under

''ft. 179 of Sch. II of the Limitation Act. Bal-
nra I)as v. Bedmati Koer

I. L. R. 20 Calc. 388

See Manikkam v. Tatayya

I. L. R. 21 Mad. 388

18. • .^—.Application in

ceordance with law — Succession Ctitijicate Act
^U of 1SS9), s. 4— Application for execution by
(gal representative of dicrce-holder witho-ut certi-
'Cate. An application for execution of a decree
ttBde by the legal representatives of a deceased
eoree-holder, without the production of a certifi-
■ under the Succession Certificate Act. 1889
■ I of 1889), is nevertheless one made " in
jrdance with law " within the meaning of Art.
179, cl. 4, of the Limitation Act (XV of 1877).
I^alkishan Shiwa Bakas r. Wagarsino

I. li, E. 20 Bom. 76

LIMITATION ACT (XV OF 1877)— row/J.

Schedule II — contd.
Art. 119— contd.

3. NATURE OF APPLICATION— ro7?/(/.

(a) Generally — covtd.

19.

Application

accordance with law — Civil Procedure Code (Act XIV
of 1882), ss. 365, 366— Succession Certificate Act
(VII of 1SS9), s. 4, cl. h and [Hi). On the 10th
January 1890 the heirs of a deceased decree-holder
(who herself had last applied for execution on the
19th March 1887) made an application for execution
of a decree asking for the arrest of the judgment-
debtor. At the time of this apphcation the heirs
had neither taken out a certificate under Act VII
of 1889 nor had they appUed for substitution of
their names on the record. The Munsif directed
the applicants to obtain a certificate, and on their
faiHng to do so, he rejected their apphcation for
execution on the 21st January 1890. On the 13th
September 1890 the heirs, having obtained a certi-
ficate under Act VII of 1889, but not having sub-
stituted their names on the record, appUed for
execution against the properties of the judgment-
debtor : — Held., that the apphcation of the 10th
January 1890 was one made in accordance witfi law,
within the meaning of Art. 179, cl. 4, of the Limita-
tion Act, and that therefore the application of the
13th September 1890 was not barred. Hafizuddix
Chowdhry v. Abdool Aziz

I. L. R. 20 Calc. 755

Application fo

restitution vnder a decree — Civil Procedure Code,
1S82, s. 5S3— Period of limitation. Applications
made to obtain restitution urder a decree in accord-
ance with Civil Procedure Code, s. 583, arc pro-
ceedings in execution of that decree, and are govern-
ed by the Limitation Act, Sch. II. Art. 179. Vfn-
kayya v. Ragavacharlu I. li. R. 20 Mad. 448

21, . Limitation Act

(Xv'of 1877), Sch. II, Art. 179 {4)— Execution-
Payment of bhatta—Xo fresh starting point An •
application for execution of a decree was made and
granted on the 4th November, 1897. The bhotta
(process-fee), however, was not paid to the 2\azir
until afterwards, namely, on the 8th November,
1897. There was no written anjilication in con-
nection with this payment, nor did it appear that
there was any oral apphcation at the time of the
payment, except such as might be inferred from the
fact of payment -.—Held, that such a payment of
bhatta did not constitute a fresh starting point from
which the period of limitation prcscribetl by Art. 179
of Sch. 11 to the Limitation Act (XV of 1877) began
to run. From the mere fact of payment of bhatta
an application such as is prcscribe<l by that artit'lo
cannot be inferred : at most, it would merely be
an application to receive the money, and the pay-
ment would be no more than the performance of a
condition es.'cntial to the older for execution. An
oral apphcation for execution answers the require-

( 7535 )

DIGEST OF CASES.

( 7536 )

LIMITATION ACT (XV OF 1877)— conid.

Schedule II— contd.
— Art. 179— co7itd.

3. NATURE OF APPLICATION— co«<d.

(a) Generally — cmtd.

ments of Art. 179. Malukchand Ratanchand v.

Bechar Natha (1901) , I L. R. 25 Bom. 639

22. ■ ■ . Execution of de-
cree— Application in accordance with Inw. A
petition in execution, presented by the vakil of the
decree-holder, duly authorized, is an application
" in accordance with law," within the meaning of
Art. 179 of Sch. II to the Limitation Act, though the
vakalat be not dated. Sitrramania CHETTrAR v.
Ramachandra Ayyar (1902)

I. L. R. 26 Mad. 197

23.

Execution of de-

cree— Limitation — Application to take some step in
aid of execution — Appeal from order in execution
proceedings. The prosecution of an appeal from
an order made in the course of proceedings in
execution of a decree cannot be looked on as an
appUcation in accordance with law to the proper
Court for execution or to take some step in aid
of execution within the meaning of Art. 179 of
the second Schedule to the Indian Limitation Act,
1877. Kristo Coomar Nag v. Mahahat Khan, I.
L. R. 5 Calc. 59), approved. Nanda Kishore
V. Sipahi Singh (1904) . I. L. B. 26 All. 608

24. ■ Application in ac-

cordance with Inw. A decree passed in a redemption
suit directed ' ' that the plaintiff do recover posses-
sion on payment of R865 :" Held, that the pay-
ment of the amount was a condition precedent to
the making of an order for the delivery of the pro-
perty but not to the making of an application for a
conditional order and that an application for execu-
tion of the decree without paying the amount was
an application " in accordance with law " within
the meaning of Art. 179, Sch. II of the Limitation
Act. Syed Hussain Saib Rowthen v. Rajago-
PALA MuDALiAR (1906) . I. Ii. R. 30 Mad. 28

25.

Decree— Execii

lion of decree — Application to execute the decree —
Application not accompanied by a certifiei copy of
the decree under execution — Application made " vn
accordance with lavf — Step-in-aid — High Court
Civil Circulars, Rule SO. On the 3rd February 1900
the decree-holder first applied to execute his decree.
In 1902 he again applied to execute his decree ; but
this second ayjplication was dismissed as it was not
accompanied by a certified copy of the decree (High
Court Civil Circulars, Rule 80). On the 18th June
1905 the decree-holder apphed for the third time to
execute the decree. The lower Courts held that the
application of 1902 not having been accompanied
by a certified copy of the decree was not one made
" in accordance with law," and that consequently
the third apphcation was barred by time: — Held,
that the application of 1902 though not accompa-

LIMITATION ACT (XV OP IQlly-cordd.

Schedule II — conid.
Art. IIQ— contd.

3. NATURE OF APPLICATION— con«i.

(a) Generally — contd.
nied by a copy of the decree, as required by Ru
80 of the High Court Circulars, was an applicatio
' ' in accordance with law ' ' within the meaning <
Art. 179, Sch. II of the Limitation Act (XV (
1877) ; and that, therefore, the third applicatic
was within time. Sadashivav. Ramchandra, 5 Boi
L.R. 394, not followed. Pachiappa Achari \
PoojaliSeenan, 1. L. R. 28 Mad. 5-57, followe,i
The proper view to take of Rule 80 of the Hi
Court Civil Circulars is not that it prescribes tn
essentials which an application for execution mu;
contain and which are necessary to constitu''
the application itself an application in aocorcj
ance with law, but that it rcquir
something further besides the application itsel
an accompaniment extraneous to the appUcatio'
as a condition precedent to further action by tl
Court executing the decree. The Limitation A
(XV of 1877) as an enactment of a restrictir
character must be strictly construed. Umiashomle^i
V. Chhotalal, I. L. R. 1 Bom. 19, followed. Rai
CHANDRA V. Laxman (1906) I. Ii. R. 31 Bom. It

26. — — '' Applicati

in accordance with law'' — Application by represent
live of decree-holder, whose name is not brought ■
the record, is an application in accordance with l(
—Civil Procedure Code {Act XIV of 1882), ■■
232, 36 '), 366. A decree c.ated 26th March 189S,
a certain suit, ordered that plaintiff do recover t

sum« of against defendants Nos. 1, 2, and

and the hypothecated property and it furtl)
ordered " that the plaintiff is not entitled to c:
cute the decree till fifth defendant's hypothecati
is discharged by him." The decree-holder havi
died, his widow who was not brought on the reco
appUed on the 12th February 1901 to execute t'
decree. The application was dismissed a.s the fif
defendant's hyp jthecation was not then discharge
but was only satisfied on the 29th October 19(
Th3 question arising in subsequent execution pi
ceedings whether the application of 12th FebriK'
1901 was one in accordance with law " within t
meaning of Art. 179 of Sch. II of the Limitati|
Act : — Held, that the application was ia accoij-
ance with law. The terms of the decree on
precluded recovery of the decretal amount frt
defendants Nos. 1, 2 and 3 and the hypothecat
property before the fifth defendant's d^bt was d
charged and such discharge was not a conditi?
precedint to an application for a conditional ore"
directing a sale on plaintiff paying off such de^
On the djath of the d)cree-hold3r the right ^
execute the decree devolved on his widow, who w
entitled, without being brought o.i the record.'
apply under s. 232 of the Code of Civil Pi'oced
for execution, as ss. 365 and 366 of the Cod3 of C;
Proced ire apply only to the case of a plaintiff dyl

( 7537 )

DlGEbT OF CASES.

( 753S

IMITATION ACT (XV OF 1877)— co/i<c/.
Schedule II — conid.

Art. 179— contd.

3. NATURE OF APPLICATION— con^tZ.

(a) Generally — conckl.
tiie judgment. Narayana Naick v. Karuppa
.'lai, Beferred Case No. IS of ISSO, followed.

■AGIBISWAMY NaIDU V. VeNKATACHELLAPATHY

. YAR{1907) . . . I. L. R. 31 Mad. 77

J7. Expl. 1 — Decree executed

t inst minor judgment-debtors — Saving of limilalion
■«; inst other judgment-debtors. WTiere a decree
- • passed against two persons who were minors
J , others who were majors, but the decree against
i minors was subsequently declared to be inopera-
1.?, and the decree-holder never took out execution
vhin three years from the date of his decree against
1, judgment-debtors other than those who were
a lors : Held, that in view of Article 179 (1) of the
s ind Schedule of the Indian Limitation Act the
8 plications for execution against the minors only
^ e applications in accordance with law and saved
>t, operation of limitation against all. Lalta
1 VSAD V. SuRAJ Kumar (1909)

I I. L. R. 31 AIL 309

,)) Irregular and Depectiye AprLicATiONS.

18. Irregular appli-

( on for restoration of execution case. A^'here
■t tain execution -proceedings had been .struck
< the file and the decree-holder applied that they
i;ht be restored, his petition containing not
t of the particulars set forth in s. 2U7 of the Code
f;)ivil Procedure, it was held that his appUcation
>'i not an application to execute the decree within
•t] meaning of the Procedure Code. Ramdhun
ijr V. Abdool Gunee . 9 W. R. 390

i'9. — ■ Application for

<:Uiion of decree irregularly made. A\'here an
> I'.cation for execution of a decree was defective
licgard to many particulars required by the terms
c. 212, Act VI II of 1859, and asked also for execu-
t,i of a share only of the decree, it was held
•I'j to be a proceeding within the meaning of s. 20,
J\ XIV of IS59. Where an apphcation for execu-
tji by a party representing himself to be the
T|Chaser of a decree was rejected on account of the
a licant's failure to produce evidence, as he was
•a,cted to do, in support of his claim, it was held
0|to be a proceeding properly taken to enforce
*|?cree. Oodoychand Luskur v. Nobocoomar
'jJuaANicK . . . . 10 W. R. 428

J"- — — — Civil Procedure

^f■, 1S,')9, 8. 212 — Application to execute decree.
Ljler Act IX of 1871, Seh. II, Art. 167, an appU-
c*jon for executing a decree is not a proper one
« -ss it is in accordance with the Code of Civil Pro-
^lire, s. 212. Quare : What is the ellect of that
A upon the High Court's decision as to the bond
f' ' "f proceedings to keep a decree in force ?

LIMITATION ACT (XV OF 1811)— contd.
Schedule ll~contd.

Art. VJQ—crjntd.

3. NATURE OF APPLTCATION-con<i.

(b) Irregular and Defective Applications —
contd.

(^OUREE SUNKUR TrIBEDEE V. AmAN AlI ChOW-

DHRY 21 W. R. 309

31.

AppUcntion for

execution of decree — Proceeding to enforce decree.
The " application " spoken of in Art. 1G7, cl. 4,
of Sch. II to Act IX of 1871 is not merely such
an apphcation as is contemplated by s. 212 of Act
VIII of 1859, but includes an appUcation to keep
in force a decree or order. The lauauage of Art.
167, cl. 4, of Sch. II to Act IX of 1871 is wide
enough to include any application to enforce or
keep in force decrees or orders, and consequently
an application to enforce or keep in force a decree
by the attachment of a portion of the property
of the defendant will keep the decree alive against
the residue of his property or his person. An order
for attachment of a pension in satisfaction of a
decree, obtained on the lOth December 1863,
was made on 16th April 1869. After the passing
of the Pensions Act (XXII of 1871), the Deputy
Collector refused to continue paying the pension
to the decree-holder, and returned to the Court the
warrant of execution issued under the order of 16th
April 1869 ; and an order, finally disposing of the
application for attachment, was made on 14th
June 1872. On 19th June 1872 the decree-holder
presented a fresh apphcation, praying that the
attachment of the pension might be continued, and
a letter be written to the Collector, directing hira to
continue to pav the pension to the decree-holder,
as directed by the order of 16th April 1S69. Held,
that such last-mentioned apphcation came within
cl. 4 of Art. 167 of Sch. II to Act IX of 1871 and that
consequently an apphcation, on 24th July 1874,
for execution of the decree of 10th December 1863,
was not barred. Held, also, that the decree might
properly be enforced against property of the defend-
ant, mentioned in the apphcation of 1874, other
than the property mentioned in the apphcations
of 1869 and 1872. Jamna Das r. Lalitram

I. Ii. R. 2 Bom. 294

32.

"Applying to

force the decree " — Application " to keep the decree in
force "—Act VIII of 1S69, s. 212. The words
" applying to enforce the decree " in Act IX of
1871, Sch. II, Art. 167, mean the apphcation (under
s. 212, Act VIII of 1859, or otherwise) by which
proceedings in execution are commenced, and not
apphcations of an incidental kind made during the
pendency of such proceedings. In cases governed
by Act IX of 1871, a decree-holder who has apphed
to the Court simpliciter " to keep the decree in
force " may, within three years from the date of
such last-named application, obtain execution

( 7539 )

DIGEST OF CASES.

( 7540 )

LIMITATION ACT (XV OF 1871)— contd.

Schedule II — contd.

Art. 179— contd.

3. NATURE OF APPLICATION— co«<(Z.

(6) Irregular and Defective Appucation'S —

confd.
of his decree. Chundek Coomar Roy v. Ehogo-

BCTTY PrOSONNO RoY

I. L. R. 3 Calc. 235 : 1 C. L. B. 23

Prabhacaea Row v. Potaknah.

I. Ii. B. 2 Mad. 1

33. Application for

execution of decree — Non-compliance with provision
of Civil Procedure Code, 1877, s. 235. An applica-
tion for execution of a decree which does not com-
ply in every particular with the requirements of s.
235 of the Code of Civil Procedure, and which,
having been returned to the judgment-creditor
for amendment, has not been proceeded with, may
still suffice, under cl. 4, Art. 179 of Sch. II of the
Limitation Act, to keep the decree ahve. Ramanan-
DAK Chetti v. Pariatambi Shervai

I. Ii. K. 6 Mad. 250

34. Formal defect in

application for execution — Application not in
accordance with s. 235 (/) of the Civil Procedure
Code. On an apphcation for execution of a decree
it appeared that the only previous application for
execution which had been made within a period of
three years had been defective, by reason of its
not containing the particulars required by Civil
Procedure Code, s. 235 (/), and had been returned
for amendment, but had not been amended. Held,
that the present application was not barred by
limitation. Rama v. Varada

I. Ii. E. 16 Mad. 142

35. Proceedings to

keep alive decree — Irregularities. Proceedings in
execution originating in lUegaHty, and which have
been the subject of contests by the judgment-
debtor, and are still under consideration in appeal,
cannot be regarded as bond fide proceedings to keep
ahve the decree. Tiluck Chunder Gooho v.
GouRMONEE Debee . . 6 "W. R. Mis. 91

But see Gotjrmonee Debee v. Neel Madhub
Goono . . . . 5 W. R. Mis. 3

36.

Application for

execution of decree. An apphcation for execution
of a decree was made in February 1868, and pro-
ceedings sufficient to bar limitation under Act XIV
of 1859 were going on tiU 30th September 1871.
The next application for execution of the decree,
made in October 1 872, was held to be barred under
Act IX of 1871, as more than three years had elaps-
ed on that day from the date of the apphcation
in February 1868. Held, following Gouree Sunker
v. Arman All, 21 W. B. 309, that an informal
application, made on 30th September 1871, in the
nature of a petition to the Subordinate Judge to
give effect to the apphcation of February 1868 by

lilMITATION ACT (XV OF lS77)-conid.

Schedule 11— contd.
Art. 179— contd.

3. NATURE OF APPLICATION— co«<rf.

(b) Irregular and Defective ArPLicATioN-

contd.
overruhng certain objections of the Collector a I
enforcing execution of the decree, was not an api-
cation for the execution of a decree such as could r
hmitation under Act IX of 1871. JiBHAiM.4r-
pati v. Parbhu Bapu . I. L. R. 1 Bom. )

37. Application r

execution. A bond fide application for exccu a
held to be a proceeding within the meaning of s. -,
Act XIV of 1859, even though it had to be amen rl
by order of Court. Mahomed Samee Bhooy.'.
Alahee Buksh Chowdhry . 10 "W . R. fS

38.

Proceedings o

keep decree in force — Application for execution d
notice. An application for execution was made I a
mooktear, and admitted by the Judge, who ord( d
a notice to issue to the judgment-debtor. Hi,
that such application could not afterwards be^t
aside for irregularity, and that it was sufficien o
keep the decree alive. Dhanpat Sinoh v. L\-
nand Singh . 2 B. L. R. Ap. 18 : 11 W. R. 8

39. Application -ir

execution insufficiently stamped. An insufficieiy
stamped apphcation for execution of a decree ry,
under Art. 179 of Sch. II of the Limitation -t,.
1877, suffice to keep the decree alive. Rama:>u
Ayyan v. Seshayyangar . I. L. R. 6 Mad. 31

40. ■ Failure to |o-

duce certificate. The Civil Judge rejected an a ;|li-
cation for execution of a decree, on the ground !at
it was barred by the Law of Limitation (s. ■20,jct
XIV of 1859). A prior apphcation was mad'in
1864, and less than three years before the pr^
application, but the Civil Judge treated tlie t^
apphcation as nugatory, because it was not a^
panied by a certificate which the appUcant
been directed to produce by an order of Court i
upon the petitioner's apphcation for execuli
1862. Held, by the High Court, that the applir
right to have process of execution issued wa
barred. Kendiga IMadi Chetti v. Soobham

5 Mad.f6*

See I/Aksiiamma v. Venkataragava CnAhR-
4 Ma.|89

41. — Application for

execution of decree. An application for execwo
having been made within three years fronp™
date of confirmation of a decree, and im"^
served, the case was struck off on accouj of
the decree-holder's default to pay the necejary
fees. A second application made within three f^^
of the tirst application was also struck off, bcfuse
the judgment-creditor did not send a person topini'
out the judgment-debtor. A third appli''"^"
was then made within three years of the s()ncl.

{ 7541 )

DIGEST OF CASES.

( 7542 )

; MITATION ACT (XV OF l8n)-contd.

Schedule 11— contd.

Art. n9~co7itd.

3. NATURE OF APPLICATION— co/ifci.

Ibregulab and Defective Applications —
contd.

ild, that the third application was in time, and
1 1 no question of bo)td fides arose in the case.
] RACHO KooER V. Chutookbhooj Sahoy

24 W. R. 459

:2. Application under

t>32. Civil Procedure Code, IS, 7. Where an
a I. .cation for execution of a decree made under s.
J of the Civil Procedure Code was disallowed, on
t ground that the applicants had not shown, as
ty alleged, that they were the persons beneficially
: -rested in a transfer of the decree taken in the
t ami name of a third person, and within three
J rsfrom tlie date of such application a subsequent
a lication was made by them, in which their
a Ration was proved to be correct : — Held, that the
f< iier application had been a proper application
fl lin the meaning of the section and that the latter
fl therefore under Art. 179, Sch. II of the Limita-
ti Act (XV of 1877), within time. Abdul
K'lEEM v. Chukhun . . 5 C. L. R. 253

lilMITATION" ACT (XV OF IQll) -contd.
Schedule II — contd.

;3.

Application " in

'-^Mwn of decree— Omission to specifij mode of
tt\^ttion~Application to wrong Court. A bare re-
Vit m an application for the execution of a decree
« the amount of the decree might be recovered,
*i out any specification of the mode in which the
^|t was desired to aid in its recovery, is not an
Hjication for the execution of, or a proceeding to
™ -ce, or keep in force, the decree, and the defect
« t cured by the circumstance that the appli-
^in asked or suggested that a notice should be
^, u to the judgment-debtor. Franks v. Nuneh
7 W. W. 79

ayrdance with law " — Civil Procedure Code,
Cil— Transfer of Property Act {IV of 1S82),
^•\9. Q'he expression " applying in accordance \
wji law " in Act XV of 1877, Sch. II, Art. 179 (4),
a ns applying to the Court to do something in i
e:''ution which by law that Court is competent to
<!■; It does not moan applying to the Court to do
«{cthing which, either to the decree holder's |
ri-'';t knowledge in fact or from his presumed ;
kiLvledge of the law, he mu.st have knowTi the Court j
»■' incompetent to do. Held, therefore that an ap- |
plktion to have the judgment-debtor arrested in
e: ution of decree, which was in contravention of
"iternis of s. 341 of the Civil Procedure Code, and j
Application to bring mortgaged property to sale, :
*■ h was in contravention of s. 99 of the Transfer '
ol'roperty Act IV of 1882, were not applications
I accordance %\ith law " within the meaning of
•\ 170(4) of fcch. II of the Limitation Act. Chat-
\EWAL Singh . . I. L. R. 12 All. 64

Application for

Art. 119— conUl.

3. NATURE OF APPLICATION— cowW.

(h) Irregular and Defective Applications —
contd.
45. . Informal appli-
cation for execution of decree. An application for
execution of a decree having been made on the 2r)th
September 1879 within time, but not in the form
prescribed by the Civil Procedure Code, the Court
allowed it to remain on the file until it should have
been amended, and it was accordingly amended on
the 2 1st April 1881, more than three years after the
date of the decree. Held, that the former application
could not be treated as a nullity, but mn.st, though
informal, be taken as a step in execution. ^Jahomed
V. Abedoollah . . 12 C. L. R. 279

46. — Omission to de-
scribe the property to be attached — Civil Procedure
Code, ISS-J, s. •J4-5 — Limitation. A decree-holder,
on the 8th July 1885, applied for execution of a
decree dated the 10th July 1873, omitting to set
out specifically in such application a description
of the immoveable property sought to be attached.
On the 24th July he applied for and obtained one
month 's time to file a list of these properties ; and
on the 7th August, after filing the list, applied for
the attachment and sale of such properties. The
Judgment-debtor contended that execution was
barred by limitation. Held that the omission to
file on the 8th July the list describing specifically
the properties sought to be attached, as a mere de-
fect of description which could be remedied under
s. 245 of the Code of Civil Procedure by allowing
an amendment to be made ; and further that the
two applications of the 8th and 24th July should
be considered as one entire application dating
from the date of the 8th July. Maho^ncd v. Abedool-
lah, 12 C. L. R. 279, followed. MacGregor v.
Taeini Churn Sircar . I. L. R. 14 Cale. 124

See the Full Bench case of Asgar Ali v. Troil-
OKVA Nath Ghosk . I. L. R. 17 Calc. 631

47.

Defectirt appli-

cation returned for amendment — Civil Procedure
Code, 1SS2, ss. 235 and 246. In execution of a
decree, the judgment-debtor's property was put
up to sale on the 15th December 1890, but no sale
took place, and the case was struck off. On the
7th October 1893, an application for execution was
presented, but all the particulars required under
s. 235 of the Civil Procedure Code not having been
given, the application was returned to the decree-
holder for amendment under s. 243, and a week's
time, from 30th October, was allowed for the
purpose. The amended application was not put
in within the time lixed, but on the 10th January
1894, a fresh application was presented in due
form with the application of the 7th Ortober 1893,
attached thereto. Held that the application of the
7th October 1S93 was not made "in accordance
with law " within the terms of Art. 179 (4), Sch. II

( 7543 )

DIGEST OF OASES.

( 7544 )

LIMITATION ACT (XV OF 1817)— zontd.

Schedule II — contd.

. Art. V79— contd.

3. NATURE OF APPLICATION— conifZ.

(6) Irregular and Defective Applications —
contd.

of the Limitation Act (XV of 1877), and the exe-
cution was barred by limitation. Kifayat AM v.
Earn Singh, J. L. R. i All. 3J9 ; Fir jade v. Pirjade,
I. L. R. 6 Bom. 6 SI ; Asgar All v. Troilohjanath
Gfiose, I. L. R. 17 Calc. liSl, referred to. Syxid
Mahomed v. Syud Ahedoolah, 12 C. L. R. 279,
distinguished. Fuzloor Ruhman v. Altaf H ossein,
I. L. R. 10 Calc. 541, commented on. Rama v.
Varada, I. L. R. 16 Mad. 14-2, and Ramanadan
V. Periatambi, I. L. R. 6 Mad. 260, dissented
from. GoPAL Sah v. Janki Koer

I. L. R. 23 Gale. 217

48.

Application for

execution of decree not materially defective — Appli
cation returned for amendment — Code of Civil Pro-
cedure {Act XIV of 1SS2), ss. 235 and 24S. The
plaintiff obtained a joint decree against defendants
for possession of immoveable property and damages
on 21st May 1886. Against that decree all the
defendants except defendant No. 1 appealed, and
on 2nd July 1887 so much of the decree was reversed
as made the appealing defendants liable for damages,
but was affirmed in all other respects. A second
appeal by the plaintiff from the decree of the
Appellate Court was dismissed by the High Court
on 9th July 1888. An application for execution of
the decree was made by the plaintiff on 7th July
1891 within three years from the date of the final
decree, dated 9th July 1888. The prayer was for
issue of notice on the judgment-debtor for delivery
of possession, for attachment and sale of certain
immoveable properties, for realization of costs and
damages decreed. Notice under s. 248 of the Code
of Civil Procedure was issued on the judgment-
debtors on 8th September 1891. The judgment-
debtors objected that, as the application did not
contain the right number of suit and date of decree,
it was not in accordance with law, and as no other
application had been made within three years from
date of decree, the execution was barred by limi-
tation. Held, that material defects only could
vitiate an application, and as the defects in the
present application for execution were not material,
it was not barred by limitation. Asgar Ali v.
Troiloh/a Nath Ghose, 1. L. R. 17 Calc. 631, and
Gopal Shah v. Janhi Koer, 1. L. R. 23 Calc. 217,
distinguished. Gopal CutTNDRA Manna v. Gosain
Das Kalay . . I. L. R. 25 Gale. 594

2 G.W. N. 556

49.

Application for

execution giving wrong date of decree — Amend-
ment allowed after limitation — Amendment re-
lating hack to former applications. J obtained a
decree on two mortgage-bonds on the 25th Novem-
ber 1885. That decree was set aside, but another
■decree was passed in his favour on the 21st of Sept-

LIMITATION AGT (XV OF I877)-co;i,

Schedule II— canid.

Kvt.VIQ— contd.

3. NATURE OF APPLICATION— con/i.

(6) Ieeegulab and Defective Applications

contd.
ember 1886. The decree-holder made sev.il
appUcations to execute the decree, but in ei
described the decree as of the 25th November Ui.
On the third application the judgment-del r
objected that the application was time-ban..
The apphcation was allowed to be amended, jt
the amendment took place after the expiry of 1 i-
tation. Held, that the amendment would ii .e
back to the preceding appUcations, and execuin
of the decree was not time-barred. Ajudhia In
v. MiLhammad Munir, All. Weekly Note^ (?<?)
112, followed. JiwAT DuBE v. Kali Cha.n
Ram . . . I. L. R. 20 All. '8

50. Application'n

accordance withSlaw. In execution of a dec;,
dated 7thiMay 1877, an application was made uur
a general power-of-attorney from A and B, thes-
cree-holders on the 19th February 1878. B cd
on the 12th February, but this fact was urjtn.ii
to the pleaders who made the apphcation. je
next apphcation was made on the 28th July llO.
On an objection taken that the latter apphcam
was barred by hmitation, on the ground thatie
•former application was a void application: Id,
that the apphcation of the 19th February 78
was an apphcation in accordance with law wiin
the meainng of cl. 4, Art. 179, Sch. II of the Lit-
ation Act, XV of 1877. Amikunnissa Ciw-

DHEANI V. AhSANTJLLAH ChOWDHKI

13 C. L. 118

51.

Execd

decree — Amendment of revenue record — Apjih^
for execution not " in accordance with law-
holders of a decree made by a Civil Court. •
directed, inter alia, that they should be maint
in possession of a share of village, by canct I
of the order of the settlement officer direct i
entry of the judgment-debtor's name in the ie\
registers in respect of such share, applied f-
cution of such decree, improperly asking the '
executing the decree to order the Collector tu a
such entry by the substitution of their nam
that of the judgment-debtor in respect vi
share, instead of asking it to send such otti "
copy of such decree for his information, wif »
view to such amendment. Held, that such m-
cation, not being one in accordance M'ith law ["i*
in the meaning of Art. 179, Sch. II of Act IJ ot
1887, was not one which wotdd keep such decj) m
force. Muhammad Umar v. Kamila Bibi I

I. L. R. 4A|84

52. ■ Infortml (ipli-

cation for execution. An application for exec-ion
of a decree having been made on the 19th J*'*7
1882 within time, but not in the form presd'Oa

( 7545 )

DIGEST OF CASES.

( 7^0 )

L IITATION" ACT (XV OF 1871)— cotibl.
Schedule II — contd.

Art. 179— contd.

i. NATURE OF APPLICATION— con^cZ.

(6 RREOtLAR AND DeFECTIVK APPLICATIONS —
C07ltd.

b' he Civil Procedure Code, inasmuch as it did
nt contain the right number of the suit in which
tb decree was passed, an order was made on the
IJ January directing the petitioner to amend the
ajication within four days by giving the correct
ni ber. That order was not complied with, and
tb letition was left on the file of the Court without
bt ■: disposed of in any way till the 21st Septem- |
b€'»882, on which date, more than three years ]
lufag then elapsed since the date of the decree, it i
tn' returned to the vakeel of the petitioner for
aindment within eight days. The required
ai idment was made, and the application again
pi'd on the tile of the Court on the 22nd Septem- I
be On an objection being taken that the decree !
wibarreJ, and the execution could not issue : — |
H.. following the principles laid down in the [
ca,of Mahomed v. Abedoollah, 12 C. L. B. 279,— •
CT. that it was the duty of the Court to dismiss I
tb'ipplication when it found that it was informal, j
ar,thus to give the applicant an opportunity of
pi nt; in a proper application, and that the decree-
should not be made to suffer for such omis-
tlie part of the Court, — that the former
"II could not, though informal, be treated
:ny ; and that the application on the 22nd
L-i- must bo taken as lia\'ing been presented
' object of amending the original informal
on ; and that it was in continuation of the
ii-proceeding commenced, however infor-
11 the 19th January 1882 ; and that conse- i
Uie decree was not barred. Held, also, that j
of the application having been returned to
1 for amendment instead of being amended
Uie file of the Court, made no di tie re nee to
Nation ofthe above principle. b'uzLOOR
- V. Altaf Hossen I. Ij. R. 10 Calc. 541

lilMITATION ACT (XV OF 1Q77)— contd.
Schedule II — contd.

Art. VJQ— contd.

Dekkhan Agricul-

Relief Act, XVII of 1S79, s. 22—Concili-
loement — Civil Procedure Code (Act XIV of
• 261 — Application for attachment of an |
n-isVs property. A concihation agreement,
.0 2nd October 1880, between the decree- |
lid the judgment-debtor, stipulating that
Mier should allowa remission of RIO and
■' ■ should execute a document for the remain- j
■ of R90, to be paid in 1882, was filed in I
i 20th November 1880. In 1883 the decree-
•■"■esented two appl-cations for satisfaction
i-reed debt of R90 by attachment of the
property, which apphcations were granted, •
■ not prcceeded with through some default
'•ree -holder. On 4th June 1885 the decree-
iiade the present apphcation, praying that
<• 21)1 and 262 of the Civil Procedure Code [
IV of 1882) an order directing the judgment- \

3. NATURE OF APPLICATION— conW.

(6) Ireeoular and Defective Applications —

contd.
debtor to execute a bond in terms of the conciliation
agreement might be made, or that the Court might
execute one on his behalf. On reference by the
Subordinate Judge under s. ()17 of the Civil Proce-
dure Code (Act XIV of 1882) to the High Court :—
Held, that the applications in 1883 for attachment
of the debtor's property were not "in accordance
with law," being forbidden by the Dekkhan Agri-
culturists' Relief Act, XVII of 1879, s. 22 ; and
that the present apphcation under s. 261 of the
Civil Procedure Code (Act XIV of 1882) was there-
fore too late under cl.- 4, Art. 179 of S'ch. II of th&
Limitation Act XV of 1877. Chati:r KnrsHAL-
CHAND V. Mahadtj Bhagaji I. Ii. R. 10 Bom. 91

54. ■ Application by

pleader for execution after decree-holder's death.
Where a decree -holder died without taking out exe-
cution of his decree, and two days after his death
his pleader made an apphcation for execution -on
his behalf, this being the first application of the
kind : — Held, that, inasmuch as the authority of a
pleader ceases at the moment of his chent's death,,
the apphcation was invalid, and was not such an
application or step in aid of execution of the decree
as coulcl save a subsequent apphcation for execu-
tion by the decree -holder's heirs from being barred
by hmitation. Kalltj v. Muhammad Abdi-l
Ghani . . . . I. L. R. 7 All. 564

55. Decree m favour

of firm in name of agent — Application for execution
by another agent. A decree was passed in favour of
a firm in the name of an agent of the firm. The
second and subsequent applications for execution
were made by an agent of the firm other than the
agent named in the decree. Certain persons, alleg-
ing that they were the proprietors of the firm, ap-
plied for execution of the decree. The application
was refused, on the ground that the proceedings in
execution taken by the last-mentioned agent were
invahd, and execution of the decree was therefore
barred by limitation. Hehl, that such proceedings,
however' irregular, were not invalid. Lachman
BiBi V. Patni Ram . . I. L. R. 1 AU. 510

56. '- Legal represent-
ative applying for execution without her name beiiig^
on the record. A obtained a decree against B in
June 1879, and in execution thereof some time in
1879 attached certain moneys in Court which be-
longed to his judgment-debtor, and obtained an
order for payment out to him. Before receiving
payment, A died, and the execution-proceedings
were struck off on the 31st January 1880. On the
14th June 1880 and on the 22nd June 1881, the
widow of A, who had taken out probate, applied
to withdraw this money from Coui-t, and on the 1st

( 7547

DIGEST or CASKS.

7548 )

LIMITATION ACT (XV OF 1877)— cowid.
Schedule II — cmtd.

Art. nd—co7itd.

3. NATURE OF APPLICATION— cowii.

(6) lRREGtrL.4B AND DEFECTIVE APPLICATIONS —

conti.

of April 1882 applied for a copy of the decree ob-
tained by A for the purposes of execution. At the
time of these three applications the widow had not
applied for substitution of her name on the record
in the place of her deceased husband. On the 5th
January 1884 the widow applied to have her name
substituted on the record, and for execution.
Held, that the application was barred, as the pre-
vious applications were not, under the circum-
stances, step; in aid of execution. Gunga Per-
SHAD Bhoomick V. Debi Sundari Dabea

I. L. R. 11 Calc. 227

57. - — Applications for

execution made without any representative of the
deceased judgtnent -debtor being brought on to the
record — Civil Procedure Code, 18S2, ss. 234 and
248. Applications for the execution of a decree
made after the death of the judgment-debtor, and
without either any representat ve of the judgment-
debtor beii\g brought upon the record, or there
being any subsisting attachment of the property
against which execution is sought, are not good
applications for the purpose of saving limitation.
Sheo Prasad v. Hira Lai, I. L. R. 12 All. 440,
distinguished. Madho Prasad v. Kesho Prasad
I. L. R. 19 All. 337

58.

Application for

execution against wrong person — Decree against a
minor — Application for execution against minor's
mother personally, but not as his guardian. On
the 31st .July 1879 a decree was passed against N, a
minor, represented by his mother and guardian C.
In December 1880, the first application for execution
was made. Through mistake execution was sought
against C herself as ' widow of B,' and not as
guardian of the minor N. That application was
granted, and certain property belonging to the
minor was attached. On the 29th November 1883
the second application for execution was made
against the minor as represented by his guardian
€. The present application for execution was made
on the 3rd December 1884. This application was
rejected as time-barred by the District Court on
appeal, on the ground that the first application,
having been made against a wrong person, could
not be taken into account ; that therefore it coidd
not keep the decree alive, and that the present
apphcation was barred. Held, reversing the deci-
sion of the lower Court, that the decree-holder
ought not to be deprived of the fruit of his decree
on account of a technical defect in his application
of 1880. The minor was substantially and for all
practical purposes represented by his mother.
Hari v. Narayan . I. L. R. 12 Bom 427

LIMITATION ACT (XV OF 1877)-con
Schedule II — contd.

Art, 179— conti.

3. NATURE OF APPLICATION— confrf

(b) Irregular and Defective Applicatio:-
conld.

59. — ■_ Application k

relief outside the decree — " Step in aid of executi..
The application for execution contemplatec i
clause {4) of Art. 179 of Sch II of the Limit o
Act (XV of 1877) must be one made in accord o
with law, and asking to obtain some relief giveb
the decree, and to obtain it in the mode thg h
law permits. A decree provided that the defe; n
should pay the plaintiff R156 within one m(tl
and that, on receipt of this sum, the plati
should execute a deed of sale to the defenml
The decree was dated 29th January 1881. 'h
first apphcation for execution was made on the it
January 1884, but dismissed for plaintiff's deill
The plaintiff made a second application, (iei
22nd January 1887, praying to be put in posseioi
of a certain house which was not awarded bth^
decree. This application was rejected. Orth^
23rd June 1887, the plaintiff made a third jpli
cation for execution of the decree. Held, ha
this apphcation was barred by limitation, hinj
been made more than three years after the d;) o
the first apphcation. The intermediate apica
tion was not an application for execution, r i
step in aid of execution, of the decree, inasuci
as it asked for what the decree did not givi 1
could not therefore keep the decree alive undeArt
179, Sch. II of the Limitation Act (XV of 77)
Pandarinath Bapuji v Lilachand Hatib I
I. L. R. 13 Boir23^

60. — Execution . de

cree. Held, that an apphcation for executio bf t
decree, which was defective only in that it ; ' '
incorrectly tlie date of a previous applicati
execution (such date being, under the circum^
of the case, quite immaterial), and which w;
ended within three days of an order of the ex(
Court requiring the amendment, could :
treated as an application not in acc'
with law, within the meaning of Art. 17!'
second Schedule to the Indian Limitatio;
1877. Gopal Chunder Manna v. Gosain Das
I. L. R. 25 Calc. 594, followed. Kalka D
Bisheshar Patak (1901)

I.L.R.23A;102

6\.

cl. (4).-

Procedure Code, ss. 36 and 37 — Execution oj
— Limitation — Application not in accordan
law — Application made by general attorney,
holder being at the time within the jurisdictio^- '"
Court. Held, that an application in executiq of »
decree was not an application " in accordanc *Jth
law," within the meaning of Art. 179 of the cond
Schedule to the Indian Limitation Act, 1877>vben
it was made by a general attorney of the "^ee-

( 7549 )

DIGEST OF CASES.

( 7550 )

[MITATION ACT (XV OF 1817)— contd.

Schedule II — contd.
Art. 119—con'd.

3. NATURE OF APPLICATION— co«cR

iRKEtJULAR AND DEFECTIVE APPLICATIONS —
COTlcId.

Ider at a time when the decree-holder himself
3 resident within the local Umits of the juris-

.,:tion of the Court executing the decree.
.'BAM Lal v. Umkao Singh (1901).

I I. L, R. 23 All. 499

4. STEP IN AID OF EXECUTION.

(o) Generally.

.. Proceeding to en

j c decree by interested party. In order to enforce
Cj,o keep in force a decree it was not necessary
t't the proceeding aUnded to in s. 20, Act XIV of
]''9, should have l)een taken by the particular
l)ty seeking to execute : it was sufficient if any
' interested had taken any proceeding. Naraix
Sreenath Mittee . 9 W. B. 485

Eight to enforce

a,\c. In order to keep a decree alive, s. 20 of
/; XIV of 1859 does not require more than that
*ie actual proceeding should bs taken, which, if
ecessfnl, would result in the discharge or partial
dtharge of the judgment-debt. The proceeding
tid not be by a person legally and rightfully en-
t^Kl to tlie decree. Nadir Hosseinv. Pearoo

I'lVFLD-UilNEE

14 B. L. R. 425 note : 19 W. R. 255

Defect in applica-

• ■ ,''■ execution. Where there has been in fact an

"ibcation for execution made by the party entitled

Wiake it, it is to be regarded as a step in aid of

i III within the meaning of the Limitation Act,

'. although by mistake a deceased judgment-

i^-* named as tlie person against whom execu-

l\ IS sought. Samia Fillai v. Chockalinoa

CJTTiAB . . . I. L. R. 17 Mad. 76

Application no

■'e-holder in the record — Application to exe

Tec. An apphcation not made by the decree

•■ ■■! at the time on the record cannot be con

Bj'efl to be an application to execute the decree

D uo Roy v. Doolla Roy . 24 W. R. 10

• Proceedings to

decree in force. A decree was obtained on 6th

• ••^•>1, and in February 1864 a pretended pur-

"f it sought execution. On 15th March
■ lie original deciee-holder herself applied for
"^'on of the same decree against certain of the
nient-debtors without mentioning the appell-
j who was one of thom. Subsequent proceedings
|nerent times were taken between her and the
icd purchaser in order to ascertain which of
: was really entitled to execution of the decree.

LIMITATION ACT (XV OF 1877) -contd.
Schedule II — contd.

Art. 17Q— contd.

4. STEP IN AID OF EXECUTION— con/</.
(a) Generally — contd.
and on the 6th March 1867 her representatives got
a decree setting aside the alleged purchase, and
declaring that they might execute the decree of
6th June 1861. Accordingly, on 31st August 1868,
an apphcation was made by her representatives
for that purpose. Between the 15th March 1864
and 31st August 1868, no proceedings had been
taken in execution. Held, that the apphcation
was not barred by hmitation ; that no execution
could be given till it was ascertained who were the
actual decree-holders ; and that the intermediate
proceedings for that purpose were bowi fide prrjceo 1-
ings within s. 20, Act XIV of IS59, for the purpose
of keeping the decre.' in force. Abdul (Iunny
V. PoGosE 4 B. L. R. A. C. 1 : 12 W. R. 438

6. Application for

execution of decree by benamidar. An apphcation
for execution of a decree by a mere benamidar is not
an apphcation in accordance with law within the
meaning of Art. 179, cl. 4 of Sch. II of the Limi-
tation Act (XV of 1877), such as to afford a fresh
starting point for hmitaLion. Denonath Chucker-
butty v. Lallit Coomar Ganoopadyha.

I. L. R. 9 Calc. 633 : 12 C. L. R. 146

7. ■ — — Application for

execution by benamidar — Application not in accird-
ance with law. In a suit brought for declaration of
the plaintiff's right to hold certain property free of
a mortgage-decree, which had been purchase I by
one G on 13th August 1878, in execution of which
decree several appUcations were made to have t!ie
name of G substituted for that of the original decree-
holder, but in none of these applications was any
further step taken towards execution of the decree,
or any order made for substitution of the name of
G until 18th July 1885, when after notice under s.
232 of the Civil Procedure Code G's name was
substituted as decree-holder, and execution taken
out against the mortgaged property, G was found to
be only a b3namidar so far as his purchase of the
mortgage decree was concerned. Held, that, G
being merely a benamidar, the appUcations made
by him for execution of the decree and for substi-
tution of his name as decree-holder under s. 232 of
the Civil Procedure Code were not appUcations made
in accordance with law within the terms of Art.
179 of the Limitation Act, 1877, so as to prevent
the operation of the law of limitation. Exe-
cution of the mortgage-decree was therefore
barred. Abdul Kureem v. Chukhun, 5 C. L. R.
253 ; Dinonath Chuckerbutty v. Lallit Coomar Gangn-
padhy i, I. L. R. 9 Calc. 033 ; 12 C. L. R. 145 ; and
Mi.1. A p. 4'i3 of 1SS5, unreported, followed. Puma
Chundra Roy v. Ablwya Chandra Roy, 4 B. L. R.
A p. 40, and Nadir Hossein v. Pearoo Thovildarinee,
14 B. L. R. 425, dissented from. The mortgage-

{ 7551 )

DIGEST OF CASES.

( 7552

LIMITATION ACT (XV OF 1877)— contd.

Schedule 11— contd.

Art. 179— contd.

4. STEP IN AID OF EXECUTION— co«<(^.

(a) Geneeally — con'd.
decree having become inoperative, the plaintiff
A, though a purchaser pendente lite, was no longer
bound by it, and the defendant therefore was
not entitled to enforce the mortgage as against him.

GOTTR StINDEB LahIRI V. HeM ChUNDER ChOVV.
DHTJEY. GOTJR SuNDER LaHIRI V. HaFIZ MaHA-

MED Ali Khan . . I. L. R. 16 Gale. 355

See Balkisiiek Das i;. Bedmati Koer

I. L. B. 20 Gale. 388

Proceeding to en-

force decree. Steps taken t(jwards placing the
assignee of a decree in the position of the original
decree-holder did not constitute proceedings to en-
force, or to keep in force, the decree within the
meaning of s. 20, Act XIV of 1859. Brojo Lall
Paramanick v. Ram Tarun Gossaii^-.

10 "W. R. 127

9. ■ Decree — Appli-

cation to enforce decree — Application bij heir of de-
ceased decree-holder to substitule his name on the
record. G obtained a decree against the defendant
on the 29th November 1867, and applied for exe-
cution of it on the 23rd July 1870. After G's
death, his son made an application, on the 10th
March 1871, praying for substitution of his name
in the place of his deceased father, and that the
money due under the decree should be recovered
and paid to him as heir of the original plaintiff.
On the 3rd January 1874, and several times subse-
quently, the son applied for execution of the decree,
his last application being in 1878. Both the lower
Courts held that the application of the 10th March
1871 was not an ajtphcation " to enforce or keep
in force the decree," that the application of the
3rd January 1874 was therefore barred by limita-
tion, having been made more than three years
after the first application of the 23rd July 1870,
and that consequently the subsequent apphcations
were barred. On appeal to the High Court -.—Held,
that the appHcation of the 10th March 1871 was an
application " to enforce the decree," and fell with-
in Art. 167 of Sch. II of Act IX of 1871 . 'i'he High
Court accordingly reversed the orders of the Courts
below and directed that the decree should be exe-
cuted, as prayed by the appUcation of the 3rd Janu-
ary 1874. GoviND Shanbhog v. Appaya

I. L. B. 5 Bom. 246

10. Dispute between

purchaser of decree and third party, A dispute
between the purchaser of a decree and a third party,
and the proceedings connected therewith, cannot
be taken to be proceedings within the purview of
s. 20, Act XIV of 1859. Naeain Achaejee Chow-
CHEY V. Mohamoya Dabee Chowdhrain

10 W. B. 240

LIMITATION" ACT (XV OF 18n)—conUi.
Schedule II — contd.

Art. YJd— contd.

4. STEP IN AID OF EXECUTION— cow^d.

(«) Generally — concld.
See Brijonauth Chowdhry v. Lall Mee:

MXJNNEEPOOREEJ., j. . . . 14 W. R. 8.

The proceeding must be one against the ju(-

ment-debtor. Jado Lall v. Radha Klssen Mitt;

17 W. R. ►

11.

Civil Procedi

Code {Act XIV of 1882), ss. 235, 274 and 287— B}
in aid of execution — Failure by purchaser to se'. »
possession of property purchased in execution}-
Execution incomplete. A decree was passed l
favour of the plaintiff in a suit on 20th Octol,
1893, and, on 19th October, 1894, the decree-holt
applied for execution, and purchased under a Cot
sale certain lauds belonging to the judgme-
debtor. On 13th March 1896, the decree-holr
made an application for delivery to him of S-
lands so purchased, but delivery was not madei
respect of some of them. On 6th March, 1899,a
appHcation was made for further execution of e
decree. Held, that the execution was not comp©
so long as the purchaser had not secured possess;*,
and that the application of I3th March might faiv
be called an application to take a step in ;>' '
execution. Sariatoolla Molla v. Raj Kumnf
1. L. R. 27 Calc. 709, referred to. Lakshm.
Chettiar i". Kannamal (1900)

I. L. B. 24 Mad. .IS'

12. Afplicatioim

execution — Application to take a step in aid of ?•
ciition — Distinction. On 4th November 189; a.
decree-holder applied to the Court for the attfji-
ment of a sum of money belonging to the judgmjt-
debtor, but which was in the hands of a Go\ ;•
ment Department. There was no prayer i-
petition that the money should be paid to thr
tioner. An order, purporting to bo made

s. 272 of the Code of Civil Procedure, was
on 19th November 1895 requesting the I'
ment to remit the amount to the Court. Oi
April 1898, the Treasury Deputy Collect-
formed the Court that there was a balance du(
judgment-debtor. On 12th December 189>
decree-holder petitioned the Court, under -
and 272 of the Code, that the said balance >
be sent for and paid to him. Held, tha'
application was not barred, and that Art. 1
Sch. II to the Limitation Act was not applicab
the case. Venkata Ramanamma v. PuRUSHOiji>'
(1900) . . . I. L. B. 24Mad.38■

(6) Striking Case off the File, Effect

13. .^ - Striking cn'ii

the file— Proceeding to enforce decree. Strikij a
case off the file is not an effectual proceeding to '-e?

( 7553 )

DIGEST OF CASES.

( 7554 )

3IITATION ACT (XV OF 1877)— rontd.
Schedule II — coritd.

Art. 179— contd.

I. STEP IN AID OF EXECUTION— co«^/.

{\ Striking Case off the File, Effect of —

contd.
iiiecree iu force under the Law of Limitation.
J DUN Bhukut v. DoOar Bharaiee

8 W. R. 320

Strik 171(1 case of)

I file. The mere pendenc3' of an execution case
•I ick off the file for want of prosecution, or the
siting such case off the file, is not a proceeding
y^UQ the meaning of s. 20, Act XIV of 1859.
1*1 S.\HAi SiNGu V. Sheo Sahai Singh. Guru-
» Akhuli ?;. Go BIN Naik

B. L. R. Sup. Vol. 492

1 Ind. Jur. N. S. 421 : 6 W. R. Mis. 98

(5. Consent to strik-

iicaae off the file. Consent of the decree-holder
t<i!ie striking oH of an attachment not a proceed-
ii| to enforce a decree, but a rehnquishment.
Tlby v. Peet Singh

Agra F. B., Ed. 1874, 117

Striking off exe-

iroceedin-gs, A District Judge having held
.. -.11 application to execute a decree did not
p ent the operation of s. 20 of Act XIV of 1859,
it'iving been struck off, because the applicant did
0 pay batta, the High Court reversed the order,
«i directed the Judge to determine whether the
ft'ier apphcation to execute the decree was bond
fit notwithstanding batta was not paid. Dai.vi
«.,..iKSHUMAN H.iRi Patil 4 Boiu. A. C. 86

Striking off exe-

<i\>n-proceedings. A decree was passed in 1850,

»ii was in force in 1859, when Act XIV of that year

" ■I'^scd. Between August 1850 and 25th April

thing effective was done in furtherance of

II. Petitions for execution were tiled in

"'•1 and August 1S62, and the usual orders

n them, but they were struck off in default.

■■ April 1864, another petition was tiled, and

' :is served on the debtor. Held, that at

lie the petition for execution was barred by

"li. The decree was not kept alive bv the

> of May 1861 and August 1802, which

nick off in default. Sat^'asaran Ghosal

'I'AB Chandra Brah.mo

2 B. li. R. A. C. 196 : 11 W. R. 80

iiiug the decision of the High Court in

■l^^o Churn Ghosal v. Bhyrub Chu.mder

°1«J0 9 W. R. 565

• ;^ — — Striking off exe-

'roceedings — Bond fides proceedings to keep
'\ force. A decree was obtained on 16th
^ >0, and execution was applied for on 28th
' r 1861, when the apphcant was ordered by
at to produce a certificate of heirship. On
— iiiing to do so, the case was struck off. He

! VOL III

LIMITATION ACT (XV OF 1817)— conid.

Schedule II— cmtd.

~. Art. 179— contd.

4. STEP IN AID OF EXECUTION— con<<i.

(6) Striking Case off the File, Effect op
— contd.
next apphed for execution on 13th August 1864.
Held, that the proceedings taken in 1861 were not
bond fide proceedings on the part of the Court such
as would keep the decree alive, and that the appli-
cation was barred. Lacumipat Sin'OH Roy v.
Wahid Ali 2 B. L. R. A. C. 194 : 11 W. R. 70

19.

Striking off exe-

cution-proceedings— Bond fides. Where the repre-
sentatives of a deceased decree-holder applied for
execution of his decree, and were directed to furnish
proof that they were the representatives of the
deceased, and did so, and then their execution case
was struck off the file : — Held, that the steps taken
by them were boiid fide steps taken to keep the
decree alive. Adina Bibi v. Sububunnissa Bibi
3 B. L. R. Ap. 142

20.

Striking off exe-

cution-proceedings— Proceeding to enforce decree.
Application for the execution of a decree was made
on the 21st December 1864, and in pursuance of
such application the notice required by law was
issued to the judgment-debtor. On the 7th Febru-
ary 1865, the Court executing the decree called on
the decree-holder to produce proof of the service
of such notice within four days. On the 23rd
February 1865, in consequence of the decree-holder
having failed to produce such proof, the Court
dismissed the apphcation. There was no pro-
ceedings either of the decree-holder or of the Court
between the 7th and the 23rd February 1865.
On the 18th February 1868 application was again
made for the execution of the decree. Held, that
the proceeding of the Court of the 23rd February
1865, striking off the former apphcation for default
of prosecution, was not a proceeding to keep the
decree ahve, and the latter apphcation was therefore
beyond time. Raghu Ram v. Dannu Lall

I. L. R. 2 AU. 285

Strikin^g off exe-

cution-proceedings— Application for execution of
decree. On the 16th January 1875, a decree-holder
apphed for execution of liis decree, and the 3rd of
.\larch 1875 was fixed for the sale of the judgment-
debtor's property. On tiie last-mentioned date
the debtor applied for two months' time, and the
decree-holder assented to postponement for that
length of time only. The apphcation was granted,
and the Court thereupon struck the case oS the
file. Nothing further was done until the 25th
February 1878, when the ^^decree-holder again
applifxl for e-^ecution. Held, that the apphcation
of 3rJ March 1875 was in fact astep taken in aid of
execution of the decree, and that the apphcation of
25th February 1S7S was therefore, under Act XV

11 H

( 7555 )

DIGEST OF CASES.

7556 )

LIMITATION ACT (XV Or 1877)— ronW.

Schedule II — contd.

Art. 179— contd.

4. STEP IN AID OF EXECUTION— fo«/rf.

(b) Striking Case off the File, Effect of —

concld.
of 1877, Sch. II, Art. 179, cl. 4, within time.
Rajltjkhy Dassee v. Rash Munjury Chowdrain
5 C. L. R. 515

;. Ameeroolmoi
6 W. R. Mis. i

22. Application to

slrilce off pending execution with liberty to make
fresh application — Application made before Act VI
of 1892. Held, that an application made before the
passing of Act VI of 1892 by a decree-holder to the 1
Court executing the decree to strike off a pending
application for execution with libortj' to make a !
fresh apphcation for execution of the same decree '
was an application in accordance witli law to take j
a step in aid of execution of the decree within the
meaning of Act XV of 1877, Sch. II, Art. 179, '
cl. 4. Ram Narain Rai v. Bakhtu Kuar

I. L. R. 16 All. 75 '

Proceedings to en-

force decree. Resistance to legal proceedings taken
by another person counted as a proceeding for the
purposes of s. 20, Act XIV of 1859. Kalee Ki-
SHORE BosE V. Prosono Chunder Roy

10 W. R. 248

24. Continuance of

contest between parties. So long as an actual bond
fide contest was going on in Court between a de-
creed-holder and the judgment-debtor as to the
judgment, there was a pending "proceeding"
within s. 20, Act XIV of 1859, and the period
of Limitation was to be computed from the Court's
decision. The decision in the case of Ram Sahai
SiTigh V. Sheo Sahai Singh, B. L. B. Sup. Vol.
492, commented on and approved of. Dhiraj
Mahtab Chuxd v. Bttlram SnsTGH Baboo

5 B. L. R. 611 : 14 W. R. P. C. 21

13 Moo. I. A. 479

Chotay Lal v. Raji Dyal . 2 N. W. 402

MODHOO SOODTJN MOOKERJEE V. KiRTEE ChuK-
DER Ghose .... 18 W. R. 7

25. Resisting claim

to attach property. Bond fide proceedings in resist-
ance of a claim to attach properties were proceedings
to enforce a decree \\ithin the meaning of s. 20 of Act
XIV of 1859. Becharam Dutta v. Abdul
Wahed . . . . I. L. R. 11 Cale. 55

26. Resisting appeal

against decree. Resisting appeal against a decree
(which appeal was eventually compromised) was a
proceeding, ^v-ithin the meaning of s. 20, Act XIV
of 1859, taken to enforce or keep alive the decree.
Syud Khan v. Jumal Bibee 5 W. R. Mis. 19

LIMITATION ACT (XV OF 1877)-co;><rf.
Schedule II — contd.

Art. 119— cont'I.

4. STEP IN AID OF EXECUTION— co«W.

See Btikronath Chuckerbutty v. Nilmone

Singh Deo , . . . 18 W. R.

Ram Ruttun Banerjee
Bunwaree Gobind .

27. Opposing app

cation for leave to appeal. An appeal prosecuted i

a decree was a proceeding to enforce a decree \\\t\.\

the meaning of s. 20 of Act XIV of 1859. A

held there m as such a proceeding \\here, on the ju(i

ment-debtor seeking to obtain leave from the Hi

Court to appeal to the Privy Council, the exec

tion-creditor intervened. Kisto Kinker GhoI

Roy v. Bxjrboda Caunt Singh Roy \

10 B. L. R. 101 : 17 W. R. 2)(

14 Moo, I. A. 4|

s. c. in Com-t below, Kishen Kishore Ghc:

V. BuRODA Kant Roy . . 8 W. R. 4»

28. Appeals agait

orders. Appeals against orders of the Court char<l
■with the execution of a decree, having the effect!
restraining execution or stopping further proce-
ings, ^\ere proceedings coming within the termsf
s. 20, Act XIV of 1859. Nittyanunda Koosn
V. Nxjgendro Chtjnder Ghose . 16 "W. E. S^

29. Appeal /(»

order setting aside attachment. So also was an ap;^
from an order setting aside an attachment. Kai"-
persaitd Singh v. Jankee Deo Nakain. i

7W.I^

30.

Opposing aj.'i'

cation for review or petition of appeal. If, aft< &
decree upon an application for re\aew of judgnit
or petition of appeal, the person in whose favour^
original decree was given appears in person (wheer
voluntarily or upon service of notice) to oppo-
application, and files a vakalutnama. or doc^
thing for the purpose of preventing the Ap!
Court or the Court of review from setting the
ment aside, such an act being an act of the]
in whose favour the judgment has been gi\'
the purpose of preventing its being set aside,
act done for the purpose of keeping the juiL
in force. Bhubaneswari Debi v. Maeendka:
Chowdhry . . . SB.li.'R.Ai^
Kaila Chand Paul v. Dhiraj Mahatab Ci";^
18 W. E

31.

Opposing

cation for appeal or revieiv— Decree for costs. \\
the original suit is pending in appeal, the d^
holder is not obliged to execute his decree for |SW
until the proceedings are set at rest by the Afw*
late Court ; and if application is made for a r(|ew
of the order made in appeal, an attempt maf «
support the original order must be regarded

( 7557 )

DIGEST OF CASES.

( 7558

IMITATION ACT (XV OF 1877)— cmtd.

Schedule II — contd.

Art. 17d~ron(d.

4. STEP IN AID OF EXECUTION— confef.

I Resistance to Legal Proceedings — contd.
oceeding to keep it alive. Mahomed Busseer-
)Li.AH V. Ram Kant Chowdhky

16 W. K 266

32, Opposing appli-

Hon for review. The words " judgment, decree,
order " in s. 20, Act XIV of 1859, mean a judg-
>nt, decree, or order which can be enforced by
lution. An application for a review, or a peti-
u of appeal by the person against whom the
Igment was given, is not a proceeding by the
3ree-holder to keep the decree in force. JBipro
';j>.ss GossAiN V. Chunder Sikur Bhtjttacharjee
! B. L. R. Sup. VoL 718

I 2 Ind. Jur. N. S. 248

7 W. R. 521

jtJTEEFUN V. RaJROOP SiNGH

10 B. L. E. 361 : 19 W. E. 185

. '3. 1 Opposing appli-

c on for review. But there is such a proceeding if
1 appear to oppose the application, or does any
a to prevent the decree being set aside. Bepro
1 33 GossAiN V. Chunder Sikur Bhuttacharjee
B. L. R. Sup. Vol. 718 : 2 Ind. Jur. 248
7 W. R. 521

'^' ■ — Appearance as

n>ojident in appeal. The appearance of the per-
8' in whose favour a judgment Mas given as re-
si.ident on an appeal was not an act done for the
P'pose of keeping the judgment in force within
«j meaning of s. 20, Act XIV of 1859. Virasamy
W'iALi V. Mannommany Ammal 4 Mad. 32

'• . Decree for move-

« awl immoveable property— Appeal in respect of
thjnoveable property— Application for execution
(^^■egards ^mmoveahh property. 8. M., on 24th
A 1 1860, obtained a decree against B M for pos-
se on of certain land and also for certain moveable
P'|«rty. B M then applied to the Hiah Court
»f Qst the decree so far only as it related to the
Tl D?'^! property. 5 M appealed as respondent.
I'lfligh Court modified the decree in respect of the
m ;able property only on the 6th March 1869. On
Jft:;6th April 1869, the decree-holder applied to the
v^k which gave the original decree for execution
'n|spect of the land only. He Mas refused execu-
ofl^o ^""^^ Kv limitation under s. 20, Act XIV

' j'59. Held, the appearance of 8 M, the decrec-

oo|T as respondent in the appeal preferred by BM,

5 High Court (M-hich M-as in respect of themove-

o property only), Mas no proceeding to enforce

jO' ecree ,n respect of the land or to keep it in

I ^ he execution of the decree in respect of the

«, was barred. Srixath Mazumdar v. Bra-

■">■' TH Mazumdar

4 B. L. R. Ap. 99 : 13 W. R. 309

LIMITATION ACT(XVOri877)-f07)/(f.
Schedule 11— contd.

. Art, 179— contd.

4. STEP IN AID OF EX ECUTION— conk

36. Appearing as

respondent in appeal. In this case certain proceed-
ings of the Beerbhoora Courts in 1866 appealed to,
and finally decided by, the High Court in 1868 M'ere
lield to he the proceedings that M'ould, Mhile they
Mere being carried on, have prevented the decree-
holder (respondent) from executing his decree and
therefore proceedings that prevented the bar of
limitation from applying to the execution of that
decree. Sreenabain Mitter v. Dheraj Mahtab
Chund 17 W. R. 72

37. ■ Proceedings to

enforce decree — Opposing right of third jMrty to
attached property. A decree-holder having sold
certain property in execution and purchased it
himself, a balance remained due to him under the
decree. Some time after, a third party brought a
suit to establish his right to the property, the decree-
holder and judgment-debtor both being ipade
parties : — Held, that it Mas right, and, under the
circumstances, perfectly equitable, to count the
time spent by the decree-holder in that litigation
as spent in hojid fide carrying on execution. Roma
Nath Jha v. Luchmiput Singh 19 "W. R. 418

Defence to suit.

A party [M), having lent money on the security
of land, obtained a decree against the borrower for
principal and interest, execution being stayed for
six months, and plaintiff's lien on the land main-
tained. A year after the decree-holder applied for
execution, and the estate M'as attached with a view
to sale. Thereupon one K claimed the estate as his
property, and, the claim being disallowed, com-
menced a suit in a Civil Court to estabHsh his title,
paying in shortly after, under protest, the sum
M'hich had accrued under the decree, and that money
was taken out with the leave of the Court by the
decree-holder (M), and satisfaction entered upon
the decree. Subsequently K obtained a decree,
in virtue of Mhich M Mas ordered to refund the
money. Held, that the defence to K's suit by the
decree-holder M would not be' a proceeding taken
by him within the meaning of s. 20, Act XIV of
1859, to keep his decree alive. Prosunno Chun-
deb Roy V. MooKooND Pershad Roy.

11 W. R. 210

Application for

execution of decree — Step in aid of execution. An
application by a decree-holder praying that the
objections taken by the judgment-debtor to the
sale of property belonging to him in execution of
the decree should bo disallowed, and the sale be
confirmed, is an application from the date of M-hich
the period of limitation for a susbsequent applica-
tion for execution of the decree may be computed.
Kewal Ram v. Khadim Husain

I. L. R. 5 All, 57ft

11 H 2

( 7559 )

DIGEST OF CASES.

( 7560 )

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 119— contd.

4. STEP IN AID OF EXECUTION- ronW.

40.

Application hy

decree-holder for rejection of petition of judgment-
debtor objecting to sale, and for confiimation of sale.
An application by a decree-holder, praying that a
petition of the judgment-debtor to set aside the sale
of property belonging to him should be rejected 8.nd
the sale be confirmed, is an application falling with-
in the meaning of Art. 179, el. 4, of Sch. II of the
Limitation Act, XV of 1877. An application for
execution of the decree made within three years from
such a former application is not barred. Kewal
Bam V. Khadim Husain, I. L. E. ■) All. o76,
followed. GoBiND Pershad alia-" Gobind Lal v.
Rung Lal . . I. L. R. 21 Cale. 23

41. Application to

taJce a step in aid of execution — Opposing applica-
tion to set aside sale in execution of decree. The
appearance of a decree-holder by his pleader to
oppose an application made by the judgment -
debtor to set aside a sale in execution of the decree
is not an application within the meaning of Art.
179 of Sch. II of the Limitation Act to take a step
in aid of execution. The apphcation contemplated
by that article is an application to obtain some order
of the Court in furtherance of the execution of the
decree. Umesh Chunder Dutta v. Soonder
Narain Deo . . I. L. B. 16 Cale. 747

42. • " Step in aid of

execution of decree.'''' iJ, in a suit against ;S and other
persons, obtained a decree on the 24th December
1878, 8 being exempted from the decree, and being
awarded costs against the plaintiff. In execution of
his decree, R, on the 16th June 1880, sought to set
off all the costs awarded to S against the amount
due to himself. On the 6th August 1880, 8 preferred
objections to this course. On the 19th July 1883,
S applied for execution of his decree for costs.
Held, that the application was barred by limitation,
inasmuch as Art. 179 (4) of the Limitation Act re-
quires that the decree-holder should make a direct
and independent application for execution on his
own account, and it was not sufficient to satisfy
the requirements of the law to offer objections under
the circumstances under which they were offered
in the present case. Shib Lal v. Radha Kishen
I. L. R. 7 All. 898

((/) Suits and other Proceedings by Decree-
holder.

43. Proceedings to

keep decree in force. Where a decree-holder is
referred to a civil suit by the Court to which he
applies for execution, and he accordingly carries on
proceedings in order to get full relief under his
decree, such proceedings must be held to be in
iurtherance of execution, and as keeping the decree

LIMITATION ACT (XV OF 1811)-coTUd.

Schedule II — contd.
Art. 119—coutd.

4. STEP IN AID OF EXECUTION— con/rf.

(d) Suits and other Proceedings by Deceei

HOLDER — contd.
alive. Radha Gobind Shaha v. Brojende
I CooMAR Chowdhry . . 15 W. R. 20

! 44. — - Application f(

i copy of decree. The application by a decree-hold
i for a copy of a decree with intent to apply for ex
cution is not a step in aid of execution within t)
; meaning of cl. 4 of Art. 179 of Sch. II of 1-
I Limitation Act, 1871. Gopilandhu v. Dombtx.
I I. L. R. 11 Mad. 3!;

45. Application j

return of a copy of a decree. An apphcation to tl
Court by a decree-holder asking for the return
the copy of a decree filed with a former darkk
is not a step in aid of execution within the meani
of Art. 179 (4) of the Limitation Act (XV of 187'
Rajaram v. Banaji Mairal

I. L. R. 23 Bom. 3

46. Application

withdraw a pending proceeding for execution w
leave to institute another — Code of Civil Procedti
, I'^-Si^ s. 373. An apphcation to withdraw a pendi
proceeding for execution, with leave to institit
another at some future time, is not a step in aid;
execution within the meaning of the Limitation i i
Sch. II, Art. 179, cl. 4. Ram Narain Rai v. Baki
Kuar, I. L. R. lH All. 75, dissented from. Tae:
Chunder Sen v. Gyanada Sundari.

I. L. R. 23 Cale. f?

47. Civil Proced\6
Code, s. 20r — Application to bring decree into ci-
formity with judgment. The granting of an api-
cation under s. 206 of the Civil Procedure C,e
to bring a decree into conformity with the ju]-
ment does not form the starting-point of a fi|li
period of Umitation in favour of the decree-holr :
nor is such an application " a step in aid of execv,
within the meaning of Art. 179, Scb. II ci*
Limitation Act (XV of 1877). Kishen Saha.
Collector of Allahabad, I. L. R. t All. 137,
tinguished. Kallu Rai v. Fahiman

I. L. R. 13 All.

48. -^ Application

missed for non-payment of process-fees. A d^
^\■as passed in 1884 against the Vahya Raja!
Chirakal Kovilagom, since deceased. In 1866
decree-holder made an apphcation in executioi ■ •
the attachment of a judgment-debt, but he didpk
pay the process charges, and the apphcation *»
dismissed on that ground. Held, that that a^'
cation was a step in aid of execution withmpe
meaning of Limitation Act, Sch. II, Art. 179. IB"
ALA Varma Valiya Rajah v. Shangakam.

I. L. R. 16 Mad. »

49^ .., Afplicatior'ot

lists 'of properties attached. An applicationb/

( 7561 )

DIGEST OF CASES.

( 7562 )

JMITATION ACT (XV OP 1871)— contd.

Schedule II— contd.
Art. 179— contd.

4. STEP IN AID OF EXECUTION— con<(i.

') Suits and other Proceedings by Decree-
holder — contd.
decree-holder for a list of the properties attached
I execution of his decree is not a step in aid of
cecution within the meaning of the Limitation
ct, Sch. II, Art. 171). Kunhi v. SesJiagiri, 1. L. B.
Med. 141, distinguished. Ranga Chariar v.
4LARAMASAMI Chetti . I. L. E,. 21 Mad. 400

50.

Application to

"nd decree under s. 206, Civil Procedure Code,
f>2 — Application to " the proper Court.'" An
iplication under s. 206 of Code of Civil Procedure
■es not give a fresh starting-point to limitation,
d cannot be regarded as an application to a pro-
'r Court to take step in aid of execution. Kishan,
hai V. Collector of Allahabad, I. L. B. 4 All.
7 ; Tarsi Ram v. Man Singh, 1. L. E. 8 All.
:' and Kallu Rai v^ahiman, I. L. R. 13 All. 124,
erred to. Dava feisHANi;. NanhiBegam.

^ I. L. R. 20 All. 304

51. Suit to set aside

•i'er under s. 2-/ 6, Civil Procedure Code, I!' 59.
-Irait by a decree-holder to set a side orders passed
i:ier s. 246, Act VIII of 1859, and to declare his
rht to sell a certain estate as the property of his
j'lgment-debtor in execution of his decree, was a
Jiceeding within the meaning of s. 20, Act XIV
( 1859, to enforce such decree. Ram Coomar
(owdhry v. Brojesstjree Chowdhrain

6 W. R. Mis. 14

Casher Pershad Roy v. Shib Chttnder Deb
2 W. R. Mis. 3

2. Execution of de-

r, obtained before the passing of Act XIV oi is. .9 —
t't by decree-holder to declare property liable to
achment. Process of execution of a decree
ojiined before the passing of Act XIV of 1859
nht be issued within the time mentioned in s. 21
0 hat Act without any prior proceeding having
":i taken ; but when it was sought to execute
8' 1 decree after three years from the time of the
P ibg of the Act, process of execution should not
p ssued unless some proceeding within the mean-
jrbf s. 20 had been taken to enforce the decree or
k' ) it in force within three years next preceding
tJ;application for execution. A regular suit by a
o«.ee-holder for a declaration that property re-
'^'d from attachment, under s. 246 of Act VIII
W359, is liable to attachment in execution of his
'»«]9e, was a proceeding to keep a decree in force
wiiin the meaning of s. 20, Act XIV of 1859.
«^:uELEE Churn Ghosal v. Bonomalee Mullick.
«-|4BEER Parsad V. Pranputty Koer

B. L. R. Sup. Vol. 709 : 7 W. R. 515

^^|:koendur Narain Ghose

Hurktshorb
8 W. R. 88

LIMITATION ACT (XV OF 1877)— contd.

Schedule U—ccntd.
Art. 179— contd.

4. STEP IN AID OF EXECUTION— fo«^c/.

(d) Suits and other Proceedings by Decree-
holder C07ltd.

, ^3- -; Suit under s. 246,

Act VIII of 18. -)9— Proceeding to enforce decrep.
Within three years of his first application in exe-
cution of a rent-decree. A, the judgment-creditor,
made a second application to sell certain lands, the
alleged property of B, the judgment-debtor. Third
parties intervened who established their claim to
the land. A thereupon brought a regular suit,
and succeeded in obtaining a decree declaring the
lands in suit to be the property of B. Within a
year of the date of this decree, but more than three
years after his first application for execution, A
filed a third application for attachment of other
lands belonging to B. Held, that the application
was barred by limitation. Ramsoonder Sandyal

V. GorESSUR MOSTOFEE

I. L. R. 3 Calc. 718 : 2 C. L. R. 220

54.

Suit to set aside

order in a claim case— Execution of decree— Appli-
cation in continnatioyi of a previous application
for execution. CI. 4, Art. 179, Sch. II of the Limita.
tion Act, 1877, does not include a suit to set aside
an order passed in a claim case. R and L obtained
a decree against B on the 7th March 1881, and in
execution of that decree certain property belong-
ing to B was attached on the 11th June 1883.
Thereupon a claim was made to the attached pro-
perty by third parties, and a two-thirds share there-
in was released by the Court executing the decree.
Oil the 22nd March 1884, R and L instituted a
suit for a declaration that the entire property was
liable to be sold under their decree, and obtained a
decree on the 29th March|lS86. This decree was
reversed by the lower Appellate Court, which up-
held the order releasing a two-thirds share of the
property, and on 22nd July 1887, the High Court
aflfiimed the decree of the lower Appellate Court.
On the 15th August 1887, R and L applied for
execution of their decree in respect of the remaining
one-third share. B objected that the application
was barred. Held, that the application of the 15th
August 1888 was not a continuation of the applica-
tion of the 11th June 1883. Payroo Tuhovildarinee
V. Nazir Hossein, 23 W. R. 183 ; Issuree Dassee v
AbdulKhnlak,I.L.R. 4 Calc. 41,: Chundra Pro-
dhan v. Gopi Mohun Shaha, I. L. R. 14 Calc. 385
and Paras Ram v. Gardner, 1. L. R. 7 All. 355t
di.stinguished. Held, al.so, that the institution of
the suit on the 22nd March 1884 and the appeal to
the High Court from the decree of the lower Ap-
pellate Court were not steps in aid of execution.
Akbar Gazee v. Bibee Nvleezun, 8 W. R. .'..9, distin-
guished. Raghunandun Pershad v. Bhugoo
Lall . . . I. L. R. 17 Calc. 268
55. _ Proceeding to en-
force decree. A suit for a declaration of plaintiff's

( 7563 )

DIGEST OF CASES.

( 7564 )

LIMITATION ACT (XV OF 1877)-

Schedule II — contd.
Art. IIQ— contd.

-contd.

4. STEP IN AIT) OF EXECUTION— co«/(7.

(d) Suits and other Proceedings p-^- Decree-
holder — contd.
right to assess certain lands as mal having been
decreed, some of the defendants applied under s.
119, Act VIII of 1859, and prayed the Court to set
aside the decree. The remaining defendants were
made parties, and the decree was materially modi-
fied. Held, that, as the decree-holder was taking
steps for the purpose of preserving the original
judgment intact, he was taking a proceeding to
keep the decree alive. Poornanund Surkhel v.
HuRO Soondeeee Debia . . 13 "W. R. 208

56. Procuring attach-

ment and advertising for sale. Where a decree-
holder expended money in procuring attachment of
his debtor's property and advertising the same
for sale, the proceeding was presumed, nothing
to the contrary being showTi, to be a bond fide pro-
ceeding within the meaning of s. 2U, Act XIV of
1859. .Juttadharee Singh v. Wuzeer Singh

• 12 W. R. 357

57. Application to ar-
rest jvdgment-dehtor. An appUcation to arrest,
which is not carried out, is a bond fide proceeding,
taken with the intention of keepmg the decree alive
only when the judgment-creditor can show that
certain circumstances happened that rendered it
unnecessary for him to proceed further against the
judgment-debtor in execution of that process.
Joykishen Shaha v. Bishoka Moyee Chowdrain
17 W. R. 355

58.

Unsuccessful suit

to have property made liable under decree. An un-
successful suit by a decree-holder for the purpose of
having specified property made liable under his
decree is a proceeding to keep the decree in force.
Akbar Ghazee v. Nupeezun . 8 W. R. 99

Eshan Chxjnder Bose v. Juggobundhoo Ghose
8 W. R. 98
(Contra) Junaedun Doss Mitter v. Rajah Rook-
nee Btjllub . . . 6 W. R. Mis. 48

59.

Unsuccessful-

60.

Taking out pro-

application to substitute names as heirs of decree-
holder. The petitioners applied for the substitution
of their names as heirs of a deceased decree-holder,
but failed to satisfy the Judge that they were the
heirs of the original decree-holder. Held, that such
an infructuous application was not a process to
enforce or keep in force a decree Mithin the meaning
of s. 20. Lalla Bishen Dyal Singh v. Ram
Sttnkur Tewaree . . 6 W. R. Mis. 38

ceeds of previous sale in execution. The act of taking
out the proceeds of a previous sale in execution of a
decree was held not to be a proceeding to keep the
decree in force. Kishen Mohun Jush v. Chunder
Kant Chuckerbutty . 6 W. R. Mis. 49

LIMITATION ACT (XV OF 1877)-con«.

Schedule II — contd.
Art. 119— contd.

4. STEP IN AID OF EXECUTION— conW.

(d) Suits and other Proceedings by Decrei
holder — contd.

61. Taking out morn

deposited in Court. The taking out by a decrei
holder of money deposited in Court by his judgmem
debtor was an effectual proceeding under s. 20, A(
XIV of 1859, to keep the decree in force. JoOES
Peokash Gangooly v. Kalee Coomar Roy

8 W. R. 27

62.

Conduct of

I and remission of proceeds to the Collector by Naz
The rule approved by the Privy Council, that ai
act done by a Court or an officer thereof, or 6oi
fide by the apjilicant, for enforcing or keeping
force a decree, satisfies the term " some procee
I ing " in s. 20, Act XIV of 1859, was held to app
' to the act of a Nazir in conducting a sale and rem
ting the proceeds to the Collector, and to the act
the decree-holder in applying for and drawing oul
portion of these proceeds. Rajeshueee Debia
Raj Coomaree Dossee . 15 W. R. 1<

63.

Application

take money out of Court — Bond fides. An executi
sale was stayed by consent for two months, and li
execution suit was struck oif the file. During sui
period the execution-creditor applied to the Co'i
to restore his execution suit and to pay to hiiQ c-
tain moneys in deposit in Court to the credit of 9
judgment-debtor in another suit, alleging that a
(the execution -creditor) had attached tb.,
but it turned out that he had attached themo
another suit . Held, that, the apphcation being 6 i
fide, the period of limitation began to run from e
date of the disposal of the application by the Co i.
Dhunput Singh Roy v. Mudhomottee Debi
11 B. L. R. P. C. 23 : 18 W. R.8

Reversing Modhoomutty Debia v. DhunT
Singh 13 W. B. 4

64. " Steps in '.

execution'" — Application for sale-proceeds. Ai:
plication by a decree-holder to be paid the pn^
of a sale of property in execution of the dec;
" a step in aid of execution " of the decree «)
the meaning of Art. 179 (4), Sch. II of Act :!^
1877 (Limitation Act). Paran Singh v. Jw
Singh . . . . I. L. R. 6 AIL

65,

Applicaiio

take money out of Court. An application made
judgment-creditor to take out of Court ce^iu
moneys there deposited by his judgment-dc;Or
cannot be considered to be an application tcjli*
Court to take a step " in aid of execution," a' u
not therefore within the meaning of cl. 4 of Art.'?9i
Sch. II of Act XV of 1877. Bunsee Singh v. .A:"/
Ali Beg, 22 W. R. 32S, distinguished. ^
Chunder Chowdhry v. Brojo Soondury D^b
I. L. R. 8 Calc. 89 : 10 C. L. R.72

( 7565 )

DIGEST OF CASES.

( 76t)6 )

[MITATION ACT (XV OF 1817)— cnntd.

Schedule II — conti.
Art. 179— contd.

4. STEP IN AID OF EXECUTION— coH<r/.

ij Suits and other Proceedings by Decree-
I HOLDER — contd.

66. — Obt'iining money

im Court. Hell, that obtaining the money from
e Court 'after the execution proceedings were put
end to was not an execution-proceeding at all.
ODOY Tara Chowbhrain v. Abdool Jubbur
(OWDHBY . . , . 24 W. R. 339

■37.

Application to
. out money deposited in Court. An application
ide by a judgment-creditor to take out of Court
tain moneys, the sale-proceeds realized by the
es of certain properties of his judgment-debtor
:a previous execution, cannot be considered to be
, application to the Court to take a " step in aid of
■locution," and is not therefore within the mean-
■■r of cl. 4, Art. 179, Sch. II of Act XV of 1877.
.iTO Chunder Choivdhry v. Rrojo Soondury Debee,
J\L. R. 8 Calc. S9 ; V enkataraynlu v. Nurasinha,
.\L. R. 2 Mad. 174, dissented from. Fazal
Cut v. Metta Singh . I. L. R. 10 Calc. 549

i38. Request for pay-

i.nt of money realized in satisfaction of a decree. A
liiuest for the payment of money reahzed in satis-
iition of a decree is sufficient to keep the decree
<!.'e, being a step in aid of execution. Venkatara-
J,u V. Narasimha, I. L. R. 2 Mad. 174, approved
111 followed. Whether a particular act is or is not
t, application for, or step in aid of, execution de-
l;ids upon the nature of the act rather tlian the
ijie at which it may possibly be done. Hem,
•i\inder Chowdhry v. Brojo Soondury Dabee, I.
h R. 8 Calc. 89, quaUfied. Koorimayya v.
liiSNAMMA Naidu . I. L. R. 17 Mad. 165
Oral application

I judgment-creditor for payment of money paid into
(trt. An application by a judgment-creditor for
t payment to him of money which has been paid
I ) Court on his account in execution of his decree
in application to the Court to take a step in aid
<;|}xecution of the decree within the meaning of
4 179 of Sch. II of the Limitation Act (XV
c|877). Bapuchand Jethiraji Gtjjar v. Mugdt-
i) . . . I. L. R. 22 Bom. 340

I'O. Steps taken to get

'f'\Ky out of Court after refusal of application.

^jiere, by declining to pay to the decree-holder the

1 ceeds of an execution-sale which has been con-

tjfirmed, a Court obhges him to take steps to

sjisfy the Court that there is no other claimant,

8h steps must be considered as a proceeding to

«|3rce the decree and obtain satisfaction there-

O' Mahomed Hossein Khan v. Lootf Alt Khan

18 W. R.463

— . - Payment out of

•' to plaintiffs of money collected by receiver,

LIMITATION" ACT (XV OF 1877)— ccnid.

Schedule II — contd.

Art. 170— contd.

4. STEP IN AID OF EXECUTION— con^cf.

(d) Suits and other Proceedings by Decree-
holder — contd.
but not under decree. The question whether an
apphcation to enforce execution of a decree was
barred by Hmitation depended upon whether a pay-
ment out of Court to plaintiffs of money collected
by a receiver constituted (with the application
alleged to have preceded it) a step in aid of exe-
cution ^vithin the meaning of Art. 179 of Sch. II
to the Limitation Act. The receiver had been
appointed during the pendency of the suit, which
was by mortgagees for possession of the mortgaged
land and for mesne profits accrued prior to the date
of plaint. The receiver remained in possession of
the land for a period of six months after decree,
when he handed it over to the plaintiffs ; and the
payment out of Court above referred to was of
money which had apparently been collected by the
receiver during the said six months, and formed no
part of the mesne profits dealt with by the decree.
Held, that such money was not collected or paid in
execution of the decree, though the plaintiffs "had
become entitled to it as a consequence of the decree.
It consisted of current profits of the estate, in de-
manding which plaintiffs had done nothing towards
the execution of the decree, which did not deal
with such profits and which could be fully executed
without reference to them. And held,theTeioTe. that
the payment referred to did not constitute a step
in aid of execution, and that the present apphcation
was barred by Art. 179 of Sch. II to the Limitation
Act. Appasami Naickan v. Jotha Naickan

I. li. R. 22 Mad. 448

72. — Proceedings in

execution as to mesne profits — Decree for costs.
Proceedings in execution of a decree as lo mesne
profits were held to be an effectual proceeding
within the meaning of s. 20, Act XIV of 1859, to
enforce the same decree as to costs. Oopendur
MonuN MusTAFEE V. Tripp . 5 W. R. Mis. 40

73.

Decree for pusscs-

sioro and mesne profits —Separate applications for
execution. The holder of a decree for possession
and wasilat is not obHged to apply for execution of
both within three years from the passing of the de-
cree. He may first apply for execution as to pos-
session and costs, and then, within three years from
the date of such application, seek to enforce the
decree as to wasilat. Bttrodakant Roy v. Ram
KisoBE Dtjtt .... 8 W. R. 99

Jogesh Prokash Gangooli v. Kalee Coomar
Roy 8 W. R 274

74 . Application in aid

of execution — Possession — Wasilat. Where a de-
cree is one for possession with wasilat from the
date of dispossession to the date of suit an applica-

( 7567 )

DIGEST OF CASES.

( 7568 )

LIMITATION ACT (XV OF 1877)— contd.
Schedule II — contd.

Art. 179— conkl.

4. STEP IN AID OF EXECUTION— comW.

(d) Suits and other Pkoceedings by Decree-
holder — contd.
tion for wasilat, if not made within three years from
the first application in execution, is barred. Hem
Chunder Chowdhry v. Brojo Soondury Debee
I. L. K. 8 Calc. 89
10 C. L. R. 272

75.

Application for

execution of decree — Application for execution of
portion of decree. Where a decree-holder, in the
execution of a decree for the possession of land,
mesne profits, and costs, apphed for and obtained
possession of the land and costs, and afterwards,
within three years, apphed in execution of the
decree for mesne profits, the execution of tlie decree
for mesne profits was not barred by limitation by
reason of more than three years having elapsed
from the date of the decree. Ram Baksh Singh
V. Madat Alt . . . . 7 W. "W. 95

76.

Application for

execution not " in accordance wih law " — Step in
aid of execution — Subsequent application for exe-
cution— Objection to tJie previous application —
Estoppel — Res judicata. An application for partial
execution of a decree, though not " in accordance
with law," is a step in aid of execution, as con-
templated by cl. 4, Art. 179, Sch. II of the Limita-
tion Act (XV of 1877). A judgment-debtor, who
did not appeal against a previous order for execu-
tion of a portion of the decree, and who did not dis-
pute the vaHdity of such order, cannot in the matter
of a subsequent application for execution of the
remaining portion of the decree, contend that the
first apphcation was not " in accordance with law,"
and that the subsequent apphcation being pre-
sented after the lapse of three years from the date
of the decree, was barred by limitation. Dali-
chand Bhtjdar v. Bai Shivkor

I. L. R. 15 Bom. 242

Kalidas Manchand v. Varjivan Rangji

I. L. R. 15 Bom. 245

Nepal Chandra Sadookhan v. Amrita Lal

Sadookhan . . I. L. R. 26 Calc. 888

77.

Proceedings to as-

sess mesne profits. Act XIV of 1859, s. 20, apphed
only to such decretal orders as were complete in
themselves and ready to be enforced, and not to so
much of a decretal order as directed proceedings to
be taken in order to assess the amount of wasilat
to be recovered by the judgment-creditor, which
were merely a prolongation of the trial, and not
proceedings to enforce the decree. Fuzeelun
V. Keeramut Hossein. . 21 W. R. 212
Bunsee Singh v. Nuzup Ali Beg

22 W. R. 328

LIMITATION ACT (XV OF l877)~co7itct

Schedule II — contd.

Art. 179— contd.

4. STEP IN AID OF EXECUTION— cow^rf.

{d) Suits and other Proceedings by Decei
HOLDER — contd.

78.

Decree for pass

sion and mesne pro/its — Application for executi
for mesne profits, which had been omitted in exti
tion of decree — Civil Procedure Cod.e, 1S77, s. 2,.
Where a party obtains a decree for possession a :
mesne profits under which he obtains possessii
but fails to prosecute his suit for mesne profits at
the execution case is struck oS for default : — H ,
that it is very doubtful if, in any case, the ef ';
of such an order would be to prevent the deci-
holder again applying for execution of that porti
of the decree relating to mesne profits, as long ass
keeps within the provisions of the Limitation/..
It is otherwise under s. 230, Act X of 1877. S -

DHAREE LaLL V. GiRINDUR ChUNDER GhOSE

IC.L.B.^5

79.

Application 'f

ascertainment of mesne profits — Decree for poih
sion and mesne profits — E^ect of striking off ■aj.i-
cation for execution — What are proceedin-gs 4
orders in " execution of decree." An applicatioDr
deUvery of possession of land decreed and )r
ascertainment of mesne profits was made in 12,
more than three years after a previous apphcam
for the .same purpose, and was " struck off ''or
non-service of notice. On a fresh apphcation or
ascertainment of mesne profits in 1895 : — Held, at
that portion of the proceeding or order of 1892 ut'h
related to mesne profits was not one " in execi Jn
of decree ;" that under the circumstances the "e-
sent apphcation was not barred by that procecng
or order ; and that the application was not bied
by limitation, although the claiin to possession /as
barred. Puran Ghand v. Roy Radha Kishen, |i.
R. 19 Calc. 1.32, followed. Bunsee Singh v. I^nf
Ali Beg, 22 W. R. 32S, distinguished. PfAB
Singh v. Raju Singh I. L, R. 25 Calc.^

80.

Defaidt inpfl-

ment of instalments due under decree — Appliiixx^
to make decree absolute under s. S9 of Transt of
Property Act (IV of 1S82). On the 21st Oc}et
1894 the plaintiff and the defendant enterec|nW-
an amicable agreement before a conciliator fo W'
ment of a mortgage-debt due to the former Ijfl'fl'
nual instalments. The agreement was forwjded
to the Court on the 21st D^ecember 1894, to bfiled
under s. 44 of the Dt^kkan Agriculturists' \'^^^
Act (XVII of 1879). Default having been i*ie
in the payment of the instalment, the first of oioa
became due on the 25th January 1895, and hf^
also was not pay the plantifE appled for exeinoQ
by !-ale of the mortgag<-d property. The ??"'•
cation was made on the 6th September 1 89" a™
it was struct off the file for some formal deft oo
the 18th November 1897. Subsequently < t^e

{ 75G9 )

DIGEST OF CASES.

( 7570 )

[MITATION ACT (XV OF 1877)— contd.
Schedule II— cowW.

Art. 179- raw W.

1. STEP IN AID OF EXECUTION— co7iM
If Suits and other Peoceedings by Decree-

1 HOLDER — COntd.

h October 1898, the plaintiff having applied
1 an order absolute for sale under s. 89 of the
'msfer of Property Act (IV of \8S2):— Held,
t.t Art. 179, Sch. II of the Limitation Act (XV
(1877) applies to applications under s. 89 of the
'msfer of Property Act. Held, further that in
t present case the application of September
]'7 should be treated as a step in aid of exe-
cun. Bhagawan Ramji Marwadi v. Ganu

i I. Ii. R. 23 Bom. 644

;}i.

Proceedinr/s to

e.iule decree for costs. Having obtained
6ji of property in satisfaction of a decree, the
c ree-holder had to meet proceedings initiated
l|a third party under Act VIII of 1859, s. 230,
al delayed to execute his decree as far as it
nted to costs : — Held, that the proceedings in
q stion could not be taken to keep ahve the decree
0 save limitation in respect to the costs.
liitooNATH .Iha V. KHUoruT Doss 19 "W. R. 226

Transmission by

|,2.

Cjtof decree for execution. The transmission by
t. Court of one district to the Court of another of
appy of its decree, and a certificate under the
Pivisions of ss. 285 and 286 of Act VIII of 1859,
wji a view to execution in that other district was
iij proceeding " within the meaning of s. 20, Act
3^/ of 1859. Leake v. Daniel 10 "W. R. 337

'3. Application under

01 Procedure Code, 1S59, s. 285. Held, that an

a'licatiou under s. 285 of Act VIII of 1859, being

:i 1 essary and decided step towards the execution

!"crec, was an application to enforce or keep

■ the decree within the meaning of Art. 167,

:i of Act IX of 1871. Husain Bakhsh v.

i. *i('OE . . . . I. U R, 1 All. 525

*• ■ Application for

'>n where transfer is only effectual mode — •
' ocediire Code, 1859, s. 285. ' An application
'xecution of a decree to the Court by which
passed, where the decree could only have
Iictually executed in manner provided by
Act VIII of 1859, was not an apphcation
^ould save limitation. Franks v. Nuneh
. 7N-. W. 79

— " — Application for

•V decree. Held, that an application to the
^ liich passed a decree, that it may be sent
' iition to another Court, is an apphcation to
i« h decree in force within the meaning of the
' 'on Act. Collins v. Maula Bakhsh

I. L. R. 2 AIL 284

, • ' .Application for

,,,-'''r/er of decree under s. 223 of Civil Procedure

LIMITATION ACT {XV OF 18n)-contd.
Schedule II — contd.

Art. 179— cont'L

4. STEP IN AID OF EXECUTION— con/d.

(d) Suits and other Proceedings by Decree-
holder — co7iid.
Code, 1877. An application for the transfer of a
decree under the provisions of s. 223 and the
following section of Act X of 1877 is a step in aid
of the execution of the decree within the meaning of
cl, 4, Art. 179, Sch. II of Act XV of 1877. Latch-
man Pundeh f;. Maddan Mohun Shye

I. Ii. R. 6 Calc. 513 : 7 C. L. R. 521

87. Application for

transfer of decree — Civil Procedure Code, 1882
3. 223. An application to the Court which passed
a decree for its transfer to another Court for exe-
cution under s. 223 of the Civil Procedure Code
is a step in aid of execution, and sufhcieut to keep
the decree aUve within the meaning of the Limita-
tion Act, Sch. II, Art. 179, cl. 4. Nilmony Singh
Deo V. Biressur Banerjee, 1. L. R. 16 Calc. 744,
explained. Collins v. Maula Baksh, I. L. B. 2
All. 284, and Latchman Pundeh v. Maddan Mohun
Shye, I. L. R. 0 Calc. 513, referred to and follo\Yed.
CnuNDRA Nath Gossami v. Gurroo Prosijnno
Ghose . . . I. L. R. 22 Calc. 375

88.

Application for

transfer of decree. An application to the Court
which passed a decree for its transfer to another
Court under s. 223, Civil Procedure Code, is an ap-
plication to the proper Court to take a str^[) in aid
of execution within the meaning of Ait. 179, cl. 4,
Sch. II of the Limitation Act. Chandra Nath
Gossami v. Guroo Prosunno Ghose, I. L. R. 22 Calc.
375, discussed and approved of. Roma Nath Sen
V. GouRi Sankar Khatkee 2 C. "W. N. 415

89. ^ Apijliaition to

retransfer decree for execution — Civil Procedure
Code, 1877, s. 223. Where a decree has been trans-
ferred by the Court which passed it to another Court
for execution an application to the latter Court to
return the decree to the Court which passed it for
further execution is a step in aid of execution with
in the meaning of cl. 4, Art. 179, Sch. II of the Limi-
tation Act, 1877. Krishnayyar v. Vknkavya-
I. L. R. 6 Mad. 8r

90.

Transmissio7i of

decree for execution — /[pplication- for execution of
uttachecl decree — CivH Procedure Cod", ss. 223, 228,
273. A decree was j)assed on the 20th February
1878 by the Munsif of M. In November 1878 it
was, in accordance with the j)rovisions of s. 223 of
the Civil Procedure Code, transferred to the Munsif
of J. On the 21st January 1879 an application for
execution of the decree was made to the Munsif
of J, who thereupon issued an order for the attach-
ment of some immoveable property belonging to the
judgment-debtor, and also for the attachment'of
three decrees standing in his Court in favour of the
judgment-debtor against other persons. On the

( 7571 )

DIGEST OF CASES.

{ 7572 )

LIMITATION ACT (XV OF i877)-fo«W.
Schedule II — contd.

. Art. 119— contd.

4. STEP IN AID OF EXECUTION— con^c?.

id) Stjits and other Proceedings by Decree-
holder — contd.
18th March 1882, the decree-holder applied to the
Munsif of J to execute one of these decrees in
his behalf, and he further asked that whatever
might be realized in such execution should go to
the account of the decree which had been trans-
ferred and which was being executed : — Held, that
an apphcation of the 18th March 1882 was per-
fectly legal, and such a proceeding as could keep
aUve the decree of the 20th February 1878 ; and
that a subsequent application for execution, dated
the 12th April 1S83, was therefore not barred by
limitation. An apj>lication to execute an attached
decree is a " sto{) in aid of execution " of the
original decree within the meaning of Art. 179, Sch.
II of the Limitation Act, inasmuch as its object is
to obtain money in order to pay off the judgment-
debtor. Lachman v. Tjiondi Ram

I. li. B. 7 All. 382

91.

Application for

LIMITATION ACT (XV OP 1877)-c,
Schedule II — contd.

Art. 119— contd.

4. STEP IN AID OF EXECUTION— co»W(

id) Suits and other Proceedings by Deoe-

HOLDER — contd.
Act XXV of 1S52, s. 2. Proceedings had in le
High Court for the purpose of getting a Piy
Council order sent down to the lower Court for i;-
cution, whether strictly legitimate or not with nr-
ence to Act XXV of 1862, s. 2, if bond fide efEt«
made by the judgment-creditor to carry into ei;t
that order, must be taken to be proceedings kfi-
iug the decree alive. Lethbridge v. Profd
Sen 19 W. R. H

transmission of decree. Where a decree-holder ap-
pUed to the Court to transmit the decree to another
Court for execution, and on a subsequent date paid
into Court postage stamps for the transmission of
the records : — Held, that, if when the postage
stamps were paid into Court an apphcation was
made to take some step in aid of execution, such
apphcation would be sufficient to give a new
period of limitation. Vellaya v. Jaganatha

I. L. R. 7 Mad. 307
Application for

transmission of decree. On the 2nd March 1887 S
obtained a mortgage-decree against P in the Court
of the Munsif of Hajipore. On the 9th Septem-
ber 1887 <S' applied for execution, and on the 7th
November 1887 the mortgaged property was sold
by the Hajipore Court. On appeal on the 2nd
September 1890, the High Court set aside the sale
on the ground of want of jurisdiction. There-
upon, on the 6th September 1890, S apphed to the
Hajipore Court to transfer the decree for execu-
tion to the Munsif s Court at Muzaffarpore. On
the 19th December 1890 S apphed for execution
to the Muzaffarpore Court. L, who had mean-
while purchased the mortgaged property from P
objected that the apphcation was barred : — Held,
that the application was not barred, as the ap-
phcation of the 6th September 1890 was a step in
aid of execution. Nilmony Singh Deo v Biressur
Banerjee, I. L. R. 16 Cole. 744, distinguished.
Latchman Pundeh v. Maddan Mohun Shye, I. L. R.
6 Calc. 513, referred to. Rajbullubh Sahai
V. Joy Kiseen Pershad alias Joy Lal

I. L. B. 20 Calc. 29

93. — Proceedings to get

Privy Council decree sent down for execution —

94.

Attempt to tie

accounts. An attempt at settlement of account n
Court is sufficient to keep a decree aUve. Fu;i.-
utoonissa v. Ch utter Dareb Singh I

6 W. R. Mi8.l8

95.

Applicationjr

execution after decision of case on solehnarh.
Where parties to a suit which had been decri,
entered after remand into compromise, and sd
a solehnamah, in accordance Avith which the Se
was decided : — Held, that an apphcation to exe'te
the solehnamah was not a proceeding taken m
the basis of the decree, and, being therefore illcil,
could not keep the decree alive. Preo Mad'B
Sircar v. Bissumdhur Sircar . 15 "W. R. .4

Proceedings in-e-

cutian to enforce barred, decree — Compromise of
decree, payments under. Where a decree-holden-
tered into a compromise with the judgment-debr,
agreeing to accept payment by instalments, wJh
M^as ratified by the Court executing the decree he
case being struck off the execution file on the Ipis
of the compromise and, more than three years : et
the date of the Court's order sanctioning the (Q-
promise subsequent proceedings were taken b-
decree-holder to enforce the original decree : — J
that such subsequent proceedings, when exv<
of the original decree bad been already ban
hmitation, could not avail to keep the decre«
Stowell v. Billings . I. L. R. 1 All. *'

97. Application'or

execution of decree — Partial satisfaction undei'f
rangement made through Court. A, a judgnjit-
debtor, being arrested in execution of a d:"ee
apphed in the year 1873, under s. 273 of Act Vliof
1859 for his discharge. The Court refused t(?D-
tertain the apphcation except on condition tt^A
should pay into Court a certain fixed sum of rnfij
per month on behalf of the judgment-creditorii
accepting these terms, was thereupon dischaJO.
and the execution -proceedings struck off the ^^^■^'
in comphance with the directions of the Court, i-de
regular payments into Court until October ii»
when he discontinued payment i—Held, on an apU-
cation made in June 1877 by the judgment-cretoi

( 7573

DIGEST OF CASES.

( 7574 ,)

IMITATION ACT (XV OF 1877)-fo'iW.

Schedule II — conid.

Art. 179— contd.

l STEP IN AID OF EXECUTION— coH/rf.

(, Suits and other Proceedings by Decree-
holder — conid.
f a warrant of further arrest against A, that inas-
r :h as the decree-holder was not seeking to en-
f e by means of execution the arrangement made
I the Court in 1873, but was rather attempting
t xeci.te the original decree, such application was
\ red more than three years having elapsed since
t date of the last application for execution of
8 1 decree. Hurronath Bhunjo v. Chunni
I Ghose

I. L. R. 4 Calc. 877 : 3 C. L. E. 161

8. Application to en-

l e arrangement made through the Court. Where
t decree-holder sought to enforce the arrangement
r'ieby the Court for satisfaction of the decree,
1 itation was held not to apply. Radha Kissobe
] iE V. Aftab Chandra Mahatab

I. li. E,. 7 Gale. 61

Kisthandi — Ex-

it ion of time for limitation by agreement of parties.
/ btained a decree against B on the 17th Septem-
h 1853. The decree was kept in force by sundry
p:eedings, the last of which was taken on the
3a December 1864. On the 6th February 1865,
t parties filed a kistbandi, whereby they agreed
1 1 the amount due under the decree should be
f able by instalments, the first instalment to fall
o on 14th July 1S65 ; at the same time an existing
aichment was given up. On 14th July 1868, A
a lied for execution of the decree in respect of six
iialments due under the kistbandi. Held (MiT-
T|, J., dissenting), that the Court could not
r agnize any arrangement between the parties en-
l«jing the period of limitation allowed by law for
t execution of decrees, or which alters the terms
O'he decree. The filing of the kistbandi and
f'|iquishment of the attachment were not a pro-
c ling to enforce the decree or keep it in force.
i cution of the decree was barred by limitation.
*|3H»A Kamal Singh v. Hiru Sirdar
j 4 B. li. R. F. B. 101

c Kbisto Komal Singh v. Huree Sirdar
j 13 W. R. F. B. 44

pO. . Receipt of instal-

"1^ under compromise out of Court, llie receipt
0 nstalments by a decree-holder out of Court in
Fsuance of a compromise made between him and
Diiudgment-debtor is not a proceeding to enforce
Oieep iu force a decree. Nor can the condition in
*''mproinise that on default being made in a cer-
"j number of instalments the decree should be
*yUt€d m full, prevent limitation from running.
A 0 Imam v. Benee Ram . 5 H". W. 100

f}-- — Application re-

V ing adjustment by parties. An application by a

LIMITATION ACT (XV OF 1877)— c.;.',<^/.
Schedule II — contd.
Art. 179— contd.

4. STEP IN AID OF EXECUTION— co«/rf.

(d) Suits and other Proceedings by Decree

holder — confd.
judgment-debtor stating that the proceedings in
execution had been adjusted and he bad paid the
decree-holder RIO and would pay him the balance
of the decretal amount subsequently, and prajnng
that the execution case might be struck oil, is an
application to " keep in force the decree " within
the meaning of Art. 167, Sch. II of Act IX of 1871,
and a " step in aid of execution of the decree "
within the meaning of Art. 179, Sch. II, of Act XV
of 1877. Ghansham v. Mukha

I. L. R. 3 All. 320

102.

Execution of de'

cree — Certificate by decree-holder of payment out of
Court — Civil Procedure Code, ss. 257, 258. Held,
following Tarini Das Bnndyopadhyn v. Bishtoo Lai
Mukhopadaya, I. L. R. 12 Calc. 60S (Tyrrell,
J., doubting), that an application made by decree -
holder, the object of which is that the receipt of
certain sums of money paid out of Court may ^be
certified, is a " step in aid of execution," such as
will keep the decree ahve, within the meaning of
the-Limitation Act (XV of 1877), Sch. II, Art. l7!)
{4)' Oansham v. 3Iutha, I. L. R. 3 All. 320,
referred to. Muhammad Husain Khan v. Ram
Sarup . . . . I. L. R. 9 AU. 9

103.

-Application to re-

cr/rd certificate of payment by judgment-debtor in
part satisfaction. An appUcation by a judgment -
creditor to bring an execution -proceeding on the
file, and to record his certificate of the payment
of a sum of money by the judgment-debtor, id an
application to take some step in aid of execution ot
the decree within the meaning of cl. 4, Art. 179 of
Sch. II of the Limitation Act. Tarini Das Band-

YOPADHYA V. BiSHTOO LaL MuKHOFADAYA

I. li. R. 12 Calc. 608

104. AppUcation ly
decree-holder under Civil Procedure Code, s. 25S,
to enter up payment made under decree. The ex-
pression " .''tep in aid of execution " in Act XV of
1877, Sch. II, Art. 179, cl. 4, was intended to cover
any application made according to law in further-
ance of the execution-proceedings under a decree.
It includes applications made by a decree-holder
under s. 258 of the Civil Procedure Code to enter up.
part satisfaction of the decree. Per Mahmood, ./.
— Provided that the payment asserted in the appli
cation was actually made. Sojan Singh v. Hika
Singh . . . . I. L. R. 12 AIL 399

105. — — Application to

record certificate of payment by judgment-debtor in
part sntisfaction--Civil Procedure Code, 1882, s. 25S.
An application made by some of the judgment-
debtors (and signed by the decree-holder) to hava

( 7575 )

DIGEST OF CASES.

( 7576 )

LIMITATION ACT (XV OF 1817)— contd.
Schedule 11— contd.

-Art. VI9— contd.

4. STEP IN AID OF EXECUTION— confd.
(d) Suits and othee Peoceedings by Deceee-

HOLDEE COnfd.

certain payments, which were made out of Court,
certified under s. 258 of the Civil Procedure Code,
and that time be allowed to pay the balance of the
decree, the attachment put upon their property
continuing;, is " step in aid of execution " such as
will keep the decree alive within the meaning of the
Limitation Act, Art. 179, cl. 4. Wasi Imam v.
PooNiT Singh . . I. L. R. 20 Gale. 696

106.

Application for

sanction to an agreement to give time to a judgment-
dehtor — Limitation Act, s. Id — Deduction of time
of proceeding in Court without jurisdiction. On
an application made in June 1892 for execution
of a decree, for the payment of a sum of money by
instalments, passed in 1883 by a subordinate Court,
it appeared that the subordinate Court, after exe-
cuting it in part, had transferred it to the Presi-
dency Court of Small Causes, which proceeded to
execute it up to the 23rd f ebruary 1887, and that,
on a further application made on the 5th March
1888, it was discovered that the transfer of the
decree was a mistake as the amount exceeded
R2,000, and the decree was returned to the subor-
dinate Court on the 5th July 1888. On the 2Gth
February 1889, an application was made to the
subordinate Court to sanction an agreement to give
time for the satisfaction of the judgment-debt under
Civil Procedure Code, s. 257A, but sanction was
never given, and on the 28th July 1891 the decree-
holder applied to have the decree transferred to
another Court ; and in September applied for
execution and reahzed R250 towards the debt : —
Held, by Paekee, J., that the time during which
the decree was in the Presidency Court of Small
Causes should be deducted in the computation of
the period of hmitation for the present apphcation
under Limitation Act, s. 14, cl. 3. Held, by
Shephaed and Best, JJ., that, whether or not
such deduction should be made, the present
apphcation was barred by limitation for the reason
that the apphcation on the 2r)th February 1889
was not a step in aid of execution. Baeeow v.
Javeechund Sett . I. L. R. 19 Mad. 67

107.

A pplication for

time — Application to review the order striking off
the execution case and to restore it to fie. A decree
which directs the reahzation of the decretal amount
by sale, in the first instance, of the mortgaged
properties, and afterwards from the persons and
other properties of the defendants, is a mortgage
decree, — and not " a decree for the ])ayment of
money " within the meaning of s. 230 of the Civil
Procedure Code. Application for time is not " a
step in aid of execution ;" but an application for
review of an order striking off an execution case and

LIMITATION ACT (XV OF 1877)— con(

Schedule II — contd.
Art. VIQ— contd.

4. STEP IN AID OF EXECUTION— coti/

{d) Suits and othee Peoceedings by Deck

HOLDEE — conid.
for its restoration to the file is undoubtedly a ?r
in aid of execution within the meaning ofie
Limitation Act (XV of 1877), Sch. IT, Art. 9,
Kabtick Nath Pandey v. Juggernath :.m
Maewari . . . I. L. R. 27 Calc. Jfi

108.

Agreemerd ten-

pend execution. An agreement to suspend exec dd
for a specified time was not a " proceeding " w in
the meaning of s. 20, Act XIV of 1859. Me r-
oonissa v. Roush.\n Jehan . 17 "W. R. J6

109.

Applicaticr k

stay execution. Held, that an application by he
decree-holder for the stay of execution-proceec gs
is not an apphcation to enforce or keep in force he
decree within the meaning of Art. 167, Act. I of
1871. Fakie Muhammad v. Ghulam Hus4
I. L. R. 1 All. JO

110. Applicatior by

decree-holder to release portion of property m
attachment and have case struck off tue (ile.ln
execution of a decree, certain property was atta ed
and the sale-proclamation issued and served, ior
to the sale, the decree-holder apphed to the (irt
executing the decree to release a portion of the'o-
perty from attachment, and stating that he ha at
the request of the judgment-debtor, decided n to
proceed with the sale, asked that the sale r'ht
be postponed and the case struck of! the file .he
attachment, so far as the remainder of the projfty
was concerned, being maintained. The apph&|On
was acceded to and the case struck off the file. On
a subsequent apphcation to execute the decrtf—
Held, that the above apphcation was not an .'pli-
cation to take some step in aid of execution c'^"
decree within the meaning of cl. 4, Art. 170 i '
II of the Limitation Act of 1877, as it had
the effect of temporarily retarding the exc
and that the apphcation to continue the attacli
under the circumstances of the case, even
posing it to have been a substantive appli'
apart from the other prayers coupled with i'
merely the effect of leaving things precisely
they were, and did not advance the executi "■
any respect whatsoever. Abdul Hosse
Fazilun . . . I. L. R. 20 Calc

.66

111.

continue attachment, but to stay sale.

AppliccAio,

Undethe

Civil Procedure Code (Act VIII of 1859), an ap
tion to the Court to continue the attachmei
immoveable property, but to stay the sale
held to be a proceeding to keep in forcctne
decree. Nukanna v. Ramasami ,.,,0

I. L. R. 2 Madilo

( 7577 )

DIGEST OF CASES.

( 7578 )

MITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

' Art. IIQ— contd

h. STEP IN AID OF EXECUTION— to«/f/.
( Suits and other Pkoceedikgs by Deceee-

HOLDEK — contd.

12. - — ■ Application

tee-hdder for jiostpoitement oj sale — Application
t ake some step in aid of execution of decree. An
£)licauon by a decree-holder for the postpone-
I :it of a sale in execution of the decree on the
cund that he had allowed the judgment-debtor
t 3, is not " an apphcation according to law to
t oroper Court for execution, or to take some
£j in aid of execution, of the decree," within
t| meaning of Art. 179, Sch. II, Act XV of 1877,
a limitation cannot be computed from the date
ciuch an application. Mainath Ktjari v. Debi
IojshRai . . . I. li. R. 3 All. 757

13. Application to

} 'pone sale. Certain lands having been attached
iixecution of a decree, the judgment-debtor ap-
jj d to the Court to postpone the sale of some of
t; lands until others had first been sold. The
V ii for the decree-holder consented in part to
t;, application, but insisted that certain other
ii 1 should also be sold in the first instance : — Held,
ii". this act of the vakil was a sufficient applica-
t^i to the Court to take a step in aid of execution
W|iin the. meaning of ArL 179 of Sch. II of the

Liitation Act, 1877. Dharanamma v. Subba
j I. Ii. R. 7 ]

(ee Vellaya v. Jaoanatha

7 Mad. 3 0
I. L. E. 7 Mad. 307

'L4.

Application to

j)ipone sale on consent of parties. Apphcation for
* ''ution of a decree was made on the 22nd Novem-
b| 1875, and in pursuance of such application
c<!ain property belonging to the jiidgment-debtor
wj advertised for sale on the 27th March 1876.
Oithe latter date the parties to such decree made
« :nt apphcation in writinsr to the Court, wherein
it'ns stated that the judgment-debtor had made a
Wjiin payment on account of such decree, and the
d'; ee-holders had agreed to give him four months'
ti;! to pay the balance thereof, and it was prayed
tlj such sale might be postponed and such time
njht be granted. The Court on the same day
'I <-' an order on such application postponing such

The next application for execution of such
^vas made on the 17th January 1879. The

Appellate Court held, with reference to the
^I'lion whether such application had been made
*|in the time limited by law, that it had been so
»|e, as under Art. 179 (6), Sch. II of Act XV of
1«], such time began to run from the date of the
*>iration of the period of grace allowed to the
l« ment-debtor under the application of the 27th
JWbh 1876 -.—Held, that Art. 179 (6) had not any
«|.-ancy to the present case ; but inasmuch as the
P' eedmgs of the 27th March 1876 might b • con-

lilMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

Art. IIQ— contd.

4. STEP IN All) OF EXECUIION— fo«W.

(c^) Suits and other Proceedings by Decree-
holder — contd.
sidered as properly constituting a " step in aid of
execution " within the meaning of Art. 179 (4), the
application of the 17th January 1879 was within
time. Sitla Din v. Sheo Prasad

I. Ii. R. 4 All. 60

115.

Oral application

for proclamation of sale. An oral apphcation, on a
sale of immoveable property in the execution of a
decree having been adjourned for the fixing of a
fresh date for the sale, is an apijlication to enforce
the decree within the meaning of Art. 167, 8ch. II
of Act IX of 1871. An application to enforce
the decree made within three years from the date
of such an oral apphcation will therefore be within
time. Amah Singh v. Tika . I. L. R. 3 All. 139

See Ambica Persad Singh v. Scrdhari Lal
I. L. R. 10. Calc. 851

116. Application)or

proclamativn of sale — Step in aid of execution.
An application to a Court to issue a proclamation
of sale in respect of property already attached in
execution of a decree is an application within the
meaning of cl. 4 of Art. 179, Sch. II of Act XV of
1877, " to take some step in aid of execution of the
decree." Chunder Coomar Roy v. Bhogobuity
Prosonno Roy, I. L. R. 3 Calc. 235 .• 1 G. L. R.
23, explained. Ambica Pershad Singh v. Surd-
HARi Lal , . . I. Ii. R. 10 Calc. 851

117. Verbal applica-
tion for the sale of attached property. An apph-
cation to the Court to order the sale of property
which has been attached is an apphcation to take
some steps in aid of execution ; and as the Civil
Procedure Code does not require a formal apphca-
tion, it is immaterial whether the apphcation be a
verbal one or in writing. Ainhica Pershad Singh v.
Sxirdh<iri Lal, I. L. R. 10 Calc. Sol, followed.
Maneklal Jaqjivan r. Nasia Raddha

I. L. R. 15 Bom. 405

118. Application to

execute decree — Application for sale of properly
under attachment. The apphcation contemplated
by Art. 179 of Sch. II of the Limitation Act, and
described as " an apphcation for the execution of a
decree or order of any Civil Court, etc., etc.," is an
application within the terms of s. 235 of the (Mvil
Procedure Code, that is to say, an apphcation
setting the Court in motion to execute a decree in
any manner set out in the last column of the form
prescribed ; but having so set the Court in motion,
any further apphcation, during the continuance
of the same proceeding is an application to take
some step in aid of execution within the terms of
cl. 4 in the last column of Art. 179 of the Limit-

( 7579 )

DIGEST OF CASES.

{ 7580 )

LIMITATION ACT (XV OF 1877)— conta.

Schedule II — contd.
Art. 179— contd.

4. STEP IN AID OF EXECUTION— con^ci.
{d) Suits and othkr Proceedings by Decbee-

HOLDER — contd.

ation Act. An application, therefore, for the sale
of property under attachment is an application
merely in aid of an execution then proceeding.
Chowdhry Paboosh PvAm Das v. Kali Pttddo
Banertee . . . I. L. K. 17 Calc. 53

119, Application to

sell attached property sulject to a mortgage. A
judgment-creditor apphed, on the 22nd May 1882,
for execution of a decree, dated 7th November 1881,
and certain property of the judgment-debtor's was
attached. Thereupon a claim was preferred by a
mortgagee, and on the 10th August 1882 the judg-
ment-debtor admitted the claim and applied that
the property might be sold subject to the
claimant's mortgage, and the proceeds, if any,
paid over to him in part satisfaction of his decree.
On the 20th June 1885 another application was
made for execution, and on the 29th November
1886 a third apphcation was made. To the latter
apphcation objection was taken, and it was con-
tended that the decree was barred by reason of
more than three years having elapsed between
the apphcation of the 22nd May 1882 and that of
the 20th June 1885. Held, that the apphcation of
the 10th August 1882 by the judgment-creditor to
allow the sale of attached property subject to the
mortgage of the claimant was " a step in aid of
execution of the decree" within the meaning of Art.
179, Sch. II, Act XV of 1877, and that execution of
the decree was therefore not barred. Lalraddi
Mttllick v. Kala Chand Beba

I. Ii. K. 15 Calc. 363

120.

Application by

transferee of decree for sale of hypothecated pro-
perty— Non-registrntion of deed of assignment —
Civil Procedure Code, s. 232. On the 13th Novem-
ber 1886 the assignee of a decree for sale on hy-
pothecated property applied, under s. 232 of the
Civil Procedure Code, for execution of the decree,
but, objection being raised that the deed of assign-
ment had not been registered, subsequently appUed
for the return of the deed that it might be regis-
tered, and it was returned accordingly. The deed
was afterwards duly registered. The next applica-
tion for execution of the decree was made on the
25th April 1888 -.—Held, (i) that the deed of assign-
ment was not a document which comprised im-
moveable property within the meaning of s. 49 of
the Registration Act (III of 1877), a decree for
sale not being immoveable property as defined in
s. 3 ; (ii) that consequently, although the assignee
miglit not under the latter portion of s. 49 use the
deed for the purpose of proving his title, there was
no provision in the Act saying that he should not
take title under the deed ; (iii) that the position of

LIMITATION ACT (XV OF 1877)-f07!/.
Schedule II — contd.

Art. IIQ— contd.

4. STEP IN AID OF EXECUTION~canW

{d) Suits and other Proceedings by DecbS-

HOLDER — contd.
the assignee when he made his apphcation on 3
10th November 1886 was that he was unable >
prove that there was a title by assignment »
himself ; (iv) that the subsequent registration cu i
the absence of registration on the 13th Noveror
188G, and under s. 47 of the Registration Act s
document thereupon had full effect, and relr i
back to its execution ; (v) that the apphcatioi; f
the 13th November 1886 was a step in aid of exe.-
tion of the decree within the meaning of Art. ]),
cl. 4. of 8ch. II of the Limitation Act (XV of 18" ,
and that the application of the 25th April 1.'^
was within time. Abdul Majid v. Muhamj)
Faizullah . . . I. L. R. 13 All. )

121. . ApplicalioTiy-

decree-holder for leave to bid at sale. The makg
of an apphcation by the decree-holder for leave d
bid at the sale in execution of his decree is "a s?
in aid of execution " within the meaning of el:.
Art. 179, Sch. II of the Limitation Act (7
of 1877). Bansi v. Sikbee Max

I. L. R. 13 All. 1

122. Applicaiiay

decree-holder for leave to bid. An application by e
decree-holder for leave to bid at the saleinexd-
tion of the decree is not a step in aid of exeoum
within the meaning of the Limitation Act, Soh.I,
Art. 179. Toree Mahomed v. Mahomed Mabt',
I. L. R. 9 Calc. 730, and Ananda Mohan Bqr'.
Hara Sundari, 1. L. R. 23 Calc. 196, referredj).
Bansi v. Sikree Mai, I. L. R. 13 All. 211, disser.d
from. Raghunundun Misseb v. KallyjT
MissER . . . I. L. R. 23 Calc. llO

123. Applicatiofy

decree-holder for leave to bid at the auction-sale. ^B
application by a decree-holder for leave to bif't
the sale of his judgment-debtor's immoveable
perty is an application to the Court to take ;i
in aid of execution of the decree, and falls \^ 1
the words of Art. 179, cl. 4, of the Limitation
(XV of 1877). Vinayakbao Gopal Desiim

V. V'^INAYAK KbISHNA DhEBRI

I. L. R. 21 Bom. jl

124. Application

the decree-holder for leave to bid at a sale in f-
cution of his decree — Civil Procedure Code, l?t
s. 294. An application for leave to bid at a to
in execution under s. 294 of the Code of ([i^
Precedure is an apphcation to take some step injid
of the execution of the decree within the meaninoi
Art. 179 {4) of the second Schedule of the Inan
Limitation Act, 1877. Bansi v. Sikree Mai, 1^-
R. 13 All. 211, followed. Raghunan-ian M'"

( 7581 )

DIGEST OF CASES.

7582 )

I MITATION ACT (XV OF 1811)— conld.
Schedule 11— roiM.

Art. 179— co»W.

I. STEP IN AID OF EXECUTION— cmtd.

((iSriTS AKD OTHER PeOCEEDINGS BY DeCEEE-
HOLDER — lOJiid.

vKallydut Misser, I. L. B. 23 Calc. 690, dis-

si.ed from. Dalel Singh v. Umrao Singh

I. li. E. 22 All. 399

LIMITATION ACT (XV OF 1877)— ^onW.
Schedule II — contd.

Application to

id.

n ive povndnge fee — Applicntion for the return of
a -fee partially executed hy the Court where trans-
/( ' for execution — Civil Procedure Code, 1S82,
$. ?;'5. Neither an application, by a decree-
h ler to receive poundage fees from him in respect
0 ome of his judgment-debtor's property pur-
Cijied by himself, nor an application for the re-
ti I to the decree-holder of a decree made to a
C rt to M'hich it has been transferred for execution,
ai by which it has been partially executed, is a
St in aid of execution within the meaning of the
L itation Act, Sch. II, Art. 179, cl. 4. Krishnay-
y( r. Venlcayyar, I. L. It. 6 Mad. 81, distinguifeh-
ei Aghoee Kali Debt v. Peosunno Coomae
B EBJEE . , I. L. R. 22 Calc. 827

i6. — Application to

n've pormdage fee — Application to set off the pur-
de-money against the decree, instead of paying
it to Court. Neither an ap])hcation by a decree-
hi er to receive a poundage fee from him in respect
cf he judgment-debtor's property purchased by
hiielf, nor an application hy him to be allowed
toit off the purchase-money against the decree,
in 'ad of paying it into Court, is a step in aid of
es ution wthin the meaning of the Limitation Act,
&; II, Art. 179, cl. 4. Aghore Kali Debt v. Pro-
«"|0 Coornar Bancrjee, I. L. B. 22 Calc. S27 ,
fo;wed. Badha Prosad Singh v. Sundar Lai,
*•■. B. 9 Calc. 644, distinguished. Ananda
M'AN Roy v. Hara Sxjndaei

I I. L. R. 23 Calc. 196

o'liecntion within cl. 4'of Art. 179 of Scli. II of

tli:[.iniitation Act. Amhica Pershad Singh v.

'' ^""•; Led, I. L. B. 10 Calc. H61, referred to.

KA Nath Pahari v. BnrPENDRA Narain

. I. L. R. 23 Calc. 374

.,i'*' Paijment of

^'^o—Payment of process-fee. Quo-re : AYhether
*lpayment of bhatta is .sufficient proof of an
«!; cation to the Court to take the step in respect
o'liich the bhatta is paid. Mere payment of a
pri?66-fep under circumstances from which no
■»?! cation can be inferred does not satisfy the
!:?" iFPinents of the article. Trimbak Bapuji
ABDHAN t'. Kashi Nath Vidyadhar Gosavi
I. L. R. 22 Bom. 722

Deposit of pro-

A depo.sit of a process-fee is a step in aid

Paijmcnt of p^ro-
The mere payment of process-fee for the

Art. 119— contd.

4. STEP IN AID OF EXECUTION— fan</i.

(d.) SuiT.s and other Proceedings by DecbeJ:-

HOLDER — COVtd.

issue of notice for the purpose of an inquiry under s.
287 of the Code of Civil Procedure, or the payment of
costs for the issue of a proclamation of sale, un-
accompanied by any application, will not operate to
give a fresh starting-point for limitation within the
meaning of Art. 179 (4) of the second Schedule to
the Indian Limitation Act, 1877. Har Snhai v.
Sham Lai, All. Weekly I^'otes (1900) 8S, and
Durirkannth Appaji v. Anandrao Bamchandra,
I. L. B. 20 Bom. 179, followed. Barmha Nand v.
Sarbishwara Nand, All. Weeliy Notes to (1883)
247, distinguished. Badha Prosad Singh v. Sundar
Lall, 1. L. B. 9 Calc. r>44, dissented from. Tha-
KUE Ram v. Katwaru Ram

I. L. R. 22 All. 358

130. Payment of defi-

cient Court-fee. An application for execution of a
decree was presented on the 17th July 1S90. ^A
notice under s. 248 of the Code of Civil Procedure
(Act XIV of 1882) was issued on the ISth .luly
1890. The process-fee for service of the notice being
deficient, the decree-holder paid the deficiency on
the 29th August 1890. On the 22nd August 1893,
the decree-holder presented a fresh apphcatiou for
execution : — Held, that the second application for
execution was time-barred. The payment of the
additional Court-fee was not " a step in aid of exe-
cution of a decree " within the meaning of cl. 4,
Art. 179, of Sch. II of the Limitation Act (XV of

1877). DWAEKANATH APPAJI V. AnANDEAO

Ramchandra . . I. Ij. R. 20 Bom. 179

131.- . Applications to be

substituted on the record as a party and for nctice
of executicm to issue to representative of judgment-
debtor — Civil Procedure Code, 1882, s. 230 — Appli-
cation for execution of decree — Continuous proceed-
ings. A obtained a decree against B upon an award,
which directed that the sum of R 1,840 awarded
to A should be recovered with interest by attach-
ment of the mortgaged property and not by a .sale
except in case of its being held that the property
was not liable to attachment. On the 12th Octo-
ber 1874 A applied for execution of the decree and
thereupon the mortgaged property wa-; attached
and placed under the management of tho Collector,
who ])aid the proceeds from time to time into Court
till 1891. The Court paid the proceeds to A on the
2.'>th February 1870, the 5th February 1877, and the
7th October 1877. In 1878, A being dead, his .son
C applied to the Court to be made a party to the
record and to be allowed to continue the execution-
procecdincs. In 1880 C apphed to the Court under
s. 248 of the Code of Civil Procedure (Act XIV of
1882) to i.ssue notice to D as B's heir and legal re-
presentative, to show cause why the decree should

( 7583 )

DIGEST OF CASES.

( 7584 )

LIMITATION ACT (XV OF 1877)-co«/(/.

Schedule II — contd.
Art. 179— contd.

4. S'JEP IN AID OF EXECUTION— co«<(Z.
{d) Suits asv other Proceedings by Decree-

HOLDER~COW/fZ.

not be executed against him. D did not appear,
and an ex parte order was passed for execution to
proceed as against him. The Collector continued
in management till the 5th February 1892, when
tlie application (darkhast) of 1874 was withdrawn,
and a fresh application was made by C on the 12th
June 1892. D resisted on the ground that the
application, was time-barred under Art. 179 of
the Limitation Act (XV of 1877) -.—Held, that the
appHcation of 1892 was not barred by hmitation,
as the execution-proceedings under the first
darkhast of 1874 were continuously going on during
the whole period that the Collector's management
lasted under the orders of the Court, and as each
year's payment received by the decree-holder was
but a partial step in aid of execution of the
decree. Held, further, that the apphcations made
by C in 1878 and 1880 were also " steps in aid of
execution " within the meaning of Art. 179, cl. 4,
of the Limitation Act. Keshavalal Bechar v.

PiTAMBERDAS TrIBHUVANDAS

I. L. R. 19 Bom. 261

132.

Application for

substitution of the heirs of the deceased judgment-
debtor — Application in accordance with law — Code
of Civil Procedure, 1882, ss. 234, 235, 248, and 273.
An application by the judgment-creditor for substi-
tution of the heirs of the deceased judgment-debtor
though disallowed, is an appHcation in accordance
with law to take some step in aid of execution of
the decree within the meaning of sub-s. 4 of Art.
179 of the Limitation Act. An application by the
judement-creditor for the execution of his decree,
which has been attached, as well as an application
by him to execute another decree which he had
attached in execution of his own decree, though
disallowed, are applications in accordance with
law. Adhar Chandra Das v. Lal Mohun Das
I. L. R. 24 Calc. 778
1 C. W. N. 676

133.

Application by

decree-holder to be put in possession of property
which he has purchased at a sale in execution of
his decree. An applicaton made by a decree-holder
to be put into possession of property which he has
purchased at an auction-sale held in execution of
his decree is a " step in aid of execution " of that
decree, and would afford the decree-holder a fresh
starting-point for limitation. Sujan Singh v. Hira
Singh, 1. L. R. 12 All. 399, referred to. Moti
Lal v. Makdnd Singh . I. L. R. 19 All. 477

Sariatoolla Molla v. Raj Kumar Roy

I. L. R. 27 Calc. 709
4 C. W. W. 681

LIMITATION ACT (XV OF 18n)~contd

Schedule II — contd.
Art. 179— contd.

4. STEP IN AID OF EXECUT10.\-co««.
(d) Suits and other Proceedings by Deck:-

HOLDER C07i1d.

134. Execution '

decree — Limitation Act {X F of 1877), Sch. II, At.
178, 179 — Limitation — Interruption of execute
proceedings — Revival of previous application •
execution. The circumstances under which exe-
tion -proceedings are struck off will usually ^
questions of fact, and must be determined uJi
the facts. \\'here a decree-holder has made !
appHcation within time, and has obtained an ort
granting his request, and the completion of tit
order is suspended by some obstacle which 'e
decree-holder has to remove before he can t
satisfaction of his decree ; and where, it may e
after an interval of three years, having remod
that obstacle he returns to the Court and pr s
that the order which he got years ago may now e
carried to completion ; his appHcation is not a fih
appHcation, but one praying the Court to re^e
the suspended order and permit it to be pusd
through to completion. But this will not be ,e
case where the decree-holder himself has a(d
dilatorily, and thereby been the cause of dela;'n
the proceedings for execution. Paras Ram'!.
Gardner, I. L. R. 1 All. 355 ; Raghubans Gw.
Sheosaran Gir, I. L. R. 5 All. 243 ; BoobooPyio
Tuhobildarinee v. Syud Nazir Hosscin, 23 WR.
183 ; Kalyanbhai Dipchand v. GhanashindalJf
nathji. I. L. R. 5 Bom. 29 ; Basant Lal v. lU
Bibi, I. L. R. 6 All. 23 ; Baikanta Nath Mm
v. Aughore Nath Bqse, I. L. R. 21 Calc. ^' .
Chandra Prodhan v. Gopi Mohun Saha, I. L. 1
Calc. 385, and Raghunath Sahay Singh v. ;
Singh, 1. L. R. 23 Calc. 397, referred to. Thj -
PRAS.4D V. Abdul Hasan (1900) I

I. L. R. 23 A118

135.

Applied'.

execution more than three years after previous
cation — Omission on part of judgment-debtor
up bar by limitation — Adjudication on a/'
tion — Subsequent application in execution
jection on ground tliat previous application
barred — Res judicata. A decree was obtauu
16th March, 1893, and a petition in executioi
presented on 8th February, 1894. The nexi
tion in execution was presented on 2nd
1897, when the judgment-debtor, though In
notice of it, did not raise the defence of limit
An order was passed on the petition for the i>^
a warrant for the arrest of the defendant, an
warrant was duly issued. Within three yetf.*'^
that petition the present application in exec^on
was made, when it was objected that, as the 'P "
cation in 1897 had been presented more than;ii^
years from the previous application in 1894, i'^
"barred, and that in consequence the present 'W

7585 )

DIGEST OF CASES.

( 7586 )

IMITATION ACT (XV of 1877)— conrrf.
Schedule II — contd.

Alt. 119— contd.

. STEP IN AID OF EXECUTION— conW.

(tSuiTS AND OTHER PROCEEDINGS BY DeCREE-
I HOLDER contd.

c. on must also be barred : — Held, that it was not
0 1 to the judgment-debtor now to raise the
0 ction that the application of 1897 was barred,
fl had had notice of that application, and had
r;3d no objection to it. Execution had been
0 Ted in pursuance of it, which was an adjudi-
ci on on the application ; that order was acted on,
a ^n appeal was preferred against it. The ques-
ti whether the application of 1897 was barred
w therefore res judicata. As the Court which had
0! red the execution had jurisdiction to determine
w ther the decree was barred, and had made an
01 T in execution of the decree, it must be con-
sired to have determined that it was not barred.
ii igal Pershad Dichit v. Grija Kant Lahiri Chow-
di; L R. S I. A. 123, followed. Lakshsianan

C TTI V. KUTTAYAN ChETTI (1901)

I. L. E. 24 Mad. 669

i6.

Decree directing

't ttion of muchalka, and costs — Recovery of costs

tnxecation — Application to enforce execution of

m \nlka more than three years previously—Subse-

qtil application for costs incidental to execution-

pnedings. A decree was passed in 1882, direct-

ju 1 defendant to execute a muchalka, no order

IJ^T made as to costs. The Appellate Court

afl'Qed the decree, and also awarded costs. These

■ -vre recovered by plaintiff in execution-pro-

in 1883. Plaintiff now (namely, in Sep-

1 899) sought, in an application in execution

; I'T'v the decree for the execution of the inuch-

w claiming that the application was not barred

\v:rnitation because previous applications in

•1 had been made in 1885. 1886, 1887, 1889,

^''•"> and 1897. The last two applications

' for the recovery of costs incidental to

' xecution-proceedings, and not to enforce

iition, of the muchalka, the last applica-

that relief having been mj,de in 1894 : —

it the application was barred by limita-

le application in 1895 and 1897 for costs

1 to the execution-proceedings were not

"lis for the execution of the original de-

i'V part of it. Apptj Rao v. Ramakrishna

R(1901) . . I. L. R. 24 Mad. 672

Trmi.<f,rof Pro-

" '-' {IV of 1SS2), ss. S8, 89— Decree for sale

^A— .Vo order absolute under s. 89 — Appli-

decree-holder for sale under Civil Procedure

''ler as asked— No further applications in

for more than three years— Then, appli-

^rder absolute, under s. S9—Bar by previous

■ '^'tcree for sale of mortgaged property was

•• 30th August, 1895, under a. 88 of the

of Property Act. No order absolute for

VOL. III.

lilMITATION ACT (XV OF 1811)— contd.
Schedule II — contd.

_ Art. 119— contd.

4. STEP IN AID OF ^XECi:TION-<;on/rf.

(d) SriTS AND other Proceedings by Decree-
holder — contd.
i sale was asked for or made under s. 89 of the Trans-
j fer of Property Act. On 30th September, 1896, the
i decree-holder applied to the Court, under ss. 286
j and 287 of the Code of Civil Procedure for an order
! directing the sale of the mortgaged property ; and
! an order was passed accordingly. This application
I was subsequently dismissed for failure to pay the
expenses. On lOth October, 1896, another appli-
cation for execution was made, but no further step
j in execution was taken for more than three years,
I namely, till 20th November, 1899, when the decree-
; holder applied for an order absolute under s. 89
' of the Transfer of Property Act. He contended
that, as such an order had never been made, he
; was entitled to ask for it, and that, inasmuch as his
application was not one for execution, it was not
barred by limitation under Art. 179 of Sch. II to
the Limitation Act : — Held, that the order passed
I on the application of 30th September, 1896, must
be taken to be an order absolute for sale, as well
as an order directing certain other steps in execu-
tion, and it was in consequence not open to the
decree-holder to apply now for an order under
s. 89 of the Transfer of Property Act. His present
application must accordingly be regarded as an
application for execution, and as such it was barred
under Art. 179 of Sch. II to the Limitation Act.
Venkataraztt v. Chinna Ramayya (1901)

I. L. R. 24 Mad. 695

138.

cl. (4) — Application to take

some step in aid of execution — Order for rateable
distribution — Application to ivithdraw money to
be found due upon such distribution — ^Iini3^
ierial order — Civil Procedure Code (Act XIV of
18S2), s. 295. Where, upon application made
by a decree-holder, an order for rateable distribu-
tion was passed under s. 295 of the Civil Procedure
Code without fixing thj amounts due to the several
decree-holders, and then on a later date the decree-
holder applied for an order to withdraw the moneys
to which he was entitled upon such distribution : —
Held, that the order applied for was not a merely
ministerial order, but a judicial order to be passed
after considering the claims of rival decree-holders.
The application therefore w^s an application to
take some step in aid of execution Mithin Art. 179,
cl. (4), Sch. 11, of the Limitation Act. Hem Chan-
dra Chou-dhry v. Brojo Sundari Debet, I. L. R. 8
Calc. 89 ; Fazal Imam- v. Metta Singh, I. L. R. 10
Calc. 549, Ganga Pershad Bhotnnik v. Debi Sundari
Debea. I. L. R. 11 Calc. 227, and Ananda Mohan
Roy v. Hara Sundari, I. L. R. 23 Calc. 196, dis-
tinguished. Saritoola Molla v. Raj Cumar Roy,
I. L. R. 27 Calc. 709, referred to. Baij Nath
Prosad f. Ghanshyam Dass (1904)

8 C. W. N. 382

11 I

( 7587 )

DIGEST OF CASES.

( 7588 )

LIMITATION ACT (XV OF 1877)— conld.

Schedule II — cmtd.
Art. 179— cmtd.

4. STEP IN AID OF EXECUTION- cowi^i.

(d) Suits and other Proceedings by Decree-
holder — concld.

139. Application for

execution not accompanied by coprj of decree
sufficient to save bar — Step in aid of execution —
Construction of fttatde. An application for
execution presented on behalf of a party entitled
to present it, but not accompanied by a copy of the
decree as required by the Civil Rules of Practice,
is an application 'in accordance with law' within
the meaning of Art. 179, Sch. II of the Limitation
Act, as the defect has reference only to an extran-
eous circumstance, ^^aia^hiva Roghunath v. Rama-
chandra Chintaman, 5 B. L. R. 394, dissented from.
The provisions of the Limitation Act should receive
a fair and not too technical construction. Observa-
tions on the construction of statutes. Where
the decree is more than one year old and the appli-
cation prays for the issue of notice under s. 248 of
the Code of Civil Procedure to the judgment-debtor,
such application in the absence of any provisions
prescribing the form, contents or accompaniments
of an application for issuing notice, will be a s^ep
in aid of execution within the meaning of Art. 179,
Sch. If of the limitation Act. Pachiappa Achari
V. PooJALi Seenan (1905)

I. L. K 28 Mad. 557

140. " Step in aid of

exection''' — A " batta memorandum " praying for
issue of sale proclamation. A so-called " batta
memorandum " which applies for the issue of a sale
proclamation and on which a .sale proclamation is
issued accordingly, is a " step in aid of execution "
within the meaning of Art. 179, Sch. TI of the
Limitation Act, although an order for the issue
of such proclamation might have been made pre-
viously. Maluk Chand v. Bechar Natha, I. L. R. 25
Bom. 639, distinguished. Ambica Pershad Singh
V. Surdhari Lai, I. L. R. 10 Calc. 851, followed.

Vl.JIARAGHAVALTJ NaIDU V. SrINIVASALTT NaIDU

(1905) . . . I. L. R. 28 Mad. 399

(e) Confirmation of Sale.

141. Date from which

limitation runs. Until the order is passed confirm-
ing a sale in execution, the decree-holder must be
considered to be executing his decree, and limitation
begins to run against him only from the date of such
order. Brojungona Dassee v. Shona Mookhee
Dassee . . . . 15 W. B. 15

142.

Proceeding to

icee/j decree in force. Where there is a sale in exe-
cution, the latest act of the decree-holder to keep
his decree in force is the sale which took place at
his instance, not the confirmation of the sale.
Maharajah of Bxjedwan v. Ltjckhee Monee
Debee . . , 8 W. R. 359

LIMITATION ACT (XV OF 1877)— co«/

Schedule II— contd.
Art. 179— conid.

4. STEP IX AID OF EXEOUTION— con<^
(e) Confirmation of Sale — contd.
JuGGUT Mohinee Bibee V. Ram Chund Ghb

9 w. R. :o

Shib Ram v. Banee Madhab Mitter

11 W. B. 7

143. Proceedinpto

keep decree in force. Held, that a confirmation a
sale in execution bv the Court ^vai.s a proceec g
under s. 20, Act XIV of 1^59, and sifficieT':o
keep a decree in force which had been obtainei >y
the purchaser. Chowdhry Sheikh Wahid u

V. MULLICK EnAYET liOSSEIN AlI

12 B. L. R. 500 : 20 W. E31

Go BIND Chund ER Chowdhry v. ,Iohueuln5a
BiBEE 18 W. R. )6

144. Proceedin(, to

keep decree in force. Qumre : Whether a mere n-
firmation of a sale is a proceeding sufficient to Isp
the decree in force. ^Vhere^it was confirmed ;er
objection by the judgment-debtor, and the le-
proceeds received by the creditor, it was held at
that was a proceeding sufficient to" keep the dcee
alive. GuNGA Bishen Chund v.^Dhiraj Maiab
Chand Bahadur

12 B. L. R. 506_note : 10 W R. U

145. ___ ProceeJ:

keep decree in force. Where'the decree-holdc
no step whatever to cause an "execution sal^
confirmed, the confirmation of the sale by th'
cannot be regarded as'a proceeding on his j
wards enforcing the decree. Mullick Enak

V. Wahed Ali . . . . 13 W. E, lo

146. Proceedii io

keep decree in force. Confirmation of a sale ir,se-
cution of a decree by the Court of its own nKon,
and drawing out the proceeds of sale by thexe-
cution creditor, were not proceedings to ei " "
such decree, or to keep the same in force, nith
meaning of "s. 20, .A.ct XIV of Is'iO. 1'
Mahtab Chund Bahadur v. Ram Brahm >
LICK . 4 B. Ii. R. A. C. 15 : 13 W

147. Applic!

execute decree— Order confirmiruj sale. The ni'
of the Court confirming a sale in execution,
act is not shown to have been performed at t
stance of the decree-holder upon petition or
cation, is not an application to the Court t
some step in aid of execution within the mca:
cl. 4, Art 179, Sch. II of Act XV of 1877. y^
DRo Chandra Ghose v. Mohendeo Nath '

10 C. L. P '^y

148. Proceed<i ^

enforce decree — Application for copy of decret On
the 19th of March 1880 a" decree for mone w^
passed, and on the 19th of February 1881 cf'»"'
property belonging to the judgment-debtc ^^

( 7589 )

DIGEST OF CASE&

7690 )

IMITATION" ACT (XV OF 1877)— con(ci. ! LIMITATION ACT (XV OF 1877)— con^c?.

Schedule II — contd.
Art. 179— contd.

.. STEP IN AID OF EXECUTION— co«/c?.

(e) Confirmation of Sale— co»cZi.

so in execution thereof. On the 22nd of April

h the Court passed an order confirming the sale.

0 the 10th i)f January 1882 the decree-holder

.ij led to the Court for a copy of the decree, in

or r that he might make a fresh application for

exution. On the 28th of March 1884 he applied

to xeciition. The judgment-debtor appeared and

pitied that execution was barred by limitation.

'\'\ Court of first instance held that execution was

uo ^rred on the ground that the passing of the

or- of the 22nd of April 1881 was sufficient, un-

de 10 provisions of Art. 179, cl. 4, of the Limita-

ticAct of 1877, to keep the decree alive. The

iO\ • Appellate Court also held that execution

wa not barred by limitation, but solely on the

(ZR. id that the application of the 10th of January

18) was "sufficient to keep the decree alive. It

■'if^iot appear that the order of the 19th of

"• 1881 was passed in consequence of any

111 by the decree- holder, and neither the

ill of the 10th of January 1882 nor any

ri of was put in evidence on the present

>n : — Held, on appeal to the High Court,

execution of the decree was barred by

1. Eajkujiar Banerji v. Rajlakhi

. I. L. R. 12 Gale. 441

Step in aid of

-A i'filication by decree-holder purcliaser

■'■'ilioii of sale, if — Civil Procedure Code

' ■ of 2sv.'), s. SIJ. An application by a

'Ider, who has purchased a property in

II of his own decree for confirmation of sale,

ipplication to take some steps in aid of

:tion of the decree within the meaning of

Sch. II of the Limitation Act. Umesh

' Das v. Shib Narain Mondiil (1905)

9 C. W. N 193

Schedule II — contd.
Art. 179 — contd.

illSCELLANEOXTS AcTS OF DecREE-HOLDER.

*]• z ■ Step in aid of

^on— Leave to bid at sale— Prayer for amount

' to be set off against decree. An application

:"e-holder, in which he not merely asked

' 'J bid at the sale, but further prayed that

lit, which he bid, might be set off against

' d amount due to him was a step in aid of

u-ithin the meaning of Art. 179 of Sch.

Limitation Act. Sujan. Singh v. Hira

■^>. li. 12 All. 39'l, followed. Troylolcya

V. Jyoti Prokash Nandi, I. L. B. 30 Calc.

Hera Lai Bose v. Divija Charan Bose,

\ • 209, referred to. Nabadip Chandra

■EPiN Chandra Pal (1908)

12 C. W. N. 621
d. (■/) — Execution of

1^ —

^crt-Lir

'i>tation— Application to take some step

4. STEP IN AID OF EXECUTION— con<d.

( (/) Miscellaneous Acts of Decree-holder —
j contd.

I in aid of execution — Payment of process fees. Held,
' that the mere payment of process fees on an appli-
j cation for execution unaccompanied by any ap-
I plication asking the Court to take some specific
j action will not have the effect of giving a fresh
I starting-point for limitation within the meaning

of Art. 179 {4), of the second Schedule to the Limit-
; ation Act. Thakur Ram v. Katwaru Ram, L L. R.

22 All. 35S, followed. Vijiyaraghavalu Naidu
! v. Srinivasalu Naidu, I. L. R. 2 s Mad. 399, dis-
j tinguished. Sheo Prasad v. Indar Bahadur
! Singh (1908) . . I. L. R. 30 All. 179

152.

Civil Procedure

j Code (Act XIV of 1S.S2), s. 232 — Application by
; transferee decree-holder lo be recognised as such is a

step in aid of execution in accordance with law.

An application purporting to be under s. 232 of the
1 Civil Procedure Code, by the transferee of a decree,
i praying to bo recognised as assignee jjlaintiS in the

suit, and stating that, when so recognised, he would
I file an execution petition, i.e., when the Court
\ passed an order as prayed for, and the defendant

does not appeal against such order, is a step in aid
I of execution, and an application in accordance

with law within the meaning of Art. 179, clause (4)

of Schedule II of the Limitation Act. Annamalai
I MUDALIAR V. Ramier (1907)
; I. L. B. 31 Mad. 234

153.

-Precept to Col-

lector under Beng. Reg. XLVIII of 1793, s. 24, cl.
(2). A precept to the Collector under cl. 2, s. 24,
Regulation XLVIII of 1793 for mutation of names
in the terms of a decree was a process to enforce the
decree, and could not under s. 20, Act XIV of 1859
be issued after a lapse of three years from the pass-
ing of the decree. Nanerbi Kunwar v. Kasturi
KuNWAR . . . 4 B. L. R. A. C. 581

s.c. Naunhee Koonwar

154.

KUSTOOREE KOON-

13 W. R. 141

Confiscation of

decree — Correspondence relating to right of Govern-
ment. Where a decree had awarded a sum as
costs to one who turned a rebel : — Held, that corre-
spondence relating to the asserted right of Govern-
ment to get the sum to be realized by the execution
of decree did not amount to a proceeding to save
limitation. Ameenooddeen Khan v. Moozuffer
HossEiN Khan . . .3 Agra Mis. 5

155. — Application for

certificate of administration. The petitioners, as
widow and adopted son of a decree-holder, applied
by petition to the District Munsif for execution of
the decree on the 17th June 1864. The District
Munsif made an order stating that execution would

11x2

{ 7591 )

DIGEST OF CASES.

( 7592 )

LIMITATION ACT (XV OP 1811}— contd.

Schedule II — contd.

_ Art. 119— Contd.

4. STEP IN AID OF EXECUTION— coniti.

(/) Miscellaneous Acts op Decree-holder —

contd.
not be granted unless the petitioners obtained a
certificate from the District Court under Act XXVII
of 1860. In August 18G4 an appHcation was made
for a certificate to the Civil Court, and an order was
made refusing the application, and the order was
alBrmed on appeal. A second application was made
for execution in July 18G7 : — Held, that the right of
the petitioners to obtain execution was barred
by s. 20, Act XIV of 1859. Q^tTre : Whether a
suit on the decree could be maintained. Laksham-
MA V. Venkataragava Chariar . 4 Mad. 89

156.

Application in

execution -proceedings to have witnesses summoned.
An application by a decree-holder in the course of
an investigation into an objection to the attachment
of property to have his witnesses summoned is an
appHcation within the meaning of cl. 4, Art. 179,
Sch. II of the Limitation Act, 1877. Ali Muham-
mad Khan v. Gxm. Prasad . I. L. R. 5 All. 344

157.

Application for

certificate showing necessity of copy of revenue regis-
ter in order to obtain copy — Civil Procedure Code,
1877, s. 230. An appHcation by a judgment-credi-
tor to the Court which passed the decree for a certi-
ficate that a copy of a revenue register of the land
is necessary to enable him to obtain such copy from
the Collector's ofiice, and thereupon to execute
the decree by attaching the land, is a step in aid of
execution within the meaning of cl. 4, Art. 179 of
Sch. II of the Limitation Act, 1877. Per Innes,
J. — The right to execute decrees having been cur-
tailed by s."230 of the Code of Civil Procedure, 1877,
the provisions of the Limitation Act should be
construed as far as possible so as to prevent the
defeat of hand fide endeavours to secure the fruits
of a decree once obtained. Kunhi v. Seshagiri
I. L. R. 5 Mad. 141

158. ; ; — Notice not to pay

amount decreed — Deduction of time decree is under
attachment. A notice or order to a judgment-debtor

A, not to pay the amount decreed to his judgment-
creditor, -B, will not in any case servo "to keep the
decree aUve in favour of C, a judgment-creditor of

B, at whose instance the notice or order is issued,
much less in favour of other judgment-creditors of
B, with whom A had nothing to do. Azmuddin
V. Mathuradas Govardhandas Gulabdas

11 Bom. 206

159.

Se^l warrant —

Application for, in the Presidency Small Cause Court
— Whether such an application is an application in
accordance with law for execution or to take steps in
aid of execution. An appHcation, for a seal warrant,
to the Calcutta Small Cause Court is an application

LIMITATION ACT (XV OF 1877)— coa/o
Schedule II — contd.

Art. 119— contd.

4. STEP IN AID OF EXECUnON-cantd.

(/) Miscellaneous Acts of Decree-holde:-

contd.
made in accordance with law for execution od
take steps in aid of execution of a decree. Jac, -
NATH Khan v. Brojonath Pal (1901)

I. L. K. 29 Calc. 5.1

160.

Applicatwi.o

postpone sale — Opposition to application of judgml-
debtor. An appHcation by the decree-holde • o
postpone a sale, not with a view to enable hii o
bring the property to sale more ad vantages y
for him, but upon other grounds, is not an appJi-
tion to take some step in aid of execution. Ad
Hossein v Fazilun, 1. L. R. 20 Calc. .5,
followed. The decree-holder's opposition, tctn
appHcation of the judgment-debtor to seU the o-
perties in an order different from that to which fey
have already been directed to be sold, is not arp-
plication to take some step in aid of execun.
Dharanamma v. Subba, I. L. R. 7 Mad. '5,
distinguished. Troylokya Nath Bose v. J ti
Prokash Nandi (1903) I. L. R. 30 Calc. 61

161.

Rateable dri-

bution of sale-proceeds — Application to withdrav if
step in aid of execution — High Court Ride. An ler
permitting a decree-holder to withdraw m'jys
awarded to him upon rateable distribution auigst
several decree-holders of proceeds reaHsed in >• -
cution is in substance as well as in form a nii'
ial order. The appHcation for withdrawal
the rules of the High Court require to be ij.
the chief ministerial officer of the Court '
a step taken in aid of execution within the n-
of Art. 179 of Sch. II of the Limitation Act ali
it has finally to be submitted to the Judge in '
of the account department. Sadaxanda ."■
V. Kali Sankar Bajpai (1905)

10 C. W. 189

162.

Applicni

leave to bid — Step in aid of execution — Res ]'■
Whereupon an application for execution
made the judgment-debtor made an objectir
the decree was barred by Hmitation, and <
day fixed for the hearing of the objection be i'h
decree-holder and the judgment-debtor were *nj
and the objection was accordingly dismisseiand
the execution-proceedings were also struck cl the
decree-holder not having paid the process ff* :—
Held, that the judgment-debtor was entill to
raise the question of Hmitation when the dec was
again put in execution. Per RampiNI, .A"
application by the decree-holder for leave toi'!^*'
the sale is not a step taken in aid of execiitio ^"
in Art. 179 of Sch. II of the Limitation Ac
Mookerjee, J.— It cannot be rightly a:

-ith-

( 7593 )

DIGEST OF CASES.

( 7594 )

IMITATION ACT (XV OF 1877)— contd.
Schedule 11— co7itd.

Art. 119— contd.

STEP IN AID OF EXECUTION— conr/d.

(; Miscellaneous Acts of Decbee-holder —

C07ickl.

&i a inflexible rule of law that the granting of leave
t< decree-holder to bid at the sale must in every
a or may not in any case, amount to an aiding
OMC execution. When a decree-holder relies upon
a revious appUcation to the Court for leave to
b at the sale, as saving limitation, it is not suffi-
cit for him to show that such apphcation was
tt'e, but he must further show that the circum-
8t OS under which it was made were such that
tl- grant of leave did in fact aid, or would have
aid, the execution. That in the present case
tl ipplication to bid at the sale was not a step in
ai of execution. Hira Lal Bose v. Dwi.ta
C.RAN Bose (1905) . 10 C. W. N. 209

33. Limitation —

E 'viion of decree — Application not " in accordance
tv\ law " — Civil Procedure Code, s. 336—Insol-
Vty. Where the judgment-debtor has applied
fta declaration of insolvency and proceedings
ir,nsolvency are pending on his application, no
a) ication for execution can be made against the
ji;ment-deb tor's surety. If, therefore, such appli-
Cf'in is in fact made it will not be an apphcation
" accordance with law" within the meaning
of,rt. 179 {4) of the second Schedule to the Limit-
atiii Act, 1877. Chatter v. Nawal Singh, I. L. R.
I'All. 64, and Munawar Hvsain v. Jani Bijai
S\kar, All Weekly Notes {1905) 132, followed.
B', also, that the resistance of the decree-holder
tcae judgment-debtor's apphcation for insolvency
wj not amount to the taking of a step in aid of
eijution within the meaning of Art. 179. Lang-
■^' '>.XDE V. Baijkath Saran Pandr (1906)

I. L. E. 28 All. 387

5. NOTICE OF EXECUTION.

cl. 5 — Issue of notice under s.

lilMITATIOTT ACT (XV OF 1877)— confd.

Schedule II — cordd.
Art. 179— contd.

2^\ Civil Procedure Code, 1S59. The word

'joceeding " in s. 20 of Act XIV of 1859, in-

ed any hand fide apphcation, or the last act

! by the party, by the Court, or by the officer of

^oiu:t, in furtherance of such apphcation ; hence

eluded the issue by the Court of a notice under

fi of the Civil Procedure Code, and the service of

>t|' the officer of the Court. Ram Sahai Singh

*-|ttEo Sahai Singh, Gukudas Akhuli v. Gobin

^\^ . . B. L. R. Sup Vol. 492

Ind. Jur. N. S. 421 : 6 W. R. Mis. 98

lU'R Singh v. Motee Singh . 9 W. R. 443

'£EB LocHUN Saha Chowdhby V. Masseyk

i 18 W. R. 193

Sham Dey Koer

12 W. R. 2

5. NOTICE OF EXECUTION— fon<(Z.

SuBHAN Ali v. Sufdae Ali . 24 W. R. 227

(Contra) Tabbur Singh v. Motee Singh

8 W. R. 306

Sham Chand Bysack v. Lucas 5 W. R. Mis. 5

GiRJANUND OOPADHYA V. ClIUNDER BlXODE OO-

PADHYA .... 5 W. R. Mis. 5
KiSTO Kant Bural v. Nistarinee Debia

8 W. R. 268
Mazedoonissa Beebee v. Fuezen Beebee

4 W. R. Mis. 6

2. Civil Procedure

Code, s. 260, Notice under — Bond fides. The service
of a notice under s. 216 of Act VIII of 1859, if made
])ond fide with a view to take further proceedings,
was sufficient to keep a decree aUve. Dhiraj
Mahtab Chand Bahadur v. Lakhi Bibi

6 B. L. R. Ap. 146

Bhugobutty v. Motee Chand Puteedundo

6 W. R. Mis. 97

Obhoy Churn Dutt v. Modhoo Soodun Cnotv-
DHRY 19 W. R. 330

Chilicany Baskarayeningabu v. Pileary
Setty Rajavulu Naidu . . 5 Mad. 100

Makoondonath Bhadoory v. Shib Chunder
Bhadooby . . . . 19 "W. R. 102

3. Issue of notice

under s. 216, Civil Procedure Code, 1859. A notice
issued within time under Act VIII of 1859, s. 216,
and actually served upon the judgment -debtor,
constituted a .starting-point for the commencement
of a new psriod of limitation under Act IX of 1871,
Sch. II, Art. 167, any question as to its bond fides
notwithstanding. KooNJ Beharee Lall v. Gir-
dharee K-iLL . . . 22 W. R. 484

Sheo Sahoy Singh v. Birj Behary Sin'oh

23 W. R. 195

4. Issue of notice

'AHOMED BaKEK KhAN

under s. 216, Civil Procedure Code, 1859. A decree-
holder applying for the execution of his decree
was entitled, under the provisions of Act IX of 1871,
to have such execution, upon his showing that his
application was made within three years from the
date of a previous apphcation to the Court to
enforce the same decree, or from the date of issuing
notice under s. 216 of the Code of Civil Procedure
in the same matter. Esiian Chunder Bose v.
Prannath Nag

14 B. L. R F. B. 143 : 22 W. R. 512

ROHINI NUNDUX MiTTER V. BhOGOB AN CHUNDER

Roy 14 B. L. R. 144 note : 22 W. R. 154

Shurut Chunder Sen r. Abdol Khve Maho-
med Mohutessub Billah . 23 W. R. 327

5. — Issue of notice of

execution — Execution partly had under Act XIV

( 7595 }

DIGEST OF CASES.

( 7596 )

lilMITATION ACT (XV OF 1877)— con^d.
Schedule II — contd.

Art. 119— contd.

5. NOTICE OF EXECUTION— cow^d.
of 1859. In an execution case, in which the notice
was served, before, but the apphcation for execution
was made after, the passing of the present law of
limitation : — Held, that the period within which pro-
ceeding should be taken must be reckoned from the
date of the notice, and, not from the date of applica-
tion. Bemtjl Doss v. Ikbal NAEAiN**iti^

25 W. E. 249

EUGHOONATH DaSS V. ShIEOMONEE PaT MOHA-
DEBEE 24 W. B. 20

Issue of notice of

execution. When proceedings have been taken sub-
sequent to an application to execute a decree and to
the issue of notice, Umitation does not run from the
date of such subsequent proceedings, but from the
date of the first application to execute the decree, or
from the date of the notice, as the case may be.
NiLMONEY Singh Deo v. Nilcomtjl Tuppadab

22 W. R. 546

7. Notice to judg-
ment-debtor of execution of decree — Civil Procedure
Code, 1859, ss. 212, 216. On the 3rd March 1875,
an application was made by a decree-holder to the
Court executing the decree, which did not, as re-
quired by s. 212 of Act Vlll of 1859, state the mode
in which the assistance of the Court was required,
whether by the arrest and imprisonment of the
judgment-debtor or attachment of his property,
but prayed that the Court would, under s. 216 of
that Act, issue a notice to the judgment-debtor to
show cause why the decree should not be executed
against him. Under this apphcation, notice was
issued to the judgment-debtor on the 28th March
1875. On the 27th April 1875, the execution case
was struck off the file on the ground that the decree-
holder did not desire further proceedings to be
taken : — Held, per Peaeson and Oldeield, JJ.,
that for the purposes of Ai't. 167, Sch. II of Act IX
of 1871, the apphcation was one to enforce or keep
in force the decree ; and, further, that hmitation
should be computed from the date the notice to the
judgment-debtor was issued. Franks v. Nuneh
Mai, 7 N. W. 79, impugned. Per Spankie, J.
(contra). Behari Lal v. Salik Eam

I. L. R, 1 AIL 676

Service of notice

of execution. Application for execution of a decree
was made on the 10th November 1869, and on the
27th November 1869 notice issued under s. 216 of
the Civil Procedure Code, 1859. Again, on the
4th February 1873, apphcation was made for execu-
tion, and notice was issued on the 19th February
1873 under s. 216. A subsequent application for
execution was made on the 31st August 1874, and
the order for notice to issue under s. 216 was made
on the same day. The question raised in appeal
against the order to issue execution was whether

LIMIT ATIOIT ACT (XV OF 1877)-<o»<<

Schedule II — contd.
Art. 179— contd.

5. NOTICE OF EXECUTION— coTiYrf.

the plaintiff's right to execution was barred, ii
had been so when the application, dated 31st Aug t
1874, for execution was made : — Held, on appeal. 7
the High Court (Kernan and Kindekslev, J 1,
that, as the application for execution on the 1
February 1873, being more than three years a.i
the date of issuing the last prior notice undc.
216 — viz., 27th November 1869 — -was late under .;.
167, paragraph 5, Act IX of 1871, execution 3
barred by limitation at and before the date of t.t
application, and that this bar was not remove* y
the circumstance that the judgment-debtor i
allowed the service of the notice on him in Febay
1873, to pass unchallenged. Chilicany v. Ri-
vulu Naidu,5 Mad. 100, distinguished. Peoei-
CAEA Row t;. PoTAKNAH . I. L, R. 2 Mac 1

9. Service of M

of execution — Civil Procedure Code, 1859, s.
On the presentation of the last of a series of ajii
cations made for the execution of a decree, the Crt
is competent to consider the question whet r,
on the date of making a prior applica'tt
for execution, the decree sought to be enforced is
barred by hmitation, and that notwithstandg
the fact that notice of such prior appiicain
had been served on the judgment-debtor uade's.
216 of Act VIII of 1859. Unnoda Peks,
Roy v. Koorpan Ally

I. L. R. 3 Cale. 518 : 1 C. L. R,

10.

Civil Pro-:

Code, 1882, s. 248— Notice of valid or invalid ■
cation. The issuing of a notice under s. 248 u —
Code of Civil Procedure gives a fresh starting mt
for limitation under Art. 179, cl. 5, of Sch. !or
the Limitation Act, 1877, whether such noti^ifl
issued on a valid or an invahd apphcation for te-
cution. Dhokkal Singh v. Phakkar Singh

I. L. R. 15 Am

11.

-WTiere an a*"!'-

cation for notice to issue under s. 248 of the
Procedure Code may be found defective, b'
defects were held to be not material : — Held-
even if such apphcation was defective as an ap
tion for execution of the decree, it was st;
apphcation to take some step in aid of execi
namely, to issue a notice under s. 248, whicl'W
necessary, the decree having been passed morefan
a year before, and such notice having been iS|eB»
it kept the decree alive. Behari Lull v. Salih mr
1. L. R. 1 All. 675, and Dhonkal v. Phakkar, \ i.
R. 15 All. 84, refened to. Gopal Chuxder M^a
V. GosAiN Das Kalay I. L. R 25 Calc.94
2 C. W. N-'^^

12.

" Date of W'»»V

notice,'" meaning of the words — Execution of d[^^
Art. 179, cl. 5, of the Limitation Act (XV of|'V>

{ 7597 )

DIGEST Of CASES,

{ 7598 )

MITATION ACT (XV OF 1877;— confei.

Schedule II— cantd.
Art. n9—cmtd.

5. NOTICE OF EXECUTION— concZc?.
plies only where the notice under s. 248 of the
de of Civil Procedure (Act XIV of 1882) has been
tually issued. If no notice is issued time cannot
counted from the date of the order of the Court
3Ugh it may be that where a notice has been is-
)d, the date of its issue would be the date on which
3 Court ordered its issue. Haei Ganesh v. Ya-
: NABAi . . . I. L. R. 23 Bom. 35

L3. -Issue of notice.

' 3 expression ' ' the date of issuing a notice under
Code of Civil Procedure, s. 248," in Ait.
) of Sch. II to the Limitation Act, means the date
icn the notice is actually issued, and not the date
on the Court passes the order for issuing the not-
Kadabessur Sen Babor v. Mohim Chandra
vKKAVARTi (1902) . . 6 C. W. N. 656

L4.

Art. 179, cl. (5)

Civil Procedure Code {Act XIV of 1882), s. 248—
■.cree — Execution — Notice to show cause why decree
ould not be executed — Bate of the order — Step
> aid of execution. Where a notice to show cause
ly a decree should not be executed is issued
ider s. 248 of the Civil Procedure Code (Act XIV
; 1882), the time provided for by Art. 179 (5) of
)h. II to^ the Limitation Act (XV of 1877) runs
;)m the date of the order directing the same :
itual service of the notice is not necessary.
-jUiODAR Shaligram V. SONAJI (1903)
I I. L. B. 27 Bom. 622

.15.

Date of " issue

■ noltce" means date of actual issue of notice and
\i date of order directing issue. The date of ' ' issue
I notice ' ' from which time is to run under cl.
i)f Art. 179 of Sch. II of the Limitation Act is not
!? date on which the issue of the notice is ordered

■ the Court but the date of the actual issue of the
,tice. Govi-nd v. Dadu, I. L. R. 28 Bom. 416,
jsented from. Cheruvath Thalangal Bapu v.
'ebath Thalangal Kanaran (1906)

I. L. E. 30 Mad. 30

'ORDER FOR PAYMENT ON SPECIFIED
DATE.

cl. 6 — Civil Procedure Code, s.

I'l)— Execution of decree — Annual payments
' rrtam date." A decree which directs pay-
to be made annually to the decree-holder is
I 11 decree which directs payment of money to be
JKie at a certain date within the meaning of s. 230
Uhe Code of Civil Procedure or cl. 6 of Art. 179
Ii. II of the Limitation Act, 1877. V^'heie a
■ directed annual payments to be made, and
' crec-holdcr applied for and obtained payment
jtho money due fur 1877 and 1878 in March 1879
, j execution, and then applied in Julv 1882 for the
'iBs due for 1880 and 1881 ■.—Held, that this appli-

lilMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 179— contd.

6. ORDER FOR PAYMExXT ON SPECIFIED

DATE— contd.
cation was barred by limitation. YusuF Khan v.
Sirdar Khan . . . I. L. B. 7 Mad. 83

"• Decree for perio-

dical payments. If it can be gathered from a de-
cree that payments are directed to be made on
dates or at jjeriods which are suflHcientlv indicated
by the terms of the decree, the requirement of
Limitation Act, Sch. II, Art. 779, cl. 6, arc satisfied.
Kaveriv. Venkamma . I. L. B. 14 Mad. 396

3. Execution of de-

cree— Maintenance — Decree for payment of an an-
nuity without specifying date of payment — Defmilt
in paying such annuity— Enforcement of payment by
execution of decree — Computation of time. A
Hindu widow obtained a decree, dated 7th Septem-
ber, 1865, directing that a sum of R36 should be
paid to her every year on account of her mainten-
ance. The judgment-debtors paid the annuity for
some years. In 1881 the widow ajiplied for exe-
cution of Ihe decree, and recovered three years'
arrears. In 1885, payments having again fhllen
into arrear, she again applied for execution but her
application was rejected as barred by limitation,
having been made more than three years after the
last preceding application ■, — Held, that the appli-
cation Mas not time-barred. The decree created
a periodically recurring right. Though no precise
date was specified in the decree for payment of
the annuity, the judgment-debtors were liable to
make the payment on the day year from its date,
and thenceforward on the corresponding date year
after jear. The decree was, as to each year'.s
annuity, to be regarded as speaking on the day
upon which for that year it became operative, and
separately for each j'car. The right to execute
occurring on a particular day, limitation should be
computed from that day should the judgment-
debtor fail to obey the order of the Court. Sak-
haram DiJcshit v. Ganesh Sntha, I. L. P. 3 Bom.
193, followed. Subhanatha Dikshatar v. Subha
Lakshmi Ammal, I. L P. 7 Mad. 80, and Yusaf
Khan v. Sirdar Khan, I. L. P. 7 Mad. S3, distin-
guished. Lakshjiibai Bapuji Oka v. Madhav-
KAY Bapdji Oka . . I. L. R. 12 Bom. 65

4. Applicatiem for

execution of maintenance decree. On an applica-
tion made in 1891 for the execution of a decree pass-
ed in 1870 it appeared that the decree directed the
payment of maintenance to the plaintiff annually
on a specified date, and the present application re-
lated to the period of three years from 1888 to 1891.
There had been an application for execution in 1873.
The next application was made in 1S79, and it was
dismissed as being barred by limitation : — Held,
that the present application was not barred by
limitation. Kuppc 4mmal v. Samixatba Ayyar
I. L. R. 18 Mad. 482

( 7599 ^

DIGEST OF CASES.

( 7600 )

LIMITATION ACT (XV OF 1877)— co«<rf.

Schedule II— conW.
Art. 179— ccmtd.

6. ORDER FOR PAYMENT ON SPECIFIED

DATE— contd.
5, — Decree for re-
demption— Decree not specifying result of non-pay-
ment of mortgage-debt within the time prescribed
thereby for payment. Where a decree for redemp-
tion of a mortgage stated that the amount due un-
der the mortgage should be paid within four months,
but omitted to state what the result would be if the
mortgage-debt was not so paid : — Held, that it was
competent to the decree -holder to execute such a
decree at any time within the period of limitation
prescribed by Art. 179, Sch. II of Act XV of 1877.
Bandhu Bhagat v. Muhammad Taqi

I. Ii. R. 14 All. 350

6. Decree for redemp-
tion— No time fixed in the decree for payment. On
the 27th June 1885 a consent-decree was passed
in a redemption suit to the following effect : " Plaint-
iff should pay the sum of £1733 to the defendants
within a month of this date ; in case they do not pay
the money, then in the year in the monthe of C'haitra
in which they pay the money, the defendants should
give back to them possession of the land ; till that
time the defendants should pay the Government
assessment and enjoy the produce in heu of interest.
On the 27th June 1897 plaintiflEs applied for execu-
tion of the decree, praying for possession alone on
the ground that the redemption money had been
paid off by their payments of assessment, etc., on
behalf of the defendants -.-Held, that the application
for execution was time-barred under Art. 179 of the
Limitation Act (XV of 1877). The words of the
decree were vague and indefinite, and were to be
considered as really mentioning no time for pay-
ment. The decree was therefore to be taken as
operating from its date, and to be enforceable only
within three years from that time, unless kept alive
by application for execution made according to law
within the prescribed periods. Maruti v. Krishna
I. L. R. 23 Bom. 592

See Gan Savant Bal Savant v. Narayan Dhon
Savant . . . I. L. R. 23 Bom. 407

Maloji v. Sagaji . I. Ii. R. 13 Bom. 567

and Narayan Gobind v. Anandram Kojtram
I. L. R. 16 Bom. 480

7. — Civil Procediire

Code, 18S2, s. 210 — Time granted to debtor— Decree
not altered. On the 26th of June 1878 a judgment-
debtor applied, under s. 210 of the Code o^ Civil
Procedure, for two years' time to pay the amount
of the decree, which was dated 12th March 1878.
Notice having been given to the judgment-creditor,
an ex parte order was made allowina the judgment-
debtor two years' time to pay, but the decree itself
was not altered in accordance with this order. On
the 9th of July 1882 the decree-holder applied for
execution of the decree -.—Held, that the application

LIMITATION ACT (XV OF 1877)— conj.^.

Schedule II — contd.
Art. 119— contd.

6. ORDER FOR PAYMENT ON SPECIFIl

T>ATK— contd.
was not barred by limitation. Tata Chabltj
Konadala Ramachandra Reddi

I. L. R. 7 Mad. Ii

Civil Precede.

Code, Act XIV of 1S82, s. 210— Petition of jiu
ment-debtor amounting to fresh decree. On t
23rd February 1878 an apphcation was made*
execution of a decree, dated the 3rd December 18',
in which the decree-holder stated that the ju-^-
ment-debtor had agreed to pay the balance tl
due on the 13th August 1878. The applicatii
was then struck off on the 26th June 1878. On 1?
30th June 1881 the decree-holder again applied :■
execution, and on the 11th July 1881 the judgmel)'
debtor, with the consent of the decree-holder, a
plied for time to pay the balance due till the i%
September 1881, and that application was a|»
struck off. On the 1st March 1883 the decr^
holder again apphed for execution : — Held, that 1J
application was not barred by limitation upon ip
ground that the application by the judginei-
debtor, made on the 11th July 1881, alleging tit
he had come to an arrangement with the deer-
holder for the payment of the amount due by '•
stalments, having resulted in its being registe:^
and the proceedings struck off, amounted to*
direction that the decretal amount be paid I?
instalments as stipulated in the petitions, and thi,
this being so, there was a decree passed on tit
date under the provisions of the second paragrsji
of .s. 210 of the Code of Civil Procedure, of whi
the decree-holder was entitled to have executi .
Jhoti Sahu v. Bhtjgun Gir

I. Ii. R. llCale. ]3

Application

execution of decree — Order on petition to pay hy
stalments — Civil Procedure Code, s. 210. An
plication, to execute a decree, dated 30tb Au2
1880, was made on 25th May 1881. While
application was pending, the judgment-debtor ] ■
sented a petition to be allowed to pay the debt bjli-
stalments, and the decree-holder consenting to * ".
the Court made the following orders : " Atc^
ing to the application of both parties, it is onl
that the case be struck off, and the decree bt
turned." The details of the instalments menticpi
in the petition were endorsed on the decree by|i6
of the amlahs of the Court, but it did not api'-i
when or by whose order this was done. In an
plication for execution in accordance with
arrangement made on 7th March 1885 : — ^ "•
that the order was not one recognizing or sijC"
tioning the arrangement within the meaninf|W
s. 210 of the Civil Procedure Code, inasmuclas
the Court, at the time it made the order, hacio
power to make any order for instalments, ly*
application for that purpose being then barrecy

( 7601 )

DIGEST OF CASES.

( 7602

IMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 179— contd.

ORDER FOR PAYMENT ON SPECIFIED

DATE— contd.
t. 175 of Act XV of 1877. The application for
ecution was therefore barred under Art. 179 as
t having been made within three years of 25th
,y 1881. Jhoti Sahu v. Bhugun Gir, I. L. R. 11
Ic. 143, dissented from. Abdul Rahman

DA0-7B V. DULLARAM MaRWARI

I. L. R. 14 Calc. 348

10. Order for -pay-
it of decree by instalments, The provision of
1.. 3, Act XIV of 1850, applied where there was a
j sent right to execute the decree, and not to
•( es of an instalment made pa3'able at a future
('e ; in the latter case application might be made
^Ihin three years from the date of each instalment
loming due, without being barred by limitation
{■vided in the said section. Ultaf Ai.i Khan
i'Um Lall . Agra F. B. 83 : Ed. 1874, 63

Decree awarding

iment by instalments. When a decree awards
}.|meut by instalments to be made at particular
scified dates the date when each instalment
I omes due is to be deemed the date of the decree
ii-espect of that instalment for the purpose of
c ulating the time within which execution may
b issued to enforce payment of it. Uttamram
^ stream v. Girdharlal Motiram

6 Bom. A. C. 45

AM SuDOY Ghose V. Rajbullubh Saha

15 W. E. 547

jiifcowRiE DossEK t'. Umbica Chubn Roy
CiWDHRY . . . .23 "W. R. 41

iiEO Jaltjn v. Gunesh . 2 Agra 237

liNAMCHAND VALAD SURAJMAL V. BhIVRAJ

VJu)Dashrat , . 6 Bom. A. C. 38

l'- ; Execution of de-

CTifor maintenance payable by instalments. Pro-
Cf,of execution cannot always be issued for three
y«,8' arrears under a decree directing annual
P« nent of money for a series of years. The peti-
ti'?r, who had obtained a decree for an annual
8Ui for maintenance during her life, alleged satis-
»|on of the decree up to a period less than three
Jt sfrom the date of the application for execution
oijie decree. The Judge was not satisfied of the
WJjed satisfaction, and dismissed the apphcation
loijxecution:— //eW, that the petitioner was en-
W to execution of a decree at any time from the
''*>t which the first instalment became due, but
in she was not entitled to have process of ex-
«c< on issued within three years from the date at
*tii the second instalment or subsequent instal-
™e|s became due. Lakshmi Ammal v. Sashadry

•AI|NOAB . . a. TVTaH 275

LIMITATION ACT (XV OF 1S77)— contd.
Schedule II — contd.

Art. 179— coned.

... 4 Mad.

'i! SiNTHAYEE V. ThANAKAPUDAYAN

4 Mad.

183

6. ORDER FOR PAYMENT ON SPECIFIED
DATE— contd.
13. Execution of de-
cree payable by instalments. The decree provided
that the amount should be paid in three instal-
ments, and in default of payment of one instal-
ment the decree-holder was empowered to execute
his decree for the whole amount. When the in-
stalment for December 1865 fell due, the judg-
ment-debtor paid a portion and obtained an ex-
tension of time up to December 1866. On appli-
cation on 21st September 1869 for execution of the
decree for the instalments of 1866 and 1867: —
Held, that the instalment for 1866 was not
barred by lapse of time. Krishna Chandra
Shaha v. Omed Ali . 6 B. li. R. Ap. 31

s.c. Kristo Chunder Shaha v. Oomed Ali

14 W. H. 414

14. Bojid payable by

instalments. Upon an application for execution be-
ing made, the judgment- debtor executed in Cpm-t
an instalment bond, by which he bound himself to
pay his debt by half-yearly instalments in the
months of Magh (January and February) and Bha-
dra (August and September) of each year, and it
was stipulated that, on failure to pay a single instal-
ment, the whole of the bond might be reahzed by
execution. A decision was given accordingly and
the instalment-bond was filed. The judgment-
debtor did not pay the instalment due in August
and September 1864 till a few days after the expiry
of that month. He did not pay the instalment of
January and February 1865 at all, but subsequent
payments were made and accepted. In December
1867 and January 1868 the decree-holder appUed
to execute the decree and realize the whole amount
of the bond. The lower Appellate Court, holding
that time ran from the first default in August and
September 1864, dismissed the application. Held,
by the High Court on appeal, that the apphcation
was not barred by s. 20, Act XIV of 1850, and that
the time ran from January and February 1865.
Upendba Mohan Tagore r. Takalia Bepari

2 B. li. R. A. C. 345

s.c. Woopendro Mohun Tagore v. Takalaia
Beparee . . . . 11 W. R. 570

15. — __ Decree payable by

instalments — Limitation Act, 1S71, Art. 75. A
decree payable by instalments, with a proviso that
in default of payment of any one instalment, the
whole amount of the decree shall become payable
at once, is barred, if application for execution be
not made within three years from the date on which
any one instalment fell due, and was not paid.
The payment of instalments subsequent to default
in payment of the first instalment at the date
specified does not give the judgment-creditor a fresh

( 7603 )

DIGEST OP CASES.

( 7604 )

lilMITATION ACT (XV OP 1877)— contd.
Schedule II — contd.

Art. 17Q~-contd.

6. ORDER FOR PAYMENT ON SPECIFIED

DKTF.—contd.
starting point. Dulsook Rattachanb v. Chugon
Naeextn . . . I. L. E. 2 Bom. 356
See GuMNA Dambershet v. Bhikit Hariba

I. L. R. 1 Bom. 125

16.

Decree for mowy

payable by instalments — Adjustmeni of decree —
Civil Procedure Code, 18.59, s. 206. A decree for the
payment of money by instalments directed that, if
the judgment-debtor failed to pay two instalments
in succession, the decree-holder should be entitled
to enforce payment of the whole amount due under
the decree. The decree-holder, alleging that a
portion of the ninth instalments was payable, and
that the whole of the tentli (the last) instalment was
due, applied to enforce payment of the moneys due
under the decree : — Hdd, per Pearson, J., that
whether former instalments had been paid or not
was immaterial, and the apphcation, being within
three years from the dates on which the ninth and
tenth instalments became due, was, with reference
to Art. 167, Sch. IT of Act IX of 1871, within time.
Spakkie, J., refused to interfere in second appeal
inasmuch as the lower y^ppeUate Court had found as
a fact that there had been no such default in the
payment of the former instalments as was contem-
plated by the decree. Kanchan Singh v. Sheo
Pkasab . . . I. Ii. R. 2 All. 291

17.

Decree payable by

instalme^ds — Default. Where a decree was' passed
by consent in 1872 for payment to plaintiff throui^h
the Court of R300 by fifteen annual instalments
on February 20 in each year, and in default of pay-
ment of any instalment the whole amount became
recoverable, and four years' instalments were paid
out of Court and default made on February 20, 1877,
and plaintiff applied to recover the instalment of
1877 by execution on November 17, 1879, and
March 1, 1880 -.—Held, that the application of
November 1879 was not barred under cl. 6, Art. 179,
Sch. II of the Limitation Act of 1877, inasmuch as,
when the lamitation Act, 1877, came into force (Oct-
ober 1, 1877), the apphcation was not barred un-
der cl. 6, Art. 167, Sch. II of the Limitation Act,
1871. Held, also, that the provision as to the whole
amount becoming recoverable at once if default
was made, did not aflect the admissibility of the
application for execution, because that provision
had not been enforced, and the obligation to pay
by instalments was still subsisting. Karaka-

VALASA ApPAYYA V. KAR^iNAM PaPAYYA

I. L. R. 3 Mad. 256

•'•"• — Decree for money

dayable by instalments — Ea:ecution of decree. Held,
in the case of a decree for money payable by instal-
ments, with a proviso that in the 'event of default
I he decree should be executed for the whole amount.

LIMITATION ACT (XV OP 1877)— conW.

Schedule II — contd.
Art. 179— contd.

6. ORDER FOR PAYMENT ON SPECIF] I

DATE— contd.
that the decree-holder was strictly bound by t
terms of the decree, and not having applied f
execution within three years from the date of t
first default, the decree' was barred. Shib Dat
Kalka Prasad . . I. L. R. 2 All. 4

19.

and Art. 75— Decree dire

inij payment to be made at a certain date. L obtain
a decree against U, dated the 24th September 18'
for possession of a certain estate, subject to this { ■
vision, viz., that if [■ paid in ca.sh into the treasr
of the Court year by year, for Vs maintenance,!
long as she might live, an aUowanco of R15 ]•
mensem, in three instalments of R60 each, (Ij
decree for possession should not be executl
but if default were made in payment of three sii
instalments, L should be entitled to delivery of f -
session of such estate. The first default was m.e
on the 18th January 1874, but L waived the be-
fit of the proviso. A fresh default was made, d
on the 23rd January 1880 L apphed for possessii
of such estate : — Held, that the provisions of el!,
Art. 75, Sch. II of Act XV of 1877, were not ap^
cable to this case, but Art. 179 (6') of that Schecje
contained the law which must governed it; al,
the date ujjon which such decree became capde
of execution for possession being the 18th Janiiy
1874, the date of the first complete default, thep-
pHcation of the 23rd January 1880 was barrecy
limitation. Ugrah Nath v. Laganmali

I. L. R. 4 All. 3

20.

Decree pay'le

by instalments — Execution of tohole decree — It/'
ments out of Court — Act X of 1S77 [Civil Procere
Code), s. 258. A decree payable by instalmits
provided that, in default in payment of two inM*
ments, the whole decree should be executed, i '
decree-holder applied for execution of the v
decree on the ground that default had been ,
in payment of the third and fourth install.
The judgment-debtor objected that the a]ii
tion was barred by Umitation, as he had
default in payment of the first and second ii ■■
ments, and three years had elapsed from thej^te
of such default. The decree-holder oifert! to
prove that those instalments had been paid|'iit
of Court : — Held, that he was entitled to give'icli
proof, in order to defeat the judgment-delfr'*
plea of Hmitation, notwithstanding such l^y*
ments had not been certified. Fakir Chand\o^
V. Madan Mohan Chose, 4 B. L. B. F. B-JiO,
followed. Sham Lal v. Kanahia Lal , .

I, L. R. 4 A1J316

21.

Decree f

able

jai, Decree f""^

wy instalments — Default — Waiver — Estoppel — . W'
cation for execution as provided for in case of oS""'
— Application to recover instalments. A ''''''^

( 7605 )

DIGEST OF CASES.

( 7606 )

jIMITATION act (XV OF 1811)— coni

Schedule II— co7itd.
Art. n9—contd.

ORDER FOR PAYMENT ON SPECIFIED
DATE— cowid.

DF the payment of money directed that an amount

!88 than the amount sued for should be paid by

istalments, and that, if default were made in pay-

lent of one instalment, the amount sued for should

e payable. Default havino; been made, the decree-

olde"-, on the 7th May 1877, applied for execution

I the decree for the larger amount. It appeared

,iat at this time although the instalments had

Ijnt been paid regularly, the decree-holder had

^■•eived in full all the instalments which had fall-

•1 due excepting the instalment falling due in the

i.-evious September, — that is, September 1876 —

"hich he had received only a part. The applica-

1 f the 7th May 1877 was struck otf the file.

decree-holder subsequently accepted the

tiiaining instalments, which were paid on due

ites. On the 2Sth August 1878 the decree-holder

iiplied for payment of an instalment which had

ien paid into Court. On the 8th September 1881

;e decree-holder apphed for execution of the decree

■ if the larger amount payable thereunder in case

default, with reference to the default in respect

;the instalment for September 1870. The Court

j'used to allow execution to issue for such amount,

it allowed it to issue for the balance of the in-

ilment for September 1870. Per Straight, J. —

^^ having by his application of the 7th IMay

-ought to execute the decree for the larger

■ t payable thereunder in case of default

jiiiyment of the instalments of the smaller

'jount, the decree-holder was not competent after-

'rds to seek to execute the decree in respect of

instalments ; that therefore his application of

^rh August 1878 was not a step in aid of exe-

' of the decree in the shape in which he had

1 \ iously sought execution, from the date of which

Ijitation could be computed ; and that conse-

' 'ntly his application of the 8th September 1881

• -irred by hmitation. Per Curiam, : That the

■holder was not entitled to recover the bal-

f the instalment for Sei)tember 1876, regard

Had to the limitation jiresciibed by Art. 170

^' h. II of the Limitation Act, 1877'. Radh.a

\D Singh v. Bhagwan Rai

I. L. R. 5 All. 289

,f- Decree payable

ynalnlments— Execution of whole decree— Con-
maim of decree — Payments out of Court— Civil
Icednre Code, s. 25S. A decree passed against
tdefendantinasuit, dated the 13th March 1877,
dieted "that the plaintirt should recover the de-
-money by instalments, agreeably to the terms
ie deed of compromise, and he, in case of rjefault,
ill recover in a lump sum." The compromise
tioned in the decree provided that the amount
ispute should be paid in ten instalments, from
't to 1294 Fasli, the first to be paid on the 27th

LIMITATION ACT (XV OF 18n)^contd.

Schedule II — contd.
— Art. 119— contd.

6. ORDER FOR PAYMENT ON SPECIFIED

BATE— contd.
May 1877 (1284 Fasli), and the remaining nine
instalments on Jaith Puranmashi of each succeed-
ing FasH year. On the 1st September 1883 the
decree-holders apphed for execution of the decree,
alleging that the first four instalments had been
paid, but not any of the succeeding instalments,
and they claimed to recover, under the terms of the
decree, the fifth and all the remaining instalments
in a lump sum. ''J'he judgment-debtors contended
that the application was barred by limitation, as
they had not paid a single instalment, and more
than three years had elapsed from the date of the
first default ; and that, even if the first four in-
stalments had been paid, such payments could not
be recognized by the Court as they had not been
certified : — Hrdd, reversing the decision of the lower
Appellate Court, that if the four annual instalments
had not been paid under the decree, the execution
of the decree was barred by limitation. Held, also,
that recognition of such instalments was not barred
by the terms of s. 25S of the Civil Procedure Code.
-S'/jrtm Lai V. Kanahia Lai, L L. B. J All 316,
and Fakir Chand Bcse v. Madan Mohan Ohose, 4
B. L. R. F. B. 130, followed. Zahur Khan r.
Bakhtawar . . . I. L. K. 7 All. 327

23.

-Decree payable by

instalments — Waiver by decree-holder — Payment out
of Court — Civil Procedure Code, s. 2-5S. An appli-
cation for execution of a decree payable by in-
stalments was resisted by the judgment-debtor
as barred by limitation on the ground that nothing
had been paid under the decree, and that the ap-
plication as made more than three years after the
first instalment fell due. The decree-holder plead-
ed that he had waived the default in payment of
the first instalment by accepting such pa3-ment
shortly afterwards, and that the appfication was
in time, having been made within three years from
the date when the second instalment was due : —
Held, that the decree-holder could not raise this
plea, as the payment in question had not been
certified to the Court executing the decree, and
therefore could not, under s. 258 of the Civil Proce-
dure Code, be recognised. Shani Lai v. Kanahia
Lai, I. L. R. 4 All. 316, and Zahur Husain v.
Bakhtawar, I. L. R 7 All. 327, not followed.
MiTTHU Lal v. Kuairati Lal

I. L. R. 12 All. 569

24. • Dtbt on decree

payable by instalments — Failure to pay — Waiver of
default. The terms of compromise in a suit for
money provided that the debt should be paid by
monthly instalments, and that, on the failure to
pay any three successive instalments, the entire
amount should be recoverable by application to
execute the full decree. The decree was dated the
12th June 1S75, the first instalment was due in

7607 )

DIGEST OF CASES.

LIMITATION ACT (XV OF 1811)— contd.

Schedule II — contd.
Art. 119— contd.

6. ORDER FOR PAYMENT ON SPECIFIED

BATE— contd.
July 1875, and the last in October 1877. Default
was made in payment of the first three instalments,
but the decree-holder did not apply for execution
and accepted subsequent payments. On the 13th
December 1879 he appHed for execution for the
amount then remaining due : — Held, that the period
of limitation prescribed by Art. 179, Sch. II of Act
XV of 1877, began to run on the third default tak-
ing place, and that no subsequent payment could
stop limitation once begun. Asmtttullah Dalal
V. Kally Churn Mitter . I. L. R. 7 Calc. 56

25.

Decree 'payable

by instalmenls. On an application, dated 10th
Aughran 1288, for execution of a decree which
provided, on the basis of a kistbundi, that the
amount decreed should be paid in four instalments
annually, extending over the years 1284, 1285,
1286, 1287, and that, if there should be default in
payment of any instalment and that instalment
should remain unpaid for six months, the whole
of the decree should at once become due, it was
objected that the application was barred on the
ground that, the instalments for 1284 not hav^ing
been paid, the whole amount of decree had become
payable within six months for the first default.
The application was to recover the instalments due
for 1285, 1286, and 1287 -.—Held, that the apphca-
tion was not barred, except as to the instalment of
1285, which fell due in Jaith, as it was optional with
the decree-holder to reahze the whole decree at
once upon default being made, or to waive his right
to do so and seek to realize instalments as they
became due. Ashmaitullah Dalal v. Kally Churn
Mitter, I. L. B. 7 Calc. G6, followed. Chunder
KoMAT, Das.s v. Bissasurree Dassia

13 C. li. E. 243

LIMITATION ACT (XV OF 1877)— cot
Schdule 11— contd.

Decree payable

by instalments — Optioit to execute — Waiver — Con-
struction of decree. Where a decree is made pay-
able by instalments, and contains a provision that,
on failure of any one instalment, the whole is to
become due, the question whether the decree-holder
may waive the benefit of the provision or must exe-
cute his decreee within three years from the due
date of the first instalment of which default is made
in payment is a question purely of construction to
be decided on the terms of the whole decree in
each case. On an application for execution of a
decree made payable by instalments : — Held, that
the apphcation was barred by limitation, on the
ground that the judgment-creditor should have
applied for execution within three years from the
date of the first default in payment. Judhistir
Patro v. Nobin Chandra Khela

I. L. E. 13 Calc. 73
27. Default in pay-
ment of instalments — Right of decree-holder to waive

Art. lld—contd.

6. ORDER FOR PAYMENT ON SPECIFI3
BATE— contd. '

his right to execute entire decree — Waiver. A dece
dated the 18th July 1883, which was made agast
D and K in terms of a solehnamah filed by th i,
directed payment by instalments in the moh
of Choitro (Vilaity year) each year, with a pro\o
that, if default was made in the payment of .y
instalment, then, without waiting for deflt
in other instalments, the decree-holder should bjit
liberty to take out execution and realize the w)le
amount of the kistibandi with interest. D adt-
tedly paid the instalments due from him Ujio
Choitro 1292 (March- AprH 1885) and a portio:of
that due in Choitro 1293 (March-April 1886), anuE
admittedly paid due from him up to Chcro
1293 March-April 1886), and although in le
application for execution payments made sue-
quent to these dates were alleged by the dece-
holders to have been made, both lower Courts foid
such payments not to have been proved. Onie
1st September 1890, more than three years aftene
default made by D in Choitro 1293 (March-i^ril
1886) and that made by K in Choitro 1294 (Mah-
April 1887), the decree-holder applied for execu>n
of the whole decree with interest after deductioof
all instalments alleged by them to have been pd.
On second appeal before the High Court it aa
contended that, although the application to exette
the entire decree was barred, yet as the prcso
was for the benefit of the decree-holders, ley
were competent to waive it and claim exeeion
in respect of the instalments that fell due wiin
three years before the date of their applic£ion
for execution : — Held, that this was not the ise
made out in the Courts below ; and further >at
the proviso could not be said to be waivec as
there had been no acceptance of payment si-p-
quent to the first default, nor a mere abstii
on the part of the decreee-holder from i^i '
the benefit of the proviso, but, on the cont
there had been an affirmative act done b\
showing that he did not waive the bent*
the proviso, but claimed to execute the <
decree. 31 on Mohun Roy v. D trga Ch'tm Gre^>
I. L. R. 15 Calc. 502, referred to. BiR N.4JaH
Panda v. Darpa Narain ProdhaK. i ^

I. L. R. 20 Gal 74

28.

Decree p

by instalments — Default in payment of first in<l
— Right of waiver of default — Payment not
fled to Court— Civil Procdure Code< (Act I'J "
1S59), s. 206 ; (A ct XI V of 1SS2), s. 2-'iS. A ( roe
dated 22nd Cheyt 1295 (18th April 1882) pn.'^il
" that the defendants do pay the decretal ni<
per instalments given below, otherwise the ]'
will have the power to cancel the instalracii:
realize the entire amount." The first instai-;ut
was made payable on 30th Cheyt 1295 (2fith P"
1888), and the other six instalments on the 3ib ol

( 7609 )

DIGEST OF CASES.

( 7610 )

IMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 179— con.'rf.

ORDER FOR PAYMENT ON SPECIFIED
J)ATE—co7,td.

'le months of Magh and B^'sack in the three
Hewing years. In an application made on 9th
?bruary IS92 for execution of the decree, the
■ci-ee-hokler stated that only the first instalment
id been paid, and asked for execution for the
nouiit remaining due under the decree, and the
dgment-debtors denied having paid any of the
stalments : — Held, that the clause in the decree to
e etTect that on non-payment of an instalment by
specified date it should be in the power of the
.-cree-holder to realize the full amount, was not
funded to give him the option of waiving the
fault if he pleased, but that it implied nothing
pre than the usual condition that on non-payment
an instalment the whole decretal amount would
,come exigible ; if therefore the first instalment
id not been paid, the application for execution
t having been made within three years from the
,te when the whole amount became due, was
jrred by Art. 179 o' Soh. II of the Limitation Act.
tandra Kamal Das v. Bissessurree Dasaia, 13
I L. R. :'. 3, dissented from ; and the case was
'manded for final decision of the question whether
, not payment of the first instalment had been
jide. Chenihash Shaha v. Sridam Mandal, I. L. R.
j Calc. 97 ; Asviutullah Dalai v. Kally Churn \
I itter, 1. L. R. < Calc. "6' ; Nilmahdub Chuckerhutty
\Ramsodx)y Ghose, I. L. R. 9 Calc. So/"; Judiftir
ji/ro V. Nobin Chandra Khela, I. L. R. 13 Calc. 73 ;
,im Culpo Bhattacharji v. Ram Chunder Shome,
^ L. R. If Calc. 35i ; Mon Mohun Roy v. Durya
(turn Gooee, I. L. R. 1-5 Calc. -',02 ; and Bir Narain
\inda V. Darpanrain Prodhaii, I. L. R. 20 Calc.
j, referred to. Held, further, that, although
jider the provisions of s. 258 of the Civil Procedure
j)de the payment in question, if made, could
)t be recognized as a payment or adjustment of
I e decree, yet it was competent to the decree-holder
I prove such payment for the purpose of showing
(at the execution of the decree was not barred.

Iiere is no material difference in this respect
'tween s. 258 of the Civil Procedure Code (Act
IV of 1882) and s. 20G of the old Code (Act VIII
I 185^1, on ^\hich the case of Fakir Chand Base
I Madan Mohan Ghosc, 4 B. L. R. F. B. 130, was
'cided. HuRRi Pershad Chowdhry v. Nasib
isGH . . . . I. L. B. 21 Calc. 542

29. Decree payable

inMalments ^vith proviso as to execution of entire
cree on defaidt in payment of instalments — Con-
•uction of decree. Where a decree for money is
ade payable by instalments with a proviso to the
ect that on default being made in payment of the
rtalments, the decree-holder is entitled to execute
e decree for the whole amount due, such a decree is
be construed as much as possible in favour of the
xree-holder, and unless the decree clearly leaves

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.

Art. 119— contd.

6. ORDER FOR PAYMENT ON SPECIFIED-
DATE— ro/iM.

the decree-holder no option on the happening of a
default but to execute the decree once and for all for
the whole amount duo under it, the decree-holder
may execute it on the happening of the first, second,
or any subsequent default, and limitation will run
against him in respect of each instalment separately
from the time when such instalment may become
due. Shankar Prasad v. Jalpa Prasad

I. L. R. 16 All. 371

30. Decree payable

by instalments — Waiver of default in payment — Civil
Procedure Code, l'SS2, s. 2-'}S. Where a decree
was payable by instalments, and in default it was
provided that the whole amount should become
due : — Held, that proof of a part-payment towards
an instalment due accepted by the decree-holder
(even though it was a payment not certified to the
Court under s. 25S of the Civil Procedure Code)
would be material as evidence of waiver, and that,
if there were such waiver, limitation would not run
till the next default. Rajeswara Rati v. Hari
Babandhu . . . I. L. R. 19 Mad. 162

31. Transfer oj Pro-
perty Act [IV of 1'<S2), s. 90— Application tor
decree against non-hypothecated property — Starting
point of limitation. Where in a usufructuary
mortgage it was covenated that if the mortgagee
was not given possession he should have a right to
obtain the sale of the mortgage property, the mort-
gage-debt meanwhile being payable on a certain
specified date : field, that in respect of an
application under s. 90 of Act IV of 1882, the
mortgaged property having been sold under the
abovementioned covenant and having proved
insufficient to satisfy the debt, limitation began to
run from the breach of the covenant to pay on due
date, and not from the breach of the covenant to put
the mortgagee in possession. Shed Charax
Singh v. Lalji Mal . I. L. B. 18 All. 371

32. Iiist(diiicnls —

In-otaiment decree — Default in payment of instalments
— Subsequent payment and acceptance of overdue
ijistalments — Waiver. A decree obtained on the
27th June, 1887, by a mortgagee, against his mort-
gagor, directed that the sum of Rl.OoO should be
paid b}' yearly instalments of R55, the instalments
to be paid in the month of April in each year. It
further provided that, in case of default being made
in the payment of au\' two consecutive instalments,
the plaintiff should recover possession of the mort-
gaged property. The defendant did not pay in
April, 1891, or .April, 1892, the instalments due in
those months, as ordered by the decree, but he paid
them, and they were accepted by the plaintiff in the
months of May, 1891, and May, 1892, respectively.
He also paid subsequent installments, and up to 1895-
no single instalment remained unpaid at the date

( 7611 )

DIGEST OF CASES.

( 7612 )

lilMITATION ACT {XV OF 1877)— canii.

Schedule II — contd.

Art. 119— contd-

6. ORDER FOR PAYxMENT ON SPECIFIED
BATE— concld.

at which that immediately succeeding it became
due. But he again failed to pay two consecutive
instalments, viz., those due in 1896 and 1897,
and he paid nothing subsequently. In Jidy,
1899, the plaintiff applied for execution of the
decree, contending that his right to execution arose
in 1897 under the terms of tlae decree. The lower
Api)eal Court held that the plaintiff's right to
execution had arisen in 1892, and that his present
apphcation was therefore barred by Umitation. On
appeal to the High Court : Held (by the Full Bench,
reversing the decree of the lower Court), that
having regard to the payment and acceptance of
instalments in this case subsequently to 1892, the
parties had been remitted to the same position as
they would have been in if no default had then
occurred, and that on the subsequent default in
1897 the plaintiff's right to execution arose, and
that consequently his application in 1899 was in
time. Per Jenkins, C.J. — The true view appears
to me to be that, though there may be a failure to
pay pimctually under an instalment decree, still the
subsequent conduct of the parties may preclude
either of them from afterwards asserting that pay-
ment was not made regularly and in satisfaction of

the obligation under the decree This view is

not far, if at all, removed from an application of the
doctrine of estoppel, for it would be but an elabora-
tion of it to say that if each of the parties has by his
acts intentionally caused the other to beheve that
the payment was a regular satisfaction of the
obhgation, and the parties have acted on that behef
neither can afterwards deny the regularity. It is a
fundamental proposition of law that payment and
acceptance of overdue instalments cannot by them-
selves prove a waiver. The point is one to be deter-
mined on the circumstances of each case. Dnlsook
V. Chugon, I. L. R. 2 Bom. S5f>, and Balaji v.
Sakharnm, I. L. B. 17 Bom.. 555, commented
on. Kashiram v. Pandu (1902).

I. L. R. 27 Bom. 1

7. JOINT DECREES.

(a) Joint Decree-holders.

'ITie following are the cases decided as to the pro-
ceedings in joint decrees under the Acts of 1859 and
1871 :—

1. expl. I Application hy one of

several decree-holders. Every application made by
one or more out of several decree-holders is an
application made in the interests of all, and every
proceeding taken by one is a proceeding taken for
the benefit of all to enforce the judgment, or to keep
it in force. Roy Preeonath Chowditry ?■. Pran-
NATH Roy Chowdhry . . 8 W. R. 100

LIMITATION ACT (XV OF 1877)^on«i.
Schedule II — contd.

Art. VIQ-— cont'd.

7. JOINT DECREES— con«(Z.
(a) Joint Decree-holders — conti.
Dhanessxjree v. Goodhur Sahoy

11 W. R. 42]
Bhoobunessuree Debia v. Ch0nder Monei

Debia 21 W. R. 24:

HuRDCK Roy v. Zuhooree Mdll

22 W. R. 461
OuDH Behari Lal v. Brajamohan Lal

4 B. L. R. Ap. 41 : 13 W. R. IS'
Johiroonissa Khatoon v. Ameeroonissa Kh^
TOON . . . . 6 W. R. Mis. 51

Indurjeet Koonvvar v. Mazaw Ai.i Kha.n

e W. R. Mis. 7

2. — • Arrangement I

decree-holders amongst themselves. In the cae
of a joint-decree, any arrangemeat made by th,
decree-holders amongst themselves as to the'
relative shares in the amount of the decree woul!
not alter its character, and bond fide proceefingl
taken by one of the number to execute the decrej
would keej) ahve the rights of all the decree-holder.'
Indubjeet Kunwar v. Mazam Ali Khan

6 W. R. Mis. 7

Brijo Coomar Mullick v. Ram Buksh Chj

terji , . . 1 W. R. Misi

3. Applicaiion af

death of some of decree-holders — Civil Procedu
Code, 1S59, s. 207. A joint decree for damag
was obtained by several plaintiffs in the Court oli
Principal Sudder Ameen of Patna in 1854, and m
kept alive by endeavours to execute it till 1861. '
the 15th June 1861 the Court passed an order mo
fying the costs of the original decree, but this or(
was reversed on appeal on the 19th August 18 .
Some of the plaintiffs having died in the meantii
an application was made on the 29th July 1863, a
an order was passed thereon on the 26th May IS
Avhereby the present decree-holders were substitu
for the deceased plaintiffs. A new Principal Sud
Ameen was appointed on the 10th December !;■
and he reversed that order, and required from
present decree -holders a certificate of heirship, wl
they obtained on the 16th September 1865. On
20th of the same month an order for execution -i
made by the Principal Sudder Ameen, but it )-i
reversed by the Judge on appeal, on the ground fit
the order of the 26th May 1864 was not a proceefiig
within the meaning of s. 20 of Act XIV of 18' ;
and therefore the application for execution was JO
late : — Held, that execution might have been obtn-
ed under s. 207 of Act VIII of 1859 by the survirs
of the original decree-holders for the benefit of' ■
parties interested in it. The order of the li
Appellate Court was reversed. Teja Singi
Rajnarayan Singh . . 1 B. L. R. A. C'^

'613 )

DIGEST OF CASES.

( 7614 )

'MITATION ACT (XV OF 1877)— co»«r7.

Schedule II — contd.
Art. 119— contl.

7. JOINT DECREES— confr?.
(o) Joint Decree-holders — contd.

c. Teja Singh v. Pokhux Singh

10 W. R. 95

.,, _ Separate tahing

t. o/ execution — Civil Procedure Code, 7S59, s. 207.
'. -ee persons obtained a joint decree. Two of
t m took out execution and realized each his own
t re. The third apphed for execution -within three
} rs from the time of the last proceedings taken by
t -)ther two, but after a lapse of three years from
t last proceedings taken jointly by all three : —
i(/, that under s. 207, Act VIII of 1859, there
\ no severance of the decree, and therefore the
j,reedings taken by the two kept the decree ahve.
.'■ ^UNNISSA Khatun V. Shashi Bhfshan Bose

2 B. L. R. Ap. 47 : 11 W. R. 343

. Separate taking

c oj execution. In a case in which a certain sum
\ adjudged to five persons as an entire sum to
A ch all of them were jointly entitled, but one
n cty to three of them and the other moiety to the
r aiuing two : — Held, that the effect of the adju-
(1 .tion was the same as if two separate and dis-
t t decrees had been pronounced, and that no
aon taken by the decree-holders to whom one
n ety had been assigned could keep the decree
ois for the benefit of the others. Chooa Sahoo
I', ripoora Dutt . . 13 W. R. 244

:. Application by

miecree-holder for execution. Where one of several
ic|t decree-holders made, under Act VIII of 1859,
».|7, proper apphcation for execution, the date on
W|:h the application was made was held to con-
^' ;p a point of time from which would run the
i'n of three years provided in Act IX of 1871,
. Art. 167. HuRUCK Roy v. Zuhooree

22 W. R. 468

— Application to

part of decree. An apphcation to execute an
part of a decree, though irregular and in-
il for tlie purpose, must, if made bo7id fide
misapprehension of the law, be regarded as
•'ling which keep« the decree alive. Koylas
•nosE V. Nitya Shama Dassee

15 "W. R. 449

tB Chunder Dass v. Ram Chunder Poddar

16 W. R. 29

Kishore Deb v. Kishore Chfnder
iiRY . . . . 16 W. R. 267

MOYEE DaBEE V. NiLMONEE ClirCKER-

25 W. R. 70

Application for

■xecutiori. of joint decree — Costs. An applica-
r the partial execution of a joint decree by one
iecree-holders is not an apjjlication accord-

LIMITATION ACT (XV OF 1877 i—cmid.

Schedule 11— contd.
Art. 179— contd.

7. JOINT DEOREES— contd.

{a) Joint Decree-holders— contZ.
ing to law, and consequently has not the effect of
keeping the decree in force. Where a decree of the
Sudder Court awarded C(jsts in the lower Court to
certain defendants separately-, and to eight sets of
defendants collectively, and costs in the Sudder
Court to three sets, and the only applications which
were made for execution of the decree within the
period of hmitation were made by one of the defend-
ants to recover his costs in the lower Court and a
fractional share of the costs in the Sudder Court
awarded to his set of defendants, a subsequent
application by him and the other defendants for
execution of the decree was held to be barred by
limitation. Ram Autar v. Ajudhia Singh

I. L. R. 1 AU. 231

9. Ap'plicution by

one of two joint decree-holders for part execution of
joint decree— Act X of 1S77 {Civil Procedure Code,
s. 231). A decree passed jointly in favour of more
persons than one can only be legally executed as a
whole for the benefit of all the decree-holders, and
not partially to the extent of the interest of each
individual decree-holder: — HeM, therefore, where
one of two persons, in whose favour a decree for
money had been passed jointly, applied on the 27th
April 1880 for execution of a moiety of such decree,
and the other of such persons made a similar appli-
cation on the 30th April 1880, that such appUca-
tions, not being made in accordance with law, were
not sufficient to keep the decree in force. Also that
the illegality of such application could not be
cured by a subsequent amended application for the
execution of the decree as a whole, preferred after
the period of limitation had expired. Collector
OF Shahjahanpur v. Surjan Singh

I. li. R. 4 All. 72

10.

Application by

two of three joint decree-holders for part execution of
joint decree — Acquiescence by jwlgment-debtor in
part execution. A decree for money was passed in
1871 in favour of two persons jointly. In 18S.3 the
decree-holders applied for execution thereof. By
previous application for execution made in 1875,
1877, and 1880, the decree-holders had sought to
recover to two-thix-ds of the amount of decree : —
Held, that, inasmuch as the previous executions of
the decree by some sharers for their shares, whether
strictly allowable or not, were allowed, and no
objections at the time were twken they were good
for the purpose of keeping the decree alive, and that
the judgment-debtor could not now take exception
to them as not being applications to cnfiTce the
decree within the meaning of the Limitation .Act.
Mungul Pershad Dichttv. Orija Kant Lahiri, I. L.
li.SCalc. 51, followed. Nanda Rai v. Raghu-
nand.an Singh . . I. L. R. 7 All. 282

( 7615 )

DIGEST OF CASES.

( 7616

LIMITATION ACT (XV OP 1811)— contd.

Schedule II — contd.
Art. 119— contd.

7. JOINT DECREES— confi.
(a) Joint Decree-hoi-ders — contd.

11. Application for

partial execution, of joint decree. Although the
Civil Procedure Code does not allow one of several
decree-holders to apply for the partial execution of a
joint decree, yet an appHcation by one of such
decree-holders for execution of the decree in respect
of so much of the rehef granted to all as he considers
appertains to him individually may keep in force
the decree as being an application according to law.

PONAMPILATH PaBAPBAVAN KuTHATH HaJI V.
PONAAIPILATH PaRAPRAVAK BaVOTTI Ha.TI

I. L. R. 3 Mad. 79

12. Application for

partition under decree — Decree for partition. A
consent decree for j)artition made between three
parties contained a provision that, if the plaintitTs
should not have the property partitioned within two
months from the date thereof, any one of the other
parties to the suit might obtain partition by execut-
ing the decree. One of the parties sued out execu-
tion and obtained partition and possession of his
own share. More than three years after the date of
the decree, but less than three years from the date of
the api:)lication just mentioned, another of the par-
ties appHed for partition, under the decree : — Held,
that the application was not barred by limitation
under the provisions of the Limitation Act XV of
1877, Sch. II, Art. 179, expl. 1. Mohun Chunder
Ktjrmokar v. Mohesh Chunder Kurmokar

I. L. R. 9 Calc. 568

13. Decree for parti-
tion, application for execution of — Co-shnrers. A
on the 29th June 1871, obtained a decree for parti-
tion against B, his co-shareholder, and on the 28th
November 1876 apphed to have the execution-
proceedings struck off the tile. The application was
refused, and the partition was ordered to be com-
pleted at ^'s expense : — Held, that, as the execu-
tion proceedings taken either by one shareholder
or the other were taken on behalf of both, limita-
tion did not apply. Khoorshed Hossex v.

NUBBEE FaTIMA

I. L. R. 3 Calc. 551 : 2 CL. R. 187

14.

Application for

execution of decree — Poiver of monktear to make appli-
cation— Civil Procedure Code, lS-59, s. 207 — Waiver
of irregularity by Court. An application for execu-
tion of a decree on behalf of all the judgment-
creditors was presented in Court by a mooktear.
The mooktear had himself appended to such appli-
cation the names of all of them but one who had
signed his own name: — Held, reversing the decision
of the Court below, that although exception might
fairly have been taken to the form of the appUcation
at the time it was presented, yet, having once been
accepted by the Court, it was substantially an

LIMITATION ACT (XV OF l811).~contd
Schedule II — contd.

Art. 119— contd.

7. JOINT DECREES^;o»«i.
(a) Joint Decree-holders — concld.
application on behalf of all the judgment-credits
sufficient to prevent the operation of the Law f
Limitation. AuTOO Misree v. Bidhoo.mooke:
Dabee . . . . I. Ii. R. 4 Calc. 65

15. . and ss. 7, 8— Civil Precede.

Code, 1SS2, ss. 231, 25S— Disability of—Miuorit -
Execution of decree. A member of an undivid
Hindu family and his two minor brothers (to
sued by him as their next friend) broug'u
suit for partition of family property against t.r
father, and joined as defendants certain perss-
who were in possession of part of the propty
under ahenatious made by the father, but ailed
in the plaint to be invalid as against the fan:/.
In 1875 a decree was passed in favour of the plaii tf
in the above suit. No application for the exeeu'.n
of the decree was made by either the first or seC'd
plaintiff ; but the third plaintiff, having attai d
his majority in June 1881 appHed for executioi.n
April 1884 : his application was opposed by 'O
of the defendants :— The District Judge made.n
order granting his application in respect of the le
quarter share to which he was declared to)e
entitled under the decree : — Held, that the ordpf
the District Judge was wrong. The decree wasbt
one " passed severally in favour of more peniB
than one distinguishing portions of the subjit-
matter as payable or dehverable to each ; " anis
neither s. 7 nor s. 8 of the Limitation Act ,las
apphcable to the case, the application was baed
by limitation under Art. 179 of tlie Limitation it.
Seshan v. Rajagopala. Rajagopala v. SESMf

I. L. R. 13 Mad. 3»

16. Civil ProcM

Code, ss. 231, 232 — Assignment of decree by '■
tion of law — Application for execution "/ /-

A Hindu obtained in 1878 a decree for partiti
certain property and applied in 1888 to h'
executed. It appeared that the decree-holder
having obtained against him in 1881 a decrei
share of whatever he should acquire under the >
of 1878, had appHed for execution of the
mentioned decree ; and reUance was now y
on that application to save the bar of limitatict —
Held, that, assuming the decree of 1881 had eff<ted
an assignment by operation of law of the deci i»
1878, the father and son were not joint dep-
holders within the meaning of Civil Procedure (fief
s. 231, and the father's appUcation for execjion
was barred by limitation. Ramasami v. j|OA
Pillai . . . I. L. R. 13 Mad.|47
This decision was set aside on review, arj i*
was held on the facts as then presented topM
Court that the decree was not a joint decree,|in<i
that no question therefore arose as to the <<'C*
of expl. I to Art. 179 of the Limitation Act. R'L\-
SAMi V. Anda Pillai . I. L. R. 14 Mad.^&^'

( 7617 )

DIGEST OF CASES.

( 7618 )

IMITATION ACT (XV Or 1611)— contd.
Schedule II — contd.

Art. lld—omtd.

7. JOINT DECREES— contd.
(b) Joint Judgment-debtors.

Decree, declaring

t irate liability — Proceeding to keep decree aliv
\ ere a decree was passed against several dcfend-
a% each of whom is declared to have a separate
li ility in respect of a definite amount, execution
a .nst one or more of such judgment-debtors keeps
tl decree in force against all simultaneously.
J lESH Chunder Chowdhry v. Moiirx Lall
S VB 8 "W. R. 80

3. Proceeding

a{ mt some only of judgment-debtors. A pri)ceeding
aj.nst certain of a number of joint judgment-
di,;ors, in which, in the presence of certain of them.
It's are released from execution and some declared
liie, is a proceeding within the meaning of s. 20,
A XIV of 1859. MoHESH Chunder Biswas
V. IRAMONEE Dassee . . 9 W. R. 240

'• • — Proceedings

agist some only of judgment-debtors. The law
m.es no distinction between the different defend -
ar liable under a decree ; the decree is kept
wl ly in force if any effectual proceeding is taken
ar,T it within the prescribed time to keep it alive.
Bvwhere a decree, though nominally in one docu-
mt, really contains separate decrees against
so rate individuals, the law of limitation may be
IJuinto force in execution against the different
•If idants as if therr were separate decrees. Step-
HijON V. Unnoda Dossee . 6 W. R. Mis. 18

■i" ^^ — Death of jiidg-

'■ ■''•^•^(yr — Execution — Execution against one "of

" prescntalivcs of a sole debtor — Death of

ijresentative — Subsequent application for

•■ c "rt against other representatives — Practice.

A' pphcation for execution against one of the

f"! sontatives of a sole judgment-debtor saves

■:i against another representative. Accord-

lere the plaintiff, on the death of his sole

K-d out execution on the 18th June 1881,

iikliast. No. 718 of 1878, against V, one of

-'lis of the debtor, and the execution-

-< < untinucd till the death of V in March

•leupon the plaintiff applied on the 28th

I to put M and N, the brothers of V, on the

ins representatives -.—Held, that the appli-

'^ not too late against M and iV regarded as

esentatives, with their brother V, of their

''lo original judgment-debtor. Eawanuj

"gh V. Hingu Lai, I. L. R. 3 All. 157.

■J I JaNARDAN I'. MURARRAV

I. Ii. R. 12 Bom. 48

, 1. 7~1 Application for

■ on Of decree against legal representatives of

udgment-debtor. An appUcation for cxe-

'i decree against one of the several legal

. aiatives of the deceased judgment-debtor

'/OL. in.

LIMITATION ACT (XV OF lQn)~c(mtd.
Schedule II — contd.

Art. IIQ— contd.

7. JOINT DECREES— con<6^.

(6) Joint Judgment-debtors — contd.

takes effect, for the purposes of limitation, against

them ail. Ramanuj Sewak Singh v. Hingu Lal

I. L. R. 3 All. 157

22. _ Decree against

two persons specifying period for which each was
liable — Execution against one. Where a decree was
given for arrears of rent against two persons, and
one of them was afterwards declared on appeal to be
liable for the rents for a certain period only, and
execution was taken out against him only : — Held,
that the decree must be taken as a separate decree
against each defendant for tlie portion for which
each was declared to be liable.and consequently that
execution proceedings against one would not pre-
vent the law of Hmitation applying to bar execution
againi-t the other. Wise r. Rajnarain Chuker-
butty . 1 B. L. R. F. B. 258 : 10 W. R. 30

Khema Debea v. Kamolakant Bukshi

10 B. L. R. 259 note : 10 W. R. 10

23. . Surety — Sepa-
rate liability — Proceedings to keep alive decree. In
execution of decree, the debtors arranged to pay the
debt by instalments, and the petitioner entered into
a surety-bond by which he agreed on failure of tho
debtors to pay the debt, or any one of the instal-
ments, to be liable for the debt, or to have execution
at once taken out against him : — Held, that the
surety's was a separate liability ; that proceedings
against one or others of the joint debtors which
would keep the decree alive against all of them
would not affect him ; and that, if he could be pro-
ceeded against in execution of the original decree,
execution should have been taken against him from
the date when his hability commenced, and that
the decree should have been kept alive as against
him by proceedings irrespective of those taken
a<'ainst the judgment-debtors. Hurkoo Singh r.
Ram Kishen . . . 6 W. R. Mis. 44

24.

Application for

execution against a surety when a step in aid of
execution against a jmnciptd — Mode of enforcing
payment against a surety. V was awarded the sum
of R4,951-13-ll by the District Judge as compensa-
tion for land taken up by the Collector under tho
Land Acquisition Act, 1870. The money was
ordered to be paid over to him on his giving security
for its refund in case the Appellate Court so ordered.
D thereupon became his surety and executed a bond
binding himself to pay into Court the said sum o£
R4,95r-13-ll. if ordered by the Court. On the 25th
September 1893 the High'Court varied the order of
the District Court and awarded R4,204-7-ll (part
of the R4,951-13-ll) to another claimant K (the
appellant). On 17th February LS94 K applied for
execution of this order against the surety D and

11 K

( 7619 )

DIGEST OF CASES.

( 7620 ')

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
. Art. 179— contd.

LIMITATION ACT (XV OP 1877)— csn

Schedule II — contd.
Art. 179— contd.

7. JOINT DECREES— conici.
(b) Joint Judgment-debtoks — contd.
claimed also interest (Rl,635-10-0) and costs
(R550-15-4). D objected to pay interest or costs,
and the High Court held that, as surety, he was
liable only for the principal sum, but not to interest
or costs. Subsequently, viz., on the 16th February
1897, K applied for execution against the principal
debtor V of the order of the 25th September 1893,
in respect of the interest and costs, contending that
his application of the 17th February 1894 against
the surety was a step in aid of the execution of the
order under Art. 179 of the Limitation Act (XV of
1877) and prevented limitation : — Held, that his
appMcation was barred by limitation. The appli-
cation for execution against the surety would not
operate to keep ahve the order as against the prin-
cipal debtor unless it was made to enforce a liabi-
Uty which was common to both under the order.
But under the order the surety was not liable for
interest or costs. His liabihty was expressly con-
fined by his bond to the principal sum, and it was
only as to that sum that he was jointly liable with
Vinayak. The previous apphcation, therefore, for
execution against the surety for money for which
he was not liable under the order could not be
regarded as a step in aid of execution against the
principal debtor V. The mode of enforcing pay-
ment against a surety is by summary process in
execution, and not by separate suit. Ktjsaji
Haaiji v. Vinayak Ramchanda Paxbhu

I. L. R, 23 Bom. 478

r 25. Application for

execution of decree against some of the joint judgment-
debtors, out of time — Realization of a portion of
.the decretal amount by such execution, effect of,
as against other judgment-debtor who was not a parti)
to the execution-proceeding — Application in accord-
ance with law. A judgment- debtor, who was not
a party to a previous apphcation for execution of a
decree or to any order made upon it. is not preclud-
ed from showing that the said application was bar-
red by limitation, and that therefore it was not in
accordance with law. A decree was obtained
against four persons on the 13th August 1890. An
apphcation for execution was made against aU of
them on the 7th October 1893. A subsequent
application was made against two of them on the
17th February 1897, and a portion of the decretal
amount was reahzed. On a further application for
execution against persons who were parties to the
previous execution-proceeding and also against a
person who was not a party to the said proceeding,
objection was taken by the latter that the applica-
tion for execution as against him was barred by
limitation : — Held, that the application was barred
by limitation, inasmuch as the objector was not a
party to the previous execution-proceeding, which
was iteelf barred by limitation, and therefore it

7. JOINT DECREES— cond(Z.
(6) Joint Judgment-debtors — cowU.
had not the efiect of keeping the decree al.>,
Harendra Lal Roy Chowdhry v. Sham Lal ;n
I. li. R. 27 Calc. C

26. — — Application o\

execution against some defendants jointly liable v a
decree talces effect against all persons jointly li.'e
Where a decree awards mesne profits against A ic
B joiutly, and costs jointly against A, B and Cii
application to execute the decree for mesne p it
against A and B keeps alive the right to executme
decree for costs against G under part 2 of paragpl
2, Expl. 1 to Art. 179 of Sch. II of the Lite
tion Act. Krishnamachariar v. Mangammal, I L
R.26 Mad. 91, referred to. Subramanya Che'Ai
V. Alagappa Chettiar (1906)

I. L. R. 30 Madiei

27. - Sch. II, ir

179, Expl. I, para. 2 — Decree — Jointly padr-
Application for execution against surety-'iv
Procedure Code {Act XIV of lss-2), s. 2o3—A en
cannot be treated as " jointly passed " as agai. th
judgment-debtor and his surety. Before the p3in
of the decree in an original suit, N becair.'^ '
as surety for the due performance of par^
decree. The decree in the original suit wa-
in January 1893. The decree-holder file^l
applications to execute the decree against t i
ment-debtor. All these applications wer
the periods prescribed by the Limitation A-
1877). But it was onfy in 1902 that he
application to execute the decree under s. -'
Civil Procedure Code (Act XIV of 1882) a
the surety : — Held, that the application t^'
the decree against the surety was barred
since the decree cannot be treated as passi
as against the judgment-debtor and tlv
within the meaning of Art. 179, Expl. 1, V '
2, of the second Schedule to the Limitation
of 1877). The words "passed jointly " in
Expl. 1, paragraph 2, of the second Scheda
Limitation Act (XV of 1877) refer to tl;
which is " passed jointly " against mor •
than one ; and do 'not mean a decree who v
liability may be deduced by combining t:
bond and the provisions of s. 253 of the (^
cedure Code, with the decree in dispute. -
V. TiMMAYA (1906) . . I. L. R- 31 ^

8. MEANING OF " PROPER COUIf"

1. Expl. .II (1871, Art :87}

''Court,'' meaning of— Application to
decree. The term "Court " in Act lA
Sch. II, Art. 167, means the Court whose i - ^
is, either by transfer ,.r otherwise, to exjiw -
decree. Prokash Chunder Lahory ^^l>'"
ChunderRoy . . . 21VR.4.

( 7621 )

DIGEST OF CASES.

( 7622 )

IMITATION ACT (XV OF 1877)— conhl.

Schedule II — contd.

_| Art. 179— concld.

8 .lEANING OF " PROPER COITR'J' "—concld.

. _ " Court " — Con-

cx'tor. A conciliator appointed under the Dekkhan
i^iculturists' Relief Act (XVII of 1879) is not a
C rt. The presentation therefore to a conciliator
o1 1 application for execution of a decree within the
p. 3d of limitation does not save the limitation, if
tl ipplxation to the proper Court be time-barred :
A XV of 1877, s. 14, para. 3 ; iSch. II, Art. 179.
Ji/OHAK V. Gebiapa . I. L. R. 6 Bom. 31

Art. 180 (1871, Art. 169 ; 1859,

_9)-

Decree of Sudier

"nhutia. The twelve years' limitation was

to apply t> a decree of the late Sudder

>hich was not a Court established by Royal

t trr. Thakoor Doss Gossain v. Kashee Nath

MilorL 12 W. R. 73

JBO Peeshad Roy Chowdhry v. Manick
LittKCB . , . , 12 W. R. 343

— Judgment of

"' Supreme Court sitting as Small Cause Court
The judgments of the Judges of the late

■ Court sitting under Act IX of 1850 (the
' ' ■ iu-:ts Courts Act) were held to be judgments

"lilt established by Royal Charter, and were
■ ■ ■ not afifected by Act XIV of 1859, s. 20, but
. emed by s. 19. Coultrotjp v. Smith

1 Mad. 204

— Decrees of High

!t was formerly held that the execution of
•f the High Court was governed as to limita-
• s. 19, and not s. 20 or 22, of Act XIV of 1859.
AB Chaxd v. Tarucknath Mookerjee

6 W. R. Mis. 94
1 AN- Chuxder Chowdhry v. Jugodishuree
8 W. R. 267
;av Krishna v. Madharvrav Ramrav

5 Bom. A. C. 214
rolings, however, are to the contrary — see

— ■ Decree of Privy

S. 19, Act XIV of 1859, applies only to
1 this country established by Royal Charter

■ to the Privy Council, the execution of
•i-crees was subject to the limitation
d by s. 20 of that Act. Wise i;. Jugo-
' Baboo . . 4 W. R. Mis. 10

^ Execution of ,

Privy Council— Court established or not
I by Royal Charter-Act XXV of lS.r2, '
'■Peacock, C.J., Trevor and L. S.
• •''^•— A decree of Her Majestv in Council
■■ a decree of a.Court established by Royal
''au ^' ^^' ^^^ ^ decree of a Court not
"d by Royal Charter within s. 20 of Act

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 180— contd.

XIV of 1859. Therefore that Act does not apply to
such decrees. S. 1 of Act XXV of 1852 only
prescribes the procedure for executing such decrees,
and does not apply any law of limitation to them.
Anandamayi Dasi v. Purno Chaxdr\ Roy

B. L. R. Sup. Vol. 506 : 6 W. R. Mis. 69

Alteration

decree on appeal — Decree of lower Court altered by
High Court. Where a decree of lower Court is
materially altered on appeal by the High Court —
e.g., where the amount of mesne profits allowed by
the lower Court is cut down by the High Court, —
the decree becomes a decree of the High Court, and
the period within which a proceeding must have
been taken to enforce the same, so that it may not be
barred by the law of limitation, is twelve years
under s. 19 of Act XIV of 1859. Chowdhry
Wahid Ali v. Mitllick Ixayet Ali

6 B. L. R. 52 : 14 W. R. 288

7. Execution of

decree of High Court on appeal from mofu^ssil. A
decree of the High Court on appeal from the mof ussil
must be executed within three years under s. 20, Act
XIV of 1859. Such decree is not a decree of a Court
established by Royal ^Charter within the meaning of
s. 19. Ramcharax Bysak v. Lakhikaxt Banxik
7 B, li. R. F. B 704 : 16 W. R. F. B. 1

See Arunachella Thtjdayan v. Vei.udayax
5 Mad. 215

Execution of

decree of High Court on appeal from mofussil —
Portion of decree relating to costs. The portion of a
decree of the High Court on appeal from the mofussil
which relates to costs comes within s. 19, Act XIV
of 1859. Tafuzzal Hossein Khax v. Bahadur
Singh . 7 B. L. R. 706 note : 11 W. R, 205

9. Embodiment in

final decree of portion afTirmed. Where the High
Court passes a decree on appeal from a mofussil
Court, the Court which has to execute the decree of
the High Court is governed by the rules which
govern the execution of its own decrees. The ruling
in Choivdhry Wahid Ali v. Mullick In t yet Ali,
6 B. L. B. 5'! — that, whether the decree of'the lower
Court is reversed or modified or affirmed, the decree
passed by the Appellate Court is the final decree in
the suit, and as such the only decree which is capable
of being enforced by execution, — not dissented
from, except that it was suggested that in all cases
it may be expedient expressly to embody in a decree
of affirmance so much of the decree below as it
intended of affirm, and thus avoid the necessity of a
reference to the superseded decree. Qutere : Can
the ruling in Anandamayi Da-si v. Purno Chandra
Boy, B. L. R. Sup. Vol. oOn, be supported ? Kisto-
kinker Ghose Roy v. Burrodacauxt Singh Roy
10 B. L. R. 101
17 W. R. 292 : 14 Moo. I. A. 465

11 K 2

( 7623 )

DIGEST OF CASES.

( 7624 )

LIMITATION ACT (XV OF 1871)— cont<L 1 LIMITATION ACT (XV OF 1877)

Schedule II — contd.
Art. l80—co7Ud.

s.c. in lower Court, Kisheit Kinker Ghose v.

Bfroda Kant Roy . . 8 W. R. 470

Joy Narain Giree v. Goluck Chunder Mytee

22 W. B. 102

10.

Execution of an

order of Privy Council — Order in Council confirming
a decree. Although an order of Her Majesty in
Council may confirm a decree of the Court below,
that order is the paramount decision in the suit ;
and any application to enforce it is, in point of law,
and application to execute the order and not the
decree which it confirmed. Such an application is
governed by Art. 180, gch. II of Act XV of 1877.
LucHMUN Pekshad Singh v. Kishun Pershad
Singh . I. L. R. 8 Cale. 218 : 10 C. L. R. 425
Bhooboona Altjmbabi Koer v. Jo bra j Singh

11 C. L. R. 277

11.

Application for

execution of decree — Revivor — Order for execution
after notice — Writ of scire facias. The plaintiff
obtained a decree in 1864. The first application for
execution was made in September 1869 under s. 216
of the Civil Procedure Code (Act VIII of 1859) ;
and after notice to the defendant as provided there-
by, an order was made under that section for execu-
tion to issue. In September 1880 an application for
execution was made under s. 230 of the Civil Pro-
cedure Code of 1877, which repealed Act VITI of
1859 : — Held, that the order after notice had the
effect of reviving the decree within the meaning of
Art. 180, Sch. II, Act XV of 1S77, and therefore
the decree is not barred by the law of limitation.
An order for execution under the Code made after
notice to show cause has, on the Original Side of the
Court, the same effect as an award of execution in
pursuance of a writ of scire facias had under the
procedure of the Supreme Court, — i.e., it creates a
revivor of the decree. Ashootosh Dutt v. Doorga
Churn Chatterjee

I. L. R. 6 Calc. 504 : 8 C L. R. 23

12.

Application for

execution of decree — Decree of High Court — Civil
Procedure Code {Act X of 1S77), s. 230. The plaintiffs
obtained a decree of the High Court of Bombay
against the defendant on 22nd February 1867. The
defendant, after the passing of the decree against
him, resided in Ahmedabad. In July plaintiff as-
signed his decree to L, who in 1S76 assigned it to M.
From time to time M obtained orders for the execu-
tion of the said decree, but was always unable to
proceed to execution. The last order for execution
made by the High Court was on the 4th February
1879. In April 1879 the decree was transmitted
to the Court at Ahmedabad for execution, and that
Court in September 1879 issued a warrant of arret t
against the defendant, against the order for which
the defendant appealed. The said order was con-
firmed by the High Court on 10th February 1880.
In April 1881 the defendant was in Bombay, and M,

Schedule 11— contd.
Art. 180— contd.

the decree-holder, obtained a summons calling i
defendant to show cause why the decree should ; :
be executed against him. On 3rd May the sumni' s
was made absolute. The defendant appealed tl
contended that the application for execution 's
barred by limitation under s. 230 of the Civil li-
ceduro Code (Act X of 1877), which was to be rl
with cl. 180 of Sch. II of the Limitation Act, XV.f
1877: — Held, that the application was not bar i.
Cl. 180 of the second Schedule of the Limita-ja
Act, XV of 1877, was intended to be indepenc'lt
of s. 230 of the Civil Procedure Code, and not to '^a
any way controlled by it. S. 230 does not ^ j
to decrees irade by the High Court. Mayaijvi
Prembhai v. Tribhuvandas Jagjivandas I
I. li. R. 6 Bom. :|»

Ganapathi v. Balasundara ;

I. L. R. 7 Mad. tO

13.

Executiovlof

decree — Order of Her Majesty in Council — Revii —
Civil Procedure Code (Act XI V of 18S2), ss. iSO'U
— Res judicata. A decree was obtained againslhe
judgment-debtor in the Zillah Court in 1860, v ch
was reversed by the High Court, but was reston on
appeal to Her IMajesty in Council on the r\'\
May 1872. This decree was assigned to the ji
decree -holders on the 10th April 1873. I;
the 27th November 1872 and 10th Apr ;
various applications for execution of the Ore ii
Council were made, attachment proces es itied,
and proceedings struck off. In 1880 the d f -
holders brought a suit to establish the righ'
judgment-debtor to a bond in favour of tli
for a certain sum of money, and on the 15tii
1881 they obtained a decree which was upln
the High Court on the 20th March 1882. Aft
decree, between the 10th February 1883 n;
19th April 1886, a number of applicatioi
made for execution, which were struck off. ^
application was made on the 25th July 1^
execution. On the 28th October 1887 th-'
ment-debtor filed an objection on the groin
the decree was barred. On the 20th Decern 1
the objection was overruled and execution
but the proceedings were struck off on tl
March 1888. Then after another applicati
been made on the 28th September 1888, the
application was made on the 19th Novembi
when the judgment-debtor filed an objectior
ground that the decree of which executi
sought was barred by the law of limitation :
that the decree which was sought to be enfor
an ' ' Order of Her Majesty in Council ' ' wi:
meaning of Art. 180 of the Limitation Act.>"'i"
mun Pershad Singh v. Kishun Pershad Sing, \ I'- f
8 Calc. 2 IS: 10 C. L. R. 425, and P*"-)""- /f
Fontaine ^ L. R. 6 A pp. Cas. 4S2, approvec! Art
180 is independent of s. 230 of the Code uvi
Procedure. S. 230 has no application to:t'cree
made by the High Comt in the exercisot i«

( 7625 )

DlGEiST OF CASES.

{ 7626 )

IMITATION ACT (XV OF l8n)-contd.
Schedule II — contL

Art. 180— conid.

iginal civil jurisdiction. In Art. 180, Orders in
iuncil stand in the same category as decrees of

urts established by Royal Charter in the exercise

such jurisdiction. Execution of the decree there-
:'« was not barred by s. 230 of the Code. Mayahhai
Jembhai v. Tribhuvandas Jagjivandas, I. L. R. 6
. m. 25S, and Ganpathi v. BaUundara, I. L. E. 7
.id. 646, referred to. In Art. 180 of the Limitation
A the term " revived " must be read in one and
ll! same sense in connection Avith the High Court
<reesand Orders in Council, and not distributively.
Jllowing the interpretation of revivor in AusJwo-
t' Dutt V. Doorga Ckaraii Chatter jee, I. L. R. 6
ii^.. 504 : S C. L. R. 23, there having been in the
I sent case an order for execution of the decree
ixie after notice of the judgment-debtor, there m as
sih a revivor as prevented the execution of the
li ree from being barred by Art. 180. HeM, also,
tit the objection of the judgment-debtor was res
j icata. The same contention was raised in the
finer applicat'on and overruled by the judgment

' ' Subordinate Judge, dated the 20th December

FuTTEH Narain Chowdhry V. Chuxdra-

(-HOWDHRAIN . I. L. R. 20 Calc. 551

LIMITATION ACT (XV OF 1877)— contd.

Schedule II — contd.
Art. 180— contd.

4. Application for

t}ution of decree — Transfer of decree for execution —
Hivor— Civil Procedure Code. 1882, ss. 223,
2;, and 24S — Insolvent, adverse possessio7i of —
A'chment. A obtained a decree against B on the
oijinal side of the High Court on the 19th Decem-
bjl881. On the 11th December 1893 the judg-
njit-creditor applied to the Court under s. 223 of
tl'Code of Civil Procedure for " transmission of a
CJJified copy of the decree to the District Judge 's
Ojrt of the 24-Pergunnahs, with a certificate that
n<|Ortion of the decree has been satisfied by execu-
ti'j within the jurisdiction of the High Court," and
aljring that the judgment-debtor had no property
Wjiin its jurisdiction, but had property in the
24i'ergunnahs. The application was headed as an
■'I ication for execution, and was in a tabular form.

*his a notice was issued under s. 248 (a) of the
ind the judgment-debtor not having shown
-->iuse on the 19th December 1893, a certified
wi was ordered to be issued. The certified copy of
ti^lecree having been transmitted, the judgment-
cSj.tor, on the 1st March 1894, applied for the
^Jl^ition of the decree to the District Judge. On
tpjbjection of the judgment-debtor that the execu-
wq was barred by limitation -.—Held (Norris and
wCpON, J J.), that the application of the 11th
W«)inber 1893 was not an application for exe-
fnjn, and also that the order of the 19th Decem-
t*jl893 was not an order for execution, and could
■1" operate as a revivor of the decree within

i c;ofArt. 180, Sch. II of the Limitation
' here was no necessity for the issue of

! e under s. 248 upon the application
^ jinsfer the decree under s. 223 of the Code,
*n'on that application execution could not
^a^ been obtained upon the order of the 19th

December 1893. The first application for execution
was that made on the 1st March 1894 to the Court
to which the certified copy of the decree was
transmitted, and that was liot within time. The
execution of the decree was therefore barred by
limitation. Nilmoney Singh Deo v. Biressur Baner-
jee, I. L. R. 1(> Calc. 744, followed. Ashootosh
Dutt V. Doorga Churn Chatterjee, I. L. R. H Calc.
■''04, distinguished. Suja Hossein alias Rehamut

DOWLAH V. MONOHUK DaS

I. L. R. 22 Calc. 921

A review having been granted of this decision
the ajjpeal was re-heard, and on the objections of
the judgment-debtor that the execution m as barred
by limitation, and that he having been declared
an insolvent, and the properties having vested in
the Official Assignee, the attachment was contrary
to IsLW -.—Held (O'KiNEALY and Hill, J J.) that
the execution was not barred by limitation, as the
order of the 19th December 1893 was an order for
execution, and operated as a revivor of the
decree within the meaning of Art. 180, Sch. II,
of the Limitation Act. Held, also, that the judg-
ment-debtor having been in possession of the
property for more than twelve years, the Official
Assignee not having taken possession of it, he
had a title by adverse possession which was
capable of being attached. Ashootosh Dutt v.
Durga Churn Chatterjee, I. L. R. 6 Calc. r>04 ;
Futteh Narain Chowdhry v. CJuitidrabati Chow-
dhrain, I. L. R. 30 Calc. 551, followed. Stjja
HossEiN alias Rehamut Dowt.ah v. Moxohur
Das . . . .1. L. R. 24 Calc. 244
15. Judgment entered

up under s. 86 of the Indian Insidvcncy Act (Stnt. 11
d: 12 Vict. c. 21), s. 86 — Execution of such judgment.
C was adjudicated an insolvent in October 1866
and on the 19th August 1868 judgment was
entered up against him under s. 86 of the Indian
Insolvency Act (Stat. 11 & 12 Vict., c. 21) for
R66,40,648. In 1886 it was ascertained by the
Official Assignee that certain property belong-
ing to the insolvent 's estate was available for
the creditoi's of the estate, and on his application
an order for execution against the said property
was made on the 5th April 1886 by the Insolvency
Court under s. 86 of the Insolvency Act. It was
contended that execution was barred by limi-
tation : — Held, that execution on the judg-
ment was not barred. Per Sargent, C.J.— The
policy of the Indian Insolvency Act is that the
future property of the insolvent should be liable
for his debts. That intention would be to a great
extent defeated if judgment entered up by the order
of the Insolvency Court under s. 86, which is the
machinery provided for effecting that object, could
only be executed within a limited time. Limitation
Acts should not be deemed applicable to judgments
entered up under s. 86, unless their language clearly
requires it. A judgment entered up uijder s. 86 of

( 7627 )

DIGEST OF CASES.

( 7628 )

LIMITATION ACT (XV OP 1871)— contd.
Schedule II— contd.

Art. 180— G^ntd.

the Insolvency Act, althongh a judgment of the
High Court is not a judgment entered up in the
exercise of the ordinary original civil jurisdiction,
nor could the right to enforce the judgment be law-
fully released by any person, and therefore Art. 180
of the Limitation Act did not apply. Per West,
J. — Formerly in England as well as in India the
policy of the Insolvency Acts was to make the insol-
vent perpetually responsible. In England, how-
ever, by Stat. 32 & 33 Vict., c. 83, bankruptcy was
substituted for insolvency, and all pending cases of
insolvency were ordered to be closed within pre-
scribed periods. In construing that statute it
has been declared that after the given time the
insolvent was free from all responsibility, and that
after his death his estate was free also. Thus the
lien on an insolvent debtor 's whole future property
haa disappeared from English law ; but this has
been effected by direct legislation. In India there
has been no legislation with regard to judgments of
the Insolvency Court, but it has been decided that
such a judgment is to be deemed a decree of the
High Court, and executed as such. It must there-
fore be subject to the same rules as other decrees of
the High Court in the absence of any special excep-
tion. Art. 180 of the Limitation Act is therefore
applicable to such a judgment. The Insolvency
Act did not contemplate its being entered up
otherwise than as a judgment of the Supreme
Court, and, as such, it ranked as a judgment
of a chartered Court in the exercise of the ordinary
original civU jurisdiction. The same description
may be applied to it now ; and hence the exe-
cution is limited, as in the case of other
judgments and decrees of the High Court. The
principle of perpetual liability to execution can no
longer be deemed a principle. The English law
has i discarded it ; the Indian law has made all
judgments subject to limitation, and amongst
them judgments of the Insolvency Court, Art. 180,
therefore ap])lies. But the right to enforce the
judgment in the present case did not accrue to the
Official Assignee until the order of the Insolvency
Court to take out execution was made. That order
was not made until AprU 1886, and therefore the
right to execution, which arose on the date of that
order, was not barred by Art. 180 of the Limitation
Act (XV of 1877). In the matter of Candas Narron
Das. Official Assignee (Turner) v. Purshotam
MuNGALDAS Nathubhoy. I. L. R. 11 Bom. 138
Held (on appeal to the Privy Council) that
Limitation Act (XV of 1877), .^'ch. II, Art. 180,
applies to a judgment of a Court for the relief of
insolvent debtors entered up in the High Court, in
accordance with s. 86 of the Stat. 11 & 12 Vict.,
c. 21. Although a Court held under the latter
statute determines the substance of the questions
relating to the insolvent 's estate, the proceedings
in execution and the judgment aie the High Court's.
The judgment is entered up in the ordinary course of
the duty cast upon the High Court by the law, not

LIMITATION ACT (XV OP 1877)— <»/,

Schedule II — contd. |
Art. 180— contd.

by way of special or extraordinary action, b-
the exercise of its ordinary original civil jurisdi( ,
The latter expression in the Charter of 28th Di •
ber 186.5, being opposed to the "extraordin\
jurisdiction which the High Court may assuu
its discretion, upon special occasions and by s :
orders, includes all such jurisdiction as is exe s
by the High Court in the ordinary course rli
without any step taken to assume it. Wh
order has been made under s. 86 of the Stat. 1 :
Vict., c. 21, that execution be taken out, a p le
right accrues to the Official Assignee to apply •;
and therefore Art. 180 of Sch. II assign; .
reference to judgments of High Courts exeisi
ordinary original jurisdiction, a starting-pci
time depending on the accrual of the right to e'oi
them is the Article applicable, hi the mar
Candas Narrondas. Navivahtj v. Turni'
I. L. B. 13 Bon 51
L. R. 16 1. 1 II

16.

Limitnn

Expirutio7i of period for presenting execution pti
while Court closed — Presentation of defective ]^iti
on day of reopening — Return for amendmer-1
presentation. The period of twelve years fri t
date of a decree expired when the Court was ds(
The decree-holder presented a petition for ex iti
of the decree on the first day on which the C^t i
opened, but the petition was found to be de -tii
as it was not verified, and was otherwise tie
The Court returned the petition, under s. 2 1
Code of Civil Procedure, so that it might be a i
The petition was amended, and again i
after the period of imitation had elapse!
that no valid application for execution K
made before the expiration of the period oljiu:
tion, and that the application was barrel T
decree-holder referred to above died afi" tl
hearing of the appeal in the lower Appellatpoui
but before that Court delivered judgment f-^*
that the judgment should be read as f:" *
date when the Court reserved judgment, an
was not incompetent to the son of the decr«
to prefer an appeal to the High Court by i
the fact that he had not been brought on t !
before the judgment of the lower Appellat
was delivered. Held, also, that it was no
bent on the appellant to apply for executii
Court which passed the decree. He had
the proper procedure in applying to the Hi
to be brought on the record ; and, an ordi
been passed, bringing him on the record,
competent to present the appeal. Ragj >'i'^
Thatha Chariar v. Venkatesa Tawkei(1J<^
I. L. E. 26 ]V4- 1^

17. ^^At^a

cution of decree — Notice— Civil Procedure I"** (^
XIV of 1SS2). ss. 232,248. Where a nice w
issued, under ss. 232 and 248 of the Civ Pro^
dure Code, for the execution of a decree, aii tu"*
proceedings were droijped until after tl P^"*^

( 7629 )

DIGEST OP CASES.

( 7630 )

IMITATION ACT (XV OP 1877)— concW.

Schedule II — concld.
Art, 180— concW.

(lowed by limitation computed from the date of
ich decree : — Hdd, that, there being no order
ide by the Court, such notice alone did not
■erate as a revivor of the decree, within the
•aning of Art. 180, Sch. II, of the Limitation
(t. Ashootosh Dvtt v. Durga Churn Chatterjee,
\L. B. >> Calc. fi04, and Suja Hosxein v. Monohar
\V8,I.L.R. '24 Calc. 244, discussed. MoxoHAR
lis V. FuTTEH Chaxd (1903)
! I. L. K 30 Gale. 979 :

s.c. 7 C. W. N. 793

'Q.

Execution of

, ^ — Limitation — Decree of Chartered High Court
■Reriwr. A decree was passed by the High Court
iCalcutta in 18S7. On the 1st of June 1892 an
nlication for the transmission of the decree to
•'i district of Aligarh was made to the High
(!irt. Upon that apijlication a notice under s. 248
•'the Code of Civil Procedure was issued, and on
t'l 6th of August 1892 the following order was
];sed thereon : — " Let execution issue as prayed,
il cause being shown." Held no objection taken,
tttTa subsequent application for execution filed,
dthe loth of January 1903 in the Court of the
inordinate Judge of Aligarh, was time-barred, that
■ti order of the High Court at Calcutta made
S(?r issue of notice under s. 248 of the Code of Civil
Lcednre amounted to a revivor of the decree with-
iilhe meaning of Art. 180 of the second Schedule
t(he Indian Limitation Act, 1877, and execution
yl\i not barred. Svja Hossein v. Manohar Dass,
l\l. R. 24 Calc. 244, Monohar Dass v. Futteh
Cmd, I. L. B. 30 Calc. 979, and Ganapathi v.
l.amndara, 1. L. R. 7 Mad. 540, referred to.
Iraq Sisgh v. Lachmi Narain (1904)

I. L. E. 26 All. 361

IVIITATION ACT (IX OF 1908).

88.1,31—

S. 31 ajyplies to

pettding before High Court on remand by

• .7 Council. A suit on a mortgage was insti-

^ ithin sixty years of the date when the money

0 1 me payable and the appellate decree of the

Bh Court decreeing the claim in such suit was

r»i'rsed by the Privy Council and the case

r«ianded before the Limitation Act of 1908 came

Ui' force. The appeal was pending tlisposal on

^'\ ri-mand in the High Court when the said Act

into operation : — Held, that the case fell

the latter part of section 1 of the Act and

K- plaintiff was entitled to the benefit of s.

the .Act. Srikivasa Pillai v. Vasvdeva

:iAR(1908) . . I. L. K. 32 Mad. 312

8. 20—

LIMITATION ACT (IX OF 1908)— €oncW.

8. 20— eoncW.

Apj/Topriation by

■ of payment towards interest — Intere.<t not
K (IS such — Money paid found by Court to be paid
•'Nfpresi. Under the terms of a mortgage bond
*J uted in 1884 any payments made thereunder

was to be applied first in payment of interest and
next in payment of principal. The debtor paid
several sums from time to time from 1887 to 1899.
A suit for sale was instituted in 1902 and decreed.
The mortgaged property being insufficient to dis-
charge the mortgage an application was filed by the
decree-holder for a decree under s. 90 of the
Transfer of Property Act : — Held, that having re-
gard to the terms of the bond and the finding of the
court that payments were appropriated on account
of interest, it might be rightly inferred that pay-
ments were made on account of interest as such
and that the application for a decree under s.
90, Act IV of 1882, was not barred by limitation.
Hanmantrnal v. Rambabai, I. L. R. 3 Bom. 19S,
Narronji v. Mugnirum, I. L R. 6 Bom. 103, and
Surju Prasad v. Khwahish Ali, I. L. R. 4 All. 612,
distinguished. Gopinath Sixgh r. Hakdko Singh
(1909) . . . . I. L. B. 31 Ail. 285

LIQUIDATED DAMAGES.

See Damages — ;MEAsrRE axd Assessment
OF Damages — Breach of Contract.

See Interest — Stipulations a:>iounting
OR NOT TO Penalties or otherwise.^

LIQUIDATION.

See Practice . I. L. E. 30 Bom. 173
LIQUIDATOES.

Sec Company — AVinding up — Duties and

Powers of Liquidators.
See Company — Winding up— General
Cases . . I. L. E. 15 Mad. 97

. Official Liquidator, assignment

of lease by —

See Landlord and Tenant — Liability
FOR Rent . I. L. E. 14 All. 176

suit by —

See Company — Articles of Association
AND Liability of Shareholders.

L L. E. 17 Bom. 469 ; 472
See Pl-\int — Form and Contents of
Plaint— Pla inti ies.

I. L. E. 17 All. 292
I. L. E. 18 All. 198

Indian Compauies

Act {VI of 1SS2), 3S. 177, 1S5, 1S9, 191—Ordir
refusing supervision order under s. 191 appealable
under s. 169— Liquidator, duties of— Where liquida-
tors, appointed under s. 1S.5, misbehave, supervision
order must be made by Court on the motion of creditors.
The duties imposed upon liquidators by s. 177 of
the Companies Act cannot be delegated by them to
others. Liquidators api)ointed by the company
under s. 177 can be removed only by the court
under s. 185 and are not subject to the control of the
company in the performance of their duties. Where
the hquidators on inisufficient grounds refuse to deal
\s-ith the claim of a creditor on its legal merits, the

{ 7631 )

DIGEST OF CASES.

( 7632 )

LIQUIDATORS— co«cZ'f.

Court is bound to grant a supervision order on the
application of such creditor. Kesavaloo Naidu v.

MURUGAPPA MUDALI (1906)

I. L. R. 30 Mad. 22
LIQUOR, SUPPLY OF.

See Cantonments Act.

I. L. R. 31 Bom. 523
LIS PENDENS.

See Foreign Cotjrt, judgment of.

I. L. R. 19 Mad. 257
See Hindu Law — Widow.

L L. R. 30 All. 95
See Insolvency — Claims op attaching
Creditors and Official Assignee.

I. L. R. 25 Mad. 406
See Mahomedan Law — Debts.

I. L. R. 4 Calc. 402
See Mortgage . . 9 C. W. N. 728
See Parties — Parties to Suits — Pur-
chasers . . . 7 W. R. 225
11 Bom. 64
See Pre-emption I. L, R. 30 AIL 467
See Sale . . . 9 C. W. N. 225
See Transfer of Property Act (IV of

1882), s. 52.
^ee Transfer of Property Act (IV of
1882), ss. 52, 86 and 87.

I. L. R. 29 All. 76

I. L. R. 31 Calc. 658

See Transfer of Property Act. 1 882, s.

88 . . . 13 C. W. Hr. 1138

1. Application of doctrine in

India. The doctrine of lis pendens is applicable to
natives of this country, and has a wider operation
here than in England. The distinction between an
equitable lien created pendente lite and an absolute
sale is that in the latter case, though not in the
former, it is necessary to institute a fresh suit.
Kassim Shaw v. Unnodapershad Chatterjee

1 Hyde 160
The doctrine of

lis pendens is in force in British India. Laksh-

MANDAS SaRUPCHAND V. DaSRAT

I. L. R. 6 Bom. 108

Gulabchand Manickchand v. Dhandi valad
Bhau 11 Bom. 64

Principle of doc-

trine— Registered and unregistered conveyances. The
doctrine of lis pendens rests, as stated by Turner,
L.J., in Bellamy v. Sabine, 1 DeO. & J. 566, not
upon the principle of constructive notice, but upon
the fact that it would be plainly impossible that
any action or suit could be brought to a successful
termination if alienations pendente lite were per-
mitted to prevail. This reason for refusing recog-
nition to alienations pendente lite made by a party
to a suit is e.a fully applicable in the case of a

LIS PEN^DENS-MH^r/.

registered as of an unregistered convejK
Lakshmandas Sarupchand v. Dasrat

I. L. R. 6 Bom.(

,!*-,~ ; English late

phcability of, m mofu-ssil—Suit to set aside a n
tion-s by widoiv. The widow of a legatee of on li
of the residue and the bulk of considerable i a
sued to set aside alienations made by the wicv
one of three executors acting as managers ; heu
band, the deceased executor, being legatee o'.n
sixth. The alienations were made pending a st 1
the same plaintiff in the Supreme Court to ani
ister the entire estate, and to expose defakio
and frauds of the managers and executors il:
after an injunction issued in that suit pro! ti
alienation ; and the alienations were set a; 3
the Court. Qiicpre : Whether the English d(Dri
of lis pendens is apphcable in the mofus.sil i
parte Nilmadhur Mundul 2 Ind. Jur. M". > 1(

The doctri'

lis pendens applies only to alienations which e i
consistent with the rights which may be esta sh
by the decree in the suit. Munisami v. Dak.as
murthi . . . . I. L. R. 5 Ma 8

Assignmen

mortgages — Suit for possession. N being mo ;
in possession of five-eighths of a pangu (sl'e)
certain land— Security for a debt of R400 both
cated his rights to M in 1876. In 1878 Kmg
two-eighths of the said five-eighths from the Mtg
gor. In 1879 K sued N claiming possessioof 1
two-eighths on payment of R400, and obtied
decree and possession thereof. Pending tl: sui
A^ assigned his mortgage to M. M was awanf tl
suit, and K was aware of the assignment wt'n 1
paid R40() into Court for N. In 1883 K bomt tl
remaining three-eighths from the mortgag. ai
sued N and M to recover possession thercj. j
pleaded that he had a valid mortgage oveihre
eighths : — Held, by Muttusami Ayyar, J. '"'*
the assignment of the mortgage by N to -'
real transaction, this plea was good. Per
SAMi Ayyar, J. — The doctrine of lis pen :
only be relied on as a protection of the ;
right to property actually sought to be rec >
the suit. Br.aeannayaki r. Krishna ,

LL. R.9 3>M«

7. The effeciff a /

pendens in India considered. Krishnapp^j^'AW
Mahadappa v. Bahiru Yadavrav 1

8Bom. i|C.6

Sam v. Appundi Ibrahim Saib . 6 T*d. 7

8. Possessii

perty obtained pending suit. Possession of
obtained from a defendant while a suit is
against him in respect of that property
taken to be the possession of the defcndan'
for the purpo.ses of the suit. Ram K
DooleeChand . . . 22W.i. 04

9. Maxim, -P^

dente lite nihil innovetur." The rule ''PennleUi

( 7633 )

DIGEST OF CASES.

( 7634 )

US PENDENS-cjnid.

nAt7 innot'etur " is in force in British India. Where
he owner of a house, during the pendency of
, suit by an unregistered mortgagee for foreclosure
nd sale, mortgaged the same house by a registered
mortgage to another person, it was held that the
list-mentioned mortgagee had no title as against the
iiurchaser under a decree for sale in the suit, although
inch purchaser was the plaintiff in the suit. A
•rantee or vendee of the defendant, becoming such
uring the pendency of the suit, need not be made
i party to the suit ; inasmuch as the above -
Uentione<l rule does not rest upon the equitable doc-
irine as to notice, it is a matter of indifference
■ hether or not, at the time of his becoming grantee
ir vendee, he had actual notice of the existence of

'e suit. GULABCHAXD MaNICKCHAND I'. Dhondi

I. LAD Bhau . . . .11 Bom. 64

10. Possession under

, subsequent mortgage created during th^ pendency
\l a suit by a prior mortgagee. A sale or mort-
]age pendente lite is invalid as against the plaintiff,
Ind the vendor or mortgagor is under a disability
(3 give any valid possession, as against the plaintiff
(I the pending suit, to the party who becomes a pur-
ibaser or mortgagee during the pi-ndency of the
lit, whether or not the purchaser or mortgagee
. tniente. lite has knowledge of the prior sale or
'lortgage as to wliich the litigation is pending, or of
he litigation itself. Kasim Shaw v. Unodaperskad
•hatlerjee, 1 Hiide 160, and Manua' Fruval v.
^anagapalli Latchmidevamvia, 7 Mad. 104,
!)llowed. BAL.4JI Ganesh v. Khttsalji

11 Bom. 24

Sale pendente lite

\-Rigld of purchaser — Mortgage. On the 31st
ogust 1863 A mortgaged his house to B, who
jrought a foreclosure suit, and on 7th July 1806
jbtained a decree against A for the sale of the house
j the mortgage-debt was not paid on or before the
jlth March 1868. The debt not having been paid,
le house was sold at a Court sale on the loth July
1*70 and purchased by C. In an action brought by
lie plaintiff to recover possession of the house, on
le ground that he had purchased it on the 2nd Aug-
ht 1868, at an execution sale under a common

oney-decree aganist A . — Held, that, even if there
!«1 bfen no decree in the mortgage Suit, the fact
jiatthat suit had been instituted in 1806, and was
landing in 1868, would have been sufficient to defeat
jie plaintiff's suit; his purchase in 1868, having
i«n made pendente lite, was completely subject to

«y decree which might be made in the mortgage
jit. Raoji Narayan v. Keishnajt Lakshman

11 Bom. 139

**• — ■ Sale in execution

decree— Purchaser, right of. The purchase of
pperty in the mofussil at a sale in execution of
]«ree is valid, notwithstanding a decree for sale of

e property in a suit for foreclosure pending in the

ign Court at the time of sale, to which the pur-

aser was not a party. Axandamayi Dasi v.

14RENDRA Chandra Mookerjee

8 B. L. R. 122 : 14 Moo. I. A. 181
16 W. R. P. C. 19

LIS PENDENS— rr,„^r/

Affirming the decision of the High Court in An-

NTTND MOYEE DOSSEE V. DhCKUNDRO CuTTXDER
MOOKERJEE . . . . 1 W. R. 103

13. Suit for parti-
tion— Right of purchaser. Three brothers, L M B,
P K B, and G D B, being jointly entitled in equal
shares to an undivided one-t-hird share in certain
property, mo.tgaged their shares by three deeds
bearing different dates to one R N. Between the
dates of the two last mortgages the brothers insti-
tuted a suit for partition of the property and for
certain other objects ; and on the 2nd February
1804 a decree was made in the suit, declaring
the brothers entitled to a one-third share of the
propert}^ and ordering a partition and the taking
of accounts, and reserving the question of costs.
R N was not made a party to this suit On 6th
September 1864 the brothers covenanted to mort-
gage certain propcriy to the plaintiff, includ-
ing that previously mortgaged to R N. On 8th
and 9th December the agreement was performed
i by conveyances, in which R iV joined, and which
I recited that he had been paid off ; and on 28th
j November 1866 and 27th March 1867 the three
brothers conveyed their equities of redemption
to the plaintiff. On l.'ith June 1S68 an order
was made in the partition suit for the sale of a suffi-
cient portion of the property to pay the costs of the
parties to the suit, and under this order the property
which the plaintiff sought to recover in the present
suit was sold on 1st May 1869, and purchased by the
defendant, who at the time had full notice of the
plaintiff's claim : — HeUl, that the doctrine of /('*-
pendens did not apply, and the plaintiff was entitled
to recover possession. Kailas Chandra Chose
V. FuLCHAND Jahurri . . 8 B. L. R. 474

14.

Suit for account

against executor — Sale by Sheriff in execution of
decree — Right of purchaser at Sheriff's sale against
purchaser at sale by mortgagee. In 1855 a decree
for an account was passed, in the Supreme Court
at Calcutta, against A, an executor. .4 died in
1856, and the suit, which was revived against his
representatives, came on for consideration on fur-
ther directions on the 29th of August 1866. It was
then found that A 's estate was liable for
R 1,32,406-11-8, and his representatives were or-
dered to pay this money into Court. The repre-
sentatives having made default in paj'ment, a w rit of
fieri facias \n as issued, under which certain property
was sold by the Sheriff of Calcutta, and conveyed by
him to B on the 1st of April 1807. Previously to
this, the representatives of .4 had, on the 11th of
January 1865, mortgaged the same property,
together v ith other lands, " for the purpose of
paying the Government revenue of certain taluqs
belonging to .4, deceased ;" and the mortgagee
having obtained a decree on his mortgage, the pro-
perty was sold to C in execution of the mortgage
decree on the 30th of March 1867. In a suit for
possession by C against B the latter pleaded lis
pendens : — Held that the nature of the suit, in
wliich the decree of 1855 and the subsequent order
of 1866 were passed, was not such as to warrant

( 7635 )

DIGEST OF CASES.

LIS PENDENS— confcZ.

the application of the doctrine of lis pendens to the
mortgage of the 11th of Januaiy 1855. Kailas
Chandra Ghose v. Fulchand Jahurri, S B. L. R. 4.74,
followed. Kasimunnissa Bibee v. Nilratna
BosE . I. L. R. 8 Calc. 79 : 9 C. L. R. 173
10 C. L. R. 113

15. Purchase pen-
dente lite — Right of purchaser against mortgagee
of property. Plaintiff purchased at a sale on the
District Munsif 's Court of Guntur, held on the 22nd
of December 1868, the interest of one i'' G in a
cotton screw at Guntur. Previous to this, on the
31st July 1867, the husband of the 1st defendant in
the present suit filed a plaint, No. 16 of 1 867, in the
Civil Court of Guntur against the representatives of
F G (who was then dead), praying to be declared
entitled to be treated as mortgagee of the shares of
F G in that and another screw for R 1,696-9-0, and
that the amount might be raised by sale of those
shares. Issues were settled, the 4th of which was —
" Was there a tangible mortgage of real property or
shares in real property ?" — and the decree made on
30th September 1869 found this issue in the affirma-
tive, and declared that the amount sued for should
be paid from the aforesaid shares hypothecated to
the plaintiff in that suit. At a sale in execution of
this decree, the share of F G in the screw at Guntur
was purchased by 2nd defendant (in the present
suit) on the 18th of February 1870. The present
plaintiff objected to the sale and was referred to a
regular suit. Accordingly he brought the present
suit to set aside the decree in No. 16 of 1867 as re-
gards the share of /' G in the screw at Guntur, to
cancel the attachment and sale to second defendant
and for possession of the share. First defendant
pleaded that plaintiff at the date of his purchase had
notice of the pending of the suit No. 16 of 1867
and of the mortgage claim. The plaintiff denied
the fact of the mortgage and its regularity, and
issues were framed, the 1st of which ^vas — " whe-
ther plaintiff knew that the suit No. 16 of 1867 was
under hearing when he bought the one-third share,
and that there might be declared a hypothecation to
the late husband of the first defendant in this suit."
The Civil Court, treating the claim of the plaintiff
in No. 16 of 1867 as a mortgage, held that, as it was
prior in point of time to the sale under the Munsif 's
decree, it should prevail against plaintiff's claim,
even though plamtiff had not notice. The Court also
found that plaintiff had notice. Upon appeal :
HeM, that, as the purchase made by the plaintiff
was made while the suit No. 16 of 1867 was pending,
in which a mortgage was alleged and payment was
prayed out of the property, the plaintiff was
bound by the decree made therein, whether he had
or had not notice, nor could he in any way question
that decree. Manual Feuval v. Sanagapalli
Latchmidevamma ... 7 Mad. 104

16. • = Notice — Right of

purchaser pendente lite as against person whose
lien has been declared in suit to which the pur-
chaser was no party — Notice. Suit to recover pos-
session of a mutah from which plamtiff had been
ejected by an order of Court, passed in execution of I

LIS PENDENS— co«irf.

the decree in a suit to which he was no par ,
Plaintiff claimed under a deed of sale from -4 (a p-
chaser from C and D), dated 11th November 18,
and alleged that he purchased for valuable consid-
ation and without notice of any other cla .
Defendant asserted that plaintiff purchased fraui-
lently with notice of her late husband 's right of p -
chase. It appeared that defendant's husband 1 1
sued C and D and others to enforce a lien upon j
mutah, and obtained a judgment of the Privy Co -
cil upholding his lien and declaring its priority or
the purchase of C and D. This suit was pend^
before the Privy Council at date of plaintiff's p-
chase. In 1862 defendant's husband sued Cam)
for specific performance of an alleged agreement .r
sale, dated October 1851, without adducing :y
e\'idence as to the existence of the agreement, i
got a decree in his favour, because the Princiil
Sudder Ameen had said in the oiiginal case thaC
and D had agreed to sell the m.utah. The pres.it
plaintiff was turned out of possession under Js
decree, to the proceedings in w hich he had in \Vi.
sought to get made a party, on the ground thane
was affected by notice of the former proceediis.
He sought relief under s. 230, Act VIII of i:;),
but his application was dismissed, and he then ci-
menced this suit. The Civil Judge decidedia
favour of plaintiff : — Held, confirming the decrepf
the lower Court, that this was a case of a vendebf
property, perhaps subject to a lien, turned out ujia
a decree against other people declaring the ho,?r
of the lien the ownei of the properly, and tbatae
ejectment was wrongful and procured by a g«a
misuse of the Court's process. Ihe effect of mce
of lis pendens considered. Sam v. Appundi Ibk^I^i

Saib 6 Mad|'5

17. Purchase W-

dente lite — Right of suit. T, having obtainel a
decree against the heirs of U, attached ceijin
property in execution. P, one of the heirs, objebd
that the decree was made against the dcfendan'in
their representative capacity, and that the pid] " '
attached had descended to her, not from B, but
her husband. The objection was overruled an
property sold. P appealed to the High (
which passed a judgment in her favour : — Ud'h
the sale of the property was one pendente lit< .
as such, subject to the final result of the suit bii
the parties ; and that P had a right to coiiii'
Court as against the purchaser and establish hii
to the property. Inderjeet Kooer v. Poip;

Beoum 19 W. IP7

18. Purchaser ft-r

execution sale. In a suit for rent by the aucpn-
purchaser of propei-ty which had been sold in ejcu-
tion of a money-decree, the defendant adn]tfi<»
being in possession, but denied the alleged rel.''|<Jn-
ship of landlord and tenant, contending thajlhe
property' had been purchased by himself at '.m^
in execution of a decree which he had obtained |X)n
a mortgage-bond, i.e., a money-bond with a cuse
creating a charge upon the property. The su on
this mortgage was commenced after the attacf^*
upon which the property was sold to the plf"^''^

( 7637 )

DIGEST OF CASES.

( 7638 )

LIS PENDENS— con'J.

)ut was pending when the plaintifE purchased :—
leld, that the mortgagors were bound by the pro-
■eedings in the suit including the attachment and
lale, and the defendant had a go.,d title agamst the
ilaintiff in the same manner as against the
uortgagors whose interest the plaintiff purchased,
•ven''if the certificate of sale was not registered.
k purchaser under an execution is bound by lis
nndens, for it would be impossible that any action
,T suit cculd be brought to a successful termination
f alienating pendente lite were permitted to prevail.
Raj Kishen Mookerjee v. Radha JIadhub
aoLDAE 21W.K.349

LIS PENDENS-

>id.

19.

Patni

lease

-anted fendente lite. A patni lease of lands
'x-anted by a Hindu widow in possession upheld

hough made pending an equity suit brought by her
: gainst her husband's executors. Bissonath
L'miNDER V. Radha Kristo Mundul
I 11 W. R. 554

■ 20. — Purchase of pro-

KTty on which there is a decree in suit on a mort-
gage-bond—Suit for possession against purchaser
rom mortgagor. The plaintiff in 1877 obtainecl a
ecree on a mortgage-bond, in execution of which
' roperty belonging to his debtor was put up for sale
Ind purchased by the plaintiff on 5th May 1878.
;'he defendants had, in execution of a subsequent
iioney-decree against the same debtor, purchased
he same property on the 1st April 1878. In a suit
I y the plaintiff for possession and mesne profits : —
- leld, following the case of Eaj Kishen Mookerjee v.
\^adha Madhuh Holdar, 21 W. B. 3.'9, that the
i.efendants were purchasers pendente lite, and were
lonsequently bound by the proceedings in the
laintiff's suit on the mortgage-bond. Jhakoo v.
Uj Chxtsdek Dass . I. L. B. 12 Calc. 299

- Sale in execution
-Res judicata. A,

f decree — Auction-purchaser-
he auction-purchaser of certain immoveable pro-
■erty at a sale in execution of a decree, purchased
.ith notice that a suit by H and 31 agamst the judg-
lent-debtor and the decree-holder for a share in such
■roperty was pending, but did not intervene in such
juit. Before the sale to A was made absolute, H
j nd M obtained a decree in the suit for a moiety of
ihe share claimed by them. A took no steps to get
uch decree set aside, but sued them to establish his
jight to such moiety in virtue of his auction-pur-
l^se. It appeared that the Court which passed the
ecree in favour of H and 31 did so without juris-
iction -.—Held, that inasmuch as the suit in w hich
uch decree was made was tried and determined by a
curt havmg no jurisdiction, it could not be held
hat A was bound by such decree, and that it could
ot be said that A was bound to takes steps to get
och decree set aside by means of appeal or that, be-
MMe he had omitted to do so, it had become bind-
ig on him and his suit was precluded. Qiiare :
t'hethcr the doctrine of lis pendens apjlies in the
ise of a purchase in execution of decree. Ali
HAH V. HrsAiii Bakhsh . I. li. R. 1 All. 588

It was held it does not. Nuffur Meedha v. Raw
LallAdhicary . . . 15W. R. 308

22. Sale in execu-
tion of decree — Purchaser, rights of — Decree by
mortgagee — Incumbrance. Where a creditor ob-
tains a decree against' his debtor, and in execution
puts up for sale, and himself becomes the purchaser
of certain property of his debtor, which is already
under mortgage to"', another, and such other has,
previous to the decree and sale, commenced a suit
on his mortgage-bond (although such suit has not
proceeded to a decree), such judgment-creditor
purchasing pendente lite only obtains the right and
interest of the mortgagor in such property^v'z.,
the equity of redemption — and docs not acquire the
property free from the incumbrance created by th&
debtor. Lala Kali Prosad v. Buli Sixgh

I. L. R. 4 Calc. 789 : 3 C. L. R. 396

23.

Applicability of

the doctrine to a Court sale in execution of a decree —
Code of Civil Procedure, 1S59, ss. 240, 270, 271—
Effect of a decree obtained by an attaching creditor
in a suit against successful intervenon or claim-
ants. In 1872 the plaintiff obtained a money-
decree against two brothers, Q and A'. In execution
of that decree, he attached their one-half sjiare
in certain fields in 1874. The attachment was
removed at the instance of two claimants, S and B.
In 1875 the plaintiff sued the claimants, and ob-
tained a decree in his favour m 1878. Meanw bile in
December 1874, after the plaintiff's attachement had
been removed, one V obtained a decree against one
of the brothers, P. In 1876, while the plaintiff's
suit against S and B was pending, P's right, title,
and interest in the one-halt share of the fields
belonging to himself and K was sold in execution of
F's decree, and purchased by the defendant. In
1881 the plaintiff again attached the one-half share
belonging to the two brothers under his decree of
1872. Thereupon the defendant, relying on his pur-
chase of 1876, applied for the removal of the attach-
ment. It was removed from P's one-fourth share,
and maintained on A"s share, which was in due
course sold. The plaintiff now sued to establish
his riaht to sell P's one-fourth share under his decree
of 1872 -.—Held, that the doctrine of lis pendens
did not apply to this case; that the defendant,
though he purchased P's share during the pendency
of the plaintiff's suit of 1875, was not bound by the
decree made in that suit— first because, as an auc-
tion-purchaser at a Court sale in execution of a
decree, he derived title, not from P, but by opera-
tion of law ; secondly because P was not the person
against whom the decree was made in the suit of
1875 ; and thirdlv, because P was not represented
in that suit bv the plaintiff simply because the
plaintiff sought to establish his right to attach and
sell the property as P's property. Ali Shah v
Husain Bakh.^h, I. L. R. 1 All. 5b^, followed.

Lalu MrLJi Thakar v. Kashibai

L li. R. 10 Bom. 400

24^ Presentation in

Court of aicard— Assignment pending such pro-

( 7639 )

DIGEST OF CASES.

( 7640 )

LIS PENDENS— cowid. ,

■ceedings. P and his partners mortgaged certain
immoveable property to plaintiff on the 11th Oct-
ober 1869. They had then no title to the property,
but they subsequently acquired one by purchase on
iihe 29th June 1871. On plaintiff demanding that
P and hispartners should make good the contract of
mortgage and of the interest they had acquired, the
matter was referred to arbitrators, who, on the 26th
December 1873, made an award empowering plaint-
iff to sell the mortgaged property in satisfaction of
his debt. The award was presented in Court by
plaintiff on the 23rd January 1874, and was filed by
the Court on the 23rd February 1874. Meanwhile
on the 14th February 1874, the property was attach-
ed in execution of a money-decree obtained by a
creditor of P and his partners against them. On
the 15th April 1874 it was sold by auction and pur-
chased by defendant. In a suit brought by plaintiff
to recover possession of the property, both the lower
Courts rejected his claim, on the ground that P and
his partners had no right to the property when they
mortgaged it to plaintiff -.—Held, that the presenta-
tion in Court of the award obtained by plaintiff was
equivalent to the presentation of a plaint for the
specific performance of the contract of mortgage,
and the proceedings consequent thereon constituted
-a lis pendens, during which a mere money-decree -
holder could not, by any proceedings which he might
take, defeat the object of plaintiff's application to
the Court to file his award. Pran.iivan Govar-
DHANDAS V. Baju . . I. L. R. 4 Bom. 34

25. Mortgage by

executors — Suit on mortgage — Administration suit
* — Writ of fi-fa — Sheriff's sale— Sale in execution
of decree. In a suit by the representatives oi P D
against his brother .4' 2), and after A D"s death
against his executors, it was found that there was
over R 1,32,400 due to the plaintiff from the estate
of the deceased ; and on the 29th of August 1806 the
executors were ordered to pay this sum into Court.
The executors disobeyed, and on the 24th of Decem-
ber 1866 a \vrit of fi-fa was issued from the High
Court, in execution of which certain property belong-
ing to the estate of A D was sold to the defendants
on the 18th of July 1867. Previously, however, on
the 12th of October 1866, the executors had mort-
gaged the same property to the plaintiff, who
brought a suit on his mortgage on the 10th of June
1867. On the 28th of August 1867 the present
defendants were made parties to that suit, and in
their written statement they alleged that they had
been improperly made parties, and claimed a title
superior to that of the plaintiff. That suit was dis-
missed with costs as against the present defendants
on the ground that they were improperly added ;
but a decree for sale was given against the executors,
in execution of which the mortgaged property was
sold to the plaintiff. In a subsequent suit brought
by the plaintiff for possession : — Held, that the de-
fendants were entitled to redeem, and were not
affected by the suit of 1867 as a lis pendens. Chun-

DER NaTH MuLLICK V. NiLAKANT BaNERJEE

I. li. R. 8 Calc. 690

26. — Sale in execution

^of decree — Prior attachment. On the 29th June

LIS PENDENS

ild.

1876 the plaintiff obtained a money-decree by co'
sent against R, the father-in-law of the defendan
On the 24th of July 1876 the plaintiff attached
house apparently belonging to R. On the 12t
October 1876 the defendant sued R for maintenani
and alleged that the house in question was the pr
perty of her deceased husband and R, and si
claimed the right to continue to live in it. On tl
10th of November 1876, and during the pendem
of the defendant's suit against R, the house w;
sold under the plaintiff's decree against R, and t.
plaintiff himself became the purchaser. On tl
20th of June 1877 the defendant obtained a deer
against R in terms of the prayer of her plaint. (,
the 27th of August 1879 the plaintiff brought the pil
sent suit to eject the defendant from the house .!
Held, that what the plaintiff bought from R was .,
right, title, and interest in the house, which bei
subject to the decree in the defendant's pendi
suit, the plaintiff's purchase was likewise subjel
to the same, and the circumstance that the plaint|
had placed a prior attachment on the house ma
no difference. The plaintiff therefore could n
eject the defendant during her lifetime. Parv.a
V. IviSANSiNQ . . I. L. R. 6 Bom. 5(

27.

Sale pending (■

peal — Decree reversed — Right of judgment-debt
S, having obtained a decree against M and anoth ,
brought to sale and purchased M 's property pendi;
appeal. The decree having been reversed : — Hi,
that M was entitled to the restoration of his p •
perty, and not merely to the proceeds of the s;
thereof. Sadasiva v. Mutttj Sabapathi Chett
I. L. R. 5 Mad, U

See Lati Koer v. Sobadra Koer

I. L. R. 3 Cale. 7t

28. '^Perpetual /«!«

— Cultivation of waste land. A decree-holder. v6
has obtained possession of land in suit pending p
appeal, cannot grant a perpetual lease thereof wh|i
will be binding on his opponent in the event of r
decree being reversed. Gajapati Radhiica Pa'
Mahadevi Guru v. Gajapati Radhamam Ma|
DEVI Guru . . . I. L. R. 7 Mad.

29. - ■ — Former decre(^

partition — No return to commission — Mortgage^
share — Purchase hy a stranger of portion of
lands included in the decree— Suit by him for p&
tion—Res judicata. A and B were the joint owrra
in equal shares of certain property. In 186j|o
mortgaged his share to A under a mortgage-d d
drawn up in the English form. Later on, in 1> '.
A brought a suit against B for partition, amp
1870 obtained a decree appointing a commissionepl
partition and directing the partition. No return M
made to this commission, and no actual partij>n
come to. In 1873 A obtained a decree for ano*
count and for payment, or in default for sale of^
property. In 1878 J5's share was put up for (W
and purchased by C, and C was put into posses?n.
In 1881 C brought a suit against A for partitioi]
Held, that the decree obtained by A in 1873 pujn
end to .B's right to redeem unless he paid[»

7641

DIGEST OF CASES.

jIS PENDENS— con^<f.

mount found duo against him, and therefore, at the
ime of the sale to C, iJ's right to redeem had ceased
u exist, and the property was no longer subject to
artition under the decree of 1870, and therefore
he partition asked for under the suit of 1881 could
ot be granted. Kirty Chundee Mittek v. Anath
[ath Dey

I. L. R. 10 Calc. 97 : 13 C. L. R. 249

30. Mortgage exe-

uied during pendency of maintenance suit in which
ecree is made charging property mortgaged —
VoTw/er of Property Act (IV of 1SS2), s 52.
\'here a member of a Hindu family, during the pen-
ency of a suit for maintenance which resulted in a
' cree charging the house in suit, together with other
loperty with the maintenance claimed, mortgaged
ae house in suit to the plaintiff: — Held, that he was
ntitled so to do, and that the validity of the mort-
age was not afiected by the doctrine of lis pendens.
iIanika Gramani v. Ellappa Chetti

I. L. R. 19 Mad. 271

31,

Purchaser at sale

I execution of decree — Attachment of property
M ante litem. Where the defendant in an eject-
lent action had bought the village in question at a
lie in execution of a decree obtained by the mort-
igee against the mortgagors thereof, it appeared
|iat prior to his purchase the plaintiff 's vendor had
led to establish against the parties to that decree
is title to the village, and had subsequently ob-
[lined a decree in his favour : — Held, that the de-
,ndant bought pendente lite, and was bound by the
;cree so obtained. That result could not be
roided by sho\ving that the mortgagee decree-hold-
' had attached the village prior to the suit by the
'aintiff's vendor. Moti Lal v. Karab-ul-din
i I. L. R. 25 Calc. 179

L. R. 24 I. A. 170
1 C. W. N. 639

Decri

ge — Sale of mortgaged land pending proceedings
I execution of decree. On the 22nd August 1882,
and K mortgaged certain land to the plaintiff by
1 unregistered mortgage. On the 17th May 1884,
' alone mortgaged the same land to the defendant.
his mortgage was duly registt^red. Subseciuently
I the date of the defendant's mortgage, the plaintiff
led Y and K on his mortgage, and on 26th August
i84 he got a decree for the sale of the mortgaged
operty. On 1st November 1884. he appUed for
;ecution of his decree, and in August 1885 the
j:ecution sale took place and the property was sold
one D, who was the plaintiff's nominee. Mean-
liile, however, and pending the plaintiff's execu-
)n proceedings, Y and K, on the 14th March 1885,
Id the property to the defendant by a registered
«d of sale. The plaintiff now sued the defendant
f possession -.—Held, (i) that the sale to the
fendant_ on the 14th March 1885, pending
e plaintiff's execution-proceedings, was a sale
ndente lite and void as against the plaintiff, (ii)
[at the plaintiff, as purchaser at the Court's
le lu August 1885, took the property subject

LIS PENDENS— coH/rf.

j to the defendant's mortgage of Y's share to tne
defendant in 1884, but free from the effect of the
subsequeiit sale by Y and K to the defendant,
(iii) As this was a suit for possession, and a.s F's
share had been mortgaged to the defendant with
possession, the plaintiff was only entitled to
joint possession of the property with tlic defend-
ant. He could file a separate suit to redeem rlefend-
ant. Shivjiram Sahebram Makwadi ?•. Waman
Narayan Joshi . . I. L. R. 22 Bom. 939

33. Purchase by

, puisne mortgagee at sale in execution of decree of pro-
perty with several mortgages on it — Purchases before
and during mortgagee's suit and after decree therein
how affected by if. The plaintiff in this suit had
succeeded to four, out of five, mortgages subsequent
to his own, which had been executed before a decree
obtained by a mortgagee. This decree had been
purchased by the first defendant, who also bought
, the property at the execution-sale. The plaintiff
had also succeeded to several mortgages executed

pending the suit in which the decree was made :

Held, that a distinction must be made in respect of
whether the mortgages so transferred to the plaintiff
had been executed before or after the brino-jnT
of the above suit. As regards the mortgages
executed before it, the plaintiff, not having been
a party to that suit, was entitled to redeem the
first defendant, who was purchaser of the decree.
As regards the mortgages executed after that
suit was brought, the plaintiff was bound by
the decree, and his interest in the mortgages,
i transferred pendente lite, passed to the purchaser.
On the other hand, persons who have taken
transfers of property subject to a mortgage can-
not be bound by proceedings in subsequent suit
between the prior mortgagee and the mortgagor, to
which they have not been made parties. Tme.s
Chunder Sircar v. Zabcr FATnrA

I. Ii. R. 18 Calc. 164
Ii. R. 17 I. A. 201

34.

Suit rfsiilling in

\ proceedings unexpected from its nature and the
relief sought — Possibility of appeal — Compromise
of suit — Boif$ fide jmrchctier without notice —
Estoppel. The plaintiffs in execution of decree
against tlie estate of the deceased husband of ^4, at-
tached among others certain properties as to which
A put in a petition of objections on 11th July 1872,
' claiming them as her own by right of purchase from
her husband in lieu of her dower, and her claim was
alU)wed and the projjerties released from attachment
on 20th December 1872. Subsequently in May 1873,
.4 mortgaged the properties to R. An appeal \^a3
I referred (but whether before or after the mortgage
! to R was not clear) against the order of 28th Decern
j ber 1872, and the appeal was, on .30th Jlay 1874,
settled by a compromise between the plaintiffs and
A,hy which among other conditions time was granted
to .4 to pay off the decree, and a twelvc-anua share
I of the properties claimed was relea.sed from attach-
I ment, the attachment being continued against the
I other 4 annas share ; the order of the Court was

( 7643 )

DIGEST OF CASES.

( 7644 )

lilS PENDENS— conM

simply that " the case be struck off." The de-
cree not being satisfied, the plaintiffs took out
execution, and the properties were put up for
sale and purchased by the plaintiffs on 27th
November 1882. Subsequently in execution of the
decree i? held against ^1, the properties were again
put up for sale and purchased by R on 14th Novem-
ber 1 8S4. In a suit against E and A for declaration
of the plaintiff's title and for possession of the pro-
perties -.—Held, that the order of the Court and the
•compromise in the claim suit were not such proceed-
ings as from nature of the suit and the rehef prayed
i? could have expected would result, and that he was
therefore not bound by them as a purchaser pendente
.lite. Kailash Chandra Ghose v. Fid Cliand Johari,
S B, L. R. 474, and Kasscetnunnissa Bihee v.
Nilratna Rose, I. L. R. S Cole. 79, referred to.
SemUe : Neither the possibility of an appeal
nor the consent decree were proceedings by which R
as a purchaser pendente lite would be bound. Held,
also, that under the circumstances E had a good title
as bond fide mortgagee and auction-purchaser with-
out notice, and that the plaintiffs were estopped
from questioning that title. Poresh Nath Mid-herji
V. Anath Nath Deb. 1. L. R. 9 Calc. 265, followed.
KiSHORY MoHUN RoY V. Maromed Mu.taff.vr
HossEiN . . . I. L. R. 18 Calc. 188
35. — Auction-par-
chaser bound hy lis pendens. K brought a suit
against P to recover posses^^ion of certain land.
Whilst that suit was pending in the Court of first
instance, the right, title, and interest of P in the
land were sold in execution of a decree against him at
the instance of a judgment-creditor and purchased
by G. Subsequent to 6"s purcliase, X's suit was
dismissed by the Court of first instance ; but K
appealed, and the Appellate Court reversed the
decree of the Court below and gave judgment in TCs,
favour. G, who was not made a party to the ap-
peal, thereupon instituted a suit against K to eject
him and obtain possession of the land : — Held, that
the doctrine of lis pendens applied, and that G was
not entitled to maintain the suit. Held, further,
that it made no difference to the appUcation of the
doctrine that the decree of the Court of first instance
was in favour of G's. predecessor in title, for that
decree was open to appeal, and the decree in the
suit was that passed by the Appellate Court, the
proceedings in the Appeal Court being merely a
continuation of those in the suit ; and as G's pur-
chase was made whilst that suit was pending. G
was still bound by the decree of the Appellate
Court. Anundo MoyeeDoseev. Phonendro Chunder
Moolcerjee, 14 .Moo. I. A. 101 : S B. L. R. 129 :
16 W. R. P. C. 19, distinguished. GoniND Chunder
Roy v. Gurtj Churn Kurmokar

I. L. R. 15 Calc. 94

36.

' ' Contentious

■suit ''—Transfer of Property Act {IV of 1SS2), s. 52.
A, on the 9th September 1883, sold certain im-
moveable property to S for R9S-12 by means of a
conveyance which was not registered. On the 29th
September 1883 S instituted a suit against A on

lilS PEWDENS— C9w<<?.

that conveyance to obtain possession of the pro
perty. On the 5th October 1883, when that sui
was pending, but before the summons was serve
on A, A, by a duly registered conveyance, sold th
same property to R for R 198-8. In the suit file
by S, A filed a written statement, but did nc
further contest it, and S obtained a decree and gc
possession of the property. In a suit subsequent!
brought by R to obtain possession of the propert
from S upon the ground that his reigi.sterc
conveyance was entitled to priority over the unr
gistered document of S, it was ' contended tb
R's purchase having been made whilst 5f's suit w,
pendina, his title could not prevail against that ■'
S ■' — Held, that the doctrine of lis pendens did r'
apply to the facts of the case, as at the time of i
purchase there was no contentious suit or procee!
ing in existence, the summons in .S's suit nothaviil
been then served. Radhasam Mohapattra ali
Madun Mohun Mohapattra v. Sibu Panda

I. L. R. 15 Calc. 6'

37.

Transfer of P,

perty Act {IV of 18S2). s. 52—'' Active prosecution
of suit, meaning of . Where the plaintiffs purchas!
a certain property after the decision but before t
drawing up of the decree of the lower Court wbij
declared the seller's title to the property and t
decree was subsequently appealed against
reversed by the Appellate Court -.—Held, that t
doctrine of lis piendem applied, as the plaintiffs pi
chased during tlie active prosecution of a si
within the meaning of s. 52 of the Transfer of P
perty Act, although no apj)eal was actually pendi
at the time when the purchase was made. Kasi
munnissa Bihee v. Nilratna Rose, I. L. R. S Calc.
referred to. Gobind Chandra Roy v. Guru Ch
Kurmokar, I. L. R. 15 Calc. 94. foUowed. Ind[
jeet Koer v. Pootee Begum, 19 W. R. 197 ; Clmn".
Koomar Lahooree v. Gopee Kri^to Gossamee, 20 .
R. 204 ; KisUory Mohun Roy v. Mahomed Majair
Hossein, I. L. R. IS Calc. ISS ,- and MotiLal.
Karrabuldin, I. L. R. 25 Calc. 179, relied on. H' ,
further, that the law of lis pendens in Englancs
different from that prevailing in this country, wh i
is founded on the fact that it would bo impossib
to bring any suit to a successfid termination^
alienations pendente lite were permitted to prev
Deng Nath Ghose v. Shama Bibee

4 C. W. N. 7

Transfer of

perty Act, 18S2, s. 52 — Transfer pendente H
Time at which a suit becomes " contentions." h <
that a suit becomes a " contentious suit" wi|n
the meaning of s. 52 of the Transfer of Prop kV
Act, 1882, at the time when the summons is serjd
on the defendant. Radhasyam Ilahapittrav. 'M
Panda, I. L. R. 15 Calc. 647, and Abhoy v. Ai\t-
malai, I. L. R. 12 Mad. ISO, followed. PARSoiM
Saran v. Sanehi Lal . I. L. R. 21 All. 'fo

39. Transfer ?^

pending partition suit in which there was a dis'!^
as to shares — Transfer of Property Act {IV of If'pf
s. 52. After the institution of a partition I *

( 7645 )

DIGEST OF CASES.

( 7646 )

,IS PENDENS— co«/(Z.

lember of a joint Hindu family consisting of six
rothersanda mother, but before the summonses
ere served, one of the sons transferred his share of
le property to a third party, who was added as a
,3feadaiit to the suit. At the time of the transfer
L>th the tran.^feror and transferee had notice of
le partition suit on a question having been raised
i to what share of the property the transferee was
ititled to: — Held, that, inasmuch as both the
, ansferor and transferee had notice of the parti-
on suit at the time of the transfer, and as there
as I. dispute about the shares, s. 52 of the
ransfer of Property Act applied to the case.

jDOKNDRA ChUNDER GhOSE V. FUT.KUMARI DaSSI

I I. L. R. 27 Calc. 77

i JOOEN'DRA ChCTNDER GhOSE V. GaNEXDRA NaTH

:rcar . . . . 4 C. W. N. 254

Mortgage — Pur-

(ise, uithout notice, of land declared liable for
origage-debt by a decree. In 1864 A mortgaged
iir shops, to the plaintiff's father. Subsequently,
wever, .4's father brought a suit, and obtained"^a
;cree declaring that two of these shops were not
eluded in the mortgage. In 1869 the plaintiff's
ther (the mortgagee) sued A upon the mortgage,
id prayed in the same suit that certain other land
|)t included in the mortgage-deed might be held
(ible for his debts in lieu of the two shops. He
otained a decree on the 29th November 1869,
hich ordered R 1,291 to be paid " on the liability
, the land in the plaint mentioned." No steps
iere taken by the plaintiff to execute this decree
jr seven years. On the 18th August 1876 A sold to
i'.e defendant, by a registered deed of sale, a
Drtion of the land so declared liable, and the de-
•ndant entered into possession without notice of
[e plaintiff's decree. The plaintiif now sued to
litain a declaration that the land was liable to be
|Idin execution of his decree of 1869. Both the
|wer Courts dismissed his suit. On appeal to the
figh Court -.—Held, that the defendant was a pur-
laserfor value without notice of the plaintifl'.s
screes and took the land unaffected by the plaint-
's equitable lien created by the decree. There
JM no li-i -pendens. The litis contestatio had ceased.
le decree, which was a final one, had terminated
e litigation between the parties, and now only
jmained to be executed. There was, moreover,
I this case the further circumstance that nothing
■a been done in the suit after the decree and
jinng the seven years which elapsed between it
I'd the defendant's purchase in 1876. Venka-
m GoviND V. Maruti I. L. B. 12 Bom. 217

i4L

Transfer of Pro-

\rty Act (17 of 1SS2), s. 52~Wken a suit becomes
ntetUioiLs—Priority of registered mortgage. As
on as the fiUng of the plaint is brought to the
'tice of the defendant, the proceeding becomes
ntentious, and any ahenation subsequent to
at 13 subject to the doctrine of lis pendens. A
'"[tSage was executed on 25th June and was rsgis-
red. On the same day, a prior mortgagee filed a

LIS PENDENS -co «<(/.

suit against the mortgagors on an unregistered
mortgage of the same land : he obtained a decree
and attached the mortgage property : — Held, that
the registered mortgagee was entitled to priority,
and his mortgage was not affected by the rule of lis
pendens. Abbox" v. Annamalai

I. li. B. 12 Mad. 180

42.

Transfer of Pro-

jjerty Act (IV of 1SS2), s. 52— Partition, suit fo
Decree by consent. Pending a suit for partition of
land, etc., two of the parties to the suit sold part of
the land in question to a stranger who was not
brought on to the record. After the execution of
the sale deed, the parties to the suit entered into a
compromise, and a decree was passed by consent
accordingly. In a suit by the purchaser for pos-
session ojf the land sold to him -.—Held, that the pur-
chaser was not bound by the decree passed by
consent. Vi'Thinadayyan v. Subr\ma.:^yk

I. L. B. 12 Mad. 439
Transfer of Pro-

43.

perty Act, s. 52 — Lease granted during partition suit.
S. 52 of the Transfer of Property Act does not ap-
ply to a case where the shares of the parties and
their right to those shares are not disputed. The
mode in which the lands should be allotted amongst
the ascertained shares does not aflect the right to
any specific property. Khan Ar,i v. Pestonji
Edctljee Gajdab . . . 1 C. "W. N. 62
44. . Transfer of Pro-

perty Act, s. 52 — Mortgage. Of the three owners
of certain properties, two executed a mortgage of
their interest in December 1872. In 1879 a creditor
of the three obtained a money-decree against them,
and in execution attached, inter alia, the properties
subject to the mortgage. In July 1880 the mort-
gagee intervened in execution, and an order having
been made directing that the property be sold sub-
ject to his mortgage lien, filed a suit upon his mort-
gage. The property was brought to sale in execu-
tion of the money-decree in November 1880. and
the defendant became the purchaser. The mort-
gagee obtained a decree in the following February,
and the mortgaged property was sold in execution
in March 1884 and was purchased by one who as-
signed his interest to t.he plaintiff : — Held, that the
defendant's purchase was subject to the doctrine
of lis pendens. KtJ.VHi U.mah v. Amed

I. Ii. R. 14 Mad. 491
45. ^ Transfer of Pro-
perty Act, ss. 52, 53 — Contribution, suit for. Two
properties, A and B, belonging to different owners,
were mortgaged under a joint bond for the same
debt. The mortgagee put his bond in suit, and,
having obtained a decree, caused property A to be
sold, the proceeds of which proved more than suffi-
cient to satisfy the whole mortgage -debt. Before
such sale, however, X had, in execution of a simple
money-decree, acquired a share in property A.
X accordingly sued for contribution from property
B, in that, so far as his share in property A went, he
had satisfied the mortgage-debt, and ultimately

( 7647 )

DIGEST OF CASES.

( 7648 )

LIS PENDENS— cor.«d.

obtained a decree in his favour ; but during the
pendency of that litigation proyjerty B had been
transferred to Y : — Held, that Y must take the
property subject to X's right to contribution from
it in respect of the loss of his share in propertj' A.
Baldeo Sahai v. Baij Nath

I. L. B. 13 All. 371

46.

Transfer of Fro-

perty Act {IV of 1882), s. 52 — Lease cf property in
respect of which a decree for sale has been made under
s. 88. Held, that a lease of property made by a
judgment-debtor against whom a decree for sale
had been made under s. 88 of the Transfer of Pro-
perty Act for sale of that property came within
the purview of s. 52 of the Transfer of Property
Act. Thaktjr Prasad v. Gaya Sahtt

I. L. B. 20 All. 349

47.

Involuntary

alienation — Execution-proceedings under mortgage-
decree — Revenue Sale Law [Act XI of lS-59), ss. 13,
54 — Sale for arrears of Government revenue. A
decree was obtained for the sale of a mortgaged
property, being a share of an estate, on the 31st
August 1889. In execution of that decree, the
property was purchased by the plaintifis on the
11th December 1891, and the sale was confirmed
on the 5th March 1892. Meanwhile, pending the
execution- proceedings, a larger share of the estate,
including the share mortgaged, was purchased by
the defendants at a revenue sale on the 30th Sep-
tember 1891, which sale was confirmed on the 11th
March 1892. In a suit instituted by tlie plaintiffs
for the possession of the property purchased by
them, the defendants having questioned the vali-
dity of the mortgage decree and contended that
they were not bound by it, not being parties there-
to, and having in the alternative claimed the right
to redeem the mortgaged property •.—Held, that the
defendants were bound by the mortgage-decree, the
principle of lis pendens applying to the case. Hae
Shankar Prasad Singh v. Shew Gotund Shaw
I. L. B. 26 Calc. 966
4 C. W. N. 317

48. Execution of

decree. — Sale in cxecxdion pending an appeal in a
suit under s. 283 of the Code of Civil Procedure —
Title of auction-purchaser subject to the result of
the appeal. J brought a suit, under s. 283 of the
Code of Civil Procedure, for a declaration that cer-
tain property was the property of the plaintiff, and
not liable to be sold in execution of a decree against
a third person. Her suit was dismissed by the
Court of first instance. She thereupon appealed ;
but, while her appeal was pending, the decree-
holder caused the property, the subject of the suit^
to be sold, and it was purchased by 8 P, who subse-
quently transferred a portion of it to J L. On
appeal J's claim was decreed, and her title to the
property established. Some considerable time
after the passing of the decree in appeal J brought
a suit against J L and S P for recovery of the
property purchased, as above mentioned, by S P
at auction sale : — Held, that the dectrine of lis

LIS PENDENS— ro7»^rf.

pendens applied, and that the title taken by JS
was subject to the result of J's appeal, which \s
pending at the time when the property was brou t
to sale. Chunder Nath Mullick v. Nihkt
Bauer jee, I. L. R. 8 Calc. h90 ; Raj Kishen Mooke >
V. Radha Madhab Holdar, 21 W. R.C.R. 3.)
Ram Narain Singh v. Mahtab Bihi, I. L. R. 2 {
828 ; and Rajah Enayat Hossain v. Girdharee II,
12 Moo. I. A. 366, referred to. Sukhdeo Pra [>
V. Jamna (1900) . . I. L B. 23 All. )

Transfer of i).

49.

perty Ad (IV of 1882), ss.
sale — Decree assigned before the passing of an o>r
absolute — Appeal — Assignee not made a parti,l<y
appeal until after expiry of limitation — Civil ").
cedure Code, s. 372. A decree under s. 88 of e
Transfer of Property Act, 1882, being only a dcie
nisi and not a final decree, the suit in which su' a
decree is passed does not terminate until an o:3r
absolute is made under s. 89. Where, theref 3,
such a decree is assigned before any order abso ;e
is made, the assignee takes subject to all theliii-
lities resulting from the application of the (p-
trine of lis pendens. Such an assignee, for exame,
may properly be made a party, under s. ;}72 ofie
Code of Civil Procedure, to an appeal from le
decree preferred against his assignors, and it is ot
competent to him to raise any defence, such a
plea of limitation, to the appeal, which could ot
be raised by his assignors. Chunni Lal v. Aue
Ali Khan (1901) . . I. L. B. 23 AU. 31

50.

Court-sale — .c

lion-purchaser — Applicability' of the rule ojlis
pendens to a purchaser at an execution sale, be
rule of lis pendens applies to purchasers at exiu-
tion sales. Byeamji Jamsetji v. Chfnilai. 1l-
chand (1902) . . I. L. B. 27 Bom. ^6

51. " Contenlm

suit" — Transfer of Property Act {IV of 188). t.
52 — Limitation — Mortgage — Surplus sale-procee —
Limitation Act {XV of 1877), Sch. II, Art.
Where suits were brought for the purpose of
vering moneys due upon mortgage bonds by
of the immoveable properties mortgaged tl
no question as to the right to those pro]"
having been involved, and the defendants no
pearing to contest the claim, ex parte decree-
passed against them : — Held, that the suits
not ' ' contentious ' ' within the meaning of , >'-
of the Transfer of Property Act, and the docina
of lis pendens did not apply. On the 17th J 'Ch
1899 the plaintiff brought a suit to enforce a i|rt-
gage bond, dated 17th September 1886, contajing
a stipulation that the debt would be repaid wfiin
six months : — Held, that in reckoning the perii of
six months the date on which the bond was e "U-
ted must be excluded and the limitation sItJd
run from the 17th March 1887. A claim b|tlie
mortgagee for the satisfaction of the mortigo
debt out of the sale-proceeds of the mortgaged'to-
perty sold by the Collector for arrears of Gorn-
ment revenue is governed by Art. 132, Sch. II ctli*
Limitation Act, and not by Art. 120. Kcala

( 7649 )

DIGEST OF CASES.

( 76S0 )

■IS PENDENS -ro«YrL

ant Sen v. Abdul Barhat, I. L. R. 27 Calc. ISO,
iferred to. Upendra Chandra Singh v. Mohbi
AL Marwari (1904) . I. li. R. 31 Calc 745

i 52. — Mortgrige decree

-Execution proceedings — Purchase at a Court sale
xder another decree — Pendency of the execution
oceedings. On the 6th February 1883, R obtained
decree on a mortgage against B. While exe-
ition proceedings under his decree were pending,
money-decree was obtained against B by another
(rson, and at a Court sale held in execution there-
, thf property was purchased by S on the 18th
ecember 1886. S obtained his certificate of sale
,1 the 20th December 1887, and obtained posses-
'•n of the property on the same day. S subse-
. atly sold the property to the defendants, who
.'me into possession of the property. The execu-
jm proceedings under the mortgage-decree termi-
ted in the sale of the property, which was pur-
ased by R. R obtained his certificate of sale
' the 5th September 1887, and sold the property
' the plaintiffs. The plaintiffs sued to recover
ssession from the defendants : — Held, that under
3 law as it stood before the Transfer of Property
t came into force, as the purchase on which the
fendants relied took place during the pendency
• the proceedings in execution of the mortgage-
;ree, it was affected by lis pendens and was there-
i'e void as against the plaintiffs, who were pur-
•isers under the mortgage-decree. Shivjiram
.Woman, I. L. R. 22 Bom. 930, followed. Samal
'Babaji (1904) . I. L. R. 28 Bom. 361

53. Decree on mort'

<;'e against minors — Sale in execution — Reversal
t decree in appeal — Attachment in execution of a
tney decree — Title of the purchaser in execution of
i\decree on the mortgage — Stay of execution. Held,
1 .t the doctrine of lis pendens does not defeat a
I'-chaser under a decree or order for sale vhen the
Ipendens is the very suit in which that decree or
<,«r is passed. The doctrine rests on the principle
l^.t the law does not allow litigant parties to give
1| others pending the litigation rights over the
l.pt-rty in dispute so as to prejudice the opposite
I ty. Bellamy v. Sabine, 1 De O. a> J. -566 ;
hram v. Bu-ckley, 3 Ch. 4S-1, referred to. Shivlal

?4UVAN V. SH.iMBHUPRASAD (1905)

I. Ii. R. 29 Bom. 4S5

Purchase from

*|' during administration suit — Rival mortgagees
-\ riorily of title — Purchaser from Receiver in ad-
^yistralion suit — Purchaser at sales in execution of
"itooffe decree— Transfer to benamidar, pendente
i^~Transfer of Property Act [IV of 1882), 5.>\ ••5:.^.
■51 When the estate of a deceased person is under
ajunistration by the Court or out of Court, a pur-
C)»r from a residuary legatee or heir buys sub-
J<| to any disposition, which has been or iaiay be
Ojlo of the deceased 's estate in due course of ad-
tt istration : the right of the residuary legatee or
^ bemg only to share in the ultimate residue,
tl r k^^^ remain for final distribution after all
liab'lities of the estate, including the expenses
VOL. III.

LIS PENDENS— confi.

of administration, have been satisfied. As be-
tween the appellant and respondent, who \^ere
rival mortgagees of the property of a Muham-
madan family, the Judicial Committee, reversing
the decision of the High Court, upheld the title
of the appellant, who represented a purchaser at
sales by the Receiver of the High Court in a
suit for administration of the estate of one of
the mortgagors, as entitled to priority over that
of the respondent, who claimed through a pur*
chaser in execution of the mortgage decree at
sales, which took place pending the administration
suit, in one case after the order for sale by the Court
and in another after the actual sale by the Receiver
in that suit. Tiie shares of all the heirs to the mort-
gagor's estate were, pending the suit for adminis-
tration, purchased at private sales by the appel-
lant in the name of, and were transferred to, a
benamidar, who was made a party defendant in the
appellant's mortgage suit and a party plaintiil in
the administration suit : — Held, that the appellant
being, in execution of the decree in the mortgage
suit, alone represented on each side of the record,
could not rely on the sales effected in such circum-
stances in support of his title, or derive any advan-
tage therefrom. Hei,d, also [without deciding whe-
ther such transfers could be avoided under s. 62
or 53 of the Transfer of Property Act (IV of 1S82)
in a properly constituted suit], that the appellant
must be treated as the transferee for value of the
entire equity of redemption, and that the respon-
dent, therefore, had not made out any title to
redeem the afipellant's mortgage, notwithstanding
the subsequent sales in his mortgage suit under
which he claimed. Chatteri'ut Singh v. M^fa-
RAJ Bahadur (1005) . I, L. R. 32 Calc. 108
s.c 9 C. W. N. 225
L. R. S2 I. A. 1

55.

Lis pevdcvs'

doctrine of — Sale for arrears of revenue pending
proceedings in mortgage suit — Suit for recovery of
possession by lessor against third party, tchen main-
tainable. The doctrine of lis pende.is applies to
transfers of immoveable property in invitum.
Radha Madhah Holdar v. Monohur Mukerjee, I. L.
R. 15 Calc. 7-')(l ; Prcm Chand Pal v. Purnimu Dasi,
I. L. R. lo Calc. 54') ; Raj Ki^hen Mookerjfe v.
Radha Madhuh Holdar, 21 IF. /?. -340, relied on.
R\j KiSHORE AwASTi I'. .Jaru Nath Basak (1905)
11 C. W. N. 828

56.

pendcti-s-

Contest betioeen prior purchiser under a second m.yrt-
gage and subsequent purchaser under a first mortgage
— Secand mortgage executed after institution of suit
on first mortgage, but before summons served — ' ' Can-
teiUious" suit — Act No. IV of 1SS2 (Transfer of
Propertt) .Act), s. 52. The plaintiff was purchaser
in execution of a decree based on a first mortgage of
the property in suit. The defendant was in pos-
session as a prior purchaser iu execution of a decree
on a second mortgage of the same property, passed
in a suit to which the first mortgagee was not made
a party. The second mortgage was executed after

11 L

( 7651 )

DIGEST OF CASES.

( 7652 )

LIS PENDENS— co/;<^/.

the institution of the suit on the first mortgage
but before the summons had been served : — Held,
that the doctrine of Us pendens applied, and that
the plaiutili had the better title. \Vbere a suit is
contentious in its origin and nature it is not neces-
sary that the summons should have been served in
the suit in order to make it a " contentious ' ' one
within the meaning of s. 52 of the Transfer of Pro-
perty Act (IV of 1882), and render the doctrine of
lis pendens applicable. Irrespective of the doctrine
of lis pendens it appeared from the circumstances
of the case that the defendant was cognizant of
first mortgage of the decree made on the basis of it
and of the sale proceedings which took place in exe-
cution of the decree. Faiyaz Htjsain Khan v.
Trag Narain (1007)

I. L. R. 29 All. 339 : L. R. 34 I. A. 102

57.

Lis pendens—

Transfer of Property Act {IV of 1882), s. 52— Civil
Procedure Code {Act XIV of 1882)— Contentious
suit — Active prosecution — Non-service of the sum-
mons on the defendant— Transfer of property by the
defendant. S. 52 of the Transfer of Property Act
(IV of 1882) imposes two conditions— (a) the
existence of a contentious suit and (b) that the
transfer should be during its active prosecution in
a Court of the kind described in the section. Sem-
ble : Every real suit (as distinguished from a col-
lusive one) to which the Civil Procedure Code (Act
XIV of 18!s2) applies, is prima facie contentious.
According to the Civil Procedure Code the essentials
of a suit are — (i) opposing parties, (ii) a subject in
dispute, (iii) a cause of action and (iv) a demand
of rehef. If there is no inaction on the plaintifi's
part the suit would be contentious, notwithstand-
ing the fact that the service of the summons could
not be etTected on the defendant. A suit cannot
be said to be non-contentious merely because the
decree therein is passed ex parte. Annamalai
Ohettiar v. Malayandi Appya Nail; I. L. R. 29 Mad.
426, followed. Upendra Chandra Singh v. Mohri
Lai Marwari, I. L. K. SI Calc. 74'), not followed.
The defendant having transferred his property to
another during the active prosecuticm of the suit
but before the service of the summons : — Held,
that the doctrine of lis pendens apphed. Radha-
syam Mohapatlra v. Sihu Panda, I. L. R. 15 Calc.
647, Abboy v. Annamalai. I. L. R. 12 Mad.
ISO ; Parsotam Saran v. Sonehi Lai, I. L. R. 21 All.
408 ; Upendra Chandra Singh v. Mohri Lai Mar-
wari, I. L. R. 31 Calc. 745, not followed. Jogendra
Chunder Chose v. F>d Knmari Dassi, I. L. R. 27
Calc. 77, and Annamalai Chettiar v. Malayandi
Appaija Naik, I. L. R. 29 Mad. 426, approved. Per
Beaman, J. — I am clearly of opinion that from the
moment a suit of any sort whatever, except only
collusive suits, is filed, it is potentially contentious,
so called friendly suits, I think, certainly are. For
the purpose ttien of conditioning the rule of lis
pendens, 1 would say that the filine; of any, but a
coUu«ive suit, is enough. Krishntappa v. Shivappa
(IPOT) . . I. L R. 31 Bom. 393

LIS PENDENS— roJicW.

58. Lis pendtn-

Suit for specific performance of contract of sai-
Consent decree — Conditional decree — Sale in ezt ■
tion of moneij decree pendinj execution — Dec ,
splitting vp of. Plaintiff brought a suit on the ii
January 1902 against defendants Nos. 3 and 4ir
specific performance of a contract for conveyae
of a property and obtained a consent decree on c
29th September by which they agreed tliatii
default of re-payment of the earnest money wi'n
three months the plaintilT would be at liberty o-
have a conveyance executed by them or by le
Court on their behalf. Defendants Nos. 3 an 4
having failed to make the refund, plaintiff l.k
out execution on the 4th of February 1003 amot
a hnhala executed by defendant No. 4 alone, it
of ("ourt, on the 30th November l!)03 in respecif
his share of the property together with cerin
(jther rights either incidental thereto or inde n-
dent of it. Meanwhile on the Kith September J3
defendant No. 2 purchased the interests of dtn-
dants Nos. 3, 4 and 5 in execution of a money e«
cree : — Held, that tlie defendant No. 2'3 pure se
took place at a time when the property washe
suh]^ct oi a, lis pendens, and must be postponi to
the plaintifi's pmrchase under the kobnla exec^l
by defendant No. 4 in satisfaction of plaintiff' :e-
cree. A decree-holder is entitled to split up hi e-
cree and to enter up satisfaction against he
judgment-debtor who satisfies him in respec of
his liability under the decree and to execu it
against the judgment-debtor who does not dcso,
provided there is nothing to make this arrange nt
inequitable. Mati Lal Pal ?;. Pre(j Lall ^ka

(1908) .... 13C. w.w.ae

LIST OF CANDIDATES AT MUN'I-
PAL ELECTION.

See Calcutta Municipal Consolidaos
Act, s. 31.
I. L. R. 19 Gale. 192, 195 note,^«

LIST OF VOTERS AT ELECTION.

See Calcutta Municipal Coksol; ■
Act, s. 31 . I. L. R. 22 Ca-

LOAN.

See Contract— Conditions Pbece -^
I. L. R.14Bomkw

See Evidence Act, s. 76.

8 C. W. Hi25

/See Hindu Law — i.^.

Guardian . I. L. R. 26 BoiriSa

Joint Family — Debts, and
Family Business 7 C. W. I^
See Limitation Act (XV of 1877), ■ '■"
20, ScH. II, Arts. 59, 60. j

I. L. R. 29 APya

See Limitation Act (XV of 1877 Sch-

II, Arts. 12, 49, 115, 145. -

I. L. R. 31 Cal ol«

( 7653

DIGEST OF CASES.

{ 7654 )

DAN — concld.

See Limitation Act, 1877, Sch. II, Art.

59 . I. L. E. 13 Bom. 338

See Limitation- Act, 1877. Sch. II, Art.

145 . . 8 C. W. H". 500

See Mortgage . 8 C. W. N. 569

See Public Document.

I. L. R. 31 Calc. 284

on security of land^

J See B.ANK OF Bengal . 7 B. L. R. 653
. repayment of, by instalments —

See Transfer of Property Act, s. 83.

I. L. R. 24 AU. 461

to executor —

See ExECTuoE . . 7 C. W. N". 104

:) AN" REGISTER.

See PuBUc Document.

I. Ii. R. 31 Calc. 284
:)CAL BOARD.

notice by President of—
See Penal Code, s. 188.

I, L. R. 20 Mad. 1

I'CAL BOARDS ACT (MAD. V OF

884).

See MvDKAS Local Boards Act.

s. 156 (1), (3) — No Twtice necessary in

' - jor injunction wider s. 156 [1) as amended —
h'cd of limitation prescribed in s. 156 {3) not ap-
pable to svch suit<. S. 156 (1) of the Madras
Lai Boards Act V of 1884, as amended, does not
a'ly to suits brought for an injunction and the
nice prescribed therein is not necessary in the
fi, of such suits. Mahainahojjudhjiaya Ranga-
e/liorv. The Municipal Council of Kamhakonam,
I.:. R. 29 Mad. 539, followed. The period of
liillation prescribed in 3. 156 [3) applies only
inie case of suits falling within s, 156 (J)
ai| suits for injunction being outside the
Kje of s. 156 (i), do not for purposes of
Uijation fall within s. 156 (3). The amendment
of 156 in 1897 was not intended to alter the
laipreviously laid down in decided cases. Govinda
P:j.ah;. Taluk Board, Kumbakhnam (1908)

I I. Ii. R. 32 Mad. 371

L13AL GOVERNMEN-T.

order of, effect of—

'SVe Bench of Magistrate s

I. L. R. 16 Mad. 410
I. Ii. R. 20 Calc. 870

See Jury— ^UHY in Sessions Cases.

I. L. R. 23 Mad. 632
See Magistrates, jurisdiction of —
Power of M.a.gistrates.

16 W. R. Cr. 79
See Small Cause Court, Mofussil—
Jurisdiction — Municipal Tax.

I. L. R. Mad. 78

liOCAIi GOVERNMENT— ro«/r/.

power of-

See Bombay Survey and Settlement
Act (I of 1865), ss. 35, 48.

I. L. R. 1 Bom. 352
See Governor of Bombay in Council.

8 Bom. A, C. 195
I. Ii. R. 8 Bom. 264
See Governor of Madras in Corxf tl.

2 Mad. 439

See High Court, jurisdiction of —

IVLvDRAS — Criminal . 5 Mad. 277

See Magistrate, jurisdicticn cf —
Powers of Magistrates. t

16 W. R. Cr. 79
I. L. R. 9 Mad. 431

— rules made by —
See Rules made under Acts.
See Ports Acts, s. 6.

I. L. R. 17 Mad, 118 ; 397

suit against —

See North-Western Provinces and
OuDH Municipalities Act, s. 28. ^
I. L. R. 1 All. 269

1. — — — — Small Cause

Court, Mofussil — Civil Procedure Code, ss 5, 360,
Ch, XX — Insolvency jurisdiction. Under s. 360 of
the Code of Civil Procedure, the Local Govern-
ment cannot invest a Mofussil Small Cause Court
with the insolvency jurisdiction conferred on
District Courts by Ch. XX of the said Code, inas-
much as, by reason of s. 5, Ch. XX does not ex-
tend to such Courts of Small Causes. Sethc v.
Venkatarama . I. L. R. 9 Mad. 112

Notification of

Government of Bombay extending Act, (ffect of-
Scheduled Districts Act, XIV of IS: 4, ss. ■', 6.
Under s. 5 of the Scheduled Districts Act, XIV of
1874, the Local Government cannot, by extending
an Act which is of necessarily restricted application,
make its provisions applicable to an entirely new
subject-matter , — viz., the litigation of a new local
aiea. Aciordingly, whcie tl.o (jovernnieut of
Bombay issued the following notification. No. 823
of 1886. — " In exercise of the powers conferred by
8. 5 of the Scheduled Districts Act, XIV of 1874, the
Governor of Bombay in Council is pleased, with the
previous sanction of the President in Council, to
extend to the Island of Perim the whole of Act II
of 1864 of the Governor General in Council, with the
exception of ss. 2, 17, and 23. The Governor in
Council is further pleased, in exercise of the powers
conferred by s. 6 of the Scheduled Districts Act,
XIV of 1874, and by any other enactment, to direct
that the Resident at Aden shall be Sessions Judge
and Court of Session for the Island of Perim, and
shall exercise the same jurisdiction and powers in
respect of the administration of civil and criminal
justice in the said island, and in respect of the trial
of persons committed for trial by the Court of
Session for offences committed in the said island as

11 L 2

( 7055 )

DIGEST OF CASKS.

( 7ti56 )

IiOCAl. GOVERTSTMEN T— concW.

are vested in him in Aden by the said Act :" — Held,
that the provisions of the Aden Act II of 1864,
which (as appears from the preamble) deals with
the litigation of Aden alone, could not be extended
to Perim, without enlarging the subject-matter of
the Act. Held, also, that the appointment of the
Political Resident at Aden as a Sessions Judge and
Court of Session for the Island of Perim made
under cl. {a) of s. 6 of the Scheduled Districts Act,
XIV of 1874, wa^ valid and effectual with reference
only to the provisions of the Criminal Procedure
Code, and that that portion of the notification
which regulates the exercise by the Resident of his
powers with reference to Act II of 1864 should be
• treated as surplusage. Qfeen-Empress v. Man-
gal Tekchand . . I. L. K. 10 Bom. 274

LOCAL INQUIRY.

See Local Investigation.
See Decree — Construction of Decree
— Mesne Profits.

I. L. R. 8 Calc. 178
L. R. 8 I. A. 197
See Possession — Order op Criminal
Court as to — Local Inquiry.

criminal —

See Possession, Order op Criminal
Court as to — Local inquiry.

LOCAL INVESTIGATION.

See Ameen.

See Appeait— Orders . 7 W. R. 425
W. R. 1864, 363

See Appellate Court — Exercise of

Powers in various Cases — Special '

Cises . . . 6 B. L. R. 677

15 W. R. 423

18W. R. 452

See Chur Lands . 6 B. L. R. 677 j

13 Moo. I. A. 607 I

See Complaint — Dismissal of Com- ;

plaint — Power of, and Prelimina- !

ries ffo, Dismissal . 6 C. "W. N. 295 !

^S'ee Local Inquiry.

See Magistrate, jurisdiction of —
General Jurisdiction.

I. L. R. 19 All. 302
3 C. W. N. 607 ,
See Special or Second Appeal — ,
Other Errors of Law or Procedure |
— Local Investigations. \

See Transfer of Criminal Cases— ;
Ground for Transfer. |

I. L. R. 21 Calc. 920
I. L. R. 19 All. 302

1. Object of local investiga-
tions— Evidence not obtainable in Court. Local
investigations are had recourse to not so much for
tiie purpose of collecting evidence which can be

LOCAL INVESTIGATION— co>(fc?.

taken in Court as to obtain evidence wliich fror
its pecuhar nature can only be obtained on the spol
Bhowanee Dutt Singh v. Beer Singh

2 N. W. 18

2. Application for inspectio
or local investigation — Civil Procedure Cod'
1S59, s. ISO. An appHcation under s. ISO, Act VI)
of 1859, should be made at the hearing of the sui
and not previously. Mackinnon, Mackenzie
Co. V. Bhugram Doss . Bourke O. C. 24

3. Discretion of Court— loc

inquirij. It is within the discretion of a Judge
order or refuse a local inquiry. Rash Behari
Singh v. Saheb Roy . . . 12 W. R. '

Graham v. Lopez . . .1 W, R. 1^

4. Reference to a Commission!

— Civil Procedure Code, s. 392. The local inves'
gation referred to in Civil Procedure Code, s. 39
presupposes the existence on the record of inci
pendent evidence which requires to be elucidate
and that section does not authorize a Court
delegate to a Commissioner the trial of any mater
issue which it is bound to try. Sangili v. Mook
I. L. R. 16 Mad. 3'

5. Povp-er of Court to dire,

when parties do not ask for it — Rermndor'
for heal investigation. In a suit for land, whJ
the question was as to whether the land lay witli
the boundaries of the plaintiffs' or the defendat'
land, the Court of first instance suggested to p
parties that the proper mode of determining p
case was in the first instance to hold a local invel-
gation, and that such local investigation shouldle
applied for by one or other of the parties. Bh*
parties resolutely refused to make such applicafc'i,
and the Court thereupon dealt with the (»
upon the materials before it and passed a deciJ.
Upon appeal, the lower Appellate Court reman d
the case for the purpose of a local investiga
being held at the cost of the plaintiff in the
instance. Held, that, inasmuch as neither of
parties desired to have a local investigation.
Court was wrong in remanding the case, and

it was bound to decide it upon the evidei.ce k
it. Jatinga Valley Tea Comp.vny v. ChekaisA
Company . . . I. L. R. 12 Calcl*

6. - Notice of local investigaiJn

—Civil Procedure Code, 1S59, s. ISO. Though ff^
was no express direction to that effect in s. 180, | 'J*
VIII of 1859, yet it was necessary to give noti|i»
parties of the time when a local investig.-<jn
ordered by the Court was to be lield. K:^
MONEE Debia v. Eglinton . 12 W. B.'"''*

7 . Ofiaeer to hold local inq^

—Civil Procedure Code, 1859, s. ISO. S. ]80,\ct
VIII of 1859, made it imperative on a Cour; W
employ in the first instance the regular oflScer c*^ne
Court to hold a local incjuiry. Ram Po^l^'^g
Doo V. Nil Kanto Dhur . . 8 W . •

Byjnath Singh v. Indurjeet Koer ^^^

( 7657 )

DIGEST OF CASES.

( 7f>58 )

OCAL INVESTIGATION— ro;./,/.

Bahadoor Ally v. Doomnun Singh

7 W. R. 27

Instances of improper appointments are given in
OOROA Doss Chatterjee v. Gooroo Churn
ISTBEE . . 6 W. K,, Act X, 81

id Teeluckdharee Roy v. Moorleedur Roy
13 W. R. 285

8. Duty of Judge to conduct

cal investigation— Ci'r/Z Procedure Code,
:S-J, 8. 392. S. 39'2, Civil Procedure Code, clearly
iiowsthat where a Judge can conveniently conduct'

local investication in ^^erson, he should do so.

iWARKANATH SaEDAR t'. PrOSUXNO KumAR HaJR A

I 1 C. W. N. 682

;;.:. Question of disputed bound-

Jy — Possession before date of suit. Held, that
■local inquiry ought not to have been ordered in
lis case, where the question to be decided was
[e of disputed boundary, which turned chiefly on
issession before the date of suit, and that the
.bordinate Judge would have been justified in dis-
i^arding the Ameen's report, and trying the appeal
the recorded evidence. Kalee Doss
BAEJEE V. KhETTRO Pal SiNGH RoY

17 W. R. 472

9e« IswAR Chakdra Das v. Jtjgal Kishore
XCKERBUTTY . . 4 B. L. R. Ap, 33

; 17 W. R. 473 note

.0. Ascertainment of fact of

] irriage. In a case where the issue is whether
t ) persons bear the relation of man and wiie, a
illge is not justified in going himself to the village
mve the parties live, in order to make inquiries
tjOng their neighbours ; much less in holding such
1 il investigation on a Sunday and without due

ice to one of the parties. Jubhoo Sahoo v.

isoDA KooER ... 17 W. R. 230

1. Power of Judge to order

I al investigation by Subordinate Judge.

udge has no power to order a Subordinate Judge

Jse judgment is before him on appeal, to go

«|l inspect the locality and make a report. Such

s'/port cannot be treated as evidence one way or

other. If the Judge was of opinion that it

necessary to take further evidence, he ought

jiave proceeded as directed by ss. 354 and 355,
VIII of 1859, and it was competent to him,

jieceesary, to order an Ameen or any suitable

•son to make a local investigation under s. 180.
•«: a Judge from whose decision an appeal is
I ding is the most unsuitable person to make

'jti investigation. Roy Sooltan Bahadoor v.
1 .00 KooER . . . . 7 "W. R. 300

M- Incomplete inquiry owing

tJAches of plaintiff. In a suit for wasilat,
'jre the Ameen's inquiry was not completed on
ai)unt of the laches of the plaintiff :—//eW (Glo-
yl «/., dissenting), that there had been no heal
"I'stigation at all, and that the defendant had
Jl ipportunity of producing his evidence. Kalee
^ s Mttter v. Debnarain Deb . 13 W. R. 412

LOCAL INVESTIGATION— ro«7/y.

13. - Duty of Ameen to return

report to Court ordering investigation.
An appeal having been made from an order relating
to the execution of a decree, the High Court dircctetl
that an Ameen should deliver over possession and
make a map of the property so dehvered over, and
a map showing the boundaries laid down in the
decree. The Ameen went to the spot and made a
map. That map was not transmitted to the Court ;
but in consequence of certain proceedings in the
Subordinate Judge's Court, a .';econd Ameen was
sent and a second map made. These proceedings
were wholly disregarded by the High Court, which
proceeded upon the first Ameen's map and report,
against which no excejjtion was filed in the High
Court. Lalljee Sahoo v. Rajexder Pertab
Sahee 14^ W. R. 418

14.

Investigation by ameen-

Power of District Judge to interfere with order for
—Circidar Orders 41 of 1866 and 25 of 1870. In
a suit for the possession of land, the boundaries of
which were disputed, the Subordinate Judge
ordered an ameen to make a local investigation,
and reported his order to the District Judge,
who refused to allow the investigation to proceed.
Held, that this was a case coming within the provi-
sions of Circular Order No. 41, dated the 2nd
October 1866, which authorizes local investigations
by ameens when it is necessary to ascertain by
measurement disputed areas of land ; and that the
District Judge had no authority to stay the
investigation. Per Prinsep, J. — All that the Dis-
trict Judge was entitled to do under Circular
Order No. 25, dated 25th August 1870, was to
express his opinion as to tlio propriety or other-
wise of the Subordinate Judge's order. Nirod
Krishno Roy v. Woo.-manath Mookerjee

I. L. R. 4 Calc. 718 : 3 C. L. R. 234

15.

Non-attendance at local

investigation — Procedure order setting aside a
judgment by default. Ss. 114 and 180 are to be
read together. The words ' ' and persons not
attending upon the requisition of the commis-
sioner " in s. 180 are general and apply to
parties making default, whether required to give
evidence or not. The words " like disadvantages "
referred to in s. 180 mean that in the case of the
non-attendance of a defendant the local investiga-
tion is to be proceeded with ex parte ; and in the
case of the non-atknidanco of a plaintiff, the suit
is to be dismissed with costs. In case of judgment
by default for non-appearance before a commis-
sioner appointed under s. 180, the proper course
is to apply to the judge for an order to set aside
the judgment, and if that apphcation be refused, to
appeal again.-t the order of refusal. The Judge's
order should contain a distinct direction to the
commissioner to proceed ex parte in the event of
the non-attendance of the plaintiff. Eshan Chuu-
DKR ChCCKEBBUTTY f. SOORJO LaLL GOSSAIN

1 Ind. Jur. O. S. 3
W. R. F. B. 1 : Marsh. 13G

( 7659 )

DIGEST OF CASES.

( 7660 )

liOCAIi INVESTIQATIOK-— co«cZ7.

16.

— Failure of party
In a case in which

to appear on local inquiry.
plaintiff sued to recover some land, and in which
defendant denied the power of plaintiff 's vendor to
sell the land claimed or a part of it, a local inquiry
was ordered to ascertain the boundaries of the land
in dispute. Judgment of the High Court — uphold-
ing the decision of the lower Court, which dismissed
the suit because plaintiff failed to appear or take
proper steps before the ameen at the local investiga-
tion, and because he omitted to give formal proof
of his deed of purchase — confirmed. Mahomeb
Tuque Chowdhey v. Judonath Jha

16 W. R. P. C. 28

17. Powers of Magistrate in

holding local investigation— CoZfeci/ore of
evidence by Magistrate on local inquiry — Evidence.
Power of Magistrates to hold local investigations
and the nature of such investigations discussed.
Whenever it is desirable for a Magistrate to view the
place at which an occurrence, the subject-matter of
a judicial investigation before him, has taken place,
he should be careful to confine himself to such a
view of the place as to enable him to understand
the evidence placed before him, and .should take
care that no information reaches him with reference
to the occurrence which he has to investigate beyond
what he acquires by that view, and if the place of
the occurrence be in dispute, he would be wise in
postponing his visit till all the evidence has been
recorded, if under such circumstance he feels dis-
posed to visit it at all. But where a local enquiry by
a Magistrate takes the form of an investigation into
the occurrence on the site of the occurrence instead
of in his oa^ti Court, and he takes evidence on the
spot, such evidence should not be recorded unless it
is protected by all the safeguards by which evidence
on which a Judge may act is protected by law.
Hari Kishoee Mn'EA v. Abdul Baki Miah

I. L. E. 21 Cale. 920

18. Court proceeding to hear

an appeal without waiting for return to a
commission for local investigation issued
at the request of a party — Civil Procedure
Code, s. ■'J84 — Substantial error in procedure. The
intention of the Code of Civil Procedure is that, when
a Court deems it necessary, on the application of a
party or otherwise, that a commission for local inves-
tigation should be issued, the return to that commis-
sion should be before the Court before it proceeds to
hear and determine the case. Madbo Singh v.
Kashi Singh . I. L. R. 16 All. 342

LOCAL SELF-GOVERNMENT ACT
(BENG. Ill OF 1885).

ss. 78, 139—

See Ultea Vires . 11 C. W. N, 1099
LOCAL USAGE.
See Custom.
LOCUS PENITENTI^.

See Criminal Procedure Code, s. 110.

I. L. B. 31 Calc. 783

LODGING-HOUSE-KEEPER.

See Hotel-keeper and Guest.

3 Bom. O. C. IJ

See N.-W. P. and Oude Lodging Hor

Act, s. 5 [2) . I. L. R. 20 All. 5J

LODGINGS LET TO PROSTITUTE.

See Landlord and Tenant— Tenani
FOR Immoral Purpose.

9 B. L. R. Ap.
LORD'S DAY ACT.

tee Holiday.

1. Application ot— British Bui i

— Abkari rules. The Lord's Day Act (29 Car. ,
c. 7) does not extend to criminal cases in Bri^i
Burma. A was convicted and fined for the br* i
of an abkari rule. Held, that the conviction coi
not be supported, on the ground that the abkari le
had not the force of law. Abraham v. Queen
1 B. L. R. A. Cr. 17 : 10 W. E. JO

2. Moulmein. ' e

Lord's Day Act does not apply to Moulmi.
Geasemann v. Gardner . 3 W. R. Rec. Re 2

Nor to Madras.

See Anonymous Case . . 4 Mad. Ap. 2

3. ^ Application of Act to Mad-s

Presidency — Arrest of Mahofnedan debtor m
Sunday. A Mahomedan debtor was arrested wi in
the original jurisdiction of the High Court on a in-
day. Upon application made, Innes, J., dire.'d
his discharge, on the ground that the arrest, ha ig
been made upon a Sunday, was illegal. Ijn
appeal, — Held, by Hollo way, J., that the pen-
sions of the Lord 's Day Act (29 Car. II, c. 7) dtot
apply in this country. That even if the sub.sn-
tive provisions of the statute were applicabli it
did not follow that s. C would be. That i-he
statute dealt with substantive law, it wou be
applicable to all the Queen's subjects or none nd
that there ^vere ample reasons for saying r»'as
impossible to apply it to all. By KernajV.,
that as between natives of India, the Lord's»ay
Act does not apply. Param Shook Do t'-
Rasheed-ood-Dowlah 7 Mad.^S

4.. Criminal pr -'•

ings taken on Sunday, legality of. Crirainai
ceedings taken by a Magistrate are not nect-.-
illegal by reason of having been taken on a Su '.» •
In the mattr of the petition of Sinclair

' eN.-wi77

LOSS OF SERVICE.

See Tort . . . 13 C. W. Ki«6

LOST GRANT, PRESUMPTION O:

*See Prescription — Easements— ■-»£■
rally — Claim to Prescription

15 W. 1 312

iw. r-J30

See Prescription— EASEMEXTS-"tiBl

and AIR . 3B. LR. 0.:18

eB.L. R. 85: 12B.L. HOe

( 7661 )

DIGEST OF CASES.

( 7662 )

OTTERY.

See Company — Formation and Regis-
tration . . I. L. B. 20 Mad. 68
I Foreign Liottery — Advertisement —

l-wspapers—Publi-iher — Penal Code (XLV of
\<}2), ■'>■ 29-} A. The expression " in any such

tery " in para. 2 of s. 294A of the Penal Code
!LV of I860) means " any lottery not authorized

Government," and includes a foreign lottery.
'■e word "publisher" in the above paragraph in-
. ides both the person ^^'ho sends a proposal as well
, the proprietor of a newspaper ^vho prints the
■ )posal as an advertisement. The proprietor of a
.' mbay newspaper who published an advertisement
iihis paper relating to a Melbourne lottery was
J ordingly held to be punishable under s. 294A of
V Penal Code. Queen- Empress v. Mancher.ji
;' vasji Shapurji . I. L. R. 10 Bom 97

DTTERY ACT (V OF 1844).

See Promissory Note . 9 B. L. R. 441

],)ttery:office

charge of keeping —

-See Act XXVII OF 1870.

6 B. L. R. Ap. 98

I'TTERY TICKETS.

See Gambling . 12 W. R. Cr. 34

I NACY.

See Evidence — Civil Cases — Hearsay

EviDENCE . . 6 B. L. R. 509

13 Moo. I. A. 519

See Hindu Law — Inheritance — Di-
vesting OF, Exclusion from, and
P'orfeiture of. Inheritance — Insani-
ty.

See Hindu Law — Succession.

I. L. R. 28 All. 247
•See Insanity.
See Lunacy Act.

-See Lunatic . I. L. R.' 31 Calc. 210
See Mahomedan Law — Inheritance.

2 B. L.R. A. C. 306

LNACY ACT (XXXV OF 1858).
-See Lunacy.
See Lunatic.

Poiver o' Court to control
9^iian appointed under Ad. A District Judge,
Wi| has appointed a guardian for a lunatic under
AijXXXV of 18.58, has jurisdiction to make an
«rr requiring such guardian to obtain his
Peiisaion before marrying the lunatic. Chella-
TEtMALr. Ammayappa Mudaliar (IflOS)

I. L. B. 32 Mad. 253

— ; SB. 3, 9, 10 — Court bound to enquire

exuitence of property, if denied. A petition
J^r -■^ct XXXV of 185S to declare a person a
If. and to appoint a proper manager and

LUNACY ACT (XXXV OF 1858)— con-Id.

BS. 3, 9, 10— concld.

guardian, should not be dismi.ssed without enquiry
because the counter-petitioner denies the existence
of any property belonging to the lunatic. The
existence of such property is necessary as a pre-
requisite to the Court tating action and must be
ascertained by enquiry, whc'-e the existence of such
is alleged by the petitioner and denied hy tin- ether
party. Lakshumi Ammal v. Seek angath amal
(1905) . . . I. L. R. 29 Mad. 310

s. 23—

I. L. R. 31 Calc. 210

-See Lunatic
LUNAR MONTH.

-See Marine Insurance.

I. L. R. 36 Calc. 516
LUNATIC.

-See Arrest — CmL Arrest.

I. L. R. 22 Bom. 961

-See CrviL Procedure Code, 1SS2, s. 4ii.3.

10 C. W. N. 719

I. L. R. 33 Calc. 1094

-See Insanity.

-See Letters Patent, High Court,
North-Western Provinces, cl. 12.

I. L. R. 4 AU. 159
-See Lunacy.
-See Lunacy Act.

-See Practice I. L. R. 33 Calc. 1094
-See Principal and Agent— Autitokitv
OF Agents . I. L. R. 15 Bom. 177
-See Registration Act, s. 35.

I. L. R. 1 All. 465
L. R. 4 I. A. 166

committee of, under Act XXXV

of 1858—

-See Hindu Law — Inheritance — Di-
vesting of. Exclusion fro.m, and
Forfeiture of. Inheritance — In-
sanity . I. L. R. 22 Calc. 864

estate of—

-Interest to support
13 B. L. R. Ap. 14

-See Right of Suit-
right

— suit against—

-See Oude Land Revenue Ait. ss. 175

AND 176 . I. L. R. 22 Calc. 729

L. R. 22 L A. 90

Jurisdiction- .4 f/ A' A' AT of

1858, s. '2. A lunatic had been for a number of
years in involuntary inntiiumcnt in Bhowanipore
Lunatic Asylum, within the jurisdiction of the
Court of the Judge of the 24-Pergnnnahs, and was
possessed of property out of that jurisdiction. On
an application to the Judge to appoint a manager
of his property : — Held, that, as the lunatic was
residing within the jurisdiction cf the Court of

( 7663 )

DIGEST OF CASES.

( 7664 )

LUNATIC— co«^7.

the 24-Pergunnahs, the Judge could, under Act
XXXV of 1858, s. 2, inquire into the fact of his
insanity and order a manager to be appointed to the
estate. Dttrant v. Chakdranath Chatterjee

2 B. L. R. A. C. 246

s.c. Kallonas v. Collector op Backergtjnge

11 W. R. 109

2. -

-Act

Married daughter of lunatic

of 1S5S, s. 13 — Maintenance —
The ■word " family " in

XXXV
"Family," meaning of.

s. 13 of Act XXXV of 1858 (which provides for the
maintenance of the lunatic and his family) does not
include a married daughter of the lunatic living with
her husband apart from her father, but includes only
persons living with the lunatic as members of his
famUy, and dependent on him for their mainten-
ance. Chundkabati Koeri v. Monji Lal

I. L. R. 23 Gale. 512

3. Lunatic resident in mofussil

—Act XXXV of 185:<, ss. 10, is, and 22— Residence
— Guardian of lunatic 's person — Position of guar-
dian towards local Court appointing him — Tem-
porary suspension of guardian — Jurisdiction of
District Judge — Irregularity — Superintendence of
High Court— Civil Procedure Code, 1882, s. 622.
Although Act XXXV of 1858 contains no express
provisions as to the place of residence of a lunatic
governed by the Act, it contemplates that he shall
reside within the jurisdiction of the Court that has
found him to be a lunatic. The guardian of such
a lunatic 's person is, in matters connected with the
guardianship, subordinate to the District Court
which appointed him. A guardian, having obtained
leave from the District Judge to take the lunatic out
of the jurisdiction for a specified time, was, at the
expiration of that time, ordered to return with the
lunatic to his residence within the local jurisdiction.
He failed to comply with the order. Without fur-
ther notice, the District Judge, by certain orders
which he gave, by letter and telegram, through the
manager of the lunatic 's estate, suspended the guar-
dian from his office, and directed him to make over
the custody of the lunatic to the manager. The
guardian made over the custody accordingly and
then applied to the High Court, under s. 622 of the
Code of Civil Procedure, to set aside those orders and
restore the custody of the lunatic to him at Calcutta
(outside the jurisdiction of the Court to which the
lunatic was subject). The High Court declined to
interfere, even though the orders were made irre-
gularly ; because no case for its intervention had
been made out, and because the lunatic ought not
to be removed out of the local jurisdiction. In the
1,1 alter of Basharat Ali Chowdhry

I. L. R. 24 Cale. 133

4. ■ — - Application under Act — Act

XXXV of 1858, .s.'.% 2 and 3. Applications made
under sections of the Lunacy Act, XXX\' of 1858,
must be verified. Btjsrut Ally Chowdhry v.
EsHAN Chunder Roy . . 7 W. R. 267

5. Act XXXV of

1S5S, Procedure on inquiry under. The applica-
tion for an inquiry under the Lunacy Act, XXXV

i LUNATIC-co»</.

of 1858, should be verified, and proper ri

j should be given to the alleged lunatic or his fr v

in case of necessity. In examining him, the gn c

care and delicacy should be observed, and every u

likely to cause unnecessary pain or exciteme i

him avoided. If also he be a person of a!

I exempted from personal appearance in Cou i

ordinary civil proceedings, his personal appea ni

I in Court in an inquiry into the state of his iti

I should be dispensed with. Jtjgunnath &ii

Deo v. Burra Lall Opendronath Sahee Di
j 5 W. R. M: 5

! 6. Procedure— ^dXZZF 0/5

i s. -f — Examination of hinntic. S. 5, Act XX

i of 1858, never intended that an alleged lunatic, u]

I be .summoned into a public Court, as a flitne; ii

I subjected to examination as a witness by the Me

: of the person on whose petition the iuii

! Avas instituted. In the maiter of tie pditi.

I JtrOGERNATH . . . . 7 W, EJ4

7. Appenranct

lunatic — Act XXXV of 18-58. A person a;g(
to be a lunatic, though not fourd so undc A(
XXXV of 1 858, may appear either by vakeeiJ ;
person. Uma Sundari Dasi v. Ramji Haldi
I. L. R. 7 Calc. 242 : 9 C. L. . 1

See Bind a BUN Chunder
Kali Dass Sircar .
8.

KuR Chowdij.'
W. R. 186426

— Non-appe 'ini
of lunatic after service of summons — Act XX i' t
1858. A .Judge, instead of striking off a C8 bi
cause an alleged insane person does not appea ift(
service of notice, ought in such event to prr cui
the inquiry contemplated by Act XXXV oi 85!
MooRUT KooNWAR V. Dhurm Narain Singh i
2 W. R. :»8.

9. — ^ Act XX ■ '

1858 — Procedun: necessary before appointii
dian. A Court cannot, under Act XXX\'
make over charge of the property and pe; •<
alleged lunatic to a guardian until it has v.
him to be of unsound mind and incapable
aging his affairs. Bholanath Mooki
Grish Mohinee Debia . . 15 W.

10. Unsoundness of min

XXXV of 1858, s. 1— Unsound mind. T!
" unsound mind " in s. 1 of Act XXXV >
comprehends imbecility, whether congenial '
ing from old age, as well as lunacy or mental
tion resulting from disease. In re (
Beramji Lilaoovala . I. Ii. R. 7 B — ^

11. Unsoundness of i""^

Proof of— /Id ZX A' F of 1858—Incapo'/
manage affairs — Ascertainment of state (
by medical examimition. Unsoundness <
taken by itself is not sufficient to bring :i
within the meaning of the term " lunatic
in Act XXXV of 1858, unless it would incri
him from managing his affairs ; nor, on ti
hand, will a person who is incapable of man.'
affairs be a lunatic, unless that incapacity
duced by unsoundness of mind. For the \^V"^''

( 7665 )

DIGEST OK CASES.

( 7666 )

.TJNATIC—conld.

i this Act; the observation of the patient by medi-
<al witnesses, between the date of petition and the
late of actual hearing, would be sufficient for as-
lortaioing his state of mind at the time of inquiry.
;nEBJt4N V. ScHORN . . 24 W. R. 124

12.

Witnesses, evi-

'ence of. The bare assertion of witnesses un-
apported by any details of the causes, the course
nd the treatment of the malady, ought not be
ccepted as satisfactory proof of insanity. Kala
I'HAin) Ghose v. Shoolochuna Dossia

22 W. R- 38
18. - Inquiry as to fact of lunacy

-Power of judicial officer — Evidence. On ,in in-
). iry as to the fact of lunacy under Act XXXV
^f 1858, any finding as to the actual time when the
|inacy began is beyond the jurisdiction of the judi-
ial officer making the inquiry. Where the fact of
jinacy was admitted, and the question was the date
t which it commenced, the evidence of a planter in
'Le neighbourhood, as to common report for years
'i the village as to the lunacy, having been admitted
'y the lower Court, the Judicial Committee refused
b reject it. BoDHXARAYAN Singh u. Umkao Singh.
JJODHYA Peksad Singh v. Umeao Singh
I 6 B. L. K. 509 : 15 W. B. P. C. 1

I 13 Moo. I. A. 519

14.

Act XXXV of

16.

LUNATIC— fo//^(/.

rests on the Collector or the person who makes the
allegation. Busharutoolla v. Collector op

Tipperah 3 W. R. 475

17. Act XXXV of

1858 — Inquiry as to state of lunatic's mind.
Where a District Judge in a matter of lunacy under
Act XXXV of 1858 stopped the case at a prehmi-
nary stage of the proceedings, on a report of the me-
dical officer that the alleged lunatic was labouring
under a considerable aberration of mind as a conse-
quence of the habit of ganja-smoking, which the
Judge considered to be a form of intoxication not
amounting to lunacy : — Held, that the Judge ought
to have gone on to hold the inquiry and satisfied
himself whether the alleged lunatic was capable of
managing his affairs irrespective of the cause of
such incapacity, Hxjrsahoy Lall r. Bhtttun
Singh 20 W. R. 55

jS.5S, a. 8. The inquiry as to alleged lunacy under
let XXXV of 1858 must be made by the Judge, and
jot by a subordinate Court, to which the Judge can
inly issue a commission under s. 8 of the enactment,
ji cases where the alleged lunatic resides at a dis-
Imce more than fifty miles from the place where the
ourt is held. Ordinarily to such inquiries the
• embers of the family are proper and sufficient
arties, but other persons interested may, under
)ecial circumstances, be permitted to take part.

AM PuBOTJSS Singh v. Amir Ali

3 A gra Mis. 3

15. Act XXXV of

^58. An inquiry into the state of mind of an
jleged lunatic should not be instituted under Aot
iXXV of 1858 without its being c learly shown to
jie Court that there is ground for supposing that
|ie person is of unsound mind. Gunga Pershad
jiHoo f. WooMA KoowER . 18 W. R. 326

Act XXXV of

'5S— Procedure — Power of High Court under Act
■Onvs probandi. Before a Judge can, on the appU-
tion of a Collector under Act XXXV of 1858, order
le property of an aUeged lunatic to be placed in
iMge of somebody else, he must observe the pro-
tinre laid down in that Act and pronounce the al-
?ed lunatic to be of unsound mind after institut-
g a proper inquiry into the point. The High Court
nset aside an order of the Judge made under
e Act without evidence being taken, without re-
Mding the case to the Judge, there being no ana-
gy in this respect between an ordinary civil suit
•d proceedings under this Act. The' burthen of
""^"ing an allegation as to the lunacy of any person

18.

Act XXXV of

1858 — Degree of unsoundness of mind — Manager of
lunatic, duty of. A Hindu, who had acquired
considerable assets without any ancestral property,
lived «dth one of his wives and his eldest son, who
managed the property. A younger son, who hved
apart with his mother, made an apphcation to the
High Court alleging that his father was a lundtie,
and praying that he be declared to be so, and that
a committee be appointed under Act XXXV of
1858, and that the eldest son be directed to deliver
the property to the committee. It was found on the
inquiry held imder the above Act that the alleged
lunatic had for manj' years now and then been for
short periods in such a state of mind as to render it
right to deta n him at hon e, and tl.at le now had
about him that which, when aroused by the recol-
lection of past losses or by the recurrence of family
quarrels, might produce mental derangement, but
that he was of sound mind at the dates of the above
application and of the inquiry: — Held, that the ap-
plication should be dismissed. Per Curiam : The
eldest son should give to those who would be co-
heirs with him to his father a fair opportunity of
satisfying themselves that his management is open
to no question, and that nothing is done to their
detriment. Distinction between lunacy with lucid
intervals, and a state of sound mind, subject to
occasional unsoundness arising from accidental and
temporarv causes, considered. In re Naoappa
Chetti ' . . . I. L. R. 18 Mad. 472

19. . Suit by u-ife as

next friend, alleging husband to be a hnuitic —
Husband not an adjudged luiuitic — Civil Procedure
Code {Act XIV of 1SS2), s. 462— Act XXXV of
1858. Where a wife, alleging her husband to be
of unsound mind, brought a suit as next friend, the
Court ordered an inquiry (i) as to whether the hus-
band was of unsound mind and (ii) as to whether
the suit was for his benefit. Pransikhrvm Dina-
NATH V. Bai Ladkor . I. L . R. 23 Bom. 653

20.^ Appointment of manager —

Necessity of preliminary inquiry and adjudication.
It is only when a man has been adjudged a lunatic

( 7667 )

DIGEST OF CASES.

( 766S )

LUNATIC -onhL

as the result of proceetliugs, and on inquiry held in
due course of law, that the Court obtains the autho-
rity to appoint a manager of his ^st^^^*^-^'^^^^"^i;:

BVTTY KOOEKKEE V. MOXJEE LaL . 20 W. K. 477

21. Act XXX y of

ISos', s. 25 — Application by curator bonis appointed
in Scotland. A petition was presented through
his constituted attorney by a curator boms duly
appointed in Scotland to W, a doctor in the Bombay
Army, absent from India on leave, praying for an
order authorizing the petitioner's attorney to re-
cover and dve valid receipts for certain moneys
belonsing to the said W and to reahze certain shares
and bonds also belonging to the said IF, and to
remit the proceeds according to the directions of the
petitioner as such curator^ bmis. The petitioner
stated that the said W had been duly adjudged to be
of unsound mind bv tlie Court of Session in Scot-
land, and annexed a '■ Court of Session Extract
of the " act and decree '" whereby the said curator
bonis was appointed ; but there was no evidence
that W had been found of unsound mind and
incapable of managing his affairs, or that the
curator had civen security, or that funds were
required for ^he maintenance of W. The Court
refused the order. In re Welsh

I. L. B. 8 Bom. 280

22. '^'-•t A'.YA'r of

j.$.y$ — Guardian for property of lunatic — Lunatic
trustee of a mutt. A guardian may be appointed
under Act XXXV of 185S to the property vested in a
lunatic as the head of a mutt. Sitak vma Charya
V. Kesava Chakya . L L. R. 21 Mad. 402

23. ___^ ■ Cicil Procedure

Code', 1SS2, s. 463 — Lunatic defendant — Guardian
ad litem— Act XXXV of 1S5S. A guardian ad
litem cannot be appointed under Ch. XXXI of the
Code of Civil Procedure for a lunatic defendant to
whom Act XXXV of 1S58 applies, until the defend-
ant has been adjudged a lunatic under the provi-
sions of the said Act. ' Subbaya v. Bvthaya

I, L. B. 6 Mad. 380
24. Defendant a lu-
natic, but not adjudicated a lunatic — Code of Ciril
Procedure (Act XIV of 1SS2), ss. 443, 463— Act
XXXV of 1S5S — Practice — Appointment of a
guardian nd litem bi/ the Court. Although s. 44?
of The Code of Civil Procedure (Act XIV of 1882)
read with s. 463 does not oblige a Court to appoiiit a
guardian ad litem for ^ defendant of unsound mind
except where he has been adjudged to be of unsound
iiiind under Act XXXV of 1858 ; still upon general
principles and in conformity with the practice of the
Court of Chancerv, the Court should as-^ign a guard-
ian ad litem for the defendant if it tinds. on inquiry,
that he is of unsound mind so as to be unfit to defend
the suit. Vexkatramana Rambhat r. Timapfa
Devappa . . . I. L. B. 16 Bom. 132

25. Suit— .4ct XXXV

of ISoS — Lunatic, not adjudged to be so, suing
through a next friend or defeiuling through a guardian
ud litem. The provisions of Ch. XXXI of the

LUNATIC— twjf'i.

Code of Civil Procedure are not exhaustive.
where a person is admitted or has been found t
of unsound mind, although he has not bee;:
judged to be so under Act XXXV of 1858. or I y
other law for the time beins: iu force, he should
plaintiff, be allowed to sue through his next frie ,
and the Court should appoint a guardian nd Urn-
where he is a defendant. Porter v. Porter, L. B. ]7
Ch. D. 420 ; Venkatramana Rambhat v. Tntrn^
Devappa, I. L R. 16 Bom. 132 : Tukaram Autt
Joshi v. Vithal Ja^hi, I. L. R. 13 Bom. 6S6 : ' \
Sundari Dasi v. Ramji Haldar, I. L. R. 7
242 ; and Jonagadla Subbaya v. Thatiparthi -
data Buthaya, I. L. R. 6 Mad. 3S0, refcrrtv .
Nabbf Kha^t v. Sita . . I. L. B. 20 Alji

26. — Act XXX ' f

ISoS, s. 22 — Application for permission to a!
property of lunatic — Objection by a third par:
the property dofs not belong to the lumtic, deter-
tion of, whether necessary. In an apiJicdj*
for permission to aUenate the property of a l^-
tic under Act XXXV of 1858, it is not necessarta
det^-rmine whether such property belongs to|ie
lunatic or to a third ]>arty. Dt^jesh Chf^kh
Baxerjee r. SorDAMrs-i Debi . 4 C. W. N. '"

27. . Ad x.y;:

1S5S, s. 14— Manager appointed umler the 'L
Act— Manager of joint family — AUennth
maimger. Where a person is appointed raana,
a lunatic's estate under .\ct XXXV of 1858,
only make a vahd ahenation in accordant w;:
provisions of that Act, although he may als
facto manager of the family property. A \
marri^1l woman having a lunatic husband au'i
sons was appointevl gu«dian of the lunatic^
under Act XXXV of 1858. She was also ('
manager of the family. She mortgagee! the :
property, without the sanction of the Court
quired by s. 14 of the Act:— i/eW. that the
ga^es were invalid as regards the lunatic's r
in the property ; but. as regards the interest
minors which was vested in them at the ti-
the mortgages, the property being ancesti
mortgages were binding if made for fami'v
poses! "ANrPRN-ABAi r. DrKUAPA Mahaiapa
I. L. B. 20 BoE

28. ■ ^ J'^'* A'-^'-

1S5S, ss. 15, Id, 17, IS, and 20— Hindu lumt-
ber of joint family — Joint member of the f^
family appointed guardian or mantiger of ih--
tic's estate — Liability to account — Manager c
u'ith mismanage ment. The manager of a
lunatic's estate appointed under Act ^
of 1858, who is in possession with others ot
family property, is not. in bis capacity of m
of the lunatic''s estate, bound by the provi>
s. 15 of the Act to exhibit an inventory and h
of the family property. The lunatic i* P<^^^'
no property for which the manager is hftbU^
count. It "does not make any difference if tli
ager is himself a joint owner or not. l-
provides no machinery, nor does it confer anv
upon the Court, to d^al with the joint fanii

( 7(U19 I

DIGEST OF CASEa

( TiwO )

iSATIC-coiitd.

ity or interfere in the affairs of a joint family.
J "manager is charged with mismanagement, he is
t tied to some particulars of the charges made
a inst him. In all cases of lunacy in which a
g rdian or a manager of the lunatic's estate is
a ointed by the Court under the Act, it is desinvble
ti isae a formal order or certificate of appointment.

T\1B.\KT^\L GOVANDAS V. HmALAI. iTCiniALVL

I. li. B. 20 Bom. 659

9. Ad XXXV of

1,^ — Uncertificatrd guardiun, powers of — Mana-

gtof joint Hindu famihj, potvers of — Guardian

-'lie by de facto guardian of lunatic^s share. Act

XjXV of 1858 dees not a.^ect the general provi-

si -i of Hindu law as to guardians who do not avail

ll .elves of the Act, and the managing mem-

bi';->f a joint Hindu family, one of the members of

\r h is a lunatic, may, in case of necessity, sell

niily property incliidinc tlie lunatic's share,

^li he d( e* not liold a certificate under the

\ t. Bain Ohunder Chuckcrhutfi/ v. Brojonuth

Juoonidar, I. L. R. 4 Calc. 929, followed in prin-

cii'. Court of Wards v. Kupuhnun SingJ>, 10

n . F. 3H{ : 19 W. B. i«, disapproved. Kanti

\nER COSWAMI V. Bisheswar Goswamt

L. R. 25 Calc. 585
2 C. "W. N, 241

Bcng. Act IV of

"Sanction to proceedings — Court of Wards.
I 'tion of Ihe Commissioner of the l")ivision is
ly under Bengal Act IV of 1S70 before pro-

- can be taken under Act XXXV of 1858
the estate of a lunatic under the managc-

t t^e Court of Wards. Tlie proceedings set

- null and void. Jn re Kowldas Koer

8 B. L, R. Ap, 50

' HUCKUR SURVN NaRAIN SlNGH V. COLLEC-

Sarcn . . 17 W. R. 180

Act XXXV of

9— Act XIX of 1S:3, s. 195— Court vf

pouter of. S. 9 of Act XXXV of 1858

V-^5 of Act XIX of 1873 do not render it

111 native on the Court of Wards to take charge of

thijstate of a person adjudged by a Civil Court.

-n'r Act XXV of 1858, to be of\insound mind,

rijy confer on that Court a power so to do.

ic Court of A\'ards exercise that power, the

iiiient by the Civil Court of a manager of the

'8 property, under s. 9 of Act XXXV of

is valid, Manohar Lal v. Gauri Shankar

I. L. R, 1 All. 476

/«.'

Act XXXV of

w. 2. 7, 9, 10, 23~auardian of lunatic-
legal heir " — Wife of lunatic — Mahomedan
loHShiastct. Oiw M S, a Shia Mahomedan, was
Jly adjudged a lunatic under the provisions of
IXXV of 1858. At the time of his adjudication
1^' jhad a wife, Z, who had had one child by him,
nn| hat child had died previously to M S being
»^J igfd a lunatic ; it did not, liowcver, appear that
jnejwas any reason precluding the possibiHtv of
^'•"■■^r issue of the marriage -.—Held, by Mahmood,

LUWATIC— <:o«^</,

J., that under the law applicable to the Shia sect
of Mahomedans Z was one of the " legal heirs " of
M S within the meaning of s. 10 of Act XXXV of
1858, and as such was excluded by the terms of
the proviso to tliat srctiim from being appointed
guardian of the person of licr lunatic hi;s))and. In
cases under the Lunacy Act (XXXV of 18r)8). the
High Court as a Court of Appeal will not take upon
itself the duty of deciding who may be the fittest
person to appoint as guariiian of tlie person or pro-
perty of a jjorson ailjudged a lunatic tliercunder.
That duty should rest with the Courts to which it is
entrusted by the Act. Ildd, by Knox, J., that
upon the general circumstances of the case the wife
was not a fit person to be appointed as guardian of
tl\e lunatic : sed qua-re whether she was. within
tlie meaning of s. 10 of .\ct XXXV of 1858, " the
legal heir " of the lunatic, and tlierefore statutorily
disquahfied. Fazl Rab r. Khatttn T>iri

I. L. R. 15 All. 29

33.

Act XXXV of

1S'5S. On an application for tlie appointment of ;
guardian to the estate of a lunatic umler Act XXXV
of 1858, the .ludge should only appoint a person to
take charge of the estiite of the lunatic, without
specifying of what that estate consists. Nitambini
ChOWDHRAIN v. ShASIII MuKHI CllOAVDHR aiv

4 B. L. R. Ap. 24 : 12 W. R. 518

34. Guardian —

Mortgage by de facto guardian. A Hindu, who is a
lunatic, may be possessed of property, although he
cannot take it by inlieritanee. All dealings wth
such property to ho binding must be effected by a
guardian or manager duly appointed by the supreme
civil authority, and since the passing of Act XXXV
of 1858, a guardian or manager can only be apptiint-
ed in the special manner prescribed by that Act.
A de facto manager can have no greater powers than
one ciuly appointed. Where, therefore, the mother
of a lunatic, who had not been so appointed, mort-
gaged his estate without the previous sanqtion of
the Court, the mortgagee's suit for foreclosure T»as
dismissed. Court of W ahps »•. Kfrrr.Mfx Singh
10 B. L. R. 364 : 19 W. R. 164

35.

Power of manager— PfT.toM

appointed manager of lunatic's affairs u-hile he teas
of sound mind. A person who was appointed man-
ager of a lunatic's affairs, by consent obtaine<l
while she was of sound mind, and wlio is capable of
making a defence on her behalf, is competent to
represent her in a suit although not appointed under
the law as rei)resentiitive of the lunatic. Kala
Chand Ghose v. Suooi.gchuna Dossia

22 W. R. 33

36. Cit-il Procedure

Code, 1SS2, s. 463— Bight to sue — Suit by next
friend of a lunatic — .Adjudication of lunacy under
Act A'A'XT' of 1S5S. A suit for partition was
brought by A as next friend of B, a lunatic. Sub-
sequent to the institution of the suit. B was ad-
judged Ui be of unsound mind under Act XXXV of
1858, and A was appointvd a manager of the luna-

( 7671 )

DIGEST OF CASES.

( 7672

37.

Suit by an un-

LUNATIC— c(m/rf.

tic's estate -.—Held, that A had no right to sue, as
next friend of the lunatic, under Ch. XXXI of the
Code of Civil Procedure (Act XIV of 1882). The
provisions of that chapter apply only in cases where
there has been an adjudication of lunacy under Act
XXXV of 1858 previously to the institution of the j
suit. Held, also, that, independently of the provi-
sions of Ch. XXXI of the Code of Civil Procedure, on ;
principles of equity, A had no right to sue in respect |
of the immoveable property of a lunatic. Held, I
further, that the adjudication of lunacy under Act
XXXV of 1858 and A's appointment as manager
of the lunatic's estate subsequent to the institution
of the suit did not cure the original invalidity of
his proceedings in the suit. Tukaram Asant Josiii
V. ViTHAL JosHi . I. L. R. 13 Bom. 656 i

adjudged lunatic by the Agent of the Court of Wards
as guardian — Authority of the Court of Wards — -
Mad. Reg. V of 1S04 — Estates of lunatics subject
to Mofussil Courts Act XXXV of 185S—Code of
Civil Procedure, s. 464. A Jain, who was subject
to the Ahyasantana law, made a wiU, whereby he
disposed of the property of his family in favour of
certain persons, and died. The plaintiff, a female,
was the sole surviving member of the testator's
family, but it was admitted that she was, and for
more than lifty years had been, a lunatic, — thougli
she had not been declared to be so under Act XXXV
of 1858 ; it appeared that her lunacy vras not
congenital. She sued, by the Collector of South
Canara, the Agent for the Court of Wards : — Held,
(i) that the plaintifi was not exchided from inherit-
ance by reason of luna(;y under Ahyasantana law,
and the will in favour of the defendants was invaUd ;
(ii) that the Court of Wards had power to take cog-
nizance of the p'lainlifE's case under Madras Regu-
lation V of 1S04 ; (iii) that although the Court of
Wards should ordinarily obtain a declaration under
Act XXXV of 1858 in cases where the lunacy of
award is open to question, their failure to do so in
the present case was not fatal to the suit ; (iv) that
Civil Procedure Code, s. 464, was accordingly ap-
phcable to the case ; (v) that the appointment of
the Collector as guardian to the jilaintifi was legal
and vahd. In deciding what was the extent of
the property which the plaintiff was entitled to
inherit under the above ruhngs, certain docu-
ments adduced as evidencing partition of the
family property were held to evidence merely
arrangements for separate enjoyment. Sanku
V. Pcttamma . . I. Ii. R. 14 Mad. 289
Guardian of the

person of a lunatic — Suit in respect of the lunatic's
estate — Right of suit — Civil Procedure Code (Act
XIV of l'S8-2), s. '40. A guardian of the person
only of a lunatic has no right to bring a suit in
respect of the lunatic 's estate. The manager of the
lunatic 's estate is the only person who can institute
such a suit. The word " guardian " in s. 440 of the
Civil Procedure Code (Act XIV of 1882) as amended
by Act VIII of 1890, when applied to a lunatic-
means the manager of his estate. Under this sec-

LUNATIC— cow</^.

tion, a person other than the guardian of the esU
can also sue with the leave of the Court, u
DrvALi V. Hikalal . . I. L. R. 23 Bom. iS

39. Striking w

lunatic plaintiff's name — Authority of pleade n
agent for filing suit — Limitation Act (XV of p)
s. 7 — Restoration of name — Suit by person nold-
judged to be of unsound mind under Act XXX oj
iSoS — Right of suit — Guardian — Next fr.d.
A plaint as originally framed contained the nae
of K, stated to be of unsound mind, as first plit-
iff, and of his wife N as his guardian and se id
plaintifi. When the plaint was actually id,
K's name was struck out by the pleader an.V,
Subsequently his name was restored on hi? .vi
application, but the period of limitation presc ec
for the suit had then elapsed. The first Court 3k
that under .-:. 7 of the Limitation Act the plain i'i
claim was not barred. On appeal the Judge lis
missed the suit, holding that the order of the rsl
Court restoring K 's name was bad, and that thiiil
was time-barred at the date of that order. On
second appeal : — Held, reversmg the decree, lat
the pleader and N acted beyond their authori ii
strilving out K's name, and that thereforethe
restoration of his name must relate back to the m
of the suit, which was therefore not'bi-ed
Quaere : Whether a person of unsound mincibul
not adjudged to be so under Act XXX ol
1858, can in this country sue by his exl
friend. Kirparam Jhttmkkram Modia v. 3dij
Dayalji Jhumekram . I. L. R. 19 BoeISS

40.

Act XXX ol

1858, s. 11 — Suit on behalf of minor— Cotlor.
A Collector appointed under s. 11, Act XX. ■ i
1858, to take charge of the estate of a lunar
not himself sue on behalf of the lunatic, Iv
appoint manager for the purpose. Gotjkei
Collector of :Monghyr. Court of V,
RuGHOOBUR Dyal. Sheopershad Narai.n

LECTOR OF MONGHYR . . . 7 W '. i^

41. Appeal, right oi Ad

XXXV of 1858, ss. 3, -J, 22— Right of suit '-■
cover property. On an application made by t!
and son of T. H, an alleged lunatic, under tb •
sions of Act XXXV of 1858, s. 3, the daught-
alleged lunatic, who were served with a noti
s. 4 of the same' Act, appeared at the hearii i .
application, and cross-examined the witnessi -
ined in support of the application. The
found that T H was of unsound mind, and a]
ed his wife, L, to be the guardian of his ;
The daughters appealed to the High Court:
(on an objection being taken that the ap]
had no hcus standi), that the daughters were t
to appeal under the provisions of s. 22, Act
of 1858. Sherman v. Schorn, 24 W. R. W, i
to. Quaere: Whether a right to sue to re-
property would be sufficient to confer jun-
under Act XXXV of 1858. In the maUer
petition of Mahomed Busheeeul H^i^-
MuNGHUR V. Mahomed Busheerul Hossel'

I. L. R. 8 Calc. 263 : 10 C. 1 »• ^

( 7673 )

DIGEST OF CASES.

( 7674 )

] iNATlC—contd.

2. Appointment of guardian

c lunatic where lunatic is member of joint
i aiiy— Ad XXXV of 1S.5S. An application
u le by the wife of a lunatic that she should be
a. ointed manager under Act XXXV of 1858 was
0 osed by the lunatic 's nephew, who was a member
\( 3 him (if a joint family governed by Mitakshara
If, and who claimed to be entitled himself to
t: appointment of manager. The nephew was
h; to be disqualified on the ground of mis-
c. luct, and the wife was appointed. On
a eal by the nephew, it was objected that,
U'cr Act XXXV of 1858, no manager could
b appointed, as the lunatic was a member
0 4 joint family and had no separate pro-
p . -.—Held, that the nephew, by claiming to be
a ointed manager, could not object that the
hitic had no separate property. Quaere:
Vi3ther a manager can under any circumstances
bippointed under Act XXXV of 1858 if the
li itic is a member of joint family under the Mitak-
Blra law and possessed of no separate property.
S BANSE Singh v. Juggesshur Koeb

13 C. li, R. 86

)3. Act XXXV of

m — Member of joint Mitakshara family — Guar-
it . The husband of a lunatic 's daughter applied
tt,ie Court to declare his father-in-law, who was a
miber of a joint Mitakshara family, to be a
lu tic, and appoint a manager of his property and
gt -dian of his person under Act XXXV of 1858.
T lunatic had an interest both in joint ancestral
P|)erty and in property inherited collaterally,
w .'h might, but was not shown to, belong to him
6t|rately. The lower Court found that the
aj.ication was made with a view to taking conse-
q'jit proceedings for partition : — Held, that, it
;i! a ring that he had remained for sixteen years
- ime house under the same guardian, and
ing no allegation of ill-treatment, no suffi-
lounds were shown for the Court's inter-
' ir the appomtment of another guardian of
<n. Before any action can be taken under
in this respect, there ought to be a strong
do out that the change of custody would
he lunatic 's benefit. Held, also, that, as his
1 could not inherit his ancestral property and
i< doubtful if the collaterally-inherited pro-
as the separate property of the lunatic,
lit would not, under such circumstances,
a manager of the property ; but that the
MS of the lunatic, who were managers of
it family, should, on her request, furnish
to the daughter of the management of the
uly-inherited property. Semble : Act
"f 1858 applies to the members of a Mitak-
mily. Qncere : Assuming the application to
with a view to a partition of the property,
' the lunatic was declared a lunatic under the
•ther a partition could be had. In the
of tlie pUition of Bhoopendra Naeain
i^\ Bhoopendra Narain Roy v. Greesh
-Nil.iN Roy

' I. Ii. R. 6 Calc. 539 : 8 C, L. R. 30

LUHrATIC— con/(Z.

44. Incapacity of joint owners

of property — Effect of, in favour of managing
ow7iers. The incapacity of joint owners confers
powers of alienation, in certain casci of necessity,
upon the managing owner. Sheo Pee.shad Nar.un
V. Collector of Monghyr. Goureenath v. Col-
lector OF MONGHYR. CoURT OF WaRDS V. RUG-

HOOBUR Dyal .... 7 W. R. 5

45.

Insanity pending award-

Person, becoming lunatic before award publi.
If a person was in fit condition to manajie his affairs
down to the time when the proceeding? before an
arbitrator in which he was interested were substan-
tially concluded, the a^\ard wUl not be invalidated
by reason of the person having become insane, be-
fore the final publication of the award. Gouree-
nath v. Collector of Monghyr. Court op
Wards v. Rughoobur Dyal. Sheo Pershad
Narain v. Collector of Monghyr . 7 W. R. 5

46.

Power to lease lands of

proprietor disqualified from lunacy -.4 c<

XXXV of IS -:S, s. 9— Court of Wards in Oudh.
The order of a CivU Court declaring, under Act
XXXV of 1858, an Oudh talukhdar to be of un-
sound mind and incapibk- of managing liis affairs,
renders him a di- qualified proprietor v\ithin
the meaning of s. 9 of that Act, with the result
that the Court of Wards is authorized to take
charge of his estate without a further order of
the Civil Court appointing the Court of Wards
to be manager. A Civil Court having made an
order declaring a talukhdar to be of unsound
mind and incapable of managing hi; affairs, and
having at the same time appointed to be manager
of his estate the Deputy Commissioner of ithe
district, who also acted as manager of the Court of
Wards : — Held, that a lease for more than five years
made by the latter officer, as representing the Court
of Wards, was not invalidated under s. l-t of the
above Act, providing that no manager appointed
by the Civil Coui't under it shall have power to
grant a lease for any period exceeding five years.
Sakabjit Singh v. Chapman

I. Ii. R. 13 Calc. 81
li. R. 13 I. A. 44

47.

Civil Procedure

Code {Act XIV of 1SS2), s. -163— Suit against a
lunatic not so adjudged — Lunacy (District Courts)
Act {XXXV of IS^S), ss. 2, 23— Appointment
by Court of guardian ad litem to lunatic — Practice.
The plaintiff in a suit against several defend-
ants described the first defendant (a \\idow, and
not a minor) as of unsound mind, and sued
her as being represented by her mother and
guardian. The first defendant had not been
adjudged of unsound mind under the Lunacy
(District Courts) Act, XXXV of 1858 ; nor did it
appear that the Court of first instance had
satisfied itself that first defendant was, in fact a
lunatic, or that it had approved of the guardian,
named and appointed by the plaintiff, as a fit and
proper person. The suit was only cont«st«d by the
second defendant. By s. 463 of the Code of ('ivil

( 7075 )

DIGEST OF CASES.

( 7676 )

LUNATIC— fonc^rf.

Procedure the provisions contained in ss. 440 to 462
(which relate to the conduct of suits by and against
minors) are directed to apply, mutatis mutaniis,
in the case of persons of unsound mind adjudged to
be so under Act XXXV of 1858 or under any other
law for the time being in force. The contention
having been raised that the suit was bad and must
be dismissed because the first defendant had not
been so adjudged : — Held, that, inasmuch as the
right of suit against the lunatic was unquestionable,
in the absence of any provision in the Code of Civil
Procedure for the maintenance of suits against
person? of unsound mind who have not been so
adjudged under the Act, the Court should appoint
a fit and proper person as guardian ad litem upon
its being established that the first defendant was,
in fact, of unsound mind. Kadala Reddi v. Narisi
(1901) .... I. L. R . 24 Mad. 504

48. Act XXXV of

1858 (Lunacy), ss. 9, 10 and 11, discussed and
explained. Mfkund Kceri v. Deputy Com-
missioner OF Chota Nagpur (1902)

I. L. E. 29 Calc. 638

49. — - " Management of

lunatic's estate — Custody of lunatic's person —
Lunacy Act [XXXV of 1858), ss. 7, 9. Under
s. 9 of the Lunacy Act (XXXV of 1858), it is
incumbent upon a District Judge to appoint
a manager of the estate of a person adjudged
to be of unsound mind. If a lunatic be well
taken care of by his own people at home, he
should not be forced to go to lunatic asylum,
there being apparently no provision in the Lunacy
Act authorizing a District Judge to send such a
person to the asylum. In re Joga Koer (1903)

I. L, R. 30 Calc. 973

50.

LLnaoi

Act

{XXXV of 1858), s. 23— Adjudication of lunacy
upon evidence — Admission by the alleged lunatic.
It i^ necessary for the Court to adjudge, upon
evidence, a person to be a lunatic within the mean-
ing of s. 23 of the Lunacy Act (XXXV of 185S),
before passing an order as to the management of his
property and for the guardianship of his person ;
it cannot proceed upon an admission made by the
person, who is alleged to be a lunatic. Nageshwar
Prosad Singh v. Rudra Prokash Singh (1904)

I. L. R. 31 Calc. 210

51.

Miihamayncdan

law — Guardian defacto — Sale of lunatic's property hy
mother and wife for benefit of lunatic. The mother
and wife of a lunatic Muhammadan acting de facto
as the guardians of the lunatic, sold certain pro-
perty belonging to the lunatic in order to discharge
debts due by him -.—Held, that the transaction
could not be impeached, although the mother was
not under the Muhammadan law the legal guardian
of the lunatic. Mafazzal Hossain v. Bamd Sheikh,
I. L. R. 34 Calc. 3i, Ram Charan Sanyal v. Anukul
Chandra Acharjya, I. L. R. 34 Calc. 6-5, and
Majidan v. Ram Narain, 1. L. R. 26 All. 22, fol-
lowed. Ummi Eegam v. Kesho Das (1 908)

I. L. R. 30 All. 462

LURKINQ HOUSE-TRESPASS.

See Penal Ccde, ss. 443, 444, 453 to J,

Lurking house-tresst

by night — Intention — Burden of proof. The ^
cused was found inside the house of the ci.
plainant at midnight, and his presence is
discovered by the wife of the complainant crig
out that a thief A\as taking away her hansli. le
evidence of the complainant clearly showed it
the accused was not there with the consent, cit
the invitation, or for the pleasure of the compla-
ant : — Held, that the accused A\as properly u-
victed under s. 456 of the Indian Penal Cod it
being for him to show that his intention was u ei
the circumstances innocent. Brij Busi v. ht
Queen- Empress, I. L. R. 19 All. 74, distingui d.
Bulmakuni Ram v. Ghan^an,ram. I. L. R.!2
Calc. 391, followed. Emperor v. Ishri (1906)

I. L. R. 29A1U6

MADRAS ABKARI ACT (III OF 181).

See Sentence — Imprisonment — l,\u-

SONMENT IN DEFAULT OF FiNE.

6 Mad. ApW

1. s. 2 — Liquor — Toddy — Ferm'ed

palm juice. Sweet palm juice, which by expc.re
to the operatioii of natural causes fermentsnd
becomes toddj', is as much manufacturedDy
the person who exposes it as if the same result )re
produced by the process of distillation. An Y-
Mous 5 Mad. Ai2ft

2. . Toddy- -Lennt-

ed palm juice — Conviction without evidence offerti'
tation. Prima, facie, toddy is fermented palm iice.
A conviction under s. 21 of Madras Act HI of ' '4 ,
for selling toddy without a license, upheld, ah

no evidence was given as to whether feiine;
had taken place. Anonymous . 5 Mad. A.\

This case was not intedend to define toddjis a
matter of law. Anonymous . 6 Mad. Aj 11

3. Sale— Bar-
Payment of wages in liquor. Payment of waji in
liquor does not amount to a sale of liquor ^^ '"
the meaning of s. 2 of the Abkari Act (Madr
III of 1864). Queen-Empress v. Appava

I. L.R. 9Mac^^

4. and s. Q—Uneacecuted cofact

to snb-rent — Suit for specific performance, ji »
suit brought by plaintili for the specific perhn-
aiice of an agreement entered into betwedthe
plaintiff and defendant, whereby the defendat •"
abkari contractor, undertook to sub-let to pi
the abkari of a talukh, and also to recover da;
for the breach of contract: — //eW, that s. 0
Abkari Amendment Act (Madras Act III of
did not affect the rights ar d liabiUties of the j
inter se, under the terms of an unexecuted cc
to sub-rent, although the Act would pre\ 1 1
sub-reutor deriving any benefit under an e\^^
contract of sub-renting from the excise o, tee

( 7677 )

DIGEST OF CASES.

;ADBAS ABKARI ACT (III OF 1864)—
ontd.
' s. 2 — concld.

i nufacture or sale of liquor, as defined in s.
: until he had complied with the condition pre-
a'lbed in s. 9 of the Act. Vexkata Kristnaiya

t/EXKATACHALAIYAR ... 5 Mad. 1

s.e—

See Damages — Suits for Lajiages —
Breach of Contract.

I. L. R. 14 Mad. 82
s. 8 — Licensed vendor, sale by agent

0 A license to sell liquor granted to iV under
ti provisions of the Abkari Act (Madras Act III of

1 .') having been cancelled, N put forward M as a
p |,er person to be licensed for the shop in which
}i imself had been selling. 31 was duly licensed
b, the Collector. Under cover of this license, N
otinued his former business, paying 31 a certain
s; 1 monthly. N was convicted of selling liquor
wiout a license: — Held, that the conviction
\v illegal. Queen-Empress v. Nanjappa

I. li. R. 7 Mad. 432

_ S. 10 — Bevenue Recovery Act {3Iad-

rc Act III of 1864), ss. 1 to 5, 37, 42, 52— Sale
fc\arrears of abl'ori revenue — Prior encumbrance
tk'affected. Where land is sold under the provi-
si s of s. 10 of the Madras Abkari Act, 1S64,
fo irrears due by an abkari renter, the purchaser
ai he sale does not take the land free of all en-
c\ brances as in the case of a sale for arrears of
la revenue under the provisions of the Revenue
R|)very Act (Madras Act II of 1864). Rama-
ci ifDEA V. PiTCHAiKANNi I. L. R. 7 Mad. 434

I s. 21 — Licensed vendor — Posses-

»i'i of arrack: The Magistrate convicted the ac-

cii'l under s. 21 of Madras Act III of 1864, and

1 the confiscation of certain arrack found

'.'Session : — Held, that, the accused being a

'1 vendor, the c.rrack was not liable to con-

fiojUfn- Anonymois . 5 Mad. Ap. 41

j — ;■ and s. 22 — Licensed vendors

»/je license has expired. The provision in s. 21
ofjp Madras Abkari Act limiting the liability
"if 'iised vendors whose li

has expired to the
«hich the}' are found in possession of liquor
' the purpose of sale must be read as an
"1 to the general provision of s. 22. Qxteen
YYA . I. L. R. 5 Mad. 131

S. 22 — Conveyance of liquor tvith-

.' permits — Permits made out in names of

irtii's. Upon a conviction under s. 22 of

• .\ct III of 1864, for conveying liquor with-

1 permits, it appearing that the defendants

' 1 permits by the talukh abkari lenter,

- the amount of liquor which was being
'1. but made out in the names of third

■^ lio were not present when the hquor was
"it on whose behalf the liquor was at the
>eiznre being conveyed : — Held, that the
were valid, and the convict'on was bad.

^•'^XTS . . 5 Mad. Ap. 29

MADRAS ABKARI ACT (III OF 1884)—

concld.

B. 22 — concld.

2. Possession of

toddy by servants. Tlie servants of an Abkari
renter of certain villages were convicted under s
22 of Act III of 1864 (Madras) for conveying three
measures of toddy without a permit from one of the
said villages to the shop of the renter : — Held, that
the conviction was illesal. Queen r. Patiachi

I. L. R. 7 Mad. 181

3. ~ and V of 1879, s. 23— Con-

fiscntion of boat -used for carrying liquor with-
out permit. Neither under the provisions of the
Madars Abkari Act nor imder the pro\isions of the
j Abkari Amendment Act, 1879, is an order bv a
i Magistrate confiscating a boat used for carrying
liquor without a vahd permit legal. The Collector
! alone can confiscate. Queen v. Perianan. Queejt
I V. Naraina , , I. L. R. 4 Mad. 241

and s. 17— Co7iftmilion

of animals. Although a Magistrate may not confis
oate animals under s. 23 (a) of the Madras Abkari
Act, yet the proceeds of whatever lias been confis-
cated by the CoUecti r under s. 17, ii eluding
animals would be available for distribution in the
manner prescribed in s. 26 (6). Queen ^•. Sakiyu

I. L. R. 5 Mad. 137

s. 25, and V of 1879, s. 26 (b)—

Not 'producing license. The ofi'ence, under iladras
Act III of 1864, s. 25, of not producing, when called
upon by the police, a liquor license, is not one for
which a Magistrate may proceed un ler s. 26 (b) of
Madras Act V of 1879. (^i ken r. Vasantappa

I. Ii. R. 4 Mad. 231

S. 26 — Police-officer — Village poli

man — 3Iohntad. The term " police-officer " used
in s. 26 of the Abkari Act (Madras Act III of
1864) includes a mohatad or viliauje policfinan.
Queen-Empress v. Seshaya I. L. R. 9 Mad. 97

S. 32 — Non-payment of penalty. \\ heifr

it appears that after distress and s;ile a penalty
impose 1 under s. 21 of the Madras Abkcri Act,
1864, cannot be recovered, and the penalty is
not paid, the Court may commit the offeniler to the
civil jail under s. ;?2 of the Act. Queen?-. Chakra-
SAHU . . . I. L. R. 7 Mad. 185

MADRAS ABKARI ACT (I OF 1886).

Restriction prohibit in/f

licensed vendor of toddy fmm having i7itfrest in the
sale of arraci: — Partnership agreement between
licenced vendor of toddy and liceiuwd rtndur of arrack
— niegalitii — Void aorecment. A held a license for
the sale of toddy, while B held a license for the sale
oi arrack. A entered into an agreement of pirtner-
ship with B in the business of vending arrack and
toddy. At the tinse when tliis atrreement was
entered into, a rule framed under the Abkari .Act
prohibited a person having a license for the sale of
toddy from being interested in the sale of arrack,
or a person having a hcense for the sale of arrack-

( 7679 )

DIGEST OF CASES.

( 7680 )

MADRAS ABKARI ACT (I OF 1886)—

contd.

from being interested in the sale of toddy. A
subsequently sued B for dissolution of partnership
and for the recover}' of money due to him in respect
of the partnership : — Held, that the agreement had
been entered into in contravention of the rule
framed imder the Abkari Act ; that the rule in
question was not one merely for the protection of
the revenue, but liad also for its object the regula-
tion of the liquor traffic in the interests of the
pubUc ; and that the agreement was, in conse-
quence, void (th initio, as being opposed to public
})olicy. Inasmuch as the provisions of the Abkari
Act, as a whole, show that every person carrying
on abkari business as a principal must be licensed
under the Act, such a business cannot be carried on
by a partner who does not hold such a Hcense.
Martjdamttthtj Pilt.ai v. Rangasami Mooppan
i{1901) . . . . I. L. R. 24 Mad. 401

ss. 0, 11, 55.— IV.der the Madras

Abkari Act, 1886, a permit is not necessary where
toddy is carried from the licensee's trees to his
shop within the limits of his farm, or where, the
license having a general permit, the persons carrying
the toddy are in his employment. Queen-Empress
V. Samboji . . . I. L. R. 11 Mad. 472

s. 24, el. (e) — License to sell arrack

issued under the Act— Rule containeti in license
imposing duty on license-holder to obtain Collector's
■permission to sub-let — Agreement to sub-let and sell
arrack to sub-lessee without sanction — Suit on agree-
ment for rent and for 'price of arrack sold — Contract
Act (IX of 1872), s. 23 — Unlawful consideration —
Void agreement — Maintainability of suit. Plaintiff
being the holder of a license issued under a. 24 (c) of
the Jladras Abkari Act of 1880, entered into an
agreement with the defendants that the latter
should sell arrack in plaintiff's licensed shop, and
that plaintiff should supply the liquor to be sold.
Rule 21 of plaintiff's license imposed a duty on
plaintiff to obtain the sanction of the Collector in
case he should subdet. Neither plaintiff nor
defendants obtained such sanction. On a suit
being filed by plaintiff" for a sum of money due
under the agreement : — Held, that the agreement
was illegal, and that plaintiff could not sue on it.
ThITHI PaSRTJDASU v. BHEEMUnLT (1902)

I. L. R. 26 Mad. 430

See Attachment — Alienation btjring
Attachment . I. L. R. 16 Mad. 479

Sale for arrears under

on prior encumbrances — ^As if they were
arrears of land revenue,^ m,eaning of — Limitation
Act (XV of 1877), Sch. II, Art. 12. A sale for
arrears of abkari revenue of immoveable properties
belonging to the defaulter under s. 28 of Act I of
1886 has not the effect of dischargirg encum-
braices cieated prior to the sale. Ramachandra
V. Pitchaikanni, I. L. R. 7 Mad. 131, followed.
The words ' as if they were arrears of land revenue '
in the new Act have the same meaning as the

MADRAS ABKARI ACT (I OF 1886).

contd.

s. '^Q—concld.

words' in like manner as for the recovery of arre?
of land revenue' in the old Act. Chinnasa
Mudali V. Tirumalai Pillai and the Seiretc
of State for India, I. L. R. 25 Mad. 572, foUowi
Kadir Mohideen Morakkayar v. Muthukrish
Ayyar, I. L. R. 26 Mad. 2.30, followed. Wh.
lands subject to mortgage are sold under s. 28
Act I of 1886 the mortgagee's suit to enfo
his mortgage right against the purchaser does i}
fall within Art. 12 of Sch. II of the Limitat i
Act, when the plaint contains no prayer •
setting aside the sale. Ibrahim Khan Sahib .
Rangasami Naicken (1905)

I. L. R. 28 Mad. ^. )

-_ ss. 29, 55 (e)— i?M/e forliddf

delegation by licensee of authority to draw too:
Under s. 29 of the Madras Abkari Act, the G ■
emor in Council made and published a rule on h
February 1887, whereby it was declared thato
license-holder could delegate his authority to d*'
toddjr unless under exceptional circumstances to y
person. B, the son of a licensee, drew toy
with his father's permission. He wasconvkil
under s. 55 (e) of the Act : — Held, that the .e
was ultra vires and the conviction bad. Qtjsi-
Empress v. Bellara . I. L. R. 11 Mad. :0

ss. 31 and 36-

See Private Defence, right of.

I. L. R. 19 Mad. t9

s. 34— I

Power of officer mJM

Circle to arrest offenders in another. An oler
of the Salt and Abkari Department, belongirto
Circle A, received certain information and enfed
Circle B, and, iinder s. 34 of the Madras Abkariot,
arrested an offender in the latter Circle, te
Magistrate who, in due course, tried the offeier,
held that the officer's powers of arrest wereps-
tricted to his ow"n Circle, and acquitted the accpd,
though he believed the prosecution evidence to
an offence having been committed. Upoi'au
appeal being preferred against the acquitt;: —
Held, that the order of acquittal was wrong. '"'
must be set aside. Held, also, that the qu'
whether the officer who effected the arrest
acting within or bey.)nd his p ,wers in inakiii! ""
arrest did n )t affect the question whethd^te
accused was or was not guilty of the offencefith
which he was charged. Emperop. v. Rii^''
Kesigadtj (1902) . I. L. R. 26 Madia4

s. 43—

See MuVGISTRATB, JURISDICTION 'f—

Special Acts — Madras Abkari /'•
I. L. R. 18 Ma 48

ss. 55 (a), 59— Rules notift by

Government under Abkari Act — Rules for " ""*'
diale " removal of toddy. Toddy-drawers fai'ti *«
remove their toddy to a shop or distillery '' f™
a reasonable time ' ' after it is drawn are puni""'^

( 7681 )

DIGEST OF CASES.

7682 )

[ADEAS ABKARI ACT (I OF 1886)—
condd.

s, 55 — condd.

ider 8. 55 (a) of the Abkari Act, though their
isenses do not refer t > the Government notification
ade under the Act, prescribing its immediate
moval. Queen-Empress v. Jammu

I. L. R. 12 Mad. 450
s. 55, cl. (g)—

' ' Wash ' ' fil jor dis-

lation — " Materiah " jor manujaduring liquor.
liquid mixture kno\™ as " -wash," consisting of
ggery and babool bark, and proved to be fit for
stillation, constitutes " materials " for the pur-
ie of manufacturing liquor, ^^ ithin the meaning
, ■■. 55 (fir) of the Abkari Act. Qukex-Empeess
iWANGAYVA (1901) . I. L. R. 24 Mad. 417

il.

S. 56 — License to keep toddy-shop

Failure to keep shop open — Omission not consti-
■ing an ad. By s. 56 (6) of the Madras Abkari
. t, 1886, whoever, being the holder of a license or

■mit granted under the Act, "does any act in

■ach of any of the conditions of his license or
i -mit not otherwise provided for in this Act, ' ' may
I punished with fine or imprisonment or with both.
' e holder of a license to keep a shop for the sale of
1 'dy having been convicted for failing to keep his
Sj'P open, in breach of one of the conditions of the
1 nse : — Held that, even if the licensee was under
I obligation to keep open his shop (which did not
£ )ear to be the case), an omission to do so did not
S|Ount to an act in breach of the conditions of the
1 nse ; and that the conviction must in conse-
c nee be set aside. Queen-EmpPvESS v. Venkata-
s|[i Naidu . . I. L. R. 23 Mad. 220

jdben-Empkess v. Kaetjppan

I. L. R. 23 Mad. 220 note

• -: ss. 56, 64:— Holder of a license

his servants. The words " being holder of
_ ense " in Abkari A. t, s. 56, must be taken to
i::ude any person in the employ, or for the time
lag acting on behalf of the holder of a license.
I ees-Empress v. Mahalingam Servai
- „„ , I. L. R. 21 Mad. 63

JiDRAS ACTS.

1862— IV—

See Grant — Resttmption or Revocation
OP Grant . I. L. R. 14 Mad. 431
186a-I—

See Contempt op Court— Penal Code.
S- 174 . .4 Mad. Ap. 51, 52

IV—

^eeMuNsip, jurisdiction op.

2 Mad. 82

3 Mad. 339

4 Mad. 149
1864—11-

See Madras Revenue Recovery Act,
See Landlord and Tenant— Mirasidaks.
I. II. R. 1 Mad. 205
VOL III

MADRAS ACTS-^ontd.

1864— II— concW.

See Madras Abkari Act, 1864, s. 10.

I. L. R. 7 Mad. 434

See Madras Revenue Recovery Act
1864.

1864— III—

See Madras Abkari Act, 1864.
1865— III—

See Magistrate, jurisdiction of — Spe-
cial Acts —Madras Act III op 1865.

See Fine ... 3 Mad. Ap. 9
VII—

See Madras Irrigation Cess Act.

VIII-

See Madras Rent Recovery Act, 1865.
See Registration Act. 1877, s. 17.

7 Mad. 234
1865— X—

See Right op Suit— Suits against
Municipal Officers . 3 Mad. 370

s. 108 — Slaitghter-house, Using place

as. Slaughtering a sheep in one 's own premises
for one 's own private use is not an offence under s.
108 of Madras Act X of 1865. Anonymous

6 Mad. Ap. 18

; s. 114:— Continuing of offensive trade in

premises already u^ed. The continuing of offensive
trades m premises already used is not an offence
under s. 114 of Madras Act X of 1865. The section
only applies to the fresh dedication of premises
to certain offensive trades. Anony.mous

5 Mad. Ap. 16
1866—1—

See Canton^uents Act (Madras Act I
OP 1866) . . .7 Mad. Ap. 15

I. L. R. 8 Mad. 428
See Cantonment Magistrate.

I. L. R. 8 Mad. 350

See High Court, jurisdiction of —

Madras — Criminal . 3 Mad. 277

_ 1866— IV—

See Madras Enfranchised Inams Act.
See Right op Sun — Office or Emolu-
ment . I. li. R. 8 Mad. 249

- 1867— VI—

See Madras Towns Lajtd Rjvenue Act.
I. L.R. 22 Mad. 100

IX—

See Madras Municipal Act, 1867.
11 M

( 7683 )

DIGEST OF CASES.

( 7684 )

MADRAS ACTS— contd.

1869— III-

See Contempt of Court — Penal Code,

s. 174 . . .5 Mad. Ap. 28

6 Mad. Ap. 44

7 Mad. Ap. 10, 11

I. L. R. 5 Mad. 377

I. L. R. 7 Mad. 197

I. L. R. 12 Mad. 297

See Criminal Procedure Code, ss. 476,

435, 439 . I. L. R. 29 Mad. 100

See Summons, service of.

I. L. R. 11 Mad. 137

— 1871— III—

See Madras Towns Improvement Act,
1871.

IV—

See Madras Local Funds Act, 1871.
1873— III—

See Madras Civil Courts Act, 1873.
_ 1876—1—

See Madras Land Revenue Assessment
Act.

1878— V—

See Madras Municipal Act, 1878.

— 1879— V—

See Madras Abkari Act, 1864.

I. L. R. 4 Mad. 231, 241

— 1882—1—

See Salt, Acts and Regulations relat -
ING to — Madras.

V—

See Madras Forest Act.
— s. 10—
See Valuation of Suit — Appeals.

I. L. R. 8 Mad.

1884-1-

See Madras Municipal Act, 1878,
ss. 103, 105 . I. L. R. 8 Mad. 428
See Madras Municipal Act, 1884.
II—

See Madras Boundary Marks Amend-
ment Act.

Ill—

See Madras Revenue Recovery Amend-
ment Act.

IV—

'S'^e Madras District Munxcipauties
Act.

MADRAS ACTS— conW.
— — 1884-V—

See Madras Local Boards Act.
1885—1—

See Madras Police Act, 1859, s. 48
I. L. R. 9 Mad.

1886-1-

See Madras Abkari Act, 1886.
II—

See Madras Harbour Trust Act.

1887—1—

See Landlord and Tenant — Buill a
on LAND, Right TO Remove and 'a

PENSATION for IMPROVEMENTS.

See Malabar Compensation for ';h
ants' Improvement Act.

1888— III—

See Madras Police Act, 1888.
_ 1889—1—

See Madras Village Courts Act, 1.9.
— III—

See District Municipalities Act.
See Madras Towns Nuisances Ac:

IV—

See Madras Salt Act.
1891—1—

See Madras General Clauses Act
1894—11—

See Madras Proprietary EsTATEiVii^
LAGE Service Act. I

1895— III—

See Madras Hereditary
Offices Act.

1897— III—

See District Madras MuNiciPHiis

(Amendment) Act. i

See Madras District MuNiciptriES

Act.

VUoi

1899 -IV—

See Madras Court op Wards Ypvii-
tion( Amendment) Act.

1900—1—

-See Malabap Compensation '^b
Tenants' Improvements Act.

— 1902—1—

See Madras Court ov Wards jt^'

( 7685 )
lADEAS A.CTS—concld.

DIGEST OF CASES.

( 7()86 )

- 1904—111—

.SV*" Madras Municipality Act.
_ 1908—1—

See Estates Land Act.

:adras boat rules—

L Act IV of 1842— Act IX of

<46 — Jurisdiction of Mayiatrates — Liahilily of
.)ner under rule 7 — Burden of proof. Under Act
C of I84C, the Madras Government is authorized to
ike in respect of ports in the presidency such
Tulations for the management of boats and such
''er matters as are provided for by Act IV of 1842
I .^aspect of the Madras roads, being similar in
^inciple to the provisions of the said Act, but vary-
. ; in detail as local circumstances may require.
;t IV of 1842, s. 24, empowers a justice of the
ace of the town of Madras to hear and determine
I pecuniary forfeiture and penalties had or in-
' -red under or against that Act. Held, that it
s competent to the Government of Madras to
1 )dde that cases cognizable under the rules passed
i iccordance with Act IX of 1846 should be heard
1^1 determined by Magistrates not being Justices
■< he Peace. Under rule 7 of the amended rule
f the better management of boats, etc., plying
f hire at the out-ports of the Madras Presidency,
< -ed 1st October 1S67, the owner of a boat is
l|)le to fine on proof of his allowing his boat to
I without the requisite complement of men.
i d, that, where it was proved that a boat was
ling without its proper crew, the absence of
\ of by the prosecutor that the owner was aware
t .he fact was no bar to his conviction. In re
ijOTHAKONNi . . . I. L. R. 9 Mad. 431

j; Boat Rules in Madras Ports

-"^fmal to carry cargo without rea.wnnble ez-

■ej'.. By the Boat Rules of a certain port it was

:» pvided (i) that all licensed boats must carry such

"^j^f of passengers and quantity of goods as

* old be expressed in the license ; and (i ) that the
o\eT of a licensed boat who should refuse to let his

i vt on hire without assigning reasonable and

* 'factory grounds for such refusal should be liable

' nalty. Held, that a ref u.sa I by a person in

f a licensed boat to receive goods on board

< tallyman was sent with them on the ground

ti he could not count, was not a reasonable and

«ifactory cause. Queen-Empress v. Kamandu

■ I. L. R. 10 Mad. 121

K.DRAS BOUNDARY MARKS ACT
fXVIII OF 1860).

See Court-fees Act, Sch. II, Art. 17.

I. L. R. 4 Mad. 204
See LiMTTATioN Act, 1877, s. 14.

I. L. R. 11 Mad. 309

= -l.iVn'^r^ ^°-^^' ^^' ^8— Appeal nature of—
mCZ ^""'"'i—Duty of Collector— I rregu-

jjWladxas Boundary Act, XXVIII of 1860, is one

MADRAS BOUNDARY MABKS ACT
(XXVIII OF lQQO)-contd.

ss. 21, 25, 28— conci<£.

from a decision recorded in the presence of the part-
ies and duly intimated to them as required by s. 25
of the said Act. The omission by the Collector to
pass a decision in accordance with an arbitrator's
award and to furnish a copy to the parties as
required by s. 21 of the Boundary Act is fatal to the
award. The power given by s. 21 being a judicial
power, a Collector must exercise his independent
judgment, and should not refer the award for
acceptance to the Board of Revenue and Govern-
ment, nor should he adjudicate when, as agent to
the Court of Wards, he represents one of the rival
claimants. Seshama v. Sankara

I. L. R. 12 Mad, 1

s. 25—

See Limitation— Question of Limita-
tion . . I. L. R. 19 Mad. 416
See Minor — Representation of Minor
in Suits . I. L. R. 11 Mad. 309
^ee Res Judicata — Parties — Same
Parties or their Representatives.
I I. L. R. 11 Mad. 309
}■' Appeal — Limit-
ation— Special extension of time for appeal. Under
s. 25 of the Boundary Act (Madras Act XXVIII of
1860), the decision against which an appeal is
allowed in the form of a regular suit is the original
decision to the settlement officer, and not that of his
superior passed on revision ; and unless time is
extendotl by the Governor in Council, the appeal
must be brought within two calendar months from
the date of the original decision. The provisions
of the exception to s. 5 of the Limitation Act,
1871, do not apply. Thir Sino v. Venkatara-
MiER . . I. Ij. R. 3 Mad. 92
2. Limitation — Pro-
cedure. Under s. 25 of Act XXVIII of 1860
(Madras Boundary Act), which limits the time
within which a suit may be brought to set aside
the decision of a settlement officer to two months
from the date of the award, time will not begin to
run until the date on which the decision is com-
municated to the parties. As the settlement officer
is required to take evidence before coming to a
decision under s. 25, a decision based upon the
report of a subordinate vitiates the whole proceed-
ings and is not binding on the partie.-;. Annama-
LAi Chetti v. Cloete I. L. R. 6 Mad. 189

3. Power of Government to

extend time for appeal. I'ho proviso con-
tained in s. 25 of Act XXVIII of 1860 gives a
discretionary power to the Government of extending
the time for appeal by suit at all times even after the
expiry of the period limited. Krishnareddi
Go\aNDAREDDi V. Stuart . I. Ii. R. 1 Mad. 192

4. A suit by way of
appeal against a decision of a Revenue Survev officer
in 1876, under s. 25 of the Madras Bounda'ry Act,
1860, was dismissed on second appeal in 18S1 by tb«
High Court, on the ground that it was barred by

11 M 2

'( 7687 )

DIGEST OF CASES.

( 7688 )

MADRAS BOUTTDARY MARKS ACT
(XXVIII OF I860)— concZrf.

. s. 25 — concld.

limitation, inasmucli as the suit was instituted one
day after the time prescribed by the said Act. The
plaintiffs thereupon applied to the Governor in Coun-
cil, under s. 25 of the said Act, to extend the period
so as to allow the plaintiffs to bring a second suit.
This application was granted, and the plaintiffs
brought a second suit against the decision of the
Revenue Survey officer. Held, that the order of
the Governor in Council was not ultra viref!, and that
the second suit was not barred. Venkatramana
V. Thir Singh . . I. L. R. 7 Mad. 280

MADRAS BOUNDARY MARKS

AMENDMENT ACT (II OF 1884

— s, 9—

See LiMiTATiON-

-QUESTION OF LliMITA-

I. L. R. 19 Mad. 416

MADRAS CITY CIVIL COURT ACT
(VII OF 1892).

• s. 3 — Jurisdiction — Suit for " breach

of promise of marriage " — Contract of marriage
leiween intended bridigroom aad parent of
intended bride — Cognizable by Small Causes Courts
^Presidency ^mall Cause Couds Act (XV of 1882),
s. 19 [q). The phrase " breach of promise of
marriage," which occurs in Art. (g) of s. 19 of the
Presidency Small Cause Courts Act, has reference
to the action as understood in English law, that
is, between the parties who contemplate contract-
ing the marriage, and not between an intended
bridegroom and the parent of ti.e intended bride.
By s. 3 of the Madras City Civil, Court Act, 1892,
jurisdiction is conferred upon the City Civil Court
to try all suits of a civil nature except, inter alia,
suits cognizable by the Small Cause Court. By
s. 19 [Art. ((7)] of the Presidency SmaU Cause
Courts Act, the Small Cause Court has no
jurisdiction to entertain suits for compensation
for breach of promise of marriage. A suit was filed
in the City Civil Court for compensation for breach
of promise of marriage ; but the contract alleo-cd
to ha-, e been br ken had been entered into between
the parent of the intended hride and the intended
bridegroom. Held, that the Court had no jurisdic-
t on, inasmuch as such a suit was not exempted
from the jurisdict on of the Small Cause Court.
Muhammad Ashruff Husain Saheb v. Muhammad
Ali (1901) . . . I. L. R. 24 Mad. 652

MADRAS CITY MUNICIPAL ACT (I OF
1884).

See Defamation

s. 341—

See Sanction for Prosecution — Where

Sanction is necessary, or otherwise.

, I. L. R. 25 Mad. 15

I. L. R. 26 Mad. 43

MADRAS CITY MUNICIPAL ACT (I
lQQ4:)—contd.

s. 341— cojicW.

Liability of

ernment under Taxing Acts, when not expressly )
tioned — Prerogatives of the Crown — Indian Cou i
Act, 1861 (24 & 25 Vict., cap. 67), s. 42. The Si 'i
intendent of the Government Gun Carriage u
tory in Madras, having brought timber belongi; t
the Government into Madras without taking c,
hcense and paying the license fees prescribe b
s. 341 of the City of Madras Municipal Act, a
prosecuted to conviction by the Municipal 'n
roissioners. Held, on revision, that timber brc;h
into Madras by or on behalf of the Governm ' i
liable to the duty imp j^ed by s. ,H41 of the C, c
Madras Municipal Act, although the Govern ;n
is not named in the section. According to thdni
form course of Indian legislation, Statutes impini
duties or taxes bind the Government, unles.h
very nature of the duty or tax is such as to lin
applicable to the Government. Per curia :-
Under the Indian Councils Act, 1861, a Provaa
Council has, subject to the same restrictions as ;09
imposed by the Act on the GovernOr-Ge.o il'
Council, power to affect the prerogative c;thi
Crown by legislation. Bell v. Municipal m
missioners for the City of Madras (1902) '
I. L. R. 25 MadbSI

ss. 392, 433 and 458— iV«w€-

Opening of burial and burning ground — ''Convien
and fitting place'' — Smoke frombuming grodr-
A ctionahle nuisance — Public body — Protec^nr-
Limitation — Continuing nv.isance. By s. 392 th(
City of Madras Municipal Act, 1884, the Mu; ■
Commissioners "shall. . . . provide a si
number of convenient and fitting places fo
and burning grounds, either within or wit!
Mmits of the City, and may acquire Ian. I
purpose ;■' and s. 458 gives a right of actioi:
person aggrieved by the failure of the (
sioners to perform a duty imposed on then
Act. Plaintiff was the owner of a biiii
factory and garden in the neighbourli"
Madras. In 1896 the defendants, the l\w
Commissioners for the City of Madras, n
land close to plaintiff's and opened a bui
burning ground thereon. Plaintiff allei."
his premises had, in consequence thereof, '
unhealthy, insanitary, and unfit for resi
purposes ; that he had been unable to w
factorj',- and that his property had detci
in value. He accordingly sued for an inji
restraining the defendants, from using tli
acquired by them as a burial and burning i-
and for damages. No negligence was
or shown regarding the manner in which thi
ground had been used. There was some ey^'^'^'^
that the burning ground was to some ex|iit a
source of nuisance to anyone who occupied am*

the market value f the

^ .. . ... ,.- ..ated by the o^f^f^

burial ground- Held, that no actionable n «n"-

's premises, and that vu^ ^^.^^~ —
premises had been depreciated by the opemir ^^"^

( 7689 )

DIGEST OF CASES.

( 7690 )

J IDEAS CITY MUNICIPAL ACT
I OF 1864:)— ccncld.

88. 392, 433 and 458 — concld.

h been proved. Per Sm Arnold White, C.J. —

I -n if an actionable nuisance had been proved, the
c >ndants were protected. London and Brighton
JluHiy Go. V. Truman, L. R. 11 App. Cas. 45,
fowed. Metropolitan Asylum District v. Hill,
IH. r, App. Cas. 193, distinguished. The mere
f. that a neighbouring landowner has sustained
d lage from the estabHshment of a burning and
b iai ground does not show that the site selected is
n "convenient and fitting." Tiie words " within
0 vithout the hniits of the City " must be read,
aindum subjectam materiam, and with reference
t' • requirements of the community in connection

■ ilispusal of corp.ses, and the general neces-
I he case. By s. 433 of the City of Madras

iiii Act, the period of limitation for the
u iutuceme!it of suits against the Commissioners
ir'espect of anything done in pursuance of tlie
piicrs given by the Act is fixed at six months.
S ble : That plaintiff's cause of action, if any,
aile when the site began to be used as a burial
gijind, namely, in 1896 and that the claim was
b(.ed by limitation, under both s. 433 of the
gtral law. Muhammad Mohidin Sait v.

II .iciPAL Commissioners for the City of
lltRAS (1901) . . I. L. R. 25 Mad. 118

MDRAS CIVIL COUBTS ACT (III OF
,>73).

See MuNSiF, jurisdiction of.

I. L. R. 9 Mad. 208
L L. R. 11 Mad. 197

See Valuation of Suit.

8.12—

See Execution of Decree — Transfer
of Decree for Execution, etc.

I. L. R. 7 Mad. 397
I. L. R. 17 Mad. 309
See MuNSiF, jurisdiction of.

I. L. R. 11 Mad. 140

I. L. R. 19 Mad. 56

8. 14- -

See Appeal to Privy Council — Cases

IN which Appeal lies or not —

Valuation of Appeal.

I. L. R. 15 Mad. 237

- 8. 16-

See Mahomedan Law — Gift.

I. L. R. 24 Mad. 513

— Suit by reversioner to

'« »• land granted to Hindu, widow — Presumption
"» I death of widow from absence, not a question of
"" '■ -n or inheritance. Plaintiff sued as rever-
' recover certain Innd granted in lieu of
ince to a Hindu widow. The widow had
village sixteen years before suit, and had
1 heard of since. Held, that the question
a presumption arose that the widow was

MADRAS CIVIL COURTS ACT (III OF
1873)— concld.

8. 16 — concld.

dead was not a question regarding succession or
inheritance to be decided according to Hindu law
within the meaning of s. 16 of the Madras Civil
Courts Act, 1873. Balayya v. Kistnappa

I. L. R. 11 Mad. 448

s. 17-

See District Judge, jurisdiction of.

I. L. R. 26 Mad. 595

See MuNSiF, jurisdiction of.

L L. R. 19 Mad. 445

MADRAS COURT OF WARDS ACT
(I OF 1902).

Rules 3 and 7 of rules
framed thereunder — Regulation Collector, power
of, to reject claims as barred. Where, under the pro-
visions of the Court of Wards Act and the rules
framed thereunder, a Regulation Collector and a
Decree Collector have been appointed and a claim
is duly presented to the former before the expiry of
the period prescribed for enforcing the same by a
civil suit, he cannot by keeping such claim pending
before him, until a suit on it would be barred, sub-
.sequently refuse to pay it on the ground that it is
barred bj' limitation. In such cases the claimant
can obtain an adjudication of the Courts on his
claim without resorting to a civil suit. When
the Regulation Collector is called on by the Decree
Collector under rule 3 of the rules to furnish him
with ftdl particulars of all claims notified to him,
it is his duty to ' thereupon furnish hira (the Decree
Collector) with such particulars.' If the claim was
disputed, it was the duty of the Decree Collector
uniler rule 7 to refer the matter to the Civil Court
and the matter that could properly be referred will
be whether the claim was legall}' enforceable at
the lime it was presented to the Regulation Collector.
If the Court decides tiiat it was so enforceable
the Decree Collector was bound to place it on the
list and proceed to discharge it according to the
provisions of the Act and rules. The reference
to the Civil Court is not to be regarded as the
institution ot a suit and s. 4 of the Limitation Act
will not apply. Semble : Where no Decree Collector
is appointed, the party, whose claim is disallowe<l
by the Court of W'arcls, will have no remedy, but
to file a civil suit. The provisions of s. 4 of the
Limitation Act will then apply and the exclusion of
the time during which the claim was pending before
the Regulation CxiUectur cannot be claimed under
s. 14 of the Limitation Act. Regulation Col-

I.ECTOR OF UtHOMALAI EsTATE V. SUBBIER (1908)

I. L. R. 31 Mad. 495
88. 43, 57 — Dispossession of usufruc-
tuary mortgagee — Termination of possession of Court
of Wards — Usufructuary mortgagee's right — Nego-
tiable instrument in the name of Manager of Court of

( 7691 )

DIGEST OF CASES.

( 7692 )

MADRAS COURT OF
(I OF 1902)— concW.

. ss. 43, 51—concld.

WARDS ACT

MADRAS DISTRICT MITNICIPAL
TIES ACT (IV OF 1884).

s. 3 (27)-

Wards — Bight of suit — Beal payee. Where the Court
of Wards assumes superintendence of the estate
of a disquahfied proprietor, and, in exercise of
the powers conferred by s. 43 of the Court of Wards
Act, ousts an usufructuary mortgagee from posses-
sion, and the manager of the Court, in the course of
his management, takes from the tenants of the
property promissory notes payable to himself or
order for the rents and profits of the mortgaged
premises, it is competent to such mortgagee or his
heirs to maintain a suit on such promissory notes
when the Court's superintendence comes to an end
and it delivers to the mortgagee the promissory
notes without however endorsing or otherwise
assigning the same in writing. Dispossession of an
usufructuary mortgagee under s. 43 of the Act does
not convert the usufructuary into a simple mort-
gage. Per Miller, J. — The position of the Court
of Wards on the dispossession of the usufructuary
mortgagee, is analogous to that of a receiver for the
collection of rents and profits, in respect of such
mortgaged properties. The real payee of the pro-
missory note is the landlord by his agent, the man-
ager. Before dispossession the mortgagee was the
landlord for the purpose of collecting rents and pro-
fits, and subsequent to dispossession, the Court of
Wards to such extent was the landlord. When the
Court's superintendence terminated, its receiver-
ship came to an end and the mortgagee as the land-
lord was the real payee entitled to sue and recover
on the promissory notes. SowcarLodd Govinda
Dass v. Sepati Muneppa Naidu (1908)

I. L. R. 31 Mad. 534

MADRAS COURT OF WARDS REGU-
LATION (V OF 1804 AS AMENDED
ACT IV OF 1899).

.-- ^ ss. 35, 37 — Power of Local Govern-
ment to make rides — Such rules may provide for
. claims not passed into decrees — Rules 6 and 7 do
not authorise a reference to the District Court, when
no dispute as to fact or extent of liability in regard to
principal matter of claim — Civil Procedure Code
{Act XIV of 1882), s. 322 (a), (b) and (d). Under
ss. 35 and 37 of Regulation V of 1804, the Local
Government has power to make rules in regard to
claims which have not merged into decrees and to
extend to such claims the procedure laid down in
s. 322 (a), (6) and (d) of the Code of Civil Procedure.
Rules 6 and 7 of the rules framed under s. 35 of
Regulation V of 1804 do not authorise the Decree
Collector to make a reference to the District Court
in respect of the interest to be allowed to a creditor,
unless there is a dispute as to the fact or extent of
liabihty in regard to the principal matter of the
claim, and the question of interest arises as acces-
sory, and incidental to the disposal of the main
claim. The Regulation Collector op Kala-

HASTI AND KaKVETNAGAR ESTATES V. RamASAMI

Chetti (1905) . . I. L. R. 28 Mad. 489

See Public Road, Highway, Stbee'ib
Thoroughfare

I. L. R. 25 Mad. 6

^ s. 3 (27), 196, 263— License ot

required under s. 169, when verandah or other tir-
ing erected within the limits of adjacent profy.
A publie street as defined in s. 3 (27) of the Ma w
District Munieipahties Act, extends only up tcie
boundaries of the adjacent property. The sp al
license under s. 169 of the Act which is require in
the case of projections ' over pyals and pavenita
in front of any building or land in a public s' i '
is not required in the case of verandahs and i. 91
coverings within the limits of adjacent propy.
Narasimma Chari v. Chairman, Municipal C n-
ciL, Conjeeveram (1907) . I. L. R. 31 Mad.31

ss. 4.B (1) (b), 4-B (3) (6) 21, 2^

Supersession of a municipal body under s. 4-. 1)
(b) only a suspension — No notice under s. SI
required when the suit is only forinjuncti —
Easements Act {V of 1882), s. 7, ills, (a) aiiii)
— Bight of proprietor on higher level under 7,
ill. (i), not an easement and does not interfere lili
the right of lower proprietor to build on hism
land under s. 7, ill (a). The ' supertession f a
Municipal Council under s. 4-B (i) (b) of Msras
Act IV 1884 is only suspension of such bodfor
a limited period and such supersession is diff"nt
from and has not the effect of a dissolution iler
s. 4-B (i) (a). The ' reconstitution ' of su a
Council under s. 4-B {1) (b) is the revival o:he
old corporation and not the creation of a fre.-^l i '^
and all the rights and habilities of the sup' '
Council will devolve on the Council so recon-
as its rightful successor. The notice requi'
s. 261 of the District Municipalities Act
necessary, when the suit is for an injunctioi,
right of the owner of higher land under s.
(i), of the Easements Act, i.e., that the
naturally rising in, or falling on, such lan'l
be allowed by the owner of adjacent lo^w
to run naturally thereto is not a right in tin
of an easement and is subject to the ngli'
owner of such lower land to build therem
s. 7, ill. (a), of the Act. The owner
lower land cannot complain of the pa>
such water as an injury, but he is not bound :
open such way and may obstruct it by
erections on his land. Smith v. Kenrick, ■
515, referred to. Byland^ v. Fletcher, L.\-
H. L. 338, referred to. MahaMahopadyaya^^
gachariar v. Municipal Council of j^p
KONAM(1906) . . I. Ii.R.29maa

s. 11— Interference with a fubh'-

The owner of a house in a street at Tanjore r-
without the sanction of the Municipal Coui;'
masonry covering of a drain in front of "''' . „
Held, that the act of the plaintiff did not con. _^^
an interference with the drain within the meai -

{ 7693 )

DIGEST OF CASES.

( 7G94 )

\DBAS DISTRICT MUNICIPALI-
riES ACT (IV OF 1884)— ccn</.

MADRAS DISTRICT MUNICIPALI-
TIES ACT (IV or i884)-ron/J.

B. 11 — concld.

8. 47 and s. 63 — concld.

] trict Municipalities Act, s. 211. Municipal
j. cJNcn-, Tanjore v. Visvanatha Uatj

I. li. R. 21 Mad. 4

-Power of Munici-pality con-

f ed by the section wider than that conferred by
J(ulation VII of 1817 on a Revenue Board —
^ nicipality has under s. 26 of A ct powers of
otal management and can maintain the suit on
b ds in the name of the superseded trustee without
ciining an assignment. The powers conferred on
t Municipality in respect of charitable endow-
c its when action is taken under s. 26 of the Dis-
t Municipalities Act are wider than those con-
f ed on the Board of Revenue by Resjulation VII
0 817. Under the Regulation, the Board has only
fiers of superintendence, but Municipalities have
u er the Act, powers of actual management in
a'ition to the power of superintendence vested by
t Regulation in the Board of Revenue. It is com-
pjnt to a Municipality, which has taken action
uer s. 26 in respect of a charitable endowment, to
nntain a suit on a bond standing in the name of
t superseded trustee without obtaining an assign-
nit of such bond. Municipal Council of

!•! .\HMUNDRY V. .SuSURLA VenKATESWARLU (1907)

I. li. R. 31 Mad. Ill
_ s. 41.

See Public Servant.

I. L. R. 13 Mad. 131

S. 45 — Contract not signed in ac-
ecance with section unenforceable. A contract
p» )orting to be made by a Municipality, but not
aipd by the Chairman or Vice-Chairman and a
Cyicillor as required by s. 45 of Act IV of 1884
JSjit binding on the Municipality. Bada Krishna
D\y. The Municipal Board of Benares, I. L.
Aj7 All. 592, followed. \\'here the contract is
n<|so signed, the Municipality cannot be rendered
We on the ground of executed considcrat on.
^^ng tfc Co. \. The Mayor and Ccrporation of
S.il Leamington Spa, L. Ji. 8 A. C. 517, followed.
K.ASWAMY Chetty r. iTuNTciPAL Council,
fJORE (1905) . . I. L. R. 29 Mad. 360

i " ; Agreement not in

t^Vdance with section not binding on M%micipality
^Uhough party acted upon. An agreement faUing
w I in the scope of s. 45 of the District Municipali-
wAct, is invahd if the provisions of the section
!»[■ not been complied with and is not binding on
« T of the parties to it. The fact that such an
^'iment was partially acted upon, cannot render
« .operative contract. Ahmednbad Municipality
^A^lemanji, I. L. R. 27 Bom. 61S, followed.
" anChetti i: The Municipal Council of
a-jiBAKONAM (1907) . I. L. R. 30 Mad. 290

j : 8- 47 and s. 63— Land tax— Land

wj.proprta^ed to buildings. A municipal council
WTthe Madras District Municipalities Act has no
Pt ?r to levy a tax on any land exceeding seven-and

j a-half per cent, on the annual value of such land.

I The meaning of the term " lands unappropriated to

i any buildings " in the Madras District Municipa-
lities Act, s. 63, cl. 2, considered. Clarke v.
Chairman, Ootacamund Municipal Council

I. L. R. 18 Mad.fSlO

I 2. ss. 47, 66 (7)- Ta.x on hou-'-es, a

yearly tax — When ownership arises after assessment,
such owner liable for whole tax and not only for instal-
ments accruing due after acquisition of ownership.

] The provisions of s. 66 (1) and other sections of the
Madras District Municipalities Act, show that the
tax impo-sed on houses under s. 47 of the Act is a
yearly tax, although for the sake of convenience it
may be made payable in instalments. A person
becoming the owner of a house subsequent to such
assessment becomes liable as o-rnier for the whole
yearly tax and not only for the instalments that
accrue due after his acquisition of ownership. It is
not compulsory on the Municipality to apportion the
tax among the several owners during the period and
the provisions of the Tran.sfer of Property Act
regarding the obligations of buyer and seller in
lespect of the payment of taxes do not apply as
bet\\een the Jlunicipality and the subsequent
o^^Tier. Chairman of the Municipal Council,
Nellore v. Dwarapally Kottamma (1907)

I. L. R. 30 Mad. 423

ss. 49, 50.

See Small Cause Court, Mofussil —
Jurisdiction — Municipal Tax.

I. L. R. 13 Mad. 78

1. s. 53 and ss. 55 and 60 —

Wrongful assessment of profession tax. The Muni-
cipality at Tuticorin demanded RoOas profession
tax from the South Indian Railway Company, which
had alread}' paid profession tax to the Municipality
at Negapatam. The Company complied with the
demand under protest and sued the Municipality for
a refund of the amount paid, and obtained a decree.
Held, that the Municipality at Tuticorin had no
right to levy the tax on the Railway Company, as
the Company had already paid it once, and the
decree directing the amount levied to be refunded
was correct. Municipal Council of Tuticokix
V. South Indian Railway Co.

I. L. R. 13 Mad. 78

2. and ss. 55 and 60— Profes-
sion tax. The Bank of Madras carried on busmess at
(among other places) Negapatam and Tellicherrj-,
in both of which places the Madras District Munici-
palities Act was in force. The Bank paid profession
tax under that Act to the Municipality of Negapa-
tam two days before it was due. The Municipality
of Tellicherry subsequently, and with knowledge of
the above facts, assessed the Bank to the same tax
for the same period and levied the amount which
was paid under protest. Held, that the Bank was
entitled to recover the amount so paid from the

( 7695 )

DIGEST OF CASES.

( 7696

MADRAS DISTRICT MUNICIPALI-
TIES ACT (IV OF 1884)— conii.

ss. 53 and 60 — contd.

MADRAS DISTRICT MUNICIPAL
TIES ACT (IV OF 1884— coreid.

ss. 53 and 262— comcZ./.

Municipality of Tellicherry. Semhle : The aggre-
gate income derived by the Bank from the exercise
of its business in the separate Municipalities should
regulate the class under which it would be liable to
taxation. Municital Council of Tellicherry
V. Bank of Madras . I. L. R. 15 Mad. 153

3. and ss. 59 and 60— Pro-

fession tax — Trader. One who makes it his business
to sell the produce of his own land for profit is a
trader within the meaning of Madras Act IV of
1884, provided the sales are conducted in a shop or
place of business. Held, by Parker, J., that one
who has paid profession tax as a sheristadar in one
municipality is not ont'iat accjunt exe npted from
paying a further tax in respect of a trade carried on
by him in another municipality under Madras Act
IV of 1884. Venkata Reddi v. Taylor

I. L. R. 17 Mad. 100

4. - and Seh. {A)— Profession tax

— District Court pleader — Court situated outside muni-
cipal limits. The plaintiff, who was a pleader,
lived and had his office and occasionally practised in
Courts within the limits of the Municipality of
Salem, but he claimed to be entitled to the refund
of a sum levied on him for profession tax uaider the
District Municipalities Act for the reasons that he
practised as a District Court pleader, and that the
District Court was situated outside the municipal
limits. Held, that the plaintiff was liable to pay
profession tax to the Municipality of Salem.
Ramasami Ayyar v. Municipal Council of
Salem . . . I. L. R. 18 Mad. 183

5. Profession tax —

English Insurance Company carrying on business by
agents in India. The plaintiff was an English Insur-
ance Company which carried on business at Coca-
nada by its agents, merchants of that place, at the
business premises of the agents. The Municipal
Council of Cocanada having levied profession tax
on the plaintiff, this suit was brought in 1896 to
recover the amount. Held, that the tax had been
illegally levied, and that the plaintiffs were en-
titled to a decree for its refund. Corporation of
Calcidta v. Standard Marine Insurance Co., I. L. R.
22 Calc. ■'-81, followed. Municipal Council,
Cocanada v. Royal Insurance Co.

I.L. R..21Mad. 5

6, ss. 53 and 262 — Carrying on busi-
ness within the limits of a municipality — Business
conducted by a local agent without poiver to make
contracts on behalf of company — Levy of profession
tax — Suit to recover amount paid — Substantial com-
pliance with the provisions of the Act — Maintain-
ability of suit. A person who resided within the
limits of a municipality procured business and col-
lected premiums for an Insurance Company, and
forwarded the moneys so collected to the company
at a place outside the municipality. For these
services a commission was received, but no office or
establishment of the company was kept or managed,

by the person so acting, within the municipal!,
nor wa s he empowered to represent the company i
matter relating to contracts entered into by th(.
The municipality levied a sum of money on the co •
pany as profession tax, under s. 47 of the Mad i
District Municipalities Act, 1884 ; and it was pi.
under protest. The company then filed a suit i
recover the amount so levied, when it was contend
m defence that the company carried on a busin-
that was liable to the tax, and that such busii s
was carried on through the company's agent wiia
the limits of the municipality, and that the x
had in consequence been properly levied. It .8
further contended that, by reason of s. 262 of e
Act, no suit would lie as against the municipal'.
Held, that the company was not doing busiiis
within the limits of the municipality. Held, a),
that the suit was maintainable. A company it
liable to the tax had been taxed, and the provisiis
of the Act had not been in substance and ef;t
complied with. The municipality were there "e
not protected from action by s. 262. Qm, :
Whether a company carrying on the businesDf
insurance is liable to be taxed under the MadS
District Municipalities Act. Municipal Counl,
Cocanada v. Standard Life Assurance Ci-
PANY (1900) . . I. L. R. 2^ Mad. J5

'Income^

w rd " income " is used in Sch. A of the Disfst
Municipalities Act (Madras) as meaning " nefu-
come " or profits derived from the business, ad
not the gross income or receipts. By. s. 262 ( of
the Act, m suit shall be brought in any Couto
rec )ver any sum of money collected underlie
authority of the Act, provided that its proviins
have been in substance and effect complied \'li.
A municipality assessed a person under s. 53nd
Sch. A on his estimated gross income. HeU, "»+
the word " income " meant " net income,
consequently the provisions of the Act had n'
in substance and effect complied with, and tl
Court could entertain a suit to recover the ;i
of tax paid under the assessont. Mcr.vi'
Council of Mangalore v. The Codial Bail I _
(1904) . . . . I. Ii. i<.27 Mad.,ii

8. s. 53, and Sch. A, provi" 4

— Person, carrying on business as a monev-h <

Liability to pay profession tax. A persoi
carries on the business of a money-lendr:
whose income is less than R30 per mensem,
chargeable with a tax under s. 53 of the Di
Municipalities Act (Madras), 1884. Mrxi
Council of Chidambaram v. VENKATENAEAtj-A
PiLLAi(1901) . I. Ii. R. 24 Mad.|44

1. s. ^b— Profession tax—Officii-i'^

hea it-quarters in municipality. An oflScer, wse
head-quarters are within a municipality, ^^^
ipso facto exercise his profession or hold suchaicc
or appointment within the municipality so '
render himself liable for the payment of profi'OD

( 7697 .)

DIGEST OF CASES.

( 7698 )

IiDRAS DISTRICT MUNICIPALI-
'IE8 ACT (IV OF 1884) co>Ud.

8. 55 — condd.

U under Madras Act IV of 1884. Accordingly, an
o er who is not personally present at his head-
q rtere in the course of duty for a period of sixty
d; i in the half-year is not liable for the tax under
8. > of the Act. Chairman, Ongole Muxicipality
V. OUNSEY . . I. L. R. 17 Mad. 453
>ee Hammick v. President, JIadras Municipal
Omission . . I. L. R. 22 Mad. 145

' Day ' what is-

C umstances which determine whether particular
dt are to be r"cI:oned or omitted. The word ' day '
in 55 of the Madras District JMunicipalities Act
m ; i a duration of 24 hours and the period of 60
dt^ for which the person must have " held office
w.'in the limits " must be held to be 60 entire and
oij-oken periods, in law, of 24 hours each. It will
d(| nd upon the circumstances whether fractions of
a y are to be omitted or to be counted as whole
d£_ and the cause and character and duration of
al'tice from Municipal limits will determine
wlher particular days are to be reckoned or
ousted. Municipal "Council of Cuddalore
t>. brahmania Ayyar (19051

I, L. R. 29 Mad. 326
-Sub-ss. (2), (3)— Levy of tax

—\galiiy. By s. 63 (2) of the District Municipali-

titAct (Madras), 1884, it is enacted that, except as

pr ided in sub-s. (3) of that section and in s. 63A,

a 1' may be levied at such rate, not exceeding eight

' Tif per centum, on the annual value of the

- or lands or both upon which it is imposed,

•lunicipal Council may have notified under

: and, by s. 63 (J), in the case of (a) lands not

oc'liicd by buildings and not appurtenant to any

'''ill-; or attached thereto for use therewith as a

■'■ pleasure-ground or for the pasturage of

u pt for private use, and {b) lands occupied

• huts, the Chairman may, subject to the

■if the Municipal Council and the sanction

' 'vemor in Council, impose a tax on such

■An annual rate, not exceeding four annas

80 square yards thereof in heu of the tax

■<) in sub-s. (2) : Provided that no tax shall

under the sub-section upon lands used

agricultural purposes. Hdd, that, subject

"iiditions mentioned, a tax levied under

"' ■ i--i) on all lands within a municipality is a

mtax. Queen-Empress v. Allan (190(i)'

I. L. R. 24 Mad. 195
Sub-s. (3)— Mod-

el Municipalities Amendment Act {III of

}^ — ''Lands used solely for agricultural

—Liability to tax. By sub-s. {3) of s. 63

; ulras District Municipalities Act, 1884, as

■ by the Madras District Municipalities

■ tit Act, 1897, lands used " solely for agri-
f'urposes " are exempted from the en-

' "j'l rates of taxation that may be imposed in cer-

'^ijases under that sub-sect. on. Held, thatlands

"ch potatoes, grain, vegetables, etc., are grown.

MADRAS DISTRICT MUNICIPALI-
TIES ACT (IV OF 1884) crmtd.

B. Q3—concld.

as well as pasture lands, are used " solely for agri-
cultural purposes," within the meaning of the sub-
section. King-Emperor v. Allan (IflOI)

I. L. R. 25 Mad. 627

8S. 63, 262— House-tax assessed

on schoolbuilding—Suit to recover tax payable under
protest. House-tax and ^^■ater-tax was levied under
the Madras District Municipalities Act, 1884, s. 63,
on the school buildings of the Native College,
Madura (which were exclusively used for charit-
able purposes), and was paid by the managers of
the college, who sued in the Small Cause Court
to recover the amount. Held, that the tax was
illegal and the plaintiffs were entitled to recover.
Fischer v. Twigg . I. L. R. 21 Mad. 367

ss. 71 {2), 262 (?)— A'o</ce of intended

insertion of name or property on assessment books
— Substantial compliance with Act — Action to
recover money paid in respect of tax. By s. 71 of
the Madras District Municipalities Act, 1884, the
Chairman may at any time amend the assessment
book in manner therein provided, but no person's
name or property shall be inserted, nor any increase
of asseisment made unle;s notice thereof has been
served on such person not less that thirty days
previous to a day to be specified in such notice as the
day upon whch such notice will be revised. By
s. 262, no assessment made under the authority of
the Act shall be impeached, and no action shall be
maintained in any Court to recover money paid in
respect of any tax levied under the Act, provided
that the directions and provisions of the Act shall
have been substantially complied with. A notice
wliich was served .upon plaintiff by a municipal
council purpovted to be issued under s. 71 (2) of the
Madras District Municipilitie^ Act, 1884. and was as
follows : " I have the honour to forward herewith a
list showing the amount of land and water-taxes due
for 1895-90 on devastanam lands within the limits
of this municipality, and to request that you will be
good enough to cause the amount to be remitted
to this office at your earliest convenience." Held,
that the notice was bad, that the terms of s. 71 {'2)
had not been substiintially complied with, and that
consequently s. 262 (2) hfid no application. .Muni-
cipal Council, Nellore v. Rangayya, I. L. R. 19
Mad. 10, explained. ^Municipal Council, Tan-
JORE V. Umamba Boi Saheb

L L. R. 23 Mad, 523

1. S. 103 — Procedure to compel jxiy-

ment of tax — Distress. Under s. 103 of Act IV of
1884 (Madras), a prosecution f r default of payment
of tax cannot be instituted unless the tax cannot be
recovered by distress and sale of moveable property
of the defaulter as prov ded in that section.
Queen-Empress v. O'Shaughnessy

I. li. R. 9 Mad. 429

2. — Attachment of move-
able property — Doors of house. The doors of a

( 7699 )

DIGEST OF CASES.

( 7700 )

MADRAS DISTRICT MUNICIPALI-
TIES ACT (IV OF 1884:)^conid.

s, 103 — concld.

house are not attachable as moveable property
under the Madras District Municipalities Act,
s. 103. Queen-Empeess v. Ibrahim

I. L. R. 13 Mad. 518

3. and s. 110 — Doors of house

— Distraint notice. A Municipal Council under
the District Municipalities Act has, under s. 110, a
power to distrain after due notice, besides that
given by s. 103, but the property distrained must
be that of the defaulter, and the doors of a house
cannot be removed in execution of a warrant of
distress. Pueushottama v. Municipal Council
OF Bellaey . . I. Ii. R. 14 Mad. 467

— S. 169 — Suit for declaration of title

against a 2Iunicipality. The plaintiff sued a
Municipal Council, under the Madras District
Municipahties Act, for a declaration of title to a
certain structure situated in the limits of the
MunicipaHty and of his right to put a roof over
it. The structure was found to belong to the
plaintiff. Held, that the Municipal Council had
no discretion under s. 169 of the above Act to
prevent the plaintiff frora 3eahng with the struc-
ture, provided he did not interfere with the con-
venience of the public or with any sanitary regu-
lations. Keishnayya v. Bellaey Municipal
Coukcil . . . I. L. R. 15 Mad. 292

s. 173 — Obstruction of public street.

S. 173 of the District Municipalities Act, 1884
(Madras), provides that no person shall depo.sit
anything so as to cause obstruction to the pubhc
in any street without the written permission of
the Municipal Council. Held, that the depositing
by any person of an article in the street without
the permission of the Municipal Council amounted
to an obstruction. Queen-Empeess v. Bolappa

I. L. R. 11 Mad. 343

S. 179 — lie-pair of buildings. By

s. 179, Madras District Municipalities Act IV of
1884, it is provided that " the external roofs, ver-
andahs, pandals, and walls of buildings erected or
renewed after the coming into operation of this Act
shall not be made of grass, leaves, mats, or other
such inflammable materials except with the written
permission of the Municipal Council." Held, that
the word " renewed " includes repairing. Queen-
Empress V. SuBBANNA . I. L. R. 19 Mad. 241

ss. 180, 264 — Municipal buildin-g

license — Building in excess of license — Requisi-
tion to demolish building — Magistrate, jurisdic-
tio:i of. A landowner in a Municipality subject to
Madras Act IV of 1884 applied for a building license
under s. 180 of the Act. The Municipality, having
resolved that a portic n of the land was required for
widening a pubhc lane, ordered the applicant to
abstain from building on it, and granted a license for
a building to be erected on the remaining portion.
The landowner, however, erected a building upon
the whole of the land. The Municipal Council then

MADRAS DISTRICT MUNICTP.dI
TIES ACT (IV OF 1884)— com<</.

ss. 180, 264— concM.

called upon her to demohsh the building erecteit
the portion of the land which had not been licei-d
This notice was not complied with. The lando ei
was then prosecuted and convicted under ss. iO,
263, and 264 of the Act. Held, that neither o h«
abovementioned orders of the Municipal Co 3ii
were legal, and consequently that no oSenceMJ
been committed by the landowner. Serie
Madras Act IV of 1884, s. 264, dees not empo\'a
Magistrate to impose a fine prospectively in re -ct
of the period during which a person convicted ch(
offence of omitting to comply with a notice tcje-
cute any work may continue to leave such rl
unexecuted. Queen-Rmpeess v. Veeeamsul

I. L. R. 16 Mad. JC

___^ s. 188 {n) — Not necessary to m-

stitute offence that the cattle should have beempi
for purposes of trade — No offence if cattknoi
habitually kept. An offence under s. 188 ( ol
Madras Act IV of 1884 is committed when a p«n
keeps more than 10 head of cattle in a private ]ce,
though not for purposes of trade. It is necesry,
however, that there mu^t be regular user c;he
place for keeping more than 10 head of cattle ; ;'Ja
mere temporary user for such purjiose wil!iot
constitute the offence. Emperor v. M.\y."iii
Konan (1906) . . I. L. R. 30 Mad.20

1. ss. 188, 189— Keeping a p'oti

cart-stand without a license. In a prosecutio foi
using a place as a cart-stand without a license 'ilei
the Madras District Municipalities Act, 1884, ivae
proved that carts resorted daily to the premi J oi
the accused, laden with produce for sale to th<en-
eral public and not only to the accused, who ted
as a broker and permitted the carts to stand ( liia
premises until the sale and removal of the gooc-vai
completed. Held, that the place was used ^ a
cart-stand within the meaning of s. 188, and th •""
accused had committed an offence punishab!'

s. 189 of the Act. Queen-Empress v. Ayv
MuDALi . . . I. L. R. 22 Mac.

2. Keeping a iff^

cart-stand without a license. It is not necess<v in
order to establish the offence of using a plat
cart-stand without a license under the >
District Municipalities Act (Madras Act IV of

s. 189, to prove that the cart-stand is ofiens, 't
dangerous or that fees are levied there. Q,^-
Empress v. Ayyakannu MuDALi

I. L. R. 21 Mad293

s. 191, el. 2, and s. 262, el. 2- ob-
struction of statutes, observations on — Rel"
money obtained under a void agreement—i
Act (IX of 1872), ss. 23, 65— An agreement '
to create a monopoly void us opposed to public
Agreements having for their object the r
of monopolies are void as opposed to
policy under the English Common Law and u;- ' ■
23 of the Indian Contract Act. The powf^"'"'
ferred by s. 191, cl. 2 of Madras Act IV of ]* ""

( 7701 )

DIGEST OF CASES.

( 7702 )

ADRAS DISTRICT MUNICIPALI-
I'lES ACT (IV OF 1884:)— contd.

s. 191 — concld.

Ill Chairman of a municipality to license places for
fi ing meat, etc., only empowers him to consider the
) ipriety of granting or withholding license in each
( e and not to enter into agreements, which must
) elude him from considering any .such application,
I ept from a particular person or persons. A
) ver to interfere with the ordinary rights of citi-
I s will not be inferred in the absence of express
{,nt, unless it must be implied as incidental to
( er powers expressly granted or is indispensable
t repress "the mischief contemplated and advance
t. remedy given. Rossi v. Edinburgh Corporation,
\- '] A. C. 2J, referred to. Logan v. Pyne, 43
I -a 524 : 22 Am. Hep. 261, 262, followed. Doubts
(• o the existence of such powers must be resolved
a inst the Corporation and in favour of the public.
\ ere a municipal body receives license fees under
a )id agreement, it must, when the agreement is set
a e, refund the amount so received under s. 65 of
t Contract Act ; and a suit to recover such amount
w not be barred by s. 262 (2) of Madras Act IV
0 884. Discretionary po\\ er to granfc licenses con-
fied by s. 191, cl. 2, District Municipalities
/, doe? not empoM'er Municipalities to refuse
linses, unless clear grounds exist for so refusing,
biu PiLLAi I'. The Municipal Council. Mayava-
I. L. R. 28 Mad. 520

Rit (1905)

88. 191, 197— 3Farket,

. *--, . ^,. «...>,., definition of —

C| of, as market, what amoxmts to. Private pro-
Pj;y is used as a market when it is used as a public
p-e for buying and selling. Where a private
n;ket had been ordered to be closed, a person
uig the place for selling fish and flesh after
acense had been refused is guilty of an offence
ujer 8. 197 of the Madras District Municipalities
K or, at any rate, of an offence under s. 191. Abu
Ikkb v. Municipality of Negapatam (1905)

1 I. L. R. 29 Mad. 185

- — ^ — 8. 198 and ss. 191, 192. 193—

tV.hf.r'8 licenses — Private market, meaning of.
Ailunicipal Council, under the Madras District
"jiicipalities Act, refused to give licenses to cer-
tt persons keeping butchers' shops not used as
•I. I^hter-houses, except on the condition that they
"Ijild remove to a fixed market. Held, that but-
•^ "s'shops are not "private markets" within the
"(ning of the Act, and that the action of the
l»,iicipal Council was vltra vires. Queen-Em-
»■ 38 V. Baoduk Bhai . I. Ii. R. 10 Mad. 216

J ;~ 3. 222 — Nuisance — Sewage water.

A| occupier of a building who allows sewage
*|>rto run into a street within the limits of a Muni-
cijity, governed by the Madras District Muni-
e||lltie8 Act, commits an offence under s. 222 of
'i Act, although the Municipality may have sup-
D ^% ■'''^'^ tirains in the street in question.
t»-EMrKEss V. Sevudappayyar

I. Ii. R. 15 Mad. 91
Section applies

MADRAS DISTRICT MUNICIPALl
TUBS ACT (IV OF 1884:)—conid.

8. 222— concld.

obligation imposed < a house-owners by 8. 222 of
the District Municipalities Act, of not letting dirty
water pass into the street is not conditional on the
existence of drains made by the municipality.
The hardship which may be infiicted on house-
owneis where the municipality has provided no
drains is a matter to be considered in graduating
the penalty. Emperor v. Nagan Chetty (1906)
I. L. R. 30 Mad. 221

S. 261 — Limitation — Contract Act

{IX of 1872), s. 71— Penalty. The CouncU of a
Municipality, under Madras Act IV of 1884, en-
tered into a contract for the lighting of the town
whereby it was provided that the deposit made by
the contractor should be forfeited on any default
made by him in carrj'ing out the terms of the con-
tract. One holding a decree against the con-
tractor attached the amount of the deposit in the
hands of the Municipal Council, but the Council
subsequently passed a resolution in July 1888
declaring that the amount of the deposit had been
forfeited. The decree-holder, having purchased
from the contractor his right to the money in ques-
tion, sued in 1890 to recover it from the Munici-
pality. Held, (i) that the suit was not baned by
the rule of limitation in the Madras District Muni-
cipalities Act, s. 261 ; (ii) that the provision for
forfeiture in the contract was penal and une force-
able, and consequently that the resolution of July
1888 was ultra vires. Srinivasa v. Rathnasaba-
PATHi . . . . I. L. R. 16 Mad. 474

8.262—

See ante, ss. 53 and 262.

. Suit to recover tax

alleged to be illrgallij levied — PigJd of suit. The
plaintiff built a house at Nellore, the construc-
tion of which was completed on the 15th of August
1893. The Municipal authorities of that place,
being governed by the Madras District Municipali-
ties Act, gave notice of assessment on the 11th of
September, levied the tax as assessed, and credited
it as the tax due for the half-year ending on the 30tii
of September 1893. The plaintiff now sued to re-
cover the amount paid by him as having been
illegally levied. Held, that under the provisions
of the District Municipalities Act, s. 202, the suit
was net maintainable. Municipal Council of
Nellore v. Rangayya . I. L. R. 19 Mad. 10
8S. 263, 264:—Crinumil Proce-

oner havii

no side drains or ditches. The

dure Code {Act X of ISS;). s.-\ 16. ■y-.n-Bnirh of
Magistrates. A trial on the charge of making an
encroachment upon public land under District
Municipalities At (Madras), 1884, ss. 167, 263. and
264, was begun before a Bench of seven Magistrates,
and ended in a conviction by five of the Magistrates
in the absence of the other two. It appeared that
the Municipal Council had passed no resolution
under District Municipalities Act, s. 264 : — Held,
that on the facts of the case the conviction under s.

7703 )

DIGEST OF CASES.

( 7704 )

IffADRAS DISTRICT MUNICIPALI-
TIES ACT {IV OF 18a4.)—contd.

ss. 263, 264:—condd.

263 was right, and that it was not invalidated by
the absence at the end of the trial of two of the
Magistrates before whom it had begun. Quaere :
Whether /a charge under s. 264 would lie in the
absence of a resolution passed by the Municijjal
Council. *Karxjppana Nadan v. Chairman, Ma-
dura Municipality . I. L. R. 21 Mad. 246

2 Bye-law No. 4:8— District Mu-
nicipalities Amendment Act (Madras Act III
of 1 ■'QT)— Covering a drain w'tJiovt Municipal
permission. A bye-law of a Municipality had been
framed under the powers conferred by an Act of
1884 as amended by an Act of 1897, and was to
the following eftect : ' ' No public drain shall be
covered M'ithout the permission of the Municipal
Council." It had come into force in 1890. Prior
to its coming into operation, an earlier bye-law had
subsisted, in substantially the same terms. An
occupier of premises, who had covered a drain dur-
ing the subsistence of the earlier bye-law, was
charged with having committed an offence under
the later bye-law and contended by way of defence
that he could not be convicted, inasmuch as the
act complained of had been committed before the
passing of the Act under which the complaint was
laid. He was convicted by a Bench of Magistrates :
— Held, that the conviction was right. Per Arnold
WhitE; C. J. — The bye-law applies to all drains
which existed in a covered state at the time when
it came into operation. The word " shall " is
used throughout the bye-laws in the imperative,
and not with reference to time, and this is the senve
in which it is used in the bye-law in question. Per
Benson, J. — A bye-law similar in terms to that
under which the accused had been convicted having
been in existence under the then Municipal Act at
the time when the accused first covered the drain
in question, the liability then incurred by him con-
tinued, under the General Clauses Act (Madras)
unaffected by the passing of the present Municipal
Act. The contention that the accuse :1 could not
be convicted because the act complained of was
committed before the present Municipal Act was
passed, therefore failed. Parimanam Pillai v.
Chairman, Municipal Council, Ootacamund.

I. L. R. 23 Mad. 213

- s. "^QQ -Madras Act IV of 1SS4
(as amenlel by Madras Act III of 1S97),
s. -ISO — Money due as tax, fee, toll or other payment —
Money due on toll contract — Applicability o! section.
Money due under a contract intered into with a
Municipality, for the right to collect tolls in con-
sideration of a money payment, does not fall within
any of the provisions of s. 269 of the District Muni-
cipalities Act, 1884 ; and a contractor who fails to
pay what is due under such a contract cannot be
convicted and fined under that section. Abdul
AzEEz Sahib v. Cuddapah Municipality (1902)
I. L. B. 26 Mad. 475

MADRAS DISTRICT MUNICrPAI-
TIES ACT (IV OF 1884)— concW.

Seh. A—

See ante, s. 53 and Sch. A, proviso 4.

Shopkeeper of tra>-

— District Forest-officer — Depot for sale of fo,t
produce, conducted by representative of Governmcn-
Liahiliiy to taxation. A District Forest-officer, v j
as the representative of the Government, condus
a depot for the sale of forest produce, is not liaa
to taxation, under Sch. A to the Madras Dist t
Mimicipalities Act, 1884, as a " trader" or " sh -
keeper." Municipal Council of Mangalort-.
Secretary of State for India (1902)

I. L. R. 25 Mad. 7

MADRAS DISTRICT MUNICIPAI-
TIES ACT (III OF 1889). |

s. 4 — Alloiviruj offensive matter to w

into a ' ' street ' ' — Discharge into drains not fo-ni g
part of street — Definition of street. A defencit
was charged under s. 4 of the Madras Dis<;t
Municipalities Act with allowing offensive maer
to flow from his house into a street. The maer
flowed into a drain or ditch constructed along le
side of the roadway. On the question .as to
whether any offence had been committed : — Id,
that a ' ' street ' ' is any way or road in a city ha ig
houses on both sides ; and that in consequence lis
definition excluded the drain or ditch on either Je
of the roadAvay ; that the drain was not part ofie
' ' street ' ' and that the oifence charged had not en
committed. Venkatrama Chetti v. Emptjb
(1005) . . . . I. L. R. 28 Madl7

MADRAS DISTRICT MUNICIPA.I-
TIES (AMENDMENT) ACT (III )P
1897).

s. 5 — I

See Public Road, Highway, StjIT

OR Thoroughfare.

I. L. R. 25 Mad.185

ss. 10, 10- A, 19, 250-

Rules, 6, 34, 35 ml 36

of rules framed by Government under s. 250 — El '"^
of Councillor invalid under rule 6' if defect t
before election although opinion of Governor in C'
expressed after — Finality of the Collector's order
rule S6 — Powers of Government under rule 34
unless order is passed by the Collector under rn
and 36 — Rules 35 and 3o apply onlij ivhen y
presentel to Collector — Rules 3-1, 35 and •
ultra vires. Under s. 10-A of the Madras D
Municipalities Act and rule 0 of the rules f mc.l
under s. 250, a person is disqualified from "ing
appointed or elected a Councillor if, befo OJS
election, he is convicted of an offence, which, f-ne
opinion of the Governor in Council, disqiihes
him from being a Councillor, even thougl^ucn
opinion of the Governor in Council is arrived aiit^r
the election. The refusal by the Goverrr in
Council to remove a Councillor under s. 19 fcsucb

( 7705 )

DIGEST OF CASES.

( 7706 )

ADBAS DISTRICT MUNICIPALI-
TIES (AMENDMENT) ACT (III OF

1897)— concW.

s. 10 — concld.

MADRAS FOREST ACT (V OP 1882)—

s. 2— concld.

conviction is no bar A\hen such Councillor is sub-
juently re-elected, to the invalidation of the elec-
pu on the ground of such conviction. Rules 34,

and,36 are not ultra vires. The rules were validly
ide m exercise of the powers conferred by s. 250
I ; and even if not so, the power to prescribe
Dditions conferred by s. 10, empowers the Gover-
r in Council to make such rules. Itules 35 and

prescribes the procedure to be followed when a
tition contesting the election is presented. The
i>rd " then " in rule 35 means " after such peti-
'■; is presented to the Collector " and not " after
t? Governor in Council has taken action undc^r
'e 34." The Governor in Council taking action

der rule 34 is not confined to putting the
"Hector in motion under rule 35, but can pass
Olers himself. Such power is not taken away
l' the powers conferred on the Collector under
1 es 35 and 3G, but only by an order of the Collector
<ly passed under those rules on a petition pre-
iiited to him. The Governor in Council may take
iiion under rule 34, whether a petition has been
,]i sented to the Collector or not. The fact that the
(vemor in Council may, under such circumstances
li notification, remove the Councillor under s. 19
(!:he Act, does not affect the validity of such rule,
i|ich enables him to invalidate the election without
fiiiotification. Per Wallis, J.— Rules 35 and 36
CI not warrant the validity of an election being
cbstioned on the ground that the person elected
\\i likely to bring the municipal administration
J:,) contempt without such enquiry as is provi-
dj by the rules ; and the pronouncement of such
tl'iualification by the Governor in Council under
r I 34 without such enquiry cannot be supported.
SIbetaky of State for India v. Vexcatesalu
h-DV (1906) . . . I. L. R. 30 Mad. 113

s. 49—

See Madras District SI unicipalithes

Act (Mad. Act IV of 18^4), s. 63.

I. li. R. 25 Mad. 627

liDRAS DISTRICT POLICE ACT
|S.XIV OF 1859).

i See Madras Police Act.

iIdras enfranchised inams

CT (IV OF 1866).

See Inam . I. L. R. 30 Mad. 434

If DRAS forest act (V OF 1882).

See Onus of Proof — Possession and
Proof of Title.

I. L. R. 19 Mad. 165

s. 2 and ss. 3, 4, 6, 8, 9, 50—

jhroying cairn erected by Forest Department.
T'laccused, who were servants of the shrotricmdar
01 1 agraharam, destroyed a cairn erected by the

Forest Department on the shrotriem land along the
boundary line of a proposed forest reserve. No
notice under Forest Act, s. f,, was proved to have
been served on t! e shrotricmdar, and it did not ap-
pear whether the land in question was com})rised in
the boundaries specified in the modification pub-
hshed under s. 4. The accused were convicted
under s. 50 (d). Held, (i) that the provisions of
the Act did not apply to the shrotriem land ; (ii)
that the right of a forest officer to enter upon
and demarcate land under s. 9 is hmited to the
purpose of the inquiry directed by s. 8 ; (iii) that the
conviction was wrong. Queen-Empress v. Jangam
Reddi . , . . I. L. R. 14 Mad. 247

2. . ss. 2, 4:3— P.ules 10, 13, 23— Legs

-permanently fastened to a building cease to be timber.
The accused were convicted of removing "timber
vested in the Forest Department, and the convict-
ing Magistrate ordered it to be confiscated. Held,.
that, having been already permanently fastened
to a building, it had ceased to he timber within the
meaning of s. 2 of the Forest Act, and the order for
confiscation was illegal. Queen -Empress v. Ke-
THiGADir . . . I. L R. 9 Mad. 373

s. 4 and ss. 2, 10, and 14r— Claim to

percentage of forest income— Pensions Act (XXI 11
of 1S71), s. 4 — " Civil Court " — Jurisdiction of
Forest Settlement Officer — Jurisdiction of Appel-
late Court — Consent of parlies to jurisdiction.
A claim to a percentage of forest income is not a
claim to forest produce under IMadras Act V
of 1882, nor is it a claim to a right specified in
s. 4 of that Act. A Forest Settlement Officer has
no jurisdiction to entertain a suit in which such
a claim is made, and such a suit brought by
discharged forest karnams is barred by s. 4 of the
Pensions Act. A Forest Settlement Officer is a
"Civil Court " for the purposes of the Pensions
Act. If a Court of limited jurisdiction exceeds its
powers and adjudicates on a claim over which it
has no jurisdiction, the Court (if any) which
exercises appellate jurisdiction over it is bound
to entertain an appeal preferred against the lower
Court's decision, and to correct the error. A
Court of competent appellate jurisdiction in such a
case is not bound by an order made without juris-
diction by a Collector on an appeal to him in the
same suit. Submission by the parties to his juris-
diction cannot give a Forest Settlement Officer
jurisdiction in a case where he lias no inherent juris-
diction. Secretary of State for India v.
Vydia Piixai . . I. L. R. 17 Mad. 193

S.6—

See Title — Evidence and Proof of
Title — Lono Possession

I. L. R. 15 Mad. 315

"~ Tree pottah — Occupier

of land. Tire holder of a tree pottah is a known
occupier of land within the meaning of s. 6 of the

( 7707 )

DIGEST OF CASES.

( 7708 )

MADBAS FOREST ACT (V OF 1882)—

cont.l.
s. 6 — concld.

Madras Forest Act,
Madras Forest Act

s. 10—

See ArPEAi,-

Reference under the
. I. L. R. 12 Mad. 203

-Madras Acts.

I. L. R. 11 Mad. 309

See Jurisdiction of Civil Court-
Statutory Powers, Persons with.

I. Ii. R. 12 Mad. 105

See Valuation of Suit — Appeals.

I. Ii. R. 8 Mad. 22
ss. 10 and 11 — Cla)7n by riparian

Mi:ner to uninterrupted flow of natural stream — Juris-
diction of Forest Settlement Officer. A Forest Settle-
ment Officer appointed under s. 4 of the Madras
Forest Act, 1882, has, under ss. 10 and 11 of that
Act, jurisdiction to decide a claim by a riparian
owner to the uninterrupted flow of the water of a
natural stream. Sangili Veera Pandia Chinna
Tambiar v. Sundaram Ayyar

I. Ii. R. 20 Mad. 279

ss. 14 and 39 — Limitation Act

{XV of 1877), ss. 5, 6 — Period of Limitation —
Power to excuse delay. Delay in preferring an
appeal under the Madras Forest Act beyond the
period prescribed by s. 14 of that Act may be ex-
cused under s. 5 of the Indian Limitation Act, 1877.
Reference under Madras Forest Act

I. L. R. 10 Mad. 210

1. -

s. 21— Tree jjottah — Trespass.

The holder of pottah of certain trees on land which
had been declared a reserved forest was convicted
of trespass under the Madras Forest Act on proof
that he continued to gather the produce of the
trees. Held, that the conviction was bad for want
of proof that the petitioner's claim had been duly
disposed of or that he had not preferred his claim
within the period required by law. Queen-
Empress V. Rami Reddi . I. L. R- 12 Mad. 226

2. and ss. 4, 7, 16— Making

fresh clearing, offence of — Omission of order pro-
hibiting felling of trees pending re-hearing of a case.
A claim put forward to part of certain land notified
for reservation under the Madras Forest Act ori-
ginally rejected was held, to be vahd by the District
Court on appeal The High Court set aside the
decision of the District Court, and directed that the
appeal be re-heard. Pending the re-hearing, a
lessee of the claimant felled trees on the land, and
was charged under s. 21 (a) with the oiience of
making a fresh clearing prohibited by s. 7 of the
Act. The Magistrate acquitted him on the ground
that there was no order in writing served on him
by the Forest Department prohibiting him from
felUng treea pending the re-hearing. Held, that the
acquittal was wrong. Queen-Empress v. Nara-
simmayya . . . I. Ii. R. 12 Mad. 336

3. Grazing cattle in

a forest reserve. The owner of cattle found grazing

MADRAS FOREST ACT (V OF 1882)

concld.
8. 21 — concld.

in a forest reserve cannot be convicted unc
Madras Forest Act, s. 21 (d), in the absence!
evidence that he either pastured the cattle or p.
mitted them to trespass in the reserve. Qitei-
Empress v. Krishnayyan I. Ii. R. 15 Mad. U

s. 21, cL (a) — " Clearing " — Remol

of trees or shrubs — Conviction where no evidence f
such removed — Validity. The word " clearing,' s
it is used in s. 21 (a) of the (Madras) Forest Ac i
1882, means something in the nature of the remc.l
of trees or shrubs. Certain accused were convi'd
of an offence under the section but there was no i-
dence on the part of the prosecution to show 1 1
there had been any removal of trees or shrubs by e
accused, or that cultivation of the land in ques n
could not have been carried on without such >.•
moval. Held, that there was no evidence that ie
accused had committed an act prohibited by s.l.
Emperor w. VenkannaPrabhu (1902) i

I. L, R. 26 Mad. ■fjO

s. 26 — Cutting trees without !f-

mit — Canara Forest Rules, Nos. 7, 12, 23. le
accused, not having a permit, cut certain class ;d
trees on the kumaki adjoining his land and usedie
wood in his still as fuel ; and upon these facts he as
convicted of an offence against rules 7, 12, nn<3.
Held, that the conviction was illegal. Qu s-
Empress v. Sheregar . I. L. R. 13 Mad21
s. 33 — "■Jointly interested "—Pas-
sion of forest under a mortgage. The Govn-
ment having possession of a forest under a mort ge
is jointly interested therein with the mortgfor
within the meaning of the Madras Forest -'t,
s. 33. Ashtamurthi v. Secretary of Stateor
India .... I. L. R. 13 Mad. 32

Rule 12 of rules under Po st

Act — Removal of leaves from classified
The mere removal of leaves from classifie '
on unreserved land does not constitute a bn
rule 12 of the Madras Forest Act, 1882. ';
Empress v. Sivanna . I. L. R H Mia

MADRAS GENERAL CLAUSES
(I OF 1891).

See Madras Rent Recovery Act. ^■
I. L. R. 22 Ma

s. S— Appellate jurisdiction vi

Court in cases instituted under enactments »«
time of institution of suit but repealed before a
of Appeal— Civil Procedure Code (Act XIV oj
s, 540 — Appeal. A suit was instituted in a I'
Court on 5th August 1897, in which a clan
made to the office'of karnam. In October, i
notification was published under s. 2 of Madra* w^
prictary Estates' Village Service Act (Mad. i'' "
of 1894), the effect of which was that, as frci^'^
date of the notification, s. 11 of Mad. Reg. AV
1802, and Mad. Reg. XXIX of 1802, ceas; »
apply to the office of karnam. The Judge heei w«

( 7709 )

DIGEST OF CASES.

( 7710 )

KDEAS GENERAL CLAUSES ACT

OF 1891)— cowcW.

_ . 8. 8 — concld.

»v| which had been filed prior to the notification,

ardismissed it. Upon an appeal being preferred,

il IS objected that the High Court had no juris-

(ii,on tohearit. Held, that the Court had juris-

di on. The appeal was from the judgment of a

C« t exercising original jurisdiction ; and the High

€c t, if Madras Act 11 of 1894 had not been passed,

Wild have had appellate jurisdiction, by virtue

of . 540 of the Code of Civil Procedure, in suits

br ght under the said Regulations. In cases

wle the Court of first instance had jurisdiction

to *ertain the suit when it was instituted, and the

1 > Imd a right of appeal when the suit was in-

, the appellate jurisdiction of the High

-aved by s. 8 of the Madras General Clauses

V loill, unless the right of appeal is expressly

taaaway. Sadasiva Pillai r. Kalappa Muda-

i.l;(1900) . . L L. R. 24 Mad. 39

MORAS HARBOUR TRUST ACT (II
? 1886).

See Bill of Lading.

1. L. R. 19 Mad. 169

— j 88. 70, 87 — Immunity from action —

Br,-Jl of contract— Contract Act (IX of 1872),

ti.'M, 152 — Liability of bailees for hire for loss

of tods — Negligence — Onus of proof — Bye-laws,

vai'.tyof. When goods which have been entrust-

fd bailees for hire are lost, it hes on the bailees to

*h( that they have taken as much care of the

" . as a man of ordinary prudence would, under

ircumstances, have taken of his own goods

lar kind, and that the loss occurred not-

ling such care. If they fail to satisfy

t on that point, they are hable for the loss.

HARn, J. — The provision in s. 87 of the

Harbour Trust Act, 1886, to the effect that

'i, its officers and servants shall not be

I damages for any act bond fide done or

'<> be done by them in pursuance of the Act

apply to all causes of action, and, inter

a suit in respect of a breach of contract

lie Board. The immunity there given

inly to those cases in which there is an act

I'urporting to be done in pursuance of the

'<; fact that the Board has worked under

i-ions of a statute does not prevent it from

- into a contract ; and the section docs not

■i case where the party aggrieved complains

•ach of such a contract on the part of the

By 3. 70 of the Madras Harbour Trust Act,

■'' Board is empowered to make bye-laws

•'ception, removal, and porterage of goods.

\' framed under this section provided that

desiring to store cargo must apply to the

of the Board for such space as they might

I 'id that such applications would he grant-

1> terms as the Board might approve, and

• i with the reservation that the Board, while

~""i ail reasonable precautions, would accept no

MADRAS HARBOUR TRUST ACT (II
OF 1886)— contd.

s. 70— concld.

responsibility in respect of property stored upon its
premises, which would remain at the risk of the
consignees or owners. Hell [per Collins, C. J.,
and Boddam, J.), that this provision was not a bye-
law for the reception or removal of goods within the
meaning of s. 70 of the Act, and was vUra vires.
Trustees of the Harbour, Madras v. Best & Co.
I. L. R. 22 Mad. 524

s. 87 and s. Ql— Maintenance

harbour caiisiiiq encroachment on seashore — Liabil-
ity of a public body for maintaining worl.s autho-
rized by statute — Common law liability where not
expressly excluded by statute — Limitation. A har-
bour, which was in the first instance constructed by
Government, was, by the Madras Harbour Trust
Act, 1880, vested in trustees, together with the fore-
shore uithin the limits of the port. Prior to the
date of the Act, an erosion, by the action of the sea,
of a portion of the foreshore had commenced, in
consequence of the existence of the harbour ; and a
revetment or barrier of stones had been built to
counteract it. The trustees subsequently, but
prior to 1891, extended the arms of the harbour, and
in 1895 the result of the continuous encroachment
of the sea was that a part of the said revetment
or barrier of stones and some land was washed away.
Plaint ff was the owner of land adjoining that which
was so washed away and the sea also encroached
upon and injured plaintiff's land and the buildings
upon it. The Madras Harbour Trust Act contains
no provision for the payment of compensation by
the trustees. By s. 61, the trustees are empowered
to perform all works necessary to carry out the
objects of the Act. Plaintiff sued the trustees to
recover damages for the injury caused to his land
by their maintaining and extending the arms of the
harbour, as erected when the Board of Trustees was
created, without taking steps to erect such buildings
as would prevent the sea from encroaching upon
and injuring the plaintiff's land. Held (atlirming
Shephard, J.), that the plaint containing the above
averments of fact disclosed no cause of action. The
dates upon which damage to the plaintiff's buildings
was alleged to have occurred were 25th December
1897 and 9th and 10th April 1898 respectively.
By s. 87 of the Madras Harbour Trust Act, no suit
shall be commenced against any person under the
Act after six months from the accrual of the cause
of such suit. The plaint was originally presented
on 9th July 1898, and it was amended on 13th
September 1898. On the day upon which the six
months from 2r)th December 1897 expired, and until
the day before the plaint was presented, the Court
M'as closed. By the same section it is provided that
no suit or other proceeding shall be commenced
againstj anj' person for anything done or purporting
to have been done in pui"suance of the Act without
giving to such person one month's previous notice
in writing of the intended suit or proceeding, and of
the cause thereof. Two letters had been written on
behalf of the plaintiff. The first of these, dated

{ 7711 )

DIGEST OF CASES.

( 7712 )

MADRAS HARBOUR TRUST ACT (II
OP 1886)— conc'd.

s. 87 and s. 61— condd.

14th April 189S, represented the damage caused to
plamtiff's property as above set out, and notified
under s. 87, if that section should apply, that if the
amount of damage suffered and assessed by plaint-
iff in the said letter should not be paid on or before
the expiry of one month from the date thereof,
legal proceedings would be instituted to lecover
the damage without further notice. The second
letter, dated 11th May 1898, referred to further
damage suffered, and called upon defendants to
pay an increased sum, failing which action would be
brought to recover such sum together with a further
sum representing any further damage that might
be done to the property by the sea before the suit
should be filed or heard. Tlie letter stated the
ground of complaint to be that the encroachment
of the sea was the result of the harbour gi'oynes by
which the action of the sea had been affected, that
defendants had acted illegally and negligently in
maintaining and extending those grojmes and so
causing the encroachment, and that by so doing
they had caused the foreshore vested in them to be
washed away and the sea to be let in to the plaintiff's
premises, thus causing the damage complained of
which defendants had taken no steps to prevent.
Held, per Sheph.vkd, J., that the plaintiff must be
deemed to have commenced the suit in due time
since it was owing to the act of the Court itself that
he was prevented from presenting his plaint till the
day upon which it was filed. Also that the notice
was sufficient, and that on the facts of the case
s. 87 had no application. Seinbh : That, though a
special rule of limitation was prescribed by the Act,
s. o of the Limitation Act applied. Per O'Farrell,
J. — That the last clause of s. 87, which provides that
neither the Board nor any of its officers or servants
shall be liable in damages for any act bo7id fide done
or order to be done in pursuance of the Act, had no
reference to the present case. That section applied
only to cases of acts done without legal authority
or in excess of legal authority, but under the bona
fide belief that they were covered by such authority.
Per BODDAM, J. — That the cases in which it has
been held that no action lies for non-fea.sance apply
only to highways and have no application to the
present case. Per Davies, J. — The liability of the
trustees, in the absence of any statutory duty ca.st
upon them to msure plaintiff from loss, ^\as con-
fined to the maintenance of the particular work they
took over, and, if there was any general obligation
to protect the plaintiff's property, it lay on the
Government, who constructed the harbour, the
Legislature not having imposed it on the trustee,-.
Ismail Sait v. Trustees of the Haebottr.
Madras . . . I. L. R. 23 Mad. 389

MADRAS HEREDITARY VILLAGE
OFFICES ACT (III OF 1895).

s. 3 (3) — Village officers — Suit for lands

forming emoluments of the office of Ambalam —
" Head of the village " — Office in a " proprietary
estate " — Office in Inam village — Grant confirmed I

MADRAS HEREDITARY VILLA
OFFICES ACT (III OP 1895)4^1
s. 3{3)~concld.

hy GovernmevJ.— Jurisdiction of Cioil Com
erUertam suit. A suit was brought to recover
which formed the emoluments of the office of • ,
lam m a certain village. It was found o'li
evidence that the holding of the office of Amho
m that village did not constitute the holder the '
of the village. On the question being raised
whether the suit wa-; cognizable by a Ci\al Cbu ■
Held, that the office fell within the meani
ci. (3) of s. 3 of Mach-as Act III of 1895, inata
as It was not one of the offices therein exer. ;c
and was an office in a " proprietary e.state," n. ;1
an Inam village the grant of which had beei j
firmed by the Government. The suit was ii
fore not cognizable by a Civil Court. So(j:Ij

PaNDIA ThEVAN V. VeLATHLIPPA THEV.4>f (19*)

I. L. R. 26 Mad 18

!• s. 5 Attachment of get

crop. By s. 5 of the Madras Hereditary Ma
Offices Act, the emolument-, of vUlage offices a. n
to be liable to attachment. Held, that an aic
ment by a decree-holder of a crop growing c ce
tain lands in a zamindari, which were thena
service lands held by the judgment-debtcis
village servant, had been rightly set aside. OJ
NAM Naidu v. Latchanna Dhora

I. L. R. 23 Mad49!
Emolumet (

village office — Non-liability to attachnent
by Courts. The proliibition in s. 5 of the :dra
Hereditary Village Offices Act (III of 1895) ains
attachment and sale by the Courts is absoliit :; :
deprives Civil Courts of all jurisdiction ■
directions for sale of inam lands granted a-
ments for the performance of duties conno i
the offices referred to in that section. \
directing the sale of such lands is ultra vire

OF ViZlANAGRAM V. DaNTIVADA ChELLIAH i -

I. L. R. 27 ML 8(

S.13— ,

See Ees judicata.

LL. R. 30Ma'3SC

ss. 13, 21—

See Jurisdiction . I. L, R. 30 Mat 126

s. 21—

See Madras Revenue Recover' Aof ,
s. 52 . . 1. L. R. 23 Mi . 671

MADRAS IRRIGATION CESS ACT
(VII OF 1865).

See Madras Rent Recovery Ac:''- •*•
I. L. R, 7 M . 188

1. s. 1 — Water-cess — Overfl

Government works — Water supplied or <
ptirposes of irrigation. Surplus water from
ment irrigation works flowed on to land of tb| iiii|i'-
iff which they were in the habit of cultivati, "■'*"•
dry crops and stagnated there rendering su tulti-

( 7713 )

DIGEST OF CASES."

( 7714 )

ILDRAS IRRIGATION

711 OF 1865)— concW.

CESS ACT

s. 1 — concld.

v!on impossible. The plaintiils ditl not want the
» or to flow on to tlieir land, but, being unable to
e; vie it, planted paddy as the best crop to culti-
r.,i under the above circumstances. Water-cess
w, levied on the plaintiffs under colour of Act VII
olSG5: — HeU, that the water was not .supplied or
u.':. for purposes of irrigation within the moaning
oijCt VII of 1865, s. 1, and the plaintiti's were not
li»,o to pay the water-cess. VENKAT.\pp.4YyA v.
(Xlectob of Kistna . I. L. R. 12 Mad. 407

' Lands irrigated

Ht } KiMna anicut — Water-cess — Optional or com-
pviry twe of water. A raiyat occupying land in
th Kistna delta made no application for tlie supply
of ater, but water from the irrigation channels
do'd from time to time on to his land from irri-
j^&\ lands of a higher level, and ho had no option
as I whether to accept or refu.se the supply. No
iniasod benefit was derived from tho water by the
rait. A sum having been levied from him on
aciimt of water-cess, he now sued to recover the
(UiJint : — Held, that tho plaintiff was entitled to
rec er. Venkatappayya v. Collector cf Kistna.
l. I R. 12 Mad. 407, followed. Krishxayya v.
Se-etary of State fob India

I. L. R. 19 Mad. 24

See Madras Rent Recovery Act, s. 11.
I, li. R. 15 Mad. 47

Mi!)RAS LAliD REVENUE ASSESS-
IDNT ACT (I OF 1876).

~]- ^^ Parties to alien-

a'«.|" who are— Means only the parties to the.
!»ir\uiar alienation in respect of which the appll- ,
■'' is made. The ' ' parties to an alienation ' '
i.curronce is necessary for separate regis-
:id sub-division by tho Collector under \
'.ft 1 of 1876, are the parties to the particu- '
uion in respect of wliich tho application
md not tho parties to any transaction i
y form a link in tho alienor's title. Tho
of the Act are not confined to alienations
■ giatered proprietor only. Collector of
fKER Batcha Sahib (190G1

I. L. R. 30 Mad. 106
8. 2 — Separated registration and ,
' of revenue — Suit for declaratory decree \
■ntial relief— Specific Belief Act, s. 42 \
"Icr of parties— Madras Regulation, XXV i
"• 6. Want of concurrence of parties \
"7. A suit was brought by F against tho i
of State for India in Council for a do- '
that the order of the Madras Government
the Collector to cancel tho separate re- '
and assessment of a village in tho Siva- '
iiindari in his name was ultra vires and
' lie plaintiff's claim to be separately regis-
•■'"^.s the holder of the said village depended

OL m.

MADRAS LAND REVENUE ASSESS-
MENT ACT (I OF lQie)—contd.

I s. ^^—contd.

upon tho proper construction to bo put on grant
l' of the village contained in two documents, the one
dated the 13th December 1872 and the other being
i a document dated the I4th May 1877, executed by
the Rani and her children. Subsequently to tho
grant referred to, an application was preferred by
the Rani and addressed to the Collector requesting
him to separately assess the village and register it in
the name of F. This application was never pre-
; sentcd owing to the death of tho Rani, who was
; succeeded by the father of the present zamindar,
who executed, on the 22nd February 1883, a deed
i of release in favour of F ratifying the grant above-
mentioned in the following terms : " Whereas the
; village of Kondagai .... of my zamindari ....
has been granted to you in perpetuity by the late
Rani Kattama Nachiyar and others and' has been
in your pos.sossion according to tho terms of the
documents executed by thom to you therefore on
the 13th December 1872 and on the 14th May 1877,
and whereas I have received from you R 2,000
as the consideration for my ratifying j'our rights
in accordance -with the terms of the said documents^
and for relinquishing whatever rights I possess
therein, I hereby ratify your rights of every de-
scription in the said village and relinquish all my
rights therein in your favour. AA'herefore as per the
terms of tho said documents, dated tho 13th Decem-
ber 1872 and tho 14th May 1877, you and your heirs
and assigns shall hold and enjoy tho said Kondagai
village .... in perpetuity .... with full pow-
ers of alienation by sale, gift, or otherwise. You
shall pay to my zamindari tho sum of R3,500, tho
poruppu fixed on the said village, as well as road-
cess, mangamai, etc., according to custom," and he
applied to tho Collector for separate assessment and
registration of the village in the name of F on the
25th March 1883. On tho 29th March 1883 F also
made a similar application, but, jxjnding disposal,
tho present zamindar's father died, and was suc-
ceeded by his son, the present zamindar, who raised
objections, and the application was not granted.
On the 23rd May 1887 the present zamindar granted
a lease of tho zamindari to O, S, and A', who exe-
cuted a release guaranteeing F undisturbed posses-
sion and enjoyment of the village, and accepted his
position such as it may have been at or prior to the
date of the execution of tho lease. On tho 23rd
January 1890 the zamindar executed in favour of
F a deed of release, which, after reciting the grant
from the Rani, the deed executed by tho zamindar's
deceased father dated the 22nd February 1883, and
a further payment of R3,500 by F, contained tho
following covenant : ' ' Therefore I forfeit and
relinquish the right I profess to have in me to ques-
tion tho said permanent lease or tho terms of the
said lease deeds, and I hereby ratify your right.
You and your heirs shall hold and enjoy tho said
villages absolutely according to the terms of the
aforesaid permanent lease deeds." F then applied
by petition, dated the 13th March 1890, to the Col-
li N

< 7715 )

DIGEST OF CASES.

( 7716 )

MADRAS liAND REVENUE ASSESS-
MENT ACT (I OF 1876)— contd.

s. 2 — contd.

lector for separate registration and assessment of
the said village, but on notices being sent to the
zamindar and the lessees, they filed objections which,
after due enquiry, were overruled by the Collector,
who ordered separate registration and fixed the
assessment. On appeal, the Board of Revenue sup-
ported the action of the Collector. Whereupon the
lessees appealed to the Government of Madras on
the 21st September 1891, and the Government of
Madras on the 14th November 1891 cancelled both
the separate registration and the separate assess-
ment. Under the circumstances, F, claiming to be
the duly registered holder of the said village, sued
the Secretary of State for a declaration that the
order of the Madras Government, dated the 14th
November 1891, directing the Collector to cancel
the separate registration and assessment of the said
village was ultra vires and illegal — and the lessees
sued F for the balance of poruppu, mangamai, and
road-cess, with interest alleged to be due on the said
village for Fasli 1300 -.—Held, that F was bound to
pay the lessees R 3,500 poruppu with mangamai
and road-cess, whether liis village was separately
registered and assessed or not. Held, that the suit
by F for a declaration that the order of the Madras
Government directing the Collector to cancel the
separate registration and assessment of the village
previously made by him was illegal and ultra vires,
could not be maintained with reference to s. 42,
Specific Relief Act, inasmuch as the order had been
already carried out. Held, also, that, if the general
words of the prayer " for such other relief as the
circumstances of the case may require ' ' were to be
taken as including a prayer for consequential relief,
then the suit was bad for misjoinder, inasmuch as
the zamindar and the lessees who were interested
parties were not joined. Held, also, that not only
the person applying under Act I of 1876, s. 2, for
separate assessment and registration must be en-
titled thereto, but also that the parties to the
alienation must concur in the application. Fischer
V. Secretary of State for India. Orr v.
Fischer . . . I. L. R. 19 Mad. 292

Held, by the Privy Council, reversing the above
decision, that by the efEect of ss. 5 and 6 of the
Madras Act I of 1876 the decision of the Collector,
in a case within his jurisdiction, whether for or
against separate registration of a portion alienated
from a zamindari, when once duly sanctioned as pro-
vided by that Act, can only be questioned in a Civil
Court. Under ss. 7 and 8, the apportionment of the
assessment may be appealed from the Collector to
the Board of Revenue, and power is reserved to the
Governor in Council to order re-adjustment of the
separate assessment if fraud or material error should
appear. Separate registration, on the other hand,
is a matter of private right. The grantee of the
perpetual lease of a village, alienated thereby from
a zamindari, sued for a declaration of the invalidity
of an order of the Government, inasmuch as it

MADRAS LAND REVENUE ASSE
MENT ACT (I OF 1876)-<;oncW.

s. 2 — concld.

directed the cancellation of the Collector's or
after sanction by the Board for the separate rt
tration of the village : — Hdd, that this declara
should be decreed. The objection that the suit i
contrary to the law enacted in s. 42 of the Spc i
Relief Act, 1877, was not sustainable. No fuf
relief could have been required by the plain i
The effect of the declaration itself for which he .
sued would be sufficient to maintain the Collect '
original order, which was valid in law, while i^
order of the Government directing its cancell? n
was not legal and was void. Nor was the r
defective for want of parties. Another suit h'.'c
on appeal with the above, having been brough )]
the lessees of the entire zamindari, against thesii
grantee, raised the question, — what was the li
gation entered into by him in respect of payrni
of the revenue upon separate registration amse
parate assessment of the village. This involvec h(
construction of terms in the documents entitliii'hf
grantee to the village, and these, according tc h(
plaintiffs, obliged him to pay a fixed sum tche
zamindari -.—Held, that he was only liable, afte he
registration and assessment, for burdens lawUj
incident to the separate holding, and that they in
to be discharged by direct payment by him t he
Collector. Fischer v. Secretary of State or
India. Orr v. Fischer . I. L. R. 22 Mad. 70
L. R. 26 1. J 16
3 C. W. ] 16

2. ^ ss. 2 and 6— Suit for dera-

lion of rigid to separate registration and am-
merit — Madras Eegidation XXV of 1802, sS—
Want of concurrence of parties in suit. An an-e
of a portion of a zamindari is entitled to soi
registration and assessment under Madras .\i
1876. A Court has power to order separatr
tration and assessment under s. 6, although
parties concerned do not concur in applying:
the meaning of s. 2. Kamalammal f. -
Naicker . . . I. L. R. 19 Mad 308

s. Q^Madras Regulation XX "/

1S02, s. 9, Madras Regulation XXVI of IS''
An application to a Collector to grant si
registration of a portion of a permanently-
estate which has been alienated by a Court
one under the provisions of Regulations X2v
XXVI of 1802, and not under Act I of 1870.
MARAzu V. Seshamma . I. L. R. 22 Macfti38

- s. 7— '

See Limitation — Statutes op I'ITa*
TioN — Madras Act I op 1876, s.,

MADRAS LOCAL BOARDS ACT ( OF
1884).

See Local Boards Act (Madras)
1. s. 27 and ss 128, 15<-Sttit

against Talukh Board — Suit framed errone4y—
Plaint, frame of — Gompensnfion for wron'tl oel

^17 )

DIGEST OF CASES.

•IS )

[ADRAS LOCAL BOARDS ACT (V OF ] MADRAS LOCAL BOARDS ACT (V OF

1884)— contd. 1884)— cont I .

8. 27 — concld.

nmitted under the Act — Special period of liviita-
«. In a suit brought against, among others, the
esident of a Tahikh Board constituted under
cal Boards Act, 1884 (Madras), to recover land

■ which the panchayat of a Union witliin the
ukh had erected a pubhc latrine, it was pleaded

lit the suit as against abovementioned defendant

■ s ^^Tongly framed, and also that it was barred
1 the special rule of limitation contained in s.
li of that Act. The plaintiff asked for no
i 'jndment, but proceeded to trial : — Held, that
t suit was not maintainable under the Madras
l-al Boards Act, 1884, s. 27, on the ground
t.,t it was not brought against the Talukh Board.
(, ere : Whether s. 156 is apphcable to suits
oierthan suits for compensation for wrongful
aji committed under colour of the Act. Ameer
S,[iB V. Venkatakama I. L. R. 16 Mad. 296

I. and s. 156 — Notice of action

-'orm of suit — Plaint, frame of — Injunction
ai'nat Talukh Board. The plaintiff built a
w on his land situate within the hmits of the
SAganga Talukh Board. The Local Board called
U]in him to remove the wall as constituting an
oiiruction, and gave him notice that in default of
hi;loing so it would be demolished by the author-
it;L The plaintiff now brought a suit against the
Pijident of the Talukh Board and the Chairman of
thlUnion, within the limits of which the land was
j^il.ted, for an injunction restraining the defend-
in from interfering with the wall. No notice of
was given under the Local Boards Act, s. 156.
I mrts of first instance and first appeal no
11 was taken to the frame of the .suit with
■:■ to the provisions of s. 27 : — Held, (i) that
udants should not be permitted on second
to raise such objection to the frame of the
ii I that previous notice of action under s. 156
t necessary. President, Talukh Board,
N'JA V. Narayanan I. L. R. 16 Mad. 317

8, 43 — Public servant — Sanitary In-

A Sanitary Inspector appointed by the
■'•■ lard is a public servant within the meaning
1 Boards Act, Madras, 1884, s. 43. Queen-

-S V. TiRUVENGADA MuDALl

I. L. R. 21 Mad. 428

— 88. 57, 64 and \49—]Vrowjful col-

<>f land cess from inamdar — Suit for its

■I "gainst President, District Board— Maintain-

'■' suit. A sum of money was collected from

■"dar as land cess under s. 57 of the Madras

i'oards Act. 1884. The amount had been

1 by the Collector of the district under s.

I cted by him and subsequently paid to

"t of the District Fund under s. 149 of the

^' ^ The inamdar filed a suit against the

•nt of the District Board, to recover the

t on the ground that it had been illegally

'd from him. There was no claim for

'3. On its being objected that the suit was

B. 57 — concld.

wrongly brought against the President of the
District Board : — Held, that the suit was not
maintainable. The as.scssment and the collection
of which plaintiff complained were not the acts
of the defendant, who could not be called upon
to make good the amount said to have been
wrongly collected merely because it had even-
tually been paid over to the credit of the District
Board. H.arischandra Devu v. President,
District Board of Ganjam (1900)

I. L. R. 24 Mad. 114
88. 64, IZ—Tax payable on land —

Favourable tenure — Claim by landholder of more
than one half of the tax from tenant — Invalidity of
custom for tenant to pay whole tax. A tenant paid
an annual rent of R64 to the landholder, the tenure
being of a nature dealt with by sub-s. {Hi) of s. 64
of the Local Boards Act (Madras), 1884. The land-
holder distrained on the tenant's property in respect
of the whole amount of local cess payable in respect
of the land, contending that it should be calculated
on the rent V|alue, which was admittedly ft" 10. It
was found that under a custom subsisting in the
district the whole amount of the local cess was pay-
able by the tenant -. — Held, that, having regard to
s. 73 of the said Act, such a custom must be un-
reasonable and invalid. The words " favourable
rent " in s. 64, sub-s. [Hi), of the Act mean rent
which, at the time of the assessment being fixed, is
favourable as compared with the ordinary rent of
similar lands in the vicinity and has nothing to do
with the question whether the rent, as fixed at the
time when the lease was granted, was favourable or
unfavourable. Bhupatirazu v. Kamasami

I. L. R. 23 Mad. 268

. ss. 77. 78, 81, 94, \Q3—P,nal Code

(Act XLV of 1S60), ss. <J9, 1^6, :i').3— Service of
notice of demand of house-tax — Omission to fill up
the house-register completely — Illegal distraint —
Resistance to distraining o/fictr. A notice of demand
of a house-tax under the Madras Local Boards
Act (Madras Act V of 1884) was affixed to the house.
The owner, who was a potter and cultivator by
occupation, was in the village at the time. He did
not pay the tax. A warrant of distress was issued,
the house-register not having been completely
filled up, and a bucket and spade belonging to the
defaulter were attached. The defaulter success-
fully resisted the distraint : — Held, that the provi-
sions of the Act had been sufficiently complied with
as regards the preliminary steps for making the
demand and the service of notice, and the fact that
the spade and the bucket were protected from
attachment under s. 04 did not justify the resist-
ance, and accordingly that the defaulter was
guilty of offences under Penal Code, ss. 186 and 353.
Oueen-Emfress v. Poomalai Udayan

I. L. R. 21 Mad. 296
, 8. 87, cl. 3 — Government stores and

equipages — Non-liability to tolls. Stores and carts
11 N 2

( 7719 )

DIGEST OF CASES.

{ 7720

MADRAS LOCAL BOARDS ACT (V OF

1884:)— concld.

s. 87 — concld.

belonging to the Government jails come within the
words " Government stores and equipages " in cl. 3,
s. 87, Act V of lS9>i, and are free from tolls under
that Act. Queen-Empkkss v. Kutti Ali

I. L. R. 20 Mad. 16
s. 95 — This Act throws on Local

Boards the duty of making necessary improvements
in roads by necessary implicatio7i — Board not liable
for damage caused by suck works, when not negligently
carried out. The duty imposed on District Boards
hy s. 95 of Madras Act V of 1884 to construct
and maintain roads casts on them by necessary
implication the duty of constructing and maintain-
ing the"necessary culverts and tunnels under them.
This imphed power to construct and maintain such
culverts and tunnels is not merely permissive, to
be exercised only when no injury will be caused to
others thereby, but an imperative duty cast on the
Board by the Act. No suit for injunction or
damages will he against the District Board for any
injury caused by the construction or improvement
of such works when such works or improvements
are necessary in the interests of the public for the
maintenance of the road and there is no negligence
in the carrying out of the work. Sankara Vadivelu
Pillai V. Secretary of State for India, I. L. E. 28
Mad. 72, distinguished. Aiyasami Aiyar v. The
District Board, Takjore (1907)

I. L. R. 31 Mad. 117

ss. 98 and 100—

;iSee Penal Code, s. 188.

I. L. R. 20 Mad. 1

■ s. 128 and s. 156 — Suit for malicious

prosecution against officers of Panchayat Union —
Limitation. A suit was brought against the Chair-
man and accountant of a Panchayat Union for
damages for malicious prosecution more than six
months after the close of the criminal proceedings,
and it was contended for the defendants that the
suit should have (under s. 128 of the Local Boards
Act) been brought against the Talukh Board, and
that thesait was not instituted within s^x months
of the accrual of the cause of action as required by s.
15Gof thesameAct:— i^eZ(i, (i) that the defendants
were liable for torts committed by them, and that
notwithstanding the Local Boards Act, s. 128, the
plaintiH was not confined to his remedy against the
Talukh Board ; (ii) that the Local Boards Act, s.
156, was not applicable unless it were proved that
the Act complained of was done by servants of the
Talukh Board within the scope of their authority
as such, actmg or purporting to act under the Act.
Annaji v. Subramanya I. L. R. 13 Mad. 442

MADRAS LOCAL FUNDS ACT (IV OF
1871).

I — Tolls where leviable. Under the

Local Funds Act (Madras Act IV of 1871), tolls are
only leviable at toll-bars, and tolls are not leviable

MADRAS LOCAL FUNDS ACT (IV 0

\Q11)— concld.

on carts which enter a circle by a public road o
which there is no toll-bar. Quare : Whether to
would not be leviable on a cart approaching a tol
bar, and, to evade payment, making a detoi
otherwise than by a road available to the publi
Govindarajultj v. Laksuuman

I. L. R. 6 Mad. C

MADRAS MUNICIPAL ACT (IX 0
1867).

s. 142 — President of Municipali

discretion of, to grant licenses. The President [
the Municipality has a discretion to grant or m\\
hold a license under Act IX of 1867, s. 142. }
exercise of that discretion does not render him lia I -
to an action. Moonee Ummah v. Municipal Cc
missioners for Town of Madras . 8 Mad. L

MADRAS MUNICIPAL ACT (V C
1878).

ss. 103, 105, sch. A, class -

Madras Act I of 1SS4, sch. A, class I — Pro ■
sional tax — Half-yearly payments. Although d
tax levied on professions under s. 103 of the Cit^ f
Madras Municipal Act, 1878, is described asayeff
I tax, a half-yearly liability is incurred in resj t
I thereof by the tax-payer. IF, having been asse; d
under class I, Sch. A of Act V of 1878, Madras o
profession tax at the yearly rate of filSO, paia
moiety thereof for the first half of the year 188 is
provided in s. 105 of the said Act. When the x
for the second half-year became due, Madras &, I
of 1884 had come into force, and W was assessecljr
the second half of the year under class I of SclA
of that Act at R125, being a moiety of the yely
tax on the same class : — Held, that the assessi'at
was legal. Wilson v. President, MuKicki
Commission, Madras . I. L. R. 8 Mad. %9

1. s. IIQ— Place of public wo. ■■•

— Feeding Brahmins. A building used in win
in part for purposes other than those of publi
ship is not exempt from taxation under s. 11!' '
City of Madras Municipal Act, 1878. The i*
of Brahmms is not an act of public worship v
the meaning of that section. Thambc <.

SXJBRAYA ChETTI V. ArXJNDEL

I. L. R. 6 Maa,
2. and ss. 120, 123-

land—Tax. S. 123 of the City of Madras Muii
Act, 1878, which defines the annual value of a 1 "■-
buUding, or land, for the purpose of taxation Je*
the Act, has no reference to the alternative gi\i' "^
the President by s. 120 to levy a fixed aniiu:«»*
(not exceedmg K.4 per ground) on lands up''^'"*
priated to any buildmg, or occupied by nativ 'U
mth their appurtenances. Ahmed Unnis&4 J'^^
Sahiba v. Arundel . I. L. B. 7 Ma

- - s. 123— Tax- on buildings— HP''o

built by Government— Standard of hypot'-:^
rent. Under s. 123 of the City of Madras A l^*
pal Act, the gross annual rent at which a bi|^
might reasonably be excepted to let from moii

( 7721 )

DIGEST OF OASES

( 7722 )

B.DBAS MUNICIPAL ACT (V OF

378)— con/</.

. s. 123 — concld.

a ith, or from year to year, is, for the purpose of
ai ssment t<^ house-tax under the Act, to be deemed
ti s the annual value of such building. The Lying-
ir [ospital in Madras, built and supported by Gov-
11 aent, having been assessed by the President of
tl Municipality as on a rental of Rl,000 a month,
[1 Magistrates, on appeal, reduced the assessment,
ti;aig that R7,920 would be a reasonable rent,
h; ng regard to the letting value of the building in
tl leighbourhood ; but, at the request of the Muni-
ci lity, they referred the following question to the
H I Court : Whether (as contended by Govern-
in ■ the property in question should be valued and
a« -sed on the rent, which, on the property being
of od in the open market without reserve, a person
d( ous of securing it would have to pay ; or whether
la ;ontended by the Municipality) it should be
va?d and assessed on the highest reserve rent
wl h an owner of the property offering it in the
oj: market wotild reasonably demand and below
wl h sum he would not be wilUng to let : — Held,
th the standard value was what the hypothetical
temt requiring the building for use as a hospital
wid be willing to pay, rather than rent a less
!>u ble building and adapt it to his requirements
at s own expense, and that in this sense the con-
tei;on of the Municipality was correct. Secbe-
ta| of State v. Madbas Municipality

I. L. R. 10 Mad. 38

— s. 192, case referred under —

^i;]' o/ Municipal Commissioners to levy water-

'1 Condition precedent — Independent power — Con-

of statutes. The Madras Municipal Act

" private " Act. When a public body is

- d by the Legislature with the duty of mak-

"i^jublic improvements, and powers are entrusted

lo for such purpose, those powers ■will not be

''■* to a restrictive construction, though they

^nth private rights. A statute is not to be

'1 like a contract. The power to impose a

M>t contractual and needs no correlative

Vii equitable construction is not permissible

'ig statute where it is possible to adhere to

1 < of the statute. B resided within the City

1-^ and occupied premises within a division

' t of the city in which no water had been

' d by the Municipal Commissioners. The

-loners levied a water-tax on 5 in respect of

nises. B appealed under s. 189 to the

f and two Commissioners, who decided

was liable to pay the tax. On a case

■ the High Court : Held by Innes, J., and

AMI Ayyar, J. (Kerkak,' J., dissenting),

'II the true construction of the Act (V of

'• right of the Commissioners to levy the

x^ was independent of the duty imposed

tommissioners to supply water. Branson

iPAL Commissioners, Madras

I.Ii. R. 2Mad. 362

Coii-^- — ^^' ^^'^' ^^® — President of Municipal
"^y^sioners— Discretion as to necessity of cleans-

MADRAS MUNICIPAL ACT (V OP
1878)— concW.

ss. 317, Z\S—coiKld.

ing tank likely to prove injurious to health. By
s. 317 of the City of Madras Municipal Act, 1878,
the President of the Municipal Commissioners was
invested with a discretion as to the necessity of
cleansing and filling up tanks and wells and draining
off stagnant water likely to prove injurious to the
health of the neighbourhood, and by s. 318 was
empowered, on neglect of the owner to comply with
a requisition to do the necessary work, to get the
work done and to recover the costs in the manner
provided for the collection of taxes. No appeal was
allowed by the Act against the President's decision.
HeM, in a suit by the Municipal Commissioners to
recover from the defendants the cost of draining
and cleansing a tank, that it was not open to the
defendants to prove that the tank was not likely to
prove injurious to the health of the neighbourhood.
Municipal Commissioners for the City op
Madras v. Pabthasaradi I. L. R. 11 Mad. 341

s. 4:3^— Water rate— Liability of

Commissioners to a suit for compensation for not
supplying water and collecting rate. By the pro-
visions of the City of Madras Municipal Act, 1878, if
a water rate is levied by the Commissioners, they are
bound to supply water for house service to eveiy
rate-payer who desires and provides the necessary
works to connect his premises ^rith the main, which
ought to be within 150 yards of his premises, and
the rate-payers are bound to pay water-rate
whether or not they avail themselves of the privilege
of house service. If the Commissioners do not
perform this duty, the rate-payer has a remedj^ by
action and may recover compensation, either under
the provisions of s. 433 (which provides that a
person aggrieved by the failure of the Commis-
sioners to do their duty may bring his action, and
the Court may either direct the duty to be performed
" or make such order as to the Court may seem
fit ") 01 under those of the Statute of Westminster.
SeiiMe : If the Court does not order the execution of
the works under s. 433, the only other order it could
make would be an order for reasonable compensa-
tion. The Legislature intended the water rate
to be a payment for a benefit conferred, and the
tax should not be levied till water can be supplied.
If in part of the city the Commissioners are able to
supply water and desiie tn <)bt<aiii at once a return
for their works, they should apply to the Govern-
ment to exempt the rest of the city from the
operation of the Act. Municipal Commissioners,
Madras v. Branson . I. L. R. 3 Mad. 201

MADRAS MUNICIPAL ACT (I OF
1884).

8. 103 and s. 110 — Profession

tax — Liahility of memher of a firm to pay separate
tax in respect of a Government appointment, his
qualification for such appointment (Government
Solicitor) being the profession which he also carries
on jointly with the firm — Meaning of " person "
under the Act. A member of a firm of Attomeys-at-

( 7723 )

DIGEST OF CASES.

( 7724 )

MADRAS MUNICIPAL ACT (I OF

1884)— contd.
s. 103— condd.

Law and Notaries Public, which paid the profession
tax leviable under s. 103 of the City of Madras Muni-
cipal Act, 1884, also held the appointment of
Government Solicitor. He practised no other
profession or business than that exercised by his
firm ; and the duties of Government Solicitor could
not be performed by any person other than a prac-
tising attorney. The Municipality of Madras
having demanded profession tax in respect of the
appointment of Government Solicitor in addition
to the tax paid by the firm of which the holder of
the appointment was a member : — Held, that the
tax was rightly levied. Barclay v. Peesident,
Mfnicipal Commission, Madras

I. L. K. 23 Mad. 529

2. ■ and s. 190 — Profession fax —

Inspector-General of Police. The Inspector-
General of Police, whose official place of business
with the main body of clerks is in Madras, went on
tour, and during his absence the Assistant Inspector-
General in Madras signed letters for him : — Held,
that the Inspector-General was not assessable to
profession tax under the City of Madras Municipal
Act in respect of the period when he was absent on
tour. Hammick v. President, Madras Municipal
Commission . . . I. L. R. 22 Mad. 145

See Chairman, Ongole Municifality

I. li. R. 17 Mad. 453

and ss. 190, IQ^L— Profes-

sion tax — Liability of members of a firm — Extent
of appeal allowed against decision of President of
Municipality — Magistrate, jurisdiction of. A mem-
ber of a firm in Madras, another member of which
was absent, was assessed under the Madras Muni-
cipality Act to pay a certain sum for the tax on arts,
professions, trades, and callings as agents in charge
of the business of the absent member of the firm.
He complained to the President against the assess-
ment under ss. 104, 190 of the Act on the ground
that he was not liable to pay any tax as agent, etc.,
but the assessment was confirmed. He thereupon
preferred an appeal to the Magistrates : — Held, (i)
that the Magistrates had jurisdiction under Madras
Mimicipal Act, s. 192, to decide the question of the
liability of the appellant to be taxed under s. 103 ;
(ii) that although the absent partner might be called
upon through the appellant as his agent to pay the
tax due by the firm with reference to its whole
income, he was not otherwise chargeable with any
tax in respect of the business carried on by him.
Davies v. President of the Madras Municipal
Commission . . I. L. R. 14 Mad. 140

4. and Sch. A, class 1 (A), (B)

— Exercise of calling — Investment of funds of
society — Benefit Society. The business of investing
the funds of a society for interest is a calling within
the meaning of s. 103 of the Madras Municipal
Act, 1884. A society established to provide by the
subscriptions of its members for pensions for their
widows and children is a benefit society within the
meaning of Sch. A, class 1 (A), of the said Act.

MADRAS MUNICIPAL ACT (I y
1884.)— contd.

s. 103 — concld.

Where the context discloses a manifest inaccurj',
the sound rule of construction is to eliminate e
inaccuracy and to execute the true intention of e
Legislature. Jennings v. President, Munici l
Commission, Madras . I. L. R. 11 Mad. 1 3

s. 307 — Prohibition against dep i-

ing stable refuse in a street — Deposit of stable re<e
in a dust-bin — Liability of person so deposiq.
By the first clause of s. 307 of the City of Ma is
Municipal Act, 1884, the President of the Mu i-
pality " shall provide in the streets of the :y
suitable and sufficient dust-bins for the temprry
deposit of dust, dirt, ashes, kitchen refuse and ■ er
inoffensive matter excepting building, stable id
garden refuse, which shall be removed by the O'' er
thereof. ' ' By the second clause of the same sec m,
" whoever, after such provision has been nle,
deposits any of the said matters or any builUg,
stable or garden refuse in any street, paveme; or

verandah of any building " is -n-

dered liable to fine. Petitioner, having depo;ed
stable refuse in one of the dust-bins provided iic-
cordance with the Act, was charged before a W;is-
trate and fined under the latter clause of tkiid
section: — Held, that the dust-bin was notaart
of the street, and that the throwing of stable luse
into the dust-bin was not a deposit of such refi in
the street so as to constitute an offence under thaid
section. Pertjmal v. Municipal CommissiC':ks
FOR the City of Madras I. L. R. 23 Mad 64

1. s. A33— Statement of cax\ oj

action — Address of intending plainti§ — Suj}i<ncy
of notice of action. In a suit against the Mun pal
Commissioners of the City of Madras for dai gea
sustained by the plaintiff by reason of an ac( ent
occasioned to his horses through the ill-rep''
road within the limits of the Municipality, it
ed that at the close of a correspondence bet\
plaintiff and the President of the Municipal,
plaintiff, in a letter headed " Madras, " stn:
he had directed auctioneers to sell the hol^
that he would " proceed against you by
recover such loss or damage as I may have
ed," and added " kindly consider this as n
claim under s. 433 of Municipal Act (I of 1
and that the plaintiff's attorneys, in a subi^-
letter, demanded payment of ftl,000, " hi i
damages sustained by our client by reason
neglect to keep in proper repair that portion
road, etc.," and stated that, if the sum claim-
not paid, the plaintiff would be " compelled '
recourse to law to recover the same without
notice." Held, (i) that the two letters sh
read together; (ii) that the cause of acti
stated sufficiently in the second of the abov(
(iii) that the plaintiff's address was suti
given in the first of the above letters. ^1
therefore a sufficient notice of action 'i! ^
433 of the Madras Municipal Act, 1884. i-—
Municipal Commissioners op Madras

I. L. B. 14 Ma J*"

( 7725 )

DIGEST OF CASES.

( 772.) )

^.DRAS MUNICIPAL ACT (I OF
384)— concic?.

8. 433— concld.

,, . Notice of action.

Iiii suit against the President ^ f the ^Fiinic pal
Cimission, Madras, to recover damage for the
j. olition of a house which had been built by the
p, 'ititf without previous notice given by him
U) T the Madras Municipal Act, 1884, s. 265, the
pLitiff proved, by way of notice of action, the
Ji -cry of a letter ; signed by him and dated from
hi )lace of residence, which did not state where the
hi-c in question had stood, nor the date of its
d( olition, nor state positively that an action
w Id be brought. Held, that the letter was not a
liu lent notice of action. Devalji Rau v.
P; :dext, Municipal Commission, Madras

I. L.R.18 Mad. 503

Sch. A — Liahility of Mutual Astsur-

i«e Company to taxation. The investment for

ni^st of the funds of a Mutual Insurance Com-

pB^f by its Directors constitutes " carrying on

bi icss for gain," and the premia paid by insurers

ac the profits from investments thereof constitute

li ' capital " of the Company within the meaning

\ of the City of Madras Municipal Act, 1884.

EgriTABLE Assurance Company v. Presi-

\iUNiciPAL Commission, Madras

I. L. R. 11 Mad. 238

Sch. B — VeJiicle tax — Bicycle — Vehi-

' ^f-rings. A bicycle with pneumatic tires,

-' two metal springs under the saddle, is

I taxation as a vehicj|j with springs under the

Madras Municipal Act, 1884. " Wilson v.

Municipality . I. L. R. 19 Mad. 83

^ 3RAS MUNICIPAL ACT (III OF
04).

- 8. 176, and Sch. V—The ivord
does not mean nominal capital, but only
"ipital — Construction of statutes — Reference
176 of Act must state all necessary facts.
•ence by the Magistrate under s. 176 of the
Municipal Act III of 1904 as to the meaning
id " capital" in Sch. V of the Act -.—Hfld,
'.(■ absence of any statutory definition of the
plicable in constniing the Act, the word
: iken to be used in its ordinary and popular
. and so construed, it means the amount of
tually used in the business, i.e., the paid-up
The fact that the word, in the Indian
;''3 Act, is used in the sense of nominal
> no argument for so construing it in the
il Act, as the two Acts are not in pari
The underlying principle of Schedule V
' t is that taxation should be roughly pro-
ti' to the prof essional incomes of individuals.
'1 'capital " is used in the same sense in
f Art III of 1904 and in Sch. A of
' '"'^^- In construing fiscal Acts, the con-
must beneficial to the subject ought to be
Maxwell on the ' interpretation of
4 Ed., pp. 2, 56, 4.30 referred to. Venka-
Chetti v. Emperor, I. L. E. 2S Mad. 17,

MADRAS MUNICIPAL ACT (III OF

1004)— co»cW.

s. llQ—cothcld.

referred to. In making references under s. 176 the
Magistrate ought to state all the facts necessary
for the decision of the particular case. Mylapore
Hindu Permanent Fund v. Corporation op
Madras (1908) . . I. L. R. 31 Mad. 408

MADRAS MUNICIPAL ACTS.

See Madras City Municipal Act.

See Madras District Municipalities

Act.
iSee Madras District Municipalities

(Amendment) Act.

MADRAS POLICE ACT (XXIV OF 1859).

es, 10 and 44 — Departmental puni-^h-

ment and prosecution under the Act. In the absence
of any rules framed by Government under s. 10 of
the Madras Police Act, a departmental punishment
inflicted under that section is no bar to a prosecu-
tion under s. 44 of that Act. Queen-Empbess v.
Fakrudeen . . . I. L. R. 17 Mad. 278
ss. 21 and 49 — Procession likely to

cause breach of the peace — Powers of police — Removal
of banners from persons in the procession — Trespass.
A procession of Hindus carried certain barmers
and the Superintendent of Police was of opinion
that a breach of the peace would be occasioned if
these banners continued to be displayed, and in
good faith, for the pui-pose of preventing such
breach of the peace, he took away the banners
from certain persons in the procession:— //eW, that
the action of the Superintendent of Police was not
justified by the Madras Police Act, 1859, ss. 21 and
49, and that he was accordingly liable for the tres-
pass. Ranganayakulu v. Pkendergast

I. L. R. 17 Mad. 37

6ee Revision — Criminal Cases— Evidence
AND Witnesses . 6 Mad. Ap. 45

_- Police constable not

returning to duty after expiry of leave, guilty of
offence under. A police constable, who, having
obtained casual leave docs not return to duty on
the expiry of such leave and stays away without
obtaining fresh leave, is guiltj' under s. 44 of Act
XXIV of 1859 of the ofience of " ceasing to perform
the duties of his ot^ice without leave." Emperor
V. Ramasawmy Raju (1906)

I. L. R. 29 Mad. 192

1. 88. 44 and 10 — Sentry going to

sleep on duty — Ceasing to perform duties. Accused,
a police constable, was convicted under s. 44 of Act
XXIV of 1859 of ceasing to perform the duties of
his office. The evidence showed that he had gone
to .-lecp while posted as a sentrj- over the jail : —
Held, that the accused was not guilty of the parti-
cular species of ofience of which he was convicted :
he was, however, guilty prima facie under the

( 7727

DIGEST OF CASES.

.( 7728

MADRAS POLICE

1859)— contd.

s. 44 — concld.

ACT (XXIV OF

MADRAS POLICE ACT (XXIV
1859)~-concld.

s. 48 — concld.

section. Going to sleep while on guard is an
offence punishable under s. 10. Anonymous

6 Mad. Ap. 31
2. Sentry going to

sleep on duty. Accused, a police constable, was on
duty at the outer gate of a central jail. Quitting
his post beside the gateway and leaving the gate
open, he went to sleep outside. For this violation
of duty he was convicted and sentenced under s. 44
of Act XXXIV of 1859 : — Held, that the conviction
was legal. Anonymotjs . . 7 Mad. Ap. 7

3. and ss. 8, 10, 11 — Village

kavalgars. S. 44 of Act XXIV of 1859 applies
only to police officers enrolled and appointed .in the
manner' prescribed in ss. 8, 10, and 11 of the Act.
Village kavalgars, not being so appointed, are not
punishable under s. 44. Anonymous

7 Mad. Ap.4

s. 48—

See Bench of Magisteates.

I. L. R. 13 Mad. 142
See Fine ... 3 Mad, Ap. 9
See Jurisdiction of Criminal Court —
European British Subjects.

5 Mad. Ap. 25
See Magistrate, jurisdiction of —
Transfer of Magistrate during
Trial . . I. L. R. 15 Mad. 132
See Sentence — Imprisonment — Impri-
sonment Generally 5 Mad. Ap. 35
See Sentence — Imprisonment — Impr i-
sonment: and Fine . 7 Mad. Ap. 22
3 Mad. Ap. 9

1. — Spreading fishing -

nets by the side of public thoroughfare. To spread
fishing-nets by the side of a thoroughfare in a town
is not an offence punishable under cl. 3, s. 48 of Act
XXIV of 1859. Queen t'. Khader Moidin

I. L. R. 4 Mad. 235

2. Power of Local

Government to define " totcn." There is no Act of
Legislature which empowers either the District
Magistrate or the Local Government to define a
" town " for the purpose of s. 48, Act XXIV of
1859. Anonymous . . 6 M.ad. Ap. 34

3. EecHess riding in

streets — Ridijig untrained btillorl: Accused was
convicted under cl. 1, s. 48 of the Police Act, XXIV
of 1859. The facts found were that he rode an
untrained bullock, which he could not control, in
the public street s — Held, that the evidence war-
ranted the conviction. Anonymous

7 Mad. Ap. 10
4 Madras Act I of

ISS) — Dung-heap kept in a toirn. By cl. 5 of s. 48
of Act XXIV of 1859 (Madras), as amended by Act
I of 1885 (Madras), any person who, within the

limits of a town, "throws or lays down any d,,
filth, rubbish or any stones or building materii •
or who constructs a cow-shed or stable without e
bounds of any thoroughfare, or who causes v
offensive matter to run from any dung-heap io
the street " is punishable. A was convicted d
fined for havmg kept a manure-heap in a to\ni, t
not in a street : — Held, that the conviction was 11.
Queen-Empress v. Appathoray

I. L. R. 9 Mad. 7

s. 50—

See Magistrate, jurisdiction or
ciAL Acts — Madras Act III of :

4 Mad. Ap. i

s. 53—

See Estoppel — Estoppel by Condvc

5 Mad 16

See Eight op Suit — Money had ro

Received . . .5 Mad. 6

MADRAS POLICE ACT (III OF 1886
42, 45, and 41—Seizurof

articles nsed for purpose of gaming. In the Maas

City Police .^ct III of 1888, s. 47, the words "jor

any of the other articles seized " include momor

securities for money seized by the police under s J.

'J'he Magistrate i? not bound to hold any inqui as

to whether the money and other things seiziMi 're

; used or intended to be used for the purpo: of

I gaming. Queen Empress v. Bhashyam Cjhe:

! I. L R. 19 Mad. )»

s. 71. els. 11 and 15— Crowd •

by music — Obstruction of street — Music f-
i in private place. Members of the Salvation . -
[ were found by the Jtagistrate to have played m-
, bourines and sung " at the angle " of a stre in
• Madras, and thereby collected a crowd ' '
thronged the street, and they were convi
offences under the City of IMadras Police Act.
els. 11 and 15 •. — Held, on revision, that, sii.
intention of the accused was to collect a cro^v
street, the conviction under cl. 11 was right, w
or not the place where the accused played ai;
was a private place ; but that, if it was a j
place, the conviction under cl. 15 was '
Queen-Empress v. Suka Singh i -

I. L. R. 14 Mad»8

1 MADRAS PROPRIETARY ESTABS
VILLAGE SERVICE ACT (H ^'
1894).

j 8.13.— Enfranchisement of laid-

] ing part of emoluments of office, right to^
registration of a minor as the heir of a Ki
' under s. 13 of Madras Act IT of 1S94, does n
him any right to object to the enfranch;-
of lands, forming the emoluments of the
in the name of one, who is the actual heir
deceased office-holder in respect of his otht

( 7729 )

DIGEST OF CASES.

r730

-•iDRAS PROPRIETARY ESTATES
'ullage service ACT 1(11 OF
394) -concW.

_j 8. 13 — condd.

pl:ies. Venkaia v. Eama, I. L. E. <- Mad. 349,
r rreH to. Devagtiptapu Peda Satyanabayaxa

r iOQTTLAPATI NARASASrSIA (1908)

I. L.. R 31 Mad. 526

J^DRAS REQUIjATIONS.
1802—11—

Se'' LlMITATIOX — SxAXrTES OF LlMITA-

TiOK — Madras PvEgcxatiox II of 1802.
S(r Limitation Act. 1877, Art. 149.

I. L. R. 9 Mad. 75

s. 17—

.See ExGi.iSH Law — Eqcitable Mort-
gage . . .0 Moo. I. A. 303

3.18—

Ad-

See Limitation Act, 1S77, Art. 1^
VERSE Possession".

I. L. E. 13 Mad. 467

_ 1802— III, s. 6—

See O.ATn . . 4 Mad. Ap. 3

See Oaths Act, 1873, s. 11.

I. li. R. 2 Mad. 356

Ill, s. 16, cL 7—

See Appe.41. — Orders.

I. L. R. 24 Mad. 95

XVII, s. 3-

iS'ee Registration — ^Ladras Kegclatiox
XVII OF 1802 . . 2 Mad. 108

XXV-

See Collector . 3 Mad. 35

See Grant — Constrfction of Or axt>.

I. L. R. 9 Mad, 307
L. R. 13 I. A. 32
I. li. R. 2 Mad. 234
<See HiNDr Law — Inheritance — Impar-
tible Property.

I. L. R. 13 Mad. 406
L. R. 17 I. A. 134
'See Jurisdiction of Civil Court— Re-
gistration of Tenures . 3 Mad. 35
-See Landlord and Tenant — Property
rs Trees and Wood on Land.

L L R. 26 Mad. 252

See Madras Rent Recovery Act. lSfi.5,

s. 1 . I. li. R. 8 Mad. 351

See Tax . . I. L. B. 9 Mad. 14

Mad. Beg.

, Right'! of zamindnrs under — Pro-

XI of

'iory pos8es-9ion — Construction of statute — Pre

>U. The affirmative words of Madras Regula

t ! XXV ol 1802, s. 2, the preamble thereto form

MADRAS REGULATIONS— C071/J.

1802— XXV— fon^i.

ing no part of the enactment, did not either give to,
or take away, from the former owners of lands, not
permanently asses.sed, any rights which they then
had. It merely vested in all zamindars an heredi-
tary right at a fixed revenue upon the conclusion of
the permanent assessment with them. The words
" proprietors of lands," as used both in the Bengal
Code of 1793 and in the Madras Code of 1802, have
a technical signification. They refer to " zamin-
dars, independent talukdars, and others, who pay
the revenue assessed upon their estates immediately
to Government." So also the words " proprietary
possession," in the recital of Regulation XXV of
1802, mean the possession of a person who is a pro-
prietor according to the technical meaning of the
term. According to the true construction of Mad-
ras Regulations ^XXV and XXXI of 1802, the
Legislature recognizes the right of private pro-
perty, and does not assert a right on the part of
Government to deprive or dispossess zamindars in
their life time, or their heirs after their deaths,
independently of any considerations connected with
the realization of the public revenue. It provides
for the protection of the revenue from invalid
lakhiraj grants, and for the mode of trying the
validity of the titles of person.s claiming so hold th^ir
lands exempt from the payment of revenue. Oola-
gappa Chetty v. Arbuthnot. Collector of
Trichinopoly >: Lekhamani. Pedda Amani v.
Zamindar of Marungapore

14 B. li. R. 115 : 21 W. R. 358
L.R.I I. A. 268; 282

2. Alienation by zamin-
dar— Limitation. In a suit brought by a zamindar
to recover either assessment at the rate of R5,000
I'er annum, or a pergunnah, part of the pla-nt-
iS's zamindari, the defendant pleaded that he had
held the pergunnah as his own lefoie and ever
since the Permanent .Settlement, and that the claim
was barred by both Re:julation XXV of 1802 and
Act XIV of 1*859. The lower Court overruled both
pleas : the first, because it held that, under Regu-
lation XXV of 1802, the zamindar's title could not
he questioned ; the second, because it considered
that the decision in a former suit (that the laches
of the zamindar could not prejudice his successor)
prevented the application of the statute, on the
ground of subsequent hostile posse-ssion, and that
the plaintiff had had twelve J'ears from the time
he came into possession in which to bring the suit.
Held, first, there was nothing in the Regulations
relating to the Permanent Settlement showing an
intention to affect rights of property in existence
at the period of their being passed ; secondly, that
the decision in the previous suit could not be fol-
lowed in the present case, in which the claimant was
the grandson of him against whom, as to property
of a normal character, the statute would ha%-e liegun
to run. Krishna Devu GAKt: v. Ramachandra
Devc Mahakajulu Gaku . . 3 Mad. 153

Settle m ^nt — M is -

take in settlement papers — Orant by zamindar before

( 7731 )

DIGEST OF CASES.

7732 )

MADRAS REGTJLATIONS— confeZ.

1 802— XXV— cowii.

Permanent Settlement. Tenants are not concluded
by a mistake in settlement papers, nor does Regu-
lation XXV of 1802 provide for forfeiture of rights
by parties who by carelessness or accident allow
their land to be misdescribed in settlement pro-
ceedings. It was doubted whether grants made by
a zamindar before the Permanent Settlement were,
or were not, binding on his successors, — their
Lordships' minds inclining strongly to the affirma-
tive side of the alternative, but as the question was
not raised in the Courts below, it was not considered
to be open to the appellants in the appeal to the
Privv Council. Vybicherla Raz Bahadoor v.
Nadminti Bagavat Sastri . 25 W. R. P. C. 3

Alienation of pro-

prietary rights. Regulation XXV of 1802 strictly
restrains the alienations of proprietary rights except
in manner therein provided, and invalidates a dis-
posal or transfer of such rights as against the Gov-
ernment and the heirs and successors of the pro-
prietor making the disposal or transfer. Semhle :
Such alienation would be valid against the pro-
prietor himself. A permanent lease is as much
within the operation of Regulations XXV and XXX
of 1802 as an absolute transfer by gift or sale.

SUBBAHAYULXJ NaYAK V. RaMA ReDDI

1 Mad. 141
ss. 4, 12 — Zamindar's sanad, assets

mentioned in — Quite-rent on an agraharam village
— Inam title-deed, rate mentioned in — Joint liabi-
lity of agraharamdars — Rent, rate of. The plaint-
iff was a zamindar holding his estate under
a sanad dated 1802. This sanad followed almost
verbatim the language of Regulation XXV of
1802, s. 4, and where it referred to " lands paying a
small quit-rent," added " which quit-rent unchange-
able by you is included in the assets of your zamin-
dari." The suit was brought to recover arrears of
jodi or quite-rent accrued due on an agraharam vil-
lage in the zamindari. The defendants, who were
the agraharamdars, had divided the village a,nd
held it in separate shares. They pleaded that they
were not liable to pay jodi in excess of the rate fixed
by the Inam Commissioner and specified in the
inam title-deed granted by him for the village in
1869. Held, (i) that the decision of the Inam Com-
missioner did not affect the zamindar's claim, and
that the question to be determined was what was
the jodi payable in respect of the village at the time
of the permanent settlement on which the peishcush
of the zamindari was fixed ; (ii) that the defendants
were jointly and severally liable for the amount that
should be found due to the zamindar. On its ap-
pearing that R6 per patti was the recognised rate
from 1832 to 1879, and that there was no evidence
to show the agraharamdars had ever paid any other
rate, or had paid RG under coercion, the Court
presumed that that was the rate at the time of the
Permanent Settlement. Sobhanadbi Appa Rau.
e. GoPALKEisTNAMMA . I. L. R. 16 Mad. 34

MADRAS REGULATIONS— coTJc^rf.
1802— XXV— co»<d.

s. 8—

See Karnam . L L. R. 20 Mad. li

See Madras Land Revextje Assessmi''

Act . I. Ii. R. 19 Mad. 292; 3j

I. L. R. 22 Mad. 2)

L. R. 26 I.:A )

1. Perpetual Uas-

Transfer. A perpetual lease of a distinct portioi f
a zamindari is not a transfer within the meaninif
s. 8, Regulation XXV of 1802, Madras Code. V -
cataswara Naickeb v. Alagoomoottoo Serva •
REN . 4 W. R. p. C. 73 : 8 Moo. I. A. T

Alienation

zamindar — LimMation. Where a zamindar ali-
ated a part of the zamindari and the terras of e
Regulation XXV of 1802, s. 8, were complied w :
— Held (HoLLOWAY, J., dissentiente), that the alid-
tion was invalid against the plaintiff, the granc n
of the zamindar. Held, also, by the whole Ot
that the defendant and his father having held le
land for a lengthened period on a claim of right, le
plaintiff's suit was barred by the Statute of Lim-
tions. Ali Saib v. Sanyasieaz Peddabaliya
SiMHTjLu .... 3 Mai 5-

See Seta Rama Kristna Rayudj'a
Rang a Rao v. Jagttnti Sitayali
Garu .... 3 MadiT

Right of grcic

of 'proprietor against purchaser from his 8ucce>r.
A zamindar granted part of his zamindari b-
solutely and died- His grantee was then is-
possessed by a purchaser from his successor : — I'd,
that, as the conditions specified in Regulation ^J-V
of 1802, s. 8, had not been observed by the f o er
zamindar, the grant was voidable on the dettn-
nation of his interest, and that consequently thi JS-
position was legal. Pitchakuttichetti v. ^
namma Natchiyar . . 1 Mad.»

4. . ' Alienation ^'^'

registered — Permanent lease. A permanent 1'
a village in a muttah by the muttahdar (pla
father) was held to be not invalidated by >
Regulation XXV of 1802, although the lease h
been registered as required by that section
barayalu Nayak v. Rama Reddi, 1 Mad. Ul,
ruled. KONDAPPA Naik v. Annamalay Chett

4MaaPo

Permaneid

by zamindar. A perpetual or permanent lea.si
low fixed rent, made by a zamindar who obt
the zamindari, by self-acquisition, was bindini^
the zamindar's successors, although the instn:
was not registered under Regulation XX
1802, s. . 8. MtJTTU ViRAN Chetty v. KaJi-'^
Natchiyar .... 4 Mad.^S

S. Q-Mad. Reg. XXVI of !>^r

s. 2 — Madras Land Revenue Assessment Act ( **•
Act I of 1S7 6)— Application to Collector to

a»<

( 7733 )

DIGEST OF CASES.

( 7734 )

M DBAS REGULATIOirS— coji^rf.

1802— XX-V—concld.

-, • 8. 9 — concld.

ie\rate registration of portion of tenure sold. An
•ij ication to a Collector to grant separate regis-
:r iy.\ of a portion of a permanently-settled estate
wl h has been alienated by a Court-sale, is one
lu T the provisions of Regulations XXV and XXVI
of 02, and not under Act I of 1876. Bommaraz0
f. sHAMMA . . I. L. B. 22 Mad. 438

8. 11-

See Karnam

I. L. R. 20 Mad. 145

See MuNSiF, jurisdiction of.

I, li. R. 12 Mad. 188

Srotriyamdar — Suit to

di\iss harnam. Under Regulation XXV of
18 , a srotriyamdar cannot sue for the dismissal of
th.:amam of his village. Thurga Ramachandra
l. v. Appayya . . I. L. R. 7 Mad. 128

_ s. 12—

See Sale for Arrears of Revenue —
Purchasers, Rights and Liabilities
of . . I. L. R. 13 Mad. 479

1802-XXVI—

See jMadras Rent Recovery Act, ss. 3
and 80 . I. L. R. 26 Mad. 589

See Possession — Adverse Possession.
I. L. R. 20 Mad. 6
8. 3-

Ste Madras Revenue Recovery Act, ss"
5, 25 AND 44 . I. L, R. 26 Mad. 521

— 1802— XX VII—

See Resumption — Effect of Resump-
tion .... 3 Mad. 59

H-

XXVIII-

See Small Cause Court, Mofussil —
Jurisdiction — Rent . 2 Mad. 22

XXIX-

~j ; ; — Karaam — Incapacity of

««l heir— Minority— Appointment by landholder
'I "--rofor without proof before Zillah Court
■ 'icity of heir. A karnam in a zamindari
Laving died leaving a minor son, the land-
appointed the brother of the late karnam
ilice. In a suit brought by the son, after at-
Uiajority, to establish his right to the office
1^ tu recover itsemdluments:— //eW, that, under
th{)rovisions of Regulation XXIX of 1802, he was
nci ntitled to recover. S. 7 of the Regulation pro-
"M that in filling the office of karnam the heirs of
thl preceding karnam shall be chosen by the land-
nfje'rs, except in cases of incapacity, on proof of
11 k^®'^ the Judge of the zillah the landholders
sn I be free to exercise their discretion in the nomi-
na )n of persons to fill vacancies -.—Held, that.

MADRAS REGULATIONS— cowtZ.

1802— XXIX— con<<^.

s. 3 — concld.

where the incapaity arose from minority about
which there was no dispute, an appointment by a
landholder, made without proof before the Court
of the incapacity of the heir, was valid. Venkata-
narayana v. Subrarayudu I. L. R. 9 Mad. 214

s. 5—
Karnam

I. L. R. 20 Mad. 145

ss. 5, 7, 10, 16, 18—

i MUNSIF, JURISDICTION OF.

I. L. R. 12 Mad. 188
—8. 7—

S MUNSTF, JURISDICTION OF.

I. L. R. 22 Mad. 340

" Heirs,'' mean-

ing of. The word ' ' heirs " in s. 7 of Madras Regu-
lation XXIX of 1802 means " persons who, in the
event of death, would inherit from the precedmg
incumbent." Arumugam Pillai v. Vijayammal
I. L. B. 4 Mad. 338

■' Heirs of pre

ceding karnam. ' ' The words ' ' the heirs of the pre-
ceding karnam " in s. 7 of Regulation XXIX of
1802 mean his next of kin according to the order of
succession of several grades of legal heirs, and not
heirs, in the order of succession to undivided divisible
ancestral property. Krishnamma v. Papa

4 Mad. 234
3. . . The office of kar-
nam in a zamindari village having been held by
three brothers jointly in hereditary rights, the
zamindar, on the death of one brother, did not fill
up the vacancy, considering that the work could be
well conducted by the two survivors. On the death
of the survivors, their sons succeeded to the office.
The zammdar, subsequently desiring to reappomt a
third karnam, nominated an outsider to the joint
tenancy of the office: — Held, that, as there were
heirs of the last holders in existence the appoint-
ment was invalid. Venkayva v. Subbarayudu
I. Ii. R. 9 Mad. 283

Ice of karnam

in a zamindari village, ,-ucces8ion to — Female claivi-

ant Incapacity of ncj:t heir. The karnam of a

zamindari village having died, leaving a widow his
heir, the zamindar appointed her to the office of kar-
nam. The nearest male sapinda of the deceased kar-
nam (from whom he was diviiled) sued to establish
his right tn the office of karnam: — Held, (i) that a
woman cannot hold the office of karnam ; (ii)
that, when the immediate heir is incapacitated, the
nearest male sapinda of the deceased kaniam is
entitled to succeed to the office. Chandramma
V. Venkatraju . I. Ii. B. 10 Mad. 226
5, Karnam in zamin-
dari village — Titk to office. The holder of a kar-
nam's office in a zamindari village, being mcapaci-

( 7735 )

DIGEST OF CASES.

( 7736 )

MADRAS REGULATIONS— confd.
1802— XXIX— coJicZci.

— s. 7 — conclcL

tated, resigned the office in 1863, leaving a minor
pon, the plaintifi. The brother of the late holder
was then appointed to the office, and held it till 1877
when he died. Plaintiff was then nommated by the
zamindar, but did not enter on the office. In 189 / ,
the zamindar being dead, defendant No. 2 was ap-
pomted by the zamindar 's widow and entered on the
office:— ^eM, that, under Regulation XXIX of
1802, s. 7, defendant No. 2, being the heir of the last
holder, was the lawful holder of the office.

I. Ij. R. 11 Mad 196

g_ Zamiridari Tcar-

nam — Order of succession to hereditary office — Hivdu
law— Inheritance. A woman who had been ap-
pomted to succeed her husband, the holder of the
hereditary office of karnam m a zamindari, died
leaving the defendant, her daughter's son, and the
plaintiff the son of her late husband's paternal
uncle -.—Held, that the defendant was entitled to
succeed in preference to the plaintiff. The ' 'heirs
of the preceding karnam " in s. 7 of Madras Regu-
lation XXIX of 1802 mean his next of kin accordmg
to the order of succession of the several grades^ of
legal heirs, and not heirs, in the order of succession
to undivided divisible ancestral property. Knsh-
namma v. Papa, 4 Mad. 2.U, followed Sbeta-
KAMAYVA V. Venkatakaztt I. Ii. R. 18 Mad. 420

MADRAS REGUIiATIOlSrS— con«d.

1802— XXXIV— concZci.

s. 12 — concld.

Perlath

s. 12—

R. 15 Mad. 127

See Public Servant.

I.L.

— 1802— XXX—

See Landlord and Tenant— Liability
FOR Rent . - 1 Mad. 3

.See Lease— Construction.

6 Mad. 164 ; 175

See Madras Regulation XXV of 1802.
1 Mad. 141
XXXI—

property for the term agreed upon.
Subba Rau v. Mankude Narayana

I. Ii.R. 4Mad.:j

2. ■ Mortgages wh

redemption is allowed at the end of any year, i
instrument of mortgage whereby land is made or
to the mortgagee for cultivation, and a grain rt
estimated at a certain quantity is to be retail
yearly in lieu of interest, with a condition that a
the expiry of any year the mortgage might bei-
deemed and possession recovered on payment o* e
prmcipal, falls within the purview of Regula a
XXXIV of 1802. Pcrlathail Svbba Rau v. JJi-
kndc Narayana, I. L. R. 4 Mad. llS, distinguisl i.
Tippayya JIolla v. Ve^tkata I. L. R. 6 Mad. 4

3. Mortgage by ;y

of conditional sale — MaJwmedan mortgagor. In 12
a Mahomedan mortgaged certain land with -3-
session on condition that, if the money lent was it
repaid within eight years, the land should be i-
joyed by the mortgagee after that period as if ci-
veyed by sale. In 1883 a suit was brought tea-
deem :— ^eM. that the title of the mortgagee fl-
came absolute -by virtue of the terms of the ^a-
1 tract on default of payment within the time sj i-
j fied. The obligation cast by Regulation XX. V
1 of 1802 upon a mortgagee to account for profits i^s
i not prevent a mortgage by way of conditional k
i from becoming, after the period for redemptions
! elapsed, an absolute sale where no account has ?n
rendered by the mortgagee. The rule laid do^ in
Pattabhiramier's Case, 13 Moo. I. A. 5->0, apes
I to a mortgage executed by a Mahomedan. Mi-i-

1 KAEJUNUDU V. MaLLIKARJUNUDU

! I. L. R. 8 Mad. J5

j 1803—11—

s. 9—

See Madras Rent Recovrry Act, s^L
I. Ii. R. 26 Mad.pfl

See Madras Regulation XXV of 1802.

14 B. Ii. R. 115

L. R. 1 1. A. 268 ; 282

XXXII—

^eePANCHAYAT . I. L. R. 15 Mad. 1

XXXIV—

See Hindu Law — Usury

6 Mad. 400
1 Mad. 5

1 Iladarwara mort-
gage in South Canara— Lease. Madras Regulation
XXXIV of 1802, which applies to usufructuary
mortgages executed before the passing of Act
XXVIII of 185.5, does not apply in the case of an
iladarwara mortgage in South Canara, which, se-
curing to the mortgagee the use and occupation of
the land for a long term, amounts to a lease of the

18—

See Limitation — Statutes of Le|ea-

TiON — Madras Act I of 1876, i"'

I. Ii. R. 26 Mad 88

6feeLAND Acquisition Act, s. 11-

I, L. R. 13 Mad.w
IX—

S.55—

See Jurisdiction of Civil CouB'^-I^.^
NiTB . . I.L.R.lMa9£

— 1804— V— j

See Guardian— Appointment. '
I. I.. R. 6 Maole

See Limitation Act, 1877, s. 10. ,
I. Ii. R. 5 Ms. »

( 7737 )

DIGEST OF CASES.

( 7738 )

MDBAS REGULATIONS- co7i<<i.

1804— V—concW.

-I 8. 8~

I -See Lunatic . I. L. R. 14 Mad. 289

See MiNOK — Representation of Minor

IN Suits . I. L. R. 11 Mad. 309

I. li. R. 13 Mad. 197

See MAjoinder . I. L. R. 13 Mad. 197
See Res Judicata— Parties— Same Par-
ties OR THEIR Representatives.

I. L. R. 11 Mad. 309

See Sale in Execution of Decree —
Decrees against Representatives.

I. li. R. 5 Bom. 14
— ss. 14 and 20— i

See Sale for Arrears of Revenue — j
Setting aside Sale — Other Grounds.
I. L. R. 10 Mad. 44

s. 17— ;

See Collector . I. L. R. 19 Mad. 255

s. 20—

See Sale for Arrears op Revenue-

MADRAS REGUIiATIONS— co7i<<Z.

ofi99)-

Setting aside Sale — Irregularity.
I. L. R. 12 Mad. 445

1804— V (as amended by Act IV

s. 35 — Rules 7, 9 of rules framed under

Procedure when Government rescindf> noti-

'liter reference to Civil Court. Where
.tor, to whom a decree has been trans-
; execution by virtue of a notification
iiiment under s. 35 of tlie Amended Re-
\' of 1804, makes a reference to the Civil
I'ler Rule 7 of the rules framed under the
lul the Civil Court passes a decision in such

and pending an appeal to the High Court
Mich decision, the Government rescinds
; <.ation : — Held, that the proper course to
■ 'd by the High Court was to set aside the
'if the lower Court, without prejudice to
■ es raising the question involved in the
in execution-proceedings in the Civil

Pulabaiyagari Munisamy Chetty v.
-J AH OP Karvetnagar (1906)

I. L. R. 30 Mad. 193

1806—1—

See Sentence — Imprison jiext — Impri-
sonment IN Default of Fine.

I. L. R. 4 Mad. 335, 335 note

— B. 18-

See Salt, Acts and Regulations relat-
ing TO Madras I. L. R. 3 Mad. 17
I. L. R. 1 Mad. 278

1808— VII-

-See Limitation Act, 1877. s. 10

i. L. R. 5 Mad. 91

1816— IV-

*S'ee Contempt of Court — Penal Code,
s. 174 . I. L. R. 6 Mad. 249
See Execution of Decree — Mode of
Execution — Generally, etc.

I. L. R. 9 Mad. 378
See Limitation Act, 1877, s. 6.

I. L. R. 9 Mad. 118
See Munsif, jurisdiction of.

I. L. R. 7 Mad. 220

I. L. R. 8 Mad. 500

I. L. R, 11 Mad, 375

See Sm.all Cause Court, Mofussil —

Jurisdiction — General Cases.

5 Mad. 45

.See Subordinate Judge.

I. li. R. 5 Mad. 222
.See Transfer of Civil Case — (iENEiiAL
Cases . . I. L. R. 8 Mad. 500
See Valuation of Suit — Suits.

6 Mad. 151

S. 17 — VakiVs fees before village pan-

chayats. S. 17 of Regulation V of ISIU has not
been repealed by subsequent enactments. Gopai.tj
V. Venkatadoss . . I. L. R, 7 Mad. 552

1816— VI—
s. 8—

,See Magistrate, jurisdiction of— Com-
mitment to Sessions Court.

7 Mad. 182

s. 27—
.See Oath ... 4 Mad. Ap. 3

1816— VII-

.See Panch-ayat . I. L. R. 8 Mad. 569

XI-

See Magistrate, jurisdiction of — Spe-
cial Acts — Madras Kegulatilx IV
of 1821 . I. li R. 5 Mad. 268
.See Sanction for Prosecution— Where
Sanction is necessauv <>k otherwise.
I. L. R. 23 Mad, 540
_ 8. 5-
.See Escape from Custody.

I. L. B. 17 Mad. 103

8. 10-

See Magistrate, jurisdiction of— Spe-
CLAL Acts — Madras Kegul.\tion XI
OF 1810 . . 5 Mad. Ap. 32

Mus-^tilinun, stciti's

of— Punishment in stocks. A Mussulman is not of
the lower castes of the people punishable, under
s 10 of Madras Regulation XI of 1810, by confine-
^ent ui the village stocks. ^Q-^ ^ g^'-^f «-

( 7739 )

DIGEST OF CASES.

( 7740 )

TVEADRAS REGULATIONS— cow^d.

1816— XI— cowcW.

— s. 10— cowii.

MADRAS REaULATIONS-con^i.
1816— XV— coticZcZ.

s. 10 — concld.

— Confinement of Native

Christian in stocks — Legality of order. By s. 10 of
Mad. Reg. XI of I8I6, heads of villages are given
summary powers of punishment in cases of a trivial
nature, such as using abusive language, and if the
offenders " shall be of any of the lower castes of the
people, on whom it may not be improper to inflict
so degrading a punishment," they may be put in the
stocjis. A person who was a Mala, or Hindu pariah,
by birth, and who had become a convert to Chris-
tianity, was convicted of having used abusive
language, and sentenced to two hours' confinement
in the stocks under the said Regulation. His pro-
fession was that of a weaver, but he, in fact, worked
as a coolie. On the question of the legality of the
sentence being referred to the High Court : — Held,
that, to render a person liable to confinement in the
stocks under the Regulation, there must be a
concurrence of two circumstances, viz., (i) he must
be a person belonging to one of the lower castes of
the people, and (ii) he must be a person on whom,
from his social standing or otherwise, it may not be
improper to inflict so degrading a punishment.
The test is not what is the offender's creed, but what
is his caste. Semble : That a person who has
changed his creed but continues to belong to his
caste may be within the purview of the Regulation
if the caste is of the nature therein referred to ;
but if he abandons his caste he cannot longer be
said to " belong to one of the lower castes of the
people " and punishment by confinement in the
stocks would no longer be legal. The Queen v. Nabi,
I. L. R. 6 Mad. 247, discussed. Rattigadu v.
KoNDA Reddi (1900) . I. L. R. 24 Mad. 271
. 1816— XII—

See Collector . . 4 Mad. Ap,

I. L. R. 8 Mad. 569

See Madras Regulatiox V of 1822.

1 Mad. 230

See Panchayat I. L. R. 8 Mad. 569
I. L. R. 15 Mad. 1

. XIII-

See Stamp — Madras Regulatiox XIII
OF 1816 . I. L. R. 7 Mad. 440
XIV-

Sce Pleader — Appointment and Ap-
pearance . . 4 Mad. Ap. 43
See Plead-er — Remuneration.

XV—

1 Mad. 369

Procedure — Pleading —
Allegation of division. According to Regulation XV
of 1816 of the Madras Code, in a suit for possession
of joint family property in which the title of
the plaintiff depended on the fact of a division
having taken place in the family, a distinct
averment of division must be made in the cause, and
a direction given by the Court for the production

\ of evidence in proof of such an averment. Vi t
\ Raganadha Bodha Gooroo Swamy Pei i
! Woodai Taver v. Anga Mootoo Natchiar
i 6 W. R. P. C. 0

3 Moo. I. A. : 8

- — 1817— VII—

See Act XX of 1863 .5 Mad. A

7 Mad 7

I. Ii, R. 17 Mad. 95 ; 2

I. L. R. 22 Mad. IS

See Endowment . . 7 Mad, le

See Hindu Law — Endowment— Sue s-
siON IN Management.

I. L. R. 7 Mad. )8

See Jurisdiction of Civil Court- >•

dowment . , 7 Madn

See Jurisdiction of Criminal Cou —

General Jurisdiction.

I, Ii. R. 1 Mad 55
See Landlord and Tenant.

8 C.W.N. 45
s. 12-

See Right of Suit — Endowments, \m
RELATING TO , I. L. R. 13 Mad.77

S. 13 — Board of Revenue may a pint

hereditary trustees — Religious Endowment AcliX
of 1863 — Committee appointed under, cannot '.er-
fere with existing scheme except for just and sufi eni
cause — Act does not confer arbitrary power to apmi
j additional trustees. It is competent to the Jini
of Revenue under s. 13 of Madras Regulatio;*''?!
of 1817 to appoint hereditary trustees, win :
appointment does not interfere with, any sul
rights. Such appointment is not inconsisti-i
the exercise of superintendence by the Boa i
the Board does not thereby relinquish a pai i
duty of superintendence vested in them 1
Venkatesa Naidu v. Shrivan Shatagopa Shr-
gopaswami, 7 Mad. H. C. 77, approved. Ar,
V. Nagappa, I. L. R. 7 Mad. 499, referred t^
Board cannot arbitrarily put an end to an
ment permanently made by them, but ma
only for just and sufficient reasons. It
competent to a Temple Committee, under .\
of 1863, to alter the constitution of th..
management established by the Board
appoint additional trustees, where some
of the trustees are hereditary. Act XX >
does not confer on the Committee an unqi
power of adding to the number of ti
sanctioned under an existing scheme, c
such trustees are not hereditary. Such an ac uoi.
may be made only for just and sufiScient lOse,
which should be fully stated in the Proceed - "^
the Committee. The negligence or mismanai
of old trustees or any pecuniary benefit
temple by the new appointments are not ju ""'

( 7741 )

DIGEST OF CASES.

( 7742

1 IDBAS REGUIiATIONS— contd.

1817— VII— concZ'Z.

8. 13 — concld.

6:i(-ient causes. Such appointments ought not to
hi temporary. Ganapathi Ayyar v. Vedavyasa
Jl^siNGA Bhattar (1906) I. L. R. 29 Mad. 534

_ 1818— VIII-

See Appeal to Privy Couxcil — Stay of
Execution pendixg Appeal.

6 Moo. I. A. 309
1821— IV—

See Magistrate, jurisdiction of — Spe-
cial Acts — Mad. Reg. IV of 1821.

I. Ij. R. 5 Mad. 268

_ 1822— IV—

See Landlord and Tenant — Property
IN Trees and Wood on Land.

I.^Ii. R. 26 Mad. 252
V—

See Landlord and Tenant — Liability
for Rent . . 1 Mad. 3

See Res Judicata— Competent Court
— Revenue Courts.

2 Mad. 22; 475

See Small Cause Court, Mofussil —
Jurisdiction — Rent 2 Mad. 22 ; 475

Mirasidar. Regula-

ti<|V of 1822 is inapplicable to land held under a

sidar or any ordinary proprietor. Yanamand-
Venkaya v. Shillakurf Venkata Narainv
OY . . . 1 Ind. Jur. O. S. 131
1. Enamandaram Venkayya v. \^exkata
- iYANA Reddi ... 1 Mad. 75

8. 8 — Proprietor of fermanently-

H^i estates. Regulation V of 1822, s. 8, only

to zamindars and other proprietors of

i'vrmanently settled under the Roguhitions

Nall..vt.\mbi Pattar f. Chinna Dey-

AM Pillai ... 1 Mad. 109

„| 8. 18 — Disputes regarding irrigation —

■M'l Reg. XII of IS 16. Regulation V of 1822

" " ' <ipp'y to disputes respecting irrigation.

lies mentioned in s. 18 of Regulation V of

-ubjected to the procedure provided by

"11 Xll of 1816. Ragavendka Rau v.

I) Kanitaraganar . 1 Mad. 230

— 1822— IX—

See Collector

2 Mad.

8. 5 — Sale of laiul to recover fine

,V C ollector—Title of purchaser. A sale of

^^ iiT the provisions of s. 5 of Regulation IX

'J- does not convey to the purchaser a title

rejrom prior incumbrances. Raman r. Hass\n

' I. L. R. 9 Mad. 247

MADRAS REGULATIONS— ccwcW.

1822— IX— concW.

88. 29, 2&~Remedy confined to

parties to suit. The remwJies provided bv s 35 of
Regulation IV of 1816 against Village Munsifs are
confined to persons who are parties to suits before
such Village Munsifs. Raman ?•. Pakrichi

I. L. R. 9 Mad, 385

1825—11—

See Stamp — Madras Regulation- II op
1825 . . I. L. R. 16 Mad. 419

1828— VII—

See Collector . 2 Mad. 322
I. L. R, 7 Mad. 420
VIII, s. 3—

See Madras Rent Recovery Act. s. 11.
I. L. R. 26 Mad. 456

1831— IV—

See Attachment— Subjects of Attach-
ment—Annuity or Pension.

4 Mad. 277
See Grant — Construction of (Jrants.

12 W. R. P, C. 33
13 Moo. I. A. 104
See Grant — Resumption or Revoca-
tion OF Grant.

I. L. R. 14 Mad. 431
^ee Inam Commissioner . 2 Mad. 341

VI—

See Hereditary Offices Regulation
Mad. Reg. VI of 1831.

X—

See District Judge, jurisdiction- of

I. L. R. 6 Mad. 187

88. 1, 2, 3—

See Sale for Arre.\rs of Revenue —

Setting aside Sale — Other Grol-nds.

I. L. R. 10 Mad. 44

XI—

See Treasure Trove . 7 Mad, 15
1833— III—

See Valuation of Suit — Suits.

6 Mad. 151

MADRAS RENT RECOVERY ACT (VII
OF 1865).

See Appeal — Madras Acts, M\dh\s Rent

Recovery Act. . 4 Mad. 227 ; 251

I. li. R. 4 Mad. 167

See Jurisdiction of Civil Coikt —

Pott.\hs . I. L. R. 12 Mad. 481

I. li. R. 13 Mad. 361

I. L. R. 14 Mad. 441

I. L. R. 17 Mad. 1

( 7743 )

DIGEST OF CASES.

( 7744

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— conW.

See JuRiSDirTiON of REVE>trE Couet —

Madras Regtilations and Acts.
See Landlord and Tenant.

See Lease — Construction.

6 Mad. 164; 175

See Limitation Act, Sch. II, Art. 10.
8 C. W. N. 162

See Possession — Adverse Possession.
I. L. R. 20 Mad. 6

See Registration Act, 1877, s. 17.

7 Mad. 234

See Res .Judicata — Competent Court —
Revenue Courts.

I. L. R. 17 Mad. 106

See Review — Orders Subject to Re-
view ... 4 Mad. 251

See Small Cause Court, Mofussil —
Jurisdiction — Moveable Property.
I. L. R. 11 Mad. 264

See Statutes, Construction of.

6 Mad. 122

distraint under —

See Penal Code, s. 424.

I. li. R. 25 Mad. 729

Exchange of patta and

muchilika not necessary between zamindar and
inamdar to enable former to take proceedings under
Act. No exchange of patta and muchilika is
necessary to enable a zamindar to take summary
proceedings against an inamdar as his tenant under
Madras Act VHI of 1865, even when such inamdar
has the kudlvaram right in the land held by him.
Lakshmi Narayana Pantulu v. Venkatarayanam,
I. L. R. 21 Mad. 116, referred to. Krishnama
Charlu v. Rengachariar, 16 Mad. L. J. 489, referred
to. Zamindar of Challapalli v. Kuciii Jaggayya
(1907) . . . . I. L. R. 30 Mad. 493

1_ s. 1 — Inamdar — Mad. Reg. XX V

of 1802. S. 1 of Madras Act VIII of 186.5 does not
confine the term " inamdar " to such inamdars as
are registered -.—Held, therefore, that the purchaser
of an'^inam village, who had not got his name
registered as inamdar, was not thereby debarred
from enforcing the provisions of the Act against a
tenant for arrears of rent. Valamarama\. Virappa,
I L. R. 5 Mad. 145, observed upon. Subbu v.
Vasanthappan . . I. L. R. 8 Mad. 351

2. Landholder —

Poligar of unsettled polliem. The definition of the
word " landholders " in Madras Act VIII of 1865,
s. 1, includes the poligar of an unsettled polliem.
Sucii a landholder is therefore entitled to sue under
the Act to compel the acceptance of pottahs by his
tenants. Chauki Gounden v. Venkat.\ramanier
5 Mad. 208

MADRAS RENT RECOVERY ACT (VI
OF 1865)— conid.

s. 1 — contd.

rent from other inamdara may have recourse to t.
summary remedies provided by Act VIII of Ih
(Madras) for the recovery of the ouit-rent. Ap).
sami v. Rama Subba . I. L. R. 7 Mad. 2':

4^ - Landholder — !•

traint. V leased certain fields to iS at a sinv
rent. Of these fields some were held by V uii(f
a raiyatwari pottah, but the pottah for the it
stood in the names of V's vendors. F distraiil
for arrears of rent under the provisions of the R-t
Recovery Act : — Held, that V was not a lan^holr
within the definition in the said Act in respet ^f
the latter fields, and therefore that the distrat
was illegal. Subba v. Venkata

I. L.R. 8 Mad)

5, and s. 3 — Zamindar delegmg

to mortgagee. Where a zamindar e -

. ated a usufructuary mortgage-deed of part of a
zamindari and by the deed delegated all s
powers under the Rent Act (Madras Act Vlll'f
1865) to the mortgagee -.—Held, that the mortgae
was entitled to enforce the acceptance of pott.s
under the provisions of the Rent Act. GmA
Reddi Narayana Reddi v. Kristxa Doss Ba
Mukunda Doss . . I. L. R. 5 M«iT

6. - and s. 79 — Landholder— ' if-

mer "—Assignee of landholder— Mortgagee o/ Up-
holder, position of. A mortgagee of a "lai-
holder," as defined in Madras Act VIII of 1865, *,
may exercise the powers of landholder under ;ie
Act— (i) as a " farmer " if it is a condition of le
mortgage that the mortgagee shall take posses?-
the estate in whole or in part and give credit
count for a sum certain to the proprietor on ai ■
of the collection ; or (ii) as an assignee of a lar.dhf i
under s. 79 if the powers conferred by the Acm
landholders have been specially delegated to bin v
his mortgagor. A delegation of such powers sn.
not be inferred from an instrument in the fonu i
ordinary mortgage. Vellayan Chetti r. j
VAKONE . . I. L. B. 5 Mad. 6

7_ Landholder-^'-

signee of pottah. A zamindar hypothecated > '
villages comprised in his zamindari as sr
for a'debt, at the same time leasing the said ■
to the mortgagee at an annual rent, the ai
of which was to be, as it fell due, credn
liquidation of the debt -.—Held, that the pi '
who was the assignee of the hypothecation dv
the lease, was not a "landholder" witln
meaning of Madras Act VIII of 1865. Zincla

ROWTEN V. VlJIEN ViRAPATREN_^ ^ ^ •M-ftclw

I.L. B. 1 M8

Landholdi

and S. "2,— Inamdar — Quit-rent.

An inamdar entitled to receive a jodi or quit-

signee— Delegation of powers. Tho interest -
the farm of a jaghir, which he had obtan
lease from the jaghirdar, was sold in execut.-
decree and purchased by J, who assigned his i:
to the plaintiff. lu a suit under Act VUl ^^

( 7745 )

DIGEST OF CASES.

( 7746 )

tf DBAS RENT RECOVERY ACT (VIII

F 18Q5)—cont(I.

8. 1 — condd.

y Iras) by plaintiff to compel defendant to accept
I ttah, defendant objected that plaintiff had no
i^ to enforce acceptance of a pottah und(;r the
Vc — ^e///, by the Full Bench [Tcjrxer, C../.,
lurusAMi Ayyar, HrjTCHiNS, and Brandt, JJ.
K;nav, J., dissenting)], that plaintiff was a
ar loldor within the meaning of the Act and
r.i lod to enforce acceptance of a pottah. Zinn-
dn Rowten v. Vijien Virapatren, I. L. R. I Mad.
'9. 'issented from. Gotjse v. Stjndara

I. li. R. 8 Mad. 394

i — — — — Landholder —

\li. er of estate and until debt is paid — Increase of
en'or garden cidtivation and second crops. An
lis mient authorizing a creditor to manage an
at !, recover rent and pay certain disbursements,
IK etain possession until a certain debt amongst
-tl debts to him was paid, does not create to the
re, or a landholder within the meaning of Act
>T of 1865. Vaythenatha Sastrial v. Sami
'a iTHER . . I. L. R. 3 Mad. 116

I ■_ and s. 13 — Inamdar — Tenant

-Iht of distraint — Inam Commissioner. A zamin-
Lirolding his estate under a sanad, which includ-
<\, mong the assets of the zamindari, the jodi
>&\ )le by an inamdar, proceeded under the Rent
'.e< -ery Act to recover arrears of jodi by distraint.
II . uit by the inamdar to release the distraint, it
;pi red that the plaintiff had sublet the land, and
118 ho rate at which the jodi was claimed exceeded
i;a; itorod in the Inam Commissioner's pottah :—
• '■/{i)that the inamdar was a tenant of the
■'ill dar within the meaning of the Rent Recovery
\ct (ii) that the fact that the inamdar had sublet
l>e id did not confer on him a higher status than
iiajf a tenant ; (iii) that the zamindar accordingly
"»d' right to proceed under the Rent Recovery

' ■ ! that his claim was not limited to the
t jodi entered in the Inam Commissioner's

■>URYANARAYANA V. ApPA RaTT

I. L. R. 16 Mad. 40

~ ss. 1, 38, 39 — Intermediate

-' tennnt for purposes of ss. 38, 39. An

'te landholder liable to pay rent to a

' uidlord is a tenant for the purpose^, of

'::50of the Madras Rent Recovery Act

1S(5.5) and tiio opinion of the Full Bench

■"/)/>fl PilUnn V. Amhalavana Pandara

. I. L. R. 27 Mad. 46i, at p. 470, is not

' with this view. The true effect of the

^ 111 s. 38 to landholders specified in s. 3 is

.^.ude landholders specified in the second

■•'"iaph of 8. I of the Act. In a suit under ss. 40

' -' Act VIII of 1865, it is not competent to

nue Court to decide the question of

'istamed by the tenant by non -perform -

'ho landlord of covenants in the

'THrSAMl PiLLAI v. ARrXACHELLAM

(1905) . . I. L. R. 29 Mad. 79

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— conf/.

^•. ^^ s. 2 — Tenant — Lessee of zamindar

— Limitation.. In 1869 a village in the zamindari of
R wa.s granted by the zamindar to *S' at a favourable
rent, in consideration of S renouncing a claim to the
zamindari. The villago was not .separately assessed,
and divided off from the zamindari. The rent hav-
ing fallen into arrears, the village was sold in 1875
under the provisions of the Rent Recovery Act, and
purchased at the sale by the agent of the Court of
Wards on behalf of the defendants, minor sons of the
deceased zamindar. In a suit brought by S in 1883
to recover the village :—//eW, that the sale was bind-
ing on S, and that the suit was barred bv 1-mitation.
Ba-skarasami v. Sivasami I. L. R. 8 Mad. 196
Limitation. In a

suit by a tenant against a zamindar to release an
attachment made under the Madras Rent Recovery
Act, s. 40, it appeared that, according to the kist-
bandi obtaining in the zamindari, rent was payable
in monthly instalments, commencing with Novem-
ber in each Fasli • — Held, that the unit for the rule
of limitation prescribed by Rent Recover}' Act,
s. 2, for proceedings bj' the landlord was the aggre-
gate rent in arrear at the end of the Fasli . Appaya-
sami v. Subba . . I. L. R. 13 Mad. 463

3. Attachment by

landholder of tenant's immoveable property more than
one year after rent due — Validity. An attachment of
a tenant's immoveable property, made more than
one year after the date when the rent became due as
specified in the patta tendered, is not within the
time limited by s. 2 of the R,ent Recovery Act.
Appayasami v. Subba, I. L. R. 13 Mad. 463, dissent-
ed from. Chinnipakam Rajaoopalachabi r.
Lakshmidoss (1904) . I. L. R. 27 Mad. 241

4. . ss. 2, ^JQ— Pottah— Suit^
Rent Recovery Act. The fact that the pottah, which
has been tendered, was a varam pottah is no
objection to a suit being sustained under the Rent
Recovery Act by the landlord, even if it be found
that the proper rates were only money rates. Nor
is an agreement to pay a money rent to bo implied
from the mere circumstance that rent has been paid
in money for a series of years, but at vaiying rates.
Kavipurapu Rama Rao v. Dirisaialli Narasai/ya,
I. L. R. 27 Mad. 417, approved. Having regard
to s. 76 of the Rent Recovery Act, no memorandum
of objections lies against the finding of the Court
of first instance in cases under that Act. A clause
in a pottah requiring the tenant to be responsible
for theft of crops by him or his servants is not a
proper term of a tenancy under the Act, especially
having regard to s. 83 of the Rent Recovery Act,
which providt\s for clandestine removal of crops.
Parthasarathi Appa Row v. Chevendka China
Sundara Ramayya (1904)* I. L. R. 27 Mad. 543

1, s. 8 — Purchaser of zamindari

village without separate assessment — Landholder.
A zamindar having mortgaged one of his zamindari
villages to T', a proportionate amount of the
peshkush due by the zamindar was paid to the

11 O

( 7747 )

DIGEST OF CASES.

( 7748 )

iSIADBAS BENT RECOVERY ACT (VIII
OF 1865)— contd.

. s. 3 — conli.

MADRAS RENT RECOVERY ACT ( [I
or 1865)— contd.

, S. 3 — canU.

treasury by 7 by agreement. Having sued the
zamindar, and brought to sale and purchased the
village at the Court sale, F continued to pay the
peshkush as before to the treasury, although the
village was never separately assessed under s. 8 of
Regulation XXV of 1802 -.—Held, that F was not
entitled to enforce the acceptance of a pottah under
the provisions of the Rent Recovery Act. Vala-

MARAMAYYAN V. ViEAPPA KaNDIAN

L L. R. 5 Mad. 145

2. . Purchaser of four

shares in shrotriyam village — Landholder. Where
the holders of shares in a shrotriyam village have
not received or agreed to receive the rent separately
from the tenants according to their shares, the
several shareholders constitute one landholder
under the Rent Act, and one sharer is not entitled
to enforce acceptance of a pottah by the tenants
in respect of the proportionate rent payable to him.
Keishnamachan v. Gangarau Reddi

I. L. R. 5 Mad. 229

3^ Laruiholders —

Mulgar. Quoere : Whether a mulgar is within the
class of landholders defined in the Madras Rent
Recovery Act, s. 3. Keishna v. Lakshmina-
kanappa . . . I. L. R. 15 Mad. 67
4. .^ Registered zamin-
dar— Zaniindari held in co-parcenary — Co-sharers,
right of one of several to sue. A registered holder of
a zamindari sued under the Madras Rent Recovery
Act to enforce the acceptance of a pottah and
execution of a muchalka by the defendant, a tenant
on the estate. It was pleaded in defence that the
zamindari was the undivided property of the
plaintiff and his co-parceners, in whose name a
pottah and muchalka had already been exchanged, i
Held, that the plaintiff, as being the registered
zamindar, was entitled to maintain the suit alone.
Ayyappa v. Venkatakeishnamara7tj

I. L. R. 15 Mad. 484

5. and ss. 4 and 7 — Contents

of pottah — Date of tender of pottah. A landlord
within three days of the end of the Fasli tendered
to a tenant by way of pottah a document contain-
ing a statement of account of rent payable in
respect of the current Fasli ; — Held, that the docu-
ment tendered was a good pottah, and that under
local custom a valid tender of a pottah may be made
at the end of the Fasli. Narayana v. Muni

I. L. R. 10 Mad. 363

6. and ss. 4, 9 — Landlord and

tenant — Right to enforce acceptance of pottah. The
renter of a zamindari, to whom the right to
collect the kuttubadi or quit-rent on inara lands and
the road-cess paj'able to Government was delegated
sued to compel the inamdars to accept pottahs and
execute muchalkas for the amounts due : — Held,
that the inamdars, not being cultivating tenants,
•were not bound, under Act VIII of 1865 (Madras),

to accept a pottah. Ramasami v. CoUm (
Madura, I. L. R. 2 Mad. 67, referred to. .m
V. Venkatachalam . I. L. R. 8 Mad il\

and ss. 8, 9, and 11— .re<

ments between landlords and tenants. The p &\\
and muchalkas mentioned in s. 3, MadrtAc
VIII of 1865, must be understood to en af
those written agreements only which are mu aU
interchanged by a lantUord and those of his t> ml
who are actually engaged in the cultivation th
lands to which they relate, since the remedies lic
the Act provides in ss. 8 and 9 can only b. lac
available where the relation of landlord and i an
or a holding of some sort, already exists upon ch
basis that the landlord or the tenant, as tbcas
may be, can come into Court and claim to l^e
writing granted to him. Semble : If a lease gpfe
by a zamindar to an intermediate holder ccd 1
considered a pottah within the meaning of 3
Madras Act VIII of 1865, it would, under tlpr
viso to s. II of that Act, be liable to be set aid
the successor of the grantor if granted at £3W
rate than that generally payable on such lani ai
not for the purposes mentioned in the said p Ws
Ramasaju v. Bhaskarasami. Ramasami ' Co
LECTOE OF Madura . I. L. R. 2 M i. <

and s. 9 — Mohhassa-in i

paying kattubadi to the zamindar — OhUga'^
accept pottah. Mokhassa-inamdars who hoi tan
in a zamindari and pay kuttubadi annually i t
zamindar, and who are not cultivating tena'i, a
not bound to accept a pottah from the zaindi

LaKSHMINAEAYANA PaNTULTT v. VENKATAR/VNi

I. L. R. 21 M£. 1

Mad. Reg ^i

of 1S02, s. 8 — Non-registration of landholder--^
quent registration of undivided brother cM^
holder — Maintainability of suit. Suits | <
change of pottah and muchalka for FasI 13
ending June 30th, 1897, were dismissed in '
Collector's Court in August 1897 on th
that the plaintiffs were not the registei
holders. Pottah had been tendered in Jn
Plaintiffs appealed. Subsequent to the
such appeals, namely, in December 1 -
Collector registered the undivided brott
plaintiffs (who had died in April 1897),
contended at the hearing of the appeals '
registration covered al! the undivided nv
the family. Held, that in the absence i>f
tion under s. 8 of Regulation XXV of i
landholder was not entitled to enforce a^
of pottah under the provisions of the Rent 1
Act, and that there was no cause of act ■ "■■
that Act. The original defect of title |s
cured by the subsequent registration of t '*
holder in the name of the plaintilJs' i
brother. Valamarayyan v. Virappa
I. L. R. 5 Mad. 145, and Ayyappa v.

( 7749 )

DIGEST OF CASES.

( 7750 )

iDEAS RENT RECOVERY ACT (VIII
DF 1865)— conkL

8. 3 — condd.

i ihrtamarazu, I. L. R. 15 Mad. 4S4, followed.

IlQHAVA REDDI v. KaNNI GraMANI

I I. L. R. 23 Mad. 221

|0. and 80 — Temhr of patta and

fcess to recover rent, by holder of jaghir, before
r tstration as jaghirdar — Validity — " Proceedings. "
'J holder of a jaghir is entitled to tender a patta
u,er the Rent Recovery Act, and to proceed
111 er tliat Act for the recovery of rent before he is
r.(stered as jaghirdar under Mad. Reg. XXVI of
1|2. The word "proceedings," in s. 80 of the
B|t Recovery Act, does not include tender of
Thf - The " proceedings " referred to in that
svion are limited to summary proceedings for
ai,ars of rent. Subbu v. V asanthappan, I. L. R.
Hrlad. 351, approved. Dhaemakarta of Tin-
M|OKB Temple v. Luchimi Doss (1903)

I I. Ij. R. 26 Mad. 589

8. 4—

See Lease — Construction.

I. L. R. 11 Mad. 200

iiuit for rcnt-

8\mary suit to enforce acceptance of pottah. A
mifor rent is maintainable where a pottah in the
fou required by s. 4, Madras Act VIII of 1865,
aj such as the defendant was bound to accept, has
b« tendered to the defendant, although no
atiupt has been made by a summary suit before
thiCollector to enforce its acceptance. Harajai
KUra Vankata Perumalraj v. Kanniappah.

^HtNDAB OF KaRVATINUGGAB V. KaNNIAPPAH

1 4 Mad. 149

j^ ■ Pottah for pal-

f^r; palm trees. Under Madras Act VIII of 1865,

nl may compel a tenant to accept a pottah

yra trees. Muttusamy Mudaly v. Sada-

' lAMANY . . . 4 Mad, 398

I Landlord and

ii— Exchange of pottahs. The pottahs and

"kas required by Madras Act VIII of 1865

• made and exchanged during tl>e existence,

necessarily at the commencement, of the

the terms of which they are meant to

The 4th section of the Act requires no

iri that the pottahs should mention the rate

I'ortion of the produce to be given, and not

tic quantity or number of measures. Ses-

AVYANGAR V. SaNDANAM

I. L. R. 1 Mad. 146

Water-tax col-

■ Govemtnent by landholder — Water Cess Act,
Vll of ]S66~Suit to enforce pottah. A

'■ beuig authorized to collect on account of
'•■nt the water-tax imposed under Act VII
Madras), sued his tenant to compel him to
|H)ttah for such water-tax under Act VIII
(Madras). Held, that the tenant was not
■ accept the pottah. Baciiu Ramesam v.

V Bhanappa . I. L. R. 7 Mad. 182

MADRAS RENT RECOVERY ACT (VIU
OF 1865)— contd.

8. 4 — contd.

5. and ss. 7 and 87— Form of

pottah necessary for tender by landholder. A pottah
which professes to make the tenant liable to the
person tendering it for lands not held as well as for
lands held, of such person, is an improper one, and
not one which the tenant is bound to accept. Alaoi-
RiSAMi Naikf.r v. Innasi Udayan

I. li. R. 3 Mad. 127

6. and s. 11 — Acceptance of pottah

not in accordance with the Act. A tenant having
accepted a pottah (which did not give the
particulars described in s. 4 of the Madras Rent
Recovery Act), and having executed to the landlord
a muchalka which was registered, is not entitled to
obtain in a summary suit an order setting aside a
distraint by the landlord for arrears of rent. Appa
Rau v. Vieanna . I. L. R. 13 Mad. 271

7. Validity of pottah

— Omission to sign by landholder. A suit was
brought to set aside a sale of lands on the ground,
among others, that a pottah which had been
tendered was illegal. One of the clauses objected
to in the pottah contained an erroneous reference
to punja lands which had inadvertently not been
erased ; another provided only in an indirect
manner for the rent payable in respect of any other
land that might be cultivated. The pottah was not
signed or sealed. Held, that the clauses referred
to were unobjectionable : and the fact that the
pottah tendered had not been signed by the land-
lord did not necessarily render it invalid. Eswara
Doss V. Raj AN . . I. L. R. 22 Mad. 353

PatVi containii^g

name of tenant's father and not mentioning tenant-
Death of the father before tender of patta — Tender of
patta without alteration — Validity. Patta for land
was tendered to .-1, but stood in the name of A' a
father. It appeared that A' s father was really
the tenant for the Fasli in respect of which the pittta
had been tendered, but had died after that patta
had been ])reparedand signed by the landholder.
Held, that the tender was legal. Subbiev r. Rama-
SAMi Chetty (1902) . I. L. R. 26 Mad. 363

9. . Res judicata —

Contract to pay tax on improvements legal — Previous
decision in summary suit binding in subsequent
suits — Appeal, pcnvers of Court in — Appellate Court
tnay, by consent, order trial on issues not raised in
appeed. The effect of an appeal is to re-open the
decree of the lower Court and it is competent to the
Appellate Court on the agreement of parties to
remaml the case for trial on issues not raised in the
memorandum of appeal The decision of a Revenue
Court as to the propriety of a particular condition
in a patta, when such decision does not proceed
on any considerations peculiar to the particular
fash, is res judicata between the parties in subse-
quent suits in the same Courts. Venkatachalapati
v. Krishna, I. L. R. 13Mad. 2S7, referred to. S. 11

11 02

( 7751 )

DIGEST OF CASES,

( 7752 )

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— contd.

s. 4 — concld.

of the Madras Rent Recovery Act contemplates
rents being fixed by contract and it is only in the
absence of contracts, express or implied that resort
is to be had to the methods of fixing rent specified
in clauses 2 and 3 of the section. There is nothing
in clause 4 to make contract illegal which would
have the effect of giving the landlord a share in the
benefit of the tenants' improvements. A custom to
this effect may be opposed to the proviso to clause
4, but a contract is expressly authorised by the
section and is not opposed to anything in the
proviso. Gopalasawmy Chetti v. Fisher, I. L. R.
28 Mad. 328, referred to. Natesa Gramani v.
Venkatarama Reddi (1907)

I. li. R. 30 Mad. 510
S. 6 — Signing and registration of

pottahs and rmichalkas. Madras Act VIII of 1865,
s. 6, imposes upon village karnams the duty of
signing and registering pottahs and muchalkas
exchanged under the Act. Where such pottahs
and muchalkas were not signed or registered by the
karnam: — Held, that a suit for rent might be main-
tained, founded upon the muchalka, tlie signature
and registration by the karnam not being intended
to be a condition of the right to sue. Venkata
SuBBA Row V. Sesha Reddy . 4 Mad. 243

s. 7—

See Limitation Act, 1877, Art. 12.

I. Ii. R. 20 Mad. 33
See Limitation Act, 1877, Art. 131.

I. L. R. 15 Mad. 161

!• " Tenant having no

saleable interest in the land. S. 7 of Madras Act
VIII of 1865 applies to cases where the landlord is
the exclusive proprietor of both the melwarum
and the mirasiwarum,and the tenant has no saleable
interest in the land- Ramasami Aien v. Manjeya
PiLLAi 6 Mad. 61

2. Suit for arrears of

rent — Tender of Pottah. Plaintiff sued for certain
arrears of rent. The suit was dismissed as' to Faslis
1271, 1272, and 1275, on the ground that no pot-
tahs had been tendered for those Faslis. On special
appeal it was contended that no tender was neces-
sary, because a suit which had been brought before
Fasli 1271 for the determination of the proper rate
of rent was pending during those Faslis. Held,
that the pending oip that suit did not render the
tender of pottahs unnecessary, and that the present
suit was rightly dismissed. Periyanayagam Plllai
V. ViRAPPA Naikan . . 7 Mad. 51

3. Tender of pottah

through the post. Tender of a pottah through the
post to a tenant is invalid under the provisions of
Madras Act VIII of 1865. Venkatachellam
Chetti v. ICadumthusi . I. L. R. 4 Mad. 145

MADRAS RENT RECOVERY ACT 0
OF 1865)— fonii.

s. 7 — contl.

*• ' Suit for rent dis-
missed—Suit for use and occupation barred. A land-

lord who has failed in a suit for rent under the j
Recovery Act cannot bring a fresh suit for use i
occupation. Ali Khan v. Appadu

I. L. R. 7Mad.(

5. and ss. 9 and 10— it

tendered within Fasli — Suit after Fasli, h
pottah amended — Maintainability of suit. A n
holder tendered a pottah within the Fasli. Aft t
close of the Fasli, he brought a suit to enfor )
acceptance when the pottah was amended, ft
judgment in that suit, the landholder attach t
land ; whereupon the tenant sued to have the a .c
ment set aside, on the ground that, as no ^ p
pottah had been tendered withia the Fasli, ai t,
suit which resulted in the rectification of the j ti
had been filed after the close of the Fasli, the.n
holder was precluded from enforcing hiscla.:-
Held, that, inasmuch as judgment had bee o
tained, fixing the terras of the pottah, the viai
could not plead, in answer to an action for rer tl
iticorrectness of the pottah originally tente
A landholder has a choice of two alternative
he satisfies himself that the pottah tendered 1 hi:
is the right one, he may bring his suit forrt i
take other measures to recover it. He tat h
chance of some flaw being discovered in thpo
tab. If he is not so satisfied, he institutes su
under s. 10 of the Rent Recovery Act, and caii
a judgment which fixes the terms of the tta
for that Fasli beyond all dispute. Musaj
Naidu v. Perumal Reddi I. L. E. 23 Ma .61

6. Te7ider of f "h-

Unreasonable condition. A tenant is noi

to accept a pottah which requires him to re'
at the close of the Fasli, land which he h
unable to cultivate. Vedanta Chariah f. i^.i
SAMi MuD.^Li . . I. L. «. 4 Ma 821

7, — '■ Tender of " '

^Vhen a Collector in a suit brought under
visions of the Rent Recovery Act has decid'
tenant is to accept a pottah on certain ti ■
landholder is not bound to tender such p< '
acceptance before suing to enforce the term •
Court of Wards v. Darmalinga i . ,

I. L.E.8:H-5

8. Pottah— i • •'

y(_<ni — Indefinite stipulations. In a pottah t
by a landlord to his tenant under s. 7 of Act
1865 (Madras), the rate of rent should be as
ed and declared oven where the rate may \i
the means of cultivation or the frequency of
tion or Avhere the quantum of rent may va
an increase or reduction in the area of the
A landlord tendered a pottah to his tenar
contained the following stipulations : "If
tivate by the aid of Sirkar services for ir;
wet crops on dry land, you must pay w;
settled according'to the highest nanjai asses
neighbouring land. If you occupy land in <
that entered in this pottah, you must ).

( 77S3

DIGEST OF CASES.

( 7751 )

] \DRA8 RENT RECOVERY ACT (VIII
)F 1865)— cont(l.

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— conid.

8. 7 — contd.

s. 7 — contd.

jjiropHate assessment, or if the assessment has
r been fixed, then such assessment as our Sirkar
i\Y settle." Held, that the pottah was not one
uch the tenant was bound to accept. Vankata
{jdAKJOLU Naycdc v. Ramachandua Nayudu
" I. Ii. R. 7 Mad. 150

;. — — ■ Landlord and

K^nt — Acceptance of muchalka without delivery cf
pjjA — Presumition. When a muchalka has been
t»i3n from a tenant under the Rent Recovery Act
(Itlraa Act VIII of 1865), but no pottah granted,
ii is some evidence that the tenant dispensed
w!i the delivery of a pottah, and legal proceedings
01 It not to bo set aside merely because no pottah
ai muchalka have been exchanged without
as to whether the parties have agreed to
with pottahs and muchalkas. Vara-
.. h.^iav. Balu Naicken

] I. Ii. R. 3 Mad. 255

t. Landlord and

Exchange of pottah and muchalka. Under
Madras Act VIII of 1865, the agreement to
\Mth the exchange of pottah and muchalka,
; bo express, but it must appear that this
I i)f the law was present to the minds of the
ng parties, and that they deliberately
"t to act upon it. The mere existence of
lease is insufficient to raise the presump-
ii the exchange of pottah and muchalka
•! dispensed with. Komireddi Vakaha

HAM V. ChEVALA RaMASAMI NAVrDTT

I. L. R. 5 Mad. 136

and ss. 3 and 13— ,Vm/«

■ ni of rent — Exchatujc of pottahs and much-

iider of jx>ttah. Suits for the recovery
innot be maintained in the Civil Courts
mdholders described in s. 3 of Madras
1 of IStio, unless pottahs and muchalkas
' n exchanged between the landholder and
t as required by s. 7 of the Act, or some one
HT conditions of the section has been com-
li. So held by Morgax, C.J., Innes, J.,
iiERSLEY, J. (HoLLOWAY, J., dissentiente).
suit may be maintained by the landholders

■ ill 8. 13 of the Act without complying with
. roments contained in s. 7. So held by

■ *"• J. (KiNDERSLEY, J., dissentiente).

'•• that, in cajes whore pottahs must be ten-
dor must be made before the expiration of
!or which rent is sought to be recovered-

■ -ASAWMY MUDELLY V. MUKKEE GoPALIER

] 7 Mad. 312

^nuTASAMi Naik v. Sittjpati Ambalam

7 Mad. 359

—88. 7, 9, 10, 11, 14:— Proceedings

•• '^' -l to determine, rent— Period from which

rurw. The sections of the Madras Rent

y Act (Madras Act VIII of 1865) relating

w r )very of arrears of rent apply to ascertaining

rents, not to rents at rates which have yet' to be
j ascertained. In Art. 110 of Sch. II of the Limit-
! ation Act (XV of 1877), " arrears of rent " means
I arrears of ascertained rent, which the tenant is
I under an obligation to pay, and which the landlord
j can claim, and, if nccessar3% sue for : — Held, there-
j foie (reversing the decisions of the Courts in India),
that where it is necessary for the landlord to take
proceedings under the Madras Act VIII of 1865 to
have the proper rate of rent ascertained, the period
I of limitation in a suit for arrears of rent runs from
' the date of the final decree determining the rent, and
I not from the close of the Fasli year for which the
rent is payable. Sohhuiuidri Appu Bau v. Chah-
' manmi, I. L. P. 17 Mad. 225, approved. Sriramulu
V. Sobhanadri Appa Pau, I. L. P. 19 Mad. 21,
overruled. There is no distinction in this respect
between cases in which, in the proceedings to as-
certain the rent, the Courts have approved of the
pottah tendered by the landlord and those in which
they have modified it. Raxgavya Appa Rao v.
BoBBA Sriramulu (1904) I. L. R. 27 Mad. 143

13. ss. 7, 9, 12,— Tender of pottah-^

Landlord's right to sue. \^■hore the pottah which
has been originally tendered prior to summary suit
under s. 9 of the Rent Recovery Act was one which
the tenant was bound to accept, the landlord can sue
on the strength of such tender alone, without any
fresh tender of pottah, or execution of a muchalka
after judgment. If the pottah, which has been
originally tendered, was not such as the tenant was
bound to accept and if it has been modified by a
judgment in a summary suit, and if before the ex-
piry of the Fasli to which it relates the landlord has
tendered the pottah as amended, the landlord can
also maintain a suit for rent under s. 7, relj'ing on
such tenders. But if no such tender has been made
(and even in a case where it could not have been
made by reason of the expiry of the Ftisli before the
judgment was passed) the landlord can sue for rent
only if the tenant has executed a muchalka, which
he was directed to e.xccuto by the judgment, or if
he has refused to execute it. Though s. 72 ot the
Rent Recovery Act provides that a certified copy of
the judgment of the Collector shall have the <ame
force and effect as a muchalka executed bv the ten-
ant himself the tenant cannot be said to have
refused to execute the muchalka unless, prior to
suing for rent, the landlord has made a requisition
or demand on the tenant calling upon him to
execute a muchalka in accordance with tiie judg-
ment then in force. Court of ]Vard.s v. Dhartna-
liruja, I. L. P. S Mad. 2, dis.sented from. Shunmuga
Muduhj V. Palmiti Kuppu Chetti, 1. L. P. 25 Mad.
613, followed. Bashyakakli- Naidp r. Cinda-
paneni SiB.vNNA(1904) . L Ii. R. 27 Mad, 4
14. 88. 7, 38, 39, 40. IQ-Land-

lord's right to .<f// hy summary process — Dependent on
observance of special provisions of Ad — Infringement
of tenant's rights at common law which special

( 7755 )

DIGEST OF CASES.

( 7756 )

MADEAS EENT RECOVERY ACT (VIII
OF 1865)— contd.

s. 7 — concld.

provisions not observed — Tenant'' s right of action
— Effect of the statute on that right. Under the
common law, a landholder has no right to sell his
tenant's interest in the land for arrears of rent in a
summary way. That right is given only by the
Rent Recovery Act, and prior to exercising it the
landholder must have complied with the special
provisions of the Act as to tender of proper pottah
and exchange of pottah and muchlaka. Where a
landholder, who has not comphed with these provi-
sions, summarily sells his tenant's interest in the
land, he violates the tenant's right. Such violation
is actionable in a Civil Court as an infringement of a
common law right, and that right of action is not
taken away by the Statute. The special remedy
given to a tenant by s. 40 of the Rent Recovery Act
is cumulative, and it is open to a tenant to adopt it,
if he prefers it to the ordinary proceedings in a Civil
Court. Though s. 78 of the Rent Recovery Act
only refers to recovery of damages, the ancillary
remedies of declaration and injunction would lie
even if the only right to object to an attachment
were that which is given by that Act. These re-
medies are clearly available where the right is one
at common law. Mahomed v. Lakshmipati, I. L.
E. 10 Mad. 368, commented on. Ramayyar v.
Vedachella, I. L. R. 14 Mad. 441, approved. The
question of limitation discussed. Where the pur-
chaser of a tenant's interest in land takes, without
demur, a pottah in the name of his vendor, it will
be open to him to object to that pottah (in a suit for
a declaration that an attachment was invahd),
unless he has given timely notice to the landlord
claiming that his own name should be entered in the
pottah. Ekamhara Ayyar v. Meenatchi Ammal,
I. L. R. 27 Mad. 401, and Sree Sankarachari
Swamiar v. Zarada Pillai, I. L. R. 27 Mad. 332,
referred to. Zamindae of ETTAYAPtmAM r. Sanka-
EAPPA Reddiar (1904) . I. L. R. 27 Mad. 483

MADRAS RENT RECOVERY ACT (V

OF 1865)— contd.

~ s. 8—

*See' Theft

I. L. R. 16 Mad. 364

Stiit to enforce

tetider of pottahs — Suit brought after expiration of
Fasli. A tenant is not entitled to bring a suit
under Rent Recovery Act, 1865, s. 8, to enforce the
tender of a pottah by his landlord after the expira-
tion of the Fash to which the pottah relates.
Ramasami Mudaliak v. Rathna Mudaliar

I. L. R. 21 Mad. 148
2. Landlord aiid ten-
ant— Insertion of unreasonable terms in pottah.
W^here a tenant disputes the validity of a transfer
made by himself to a tliird party, it is not open to
the landlord to recognise the rights of the transferee
until the transferee establishes his rights in a way
which is binding on the original tenant; and the
insertion of words in the pottah tendered to the
tenant recognising the rights of the transferee will
be unreasonable . Okr r. Rakkumarathi (1905)
I. L. R. 29 Mad. 83

See Jurisdiction of Revenue Cotje-
Madras Regulations and Acts.

I. L. R, 17 Mad.];
See Res Judicata — Competent Com-
Revenue Courts.

I. L. R. 13Mad. 1-

Tender of pui

during Fasli — Suit commenced after Fasli. A li
to enforce acceptance of pottah under s. 9 oihi
Rent Recovery Act, 1865, may be institw
after the expiration of the Fasli to which the p'll
relates, provided that the pottah has been ten. 3<
during the continuation of the Fasli. Bamam
Mudaliar v. Rathna Mudaliar, I. L. R. 21 .id
148, explained. Papamma v. Subbanna

I. L, R. 22 Mad. If

and s. 51— Refusal by tm

to accept pottah — "Cause of action ^^ — lioi
within which summary suit must be brought. Or
17th June 1897 a landholder tendered a p:al
to a tenant who, on the same day, refused to aep
it. On 5th August 1897 the landholder brou^ . i
suit to enforce its acceptance: — Held.i\ia,i thiuii
was brought in time. Munisami Naidu v. Krjw^
Reddi . . . . I. L. R. 23 Mad:74

3. — Rale ofrcnt^eri

rate is dispelled. Before a dispute regardin tV
rate of rent can be decided in a suit brough '
s. 9 of Madras Act VIII of 1865, mereh
ground of what appears to be just, the Coiu !
consider the reasonableness of the rate accordg u
the local usage, and when such usage is not -cer
tainable, according to" the rates for neig'i'^'
lands of similar description and quality. I .
Rau V Mahadeva Mudali. Kristna Rau
APPA Mudali. Kristna Rau v. Solayappa ^
Kristna Rau v. Chinna Subbu Mudali. 1-
Rau v. Krishna Mudaj.i . . 6 Ma

4. 2>/.'"

Tender of pottah — Notice — Zamindar and
W^here the parties are bound to exchangf
engagements in the shape of pottahs andmu
the landlord must, in order to maintain a su
s. 9 of Madras Act VIII of 1865 to enforce
ance of a pottah, show that he has tendered a
in writing. A mere indefinite demand '"
whether written or im written, is not suftn
sustain ^ such a suit. Chanda Miah S
Lakshmana Aiyangar . I. L. R. 1 M

5. Joint shnfyaf"

dars — Distinct Contract by tenant in respe' of i
share. The plaintiff was one of two joint irotn-
yamdars. In Fasli 1288 the defendant acowda
pottah from, and executed a muchallca to'imio
respect of the half share of the plainti The
plaintiff sued to enforce acceptance of a pota ana
execution of a muchalka for Fasli 1290 "i '°"
arrears of rent '.—Held, that the suit lay itM""

{ 7757 )

DIGEST OF CASES.

( 7758 )

A.DRAS RENT RECOVERY ACT (VIII
DF 1865)— con^A

S. 9 — contd.

jiader of the other joint shrotriyamdar. Purtj-
tpTTAMA V. Rajc . I. L. R. Mad. 11

i). . Copy of -potiah —

Jkfer of potiah. A landholder tendered to his
I ,ant a notice stating that his pottah, of which the
I ticulars were given, had been prepared, and call-
1 on him to come within a month to the zemin
t chery to fetch the pottah and execute the
nchalka : — Hdd, that there was sufhcient tender of
e,ottah to support a suit under s. 9 of the Madras
tftt Recovery Act. Makuthappa v. Krishna

I ' I. L. R. 12 Mad. 253

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— contd.

1. — Tender of pottah

tpoat — Landlord and tenant. A landlord sent a
ptah by post to his tenant, who declined to
I Ave it: — Held, the tender of the pottah by post
not sufficient to support a suit under s. 9 of the
ijlraa Rent Recovery Act. Satminatha v. Vir-
I. L. R. 13 Mad. 42

Omission

tiler a pottah — Bent claimed by landlord not havinij

(e'ered kqal pottah. A landlord, not having

tilered a legal pottah to his tenant, made a de-

nrlid on him as for rent, and, on his refusal to pay,

alched his holding. The tenant, to release the

alichment, paid the sum demanded under pro-

t«. on 23rd September 1885. On 22nd March

IJji the tenant filed a suit on the small cause side

oljie District Munsif 's Court to recover the amount

>"'!iid : that suit was dismissed for want of juris-

on 2nd September 1886. On the last-

i-d date the tenant tiled the present suit

I me cause of action : — Held, that the land-

having tendered a legal pottah, was not in a

1 to establish any right to recover rent

_ or by way of set-oti. Kui.i.ayappa v.

UMiPATHi . . I. L. R, 12 Mad. 467

and S. 7 — Demand of pottah-

'^■nt Recovery Act does not require that
lit demanding a pottah shall apply in
•I the landiiolcter specifying the lands and
;. for which the pottah is required. Strini-
Xarayanasami I. L. R. 8 Mad. 1

and ss. 10, 7— ^S?«Mo enforce

«*■] of tenancy — Suit to determine terms of tenancy

-—\Uah — Jurisdicti&n of Revenue Court. A suit

'" - '^. 9 of Madras Act Vlli of 1865 to enforce

[)tance of a pottah is not a suit to enforce

11^' of a tenancy within the meaning of s. 7

-.me Act, but a suit to determine those

Zamindar of Devaracota. v. Vemiki

VA . . I. L. R. 1 Mad. 389

and ss. 10, 11. A summary

■ ^ landlord to enforce the acceptance of a

inder the Madras Rent Recovery Act should

iismissed on a finding by the Appellate

at the pottah tendered was not a proper

The Appellate Court ought to pass the

s. 9— contd.

decree which the Court of first instance should ha\
passed. Nagaraja v. Kasimsa

I. li. B. 11 Mad. 2

12.

and ss. 10, 11 — Improper stipu-

lations in potiah — Claim of tenants to hold over land
after expiry of lease — Civil Procedure Code, s. 544.
In summary suits brought by a landlord to enforce
acceptance by his tenants of pottahs tendered by
him for the current Fash it was pleaded that the
pottahs were improper in that they did not
comprise certain land of which the tenants
were in possession and in which they claimed per-
manent occupancy-rights, and also in that they con-
tained various terms which the plaintiff was not
entitled to impose on the defendants, providing,
inter alia, (i) that interest should be payable on the
several instalments of rent as they became due ;
(ii) that the defendant should not fell certain trees
except for agricultural purposes ; (iii) that the
defendants should not reap their crops without
previously obtaining the plaintiff's permission ;
(iv) that on a change made without the plaintiff's
permission from dry to wet cultivation, the tenancy
should be forfeited in case of default made by the
defendants in paying the amount of Government
assessment, and also an undetermined sum then to
become payable by the defendants to the plaintiff
in addition to the rent. The defendants failed
to prove the permanent occupancy-rights' claimed
over the land not comprised in the pottahs, and it
appeared that they had held leases from the plaint-
iff for the land in question for a period of three
years and had held over after the expiry of the
leases without the permission and contrary to the
wishes of the landlord ; and it further appeared that
the provision as to trees did not extend to shrubs,
etc., and had been an accepted term in the pottahs
issued for ten years. The Revenue Court modified
the terms of the pottahs and passed decrees that the
pottahs as modified be accepted against which some
only of the defendants appealed, and the District
Judge on appeal introduced further modifications
into the pottahs. Held (i),that the District Judge
had no jurisdiction under Civil Procedure Code,
s. 544, to introduce further modifications into the
pottahs in favour of the defendants who had not
appealed according to the opinion formed by him in
appeals preferred by the defendants in other suits ;
(ii) that the defendants were not entitled to have the
pottahs modified by enlarging the extent of the land
comprised in them, or by the cancellation of the pro-
visions as to interest and as to feUing trees ; (iii) that
the defendants were entitled to have the pottahs
modified by the cancellation of the provision as to
reaping crops and of the provision for forfeiture.
Ranoayya Appa Rau v. Kadiyai.a Katnam

I. L. R. 13 Mad. 249

13. and ss. 79, SO—Yeoviiah

lands — Unregistered holder render irig service
and granting pottahs — Estoppel by acquiescence of

( 7759 )

DIGEST OF CASES.

( 7760 )

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— contd.

— s. 9 — concld.

persons entitled to the yeomiah holding. A yeo-
mialidar died, leaving a brother, who was then out of
India. Shortly before his death, he made an invalid
assignment of his holding to a third person who per-
formed the service, and granted pottahs of the land.
The holding was resumable on failure of the service.
The brother of the late yeomiahdar returned after
three years and obtained registration of his title.
He now filed this suit to enforce acceptance of pot-
tahs tendered by him to the raiyats, who had
already accepted pottahs from, and executed much-
alkas to, the assignee. Held, that the suit was not
maintainable, as under the circumstances the
plaintiff's conduct justified the tenant's belief
that the assignee was entitled to collect rent from
them until the assignment was questioned by the
plaintiff, and notice of his title given to him.
Khadar v. Subbamanya . I. L. R. 11 Mad. 12

14. Landlord and

tenant — Right to issue patta for unassessed house-site.
It being common in this country to have trees in
backyards forming part of unassessed house-sites,
such a circumstance does not amount to a conversion
of such site enjoyed free of rent into cultivated
land for which rent is payable and no pottah can be
tendered in respect of such lands. Elttmalai
Chettiar v. Natesa Mudaliar (1905)

I. L. R. 29 Mad. 81

ss. 9, 10, 11 — Suit to compel

acceptance of pottah — Provisio7i in pottah for pay-
merd of rent in kind — Power of Court to amend
pottah by providing for payment in money —
"Rent." The term " rent," as used in s. 11, para-
graphs (1) and (2) of the Rent Recovery Act,
includes rent of every description, whether pay-
able in kind or in money. Polu v. Ragavam-
mal, I. L. R. 14 Mad. 52, explained. Where rent
is" payable in money, but a pottah has been ten-
dered, which provides for the payment in kind,
the Court has power to amend the pottah.
Mahasingavastha Ayya v. Gopaliyan, 5 Mad. H.
C. 425, approved. Whether a contract in terms
to the effect that rent is payable in money but
at a rate to be determined by the Court as rea-
sonable would be a contract within the meaning
of s. 11 (i). Qiicere : Rent had been paid in
money from Fasli 1288 to Fasli 1308, at rates which
had varied. On its being contended that the Court
could find, from the mere fact of these past pay-
ments, that there was an implied contract between
the parties that rent was to be payable in money at
a rate to be determined by the Court : — Held, that
such an implied contract could not be found. To
warrant such a finding, the circumstances should be
such as to suggest an agreement to pay at some de-
finite rate. Kavipueapu Rama v. Rao Dirisa-
VALLi Narasayya (1904) . I. L. R. 27 Mad. 417

B. 10—

See Jurisdiction of Civn, Court —
Pottahs . . I. L. R. 17 Mad. 1

MADRAS RENT RECOVERY ACT (VI
OP 1865)— contd.

s. 10 — contd.

See Jurisdiction of Civil Cour--

Revenue Courts — Orders of Re.

NUE Courts . I. L. R. 9 Mad. )

I. L. R. 21 Mad. 4S

^ee Jurisdiction of Revenue Coue'-

Madras Regulations and Acts.

I. L. R. 17Mad.])
See Limitation Act, 1877, Art. 110.

I. L. R. 17Mad.l5
I. Ii. R. 19 Mad, I

1. Ii. R. 22 Mad. 248, 249 notes, 250 n.i

See Superintendence of High Cock -
Civil Procedure Code, s. 622.

I. L. R. 16 Mad. -^l

1. Power ofColhr

to enforce ejectment for default — ^'Default," meat g
of. Qucere : Whether a Collector can enforce ej ;•
ment for the default specified in s. 10 of the R t
Act, where the ultimate judgment in the case 8
been that of an Appellate Court, and not of his (n
Court. Semble : " Default " in s. 10 of theP.t
Act means wilful default. Yakub Sahib v. Jaf R
Ali Sahib . . . I. L. R. 4 Mad. 7

2. and s. 69. A landlord ha'g

sued his tenant under the Rent Recovery Acto
compel him to accept a pottah, the Revenue Get
directed the tenant to accept the pottah as amend
by the Court. On appeal by the tenant, the 3-
trict Court directed a further amendment of le
pottah. Three months after the decree of the \-
trict Court, the landlord applied to the Reveie
Court to eject, the tenant under s. 10 of the Fit
Recovery Act for not accepting the pottah d
executing a muchalka, and six months after »e
date of that decree the Revenue Court ordered^e
tenant to be ejected -.—Held, that s. 10 of the lit
Recovery Act (which provides that, if within Jn
days from the date of the Collector's judgmentke
defendant shall not have accepted the potta''?
approved or amended by the Collector, ami
not have executed a muchalka in the terms
said pottah, the Collector, on proof of such il
shall pass an order for ejecting the defer.
did not warrant the order. Yakub v. Nara-i

I. Ii. R. 7 Mad.

-Purchase a/(

sale of former tenanVs interest in land — Liahu
purchaser for rent, as from date of confirmatic^i
sale. Defendant had purchased at a Court-saltpe
interest of a former tenant in certain land i' »
zamindari. The sale was confirmed on 31st Mp
1900, and possession was given to defendan|t>n
11th May 1900. The landlord now sued tOi-o-
force the acceptance by defendant of patta for i,**
1309, being the year commencing on 1st July, 't"
and ending on 30th June, 1900. By the terms o he
muchlikas which had been executed by the fo'er
tenant, rent was payable in four equal instalnr'
on 1st October, 1st February, 1st April and 1st '

( 7761 )

DIGEST OF CASES.

( 7762 )

a J)BAS RENT RECOVERY ACT (VIII
F 1865)— co7itd.

8. 10 — condd.

hi, that the defendant was liable for the instal-
n: ta which fell due subsequently to the eonfirma-
ti of sale, namely, on 1st April and 1st May, 1900.
h L also, that if was immaterial (in regard to his
li) lity for rent), when he recovered actual posses-
si of the land. Ramasami Mudaliar v. Anna-
D.,ii Ayy.\r (1901) . I. li. R. 25 Mad. 454

j Suits to enforce

aAotanceof patta — Necessity for tender of patta after
jument, where patta originally tendered is either up-
)u\ or amended. Where a tenant has been ordered
b} judgment passed under s. 10 of the Rent
R ivery Act, to accept the patta which has been
te erod to him, I rsueh amended patta as the judg-
m : declares ought to be offered to him, and to
Bx lite a muchaUca in accordance -^vith it, the tenant
is lit liable to be ejected under s. 10 unless the
lai'ord proves that, within a reasonable time after
th (late of tlie judgment, not exceeding ten days
ih 'from, he tendered to the tenant the patta as
ap,()\ed,or as amended by the Court, and that the
lei it did not accept the same and execute a niuch-
a// before the expiration of the said period of ten
Jaj Court of Wards v. Darmalinga, I. L. R.
8 lad. 2, commented on. Shanmuga Mudaly
V. jLNATi Kuppu Chetty (1902)
I I. L. R. 25 Mad. 613

] ss. 10, 41 — Incumbrances hy

ttit t and svb-irquent eject7ne7it — Effect of ejectment
m : wne incumbrances. The ejectment of a tenant,
iinr 8. 10 or 41 of the Rent Recovery Act operates
iio'inly as a determination of the tenant's right of
ttCioancy ; but also as an extinguishment of all
me* incumbrances and subordinate interests
LTf 3d by the tenant. A tenant gave a usufruc-
tut, mortgage over his land and covenanted to
■■' ■ tl>» amount. About two years thereafter the
idar obtained a decree against the tenant
him to accept a pottah as settled by the
if. On his failure to do so the tenant was
The mortgagee now sued the tenant and
•riemdar, claiming a personal decree as
•lio tenant and the sale of the mortgaged
:is against the shrotriemdar, in whose pos-
it was. Held, that the mortgagee was not
"I '1 to an order for the sale of the mortgaged
pr< ; rty. Ekambaka Ayyar v. Meenatchi Am-
^'A 1904) . . . I. L. R. 27 Mad. 401

— 8S. 10 and 69 — Adjudication

)laintiff Kds failed to prove default by defendant

Judgment" — Appeal, An order passed under

'• lj)f the Rent Recovery Act, which amounts to

■> juJication that the plaintiff has failed to

fault on behalf of the defendant, is a

lit " within the meaning of s. 69 of the Act,

! ipoal lies therefrom. N arasimhasxuami v.

innui, I. L. R. 22 Mad. 43/i, followed.

^ Papayya Rao v. Venkata Subbayya

. I. L. R. 25 Mad. 453

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— coiitd.

1. 8. 11 — Wat^r-cess — Tenants —

Cultivation improved by water taken from landlord's
tank. A landlord has a right to charge water-ces3
when his tenant cultivates a wet crop on dry land or
a second wet crop on wet land by means of water
taken from the landlord's tank. Thayammal v.
MuTTiA . . . I. li. R. 10 Mad. 282

2. els. 1, 2, 3, A— Improve-
ments effected by tenant — Enhancement of rent —
Sanction of Collector. The sanction of the Collector
required by the proviso to cl. 4, s. 11 of the Rent
Recovery Act, as a condition precedent to the
enhancement of rent when the landlord has im-
proved the land or has had to pay additional assess-
ment to Government, is not requisite, w hen, improve-
ments having been made by the tenant, the land-
lord seeks to enhance the rent. Per Muttusami
Ayyar, J. — The proviso to cl. 4 of s. 11 of the Rent
Recovery Act implies that, when the tenant has
improved the land at his own expense, the landlord
is not entitled on that ground to enhance the rent.
Semble . Cl. 1 of s. 11, which provides that all con-
tracts for rent, express or implied, shall bo enforced,
cannot be so applied as to deprive a tenant of the
benefit of improvements made at his own expense.
Per HuTCHiNS, J. — When improvements have bech
made by the tenant, the proper rate of rent has to be
determined with reference to the several provisions
of s. 11, quite irrespective of the improvements.
Venkatagiri Raja v. Pitchana

I. L. R. 9 Mad. 27

3. Rule 3— Rate of rent, Deter-
mination of — Neighbouring lands of similar kind.
The provision in Madras Act VIII of 1865 s. 11,
rule 3 — "And when such usage is not clearly
ascertainable, then according to the rates established
or paid for neighbouring lands of similar description
and quality,"— does not admit of rates of rent being
determined on an average of varying rates paid for
neighbouring lands ; but it does not require, for
determination of the proper rate of rent for parti-
cular lands, the existence of a fixed general rate of
rent for neighbouring lands of similar description
and quality. The words "according to the rate
established or paid" import clearly the power to
determine the rate of rent in accordance with either
the general rate at which neighbouring lands of a
similar kind are let, or, where the rents of such lands
vary, the rate at which rents had for any time been
actually paid by some of the tenants of such lands.
Maha Singavastha Ayyar v. Gopala Ayyas

6 Mad. 239

4. Implied contract.

Where a landlord, having for many years accepted
rent at "dry rates " from a tenant for cert-ain land,
sued the tenant to enforce acceptance of a pottah at
" garden " rati-s, on the ground that the tenant had
raised a crop with water taken from a well construct-
ed bv the tenant : — Held, that there was an implied
contract within the meaning of s. 11 of the Rent
Recovery Act to accept rent at " dry " rates, and
that plamtiff was therefore not entitled to enhance

( 7763 )

DIGEST OF CASES.

( 7764 )

MADRAS RENT RECOVERY ACT (VIII

OF 1865)— cowW.

s. 11— contd.

the rate of rent, the improvement having been
effected at the expense of the tenant. Krishna v.
Venkatasami . . . I. L. R. 8 Mad. 164

5. — ] ^ Provision in pot

tall for increasing rate of assessment for garden culti-
vation. A provision in a pottah for increasing the
rate of assessment if garden cultivation is carried on,
or if a second crop is raised, is not illegal, but comes
within the provisions of s. 11 of Act VIII of 1865.
Vaythenatha Sastrial v. Sami Pandither

I. L. R. 3 Mad. 116

6. Enhanceinent of
rent — Custom. The imposition by a zamindar of
garden assessment on land brought under garden
cultivation by a tenant who improved the land by
sinking a well after 186;"i is illegal, although there
might be a custom in the zamindari of charging a
varying assessment according to the kind of crop
raised. Fischer v. Kamakshi Pillai

I. L. R. 21 Mad. 136

7. Rule 4 — Hindu laiv — Alienation

— Poiver to make leases. The second proviso
contained in rule 4, s. 11, Madras Act VIII of
1865, does not apply to a lease which is bond fide
and valid under the general Hindu law, and, as such,
falls under rule 1. This proviso does not amount to
a repeal of the Hindu law regarding ordinary leases,
but applies only to such leases when, in the circum-
stances in which they are made, they amount to a
fraud upon the power of the grantor's successor as
manager or to alienations made for the personal
benefit of the grantee and to the prejudice of the
successor. Ramanadan v. Srinivasa Murti

I. L. R. 2 Mad. 80

8. Change of culti-
vation— Sanction of Collector. Where a landlord
claimed to revert to manjai rates (assessed on
irrigated land) of rent on the ground that he had
repaired a tank, which for years had been unrepair-
ed : — Held, that the sanction of the Collector was
not required by s. 11 of the Rent Recovery Act.
Lakshmanan Chetti v. Kolandaiveltj Kudumban

I. L. R. 6 Mad. 311

9. Sanction of Col-
lector— Suit for increased assessment on ground of im-
provements. In a suit before the Collector under
Madras Act VIII of 1865, brought by a zamindar to
compel hi'^ tenant, the defendants, to accept a pot-
tah at enhanced rates of assessment, on the ground
that he had at his own expense repaired a tank and
rendered the land formerly cultivated as dry land
capable of being cultivated as wet land -.—Held, that
the plaintiff could not maintain the suit, inasmuch
as he had not obtained the sanction of the Collector
to raise the rent, and such a condition was a condi-
tion precedent to such a suit. Se77ible : That the
right of the plaintiff to recover was dependent
on the further condition that an additional revenue
was levied on him consequent upon the improvement
made. Kattasawmy v. Sandama Naik

5 Mad. 294

MADRAS RENT RECOVERY ACT rVl
OF 1865)-contd. ^

— s. 11 — contd.

^P' ' Implied coitiu

as to rates of rent — Customary fees— Restraint i
building — Landlord and tenant. In order to s.
port the inference of a contract under the Mad i
Rent Recovery Act, s. 1 1, from payment of the sa ■
rent for a given number of years, the intention 1 1
the same rent is payable in future years must i
clear and unequivocal : it is unsafe to imply su
a contract from a single lease for five years, l
pottah is not unenforceable by reason of its pro^ -
ing for the payment of fees to vDlage artizans 1 1
case where such fees are customary, or by reaso; f
its prohibiting the tenant from erecting build U
on his holding, if such prohibition is limitec 5
erections not compatible with the agriculti.1
character of the holding. Lakshmana v. Afpa Ij
I. Ii. R. 17 Mad. 3

!!• — • Assignee of ;-

venue — Suit to enforce acceptance of pottah by rai t
— Terms of pottah. An inamdar, who was assig 3
of the revenue of land, sued to compel a raiyato
accept a pottah for the land at varam rates ur-r
the provisions of s. 11 of the Rent Recovery Act-
Held, that the only pottah which the defencit
was bound to accept was a pottah prescribing ]'•
ment of the revenue charge on the land. PALi:-
appa v. Ray a . . I. L. R. 7 Mad. 15
12. ■ - Reduction of 9-

sessment in pottah of 1S40 — Pottah prescribing re to
he paid permanently by tenant. In 1840 a mittar
granted to a ten^t a pottah for certain laniin
which the tenant had already a heritable estate,!-
ing the rent at the reduced rate R40. The da-
ment provided " this sum of R40 you are to y
perpetually every year per kistbandi in the nU
cateheri." It appeared that the rent fixed was 88
than what was payable upon the lands previoito
the date of the pottah and also le.-s than i»t
payable upon neighbouring lands of similar qu:ty
and description : — Held, that the reduction inM
rate of rent was not invalidated by jBt
Recovery Act, 1865, s. 11. Foulkes v. Mttthumi
Goundan . . . I. L, R. 21 Mad. )8

13. Reduction of;nt

— Improvements by tenant — Whether grant of rifC'
tion binding on successors. Where a landhder
has granted a reduction of rent otherwise projlly
payable in respect of land, the mere fact thatM
tenant has made some improvements subsequejW
the grant does not bring the case within the cap-
tion to the proviso of s. 11 of the Madras Rent'.o-
CO very Act, 1865, so as to be binding on the IM'
holder's successor. Obai Goundan v. Ramal'JA
Ayyar . . . . I. L. R. 22 Mad 17

14. and S. 9 — Condition of pot.'—

Established rate of rent — Rent in kind. The za in-
dar of Vallur sued certain raiyats ii'^s
pergunnah of Gudur to enforce the accepfi^*
of pottahs providing, among other conditions, lat
the raiyats should relinquish their holdings actie
end of the term unless fresh pottahs were tendeil to

( 7765 )

DIGEST OF CASES^

( 7766 )

AJ)RAS RENT RECOVERY ACT (VIII
DP 1865)— contd.

MADRAS RENTJRECOVERY ACT (VIII
or 1865)— conid.

s. 11 — contd.

Ism, that they should pay half the cost of repairs
1' a cess proportioned to the wet rate, that if they
igated dry land they should pay a wet rate to
V zamindar, as well as the water rate due to
(Ternment, that they should not cut crops without
) mission, and should supply grass and vegetables
I the zamindar' s servants. It appeared that in
; iS the pergunnah in question was surrendered to
( vernment who restored it subject to the payment
( I newly-assessed peishcush in 1802, a date when
t present defendants were already in occupation of
1 ir respective holdings. In the interval, Govern-
I i.t collected village rents in money. The per-
( inah was not surveyed, and a money assessment
I 'd prior to 1859. The District Judge expunged
f' conditions in the pottah above referred to,
f I held that the zamindar was entitled to collect
\ way of rent from the raiyats respectively, the
Ota of the village rents which each raiyat paid in
lid. He found, however, that there was no con-
t'ct, express or implied, as to the rent to be paid ;
I'll that prior to 1851 the raiyats held their lands
I ier the zamindar on the sharing system, and

I t for the first year after the restoration of the
Igunnah the arrangement enforced by Govern-
rlnt had remained in force, but that from 1863 to
1|0 the sharing system was in force, and varam
Yi paid by the raiyats, after which for five years in-
' idual money rents were collected, and then there
\,"e two leases with money rents each for a period
c|3ve years. Held, (i) that the conditions in the
f^tah above referred to were unenforceable and

I I been rightly expunged ; (ii) that the plaintiff's
r.its were not limited by the rates of rent paid to
C.-ernment in 1861, but that the rent should be
t|;harged in kind according to the established rate
f|.-aram in the village ; (iii) that the plaintiff was
*|itled to recover from the raiyats half the water-
t| payable on the poramboke lands irrigated from
t| Kistna anient. Ven:k.'Vta Narasimha Naidu
fjlAMASAMi . . . I. L. R. 18 Mad. 216

|5. — Suit to assess

;\>per rate of rent — Determination of rate of rent. In
suit by the plaintiffs as inamdars to compel the
tljndant.s, occupiers of plaintiff's land, to accept
jjtahs under Madras Act VIII of 1865, the defend-
«J8 objected to the rates of rent claimed by the
Jintiffs. There was no contract between the
F lies as to the rent to be paid, nor was there any
ab'ssment made under a survey made previous to
t| Ist January 1859' Held, that the proper rent
t|)e paid by the defendants was to be determined
ajording to the rates established or fixed for neigh -
t ring lands of a similar kind. Mahasingavastha
■^ 'AR V. Gopaliyan. Gopaliyan v. Mahasinoa-
^ THA AiYAE .... 5 Mad. 425

■ ; Contract to pay a

din rent implied from payme.it in past years.

11 of the Rent Recovery Act provides that in

decision of suits involving disputes regarding

8. 11 — contd.

rates of rent which may be brought before Collectors
under ss. 8, 9, and 10, all contracts for rent, ex-
press or implied, shall be enforced. Held, that
payment of rent in a particular form at a certain
rate for a number of years is not only presumptive
evidence of the existence of a contract to pay rent
in that form or at that rate for those years, but
is also presumptive evidence that the parties have
agreed that it is obligatory on the one party to pay
and the other to receive rent in that form and at
that rate, so long as the relation of landlord and
tenant may continue. Venkatagopal v. Ran
GAPPA . . . I. L. R. 7 Mad. 365

17.

Enhanced rent on

irrigated land — Sanction by Collector of enhanced
rent — Customary contribution to a temple — Implied
contract — Landlord and tenant. A zamindar ten-
dered to raiyats on his estate pottahs providing,
inter alia, for the payment of (i) certain fees to
a Hindu temple, (ii) rent in which the land assess-
ment was consolidated with a water-cess in respect
of certain land irrigated under the Kistna anient.
There was nothing to show that the former of thase
items constituted a charge on the land and the latter
had not been sanctioned by the Collector under the
Madras Rent Recovery Act, s. 11, but it was found
that both had been paid b\^ the raiyats for many
years. The Court of first appeal held on this find-
ing that theie were implied contracts on the part
of the raiyats to pay both items. Held, (i) that the
temple fee was primd facie voluntary, and should
not be treated as a payment which the zamindar
could compel a raiyat to make, and consequently
that the pottah tendered to him was an improper
pottah ; (ii) that the finding as to the existence
of an implied contract to pay the second of the
above items was a correct finding, in accordance
with the ruling in Venkatagopal v. Rangappa, I. L.
B. 7 Mad. ,30-5. The first proviso to the Madras
Rent Recovery Act, s. 11, is not restricted in its
application to rates of original rent as contradis-
tinguished from its enhancement on account of
improvements. Siriparavu Ramaxn'a v. Mallik-
ARjuNA Prasada Navudu . L. R. 17 Mad. 43

18. KnhaW'd rent on

irrigated land — Sanction by Collector of enhanced
rates of rent — Implied contract to pay rent at a
certain rate. — Lniidlord and teiuinl. In a suit
brought by the Collector of a district, as receiver of
zamindari, against a tenant on the estate to enforce
the exchange of pottah and muchalka, it appeared
that the rent demanded was assessed at an enhanced
rate, and comprised consolidated wet rate imposed
on account of irrigation. To the enhancement of
the rent by the addition of the water rate the sanc-
tion of the Collector required by the Madras Rent
Recovery Act. s. 11, first proviso, had not been
obtained. Held, that such sanction could not be
implied from the fact that the Collector, as such
receiver, had caused the provision in question to be

( 7767 )

DIGEST OF CASES.

( 7768 )

MADRAS BENT RECOVERY ACT (VIII
OF 1865)— contd.

a. 11 — contd.

inserted in the pottah, and now sought to enforce it
by suit. Upon the question whether, from the fact
that the tenant had paid the water rate in question
for some years previously, an implied contract to
pay it for the future could be inferred : — Held, upon
the facts of the present case, that no such contract
could be inferred. With reference to the Full
Bench decision in Venlcatagopal v. Eangappa, I. L.
R. 7 Mad. 36-5, the Court stated what was the
principle to be kept in view in considering whether
an implied contract to pay enhanced rent could be
inferred. Mallikarjuna Prasada Nayudxj v.
Lakshminarayana . . I. L. R. 17 Mad, 50

19.

-Enhanced rent on

irrigated land — Sanction granted by Head Assist-
ant Collector — Giisiomanj rent — Implied contract
— Restraint on building — Landlord ani tenant.
A Head Assistant Collector is competent to grant
a sanction for the enhancement of rent under the
Madras Rent Recovery Act, s. 11. The granting
of such sanction is a judicial and not a merely ad-
ministrative act, and such sanction should not be
granted without first giving notice to both the land-
lord and the tenant, and hearing and considering
the contentions of both parties. In a suit by the
landlord to enforce the exchange of a pottah and
muchalka, the tenant objected to the rate of rent
imposed on part of the land, which was dry land
converted into wet : — Held, that the finding of the
lower Appellate Court that there was an implied con-
tract to pay rent at such rate was not open to any
legal objection. It appeared that the pottah tend-
ered contained a stipulation for the payment of rent
at a special rate for garden (jarib) lands watered by
wells which had been constructed by the raiyat at
his own cost and also comprised a stipulation that
the raiyat should not build on his holding. The
Court of first appeal held that the special rate of rent
above referred to was customary, and had been
followed for many years. Held, that there was no
ground for interference on second appeal with the
lower Appellate Court's decision regarding the form-
er of the stipulations above referred to, but that the
latter should be so modified as to prevent the raiyat
only from raising any building incompatible with
an agricultural holding. Bhupathi v. Rangayya
Appa Rau . . . I. L. R. 17 Mad. 54

20, Implied contract

as to rent — Land irrigated under Kistna anient —
Collector's sanction to increase of rent. Land in a
zamindari in the Kistna delta was newly irrigated
from anient channels. The zamindar tendered
pottahs at wet rates : — Held, (i) that the zamindar
was not entitled to levy increased rates without the
Collector's sanction.under s. 11 of Madras Act VIII
of 1865, although he had expended money on the
channels ; (ii) that payment for five years of such
wet rates under a five years' lease did not imply a
contract to continue such payments ; (ill) that a
stipulation in the previous lease binding the tenants

MADRAS RENT RECOVERY ACT fVTi
Q-F 1QQ5)— contd.

s. 11 — contd.

to pay such increased rates in cas3 of future i
gation did not bind the tenants after the term ,
that lease expired. Narasimha Naidu v. Ram
SAMi . . . . I. L. R. 14 Mad. 4

21.

Lands irrigat

-Madras Act VII of 186.5, s. 4-

from Kistna anicut-

Restriction as to felling trees — Implied contract
to rent. A zamindar holding lands irrigated by ti
Kistna anient, from whom no extra peishciioi^
on that account levied by Government, 1
entitled to impose on his tenants a "wet i-
of rent without the permission of the Collett.
under s. 11 of Madras Act VIII of 1865. Tl
fact that the tenants have paid rent at such
rate for six years is not sufficient to establish a,
implied covenant to continue to do so. It '
allowable for a landlord to insert in his pottahs
term to the efJect that the tenant shall not fei
trees without his consent. Apparatt v. Nab
SANNA .... I. L. R. 15 Mad. 'J

22. ^ --Formofpotla}^-

Form of rent determined by implied contract
Variation in amount of rent. In a landlord's suit '
enforce acceptance of a pottah and execution oi:
muchalka by the defendants it appeared that ti
predecessor in title of the defendants had accept
from the predecessor in title of the plaintiff in U^
a cowle for eleven years, which provided for p;-
meats in kind, but since the expiry of that perioil •
rent had always been paid in money, thougli •
amount varied. The tenant was described in
cowle as a sukavasi raiyat, and the defem!
also claimed to be sukavasi ttenants. Held,

it was unnecessary to determine the cause of "
variations in the amount of rent, and that
agreement that the rent should continue to
paid in money should be implied, and the landlU
accordingly was not entitled to impose a pot<ji
providing for payment of rent in kind. Pf
V. Ragavammal . . I. L. R. 14 Mad

23. CI. 4Sn':

by Deputy Collector of enhanced rent — Cancell
of sanction by Collector — Validity — Mad. Reg. I
1S03, s. 9~Mad. Reg. VII of 182S, s. 3—Pov
supervision vested in Collector — Tender of patta n-
Fasli — Order sanctioning enhanced rent, p-
after Jermination of Fasli — Effect on patta.
general powers of a supervision given to a Colli'
by s. 9 of Mad. Reg. II of 1803 and s. 3 of M
Reg. -VII of 1828 include the power to set asid-
order of a Deputy Collector, passed under s.
cl. 4, of the Rent Recovery Act, sanctioning;
increase in the consolidated re at payable by tena-
A landholder must tender patta to his tenant wijo
the fasli to which it relates. Pattas were tend»
to tenants prior to 1st July, 1898, in respect of /«'•
1307, which ends on 30th June, 1898. In tl^«
pattas the landholder claimed a rent which "
enhanced at the rate of one rupee per acre. ^

( 7769 )

DIGEST OF CASES.

( 7770 )

K DBAS RENT RECOVERY ACT (VIII
F 1865)— co7j/rf.

8. 11 — concld.

51 .ncement was justified on the ground (among
ot re) that the Government had added a corre-
■ij idinp increase to the water-rate and that the
D uty Collector had under s. 11, cl. 4, of the Rent
R )very Act sanctioned the enhanced rent. Such
ai rder had, in fact, been passed, but it had been
i;f' elled by the Collector, who remanded the matter
10 te Deputy Collector to make inquiry and to pass
ft esh order, without retrospective efiect. The
D Jty Collector passed a fresh order on 29th Au-
i?i . 1898 — nearly two months after the close of the
Fi- 1307, for which the paUas had been tendered,
n order sanctioned an enhancement of 2 annas
■i ?s per acre. On suits being filed to enforce
lu ptance of paitas containing enhanced rent at the
rn of one rupee per acre : — Held, that the Collector
liii power to cancel the order sanctioning the en-
lii ement at the rate of one rupee per acre, which,
•n nsequence, could not be enforced, and that an
i;n ncement of even 2 annas 3 pies could not be
i'Ij led, as the pattas were bound to be and had
b© tendered prior to 30th June, 1898, in respect of
F'.: 1307, which ended on that date, and the ten-
Mii were not bound to accept pattas in which an
•n need rate not siinctioned by the Deputy Collec-
ts 1129th August was charged. Zamindarniof
N ivOLE r. Sagirazu Krishkam Razu (1902)
I I. L. R. 26 Mad. 456

'^■■. Agreement to pay

'•]>■ il rate for particular crops is not an enhance-

"I' of rent and is not invalid under s. 11. Where

'litindlord and tenant, in committing the waram

• II a money rate, agree that the latter should pay

im .creased rate for certain cultivation, such agrec-

ini , even if it secures to the landlord an increased

lerin consequence of improvements effected by

th.;tenant, is not an enhancement within the

li' •■'' prohibition of s. 11, proviso 1 of the Rent

Act, as it only secures to the landlord the

'• would have under the waram system, to

' 1 UL- could revert in the absence of a contract.

■\ 'ijtom by which an increased rate is payable on

*>^ cultivation even when carried on by improve -

I'lcted by the tenant is not illegal or unen-

as opposed to the policy of s. 11 of the

overy Act. Fischer v. KamaJcshi Pillai,

-I Mad. 136, distinguished. Gopalaswami

V. Fischer, I. L. R. 28 Mad. 328, distin-

SuppA Pillai v. Naoayasami Thumbi-

AiCKEB (1907) . . I. Ij. E. 31 Mad. 19

8. 12—

See Jurisdiction of Revenue Court —
Madras Regulations and Acts.

7 Mad. 53

'S'ee Landlord and Tenant — Abandon-
ment, Relinquishment, or Surrend-
er OF Tenure . I. L. R. 13 Mad. 124
I. L. R. 15 Mad. 67

MADRAS RENT RECOVERY ACT (VIII
OP 1865)— ronfrf.

s. 12 — contd.

See Onus of Proof — Landlord and
Tenant . I. L. R. 16 Mad. 271

"Tenants" — Term

not restricted to agricultural tenant. S. 12 of the
Rent Recovery Act provides that tenants ejected
without due authority by landholders may bring a
summary suit before the Collector to obtain rein-
statement with damages. Held, that the word
" tenants " is not restricted to agricultural tenants
only, but includes the permanent lessee of a mitta.
Subbaraya v. Srinivasa . I. L. R. 7 Mad. 580
See Baskarasami v. Sivasa.mi

I. L. R. 8 Mad. 196

2. Issue of pottah,

effect of — Receipt of rent — Suit for possession —
Ejectment. On the true constiiiction of s. 12 of the
Madras Rent Recovery Act (Madras Act VIII of
1865) the issue of a pottah is not intended to do
more than prevent the arbitrary ejectment of ten-
ants, and does not give them a right of permanent
occupancy ; and it did not therefore prevent a
plaintiff, though he had issued pottahs to the de-
fendant, from recovering the lands from him, and
he was not bound merely to receive rent. Sathia-

NAMA BhARATI V. SaRAVANABAGI AMMAL

I. li. R. 18 Mad. 266
3.

Right of tenants to

relinquish their lands at end of year — "Tenants " —
Rights of permanent lessees of meharam rights of
zamindar — Religious Institutions — Alienability of
endowments. By the proviso to s. 12 of the Rent
Recovery Act, tenants have the right to relinquish
their lands at the end of a revenue j-ear. The
defendants, by a registered deed, became permanent
lessees of the melvaram rights of the plaintiff, who
i was a zamindar. On the question whether the
defendants were entitled to relinquish their interest
under the deed, under s. 12 of the Rent Recovery
Act : Held, that the proviso to that section was
not intended to apply to persons in the position of
the defendants. Though the defendants were the
" tenants " of the plaintiff in the sense that they
were bound to pay rent to the plaintiff yet they were
not tenants in the sense in which that term is used in
s. 12. The defendants being lessees of the mel-
varam, were farmers under an inamdar, and be-
longed to the class of landholders specified in s. 3
of the Act. Ss. 3 to 12 imlusive refer to the re-
lations between these landholders and their ten-
ants, and, for the purposes of s. 12, the defendants
were in the position, not of tenants, but of landlords.
Lakshminarai,ana Pantulu v. Venkatarayanam,
I. L. R. 21 Mad. ll'<, and Rainasami v. Bhas-
karasami, I. L. R. 27 Mad. <>: , followed. Sub-
baraya V. Sriniva.sa, I. L. R. 7 Mad. 'iX); Appa-
sami V. Bammasubha, I. L. R. 7 Mad. 262 ; Ram-
Chandra v. Narayanasami, I. L. R. 10 Mad. 229 ;
Ba.^kara^ami v. Siva.sujni, I. L. R. 8 Mid. W6
(so far as they proceed on the supposition that
the word " tenant " as defined in s. I of the Rent

( 7771 )

DIGEST OF CASES.

7772 )

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— contd.

s. 12 — concld.

Demand by land-

15—

MADRAS RENT RECOVERY ACT Cr
OF 1865)— contd. ^

s. 15 — concld.

Recovery Act, is applicable to an intermediate
landholder, who has to pay rent to a superior land-
holder), dissented from. Per the ofEg. C. J. and
Russell, J. (after the decision of the Full Bench)

According to the Indian Common Law relating to I

Hindu religious institutions of the kind before the j
Court, the landed endowments thereof are inalien- |
able. Though proper derivative tenures conform- [
able to custom may be created with reference to
such endowments, they cannot be transferred by
way of permanent lease at a fixed rent, nor can they i
be sold or mortgaged. The revenues thereof may
alone be pledged for the necessities of the institu- i
tions. Prosanna Kumari Dehya v. Golah Chand j
Baboo, L.R. 2 I. A. i/', referred to. Nalla- \

YAPPA PILL.4U V. AmHALAVANA PaNDARA SaNNADHI

^1904) . . . . I. L. R. 27 Mad. 465 j

. s. 13 — Persons entitled to proceed under \

Act— Attachment, validity of. A granted two

villages in perpetuity to B under a deed, reserving
a certain rent to himself which was to be reco-
vered " according to the Act " if it fell into arrear.
The rent remained unpaid for two years, and A
obtained an attachment for the whole arrear
under the Madras Rent Recovery Act. Held, (I)
that A was entitled to proceed as landlord under
the Madras Rent Recovery Act ; (ii) that the
attachment held good for such amount of rent
as was recoverable under that Act. Bamaaami v.
Collector of Madura, I. L. E. 2 Mad. 67, dis-
cussed. Ramachandra v. Narayanasami

I L. R. 10 Mad. 229

1. s. 14 — Suit for rent — Limitation.

When a tenant has executed a muchalka specifying
the dates on which the various instalments of rent
are payable, the period of lim tation for a suit by
the landlord for the rent is to be computed from such
dates. Venkatagiri Rajah v. Ramasami

I. L. R. 21 Mad. 413

holder of an amount in excess of rent actually due by
tenant — No7i-compliance with demand — Attachment
and sale in consequence of non-compliance — Legality.
A landholder made a demand on his tenant for pay-
ment of a sum in excess of what was in fact due
in respect of rent. The demand was not complied
with, and, as a consequence of such non-compliance,
the holding was attached and sold.' Held, that,
inasmuch as the sale had been held by reason of a
demand which was not shown to be correct, it must
be set aside. Pichuvayengar v. Oliver (1902)

I. L. R. 26 Mad. 260

See Small Cause Court, Mofussil —
Jurisdiction — Wrongful Distraint.
I. L. R. 22 Mad. 457

. ss. 15, 17. Where a landlord has

distrained for rent, and the distraint has been set
aside under the provisions of the Rent Recovery

Act, the landlord is debarred by s. 17 from 1:i
further proceedings under the Act in respect t
arrears for which the distraint was made. R. a
Chengalvaraya . . I. L. R. 7 Mad IS
~ —-—7 ss. 15, 17 and 18 ~ Statement 01 k
in which distrained property is kept — " The ma
is with the distrainer''— Sufficiency— Mai ii
ability of suit. In a suit, instituted under s. 18 t
Rent Recovery Act, to set aside a distraint < t
ground that it had been illegally carried out, y.h
iff complained that the authority to Histrai' d
not contain the particulars required by s, IC t
Act. The property, which consisted of sera -n,
jewels, was described as being "with th d
trainer.'" i/eW, that, with regard to prope^
this description, the statement was sufiei
Quare Whether the failure to state the place b
property which has been distrained is kei is
ground for a suit under s. 18 of the Rent ReVe
Act to set aside the distraint. Viearau'
Ayyangar v. Kanagavalli Ammal(1901)

I. L. R. 25 Ma< 5(

1. s. 17 — Attachment andsaUj I

tenant's interest in the land for arrears of ird
Declaration of invalidity of attachment^ Ph
defa^llt has been made in the payment of re; a:
the saleable interest of the defaulting tent
the land is attached, the attachment can;t
declared invalid in a summary suit undes.
of the Rent Recovery Act. Thayamma v. 1 la
DAVELu . . . I. L, R. 12 Ma 4(

and ss. 18, 49— <Su!< to r-

produce illegally distrained for rent — !■
distraint. The defendants, the landlords, •
certain produce, the property of plaint:
lessee, in view to selling it for alleged cla .i >■
rent. The Sub-Collector finding that the iina
ties required by the Act had not been ol rvt
removed the attachment and directed the
tion of the property. The defendant-;
refused to restore the property, the
brought this suit under Madras Act VIII '
recover the value of the produce : — Held.
wrongful withholding of the property, beii
in direct disregard and defiance of the Ati.
constitute a cause of action triable by a -
suit under that Act. Srinivasa v. Empe:
PiLLAI . . . I. L. R. 2 I.

and s.

) — Summar.

wrongful distraint — Limitation — Cav.ie '
A refusal to restore propei-ty improperly i:
under the Rent Recovery Act (Madi -
VIII of 1865) after the attachment has l^n «
aside and the property ordered to be '^■"'
under s. 17 of the Act, is not a cause of act
which a summary suit can be brought un
The cause of action in such a case is the il
traint, and the continued detention of, aii
to restore, the property are only aggravatifi
wrong. Semble : A summary suit undc

( 7773 )

DIGEST OF CASES.

7774 )

] \DRAS KENT RECOVERY ACT (VIII
)P 1865)— contd.

. 8. 17 — condd.

T lid lie under such circumstances for loss or dam-
«, sustained when the distress has been declared
i ijal, and the right to bring a summary suit is not
l|ite<l to the loss sustained prior to the order de-
< -ing the distress illegal as suggested in Sri7uva$a
\Emperumavar Fillai, I. L. E. i' Mad. -I'J. The
I iod of limitation for a suit under s. 17 must be
c iputed, if not from the date of the distress, at any
re from the date the distress was declared illegal.
J'aoiiuthi Panda v. Padala (ioPALUDU
I I. L. R. 3 Mad. 121

A 8.18-

, I See Sale for Arrears of Rent — Setting

ASIDE Sale — Irregularity.

I. L. R. 20 Mad. 498

Sevm days required

b\ the section means seven clear days — Limit-
flln Act {XV of 1877), Art. 91— Does not apply to
rf'nrfanfcft in possession. A defendant in possession
ii'ot precluded from setting up the invalidity of a
a, because his right to have it set aside was
b'-cd at the date of suit by Art. 91 of Sch. II to the
I.iitation Act. The seven days which, in fixing
tl day for sale under s. 18 of the Rent Recovery
A), must be allowed from the time of notice, are
W'n whole days, and not seven periods of 24 hours
emulated from the hour of the day on which the
nice was issued. McQueen v. Jackson. [1903]
2. B. 163, referred to. Ramanasariv. Muthu-
8.j-iii Naik (1906) . I. L. R. 30 Mad. 248

n 88, 18, 24, 49 — Excessive distress —

Hiudy for pernon aggrieved. Though a person
»,' is aggrieved by an excessive distress, may have
ni'urse to a suit for damages under s. 49 of Act
Vjl of 1865, that is not his only remedy. An ex-
Wjive distress, w hich is forbidden by s. 49 of that
Aj, is a ground on which an appeal against a dis-
tijnt may be filed under s. 8, and if the distress
i»|oved to be excessive, the Collector may allow
tUppeal and Fet aside the distraint. Chelican

^ ' 'TA GOPALA RavNIAM GaRF V. NaR AYANA-

:i)Di (1904) I. L. R. 27 Mad. 210

- 88. 18. 36, 40 Insufficient notice
Onus of shoiving that requirements of Act
'» complied u-ith — Irregularity — Civil Pro-
Code (Act XIV of 1.SS2). s. 2S3— Relief
j respect of the same matter" — Joinder of causes
yiciion and parties — Suit against purchasers of
<it\Tent items at invalid sale. Where the validity
oi| sale of land for arrears of rent is in question
«i for the landlord, who seeks to avail himself of
" ' lal procedure by way of distress provided
'■<■ Act, to show that the requirements of the
•• been complied with. Insufficient notice
^ not a mere irregularity curable under ss.
♦0 of the Rent Recovery .\ct. The provi-
-. 36 cannot be imported into s. 40 so as to
^j'' the former applicable to a sale of land dis-
»|ied for arrears of rent. S. 36 introduces an
'"Jption to the general rule that, primd facie

MADRAS RENT RECOVERY ACT (VIII
or 1805)— contd.

8. 18 — condd.

non-compliance with the requirements of the Act
will vitiate a sale : and this exception is expressly
limited to the case of moveable property. The
provision in s. 18 as to the length of notice is that
in fixing the day of sale not less than seven days
must be allowed. If a notice be ptiblished on the
16th announcing that a sale will take place on 22nd
the sale will be bad, even though it may take place
in fact, on 23rd. A suit against a number of pur-
chasers of different items of land distrained and
subsequently sold under the Rent Recovery .Act for
a declaration that the sale was invalid for want
of proper notice is not bad for misjoinder of parties
and of causes of action. Thouah in a sense every
item sold constitutes a separate sale, the "matter"
is the same, the sale being of distrained property,
under the same notification and in respect of the
same arrears. The proceedings in which the various
items are sold are one and the ground on which the
validity of the sale is impugned is the same in cAch
case. The same defect vitiates the whole proceeding a
and is the common ground of attack. The cause of
action, namely, the wrongful sale, is the same as
against all the defendants. When a suit is brough^t
under s. 283 of the Code of Civil Procedure, the
attachment (and not the making of the order) con-
stitutes the cause of action ; and different purchasers
of the attached property may be properly joined as
defendants in the same suit. DoR.iSAMi Pillai v.
MuxnUSAMY MOOPPAN (1904)

I. L. R. 27 Mad. 94

s. 20-

Death of cattle dis-

trained. A landlord distrained cattle, belonging
to his tenant, for arrears of rent. The distraint
was held, in a suit, to be illegal, the judixment being
deUvered on 7th Si^ptcniber, 1898. Out of 17 ani-
mals which were distrained, only 1 1 were restored
to plaintiff, the date of their restoration being
the 28th November, 1898. Of those which were
not restored, four tUod more than thirty days prior
to the institution of the suit, one died within thirty
days of suit, and one died after the suit had been
filed. Upon a summary suit being rtle<l by the
tenant to recover the value of the cattle iUegalJy
distrained : — Held, that the cause of action arose on
the date of the death of the cattle, and that plaint-
iff was only cntitle<l to recover the value of one
animal. HdU also, that he would have been
entitled to recover the loss sustained by being
deprive 1 of tha services of the cattle, had he so
framed his suit. Jaoannadha Rao Paktclu

GARU r. NiDAMARTI U.MMAVVA (l!HI2)

L L R. 26 Mad. 183

8. 27—

Set Appeal — Decrees.

I. L. R. 13 Mad. 248
See Small Cause CorKX, Morrssii,—
.JcRisDicnojJ — Wronofcl Distraint.
4 Mad, 401

( 7775 )

DIGEST OF CASES.

( 7776 )

MADRAS RENT RECOVERY ACT (VIII
OF 1885)— cowW.

3.33—

See Saij: fok arrears of Rent — Setting
ASIDE Sale — Other Grounds.

I. li. R. 8 Mad. 6
I. li. R. 24 Mad. 307

s. 35—

See Stamp Act, 1869, s. 3 . 8 Mad. 112

and s. 76 — Sale of tenant's interest —

Befusal of Collector to give certificate. A sale of
the tenant's interest in certain land having
taken place under ss. 39 and 40 of the Rent Re-
covery Act, the Deputy Collector refused to issue
sale certificate to the purchaser, on the ground that
the sale had been irregularly conducted : — Held,
that, under s. 35 of the Rent Recovery Act, the
purchaser was entitled to a sale certificate. Velli
Periya Mira v. Moidin Padsha

I. L. R.'9 Mad. 332

s. 38—

See Attachment — Ai.ienation during
Attachment . I. L. R. 8 Mad. 573
See Money had and received.

I. L. R. 25 Mad. 548
See Sale for arrears of Rent — Incum-
brances . I. L, R. 7 Mad, 31
I. L. R. 2 Mad. 234
I. li. R. 10 Mad. 266
See Sale for Arrears of Rent — Rights
and Liabilities of Purchasers.

I, L. R. 6 Mad. 428
Attachment and sale

MADRAS REWT RECOVERY ACT C7L

OF 1865)— contd.

of the tenant's interest in the land for arrears of
rent. Under s. 38 of the Madras Rent Recovery
Act, a landlord cannot attach the saleable interest
of a defaulting tenant in the land, until the expiry
of the current revenue year. Thayamma v.
Kulandavelu . . I. L. R. 12 Mad. 465

ss, 38 and 39—

/See Limitation Act, 1877, Art. 12.

I. L. R. 20 Mad. 3

— Sale on excessive demand

illegal — Institution of civil suit for rent after
talcing summary proceedings no bar to jyroceeding
with the latter — Limitation Act {XV of 1877), Sch.
II, Art. 12 — No bar to defendant in possession plead-
ing invalidity of sale. Where notice of demand by
the landlord under s. 39 of the Rent Recovery Act
claims a larger amount than is legally due from the
tenant, a sale under the Act by the landlord for non -
compliance with such excessive demand is illegal,
and no subsequent alteration of the amount to the
proper figure can validate such sale. Pichuvayengar
V. Oliver, I. L. R. 26 Mad. 261, followed. Where
the landlord institutes a civil suit for the rent after
taking proceedings under the Act, such proceedings,
if pleaded by defendant, will be a vahd defence to
the suit ; but, semble, the mere institution of the
suit wiU not make it illegal to proceed further with

ss. 38 and 39— concld.

the summary proceedings. If the suit is allowed
proceed to judgment, the debt will merge in t
decree and further summary proceedings will
illegal, but a sale before judgment wiU be val
CImncellor v. Webster, 9 T. L. R. 568, referred
A defendant in possession whose right to sue to
aside a sale is barred by Art. 12 of Sch. II of l:
Limitation Act, may set up the invalidity of si ,
sale as a defence. Lakshmi Doss v. Roop La.
I. L. R. 30 Mad. 169, referred to. Venka '
chalapathy Ayyar v. Robert Fischer (19)
I, L. R. 30 Mad. 41

See Merger . I. L. R. 30 Mad. 45
See Sale for Arrerrs of Rent— S--
TiNG aside Sale.

I. Ii. R. 24 Mad. J 7

1. Sale of immoveie

property under — Irregularity in sale, effect of. A
suit lies to set aside a sale of immoveable propi y
irregularly conducted under the provisions of ;t
VIII of 1865. If notice of sale is not served in le
way prescribed by s. 39, the sale must be setase.
Nattu Achalai Ayyangar v. Parthasaiji
Pillai . . . I. L. R. 3 Mad. 4

2. __ Service by at-

ing notice of intention to sale on some conspic-is
part of the tenant's land — Residence of tenanin
foreign territory. The provision of s. 39 of the Jqd
Recovery Act that the notice of an intention t(3li
the land should be served ' ' at his usual pla( of
abode," denotes some place in the neighbourJxi
of the land in respect of which the pottaii as
tendered, and does not apply when the tenane-
sides in foreign territory. Oliver v. Anatb a-
mayyan . . . I. L. R. 18 Mac 30

Practice-

not taken in plaint or a settlement of issues —
to raise it on appeal. Where a plain tiS in
to set aside a sale of land fails to take the obj'
either in his plaint or at settlement of issui--
the notice of sale prescribed by s. 39 of tb.
Recovery Act had not been served upon hir
should not be allowed to raise it on appeal.
bien v. Ramasami Chetty (1902)

I. L. R. 26 Mad?6»

ss. 39 and 40—

See Right of Suit — Landlord
Tenant, suits concerning.

I. L. R. 10 Madges
See Sale for Arrears of Rent- 'Si-
ting aside Sale— Irregularity

I. L. R 20 Madl»»

s. 40—

iSec Limitation Act, 1877, Sch. II.^^-
12 . . . I. L. R. 20 Ml- 3»

( 7777 )

DIGEST OF CASES.

( 7778 )

[ADEAS BENT BECOVERY ACT (VIII

OF 1865)— contd.

8. 40 — concld.

See Sale for arrears of Rent — Set-
ting ASIDE Sale — Irregularity.

I. L. R. 20 Mad. 49i
.See Stamp Act, 1809, s. 3 . 8 Mad. 112

\ Limitation for suits

lUler 8. 40 — Bight of attachment, when rent is payable
kind — Validity of attachment for arrears due under
\(ta altered subsequently. S. 40 of the Madras
Mit Recovery Act must be read with s. 51. The
)rd " month " in the former was intended to be
uivalent to the 30 days in the latter and suits
.'er s. 40 are within time, if presented within 30
|)S. Attachment proceedings under the Act
:j.y be taken when rent is payable in kind. Where
),)atta under which an attachment was made, is
rcred on appeal subsequentl}' the attachment can-
i|; be upheld even to the extent of the rent in
j.ears under the altered patta. Ramchandra v.
4rayanasami, I. L. B. 10 Mad. 229, not followed.
\ma Dava Desikar v. Mxjrugesa Mudali (1905)
I. L. B. 29 Mad. 75

ss. 41,4a-

See Jurisdiction of Civil Court —

Rent and Revenue Suits, Madras

5 Mad. 289

ss. 41, 43, 69—

. . '' Judgment " — Decision

vCollector setting aside an order for ejectment
« er 8. 41, is a " judgnunt " and appealable as
«!'. The term " judgment " as used in
Mjlras Act VIII of 1865 must be held to include
aiidecisions of a Collector determining the rights
ol]'arties. Where a tenant, ordered to be evicted
n^ter s. 41 of the Act, applies to the Collector to
KJ aside the order evicting him, the decision
of I e Collector on such appUcation is a "judgment "
wjther the apjjhcalion of the tenant is considered
at] plaint in a .summary suit to set aside the im-
pii)er eviction or as an appeal under s. 43 or not,
ai^an appeal lies against such judgment under s.
^' f the Rent Recovery Act. Such" right of appeal

in favour of the landholder as well as of the

Madai Thalavoy Kunimarasamy Mudali-

yallakannu Tevan, 6 31ad. H. C. 2S9, not

amoved. DoNTARAJu Subbarayudu v. Kek-

M^DiLiNGAYYA (1907) I. L. B. 30 Mad. 473

— \- s. 44 — Delivery of possession —

M-ol — Limitation. A obtained a warrant eject-
HB for arrears of rent under s. 41 of the Rent
Rfl'very Act. B appealed within fifteen days, but
A IS put into possession on 13th May 1882. B'a
»p,al came on for hearing, and was dismissed on
13 June 1883. B instituted this suit to recover
I«,S8ion of the land on 28th July 1883 :— ZfeW,
«« B'« suit was not time-barred under s. 44 of the
Re Recovery Act. Fadsha v. Tiruvembala
' I. li. B. 9 Mad. 479

VOL. III.

MADBAS BENT BECOVEBY ACT (VIII
OF 1865)— fon</.

s. 49—

See Deputy Collector, jurisdiction of.
I. L. B. 16 Mad. 323
Summary suit for

damages for wrongful distraint — Xo proper pottah
tendered — Jurisdiction of Summary Court. A
tenant sued his landlords summarily under s. 49
of the (Madras) Rent Recovery Act for cancellation
of a distraint and for restoration of the property
distrained or its value. It appeared that there were
three landlords who owned the village and that
the pottah has been tendered by only two of
them for their shares, and was consequently
not a proper one : — Held, that the defendants
were landlords who, had they tendered a proper
pottah, would have been entitled to distrain
under the Act. The fact that the pottah which had
been tendered was not a proper one did not
cause the proceedings taken by them under the
provisions of the Act to be a proceeding not taken
under colour of the Act. Held, also, that the suit
was one for damages. Velagaleti Ramakish-
NAYYA V. Suraneni Papay'ya Appa Row (1904)
I. L. B. 27 Mad. 430

1. s. 50 — Petition sent bi post —

Presentation of plaint. A petition sent by post is
not a substitute for the presentation of a plaint as
required by s. 50 of Madras Act VIII of 1805.

MOPAETI PiTCHI NaIDU V. VuPPALA KOXDAMMA

6 Mad. 136

and s. 69— Plaint-

Amendment — Irregular 'procedure — Joint petition
— Order to file separate plaints — Limitation. A
landlord, having tendered pottahs to his raiyats
which were not accepted by them, distrained, for
rent due under the pottahs tendered, on the 10th of
March 1882. On the 13th of March thirteen raiyats
presented a joint petition to the Head Assistant
Collector complaining of the landlord's acts. This
petition was referred to the Tehsildar for report,
and not treated as a plaint under Act Vlll of 1865
(Madras) ; but subsequently, having been brought
before the Deputy Collector for orders it was treated
as a joint plaint under the said Act, and the peti-
tioners were directed by that officer each to file a
separate plaint. Thirteen plaints were accordingly
filed on the 27th of May :—HcJd. that under s. 50 of
tl e Act, which allows irregular plaints to be amend-
ed at the discretion of the Ci^Ilector, the petition
of the 13th March which contained all the neco-sary
allegations, could be treated as a plaint capable of
amendment ; and that the order of the Deputy
Collector directing the petitioners to file separate
suits was an amendment within the meaning of that
section. Held, also, that by the provisions of s. 69,
which provides that substantial justice shall not be
defeated by want of form or irregularity in proce-
dure, the said order, even if irregular, having don©
substantial justice, ought not to be set aside.

ATTIPAKULA McNAPPA v. DaSINANI CnENCHTT

Nayudu . . . I. Ii. R. 7 Mad. 138

IIP

( 7779 )

DIGEST OF CASES.

( 778<) )

MADBAS RENT RECOVERY ACT (VIII
OF 18d5)—co)itd.

1. s, 51 and s. 18— Summary suit to

Bet aside distraint — ' ' Within thirty days ' ' — Sunday
—General Clauses Act {X of IS97), s. 10 (7)—
General Clauses Act (Madras) (Actfl of 1S91),
s. 11. Suits to set asido a distraint undt-r s. 15 of
the Rent Recovery Act (Madras), 1865, were filed
on the thirty-first day after the distraint complained
cfj'the thirtieth day being a Sunday, and the Court
closed. On objection being taken that the suits
were barred under ss. 18 and 51 of the Act : — Held,
(i) that the suits were filed in time ; (ii) that the
provisions of the Limitation Act do not extend the
period of thirty days limited by ss. 18 and 51 of the
Rent Recovery Act (Madras), 1865, for bringing a
summary suit to set aside a distraint ; neither does
s. 10 of the General Clauses Act nor s. 11 of the
General Clauses Act (Madras), inasmuch as the
latter Acts are not retrospective ; and (iii) that there
is a generally recognized prmciple of law under
which parties who are prevented from doing a thing
in Court on a particular day, not by any act of their
own, but by the Court itself, are entitled to do it at
the first subsequent opportunity. Sambasiva
Cham v. Ramasami Reddi I. L. R. 22 Mad. 179

2. Presentation of

plaint — Acceptance by Court of plaint sent by post.
K sent a plaint by post to a revenue officer, who was
on tour, and, in obedience to an order issued by such
officer to pay batta within a certain date, presented
himself and paid the amount demanded within
thirty days from the date of the cause of action.
Held, that the suit as instituted within the time
prescribed by s. 51 of the Rent Recovery Act.
Moparti Pitchi Naidu v. Vuppala Kondamma, 6
Mad. 13f>, approved and distinguished. Sankara-
narayana v. Ktjnjappa ' . I. L. R, 8 Mad. 411

3. Suit to enforce

acceptance of improper pottah — Limitation. A land-
lord sued his tenants in the Court of?a District
Munsif to enforce acceptance ''of pottahs and the
execution of muchalkas by them, and to recover
arrears of rent. These suits were filed more than
thirty days after tender of the pottahs, which were
found to contain certain improper stipulations.
Held, that the suit was not barred by the rule of limi-
tation in Madras Rent Recovery Act, s. 51.
Easwara Doss v. Pxjngavanchari

I. L. R. 13 Mad. 361

ss. 57, 66— Ex parte decision. Semble :

The terms of s. 57 of Act VIII of 1865 are
wide enough to justify a Collector in treating as
ex parte a defendant not appearing on the day to
which the hearing of the 'suit may have been ad-
journed under s. 66 of the Act. Stjbbramaniya
PiLLAY V. Perximal Chetty . . 4 Mad. 251

s. 69—

See ante, ss. 10 and 69.
See Remand — Cases of Appeal after
Remand I. L. R. 26 Mad. 518

MADRAS RENT RECOVERY ACT (VIII
OF 1865)— coritd.

S, 69— concld.

1. — ^ Appeal, computa

tion of time for — Time required to file copy of deci
sion. An appeal under^JMadras Act VIII of 186c
must be presented within thirty days from the dat<
of the decision appealed against. The appellant i
not required to file a copy of such decision witl
his appeal. In thi matter of th-. petition of Mohidi;
HussEN Saheb . . . . 8 Mad. 4'

2. and s. 18 — Deduction of tim

occupied in obtaining copy of judgment appeak
against — Limitation Act {1S77), s. 12. A tenai
whose property had been distrained for arrea;
of rent sued under Rent Recovery Act, s. 1>
by way of appeal against the distraint. The Re^
nue Court decided in his favour. The landlo)
preferred an appeal under s. 69 more than thirl
days after the date %vhen the decision was pr
nounced. He claimed that the time occupied
procuring a copy of the judgment appealed again
should be deducted in the computation of the thir
days' period of limitation. i^eM, that the app
lant was not entitled to have the deduction mac
the provisions of s. 12 not being applicable to
appeal filed under s. 69 of the Madras Rent Re(
very Act, and that the appeal was barred by lii ■
tation. Akkappa Nayanim v. Sithala Naidu

I. L. R. 20Mad4i

3. Delay in prese

ing appeal — Potver of Court to e-rcuse — Limitatii-
Under s. 69 of the Rent Recovery Act, a Court U
no'power to excuse delay in presenting an app'i
from a judgment from the Court of first instancei
a suit by a tenant to set aside a distraint, made b,*
landholder under the provisions of the Kent I-
covery Act (Madras). Bhttjanga Rao v. '
KANNA (1901) . . I. L. R. 24 Mad

1. _ s. 72 — Refusal to execute muc

ka—Suit^ for rent. By s. 72 of the Rent RecoTy
Act, when a judgment is given for the delivery < a
muchalka, if the person required by the deer.
execute such muchalka shall refuse to do S'
judgment shall bejevidence of the amount oi
claimable from such person, or a copy of thf
ment under the hand and seal of the CoUectc
be of the same force and efiect as a mui
executed by the said person. A landholder, )i
tendered a pottah and obtained confirmation n;
summary suit, sued for rent. The tenant ii
written statement denied that the pottah v,
proper one, and contended that he was not b
to accept it. Held, that this amounted to a r^
to execute the muchalka, for the delivery of ^
judgment had been'given, withm the meanini
72, and that the requirements of that sectiOJ'ii
been co mnlied with. Venkataramayya v. tb-
I. L. R. 23 Mad '00
Dedsion of Bo*'"*

been complied

BANNA

Court on j /•/'(>-■ of pottah — Confirmation on ap

lUto

District Court— Subsequent suit'for rent—Rtsjv!-^^
The decision of a Revenue Court in a suit bugn*
to settle the terms of the pottah for a certain i-«">

( 7781 )

DIGEST OF CASES.

( 7782 )

lADRAS BENT RECOVERY ACT (VIII
OF 1865)— co»<f/.

s. 72—co7htd.

lat decision being confirmed on appeal by a Dis-
ict Court, is final and binding in all Courts in re-
poct of rent recoverable for that fasli. Villiam-
alachie v. Sree Gulam Gowne Sahib (Appeal No.
8 of 1900, unreported), followed. Vedachala
Ibamani v. Boomiappa Mudaliar (1904)
1 I. L. B. 27 Mad. 65

' 8.76—

See Superintendence of High Court —
CrvTL Procedure Code, s. 622.

I. L. R. 16 Mad. 451
I. L. R. 17 Mad. 298
s. 78—
See Limitation Act, 1877, s. 14.

I. L. R. 12 Mad. 467
See Right op Suit — Landlord and
Tenant, suits concerning.

I. L. R. 10 Mad. 368

See Small Cause Court, mofussil —

Jurisdiction — Wrongful Distraint.

I. L. R. 25 Mad. 540

. . - Limitation — Suit

ti recover property wrongfully distrained. The
pntiS sued to recover certain property wrong -
i\y distrained by the defendant, who was his
lallord, or in the alternative for its value. The
d> ndant had tendered no pottah to the plaintili,
b'the distraint had taken place professedly under
tl Rent Recovery Act. The suit was not brought
w lin six months from the date of the wrongful
di raint. Held, that the suit was not barred under
r t Recovery Act, s. 78. Goundan v. Rangaya
•AN . . . I. L. R. 20 Mad. 449

Six months from

dii of cause of action — Illegal attachment by land-

AoJT of tenant's property — Retention for more than

«".' months — Continuing wrong — Limitation. By

B. >; of the Rent Recovery Act (Madras), 1865, a

BUiinay be brought to recover damages in respect

of|iything professedly done under the authority

of liat Act, provided that it bo instituted within

BUjQonths from the time at which the cause of

cn arose. A landholder illegally attached

"f his tenant, and detained them for longer

'K months. The tenant then sued to recover

■Is, and damages for the illegal detention.

iiat the claim was not barred, the detention

a continuing wrong. Yamuna Bai Rani

V. V. Solayya Kavundan (1901)

I. L. R. 24 Mad. 339
8.80—
See ante, ss. 3 and 80.
8. 85—

S. So empoivers
'i-^ to sue under the Act and also makes them
'■o be sued witliout leave of Court. A receiver
'-t|xl by Court is a public officer holding lands
•liment within the meaning of s. 85 of Madras
1 of 1865. The section imposes on him the

MADRAS RENT RECOVERY ACT (VIII
OF 1805)— concld.

- s. 85 — conoid.

duty of 'granting pattas to tenants and the liability
to bo sued under the Act for failure to do so. No
leave of Court is necessary to enforce the statutory
right of suing such receiver conferred by the sec-
tion. Receiver nv Ammayyanaikanur Zamin v.
SuppanC^etty (1907) . I. L. R. 30 Mad. 505

MADRAS REVENUE RECOVERY ACT
(HOP 1864).

See Madras Abkari Act, 1864, s. 10.
I. L. R. 7 Mad. 434

See Sale for Arrears op Revenue.
suit based on action of village

of&cer-

See Secretary of State.

I. L. R. 26 Mad. 263

ss. 1, 2, 3, 38, 2,9 -Landholder-

Defaulter — Pottah allowed to stand in name of an-
other— Estoppel — Notice — Sale. Where a land-
holder allows the registry of land to stand in the
name of another and the revenue falls into arrears, a
sale of the land under the provisions of the Revenue
Recovery Act (Madras Act II of 1804), effected after
the service of notice upon the person in whose name
the pottah stands, will pass the landholder's in-
terest to the purchaser at the revenue sale. Zamo-
RiN op Calicut v. Sitarama

I. L. R. 7 Mad. 405

2. ss, 1, 2, 3,26 and ^2— Land

Revenue — Tax levied on trespasser — " Prohibitory
assessment" — Legality. Plaintiff had built a pial
and shed to his house upon land which was part of a
p iblic road. Government thereupon imposed what
is known as a " prohibitory assessment ' ' and col-
lected it from plaintiff requiring him to remove his
pial and shed and giving him notice that m future
an enhanced rate would be charged. In n suit by
plaintiff i)iter alia to recover the amount of the tax,
which he had paid ; — Held, that the impost was not
land revenue and the demand therefore, as if it
were such revenue, was unauthorised and plaintiff
was entitled to recover. Plaintiff possessed no in-
terest in the land such as would constitute him a
' ' landholder ' ' within the meaning of the Revenue
Recovery Act. He was improperly in possession
of part of the surface of a public road, over which
his right was merely one of passage ; and the erec-
tion by him of the buildings was a wrongful act
and a trespass. Government had no right to impose
any assessment on him for such occupation. P<r
Sir Subraumania Ayyar (Offg. Chief Justice) —
Thi' provisions of the Revenue Recovery Act and of
Madras Regulation XXVI of 1802 show that land,
in respect of which land revenue is exigible
is vested in some person or pei-sons other than the
Crown ; and that the Crown possesses nothing more
than a charge (though a first charge) in respect
of the revenue due to it, upon the interest of such
person or persons, realizable by sale thereof. , They

11 p 2

( 7783 )

DIGEST OF CASES.

7784 )

MADRAS REVEITOE BECOVERY ACT
(II OF 1864)— conid.

. s. 1 — concld.

preclude the supposition that any Crown de-
mand is recoverable as land revenue, unless it be
something due from one, who is a landholder, as de-
fined by the Act. Per Bhashyam Ayyanoar, J. —
Civil Courts have jurisdiction to decide whether
or not the land or person is at all under liability to
be assessed for land revenue. If such liability does
exist, the rate or amount of assessment fixed by
Government cannot be questioned or revised by a
Civil Court. In the case of all lands, any demand,
which may be made on behalf of the Crown on the
occupant with the avowed object of compelling him
to surrender or vacate the land, is not the imposi-
tion of land revenue, and the machinery provided
by the Revenue Recovery Act for the realization of
arrears of revenue cannot be resorted to for en-
forcing such a demand. Madathapu Ramaya v.
Saceetaky of State foe India (1904)

I. L. R. 27 Mad. 386

See CoKTEiBTJTiON, SUIT FOE— Payment
ON Joint-Debt by one Debtoe.

I. I.. R. 26 Mad. 686

See Land-eevenue.

I. L. R. 26 Mad. 730

I. Remedies of assignee

from Government of land revemie — Land security for
revenue. The land revenue payable on certain land
having been assigned to a temple by Government,
although they continued to issue a pottah for the
land, the panchayat of the temple are entitled to sue
for the arrears of revenue due, and under s. 2 of
Madras Act II of 1864 the land itself is security for
the revenue due on it, and they can therefore bring
the land to sale to discharge arrears accrued due.
Keishnasami v. Venkataeama

I. L. R. 13 Mad. 319

2. ■ and ss. 25, 37 — Sale for arrears

of revenue — Liability of all fields included in pottah.
By accepting a raiyatwari pottah, the landholder
pledges each and every field included therein as
security for the whole assessment. Several fields
separately assessed to revenue ^^'ere held under one
pottah by K. Default having been made by K in
payment of revenue, one of such fields, of which N
was the owner, was attached under the Revenue
Recovery Act. N claimed to have it released from
attachment on payment of the assessment due upon
it. The claim was rejected and the field sold.
Held, in a suit by N to set aside the sale, that the
Bale was valid. Seceetaey of State foe India v.
Naeayanan. Sitaeama v. Naeayanan

I. L. R. 8 Mad. 130

ss. 5,

and 44 —

Sale of property of a

defaulter for arrears of revenue — Mad. Reg.
XXVI of 1802, s. 3— Register of transfer— Act I of
l^f'O, s. '■■ (.3) { ')— " Entire estate " of defaulter-
Lands held under different pattas — Sale of land com-

M ADR AS REVENUE RECOVERY ACT

{II OF 1864:)—contd.
s. 5 — concld.

prised in one patta — No arrears of revenue due-
Subsequent sale of same land for arrears of revenm
due on other land held under different patta — Validity
First defendant held lands, under two separatt
pattas, in two different villages. The land situatec
in one of the villages was, in 1897, sold at a Cour
sale in execution of a decree, and was purchased b}
plamtiff. At the date of this sale no arrears o
revenue was due in respect of any of first defend
ant's lands situate in either village. At a dat
subsequent to plaintiff 's purchase at the Court sal<
the same land was again sold to second defendar
for arrears of revenue. These arrears were not dii
in respect of the land which was sold, but h
accrued due on the other land belonging to firt
defendant, which was situated in the other villag
and comprised in the other patta. Plaintiff had m
applied to the Collector of the district for a transf(
of the patta of the lands which he had purchased f
the Court sale. Plaintiff now sued for a declarati(
that the sale to second defendant for arrears
revenue was invalid. Held, that plaintiff was e
titled to the declaration. Per Mooke, ./.— Ina
much as plaintiff had failed to obtain a transfer
patta into his own name after his purchase, t
transfer by Court sale from first defendant to plaii
iff w^ould not, under s. 3 of Mad. Reg. XXVI '
1802, have relieved first defendant or the land fr(
liability for land-revenue due by first defendant
respect of those particular lands. But these laii
were not liable for revenue due by first defendant i
respect of land situated in the other village. H;-
ing regard to s. 6 (3) (4) of Act I of 1890, the " mo-
able and immoveable property of a defaulter," -
ferred to in s. 5 of Madras Act II of 1864, musta
taken to mean the interest of the defaulter in »
land. Inasmuch as the interest of the first |-
fendant in the lands in question had already hi
sold to plaintiff, practically nothmg remained »
be sold to the second defendant at the subsequ t
revenue sale. Per Davies, ,/. — The land wm
plaintiff had bought at the Court sale was not liije
to be sold under the Revenue Recovery Act, bof-' "
at the time of sale^ there were no arrears of re'
due upon it, and it then ceased to form part •
defaulter's property. The land which, under
4, r> and 25 of the Revenue Recovery Act, is i
to be sold for a rrears of revenue, must either 1 '•
land upon which the revenue is due, or land ^hi ■
the property of the defaulter. The land in ca-
tion was of neither description. The term ' e^o
estates, ' ' as used in s. 3 of Mad. Reg. XXVI of if-^
when used with reference to a single Person, mui^
read as meaning the " entire estate " and, l>P
s. 3 of the Regulation can apply, the ' esta| ^^
must be such as had ' ' revenue due to Governnifr
upon it. A patta represents an entire estate,-
land held under another patta forms another es!W.
Narayana Raja v. Ramachandea I^^ja ' J
I. L,. R. 26 Madai

, s. \l~Attachment of 9"^^'^'^,.'^

belonging to a tenant— Right of Government to di.

( 7785 )

DIGEST OF CASES.

( 7786 )

MADRAS REVENUE RECOVERY ACT

(II OF 1864)— to/(/(/.

MADRAS REVENUE RECOVERY ACT
(II OF 1864,)— cantd.

8. 11 — condd.

for arrears of revenue. Government can attach for

arrears of revenue under s. 11 of Madras Act II of

1864 the gathered products belonging to a tenant,

provided that the products are of the land on

account of which the arrears of revenue have

iccrued. Krishna Chadaga v. Govinda Adiga

I. L. R. 17 Mad. 404

8.32-

See Contribution, suit for — Payment

OF Joint Debt by onk Debtor.

I. L. R. 26 Mad. 686

Purchaser of land

s. 35-

\Revenue sale — Liability to pay tenant for improvement
'^lefore obtaining possession!. Where a kanom was
i;ranted for 1^5, the jenmi agreeing to pay the tenant
,.he value of his improvements, and it was not
■illeged that the rent reserved was lower than the
isual rent for such land, and the object o.f the lease
vas to bring waste land into cultivation : — Held,
jhat, having regard to the small amount of the
?anom, the transaction must be regarded as in
jUbstanco a lease ; and the engagement made by
|he jenmi to pay the tenant the value of his im-
iTovements was binding on the Collector under s. 32
jf (Madras) Act II of 1864. A purchaser of the land
jt a Revenue sale was therefore bound to pay com-
■ensation to the tenant for improvements before he
ould obtain possession. Meppatt Kunhamad v.
!hathu Nair (1904) . I. L. R. 27 Mad. 373

Mortgagor, or incum-

'ancer — Unregistered owner not hound to pay
ie revenue— Contract Act (IX of 1S72), s. 69 —
loney voluntarily paid cannot be recovered back
nkss the party for whom such payment is made is
yund to pay it — Applies only tvhere party paying
• tenant. An action to recover money paid is not
laintamable under s. 69 of the Indian Contract Act
nless the person from whom it is sought to be re-
)vered was bound to pay it. On this point the
w under s. 69 of the Indian Contract Act is the
.me as the English Law. Bonner v. Tottenham
id Edmonton Permanent Investfnent Building
^ciety, 1 1S99\ 1 Q. B. 161, referred to. The revenue
le on land owned by one who is not the registered
)lder is not money which such owner is bound to
y under the Revenue Recovery Act, though it
ay be to his interest to do so and the registered
Wer voluntarily paying such revenue cannot
cover it under s. 69 of the Contract Act. Neither
n he recover it under s. 35 of the Revenue Re-
very Act unless he is a tenant, mortgagor or in-
mbrancer of such land. Boja Sell.\ppa Reddy
Vbidhachala Reddy(1906)

I. L. R. 30 Mad. 35
8. 35, cl. (5) and s. 39-Certified pur-
ser at revenue sale can be shown to be only
namtdar. Benami purchases are common in India
a effect is to be given to them according to the

8. 35 — C07icld.

intention of the parties, except so far as a positive
enactment directs a contrary course. Where land
has been sold for arrears of revenue under the Re-
venue Recovery Act and the name of the purchaser
has been published under s. 39 of the Act, such pro-
clamation does not preclude any one subsequently
from contending that such purchaser was only a
benamidar and the real purchaser was some one else.
Muthuvaiyan v. Siiina Samavaiyan, I. L. R. 2-^ Mad.
■'>:'6, followed. Narayana Chettiar v. Chokkappa
Mwhiliur, I. L. R. 2') Mad. 655, overrul^
Narayanasami Padayachi v. Govindasami
Padayachi (1906) . I. L. R. 29 Mad. 473
8. 36 — Extension of time by Gov-
ernment for payment of balance of purchase-money.
S. 36 of Madras Act II of 1864 does not make it
compulsory for Government to forfeit the money
deposited by a bidder at a sale of land for arrears
of revenue when the balance of the purchase-money
is not paid within thirty days and to re -sell the
land. Sonaya Pill^m v. Kalamegam

I. L. R. 5 Mad. 130

s. 38-

See Benami Transaction — General
Cases . I. L. R. 18 Mad. 469

1. Sale for arrears of

revenue — Confirmation of sale after cancellation.
When a Collector has passed an order under s. 38 of
Madras Act II of 1864, settmg aside a sale for ar-
rears of revenue, he cannot subsequently- confirm
the sale. Kaliappa Gounden v. Xenkatachalla
Thevan . . . I. L. R. 20 Mad. 253

2. Sale for arrears
of revenue — Suit by purchaser for possession — Plea
that it was a benami purchase. The purchaser at a
sale held for arrears of revenue sued for possession
of the land. It was pleaded that his purchase was
made benami for the persons from whom the
defendant derived title. Held, that the Madras
Revenue Recovery Act, s. 38, did not debar the
defendant from raising this plea, and that, the
averments on which it was based having been
proved, the suit should be dismissed. Subba-

RAYAK V. ASIRVATHA UpADESAYYAR

I. L. R. 20 Mad. 484

and s. 39— Suit to set aside a,

fraudulent sale — Limitation. Noncompliance by
the Collector with the directions of ss. 38 and 39 of
the Revenue Recovery Act (Madras Act II of 1864)
does not invalidate the title of the puirhaser of
land sold for arrears of revenuf. Karippa v.
Vasudeva Sastri . . I. L. R, 6 Mad. 148

4. and S. 59— Sale for arrears of

revenue — Purchase by Government — Subsequent
sale by Government — Suit by owner of a share
in the mitlah for cancellation of second sale — Limi-
tation. The plaintiff was the owner of a share
in a mittah which was sold on the loth Feb-
ruary 1886 for arrears of revenue and bought by
Government, who, on the 16th June 1886, sold it to

( 7787 )

DIGEST OF CASES.

( 7788 )

MADEAS REVENUE RECOVERY ACT

(II OF 1864)— cowfc/.

s. 38 — concld.

the first defendant, notifying the re-sale in the form
prescribed under Madras Act II of 1864. The
first defendant subsequently resold portions of the
mittah to defendants 3 and 5 to 8. The plaintiff
sued for cancellation of the second sale so far as bis
share was concerned, instituting a suit for this pur-
pose on the 31st March 1890. Held, (i) that the
sale of the 16th June 1886 was not a sale under s.
38 of Act II of 1864, although the notification of the
sale was in the form prescribed by that Act, but a
sale by Government of property that had become
its o-RTi by reason of the purchase at the prior SRle
of 15th February ; (i ) that even assuming the sale
of the 16th .Tune 1886 to have been a sale under
s. 38 of Act II of 1864, the suit was time-barred
under s. 59 of that Act, since it should have been
brought within six months from the date of the
plaintiff's majority, ■yiz., the 29th November 1888.
Held, that the limitation prescribed by s. 59 of
Madras Act II of 1864 is applicable to sales which
are illegal by reason of contravening some express
law, as well as to sales which are irregular.
Gohin Lai Roy v. Ramjanam Mis.ser, I. L. R. 21
Cole. 70, referred to. Goundan v. Goundan

I. L. R. 17 Mad. 134

ss. 38 and 39—

. Sale of land for arrears

of revenue — Proclamation of purchaser's name —
Subsequent contention that purchase was henami —
Validity. Where land has been sold for arrears of
revenue, under the Revenue Recovery Act of 1864,
and the name of the purchaser has been published
in pursuance of s. 3') of that Act, the effect of such
proclamation is to vest the property absolutely in
the purchaser as there named, and it will not be
open to anyone to ccmtend subsequently that the
purchaser was a henamidar and that the real pur-
chaser was someone else. Tirumalayappa Pillai v.
Swami Naickar, I. L. R. IS Mad. 469, and
Suhbarayar v. Asirvaiha Vpadesayyar, I. L. R. 20
31ad. 494, explained. Narayana Chettiar v.

ChOKKAPPA MtrDALIAR(1901)

I. L. R. 25 Mad. 655

ss. 41 and 42 — Sale for arrears of

revenue— Land subject to kanam— Purchaser's title
not subject to }-anam-holder''s rights. Where land
subject to a kanam was sold for arrears of revenue
due by the pottadar and owner, and the kanam-
holder claimed to retain possession as against the
purchaser on the ground that his rights were not
alTected by the sale : — Held, that, reading ss. 41 and
42 of Madras Act II of 1864 together, the pur-
chaser's title was not subject to the kanam. The
contracts referred to in s. 41 of the Act are those
which do not create a charge on the proprietary
right in the land sold. Kelaji v. Manikam
I. L. R. 11 Mad. 330

s. 42—

See Contribution, suit for — Payment
ON Joint Debt by one Debtor.

I. L. R. 26 Mad. 686

MADRAS REVENUE RECOVERY ACI

(II or 186^)— confd.

s. 42— concld.

See Land-revenue.

I. L. R. 26 Mad. 73(

Land Improvemen

Loans Act (XIX of 1883), s. 7, cl. 1 (a)—Revem
Recovery Act — Advance to owner of two pieces of hn^
— Security taken on one alone — Sale of the other piec
in respect of advance — Validity. Held two pieces c
land on patta, and obtained a loan from the Go\
emment, under Act XIX of 1883, for the improv
ment of one of them, namely. No. 315. The othc
piece,'*'namely. No. 105-B, was not made coUaten
security for the loan. Default having been made '
repayment of the loan, piece No. 315 was, in 189-
attached and put up for sale, and (as there were r
bidders) brought in by the Government. In 189/
N sold the other piece of land, No. 105-B, to plain
iff, but the patta was not transferred. In 180
No. 105-B was attached by the Government '
respect of N's unpaid loan. Plaintiff objected 1
its sale, claiming title to it as purchaser, and, j
1897, both N and plamtiff applied for a transfer 'i
the patta to plaintiff. The transfer was no mai
as the loan to N had not been repaid. The lai
was ultimately sold by the Government to "fir
defendant, whereupon plaintiff brought this suitl
a cancellation of that sale. Held, that plaintiff w
entitled to the relief claimed. Chinnasami MuDi
v. TiRUMALAi Pillai (1901) I. L. R. 25 Mad. 5'

s. 44—

See ante, ss. 5, 25 and 44.

s. 45—

See Limitation — Statutes of Liju'
tion — Madras Act I of 1876. s. 7.
I. L. R. 26 Mad. 3f

a. 52 — Karnam in a perrnanmi'

settled zamindari — Revenue servant. The karn*
in a permanently -settled zamindari is a villie
servant employed in revenue duties within
meaning of the Madras Revenue Recovery
s. 52. Collector of North Arcot v. Nagi B i
I. L. R. 15 Mad 3

and s. 59— Madras Heredity

Village Offices Act {Madras Act III of 1896), s."
— Emoluments due to village officers — Demanl
payment imder s. 52 of Revenue Recovery A
Payment under protest — Suit to recover an"
paid — Legality of demand — Limitation. By
custom of a zamindari its tenants brought t
produce to the threshing-floor, where it
div ded, inter alia, among the village servants,
lessees of the zamindari altered this system, di'
ing the tenants, to bring their produce direct to jia
granaries of the lessees, who promised to payji*
village servants their fees from the said grana*s.
These fees having been only partly paid, the^"'
lage-servants complained to the Government re-
nue officials, who applied to the lessees for paynQS
of the arrears, a demand for the same being '^-

7789

DIGEST OF CASES.

( 7790 )

:ADKAS EEVENTTE RECOVERY ACT
(II OF 186^)— contd.

I 8. 52 — concld.

. ■ ■ — ■ — Suit to set aside a

H for arrears of renenue — Fraud — Liviitaticn Act,
Hr, Art. 9-5. Suit, in July 1885, to set aside a
uj of land of the plaintiif, sold in July 1884 as
if T arrears of revenue under Act U of 1864
(Jdras), on the ground that the sale had been
blight about by fraud and collusion between
tl purchaser and the ^nllagc officers ; the plaint-
iflad knowledge of the alleged fraud more than
ai I months before suit. Held, that the Law of
Li'itation applicable to the case was s. 59 of Act
Hi; 1864, and not Art. 95 of the Limitation Act,
ai that the suit was therefore barred- Venka-
tafhi V. Suhramaya, I. L. R. 9 Mad. 4-57,
eiiained. Baij Nath Sahu v. Lala Sital
f-\<id, 2 B. L. R. F. B. 1, and Lain Mobarak
iy. Secretary of SUite for India, I. L. R. 11 Calc.
2fl considered. Venkata v. C'HEXOADr

I. L. R. 12 Mad. 168

tic\refe

Abkar

notifica-

tK\ref erring to that Act — Sale to recover sum due
'in abkari renter — Limitation far splits to re-
nd so sold. The right of selling toddy at
places was put up to auction by the Collec-
.;.der a notification which required that pay-
mi|,.8hould be made at fixed periods, and that the
pwiaser should take out licenses as therein pro-
vkl, failing which the shops concerned might be
re- d, and any loss accruing to Government re-
*^ed under the Madras Revenue Recovery Act.
Thplaintiff bid at the auction, and his I id was
awjit^i. He sought to withdraw from the con-
Jrti, but the sale to him was confirmed, and on his
«« e to make the payments above referred to,
^lights purchased by him were re-.sold at a lower
Fij, and his house was attached and sold as under
w^|dadias Revenue Recovery Act to realize the

MADRAS REVENUE RECOVERY ACT
(II OF 1864) cont'l.

s. 59 — contd.

ately issued urder s. 52 of the Revenue Recovery
'?t (Madras), 1864. The lessees thereupon paid
je amount of the arrears ui.der protest, ar.d a year
Iter filed a suit against the Secretary of State to
i^over the money so pa d. Beld, that the lessees i
d made themselves liable for the fees, and the |
illector was entitled to proceed under s. 52 of the j
j'venue Recovery Act (Madias), 1864, to recover |
i;m. Beld, al.so, that, inasmuch as the suit had i
I't been brought within six months of the time [
'!?n the alleged cau.^e of action had arisen, it was
l!;cd under s. 59 of the Revenue Recovery Act
(ladras), 1864. Okr v. Secketakv ok State for |
I)u . . . I. L. R. 23 Mad. 571 \

,. S. 50 — Limitation — Sale of land |

s.ject to mortgage — Suit by mortgager. Land i
Tjch was subject to a mortgage having been j
»|l for arrears of revenue under Act II of 1864 i
( idras), the mortgagee's assignee sued to enforce |
t terms of the bond by sale of the land more than j
8,] months after the date of the sale of the land.
td, that the suit was barred bv s. 50 oi the sad i
A. Yellaya v. Viraya I. li. R. 10 Mad. 62

loss occasioned to Government by the re-sale. In a
suit, in 1888, to recover the house from the defend-
ant who had purchased it ard been placed m pos-
session in June 1886 : — IJeld, that the suit was not
barred by s. 59 of the Act as having been brought
more than six months after the date of the sale, but
that it was governed by the general law of
limitation urder which the plaintifi had twelve
years to sue ; and that the sale was vllrn vires.
Raman v. Chandak . I. L. R. 15 Mad. 219

Sale far arrears of

revenue — Irregularity in sale — Want of due noti-
fication— Alleged fraud affecting sale — Limitation
Act {XV of ISi}), s. a — Minor. When there are
arrears of revenue so as to give jurialict;on to the
Collector to sell under Madras Act II of 1864, the
sale, however, irregular, is a proceeeling under that
Act for purposes of limitation, and is vahd r.ot only
as between the Collector and the defaulter, but as
betwx^en the Collector and the purchaser at the sale.
Venkata v. Chengadu, 1. L. R. 12 Mad. 1'jS, and
Nilakandan v. Thandamma, I. L. R. 9 Mad, 4t0,
followed. The mere fact that one of the plaint-
iffs, in a suit brought to set aside a sale under
Madras Act II of 1864, was a minor, was held not
sufficient to save the limitation bar ureter s. 59 of
Madras Act li of 1864, when an alleged frauel
afi:ecting the sale came to the knowledge of the
other plaintiffs who were majors and were jointly
interested with the minor more than six months
pnor to the institution of the suit, s. 8 of the
Linntation Act being inapplicable to such cases.
Narayanan Nambuuri v. Damodakax Nambudri
I. L. R. 17 Mad. 180

Person aggrieved

by sale — Date of cause of action — Confirmation of sale
and not sale proceedings. Until a sale, held under
the provisions of the Revenue Recovery Act, is
confirmed, the rights of persons whoso interests
may be affected by the sale cannot be injured so
as to give them a right of action as aggrieved
persons, Within the meaning of s. 59 of tiie Act.
Such a cause of action arises only when the sale
has been confirmed. Venkata v. Chengadu, I. L. R.
12 Mad. 16a, eUstinguishid. Sabaiathv t'uKrrv
V. Renoappa Naickan (1!I02i

L L. R. 26 Mad. 495

Suit by person

aggrieved by proceeding under the Act — Limitation —
Wrongfid sale by Revaiue Officer of pro}>erty — Ap-
plication of section. S. 59 of the Revenue Recovery
Act, which provides that nothing in that Act shall
prevent parties deeming themselves aggrieved by
any proceedings under the Act from applying to
the Civil Court for redress, applies to a suit to cancel
a revenue sale on the ground that Revenue officer
wrongfully sold the property in collusion with the
purchaser. Such a suit must therefore be brought
within the period of limitation specially by that

( 7791 )

DIGEST OF CASES.

( 7792

MADRAS REVENUE RECOVERY ACT
(II OF l864:)—concld.

s. 59 — concld.

section. Raman Naidtj v. Bhassoori Sanya^si
(1903) . . . I. L. R. 26 Mad, 638

7, Regulation VII

of 182S — Cause of action to set aside sale under s. 59
arises when sale is confirmed and not froyn date of
Collector's order on revision. The period of six
months allowed for suits to set aside sales under s.
59 of the Madras Act II of 186-4 must be calculated
from the date when the sale is confu-med and not
from the date when the Collector on revision under
Regulation VII of 1828 passes his final order. The
par'ty is aggrieved when the sale is confirmed and
the fact that it was open to him to move the Col-
lector does not postpone his cause of action. Saha-
pathy Chdty v. Rengappa Naicken, I. L. R. 26
Mad. 495, distinguished. Chinnammal Achi v.
Saminatha Malavaroyak (1907)

I. L. R. 30 Mad. 367

MADRAS REVENUE RECOVERY
AMENDMEN'T ACT (III OF 1884).

_ s. 1, cl. 5-

See Bena:mi
Cases

Transaction — General
I. L. R. 18 Mad. 469

MADRAS SALT ACT (IV OF 1889).

ss. 16, 25, 87— Limitation —

Suit to recover salt pans, ivhen license improperly
cancelled. Under ss. 16 and 25 of the Madras Salt
Act, the Government is empowered on cancel-
ling a license to take possession of the proprietary
rights of others in the salt pans, \\liere Govern-
ment have so taken possession of salt pans, a suit to
recover the same brought against the Government
and its assignees will be a suit in respect of acts done
under the Act and ^vill fall within s. 87 of the Act,
even when the license has been improperly cancelled
and will be barred, if not brought within the period
prescribed by that section. Kxtrnam Butchayya
V. The Secretary of State for India (1905)

I. Ij. R. 28 Mad. 551

MADRAS SALT ACT (FV OP 18!)

— concld.

as. 46 and 47—

ss. 16 (a), 18 and 27— .Vo

Compensation under s. 18, when license cancelled
under s. 27 — Civil Procedure Code ('Act XIV of
18^2), s. 244. Where a license has been cancelled
under s. 27 of the Madras Salt Act (IV of 1889),
the licensee is not entitled to compensation under
s. 18 of the Act, but only to the value of the pro-
prietary right under s. 16 (a) of the Act. Where
such licensee has obtained a decree for possession
of salt pans in default of payment of proper com-
pensation, it is competent to the Court in execution
proceedings to determine the amount so payable ;
and no separate suit need be brought to determine
such amount. Secretary of State for India v.
Subraya Mudaliar (1905)

I. L. R. 29 Mad. 181

See Escape from Custody.

I.L.R.19Mad.!)

ss. 84, 87 — Immunity from acn

— Period of limitation provided in the seen
does not apply ivhen the suit is based on contii.
S. 87 of the Madras Salt Act does not a]y
to a case where the act complained of was neii:r
done nor purported to be done under any sec- a
of the Act. The plaintifE brought the Siiit foir-
covery of an amount ordered to be deducted byie
Commissioner of Salt in virtue of the provisionf a
contract entered into between the parties in res t
of certain transport of salt. Held, that neither 1 14
nor s. 87 of the Madras Salt Act applied to the c;.
Muthya Chettiar v. Secretary of State ir
India (1908) . . • I. L. R. 31 Mad. 2

MADRAS TOWN LAND REVENE
ACT (XII OF 1851) AND MADI.S
ACT VI OF 1867.

XII of 1851, ss. 1, n— Madid

VI of 1867, ss. 4, 31— Penal assessment of ve-
nue—Jurisdiction of Civil Court — Limitation, he
plaintifi was in occupation of certain land in Mraa
and in May 1895 he received a notice from theol-
lector stating that the land belonged to the Go t
ment, and that penal assessment of RlOO a '
was imposed upon him for the current moi '
calling upon him to pay that sum within thn
failing which his property would be distrained ;.^
stating, that, if he did not vacate the land at ec,
a further penal assessment would be imposed nd
levied every month. In June 1896 a like i.ice
was served upon the plaintiff calling upon hi to
pay ftl,300, the amount chargeable up t'
The plairrtiff, having appealed to the B
Revenue without success, paid under pro'
penal assessment in various sums amouir
gether to R3,004-l-0. He now sued to
that amount and prayed for a declaratio'
title. Held, by Boddam, J., that the Hi-
had jurisdiction to entertain the suit in r.
the claim for money, but that the suit wa-
as to so much of it as had been paid more i
months before the institution of the suit. .'
Shefhard, Offg. C.J., and Moore. J. (affinn
judgment of Boddam, J.), that the land !■
to Government and the plaintitf was in oi'
without title, and that it was accordingly co i
to Government to impose the assessment. I
to enable one having paid money under pi
recover money so paid, it is necessary f'"
show that the payment was made undi ■
coercion. Muthayya Chetti r^ ^^^^S,'\^ „,
State for India . . I. L. R. 22 Maai^-

MADRAS TOWNS' IMPROVBM^'^
ACT (III OF 1871). J

See Estofpei^Estoppel by CoiJB^ J^

( 7793 )

DIGEST OF CASES.

( 7794 )

ADBAS TOWNS' IMPROVEMENT
ICT (III OF 1811)— contd.

See LiMiTATiox Act. 1877. Art. 120 (1871,
Art. 118) I. L. R. 3 Mad. 124

' s. 1 — Washerman — Artizan. Awasher-

I'.n is not an artizan within the meaning of Madras
1 III of 1871. Ex parte Pooxen
I • I, L. R. 1 Mad. 174

J S. 9 — Power of Governor in Council'

liismiss elected Municipal Commissioner. S. 9
(,the Towns Improvement Act (Madras Act
li of 1871) provides that the Governor in Council
i.y remove an elected Municipal Commissioner
i misconduct. In a suit for damages brought
81. ast the Secretary of State by a Municipal
(inmissioner for wrongful removal from office : —
ji'//, that, the defendant not having proved miscon-
ct, the plaintiff was entitled to damages. Vijaya
Jqava v. Secretary of State for India

I. L. R. 7 Mad. 466

B. 38 — Tax due before approval of Gov-
emerU to Act — Illegal Irv;/ of tax — Omission to give

i,ice. Plaintiff sued the Municipal Commissioners

f i the town of Bcllary for a certain sum,

a'ged to have been illegally levied by them

fin him as his trade and profession tax. The

Bjction of the Governor in Council, under

8i8of Madras Act III of 1871, was obtained

the 4th July 1871, with authority to levy the

t from 1st May 1871. Plaintiff alleged that no

i|ice under s. 61 of the Act had been .served upon

that the levying the tax was illegal, as the

|iroval of Government was obtained three months

the commencement of the official year, and

tjt the Act could not have ret respective effect.

l\d, on a reference, that the levy from the plaintiff

illegal. Bates v. Mcnicipal Commis.sioxers

THE Town of Bellary . 7 Mad. 249

8. 51 — Notice by ou-ner of claim to re-

lAsion of house-tax. The notice which an owner

property must give in order to entitle himself

remission of the house-tax is an annual notice.

IlCSHOTTAMA V. MUNICIPAL CoiNCIL OF

XAKY . . I. L. R. 14 Mad. 467

S. 58 — Liability for carriage and

te-tax — Temporary residence — Payment of tax
r« person resides permanently. The defendant,
ud^e of the Small Cause Court at Madura,
ted Dindigal once a year and remained there
more than tliirty days each year. The
ndant took with him to Dindigal his horses and
■iages which he used there, and in respect of
h he paid the taxes imposed by law to the
nicipality of Madura, where he resided. In a
by the Municipality of Dindigal to recover the
payable in respect of the same hor.ses and car-
;ea:— jyeZd, that the defendant was not liable.
rra V. McQuHAE . 7 Mad. 332

^ and SS. 59-62— Liability to

f'essional tax—Fiscal statutes— Construction of
lutes. In construing enactments creating fiscal
<^ gallons, provisions declaring the liability

MADRAS TOWNS' IMPROVEMENT
ACT (III OF 1811)— contd.

B. 58 — concld.

to the tax are to be distinguished from those
providing for its imposition. Machinery for the
imposition of the tax may be independent of the
obligation of the taxpayer. The duty of paying
profession tax under s. 58, Madras Act III of 1871,
is independent of the obligations of registration and
taking out a certificate which precede it in the same
section. Per Hutchin'S, J.—S. 61 is not to be
construed so as to prevent the Commissioners from
adding to the list new names or persons not in the
town at the beginning of the year. Vk ePhesi-
dent of the Municip.al Commission. CrDnAr.oRE
V. Nelson . . . I. L. R. 3 Mad. 129

SB. 61, 62— Maxim " Quod fi-ri non

debet factum valet." The Vice-President of a
Municipal Commission, purporting to act under
the provisions of s. 61 of the Towns' Improve-
ment Act, 1871, which empowers the Commis-
sioners to prepare and revise the list of tax-
payers, and to issue notices of assessment to persons
liable to the prefession tax, issued a notice of as-
sessment to D, although no case of emergency exist-
ed, within the meaning of s. 27 of the Act, enabling
the President, or, in his absence, the Vice-Presi-
dent, to exercise the powers vested by the Act in
the Commissioners. Held, that the insufficiency
of the notice of as.scssment was no answer to a
charge under s. 62 of the Act against D for exer-
cising his profession without paying tax. Muni-
cipal Commissioners of Mangaloke r. Davies

I. L. R. 7 Mad. 65

1 s. 62 — "Person" — Joint trade —

Tax. In s. 62 of the Madras Towns' Improvement
Act, 1871, the word " person " must be construed
to include any company or a.ssociation or body of
per-ons, whether incorporated or not, where such
con.struction is not repugnant to the context.
Where, therefore, two undivided Hindu brothers
carried on a joint trade in one shop and tax had
been paid by one brother :— Held, that no tax was
payable by the other brother. Municipal Com-
missioners of Negapatam r. Sadaya

I. L. R. 7 Mad, 74
2. . and b. 169 — Profession tax, non-
payment of — Offence, n'lturc of — Prosccutiori — Limi-
tation.. A complaint havinsj been laid (on the 26th
March 1885), under s. 62 of Act III of 1871 (Madras),
against 0 for having exercised his profession for
more than two months in the official year 1884-85
in a Municipality without paying the tax in respect
thereof, the Magistrate dismissed the complaint, on
the ground that the prosecution wa.s barred by
8. 169 of the Act, inasmuch as five months had
elapsed since the last payment in respect of the
tax became due. Held, that the complaint, if laid
within three months from the close of the official
year, or. if (> ceased to exercise his profession
"before the close of the official year, within three
months from such date, was not barred by s. 169
of the Act. OoT.\cAMUND Municipality v.
O'Sh.aughnessy . . I. L. R. 9 Mad, 38

( 7795 J

DIGEST OF CASES.

( 7796 )

MADRAS TOWNS' IMPROVEMENT
ACT (III OF 1871)— coM<(/.

. ss. 64, 72 — Tax on animals — License,

extent and limit of. N having taken out a license
under the provisions of the Towns' Improvement
Act, 1871, for a bullock, the bullock died and N
brought another bullock, but did not take out a
second license. iV was convicted for keeping this
bullock without a license. Held by Turner, C. J.
and HuTCHiNs, J. (Brandt, J., dissenting), that the
conviction was right. Municipal Commissioners
OF Mannargadi v. Nallapa I. L. E. 8 Mad. 327

s. 85 — Suit to recover money illegally

levied as tax on profession. S. 85 of Madras Act III
of 1871 is not a bar to a suit to recover money
wrongfully levied as a tax because such so called
tax had no legal existence. There is no provision
in that Act for levying any tax described in s. 57 of
the Act at all otherwise than by the prescribing of
the machinery for its levy in ss. 58-61. If that
machinery is not applied, no liability to paj' such
tax can arise. Where the Municipal Commis-
sioners of a town had not determined on the imposi-
tion of a tax of that description till 22nd April of
the official year for which i^uch tax was imposed,
and the list of persons to be taxed for that year was
not completed till 14th July of the same year, and
notice to A of his assessment under such tax was
r,ot given h m till 8th October in that year. Held,
that the tax had no legal existence, and that A was
entitled to recover from the Commissioners money
which they had collected from him as and for such
so-called tax. Bates v. Municipal Commissioners
for the Town of Bellary, 7 Mad. 249, followed.
Leman v. Damodaraya . I. L. R. I Mad. 158

ss. 138, IQQStreet — Encroachment —

Possession — Private property — Onus probandi. H
owned a house in the town of A, to which
the Towns Improvement Act, 1871, was extended
in 1879. In 1882 the Municipal Commissioners
professing to act under s. 139 of the said Act, re-
moved a pial which projected beyond the main
walls of H's house and abutted on a lane which
was used by the public. H proved that the pial
had existed for fifty years. Held, that the action
of the Municipal Commissioners was illeual. Hanu-
mayya v. Roupell . . I. Ij. R. 8 Mad. 64

— — S. 154 — Omission to take out licenses —

Criminal Procedure Code, 1S69, ss. 43, 66. S. 154
of Madras Act III of 1871 was not intended to'apply
to omissions to take out licenses. It applies to
breaches of the Act whicli, in a policeman's view,
are offences, and regarding which, if committed
within liis view, one of tvM courses is open to him —
VIZ., to arrest without warrant, or to lay an in-
formation before a Magistrate, and apply for a
summons or warrant. If he adopts the latter
course, then ss. 43 and 66 of the Criminal Proce-
dure Code require that the information should be
reduced to writing, and given on oath or solemn
affirmation, before any process is issued thereon.
S. 68 of the Code is limited to cases in which no
complaint has been made, and the Magistrate,

MADRAS TOWNS' IMPROVBMET
ACT (III OF 1871)— cojidc/. oa,

s. 154— concZc?.

propria motu, institutes a prosecution. Ako"-
Mous 6 Mad. Ap.O

s. 165 — Pmal clause sanctioned »)

Government with respect to other bye-laws, not ■•)>
respect to that to which it is attached. The mere j >-
lication of a bye-law with a penal clause at the d
which had not been passed by the Municipal Ci-
missioners or approved be the Government as >
plicable to the bye-law in question, though it is
so passed and approved in reference to other e-
laws, cannot avail to legalize the infliction of le
penalty. Bye-laws requiring licenses in cas. in
which Madras Act III of 1871, by specifyins le
cases in which they shall be required, has iinpli ly
declared they shall not be required, are in viola m
of the Act. " Anonymous . 8 Mad. A 3

s. 168 — Suit on a contract agast

Municipal Commissioners — Notice. A suit
brought to recover from the Municipal Commism-
ers of Madura the balance of a sum of money ue
for timber supplied under a contract duly rde
with them. Held, that the plaintiff was entitli to
sue on the breach of contract without , giu?
notice, such a suit not falling under the provi: ns
of s. 168 of the Towns' Improvement Act (II of
1871, Madras). Mayandi v. McQuhae

I. L. R. 2 Mad. J4

Seh. B, el. 4 — ' ' Pleader and Pp is-

ing vakil " — Magistrate' s Court vakil. The wfds
' ' Pleader and Practising Vakil ' ' used in (^ 4,
Sch. B of the Madras Towns' Improvement ;ct,
1871, are not restricted to persons who havob-
tained sanads from the District or High Courti'Ut
include all practitioners in Courts of criminal jis-
diction within the municipal limits. PalamcO'MI
Municipality v. Annasami I. L. R. 6 Mad.00

Seh. C— Horse— Pony under th rn

hands. In the Madras Towns' Improvement
1871, the word '' horse " includes a pony >
when by reference to the number of haii'l-
articles of Sch. C show a contrary intention.

C is part of the Act. No tax is leviable umi
Act on a four-wheeled carriage on springs dra\^
one pony under thirteen hands. Vizagap a«
Municipality v. Walker . I. L. R. 5 Madiw
MADRAS TOWNS NUISANCES ^
(III OF 1889). [

See Bench of IMagistrates.

I. L. R. 18 Madje4

ss. 3, 6, and 7— Common go"'-

house — Vacant unenclosed site. The accused
found gaming on a vacant site, the propcrt}'
seventh accused. The seventh accused wa
victed under the Madras Towns Nuisances At
and 7, and the other accused under s. 7-
that the site in question was not a common ga'"-"
house and that the convictions were acconW
wrong. Queen-Empress v. Jaoannayakul

I. L. R. 18 Ma. 4ff

( 7797 )

DIGEST OF CASES.

( 7798 )

,1 ^RAS TOWNS NUISANCES ACT
( I OF 1889)— concld.

— 88. 3 and 11 —

See Sentence— Imprisonmk>-t—Impri- I
SONMENT IN DEFAri.T OF Fink. I

I L R 18 Mad. 490
I. L. R. 22 Mad, 238

NDRAS VILLAGE COURTS ACT

(,0F 1889).
_| 8. 13-

See Small Cause Cotjrt. mofxtssil—
Jurisdiction— General cases.

I. L. R. 13 Mad. 145

proviso 3—" Land " includes

In Madias Act T of 1889, s. 13, proviso

'.lid " land " includes land covered by a

„oi , and conso.-iupntly a suit for house-rent, unless

[iu( nder a written contract signed by the defcnd-

antls not cognizable in a Village Munsif's Court.

Na.yahamma t'. Kamakshamma' ■

L L. R. 20 Mad. 21

— S.73-
See MuNSiF, jurispictton of.

I. L. R. 21 Mad. 363
I. L. R. 24 Mad. 335
I
1\PEE BIRT " TENURE.

' See Grant — Construction of Grants.

19 W. R. 211
IISTRATE.

Col.
Appearance of Jurisdiction on Pro-
rEEDINOS 7801

)mmitment to sessions couet . 7801

Jiuty of Magistrates . . . 7805

General Jurisdiction . . ; 7807

Powers of Magistrates . .7813
Reference by other Magistrates 7826

He-tr'al of Cases . . . 7829

Review of Orders , . . 7830
Spbcial Acts —

' T XIX OP 1838 (Coasting Vessels,

Bombay) 7830

:t XXVI OF 1850 (Towns Improve-
ment, Bombay) .... 7831

Act XXXV of 1850 (Ferries, Bombay)

Act XXII of 1855 (Ports and Port
Dues) 7831

Act I OF 1858 (Compulsory Labour,
Madras) 7831

Bengal Act III of 1863 (Transport
of N.4TrvE Labourers) . . 7831

Bombay Act IX of 1863 (Cotton
Frauds) 7831

Bombay Act VIII of 1866 (Poisonous
Drugs) . .* . . . 7832

MAGISTRATE— co«^i.

CoL

; — rovclL
V OF 1879 (Land

Re-

9. SPKf ial An
Bombay Act

venue) 7832

Bombay Regulation XXI op 1827

(Opiuivi) 7832

Cattle Trespass Act, 1857 . . 7833
Cattle Trespass Act, 1871 . . 7833

Chowkidars 7834

Companies Act (VI op 1882) . . 78.34
Illegal Confinement . . . 7834
Madras Abkari Act . . . 7835
Madras Act III of 1865 . . 7835

Madras Regulation XI op 1816 . 7836
Madras Regulation IV of 1821 . 7836
Merchant Seaman's Act, 1859 . 7836
North-Western Provinces and

OuDH Municipalities Act, 1883 . 7836
Opium Act (I op 1878) . . . 7837

Penal Code 7837

Police Act, 1861 .... 7838,
Post Office Acts, 1854, 1866 . . 7838
Railways Act (X^T:II of 1854) . 7838
Railways Act (IX op 1890) . . 7839
Registration Acts, 1866, 1877. . 7839

Salt Laws 7839

Stamp Act, 1869 .... 7839

Whipping 7840

Witness 7840

IO-ITransfer of Magistrate during

Triai 7>'40

11. Withdrawal of Cases . . . 7843
See Bench op Magistrates.

See Calcutta Municipal Act.

9 C. W. N. 18

See Cantonment iLiciSTRATE.

See Complaint.

See Confession— Confessions to Magis-
trates.

See CRiMrNAL Proced uke Code, ss. 133,
145.

See Criminal Procedure Codes, ss. 436,
4;)8(1H72, ss. 296, 297).

I. L. R. 4 Cale. 16 ; 647

I. L. R. 9 Bom. 100

2 B. L. R. S. N. 2 : 10 W. R. Cr. 35

iSce'DlSCHARGE OF ACCUSED.

See European BRrrisH Subject.

I. li. R. 36 Calc. lea

See Jurisdiction.

I. L. R. 32 Calc. 552-

( 7799 )

DIGEST OF CASES.

( 7800 )

MAGISTRATE— con<(Z.

See Jtjbisdiction of Criminal Court.
See Maintenance, Order of CRiMiNAii
Court as to . I. L. R. 25 All. 545
See Nuisance.
See Possession, Order of Criminal

CORUT AS TO.

See Prostitute . 3 B. L. R. A. Cr. 70
I. L. R. 6 Cale. 163

See Recognizance to Keep Peace.

See Reformatory Schools Act.

See Security for Good Behaviour.

See Summary Trial.

I. L. R. 29 Cale. 409

See Transfer op Criminal Case —
General Cases . I. L. R. 24 All. 151

See Warrant of Arrest — Criminal
Cases.

See Witness — Criminal Cases — State-
ments of Witness.

I. L. R. 29 Cale. 483

See Witness — Criminal Cases— Persons

competent or not to be Witnesses.

8 Bom. Cr. 126

16 W. E, Cr. 49

20 W. R. Cr. 76

I. L. R. 2 Cale. 405

I. Ii. R. 3 All. 573

See Witnesses I. L. R. 32 Cale. 1093

appearance of, to show cause —

See Practice — Criminal Cases — Rule

to show Cause . I. I.. R. 4 Cale. 20

I. L. R. 25 Cale. 798

as Court —

See Trespass . I. L. R. 36 Cale. 433

attestation of —

See Evidence — Criminal Cases — Exa-
mination and Statements of Accused.
See Examination of Accused Person.

cannot split up offences in order

to give himself jurisdiction —

See Robbery . . 5 C. W. W. 372

competence of, to hear appeal — •

See Jurisdiction.

I. L. R. 36 Cale. 869

— discretion of—

See Witness — Criminal Cases — Sum-
moning Witnesses.

I. L. R. 30 Cale. 508, 508n

— duty of, to enforce attendance —
-See Witness . I. L. R. 35 Cale. 1093

MAGISTRATE— co/iW.

- duty of, to maintain decree o

Civil Courts—

See Wrongful Restraint.

5 C. W. N II

examination of, as witness-

See Transfer of Criminal C/i-
Ground for Transfer.

I. L. R.21Calc.2(

jurisdiction of—

See Tolls . I. L. R. 38 Calt 8i

liability of—

See Judicial Officers, liability

of Native State —

See Confession — Confessions to JSis
trate . I. L. R. 22 Bom .81

— personal liability of—

See Epidemic Diseases Act, s. 4.

I. L. R. 31Calcl2i
8 C. W. K38

powers of—

See Appeal in Criminal Cases— A( rn
tals, appeals from.

I. L. R. 26 Madl7{

1 See Criminal Procedure Code, s. 13.

13 0. W.I 36

^See Possession, Order of Cbjoia
Court as to — Costs. i

See Railways Act, s. 113.

I. L. E. 18 Bon44(
I. Ii. R. 20 Mar 381

See Reference to High Coub?.-Cbi

MiNAL Cases.
See Sanction for Prosecution - ' '

TO grant Sanction.
See Security for Good Behavi-
I. L. R, 29 Ca

See Transfer of Criminal Casi: -
RAL Cases . I. L. R. 26 Ma ^^'

th(

first class-

powers of Magistrate

See Criminal Proceedinos.

I. L. R.24M. -■

power of, to make order Obo-

lute without taking evidence—

See Criminal Procedure Code, s.33.

13 C. W.

387

- re-trial of cases —

See Discharge of Accused— Efi7I|J
Discharge . I. L. E. 29 Ca. ?»«

( 7801 )

DIGEST OF CASES.

{ Te

A IST'RAT'E—conid.
_ taking part

during police

in iiry—

See Transfer of Criminal Case —
Ground for Transfer.

5 C. W. N. 864

1 transfer of Magistrates—

I See Transfer . I. L. E. 35 Calc. 457

aI^earance of jurisdiction on

j^ proceedings.
Magistrate with power to do
!ular act or make particular order—
'deior maintenance under s. 53fU Criminal Pro-
'hi 'ode. Where the laAV empowers Magistrates
a rticular grade to do a particular act, or make
cei in order, it should always appear upon the
w lings that the Magistrate making the order or
liiV he act is a Magistrate who had jurisdiction to
) it An order under s. 536, Criminal Procedure
)dci 872, cannot be made by a Magistrate of the

coil class. SOMREE V. JiTUN SoNAR

I 22 W. R. Cr. 30

2 COMMITMENT TO SESSIONS COURT.

I,' Obligation to commit —

trji'i committed in procefding vnder s. 31S, Cri-
imProcedvre Code, ISHl. A Magistrate has no
iis>, tion to try, but must commit to the Sessions,
cas'if perjury committed before him in the course
jceeding taken under s. 31S nf the Code of
il Procedure. Queen v. Buloram

7 W. R. Cr. 104

9. Power to commit — Criminal

Code, isin, s. J71 — False evidence —
/ inquiry. A Munsif sent a witness before
'I', in order that the latter might hold
•ry investigation on a charge of giving
■ne, under s. 193 of the Penal Code. The
. without completing the investigation,
ise back to the Munsif, who finally corn-
prisoner. Held, that, while the Munsif
• committed the prisoner himself under
the Criminal Procedure Code, without
in before the Magistrate to conduct the
. investigation on a charge of giving false
; !ie Magistrate had acted irregularly in not
mpk'ting the inquiry. Case remanded
' -Magistrate accordingly. Queen v. Jan

1 AH I ED

I 3 B. L. R. A. Cr. 47 : 12 W. R. Cr. 41

, * j— Case sent ly Civil

ourj'or investigation under s. 171, Criminal

,r ,r. n^^g^ i_^f^j When a Civil or Criminal

Is a case for investigation to a Magis-

; 3. 171 of the Code of Criminal Procedure,

' ' -;:-trate to whom the case is sent must himself

«ldjie investigation. Anonymous

6 Mad. Ap. 2

. j~|"; ■ Commitment by

^vbc'^nale Magistrate in case not exclusively triable

M AGISTR AT B— cow irf.

I 2. COMMITMENT TO SESSIONS COURT—

j contd.

by Sessions Court. A commitment by a Subor-
dinate Magistrate to the Sessions Court with respect
to offences not exclusively triable by the Sessions
Court is good. Anonymous . 6 Mad. Ap. 17

5. Criminal Pro-
cedure Code, 1S72, ss. 4^, l!3~Order~Commitlal.
The word " order " in s. 46 of the Code uf Criminal
Procedure, associated as it is with the words " judg-
ment and sentence," means a final order, — i.e., one
disposing of a case so far as the Magistrate, to whom
a Subordinate Magistrate submits the proceedings of
the case for higher punishment, is concerned. It
does not deprive that Magistrate of the exercise of
his discretion as to its being a proper case for the
Sessions, and of the power of committing it for trial
given by s. 143 of the Code of Criminal Proeedure.
Imperatrix v. Abdulla . I. L. R. 4 Bom. 240

6. Power to direct committal

— Sessions Judge, jower of. A Magistrate of the
district has no power to direct a Subordinate Magis-
trate to commit for trial in the Sessions Court
accused persons who have been discharged by the
Subordinate Magistrate, and such committal when
made by the Subordinate Magistrate is illegal. The
Sessions Court is the only authority empowered by ,
law to direct a committal. Anonymous

4 Mad. Ap. 31

7. Commitment by

Sessions Judge to Magistrate — Trial by Joint
Magistrate. Where a Magistrate of a district who
had discharged a prisoner was subsequently directed
by the Sessions Judge to commit him for trial, and
the commitment was eventually made by the .loint
Magistrate : — Held, that such commitment was not
illegal. Although ordinarily the order of the Ses-
sions Judge would be directed to the Magistrate who
had discharged the accused person, yet there is
nothing in the Criminal Procedure Code to prevent
such Sessions Judge from directing a committal by
any Magisti-ate who is authorized to make com-
mitments. Queen v. Lekhra.i 2 JN". W. 132

s.c. Agra F. B., Ed. 1874, 206

8. Reference to Ses-
sions Court — Criminal Procedure Code, 1861,
1S69, s. 435. Where a Magistrate of the district
thinks that in any case tried by a Magistrate sub-
ordinate to him a failure of justice has occurred, in
consequence of the latter not committing the ac-
cused for trial at the Court of Sessions, he should
refer the case, with an expression of his opinion to
the Sessions Court, which has power, under s. 435
of the Code of Ci iminal Procedure, to direct a com-
mitment to the Sessions Court for trial. S. 435
having been altered by Act VIII of 1861), it is no
longer necessary to refer such cases of the High
Court, as required by the Court's ruling in Reg. v.
Chanvcraya bin Chondasaya, 5 Bom. Cr. 65. Reg.
V. Kala bin Hari Gama . 7 Bom. Cr. 72

9. Criminal Pro-

cedure Code {Act VIII of 1869), a. 435— Can dia-

( 7803 )

DIGEST OF CASES.

( 7801 )

IVE AGISTRA T'E—contd.

2. COxMMITMENT TO SESSIONS COURT—
contl.

missed without sufficient inquiry. Semble : When
a charge is dismissed by a Subordinate Magistrate
without inquiry, a Magistrate has no power, under
s. 435 of Act VIII of 1869, to order a trial before
another Magistrate, but can only order a commit-
ment to the Court of Session. Queen v. Hiralal
Singh . 5 B. L. R. Ap. 48 : 14 W. R. Cr. 8

10.

Power to set

aside finding where the Magistrate acted without
jurisdiction — Criminal Procedure Code, 1869, s. 435.
Where a Subordinate Magistrate of the first class
acting without jurisdiction held a trial and acquitted
the accused person under s. 255 of the Code of Cri-
minal Procedure : — Held, that the High Court
alone could set aside the finding under s. 404, and
that the Magistrate of the district had no power
to do so under s. 435 of the Code as amended by Act
VIII of 1869. Anonymous . 4 Mad. Ap. 61

11. Magistrate and

Joint Magistrate, power of — Preliminary enquiry.
Legally, and for the purposes of a commitment, a
Magistrate and Joint Magistrate have equal powers,
and the Joint Magistrate is not bound to act upon
the instructions of the Magistrate in a judicial pro-
ceeding, such as the commencement of a preliminary
enquiry. Queen v. Tilkoo Goala

8 W. R. Cr. 61

12, ~= — — Power to direct

re-trial — Criminal Procedure Code, 1861, s. 435.
Where a Subordinate Magistrate discharges a
person accused of an offence not being an offence
specified in the seventh column of the schedule to
the Criminal Procedure Code as trial by the Court
of Session only or by the Court of Session or Magis-
trate of the district, the District Magistrate has no
power to direct a re-trial under the i^rovisions of s.
435 of the Code of Criminal Procedure. Reg. v.
Subhana bin Ganu . . .9 Bom. 169

13. ■ Courts of Bead

Assistant Magistrate and Deputy Magistrate —
Trial of Munsif for extortion — Mad. Beg. VI of
1816, s. 8. The Courts of the Head Assistant
Magistrate and of the Deputy Magistrate have
jurisdiction to try a District Munsif on charges of
extortion in the course of the exercise of his judicial
functions. The Sessions Judge is a proper person
to sanction the prosecution. By Innes, J. — The
rule (laid down in s. 8, Regulation VI of 1816) re-
quiring the committal of such cases to the Court
of Session has been impliedly, though not expressly,
repealed. In the ^natter of the petition of Naraya-
nasamiAyyar .... 7 Mad. 182

14.

Duty of Magistrate to

commit — Magistrate making enquiry in Sessions
case — Discharge of accused — Criminal Procedure
Code, 1872, s. 195. A Magistrate enquiring into a
case exclusively triable by the Court of Session is
not bound to commit the accused person for trial
where the evidence for the prosecution, if believed,
-would end in a conviction, but is competent, if he

MAGISTRATE— contd .

2. COMMITMENT! TO SESSIONS COUR,
r contd.

discredits such evidence, to discharge the ace d
Lachman v. Juala . . I. L. R. 5 All, U

^^- — Enquiry into it

triable by Court of Session. Held, where a Mis-
trate had tried a case exclusively triable by a C rt
of Session, and the conviction of the accused r-
son and the sentence passed upon him at such al
were for that reason annulled by the Court of s-
sion, but the proceedings held at such trial re
not annulled, that such Magistrate micht conit
the accused person to the Court of Session oche
evidence given before him at such trial. Emp ss
«.]Ilahi Bakhsh . . I. L. R. 2A1110

16.

^Criminal '"o.

cedure Code, 1898, s. 208 — Duty of Magistrakn-
quiring into a case triable by the Court of Sun
to take the evidence of all the witnesses produceby
the accused. A Magistrate enquiring into a se
under Ch. XVIII of the Code of Crimbal o-
cedure is not empowered to frame a charge or Die
out an order for commitment until and after heas
taken all such evidence as the accused may o-
duce before him for hearing. Queex-Exipees v.
Ahmadi . . . . I. L. R. 20 AIL 14

17. Criminal F'^-

dure Code, 1882, s. 253 — Duty of Magistral in
dealing with the evidence produced in a case tr'/l.
by a Court of Session. Held, that a Ma"
enquiring into a case triable by the Court <
sion is not bound to commit simply becau
evidence for the prosecution, if believed, disclo . <•
case against the accused, but he is competer'to
consider the reliability of such evidence and toia-
charge the accused if he find it untrustworthy. l»
re the petition of Kalyan Sihgh

I. L. R. 21A11.36

18.

Criminal let-

dure Code {Act X of 1882), s. 349. Under s49
of the Criminal Procedure Code, a second iss
Magistrate transmitted a case to the District Mjia-
trate, being of opinion that a more severe pu la-
ment was deserved than he was erapowere w
inflict. The District Magistrate return the rtrtl
to the second class Magistrate, directing hiijW
commit the case to the Sessions Court. The m-
mittal directed was duly made. The High (iri
refused to interfere in the matter, holding
the proceedings of the second class Magi-
were not illegal, and that there was nothing
which took away the jurisdiction of the sC""
class Magistrate to commit. QuEEN-EMPREit-
Chandu Gowala' . . I. L. R. MCalc.O''

See Queen-Empress v. Havia Tell-U-a

I. Ij. R. 10 Bom.

10. ^

Criminal ^

cedure Code, 1882, ss. 209 and 210—Dischari^
accused — Magistrate, obligation of, to commit }»
prima facie case is made out against acct^

( 7805 )

DIGEST OF CASES.

( 7806 )

L ilST'RAT'E—contd.

•MMITMENT TO SESSIONS COURT—
concld.

n;r ss. 209 and 210 of the Criminal Procoduro
oc;(Act X of 1882), a ]\Iagistrate holding a proli-
liii y enquiry ought to commit the accused to the
oi! of Session when the evidence is enough to
utif party on his trial, and such a case obviously
■it when credible witnesses make statements
hi, if believed, would sustain a conviction.
uis-EMPRESS V. Namdev Satvaji

I. L. R. 11 Bom. 372

J, 411-i

Penal Code,

Pvniskment not within jurisdiction of
{a^irate. Where an offence under s. 411 read
it' 75 of the Penal Code appears to be deserving
f r.ieater punishment than the Magistrate trying
c. award, the best course for him to adopt is to
an it the accused for trial to the Court of Session.
!c::m-Empeess v. Khalak I. L, R. 11 All. 393

2i — Power of coni-

iit!ni to Sessions Judge — Code of Criminal Pro-

Ax, 1882, s. 254— Penal Code {Act XLV of 1860),

l\— Circular Order No. 9 of 6th September 1S69

-Ring. The commitment of a case under s. 147

f M Penal Code to the Court of Session by a

)f[ y Magistrate is not necessarily illegal. Al-

!io 1 the case is shown to be triable only by a

la; irate under the second schedule of the Cri-

ii Procedure Code, there is nothing in s. 264

' riminal Procedure Code which prevents

ite committing a case under s. 147 of the

It" to the Court of Session, provided he

; the accused has committed an offence,

his opinion, cannot be adequately punish-

The instructions contained in Circular

the 6th September 1809 are to be read

1 provisions of the Criminal Procedure

"i: (.^ueex-Empre.s.s V. Kayemollaii Maxdal

I. Ii. R. 24 Calc. 429

1 C. W. N. 414

3. DUTY OF MAGISTRATES.

Sec Crimixal Proceedings.

5 C. W. N. 252
See Evidence — Criminal Cases — Pre-
vious Convictions.

I. L. R. 28 Calc. 689

See Possession, Order of Criminal
Court as to —

Likelihood of Breach of the
Peace ; . 6 C. W. N. 923

Striking off Proceedings.

6 C. W. N. 923

See Revision, Criminal Cases— Dis-

CHAEGE of Accused 7 C. W. N. 77

; Duty in judicial capacity.

cessity of a Magistrate acting in a dispassion-
l impartial manner, and not in the spirit of a

MAGISTRATE— cow^i.

3., DUTY OF MAGISTRATES— coMfi.
prosecutor, observed upon. In the matter of
Mahesh Chandra Baner.jee. Queen v. Purna
Chandra Banerjee. Queen v. Kali Sirkar

4 B. L. R. Ap. 1 : 13 "W. R. Cr. 1

2. Acting on private

knowledge of accused. A Magistrate acting judicially
should not import into the ca,se before him his
previous knowledge of the character of the accused,
but should determine his guilt or innocence
upon the evidence given in the case. Reg. v.
Vyankatrav Shrinivas . 7 Bom. Cr. 50
See Meheroonissa v. Bhashaye Madha

2 W. R, Act X, 29
Lopotee Domnee v. Tikha Moodai

8 W. R. Cr, 67

3. Deciding on evi-

dence when collected by police. Magist>rates
should clearly understand that, whilst the police
perform their proper duty in collecting evidence, it
is the function of the Magistrate alone to decide
upon the sufficiency or credibility of such evidence
when collected. Government v. Karimdad

I. L. R. 6 Calc. 496 : 7 C. L. R. 467

4. — Commitment of^

accused for trial. The duty of a committing Magis-
trate is to ascertain whether by the evidence for the
prosecution a prima facie case is made out against
an accused. Queen v. Maha Singh 3 N. W. 27
Queen v. Kishto Doha . 14 W. R. Cr. 16

5. Re-trial — Record

of former trial. A Magistrate trying a case is as
much bound by strict rules of evidence as any Ses-
sions Judge or Civil Court. Where proceedings,
which had already been taken against the accused
before another Magistrate, had been quashed, and
a new trial directed, the Magistrate holding the
second trial is not justified in referring to the former
record as a whole, but only to such portion^; of it as
have been speciallv jjut in evidence before him.
In the matter of Devi Dutt . 7 C. L. R. 193

6. Trial by Magis-

trate who as Collector instituted proceedings. The
District Magistrate should not himself try a case in
which ho instituted the prosecution as Collector.
Queen v. Nadi Chand Poddar 24 W. R. Cr. 1

7. Conviction by

Magistrate for practising in Collector's Court without
certificate — Officer both Magistrate and Collector.
Where an officer is acting in two capacities, —
viz., as Assistant Collector and Assistant Magistrate,
— he should not, in his capacity of Magistrate,
convict a person of an offence committed before him
as Collector : therefore he has no authority as
Magistrate to fine a person under s. 34, Act XX of
1865, for practising in his Court as Collector \\ ithout
a certificate. In the matter of Ramdyal Singh

5 B. L. R. Ap. 89

See Queen r. Hikalal Das

8 B. L. R. F. B. 422

( 7807 )

DIGEST OF OASES.

( 7808 )

MAGISTRATE— con<f/.

3. DUTY OF MAGISTRATES— cowqW.
s.c. Government of Bengal v. Hiralal Das

17 W. R. Cr. 39

8. Conviction of p2ib-

lic servant — Sentence. Where the person in the
employment of the Court is convicted of a criminal
offence punishable by fine or imprisonment, it is
quite competent to the Magistrate in his adminis-
trative capacity to dismiss him from his office.
Queen v. Chunder Coomar Sen

1 Ind. Jur. N. S. 97 : 5 W. R. Cr. 4

9. Judge — Bias — I
Magistrate 's jurisdiction where complainant is Ms
private servant — Legality of conviction and sentence
passed by such Magistrate in such a case. The \
mere circumstance that a trying Magistrate is
the master of the complainant does not deprive the
Magistrate of his jurisdiction, though it is expedient '
that such a complaint should be referred to another [
Magistrate. I71 re the petition of Basapa

I. L. R. 9 Bom. 172

10. Translations of

findings, record of. Magistrates are bound to
record translations of their findings in criminal
cases. Reg. v. Katunji Bhukan . 1 Bom. 17

11. Comments on

proceedings of Sessions Judge. Comments by a
Magistrate, in the form of a supplementary state-
ment, on the proceedings of the Sessions Judge
disapproved of. Reg. v. Govinda bin Babaji

5 Bom. Cr. 15

12. Witness— Threat-
ening witness. In cross-examination before the
Court of Session a witness stated that, when she
was before the committing Magistrate, that officer
addressing her, taid : " Recollect, or I will send you
into custody. ' ' Held, that, if the Magistrate did so
address the witness, he exceeded his duty. Queen-
Empress V. IsHEi Singh . I. L. R. 8 All. 672

13. High Court call-
ing for explanation — Letter of explanation, form
of. When the High Court calls for an explanation
from a Magistrate, the letter of explanation should
be sig'.ed by the Magistrate him.-elf, and not by
some one purporting to sign on his behalf. Roop
Lall Doss v. Manook . 2 C. W. N". 572

MAGISTRA T-E—contd.

4 GENERAL JURISDICTION.

" Magistrate," meaning of-

Jurisdiction of — Criminal Procedure Code, ISOl,
«• l-i9 — Meaning of " Magistrate.'" The words " a
Magistrate " in s. 149 of the Code of Criminal Pro-
cedure mean " any Magistrate," and not merely
"the Magistrate having jurisdiction." Reg. v.
Vahala Jetha , . .7 Bom. Cr. 56

2. " Magistrate " — Criminal Pro-
cedure Code, 1861, s. L —Head of the village. The
head of a village is within the definition of a Magis-
trate as defined in s. 15 of the Criminal Procedure
Code. Anonymous . . 4 Mad. Ap. 2

4. GENERAL JURISDICTION— conM.

" Magistrate of District,'

meaning of — Criminal Procedure Code,
.1. 61. Meaning of the words " Magistrate of th
District " in s. 61 of the Criminal Procedure Cod
Anonymous . , . .3 Mad. Ap. 2

4. District Magistrate— 6Vmin<

Procedure Code, 1SS2, s. ISS. The expression " Tl
District Magistrate, a Presidency Magistrate,
Sub-Divisional Magistrate and a Magistrate of th
first class " in s. 488, Criminal Procedure Code, 1881
means the Magistrate of the particular district i
which the jaerson resides, against whom such a con,
plaint is made. In re the petition of Faerudin
I. L. R. 9 Bom. 4.

Criminal

cedure Code (Act X of ISS-^), s. 4S!^ — Complaint I
a wife against her husband for maintenance. A coni
plaint under s. 488 of the Criminal Procedure Co(l
(Act X of 1882) falls within the cognizance of tl
Magistrate competent to entertain such complaini
and within the local limits of whose jurisdiction tl
husband or the father is actually residing at tl
date of such complaint. In re the petition
Fakrudin . . . I. L. R. 9 Bom, 4

-Head Assistant Magistrate-i

Power of Magistrate to order trial of cases of ofeM
committed in town outside his division. An obje'
tion was taken before the Sessions Judge in ti
hearing of an appeal that the Head Assistai
Magistrate had no jurisdiction to try the case, i
having a distinct local jurisdiction which did m
include the town where the offence was committfi
It appeared that the Head Assistant Magistrate h
received general insti-uctions from the Magistrate
the district, as a temporary arrangement, to take i,
criminal cases arising within the limits of the sSj
town, which was not within his division. Ht\
upon those facts, that the Head Assistant Mag
trate had no jurisdiction. Anonymous

6 Mad. Ap. •

7. Village Magistrate— Foi

to issue summons. A Village Magistrate \
authority to issue a summons to persons within, t
not without, the local area of his jurisdiction, wnt
attendance may be required in cases which he*
empowered to try. Queen v. Kei-SHNama

I. L. R. 5 Mad. 2

8. __-^— Magistrate also Justice
the Peace— 5.3 Geo. Ill, c. 155, s. 105— Ad Vh
isr,3. A Magistrate being also a Justice ot J
Peace had no jurisdiction to try a Bntisn-tHf'
subject under the Penal Code. His juris^ction-
the trial of such subjects was governed and linuif
by 53 George III, c. 155, s. 105. and Act VU ot 1-
neither of which gave him power to award impi
ment in default of payment of a fine. Ki
Dixon . . . .6 Bom. Cr.

9. ■ Trial by District Magistrj*

for breach of orders of a Reserve m/P^SIt
ofPolice— Criminal Procedure Code (^«. /L
KS9S), s. 5i6 ; (Act X of 1882), s. 556-Police f

( 7809 )

DIGEST OF CASES.

( 7810 )

I 3ISTR ATE— coM<(?.
4. GENERAL JURISDICTION— coftiri.

/ IS^l), s. 29 — Magistrate not personally inter-
tt Held, that the Magistrate of a district
a lot, on account of his being the head of the
il ! of the district, debarred by reason of s. 556 of
i€ odo of Criminal Procedure from trying a person
;c ed under s. 29 of the Police Act, 1801, of a.
re h of the orders of a Reserve Inspector of Police,
u n-Empress v. Narain Singh

I. li. R. 22 All. 340

] ^ — Meaning of the term. " per-

OJ Ily interested "—Criminal Procedure Code,

i't — Opium Act {I of 1878), s. 9 — Jurisdiction
' < ter in charge o/ excise and opium administra-
m, a district to try ca^es under the Opium Act.

] gistrate in charge of the excise and opium
in istration of a district is not " personally
!t( ?ted " in the observance of the provisions of
ot of 1878. He is therefore not precluded from
vei -iing jurisdiction in respect of offences against
le bove-mentioned Act. In the matter of the
yti\<i of Ganeshi . I. L. R. 15 All. 192

i: ^ Disqualification of Magis-

ra or Judge — Summary procedure — Bias of
lofi'rate — Chairman of Municipality -trying cases
\ J gistrate — Criminal Procedure Code, ss. 260,
■'2, 16S, -Joo — Obstruction in public road. A
"'P 7 Magistrate, being also the Chairman of
.^i cipality, without issuing process or making a
■ooi of the proceedings, or dismounting from a
'iny a which he was riding, convicted and fined an
liia ant of the town, who admitted that he had
11^0 the level of a road within the limits of the
uia pality which was considered by the Magistrate
> at unt to the offence of causing an obstruction
i a blic way. i/e?i, that the Magistrate's pro -
idu/was illegal, and the conviction should be set
sidfj Queen-Empress v. Erugadxj

' I. L. R. 15 Mad. 83

Disqualification of Magis-

try a ease in which he is personally

ed — Criminal Procedure Code (Act X

-: 555 — Statement made out of Court.

M-d was convicted of reckless and furious

1 a public thoroughfare under cl. 3 of s. 31

y Act VII of 1867. The complainant was

uf the Magistrate who tried the case, and

1^1 u\:d that the Magistrate's wife was driving

' a Jg-cart on the thoroughfare when the

'n.»a rjven by the accused passed by. Held, that

-trate was incompetent to try the case, as

personally interested " in it, within the

• i 3. 555 of the Code of Criminal Procedure

1882). It is extremely improper for a

'. in disposing of a case, to rely in any way

'II -nts made to him out of Court. Queen-

''t'B,3 V. Sahadev valad Tukaram

I I. L. R. 14 Bom. 572

^3-.l Disqualifying interest of

>?^'l '^^'^^— Criminal proceedings — Irregularity

P\'onally interested" — Criminal Procedure

'<««, ■:'S2, s. 555. Where a District Magistrate,

^ prclcutor, initiated and directed the proceed-

OL. III.

MAGISTRATE-co/i<(/.

4. GENERAL JURISDIGriON— co»«(i.
ings against certain accused persons who were
charged by him with having committed offences
punishable under ss. 143 and 150 of the Penal Code,
and where it appeared that the District .Magistrate
had himself taken an active part in causing the dis-
persion of the unlawful assembly, and had pursued
and directed the pursuit of the members thereof, and
that he subsequently took pains to collect the
evidence showing the connection of the accused
with the unlawful assembly and the keeping of
armed men, on which evidence the accused were
afterwards convicted by himself ; and whereat also
appeared from the judgment of the District Magis-
trate that he had embodied therein matters which,
if irrelevant, showed that he should have been
examined as a witness, and that such matters should
not have been stated without the accused having
had an opportunity of testing them by cross-
examination : — Held, that the District Magistrate
was disqualified from trying the case himself and
that the conviction must be set aside, and a fresh
trial held before some other Magistrate. The
words "personally interested," as used in s. 555
of the Code of Criminal Procedure, do not merely
mean " privately interested " or " interested as a
private individual, ' ' but include such an interest as
the District Magistrate must have had under the
above circumstances in the conviction of the
accused. Grish Chunder Ghose v. Queen-
Empress . . . I. L. R. 20 Calc. 857

14. ^Disqualification of Magis-
trate or Judge — Personal interest — Criminal
Procedure Code, 1882, s. 555 — Bombay District
Municipal f Act {VI of 1873), s. s4 — Municipal
offence. The mere fact that a Magistrate is the
Vice-President of a District Municipality and Chair-
man of the Managing Committee does not disqualify
him from ^trying a charge of an offence brought by
the Municipality under Bombay Act VI of 1873 ;
but if he has taken any part in prom iting the prose-
cution, as, for instance, by concurring in sanctioning
it at a meeting of the managing committee or other-
wise, he will be disqualified by reason of the exis-
tence of a personal interest, over and above what
may bo supposed to bo felt by every Municipal
Commissioner in the affairs of the Municipality.
Queen-Empress v. Pherozsha Pestonji

I. L. R. 18 Bom. 442

15. - Disqualification — Criminal
Procedure Code {Act V of 1898), s. 5'>n — Disquali-
fication of Magistrate to try a case — Directing the
prosecution of an accused — Subsequent trial by same
Magistrate — Legality of trial. A Deputy Tahsil-
dar made a report concerning A to the Tahsildar,
who, in turn, reported the matter to the Deputy
Magistrate. The latter authorized the Tahsildar to
prosecute A on such charges as might be capable of
being proved in a Criminal Court, and a prosecution
was accordingly instituted. The case was tried by
the same Deputy Magistrate, and, on thejobjection
being raised that under s. 556 of the Code of Cri-
minal Procedure, that Magistrate was disqualified
from trying the accused : Held, that he was not dis-

. 11 Q

( 7811 )

DIGEST OF CASES.

( 7812 )

MAGISTRATE— con/fZ.

4. GENERAL JURISDICTION— confcZ.
qualified. The act of the Deputy Magistrate was an
authorization, and not a direction that the accused
should be prosecuted. Girish Chunder Ghose v.
The Qveen-Empress, I. L. B. 20 Calc. S57 ; In
the matter of the ■petition of Ganeshi, I. L. E. 15
All. 192 ; and Queen-Empress v. Narain Singh,
I. L. R. 22 All. 340, referred to. Qtjeen-Empeess
V. Chenchi Reddi (1900)

I. L. B. 24 Mad. 238

16.

S^ Disqualification of Magis-

trate— Criminal Procedvre Code, 1SS2, s. 565-
Personal interest. The accused was a compounder
in the employ of Treacher & Co. He was tried and
convicted by the Presidency Magistrate of criminal
breach of trust as a servant in respect of certain
goods belonging to the company. It appeared that
the Magistrate was a shareholder in the company
which prosecuted the accused. Held, that the
Magistrate was disqualified from trying the case.
As a shareholder of the company, he had a pecu-
niary interest, however small, in the result of the
accusation, and was therefore " personally interest-
ed " in the case within the meaning of s. 555 of the
Code of Criminal Procedure (Act X of 1882). The
words " personalh- interested " in the section are
not intended to exclude pecuniary as distinguished
from a personal interest. In re Rodrigues

I. L. R. 20 Bom. 502

17.

Disqualification

of Magistrate — Magistrate holding local investigation
— Witness. A Magistrate, by going to view a place
for the purpose of understanding the evidence, does
not thereby make himself a witness in the case, and
render himself disqualified from trying it. In the
matter of the petition of Lalji

1. L. E. 19 AIL 302
18. . Disqualification of Magis-
trate to try case — Witness — Omission to record
statement of accused under Code of Criminal Pro-
cedure, 18 S2, s. 3H4. Where a Magistrate before
whom an accused person is brought omits to record
as provided by s. 364 of the Criminal Procedure
Code, statements made by the accused, he does not
thereby make himself a witness, and so become
disqualified from trying the case. Queen-Empkess
r. Fattah Chaxd . I. L. R. 24 Calc. 499

Fateh Chand v. Dukga Prosad

1 C. W. N. 435

19.

Disqualification of

Magistrate to try case — Criminal Procedure Code,
1882, ss. 202, 540, and 555— Examination of
witnesses. AYhere a Magistrate before whom a
complaint was made held an inquiry under s. 202
of the Criminal Procedure Code for the purpose of
ascertaining the truth or falsehood of the complaint
before issuing process, and after, holding such
inquiry, summoned the accused, examined witnesses
on both sides, and, after a short adjournment,
examined a \vitness called by himself, and found the
accused guilty under s. 341 of the Penal Code : —
Held, that there is nothing in the Criminal Proce-

MAGISTRATE— conicZ.

4. GENERAL JURlSDICTION^^onii.

dure Code which disqualifies a Magistrate who holds
a preliminary inquiry imder s. 202 from trying the
case himself, and that the provisions of s. 555 had
no application, inasmuch as the Magistrate had not
initiated or directed the proceedings against the
accused person, nor taken an active part in the
arrest or collection of e>'idence against such person.
Held, also, that the same Magistrate was strictly
within his lights under s. 540 of the Criminal Pro-
cedure Code in receiving fresh evidence after evi-
dence on both sides had been taken and the case
adjourned for judgment, inasmuch as the case was
still a pending case, when such evidence was taken.
In the matter of Ananda Chunder Singh v. Bas!
MuDH . . . I. li. R. 24 Calc. i6'i

20. Disqualifying interest ol

Magistrate — Criminal Procedure Code, 18S2.
ss. ■>37 and 555 — Investigations preliminary it
a trial — " Personally interested " — " Court of com-
petent jurisdiction.''' Where investigations of th(
police preliminary to a trial are directed to a verj
considerable degree by a Magistrate, such Magis
trate is personally interested in the case, and i
disqualified from trying it by the provisions of s.55.
of the Criminal Procedure Code. A disqualifjin:'
interest may result from a purely official connectio-
with the initiation of criminal proceedings. Girin
Chunder Ghose v. Queen-Empress, I. L. R. 20 Cah
857, followed. A Magistrate who, in consequence (
such a personal disqualification, is forbidden b
law to try 9 particular case, though he may 1
authorized generally to try cases of the same clas
cannot be ?aid. with respect to that case, to be
Court of competent jurisdiction, and his orders a-
not covered by the saving provisions of s. 53
Stjdhama Upadhya v. Queen-Empress

I. L. R. 23 Calc. 32

21. . Incompetence of Magi

trate who is Chairman of Municipality ■
try municipal cases— C;miV^^ ProcedureCo.
1882, ss. 526 and 555—'' Any case," meanm
— Prosecution under Bengal Municipal Act (B<
Act III of 1884)— Grounds for transfer of en
An appeal against a conviction under s. 217, r^.
of the Bengal Municipal Act (Bengal Act 111
1884) was preferred to the District Magistrate, v
was also Chairman of the Municipality. On
application to the High Court for a transfer to
Court of some other Magistrate -.—Held, that, ai'
from the question whether there was a disqij
fication under s. 555 of the Criminal Proce..!
Code, the case was one which it was expecui
should be transferred to another Court. J
Baneejee, J.— S. 555 of the Criminal Procea
Code renders a Magistrate incompetent to tr,
municipal case if he is the Chairman of the MU''
pality. The words " try any case in that^^
are comprehensive enough to include the ned
of an appeal. Nistarini Debi^-. g"^|E

Magistrate becoming ^

ness," competence of, to try case

-I

( 7813 )

DIGEST OF CASES.

( 7814 )

AGISTEATE— co?i«(^.
4. GENERAL JURISDICTION— conc/r^.

gpecticn by Magistrate trying case — Information
i obtamid frcm insfcction. \^"here a Magistrate
sited the scene of occurrence of the alleged offence
d not merely noted the various features thereon of
iportance to a proper decision of the case, both
rties being present on the occasion, but obtained
formation outside the scope of such inspection as
l&ids the presence of the accused and based his
igment thereon -.—Beld, that the Magistrate had
us made himself a -w itncss, and could not try the
^e ; and that he should be examined as a witness
the re-trial. Satri Dulali v. Empress

3 C. W. N. 607

;.. Magistrate jer-

8 ally interested — Criminal Procedure Code, 1882,
s i55 — Magistrate giving evidence before himself.
\ ere a Magistrate, in whose Court a complaint of
r ing and mischief had been filed, made a personal
i'pection of the locvs in quo :^Held, that by so
cng he had made himself a witness in the case,
a I had thereby rendered himself incompetent to
t it. Held, further, that, where a Judge is the sole
J ge of law and fact in a case tried before himself,
h :annot give evidence before himself or import
B ters into his judgment not stated on oath before
tl Court in the presence of the accused. Queen-
E'RESs V. Manikam . I. L. E. 19 Mad. 263

!:. Magistrate expressing

01 lion in a report after local investiga-
tii, competency of, to hold the trial —
Tr sfer, ground of — Criminal Procedure Code,
18', s. 202. The fact that a Subordinate Magis-
iw expressed his opinion in submitting a report in
a c e referred to him for local investigation under
H. : 2, Criminal Procedure Code, is no bar to his
!iol ng the trial on an order by the District Magis-
tri making over the case to him for that purpose.
Aii'da Chunder Singh v. Busu Mvdli, I. L. R.
24 lie. 167, referred to. Bani Madheb Roy v.
Ro BAJ GossAMi . . 4 C. W. N". 604

Transfer — Jurisdicfion-

TH\^fer of criminal case to Subordinate Magistrate

—I'frict Magistrate, fower of, to pass order relating

uot on his otvn file — Criminal Procedure Code

of 1S9S), ss. 190, 192, 435. When a case

made over for disposal to a Subordinate

ite by the District Magistrate, the latter is

potent to pass any order relating to it, other

iirdor such as might be made by him under

' XXXII of the Code of Criminal Procedure.

-ngk V. Mahabir Singh, 4 C. W. N. 242,

' '.pdy Sheikh v. Queen-Empress, I. L. R. 27

"■lAj 979, referred to. Radhabuli.av Roy v.

■Bm|DE Behari Chatterjee (1002)

I. Ii. R. 30 Calc. 449

POWERS OF MAGISTRATES.

Sm
men

Magistrate of first class —

e — Appellate Court — Enhanceynent of punish -
As an Appellate Court, a first class Magis-

MAGISTRATE— coj^frf.

5. POWERS OF MAGISTRATES— <;onfrf.
trate has power to pass any sentence which a Subor-
dinate Magistrate might have passed. AxoxY-
MOTJS Case . . . I. L. E. 1 Mad. 54

Magistrate of second elass-

Criminal Procedure Code, 18S2, s. 200, ami Sch. Ill,
Arts. II, III (7)— Power to commit for trial — Case
triable by Court of Session and Magistrate of the
first class — Discharge of accused. A complaint
of an oflFence made punishable by s. 392 of the
Penal Code was brought in the Court of a Magis-
trate of the second class, who had been invested
with the powers described in s. 206 of the Criminal
Procedure Code. The Magistrate passed an order
directing that the enquiry should be held in his
Court, and accordingly an inquiry was held under
the provisions of Ch. XVIII of the Criminal Proce-
dure Code, and the accused was discharged. Held,
that powers conferred under s. 206 of the Criminal
Procedure Code convey authority to carrj- into
effect any of the provisions of Ch. XVIII of the
Code ; that the procedure to be adopted under Ch.
X,VIII is not confined to cases exclusively triable
by a Court of Session, but is also applicable to cases
which, in the opinion of the ^'agistrate concerned,
ought to be tried by such Court ; that the order of
the Magistrate in the present case directing enquiry
to be held in his Court, must be taken to mean that
in his opinion the case referred to was one which
ought to be tried by a Court of Session ; and that
his order discharging the accused was therefore
leeal. Ramsundar v. Nirotam

I. Ii. E. 6 All. 477

Penal Code,

s. 71 — Criminal Procedure Code, ss. 39, 235 —
Rioting, grievous hurt, and hurt — Punishment for
more than one of several offences — Powers of 3Iagis-
trate of first class conferred on Magistrate of second
class during trial — Power to sentence as first class
Magistrate. On the 8th August 1884, a Magistrate
of the second class began an enquiry in a case in
which several persons were accused of rioting and of
voluntarily causing grievous hurt. On the fith
September the powers of a Macistrate of the first
class were conferred on the I\Iagistrate by an order
of Government, which was communicated to him on
the 8th September. On the 9th September, the
case for the prosecution having closed, the Magis-
trate framed cliargcs against each of the accu.sed
under ss. 323 and 325 of the Penal Code, recorded
the statements of the accused and the evidence for
the defence, and, on the 10th September, convicted'
the accused of all the charges, passing upon each
of them, in respect of each charge, sentences which
he could pass as a Magistrate of the first class, but
could not have passed as a Magistrate of the second
class. On appeal the Sessions Judge, on the
ground that the prisoners had committed the
offence described in s. 148 of the Penal Code, held
that the sentences passed by the Magistrate were
illegal, as being inconsistent with the provisions-
1 of s. 71, paras. 2 and 4, and he accordingly reduced

11 Q 2

( 7815

DIGEST OF CASES.

( 7816 )

MAGISTRATE— confi

6. POWERS OF MAGISTRATES— con<<f.

the sentences of imprisonment which the Magistrate
had passed to the maximum of imprisonment which
the Magistrate could have indicted under s. 14S.
Hdd, by the Full Bench (Pethern.m, C.J., and
Brodhuest, J., dissenting), that the sentences
passed by the Magistrate were legal. Per Oldfield,
Mahmood, and Dcthoit, J J., that, with reference
to the terms of s. 39 of the Criminal Procedure Code,
a Magistrate of the second class who has begun a
trial as such and continued it in the same capacity
up to the passing of sentence, and who, prior to
passing sentence, has been invested with the powers
of a Magistrate of the first class, is competent to
pass sentence in the case as a Magistrate of the first
class. Per Petheram, C.J., that a case must be
taken to be tried upon the day the trial commences ;
that, for all the purposes of the trial, the Magistrate
in this case retained the status of a Magistrate of
the second class, and that he was therefore not
competent to pass seatencs as a Magistrate of the
first class. Per Brodhxibst, J., that the sentences
passed by 'the Magistrate were, as a whole, illegal ;
that if he had convicted the accused under s. 14S of
the Penal Code, his order would, under the circum -
stances, have been legal. QtJEEN'-E>n'RE33 v.
Pebshad . . . X L. R. 7 Aa 414

-^4.

Power to send boy to Ee-

formatory School — Grimiml Procedare Coie
399—Rifo''>nato'y Schools Act, 1876, ss. 2, 7. The
Reformatory S ihools A -t, 1876, provides only for
male juvenile offenders being sent to reformatory
schools by Magistrate of the first cla^s, and s. 39 )
of the Code of (Mminal Proced,ure, 1SS2, so far as it
authorizes a Magistrate not of the first class to direct
that a male juvenile offender be sent to a reforma-
tory, is repealed. Hdd, therefore, when a second
class Magistrate directed a boy to be sent to a
reformatory under s. 399 of the Code of Criminal
Procedure, that the order was illegal. QrEEK-
Empeess v. Madasami . I. Tli. R. 12 Mad. 94

Joint Magistrate witli

powers of Magistrate of district— Criw^waZ
Procedure Code, 18 U, ss. 15, 23, and 68. A Joint
Matnstrate who has been vested with the full powers
of a Magistrate of a d'Strict, and to whom a case
is duly made over by the Magistrate, is competent,
under S3. 15, 23, and 6S of the Code of Criminal Pro-
cedure, to initiate proceedings without any formal
complaint against parties other than those men-
tioned in the original complaint. In the mitter of the
'petition of LxjcHMrprr Sixgh . 18 W. R. Cr. 43

6. Subordinate Magistrate —

Power of, to try caie an report of police or on com-
plaint. A Subordinate Magistrate (second class)
who is not specially vested with powers under s. 66
(a) of the Code of Criminal Procedure, 1861 (as
amended by Act VIII of 1869), has no jurisdiction
to try a ca=e on the report of a police officer or on a
complaint directly preferred to him. In the
matter of the petition of Shaxkar Abaji Hoshixg
6 Bom. Cr. 69

MAGISTRATE— con^i.

6. POWEPvSjOF MAGISTRATES— con«.

7. Magistrate of third class—

Power to entertain charge in police rep>jrt — Cri-
minal Procedure Code, 1S72, s. 123. A Magistrate
of the third class can try a person accus^ of a
cognizable offence who has been forwarded to him
by an officer in charge of a police station onder
s. 123 of the Code of Criminal Procedure. Rbg
V. Lala Shambhtj ... 10 Bom. 70

Deputy Magistrate— Z)e/a«/<

in appeiraroce of party bailed. In consequence of
the default in appearance of a person bailed, the
surety was compelled to pay the penalty msationed
in the recogaizance. The Deputy Magistrate
applied for and received the permission of thf
District Magistrate to try the accused under s. 174
of the Penal Code. Held, that the Deputy Magis-
trate had no jurisdistioa to try the case, it not
having been referred to him ''.either on comidaint
preferred directly to the Magistrate or oa the report
of a police officer." Qceen" v. Tajcmaddi Lahoet
1 B. Ii, R. A, Cr. 1 : 10 W. B. Cr. 4

Power of delegation ol

authority to receive complaints — Crimna
Procedure Cole, 18i9,ss. 23 id} and 66 (bj—Oriti
of Local Government, effect of. The powar of t
Magistrate to delegate the receiving of complaints
under s. 66(6), Code of Criminal Procedure, is not
equivalent to the power of the Local Govemmorttt
invest withlo;al jurisdiction under s. 2i («i),andn<;
Magistrate can act under Ch. XX wiio has not beet
legally invested with the local jurisdiction. Nj
order of the Local Grovernment under the laite;
section can legallv have retrospective e5«;>
Macdoxald v. Riddell . 16 W. B. Cr. 7

10. . Power to refer case whei

no jurisdiction to try it— Power to fry <»j
ictthoat complaint. A Subordinate Magistrate W
no power to refer a case, which he has himadf i
jurisdiction to try, to a full-power Magistrate, «|
the latter has therefore, under such circumsUnw,
no jurisdiction to take up the case without a r"
plaint being made to him. Reg. '•. BAor va:
Owsari .... 4 Bom- Or. :

IL . Power to refer case sent f

investigation by Civil Court— Po!«rk> '
case without complaint. Held, that the Magis::'
of a district, to whom a case has been sen:
investigation bv a Civil Court, has no power to :
it to a full-power Magistrate, and the latter
therefore, under such circumstances, no jurisdic:
to take up the case without a complaint mad-
him. Reg. v. Dip Chaxd Khushal

, 4Bom.Cr.

12. — Magistrate trying case hi

self after referring it— Trial withoui ra
ing proceeding under s. 3;, Criminal Procedure t o
1S6?. A Magistrate of a district, before whon:
complaint had been made, without complying «"
the provisions of s. 66, Act XXV of 1861, sent :
petition to be disposed of by a Deputy Magistr^

( 7817 )

DIGEST OF CASES.

( 7818 I

[AQISTRATE— co7i/<f.

5. POWERS OF IklAGISTRATES— corUrf.
ad when the Deputy Magistrate had proceeded to
•me extent with the case, the Magistrate took it
ip and tried it himself. Hdd, that the Magistrate
;iving once sent the case to the Deputy Magistrate
,r trial, had no power to try the case himself
lithout formally recording a proceeding under s. 26
: Act VIII ol 1869. Queen v. Girish Chandra
Ihose . 7 B. li. R. 513 : 16 W. R. Cr. 40

13. Order for dismissal of com-

lair.t — Discharge of accused- — Code of Criminal
roadure. Act X of lSS-2, ss. 2o3, 259. A Magis-
late is not competent to pass an order of dimissal
I discharge inconsequence of the absence of the
•jplainant in warrant cases not coming within
259 of the Code of Criminal Procedure, except in
ses coming within the last clauses of s. 253 of the
me Code. Govcsda Dass v. Dflaix Dass

L L. R. 10 Calc. 67 : 13 C. L. R. 408

14. Removal of ease from file

Deputy Magistrate — Criminal Procedure
)de {Ad XXV of l^^Jl), .?. 66— Act VIII of 1869,
36 — Discretion of Court. Interference by the
gh Court in a case where the Magistrate had
properly exercised his discretion in removing a
se from the file of a Deputy Magistrate. In the
tier of the petition of Naba'Koiak Banerjee

5 B. L. R. Ap. 45

15.

Power to refer to Subordi-

] te Magistrate. A full-power Magistrate has
authority to refer for disposal to a Subordinate
Ijgistrate a complaint made originally to such full-
jjKet Magistrate. PvEg. v. Papidio ^Ifthdo
I 9 Bom. 167

.6. Reference to District

Jiigistrate — Powers of second dass 'Magistrate —
C\ntnitt/il to Court of Session — Criminal Procedure
Ci'«, 1882, s. 349. An Assistant Magistrate con-
Vi:€<d. a person under ss. 406 and 417 of the
Iial Code, and referred the case to the District
Jgistrate for sentence under the provisions of
a 149 of the Code of Criminal Procedure. The
I|trict Magistrate was of opinion that the offence
y\> one properly punishable under s. 420 of the

Sial Code, and one which the Assistant Magistrate
no jurisdiction to deal with, and that therefore
reference under s. 349 was ultra vires and illegal.
Cja reference to the High Court : — Hdd, that the
^pstant Magistrate was not wholly without
Jt|3diction, as he was competent to commit the
»'ised to the Court of Session, though not to hold
• Iial, and that the District Mag strate might, if he
tl ight proper, commit the accused to the Court
Abdcx Wahab v. Chandia

I. L. R. 13 Calc. 305
Criminal Proce-

Code Amendment Act {III of 1SS4), s. 8 {6)-
ypean British subject — Trial by District Magis-
■ with a jury — Procedure in a " trial by jury "
riminal Procedure Code, s. 307—Poutr of
Drict Magistrate dis-^enting from verdict to sub-

MAGISTRATE— cotUd.

5. PO^^EES OF MAGISTRATES— con/rf.
mil the case to High Court. The effect of d. 6 of
s. 8 of Act III of 1884 (Criminal Procedure Code
Amendment Act) is to confer upon the District
Magistrate precisely the same authority as the
Sessions Judge has, under s. 307 of the Criminal
Procedure Code, to submit to the High Court a case
in which he disagrees with the verdict of a jury so
completely that he considers a reference necessary.
The expression " trial by jury," as used in cl. 6 of
s. 8, does not only refer to proceedings up to the
time when the jury pronounce their vert^ct, but
refers generally to cases triable with a jury as
contradistinguished from cases tried with the help
of assessors or in any other manner mentioned in
the Criminal Procedure Code. QrEEN-EMPRESS
r. McCakthy . . . I. L. R. 9 AIL 420

18. Magistrates not Justices

of the Peace— J/af/ra.v Boat Pules— Ad IV of
1>>42 — Ad IX of ls46 — Liability of oumer under rule
7 — Burden of proof. Under Act IX of 1846, the
Madras Government is authorized to make, in
respect of ports in the presidency, such regulations
for the management of boats and such other
matters as are provided for bj- Act IV of 1842jn
respect of the Madras roads, being similar in
principle to the provisions of the said Act, but
varying in detail as local circumstances may
require. Act IV of 1842, s. 24, empowers a Justice
of the Peace of the town of Madras to hear and
determine all pecuniarj- forfeiture and penalties
had or incurred under or against that Act. Hdd,
that it was competent to the Government of Madras

i to provide that cases cognizable under the rules
passed in accordance with Act IX of 1846 should
be heard and determined by Magistrates not being
Justices of the Peace. In re Hni thakonni

I. li. R. 9 Mad. 431

19. Reference to first class Ma-

gistrate — Criminal Procedure Code, 1882, s. 349.
A second class Magistrate having convicted a
person of theft and sent him to a first class Magis-
trate for enhanced punishment as an old offender,
under s. 349 of the Code of Criminal Procedure, the
first class Magistrate returned the prisoner to the
second class Magistrate and directed that oflScer to
commit the case to the Session. On a reference by
the Sessions Judge, the High Court, while allowing
the committal to stand, directed that in all cases
referred under s. 349 of the Ck)de of Criminal Pro-
cedure, the Court to which the case is referred
should dispose of the case itself and not send it
back to the Court by which the reference is made
for comnuttal to the Session. giKEN- Empress r.
VmAKXA . . . I. li. R. 9 MadL 377

20. Return by Subdivisional

Magistrate of case referred to him— Criminal
Procedure Code, s. 349 — Order — Committal. Under
s. 349 of the Criminal Procedure Code (Act X of
1882). a second class Magistrate transmitted a case
to a Subdivisional Magistrate, being of opinion that
a more severe punishment was deserved than he

( 7819 }

DIGEST OF CASES^

( 7820 )

MAGISTRATE— con<(^.

5. POWERS OF MAGISTRATES— conicZ. ^

(the second class Magistrate) was empowered to
inflict. The Subdivisional Magistrate, instead of
disposing of the case himself, returaed it to the
second class Magistrate for committal, and there-
upon the latter committed it. .Held., that the
action of the Subdivisional Magistrate, in returning
the case to the second class Magistrate, was illegal,
as he was bound to pass a final judgment, sentence,
or order. His order was therefore annulled, and
he was directed to dispose of the case himself.
Queen-Empress v. Havia Tellapa

I. L. R. 10 Bom.^196

21. Deputy Magistrate in

charge of District Magistrate's office — Cri-
minal Procedure Code, 1SS2, s. 437. A Deputy
Magistrate placed in charge of the current duties of
the District Magistrate's office is not thereby vested
with jurisdiction under s. 437 of the Code of Criminal
Procedure. Ramanctnd Mahtan v. Koylash
Mahtan . . . I. L. R. 11 Calc. 238

22.

Reference to Deputy Ma-

gistrate for enquiry — Criminal Procedure Code,
1861, s. 273. Where a case was referred to a
Deputy Magistrate for enquiry only, that enquiry
cannot be regarded as a trial. Where a Deputy
Magistrate is competent to try a case, it is doubtful
whether it is in accordance with the spirit of s. 273
of the Criminal Procedure Code for the Magistrate
to refer it to him for enquiry onlv. Queen ?;.
Bawtjl Singh . . 1 N. W. Ed. 1873, 306

23. Reference to District Ma-
gistrate by Civil Court for enquiry — Power
to refer to Deputy Magistrate. A District Magis-
trate, to whom a case was sent in which four per-
sons were specially committed by a Munsif for
investigation of charges of forgery, perjury, etc.,
has no power under s. 273 of the Criminal Procedure
Code, 1861, to refer it to the Deputy Magistrate.
Queen v. Ruttre Ram . . 2 N". W. 21

Queen v. Assuf Ali Khan 3 K". W. 126

24.

Power to transfer ease

sent for inquiry— i?e/erence hy Civil Court— Order
of commitment hy Subordinate Magistrate — Crimi-
nal Procedure Code, 1860, ss. 273 and 171. A Small
Cause Court Judge sent a case for investigation to
the Head Assistant Magistrate under the provisions
of s. 171 of the Criminal Procedure Code. The
Head Assistant Magistrate transferred the case for
investigation to the Subordinate Magistrate, who
committed the case to the Sessions. Held, that the
order of commitment was bad. S. 273 of the Code
of Criminal Procedure is inapplicable to a case
referred to a Magistrate under s. 171. Anonymous
6 Mad. Ap. 41

25. Reference by District Ma-
gistrate to Subordinate Magistrate— Cr/m«-
nal Procedure Code, 1S61, Ch. XIX. The Magis-
trate of a district or division is authorized, under
s. 273 of the Criminal Procedure Code, to transfer

MAGISTRATE— cow<(Z.

5. POWERS OF MAGISTRATES— con<<?.
proceedings under Ch. XIX of that Code to hi?
subordinates. Queen v. Abdoollah

2 N. W. 40]

26. Reference to full-powei

Magistrate — Subordinate Maijistrate—Crimim
Procedure Cole, 1861, Ch. X VI. Held, that th<
Magistrate of a district before whom a criminal casi
is brought, either on comjjlaiat preferred directly tc
such Magistrate or on the report of a police officer
cannot, under s. 273 of the Criminal Procedun
Code, refer such case to a full-power Magistrate
A full-power Magistrate, though executivelv
inferior to the Magistrate of the district, was no'
a Subordinate Magistrate within the meanins c
Ch. XVI of the Criminal Procedure Code, nor wa
he " immediately subordinate " to the Distric
Magistrate within the meaning of s. 434 of the sani
Code. Reg. v. Krishna Parashram

5 Bom. Or. 6

27.

Power to refer cases fo

inquiry— Cr/wmaZ Procedure Code, 1861, .«. 273
Under s. 273 of the Criminal Procedure Code, :<
full- power Magistrate may refer for enquiry to ij
Subordinate Magistrate (criminal cases, that is!
prima facie, any criminal case). The referene
may be for inquiry or for trial by the Subordinat
Magistrate, or with a view to cora;nitm3nt eithe
to a Court of Session or the High Court. AN-o>fY

Mous 2 Mad. Ap. 4

28. Criminal Pi

cedure Code, 1869, ss. 68, 273. S. 273 of the Cr{
minal Procedure Code, 1869, applies only to crimin.j
cases brought before the Magistrate of the districj
and either on complaint preferred direct to sue
Magistrate or on the report of a police office'
There is no provision of the Code which authoriz
a Magistrate acting under s. 68 of the Code to ref
the case for enquiry or trial to another Magistral
S. 68 merely authorizes him to take cognizance
offences without complaint and to issue summo
or warrant. Anonymous . 7 Mad. Ap,

29. Criminal P

cedure Code, 1861, s. 273 — Criminal Procedure Cm
1869, s. 23 (g) — Power to refer cases to other Mag
trates. S. 23 (g) of the Code of Criminal Procedii
1869, makes the Magistrate of a district compett
to refer cases under s. 273 of the Code to a Divisioi
Magistrate exercising full powers. Anonymous
7 Mad. Aj

30. Criminal P

cedure Code (Act XXV of 1861), s. 273—Griev
hurt. A Magistrate has no power, under s. 273'
the Code of Criminal Procedure, to refer a casei
grievous hurt for trial to a Deputy Magistn
having onl}' the power of a Subordinate Magistr
of the second class. Gabind Chandra Bisw-i^
Hem Chandra Barder . 6 B. L. R. Ap. ]>
31. Befe

case after initiation to Subordinate Magistral-
Criminal Procedure Code, 1872, ss. 44, 45, 47, '■

( 7821 )

DIGEST OF CASES.

( 7822 )

; AGISTR ATE -ccmtd.

5. POWERS OF MAGISTRATES— co«<fZ.
, all cases in which a Magistrate refers a complaint
i-eady initiated to a Subordinate Magistrate for
Iquiry, the procedure adopted for the purpose
;ght to conform either to s. 44 or s. 49 of the
liminal Procedure Code. Ramzan Alt r. Dcrpo
i.MiLLA . . . . 24 W. R. Or. 58

'32. Criminal Pro-

t,'.ure Code, 1872, $. 45. Pending inquiry into a
•cjirge of house-breaking, the second class Magis-
Ite of B Division was transferred to A Division.
'3 case was transferred to his file by the District
]jeistrate. In the course of inquiry it appeared
■ tithe second class Magistrate that the offence com-
li ed was robbery, and therefore not triable by
T|i. Proceedings were accordingly stayed and
tj case submitted to the Magistrate of the division.
Iti Magistrate of the division, considering he had
i.jurisdiction as the oiience was not committed in
Jrj division, forwarded the case to the Magistrate
01 the district. The Magistrate of the district
ojered that an inquiry should be held, and that the
'ck should be committed to the Sessions by the
sjind class Magistrate if there was sufficient
(• Jcnce. The second class Magistrate accordingly
c-iimitted the case to the Sessions. Held, that the
oiljr of the District Magistrate wa^ illegal. Qtjeen
r.iiDAPA Venkanna . I. L. K. 4 Mad. 327

:8. — Power of District Magis-

ti'te to refer case referred to him for trial
— je/erence to full-power Magi-itrate — Criminal
P\.edvjre Code, IR^I, s. 276. It is competent for
tl|Ma^strat€ of a district to refer for trial to a
fvl power Magistrate a case submitted, imder
8. 76 of the Code of Criminal Procedure, to such
Mtistrateof the district by a Subordinate Magis-
tr ). Reg. v. Mangla Bhulia 7 Bom. Cr. 69

Power of.

pa orders in cases before subordinate Court without
trisfer to his own Cou^t — Judicial enquiry before
M|'- of process, legality of — Code of Criminal
PiMure, ss. 192, 202, 203, and 204. Held, where
th homplaints were not made to the District Magis-
tr,; nor had the cases Sased on those complaints
l»j withdrawn to his Court by any order, but
Wf in the Court of a Joint Magistrate, who had
« lined the complainants, that the District
Mestrat-e was not justified in interposing in the
'ri of the cases, and had no authority under the
jato pass any order in those cases. That even
'f.e cases had been removed by the District
M^stratc to his own Court for trial, it was very
"" innable whether the District Magistrate could
' i'lors directing a judicial inquiry by another
ite before the issue of processes so as to
the trial. Jhumuck Jha v. Pathuk
. I. L. R. 27 Calc. 798

Code of Cri-

" J'rocedure (Act V of 1S9S), ss. 192, els. (1)

' • 529 (/), 145 — Transfer, order of, made

'iigi^trate not empowered by law m that behalf

proceedings taken under such transfer whetfter

MAGISTRATE— co«/(/.

5. POWERS OF MAGISTRATES— con<t7.
void. A Magistrate of the first class, not being a
District Magistrate or a Subdi visional Magistrate,
passed an order under s. 145 (1), Code of Criminal
Procedure, and transferred the case to another Ma-
gistrate, and proceedings having been taken by the
later, the same was sought to be set aside as being
without jurisdiction. Held, that, although .such
transfer is not authorized by s. 192 {2) of the Code
of Criminal Procedure, still the proceedings taken
upon such transfer may be considered saved under
the term of s. 529, cl. (/), of the Code. Under the
terms of s. 192 (2), a Magistrate of the first class,
even when duly empowered to transfer cases, can
only transfer an equiry or trial relating to an otfonce.
Queen-Empress v. C'hidda, I. L. R. 20 All. 40,
explained and distinguished. Akbar Alt Kiiax
V. DoMi Lal . . . . 4 C. W. ]Sr. 821

36. Reference of case

far trial of offence by sidjordinate Court — Power
of District Magistrate to issue warrants for arrest
of other persons concerned in that offence. AVhere
cognizance was taken of an offence on a police report
and the case was made over to a Subordinate ilagis-
trate : — Held, that, so long as the case connected
-mth. that offence remained with the Subordinate
Magistrate, no other Magistrate was competent to
deal with it, and that applications for warrants
against other persons concerned in that offence
should be made to the Magistrate before whom the
case was and to no other ^lagistratc. GoLArnY
Sheikh v. Qtjeen- Empress I. U. R. 27 Calc. 979

Jn the matter of Golabdy Sheikh

4 C. W. N". 827

37.

Crim inal Pro-

cedure Code, 1SS2, ss. loo, 202, and 203— Magis-
trate's power to direct a local investigation by tti£
police — Complaint of an offence cognizable by a
Magistrate — Examinatimi of complainant. S. 1.55
of the Code of Criminal Procedure (Act X of I8S2)
deals only with the powers of police officers. It
confers no power or authority on ^Magistrates to
direct a local investigation by tiie police, or call for
a police report. It is not a proper course for a
Magistrate, when a complaint is made before him
of an offence of which he can take cognizance, to
refer the complaint to a police officer. He is bound
to receive the complaint, and after examining the
complainant to proceed according to law. In re
Jan KID AS Guru Sitaram I. L. R. 12 Bom. 161
38. District Magis-
trate, poiver of, to order further enquiry — Improper
discharge — Se^<:sions case, further enquiry directed
in,— Criminal Procedure Code (Act X of 18S2),
ss. 430, 437. It is competent to a District Magis-
trate who ha-s issued a notice to an accused person
who in his opinion has been improperly discharged
to show cause under s. 430 of the Criminal Proce<lure
Code why he should not be committed to the Court
of Sessions, on cause being shown to order a further
inquiry under the provisions of s. 437. Queen-
Empress v. M.VXIEUDDIX ^IrxDn.

I. L. R. 18 Calc. 75

( 7823 )

DIGEST OF CASES.

( 7824 I

MAGISTRATE— cwifrf.

5. POWERS OF MAGISTRATES— co»fd.

39, Penal Code,

g_ 228 — Insulting a Magistrate — Crimiiud Proce-
dure Code, s. 195. The accused intentionally in-
sulted a Village Munsif in the discharge of his ma-
gisterial duties : the Village Munsif did not prefer a
complaint or sanction a prosecution, but a second
class Magistrate charged the accused under Penal
Code, s. 228, on a police report and convicted him.
Held, that the second class Magistrate was compe-
tent to try the complaint, and the conviction was
right. Qtjeen-Empkess v. Venkatasami

I. L. R. 15 Mad. 131

40. — — — - Criminal Pro-
cedure Code, s. 191 — Magistrate taking cognizance
of an offence on his own personal knowledge — Right
of accused to have the case transferred. WhevQ a
Magistrate was found to have taken cognizance of
an offence under cl. (c) of s. 191 of the Code of
Criminal Procedure -.—Held, that he had no power,
on an application being made under the last clause
of the section abovenamed, to refuse to transfer
the case. Qtjeen-Empeess v. Hawthorne

I. Ij. E. 13 All. 345

41.

Criminal Pro-

cedure Code [Act X of 1882), s. 191 (c) ; {Act V of
7898), ss. 190, 191 — Transfer of case or commitment
to Se'ssions Court. A Magistrate, when a valid
objection is taken under Criminal Procedure Cede,
s. 191, that he cannot try a case, is not bound to
transfer it, but may elect to commit the case to a
Court of Session. Queen- Empress v. Felix

I. li. B. 22 Mad. 148
42. Criminal Pro-
cedure Code, s. 454 — European British subject —
Relinquishment of right to he dealt with as suck
British subject — Trial by second class Magistrate.
A European British subject was prosecuted in the
Court of a second class Magistrate, who was a
Hindu, on a charge of mischief. The accused
appeared and did not plead to the jurisdiction of the
Magistrate who proceeded vnth and disposed of the
case. Held, that the Magistrate had not acted
ultra vires, since the accused had relinquished his
right to be dealt with as a European British subject.
Queen-Empress v. B^^rtlett

I. L. R. 16 Mad. 308

43. . Criminal Pro-
cedure Code {Act X of 1882), s. 164— Oaths Act
(X of 1873), ss. 4, 5, 14 — False evidence: A Magis-
trate, acting under Criminal Procedure Code,
s. 1C4, has power to administer an oath, and a
charge of perjury can be framed with regard to
statements made before him on oath when he is so
acting. Queen-Empress v. Alagu Kone

I. L. R. 16 Mad. 421

44, __ Criminal Pro-

cedure Code, 1882, s. 487—Poiver of Magistrate
to try an accused person for disobedience of a sum-
mons issued by him as Mamlatdar — Penctl Code,
s. 174 — Construction of statute. A Magistrate is not
debarred by s. 487 of the Code of Criminal Procedure

MAGISTRATE— con/(7.

5. POWERS OF MAGISTRATES— confe?;

(Act X of 1882) from trving an accused person umr
s. 174 of the Penal Code (XLV of 1860) for diso-
dience of a summons issued by him in his capacity [
Mamlatdar. In construing s. 487 of Act X of 18 ,
effect must be given to the words " as such Judge :
Magistrate,' ' and these words must be read in c •
nection \vith all the three classes of offences t-
viously referred to. Queen- Emjrress v. Sarat Ch-
dra Rakhit, I. L. R. 16 Calc. 766, followed. Que ■
Empress v. Raiji Daji . I. L. R. 18 Bom. 3)*

45. Distress v-

rant — Claim by third party to the property distrail
— Criminal Procedure Code, 1882, s. 386. \.
Magistrate, who has issued a distress warrant ui r
s. 386 of the Criminal Procedure Code, is not requ. 1
by law to try any claim which may be preferred j
the ownership of the property distrained. Que -
Empress v. Gasper . I. L. R. 22 Gale. (5.

46.

Criminal h-

cedure Code, 1882, s. 144 — Executive povxrstj
Magistrate — Order which might have the effecnf
interfering with the execution of a decree of a Cil
Court. A District Magistrate has no po't,
either under s. 144 of the Code of Ci\al Procedurir
in his executive capacity, to make an order for le
re-building of a structure on private land which is
fallen into disrepair or been pulled down ; nei t
has he power to make any order which would he
the direct effect of interfering with the execu ;u
of a decree of a Civil Court. In the matter ofhf.
petition of Rahmat-ullah . I. L. R. 17 All {5-

47. Criminal .p-

cedure Code (Act X of 1882), s. 497—Transfwf
case — Bail — Order admitting to hail— Power oj
District Magistrate to revise order. An order adt-
ting an accused person to bail made by a Magistte
is not revisable by a District Magistrate. Ifiie
latter considers the order wrong, he can refer to
the High Court. Queen-Empress v. Sadaib
Narain Joshi . . I. L. R. 22 Bom. ^9-

48. — — — Criminal '''»'

cedure Code {Act V of 1898), s. 190, sub-,
els. (a) a7id (c), and s. 191— Taking coo'-
of offence by Magistrate upon receiving a coh
of facts— Right of the accused to claim a trur
Penal Code (Act XLV of 1860), ss. 193 or
— Sanction unnecessary when offence alleged t
been committed in the course of an invtstign' •
the police. The complainant made a compl >'
the Magistrate by a petition in which he h
three persons and charged them with olfences i
certain sections of the Penal Code. The ^!
trate thereafter examined the complainant .j-
some witnesses on his behalf, and issued i^-
monses against the three persons mention'i m
the petition of complaint as well as agamspe
petitioner in this case for an offence 0*'^"!?
those mentioned in the said petition. Held,m
Magistrate took cognizance of the offence as agn
the petitioner under cl. (a), and not el. ( "
sub-s. (1) of s. 190, and consequently he n'anf"*

( 7825 )

DIGEST OF CASES

( 7826 }

iS QlST'RAT'E—contd.

j5. POWERS OF aiAGISTRATES— conid.
Jc'rred by s. 191 of the Criminal Procedure Code
trr trying the case. No sanction under s. 195
of i he Criminal Procedure Code is necessary for
tang cognizance of an offence under -=. 193 of
th Penal Code when the alleged false evidence
18 id to have been fabricated, not in relation
tony proceeding pending in any Court, but in
th ?ourse of an investigation by the police into
ih matter of an information received bj' them.

JAt ChAXDKA MOZUJIDAR r. QrEEX-EMPRESS

I I. L. K. 26 Calc. 786

3 C. W. N. 491

Qceen-Emperor r. Audul Eazzak Khax
I. L. K. 21 All. 109

aDtQuEEN-EMPRESS V. Fei.ix
j I. L. R. 22 Mad. 148

•!i. Disobedience of Order — Cri-

Mid Procedure Code {Act V of 1S9S). ,is. 144. 1S7—

Or\r to '* abstain from a certain act " — Trial by

M istrate, who made the order, of 'persons alleged

to ve disobeyed if. On a petition being filed in

tht'ourt of a Sub-T)ivisional First-class Magistrate,

^ef'ig out that a breach of the peace was likely to

ririfrom the simultaneous use of a certain'mosque

• ' nibers of the Hanifi and Shaft sects, the

ite passed an order, addressed to ten mem-

■:o were named, and several others of the

■ ct, and to three members, who were named

■ral others of the Shaft sect. The order

inl as follows : — " I do order hereby that

I llowing order should be observed in regard to

tlu'ntry of the said mosque, by any of you or any

"tl 'jMusulmans of the Hanifi and Shafi sects, for

:i piod of two months from this date, unless in the

mtiiwhile you establish your right in a Court of

'.'I fitt'nt civil jurisdiction." It set out five

' f half an hour each during which each sect, ;

M'ly, might enter the mosque, on ordinary

:id two periods of one hoiu- each in which |

t migbt enter the mosque on other days. |

at the order was within the pow ers conferred

> 144 of the Criminal Procedure Code. Certain

nM;bers of the Hanifi sect having entered the

"H|uein disobedience to the order hereinbefore

•efj-ed to, they were chaigod under s. 188 of the

'niin Penal Code in disobedience to an order by

" ;blic servant. The case was tried by the

M8|5trate who had passed the order. Held, that i

' holagiatrate was not competent to try the case,

mch as he had made the order under s. 144.

Qx^:»-Empress t'. ABDULr.A S.mieb (1900)

I. li. R. 24 Mad. 262

District Magistrate— CV/-

wii! Procedure Code (.\ct V of IMiS). ^■. 146— ;
dinate Magi>tratp. refusal to talr proceed iiuj^ — i
»n of nuch proceeding-'< by District Magis- j
some police report — Jurisdiction. Where,
' pr of a police report, a Subordinate Magis- '
ti^a, having come to the conclusion that there were
"0 .fticient grounds for proceeding under s. 145 of
tnCj^ode of Criminal Procedure, declined to talcc

MAGISTRATE— co«/(7.

5. POWERS OF MAGISTRATES— concR
such proceedings, and the District Magistrate on-
the same police report expressed a different opinioni
anrl instituted proceedings under s. 145 of the Code":
Held, that the District Magistrate had acted with
jurisdiction, and that the order of the Subordinate
Magistrate, declining to proceed under s. 145, could
not operate as a bar to such action. Chathu Rai v.
Nirrinjan Rai, I. L. R. 20 Calc. 729, distinguish-
ed. Baida Natu Majumdar v. Nibarax Chuxder
Ghose (1902) . . I. li. R. 29 Calc. 242
B.C. 6 C. W. N. 290

51. S'curity for

keeping the peace — Magistrate appointed in the
district — Limits of jurisdiction — Crimirud Procedure
Code (Act Vof 1898), ss. 12 and 107. A Magistrate
appointed to act as a ilagistrate in a district has,
unless his powers have been restricted to a certain
local area, jurisdiction over the entire district.
Held, therefore, where a Sub-divisional Officer in
a district instituted proceedings under s. 107 of the
Criminal Procedure Code against a person in his
sub-division and the District Magistrate transferred
the case to the Court of a Deputy Magistrate of the
first class appointed to act in the district, holding
his Court at the head-quarters of the district, that
the Deputy Magistrate had jurisdiction to try th6
case or to institute fresh proceedings against that
person. S.vrat Chuxder Roy r. Bepix Chaxdua
Rov (1902) . . . I. L. R. 29 Calc. 389
s.c. 6 C. W. N. 552

52. — — ■ Crimin.nl Pro-
cedure Code {Act V of 1898), s. 528— Order by Sub-
Divisional Magistrate, transferring case from one
Sub-Magistrate to another — Order by District Magis-
trate, cancelling that order and re-transferring the
case — Legality. A District Magistrate has no
power to cancel an order made by a Sub-Divisional
Magistrate directing the transfer, under s. 528 of
thc^Crhninal Procedure Code of a case from the
file of one Sub-Magistrate to that of another Sub-
Magistrate, and todirect the re-transfer of the case
to the file of the Sub-Magistrate from whom it was
transferred. Raguuxatha Paxdaram >: Emtekor
(1902) . . • I. L. R. 26 Mad. 130

53, Report by police officer of

another district— Jurisdiction— Report by a
police, officer of one district ; proceedings instituted
by Magistrate of another district— Code of Criminal
Procedure {Act F of 189S), s. 145. The Magistrate
of one district has jurisdiction to institute proceed-
ings under s. 145 of the Code of Criminal Proce-
dun- on a report drawn up by a police officer of
another district in respect of such portions of the
land or water mentioned in the rc[i'>rt as ho
within his jurisdiction. 1sh.\x Chinpeu Dass

,..o.w„M.oo2, . . i-,^H-,2«^»iJ;|«i-

C. REFERENCE BY OTHER MAGISTRATES.

1, Power in case referred foi-

enhancement of punishment— Cr/mmai Pro-

( 7827 )

DIGEST OF CASES.

( 7828

MAGISTRATE— cowi^Z.

6. REFERENCE BY OTHER MAGISTRATES—

cotiid.
■ccdure Code, 1872, s. 46 — Poiver to order committal
jor trial. A Magistrate, to whom a case is referred
for enhancement of punishment under s. 46 of the
Criminal Procedure Code, may order the committal
of the case for trial by the Sessions Court. In the
matter of Chinnimahrigadu I. L. R. 1 Mad. 289

2. Criminal Pro-

cediire Code, 1872, s. 46. A Magistrate to whom a
x;ase is referred for enhanced punishment has no
power to send the case for enquiry to another Magis-
trate. Queen v. Vei.ayudtjm

I. L. R. 4 Mad. 233

3. ■ Crimi7ial Pro-

■ ccdure Code, 1S72, s. 46 — Return of case referred
under s. 46. It is not competent for a Magistrate,
to whom a case has been referred under s. 46 of the
Code of Criminal Procedure, to return the case to the
referring Magistrate, on the ground that in his
opinion the latter has power to pass an adequate
sentence. All orders passed after a case has been
so returned are illegal. Dula Faqueer v. Bha-
GiRAT Sircar . . . 6 C. L. R. 276

Criminal Pro-

cedure Code, 1872, ss. 41, 44, 46, and 284— Cove-
nanted Magistrate of the third class on tour in Division
of a District — Suhordination to Magistrate of the
Division. A Magistrate of a Division of a District
made over, under s. 44 of Act X of 1872, a case of
theft for trial to a Magistrate of the third class, who
was on tour in his division, in the discharge of his
public duties. The latter, who had jurisdiction,
found the accused person guilty, and considering
that the accused person ought to receive more
severe punishment than he was competent to inflict,
under the provisions of s. 46 of Act X of 1872,
submitted his proceedings to the former, who there-
upon, under the provisions of the same section,
passed sentence on the accused person. Held,
that the third class Magistrate was " subordinate "
' to the Magistrate who originally made over the case
to him, within the meaning of .s. 41 of Act X of 1872,
and the procedure of the Magistrate was therefore
according to law. Field, also, that, assuming that
he was not so "subordinate," the provisions of
s. 284 of Act X of 1872 would not have been appli-
cable, as those provisions do not refer to the illega-
lity of a sentence or to the case of a Magistrate
transferring a case who has no power of transfer,
but to the invalidity of a conviction for want of
jurisdiction. Empress v. Kat.i.u

I. L. R, 4 All. 366

5. Power to annul conviction

in offence not triable by Subordinate Ma-
gistrate—Crmiiw/Z Procedure Code, 1872, s. 284.
AMiere, on appeal from a conviction by a Subor-
dinate Magistrate of an offence triable by him, the
Magistrate of the district is of opinion that the evi-
dence in the case establishes a graver offence against
the accused not triable by the Subordinate Magis-
trate -.—Held, that the Magistrate of the district has

MAGISTRATE— co)i«(Z.

6. REFERENCE BY OTHER MAGISTRATE

contd.
no power to annul the conviction and ser n
under s. 284 of the Code of Criminal Procedun b
should report the matter for the orders of tfir [i
Court. Reg. v. Tukaram Ragho . 12 Bom 15

Reference to Magisui

with power to hear appeals — Criminal
cedure Code, 1861, s. 276 — Reference of cat i
Subordinate Magistrates. Held, that a full-iw
Magistrate, though empowered to hear appes,
not thereb}'' placed in the position of the Magi-a
of the district, and that therefore Subonka
Magistrates should not refer cases, under s. S
the Code of Criminal Procedure, to such Mag; at
but to the Magistrate of th^ district, to whom oi
they are subordinate. Reg. v. Bhagu bin Spja
5 Bom. ( i
Reference to Magis at

under s. 277, Criminal Procedure <'di
1881 — Power to send to Sessions for higher seme
Where a case is referred to a Magistrate td(
a. 277 of the Code of Criminal Procedur- ti
Magistrate alone has jurisdiction, and cannoton
mit to the Sessions on the ground that he cot Jei
the sentence which he is empowered to inflic ;5 ii
sufficient. In re Bhickaree Mtjllick '
10 W. R. (1 5

8. Stibordinai'Mi

gistrate. Held, that a Subordinate Magirat
acted correctly, under s. 277 of the Code of Criina
Procedure, 1861, in referring a case, not t thi
Magistrate of the district, but to the Ass'an^
Magistrate in charge of the subdivision to whi hi
was attached. In the matter of Nidrbe TeuSEI
11 W. R. r.

Issue of rcu

lars. Circulars issued by a District Magistra; f or
bidding all the Subordinate Magistrates from •'•■^'
up cases, if they thought they should hav:
under the provisions of s. 277 of tiie *
Procedure Code, 1861, were, on reference '>;
sions Judge, annulled as beyond the comp-;
the District Magistrate, and based on a mi-
standing of s. 277. Reg. v. Guna rsm Re -

3 Bom. (.'r ^£

10. ■ ^ Power I' '!'•'•

pose of case. On reference by a District
trate, a sentence passed by a full-power M;ij
in a case submitted to him by a second clas-
dinate Magistrate, under s. 277 of the Crimin
cedure Code, 1861, annulled, as the Magi^
the district alone had power to dispose ■
under that section. Reg. v. Ktjuerio Ratt

4 Bonder.*

ANONyiMOITS

11.

. 5 Mad. A *8

CriminalPfO-

cedure Code, ss. 195, 476— Reference to " '"^«^'
Magistrate of the first class" — Sanction t/ro^
secution. A Head Assistant Magistrate san'onM
a prosecution under Criminal Procedure ( '■ "■

( 7829 )

DIGEST OF CASES.

{ 7830 )

iliHSTRATE— coH/(7.

L JIFERENCE BY OTHER MAGISTRATES—

coacld.

'jSlnthe charge of preferring a false c >mplaint,

■-r1' rwarded his pfoceedincs to the Deputy Magis-

' Miother division of the district wlio ordi-

I no jurisdiction to try offences committed

:^ion under the Head As^^istant Magis-

//, that the Deputy Magistrate had

n to try the charge. Queen- Kmprkss v.

. . . I. L. R. 16 Mad. 461

7. RE-TRIAL OF CASES.

Fresh trial after discharge

./ Procedure Code, IS H, ss. 6S and ?■.';—
of accused — Institution of fresh proceed-
Where an accused person is discharged by a
■,. .• Magistrate under s. 225 of the Code of
'. Procedure, after a preliminary enquiry, the

■ of the district may proceed against him
!i'r s. 6H of the Criminal Procedure Code.
'/■ r of the petition of Ramjai Majumdar

6 B. L. R. Ap. 67
14 W. R. Cr. 65

Orders under s.

nal Procedure Code, 1'<7J — Heari)ig by
' iqistrate alter prior dismissal. When a
'Wered Magistrate has decided a matter
;". Code of Criminal Procedure, by dismlss-
pplication after hearing the evidence
District Magistrate is not competent to
the complaint de novo. In th" mattn-
: V. Gadalo Kamar . 1 C. L. R. 89

Conviction — Off-

ii^ly triable by Court of Session — Accused,
'/, by Sessions Judge, on appeal — Re-trial,

"• — Re-trial and commitment of accused —
"( — Criminal Procedure Code {Act V of
■ir,, 103, 423 and 30— Indian Post Office
■' 189S), s. .52. Where an accused was
i'V a Magistrate of an offence exclusively
1 C'liirt of Session, and on appeal the
. I-''-. without ordering further proceedings
!. ill aside the conviction and discharged
I on the ground that the Magistrate had
tion to hold the trial, and fresh proceed-
[H'ctofthe same offence were taken by
' i^istrate against the accused, who was
i for trial to the Court of Session : — Held,
' a Sessions Judge on appeal is empower-
I the re-trial of an accused person, and

■ << 80, but merely discharges him, there is
1 law to prevent a Court of competent
n from instituting { cA\ p.oeeling;
'■ accused and committing him. Held,
It. inasmuch as s. 423 of the Criminal
'ode contemplates an f)rder for a re-trial

of competent juristliction, and the trial
■ had been set aside owing to the Magis-
.g had no jurisdiction to hold it, no trial
taken place, so that the Sessions Judge
'.lossibly have ordered a re-trial. Abdul
Emperor (1902)

I. L. R. 29 Calc. 412

MAGISTRATE— con//.

8. REVIE\^- of ORDERS.
i. Committing order, power to

cancel. Where a Deputy Magistrate has once
made an order transferring a case for trial to the
Magistrate, he has no power to cancel the order and
replace the case on his own file. Queen r. Chuxder
Seekur Roy . . . 12 W. R. Cr. 18

2. Power to vary sentence,

A Magistrate has not authority to vary any sentence
he may have once passed on a prisoner and which
has been finally recorded. Reg. v. Tookia

1 Bom. 3

3. Power to revive order

which has been quashed. On the 7th of June
18S1 the Assistant Commissioner of Hylakandi, in
Sylhet, passed an order under s. 518 of the Criminal
Procedure Code, 1872, that the manager of a certain
tea garden should discontinue holding a market on
Thursdays until further notice. On the 25th of
August 1881 the Assistant Commissioner reviewed
this order, and having come to the*conclusion that
he had no power to issue a permanent injunction,
struck the case off the tile, at the same time referring
the matter to the Deputy Commissioner. The
latter declined to interfere, informing the Assistant
Commissioner that he saw no illegality in his order.
Thereupon the Assistant Commissioner passed an
order declaring that his order of the 7th of June
1881 remained in full force. On a reference to the
High Court, made by the Oiffciating Sessions Judge
of Sylhet, under s. 297 of the Code of Criminal Pro-
cedure : — Held, that the Magistrate havmg. on the
25th of August 1881, set aside his order of the 7th
of June 18S1, and struck the case off the file, he had
no power to revive it without a^fresh procecdintf.
Bradley r. Jameson . I. L. R. 8 Calc. 580

11 C. I.. R. 414

9. SPECIAL ACTS.

1. -^ Act XIX of 1838, s. 13

(Coasting Vessels,' Bombay). Only a full-
power .Mau'istrate liad jurisdiction to convict of an
offence un.ler s. 13 of Act XIX of 1S3S. Reg. v.
Ka-samji .... 5 Bom. Or, 6

2. Act XXVI of 1850 (Towns

Improvement, Bombay)— //(/^c/i(;rt of i^naUy
for hraich of ruh uwhr. Htld. tliat a subordinate
Magistrate has no jurisdiction to impose a {K»nalty
for breach of a rule made by the Town Commi-sion-
ers under Act XXVI of 1850, s. 7, - 1. 5. \lF.r.. r .
Malh.arji bin Nauloji . 3 Bom. Cr. 36

Mu7iicipal Com-

missioners, Committee of, appointed nrid/rr. The
Managing Committee of Municipal Commissioners
appointed undo;- Act XXVI of 185 thave no power
to trv and convict pers<jns for alleged breaches of
rules'mado in pursuance of that .\ct. The power to
inflict fines for such offences is, by s. 10, vesto<l in
the Maffistrate. Reo. v. Mavji Dayal. Reg.
r. Kalid-is Keval . . .5 Bom. Cr. 10

4. ,. - - • - Criminal Pro

cedure Code. VIII of 1869— Schedule— Breach

( 7827 )

DIGEST OF CASES.

( 7828 )

MAGISTRATE— tonJ'/.

6. REFERENCE BY OTHER MAGISTRATES—

contd.
■ccdure Code, 1872, s. 46 — Power to order committal
for trial. A Mac^istrate, to whom a case is referred
for enhancement of punishment under s. 46 of the
Criminal Procedure Code, maj' order the committal
of the case for trial by the Sessions Court. In the
matter of Chinnimareigadu I. L. B. 1 Mad. 289

2. ■ Criminal Pro-

cedure Code, 1872, s. 46. A Magistrate to whom a
case is referred for enhanced punishment has no
power to send the case for enquiry to another Magis-
trate. Queen v. Velayttdum

I. L. E. 4 Mad. 233

Criminal Pro-

cedure Code, 1S72, s. 46 — Return of case referred
■under s. 46. It is not competent for a Magistrate,
to whom a case has been referred under s. 46 of the
Code of Criminal Procedure, to return the case to the
referring Magistrate, on the ground that in his
opinion the latter has power to pass an adequate
sentence. All orders passed after a ease has been
so returned are illegal. Dula Faqueer v. Bha-
GiRAT Sircar . . . 6 C. L. R. 276

4. • — Criminal Pro-
cedure Code, 1872, f<s. 41, 44, 46, and 2S4— Cove-
nanted Magistrate of the third class on tour in Division
of a District — Suhordination to Magistrate of the
Division. A Magistrate of a Division of a District
made over, under s. 44 of Act X of 1872, a case of
theft for trial to a Magistrate of the third class, who
was on tour in his division, in the discharge of his
public duties. The latter, who had jurisdiction,
found the accused person guilty, and considering
that the accused person ought to receive more
severe punishment than he was competent to inflict,
under the provisions of s. 46 of Act X of 1872,
submitted his proceedings to the former, who there-
upon, under the provisions of the same section,
passed sentence on the accused person. Held,
that the third class Magistrate was " subordinate "

■ to the Magistrate who originally made over the case
to him, within the meaning of s. 41 of Act X of 1872,
and the procedure of the Magistrate was therefore
according to law. Held, also, that, assuming that
he was not so " subordinate," the provisions of
s. 284 of Act X of 1872 would not have been appli-

■ cable, as those provisions do not refer to the illega-
lity of a sentence or to the case of a Magistrate
transferring a case who has no power of transfer,
but to the invalidity of a conviction for" want of
jurisdiclion. Empress v. K\t,i.tt

I. L. R. 4 All. 366

5. Power to annul conviction

m offence not triable by Subordinate Ma.-

g,istra,te— Criminal Procedure Code, 1872, s. 284.
Where, on appeal from a conviction by a Subor-
■ dinate Magistrate of an offence triable by him, the
Magistrate of the district is of opinion that the evi-
dence in the case establishes a graver offence against
the accused not triable by the Subordinate Magis-
trate '.—Held, that the Magistrate of the district has

MAGISTRATE— coM^fZ.

6. REFERENCE BY OTHER MAGISTRATES-
contd.

no power to annul the conviction and sentea
under s. 284 of the Code of Criminal Procedure, It
sliould report the matter for the orders of the Hh
Court. Reg. v. Tukaram Ragho . 12 Bom. 2t

6. Reference to Magistral

■with power to hear appeals — Crimiiial P-
cedure Code, 1861, s. 276 — Rpference of cases y
Subordinate Magistrates. Held, that a full-poy
Magistrate, though empowered to hear appeals.B
not thereby placed in the position of the Magistr;;
of the district, and that therefore Subordin*
Magistrates should not refer cases, under s. 276f
the Code of Criminal Procedure, to such Magistr •^j
but to the ^Magistrate of the, district, to whom aki
they are subordinate. Reg. v. Bhagu bin Shab.i
5 Bom. Cr. 1

Reference to Magistras

under s. 277, Criuiinal Procedure Coc,

1881 — Power to send to Sessions for higher senten.
Where a case is referred to a Magistrate uacr
s. 277 of the Code of Criminal Procedure, te
Magistrate alone has jurisdiction, and cannot cti-
mit to the Sessions on the ground that he oonsidls
the sentence which he is empowered to infhct.is -
sufficient. In re Bhickaree Multjck I

10 W. R. Cr. 5

Sxihordinate Jlt-

gistrate. Held, that a Subordinate Magistrffl
acted correctly, under s. 277 of the Code of Crioiid
Procedure, 1861, in referring a case, not to tj
Magistrate of the district, but to the Assistaji
Magistrate in charge of the subdivision to which?
was attached. In the matter of Nidree TELHm3
11 W. R. Cvl

9. ., Issue of cir-

lars. Circulars issued by a District Magistrate fi-
bidding all the Subordinate Magistrates from'takfe
up cases, if thej' thought they should have to_ ^
under the provisions of s. 277 of tlie Crimii^
Procedure Code, 1861, were, on reference by a Sr
sions Judge, annulled as beyond the comt)etencel
the District Magistrate, and based on a raisunda
standing of s. 277. Reg. v. Guna bin Regnak[
3 Bom. Cr. ^

10.

Power to

pose of case. On reference by a District Ma^
trate, a sentence passed by a full-power Magistra ,
in a case submitted to him by a second class SuW-
dinate Maaistrate, under a. 277 of the Criminal R-
cedure Code, 1861, annulled, as the Magistrate,
the district alone had power to dispose of ca«
under that section. Reg. v. Kuberio Ratno

4 Bom. C]8

Anonymous . . .5 Mad. Ap. J

11. Criminal !>•

cedure Code, ss. 195, 476 — Reference to " neaft
Magistrate of the first class" — Sanction to !>■
secidion. A Head Assistant Magistrate sanctin
a prosecution under Criminal Procedure Cod<-

( 7829 )

DIGEST OF CASES.

( 7830 )

AGISTRATE— co?i<(Z.

REFERENCE BY OTHER JIAGISTRATES—

condd.
5, on the charge of preferring a false c )mplaint,
d'forwarfled his proceedings to the Deputy Magis-
ite of another division of the district wlio ordi-
rily had no jurisdiction to trj' offences committed
the division under the Head Assistant Magis-
itc. Held, that the Deputy ^Magistrate had
isdiction to try the eharsze. Queen'- Empress r.
OAPPA . . . I. Ii. R. 16 Mad. 461

7. RE-TRIAL OF CASES.

L, Fresh trial after discharge

jriininal Procedure Code, IS'H, ss. 6S and •2-^5 —

charge of accused — Institution of fresh proceed-

. Where an accused person is discharged by a

puty Magistrate under s. 225 of the Code of

. minal Procedure, after a preliminary enquiry, the

,gistrate of the district may proceed against him

esh under s. 68 of the Criminal Procedure Code.

(he matttr of the petition of Ramjai Majtjmdar

6 B. L. R. Ap. 67

14 W. R. Cr. 65

i Orders under s.

,,, Criminal Procedure Code, l'<7-2 — Hearing hij
. trid Magistrate after prior dismissal. When a
'( V empowered Magistrate has decided a matter
V ers. 530, Code of Criminal Procedure, by dismiss-
i the application after hearing the evidence
( i-ed, the District Magistrate is not competent to
( attain the complaint de novo. In the mattrr
J fAMOTi V. Gadalo Kamar . 1 C. L. R. 89

. Conviction — Of/- \

*'. exclusively triable by Court of Session — Accused,
c harge of, by Sessions Judge, on appecd — Re-trial,
1 nder for — Re-trial and commitment of accused —
f. isdiction — Criminal Procedure Code (Act V of
i V), *s. :>;.;, .'OS, 423 and 30— Indian Post Office
•• (VI of IS98), s. 52. Where an accused was
c ricted by a Magistrate of an offence exclusively
t ble by a Court of Session, and on appeal the
5 lions Judge, without ordering further proceedings
te taken, set aside the conviction and discharged
t accused on the ground that the Magistrate had
B urisdiction to hold the trial, and fresh proceed-
i in respect of the same offence were taken by
• :her Magistrate against the accused, who was
« mitted for trial to the Court of Session : — Held,
t ;, where a Sessions Judge on appeal is empower-
< 0 order the re-trial of an accused person, and
t ; not do so, but merely discharges him, there is
^- iiris in law to prevent a Court of competent

ion from instituting f e^h p.o ceding;

tlie accused and committing him. HeM,
'■■-. that, inasmuch as s. 423 of the Criminal
'enure Code contemplates an order for a re-trial
P, Court of competent jurisdiction, and the trial
U lis case had been set aside owing to the Jlagis-
*' ? having had no jurisdiction to hold it, no trial
" Jn fact taken place, so that the Sessions Judge
««|1 not possiblv have ordered a re-trial. Abdul
«|ni f. Emperor (1902)

I. L. R. 29 Calc. 412

MAGISTRATE— cow<'/.

8. REVIE\^- OF ORDERS.

i. Committing order, power to

2. Power to vary sentence.

A Magistrate has not authority to vary any sentence
he may have once passed on a prisoner and which
has been finally recorded. Reg. v. Tookia

1 Bom. 3

3. Power to revive order

which has been quashed. On the 7th of June
1881 the Assistant Commissioner of Hylakandi, in
Sylhet, passed an order under s. 518 of the Criminal
Procedure Code, 1872, that the manager of a certain
tea garden should discontinue holding a market on
Thursdays until further notice. On the 25th of
August 1881 the Assistant Commissioner reviewed
this order, and having come to the 'conclusion that
he had no power to issue a permanent injunction,
sti'uck the case oS the tile, at the same time referring
the matter to the Deputy Commissioner. The
latter declined to interfere, informing the Assistant
Commissioner that he saw no illegality in his order.
Thereupon the Assistant Commissioner passed an
order declaring that his order of the 7th of June
1881 remained in full force. On a reference to the
High Court, made by the Officiatmg Sessions Judge
of Sylhet, under s. 297 of the Code of Criminal Pro-
cedure : — Held, that the Magistrate havmg, on the
25th of August 1881, set aside his order of the 7th
of June 1881, and struck the case oS the fde, he had
no power to revive it without a^fresh proceeding.
Bradley v. Jameson . I, L. R, 8 Calc. 580
.11 C. Ii. R. 414

9. SPECIAL ACTS.
1, — Act XIX of 1838, s. 13

(Coasting Vessels,^ Bombay), Only a full-
power Magistrate had jurisdiction to convict of an
offence under s. 13 of Act XIX of 1838. Reg. v.
Kasamji .... 5 Bom, Or, 6

2. Act XXVI of 1850 (Towns

Improvement, Bombay)— /«^/c^o« of penalty
for breach of rule under. Held, that a subordinate
Magistrate has no jurisdiction to impose a penalty
for breach of a rule made by the Town Commission-
ers under Act XXVI of 1850, s. 7, cl. 5. Reg. ?'.
Malharji bin Nauloji . 3 Bom, Cr. 36

3. 3Iunicijxil Com-
missioners, Committee of, appointed under. The
Managing Committee of Municipal Commissioners
appointed under Act XXVI of 185 ) have no power
to try and convict persons for alleged breaches of
rules made in pursuance of that Act, The power to
inflict fines for such offences is, by s. 10, vested in
the Magistrate. Reg. v. Mavji Dayal. Reg.
V. Kalidas Keval . . .5 Bom. Cr. 10

4. Criminal Pro

cedure Code, VIII of 1869— Scheduler— Breach

( 7831 )

DIGEST OF CASES.

7832 )

M AGISTR ATE— f o n <rf.

9. SPECIAL ACTS— contd.
Mvnicipal rules tinder Act XX VI of 1S50. By virtue
of the last part of the schedule headed " offences
against other laws " added to the Code of Criminal
Procedure by Act VIII of 1869, a Subordinate
Magistrate, second class, can take cognizance of
the offence of a breach of the Municipal rules, pro-
mulgated under Act XXVI of 1850. Reg. v. Dhar-
MAYA VALAD Sakgapa . ' . 8 Bom. Cr. 12

5. Municipal Com-
missioners, power of, to assume judicial powers —
Power to try offenders under rules made by Mtmi-
cipal Commissioners. Municipal Commissioners
appointed under Act XXVI of 1850 have not, by
that Act, conferred upon them, nor are they entitled
to assume, judicial powers with reference to breaches
of rules or bye-laws made by them under that Act ;
and such rules are ultra vires in gi%'ing them such
powers. Reg. v. Kalidas Keval, 5 Bom. Cr. 10,
approved and followed. The authority to try offen-
ders against such rules or bye-laws is vested in the
Magistrates of the country, and Subordinates as well
as other Magistrates have jurisdiction to try such
offenders. Reg. v. Dharmaya valad Sangapa, 8
Bom. Cr. 12, approved. Reg. v. Yenkit Bapttjt

8 Bom. Cr. 39

6. Act XXXV of 1850 (Bom-

bay Terries), ss. 9 and. 16. A conviction by a
full power Magistrate under s. 9 of the Bombay
Ferries Act annulled for want of jurisdiction, as the
Magistrate of the zillah alone was empowered by
s. 16 summarily to hear and determine all offences
against the Act. Reg. v. Peabhakar N. Soman

3 Bom. Cr. 11

7. Act XXII of 1855 (Ports

and Port Dues), ss. 46 and Q'^— Magistrate.
The word ' ' Magistrate "in s. 62 of Act XXII of
18-55 includes a Subordinate Magistrate ; such
Magistrate has therefore power to try the master
of a vessel for an offence committed against s. 46 of
that Act. Reg. v. Tunga Tttka 5 Bom. Cr. 14

8. Act I of 1858 (Compulsory

Labour, Madras), ss. 1 and 6 — Acts and omis-
sions. The only acts or omissions over which a Ma-
gistrate has jurisdiction under Act 1 of 1858 are
those specified in the 1st section. Cases under s. 6
of the Act are not cognizable by a Magistrate.
Anonymous ... 4 Mad."Ap. 21

9. Beng. Act III of 1863

(Transport of Native Labourers)— Pe?iaZ
Code, ss. 65 and 67. Held, that a Subordinate
Magistrate of the first class has power to deal with
the case of an offence provided for by a special law
(in this case Bengal Act III of 1863) when the
punishment awardable is six months' imprison-
ment, fine, and fine only, s. 67. and not s. 65, of
the Penal Code being applicable to such a case.
Queen v. Chunder Peosaud Singh

10 W. R. Cr. 30

10. Bom. Act IX of 1863

(Cotton Frauds), s. 9. Conviction under s. 9 of

MAGISTRATE— coftirf.

9. SPECIAL ACTS— cowW.
Bombay Act IX of 1863, and sentences olon
month's rigorous imprisonment, as well as an rde
for confiscation of cotton, set aside for wa: o
evidence to show that the Deputy Magistrativh'
tried the case had jurisdiction in the matter .vc
the person convicted, and for want of eviden; ot
fraud. Reg. v. Jivan Usman . 3 Bom. C 12

11.

Bom. Act VIII of m

(Poisonous Drugs), s. 11. Convictions Ho
s. 11 of Bombay Act VIII of 1866 (Poisonou-^
Act) can only be obtained outside the toi>
island of Bombay before Magistrates of th
class. Empress v. Imambu I. L. R. 4 Bom Lb';

12. Bom. Act V of 1879 (Bo. )a3

Land Revenue Act) — Magistrate of first '
and second class — Rules made under s. 214,
Act V of 1S79 {Bombay Land Revenue Act)-
Act X of 1866, s. 1, cl. 7— Removal of ear
Government land. The offence committed in
vention of rule 3, cl. 1, item [d) of the rule>
under s. 214 of the Land Revenue Code (l;
Act V of 1879) is exclusively triable by a
trate of the first class. Accordingly, a con.
and sentence by a Magistrate of the seconala.s
were set aside by the High Court. -Q-ex
Empress v. Shivaram . I. L. R. 8 Bom59]

13. ss. 125, 214, and2K

-Rules 101 and 111, I.
was charged before a -

— Boundary -marks—
{a). The accused

class Magistrate with digging earth within a
of two cubits of earthen boundary-mark, in ci...
vention of rule 101 of the Rules made by Gcprn
ment under s. 214 (g) of the Bombay Land Re^nm
Code (Act V of 1879). The Magistrate con ' ■
the accused under rule 111, cl. 3 (a), and sen'
him to a fine of one rupee : — Held, that the. t
tion and sentence were illegal. S. 125 of t!)'
Revenue Code does not give jurisdiction t
Magistrate to try a person accused of inji:
boundary-mark. Queen-Empress v. Irappa

I. L. R. 13 Boii29]

14. Bom. Reg. XXI of 1»7-

Offence against opium laws — Power of /tne.| l'h«
District Magistrate (whose Court is the proper'-? 1>«
nal for the trial of an offence relating to the
gling of opium) has, under s. 21 of the C'
Criminal Procedure, power to inflict any fin
vided by Regulation XXI of 1827 for such o
even though the fine may exceed Rl,000. i-
Naeayan Gang ARAM . . .9 Bon

15.

Illegal

sion of opium. The offence of possession a^ve t
quarter of a Surat ser of opium not shown \'
been legally obtained is exclusively cogniz:
the District Magistrate. Reg. v. Narayan
Criminal Reference No. 209 of 1869, ove If.i
Reg. v. Hira Jiva . . .7 Bom. ('• 59

16.

s. 7— Offence against opiriyi'iva

The offence of unlawfully being in posses^n o
smuggled opium is an offence exclusively cog''-^»»

( 7833 )

DIGEST OF CASES.

( 7834 )

^GISTR A.T'E—con.td.

9. SPECIAL ACTS—contil.
a Magistrate of a district or of a division of a
trict, as representing the Zillah Magistrate refer-
to in Regulation XXI of 1827, s. 7. No other
sistrate or Court has now jurisdiction to hold a
Hminary enquiry into, or to try a person accused
such an offence. Reg. v. Him Jiv.i, 7 Bom.
. .59, approved ; and the Court's reply No. 1231
19th August 1867, to the Khandesh Sessions
ilge's reference No 702 of 1867, dissented from.
0 V. Lakhu valad Sakru . 8 Bom. Cr. 118

Jut 526 Reg. v. Sadu Dadabhai & Bom. 1-66

7. s. 10 — Breach of rules for sale

i ipiiim. A conviction and seatence by a full
\ ;T Magistrate for breach of the rules for the
; lil sale of opium under Rsgulation XXI of

7 (Bombay), s. 10, annulled for want of juris-
i.:ion, as the Zillah Magistrate alone was em-
■ rered to enforce the penalty. Reg. v. Sadtj
'.adPavadi ..." 3Bom. Cr. 39

lEo. V. G.ANIA RiN Bapu . 3 Bom. Cr. 50

8. Cattle Trespass Act, III

1857, s. 13— .4(< X VII of 1S62. The repealing
tion of Act XVII of 1862 did not affect the
cers of a Subordinate Magistrate under s. 13 of

-I III of 1857. Reg. v. Kassamia 1 Bom. 1 00

9. Act XVII of

■2. The latter portion of s. 13 of Act III of
)7 having been repealed by Act XVII of 1862 :

\1tld, that the offences created by that section
;ht be dealt with by the ordinary criminal
bunals, subject to the provisions of the Code of

• minal Procedure. Reg. v. Mathur Pursuotam
4 Bom. Cr. 13

MAGISTRATE— co/i^rf.

JO.

Magistrat

mot, under s. 13, Act III of 1857, punish ex-
it for an act of forcible opposition to the seizure
cattle damage feasant. Hills v. Srbehctree
7 W.^R. 155

51. s. 18 — Criminal Procedure Code,

''7, s. 21. By virtue of s. 21 of the Criminal

:)cedure Code, a subordinate Magistrate of the

t class had jurisdiction to try an offence under

•i Act III of 1857 (Cattle Trespass Act),

'ling no provision in that Act as to the

lies by which offences committed under

to be tried. Reg. v. Ganga ko:m Mhasu

5 Bom.^Cr. 13

ia. Cattle Trespass Act (I of

jTl), SB. 20 and 23 — Special jurisdiction —

mind Procedure Code, 1SS2, ss. 1 and 192 —

iiw/er of criminal case. The jurisdiction con-
jred by ss. 20 to 23 of the Cattle Trespass Act

)f 1871) is a special jurisdiction, and, as such, it is
■jler 3. 1 of the Criminal Procedure Code (Act X of
112) unaffected by its provisions ; and therefore
*|-92 does not authorize the transfer of a case to

..ch 33. 20 to 23 of the Cattle Trespass Act apply.
^•\ma v. Lechhu Shekh . I. Ij. R. 23 Calc. 300

23.

9. SPECIAL ACTS— conii.
- Order

Magistrate other than the Ma/istrates specified in
s. 20— Criminal Procedure Code, 1882, ss. 28, 192,
■529, and 537 — Power of District Magistraie to
transfer cases to a Subordinate Magistrate — Com-
pensation, order awarding. S. 192 of the Criminal
Procedure Code (Act X of 1882) does not authorize
a District Magistrate to transfer for trial to a
Subordinate Magistrate cases which are nit within
the powers of that Magistrate to try either under
s. 28 of the Code or under some special or local law.
A District Magistrate cannot transfer to any Magis-
trate cases under s. 2 of the Cattle Trespass Act
(I of 1871) which are triable only by the two classes
of Magistrates specified in that section. An order
awardi ig compensation under s. 22 of the Act passed
by any other Magistrate is illegal, and cannot be
cured by the provisions of s. 529 or s. 537 of the
Criminal Procedure Code. Raghu Sixgh v. Abdth.
Wahab . . . I. L. R. 23 Calc. 442

24.

Chowkidars — Maintenance

of chowkidar on chakran land. A Magistrate can
maintain a chowkidar in the possession of his
chakran land (i.e., land set apart for his subsistence
by his zamindar). Any such order of the Magistrate
is appealable to the Superintendent of Poliee.
Queen v. Zamindar of Colgong 1 W. R. Cr. 12

25. -Companies Act (VI of 1882),

ss. 35, 252—'' Forfeit" — ''Penalty''- — Shire
warrant not duly stamped — Stamps on share war-
rants— Criminal Procedure Code (Act X of 1SS2),
s. 32 — Fine. There is no distinction between the
word ■• forfeit " as used in s. 35 of the Indian Com-
panies Act and the word ' ' penalty ' ' as used i n
other sections of the Act, and the omission to duly
stamp a share warrant under that section is an
offence under the Act punishable by a penalty, to
enforce the payment of which a Magistrate has
jurisdiction under s. 252. In a case under s. 35 a
Magistrate has no option but to inflict the full fine
of R500 if the offence be proved. Where a person
was charged, as being the principal officer of a
company, with having issued nine share warrants
not duly stamped in respect of which the penalties
claimed under s. 35 amounted to R 4,500 and where
it was contended that the infliction of such a penalty
was beyond the jurisdiction of the IMagistrate,
which under the provisions of s. 32 of the Code of
Criminal Procedure was limited to inflicting a fine
of R 1,000 -.—Held, that the issue of each of the nine
share warrants was a separate offence, and the fact
that several offences have been committed, and
therefore that the Magistrate's power to fine would
extend to more than R 1,000, was not affected by
that section of the Code. Qpeex-Empress v.
Moore . . . I. L. R. 20 Calc. 676

Illegal oon^rxemeat— Deputy

Magistrate, pywer of. The offence of illegal con-

26.

Magistrate, power of. ±ue oiieuue ui iiic;j<u v,«ju-
fine:nent for more tha i ten days is triabb only by
the Court of Session or by the Magistrate of the dis-

( 7835 )

DIGEST OF CASES.

( 7836 )

MAGISTRATE— cow^c?.

9. SPECIAL ACTS— conW.
trict, but not by a Deputy Magistrate. Queen v.
KoMUL Manjee"^ . . . 7 W. R. Cr. 13

27. Madras Abkari Act —

Mad. Act I of 1886, s. 4:3— Default by persons
bailed to appear before the Abkari Inspector — Pro-
cedure— Criminal Procedure Code, 1882, s. 514.
8. 43 of the Madras Abkari Act gives a Magistrate
enforcing a penalty on the application of an abkari
inspector jurisdiction to proceed in the same
manner and with the same powers as if the de-
fault had been made by a person bailed to appear in
his own Court. When an abkari inspector therefore,
under the Abkari Act, s. 43, foiwards a bail bond to
a Magistrate in order that payment may be com-
pelled qf the penalty mentioned therein, the Magis-
trate should call upon the person liable to appear
and show cause against such order being made, and
should otherwise observe the procedure prescribed in
Criminal Procedure Code, s. 514. Queen-Empress
V. Palayathan . . I. L. R. 18 Mad. 48

28.

Mad. Act III of 1865

(offences against special and local laws)—
Ofjences under Act XIII of 1869. Madras Act III
of 1865 authorizes every Magistrate to take cogni-
zance of offences against Act XIII of 1859.
Anonymous .... 4 Mad. Ap. 64
29. Criminal Pro-
cedure Code, 1869— Schedule— Mad. Act III of
1865. The jurisdiction conferred on Magistrates in
the Madras Presidency by Madras Act III of 1865
is not ousted by the schedule to the Code of Criminal
Procedure as amended by Act VIII of 1869.
Anonymous .... 7 Mad. Ap. 6

• 30. - — Native Depidy

Magistrate— Madras Police Act {XXIV of 1859),
s. 50. By Madras Act III of 1865 a Native Deputy
Magistrate has power to try police officers above
the rank of a private charged with offences under
the Madras General Police Act (XXIV of 1859),
notwithstanding the proviso ins. 50 of the latter
enactment. Anonymous . 4 Mad. Ap. 54

31.

Repeal of Act

XVI of 1874— Repeal, effect of. The repeal of
Madras Act III of 1865 by Act XVI of 1874 has not
deprived Magistrates in the Madras Presidency of
jurisdiction over ofTences created by special and
local laws thereby given to them. Reg. v. Kanda-
KORA . . . . I. L. R. 1 Mad. 223
32. Criminal Pro-
cedure Code, 1872, s. 8— Act XVI of 1874— Special
and, local laws. Madras Act III of 1865 declared
every Magistrate in the Madras Presidency autho-
rized to take cognizance of every offence committed
against any special or local law then in force in the
said Presidency, notwithstanding any provision to
the contrary in any act or Regulation then existing,
and also of any offence against any special or
local law which might thereafter be passed, unless
such law should make the offences to which it might
refer punishable by some other authorities therein

M A GISTR ATE— con^cZ.

9. SPECIAL ACTS-<ontd.
specially mentioned. The effect of this Act weix.
remove the restrictions imposed by special or I:a]
laws theretofore passed, and to enable Magisti:es
within the limits of their ordinary powers to a
with offences punishable under any such speciioi
local law, notwithstanding the special or locahw
indicated a particular tribunal as alone compent
to try such offences, and to confer upon t;m
jurisdiction also in the case of any special or I^al
laws that might be passed after the enactmeriOf
Act III of 1865, unless jurisdiction was in any :ch
later law specially conferred upon some oer
authority. S. 8 of the subsequent enactmit,
Act X of 1872 (the Criminal Procedure Co),
limited the jurisdiction of Subordinate Magist ves
over offences punishable under special and local l./s,
a third class Magistrate's jurisdiction being restriod
to the trial of offences punishable under such I.vs
with less than one year's imprisonment, whi a
second class Magistrate's jurisdiction was simiMy
restricted to the trial of offences punishable with )ss
than three years' imprisonment. Act XVI of 1'4,
while repealing Act III of 1865, left unaffeed
the jurisdiction of the Subordinate Magistrate u ler
that Act so far as it still remained in existenca.s
limited by the provisions of p. 8 of Act X of .12
(Criminal Procedure Code). Empress v. Achi

I. L. R. 2 Mad.6I

33. Mad. Reg. XI of 1816, s. ]-

Village Magistrate — Fine for abusive language. A
Village Magistrate has no jurisdiction to im)se
a fine upon a person who uses abusive langge
to the village Magistrate in the course of a ial
under s. 10, Regulation XI of 1816. Anonyaus
5 Mad. Ap32

34. - Mad. Reg. IV of 185-

Village Magistrate — Sheep- stealing — Mad. Eeg.XI
of IS 16. Sheep stealing, when the value of he .
sheep is less than a rupee, is cognizable by a Vilga
Magistrate under Regulation IV of 1821 as a pty
theft ; but a sentence" of fine by a Village Magist-te
in such cases is illegal. Queen v. Boya Lingai
I. L. R. 5 Mad. ?»

35. Merchant Seaman's est-

(I of 1859), s. 83— European British subjt-
Criminnl Procedure Code, 1872, s. 72. A Mf8-
trate is not empowered to try a European Brbh
subject under cl. 5, s. 83 of Act I of 1859. h
Merchant Shipping Act). See s. 72 of the CrioW
Procedure Code, 1872. Anonymous I

4 Mad, Ap3S-

Anonymous . . . .7 Mad. Ap?2

36. N.-W. P. & Oude Murjri-

palities Act (XV 1883), s. 46- Issue of didss
warrant for recovery of alleged arrears of Munic'Ol
tax — Questions as to arrears being due. Held, »*
where a Magistrate, acting under s. 46 of c*
XV of 1883, issues a warrant for the reaIizatioK»*
arrears of municipal taxes alleged to be due,n©
Magistrate is acting in a ministerial capacity |ly'

( 7837 )

DIGEST OF CASES.

( 7838 )

[AGISTRATE— co7«ifZ.

9. SPECIAL ACTS— contd.
nd has no jurisdiction to eiKjuire as to whether
,ich arrears are really due or not. Ellis v.
duNiciPAL Board of Mussoorie

I. Ii. R. 22 All. Ill

37. _^ Opium Act (I of 1878),

,Q— Criminal Procedure Code (1882), s. 29—
'onimiiment by Magistrate to Court of Session of
ise exclusively triable by Magistrate. Held, that
lasmueh as a conviction of an offence punishable
nder Act I of 1878 must be by a Magistrate, a
lagistrate taking cognizance of such an offence has
0 power to commit to the Court of Session. In
iiemattter of IndrobeeThaba, 1 W. B. Cr. 5, and
'</. y.Donoglme, 5 3Iad. 277, referred to. Queex-
JIPRESS V. SCHADE . I. L. E. 19 All. 465

38. . Penal Code, s, 174:— Offence

1. contempt of Court. A Magistrate can take cog-
izance of an offence under s. 174, Penal Code,

'oraniitted asrainst his own court. Queen v. Gugun
[issER "'. . . . 8 W. R. Cr. 61

39. s. 213 — Subordinate Magistrate

-Illegal gratification. A Subordinate Magistrate
if the second class is not competent to initiate

charge, under s. 213 of the Penal Code, of accept-
ig an illegal gratification to screen an offender.
iMRiT Ram v. Nonao Ram] . 6 W. R. Cr. 90

40. S. 392— Bobbenj — Dejndy Magif-

'ate. poiver of. A charge of robbery, under s. 392
f the Penal Code, is, under Act VIII of 1866,
friable only by the Court of Session or by the
|lagistrate of 'the district, but not by a Deputy
'.lagistrate. Madhub Ghose v. Buliye Metea
7W. R.Cr. 11

41. s. 458 — Deputy Magistrate,

ower of. A Deputy Magistrate has no jurisdiction
n the case of an offence coming under s. 458 of the
•enal Code. Queen v. Shadry 1 "W. R. Cr. 34

, 42. ss. 380, 458, 459— Lurking

[ouse-lrespass by night ivith aggravating circum-
'ances. A Deputy Magistrate has no power to
jonvict of theft (s. 380, Penal Code), where the
ffence charged is lurking house-trespass by night
■ith aggravating circumstances (ss. 458 and 450,
I 'enal Code), but must commit on the latter
harge, Puran Telee v. Bhuttoo Dome

9 W. R Cr. 5

s. 471 — Forged documeni-

Wer to commit for forgery produced before the
/Elector. Where a forged document is put in
vidence', before the Coliector, the power of com-
fliitment rests with the revenue authorities, and
Joes not under any circumstances extend to the
[agistrate. Governmext v. Huxgessur Seix
1 1 Ind. Jur. O. S. 11

' 44. s. 486 — Possession — Goods ivith

[y^tnterfeit trade 7)iark not intended to be sold

''>■>'>, jurisdiction. A Magistrate has jurisdiction

. an offence under s. 486 of the Penal Code

accused be shown to be in possession of goods

MAGISTRATE— con^d

9. SPECIAL A(JTS— contd.
with a counterfeit trade mark for sale or any
purpose of trade or manufacture, though the sale
or the trade or the manufacture for the purpose-
of which the accused has the goods in his possessioft
be not intended to take place within the jurisdiction
of the Court in which the complaint is lodged.
YrsuF Mahomed Abaruth )•. Baxsidhur Siraogi
I. L. R. 25 Cale. 639

2 C. W. N. 450

45. s, 509- -Making indecent

gestures to annoy. Offences coming under s. 509
of the Penal Code are triable by the Magistrate
of the district only. Kulree v. Jhoonoo

7 W. R. Cr. 52

46. Police Act (V of 1861)—

Criminal Procedure Code, 1861, s. 133— Offence
under local Act. A Magistrate is competent, under-
s. 133 of the Code of Criminal Procedure, to direct
an enquiry to be made by a police officer into an
offence punishable under a local Act such as the
Police Act. QuEEX v. Praxkisto Pat,

14 W. R. Cr. 41

47. s. 29 — Deputy Magistrate —

Power of fine. A Deputy Magistrate exercising
the full powers of a Magistrate has jurisdiction
under s. 29, Act V of 1861, to fine police officers
s
4 W. R. Cr. 2

for violation of duty. Anoxymous

48.

Magistrate

Sessions Judge. A Magistrate only, and not a Ses-
sions Judge, has power to try cases under s. 20, Act

V of 1861. IXDROBEE THABA V. QuEEN

1 W, R. Cr. 5

49. Post Office Act (XIV of

1866), s. 47 — Subordinate Magistrate. A Subordi-
nate Magistrate has jurisdiction to try a prisoner
for an offence under s. 47 of the Indian Post Office
(Act XIV of 1866). Reg. v. Vithu bix Malltj

5 Bom. Cr. 36

50.

PostOffice Acts (XVII of

1854 and XIV of 1866), s. 4Q— Magistrate, ohli
gation of, to commit. On a reference by a Sessions
Judge in reviewing the monthly magisterial returns :
— Held, that a conviction and sentence recorded by a
Magistrate imders. 50 of Act XVII of 1854 (corres-
ponding with s. 48 of the Act of 1866) were illegal,
as the Magistrate had no jurisdiction finally to dis-
pose of the case, but was bound to commit it for
trial before the Court of Sessions. Reg. v. Atma-
RAM VAMAN Bhandarkar . 3 Bom. Cr. 8

51. Railways Act (XVIII of

1854, ss. 17, 35)— Bom. Reg. XII of 1S27, ss. I, 41.
Bv s. 35 of the Railways Act, district police officers
in the Presidency of Bombay could puni.sh, to the
extent of the ]»wcr conferred upon them in petty
offences, any offence made punishable under the Act
by fine not'excoeding R21. But s. 5, Regulation
XII of 1827 (authorizing the appointment of district
police officers), and s. 41 of the same Regulation

( 7839 )

DIGEST OF CASES.

( 7840 )

"MAGISTRATE— coH<(Z.

9. SPECIAL ACTS—<:ontd.

■ detining the limits of their jurisdiction), being both
repealed by Act XVII of 1862 -.—Held, that a
Subordinate Magistrate had no jurisdiction to
impose a fine under s. 17 of the Railways Act. Reg.

V. Tribhuvan Ishwar . . 3 Bom. Cr. 54

52. s. 26^Mad. Act III of 1865.

Magistrates of all grades are, under Madras
Act III of 1865, competent to try persons charged
with offences ixnder s. 26 of the Railways Act,
XVIII of 1854. Anonymous . 4 Mad. Ap. 9
Akonymous ... 6 Mad. Ap.. 41

The schedule to the Criminal Procedure Code,
1869, made no alteration in this respect. Anony-
MOTJS 7 Mad. Ap. 8

53. ^ Conviction by

full-power Magistrate. Held, that a conviction by a
Magistrate with full powers under s. 26 of the Rail-
ways Act was illegal for want of jurisdiction. Reg.
V. Lakshman Balaji . . 3 Bom. Cr. 10

54. Railways Act (IX of 1890),

s, 125 — Permitting cattle to stray upon a railway —
Discretion of Magistrate. When the owner of
cattle, which have been allowed to stray upon a rail-
way, is prosecuted under the Railways Act, 1890,
s. 125, cl. 1, the Magistrate is bound to ascertain
whether the person charged was himself guilty.
Queen-Empress v. Andi I. L. R. 18 Mad. 228

55. Registration Act, 1866,
ss. 91 and 95 — Committal to Sessions Judge. Held.
that the committal of the accused to the Court of
Session by a Magistrate for trial on a charge under
s. 91 of the Registration Act (XX of 1866) was
legal as being within the powers of the Magistrate.
The Sessions Court was accordingly directed to try
the accused. Reg. v. Ravxojirav bin Hanmast-
trav . . . . 5 Bom. Cr. 7

56. (Registration Act, 1877,

s. 83^ — Criminal Procedure Code, s. 29 — Jurisdic-
tion of second class Magistrate. S. 29 of the Code
of Criminal Procedure, 1882, does not affect the
jurisdiction given to a second class Magistrate by
s. 83 of the Registration Act, 1877, as amended
by Act XII of 1879. Queen-Empress v. Krishna

I. L. R. 7 Mad. 347

57.

Salt laws — Criminal Proce-

dure Code, JS61, s. 21 — Cases under local laws.
A Magistrate is bound, with reference to s. 21 of
tlie Code of Criminal Procedure, to proceed in the
investigation of cases arising under a special law
(such as the Salt Law), according to all the provi-
sions of the Code of Criminal Procedure. Queen v.
Abdool Azeez Khan . . 14 "W. R. Cr. 36

58. Stamp Act, 1869, s. 43—

Magistrate authorized by Collector to prosecute. A
Magistrate, who has been authorized by the Collec-
tor of a district under s. 43 of the Stamp Act,
to prosecute offenders against the stamp laws, is not
competent also to try persons whom he prosecutes.
The Collector should appoint some person other than

M AGISTR ATE —contd.

9. SPECIAL ACTS— concM.
a Magistrate to conduct the pros cutions. Empb s
V. GANaADHUR Bhunjo . I. Ij. R. 3 Calc. G'J
2 C. li. R. :9

59. Whipping — Second class Ma_i.

irate — Sentence of whipping — Codes of Crimii
Procedure (Act X of 1872 and Act X of 188,
ss. 2 an I 32. A person appointed a Magistrate I
the second class under Act X of 1872 is incom)-
tent, since the coming into force of Act X of 18!,
to piss a sentence of whipping, unless he is 3[-
ciiUy empowered so to do according to the pr.
visions of s. 32 of the latter Act. Empress.
Bhagvanta Ravji . I. L. R. 7 Bom. Z\

60. Witness — Money depositedia

expenses of '/witness, order as to — Order to a it
money deposited under Criminal Procedure Ca,
1861, s. 228, to Government. A Magistrate has o
jurisdiction to order a sum of money, deposid
under s. 228 of the Code of Criminal Procedure, r
the refund of which an application was made, tc'f
credited to Government. Anonymous

6 Mad. AiO

10. TRANSFER OF MAGISTRATE DURIG
TRIAL. • I

1. Summary jurisdictioi-

Transfer — Criminal Procedure Code, ss. 56 a-nd '2
— Furlough. The petitioner had been convicted 7
Mr. C, the Assistant Commissioner of Kamroop,Q
the exercise of a summary jurisdiction, under s. :2
of Act X of 1 872. This officer was, in the year 18 ,
in charge of the Jorehaut Division in the Distvt
of Seebsaugor, ' ' with first-class powers and pow8
under s. 222 ' ' of the Act. In 1874 he proceededn
furlough to England, and, on his return in 1875, is
posted to the district of Kamroop, and invested wh
the powers of a Magistrate of the first class : — Hi,
that s. 56 of Act X of 1859 did not apply, and Ut
Mr. C had no summary jurisdiction in Kamroop ; t
Markby, </., on the ground that, by the termso
which the Government had conferred that jurisc-
tion on Mr. C, it had in effect "■ directed," within ie
meaning of s. 56 of Act X of 1872, that he should »l>
exercise that jurisdiction anywhere butinS^**
saugor ; per Mitter, J., on the ground that|ie
office to which Mr. G was appointed in Kamnp
was not equal to, or higher than, that which he W
held in Seebsaugor. Qucere : per Markby, JI-
Whether the posting of Mr. C to Kamroop, aja
his return from furlough, was a transfer
Seebsaugor within the meaning of s. 56 of Acp
of 1872. In the matt''r of Pursooram Borooj
I. L. R. 2 Calc. 117 : 25 W. R. Or.

2. Jurisdiction to complj

trial — Transfer of Magistrate while trying a*
Mr. M was appointed by the Local Governm^
under s. 37 of Act X of" 1872, a Magistrate of ^0
first class, under the designation of Joint Ma^
trate, in the district of Meerut. He was subsequ*-
ly appointed to officiate as Magistrate of the distpt

( 7841 )

DIGEST OF CASES.

( 7842 )

MAGISTRATE— confrf.

10. TRANSFER OF MAGISTRATE] DURING

TRIAL— con<i.
of Meenit during the absence of Mr. F or until
I further orders. While so offic'ating, he was appoint-
ed by a Government notification, dated the 10th
July 1880, to officiate as Magistrate and Collector of
Goraklipur, " on being relieved by Mr. F.'' He was
relieved by Mr. F in the forenoon of the 23rd July
1880 ; and in the afternoon of that day, under the
verbal order of Mr. F, he proceeded to complete a
criminal case which he had commenced to try while
oflBciating as Magistrate of the district of Meerut.
All the evidence in this case had been recorded, and
it only remained to pass judgment. Mr. M accord-
ingly passed judgment in this case and sentenced
the accused persons to various terms of imprison-
nent. Held (Spankie, J., dissenting), that Mr. M
retained his jurisdiction in the district of Meerut
. so long as he stood appointed by the Government
. to that district and no longer, and the effect of the
order of the 10th July 1880 was to transfer him
\ from the district of Meerut from the moment he was
reheved by Mr. F of the office of the Magistrate of
1 that district, and from that moment he no longer
stood appointed to that district and could exercise no
jurisdiction therein as a Magistrate of the first class :
and that therefore the conviction of such accused
persons had been properly quashed on the ground
that Mr. M had no jurisdiction. Empress of India
!i'. Anand Sarup . . I. li. R. 3 All. 563

3. Order passed by a Magis-
trate after his successor had entered upon
his appointment — Criminal Procedure Code,
18S2, 1. 12. By an order of the Local Government
Babu Dila Ram, a Magistrate exercising jurisdiction
'in the Meerut district, was transferred from that dis-
trict " on the arrival of Kunwar Kamta Prasad."
Held, by Banerji, J., that the effect of the order
transfer so expressed was that Babu Dila Ram
.'easedto have jurisdiction as a Magistrate within
l;he Meerut district from the time when Kunwar
'Kamta Prasad commenced work as a Magistrate in
•hat district. Held by Aikmax, J., that the effect
if the said order was that Babu Dila Ram ceased
'0 have jurisdiction on the arrival of Kunwar
'Vamta Prasad ; but whether such arrival was his
■rrival within the limits of the district or at head-
ijuarters was not clear from the order. Empress
1/ India V. Anand Sarup, I. L. R. 3 All. 513,
eferredto. Balwant v. Kishex

I. L. R. 19 All. 114

4. .Change of powers of Magis-

, rate while case is ^^voceedin.^— Notification
'kiiuj effect retrospectively. On the 22nd of May
878 a Deputy Magistrate, invested with third class
owers only, sentenced an accused person to three
|ionths' imprisonment under s. 417 of the Penal
ode, thus exercising second class powers. On ap-
Bal the Magistrate, on the 18th June, annulled the
jmtence and directed a new trial under s. 284 of the
I ode of Criminal Procedure. On the 26th of June
|ie Government issued a notification, investing the

VOL. III.

MAGISTRATE

lid.

10. TRANSFER OF MAGISTRATE DURING

TRIAL— conW.
Deputy Magistrate with second class powers, to take
efiect from the 25th of March to the 31st of May
1878. Held, that the notification did not render the
Magistrate's order illegal, as the Deputy Magistrate
had no jurisdiction to exercise second class powers
on the 22nd of May. In the matter of Surgee

3 C. L. R. 281

5. Appointment of Magistrate

— Timejrom which order of appoint mud dates. An
Assistant Magistrate convicted an accused on the
12th August, and by an order of even date such
Magistrate was invested with power to act as a
Magistrate of the first class, although the fact that
he had been so invested with full powers was not
communicated to him until the 23rd idem. The
accused appealed to the District Magistrate and was
acquitted. On motion made to the High Court to
set aside the acquittal, on the ground that, after the
date of the order of the Lieutenant-Governor in-
vesting the Assistant Magistrate with further
powers, no appeal lay to the District Magistrate.
Held, that, even supposing the Lieutenant-Gover-
nor's order conferred first class powers upon the
Assistant Magistrate from the moment it was made,
it must be shown, before the District Magistrate's
decision could be set aside, that the order of the
Lieutenant-Governor was signed before the convic-
tion. Quaere : Whether an order investing a Magis-
trate with first class powers is of any force, or
amounts to an authority to exercise such powers,
until the order has been officially communicated
to the Magistrate. In the matter of the petition
of Mahomed Eshak. Chundro Marwaki v.
Mohamed Eshak . . I. L. R. 6 Gale. 476

See Empress of India v. Anand Sartp

I. L. R. 3 All. 563

Transfer of a Sub-Regis-

trar invested with powers of a Special
Magistrate — Criminal Froadure Ctxte, •>■. 40 —
Madnus Police Act (A'A'/T of lS5i)), s. 48. A Sub-
Registrar, having been invested with magisterial
powers with reference to offences under Act XXIV
of 1859, was transferred from the place where he was
officiating at the time he was so invested to another
place, and there took on to his file and tried certain
cases of otiences under that Act. The District
Magistrate having reported the cases for the orders
of the High Court, the Court declined to quash his
proceedings. Queen- Empress v. Virann a

I. li. R. 15 Mad. 132

7. Head Assistant Magistrate

appointed Deputy Magistrate in same
distvict— Criminal Procedure Code, 1SS2, s. 3'tO
— Part-heard case. A Head Assistant Magistrate,,
during the pendency of a criminal case of which
the trial was almost finished, was appointed to the
office of Deputy Magistrate in another part of the
same district. The case was transferred by an order
of the District Magistrate to the file of the Deputy
Magistrate. Hdd, that the Deputy Magistrate

11 R

( 7843 )

DIGEST OF CASES.

{ 7844 )

MAGISTRATE— cj«/ /.

10. TRANSFER OF MAGISTRATE DURING
TRIAL— cowcW.

could proceed with the trial from the point at which
he had arrived as Head Assistant Magistrate.
Ouefjn-Empress v. Ahobalamatam .Ieer

I. L. R. 22 Mad. 47

11. WITHDRAWAL OF CASES.
Withdrawal of case for

trial -Criminal Procedure Code, lS7l', ss. 46, 47,
:)2S, 329. The provisions of Act X of 1872, s. 328,
only apply when a Magistrate, after hearing part of
the evidence in a case, ceases to exercise jurisdic- ,
tion, and is succeeded by another, who has, and 1
exercises, jurisdiction in such case. So s. .'{29 only !
applies to " enquiries " under Ch. XV, and only >
when the Magistrate is " unable " to complete the 1
enquiry himself. But when a case under trial is ,
removed under s. 47, the whole proceedings must
commence (Ze ?«oi;o in the manner provided for in \
s. 4o. QtJEEN V. Khan Mahomed i

24 W. B. Cr. 53

2. Power to withdraw case

—Criminal Procedure Code, 1872, s. 47. Magis- \
trates of districts should exercise the powers con-
ferred on them by s. 47 of Act X of 1S72 only when
it is absolutely necessary for the interests of justice
that they should do so ; ar.d when one of the parties
to a case applies to have it withdrawn from the
Magistrate enquiring into or trying it and referred to
another Magistrate, the Magistrate of the district
should give the other party notice of such applica-
tion and an opportunity of showing cause why such
application should not be granted. Where the ac-
cused in a criminal case applied to the Magistrate of
the district, after the evidence of the complainant
and his witnesses had been taken, to v/ithdraw such
rase from the Subordinate Magistrate trying it and
to try it himself, such application not containing
any sufficient reason justifying the granting of the
same, and the Magistrate of the district, without
giving the complainant notice of such application
or opportunity of showing cause against it, and
without stating any reason, withdrew such case
from the Subordinate Magistrate trying it and re-
ferred it to another for trial, the High Court set
aside the order of the District Magistrate and of the
Magistrate to whom such case was referred for trial,
and directed the Magistrate from whom it had been
withdrawn to proceed with it. In the mathr of thz
petition of Umrao Singh v. Fakir Chand

I. L. R. 3 All. 749

Criminal Pro-

MAGISTRATE— co?ic:(Z.

11. WITHDRAWAL OF CASES— concid.

4. Transfer of criminal cas

—Crimirtal Procedure Code {Act X of ISS2), ss. 1
5 28. A Magistrate who is subordinate to a Su
divisional Magistrate is also subordinate to tl
District Magistrate within the meaning of Crimin
Procedure Code, s. 528. Neither s. 17 of the Gof
nor sch. Ill can be so construed as to take away tl
special power conferred by s. 528. Where therefo
a Joint Magistrate transferred a complaint from tl
second class Magistrate of K to the Taluk Magi
trate of P z—Ueld, that the District Magistrate ht
jurisdiction under s. 528 of the Code, to withdra
the case from the Magistrate of P and to re-transf
it to the Magistrate of K. Thaman Chetti
Alagiri Chetti . I. L. R. 14 Mad. 3

cedure Code, 1872, ss. 47, 491- Act XI of 1874,
s. 6. The provisions of s. 47 of the Code of Criminal
Procedure, Act X of 1872, as amended by s. 6 of Act
XI of 1874, are wide enough to empower a District
Magistrate to withdraw a case falling under s. 491 of
the same Code. In the matter of the pf fit ion of
Dinesdro|Nath Suanial . I. L. R. 8 Calc. 851

5^ — Criminal Pr

cedure Code, s. 528 — Village Munsif. A villa
Munsif not being a Magistrate under the Crimin
Procedure Code, a Joint Magistrate has no pow
under the Criminal Procedure Code, s. 528, to wit
draw a case from a village Munsif and transfer
for disposal to a second class Magistrate. Mad
varayachar v. Subba Rau I. L. R. 15 Mad. i

Criminal Fi

cedure Code (Act X of 18S2), k 628. An ord"
under s. 528 of the Criminal Procedure Code (Act
of 1882) transferring a case for enquiry or trial frc
one Magistrate to another ought not to be ma^
without notice to the accused. Queen- EmprE'
V. Sadashiv Narayan -Joshi

I. L. R. 22 Bom. 5''

7. Transfer— Wi[

drawal of case by District Magistrate— Inquiry f
trial— Code of Criminal Procedure {Act V of im,
ss. 253, 268. Where a case which was being tril
by a Deputy Magistrate, who was about to fra!>
charges against the accused persons, was withdraw
by the District Magistrate to his own file, and q-
missed under s. 253 of the Criminal Procedure C&
on the ground that the accused, who were policemf
were protected bj' their warrants : — Field, that fe
case ought to have been left with the Depif
Magistrate to be disposed of, and that it was for hi
to determine whether the offence charged was ma-
out, or whether the police were protected by thp
warrants. Gopinath Patnaik v. Narayan ^
Banerjee (1903) . I. li. R. 30 Calc. ^3

MAGISTRATE, SUBORDINATION" Oi^

^- Additional Distit

Magistrate and District Magistrate — CrimiV
Procedure Code {Act V of 1S9S). ss. 10 {2), 12, 3f.
S. 12 of the Criminal Procedure Code does [t
make an additional District Magistrate subordinfe
to the District Magistrate, and the latter can)ii
exercise the powers under s. 528 in respect of s^
Magistrates. The Code does not define the relato
between a District Magistrate and an AdditioM
District Magistrate. Prakas Chunder Dot^
Emferor (1907) . I. L. R. 34 Calc. ^

( 7845 )

DIGEST OF CASES.

( 7846 )

MAHARAJA OF BENARES, FAMILY
DOMAINS OF.

Court citablished

hy autliorily of Governor-General— Kondh, Court of
yalive Commissioner of — Benare§ Family Domains
Begulation (VII of 182^)— Benares Family Domains
Act (XIV of lsSl)~Civil Procedure Code (Act
XIV of iS-^-J), ss. 229, 229B. The family domains
of the Maharaja of Benares are situated within
British India as defined in Act X of 1897, s. 'S<, cl.7,
and 8. 4, ol. 1 ; and the Court of the Native Com-
inissioner or Subordinate Judge of Kondh within
those domains, established under Regulation VII
of 1828 amended by Act XIV of 1881, is a Court
established by the authority of the Governor
General in Council ; consequently neither s. 229
aors. 229B of the Code of Civil Procedure applit^s
;o the execution of^decree passed by it. Prabhu
mARain Singh v. Saligeam Singh (1907)

I. L. R. 34 Calc. 576
MAHOMEDANS.

See Mahomeuan Law.

Sec Partition Act (IV of 189;^), s. 4.

I. L. R. 29 All. 308
suit by —

See Limitation Act, 1877, Sch. IT, Art.
127 . I. L. R. 33 Bom. 719

MAHOMEDAN COMMUNITY.

See Hindu Law — Custom— Mahomedans'
I. L. R. 3 Calc. 694

■*^ee Jurisdiction of Civil Court -Caste.
I. L. R. 13 Bo . 429
I. L. R. 20 Bom. 190

ff AHOMEDAN LAW.

.See Evidence Act . 10 C. W. N". 33
See Gift . I. L. R. 29 Bom. 428

See Grant — Construction of Grants.

I. L. R. 18 Mad. 257
See Husband and Wife.

I. L. R. 21 Bom. 77
See Kidnapping from Lawful Guar-
dianship . I. L. R. 32 Calc. 444

See Pre-emption I. L. R. 27 All. 160

See Prest^mption of Death.'

I. L. R. 33 Calc. 173

See Purdanishin Women.

I. L. R. 12 Mad. 380

See Transfer of Property Act, 1882,
s. 53 . I. L. R. 31 All. 170

— assignment of undivided share

(mushaa) of property—

See Debtor and Creditor.

I. L. R. 26 Bom. 577

buildings on land compulsorily
L. R. 28 I. A. 121

MAHOMEDAN LAW— concR
ecclesiastical law —

See Religion, offences relating to.

I. L. R. 7 All. 461

1. Extent of -Religion. Although

the Mahomedan Law, pure and simple, is part of the
Mahomedan religion, it does not of necessity bind
all who embrace the Mahomedan creed. Mahomed
SiDicK V. Ahmed. Abdula Haji Abdsatar v.
Ahmed . . I. L. R. 10 Bom. 1

2. Authorities on Mahomedan

law, value of — Rule of interpretation. It is a
general rule of interpretation of the Mahomedan law
that in cases of diri'erence of opinion amongst the
jurisconsults Imam Abu Hantfa and his two dis-
ciples. Qazi Abu Yusuf and Imam Muhammad, the
opinion of the majority must be followed ; and in
tho application of legal principles to temporal
matters, the opinion of Qazi Abu Yusuf is entitled
to the greatest weight. Abdul Kadir v. Salima

1. L. R. 8 All. 149

3. . Doubtful point of Isiw^Rule

of interpretation — Fr^ictice of Court. V/here by
writers of the highest authority on the law of a
particular sect a point of law is admitted to be
doubtful, regard should be had to the practice of
the Courts. Daim i: Asooha Bebee

2 N. W. 360

MAHOMEDAN LAW— ACKNOWLEDG-
MENT.

Acknowledgment by father

— Effect of acknowledgment of son or daughter.
According to Mahomedan law, acknowledgment of
a father renders a son or daughter a legitimate
child and heir, unless it is impossible for the son or
daughter to be so. Oomda Bibee l: Jonab AH

5 W. R. 132 : 1 Jur. N. S. 143

FUZEELUN BeEBEE V. O.MDAH BeEBEE

10 W. R. 469

Wuheedun v. Wusee Hossein 15 W. R. 403
2. — — Effect of acknow-
ledgment of son. According to Mahomedan law, the
acknowledgment of the father renders the son a
legitimate son and heir, whether the mother was or
was not lawfully n\arried to the father. Nuj-
MOODEEN Ahmed v. Zuhoobun . 10 W. R. 45

Proof of legili-

acquired

<See ZANZir>AR
VOL. III.

macy— Inference. The Mahomedan law allows legi-
timacy to be inferred from circumstances without
direct proof. i\L\.homed Gouhuk Ali Khan v.
Harratoonissa .... 2 W. R. 52

TJpheld on the facts by the Privy Council. Ha-
beeboollah v. Gouhur Ally Khan

18 W. R. 523

4. Proof of legiti-
macy— Marriaije— Inference. According to the
Mahomedan law, the legitimacy or legitimation of a
child of .Mahomedan parents may be presumed or
inferred from circumstances, without proof, or at
least without any direct proof, of a marriage between

11 R 2

( 7847 )

DIGEST OF CASES.

( 7848 )

MAHOMEDAN LAW— ACKNOWLEDG-
MENT—cowfc?.

the parents, or of any formal act of legitimation.
Mahomed Batjkeu Hossein Kjian v. Shuhfoo-

NISSA EEGTJM

3 W. R. P. C. 37 : 8 Moo. I. A. 136

Presumption as

to cohahitation — Legitimacy of inf^ue. The Maho-
medan law is very scrupulous in bastardising the
issue of any connexion in which it can be shown by
presumption that there has been cohabitation and
acknowledgment of paternity. Roshujsi Jehan v.
Enaet Hossein. Enaet IIossein v. Roshun

Jehak 5 W. R. 5

Afllrmed by Privy Council in Khajooroonissa

V. RowsHAN Jehan . I. L. R. 2 Cale. 184

26 W. R. 36 : L. R. 3 I. A. 291

6. Presumption of

marriage — Onus probandi. According to the Maho-
raedan law, a public acknowledgment of paternity
will of itself raise a presumption of marriage between
the person who rtiakes it and the mother of the child,
without the father specifically connecting his pater-
nity with any particular woman. To rebut this pre-
sumption, the onus of proving the impossibility of
the marriage is on the other side. Rook Begum v.
Walagowhur Shah . . 3 W. R. 187

An acknowledgment by a Mahomedan that a certain
person is his son is not prima facie evidence of the
fact which may be rebutted, but establishes the fact
acknowledged. Such acknowledgment is valid
when the ages of the parties admit of the relationship
between them, and where the descent of the party
acknowledged has not been already established
from another. In the ^natter of the petition of
Najiv.cnnissa . . 4 B, L. E. A. C. 55

Jaibtjn v. Nujeeboonissa . 12 W. R. 497
adirming , on appeal, Nujeeboonissa v. Zumeekun
11 W. R. 426

8. Presumption of

legitimacy. In the case of a Mahomedan child born
in wedlock, there being no reliable evidence to show
why the ordinary presumption should not prevail, it
must be deemed the child of the husband. Jes-
WUNT Singjee Ubby Singjek v. Jet Singjee
li'iiiiY Singjee

3 Moo. I. A. 245 : 6 W. R. P. C. 46

9. Presuraption as to

hgitimacy of son — Custom of primogeniture. Ob-
servations on the law laid down by the PriVy Council
regarding the presumption of legitimacy which
arises, under the Mahomedan law, in the absence of
proof of marriage, when a son has been uniformly
treated by his father and all the members of the
lamily as legitimate. Muhammad Ismail Khan
V. FiBAYATUNNISSA . . I. L. R. 3 All, 723

10. Legitimacy of

son — Presumption of marriage. U'here a son has
been uniformly treated by his father and all the
members of the family as legitimate, a presumpt on
arises under the Mahomedan law that the son's

Legitimacy of son.

MAHOMEDAN LAW— ACKNOWlED(

MENT-coni'/.

mother was his father's wife. KHAJOonooNisSA.
RowsHAN Jehan

L. R. 2 Calc. 184 : 26 W. R. :i
L. R. 3 I. A. 2L

Atarming decision of High Court in Rosht
Jehan v. Enaet Hossein. Knaet Hossein _
Roshun Jehan .... 5 W. Ei

11. AcJcnouiedgmt

of children as sons. The acknowledgment and -
cognition of children by a Mahomedan as his .so ,
giving them the status of sons capable of inherit t-
as being of legitimate birth, may without proof t
his express acknowledgment of them, be inferil
from his treatment of such children, provided tjfe
certain conditions negativing this relationship ©•
absent. The question whether such acknowler-
ment should be presumed or not, depends on ©
circumstances of each particular case. Ashruf()~
dowlah Ahmed Hossein Khan v. Hyder Hossn
Khan, 11 Moo. I. A. 94, referred to ar.d followL
Mahammad Azmat All Khan v. Lalli Begum

I. L. R. 8 Calc. 42
L. R. 9 I. A3

12.

Presumption )/

marriage. According to Mahomedan law, mere ci-
tinucd cohabitation without proof of mTriage o;)f
acknowledgment is not sufTicient to raise such a led
presumption of marriage as to legitimise the I-
spring. Marriage and acknowledgment may»e-
presumed, but the presumption must be one of fit,
and, a^ such, subject to the application of le
ordinary rules of evidence. A subsequent marri;e
so far from raising the piesuraption of a p)r
marriage, prima fade at least excludes that p-
sumption. Ashrufooddowlah Ahmed Hossjst
V. Hydek Hossein Khan
i 7 W. R. P. C. 1 : 11 Moo. I. A,4

13. Illegitimacy of

birth- Insufficiency of father's acknowledgment tA-
out intention to legitimate — Marriage, valHy
of. On the question of the legitimacy of a son Ifn
to a Mahomedan by a Burmese woman, the quesin
did not arise on this appeal whether the father cdd
have entered into a valid marriage with the moM
without her having relinquished Buddhism. ja«
Court below found against her alleged conversiop"
the Mahomedan religion, and also found uponp
facts that no marriage of the parents as distingui
from concubinage had taken place. The
finding was af'irmed. As to the question whe[<
the son born to them had been legitimated by|t
father's acknowledgment of him : Held, l»t
under the Mahomedan law the legitimation of at)n
born out of legal wedlock, may be effected by«c
force of his father's acknowledgment of his bpg
of legitimate birth ; but that a meie rncognitioi<»f
sonship is insuff'cient to eSect it. Acknowledgrin*
in the sense meant by that law is required, k-»
of antecedent right, and not a mere recognjM
of pateinily. Ashrufooddowh Ahmed Uotseiiy-
Hyder Hossein Khan, 11 Moo. I. A. 94,TeX^

( 7849 )

DIGEST OF CASES.

( 7850 )

MAHOMEDAN LAW— ACKNOWLEDG-
MENT—con<rf.

0 and followed. Abdul Ka/ak v. Aga Mahomed

Iaffeb Bindanim . I. L. R. 21 Calc. 666

L. R. 21 I. A. 56

14. — V'tlidity of—Ac-

hwwledgment of son. Where in a transaction
\ith a third party A describes B as his son, and B
.peaks of A as his father, the acknowledgment of
onship is complete and formal, and, under the
■tfabomedan law, conclusive against all parties.
i*iUBO Kant Roy Chowdhky v. Mahatab Bibee
i 20 W. R. 164

16. • Legitimation of

i^pring hy ucknowledgment. The ackno'\ledgment
.id recognition of a natiiral son by a llahomedan as
iis son gives him the status of a son capable of in-
' lerituig as a legitimate son, unless certain conditions
list. MuhomeA Azmal Ali Khan v. Lalli Reyzitn,
'. L. R. S Cah. 42-J, referred to. Whether the
'ifspring of an adulterous intercourse can be legiti-
■ oated by any aoknovviedgrrient is an open question.

ADAKAT HOSSEIN V. MaHOMED YtJSUF

' L L. R. 10 Calc. 663

L. R. 11 I. A. 31

16.

Legitimaaj —

^^ffed of acknoicledgmeni of sonshif. Held, by
'ethera^t, C.J., that, according to the Mahomedan
iw, the effect of an acknowledgment by a Maho-
nedan that a particular person, born of the acknow-
'dger's wife before marriage, is his son in fact,
nough the acknowledger may never have treated
(im as a legitimate son or intended to give him the
jiatas of legitimacy, is to confer upon such person
■le status of a son capable of inheriting as legitimate,
iiiiess conditions exist which make it impossible
hat such person can have been theacknowlediief's
• •■n in fact. Aslirufooddowlah Ahmed Hossein Khan
^. Hyder IIoi.iein Khan, 11 Moo. 1. A. 94 ; Muham-
ndAzmat Ali Khan v. Lalli Begum, I. L. R. 8 Calc.
22 ;and Sadakat Hossein v. Mahomed Yusnf, I. L.
I'. 10 Calc. 663, referred to. In a suit for possession,
y right of inheritance, of a share of the property
J a deceased Mahomedan by a person alleging
imself to be a son of the deceased, the defendants
leaded that the i)laintitT was not a son, but a step-
>n, having been born of the deceased wife before
|?r marriage. The plaintiff filed certain letters and
^ther documents in which the deceased in express
^rms referred to him as his son ; and he contended
, lat these references amounted to acknowledgments
I him as a son made by the deceased, which, under
|ie Mahomedan law, entitled him to inherit as a
I sitimate son. Held, by Petheram, C.J. (Brod-
^^RST, J., dissenting), that the acknowledgment by
,ie deceased of the plaintiff as his son in fact con-
;rred upon the latter the status of a legitimate son
J pable of inheriting the deceased's estate, although
e evidence showed that the deceased never treated
I m as a legitimate son, or intended to give him the
j'tusof legitimacy. Held, by Brodhttrst, J.,
."^TO, that the documents above referred to did
't show more than that the deceased regarded the
aintifif as his step-son ; that the plaintiff was never !

MAHOMEDAN LAW— ACKNOWLEDG-
MENT—co?i<rf.

called his son except by courtesy and in the sense
in which a European would ordinarily describe his
step-son as his son ; and that there was no sufficient
evidence of the acknowledgment from which an
inference was fairly to be deduced that the deceased
ever intended to recognize the plaintiff and give him
the status of a son capable of inheriting. Sadakat
Hossein v. Mahomed Yiisuf, L L. R. 10 Calc. 663,
referred to. Mahammad Allahdad Khan v,
Mahammad Ismail Khan . I. L. R. 8 All, 234

17. Inheritance —

Legitimacy — Acknotdedgment of sonshi'p. Per
Edge, C.J., and Straight, J. — The rules of the
Mahomedan law relating to acknowledgment by a
Mahomedan of another as his son are rules of the
substantive law of inheritance. Such an acknowledg-
ment, unless certain impediments exist, confers
upon the person acknowledged the status of a legi-
timate son capable of inheriting. Where there is no
proof of legitimate birth or of illegitimate birth, and
the paternity of a child is unknown, in the sense
that no specific person is shown to be the father, then
the acknowledgment of him by another who claims
him as a son affords a conclusive presumption that
he is the legitimate child of the acknowledger, and
places him in that category. Such a status once
conferred cannot be destroyed by any subsequent
act of the acknowledger or of any one claiming
through him. Per M.^hmood, J. — Although, accord-
ing to the Mahomedan law, ikrar or acknowledg-
ment in general stands upon much the same footing
as an admission as defined in the Evidence Act,
acknowledgments of parentage and other matters
of personal status stand upon a higher footing
than matters of evidence and form a part of the
substantive Mahomedan law. So far as inherit-
ance through males is concerned, the existence of
consanguinity and legitimate descent is an indis-
pensable condition precedent to the right of
succession, and such legitimate descent depends
upon the existence of a valid marriage between the
parents. Where legitimacy cannot be established
by direct proof of such a marriage, ucknowledgment
is recognized by the Mahomedan law as a means
whereby marriage of the parents or legitimate
descent may be established as a matter of substan-
tive law. Sxich acknow'ledgment always proceeds
upon the hypothesis of a lawful union between the
parents and the legitimate descent of the acknow-
ledged person from the acknowledger, and tliere is
nothing in the Mahomedan law similar to adoption
as recognized by the Roman and Hindu systems,
or admitting of an affiliation which has no reference
to consanguinity or legitimate descent. A child
whose illegitimacy is proved beyond doubt by
reason of the marriage of its parents being either
disproved or found to be unlawful, cannot be
legitimatised by acknowledgment. Acknowledg-
ment has only the effect of ligitimation where either
the fact of the marriage or its exact time, ^vith
reference to the legitimacy of the child's birth, is a
matter of uncertainty. Ashrufooddowlah Ahmed

( 7851 )

DIGEST OF CASES.

( 7852 )

MAHOMEDAN LAW— ACKNOWLEDG-
MENT—cowW.

Hossein Khan v. Hyder Hossein Khan, 11 Moo.
I. A. 94 ; Muhammad Aztnat Ali Khan v. Lalli
Begum, L. E. 9 I. A. 8 ; I. L. E. 8 Calc. 422 ; and
Hadakat Hossein v. Mahomed Yusuf, L. E. 11
I. A. 31 ; I. L. E. 10 Calc. 663, referred to. Mu-
hammad Allahdad Khan v. Muhammad Ismail
Khan . . . I. L. R. 10 All. 289

18.

.Legitimacy. Held,

that a Mahomedan could not, by acknowledg-
ing him as his son, render legitimate a child whose
mother at the time of his birth he could not have
married by reason of her being the wife of another
man. Muhammad Allahdad Khan v. Muhammad
Ismail Khan, I. L. E. 10 All. 289, followed.
LiAQUAT Ali v. Kaeim-un-nissa

I. L. R. 15 AIL 396

19.

Acknowledgment,

effect of, on illegitimate children. The doctrine of
acknowledgment is not applicable to a case in which
the paternity of the child is known, and it cannot
therefore be called in to legitimate a child which is
illegitimate by reason of the unlawfulness of the
marriage of its parents. Mahomed Allahdad Khan
V. Muhammed Ismail Khan, I. L. E. 10 All. 289,
followed. AizuNNiSA Khatoon v. Karimunnissa
Khatoon . . . I. L. R. 23 Calc. 130
AchnowHedgr

effect of — Legitimacy of children — Fornication —
Sunni Mahomedans. Under the Mahomedan law,
where a child is begotten by a Mahomedan father by
a Hindu prostitute living with him, no acknowledg.
ment by the father can confer on the child the
.status of legitimacy. Bhan Bibi v. Lalon Bibi

I. L. R. 27 Calc. 801

21.

Mode of acknow-

ledgment. In order to an acknowledgment of pater-
nity legitimating children under the Mahomedan law,
the declaration ought to be clear and distinct in
respect to each child ; and the children, or those of
them who have reached years of discretion, ought to
come forward and acknowledge tlieir father.
Kedaenath Chuckerbxttty v. Donzeli.e

20 W. R. 352

Form of acknow^

ledgment — Evidence of marriage. The acknowledi^
ment need not be of such a character as to be evi-
dence of marriage. Wuheedun v. Wusee Hossein
15 W. R. 403

23.

Legitimacy of

children — Presumption as to marriage. Where a
Mahomedan lady sued for a declaration of the vali-
dity of her marriage with the man with whom she
had lived and of the legitimacy of their children,
and relied upon the position which her reputed
husband gave her during his lifetime in his family
and on his treatment of their children : — Held, fol-
lowing Privy Council in Ashrufooddowlah Ahmed
Hossein Khan v. Hyder Hossein Khan, 11 Moo.
I. A. 94, that though tl\e presumption of legitimacy
'■' follows from the bed," and legitimacy may be infer-
red from the treatment shown during lifetime to a

MAHOMEDAN LAW— ACKNOWLED(

MENT— cow^c?.

woman and her children, yet a Court, in dealing wi
this subject, would not be justified in making a
presumption of fact which a rational view of t
principles of evidence would exclude ; and that as i
force of presumptions of fact must vary with vai
ing circumstances, — and in the present case tf
circumstances were all such as to throw the Coii
upon direct evidence rather than upon presuiu.
tions, — the Court could not, in the absence of sU-
stantive evidence, allow the claim. The app«l
was accordingly dismissed. The circumstand
above referred to, as throwing the Court upi
direct testimony, were that the lady herself was .
the suit, and might have given her eviden
that a valid Mahomedan marriage must al\
be made in the presence of witnesses, who mi^.
have been summoned as witnesses, together wi
the officiating mollah or kazi ; and that the ©-
dence of one such witness, who had been caU<,
actually threw doubt upon itself. BuTOOLff

V. KOOLSOOM. BUTOOLTJN V. LlYOD

25 W. R. 4

24. Illegitimate n

— Informal acknotdedgme.it. The son of a Ma|-
medan by a slave girl, if acknowledged by k
father, is entitled to the same share as the soii (k
lawful wife. The aclvnowledgment of a sonbja
Mahomedan need not be a formal acknowledgmei :
if it can be made out from his acts and conduct.t
will be sufficient. Waliulla v. Miran Saheb

2 Bom, 25

25. Lcgitimacyl

child. Kot\vithstanding Mahometan law, a Co"6
of Justice cannot pronounce a child to be the leai-
mato offspring of a particular individual when s^h
a conclusion would be contrary to the coursetf
nature and impossil^le. Ashrxtf Ali v. Ashad ..i

16 w. R. a)

26. Acknowledgment by b>

ther — Brotherhood— Nasah— Illegitimacy. A ra
cannot acknowledge a brother so as to estabh
the nasah. Shahebzadi Beoxjm v. Himmut i-
hadur 4 B. L. R. A. C. 103 : 12 W. R. **

s. c. aifirraed on review. Himmut Baha
Shahazada Begum . . 14 W,

ADOok

27.

Validity of

knowledgment — Insufficient acknowledgment, cffec
The plaintiffs, E and M, were the illegitimate
and daughter of B, a Mahomedan woman.,
died, and after his death the plaintiff sued*i6
widow and M to recover his share of the jo-
perty of B, which he claimed as co-heir ofc-
He relied upon a recital in a petition, in whiclft.
the plaintiff, and M, describing themselves aspe
son and daughter of B, had prayed for a certilifM
under Act X K VII of 1860. Held, that this wa jo*
such an acknowledgment of the plaintill by E stO-
constitute between them the status of full brotsr-
hood and heirship by Mahomedan law. Senie:
The acknowledgment by one man of another aiiis-

( 7853 )

DIGEST OF CASES.

( 7854 )

MAHOMEDAN LAW-ACKNOWLEDG-

MEWT— cone /(/ .

brother is not by Mahomodan law valid so as to bo
obligatory on the other hoirs, but is binding against
the acknm\ ledger. Himmut Bahadur v. Shaheb-
ziDi Beoum . 13 B. li. R. 182 : 21 W. R. 113
li. R. 1 1. A. 23
affirming decision of High Court in preceding case

28. __ Doctrine of Aeknowledg-

j^eni—Legitunacy—Name of a -person n-kcthcr indi-
cates Ike per. ':o7i to be Mahomedan or Hindu. Unless
there is an absolute bar or impediment to a valid
marriage, acknowledgment has the etTeet of legiti-
mation according to Mahomedan law, where either
the fact of the marriage or its exact time Avith
reference to the legitimacy of the child 's birth is
d matter of uncertainty. Liaqat Ali w Karimvn-
nessa, J. L. B. 7 J All. 39'i ; Aizunnis.':a v Karimun-
neisa, I. L. R. 23 Calc. 130 ; and hhan Bihi v.
Lalon Bihi, I. L. B. 27 Calc. .'01, distinguished.
The doctrine of acknowledg;nent is an integral
portion of the Mahomedan family law and the
conditions under which it will taKe elTect, must
bo determined with reference to Mahomedan
jurisprudence, rather than to the Evidence Act.
Mahomed Allahdad Khan v. Maliomed Ismail
Khan, I. L. B. 10 All. 2Sf) ; Mahataln v Prince
■ Ahvied, 10 C. L. B. 2ii3, referred to. Abdul Bazack
V. Alia Mahomed, L. B. 211. A. -56 : s.c. I. I. /.'.
, 21 Calc. 666, distinguished. Fa7IL-atijnnessa v.
Kamakunnessa (1905) . . 9 C. W. N. 325

MAHOMEDAN LAW— ARIAT.

29,' • Mutation oj

names— Arial. A Mahomedan caused mutation

of names in respect of certain property to be effected

I in favour of his wife, and at the same time presented

a petition to the flevenue Court, stating that he had

transferred his rights and interests to his wife,

Habib-un-nis?a, and made her his locum tenens, but

that she had no power to transfer the property in

any way, and that she would continue to hold and

' possess'the share for her life ; but he executed no

' formal transfer of the property to his wife. Held,

' this was not a gift, but merely an " ariat" and

' invalid according to the Mahomadan I aw. Mitm-

TAZ-UN-NISSA V. TUFAIL AhMAD (1005)

; I. li. R. 28 All. 264

MAHOMEDAN LAW— BILL OF EX-
CHANGE.

Notice of dishonour. >!otice of

rhshonoiirof a bill of exchange is not necessary by
Mahomedan law. Gapinath v. Abras Hossein
7 B, L. R. 434 note

MAHOMEDAN LAW— CONTRACT.

ConBideration—Btlotionship.

MAHOMEDAN LAW— CONTRACT—

conoid.

such an agreement. Jafar Ali Nizam Ali v.
Ahmad Ali Imam IIatoarbarsh

5 Bom. A. C. 37

2. Mortgage — Bedemption of sepa-
rate 7nortgagee^ from debt. The rule that if the
owner of different estates mortgage them to one
person separately for distinct debts, or successively
to secure the same debt, the mortgagee may insist
that one security shall not be redeemed alone,
applies to a Mahonunlan mortgage. Vithal
Mahadev v. Datjd valad Muhamm/.d Husen

6 Bom. A. C. 90

MAHOMEDAN LAW— CUSTODY OF
WIFE.

See Habeas Corpus . 13 B. L. R. 160

Rights of mother and husband

By Mahomedan law the mother is entitled to the
custodyTof a female child, although married, until
she has'attained puberty. W here a husband applied
that his wife, stated in the return to a writ of
habeas corpus to be " an infant under the age of
sixteen years, to wit of the age of eleven years or
thereabouts," might be delivered over into hi^
custody, the Court, on the grotind that she had not
attainedfthe age of puberty and that her dower had
not been paid, refused to order her to be taken from
the custody of the mother, although the mother
had taken hereaway secretly, in the absence of her
father and'husband from BanJari, where they were
all living together, to Calcutta. In the matin- of
Khatlta Bibi . • 5 B. L. R. 557

.See In the matter of Mohim Bibi

13 B. L. R. 160

MAHOMEDAN LAW— CUSTOM.

See Converts . I. L. R. 20 Bom. 53
See Jurisdiction of Civil Court —
Religion . I. L. R. 15 Mad. 355
See Limitation Act, 1877, Si h. II, Art.
lOQ . L L. R. 21 Calc. 157

L. R. 20 I. A. 155
See Mahomedan Law— Endowment.

I, li. R. 13 Bom. 555

I. L. R. 22 Calc. 324

L. R. 22 L A. 4

I. L. R. 19 All 211

See Mahomedan Law — Kazi.

I. L. R. 18 Bom. 103
See Relinquishment of, or Omission to
SUE FOR, Portion of Claim.

I. L. R. 21 Calc. 157
L. R. 20 I. A. 155

evidence of—

By Mahomedan law an agreement to pay an annuity,
though signed and registered, has not the effect of
a deed in English law, but requires a consideration
to support it. The relationship existing between
consins is not a sufficient consideration to supp irt

See Mahomedan Law— Inheritance.

I. L. R. 23 All. 20
1. Kazi, appointment of— Here-

I ditary office, grant of. In the absence of an estab-
I lished local custom to that efiect, the office of

( 7855 )

DIGEST OF CASES.

( 7856 3

MAHOMEDAN LAW— CUSTOM— conid.

Kazi is not hereditary. Qucere : Whether such a
custom would be valid. Jamal walad Ahmed v.
Jamal walad Jallal . I. Hi. R. 1 Bom. 633

2. Custom of right to eject on

sale — Lease — Saleby lessor. A Mahomedan resid-
ing at Zanzibar let a house situated there to the
defendant, to be held by the latter as long as he
pleased, under a lease in which he (the lessor) stipu-
lated never to remove the lessee. The plaintifi sub-
sequently with full knowledge of the lease, pur-
chased the same house from the lessor, and as such
purchaser sued to eject the defendant. The plaintiff
tendered evidence to show that by the custom of
Zanzibar the defendant 's tenancy was determined
upon the sale by the landlord. This evidence was
refused. Held, that the alleged custom, even if
proved, was invalid. It was unreasonable, as
enabling a man, after having granted a lease, to
deprive the lessee of the entire benefit of his lease.
DeSouza v. PtsTANji Dhanjibhai

I. L. R. 8 Bom. 408

Exclusion from, inheritance

of females by sons — Labis — Ravuthans of Pal-
gat — Mahomedan religion — Hindti law of in-
heritance— Evidence necessary to support valid
custom. A claim by the wddow of S, Ravuthan, a
Labi of Palgat, and her daughters, for their shares of
his estate under Mahomedan law, M'as opposed by
other members of the family, who pleaded that,
according to a special custom obtaining among the
Ravuthans of that part of the country adopted from
Hindu law, females are excluded from inheritance if
sons or sons' sons exist. In two instances it was
proved that women of this class had obtained shares
under Mahomedan law by suits without this plea
having been put forward. The District Munsif
described these cases as interruptions, and found on
the evidence that the custom was proved. On
appeal this decree was confirmed by the Subordinate
Judge. Held, that no valid custom was established
by the evidence. A custom, to be valid, must be
consciously accepted as havmg the force of law.
Mieabivi v. Vellayanna . I. L. R. 8 Mad. 464

4. Division of estate in cases of

intestacy — Impartible estate — Beng. Reg. XI of
nyS—Beng. Reg. X of UOO. The family usage
that a zamindari ha-j never been separated, but has
devolved entire on every succession, though proved
to have existed as the custom for many genera-
tions, will not exempt the zamindari from the
operation of Regulation XI of 1703, which provides
in case of intestacy for the division of landed estate
among the heirs of the deceased according to the
Mahomedan or Hindu law. Regulation X of 1800
does not apply to undivided zamindaris in which
a custom prevails that the inheritance should be
indivisible, but only to jungle mehals and other
entire districts where local customs prevail, and
therefore only partially, and to that extent repeals
Regulation XI of 1793. Deedar H ossein v.
Zuhooroonnissa . . 2 Moo. I. A. 441

5. Public worship in mosque —

Injunction restraining defendants from interrupt-

MAHOMEDAN LAW— CUSTOM— co^iW.

ing religious ceremonies in a musjid — Right >
imam and of mutwali to be protected in their offices-
Differences of opinion between the imam and certai
of the it'orshippers as to observances at praye
Among Sunni Mahomedans, neither on the groun
of any general and express rule of Mahomedan la
nor on the ground of the growth of customs separai
ing different schools in so marked a manner that th
followers of one school could not properly worshi
with those of another, did the introduction by tb
Imam of (a) the loud-toned Amen, and of (6) tb
Rafadain, show such a change of tenets. Norwa
it in itself such an important departure from t]
custom of Sunnis as that it would disqualify tl
imam for ofhciating in a musjid where those cei
monies had not previously been used. Nor did ti
introduction of {«) and of [b) justify a section of tii
worshippers in setting up another leader of praye
at the same time that prayer was being conducte
by the duly authorized imam. On the lowe
Appellate Court 's findings of fact there was^nothin
in the constitution of the mosque which prohibite
the adoption of (a) and (6), and those^findiagsjwei
conclusive. For the purpose, however, of considei
ing the case from other points of view, their Lord
ships examined the whole of the'evidence, and the
agreed with the Subordinate Judge that there wa
no evidence sho\ving that the mosque was not ir
tended for the worship of all Sunnis or for &
Mahomedans. Nor was there any rule of law thai
when public worship had been performed in
certain way for twenty years, there could not be an
variation, however slight, from that way. Tb
question in each case of dispute must be as to th
magnitude and importance of the alleged departurt
There had not been produced any text to show tha
a follower of Abu Hanifa would do wrong in follow
ing a practice recommended by others of the fou
imams. Nor was there any usage having the fore
of law among Sunni communities, forbidding th
introduction of {a) and {b) into ceremonial praye
as shown by the evidence of learned Mahomedam
and by proof of their actual practice. The judg
ments in Empress v. Ramzan, I. L. R. 7 All. 46 1
and Ataulla v. Azimula, I. L. R. 12 All. m
referred to. The Court ought not to declare tha
the imam or mutwalis of the musjid had authoritj
to eject the dissentients, if and when they inter
fered. The plaintiffs must rely on the prohibitorj
order or injunction, which could be enforced accordi
ing to law if the occasion arose. Fazl Kabim tl
Maula Baksh . . I. L. R. 18 Calc. 44^
L. R. 18 I. A. 5

6. Immoral customs — Succession

to property among Kanchans — Practices not rd
cognizable by law as customs. Among Mahomedaj
Kanchans, practices relating to their holding and in
heritance of property, having an immoral tendenci
were held to be not recognizable as customs, _o|
enforceable as law. To recognize practices tendini
to promote prostitution, which the Mahomedan la^
reprobates and prohibits absolutely,* would be coti
trary to the policy of that law. Where propertj
left by a female Kanchani, deceased, was claimed

( 7857 )

DIGEST OF CASES.

( 7858 )

MAHOMEDAN L,AW— CUSTOM— fowcZrf.

by her legitimate kindred : Held, that an " adop-
iion," so called, in conformity with those prac-
tices, had not operated to separate her from the
amily in which she was born. The mode in which
ler propertj' had been acquired was not the
lubjeet of the present question, which was only
■oncemed with the right of personal succession to it :
ind that property was held to be distributable ac-
■ording to the rules of Mahoraedan law governing
nheritance. Ghasiti v. Umrao Jan. Ghasiti v.
Iaggu . . . I. L. R. 21 Calc. 149

L. 1^20 1 A. 193

7. Hight of performing rites

,t the graves — Graveyard — Land formerly -used
'graveyard — Bom. Keg. IV of lSz7, ,s-. :.'2. Certain
vnd at Dharwar, which had been formerly been
sed as a graveyard by the Mahomedan community
here, but which had been disused as such for twenty
r thirty years, Mas sold by the owner to defendant
.who thereupon commenced to prepare the founda-
ons of a house which he proposed to build upon it.
he plaintirfs, who Mere Mahomedan residents at
"harwar, brought this suit, alleging that the
lahomedans of Dharwar were accustomed to
srform religious rites and ceremonies at the graves
1 the said land, and praying for a declaration that
ley were entitled so to do, and for an injunction re-
raining the defendants from obstructing them.
1 eld; that they were entitled to the declaration and
junction prayed for. Per Ftjlton, J. — By the
istom of the country, founded on a sentiment
tiich may almost be described as universal, the
ound in which human relics are interred is re
irded as for ever sacred. The members of the
mily of the dead are in the habit of performing
rtain religious services at their tombs. The
.mership of the soil may be vested in others, but
e permission to bury in the land, granted, as it
QSt be, subject to the custom of the community,
1 fries with it the right to perform all customary
;e6. Ramrao Narayan Bellary v. Rustum
aAN (1901) . . . I. L. R. 26 Bom. 198

LAW— CUTCHI ME-

AHOMEDAW"

MONS.

See HiNDTJ Law — Inheritance — Special
Laws — Cutchi Memons.

\- - Hindus — Hindu Wills Act, s. 2

probate of will. Cutchi Memons are not Hindus
ihin the meaning of s. 2 of the Hindu Wills Act
I XI of 1>*70), and therefore probate, to take effect
I'ooghout India, cannot be granted in the case of a
II of a Cutchi Memon testator. Cutchi Memons
'I Mahomedans to whom Mahomedan law is to be
' )lied, except when an ancient and invariable
1; cial custom to the contrary is established. In re
• AIL . . . . i. L. R. 6 Bom. 452

'• Lavir of inheritance appli-

< )Ie to. In the absence of proof of any special
tjtom of inheritance, the Hindu law of inheritance
I 'lies to Cutchi Memons. Ashabai v. Tyeb Haji

JIMTDLLA

I. li. R. 9 Bom. 115

MAHOMEDAN LAW— CUTCHI ME-
MONS— conoid.

Abdool Cadur Haji Mahomed ?• Turner

I. L. R. 9 Bom. 158

MAHOMEDAN LAW- DEBTS.

See Debtor and Creditor.

I L. R. 8 All. 178
See Representative of Deceased Per-
son.

See Sale in Execution of Decree —
Decrees against Representatives.

1. Decree against heir of debtor

— Effect of decree against one heir. Under Maho-
medan law, a decree against one heir of a deceased
debtor cannot bind the other heirs. Sitanath Das
V. Roy Luchmiput Singh . 11 C. L. R. 268

2. Consent decree against one

heir, effect of— Heir of deceased debtor— Intes-
tacy— Succession — Parties — Suit by creditor of
intestate Mahomedan — Representation of deceased
debtor. Per Garth, C.J. — A decree by consent
against one heir of a deceased debtor cannot, under
the Mahomedan law, legally bind the other heirs.
Per Markby, J. — Under the Mahomedan law, the
estate of an intestate descends entire, together with
all the debts due from and owing to the deceased.
The creditor of an intestate Mahomedan must en-
force his claim against the estate in a suit properly
framed for the purpose. Such a suit is properly
framed if all the persons in possession of that parti-
cular portion of the estate which it is intended to
charge are made parties to it. The right of a
Mahomedan heir claiming the property of his
deceased ancestor, M'ho died indebted, is a right of
representation only, and except as representative
he has no right to the property Mhatsocver.
Assamathemnessa Bibee v. Roy Lftchmeeput
Singh I. L. R. 4 Calc. 142 : 2 C. L. R. 223

3. Creditors of deceased person

— Alienation by her — Purchaser from heir of
MaJiomedan—Lis pendens. The creditor of a de-
ceased Mahomedan cannot folloM' his estate into the
hands of a bond fide purchaser for value, to whom it
has been alienated by the heir-at-law, -whether the
alienation has been by absolute sale or by mortgage.
But where the alienation is made during the pen-
dency of a suit in which the creditor obtains decree
for the payment of his debt out of the assets of
the estate which have come into the hands of the
heir-at-law, the alienee will be held to take with
notice, and be aifected by the doctrine of lis pen-
dens. Bazayet Hossein i'. DooLi Chfnd. Maho-
med Wajid v. Tayyuban

I. L. R. 4 Calc. 402 : L. R. 5 I. A. 211

4. Alienation by

heirs — Bights of mortgagee. The debts of a de-
ceased Mahomedan are not a charge upon the estate
which gives the creditor a priority over all persons
who after his death purchase or take a mortgage of
his estate. See Bazayet Hossein v. Dooli Chund,

( 7859 )

DIGEST OF CASES.

7860

MAHOMEDAN LAW— DEBTS— co?if(Z.

L. R. 5 1. A. 211, 1. L. R. 4 Calc. 402. Land
Mortgage Bank v. Bidyadhaki Dasi

7 C. li. R, 460

5. The creditor of a

deceased Mahoniedan cannot follow his estate into
the hands of a bond fide purchaser from his heir,
Bazaijet H ossein v. Dooli Chund, L. R. 5 I. A.
211, followed. Land Mortgage Bank v. Roy
LtrcHMiPUT Singh . . . 8 C. L. R. 447

Sale in execution

of money-decree a/jainst the representatives of de-
ceased Mahomedan — Rights of purchaser at execu-
tion-sale against mortgagee — Notice. In execution
of a money-decree against the heirs of a deceased
Mahomedan for a debt incurred by him, A purchased
certain property which had been allotted to the
widow of the deceased in lieu of dower and of her
share of the inheritance. Previously to the pur-
chase, however, the widow had mortgaged the same
property to B, who, at the time of the mortgage,
knew of the debt for which the decree was obtained.
In a suit by B against A on the mortgage, it was not
sho^vn that there were not assets in the hands of
the heirs-at-law to satisfy the debt due to A 's
vendor. Held, that '5 was entitled to recover.
Bazayet Hossein v. Dooli Chund, L. R. -5 I. A. 211,
followed. Narsingh Dass v. Najmooddin Hossein
I. L. R. 8 Calc. 20 : 10 C. L. K. 225

7. Administration,

suit for — Suit by creditor of deceased Mahomedan
against his heir — Sale in execution of decree.
After the death of a Mahomedan, several of his cre-
ditors sued his widow and daughter, and obtained
decrees against the assets of the deceased, which
assets had come into the possession of the mother
and daughter. In execution of these decrees, por-
tions of the property were sold : thereupon two
married sisters of the deceased, who lived with their
husbands apart from the widow and daughter,
sued as heirs of the deceased to recover their shares
of the property sold. Held, that the property of the
deceased having been attached and sold in payment
of his debts, the plaintiff's suit must be dismissed.
When a creditor of a deceased Mahomedan sues the
heir in possession, and obtains a decree against the
assets of the deceased, such a suit is to be looked
upon as an administration suit ; and those heirs of
the deceased who have not been made parties can-
not, in the absence of fraud, claim anything but
what remains after the debts of the testator have
been paid. Nuzeerun v. Ameerooddeen, 24- W. R. 3 ;
Assamathemnessa Bibee v. Roy Lutchmeeput Singh,
J. L. R. 4 Calc. 142 ; Kishwur Khan v. Jewun
Khan, 1 Sel. Rep. 2^ ; Khajah Hidayutoollah v. Rai
Jan Khanvm, 3 Moo. I. A. 295 ; and Bazayet
Hossein v. Dooli Chand, L. R. 5 I. A. 211, referred
to. Mutt Y J an v. Ahmedi Ally

I. L. R. 8 Calc. 370 : 10 C. L. R, 346

8. ^ Suit by creditor

of deceased Mahomedan against his heir — Adminis-
tration, stiit for. In a suit against the widow of a
Mahomedan on the ground that she was in possession
of his estate, and where there were other heirs of the

MAHOMEDAN LAW— DEBTS— confrf.

deceased, held, following the principle laid down
the case of Mutty Jan v. Ahm.ed Ally, I. L.
S Calc. 370, that the suit was properly broug;,
against the widow, and that her liability was to I
measured, not by the extent of her interest in hr
late husband 's property, but by the amount of tj
assets of his estate which had come into her hand
and which she had not duly disbursed in the di
charge of thj liabilities to which the estate wi,
subject at her husband's death. Amir Dulhi
alias Mohamdi Jan v. Baij Nath Singh ah
BAIJT7 Singh . . I. L. R. 21 Calc. 8.

9. Suit by credi^

against representatives. Two of the widows of^
deceased Mahomedan sold a portion of his real est*
to satisfy decrees obtained by creditors of the '•
ceased against them as his representatives. T]>
sale-deed was executed by them on behalf of ra
plaintiff, a daughter of the deceased, she bein^
minor, in the assumed character of her guardiaj.
Held, if the plaintiff was in possession, and was rt
a party to, or properly represented in, the suitsk
which the creditors obtained decrees, she could ^
be bound by the decrees nor by the sale subsequei-
ly effected, and she was entitled to recover jr
share, but subject to the payment by her of jr
share of the debts for the satisfaction of which f
sale was effected. Hamir Singh v. Zakia

I. L.R.I All. 7

Hendry v. Muttylall Dhur

I. L. R. 2 Calc. 2p

10. Succession — l^t

against one of the heirs of a deceased person \r
debt. The heirs to a deceased Mahomedan di^ijd
his estate among themselves according to tjir
shares under the Mahomedan law of inheritances
small debt being due from the estate at the timfiif
division. Two of the heirs were subsequently sjd
for the -whole of such debt. Held, that, inasmjli
such heirs had not by sharing in the estate rended
themselves liable for the whole of such debt, Mc>
medan law allowing the heirs of a deceased pei'n
to divide his estate, notwithstanding a small del is
due therefrom, and as a decree against such Irs
would not bind the other heirs, a decree should it
be passed against such heirs for the whole of i
debt, but a decree should be passed against t m
for a share of such debt proportionate to »e
share of the estate they had taken. Hamir S ?»
V. Zakir, I. L. R. 1 All. 57, referred to. PlRTHi it
Singh v. Husaini Jan . I. L. R- 4 All. 9l

11.

Inheritant —

— Devolution not suspended till payment of*
ceased ancestor's debts — Decree in respect of
ceased ancestor'' s debts passed against heirs in
session of estate — Decree not binding on other r**
not parties thereto and not in possession, so
convey their shares to auction-purchaser in eJf»'
tion — Recovery of possession by other heirs coffi
gent on payment of proportionate shares of
for which decree vas passed. Upon the deat
a Mahomedan intestate, who leaves unpaid f>*3
whether large or small with reference to the val

( 7861

DIGEST OF CASES.

( 7862 )

MA HOMED AN" LAW— DEBTS- cow^rf.

his estate, the ownership of such estate devolves im-
mediately on his heirs, and such devolution is not
contingent upon and suspended till payment of such
debts. A decree relative to his debts, passed in a
contentious or non-contentious suit against only
such heirs of a deceased Jlahomedan debtor as are in
possession of the whole or part of his estate, does
Qot bind the other heirs who, by reason of absence or
other cause, are out of possession, so as to convey to
the auction -purchaser, in execution of such a decree,
the rights and interests of such heirs as Avere not
parties to the decree. In execution of a decree for a
,Jebt due by a Mahomedan intestate, which was
passed against such of the heirs of the deceased as
.were in possession of the debtor'.s estate, the de-
-ee-hokler put up for sale and purchased certain
property which formed part of the said estate.
On. of the heirs, who was out of possession, and
nho v.as not a party to these proceedings, brought
,1 suit against the decree-holder for recovery of a
.share of the property sold in execution of the decree,
,by right of inheritance. Held, by the Full Bench,
,;hat the plaintiff was not entitled to recover from the
iuction-purchaser, in execution of the decree, pos-
session of his share in the property sold, without
such recovery of possession being rendered contin-
, ^ent upon payment by him of his proportionate
share of the ancestor's debt of which the decree
was passed, and in satisfaction whereof the sale
took place. ]Vahidu7inissa v. Sheobr>jttv7i, 'i B. L.
ff. 54: ; Assamathennessa Bihee v. Roy Lutchmeeput
^ingh, I. L. R. i Cede. 14:? j Mazhnr\AU v. Budh
Singh, I. L. E. 7 All. 2'-^i7 ; Bachman v. Bachmav,
l.L.R.HAll. 'j83 ;Hamir Singh Y. Zahia,!. L. R.
1/ All. 57 ; and Mutljyan v. Ahmed Ally, I. L. R.
9 Calc. 370, referred to by Mahmood, J. Javri
'Begam v. Amir Muhammad Khan
j I. L. R. 7 All. 822

12.

Inheritance

Devolution not ftusyended till fuyment of de-

'eased ancestor'' s debts. A creditor of A, a deceased

ilahomedan, under a hypothecation bond, obtained

I decree on the 20th December 1876 for recovery of

li<- debt by enforcement of lien against M, one of

lii'irs, who alone was in possession of the estate ;

m execution of the decree, the whole estate was

liy auction on the 21st March 1878, and pur-

■d by the decree-holder himself. J, another of

heirs, was not a party to these proceedings. On

li-ath, her son and heir, A H, conveyed to M A

I i'^hts and interests inherited by him from his

;ir, — namely, her share in A 's estate. The pur-

-' I- of the share thereupon brought a suit against

decree-holder for its recovery. Held, that,

:<diately upon the death of A, the share of his

,'>tate claimed in the suit devolved upon J ; that she

j being no party to the decree of the 20th December

IS~6, her share in the property could not be affected

'liat decree, nor by the execution-sale of the

-March 1878 ; that upon her death that share

■Ived upon her son, who conveyed his rights

• the plaintiil ; that the plaintiff was therefore

"titled to recover possession of the share which

le has purchased, but that he could not do so

MAHOMEDAN LAW— DEBTS— co»/rf.

without payment to the defendant of his proportion-
ate share of the debts of A, which were paid o5
from the proceeds of the auction-sale of the 21st
March 1878. Jafri Berjum v. Amir Muhammad
Khan, I. L. R. 7 All. .y^2, followed. Muhammad
AwAis V. Har Sahai . . I. L. R. 7 All. 716

13. Liability of one

of severnl heirs to fay ancestors'' debts, ichen but
for his own action debt would be barred by limit-
ation— Justice, equity, and good conscience, afpli-
cation of frinciple of — Act VI of 1S7I, j. 2-'. A,
a Hindu and a creditor of B, a deceased Mahomedan,
sued C, D, E, and F, his heirs, to recover a sum of
money alleged to be due on a roka, alleging that
they were in possession of fi's estate, and praying
for a decree against the estate upon that footing.
It was not disputed that the debt would have been
barred by limitation but for a part payment made by
C, and endorsed by him on the back of the roka. D,
E, and F were no parties to such payment, and it
was found not to have been made with their consent.
The first Court, considering that collusion existed
between A and C, and having regard to the fact
that C did not dispute his liability, gave A a decree
for the full amount of the debt against C without
finding whether the roka was genuine or not, and
held that the shares of D, E, and F in B's estate
Aiere not liable for any portion of the debt. .4
accepted this decision and did not appeal. C ap-
pealed on the ground that he could only, under the
Mahomedan law, be held liable for a part of the
debt in proportion to the amount of B 's estate aa hich
had come into his hands. The lower Appellate
Court decided in C's favour, and varied the decree
by directing that A was only entitled to recover
two-fifths of the debt from C, that being the amount
of C 's share. D, E, and F were not made parties to
that appeal. -.4 then preferred a special appeal to
the High Court, making D, E, and F parties.
Held, that, under the circumstances of the case,
and having regard to the rule of Mahomedan law, A
was not entitled to a decree against C for more than
two-fifths of the debt. //eW, further, that, apply-
ing the principle of justice, equity, and good con-
science to the case, inasmuch as A was a Hindu, it
would not, under the circumstances of the ease, be
equitable to hold C liable for the whole of the debt.

BUSSUNTEKAM MaRWARY i: KaMAI.UDDXX AHMED

I. L. R 11 Calc. 421

14.

Money due by a

deceased Mahomedan — Suit by a creditor against

only one of the heirs of the deceased — Light of suit

— Debtor and creditor. A suit for money due by a
I deceased Mahomedan lies against one of his heirs
! in respect of his share in the property left by the
I deceased, though it may not bind the share of an-
\ other heir. Assamathemunissa Bebee v. Roy

Lutchmeeput Singh, I. L. R. 4 Calc. 142, and Jafri
I begam v. Amir Muhammed Khan, I. L. R. 7 All. S22y

S27, followed. Qucere: Wheth.r, there having
i been no division of the estate, the share of the heir

sued is liable for the whole debt of the deceased.

Bussunteram Marimry v. Kamaluddin Ahmed, I.

L. R. 11 Calc. 421, and Pirlhi Pal Si?igh v. Husaini

( 7863 )

DIGEST OF CASES.

( 7864 )

MAHOMED AN LAW— DEBTS— co^ifc?.
Jan, I.L. R. 4 All. 401, referred to. Amba-

SHANKAR HaRPBASAD V. AlI RaSUL.

I. Ii. R. 19 Bom. 273

15. Mahomedan

jamily — Mortgage by Mahomedan father — Suit
by mortgagee against minor son represented by
mother after mortgagor's death and decree for pos-
session— Some of the heirs not parties — Subse-
quent suit by daughters as heirs of mortgagor for
redemption. When in a mortgage suit the debt
is due from the father, and after his death the
property is brought to sale in execution of a decree
against the widow or some of the heirs of the
mortgagor, and the whole property is sold, then the
heirs not brought on the record cannot be permitted
to raise the objection that they are not bound by the
sale simply because they are not parties to the record.
This principle of law applies as much to a Mahome-
dan family as to a Hindu family governed by the
Mitakshara law. Hari v. Jairam, I. L. R. 14
Bom. ^j97, and Khurshetbibi v. Keso, I. L. R.
11 Bom. 101, referred to and followed. One N
mortgaged his property in 1862 to B and died in
1804, leaving a widow, a son, and two daughters.
In 1864, B (the mortgagee) sued the minor son,
represented by his mother, for possession as owner
under the gahan lahan clause and got a decree on
the 30th September 1864, and obtained possession
in 1865. To this suit the daughters of iV were not
parties. B held the land till 1887, and then sold
it to »S'. In 1890 N's daughters brought this suit
against B and S to redeem the mortgage of 1862,
contending that they were not bound by B's suit in
1864, not having been parties to it. Held, that the
plaintilis could not redeem. They were bound by
the decree obtained by the mortgagee in 1864.
Davalava v. Bhimaji Dhondo

I. L. R. 20 Bom. 338

2g Power of alienation of heir

— Executor — Purchaser from heir. A, a Maho-
medan, died, being indebted to J5 in a sum of money.
B sued the heirs of A for the amount and obtained
a decree. Before B obtained his decree, the heirs of
A had mortgaged the estate of A to C. The pro-
perty was put up to sale in execution of B's decree,
and B became the purchaser, and noM' sued to
obtain possession from C. Held, that the mere fact
of the property having once belonged to the estate
of A did not entitle B to follow it in the hands of C,
so as to enable him to recover possession without
redeeming. The heir of a Mahomedan may,' as exe-
cutor, sell a portion of the estate of the deceased, if
necessary, for the payment of debts ; and such sale
will not be set aside if the purchaser acted bond fide.
Enayet Hossetn v. Ramzan Ali

1 B. L. R. A. C. 172 : 10 W. R. 216

See Hasan Alt v. Mehdi Husain

I. L. R. 2 All. 533

17. __ ^ Sale for debts of

father. M, a Mahomedan, inherited certain pro-
perty from his father, which, while he was a minor,
his mother sold to the defendant, in good faith, for
the discharge of a debt adjudged to be due to the

MAHOMEDAN LAW— DEBTS -CQ/j«i.

defendant by M's father. M, when he became o;
age, sold the same property to the plaintiff, who suec
to obtain possession thereof by avoidance of the sak
to the defendant. Held, that the plaintiff, bavins
no better title or other right than M could assert
was not competent to maintain the suit, svithou'
tendering payment of the debt. Held, also, that
even if Mahomedan law were applied, and M\
mother was not legally competent to sell his pro
perty in the assumed character of his guardian, th<
plaintiff was bound to pay the debt due from M\
father to the defendant before he could claim, \i\
avoidance of the sale in question, the possession d
the property in suit. S.ahee Ram v. MahomeJ
Abdul Rahman . . . . 6 N. W. 26?

18, ■ — — Liability for assets— £fj

dence of receipt of assets. Where it is sought to fi|
a person under the Mahomedan law with liability fq
the debt of a person deceased, by reason of thl
receipt of assets, it is incumbent on the creditor t
give some evidence of assets having been receivep

FUZEELTJTOONISSA V. HOOBMUTOONISSA

Marsh. 218 : 1 Hay 55|

19. Priority. Under the Mahomt

dan law, the estate of a deceased person must b
applied to the payment of his funeral expense
and debts before the heirs can make partition of i'
In this respect, it is analogous to and even strictt
than the Hindu law. The creditors have tb
right to sue such of the heirs as have taken tb
estate, but they are entitled to have recours
to a single heir only in a case where all the effed
are in the hands of that heir. Pathummabi I
ViTTiL Ummachabi (1902) I. L. R. 26 Mad. 73l

20. Partition — Partition >

father's estate between brother and minor sister-Sistc
represented by husband — Debt owing by husband c
off against amount due to his wife — Subsequent su
for entire share — Scope of guardianship — Guardiai
act. Plaintiff's husband had, on the occasic
of her marriage, sent her father R938 for h
benefit, which sum was entered in the father's a
counts to plaintiff's credit. The father died, ai
plaintiff's brother, the defendant, entered the san
amount to her credit. A partition then took pla>
between the plaintiff and her brother, in whic
plaintiff, being a minor, was represented by h
husband. It was found that the husband owe
the estate R 1,700, whilst the estate owed hi
E400, and the net sum due by him was, with t!
minor plaintiff's consent, set off against the su
due by the estate to the plaintiff, and the balan
still due by the husband was allotted to the plaint
as a portion of her share in the estate. On a su
being filed by the plaintiff (after attaining h
majority) for the R938 : — Held, that it was beyoi
the scope of her husband's duty, though he mig
have been plaintiff's guardian during her minorit
to set off a debt due to her from the estate agair
the debt due by himself to it, and that the defea
ant could not rely on that transaction as binding >
the plaintiff. Nor did it make any difference tb

( 78G5

DIGEST OF CASES.

( 7860 )

MAHOMEDAN LAW— DE13TS— fo«fW.

the plaintilf, while a minor, assented thereto. |

The transaction was really in the nature of a i

contract, and the fact that the minor was privy to I

it could not bind her. Hayath Bihimasaheba v. !

SVAHSA Meya (1904) . I. L. R. 27 Mad. 10 ;

Evidence of divorce— Z/im-

MAHOMEDAN LAW— DIVORCE. \

1. Validity of divorce — Release :

of dower by wife — Evidence of divorce. According
to the Mahomcdan law, the non-payment by the |
wife of the consideration for a divorce does not in- ;
validate the divorce. The divorce is the sole act of
the husband, though granted at the instance of the
wife, and purchased by her. The kholanamah, or |
the deed securing to the husband the stipulated con- i
iideration, does not constitute the divorce, but as- •
oumes and is founded upon it. The divorce is '
created by the husband's repudiation of the wife !
and the consequent separacion. The husband ;
having distinctly alleged a divorce by khola, and i
relied on two instruments, — one an ibranamah
(or deed of voluntary release by the wife of her
denmohr or dowry) to which there was no satisfac-
tory proof that she ever gave her assent with a ;
knowledge of its contents, and a kholanamah
(surrendering the wife's settlement) obtained from j
her mother by means of cruelty and ill-usage prac- j
tised on her daughter, to confirm the ibranamah. ^
Held, that instruments so obtained could have no i
legal effect when used as a defence against the wife's i
)laim to her do^vry. Buzl-ul-Ruheem v. Lutee- ;

FCTOONNISSA '

1 W. R. p. C. 57 : 8 Moo. I. A. 379
1 Ind. Jur. O. S. 1

bald's statement. The Mahomedan law does not
provide for the nature of the evidence required to
prove a divorce. Quaere: Whether the husbanc's
Jtatement that he has divorced his wife is sufficient
proof of the fact. Buksh Ali v. Ameerux Bebee
2 W. R. 208

3. Necessity of

vritten document. Although writing is not neces-
>ary to the validity of a divorce under Mahomedan
law, yet where a divorce takes place between persons
jf rank and property, and where valuable rights
iepend upon the marriage and are affected by the
iivorce, the parties, for their own security, may be
•vnpcted to have some document affording satisfac-
I vidence of what they have done. GownuR
Khan v. Ahmed Khan . 20 W. R. 214

. Deed of divorce

'/ in absence of wife, validity of. An instru-

of divorce signed by the husband in the

'uce of, and given to, the wife's father, was held

"- valid, notwithstanding that it was not signed

. ho presence of the wife. Waj Bibee v. Azmttt

Vi 1 8 W. R. 23

5. Marriage, ^^'hcre

I Mahomedan was shown to have been duly
iiarried, her subsequent divorce should not be pre-

MAHOMEDAN LAW— DIVORCE— con/(7.

sumed only from the fact of her husband having
taken another woman to live with him, in conse-
quence of which his wife left his house and went to
live with a relative, nor from the fact of his having
stated in his will that he had no wife, lawful or nicca.
NooR Bibee v. Naivas Khan

1 Ind. Jur. K". S. 221

Right to leave husband-

Man taking another icife. A Mahomedan in the
kubinnamah or deed of dower on his marriage with
»S^stipulated that he should not take a second wife
without the permission of S. Held, that »S' was not
entitled to leave him upon his taking a second wife
without her permission. Mohabuth Ally v. JIy-

monissa Marsh. 361

s.c. Mymonissa v. Mohabuth Ally 2 Hay 404

7. Right of divorce— Suit by wife

for divorce — Agreement for divorce. A husband
entered into a private agreement with his wife au-
thorizing her to divorce him upon his marrying a
second wife during her life, and without her con-
sent. Held, that the Mahomedan law sanctioned
such an agreement, and that the wife, on proof of her
husband having married a second time without her
consent, was entitled to a divorce. Badaranissa
Bibee v. Mafiattala

7 B. L. R. 442 : 15 W. R. 555

Mode of divorce — Charge of

adultery — Ill-usage. A charge of adultery by a
Mahomedan against his wife does not operate as a
divorce, though, if false, it might be an item of ill-
usage towards making up a sutficient answer to his
claim for restitution of conjugal rights. The hus-
band cannot enforce his right to his wife tiU he
pays the dower, in the absence, that is, of any
sufficient answer to his claim. Ill-treatment by
him and his second wife would justify' the first
wife in leaving him. Jaun Beebee r. Beparee

3 W. R. 93

What amounts to

divorce — Revocable divorce. Under Mahomedan
law, no special expressions are necessary to consti-
tute a valid divorce, nor, except when the repudia-
tion is final, need the words be repeated thrice.
If the divorce pronounced is liable to be, but is not,
revoked within the period of iddat, it becomes final.
Ibrahim v. Syed Bibi . I. L. R. 12 Mad. 63

1Q Divorce in absence

of wife. Suit by a Mahomedan female against her
husband for maintenance. Defendant pleaded that
he had divorced the plaintiff on the 8th January
1802. Both the lower Courts found that no divorce
had taken place upon the following facts. Defend-
ant went to Trichinopoly leaving his wnfe at Tinne-
velly. WTiile at Trichinopoly, he received letters
from Tirmevelly informing him that his wife was
leading an immoral life. He therefore went before
the Town Kazi of Trichinopoly, made a written
declaration in the shape of a letter to plaintiff to the
effect that he had divorced her, and repeated the

( 7867 )

DIGEST OF CASES.

( 7868 )

MAHOMED AN LAW— DIVORCE— cow^cZ.

divorce three times successively before the Town
Kazi of Trichinopoly. Defendant directed also that
the letter of divorce should be sent to the plaintiff,
but there was no evidence of her having received
it. Held, upon special appeal, that it was clear
upon the authorities that there had been a valid
divorce. The compressing the expression of the in-
tention into one sentence sjems, on the authorities,
not to affect the legality of the repudiation, al-
though some doctors consider the process immoral.
Sherif Saib v. Usanabibi Ammal 6 Mad. 452

11. Khoola divorce.

Where a Mahomedan woman claimed a divorce from
her husband on grounds which she failed to estab-
lish, but the husband, at the suggestion of the Court,
agreed to a khoola divorce on terms to be settled by
a Kazi :— Heldj that the action of the Court in not
dismissing the suit, but proceeding to suggest a com-
promise by means of a k\oola divorce, was not
illegal. Held, also, that a khoola divorce is valid,
though granted under compulsion. Vadake

VlTIL ISMAI, V. OUAKEL BeYAKUTTI UmAH

I. L. R. 3 Mad. 347

12.

Wife's right of

option, 'non-user of. Under Mahomedan law, where
the husband gives the wife an option as to declaring
herself repudiated and she avails herself of it, the
repudiation or divorce is binding on him. ; and a dis-
cretion to repudiate when attached to a condition
need not be limited to any particular period but
may be absolute as regards time. Such option is
not lost by non-user where there is nothing in the
contract between the parties obliging the -niie to
exercise the oi)tion directly a breach of the condi-
tion occurs. AsHP.tJF Ali i>. Ashad Ali

16 W. R. 260

Pronnnci'ition

The merepronuncia-

of word " talaii " hy husband.

tioD of the word " talak " three times by the hus-
band, without its being addressed to any person, is
not sufficient to constitute a valid divorce by Maho-
medan law. Semhle : That a divorce pronounced
in due form by a man against a woman who is in
fact his wife dissolves the marriage, though he
pronounces it under a belief that she is not his

wife. FURZDND HOSSEIN V. JaJ^TJ BlBEE

I. L. R. 4 Gale. 588

14.

Divorce hy one

acting on comimlsion from threats. According to
Mahomedan law, the divorce of one acting upon
compulsion from threats is etiective. "Ibrahim
MuLLA V. Enayetuk Ruhman

4 B. L. R. A. C. 13 : 12 W. R. 460

Repudiation by

ambiguous expression — Custodi/ of minor children.
Where a Mahomedan said to his wife when she
insisted against his Ansh on leaving his house and
going to that of her father, that if she went she
was his paternal uncle 's daughter, meaning thereby
that he would not regard her in any other relation-
ship and would not receive her back as his wife : —
Held, that the expression used by the husband to the

MAHOMEDAN L A. W— DIVORCE— co»<

wife, being used with intention, constituted, unsr
Mahomedan law, a divorce which became absolutif
not revoked within the time allowed by that h.
Held, also, that the divorce having become absobi,
the parties being Sunnis, that the husband was it
entitled to the custody of his infant daughter u.il
she had attained the age of puberty. Hamid „i
V. Imtiazan . , . . I. Ij, R. 2 AUl

16.

Zihar — M.

form of marriage. Qunre : Whether the form )f
divorce called zihar Uiay be exercised in the mua
form of marriage. In the matter of the petitionf
LuDDUX Sahib A v. Kamar Kudder

I. L. R. 8 Calc. 736 : 11 C. L R. S7

17. Khoja Mahomedans --Cms<;i»i

Custom as to divorce among Khoja Mahomec is
of the Sunni sect considered. In re Kasam Pirh.i

8 Bom. Cr. 5

18. Shiah school — mutta m*-

riage — Gift of term. In a suit brought by a Maj-
medan of the Shiah sect against his wife, beiongg
to the same persuasion, for a declaration lit
the relationship of husband and wife had teii-
nated, and that he was not liable to pay maintena;e
to her, which he had been directed to do by an orsr
passed under the provisions of the Code of Crimal
Procedure, on the allegation that the marriage is
of a rautta form, and that he, on the 22nd Februy
1882, had made hiba-i-muddat (gift of the tera;))f
whatever period there then might remain unexpid,
the wife pleaded, inter alia, that her husband i8
not competent to dissolve the marriage tie wilin
the contracted period without her consent, id
that, if under the Ma,homedan law the consent pis
unnecessary, the Court was bound, in administeiig
justice, equity, and good conscience, to modify ie
strict law in this respect. Held, that, althoughic
ordinary law of divorce does not exist in respeelof
marriages by the mutta form, they c;i,n neverthess
be terminated by the hufband glaring away ae
unexpired portion of the term for which the rr-
riage was contracted, and the consent or acct-
ance on the part of the wife is not necessaryior
the dis«Oiution of the marriage. Mahomed Art
Ali Kumar Kader v. Lttdden SAiniiA

I. L. R. 14 Calc.

19.

Divorce by wife. Under^i

Mahomedan law, a husband may give his lie
the power to divorce herself from him acconsf
to the form prescribed by that law for div f
by the husband. Hamidoolla v. Faizuxniss.
I. L. R. 8 Calc. 327 : 10 C. L. R. 31
20. EflFeet of divorce— /mk-

sihle divorce. According to Mahomedan lavj»
divorce is irreversible if the husband dues not fe
back the wife before the expiration of her "iddl"
or terra of probation. Mozpffur Ai.i v. Kum3^
UNISSA BlBEE . . . . W. R. 1864»

21.

Talak b'iddH

Husband and wife — Order for maintenance y>»
husband— Effect upon order — Presidency Mai-
trate's Act,' IV of 1877, s. 231— Borah M\tt-

( 7809 )

DIGEST OF CASES.

( 7870 )

MAHOMEDAN LAW— DIVOKCE— co«/f/.

medaiii. An order made under s. 234 of Act IV of
1877 by the Presidency Magistrate directing a Borah
Mahomedan husband of the Imami sect to pay

,1 sum monthly for the maintenance of his wife be-
nnging to the Hanafi sect does not deprive the hus-

iband of his right to divorce his wife, and after such
divorce the Magistrate's order can no longer be
enforced. The talak hiddat, or irregular divorce,
which is eflected by three repudiations at the same

lime, appears from the authorities to be sinful, but

'valid. In re Abdul Ali Ishma ilji

I. L. R. 7 Bom. 180

So with an order made under Act XL VIII of 1S60
I Police Amendment Act), s. 10. In rr Kasam
PiRBELAi 8 Bom. Cr. 95

1 22. Maintenance of wife, order

i^or — Criminal f-rocedure Code, 1S72, s. 536 —
' ' Iddai" An order for the maintenance of a
,vife, passed under Ch. XLI of Act X of 1872,
, )ecomcs inoperative, in the case of a Mahomedan, by
leason of his lawfully divorcing his wife, and thus
I jutting an end to the conjugal relation, but it does
lot become so before the expiration of the divorced
.\Tfc's " iddat." Ahdur Rohoman v. Sakhina, I. L.
^H. 6 Calc. •■;,5? ; In re Kasam Pirbhai, S Bom. Cr.
|)5 ; and Luddun SaJiiba v. Kamar Kadar, I. L.
.,?. S Calc. 736 ; Madras High Covrt Proceedings,
. nd December 1H79, referred to and followed. The
iJahomedan law of divorce relating to the mainte-
jiance of a divorced wife during her " iddat " re-
, erred to. In the matter of tlif petition of Din
i'AHOMED . . . I. L. R. 5 All. 226

23.

Hanafi Sunnis — Divorce-

^ahk-ul-bain by one pronouncement in the absence

I the wife — Erecution of talaknama in the pre-

ence of the Kazi — Communication of the divorce

1 the wife — Marz-ul-mnut — Death of the husband

efore expiration of the period of iddat. A, a Maho-

ledan belonging to the Hanad Surni sect, tooii with

ira two witnesses and went to the Kazi and there

renounced but once the divorce of his wife (plaint-

^^) in her ab.-ence. He had a talaknam'i written

;ut by the Kazi, which was signed by him and

'ttested by the witnesses. A then took steps to

lOmmunicate the divorce and make over the iddat

loney to the plaintiff, but she evaded both. A

lied soon after this. The plaintiff thereupon filed

! suit alleging that she was still the wife of A and

l;iimed maintenance and residence. Held, over-

i-'the contention, that the divorce should have

1 pronounced three times, that the talak-ul-

it {i.e., irregular divorce) is good in law, though

in theology. Held, further, in answer to the

' ntion that the divorce was not final as it was

r communicated to the plaintiff, that a bain

. such as the present, reduced to manifest and

' raary writing, took effect immediately on the

writing. The divorce being absolute, it is

'fd as soon as the words are written " even

"Ut the wife receiving the WTiting." In order

establish marz-\il-maut there must be present at

ist three conditions :— (i) Proximate danger of

••ath, 80 that there is, as it is phrased a prepon-

MAHOMEDAN LAW— DIVORCE -con' W.

derance ghaliba oi- hhauf or] a])prehension, that is,
that at the given time death must be more probable
than life : (ii) there must be some degree of sub-
jective apprehension of death in the mind of the
sick person : (iii) there must be some external indi-
cia, chief among which would be the inability to
attend to ordinary avocations. Where an irrevo-
cable divorce has been pronounced by a Mahomedan
husband in health, and the husband dies during the
period of the discarded wife's iddat, she has no
claim to inherit to the husband. Sarabai v.
IUbiabai (1905) I. L. R. 30 Bom. 537

24.

Absence of wife — Talah

— Dower, suit for — Limitation. Under the Maho-
medan Law, absence of the wife dees not make
the pronouncement of talak void and inefficacious.
Furzund Hosseinv. Janu Bibi, I. L. R. 4 Calc. -588,
and Sarabai v. Rabiabai, I. L. R. 30 Bom. 537 ,
referred to and discussed. Ffl Chand v. Nazab
AliChowdhry (190S) . I. L. R. 36 Calc. 184

^ 25.5 ' Marriage contract stipu-
lating wife's option to divorce herself on
husband marrying again, w^hen to be exer-
cised. When a power is given to a wife by the
marriage contract to divorce herself on her husband
marrying again, if the husband does marry again,
she is not bound to exercise her option at the very
first moment she hears the news. The injury done
to her is a continuing one and she should have a
continuing right to exercise the power. The case
is different when such a power is given to the wife
after marriage. Meer Ashruf Alt v. J/eer Ashad
All, 16 W. R. 260, and Nuruddin v. MussiLmmat
Chenuri, 3 C. L. J. 49, followed. Hamidoola v.
Faizunnissa, I. L. R. 8 Calc. 327, applied. Aya-
tunnessa.Beebee V. K-iUAM Alt (1908)

I. L. R. 36 Calc. 23

MAHOMEDAN LAW— DOWER.

/S'ee'DEBTOR and Creditor.

I. L. R. 8 All. 178

See Evidence Act. s. 32.

I. L. B. 19 Calc. 689
L. R. 19 I. A. 157

jSec JiTRisDiCTioN — Causes of Jiki5;dic-
TiON — Cause of Action.

I. L. R. 18 All. 400
See Restitution of ('iinjicm, |;ii;hts.

I. L. R. 8 All. 149
I. L. R. 17 Calc. 670

1. Dower, proof of claim to—

Deed of dower, necessity of — Verbal statement
A deed of dower is not in all cases indispensable
to the truth and validity of a claim for dower.
Semble : There appears to be no reason why a
mukzernamah or statement made (not on oath
before the Court) by parties in a position to know
the facts should not have a certain weight.
Jumulla v. Mulka . 1 Ind. Jur. N. S. 26

S.C. MULLEEKA V. JUMEELA . 5 W. R, 23

( 7871 )

DIGEST OF CASES.

( 7872 )

MAHOMED AN" LAW— DOWER— cowfrZ.

a.c. on appeal to Privy Council. Mulleeka v.

JUMEELA

11 B. L. R. 375 : L. R. I. A. Sup. VoL 135
Tajoo Beebee v. Noorun Beebee 1 W. R. 31
2. Verbal contract

for dower — Customary dower, evidence of amount of.
A verbal contract of dower for a large sum is
admissible only if proved by most clear and satis-
factory evidence. A customary dower must be
proved by showing a custom of the women of the
wife's family to receive, rather than of the men of
the husband's family to pay, a certain dower ;
the Mahomedan dower being the consideration paid
by the bridegroom for the marriage, and therefore
regulated by the position and conduct of the bride,
especially as Mahomedan men often contract most
unequal marriages, though the means and position
of the bridegroom must not altogether be excluded
from consideration. Nujeemooddeen' Ahmed v.

HOSSEINEE 4 W. R. 110

3. Oral evidence in

proof of claim. The very best description of
oral evidence is absolutely necessary to siipport a
claim for dower where no kabinamah ia produced.
HUSEENA V. HUSMUTOONISSA . 7 W. R. 495

Abdool Jtjbbar CnowDHRY V. Collector op
Mymensingh .... 11 W. R. 65

Deed in lieu of dower— Pos-

session — Validity of deed. According to the Ma-
homedan law, possession under a deed of bye-mokasa
executed in lieu of dower is not necessary to its
validity. Nuseeboonissa v. Danush Ali

3 W. R. 133

Payment by husband to

•wife — Presumption of nature of payment — Gift.
Where a husband granted a dower of five lakhs
of Lucknow rupees, and subsequently directed Sicca
rupees 4,50,000 Company's paper to be set aside
for her : — Held, under the circumstances, that this
was to be presumed to be a payment on account
of dower, and not a gift. Iftikarttnissa Begum v.
Amjad Ali Khan . 7 B. L. R. P. C. 643

Right to dower — Where

Mahomedan (Shiah), on his marriage, being in poor
circumstances, fixed a " deferred " dower of R51,000
upon his wife, and died without leaving sufficient
assets to pay such dower, and his wife sued to
recover the amount of such dower from his estate : —
Held, by Stuart, C.J. (Pearson, J., dissenting),
that, it being nowhere laid down absolutely and
expressly by any authority on the Mahomedan law
that, however large the dower fixed may be, the wife
is entitled to recover the whole of it from her hus-
band's estate, without reference to his circum-
stances at the time of marriage or the value of his
estate at his death, the pi lintiff was only entitled,
under the circumstances, to a reasonable amount of
dower. Held, by the Full Bench, on appeal from
the decision of Stu.art, C.J., that a Mahomedan
widow was entitled to the whole of the dower
which her deceased husband had on marriage

MAHOMEDAN LAW— DOWER— con«rf.

agreed to give her, whatever it might amount .,
and whether or not her husband was compa -'
lively poor when he married, or had not left ass.s
sufficient to pay the dower-debt. Sugra Bib
Masuma Bibi . . I. L. R. 2 All. 5J

7. ■ Omission to cla

dower in legacy. According to Mahomedan lawf
the widow assents to any person's taking a lega-
without putting forward her claim to dower, te
cannot afterwards retract her assent. Rezza H -
SEiN V. Ifatoonnissa . . 24 W. R. 5t

Nature of dower— Dower rf

specified. According to Mahomedan law, dowe ,
presumed to be prompt in the absence of expis
contract, and may be enforced at any time. Tad a
V. Hasanebiyari . . . " 6 Ma( J-

9. Suit for dowt-

Dower prompt or deferred — Presumption. Accd-
ing to Mahomedan latv, dower, being considei-
tion for marriage, is, unless payment of the whoUr
part of it is expressly postponed, presume toe
prompt and exigible on demand. Tadiya v. H-
anebiyari, 6 Mad. 9, followed. Masthan Sahi;;.
Assan Bivi Ammal . I. L. R. 23 Mad. fl

10. Exigible dar,.

no amount specified as. Held, where no speiic
amount of dower has been declared exigible, antis
there was no clear evidence of what was custom;.',
that the Assistant Judge in appeal committed o
error in law in nolding that one-third of the wile-
might be considered exigible during the life of le-
husband, the remaining two-thirds being claimde-
on nis death. Fatma Bibi v. Sadruddin

2 Bom. 307 : 2 ad Ed. il

11.

3Iode of payrnt

if divorced — Inheritance. Among Mahomedansj
f erred dower becomes payable on the dissolutioiif
the marriage, whether by divorce or by the deh.
of either of the parties. According to Mahomci.n
law, where the heirs of a woman claimed dower fxn
her husband, which was mowajal, or deferred, id
not due or payable till her death, their claim
a simple money claim founded solely on the contM
made by the husband. The husband is not a trup
for the wife in respect of her dower, nor
wife a lien on her husband's property. Qn
As to the nature of the wife's claim for do
against the heirs of her husband. Mahar
Amani . . . . 2 B. L. R. A. C.

s.c. Khyratun v. Amani

Mehran v. Kubiram

6 B. L. R. 60 note

12. —

IIW. R.

: 13 W. E^d^

Prompt andU-
ferred dower — Custom. Under Mahomedan i^'
when on marriage it is not specified whether a wr S
dower is prompt or deferred, the natme of thed'i''*'
is not to be determined with reference to custom.Wt
a portion of it must be considered prompt. P*
amomit to be considered prompt must be determptt
with reference to the position of the wife andM
amomit of the dower, what is customary being atjua

{ 7873 )

DIGEST OF CASES.

{ 7874 )

MAHOMEDAN LAW— DOWER— row'f?.

same time taken into consideration. Tattfikttn-
KissA V. Ghulam Kambar . I. L. B. 1 All. 506

13. ■ Non-payment of prompt

dower, effect of — Hu--^band and wife — Shiah —
Sunni — Suit for recovery of icife. A •woman of the
Sunni sect of Maliomedans marrying a man of the
Shiah sect is entitled to the privileges secured to her
married position by the law of her sect, and does not
thereby become governed by the Shiah law : — Held,
therefore, where a husband sued to recover his wife,
the one being a Shiah and the other a Sunni, that
the wife's dower being " exigible " dower, and not
(laving been paid, the suit was not maintainable
under Sunni law. Nasrat Husain v. Hamidax

I. L. R. 4 AU. 205

14.

Suit for resti

lUion of conjugal rights — Custom — Prompt and
kferred dower. When a Mahomedan sues his wife
'or restitution of conjugal rights, such suit is to be
determined with reference to Mahomedan law,
ind not with reference to the general law of
•ontract. Under Mahomedan law, if a wife's
lower is "prompt," she is entitled, when her
lusband sues her, to enforce his conjugal rights,
0 refuse to cohabit with liim, until he has paid
ler her dower, and that notwithstanding that she
'aay have left his house Avithout demanding her
',ower and only demands it when he sues, and
'lotwithstanding also that she and her husband
'lay have already cohabited with consent since
'heir marriage. When at the time of marriage
16 payment of dower has not been stipulated to
e ' deferred," payment of a portion of the dower
'lustbe considered "prompt." The amount of
'ach portion is to be determined with reference to
ustom. Where there is no custom, it must be
etermined by the Court with reference to the status
>i the wife and the amount of the dower. Where a
lourt, following this rule, determined that one-
'fth only of a dower of R5,000not stipulated to

? 'deferred" must be considered " prompt," inas-
nuch as the wife had been a prostitute and came
': a family of prostitutes, it exercised its discretion
^undly. EiDAN v. Mazhar Hctsain

I. L. R. 1 All. 483

15. — Restitution of

njvgal rights. A Mahomedan cannot, according to
jahomedan law, maintain a suit against his wife

r restitution of conjugal rights, even after such
(insummation witji consent as is proved by coha-

tation for five years, where the wife's dower is
.prompt " and has not been paid. Abdool Shuk-
'w V. Buheem-oon-nissa, 6 N. W. 9-1, followed.

(ILAYAT HUSAIN V. AlLAH RaKHI

I. L. R. 2 All. 831

^^- ^ Marriage — Suit

"stitution of conjugal rights — Plea of non-pay-
C>U~Form of decree. According to the Maho-
(«ian law, marriage is a civil contract, upon the
loipletion of which by proposal and acceptance, all
|5 rights and obligations which it creates arise, im-
jdiately and simultaneously. There is no authority

•the proposition that all or any of these rights
r| VOL. III.

MAHOMEDAN LAW— DOWER— con/rf.

and obligations are dependent upon any condition
precedent as to the payment of ilower by the hus-
band to the wife. Dower can only be regarded as the
consideration for connubial intercourse by way of
analogy to price under the contract of sale.
Although prompt dower may be demanded at any
time after marriage, the w ifc is under no obligation
to make such demand at any specified time during
coverture, and it is only upon such demand being
made that it becomes payable. This claim may be
used by her as a means of obtaining payment of the
dower, and as a def(mce to a claim for cohabita -
tion on the part of the husband without her consent ;
but, although she may plead non-payment, the
husband 's right to claim cohabitation is antece-
dent to the plea, and it cannot be said that until
he has paid prompt dower his right to cohabitation
does not accrue. The sole object of the rule allow-
ing the plea of non-payment of dower is to enable
the wife to secure payment. Her right to resist
her husband so long as the dower remains unpaid
is analogous to the lien of a vendor upon the sold
goods while they remain in his possession, and so
long as the price of any part of it is unpaid ; and her
surrender to her husband resembles the delivery of
the goods to the vendee. Her lien for unpaid dower
ceases to exist after consummation, unless at such
time she is a minor, or insane, or has been forced,
in which case her father may refuse to surrender her
until payment. It cannot in any case be pleaded so
as to defeat altogether the suit for restitution of
conjugal rights which is maintainable upon the
refusal of either party to cohabit with the other ; and
it can only operate in modification of the decree for
restitution by rendering its enforcement conditional
upon payment of so much of the dower as may
be regarded as prompt, in accordance with the prin-
ciple recognized by Courts of equity under the
general category of compensation or lien, when
pleaded by a defendant in resistance or modification
of the plaintiff's claim. Buzloor Buheem v. Shum-
soon-nissa Begum, 11 Moo. LA. ■'>■'> 1 ; Mull eka
V. Jumeela, 11 B. L. R. 37-5 ; Khajooroonissa v.
Ryeesoonissa, L. R. 'J I. A. 236 ; Aawab Bahadur
Jung Khan v. Uzeez Begum, N. IF. S. D. A. {L^J3)
46, p. ISO ; J ami Bibee v. Beparee, 3 W. R. 93 ;
Gatha Ram Mistree v. Mohita Kochin Atleah
iJoomoonee, 14 B. L. R. 29S ; and Eidan v. Mazhar
Husain, I. L. R. 1 All. 4S3, referred to. Abdool
Shukkoor v. Raheem-oon-nissa, 6' N. W. '■ 4 ;
miayat Htisain v. Allah Rakhi, I. L. R. 2 All
831 ; Nasrat Husain v. Hamidan, I. L. R. 4 All.
206 ; and h'asir Khan v. Umrao, All. Weekly Notes
{l^S2],9f), dissented from. In a suit brought by
a husband for restitution of conjugal rights, the
parties being Sunni Mahomcdans governed by
the Hanafi law, the defendant jilc.ulcd that the suit
was not maintainable, as tlu- piaintill had not paid
her dower-debt. The piaintill tliorcupon depo.sited
the whole of the dower-debt in Court. It appeared
that the defendant's dower had been fixed without
anj' specification as to whether it ^\as to be wholly
or partly prompt. It also appeared that she had
attained majority before the marriage, and that
she had cohabited with the plaintiti for three

11 S

DIGEST OF CASES.

MAHOMED AN LAW— DOWER— cow^rZ.

months after marriage and there was no evidence ;
that she had ever demanded payment of her dower ;
before the suit was tiled, or that she had refused ]
co-habitation on the ground of non-payment. ■
Besides the plea already mentioned, she cilso relied j
upon allegations of divorce and cruelty, bsit these
allegations were found to be untrue. The lower
Appellate Court dismissed the suit, holding that,
inasmuch as the plaintiff had not paid the dower-
debt at the time when he brought his suit, he had
no cause of action under the provisions of the
Mahomedan law :— //eZfZ by the Full Bench, that
the lower Appellate Court's view of the Maho-
medan law relating to conjugal rights and the
husband's obligation to pay dower was erro-
neous ; and that the plaintiff, under the circum-
stances of the case, had a right to maintain the suit.
Abdul Kadir v. Salima . I. L. R. 8 All. 149

17. — i^uit by husband

for restitution of conjugal rights— Duty of wife to
cohabit with husband — Non-fayment of dower.
Suit by a Mahomedan to recover possession of his
wife, the defendant. Defendant pleaded that she
was not bound to return to plaintiff until plaintiff
paid R42 prompt for dower, which plaintifi promised
to pay by the marriage contract and had not paid.
The lower Courts, following Eidan v. Mazhar
Husain, I. L. R. 1 All. -JSS, dismissed the suit.
Held, on appeal, that defendant could not refuse
cohabitation on the plea that her dower had not
been paid. Abdul Kadir v. Salima, I. L. R. S All.
149. followed. Kunhi v. Moidin 1

I. L. R. 11 Mad. 327 |

18. Suit for dower — Cause of

19.

Exigible dower

action. In a suit by a Mahomedan widow to recover
from the heirs of her husband the amount of dower
which became due to her after her husband 's death, .
the cause of action must be deemed ti have arisen
at the time when she wa s ejected by order of ("Jourt
from the property left by her husband, and which
she held as i-ecurity for the satisfaction of her dues.
SooRMA Khatoon v. Attaffoonnissa Khatoon

2 Hay 210

• — Olau.<;e of action — Deferred dower. According to
Mahomedan law, mojar or exigible dower is payable i
on demand at any time from the consunnnation of j
the marriage up to the death of the wife, and a suit j
preferred by heirs for their mother's niojal dower I
will be in time if brought within twelve years of the I
mother's death. Mowajal or non-exigible or defer-
red dower is claimable on the dissolution of the [
marriage either by death or divor re. Shares of I
dower when received by the legal inheritors thereof
cease to be dower, and become part of the
recipient's estate. Hosseinooddekn Chowdhrv [
V. Tajunnissa Khatoon . W. R. 1864, 199 [

20. Prompt and

deferred dower. A Mussalman, on his marriage, I
entered into a written agreement (unregistered) with |
his wife to pay her a lakh of rupees, one-fourth as '
prompt (mojal) dower, the remainder as deferred
(mowajal) dower. A separation occurred between

MAHOMEDAN LAW— DOWER— co««d.

the husband and wife, but there was no divorci
During the separation, on ^Jrd May 1861, the wii
petitioned for leave to sue as a pauper to recover tt
balance of her prompt dower : — The husband, on tb
1st July 1861, tiled a petition denying her clau
against him. The wife's application to sue as
pauper was rejected on 27th January 1862. Tb
husband died on 30th August 1867. On the l;tt
May 1S69 the widow brought her suit to recover tl
balance of prompt dower and the whole of tb
deferred dower : — Held, that she could recover tb
latter. 'J"he cause of action in respect of deferrd
dower could not arise until the husband's deatr
But the cause of action in respect of prompt dow«
arises upon demand by the wife and refusal by tlj
husband. Khajarannissa v. Risannissa Begu!'
5B..L. R. 84 : 13 W. R. 3 ;

21. Limitation — Z)

vorce. Where dower is " prompt," limitation dol
not begin to run until -the dower is demanded <
the marriage is dissolved by death or otherwis
The amount claimed, — viz. R 16,25,000, nothavi:
been disputed in the Court of original jurisdictio
was allowed. Qurrre : Whether, in the case of
divorce, a cause of action accrues in respect
deferred dower before the repudiation has becor
irrevocable, or the dower has been demaijdfj

MULLEEKA V. JUMFELA . . 11 B. L. R. S'!

L. R. 1. A. Sup. Vol. i;

s.c. in lower Court, Jumeela v. Mulleeka

W. R. 1864, 252 : 5 W. R. H
1 Ind. Jur. N. S. 3-

22. Exigible dov

— Demand — Application to sue in forma paupe'
— Cause of action. The prompt or exigible dower;
the Mahomedan law may be regarded as a de>
always due and demandable during the subsisteri*
oi the marriage, and certaiiJy payable on demar,.
On a clear and unambiguous demand by the wifes
paj^ment, and refusal by the husband to pay siA
dower, a cause of action accrues, against whi
hmitation begins to run. An application undei
299, Act VIII of 1859, by a Mahomedan woman f
leave to sue her husband for exigible dower, in for*
pauperis, may be taken to express her intentionji
bringing an action for dower only if she obtains le£^
to do so as a pauper. Until she has the Couw
permission to sue, her application does not amoip
to a demand by way of action. A counter-petit*
Ijy the husband objecting to the pauper suit b(
allowed, and denying his liability to pay the d<;'^
does not alter the character of the proceedings, s;
no opposition on his part can constitute a causf-^
action unless there has been a previous demands
the wife ; the option being with her to demand «
dower or not, and to elect her time for demand*
it. Khajaranxtssa v. Saifootxa Khax

15 B. L. R. 306 : 24 W. R. ^
LA. 25

L. R.2

Reversing the decision that the suit, as regapc
the prompt dower, was barred by limitation in K
jaranxissa v. Risannissa Begttm

5 B. L. R. 84 : 13 W. R. i

{ 7877 )

DIGEST OF CASES.

MAHOMEDAN LAW— DOWER— cow/cZ.

23. Demand — Limit-

iHion. A Mahomedan of the Shiah sect by a deed of
dower charged his whole estate with a certain sum
when demanded by his wedded wife, but did not
impignortite his estate to secure the sum put in
settlement. The dower was not demanded during
the lifetime of the husband, and his widow at his
death took possession of his estate in satisfaction of
her claim : — Held, by the Sudder Dewany Court,
and such decision on appeal confirmed by the Privy
Council, that the widow had a lien upon her deceased
husband's estate as being hypothecated for her
(loi\er, and could either retain property to the
amount of her dower or alienate part of the estate
in satisfaction of her claim. Held, also, that a
demand in the lifetime of the husband was not
iiecessary, and that, though more than twelve years
had elapsed from the date of the deed and the
time the widow set up her claim for dower, the claim
was not barred by limitation. Ameeb-oox-Is'ISSa v.
.MoRAD-ooN-NissA . . 6 Moo. I. A. 211

24.

Genuineness of

Icabinnamah — Right to sue without certifiGate under
Act XXVII of 1860, s. 3— Prompt and deferred
(lower. The appellant, one of the royal family of
Oudh, sued his father, the respondent, for R50,000
as his share of the dower alleged to have been settled
on his mother, the late Oomrao Begum, who left as
her heirs her husband (the appellant), her only son,
and three daughters, who were made joint defend-
ants. The plaintiff's case was that the dower
being unpaid, he, as co-heir, became entitled to
three-tenths ; but, having regard to the circum-
stances of the husiaand, he had limited her claim.
The respondent disputed the genuineness of the
^ kabinnamah and the amount of the alleged dower,
' pleading that whatever was its amount it had been
'. satisfied during the lifetime of Oomrao Begum.
, The first Court decreed the suit, but the lower
^ Appellate Court, holding that the defendant had
^ established his plea of satisfaction, reversed the
decision : — Held, that the mehrnamah was a
genuine document, and that the dower was of the
I amount alleged by the plaintiif, subject to modifica-
tion according to the law and practice in Oudh ; but
that, as plaintiff had taken out no certificate under
, Act XXVII of 1860, s. 3, the case shovild be remitted
to the Judicial Commissioner to have it ascertained
what amount of dower was payable by the respond -
■t to the estate of his deceased wife, and what,
■I- payment of debts, was the share of dower
to each co-sharer. Where it is not expressed
' ther the payment of the dower is to be prompt
I'ferred, the rule is to regard the whole as due on
land. Qucere : Where no time for the payment
Inferred dower is expressly limited by contract,
' t it be presumed to be payable on the death of
i-r husband or wife, or only on the death of the
band ? Bedar Bukht Mohummud Ali v.
1 1 RRUM Bukht Yahya Ali Khan

19 W. R. P. C. 315

25.

Lien for dower — Fixing of

iimunt of dower. On an issue, whether an oral gift

MAHOMEDAN LAW— DOWER— ton<d.

of an estate, consisting of certain talukhs and mou-
zahs, had been made by a Mahomedan proprietor in
favour of his wife, the gift having been stated to
have been made in consideration of a dower of a cer-
tain amount, which remained unpaid, it was not
necessary to affirm in the decision that that amount
of dower had been agreed upon prior to the mar-
riage. It is not necessary to constitute dower by
Mahomedan law that the dower should be agreed
upon before marriage ; it may be fixed afterwards.
Kamarunnisssa Bibi v. HussAixr Bibi

I. L. R. 3 All. 266

26. Lien of widow

against heir — Amount of dower unascertained.
In a suit against the two widows of a deceased Ma-
homedan, who had obtained a certificate of adminis-
tration to his estate under Act XXVII of 1860, the
plaintiff claimed a 12-anna share of the estate, and
prayed for the possession with mesne profits from the
death of the deceased. The widows claimed to have
their dower first satisfied. The amount of the dower
had not been ascertained. Held, that the widows
had a lien for their dower on the estate, and the
plaintiff was not entitled to recover possession so
long as any portion of the dower remain unsatisfied.
This was so, though the amount of the dower was
unascertained. Ahmed Hossein v. Khadija

3 B. L. R. A. C. 28 note : 10 W. R. 369
Tajim v. Wahed Ali . . 22 W. R. 118
NoTJSHA Begum v. Umrao Begum . 7 N. W. 60

Atahur Ali v. Altaf Fatima

10 W. R. 370 note

27.

Mahomedan

widoiu — Widow^s heir — Determination of amount
of dower. A Mahomedan widow lawfully in pos-
session of her husband's estate occupies a position
analogous to that of a mortgagee, and her possession
cannot be disturbed until her dower-debt has been
satisfied, and after her death her heirs are entitled
to succeed her in such possession, and if wrongfully
deprived thereof, to maintain a suit for its recovery.
Held, that the ruling of the Court in Balund Khan
V. Janne, 2 N. W. 319, that where a defendant is
found to be in possession of landed property in lieu
of dower, and it is held that the plaintiff is not en-
titled to sue for possession of the property until such
claim for dower has been satisfied, it is not necessary
to determine the question of the amount of such
dower, the matter being one which could be settled
properly in a suit for an account of what was due as
(j_ower,— -was not applicable to a case where the
plaintiffs seeking to recover possession did not claim
as heirs of the widow's husband, but as heirs of the
widow herself, and where the decree for possession
passed in their favour would remain undisturbed
even if an amount less than that fixed by the lower
Appellate Court were found to be what was due as
dower. Azizullah Khan v. Ahmad Alt Khan

I. L. R. 7 All. 353

Consent of heim

to possession of widow — Suit iy heir claiming

11 S2

( 7879 )

DIGEST OF CASES.

MAHOMEDAN LAW— DOWER— cowW.

possession without payment of proportionate share
of douer — Burden of proof as to nature of widow's
possession.. Held, per Btjrkitt, ,/, that where a
Mahomedan widow is in possession of the pro-
perty of her deceased husband, having obtained
such possession la'wfully and without force or
fraud, and her dower or any part of it is due and
unpaid, she is entitled as against the other co-heirs
of her husband to retain possession of such pro-
perty until her dower-debt is paid. It is immate-
rial to such widow's right to retain possession
that such possession was obtained originally with-
out the consent of the other co-heirs. Bachun v.
Hamid Hosscin, 14 Moo. I. A. 377 ; Aziz-v.Uah
Khan v. Ahmad Ali Khan, I. L. B. 7 All. 353 ; and
Tajin v. Wahed Ali, 22 W. R. 118, referred to.
Amani Begam v. Muhammad Kartini-tjllah Khan
I. L. R. 16 All. 225

Held, in the same case on appeal under the
Letters Patent by Edge, C.J., and Baxeejt,
J. — When a Mahomedan ■widow is in possession,
and has been for some time in undisturbed posses-
sion, of property which had been of her husband in
his lifetime, and dower is admitted or proved to be
due to her, it lies upon the heir who claims partition
without payment of his ])roportion of dower to prove
that the Mahomedan widow was not let into posses-
sion by her husband in lieu of dower, or did not
obtain possession in lieu of dower after her hus-
band's death with the consent or by the acquies-
cence of the heirs. Muhajmmad Kartm-fllah
Khax v. Amam Begam . I. L. R. 17 All. 93

29. Law in Oudh — Punjab Code.

The -widow of a Mahomedan in possession of her
husbands estate under a claim of dower has a
lien upon it as against those entitled as heirs,
and is entitled to possession as against them, till
her claim of dower is satisfied- According to the
Punjab Code (held to be in force in Oudh in the
years 1859 and 1860), the dower mentioned in a
marriage contract (in.stead of being enforced as an
absolute deed as claimed by the appellant) was
subject to a modification at the discretion of the
Court, both in the case of a divorce and on the death
of the husband. Mi'lkah Do Alum Nawab Taj-
DAE Bohoo v. Jehax Kudr

2 W. R. P. C. 55 : 10 Moo. I. A. 252

30. The heir of a

deceased Mahomedan having dispossessed the widow
of deceased, who was in possession in lieu of. doM'er
takes the estate subject to her lien for the amount
of her dower. Amed Ali v. Saffihan

3 B. L. R. A. C. 175

So does a purchaser from her son, and the pur-
chaser cannot dispossess the widow in possession in
lieu of dower. Bukday Ali Khan v. Chotee
Bibee 1 Agra 273

31. — Laiv in Oudh —

Discretionary poirer of the Courts over the amount
of dower— The Oudh Laus Act {XVIII of 1876),
6. 5. In a suit by a wife for her dower the Appellate
Court altered the amount decreed by the first Court

MAHOMEDAN LAW— DOWER— conid.

as a reasonable sum payable in lieu of an excessivi
one, which the husband had on the date of the marri
age nominafiy entered in a nikahnama as tht
wife's dower. Both Courts acted under the Oudl
Laws Act (XVIII of 1876), s. 5. The Judicia
Committee, having examined the grounds on whicl
each of the Courts had exercised its discretionary
power, considered the reason given by the firs'i
Court to be sound and restored the decree. Sule
MAN Kadr'i;. Mehdi Begum St-rreya Baku

I. L. R. 21 Gale. 13f
- L. R. 2C I. A. 144

32. Oudh, latv oi

relating to reduction in amount of dower — Deter
mination of amount of deferred dower recoverab'\
from representatives of deceased husband marrit,
in, but a non-resident of, Oudh, not affected by hi),
of that Province — Usage having force of lau\
A Mahomedan, a resident in Patna, since deceased
married the plaintiff, while he was for a time ii
Lucknow where she lived. Upon her claim, as hi
widow, for her deferred dower, it was found to hav(
been contracted for at the amount alleged by heij
The question of the amount of her dower was held ti
be determinable without reference to a usage haviti;
the force of law in Oudh, rendering dower reducilil
in certain cases by the Court. The place of celebra
tion of the marriage did not make this applicable
Zakeri Begum v. Sakina Begum

I. L. R. 19 Gale. 685
L. R. 19 I. A. 15'

33. Effect of Oud

Laws Act (XVIII of 1876), s. 5. Advantage Cj
the Oudh Laws Act, XVIII of 1876, s. 5, pointed ouft
as giving the Courts discretion to fix an amount oj
dower as being " reasonable -with reference to thj
means of the husband and the status of the wife,]
instead of making the decree for the amount oj
dower contracted for, however extravagant thai
amount may be. Collector op Moradabad i
Haebans Singh . . . I. L. R. 21 All. l1

34.

Lien on estate of husbi

Where the widow of a Mahomedan obtained actus
and lawful possession of the estates of her husban
under a claim to hold them as one of the heii
and for her dower, it was held that she was er
titled to retain possession until her dower
satisfied, with the liability to account to those ei
titled to the property subject to the claim for tl
profits received. Bachun r. Hamid Hossein

10 B. L. R. 45 : 14 Moo. I. A. 37
17 W. R. 11

35.

Widoiv in po

session in lieu of dower — Charge on estate for doui
\^Tiere a Court holds that a defendant is i
possession of certain landed property in lieu <
dower, and that the plaintiff is not entitled to si
for possession of the proi^erty until such claim f'
dower has been satisfied, it is unnecessary to detei
mine the question of the amount of such dowc
plaintiff having pleaded that the dower had bee
surrendered. A Mahomedan widow is entitled to

( 7881 )

DIGEST OF CASES.

i-2 )

MAHOMEDAN LAW— DOWER— cojiit/.

lien for whatever dower remains due to her, al-
though there may be a dispute as to what is the
amount actually due, having reference to the amount
originally tiled as dower, or to the amount satisfied
by payments. An heir to a share of the estate is not
entitled to recover possession from the widow so
long as any portion of the dower remains unsatis-
fied, nor can he be entitled to mesne pofits, but his
proper course is to bring a suit for an account of
what is due as dower, and to pray that in satisfaction
of that amount he may be put into possession of his
share of the estate. Payment of the widows, like
every other debt, must be made before the estate
can be distributed amongst the heirs. Balund
IKhan I'. Janee . . . . 2N.W. 319

See Ufzool Begum v. Ladlee Begum
I 2 N. W. 325

md Imdad Hossein v. Hosseinee Buksh

2 N. W. 327

36. . - Right of ividow

'o possession against heirs. A widow, who is not
Dntitled to more than her legal share in her hus-
band's estate, has no right to the exclusive posses-
iion of the entire estate, unless it be found that she
.vas put in possession of the entire estate either by
ler husband or by the consent of the other heir or
icirs in lieu of dower. Ameerun v. Ruheemun

2 Agra Ft. II, 162

I Where it is so found, she has such right. Kur-
;em Buksh Khan v. Doolhin Khoord

15 W. B. 82

37.

Hypothecation-

'kng. Reg. VII of 1832. The widow's claim for

lower under the Mahomedan law is only a debt

.gainst the husband's estate. It may be recovered

lom the heirs to the extent of assets come to their

lands. It does not give the widow a lien on any spe-

' ific propertjr of the deceased husband so as to enable

iier to follow that property, as in the case of a mort-

';age, into the hands of a bond fide purchaser for

alue. Semble : Under the Mahomedan law, there

\i not hypothecation without seisin ; but a creditor,

I -hether widow or any other creditor, if in possession

f the husband's property with the consent of the

.ebtor or his heirs, might hold over until the debt is

aid ; and the cases cited to show that the widow had

right to hold until her dower was paid off pro-

eededon this principle. Per Hobhouse, J. — It is

ery questionable whether the Court is bound to

pply the Mahomedan law to this case under the

rnvisions of Regulation VII of 1832, the case not

' mg one of succession, inheritance, marriage, caste,

!■ religious usage, but simply one of contract.

* AHIDUNNISSA V. ShUBRATTUN

6 B. L. B. 54 : 14 W. R. 239

MAHOMEDAN" LAW— DOWER— coH<rf.

38.

Right of u-idow

"<session for doiver as against heirs. A Maho-
m widow, even though she have a valid claim
■Aver against her husband's estate, cannot take
- ssion of the estate as against the heirs, but
•- sue them regularly for the amount due to her.
uAMUT V. Mowla Buksh . . 5 W. R. 194

39. Dispossession of

widow — Wasilat. The widow of a Mussulman, in
possession of her husband's estate under a claim of
dower, has a lien upon it, and is entitled to posses-
sion as against those entitled as heirs, till her claim
is satisfied. Should the widow in .such a case be
deprived of possession by a decree in favour of heirs
who take- with notice of her claim to dower, and
more particularly where her right to sue has been
expressly reserved, the heirs take subject to a lien of
which the property is not divested by the decree.
Held, by the Appellate Bench, that in a case in
which a Mahomedan widow had, after many years
of possession as above, been compelled to make
over one-sixth of her estate to her mother-in-law,
and then sued her mother-in-law for one-sixth of
her dower without interest, she was entitled to
recover her claim without reduction on account
of wasilat. Woomatool Fatima Begum r.
Meeruxmunnissa Khanum . 9 W. R. 318

40.

Assignment to wife in lieu

of dower — Subsequent decree affecting share-
Priority of assignee over decree-holders. WTrere a
person had by deed assigned his share to his wife
in lieu of dower, and the assignee had be^n put in
possession of the share so assigned to her under the
decree of the Court -.—Held, that the reduction of
shares by any subsequent decree would not affect th.-
assignment, and if at all affected, she (assignee)
would be entitled to have the same extent of land
made up to her out of whatever other interest her
husband or his heirs may have had in the estate ;
that her right would be prior in time and preferable
to any that could be set up by a creditor under a
decree, subsequent to assignment, and that the
plaintiffs who purchased from the assignee were
consequently entitled to decree. Dhun Singh r.
RamSuhai 2 Agra 39

41. Relinquishment by son in

favour of mother for her unpaid dower.
The Privy Council reversed so much uf the ilecision
of the High Court as ruled that the effect of an
arrangement between the plaintiff and her son, by
which the son relinquished his share in his late
father's property, was not that the mother took an
absolute interest in the property in satisfaction of
her claim for unpaid dower, but that she should
have only a life-interest, the son retaining the legal
reversion in himself ; the Privy Council being of
opinion that the creation of such a life-estate did
not seem to be consistent with Mahomedan usage,
and that there ought to be very clear proof (which
had not been shown in this case) of a transaction
so unusual and so improbable amongst Mahome-
dans. A widow's claim for unpaid dower, when
it does not, by virtue of a bye-mokusa executed by
her husband,' become a preferential charge on the
estate, constitutes a debt payable pari passu with
the demands of other creditors. Hameeda v.
BuDLUN . . . 17 W. R. P. C. 525

42. - Widow out of, or in wrong-

ful, possession. \\ here she is not in possession
or her possession is unlawful, her right is to demand

[( 7883

DIGEST OF CASES.

( 7884

MAHOMEDAN LAW— DOWER— cowfrf.

the amount of her dower from the heirs : such
amount being realizable from their shares of the
estates, like other debts, in the usual course of law.
Meekun v. Najeebun . . .2 Agra 335

43.

of widow

deprived of estate by heir. Where a IWahomedan
widow was improperly deprived of a portion of such
estate under a decree in a suit by an heir of her
husband, the question as to her right of dower hav-
ing been before the Court, but not disposed of by the
Judge in that suit : — Held, that the heir must be
treated as having taken the property subject to a
right of lien which was not divested by the decree
in the former suit. Janee Khantjm v. Amatool
Fatima Khantjm ... 8 W. B. 51

44. Inheritance — Transfer by

tvidow in possession in lieti of dower — Right of
purchaser — Heirs. Held, that a purchaser of a
deceased husband's estate from a Mahomedan
widow, in possession thereof, pending payment of
her dower, is not entitled to plead not- satisfaction of
her dower-debt to a claim by her husband's heirs for
their share of his inheritance, as the widow's right to
dower is personal to herself and does not pass to a
purchaser of the estaite. Bachan v. Humid Hossein,
10 B. L. R. 45, and Bazayet Hossein v. Dooli
Chand, L. R. 5 I. A. 211, referred to. Alt Mtt-
HAMMAD Khan v. Aziztjllah Khait

I. L. R. 6 All. 50

45.

Nature of widow's lien for

dower. The lien which a Mahomedan widow
whose dower is unpaid m-a.\ obtain on lands
which have belonged to her deceased husband is a
purely personal right, and does not survive to her
heirs." Ali MuJiammad Khan v. Azizullah Khan,
I. L. R. 6 All. 50, and Apiha Begam v. Nazir
Ahmad, All. Weekly Notes (1S90) llo, referred to.
Hadi Ali v. Akbar Ali . I. L. E. 20 All. 262

46, Right of mortgagee prior

to suit for dower. A Mahomedan dying, his
son N, who was in possession of the whole of the
deceased's property, mortgaged it to secure repay-
ment of money advanced to him by the mortgagee.
In the following year the three widows of the de-
ceased brought a suit against N to assert their right
of dower, obtained a decree, and in execution
attached and sold the property, and, buying it
themselves, got into possession. The mortgagee
then brought a suit to obtain from the wddows the
property which he had purchased. Held, that until
the widows brought their suit the property in N's
hands was not subject to a lien or charge in favour
of them, and that it passed free from incumbrances
to the mortgagee as a bond fide purchaser for valu-
able consideration. Held, also, that the plaintiff was
entitled to so much of the property as was N's
share. Begum v. Doolee Chund . "20 W. R. 93

47. Widow taking possession

against the consent of the other heirs. If
a Mahomedan widow entitled to dower has not
obtained possession of property of her deceased
husband lawfully, that is, bv contract with her

MAHOMEDAN" LAW— DOWER— conJd.

husband, by his putting her into possession, or -
her being allowed with the consent of tlie heirs i
his death to take possession in lieu of dower, a 1
thus obtained a lien for her dower, she cannot obta
that lien by taking possession adversely to the oth
heirs of property to the possession of which th(,
and she in respect of her share in the inheritan',
are entitled. Bachnn v. Hamid Hossein, 14 Moo..
A. 377 ; Wahid-vn-nissa v. Shabrattun, 6 B. L. .
54 ; Bazayet Hossein v. Dooli Chand, I. L. R.l
Calc. 402 ; L. R. 5 I. A. 211 ; Meerun v. Najeebx,
2 Agra (1867) 335 ; Ali Muhammad Khan v. .42-
ul-lah Khan, I. L. R. 6 All. 50 ; and Mehrun .
Kubeerun, 13 W. R. 49 : 6 B. L. R. 60 note, -
ferred to. Woomatool Fatima Begum v. Meerii^
mun-nissa Khanum, 9 W. R. 318 ; Ahmad Hos< ■%■
V. Khodeja, 10 W . R. 369 ; 3 B. L. B. A. C.3
note and Bolund Khan v. Janee, 2 N. W. U.
1870), 319, distinguished. Amakat-un-nissa L
Bashir-un-nissa . . I. L. R. 17 All. T

48. Suit by heirs of Mat-

medan widow for her dower — Alienation f
property of the deceased husband by his heirs p,-
dentc lite. While a suit for the dower-debt due tj*
Mahomedan widow was pending on behalf of ir
heirs, the heirs of her deceased husband mortgad
certain property which had been of the deceaseda
his lifetime. The heirs of a widow obtained a dece
which could only be executed against the assets f
the deceased husband. Held, that this decree kk
priority over the mortgagee's decree and a sale hi
in execution thereof. Bazayet Hossein v. DH
i Chand, I.L. R. 4 Calc. 402. Yasin Khax^
! Muhammab Yae Khan . I. L. R. 19 All. 5i

' 49. Mortgage by w^idow i

possession in lieu of dower of immovea^e
property which had been of her husbai.
A Mahomedan widow in possession of immoveaje
property of her late husband in lieu of her doj-r
has no power to mortgage svich property. Cnifi
BiBi V. Shams-un-nissa BiBi I. L. R. 17 A11.9

50. Power of widow to alien e

share of which she is in possession in l:a
of dower — Suit to avoid alienation. Held, th& A
widow in possession of the share of her deceased b-
band's heirs in lieu of dower is not competenlto
alienate it, and the heirs can sue for the avoidn ^
of such transfer made by the widow. Maho:-

USSUDOOLLAH KhAN V. GhASHEEA BeEBEE

1 Agra :

They cannot, however, claim jiossession before
dower is paid. Azeemun v. Asgtjr Ali

2 Agra Ft. II, '/I

51. Share by rigM

inheritance. Held, that a widow who is in possesun
of her husband's estate in lieu of her dower is it
competent to alienate the whole estate permanensr,
but can only sell what belonged to her by righbf
inheritance. Kummur-ool-nissa Begum v. Ma>-
MED HussuN ... 1 Agra $T

52. Power of mother in possft-

sion of daughter's shares in husbanf»>

( 7885 )

DIGEST Of cases.

( 7886 )

MAHOMEDAN LAW— DOWER— co«^r?.

estate in lieu of dower — Dnughters tvithout im-
medifte right. Hold, that the mother who is in pos-
session of her daughter's shares in her husband's
estate in lieu of dower, is not at liberty to sell them
and the sale can be invalidated, although the daugh-
ters may not be entitled to immediate entry upon
their shares. Ghufoorun Bebee v. Mustukedeh
2 Agra 300

53.

Purchase of property by-

wife out of money given on account of
dower — Husband and wife. Under the Mahome-
dan la^^ , a wife may (except with fraudulent intent)
puichase property as her own during her husband's
lifetime with money given to her bj^ him on
account of dower. Nasoo v. Mahatal Beebee

4 W. R. 7

54.

Claim for dower — Suit on a

mortgage executed by judgment-debtor — Decree for
sale — Decease of judgment-debtor — Sale by Court —
Attempt by purchaser to obtain possession — Resistance
by widow on grouid that her dower formed a charge on
the land. A widow's claim for dower under Maho-
medan law is not a lien on her husband's property,
such as is obtained by a mortgage, hat rank? on s.
par with ordinary debts. Ameer Ajimal v. San-

EAEANAKAYANAN ChETTY (1901^

I. l1 R. 25 Mad. 658

55.

Widow in posses-

sion in lieu of dower — Widow not precluded from
suing to recover her doiver. Held, that there was
nothing to prevent a Mahomedan widow, who was
in possession of property of her late husband in lieu
of dower, from suing to recover her dower from the

i heirs of the deceased husband. Aziz-idlah Khan v.

, Ahmad All Khan, I. L. i?. 7 All. 353, referred to.

jGhulam Ali v. Sagir-ul-nissa Bibi (1901)

, I. L. R. 23 All. 432

56.

Priority of decree for

dower — Dower — Decree for doiver against heir of
deceased MaJwmedan — Decree held by creditor
\against heir personally — Civil Procedure Code, s.
v29.5. a Mahomedan widow obtained against the
(Other heir of her deceased husband a decree for her
idower payable out of the estate of the deceased,
ind in execution thereof attached certain pro-
perty of the deceased in the hands of the heir. A
'Creditor of the heir, having obtained a money decree
Jgainst the heir for his personal debt, subsequently
jittached the same property in execution of that
;iecree. Held, that, although the widow^ could not
n virtue of her decree for dower claim a charge
|:>n any specific property of her late husband, her
Jecree for dower was entitled to priority over the
leci-ee against the heir for the heir's personal debt,
[lor was the creditor of the heir entitled to the
benefit of the provisions of s. 295 of the Code of
^Jvil Procedure. Yasi7i Khan v. Muhammad Yar
'i*an, /. L. R. 19 All. ■04, distinguished. Eaza-
''al Hossein v. Dooli Chand, I. L. R. 4 Calc. 402 :

L. R. .', I. A, 211, and Kinderley v. Jeriis, 22
L referred to. Bhola Nath v. MAQBULtrx-

M1904) . . . I. L. R. 26 All. 28

MAHOMEDAN LAW— DOWER— ro«/(/.

57. Rights of widow in pos-

session in lieu of dower— Shias— Succession

— Widow. A Mahomedan widow in possession of
immoveable property of her deceased husband in
lieu of her dower has only a lien on the property to
secure payment of the dower debt : she has no trans-
ferable interest in the property. Mussuramat
Bebee Bachmi v Sheihh Hamid Hossein, 14 Moo. I.
A. 377, and Hadi Ali v. Akbar Ali, 1. L. R. 20 All.
202, referred to. Muzaffar Ai.i Khax v. Parhati
(1907) . . . . L L. R. 29 All. 640

58. Wife's death in husband*s

lifetime — Deferred dower — Right accrues to heirs
of v:ife nftfr hr death— Cau^e of act on not joint

— Suit by one of heirs — Other heirs necessary parties
— .Joinder of an heir after time — Limitation —
Limitation Act {XV of IS:,), s. 2 — Joint covenant
— Right of action when joint and when several.
When a Mahomedan wife, who has not been divorced
by her husband, dies during the husband's lifetime,
the right to sue for her deferred dower accrues for the
first time to her heirs. The cause of action is not a
joint one and any of the heirs ma}' sue the husband
separately for his or her share. But in such a suit
the presence of all the heirs is necessary in order
effectually and completely to adjudicate upon the
claims of the several heirs. Where in a suit by one
such heir, one of the remaining heirs was not made
a party defendant till after the period of limitation
applicable to the suit had expired : Held, that s. 22
of the Limitation Act was no bar to the suit, as no
relief was sought against the latter and her presence
was only required for the effectual and complete
adjudication of the claims of the several heirs.
Semble : Even if the interest of the heirs of the
deceased was a joint interest as the defendant, the
husband, was himself one of the heirs, the cause of
action must be taken to have been split up. MooK-
ERJEE, /. — The question whether a contract is
joint or several or joint aiid several is a question of
intention to be determined by considering not onl\-
the language but also the interests and relations
of the parties. It is the intention of the parties
that the obligation is to be indivisible, there is a
joint right which is vested in several persons and
which must be enforced by them jointlv. Ishaij v.
Akramul Huq (1907) . . 12 CJ. W. N. 84

59. Remission of dower by
widow — Doiver — Remission effective without ac-
ceptance by the heirs of husband — Money spent
for the benefit of another — Obligation to repay.
According to Mahomedan !aw a dower is a debt
and its remission by a widow without acceptance
by the heirs of the husband is effective. It is
not in every case in which a man has benefited
by the money of another, that an ol^ligation to
repay that money arises. Ram Tuhul Singh v.
Eiseswar Lall Sahoo, L. R. 2 1. A . 131, and Ruabon
Steamship Company v. London Assurance, [I'.l/O]
A. C. I', 15, referred to. Jyani Begam v. Umrav
Begam (1908) . . L L R. 32 Bom. 612

60. Contract for dower — Dower

prompt and deferred — Agreetnejit by father onbehalf of
minor son — Evidence of intention — Khanadamad—

( 78S7 )

DIGEST OF CASES.

( 7888 )

MAHOMEDAN LAW— DOWER— co/ic/i.

Pin-money, clriim for, hi/ heir — Limitntion — Executor
a triostee — Costs. When the executor of a deceased
Mahomedan woman is her husband who was under
an agreement to pay her a certam dower, he cannot
avail himself of thc'ordinary period of limitation
of three years as a simple debtor and avoid the pay-
ment of the dower to the heirs of the deceased.
Under the Mahomedan law, a father has the power
to make a contract for dower on behalf of his infant
sons and the contract so entered into is binding,
even though it was made after the marriage. The
amount named in an agreement for the payment of
dower must be paid irrespective of the husband's
means and the husband cannot be allowed to go into
evidence to show that the parties to the contract
did not mean to insist upon the payment of the
dower but something else. Sugra Bibi v. Musurna
Bibi, I. L. R. 2 All. 513, followed. A fixed sum of
money agreed by the husband, at the time of
the marriage, to be paid monthly to the wife as
pan dan (pin-money) was considered to be in the
nature of a personal allowance ; and, if the wife
failed to claim and recover the same during her
life-time, her heirs could not, after her decease,
recover the ^^ame from her husband as a part of the
assets of her estate. When the hearing of a pai'ti-
tion suit was prolonged entirely on account of
contentions raised by a defendant in which he
failed, he was ordered to pay to all parties the costs
of hearing on subsequent days after the first day.
Basir Ali v. Hafiz Nazir Ali (190S)

13 C. W. N. 153

MAHOMEDAN LAW— ENDOWMENT.

See Custom ... 1 Bom. 36

See Mahomedan Law — Mosque.

See Mahomedan Law — Waqf.

See Right of. Suit — Charities and
Trusts . ' L L. R. 20 Gale. 810

1. Creation of endow^ment —

Verbal endowment. According to Mahomedan law,
a valid endowment may be verbally constituted
without any formal deed. Shurbo Narain Singh
V. Ally Buksh Shah . . . 2 Hay 415

2. Charges on profits

for definite period. The primary objects for which
lands are endowed under the Mahomedan law are to
support a mosque and to defray the expenses of
worship therein. The mere charge upon the profits
of an endowed estate of certain items which must
in time cease, and the lapse of which will leave the
whole profits available for the purposes of the
endowment, does not render an endowment invalid
under the Mahomedan law. Muzhurool Huq v.

PUHRAJ DiTAREY MOHAPATTUR . 13 W. R. 235

3, Words declara-
tory of appropriation — Motive. The chief elements
of wukf are special words declaratory of the appro-
priation and a proper motive cause ; and where the
declaration is made in a solemnly, published docu-
ment, the wukf is completed. DoyalChund MuL-
LiCK V. Kekamut AiA 16 W. R. 116

MAHOMEDAN LAW— ENDOWMENT

contd.

4. Lands set apd

for support of wMsque. The payment of expenses t
a mosque out of the rents of certain property is n;
proof of itself that the property is endowed. ShuI-
ooNNissA V. Koolsoom . . 25 W. R. 4<'

5. Grants for svbsi-

ence. Grants to an individual in his own right, a I
for the purpose of furnishing him with the means f
subsistence, do not constitute a work for endo-
ment. Kuneez Fatima v. Saheba Jan

8 W. R. 3}

6. Wukf—Constr:.

Hon of deed of cndoivment — Settlement on per^
and his descendants to three generations, and aft-
wards to cfutrity — Appropriations of property /
settlement. A Mahomedan settled a portion of s
immoveable property as follows : " I have m^
wukf the remaining four annas in favour of ^
daughter B and her descendants, as also her descei-
ants' descendants' descendants, how low soev,
and when they no longer exist, then in favour of ?8
poor and needy." Held, this settlement did it
create a valid wukf. To constitute a valid wu,
there must be a dedication of the propertyj scA^
to the worship of God or to religious or charitaa
purposes. Semble : Appropriations in the nat«
of a settlement of propertj^ on a man and his d-
cendants can only be treated as legitimate app-
priations under the designation of wukf where e
term " sadukah " is used. Even supposing tty
could be so treated, it would be necessary, in or*r
to validate a wukf by making a settlement of p-
perty on himself or his descendants, for a mano
reduce himself to a state of absolute povei .
Mahomed Hamidulla Khan v. Lotful Huq

I. L. R. 6 Caic. 744 : 8 C. L. R. U

W nJ:f—Settlemt

on man and his descendants. Semble : To ci-
stitute a valid wukf according to Mahomedan lavft
is not sufficient that the word " wukf " be use(^n
the instrument of endowment. There must be ap-
dication of the property solely to the worship of (O
or to religious and charitable purposes. A Mai-
medan cannot therefore, by using the term "wur*
effect a settlement of property upon himself |d
his descendants, which will keep such prepay
inalienable by himself and his descendants for ek.
Held, that the plaintiffs, who were sons of a daugltf
of one of the original settlors, ^lid not come wifU
the meaning of the term " aulad dar aulad " or|ie
terra " warrasan," used in the instrument of setfe-
ment. Abdul Ganne Kasm v. Husse.v ma
Rahimtula . . . . .10 Bonp
8. . Wukf— Pen-
sion, delivery of — Gra7it of endowed property, fo
constitute a valid " wukf," or grant made C«
charitable and religious purposes, it must, aecordg
to the doctrine of the Shiahs, be absolute andla-
conditional, and possession must be given of p*
" mowkoof," or thing granted. Where a Mahoje-
dan lady executed a deed conveying her propjy
on trust for religious purposes, reserving to hcFii

( 7889 )

DIGEST OF CASES.

( 7890 )

MAHOMEDAN LAW— ENDOWMENT—

contd.

for life two-thirds of the income derivable from the
property, and only making an absolute and un-
conditional grant of the rest for the purposes of the
trust : — Held, that, under the Mahoraedan law, the
deed must be considered invalid with respect to that
portion of the income reserved by the grantor to
herself for life ; but as to the rest, that the deed
operated as a good and valid grant. Kai.ttb Hos-
SEiN V. Mehrum Beebee . . 4 N. W, 155

9. ■ Widf—Mutwali

— Right to sue. A iMahomedan of the Shaft sect,
by a deed of settlement executed in 1838, called a
wukfnamah, settled moieties of his estate on his two
wives, their daughters, and the descendants of the
donees in each line so long as it should subsist, -with
cross remainders, on the extinction of either line, to
the representatives of the other, with final remain-
deVs on the extinction of both to the heirs of the
settlor. The settlor constituted himself the nazir or
mutwalli (superintendent or trustee) of the estate
during his life, and nominated A and B to act as
such after his death with the consent of his wives.

, In 1840 the settlor died ; A died in 1805 ; B survived.

, The wives and daughters of the settlor also died.
The representatives of one of the settlor's daughters

. sued the defendant to recover a part of the estate,
which had been sold to him by the Civil Court, as
the property of another of the daughters, on the

■ ground that the estate, on the death of that daugh-
ter, passed as wukf to her surviving sister. Held,
that, supposing the wukf to have been validly

I created, the right to bring the suit belonged (accord-
ing to Mahomedan law), nor to the heirs or des-
cendants of the settlor, but to the mutwallis
(superintendents) jointly. On the death of one oi

I the mutwallis, a successor to him should have been
appointed in the first place by the settlor, and, fail-
ing him, by his executor, if he had appointed yan,
otherwise by the Court on the application of the
iparties beneficially interested in the estate. (Jwosre .•
Whether a wukf could be created for the purpose
.merely of conferring a perpetual and inalienable
instate on a particular family without any ultimate
^^xpress limitation to the use of the poor or some
I Hher inextinguishable class of beneficiaries. Phate

ivDEB BiBI V. DaMODAR PrEMJI

I. L. B. 3 Bom. 84

10.

Charitable object

-'<ubject of wukf — Shares in company. Accord-

ns to Mahomedan law, a wukf cannot be created

f -hares in a limited liability company. A wukf,

Durpose of which is to create a mere family

inent without a charitable object, is invalid.

■I Gunne Kasam v. Hmsen Miya Rnhimttda, 10

7, and Mahome/l Hnmididln Khan v. Bad-

M Khatoon, 8 C. L. R. 164, followed. Fatima

■■"EE V. Arif Ism.\ii,jee Bham . 9 C. L. R. 68

i 11. Wakf—Provi-

<^>'i (or payment of debts and maintenance — Minor
'fifl — Guardian. A Mahomedan created a wukf
I his property, and appointed his minor grand-
mutwali, providing that during the minority

MAHOMEDAN LAW— ENDOWMENT—
contd.

the property should be managed by the minor's
father. The deed contained a provision that,
in the first place, certain debts should be paid, and
then provided that the property should be applied
towards the religious uses created and the mainte-
nance of the settlor's grandson and their male issue.
In execution of a decree against the minor's father,
the endowed property was attached and sold. In
a suit by the minor through his sister, as guardian,
to recover possession of the property, in which suit
the sister was not made guardian ad litem by an
order of Court, but was allowed to sue by the Dis-
trict Judge : — Held, that the suit was maintainable
as framed. Held, also, that, notwithstanding the
provisions for payment of debts and maintenance,
the wukf was valid. Luchmipct Singh v. Amir
Alum . I. L. R. 9 Gale. 176 : 12 C. L. R. 22

12.

-Grant to grantees

and their aulad va ahfad — Meaning of the word
" ahfad " — Wukf — Tavh/at and sajjadana.shin,
right of fetmles to hold the offices of. A certain
village was granted by the Mogul Government in
inam to two persons and their "aulad va ahfad"
for the maintenance of a durga (mausoleum) of a
pir (saint). The plaintiff and the defendant were
the descendants of the original grantees. In 1878
the plaintiff sued the defendant for the recovery
of the profits of a one-fourth share in the inam,
claiming to be entitled thereto through his mother
and grandmother, who was the daughter of the son
of the great-grandson of one of the two original
grantees. It was contended (inter alia) for the
defendant that the expression " aulad va ahfad "
used in the grant would include only the lineal male
descendants, and not the plaintiff, who claimed
through females, who were incapable of performing
the spiritual offices connected with the mausoleum.
The Court of first instance dismissed the plaintiff's
claim. He appealed and the lower Appellate Court
allowed his claim to the extent of one-eighth share.
On appeal by the defendant to the High Court : —
Held, confirming the decision of the lower .Appellate
Court, that the plaintiff was entitleil to share both
in the offices of the durga and the endowment.
The term " ahfad," being a term of the largest and
most general signification, includes the descendants
of females as well as of males. The primary
object of the grant was to provide for the tavlyat
and the office of sajjadanashin of a mausoleum of the
saint, and with that view to supply the means for
the maintenance of the persons who should perform
the offices, as well as for the ordinary expenses of
keeping up the mausoleum. A female coujd not
be the sajjadanashin, whose duties were of a strictly
spiritual nature requiring peculiar personal quali-
cations so as to exclude female descendants from
participating in the endowment ; but it would
not follow that males who establislicd their descent
from the propositus through females should be
excluded. Had the intention of the grant in the
present case been to limit the class of descendants
exclusively to persons claiming through males, the
expression "_^aulad dar aulad" would have been used

{ 7891 )

DIGEST OF CASES.

( 7892 )

MAHOMEDAM" LAW— ENDOWMENT—

contd.

instead of the general expression " aulad va ahfad."
Hussain Beebee v. Hussain Sherif, 4 Mad. 23, and
Mujavar Ihrambibi v. Mujavar Hussain Sherif, I. L.
B. 3 Mad. 95, distinguished. Karimodin v. Alam
Khan . . . . I. L. B. 10 Bom. 119

13. Wulcf, essentials

of — Increase in value of wuhj 'properties hovj appro-
priated. Where by a sanad a gift was made of the
then income of certain villages with a specification
that one-third of it was for the defrayal of the
expenses of the servants of a mosque, and fursh and
light, etc., one-third for the expenses of a madrassa,
and the remaining one-third for the maintenance
allowance of the mutwalli : — Held, that the gift
complied with the four essential conditions neces-
sary to create a valid wukf according to Mahome-
dan law. Held, also, that, in the absence of any
express direction as to what was to be done with
any surplus profits of the dedicated property, the
reasonable presumption is that the improved value
of the dedicated property, or any excess of profit
over and above the amount stated in the sanad, was
intended by the grantor to be devoted to the same
purpose for which the amount, which was the
actual value of the property at the time of the gift,
was expressly assigned. Jugatmoni Chowdrani
V. RoMJANi Bibee" . I. L. B. 10 Calc. 533

14. Wukf— Descent

per stirpes — Grant in inam to grantee and children
without restriction as to names — Direction to pray
for perpetidty of Government. A sanad of the
Emperor Shah JeJian, dated A.D. 1651-52, granted
in inam to one Sayad Hasan the village of Dharoda
and certain lands of another village in these terms :
" Let the whole village abovementioned, as well as
the abovementioned land, be hereby settled and
conferred as above, manifestly and knowingly, as a
help for the means of subsistence for the children of
the abovementioned Sayad Hasan without restric-
tion as to names, in order that, using the income
thereof from season to season and from year to year
for their own maintenance, they may engage them-
selves in praying for the perpetuity of this ever-
enduring Government." Held, that this grant did
not constitute wukf or a religious endowment,
making the village descendible to the issue of the
donee per stirpes (that is, allowing representation)
rather than according to the ordinary Mahomedan
law ; and the direction that the donee and his issue
were to pray for the perpetuity of the then existing
Government meant no more than an inculcation of
gratitude for the gift ; and that neither neglect to
fulfil the direction nor the downfall of the Govern-
ment would work a foiieiture or avoidance of the
grant. Although a wazifa gi'ant may be a religious
endowment, such is neither necessarily nor even
generally its nature. Hence the use of the term
" mauzif " {alias " wazif " or " wazifa "), with
regard to the giant of a village, does not stamp the
grant as a wukf or religious endowment. Maho-
med Ali v. Gobar Ali . I. L. B. 6 Bom. 88

15. • Wukf—Poicer

of revocation — Reservation of rents and jyrofits to

MAHOMEDAN LAW-

C07ltd.

-ENDOWMENT-

donor for life — Ultimate dedication of property t
charity with intervening private interests — Rul
against perpetuities how far applicable in a colon
subject to English law — Charities, what are-
Trust for maintenance of idol, for benefit of pom
for building tanks — Dedication by minor — Subsi
quent ratification — Estoppel. A wukf must be cei
tain as to the property appropriated, unconditiona
and not subject to an option. It must have a fin;
object which cannot fail, and this object must be ej
pressly set forth. When a -n-ukf is created, tb
reservation in the deed of settlement of the annu;
profits of the property to the donor for life does m
invalidate the deed. If, however, there is a provisif
for the sale of the corpus of the property and
appropriation of the proceeds to the donor, t
settlement is invalid- If the condition of an ultimai
dedication to a pious and unfailing purpose be sati
fied, a M-ukf is not rendered invalid by an inte
mediate settlement on the founder's children an
their descendants. The benefits these successive)
take may constitute a perpetuity in the sense of tl
English law ; but according to the Mahomedan la->
that does not vitiate the settlement, provided tl
ultimate charitable object be clearly designate-
The rule against perpetuities extends to a coloij
in which English law is enforced only so far as 'it'
adapted to the circumstances of the communit
The case of " charities useful and beneficial " to tl
community is an exception to this rule. It is for tl
Comts to pronounce whether any particular obja
of bounty falls within this class. In order to dfidk
this question, they must, in general, apply t
standard of customary law and common opini.
amongst the community to which the parties i
terested belong. Objects which the English k
would possibly regard as superstitious uses m
allowable and commendable according to Mahow
dan lavi'. A trust for the benefit of the poor, f
aiding pilgrimages and marriages, and for t«
support of wells and temples, is a charity amon<{'
Mahomedans. The law and opinion of Mahomedaj*
regard such a trust as a charity ; and granting th(f
is a charity, the objection to a perpetuity m
according to the principles of the Enghsh 1*
Where the proposed object of the endowments
one which is directly contrary to the public 1''
of the State, the above rule does not apply,
an indenture of voluntary settlement, dated 1'
March 1866, F, a Mahomedan girl of the age
fourteen, conveyed certain immoveable property
the Island of Bombay to trustees upon trust—
During her life-time to pay the rents and profit-
her for her sole and separate use without powei
anticipation, (ii) After her death to pay the r.-
and profits to her children and descendants as jc
might by deed or will appoint. In default of r
pointment the tnistees were to pay life-allowar•^
to such descendants at their discretion. The r-
and profits only were to be thus distributed am
such descendants for ever, the corpus of -
property being kept intact, (iii) In case there shc^a
be no such descendants, or in the event of fail"*

( 7893 )

DIGEST OF CASES.

( 7894 )

MAHOMED AN LAW— ENDOWMENT—

contd.

of such descendants, the rents and profits were
to be expended on charitable purposes, such as ex-
penses of poor pilgrims going to Mecca, building
mosques, funeral and marriage expenses of poor
people, sinking wells or tanks, or in such other
manner as the trustees should think fit. Shortly
after the execution of the settlement, the trustees
took possession of the property, and for fifteen 3^ears
continued to pay the rents and profits to the settlor.
The settlor was married in 1866 to H, and there was
issue of the marriage only one son, who died in
1872, an infant under the age of five years. H died
in 1872, and the settlor remained a wdow. In
1881 she became desirous of revoking the above
settlement, and under s. 527 of the Civil Proce-
dure Code (Act X of 1877) she stated a case for
the opinion of the Court, contending that she could
1 la\vfully revoke the trusts declared by the said inden-

• ture; that if she could not revoke, then that the
I trust therein declared in favour of charity was void

, for remoteness ; and generally that she was, under

i the circumstances, entitled to have the property
reconveyed to her by the surviving trustee. Held,
that the settlement was irrevocable. The dedica-
tion, ha\nng been once made, could not be recalled-

1 The interposed private interests, which might or
• might not endure, did not avoid the ultimate charit-
able trust. According to Mahomedan law the latter
gave effect to the former. Should the intermediate

^ purposes of the dedication fail, the final trust for
charity did not fail with them. It was but accelerat-
ed, being itself regarded as the principal object, in
\Hrtue of which effect was given to the intervening

, disposition. Charitable grant being thus tenderly
regarded, it would be inconsistent that a power of
revocation should be recognised in the grantor.

, Held, also, that, although the dedication by a girl of
fourteen was not to be upheld without inquiry, yet

: the transaction never having been questioned by her
hu-sband during his life, and she having for fifteen

. years confirmed her own act by a continued accept-
ance of the profits of the estate from the trustees,
could not with reason contend that the dedication
was mvalid on account either of its ceremonial
defects or of a want of an accompanying volition.
FATM.4BIBI V. Advocate General of Bombay

I. L. R. 6 Bom. 42

16.

Wukjnftma-

li nhj — Perpetutiij — Lltimate trust in favour of

■t'j. M, the father of the three defendants.

iited an instrument purporting to be a wukf-

i in favour of his heirs and descendants,

ration after generation. The office of mutwalli

-served for himself for life, and, in the event of

I'ath, he appointed his wife and joungest son E

^allis, Mith certain powers of delegation, upon

I illowing conditions : The said mutwallis, having

t' I'lved the annual income of the property and

'laving defrayed the expenses of repairs and the

jaxe.?, etc., were to divide the balance into four equal

hares, and to make over one share to his son S and

jiis descendant after descendant for their expenses ;

ne share, in like manner, to his son H ; one share,

MAHOMEDAN LAW— ENDOWMENT—
contd.

in like manner, to his son E ; and as to the remaining
share, to pay one-half thereof to his wife, A, for
expenses, and one-half thereof to his sister for ex-
penses. The deed then proceeded : " If any one
from among m3' heirs and (? or) descendant after
descendant should die, then the said mutwallis
shall make his or her funeral outlays according to
our custom and usage ; and as to what may remain
as a balance, they shall duly distribute and give
the same to my heirs and descendants according to
the book of God." Further as follows : " Maj' God
forbid it ! If from among my heirs and descendants
there shall be left no one surviving, then, as regards
the income of the whole of the property endowed
for religious and charitable purpo.ses, the same
for the sake of God, is duly to be distributed and
given to Mahomedan fakirs and indigent people."
Then followed a direction that the property was not
to be sold or mortgaged. On the 25th i'ebruary
1883 the first two defendants mortgaged the pro-
perties comprised in the ■noikfnama to the plaintiff
for R 3,000. The plaintiff brought the present suit
against the said two defendants to enforce the mort-
gage. The third defendant was made a defendant
at his own request, and alleged that the mortgage
had been made without his consent. He sub-
mitted whether, having regard to the terms of the
deed, the plaintiff had any claim as mortgagee,
and he contended that in no case could the mort-
gage operate, except against the shares of the first
two defendants. The plaintiff contended that the
■mikfnama was invalid, and that upon the death of
M the property comprised in it devolved upon his
three sons as his heirs, and also that, assuming the
wukfnama to be valid, the first two defendants took
an estate of inheritance under it, which they were at
liberty to aliene and mortgage. Held, follo\^ing,
Fatmahihi v. Advocate Geveral of Bomhaij, I. L. R.
n Bom. 4-:, that the deed of the 17th May 1S71 was
valid as a wukfnama. Simhh : '1 hat the mortgaged
property being wukf, the plaintiff acquired no right
under his mortgage, which would extend beyond the
life-time of his mortgagors. In such property no
one has any interest as the heir of the appropriator.
It is neither the subject of om nership nor inheritable,
but each object of the charity who hruigs himself or
herself within the terms of the endowment is en-
titled to receive the benefit which the founder has
marked out for him. Amrutlal Kalidas v. Hrs-
SEiN .... L L. R. 11 Bom. 492

17.

Wukf —Settle-

vient in favour of the setllor''s family icithout any.
■ultimate trust for charity — Document not establish-
ing a trust for a religious or charitable purpose.
A Mahomedan cannot settle his property in MTikf on
his o^Mi descendants in perpetuity without making
an express jjrovision for its ultimate devolution to a
charitable or religious object. A ilahomedan exe-
cuted a deed, called a wukfnama, by which he settled
his property in wukf on his two wives and daughters
and their descendants in pei-petuity. For the man-
agement and devolution of this property he laid down
the following rules : (i) that if one of the aulad (oc

7895

DIGEST OF CASES.

MAHOMED AN LAW- ENDOWMENT—

contd.

daughters) of either wife died, the share of that
person should go to the wife and the survivors of her
aulad ; that after the death of a wife her share
should go to her surviving aulad ; that if a wife and
her aulad ceased to exist, their share should go to the
other wife and her aulad ; that on the failure of aulad
an aflad of both wives, the next of kin of the settlor
should receive the property ; and he added that in
this way the management should go on from genera-
tion to generation ; (ii) that neither of the said two
wives nor any one of the aulad of the wives should
alienate by sale, gift, or mortgage either their shares
or any part of the property. A portion of this pro-
perty, consisting of two nafars, was set apart for
such purposes as the building of his own tomb, the
saying of prayers, the recitation of the Koran, etc. ;
and he directed that in case the produce of the two
nafars proved insufficient for these purposes, his
wives and daughters and their descendants should
contribute out of the property settled in wukf on
them. Held, that, with the exception of the two
nafars set apart for religious pui-poses, the rest of the
settlement was not a vaid wukf, as it was solely
for the benefit of the settlor's family, and contained
no express provision for the ultimate devolution of
the property to any religious or charitable object.

NiZAMUDIN GULAM V. AbDUL GaFUR

I. L. R. 13 Bom. 264

Held, on appeal by the Privy Coimcil, affirming the
above decision, that the instrument could neither be
maintained as establishing a wukf, nor as a settle-
ment : also that it could not be suppoited as a will,
Bot having been validated b}' consent of heirs, as
to two-thirds of the succession ; and that, even if
it could have been dealt with as a will, the above
pi'ovision would have been void. A wukfnama,
to be valid, must be a substantial dedication of
property to a. religious or charitable purpose at some
time or other. Mahomed Ahsnnulla Chowdhry v.
Amarchand Kundu, L. R. 17 I. A. 2S : I. L. R.
17 Cole. 49S, referred to and followed. Abuul
Gafur v. Nizamudin . . I. L. R. 17 Bom. 1
L. R. 19 I. A. 170

18.

A appropriation

not within the principle of wukf — Property settled
on members of grantor'' s family with a charge upon
it for religious and charitable pwposes — Effect of
appropriation where the charge vjus not a substan-
tial one. Although the making provision for the
grantor's family out of property dedicated to reli-
gious or charitable purposes may be consistent with
the property ))eing constituted wukf, yet in order to
render it wukf the property must have been sub-
stantially, and not merely colourably, dedicated to
such purposes. Although an instrument purport-
ing to dedicate property as " fisabilillah wukf "
and vesting it in members of the grantor's family in
Buccession " to carry on the affairs in connection
with the wukf," might include provisions for the
benefit of the grantor's family without its operation
as a wukf being annulled, yet, on the other hand, it
would not operate to establish wukf, as it did not
<icvote a substantial part of the property to religious

MAHOMEDAN LAW— ENDOWMENT-

tontd.

or charitable purposes. Without determining hov
far provisions for the grantor's family might forn
part of a settlement for religious or charitable pur
poses, and yet not deprive it of its character as es
tablishing wukf, the Committee approved the deci
sion in Muzhurool Huq v. Puhraj Ditaren Moha
pattur, 13 \V. R. 23'), to the effect that the mer
charge upon the profits of the estates of certair
items Avhich must in the course of time have ceased
being for the benefit of one family, did not render ai
endowment invalid as a wukf. In the present cast
however, there being no authority for holding a gif
to be good as a wukf without there being a substan
tial dedication of the property to charitable o
religious uses at some time or other, and the us^-
prescribed involving only an outlay suitable f
such a family to make in charity, the gift was hel
not to be a substantial or bond fide dedication of tb
property as wukf. The use of this exprcssioi
and others, being only to cover arrangements fc
the benefit of the family and to make their propert
inalienable, the property was not constituted wuki
nor was it freed from liability to attachment i
execution of a decree against one of the grantee.
Mahomed Ahsanulla Chowdhry v. Amarcuan
Kundu . . . . I, L. R. 17 Caie. 49
L. R. 17 I. A* 2

19.

Wukf, const

tution of — Dedication of property with temper
intermediate intere>>tfi — Uncertain contingency. 1
constitute a valid wukf, there must be a dedic
tion in favour of a religious or charitable purpo?
although there may be a temporary intermedia
application of the whole or part of the benefits thoi
of to the family of the appropriator or wukf, a;
the dedication must not depend upon an uncerta
contingency, such as the possible extinction of t
wukf's family. Kasamaya Dhur Chowdhtj
V. Arul Fata Mahomed Ishak

I. L. R. 18 Caie. Zi

20. ■ Wukf, con^

tution of — Dedication to pious objects — Sajja
nasJii^— ■ .M utwalli — Minor, appointment • of,
sajjadanashin. In order to constitute a wukf, it'
not necessary to use the word wiikf. So long a^
appears that the intention of the donor is to set apjt
any specific property or the proceeds thereof for t
maintenance or support in perpetuity of a spec-
object (.r of a series of objects recognized as pic
by Mahomedan law, it amounts to a valid a
binding dedication. Jewan Dass Shahu Shah
Kubeeroodeen, 2 Moo. I. A. 390, referred to. 'J
respective duties of sajjadanashiii and m.utwalli (
cussed. The mode of appointment of sajjada ■
shin referred to. Semble : A minor cannot e
appointed the sajjadanashin of a durga or shri'.
Piran v. Ardool Karim . I. L. R, 19 Calc. 23

21.

Settlement

favour of the settlor's family with the reservatn
of a life-interest in {.art or the whole of the inccm
for the settler — " Charitable " — "Religious." A
wukf in favour of the settlor's children and kindu
in perpetuity, with a reservation of a part or lo

DIGEST OF CASES.

789S )

MAHOMEDAN" LAW— ENDOWMENT—

contii-

whole of the income thereof in favour of the settlor
for his own use during his lifetime, is valid. Muha-
med Ahmnulla Chowdhry v. Amarchand Ku'idu,
1. L. R. 17 Ca'r. 4US : L. R. 17 I. A. 28, re-
ferred to. En.samrt;/a Dhur Chowdhuri v. Ahul
Fata Mahomed l.hak, I. L. R. is Calc. 3<.i9, dis-
sented from. In the construction of a deed of wukf ,
the words ' charitable ' and ' religious ' must be
taken in the sense in which they are understood
in Mahomedan law. Mahomed" Israil Kh\n v
Sashti Churn Ghose . I. L. R. 19 Calc. 412

.22- Wukl-Condi-

honal and revocable dedication— Conditions of a valid
■'edication. A Mahomedan by an insti-ument re-
cking a previous trust deed conveyed her pro-
perty to her husband on trust as follows :— (i)
to nraintain the settlor and her children out of the
income; (ii) to hand over the property to the
children on their attaining majority ; (iii) in the
!vent of the settlor's death without leaving children
'.vith the income of the property to have Kathom
•ecited in a mosque, give food to the mollahs who
:ome there for reciting the same and get the raoilu
^)erformed. The settlor reserved to herself and her
epresentatives an option of dealing with the pro-
■ )erty as a special fund for the maintenance of her
hildren, if any. The settlor died leaving no
hildren. In a suit by her half-sister against her
usband and others to recover her share of the
iroperty :— /^eW, per Muttusamii Ayyar and
ABKER, JJ., that the plaintifl was entitled to
Jcover her proportionate share of the property
otwithstiinding the provisions of the above instm-
lent. Per Shephard, J.— There had been no
Jajplete dedication of the property, aiid except so
,.r as regards the income required for the three
)ecific objects named by the donor, her property
as undisposed of. Conditions of a valid wukf
pnsidered. Pathukutti v. Avathalakcttti

I. L R. 13 Mad. 66

^^•. — ; ^ Wnkf—Con.

:uclion Of document. Where a Mahomedan of the

;<ia sect executed a document purportino' to come

to operation after his death, which document

|Ovided m a most complete nnnner of the devolu-

,3n of his property, with the intention apparently

I pre.servmg the estate in perpetuity intact under

,e headship of some male member of the familv

I th provision by way of allowances for the other

' smbers, and of maintaining the dignity of the ria-

l-. and in which no express mention of any sort

laedication of the property to charitable purposes

• ,- made, though there wa- some incidental

,erence to certain religious ,l„tie- —Held., that

illf ^u'"'"*,''""''^ "°* ^"^ construp.J as creating

|«TiKt. ihough it was not impossible that a

>"nent creating a wukf might contain |. revision

•; the family of the settlor, the dedicrUion to

■'le uses being postponed, vet here there

, 't even an ultimate dedication of property,

\^ the intention apparently of preserving the

'te m perpetuity intact under the headship of

property to charitable uses, but the object of '

MAHOMEDAN LAW— ENDOWMENT—

contl.

the executant was evidently merely the mainten-
ance of the family estates and of the dignity of the
n-sat Mahomed Ahsamdla Chowdhry v. Amar-
chand Kundu, I. L. R. 17 Calc. 108 .- L. R. 17 I A
1^,S, followed. Khujooroonissa v. Roushan Jehan,

ii^-n P"^"- ^'^' ■■ ^- ^- -^ ^- ^- ^•>^- ^nd Aua-

7middin Gvlam v. Abdul Gajur, I. L. R. 1.3 Bom. "Xil

referred to. Murtazai Bibi v. Jamixa Bibi ~ '

I. L. R. 13 All. 261

2^- ~~^. Wukf -Wukf.

nama containing provision for descendants of th"
grantor. The fact that the grantor of a wukf
has in the deed constituting the sam.e made some
provision for the maintenance of his kindred
and descendants will not render the wukf invalid
Mahomed Ahsamdla Choivdhry v. Amarchand
Kandu, I. L. R. 17 Calc. 498 : L. R. 8 I A ■'>8
and Muzhmool Huq v. Puhraj Ditareu Moha-
pattur, 13 W. R. 23 J, referred to. Deoki Prasad
V. Inait-Ullah . . I. L. R. 14 All 375

25.

Woxkf— Delivery o

" «ft-/ — J'envery o

q:o.ssession—Shta sect. According to the law appU-
cable to the Shias sect of Mahoraedans, a wTikf-
bil-wasiyat or testamentary wukf, is n.-t valid
unless actual delivery of possession of the appro-
priated property is made by the wukif (or appro-
priator) himself to the mutwalli (or superintendent
appointed by the wukif). According to the same
law, the death of the wukif before actual delivery
of possession of the appropriated property by him
to the mutwalli or the beneficiaries of the trust
renders the wukf null and void ab inilio. Conse-
quently, where the wukif dies, as mentioned above
before actual delivery of possession of the appro-
priated property, the consent of his heirs to the
testamentary wukf cannot validate suoh wukf.
Distinction between wukf-bil-wasiyat and wasivat-
bil-wukf explained. Agha Ali 'Khax v. Ai'taf
Hasan Khan . . I. L. R. 14 All. 429

26. Wukf—Relin.

quiMiment of possession on the part of the tvukif
essential— Stmnis. According to the law of Sunni
Mahomedans, it is essential to the validitv of a
wukf that the wukif should actually divest himself
of possession of th(! wukf property. Hence where
a Sunni Mahomedan executed and registered what
purported to be a deed of wukf, but' never acted
upon it and retained pes?ession until his death
of tne property dealt with by the deed, which pro-
perty subsequently passed to his two sons by inherit-
ance •.—Held, that no valid wukf of the property
mentioned in the .said deed was constituted. Mu-

HAMMAD AZIZ-UD-DIN AhMAD KhaN V. LeGAL

Reaiembrancer, N.-W. P. and OlDH

1. I.. R. 15 All. 321

27.

Wukf— Settle-

— •' " "A/ — otuie-

ment in lamvr of the settlor's lainily u-ith ultimate
remainder to the pocr—Dedicaiion not substantially
fjr religious and chnntablc purposa — Ajpwpnation
not within tlie princ-ple^ of vukl—Properti/ settled
on the settlor's familtj wuh a chatge upon it fjr
religious and char italic purpose^— Charge, etjcct

( 7899

DIGEST OF CASES.

( 7900 )

MA.HOMEDAN LAW— ENDOWMENT—

contd.

unon, ivhere wulj not valid. A settlor by instru-
ment purported to create a wukf in favour of his
family and, in the event of a failure of his descend-
ants, in favour of the poor of Dacca. The lower
Appellate Court held that the deed created a valid
endowment to the extent of R7i) per annum only,
and that, subject to such charge, the properties
were alienable : — Held, by the majority of the
•Full Bench, Petheram, C.J., Tkevelyak and
Chose, J J. (Ajieer Ali, J. dissenting), that upon
the construction of the deed and upon the authority
of Mahomed Ah^anulla Chowdkn/ v. Amarchand
Kurdu,I. L. E. 17 Culc. 49S : L. R. 17 I. A. 28,
the instrument did not create a valid wukf,
there being no substantial dedication to religious
and charitable purposes. Held, by the niajority
o£ the Full I3ench, Prinsep, Chose, and Ameer
Atj, J J. (Petheram, C.J., and Trevelyan,
J., dissenting), that the charge of 1175 per annum
should be allowed. Held, by PRi>iSEP, Trevelyan,
and Ghose, ././., that the course of the decisions
should not be disturbed by reference to texts which
may favour the idea that a settlement on the settlor
and his descendants in perpetuity is a pious Act.
Held, by Prinsep and 'Irevelyan, J J., that
upon the findings of the lower Courts no second
appeal lay, and it was not therefore necessary to
express any opinion as to the validity of the instru-
ment. Ameer Ali, ./. — The disposition in question,
viewed according to the Mahoraedan law, which
supplies ample safeguards against fraud, created a
valid endowment. There is a consensus of opinion
among Mahomedan lawyers of every school and sect
that wukfs on children kindred, or neighbours m
perpetuity are v?Jid. To hold that a wulcf, the
Ijenefaction of which is bestowed wholly or in part
on the wukif 's family a.nd descendants, is invalid,
would have the effect of abrogating an important
branch of the Mahomedan law. A wukf is a per-
manent benefaction for the good of God's creatures.
The wukif may bestow the usufruct, but not the
property, upon whomsoever he chooses, and in any
manner whatever, only it must endure for ever.
If he bestows the usufruct in the first instance upon
those whose maintenance is obligatory on him, or
if he gives it to his descendants so long as they
exist, to prevent their falling into indigence, it io
a pious act, even more pious than giving to the
cfeneral body of the poor. When a wukf is created
constituting the family or descendants of the wukif
the recipients of the charity so long as they exist,
the poor are expressly or impliedly brought in to
impart permanency to the endowment. The sub-
sequent conduct of the \vukif cannot in any way
a-.fect the wukf. Bikani Mlv v. Shuk Lal Poddar
I. L. R. 20 Gale. 116

28.

Wukf—Deed in-

valid as a wuhfnama — Attempted jamily settle-
mentinverpetiiity — Ultimate, bat illusory, gift for
charitable purposes. An instrument, nominally
a wuldnama expressly purporting to make property
wukf, settled it in perpetuity on the family of the
dedicators, with an ultimate gift for the benefit of

MAHOMEDAN LAW— ENDOWMENT

contd.

the poor, only to take eiJect upon the failure of t
descendants of the family : — Held, that a gift to t
poor might be illusory from the sraallness of t
amount, or from its uncertainty or remoteness ; ai
that the period when this gift was to take effect w
so uncertain, and probably so remote, that the g;
was illusory. Therefore, according to Mahomed i
law, it did not establish a wukf. Mahomed Ahic-
■ulla Chowdhry v. Amarchand Kundu, I. L. JR. '
Gale. 49^ : L. R. 17 I. A. 28, and Abdid Gafur.
Nizamudin, I. L. R. 17 Bom. 1 : L. R. 19 1. A. 1,
referred to and followed as the principle that I3
charitable purpose, in oi'der to establish a vnt
must be substantial and not illusory. Provisn
for the dedicator's family, out of the appropri; i
property, may be consistent with the makin, i
valid wukf, where the appropriation is substantia/
for a pious or charitable purpose. But as farry
settlement in perpetuity is contrary to the Ma)-
medan law, and as successions of inalienable 1;-
interests are forbidden, such dispositions cannot e
rendered legal by the mere addition of the wois
that they are made as wukf, or for the benefit of le
poor, where no substantial benefit is conferred n
the* latter. The decision of the Full Bfnchn
Bikani Mia v. Shuk Lall Poddar, I. L. R. 20 Cc.
lUi, approved. Abul Fata ^VIahomed IsHA^y.
Rasamaya Dhur Chowdhri

I. L. E,. 22 C ale. t.9
L. R. 22 I. A'B

29. Wiikf— Chit-
able and religious trusts— Perpetuities, de
against. A Mahomedan, by an instrumentin
writmg, dedicated certain moveable and imm e-
able properties for the up-keep of her husbaj.'.?
tomb and " for the daily, monthly and antal
expenses of the aforesaid mausoleum, suclas
lighting, frankincense, flowers, and the salari< of
repeaters of Koran and readers of benedictions,pc.,
as well as for the annual fatheha ceremonies ofcte
deceased, and after my death for my arual
fatheha ceremony. ' ' It was found that a tri'd-
ler's inn was erected by the endower of the pro]|rty
as an appurtenance to the tomb, and thatthe
performance of the ceremonies necessarily invfed
the distribution of charity and that the Ijata
at the tomb were of use to passers-by : — ^Id,
on appeal, reversing the judgment of Davie', J-t
that the instrument was not a valid wukf. an|'»as
void as contravening the rule agamst perpetifies-
Kaleloola Sahib v. Nuseeritdeen Sahib 1

I. L. R. 18 MadpOl

30. ]Vukf—lll^orn

dedication — Fatheha ceremony — Cudoma-- a|it"'«
to interpreting the intention of a wukif.l In
determining whether a disposition of prflerty
made by a Mahomedan is or is not a valid okf,
the intention of the wukif may be interpret by
reference to custom prevailing at the time the^iii^
was made ; and if there is found to bo a subsptw'
dedication of the property dealt with to cha'^We
uses, that dedication will constitute a Ya,li(i'^- ..
Mahomed Ahsanulla Chowdhry v, Ama\iuind

( 7901 )

DIGEST OF CASES.

( 7902 )

MAHOMEDAW LAW— ENDOWMENT— |
contd. j

Kundu, I. L. R. 1' Calc. 49S, and Abul Fata |
Mahomed Ishak v. Russomaya Dhur Chowdhry, \
I. L. R. 22 Calc. ('>!') : L. R. 22 I. A. 76, referred t
to Phul Chand v. Akbar Yar Khan

I. L. R. 19 All. 211 I
-

3]^_ Wulcf — Illusory \

iedicationSettlement for benefit of descendants j

)/ the settlors. Held, that a mere charge for some j

•haritable purposes on the profits of an estate \

itrictly settled on the family of the settlors in

perpetuity, and not dedicated in substance to

•haritable uses, is not sufficient to constitute a good

md valid wukf. Abul Fata Mahomed Ishak v.

Rmssonuiya Dhur Cliowdhry I. L. R. 22 Calc. 619 :

R. 22 I. A. 7(> ; Kaleloola Sahib v. Nasiruddeen

^^ahib, I. L. R. IS Mad. 201 ; and Mahomed Ahca-

lulkih Chowdhry v. Amarchand Ktmdu, I. L. R. 17

laic 4'iS, referred to. Muhammad MtrN'A-tt ar Ali

•. Rasulan Bibi . . I. Ii. R. 21 All. 329

32. Revocation of endowment

-Eftect of revocation or improper conduct of trustees.

\. valid wukf cannot be affected by revocation

r by the bad conduct of those responsible for the j

arrying out of the appropriator's behests, nor i

an it be alienated. Doyal Chund Mtjllick v.

jiRAMUT Ali . . . .16W. R. 116

33^ • Removal for mis-

vuluct. According to Shia law, a man who
evotes property to charitable or other uses, and
•ansfers the proprietary right therein to a trustee,
innot at his pleasure take it back from the trustee
horn he has constituted the owner, and give it to
' aother person, unless on the creation of the trust he
IS reserved to himself the right to do so in express
(inns, HiDAiTOONNissA V. Afzul Hosseix
I . 2 N. W. 420

' 34, - Gra7it reverting

' donor on misconduct of mutwallis. If mutwallis
' iJ to act up to the directions of an endowment, the
'•ant does not necessarily revert to the heirs of the
'antee. Reasut Au v~ Abbott . 12 W. R. 132

') Management of endowment

ition of manager — Limitation — Act XX of

. Since the passing of Act XX of ISG.'i, a

• alia, or manager of a Mahomedan endowment,

■t be considered to hold the position he was

. 11 to have in the judgment of the Privy Council

lewun Doss Sahoo v. Kiiheerooddeen, 0 W. R.

' '. 3, viz., as an officer appointed by the Govera-

■ t ; and therefore the ordinary rules of limitation

■pplicable to such cases. Lall Mahomed v.

•A Brij KisHORE . . 17 W. R. 430

36. La7id granted for

'rposes of — Right of succession to, aiul income
Land granted for the endowment of a khalibi,
her religious office, cannot be claimed by right
it'ritance. Where such a grant has Ijeen made,
uembers of the grantee's family have no right
13 death to a division amongst them of the
ue derivable from the land. The right to the
.'lue of such land is inseparable from the office

MAHOMEDAN LAW— ENDOWMENT—
contd.

for the support of which the land was granted.
Jaafar Mohiudix Sahib v. Aji Mohicdin Sahib

2 Mad. 19
37. Suit against di-
rectors or mushavirs of a mosque — Board of direc-
tors not properly constituted under the rules of the
mosque — Liability of directors for acts done by
Board not properly constituted — Appointment of
officers — Management of property — Liability of pro-
visional committee assuming authority to act —
Trustees— Limitation Act I XV of 1S77), Art. 120
— Kazi — Act II of IS i4 and Bombay Act IV of
1S64 — Nazir of mosque. Liability of — Parties. A
certain Mahomedan mosque in P.ombay, known as
the Juma Masjid, was possessed of considerable pro-
perty. The administration of the mosque and its
property was carried on under ruJes which had been
drawn up and approved in the year 18,S4 at a special
general meeting of the jamat convened for the pur-
pose in the course of a suit which had been filed in
the Supreme Court against the then mushavirs of
the mosque. That suit was referred to the master
to make certain inquiries, and in his report these
rules were set out in full. His report was confirmed
by the Court. The rules provided that the mosque
and its property should be managed by the kazi of
Bombay and ten mushavirs, and that a nazir should
be appointed by them, and bo subject to their
control. The rules also prescribed the various
duties of the kazi, mushavirs. and nazir, and
declared that the power of filling up vacancies
should be exercised by the kazi and mushavirs
collectively or by the kazi and an absolute majority
of the mushavirs. In 1834, and for many years
subsequently, there was, as there had always been,
a " Kazi of Bombay " appointed under a sanad
from Government. He held the appomtment for
life, and the office was not hereditary. In 186G the
then kazi of Bombay died, Ijut m consequence of the
provisions of Act II of 180-4 and Bombay Act IV
of 1S()4 the Covernmc^nt made no new appointment,
and the office lapsed. One M, however, assuraed
the olfice and was generally accepted by the com-
munity as kazi of Bombay. He died in 1S7S, and
upon his death rival claimants sought the office of
kazi of Bombay. The mushavirs were then
advised that they could not select one of the
rival kazis to fill the office of kazi of Bombay under
the rules, and they therefore continued to manage
the mosque without a kazi in violation of the rules
of 1834. Two of the mushavirs (now relators) were
of opinion that one of the rival applicants for the
position should be appointed kazi, and as their
^vishes were not acceded to, they ceased to attend
the board, and as far as possible while retaining
their offices, they thwarted the action of tlie other
mushavirs. Sub.-equeiitly in 1S78 other vacancies
occurred in the board. In 1888 the number of
mushavirs was reduced to six. and two of them (the
relators), as above stated took no part in the
administration, so that the management was left
in the hands of the first four defendants. In 1891
four new mushavirs (defendants Nos. G to 9) were

( 7903

DIGEST OF CASES.

C 7904 )

MAHOMEDAN LAW— ENDOWMENT—

contd.
elected, and in that year the Advocate General at
the relation of the two dissatisfied mushavirs filed
this suit against the mushavirs. The former nazir
of the musjid was also made a defendant (No. 5).
He had held the office of nazir from 1879 to 1891,
when he resigned. The plaint set forth the
irregularities which had taken place in the manage-
ment in 187S, and prayed for the removal of the
defendants (other than defendant No. 5) from the
position of directors or mushavirs, and for an
account agaftist all the defendants and for a scheme,
etc. The following were the principal charges
made against the defendants in the plaint and at
the hearing :— (i) The neglect to take steps to
supply the place of the kazi and the failure to keep
up the proper number of the mushavirs : — Held, as
to this, that subsequently to 1878 the mushavirs had
no authority under the rules of 1834 to fill up
vacancies as they occurred or to carry on the
government of the musjid. Since that year the
mushavirs were a provisional committee of manage-
ment, kept up from time to time by co-optation,
tacitly permitted by the jamat to manage the
affairs of the musjid until the original constitution
could be restored or legally changed, that original
constitution being for the time in abeyance, (ii)
The improper appointment in 1879 of one C (defend-
ant No. 5) as nazir : Held, that the mushavirs
incurred no liability and deserved no censure for
so doing, (i i) The neglect to call for an annual
account^ of the income and expenditure of the
mosque under rule 6 : Held, that this charge was
not proved, (iv) The neglect to purchase properties
with the surplus income "of the mosque as required
by rule 4. Upon this point it was contended that
the defendants should be charged with interest on
the uninvested funds, so as to make up for the loss
of rents which would have been recovered if pro-
perties had been purchased. In answer to this
claim, it was argued {a) that, under the circum-
stances, the mushavirs had no power to expend the
funds of the mosque in purchasing property ; and
(6) that the claim was barred by limitation : Held,
that the claim fell within Art. 120 of the Schedule
to the Limitation Act (XV of 1877), and was barred
except as to six years prior to the filing of the suit,
but even as to this period the Court refused to order
accounts to be taken against the defendants.
There had been no dishonesty or improper dealing
with the funds of the mosque. The highest at
which the case could be put was that there had been
error of judgment. In this the community had
acquiesced. Moreover, the position of the parties
had changed. Some of the mushavirs were dead,
others had resigned and were not defendants
to the suit, and it would be difficult to enforce
contribution against them. The Court was further
of opinion that, in any case, it was very doubtful
whether a provisional committee like the mushavirs
would have been justified in assuming the power of
purchasing property. Had the property fallen
in value, the purchase might perhajjs have been
repudiated, (v) Their neglect in not detecting sums

MAHOMEDAN LAW-

contd.

-ENDOWMENT-

appropriated by the billc Hectors of the mosqi

and getting in the same : Held, that, as a prov

sional committee who had assumed the manag

ment of the musjid, the defendants were hour

to protect its interests. Of the money which the

actually received, or which was paid into the

account, they were actual trustees, but in additic

to this they were officers of the musjid chargi

with the specific duty of superintending the naz

and his accounts, and if the musjid had suffered 1&.

by their neglect of duty, they were answered for ;

They neglected to examine the books, a curse;

audit of which would have detected the defalcatioj

of the bill-collectors. The Court therefore directi

an account against them of the rents actuar

received, or which, but for their wilful defai.

or neglect, they might have received from the hi-

collectors, (vi) Their neglect in allowing arrea

of rent to accumulate and to be lost to the musji;

Held, that it was not the duty of the mushavi

to look into the account of each individual tenai..

Under the rules, the nazir, and not the mushavs

was entrusted with the collection of rents, and it to

his duty to see that the rents were not allowed to Hi

unduly into arrear. It was not shown that, exceb

at an exceptional time when the nazir was ill, le

rents were so much in arrear as to call for the act3

j interference of the mushavirs, or that the musi

I had suffered undue loss under this head. The Coit

i therefore refused relief on this charge, (vii) le

[ non-payment into the bank of sums in the handsf

the nazir when they exceeded R500 : Held, that «

spirit of the rules had been complied with, ando

loss had been shown. Defendant No. 5, as abie

stated, had acted as nazir of the musjid from 189

j to July 1891, when he resigned. Under the nja

I (see rules 2 and 7) he was appointed by the dlB-

i tors and was under their orders, and was remov^,e

at their pleasure. It was contended at the hea4g

! that he was not a proper party to the suit, beg

! merely the agent or servant of the directors, fd

i not a trustee : Held, that he was properly mie

a defendant. Both under Mahomedan law |d

under the rules the nazir was a public officejua

\ charge of the mosque and as such liable to accept

j to the community. Advocate GEXER.iL i'

Bombay i: Abdul Kadar Jitaker

I. Ij. R. 18 Bom.

38. Succession to managemat

of endowment — Succession to endowed prom
— Rules of founder — Usage — Primogeniture. \Alre
property has been devoted exclusively to reli^«
and charitable purposes, the determination ofpe
question of succession depends upon the »es
which the founder of the endowment may f^
established, whether such rules are definedjby
writing or are to be inferred from evidence of uSe.
i Where, so far as the will of the founder can b^-
certained from the usage of former days, it se^ed
to authorize a mode of succession originating ijan
appointment by the incumbent of a successorfne
Court would not be authorized to find in favoi oi

( 7905 )

DIGEST OF CASE'S.

( 79UG )

MAHOMEDAN LAW— ENDOWMENT MAHOMED AN LAW-ENDOWMENT

—conld. ^contrJ.

any rule of succession by primogeniture solely from
the circumstance that the persons appointed were
usually the eldest sons. Gulam Rahumtulla
Sahib v. Mahommed Akbar Sahib 8 Mad. 63
Wulcf property

—Founder's right to appoint manager — Right of
executors to nominate manager — Akriha. Although,
according to Mahomedan law, the founder of a
wukf has a right to reserve the management of it
to himself or to appoint some one else thereto, yet
when he has specified the class from amongst which
the manager is to be selected (e.g., from amongst his
relations), he cannot afterwards name a person as
manager not answering the proper description.
Vfter the death of the founder, the right to nominate
manager of the wukf vests in the founder's vakils
)r executors, or the survivor of them for the time
)eing. The term " akriba " (relations), though
uore properly confined to relations by blood, will,
vhen the context shows that it was intended to be
ised in a \\'ider sense, be extended so as to include
•elations by affinity. The wife or widow of the
bunder is not included amongst his "akriba."
Advocate General v. Fatima Sultani Begam

9 Bom. 19

, ^"- - Misappropria-

ion of funds, (ffect of, on nature of trust— Con-
truction of endoument or grunt. Where the mutwalli
)f an endowment sought to recover his surburakari
I'ight in two villages, of which he had been dispos-
jssed by a person who had obtained a decree against
,iim personally and taken out execution against the
•ndowment ; and the said judgment-creditor con-
ended,— (i) that the proceeds of the endow-
uent had been appropriated to other purposes
nan those specified in the firman creating it ;
ii) that as the firman contained no rule of suc-
|es8ion by inheritance or otherwise, plaintifE could
,iot claim to be mutwalli simply in virtue of his
I'cmg a descendant of the original mutwalli ; and
1 11) that the use of the term " inam " in the
, rman showed that the grant was in the nature of a
.ersonal endowment : it was found that the nature
,f the firman removed all doubt of the wukf cha-
,acterot the endowment, and held, first, that the
, disappropriation of wukf funds might form the
iibject of a suit to compel the mutwalli to do his
jity, but could not alter the essential nature of his
™st; secondhf, that the question of the right of
|ne plamtitf to succession could not, for the first
""^/ °\''^'^^^ in this stage of the case; and,
I rdlll, thiit a grant should be construed according

"■ intention of the founder, and not according
strict interpretation of any particular word :

\ ord inam " being indiscriminately applied
.:> personal grants and religious endowments.
■•^^HEERooDDEEN alias Kalla SIiah v. Drobo
. 25 W. K. 557

tr)n J j~ ' Alienation of

o^m Imds—Appointment of wife us mutivalli
'-tmnd s hfetmie— Power to appoint mutwalli.
^' a plaintiff sued to recover certain lands which
VOL. III.

|[OYEE

'41..

had been appropriated to religious and charitable
purposes by the father of her deceased husband, and
urged that she had been ousted by defendant, who
was the son of a half-brother of her husband ; but
the defendant contended that he had been put in
possession as manager by plaintiff herself and other
wiclows of the plaintiff's deceased father-in-law, all
which widows had some interests in the land under
various deeds by which adrlitions had been made to
the original endowment ; and defendant further
pleaded that, under the original deed of appoint-
ment, plaintiff's husband could not aUenate the
property and that plaintiff's possession would be a
virtual alienation ; and also that plaintiff 's claim
was barred by limitation, and that she could not
hold the land without the sanction of the Govern-
ment under Act XX of 1863 ■.—Held, that, although
plaintiff's original appointment by her late husband
during his lifetime was unauthorized, yet, as aliena-
tion in such a case would mean alienation of the
subject of the endowment rather than its transfer
to plaintiff, whose possession was not an advei-se
possession, plaintiff's possession did not defeat the
purposes of the original appropriator, and could not
be regarded as an alienation ; and that in these
circumstances, even though the property were
wukf, there could be no defect in plaintitl"'s title.
I An appropriator of land to special purposes can,
under Mahomedan law, confer the office of superin-
tendent on another at any time. It was found
in this case that defendant, as a descendant of
the original appropriator, had succeeded to other
properties which were quite distinct from the land
j in suit. Abdool Khalek v. Poran Bibee
I 25 W. R. 542

42. . Sajjadanashin,

khilafat, and mutW'illi, offices of — Primogeniture,
Custom, of — Eldest son's right to hold the offices —
Wukf, inheritance to — Predecessor in the office
to appoint his successor, right of. About three
hundred and fifty years ago one S, the ancestor of
the parties to the suit came to Surat and settled
there and became the pirraushid (religious precep-
tor) of the Mahomedan community at that place.
During his lifetime, as well as after his death,
moveable and immoveable property was from time
to time dedicated to the religious office he and,
after his decease, one or other of his descendants
successively occupied. The plaintiff was the eldest,
and the first defendant the second, son of H, the
last incumbent of the said office. In 1805 //, being
ill, executed a tauliyatnama appointing the plaintiff
his executor and successor. Subsequently H,
having recovered, cancelled the same and appointed
the first defendant his successor by three successive
tauliyatnamas, the last being dated ;ird September
18S1, a few days before //'s death.- The first-
defendant accordingly entered into possession and
management of the office of sajjadanashin (or priest)
and khilafat (deputy), and assumed the position of
mutwalli (or manager) of thewukf property of the
family. In 1882 the plaintiff brought the present
suit to have it declared that on him, as the eldest

11 T

( 7907 )

DIGEST OF CASES.

( 7908 )

MAHOMEDAN LAW— ENDOWMENT

— cont I.

son, had devolved the office of sajjadanashin and
khilafat held by the family, and not on his younger
brother, the defendant, find that he alone wa-;
entitled, as miitwalli, to take possession of and
manage the wukf property. The plaintitf relied,
firstly, on the appointment made by his father in
lt<65, and, secondly, on the fact of his being the
eldest son of the last incumbent, to whom, he
maintained, both by law and custom belonged
the succession to the offices in question so long, at
least, as such eldest son was in other respects a fit
and proper person to succeed, which in his own case
was not contested. The defendant denied that
either by laM' or custom was the eldest son, as such,
entitled to succeed, and relied on the fact of his
appointment by his father : — HehJ, that the plaintiff
had made out no case of a right to succeed his
father in the offices in question. Not under the
deed of appointment, because that was made by
his father when he believed he was dying, and was
subsequently on recovery cancelled, and was there-
fore inoperative, on similar principles to those
which apply to the case of a donatio mortis canm ;
nor, secondly, under the general Mahomedan law ;
because that law is strongly against attaching any
right of inheritance to an endowment ; nor, thirdly,
by reason of any custom, because no such custom
as that contended for was established on the
evidence. The evidence went to show that the
eldest son did not uniformly succeed, and that,
even when he succeeded, he did so by right of
appointment, and not by right of primogeniture.
Abdula Edeus v. Zain Sayad Hassan Edrus
I. L. R. 13 Bom. 555

43.

Appointment as manager-

How jar effectual. An appointment as manager by
the trustee for the time being of a Mahomedan
itligious endow-ment was held not effectual beyond
the incumbency of the nominator. Moheeooddeen
Ahmed v. Elahee BtrKSH . 6 W. R. 277

44. Shia— Disquali-
fication. The fact of a person being a Shia does not
disqualify him for the supervision of a wukf made
by a Sunni. Doyal C'hxjnd Mullick v. Keramut
Ali 16 W. R. 116

45. Hereditary suc-
cession. In a Mahomedan religious endowTuent,
when it is essential that the superior or manager
should have certain qualifications which succession
by descent would not always ensure, the theory of
hereditary succession is most unlikely and out of
place. Syedun v. Allah Ahmed

W. R. 1864, 327

46. Sufjada-nasheen,

descent of office of — Female's right of. Under
the Mahomedan law. offices like that of suffada-
nasheen should descend to persons in the male line
and those who are descended from females are
regarded as not belonging to the family of the
founder, but strangers. Where such an office has
been once diverted for sufficient cause (e.^., default
■of male issue) from a particular line of descent, it is

MAHOMEDAN LAW— ENDOWMENT

— contd-

liable to be brought back into the line of a previou
holder when the person claiming under that holde
is a descendant in the female line. Ahmtid Hoi
SEiN V. Mohioodeen Ahmud . 16 W. R. 19

47.

Temporal an

spirittuil affairs — Performance of duties by ienmh
According to Mahomedan law, a woman raa
manage the temporal afiairs of a mosque, but nc
the spiritual afiairs connected with it, the manage
ment of the latter requiring peculiar personi
qualifications. Hussain Bibee v. Hussai
Sherif 4 Mad. 2

48.

Wukf or endow

property — Office of mutwalli, nature of — Transf
of, or performance of duties of, by agent. 'Ir
office of mutwalli is a trust which a woma
equally with a man, is capable of undertaking, bij
it is a personal trust, and the office may not \\
transferred nor the endowed property conveyed i
any person whom the acting mutwalla may selec
The word " deputy," in book 9, Ch. V, page 591
Baillie 's Mahomedan LaW; signifies some one wh
as an agent, may be employed to perform tl
duties of the office, as to collect rents and to assi
the mutwalli in expending the proceeds of tl
endowed property for charitable pui-poses. Wahj
Ali v. Ashruff Hossain

I. L. R. 8 Gale. 732 : 10 C. L. R. 55
49. Woman per fori

ing duties of manager of eiulowment. A woman
not competent to perform the duties of mujav
of a durga which are not of a secular natui
Mujavar Ibrambibi v. Mujavar Hussain Sheri
I. L. R. 3 Mad. i

50.

Appointment

the religious superior of a Mahomedan institvtii
— Custom as to such appointment — Undue inflmn
how indicated — Object of pleadings — Issiie not
terms fired, but afterwards raised. The object
any system of pleading is that each side may
made fully aware of the questi')iis that are aboi
to bo argued in order that each may bring forwaJ
evidence appropriate to the issues. The claim hef
made was that the last preceding sajjadanashi
acting according to the custom of the institution
which he was the religious superior and managi
had appointed the plamtifl to succeed him on li
decease. The finding of the first Court that he h\.
this power by the custom was affirmed on tl'
appeal. As to the fact of the appointment, it «
not apparent at what stage of the suit the questi
had first been raised, whether the deceased had be
of sound and disposing mind at the time of maki
it. The first Coui't found that he had been of sou
mind at the time ; but the Chief Court on app
reversed this finding, and added that he had bci
in their opinion, unduly influenced. As th(
questions, though not formally stated in the issu
had been sufficiently open upon the proceedings
give to each Court a right to form a judgment up
them, the Judicial Committee decided which v»
correct ; and affirmed the finding of the first Coit

( 7909 )

DIGEST OF CASES.

( 7910

MAHOMEDAN LAW— ENDOWMENT

— contd.
as to the soundness of mind of the deceased. Upon
the question of undue influence, which was an issue
different from that of the mental capacity of the
deceased in appointing, their Lordships found no
evidence of either coercion or fraud, under which
juch influence must range itself, citing Boyse v.
Rosborough, 6 H. L. C. 1. They found no evidence
af the exercise of any influence. The decision of
the Chief Court was therefore reversed ; and the
lecree of the first Court, in favour of the plaintiff,
,vas niamtained. Sayad Muhammad v. Fatteh
\IuH4MMAD . . I. L. R. 22 Calc. 324
L. R. 22 I. A. 4
51. Alienation of endowed pro-
perty— WuJ:f — Limitation. According to Maho-
edan law, wukf or endowed property is alienable.
Vukf property is not the less v^'ukf property because
ifthe use of the words " inam " and " altamgha " in
he grant, provided the grant clearly appears to
lave been intended for charitable purposes. A
autwalli, or superintendent of an endowment, is
ot barred by hmitation if he sues to recover pos-
ession of endowed property within twelve years
rom the date of his appointment. Jewun Poss

AHOO V. KUBEEROODDEEN

6 W. R, P. C. 3 : 2 Moo. I. A. 390

A lienation hy

52. ■

■uiwalli. In dealing with the mutwalli of an
idowment, it is not necessary for the purchaser to
ok further than to the power of the mutwalli
nder his deed of trust. If the deed gives the
utwalU the power and discretion to make a sale,
is not a matter of concern to the purchaser
hether that power or discretion is judiciously
:ercised or not. Golam Ali v. Sowlutoonnissa

[BEB W.R. 1864, 242

53. - - Grant of mirasi

ise. According to Mahomedan law, the trustees I

an endowment cannot create a valid miras :
Dure at a fixed rent by granting a lease of any

irtion of the wulif property. Soojat Ali v. j

JMEEROODDEEN ... 5 W. R. 158 I

54. Alienation of \

id devoted in part to reliijious purposes. Where |

5 whole of the profits of land are not devoted to i

igious purposes, but the land is a heritable pro- i
rty burdened with a trust, — e.g., the keeping up
'a saint's tomb, — it may be alienated subject to
! trust. FuLTOO BiBEE V. Bhurrut Lall

luKUT .... low. R. 299 i

j>5. Alienation of i

\kf property — Suit to set aside such alienation —

■i^iJU to sue — Civil Procedure Code (Act XIV of \

I (2), «. 539 — Mahomedan law. Plaintiffs sued to '

";Over possession of certain lands, alleging that I
'|y had been granted in wukf to their ancestor and

' lineal descendants to defray the expenses for, or j
' nected with, the services of a certain mosque;

J t their father (defendant No. 3) and cousins [

vjendants Nos. 4 and 5), who were mutwallis |

« -harge of the said property had illegally alien- I

•J some of these lands, and had also ceased to I

MAHOMEDAN LAW— ENDOWMENT
— contd.

render any service to the mosque, whereupon they
(the plaintiffs) had been acting as mutwallis in their
etead. They therefore claimed to be entitled, as
each, to the management and enjoyment of the
lands in dispute. It was contended, inter alia,
that the plaintiffs could not sue in the lifetime of
their father (defendant No. 3), ho not having trans-
ferred his rights to them : — Held, that the plaintiffs
were entitled to sue to have the alienation made by
their father and cousins set aside and the w ukf pro-
perty restored to the service of the mosque. They
were not merely beneficiaries, but members of the
family of the mutwallis and were the persons on
whom, on the death of the existing mutwallis, the
off^ice of mutwalli would fall by descent, if indeed
it had not already fallen upon them, as alleged
in the plaint, bj' abandonment and resignation.
Wukf property cannot be alienated, and any person
interested in the endowment can sue to have
alienations set aside and the property restored to
the trust. Per Ranade, J. — As a suit for pos-
lession, the suit was defective in form and could
not be maintained. It ^\ as a suit for partition of a
moiety of the lands, and the owner of the other
moiety was not a party. The suit was, however,
really a suit for a declaration that the lands were
the inam property of the mosque, and as such
was not liable to alienation for the private debts
of defendants Nos. 3, 4, and 5. The plaintiffs were
entitled to sue for such a declaration, although they
could not obtain actual possession. They Mere
benefi3iaries and had a right to sue under s. 42 of the
Specific Relief Act (I of 1877). Hassan v. Sagun'
Balkrishna *. . I. L. R. 24 Bom. 170

56. Liability of wukf

•property in hands of widow to decree against husband.
Where property is endowed (made wukf) by the
proprietor, s and as such devolves to his widow
as trustee (mutwalli), it cannot be sold in satisfac-
tion of a claim against him. Fegredo v. Mahomed
MuDESSUB . . . . 15 W. R. 75

57.

Alienation by

trustees without sanction ot Judge whether voiditble
or void. A Civil Court of superior jurisdiction in
the district is vested, generally speaking, with the
powers exercised by the ka/,i. Before an alienation
of trust property can be made by the trustee, the
sanction of the kazi, in other words the Judge, is
essential. Where the trustees of a certain mosque
without obtaining the sanction of the .Judge sold the
lands in dispute which formed a part of the trust
property to the plaintiffs in order to raise money to
meet the expense of litigation and the repair of the
mosque : — Held, that the sale was not merely void-
able, but void. Ismail Ariff v. Mahomed Ghou^e,
I. L. R. 20 Calc. S34 distinguished. Rajesware
Dasya v. Mahomed Abdullah, 7 Sel. Rep. 320, and
Jawun Doss Sahoo v. Kubeerooddeen. 2 Moo.
I. A. 390, followed. Shama Churn Roy v. Abdul
Kabeeb . . . . 3 C. W. N. 158

58.

Mortgage. The

fact that a mor; jage is in existence over property at
11 T 2

( 7911 )

DIGEST OF CASES.

7912 )

MAHOMEDAW LAW— ENDOWMENT

— contl.

the time when it is set apart as an endowment does
not invalidate the endowment under Mahoraedan
law. It is an endowment subject to a mortgage.
If after a mortgage the mortgagor endows the land
and dies leading sufficient assets, his heirs are
bound to apply those assets to the redemption of
the mortgage, so that the endowment may take
effect freed from the mortgage by the application
of other assets of the endower. But, if necessary,
tlie mortgagee may enforce the mortgage bj'^ sale
of the land, and the endowment M'ill be rendered
void as against the purchaser under the mortgage,
but not as against the heirs of the endower ; as
atiainst the latter, the sui-plus sale-proceeds will be
etibject to the endowment. Hajra Begum v.
Khaja Hossein Ali Khan

4 B. li. E. A. C. 86 : 12 W. R. 498

lipholding on review, Khajah Hossein All v.

V .\ZABA Bsovts. . . . 12W. R. 344

MAHOMEDAN

— contd.

LAW— ENDOWMEN

59.

Wa-ite commit-

ted by mutwalli — Liability to account. Where a mut-
walli was proved to have been guilty of waste, the
High Court ordered him to file in Court every six
months a true and complete account of his income,
expenditure, and dealings with the property belong-
ins to the endowment. Imdad Hossein v. Maho-
med Ali Khan . . . 23 W. B. 150

60.

Suit for asser-

tion of khadimi rights — Sale of office to which are
attached conduct of religious tvorship and perfor-
mance of religious duties — Custom. The plaintiffs
instituted a suit for a declaration 'that they Mere
the khadims of a certain durga and, as such, entitled
to pei-form the duties attached to that office for 21
days in each month, and during that period to
receive the offerings made by worshippers at the
durga. They also claimed an injunction restrain-
ing the defendants from interfering with them in
the exercise of that office. The plaintiffs claimed
their khadimi rights partly by inheritance and
partly by purchase, a custom of transferability by
sale having .been long recognized : — Held, that the
suit, being a claim to an hereditary office, fell under
Art. 124 of the Limitation Act, and was not barred
by limitation. Semble : That a Mahomedan office
to which are attached substantially the conduct of
religious worship and the performance of religious
duties, is not legally saleable, any custom to the
contrary notwithstanding ; and that therefore, in
so far as the title of the plaintiffs depended upon
purchase, the suit failed. Juggurnath Boy Chow-
dhry v. Kishen Pershad Surmuh, 7 W. E. 265 ; Kuppa
Gurakal v. Dorasami Gvrakal, I. L. R. 6 Mad. 76 ;
Mancharam v. Pranshankar, I. L. E. 6 Bom. 29S ;
and Vurma Valia v. Bavi Vurma Kunhi KuUy,
I. L. R. 1 Mad. 235 : L. B. 4 I. A. 76, leferied to.
Sarkum Abu Torab Abdul Waheb v. Rahaman
BuKSH . . . I. L. B. 24 Calc. 83

61.

Bemoval of manager — Mis-

conduct. If a superintendent of an endowment
misconducts himself, the Mahomedan law admits

of his removal , and this is sufficient to protect tl
objects for which the trust was created. Hidai
ooN-NissA V. Afzul Hossein . 2 W . W. 42

62.

Mistnanageme

— Power of donor. The i-ule of Mahomedan la
that a mutwaUi, or superintendent of an endo-
ment, is removable for mismanagement, does n;
apply to the case of a trustee who has a heredita-
proprietary right vested in him. It is essentia! f-
the exercise by the donor of the power of removi;
a superintendent, that such power be specia'
reserved at the time of the endowment. GuL.:
HussAiN Saib v. Aji Ajam Tadallah Saib. .
Ajam Tadallah Saib v. Guimm Husai^s Satf,

4 Mad.

63. . Miscondt

Where the plaintiff sued to recover certain propey
as wukf , on the ground that the mutwalli and his :.-
cestor (a former mutwalli) had misconducted the.-
selves by selling to some of the defendants the p-
perty which was the subject of the endo^v^nent —
Held, that, as plaintiff' had shown no title, eitheu
heir or otherwise, to partake of the benefit of le
endowment, he had no right to recover possess a»
and that the utmost he could ask for was to hayeie
mutwalli Avho had misconducted himself remod,
and a new mutwalli appointed, provided he sho;d
circumstances which, according to law, odd
justify the Court in selecting a mutwalli. Beb-
RUCK Chundra Sahoo v. Golam Shukruf

10 W. E. •»

64. Bemoval of$'

cer for disobedience — Cautse of actio7i — Trust, la
suit by the superintendent of a Mahomedan regi-
ons establishment to eject defendant {M) fronihe
office of takheadar and from certain lands theto
appertaining, on the ground that he had by.lie
authority vested in him already discharged M :)m
employment in consequence of disobedience,:he
alleged cause of action being an order passed bjbe
Civil Cou;rt decreeing to the defendant a quality
of land belonging to the establishment, not'^h-
standing the superintendent's objection that J/
no longer takheadar -.—Held, that the plain
cause of action was correctly stated, for it w
the order in question that his nominee wa-
aside, and the defendant declared to have a
to the land as takheadar ; and that the defend . -
claiming to hold independently of the superiteti-
dent was an act of the gravest disobedience wawit-
ing the plaintiff's interference and the exerc: of
his authority. HeM, also, that the suit wajnot
barred by limitation, as the defendant helljii*
office subject to the general control and autlpty
of the superintendent, both parties executinj the
same trust. Meher Ali v. Golam Nuzuff^

11 W.

65. Sajjadanashin, positioi: o^

— Rule that remuneration of mutwalli shouk not
exceed one-tenth of income of endoivment. Th<rul»
of Mahomedan law that the remuneration ^i ^

( 7913 )

DIGEST OF CASES.

( 7914 )

tfAHOMEDAN" LAW— ENDOWMENT

—contd.

iiutwalli should not exceed one-tenth of the in-
ome relates to such managers or niutwallis as
ave no beneficial interest in the usufruct of the
iidowed properties, or are strangers to the endow-
lent. Taking into consideration the nature of
lie institution, the character of the grant, and
iie position of the sajjadanashin, the rule was i
eld not to apply to the Sasseram khankah. ;
tomuDDiN V. Sayiduddin alias Navvab Mean

I. L. R. 20 Calc. 810

68. Sajjadaiiashin,

y^ition of and maintenance of — Liahility to pay
icome-tax. The position of the sajjadanashin
<cussed, and distinguished from that of a mutwalli.
able: The maintenance of the sajjadanashin of
le Sasseram khankah is a part of the purpose for
hich the khankah was established. Mohiuddin
\ Sayiduddin, I. L. R. 20 Calc. 810, Piran v.
Mvl Karim, I. L. R. 19 Calc. 203, referred to.
tie sajjadanashin is not liable to income-tax in
.spect of such moneys as ho draws from the
iiankah properties for the purpose of his own
'iintenance and that- of hio family. Secretary
!' State for Ixdia v. Mohiuddin Ahmed
I I. L. R. 27 Calc. 674

(67. Waqf, validity of— Crention

; endow nent — Waqf-nama — Mutwalli, amount to

expended in charitable uses at the discretion of

—Endowment, family — Charitable useS; gift to.

I' be a valid deed of ivaqf, a deed must have the

ect of granting the property in substance to

"'iritable uses. Where its effect is to give the pro-

rty in substance to the family, or leaves the

'lount to be expended in charitable uses in the

' solute and uncontrollable discretion of the

Ucalli and no one has a right to demand an

■lount, the deed is not a valid deed of waqf : — Held,

' a consideration of the terms of the deed in

'■'^ion, that it did not constitute a valid trust.

-ux-NiSA V. Abdul Rahim (1900)

I. L. R. 23 All. 233 : 5 C. W. N. 177 ;

s.c. li. R. 28 I, A. 15

1J8. Shias-Waqf—

■iHdii vjaqf — Condition sxisjyending operation of

'^fj-nama — Condition that wafq-nama should not

effect until registration. According to the

la law, it is one of the essential conditions pre-

jentto the validity of a waqf that it should not be

|iered contingent upon any future event, whether

I a event is likely or possible to occur, or even

tin it is certain to occur, such as the beginning of

next month, or the occurrence of the death of

wiqf. Hence, where a Mahomedau of the Sliia

executed a jvaqf-^iama, in which it was provided

■/ ' this deed of waqf shall come into force from

date of its registration, no one shall be at

B'jrtyto take any objection, etc. : " Held, that

I condition was repugnant to the doctrine of the

law, and the waqf was invalid. Agha Ali

[nv. Altaf Husain Khan, I. L. R. 14 All. 429,

Sfredto. Syeda BiBi t\ Mughal Jan (1902)

I. L. R. 24 Ail. 231

MAHOMEDAN LAW— ENDOWMENT

— contd.

69. Waqf of money

held to he valid. Held, that, according to the
Mahomedan law, a tcaqf of moveable pioperty may
be validly constituted. Fatima Bibee v. Ariff
Ismailjee Bham, 9 C. L. R. dlj, dissented from.
Abtj Sayid Khan v. Bakar Alt (1901)

LL. R. 24 All. 190

70. Waqf— Essentials

of a valid waqf, according to the Shia law —
Illusory dedication. One Muhammad Faiyaz Ali
Khan, a Mahomedan of the Shia sect, on the 7th
of May, 1878, caused to be drawn up an instrument
by which he purported to make a waqf of the whole
of his property. This instrument, beyond the bare
statement that the property was constituted waqf,
contained no specification of the purposes to which
it was to be devoted. The settlor, however, after
naming himself as the mzttivalli of the waqf property
during his life,went on to declare that the precise
purposes of the dedication, and the mode in which
the waqf property was to be managed, would be set
forth in a will which the settlor was about to execute.
But he added that the future will should always
be acted on after his death, and, so far as he himself
was concerned laid down no rules for the manage-
ment of the waqf property. On the 11th of May
1878, the instrument above referred to, and the
will, were executed by Faiyaz Ali Khan, and they
were both registered on the 13th of the same month.
The will provided for the succession to the office of
mutwalli after death of the testator, and laid down
certain " rules of practice " to bo observed with
reference to the management of the endowed pro-
perty. These rules of practice for the most part
merely enjoined upon the mutioalli the keeping up
of the religious observances which had been usuallj-
performed by the testator in his life-time, and which
were no more than such ceremonies as would
ordinarily be performed by a pious and well-to-do
Mahomedan of the sect to which the testator
belonged. The tenth paragraph of the rules of
practice did, however, provide that, should the
settlor have left any debts, " the succeeding
mutwalli should pay them first of all by curtailing
all the expenses." The former of these two docu-
ments, while reciting that the icaqf was created '' in
order to obtain benefit in the next world," also pro-
vided that the property dealt with thereby should
" under no circumstances bo made the subject of in-
heritance, ' ' and otherwise clearly indicated that the
object of the waqf was very largely the preservation
of the property in the hands of the settlor's descend-
ants. After the execution of these documents, the
settlor never had himself recorded in the Revenue
records as wu/jfoih' instead of proprietor, and his
son, the succeeding mutwalli, was recorded as i)ro-
prietor and not as mutwalli : Held, by Stanley,
C.J., that the so-called waqfnama was invalid, for
the reason, chiefly, that there was therein no specific
tledication to religious or charitable uses, such as was
necessary to constitute a valid waqf. The subse-
quent will could not be prayed in aid to complete the
transaction, inasmuch as, under the Mahomedan
law applicable to the Shia sect, a waqf could not be

( 7915 )

DIGEST OF CASES.

( 7916 )

MAHOMEDAN LAW— ENDOWMENT

— contd.
created by will. It appeared moreover that the
settlor's intention was to suspend the operation of
the waqfnama until after his death, which also was
not permissible according to the Sliia law. If the
two documents could be read together, even then
the waqf would be invalid, as it appeared that the
dedication was not so much intended to satisfy
pious or charitable objects as to secure the preser-
vation of the donor's property for his famih'.
Agha Alt Khan v. Altaf Hasan Khan, I. L. M.
14 All. 429 ; Abdul Ganne Kasam v. Hussein Miya
Rahimtulla, 10 Bom. H. C. Bep. 7 ; Mahomed
Hamidulla Khan v. Lotjul Huq, 1. L. R. 6 Calc.
744 : Pathuhutti v. Avatha-akutti, I. L. B. 13
31 ad. 66 ; and Syeda Bibi v. Mughal Jan,
I. L. B. 24 All. 231, referred to. Per Buekitt
J. — The waqfnama and the will could be read
together as constituting but one transaction,
which was not therefore open to the objection
of being a testamentary waqf, inasmuch as the
dedication was made by the waqfnaina, and the
will did not purport to make any testamentary
disposition in favour of the succeeding mutwalli bnt
merely recited the dedication made in the waqf-
nama, and then went on to lay down certain rules
as to the management of the property. But even
so the loaqf was invalid, as not being a real and
substantial dedication to religious or charitable
purposes, but under the guise of such dedication,
an attempt to preserve the property in act for the
benefit of the settlor's family. Apart from this,
the provisions of the tenth paragraph of the rules of
practice referred to above, as to the payment of the
settlor's debts by the succeeding mutwalli, were of
themselves sufficient to invalidate the ^caqf. It
was further open to considerable doubt whether,
under the circumstance of the case, the settlor had
ever taken such possession as mutwalli of the waqf
property as is requisite under the Shia law. Hamid
Ali v. Mitjawar Hussain Khan (1902)

I. li. R. 24 All. 257

71. Waqf, validity

of — Family settlement in perpetuity — Illusory gifts
for charitable purposes. "A waqfnama, to he vd[k\,
must be a substantial dedication of property to a
religious or charitable purpose." Where it appear-
ed from the waqfnama itself that the substantial
object of it was not to devote the settled property
to charitable or religious purposes, but, in eflect, to
give the property in substance to the grantor's
family practically in perpetuity, and that the pro-
visions for charitable purposes could scarcely be
regarded as other than illusory : — Held, that the
instrument did not create a valid waqf according to
Mahomcdan Law. Mahomed Ahsanulla Chowdhry
V. Amur Chand Kundu, I. L. B. 17 Calc. 49S ; Abdul
Gafur V. Nizamudin, I. L. B. 17 Bom. 1 ; Abdul
Fata Mahomed Ishalc v. Basamaya Dhur Chowdhri,
I. L. B. 22 Calc. 619 ; and Mujtbunnissa v.
Abdur Bahim, I. L. B. 23 All. '223, referred
to. Fazltjr Rahim Abtj Ahmud v. Mahomed
Obedxjl Azim Abu Ahsan (1003)

I. li. R. 30 Calc. eee

s.c. 7 C. W. N. 916

MAHOMED AN LAW— ENDOWMEI?

— Contd.

72. ■ Power of Shico

create valid waqf by will — Admissibility of evidee
— Statements as to heirs, made in accordance vh
practice of public office — Proof of legitimacy >j
heirs namei in such statements — Evidence A,
1872, s. 32. By the law of the Shia sect of Ma)-
medans, as well as by that of the Sunni sect a
valid waqf can be created by will. Agha Ali Kn
V. Altaf Hasan Khan, I. L. B. 14 All. 429, s-
sented from. A series of statements, extent ig
from 1860 to 1890, by a wasiqadar, made in accd-
ance with the practice of the wasiqa office, a Dept-
ment under Government, as to who were her Irs
and made at a time when no controversy on le
subject was in contemplation, and letters wrisn
by her, in reply to inquiries by the imsiqa ot ir,
explaining and confirming such statements, ^re
held to be admissible in evidence in support ofae
legitimacy of such heirs, and, under the circn-
stances, to be conclusive in their favour. Bale
Ali Khan v. Anjuman Ara Bec.am (1903)

I. L. R. 25 All. J6
s.c. L. R. 30 I. A. 94 ; 7 C. W. N. 35

73, Shias—Mi

— Words necessary to constitute a valid waqf. ll'^>
that, according to the Mahomedan Law applicjle
to the Shia sect, the use of the word " waqf to
create a valid waqf is not essential, but other ^v•ds
purporting to eflcct a transfer may, when ad
together with surrounding circumstances, be -ffi-
cient to create a valid waqf. Saliq-un-nis' v.
Mati Ahmad (1903) . . I. L. R. 25 A11.18

74. Waqf— 'Id-

walli — Appointment of successor by dying mtdwci—
Stranger, if may be appointed. There is no pre ' ■
tion "against a dying mutwalli appointing i
successor in office a stranger, i.e., one who i-
member of the family of the deceased foundei <
waqf. Amir Ali v. Wazir Hyder (1905)

9 C. W. N376

75, ErJouirtir-

Waqf — Validity — Beligious and charitable C'tsts
ancillary to aggrandisement of family — Limitat\n—
Adverse possession — Estate inherited from ma^f—
Exclusive enjoyment by father as tritatee. The nns
of a waqfnama executed by a Mahomedan ai ii'=
wife were almost all expressly directed to se^
the husband in the full enjoyment of the
estate as long as he lived, to keeping that est
perpetuity entire and inalienable under el
management by a single person, to maintaiiii
dignity of the family and to making provisi ' -
its members. The bulk of the property ws noi-
affected by any religious or charitable trustsJ 1 »^
religious and charitable clauses dealt with n*'^
naturally incident to maintaining the dignity
family, their secondary character appeaiin,!
alia from the fact that while the deed purpov-i K
create the waqf as from its date, the religiol ana
charitable trusts were not to become oblig-^iT'
until after the death of both the executants :-y«*«'
that no valid waqf was created by the deed Ine
wife died shortly after the execution of thueei

( 7917 )

DIGEST OF CASES.

( 7918 )

MAHOMEDAN LAW— ENDOWMENT
—contd.

md the husband about 14 years later : Held, that
he High Court was right in holding that exclusive
mjoyment by the husband of the wife's estate in
«rms of the deed, did not constitute his possession
idverse to a daughter, who survived the wife, but
)redeceased the husband and the right of the heirs
)f the daughter to recover her share of her mother's
state was not lost. Munawar Ali v. Razia Bibi
ig05) . . . I. L. B, 27 All. 320

s.c. 9 C. W. N. 625
L. E. 32 I. A. 86

76.

Testamentary waqf — Vali-

Uty — Power of cancellation reserved — Condition as
'- lirth of issue in lifetime of testator — Waqf of
, come^Fostponeiiient to life interest of widow —
nheritance on death of widow with life interest.
leld, that a waqf created by a Sbia by his
ill is not invalid on the ground that it is not
bsolute and unconditional merely because it con-
lins clauses cancelling the will, if any child
|iould be born to the testator in his life-time
nd reserving to the testator the power to
ancel or modify any of the conditions of the will.
aqar Ali Khan v. Anjvman Ara Begam, I. L. B. 2-')
' H. 23H, referred to. Held, further, that the waqf
as not invalid because the testator directed that,
ter the death of his widow, to -va horn he gave a life
' terest, the income of the property should be de-
')ted to the purposes of waqf, where it was clear
oir other terms of the v ill that the corpus also was
1 1 be devoted to the purposes of the waqf. Held,
iirther, that the fact that the property did not at
ice on the testator's death pass to the trustees of
le endowment, their employment being postponed

a life interest of the widow for maintenance, did
.>t invalidate the waqf. Mahomed Ahsanulla

\ov:dhry v. Amarchand Kwndu, 1. L. B. 17 Cole.

S, referred to. Baqar Ali Khan v. Anjvman
\'aBegam, I. L. B. 2-> All. 236, discussed. Held,

rther, that the plaintiffs' father having pre-
I ceased the widow of their uncle, the testator, to
'lom a life estate had been given by the will,
jfin if the M'aqf was invalid and if the inheritance
.nsequently opened upon the death of the widow,

U the surviving brother, who was alive at the
■ ath of the widow, would succeed to the exclusion

the plaintiffs, his deceased brother's children.

assamut Hvmeeda v. Mussamid Buldun and

• Government, i: W. B. 525, and Abditl Wahid
,i«n V. A'vran Bibi, I. L. B. 11 Calc. 597, referred

Muhammad Ahsan v. Umar Daraz (1906)

I. L. K. 28 All. 633

'^- ■ Waqf — Testa--

["^ry waqf — Mortgage of waqf property — In-

yative waqf. Though waqf may be created by a

I, it does not follow from this that it must be an

' tive transaction. Abdul Kari.m v. Sofian-

(1906) . . I. L. B,. 33 Calc. 853

' Wahf—State-

■n a will that the testator had at a former time
'way or set apart property to charity — Not a

• mentary devise — Absence of actual delivery —

MAHOMEDAN LAW— Eif DOWMENT

— contd.

Beasonably clear intention. A mental act although
afterwards sufficiently expressed in conduct will
not, unless clothed in appropriate words, create a
wakf. Per Curiam : We do not think that a
mere statement in a will of some gift in the past
can be referred back to the date still undetermined,
when that gift is afterwards alleged to have been
made, or that such a narrative .statement can in
any view be an adequate substitute for the oral
declaration of dedication to God, which the Maho-
medan law appears to us imperatively to require
synchronously with the act of dedication itself.
There is a plain distinction between giving
charity and declaring that one has given in charity.
And for the purpose of fixing the origin of the
wakf, if there was a ualf at all, the mere state-
ment in a Mill that at some past date the testator
had set apart such and such funds for charitable
objects is of comparatively slight value. Where
there has been no actual delivery, a reasonably clear
declaration is necessary to create a wal:f. Banubi
V. Narsin«rao (1906) . L L. R. 31 Bom. 250

79. Waqfnamah,t,uit

for setting aside — Substantial dedication — In-
tention of u-aqf — Ulusory trust — Delivery of posses-
sion of ivaqf property to Mvtwalli — Evidence to
shoiv that there was no intention to give effect to
trusts and. that trusts were in fact not given effect to,
relevancy of — Waqf of shares in a Company, if
valid. In a suit for setting aside a waqfnamah on
the ground that the trusts are illusory and that there
has been no s-ubstantial dedication to religious and
charitable trusts, the question before the Court is
whether there was a real intention to give effect to
the document as a waqfnamah. The intention of
the settlor mu.st be gathered from the document
itself. If the waqf was formallj- constituted and
perfected and established by its terms a substantial
charitable trust, it is wholly immaterial, whether its
provisions were carried out or not, for that is a
matter of breach of trust only. Evidence given to
show that it was never intended to give effect
to the trusts and that in fact they were not given
effect to, is irrelevant in such a suit. Evidence,
however, showing the manner in which the docu-
ment is related to existing facts, e.g., the value
and state of the tcaqf properties, is relevant. Ac-
cording to Mahomedan law a waqf cannot be
created of sharers in a Company. Fatima Bibi v.
Ariff, 9 C. L. B. W, followed. Sakina Khanvm
V. Luddun Sahiba, App. from 0. D. 110 of 19iili,
10th June 1902, dissented from. Oriental Bank v.
GovindLallSeal,!. L. B. 9 Calc. '07, referred

to. KULSOM BiBEK >: GOIAM HOSSEIN CaSSIM

Artff (19U.'5) . . . 10 C. W. N. 449

80, - Bight of a female to be ap-
pointed mutwalli — Beligious trust — Mutwalli
— Consent decree giving preference to lineal des-
cendants of settlor — Senior lineal descendant a
woman and a Bahee — Unorthodox Mahomedan —
Discretion of Court in selection of trustee under
decree giving it power to appoint. By Mahomedan

( 7919 )

DIGEST OF CASES.

( 7920 )

MAHOMEDAN LAW— ENDOWMENT

— contd.

law there is no legal prohibition against a woman
holding a rautwalliship, when the trust by its
nature involves no spiritual duties such as a woman
could not properly discharge in person or by
deputy. A consent decree made by the High Court
at Calcutta on appeal from a decision of the Recor-
der of Rangoon directed that the trustee of a
Mahomedan religious trust should retire, " and
that a new trustee be appointed in his place by the
Chief Court of Lower Burma, preference in such
appointment being given to the lineal descendants of
the settlor. ' ' The settlor was a Mahomedan of the
Shiah sect. His eldest, and only really eligible,
lineal descendant was his daughter, the appellant,
who claimed the right to be appointed. She,
however, was not an orthodox Mahomedan, but a
Babee. The Judge exercising Original Civil
jurisdiction in the Chief Court found that she was
not disqualified either by her sex or on the ground
that she was a Babee, and appointed her mutwalli
of the trust. The Judges on the appellate side of
the Chief Courts, while agreeing with the first Court
that the lady was not disqualified, held that in
selecting a trustee they had a discretion, which they
exercised by declining to appoint the appellant,
who (they held) could only discharge many of the
duties of the trust by deputy, and as a Babee would
not take such interest in the religious observances
of the Shiah School as one of the Shiah sect : — Held,
by the Judicial Committee, that the Chief Court
had a discretion in the appointment of a trustee,
which under the circumstances they had rightly
exercised. i/eZrf, also, that no absolute right of the
lineal descendants of the settlor to be appointed
was established by the authorities cited in the
present case, in which the settlor had not prescribed
anj' line of devolution. Shahoo Banco v. Aga
Mahomed Jaffer Bindaneem (1906)

I. L. R. 34 Gale. 118 ; L. R. 34 I. A. 46

81. Administration of "waqf

estate — Rights of waqifs — Practice of Court —
Scheme of administration — Charter of Incorpora-
tion superseded. The wakf properties in suit,
situate at Port Louis in the island of Mauritius,
were as to a considerable portion of them succes-
sively purchased from 1852 onwards for the whole
Mahomedan congregation of the island consisting
of Indian immigrants from Cutch, Hallal and Surat,
all of the Soonee School and their descendants, and
were dedicated by the deeds inalienably for the
purpose of a mosque. The overwhelming majority
of the congregation belonged to the Cutchee class
and in 1877 the deeds of purchase for the first time
declared that the properties comprised therein
were bought on behalf of the Cutchees ; a com-
mittee of whom was Ho administer them and all
other properties belonging to the mosque. Later
purchases were expressed to be made, some on behalf
of the Cutchees, others on behalf of the congrega-
tion. In 1903, two deeds were executed by a body
of Cutchees by which they formed themselves into
a society afterwards incorporated under Ordinance
21 of 1874 for certain pious and charitable purposes

MAHOMEDAN LAW—ENDOWMEN'

— concld.

and declared that they brought into the society i
full ownerships all the said purchased property
with extensive powers of selling and letting tl
same, other than the mosque and its accessorie
of which latter they reserved to themselves tl
exclusive management. In actions brought re
pectively by the Hallaye and Soortee classes tl
Court below ordered both deeds to be set asid
so far as they gave exclusive administration ■
right to the Cutchees and substituted for the porti(
thus set aside a scheme giving to the plaintiffs
share in the administration, but subject to futu
modifications -.—Held, on appeal, that as the dee'
could not be mentioned consistently with the rig':!
of the plaintiffs they should be set aside in U .
Held, further, that as the charter of incorporatii
in consequence became inoperative the amendii;
scheme must also be set aside. The Court coxi
neither grant a new Charter nor under the circul-
stances amend thd superseded one. Ibkam
EsMAEL V. Abdul Caerim Purmamode

L. R. 35 I. A. IL

82. Decree directing sale f

waqf property — When judfjment-debtor ohjis
as trustee, claim falls within s. 278 and the or,r
on such claim is not appealable. When the'ju;-
ment-debtor or his representative objects to «
attachment and sale of property in executionin
the ground that he holds the property in trust It
some third person or a charitable institution, ;e
claim must be investigated under the provisionsf
ss. 278—283 of the Code of Civil Procedure and ^t
under s. 244. An order passed on such claim irit
be challenged by a regular suit and not by app'l.
A decree directing the sale of waqf property ny,
in certain circumstances, be valid. Such a deise
is not against public policy and is not necessaiy
ultra vires. Budrudeen Sahib v. Abdul Rajm
Sahib (1908) . . I. L. R. 31 Mad. »

83. "Validity of waqf— Simni-

Provision for celebration of anniversary of Ipi-
of Ali Murtaza, expenses of the Muhnrram M
the death anniversaries of members of the famUvj
the ■walcif, also for repiirs of imamhara — Waqf H
to he valid. A Muhammadan lady belonging toae
Sunni sect purported to make a waqf of allpr
property and provided that a sum amountinjfco
decidedly the larger portion of the income ofpe
dedicated property should be applied annuly
towards the following purposes, viz., the celefar
tion of the birth of Ali Murtaza, the expensejof
keeping tazias in the month of Maharram,pe
anniversaries of the deaths of members of P^
waqifs family and the expenses for repairs op
imambara which the waqif had built, and declpd
that the property had been dedicated to GodM
charitable and religious purposes : Held, thatme
dedication was not illusory ; there was an intenpn
of creating a substantial waqf for pious and chit-
able purposes, and the objects for which the t^X}
was created were valid. Biba .Tan v. Kalb Hc,^'^
(190b) . . . I. li. R. 31 A11.36

( 7921 )

DIGEST OF CASKS.

( 7922 )

MAHOMED AN LAW— GIFT.

1. Law applicable to

2. Construction

Validity
Revocation

Col.
7921
7921
7924
7947

See Compromise — Construction, enfor-
cing, EFFECT of, and SETTING ASIDE

Deeds of Compromise

6 Bom. A. C.j77
See Deed — Construction.

I. li. R. 13 All. 409
See Limitation Act. 1877. Art. 91.

I.-L. R, 11 All. 458
See M.VHOMEDAN Law — Marz-ul-Maut.
1. LAW APPLICABLE TO.

1. Law of equity and good eon- j

science — Cases oj inheritance, marriage, and caste. \

The application to Mahomedans of their own laws in j
cases other than those coming under the denoraina-

tioa of inheritance, marriage, and caste {e.g., in case j

of gifts), is the administering of justice according I

to equity and good conscience. Zohooroodeen j

Sirdar J'". Baharoolla Sircar W. R. 1864, 185 !

2. Questions as to gift arising !

ia.SViits— Bengal Civil Courts Act {VI of JSTl), \
f. 24. Under s. 24 of Act VI of 1871, Mahomedan
law is not strictly applicable to questions relating to
gift arising in suits, but it is equitable as between
Mahomedans to apply that law to such questions.
Shumshoolnissa v. Znnn\ Beebee . 6 W. W. 2

Agra F. B. Ed. 1874, 286 j

3. Mushaa — Undivided shares in j

land — Shares in Companies — Validity of Gift. As-
suming that the law of Mushaa, which prohibits ■
gifts of undivided shares of divisible property, ,
applies to the succession of Jlahoraedans who I
reside in Rangoon, it does not apply to a gift |
by will of undivided shares in freehold land and of
shares in Companies. Mumtaz Ahmad v. Zubaida j
■fan, L. R. U' I. A. 20'), followed. Concurrent j

' findings that deeds of gift were not executed by the j

I'lnor under pressure of the sense of imminent 1

th upheld and approved. Ibrahim Goolam i

IF v. S.UBoo (1907) . I. L. R. 35 Calc. 1 1

L. R. 34 I. A. 167 : 11 C W. N. 973 i

2. CONSTRUCTION.

i !• Donee from Mahomedan

I widow— T//Zf. Held, that a donee holding from
I a Mahomedan widow does not acquire a better
I title to the property than the donor herself had.
i Mahomed Noor Khan v. Hur Dyal 1 Agra 67

MAHOMEDAN LAW— GIFT con<<i,

2. CONSTRUCTION— con<ci.

right to claim her .share, in lieu thereof she received
an allowance of cash and grain. The surviving
brother made an arrangement with her, which was
carried into effect by document.?. By one instru-
ment he granted two villages to her. By another
she accepted the gift, giving up lier claim to any
part of the ancestral estate of her husband. The
first instrument, inter olid, stated as follows : " I
declare and record that the aforesaid sister-in-law
may manage the said villages for herself and apply
their income to meet her necessary expenses and to
pay the Government revenue:" — Held, that these
words did not cut down previous words of gift to
what in the Mahomedan law is called an ariat ; and
that the transaction was neither a mere grant of a
license to the widow to take the profits of the land
revocable by the donor nor a grant of an estate
only for the life of the widow. It was a hihhah-hil-
iwaz, or gift for consideration, granting the villages
absolutely. Mahomed Faiz Ahmed Khan »•.
Ghulam Ahmed Khan . I. L. R. 3 All. 490
L. R. 8 I. A. 25

3. Transfer of absolute estate—

Condition — Sunni law — Shiah law. The owner of
a house made a gift thereof to certain persons " for
their residence, and that of their heirs, generation
after generation," declaring that, if the donees sold
or mortgaged the house, he and his heirs should
have a claim to the house, but not otherwise : —
Held, that under Mahomedan law, whether that by
which the Shiahs or that by which the Sunnis were
governed, the house passed by the gift to the donees
absolutely, the declaration by the donor as to the
effect of an alienation by the donees being in the
nature of a recommendation, and not bavins the
effect of limiting the estate in the house itself.
Nasir Husain v. Sughra Beoum

^ ILL. R. 5 AIL 505

Deed of gift— Will— Validity of

-'■ Gift for consideration —i?e-

''>le grant — Construction of inslrum''>it of gift.

of two brothers, co-sharers in ancestral lands,

'lii'd leaving a widow, who thereupon became

entitled to one-fourth of her husband's share of

the family inheritance. Without relinquishing her

declaration of title. Held, that a document to the
following effect was a deed of gift and not a will :
" I have no children. Therefore my own brother,
Mir Hemdoola alias Chotay Saheb, in his lifetime
placed in my lap his infant son, Mir Ruhulla. of his
own free will and accord. From that day, liaving
taken the said Mir Saheb into my family. I adopted
him as my son. Consequently he is being brought
up entirely by me, and he alone is also my heir.
And I have appointed him the owner of aU my
goods and property. . . I have made over the
same to the possession of the said Mir Saheb . .
I have a share in the goods and property of my hus-
band, Mir Afzaloodin Khan Saheb, the Nawab of
Surat. The owner thereof also is the same Mir
Saheb. Tliereforc in my lifetime should this pro-
perty come into my hands. I will also deliver the
same into the possession of the said Jlir Saheb.
Because the said Mir Saheb being the heir of all my
goods and property. I have constituted him the
possessor thereof by virtue of ownership. He is
therefore the owner. And after me, should this

( 7923 )

DIGEST OF CAS I

7924 )

MAHOMEDAN LAW— GIFT— cowi^Z.

2. CONSTRUCTION— contd.
property be divided, then the said Mir Saheb is
the owner and absolutely entitled to receive my
portion by the aforesaid right, by the right of
ownership of my share, from the Court of His
Honour the Agent. No one shall oppose him."
Held, further, that, even if the direction in the
above document as to making the grantee of the
document the owner of the grantor's share in her
husband's property be regarded as a declaration of
title, such declaration had, according to Mahome-
dan law, no validity to create a proprietary right in
the said share after the grantor's death. Kavab-
BAi V. Alam Khan . I. L. R. 7 Bom. 170

5. Gift — Possession,

transfer of, ly the donor — Relinquishment of a share
by a Mahomedan in the property of the deceased —
Valuable consideration — Transfer of Property Act
(IV of 1882), s. 53 — Fraudulent transfer— Good
faith. To facilitate the action of the Collector in
obtaining the certificate of guardianship to the
property of a Mahomedan minor, under the Guar-
dian and Wards Act' (VIII of 1890), 31, the uncle
of the minor, relinquished in favour of the minor,
the share to which he was entitled in the property
of his deceased brother, the father of the minor girl.
The certificate was duly obtained by the Collector.
The plaintiff, a judgment-creditor of M, then sued
the minor for a declaration that ilf's share in the
property of his brother, which he had relinquished,
was liable to attachment and sale in execution of
his decree. The lower Court decreed the plaintiff's
claim on the grounds that the relinquishment was
not valid and binding upon the donor under the
Mahomedan Law, since being a gift it had not been
accompanied and perfected by possession and that
it was void against ili's creditors under s. 53 of the
Transfer of Property Act (IV of 1882), because it
had been made with intent to defeat, delay or
defraud them : — Held, that the relinquishment by
31 of his share in the property of his brother was
not a gratuitous transaction, but was supported
by valuable consideration, since as consideration for
the Collector's undertaking the responsibility of ad-
ministrator of the minor's property, he agreed to
relinquish his share to the minor : the relinquisli-
ment was not a mere gift, but was supported by
consideration which the law regards as valuable,
and that, therefore, the rule of Mahomedan law,
which requires that a gift must be accompanied by
possession to render it valid and binding upon the
donor, did not apply to the transaction. Held,
further, that as the transfer was made by 31
honestly with the intention of parting with his share
in favour of the minor for the purpose of removing
the difficulties in the way of the Collector's applica-
tion then pending and of enabling him to obtain a
certificate of guardianship to the minor, and as it
was not a contrivance resorted to for his own
personal benefit, it was not void under s. 53 of the
Transfer of Property Act (IV of 1882). Maha^ni-
madunissa Begum v. J. C. Bachelor (1905)

I. L. R. 29 Bom. 428

MAHOMEDAN LAW— GIFT— confef.
2. CONSTRUCTION— coTicZfZ.

6. ^ Usufruct— Gift— Aria f. Held

upon application for review of judgment in thi
case of 3Iumtaz-nn-nissa v. Tafnil Ahmad, I. L. R
28 All. 264 ; All. Weekly Notes (1905) 269, tha
what was decided in that case was that thi
transfer there in question was not an absoluti
gift, so that any limitation or condition limiting i
would be void under the Mahomedan law, but that
taking the transaction as a whole, it was a grant o
the usufruct of the property to Musammat Habib
un-nissa for her life. It was not intended to h
laid down tliat the transfer being an ariat wa
invalid. Khalil Ahmed, In the matter of. (1908
I. L. R. 30 All. 30!

7. Transfer of property in liei

of doTver-debt, whether gift or sale Hib

bil ev;a2 — Registration — Consideration, what is suffi
dent — Koran, copy of. A transfer of immove
able property by a Mahomedan to his wifi
purporting to be " made in consideration of i
dower-debt of R49 " and " on account of right o
inheritance," was held to be a sale and as sucl
governed by the provisions of s. 54 of the Transfe;
of Property Act. It was wrongly described as i
hiba bil ewaz. A copy of a Koran is a valid consi
deration for hiba bil ewaz. Semble : S. 129 of th.
Transfer of Property Act excepts only gifts mthoui
consideration from the operation of the Chapter oi
Gifts. Abbas Ali Shikdae v. Kaeim Baks
Shikdar (1908) . . . 13 C. W. N. 16

3. VALIDITY.

Death-bed gift- Donatio marti

causa — Deed of gift. According to the Mahomedai
law, in order to make a gift operate as a donatii
mortis causa, the delivery must be upon the condi
tion that it should become effectual as a gift on th'
death of the donor. Where therefore it was fount
that a deed of gift was executed in the last illnes;
of the donor, and was in the possession of the donet
after her death : — Held, that this was not enough
make it operate as a donatio mortis causa, but tha
it was necessary to find the further fact, whethe
the deed was delivered by the donor before he
death and whether such clelivery was in contem
plation of death, and with the intention that
should become effectual on the death of the dottOi
Nttssebtjn Bibee v. Ashruff Axly

r Marsh. 315 : 2 Hay 16!

2. ^ Legacy. Accord

ing to Mahomedan law, a gift on a death-bod i-
viewed in the light of a legacy. Ashadoollah v
Shaeba Jhasors ... 2 Hay 341

3. Gift in contemplation o:

death — Will. According to the Mahomedan law
a gift made in contemplation of death, though no<
operative as a gift, operates as a legacy. Ordinarilj
it conveys to the legatee property not exceeding onel
third of the deceased 's whole property, the remain
ing two-thirds going to the heirs. In the absence d

( 7925

UKJEST OF CASES.

( 7926 )

MAHOMEDAN" LAW— GIFT- confcf.

3. VALIDITY— contd.
heirs, a will carries the whole property. Ekin j
Bebee v. Ashbttf Au . • 1 W. R. 152 ]

^ . . . Will — Person

labouring under sickness of which he dies. Accord-
ing to Mahomedan law, if a person executes a gift
while labouring under a sickness from wluch he
never recovers, and which ultimately, proves fatal
to him, effect can be given to the instrument only
to the extent of one-third. Kureemun v. IMullick
En-aet Hossein ■ . . W. R. 1864, 221

5_ _ _ . Will — Consent of

htir;-. A deed of gift, such as a tuluknamah, exe-
cuted at a time when the grantor was labouring
nnder a sickness from which she never recovered,
cannot operate save as a will. If such a death-bed
gift or will is made in favour of one who is an heir,
the will or gift, so far as it relates to that heir, will
be inoperative without the consent of the other
heirs. Ashruffunnissa v. Azeemun. Baroda

KOOERY V. ASHRUFFUXNISSA . 1 W. R. 17

e^ Will — Disposi-

fi'on in favour of heir — Consent of other heirs. A
Mdhoniedan executed in favour of his wife an instru-
ment which purported to be a deed of gift of dU his
property. At the time when he executed this instru-
ment he was suifering from an illness likely to have
caused him to apprehend an early death, and he did
in fact die of such Illness upon the same day. There
was no evidence that any of his heirs had consented
to the execution of the deed. After his death his
brother sued the widow to set aside the deed as
invalid -.—Held, that the instrument, though pur-
porting to be a deed of gift, constituted, by reason of
the time and other circumstances in which it was
made, a death-bed gift or will, subject to the con-
ditions prescribed by the Mahomedan law as to the
consent of other heirs, and those conditions not
having been satisfied, it not only fell to the ground,
but the parties stood in the same position as if the
document had never existed at all. Wazip. Jan v.
Altaf Ali . . . I. L. R. 9 All. 357

Death-bed gifts —

Consent of heirs — Musha — Delivery of possession
—Undue influence. A Mahomedan on 27th Febru-
ary executed two deeds of gift, by one of which
(attested by all his sons) he conveyed his one-fourth
share in a 'certain mitta to his daughters ; and by
the other (attested by all his daughters) he conveyed
the rest of his landed property to his son. The
donor died on Cth March, and it was found on the
■evidence that the above dispositions of his property

i were death-bed-gifts. It appeared that the donor
had separate possession of the land disposed of by

i him though part of it was held under joint pottahs,

I In which others were interested ; and also that on
date of the gift the transfer of ownership of the
mitta property was proclaimed by beat of tom-
tom, and that the tenants were 'called upon to

; attorn to the donees, who subsequently collected
rent. The widow took no exception to the gifts,
but after two years one of the daughters brought

MAHOMEDAN LAW- GIFT— coaW.

3. VALIDITY— contd.
this suit to have them set aside as invalid and to
recover her share as an heiress of her father : Held,
(i) on the evidence that the attestation of the heirs
was regarded by all the parties concerned as evi-
dence of consent, and that they did consent to the
death -bed gifts at the time they were made ; (ii)
that this consent not having been revoked on the
donor's death, and there having been sufficient
delivery of possession, the gifts were complete ;
(ii,) that the gifts were not impeachable on the
ground of musha. Evidence of undue influence
considered. Sharifa Bibi v. Gulam ^Mahomed
Dastagir Khan . . I. L. R. 16 Mad. 43

Lease granted

during illness. A mokurari lease, extended where
the grantor was dangersouly ill and in contemplation
of death, was held to be a death-bed gift, and his
natural heirs declared incapable of taking anj-thing
under it except their shares of the defendant's pro-
perty according to Mahomedan law. Enaet
HossEiN V. Kureemoonissa . 3 W. R. 40

9. Gift by person

labouring under disease. Under the INIahomedan
law, the term ' ' marz-ul-maut ' ' is applicable not
only to diseases which actually cause death, but to
diseases from which it is probable that death will
ensue, so as to engender in the person aiiected with
the disease an apprehension of death. Under the
same law, a person labouring under such a disease
cannot make a valid gift of the whole of his property
until a year has elapsed from the time he was first
attacked by it. When a gift is made by a person
labouring under such a disease, it is good to the
extent of one-third of the subject of the gift, if the
donee has been put into possession by the donor.
Labbi Beebee v. Bibbun Beebee 6 W. W. 159
10. — Cift during mor-
tal illness — Donatio mortis causa — Marz-ul-maut.
The Hanifi rules with regard to the subject of
marz-ul-maut gifts are not exhausted by the dictum
expressed in the case of Mahomed GuUhere Khan v.
Mariam Begam, I. L. R. 3 AU. 731, but in deter-
mining whether the donation of a Mahomedan
1 suffering from a mortal illness comes within the
dictum applicable to marz-ul-maut gifts, several
questions have to bo considered, viz., (i) Was the
donor suffering at the time of gift from a disease
which was the immediate cause of his death ?
(ii) Whether the character and nature of the disease
was such as to induce the donor to believe that
death would bo caused thereby or to eugender in
him the apprehension of death ? (iii) Was the
illness such as to incapacitate him from the pursuit
of his orduiary avocations or standing up for prayei-s,
a circumstance which might create m the mind of
the sufferer an apprehension of death ? (iv) Had
the illness continued for such a length of time as to
remove or lessen the apprehension of immediate
fatalitv or to accustom the sufferer to the malady ?
The limit of one year, mentioned in the law books,
does not lay down any hard-and-fast mle regarding
the character of the'ilhiess ; it only indicates that

( 7927 )

DIGEST OF CASES.

( 7928 )

MAHOMEDAN LAW— GIFT— con^rf.

3. VALIDITY— contd.

a continuance of the malady for the length of times
may be regarded as taking it out of the category of
a mortal illness. Hassaeat Bibi v. Golam Jaffar
alias Fakherullah . . 3 C. W. N. 57

11.

Absence of im-

mediate apprehension of death — " Marz-ul-mant.'^
According to Mahomedan law, a gift by a sick
person is not invalid if at the time of such gift his
sickness is of long continuance, i.e., has lasted for a
year, and he is in full possession of his senses, and
there is no immediate apprehension of his death.
Labhi Bibi v. Bibbun Bibi, 6 N. W. 159, followed :—
Held, therefore, where at the time of a gift the donor
had suffered from a certain sickness for more than a
year and was in full possession of his senses, and
there was no immediate apprehension of his death ,
and he died shortly after making the gift, but
whether from such sickness or from some other
cause it was not possible to say, that under these
circumstances the gift was not invalid according to
Mahomedan law. Mahomed Gulshere Khax v.
Mariam Begum . . I. L. R. 3 All. 731

12. Absence of im-

viediale apprehension of death. Semble : A gift
by a sick person is not invalid if at the time he
made it he was in full possession of his senses and
there was no immediate apprehension of death.
Jbhbam v. SuLEMAiSr . I. L. R. 9 Bom. 146

13. Gift in lieu of

debt for dower — Saie — Dower. Held, that the pro-
visions of the Mahomedan law applicable to gifts
made by persons labouring under a fatal disease do
not apply to a so-called gift made in lieu of a dower-
debt, which is really of the nature of a sale. Gnu-
XAM Mustafa v. Hurmat . I. L. R. 2 All. 854

14. Deed of sale— Jo/w< gift —

Without discrimination of shares. Where a coii-
veyance between Mahomedans, though in form a
deed of sale, is in reality a gift, its validity should be
tested by the niles of law applicable to gifts, and not
by those applicable to deeds of sale. In determin-
ing whether a transaction is one of sale or gift the
intention of the parties, rather than the form of the
instnmient used, should be considered. A deed of
gift, in English form, of a house to three persons as
joint tenants (without discrimination of shares) is
good according to Mahomedan law, as it shows an
intention on the part of the donor to give the pro-
perty in the whole house to each of the donees. A
gift by a Mahomedan in Bombay which contravenes
the principles of English Courts of equity with
regard to gifts to persons standing in a fiduciary
relation to the donors will not be upheld. Rajabai
V. Ismail Ahmed . . 7 Bom. O. C. 27

15.

Deed of gift altering suc-

cession of property by Isi-w— Intention of
parties. Where a Mahomedan transferred certain
property (Company's paper) to his son, reserving the
interest to himself for life, the object of the disposi-
tion being to give the son a larger share of
the father \s property than would come to him by

MAHOMEDAN" LAW— GIFT— cor.//.

3. VALIDITY— ro-rt/f/.

succession ab intestato .—Held, that the transaetio
could not be impeached on moral grounds, as
design to alter the disposition of property so as t
defeat a succession by an alienation, which the la-
allows, is simply a design to conform to the la-
while working out an unforbidden object. Heli
also, that the intention of the parties did nc
violate any provision of the Hedaya, and tb
transfer was complete and the gift valid. Umja
Ally Khan v. Mohumdee Begum

10 W. R. P. C. 25 : 11 Moo. I. A. 51

16. YLxba-hil-Ywaz—Effnt o

upon heirs. A hiba-bil-iwaz differs from an out-an<
out sale as well as from a gift, while it partakes
the character of both, and, if supported by sufficiei
consideration, is binding under the Mahomedan la
upon the heirs of the party executing such deec
Solah Bibee v. Keerun Bibee • 16 W. R. 17

17. Condition i

good behaviour. A gift is not necessarily hiba-bi
iwaz by an allusion in the deed to the good behav
our of the donee, and his supplying a ceitai
amount to the donor to enable the latter to d
.'ome act in respect of the property. Ussr
AsLT Khan v. Olfut Beebee . 3 Agra 23

18. — Alienation by Mahomeda

Isidy— Consent of children. A Mahomedan lad
can sell or give away her property as she please
When a mother makes a gift to her children, and or
of them seeks to set it aside as fraudulent so far .'[
it affects the plaintiff's right of inheritance, so lorj
as the mother is alive and admits the execution '
the deed of gift, the plaintiff is not in a positif
to disturb it ; and it is quite immaterial in such
case whether the plaintiff's consent was or was m
given. Mahomed Zuheerul Huq v. Butoolun

1 W. R. 7

19, - Gift on dent

bed — Will. A Mahomedan widow, or any oth
woman, holding property in her own right, may gr
it away to whomsoever she pleases, unless
delays the gift till upon her death-bed, when su(
a gift would be looked upon as a will, and I
inoperative beyond a certain limit. Luteefoo:
issA Bibee v. Rajaoor Ruhman . 8 W. R. £

20. Gift to take effect at a

indefinite future time—Mapillas. Gifts to ta.
effect at an indefinite future time are void and
Mahomedan law. ChekkoneivUtti v. Ahmed

I. L. R. 10 Mad, It

21. Delivery of possession

Possession with mortgagee — Sale — Minors. A Mah
medan lady executed a deed of gift in favour
the plaintiff, who was at the date of its executioi
minor, of certain lands including the land in d
pute) of which she professed to have obtained p<j
session under a decree against her co-parceners. 11
plaintiff, on the strength of the deed of gift, sued V
a declai'ation of his right to the land, alleging thji
the donor had actually recovered possession t
execution of her decree. The Original and App«-

( 7929

DIGEST UF CASKS.

( 7930 )

MAHOMEDAN LAW- GIFT- co«<(/.

3. YALWlTY—contd.
late Courts fouml that the defendant was, at the
date of the deed of gift, in actual possession under
a mortgage executed by the donor's co-parceners
and that she had failed, in executing her decree, to
eject the defendant: Held (Kemball, </., dissen-
(iente). that at the date of the deed of gift the donor
, was simply the owner of property which was in
possession of a mortgagee, and could not, under
Mahomedan law, make a gift of it, although she
could sell the same. See Adam Khan v. Alarakhi,
/. L. R. (> Bom. 645. When the donee is a minor,
jxissession may be had by a trustee on his behalf.
MoHixuDix V. Manchershah

I. L. R. 6 Bom. 650

Gift of share before parti-

lon — Co-sharers. According to the Mahomedan
law, one of two sharers can give over his share
to the other even before partition. Ameexa
BiBEE V. Zeifa Bibee . . . 3 W. R. 37

Gift without delivei'y of

possession — Habi-bil-hvaz, or gift on stipula-
'ion — Possession necessary for svxh a yift — Regis-
'ration not equivalent to delivery of possession so
'IS to validate gift. By a deed of gift diily executed
md registered a Mahomedan woman gave certain
^oroperty to the plaintiff 's father. The deed stated
hat the plaintiff's father had always protected the
lonor, and that she gave him the property in full
lOafidence that he would continue to do so : — Held,
hat the gift, if not a simple gift, was at any rate a
'gift on stipulation," and that such a gift, in order
0 be valid, required that seisin should be given to
he donee. The registration of a deed of gift
letween Slahomedans does not cure the want of
lelivery by the donor. Mooulsha v. Mahamad
'AHEB . . . I. li. R. 11 Bom. 517

24, Gift of undivided property

-Muslut, or confusion — Chaw;ie of possession.
Vhere there is, on the part of a father or other
uardian of a minor, a real and hond fide intention to
lake a gift to the minor, the Mahomedan law will
•e satisfied without actual change of possession,
lUd will presume the subsequent holding of the
iroperty by the father or guardian to be on behalf
'f the minor. Where the subjects of a gift are
lefinite shares in certain zamindaris, the nature of
lie right in which is defined and regulated by the
ublio Acts of the British Government, so that they
3nn for revenue purposes distinct estates, each
laving a separate number in the Collector's books,
ad each liable to the Government only for its own
•ssessed revenue, the proprietor collecting a definite
^hare of the rents from the raiyats, and having a
ight to this definite share and no more, the rule of
he Mahomedan law as to musha which makes the
lift of undivided property invalid, does not apply,
'ttore ; Whether the law relating to musha applies
.) those cases in which the owner gives all his own
|itere!3t in undivided property. Ameeroonissa
3AT00N t'. Abadoonissa Khatoon

15 B. L. R. 67 : 23 W. R. 208
L. R. 2 I. A. 87

MAHOMEDAN LAW— GIFT— cow^ri.

3. \ XhUn'VY—contd.

25. Gift of property not in

possession — Gift of zamindaris hi out on lease,
and mulikuna rights — Musha as applied to gifts of
unparlitioned and undivided hinds. The rule of
Mahomedan law that no gift can be valid unless the
subject of it is in the possession of the donor at the
time when the gift is made, has relation, so far as it
relates to land, to cases %\here the donor professes to
give away the possessory inteiest in the land itself,,
and not merely a reversionary right in it. What is
usually called possession in this country is not only
actual or khas possession, but includes the receipt of
the rents and profits. There is nothing in ilaho-
medan law to make the sift of a zamindari, a part or
the whole of which is let out on lease to tenants
invalid. Nor is there any principle by which to
distinguish malikana rights from the right to receive
rents or dividends upon Government securities, and
gifts of such a nature may be legalh' conferred under
the Mahomedan law. The doctrines of Mahomedan
law which lay down that a gift of an undivided share
in property is invalid because of musha or confusion
on the part of the donor, and that a gift of property
to two donees without first separating or dividing
their shares is bad because of musha on the part of
the donees, apply only to those subjects of gift
which are capable of partition. Mullick Abdool
GuFFOOR V. MuLEKA . L L. R. 10 Calc. 1112

26. Hiba, or deed of

gift — Gift by husband to wife — Possession — Con-
tinued receipt of rents by husband — Husband,.
Manager for wife — Gift of " musha " or undivided
part — Subsequent partition. In 1871 H G, a
Mahomedan, executed a formal hiba or deed of gift,
to his wife, the defendant, of a house belonging to
himself, but let out to tenants, and duly registered
the deed. In 1876-77 ho caused the house to be
transferred into the name of his wife in the municipal
and fazandari books. After the execution of the
deed of gift, and down to the time of his death in
1884, H G continued to collect the rents as before,
and they were entered in his books and drawn upon
for family purposes in the same manner as they had
always been. In 1881-82 H G had an account of
the rents of the house prepared in his wife's name
from 1871-72 up to date : Held, that the above
circumstances afforded sufficient evidence of pos-
session having been given to the defendant, either
in 1871 or 1876 to satisfy the requirements of
Mahomedan law. H G, being the husband of the
defendant, would naturally continue to collect the
rents as her manager, even when he regarded
himself as having parted with the ownership to hLs
wife, which the above-mentioned cii'cumstances
showed that he did. In 1S83 H G executed a
second hiba, duly registered, to the defendant, of
an undivided moiety of the house in which he and
the defendant resided, and to which H G and his
brother were entitled in equal shares. No partition
had been made bet\\een A G and his brother when
H G died : Held, that the gift was invalid, as being
a gift of a " musha," or undivided part, in a thing
susceptible of partition. Qucsre : W'hether if

( 7931

DK^IiST OF CASES.

( 7932 )

MAHOMED AN LAW— GIFT— cortjZ.

3. VALIDITY— cortid.

there had been partition subsequently to the deed ,
that would or would not have operated to validate
the gift. Emnabai v. Hajirabai

I. L. R. 13 Bom. 352

27.

^ Pension — Gift

of tnu-'iha — Undivided part — Ascertained share —
Transfer of possession — Mutation of names —
Delivery of title-deeds — Bengal Civil Courts Act
(IV of iSn), s. 24— Pension Act (XXIII of 1871),
s. 7, cl. (2). A pension of the nature described in
Act XXIII of 1871 (Pensions Act), s. 7, cl. (2), was
drawn by a Mahomedan, in whose name alone it was
recorded in the Government registers, for himself
and the other members of his family, who, up to the
time of his death, received their shares from him.
Shortly before be died, he executed a deed of gift in
favour of his wife, which purported to assign to her
the whole pension. No mutation of names was
effected in the Government registers, but the deed
of gift and the sanads, in respect of which the
pension had originally been granted, were handed
over to the donee. After the death of the donor,
one of his sisters brought a suit against his widow
to establish her right (i) to receive the share in the
pension which she had inherited from her father
and received up to her brother's death, and (ii) as
heir to her brother himself, to the share which he
had inherited. It was contended on her behalf
that the deed of gift was in any case ineffectual as
an assignment of more than the donor's own
interest, and further that it was invalid even as an
assignment of his own share, inasmuch as, under the
Pensions Act, the pension could not be made the
Bubject of gift, and under the Mahomedan law it
was " musha " and not transferable, and actual
delivery or transfer of possession was, under the
same law, essential to the completion of the gift,
but no such delivery or transfer had been effected :
Hi Id, that the deed of gift was not a good assign-
ment in law of the interest of the plaintiff, who was
not a party thereto, and the defendant could take
nothing more than the donor's own interest. Held,
that whatever might be the Mahomedan law apart
from the Pensions Act, under s. 7 of the Act, the
pension or any interest in it was capable of being
alienated by way of gift, the subject of the gift be-
ing not the cash, but the right to have the pension
paid. Held, that there was no force in the conten-
tion that the gift became void because the right was
not divided, inasmuch as in the case of aright to
receive a pension the rights of the individuals who
are the heirs became at once divided and separate
at the death of the sole owner ; and in this case the
shares were definite and ascertained and required
no further separation than was already effected
upon the sole o\vner's death. Held, that the rule
of the Mahomedan law as to the invalidity of gifts
purporting to pass more than the donor was entitled
to, was based upon the principle of " musha " or
nndivided part, and had no application to cases
where the donor's interest itself was separate ; '
and that even if it were the strict Mahomedan law

MAHOMEDAN LAW—GIFT— conirf.

3. VALIDITY— cowid

that where a man having a definite asGcrtainc
interest in a pension, and intending at any rate t
pass his interest to his wife, purp jrting to give he
more than he was entitled to, he failed to give he
any interest at all, s. 24 of the Bengal Civil Court
Act (VI of 1S71) did not make it obligatory to appl
the strict Mahomedan law as to gifts, in transaction
of modern times. Held, that although, accordin
to the Mahomedan law, possession was necessar
to perfect a gift where the nature of the transactio
was such that possession was possible, possessio
of a right to receive pension could only be given b
handing over the documents of the title connect*
with the pension or assigning the right to receiv
the pension ; that the gift in this case was perfe
as soon as the deed was executed and handed ovt
with the other papers to the donee ; and that tt
mutation of names was merely a thing which woul'
follow on the perfection of the title, and did not i
itself go to make or form part of the title. Sahi]
UN-NissA BiBi V. Hafiza Bibi. Hapiza Bibi
Sahib-ux-nissa Bibi . . I. L. R. 9 All. 21

28. Mahomedan lo

of gift — Possession not delivered at the time, h
afterwards obtained — Musha, mixed, or comnu
property, with shares undistinguished. A hibanaa
gave an undivided share in mokurari and zaminda
holdings, besides other property not reduced in'
possession, the whole of which had, as a matter
title, devolved upon the donor as a member ofi
family of which th.> donees were also members : He^
that the hibanama did not infringe the Mahomed'
doctrine of musha, as an attempt to make a gift of
undivided share in property capable of division :
having been settled that one of two sharers may git
his share to the other before division, whence ?
I followed that one of three shares might give 1*1
share to the other two. Ameena Bibi v. Zeifa Bi
■3 W. B. S/', referred to and approved. Held, al:
that, as the donor had done all that she could do
perfect the contemplated gift, which was attend)
with complete publicity, and as the donees hi
afterwards obtained possession, the fact of t;
donor's having been out of possession, and therefc
not having delivered it, did not of itself invalitii
the gift. In regard to the principle and the analo
in other systems of law to be found in the ca.
relating to voluntary transfers (where, if the dor
should not have done all that he could have dc
to perfect his intended gift, he cannot be com]:
led to do more), the Hindu case of Kali Das Mull
V. Kanhaya Lai Pundit, L. R. 111. A. 2 IS . /. L.
11 Calc. 121, referred to. Mahomed Bue
Khan v. Hosseini Bibi . I. L. R. 15 Calc. 6
L. R. 15 I. A.
29. Claim to pas-
sion of property under deed of sale — Consideral
— " Musha " — Effect of possession followiiuj u,
gift to render it valid. The law relating to >
invalidity of gifts of " musha," i.e., the prohibit
of the gift of an undivided part in property capa
of partition, ought to be confined within the strict

( 7933 )

DIGEST OF CASES.

( 7934 )

MAHOMEDAN LAW— GIFT— con(7.

3. VALIDITY— conid.

rules ; and the authorities on the Mahomedan law
Bhow that possession taken under a gift, even
although that gift might with reference to " musha "
be invalid without it, transfers effectively the pro-
perty given, according to the doctrines of both the
?hiah and the Sunni schools. Possession once
taken under a gift is not invalidate, as regards its
effect in supporting the gift, by any subsequent
change of possession. The subject of the gift was
shares in revenue-paying villages, with land, houses,
ind moveables. Of the greater portion of this pro-
)erty the donor, a mother giving them to her
laughter, had only so far possession that she was in
•pcelpt of the rents and profits. In the deed of
ift she declared (thereby making an admission
iereby her heir and all claiming through him were
)Ound) that she had made the donee, her daughter,
ossessor of all the properties ; and she directed
hat the gift should be carried into effect by the
laughter's husband, who was manager of estates
>n behalf of both mother and daughter before them :
hid, in a suit for the possession of the property,
n a sale by the heir of the donor, brought by the
endees against him, and joining as defendants the
eirs of the daughter then deceased, that sufficient
lossession had been taken on behalf of the daughter
0 render the gift effectual, and to defeat the claim
s against her heirs. Muhammad Muntaz Ahmad
ZuBAiDA Jan . . I. L. R. 11 AIL 460
L. R. 16 I. A. 195

30. ■ Muslm—Gijt of

a undivided share — Gift of future revenues of
illages. According to Mahomedan law, a gift can-
otbemadeof anything to be produced in future, I
Ithough the means of its production may be in the '
ossession of the donor. The subject of the gift I
lUst be actually in existence at the time of its i
Dnation. A Mahomedan executed a deed of gift j
1 favour of his wife, by which he agreed to give her \
id her heirs in perpetuity a sum of R4,000 per j
mum out of his undivided share in certain jaghir |
llages which he had inherited from his father :
dd, that the gift was invalid, as it was a gift in
Feet of a portion of the future revenues of the
llages to the extent of R4,000 per annum. Amttil |
ISSA Begam v. NuRUDiN HossEiN Khan I

^ I. L. R. 22 Bom. 489

31. Interest of donees unde-

led by gift — Receipt by donees of rent of land
'«n — Possession. A gift of land made by a Maho-
'dan is invalid if the interest of each of the donees
not defined by the gift. Semble : That the con-
|ined receipt by the donees of the rents of land,
lich had been let by them as the managers of the

r. is not a sufficient taking possession to satisfy
quiremcnts of the Mahomedan law. Vaximia
.:-.;a r. GuLAM Kadar Mohidin

6 Bom. A. C. 25

J2.

Gift in lieu of dower— 7m-

niteness. In a suit upon a hibanama alleged to
e been executed by the husband of the plaintiff,

MAHOMEDAN LAW— GIFT— con<d.

3. YALlBlTY^^ontd.

giving her twenty-two shares in a village as a gift in
lieu of dower, the Civil Judge dismissed the suit upon
the ground that the omission of the amount of the
dower rendered the instrument of no validity accord-
ing to Mahomedan law : Held (reversing the decree
of the Civil Judge), that the suit was maintainable,
the instrument expressing plainly the specific shares
of the property, and the gift was made in lieu of the
whole dower, and there being no room for doubt as
to the meaning and intention of the contracting
parties in regard to the particular subjects either of
the gift or of the consideration. Sahib a Begum ?'.
Atchamma 4 Mad. 115

33.

Gift without defining res-
pective shares of donees— .4(< VI of 1S71,

s. 24 — Law of justice, equity, and good conscience.
A deed of gift of his estate, executed by a person of
somewhat weak mind, in favour of two of his sons,
one an adult and the other a minor, without division
or detail of their respective shares, whereby a
younger son and several daughters were excluded
from inheritance, was set aside by the Court under
the general rule of Mahomedan law, that anything
which is capable of division, when given to two
persons, should be divided by the donor at the time
of the gift, or immediately subsequent thereto and
prior to the delivery to the donees, and the special
rule that a gift of undivided property is absolutely
invalid where one of the donees is a minor son ;
justice, equity, and good conscience not requiring,
under the circumstances of the case, that the deed
should be maintained. K devised a certain estate
to his son Z, but directed that the devise should only
take effect on his death in respect of a portion of the
property which was rent-free land, and that, with
regard to the remainder, his son A should hold pos-
session for the purpose of collecting and paying the
Government revenue due on both portions without
rendition of accoxmts, until such time as Z should
have a son competent to manage land paying
revenue. Z executed a deed of gift of his estate.
He never came into possession of the second portion
of the property : Held, with reference to the ques-
tion whether the donor had fulfilled the require-
ments of Mahomedan law by puttins; the donees
into immediate possession, that the deed, having
operated in respect of the first portion of the pro-
perty which Z had become possessed of under the
will, operated in respect of the second. Ntz a-m-fd -
DIN V. Zabeda Bibi . . . 6 N. W. 338

34. • Undefined gift — Gift hy

father to minor son. The rule that an undefined
gift of joint undivided propert\-, mixe 1 with pro-
perty capable of division, is invalid by Mahomedan
law, does not apply to a gift by a father to a minor
son Wajeed Ali v. Abdool Ali

W. R. 1864, 121

35. Gift of defined shares in

land — Separate property. A defined share in a
landed estate is a separate property, to the gift of
which the objection which attaches under Maho-

( 7935 )

DIGKST OF CASES.

{ 7936 )

MAHOMEDAN IjAW— GIFT— contd.

3. VALWiTY—contd.

medan law to the a;ift of joint and undivided pro -
pertv is inapplicable. Jiwan Bakhsh v. Imtiaz
Begam . . . . I. L. K. 2 All. 93

36. Grift of defined shares of

property — Possession — Hanifia Code — Imamia
Code. A Mahomedan bequeathed his property to
his two nephews, Gulam Rasul and Gulam Ali, as
joint tenants. Gulam Ali died, leaving a widow
and a daughter, who continued to be joint tenants
with Gulam Rasul ; but the latter continued in
exclusive possession of the property, subject to any
claim which they might establish to a share in, or a
charge upon, it. Gulam Rasiil, by a written
instrument, made a gift of that property to his
younger son, the father of the defendants, dis-
inheriting his elder son, the plaintifiF : Held, that
the gift was valid, and that the doctrine of the
Hanifia, though not of the Imamia Code, that the
gift of a share in undivided property, which admits
of partition, is certainly invalid , or at least forbidden
has no application to the gift of property so cir-
cumstanced. GoLAM Jafar v. Masludin

I. L.'R. 5 Bom. 238

37.

Reservation of

income — Condition against alienation — Undivided
property — Indivisible property. B owned a one- :
twelfth share of a muafi estate and a dwelling- ;
house. As owner of the dwelling-house, she \
owned a share in a staircase, privy, and door, which
were held by her jointly with the owners of adjoin-
ing dwelling-houses. She made a gift of her pro- 1
perty, transferring the dominion over it to the j
donees, but reserving the income of the share of the j
muafi estate for life, and stipulating against its }
alienation : Held, that the gift of the one-twelfth
share of the muafi estate, being a gift of a specific j
share, was not open to objection under Mahomedan 1
law, and such gift was not vitiated by the mere
reservation of the income of the share, or by the
condition against alienation. Held, also, that the
gift was not invalid under Mahomedan law, so far
as it related to the staircase, privy, and door, as
those things, though undivided property, were
incapable of division, and a gift of part of
an indivisible thing was valid under that law.
Kasim Hussein v. Shaeif-ttn-nissa

I. L. R. 5 AIL 285

MAHOMEDAN LAW— GIFT— con^d.

3. VAhimTY ^:ontd.
SAIN Khan v. Nateri Srinivasa Charlu. Jaghii

DAR OP VlKUTHALABATHI V. NaTERI SrINIVA a

Charlxt 6 Mad. 35

39. Gift coupled with cond

tion — Absolute gift. A testatrix was entitled t
Government notes under a gift coupled with t\
condition that she was to receive only the interei
during her life, and that after her death the noti
were to be held in trust for all her heirs. Quaere
Whether, under the Mahomedan law, the gift ma(
to the testatrix was not a gift to her absolutely, tl|
condition being void. Sctleman Kadr v. DorA
Ali Khan . . . I. L. R. 8 Cale. i

L. R. 8 I. A. 11

40. Possession, necessity oJ

Donor out of possession. To malce a deed of gi
valid under the provisions of the Mahomedan la^
seisin is necessary ; if the donor is not in possessi(
at the time, the gift is void. Abedoonissa Khj
TOON V. Ameeroonissa Khatoon . 9 W. R. 2f

41. Possession giu

and accepted. Under the law of the Sherra, gifts a
not valid until possession is given by the donor a}
taken by the donee. Obedttr Reza v. Mahom:«
MuNEER 16 W. R. J|r

42. Hibba. Poss^

sion is under the Mahomedan law absolutely necp
sary to establish the validity of a hibba. Shahj|i
BiBEE V. Shib Chttnder Shaha . 22 W. R. 3k

38.

Gift with restriction as to

alienation — Absolute gift. Plaintiff, during his
son's minority, gave certain property to him, and
on the delivery of possession got from him a docu-
ment stipulating (i) that he would not alienate ;
(ii) that at his death the property should return to
the father. This document was deposited with the
father, and not heard of until the property was
taken in execution for the son's debts, many years
after the gift: — Held, that by Mahomedan law, as
well as by the general principles of law, such a
restriction on alienation, especially after the gift
had become complete long before, is absolutely
invalid. Amirubdatjla Muhamad Kakya Htts-

43.

ContingerU

postponed gift — Possession not immediate. Umr
the Mahomedan law, a gift cannot depend upoa
contingency or be postponed, but possession mjt
be immediate. Roshun Jahan v. Enaet Hoss*

5 W. B4

44.

Donor remcv

ing in possession. According to Mahomedan 1 .
a gift is invalid when the donor is to remain in ] •
session during his lifetime. Zohooroodeen (• -
DAR V. Baharoollah Sircar W. R. 1864, ]15

45.

Donor remk-

ing in possession — Deed of gift — Co7isideram'
The policy of the Mahomedan law is to preveila
testator interfering by will with the course ofpe
devolution of property according to law amondua
heirs. But a holder of property may defeatpe
policy of the law by giving in his lifetime the wUe,
or any part, of his property to one of his heirs, \o-
vided he complies with certain forms. Thia W
be done by a deed of gift without consideratioi o'
by deed of gift for consideration. A convey[<»
by deed of gift without consideration is invM*
unless accompanied by delivery of the thing gipDf
so far as it admits of delivery. In the case of s0
for consideration, the delivery of possession isfOb
necessary for its validity, and no question aris|a8
to the adequacy of the consideration ; but ftw
must be an actual payment of the consideratiojby
the donee, and a bond fide intention on the paj oi
the donor to divest himself in prcesenti of the|ro.~

( 7937 )

DIGEST OF CASES.

( 7938 )

iAHOMEDAN LAW— GIFT— cw^ri.

3. VALIDITY— roft/(7.

tTty, and to confer it on the donee. It is incura-
ent on those who set up transactions of this
ature to show very clearly that the forms of the
:ahomedan law, whereby its policy is defeated,
ive been strictly complied with. Khajooroo-

[SSA V. ROUSHAX .JkHAX

I. L. R. 2 Calc. 184 : 26 W. R. 36
L. R. 3 I. A. 912

rirming the d- cision of the High Court in Roshux
iHAX V. EXAET HOSSEIN . . 5 W. R. 4

46.

Gift in futitro. I

idcr the Mahomedan law, a gift is not valid unless
is accoinpanied by possession, nor can it be Tnade
take etfect at any future definite period. A
(.ument containing the \Aords, " I have executed
ikrar to this effect, that, so long as I live, I shall
joy and possess the properties, and that I shall
t .sell or make gift to any one ; but, after my
ith, you will be the owner, and also have a right
sell or to make a gift after my death : ' ' — Held,
bean ordinary gift of property " m futuro/^ and
. such invalid under Mahomedan law. Ytjsuf
r r. Collector of Tipperah

I. li. R. 9 Calc. 138

7. Delivery — Donee

i ihysical possession prior to gift — Formal delivery,
ly, or departure — Manifest intention of donor
U ansfer. I'^or the purposes of completing a gift of
i, loveable property by delivery and possession,
D formal entry or actual physical departure is
D issary ; it is sufficient if the donor and donee are j
Piont on the premises, and an intention on the !
p of the donor to transfer has been unequivo- i
ci:; manifested. Ibhram v. Sulemvn j

I. L. R. 9 Bom. 146 I

'• Gift made on '•

i>S-hed — Delivery of possession. Where pro- I
P V. the subject-matter of a gift made by a Maho- j
"' •" d^iring his death illness (marz-ul-maut), was |
iiid of the donee as manager or agent of the [
I was held that the possession of the donee
iiianager or agent was not such possession as
■ nder it necessary to the validity of the gift |
• le should have been an actual or formal
V to him of possession of the propertv. Va- ''
' lIossEix V. Manikan . 5 C. ii. R. 91

— Change of pos-

''onxideration. On an issue whether an
of an estate consisting of certain talukhs
izahs had been made by a Mahomedan pro-
n favour of his wife:— T/eW. that the pos-
' the estate, M'hich was the subject of gift,
"■en changed in conformity with the gift,
iige of possession would have been sutfi-
J^upport it, even without consideration :
the evidence, that the gift was effectively
:vamar-ux-xissa Bibi v. Httsaixi Bibi
I. L. R. 3 All. 266
Seisin — Sur-

MAHOMEDAN" LAW— GIFT— confef.

3. VALIDITY— <-o?i<(?.

and a half undivided shares in a village, which she
mortgaged in 184(), upon the terms that the mort-
gagee should be put into possession and that he
should credit the produce of two shares on account
of the moitgage-debt, and should pay the mortgagor
one share and a half for her maintenance. Subse-
quently, in 1853, she made an absolute gift in w riting
of three of the shares to the fourth defendant and
his mother. The produce of the shares was applied
during the lifetime of the donor after the gift just
as it had been before the gift : — Held, that there was
no such surrender and deliveiy of the property to
the donee as is requisite to make a valid irift accord-
ing to Mahomedan law. Khader Hussaix v.
HussAix Begum . . .5 Mad, 114
51. — Absence of relin-

"d delivery to donee. The plaintiff's de-
ister in her lifetime was theowner of three
OL. III.

guiskment by donor or seisi7i by donee. A deed by a
Mahomedan, in which he declared, " I have adopted
A B to succeed to my property," was held to be
neither a deed of gift nor a testamentary gift to take
effect after the death of the donor, there being a
complete absence of any relinquishment by the
donor or of seisin by the donee. Jeswuxt Srx-
GHJEE Ubby Sixgjee v. Jet Sixghee L'bbv
SiXGJEE . . . . 6 W. R. P. C. 46

3 Moo. I. A. 245

52. "TflwZ;/.-," or

assignment of ownership. "Tamlik,"or assign-
ment of ownership, is a term of general import ap-
plying to the various modes of acquisition of pro-
perty recognized by Mahomedan law, but forms no
separate and distinct mode of acquiring propsrty.
When applied to gift, it does not avoid the legal
requirements of acceptance and seisin. An instru-
ment called a " tamliknama " purported to give S,
in consideration of her devotion and affection
to the executant, the executant's property, and
provided that the executant should during her life
enjoy the income from the property : that at her
death S should have the proprietary possession and
enjoyment of the property, just like the executant ;
that the executant should effect mutation of names
in respect of the property in .S"s favour ; that the
property should not belong to any other person but
S ; and that any transfer by the executant to any
other person should be void. After giving <S the
po^^er to transfer the property by sale, mortgage,
gift, "tamlik," etc., it proceeded in manner fol-
lowing : " But S, or her transferee, shall get
possession of the said share only after my death.
On mj' death S and her heirs shall become the
owners of this share." The deed could only have
validitv as a will ; as a deed of gift, it was wholly
invalid". Kasum v. Shaista Bibi 7 N, W. 313

53, Seisin and ac'

ceptance of possession — Residence and receipt of
rent by donor. A Mahomedan husband executed a
" hibba," or deed of gift, without consideration, in
favour of his wife, comprising a house in which they
were residing at the time, w ith its furniture, and two
other houses. He at the same time delivered the
hibba and the keys of the houses to his wife, and

11 XJ

( 7939 )

DIGEST Oi*- CASES.

( 7940 )

MAHOMEDAW LAW— GIFT— comW.

3. VALIDITY— coji<cZ.
quitted the house of residence, leaving her in pos-
session of the same : — Held, that the requirements of
the Mahomed an law, with regard to gifts without
consideration, — viz., acceptance and seisin on the
part of the donee, and relinquishment on the part
of the donor, — had been complied with, though the
husband shortly afterwards returned to the house,
resided there "with his wife till his death, and
received the rents of other parts of the property-
comprised in the hibba. The continued occupation
or residence and receipt of rents were in such
circumstances to be referred to the character which
the donor bears to husband, and to the rights and
duties connected with that character. Amina
BiBi V. Khatija Bibi . . .1 Bom. 157

54. Gift by hiisband

to wife — Delivery of possession — Gift, validity of,
as ''aqainst creditor, or stibsequent bond fide pur-
chasers. The plaintiff, the nika wife of the late
Nawab of the Carnatic, sued for a declaration of
her absolute title to certain premises (Nos. 1, 2, 3,
and 4), for possession of certain other premises
(Nos. 5 and 6), for delivery to her by defendant of
the title-deeds of all the premises except No. 1, and
for cancellation and delivery up of a sheriff 's bill of
sale of No. 1 in favour oi T A, oi a, mortgage of
Nos. 2, 5, and 6 to B <& Co., of a mortgage of No. 4 to
A A, and of all assignments hy T A R <fr Co., or
A A, to defendant. She claimed this relief under an
alleged gift to her by the late Nawab on or about
the 6th January 1851. Defendant said (and it
was so found) as to 2, 5, and 6, that he'had never
had anything to do vrith the said premises or with
the title-deeds thereof. As to the other premises,
that the several assignments in his possession were
made to him as receiver of the Carnatic property
under Act XXX of 1858, but that he had not
obtained possession of the said premises nor of any
of the title-deeds thereof, except the sheriff 's bill of
sale of the 29th November 1855. Issues were
settled raising the following questions : Whether
the gift was made as alleged ? Whether, if so, it
was valid against creditors of, or subsequent pur-
chasers for valuable consideration from, the donor ?
Whether the gift was revocable, and revoked ?
Whether defendant has, or ever had, possession
of all or any of the title-deeds of Nos. 2, 5, and
6 ? Held, that a complete gift had been made and
not revoked ; that it was valid against the creditors
of tlie donor, and also (as the donor and donee were
both Mahomedans) against subsequent purchasers
for valuable consideration from the donor ; '"but that
defendant had never had possession of the title-
deeds of Nos. 2, 5 and 6, so that the suit could not
be maintained as regards them. Under Mahomedan
law, " in the instance of a \viie who may give a
house to her husband, the gift will be good, although
she continue to occupy it along with her husband
and keep all her property therein, because the wife
and her property are both in the legal possession of
the husband. So also it has been held by some
that, if a father transfer his house to his minor son,
himself continuing to occupy it and to keep his pro-

MAHOMEDAN" LAW— GIFT— cot»<d.

3. VALIDITY— contd.
perty therein, the gift is valid, on the principle a
the father in retaining possession is acting as 8)d
for his son, according to which doctrine his pcet
sion is equivalent to that of his son." Roo
requires that the same principle should be apie
to the case of a gift by husband to wife. Thenl
may, according to Mahomedan law, hold pro rt
independent of her husband, and as a husbandia
make a valid gift to his wife, it can only be r:ei
sary that the gift should be accompanied with ic
a change of possession as the subject is capaV o
and as is consistent with the continuance c tt
relation of husband and wife. Azimitkss
Begum v. Dale ... 6 Madifi

55. Gifthyfcir

infant child. Held, that it is not necessary i tl
Mahomedan law that possession should foil/ 1
complete a gift by a father to his infant iil(
Gyasooddeen Hyder v. Fatima Begum

1 Agr2J

56. Giftbyfoer

minor son. According to Mahomedan law, i fo
mal delivery and seisin are necessary to the v .dil
of a gift of property by a father to a mine so
Where a son has divested himself in favour f h
father of all interest in property which haibe(
given to him by his parents, before any lega ffe-
can be given to such a transfer, the clearest jjof
necessary of good faith and joint dealing bwe(
the parties, and also that the father's influerj w
not unduly exercised for his own advitag
Wajeed Ali v. Abdool Ali . W. K. 18t, 1!

57.

Ahsice

change of possession — Gift by father to sor G
by father to son held not valid as being follo-'d 1
no real change in the nature of the enjoy^nt
the property, and merely nominal. ]\N>'(
BiBEE V. Jehaxdar Khan . . 1 Agi 31

58.

Gift hy

— Gift of undivided share — Delivery of pr
A Mahomedan made a gift in WTiting to his <1
on her marriage of an undivided moiety of I
in certain buildings, which were the pr^
donor's wife. On the death of the d'
husband married her sister, and the donor t
similarly made a gift to her of the remain:
vided moiety. The donees were minor
dates of their respective gifts. The husl
sued to recover the share of his first wife,
delivery had not been made : — He'd, thai
was not invalid, either for indefinitenet| v/i'
want of delivery of possession. Hussain Mn
I. L. R. 13 M.

Oroun

cellation of deed of gift — Want of dmfy
possession to donee. Held, in the case (i-^ d<
of gift between Mahomedans, that it was njizrou
for cancellation of the deed that possessii of 1
property, the subject of the deed, not hajig ^
made over to the donee, the deed might btacco

( 7941 )

DIGEST OF CASES.

( 7942 )

AHOMEDAN LAW— GIFT— cojj^/.
3. VALIDITY -con«(?.

(■ to the Mahomedan law, inoperative. Umrao
iBi V. Jan Ali Shah . I. L. K. 20 All. 465
'30. Want of poises

'rt Essentials for valid gift. Delivery and

viin are, under the Mahomedan law, the essence
1 1 gift, and therefore no right of any description
•ses without them. A donor therefore must be
j' possession. Mohin-ui-din v. Manchershah,
!l. R. '> Bom. ^i'<0, referred to and followed,
.^ordingly where the plaintiffs claimed to recover
J session under a deed of gift alleged to have been
Vsed to them by a Mahomedan donor for the use of
*asjid, but it appeared that neither the donor nor
vionees were ever in possession before or after the
^ —Held, that the gift was invalid, the language
itfiie texts of Mahomedan law distinctly laying
d 11 that in a gift seisin is necessary and absolutely
iilspensable to the establishment of a proprietary
r t. Kali Das 'Mullick v. Kanhya Lai Pandit,
JL R. 11 Calc. 121, distinguished. Meherali v.
1 UDm . . . I. L. R. 13 Bom. 156

Gift of life-

4(|'e — Want of fossession in donee. A grant of

ft,e-estate is invalid under the Mahomedan law.

T grantee in such a case would take an absolute

ttjte. A Mahomedan executed a deed by which he

Kjed his property in wukf on his two wives and

di,;hters and their descendants in perpetuity. For

ti^nanagement and devolution of this property he

U do\Tn the following rules : (i) that if one of the

•111 (or daughters) of either ^vife died, the share of

.. •...T.jon should go to the 'wife and the survivors

id ; that after the death of a wife her share

■ to her surviving aulad ; that if a wife and

I ceased to exist, their share should go to

wife and her 'aulad ; that on the failure

and aflad of both wives, the next of kin

' ttlor should receive the property; and

: that in this'' way the management should

wm generation to generation; (i ) that

f the said two wives nor any one of the

Uio wives should alienate by sale, gift or

• •ither their shares or any part of the pro-

-Held, that the settlement was invalid as a

-"ift to the settlor's next of kin after the de-

i'ln of the life-estates granted to his wives

-htors ; first, because the donor had not

;;h possession of the property till his death,

v/Zv, because the grant of a life-estato is

insistent with the Mahomedan law, the

ii such a case taking an absolute estate.

' ■ UN GuLAM V. Abdul Gafur

I. L. R. 13 Bom. 264

Hiba-bil-iwuz

m consideration of services rendered —
' in possession — Possession not delivered

The fundamental conception of hiba-bil-
' ^ift for an exchange as understood in the
' in law, is that it is a transaction made up
I'lrate acts of donation, i.e., of mutual or

-;ifts of specific property between two per-
;ufwhomis alternately donor and donee.

MAHOMEDAN LAW— GIFT-^on<d|

3. VALIDITY— <on<t/.

It does not include the case of a gift in consideration
only of natural love and affection or of services or
favours rendered. Nor does such a gift fall under
the category of hiba-bil-iwaz in its improper sense of
sale ; but it is an ordinary gift subject to all the
conditions as to validity which the Mahomedan law
provides. A gift of immoveable property not at
any time in the possession of the donor, but in that
of a tresjiasser, and consequently never delivered
by the donor to the donee, is void under the Maho-
medan law. Kasim Hossein v. SJuirif-un-nissa,
I. L. R. /T All. 28') ; Sahib-un-nissa Bibi v. Hafiza
Bihi, I. L. R. 9 All. 213 ; and Shaikh Ibhram v.
Shaikh Suleman, I. L. R. 9 Bom. 14^, distinguished.
Mohin-iid-din v. Manchershah, I. L. R. H Bom. 'i'l" ;
Mullick Abdool Guff oar v. Muleka, I. L. R. 10 Calc.
1112 ; and Hazara Begum v. Hossein Ali Khan, 12
W. R. 49 s, referred to. Rahim Bakhsh v. Mttham-
mad Hasan . . . . I. L. R. 11 AIL 1

63. Possession —

Gift of property attached by Collector for arrears of
revenue— N.-W. P. Land Revenue Act {XIX of 1S73),
s. 114. Held, that it was possible to make a gift
which should be valid under the Mahomedan law of
property which had been attached by the Collector
for aiTcars of revenue under s. 15-t of Act No. XIX
of 1S73. All that was necessary to a valid gift was
that the donor should transfer possession of such
interest as he had at the time of the gift : it was
not necessary that he should transfer possession of
the corpus of the property. Mtdlick Abdool
Guffoorv. Muleka, I. L. R. 10 Cede. 1112 ; Maliomel
Buksh Khan v. Husseini Bibi, I. L. R. li Calc.
'>''^4 ; Rahim Bakhsh v. Muhammad Hasan, I. L. R.
11 All. 1 ; and Mohimulin v. Manchershah, 7. L. R.
0 Bom. 6 0, referred to. Anwaiu Begum v. Xizam-
UD-DiN Shah . . I. L. R. 21 AH. 165

64. . Incomplete gift

— Absence of relinquishment by donor. Where a
Mahomedan woman made an oral gift of a house to
her nephew on the occasion of his marriage, but
subsequent to the gift continued to live with him in
the house : — HeM, that the gift was null and void,
as there was no entire relinquishment of the house by
the donor, and the case did not fall within the
exceptions allowed by Mahomedan law. Bava
Saib v. Mahomed . . I. L. R. 19 Mad. 343

65. Validity of gift

— Possession — " Mu^-ha.'" A deed, whirh was
found in oifect to bo a deed of gift comprising
zamindari and other property, was executed on the
22nd of May 1800. It was rogistei-od on tho 24th
of May, and the donor died on tho 26th. Tho deed
recited : " I have placed the aforesaid donees in
proprietary possession of the aforesaid property as
my representatives." Mutation of names was
subsequently obtained by one of tho donees in his
favour on the basis of tho same deed : — Held, that
this was a valid and effectual gift under the Maho-
medan law. Mahomed Buksh Khan v. Hosscini
Bibi, I. L. R. 15 Calc. 0S4 : L. R. 15 I. A. SI, and
Muhammad Mumtaz Ahmad v. Ziibaida Jan, I. L. R.

11 u 2

( 7943

DIGEST OF CASES.

( 7944 )

MAHOMEDAN IjAW—GlFT—confd.

3. V AIJDITY— co7Ud.

11 All. 460 : L. R. 16 T. A. 20.5. referred to. Saj-
JAD Ahmad Khan v. Kadrt Bkoam

I. L. R. 18 All. 1

66.

Alleged gift by

a Mahomerlan father to his son — Be.nami transac-
tion— Evidence of transfer of ownership. Govern-
ment securities were indor.sed and delivered bj' a
]\Iahomedan father to his son in the presence of the
local Treasury Oflficer. On the question, raised
after the father's death, whether this was intended
to transfer the o^^Tiership, or was a benami trans-
action, leaving the true ownership in the father,
the Courts below had drawn different inferences
from the proved facts. Tlie first Court decided
that the ownership had been changed, the notes
having been given with only a reservation of the
temporary use of the intci'est. The High Court
found that the ownership remained in the father.
On a review of the possession of the parties at the
time, and of their subsequent conduct down to the
father's death, the Judicial Committee affirmed
the judgment of the High Court on the evidence,
pointing out that the first Court's theory of the
reservation differed from the case alleged by the
defendant and from that actually made out by the
plaintiff at the hearing. Ibrahim Alt Khan v.
Ummat-xjl-Zohra . ' . I. L. R. 19 All. 267
L. R. 24 I. A. 1

67. Gift not perfect-
ed hy possession — Necessity of delivery of posses-
sion— Registration. Under the Mahomedan law, a
registered deed of gift is not valid if it is never
perfected by possession. The Mahomedan law re-
quires that the donor . should be in actual or at
least constructive possession, and that he should
give actual or at least constructive possession to the
donee. Registration is not equivalent to posses-
sion. ISMAL V. RaMJI SaMBHAJI

I. li. E. 23 Bom. 682

68. ■ Hiba-hil-iwaz —

Settlement in lien of dotcer — Possesion not trans-
ferred— Validity on passing of consideration. A
Mahomedan executed a deed of settlement of
certain land in lieu of dower on his wife, who
left him shortly thereafter without ever acquir-
ing possession. On his contending that the settle-
ment was invalid : — Held, that a bond fide trans-
action by way of ' hiba-bil-iwaz ' (as this was
found to be) is supported by proof of the actual
passing of the consideration agreed to be given ;
that the consideration in this case was the release
by the wife of her right to dower from her husband,
and that such release was completed by her accept-
ance of the transfer under the settlement. Mtt-
hammad Estjph Ravutan v. Pattamsa Ammal

I. L. R. 23 Mad. 70

MAHOMEDAN 1j AW— GIFT— ronfd.

3. VALIDITY— €okW.

the Land Acquisition Act, two persons claimi
share in compensation to be paid in respect ci
alleging that the property in question had t
assigned to them by a registered deed of gift, n
that it had devolved upon their assignor as a sh.is
under the Mahomedan law, in the estate c
deceased relative. The deed of gift recited theu
that the assignor had become entitled to 14 o (
24 shares in the said estate, and authorised.t
claimants to collect the assignor's shares )i
tenants and others who were in possession o:b
properties, by means of suits or mediation, n
directed the claimants to take as a gift to ei
mosque one-third of the net balance so colkec
The claim was disallowed by the Court ci rs
instance, on the ground that the gift was in ill
under Mahomedan law, because the claimant a
donees, had not been put into possession oth
property, and also because the gift was of aiur
defined share, and therefore invalid, accordi t
Mahomedan law, by reason of " mii-iha'" oioi
fusion. Held, that, even if the doctrine of " mvu
was in force in the Presidency of Madrafth
claimants were entitled to be paid the couer
sation claimed. Qucere : Whether the doctre c
" musha " is in force in the Presidency of Jkl^rai
Per Benson, J. — The validity of the gifwa
not " a question regarding succession, inherinct
marriage or caste, or any religious usa o
institution," as referred to in the MadrasiiliT
Courts Act, 1873, and therefore the nii c
Mahomedan law with regard to gifts wer i
necessarily the rules by ■^^-hich the question
be decided. The Mahomedan law, as :
by our Courts, does not require imu .
possession to be given in all cases, and ima;
be doubted whether even the restricted i« a
to possession is any longer adapted to rden
requirements, and ^^•hether the mode of a '-•ana
fer laid do\^-n as obligatory on Europear am
Hindus by s. 123 of the Transfer of Pi
Act, and adopted by the parties in thi
(namely, by registered instrument attest
two witnesses and signed by the donor), oui
in equity and good conscience to be held t^
efficacious as delivery of possession in th(
Mahomedans. Mahomed Buksh Khan v. 1
Bibi, L. R. 15 I. A. 81. referred to. Alafi
V. Mu-ssa Koya (1901) . I. li. R. 24 Mi

70. Gift—:

of possession — Costs. On the 5th day of Jul
J, a Mahomedan lady, executed a gift of m

of donor's interest in property — Donees not put into
possession — Validity of gift — Doctrine of " nmsha,"'
or confusion — Madras CivH Courts Act (III of 1S73),
s. 16. Certain property having been taken up under

and immoveable properties, including the
which she resided, in favour of A, B, C, D
widow and minor children, respectively,
deceased son M. After the execution of t
of gift, A took exclusive possession of the 1 _
Gift of one-third I her owti and on her children's behalf. Oni'*- "i'
day of July, 1901, J returned to the housf^nd »!
her instance, the tenants, who resided on al'Ttioi
of the property transferred, attomedito J
During the absence of J from July 5th ' J^^v

( 7945 )

DIGEST OF CASES.

(• 7946 )

AHOMEDAN" LAW— GIFT— (•o«^/.

3. VALIDITY— conW.

h, 1901, certain furniture and other moveable

operty belonging to her, remained in the house,

10 subject of the gift. On the 18th October 1903,

died intestate. Upon S, the sole surviving

ughtcr of J, filing a suit claiming that the alleged

't was invalid under Mahomedan \a,\v : —Held,

it the execution of a deed of gift of immoveable

iperty accompanietl by a temporary abandonment

possession by the donor in favour of the transferee

1 the attornment of tenants to the transferee, is a

ficient delivery of seisin to make the gift valid

(ler the Mahomedan law. The fact that during

> abandonment of possession, a portion of the

-I's moveable property remains on the premises,

it the donor, after a temporary absence,

, 's to reside in the same, does not render the

,1 of possession inoperative. Shaikh Ibhram

>i''uhh Sullrruin, T. L. R. 9 Bom. 146, followed.

n 1 ■; within the discretion of the lower Court to

^l^arate costs to the 1st defendant and her

hildivn. But only one set of costs was

! ill the appeal. Khaver Sultan v. Rukhia

\N (1905) . . I. L. R. 29 Bom. 468

MAHOMEDAN LAW— GIFT— con/^f.

3. VALIDITY— co«fci.

72.

Transfer of pos-

Gilt—3Iode of

!fls

iilier tcith or icithont consideration
if ion — Deli very of possession —

li.l. n,U

'!• ri«nyttion by donor of possession and

I't of property to himself and wife for their

l'>y tiie Methomedan law a holder of property

1 his life-time give away the whole or part of

i.i()ioperty, if he complies with certain forms ; but

ill incumbent upon those who seek to set up such a

' -I'tion, to show very clearly that those forms

i:ii complied with. It may be by deed of

1 l)ly, or by deed of gift coupled with con-

: 111. If the former, unless accompanied by

. of the thing given, so far as it is capable of

> . it is invalid. If the latter (in which case

'I ■1 y of possession is not necessary) actual pay-

n t of the consideration must be proved, and the

^ fide intention of the donor to divest himself

tfrmenti of the property and to confer it upon

ti/lonee must also be proved. Ranee Khujooroa-

*•' V. Mussamnt Raushun Jehan, L. R. 3 I. A.

^{ I. L. R. 2 Cnlc. 1S4, followed. In a suit

»t|-t a.side a deed of gift executed by the plaintiff

fc'ivour of the defendant, both being Muham-

*>|ins, the Judicial Committee held that the deed,

Fih purported to be a conveyance for value,

•Ji transaction in which no consideration passed

*! as intended to pass ; that in executing the

W, thp plaintiff did not intend to give the property

Ke defendant except subject to a reservation of

WjPossession and enjoyment to himself and his

Ej during their lives, to which the defendant
|!«l himself ; and that the deed was not followed
^I'livery of possession, but was a fictitious and
nt deed and was invalid and void. Chaudhri
jl'MM Hasan v. Muhammad Hasan (190.5)
!!«*■ I. L. R. 28 All. 439

»■ s.c. 10 C. W. N. 706

L. R. 33 I. A. 68

sessio7i — Donor and donee living in the same house
the subject of the qift — Evidence. It is not necessary
according to Mahomedan law that in all cases
where a gift of immoveable property is made, the
donor should actually and physically vacate the
property the subject of the gift. \\'here the gift
was of a house and other immoveable property, and
was made by registered instrument and attended
by circumstances of great publicity, the fact that
the donor, who was the aunt of the donee, never
quitted the house, but continued to reside in it
with her nephew, was held to be of no effect in the
face of the clearly manifested intention of the
donor to transfer possession of the house to the
donee. Shaik Ibrahim v. Shaikh Suleman, I. L. R.
9 Bom. 146, followed. Humera Eibt r. Najm-
UN-NissA (1905) . . I. L. R. 28 All. 147
73. Nature of pos-
session necessary to constitute a valid gift — Residence
of donor — Mother with daughter — Donee does not
make gift invalid. Under Mahomedan law, to
constitute a valid gift, possession must pass to the
donee. Where a house and lands were given as a
gift by a Mahomedan mother to her daughter, and
the daughter was put in exclusive possession of the
lands and her title to both properties was perfected
by limitation of names in the register, the mere
fact that the mother continued to reside with her
j daughter, will not constitute a non-delivery of pos-
session which will invalidate the gift. Bava Sahib
V. Mahomed, I. L. R. 19 Mad. 343, distinguished.
Humira Bibi v. Najm-un-Nissa P.ihi, I. L. R. 23
All. 147, followed. Kandath Veettil Bava r.
MusALiAM Veettil Pakrukutti (1907)

I. L. R. 30 Mad. 305

74.

Gift by regis-

tered instrument not valid if vnaccompanied by
delivery of possession. The ^Mahomedan law is
applicable to gifts between Mahomedans, even when
effected by re'j;istered instrument, atjd such a gift
will be invalid unless the requirements of Maho-
medan law as to possession are complied with.
Clmudhri Mehli Hasan v. Muhamnmd Hu^mn,
L. R. 33 I. A. 6S, 75, followed. Moguhha v.
Mahamad Sahib, I. L. R. 11 Bom. ■517, referred to.
Alabi Koya v. Mussa Koya. I. L. R. 2t Mad. -'13,
not followed. Vahazullau Sahib v. HoYArvTi
Nagayya (1907) . 1. L. R. 30 Mad. 519

75.

Gift— Validity

of deed of giftr—Marz-ul-mmd — Death illness, what
constitutes — Apprehension of death — Concurrent iudg-
ments on fact — Privy Council, practice of. The
question in this case was whether a deed of gift was
invalid by reason of the Mahomedan law of murz-nl-
nuiut, relating to gifts made in death illness : — Held,
that whether the donor was or was not under ap-
prehension of death at the time the deed was execu-
ted it was rightly treated by the Courts below as the
decisive test. That was a qucsticm essentially of
fact and of the weight and credibilitj^ of evidence :

( 7947 •)

DIGEST OF CASES.

( 7948 )

MAHOMEDAN LAW— GIFT— cowfrf.

3. VALIDITY— concW.

and there being concurrent judgments on the evi-
dence that there was no such apprehension, the
Judicial Committee declined to interfere, particu-
larly as it appeared that the reasons given by the
Courts established a large preponderance of pro-
bability in favour of the conclusion at which they
had both arrived. Fatima Bibi v. Aiimkd Baksh
(1907) . . . I. Ij. R. 35 Calc. 271

s.e. L. R. 35 I. A. 67
12 C. W. N. 214

7e.

Gift — Mitsliaa

gifts of undivided shares in Companies and shares
in freehold property in Rangoon — Whether law of
rmisliaa applicahle to Mahomedans residing in
Rangoon — Death-bed gifts — Gifts made not under
sense of imminence of death. In suits brought to
set aside certain deeds of gift executed shortly
before his death by a Mahomedan in Rangoon in
favour of his widows and minor children, as being
invalid because they were death-bed gifts, and
because they were contrary to the law of mushaa
(prohibiting gifts of undi^nded shares in property
which is divisible) : — Held, in accordance with the
principles laid down in lluhammad Mumiaz
Ahmad v. Zubaida Jan, I. L. R. 11 All. 460 ; L. R.
16 I. A. 205, that assuming the law of mushaa to
apply to the succession of Mahomedans residing in
Rangoon that doctrine was not applicable to shares
in Companies nor to shares in free-hold property in a
large commercial town. Held, also, on the facts
upholding the concurrent decisions of the Courts
below, that the deeds of gift were not executed
under pressure of the sense of the imminence of
death and were therefore valid. Ibrahim Goolam
Aeiff v. Saiboo (1907) . I. L. B. 35 Cale. 1
s.c. Ii. B. 84 I. A. 167

77. ^_ Gift—Hiba bil

mushaa — Possession. Held, that what is known to
Muhammadan law as a hiia bil mushna, or gift of
an undivided joint property, is a valid gift, if the
donee obtains possession, llumtaz Ahmad v.
Zubaida Jan, J. L. R. 11 All. 460, referred to.
MoHiBrLLAH r. Abdxtl Khalik (1908)

I. Ii. B. 30 All. 250

4. REVOCATION.
- Power of revocation — Ir-

revocable gift — Delivery of possession. In a suit
for arrears of rent due on defendant's patni talukh
though the rate was admitted, it was pleaded that,
in consequence of a dacoity having taken place in
the defendant's house, she had been allowed by'the
plaintiff (her brother-in-law) a remission of rent an-
nually for a certain number of years, and defendant
professed her readiness to pay if the remission were
allowed. Plaintiff's agreement set forth that, in
consequence of defendant's house having been
plundered, she was entitled to assistance to enable
her to replace what he had lost, and that the rajah
(zamindar), not being able to piake good the amount

MAHOMEDAN LAW— GIFT— condd

4. REVOCATION— coTicZcZ.

at once, took this method of assisting his i
nexion : — Held, that the gift (or remission of rert
the years in suit) was complete at the terra
tion of each year ; in other words, deliveryu
been made to the donee, and it could no
recalled under the Mahomedan laM', whi(
precise as to the impossibility of revoking ar
after delivery without the decree of a Jud;
the consent of the donee. Ekaet Hosse
Khoobtjnnissa . . . 11 W. B.S

2. Power of revoking gt

Revocable gifts. Certain lands, choultries, ii
moveable property had been, by instnim"
writing, given to the brother of the donor a \
heirs for the purpose, in perpetuity, of keepz
repair the choultries and affording strangei t]
charities of shelter, and, if circumstances pernte
food also, as well as for supplying the wants t]
donees, with clauses restraining alienation by en
— Held, that the instrument effected a tran;:r
the property to the donees subject to the trt
applying the profits of the lands, etc., in rp
tuity to certain charitable purposes, and w. m
revocable, whether the transaction be vieweas
pure trust or as a gift. The power of re'kii
gifts is given under the Mahomedan law oy :
the case of private gifts for the donee's on ns
no relationship existing between the donor ai tl
donee. Gtjlam Htjssain Saib v. Agi AjAjfii
axlah Saib. Agi Ajam Tadallah Saib v. 'tia
Htjssain Saib . . . . 4 M 1. 4

3. Power of revocaon-

donee — Gift by father to so: E
w there can be no revocaticof

Alienation I

Mahomedan

gift by a ather toason whenthe donee has aba((

the thing given. Wajeed At.i v. Abeool /t

W. E. 186, 12

4. Deed c gi

made in contemplation of marriage. A h|a-bi
iwaz, or deed of gift made in contempl£pn '
marriage, is'not a revocable instrument. KpOO
V.' Ameerunnessa ... 1 Hyp 18

MAHOMEDAN LAW— GUAEDIAll

See Guardians and Wards Act,
I. L. E. 29

See Mahomedan Law — Maeruge
IBoi

See Mahomedan Law— Widow. !

I. L. B. 26 Mi 78-
1. Bight of guardiaifhiP-

Mother — Father — Infant under seven yea', Ac
cording to Mahomedan law, the mother is Ititic'
in preference to the father, to the custod of "'
infant under seven years of age. Futtj Ai
Shah v. Mahomed Mukeem Oodeen. Iottei
Ali Shah v. Fuzeeluttunissa Bebee

W. E. 184. 13]

Raj Begum v. Eeza Hossein . 2 WB. 7<

( 7949 )

DIGEST OF CASES.

( 7950 )

MAHOMEDAN"
contd.
2.-

LAW— GUARDIAN-

Mother — Custody

tf child — Male child — Female child. According
to Mahomedan law, a mother is entitled to the
-ustody of her child, if such child be a male, till it
ihall have attained the age of seven years ; if such
>hUd be a female, till it shall have reached the age
at puberty. In the matter of Tayheb Ally

2 Hyde 63

3. Hizanvt—The

u^tody of female minors before puberty—Mothers
ight. By the Mahomedan law the mother is en-
titled to the custody of a female minor who has not
ittained her puberty, in preference to the husband.
Scb-Kadir v. Zuleikha Bibi

I. L. E. 11 Calc. 649

Minors — Custody

j— Mother. According to the Shiah school of the
ilahomedan law, a mother is entitled to the custody
.f her female children unless she has been guilty of
inchastity. In the matttr of Hosskini Begum

I. L. R. 7 Calc. 434

5. — Mother — Pater-

nl uncle — Minors, custody of. According to Maho-
ledan law, a mother has a preferential right over
lie paternal uncle to the guardianship of minors
nd to the custody of their persons. Alimodetn
loALLEM V. Syfoora Bibee 6 W. R. Mis. 125

Mother,

re-mar-

'age of. Under the Mahomedan law, the mother
1 1 of all persons best entitled to the custody of in-
mt children up to the age of puberty ; but her
^ght is made void by marriage A\'ith a stranger.
Jeedhtjn- Bibee v. Fuzuloolah . 20 "W. R. 411

"• — • Custody of minor

■.yn^Mother, right of. According to thejMaho-
ledan law, a mother has the right of custody of the
lerson of her minor son up to seven years of age.
^oere : Where she does not maintain him, has she,
3 against a relation on the father's side, the right
jf custody and control after that age ? In the

otter 0/ Ameeroonissa . IIW. R. 297

"• Girl not Jiaving

Itatned puberty — Grandmother — Maternal grand-
mother as guardian^Act IX of 1861, s. 3. Under
le Mahomedan law, the grandmother is entitled to
jie guardianship of a minor female child in pre-
irence to the child's paternal uncle, where such
joild, although married to a minor, has not attained
Puberty. Bhoocha v. Elahi Bux

I. li. R. 11 Calc. 574

i ° Custody of chil-

■'•r^Act IX of 1861, s. 5— Appeal. The Maho-
m law takes a more liberal view of the mother's
with regard to the custody of her children than
the English law, under which the father's title
!io custody of his children subsists from the
lent of their birth, while under the Mahomedan
" a mother's title to such custody remains till
IP children attain the age of seven years. An appli-
;tion was made by a Mahomedan father under s.

MAHOMEDAN

contd.

LAW— GUARDIAN—

1 of Act IX of 18G1 that his two minor children,
aged respectively twelve and nine years, should be
taken out of the custody of their mother and handed
over to his own custody. The application having
been rejected). by the District Judge, an appeal
was preferred to the High Court as an appeal from
an order. It was objected to the hearing of the
appeal that, in view of s. 5 of Act IX of 1881,
the appeal should have been as from a decree, and
should have been made under the rules applicable
to a regular appeal : — Held, that, looking to the
peculiar nature of the proceedings, the objection was
a highly technical one, and as all the evidence in the
case was upon the record and was all taken down
in English, it would only be delaying the hearino-
of the appeal upon very inadequate grounds if the
objection were allowed. Held, also, that, according
to the principles of the Mahomedan law, the appel-
lant was by law entitled to have the children in his
custody, subject always to the principle, which must
govern a case of this kind, that there was no reason
to apprehend that by being in such custody they
would run the risk of bodily injury, and that (with-
out saying that this exhausted the considerations
that might arise, warranting the Court in refusing
an application for the custody of minors) there was
nothing in the record in this case which disclosed
any proper ground to ju.stify the refusal of the appli-
cation. Idu v. Amikan . I. L. R. 8 All. 322

10. Gi ardianship c f

female minor — Female minor, right to custody of
— Mahomedan law, Shiah sect — Act IX of 1661 —
Act XL of 1858, s. 27. A Mahomedan father of the
Shiah sect is entitled to the custody of a daughter
above the age of 7 years as against the mother.
The decision in Fuseehun v. Kajo, I. L. B. 10 Cnlc.
15, has no application to a case where the father is
seeking to get the custody of his daughter. In th'
m,aiter of the petition of Mahomed Ajiir Khan.
Lardli Begum v. Mahomed Amir Khan

I. L. R. 14 Calc. 615

11.

Minor — Guai-

dian of property — Certificnte of guardianship. Under
the Mahomedan law, the brother of the mother
of a female minor, whose parents are dead, is
entitled, in preference to a mere stranger, to the
guardianship of the property of the minor, unless it
be shown that he is in some way untit to take
charge of such property. In the matter of the
petition of Islam Buksh. Imam Buksh v.
Thacko Bibee . . I. L. R. 9 Calc. 599

12.

Sister — Minor,

cicttody of — Prostitute. Held, where the plaintitf
sued for the custody of her minor sister, as her legal
guardian under Mahomedan law, that the fact of
the plaintig being a prostitute was, although she
was legally entitled to the custody of such minor, a
sufficient reason for dismissing the suit in the
interests of such minor. Abasi v. Duxne

I. L. R. 1 All. 598

( 7951 )

DIGEST OF CASES.

7952 )

MAHOMED AN
contd.
13.

L AW— GUARDIAN

Uncle — Nephew

— Next friend. The rule of Mahomedan law that an
uncle cannot be the guardian of a minor nephew's
property does not prevent an uncle representing his
infant nephew under the Code of Civil Procedure as
next friend in a suit. Abdul Bari v. Rash Behari
Pal 6 C. L. R. 413

14. ■ Suit for restitu-
tion of minor wife in custody of her mother. The
plaintiff sued to recover M, who was ten years of
age, alleging that he had been married to her, that
she had remained at his house, and that her mother
and other persons had taken h3r away, and would
not allow her to return. Th? lower Appellate Court
dismissed the suit on the ground that 31 Avas a
minor, and aho on the ground that she was only ten
years of age: — //eM, that the plaintiff's suit was
properly dismissed- Wazeer Ali v. Kaim Ali
5 N. W. 196

15.

Minor's property — Sale hy

guardian of property of minor — Purchaser, right
of. Under the Mahomedan law, a sale by a
guardian of property belonging to a minor is
not permitted otherwise than in case of urgent
necessity or clear advantage to the infant.
A purchaser from such guardian cannot defend
his titls on the ground of the bond fides of the
transaction. An elder brother is not in the posi-
tion of a guardian having any power as siich
over the property of his minor sisteis.
Bukshax v. Maldai Kooeri 3 B. L. R. A. C. 423

S.C. BUKSHUN V. DOOLBUN . 12 W. R. 337

16. Brothers. Under

the Mahomedan law, remote guardians, among
whom are brothers, can under no circumstances
aliene the property of a minor ; their guardianship
only extends to matters connected with the edu-
cation of their wards, and the near guardians alone
have limited power over the immoveable property.
Button v. Doomee Khan . . 3 Agra 21

17. ■ Legal necessity —

Sale. The question of legal necessity does not neces-
sarily arise in cases of sale under the Mahomedan
law, though it may properly be an element for con-
Bideration when the conduct of a guardian is called
in question. The Mahomedan law looks to the bene-
fit of the minor, and permits the guardian to dis-
pose of moveable property if it be for the benefit of
the minor. In this case a sale made to carry on im-
portant litigation was held ho^rta fide and for the
benefit of the minor, the decision in Grose's Case,
4 B. L. R. O. C. 1 ; 12 W. R. 0. C. 13, not being
applicable. Syedun v. Velayet Alt Khan

17 W. R. 239

18. Sale of minor's

property — Validity of such sale — Sanction of sale
by ruling authority. The plaintiff sued to recover
her husband's share in certain property at S, to
which he and other persons became entitled as heirs
of M. That property had been sold to the defend-
ants by the heirs of M during the minority of the

MAHOMEDAN

contd.

LAW— GUARDIA]^.

plaintiff's husband, his elder brother acting for fa
in the transaction. It was proved that the salef
the property to the defendants had been appro' i
of by H, who was the agent of the Governor of Br -
bay at S, and the representative of the ruling aut i-
r ty in tho management of J/'s estate. The plai.-
iff contended that, according to Mahomedan \r,
it was not competent for the elder brother of a mi r
as guardian to alienate a minor's property. H',
that the sanction of the ruling power constitute a
sufficient authority for the act of the guardian, di-
vided that the transaction was one which, accord g
to Mahomedan law, a duly constituted guard n
might have entered into on behalf of his ward. T. t
law permits a guardian to sell the immoveae
property of his ward, when the late incumbent I'i
in debt, or when the sale of such property is neu-
sary for the maintenance of the minor. The (.-
dence in the present case showed that the indebt,-
ness of M and the distressed condition of his hrs
existed in a sufficient degree to justify the sale of e
whole property of the heirs. Husatn Begam^
Zia-ul-nisa Begam . I. L . R. 6 Bom. 47

19. —

Guardian

Minor — Infar-

of property — Mortgage — Co-heirs— i-
fants' liability. In May 1881 certain co-heirs <|a
deceased Mahomedan mortgaged a portion of s
property which had descended to them in comnn
with others, then infants, as heirs of the decea.'l.
The mortgage was raised for the purpose of paj.g
off arrears of rent of a patni talulch M'hich waa
part of the property inherited from the decead.
There was no evidence to show that there vre
any other necessary expenses connected with le
deceased's estate which had to be met, nor wit
that estate consisted of, nor M'hether the arreanf
rent could or could not have been paid withit
having recourse to the mortgage. According toie
Mahoniedan law, the mortgagors were not the gjr-
dians of the property of the infants. Held, thatjie
shares taken by the infants as heirs of the deceri.
were not bound by th ? mortgage. Bhu'inath
»'. Ahmed Hosain . . I. L. R. 11 Calc.

20. — Alienation 'y

guard'an to pay ances'ral debts — Minor, tale ha-
ing on. H, being in possession of certain real p-
perty on her account, and on account of her nep^w
and niece, minors, of whose persons and proplty
she had assumed charge in the capacity of guarcla,
sold the property, in good faith and for valuable n-
sideration, in order to liquidate ancestral debtspd
for other necessary purposes and wants of hebl'
and the minors. Held, that under Mahoniedan k,
and according to justice, equity, and good conscilce
the sale was binding on the minors. Hasan -¥ f-
MehdiHusain . . I. L. R.1A1L88

21.

Alienation \^y

widow — Rights of other heirs — Minor — Motft —
Mortgage — First and second mortgagees — Suiiby
first mortgagee for sale of mortgaged prope'i —
Second mortgagee not made a party — Transfe of
Property {Act IV of 1882), ss. 78, 85— Res jvdita

( 7953

DKJEST OF CASES.

( 7954

MAHOMED AN-

contd-

LAW— GUARDIAW-

Upon the death of G, a Mahomedan, his estate
was divisible into eight shares, two of which de-
volved upon his son, A, one upon each of his five
daughters, and one upon his widow, B. The name
of B only was recorded in the revenue registers in
respect of the zamindari j)roperty left by G. In
1876 .4 and B gave to X a deed of simple mortgage
of 2i biswas out of a 5 biswas share of a village in-
cluded in the said property. In 1878 A and s'gave
to S a deed of simple mortgage of the 5 biswas,
which were described in the deed as the widow's
" own " property. In 1882 A' obtained a decree
upon his mortgage for the sale of the mortgaged pro-
perty, and it A\as put up for sale and purchased by
A' himself in January 1884. In February and Nov-
.mber 1884 the daughters of G obtained ev parte
. decrees agamst A and B in suits brought by them to
recover their shares by inheritance in the 5 biswas.
' In 1885 ^ brought a suit upon his mortgage of 1878,
: claiming the amount due thereon and the sale of the'
whole 5 biswas. To this suit he made defendants A
;and B, G's daughters, and A, alleging that tho
decrees of February and November 1884^ were frau-
dulently and collusively obtained ; and as to the auc
tion sale of January 1884, that the 2^ biswas were
sold subject to his mortgage, he not having been
■ made a party to the suit brought by A upon the
,deed of 187(5, and therefore not being bound bv any
of the proceedings taken therein or consequent there-
ito. It w^as contended that £'s position as head of
the family entitled her to deal with the property so
as to bind all the members of the family, though
lusmg her name only ; audit was suggested that, at
|the time of the mortgage of 1878, some of the daugh-
tters were minors. On behalf of the daughters it was
rontended, inter ulki, that the decrees obtained by
;thpm against A and B in February 1884 were con-
clusive, by way of res judicata, against the plaintilf,
|R;ho, as mortgagee from A and B, claimed under a
ititle derived from them. Held, per Mahmood, J.,
;tiat according to the JMahomedan \a\v, the
|5urviving widow, though held in respect by the
;aiembers of the family, would not be entitled to
I leal with the property so as to bind them, and
,tne entry of her name in the revenue registers in
,°® P'ace of her deceased husband' would
j3robably be a mere mark of respect and sym-
l^thj-. Her position in respect of her husband's
I 'State is ordinarily nothing more or less than that
't any other heir, and even w^here her children are
cannot exercise any power of disposi-

inmors, she

'l?K ^^'*^ reference to their property, because
|-!tnough she may, under certain limitations,
|Ct as guardian of their persons till they reach the
I ge of discretion, she cannot exercise control or act
j"* their guardian in respect of their property with-
out special appointment by the ruling authority, in
letault of other relations who are entitled to such
•uardianship. Even, therefore, if some of the daugh-
i^rs in the present case were minors at the time of
iff* P'"!°^'^"s mortgage, their shares could not be
inected thereby. They could only be so affected if
iJcumstances existed which would furnish grounds

MAHOMEDAN

contd-

LAW— GUAEDIAN—

for applying against them the rule of estoppel
contained m s. 115 of the Evidence Act, or the doc-
trine of equity formulated in s. 41 of the Transfer of
Property Act, but here no such circumstances
existed. Sitaram v. Amir Begum

I. L. R. 8 All. 324

,, • "„ , , — Power of guar-

atans— bale by guardian of property to u'hich ward's
title was in dispute, a7id for the benefit of the hitter
By the Mahomedan law, guardians are not at liberty
to sell the immoveable property of their wards, the
title to which property is not disputed, except under
certain circumstances specified in ilacna^hten's
Principles of Mahomedan Law, Ch. Vin,'cl. 14.
But where disputes, existing as to the title to re-
venue-paying land, of which part formed the ward's
shares, sold by their guardian, where thereby ended,
and it was rendered practicable for the Collector to
effect a settlement oi a large part of the land, a fair
price moreover having been obtained, the validity
of the sale was maintained in favour of the purchaser
as against the wards for whose benefit the transac-
tion was. Although the sale-deed incorrectly
stated the purpose of the sale to have been to liqui-
date debts, a statement repeated in a petition to the
Collector, asking that settlement of the shares sold
should be made with the purchaser, yet, on the
transaction bei ig afterwards impeached by the
wards -.—Held, that it was open to the guardian to
prove the real nature of the sale, and to show that
it was one beneficial to them. Kali Drxx .Jha v.
Abdul Ali . . L L. R, 16 Calc. 627

L. R. 16 I. A. 96

23. Mother of )itinor

— Power tj sell propcHy of minor. According to
Mahomedan law, a mother, not being the legal
guardian of her minor child, cannot do any act re-
lating to the property of the minor so as to l)ind him.
1. L. R. 20 BoQX 199

Baba v. Shivappa

24.

Uncle of

— Liability of minor for act of person without autho-
rity purporting to act as the guardian of the minor.
The uncle of a minor Mahomedan purporting, though
without authority, to act as the minor's guardian,
made a mortgage of certain property belonging to
the minor, and subsequently took a lease of the
mortgaged property in favour of the minor. The
minor having made default in payment, the mort-
Tgagee sued to recover rent : — Held, that the mort-
gagee wa.s not entitled to recover, although, had
the minor sued the mortgagee to avoid the mort-
gage, he might not have been able to succeed with-
out paying compensation to the mortgagee to the
extent to which he or his property had benefited by
the money advanced on the security of the mort-
gage. Ruttun V. Dhonec Khan, 3 Agra 21 ; Bhut-
with Dey v. Ahmed Homin, I. L. R. 10 Calc. 417 ;
Anapumibai v. Durgapa Mahalapa, I. L. R. 20
Bom. 1-50 ; Babu v. Shivappa, I. L. R. 20 Bom.
199 ; Bukshun v. Doolhin, 12 W. R. 337 : 3 B. L. R.
A. C. 423 ; and Girraj Buksh v. Hamid Ali, I. L. R.

( 7955 )

DIGEST OF CASES.

( 7956 )

MAHOMED AN LAW— GUARDIAN—

contd.
9 All. 340, referred to. Nizam-ud-din Shah v.
Akandi Prasad . . I. L. R. 18 All. 373

25.

Mothtr's power

to bind her minor children's estate — Minor — Liability
of minor for the act of mother purporting to act as
guardian. Under the Mahomedan law, a mother
is not de facto guardian of her minor children, and,
unless she is appointed a guardian de jure, or is
specially authorized by the District Judge, she has
no power to bind their estate by mortgage or other-
wise. Such an act by the mother is entirely void.
Bhutnafh Dey v. Ahmed Hosain, I. L. R. 11 Calc.
417 ; Baba v. Shivappa, I. L. R. 20 Bom. 199 ;
and Nizamuddin Shah v. Anarula Prasad, I. L.
R. 18 All. 373, referred to. Moyna Bibi v.
Banktj Behari Biswas fl902)

I. L. R. 29 Gale. 473 : s.c. 6 C. W. N. 667

26. Guardians and

Wards Act {VIII of 1890), s. 10 — Guardian and
minor — Maliomedan law — Paternal iincle or mother.
The paternal uncle has no legal right under the
Mahomedan law to the guardianship of the property
of his minor nephews and nieces superior to that
of their mother. Shaikh Alimodeen Moallen v.
Syfoora Bibee, 6 W. R. M. R. 125, referred to.
Alim-ullah Khan v. Abadi Beg am (1906)

I. L. R. 29 All. 10

27. ; De facto guar-
dian, poioer of, over minor's jjroperty — Transfer of
Property Act {IV of 1882), s. 51 — Equitable principle
embodied in s. 51 not opposed to Mahomedan law.
Under Mahomedan law, a sale by the mother, aa
de facto guardian of her minor son, of the property
of such minor is not binding on him. The rule of
equity embodied in s. 51 of the Transfer of Property
Act is not opposed to any principle of Mahomedan
law, and s. 2 does not preclude its application in
cases decided under the Mahomedan law. What con-
stitutes good faith within the meaning of s. 51 is a
question of fact ; and a person may act in good
faith, though he acts under a mistake of law.
DuRGOZi Pvow V. Fakeer Sahib (1906)

I. L. R. 30 Mad. 197

28. ■ Minor'' s property

— Power of de facto guardian to alienate — Mother,
alienation by — validity — Legal necessity — Benefit —
Rule of justice, equity and good conscience. Under
Mahomedan law, a de facto guardian such as the
mother can alienate her minor children's property
for legal necessity and for their benefit. Moyna
Bibi V. Banku BeharylBistvas, I. L. R. 29 Calc. 473 :
6 C. W. N. 667 ; Hurbai v. Hiraji Byramji Shanja,
I. L. R. 20 Bom. 116, and Bhut Nath Dey v. Ahmed
Hossain, I. L. R. 11 Calc. 417, distinguished.
Hasan Ali v. MeMi Husnin-, I. L. R. 1 All. 533 ;
Majdian v. Ram Narain, I. L. R. 26 All. 22, and
Syedunv. Velayat Ali Khan, 17 W. R. 239, referred
to. MuNSHi Mahomed Hossain v. Based Sheikh
(1906) . . . . 11 C. W. N. 71

^^9. ■ _ Guardian of pro-
perty— Mother's power to sell her minor children's

MAHOMEDAN

C07icld.

LAW— GUARDIAN-

estate — Alienation for benefit of the minor. Althougl
according to Mahomedan law the mother of a minoi
is not guardian of his property yet, if she deals witl
the minor's estate, her acts, if they are for the
benefit of the minor, should be upheld. Moym
Bibi V. Banku Behari Biswas, I. L. R. 29 Calc. 473
referred to and distinguished. Mafazzal Hosai:
V. Basid Seikh (1906) . I. L. R. 34 Gale. 3(

30. Guardian of pro

perty — Mother'' s power to sell her minor children'
state — Alienation by de facto guardian for the benef
of the minor. Although under the Mahomedan lav
a mother is not the legal guardian of the property
of her minor children, yet, when she, acting as th^
de facto guardian, purports to deal with the pr"-'
perty, the transaction, if it is for the benefit of tl
minor, ought to stand, in the absence of fraud c
any other element of that nature. Mafazzal Hosat
V. Basid Sheikh, I. L. R. 34 Calc. 36 : 4 C. L. J
485 ; 11 C. W. N. 71 ; Hasan Ali v. MeMi Husaii
I. L. R. 1 All. 533, and Majidan v. Ram Naraii
I. L. R. 26 All. 22, approved. iMoyna BiU v. Bank
Behari Biswas, I. L. R. 29 Calc. 473 ; Bhutnat
Dey V. Ahmed Hosain, I. L. R. 11 Calc. 417, an;
Hurbai v. Hiraji Byramji Shanja, I. L. R. 20 Bon
116. referred to. Ram Charan Sanyal v. Anuki"!
Chandra Acharjya (1906) I. L. R. 34 Calc' 6

MAHOMEDAN LAW— INHERITANCE

See Converts . 1 Agra F. B, 3

2 Agra 6

3 Agra 8
I. L. R. 10 Bom.

I. L. R. 20 Bom. 5

I. L. R. 21 Bom, li

See Lunatic . I. L, R. 15 All. S

See Mahomedan Law — Custom,

I. L. R. 21 Gale. 1

I. L.R. 21 Calc. IV
I. R. 20 I. A. li

lW — Presumption t

See Mahomedan La

DEATH . I. L. R. 2 All. 6

See Mahomedan Law — Succession
See Slavery . I. L. R. 3 Bom.

L. R. 6 L A. If
12 Bom. 1^

1. Enumeration of heirs |
Mahom.edan law — Return. Three differqt
kinds of heirs are recognized by Madomedan law-
(i) sharers, (ii) residuaries, and (iii) distant kindr
Where there are no residuaries, the principle
return provides that the surplus of the shares of '
sharers shall revert to them in proportion to th
shares, except in the cases of husband and w
Next are the distant kindred. Gujadhur Pr
SHAD V. Abdoolt.ah . . 11 W. B. 2p

2. Kindred related in eqi i^

degrees — Males. Where surviving kindred are
lated in like degree to a deceased party, the ni.
are entitled under Mahomedan law to a dou^
share of the inheritance. Ram Beharee SiNGl^.
SiTARA Khatoon . . . 10 W. R. ?&

( 7957 )

DIGEST OF CASES.

( 7958 )

MAHOMEDAW LAW— INHERITANCE

— contd.

3. Heirs of missing person —

Division of (state to be held by heirs on trust. The
plaintiff sued to be put in possession of a share of
the estate of a missing person, alleging that by
Mahomedan law and custom they were entitled to
hold in trust for him a share equal to that which
would devolve on them after his death by right of
inheritance : — Held, that under the Mahomedan law
the heirs of a missing person are not, as such, en-
titled to divide his estate among themselves, either
as a trust or otherwise, before his death, natural or
legal. K.\LEE Khan v. Jadee . 5 N". W. 62

4. Heirs of husband on death

of wife, whose heir he w^as. Whatever may
be the position and rights of a husband, being the
only surviving heir of his wife, according to the
Mahomedan law, there is no representation in
matters of succession, and therefore those rights
do not descend to the heirs of a husband who has
predeceased the wife, and who are themselves no
relation of the wife. In fact, under the Mahomedan
system, after the dissolution of a marriage contract
b\- death or otherwise, the parties or their heirs
bear no more relation to one another than the
heirs of quondam [lartners in the same mercantile
house. Ekin Bebee v. Asiieuf Ali . 1 W. R. 152

5. Heirs of girl not validly

married— Pa<erno/ grandmother— Mother— Hnli
brothers or sisters. A marriage performed between
minors in the fazolee (nominal) form, the girl's
father being dead and the marriage being contracted
by her paternal grandmother, was held to be invalid
on the death of the girl without afterwards meeting
or communicating with her husband because after
arriving at puberty she had never expressed in any
way assent to or dissent from the marriage -.—Held,
that under such circumstances the paternal grand-
mother of the girl was not entitled to inherit her
estate ; that the mother as her surviving parent was
entitled to a third share thereof ; and that her half
brothers and sisters were entitled without prejudice
to any claims by third parties to the residue.
MuLKA .Jehan Sahib a r. Mahomed Ushkurree
Khax L. R. I. A. Sup, Vol. 192 : 26 W. R. 26

Estate limited to take effect

in favour of a person after another's death.

It is not consistent with :Mahoraedan law to limit
an estate to take effect after the determination, on
I the death of the owner, of a prior estate by way of
! what is known to English law as a vested remainder
j . so as to create an interest which can pass to a third
' person before the determination of the prior estate.
Abdul Wahid Khan v. Muran Bibee

I. L. R. 11 Cale. 597 : L. R. 12 I. A. 91
,7. Primogeniture, custom of—

Exclusion of females from inheritance. Observa-
tions on the law laid down by the Privy Council
regarding the custom of primogeniture' and the
e.xclusion of females and other heirs from inherit-
ance. Muhammad Ismail Mhax v. Fidayat-un-
NISSA . . . I. L. R. 3 AIL 723

MAHOMEDAN LAW—INHERITANCE

— ontd.

8. Proof of custom.

Where a suit was brought by two younger bro-
thers, in accordance with Mahomedan law, for their
shares in a property which was held by an elder
brother and which had been held by a succession of
elder brothers for a long course of years, two of the
members having in former trials had their rights to
exclusive inheritance upheld by formal decisions: —
Held, by the High Court, that, in the absence of any
sanads declaring the contrary, the practice of suc-
cession by primogeniture mui-t be accepted as pre-
vailing on the estate. Mahomed Akul Beg v.
Mahomed Koytjm Beg . 25 W. R. 199

9. Adopted son. An adopted son

cannot inherit among IMahomcdans. Oheed Khan
V. CoLLECTOK OF Sahabad . 9 W. R. 502

10.

Daughters of deceased

brother — Brother — Sister. Under ilahomedan
law, the daughters of a deceased brother of a person
who demises cannot take any share of such person's
property so long as a brother and sister, or only a
brother, survives. Azeegunnissa v. RrHMANOoL-
lah 10 W. R. 306

11. Daughter— i/(Ww embracing

Mahomedan religion. Held, that a Hindu family,
having embraced the jMahomedan religion, is bound
by the laws of that religion as regards succession,
and that the appellant, the daughter, was entitled
under that law to inherit from her father. So.tan v.
Roop Ram 2 Agra 61

12. Illegitimate sons — S^iccession

to father's property. According to Mahomedan law,
illeaitimate sons can claim no relationship with their
father's family. Boodhun v. Jan Khan

13 W. R. 265

13.

Brcthcrs — Con-

sanguinity— Nasah. The children of fornication or
adultery (wahid-uz-zina) have no nasab or consan-
guinity ; hence, the right of inheritance being found-
ed on nasab, one illegitimate brother cannot suc-
ceed to the estate of another. Sahebzadi
Begum v. Himmut Bahadur

4 B. L. R. A. C. 103 : 12 W. R. 512

s.c. affirmed on review. Himmtt Bahadur '■.

Sahebzadi Begum . . 14 W. R. 125

14.

Illegitimate children—

Successio7i to property of Hit giii mate child — Con-
vert to Christianity. The State (and not the mother
of an illegitimate Christian child) is entitled to
succeed to the property of that child dying intestate
after he has attained to man's estate, and having
neither wife nor legitimate child. The Mahomedan
law is not applicable to the illegitimate child of a
Mahomedan woman brought up and dying a Chris-
tian. Nancy alias Zuhoorun v. Bukgicss

1 W. R. 272

15. Residuaries- Z)f.*cf?(//a«y.5 in

main line of paternal great-grandfather. By ilaho-
mcdan law, descendants in the male line of the
paternal great-grandfather of an intestate are within

( 7959 )

DIGEST OF CASES.

( 7960 )

TVIAHOMEDAN LAW— INHERITANCE

— Colltd.

the class of ' ' residuary ' ' heirs, and entitled to take,
to the exclusion of the children of the intestate's
sisters of the whole blood. Mohidin Ahmid Khan
V. Muhammad

1 Mad. 92

S.C. MOHEDEEK AhMED KhAN V. MaHOMED

1 Ind. Jur. O. S. 132

16.

Descendants of

paternal grandfather's brother. According to the
Mahomedan law, descendants of a paternal grand-
father's brother are entitled to rank among residu-
aries, and as such are preferable heirs to grand-
daughters. Showkut Ali v. Ahmud Alt. Meher
Ali v. Showkut Ali . . 8 W. E. 39

17.

Step-sister. A

step-sister of a deceased proprietor is, according to

:Mahomedan law, one of his heirs, and in the cate-

sorv of his residuaries. Ameerun v. Ruheemun

2 Agra, Pt. 11,162

18, Collateral line.

Under the Mahomedan law, the succession of resi-
duaries in their own right is as unlimited in the col-
lateral as in the direct line, where it is expressly
said to be how low and how high soever. Mahomed
Haneef v. Mahomed Masoom . 21 W. R. 371

19. ■ Suit by legal

sharer — Simultaneous suit hy residuaries. _ A suit
by a Mahomedan widow (legal sharer) against her
sons (residuaries) for her share of the property left
by her deceased husband is no bar to a suit being
brought by some of the sons against the others for
their^shares. Imam Saheb v. Kasim Saheb

11 Bom. 104

Hereditary Offices

MAHOMEDAN LAW— INHERITANCE

■ — -runtd,

return," i.e., on failure of residuaries; but some
authorities ssem to hold that, if there are no heirs
by blood alive, the widow would take the whole
estate to the exclusion of the lisc. Hurmut-ool-
NissA Begum v. Allah Dia Khan

17 W. R. P. C. 108

24. Sister, a residuary with.

daughters — Son of father's paternal uncle. A
Mahomedan lady died, leaving a husband, two
daughters, a sister, and the son of her father's
paternal uncle : —Held, that the sister was entitled,
in preference to the paternal kinsman, to the residue
of the deceased's estate after the husband and
daughters had taken their shares. Meherjan
Begam v. Shajadi Begam. Nurudin v. Amtul-
NissA .... L L. R. 24 Bom. 112

Amendment Act (Bom. Act V of 18S6),
Succession to vatan becoming the property of widow
and daughter — Construction of statute. S. 2 of
Bombay Act V of 1886 is not retrospective. A
vatan having devolved on the widow and daughter
of a deceased Mahomedan as his h^irs, and each
having become owner of her share in it, in so far as
a vatan can be held in ownership : — Held, that on
the death of the widow in 1890, leaving no qualified
male heirs, the daughter was entitled to succeed as
her heir. Rahimkhan v. Fatit Bibi Bintesaheb
Khan . . I. L, R. 21 Bom. 118

21. Widow's rights to " return '

— Absence of distant kindred. By the Mahomedan
law of inheritance, in default of other sharers and in
the absence of distant kindred, the widow is en-
titled to the " return " to the exclusion of the fisc.
Mahomed Arshad Chowdhry v. Sajida Banoo

I. L. R. 3 Calc. 702 : 2 C. L. R. 46

22. Distant kindred—" Return''''

— Widoxc of the deceased — Heir^. Under the

^lahomedan law, a widow has no claim to share in
the ' ' return ' ' or residue of her deceased husband 's
estate as against other heirs. Koonari Bibi v.
Dalim Bibi . . . I. L. R. 11 Calc. 14

23. Widow— Right to " return."

As a general rule, a widow takes no share in " the

25.

Sister. Under the Mahomedan

law, a sister is entitled to obtain a share of the es-
tate left by her decea-ed brother. Boolixisharee
Bibee v. Bukaoollah . . 17 W. R. 140

26. Sister's son— Widow. Accord-
ing to Mahomedan law, when a man dies leaving no
children, a sister's son can claim his inheritance
after the widow has obtained her one-fourth share.
MiHOMED NooR Buksh'a Mahomed Hameedooi.
HuQ 5 W. R. 23

27. Childless widow — Shiah law.

According to the law of the Shiah sect, a childless
widow is not entitled to share in the immoveable
property left by her husband, but only in the value
of the materials of the houses and buildings upon
the land. Toonanjan v. Mehkdee Begum

3 Agra 13

28.

Immoveable pro-
perty. Under the Mahomedan law, which governs
members of the Shiah sect, a widow having no child
alive by her deceased husband inherits nothing of
the land which he leaves. Asloo v. Umdutooxiss^\
Umdutoonissa v. Asloo . . 20 W. R. 297

29. . ^-— Inheritance by

chihliess widoivs, Shiah sect. The childless widow
of a Mahomedan of the Shiah school is not entitled
to any share in the land left by her husband. k\.l
HussAiN V. Sajuda Begum . I. L. R. 21 Mad. 27

30. Land — Buildings.

Held' following Toonanjan v. Mehndee Begum,

3 Agra 13, that the childless Avidow of a Shiah

Mahomedan, though she takes nothing out of her

deceased husband's land, inherits a share of the

buildings left by him. Umardaraz Ali Khan ».

WiLAYAT Ali Khan I. L. R. 19 All. 169

See Aga Mahomed Jaffer Bindanim t>.

KooLSOM Bibee. Koolsom Bibee v. Aga

Mahomed Jaffer Bindanim I. L. R. 25 Calc. 9

L. R. 24 I. A. 196

1 C. W. N. 449

and daughters

31.

Widow

According to Mahomedan law, a Avidow and two
daughters are entitled between them to nineteen i
twenty-fourths of the property of their deceased!

( 7961 )

DIGEST OF CASES.

( 79(32 )

MAHOMEDAN LAW— INHERITANCE

— conkl.
husbaml anrj father in the proportion of one-eighth
and two-thirds. Mahomed Ruhwan Khan v.
Khajah Buksh . . . 5 W. R. 212

32. Khoja Mahomedans, cus-
tom of — Succes.sion to property of widow dying
inte-siate. By the custom of the Klioja Mahomedans
when a widow dies intestate and without issue, pro-
perty acquired by her from her deceased husband
does not descend to her own blood-relations, but to
the relations of her deceased husband. If no blood-
relations of the deceased husband are forthcoming,
the property left by the widow belongs to the Jamat.
Quuere : As to the degree of ownership which will
eatitle members of the deceased husband's family to
succeed. In th" groor/.s- of Mulbai. Karim Kiiatav
V. Pakdhan Manji . 2 Bom. 292 : 2nd Ed. 276

33. Exclusion from inheritance

— Inmnily. Mental derangement is no impedi-
ment to succession under the Mahomedan law.
Mahar Ali v. Amaxi . 2 B. L. R. A. C. 306
s.c. Khyratun v. Amanek . 11 W. R. 212

34. Daughter.

Semble : According to the Mahomedan law% want of
chastity in a daughter, before or after the death
of her father, w hether before or after her marriage,
is no impediment to her inheritance. Norona.kaix
Roy v. Neemaeechand Neogy . 6 W. R. 303

35.

Co-sharers-

Svit for 'possession of a share in the property of
a Mahomedan family — Right of suit. In a suit
in 1S22 between the members of a family following
the Mahomedan law of inheritance in which the
plaintiffs sued as sharers for the recovery of their
share in certain property, one of the defendants
pleaded that a paramba, part of the property in dis-
pute, was nut subject to division, but this plea
was unsuccessful, and a decree was passed for the
plaintiffs. The present suit was brought by a
mortgagee from one of the defendants in the former
suit (who had not appeared in that suit, and
against whom therefore the decision had been ex
parte) to recover his share of the above-mentioned
paramba. the subject matter f)f his mortgage ;
the mortgagor was joined as defendant, among
Hiers, including the defendant who had raised the
''•a above stated. This plea was repeated by the
une person: — Held, distinguishing V enkatarama
Lahai Meera, I. L. R. 13 Mad. 2i', on the
ii'und that the parties in the present case were
"verned by the Mahomedan law of inheritance,
it the suit was maintainable. A co-sharer by
' diomedan law has a right to a specific share in
II h item of property left by the person from whom
' inherits, and can sue to recover that share from
ly person in possession of the property. Chaxdu
Kuxhamed . I. Ij. R. 14 Mad. 324

36.

Joint property

Prirtition — Suit for shore of such property — Sfutre
'^'tif-rl to defendant in same suit on payment of
■"■irt-fees. In the Presidency of Bombay a suit

MAHOMEDAN LAW—INHERITANCE

— contd.

for ])artition of an inheritance by Mahomedans is.
hardly distinguishable from a partition suit by
Hindus. In such a suit, if a defendant asks at the
proper time to have his share divided off and allotted
to him, such relief should be granted to liim on pay-
ment of the nccessarv Court-fees. Abdit. Kadar
V. Bapubhai . \ I. L. R. 23 Bom. 188

37. - — -— Sunni and Shiah

sects — Rules of descent — Evidence as to deceased
having been a Sunni. A Mahomedan widow, who
by birth was a Sunni but whose deceased husband
had been a Shiah, had during her married life con-
formed outwardly to his religion. The Sunni and
Shiah rules of inheritance differing, her true heirs
could only be ascertained by determining to which
of these sects the deceased belonged at the time of
her death. The evidence relating to the period
after her husband's death led to the conclusion
that throughout her widowhood she was a Sunni,
having returned to the religion of her youth when
freed from the necessities of her position as the wife
of a Shiah. Hayat-tjx-xissa v. Mihammad Ai.i
Khan . . . . L L. R. 12 All. 290

I. L. R. 17 I. A. 73

38. Renunciation of

right to inherit — Presumption of relinquishment
from acts of parties — Widow. In a suit in the nature
of ejectment, by principal respondent as residuary
heir according to the Mahomedan law of a deceased
person, to recover from his widow, the appellant,
three-fourths of her deceased husband's estate, of
the whole of which she had for upwards of eleven
years been in possession, the plaintiff's title as
residuary heir was put in issue, as well as other
issues touching the widow's dower, etc. The
Privy Council, thinking it of the utmost iiJportance
that those who had thus sanctioned a long posses-
sion should not be allowed lightly to disturb it. or to
escape from those legitimate inferences and pre-
sumptions w^hich on a conflict of evidence arose
from their own acts and conduct, decided in favour
of the widow, holding that the respondent had failed
to establish the title upon which he sued. Accord-
ing to the Mahomedan law, there may be a renun-
ciation of the right to inherit, and such a renun-
ciation need not be expressed, but may be implied
from the ceasing or desisting from prosecuting a
claim maintainable against another. Hurmut
OoL-NissA Beott-m V. Allahdia Khan-
it W. R. P. C. 108

39. — Rdinguishmcvt

of rights of inheritance — Relinquishment executed
before ancestor's death. A Mahomedan sued to
recover his share of the property of his mother,
deceased. It appeared that before her death he
had by a registered deed in consideration of R150
renounced all his claims on her estate : — Held,
that the renunciation was binding on the
plaintiff. KuNin Mamod r. Kunhi Moidtn

I. L. R. 19 Mad. 176

40. Default of sharers— ///f^i/j-

7nacy~ " Return " — Sunni sect — Bequest to an heir-

( 7963 )

DIGEST OF CASES.

( 7964 )

IIAHOMEDAN LAW— INHERITANCE

— contd.

withotit consent of other heirs. According to Maho-
medan law, in default of other sharers by blood and
distant kindred, property left by a man or woman
returns to the widow or to the husband. Mahomed
Arshad Chowdhry v. Sajida Banoo, I. L. R. 3 Calc.
702, followed. Among the Sunni sect, illegitimacy
is no bar to a person inheriting from his mother
and his maternal relations. Sahebzadee Begum v.
Mirza Himmut Bahadur, 12 W. R. 512, considered.
Koonari Bibi v. Dalim Bihi, I. L. R. 11 Gale. 14,
followed. Under the Mahomedan law, a bequest
to an heir is invalid without the consent of the
other heirs. Bafatpx v. Btlaitt Khan-uw (1903)
I. li. R. 30 Calc. 683

41.

Distant kindred — Relati

who is neither a sharer nor a residuary — Great-
qrandson of the brother of the grandfather of the
deceased — Probate and Administration Act {V of
ISSl) — Letters of Administration. According to
Mahomedan law, the term " distant kindred "
includes all relations who are neither sharers nor
residuaries ; therefore a great-grandson of the
brother of the grandfather of the deceased comes
within the term " distant kindred." Abdul
Serang v. Putee Bibi (1902^

I. Ii. R. 29 Calc. 738

42.

Mahomedan law

-Claim to share in grandfather's estate — Onus pro-
han'li — Evidence Act, s. l^g. Where the plaintiff
claimed under Mahomedan law a share in his grand-
father's estate, the onus is on him to show, either
by establishing a presumption under Evidence Act,
1872. s. 108, or by actual evidence that his father's
death occurred at a date subsequent to that of the
deceased owner ; otherwise he is excluded by the
children of the deceased living at his death as being
earlier in degree. . Moolla Cassim bin Mootxa
Ahmed v. Mooula Abdul Rahim

L. R. 32 I. A. 177

43.

! sticcesstonis

— Non-transferable and non-releasable — Transfer of
Property Act {IV of 1S82). s. 6 {a)~Deeds executed
by pardanashin lady — Burden of proof. The chance
of an heir-apparent succeeding; to an estate is under
Mahomedan law neither transferable or releasable.
It is only by an application of the principle that
equity considers that done which ought to be done
that such a chance can, if at all, be bound. It was
not intended by s. 6 (a) of the Transfer of Property
Act to establish and perpetuate the distinction
between that which according to the phraseology
of Ensrlish lawyers is assignable in law and that
wliich is assignable in equity. In the case of deeds
executed by pardanashin ladies, it is requisite that
those who rely on them should satisfy the Court
that they had been explained to and understood by
those who executed them. Sudisht Lai v. Mussum-
mat Sheobarat Kner, L. R. 8 I. A. 39, 43 ; Shambafi
Koeri V. Jago Bibi, I. L. R. 29 Calc. 749, followed.
•Sumsuddin v. Abdul Huseix (1906)

I. L. R. 31 Bom. 165

MAHOMEDAN LAW— INHERITANCE

• — contd.

44.

sion — Childless

Shiahs — Succes-

widow. Under the Imamia law
a widow, if she has no issue alive at her husband's
death, does not inherit any of her husband's im-
moveable property. Muzafpar Alt Khan r.
Parbati (1907) . . I. L. R. 29 All. 640

45. Shiah branch —

Descendants of paternal uncles and aunts — Stirpital
succession. The heirs by consanguinity under the
Shia law of inheritance fall into three classes. In
the first class are, first the parents and secondly
children and other lineal descendants. In the
second class there are first grandparents and ascen-
dants and secondly brothers and sisters and their
descendants. And in the third class come paternal
and maternal uncles and aunts of the deceased and
his parents and their descendants. Succession in
the third class, like that in the first and second
class, is per stirpes and not per cap'tn. Aga
Sheralli v. Bai Kui-Sum Khan am (19081

I. L. R. 32 Bom. 540

46. Custom— Bew^ai Civil Courts

Act (XII of 1887), s. 37 — Evidence of custom at
variance with Mahomedan Law. Where the parties
to a suit are Mahomedans, governed, in regard
to the matters mentioned in s. 37 of the Bengal
Civil Courts Act, 1887, by the ordinary rules of
Mahomedan law, evidence is inadmissible to prove
a custom of succession at variance with that law.
Surmust Khan v. Kadir Dad Khan, 1 Agra F. B.
R. 3S. referred to. Jammya v. Diwan (1900^

I. L. R. 23 All. 20 >

47.

Custom excluding females — j

Inheritance — Distribution of Muhammadarts estatel
— Concurrent findings of fact as to existence of
custom — Practice of Privi/ Council — Limitation Act
{XV of 2S77), Sch. II, Arts. 123, 14 1— Share of sister
where daughters are excluded — Compromise of former
suit—Eflect of compromise as estoppel — Renunica-
tion of claim — Omission to make claim in a former,
suit— Civil Procedure Code {XIV of 1 SS2), s. 13. Inj
a suit brought in 1899 for a share of her sister's |
immoveable property, the distribution of which
the plaintifl contended was governed by the
Mahomedan law, the defendant set up a family
custom, excluding female heirs, as governing the
rights of the parties. Both the Courts in India
held on the evidence that the custom alleged
by the defendants to exist was not established :—
Held, by the Judicial Committee, that the exist-
ence of the custom was a question of fact and
that their usual practice of accepting concurrent
findings of fact should be followed. A Maho-
medan died in 1865 possessed of immoveable pro-
perty which passed first to his mother, and, on
her death shortly afterwards, to his two widows,
each taking an 8 -anna share. On the death of the
senior widow, on 24th January 1888, the junioi
mdow had possession of the whole estate until hei
death on 19th December 1894, when mutation o!
names was made in favour of the defendants whc
were nephews of the senior widow, and who as the

( 7965 )

DIGEST OF CASES.

( 7966 )

MAHOMEDAN LAW— INHERITANCE

— concld.

result of litigation were eventually left possessed
of only the 8 -anna share which had belonged to her.
In a suit instituted on 11th February 1903 by her
sister to recover from the estate of a brother who
died on 7th February 1891, a share of property
■which had devolved upon him on the death of his
sister, the senior widow, and other property
which he had inherited from his father, the plaintiff
claimed the latter as sole heir on the ground that
the widow and daughters were excluded by custom
from inheriting, and that the defendant's father
had predeceased the brother whose estate she was
claiming : Held, in respect of the former property,
that the cause of action arose at the earliest from
the death of junior widow, and the suit having been
brought Mithin 12 years from that date was not
barred by limitation. The Court of the Judicial
Commissioner held that the daughters but not the
widow were excluded by custom, and calculated
the share of the plaintiif on the principle that as the
custom by which daughters were excluded was
I founded on the notion that property should not be
allowed to pass into another family, the exclusion
' should operate for the benefit of the persons who
became heirs in default of daughters who should
therefore be treated as non-existent so as to let in
thefdefendants, the nephews, and their Lordships
of the Judicial Committee afhrmed that view. In
1895 the plaintiff had brought a suit for mainten-
ance against her brothers who were in possession
■ of their father 's property, aud in that suit she made
' a compromise with them on 10th September 1896
, on the terms that they would pay her an allowance
' of R60 per annum for life ; and objection was
taken in the suit brought in 1903 that by her state-
ments and conduct she had relinquished anj' right
to her father 's property, being estopped by th"
j compromise made in the suit of 1S95. and by her
; omission to make her present claim in either
1 of the former suits: — Held, ioT the reasons given
; by the Court of the Judicial Commissioner, that
I under the circumstances no renunciation could
be implied from t he plaintiff 's compromise of her
1 suit, nor from he r omission to make the present
I claim previously and there was no estoppel. The
: onus was on the defendants who alleged such
i-elinijuishment and estoppel to establish their

■^e, and on the evidence they had failed to do so.

' HAMMAD Kabul v. Imtiaz Fatima (1909)

I. L. B. 31 All. 557

MAHOMED AN LAW— JOINT FAMILY-
, I See Limitation Act, 1877, Sch. II, Art

k 120 . 7C.W. N. 155

ff See Limitation Act, 1877, .Aet. 127.

5 W. R. 238

24 W. R. 1

I. L. R. 12 Mad. 380

I. L. R. 10 All. 109

I. L. R. 14 Bom. 70

I. L. R. 15 Mad. 57 ; 60

I. L. R. 16 Bom. 191

I. L. R. 13 All. 282

I. L. R. 22 Calc. 954

MAHOVEEDAN LVW— JOINT FAMilLY.

— cont I.

1. Inferenca of joint possession

Where a Mahomedan lady with her daughters was
found to be living with her brother, and to be sup-
ported by him from the proceeds of the patri-
monial estate, it was held to be a pro^xir and correct
inference that the lady and her daughters were in
possession alcng with the brother, who was the
manager of the property. Achixa Bibee v.
Ajeejoonissa Bibee . . .11 W. R. 45

Evidence of separation-

Separate registration of name^. The separate re-
gistry of the names of shares in the zamindar's
serishta is not proof of separation of their shares.

GUREEBOOLLAH KhAX V. KeBUL LaLL MiTTEK

13W. R. 124

Onus -probandi

— Registration of land in one tmme. In a dispute
between two grandsons as to proprietary right in a
village which had been registered in the name of a
member of the elder branch of the family, the Privy
Council held that the ratio decidendi, according to
which the legal presumption was in favour of one
grandson claiming against another, aud the onus
■probandi placed on the one claiming to be sole
possessor, was more consistent with equity and com-
mon sense than a hard-and-fast rule requiring the
party who claims a joint interest to prove that the
registered proprietor has duly accounted to him for
his proportionate share of the prohts. Registra-
tion of landed property in the name of one member
of a family is not conclusive against the claim of
those who might contend that they had neverthe-
' less continued to retain a joint interest in the pro-
j perty. Hyder Hosseix v. Mahomed Hossein
; " ,^ 17 W. R. 185 : 14 Moo. I. A. 401

4. Acquisition by managing

member — Fre-^uinption. Additions made to the
joint estate by the managing member of a Mahome-
dan family will be presumed, in the absence of proof,
to have been made from the joint estate, and will be
for the benefit of all the members of the family
entitled to share. Veixai iliRA Bavcttax v.
Mira MoiDiN Bavuttan. Vellai -Mira Bavut-
tan v. Varisai Mira Bavuttan . 2 Meui. 414

5. Acquisition by the members

severally — Joint acquisition — Presumption.

When the members of a Mahomedan family live in
commensality, they do not form a ' ' joint family ' '
in the sense in Mhich that expression is used mth
regard to Hindus ; aud m Mahomedan law there is
not, as there is in Hindu law, any presumption that
the acquisitions of the se\ i-ral members are made for
the benefit of the family jointlj'. Abraham v.
Abraham, 9 Moo. I. A. lUo, and Jouala Buhsh
V. Dharum Sing, 10 Moo. 1. A. 511, cited. Rup-
chand Chowdhri/ v. Latu Chowdhrij, 3 C. L. R. 9'J,
doubted. Hak.i.m Khan r. Guol Khan

I. L. R. 8 Calc. 823 : 10 C. L. R 603

iee Jakeb Ali Chowtdhrv v. BAJCHr>DER Sen
I. L. R. 8 Caic. 831 note

( 7967 )

DIGEST OF CASES.

( 7968 )

MAHOMEDAN LAW-

— contd.

-JOINT FAMILY

Purchase by father in son's

name — Onus 'j.rohandi. Semble : Among Maho-
medans where a purchase is made during a father's
lifetime in the name of his son while living in the
father's house, there is no such presumption as
arises in the case of a similar purchase made in the
lifetime of the father of a joint Hindu family ; and
the onus is not on the son to prove that the pur-
chase was not made really for and by the father,
but by the son for himself and with his own funds.
GoLAM Mackdoom V. Hafeezoonnissa

7 W. E. 489
7. Joint or separate acquisi-

tion— Onus f.roba7}di — Presumption as to joint
possession. In a suit by a member of a Mahome-
dan family to recover possession of a share in
landed property alleged to be ancestral, where
defendant claimed the same as his separately
acquired property : — Held, that it was not neces-
sary for defendant to show that he had funds
sufficient to enable him to obtain the property,
and that the burden of proving that the property
was acquired for, and enjoyed by, the whole
family jointly was upon the plaintiff. Mahomed
Afak v. Ekram Ali . . 14 W. K. 374

8. Onus probandi— /Zmiw cus-
toms amongst Mahomedans — Presumption wheri no
allegation of custom made. A and B were two
brothers, Mahomedans, who lived together in com-
mensality. A, whilst so living with his brother,
purchased certain lands under a conveyance exe-
cuted by the vendor and A. In a suit by the heirs
of B against the heirs of A to obtain possession of
such lands, in which they alleged they had been
dispossessed by the heirs of A, the Court found the
land to be joint family property and to have been
purchased with joint funds. On appeal, the onus
of proving that the land was purchased by A alone
was put upon A : Held, that, there being no allega-
tion that the parties had adopted the Hindu law of
property, the Judge, by applying to Mahomedans
the presumption of Hindu law, had cast the onus
on the ^vrong partv. Abdool Adood v. Mahomed
Makmil . \ I. L. R. 10 Calc. 562

9. Liability of family for neees -

saries — Marriage expenses. A and B, who were
Mahomedans living joint in food and estate, se-
parated in Kartick 1279, and at the time of the se-
paration entered into an agreement that, ' ' if claims
relating to the joint estate are brought on the
ground that they are debts due on account of the
time, we were joint and living in commensality,
then /, A , and Z, B, will pay such claims according
to what is just in equal shares. If cither of us do
not pay and one of us shall pay the share of the
other, then the person who has paid shall recover
from the other the amount he has paid for the other."
After the separation, a decree was obtained against
A for the price of certain clothes supplied to him
for his marriage, which took place while A and B
were joint, and ^, having paid the amount of this
decree, sued B for one -half of the amount so paid :
ficW,that the debt was not incurred in a matter

MAHOMEDAN LAW-

— concld.

-JOINT TAMIL'S

necessary to the existence of the family, but fo
the individual benefit of A , and that, as in a Maho
medan family the individual benefited, and no
the family, is liable for expenses incurred for th
benefit of any particular member. A alone wa
liable for the debt. Held, also, that the agreeraen
had reference only to such claims as the famil-
were jointly liable for. Alimunessa Khatuts- i
Hassan Ali . . . 8 C. L. R. 37{

10. Principles ap

plicaUe to purchase. The principles applicable to
purchase by one member of a joint Hindu famiJ
from another are not applicable to Mahomedan.-
Mahamad Amin v. Hasan (19U6)

I. L. R. 31 Bom. K

11.

Partner, death o

effect on partnership — Joint family — Guardian
property, who is—Poiver of de facto guardian t
bind minor — Who is de facto guardian. Unde
Muhammadan, as under English, law, the death of
partner dissolves the partnership. The Muhan:
madan law does not recognise the joint famil
tenure of property prevailing among Hindus ; an
the rights and obligations incident to such tenui
will not apply among Muhammadans. Co-ownei
under Muhammadan law hold their property i
severalty. On the death of a Muhammadan, h
heirs take their shares in severalty, as heirs and nt
as members of the family. One who is not a gua>
dian under Muhammadan law, cannot by takin
possession of the minor's property and dealing wit
it, claim the right to bind the minor by his acts i
de facto guardian. Mafazzal Hosain v. Basi
Sheikh, I. L. R. 34 Calc. 36, distinguished. Und(
Muhammadan law, the father and his executors ai
the guardians of the minor's property and faUir
them, the grandfather and his executors. Failin
these the Court must appoint a proper guardiar
A, B and G, three Muhammadan brothers, carriej
on a partnership business. A died leaving behinj
two minor sons D and E. B and C carried (
the business for themselves and the minors an
borrowed sums for the purposes of such business :
Held, that B and C had no power either as partm
or managers of a joint family to bind D and E tl
their obligations ; and not being guardians und<
Muhammadan law and not having been appointe]
by the Court as such they had no power to ail
as guardian de facto for the minor sons. ABDt
Khader v. Chidambaram Chettiyar (190S)

I. L. R. 32 Mad. 27

MAHOMEDAN LAW— KAZL
1. Appointment of Kazi- Her

ditary office— Bom. Reg. XXVI of 1827— Act .\
of 1864. The enactment of Bombay Regulatii
XXVI of 1827 was adverse to any supposition th.
the office of kazi could be hereditary. The repeal ■
that Regulation by Act XI of 1864 left the Mah'
medan law as it stood before the passing of th;
Regulation ; and that law sanctioned no grant <
such an off ce to a man and his heirs. The appoin

( 7969 )

DIGEST OF CASES.

( 7970 )

MAHOMEDAN 'LAW—KAZT—contd.

ment of kazi lies exclusively with the sovereign, or
other chief executive oflHcer of the State, and ought
to be made with the greatest circumspection with
regard to the fitness of the individual appointed ;
and though the sovereign may have full power to
make the watan attached to the office of kazi here-
ditary, yet he has, under the Mahomedan law, no
power to make the ofhcc itself so. Jamal Wallad
Ahmed v. Jamal Walad Jallal

I. li. H. 1 Bom. 633

2. Bom.. Beg. XXVI

of is 27— Act XI of is 64. Where a sanad granted
by the Emperor Aurangzib in A. D. 1693 did not
purport to confer a hereditary kaziship, but was a
grant of the office of kazi personally to an ancestor
of the plaintiff -.—Held, that the subsequent recogni-
cions or appointments of members of his family as
kazis by native governments did not prove that the
office was or could be made hereditary. Regulation
XXVI of 1827, relating to the appointment of kazis,
was repealed by Act XI of 1864, whereby it is recited
that it is inexpedient that the appointment of kazis
should be made by Government. The continuance
therefore by the Collector of an allowance to the
plaintif! in 1867 could not be regarded as a construc-
tive appointment of him to be kazi. Datjdsha v.
Ismalsha . . . I. L. R. 3 Bom. 72

■-• Hereditary office

-Custom— Hereditary Offices Act {Bom. Act III
of 1874), s. 9. The office of kazi is not an hereditary
office, unless perhaps by special custom of the
locality. \^here such a custom is not established,
property attached to the office is not vatan property
and the Collector has no power to make an order
with respect to it under s. 9 of the Hereditary Offices
Act (Bombay Act III of 18741. Jamal valad
. Ahmed V. Jamal valad Jnllal, I.L. R. 1 Bom. 633
and Baudsha v. Ismalsha, I. L. B. 3 Bom.. 72,
iollowed. Baba Kakaji Shet Shimpi v. Nassarud-

DDJ VALAD AMINTJDDrN KaZI

I. L. R. 18 Bom. 103

See Dhaeamdas Sambhudas v. Haf.asji
I. L. R. 19 Bom. 250

, . ~7~T ; ;~ PoKtr to appoint

kazi of Bombay— Disturbance of office— Bight of
mi— Fees received by hrzi. Sembh .- The power
to appoint a person to the office of kar.i of Bombay
IIS vested in the Governor of Bombay, and not in the
l^overnor in Council. According to Mahomedan
law the appointment of kazi has always been
vested m the chief executive officer of the State,
'^'1 the right to make such appointment has
1 rested with the Mahomedan community
large. When it was shown that the
r.<uutiff had acted as kazi of Bombay for
more than twenty years, and the defendant, in
'!?„ •*!•«" ^!'o"?li<^ against him for disturbing the
;Plaintiff in his office of kazi, was unable to show that

iipL fif'? A ^'^'^ *''''^" ^"^"'''"y appointed, it was
,ieia that the plaintiff so acting as kazi could main-
,T^^^\**^*'°" against the defendant who so dis-
ruroed him in his office, without proving that he,
VOL. Ill

MAHOMEDAN LAW-KAZI-co«cW.

the plaintiff, had been legally appointed. The

sums received by the kazi of Bombay in respect of

his office of kazi are not mere gratuities, but are

. 1''" , ^'-"'■t^in payments annexed to the discharge

of official duties, and are therefore sums in respect

^ ot the privation whereof by a wrongful intruder an

I action either for money had and received or for

disturbance in the office will lie. Muhammad

I i^ussTJB?;. Ahmed . . . 1 Bom. Ap. 18

i • ' ; : — r Court vested uith

I powers of kazi— District Court, jurisdiction of.
A Livil Court of superior jurisdiction in a district is

! vested, generally speaking, with the powers exer-
cised by the kazi. Shama Churx Roy ,• Abdi'l

I I^ABEER . . . . 3 C. W. N. 158

MAHOMEDAN LAW— MAINTENANCE.

1-. Husband's liability for

maintenance— iri/e not arrived nt pubrrti/ living
with parents. Quare : In the case of Mahomedans,
where a wife, although legally married, has not
attained the age of puberty, is there a liability on
the part of the husband to support her as lon^ as
she remains under the roof of her father ? Koia-
I SHux BiBEE V. DiDAR BuKSH . 24 W. R. Or. 44

I .2* Husband and

wife— Decree for past maintenance. In a suit for
i maintenance by a Mahomedan wife against her hus-
, band, where there was no decree or'agreement for
I maintenance before suit -.—Held, reversmg the deci-
sion of the Court below, that the decree .should not
have awarded past maintenance, but that mainten-
ance should have been made payable only from the
date of the decree. Held, also, that future mainten-
ance should have been given only during the conti-
nuance of the marriage, and not during the term of
the plaintilT's natural life. Abdool Futteh MorL-
viE V. Zabunnessa Khatun

I. L. R. 6 Calc. 631 : 8 C. L. R. 242

3. Wife's right to maintenance

— Ascertainment of rate — Bight of suit. Accord-
ing to Mahomedan law, until there has been an
ascertainment of the rate at which maintenance is
payable, no right to maintenance accrues to a wife on
which she can found a suit. Mahomed MrsEEHoon-
DEEN Khax v. Museehooddeen . 2 N. W. 173

4. Agreement for maintenance

— Be-conveyance by wife (on consideraliun of vtain
tenance) of her property received for dower. \\ here a
Mahomedan wife, in re-conveying to her husband
the property received from him in lieu of dower,
took from him a written agreement in which he
covenanted to pay her a certain sura of money
annually without objection or demur : — Held, that
the husband could not avoid payment on any of
the pleas on which a Mahomedan husband could
avoid the payment of maintenance to a wife.
YusooF Ali Chowdhry v. Fyzooxissa Khatoon-
Chowdraln- , . . 15 W. R. 296

5. Mutta wife— J/(/^/rt form, of

marriage — Criminal Procedure Code {Act X of
1S72), s. 536—Shiah sect. Under the law of the

11 X

( 7971 )

DIGEST OF CASES.

( 7972 )

MAHOMEDAN LAW— MAINTENANCE
— concld.

Shiah sect of Mahomedans, a mutta wife is not enti -
tied to maintenance, but such a provision of the law
does not interfere with the statutory right to main -
tenance given by s. 536 of the Code of Criminal Pro-
cedure. In the matter of the Petition of Luddtjn
Sahiba. Luddun Sahiba v. Kamar Kudar
I. L. R. 8 Calc. 736 : 11 C. L. R. 237

MAHOMEDAN LAW— MARIIIAGE.

See Adultery , . 7 C. W. N. 143
See Bigamy . I. L. B. 18 Calc. 264
I. L. R. 19 Calc. 79
See Mahomedan Law — Acknowledg-
ment.
See Mahomedan Law — Dower.

I. L. E. 8 All. 149

I. L. R. 1 All. 483 ; 506

I. L. R. 4 All. 205

I. L. R. 2 All. 831

I. L. R. 23 Mad. 371

I. L. R. 25 Mad. 658

' See Mahomedan Law — Restitution of
Conjugal Rights.
See Marriage . I. L. R. 25 Calc. 537

requirements of —

See Restitution of Conjugal Rights.

8 C. W. N. 705

L L. R. 31 Calc. 849

1. Validity of marriage — Requi-
sites for valid marriage. Under the Shiah as well
as the Sunni law, any connection between the sexes
which is not sanctioned by some relation founded
upon contract or upon slavery is denounced as
zina," or fornication. Both schools prohibit
sexual intercourse between a Mooslnab, i.e., a
Mahomedan woman and a man who is not of her
religion. According to the Shiah law, marriage
must in all cases be lawful, except when there is
error on the part of both or either of the parents.
HiMMUT Bahadoor V. Shahebzadi Begum

14 W. R. 125

Affirming on review s.c. Shahebzadi Begum v.
HiMMUT Bahadoor.

12 W. R. 512 : 4 B. L. R. A."C. 103

2. ■ Valid marriage,

essentials of — Sufficiency of evidence. In a crimi-
nal prosecution under s. 498, Indian Penal Code,
strict proof of marriage is necessarj'. ' It is essential
for a valid marriage according to the Mahomedan
law that the husband should be capable of giving a
valid consent, or should be represented by some one
w-ho can lawfully consent on his behalf, and that the
girl also, when a minor, should be represented by a
duly authorized person for the purpose of binding
lier. Sobrati v. Jungli . 2 C, W. N. 245

''• ~ ■ Nikah marriage.

The nikah form of marriage is well known and
established among Mahomedans. The issue of such

MAHOMEDAN LAW— MARRIAGE-

contd.

a marriage is legitimte by Mahomedan law
Moneerooddeen v. Ramdhun Rajeekur

18 W. R. Or. 26

4. Woman's right t

choose husband — Guardian — Marriage without con
sent of father. According to the doctrine of th(
Mussulman teacher, Abu Hanifa, a Mussulmaj
female, after arriving at the age of puberty withou
having been married by her father or guardiai
becomes legally emancipated from all guardianship
and can select a husband without reference to thi
wishes of the father or guardian ; but according t
the doctrine of Shafi, a virgin, whether before o
after puberty, cannot give herself in marriag
without t!ie consent of her father. After attainir:
puberty, a female of any one of the four sects c;
elect to belong to whichever of the other thre:
sects she pleases, and the legaUty of her subs(
quent acts wiU be governed by the tenets of tl
Imam wiiose follower she may have become,
girl whose parents and family are followers of tl
school of Shafi, and who has arrived at piibert.^
and has not been married or betrothed by h(i
father or guardian, can change her sect from thi
of Shafi to that of Hanifa, so as to render valr
a marriage subsequently entered into by h'i
without the consent of her father. Muhamm.''
Ibrahim v. Gulam Ahmed . . 1 Bom. 22

5. Marriage of min

— Assent of wife after puberty. A ceremony
marriage was performed between Mahomed;
minors in the fazolee (nominal) form ; the girl
father being dead, and the marriage being co
tracted by her paternal grandmother. Thereaft
the girl died, having attained the age of puber
without ever meeting or communicating with h|
husband, and without ever expressing in any wj|
assent to or dissent from the marriage : — HeM, tbt
by the law of the Shiah sect which governed tl
case, the marriage, since the assent of the girl aff
attaining puberty was not shown, was imperfe
from tlie want of the necessary ratification, a
could not create any rights or obligations. Tliou
by the law of the Sunnis the option of dissent mip
be declared by the girl as soon as puberty is de\(
loped, yet by the doctrine of the Shiahs the matlp
ought to be propounded to her, so that she m
advisedly give or withhold her assent. Mul
Jehan Sahiba v. Mahomed Ushkurree Kh
L. R. L A. Sup. Vol. 192 : 26 W. R.

6. Consent of

rents — Inequality of parties. Held, that uDj.
Mahomedan law the bride's father can set aside ip
marriage on the ground of inequality between w
parties to the marriage if it had taken place withcHi
his consent, the consent of the bride's mother m
brother notwithstanding ; and that the bride heraf
is legally competent to refuse herself to her husb^
so long as her dowry remains unpaid. MoHUMnB
Begum v. Bairam Khan . . 1 Agra P

7. Infant— Consen

Apostate father. The consent of the father v

( 7973 )

DIGEST OF CASES.

74 )

MAHOMEDAW LAW— MARRIAGE—

corUd.

held not necessary to the marriage of a Mahomedan
infant girl, he being an apostate from the Mahome-
dan faith ; this being so the consent of the mother
was sufficient. In the matter of Mahin Bibi

13 B. L. R. 160

8_ Consent of mother.

Where the nearest guardian of a minor was pre-
cluded from giving his consent to the marriage of
the minor, the marriage contracted by consent of
the mother of the minor was held to be valid by Ma-
homedan law. Kaloo v. Guribollah

13 B. L. R. 163 note : 10 W. R. 12

9_ Marriage with

living wife's sister — Legitimacy of children of such
virriage — Acknowledgment, effect of, on illegitimate
Liiildren. Under the Mahomedan law marriage
with the sister of a wife who is legally married is
void. The children of such marriage are illegiti-
■aate and cannot inherit. Shureeioonisa v. Khizu-
'oonisa Khanum, 3 S. D. A. Sel. Rep. 210, referred
;o. The doctrine of acknowledgment is not appli-
';able to a case in which the paternity of the child
s known, and it cannot therefore be called in to
egitimatize a child which is illegitimate by reason
if the unlawfulness of the marriage of its parents.
Muhammed Allahadad Khan v. Muhammad Ismail
Zhan, I. L. R. 10 All. 2S9, followed. Aizpnnissa
iHATOON V. Karimuxnissa Khatoon

I. Ii. R. 23 Calc. 130

10. Shiahs — Marri-

je between a Mahomedan and a Christian. A Maho-
ledan woman of the Shiali sect cannot contract a
alid marriage according to Maliomedan rites with a
Tiristian. Bakhshi Kishen Prasad v. Thakur
)is . . . I. L. R.119 All. 375

11. Muila form of

■'riage — Repudiation — Divorce. The mutta form

nrriage does not admit of repudiation under the
of the Shiah sect of Mahomedans. Quaere :
\ hether the form of divorce called zihar may be
xercised in the mutta form of marriage. In the
latter of the petition of Ltjddttn Sahiba. Luddtjn
vvniBA V. Kamar Kttdar

I. L. R. 8 Calc. 736 : 11 C. L. R. 237

12. Presumption of marriage —

ibitaiion — Presumption of legitimacy of off-
n//. By the Mahomedan law continual cohabita-
i and acknowledgment of parentage is presnmp-
evidence of marriage and legitimacy. Hida-
noLLAH V. Rai Jan Khanum 3 Moo. I. A. 295
c. Shtjms-oon-nissa Khanum v. Rai Jan
vNiTM . . . . 6 W. R. P. C. 52

13. • Cohahitation —

fiowledgment of wife and of legitimacy of child-
According to Mahomedan law, continued
Kii cohabitation, accompanied by a declaration
int the woman is the man's wife, and that the
lildren, the issue of the cohabitation, are his child-
n, or by conduct showing tliat he considers them
be so, is sufficient evidence from which to infer
arriage. Even where the cohabitation has

MAHOMEDAN L AW— M ARRIAGE—

contd-

been casual only, and there has been no
acknowledgment of the woman as his wife, or the
issue as his children, the fact of such cohabitation
raises a presumption of marriage, and that the
children are legitimate ; but in such a case the pre-
sumption may be rebutted. NAWAsrNNissA v.
FtJzooLooNis.SA. Nawabun v. Jumeerun

Marsh. 428

S.C. FUZLOONNISSA

14.

Nawabunnissa

2 Hay 479

Cohabitation.

According to Mahomedan law, cohabitation as hus-
band and wife will raise a presumption of a marriage
if the parties are Mahomedans, or persons between
whom a valid marriage can be celebrated. Mono-
war Khan v. Abdoollah Khan . 3 N. W. 177

15. ■ — Legitimacy, proof

of — Cohabitation. The mere residence of a woman
in the house of a Mahomedan as a menial servant,
and the circumstance that she had a son, do not
raise the presumption of marriage or legitimacy of
the son. Cohabitation means something more than
mere residence in the same house. It should be
shown that cohabitation continued, that children
were born, and that the woman was treated as a
wife, and lived as such, and not as a servant.
Kureemoonissa v. Attaoollah . 2 Agra 211

16. Legitimacy — Co-
habitation. If a child has been born to a father
of a mother where there has been not a more casual
concubinage, but a more permanent connection,
and where there is no insurmountable obstacle to a
marriage according to the ^lahomedan law. the pre-
sumption is in favour of such marriage having taken
place, and the mother and child are entitled to inhe-
rit. Shums-oon-nissa Khancm v. Rai Jan Kha-
num 6 W. R. P. C. 52

S.C. HiDAYUTOOLLAH V. RaI JaN KhAXCM.

3 Moo. I. A. 295

17. . Cohabitation —

Legitimacy. Though there is no evidence of the
celebration of any marriage ceremony, still the fact
of a woman having constantly lived as a married
woman with her husband, and the fact of her child-
ren having lived as legitimat« children with their
parents, make the case fall within the rule as to the
presumption of marriage and legitimacy laid down
by the Privy Council in Mahomed Banker Hossein
Khan v. Sfiurfoonissa Begum, g ^ioo. I. A. 136,
and by the High Court in Naivabunnissa v. FuzooU
oonissa. Marsh. 42s. Ashruffunnissa ;•. Azek-

MUN. B.VRODA KoOERY V. ASHRUFFCNNISSA

1 W. R. 17

Acknowledgment

of wife. The acknowledgment of a wife which the
Moliamedan law requires as proof of marriage
should be specific and definite. The mere fact of
a man keeping a woman within the purdah and
treating her to outward semblance as a wife, does
not neccssarih", in the absence of express declara-
tion and acknowledgment, constitute the factum

11 X 2

( 7975 )

DIGEST OF CASES.

( 7976 )

MAHOMEDAW" LAW— MAI^IlIAGE—
of marriage. Kadarnath Chuckerbtjtty v.
DoNZELLE . . . . 20 "W. K. 352

19. In a suit by A

for possession of property which belonged to her
uncle B, the defendants C and D each alleged
herself to be the wife of B, and each said that the
other was his concubine. C also set up a will in her
favour by B. C admitted that she had been once
B's concubine, but alleged that she had been sub-
sequently married to B. The evidence was con-
flicting, and the Courts below pronounced against
both the marriages and also against the will. C
alone appealed to the Privy Council. Held, that
lapse of time and propriety of conduct, and the en-
joyment of confidence, with powers of management
reposed in her, are not sufficient to raise the pre-
sumption that A was a lawful wife. Jariutool
Btjtgol v. Hosseinee Begum

10 W. R. P. C. 10

11 Moo. I. A. 194

20. — Celebration of

pregnancy and of birth of son. The celebration of
the seventh month of pregnancy, and the cele-
bration of the birth of the son, are sufficient to prove
the marriage and legitimacy of the son. Wise v,

SUNDULOOKISSA ChOWDHRANEE

7 W. R. P. C. 13
11 Moo. I. A. 177

21. ■ — Acknowledgment

of wife. An equivocal expression in a document exe-
cuted by a Mahomedan which might be applicable
to the ladies in respect to whom it is used, whether
they were wives or not, cannot be considered such
an express recognition of their being wives as to
establish their claims as such to a share in the estate
on his decease. Where a lady has cohabited with
a Mahomedan for years and has had a child by him
who has been openly acknowledged and treated by
him as his lawful son, although there may be no
evidence of the actual fact of marriage, the Court
is justified in presuming a marriage. Mahatala
Bibee v. Ahmed Haleemoozooman. Cttrreemtjn-
NissA Begum v. Ahmed Haleemoozooman

10 C. L. R. 293

MAHOMEDAN

contd.

LAW— MARRIAGE-

22. Re-marriage, pre-
sumption of legality of. In a suit by a Mahomedan
to compel the defendant to rejoin him as his wife, a
mere declaration by the defendant in a mortgage-
deed executed by her, that she was the wife of the
plaintiff, would not be evidence of the removal of
the legal impediment to the re-marriage created by
the divorce ; neither can a presumption be drawn
from the fact of the re-marriage that the impedi-
ment had been removed, and that the defendant
had again become lawful wife to the plaintiff after
re-marriage. Akhtaroonnissa v. Shariutoollah
Chowdhry .... 7 W. R. 268

23. _ Legitimacy — Pre-

sumption arising from relations between the parents.
Under the Mahomedan law the mere continuance
of cohabitation under circiimstances in which no
obstacle to marriage exists is not alone sufficient to

raise a presumption of marriage, but to raise such
presumption it is necessary that there should be nt
only a. continued cohabitation, but a continued ci
habitation under circumstances from which it cou'
reasonably be inferred that the cohabitation was
cohabitation as man and wife, and there must be
treatment tantamount to an acknowledgment of tl
fact of the marriage and the legitimacy of the chij.
ren. Khajah Hidayuf Oollah v. Rai Jan Khanui
3 Moo. I. A. 29', and Ashrufood Doiduh Ahm
Hossein Khan Bah'idur v. Hyder Hos.sein Kha
11 Moo. I. A. 94, referred to. Masit-un-nissa
Pathani (1904) . . I. L. R. 26 All. 2i

24. Marriage — Gh>\

kuf wife — Custom of exclusion from injieritanc-
Proof of custom — Eiiiry in Wajib-ul-arz — Mortgac:
by conditional scde — Mortgagee taking possesstl
without foreclosure proceedings — Trespa><er — si
for ejectment without redeeming — Regulation XV\
of ]S06. In a suit by a Muhammadan lady l
recover possession as her husband's heir, of 'k
immoveable property, the question arose whetli'
she was a ghair kuf wife and so excluded by custd
from inheritance as heir to hei- husband. The oik
reliable evidence of the custom was the vill?9
wajib-ul-ar-, which stated that " a married wf
belonging to a different caste (ghair kuj) and an ij-
married wife or their descendants would »
entitled to maintenance ' ' but not ' ' to any sharrp
of the property. The document bore the signatii,
amongst others, of the husband, and commeni|l
with words meaning "by agreement, " and so 1
not purport to be a record of immemorial custa,
and the rules of inheritance laid down in it v/je
based, not upon Mahomedan, but upon Hindu, iai:
Held, that in the absence of other evidence theenjy
in the ivajib-ul-arz wa? insufficient to establish !*
custom. A deed of 11th May, 1871, executediy
the husband in favour of a person through whom j:9-
defendant made title, hypothecated the village ]v
perty in suit in considei'ation of a loan of R2.i
stipulating that, in default of payment, the ti
action should be " a complete sale "in 20 yea:
on the death of the mortgagor, whichever first
curred. The deed recited and renewed a foi
deed made in 1866, between the same parties,
cribed as a " mortgage deed by conditional sa
and containing the same terms, except that
period for repayment was five years. The ir
gagor died in 1881, and the defendant, the n
tentative of the mortgagee, then took forcible
session without any foreclosure proceedings uiiLi
Regulation XVIII of 1806, the law thenin foje:
Held, that the deed of 1874 was a mortgage by n-
ditional sale. There was under it a right of ti-
closure on failure of the mortgagor to redeem wiui
the time limited by the terms of Regulation 5(11
of 1806, but in taking possession as he did thfe-
fendant was a mere trespasser and liable to ept-
ment in this suit. Hub Ali v. Wazir-un-nsa
(1900) . . . I. L. R.28 A11.96

s.c. 10 C. W. N. 78
L. R. 33L A.OT

( 7977 )

DIGEST OF CASES.

( 7978 )

LAW— MARRIAGE— . MAHOMEDAN LAW— MINOR.

4AH0MEDAW"

concld.

25. Sunnis — Marriage

rnught about by fraud — No consummation — Dower
-Liability of the husband to pay to the heirs of wife.
fhen consent to a marriage is obtained by fraud or
jrce, such marriage is invalid unless ratified, and
he husband is not liable to pay the dower of the
eceased wife to her heirs. Abdul Latif Khan v.
;uz Ahmad Khan (1909) . I. L. R. 31 All. 343

lAHOMEDAN LAW— MARZ-UL-MAUT.
L L. R. 30 Bom. 537

-•.-Divorce .,
•if: Marz-ul-maft.

Gift—Marz-id-

ivhat constitutes — Gift to
delivery of — Hibanama —

' — Death — Illness,
son — Possession
I r of Property Act {IV of 1882), ss. 123, 129.
Ltirtliug to the Mahomedan Law, three things are
icessary to constitute marz-ul-nmut or death-ill-
•ss, viz., (i) illness, (ii) expectation of fatal issue,
id (iii) certain physical incapacities, which indi-
te the degree of the illness. The second condition
nnot be presumed to exist from the existence o f
'e first and the third, as the incapacities indi-
'ted, with perhaps the single exception of the case
which a man cannot stand up to say his prayers,
e no infallible sign of death -illness. When a
'ilady is of long continuance and there is no im-
'jdiate apprehension of death, it is not a death-
'less ; so that a gift made by a sick person in such
•cumstances, if he is in the full possession of his
OSes, is not invalid. Ordinarily a malady should
' considered to be of long continuance, if it has
ited a year, but the limit of one year does not
QStitute a hard-and-fast rule. If, however, the
|iess increases to such an extent as to give rise to
I apprehension of death in the mind of the donor
'3 increase is death-illness. Mahammud Gulshere
^uinv. Miiriam Begam, I. L. B. 3 All. 731, and
lusaralBibiv. Golam Jaffar, 3 C. W. N. r>7, fol-
•ved. Labbi Beebee v. Bibun Beebee, 6AII.H.C.
% referred to. No actual delivery of possession is
|:es.9ary, when a parent makes a gift to a son,
;o is a minor. Ameeroonnissa Khatoon v.
adoonnissa Khatoon. lo B. L. R. (>1 : L. R. 2 1. A.
' followed. Fatima Bibee v. Ahmed Baksh (1904)
I. L. R. 31 Gale, 319

2- Divorce — Mar:-ul-

-Death-bed illness, tests for determining.

>ts to determine whether illness is to be re-

1 as death-bed illness (marz-ul-maut) under

nedan law are : — (i) Proximate danger of

-0 that there is a preponderance of khauf or

• ui-hension that at the given time death must be

;|re probable than life, (ii) There must be some

VTe« of subjective apprehension of death in the

'■id of the sick person, (iii) There must be ex-

•lial indicia, chief among which would be the

J|bility to attend to ordinary avocations. Sara-

» V. Rabiabai, I. L. R. 30 Bom. 537, followed.

J -HID V. Sherbanoo (1907)

I. L, R. 31 Bom. 264

Sue -Mahomedan Law — (Jtakdian.
MAHOMEDAN LAW— MORTGAGE.

Mortgage by widow — Power to

mortgage shares of minors — Mahomedan laio of sale.
In 1884 /, a ]\Iahomedan, died intestate, leaving a
widow, two sons, and two daughters. At the
time of his death he was the owner of a certain house
in Bombay. After his death his widow and his
eldest son E (without the consent of the other
children, who were minors) mortgaged the said
house to the defendant. In 1894 a younger son
and one of the daughters of / filed this suit, praying
that their shares in the house might be ascertained
and declared ; that the house should be sold, and
their shares in the proceeds handed over to them.
The defendant pleaded that the plaintiff's mother
and adult brother E had mortgaged the house to
him in 1891 as a security for a loan of R3,500
which they wanted to pay off debt» incurred in re-
building the house and to defray the marriage ex-
penses of E. He contended that the mortgage
was binding on the plaintifJs, having been made for
the benefit of the family, and that, if not, the plaint-
iffs were bound to pay him the money due to him
before claiming any share in the house: Held,
that the plaintiffs were entitled to their shares in
the said house free and discharged of the mortgage
executed to the defendant. The Mahomedan law
makes no provision with regard to mortgages, as
such transactions are, strictly speaking, unlawful
as they involve the payment of interest. As, how-
ever, mortgages do now exist among Mahomedans
they must be governed by the rules applicable to
sales. To authorize a sale by the guardian of a
Mahomedan minor, there must be an absolute neces-
sity for the sale, or else it must be for the benefit of
the minor. The money raised by the mortgage in
question was not raised for any purpose specially
authorised by Mahomedan law, and the purpose for
which it was raised was not for the benefit of the
minor. Consequently, the widow had no authority
to mortgage their shares. Hurbai »•. Hiraji
Byramji Shanja . I. L. R. 20 Bom. 116

MAHOMEDAN LAW— MOSQUE.

1. . Constitvition of musjid. Two

essential conditions to the constitution of a musjid
are requisite : first, that the site must be publicly
appropriated to the purpose of a musjid ; secondly,
that public prayer should be performed in it : — Held,
in a suit to establish a right to repair and endow a
mosque, that under the circumstances the condition
had not been fulfilled, and therefore the suit should
fail. Yakoob Ali v. Luchmun Dass

6 N. W. 80

2. Endowment or dedication of
mosque — Muhammadi or W'ahabi sect — Disturb-
ing a rdigiovs assniibly — Right to say " «?»m "
loudly during worship. According to the Maho-
medan law, a mosque cannot be dedicated or ap-
propriated exclusively to any particular school or
sect of Sunni Mahomedans. It is a place where all
Mahomedans are entitled to go and perform their

( 7979 J

DIGEST OF CASES.

MAHOMEDAN LAW— MOSQUE-concW.

devotions as of right, according to their conscience.
No one sect or portion of the Mahomedan com-
munity can restrain any other from the exercise of
this right. Members of the Muhammadi or Wahabi
sect are Mahomedans, and as such entitled to per-
form their devotions in a mosque, though they may
diiier from the majority of Sunni Mahomedans on
particular points. But any Mahomedan would
commit a criminal offence who, not in the bond fide
performance of his duties, but mala fide, for the
purpose of disturbing others engaged in their de-
votions, made any demonstration oral or otherwise
in a mosque, and disturbance was the result. — So
held by the Full Bench. Queen-Empress v. Ramzan,
I. L. R. 7 All. 461, referred to. Per Mahmood, J.
— According to the Mahomedan ecclesiastical law,
the word ' ' amin ' ' must be said and should be pro-
nounced at the end of the prayer ending with Sura-
i-Fateha ; but tl^re is no authority for holding that
it should be pronounced in a loud or in a low tone of
voice ; and (provided no disturbance of the public
peace is caused) a Mahomedan pronouncing the
word loudly, in the honest exercise of conscience,
commits no offence or civil wrong. Ata-tjllah v.
AziM-ULLAH . . . I. L. R. 12 All. 494

Public mosque — Right of

Mahomedans without distinction of sect to use such
mosque for the purposes of vmrship — Right to say
' ' amin ' ' loudkj durithg worship. Where a mosque
is a public mosque open to the use of all Mahomedans
without distinction of sect, a Mahomedan who,
in the bond fide exercise of his religious duties in
such mosque, pronounces the word " amin " in a
loud tone of voice, according to the tenets of his sect
does nothing which is contrary to the Mahomedan
ecclesiastical law or which is either an offence or civil
wrong, though he may by such conduct cause an
annoyance to his fellow-worshippers in the mosque.
But any person, Mahomedan or otherwise, who goes
into a mosque not bond fide for religious purpose but
maid fide to create a disturbance there and inter-
fere with the devotion of the ordinary frequenters
of the mosque, will render himself criminally liable.
ixsGTJ V. Ahmad -ULLAH . I. L. R. 13 All. 419

4. Dedication of mosque to

public "worship — Right to worship in mosque.
A mosque becomes consecrated for public worship
either by delivering to a mutwalli or on the declara-
tion of the wukif that he has constituted it into a
musjid, or on the performance of prayers therein.
The prayers of one individual alone are sufficient to
constitute a public mosque so long as it is accom-
panied by the azan (call to prayer). Any Maho-
medan, to whatever sect he may belong, is entitled
to offer his prayers according to his own ritual in
any mosque so long as he does not wilfully disturb
or annoy the other members of the congregation.
Non-conformity on matters of ritual does not affect
his right to do so. Fazl Karim v. Maula Baksh, I.
L. R. 18 Calc. 44s • L. R. 18 I. A. 59 ; Ataullah
V. Azanullah, I. L. R. 12 All. 494; and Q2ieen-
Empress V. Ramzan,!. L.R.7 All. 461, referred to.
Adam Sheik v. Isha Sheik . 1 C. W. M". 76

MAHOMEDAN LAW— PARTITION.

— Partition suit, decrt

in — Infants, non-parties, how far bound. Under tb
Mahomedan law, the minor heirs of a mother, m
parties to a partition suit, for her share in h(
father's estate and continued after her death \
her husband as her executor, and whose interes
were not legally protected at the time of partitio:
are clearly entitled to have the matter gone in'
again. But the division, as then made, should n<
be disturbed more than is absolutely necessai
properly to adjust the interest of the heirs. Ev(
if the portion of a dower that was prompt w
not claimed by the wife in her life-time, the sar
on her death, together with the deferred portic
thereof, becomes available to her estate, vests in hj
executors and passes on to her heirs. The execu'j
of a Mahomedan takes the whole estate of I,
testator by virtue of the Probate and Admin;,
tration Act and is a trustee for the entirety thereJ
Kurratulain Bahadur v. Nuzhatud-dowla Abl,
Hossein Khan, 9 C. W. N. 938 : s. c. I. L. R. 33 Cd
116, followed. Basir Ali v. Hafiz Nazab A
(1908) .... 13C. W.N.li;

MAHOMEDAN LAW— PARTNERSHIj

See Mahomedan Law — Joint PbopeetI'
I. L. R. 32 Mad. 2'J

MAHOMEDAN LAW— PRE-EMPTIOl

1. Right of Pre-emption —

(a) Generally .
(6) Co-sharers .
(c) Pre-emption in Towns ,
{d) Mortgages .
(e) Waiver of Right or Refusal
to purchase

2. Pre-emption as to portion of Pro

PERTY ....

3. Ceremonies ....

4. Miscellaneous Cases .

See Pre-emption.
See Mahomedan Law-

-Wajib-ul-abz

1. RIGHT OF PRE-EMPTION.

(ff) Generally.

1. Origin of right — Law or

tom — Cessation of right. The right of pre-emfi "
arises from a rule of law by which the owner om^
land is bound ; and it exists no longer if there C(pe3
to be an owner w ho is bound by the law e|ef
as a Mahomedan or by custom. Byjnath PEBS,li»
V. KopiLMON Singh . . . 24 W. B3&

2. Requisites for right— Em-

guishment of vendors right — Incomplete s^
Right of pre-emption. In a suit claiming a ^ii*
to pre-emption, whore it was found as a fact thal^"*
sale had not been completed, and that there hatd^ot

( 7981 )

DIGEST OF CA«ES.

7982 )

MAHOMEDAN LAW— PRE-EMPTION

— contd.

1. RIGHT OP PRE-EMPTION— conicZ.

(a) Generally — contd.

been cessation of the vendor's right, it was held that
whether under the ordinary principles which relate
to contracts of sale, or under the principles of Maho-
medan law, no right could arise in favour of the pre-
emptor. The privilege of shuffa refers to cases in
which the sale has been actually completed by the
extinction of the rights of the vendor. Ladun v.
BhyeoRam .... 8W. E. 255

— Extinguishment of

vendor's rigid. Under Mahomedan law, the right of
pre-emption does not arise until the seller's right of
property has been completely extinguished. SooN-
DUR KooER V. Lalla Rughoobtjr Dyal

10 W. R. 246

20 W. R. 216

Buksha Ali v. Tofee Ali
4.

Sales — Leases

perpetuity. Under the Mahomedan law, the right of
pre-emption applies to sales only, and cannot be
enforced with reference to leases in perpetuity like a
mokurari, which (however small the reserved rent)
are not sales and in which there is no ' ' milkyut ' '
or ownership on the part of the shuffa or pre-emp-
tion. Ram Golam Singh v. Nursing Sahoy

25 W. R. 43

Perpeinal lease

— Sale. Where a co-proprietor does not part with
his entire interest in land by an absolute sale, but
merely grants a lease of it, even though it be a
mourasi lease, the doctrine of pre-emption will
not apply. Moorooly Ram v. Huree Earn, 8 W. R.
106, and Ra7n Golam Singh v. Nursing Sahoy,
25 W. R. 43, followed. Dewanutulla v. Kazem
Molla . . . I. L. R. 15 Calc. 184

■. 1 6. ^ .^__ Bond fide sale.

t I There is no right of pre-emption where there has not

'. I been a real bond fide sale according to the Maho-

' ■ medan law. Mohno Bibee v. Juggttrnath Chow-

dhry 2W. R. 78

7. Sale — Transfer in

nature of gift. A transfer without money or other
consideration, and which is in fact a gift, is held not
to be a sale to which the right of pre-emption at-
taches. Ameer Ali v. Pe.4rux

W. R, 1864, 239

Gift of land without

''onsideration—Shanl-alp. No right of pre-emption
irises where land is assigned without consideration
as shankalp. Har Narain Pande v. Ram Prasad
MiSR . . . . I. L. R. 14 AIL 333

^. — Proof of right on

private sale — Auction sale. Held, that in a case of
private sale the right of pre-emption must be based
on usage or contract, and that an instance of pre-
•mption in an auction-sale is not sufficient. Bhae
KooNWAR V. Zahoor Ali . . 1 Agra 258

MAHOMEDAN LAW- PRE-EMPTION

— contd.

1. RIGHT OF PRE-EMPTION— con^ci.
(a) Generally — contd.

10. Heirofpre-emp-

tor — Non-survival of right. According to the
Mahomedan law applicable to the Sunni sect, if a
plaintiff in a suit for pre-emption has not obtained
his decree for pre-emption in his lifetime, the right
to sue does not survive to his heirs. Mihammad
HUSAIN V. NiAMAT-UN-NISSA . I. L. R. 20 All. 88

11.

Claim for pre-

emption based upon a transaction which was a good
sale under the M ahomedan law, but not under the
Transfer of Property Act (IV of ISS-J), s. -54 —
Bengal, N.-W. P. arid Assam Civil Courts Act
(XII of I8S7), s. 37. Where a Sunni Mahomedan
transferred certain immoveable property exceeding
in value RlOO, under such circumstances that the
price was paid and possession of the property de-
livered to the transferee, but no sale-deed was exe-
cuted ; on a suit for pre-emption based upon such
transfer being brought : Held by the Full Bench
(Banerji, J., dissenting), that the Mahomedan law
was to be applied in considering whether or not a
right of pre-emption arose, and that, inasmuch as
the transaction in question was a complete sale
under that law, a right of pre-emption did arise.
Case law prior and subsequent to Act IV of 1882
considered. Per Banerji, J. (contra) — In the
absence of fraud, no claim for pre-emption under the
Mahomedan law applicable to persons of the Hanifa
sect can arise in respect of the sale of immoveable
property of the value of one hundred rupees and
upwards, unless such sale has been effected accord-
ing to the provision of s. 54 of Act IV of 1882.
Begam v. Muhammad Yakub

I. L. R. 16 All. 344

12. Rights of third

persons having a claim to pre-emption where the
vendee is also a person ivho would have a similar
claim were the sale to a stranger. Under the Maho-
medan law, even when the buyer is himself a pre-
emptor, that is a person who would have the
right of pre-emption against an outsider, other
persons having a similar right of pre-emption are
entitled to claim pre-emption against the buyer ;
and, in such a case, the rights of the claimants to
pre-emption should be determined in the same way
in which they would have been determined had the
buyer acquired the propertj' by enforcing his right
of pre-emption against stranger, in the absence of
the other pre-cmptors, and the absentee pre-emp-
tors had appeared subsequently and claimed pre-
emption. Moheshet Lai v. Christian, 6' W. R. 250 ;
Teehi Dharee Singh v. :Slohur Singh, 7 11'. R. 260 ;
Lalla Noicbut Lall v. Lalla Jewan Lai, I. L. R. 4
Calc. S31, dissented from. In cases of pre-emption
to which the Mahomedan law applies the rules of
that law are to be administered in their entirety
where they are not inconsistent with the principles
of justice, equity and good conscience. Chundo v.
Hakeem Alimooddeen, 6 N. W. 2S, and Gobind

( 7983 )

DIGEST OF CASES.

( 7984 )

MAHOMEDAN LAW— PRE-EMPTION

— contl.

1. RIGHT OF PRE-EMPTION— confc?.

(a) Generally — contd.

Dayal v. Inyatullah, I. L. R. 7 All. 775, referred to.
A person entitled to a right of pre-emption is not
bound to claim pre-emption in respect of all the
sales which may be executed in regard to the pro-
perty, although every suit for pre-emption must in-
clude the whole of the property subject to pre-
emption conveyed bv one transfer. Kashi Nath v.
Mukkta Pramd, I. L. R. 6 All. 370, referred to.
Amie Hasan v. Rahim Bakhsh

I. L. R. 19 All. 466

13. Invalid sale —

2'ime v-Tien right of pre-e^nption arises. No right
of pre-emption arises upon a sale which, according
to Mahomedan law, is invalid, as, for instance, by
reason of uncertainty in the price or the time for
delivery of the thing sold ; but if such sale become
complete, as by the purchaser getting possession of
the thing sold, then the o^^^lership of the purchaser
becomes complete, and a right of pre-emption arises,
but neither ownership nor the pre-emptive right
relates back to the date of the contract of sale.
Begam v. Muhammad Yaquh, I. L. R. J6' All. 34 i,
referred to. Najm-tjn-nissa v. Ajaib Ali Khan
I. L. R. 22 Ali. 343

14 Exercise of right— iJe-saZe —

Claim after waiver upon incompleted sale. The
right of pre-emption, according to the Mahomedan
law, may be exercised upon a re-sale of the jjroperty,
after a previous sale which has fallen through, and
with respect to which no claim of pre-emption was
made. Busunt Koomaree v. Kali Pershad
Singh . . . Marsh. 11 : 1 Hay 32

' 15. , Property sold in

execution of decree — Right of judgment-debtor.
The right of pre-emption cannot be exercised by a
judgment-creditor in respect of the sale of property
in execution of his decree. Nuzmoodeen v. Kanye
Jha . . Marsh. 555 : 2 Hay 651

16. Sale by public

auction — Opportunity to hid. When property is
sold by public auction at a sale in execution of a
decree, and the neighbour or partner has the same
opportunity to bid for the property as other parties
present in Court, the law of pre-emption does not
apply. Abdul Jabel v. Khelat Chandra Ghose
1 B. L. R. A. C. 105 : 10 W. R. 165

17.

Repudiation of

18.

Exercise of pre-emption —

Effect of allowing prr-emption — Conditions of pre-
emption. Held, that the right of pre-emption, when
once allowed and exercised by the pre-emptor, can-
not be disputed at subsequent occasions of sale, and

LAW— PRE-EMPTION

sale by seller or buyer. As, according to Maho-
medan law, when either the seller or buyer repu-
diates the sale, there can be no sale, so neither can
there be any right of pre-emption in such a case.
Ojheoonissa Begum v. Rustom Ali

W. R. 1864, 219

MAHOMEDAN

— contd.

1. RIGHT OF PRE-EMPTION— coft^ci.

(a) Generally — contd.

that neither manhood, puberty, justice, or respect-
ability of character, are conditions of preemption
under the Mahomedan law. Punna v. Jugouh
Nath 1 Agra 236

Nor is indebtedness of the pre-emptor. Ram
Khelawan Rai v. Shiva Dass . 2 Agra 7fl

19. Evidence of right— ^wif tc

enforce right. In a suit to enforce a right of pre-
emption, where there is other evidence, and thf
Court can come to a distinct finding upon it, it is not
incumbent on the Court to put the purchaser upoit
his oath. Hunsraj Singh v. Rash Behake
Singh 7 W. R. 21]

Hunsraj Singh v. Choka Singh . 7 W. R. 48e

20. Decision on evi-
dence. Where evidence is gone into, the Court must
decide according to the view it takes of the evidenc(
any preference which may be given to the evidence
for the person claiming the right of pre-emptioE
being given only in the event of the evidence being
very evenly balanced. Hunsraj Singh v. Rasi
Beharee Singh . . . 7 W. R. 21]

21. Nature of pre

emption — Ground for allowing right. The righ'
of pre-emption is not matter of title to property, but
is rather a right to the benefit of a contract ; anc,
when a claim is advanced on such a right, it must b*
shown that defendant is bound to concede the claiiTi
either by law or by some custom to which the clasi
of which he is a member is subject on grounds o:
justice, equity, and good conscience. MoheshLali
V. Christian . . . 8 W. R. 44(

22. Nature of righ

— Onus probandi. The right of pre-emption is no
one which attaches to property, and the obligatioi
it implies may be limited to the residents of a dis
trict or to a family, or to any particular class oj
persons, it being for the claimant in each case t<j
show that it attaches to the defendant. AkhO'*
Ram Shahajee v. Ram Kant Roy 15 W. R. 221

23. Applicability of right-

I Nature and extension of right. The right to pre

emption is very special in its character, and i
founded on the supposed necessities of a Mahome
dan family arising out of their minute subdivision 0
ancestral property ; and as the result of its exercis
is generally adverse to public interest, it will not b
recognized by the High Court beyond the limits t
which those necessities have been judicially de
cided to extend. NusRUT Reza v. Umbul Khy
Bibee 8W. R. 30

24. ^ — Proof of ext«

ence of custom of pre-emption. Held, that a solitar
case or two is not sufficient to prove the custon
of pre-emption in a locality where the privilege is nc
binding upon the parties by positive law. Bbnai
SEE Doss V. Pool Chund . . 1 Agra 24

( 7985 )

DIGEST OF CASES.

( 7986 )

[AHOMBDAN

—contd.

LAW— PRE-EMPTION

1. RIGHT OF PRE-EMPTION-
(a) Generally — contd.

25,

evalence of custom. In Indcr Nam in Chowdhry
ildhomed Nazirooddeen, 1 IF. B. 234, the Court
ily meant to say that it could not be held upon
cisions that were in conflict with other decisions of
e same district that the custom of pre-emption
evailed there ; it did not say that when there were
cisions tending the same way, that that would
t be satisfactory proof of the fact. Kodrutool-
H V. MoHUREE Shaha . . 9 W. R. 537

26. Shiahs and Sun-

-Pre-emption claimed on ground of vicinage —
ndors and vendee Sunnis, -pre-emptor a Shiah.
^Id, that a Mahomedan of the Shiah sect could
t maintain a claim for pre-emption based on the
)und of vicinage under the Mahomedan law when
th the vendors and the vendee were Sunnis.
bind Dayal v. Inayat-ullah, I. L. R. 7 All. 77.5,
d Pir Bakhsh v. Sughra Bihi, All. Weekly Notes
i92) 31, referred to. Qtjrban Httsaix v. Chote
I. L. R. 22 All. 102

27.

Hindus — Local custom — Sale

MAHOMEDAN

— contd.

LAW— PRE-EMPTION

Decisions as to

a stranger. The right of pre-emption, when it '■
[Sts among Hindus, is a matter of contract or
;itom agreed to by the members of a village or
■nmunity. Such a custom is not properly j
bribed as attached to the land, and as soon as {
- 7 members of a Hindu community, who have !
eed to be governed by it, sell to any one who is a |
mger to the agreement, the land is no longer \
I 'ject to pre-emption. Hira v. Kalltt
I I. L. R. 7 All. 916 I

|i8. ^ Hindus — Usage

i'l custom. Unless a prescriptive usage and local '
I torn be clearly established, a Hindu defendant '
i lot bound by the Mahomedan law in a case in i
' ch a Mahomedan seeks to enforce his right of
)'-emption. Shekaj Ali Chowdry v. Ramjan
' EE . 8 W. R. 204 : 2 Ind. Jur. N. S. 249

I HERUL HoSSEIN f. LaLLA DeWKEE NfXDUN

W. R. 1864, 75

; — Hindu pur-

A claim for pre-emption under the Maho- [

law cannot be maintained against a Hindu \

1^ chaser. Moti Chand v. Mahomed Hossein

fu' ... .7 N. W. 147 I

iTrxno V. Alimooddeen . 6 N. W. 28 i

s.c. Agra F. B. Ed. 1874, 305

"• Hindu pur-

tier — Mahomedan vendor and co-sharer. Per
jj'COCK, C..T., and Kemp and Mitter, JJ. — A i
I du purchaser is not bound by the Mahomedan
' of pre-emption in favour of a Mahomedan co-
Tjtner, although he purchased from one of several
•liomedan co-parceners ; nor is he bound by the
'lomedan law of pre-emption on the ground of
t nage. A right of pre-emption in a Mahomedan

1. RIGHT OF PRE-EMPTION— coft^cZ.
(a) Generally — covAd.

does not depend on any defect of title on the part
of his Mahomedan co-partner to sell except subject
to the right of pre-emption, but upon a rule of
Mahomedan law, which is not binding on the Court
nor on any purchaser other than a Mahomedan.
Per Norman and Macpherson, J J. {dissentiintes).
Wherever a Mahomedan co-sharer or neighbour has
a right of pre-emption and his property'is sold by
his neighbour or co-sharer, also a Mussulman, his
right is not defeated by the mere fact that the
purchaser is a Hindu. Kudratulla v. Mahini
MonuN Saha. Sayama Kumar Roy r. Jan
Mahomed. Farman Khan v. Bharat Chandra
Shaha Chowdhry

4 B. L. R. F. B. 134 : 13 W. R. F. B. 21

31.

Hindu vendor-

Right to enforce pre-emption. Held (Stuart, C.J.,
and Pearson, J., dissenting), that where the
vendor is a Hindu, a suit to enforce a right of pre-
emption founded upon Mahomedan law is not
maintainable. Chundo v. Alim-ood-deen, 6 N. W.
2S, overruled. Purno Singh v. Hurry Churn
Surmah, 10 B. L. R. 117, followed. Dwarka Doss
v. Husain Baksh . . I. L. R. 1 All. 564

Hindu purchaser

— Mahomedan vendor and pre-emptor — Act VI of
1S71 (Bengal Civil Courts Act), s. 24 — " Religious
usage or institution" — "Parties.'" Held by the
Full Bench, that in a case of pre-emption, ^^■he^e the
pre-emptor and the vendor are Mahomedans and the
vendee a non-Mahomedan, the Mahomedan law is to
be applied to tlie matter, in advertence to the terms
of s. 21 of the Bengal Civil Courts Act (VI of 1S71).
Kudratulla v. Mahini Mohan Saha, 4 B. L. R.
F. B. 134, dissented from. Per Petheram, C.J.,
and Oldfield, J., that, by the provisions of s. 24 of
the Bengal Civil Courts Act, the Court was not bound
to administer the Mahomedan law in claims for pre-
emption ; but that, on grounds of equity, that law
had always been administered in respect of such
claims as between Mahomedans, and it would not be
equitable that persons who were not Mahomedans,
but who had dealt with Mahomedans in respect of
property, knowing the conditions and obligations
under which the property was held, should, merely
by reason that they were not themselves subject to
the Mahomedan law, be permitted to evade those
conditions and obligations. Per ^Mahmood, J. , that
by a liberal construction, the rule of the Mahomedan
law as to pre-emption is a *' religious usage or ins-
titution " within the meaning of s. 24 of the Bengal
Civil Courts Act, and, as such, is binding on the
Courts. Also Per Mahmood J., that the word
" parties, " as used in s. 24 of the Bengal Civil
Courts Act, does not mean the parties to an action,
but must be interpreted with reference to the incep-
tion of the right to be adjudicated upon. Also Per
Mahmood, ./. The right of pre-emption is not a

■

( 7987 )

DIGEST OF CASES.

( 7988 )

MAHOMEDAN LAW— PEE-EMPTIOW MAHOMEDAN LAW— PRE-EMPTICf

— contd. —contd.

1. RIGHT OF PRE-EMPTION— coji^d

(a) Generally — contd.

right of '' re-purchase " either from the vendor or
from the vendee, involving any new contract of sale ;
but it is simply a right of substitution, entitling the
pre-emptor, by reason of a legal incident to which
the sale itself was subject, to stand in the shoes of
the vendee in respect of all the rights and obliga-
tions arising from the sale under which he has de-
rived his title. The history and nature of the
right of pre-emption discussed by Mahmood, J.
Shum-sh-oolnissa v. Zohra Bibi, 6N. W. 2 ; Chundo
V. Alim-ood-deen, 6 N. W. 2S ; Ibrahim Saib v.
Muni Mir Uddin, 6 Mad. 26 ; Moti Chand v.
Mahomed Hussein Khan, 7 N. W. 147 ; and
Dwarka Das v. Husain Balchsh, I. L. R. 1 All. 564,
referred to. Gobind Dayal v. Inayattjllah.
Brij Mohan Lal v. Abul Hasan Khan

1. L. B. 7 All. 775

33.

Hindus — Custom

prevailing among Hindu — Obligation to fulfil con-
ditions. Where the custom of pre-emption pre-
vails among Hindus, it does not necessarily follow
that the person claiming pre-emption must fulfil all
the conditions of the Mahomedan law regarding pre-
emption. It should be determined whether the
custom is a custom under which it is incumbent
upon him to fulfil those conditions. Jai Kxtar v.
Heera Lal . . . 7 N". W. 1

34.

Hindu vendor

and purchaser — Mahomedan pre-emptor — " Talab-
i-ishtihad" — Invocation of witnesses. A Maho-
medan sued to enforce a right of pre-emption in res-
pect of a sale between Hindus founding such right
on local custom. The formality of " ishtihad," or
express invocation of witnesses, required by the
Mahomedan law of pre-emption, was not one of the
incidents of such custom : — Held, that the circum-
stance that the plaintiff was a Mahomedan did not
preclude him from claiming to enforce such right
against the defendants, who are Hindus ; and that
the formality of ' ' ishtihad ' ' not being one of the
incidents of such custom, it was not necessary that
the plaintiff should have observed that formality
as a condition precedent to the enforcement of
such right. Falcir Rawot v. Emam Baksh, B.L. R.
Sup. Vol. 35 ; Bhodo Mahomed v. Radha Churn
Bolia, IS W. R. 332, referred to. Kudratidla v.
Mahini Mohan Shaha, 4 B. L. R. F. B. 134 ; and
Dwarka Das v. Husain Bakhsh, I. L.R. 1 All. 564,
distinguished. Chowdhree Brij Lal v. Goor Sahai,
F. B. Rul. June-Dec. 1867, p. 129, and Jai Kuar v.
Heera Lal, 7 N. W. 1, followed. Zamir Husain
V. Datjlat Ram . . I. L. R. 5 All. 110

35.

Hindus — Pro-

vince of Behar. The custom of pre-emption has been
recognized among Hindus in the province of Behar.
Joy Koer v. Suroop Narain Thakoor

W. R. 1864, 259

I. RIGHT OF PRE-EMPTION— coTiti.

(a) Generally — contd.

36.

Hindus — Jo.

vince of Behar. A native of Lower Bengal seel 2
his fortune in Behar would not be bound by the le
of Mahomedan law of pre-emption if nothing v:e
shown to the contrary. Byjnath Pershad v. !)-
pn-MON Singh . . . 24 W. R. 5

37. Hindus — .o-

vi7ice of Behar. There is no judicial finding to i&
effect that the custom of pre-emption is recogD ?d
among the Hindus of the province of Behar. is
doubtful whether, even under Mahomedan la\5 le
owners of two adjacent lakhiraj estates, whollj n-
connected with one another, could either oftm
claim a right of pre-emption on the ground of vin-
age. No such right of pre-emption on the grcid
of the mere vicinage has been known to exist arrag
Hindus. Kantiram v. Woli Sahtj

2 B. L. B. A. C. 330 : 11 W. R. 51

38.

Hindus — \^o-

vince of Behar — Custom. A right or custom of 'e-
emption is recognized as prevailing among Hiius
in Behar and some other provinces of Western Iiia.
In districts where its existence has not been judi il-
ly noticed, the custom will be matter to be provl ;
such custom, when it exists, must be presumed be
founded on and co-extensive with the Mahom an
law upon that subject, unless the contrary be shin.
The Court may, as between Hindus, adminis : a
modification of that law as to the circumstices
under which the right may be claimed, wherej. is
shown that the custom in that respect does mjgo
the whole length of the Mahomedan law of pre-|ip-
tion ; but the assertion of the right by suit ust
always be preceded by an observance of the pnjmi-
nary forms prescribed in Mahomedan law. ISlR
Rawot v. Emambaksh

B. L. B. Sup. Vol. 35 : W. B.JP. B 43
Ramdulal Misser v. Jhctmack Lal Missei

8 B. L. B. 455 : 17 W. RiSS

Ramgutty Surma v. Kasi Chunder Surm.'

W. E. 1864317

Sheojuttun Roy v. Anwar Ali !

13 W.R.189

39. . Hindus-

tagong. Conflicting decisions of the suborn
Courts held not to prove that the custom '
right of pre-emption under the Mahomedan la
vails among the Hindus of Chittagong. I
Narain Chowdhry v. Mahomed Nazirood ■• .

1 W. B*i^

s.c. on review, where the Judges dirf^-
Nazirooddeen Khan v. Inder Narain '
dhry . . .5 W. I

40. — Hindus o,

rat. The existence of a local custom as to tli
of pre-emption among the Hindus of Guiaral

( 7989 )

DIGEST OF CASES.

( 7990 )

MAHOMEDAN" LAW— PHE-EMPTION ;

— coiitd.

1. RIGHT OF PRE-EMPTION— cor><«Z. . .;

(a) Geneealit— co»/<Z.

nized. Such a custom, where it exists, is regulated
by the rules and restrictions of the Mahomedan law.

GOEDHANDAS GiRDHARBHAI V. PrANKOR

6 Bom. A. C. 263

41. Hindus — Law

in Jessore. Qucere : Whether the law of p^'e-cmp-
tion extends to transactions as between Hindus in
Jessore. Madhub Chunder Nath Biswas v.
Tamee Bewah . . , 5 W. R. 279

42. Presidency of

..'.adras. The Mahomedan doctring of pre-emption
,18 not law in the Madras Presidency. Ibrahim
Saib v. Muni Mir Udin Saib . 6 Mad. 26

Nor in Sylhet. Jaiieelah Khatoon v. Pagul
Ram . . . 1 W. R. 251

Quaere : Whether in Tipperah. Dewan Munar
Ali v. Ashurooddeen Mahomed . 15 W. R. 270

43.

Non-Maliome-

ians—Pre-etnption, right of— Customs among Hindus
■ )/ Behar — Pre-emptor a stranger in the district — Sale.
l\Tiere the custom of pre-emption is judicially
loticed as prevailing in a certain local area, it does
;iotgovern persons, who though holding lands there-
n for the time being, are neither natives of, noc
lomiciled in, the district. Where therefore the
Jte-emptor was a Hindu co-sharer, neither a native
)f, nor domiciled in, Chapra, where the property
.vas situate, but an inhabitant of the district of
Balia in the United Provinces: — Held that,although
here may be a custom of pre-emption among the
Hindus of Behar, he had no right of pre-emption.
VeZd, further, that no right of pre-emption arises
•vhen the sale, upon the contingency of which the
"ight is claimed, is a fictitious transaction arranged
jio as to cheat the pre-emptor. Parsashth Nath
Cbwari v. Dhanai Ojha (1905)
I I. L. R. 32 Cale. 988

44.

Shafi-i-khalit-

■^asement— Owner of dominant tenement. Under the
vlahomedan law of pre-emption the owner of the
iominant tenement has in respect of a sale of the
servient tenement a right of pre-emption as a shafi-
•khalil, which is preferable to the right of one
jVho is merely a neighbour as regards the property
/old. Shaikh Karim Bakhsh v. Kumcr-vd-din,
lf74. All. H. C. 377, and Chand Khan v. Niarnat
Xli'in, 5 B. L. R. A. C. 296, referred ta. Karim
;'-PkiyoLalBose(1905) . I. L. R. 28 AH. 12

I ^5. Christians in Bhaugulpore.

,rhe custom of pre-emption, as applicable to Chris-
tians in Bhaugulpore, must be proved on the same
I'nnciple as has been applied to Hindus in Behar.

llOEESHEE LaLL V CHRISTIAN . 6 W. R. 250

46.

, — ; Europeans— /)/.s?r;c< of

'Qchar. The right of pre-emption arises from a
ule of law by which the owner of the land is

MAHOMEDAN LAW— PRE-EMPTION

— contd.

RIGHT OF PRE-EMPTION-
(a) Generally — concld.

contd.

bound. It is essential that the vendor should be
subject to the rule of law. Therefore, where the
vendor of certain land situate in Cachar was a
European, the Court held that there was no right
of pre-emption. Poorno Singh v. Hurrychurn
Surmah . 10 B. L. R. 117 : 18 W. R. 440

{b) Co-sharers.

47. Shafi-i-khaUt— A'a/wre of

pre-emptive right arising by common enjoyment
of rights appended to property. In order that two
persons may become shafi-i- khalits or persons
having a right of pre-emption in virtue of the
common enjoyment of, e.g., a road, it is necessary
that such road should be a private road and not a
thoroughfare. Among persons who are shafi-i-
khalits by reason of being sharers in a right of
way, all those who are sharers in such right of
Way have equal rights of pre-emption, although
one of them may be a contiguous neighbour.
Karim Bakhsh v. Khuda Bakhsh

L L. R. 16 All. 247

48. Right of tenant. The Maho-
medan law nowhere recognizes the right of pre-emp-
tion in favour of a mere tenant upon the lanfl.
GooMAN Singh v. Tripool Singh 8 W. R. 437

49. Right of share -holder- -

Effect of private partition on right of pre-rmptioii.
According to Mahomedan law, a shareholder in the
property sold has the first or strongest right of pre-
emption. A private partition, thouch not sanc-
tioned by official authoritj'', if full and final as among
the parties to it, will has^e the same effect as the
most formal partition on the right of pre-emption.
GoPAL Sahi v. Ojoodhea Per-shad 2 W. R. 47

50 Conditional sale — •

Rigkt of pre-emption among coparceners — Private
partition of pattidari estate. A and B had certain
proprietary rights in an eight annas patti of a
certain mehal. C and D had no rights in that patti,
but D had a small share in the remaining eight
annas patti. A private partition between the pattis
having taken place, C and D's brother lent to B two
sums of R200 and R199 by deeds of bai-bil-wufa,
dated the 12th and 21st June 1870. C and D sub-
sequently instituted foreclosure proceedings, and
on the 5th I\Iay 1SS4 were put into possession of
B's share in the first mentioned patti in execution
of a decree which they had obtained. On the 18th
April 188.5, A sued C and D to enforce his right of
pre-emption : Held, that, though the co-parcenary
could not be said to have ceased to exist, or those
who were co-parceners be said to have become
strangers to one another, yet there being a finding
that the pattis were separate, it was not necessary,
in order to establish .4's preferential right, that a
partition by metes and bounds should be shown to

( 7991 )

DIGEST OF CASES.

( 7992 )

MAHOMEDAN" LA-W— PRE-EMPTION

• — contd.

1. RIGHT OF PRE-EMPTION— ^onid

(6) Co-sharers — contd.
have taken place ; but that a private partition, if
full and final between the parties, would have the
same effect as the most formal partition on the right
of pre-emption, and that A's claim must therefore
succeed. Digambtjr Misser v. Ram Lat, Roy

I. L. R. 14 Calc. 761

51. Right of support

'' appendages of property " — Easem.ent — " Partici-
pator in appendages of property.'''' The I'ight
of shaffa (or pre-emption) belongs first to a partner
in the property sold ; secondly, to a participator in
its appendages ; and thirdly, to a neighbour. The
right of support is not an appsndage to propertv ; it
is merely mcluded in the incident of neighbourhood.
^1 's house adjoined the house in dispute towards the
east. jB's house adjoined the house in dispute
towards the south, and was separated from it only
by a wall. 5's house was subject to the easement
of support in favour of the house in dispute, ^'s
bouse was subject to the easement of receiving and
carrying off the rain water falling from the roof
of the disputed house : — Held, that A as owner of
the servient tenement was a ' ' participator in the
ajjpendages " of the house in dispute, and, as such,
had a preferential right to purchase the house in
dispute over B, who was a mere neighbour. Ran-
CHODDAS V. JuGALDAS . I. Ii. B. 24 Bom. 414

52.

Eight of co-

sharer in part of estate sold. When part of an
estate is sold in execution of a decree, a co-sharer in
the estate is a partner in the thing actually sold, and
according to Mahomedan law is entitled to the right
of pre-emption. Imamooddeen Sowdagur v.
Abdool Sobhan . . ■ . 5 W. W. 170

53.

Shiah

law —
Under

Case in which more than two partners,
Shiah law, the authorities leave the point doubtful
whether there can be any right of pre-emption in
respect of property where there are more than two
partners, but the Court held in accordance with the
practice of the Courts in wliich no claim for pre-
emption had ever been defeated on that ground.
Dami v. Ashooha Bebee . 2 H". W. 360

54. Property owned

by more than two co-sharers — Shiahs. The pre-
valent doctrine of the Mahomedan law go.verning
the Shiah sect is that no right of pre-emption exists
in the case of property owned by more than two co-
sharers. Daim v. Asoaha Bcebee, 2 N. W. 360,
and Tafazzul Husain v. Hadi Hasan, All. Weekly
-Notes [1886) 139, dissented from. Abbas Alt v.
Maya Ram . . I. L. R. 12 All. 229

55. Equality of

rights. Where there is a plurality of jjersons en-
titled to the privilege of pre-emption, the right of
all is equal without reference to the extent of their
shares in the property. Moharaj Singh v. Lalla
Bheechuk Lall . . 3 W. R. 71

MAHOMEDAN LAW— PRE-EMPTIOi;

— could.

1. RIGHT OF PRE-EMPTION— coft^ci.

(6) Co-sharers — contd.

56.

Claim by

sharer. Under the Sunni law, the right of pre-emp
tion may be exercised by one or more of a pluralit'
of co-sharers. Nundo Pershad Thakur v. Gopa
Thakctr . . I. L. R. 10 Calc. 1001

57. — Oivner of sepa

rated share of estate — Shafee Jchalit. The proprieto
of a divided one-anna share in a four-annas shar
of an estate is not entitled to a right of pre-emptioi
as a shafee khalit in the remaining three-anna share!
Quaere .- Whether, if there remained any adjoinir j
ground in which the community of interest st;
continued since the separation, he would bi
entitled in right of vicinage to pre-emption, thj
point not being allowed to be taken. Mahadei
Sixgh v. Zitannissa

7 B. L. R. 45 note : 11 W. R. 161

58.

Sharers in

pendages, and in body of estate. A sharer in th|
appendages has not an equal right to pre-emptioi
with a sharer in the body of the estate. Gola:
Alt Khan v. Agurjeet Roy . 17 W. R. 34

59. Undefined shar

In order to establish a right of pre-emption on th
part of a sharer, it is not necessary that the pre!
perty sold should be actually separated or definec
Gobind Chunder Goopto v. Raj Kishore Seim
14 W. R. 36

60. Khalit— Shar

— Partition, effect of, as to pre-emption. Th
word "khalit" is not improperly used in a plaint i
a pre-emption suit to designate a sharik or partner r
the substance of a thing ; and if it is not cle;
whether the plaintifE claimed pre-emption as khal
or sharik, it may be shown by express words or
may be inferred from the written statement whethi
the plaintiff claimed on the one or on the othi
ground. Where the intention of the co-proprieto
of an estate is to make a complete batwara of th
whole, but an inconsiderable part is by oversight (
accident left out of the division, that will not ha\
the effect of giving one co-proprietor a claim of pr
emption on the sale to a stranger by another cc
proprietor of his share or division of the estat
Semble : Where an integral portion of propert
as a wall, is left purposely joint and undivided, t
community of interest continues. Lala Prag Du
V. Band: Hossein . . 7 B. L. R. 4

s.c. Lalla Puriag Dutt v. Bundeh Hossein-
15 W. R. 25

and on review, BuNDEY Hossein v. Lalla Pubt
Dutt . . . . 16 W. R. 1^

61. Co-partners

Partners between whom there has been separatic
In a suit to recover by right of pre-emption,
the gfound that plaintiff was in the position of a c
partner in the property to be sold, notwithstandi

( 7993 )

DIGEST OF CASES.

^ 7994 )

MAHOMEDAN LAW— PRE-EMPTION

1. RIGHT OF PRE-EMPTION— con^d

(b) Co-SHAEEBS — contd.

a private separation having taken place between the
(hareholders, inasmuch as he was still liable for
irrears of Government revenue, and might still apply
or a public batwara : — Held, that, as plaintifE had
livided off his own share by regular metes and
lounds, and made himself in every respect indepen-
ient of his co-partners so far as lay in his power to
lose, he had by his own act deprived himself of any
dvantage which the law might have given him
inder different circumstances. Byj Nath Singh
iDoolyMatoon . . 11 W. R. 215

J2.

The

' sharik " cannot be restricted to cases in which
he parties enjoy the properties jointly. In the
ontemplation of Mahomedan law those who
ccupy other houses in the same mansion are
jgarded as partners together with the person the
lie of whose share in a house gives rise to the
uestion of pre-emption. Gukeeboollah Khan
Kebul Lall Mitter . 13 W. K. 124

Eight against

><parcener. No right of pre-emption can exist as
igainst a co-parcener. Moheshee Lall v. Chris-
[AN 6 W.R. 250

Co-parceners.

here is no ruie of Mahomedan law giving one co-
ircener any right of pre-emption where another
)-parcener is the purchaser. Lalla Nowbut
ALL V. Lalla Jewan Lall

I. L. R. 4 Calc. 831 : 2 C. L. R. 319

65. Joint purchase

' co-sharers and stranger — Pre-emptor not com-
dled to pre-empt share purchased by co-sharers.
a co-sharer associates a stranger with him in the
;irchase of a share, another co-sharer is entitled to
•e-empt the whole of the property sold, but it is
)t obligatory upon him to impeach the sale, so far
] the co-sharer vendee is concerned. Harjas v.
A5HYA . . . I. L. R. 7 All. 118

66. . Joint purchase

'-sharer and stranger, effect of — Specification

re in a deed of sale, effect of. Under the

I'f Mahomedan law, if a sharer in an estate

enates his interest to a co-sharer and stranger, the

lirchasing sharer, by joining an outsider in the

nchase, forfeits his right as a sharer, and another

ner has the right of pre-emption. Lalla

■t Lall V. Lalla Jewan Lnll, 1. L. R. 4 Calc.

'iistinguished. Held, also, that, in the case

J >int purchase made by two persons of shares

o villages in one of which one of the pur-

;:^ was already a sharer, at one entire con-

!tion, the specification in the deed of sale of

respective shares in the aggregate purchase

'Uld not affect the rule. Manna Singh v. Eama-

in Singh, I. L. R. 4 All. 262. Saligra^i Singh

Raqhubaedyal . I. L. R. 15 Calc. 224

MAHOMEDAN LAW— PRE-EMPTION

— contd.

1. RIGHT OF PRE-EMPTION— coTiii.

(b) Co-sharers — contd.

67.

Recorded co-

sharers — Benami purchase of shares — Sale by co-
sharer — Claim for pre-emption resisted by person
claiming to be co-sharer by virtue of benami trans-
action— Equitable estoppel. A secret purchase
benami of shares in a village does not constitute the
purchaser a co-sharer for the purposes of pre-emp-
tion either under the Mahomedan law or under tho
provisions of a wajib-ul-urz, so as to enable him
upon the strength of the interest so acquired to
defeat an otherwise unquestionable pre-emptive
right preferred by a duly recorded shareholder
who had no notice, direct or constructive, of his
title, and asserted immediately upon his purchase
of a share, for the first time, in his tnie character.
Ramcoomar Koondoo v. Macqii.een, L. R. I. A. Sup.
Vol. 49, referred to. Bent Shankar Shelhat
V. Mahpal Bahadur Singh I. L. R. 9 All. 480

Wajib-ul-arz —

Pre-emptor out of possession of his share — His own
share lost by him pending appeal. The plaintiff in-
stituted this suit to enforce her right of pre-emption
in respect of a share in a village of which she alleged
herself to be a co-sharer with the vendors. The
defendants to the suit were the vendors, the
vendees, and others who were rival claimants for
pre-emption, in the share sold. The rival pre-emp-
tors alone defended the action on the ground,
among others, that the plaintiff was not in posses-
sion of her own share in the village out of which she
alleged that her right to claim pre-emption arose.
The Court of first instance dismissed her suit. On
appeal the District Judge in effect dismissed her
claim as against the defendants who were the rival
pre-emptors, but gave the plaintiff a right to obtain
the share if the other pre-emptors did not avail
themselves of the decree which they had obtained in
their action. On the 12th of January 1S87 plaintiff's
second appeal was admitted, and on the 20th Janu-
ary plaintiff's share, in the village out of which her
claim to pre-emption in respect of the share sold
arose, was sold in execution of a decree in another
suit. The respondent contended that, as since the
appeal the share out of which plaintiff alleged that
her right arose was sold, she could not got any decree
now in her favour : — Held, that this Court as a Court
of Appeal have only cot to see what was the decree
which the Court of first instance should have passed,
and if the Court of first instance had wrongly dis-
missed the claim, the plaintiff cannot be prejudiced
by her share having been subsequently sold in
execution in another suit ; such a sale could not
have affected her right to maintain the decree,
if she had obtained a decree in her favour in the
Court of first instance, either on review or on
appeal, nor could it have been made the ground
of appeal. Further, plaintiff being out of posses-
sion of her share at the time 'she instituted the^

( 7905 )

DIGEST OF CASES.

( 7996

MAHOMED AW LAW-PRE-EMPTION

— contd.

1. RIGHT OF PRE-EMPTION— co/iifZ.

(&) Co-shakers — contd.

suit for pre-emption was immaterial ; the Court
should have ascertained whether the plaintiff was at
the date of suit entitled in law to the share out of
which her right of pre-emption was alleged to have
arisen. Held by Mahmood, J., that the passage
from Hamilton's Hedaya by Grady, p. 562, means
that in the pre-emptive tenement the pre-emptor
should have a vested ownership and not a mere
expectancy of inheritance or a reversionary or any
kind of contingent right, or any interest falling
short of full ownership. Sakixa Bibi v. Amiran
I. li. R. 10 All. 472

69. Shareholder or

neighbour. The Mahomedan law of pre-emption
was never intended to apply to a case in which
the purchaser is not a stranger, but one who is
already either a shareholder or a neighbour.
Teeka Dhakee Singh v. Mohur Singh

7 W. R. 260

70.

Co-parcener or

neighbour. A co-parcener has a higher right of pre-
emption than a neighbour, and there is nothing in
the Mahomedan law to prevent his enforcing his
right when the purchaser happens to be a neigh-
bour. Hur Dyal Singh v. Heera Lall

16 W. R. 107

71.

Preferential right

— Extent oj shares. One of two joint sharers has
no preferential title to the right of pre-emption in
his capacity of neighbour, but is equally entitled
with his co-sharer to the privilege of pre-emption,
without regard to the extent of their shares.
Roshun Mahomed v. Mahomed Kuleem

7 W. R. 150

72.

Vicinage— i?(>7t< of partner to

pre-emption on sale of villages or large estates.
According to the Mahomedan law, a partner has a
right of pre-emption in villages or large estates.
But a neighbour cannot claim such a right on the
ground of vicinage. In the matter of the petition of
Chatternath Jha alias Jhingha Jha. Mahomed

HOSSEIN V. MOHSIN AlI

6 B, L. R. 41 : 14 W. R. F. B. 1

Mahomed Hossein v. Mohsun Ali

14 W. R. 266

73. Sale of share in

zamindari — Vicinage. A right of pre-emption at-
taches to the sale of the share of the zamindari in
the case of a co-sharer, though it may not attach on
the ground of vicinage. Akhoy Ram Shahajee
V. Ram Kant Roy . . 15 W. R. 223

74.

Adjacent plots

of land. Qucere : Whether, as between owners of
adjacent plots of land, pre-emption can exist by
Tight of vicinage. Nirput Muhtoon v. Deep
KooNWAB . . . . 8 "W. R. 2

MAHOMEDAN LAW— PRE-EMPTIO:

— conPl.

1. RIGHT OF PRE-EMPTION— conici.

(h) Co-sharers — contd.

75.

Separate meha

Where an estate, originally one, has been divid
into two separate mehals, no right of pre-empti-i
under the Mahomdan law will subsist on behalf
one of such mehals in respect of the other merely 'i
reason of vicinage: nor will any right of pre-emptM
arise from the fact that certain appurtenances to t:
original mehal are still enjoyed in common by t'>
owners of the separated mehals. Abdul Rah;
Khan v. Kharag Singh . I. L. R. 15 All. l(j

76. — -_ Equal right f

pre-emption in two persons. Where two pers i
have by vicinage an equal right of pre-emption, iji
property is to be decreed to them in halves, onpf-
ment of their respective moieties of the purch
money. Khem Kurun v. Seeta Ram

2 N. W. !

77.

Ownersh.
according)

Mere possession gives no ' ' huk shuffa'
Mahomedan law : there must be ownership (mile )
in the contiguous land, the onus being on i9
plaintiff to prove ownership. Beharee Ram^
Shoobhudra ... 9 W. R.' 45

78.

House on h

Separate ownership. The owner of land is not j
titled by Mahomedan law to pre-emption of a ho'e
standing thereon where his property in the lam's
wholly separate and distinct from the propertjn
the house which belongs to another person v,h
whom the owner has nothing in common. Pt-
SHADi Lal v. Irshad Ali . 2 N. W. Ip

79 Large estat^r-

Small 7ioldings — Mutual convenience. A claim o
rights of pre-emption I on the ground of viciDtie
alone will not lie in the case of large estates, but qy
when either houses or small holdings of land mie
parties such near neighbours as to give a claimfn
the ground of convenience and mutual senje.
Ejnash Kooer v. Amjud Ally . 2 W. R. '1

80. Large estaf

Partners. The Mahomedan law of pre-emptioi
the score of vicinage applies only to houses or
plots of land, and not to large estates, or to a '
laased on i:)artnership when it is in proof tli.
separation of the estate has been effected. Cb
dhry Joogtjl Kishoke Singh v. Poocha SingI
8 W. R. p

81. Parcels of nd

— Entire estate. The right of pre-emption onhe
ground of vicinage is limited to parcels of land id
houses, and does not extend to the purchase oiin
entire estate, even though it be entirely surrouiod
by the lands of the would-be pre-emptor. Ai^
Azim v. Khondkar Hamed Ali

2 B. L. R. A. C. 63 : 10 W. R.p«

82. Large or small esta?8.

The right of a shareholder to pre-emption ejsts

( 7997 )

DIGEST OF CASES.

( 7998 )

[AHOMEDAN" LAW— PRE-EMPTION

—contL

1 RIGHT OF PRE-EIVIPTION— con<(Z.

(b) Co-SHAEERS — contd,

lether the parcel of land sold, and in respect of
licb the claim is made, be Jarge or small. Jehan-
K Baksh v. Lala Bhikaei Lall

6 B. Ij. B. 42 note

Jahaxqeee Buksh v. Bhickaeee Lall

11 W. R. 71

S.C, affirmed on review. In the matter of the
tition of Jehaxgie Baksh

7 B. L. R. 24 : 11 W. R. 480

Mahatab Singh v. Ramtahal Misser

6 B. L. R. 43 note : 10 W. R. 314

63.

Agricultural estates — Part-

's. Presumption extends to agricultural estates
d is not merely confined to urban piopeities or
all plots. Where there are several properties to
ich a common appurtenance in the shape of an
divided plot of land, a few trees and tanks is
ached, partners in the appurtenance can claim
)-emption in respect of the projierties. Kaeim
KSH V. Kamr-ud-deen Ahmad . 6 N. W. 377

34. Pre-emption —

idh vendor — Hindu purchaser — Right of iSunni
ikarer to pre-emj^t in the case of a Shiah vendor and
.\ndu purchasers — Sunni law — Talab-i-ishtish-lmd
■Sanies of all the purchasers not specified at the time.
:.e law applicable to a suit for pre-emption by a
inni co-iharer against a Shiah vendor and Hindu
■ rchasers is the Sunni law. Poorno Singh v.
- rrycharan Surmah, 10 B. L. R. 117 ; Dwarka Dass
Eusain Baklish, I. L. R. 1 All. 5b4 ; Abbas Alt
'; Maya Ram, I. L. R. 12 All. 229 ; Quarban
\sain V. Chote, I. L. R. 22 All. lOz, referred to.
1 particular formula is necessary for the as-
i!;ioa of the pre-emjjtor's claim on the occasion
ahe pei-formance of the preliminary formalities,
iiong as the claim is unequivocally made. Where,
irefore, the vakil of the pre-emptor proclaimed
iihe presence of two of the purchasers and at the
«'pty doors of the other three that " J. S. and
<'er8 have purchased," without specifying the
Jjnes of the others : Held, that there was nothing
t' ivocal in the formulation of the claim and that
t' talab-i-i.-.htish-had was duly preformed in this
' ""t. Jog Deb Singh v. Mahomed Afzal
. I. L. R. 32 Caie. 982
S.C. 9 C.W.N. 826

Sale to a co-

ujter institution of a suit for pre-emption —
. '■ of Property Act (I V of 1882), s. 52— Lis pen-
After the tiling of a suit for pre-emption, but
' .service of summons on the defendants, the
lant vendee re-sold the property claimed to a
I vendee, who had equal rights as a co-sharer
he plamtiS. Tliis second vendee was added
<,'ourt as a party defendant, but the plaint was
iiended and the plaintili did not seek to pre-
- t-he Bale made in his favour : — Held, that the

MAHOMEDAN LAW— PRE-EMPTION

— contd.

1. RIGHT OF PRE-EMPTION— con<rf.

(6) Co-SUAEERS — concld.

doctrine of lis pendens applied, and the plaintiff was
entitled to a decree. Faiyaz Husain Khan \. Prag
Narain, 1. L. R. 29 All. 339, referred to. Manpal
v. Sahib Ram, I. L. R. 27 All. 544, distinguished.
Ghasitey v. Gobind Das (1908)

I. L. R. 30 All. 467

86. Owners of upper and lower

floors of house — Pre-emption among Hindus.
Wherever the custom of pre-emption exists in towns
or amongst Hindus, the presumption is, until the
contrary be shown, that the custom is based upon
the Mahomedan law of pre-emption. Therefore,
where a person owns the lower floor of a house, and
another person owns the upper floor, with a right of
way to it through the house of a third party, and
sells the upper floor with its right of way, the
owTier of the house in which the way lies has under
such custom a right of pre-emption of the upper
floor, preferable to the right of the o^^•ner of the
lower floor. Ganeshi Lall v. Lttchmax Dass

5 N. W. 31

87. Dwelling-house — Separate

ownership of site of house. Where a dwelling-house
was sold as a house to be inhabited as it stood with
the same right of occupation as the vendor had en-
joyed, but without the ownership of the site : —
Held, that a right of pre-emption under ^lahome-
dan law attached to such house. Zahur v. Xuk Ali

I. L. R. 2 All. 99

88. Land frora which irriga-
tion is received — Owner of such land— Preferential
right. Under the jNIahomedan law, the owner of the
land, through which the land in respect of which a
right of pre-emption is claimed receives irrigation,
has a preferential right to purchase rather than a
mere neighbour. Chand Khan v. Xaimat Khan

3 B. L. R. A. C. 296 : 12 W. R. 162

(d) Mortgages.

89. Accrual of right — Foreclosure

of equity of redemption. In the case of a mortgage,
the right of pre-emption does not arise until the
equity of redemption is finally foreclosed. (Bay-
LEY, J., dissenting.) Guedial !Mundar v. Tek-

NAEAYAN SiNGH

B. L. R. Sup. Vol. 166 ; 2 W. R. 215

90. Right of suU to

enforce right of pre-emption — Foreclosure — Pos-
session by mortgagee. On the foreclosure of a mort-
gage, after the expiry of the year of grace, but before
a decree for possession had been obtained by the
mortgagee, a suit to enforce the right of pre-emption
in respect of the property mortgaged is maintainable.
Taea Ktjnwar 1-. ]NL\ngei Meeah

6 B. L. R. App. 114

( 7999 )

DIGEST OF CASES.

( 8000 )

MAHOMEDAW LAW— PRE-EMPTION

— cont'l.

1. RIGHT OF PRE-EMPTION— co/i/cZ.
(d) Mortgages — concld.
91. Mortgage with-
out actual transfer of possession. In a suit for a
declaration of plaintiff's right of pre-emption in a
property which had been originally mortgaged, but
which, owing to a subsequent arrangement, had not
passed from the mortgagor to the mortgagee : —
Held, that, as the ownership was still with the
mortgagor, who could redeem his property within
a stipulated period, no right of pre-emption had
arisen from the Mahomedan law. Bhowanee
Pershad v. Pfrshunno Singh . 11 "W. R. 282

92. Mortgage hij a

successful pre-emptor of the pre-empted property to a
stranger — Pre-emptive rights of decree holder not
thereby destroyed. The plaintiff in a pre-emiJtion
suit having obtained a decree for possession, in order
to provide the means of paying the pre-emptive
price, mortgaged the property, the subject of the
suit, to a stranger : — Held., that whatever rights the
mortgage to a stranger might or might not give rise
to in the future, the successful plaintiff did not by
that transaction forfeit the fruits of her decree.
Bajjo V. Lalman, I. L. E. 5 All. ISO, distinguished.
Ram Sahai v. Gaya, I. L. R. 7 All. 107, referred to.
Bela Bibi v. Akbar Ali (1901)

I. L. R. 24 All. 119

93.

Pre-emption-

Talab- i- m owash ihat and talab-i- istishad — Unreaso n-
able delay, a question of fact — Action for pre-emption
Claimants co-sharers as well as mortgagees — Deposit
of mortgage money in Court by purchaser — With-
drawal by claimants — Waiver of claim. The right of
pre-emption must be exercised and claims necessary
to give effect to it must be made with the utmost
promptitude, and any unreasonable and unneces-
sary delay is to be construed as an election not to
pre-empt. Whether there has been such delay is a
question to be determined upon the facts of each
particular case. The plaintiff in this case, claimed
the right to pre-empt by reason of their having
previously acquired a share in the property. They
had also obtained the transfer of a zurpeshgi mort-
gage binding the share, the sale of which was the
occasion of the present suit. In the course of the
suit the purchaser, defendant, deposited the mort-
gage amount in Court and the same was withdra-mi
by the plaintiff : — Held, that until a decree for pre-
emption was made the purchaser owned the land,
and had a right to redeem ; and that the" taking out
of the money by the plaintiffs, as mortgagees, was no
recognition of anything more than that, and was
quite consistent with their claim to pre-empt.
Baijxath Gaexka v. Ramdhari Chowdhry (1908)
I.. L. R. 35 Cale. 402
s.c. 12 C. W. N. 419
li. R. 35 1. A. 35

(e) Waiver of Right or Refusal to Purchase.

94, Subsequent re-eonveyance

by purchaser to vendor— i/^eci of, as against

MAHOMEDAN LAW— PRE-EMPTICr

— contd.

1. RIGHT OF PRE-EMPTION— core^d.
(e) Waiver of Right or Refusal to Purchas-
contd.

right of pre-emptor. Where one of two neighbcra
has sold his land to a stranger, and the other ne i-
hour has thereupon claimed a right of pre-empt i.
no subsequent dissolution of the contract affects le
right of the pre-emptor which has once accrued 4
been duly asserted. Bhadu Mahomed v. Ra: a
Churx Bolia . . . 4 B. L. R. A. C. 9
s.c. Bhodo Mahomed v. Radha CHURy B<u
13W. R.:2

95. Surrender of right of 13.

emption before sale. Where an offer of sale is
made to pre-emptor, and he refused to avail a-
self of it, and consented to a sale to a strangei—
Held, that after a sale to a stranger he could nolet
up his right of pre-emption. Braja KiS)E
Surma v. Kirti Chandra Surma 1

7 B. L. R. 19 : 15 W. R. ! 7

But see In, the matter of the petition of Jehaiie
Baksh . . . . 7 B. L. R. 24 rte

s.c. Jahangeer Buksh v. Lalla Bhikhajb
Lall . . . 11 W. R. JO

where, however, the point was not directly decid,
there being no sufficient proof of the refusato
purchase, and no evidence of consent to selto
another.

96. Refusal to purchase win
property offered for sale — Subsequent su: to
enforce right — Estoppel. A Mahomedan offerento
sell his share of certain property to a partner, d,
on the refusal of the latter to purchase the aae,
sold it to a stranger : — Held, that the partner cjd
not sue to enforce his right after the sale. T( al

KOMHAR V. AUCHHI

9 B. L. R. 253 : 18 W. R.pi

Sheo Tuhul Singh v. Ram Kooer

W. R. 1864|U

Kooldeep Singh v. Ram Deen Singh

24 W.R.p8

97. Right of refusal on saljto

stranger — Co-sharers paying rent separate'y'i A
and B, Mahomedan co -sharers of a talukh, '• ' '
separate agreements to pay rent to the zam
each shareholder being liable for his own shart- ■•
rent merely. Subject to this arrangement, the' '■■■'
continued ijmali : — Held, that on a sale by ] of
part of his ^are to a stranger, who was also a IjiO-
medan, B was entitled to pre-emption. KoRO'in
V. Amir Ali . . . . 3 C. L. B..m

98. Right of refusal— Op«-

tional right — Co-sharers — Minor, ^\^lere a fju-
dition for pre-emption contained in a record-of-rjlits
was intended to take effect at the time of a salenia
its language implied that the co-sharers in ^ose
favour it was made were to be persons who werel^ni-
petent at that time to make a binding contraf t*
accept or refuse an offer, no right of pre-em|iott

( 8001 )

DIGFiST OF CASES.

( 8002

MAHOMEDAN LAW— PRE-EMPTION

— contd.

1. RIGHT OF PRE-EMPTION— con/(i.

(e) Waiver of Right or Refusal to Pcrchase —
contd.

accrued under the condition to a co-sharer who was
a minor at the time of a sale and unrepresented by
any person competent to conclude a binding con-
tract on his behalf, whether it was assumed that
the condition arose out of special contract or
general usage. Raja Ram v. Bansi

I. li. R. 1 All. 207

99. ''^Stranger'''' —

" Sale'' — Assignment by way of dower — Assign-
^nent in lieu of dower — Debt. The heirs of a Maho-
•edan have no legal interest or share in his property
.0 long as he is alive, and cannot therefore be re-
tarded as in any sense co-sharers or co-parceners in
lis property, so as to be entitled to claim the right of
)re-emption in case of a sale by him of his property:
-Held, therefore, where a husband sold his share of
n undivided estate to his wife, that although one
f his heirs, she had not on that account a right of
're-emption in respect of such sale. A husband
ransferred certain property to his wife in con-
I deration of a certain sum which was due by him
) her as dower : Held, that such transfer was a

sale " within the meaning of the Mahomedan
.w of pre-emption, and gave rise to the right of
re-emption. Pearee Begum v. HusJimut Ali, 1 N.
J.S. D. A. ilSCi) 475, followed. The meaning
'!E *' stranger" and ' ' sale,' ' as used in the Maho-
'ledan law of pre-emption, explained. Fida Ali v.

(uzaffer Ali . . I. L. R. 5 All. 65

100.

Refusal to purchase with-

mt absolute relinquishment or surrender,
lie right of pre-emption may be claimed after a

le notwithstanding there has been a refusal to
(irchase before lhe>ale where there has been no

'Solute surrender or relinquishment of the right,
id such refusal has been made simply in conse-

.ence of a dispute as to the actual price of the

,)perty. Abadi Begam v. Inam Begam

I. L. R. 1 All. 521

lOl. — Acquiescence in sale — Notice

, "pre-emptor of projected sale — Purchase-tnonei)

i^lnaclion of pre-emptor. The plaintiff in a suit to

"orce the right of pre-emption alleged that the true

I'Tation for the sale was less than the amount

I in the sale-deed- It was found that he made

lumunication to the vendor after he became

that a sale was being negotiated, nor did he

X known to him that, while he stood upon his

iiptive right, he declined to pay the price stated

deed, because it was not the consideration

I on between the vendor and the vendee : —

that the plaintiff was bound, instead of

:Hng silent, to communicate to the vendor

e was prepared to purchase at the price within

-unable time, and that not having done so he

be taken to have countenanced the completion

-"■J bargain with the vendee, and to have

MAHOMEDAN

— contd.

LAW— PRE BMPTION

1. RIGHT OF PRE-EMPTION— concZrf.

(e) Waiver of Right or Refusal to Purchase —
concld.

waived his right of pre-emption. Bahaeron- Sixgh
V. Lanman- . . . I. L. R. 7 All. 23

102. Relinquishment

of right. According to the Mahomedan law, if a
pre-emptor enters into a comprise witji the vendee,
or allows himself to take any benefit from him in
respect of the property which is the subject of pre-
emption, he by so doing is taken to have acquiesced
in the sale and to have relinquished his pre-emptive
right. In a suit to enforce the right of pre-emption
founded on the Mahomedan law, it appeared that the
purchasers, by an agreement made with the plaint-
iffs on the same date as the sale in respect of which
the suit was brought, agreed to sell the property to
the plaintiffs any time within a year, and if the latter
paid the price and purchased the property for them-
selves : — Held, that by the very fact of their taking
the agreement, the plaintiffs had relinquished their
right of pre-emption, and were precluded from en-
forcing it. Habib-ux-nissa v. Barkat Ali

I. L. R. 8A11. 275

103 Omission to give

notice of demand ivithin reasonable time, effect of —
Co-sharers, j.re-emption between. The wajib-ul-
urz of a village provided that a co-sharer wishing to
sell his share must give notice to the other co-
sharers, and that first a nearer co-sharer and next
a more distant co-sharer should have a right of pre-
emption. Where, such notice having been given,
the co-sharer receiving notice took no action thereon
within a reasonable time: — Held, that, as his in-
action would lead the vendor to conclude that he
would not interfere or become a purchaser, it was
equivalent to declining to purchase. Muhasimad
Wilayat Ali Khan v. Abdul Rab

L L. R. 11 AU. 108

VOL. III.

104. Effect of offer

by pre-emptor to purchase from vendee. Held, that
where a pre-emptor continues to assert his pre-emp-
tive right, and on the strength of that right and i n his
character of pre-emptor offers to take the property
from the purchaser by paying him the sale price,
without resorting to, and with a view to avoid
litigation, he cannot be said to have acquiesced in
the sale and waived his right of pre-emption.
Muhammad Xasiruddin v. Abul Ha-san, I. L. li. IH
All. 300, followed. Habibunnissa v. Abdul Rahim,
I. L. R. S AU. 275, referred to. Muh.oimad Yrxus
Khax v. Muhammad Yusuf I. L. R. 19 All. 334

Muhammad Nasirudddt v. Abul Has.ot

I. L. R. 16 All. 300

2. PRE-EMPTION AS TO PORTION OF
PROPERTY.

1. Assertion of right as to por-
tion of property — Ground for refusing whole.
In the absence of sufficient ground for refusing to

11 Y

DIGEST OF CASES.

( 8004 )

MAHOMEDAN LAW— PRE-EMPTION

— contd.

2. PRE-EMPTION AS TO PORTION OF PRO-
PERTY—cowici.

take the whole of the lands to be sold, the right
of pre-emption cannot be asserted as to a portion
only. Cazee Ali c. Musseeutoollah

2 W. R. 285

2. Circumstances dis-

entitling party to enforce the rigid. The right of
pre-emption cannot ordinarily be claimed in re-
spect of only a portion of any property conveyed
away in a single sale ; but this rule holds good only
when the property sold is one entire property.
Where a single sale embraces two distinct properties
in respect of one of which a right of pre-emption
resides in any person who has not a similar right in
regard to the other : — Held, that it would be
equally unreasonable to rule that he could claim
both, and that he could claim neither — the only
reasonable rule being that he could claim as much
as he could take by a decree if it were separately

sold. SURDHAREE LaLL V. LaBOO MoODEE

25 W. R. 500

3. Suit to enforce

the right in respect of a part of the property sold.
Every suit for pre-emption mast include the whole
of the property subject to the plaintiff's pre-emp-
tion, conveyed hy one bargain of sale to one stranger ;
and a suit by a plaintiS pre-emptor, which does
not include A^ithin its scope the whole of such pre-
emptional property, is unmaintainable as being
inconsistent with tlie nature and essence of the pre-
emptive right. Izzalulla v. Bhikari Mollah, 6
B. L. B. 38o: 14 W. R. 469, and Baisum Thakooranee
V. Ram Singh, N. W, S. D. A. (1863), 394, followed.
Oomur Khan v. Moorad Khan, N. W. S. D. A.
(1S65) 173, and Saliq Ram v. Debi Prasad,
7 N. W. 38, distinguished. Cazee Ali v. Musseeat
Woollah, - W. R. 2yj ; Ahdoo' Gufoor v. Nur Sana
1 B. L. R. A. C. 7S : 10 W. R. Ill ; Sheodval Ram
V. Bhyroo Ram, N. W. 8. D. A. (1860) 53;
Guneshee Lai v. Zaraut Ali, 2 N. W. 343 : and
Bhawni Prasad v. Damru, I. L. R. 5 All. 197,
referred to. Durga Prasad v. Munsi

I. L. R. 6 All. 423

4. . Suit by pr<-

emptor not entitled to claim the whole of the pro-
perty sold — Frame of suit. Held, that, where a pre-
emptor by reason of the claim' of other persons en-
titled equally with himself to claim pre-emption is
only entitled to a certain portion of the property in
respect of which he claims pre-emption and not to
the whole of it, he is not bound to frame bis suit as
a suit for the whole of the property sold, but only
for so much as he would be entitled to having regard
to the claims of the other pre-emptors. A7nir Hasan
V. Rahim Bakhsh, I. L. R. 19 All. 466, and Durga
Prasad v. Munsi, I. L. R. H All. 4? 3, referred to.
Kashi Nath v. Mukhta Prasad, I. L. R. 6 All. 310,
and Hulasi v. Sheo Prasad, I. L. R. 6 All. 455,
distinguished. Abdullah v. Amanat-ullah

I. li. R. 21 All. 292

LAW— PRE-EMPTION

MAHOMED AN

- — contd.

2. PRE-EMPTION AS TO PORTION OF PRQ.
PERTY— con id.

5. Suit to enforce

pre-emption to^porlion of property sold. Under a
deed of sale, the vendor conveyed to the purchaser
five lots of land. In a suit by a third party to en-
force a right of pre-emption is respect of one out of
tho five plot? : — fidd. that he couli divide the
bargain and sue on the ground of pre-emption for
a portion only of the property covered by the
deed of sale. Izzat-ulla v. Bhikari Molla

6 B. L. R. 386 : 14 W. R. 46^

Raghunandan Singh v. Majbuth Singh

6 B. L. R. 387 note : 10 W. R. 37^

6. Sale of propen.

of which shares belonged to minors. The propert;:
of several co-sharers, some of whom were minors
was sold to a single purchaser under a deed of sal
which contained a covenant by the vendors wh'
professed to act on behalf of themselves and th
minors that they would compensate the vendee fo'
any loss he might incur should the minors whei
t!iey came of age not ratify the sale. .4 sued to en
force her right of pre-emption in respect of th
lands sold. The lower Appellate Court was c
opinion that A could not enforce her claim of prt
emption in respect of the share of the minors
and on the Court's suggestion the plaint wc-
amended, so as to ask for enforcement of her claii
in respect only of the shares of the vendors of fu
age •. — Held, that A was bound to claim her ligl
against all the shares and could not enforce it
respect of some onlv. Abdool Gufoor v. Xr
banu . 1 B. L. R. A. C. 78 : 10 W. R. i:

Co-sharer— Mo

zahs distinct from one another. The plainti
I who were shareholders in a pai'ticular mouzah, su
j to enforce a claim to a right of pre-emption upon
I sale under a kobala for a particular sum of money '
! another shareholder of a share in the mouzah, alo
I with other properties with which the plaintiffs h
1 no concern, to a third person who was not a sha
I holder: — i/eW. that, as the plaintiffs were entit

to claim a right of pre-emption in respect of :
I mouzah only and that mouzah was distinct fi

the other properties sold, the suit was mainta

able. Rowshun Koer v. Ram Dihal Roy
1 13 C. L. B.

8. Rir)al suit

j Suit to enforce the right in respect of a part of
\ property sold. The prior institution of a suit
rival pre-emptors in no way entitles a pre-empto '
depart from the general rule of pre-emption
suing for a portion onlv of the property sold. A'f
Nathv. M%ikta Prasad, I. L. R. 6 All. 3:0, refei
to. Hulasi v. Sheo Prasad I. L. R. 6 All. '

9. Wa)ih-ul-<^

Rival suits — Decree not to allow either clam
to pre-empt part only of the properly overtr
he has a pre-emptive right.

Where two rival

{ 8005 )

DIGEST OF CASES.

( 8006 )

5IAH0MEDAN LAW— PRE-EMPTION

— contd.

. PRE-EMPTION AS TO PORTION OF PRO-
PERTY—cowfcZ.

mptors, each having an equal right to claim pre-

mption under a wajib-ul-arz, bring suits to enforce

leir rights, in the absence of anything in the wajib-

1-arz to the contrary, the rule of Mahomedan law

lUst be observed, and however the property may be

ivided by the decree of the Court between the sue -

•ssful pre-emptors, the Court must take care that

le whole share must be purchased by both pre-

nptors, or on the default of one by the other, or

lat neither of them should obtain any interest in

le property in respect of which the suits were

ought. In two rival suits for pre-emption the

urt gave one claimant a decree in respect of a

I'ee-annas share, and the other a decree in respect

a two-annas six pies share of certain property,

I eh decree being conditional on payment of the

ice within thirty days. The Court further directed

at in case of either prc-emptor making default of

yment within the thirty days, the other should be

titled to pre-empt his share on payment of the

ice thereof within fifteen days, of such default.

)th pre-emptors made default of payment within

'> thirty days. One of them, within the further

. I nod of fifteen days, paid into Court the price of

e share decreed in favour of the other and claimed

pre-empt such share : — Held (affirming the judg-

int of Mahmood, J.), that the claim was inadmis-

ile, since to allow it would have the effect of

:Eeating the rule of law that a pre-emptor must buy

5 whole, and not part only, of the property which

-| is entitled to pre-empt. Akjun Singh v. Sar-

|RAZ Singh . . . T. L. R. 10 AIL 182

LO. Pre-emptor dis-

• itled by laches from claiminq 'portion of pro-
iy — Disqualification in claim for whole pro-
iy. The principle of the rule that a pre-emptor
jist claim the whole of the property included in the
i;3-transaction, and for which one price was paid,
:|lie is entitled to claim it, and cannot obtain a
"hree for part only of such property, applies to
i| case of a pre-emptor who claims the whole,
1|: who is at the time disentitled by his own act or
llbes to maintain the claim as to a part. Such a
I qualification prevents the pre-emptor from main-
1 ling his suit for any portion of the property
i luded in the sale. Where therefore a pre-empt-
twas disqualified from claiming a portion of the
1 petty sold, by not having made a prompt
( land in accordance mth the Mahomedan law in
r)ectof such portion: — Held, that he was there-
t prevented from maintaining his suit for another
Pition claimed under the provi.-ions of the wajib-
niiz of a village, though he wa-i willing to pay
*j full purchase -money and to leave in the
▼iee's hands the portion as to which he

* disqualified. Muhammad Wil.\yat Ali
*jiN 1-. Abdul Rab . I. L. R. 11 All. 108

3- _ - Wajib-ul-arz —

"[emptor disentitled by his own conduct to pre-
*"■ part of the proiKrty sold — Pre-emptor not

LAW— PRE-EMPTION

MAHOMEDAN

— contd.

2. PRE-EMPTION AS TO PORTION OF PRO-
PERTY—concZd

entitled to pre-empt any portion thereof. Where a
pre-emptor sued for possession by right of pre-emp-
tion of certain property sold by one and the same
sale-deed, claiming as to one portion of the property
sold under the Mahomedan law and as to another
under the wajib-ul-arz, and it was found that he had
by his own acts or omissions disentitled himself
from claiming that portion of the property to which
the Mahomedan law applied: lifhl. that the pre-
emptor was not entitled to pre-emption in respect
of any portion of the property covered by the said
sale-deed. Muhammad Wilcvinl Ah Khun v. Abdul
Rab, I. L. R. 11 All. lOS, followed. Mujib-Ullah
V. Umed Bibi . . I. L. R. 21 AIL 119

3. CEREMONIES.

1. Necessity of proof of per-
formance of preliminary ceremonies. In the
case of pre-emption, strict proof is necessary of the
performance of the preliminaries. Hosseinee
Khanum v. Laixun . . W. R. 1864, 117

Jadu Singh v. Rajkumar 4 B. L, R. A. C.

171

IssuR Chander Shaha v. Nisar Hossein

W. R. 1864, 351

Prokas Singh v. Jogeswar Singh

2 B. L. R. A. C. 12

2. The right of

pre-emption being a right weak in its nature, where
such right is claimed under Mahomedan law, it
should not be enforced except upon strict com-
pliance with aU the formalities which are prescribed
by that law. Ali Muhajimad v. Taj Muhammad
L L. R. 1 All. 283

3. Omission to per-
form ceremonies — Evidence of rdinquishment of
right — Negligence. There are certain ceremonies
to be performed in order to lay a foundation for the
establishment in a Court of law of a right of this
kind, when it is menaced ; and though, on the one
hand, the efi'ect of the omission to prove performance
of these ceremonies is not cancelled by pleas ad-
vanced in later petitions put in during the progreaa
of a case, just as, on the other, that omission is not
of necessity evidence of a relinquishment of the
right, yet, in this case, in which defendant had
exhibited strange haste in some stages of the negoti-
ations, with the apparent purpose of forestalling
plaintifE in his rights; but plaintifi's proceedings
had been characterized with great negligence, if
nothing worse ; it was held that the plaintiff was not
entitled to a decree. Surdhabee Lallu. Laboo
Moodee 25 W. R. 500

4. -^ Acts or omissions by pre-

emptor's authorized agent, effect of. It is
a general rule of pre-emption that any act or omis-
sion on the part of a duly authorized agent or
manager of the pre-emptor has the same effect upon
pre-emption as if such act or omission had beea

11 Y 2

( 8007 )

DIGEST OF CASES.

( 8008 )

MAHOMEDAN LAW— PRE-EMPTION MAHOMEDAN LAW— PRE-EMPTIOK

—contd. j —contd.

3. CEREMONIES— coMicZ. 3. CEREMONIES— coriirf.

made by the pre-emptor himself. Haritiar Dat
V. Sheo Prasad . . I. L. R. 7 All. 41

5. Performance of ceremonies

by agent or manager. Under Mahomedan law,
the legal forma to be observed under that law by
a person claiming a right of pre-emption may be
observed on behalf of such person by an agent or
manager of such person. Abadi Begam v. Inam
Beoam . . . . I. L. R. 1 All. 521

6. Performr.n-e of

ceremonies by agent — Afflrnuition by tvitnesses —
Bepudiation of sale. According to Mahomedan
law, the affirmation by witnesses need not be made
by the claimant of the right of pre-emption in
person, but may be made by a duly constituted
agent. Ojheoonissa Begam v. Rustum Ali

W. R. 1864, 219

7. Talab-i m.a'wasabat — Inten-
tion to assert right — Talab-i-ishtahad — Demand in
presence of witnesses. To entitle a person, otherwise
favourably situated, to the right of pre-emption, two
conditions must be fulfilled : first (talab-i-mawasa-
bat), on receiving information of the sale he must
immediately declare his intention to assert his right ;
and, secondly (talab-i-ishtahad), he must, as soon
after as possible, make the demand of the vendor or
purchaser, or upon the premises, and in the presence
of witnesses. Jhotee Singh v. Komtjl Roy

10 W. R. 119

In order to sus-

tain a claim for pre-emption in Mahomedan law, it is
essential that the ceremony of talab-i-mawasabat
should be properly performed- Jarfan KLhan v.
Jabbar Meah . .XL. R. 10 Caie. 383

Necessity of

mediate claim. Under Mahomedanlaw, the " talab-
i-mawasabat," or immediate claimto the right of pre-
emption, should be made as soon as the fact of the
sale is known to the claimant, otherwise the right is
lost ; and it was consequently IxM, that the plaintiff,
having failed to make the " talab-i-mawasabat "
until twelve hours after the fact of the sale became
known to him, had lost his right of pre-emption.
Ali Muhammad v. Taj Muhammad

I. L. R. 1 All. 283

10. Delay i7i making

claim. On hearing of a sale, the pre-emptor must
immediately make his demand called talab-i-mawa-
sabat. ^^^lere a pre-emptor, on hearing of the sale
of a property to which he hada right of pre-emption,
went to the property in dispute and there declared
his right as pre-emptor : — Held, that such delay was
fatal to his claim. Raji Charan v. Narbir
Mahto>- 4 B. Ii. R. A. C. 216 : 13 W. R. 259

11. Omission to

give notice of claim until after lapse of long time —
Lorig deferred demand. A sale of property, to
wliich the Mahomedan law of pre-emption was
applicable, took place in October 1884, The plaint-

iff pre-emptor and his agent became aware of the sali
shortly after it took place, and many months prioi
to July 1885. He did not allege that he had giver
notice that he claimed to exercise his right of pre
emption before July 1885. It was found as a fac
that no such notice was given : Held, that, evei
if such notice was given, it was too late, and was no
a prompt demand in accordance with the Mahome
dan law. Muhammad Wilayat Ali Khan v
Abdul Rab . . I. L. R. 11 All. lOf

12. Want of ftoc

of required ceremonies — Wajih-ul-arz — Cvstom-^
Immediate and confirmatory demands. The waji'^
I ul-arz of a village gave a right of pre-emptic'
I " according to the usage of the country." In a sui
j for pre-emption there was no evidence to show whai
] in fact, was the usage prevailing in the district ii
1 regard to pre-emption. There was no evidence tha
t,he plaintiff had satisfied the requirements of t^
Mahomedan law as to immediate and confirmator'
demands, or that there was any custom which all
j solved him from compliance with those requir'
i ments, or that he was at any time willing to pay tt
actual contract price : Held, that in the absence i
j evidence of any special custom different from, (
not co-extensive with, the Mahomedan law li
pre-emption, that law must be applied to the casj
j and that, under the circumstances above state'
j the suit failed and must be dismissed. Fal
Rawot V. Etnambakhsh, B. L. B. Sup. Vol. -l
Choudhry Brij Lall v. Gour Sahai, Agra F. B. 7:"
and Jai Kuar v. Hira Lai, 7 N. W. 1 , referred t
Ram Prasad v. Abdul KaJbim

L L. R. 9 All. 5:

13. Time taken

ascertain if information of sale is correct. Accot
ing to the Mahomedan law, the mere fact of the pi
emptor taking a short time before performance
the talab-i-mawasabat for ascertaining whether t
information conveyed to him was correct or n
does not invalidate his right. The Mahomedan !:
allows a short time for reflection before performai
of the first demand- Ajvijad HosEHf v. Khas
Sex Sahu

4 B. L R. A. C. 203 : 13 W. B. 2

14.

Making cln

standing or sitting. The act of a claimant ris
from his seat to claim his right of pre-empt
instead of claiming it as he sat, is not a delay sr
cient to entail a forfeiture of his right. Maha
Singh v. Lallah Bhuchook Lall

W. R. 1864, 2

15.

Witns-

necessity of. Although, according to Mahomei
law books, it is not necessary, in respect to the ta.
i-mawasabat, or first preliminary required to est
lish a right of pre-emption, that witnesses shn
hear the exclamation it involves, yet it does
follow that, as matter of evidence. Courts of law
bound to decree a suit to establish such a ri.

( 8009

DIGEST OF CASES.

( 8010 )

BIAHOMEDAIf LAW— PRE-EMPTION

— corUd.

3. CEREMONIES— coTi^rZ.

limply on the deposition of the plaintiff. Abdool
lossEiN BLhan v. Gobind Chandra Shaha

11 W. R. 404

16. Talab-i-ishtahad— iV^e<;ess%

■f proof of performance. To establish a claim to pre-
emption under the Mahomedanlawit is not enough
0 prove that the ceremony of talab-i-mawasabat
?as performed ; it is also necessary to prove the
alab-i-ishtahad. Narbhase Sikgh v. Luchmeb

S^ABAIN POOREE . . 11 W. R. 307

17.

Necessity of

nding as to performance. The " talab-i-ishtahad "
= a preliminary act as essential as the " talab-i-
. dwasabat " to secure to the claimant the r ght
if enforcing pre-emption. There should always
lierefore be a distinct finding as to whether it was
iroperly made or not. Razeeooddeen v. Zeenut
5IBEE . . 8W. R. 463

18. Necessity of

roof of performance. Under the Mahomedan law, it
'i essential to the right of pre-emption to prove the
erformance of the talab-i-ishtahad. Bhowanee
)rTT V. LoKHoo Singh . W. R. 1864, 60

19.

Mode of form

[i ceremony — Performance — Hindus. To the due
.erformance of the ceremony of talab-i-ishtahad, it
l> not necessary that any particular form of words
iiould be employed. Ramdular Misser v. Jhu-
ACK Lal Misser

8 B. L. R. 455 : 17 W. R. 265

20. Mode or form

' ceremony — Talab-i-mawasahat. To establish a
ight of pre-emption, it is necessary to show that the
.;remony of talab-i-ishtahad has been observed,
'hich requires the pre-emptor to make an afifirma-
|.on not necessarily in the precise words of the
;)rm given in the Hedaya, but in substance to the
|5ect of declaring, before witnesses, that the
jirlier preliminary^ — -viz., ta!ab-i-mawasabat — has
jlready been performed. Girdharee Singh v.
I OJUN Singh . . . 24W. R. 462

Requisites for

■remony — Invocation of witnesses. To the cere-
\ of ishtahad or talab-i-istahad, it is essential
tiiere should be an express invocation of wit-
-cs. Prokas Singh v Gugeswar Singh

2 B. L. R. A. C. 12

22. Requisites for

\remony — Declaration and invocation of tcitnesses.
jccording to the Mahomedan law, strict adherence
I' the rules for the performance of the talab-i-
jlitahad is specially necessary. In performing the
j.lab-i-ishtahad, the pre-emptor must clearly
pclare his right and invoke witnesses. He must
liclare that ' ' he has a right of pre-emption to
'Uch he has laid claim and that he still claims it,"
id invokes witnesses " to bear witness therefore
the fact." Jadu Singh v. Rajkumar

4 B. L. R. A. C. 171 : 13 "W. R. 177

MAHOMEDAN LAW— PRE-EMPTION
— contd.

3. CEREMONIES— conid.

Dayamooll.\h v. Kirtee Chunder Surmah

18 W. R. 530

23.

Requisites for

ceremony — Invocation of witnesses to demand.
According to the Mahomedan law, it is essential to
the performance of the talab-i-ishtahad that third
persons should be formally called upon, either in the
presence of the purchaser or on the land : or, if the
ve.idor is in possession, in the presence ol vendor,
to bear witness to the demand. Golakram Deb
V. Brindaban Deb

6 B. L. R. 165 : 14 W. R. 265

24. Performance

in presence of purcliaser. The ceremony of talab-i-
ishtahad, or affirmation before witnesses, may, at the
option of the pre-emptor, be performed in the pre-
sence of the purchaser only, though he has not yet
obtained possession. Janger Mahomed v. Maho-
med Arjad

I. L. R. 5 Gale. 509 : 5 C. L. R. 370

25. — - — Performance in

presence of person in possession, vendor or pur-
chaser. To establish the right of pre-emption, the
talab-i-ishtahad, or affirmation before witnesses,
must be performed in the presence of the person
in possession of the lands, whether it be the vendor
or the purchaser. Chamroo Pasban v. Pchlwan
Roy 16 W. R. 3

Omission

invoke witnesses — Talab-i-mawasabat — Ceremonies
of " immediate demand," and " demand tvith invo-
cation." A person claiming a right of pre-emption
made the talab-i-mawasabat in the presence of wit-
nesses, but when doing so was neither at the place ,
the subject of the right of pre-emption, nor was he
in the presence of the vendor or vendee : Held, on
second appeal, that the lower Appellate Court
having found that the talab-i-ishtahad was invalid
on the ground that there was no evidence of a
demand with invocation of witnesses having been
made, the right of pre-emption could not be
claimed. jADtmtJNDrN Singh v. DrLPrr Singh
I. L. R. 10 Gale. 581

27.

Mode of invoca-

tion of ivitnesses. In a suit to establish the right
of pre-emption, where the witnesses said tiiat on the
refusal of the vendor the pre-emptor had nominated
them witnesses, the lower Courts were held to have
been justified in their inference that he had compUed
with the exigencv of the Mahomedan law. Sh.\m
Lall S.\hoo v. Afscroonisa . 22 W. R. 184
28. Invocation of wit-
nesses where talab-i-matva-'sabat is made in presence
of witnesses — Performance of talab-i-mawasabat and
ishtahad — Witnesses. Where the first talab (talab-
i-mawasabat) is made in the presence of witnesses,
and the witnesses are then called to bear testimony
to the fact, it is not necessary to invoke witnesses on
the occasion of the second talab (talab-i-ishtahad).

( 8011 )

DIGEST OF CASES.

( 8012

MAHOMEDAN LAW— PBE-EMPTION

— conld.

3. CEREMONIES— con<d.

Wazid Ali Khan v. Hunmnan Prasad, 4 B. L. B. A.
C. 139, and Guretboolah Khan v. Kehid Loll Mitter,
13 W. B. 125, cited. Koeomali v. Amir Alt

3 C. Ii. R. 166

29.

Invocation of

witnesses — Claim where there are several co-sharers
— Tender of price for the land claimed^One ont of
several co-sharers claiming a right to pre-emftion.
A person seeking pre-emption declared his right
thereto when he first heard of the sale, in the pre-
sence of witnesses ; and as soon as was possible on
the same day, in the presence of the same witnesses,
demanded his right from the vendors and the pur-
chasers : — Held, that it was unnecessary that he
should again state, when making his demand, or
that his witnesses should testify to the fact that
he had declared his right as soon as he heard of the
sale. The principle of the law of pre-emption is
that the pre-emptor should assert his right as soon
as he has heard of the sale ; that he should demard
his right from the vendor or purchaser, or on the
ground, in the presence of witnesses ; and this
assertion and demand may be simultaneous ; but
if they are not, the pre-emptor, when he makes
the demand, is required to make a declaration
before witnesses that he"'asserted his right when
first he heard of the sale. Nundo Pershad
Thakur v. Gopal Thakur

I. L. R. 10 Calc. 1008

30.

'I Ceremonies of

" immediate demand " and " demand with invoca-
tion.'' When a person claiming a right of pre-emp-
tion has performed the talab-i-mawasabat in tlie
presence of witnesses, but not in the presence either
of the seller or of the purchaser, or on the premises,
it is necessary that when performing the talab-i-
ishtahad, he should declare that he has made the
talab-i-mawasabat, and at the same time should
invoke witnesses to attest it. Jadvnan-dun Singh
V. Dulput Singh, I. L. B. 10 Calc. 581, affirmed.
Nundo Pershad Thakur v. Gopal Thaknr, I. L. B.
10 Calc. 1008, overruled. Rujjub Ali Chopedar
t>. Chandi Churn Bhadra I. L. R. 17 Calc. 543

31.

Taldb-i-mniva-

sdbat. In making talab-i-ishtahad under the Maho-
medan law it is essential to the validity of that pro-
ceeding that the person making the demand
should in some form or another distinctly state
that he had prior thereto made what is known as the
immediate demand (talab-i-mawasabat). Bujjah
Ali Chopedar v. Chundi Ch%irn Bhadra, I. L. B. 17
Calc. 543, referred to. Akbar Husain v. Abdul
Jalil . . . I. L. R. 16 All. 383

32. — Demand made

" on the premises " — Demand made within an un-
divided village a share in which was the svhject
of sale. Where certain persons claimed pre-emption
in respect of a share in an undivided village and
proved that they made an immediate assertion of
<heir intention to pre-empt in the presence of wit-

MAHOMEDAN LAW— PRE-EMPTIO:

—contd.

3. CEREMONIES— cow^rf.
nesses within the area of the zamindari to whi(
the share sold belonged : Held, that, in tl
absence of any indication that the demand was n
made bond fide, the demand of pre-emption was
good demand'made " on the premises " within' tl
meaning of the Mahomedan law. Kulsum Bibi
Faqir Muhammad Khan . I. L. R. 18 All. 29

33. Demand ma

to vendee not in possession — Demand made by age
of pre-emptor. Held, that, if the talab-i-ishtahj
is made in the presence of the vendee, it is not nece|
sary that such vendee should, at the time tl
demand is made, be actually in post ess ion of tl[
property in respect of which pre-emption is claim-ii
Chamroo Pashan v. Ptihlwan Boy, 16 W. R.
explained. Jhotee Singh v. Komitl Boy, 10 W. :
119 ; J anger Mahomed v. Mohamed Arjad, I. L. j

5 Calc. 509 ; Gola Bam Deb v. Brindabun De

6 B. L. B. 165 ; 14 Tl'. B. 265 : and DayemoolV
V. Kirtee Chunder Surmah, 18 W. B. 530, referrt
to. Held, also, that the ceremony of talab
ishtahad need not necessarily be performed by ti
claimant for pre-emption in person, but may be pe
formed by a duly constituted agent on his beha'
Wajid Ali Khan V. Lalla Hamiman Prasad, 4
L. B, A. C. 139, and Ojhcoonissa Begnm^ v. BuM>
Ali, W.B. {1864), 219, referred to. Ali Muha
mad Khan v. Muhammad Said Husaix

I. L. R. 18 AIL 3(

34. ■ Wit7i esses — Seh

ants of pre-emptor. In the making of the talab
ishtahad the servants of the pre-emptor are coi-
petent witnesses. The disability in this respej
imposed by the Mahomedan law is limited to mincj-
and persons convicted of slander. Muhamm^-
YuNus Khan v. Muhammad Yusuf !

I. L. R. 19 All. 8S

35.

Beference

talab-i-mawasdbat necessary. A pre-emptor claii
ing pre-emption under the Mahomedan law is hour
at the time when he makes his talab-i-ishtahad,
state distinctly that he has already made talab'
mawasabat. Bujjnb Ali Chopedar v. Chandi Chv
Bhadra, I. L. B. U Calc. .;-•?, followed. Abe/
Beg AM V. Afzal Husen . I. L. B. 20 All. 4i

36. — Beference nee-

sary to the previoiis talab-i-mawasabat. When i
asserting a claim for pre-emption the making of 1'
talab-i-ishtahad is required, it is absolutely nee*
sary that the time of making this demand refererp-
should be made to the fact of the talab-i-mawasab
having been previously made, and this necessity
not removed by the fact that the witnesses to V"
demands are the same. Bujjub Ali Chapedar
Chi.ndi Chirm Bhadra. I. L. B. 17 Calc. 543 ; -
bar Husain v. Aldul Jalil, I. L. B. 16 All. o'^
and Abasi Begam v. Afzal Husen, I. L. B. 20 />
457, followed. Nundo Pershad Thakur v. Gaf
Thakur, I. L. B. 10 Calc. lOOS, dissented frd-
Abid Husen v. Bashid Ahmed

I. L. R. 20 All. 4!

( 8013

DIGEST OF CASES.

( SOU )

dAHOMEDAN LAW— PRE-EMPTION"

— conl<L

3. CEREMONIES— con?<;.

37, — Necessity of im-

nediaie demand. To entitle a person to a right
i{ pre-emption under Mahomedan law, it must be
hewn that the talab-i-ishtabad was made as soon

s possible. Nuraddin Mahomed v. Asgar Ali
12 C. li. R. 312

88. • Necessity of im-

lediatt d'tnand. It is not a binding rrle of law
liat the talab-i-ishtahad by a pre-emptor, if made
ithin a day after the receipt of intelligence of the
urclase, is necessarily in time for the preservation
f the right of pre-emption. The due and sufficient
bservance of the formality of ta]ab-i-ishta?iad as to
'.me is a question to be decided in each case by the

urt which has to deal with the facts. Jamilan v.

ATIF HOSSEIN

8 B. L. R. 160 : 16 W. R. F. B. 13

39. Mode of per-

rrmance. The personal performance of the talab-
ishtahad, or demand for pre-emption by the pre-
nptor, depends on his ability to perform it. Ho
lay do it by means of a letter or messenger, or may
spate an agent, if he is at a distance and cannot
5oid personal attendance. Wazid Ali Khan v.
. ALA Hanuman Prasad

4 B. L. R. A. C. 139 : 12 W. R. 484

Imamtjddin* v. Shah JanJBibi

6 B. Ij. R. 167 note

■ 40. Delay in making

mand — Ceremonies of affirmation. A delay of one
ly j- not such a delay as to interfere with the right
:' pre-emption under the Mahomedan law. The
:)mand by affirmation should be made with the
ast practicable delay. The ceremony of affirm-
ion should be carried out before either the vendor
the purchaser, or be performed on the premises.
ahomed Wai is v. Hazee Emamooddeen

6 W. R. 173

41. Delay i?). 7710 king

mand. A claim to pre-emption should be made
soon as the claimant becomes aware of the com-
mon of the sale. Ajoodhya Pooree v. Sohun
L 7 W. R. 428

llLAHEE BrKSH V. MoHAX . 25 W. R. 9

42. Performance of prelimi-

iry ceremonies — Exjression of readiness to
rchase. Under the Mahomedan law, when a per-
a claims a right of pre-emption, it is necessary to
f validity of his claim that he should promptly

'. after the completion of the sale, his willing-
' become a purchaser. Gholam Hossein r.

OL Kadir . . . 5 N. W. 11

[48. Delay in making

)iliminary declaration. According to the Maho-
idan law of pre-emption, the first thing to be
ine by the claimant of pre-emption is to make the
iliminary declarations. First going to his house
get the money is not a compliance with the law.
)SA Singh r. Mosrad Singh . 5 W. R. 203

MAHOMEDAN LAW— PRE-EMPTION

— contd.

3. CEREMONIES— con/d.

44, Mahomedanlaw

— Talah-i-ishtishad — Reference to the previous
talab-i-mawasihat necessary. When in asserting a
claim for pre-emption under the Mahomedan law
the making of the talah-i-ishlishad is required, it is
absolutely necessary ihat at the time of making
this demand reference should be made to the fact of
the talab-i-mau-as,bat having previously made, and
this necessity is not removed by the fact that the
witnesses to both demands are the same. Abid
Husain v. Bashir Ahmad, I. L. R. 20 All. 99, and
Rujjub Ali Chofedar v. Chundi Churn Bhadra,
I. L. R. 17 C'alc. 543, followed. Chotu v. Husain
Bakhsh, All. Weekly Notes \1893) lOl, referred to.
Sahibzadi\. Alahdiya, All. Weekly Notes il902)
147, and Nundo Persad Thakur v. Gopal Thakur,
I. L. R. 10 Calc. IOCS, dissented from. Mubarak
Husain v. Kaniz Bano (1905)

I. L. R. 27 All. 160

45."

Pre-e7nption —

Talah-i-ishti-^had — Witnesses not specifically invoked.
Held, that the mere fact that the talab-i-ishtishad is
made in the presence of certain persons, who happen
to be present at the place, where it is made, is not
sufficient to make the demand a good one, unless
those persons are specifically called upon to bear
witness to the demand being made. Issur Chunder
Shaha v. Mirza Nisar Hossein, W. R. il8H-:] ^51,
followed. Ganga Prasad v. Ajudhia Prasad
(1905) . . . . I. L. R. 28 All 24

46.

Talab-i-mau-asi-

hat — Power of general attorney to make the talab-i-
mawasihat — Pleading — Practice. Where the plaint-
iff in a pre-emption suit allegd that the first de-
mand of talab-i-mawasihat \\as made for him bj- the
general attorney and the defendant did not deny
that the person in question was the general attorney
of the plaintiff, but in fact no mnkhtarnama or copy
of it was filed, the original being filed in another
appeal then pending before the lower Appellate
Court : — Held, that, looking to the pleadings, the
lower Appellate Court, if it had any doubt on the
point, should cither ha\ e examined the other record
or at least have given the plaintiiT an opportunity of
filing the mukhtarnama or a copy. Held, further,
that the first demand 21 talah-i-mauasibat can be
made by a general attorne}-. Abadi Begam v. Inam
Begaui, I. L. R. 1 All. ■ 21, &nd Hari Har Dut v.
Sheo Prasad, I. L. R. 7 All. U, followed.
Musammat Ojheeoonissa Begum v. Sheikh Rustam
Ali, W. R. {1S6I) 219, referred to. Munna Khan
V. Chheda Sing (1906) . L L. R. 28 All. 691

47. Preemption —

Ceremonies, due performance of — Wahabis, right of,
to worship at jnosque — Restrictions to its exercise —
Special dedication of mosque for use of a particular
sect — Validity. Quare : Whether according to the
Mahomedan Ecclesiastical law, a mosque can be
specially dedicated for the use exclusively of the
Hanafi sect of Sunni Mahomedans. Persons be-
longing to the amil-hil hadi (or Wahabi) sect of

( 8015 )

DIGEST OF CASES.

MAHOMEDAN LAW— PRE-EMPTION

— conkl.

3. CEREMONIES— coMici.

Mahomedans are entitled to worship at mosques
chiefly used by the Hanafi sect and use the loud-
toned amin and raise the hands above the knee
duritig worship. Ataullah v. Azim-ullah, I. L. R. 12
All. 49 i ; Fazl Karim v. Moula Baksh, I. L. B. 18
Calc. 448. relied on. In making a declaratory
decree that the plaintiffs were entitled to worship
in accordance with the Wahabi rituals, the Court
imposed the condition that in exercising this right
the plaintiffs should not interrupt or disturb the
worship of others. Abdus Subhan v. Kurban
Ali (1908) . . . I. L. R. 35 Calc. 294
S.C. 12 C. W. N. 289

48. Pre-emption —

Customary right — Hindus of Bihar — Pleadings —
Right of fve-emption, assertion of — Proof^Delay in
assertion — When to be made — Formalities — Who can
perform — Manager of adult female under Court of
Wards, rights and duties of — Court of Wards Act
(Bengal Act IX of 1879), ss. It, 39, 40, 48, 49, 50—
Bengal Estates Partition Act (Bengal Act V of 1897),
ss. 29, 95. The Hindus of Bihar have adopted the
Mahomedan law of pre-emption for a long lime.
FuJceer Rawot v. Sheikh Emamhuksh, W. R. F. B.
143, followed. Champaran has from the earliest
times been included as one of the districts forming
the Subah of Bihar, and as a judiciil district it has
all along, till quite lately, beei united with Saran,
in which the existence of the custom of pre-emption
has been judicially recognized. Meethun Lai v. Deo
Murat, 6 Sel. Rep. .197, referred to. When the exis-
tence of the custom, under which Hindus have the
same right of pre-emption under the Mahomedan law
as Mahomedans in any district, is generally known
and judicially recognised, it is not necessary to assert
or prove it. Fukeer Rawot v. Sheikh Emamhuksh,
W. R. F. B. 143, explained. There must be no
delay in the assertion of the claim of pre-emption of
talah-i-mawasibat, but before the shafee or pre-
emptor can assert his right to pre-emption, he must
be satisfied by evidence, which he holds to be
credible, that a sale has been completed. Muham-
mad Wilayat Ali Khan v. Abdul Rah, I. L. R. 11
All. 108, distinguished, and Begam v. Muhammad
Yakuh, I. L. R.16 All. 344, followed. Under the
Mahomedan law, before it can be held that the sale
is complete, there must be a cessation of the vendor's
right in the property, and the solution of this
matter is to be found in""determining in each case
what the intention of the parties was. Ladun v.
Bhyro Ram., 8 W. R. 2)5, referred to. There is no
fixed time within which the talah-i-ishtishai should
be performed, and it is a question of fact for the
Court to determine, whether it was done within due
time. Jumeelun r. Luteef Hossein, 16 W. R.
P. B. 13, followed. The performance of the talah-
i-ishtishad is not meant to be done for the infor-
mation of the vendor or vendee, though no doubt
its effect may be to give them information. The
formality is insisted on with the object of securing
evidence that the pre-emptor has really asserted his

MAHOMEDAN' LAW— PRE-EMPTIO:

— contd.

X CEREMONIES— cowdfZ.

right and because evidence is wanted in order '
establish proof before the Magistrate, and, unlil
the talah-i-mawasibat it must be performed in tl
presence of witnesses. Rujjub Ali Chopedar
Chundi Churn Bhadra, I. L. R. 17 Calc. 543, i
ferred to. The performance of the ceremony
the kachari of the vendor is a sufficient complian
with the law. Mubarak Hussain Kaniz Ban
I. L. R. 27 All. 160, not followed. A guardii
or manager under the Court of Wards can perfor
and it is his duty to perform the ceremonies of pi
emption on behalf of an adult female ward of Courl
and from the omission in the Court of Wards A'
to confer the right expressly on the guardian
manager, it does not follow that he is not entit
to perform these ceremonies. Abadi Begum i
Ina7n Begum, I. L. R. I. All. 521, Vmrao 8in\
V. Dalip Singh, I. L. R. 23 All. 123, referred l
Fabrication is not one of the devices permissil
under the Mahomedan law for defeating the rig?
of pre-emption. Per CoxE, J. — A.n order under!
29 of the Bengal Estates Partition Act has not tl
effect of dividing the shares of the proprieto
finally, until the date specified in s. 95 of the Ai|,
and, until the later date, the right of the pi;
emption subsists. Wahed Ali Khan v. Hunodmi.
Pershad, 12 W. R. 484, referred to. Joobraj Sire.
V. Tookun Singh, 14 W. R. 476, distinguish).
Jadu Lal Sahu v. Janki Koer (1908)

I. L. R. 35 Calc. 5i

4. MISCELLANEOUS CASES.

1. Enforoement of rightj-

Delivery or registration of bill of sale. A contrijfc
having been entered into for sale ani purchase!
certain property, the plaintiff, pre-emptor, was it
bound to defer the enforcement of his right of pf
chase till the bill of sale had been delivered or red-
tered, or payment made. Luchmee NARAisi
Bheemul Doss ... 8 W. R. 5"*

See GiRDHAREE Lall v. Deanut Ali

21 W. R.

2. — Offer to purchase at tiip

of registration ^Sufficiency of claim. Held, 1 1
the parties to pre-emption, being Mahomedans, m
be bound bv th?, strict conditions of law of pre-er
tion, and that the olar to purchase before the re;
trar at the tim? of registration of the sale-deed i
not a sufficient compliance with the provision^
that law. Kareemooddeex v. Moizooddi
Khan 1 Agra .4

3, Tender of price —.Veces »

of tender. It is not incumbent on a pre-emptoio
tsnderthe price at the time of making his cla».
Khoffeh Jan Bebee v. Mohamed Mehdee

10 W. R Jl

Heera Lall v. Moorut Lall . 11 "W. R. f°

4^ . — Statement ■'

readiness and willingness to pay. In a suit for

( 8U17 )

DIGEST OF CASES.

( 8018 )

MAHOMEDAN LAW— PRE-EMPTION

— contd.

4. MISCELLANEOUS CASES— conicZ.
emption it is unnecessary to prove a tender of the
actual price paid for the property claimed, it being
sufficient if the person claiming the right to pre-
emption states that he is ready to pay for the land
such sum as the Court may asssess as the proper
price for the property. Nundo Pershad Thakur
V. GoPAL Thakur . I. li. B. 10 Calc. 1008

5, — Liefi of vendor.

The right of the first purchaser is simply a vendor's
lien, — i.e., to retain the property until he has the
money from the party claiming pre- emption. It is
no part of the Mahomedan law that the claimant of a I
right of pre-emption must carry the money in his I
'ands and tender it to the first purchaser. A right i
I pre-emption may be decreed in respect of land
.vithin the patti of the party claiming such right. \
3ULB00D Singh v. Mahadeo Dutt . 2 W. R.^IO [

, 6. Conclusion of i

oiUracl of sale. As soon as a contract is ratified
ly acceptance and the vendor has gone so far that he I
;annot legally draw back, it is time for the pre- j
smptor to step in. A pre-emptor is not required to I
ender the purchaser's price, or any price, at the :
ime of making his demand ; and so long as a party \
■ laiming a right of shufia pays the amount which !
he Court considers to be the proper price, he brings .
limself in Court within a reasonable time. On the ;
[uestion of pre-emption the Court must act in
trict accordance with the provisions of the Maho-
Qedan law rather than on what it thinks just
nd equitable. Nubee Buksh alias Golam Nubee :
. Kaloo Lushker . . . 22 W. E. 4

7. Loss of right — Claim dis-

Toved to specific land at specific price. The right !
;f pre-emption is lost where there is a dispute as to 1
;he purchase-money, if the plaintiff (instead of offer- ;
iig by his plaint to pay the real amount, whatever it !
'lay be) claims to purchase a specific quantity of 1
,ind at a specific price, and that right is shown to ■
ave no existence. Achurbur Panday v. Buck-

aEE Ram 2 W.^R. 38

8. Rights of purchaser on '

llowance of claim— Pro^^s between time of !
MTchase and transfer to pre-emptor. Held, that a
luchaser is entitled to the profits of the property :
urchased by him accruintr between the time of pur-
lase and subsequent transfer to a pre-emptor.
■"i.DEO Pershad v. Mohun . 1 Agra Rev. 30

^- Decree for pre-emption —

's of property accruing between sale and decree '■

ing final — Pre-emption for Hindus — Bengal, \

I . P. and Assam Civil Courts Act {XII of \

', s. 37 — Pre-emption on basis of contract !

••^tom. In a suit for pre-emption based on !

wajib-ul-urz of a village, the plaintiff pre- |

uptor did not ask for a declaration that he was :

I'titled to be treated as a purchaser from the date of

e sale to the vendees-defendants, nor that he was |

'titled to the rents and profits as from the date of j

sale, nor did he ask for mesne profits. The de- |

MAHOMEDAN LAW— PRE-EMPTION

— contd.

4. MISCELLANEOUS CASES— confeZ.
cree in his favour did not grant him any such relief.
The wajib-ul-urz was silent as to whether the pur-
chaser or the pre-emptor was entitled to the profits
accruing subsequently to the date of the sale being
avoided -.—Held by the Full Bench, that the decree
merely avoided the sale and divested the original
owners of all interest in the proi^ertj' as from the
date when the decree became final by the payment,
in accordance with its terms, by the prc-cmptor of
the pre-emptive price decreed, and vested in the
pre-emptor the rights of ownership from that date
and his rights were not postponed until he had ob-
tained possession of the property. Held, also, that
the profits of the property which accrued between
the date of the sale and the date when the pre-
emptor, in accordance with the decree, paid the
decreed pre-emptive price, belonged not to the pre-
emptor nor to the original vendor, but to the original
vendees. Held, by Mahmood, J., that the vendees-
defendants were entitled to the profits accruing
up to the date when the pre-emptor acquired
possession of the property in accordance with the
terms of the decree. Observations by Mahmood, 7.,
upon the texts of the Mahomedan law applicable to
the case by way of analog}' ; upon the contention
that there is a Hindu law of pre-emption applicable
to Hindus, under s. 37 of the Bengal Civil Courts Act
(XII of 1887) ; and upon the relation of the Maho-
medan law to cases in which pre-emption is claimed
on the basis of contract or custom embodied in the
wajib-ul-urz of a village. Deokinaxdan v. Sir
Ram ... I. r. R. 12 All. 234

10. How far Mahomedan law

of pre-emption applicable amongst Hindus
— Statement of claim — Meaning and not form of
statement to be considered. Held, that in the absence
of allegation or proof as to any custom different
from, or not co-extensive with the Mahomedan law
of pre-emption, that must be applied between
Hindus. Jagdam Sahaix. Mahabir Prasad, I. L. R.
2)8 All. 60, Choivdhree Birj Lai v. Paja Goor Sahai,
1 All. H. C. F. B. 1-28, and Jai Kuar v. Heera
Lai, All. H. C. {1875) I, referred to. Further,
where the words used were " I have a claim
for pre-emption on this house. If any one else
purchases it, I shall be put to inconvenience.
Go at this very moment and take the money
from Shushi Bhusan Sircar and tell Ram Charan
and Chakauri Devi to return the house by taking
the money ": — Held, that this was a sufficient
claim ; the concluding portion evincing a desire on
the part of the plaintiff to avail herself of her right.
If she has merely stated that she had a claim that
would not have been sufiicient. Chakafri Devi i-.
Suxdari Devi (1905) . I. L. R. 28 AH. 590

11. — Easement — Pre-emption — Shaft

khalit. In a suit for pre-emption it was found
that the house of tlie pre-emptor discharged
water on the property sold, and this latter and
the house of the vendee discharged water on a
lane intervening between the houses and the pro-

{ 8019 )

DIGEST OF CASES.

( 8020 )

MAHOMEDAN LAW-PRE-EMPTION |

— concld.

4. MISCELLANEOUS CASES— concW.

pertv sold -.—Held, that both the pre-emptor and
the Vendee were sharers in the immunities and
appenda-es {Shaii khalit) and therefore one had no
preferential right over the other. Held, also, that
the Miihammadan law does not prescribe any
period which would give a person the right to en]oy
an immunity such as that of discharging ^-^tev ov
a right of way. Ba.beo .. ^-^ ^;-J J^^i^^^Vg

MAHOMEDAN LAW— PBESUMPTION
OF DEATH.

I Missing iperson— Evidence Act

{I of 1872), s. 108— Act VI of 1871, c. 24. The rule
contained in s. 108 of the Evidence Act governs the
case of a Mahomedan who has been missing for more
than seven years, when the question of his death
arises in cases to which, under the provisions of s. 24
of Act VI of 1871 (Bengal Civil Courts Act), the
Mahomedan law is applicable. Per Mahmood, J .—
The rule of the Mahomedan law that a missing per-
son is to be regarded as alive till the lapse of ninety
years from the date of his birth, is, according to the
most authoritative texts of the Mahomedan law it-
self a rule of evidence and not of succession,
inheritance, marriage, or caste, or any religious
usage or institution," within the meaning ot s. 24
of Act VI of 187 1. Mazhak Al_i^^'. ^^""^"^ l^^'^^rj

2 Bight of inherit-
ance Held, that, as under the Mahomedan law a
missin^T person is considered " defunct " as regards
others' property, and cannot inherit from others
during the period allowed for his reappearance the
plaintiff, his son, and nearest relative of the widow,
was entitled to get the money claimed, it being com-
pensation for land which had been found to belong to
her exclusively, and not as having descended from
her husband. Imam Ali Khan v. Abdul Ali

Khan 2 Agra 28

g ^ Position of, as to

inheritance during absence— Person in unlawful
possession— Legal heir. Held, that, assuming the
Mahomedan law to provide that the share of a miss-
in-^ person, which has devolved on him during his
absence, is to be reserved or held in suspense until
the expiration of the term after which he is to be
regarded as dead, a claimant who had no titk what-
soever to possession could not benefit by such provi-
sion of Mahomedan law in face of the person who
would be the legal heir failing the missing person,
and the possession of such unlawful holder can be
disturbed by such legal heir. Dowlut Khatoon
V. Ali Jan .... 2 Agra 59

4 Alienntionhi heirs

of proprietor— Rir/ht of alienee. In a suit to recover
possession of a share of landed property, where
plaintiff claimed on the ground of purchase from
the heirs of the proprietor, who had been missing
for many years and in which the defendant set

MAHOMEDAN LAW— PRESUMPTION
OP DEATH— cowcZ<i.

up a mokurari, and pleaded that as ninety years
had not elapsed since the disappearance of the
proprietor the property could not, under Maho-
medan law, be inherited by his heirs, and the
alienation bv them was therefore invalid -.—Held,
that, as plaintiff had been found in possession
under the conveyance from the heirs, who did not
dispute his title, the defendant, a stranger, who
had failed to prove either title or possession
under the mokurari which he set up, was not in a
position to advance the plea in question. HeU, also,
that ninety vears is the least period within which,
according to Mahomedan law, the estate of a
missing person can be alienated by his heirs.

HOSSEINEE KhANUM V. TiJUN LaLL

14 W. R. 291

5^ - Alienation of fi'^

perty hy his heirs — Claim of other heirs. A claii
by the wife and daughters of a missing person t
obtain possession of the shares to which the missing
person would have been entitled in the estate of two;
brothers and a sister on surviving them, was rightly
dismissed, under Mahomedan law, on the ground:
that the death of the missing person was not proved,:
and ninety years had not elapsed from his birth. A
sale of the shares by R, the brother of the missing
person, who was in possession, was properly declared
null and void. As R would have excluded the wiie
and daughters of the missing person from inheri^
tance.it was held that he should be allowed to
retain the shares in his hands, subject to then
surrender on the reappearance of the Jiyssina
person. Rakhi Bibi v. Rahat Bibi 7 N. W. Vil

6. Act I of 1872

s_ 108— Act yi of 1871, s. 24. F, one of the heirs t.
the property of his parents (the family being Maho
medans) was " missing " when they died, and subse-
quently, when the other heirs to such property sued
his daughter M for the possession of a portion o
such property, M set up as a defence to the suit tha
her father was alive, and that during his lifetime th'
plaintiffs could not claim his share in such portion :-■
Held by Stuakt, C.J., and Spankte, J., that th
suit, being one to enforce a right of inheritance, musj
be governed by the Mahomedan law relating to f
" missing " person. Parmeshar Roi v. Bt^sheslm]
Singh, I. L. R. 1 All. 53, distinguished. H^^^
Stuart, C. J., that, according to Mahomedan laj^l
ninety years not having elapsed from F's birth, hij
share could not be claimed by the plaintitts, bu
must remain in abeyance until the expiry ot turn
period or his death was proved. Held by PeakSON]
J , and Spankie, J., that F being a " missing ,
person when his parents died, his daughter accora
incT to that law, was not entitled to hold his shar,
either as heir or trustee. Hasan Ali ^'-^^^herba
I. L. R. 2 AIL 62.
MAHOMEDAN LAW-RELlNQUlSH
MENT.

— — Relinquishmei

of share— Voluntary settlement— Document wherel

( 8021 )

DIGEST OF CASES.

( 8022 )

LAW— KELrNQUISH-

V[ A HOMED AN

MENT— conc/i.

eirs give up their rights in the properly in favour
f one heir — Deed supported by vahinble consideration
-Onus of proof — Potver of revocation in a voluntary
'eed. 0, a Mahomedan, died leavinf; him surviving
is widow A and a daughter Z. Z died leaving her
urviving two sons, two daughters and her husband,
vfter her death, her mother A and her husband A.
I. M. aixived at a settlement and executed a docu-
Qpnt whereby thej^ rclinqv.ishcd their share in the
Toperty of 6 in favour of the minor sons of Z. A
hen brought a suit to set aside the document alleg-
ig that it was a voluntary settlement : — Held, that
he document was not a voluntary settlement but
•as a transaction supported by valuable considera-
!on, inasmuch as the relinquishment by one was

nsideration for the relinquishment by the other.
lahammadunissa Begum v. J. C. Bachelor. I. L. B.
9 Bom. 428, followed. Ashidbai v. Abdulla

OOfi) . . . I. L. R. 31 Bom. 271

[AHOMEDAW LAW— EESTITUTION
OF CONJUGAL RIGHTS.

1. Suit for restitu-

■)% of conjugal rights — Limitation Act {XV of 1S77),
, 23, Sch. II, Arts. 35, 120. A suit for restitution
i conjugal rights between Mahomedans is governed
'.r Art. 35 of the Second Schedule of the Limi-
tion Act, if at the time of the demand and
fusal the wife or husband was of full age and sound
ind ; otherwise. Art. 120, Schedule II of the
.imitation Act would apply to such a suit. S. 23
i' the Limitation Act does not apply to a suit for
stitution of conjugal rights. Dhanjihhoy Bomanji
Hirahai, I. L. B. 25 Bom. 644, approved of.
;iRrxxEssA Khatun v. Buzloo Meah (1906)

I. L. R. 34 Gale. 79

2. Suit for restitu-

m of conjugal rights — Legal cruelty — Other mis-
induct of the plaintiff pleaded as a defence to the
it. In a suit for restitution of conjugal rights,
le parties being IMahomcdans, if the defendant
'ises a plea of legal crueltj', the facts to be proved
I establish such a plea arc similar to those which
ust be proved to establish a similar plea under
je English law. Moonshee Buzloor Ruheem v.
umsoonnissa Begum, 11 Moo. I. A. 551. refer-
i to. But in a suit for restitution brought by
e husband misconduct on the plaintiff falling
ort of legal cruelty may be a ground for the Court
'using relief. Thus where the plaintiff appa-
itly only brought his suit on account of his wife
ving filed another suit against the plaintiff's
;her, and in his plaint accused his wife of
morality of the most serious kind, a charee
lich he totally failed to substantiate : Held,
lit the Court would be justified in refusing
[n relief. Mackenzie x. Mackenzie, [1895] A.C.
\i, referred to. On the general facts of the case
'o it was found that the defendant had reason-
le grounds for believing that her health
i safety would be endangered if she
;urned to her husband 's house, which was situated

MAHOMEDAN" LAW— RESTITUTION
or CONJUGAL RIGHTS- concW.

in a'Native State. Husai.vi Begam v. Muhammad
RusTAM Ali Khan (1906) I. L. R. 29 All. 222

3. ' Suit for restitu-

tion of conJ2igal rights — Non-payment of dmcer —
Consummation of marriage. To a husband's suit for
restitution of conjugal rights, the wife pleaded non-
payment of dower. To this the husband pleaded
consummation of marriage : — Held, that after
consummation of marriage, non-payment of dower^
even though proved, cannot be pleaded in defence
of an action for restitution of conjusal riehts.
Aidul Kadir v. Salima, I. L. R. S All. 149, Kunhi v.
Moidin, 1. L. B. 11 Mad. 327, and Hamidunnessa
Bibi V. Zohirnddin Sheikh, I. L. R. 17 Calc. 070,
followed. Bai Hansa v. Abdclla (190.5)
j I. L. R. 30 Bom. 122

MAHOMEDAN LAW— SALE.

See Mahomedan Law — Mortgaok.

I. L. R. 20 Bom. 116

MAHOMEDAN LAW— SLAVERY.

See SLAvr.RY . I. L. R. 3 Bom. 422
12 Bom. 156

MAHOMEDAN LAW— SOVEREIGNTY.
Sovereign's rights as to pro-
perty. By Mahomedan law, semble, the dominion
of the sovereign is equally absolute and uncontrolled
over all his possessions of every kind ; but, gucere,
whether all his possessions are necessarily subject to
the ordinary rules of inheritance and partition
among descendants. A reigning Mahomedan prince
may possess property held jure cnronce, as well as
property acquired by some other title. Onri.AM
Mtthammad Naiamut Khan v. Dale 1 Mad. 281

MAHOMEDAN LAW— SUCCESSION.

See Mahomedan Law — Inheritance.

Creation of vested re

mainder by a Mahomedan — Spes srcces^ionis —
Creation of life-interest amongst Shias alloyed. It is
possible for a Mahomedan to create a definite inter-
est like what would be called in English law a vested
remainder, and such a remainder, though liable to be
displaced, is not a mere expectancy in succession bj-
survivorship or other merely contingent or possible
right or interest, but an interest that could be
attached f>nd sold. Unus Chunder Sircar v.
3Iussummat Zahoor Fatimr., L. R. 17 /. .1. 2^^!^
followed. Amongst Shias the creation of a life-
interest is allowed, and it appears according to
Shia authorities that during the period of the life-
interest the defcrrcfl interest can be dealt with by
way of sale, eift, and otherwise, pro^ ided that there
is no interference with the particular estate, and
it would seem to follow that the purchaser or donee
could deal with the interest so acquired by him.
Banoo Begum v. Mir Abed Ali (1907)

I, L. R. 32 Bom. 172.

( 8023 )

DIGEST OF CASES.

( 8024 )

MAHOMED AN LAW— TRUST.

1. Trust— Will—

Reference to trust deed in will for the purpose of con-
firming it — Testamentary document — Trustee de son
■tort — Express trustee — Liabiliti/ to account — Limit-
ation Art [XV of 1877), s. 10. Under the Maho-
medan law possession is as necessary in the case of
trusts as in the case of gifts — not necessarily direct
possession of the premises, but the best possession
of which the property is capable at the time, either
actual, symbolical or constructive. Where a trust
deed is referred to in a will with a view of confirming
it, it is confirmed and becomes part of the will. If
express trusts are created by deed or will and some
third party takes upon himself the administration
of the trust property he becomes a trustee de son
tort and, as such, is bound to account as if he were
the rightful trustee and limitation will not run in his
favour under s. 10 of the Limitation Act (XV of
1877). MoosABHAi V. Yacoobbhai (1905)

I. L. R. 29 Bom. 267

Trust deed —

Life interest with remainder over — Gift to unborn
persons. A deed creating a life interest with
remainder over is void under the Mahomedan Law.
Similarly, a gift to unborn persons, is void. Shaheb-
zadah Mahmud Faradoon Jah v. Shahebzadi Fakir
Johban Begum, suit No. 121 of 1907 (unreported),
Shahebzadah Maliomed Abdool Hossain v. The
Official Trustee of Bengal, suit No. 567 of 1908,
(unreported), and Shahebzadah Mahomed Mouzzum-
uddeen v. The Official Trustee of Bengal, suit No. 791
■of 1901 (unreported), followed. Mahomed Shah v.
Official Trustee of Bengal (1909)

I. L. R. 36 Gale. 431

MAHOMEDAN LAW-
PERTY.

-USURPED PRO-

Conversion of usurped property

— Right of suit for damages by party injured. Under
Mahomedan law, where there has been a change
in usurped property, the injured party has a claim
to recover damages in respect of "the property
usurped, but cannot claim to share in the property
into which it has been converted. An heir cannot
therefore claim estates purchased with moneys
belonging to the ancestral estate of the deceased
which have been misappropriated by a coheir, but
must claim to recover his share in money. NooR-

OOL HOSSEIN V. MOONEERAM . 4 H'. "W. 103

MAHOMEDAN LAW— USURY.

1. Interest— .4 r« XXVIII of

1855. The custom of taking interest as between
Mahomedans is recognized by the Courts. Semble :
— Per Phear, J. (dissenting from Ram Lall Mooter-
jee V. Haran Chunder Dh:;r, 3 B. L. R. 308 O.C. 130)
—Act XXVIII of 1855 repealed the Mahomedan
laws relating to usury. By " laws relating to
usury ' ' the Legislature meant laws affecting the
■Tate of interest. Mia Khan v. Bibi Bibijan

5 B. L. R. 500 : 14 W. R. 308

2- ^ — Interest on dower.

■^Mth respect to the awarding of interest on a claim

MAHOMEDAN LAW— USURY— concZ^i,

of dower by a Moslem widow, the principle oJ
Mahomedan law will not apply. Soorma Khatooi*
V. Attaffoonnissa Khatoon . 2 Hay 21C

MAHOMEDAN LAW— WAJIB-UL-ARZ

See Mahomedan Law — Pre-emption.

1. Wajib-ul-arz —

Construction of document — Mahomedan Law—
" Intiqal.'' Where in a wajib-ul-arz it was recorded
merely that " the custom of pre-emption prevails " .
Held, that in the absence of any special custom
diiierent from or not co-extensive with the Mahome
dan law of pre-emption, the Mahomedan law musi
be applied. Ram Prasad v. Abdul Karim, I. L. B.
9 All. 513, followed. The term " intiqal " occur
ring in the pre-emptive clause of a wajib-ul-ar
covers all kinds of transfers, mortgages as well a.
sales. Jagdam Sahai v. Mahabir Prasad (1905)

I. L. R. 28 All. 60

2. Wajib-ul-arz-

Owner of isolated plots in a village. Held, that thi
owner of isolated i)lot3 of land in a village is a co
sharer in the village and may as such possess righti
of pre-emption, although he does not own a share iii
the zamindari of the village and his name is noi
recorded in the khewat. Safdar AH v. Dost Mw
hammud, I. L. R. 12 All. 426, and Dakhni Din v)
Rahim-un-nissa, I. L. R. 16 All. 412, followed^
Ali Husain Khan v. Tasadduq Husaix Kha;
(1905) . . . . I. L. R. 28 All. 12-!

3. Wajib-ul-arz-

Construction of document. The pre-emptive clause c
a wajib-ul-arz was drawn up in the followin
terms : — "In case of great necessity each co-share
is entitled to transfer his property as recorded in thI
khewat, and the near co-sharers a:id the pattidai
can claim a pre-emptive right, but out of them tl
one, who is nearer, will have a prior right to do so :
Held, that the right of pre-emption only arose c
a sale to a stranger. If the sale was to a co-sharej
no right of suit accrued to a nearer co-share
Jai Dat v. Ram Badal (1905)

I. L. R. 28 AIL 16

4. ■ Wajib-id-arz-

Sale of land by Government. When Government hi
acquired land permanently it doe 5 not become a r
sharer in the village, to which the land origina;
appertained, and on a sale thereof the provisp
contained in the village wajib-ul-arz, which il
with sales by co-sharers in the village, are not appli
able. Gaya Singh v. Ram Singh (1905)

I. L. R. 28 All. 23

5. Wajib-ml-arz-

Pre-emptor accepting a lease of property in suit fro
the vendee. Where in a suit for pre-emption bas'
upon a custom declared in the wajib-ul-arz it w
found that the pre-emptor had, with knowledge
hi«i right as pre-emptor, accepted a lease of t
lind claimed from the vendee : Held, that tl
amounted to such an acquiescence in the sale
would bar the plaintiff's right of suit. Kishan'L
«;. IsHRi(1905) . . . I. L. R. 28 All. 2'

( 8025 )

DIGEST OF CASES.

( 8026 )

[AHOMEDAN LAW— WAJIB-UL.-ARZ

— contd.

0, - Wajib-ul-arz —

o-sharer — Oumer c/ plot of grove land. Held, that
person, who buys a plot of grove land in a village,
363 not thereby become a co-sharer in the village
, as to entitle him to enforce a light of pre-emption
ider a wajib-ul-arz, which confers such right upon
, -sharers. Dnkhni Din v. Eahimun-nissa , I. L.
. 16 411. 412, and All Hu&sain Khan v. Tasadduq

ussain Khan, I. L. R. 2S All. 124. referred to.

OHAMMAD AlI V. HUKAM KUNWAR (1905)

I. L. R. 28 All. 246

7^ ., Wajib-ul-arz —

mstriiction of document — Partition of village into
parate mahals. In a village, which consisted of
"0 patties or mahals, the wajib-ul-arz recorded a
. -iom of pre-emption to the effect that in the case
sale cr mt rtgage by a &hare-holder a claim for
e-emption might be brought by (i) own brothers
4 nephews, (ii) cousins who are co-sharers, (iii)
-sharers in the patti, and (iv) shareholders in the
Uage (hissadaren deh). The village was subse-
lently divided into more mahals, but no r.ew
ijib-ul-arz was framed': Held, that a. co-sharer
the village had a right of pre-emption as against
stranger, even though he did not own a share in
e mahal in which the property sold was situate.
ilganjan Singh v. Kalka Singh, I. L. E. 22 All. 1,
[erred to. Janki v. Ram Paetab Singh (1905)
I. L. B. 28 All. 286

8. Wajib-ul-ar~ —

instruction of document — '" Qimat." Held, that the
)rd "■ gimat " as used in the pre-emptive clause
1 a tvajib-ul-arz is wide enough to include the
insideration given for an usufructuary mortgage
'th possession as well as for a sale. Hulasrai v.
jvM Prasad (1906) . . I. L. R. 28 All. 454

|9. ■ Wajib-ul-arz — ■

Imslruction of document — Custom or contract. In
liuit for pre-emption two wajib-ul-arz were relied
Ion. The earlier wajib-ul-arz of the year 1864
.ovided that " If a sharer desires to transfer his
!are, tne first right of pre-emption is possessed by
\i near brother, next by the sharers in the patti
!d next by the sharers in other pattis, and when
; these have declined to take a transfer the sharer
jiy sell to any one he likes." The latter wajib-
\arz of the year 1884 under the head, " custom as
: pre-emption " provided that " no such case has
I yet occurred : but we acknowledge the right of
'i-emption." Held, that the wajib-ul-arz of 1864
\s evidence of the existence of a right existing
I custom and the provision in the latter was a
jjognition by the paities of the custom prevailing
jder the earlier ivajib-ul-arz. Earn Din v. Eukiuir
I'igh, I. L. E. 27 All. 553, followed. Daulat
jMathura (1906) . . I. L. R. 28 All. 456

,10. Wajib-ul-arz —

instruction of document — Eetention of same wajib-
\arz after division of village into mahals — Hissa-
\'an deh and hissadaran patti on the same footing.
Iiere a village was divided into three mahals

MAHOMEDAN LAW— WAJIB-UL-ARZ

— contd.
and the new wajib-ul-arz, which was prepared
for one of them, A. M. was copied verbatim
from the wajib-ul-arz of the village before
division and clearly put hissadaran deh and
hissadaran patti on the same footing: — Held, that
a co-sharer in the mahal of A.M. had no right of
pre-emption in regard to property sold in A. M.
as against a co-sharer who, though he had no
share in the mahal A. M., was a co-sharer in
one of the other mahals. Dalganjan Singh v.
Kalka Singh, I. L. B. 22 All. 1, distinguished.
Sardab Sixgu v. Ijaz Husaix Fvhax (1906)

I. L. R. 28 All. 614

11. ; Wajib-ul-arz~

Inference from entry in previous wajib-xd-arz — Maho-
medanLaiv. A village wajib-ul-arz, prepared in the
year 1883, contained only the following entry with
reference to pre-emption : — " Custom of pre-
emption : — No pre-emption suit has been instituted,,
but the custom of pre-emption is accepted."
But the wajib-ul-arz of the same village, piepared
in 1864, was more explicit. It ran as follows : —
" Mention of the right of pre-emption : — When it
is desired to transfer a share, the heirs and near
brethren have the right first. On their refusal to
take, the transferor is competent to sell, mortgage
or assign to any one he likes :" — Held, that in the
wajib-ul-arz of 1883 the villagers intended to
reproduce — and understood they were in fact
reproducing — the custom of pre-emption that pre-
vailed in 1864 : that therefore the provisions of the
Mahomedan law were not applicable. Pokhae
Sing v. Husain Khan (1906)

I. L. R. 28 All. 679

Vajib-xd-arz-

Constructionof document — " Shurkayan-i-shikmi."'
The wajib-ul-arz of a village (Kandla) in the
Muzaffarnagar district gave a light of pre-emption,
first to shikmi co-sharer (Shurkayan-i-shikmi),
secondly, to share-holders descended from a common
ancestor [Shurkayan-i-jaddi), and thirdlj-, to khe-
watdars in the mahal (Khewatdaran-i-mah^l). The
mahal was divided into seven pattis and the land in
dispute was situated in patti Khail, thok Bhuria.
The pre-emptors were co-sharers in patti Khail.
One of the vendees was a co-sharer in the mahal.
but not in patti Ivliail. Held, that, regarding the
whole context of the wajib-ul-arz, the expression
shurkayan-i-shiktni was intended to denote rela-
tives by blood and not co-sharers in any sub-division
of the mahal, and the plaintiflswere not therefore
entitled to pre-emption. Bahal Singh f . Mi'barik-
TjN-NissA (1907) . . . L L. R. 30 All. 77

13. — Wajil,-ul-arz—

Co-sharer — Oivner of resnmexl muafi land. The pre-
emptive clause of wajib-ul-arz contained the follow-
in'' provision : — " Minjumla malikon-ke agar koi
hissadar ajmi haqqiat bai karne chahe to aicwal du-sre
hissadar sharik haqqiat ki hath bai karega.'' Held,
that the owner of resumed muafi land (which had
been resumed before this wajib-ul-arz was framed)'
in the same Idiewat as the land sold was entitled

( 8027 )

DIGEST OF CASES.

{ 8028 )

MAHOMED AN LAW— WAJIB-UL-ARZ

— concJd.
to pre-emption as against a vendee, who was merely
a co-sharer in a different khewat. Lalta Prasad v.
Lalta Prasad, All. Weekly Notes {1881) 165, referred
to. Nabain Prasad v. Mttnna Lal (1908)

I. li. B. 30 All. 329

14.

Wajih-ul-arz —

Construction of document. The pre-emptive clauses
of a wajib-ul-arz contained the following provi-
sion : " The zamindar of the khalsa is one person ;

hence there is no custom of pre-emption in the
khalsa ^ but among the owners of the khalsa and
miliks the following custom of pre-emption obtains."
The kJutlsa subsequently came to have more owners
than one : — Held, that no right of pre-emption was
criven by this wajib-ul-arz to the owners of the khalsa
inter se, but that a sale of a share in the khalsa was
subject to the Muhammadan law of pre-emption,
and this irrespective of the fact that the vendee was
a Hindu. Gobind Dayal v. Inayatullah, I. L. R.
7 All. 775, Qurban Hussain v. Chote, I. L. R. 22 All.
102, and Amir Hasan v. Rahim Bakhsh, I. L. R. 19
All. 406, referred to. Ram Lal v. Bahadur Ali
(1908) . . . . I. L. R. 30 All. 372

15, Wajib-ul-arz —

■Construction of document — Custom or contract. The
wajib-ul-arz of a vilage in the Saharanpur district of
the year 1867 contained the following agreement
on the part of the " khewatdars " of the village
that "up to the term of the settlement and in
future to the termination of the next settlement they
will abide by the following terms and act upon
them. " Amongst the subsequent provisions were
certain provisions relating to the right of pre-
emption. In a later wajib-ul-arz of 1890 no
mention was made of any custom of pre-emption,
but it contained these words : " For the re-
maining village customs see the Wajib-ul-arz pre-
pared in 1867." Held, that the A^'ajib-ul-arz of
1867 recorded a contract and not a custom, and
that the rights conferred by it would not be perpe-
tuated by the incorporatio i in the later wajib-ul-
arz of the customs existing in the village. Budh
Singh v. GorAi. Rai( 1908) I. L. E. 30 All. 544

MAHOMEDAN LAW— WAKE.

See Mahomedan Law — Endowment.

Wakf, property — Jur-

isdiction. Under Mahomedan law, the High Court
has jurisdiction to authorise deaUngs with wakf pro-
perty. Shama Churn Roy v. Abdul Kabeer, 3 C.
W. N. 158, followed. In the maUn- of Woozatun-
NESSA BiBEE (1908) . I. L. R. 33 Caic. 21

MAHOMEDAN" LAW— WIDOW.

See Mahomedan Law — Dower.

Alienations by widow —

Validity. According to the Mahomedan law, the
widowed mother is not the legal guardian of the
property of her minor children, and carmot do any
act relating to their property so as to bind them and
a sale or mortgage by her cannot, as such, bind the

MAHOMEDAN LAW— WIDOW—coac/d.

minor children. Though she may be a co-hel
with her minor children in respect of the propert^
dealt with by her, the Mahomedan law unlike th'
Hindu law, does not constitute the senior co
heir the managing co-parcenor, entitled to admi
nister and manage the estate until partition. Alie
nations by such a widow cannot, therefore, be up
held by extending to Mahomedans the principle o
Hindu law appliable to the acts of a guardian o
managing member of a family. Pathummabi ?
ViTTiL Ummachabi(1902) I. L. R. 26 Mad. 73'

MAHOMEDAN LAW— WIFE.

See Mahomedan Law — Dower.

1. Power of alienation— Powe

of wife as one of several tenants -in- common to gra
^ease. The District Judge's decision that a i^iak
medan married woman cannot execute a vali
lease which may endnre beyond her lifetime, (
property of which she is one of several tenants-ir
common, held bad in law. Nichhabhai Pkag;
V. Issekhan Haji Abdulla Khan

2 Bom. 313 : 2nd. Ed,, 29

2. Husband and wife— Pr&sumj

tion of ownership of properly. Where rights (
ownership had been exercised for a series of yea:
by the husband, and never by the wife, over pn
perty which had descended from his wife's fathi
(hii own uncle), the husband having mortgagel
the property and dealt with it in all respects ?
if were the owner, and the wife possessing no^
of the documents which she would have been abi
to produce if she had acted as the o^vner, it \vi
held that she had no such interest in the proper
as entitled her to maintain a suit to recover pc
session of it after it was sold in satisfaction
the husband's debts. Ozeeroonissa Bibi
V. Ramdhun Roy . . .11 W. R. 1

MAHOMEDAN LAW— WILL.

See Mahomedan Law — E ndoavment.

L L. R. 25 AIL 23

See Mahomedan Law — Gift — ValiditI

W. R. 1864, 2'

1 W. R. 17, If

8 W. R. J

7 N. W. 3]

I. L. R. 9 All. 8(

See Parties — Parties to .^uit— Exec

tors. . . I. L. R. 19 Bom. i

See Receiver . I. L. R. 19 Bom. i

1. Gift operating as will— G*

in contemplation of death — Legacy. Accordingj
the Mahomedan law, a gift made in contemplatif
of death, though not operative as a gift, operai
as a legacy. Oidinarily it conveys to the lega
property not exceeding one-third of the decease
whole property, the remaining two-thirds going
the heirs. In the absence of heirs, a will carries <
whole property. Ekin Bibee v. Ashruf Ali

•^ 1W,R.1

DIGEST OF CASES.

8030 )

[AHOMEDAN LAW— WILL— con^ci.

2. Invalid will— H'/ZZ disinherif-

g heirs. A wasi-ut-namah, or will, divesting all
.e property from the next heirs, is illegal under
ahomedan law. Jumunooddeen Ahmed r.
OSSEIN Ali . . . 2 W. R. Mis. 49

3. . Will made iviih-

d consent of heirs. A will which has never re-
ived the assent of the heirs of the testator is in-
)erative to alter their rights to succeed according
. the Mahomedan law of inheritance. Kadik Ali
HAN I'. NowsHA Be(;um . . 2 Agra 154

4. Will devising

ore than half estate to daughter. Under the
ahomedan law, a person cannot devise more than
.e-half of his estate to his daughter, and a will

'ising more to her is invalid. Mahomed Mudun
Khodezunnissa alias Khookee Bebee

2 W. R. 181
; 5. - Bequest hy mar-

iid woman — Consent of hiisband. Held, that the
iquest by a married woman of the whole of her
tate to her brother, without the assent of her hus-
md, was invalid according to the Mahomedan law.

UHAMMAD V. ImAMUDDIN

2 Bom. 53 : 2nd Ed. 50

. 8. Legacy to one of

veral heirs — Wa7it of conseiit of others. A legacy
,miot be left to one of a number of heirs without
e consent of the rest. Abedooxissa Khatoon
!Ameeroonissa Khatoon . 9 W. R. 257

1 7. ■ Power of testator

: interfere with devolution of property. By the
ihomedan law, a testator may bequeath one-third
his estate to a stranger, but cannot leave a legacy
one of his heirs without the consent of the rest.
\vili purporting to give one-third of the testator's
operty to one I if his sons as his executor, to be
pended at the son's discretion in undefined pious
es, and conferring on such son a beneficial interest
the surplus of such third share, held to be an
tempt to give, under colour of a religious bequest,
* legacy to one of the testator's heirs, and to be
|Valid without the confirmation of the other heirs.

IHAJOOEOONXISSA V. ROUSHAN JeHAN

I. L. R. 2 Calc. 184 : 26 W. R. 36
L. R. 3 I. A. 291

][ ill made with-

t consent of heirs. Plaintiffs claim.ed as pur-
asers from the daughters (as heirs) of a Maho-
lidan. The son, intervening, was made a party
^ the suit, and set up a will executed by his father,
J.der which a large portion of the estate was
jdowed for charitable purposes, and the rest
Inded among the heirs. U'he lower Appellate
j'Ui-t found the w ill to be bond fide, and dismissed
J3 suit :~IIeld, that the will having been put in
jue, the lower Appellate Court should have found
liether the heirs were consenting parties ; for the
iquest by a Mahomedan of more than one-third
his estate without the consent of his heirs is
l^alid. Baboo JAN v. Mahomed Nurool Huq

1^10 W. R. 375

MAHOMEDAN LAW— WILL— .o/i^/.

9. Suit for share of

property against persons in possession tinder will
— Onus probandi. In a suit for an undivided share
of property claimed by the plaintiffs, as heirs of the
deceased owner, where the defendants pleaded pos-
session under a wasi-ut-namah, or will : — Held, that
the Court could not tell how far the will was valid or
invalid under the Mahomedan law, which allows a
testator to give away from his heirs only one-third
of his property, and therefore the onus was on the
defendant to furnish a complete statement of the
testator's property at the time of hi« death ; failing
which the plaintiff's claim must prevail. Sukoomut
BiBEE V. Warris Ali . . 22 W. R. 400

10. Consent of heir
— Consent heiore testator's drath. By Mahomedan
law the consent given by heirs to a testator's will
before his death is no assent at all ; to be valid, it
must be given after the testator 's death. NusRcr
Ali v. Zeinunnissa . . 15 W. R. 146

11. ^ Assent given

after testator 's death. According to Mahomedan law ,
the consent of the heirs can validate a testamentary
disposition of property iu'excesspf one-third of the
property of the testator, if the'consent be given after
the death of the testator. But if the consent be
given during the lifetime of the testator, it will not
render valid the alienation, for it. is an assent given
before the establishment of their own lights.
Cherachom Vittil Ayisha Kutti Umah v. Vall\
PuDiAKE BiATHu Umah . . 2 Mad. 350

12. ■• — Consent of heirt-is

to will — Evidence of consent. To establish the
consent of a Mahomedan heiress to a will, evi-
dence of some act done at the time of its execution,
or some act done subsequently amounting to a rati-
fication of it, is necessary." The Court will not
presume the consent of a Mahomedan heirc-ss to a
will even although she continues to reside in a
dwelling-house assigned to her by the will in ques-
tion. Ramcoomer Chunder Roy v. Faqueeroox-
issA Begum. Faqueeroonissa Beotjm r. Sufdar
Ali . . . . 1 Ind. Jiir. O. S. 119

13. Consent of heir

— Evidence of consent. According to ilahomedan
law, a will is valid as against an heir if he affixed
his signature to it as a consenting party thereto
without undue influence. Khadejah "Bihee v.
SuFFUR Ali 4 W. R. 36

14.

Construction of

a letter containing a bequest — Suicide of testator.
A letter, written shortly before the testator's death,
contained directions as to his property, conferring
the proprietary right therein in equal shares on
certain persons, to take effect on his death. Accord-
ingly, the letter acted as a will under Mahomedan
law. The testator died, within a few hours after,
from poison administered by himself with the inten-
tion of suicide. The letter stated that he had taken
poison, but this was c-bnstrued as a representation
of the state of things as they would present them-
selves at the time when the letter arrived. Title

( 8031 )

DIGEST OF CASES.

( 8032

MAHOMEDAN LAW— WILL— cow^ci.

tinder the will having been disputed in this suit, on
the ground that the will having been made by a
person who had taken poison for the above purpose,
was invalid by Mahomedan law : Held, that the
burden of proving that the will was written after
taking the poison was on the party impugning the
will ; that the letter was consistent with its having
been written before taking the poison ; that the
other evidence tended strongly to show" that it was
written before ; and that therefore the reason
alleged against the validity of the will was not
applicable to the case. Mazhak Huseix r. Bodha
BiPi . . . . I. L. R. 21 All. 91

L. R. 25 I. A. 219

15.

Form of will — Nuncvpnflve

will — Evidence of will. The rule that by Maho-
medan law a will does not require to be in writing
is universal. The omission to WTite the wish, where
there was ample time for that purpose, may throw
doubt on the fact of the words being used as the
expression of the testator's last will. But if the
Court finds that the testator expressed his will, and
that this was his last will, the omission to render it
into writing will not deprive it of lecal effect.
Tameez Begum v. FxjRnuT Hosseik 2 N. W. 55

16.

Ni.ncu'pative will

— Laic of Shiah sect. A nuncupative will by
Mahomedan of the Shiah sect bequeathing property
less in amount than one-third of his estate held
valid by the Mahomedan law, and effect was given
to the bequests. Semble : Such verbal bequests
would have been valid even if beyond a third of the
testator's estate, provided the heirs concurred in the
bequests. Aminooddowlah v. Roshbn Ali Khan
5 Mod A. 199

17.

Prooj of inten-

tion where purpose not completed. ^Vhere a testa-
trix devise -I a certain disposition of her whole pro-
perty in the course of a wajib-iil-arz relating to only
a portion of it, and independent testimony of her
intention to make this disposition was produced : —
Held, that the dipositiun was valid against a claim
of possession set up by a rival claimant. Maho-
iHED Altaf Ali Khan v. Ahmed Buksh

25 W. B. 121

18.

Assignment to

take effect on death — Sale. An assignment of his
property made by a Mahomedan in favour of his
widow and his two sons, reserving to hiraself full
power over it during his life and restricting the son's
right to alienate during their mother's life, as she
was to enjoy it in lieu of her dower, held to be a dis-
position of a testamentary nature, and void of the
requisites of a sale under the Mahomedan law.
Mogul Begum v. Fukerun Bebeb 3 Agra 288

19- Construction of will. A

Mahomedan lady made a w ill disinheriting her near-
est relations and leaving her whole estate to her
nei>hew " Nuslun bad nuslun battun bad battun "
(from generation to generation) -.—Held, that the

MAHOMEDAN LAW— WILL- conii.

devise to the nephew was absolute to him, and di
not extend to his sons in case of his death before h
aunt. OoMUTooNNissA Beebee r. Ooreekoo?
issA Beebee . . . . 4 W, B. e'

20. Disposition <

estate among sharers — Words of duration of estat
not denotiruj more than interest for life — Constrm
tion — Restriction upon alienation. Words such i
" always " and " for ever," used in an instrumer
disposing of property, do not in themselves denote a
extension of interest beyond the life of the perso
named as taking, their meaning being satisfie
by the interest being for life. An instrument-;
the nature of a will, made by a Mahomeda:
gave shares in his property to his survivir,
widow, son, and grand-children, and devoted
share to charitable purposes. It directed th
his son "should continue in possession and occi!
pancy of the full sixteen annas of all the estate'

All the matters of management in conne

tion with this estate should necessarily and obi

gatorily rest ' always ' and ' for ever ' in h

hands." Tt also, with the express object of keepu

[ the property in the family, attempted to restri

1 alienation by the sharers. There were other proA

sions to the same effect in regard to the manasr'

ment by liis son, who retained it till his deati

The defendant, who was a son of that son, haVii

claimed to retain possession of the property in orcl

I to carry out the provisions of the will : — Held, thi

on its true construction the plaintiff, a sharer und

j it, was entitled to the full proprietary right i|

and to the possession of, her share, notwithstandi'

I the above expressions in the will, and the attem

I to control alienation by the sharers. Muoamm.

Abdul Majid v. Fatima Bibi I. L. R. 8 All. J

L. R. 12 I. A. 1?

21. . Bequest to p

sons not in existence at testator's death. A Mat
medan testator who died in 1861 by his will left If
property in equal four shares to his second and thi
sons V and E, to the lawful son (if an^- ) of his eldt
son 31 and to his (the testator's) brother A. I
eldest son 31, he disinherited. He directed that t
property was not to be divided until V and E hi
attained the age of twenty, and as to the share of »
lawful son of M, it was to be held in trust until sui
son should reach the age of twenty. At the timep
the testator's death no son of 31 was living. Shorf
after his death, a son was born to 31, but he IM
only for a few months. The testator's brother
was appointed executor of the will. In 1878
and E sued the executor A and his son S for ■■
account and division of the property, and bj^
consent-decree passed in 1881 three-fifths of v
property were given to V and E, and the remainE
two-fifths to A and S. The estate was duly dividl
in accordance with the decree, and the parties <^
possession of their respective shares. In Februa^
1884 another son was Vjorn to 31, and in May 18]t
the infant brought this suit by his father and nd
friend, claiming to be entitled, on his attaim
the age of twenty, to one-third of the prop

( 8033 )

DIGEST OF CASES.

( 8034 )

MAHOMED AN" LAW— WlLIi— con <c?.

received by V and E, under the consent-decree :
Held, that the plaintiff could not recover, not
having been in existence at the date of the
testator's death. According to Mahomedan law
IS well as Hindu law persons not in existence
It the death of a testator are incapable of
aking any bequest under his will. Abdul Cadur
Hui°Mahomed I'. Turnkr (Official Assignee)
I. L. R. 9 Bom. 158

22.

Charitnlle be-

£iet, ^■•'~ —

jnest—Stat. 43, Eliz., c. 4—''Dharm," meaning of.
tn tbe will of a Khoja Mahomedan, written in
he English language and form, a gift of a fund " to
)e disposed of in charity as ray executor shall think
ight" is a valid charitable bequest, and it will
,? referred to the proper officer of the Court to settle
scheme for the application of the fund to charitable
(bjects by analogy to Act 43, Eliz., c. 4. Where,
lowever, the will' is in the native language, and
'he word " dharm " or " daram " is used the word
5 held too vague and uncertain for the gift to be
arried into 'effect by the Court, the Court
haram or daram including many objects not com-
rehended in the word "charity " as understood in
Inglish law. Gangbhai v. Thavar'Mulla
I ^ " 1 Bom. 71

■ 23. Invalid gift for

ant of assent of heirs. A Mahomedan by his will
equeathed the rents of a certain house in trust for
is children, and directed that, after the death of the
|,st surviving child, such rents should be paid to the
|Ommittee of the District Charitable Society : —
I'eld, that, as the gift to the children being a gift
() the heirs of the testator to which there was no
iiscnt was invalid, the gift to the District Charit-
)Ie Society also failed. Fatima Bihee v. Ariff
MAiLjEE Bham . . . 9 C. L. B. 66

24.

Proliihition of

ienalion or -partition. A Mahomedan testator by

ill decreed that his moveable estate should not be

vided or alienated by any of his heirs, and directed

s executor to appropriate the net income, accord-

•z to a schedule annexed to his will among certain

itic persons divided into two classes, viz., those

t' )ok and those who did not take by inheritance :

. that the intention of the testator was to

avour to prevent any partition of the estate, and

" convert his heirs-at-law into mere annuitants

ig grants from him. The executor held the

:• in trust to pay the profits in certain defined

s to the heirs, and their representatives could

'lead adverse possession against them so as to

'leir claims by lapse of time Khajoori'XISSa

IIEEMXINNISSA . . 17 W. R. 190

0. — Administration

estate, of a Shiah Maliomedan iinder his icill
'iged gift — Claims as hetiveen his childless
■0 and the estate — Right of childless widow to
'enance — Legacies chargeable on one-third

! of the estate — Commission to executor. A
•medan of the Shiah sect, dying without issue,
i widow. She as his childless widow was enti-

VOL. III.

MAHOMEDAN LAW— WILL—con^rf.

tied to one-fourth of his estate other than land.
In the administration of his estate the following
matters arose and were decided. The handing over,
with formal words of gift by the testator to the
widow, of deposit receipts, with intent afterwards
to transfer the money into her name at the bank,
which transfer was not effected, would not consti-
tute a gift. A commission of three per cent, on the
proceeds of the sale of the testator's property,
directed by his will, was bequeathed to the executor.
This was by way of remuneration, but was in no
sense a debt. As a legacy, it was payable only out
of one-third of the estate which passed by the will.
A Mahomedan widow is not entitled to maintenance
out of the estate of her late husband, in addition to
what she is entitled to by inheritance or under his
will. Hedaya, Booh IV, Ch. 15, s. S, Mahomedan
law, Imamia, by N. E. Baillie, p. 170, referred to.
No contract could be implied that this widow should
pay an occupation rent on account of her having
continued to occupy a house belonging to the test-
ator's estate for eleven months after his death.
Her occupation was referable to her position,
and no notice was given to her that rent would be
charged. A Mahomedan childless widow is not by
Shiah law entitled to share in the value of land
forming the site of buildings that belonsed to her
husband's estate. Her one-fourth includes, as was
admitted, a share in the proceeds of sale of the
buildings. The text quoted in Book VII, C. IV,
p. 293, of Baillie' 3 MahomedanLaw, Imamia, is not
to be construed as referring only to agricultural
land. Aga M.ahomed Jaffer Bixdanim v. Kool-

SOM BiBEE. KOOLSOM BiBEE V. AOA MaHOMED

Jaffer Bindanim . . I. L. R. 25 Calc. 9

L. R. 24 I. A. 196

1 C. W. N. 449

26,

Construction of

the will of a talukhdar — Quantity of estate devised
— Unlimited gift of share of profits in a talukh-
dari estate binder Oude Estates' Act I of 1S69.
The will of a talukhdar, who left daughters, declared
that in respect of his estate, in its entirety and with-
out division, the engagement for the revenue should
be in the name of his eldest daughter's son and so
continue. Besides this grandson, another, the son
of his second daughter, as well as two other daugh-
ters of the testator, were to be equal sharers entitled
to the profits uf the estate. Of this estate the will
said, "The profits may be divided equally among
all the four persons." 'The talukh had been in-
cluded in the first and third of the lists prepared
in conformity with the Oude Estates Act, 1869.
On a question whether under the will the son of the
second daughter took a heritable interest, or only
a life-estate, to which it was argued the gift was
confined by reason of its being only of the profits:—
Held, that", in order to show that an unlimited gift
of the profits was less than a gift of the corpus,
some evidence should be found in the context, or
in the circumstances affecting tbe property, tending
to show restriction of the interest given. No such
evidence having been found here, the interest givea

11 Z

( 8035 )

DIGEST OF CASES.

( 8036 )

MAHOMED AN LAW— WILL— conW.

by the will was declared to be heritable in the case
of the testator's grandson, who was the son of his
second daughter. This grandson, dying soon after
the testator, had bequeathed his interest to the pre-
sent appellant, his father. Faiz Muhammad Khan
V. Muhammad Said Khan

I. L. R. 25 Gale. 816

L. R. 25 I. A. 77

2 C. W. 3Sr. 385

27.

Executor — Biqht to nominate

successor. Under ilahomedan law, an executor is
entitled to nominate a successor to carry out the
purposes of the will under which he was made an
executor. Hafeez-oor-rahman i'. Khadim Hos-
SEiN 4 N. W. 106

28. Khoja Mahome-

dan administrator with the will annexed — Execu-
tor, poivers of. The powers of a Khoja Mahomedan
executor or administrator, like those of a Cutchi
Mahomedan executor or administrator, seem to be
generally limited to recovering debts and securing
debtors paying such debts. Where a will gave the
executor full powers, with regard to the payment of
the testator's debts : — Held, that an administrator
with the will annexed, who was a Khoja Mahomedan,
succeeded to those powers, and, in a suit brought
against him as such administrator by an alleged
creditor of the testator's estate, represented all the
persons interested in the estate. Ahmedbhoy
Hubibhoy v. Vulleebhoy Cassumbhoy

I. L. R. 6 Bom. 703

29.

Infidel executor.

The appointment by the will of a Mahomedan of
an infidel executor does not invalidate the will.
All the acts of such an executor and his dealings
with the property under the will, until he is
removed and superseded by the Civil Court, are
good and valid. Qucere . Whether, if an applica-
tion were made by a person interested in the will to
have the infidel executor removed, and a proper
person appointed in his place, the application
would be granted. Jehan Khan v. Mandy

1 B. L. R. S. N. 16 : 10 W. R. 185

30.

Testator— Be-

quest to stranger of more than one-third of testator'' s
property — Consent of heirs — Alienation — Attach-
ment—Civil Procedure .Code (Act XIV of 1SS2),
s. 276. Where a Mahomedan, by his will, be-
queaths more than one-third of his whole property
to a stranger, the consent of his heirs to such be-
quest, required by the Mahomedan law, need not
be express ; it may be signified by conduct showing
a fixed and unequivocal intention. Such a consent,
although given after the property bequeathed has
been attached in execution of a decree against the
testator's heirs, is good, and does not amount to an
alienation such as is prohibited by s. 276 of the
Civil Procedure Code (XIV of 1882). Daulatram
Khttshalchand v. Abdul Kayum Narudin (1902)
I. L. R. 26 Bom. 497

31. Will— Heirs.

The power of disposition by will of a Mahomedan

1 MAHOMEDAN LAW— WILL— co«W.

testator being limited to a third of his estate, th

remaining two-thirds pass to his heirs, whatever th

I terms of the will may be. Tlie consequence c

a grant of probate of a Mahomedan will, thereforf

I is that the executor, when he has realised the estatf

' is a bare trustee for the heirs as to two-thirds ant

an active trustee as to one-third for the purnose

of the will. As the heirs claim adversely to th

[ will, the grant of the probate does not create an

I estoppel, so as to prevent them from putting fo;

I ward their claim as against a beneficiary under th

' will. MiRZA Kuratulain v. Nuzatud-dowl

I Abbas HossEiN Kha alias PearaSaheb (1905^

i d C. W. N. 95

i S.C. L. R. 32 I. A. 24

32. Will—Constr.

Hon of document. One Muhammad .\zim made
will, whereby, after making provision for his wido
and daughters, he divided his property betwe<l
his three sons giving to each certain villages. Tl
gift was prima facie absolute, but the will furth'i
provided that none of the sons should have a rig]
to alienate the property devised to him, and th;
on the death of one of the devisees without issue h
share should go to the surviving brothers or brothj
or his or their heirs. The testator died, leavii
surviving him three sons Abdul Qayum and AM
Kadir by one wife, and Abdul Karim by anothf
The will was assented to by the heirs of the test
tor, and the three sons entered into possession
j their shares. Then Abdul Kadir died, and his fi
brother, Abdul Qayum, took possession of his shai
Held, on a suit by the half-brother for possession
j half the share, that according to the Mahomed:
I law the three devisees took absolutely, and t
j plaintiff's claim could not be maintained. Abd

Karim Khan v. Abdul Qayum Khan (lOOfi'i
I I. L. R. 28 All. 34

- Signature — 1
that a docume

33. -^

tention. Where it was

found
purporting to be the will of a Muhammadan la.
was'^in fact drawn up in accordance with instructict
given by the testatrix to a vakil at a time when t[
testatrix was competent to make a will : — Held, tl:
such document v.'as a valid will notwithstanding '
absence of the signature of the testatrix. P"'
V. Filgate, L. B. S P. D. 171, Perera v. Perera, [I'J'
A. C. 354 : Allen v. Manning, 2 Add. 490, and
Tatjlor, 1 Hagg 641, referred to. Aur.iA Bif_i
Ata-ud-din (1906) . . I. L. R. 28 AIL /

34. Shias— Power of devise arnoi

Shias. Amongst Muhammadans of the Sbia s
a testator can leave a legacy to one of his heir?
long as that legacy does not exceed one-third of
estate, and such a legacy will be valid without
consent of the other heirs. Where, however,
legacy exceeds one-third of the estate it will not
valid to any extent, unless the consent of the ht
<'iven after and not before the death of the testa
has been obtained. Cherachom Vittil Ayisha A
Umah V. Valia Pudiakel Biathu Umah, 2 Mad-
C. 350, Keramatulnissah Bibee, 2 Morley'a Di'.

( S037 )

DICES I' OF CASESi

tfAHOMEDAN LAW— WIL.I,— conr/rf.

20, and Ranee Khujooroonnissn v. Roushun Jrhnn,
' R S I. A. :W, referred to. Fahmida Khaxum
." Jafri KnANi'v Mf>(»'S, . I. L. R. 30 Ali. 153

lAHOMEDAN LAW— WORSHIP.

— Ainil-hil-hndi>i — Hnnap,

ct-*Mo.i<iucd — Ri'jht of worship b'j differenl
c<5 — Dedication to particular seel. Maho-
ledans of the Amil-bil hadis or Wahubi sect
ive the right to worship in a mosque built

imarily for the use of and used, as a general
lie, by members of the Hanafi, sect, and

nnot be debarred from the exercise of such
zht on the ground of their views in the matter of
:ual being different. Quitre : Whether a special

;lication of a mosque to any particular sect of
'lomedan would be in accordance with Maho-

5dan Ecclesiastical law. Ata-ullak v. Azim-ulla,

L. R. 12 All. 494, followed. Queen-Empress v.

mzan, I. L. R. 7 All. 461 : Fazl Knrim v. Mania

■hh, 1. L. R. IS Calc. 44S, referred to. Abdus

BHAN V. Korean Ali (1008)

I. L. R. 35 Calc. 294
s.e. 12 C. W. N. 289

AIDEN.

See Hindu Law-

AINPRIZE.

-Tnheritaxce.
I. L. R. 31 Bom. 495

Power of High Court to issue

"' "it of. A writ of mainprize could only be issued
vere the party applyintr for it was bailable, and had
c ;red security, but bail had been refused ; it could
I be issued to a yjrisoner confined under Bengal
l^ulation III of 1818, which authorizes his deten-
ti absolutely and unconditionally, and gives him
r right to demand to be released on bail. The
vt is one which could be issued only on the
*-,Qmon Law side of the Court of Chancery in
Ii;land. The power of the Common Law side of
t, Court of Chancery to issue such writ was not
<:iferred on the Supreme Court, nor is there anv-
t ig in the Charter of the High Court to give that
Cji-t power to is-;ue it. Jn the maitir of Ameer
*|iN , . . . 6 B. L. R. 456

IJNTENANCE.

See Champerty.

See Civil Procedure Code, 1SS2. s. •1C^(^.
10 C. W. W. 1102

See Contract — Construction of Con-
tracts . . L. R. 28 I. A. 198

(See Decree — Form of Decree — Main-
tenance.

See Execution of Decree — Mode of
Execution — Maintenance.

See Execution of Decree — Application

roB Execution, and Powers of Court.

I. L. R. 26 Bom. 707

•See Future Maintenance.

MAINTENANCE— conW.

See Grant — Construction of Grants.

I. L. R. 26 Mad. 202

L L. R. 23 All. 194

See Hindu Law . I. L. R. 32 Calc. 234

9 C. W. N. 271, 651

10 C. W. N. 1

I. L. R. 36 Calc. 943

See Hindu Law — 1nhefiitan( i: — Ii.leoi-

TiMATR Children . I. L. R. 1 Bom. 97

4 W. R. P. C. 132 : 7 Moo. I. A. 18

I. L. R. 23 Bom. 257

I. L. R. 22 All. 191

See Hindu Law — Mainten vn( e.

See Hindu Widow . I, L. R 31 All. 161

13 C. W. N. 150

See Khoja Mahomedans.

I. L. R. 29 Bom. 85
iSee Limitation Act, 1877, Sen. II, Art.
128.

Sec Mahomedan Law — Maintenance.

See Maintenance, order of Ckuunal
Court as to.

See Malabar Law — Maintenance.

>See Parties — Parties to Suits — Main-
tenance, SUITS for.

See Pension . I. L. R. 30 Mad. 266

iS'ee Pensions Act.

I. L. R. 31 Bom. 512

See Res Judicata — Cause oi' Action —

Continuing Guarantee.

1. L. R. 27 Bom. 418
See Small Cause Court, Mofussil —

Jurisdiction — Maintenance.
,Sce Small Cause Court, Presidency

Towns — Jurisdiction — Maintenance.
See Transfer of Property Act (IV of

1882), ss. :59 AND 100.
See Will . I. L. R. 31 Mad. 283

claim of junior members for —

Chiefship of Tonk—

See Inheritance . 8 C. W. N. 81

com.prom.ise settlement —

See Grant . . 8 C. W. N. 105
,See Hindu Law . 8 C. W. N. 105

. future, attachment of—

See Attachment — Subjects of Attach-
ment— Maintenance.

order for —

Sec Jurisdiction of Civil Courts.

I. L. R. 30 Mad. 400

L Illegitimate child — Suit for

mainten i.ncc^Righl of suit— Order of Criminal
Court refusing maintenance, effect of — Criminai

11 z 2

( 8039 )

DIGEST OF CASES.

( 8040 )

M AINTENAN CE— cowW.

Procedure Code (Act V of 1S9S), s. 4SS— Civil
Procedure Code (Act XIV of 1882), s. 11— Hindu
Law. Under the Hindu law as well as upon
general principles, the father of an illegitimate
child is bound to provide for its maintenance.
A suit lies in the Civil Court for maintenance of an
illegitimate child notwithstanding an order of the
Magistrate, under s. 488 of the Criminal Procedure
Code, refusing to grant maintenance. Subad
Domni v. Kasiram Dome, 20 W. B. 58, and Suhhudra
V. Basdeo Dube, I. L. R. 18 All. 29, distinguished.
Ghana Kanta Mohanti v. Gerell (1905)

I. L. R. 32 Calc. 479
2. Babuana property, nature

of — Grant for maintenance — Power of grantee to
alienate — Kulachar of Darbhanga Raj. Babuana
property granted in accordance with the Kulachar
or family custom of the Darbhanga Raj is proper-
ty granted to the junior male members of the
family to be enjoyed by them in lieu of money
maintenance subject to the property rights of the
grantor and his ultimate claim as reversioner on the
extinction of the grantee's dependants in the male
line. The grantor remains responsible for the pay-
ment of the Government ^e^'enue and retains his
position as the recorded proprietor of the property
assigned. The grantee is bound to pay to the grant-
or such revenue which the latter pays into the
Collectorate, and the obligation can be enforced by
suit. The grantee has a right to alienate the pro-
perty subject only to the contingent interest of the
grantor. Rameswae Singh v. Jibender Singh
(1905) . . . . I. L. R. 32 Calc. 683
s.c. 9 CW. N. 567

3. Decree of Civil Court —

Maintenance — Effect of Civil Court decree in a suit
for restitution of conjugal rights upon an on-der for
maintenance passed by a Magistrate. A husband,
against whom an order had been passed by
a Magistrate under s. 488 of the Code of Civil
Procedure directing him to pay a monthly
allowance of R4-8 for the maintenance of
his wife, brought a suit against his wife for restitu-
tion of conjugal rights. The suit was compromised,
and a consent decree passed whereby the petitioner
was to^pay the respondent 1^4-4 per mensem and
to provide a house for her to live in near his own.
Held, that this decree of the Civil Court super-
seded the order of the Magistrate passed under s.
488 of the Code of Criminal Procedure. In re
Bulal-idas, I. L. R. 23 Bom. 4S4, followed. NuR
MuHAMiiAD V. Ayesha Bibi (1905)

I. L. R. 27 All. 483

4. Hindu widow— TFwZotc having

her husband'' s 'property in her hands — The proper-
ty sufficient to maintain her for soine years — Suit
for declaration and for arrears of maintenance —
Premature suit. The plaintiff, a Hindu widow,
filed a suit to recover arrears of maintenance and
to obtain a declaration of her right to maintenance.
At the time the suit was brought, she was found
to he in possession of a fund belonging to her hus-
band's family estate, which sum was sufficient to

MAINTENANCE-cowcW.

provide for lier maintenance for five years at t •
rate allowed by the lower Court : Held, that
cause of action had accrued to the plaintiff. At t
date when the suit w-as brought, the Court was n
in a position to forecast events or to anticipate t
position of affairs five years later. Dattatra .

WaMAN l. RUKHMABAI (lOOS)

I. L. R. 33 Boii. I'

MAINTENANCE, ORDER OF CRIM
NAL COURT AS TO.

See Appeal in Criminal Cases— Cki-
NAL Procedure Code.s.

7 W. E. Or. >

2 Ind. Jur. N. S. V

See Magistrate, jurisdiction of— '-

TRIAL OF Cases . . 1 C. L. E. V

See Res .Judicata — Adjudications, i

I. L. R. 5 AIL 2fe

See Revision — Criminal Cases— 5'-
cELLANEOus Cases . 5 Bom. Cr.l

See Witness — Criminal Cases— Pi-
sons competent or not to be \^^
nesses . I. L. R. 18 All. :?

I. li. R. 16 Calc. M

' 1. Jurisdiction — Criminnl^ jp-

cedure Code (Act X of 1882), s. 488—'' The J^-
trict Magistrate," meaning of the cxpresstc-
Complaint by a wife against her husband for vvi-
tenance. A complaint under s. 488 of the Crimal
Procedure Code (Act X of 1882) falls within le
cognizance of the Magistrate competent to_ err-
tam such complaint, and within the local limrof
whose jurisdiction the husband or the fath-jis
actually residing at the date of such compli^t.
The expresssion. "The District Magistrate a
Presidencv Magistrate, a SubdivisionalMagistce,
and a Masistrate of the first class " in s. 488 mna
the Magistrate of the particular district in wteh
the person resides against whom such a comp|nt
is made. In re the petition of Fakrudin

I. L. R. 9 BoiDlv

2 Criminal P<'f

dure Code (1882), ss. 488 and 177—Complair'
wife against her husband for maintenance— 1
summons— Jurisdiction of Presidency Mao
If a person neglects or refuses to maintain l
the proper Court to take cognizance of the coij
of the wife is the Court within the jurisdict
which the husband resides. ^ ^^^^^ Ca'c.)3a

In the matter of the petition of ^es-bow^ \^

Crimifi

dure Code, s. 488— Maintenance order passe"
port of Subordinate Magistrate. Under s.
the Code of Criminal Procedure, a Magistrate
first class may, upon proof of neglect or refus
person having sufficient means to support hi
order such person to make a monthly allowai.
the maintenance of his wife : a first class Magi|i

ate,

( 8041 )

DIGEST OF CASES.

( 8042

lAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— conul.

aving referred a complaint by a wife for mainten-
nce to a Subordinate Magistrate to take evidence
nd report upon the facts stated in the petition of
jmplainant, passed an order upon such report in
ae absence of the husband for payment of raainten-
nce : Held, that the order was illesal. Vexkata
. Paramma . . I. L. R. 11 Mad. 199

4. — - — Criminal Proce-

iire Code, s. 4SS — Liability of a Hindu not divided
am his father to maintain his wife. A Hindu
:0t divided from his father can be ordered to main-
'lin his wife under s. 488 of the Code of Criminal
rocedure. Queen-Empress u. Ramasami

I. L. R. 13 Mad. 17

Criminal Proce-

<tre Code {1882), s. 4S8 — Illegitimate children —
ight of a married woman to claim maintenance
<r her illegitimate children. A married woman is
'ititled, under s. 488 of the Code of Criminal Proce-
iire (Act X of 1882), to claim maintenance for her
legitimate children from the putative father. Ro-
vRio V. In'gles . . I. L. R.. 18 Bom. 468

6. — — — — — Criminal Proce-

in Code {1SS2), s. 4SS — Maintenance and custody

children — Moplahs — Personal law. The right

r children to be maintained by their actual father is

.statutory right, and the duty is created by express

iiactment independent of tlie personal law of the

'irties. If the children are illegitimate, the refusal

tlie mother to surrender them to the father is no

"id for refusing maintenance. If the children

ritimate, the question of the mother's right to

;i custody would depend on the question whether

iie parties are governed by Mahomedan or Maru-

takkatayam law ; because (i) if they are governed

• "^Tnhnmedan law, the mother may have the right

-tody until the children attain the age of seven

- : (\i) if by the Marumakkatayam law, it is

■u htf ul if the father could be held to have neglected

|s duty to maintain his children if they were actu-

^iy maintained by the karnavan of tlieir mother's

jrwatl who is bound by law to maintain them.

|ARITADAN POKKAR V. KaYAT BeERAX KiTTI

I. Ij. R. 19 Mad. 461

7. " Criminal Proce-

Code (Act V of 189S), s. 488— Usage in Malahar

'hr for maintenance of child of Sambandam. mar-

—MarumaH-ntayam law as observed by Nayar

: unity. The father of a child born during the

nuance of th*^ form of marriage known as sam-

ira, under the Marumakkatayam law as ob-

i! by the Nayar community in Malabar, is

to have an order made against him for its

tonance under s. 488 of the" Code of Criminal

(hire. Vexkatakrishna Patter ?'. Chim-

TTi . . I. L. R. 22 Mad. 246

1 - VTA Patter v. Kaliani Ammal

I. L. R,

Code,

Mad. 247

Criminal Proce-

s. 4SS — Failure to -pay process-fees.

MAINTENANCE, ORDER OF CRIMI
NAL COURT AS TO— ronW.

An application for maintenance under Criminal
Procedure Code, s. 488, should not be dismissed on
the failure on the part of the applicant to comply
with an order for payment of process-fees. In re
Ponnammal . , . I. L. R 16 Mad. 234

9. _ Criminal Proce-
dure Code, 1872, s. 636 — Former application refused
at another place. A Magistrate of the first class has,
as such, power to pass an order under the provisions
of s. 536 of the Code of Criminal Procedure, notwith-
standing he may not be empowered to take cogni-
zance of offences without complaint. The peti-
tioner, a resident of Cawnpore, was summoned to
Allahabad to answer an application for the main-
tenance of his children. He was ordered to make
them a monthly allowance. A somewhat similar
application had been made at Cawnpore, which was
rejected on the ground of jurisdiction. Held, that
the jurisdiction of the Magistrate who disposed of
the case was not barred by the circumstance of
the petitioner being resident at Cawnpore, or of
the former application having been rejected. In
the matter of the pttltion of Todd . 5 N. W. 237

10. Criminal Proce-
dure Code, s. 488 — Order for maintenance of wife —
Wife living apart from her husband for good cause —
Jurisdiction. Where a wife after a temporarj' ab-
sence from her husband on a visit, found on her re-
turn that he was living with another woman, and
thereupon left him and went to live in a different
district, and in that district applied for an order for
maintenance against her husband : — Held, that the
wife being justified in refusing to live with lier hus-
band and in choosing her own place of residence, the
nejilect of her husband to maintain her was an offence
within the jurisdiction of the appropriate Court at
the place where the wife resided. In re the petition
of Fakritdin.I. L. B. 9 Bom. 40, distinguished. In
the matter of the petition of Todd, 5 1\. If. 237,
followed. In the matter of the p't'tion of
DeCastro . . . I. li. R. 13 All. 348

11. __^ Procedure in maintenance

cases — Criminal Procedure Code, 1872, s. 636 —
Mode of recording evidence. Cases under Act X of
1872, s. 536, are not in the nature of summary trials,
but require the usual procedure laid down for sum-
mons cases, and that the evidence be recorded in full
as required by s. 335. Hcrkishore ;Mai.o r. Bha-
ROTi Jei.yani . . . 24 W. R. Cr. 61

12. — ■ Proceedings on

application for maintenance — Evidence, record of —
Summary trial — Critninal Procedure Code (Act X
of 1882), ss. 355 and 488 — Procedure. Proceedings
under Ch. XXXVI of the Code of Criminal Pro-
cedure cannot be conducted as in a summary trial
under Ch. XXII, but the evidence taken must be
recorded as provided by s. 355. Kali Dassi v.
DuRGA Charan Xaik . I. lu R. 20 Calc. 351

13. Proof of charge — "Due proof"

Criminal Procedure Cexie, 1861. s. 316, order

under. Before an order under s. 316 of the Code of

( 8043 )

DIGEST OF CASES.

8044 )

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

Criminal Procedure for the maintenance of a wife or
child can be passed against a person, the charge
must be legally proved against him, the words
" due proof " in that section meaning legal proof on
oath. GoNDA V. Pyari Doss Gossain

13 W. R. Cr. 19

MAINTENANCE, ORDER OF CRIM
NAIi COURT AS TO— contd.

• valid, and the offspring of such unions being enl
! tied to inherit. Queen v. Bahadur Singh

4 N. W. 12

14.

Nature of evi-

dence— Ground for making order. An order made
by a Magistrate under s. 310 of the Code of Criminal
Procedure must be founded upon proof in the same
proceedings, and not upon knowledge acquired by
him in some other case. Lopotee Domnee v.
TiKHA MooDAi . . . 8 W. R. Cr. 67

15.

Criminal Proce-

dure Code, 1872, s. 4S8— Evidence Act (I of 1872),
s. 120 — Bastardy proceedings — Order of affiliation —
Evidence — Competent witness. Bastardy proceed-
ings under the provisions of s. 488 of the Criminal
Procedure Code are in the nature of civil pro-
ceedings, within the meaning of s. 120 of the Evi-
dence Act, and the person sought to be charged is a
competent witness on his own behalf. Upon a sum-
mons, charging that the defendant, having sufficient
means, had refused to maintain his child by his nika
wife, whom he had subsequently divorced, the
Magistrate found that the marriage had not been
proved, but that upon the other evidence adduced
including the similarity of the features and the
name of the child with those of the defendant, who
did not appear before him during the proceedings,
but with whom he stated that he was well acquain-
ted, the child was the illegitimate child of the de-
fendant. He accordingly made an order for main-
tenance under the section : Held, that, under the
circumstances, he was wrong in taking into account
the similarity of the names and the features of the
child and the defendant, but as there was ample
evidence of the paternity, he was justified in mak-
ing the order he did, as it was immaterial for the
purpose of determining the liability of the defendant
to maintain the child, whether the mother had been
married to the defendant or not. NxxR Mahomed
V. BiSMTJLLA Jan . . I. L. R. 16 Cale. 781

16. _ Application by wife of

Christian who had reverted to Hinduism
and married again— Application for main-
tenance. The rejection of an application for main-
tenance made by the wife of a Christian who had
reverted to Hinduism and married a second wife
is not warranted by the decision in Anonymous
Case, 3 Mad. Ap. 7. Anonvmous Case

4 Mad. Ap. 3

17. Marriage, proof of— A'«r«o

marriage. Validity of—Legitiinaci) of offspring of
— Biglit to maintenance. A woman cf the Jat ca^te
applied under s. 316 of the (( de of ( rimiral Proce-
dure for an order of maintenance. As she had only
gone through the ceremony of " Karao " with her
alleged husband, the Joint Magistrate rejected her
application. His order was set aside on reference,
a " Karao " marriage an ong the Jats being held

18.

Ground for allowing mail

I tenanee — Inability to live together. The inal:
lity of a husband and wife to agree to live togetb
is no ground for decreeing a separate maintenan'
to the w ife. Jesmut v. Shoojaut Ali

6 W. R. Cr. 5

19.

Criminal Proc

d've Code, 1872, s. 536 — Separate maintenance *
ground of ill-treatment. The proviso to s. .'iSG
Act X of 1872 dots not authorize a Magistrate to f
tertain an application for separate maintenance,
the ground of ill-treatment, from a wife whose hu:
band has not neglected or refused to maintain h(
but who has of her own accord left her husband-
house and protection, and to order an allowance I
be paid to such wife on evidence of ill-treatmeil.
In the matter of the petition of Thomson

6 N. W. 2(

20. Crimi)wlPro,

dure Code, s. 4SS — " Cruelty.'' The word '" cruelty
in s. 488 of the Criminal Procedure Code is not n
cessarily limited to personal violence. Kelly
Kelly, L. K. 2 P. D. 59, and Tomkins v. Tomkii
1 S. ti- T. 168, referred to. Rukmin v. Pea)
Lal I. L. R. 11 All. 4S

21. Offer to maintain wife-

Criminal Procedure Code, 187-', s. -.36 — ReluX
to cohabit. An offer by a Hindu, having two wivt
to maintain his first wife by allowing her t-0 lit
in his house and by supplying her with grain j>
))e cooked and eaten separately, coupled with a -
fusal to live with her as husband and wife, does tt
come within the meaning of a proviso to s. 5.36 of <V
Code of Criminal Procedure, 1872. Marakkai .
Kandappa Goundan . I. L. R. 6 Mad. 35

22. Criminal Pn-

dure Code, s. 4SS — Question to be determined unr
that section — Maintenance of ivife — Wife's righ"
separate maintenance. Before a Magistrate nvi
an order under s. 488 of the Code of Criminal P;
dure (Act X of 1882) he must find that the ^
plainant is the ^\ife of the person from \\hora
claims maintenance, and that he has either neglecii
or refused to maintain her. The complain .t
claimed maintenance from her husband, G, unde;.
488 of the Code of Criminal Procedure. In *
course of the proceedings G pleaded that his nf-
r age with the complainant was not valid accorc g
to Hindu law, but offered to maintain her inps
house, as he had hitherto done. This offer was ''
accepted. The Magistrate held that the offer
not one within the meaning of s. 488 of the Coili
Criminal Procedure, because G denied the valii ■
of his marriage with the complainant, and refiM
to keep her with him as his wife : Held, that tire-
is no authority for the proposition that the wi
" as his wife " should be read into s. 488 of
Code of Criminal Procedure. Marakkai v. Ko

( 8045 )

DIGEST OF CASES.

{ 8046 )

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

appa Goundan, I. L. R. 6 Mad. 371, dissented
from. In re Gulabdas Bhaidas

I. L. R. 16 Bom. 269

23.

Criminal Proce-

dure Code (1S82), s. J8S— " Adulter i,"— Penal Code
,(Act XLV of 1860), s. 497— Refusal of wife to
live with hiisband — Criminal Procedure Code, v. 4.
A wife petitioned for maintenance for herself and
.^hild again.st her husband under s. 488 of the Crimi-
nal Procedure Code. The husband did not refuse to
mairtain his wife, but tlxe petitioner refused to live
Avith him, as he kept a concubine : Htld, that the
ivord " adultery " in s. 488 of the Criminal Proce-
'lure Code must, by virtue of s. 4 of the Code, be
.^nstrued with reference to the definition of the
'erm in s. 497 of the Penal Code. Consequently a
lusband's immorality, which does not amount to
.'adultery" or involve the degradation of a mar-
ried woman being brought into the society of a con-
':ubine, is not sufficient ground for a wife's refusal

0 live with her husband. An offer to maintain a
life must be an ofifer to maintain with the consi-
ieration due to her position as a wife. Maralckal
i. Kandappa, I. L. R. 6 Mad. 371, cited. Per
Jest, J. — It is very doubtful if the framers of

■ ,. 488 of the Code of Criminal Procedure intended
ie word " adultery " as used therein to have tho
'mited meaning given to it in the Penal Code. The
Tong done to the wife is in no way ali'ected by the
ircumstance of her husband's concubine being
larried or unmarried, or, in case of her being
larried, whether it is with or without her husband's
Dnsent or collusiun that she is living in such con-
ijbinage. In face, however, of s. 4 of the Criminal
;iocedure Code, no other interpretation of the term
! adultery " is possible than the limited interpreta-
ion contained in the Penal Code. Quken-Empress

1 Majjnatha Achari . I. Ij. R. 17 Mad. 260
■ 24. Criminal Pro-
cure Code {1S22), *. -iss and s. 4 — Adidtery.
idultery on the part of the husband, not being such
(iultery as wouid be punishable under the Penal
|3de, may nevertheless constitute sufficient cause
Ir the wife separating from her husband, and
!«ble her to claim maintenance under the Criminal

'dure Code, s. 488. Queen-Empress v. Manna-
I'hari, I. L. R. 17 Mad. :?' 6*, dis ented from,
i APALLi Appalamma V. Gantapalli Yellayya.

F.RIANAY.\GAM V. KRISHNA ChETTI

j I. L. R. 20 Mad. 470

2-5. Refusal by Hindu wife to

with husband for sufficient reason—

nul Procedure Code, 1822, s. J\a — Second
■iijehij husband. A Hindu wife having applied
!i order for maintenance against her husband,
lushand offered to maintain her in his house,
'he offer was refused on the ground that the
I lid had, without cause, married a second wife.
Magistrate ordered the husband to pay a ]
■ Kly sum by way of maintenance : Held, that
ut that the husband had married a second wife
■ - not a sufficient reason, within the meaning of ,

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO-contd.

s. 488 of the Code of Criminal Procedure to justify
the order. Akumdgam v. Tulukaxam

I. L. R. 7 Mad. 187

26. Wife not permitted to live

with husband— CriTOinu/ Procedure Code, 1872,
s. -',36. In a case in which a Magistrate made an
order under s. 53G, Criminal Procedure Code, 1872,
directing the husband to pay a monthly sum for
the maintenance of his wife, the High Court set aside
the order on the ground that it appeared that the
husband had not been called upon to maintain the
wife, who had up to that time lived w ilh her father,
and that the father had refused to let the wife
live with her husband without receiving money from
him. .An order under s. 536 cannot be made by a
Magistrate of the second class. Somree r. .Jitun
SoxAR 22 W. R. Cr. 30

Z7. Ground for cancelling order

— Proof of adultery. It is open to a husband upon
whom an order to make an allowance for the main-
tenance of his w ife has been made under s. 'UO, Cri-
minal Procedure Code, 1SG9, after such order has
been made to prove that his wife is living in adultery
and upon such proof a Magistrate is justified in can-
celling such order for maintenance. Chaku v.
IsHVAR Bhudar ... 8 Bom. Cr. 124

28.

Criminal ProcC'

dure Code, ss. 488, 490 — Order for maintenance of
wife — Application by wife to enforce order — Pka
that applicant had been divorced — Duty of Court
to which application for enforcement is made.
Where a person in whose favour an order under s.
488 of the Code of Criminal Procedure has beien
made takes that order before a Magistrate, and the
Magistrate finds that he has jurisdiction owing to the
residence of the person affected by the order, and
is satisfied as to the identity of the parties and the
non-payment of the allowance due, it is his duty
to enforce the order for maintenance. It is no part
of the duty of a Magistrate on such an application
as above-mentioned, viz., an application under s.
490 of the Code of Criminal Procedure, to entertain
a plea by the party against whom the order is
sought to' be enforced to the effect that he has di-
vorced the applicant, and is therefore no longer
liable to pay maintenance. Ztb-un-nissa v. Mendu
Khun, All. Weekly Ao/es {1S8J)2J, dissented from.
Mahbuban v. Fakir Bakhsh

I. L. R. 15 All. 143

29. Alteration or withdrawal

of order-^Di'wrce — Criminal Procedure Code
(Act X of 1S72), s. 53^. An order for maintenance
had been made under s. 536, Act X of 1872, against
a Mahomedan, and came before the Magistrate on
petition from the wife for the purpose of being en-
forced. The Magistrate called on the husband
to show cause w hy the order should not be enforced,
and tho husband appeared, and in the Magistrate's
presence divorced his wife by words sufficient by
Mahomedan law for that purpose : Held, that
the Magistrate should have enforced the older
until application was made by the husband

( 8047

DIGEST OF CASES.

8048

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

under s. 537 for alteration of the order owing
to the " change of circumstances " which had
occurred. The husband was bound to pay main-
tenance up to the time of divorce. Qii<jere : Whether
what occurred was such a change of circum-
stances within s. 537 as would justify an
alteration or withdrawal of the order. Nepoob
Atjeut v. Jukai

10 B. L. R. Ap. 33 : 19 W. R. Cr. 73

30.

Presidency

Magistrate's Act {IV of 1S77), ss. 234, 235— Effect
of divorce on maintenance order. A Presidency
Magistrate is competent to stay an order for main-
tenance granted under s. 234 of Act IV of 1S77,
and to refuse to issue his warrant under the 3rd
clause of that section, and to try all questions raised
before him which affect the right of a woman to
receive maintenance. There can be no distinction
raised between a dissolution of marriage obtained
under the Indian Divorce Act and a dissolution
obtained under the Mahomedan law. It is only on
proof of the existence of the relationship of husband
and wife that a Magistrate can make an order under
s. 234 granting maintenance to a wife ; but where
proof has been given that such relationship has
ceased to exist, he may stay an order already made
under that section. Abdt'r P^ohoman v. Sakhina.
SoBHAN V. Shubraton. Ossuff V. Shama

I. L. R. 5 Calc. 558 : 5 C. L. R. 21

31.

Effect of maintenance

order on right of divorce — Presidenaj Magis-
trates' Act (IV of 1877), s. 234 — Borah Mahomedan
sect — Husband and wife. An order made under s.
234 of Act IV of 1877 by the Presidency Magistrate
directing a Borah Mahomedan husband of the
Imami sect to pay a sum monthly for the main-
tenance of his wife belonging to the Hanafi sect does
not deprive the husband of his right to divorce
his wife, and after such divorce the Magistrate's
order can no longer be enforced. In re Abdul Ali
Ishmailji . . . I. L. R. 7 Bom. 180
Also so held with regard to an order under s. 10 of
the Police Amendment Act, XLVIII of 1860. In re
Kasam Pirbhai ... 8 Bom. Cr. 95

32.

Criminal Pro-

MAINTENANCE, ORDER OF CRIM]
NAL COURT AS TO— contd.

33. Mahomedan la

— Shiah school — Mutta marriage — Gift of term-
Divorce. In a suit brought by a Mahomedan of tl
Shiah sect against his wife, belonging to the san,
persuasion, for a declaration that the relationshi'
of husband and wife had terminated, and that \
was not liable to pay maintenance to her which 1
had been directed to do by an order passed under tl,
provisions of the Code of Criminal Procedure, c
the allegation that the marriage was of a mutij
form, and that he, on the 22nd February 1882, hsi
made hibba-i-muddat (gift of the terra) of wha
ever period there then might remain unexpire*]
the wife pleaded inter alia that her husband was n'
competent to dissolve the marriage tie within 1'
contracted period without her consent, and th;
if under the Mahomedan law the consent was u
necessary, the Court was bound, in administeri)
justice, equity and good conscience, to modify tl
strict law in this respect : Held, that although t!
Court could not grant an injunction restraining t:
Magistrate from enforcing the order for maint'C
ance, the plaintiff was entitled to ask the Magistra
to abstain from giving further effect to his ord
after the Civil Court had found that the relationsli'
of husband and wife had ceased to exist. Mah
MED Abid Ali Kumar Kadar v. Ludden Sahiba
I. li. R. 14 Calc. 2'

cedure Code (Act X of 1872), s. 536— Mahomedan
law — Divorce — ''Iddat.'" An order for the main-
tenance of a wife, passed under Ch. XLI of Act
X of 1872, becomes inoperative, in the case of a
Mahomedan, by reason of his lawfully divorcing his
wife, and thus putting an end to the conjugal rela-
tion, but it does not become so before the expiration
of the divorced wife' s " iddat." Ahdur Rohoman v.
Sahhina, I. L. R. 5 Calc. 558 ; In re Kasam Pir-
hhai, 8 Bom. Cr. 95 ; and Luddun Sahiba v.
Kamar Kadar, I. L. R. 8 Calc. 736 ; Madras High
Court Proceedings, 2nd December 1879, referred to
and followed. In the matter of the petition of Din
Muhammad . . I. L. R. 5 AIL 226

See Laraiti v. Ram Dial . I. L. R. 5 All. 224

34.

Criminal Pre

dure Code (1SS2), ss. 4S8, 489, and 490— Plea ,^
divorce in answer to an application for enforcem(\
of an order for maintenance of a ivife. Where {
answer to an application for enforcement of an orcf
under s. 488 of the Code of Criminal Procedure fi'
the maintenance of a wife, the party against whcji
such order is subsisting pleads that he has lawfu;
divorced his wife, and therefore the order can )
longer be enforced, it is the duty of the Court he|-
ing^the application to entertain and consider srji
plea, and if it find the plea established, to decli!)
to enforce the order for any period subsequent p
the date when the marriage ceased to subsp
between the parties. In such case, where the parte
are Mahomedans, the marriage will be deemedb
subsist until the expiration of the iddat. ^ In s. f
of the Code the " change in circumstance " referjl
to is a change in the pecuniary or other circd-
stances of the party paying or receiving the a\\([-
ance which would justify an increase or decre^
of the amount of the monthly payment origmf|!?
fixed, and not a change in the status of the pari^
which would entail a stoppage of the allowance, jo
held by Aikman and Blennerhasett, J J. (dfs
tiente Knox J.). In the matter of the petition of
Muhammad, I. L. R. 5 All. 226 ; Abdur Rohan
V. Sakhina, I. L. R. 5 Calc. 558 ; Zeb-un-nja
V Mendu Khan, Weekly Notes All. (1885) ;
In re Kasam Pirbhai, 8 Bom. 95 : In re Abdul
Ismailji, I. L. R. 7 Bom. 180 ; Mahomed AM
Kumar Kadar v. Ludden Sahiba, I. L. R- If
276 : and Baji v. Nawab Khan, 29 Pan). Rec.
referred to. Nepoor Aurut v. Jurai

10 B. L.

( 8049

DIGEST OF CASES,

( 8050 )

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

A p. 33, dissented from. Mahhhuhan v. Fakir
Bakhsh, I. L. M. 15 All. 143, overruled. Abu
iLYAS V. Ulpat Bibi , . I. L. R. 19 All. 50

35. Effect of decree of Civil

Court on order for maintenance — Decree in
mii for reditution of conjugal rigld.^. An order
for maintenance ceases to have any efEect after the
order of a Civil Court in a suit for restitution of
conjugal rights by the husband giving him a decree.
Ltjtpotee Doomony v. Tikha Moodoi

13 W. R. Cr. 52

36. — — Criminal Proce-

.dure Code {Act X of 18S3), s. 488— Maintenance

■^rAer obtained by a wife against husband — Subsequent
uecree for restitution of conjugal rights obtained
byhusbani — Effect of such decree on previorts order
of maintenance. A decree of a Civil Court for res-
titution of conjugal rights supersedes any previous
order of a Magistrate for maintenance, if the wife
•ihould persist in refusing to live with her husband.
A Magistrate ought to cancel a previous order of
maintenance made by him, or rather treat it as deter-
mined, if the wife failing to comply with the decree
for restitution refuses to live with her husband.
In re Bulakidas . I. L. R. 23 Bom. 484

37.

Order as to pa-

Wmity of child. The order of a Civil Court as to
Ithe paternity of a child was held to have no effect on
'i contrary order of the Criminal Court making the
putative father, whom the order of the Civil Court
'lad exonerated, liable for maintenance. Subad
DoMNi V. K.ATIRAM DoME . 20 W. R. Cr. 58

38. Effect of decree of Civil

3ourt on right to apply for maintenance —
'Decree of Civil Court refusing to enforce agreement
'or maintenance. A decision of the Civil Court,
I'efusing to enforce a contract or agreement against
I man for the maintenance of a woman, cannot con-
lilude either the woman from applying, or a Magis-
iratefrom making an order, under s. 316 of the.Code
■)f Criminal Procedure. 1861, for the maintenance of

heir illegitimate daughter. In the matter of the
xtition of Meislebach . 17 W. R. Cr. 49

39. Criminal Proce-

Coie (1882), s. 488 — Order for maintenance of

. (ffect on, of declaratory decree of Civil Court.
"1 order for the maintenance of a wife duly made
|indcr s. 488 of the Code of Criminal Procedure
laniiot be superseded by a declaratory decree of a
i^ivil Court to the effect that the wife in whose
avour such order has been made has no right to
'nnintenance. Subad Domni v. Katiraur Dome, 20
R. Cr., referred to. Sfbhudra r. Basdeo
E .... I. L. R. 18 All. 29

±0. Grounds for releasing per-

jion from obligation to support illegitimate
lihild. The circumstance that the father of an ille-
gitimate child is sixteen years old only, and still
jtudying at school, is not by itself a sufficient reason
:or holding him excused from the necessity of pro-

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

viding for his illegitimate offspring. The law re
quires that the person on whom the order of main-
tenance is issued must have sufficient means to sup-
port the child. Queen v. Roshux Lalt,

4 N. W. 123

41. Willingness of husband to

take charge of children on conditions — Cri-
minal Procedure Code {Act XXV of 1801). s. 316.
On an application by a wife for maintenance under
s. 316, Act XXV of 1861, the Magistrate held she
had failed to establish her right of maintenance
under that section, but he awarded maintenance to
her for her two infant children, though the husband
stated he was willing to take charge of them, pro-
vided they lived with him : — Held, that the order
was illegal. Panchudas v. Shudhamayi

8 B. L. R. Ap. 19 ; 16 W. R. Cr. 72

42. Order for maintenance of

unborn child — Criminol Procedure Co'le, 1861,
.". 316. No order can be passed under s. 316 of the
Criminal Procedure Code, 1861, for the maintenance
of an unborn child. Laklee v. Bunskr Ditchit

3 N. W. 70

43. Order with reference to hus-
band's means — Criminal Procedure Code, isijl,
s. 317. The proceedings of a Magistrate awarding
the payment of a certain sum of money per mensem
for maintenance with reference to the means of the
husband were held to be legal. If the husband is
aggrieved, he ought to apply to the Magistrate under
s. 317, Code of Criminal Procedure. Goyamoxey
Surinee v. Mohesh Chuxder Shaha

9 W. R. Cr. 1

44.

Prospective order for in-

creased maintenance as child gets older-
Criminal Procedure Code, 1S61, s. 316. An order
made under s. 316 of the Criminal Procedure Code,
fixing a sum for the maintenance of a child, contain-
ing a prospective order for an increase of the amount
awarded as the ciiild grows older, is unauthorized by
the law. MuxGLO t'JuMXA Dass . 2 N. W. 454

45. - Order at progressively
increasing rate — Criminal Procedurt Cclc {Act
X of 1882), ss. 488, 4S9. A Magistrate has no
power, under s. 488 of the Code of Criminal Proce-
dure, to make an order for maintenance at a progres-
sively increasing rate. He may, however, under
s. 489 from time to time alter the rate of the
monthly allowance granted as maintenance under
s. 488. Upen-dra Nath Dhal r. SornAMivi Das'?!

I. L, R. 12 Calc. 535

46. Criminal Proce-
dure Code, s. 489 — Maintenance, variation in rate
of. A Magistrate has no power under Criminal
Procedure Code, s. 489, to make an order for main-
tenance at a progressively increasing rate, but the
fact that the child has grown older might constitute
a change in the circumstances calling for a variation
in the rate. In re Ramayee

I. L. R. 14 Mad. 398

( 8051

DIGEST OF CASES.

( 8052 )

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

47. Security for performance

of order — Criminal Procedure Code, 1872, s. 536
— Power to take security for prevention of default.
In making an order for maintenance undpr the
Code of Criminal Procedure, s. 536, a Magistrate has
no power to take security for possible default.
Kanoo Soudagur v. Alaruxdee Bewa

24 W. R. Cr. 72

48. Agreement by husband to

maintain wife — Criminal Proced"re Code, 1S72,
s. 536. An agreement by a husband to maintain
his wife by giving her a house and jewels, and by
delivering to her annually a certain quantity of
grain and money, cannot be made the subject of an
order under s. 536 of the Code of Criminal Procedure,
1872, nor enforced under the provisions of tliat sec-
tion. ViRAMMA V. NaRAYYA

I. L. R. 6 Mad. 283

49. Question as to right of

guardianship — Criminal Procedure Code, 1S72,
ss. 536, 53 S — Custody of child. In determining
questions under Ch. XLI of Act X of 1872, as to the
maintenance of wives and families in certain cases,
a Magistrate has no power to enter into any question
as to the lawful guardianship of a child. Lal Das
V. Nekunjo Bhaishiaki . I. L. R. 4 Calc. 374

50. Effect of order for main-
tenance— Suit for maintenance. S. 316 of Act
XXV of 1861 is no bar to a suit by a wife against
her husband for maintenance. Lallah Gopeenath
V. Jeetuu Koer .... 6 W. R. 57

51.

Criminal Proce-

dure Code, s. 48S — Release of claim for mainte-
nance. Where an application is made' to a Magis-
trate to enforce an order for maintenance, passed
under s. 488 of the Code of Criminal Procedure, such
Magistrate is not bound to enforce the order if the
defendant proves that the claim for maintenance has
been released. Rengamma v. Maha:mmad Ali

I. L. R. 10 Mad. 13

52. Mode of enforcing order

for accumulated arrears of m.aiiatenance —
Criminal Procedure Code, 1S72, s. 536. There is
nothing in s. 536 of the Criminal Procedure Code,
1872, to render the levy of accumulated arrears of
maintenance bv a single warrant illegral. Axony-
Mous . . . . .7 Mad. Ap. 37

53. "Warrant for collection of

arrears of m.aintenance — Criminal Procedure
Code, 1S72, ss. 536, 53S. Notwithstanding the
provisions of s. 538 of the Code of Criminal Proce-
dure, the Magistrate who has made an order for
maintenance under s. 36 may issue a warrant for
collection of arrears of maintenance when tlie hus-
band is out of his jurisdiction. Queen >\ Karfi-
Papayamjia . . . I, L. R. 4 Mad. 230

54. Mode of enforcing order —

Criminal Procedure Code, 1869, s. 316. The issue
of a warrant under s. 316 of the Code of Criminal
Procedure is permissible for every breach of an order
of maintenance made under that section, but there

MAINTENANCE, ORDER OF CRIMI
NAIi COURT AS TO— contd.

seems no ground for saying that a defendant can gel
out of his liability for any payment by the failure t(
issue a warrant for the levy of that payment. Th*
result of issuing it for an aggregate of payments v.
that one month's imprisonment would alone b(
awardable in default. Anonymous

6 Mad. Ap. 2S

55. Imprisonment for default

of payment — Criminal Procedure Code, ?. 4S8—
Subsequent offer to pay — Sentence ahsolute. ^
sentence of imprisonment awarded under s. 488 o
the Code of Criminal Procedure for wilful neglec;
to comply with an order to pay maintenam^e isabso
lute, and the defaulter is not entitled to release upoi
payment of the arrears due. Biyacha v. MoiDl
KuTTi . . . . I. li. R. 8 Mad. 7C|

56. Criminal Proce\

dure Code {lSS-2), s. 4SS—Breach of order foi
monthly allowance — Sentence absolute — Husbawi
and wife. A wife, who had obtained an order fol
maintenance against her husband on the 1st Augus
applied to have it enforced with respect to three
months then in arrears. A distress warrant havinj
issued without anything being realized, the husbanc
was brought up under a warrant for his arrest. Thil
husband, previous to his arrest, petitioned the Cour
to be allowed to prove his altered circumstances and
his inability to pay. On that petition an order waj
passed that he could produce the evidence after the
amount due was paid. On being brought up, and
not paying the amount due, an order was made com
mitting him for one month under s. 483 of the CodJ
of Criminal Procedure. The day following his comi
mitment his brother tendered the money and askefl
for his release. The Magistrate took the money, bu
refused to order the release, holding that under th
section the punishment of imprisonment was absd
lute and not dependent on payment of the main
tenance allowance. The husband moved the Higl
Court, contending (i) that the order of imprison!
ment should not have been passed vrithout an oppoi
tunity being given him of proving the change in hi
circumstances which would show that the order t
pay required modification ; (ii) that the section di
not authorize imprisonment unless wilful neglec
to comply with the order be proved ; and (iii) tha
the imprisonment authorized by the section bein
only a mode of enforcing payment, he should hav
been released on the amount being paid : Held, tha
the first ground was untenable, inasmuch as th
order for mainter.a: ce carries with it all its prope
consequences as long as it remains in force. Heh
also, that, before an order for imprisonment und(
the section can be passed, it must be proved that th
non-payment of the maintenance is the result c
wilful nedigence, and that there being no evidenc
of that in the case, the order was bad. Held, fui
ther, that the imprisonment which can be awarde
under the section is not a punishment for contemT
of the Court's order, but merely a means of enforcin
payment of the amount due, and that, upon th
payment of that amount being made, the husban

DIGEST OF CASES.

( 8054 )

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— contd.

was entitled to be released. Biyacha v. Moidin
Kntti, I. L. R. S Mad. 70, di.ssentcd from. Sm-

HESWAR TeOR V. GyANADA DaSI

I. L. R. 22 Calc. 291

57. Criminnl Proce-
dure Code {1S82), s. 488. The impri.sonment pro-
vided by R. 488, Criminal Procedure Code, in de-
fault of payment of maintenance awarded, is not
limited to one month. The maximum imprison-
ment that can be imposed is one month for each
month's arrear, and if there is a balance represent-
ing the arrear for a portion of a month, a further
term of a month's imprisonment may be imposed
I for such arrear. Biyacha v. Moidin KuHi. I. L. E.
^ Mad. 70, approved of. Allapichai RAvrrnAR
<•. MoHiDix BiBi . . I. L. R. 20 Mad. 3

58. Criminal Proce-
dure Code (Act X of 1882), s. 488— Warrant of
commitment — Procedure. An order of commit-
ment to prison for default in payment of a wife's
maintenance allowance cannot be made without
proof that the non-payment was due to wilful neglect
of the person ordered to pay. Sidhestvar Teor v.
Gyanada Dasi. I. L. P. 22'CaIc. 291, followed.
The law contemplates a single warrant of commit-
ment in respect of the arrears due at the time of its
lissue. ^^ here six months' arrears were due, an
order for separate warrants of commitment award-
ing a separate sentence of imprisonment of one
month on each warrant was therefore held to be bad
in law. As to the mode of computing the term of
imprisonment, the case of Allapichai Baruthar v.
ilohidin Bibi, I. L. R. 20 Mad. 3. followed. BniKU
Khan- r. Zahurax . I. L. R. 25 Calc. 291

59. — — Criminal Proce-

■iure Code, s. 488 — Wife — Breach of order for
monthly alloivance — Warrant for leaving arrears
j'or several months — Imprisonment for allowance
Wmaining unpaid after execution of warrant —
\General Clauses Consolidation Act {I of 1868), s. 2,
''-l- 18 — "Imprisonment.'' Where a claim for accu-
Imulated arrears of maintenance for several months
jirising under several breaches of an order for main-
'tenance is dealt with in one proceeding, and arrears
levied under a single warrant, the Magistrate acting
linder s. 488 of the Criminal Procedure Code has no
ipower to pass a heavier sentence in default than one
Month's imprisonment, as if the warrant only relate
j 0 a .oingle breach of the order. Per Edge," C.J. —
[)• 488 contemplates that a separate warrant should
issue for each separate monthly breach of the order.
|°er Straight, J.— The third paragraph of s. 488
|)ught to be strictly construed, and, as far as possible,
jonstrned in favour of the subject. Under the sec-
tion, a condition precedent to the infliction of a term
)f imprisonment is the issue of a warrant in respect
>f each breach of the order directing maintenance,
|.nd where, after distress has been issued, milla bona
|S the return. The section contemplates one war-
|ant, one punishment, and not a cumulative war-
lant and cumulative punishment. Also per

TRAiGHT. J.— With reference to s. 2. cl. 18. of the

MAINTENANCE, ORDER OF CRIMI-
NAL COURT AS TO— concld.

General Clauses Act (I of 1868). " Imprisonment "
in s. 488 of the Criminal Procedure Code may be
either simple or rigorous. Per Oldfield. J. —
A claim for accumulated arrears of maintenance
arising under several breaches of order may be
dealt with in one proceeding, and arrears levied
under a single warrant. Queex-Empress v.
Narain . . . . I. L. R. 9 All. 240

60.

Agreement between the

parties subsequent to the order for main-
tenance— Criminal Procedure Code, •?•?. -I9S, 499,
490 — Such a</reerncnt no bar to enforcement of order
for maintenance, so long as such order subsists.
Where an order for maintenance is passed under
s. 488 of the Code of Criminal Procedure, and the
parties afterwards come to an agreement between
themselves as to what is to be paid, the existence
of such agreement will not of it.self be a bar to
the enforcement of the order for maintenance ;
but it will be the duty of the party chargeable,
if he wishes to be relieved from the payment of the
maintenance allowance, to bring such settlement
to the notice of the Court and obtain a cancellation
of the order for maintenance. Rangamma v. Muham-
mad Ali. I. L. R. 10 Mad. 13, not followed.
Prabhu Lal v. Rami (1902)

I. L. R. 25 All. 165

61.

Application for caneeiment

of order for maintenance — Criminal Proce-
dure Code, s. 4S8. Where it is sought, under s.
488, sub-ss. (4) and (-5), of the Code of Criminal
Procedure, to have an order passed under sub-s. (1)
of s. 488 set aside, such application must be made
to the Magistrate who passed the original order, or
to his successor in office, who. and who only, has
jurisdiction in the matter. Bhagwaxia r. Sheo
Charax Lal (1903) . I. L. R. 25 AU. 545

62. — Maintenance of

child — Power to cancel an order for maintenance.
Held, that where an order has once been passed by
a competent Court under s. 488 of the Crimmal
Procedure Code for the payment of maintenance for
a child, the only power that exists of modifying
such an order is that given by s. 489 of the Code.
BuDHXi V. Dabal (1905) . " I. L. R. 27 All. 11

63. " Living in adultery " —

I Criminal Procedure Code (V of 18:>S), s. 4ss (i)_

Maintenance. Held, that the fact that a woman,

! who applied for an order for maintenance against

! her husband, had given birth to an illegitimate

child some two years before the "date of her

application, was not a reason for refusing to make

an order for maintenance, it being found that since

that time she had been living with her parents and

I leading a chaste and respectable life. Empress v.

! Nandan, All. Wcehly Xotes I/SSl') 37 : Petition of

\ Kashi Sheodia'a, All. Weekly Notes (1881) :^ and

I Empress v. Daulat, All. Weekly Notes {1881)

ll--', referred to. Kallc r. Katx-^ilia (1904^

I. L. R. 26 All. 326

( 8055 )

DIGEST OF CASES.

( 8056 )

IIAJORITY ACT (IX OF 1875).

See Majoeity, age of.

I. L. R. 7 All. 490

s. 2—

See Majority, age of.

I. L. R. 7 All. 763

Minor — Maho-

medan law — Capacity to contract — Cavacity to sue —
Civil Procedure Code, 1877, Ch. XXXI, ss. 44')-4U.
S. 2 of Act IX of 1875 refers only to the capa-
city to contract, which is limited by s. 11 of the
Contract Act, and not to the capacity to sue, which
is purely a question of procedure and regulated by
the Civ'il Procedure Code, Ch. XXXI. Puyikuth
Ithayi Umah v. Kairhirapokil Mamod

I. li. R. 3 Mad. 248

2. cl. (b) — Minor, custody of —

Guardian — Change of religion. A Brahman boy,
sixteen years of age, having left his father's house,
Tvent to>nd resided in the house of a missionary
•where he embraced Christianity and was baptised.
In a suit by the father to recover possession of his
son from the missionary : — Held,(\) that the ques-
tion whether the boy was a minor was to be decided,
not according to Hindu law, but by Act IX of 1875 ;
(ii) that"? the claim as not affected by s. 2, cl. (b),
of that Act ; (iii) and that the father was entitled to
a decree that his son should be delivered into his
custody. PvEABE V. Krishna

I. L. R. 9 Mad. 391

ss, 2 and 3—

See Paesis . I. L. R. 22 Bom. 430

s. 3—

See Act XL of 185S, s. 3.

I. L. R. 8 Calc. 714
I. L. R. 9 Calc. 901

See GuAEDiAN and Ward.

I. L. R. 29 All. 672
See Guardians and Wards Act.

I. Ii. R. 31 Bom. 590
See L:?TTERS of Administration.

I. L. R. 21 Calc. 911

See Majority, age of.

I. L. R. 3 All. 598

See Minor — Custody of Minors.

I. L. R. 12 All. 213

I. L. R. 36 Calc. 768

13 C. W. N. 643

TeMamentary

guardian obtaining probate — "Guardian'" appointed
by Court. Where a person who by his father's will
is made guardian of hi'^ minor brother applies for
and obtains probate of the will, the grant of probate
only establishes the authority of his appointment.
Such a guardian is not one " appointed by a Court
of Justice " within the meaning of cl. 1, s. 3, Act IX
of 1875, and the mmor attains majority on his com-
pleting the age of eighteen year". Jocesh Chun-
iDER Chuckerbutty V. Umataba Debya

2 C. L. R. 577

MAJORITY ACT (IX OF 1875)— cow^i.

— s. 3 — contd.

2. Age of majority

— Order of Court under Act XL of 1S-)S appointing
guardian, effect of. In a suit in Calcutta against
one of the makers .of a joint promissory note exe-
cuted in Calcutta on the 9th June 1877, the defend-
ant, who Mas a Mahomedan, pleaded infancy. It
appeared that the defendant was born on the 22nd
July 1857 ; that, by an order of a competent Court,
dated 6th November 1865, the father of the defend-
ant was, under Act XL of 1858, appointed guar-
dian of his property, portion of which was situated
in the mofussil -.—Held, that the effect of the order
under Act XL of 1858 was to extend the minority
of the defendant to the age of eighteen years, and
that consequently he was a minor on the 22nd June
1875, when the Majority Act IX of 1875 came in
force ; and therefore, under s. 3 of the latter Act,
his minority was further extended to the age of
twenty-one years, so that on the date of the execu-
tion of the note the defendant was still a minor.
Raj Coomar Ray v. Alfuzudin Ahmed

8 C. L. R. 419

3. — Minor — Guardian

ad litem. The appointment of a guardian ad litem
is sufficient to make the minor party subject to s. 3,
Act IX of 1875, and to constitute his period -of
majority at twenty-one, at any rate so far as relates
to the property in suit, notwithstanding that such
minor would but for such appointment have at-
tained major ty at eighteen. Suttya Ghosal v.
SuttyanundGhosal . I. Ii. R. 1 Calc. 388
4. Guardian — Mi-
nor— Disability of infancy ; its continuance-
Period of minority, how affected by Act XL of iSoS.
When a guardian has once been appointed to a
minor under the provisions of Act XL of 1858, the)
disability of infancy will last till the age of twenty-i
one, whether the original guardian continue to act
or not. RuDRA Prokash ]\Iisser v. Bhola Nath
IMukherjee . . I. L. R. 12 Calc. 612

5. — Minor undet,

Court of Wards. A "minor under the jurisdiction
of the Court of Wards " means a person of whosej
estate the ( V.urt cf \A'ard has actually assumec^
the management, not a person of whose estate th^
Court of Wards might with the sanction of Govern
ment take charge. Periyasami v. Seshade'
Ayyangar . . . I. L. R. 3 Mad, I

e. Minor— Guardiai

— Guardian of property — Guardian of person-
Necessity for issue of certificate of administration ii
order to complete appointment of guardian of pro
perty — Appointment of guardian of person — Age o
majority— Limitation. The Bombay Minors Aci
XX of 1864 does not, in terms, provide for the ap
pointment of a guardian of the property of a minor
but only for the grant of a certificate of administra,
tion, so that, until the certificate is issued, there ij
no such appointment of the guardian of the pro
perty as will extend the age of minority from eight
een to twenty-one. But it is different as regard
the appointment of the guardian of the persor

( 8057 )

DIGEST OF CASES.

( 8058 )

MAJORITY ACT (IX OF 1875)-

S. 3 — contd.

The Act provides, in terms, for such an appointment
being made, and no certificate of appointment is
contemplated by the Act on the language of which
it is plain that the appointment of a guardian of the
person is complete on the order of the Court being
made appointing him. The plaintiff's mother G
died in 1866 possessed of property v,hich she had
inherited from her husband. The plaintiff, who was
bom in 1858, was then a minor of the age for eight
years. In 1867 the plaintiff's maternal grand-
father obtained a certificate of administration. On
his death an order of Court was made on the 21st
March 1873, appointing the nazir of the Court ad-
ministrator of the property and the plaintiff's
mother-in-law the guardian of the person of the
•laintifi^, but no fresh certificate of administration
was granted. In 1880 the plaintiff brought the
present suit against the defendants to recover from
them the property left by her mother. I'he defend-
ints contended, inter alia, that the plaintiff had
attaii.ed her majority in 1874. when she arrived at
the age of sixteen, and that the suit wa? therefore
liarred by limitation. The plaintiff, on the other
hand, contended that the Indian Majority Act (IX
of 1875) was applicable, and that under its provi-
sions she did not attain majority un*-,il she was
'twenty-one. i.e., until the year 1879, and that the
present suit was therefore in time : — Held, that the
suit was not barred by limitation. The Indian
Majoiity Act (IX of 1875) was applicable (except
so far as its operation was excluded by s. 2), inas-
aiuch as theie was a guardian of the person of the
plaintiff in existence both when she arrived at the
ige of sixteen and also when she was eighteen, and
i;herefore the period of minority for her was extend -
id to twenty-one years of age. (?it ,, -re ; Whether
;-he fact that a guardian has been at one time ap-
pointed is sufficient to brmg the case within s. .3 of
,;he Indian Majority Act (IX of 1875) so as to
■Jxtend the period of minority to the age of twenty-
,)ne. The intention of the Legislature to be gathered
irom s. 3 would appear to be to extend minority to
;wenty-one years of age in cases where, at the time
phe minor reaches the age of eighteen, his person
pr property is in the hands of a guardian. Yek-
IsATH V. Wabcbai . I. L. R. 13 Bom. 285

ltd. \ MAJORITY ACT (IX OF IQ1?>)— contd.

■ S, Z— could.

that the District Judge's order had been upheld on

j appeal by the High Court -.—Hekl, that there was no

evidence that a guardian of the person or property

I of the defendant had ever been appointed within

the meaning of s. 3 of the Indian Majority Act (IX

of 1875), and as the defendant was not under the

I jurisdiction of the Court of Wards at the time of

I the execution of the promissory notes he was then

j no longer a minor, but 6ui juris and competent to

j enter into a binding contract. HeM, that the Col-

j lector is not a Court of -lustice within the meaning

of .^. 3 of the Majority Act. A Collector appointed

i under s. 12 of Act XL of 1858 cannot properly be

,-tyled the guardian of a minor's property. Held,

that under s. 3 of the Majority Act the disability

of^ minority only continues so long as the Court of

Wards retains charge of a minor's property and no

longer. Budra I'rokash Mis.ser v. Bhola Nath

Mookerjee, I. L. R. 1-J Calc. 612, referred to and

'. commented on. Birjmohun Lall v. Rudra

Pekkash Misser . . I. L. R. 17 Calc. 944

3jinor—Age of

rnajority — Guardian and Manager — Act XL of 1S6S,
W 4, 7. 12 — Collector — Court of Wards Act (Beng.
Ad IX of lS7y), ss. 7-11, 20, (id. In a suit to re-
I'over money due upon certain promissory notes
jtxecuted between the 14th December 1885 and
i;he 16th March 1886, the defendant pleaded (inter
\dia) minority, and alleged that by an order of the
pivil Court the Collector had been appointed his
j^rdian and manager of his estate under Act XL
))f 1858 ; that on the 6th December, when he was
jiineteen years of age, his estate had been released
i)y the Court of Wards and was made over to his
lather on the 17th December ; that on the 30th
pecember the District Judge held that he was still a
lUinor, and appointed a manager of his estate ; and

8. Minority, period

of, where guardian has once been appointed, although
no longer in existence — Guardians and Wards Act
(VIII of 1890), s. .52 — Suit on promissory note exe-
cuted by minor. The defendant was sued upon
a promissory note executed by him on the 24th
August 1892, he being at that time nineteen years of
age. Eight j-ears previously, viz., on the 4th March
1884, a guardian of his person and property had
been appointed by an order of the High Court, but
the guardian had been discharged on the 25th June
1892, and at the time of the execution of the note
sued on there was no guardian in existence either
of his person or property : — Held, that, having re-
gard to the provisions of s. 3 of the Indian Majority
Act (IX of 1875), the defendant was still a minor
at the date of the note. Gordhandas Jadowji i\
Harivalubhdas Bhaidas I. L. R. 21 Bom. 281

9. Guardian— Mi.

nor — Order making appointment of guardian —
Certificate of guardianship not issued — Act XX of
1S6-I — Period of minority. Where a person obtains
an order for a certificate of guardianship of a minor
under the provisions of Act XX of 1864, the minor
is deemed to have attained his majority when he
shall have completed his age of 21 years bv virtue
of s. 3 of the Indian Majority Act (IX of 1875). It
is not necessary for the purposes of the section that
any formal certificate of guardianship in pursuance
of such order should be obtained. Shivram t-J
Krishxabai (1900) . I. L. R. 31 Bom. 80

10.

Poller of Chamber

Judge to alter, v.ry, modify or set aside orders made
by his predecessor in Chamber under the Guardians
and Wards Act — Period of minority on vacating of
such orders does not extend to 20 years — Guardians
and Wards Act (VIII of 1S90), ss. 47, -JS. If an
order is made under the Guardians and Wards Act
and such order is subsequently set aside the period
of minority is not extended to 21 years under s. 3 of

{ 8059 )

DIGEST OF CASES.

( 8060 )

TVtAJOBITY ACT (IX OF 1815)— cm dd.

s. 3 — concld.

-the Indian Majority Act. Nagardas v. Anandrao
(1907) . . ' . I. L. R. 31 Bom. 590

MAJORITY, AGE OF.

See Guardian — Arpointment.

I. L. R. 18 Bom. 366

See Limitation Act, 1877, s. 7.

5 C. li. R. 543

See Pa RSI s

I. L. R. 22 Bom. 430

1. Hindu, resident and domi-
ciled in Calcutta, majority of. The age of
majority of a Hindu resident and domiciled in the
town of Calcutta, and not possessed of any property
in the mofussil, is the end of fifteen years. Cally
Churn Mullick v. Bhugogbutty Churn Mul-
LICK. In Vir v.atter of Benud Behary Mullick
10 B. L. R. F. B. 231 : 19 W. R. 110

Drobo Moyee Dossee v. Juggessur Hati

1 W. R. 75

{Contra) In the matter of Hemnath Bose

1 Hyde 111

Purmeshur Ojha v. Goolbee . 11 W. R. 446

Tarinee Pershad Sein v. Dwarkanath
Rukheet . . . . 15 W. R. 451

2. Hindu laiv —

Act XL of 1S5S. A Hindu, resident and domiciled
in Calcutta and posse sied of lands in the mofussil,
borrowed in Calcutta a sura of money from the
plaintiif , a professional money-lender, and agreed
by his bond to repay the principal with interest at
36 per cent, per annum in Calcutta. The defend-
ant's age at the time he executed the bond, was
sixteen years and one or two months ; but neither
his person nor his property had been taken charge
of by the Court of Wards or by any Civil Court.
The defendant having made default in payment ,
the plaintiff brought the present suit. The defend-
ant pleaded his minority : — Held by the Full
Bench, that the law as to the age of minority
governing the case was not Act XL of 18.58, but
the Hindu law, under which the defendant was not
a minor at the time he executed the bond, and
that therefore he was liable on it. Mothoor-
MOHUN Roy v. Soorendro Narain Deb

I. L. R. 1 Calc. 108 : 24 W. R. 464

3.-- Construction of will— i'arecM-

tor — Grant of probate, refusal of, to minor. A
Hindu, domiciled with his family at Serampore, in
the zillah of HoogUy, died, leaving a will, in which
was the f ollomng direction : "In order to look
after the affairs, to^conduct suits and manage the
debts and dues relative to my real and personal
estates, my eldest son, H C G, who has attained the
age of majority, remains executor, for my younger
son, G C G, is an infant ; but as my eldest sister,
S H D,iH prudent and sensible, all the affairs of the
estates shall be under her superintendence ; and
my eldest son shall do aU the acts according to her
advice and direction. But when my younger son ,

MAJORITY, AGE Q-F—contd.

G C G, will come of age, then both the brothers sha
be competent personally to manage the affairs ; a
that time the advice and superintendence of ray sai(
sister shall not remain. " G C G, after attainin
the age of sixteen, but before he had reached the ag
of eighteen, applied for grant of probate of hi
father's will to himself, jointly with his brother 1
C G, in respect of property in Calcutta. The Coui
below refused to grant probate of the will to the so
of the testator, on the ground that he was under th
age of eighteen years: — Held, on appeal, that h
had not attained the age contemplated in h;
father's will at which he was to he joined in tt
executorship with his brother. In the good< of Gang
Prasad Gosain . , . 4 B. L. R. Ap. 4
£.c. on appeal . . . 5 B. L. R. ft .

4. — ■ Mahomedan not subject •!

Court of Wards. In the case of Mahomedan
not subject to the Court of Wards, the limit (
minority was held to be at least sixteen year;
Abdool Oahab Chowdhry v. Elias Banco

8 W. R. 3C

5. — Proprietors paying rev(

nue to Governnient— £e?igr. Reg. XXVI i
1793, .•-■. 3. The holder of an estate paying revenu
direct to Government, whether the settlement c
that estate be temporarj' or permanent, was a pn
prietor within the meaning of s. 3, Regulatio
XXVI of 1793 ; and the minority of such a proprif
tor extended to the end of the eighteenth yea;|
Huro Monee Debia v. Tumeezoodeen Cho\s
dhry 7 W. R. 18

Beer Kishore Suhye Singh i'. Hur Bullu
Narain Singh . . , . 7 W. R. 50

6. Be^ig. Reg. XXV

of 1793, s. 2 — Contracts as to real estate and per&onc
cotitracts. S. 2, Regulation XXVI of 1793, extern,
ed the terra of minority of proprietors of estate
paying revenue to Government from the end of tb
fifteenth to the end of the eighteenth j'ear, in ret
pect of all acts done by such proprietors, both as t
matters connected with real estate and matters (,
personal contract. Bykuntnath Roy Chowdhe
V. Pogose .... 5 W. B.

7. Proprietors ovi

possession — Beng. Reg. XXVI of 1793. Regul£
tion XXVI of 1793 applied to proprietors out (
possession as well as to those in possession, and wa
not overridden by the Mahomedan law with refe"
ence to majority. Enaet Hossein v. Rosha
Jahan. Roshan Jahan v. Enaet Hossein

5 W. R.

Sale of estate l\

Mahomedan proprietor — Beng. Reg. XXVI of 179\
s. '2. Semhle : In respect of a transaction in whiej
a Mahomedan, the proprietor of an estate payin
revenue to Government, disposes of that estate, tl
period of minority was that of eighteen years, <'
fixed by s. 2, Regulation XXVI of 1793. 'Ambei
OONNISSA Khatoon V. Abadoonnissa Khatoo
15 B. L. R. 67 : 23 W. R. 20
li. B. 2 I, A. 8

( 8061 )

DIGEST OF CASES.

8062 )

12.

13.

MAJORITY, AGE OF—conid.

Q Co-sharer — Be^ig.

Reg. XXVI of 1793. Regulation XXVI of 1793
fixing eighteen j'ears as the legal age for the exer-
•ise of the powers of a proprietor of an estate paying
evenue to Government) applied to a co-sharer, as
veil as to the proprietor of an entire estate.
'^osHrs Jahas v. Enaet Hossein

W, R. 1864, 83

10. Hindu— 5om. Reg. V of 1827, s.

—Minor— An t'licai ion for erecation of decree.
Idd, that a Hindu of the age of seventeen years was
ompetent to apply for the execution of a decree 1
btahed by a deceased person of whom he was the
epresentative. Reg. V of lh27, s. 7, cl. 3, did not |
■revent a Hindu less than eighteen years of age i
-om suing, but restricted him to a particular period j
^ ''er which he was no longer a minor. Ganga- j
'HAR Raghunath V. Chimxaji Keshav Damle !

5 Bom. A. C. 95

11. . Person not European Bri-

ish subject— ^c< XL of 1S5S- Majority of
Undus. Every person not being a European j
■Jritish subject, who has not attained the age of ;
•ighteen years, is a minor for the purposes of Act
:L of IS'oS ; and unless he is a proprietor of an |
jtate paying revenue to Government, who has |
leen taken under the jurisdiction of the Court of
' i'ards, the care of his person and the charge of his I
roperty are subject to the jurisdiction of tae CHvil {
ourt ; and he is a minor, whether proceedings j
live been taken for the protection of his property :
•r the appointment of a guardian or not. Madhu- i

TDAN MaNJI v. DeBIGOBIXDA NeWGI

1 B. L. R. F. B. 49

s. c. MoDHoo SooDUN Manjee V, Dabee Gobind
EWGEE . . . 10 W. R. F. B. 36

Abdool Hosseix v.

MAJORITY, AGE OF—contd.

15. Jurisdiction —

High Court, Original Jurisdiction. The period of
minority among Hindus by the operations of Act
XL of 1858, extends to eighteen years, as well with-
in the original civil jurisdiction of the High Court
as within the jurisdiction of the Civil Courts in the
mofussil, and that whether the father is alive and of
full age or not. Jadukath Mjtter v. Boi.vfHAND
DuTT 7 B. L. R. 607

16. Power to

Luteefoonxissa

11 W. R. 235

Person subject to Act XL

if 1858— Jc< XL of ISoS, certificate under.

'ci a certificate of suardianship has been granted

1 Act XL of 1858, it is by the terms of that

. ind not by reference to ^Mahomedan or Hindu

that the ptTiod ai which the wa:d is to be

I'.leicd of full age must be determined. Maho-

Arsud Chowdhry v. Oosvs Bebee

2 W. R. 217

Limit of minority

■ ussion as to the limit of minority of Hindus
■ are not proprietors paying revenue to Govern-

■ t), and as to the proper construction of s.
' of Act XL of 1858. Monsoor Ali v. Ram-
InrL 3 W. R. 50

14.

Revenue- paying

■rietors. The age of majority fixed by Act XL
^58 is not only for proprietors of land paying

lue to Government, but for all persons not

-T British subjects. Lakhikant Dutt v.

.BAXDHU Chtjckerbutty 3 B. L. R. Ap. 79
so. LucKHEE Kant Dutt v. Jtigobundhoo

irCKERBUTTY . . . 11 W. R. 561

Act XL of 18-58, s. 3. Where a person (a native of
this country) has not attained the age of eighteen
years, he is not competent to institute and main-
tain a suit without tlie intervention of a guardian
appointed under s. 3 of Act XL of 1858. NooR
Ahmed v. Lulta Pershad . . 2 N. W. 189

17. Act IX of 1875

{Majority Act), s. 3 — Minor. A minor, of whose
person or property a guardian has been appointed
under Act XL of 1858, does not attain his majority
when he completes the age of eight^een years, but
when he completes the age of twenty-one years.
Khwahish Ali v Surju Parsad Sinch

I. L. R. 3 All. -598

18. European British subject.
The defendant was, at the time of making a
promissory note, of the age of ninteen years. The
evidence showed that her father was born at sea, and
lived the greater part of his life at Calcutta. It was
not shown of what country his parents were, or
whether the ship in which he was born was a British
ship. The defendant pleaded minority at the time
of making the note : — Held, that the defendant was
not a European British subject, and not exempted
from the operation of Act XL of 1858. She there-
fore attained her majoritv at eifrhteen vears.
Archer v. Watkixs . ' . 8 B. L. R. 372

19. European British subject —

L((W governing capacity to contract. Tlie tt.t loci
contractus determines the capacity' of a person to
contract, and reference ouglit not to be made to
the law of his domicile of origin. The privileges and
disabilities of minority, so far as they are not re-
moved by express enactment, attach to European
British subjects in this country until they have
attained the age of twenty-one years. The same rule
ought, on principles of justice, equity, and good con-
science, to be observed in the Non-Regulation ai in
the Regulation Provinces. Hearsev v. Girdha-
REE Lal 3 N. W. 338

20. ' A stated tiiat he

was born in 1848 ; that his great-grandfatlier was,
according to the tradition of the family, a European
(but of what country in Europe he did not know)
residing at Madras, and his grandmother a native
Hindu or Mahomedan ; that he did not know
whether his great-grandfather and great-grand-
mother were married or who his grandmother was,
or whether his grandfather was married ; that his
fath?r married a lady bearing an English
name ; that he himself and all his relations were
Christians ; that he was born in Calcutta, and

( 8063 )

DIGEST OF CASES.

( 8064 )

MAJORITY, AGE OF—contd.

knew of no relatives in Europe : — Held, that he was
the legitimate descendant of a European British
subject, and threfore his age of majority was
twenty-one years. Rollo v. Smith

1 B. Ij.^11. O. C. 10

21. European British subject

not domiciled in India — Capacity to contract —
Minor, suit against — Civil Procedure Code, s. 443 —
Majority Act, IX of 1875 — Lex loci — Contract Act
{IX of 1872), s. 11-— Cheque — Liability of indorser —
Act XX VI of 188 U ss. 35, 43. A cheque was indorsed
in blank by a European British subject who at that
time was under twenty years of age and was tem-
porarily residing, and not domiciled, in British
India. It was subsequently dishonoured, and a
suit was then brought by the bank which had
cashed the cheque, to recover the amount from the
indorser and drawer. The former alleged that
the drawer had requested him to sign his name to
the cheque, saying that it was a mere matter of
form and he would not be liable for the amount and
that the bank would only cash the cheque when in-
dorsed by him ; and in consequence he consented
to indorse it, but that he did so without any inten-
tion of incurring liability as indorser ; that he
received no consideration, and that his indorse-
ment was in blank, and not in favour of the bank,
and was converted into a special indorsement
without his knowledge and consent. The Court
held that, at the time of indorsement, the indorser
was a minor under English law, and dismissed the
suit on the ground of minority : — Held, that, if the
Court was satisfied of the fact of the defendant's
minority, it should have complied with the provi-
sions of s. 443 of the Civil Procedure Code, Held,
also, that, assuming the indorser to have been sui
juris, the indorsement, taken in conjunction with
the facts proved, established a contract by which
the indorser was bound to pay the cheque. Per
Straight, Oifg. C.J., and Duthoit, J., that it was
by no means clear or certain that there was any rule
of international law recognizing the lex loci con-
tractus as governing the capacity of the person to
contract, but that, assuming such a rule to be estab-
lished, the specific limitation of the Majority Act
(IX of 1875) to " domiciled persons " necessarily
excluded its application to European British sub-
jects not domiciled in British India ; that s. 11 of
the Contract Act must be interpreted as declaring
that the capacity of a person in point of age to enter
into a binding contract was to be determined by his
own personal law, wherever such law was to be
found ; that this rule was not affected by the Major-
ity Act, so far as concerned persons temporarily
residing, but not domiciled in British India, whose
contractual capacity was still left to be governed
by the personal law of their personal domicile ; and
that such law in the case of European British sub-
jects was the common law of England, M'hich re-
cognized twenty-one as the age of majority. Per
Oldfield, J., that by the rule of the jus gentium, as
hitherto understood and recognized in England, the
Ux loci would govern in respect to the capacity to

MAJORITY, AGE OF— cowW.

contract, but that in framing the Indian Majorit
Act, which was the lex loci on the subject in Indi
the Legislature would appear not to have adopte
that rule, but, by limiting the operation of the A
to persons domiciled in British India, to have ii
tentionally excluded from its operation persons n(
domiciled there, and to have left such persons to 1
governed by the law of their domicile. p
Brodhurst, ./., that Act IX of 1875 was intends
by the Legislature to be applicable, and in fact w;
applicable, only to European British subjee
domiciled in those parts of India referred to in s.
and that to any other European British subje
whose domicile was in England, but who was tei
porarily residing in any part of India above alludii
to, the privileges and disabilities of minority s
tached until he had attained the age of twenty-c
years. Rohilkhaxd and Kumaox Baxk v. Rc
I. L. R. 7 All. 4C

22. Mahomedan over sixtee

years of age before Act IX of 1875 came in

force— Capacity to contract— Mahomedan law
Contract Act (IX of 1872), s. ll—Bengal Mint
Act {XL of 1858), s. 26— Majority Act {IX ,'
1875), s. 2 (c). In a suit upon a bond executi
on the 5th June 1875 by a Mahomedan who
that date was sixteen years and nine months oi
the defendant pleaded that at the time when t
bond was executed he was a minor, and that t
agreement was therefore not enforceable as agair
him : — Held, that the defendant, having at the df-
of the execution of the bond reached the full agef
sixteen years, and so attained majority under t»
Mahomedan law, which, and not the rule containl,
in s. 26 of the Bengal Minors Act (XL of 1858), \?it
the law applicable to him under s. 2 (c) of the Majil-
ity Act (IX of 1875) before the latter Act came iu
force, was competent in lespect of age to makfi
contract in the sense of s. 11 of the Contract /;
(IX of 1872), and the agreement was thereft?
enforceable as against him. The rule contained^
s. 26 of the Bengal Minors Ac./ is limited by its ter?
to " the purposes of that Act," which provides <\-
clusively for the care of the persons and propertjtt
minors possessed of property which has not bep
taken under the protection of the Court of Ware;
and it is to such persons only, when they have bffl
brought under the operation of the Act as in it p-
vided, that the prolongation of nonage under s.p
appKes. Dajiodar Dass v. Wilayet HttsauJ
I. Ii. R. 7 All. 71

23. Bombay Minors Act (XXIf

1864)— J/mor. A Hindu to whom Act XX of 1 ' '
(Bombay Minors Act) is not applied, and who is
governed by the Majority Act, 1875, attains
majority when he attains the age of sixteen ye;
Shid Deshbav v. Rajichandrarav

I. L. R. 6 Bom. 4

24. Charge of property

minor— Act XL of 1858, s. 2. Under Act X^
1864, s. 1, it is the charge of a minor's propej,v,
and not the property itself, which shall vesfin •

( 8065 )

DIGEST OF CASES.

( 8060 )

MAJORITY, AGE OF—concld.

the Civil Court a distinction which has been over-
ilooked in Bai Kesar v. Bai Ganga, 8 Bom. A. C. 33.
The meaning of the 1st section of Act XX of 1864,
when regarded in connection with the sequel thereof
(which provides, for the information of the Civil
Court, no such means, regarding the deaths of per-
sons leaving infant children, as would enable the
Court to act ex mero motu in every such case), is that
the care of the persons of all minors (not being
European British subjects) and the charge of their
property shall be, as expressly provided in the
Bengal Minors Act, XL of 1858, " subject to the
urisdiction of the Court ;" and there is nothing in
:he subsequent sections of the Bombay Minors Act
.vhich would lead to the conclusion that, until the
'curt is moved to exercise its jurisdiction, the care
i the minors themselves or the charge of their
)roperty is vested in the Court, or that more was
ntended than that, like the Court of Chancery in
England, the principal Civil Courts of districts
hould have the right, if moved so to do, and if they

0 think proper, to take care of the persons of
ainors and charge of their property ; and that,
ntil the Court does so, the minors cannot be regard-

1 as wards of the Court, or their property as in its
'harge. It is only for the purposes of Act XX of

. 864 that eighteen is laid down as the age of major-
y (s. 30). The Legislature has not, by that Act,
itended to prescribe eighteen as the age of majority
jr all persons of all castes and creeds and for all
urposes. That limit is not applicable to any
erson until the Act be brought into play by the
lercise of the Civil Court's jurisdiction. One
. lember (although an infant) of an undivided
imily, governed by the Mitakshara law, has not
ich an interest in the joint property as is capable
i being taken charge of and managed by the Civil
'ourt or a guardian appointed under Act XX of
■•"1. Qucere : Whether, under Act XX of 1864,
urincipal Civil Court of original jurisdiction in
district can take charge of the property of a
:rson who has completed his sixteenth year, but
j under eighteen. Shivji Hasam v. Datu Mavji
HOJA 12 Bom. 281

AL OR LAKHIBAJ.

See Landlord and' Tenant.

10 C. W. N. 434

ALABAR COMPENSATION FOR
TENANTS' IMPROVEMENT ACT
(MAD. I or 1887).

See Landlord and Tenant — Buildings
ON Land, Right to remove, and
Compensation for Improvements.

ss. 2, 3, 4, 6—

See Landlord and Tenant — Property
in Trees and Wood on Land.

I. L. B. 24 Mad. 47

MALABAR COMPENSATION
TENANTS' IMPROVEMENTS
(MAD. I OF 1900).

FOR
ACT

ss. 3, 4, 7, 10—

See Landlord and Tenant — Property
IN Trees and Wood on Land.

I. L. R. 24 Mad. 47

s. 19 — C'o:itract.s entered into before

l.st Junuanj J8S6, effect of. S. 7 of tlic Malabar
Compensation for Tenants' Improvements Act of
1887, which is reproduced as s. 19 of the Act of 1900
does not affect the validity of contracts made prior
to 1st January 1886, whether the improvement was
made before or after the coming into operation of
the Act of 1887. Malikan v. Shankunni, I. L. R.
13 Mad. 502, dissented from. Randcpcrail

KUNHISORE V. NeROTH KuNHI K ANNAN (1908)

I. L. R. 32 Mad. 1
MALABAR LAW.

See Court Fees Act, s. 17.

L L. R. 30 Mad. 61
See Ubhayapattom.

Liability of im-

provements made by sub-tenants of kanomdar for rent
due by kanomdar to jenmi. Qucere : Whether im-
provements made by the sub-tenants of a kanomdar
are liable for rent due by the kanomdar to the
jenmi. Achuta v. Kali, I. L. R. 7 Mad, 5i5, and
Eressa Menon v. Shamu Patter, I. L. R. 21 Mad.
138, referred to. Vedapurattx v. Avara (1901)

I. L. R. 25 Mad. 568
2. Kama va n — Rcnun-

VOL. III.

cintion of right to succeed as karnavan — Validity. It
is open to a karnavan of a tarwad to renounce his
right to manage the tarward affairs. Cherukomen
v. Ismala, 6 Mad. H. C. 145. commented on.
Kenath Puthen Vittil Tavaziii v. Narayanan
(1905) . . . I. L, R. 28 Mad. 182

MALABAR LAW— ADOPTION.

1. Adoption by the last mem-

ber of a Nambudri iliom. In a suit for a de«
claration that the members of the Nambudri illom
to which the plaintiffs belonged were the sole heirs
and successors of an illom known as Kiluvapura, of
which the natural line had become extinct, and for
possession of certain land which had formed part of
its property, the defendants were the karnavan and
manager of the plaintiffs' illom and the members of
another illom. It was found on the evidence that
the plaintiffs' karnavan had been adopted unto the
Kiluvapura illom, and that subsequently that illom
and the plaintiffs' had been amalgamated under a
karar executed by, among others, the wife of the
last male member of the Kiluvapura illom, and that
she had died before this suit : — Held, that the adop-
tion of the plaintiffs' karnavan «as valid even as-
sumins that no datti homam was performed, and
t'le last male member of the Kiluvapura illom had
died after merely indicating him as his heir, and
that the widow adopted him In the Dwayamushya-
yanaform; and that the plaintiffs were entitled to
a decree as prayed. Shankaran v. Kesavan

1. L. R. 15 Mad. 6

12 A

8067 )

DIGEST OF CASES.

MALABAR LAW— ADOPTION— concZi.

Ad option by the k ar navan

of a Marumakkatayam tarwad — Want of
consent by the rest of the tarwad. A tarwad in Mala-
bar subject to Marumakkatayam law was reduced
in number to two persons, viz., the karnavan and
his younger brother, the plaintiff. They quar-
relled, and the former without the consent of the
latter adopted as members of the tarwad his son
and daughter and her children. On his death the
plaintiff sued for possession of the tarwad proper-
ty and for a declaration that the adoptions were in-
valid : — Held, that the plaintiff was entitled to the
relief asked for. Payyath Nantt Menon v. Thirtt-
THiPALLi Raman Menon . I. L. R. 20 Mad. 51

LAW— CUSTODY

MALABAR
CHILD.

Nephews — Guardianship — Right of

■ — Ground for exercise of jurisdiction of Civil Court.
The Civil Judge removed two children, governed
by the rule of Marumakkatayam, from the custody
of their karnavan, and placed them under the
guardianship of their father. Held, by the High
Court on appeal that the order should be reversed
on the grounds that no case had arisen for the exer-
cise of the Civil Judge's power, and that the order
was wholly opposed to the very principle upon
which Marumakkatayam depends. Thathtt
Baputty v. Chakayath Ghathu . 7 Mad. 179

MALABAR LAW— CUSTOM.

See ]\L4LABAR Law — Inheritance.

L L. R. 15 Mad. 281

L-

Nam'budri Brahman s — Proof-

Adoption of sister's son. A Division Bench of the
High Court having directed an issue t_i be tried
by the Subordinate Judge of Nnrth Malabar as to
whether, by the custom of Malabar, the adoption
of a si-ter's son among Nambudri Brahman? was
valid, the Subordinate Judge examined eleven
witnesses selected by the parties to the suit all of
whom were described as Nambudris of note in both
d'istricts of North and South Malabar. These
witnesses (with the exception of one whose testi-
money was self -contradictory) agreed that the
adoption of a daughter's or sister's son is recog-
nized by the customary law of Malabar, and sup-
ported their opinion by giving instances of such
adoption which had taken place within their know-
ledge, and named the persons alleged to have been
adopted in pursuance of the custom as holding
estates by virtue of the title thereby acquired.
The Division Bench referred to a Full Bench the
question whether the evidence sufficiently estab-
lished the custom alleged. Held, by the Full Bench

(TtTRNER, C.J., IXNES, KiNDERSLEY, and MuTTXJ-

SAMi Ayyar, J J.), that the evidence was suffi-
cient to establish that the adoption of a sister's son
by Nambudri Brahmans is sanctioned by the
customary law of Malabar. (Per Turner, C.J.,
and Kjndersley, J.) Semble: The ruling in
Gopalayyan v. Ragupathi Ayyan, 7 Mad. 250, as
to that constitutes sufficient proof of custom, has
been too strongly expressed. Eeanjoli Illath-

MALABAR LAW— CUSTOM— concR

VISHNU Nambudri v. Eranjoli Illath Krishn
Nambudri . . . I. L. R. 7 Mad (

2. TS&mh\x.6xia— Introduction '■

stranger to perpetuate existence of illam. Accord! ;

to the custom prevailing amongst Nambudris i

Malabar, a person may be introduced into an ill i

(family) to perpetuate its existence. Such pen a

thereupon becomes a member of the illam, and 3

jyrimd facie entitled to exercise the uraima, rigs

of the illam {i.e., to act as trustee of temp,

the hereditary trusteeship of which is vested in e

j illam), as well as to enjoy the properties belongg

I to the illam. Keshavan v. Vasudevan.

I 1. L. R. 7 Mad. 57

3. Custom in family of the ,*-
morin Rajas of Calicut — Presumption as to >

' perty in possession of member of family. Accor ig

to the custom obtaining in the family of the Zam .n

! Rajas of Calicut, property acquired by a stani-

holder and not merged by him in the propert;)f

his stanoni, or otherwise disposed of by him inis

lifetime, becomes, on his death, the propert_pf

the koviiagom in which he was born, and, if foid

■ in the possession of a member of the kovilap,

: belongs presumedly to the koviiagom as comDn

i property. Vira Rayen v. Valia Rani

I. L. R. 3 Mad. 41

4. Qualification of yajama or

manager of the family— Leprosy — Ac-
tion of another person without consent of son who'os
a leper. The last female member of an Aliytkii-
tana family made an adoption without the cor at
of her son, who was suffering from the ulceus
leprosy, which was not congenital. Heid, at
there was no custom excluding lepers either iva
management of the family or from inheritance -nd
that the son was entitled to have the adoptic set
aside. Chandu v. Subba I. L. R. 13 Mad 09

5. Custom of Mapillas— Go-/ce-

nary. There is no authority for saying tha'the
custom of holding property in co-parcenary is re-
cognized custom among Mapillas in Mabar.
Kasmi v. Ayishamma . I. L. R. 15 Ma 60

6. Kuikanom lease ) in-
definite period — Customary law as to duratic of
lease. By the customary law of Malabar, a iiant
under a kanom or kuikanom lease is entitled r: to
be redeemed or ejected until the expiration of <'-lve
years. But, where no time is fixed for the duuon
of the lease, it does not, under the customariaw,
, determine on the expiration of twelve yearf^om
its date. Kellappan v. Madhavi (1901) ,

I. L. R. 25 Mad452

MALABAR LAW— DEBTS.
1. - Hindu law how far ap ica-

ble — Biahmans — Nambudris — Mu^sadi — L niit^
of .^on? for father's debt in Hindu law not apf<^>^-
The principle of Hindu law, which imposes -iuty
a son to pay his father's debt, contracted f pur-

able

►ses neither illegal nor immoral, is not »pi-' — -

the Malabar Brahmans called Nambudi an"

ussads. NrLAK*NDAN V. Madhavan -

I. L. B. 10 ]9^ ^

( 8069

DIGEST OP CASES.

( 8070 )

MALABAR LAW— DEBTS— concW.

2. — Debt incurred bif

hirnavan and senior anandravan for benefit of tarwad
—Decree for money — Liability of moveable property
)/ tarwad to attachment under that decree. A tarwad
;on8isted of plaintiffs and defendants Nos. 2 and 3.
Defendants Nos. 2 and 3 were the karnavan and
lenior anandravan of the tarwad. A money decree
jftd been obtained as against the karnavan and
lenior anandravan on a debt which had been con-
racted by them for the benefit of the tar wad, and
iQ execution of that decree, certain moveable pro-
lerty belonging to the tarwad had been attached.
n a suit for a declaration that the moveable pro-
crty of the tarwad was not liable to be attached
1 sold in execution of the decree : — Held, that
property was liable. Ittiachan v. Velappan, I. L.
^ Mad. 4S4, and Govinda v. Krishna, I. L. R. 15
: ..L 333, discussed. Manakat Velamma v. Ibra-
iM Lebbe (1904) . I. L. R. 27 Mad. 375

lALABAR LAW— ENDOWMENT.

See Parties — Adding Parties to Suits

—Plaintiffs . I. L. R. 10 Mad. 322

I. L. R. 14 Mad. 489

I. L. R. 26 Mad. 461

1. Uralans — Agreement to increase

unber of uralans (trustees) — Binding effect of, on
inority. An agreement by the majority of the
alans (trustees) of a Malabar devaswam (temple)
increase the number of uralans is not binding on
iissentient minority. Narayanan v. Sridharan
I. L. R. 5 Mad. 165

manage-

nt — Power of majority. Where the majority of

3 uralans of a Malabar devaswam agreed to

lew a kanam on terms beneficial to the devaswam

,«r the question of the renewal had been fairly

isidered by all the uralans -.—Held, that the

■^lon of the majority was binding upon a dis-

•'-nt minority. Charavur Teramath v.

vTH Lakshmi . . I. L. R, 6 Mad. 270

Uraiama or

uiuiui/tu ur

'■>' of uralan — Melkoima — Effect of compromise

raters of the right to Tnanage a devaswam —

"i of certain uralers to exclude others from

i'jement — Limitation. The uraiama right in a

oar devaswam was vested in the illom, of which

aiff No. 1, a Naiiibudri Bralmian, was a niera-

. the defendants represented the family which

' merly ruled over the tract of country where the

<■ aswam was situated. The plaintiffs sued for a

^ aration that their families were entitled to the

'i^iye management of the affairs of the devas-

•■ It appeared that the plaintiffs' and defend-

_ lamilies had been in joint management since

' in accordance with the provisions of a deed of

I'omise. Held, (i) on its appearing that the

promise had been entered into by the karnavan

" lie plaintiffs' illom, and that the compromise

« not vitiated by fraud or the like, that the

^' promise was binding on the plaintiff ; (ii)

tUo claim to exclusive management was bar-

^y limitation. A legal origin to which the joint

I MALABAR LAW— ENDOWMENT— con<(^.

! enjoyment of the rights of management may be
I referred may be found in the continuance of what
was melkoima in ancient times as a co -trusteeship
subsequent to the British rule with the tacit sanc-
tion of the British Government, or in the status of
the Nambidi family as patrons of the institution.

NiLAKANDAN V. PaDMANABHA

LL.R. 14 Mad. 153

Held, on appeal to the Privy Council affirming the
above decision, that the compromise so agreed to
was binding upon the appellants ; that the usage,
which had been followed since 1845, was the best
exponent of the melkoima right ; and that the com-
promise could not be re-opened. Ndlakandhen
Nambudirapad v. Padmanabha Revi Varma

I. L. R. 18 Mad. 1
L. R. 21 I. A. 128

4. Alienation of endowed pro-
perty— Sale of joint property — Uralans of deva-
swam— Sale by one tarwad without consent of others.
When the uralans of a devaswam were four tar-
wads : — Held, that a sale of the uraiama right by
one tarwad, without the consent of the others, was
altogether invalid, and that the vendee could not
redeem a kanam mortgage of the devaswam land,
though the mortgagor was karnavan of the tarwad
which assumed to sell the uraiama right. Ukanda
Varriyar v. Ramen Nambudiri . 1 Mad. 262

5. Transfer of right to man-
age temple — Lease. A transfer of the right to
manage a Malabar temple and its lands by way of
lease for a sum of money is illegal. Rama Varma
Tambaban v. Raman Nayar

1. L. R. 5 Mad. 89

6. - - — Alienation —

Custom. The founder of a Hindu temple who pro-
vides that the uralans (trustees or managers ) there-
of for the time being shall be the karnavans (chiefs)
of four distinct families, may be supposed to have
established this species of corporation with the
object of securing the due performance of the wor-
ship and the due administration of the property of
the temple by the instrumentality of a class of per-
sons whom he has selected on grounds of special
fitness ; and it cannot be supposed that he intend-
ed to empower such trustees at their mere will to
transfer their office and its duties, wth all the trust
property, to a person unconnected with the familiea
from which the trustees were to be taken, to be
used according to his discretion. There is no author-
ity under the general principles of Hindu law for
holding that such trustees have power to make such
a transfer. Where a custom relied on as sanction-
ing such a transfer implies the right to sell the trus-
teeship for the pecuniary advantage of the trustees,
that circumstance alone may justify a decision that
the custom relied on is bad in law. AVhere, from
the absence of direct evidence of the nature of a
Hindu religious foundation, and the rights, duties
and powers of the trustees, it becomes necessaiy to
refer to usage, the custom to be proved must be one
which regulates the particular institution. The
cases of Greedharee Doss v. Nundo I^rishore Doss, 11

12 A 2

( 8071 )

DIGEST OF CASES.

( 8072 )

MALABAR LAW— ENDOWMENT^;on<(Z.

Moo. I. A. -JOS, and Rajah Muttu Ramalinga
Setupati. V. Perianayagam Pillai, L. R. II. A. 209,
referred to and approved. Vurmah Valia v.
Ravi Vfkmah . . . I, L. R. 1 Mad. 235
li. R. 4 I. A. 76
Affirming decision of High Court in Varma
Valia (Rajah of Cherakot Kovilagom) v. Kot-

TAYATH KiYAKI KoVILAGATH ReVI VaRMA MoOTHA

Rajah 7 Mad. 210

See Gnanasambanda Pandara Sannadhi v.
Velu Pakdaram . I. L. R, 23 Mad. 271

7. rights of Sthanamdars.

Rights of members of a sthanam, inter se, con
sidered. Mahomed v. Krishnan

I. L. R. 11 Mad. 106

" 8. Alienability of " sthanam "

lands — Payment of debt. Lands attached to
the " sthanam " of sthanamdars in Malabar are,
unless the contrary be specifically proved in any
particular ca.se, liable to alienation and charge, at
all events for the payment of debts incurred for
the conservation of the sthanam. Chemmikikara
MUPPIL Nair v. Kiliyanat Ukona Menon

I. L. R. 1 Mad. 88

See Venkateswara Iyan v. Shekhari Varma
I. L. R. 3 Mad. 384 : L. R. 8 I. A. 143

9. Grant of perpe-
tual lease. The grant of a perpetual lease at a fixed
rent is not necessarily beyond the powers of a
sthanam-holder in a Malabar royal family. Mana

ViKRAMAN V. STjNDARAN PaTTAR

I. L. R. 4 Mad. 148

MALABAR

condd.

LAW— ENDOWMENT-

10.

Powers of stani

— Lease by stand of forest land attached to the stanam.
A stent in Malabar is not a tenant for life impeach-
able for waste. He is a person who represents the
estate for the time being, and it is open to him to
make a lease of forest land for a term of years,
and the mere fact that the alienation is intended to
hold good after his lifetime -sull not invalidate it.
Ittirarichan Unni v. Ktjnjunxi

1. L. R. 21 Mad. 144

11. Tarwad property — Appoint-
ment of trustees to tarirad charities by karnavan —
Validity. Though the karnavan of a Malabar
tarwad has the power, unless specially limited by
fa^mOy usage of agreement, of himself managing
the trust property of the tarwad, he has no inherent
right, as karnavan, to appoint another to take his
place as such trustee. Kannax v. Paznaniandi
(1901). . . . I. L. R. 24 Mad. 438

12. Suit against

karnavan as manager of tarwad — Attachment of
tarvmd property under decree — Svhsequent order of
release — Stiit to cancel order of release, barred by
8. 244 of Civil Procedure Code. Plaintiff in a suit
obtained a decree against the karnavan of defend-
ants, as senior member and manager of the tanvad,
and attached tanvad property in execution thereof.
Objection was then raised by defendants that the
property was not liable under the decree, and the
property was ordered to be released. Upon a suit

being brought by plaintiff against defendants f(
the cancellation of the last-mentioned order : Heli
that the suit was not maintainable, by reason <
s. 244 of the Code of Civil Procedure. Kama
KuTTi V. Ibrayi (1901) . L L. R, 24 Mad. 65

MALABAR LAW— GIFT.

1. Validity of ^iit—DeUvery .

possession. Plaintiff sued to recover certain land
virtue of an alleged gift from her deceased husban'
The parties were subject to the Marumakkataya
law. The facts were that, the land being in t!
hands of tenants, a deed of gift with the eountt
part lease was delivered by the donor to the plair
iff. It did not appear that there were any tit
deeds belonging to the property. Held, revers
the decision of the Principal Sudder Ameen, thi
the rule of law applicable is that a gift is perfect!
valid if such delivery is made as the nature of t
object permits, and that this had been done in t
present case. Wanxathan Kandile Chiruthi:
v. Keyakadath Pydel Kurtjp . 6 Mad. 1:

-Restriction on enjoyment-

Attempt to create estate subject to incidents of Malar
tarwad property — Sale of interest of donee by jui-
ment-cr editor. The owner of certain land in Ma-
bar made a gift thereof to his two sons and daughr
with the intention that it should be enjoyed /■
them subject to the incidents of tarward proper
— i.e., that the estate should be impartible and hi
by the donees as joint family estate descendible
the heirs in the female line. Held, that the intent
of one of the donees in the land was liable toj8
attached and sold in execution of a decree agaj|t
him. Narayaxan v. Kannan

I. L. R. 7 Mad. 15

3. Gift of land tu a wife id

her ch.il6.ven— Incidents of tanvad properl-
Liability to attachment in execution of decree. LiJ*
which originally belonged to one T, was given s|»r
his death to one of his wdves and her children icic-
cordance with a wish orally expressed by him. C»
had not expressed any intention as to how it shid
be held by the donees. It appeared that they w
subject to the Marumakkatayam law. Helohy
the Full Bench, that they took the land withhfr
incidents of property held by a tarwad. i\"
yanan v. Kannan, I. L. R. 7 Mad. 315, dissi
from: Held, by the Division Court accordii
that a decree against the assets of one of the pfi
could not be executed against the land as a wle
or against his share in it. Kttkhacha Umb) v-
KuTTi Mammi Hajee . I. L. R. 16 Mad.!"*
MoDiN v. Ambxj I '

L L. R. 16 Mad. 203 >te

{Contra) Parvathi v. Keran ^-

I. L. R. 16 Mad.p2

4. Effect of gil "/

property to a female and her children — Such prc^^V
not assets for the debts of a deceased member. JXi^^
of property to a female and some or all o'ler
children by their father or the karnavan of'"^
tarwad has not the effect of constituting thenn'*

( 8073

DIGES'r OF CASES.

( 8074 )

MALABAR LAW— GIFT— comcR

I tarwad by themselves. They, however, hold the
)roperties so given with the ordinary incidents of
arwad property and when a member dies, his
nterest passes by survivorship to the others and is
lot available for attachment at the instance of a
lecree-holder. Kunhacha Umma v. Kutti Mainmi
'lajee, I. L. R. 16 Mad. 201, referred to. Koroth
Vmman Kdtti v. Pekungottil Arpu Namp.i.\r
1906) . . . I. L. R. 29 Mad. 322

YLALABAR LAW— GRANT.

1. — Adiinayavana

mure — Land granted for services rendered prior
\} grant — Eight of landlord to eject. An adi-
aayavana tenure in South Malabar is a permanent
DC, and where land has been granted on it for
.Tvices rendered prior to the grant the landlord
.i.nnot eject the tenant so long as the land remains
1 the family of the grantee. Quaere: Whether, in a
.ase where such a grant has been made for services
0 be rendered subsequently to the grant, it may be
jesumed by dispensing with the services or only
/hen the services are discontinued and the necessity
rises for having them performed by others. Tuey-
iAN Nair v. Zamokin of Calicut (1004)
' I. L. R. 27 Mad. 202

Anubhavam'

'II 'lis. meaning of — Whether the use of the uord creates
rredeemable tenure depends on the particular
niment in each case — Limitation Act {XV of
), Art. 131 — Applies only, when absolute pro-
■I <old. A stipulation in a kanom deed that a
I in amount in grain or money is granted to the
lortgagee as anubhavam does not necessarily
'reate an irredeemable tenure. The word ' Anu-
bhavam' will create an irredeemable tenure only
ihen used with reference to the tenure itself, but
ihen used M'ith reference to the allowance, such
'.lowance will be perpetual, but not the tenure.
(Whether, in any particular case, the word creates
ia irredeemable tenure or only a perpetual rent
large in respect of the allowance must be decided
• !ie language of the document. If the amount
i" grant is not specified and if the terms of the
!inent indicate that only a fixed rent is reserved
!.e grantor and the rest of the produce is given
Anubhavam,' an irredeemable tenure will be
i^-iited ; but otherwise, if the amount of the grant
1 fixed and the rest is reserved as rent. Thayyan
'air V. The Zamorin of Calicut, I. L. R. 27 Mad. 202,
' irod to and distinguished. Art. 134 of Sch.
'■ the Limitation Act applies only to cases where
vendor purports to sell the property as his
lute property and the vendee purchases it as
Eadnnath Das v. Gisborne, 14 Moo. LA. 1,
ffcrred to and followed. Vythilingam Pillai

.ITHIRAVATIAH NaIR (1906)

I. L. R. 29 Mad. 541
[ALABAR LAW— INHERITANCE.

!• ^ Issue of parents governed

V' different systems of law. Where a woman

''"gingti a Malabar tarwad governed by the
•irumakkatayam law (succession by nephews) has

MALABAR LAW— INHERITANCE—

C07ltd.

Issue by a man who is governed by the Makkatayam
law (succession by sons), such issue are prima facie
entitled to their father's property in accordance
with the Makkatayam law, and to the property of
their mother's tarwad in accordance with the Maru-
raakkatayam law. Chathunni v. Saxkaran

I. L. R. 8 Mad. 238

Devolution
-Mahomedan

j property — Manimalclcatayam Inw-
\ A deceased as well as his paternal ancestors had
j followed the Mahomedan law ; but his mother had
been a member of a tarward which held property
subject to Marumakkatayam law. On its being
contended that in such a case the property of the
deceased, whether derived from his father or mother
passed according to the nile of Marumakkatayam
law to his mother's tarward and not to his heirs ac-
cording to the Mahomedan law : —//eZrf, that the
law governing the devolution of the property of
the deceased, derived from either parent but not
held by him as a member of a tarwad subject to
Marumakkatayam law, is the Mahomeadan law.
Assan v. Pathumma . I. L. R. 22 Mad. 494

I 3. Devolution of

j property — Application of Marumakkatayam or Mak-
I katayam law — Presumption where deceased was
j Mahomedan. In North Malabar, where the devo-
I lution of property is in question, if the late owner
was governed by the Mahomedan law, the presump-
tion would be that the law governing the devolution
of his estate would be the Mahomedan law, not-
withstanding that the deceased was, through his
mother, interested in tarwad property. In Assam
V. Pathumma, I. L. R. 22 Mad. 491, the pro-
perty, the devolution of which Mas in question, had
belonged to a person, who was admittedly governed
by Mahomedan law. That case should not be
understood as laying down that in every case
between Mahomedans in North Malabar, even when
they are members of a Marumakkatayam tarwad,
the devolution of property is governed by the Maho-
medan law, until the contrary is shown. Where
the deceased has followed the Marumakkatayam
law, his self-acquired property passes, on his death
to his tarwad. Kunhimbi Umsia v. K axdv ^Ioi-
THiN (1904) . . . L L. R. 27 Mad. 77

4. Nambudris— /«/ic/-//fl«ce — Sar-
vasvadhanam marriage — Rights of son. Among
Nambudris in Malabar, the son of a daughter given
in the Sarvasvadhanam form of mai-riage does not
inherit in the family of his father so long as other
heirs exist. Kumakan v. Nakayanax

I. L. R. 9 Mad. 260

5. Appoinlmcht of

heir — Nambudris, their personal law — Potter of
disposing of tarwad property by an antharjanam —
Sarvasvadlumam marriage. Suit by the Secretary
of State to declare a right of escheat of the property
of a Nambudri illom. The last male member of the
illom died about 1859, leaving defendant No. 1, and
her mother the sole surviving members of the illom.
Defendant No. 1 had previously been married to a

( 8075. )

DIGEST OP CASES^

{ 8076 )

MALABAR LAW— INHERIT AN" CE—

contd.

member of another illom by a sarvasvadhanam
marriage, but her husband died without issue. In
1872 defendant No. 1 and her mother — there being
no attaladakkam heirs — appointed defendant No. 2,
an adult member of a third illom, to be manager
and heir of their illom and to marry and rise up
issue for it. The mother and father of defendants
Nos. 1 and 2, respectivelj', were brother and sister.
Held, (i) that Nambudri Brahmans are governed by
Hindu law, as modified by special customs adopted
by them since their settlement in Malabar ; (ii) that
defendant No. 2 had no right to the property of the
illom independently of the appointment of 1872 ;
(iii) that the property of the illom was not the sou-
dayika of defendant No. 1, and as such at her abso-
lute disposal ; (iv) that a Nambudri widow, who is
the sole surviving member of her illom, is not at
liberty to alienate the property' of the illom at her
pleasure ; (v) that there was sufficient evidence of
a custom that a Nambudri widow can adopt or
appoint an heir in order to perpetuate her illom in
the absence of dayadies with ten or three days'
pollution ; and the appointment of defendant No.
2 was valid against the Crown. Qucere : Whether
in such appointment of an heir it is necessary to
direct that he should marry for the illom to which
he is appointed as heir. Vastjdevan v. Secretary
OF State for India . I. L. R. 11 Mad. 157

Mode of succession to pol-

liam — Private property left by poligar. The mode
of succession in a polliam is not such as to render
the holder responsible for the debts of his prede-
cessor. There is not a continuance of the previous
estate in each successive holder, but a fresh estate
created by the gift. However, as respects private
property left by a deceased poligar, liability to the
extent of the assets taken will attach upon the
takers, if there was an obligation upon the owner of
property so taken to pav the debt. Subba Chetty
V. Masti Immadi . " . I. L. R. 3 Mad. 303

7. Exclusion from inheritance

— Aliyasantana law — Uncongenitalinsanity. A. Jain,
who was subject to the Aliyasantana law, made a
will, whereby he disposed of the property of his
family in favour of certain persons, and died. The
plaintiff, a female, was the sole surviving member of
the testator 's family, but it was admitted that she
was, and for more than fifty years had been, a luna-
tic, though she had not been declared to be so under
Act XXXV of 1858 ; it appeared that her lunacy
was not congenital. She sued, by the Collector of
South Canara, the Agent for the Court of Wards.
Held, that the plaintiff was not excluded from in-
heritance by reason of lunacy under Aliyasantana
law, and the will in favour of the defendants was
invalid. Sankxj v. Puttamma

I. L. R. 14 Mad. 289

Makkatayam rule of in-

heritance— Custom of Tiyars in South Malabar.
A community, following the Makkatayam rule,
must not be taken to be necessarily governed by the
Hindu law of inheritance with all its incidents.

MALABAR

concld.

LAW— INHERITANCE

Accordingly, when a member of the Tiyar coi
munity in Calicut, following that rule, alleged ai.
proved a custom that brothers succeeded to se.
acquired property in preference to widows, it v^i
held that the Court should give effect to it. Rai
CHAN V. Perachi . . I. L. R. 15 Mad. 2

9. Tiyans of Sov,

Malabar. On the death of a Tiyan of South Ma •
bar, following the Makkatayam rule of inheritan
his mother, widow, and daughter are entitled

j succeed to his property (acquired by himself a[
I his father) in preference to his father's divid
] brothers. iMBicni Kandan v. Imbichi Penntt
I I. L. R. 19 Madi

10. Thiyyas of C-

cut — Widow — Mother. Among the Thiyyas £
Calicut governed by the Makkatayam law, '5
widow of the deceased owner is a preferential hr
to his mother. Kt7NHI Pennu v. Chiruda

I. L. R. 19 Mad. 4)

11. Sarasvadanom marriagt-
Devolution of property of wife's illom on r
decease without issue — Nambudries — Self-acqu-

I tio7is. First defendant, who was the neply

I of 8, had executed a hypothecation bond ctr

[ certain property in plaintiff's favour, subject ta

j prior mortgage which had been executed by ia-

I uncle in favour of P. The assignee of a dece

against 8 then caused the properties to be attac d

• and proclaimed for sale, when plaintiff preferrea

claim, which was allowed. At a sale which t'k

I place subsequently, N purchased the propij

i subject to P's and plaintiff's debts. N thens-

i signed his right to defendants Nos. 2 to 8, who ]id

P the amount of his debt, but did not pay plairff.

j Plaintiff now sued all the defendants for the aracit

I due under his bond, and claimed that the mt-

I gaged property should be sold in default of y-

ment. Defendants contended that the propity

was not the jenmam of first defendant 's illom, lair

case being that first defendant's senior patual

uncle, 8, had obtained it as a gift from his wi's

illom, and that, in consequence, his nephew, rsfc

defendant, had no right to execute a mortgage 'er

it. Held, that, in the face of this admission, it 'as

impossible for defendants to contend that, onhe

death of 8 's Sarasvadanom wife, 8 lost all his rpts

I over the property of her illom. Whether, unde.lio

I customary law governing the Nambudries of Ti*'

bar, self-acquisitions pass, at death, to the iroe-

diate heits of the acquirer rather than to his iffn,

Qucere : \Vhether, in the case of a Sarasvadt^

marriage, the wife dying without issue, the proipty

I of her illom vests in her husband by virtue c|lii»

j affiliation under that marriage. ChemnaJ^HA

I Attekunnath Lakshmi Amma v. Palak-BTS

Thuppan Nambudri (1902^

I. L. R. 25 Mad.f6a

MALABAR LAW— JOINT FAMILY. \
See Right of Suit — Interest to"p
PORT Right . I. L, R. 11 Madl06
T. L. R. 24 MadJ96

( 8077 )

DIGEST OV CASES*

( 8078

MAIxABAR LAW— JOINT FAMILY—

contd.

1. __^____ Taverai — Succession — Tarwad.
In Malabar the word " taverai " has several dis-
tinct meanings. In the families of the princes all
the houses have separa te property, and the senior in
age of all the houses succeeds to the royalty with
the property specially devoted to it. This mode of
succession may be regarded as rather due to public
than to private law. Private families have some-
times adopted the same customs, but there is the
strongest presumption against the truth of this in
the case of the private family. Families becoming
rery numerous have often split into various bran-
•;hes. In the language of the people, there is com-
munity of purity and impurity between them, but
(immunity of property. In the only sense of
\v ord M-ith which Courts of Justice are concerned,
I Ljple so related are not of the same tarwad.
i\here there are several houses bearing the same
)riginal tarwad name, but with an addition, and
here is no evidence of the passing of a member of
l)ne house to another, there is the strongest ground
for concludinfi that this separation has taken place.
Erambafalli Kokapen Nayar v. Eeambapalli
:henen Nayar .... 6 Mad. 411

Joint property — Acqvisitions

\ot disposed of in lifetime — Family property — Pre-
■ vviftion from position of l:arnavan. By the law of
lalabar all acquisitions of any member of a family
.•hich he has not disposed of in his lifetime form part
f the family property. The acquirer, however,
lay during his lifetime hold, alienate at once, and
;Qeumber, his self-acquisitions. A karnavan, in
ossession of the family funds, is presumed to have
jiade all acquisitions with them and for the benefit
:f the corporate body. But such presumption is
Jot irrebuttable, and his alienation or charge of
jich acquisitions made during his lifetime may be
'alid. Kallati Kunju Mexox v. Pai.at Erracha

jiBNON

2 Mad. 162

— Self-acquired property — As-

\tsfor pnyment of debts of deceased acquirer in hands

i tannad. The self-acquired property of a member

a Malabar tarwad, which, not being disposed of at

!'>ath of the acquirer, lapses into the property

tarwad, enures as assets of the deceased for

lyment of his debts in the hands of the mem-

'f the tarwad. Ryrappan Nambiar v. Kfi.tt

p . . . . I. L. R. 4 Mad. 150

, 4. — Property assigned for sup-

lOPtof females— Zm^?'///// of, to attachment in

lecufcon of decree against karnavan. Property

jsigned by the males of a Nayar family for the

jipport ci the r females s stiil family property,

liable as such to be taken in execution of a

nient against the karnavan. Parrakel

II Menox v. Vadakentil Kunni Penna

2 Mad. 41

•5' — Sale of tarwad property—

•'•5 of karnavan — Assent of members of tarwad,
(ir necessary. There is no rule of Malabar law
the assent of every member of a tarwad is

MALABAR LAW— JOINT FAMILY—

contd,

necessary to render valid the alienation of tarwad
property. Kalliyani v, Narayana

1. L. R. 9 Mad. 266

6. Claim for improvements,

effected by anandravan in tarwad pro-
perty, An^^anandravan has no right to the value
of the improvements effected by him on tarwad pro-
perty upon surrender to the karnavan, when such
improvements are not made with jirivate fnnd.<.

UEAMKrSIAEATH KaNKAN NaYAR V. L'RAMKV.MA-

RATH Tenju Nayar . I. L, R, 5 Mad, 1

7. Right of member of tarwad

to an account — Bight to succeed to vianagtmnd of
family property. An individual member of a tar-
wad governed by the Marumakkatajam rule, has
no right to an account from the karnavan. Each
member of a tarwad has a right to succeed by seni-
ority to the management of the family pioperty.
Ktjnigarattj V, Arraxgadex . 2 Mad. 12

Right to manage illom-

Namhvdri family. Ihe right of the elelest member
of a Nambudri family to manage the illom is abso-
lute ; and where a junior member has in fact
managed it, then this is presumed to have been with
the permission of the former, who may at any time
take up the actual control. Nambiatax Nambvdri
V. Nambiatan Nambudri . . 2 Mad. 110

0. Right to manage tarwad —

Bight to revoke agency. A karnavan who appoints
a junior anandravan as his agent to manage part of
the tarwad property can, on behalf of the tarwad
family, revoke the authority at any time and take
the management into his own hands. Govindax
V Kaxxaran . . . L L. R. 1 Mad. 351

10. Power of karnavan to re-
nounce privileges and duties of ofEce.
Semhle : A karnavan cannot part by contract so as
to be unable to resume them, with the privileges and
duties which attach to his position as karnavan.
Cherukomex edias G'ovixdex Naikv r. Ismai.a

6 Mad. 145

11. Powers of karnavan— ZJe/c-

gation of powers of karnavan to his son. The karna-
van of a Malabar tarwad, having been sentenced
to a term of imprisonment, delegated to his son all
his powers as karnavan pending the expiry of his
sentence. Held, that the delecration was ultra vires
and void. Ch.a.ppax Nayak ;•. .\<si:x Kitti

I. L. R. 12 Mad. 129

12. ^ Alienation of Joint family

property — Signature of kar7uivan as imlicatiitg
consent. According to Malabar law, a sale of family
property is valid when made with the assent, ex-
press or implied, of all the members of the tarwad,
and when the deed of sale is signed by the karnavan
and the senior anandravan if sui juris. Such signa-
ture is prima facie evidence of the assent of the
family, and the burden of proving their dissent lies
on those who allege it. KoxDi Mexox v. Srax-
»inre.\oatta Ahammada . 1 Mad. 248

( 8079 )

DIGEST OF CASES.

( 8080 )

MALABAR LAW— JOINT FAMILY—

contd.

13. Poiver of karna-

van — Anandravan. The assent of the anandravans
is necessary to a sale of tarwad land by a karnavan.
The chief anandravan' s signature to the instrument
of sale is sufficient, but not indispensable, evidence
of such assent. Kaipreta Ramen v. Makkhayil
MiTTOEEN 1 Mad. 359

14. Purchaser, duty

of — Notice. It is the unquestionable law of Mala-
bar that tarwad property is inalienable, except in
cases of adequate family necessity. In such cases
alienations will be upheld ; but it lies upon the pur-
chaser to make out with abundant clearness that the
purpose was a proper one. The assent of the senior
anandravan is some (but rebuttable) evidence that
the purpose was proper. Semb^e : That, consider-
ing the state of Hindu families, a purchaser would
be affected with notice by much slighter evidence
than a purchaser in other countries. Koyiloth-

PUTEN PuRAYIL MaNOKI KoRAN NaYAR ?;. PUTHEN-

puRAYiL Manoki Chanda Nayar . 3 Mad. 294

MALABAR LAW— JOINT

confd.

FAMILY-

IS.

Otii mortgage-

not be removed from his situation except on the
most cogent grounds. The solution of the difiB-
culties which the state of families and property in
Malabar will always create will not be assisted by
bringing in the anarchy and insecurity which will
always follow upon any attempt to weaken the
natural authority of the karnavan. Eravanni

R-EVIVARMAN V. ItTAPU ReVIVARMAN

I. L. R. 1 Mad. 153

Karnavan, Power of. A karnavan singly may make
an otti mortgage. Edalhil Itti v. Kopashon
Nayar 1 Mad. 122

16. ■ Authority of har-

navan of iarioad to alienate endowed property.
The authority of a karnavan to make alienations
of the immoveable property of the tarwad stands
on a different footing from his power to pledge the
credit of the tarwad. The karnavan is not the
agent of the family to make alienations, but must
have special authority in'each case. Ko:mbi Achen
V. Lakskmi Ahma . . I. L. R. 5 Mad. 201

17. Perpetual lea,se— Karnavan,

Powers of. The karnavan of a Malabar kovillagom
executed a kuikanom lease of certain land, the
jenm of the kovillagom, in 1846, and in 1861 his
successor demised the same land to the same
tenants in perpetuity. The present karnavan sued
in 1889 to recover possession of the land. Held,
(i) that the perpetual lease, as being of an im-
provident character, was ultra vires and void ; and
(a) that the original lease was not surrendered by
the acceptance of the subsequent lease. Ramunni
V. Kerala Varma Valia Raja

I. L. R. 15 Mad. 166

18. Position of karnavan —

Trustee — Parties. A karnavan is not a mere trus-
tee, nor do the rules of Courts of Equity- as to the
necessity of making cestui que trusts parties to suits
against trustees by strangers apply to the case of a
karnavan and the members of the tarwad. Status
of a karnavan discussed. Varaxakot Narayanan
Namburi v. Varanakot Narayanan Namburi

I. L. R. 2 Mad. 328

19. — The position of a

karnavan is not analogous to that of a mere trus-
tee, officer of a corporation, or the like. The per-
son to whom the karnavan bears the closest resem-
blance is the father of a Hindu family. He should

20.

Power of karnavan. In

cidents of property held by tarwad and by joini
Hindu family distinguished. A Court has m
power to confer on karnavans larger powers thai
such as are sanctioned by usage. If such power
are insufficient to secure to tarwads the full enjov
ment of their estates, or if they are so limited as i
interpose obstacles to the establishment of neA
industries, the extension of such powers must b
sought from the Legislature. Ponambilat
Parapravan Kunhamod Hajee v. Ponambil.4T
Parapravan Kuttiath Hajee. Tod v. Pona>
BiLATH Parapravan Kunha^iod Hajee

I. L. R. n Mad. 16

21.

Powers restrict

by family arrangement. The ordinary powers
the karnavan of a Malabar tarwad can be restricts
by a family agreement to which he is a party, ai
if, in breach of such agreement, the karnavan mak
an alienation to a stranger who has notice of t
agreement, the tarwad is not bound by the alien
tion. Kanna Pisharodi v. Kombi Achen

I. L. R. 8 Mad. 3

22. — Poiver to set as^

family arrangements. A karnavan is not entitiJL
of his own authority to set aside a family arran -
ment made on behalf of all the members of the t -
wad. KoMTJ V. Krishna

I. L. R. 11 Mad. li

23.

Com,promis^f

doubtful claims hy adult members of a tanmu-
Minors. effect of compromise on. Semble ; Thaa
compromise of a doubtful claim made by the aCjt
members of a tarwad bond fide and in the intei|t
of the tarwad is binding on the minor memb^.
MoiDiN KuTTi V. Beevi Kutti Ummah

I. L. R. 18 Mad,»
24. Position and powers ^f

karnavan — Powers of alienation of property )i
adoption of females— Power to adopt strangers ^
tarwad — Custom.. The litigation between Najrs
in South Malabar was decided according to t|it
laws and usages, some of which, relating toae
descent of property through females, are so esP-
lished as to be judicially noticed without pipt
while others require proof. The large poweiM
the karnavan of a tarwa are essentially forh«
management of his property. His power to '"
nate is limited. He is empowered to adopt so
make persons and their heirs members of the
wad only with the consent of the other men?r>
thereof. ^Vhe^e the members had been reduc( in

{ 8081 )

DIGEST OF CASES.

MALABAR LAW— JOINT FAMILY—

contd.
number to the kcarnavan himself and one anand-
ravan : — Held, that the karnavan could not adopt
at his own discretion without the consent of the
latter, in the absence of a proved custom author-
izing adoption by the karnavan alone. In the
time of the last possible karnavan such a power to
him alone might be essential to preserve the tarwad.
But in the present case the last karnavan had not
been reached ; and the adoption by the actual one
acting alone without the consent of the surviving
anandravan was therefore invalid. Thirttthipalli
Raman Menon v. Vanangattil Palisseri
Raman Menon . . L L. R. 24 Mad. 73
L. R. 27 I. A. 231
4 C. W. N. 810

25.

Karnavan, decree against

-Execution agdinxt tfinvnd property — Sale — Right
of purchaser — Res judicata — RigJit of junior member
oftarivad not impleaded to contest sales of tarwad pro-
' perty in execution of decree against karnavan sued as
such. AVhen the karnavan of a Malabar tarwad
has not been impleaded as such in a suit, and
there is nothing on the face of the proceedings to
'show that it was intended to implead him in his
representative character, tarwad property cannot be
i attached and sold in execution of the decree, even
though it is proved that the decree was obtained for
: a debt binding on the tarwad. Although the pro-
I perty of a tarwad may be attached and sold in exe-
cution of a decree when the karnavan is sued as
I representative of the tarwad, members of the tar-
wad who are not parties to the proceedings, and
I have not been represented in the manner prescribed
. by the Code of Civil Procedure, are not estopped
I from showing that the debt for which the decree
was passed was not binding on the tarwad. Ittia-
I ii\N V. Velappan. Krishna v. Nanu

I. L. R. 8 Mad. 484

26. Karnavan's au-

I'lit]! — Tanvad bound by bond fide acts of — Pro-
lure — Suit against tanvad — Civil Procedure Code,
■'•'). A landlord having obtained a decree against
' karnavan and senior anandravans of a Malabar
1 wad for the recovery of certain lands demised on
I perpetual lease to the tarwad, on the ground that
the tenure was forfeited by the denial of the land-
lord's title by the karnavan, the junior members of
'• tarwad sued the parties to that decree to set
ide the decree and also the forfeiture of the
nnre, on the ground that the karnavan had acted
ipropcrly in denying the title of the landlord. It
1^ found that the karnavan acted bon4 fide in
■nying his landlord's title and in defending the
it. Held, that the plaintiffs could not succeed.
I'RixGA Mangalath Gopalan Nayar r. Valta
1 vMRFRATTi . . . I. L. R. 7 M ad. 87

27. Binding efjert on

I rwad. The karnavan of a Malabar tarwad,
vins sued to redeem certain land belonging to the
'< rwad, which had been demised on kanam, con-
^' nted to abide by the oath of the mortgagee as to
'le genuineness "of the kanam. The mortgagee
'laving taken the prescribed oath, the suit was

MALABAR LAW-JOINT FAMILY—

contd.
dismissed. Held, that the junior members of the
tarwad were not estopped by the decree in such suit
from redeeming the land. Where fraud or breach
of duty by a karnavan is proved, his act must be
treated as a fraud upon his power, and will not bind
the tarwad. Thenju v. Chimmu

L L R. 7 Mad. 413

28. TA" Valiya

Rajah of a Icovilagom- sued as such — Liability of
kovilagom properties. Semble : That a decree pass-
ed against the Valiya Rajah of a kovilagom is
prirnd facie binding upon his successor and his
kovilagom. Kerala Varma Valiya Rajah v.
Shangaram . . I. L. R. 16 Mad. 452

29. ^ Suit hit an-nndra-

mns to set aside a sale in execution of decree against
their karnavan, when maintainable. The lands sued
for being'the jenm of a devasam were sold in execu-
tion of a decree obtained by defendant No. 1 against
the uralans. Plaintiffs, being the anandravans of
the uralans, sued to set aside the sale, alleging that
the debt was not contracted for devasam purposes,
and that the decree was collusive. Held, that the
decree was binding on the plaintiffs unless it had
been obtained bv fraud and collusion. Kelf »-.
Paidel . . " . . L L. R. 9 Mad. 473

30. — Suit to set aside

decree and recover lands sold binder it. In suits by a
branch karnavan of a Malabar tarwad to recover
certain lands belonging to his branch tarwad, which
had been mortgaged by a former branch karnavan,
the plea was that the plaintiff had no right to sue
without the authority of the senior member of the
family, the velia kaimal. Upon an issue sent
down (in special appeal) by the High Court, it was
found by the Civil Judge that there was no binding
and peculiar custom in the family depriving the
senior member of all manaaement of the property,
and vesting it in the branch karnavans. Upon the
final hearing it was contended that the contrary
had been so irrevocably fixed by judicial decision as
to prevent the matter from being open to question,
and that this finding was bad in law. as being op-
posed to binding decrees of competent Courts.
Held by Holloway, J., (i) that there was nothing
compelling the Court to decide, contrary to the
plain rules of law. that this delegation was irre-
vocable ; that perhaps it was not so even by the
delegator, and still less was it so by his ?ucoessors ;
(ii) that the fact of the setting apart of santam pro-
perty, if it was set apart, cnn make no difference,
and as little can the circumstance of the income
reserved : (iii) tliat there was nothing to prevent
the Court from deciding that the Civil Judge was
risht in saving that" this was an ordinary
Malabar tarwad : and (iv) that the renun-
ciation before the Sudder Court was not even irrevo-
cable as aaainst him who made it. and certainly
could not have the effect of depriving the senior
member, for all future time, of the rights which the
law of the country conferred upon him. with the
correlative duties" upon his becoming senior. By

( 8083 )

DIGEST OF CASES.

( 8084 )

MALABAR LAW— JOINT FAMILY—

contd.
Scotland, C.J. — That the Court was not constrain-
ed to hold that the irrevocability of the arrange-
ment effected in 966 by the former head of the
family, as to the apportionment of the family pro-
perty between two taverais, and the management of
each taverai's allotment by its senior member, was
a matter conclusively adjudicated in the course of
the litigation, of which there was proof in the
records ; that such arrangement operated only as a
personal renunciation and delegation of the rights
of management possessed by the then head of the
tarwad ; and that, assuming it to have been irre-
vocable by him, it was not binding on the third
defendant, admittedly the head of the family, by
right of seniority. Appuni alias Ayampali.i
Raman Kumaran v. Ayanepalli Ekanatha
Thavai Vaeikaenavan . . 6 Mad. 401

31.

Suit against

karnavan and senior female member of a tnrwad-
Evidence of intention to sue defendants as repre-
sentatives of the tarwad. The karnavan and senior
female member of a Malabar tarwad executed a
hypothecation-bond, on which a suit was brought
against them asking for the sale of the tarwad pro-
perty. The defendants had represented the tarwad
in other suits, but were not in this case expressly
sued in a representative capacity. The plaintiff
obtained a decree. Held, that the decree was
binding on the tarwad. Sttbramanyan v. Kali

I. L. R. 10 Mad. 355

A sued for pos-

session of certain shops belonging to a Malabar tar-
wad which had been attached in execution of a
personal decree passed against a karnavan in a
suit on a private debt. In the execution-proceed-
ings an objection petition was put in, stating that
the shops were stridhanam, and was rejected ; and
the order of rejection was not appealed against
for one year. Respondents Nos. 1 to 4, the
husbands of the persons who put in the objection
petition, were in possession and were now sued
for possession. The plaintiff was as^^ignee of pur-
chaser at the execution-sale. Held, that upon
the facts found the plaintiff acquired nothing
under the Court-sale. Achtjta v. Mamisiavxt

I. L. R. 10 Mad. 357

Representative

of tarwad. The karnavan and an anandravan of a
Malabar tarwad were authorized by a karar to man-
age the affairs of the tarwad. A decree was ob-
tained against them, and land belonging ' to the
tarwad was attached and sold in execution. The
plaint did not describe the defendants otherwise
than by their individual names ; but the plaintiff's
claim was, inter alia, in respect of the breach of a
contract by the defendants to put him into posses-
sion of certain land which was expressed to be " the
jenm of the defendant's tarwad." It was found in
the present suit that the amount decreed in the
prior suit constituted a debt due by the tarwad.
Held, that the decree and the execution -sale did not
bind the tarwad. Dauiat Ram v. Mehr Chand, I.

MALABAR LAW— JOINT

contd.

FAMILY—

L. R. 15 Calc. 70, distinguished. Sankaran v.
Parvathi . . . I. L. R. 12 Mad. 434

34. Namhudri — Sale

in execution of decree. A junior member of a
Nambudri illom, of which he was held out as the
manager and de facto karnavan, contracted a debt
for the purposes of the illom. The creditor sued
him on the debt, but did not implead him as kar-
navan, and, having obtained a personal decree,
attached and brought to sale in execution property
belonging to the illom. A son of the judgment-
debtor now sued to set aside the sale. Held, that
the sale should be set aside. Govinda v
Krishnan . . . I. L. R. 15 Mad. 333

35.

-Decree for main-

tenance against karnavan — Execution against tarwao
property. A member of a Malabar tarwad, having
obtained a decree for maintenance against her kar-
navan, assigned the decree to the plaintiff, who pro-
ceeded to execute it against the tarwad property.
The then karnavan objected, and his claim wa3
allowed. In a suit by plaintiff to have it declared
that he was entitled to execute the decree against
tarwad property : — Held,t\\a.t the plaintiff was en-
titled to execute the decree against the tarwad pro-
perty. Chandu v. Raman I. L. R. 11 Mad. 378

36. Decree agattif-

karnavan and senior anandravan not binding on
junior members — Civil Procedure Code, s. 13, expl. J
s. 30. A decree having been obtained against th'
karnavan and senior anandravan of a Malabar tar
wad whereby the tarwad was dispossessed of certaii
land, the junior members of the tarwad who hac
not been impleaded in the suit sued to recover tb
land. Held, that the plaintiff's were entitled t<
recover upon proof that the decree in the forme
suit was not substantially correct, and that the,
were bound to prove mala fides on the part of thei
karnavan in defending the former suit as a cond
tion precedent to recover. Sridevi v. Kei.
Eradi . . . . I. L. R. 10 Mad. 7-

37. Female manri'

ing the affairs of a tarwad — Res judicata. Tt
senior female member of a Malabar tarwad, wb
managed its affairs, instituted a suit on behalf of t\
tarwad and in the capacity of karnavan. Held, {
that a female is not precluded from managing tl
affairs of her tarwad when there is no male memb
in her family capable of performing the duties of
karnavan ; and (ii) that the junior members of tl
tarwad were, in the absence of fraud shown, co
structively parties to the suit, and were according
bound by the decree. Subramanyan v. Gopaj
I. L. R. 10 Mad. 21

38. ■ Res judicata

Cancellation of deeds — Declaratory suit — Wit
drawal of part of claim. A and B, junior membt
of a Malabar tarwad, sued to cancel cettain mo:
gages executed by their karnavan and seni
anandravan, on the ground that the secured de;
was not binding on the tarwad, and to appoit

DIGEST OF CASES.

MALABAR LAW— JOINT FAMILY—

contd.
to the office of karnavan. The last part of the pray-
er was withdrawn. The mortgages were executed
to secure a decree-debt, the decree having been
passed ex parte against the late karnavan of the
tarwad. No fraud was alleged, but the lower
Courts found that the karnavan had been guilty of
fraud in allowing the decree to be passed ex parte.
The plaintiffs had not been parties to the decree,
and the other junior member of the tarwad who had
been joined were exempted from liability. Held,
that the nature of the debt was not res judicata,
and that the plaintiffs were entitled to a declara-
tion that the mortgages in question were invalid
as against them. Moidin Kutti v. Keishnan

I. L. -R. 10 Mad. 322

Suit by junior

members of a tarwad — Suit to restrain execution of
a decree obtained in a suit against plaintiffs kar-

t navan — Right of suit. In a sxiit brought in a
subordinate Court by the junior members of a Mala-

, bar tarwad against their karnavan and others, the
plaintiffs prayed for a declaration of the uraima
right of their tarwad in a certain devaswara, and for
an injunction to restrain the defendants, other than
the members of the plaintiff's tarwad, from exe-
cuting a decree of a District Court, passed on appeal
from a Munsif 's Court, whereby certain lands of the
devaswara were decreed to be surrendered to them
in the character of uralers ; it appeared (i) that
plaintiff's karnavan was a party to the suit in which
the abovementioned decree was passed ; (ii) that
the plaintiff's tarwad was otherwise entitled to the
uraima rightby adverse possession, if not immemo-
rial title. Held, that the plaintiffs were entitled to
maintain the suit without proof of fraud and collu-
sion on the part of their karnavan in the previous
-uit ; and that they were entitled to the decree
us prayed. Appu v. Raman

I. L. B. 14 Mad. 425

40. Former decrees

yiinst karnavan — Civil Procedure Code, s. 13 —
mitation Act {XV of 1877), Sch. 11, Arts. 91,
i^O — "i?es judicata." In a suit for a declaration
that the members of the Nambudri illom to which
the plaintiffs belonged were the sole heirs and suc-
••ssors of an illom known as Kiluvapura of which the
i tural line liad become extinct, and for possession
i certain land which had formed part of its pro-
perty, the defendants were the karnavan and man-
ager of the plaintiffs' illom and the members of
mother illom. It was found on the evidence that
:he plaintiffs' karnavan had been adopted into the
iiluvapura illom, and that subsequently that illom
md the plaintiffs' had been amalgamated under a
tarar executed by, among others, the wife of the
ast male member of the Kiluvapura illom, and that
he had died less than twelve years before this suit.
Hio defendants, other than the karnavan and man-
-:>'r of the plaintiffs' illom, asserted a right to a
ii'MPty of the property of the Kiluvapura illom
with which, however, it was now found on the
vidence that they were less closely connected

MALABAR LAW— JOINT FAMILY—

contd,
than the plaintiffs), and it appeared that that right
had been similarly asserted in suits brought after the
date of the karar above referred to by a member
of the defendants' illom against the karnavan and
manager of the plaintiffs' illom, and that decrees
had been passed therein negativing the title now
set up by the plaintiffs, and that part of the pro-
perty now claimed was held under one of those
decrees. The plaintiffs did not ask that those de-
crees should be set aside. Held, that (i) the suit
was not barred by limitation either under Art. 91 or
Art. 120 of the Limitation Act ; (ii) that it was un-
necessary for the plaintiffs to prove mala fides
against their karnavan in respect of his conduct
in the former suits or to seek that the decrees passed
therein be set aside, and that those decrees did not
constitute the present claim res judicata, as the
karnavan was not then impleaded in his capacity
as such ; and (iii) that the plaintiffs were entitled to
a decree as prayed. Shankaran v. Kesavax

L L. R. 15 Mad. 6

41, Ali'jasaniana

law — Unjustified alienation of family property by
a member of undiinded family — Partition, Right of
— Adverse possession — Limitation. In 1851 the eja-
man of an Aliyasantana family mortgaged family
property to the ancestor of some of the defendants
who and whose alienees were now in possession.
The mortgagor died leaving, besides one brother,
two sisters, each having a son — the family remain-
ing undivided. In 1856 one of the sons, with the
concurrence of his uncle and mother, conveyed the
land to the mortgagee, but this transaction was not
justified by any family necessity ; and in 18.57_the
other son and his mother sold their undivided
moiety to the plaintiff's predecessor in title. In a
suit to redeem the mortgage of 1851, the plaintiff
obtained a decree for redemption of a moiety of the
j mortgaged property. Held, that, although it may
have been supposed in 1857 that compulsory parti-
tion was permitted by the Aliyasantana law, yet as
the rieihtto the half share purported to be sold in
1857 had no legal existence, nothing could pass
by that sale, and the suit should be dismissed.
Neither the original mortgagee nor his .son could
rely on the twelve years' rule of limitation unless
he" could prove a subsequent valid sale, in the
absence of which his possession must be taken to
retain its original character. Bvaui v. Puttaxn-a
I. L.R. 14 Mad. 38
42. — • Decree against

karnavan on tarwad debt before partition — Execu-
tion after partition against property of person
j not party to execution-proceediti-gs — Joint decree
\ executed against separate property. The karnavan
of a Malabar tarwad borrowed money for purposes
which rendered the debt binding on the tarwad.
The creditor obtained a decree against the karna-
van in 1879. In 1882 a partition of the tarwad pro-
perty took place. In 1891 property which had
fallen on partition to the present plaintiff's share
was attached and brought to sale in execution of the

( 8087 )

DIGEST OF CASES.

TVEAIiABAR LAW— JOINT FAMILY—

contd.
decree of 1870. He was not joined as a party in
the execntion-proceedins;?. Held, that the Court-
sale did not bind the plaintiff. Sanhara v. Kelu,
I. L. R. 14 Mai. 29, referred to. Kunhappa
Nambiar v. Shridevi Kettilamma

I. L. R. 18 Mad. 451

43.

-Decree against

karnavan on larwid debt before partition — Execu-
tion after partition — loint decree executed against
separate property. In a suit for declaration that cer-
tain land was not liable to be attached in execution
of a decree obtained in 1880, it appeared that the
decree was passed against the judgment-debtor as
karnavan of a Malabar tarwad, and that it was for a
debt incurred for purposes binding on the tarwad.
In 1882 a partition had been come to between the
members of the tarwad under which the property
in suit had been allotted to the plaintiff. Held,
that the state of things when the debt was con-
tracted must be looked to, and at that time the
karnavan was competent to bind all the members of
the tarwad. Any subsequent arrangement in the
family could not affect their obligation to the cre-
ditor, who was not a party to it. The plaintiff's
property therefore was liable notwithstanding the
partition. Krishnax Nambtar v. Krishnan Nair
I. L. R. 18 Mad. 452 note

44. Decree against

karnavan binding on tarwad — Parties. A decree
in a suit in which the karnavan of a Nambudri illom
or a Marumakkatayam tarwad is, in his represen-
tative capacity, joined as a defendant, and which he
honestly defends, is binding on the other members
of the family not actually mide pxrties. Vastt-
DEVAX V. Sankaran . I. L. R. 20 Mad.' 129

45.

Karnavan —

Effect of decree against karnavan representing the
tarwid — Res judicata — Civil Procedure Code, 1882,
ss. 13 and -W. Although the members of a tarwad
or family may, in an irregular fashion, be repre-
sented by a karnavan of the tarwad in a suit, the
decree therein does not raise an absolute estoppel
against members not actually brought on the re-
cord. Ittiachan v. Vellappan, I. L. R.S Mad. 4S4,
and Sri Devi v. Kelu Eradi, I. L. R. 10 Mad. 79,
followed. KoMAPPAX Nambiar v. Ukkaran Nam-
biar .... I. L. R. 17 Mad. 214

46. ■ ■ Customary law

of Mapillas — Multifariousness — Suit by karnavan
— Right of suit. The plaintiff sued as the karnavan
of a Mapilla tarwadto recover lands in the possession
of the defendants who were a donee from and the de-
scendants of a previous karnavan and their tenants.
It appeared that the alleged previous karnavan had
died less than twelve years before the suit was filed,
but more than twelve years before the joinder, as
a supplemental defendant, of one to whom he had
conveyed certain property by way of gift, five years
before his death. An issue was raised as to whether
the rights of the parties were governed by Makka-
tayam or Maruakkatayam law, an:l an order
of a District Munsif, reciting a petition to which

MALABAR LAW-JOIITT PAMILY-

contd.
the alleged previous karnavan was a party, was
put in evidence to show that he had in a particular
instance acted in the capacity of karnavan of a
Marumakkatayam tarwad. Hdd, (i) that on the
allegations in the plaint the plaintiff was entitled to
maintain the suit alone, and that the suit was not
bad for multifariousness ; (ii) on, the evidence, that
the plaintiff had succeeded to the office of the pre-
vious karnavan as alleged, and that the previous
karnavan had followed the Marumakkatayam rule,
although it was shown that other members of the
family had dealt with property, described as self-
acquired under the precepts of Mahomerlan law.
Byathamma v. Avulla . I. L. R. 15 Mad. 19

47. -Mapillas. The

karnavan of a tarwad in Malabar sued to recover
property acquired by his sister (deceased) and now
in the occupation of the defendants, her children.
The parties were Mapillas. The defendants pleaded
(i) that the property had been given to them and
their mother jointly ; (ii) that their mother was not
governed by Marumakkatayam law. The Court of
first instance found the first-mentioned plea to be
good and dismissed the suit, and also found that the
family was governed by Marumakkatayam law.
The Court of first appeal dissented from the above
finding as 1 3 the fir.st plea and without deciding the
second point, remanded the case for the trial of a
general issue as to the mode of devolution of self-
acquired property in Marumakkatayam Mapilla
families in North Malabar ; and ultimately it dis-
missed the suit, ruling that in Marumakkatayam
Mapilla families the self-acquired property of a
female descends to her children, and does not lapse
on her death to her tarwad. Qucere : Whether
that decision was a correct one. Observations as
to the law applicable to Mapillas. Tllikka PaK-
ramar v. Kutti Kunhamed I. L. R. 17 Mad. 68

48. Removal of karnavan from

oflB.ee — Ground for removal. When a karnavan
was found to have made perpetual grants of certain
lands belonging to his tarwad for other than family
purposes, and to have made demises of certain other
lands belonging to his tarwad for unusual periods on
no justifiable ground : — Held,t\ia.t this did not consti-
tute sufficient ground for removal of the karnavan
from his office, his conduct not having been such as
to show that he could not be retained in his position
without serious risk to the interests of the family.
Eravanni Revivarman v. Ittaptj Revivarmax

I. L. R. 1 Mad 153

49.

Grounds for

mo'val — Tarwid property — Powers of karnavan.
The grant of a very improvident lease following on
a course of conduct pursued for some years, in which
the interests of the tarwad were persistently disre-
garded, is sufficient ground for removing a karnavan
from the management of the tarwad property. Era-
vanni Revivarman v. Ittapu Revivarman, I. L. B. J
Mad. 153, approved. Ponombilath Paraprava>"
Kunhamod Hajee v. Ponambilath Parapr.waj;
KuTTiATH Hajee. Tod v. Ponambilath P.^RA-
pravan Kunhamod'Hajee I. L. R. 3 Mad. 168

( 8089 )

DIGEST OF CASES.

( 8090 )

MALABAR LAW— JOINT FAMILY—

co)u:ld.

50. Suit to remove a

Icamavan for mismanatjement a.s de facto karnavan.
A suit was brought to remove A, the karnavan de
jure of a Malabar tarw ad, from office on the grounds
of mismanagement of tarwad property. The acts of
mismanagement complained of \\ere really done by
B as karnavan de tcicto. The above suit was with-
drawn with leave to sue again. A died, and mrs
succeeded by B, against whom the plaintiffs brought
a, suit, to which all the adult but none of the minor
members of the tarwad were made parties, to obtain
bis removal from the office of karnavan, alleging
against him the acts of mismanagement above
referred to. Held, that the grounds alleged sup-
oorted the action. The fact that the misfeasances
• ere committed when B was de facto and not de jure
canravan did not make them the less a ground for
•emoving him from his office of de jure karnavan.
leld, also, that the minor members of the tarwad
vere sufficiently represented on the record. Ktjn-
[AN V. Sankara . . . L L. R. 14 M.ad. 78

51. Karnavan, dis-

■ualification for the office of — Blindnes.-i. Suit to
•emove the defendant from the office of karnavan of
- Malabar tarwad. The defendant had become
)lind after occupying the office of karnavan for
ome years. Held, that the defendant was not a fit

,ierson to be the karnavan of a tarwad, and should
;ie removed from his office. Kanaran v. KtrxJAS
1. L. R. 12 Mad. 307

52. Karnavan, Dis-

ualipcation for office of — Blindness. A blind man
ued, as the karnavan of a Malabar tarwad, to re-
over certain land. One of the defendants, who
laimed, but was not admitted, to be a member of
le tarwad, and who asserted a right as kanamdar
;) the land in question, pleaded that the plaintilf
•as not competent to act as karnavan, or conse-
laently to maintain the suit, by reason of his blind-
ess. Held, that it was for the members of the tar-
I'ad to take this objection, as if they wish a blind
iian to act as their karnavan, he can do so ; the
'efendant therefore was not entitled to raise this

lea. Ukkandak v. Kunhunxi

I. L. R. 15 Mad. 483

lALABAR LAW-

-LEASE.

— Eevenue Hecovery

\ct {Madras Act II of isr;4), s. 3-2— Purchaser
I land at Revenue sale — Liability to pay tenant for
nprovements before obtaining losse-ssion. Where a
anora was granted for R.5, the jenmi agreeing to
ay the tenant the value of his improvements, and

was not alleged that the rent reserved was lower
lan the usual rent for such land, and the object
E the lease was to bring waste land into cultivation :
I'eW, that, having regard to the small amount of the
mom, the transaction must be regarded as in sub-
i ance a lease ; and the engagement made by the
jnmi to pay the tenant the value of his improve-
jients was binding on the Collector under s. 32
i' Madras Act II of 1S64. A purchaser of the

nd at a revenue sale was therefore bound to pay

MALABAR LAW—LEASE— concZi.
compensation to the tenant for improvements be-
fore he could obtain posse.ision. Meppatt Kln-
hamad v. Chathu Naik (1904)

1. L. R. 27 Mad. 373

MALABAR LAW— MAINTENANCE.

-Right to rQaintenance^.47

dravan. Semble : An anandravan 's right to main-
tenance is merely a right to be maintained in the
family-house. Kunigaratu v. Arrangadex

2 Mad. 12

■^- Anandravan.

1 hough the general rule is that an anandravan
cannot have separate maintenance, there arc ex-
ceptions to that ruIe.^PERU Nayar <•. Avvxprvx
Nayar . . . L L. R. 2 Mad. 282

"• ' Anandravan —

Mishehaviour. A karnavan (manager) of a Malabar
tarwad (family) is not justified in excluding an
anandravan (junior member) from participation in
the income of the family property on the ground of
misbehaviour or because the anandravan has other
property of his own.s Putanvitil Teya.v Xair v.
Ptjtanvitil Ragavan Nair I. L. R. 4 Mad. 171

4' ' Suit by member

of tarwad residing in family house — Remedy. A
member of a Malabar tarwad living in the tarwad
house cannot bring a suit against the karnavan for a
monthly allowance in money on the ground that the
karnavan dees not make sufficient provision f( r his
or her maintenance. Kuxhammatha v. Kvxhi
KuTTi Alij . . I. L. R. 7 Mad. 233

Karnavan —

Practice of alloioing karnavan half the net income
disapproved. In suits for maintenance against the
karnavan of a Malabar tarwad, the practice of
awarding one moiety of the net income of the tar-
wad to the karnavan is not authorized by law.
Narayani v. Govinda . 1. L. R. 7 Mad. 352

6. ■ Member of taru-ad

with private means. The fact that a member of
Malabar tarwad has private means does not affect
his right to subsistence where the income of the
tarwad is sufficient to provide for all a suitable sub-
sistence ; but when the income is in sufficient for this
purpose, the karnavan must take into considera-
tion the private means of each member. Putanvitil
Teycvn Nair v. Putanvitil Ragavan Nair, I. L. B. 4
Mad. 171, distinguished. Thayu Kuxjiama v.
SnuNGUNNi Valia Kymai- . L L. R. 5 Mad. 71

7. : Maintenance

claimed by anandravans living in tarwad house
against karnavan, who had left tarwad house and
neglected to maintain family. \\'here a suit was
brought by an anandravan of a Malabar tarwad
living in the family house for maintenance against
the karnavan, who had left the family house,
resided elsewhere, and neglected to maintain plaint-
iffs : — Held, that the plaintiffs were entitled to main-
tain the suit. Kunhammatha v. Kunhi Kutti Ali,
I. L. R. 7 Mad. 233, distimzuishod. Kksava v.
Unnikkaxda . . I. L. R. 11 Mad. 307

( 8091 )

DIGEST OF CASES.

( 8092 )

MALABAR LAW— MAINTENANCE—

concld.

8. . Member of tarwad

Taverai. A member of a tarwad divided into

" taverais " with separate dwelling-houses may
claim to be maintained by the karnavan in the
house of the " taverai " to which he or she belongs.
Chalayil Kandotha Nallakandiyil Pauvadi v.
CHALAYir. Kandotha Chathtj Nambiar

I. L. R. 4 Mad. 169

9 . Maintenance of

famdlies of male members by tarwad. In North
Malabar the male members of a Nayar tarwad are by
custom entitled to receive from the karnavan an
allowance for the maintenance of their consorts and
children w'tiile living in the tarwad house. Vari-
KARA Vadaka Vitttl Valia Parvatthi v. Vari-
KARA Vadaka Vittil Kamarau Nayar

I. L. R. 6 Mad. 341

10.

Mafillas — Se-

parate maintenance — Marriage. The junior
members of a Mapilla tarwad governed by the
Marumakkataj'am law are entitled to maintenance
from the tarwad when living in the houses of their
consorts and also to a higher rate of maintenance
when living with their consorts than when living as
single men. Chowakaran Orkatari Bappan v.
Chowakaran Cheria Orkatax Makki

I. L. R. 6 Mad. 259

11. Karnavan, In-

sufficient maintenance of junior members by — Suit by
junior members living in a tarwad house apart from
the karnavan. Suit by twelve junior members of a
Malabar tarwad against the karnavan for arrears
of maintenance. The plaintiffs lived in a tarwad
house apart from the karnavan, who did not allege
that this arrangement was contrary to his wishes,
but pleaded that he provided for them adequately.
Held, that the plaintiffs were entitled to a decree
for a reasonable amount by way of maintenance, in
computing which allowance should be made for the
income of the tarwad property in their posses-
sion. Nnllahandiyil Parvadi v. Chathu Nambiar, I.
L. R. 4 3Iad. 169, followed. Chekkutti v Pakki
I. L. R. 12 Mad. 305

12. Karnavan, Right

of, to sue a member in possession for maintenance.
Where properties of a Tavazhi are in the possession
of a member other than the Karnavan, the latter
cannot sue such member for maintenance, but only
for possession of such properties. Nambtamuttil

POKKER U. KiTHAKKI KUNHIPATUMMA (1905)

I. L. R. 29 Mad. 206

MALABAR L AW— MORTGAGE.

1. ^Kanam mortgage. The ques-
tion whether a kanam is to be regarded as a lease of
a mortgage depends upon the object for which the
tenure was created. Where a kanam is granted as a
security for the repayment of money advanced to
the jenmi, the law of limitation applicable to mort-
gages must be applied. Nbllaya Variyath
SiLAPANi V. Vadakipat Manakel Ashtamttrti
Nambudri . . . I. L. R. 3 Mad. 382

MALABAR LAW— MORTGAGE— conJd.

Failure to give

possession — Right of suit for money advanced on it.
When the deraisor of land under a kanam agree-
ment is unable to give possession, the demise may
repudiate the contract and recover the amount'ad-
vanced. Vayalil Pudia Madathemmit. Moidis
Kuttiayissa v. Udaya Varmavalia Rajah

2 Mad. 315

Suit for redemp-

tion— Express agreement. Although the right to
hold for twelve years is inherent in every kanam ac-
cording to the custom of the country, it is competent
to the jenmi to exclude this right by express agree-
ment. Shekhara Paniker v. Rartj Nayar

I. L. R. 2 Mad. 193

Right to hold fo

twelve years. A kanam-holder who denies his
jenmi' s title forfeits his right to hold for twelve
years. Ramen Nayar v. Kandapuni Nayar

1 Mad. 445

5. Right to hold for

twelve years. A kanamdar'srightto holdfor twelve
years depends on his acting conformably to usage
and the jenmi's interest, and is lost if he repudiates
the jenmi' s title. It makes no difference when this
is first done in his answer. Mayavanjari Chu-
maren v. Nimini Mayuran . . 2 Mad. 109

Right of redemp- i jy

tion — Denial of jenmi' s title. Where a first kanam-
holder, in his answer to a redemption suit by a se-
cond kanam-holder, for the first time denied his own
kanam, and alleged an independent jenman right : —
Held, that he had not thereby forfeited his right to
rely upon the option to make a further advance, to
which as kanam-holder he was entitled, though the
denial and allegation were false, and though his
documents in support of such allegation were forged.
Paidal Kidavxj v. Parakal Imbichuni Kidavc

1 Mad. 13

7. Rights under a

kanam— Denial of jenmi right by Icanamdar —
Adverse possession — Limitation — Declaration of
escheat. A demised certain lands on kanam to 5 in
1S53. B afterwards committed an offence under
the Mapilla Act, and the lands were handed over for
thebenefitof his representatives to C. Government
subsequently, without making A a party to their
proceedings, declared the lands to have escheated,
and in 1863 sold them to C. A's representatives
now sued to recover the lands from Cs representa-
tives, who set up an adverse title and alleged that
the suit was time-barred. Held, that C was at the
time of the escheat, in the position of a manager
for mortgagees ; that the escheat proceedings of
which the mortgagor had no notice did not affect
his rights ; that denial by the mortgagee in posses-
sion of the mortgagor's right to redeem is not
sufficient to convert such possession into adverse
possession. Mtjssad v. Collector of Malabar
I. L. R. 10 Mad. 189

8. Right of a jenmi,

who is a judgment-creditor, to sell the kanam right be-

( 8093 )

DIGEST OF CASES.

( 8094 )

lALABAR LAW— MORTGAGE^:on«(i.

)re the expiry of twelve years. A jenmi,^who has
btained a decree for arrears of rent, may sell the
anam before the expiry of twelve years; such a sale
oes not put an end to the kanam, but only transfers
lie kanamdar's interest to the purchaser at the
xecution-sale. Achutan Nayar v. Keshavan

I. L. E. 17 Mad. 271
9. Malabar kmiam

-Reclemplion, value of improvements on — Deprecia-
on of, betireen decree and date of redemption. A
ecree for the redemption of a kanara in Malabar was
assei in December 1894, when there were on the
,nd improvements in the form of trees, etc.,' to the
ilueof Rl,429. Within the six months limited by
le decree for redemption the mortgagor applied for
-ecution, and it appeared that the value of im-

ivements had diminished by the loss of trees to
le value of R157. The loss was the result of want

water, and was not attributable to neglect on the
irt of the mortgagee. Held, that the loss should
11 on the mortgagee. Krishna Patter v. Srini-
iSA Patter . . . I. L. R. 20 Mad. 124

10.

Transfer of in-

rest — Appointm,ent of a creditor as agent to collect
nfs and appropriate part towards the debt — Mort-
gee in possession — Usufructuary mortgage. In a
it to redeem a kanam on certain land, the jenm of
levaswam in Malabar, it appeared that the plaint-
held a mel-kanam in respect of the same land
:ecuted to him (subsequently to the date of the
mam sought to be redeemed) by defendant No. 3,
e samudayam of thedevaswam. Defendant No. 3
presented one C, in whose favour the uralers had,
1741, executed a document appointing him
mudayam and stating that they had received
)m him a kanam of 1S,000 fanams on the deva-
am properties and providing that he should ap-
opriate part of the rents towards the loan. It
•l)eared that in a siiit to eject tenants, the uralers
d sued as co-plaintiffs with the samudayam ;
subsequent suits, however, two of the uralers
il sued other tenants for rent and the samudayam
r an account ; both of these suits were dismissed
-econd appeal, and in the judgments of the High
lut the samudayam was described as a mortgagee
|i' issession. Held, in view of i the conduct of the
rHes and on the terms of the document of 1741,
>; the samudayam was not thereby constituted a
I rsagee in possession, and the mel-kanam set up
the plaintiff was invalid. Krishnan v. Veloo
I. II. R. 14 Mad. 301

11. — Limitation — Cre-

of a devaswam placed in possession as samu-
,. In a suit brought b}' tlie uralers of a deva-
1 in Malabar to recover certain land in the pos-
1 of the defendant, it appeared that the de-
nt held under an instrument dated 1741,
.1 L by his predecessor in title was appointed samu-
vam and was authorized to appropriate part of
'i rents of the devaswam properties to the interest
■ a loan made by him to the uralers. Two of these
ilers had brought a previous suit against the de-
idant for an account of the rents received by him

MALABAR LAW— MORTGAGE— con?(i.

and for an injunction : that suit was dismissed on
second appeal when the High Court described the
defendant as a mortgagee in possessioi, but the
question whether or not he was a mortgagee with or
without possession was not then directly and sub-
stantially in issue. Held, that the Court having
held, following Krishnan, v. V eloo, I. L. R. 14 Mad.
301, that the defendant was not a mortgagee in
possession under the instrument of 1741, the suit
was not barred by limitation. Ramax v. Shatha-
NATHAN . . , . I. L. R. 14 Mad. 312

12. Bight of tenure.

A kanam mortgagee does not forfeit his right to hold
for twelve years from the date of the kanam by
allowing the porapad to fall into arrear. Rautan
V. Kadangot Shupan ... 1 Mad. 112

See also Kunju Velan v. Makavikrama Zam-

OKiN. Krishna Mannadi v. Sankara Manavan

1 Mad. 113 note

13. Ejectment before

expiration of time. A mel-kanamdar cannot eject a
kanamdar or his assignee before the expiration of
twelve years from the date of the kanam. Prama-
TAN TupEN Nambudripad V, Madatil Ramen

1 Mad. 296

14. • Right to redeem,

and make further advances. The holder of a mel-
kanam may recover the land from the kanam-holder
after the expiry of the term of the kanam, on pay-
ment of the sum advanced by the latter and of the
value of improvements. The jenmi is not bound to
give the kanam-holder the option of making further
advances before demising to another tenant or kan-
am. Marakar v. Munhorui.i Parameswarax
Nambudri . . . I. L. R. 6 Mad. 140

15.

Tenant's right (o

improvements prior to demise sued on — Presumptic
— Usage. There is no universal usage in Malabar,
nor any presumption that a tenant is not entitled to
corajtensationfor improvements effected prior to the
date of the kanam under which he holds, and not
specially reserved to him by the kanam deed. Mr-

PANAGARI N.UIAYANAN NaYAR V. VlRTTFATCH AN

Nambudripad . . I. L. R- 4 Mad. 287

16. Redemption, of

kanam — Amount to he ascertained before decree —
Value cf improvements to he ascertained before
decree — Jenrai — Right to deduct arrears of rent
due from sum payable. When a decree is passed for
recovery of land demised on kanam on payment of
the amount received as renewal fee, the amount
must be ascertained at the trial and inserted in the
decree. On taking an account between the jenmi
(mortgagor) and kanam-holder (mortgagee), the
former, on redemption, has by custom a right to
deduct all arrears of rent due to him from the sum
which he has to pay to the latter, before recovering
possession of the land. Kanna Pishabodi v.
KoMBi AcHEN . . . L L. R. 8 Mad. 381

17. -_ Bight to set off

arrears of rent against claim for improveinents —
Mortgage, of right of kanamdar^ hoto affected.

( 8095 )

DIGEST OF CASES.

MALABAR LAW— MORTGAGE— cow/c?.

A Malabar jenmi (mortgagor) being entitled, on
redemption of the land, to set off a claim for arrears
of rent due to him by the kanam -holder (mortgagee)
against the claim of the latter for compensation
for improvements, a pledge of his rights to a third
party by the kanam-holder will not prejudice the
right of the jenmi to set off his claim for arrears of
rent against thesum found due to the kanam-hold-
er for improvements. Achuta v. Kali

I. L. R. 7 Mad. 545
Sec Gressa Menon v. Sama Patter

I.L. R. 21 Mad. 138
18. Time for redemp-
tion. Where a deed was described as a kanam deed
and contained stipulations as to compensation for
improvements, a clause to the etiect that the land
was to be surrendered " whenever the amount ad-
vanced is ready " will not entitle the mortgagor to
redeem before the customary twelve years' term has
expired, but must be construed as referring to a
period subsequent to the term of twelve years.
Kakara v. Govindan . I. L. R. 5 Mad. 310
19. Kanam — Con-
struction of redemption clause — Time for redemption.
The primary intention that a kanam is to be re-
deemed only after 12 years can be negatived either
expressly or by implication by a special clause.
Puthenpurayil Kuridipravan Kanara Kiiriip v.
Puthenpuraijil Kuridipravan Govindav; I. L. R.
5 Mad. 311, distinguished. Ahmed Kutti r.
Kunhamed . . . L L. R. 10 Mad. 192

20. Redemption suit

brought within twelve years from the date of kanam
— Special stipulation for redemption. In a suit to
redeem a kanam executed less than twelve years
before suit it appeared that the kanam instrument
provided for the surrender of the property " if at
any time the property should be necessary " for the
jenmi. It was found that no special exigency had
been established by the plaintiff. Held, on the
above finding, that the special stipulation did not
oust the general rule that the kanam was not re-
deemable for twelve years, and the suit was there-
fore premature. Mahomed v. Alt Koya

I. L. R. 14 Mad. 76

21. l7nprovements —

Trees of spontaneoiis growth— Redemption suit—
Costs of ascertaining value cf improvements. Ac-
cording to Malabar custom, kanama (mortgages)
must, on the expiry of the term, either be discharged
or renewed. On redemption of a kanam, the kanam
holder (mortgagee) is not entitled to claim under
the head of improvements the value of trees of
spontaneous growth. In suits to redeem land de-
mised on kanam tenure, on payment of the value of
improvements, the costs of the adjudication ne-
cessitated bythe refusal of either party to accept
the terms of compensation offered or demanded
by his opponent should, when those terms are
reasonable, be charged on the party refusing.
Narayaxa v. Narayana . I. L. R. 8 Mad. 284

22. — Redemption on

terms of admitted demise — Improvements — Local I

MALABAR LAW— MORTGAGE— con<d

custom— Jenmi' s right to a inoicty— Arrears of
rent— Jenmi s right to deduct from amount payahL
by him. In a suit brought against A and B for
redemption of land alleged to have been demised
to A on kanam tenure in 1874, and to be held by fi
under A, it was found that the demise of 1874 was
invalid because it had been executed fraudulently •
but inasmuch as B admitted that he was in posses-'
sion under a similar demise of 1855, it was held that
the plaintiff was entitled to redeem on the terms of
the demise admitted by B. Kunhi Kulti Nair v
Kutti Maraccar, 4 Mad. 359, followed. Local
usage of Ernad, by which the jenmi on redemption
ot a kanam takes credit for one-half of the value of
mprovements effected by the kanamdar, upheld
The right of a jenmi to deduct arrears of rent from
the amount payable by him on redemption of a
kanam, being a customary incident of the tenure is
not affected by the three years' period of limitation
for recovery of arrears of rent. Unxian v. R \m a
I. L. R. 8 Mad. 415

„23. Transfer of

Property Act (IV of Iss2), s. 60— Partial re-
demptton— Indivisibility of mortgage. The karna-
van of a Malabar tarwad, having the jenm title to
certain land and holding the uraiama right in a cer-
tain public devaswam to which other land belonged,
demised lands of both descriptions on kanam to the' '
defendant's tarwad, and subsequently executed to
the plaintiff a mel-kanam of the first- mentioned
land and purported to sell to him the jenm title to
the last-mentioned land. In a suit brought by the
plaintiff to redeem the kanam and to recover
arrears of rent '.—Held, that the defendants were
not estopped from denying the plaintiff's right to
redeem on the ground that he did not represent the
devaswam, and that the plaintiff, who had denied
the title of the devaswam in the Court of first in-
stance, was not entitled to redeem the kanam as a
whole, by virtue of his admitted title to part of
the premises comprised in it. Konna Paxikar
V. Karunakara . . I. L. R. 16 Mad. 328

24. Kanara and otti tenures—

Time for redemption. Per curiam : It is settled
law that in the case of kanam and otti mortgages it
is not competent to the mortgagors to redeem before
the arrival of the appointed time. Per Innes, J.,
dissenting from Mashook Ameen Suzzada v. Marem
Reddy, S Mad. 31, if in the case of any mortgage the
period for redemption is postponed to a fixed date
by a special agreement, effect should be given to
such agreement. Keshava v. Keshava

I. L. R. 2 Mad. 45

25. -. Prior right of

tenant to make further advances — Right to redeem.
The prior right of an ottidar to make further ad-
vances is established by authorities, but there is no
authority to support a kanamdar's claim to a similar
privilege. An ottidar may redeem a prior kanam.
Kunhamtj v. Keshavan Nambudri

I. L. R. 3 Mad. 24e

26. Otti mortgage — Denial of

title — Forfeiture of right. An otti-holder, like a

( 8097 )

DIGEST OF CASES.

( 8098 )

ALABAB LAW— MORTGAGE-confd.

namdar, forfeits his right to hold for twelve years
denying the jenmi's title. Kellu Eradi v.

APALLi 2 Mad. 161

27. Redemption of

trtgage. An otti, like a kanam mortgage, cannot
redeemed before the lapse of twelve years from its
te. Edathil Itti v. Kopashon Nayar

1 Mad. 122

[vuMixi Ama v. Parkam Kolusheri

1 Mad. 261

'.8.

- Distinction
An otti differs

( irtni otti and kanam mortgage.
1 m a kanam mortgage, fint, in respect of the r-ght
( pre-emption which the otti-holder possesses ;
i *idly, in being of so large a sum that practically
i jenmi's right is merely to receive a pepper corn
1 1. KtfMiNi Ama v. Parkam Kolusheri

1 Mad. 261

9. Right of jenmi

- 'iijht of a second mortgagee. During the con-
t lance of a first otti mortgage, the jenmi is in the
a le position as regards his right to make a second
o >ii. rtgage to a stranger after, as he was before,
-(■ of twelve years from the date of the first
.e. Where a jenmi made an otti mortgage,
u nil lie than twelve years after made a second otti
nt tgage to a stranger, without having given notice
U le first mortgagees, so as to admit of the exercise
oj leir option to advance the further sum required
b; the jenmi i^-Held, that the second mortgagee
(X d not redeem the lands comprised in the first
nj tgage. Ali Htjsain v. Nillakanden Nambu-
01 1 Mad. 356

^ Kavidu otti

According to Malabar law, and demised on
ire called kaividu otti is redeemable. Kundu
ill . . . I. L. E. 7 Mad. 442

~- -- -' Right to mal'e

fidvance — Second mortgage to stranger
notice to otti-holder invalid. R, havino-
I certain land to P on otti tenure ( mortgage*)
'xecuted a deed of further charge (ottikam-
in 1873 to P's widow, and in 1879 conveyed
1 (ef|uity of redemption) to her. Between
I 1879 R mortgaged the same land to A by
layam deed. In a suit by A to enforce his
: — Held that, inasmuch as 7? had not given
the otti-holder, nor given her the option of
he further advance made by A, A had no
linst the land. Ambu v. Raman

I. L. R. 9 Mad. 371

' Forfeiture of

f pre-emption. An otti-holder ekes not

> right by endeavouring to set up further

in answer to a suit for redemption and fail-

love them, or by denying that an assign-

liis jenmi's title is valid because it was made

his consent in writing and in defeasance of

^^ ,'ht of pre-emption without previous offer to

I'ltt Kanxoth Tuluvan Parambax Kunhali v.

\ a: athan Vittil Kix athe I. L. R. 3 Mad. 74

VOL. III.

MALABAR LAW— MORTGAGE— cow<(f.

33.

Sale of jenmi^s

rights at Court-sale. An otti mortgagee, if he
avails himself of his right of pre-emption must pay
whatever sum is bond fide offered to the jenmi for his
equity of redemption ; but the otti-holder is entitled
to be fully informed as to the circumstances and
amount of the offer before electing to buy. Public
notice of, and the option of bidding at, a Court-sale
of the jenmi's rights, do not constitute a valid offer
of pre-emption so as to deprive the otti-holder of his
right of pre-emption, if he does not purchase the
jenmi's rights. Cheeia Krishxan v. Vishxit
Nambudri . . . I. L. R. 5 Mad. 198
34. Right of pre-
emption— Further charge created by jenmi — Auc-
tion-sale of jenmi's rights subject to further charge
— Cause of action — Remedy of veppu-holder.
A jenmi (mortgagor), having conveyed certain land
upon a veppu tenure (mortgage, of which the right
of pre-emption and the option of making further ad-
vances are incidents), created a further charge on the
land, without giving the veppu-holder the option of
making the advance required. In execution of a de-
cree against the jenmi, a judgment-creditor brought
to sale the right of the jenmi in the land subject to
the further charge. In a suit brought by the veppu-
holder to set aside the auction-sale on the ground
that his right of pre-emption was injured thereby:
— Held, that the suit would not lie. Vasudevan v.
Keshavax . . . I. L. R. 7 Mad. 309

35.

Right of pre-

ott i — Wa iver — Limitation Act

emption nnder
(XV of 1S77), s. 2S. A jenmi, having demised
certain land in Malabar on otti to defendant No.
3 in 1869, sold the jenm title to the plaintiff and de-
fendants Nos. 1 and 2 in 188(5. In 1888 defendant
No. 3 made a further advance to, and obtained a
renewed demise from, defendants Nos. 1 and 2.
The plaintiff sued more than six years after the sale
to recover his share (defendant No. 3 being in pos-
session) on payment of one-third of the otti amount:
— //eW, that (whether or not the suit was maintain-
able as framed) the third defendant had a right of
pie-emption as ottidar, which had not been waived
bj' him and was not barred by limitation, and
which constituted a good defence to the suit. Kax-
HARANKUTTi V. Uthotti . L L. R. 13 Mad. 490
36. Otiidar's right

of pre-emption — Suit to redeem Icanam. In a suit
to redeem a kanam of 1874, it was found that the
plaintiff's predecessor in title had purchased the
jenm title to the land in question at a sale held in
execution of a decree which was binding on the
jemai's tarwad ; but it appeared that the defendant
(the kanamdar) held an otti on the land, dated
1870, and had not waived his right of pre-emption
as ottidar. A decree was passed providing for
payment by the defendant of the purchase-money
to the plaintiff, and the execution by the latter of
a conveyance and in default for redemption by the
plaintiff on his paying to defendant the amount of
the otti. Held, that the decree was risht. Ukkc
V. KuTTi . . . I. L. B. 15 Mad. 401

12 B

( 8099 )

DIGEST OF CASES.

( 8100 )

MAL (\.BAR LAW— MORTGAGE— conii.

37.

Ottidar's right

of pre-emption — Waiver — Election not to purchase.
An ottidar in Milabxr loses his right of pre-
emption if he refuses to bid at a Court-sale of the
land comprised in his otti held in execution of a
decree against the karnavan and senior anandravan
of the tarwad in which the jenm right is vested,
after having been specially invited to attend and
exercise that right, and makes no offer to take the
property for a long time after the Court-sale.
Ammotti Haji v. Ktjnhayen Kutti

I. L. R. 15 Mad. 480

38. Peruarthum mortgage —

Local law of Malabar — Redetnption. In the case
of a mortgage of the kind prevailing in a certain part
of Malabar called a "peruarthum " mortgage, when
the mortgagor redeems, the mortgagee is entitled
(before restoration of the mortgaged land) to be
paid its market value at the time of redemption,
not the amount for which the land was mortgaged.
Shekari Varma Valia Rajah v. Mangalom
Amugar . . . , I. L. R. 1 Mad. 5?

39. Suit by eo-uralan for re-

demption — Suit by one of two co-uralans for
redemption of mortgage without allegation or proof
that the other had been asked to join plaintiff in
the suit — Maintainability of suit. One of two
co-uralans may bring a suit to redeem a mortgage
without averring or proving that the other
uralan had been asked to join as a j)laintiff in
the suit. Savitri Antharjanam v. Raman Nam-
budri, I. L. R. 24 Mad. 296, distinguished. Karat-
TOLE Edamana v. Unni Kanman (1903)

I. L. R. 26 Mad. 649

40.

Suit to redeem kanom —

Failure to prove "special exigency, " less than
twelve years having expired — Maintainability of
suit — " Avasyamayi Chodikambole "— "Avasyamayi
Varumbole. By the custom of Malabar, a kanom
enures for twelve years, unless Ithe parties to it
have by express contract provided for its re-
demption at an earlier date. A kanom deed con-
tained the vernacular words " Avasyamayi Chodi-
kajnbole," ''Avasyamayi Varumbole.'" On the
question being referred to a Full Bench whether
these words meant "on demand," or whether they
meant "on demand based on some special exigency" :
— Held, that the words did not impose on a jenmi
the obligation of proving " some special exigency "
as a condition precedent to his right to. recover
" on demand " before twelve years have elapsed.
Mahomed v. AH Koya, I. L. R. 14 Mad. 76, dis-
sented from. Kelu Nedtingadi v. Krishnan
]SrAiR(1903). . . I. li.R. 26;Mad. 727

41. • Kanom for fixed

period — Kanomdar to enjoy portion of produce for
interest — Anomalous mortgage — Forfeiture not en-
tailed by disclaimer of mortgagor'' s title by kanomdar —
Suit to recover the land prior to expiration of period —
Maintainahility. By the terms of a kanom deed, a
term of 59 years was provided for its redemption,
the amount was R500, and the kanomdar was to

MALABAR LAW— MORTGAGE-condd.

enjoy a portion of the produce for interest on the
kanom and to pay the balance of the produce
annually to the mortgagor — the jenrai. Prior to
the expiration of the term, the kanomdar disclaim-
ed the title of the jenmi, who thereupon brought
the present suit, claiming the right to do so by rea-
son of the disclaimer. Hell, tliat the transaction
was an anomalous mortgage under the Transfer of
Property Act, and not a lease, and the disclaimer of
the jenmi's title by the kanomdar would not eatail
a forfeiture so as to enable the jenmi to sue for
redemption of the mortgage before the expiration of
the 59 years. The suit was therefore premature.
Raman Nair v. Vasudevan Namboodrtpad (1004)
I. L. R. 27 Mad. 26

MALABAR LAW— PARTITION.

,-: See Malabar Law — Joint Faaiily.

I. L. R. 18 Mad. 451, 452 note

1. Compulsory partition— .Wait-

katayam rule of inheritance — Tiyans' custom.
The ordinary rule of Marumakkatayam again^^t
c inipuls )ry partition is equally applicable to Tiyan;
who follow Makkatayam, no custom to the contrary
having been made out. Raman Menon v. Cha-
THtTNNi . . . I. L. R. 17 Mad. 184

2. Iluvans of Palghat— (7*«tom

relating to partibility of property — Tiyans. In a
suit for partition amongst parties belonging to the
caste of Iluvans of Palghat, it having been contend-
ed that the ordinary Hindu law relating to parti-
bility of property had no application : — Held, that
Raman Menon v. Chathunni, !. L. R. 17 Mad. 18 1,
relating to the Tiyans, could not be taken to lay
down that the rule of partibility doe? not prevail
among the Iluvans of Palghat, even assuming that
the Iluvans and the Tiyans had at one time been of
one class. Upon the evidence adduced to the effect
that the former class had for long been treating
themselves as separate from the latter, and thatj
partition was enforced as a. matter of right amongst!
the Iluvans, the Courts were entitled to find the
custom relating to partibility among the Iluvans
proved. Vei.tt v. Chamu I. L. R. 22 Mad. 297

MALABAR LAW— PRE-EMPTION.

^ Otti-hoUer's rigl'

of pre-emption, nature of — Such right a rights
election and not a right to veto — Right of pre-empti"'
cannot be enforced by counter-claim by otti-hold'
in transferee's suit for redemption — Variat'o
between pleading and proof — Plaintiff failing to proi
plaint mortgage may be given a. decree on mortt
admitted by defendan'. The right of pre-emptJ
which an otti-holder has by custom under Malal
law is only a right to elect whether he will purcba?
or not arid not a right to veto a transfer by th
janmi, without his knowledge. The otti-holder^
right cannot be pleaded as a bar to a transferee,,
right to redeem, without an offer to purchase th»
right. Such an offer by the otti-holder cannot, ii-
this country, be entertained as a counter-olail
in a suit by 'the transferee of the janmi right fj;

I 8101 )

DIGEST OF CASES.

( 8102 )

/\.LABAR LAW — PRE-EMPTION —

oiicld.

emption, but must be enforced by a separate suit.

rri V eerareddi v. Kurri Bapireddi, I. L. R. 29 Mad.

, followed. Case law on the otti-holder's right of
; -emption discussed. Where in a suit for re-
; aption, the plaintiff fails to prove the mortgage
! up by him, the Court may allow the plaintiff to
' eem on the basis of a different mortgage, under
i ch the defendant claims .to hold. Kadakam-
jxi Sankaran Mussad v. Mokkath Ussain
I n (1907) . I. L. R. 30 Mad. 388

tVLABAR LAW— WILL.

. Testamentary dispositions

D tarwad property by last surviving mem-
b of tarwad valid. The last survivinii; member
) Malabar tarwad can make a valid testamentary
' i-i! ion of the tarwad property. Alami y. KomUc
:- i;E! ARvr OF State for India v. Ko:mtt

I. L. R. 12 Mad. 126

Will by member of Malabar

u wad — Va'iditij of will. Qtc^rre : Whether the
p ciple laid down in Alami v. ^omil, I. L. B.
h Mad. 126, would apply in the case of a will
□Q e by a member of a Malabar tarwad having
- in the tarwad. Kxjttyassan- i\ Mayan

I. L. R. 14 Mad. 495

Power of disposition by will

- 'li-'cquired property — Marumakkatayam law
''ill! to succession certificate — Probate. A
rif a Marumakkatayam tarwad died leaving
lired property. The karnavan of the tar-
ied for a succession certificate, but the ap-
I was opposed by legatees under a will of
:sed which had not been admitted to pro- i
; was undisputed. Held, that the will was j
1(1 that the succession certificate should 1
i.intedtothe karnavan, but to one of the I

,u-. ACHTFTAN NaYAR ?'. ChERTOTTI NaYAH *

I. L. R. 22 Mad. 9
liiADMINISTRATION.

■ See Court of Wards 12 C. W. N. 1065

I See Executrix , I. L. E. 35 Calc. 1100

I See Trespass . I. L. R. 36 Gale. 28

1! See Limitation . I. L, R. 36 Calc. 141

HLFEASANCE.

See Limitation . I. L. R. 36 Gale. 141

M LIAHS.

(S'ee Evidence Act, s. 115.

I. L. R. 28 Mad. 130

-See Grant . L L. R. 28 Mad. 130
iUCE.

See Arrest — Civil Arrest.

I. L. R. 4 Gale. 583

1 N. W. Pt. II, 32. Ed. 1873, 91

See Champerty . I. L. R. 2 Gale. 233

L. R. 4 I. A. 33

13B. LR. 530

MALIGE— co/U<^.

-See Defamation- I. L. R. 30 Calc. 402
I. L. R. 32 Calc. 756
See LiBEi, . I. L. R. 32 Calc. 318

-See Malicious Arrest.
See Malicious Prosecution.
-See Malicious Search.
See Privileged Communication.

7 C. W. N. 248
I. L. R. 12 Mad. 374
-See Tort . 12 C W. N. 973

-See Wrongful Confinemknt.

1. L. R. 13 Bom. 376

absence of—

-See Defamation I. L. R. 36 Gale. 375

evidence of —

See Libel I. L. R. 33 Calc. 907

interpretation of —

See Defamation.

I. L. R. 31 Bom. 293

-See Municipality I. L. R. 31 Bom. 37
See Trade-m.ark I. L. R. 34 Calc. 495
1. ■ — • Proof of malice— -S«i< for dama-
ges for wronqful attachment — Reasonable and pro-
bable cause, absence of. Proof of malice is essential
to support a suit for damages for the wrongful
suing out of mesne process. By malice in its legal
sense something less is meant than malevolence or
vindictive feeling. Acts done vexatiously for the
purpose of annoyance, acts done wrongfully and
without reasonable and probable cause, acts done
wantonly and without the exercise of any caution
in investigating the necessity for them, have been
held to be malicious. At the .same time, to make
an act malicious, it must be shown that it was done
with a wrongful intention. Acts done in good
faith and without any wrongful intention, though
they may be such as a cautious person would have
abstained from, are not necessarily malicious.
From proof of the absence of such cause as would
influence a man of ordinary caution, malice may be
presumed ; but this is an inference whicli it is op-
tional with the Court, and not compulsory on it,
to draw, and it may be rebutted by proof of good
faith. When the persons against whom malice is
to be proved are not themselves present, but act
through agents at a distance, the inference <if malice
should not be drawn from the mere proof of the
absence of reasonable cause. Goutiere r. Robert
2 N. W. 353

2. Suit for damages for mali-
cious attachment — Rrasonable and probable
cause. In an action ior damages for a malicious
attaciiment, it must be shown that the defendant
has acted with malice as well as without reasonable
and probable cause. The circumstances that the
facts stated in an application for attachment were
true, and that nothing was concealed which the
Court ought to have known, is evidence that the

12 B 2

( 8103 )

DIGEST OF CASES.

{ 8104 )

MALICE— cowcZcZ.

applicant has reasonable cause upon those facts for
the application. Choudhaeee Sheoraj Singh v.
CwAKKA Doss . . . . 4 N. W. 42

MALICIOUS ARREST.

Action not maintain.-

able when arrest ordered by officer invested ivitli
discretionary power, before ivhom the full facts were
placed by the defendant. An action for malicious
arrest is not sustainable, when the defendant has
placed all the facts before the officer having the
discretionary power to order such arrest and when
such officer, with full knowledge of all the facts,
exercised his discretion and ordered the arrest.
In an action for false imprisonment the onus is on
the defendant to plead and prove affirmatively the
existence of reasonable cause, whereas, in an action
for malicious prosecution the ijlaintifi must allege
and prove affirmatively its non-existence. Hicks
V. Foullner, 51 L. J. Q. B. 268, referred to. Thakdi

HaJJI v. BtJDRFDIN SaIB (lOOCl)

L L. R. 29 Mad. 208
MALICIOUS PROSECUTION".

See Abatement of Suit — Suits.

1. L. R. 13 Bom. 677
See Appeal to Privy Coi'ncil — Cases in
WHICH Appeal lies or not — Stbstax-
tial Question of Law.

I. L. R. 25 Bom. 332
4 C. W. W. 781
See Cause of Action.

I. L, R. 29 Bom. 368
See False Charge.

1. L. R. 29 Cale. 479
See Jurisdiction — Causes of Jurisdic-
tion— Cause of Action — Malicious
Prosecution . . 6 B. L. R. 141
See Limitation Act, 1877. art. 23 (1850,
s. 1, cl. 2) . . 1 B. L. R. S. N. 17
8 W. R. 443
I. L. R. 23 Mad. 24
See Limitation Act, 1S77, Scu. II.
arts. 24 AND 25 I. L. R. 24 All. 368
See Madras Local Boards Act. s. 128.
1. L. R. 13 Mad. 442

See Probate and Administration Act.
ss. 69, 89 . 8 C. W. W. 337 ; 745
See Small Cause Court, Mofussil —
Jurisdiction — Damages.

2 Mad. 254
I. L. R. 14 Bom. 100
See Subordinate Judge. Jurisdiction
or . . 1. L. R. 11 Bom. 370

I. L. R. 12 Bom. 358
Wee'ToRT . . 10 C. W. W. 723

I. L. R. 31 All. 333
1. Right to sue — Previous crimi-
nal proseadions — Offence vndcr s. 211, Penal Code
— Compounding offence. A criminal prosecution

MALICIOUS PROSECUTION_co7i<(f.

for an offence under s. 211, Penal Code (false
charge), is not a condition precedent to the right to
sue for damages. The bringing of a civil suit im-
ports no corrupt agreement or compounding of the
offence in such a case. Shame Charan Bose v. Bholn
Nath DvM, 6 W. R. Civ. Eef. 9, followed. Vir-
anna v. Nagayyah . . I. L. R. 3 Mad. 6

2. Reasonable and

probable cause— Effect of order of discharge of a

person accused of an offence before a Magistrate

Presidency Magistrates'' Act ( IV of 1877), s. 87.
The discharge of an accused person by a Presidency
Magistrate, under s. 87 of the Presidency Magis-
trates' Act, IV of 1877, is such a termination of the
prosecution as entitles the accused to maintain an
action for malicious prosecation. Venu v. Coory,
Naeayan . . . I, L. R. 6 Bom. 37t

3. Liability for merf

bond fide criminal prosecution. A complainant who
put the criminal law in motion against a person
by whom he had^been aggrieved, such prosecutior
not being malicious or groundless, should not bf
held civilly responsible for an injury or loss thereby
sustained by the person prosecuted. Kishoeei
Lall v. Enaeth Hossein Khan. Enaeth Hossei:
Khan v. Kishoree Lall

1 N. W. Ft. 11, Ed. 1873, 7

Application fo

sanction to prosecute — Criminal Procedure Code
s. 195 — Cause of action. Held, that an unsuccessfu
application under s. 195 of the Criminal Procedur'
Code for sanction to prosecute for offences under th
Penal Code, in which the only loss or injiiri
entailed on the party against whom such applicatio
was directed was the expense he incurred in eir
ploying counsel to appear in answer to such appi
cation, such appearance being due to the fact, in
that he had been summoned, but that he had a
plied through counsel for notice of the applicatio
anticipating that it would be made, afforded i
cause of action in a suit for recovery of damages (
account of malicious prosecution. Ezid Bakhsh
Harsukh Rai . . . I. L. R. 9 All. i

5. . Necessary evidence— i?e<7,sc

ahle cause, proof of want of. In a suit for damap
on account of a charge brought by defendant in
Criminal Court, which charge was ultimately d
missed, plaintiff must prove in the Civil Court tl
there was no reasonable cause for bringing the act
sation : the proceedings in the Criminal Court .
not evidence in the Ci\'il Court. Aghorena
Roy v. Radhtka Persad Bose . 14 W. R. Zf

Reasonable

probable cause, want of. In an action for dar
for a malicious prosecution, it is not sufficienth
prove merely the dismissal of the charge. It mp
be proved that the prosecution was without reas
able and probable cause. Gunnesh Dutt
V. Mugneeram Chowdhry

11 B. L. R. P. C. 321 : 17 W. R. :

( 8105 )

DIGEST OF CASES.

( 8106 )

MALICIOUS PEOSECUTION— co«/rf.

Affirmlning decision of lower Court in Mug-

NEERAM ChOWDHRY V. GuNNESH DUTT SlNGH

5 W. R. 134

7. Requisites jor ac-

\ion jar malicious proseczdion. To sustain an action
Eor malicious prosecution, the prosecution must be
proved to have been malicious and without reason-
ible or probable cause. Svami Nayadu i'. Sub-
RAMANiA MxjDALi . . . .2 Mad. 158

Proof of malice

■ want of reasonable cause — Costs. Held, that, there
oeing no proof that the defendant acted maliciously
')r without probable cause, the suit was not main-
jainable; and under the circumstances the defend -
' nt was entitled to his costs. Dunne v. Legge

1 Agra 38

I 9. ■ Omission to allege

'.nalice and want of reasonable and probable cause.

V'here a plaint alleges the cause of action to be
'he prosecution of a false charge of forgery, and the
'tatement of the subject-matter imports that the

harge was false to the knowledge of the defendant,
!he omission to allege expressly malice and the ab-
!ence of reasonable and probable cause is no good
'round of objection to the hearing of the suit.
■ .Iamasami Ayyan v. Ramu Mupan . 3 Mad. 372

10. ■ Malice— Want

:/ reasonable and probable cause. An action for
lamages for malicious prosecution can succeed only
'.' the plaintiii shows both malice and the absence of
'?asonable and probable cause. Moonee Ummah v.
!lTmicip.\L Commissioners for the Town of

ilADR.\s 8 Mad. 151

' 11. Onus probandi — Proof of

uilice and ivant of reasonable or probable cause.
;n an action for malicious prosecution, it is for the
laintiff to prove the existence of malice and want
f reasonable or probable cause, before the defendant
in be called upon to show that he acted bond fide
id up;)n reasonable grounds, believing that the
large which he instituted was a valid one. Gaur
ARi Das Adhikari v. Hayagrib Das

6 B. L. R. 371

(lotTR HuREE Doss V. Hyagrib Doss

14 W. R. 425

NowcowREE Chunder Surmah v. Birmomoyee
abea . . . . 3 W. R. 169

12, Action for dam-

7€«. In an action for damages for malicious prose-

tion, where it is found that the charge was made
>t maliciously, but with good and reasonable cause,
le onus is on the plaintiff, though the charge against

m was dismissed, to prove malice on the part of
le defendant. Malice is not to be inferred merely
cm the acquittal of the plaintiff. RoshanSirkar

Nabin Chandra Ghatak

6 B. L. B. 377 note : 12 W. R. 402

18.

Proof of reason-

MALICIOUS PROSECUTION— cofi^cZ.

ant to .show that he had reasonable and sufficient
cause for making the charge ; and on his failure to
show any such cause, malice may be inferred.
Biswanath Rakhit v. Ramdhan Sirkar

6 B. L. R. 375 note
S.C. BiSHONATH Rukhit V. Ram Dhone Strcar
11 W, R. 42

14.

Proof of want of

reasonnhle cause — Inference of malice. In a suit
for a malicious prosecution, the plaintiff is entitled
and bound to show that the prosecution was mali-
cious and without reasonable and probable cause ;
and if want of reasonable and probable cause be
shown, malice may generally be inferred. Ven-
gama Naikar v. Raghava Chary . 2 Mad. 291

15. Want of reason-

able cause — Inference, of mahce. In a suit for
damages on the ground that the defendant made a
false charge of defamation against the plaintiff and
had him arrested and taken before the Magistrate,
who dismis.sed the charge : — Held, that the essence of
•the case lay in the question whether or not the
complainant had reasonable ground for complaining
before the Magistrate that the plaintiff had defamed
him. Malice would be inferred from the absence of
reasonable cause. Gunga Pershad r. Ramphal
Sahoo 20 W. R. 177

16. — Suit against

person whose name was not on rec rd of prosecution
case — Absence of reasonable and probable cause —
Inference of malice. A suit for damages for mali-
cious prosecution will lie against a person who was
the real prosecutor in the previous case, although
his name did not appear on the record. Ordinarily
the absence of a reasonable and probable cause in
instituting a proceeding which terminates in favour
of the plaintiff would give rise to the inference of
malice. Rai Jung Bahadur v. Rat Gudar .^^AnoY

1 C. W. W. 537

17.

Acquittal, effect

of — Good and reasonable cause. In a suit for dai
ages for malicious prosecution, where it was proved
that plaintiff, a man of property and respectability,
had been charged by defendant with theft and that
he had been convicted before the Magistrate, but ac-
quitted by the Sessions Judge : — H<ld. that the mere
fact of acquittal did not prove that the charge was
malicious ; that property having been found in
plaintiff's house whicli defendant claimed as liis stolen
I)ropcrty, plaintiff rould not recover damages, unless
it svas certain that the property in question was not
.stolen, but hi-; own, and that it was for plaintiff to
show that there whs no ground or rea.'^onahic cause
for bringing the charge. DooyoRUSSEE BvnF, v.
Gridharee Mull Dooguk . . 10 W. R. 439
18. Effect of acquit-

>k and probable cause. But if the charge were
und to be false, the onus would be on the defend-

tal of plaintiff in Criminal Court — Evidenc of
malice — Rea-ionaUe and probable cause. The mere
fact that a person has been found innocent of the
char^^e made against hi 01 is not sufficient to entitle
him to a decree iu a suit for malicious prosecution.
He must further prove that the defendants acted

( 8107 )

DIGEST OJf CASES.

( 8108 )

MALICIOUS PROSECUTION— conic?.

maliciously, that is, from some indirect motive and
that there -nas no reasonable or probable cause for
their action. Mody v. Quefn Tnstjkance Co.

I. L. E. 25 Bom. 332
4 C. W, IS. 781

19.

Ahsence of pro-

bable cause — Malice, frooj of — Fntrdhi of proof. In
n suit for damages for malicious prosecution it was
found that the charge brought by the defendant
against the plaintiff was unfounded, and that it was
brouglit -without xirobable cause. Held, that the
absence of probable cause rlid not imply malice in
law, and that, ( n the failure of the plaintiff to prove
that thef defendant did not honestly believe in the
charge brought by him, the snit should have bfcn
dismissed. Hall v. Venkatakeishna.

I. L. R. 13 Mad. 394

f 20. Suit for dam.

ages for malicious prosccvtion—Malice — Dis-
honest motive — Efject of hrivgitig a chnrqt of assavlt
for ' criminal intimidaficn ' — Damages — Heasonrihle
and pr^Aable cavse — Penal Code {Act XLV of I860},
ss. 85}, 352, -503. "Where, in a suit for damages
for malicious prosecution on a charge fif assault
vhich was dismissed, it appeared from the facts
as found by the lower Courts that there was
* crimiv'al intimidation ' on the pait cf the plaintiff
although he was not charged with that offence by the
defendant : — Held, that the plaintiff was not entitled
to any damages, as no nsalice or dishonest motive
could be imputed to the defendant in bringing the
charge of ' assault.' I\T.\Dur I.ai. Ahir G ayawal v.
Sahi Panee Dhami . I. L. R. 27 Calc, 532

21. — Suit for damages

for loss of reputation owing" to defendant giving
false information to police — Malicious prosecution
■ — Defamation — False charge — Want of reasonable
and probable cause — Malice — Privilege — Penal Code
{Act XLV of 1860), ss. 182, 211, and 499. Cer-
tain property belonging to the defendant having
been stolen, he informed the chief police constable
entrusted with the inquiry that he suspected the
stolen property to be concealed in plaintiff's house.
Accordingly the plaintiff's house was searched, and
its floor dug up, and the plaintiff was placed in
confinement for an hour or so. No property was,
however, found. Thereupon the plaintiff sued the
defendant to recover damages for loss of character
suffered by him in consequence. Both the lower
Courts decreed the plaintiff's claim, holding that
it lay on the defendant to prove reasonable and
probable cause for the suspicion communicated to
the police and the search of the plaintiff's house.
On second appeal the High Court reversed the
decrees and dismissed the suit. Held {per Jaedike,
J.), that the rule as to the burden of proof in suits
for|_ malicious prosecution should be extended to a
ease like the present. The onus therefore lay on
the plaintiff not only to allege in the plaint, but
also to prove against the defendant, malice and
absence of reasonable and probable cause for the
information given by him to the police. The plaint-
iff, however, had given no evidence of his own

MALICIOUS PROSECUTION— conW.

innocence nor that the suspicion of the defendant
was groundless, nor that the defendant had any
malice. Per Ranade, J. — The present case was
governed by the principles which governed suits for
defamation, and under the circumstances the action
of the defendant fell within the exception which pro-
tects information given to a person in authority in
the discharge of a public or private duty, where no
malice in fact is shown to exist, ^ee Mohevdro
Chundro v. Surbo Kokhya, 11 W. E. 534. There is a
distinction between the case of a false charge falling
under s. 211 cf the Penal Code and that of false
information given to the police under s. 182. A
person prosecuting another for an offence under the
latter section need not prove malice and want of
reasonable and probable cause except so far as the;!
are implied in the act of giving information knowi
to the police with the knowledge or likelihood
that such information would lead a public servant
to use his power to the injury or annoyance of
the complainant. In an inquiry under s. 21 1, on the
other hand, the absence of just and lawful ground
for making the charge is an important element.
Gvnnesh Dutt Sin^gh v. Mugneeram Chmvdhry, 11
B. L. R. 321 ; 19 W. R. 2S3, distinguished.
Raghavendea v. Kashi Nath Bhat

I. L. R. 19 Bom. 717

22. — . Prosecvtion hj

police constable in private as well as official capacity
— Malice — Siiit for damages. A police constable,
who is in effect the prosecutor and not acting
merely in his official capacity, who dees not take
reasonable care to inform himself of the truth o:
the case, and who does net honestly believe in the
charge preferred by him, and is actuated by a?
indirect motive in preferring it, is liable in a suit fo'
damages for malicious prosecution. Minakshi

SriS'DKUM PlLLAI V. AyYATHORAI

I. L. R. 18 Mad. 13t

23. ._ Procuring urmg

ful execution of a ivarrant of arre-^t — Reasonab'
and probable cause. The plaintiff sued the Munich
pal Commissioner of Bombay for damages, allegiBj
that the Commissioner had maliciously and withoii
reasonable and probable cause procured a warrant t
be issued against him on the 24th March 1892, ai
subsequently procured that warrant to be execute
at a time when its force was spent, apd under circun
stances when it ought not to have been executK
From the evidence it appeared that on the 21
December 1891 a notice was served on the plain'
under s. 232 of the City of Bombay Municipal .^
(III of 1888) requiring him to do certain draina
work upon premises belonging to him. The wi-
not having been done, a summons was issn'
against him on the 11th February 1892, requirii
him to appear before the Presidency Magistrate
answer a charge of not having complied with tl
above notice. The summons was returnable on t
25th February 1892, and on that day the plaim
appeared, but the hearing was postponed until t
24th IMarch 1892. On the 27th February 18'
the plaintiff wrote to the defendant objecting to '

( 8109 )

DIGEST OF CASES.

( 8110 )

MALICIOUS PROSECUTION— cow<rf.

oature of the work ho was required to do, and ad-
ing, "After this explanation I will leave the matter
in the hands of the Drainage Department to do
the work and will pay the expenses." In reply to
this letter, theExeciitiveEngineer on the 21st March
informed the plaintiff that he must appear in Court
an the 24th March, and also requested him to " take
the work in hand at once and complete it within the
time now allowed." On the 22nd INIarch 1892
the plaintiff replied by letter stating that he did mt
understand the work and asking the Municipality to
;et it dor e, l:e offering to pay the expense. The
letter ended as follows : " 1 do not see any reason
aow to attend in Police Court on the 24th instant
as I am ready and willing to do the work." The
plaintiff did not attend the Court on the 24th
March. On the same day (the 24th) a letter signed
.: y the Municipal Commissioner was delivered to the
iplaintiff, dated the 23rd Slarch, informing him that
.1 "fresh summons" had been issued against him
'lot not complying with the requirements of the
iiotice served on him. The Courts held that the
iaon-appearance of the plaintiff on the 24th March
iffas not caused by the receipt of this letter. On
ithe 24th idem in consequence of the non-appear-
ince of the plaintiff in obedience to the summons,
I warrant of arrest was issued against him. The
late originally inserted in the warrant for the
plaintiff's appearance before the Magistrate was
|;he 7th Apiil, but this date was subsequently al-
■:ered to the 2nd June. There was no evidence
lis to how or by whom this alteration was made.
'Che plaintiff, having heard on the 5th March
!)f the issue of the warrant, appeared next day
the 26th) before the Magistrate and surrendered,
showing to the Magistrate'the defendant's letter of
':he 23rd March and explaining why he had not
ittended on the 24th. A note was made of his
■iirrender, and he was told by the Magistrate to
Appear on the 7th April. The" plaintiff, however,
!lid not get the warrant cancelled. He stated that
\t the office of the Presidency Magistrate's Court
le was informed that the warrant was with the
ulunicipality, and that he then went away and did
iiothing more. On the 7th April the Municipal
'5ngmecr went to the plaintiff's premises, and point-
ed out the work that was to be done. He (the plaint-
fi alleged) told the plaintiff that he need not attend
he Police Court that day, as ho would get the hear-
ing of the summons postponed for a fortnight.
The plaintiff then instructed a plumber to do the
,equisito work, which was completed (as plaintiff
'.lleged) on the 26th April, and was passed and
approved by the Municipal authorities. The plaint-
jfi swore that he attended the Police Court on the
jllst April, but apparently did not bring his appear-
!ince to the notice of the Magistrate, as the Munici-
|)al officers had left the Court before he arrived.
|Ie further stated that he attended again on the 28th
^pril, but was told by a Municipal inspector that he
night go way, as the work was done. Another
rearing was apparently fixed for the 19th May, but
he case was again adjourned to the 2nd June. On
he 31st May the plaintiff was arrested in execution

MALICIOUS PROSECUTION— confrf.
of the warrant of the 24th March. The evidence was
that on that morning at 8 o'clock, a Municipal
inspector, H, who was not called as a witness at
the hearing, accompanied by a Police sepoy, went
to the plaintiff's house and pointed out the plaintiff
to the sepoy who arrested him and took him in
custody to the police station and subsequently
before the Magistrate. He was released on deposit-
ing K25 as security for appearing when required.
On the 16th June the plaintiff again appeared in the
Police Court, when the summons was withdrawn.
The plaintiff claimed RIO.OOO as damages for mali-
cious prosecution, wrongful arrest, and detention in
custody and false imprisonment. The defendant
I denied that he had applied for or obtained the war
1 rant for the plaintiff's arrest or that he or his ser-
j vants had anything to do with the arrest or was
! responsible for it, save that a sub-inspector who
' knew nothing of the warrant had pointed out the
plaintiff to a police officer at the latter's request.
He further denied that the proceedings were m.ali-
I cious and without reasonable and probable cause.
1 The lower Court (Staeling, J.) held that the de-
fendant was liable for the wrongful execution of the
warrant against the plaintiff and awarded the latttr
H500. On appeal ■.—Htld (affirming the decree of
the lower Court), that the defendant was bable.
On the 2Sth April, at any rate, the warrant m
question was a spent warrant, and could not be
properly executed, as it was, on the 31st May.
As the warrant was issued by the Magistrate of
his own accord, the defendant could not be hable
for its execution (as shown by the case of Tl est
V. Smallwood, 3 M. db W. tlS), unless he or his
subordinates- took an active part in executing it-
The mere cu-cumstance that the plaintiff was pointed
out to the police ofiScer who executed the warrant by
a Municipal inspector might not of itself amount
to taking an active part. But there were special
circumstances which should be taken into considera-
tion in conjunction with it. The length of time
which elapsed before the warrant was executed, and
the alteration of the date in the direction contained
in the warrant as to taking bail, not explained in
any way and which could not have been made by the
police, pointed to the warrant having been, if not in
the actual keeping of the Municipal authorities, at
j any rate under their control, and to the police
I having been set in motion by them. Under tliese
I circumstances, it was incumbent on the defendant
} to give rebutting evidence, and more especially to
I call the Municipal inspector to explain the circum-
j stances under which he pointed out the plaintiff
to the police officer who executed the warrant.
AcwoETH u. Shavaksha Dhti>-jihhai
I I. L. B. 19 Bom. 485

24. Eight to sue — Information given

to police — Pro6ecu(io7i by police after investigation —
Acquittal of accused — Suit for nialicious prosecution
against informant of police — Maintainability. A
gave certain information to the police regarding
B. The police, after holding an investigation, insti-
I tuted a prosecution against B, who was tried and

( 8111 )

DIGEST OF CASES.

8112 )

MALICIOUS PROSECUTION— conW.

acquitted. B now sued A for damiges for imlieious
prosecution. Held, that the suit was not main-
tainable, as A had not instituted the prosecution.

NA.RASIN3A Row V. MUTHAYA PiLLAT (1902)

I. L. R. 26 Mad. 362

25. -^ Conviction of

plaintiff hy Court of first instance, and acquittal on
appeal — Maintainability of suit for malicious prose-
cution. In a claim for compensation for malicious
prosecution, it does not follow that the suit will not
lie, where the plaintiff has been convicted by a
competent Court and has been acquitted on appeal.
The true principle is that the suit will lie if the
plaintiff was ultimately acquitted on appeal by
rea.son of the original conviction having proceeded
on evidence which was known by the complainant
to be false, or on the wilful suppression by him
of material information. Boja Reddt v. Perumal
Reddi (1902) . . I. li. R. 26 Mai. 506

26. Suit for dam-
ages for malicious prosecution — Plaintiff not prose-
cuted hy defendant, tJiougli named by him as having
some connection with an assault made upon him —
Prosecution initiated by Magistrate suo motu.
One Dudhnath Kandu lodged a complaint before a
Magistrate that he had been assaulted and severely
beaten by four persons whom he named. He sub-
sequently added the name of a fifth person as one of
his assailants. When required to make a statement
upon oath in support of his complaint, he stated
infer alia that in the course of the assault one
Mathura Prasad came from behind and called out
" beat." Thereupon the Magistrat-^ issued a warrant
against Mathura Prasad also, as well as against the
persons named in the complaint. Mathura Prasad
was acquitted, and thereafter brought a suit for
damages for malicious prosecution against the com-
plainant. Held, that the plaintiff had never been
prosecuted by the complainant, but that his prose-
cution was due to the action of the Court suo motu,
and that the plaintiff had no cause of action against
the defendant complainant. Dudhkath Kandu v.
Matitora Prasad (1902) . I. L. R. 24 All. 317

27. — ' Survival of cause of action

— Suit for damtges — Death of ■plaintiff before trial
— Legal representatives — Probate and Administration
Act \V of 1881), s. 89— Act XII of 18^1. A
brought a suit for malicious prosecution claiming
damages on the ground that he had suffered pecu-
niary loss in consequence of the costs incurred in
defending the prosecution. Subsequently A died
while the suit was pending. The legal repre-
sentatives of A then applied for, and obtained,
leave from the Court to place their names upon the
record in the place of ^. At the hearing of the suit
the question arose as to whether the cause of action
survived. Held, that the cause of action does not
survive to the legal representative of ^, inasmuch as
the pecuniary loss which A suffered by reason of
expense? incurred in defending the prosecution
is not an injury to his estate, and cannot be treated
as separate and distinct from the original cause of
action. London v. London Road Car Co., 4 T. L. R.

MALICIOUS PROSECUTION— co»«ri.

448, referred to. Krishna Behari Sen v. The
Corporation of Calcutta (1904)

I. L. R. 31 Calc. 406

28.

Right of appeal by legal

representative — Final judgment delivered inlife.

; time of defendant — Subsequent death of defendant —

j Right of defendants' legal representative to prosecute

appeal against decree. In a suit for damages for

I malicious prosecution, the District Munsif decreed

1 in plaintiff's favour and gave damages. Defend -

I ant appealed to the District Judge, who

j confirmed the decree and dismissed the appeal.

] Defendant preferred a second appeal, but died

before it was heard. The appeal was prosecuted

by defendant's legal representative, when it

j was objected that, inasmuch as the cause of

j action for damages for malicious prosecutioi

, could not survive after the death of the defendant,

his legal representative was not entitled to prosecute

the appeal. Held, that the legal representative was

i entitled to prosecute the appeal. Paramen Chetty

i V. SUNDARARAJA NaICK (1902)

I. L. R. 26 Mad. 499

Malicious prosecution or

Interposition of judicial act be-
When any illegal

i illegal arrest

1 tween charge and imprisonment.

i arrest takes place in the course of criminal p^o

[ ceedings instituted by a complainant he is not liable

I for the mistakes of the Court or any of its officers.
His responsibility, as far as the illegal arrest is
concerned, ceases as soon as he puts the law in

! motion. When the opinion and judgment of a
judicial officer comes between the charge and
imprisonment of the person charged, the complain-
ant cannot be held liable for false imprisonment.

I Austin V. Dowling, L. R. 10 C. P. 534, followed.
Bates V. Pilling, 6 B. S C. 88 ; Secretary of State

1 for India v. Jagat Mohini Dassi, I. L. R. 28 Gak\

\ 540 ; Loch v. Ashton, 12 Q. B. 871, referred to.
Painter v. Liverpool Gas Company, 3 Ad. <fc E. 433
explained and distinguished. B on behalf of the

1 Chairman of the Cossipore Municipality, the de-
fendant, applied for a summons against the plaintifi
for having acted in contravention of Bengal Act

I III of 1884. The Magistrate, who was also paia

I Secretary of the Municipality, issued the summons]
which, however, was never served. An endorse|
ment, however, was made by the serving officer thaij

, service had been effected. On the returnable dat«|
B appeared to prosecute, but the plaintiff did no'-'
appear and the Magistrate ordered the issue of i
warrant for the plaintiff's arrest. A warrant wa-
issued and renewed from time to time. Subse

' quently the plaintiff was arrested on a renewed

j warrant which was signed by two Magistrates, on^

j of whom was the Vice-Chairman of the Municipality'
and the other an honorary member. Plaintif

j accordingly sued the defendant for damages allegin;

' that he had maliciou.sly and fraudulently withheji
the service of summons, that tlie summons WiV
wDngly serv-ed, aid that the defendant left bin
in ignorance of any service at all and that thi

' defendant maliciously and falsely procured the issu*

( 8113 )

DIGEST OF CASES.

( S114 )

MALICIOUS PROSECUTION— comW.

:)f a warrant and maliciously, without reasonable
and probable cause, procured his illegal arrest.
Held, that no action lay for illegal arrest. The ser-
dce of summons is the act of the Court and the
■amiliar procedure of identification is altogether
lutside the law, and is in no way legally necessarJ^
An action for malicious prosecution cannot lie, if at
5ome time after the institution of the case, i.e., the
ipplication for summons, the defendant acted
ivithout reasonable cause and with malice ; the whole
)f the legal proceedings must come to a termination
)efore such an action can be maintained. It will
lot lie on part only of the criminal proceedinirs.

JONMOTHO NaTH DuTT V. THE CHAIRMAN OF THE
'OMMISSIONEES OF THE CoSSIPORE-ChITPORE

.luNiciPALiTY (1905) . . 9 C. W. Tf. 736

30. Suit for damages for mali-

•'-^iis prosecution — Commencement of prosecu-
■■'in.d fide — Continuance malo animo — Reason-
id probable caucC — Question of fact. The plaint-
t was a member of a joint Hindu family to which
I house in Jambusar belonged. The tax in respect
f this house fell into arrears. Summary pro-
'•eedings before a Magistrate were instituted by
le Municipality under the District Municipal Act.
Tie amount was paid after the institution of the
roceedings and the prosecution ended without a
■ecision on the merits. The plaintiS brought this
■!.iitfor damages for malicious prosecution against
've defendants, namely, (i) the Municipality of
'ambusar, (ii) and (iii) the members of its Managing
.iommittee, (iv) its Secretary, and (v) its Daroga.
,he first Court dismissed the suit. The lower Appel-
ate Court passed a decree against defendants 1, 4
jod 5 and awarded R55 as damages against them.
I a appeal to the High Court : — Held, tliat the suit
liould have been dismissed as against these defend-
its also, that the object of the Municipal Secretary
!nng " to teach a minatory lesson to other defaulters
ii the disadvantages of non-payment of the tax,"
jiat could not be regarded as an indirect motive or
jj malice for the purposes of such a suit, it being
I legitimate end of punishment to deter other evil-
pers from ofiending in the same way. Qucere :
rhether in such circumstances the Municipality
"lid in any case be held liable for the malice im-
i to its Secretary. Held, further, that the
tiry was no party to the proceedings which
nstiliited by or on behalf of the Municipality,
Hit in his power to determine whether pro-
ii-;-^ should bo instituted nor did he institute
1 in fact. Held, as to the Daroga, that the
failed to establish a sufficient ground for' legal
iity. Though a suit will lie for malicious
inuation of proceedings, it was not shown that
h'lroga took any active step after the payment
it he persevered malo animo in the prosecution
i'at he had the intention of procuring per nefas
conviction of the accused. Fitzjohn v. Mac-
r. 30 L. J. (C. P.) 257, 264. followed. Muni-
aiTY OF Jambusar v. Cirjashanker (1005)
I. Ii. R, 30 Bom. 37

31. ■ Malicious prose-

'jjj — Suit for damages — Prosecution started by

MALICIOUS PROSECUTION— coni-i.

police upon information from defen/lant —
Real prosecutor liable. A private individual, upon
whose information to the police a prosecution
was started, cannot escape liability for damages for
malicious prosecution by urging that the police
and not he prosecuted, if it appears that he himself
was the real prosecutor. Bhul Chand Putro v.
Palun Bas, 12 C. W. N. 818, followed. Fitzjohn
V. Maclcinder, 9 Com. Bench Rep. N. S. 506, 533,
referred to. Hari Charan 8axt v. Kailash
Chandra Bhuyan (1908) I. L. R. 36 Calc. 278
12 C. W. N. 817

32.

JSnit for damages

— Information to police — Informant engaging plead-
er to prosecute — Reasonable and probable cause —
Conviction of plaintiff by Court of first instance, if
conclusive. Where a person gives false informa-
tion to the Police, he cannot escape liability for the
natural and intended consequences of the act merely
because there was a subsequent investigation and
the prosecution was set in motion by the police.
When further he is found to have conducted the
prosecution by engaging a pleader and a mukhtear,
it cannot be urged that the p slice and not he was
responsible for the prosecution. A person cannot be
held liable for damages for malicious prosecution,
if it is not found that there was want of reasonable
and probable cause or that the circumstances of the
case were such as to be in the ej'es of the Judge in-
consistent with the existence of reasonable and pro -
bable cause for the prosecution. The fact that the
plaintiff was convicted by the Court of first instance
and was only acquitted on appeal ought to be
considered in determining whether there was
reasonable or probable cause, but it cannot be re-
garded as conclusive in favour of the defendant.
Bhul Chand Patro v. Pai.un Bas (foot-note) (1903)
12 C. W, N. 818

33. - — Information

given to police — Prosecution by police after investi-
gation— Acquittal of accused — Liability of informant
xohere information is found to he false — " Prosecutor
in criminal case — Malice — Criminal Procedure Code
[Act V of 1S9S), s. 495. It is not a principle of uni-
versal application that it the police or Maoist racy
act on information given by a private individual
without a formal complaint or application
f jr process the Crown and not the individual be-
comes the prosecutor. Narasinga Row v. M'lihaya
Pillai, I. L. R. 26 Mad. 362, distinauished. The
answer to the question who is the " prosecutor "
must depend upon the whole circumstances of the
case. The mere setting the law i i motio.i is not the
criterion ; the conduct of the complainant before
and after making the charge must also be taken into
consideration. Nor is it enough to say the prosecu-
tion was instituted and conducted by the police ;
that is again a question of fact. Theoretically all
prosecutions are conducted in the name and on be-
half of the Crown, but in practice this duty is often
left in the hands of the person immediately aggrieved
by the offence, who, pro hac vice, represents the
Crown. In India under s. 495 of the Criminal Pro-

8115 )

DIGEST OP CASES.

( 8116 )

MALICIOUS PROSECUTION— ronW.

cedure Code (Act V of 1898) a private person may
be allo'sved to conduct a prosecution and " any
person condi'-cting it may do so personally or by
pleader " and where it is permitted this is obviously
an element to be taken into consideration in judg-
ing who is the prosecutor and what are his means of
information and motives. The foundation of the
action for malicious prosecution is malice, which
may be shown at any time in the course of the
inquiry. Fitzjohn v. Machinder, 9 C. B. N. 8. 505,
referred to. Where the defendants, though their
names did not appear on the face of the proceedings,
except as witnesses, were directly responsible for a
charge of rioting being made against the plaintiff,
had produced false witneses to support the charge
at the investigation by the police ; had taken the
principal part in the conduct of the case before the
police and in the Magistrate's Court ; had instructed
the counsel, who appeared for the prosecution at the
trial that the plaintiff " had joined the riot," and
had done all they could to procure the conviction
of the plaintiff, who was acquired, being found not
to have been present at the rioting : — Held, that
they were rightly found liable for damages in an
action for malicious prosecution. Gaya Paepad
Tuv.^Ei V. Saedar Bhagat Singh (1908)

I. L. E. 30 All. 525

L. R. 35 I. A. 189

s.c. 12 C. W. ]Sr. 1017

34. Onus proband! — Proof of

plaintiff's innoc<=.nce — Insufficiency of proof that the
charge against plaintiff has been dismissed. In a suit
for damages for malicious prosecution, plaintiff, with
the object of proving the falsity of the charge which
defendant had preferred against him, filed the order
of the j\Iagistrate dismissing the charge under s.
209 of the Code of Criminal Procedure, and adduced
oral evidence. The latter was not accepted as re-
liable, the falsity of the charge being taken as es-
tablished solely by the said order of dismissal.
Held,that this was insufficient, the onvs being on the
plaintiff to prove that he was innocent and that his
innocence had been pronounced by the tribunal
before which the accusation had been made. Abrath
V. North Eastern BailwayCo., L. R. 11 Q. B. D. 440;
L. R. 11 App. Cas. 24, referred to, Nalliappa

GOUNDAN V. KaILAPPA GOUNDAIf (1900)

I. Is. R. 24 Mad. 59

35. — Innocence —

Reasonable and probable cause — Malice— Judge of
law and facts. In a suit for malicious prosecution
in order to enable the plaintiff to succeed he must
prove, first, that he was innocent of the charge
brought against him ; secondly, that the defendant
acted without reasonable and probable cause in
instituting the prosecution ; and, thirdly, he must
satisfy the Court that the defendant was actuated
by feelings of malice in the course which he took.
The question of reasonable and probable cause is,
if the case is tried by a Judge with a jury, a ques-
tion for the Judge, and not for the jury'; but, in
India, where there is no jury, the Judge becomes
himself the Judge of the law and the facts. Pestonji

MALICIOUSJPROSECUTION— confi.

Mody V. The Queen Insurance Company, I. L. R.
25 Bom. 332, referred to. Haeish Chander
Neogy v. Nishi Ka>;t Baneejee (1901)

I. L. R. as Cale. 591 : s.c. 6 C. W. N. 159

36. Suit for damages

for — Reasonable and probable cause. In a suit for
damages for malicious prosecution, the omis of prov-
ing that the plaintiff is innocent of the charge
brought against him, that the defendant acted
without reasonable and probable cause, and that the
defendant acted maliciously, is on the plaintiff.
Syama CH.4.RAN Kaemokar V. Jhatoo Haldar
(1901) e C. W. N. 298

37. Evidence of reasonable and

probable ca,^xse— Conviction by Magistrate and
acquittal in Sessions Court. In a suit to recover
damages for a maiicious prosecution, it was proved
that the case for the prosecution having been that
the plaintiffs had dishonestly broken open the
defendant's grain-pit, and the defence that it wa^
done under a claim of right, the Joint Magistratei
convicted the accused, but that his sentence was
reversed by the Court of Session. Held, that, ir.
the absence of any special circumstances to rebu1
it, the judgment of one competent tribunal against
the plaintiffs afforded very strong evidence o'
reasonable and probable cause. Paeimi Baptjrazi
V. Bellamkonda Chinna Venkayya

8 Mad. 23^

38. Evidence — Ccm

victio7i of plaintiff by a Criminal Court. The
fact that the plaintiff in a suit for damages fo;
malicious prosecution has been convicted by a com
potent Court, although he may subsequently hav
been acquitted on appeal, is evidence, if unrebutted
of the strongest possible character against th,
plaintiff's necessary plea of want of reasonable ani]
probable cause. Parimi Bapurazu v. Beltam
konda Ch.inna Venkayya, 3 Mad. 23S, followed
Jadubar Singh v. Shed Saeax Singh

I. L. R. 21 Aa 21

39. Conviction '

Criminal Court. In a suit for damages for defaii
tion of character by maliciously bringing a i&\
charge against the plaintiff, it is important, in det
mining the same, to see how the charge has b( -
treated by the criminal authorities ; and when
was found that the plaintiff had actually be
convicted by one Court, that might well be regardr
as a weighty circumstance to show that the defeii'
ant acted from some adequate cause and n'
maliciously. Gtjnga Ram v. Hoolasee

2 N. W. 8

40.

Malice — Negt

gence, inference from.' The defendant had charge
the plaintiff with cheating by personation in false
pretending that his (plaintiff's) wife had been del
vered of a son, and procuring a child and passii"
him off as the son so born. The case was dismisst
by the Magistrate, and the plaintiff brought tl
present suit for malicious prosecution. The defen
ant alleged reasonable and probable cause a;

( 8117 )

DIGEST OF CASES.

8118 )

MALICIOUS PEOSECUTION— fcKW.

the absence of malice. The Civil Judge awarded
B50,000 damages to the plaintifiF. Upon! appeal,
it was contended that the charge -was not malicious,
though the facts upon' which it was based were
allowed to be false. Held, that this depended upon :
the question of the absence of reasonable and
probable cause, and in case of the absence, upon |
the cogency of the inference derivable ficni it.
The test which has received the most apprc baton
is partly absliact and partly concrete. Was it
reasonable and probable cause for any discreet
man ? Was it so to the maker of the charge ? i
Upon the facts of this case :— //eW, that, if defend- i
ant's conduct was mere negligence, it'was dissoluta

\ negligentia : that the facts alleged in support of
thechargeweresuchas, if believed at all, could only

, je believed and acted upon through such negligence ^
that the ; inference of malice was irrcirislible.
GoDAY Naeeajn Gajpathi Rati r. Axkitam Ven-
KATA Naesixg Eatj . . . 6 Mad. 85

41.

Guilty lncv((dge

-Proof of malice.. It is not

i — Criminal 'intention-
i to be presumed, as a matter of course, from the ex-
' istence of an overcharge in an account, although the
I error may be an important error, that the trades-
' man delivering the account intentionally inserted it
■ with a view to defraud. There should generally be
something more than the entrj- of the overcharge to
justify the presumption that it was made with a
guilty knowledge and criminal intention; W
\ manufactured and delivered to Z) a punkha with
iron supports. In the bill delivered to D the iron-
j work was entered and charged as weighing four
I maunds. D paid a certain sum on account, promis-
I ing to pay the balance if he was satisfied that the
charge for the iron-work was not exorbitant.
I W sued D in the Small Cause Court for' the balance
I due on account of the punkha. It then appeared
I that the ircju-woik only weighed a little over
two maunds. The Small Cause Court Judge
, dismissed the claim in respect of the punkha
and iron-work, on the ground that the payment
already made was sufficient. On 3rd February
\ D applied to the Judge for sanction to prose-
cute W for making a false claim. On the next
day, without making any inquiry or asking II' for
: an explanation, and without awaiting the result of
I the investigation by the Smhil Caufe Coi.rt Judge
' which would have satisfied him that there was no
fficient ground for imputing a erimjinal intention
li . he instituted a charge of cheating against 11'
ilie Magistrate's Court. When the Judge of the
i^niall Cause Court closed his investigation and re-
1 fused sanction. D did not withdiaw from the prose-
jcution of the charge in the Magistrate's Court, which
j was subsequently dismissed. It was proved at the
I investigation in the Small Cause Couit that four
' maunds of iron had been delivered to the workmen
I't" ir and entered; by his storekeeper as expended.
In a suit by U' against D to recover damages for a
"nlicious prosecution : — Held, that the institution
the charge in the Magistrate's Court, after the
Undant had brought the matter bcfi re the Judge

MALICIOUS PROSECUTION- conW.

of the'Small Cause Court and krew it was under the
Judge's consideiation, and his persistence in the
charge in the Magistrate's Court when, after investi-
gation, sanction had been refused by the Small
Cause Court Ji:dge, was sufficient proof of ma-
lice, and that on the facts there was no reasonable
cause for crimii al prccecdines. ^^ E-atuebaI-L r.
Dillon- . . . . " 6 N. W. 2CG

42 Eea.onahle and fro-

lahle cau-e—Oti' s jrcland' — Qvesticn cf malice and
reascnahleand ptchable cause — Ccncvrrent findings
of Icu-er Ccvrtfi. In an action for malicious prose-
cution, in which the plaintiff claimed R3,C0,000 as
damages, the Court of first instance dismissed the
suit, holding that the jjlaintiff had not proved either
the existence of malice or the absence of reasonable
and probable cf.use. The plaintiff appealed, and
the Appeal Court dismissed the appeal on the same
grounds : and, on appeal to the Privy Council, their
Lordships also luld that, both as regards malice and
the absence of reasonable and i:)robable cause, the
plaintiff had failed to discharge the burden of proof
which lay upon him. Pestonji MrxcHERJi Mody
r. Qtjeen Insxjeakce Company (19C0)

I. L. E. 25 Bom. 332

43. ~ Finding en

reasonable and jrcboble cavse. Plaintiff had been
charged by defendant with the destructirn of
defendant's crop, and convicted, the convictirn
being upheld en appeal. A revision petition
was then filed n the High Court, when the case
was remanded to the lower Appellate Court,
which again uj held the conviction. The High
Court, however, quashed the conviction, and
plaintiff now sued for damages for malicious prose-
cution. The District Munsif dismissed the suit, hold-
ing that defendant had reasonable and probable
cause forpreferrng the complaint. The Subordinate
Judge reversed this decree, and gave judgment for
plaintiff.^ He said that the Munsif had considered
that the existence of reasonable and probable cause
should be presvmed from the facts that plaintiff
had been convicted and that his conviction had
been upheld on jippeal. The judgment of the High
Couit should, he.wever, have been taken into consi-
deration, and was in favour of plaintiff. He added :
" In the state of things, the complaint and prosecu-
tion by defendant must be presumed to have been
made maliciously ; J accordingly find the issue for
the plaintiff and against the' defendant, and hold
that the latter prosecuted the former falsely and
maliciously and without reasonable and probable
cause."' Held, flat, on this finding, the plaintiff had
failedtoshowafl imatively an absence of leasorab'e
and probable cause. The Subordinate Judge had
presumed malice from the fact that the conviction
of the plaintiff lad been ultimately quashed by the
High Court and. having' presumed malice, he found
the issue for the plaintiff. The absence of probable
cause does not implv malice in law. J/crf.v v. Qzieen
Insvrr.nce Co., J. L. B. 25 Bom. 332. and Hall v.
Vinlatakrishno. I. L. B. 13 Mad. 394. followed.
Ramayya v. SivAYYA (1900) L L. E. 24 Mad. 549

( 8119 )

DIGEST OF CASES.

( 8120 )

MALICIOUS PROSECUTION— coji/(Z.

44.

Sicit for damages

for malicious prosecution — ''Malice " — " Reasonable
and probable cause. " " Reasonable and probable
cause," in connection with actions for damages
for malicious prosecution, may be defined to be an
honest belief in the guilt of the accused,
based upon a full conviction, founded upon
reasonable grounds, of the existence of a state of
circumstances which, assuming them to be true,
would reasonably lead any ordinarily prudent
and cautious man placed in the position of the
accuser to the conclusion that the person
charged was probably guilty of the crime im-
puted. Hicks V. Faulkner, L. R. 8 Q. B. D. 167,
referred to. " Malice," in a similar connec-
tion, is not to be considered in the sense of spite or
hatred against an individual, but of mains animus,
and as denoting that the party is actuated by im-
proper and indirect motives Mitchell v. Jenkins,
■5 B. cfc Ad. 595, referred to. The mere absence
of reasonable and probable cause does not of
itself justify the conclusion, as a matter of law, that
an act is malicious. It is not identical with malice,
but malice may, having regard to the circumstances
of the case, be inferred from it. Gajpathi Rau v.
Narsing Riu Garu, 6 Mad. H. C. Rep. $5,
referred to. Bhim Sen v. Sita RA^r (1902)

I, L. R. 24 All. 363

45.

-Reasonihle and

probable cause — Partner and firm — Liahility of
firm for torts of one partner — Indictment con-
taining several charges, whereof for some there is,
ani for others there is not, probxble cause — Circum-
stances of suspicion — Prosecution, commencement of.
A malicious prosecution by the managing partner
of a firm does not render the other members
of the firm liable in damages, unless it is shown
that the firm was in some way or other concerned
in the prosecution and had instigated it. Where
a person prefers an indictment containing several
charges, whereof for some there is, and for others
there is not, probable cause, he becomes liable for
preferring that indictment without reasonable and
probable cause. Reed v. Taylor, 4 Taun. 616, follow-
ed. Mere circumstances of suspicion cannot be re-
lied on as evidence of reasonable and probable cause
as a defence to an action for malicious prosecution.
Busst V. Gibbons, 39 L. J. Ex. 75, followed. A
prosecution commences when a complaint is made.
It is not necessary, in order to miintain an action
for malicious prosecution, that the charge was acted
upon by the Migistrate : it is enough if the
charge was made to the Magistrate with a view of
inducing him to entertain it. Ahmedbhai v.
FRAM.JI Edulji (1904) . I. Ii. R. 28 Bom. 226
46, ■ ■ Malicious pro-
secution— Want of reasonable and probable cause —
Malice — Evidence of malice. In cases of malicious
prosecution, want of reasonable and probable cause
for the prosecution is some evidence of malice.
Malicious prosecution means that the proceedings,
which are complained of, were initiated in a mali-
'cious spirit, i.e., from an indirect and improper

MALICIOUS PROSECUTION— cojicZrf.

motive and not in furtherance of justice. Abrath v.

The North Eastern Railway Company, 11 Q. B. D.

455, referred to. Sri Nath Shah a v. Ralli (1905)

10 C. W. N. 253

47. Assessment of damages—

Fees for counsel. In a suit for malicious prosecu-
tion, the expense of counsel is not a proper element
in the calculation of damages awardable to a success-
ful plaintiff. Goday Nabain Gajpathi Rau v.
AxKiTAM Venkata NARsiNa Rau . 6 Mad. 85

48. Fees paid to vakil

for defence before Criminal Court. In a suit for
damages on account of malicious prosecution, the
fee paid by the plaintiff to his vakil for the purpose
of his defence before the Criminal Court is an i
element to be considered in assessing the damages
suffered. Dictum of Hollo way, J., in Gajpathi
Rau V. Narsing Rau, 6 Mad. S5, explained. Stjbba
Rau v. Virappa . . I. L. R. 5 Mad. 162

49. ■ Costs in Criminal

Court. In a suit for damages for malicious prosecu-
tion, the plaintiff is entitled to recover the costs
necessarily incurred by him in defending himself on
the criminal charge. Bunnomali Nundi v.
Hurry Dass Byragi

L L. R. 8 Calc. 710 : 11 C. L. R. 265

50. Measure of damages— .S'wfi-

stantial damages. Wliere a charge has been made
against a person of having given false evidence in a
judicial proceeding and the circumstances of the
case show no reasonable suspicion, the Court will,
on suit brought, award substantial damages.
Anundloll Doss v. .Iointee Chuxder Sen
1 Ind. Jur. N. S. 93

MALICIOUS SEARCH.

■ Police officers searching

a house under orders, for arms held under a
cancelled license — Acting in the discharge of duty-
Dishonesty — Action. On the 1st October 1900,
the plaintiff applied to the District Magistrate to
renew his existing license for arms, and for thei
issue of an additional license for fresh arms. The
District ^Maixi-trate, however, cancelled the plaint
iS's ixistiii_' license, and declined to grant him :i
licen^i- tor frc-h arms. This order was sent on t<
the defendant, the officer in charge of the police
station at the village where plaintiff lived, with i
direction that it should be communicated to thi
plaintiff, and that such arms as there might be ii
his possession should be attached. The defendant
accompanied by a Ranch, went to the plaintiff'
house, communicated to him the contents of thi
order passed by tlie District Magistrate, and calle(
upon him to give up the gun which he held undo
the cancelled license. The plaintiff produced
gun : but the defendant, suspecting that that wa
not the gun in respect of whicli the cancelled licens
had been granted, searched the plaintiff's house, bn
no gun was found. The plaintiff thereupon sud
the defendant for maliciously searching his housf
Held, that the defendant was not liable, (i) as h

( M21 )

DIGEST OF CASES.

( 8122 )

MALICIOUS SEARCH— co7ic?cZ.

was acting in the discharge of a duty recognized by
law when he searched the house, and (ii) as it was
not proved by the plaintiff that the defendant
acted dishonestly and was prompted by a desire to
injure the plaintilf. Narasimha Shankar Des-
PANDE V. Imam valad Mahamad (1903)

I. Ii. R. 27 Bom. 590
MALIK.

See Hindu Law — Gift.

I. L. R. 30 All. 84
MALIKANA.

See Attachment — Subjects of Attach-
ment— Property and Interest in
Property of various kinds.

I. L. R. 3 Calc. 414

See Deed — Construction.

I. L. R. 9 All. 591

See Limitation . 10 C. W. N. 151

See " Maukana and Dusturat " Grant.

See MuNSiF, Jurisdiction of.

I. L. R. 19 Calc. 8

See Oudh Estates Act, 1869.

I. L. R. 4 Calc' 839
L. R. 6 I. A. 1

See Sale for Arrears of Revenue.

8 C. W. N. 469

See Small Cause Court. Mofussil—
Jurisdiction— Title. Question of.
L L. R. 9 All. 591

suit for—

See BENa.\L Regulation VIII of 1793,
S.46. . . 4B, L. R. A. C. 29

See LiMiT.\TioN Act, 1877, Art. \:V2.

4 B. L. R. A. C. 29
2 W. R. 162

6 "W. R. 151

7 W. R. 336
9 W. R, 102

12 W. R. 498

13 W. R. 465
19 W. R. 94
21 "W. R. 88

22 W. R. 520 ; 551

I. L. R. 5 Calc. 921

<See Speci.'^l or Second Appeal — Small

: Cause Court Suits— Damages.

j 3 B. L. R. Ap. 96

1. Malihina rights

\mrt from the parent estate, transjcrahility of —
\lluviov, and diluvion — Ben. Reg. XI of 1S25. s. 4 —
kt XXXI of 1858. There may be an out-and-out
iile of the malikana rights in a newly-accreted estate
part from the parent estate. Khublnl v. Ghina
\lazari, 2 B. L. R. 339, followed. Promotha
I'ath Majumdar v. Robert Watson & Co.. Ln.
|190.3) . . . 7 C. W. M". 846

i 2. Limitatioii Act

JK of 1S77), Sch. II, Arts. 115, 120— Suit for

MALIKANA— conc/rf.

recover]! of arrears of malikana without seeking to
enforce the charge wpon the land. A suit for recovery
of arrears of malikana, where the plaintiff does not
seek to enforce the charge upon the land for which
malikana is payable, is governed by Art. 115,
Sch. II, of the Limitation Act. Ramdin v. Kalka
Pershad. I. L. R. 7 All. 502 . L. R. 12 I. A. 12, and
Miller V. Runga Nath Moulick, I. L. R. 12 Calc. 389,
distinguished. Kallar Roy r. Ganga Persad
SiNGu()90^) . . L L. R. 33 Calc. 998

MALIKANA
GRANT.

AND DUSTURAT"

Malikana and dusturat

grants made before the Permanent Settlement*
— Nature and incidence — Liahility of Oovernmeat —
Lakhiraj jaigirs — Resumption. In the Behar dis-
tricts, the payment of malikana dates from a
period long anterior to that of the Permanent
Settlement. The Permanent Scttlen.ent put an
end to the system of paying malikana to
proprietors except in those cases where thev
declined the terms offered to them at the settle-
ment and preferred to remain out of possession.
But previous to the Permanent Settlement, large
tracts of land in Behar had been settled by Govern-
ment with lakhirajdars, the proprietors being com-
pensated by permanent hereditary pensionary
allowances, styled malikana or dusturat and
malikana payable out of the jaigirs. When sub-
sequently these jaigirs were resumed the Govern-
ment as occupying the position of the jaigirdars
became liable for the payment of the malikana.
When the lands were re-settled with the jaigirdars
themselves the malikana previously due from them
were added to the Government revenue with
which they were assessed, and the maliks were paid
by tlie Collector out of the treasury, ^^'hen, on
the other hand, the resumed jaigirs were settled
with persons other than the jaisiirdars, the land
settled still remained liable for the payment of the
malikana, such malikana being payable either out
of the malHana as assessed under s. 3 of Regulation
II of 1819 and s. 5 of Regulation VII of 1822
or added as an additional sum paj'able by the >
settlement-holder over and above the revenue and
malikana so assessed. Government subjected itself
to loss when in resettling the lands it omitted
to make provi.'sions for the recovery of the malikana
from the settlement-holders in the above manner.
If, however, the lands bj' any process of transfer or
merger came into the possession of the proprietor
the malikana allowance or a rateable share of it
came to an end, and the Government on resettle-
ment after resumption became entitled to be
relieved of their liability pro tanto. Rameswar
Singh v. The Secretary of State for India
(1907) . . new. N. 448

MAMLATDAR.

See L.\nd Acquisition Act, 1870. s. 19.
I. L. R. 17Bom.299

( 8123 )

DIGEST OF CASES.

( 8124 )

MAMIjATDAR—condd.

See Mamlatdab, Jubisdictiox of.

See Mamlatdars' Courts Act.

See Witness — Civil Cases — Persons

COMPETENT OR NOT TO BE WITNESSES.

I. L. R. 17 Bom. 299
Court of—

-See Sanction to Prosecution — Where

Sanction is necessary or otherwise.

I. Ii. B. 5 Bom. 137

disqualification of, to try case—

See Judge — Qualifications and Dis-
qualifications.

I. Ii. R. 19 Bom. 608

. order of—

See Bombay Land Revenue Act, V of

1879, s. 87 . I. L. R. 8 Bom. 188

See High Court, Jurisdiction of —

Bombay — Civil . 9 Bom. 249

See Limitation Act,1877, Art. 47.

10 Bom. 479
I. Ii. R. 15 Bom. 299
I. L. R. 18 Bom. 348
I. L. R. 20 Bom. 270
I. L. R. 23 Bom. 525
See Limitation Act, Art. 144 — Adverse
Possession . I. L. R. 18 Bom. 348
See Possession — Evidence of Posses-
sion . .1. Ii. R. 5 Bom. 387

See Res Judicata — Judgments on
Preliminary Points.

I. L. R. 6 Bom. 477

I. L. R. 21 Bom. 91

I. L. R. 24 Bom. 251

Math — Manager-

MAMLATDAR, JURISDICTION OP—

conld.

1. -

Possessory suit in Mamlatdar's Court in a personal
and private capacity — Subsequent civil suit in a
representative capacity — Civil Procedure Code {Act
XIV of 1882), s. 13, explanation II. An order
in a Mamlatdar's suit does not give rise to
the bar to which explanation II of s. 13 of the
Civil Procedure Code (Act XIV of 1882) relates.
Babajirao v. Laxmandas (1904)

I. L. R. 28 Bom. 215

MAMLATDARS' COURT.

(See Jurisdiction OP Civil Courts.

"I. Ii. R. 31 Bom. 545

MAMLATDAR, JURISDICTIO]?^ OF.

See Limitation Act, 1877, s.l4.

L L. R. 18 Bom. 734.
See Mamlatdar.

See Mamlatdars' Courts Act.

; t See Superintendence op High Court —

Civil Procedure Code, 1882, s. 622.

I. Ii. R. 9 Bom. 97

I. Ii. R. 18 Bom. 449

I. Ii. R. 20 Bom. 630

I ' I. Ii. R. 21 Bom. 731 • 775

— Bom. Act V of IQQ^— Posses-
sion— Right of way. Held, that an order passed
by a Mamlatdar under Act V of 1864 (Bom-
bay), directing the accused to keep open a right of
way to a privy, being in reality an injunction to
refrain from disturbing the possession of the par-
ties, was therefore within the jurisdiction of the
Mamlatdar. Reg. v. Krishnashet bin Narayan-
SHET 5 Bom. Cr. 46

2. Jurisdiction of Mamlatdar

over officers of Government sued in their
official capacity— Bom&a(/ Civil Courts Act (Bom.
Act XIV of 1869). s. 32— Bombay Revenue Juris-
diction Act {X of 1876), s. 15. A Mamlatdar
has jurisdiction, under Bombay Act III of 1876, to
hear and determine a suit brought against officers
of Government for acts purporting to have been
done by them in their official capacity. A Mamlat-
dar has no power to inquire into matters not
covered by the issues laid down by the Act itself.
Balvantrao v. Sprott I. L. R!^ 23 Bom. 781

3, Effect of order of Mamlatdar

as to possession— ^ci XVI of 1838, s. 1, cl. 2—
Mamlatdar's Court a Revenue Court within contem-
plation of Bom. Reg . XVII of 1827— Maxim, ''Oy-
timusle.guminterpres consuetude,''^ application of
■ — Remedy when suit to set aside order as to possession
is barred — Title, suit based on. On the 13th Decem-
ber 1863, prior to the passing of the Mamlatdars'
Act (III of 1876), one B sued defendants 1 and 2
in a Mamlatdar's Court for the purpose of restrain-
ing them from disturbing him in the possession and
enjoyment of the lands in dispute. On the 17th
January 1864, the Mamlatdar made an order to
that etiect against the said defendants, who omitted
to sue to set aside that order. In 1866, B being
then dead, his widow (defendant 3) executed in
favour of the plaintifi a miraspatra in respect of
the lands in dispute, which was also ratified by
her adopted son (defendant 4). In 1871 the
plaintiff sued to recover possession of the lands.
Defendants 1 and 2 contended, inter alia, that the
lands were their private property and had neveri
been in the possession of B or his widow. The 8uit|
went up to the High Court, and was remanded for
the deteimination of the issues, viz., (i) whether B
had at the time of his death such a title to the land
as would have entitled him to make a mirasi lease
thereof, and (ii) whether there was anyvalidadop
tion of defendant 4 by defendant 3. On remand th(
Court of first instance found on the issue in th(
affirmative, being of opinion that defendant i
was in p issession at th ■ time the miraspatra wa
executed to the plaintiff. The defendants appealed
and the Subordinate Judge confirmed the lowe
Court's decree. He treated the Mamlatdar:
order as one made under the Mamlatdars' Act, and
as such, binding conclusively on the defendants, ai
it had not been set aside within three years fron
its date. On appeal to the High Court : — Held
that the Subordinate Judge with appellate power
was wrong in treating the Mamlatdar's order a;
passed under the Mamlatdars' Act. The orde

( 8125 )

DIGEST OF CASES.

( 8126

MAMIiATDAR, JURISDICTION OF—

contd.

was one of a Revenue Court under s. 1, cl. 2, of
Act XVI of 1838. It was contended that the Mam-
latdar could not make such an order under Act XVI
jf 1838. Held, that although the Collector's Court
uas the only Revenue Court contemplated by Regu-
lation XVII of 1827, smce the passing of Act
XVI of 1838, the Mamlatdar's Court was always
regarded as a Revenue Court empowered to deal
with a claim to possession, and that in construing
:hat Act the maxim " optimits Icgum interpres
ronsuetudo " might be properly applied. The
order in question was against the appellant, and
inderT of Acts. XIV of 1859 a suit by the appellant
to recover the property would be bari-ed on the 1 7th
ITanuary 1867, and as that suit was not brought,
he defendants could not assert a title other than
. hat their actual possession might afford them.
Che Subordinate Judge having found that defend-
int 3 was in possession in 1886 when she granted
;he miraspatra, the appellant could not have
acquired any title by possession before the plaint-
ff's suit in 1871. Bapu Khandu r. Baji Jiva.ji
I. L. R. 14 Bom. 372

Parties, substitution of-

lode of Civil Procedure [Act XIV of 1882), Ch.
XXI, ss. 361-372, applicability to a suit in a
Mamlatdar's Court — Procedure. The Bombay
.ilainlatdars' A.-t (III of 1876) makes no pro-
.•ision f or the substitution of the names of heirs
n the case of the death of one of the paities,
md Ch. XXI of the Code of Civil Procedure
Act XIV of 1882) cannot be held to apply to
iroceedings in a Mamlatdar's Court. ^Accord-
jagly, where a possessory suit was filed by two
)er8ons in a Mamlatdar's Court, and one of
bem died pending the suit, and it appeared that
,he right to sue did not survive to the surviving
'ilaintiii alone -.—Held, thnt the Mamlatdar, having
'herefore no jurisdiction to substitute parties, had
10 alternative but to dismiss the suit. Ganpat-
UM Jebhai v. Ranchhod Haribhai

I. L. R. 17 Bom. 645

1^5. . — ^_ Superintendence of High

'^ou.Tt— Mamlatdar s' Courts Act [Bom. Act III
i 187r,),ss. 15, cl. (a), sub-cls. (1) and (2), and IS
-Execution of decree for possession against a third
tarty. A third party cannot be ousted from pos-
ession of property in the execution of a decree for
'ossession made by a Mamlatdar against a defendant
I nder Bombay Act III of 1876, and it is beyond
I he power of Government by Resolution to give a
•lamiatdxr authority to oust a third party. A
'btained an order in a Mamlatdar's Court agamst G
ior possession of a house, and in execution N, who
I'&s found in possession of the house, and who was
jeported by the village officers as holding possession
jar 0, was evicted by order of the Mamlatdar. N
hen applied to the High Court. Held, that the
'lamlatdar's order was, strictly speaking, beyond
IS authority, but that as JV'-s petition to the High
'Ourt contained no distinct denial that he was
,'ccupying merely on behalf of the defendant, the

MAMLATDAR, JURISDICTION OF—

conid.

High Court would not interfere in its extraordinary
jurisdiction. Nathskha v. Abdul Alli

I. L. R. 18 Bom. 449

6- Possessory suit— Mamlat-

dars' Courts Act (Bom. Act III of 187H), s. Ij
—Possession of mortgagee. The possession by a
mortgagee is not possession on behalf of his mort-
gagor withm the meaning of s.15 of the Mamlatdars'
Act (Bombay Act III of 1876) so as to give the
Mamlatdar jurisdiction under that .section. Khan-
derao v. Naesingrao . I. L. R. 19 Bom. 289

7- Possessory suit by landlord

—Mamlatdars'' Courts Act {Bom. Act III of 18:<i),
s. 15 — Landlord and tenant — Disposession of tenant
— ISiaiure of possession — Constructive possession.
A landlord who has let out his land to tenants
cannot, on the tenants being dispossessed, bring
a possessory suit in the Mamlatdars Court under the
provisions of the Mamlatdars' Act (Bombay Act III
of 1876). The tenants cannot be said to be in
possession "on behalf" of the landlord under
s. 15, cl. (a), of the Act, and the Mamlatdar has
therefore no jurisdiction to try the suit. Go.va v
Narsingeao . . I. Ii. R. 20 Bom. 260

-See Bhimaji Jayaji Patel v. Gopala IMahadu
Sale . . I. L. R. 20 Bom. 264 note

8. — Dispossession of a third

person not a party in exscution of decree
for possession— Possessory suit by third person
against decree-holder— Cause of action— Mamlat-
dars' Courts Act {Bom. Act III of lS70)—Mamlat-
dar— Civil Procedure Code, 1882, s. 332. Where
in execution of a decree a person not a party to the
suit is dispossessed, his dispossession does not give
him a cause of action within the jurisdiction of the
Mamlatdar. S. 332 of the Civil Procedure Code
(Act XIV of 1882) applies. Ramchaxdra Subrao
V. Ravji . . . I. L. R. 20 Bom. 351

9. . Delivery of possession in

execution of a decree of a Civil Court—
Subsequent lease to the judgment -debtor— Refusal
of the Mamlatdar to restore possession after the
expiration of the lease — Suit for possession — Cause
of action. V obtained possession of land from B
in execution of a decree of a Civil Court. After
obtaining possession V leased the land to B. On
B's refusal 1 1 vacate t!ie land on the expiration of
the lease, V brouglit a possessory suit in the
Mamlatdar's Court. The Mamlatdar rejected the
plaint, holding that he ought not to order restora-
tion of possession of the land again and again.
Held, that a fresh cause of action accrued to V on the
refusal of B to give possession on the expiry of the
lease, and that the Mamlatdar was wroni: in declin-
ing to accept the plaint. Vikavak \'i-iiwanath
Bhople v. Balu . I. Ii. R. 20 Bom. 491

10. Irregular decree of Mam-
latdar made by consent of parties—
Mamlatdars' Courts Art (Bom. Act III of 1876).
The applicant brought two possessory suits against
the opponent in the Mamlatdar's Court for the

8127 )

DIGEST OF CASES.

( 8128 )

MAMLATDAR, JURISDICTION OF—

contd.
recovery of certain pieces of land. By consent
decrees were passed in these suits that, unless the
opponent paid a certain sum of money to the appli-
cant within two months the latter should get posses-
sion. After the expiration of two months, the
applicant, alleging that the money had r.ot been
paid as agreed, applied for execution of the decrees.
The Mamlatdar found that the money had been
tendered to the applicant, but had been wrongfully
refused by him. He ordered execution to issue as
to costs, but declined to make any order as to
possession. Tlie applicant thereupon applied to
the High Court in its extraordinary jurisdiction
and alleged that the money had not been duly
tendered. Held, that the decrees were such as the
Mamlatdar could not legally make under the provi-
sions of the Mamlatdars' Courts Act (Bombay Act
III of 1876), and the consent of parties could not
give him power to do so. Ramr.^o Tatyaji Patil
V. Babaji Dhonji Bibve I. Ij. R. 20 Bom. 630

11. Possessory suit against

lessee's heirs after the determination of the
term — Death of lessee during the term of lease.
If heirs succeed to their fathers' rights under a
lease, the jurisdiction of the Mamlatdar in a suit for
possession arises on the determination of that lea?e
against such heirs as though the original tenant were
then ahve. Amarchand Hixbumal v. Savalya
I. L. R. 21 Bom. 738

12. Dispossession of a third

person not a party to suit — Bemedy of 'person
so dispossessed — Civil Procedure Code, 1882,
■s. 622. G got a decree for possession against p in
a Mamlatdar's Court. In execution the Mamlatdar
directed the ouster of C, who Avas in possession and
who was not a party to the decree. Held, that the
Mamlatdar's order for the execution of the decree by
the ouster of C was witliout jurisdiction, and that it
should be set aside under s. 622 of the Civil Proce-
dure Code. Chinaya v. Gangava

I. L. R. 21 Bom. 775

13. Person ousted in execution

no party to the decree — Suit for posses" imi in
Mamlatdar's Court hy person- ousted. A person
ousted in execution of a decree of the Mamlatdar's
Court, to which he was no party, can himself bring a
suit for possession in the Mamlatdar's Court against
the person by whom he was ousted, and the defend-
ant in such a suit cannot rely on the fact of his
having obtained possession in execution of a. decree
against other parties as a bar to the jurisdiction of
the Mamlatdar. Ningappa v. Adveppa

I. L. R. 24 Bom. 397

14.

Remedy as between joint

owners put into possession under decree of
Civil Court. In execution of the decree obtained
in 1886 in a Civil Court, the plaintiff and the defend-
ants were put into joint possession of certain land.
The plaintiff subsequently brought this suit in the
Mamlatdar's Court to recover possession of the said
land, alleging that the defendants, by taking cocoa-
nuts from trees standing thereon, had dispossessed

MAMLATDAR,^ JURISDICTION OF-

concld.

him of the^saidjland otherwise than by due course
of law. The Mamlatdar held that the plaintiff had
been thereby dispossessed, and passed a decree
ordering the defendants to deliver up possession of
the land to the plaintiff, together with the trees
growing thereon. Held, that the Mamlatdar had
no jurisdiction to pass the decree. The Civil Court
had passed a decree giving the parties joint posses-
sion of the land, and the Mamlatdar had no
jurisdiction to override that decision and to place
the plaintiff in exclusive possession. By the decree
of the Civil Court they were determined to be
joint owners, and the remedy in case of uneqii?!
possession or taking of produce was a suit for an
account or for partition. Bhau v. Dade Krisf-
NAji Bhagvi . . I. L. R. 21 Bom. 77?

15.

Possessory suit— Jurisdic-

tion— Previous order of Magistrate under s.
145, Criminal Procedure Code [Act V of 1898).
On the 22nd of December 1900 a Magistrate
passed an order under s. 145 of the Criminal Proce-
1 dure Code (Act V of 1898), deciding that, on the
I 20th cf October 1900 one Sayad Martooza was in
I actual possession of certain land. On the 6th of
I March 1901 the plaintiff brought this suit against
the defendants (of whom the said Sayad Martooza
was one) to recover possession of the said land,
alleging that on the 10th of October 1900 ti
defendants had wrongfully dispossessed him of it.
The Mamlatdar held that, having regard to tht
Magistrate's order of the 22nd of December 1900,
he had no jurisdiction to hear the suit. On applica-
tion to the High Court : — Held (remanding the case
for disposal), that the Mamlatdar had jurisdiction!
to try the case. Lillu v. Annaji, I. L. R. 5
Bom. 387, distinguished. Nagappa v. Badp.tjdin'
I (1901) . \ . I. L. R. 26 Bom. 353

MAMLATDARS' COURTS ACT (BOM.
ACT V OF 1864).

See Execution op Decree — Mode of
Execution Generally — Powers oi
Officer.s in Execution.

5 Bom. A. C. 158

I See High Court, Jurisdiction of-

Bombay— Civil . 9 Bom. 24S
See Jurisdiction of Revenue Court-
Bombay Regulations and Acts.

I. L. R. 1 Bom. 624

See Limitation Act, 1877, Art. 47.
I 9 Bom. 42^

I I. L. R. 5 Bom. 25 ; 2'

10 Bom. 47J
I I. L. R. 18 Bom. 34J

[ See Mamlatdar, Jurisdiction of.

5 Bom. Cr. 4i

See Penal Code, s. 188 3 Bom. Cr. 5:
5 Bom. Cr. 2

See Right of Suit — Costs.

8 Bom. A. C. 2;

( 8129 )

DIGEST OF CASES.

( 8130 )

SIAMLATDAHS' COURTS ACT (BOM.
ACT III OF 1876).

See Limitation Act (XV of 1877), Appli-
cability OF I. Ii. R. 30 Bom. 415
See Mamlatdar, Jurisdiction of.
See Mamlatdar's Court.
See Minor — Representation of Minor
in Suits -. I. L. R. 21 Bom. 88
I. L. R. 24 Bom. 238
See Practice — Civil Cases — Reference
TO High Court.

I. L. R. 21 Bom. 806

See Specific Relief Act. s. 9.

I. L. R. 15 Bom. 685

exercise of powers conferred

See Bombay Land Revenue Code (Bom.
Act V OF 1879), s. 15.

I. L. R. 25 Bom. 318

1. Jurisdiction — Possessory suit

-tiiiit against Collector in his official capacity —
lamlatdars' jurisdiction to entertain the suit.
[amlatdars empowered by the Mamlatdars' Courts
ct (Bom. Act III of 1876) cannot entertain and
ecide suits to which the Collector is a party. The
jling in Balvantraov. Sprott, I. L. E. 23 Bom. 761,
ualified. Motilal v. The Collector of Ahjieda-
ad (1906) . . I. L. R. 31 Bom. 86

2. " Houses "— " Premises." The

itention of Bombay Act III of 1876, as stated in the
reamble, was not to abolish the old Mamlatdars'
ourts and create new Courts under the same name,
ut was to bring into one consolidating and amend-
ig Act so much of the old law and such new law
3 appeared necessary for the continued regulation
•' the existing Courts. The High Court is therefore
)t deprived of the powers of superintendence and
Ivision which it exercised over the'i Mamlatdars'
jurts previously to the passing of that Act. Per
inhey and F. D. Melvill, J J. — Under Bombay
;ct III of 1876, the Court of a Mamlatdar has, for
-irposes of the Act, jurisdiction in^a town or city
jtuated within the ordinary limits of his talukh.
|he word " premises " used in s. 4 of the Act includes
\ houses "; and the jurisdiction of the Mamlatdar's
laurt consequently extends over a house for pur-
j)ses of the Act. It being not denied that the city
1^ Ahmedabad is within the limits of the Daskroi
jilukh, the jurisdiction of the Court of the Daskroi
amlatdar extends over a house in the city of
amedabad. Bai Jamna v. Bai Jadav

I. L. R. 4 Bom. 168

i s. 3, cl. 1 — Head karhun taking

mporary charge of office of Mamlatdar — Decree
[ode by him in possessory snii — Jurisdiction — Bom-
Vy Land Revenue Code {Bom. Act V of 1S79), s. 15.
\ karkun taking temporary charge of the office
|iring the absence of the Mamlatdar on casual
ave is not a revenue officer ordinarily exercising
e powers of a Mamlatdar within the meaning of
3 (1) of the Mamlatdars' Courts Act (Bombay Act

VOL. III.

MAMLATDARS' COURTS ACT (BOM
ACT III OF 1876)— con^J.

s. Z—concld.

Ill of 1876). He is an officer exercising on an
extraordinary occasion some such powers under the
Bombay Land Revenue Code (Bombay Act V of
1879), s. 15. Therefore a decree pas.sed by him in a
possessory suit is a decree made by an unauthorized
person purporting to exercise a jurisdiction which no
competent authority had conferred upon him. NiN-
GAPAi". Dodapa . I. L. R. 21 Bom. 558

!• ■ S. 4 — Jurisdiction of Mamlatdars^

Courts in redemption suits — Construction of sta-
tutes. Under Bombay Act III of 1876, Mamlatdars
have no jurisdiction to take cognizance of suits
arising out of disputed claims to redeem mortgages.
Shidlingapa v. K arise as apa

I. L. R. 11 Bom. 599

2. — Award of partial

claim — Injunction — Practice. The plaintiff's suit to
have the defendants restrained by injunction from
causing disturbance to him in cultivating his fields
was rejected by the Mamlatdar, on the ground that
his allegations were not proved against alfthe defend-
ants, one of the defendants having been found not
to have disturbed the plaintiff. Held, reversing the
order of the Mamlatdar, that there was nothing in
the Mamlatdars' Act to prevent the Mamlatdar
from granting the injunction as against the defend-
ants against whom the case was proved. The
High Court directed an injunction to go under s. -t
of the Mamlatdars' Act restraining the said defend-
ants from causing the alleged disturbance to the
plaintiff. Chintamanrav Narayan Gole v. Bala

I. L. R. 14 Bom. 17

3. Jurisdiction — Dis-
putes between riparian proprietors. A Mamlatdar's
Court has no jurisdiction to determine questions
arising between riparian proprietors as to the
amount of water each can take from a stream. A
suit will lie in a Mamlatdar's Court where a person
has been disposscs.sed or deprived of the use, or
when he has been disturbed or obstructed, or
when attempt has been made to disturb cr
obstruct him in the use of water of which he is in
possession or was in possession within six months
before suit. Babaji Ramji v. Babaji Devji

I. L. R. 23 Bom. 47

Jurisdiction of

Mamlatdar — Water-course — Riparian oumers, right
of. The law as to riparian owners is the same in
India as in England, and is stated in illustration {h)
of s. 7 of the Easements Act (V of 1882). Each
proprietor has a right to a reasonable use of the water
as it passes his land, but, in the absence of some
special custom, he has no right to dam it back, or
exhaust it so as to deprive other riparian owners of
like use. \Ahat «-ould constitute an unreasonable
diversion of water such as to disturb the use of
the lower riparian owners is a question of fact which
the Legislature has given a Mamlatdar jurisdiction
to decide. Narayan Hari Deval r. Kesat
Shivram Deval I. L. R. 23 Bom. 506

12 C

( 8131 )

DIGEST OF CASES.

( 8132 )

MAMLATDABS' COURTS ACT (BOM.

ACT III OF 1816)— contd.
s. 4 — contd.

5_ cl. 2— Jurisdiction to grant an

injunction— Possession— Physical possession—Dis-
turbances of possession. Under s. 4 cl. 2, ot the
Mamlatdars' Act (Bombay Act III of lb7b), a
Mamlatdar can errant an injunction in those cases
only in which an interruption of physical possession
or enioyment is sought to be removed. Desai Mala-

BHAI-BAPUBHAI .. KkSAVBHAT K^^EKBHAI^^ ^^^

MAMLATDARS' COURTS ACT (BOM.
ACT III OF l816)—contd.

s. 4 — concld.

Jurisdiction of

Mamlatdar— Removal of earth from field— Profii^ of
land. The removal of earth from a field is a taking
of a portion of the substance, not merely of a pro tit
of the land ; and the Mamlatdar has no jurisdiction,
under s. 4 of Bombay Act III of 1876, to entertain an
application for an injunction to restrain the defend-
ant from obstructing the plaintiff in the exercise
of her rijrht to take earth from the defendant s land.

Faki Ismail V. Umabai BivALKAR

I. L. R. 7 Bom. 425

Injunction — Pos-

session— Constructive possession— Landlord and I
tenant. A landlord who has only a constructive
possession of lands through his tenant cannot
obtain relief by way of injunction under d. 2 of s 4
of the Mamlatdars' Act (Bombay Act III of 187R).
Desai Malahhai Bapuhhai v. Keshavhhai Ruber-
hhai, I. L. R. 12 Bom. 419, followed. Nemava r.
Devandrappa . I. li. B. 15 Bom. 177

8. Jurisdiction — Suit

for injunction for disturbance of possession — Po'ises-
sion of landlord by tenant— Physical possession —
Right of suit. There must be physical possession to
enable an aggrieved person to invoke the Mamlat-
dar's assistance in a case falling under the second
clause of s. 4 of the Mamlatdars' Courts Act (Bom-
bay Act III of 1876). A person who is in possession
through his tenant cannot sue for an injunction for
disturbances of possession under the Act. Maldbhai
v. Keshavbhai, I. L. R. 12 Bom. 419, approved
and followed. Aba bin Sadoba v. Parvatrao bin
Ganpatrao . . I. Ii. R. 18 Bom. 46

recovery of possession of a house situate within a
town was instituted in the Court of a Mamlatdar
while the Mamlatdars' Courts Act (Bom. Act III
of 1876) was in force, but before the suit was finally
decided that Act was repealed and the Mamlatdars'
Courts Act (Bom. Act 11 of 1906) had come into
operation. Held, that the Mamlatdar had no juris-
diction to decide the suit. Per Curiam.— The
repealed statute is, with regard to any further
operation, as if it had never existed. Regina \.
Denton, IS 0. B. 761, followed and applied. Vaje-
CHAND V. Nandram (1907) I. Ii. R. 31 Bom. 545

_ ss. 4, 15, 18 and 21 — Limitatior

AcTlXV of 1^77), Sch. II, Art. 47— Possessor',
suit in Mamlatdar's Court — Rejection of plaints
Subsequent suit for possession on title in ordimry\
Court — Limitation. A plaintiff suing in the ordi-i
nary Courts on his title for the possession of land is
not bound by reason of anything contained ic
Art. 47, Sch. II of the Limitation Act (XV oi
1877) or s. 21 of the Mamlatdars' Courts Ad
(Bombay Act III of 1876) to bring his suit withini
three years from the previous rejection of his plaint
by a Mamlatdar in a suit for the possession of thai
land. ■"' As a suit on title is outside the Mamlatdar':
jurisdiction, a mere rejection of a plaint by hin
cannot be treated as an order binding the plaintiff u
reference to that which is the cause of action in i
suit on title. Tukaram v. Hari (1904)

I. L. R. 28 Bom. 60

S 8 — Amendment of plainl-

Natural water -

Mamlatdar's power to order a plan to be appende
to the plaint. In a possessory suit filed under Bom
bay Actflll of 1876 the Mamlatdar has no power t
order the plaintiff to append a plan to the plami
showing the situation of the property in dispute. .
the plaint is defective in its statement of the nece
sary particulars as to the nature and situation (
the property, the amendment contemplated by tn
Act is an amendment in writing on the face of tl
plaint. Chenbasaya r. Rudrapa

I. L. R. 14 Bom. 56
-Suit for possessii

course — Riparian proprietors — Obstruction to the
flow of water — Injunction — Jurisdiction. Held by
the Full Bench (Whitworth, J., dissenting), that a
Mamlatdar has, iinder the Mamlatdars' Courts Act
(Bom. Act III of 1876), jurisdiction to inquire into
a case in which it is alleged that an upper riparian
proprietor has unduly interfered with the flow of
water in a natural water-course from which a lower
riparian proprietor also takes water. Som Gopai-
Bhogale v. Vinayak Bhikambhat (1900^

I. Ii. R. 25 Bom. 395

10. Mamlatd<irs'

Courts Act {Bom. Act III of 1876), s. 4— Mamlatdars'
Court Act (Bom. II of 1906), s. 5 — Suit for possession
of a house situate within a town — Jurisdiction —
Act of procedrire — Repealed statute. A suit for the

— Parties— Tenants of defendant— Rejection of pla
for misjoinder of parties— Procedure. Defendaj
No. 1, having obtained a decree against the plamti!
for possession of certain land in the Mamlatda,
Court, leased the land to defendants Nos. 2 andj
Shortly afterwards the Mamlatdar's decree w
reversed by the High Court on the plaintiff's apti
cation. Thereupon the plaintiffs sued the fi|
defendant and his tenants (defendants Nos. 2 and V
who were in actual possession, to recover the laij-
The Mamlatdar rejected the plaint, holding tlj
there was a misjoinder of causes of action, one s^
being brought against different persons for dittW
causes of action arising at different times._ i/j.
that the Mamlatdar should accept the plaint aji
hear the suit on its merits. The defendant. ^'
had obtained possession under a decree which i

( 8133 )

DIGEST OF CASES.

( 8134 )

MAMLATDARS' COURTS ACT (BOM.
ACT III OF 1816)— contj.

__ s. 8 — concld.

been reversed, could not improve his position by
letting third parties into possession as his tenants,
rhey stood in the shoes of their lessor and were
jointly liable with him to be ousted by proceedinfts
taken in the Mamlatdar's Court. Axtu v. Vishnu
Glovrs-D Bawa . . I. L. R. 22 Bom. 630

S.13.

See Res Judicata — Judgments on Pre-
liminary Points I. L. R. 6 Bom. 477
I. L, R. 21 Bom. 91
I. li. R. 24 Bom. 251

Limitation Act {XV

•/ 1877), Sch. II, Art. 47— Possessory suit—

'amlatdar's Court. In a possessory suit instituted
n a Mamlaidar's Court, neither the plaintiS nor
he defendant appeared at the hearing. The case
vas therefore disposed of by the Mamlntdar, under
he first part of s. 13 of the ilamlatdar.s' Courts Act
Bombay Act III of 1S76). Held, that the order of
he Mamlatdar was an order rejecting the plaint.
\. regular suit for possession having been brought
a. a Civil Court more than three j'cars after the
'bove order of the Mamlatdar .- — Held, that the suit
TSiS time-barred under Art. 47, Sch. II, of the
-imitation Act {XV of 1877V Purushottam
)ayaram v. Chatargir Guru Arjungir (1900)
I. li. R. 25 Bom. 82

1. s. 15, cl. (c) — JIamlatdar's poiver

) try subsequent suit in respect of the same
ubject-matter — Practice — Parties. The applicant
-iad been dispossessed of certain land, in execution
if a decree obtained by the opponent in the Court of
'le Mamlatdar of Karad, under cl. (c) of s. 15 of the
[amlatdars' Act, III of 1876, to which he (1;he
Ipplicant) was not a party. The applicant there-
upon brought the present suit against the opponent
1) recover possession. The Mamlatdar, relying on
I Government circular, dismissed the suit as res
\idkata. The applicant applied to the High Court
iQder its extraordinary jurisdiction. Held, that
jie decree made by the Mamlatdar in the former
I lit, under cl. (c) of s. 15 of the Mamlatdars' Courts
jct. III of 1876, was no bar to the exercise by him
, jurisdiction in the present suit, the present
aintiff (applicant) not having been a party
the former proceedings ; and that it was
. regular for the Mamlatdar to refer to a Resolution
j Government for the purpose of determining the
Ifect to be given to his former decree. The order
the Mamlatdar was reversed, and the case directed
be heard. Govinda Babaji v. Natku Joti

I. li. R. 10 Bom. 78

- — — Suit for injunc-

-Person dispossessed in execution of decree —

•medti hy suit or application under s. SSJ of the

of Civil Procedure (Act XIV of 1SS2). A

'U is not entitled to claim relief (by way of

taction) under s. 15, cl. (c), of the Bombay

milatdars' Act (III of 1876), if he is not in posses-

a at the time of the suit. A person dispossessed

MAMLATDARS' COURTS ACT (BOM.
ACT III OF 1816)— contd.

s. 15 — concld.

of his land in execution of a decree of a Civil Court
I against a third party should proceed for the al-
leged ob.struction of his possession not by a suit in
1 the Mamlatdar's Court, but by an application
under s. 332 of the Code of Civil Procedure (Act XIV
I of 1882), or by a regular suit. Gulabbhai GoPAUi
I V. JiNABHAi Ratanji . I. L. R. 13 Bom. 213

L s. 17 — Decree for possession —

Obstruction to execution of decree — Pouer to use
force in execution, of decree. When a Mamlatdar
passes a decree for possession, it is his duty, under
a. 17 of Bombay Act III of 1876, not merely to issue
orders to the village officers to execute the decree,
but also to see that eilect is really given to his
decision. For this purpose he may use force, if
necessary, to "eject the person against whom the
decree is passed. Shankar Ramlal Dikshit t'.
Martandrao Bhau Tipnis I. Li. R. 14 Bom. 157

2. and s. 4:^Mamlatd.ar's power

to levij costs — Costs of litigation in High Court.
A Mamlatdar acting under s. 4 of Bombay
Act III of 1876 issued an injunction to A, restraining
him from obstructing B's possession of certain land .
On A's application, the High Court, in the exercise
of its revisional jurisdiction, set aside the injunc-
tion order, and directed B to pay A's costs of the
application. A thereupon applied to the Mamlatdar
to levy the costs decreed by the High Court. The
Mamlatdar rejected the application for want of
jurisdiction. Held, that under s. 17 of Bombay Act
III of 1876 the Mamlatdar had the same power
to levy costs decreed by the High Court as he had
regarding costs decreed in his own Courts. The
litigation in the High Court was a continuation of
the suit in the Mamlatdar's Court, and any costs
incurred were subject to the rules laid do\vn in the
Act. Nemava v. Devandrappa

I. L. R. 16 Bom. 238

Mamlatdar, duty

and jurisdiction of — Execution of Mamlatdar's
decree by Mamlatdar under directions of Collector —
Superintendence of High Court. A Mamlatdar
having under the direction of the Collector executed
a decree passed by himself directing the removal of
a dam : — Held, that, though it might be improper
for the Collector to issue such a direction, which
legally could only issue from the High Court, the
High Court would not set aside the execution if
otherwise valid. S. 17 of the Mamlatdars' Courts
Act (III of 1876) is imperative, and leaves to the
Mamlatdar no discretion as to the duty of enforcing
the decree. The Act does not purport to provide
detailed rules as to applications for execution, and
a Mamlatdar's Court, is not governed as to execution
of decrees by the ordinary rules of procedure; and
provided the procedure followed gives effect in the
end to the intention of s. 17, the Court will not
interfere. Held, also, that, under s. 17 of the
Mamlatdars' Courts Act, a Mamlatdar was not pre-
cluded from himself supervising the execution of a
decree in a case in which the village officers were

12 c 2

( 8135 )

DIGEST OF CASES.

( 8136 )

MAMLATDARS' COURTS ACT (BOM.
ACT III or 1876)— concld.

s. 17 — concld.

from interest or other cause unlikely to give proper
effect to it. Rakhma v. Tttlaji

I. L. R. 19 Bom. 675

4. and s. 18 — Procedure appli-
cable to such Courts. Where a person is dispos-
sessed in execution of a Mamlatdar's decree
against a third party, his proper remndy is by a suit,
and not by a miscellaneous application. Though
the Mamlatdars' Courts, as constituted under Bom-
bay Act III of 1876, are Civil Courts, subject to the
revisional jurisdiction of the High Court, it does
not follow that the provisions of the Code of Civil
Procedure are generally applicable to those Courts.
Bombay Act III of 1876 provide a special procedure
for Mamlatdar,s' Courts, and there is no indication
in the Act of any intention that the rules of the Code
of Civil Procedure shall apply to causes for which
the special procedure makes no provision. Ss. 17
and 18 of the Act, which relate to the execution of
Mamlatdars' decrees, cannot be supplemented, as to
matters not referred to in those sections, by any of
the provisions of the Code relating to the execution
of decrees of Civil Courts. Kasam Saheb valad
Shah Ahmed Saheb v. Maritti bin Rambhaji

I.L. R. 13Bom. 552

5. Mamlatdar's de-
cree, by whom it may be questioned — Bejerence to High
Court by Collector — Practice — Procedure — Bight of
suit. A party aggrieved by a Mamlatdar's decree
may apply to the High Court to set it aside, or may
question its validity by a suit in a Civil Court. But
where a Collector referred the record and proceeding
in a case decided by a Mamlatdar under Bombay
Act III of 1876, in order that the decree might be set
aside as ultra vires, the High Court declined to inter-
fere. Voka Isaballi v. Daudbhai Musabhai

I. L. R. 14 Bom. 371

6. Possessory suit —

Decision — Duty of the Mamlatdar to order village
officers to give effect to his order — Duty absolute
and unqvalifhd — Limitation Act (XV of 1877) not
applicable. Where a Mamlatdar's decision awards
possession, s. 17 of the Mamlatdars' Courts Act
(Bombay Act III of 1876) imposes on him the duty
to issue an order to the village officers to give effect
thereto. The duty is in no sense conditional on an
application being made to the Mamlatdar for the
purpose ; it is absolute and unqualified. Where
such imperative duty is imposed upon a Court, then
the Limitation Act (XV of 1876) has no application.
Kylasa Goundan v. Bamasami Ayyan, I. L. B. 4
Mad. 172 ; Vithal Janardan v. Vithojirav Putlajirav,
I. L. R. 6 Bom. 586; Iswardas Jagjivandas v.
Dosibai, I. L. R. 7 Bom. 316 ; and Devidas Jagjivan
v. Pirjada Begam, I. L. B. 8 Bom. 377, followed.
Balajiu. Ktjshaba (1906) I. L. R. 30 Bom. 415

s. 18 — Bight of suit — Suit to set aside

Mamlatdar's order. No suit will lie to set aside an
order validly passed by a Mamlatdar under Bombay
Act III of 1876, though such an order may be
superseded by a decree of a Civil Court. Tuljaeam
f Bamanji Kharsedji I. L. R. 19 Bom. 828

MAMLATDARS' COURTS 'ACT (BOM
ACT II OF 1906).

—— ss. 7and23"— GenerflZ Clauses Ad

(/ of 1904), s. i~Bepeal of the Mamlatdars' Courts
Act {Bombay Act III of 1876) by the Mamlatdars'
Courts Act [Bombay Act 11 of 1900)— Suit commenced
uTider the former Act— Effect of the latter Act
The plamtitf filed a suit on the 24th February 190e
under the Mamlatdars' Courts Act (III of 1876)
On the 20th October 1906 the Mamlatdars' Courts
Act (II of 1906) came into operation, and by s. ^
of that Act the Mamlatdars' Courts Act (III of 1876
was repealed. On 26th January 1907 the Mamlat-
dar dismissed the suit with costs. On the 12th Marcl
1907 the plaintiff, under s. 23 of the Mamlatdars
Courts Act (II of 1906), presented an applicatioi
for revision to the Collector. Under the Mainla^'
dars' Courts Act (III of 1876) the Collector had t
power of revision. Held, that having regard to th
words of the Bombay General Clauses Act the Col
lector had no jurisdiction : to hold otherwise woul
be to affect a legal proceeding in respect of a righ
which had accrued under the old Act. To distur
an existing right of appeal is not a mere alteratio

I in procedure. Gulam Basul v. Balu Sayaji, 9 Bov
L. B. 527, and Vajechand Bamji v. Nandra'i
Daluram, I. L. B. 31 Bom. 545, not followet
Nana v. Shektj (1908) . I. L. R. 32 Bom. 33
- s. 19, el. (b) — Possessory suit-
Lanilord and tenant — Trespasser dispossessit
the tenant during the duration of tenancy — Landlm

j suing to recover possession within six months fro
the determination of the lease. On the 5th .lui
1905, the plaintiff let certain lands to defendan
Nos. 1 and 2. During the continuance of t'j
tenancy defendant No. 3, a trespasser, dispossess^
defendants Nos. 1 and 2 and got into possession '
the lands in November 1905. The tenancy deti
mined on the 6th June 1906. On the 29th Octol
1906 plaintiff filed a possessory suit in the Ma
latdar's Court against the defendants Nos. 1-
to recover possession of the lands. The defends
No. 3 contended that her adverse possession havi
commenced more than six months before ■■
institution of the suit, the Mamlatdar bad
jurisdiction so far as the plaintiff's claim agai
her was concerned. Held, that the plainti
remedy having been to bring his suit under cl;i
(6) of s. 19 of' the Mamlatdars' Courts Act (B>
bay Act II of 1906), on the expiry of the tenai
the fact that a trespasser got into posses-
during the continuance of the tenancy, but n
than six months before its determination, did
oust the Mamlatdar's jurisdiction. Per Cha>
VARKAK, J. — The Mamlatdars' Courts Act (Bom
Act II of 1906) is a remedial measure and mus
liberally construed so as to advance the rem*
Deu Dada Gavli v. Sitaeaji Chijinaji (1907)

I. L. E. 32Bom.'5

MANAGEMENT OF ESTATE
COURT.

See Criminal Procedttbb Code, s. U
I. li. R. 29 Calc. 32

( 8137 )

DIGEST OF CASES.

( 8138 )

MANAGEMENT OF ESTATE BY

COURT— coHcW.

1. Summary enforcement of con-
tract made by the Court—Izarah lease — Lessee
— Application by a person not a party to a suit. A
Court has complete power to enforce summarily a
contract made by it when managing or administer-
ing an estate, whatever that contract may be. Such
power of enforcing suFsisting contracts made by it
is not affected by the fact that the Court has ceased
to manage the estate before such contract is carried
lut by reason of the dismissal of the suit under an
)rder in which the Court had derived its power of
nanagement. Case in which the Court passed
•.ummarily such an order on the application of a
essee, not a party to the suit in whicli the order
•ompleting the agreement for lease had been passed,
nd at the time when such suit was no longer in
;■ Jstence. Surendro Keshub Roy v. Doorga
SooNDEEY DossEE. Ex parte Sarod apersaud
!ooR ... I. L. R. 15 Gale. 253

2. Rights

I judgment-creditors. There is no law or procedure
nder which a Court can, on the mere application
if t\u- parties interested, take over the nianage-
aent of properties belonging to an estate, and
■ass such orders as would place them entirely
(leyond the reach of the judgment-creditors of
■;he estate. Puean Mal i\ Janki Pershad
liSGH (1901) . . I. L. R. 28 Gale. 680

s.e. 6 G. W. N. 114
lANAGER.

Sec Act XL of 1858. s. 18.

I. L. R. 4 Gale. 929
,WBankers . I. L. R. 16 All. 88

See Bengal Tenancv Act, s. 9.5.

I. L. R. 22 Gale. 634

I. L. R. 23 Gale. 522

4 G. W. N, 769

10 G. W. N. 437

.See Common Manager.
See Court of Ward.s.

I. L. R. 33 Gale. 273

See Factories Act (XV of 1881), ss. 12,
15 (i) (e) . I. L. R. 29 Bom. 423

• See Hindu Law — Joint Family.

I. L. R. 31 Mad. 318

Se ^Iagistrate . I. L. R. 32 Gale. 287

— application for —
Sec Appeal — Acts — Bengal Tenancy
Act . . I. li. R. 14 Gale. 312

iSee Bengal Tenancy Act, s. 93.

I. L. R. 20 Gale. 881

See Lunatic.

appointment of, by Gourt of

MANAGER— co«W.

— liability of landlord for acts of—

See Rioting . I. L. R. 28 Gale. 504

-of company —

See Possession, Order of Criminal
Court as to — Parties to Proceed-
ings . . I. L. R. 21 Gale. 915
I. L. R. 25 Gaic. 423

— of Gourt of Wards —
.See Public Servant.

I. li. R. 28 Gale. 344

— of endowment —

See Hindu Law — ^Endowment.

— of endowment, removal of—
See Act— 18G3— XX, s. 14.

I. L. R. 24 Mad. 243

— of indigo concern —

See Possession, Order of Criminal
Court as to — P.arties to Proceed-
ings . . . 7 G. W. N. 208

— of joint family —

See Arbitration — Reference or Sub-
mission TO ARBITR.A.TION.

I. L. R. 27 Bom. 287
-See Hindu Law — Joint Family —

Nature of Joint Family, and Posi-
tion of Manager ;
Debts, and Joint Family Business ;

7 G. W. N. 725
Powers of Alienation by Members —
Manager.
See Limitation Act, 1877, s. 19 (1S71.
s. 20) — Acknowledgment of Debts.

I. L. R. 1 Mad. 385
I. L. R. 5 Mad. 169
L L. R. 17 Bom. 512
See Malabar Law — Joint Family.
See P.artition — Jurisdiction of Civil
Courts in Suits respecting Parti-
tion . . I. L. R. 28 Gale. 769

Wards—

iSee Right of Suit — Interest to sup-
port Right . 13 B. L. R. Ap. 14

— of land —

Sec Possession, Order of Criminal
Court as to — Parties to Proceed-
ings . . . 7 C. W. N. 825

of lunatic's estate—
See Lunatic . I. L. R. 30 Gale. 973

— of railway, agent of—
See Railways Acts, •5. 77.

I. L. R. 24 Gale. 306

— service of summons on —

See Civil Procedure Code, 1S82, s. 80.
13 G. W. N. 490

( 8139 )

DIGEST OF CASES.

( 8140 )

MANAGER— co»c?(i.

■ • Powers of Man-
ager—Bengal Tenancy Act {VIII of 188,5), ss. 93,
98 — Mortgage by manager — Bestraint on powers of
co-owners while estates under management — Mortgage
by co-owner of his share, effect of — Appeal to Privy
Council — Sufficiency of certificate of leave to appeal —
Civil Procedure Code (Act XIV of 1882), ss.'595, 596,
600. The powers given by s. 98 of the Bengal Ten-
ancy Act to a manager of joint property apj)ointed
under s. 93 " for the purposes of management "
include the power to mortgage or to sell the property.
The restraint put i;pon the co-owners by s. 98, sub-
s. (5), of the Act, whilst the estate is under manage-
ment, is co-extensive with the power conferred on
the manager ; it does not extend to the exercise of
individual rights. Where one of the co-owners of
an estate under management mortgaged his share,
which in execution of a decree on the mortgage was
purchased by the mortgagee : — Held, that the mort-
gagee thereby became a co-owner under the man-
ager and as such was entitled to the benefit of a
decree for redemption in a suit on a mortgage of
the estate by the manager. On an objection taken
that the appeal had not been properly admitted :
— Held, that the case was soverned bv Webb v.
Macpherson, I. L. R. 31 Calc. 57 : L. R. 30 I. A. 238,
and that the certificate of leave to appeal was
sufiicient. Amak Chandra Kundtj v. Shoshi
Bhusan Roy (1904) . I. L. R. 31 Calc. 305
S.C. 8 C. W. 3Sr, 225
L. R. 31 1. A. 24

MANAGER OF ATTACHED PRO-
PERTY.

ATTACHED PRQ.

See Act XI of 1859, s. 5.

12 B. L. R. 297
Ii. R. 1 I. A. 89

See Receivee.

appointment of manager —

Discretion of Court — Civil Procedtire Code, 1882,
s. 503 {1859, s. 249). It is discretionary with the
Court to appoint a manager under this section.
Beojender Naeain Roy v. Kassessur Roy

1 W. R. Mis. 15

Singh v . Ottom Ram Surun Lall

23 W. R. 287

2. Conserd of decree-
holder— Civil Procedure Code, 1859, s. 243. A
manager may be appointed bv the Court under Act
VIII of 1859, s. 243, without the consent of the
decree-holder. Thakoor Chunder v. Chowdhry
Chotee Singh . Marsh. 261 : 2 Hay 112

Civil Procedure

Code, 1859, s. 243. In appointing a manager under
s. 243, Act VIII of 1859, a Court must exercise
a reasonable discretion, and the sole reason for such
appointment ought to be that, whilst the debts
would be equally satisfied in that manner, and as
surely as in any other, the arrangement would at
the same time save the debtor from great pros-
pective loss. ZXTHOORXJN V. NtTJEEBOODDEEN

11 W. R. 505

I MANAGER OP

PERTY— con^cZ.

I 4« ■ • Lease or mortgage

of attached property — Civil Procedure Code, 1859

\ s. 243. S. 243, Act VIII of 1859, gives no authority
to a Court to give a lease or mortgage of attached
property, but only to give time to the judgment-
debtor to mortgage or let his land or sell part of it
when he can satisfy the Court that there is reason-
able ground to believe that the amount of the decree
will be raised thereby. Luchmeepft Doogur t>.
Jtjgut Indue Tewaree . W. R. 1 64, Mis. 5

5. Civil Procedure

Code, 1859, s. 243 — Ground for allowing time to
pay decree. A Judge is not bound, under s. 243,
Act VIII of 1859, to allow a judgment-debtor &,
year's time to pay his decree, without the debtof.l
assigning some good or sufficient reason for tb
delay, e.g., that the money due to the judgment-
creditor could be raised equally well in some other
way than by immediate sale, and that the creditoi
would not by that arrangement be put to loss.
Ram Ruttun Neogy v. Land Mortgage Bank oi
India 17W. R.19J

6. Ground for allow

ing time to pay decree — Civil Procedure Code
1859, s. 243. There should be a reasonable probabil
ity of the debt being discharged by the profits o
the estate within a reasonable short period. SuHC
Narain Sahee v. Ram Pershad Misser

21 W. R. 14<

7. ■ Inquiry as i

value of property — Rules of High Court, 11th Jv}
1871. Where property of a judgment-debtor is a
ready in charge of a manager duly appointed, and |
is proposed to put other properties belonging to tl|
debtor also under his charge, an attachment of tl:
property is necessary before appointing the managi
to take charge of them. The rule of Court of 111
July 1871 does not limit the time for which
manager should be appointed to two years. Tl
Judge as to that should exercise a proper discretio
Banwari Lal Sahtj v. Girdhari Singh

8 B. L. R. Ap. 23 : 16 W. R. 2';

Ajoodhya Doss v. Doorga Dutt Singh

17 W. R. K

8. Time in wh

debt could be paid off. A Court executing a decif
was held to have been justified in refusing to appoi|
a manager for attached property belonging to <t
judgment-debtor where it would have taken twer
years to pay off the debt from the profits of the p
perty. But the High Court saw no objection to i
appointment of a manager to dispose of portions
the property by sale, mortgage, and otherwise, un'
s. 243, Code of Civil Procedure, if the debt co
thereby be cleared off in six months. MoHi>
MoHUN Doss V. Ram Kant Chowdhry

15 W. B. 3?i

9. Distribution \f

i estate under manager — Priority of creditors. Af*
j A, a judgment-creditor, had attached property)!
I his debtor under the decree, the Court, at thei-

( 8141

DIGEST OF CASES.

( 8142 )

il.

Power of Court

appoint manager — Decree on specially-regis-
! bond — Registration Act, 186G, s. 55. AMiere
lower Appellate Court passed a decree on
I ially-registered bond, setting aside an arrange-
t made by the first Court as to payment by in-
dents and its order about interest ; — Held, that
■> of the Registration Act applied to the case,
; that the High Court was competent, in sub^e-
:it execution proceedings to make an order under
-^3, Code of Civil Procedure, appointing a re-
■ r, or giving opportunity to the judgment-debtor
pay ofE the decree by mortgage of the estate.

-I^HEJI COOMAEEE BiBEE V. GOLAB COOMAREE

;iBEE .... 15 W. R. 477

12. Ground, for re-

ng application — Civil Procedure Code, 1S59,
l-'i. Tlie fact of the judgment-debtor's possess-
properties other than the one attached, is no
ind for rejecting an application under s. 243,

MANAGER OF ATTACHED PRO-

PERTY— conk/.

stance of the Collector of the district, ordered that, j
instead of selling the estate, a manager should be j
appointed and the rents and profits applied in liqui-
dation of the claim of A and other decree-holders.
Held, that A was entitled, as he would have been
under s. 270, to some priority over the other credit-
ors. The Court, finding that A's debt might be
paid out of the proceeds of the estate in two years,
and at the same time funds be left for the
reduction of the other debts, ordered that it should
be so. Peaeee Debea v. Boydonauth Baugh
Marsh. 413 : 2 Hay 537

10, - Causing delay

in giving satisfaction of decrees. Numerous decrees
'iiad been obtained against the defendants, part of
, hose property consisted of a village which was
ittached in 1859. The village was under the man-
igement of the Collector, whom the Courts below
' reated as a manager put in under s. 243 of the Code
,)f Civil Procedure. The decree-holders received
ateable shares in the nett income of the village in
iquidation of their respective decrees. It appeared
hat it would take fifteen years to pay off the various
lecree-holders. The petitioner applied to the Civil
i^burt for an attachment of the village in execution
)f his decree. The application was refused on the
' ground that the village was already under attach -
nent in satisfaction of other decrees. Upon appeal
he High Court ordered a sale of the village, the sale-
i)roceeds to be dealt with in accordance with the
)roper provisions of the Code, on the ground that
t could never have been intended to give the Civil
I'ourts for an indefinite length of time the managc-
aent of the encumbered estates of the country, or
o compel decree-holders to submit to such an
inreasonable delay as fifteen or twenty years be-
ore obtaining satisfaction of their decree. Qucere :
Vhether s. 243 was intended to be applied to the
ase of more than a single decree-holder. Rednum |
itchtitaramayya v. Mahomed Ajiin Khan alias
>ADA Sahib ... 5 Mad. 272

MANAGER OF ATTACHED PRO-
PERTY—co«/r/.

Act VIII of 1859, for the appointment of a manager.
Debkumaki Bibee v. Ram Lal Mookerjee

3 B. L. R. Ap. 107 : 12 W. B, 6

13. Circumstancea

necessary for proof of necessity for order — Civil
Procedure Code, 1859, s. 243. \Vhere a judgment-
debtor asks that a manager be appointed under
Act VIII of 1859, s. 243, he must show that the
circumstances are such that the order for which he
applies would be a reasonable and proper one. He
should not only show what is the income of the
particular property and the amount due under the
decree, but he should also show whether that income
is unincumbered, and if incumbered, to what extent.
He cannot ask the Court to make an order under this
section with respect to one single property before
disclosing the whole state of his affairs, the extent
of his liabilities, and the means he has of meeting
them. DiNOBUNDHoo Sixgh v. Macxaghtex

2 C. L. R. 185

14.

Civil Procedure

Code, 1859, s. 243 — Order staying sale of property.
S. 243 of the Civil Procedure Code dees not author-
ize an order in the execution department having the
effect of staying the sale of certain propertj- for one
year. Fyz-ood-deen v. Gieaudh Singh

2 N. W. 1

Civil Procedure

Code, 1859, s. 243— Decree on mortgage. S. 243,
Act VIII of 1859, dees not apply to a decree on
a mortgage, when the decree declares that certain
propertv is to be sold in satisfaction of the mortgage -
debt. A manager therefore cannot be appointed
under s. 243 in such a case. Womda Khaxcm
V. Rajroop Koar

I. L. R. 3 Calc. 335 : 1 C. L. R. 295

16. Pou-er of Court

to order payment out of j)roceeds of sale. The
Court has no power to order that the manager
should, out of the proceeds of the estate, satisfy the
claims of persons other than decree-holders.
Thakoor Chunder v. CnowDHRY Chotee .Iingh
Marsh. 261 : 2 Hay 112

17.

Civil Procedure

Code, 1859, s. 243 — Power of Courts in mofussil to
appoint manager pending suit of administration.
Held, per Phear, J., that s. 243, Act VIII of
1859, does not give the Court authority to appoint a
manaticr to carry on a judgment-debtor's business
pending execution-proceedings, and to invest him
witli power to raise money for that purpose. Quwre :
Whether the Civil Courts in the mofussil have the
power possessed by the Court of Chancery in Eng-
land and by the High Court in Calcutta of manag-
ing the property of parties to a cause pending suit or
administration. But however this may be, the
Court's manager, under such circumstances, only
acquires a right to charge his costs and expendi-
ture against the parties to the suit or persons who
have knowingly placed themselves in a like position
relative to his management, and even then he can

( 8143 )

DIGEST OF CASES.

( 8144 )

MANAGER OF ATTACHED PRO-
PERTY—confZ.

only do so in respect of such expenditure as has
been expressly sanctioned by the Court. Moran
V. MiTTu BiBEE . . I. L. R. 2 Calc. 58

18.

Civil Procedure

Code, 18^9, s. 243 — Effect on attachmerht of appoint-
ing manager. An estate does not cease to be under
attachment merely by the appointment of a man-
ager under s. 243, Act VIII of 1859. Mohabeer
Pershad Singh v. Collector of Tirhoot

13 W. R. 423

19. ■ Power of Court

to deal with property under manager. The fact of
a manager having been appointed to realize the pro-
fits of a property with a view to satisfy certain
decrees (even though the appointment should have
been confirmed by the High Court) is no bar to a
Judge, on the application of another decree-holder
inquiring into the state of the property, and passing
proper orders, and, should he find that the proceeds
are insufficient to satisfy all the decrees within a
reasonable time, causing the decree to be executed in
the usual wav. Din Dyal Lall v. Ram Rttttun
Neoghee ." . . . . 16 W. R. 46

20.

Power of man-

ager— Officer of Court. A manager appointed und(
Act VIII of 1859, s. 243, so far as he is an officer of
the Court, is at most the hand of the Court for the
puipose of gathering in, on behalf of the judgment-
debtor, the moneys due to him, in order that they
may be immediately applied to the satisfaction of
the decree. If he does more than this and deals with
the subject of the property itself, he must do so as
the agent of the judgment-debtor, and not properly
as an officer of Court. In the matter of the petition
of Teil & Co. Teil & Co. V. Abdool Hye

19 W. R. 37

21. ■ Power of manager

under Act' VIII of 18-59, s. 2-13—ls'olice of enhance-
ment— Civil Procedure Code {Act X of 1877), s. -503.
A manager appointed under s. 243 of Act VIII of
1859 is appointed merely to collect rent and other
receipts and profits of the land, to carry on the exist-
ing state of affairs as the proprietor himself had
been doing, and he has no power to issue notice of
enhancement. Khetter Mohun Dftt v. Wells

I. L. R. 8 Gale. 719 : 11 C. L. R. 13

22. Removal of manager— Ow?'.s-

sion to file accounts. A\liere a manager had not
filed accounts and the Judge found that the manage-
ment could not be continued with any prospect of
the debt being paid within three years, he was held
to have done right in removing the manager and
ordering the property to be sold. Huree Sunkfr

MOOKERJEE V. JOGENDRO'COOMAR MOOKERJEE

22 W. R. 220

23. Summary remov-
al at request of decree-holder. Where a manager had
been appointed under s. 243, Act VIII of 1859, after
hearing arguments on both sides the Judge was held
not to be justified in removing him summarily at the
request of the decree-holder. His order was accord-

MAWAGER OF ATTACHED PRO

PERT Y— CO wcZfi.

ingly set aside by the High Court, as well as a aubse
queat order allowing the sale of other properties at-
tached, which properties were placed along with the
other in the hands of the manager. Huree Stjnkuf
MooKERJEE V. Jooendro Coomar Mooker.iee

19 w. R. ee

24. Death of manager — Biscre

lion of Courts as to renewing managership. When
a Judge, on the death of a manager appointed unde)
Act VIII of 1 859, s. 243, re\aewed the progress made
and finding that, under such management, the d(
cree was not likely to be satisSed for a very long timi
directed execution to proceed against the estate :-
Held, that his discretion had been properly exerciset
Doobga Dutt Singh v. Bunwaree Lall Sahoo
25 W. R. E
MANAIKATS.

See Tanjore Custom.

I. L. R. 27 Mad. I

MANDAMUS.

See Calcutta Municipal Act, 1863,
151 . . . 8B. L. R.4J

See Lease . I. L. R. 36 Calc. 2'

See Rules of High Court, Calcutta.

8 B. L. R. 4;
See Specific Relief Act.

I. L. R. 31 Bom. 3

action for —

See Calcutta Corporation.

I. L. R. 36 Calc. 6

order absolute for-

esee Letters Patent, High Court, ol. .
8 B. L. R. 4}

— power of High Court to issue-
See Transfer of Criminal Case — Ge -
BAL Cases . I. L. R. 2 Calc. 2}

1. Ground for issue of wriil-

Criminnl charge in respect of civil suit pendinir
Biity of Magistrate. A mandamus will not isle
to compel a Magistrate to proceed with a crimi»l
charge in respect of any matter involved in, or afftt-
ing the merits of, a civil suit still pending, 'j*
proper course for a Magistrate to pursue in sue »
case is not to dismiss the summons, but to adjc
the hearing'pendins; the decision of the Court in
civil action. Queen v. Clarke

1 Ind. Jur. O. S. ,^7

2. Discretion \of

Magistrate to refuse to proceed with criminal cn^
j)ending civil suit. 'Where a Magistrate has, inbe
exercise of his discretion, refused to proceed wil *
criminal charge pending a civil action in respe(!<^
the matter out of which the charge arose, a mat**
mus will not be granted to compel the hearioof
the charge. Ex parte Vabadarajulu Nayudo^

1 Madpw

( 8145 )

DIGEST OF CASES.

( 8146 )

MANDAMUS— coH<(/.

3^ ^ Magistrate find-

ng evidence does not amount to offence charged —
'^rror of law. A charge was made against the
lecused of iisinEr criminal force under s. 141 of the
'enal Code. The Police Magistrate heard the eviden-
•e for the prosecution, and, without disbelieving it,
lecided that it did not amount to the offence
■barged. Held, that, assuming that an error of law
lad been committed, the High Court had no power
0 issue a mandamus to the Magistrate to commit
he accused. It was not a case where the JNIagis-
rate had declined jurisdiction : he had exercised
lis j'lrisdiction and heard the rase. E:mpress v.
iASPER . . I. li. B. 2 Calc. 278

4. '■ Beng. Act VI of

S/55, «. 180 — Duties of Justices of Peace for Town
: Calcutta — Siipplying tanks for water. Under
.; 18 of Bengal Act VI of 186;}, the Justices of the
*eaoe are required to keep up and maintain the
xisting tanks, reservoirs, etc., vested in them ; or to
ubstitute a new tank, reservoir, etc., for any
xisting tank, reservoir, etc., i.e., new works of a
ike kind, each for each, in place of the old. There-
Dte, where the Justices had closed a tank for the
"urpose of constructing in its place a different means
f water-supply, a mandamus was issued directing
lie Justices to maintain the tank and supply it with
■ 'ater, or to substitute another tank in its place and
upply that with water. Queen v. Justices of the
'eace fob Town of Calcutta

2 Ind. Jur. N. S. 182

5. flatter concern-

ng revenue — License to sell liquor — Jurisdiction of

Ugh Court— Act XI of 1S49, s. 9— Beng. Act III

\ 1873, s. 1—21 Geo. Ill, c. 70, s. 8. Under Act

:i of 1849, s. n, as amended by Bengal Act III

■f 1873, s. 1, whenever a license is granted for

ne retail sale of intoxicating liquors, the Collector is

■■*Viorized to demand " such fee, tax, or duty as

from time to time be fixed with the sanction of

Board of Revenue, or a fee, tax, or duty, adjust-

1 or regulated in such manner and in accordance

itb such rules as the Board of Revenue may pre-

'^ribp." The Board of Revenue having notified that

! ir licenses for the year endinc; March 31st, 1874,

Id be put up to public auction, certain licensed

; Mr vendors moved the High Court for a man-

,imus to compel the Board of Revenue to issue rxiles

ireacribing the fee payable for license-. Held, that

If matter wholly related to the revenue, and there-

. by 21 Geo". III. c. 70, s. 8, the High Court

: no jurisdiction. In the matter of Audhur

■ NDRA Shaw. In the matter of Act XI OF

' AS AMENDED BY BENGAL ACT III OF IS"*}

11 B. L. B. 250

■"'. . Company — En-

■ment of director's right — Potcer of High Court.

High Court has jurisdiction to enforce by

udamns the right of persons duly elected direct-

- of a joint-stock company to exercise the func-

'T! of director of such company, if such rights are

rfered with by the company acting throuah its

T directors. 'Semhle : That the Court will not

MANDAMUS-con/<^.

refuse to interfere by mandamus in such a case
merely because the office of a director is not a per-
manent office, or because a director can be removed
from his office by a special resolution of the share-
holders, but, in a proper case, will restore him to his
legal position. Meaning of the words " casual
vacancy " considered. /» re The Albert Mills
Company. Nasarvanji Aspandiarji '■. Shivji
Manikbhai .... 9 Bom. 438

7. ^ Refusal hy com-
pany to register transfer of shares — Transfer signed
hy Judge of High Court — Civil Procedure Code,
1859, s. 267. Where a company refused to register
a transfer of shares purchased by an execution-cre-
ditor, on the ground that no share certificate had
been produced, but the sale had been confirmed
and transfer signed by a Judge of the High Court
under Act Vllf of 18.59, s. 267,' a writ of mandamus
was directed to issue out of the Court, ordering the
company to register the transfer of such shares,
and to issue fresh share certificates in respect of
them. Queen v. East Indian Railway Company
Bourke O. C. 395 : 1 Ind. Jur. N. S. 258

8. Writ to compel

refjistrar to register transfer of ship. A mandamus
will lie to compel the registrar to register the trans-
fer of a ship sold in execution of decree ; but where
the form of transfer was not as it should have been
but quite irregular, having reference to the Merchant
Shipping Act^ the Court "refused to issue a manda-
mus. In the matter of the ship " Shafi Cal-
lander " . . . 1 Ind. Jur. N. S. 263

Small Cause Court,

Calcutta. A mandamus lies from the High Court

to the Small Cause Court to compel it to act in

accordance with law. in re Toolsee Doss Seal

2 Ind. Jur. N. S. 133 : 7 W. E. 228

10. Power of High

Court over Small Cause Court. The High Court
has no jurisdiction to compel a Court of Small
Causes to re-hear a suit dismissed by the latter Court
on the ground of res judicata. Brommo Roof
GossALS V. Anund ;Moyee Debia . 7 "W. B. 316

11_ Beturn to writ — Sufficiency

of— Land Acquisition Act. 17 of lSo7. By Act
VI of 1857, s. 2 (for the acquisition of land for
public purposes), it is enacted that. " wherever it
appears to the Local Government that any land is
required to be taken by Government at the public
expense for a public purpose, a declaration shall bo
made to that effect, under the signature of a Secre-
tary to the Government, or of some officer duly
authorized to certify the orders of Government,"
etc. Therefore where the Justices of the Peace for
the Town of Calcutta were called upon by a writ of
mandamus issued out of the High Court at Calcutta
to " continue and maintain the existing Wellington
Square tank as a public tank and to cause the same
to be supplied with water, or forthwith to substitute
another such public tank." etc., and they returned
that, by a notification published in the Calcutta
Gazette on the 5th day of March instant, under the

( 8147 )

DIGEST OF CASES,

( 8148 )

mANDAMTJS—contd.

provisions of Act VI of 1857 of the Legislative Coun-
cil of India, it was notified that, " Whereas it ap-
peared to the Honourable the Lieutenant-Governor
of Bengal that land was required to be taken by
Government for a public purpose, viz., for the Cal-
cutta Water- Works, it was thereby declared that
for the above purpose a public tank and square
known as Wellington Square, etc., was required,"
and proceeded to justify under this notification, etc. :
— Held, that the return was bad. Reg, v. Justices
OF THE Peace for the Town of Calcutta

2 Ind. Jur. W. S. 24

12. Pleading— De-
murrer. The prosecutor could not, in India, both
plead and demur to a return to a writ of mandamus
without first obtaining leave of the Court. Reg.
V. East Indian Railway Company

1 Ind. Jur. N. S. 244

13. Corporation —

Bank of Bombay — Shareholders' register — Share-
holders'' right to inspect and take extracts — Special
interest and definite object, necessary — Suit for de-
claration of right to inspect, in the nature of applica-
tion for writ of mandamus — Conditions on which
relief can he given. A suit brought against the
Bank of Bombay by a shareholder for a declaration
that he is entitled to inspect the register of share-
holders and to copy and take extracts from such
register is, in its nature, though not in its form,
somewhat of the character of an application for a
writ of mandamus, and the principles regvilating
the issue of that prerogative writ should apply to a
great extent to the granting of the relief prayed
for in such a suit. A writ of mandamus will not be
allowed to issue, unless the applicant shows clearly
that he has the specific legal right, to enforce which
he asks for the interference of the Court, that he has
claimed to exercise that right and none other and
that his claim has been refused. When, therefore,
before the suit, the plaintiff claimed an absolute
right to inspect and take extracts from the Bank's
register of shareholders — to which he was not
entitled — and was refused, but in the suit claimed
a more qualified or restricted right : — Held, that the
suit could not succeed. The right to inspect the
documents of a corporation, which at common law
belongs to every member of such corporation, is not
an absolute right, but is confined to cases where the
member of the corporation has in view some de-
finite right or object of his own and to those docu-
ments, which would tend to illustrate such right or
object. AVhere it appeared that the plaintiff had
no special interest in any of the matters he com-
plained of or any interest other than or different
from that of each member of the corpora.tion and
had no definite right or object of his own to aid or
serve in asking for inspection of the register or
right or object which the register would illustrate,
but his object was to obtain the inspection in order
to communicate with the shareholders with the view
of securing their help in bringing about an improve-
ment in the administration of the corporation's
affairs : — Held, that no relief could be granted to the

MANDAMUS— conc?rf.

plaintiff. Bex v. Merchant Tailors Co., 2 B. & A

115, followed. Bank of Bombay v. Sulema

SoMJi(1908) . . I. li. E. 32 Bom. 46

s.c. 12 C. W. N. 82

L. R. 35 I. A. la

14.

AHorneyship e.

amination — Board of Examiners, discretion of-
Mandamus — Jurisdiction of the Court to interfere-
Letters Patent, 1865, els. 9 & 10— Specific Relief A
(I of 1877), s. 45— Rules of the High Court, Nc
111 to 118 and 132. Semble : The Court has i.
jurisdiction to interfere with the discretion of t!'
Board of Examiners and cannot, where there
a discretion imposed on any body, issue a writ j
mandamus to compel that body to exercise th
discretion in any particular way, but can or^
compel the exercise of that discretion in a mam/
fair, cardid and unprejudiced and not arbitrarj
capricious or biased, much less warped by reser
ment or personal dislike. Per Woodroffe, J.
The Court cannot dispense with the production
the certificate mentioned in Rule No. 116 oft
Original Side of the High Court. The Court w;
not interfere with the conscientious exercise by t
examiners of the discretion which the Court li|
confided in them. In the matter of Purxa Cha
DRA Dutt (1908) . I. li. K. 35 Cale. 9:

s.c. 12 C. W. N. 8'

MANDATORY IW JUNCTION.

See Injunction.

See Civil Pboceduee Code, 1882, s. 5'
I. L. R. 27 AIL er

See Easement . I. L. R. 35 Cale. 61.

See Injunction — Continuing Nuisancj
I. L. R. 31 Cale. 9-1
See Nuisance . I. L. R. 31 All. 4l
See Specific Relief Act, s. 55.

I. L. R. 31 Cale. 9

See Trespasser . I. L. R. 28 Bom.

1. • Specific relit

Mandatory injunction — Description of Court — -
junction refused upon unsubstantial grouty
In a suit by co-sharers for demolition of a build e
as having been recently erected without their c
sent on common land by another co-sharer the d
found that the building had been erected as allf
by the iilaintiffs, but refused to grant thertji
mandatory injunction upon the ground that " k
area was reclaimed by the appellant, defendaL
and that others (the plaintiffs included), who he
done the same, have been allowed to build on ^
areas thus reclaimed without any objection, Jd
that no special damage was done." Held, that Is
was not a valid reason for refusing to grant a mal-
atory injunction ; and that such refusal was ut*
the circumstances a good ground of appeal witB
the meaning of s. 584 of the^Code of Civil Procedp-
Ram Bahadur Pal v. Ram Shankar Prasad ^
(1905). . . . I. L. R. 27 AIL <|»

{ 8149 )

DIGEST OF CASES.

( 8150 )

[ANDATORY INJUNCTION— concW.

Ancient lights.

tslrtiction of — Injringement — Nuisance — Acquies-
•nee — Decree for damages — Mandatory injunction.
n obstruction to light and air must amount to a
lisance, to be an actionable infringement. AVhere
le whole of the direct light, which formerly came
. the plaintiff's building, was taken away by the
ifendant's new building, it is no defence" that the
nount of the reflected ITght, which now comes to
e plaintiff's premises, is sufficient for the ordinary
er thereof. \A'here there has been such a sub-
antial diminution of light as to amount to a nui-
nce, evidence that the plaintiff's office has more
;ht left than many other offices in Calcutta or
at the light coming to the plaintiff's premises is
fficient for business purposes, or that the plaintiff
■Ud by making internal alterations improve the
;. t coming thereto, is not relevant. Colls v. Home
d Colonial Stores, Limited, [1904] A. C. 179,
llowed. Inasmuch as the plaintiff was shown
:e plans of the proposed new building in May
107 and no proceedings were instituted, until the
th September 1907, when the defendant's building
•d reached a height of 30 ft., and as on that date
rmission was given to the defendant to so on
lilding at his own risk, that the defendant had
arly completed his building at a very large cost
• the date of hearing of this suit in January 1908,
iien the building had reached a height of 70 it., and
the plaintiff's building was a small old-fashioned
use, which in the ordinary course would in a few
ars be pulled down and rebuilt -.—Held, that
e proper remedy would be a decree for damages
d not a mandatory injunction to demolish the
fendant's new building. Axath Nath Deb v.
J^TAUN (1908) . . I. L. E. 35 Cale. 661

ANORIAIi DUES.

See Custom .
ANUFACTURE.

See Saltpetre .

I. L. R. 1 All. 440

I. L. R. 36 Calc. 267

ANUFACTURER.

See Trade-mark . I. L. R. 35 Cale. 311
APILLAS.

See Malabar Law — Custom.

I. L. R. 15 Mad. 60
See Malabar Law — Joint Family.

I. li. R. 15 Mad. 19
I. li. R. 17 Mad. 69
See Malabar Law — Maintenance.

I. L. R. 6 Mad. 259

adoption of Hindu law — Presxmp-

i» as to joint property. Although Mapillas in
lilabar ordinarily follow the Hindu custom of hold-
' f^imily property undivided, yet, as they are not
' t to the same personal law as the " Hindus,
claims cannot be governed by the legal pre-
Jiplion of joint ownership. AmmVtti i'.Kunji
'5^1 .... I. L. R. 8 Mad. 452

MAPS.

.See Evidence — Civil Case-S — Maps.

inspection of—

See Chur Lands . 6 B. L. R. 677

13 Moo. 1. A. 607

MARGINAL NOTES TO ACTS.

See Statutes, Construction of.

I. L. R. 20 Calc. 609

I. L. R. 23 Calc. 55

I. L. R. 25 Calc. 858

MARINE INSURANCE.

See Insurance.

1- — Policy of insur-
ance— Memorandum in a policy — Writte7i conditions
— Printed conditions — Particular average loss —
Stranding of the ship. The plaintiffs shipped cer-
tain goods from Cochin and Calicut for carriage to
Karachi by a craft. The goods were covered by
three policies of marine insurance. The three
policies were in almost identical terras with this
difference that the following words, which occurred
in the body of the policy, were printed on one of
them and written on the other two : " Warranted
free from the particular average, unless the vessel
be sunk or burnt." The memorandum at the foot,
after enumerating certain articles, proceeded ;
" All other goods free from average under three
per cent., unless general or occasioned by the
ship's being stranded." And then there was added
a note in Gujarati, which as translated ran :
" Dhanji Madat Rahman Nakhwa Osman from the
seaport town of Cochin and the seaport town of
Calicut up to arrival at the seaport town of Karachi
(insurance) on the goods to be without damage —
loss on account of damage is to be borne by the
owner of the goods." The craft, in which the goods
were, was stranded and did not sink, but tlie goods
damaged were over three per cent. The plaintiff
thereupon sued the underwriters on the three poli-
cies in respect of damage to goods. Held, that, on
the true construction of the policies, the defend*
ants were not liable for the particular average loss
occasioned by the ship's being stranded. Held^
also, that the office of a memorandum in a'policy
ordinarily is to limit, not to impose, liability,
so that it would be contrary to one's e.xpectatioa
that it should have the operation of creating a lia-
bility, where none apart from it existed. Hcld^
further, that even if the memorandum could be
regarded as capable of imposing a liability that
would not otherwise exist, still applying the doctrine
of Robertson v. French, 4 East loo ; Dudgeon v.
Pembroke, 2 A pp. Ca^. 2S4 ; Ohtnn v. Margit-on
cfc Co., [1S93] A. C. .351 ; Gumm v. Tyrie, 33
L. J. Q. B. 97 ; and Beier v. Chhotalal, H Bom. L. R.
94^ ; the memorandum did not create a liability,
which was expressly exempted in the Ixnly of tho
policy, and thus was never undertaken. Haji
H.\suM V. Chunilal (1905) I. L. R. 29 Bom. 360

2. Inland Naviga-
tion— Construction of policy — Warranty — Coiuiition

8151 )

DIGEST OF CASES.

( 8152 )

MARINE INSURANCE— co«/(Z.
precedent — Impossibility of performance — Exception
from risk — Onus probandi — Waiver — '^3Ionth,^'
meaning of, in a contract — ''Lunar Month " —
General Clauses Act (X of 1S97), s. 3 (33)— Limita-
tion Act (XV of 1S77), s. 25. A policy of insurance
covering a cargo of jute on the voyage from Ghiur
to Calcutta against the adventures and perils of
rivers and inland navigation including fire risks,
contained, inter alia, the following conditions and
warranties : — " It is further warranted : — 2. That
the risk of loss or damage by fire is not insured
hereby unless expressly so stated in writing hereon,
in which case such fire risk shall be subject to the
following additional conditions : — (a) Any loss
occasioned by smoking or cooking having been car-
ried on in the said boat shall not be recoverable
hereunder. 8. That no smoking nor cooking shall
be carried on in the said boat, but in a dinghy
provided for the purpose. 9. That in the event of
loss : — (a) The Manji or Charandar must report
to the nearest Police Station within 24 hours and
must state that the cargo is insured. (/) It is
furthermore hereby expressly provided, that no suit
or action of any kind against the said Company
for the recovery of any claim upon, under or by
virtue of this policy, shall be sustainable, in any
Court of law or equity unless such suit or action
shall be commenced within the term of six months
next after any loss or damage shall occur ; and in
case any such suit or action shall be commenced
against the said Company after the expiration of
six months next after such loss or damage shall
have occurred, the lapse of time shall be taken and
deemed as conclusive evidence against the validity
of the claim thereby so attempted to be enforced."
In an action on the policy instituted by the assured,
it was alleged in the plaint, which was filed on the
I5th April 1907, that the cargo was destroyed by
fire on the 14th October 1906. Held, that the term
"warranty " as used in a policy of Marine Insurance
is used to denote two difierent kinds of conditions :
(i) a condition to be performed by the assured, and
(ii) an exception from or limitation on the general
words of the policy. In the first case the war-
ranty is a condition precedent to the policy, whe-
ther it be precedent to the effectual making of
the policy, or precedent to the accrual of the right
to sue thereon or whether it declares the events
in which forfeiture ensues, or deals with the mode of
settling disputes, or limits the period for bringing
a claim ; in all .such cases, whether the conditions be
material to the risk or not, they must, unless waived,
be fulfilled with the most scrupulous exactness ;
and if not so fulfilled, there is a breach of' an express
stipulation which is one of the essential terms of the
contract and the insurer is discharged from liability
as from the date of the breach of warranty : the
assured mupt prove that he has complied •svith all
such warranties as being conditions precedent to
the policy attaching, or that the performance
thereof has been effectually waived. Pawson v.
Walton, 2 Cowp. 7S5, Thomson v. Weems, L. R.
9 App.Cns. 671, Barnard v.Faber,[18'/6] I. Q. B.
340, referred to. The warranty in clause 2 (a) was
aa exception from the risk which the insurers were

MARINE INSURANCE— concM.
willing to undertake, and under it the onus of pre
ing that the cargo was destroyed by fire, caused
cooking or smoking would lie on them. Boyd
Dubois, 3 Camp. 133, referred to. Clause 8 \^
a condition precedent to the liability of the insurs
under the policy, and the onus of provinL' comr
ance was on the assured. Clause 9 (a) was simila •
a condition precedent : the fact that the conditi..
might be impossible of fulfilment could not afiii
the liability. Worsley v. Wood, 6 T. B. 710, a .
Law v. George Nnines, 31 Sc. L. R. 8S8, referred ,
Notwithstanding the provisions of the ,Genei
Clauses Act and the Indian Limitation Act, 1;
term " month " in a contract means, in India i
in England, " lunar month " and not ''calem:
month." Simpson \. Margetson, 17 L. J. Q. B. ;
Turner v. Barlow, 3 F. cfc F. 946 ; Bruner v. Mo<,
[1904] 1 Ch. 305 ; Hart v. Middleton, 2C. & E \
referred to. Clause 9 (/) was a condition preced .;
and had not been complied with. Semhle : E^ i
if the term " month " in the policy meant" calea r
month," the plaintiff was out of time. Radcle
V. Bartholomew, {1892} 1 Q. B. 161, referred .
South British Fire and Marine Insurance ( .
V. Brojo Nath Shaha (1909)

I. L. R. 36 Calc. ,'8
MARITIME. LIEN.

See Admiralty- or Vice-Admiraii'
Jurisdiction I. L. R. 22 Calc' 42

MARKET.

See Bombay Municipal Act.

I, L. R. 30 Bom. A

See Madras 'District MuNicrPAi^nis
Act, ss. 191, 197.

I. L. R. 29 Mad :|5

See Joint Trial . 11 C. W. N. i: 8

See Madras District Municipaliss

Act, s. 198 . I. L. R. 10 Mad. 6

license for —

See Bengal Municipal Act, 1884, s. .7.
I. L. R. 20 Calc. H

1. RigU of zain-

dar to establish a market on his own land — RegulcfM
No. XXVII of 1793, Regulation No. VII of 18l\ «•
9. There is no legal objection to the holdinfay
any person of a " hat " or market whenever ind
wherever he may please, provided that he doi\BO
on his own land and in such a way as not top a
nuisance to neighbouring landholders who Ive
equal rights with him. Kedaraath v. Raghujiht
N.-W. H.C. 104; Sheikh Bisharut Ally v. iM
Misser, N.-W. H.C. 40 ; Metta Sahoo v. SM
Surwur Ali, 14 S. D. A. N.-W. P. 439 ; and Bl)»^
Chowdhree v. The Collector of Jaunpore, I]W.
H. C. 271, referred to. Sukhdeo PRASi «•
NiHAL Ghand (1907) . I. Ii. R. 29 All.|40

2. ; Rights of fi^e^

of market — Foreign goods, sale of — Law for caTit*g
on of a market. In this country there is no s]Pi*l
law for regulating the establishment and the crj'

8153 )

DIGEST OF CASES.

8154

iIARKET-

})icld.

ng on of a market. The owner of land may estab-
sh a market wherever on his own land and when-
vei he desires to do, provided he does not commit
n offence involving disturbance of public peace by
stablishing the market close to another existing
larket. The proprietor of a market may regulate
IP sales and the condu©t of stall-keepers provided
is conduct does not disturb public tranquillity, or
B does not commit an oi?ence punishable by law.
he proprietor has the right to prevent itinerant
.all-keepers, bat not permanent stall-keepers, from
piling any article he may choose to prevent the
lie of. Baj Kiimar Chuckerbutfy v. The Emperor,
I C. W. N. 2S, followed. Itinerant stall-keepers,
ho are mere licensees, are entirely under the con-
o\ of the owner of the market. These rights of
, . proprietor can be exercised by the ijaradar of the
arket during the term of his ijarah. Where the
iradar of a market with a view to prevent the sale
; foreign articles used force and caused hurt to
■rtain itinerant stall-keepers -.-—Held, that the
\radar exceeded his right under the law and was
inishable. But he could not be bound down to
•ep the peace, as an order under s. lOG, Criminal
•ocedure Code, would practically prevent him from
ercising his legal rights. Nanda Kxtmab Sikkar
The Emperor (1907) . . 11 C. W. TS. 1128

:aiiket rate.

•See Damages — Measure akd Assessjient

OF Damages — Breach of Contract.
See Evidence — Civil Cases — Miscella-
neous Documents— Market Rate.

I. L. R. 10 Calc. 565
ARKET VALUE.

See Calcutta ]\Iunicipal Act.

14 C. W. N. 289
See Compensation.

I. L. R. 34 Calc. 599
9 C. W. N". 655

of land—

See Land Acquisition Act, 1894, s. 2.3.

I. L, R. 33 Bom. 483
13 C. W. N. 1046
Valuation — Mode of

MARRIAGE— con^f/.

ition when no recent sales — Oompensation —
/ Acquisition Act (Z of 1894), s. IS. Tn cases
" the valuation of land cannot be based on
• the property was producing at the time of
lotice of acquisition, and where there have been
.ent sales of the land to guide the Court, the
x't value must be determined by sales of
1 ir land in the neighbourhood. In the matter of
•\i Tar Mahomed (1908)

I. L. R. 33 Bom. 325
ARRIAGE.

See Bigamy.

iSee Consideration . 2 Mad. 128

See Hindu Law — Inheritance — Di-
vesting of. Exclusion from, and
Forfeiture of, Inheritance — Mab-

RIAQE.

medans —

See Hindu Law —
Marriage ;
W 1 D o w — Disqualifications — Re-

MARRI.\GE.

See Hindu L.iw . 10 C. W. N. 338
I. Ii. R. 28 All. 458

See Jurisdiction of Civil Court —
Marriages.

See Mahomed AN Law.

I. Ii. R. 98 All. 496
I. L. R. 36 Calc. 23

See Mahomed AN Law — Marriage.
-See Parsis . . 3 Bom. A. C. 113
I. L. R. 11 Bom. 1
I. L. E. 13 Bom. 302
I. L. R. 17 Bom. 146
I. L. R. 2? Bom. 430
I. L. R. 23 Bom. 279

— agreements or contracts concern-
ing—
See Contract Act, s. 23— Tlleg.\l Con-
tracts— Against Public Poltcv.

I. L. R. 23 All. 495

11 B. L. R, 129

22 W. R. 517

25 W. R. 32

I. Ii. R. 10 Calc. 1054

I. Ii. R. 10 Bom. 152

I. Ii. R. 17 Mad. 9

I. Ii. R. 13 Bom. 126 ; 131

I. Ii. R. 13 Mad. 83

I. Ii. R. 16 Bom. 673

I, Ii. R. 22 Bom. 658

See Hindu Law — Husband and Wife.

I. Ii. R. 28 Calc. 751

See Mahomedan Law.

I. L. R. 36 Calc. 23

See Small Cause Court, Presidencv
TowNS — Jurisdiction — Breach op
Promise of Marriage.

I. L. R. 24 Mad. 652

See Specific Perfokm.vnce— Scecial

C\SES . . 7 Bom. O. C. 122

5 N. W. 102

L Ii. R. 1 Calc. 74

asura form—

See Hindu Law— ^Iarriaoe.

I, L. R. 33 Bom. 433

between Christians and Maho-

by fraud—

See ^UHOMEDAN Law--M.^rrl.ok.^^_ ^^^

( 8155 )

DIGEST OF CASES.

( 8156 )

IS.A'R'RlAG'E—contd.

MARRIAGE— confd.

Buddhist laws of-

See BuKMA Civil Courts Act, 1875, s. 4.

I. L. R. 10 Calc. 777

L. R. 11 I. A. 109

I. L. R. 39 Calc. 492

— consummation of—

See Mahomedan Law.

I. L. R. 30 Bom. 122

__ dissolution of—

See Costs — Special Cases — Divorce.

I. L. R. 28 Calc. 84

See Divorce Act.
— effect of—

See Married Women's Property Act.

See Succession Act, s. 4.

I. L. R. 23 Calc. 506

— expenses of —
See Hindu Law — Alienation — Aliena-

tion BY Mother.

I. li. R. 18 All. 474

See Hindu Law — Inheritance — Imparti-
ble Property I. L. R. 16 Mad. 54

intermarriage between Panchals

and Sudras-

See Hindu Law — Marriage.

I. L. R. 33 Bom. 693

lawful polygamous —

^ee Succession Act, s. 56.

I. L. R. 1 Calc. 148

nullity of—

See Divorce Act, ss. 4 and 18.

13 B. L. R. 109
See Husband and Wife.

I. L. R. 21 Bom. 77

presumption of—

See jMahomedan Law — Acknowledg-
ment.

See Penal Code, s. 498.

8 B. L. R. Ap. 63

proof of—

See Adultery.
See Bigamy.

See Divorce Act, s. 14.

I. Ii. R. 16 Mad, 455
See Penal Code, s. 498.

LL. R. 9 Mad. 9
I. L. R. 20 All. 166
iSee Restitution of Conjugal Rights.

I. L. R. 28 Calc. 37
See Will — Construction.

I. L. R. 13 Mad. 379

— registration of—

See Evidence— Civil Cases— Miscei ,
NEOUS Documents — Marriages, F;
istration of. I. L. R. 10 Calc. u

— re-marriage —

See Hindu Law — Inheritance— i

vesting of. Exclusion from.

Forfeiture of, Inheritance— ;^ i-

riage . I. L. R. 19 Calc. ii

I. L. R. 22 Calc. f i

I. L. R. 22 Bom. i

See Jurisdiction of Civil Cofj-

Caste . . I. L. R. 13 Mad. )1

unauthorized solemnization ■

See Marriage Act, 1872, s. 68.

I. L. R. 14 Mad. li

I. Ii. R. 17 Mad. a:

I. L. R. 18 Mad. 3(

I. L. R. 20 Macli

validity of —

/See Adultery . . 7C. W. N.IJ
See High Court, Jurisdiction ■ —
Bombay — Civil.

I. L. R. 16Bom.3e

See Mahomedan Law — Acknowlig-

ment . . I. L. R. 21 Calc. 38

Ii. R. 21 1. .556

with deceased wife's sister—

See Marriage . . . 2 Hyd35
I. -L. R. 12 Calc. 06
I. L. R. 32 Calc 87
I. L. R. 35 Calc SI

1. — Adoptic by

Christians of Mahomedan religion for purpo oj
marriage— Bigamy. Quare : Whether a mange,
according to Mahomedan rules, between a inaied
Christian man and a Christian woman, both of vJm
became Mahomedans in order to eiiect the mariige,
is valid. Skixner v. Orde

10 B. Ii. R. 125 : 14 Moo. 1. A,t09
17 W.Ii77

2. Lawofdomi' —

Law of place of celebration. Semble : A mn-
celebrated in accordance with the law of tht-
cUe of the parties may be valid, although it ,
be invalid by the law of the place where the ma
was celebrated. Gasper (falsely called Gonsa
V. Gonsalves . . . 13B. LE-"

3. — Marriagf^

deceased wife's sister — Stat. -5 & 6 Wtn. IV, j''/-
The marriage of an East Indian, domicilj in
Calcutta, with the sister of his deceased wife, i\aot
void under 5 & 6 Will. IV, cap. 54. Das M:jCES
V. Cones 2 Hy< 65

4. Marriaf of

Native Christian converts. The question as 1 '"^^
validity of the marriage of Native Christian coifrts
does not depend on the presence or otherwe of

( 8157 )

DIGEST OF CASES.

( 8158 )

•fSARRIAGB—contd.

.n ordained minister of religion. KristoMohun
.'HBISTIAN r. AXUNDA . . 16W. R.249

MARRIAGE-

".ovid.

Prohibited degrees

-Roman Catholics — East Indians — Customary law
-Dispensation, proof of — Presumption — Divorce
M (IV of 1S6!>), 5.S'. 19 and 63— Deceased wife's
ixter, marriage with. -In a suit for restitution of
■onjugal rights the parties were East Indians, and
t the time of the marriage, on 22nd July 1877,
were domiciled in British India, resident within the
imits of Calcutta, gnd members of the Roman
;atholic religion. The defence to the suit was that

previous marriage had, on 6th December 1871,
(oen performed between the respondent and the
letitioner's sister, and the respondent prayed that
.'le second marriage might be declared a nullity.

8 ceremony of 6th December 1871 had taken
I lace while the petitioner's sister was on her death-
,ed and in extremis, and had been celebrated in
ccordance with the rites of the Roman Catholic
I'hurch, and it was held both by the original Court
"nd on appeal to be a valid marriage. The first
curt (Cunningham, ,/.) held that the second
liarriage was null and void, on the ground that the
arties were within the prohibited degrees. Held,
n appeal (by Garth, C.J., and Wilson, J., while
jferring to a Full Bench the question " whether
■ 'ie second marriage was a valid marriage, or, on
lie other hand, was either void or voidable"), that
I was competent to the Court, in a suit for restitu-
(on of conjugal rights, to make a declaration of
.uUity of marriage if the respondent showed him-
'\i entitled to such relief. Held by the Full Bench :
he prohibited degrees m.entioned in s. 19 of the
bdian Divorce Act do not necessarily mean the
i?grees prohibited by the law of England. All
liat was known in respect of the parties to the
liarriage being that they were Roman Catholic
ubjects with Portuguese names, and it not having
l?en found whether they were of English or any
Jher European descent, or of native or mixed
iirentage :— ^eW, that the prohibited degrees for
lie parties to the marriage were not the degrees
•ohibited by the law of England, but those pro-
jbited by the customary law of the class to which
|iey belonged,— that is to say, the law of the
.**™*° Catholic Church as applied in this country.
jCW by the Division Bench (Garth, C.J., and
jttsON, J.), on the case being returned to it.
j here a man and a woman intend to become hus-
jwd and wife, and a ceremony of marriase is
Tformed between them by a clergvman oTmpa-
jnt to perform a valid marriage, the presumption
^Mvour of everythmg necessary to give validity to
ch mamage is one of very exceptional strength,
a unless rebutted by evidence strong, distinct,
OBlactory and conclusive, must prevail. Piers
! ^»er«, 2 H. L. C. 331, followed. Accordmg to the
'«- ot the Church of Rome, a dispensation from
'I'lper ecclesiastical authority is necessary to
f u-*'^ to a marriage between a man and the
^t his deceased wife. In this case the parties
l^p Koraan Catholics and intended to become
iwoand and wife, and a ceremony of marriage was

performed between them by a clergyman compe-
tent to perform a valid marriage. Held, that the
Court was bound to presume that a dispensation
necessary to remove the obstacle to the marriage
on the ground of affinity had been obtained. Lopez
^- T-o^'EZ • . . I. L. R. 12 Cale. 706

Suit for nullity ot

niarnage—Divorce Act (IV of 1869), ss. IS, 1 ) (2)—
Domicile of origin—Religious communion. Where
the petitioner, a member of the Church of England
came to India about the vear 1867, his domicile of
origin being then English, and in 1S71 married the
illegitimate sister (since deceased) of his second
wife, whom he subsequently married in 18S7, it
being uncertain what his domicile was at the date
of his first marriage -.—Held, in a suit for nullity 'of
mamage, that either the petitioner carried v.-it\i
him to India the laws as to capacity to marry by
which he was originally governed, or he was govern-
ed by tJie law of the class to which he belonged,
and that in either case the marriage could not be
supported. Lopez v. Lopez, I. L. K. 12 Calc. 706,
referred to and applied. Hilliard v. JIitchell
I. L. R. 17 Calc. 324

'• Personal status —

Christian marriage followed by Mahomedan fnarriage
— Bights of widow under Mahomedan law— Divorce.
In a suit to obtain a widow's share under Mahome-
dan law in the estate of the deceased, it was proved
that the plaintiff and deceased had been married in
1855 as professed Christians in a Church at Meerut ;
that subsequently, having reverted to Mahome-
danism, they ^\ere married a second time according
to Mahomedan law in nikah form, which second
marriage had not been dissolved by a ]k[ahomedan
divorce. In 1886 the husband died, leaving a will
excluding the \^-ife from all participation in his
estate. HeU. that the personal status of the de-
ceased being at the time of his death that of a
Mahomedan, and the plaintiH's personal status be-
ing that of his wife under the saniC law, she was
entitled to a share in his estate, notwithstanding his
will, which purported, but under ilahomedan law
M^as inoperative, to exclude her. Qucre .- Whether
in the case <if sp^mses, remainmg domiciled in
India, where religious creed affects the rights inci-
dental to marriage, such as that of divorce, a change
of religion made honestly after marriage with the
assent of both spouses, without any intent to com-
mit a fraud on the law, effects any change in those
rights. Skinner v. Skinner

I. L. R. 25 Calc. 537

L. R. 25 I. A. 34

2 C. W. N. 209

Suit by wile for

nullity of marriage — General and relatiie impotency
— Im-potency quoad'hanc — Parsi Marriage Act (XV
of IS-iO), s. 2S. In March 1882 the plaintiff and
defendant, Parsis, were married according to the
rites and ceremonies of their religion. In October
1882 the plaintiff attained puberty ; and for seven-
teen months from that time she lived with the
defendant in his parents' house ; but there was no

( 81

DIGEST OF CASES.

( 8160 )

MAnHlAG'E—contd.

consummation of the marriage. There was no phy-
sical defect in either plaintiii or defendant, nor any
unwillingness in the plaintiff to consummate the
marriage ; but the defendant had always enter-
tained such hatred and disgust for the plaintiff as to
result, in the opinion of the medical experts, in an
incurable impotency in the defendant as regards
the plaintiff. The delegates unanimously found,
on the evidence, that the consummation of this
marriage had from its commencement been
impossible ; because the defendant was, from a
physical cause, namely, impotency as regards the
plaintiff, unable to effect consummation. They
also found that there was no collusion or conni-
vance between the parties. Held, on this finding,
that such impotency quoad the plaintiff must
be regarded as one of the causes going to make
consummation of a marriage impossible under
s. 28 of Act XV of 1865, there being nothing in the
Act to suggest a contrary opinion. The observ-
ations of Dr. Lxishington and of Lord Watson in
Gv.M,L. B. 10 A. C. 171, a.sto impotency quoad
Jmnc and practical impossibility of consummation,
approved and followed. S. v. B.

I. L. R. 16 Bom. 639

9. Brahmo Samai —

Polygamij — Act III of 1872, s. 19. A marriage per-
formed in accordance with the rights of the Brahmo
Samaj is invalidated by the fact that either of the
parties thereto has a husband or wife by a previous
marriage alive. Sonaluxmi v. ViSHNtrpRASAD(1904)
I. L. R. 28 Bom. 597

10. Validity of mar-
riage— Roman Catholic of Indian domicile — Marriage
with deceased wife's sister — Nullity of marriage —
Domicile. The Courts in India will not disallow a
Roman Catholic of Indian domicile, who has ob-
tained the necessary dispensations, from marrying
his deceased wife's sister who, by the law of her own j
Church, may be incapable of contracting the mar- \
riage. The husband's capacity renders the mar-
riage valid in law. Lopez v. Lopez, I. L. R. 12
Calc. 706, referred to. Per Mitea, J. — In India
there is no enactment forbidding absolutely the
marriage of a domiciled British Indian subject with
his deceased wife's sister. In such a case the rule
to be applied is that of equity, justice and good con-
science, and for which the usages of the class, to
which the parties belong, may be looked to. Brook
V. Brook, 9 H. L. C. 193 ; In re Bozzclli's Settlement ;
Husey-Hunt v. Bozzelli, [1902] 1 Ch. 751. H. A. {
LtrcAS u. Theodoras Lucas (1905)

I. L. R. 32 Calc. 187 j
S.C. 9 C. W. N. 567 I

11. Practice — Peti-
tion, service of — Substituted service — Unreasonable
delay— Divorce Act (IV of 1869), ss. 14 and 50. The
practice of this Court as to service of petition on
the respondent is governed by what prevails in
the Matrimonial Courts in England. It is essen-
tial, in suits for dissolution of marriage, that the
petition of the plaintiff should be personally served
under s. 50 of the Indian Divorce Act on the re-
spondent or that sufficient notice of its contents

MARRIAGE— con<c^.

should be given to him. Unless satisfactory e:
planation is given for the long delay in presentir.
and prosecuting a petition, a Court is obliged t
refuse a decree for dissolution of marriage undc
s. 14 of the Divorce Act. Arabella Claeess
Eliza Mitter v. John Charles Mitter (1908)

12 C. W. K". 100

12. Presumption

marriage from cohabitation with habit and repute
Siamese Shan States — Presumption different ,
different countries — Proof of repute—Entry
" wife " in Consular Certificate of Nationality giv,
to British subjects in Siam — New point taken on a
peal. A domiciled Burman having a residence ai
a wife in Moulmein went on business to the Siame
Shan States, where he lived for many years w
the first appellant and died there leaving her a.
her son (by him), the second appellant, both
whom claimed a share of his property from 1
wife in Moulmein, who was his administratrix, >
the ground that a presumption of marriage arc'
from the above cohabitation with habit and repu
whereby she had acquired the status of a legi
mate wife. Held, that the habit and repu.
which alone is effective, must be habit and repi
of that particular status, which in the count-
in question was lawful marriage. Among Engl,
people open cohabitation without marriage is
uncommon that the fact of cohabitation in ma'
classes of society of itself sets up as a matter f
fact a repute of marriage. But that is not I;
case in countries where customs are diffenfc
and where there exist connexions between i
sexes not reprobated by opinion, but not constit -
ing marriage. Held, in the circumstances of, ii
evidence in this case, that there was no prooflf
repute, which required some body of neighboii,
or some sort of public, nor was there any tangi'e
evidence of the recognition of the first appellan.n
her quality of wife by people external to the hc!e
and independent of it. The only evidence point^g
to marriage was the use of the word " wife "y
some of the witnesses, which showed that ty
applied it to persons, whose status was not md-
monial. A certificate of nationality as a Brih
subject proposing to travel in Siam given to ie
deceased by the British Consulate was produce "
which the first appellant was described as
" wife " and another female relation as his " si
in-law," as to which it was contended that the
appellant could only be entitled to be so namt
it if by marriage she had acquired the decea
certified nationality. Held, that the certificate
not evidence of repute at all ; and any valui
might have had was taken away by the inserti'
the name of the sister-in-law, who on no thiy
was a British subject. The facts of the exist ce
of the lawful wife in Burma, who was ignorantfat
any such connexion existed between her hus'ind
and the first appellant, that polygamy thjgli
allowed in Siam was considered disreputable.ind
that concubinage was customary, were against,ny
such presumption of marriage. No presump^o^

( 8161 )

DIGEST OF CASES.

( 81 62 )

SLARRlAQIl—concld.

:herefore, arose that the first appellant had acquired
:he status of a wife. A contention that the second
ippellant, even if a valid marriage was not proved,
vas entitled by Burmese law to a share in his
ather's estate, not havinp; been raised in the plead-
ngs nor taken in the Courts below, was not enter-
ained bv the Judicial Committee on appeal. IMa
VCN Di\'. Ma Kix (1007) I. L. E. 35 Calc. 232
S.C. 12 C. W. N. 220 : L. R. 35 I. A. 41

13.

Nvllity of mnr-

iage — Deceased uufe'.s sister — Illegitimate child —
histody of the child — Maintenance. "Where a decree
)r nullity of marriage had been made on the ground
lat the petitioner was the sister of the deceased
'ife of the respondent ; — Held, that the child was the
>gitimate child of the petitioner and that she was
iiiitled, unless a strong case was made out to the
)ntrary, to the custody' of the child. Maintenance
,.r a child may be rightly and properly spent for
,ie purpose of maintaining a joint home for the
ifant and his or her parents, and an account of
lie amount allowed for maintenance will not be
dered so long as the infant is properly maintained.

OMWETSCH V. BOMWETSCH (1908)

I. L. R. 35 Calc. 381
ARRIAGE ACT (CHRISTIAN) V OP

s. 56 — Offence of solemnizing

'irriage — Celebration of marriage in Hindu form by
Wtt priest where one party is a Christian convert.
Hindu priest was charged with knowingly and
IfuUy solemnizing a marriage between two per-
'is, one of whom professed the Christian religion,
■i said priest not being duly authorized under s. 6
;Act V of 1865, an offence punishable under s. 56
'[the same Act. The Sessions Judge discharged
ti accused without trial on the ground that the
jiictment in question was inapplicable to the cele-
'|.tion of a marriage according to the Hindu form
1| a Hindu priest, though one of the contracting
l^-ties was a Christian "convert. Held, that this
Vw of the law was erroneous, and that the accused
> '"rimd facie liable under s. 56 of the Act.
vMous Case . . .6 Mad. Ap. 20

RIAGE ACT (XV OF 1872).
— ss. 5, 10, 12, 13. 38. 68, 70 and 73

'on authorized to perform marriages — Omission
O'jrmalities required, as notice, etc. S, an episco-
Py;ordained priest of the Syrian CJhurch, under
»-| jurisdiction of the Patriarch of Antioch,
*|mnized two marriages according to Roman
"lal without publishing or causing to be affixed
Hnotices of such marriages required by Part III
0 he Act. It was proved tha t S used the Roman
niU without the sanction of his Bishop, who was
k'^'^T by the Patriarch. Held, that S, having
jived episcopal ordination, was authorised to
^-nnize the marriages according to the rules,
eremonies and customs of his church, and

" ^^^^iiot shown that a marriage solemnized

^lie Roman ritual under the sanction of the

VOL, m.

MARRIAGE ACT (XV OF 1812. ,—contd,

s. 5 — concld.

Bishop of the Syrian Church was not solemnized
according to the rules, rites, ceremonies and customs
of the Syrian Church. Held, further, that Part III
of the Act only applies to ministers of religion
licensed under that Act and not to episcopally-
ordained persons. Caussavel v. Saurez

I. L. R. 19 Mad. 273

ss. 18 and 66— False declaration —

Penal Code (Art XLV of 1800), s. 10-3— Maxim,
' ignorantia juris no^h excusat." The maxim ignor-
antia juris non excusat cannot be applied to a decla-
ration, though in fact false, made under s. 18 of
Act XV of 1872, inasmuch as the declaration re-
quired by that section to be made is a declaration
as to the belief only of the person making it ; and
further, in order to entail the penal consequences
provided for by s. 66 of the said Act, such false
declaration must be made " intentionally." Queex-
Ejipeess v. RoBrs-soN . I. L, R. 16 All. 212

!• — ; — ^ s, 68 — Unauthorized marriage of

a Christian child — Persons professing Christian
religion. The accused, who was charged with hav-
ing committed an offence under the Indian Cliristian
Marriage Act, s. 68, was acquitted on its appearing
that the Christian whose marriage he purported to
solemnize was a child of the age of three years. The
child had been baptized, and her father was a Cliris-
tian. Held, that the child Mas a person professing
the Christian religion within tiie meaning of s. 3 of
the Indian Christian Marriage Act, and that the
acquittal was wrong. Queen- Empress v. Veeradu
I. L. R. 18 Mad. 230

2. " Solemtiize,^'

meaning of performance of marriage by unauthorized
person — Abetment. In the Indian Cliristian Marri-
age Act, s. 68, the word " solemnize " is equivalent
to the words " conduct, celebrate, or perform."
Therefore any unauthorized person, not being one of
the persons being married, who takes part in per-
forming a marriage, that is, in doing any act
supposed to be material to constitute the marriage,
is liable to be convicted under that section ; and a
charge of abetment is sustainable against the per-
sons being married. Queen- Empress v. Paul

I. L. E. 20 Mad. 12

3, and s. d^Marriage solemnized

by an unauthorized person — " Knowinghj " — Pre-
sence of a Marriage Registrar. The lay trustee of a
church in which the banns of marriage between
Christians had been published, solemnized a mar-
riage between them according to the rites of the
Church of England. The Marriage Registrar at-
tended the ceremony in a private and unofficial
capacitj'. The person who solemnized the marriage
was not of any of the classes of persons authorized
to solemnize a marriage in the absence of a Marriage
Registrar, and he was convicted of an offence under
Act XV of 1872, s. 68. Held, that the conviction
■was right. Queex-Empeess r. Fischer

I. li. R. 14 Mad. 342

12 D

( 8](

DIGEST OF CASES.

( 8164 }

MARRIAGE ACT {XV OF 1872)— cowcW.

s. 68 — concld.

Solemnization of

marriage under Hindu rites between a Native Chris-
tian and a Hindu by a person not authorized to per-
form marriages under s. 5 of the Act. A person who
performs a. ceremony of marriage according to
Hindu form between a Native Christian and a
Hindu commits an offence under s. 68 of Act XV of
1872, unless he is a ithorisel to solemnize marri-
ages under s. 5 of the Act. See Anonymous case, 6
Had Ap. 20. Queen-Empress v. Yohan

I. L. R. 17 Mad. 391

MARRIAGE PRESENTS.

. suit to recover —

See Contract — Alteration of Con-
tracts— Alteration by the Court.
13 B. L. R. Ap. 34

MARRIAGE SETTLEMENT.

See Contract . I. L. R. 29 All. 151
See Husband and Wife.

I. Ii. R. 10 Calc. 951
See Will — Construction.

I. L. R. 4 Calc. 514
order as to —

See Divorce Act, s. 40.

14 B. L. R. Ap. 6
Construction of settlement— yrw?*

funds. S, being entitled to personal estate by a
settlement executed upon her marriage with E,
vested it in trustees on terms which conferred upon
her an estate for her separate use for life, with re-
mainder, in case she should die in the lifetime of
her husband, to her children, share and share alike.
The settlement did not contain a power to invest in
the purchase of real estate. E died in the lifetime
of S, and a portion of the trust fund was invested
by the trustees in the purchase from *S' of real estate
vested in her as representative of E. S afterwards
married P, and during her second coverture a fur-
ther portion of the trust fund was, with the consent
of S, invested in the purchase of real estate. S
survived P, and died intestate, leaving a son and
daughter and the children of another daughter her
next of kin. Held, first, that the events contem-
plated by the settlement not having arisen, the
trust fund became the absolute property of S ; and,
seccondl;/, that the devolution of the trust fund was
to be governed by the state of its investment at
the time of her death, and that therefore so much
of it as was invested as above must descend as real
estate. Held, also, the parties being neither Maho-
medans nor Hindus, and tliough not, strictly speak-
ing, all of them European British subjects, yet hav-
ing all of them adopted the law which affects
European British subjects in India, the real estate,
whether situated within or without the local limits
°i. ^^^ jurisdiction of the Court, would descend to
the heir-at-law. Rigordi v. Smith

1 Ind. Jur, N. S. 290

MARRIED WOMAN.

See Adultery . I. L. R. 30 Calc. 91
See Guardian ad litem.

I. L. R. 29 All. 728

See Maintenance, Order of Crtmina

Court as to . I. L. R. 18 Bom. 46

See Married Women's Property Act.

See Minor — Representation of Mino

IN Suits . I. L. R. 17 Calc. 48:

I. Ii. R. 23 All, 45

. enticing away —

See Adultery . . 7 C. W. N. 14
See Compounding Offence.

I. L. R. 1 Mad, l'

See Penal Code, s. 498.

liability of_

See Succession Act, s. 4.

13 B. L. E.

property of—Civil Procedure Cc

{Act XIV of 1882), s. 266, and Small Cause Co^
RiiJr 220 — Attachment of married woman's propei
subject to restraint on anticipation — Transfer
Property Act [IV of 1882). s. 10, Married Wo'me)
Property Act (III of 1S74) s. 8— Property of m]-
ried woman subject to restraint on anticipation 4
attachable in execution of a decree under s. 8f
the Married Women's Property Act. The incoJ
of property belonging to a married woman subjfc
to a restraint on anticipation, accruing due after 3
date of a decree against such married womas
separate property under s. 8 of the Married Woitk a
Property Act, is not liable to attachment in exe(-
tion of such decree under s. 266 of the Code of C^l
Pro edure or under Rule 220 of the Rules of )e
Presidency Court of Small Causes. S. 8 of |e
Married Women's Property Act does not afiect le
doctrine of restraint on anticipation. Hippift
V. Stuart, I. L. E. 12 Calc. 522, dissented from, n
re Mantel and Mantel, I. L. E. 18 Mad. 19, ioHovl.
S. 10 of the Transfer of Property Act recogrps
and renders enforceable conditions in restrainpf
aoticipation and is not affected by s. 8 of the MarHi
Women's Property Act. A decree under s. H
the latter Act against the separate property |a
married woman cannot be considered as pa «
against property which she is restrained from ;
cipating. S. 266 of the Code of Civil Procedu
only a rule of procedure, and is not exhaustive,
cannot be construed as authorising the attachi
of property which, by the rule of substantive
embodied in s. 10 of the Transfer of Property ••
is incapable of being transferred or changed b}pe
beneficiary. Goudoin v. Vencatesa Mood.Ily
(1907) .... I. L. R. 30Mad.78

MARRIED WOMEN'S PROPERTY /3T
(III OF 1874).

See Succession Act *s. 4.

13 B. L. E. B3

( 8165 )

DIGEST OF CASES.

( 8l6d )

CARRIED WOMEN'S PROPERTY ACT
{III OF 1874)— fo«cW.
ss. 4, 7, and 8—

See Husband and Wife.

I. L. R. 4 Calc. 140
2 C. L. R. 4c}l
ss. 7 and 8~

iSee Husband and Wife.

I. L. R. 1 Calc. 285

— 8.8—

See Married Woman, property of.

I. L. R. 30 Mad. 378
See Parties — Parties to Suits — Hus-
band and Wife . 10 C. L. R. 536

Hiisband and wife

'tUement — Property settled on marrii "

and s. 9 — Restraint

anti-

e^ftion— Transfer of Property Act (IV of 1882), s. 10.
S' of Act III of 1874 extends to the sepa-
n property of a married woman subject to a
rtraint upon anticipation. S. 10 of the Transfer
ol'roperty Act merely excepts from the general
n, laid clown in that section the particular case of
a iarried woman, and does not give to a restraint
U]i anticipation any greater force than it had be-
fc the passing of the Act, but merely preserves to
it le effect it had previously, leaving the Married
V\nen'3 Property Act of 1874 and the decisions
oiji it untouched. Hippoi.ite v. Stuart

I. L. R. 12 Calc. 522

I Insolvency of

iihjiei woman — Property settled on her for separate

*S\ai,lwut power of anticipation, whether comprised

m\e vesting order or riot — Insolvency Act (11 <L- 12

'*], c. 21), s. Go. A creditor's right to be satisfied

ou.f the separate property of a married woman is,

'Bje case of post-nuptial debts, restricted to the

!"■' -rty as to which there is no restraint on antici-

: S. 8 of Act III of 1874 was not intended

a married woman the power of evading

^traint. Hippolite v. Stuart, I. L.E. 12 Calc.

rented from, in re Mantel

I. L. R. 18 Mad. 19

>^HALLING or SECURITIES.

^t ', MOKTG AG E Ma KSH ALLINO.

Sec Res Judicata.

I. li. R. 31 Calc. 95

UMAKKATAYAM LAW.

•S'te Malabar Law — Inheritance.

I. L. R. 27 Mad. 77

MARUMAKKATAYAM JjAW—concld.

Sepirate property.

woman,
iiar separate use and without power of anticipation
-''ower of married %voman to charge such jwoperty
xh payments of debts incurred subsequenth/ to mar-
rje. Held, that under s. 8 of Act III of 1874, a
1 tried woman has power to charge property settled
i!)n herself, for her separate use without power of
alcipation, with the payment of debts incurred
I her subsequently to her marriage, and such a
crge is valid and binding. Cursetji Pestonji

I'lACHAND V. RUSTOMJI DoSSABHOY

I. L. R. 11 Bom, 348

of member of tarwad lapses to the tarwad. On the
question whether the separate property of a member
of a tarwad lapses^to the tarwad or is inherited by
his tavazhi : Held per Sir Arnold ^\"nITE, C.J ., and
Abdur Raiimim, J. (Miller, J., dissc-ntinir), that
the separate property of a member of a tarwad
lapses on his death to the tarwad. Prr Miller,
J. — The separate property of a member r.f a tarwad
is inherited by his tavazhi. Knllati Kunju Mtnon
V. Palat Errachn Menon, 2 Mad. //. C. R. Vrl, rc^fer-
red to. GoviNDAN Nair v. Sankaran Xaip. ( HmOi
I. L. R. 32 Mad. 351

Validity of gift.

excluding male issue, to wife and daugliter — Rigid of
last surviving daughter — Con-strvction of gift. A
person governed by the Marumakkatayam law
executed a deed of gift in favour of his wife and
three daughters under which they and their female
descendants were to enjoy the properties heredi-
tarily, males being excluded. The last surviving
daughter made a gift of the properties to her own
female descendants. In a suit by the female des-
cendants of another daughter : — Held, that the
condition excluding males was invalid. That the
wife and daughters did not, on the construction of
the deed, take as joint tenants in the English .sense,
so as to vest the whole property in the last survivor
or as tenants in common. That the deed created a
sort of thavazhi which was not different from an
ordinary thavazhi in respect of descent so long as
there remained any female descendant of any of
the donees. That the last surviving daughter had
no interest which she could validly convey. Kun-

HAMINA V. KUNHAMBI (1908)

I. L. R. 32 Mad. 315

Gift to woman

governed by such law, effect of. A gift of property to
a woman governed by Marumakkatayam law and
to her children, by their father, does not of itself
constitute the mother and her cliildren a .separate
tarwad, but the donees take such property with
the incidents of tarwad property. Where the gift
is made by a Muhammadan husband governed by
Marumakkatavam law to his wife, who i.": al^o
Toverned by Marumakkatayam law, and to her
children, the property becomes tiie exclusive pro-
perty of the donees with the mcidents of tarwatl
property subject to Marumakkatayam law, and on
the death of the mother it does not pass to her
heir« under Hie :Muhammadan law. Pattathe

RUVATH PATnUMMA C. ^^ ^^'^i ^iL'^^^^^'^iV^^T OOfl

Haji (1907) . . . I. L- R- 31 Mad. 228

MARZ-UL-MAUT.

See Divorce . I- L- R. 30 Bom. 537
See MahomedanJLaw— tiiFT.

I. L.R. 31 Calc. 319
See Mahomedan Law— Marz-ul-maut.

D(alh of the kii.s-

hand before expiration of the perio,l of iddat —Hanaft-
Sunnis— Divorce Talak-ul-hain by one pronounce-

12 D 2

( 8167 )

DIGEST OF CASES.

( 8168 )

MAnZ-VL-MAVT—concld.

inent in the absence of the wife — Execution of talak-
nama in the presence of the Kazi — Communication of
the divorce to the wife — Mahomedan Law. In order
to establish Marz-ul-maut there must be present at
least three conditions : — (i) Proximate danger of
death, so that there is, as it is phrased, a preponder-
ance (ghaliba) of khauf or apprehension, that is that
at the given time death must be more probable
than life ; (ii) there must be some degree of sub-
jective apprehension of death in the mind of the
sick person : (iii) there must be some external in-
dicia, chief among which would be the inability to
attend to ordinary avocations. Where an irrevoc-
able divorce has been pronounced by a Mahomedan
husband in health, and the husband dies during the
period of the discarded wife's iddat, she has no
claim to inherit to the husband. Saeabai v.
Rabiabai (1905) . . I. L. B. 30 Bom. 537

MASONBY BUILDING.

permission to erect —

See Calcutta Corporation.

I. L. B. 36 Calc. 671

MASTEB AND SEBVANT— co«^7.

MASSES.

— bequest for performance of—

See Wn.L — Coxstructiox . 2 Hyde 65

2 B. L. B. O. C. 148

5 B. L. B. 433

I. L. B. 15 Mad. 424

MASTEB AND SEBVANT.

See Arms Act, 1878.

I. L. B. 20 Calc. 434

3 C. W. N. S94

I. Ii. B. 16 All. 276

I. L. B. 24 Bom. 423

I. L. B. 22 All. 118

See Charge — Form of Charge — Special

Cases — Master and Servant.

3 Bom. Ap. 1

See Government . 7 B. L. B. 688

See Judge — Qualifications and Dts-

QUALtFiCATiONS I. L. B. 9 Bom. 172

See Libel . I. L. B. 36 Calc. 907

See Limitation Act, 1877.- s. 10 n859,

s. 2) . . . 1 B. L. B. S. N. 11

See Prevention of Cruelty to Animals

Act (XI OF 1890). s. 3.

I. L. B. 26 Bom. 609

See Principal and Agent — Liability of
Principal . I. L. B. 30 Calc. 207
See Servant.

S'e Secretary of State . 1 N. W. 118

Bourke A. O. C. 106

5 Bom. Ap. 1

See Tort . . 10 C. W. N. 723

liability of master for mis

duct of servant—

See Master and Servant.

I. L. B. 36 Calc. -

— liability of servant —

See Bengal Excisr Act (VII of

s. 53 . . I. L. B. 29 Calc. £

1. Liability of master for :

of servant — Acts tvithin scope of servant's did
master is responsible for the acts of his ser-n
done within the scope of his duties, and fo::i
master's benefit. Anunt Dass v. Kelly

1 N. W. Part 7, p. 107 : Ed. 1873 8

2. Trespass. Ul

appellant, having obtained a decree for khas pse
sion of a share in a zamindari, had refused to i O]
nize the raiyats whom the farmers under hec(
sharers had settled in the estate ; and her ser n
cut and carried off the crops of those raiyats. le
by Glover, J., that the appellant was liable f tl
acts of her servants, which were done in fiihe
ance of her known wishes and for her benefit. le
by Loch, J., that those acts were beyond thcrd
nary scope of the servants' duty ; and that, ile
it could be shown that the appellant ordel
ratified the acts, she was not liable. In the psei
case the circumstances gave rise to a stronpr
sumption that the acts were done with her io\
ledge, which presumption had not been rel:te
and therefore she was liable. Shamasundap )e:
t-.lDuKHU Mandal . . 2 B. L. E. A. ( 2S

B.C. Shamasoonduree Debia v. M.A-I

MUNDUL . . . . 11 W. ; 1(

Master of 'ip

Damage done to person by subordinate officer (Sre\
Where a servant in the course of his emplopen
and in doing what he believed to be for the ii^res
of his master, acts carelessly, recklessly, v ^'
or improperly, the master is liable. But v. '
act of the servant is done by him to forw.-
purpose of his own, the master would not •-<■
ponsible. The master, not the owners, of - me
chant ship is primarily respon.sible for dama! dor
in the course of his employment by one of y su'
ordinate officers or crew to the person whh? "
jured. Anonymous . Bourke A. O.i- 14

4. A boat 'jich

let toG A & Co. for unloading the ship B, k^ loi
in consequence of the negligence of the n
sued the captain for the damage sustained,
lower court dismissed the suit with costs.
ground that G A d- Co.. the ships' asrents. '
hired the boat, and not the captain wd
Held, on appeal, reversing the judgmeii
lower Court, but without costs, that the
was not absolved from liability because tb
was caused by the neghgence of the crew, ;
they acted contrary to his orders ; that it '^
duty of the captain to deliver the cargo to w cod
sigriees, and the loading of the cargo-boa, ""a^

( 8109 )

DIGEST OF_CASES.

( 8170 )

[ASTER AND SBRV ANT— confd.

lit of that duty ; and that the fact of the owners

' the ship havin!^ agents in Calcutta did not alter

le relations between tlie captain and tlie public.

THERLAXD V. Shaw . Bourke A. O. C. 92

5, Negligence of ser-

ni — Bailor mid bailee — Proprietor and driver of
Mic. conveyance—Bom. Act VI of 1S63. The
laintiffs sued the proprietor of a buggy for dam-
'es sustained by them by reason of the negligence
I the driver of the buggy. It was proved that

e arrangement between the defendant and the

^iver was that the driver should be entrusted with

^e buggy and the use of two horses for the day to

used entirely at the driver's discretion for the

-0 of plying for hire. The driver was to pay

rupees a day for the use of the buggy and

-f. All that he made above that sum was his

■rquisite for his labour, and any deficiency he had

make good. Held, that the relation between the
i)prietor and driver of the buggy was that of
ister and servant, and that the proprietor was
jble for the driver's negligence. The relation
i.ween the proprietor and driver of a public con-
vance established by Bombay Act VI of 1S63 is
lailar to that exisling'in England under the English
•Its. Bombay Tramway Compaxy v. Khairaj
"(JPALL . . I. L. R. 7 Bom. 119

^' Offer of money hy

cindani to avoid litigation — Svit for damages.
"3 servant of the defendant, who was staying in
f plaintifi's hotel, broke a filter, the property of
1 plaintiff. In a suit by the plaintiff for damages
jippearcd that the servant, when he broke the
T?r, was not acting within the scope of his employ-
jint, nor on the defendant's busineess, or for his
i;.efit. The defendant offered to the plaintiff as
< ipensation R30 (which was refused), but without
t'nowledging any liability. Held, (i) that the
' ™dant was not liable for the act of his servant ;
Uthat the plaintiff was not entitled to a decree for
*). Gray v. Fipdiax . I. L. R, 15 Mad. 73
Damage by cut-

tr trees on land— Liability of employer not estab-
*M^ f^e facts, in re.^pect of his servant's injury.
h third party. On a claim bv the Oflicial Receiver
I| damages for the wrongful felling and carrying
t''"^i? [^^^^ growing on part of the estate held on
yit by him, those acts to the injury of the owners
ft r J /^P^^sented, were proved against cei-tain
0 he defendants holding some employment under
oi?rs, who were made co-defendants with them in
T suit. These co-defendants were not proved to
'• 'Tdered such acts, nor was there anv evidence
cut or carry away timber was within the
f the employment of any of the defendants.
- o-respondcnt employers were not therefore
«fr any legal responsibilitv in the matter.
VPKRsz V. KiSHORi Lal Roy Chowdhry

I. li. R. 23 Calc 922
1 C. W. N. 12

T res pas

-Rati-

^'on—Damnges. The plaintiff let a cargo-boat
«- t, who had been employed by the defendants

MASTER AWD SERVANT— rontd.

to land certain goods. During the landing of the
goods a dispute as to the terms of hiring arose, and
U C refusing to pay what was alleged by the plaint-
iff to be due to him for hire of his boat, the plaint-
iff refused to give up 53 bales then remaining un-
landed from his boat. U C communicated the cir-
cumstances to an assistant in defendant's firm, who
afterwards went \\ith U C and forcibly took the
goods from the plaintiff's boat without satisfying
the plaintiff's lien thereon, and the defendants
received them into their godowns. It was proved
that U C and the assistants acted without the
knowledge or authority of the defendants, and that
the defendants received the goods without any
knowledge of how they had been obtained. Held,
that, in the absence of such knowledge on their
part, the receipt of the goods by them did not
amount to a ratification of the wronfrful act of
their assistant and U 0 so as to render them liable
in an action by the plaintiff for damages for the
same. Girish Chandra Dass v. Gillavders
Arbuthnot (fe Co. . 2 B. L. R, O. C. 140
9- Liability of master for cri-
minal acts of servant— i^x/ircs^^ avthorization.
A master is not criminally responsible for the wrong-
ful act of a servant, unless he can be shown to have
expressly authorized it. Suffer Ali Kh \x ,-.
Golam Hyder Khan . . 6 W. R. Cr. 60

■*•"• — Abetment or in-
stigation by master. To make a master criminally
responsible for an offence committed by his servants,
it must be shown that there has been some act or
illegal omission on the part of the master whereby
he abetted the offence or some prior instiaation (ir
conspiracy. Queen v. Shamsuxder

1 N. W. Ed. 1873, 310

!!• — Indian Ports

Act {XII of 1875), s. 22. The servants of a con-
tractor who had engaged to discharge ballast from
a ship lying in the port of Calfut"ta, throw the
ballast into the river within the limits of the port,
and thus committed an offence under s. 22 of the
Indian Ports Act (XII of 1S7".). Jt did not appear
that the contractor had abetted the offence. Held,
that he was not, in the absence of proof of abet-
ment, liable for the acts of his servants. Chuxdi

CnURX M0OKER.TI V. E.MPRESS

I. L. R. 9 Calc. 849 : 12 C. L. R. 508

12. Action for harbouring or

sheltering the servant of another— A'o/icc 0/
contract of serv}ce. An action will not lie for the
mere harbouring or sheltering a person who is under
a contract of service to another, even with notice of
such contract of service. Blale v. I.anyo't, H T. R.
22 L distinguished. Brukowsky r. ' Thacker,
Spink <fe Co. 6 B. L. R. 107

13. - Wrongful dismissal, suit
for— Claim for uanes— Damag<'.'>. Every master and
employer has an undoubted i-ight to dismiss his
servant or agent at any time for jrtstifiable cause.
After the dismissal, whether wrongful or not, the
servant cannot claim wages. The remedy for
wrongful dismissal is by action for the damages

( 8171 )

DIGEST OF CASES.

( 8172 )

MASTER AND SERVANT— con«cZ.

sustained by the servant in consequence of the
breach of the master's contract to employ him.
USMXJT KOONWAR t'. Tayi-er . 2 W. R. 307

IssTTR Chunder Mookerjee V. Ptjddo Lochctn
GooPTo . . . . 5 "W. R. Mis. 18

14. Miicondud.

Mere venial faults are not sufficient, but there must
be something gross in the acts or breaches of duty
committed to warrant a summary dismissal. Ham
r. Eastern Bengal Railway Co. . 2 Hyde 228

15.

Unskilfulness —

Insolence — Juslifiahle dismissal. Unskilfulness in
a servant is no ground for dismissal unless it
amounts to absolute incompetence. A solitary in-
stance of insolence is not sufficient to justify a
master in dismissing a skilled servant. Where no
time was specified for a day's work in a contract,
whereby a company (the defendants) engaged the
plaintiff, a skilled mechanic, in the capacity of an
engineer, and " to make himself generally useful,"
any work within his capacity was ?ield to form part
of his duty. Superintendence of gas-pipes is within
it. By refusing when directed to work more than
eight hours a day withoiit extra pay, plaintiff dis-
obeyed reasonable orders, and defendants were
justified in dismissing him.. Williams v. Great
Eastern Hotel Co. . Cor. 76 : 2 Hyde 166

16. Probability of

similar employment — Disobedience of orders — In-
temperate language. If a firm brings out persons to
a distant country and undertakes to give a return
passage, and does not stipulate for putting an end
to the contract on either side by specified notice,
either party is entitled to the full benefit of the con-
tract in the event of its being put an end to by the
other before the expiration of the term of the en-
gagement without regard to the probabilities of his
obtaining similar employment. The dismissal of a
servant is jvistified by refusal to disobey lawful
orders, and acts of insubordination by th? use of in-
temperate language to his employers. Reid v.
Scott Thomson & Co. . .2 Hyde 172

17.

Misconduct of

servant — Right to portion of pay due at end of month.
A servant is not liable for his misconduct to forfeit
such portion of his arrears of pay as had become
due to him at the expiration of a month's service.
The servant's misconduct may have justified his
discharge in the middle of a month : if so, he is
entitled to no pay for any portion of such month.
Brojo Mohun Mytee v. Swayne. Swayne v.
Brojo MOH0N Roy . . .1 Hay 297

18. Acquiescence in

reduced rate of waxjes and stoppage of wages. On the
4th of July 1860 C engaged to come to India as
engine-driver for the East Indian Railway Company
on a progressive salary of R152-11-7 per month for
the first vear, commencing July 4th, 1800 ; R174-8-8
for the second ; R 196-5-9 for the third ; R218-2-10
for the fourth, with a free passage home ; and the
company might at any time determine the engage-
ment by a six months' notice. The company gave

MASTER AND SERVANT— conW.

this notice in September 1861. When the c
months' notice expired, the plaintiff was driv;
ballast trains, receiving (under his agreeme)
R174-8-8 per month. He continued to be j
employed, and to receive pay at the same k,
without interruption or objection until j
beginning of 1864, when he was emplo;l
to drive passenger trains for the defendants, v>
thereupon increased his salary. The plaintiff i
not assent to the increase, but claimed the bala j
of salary due to him, as on the footing of his wh )
service having been service under the original agi -
ment. His demand not being acceded to, he S' i
the company to enforce it, and also for his passa -
money home. He also sued for his salary for Ij
1861, during which month he had been suspend ,
and his pay had been withheld ; but he had t
previously claimed the pay so withheld. In 1 2
he had applied to be restored to his position un r
his original agreement, and was refused. The Cc t
below gave G a decree for the amount claim!,
minus the passage-money. Held, on appeal, rev-
sing the decision of the Court below, that a Icil
notice of dismissal having been given, continuae
in the service on a reduced salary is evidencof
acquiescence by the servant in his dismissal ; t,t
in such a case the servant serves under a fresh ci-
tract, not at the rate of wages previously receid
by him, but at the rate he is actually receivi ;
that a servant whose wages have for one moh
been stopped during suspension for alleged h-
conduct, and who, continuing in the service, 'A
not claimed them for several years, has acquiesd
in the stoppage. Campbell v. East Indian R :--
WAY Company . . Bourke A. O. C.6

19. Incompetent—

Rendering true and just accourds. The plain f,
having obtained recommendations as a tea assisiiS
in the defendant company's garden in Assam, cie
out to Calcutta, and, after some interviews witbie
defendant's agents there, entered into an ags-
ment with the defendants to enter into their ser^'e
as assistant in their tea gardens for a period of tbe
years. The agreement stipulated that the plaiiiff
should, " when required to do so, render just ^
true accounts, and give every other paii/icular
information of all moneys, etc., entrusted to
or that may come into his possession, powv
custody, or under his control ;" and it was
agreed that the defendants should " be at libcri
annul this agreement at any time for wilful mis
duct of the plaintiff in not fulfilling the terms
conditions to be observed by him, or if he slia
prevented by reason of continued illness fron
temling to, or be hindered thereby in the pert
ance of, his duties, or by reaspn of the bankrui
insolvency, or dissolution of the defendant (jJi-
pany," and in those cases the salary was to ci^
and the plaintiff be discharged from the defeii'-t
company's service. The plaintiff proceed^
Assam, worked for a short period in the defend
garden, and was then dismissed from the comp
service, on the ground of his incompetence. Ii
action brought for damages for wrongful dism

( 8173 )

DIGEST OF CASES.

( 8174 )

llASTER AWD SERVANT— cow^c?.

he Judge of the Small Cause Court was of opinion
hat, under the circumstances, there was no implied
■ arranty on the part of the plaintiff of his com-
•etence, and the grounds for dismissal having been
xpressly stated in the agreement, the defendants
ere not justified in dismissing him on another
round, and therefore should not be allowed to
itre evidence of his incompetence. Held, on refer-
nce to the High Court, that the plaintiff, having
xpressly undertaken to render true and just
ccounts, his incompetence to do so would, if
roved, be an answer to the action, and therefore
lie defendants ought to have been allowed to give
videace that he was incompetent. " True and
list accounts " meant such accounts as an inex-
lerienced assistant in a tea garden might reason-
'oly be asked to render, and were not to be inter-
.; ited merely as an undertaking that the plaintiff
ould act honestly by his employers. Held, also,
lat the agreement expressly stating the grounds of
'ismissal did not preclude the defendants from dis-
lissing the plaintiff' for incompetence. Mac-

ILLIVRAY V. JOK.U ASSAM TeA CoMPANY

I. li. R. 2 Cale. 33

20. tUiMification,

'ea of — Misconduct — Issues — Cross-examination.
>i a suit for wrongful dismissal in which the defend-

• !its pleaded justification by reason of the plaint-
f's misconduct : — Held, (i) that the defendants at
lie hearing could not give evidence of a transaction
|.volving instances of misconduct not set forth in
'leir written statement : they should either have
'ed a supplemental written statement before the
l^aring, or have furnished the plaintiff with parti-
'dars of the misconduct in question, and intimated
,1 him their intention of relying on th.i transaction
. going to establish the general allegation of mis-
jnduct; (ii) that although the transaction in
iiestion could not be made the subject-matter of
ii ancillary issue and evidence of it, as such, could
;it be received, yet that questions relating to it
;ight be put to the plaintiff in cross-examination
Ir the purpose of affecting his credit. MuNcnER-
•tAw V. New Dhuktjmsey Spinning and Weaving
)MPANY . . . I. L. R. 4 Bom. 576

21. ■ Right to vages

' hroken period. A dismissed servant is entitled

> iges for any broken period during which he
have served, at the rate he was earning when
issed. RuGHOONATH Dass v. Halle

16 W. R. 60

22.

.lustification-

' inest and fraudulent conduct. A master cannot
i, in justification of the summary dismissal of
• ivant, a cause the existence of which was un-
n to him at the time of such dismissal. At
same time subsequent knowledge that the
'>aut had all along in his service been guilty of
jihonest or fraudulent conduct might be pleaded
la good reason why a servant should not be allow-
any more than his wages up to the day of His-
S9al. Debaf.see v. Jougttet . 6 N.'W. 130

MASTER AND SERVANT— .r.^jr/.

23. Wages, suit for — Subsequent

misconduct — Forfeiture of wages. A finding of fact
that an employe is entitled to his wages notwith-
standing subsequent misconduct, is not -WTong in
law. Kalee Churn Rawanee v. Bengal Coal
Company . . . . 21 W. R. 405

24. Admission by servant after

illegal dismissal— Z)M»«mYiZ without notice. A
manager's authority to make any admission which
can be binding on his employers is withdrawn when
he is dismissed, whether the dismissal is or is not
upon such a notice as the manager has a right to
demand. Kalee Chxtrn Rawanee v. Bengal
Coal Company . . . 21 W. R. 405

25. .- Servant leaving after due

notice, right of— Right to wages—Custom of
office. Where a servant leaves his service after
giving due notice, he is entitled to receive at once
all pay then due to him, without reference to the
custom of the office or master he serves. Thomas
V. IVIanager of the Pioneer Press

2 Agra Mis. 1

26. Monthly servant leaving

"Without notice — Forfeiture of icages. Where
a servant who was engaged bj' the month served
from the 1st November to the 3rd December 1872,
and leftjhis master's service on the 4th December,
without giving notice, it was held that the servant
was entitled to be paid his wages up to the end of
November, but forfeited the wages payable to him
in respect of his December services. Ramji ^Ianar
V. Little . . . . .10 Bom. 57

27.

Forfeiture of

wages — Contract Act {IX of 1S72), s. 7-1. Wheve the
plaintiff contracted to forfeit all arrears of wages,
in default, of giving the defendant Company 15
days' notice before leaving the defendant Company's
service : Hdd, that s. 74 of the Contract Act
did not apply to such a contract, and that the plaint-
iff, by leaving the service without giving the re-
quired notice, forfeited all the wages that had not
become paj-able, though due to him. Empress of
India Cotton Mills Co. v. Naffer CnrNOER Roy
2 C. -W, N. 687

28.

Monthly service

— Wrongful leaving of employment, consequence of
— Right to ivages. ^A■hcn a monthly servant leaves
his emploj'ment wrongfully in the course of the
then current month, he loses all rights to wages for
the time he had actually served during that month.
Dhumee Behara v. Sevenoaks

I. L. R. 13 Calc. 80

29.

Theft and forgery

by servants, no duty to guard against. There is no
duty incumbent upon mercantile men, any more
than upon otlier people, to anticipate and to take
precautions against the possibility of a theft
of letters or of forgery being committed. Societe,
Generale v. Metropolitan Bank; 27 L. T. SW refer-
red to. Morrison v. Verschoyle (1901)

6 C. W. N. 429

( 8175 )

DIGEST OF CASES.

(( 8176 i

MASTER AND SERVANT— con/fi.

30. Agreement with

Native of India to depart out of India by sea to work
as an artisan — Agreement made without the permis-
sion of the Protector of Emigrants — Liability of
master for criminal acts done by servant on the master'' s
behalf — Master liable for agreements entered into on
his behalf by his servant in violation of s. Ill — Indian
Emigration Act {XXI of 1SS3) amended by Act X
of 1902), ss. 6, 107, 111. ^\^lere penal statute has
been infringed by servants, and criminal proceed-
ings are taken against the master although it lies
upon the prosecutor to establish the master's liabi-
lity, yet the question whether he is liable turns
necessarily upon what is the true construction to be
placed upon the statute. The statute should be
construed, not merely with reference to its language,
but also its subject-matter and object. Emperor
V. Jeevanji (1907) . I. L. R. 31 Bom. 611

31. "^Emigration Act

(XXI of 1883), s. 107— Servant offending under the
Act in the course of his 7naster's employment for his
master's benefit — Master's liability. If a servant
having been appointed as an agent for a particular
business by his master, enters into an agreement in
connection with that business everything which he
does within the scope of his employment for that
purpose will be binding upon the master and the
master will be criminally liable for such act of the
servant under the Indian Emigration Act (XXI of
1883). In such a case the master's express know-
ledge of or consent to the act is not necessary, be-
cause by the very fact of the appointment of the
servant as an agent in such a business, the master's
knowledge of or consent to every act done by the
servant or agent within the scope of his employ-
ment is implied by law. Emperor v. Haji Shaik
IMahomed Shustari (1907) I. L. R, 32 Bom. 10

32, Misappropriation

by Servant — Fraud — Liability of Master for miscon-
duct of Servant — 3Iisappropriation by imployees of
Government — Secretary of State, liability of — Prin-
cipal and Agent. The rule of law with regard to
the liability of the master for misconduct of the
servant is that a master is liable for the fraud of
his servant committed in the course of his service
and for the master's benefit, though it is not neces-
sary that the benefit should accrue to the master ;
and that a master is not liable for misconduct of
the servant committed for the servant's own
private benefit. A cheque was given to the plaint-
iff by the District Board for repairs done to certain
roads. On presentation of the cheque for payment
at the Government Treasury Office, the amount
was not paid to the plaintifl, but was misappro-
priated by the poddar and a inohurer employed in
the Treasury to their own use. The plaintiff
brought a suit for the recovery of the amount
against those officers of the Treasury as well as the
Secretary of State for India : — Held, that the Secre-
tary of State was not responsible for the misappro-
priation by his employees, the misappropriation
not being within the scope of the duties entrusted
to them. The fraud and misappropriation were
not committed either for the benefit of the Secre-

MASTER AND SERVANT— cow cZ(Z.

tary of State or for purposes of the agency. Bat
wick V. English Joint Stock Bank, L. R. 2 Exch. 259
Houldsworth v. City of Glasgow Bank. L. R. 6 A. C
317, British Mutual Banking Company, Ltd., v. Th
Charnwood Forest Railway Co., L. R. 18 Q. B. L
714, Burmah Trading Corporation, Ltd., v. Mirz
Mahomed Ally Sherazee, L. R. 5 I. A. 130, McLare
Morrison v. Verschoyle, 6 C. W. N. 429, Moti Lc
Ghose V. Secretary of State for India, 9 C. W. N, i9i
Lall Chand v. The Agra Bank, Ltd., L. R. 18 I. A
11 1, referred to. Gopal Chandra Bhattachahje.
V. The Secretary op State for India (1909)

I. li. R. 36 Calc. 64'
MASTER OF SHIP.

— liability of —
See Bill of Lading
See Charter Party

. 13 B. L. R. 39
. 8 B. L. R. 34(
I. L. R. 7 Bom. 5

lien of, for wages and disburse

See Bottomry-Bond

MATE'S RECEIPT.

See Contract

5 B. L. R. 25J

6 B. L. R. 32.
1 Ind. Jur. N. S. 301

I. L. R. 33 Cab. 54',
I. L. R. 34 Ca.c. 17i

MATERIAL ERROR.

See Error . I. L. R. 29 Cale. 48

MATERIAL IRREGULARITY.

See Civil Procedure Code, 18S2, s;
373, 622 . I. L. R. 33 Bom. 72

MATH.

See Hindu Law — Endowthent.
See Mamlatdar . I. L. R. 28 Bom. 21;
See Mutta.
MATRIMONIAL OFFENCES.

See Restitution of Conjugal Rights.
I. L. R. 34 Cale. 97
MATWALI.

See Mahomedan Law — Endowment.

See MuTWALLi.
MATWALI LANDLORD.

See Landlord and Tenant.

8 C. W. N. 881
L. R. 31 1. A. 14
See Mahomedan Law — Endowment.
MAURASI MUKARARI LEASE.

See Hindu Law . I. L. R. 33 Calc. 31
See Lease.

( 8177 )

DIGEST OF CASES.

8178 )

\IAXIMS.

" actio personalis moritur cum

persona" —

See Abatement of Suit — Appeals.

1. L. R. 26 Bom. 597
See Malicious Prosecution.

I. L. R. 26 Mad. 499

See PtiGHT OF Surr — Survival of Right.
I. L. R. 13 Bom. 677

" actus curice neminem grava-

bit"—

The maxim " Adu^ curiae vem.inem

ravabit " observed upon as requiring quaUfication.
Lambinayani Javaji Subbarajulu Nayani
AKU V. Uddighiri Venkataray'a Chetty

2 Mad. 268

" aedificare in tuo proprio solo

non licet quod alteri noceat "—

See Custom . I. L. R. 10 All. 358

See Prescription — Easements — Privacy.
I. L. R. 10 All. 358

MAXIMS— coH<(Z.

ad ccelum "—

See Injunction — Special Cases — Cut-
ting Trees . I. L. R. 24 All. 499

"debitum et contractus sunt
nullius loci "—

See Jurisdiction — Causes of Jurisdic-
tion— Cause op Action — Negotiable
Instruments . . 1 Mad. 436

— " de minimis non curat lex " —

6'ee Defamation . I. L. R. 13 Mad. 34

— " audi alteram pertem" —

See Club . I. L. R. 7 Mad. 319

certum est quod certum reddi

potest"—

See Mortgage — Form of Mortgages.

I. L. R. 9 All. 158

" communis error facit jus " —

See OuDH Estates Act (I of ISfiO).

5 C. W. ISr. 602

"contra non valentem agere

nulla currit prsescriptio" —

See Llmitation Act, 1877, Ap.t. 144 —
Adverse Possession.

I. L. R. 8 Bom, 585

" cujus est solum ejus est usque

" expressio unius personae

exclusio alterius"—

See Deed — Construction

est
10 Bom. 51

I taciturn

expressum

facit

cessare

-See Transfer of Property Act, s. 119.
I. L. R. 21 Mad. 69

cusat'

ignorantia legis neminem ex-

See Embankment

7 C. W. N. 286

See Marriage Act, 1872, s. IS.

I. L, B. 16 A]

1.212

Suit to set aside

illegal adoption. A suit to set aside the adoption
of a second son must be made within twelve years
from cause of action. The maxim " Ignorantia
legis neminem evcusat " applies to questions of
the Hindu law of inheritance and adoption as well
as to other laws. Radhakissen Mahapater
V. Sreekissen Mahapater . . 1 W. R. 62
See as to this maxim, Sadho Singh v. Kishnee
3 N. W. 318

See (conim) Soorburnomonee Dabia v.
Petumber Dobey . Marsh. 221 : 1 Hay 497

2. Presumption as

to knowledge of law and limit of. Where loss of
life and damage have resuJted from the explosion of
fireworks in a passenger carriage, the onus is on the
railway company to show that they took due care to
prevent the conveyance of fireworks in that manner,
and not on the plaintiff to shew that they did not.
Scott V. London Dock Co., 3 H. d; C. o9'J ; Kear-
ney v. London, Brighton and South Coast Bailwat/
Co., L. R. '> Q. B. ill : on appeal L. R. 6 Q. B.
759 ; Burne v. Boadle, 2 H <L- C. 722 ; Cotton v.
Wood, S C. B. N. S. oHS ; Foulka v. Metropolitan
Railweiy Co., L. R. -5 C. P. D. 157 ; Welfare v,
London and Brighton Raibcay Co., L. R. 4 Q. B.
1.93; and Deiniel v. Metror.olitan Railway Co.,
L. R. 3 C. P. 1.93 : on appeal, L. R. o E. d: L A p.
J-5, referred to. Per 0 'Kinealy, J. (m the Court
below) — In the absence of evidence that the de-
fendants had taken steps to prevent passengers
from taking fiieworks into the carriage, the Court
cannot presume that the fireworks were taken
clandestinely into the compartment, notwithstand-
ing the fact that such carriage of fireworks is an
offence, and that every one is presumed to know
the law. The maxim that every man is presumed
to know the law is limited to the determination
of the civil or criminal liability of the person whose
knowledge is in question. It cannot legitimately
be made use of where (as in the present case) the
parties are different and distinct from him. East
Indian R\ilway' Co. v. Kai.ly Dass Mookerjee
I. L. R. 26 Calc. 465

" in pari delicto potior est condi-

tio possidentis" —

-S'ee Contract — Wagering Contkai ts.

I.Ii. R. 9 Bom. 358
<See Estoppel — Estoppel by Deeds and
OTHER Documents.

I. Ii. R. 1 All. 403

" no one can be Judge in his

own cause" —

See Contract — Conditions Precedent.
I. L. R. 5 Mad. 173

( 8179 )

DIGEST OF CASES.

( 8180 )

MAXIMS— cowii.

"nova eonstitutio futuris for-

mam imponere debet, non praeteritis."

See Statutes, construction of.

5 Moo. I. A. 109
" milium tempus occurit regi" —

1. Hindu law. This

maxim is a rule of Hindu and Mahomedan as
well as English law. Vyakunta Bapuji v.
Government op Bombay . 12 Bom. Ap. 1

2. Legislation in

Bombay Presidency. The extent to which the ma-
xim nullum tempus occuril regi has been restrained
by legislation in the Presidency of Bombay consi-
dered. Vyakunta Bapuji v. Government of
Bombay .... 12 Bom. Ap. 1

Government op Bombay v. Haribhai Mon-
BHAi .... 12 Bom. Ap. 225

" omnia prsesumuntur contra

spoliatorem " —

See Estoppel — Estoppel by Deeds and
other Documents.

3 Bom. A. C. lie
See Salt — Acts and Regulations re-
lating TO — Bombay .

7 Bom. A. C. 89

omnia prsesumuntur rite esse

aeta"-

See Appellate Court — Objection

taken for first time on Appeal —
Special Cases — Guardian.

2 N. W. 89

See Execution of Decree — Notice of

Execution . . 22 W. R. 5

See Information of Commission of

Offence . I. L. R. 7 Mad. 436

See Superintendence of High Court

—Civil Procedure Code, 1882, s. 622.

I. L. R. 10 All. 119

1. Proceedings of

•public ofilcer. The proceedings of a public officer
must be presumed to be regular ; and if they took
place long ago (e.g., twenty years previously), it
is not just to require a proof of such circumstances
as due service of notice. Khan v. Bama Soonduree
Dossee 25 W. R. 62

Publication of

Government order, presumption as to. There being
no proof given by either party as to whether an
istahar s&\d to have been published by Government
was or was not duly published : — Held, that the
publication of the i^tahar must be presumed,
having regard to the presumption in favour of
the due performance of official acts. Prosunno
CooMAR PvOY V. Secretary of State for India

I. li. R. 26 Calc. 792

3. Revenue cases.

As in civil suits so in revenue cases all things must
be presumed to have been correctly done. It is

MAXIMS— conic?.

not necessary to inquire into the instructions whi(
revenue agents receive, and untU the contrary
sho\vn, the parties must be held to have been pr
perly represented and to be bound by the decisior
Ahsanollah v. Jusoda . . 23 W. R. "J

4. Sale in executic.

for arrears of rent. Where a tenure is sold in ex
cution of a decree for arrears of rent, and a cert
ficate of sale is granted by the Collector, it must \
presumed that all the ordinary proceedinss relati)
to the payment of the purchase-money have be(
fulfilled. Fyazooddeen Bhooya v. Shumsti

NISSA BiBEE . . . . 12 W. R. 5C

See Ram Rukha Roy Jemadar v. Gobind Dg
Byragee 15 W. R. 2)

5. — — Certificate of a

— Proof of title without production of certifica
A plaintifi who has purchased land at a sale
execution of a decree is not bound to rely on t)
certificate to prove his title. If it is proved aZira
that the sale took place, and that possession w
given, the Court should presume, after long laj:
of time and possession by a mortgagee of the pi
chaser, that the sale Mas duly made by the Cou
Velan v. Kumarasami . I. L. R. 11 Mad. 2i

6. Transfer of C(

not recorded. Where an estate which was subject
a mortgage was attached in execution, but w
leased out to fresh tenants and imder-tenai
between the attachment and the sale ; and the cs
was transferred from the jurisdiction of one Coii
to that of another, in some way which was ri
apparent on the record ; and the lower Court rul.
that the transfer was irregular and that the salevi
void against the new lessees and under-lessees ;■
Held, that the lower Court should have assumi
that the sale transfer was regular and the sale gocj,
and that all proceedings after the attachmfS
were of no avail against the judgment-creditcj.
HossEiNA v. Jhamun Singh . 25 W. R. 3j

7. Irregularities i

proceedings. Where irregularities had clear
occurred in proceedings, the Court refused to p|-
surae a person had been made a party and v^
therefore bound by them. Chowdhry Mahomj>
Zuhoorul Huq v. Mahomed Yakoob I

23 W. R. 3|r

"optimus interpres ran

suetudo"-

See Landlord and Tenant — Ejectmi
— Generally . 13 B. L. R. 4
optimus legum interpres ci

See Mamlatdar, jurisdiction of.

I. L. R. 14 Bom. 'f
fait

"qui faeit per alium.

See Signature

I. L. R. 24 All. ;9

( 8181 )

DIGEST OF CASES.

( 8182 )

MAXIMS— coTic/cZ.

"quod fieri rion debet factum

valet ■

See Hindu Law — Adoption — Doctrine
OF Factttm Valet as respects Adop-
tion.

See Hindu Law — Adoption — Requisites
for Adoption — ^Authority.

I. L. K. 12 All. 328

See Hindu Law — Adoption — Who may

OR MAY' NOT BE ADOPTED.

I. L. E. 14 All. 67

I. L. R. 21 All. 460

Ii. R. 26 I. A. 113

See Hindu Law — Marriage — Right to

GIVE IN Marriage, etc.

I. L. R. 11 Bom. 247
I. L, R. 22 Bom. 812
See Madras Toavns Improvement Act
III OP 1871, ss. 61, 62.

I. L. R. 7 Mad. 65

— " respondeat superior " —

See Abetment . I. L. R. 20 Bom. 394

— '• sic utere tuo ut alienum non

loedas "—

See Custom . I. L. R. 10 All. 358

See Prescription — Easements — Pri-
vacy . I. L. R. 10 All. 358

— ■ " stare decisis " —

See Fenal ((.de (Act XLV of 1860^, ss.
230, 235 AND 243 I. L. R. 28 All. 9

" volenti non fit injuria

See Negligence . I. L. R. 13 Bom. 183
MAYUKHA.

See Hindu Law . I. L. R. 39 Bom. 431

MEASUREMENT OF LANDS.

See Appeal — Measurement of Lands.
See Bengal Tenancy Act, ss. 90, 52 and
188 . . . . 7C. W. N. 93

See Lease — Construction.

I. L. R. 14 Gale. 99
L. R. 13 I. A. 116
iSee Res Judicata — Competent Court
— Revenue Courts.

I. L. R. 10 Calc. 507
Seo. Res Judicata — Estoppel by Judg-
ment . . I. Ii. R. 3 Gale. 271
3 G. L. R. 74

by a co-sharer landlord —

See Bengal Tenancy Act, s. 91.

I. L. R. 35 Gale. 417

power of ameen in —

See Penal Code, s. 186.

I. L. R. 22 Gale. 286

MEASUREMENT OF LANDS— con^rf.

— question of standard of—
See Bengal Tenancy Act, s. 1.')8.

I. L. R. 17 Gale. 277
See Special or Second Appeal — Or-
ders subject or not to Appeal.

1. L. R. 22 Gale. 477

I. L. R. 25 Gale. 34

L L. R. 26 Gale. 556

" Jurisdiction " — Valuation

of suit — Bengal Rent Act, ]869, s. 37. The word
" jurisdiction " in Bengal Act VIII of 1869, s. 37,
refers not merely to local jurisdiction, but also to
jurisdiction a? to value. Pearee Mohun Mooker-
JEE V. Raj Kbisto Mookebjee . 20 W. R. 385

2. Suit to measure

land — Bengal Rent Act, 7S^9, s. 37. A suit to
establish a zamindar's right to measure land must
be brought in the Court which would have had
jurisdiction in a suit to recover such land. Shubo
Soonduree Debia v. Buloram Gooho

24 W. R. 423

3. Right to measure — Proprietor

of estate— Bengal Rent Act, 1869, s. 37 (Beng. Act
VI of J862. s. 9). Held, by the majority of the
Court (Seton-Karr, J., dubi'tavte), that a proprie-
tor of an estate is entitled, under s. 9, Bengal Act
VI of 1862, to measure the lands of any subordi-
nate tenure within the limits of his estates, what-
ever the character or size of the tenure or the
amount of rent paid in respect of it. Run
Bahadoor Singh v. Muloorum Tewaree

8 W. R. 149

Zamindar-

Bengal Rent Act, 1869, s. 37 {Bengal Act VI of 1862 y
s. 9). There must be some express restriction be-
fore a zamindar can be precluded from the benefit
given him by s. 9, Bengal Act VI of 1862. of measur-
ing the lands in the possession of his raiyats. Ooma
Churn Biswas v. Shibnath Bagchee

8 W. R. 14
Proprietor in pos-

session— Bengal Rent Act, 1869, s. 27 (Beng. Act
VI of 1862, s. 9). Under s. 9, Bengal Act VI of
1862, the proprietor who can claim to measure
must be a proprietor in possession, and not a pro-
prietor out of possession, although lie may be able
to prove his title. The only question which the
Collector has to trj* under that section is, which
person is in possession, and his decision is final
only as to possession and not as to title. The un-
successful party has a right to sue in the Civil Court
for a declaration of his right. KaleeDass Nundee
V. Ramguttee Dutt . 6 "W. R., A ct X, lO
6. Right of pro-
prietor to survey and measvre — Be'n{jal Rent Act,
1869, s. 37. A proprietor of an estate or tenure
has a right to make a general survey and measure-
ment of the lands comprised in his estate, under the
provisions of s. 37 of the Rent Act, without prov-
ing that he is in receipt of the rents, there being
nothing in law which prevents him from making

{ 8183 )

DIGEST OF CASES.

( 8184 )

MEASUREMENT OF LANDS— cow^cZ.
such a survey or measurement as is contemplated
by ss. 26 and 37 merely because his estate happens
to be sub-let to a number of tenure-holders. The
only excepted case is where there is a special agree-
ment to the contrary. Brojendro Coomar Roy
t: Krishna Coomar Ghcse

I. L. E. 7 Calc. 684 : 9 C. L. R. 444

7. Person in re-
ceipt of rents — Jurisdiction of Collector — Bengal
Rent Act, 1869, s. 3? {Beng. ActVI of lS62,s.9).
A Collector's jurisdiction to allow a measurement
where the proprietary right to the land is contested
is not barred by ss. 9 and 10, Bengal Act VI of 1862,
if he is satisiied that the party seeking his assist-
ance to measure is in receipt of the rents. If the
Collector disallows the measurement on the ground
that the applicant is not in receipt of the rents,
the party aggrieved may appeal to the Civil Court.
Smith v. Nundun Lalt, . 6 "W. R., Act X, 13

In the same case on review of judgment the order
of the High Court was amended, and the case re-
manded to the .Judge to determine according to
ss. 9 and 10 of the above Act, which party was in
receipt of the rents, and under which of these sec-
tions the application for measurement had been
made, and to decide accordingly. Nundun Lall
r. Smith . . . . . 7 W. R. 188

8. Proprietor in re-
ceipt of rents — Bengal Rent Act, 1869, s. 37 {Beng.
Act VI of 186-2, s. 9). Under s. 9, Bengal Act VI
of 1862, only a proprietor who is in receipt of the
rents of an estate or tenure has a right to make a
general survey and measurement of the land com-
prised in such estate or tenure. Wise v. Ram
Chunder Bysack . . . 7 W. R. 415

Ahsanoollah v. Kadir . . 25 W. R. 92

9. -— Proprietor in re-
ceipt of rents — Proof of possession of land. A pro-
prietor of land need only show that he is in un-
doubted possession of the property to entitle him
to ask the assistance of the Court to enable him to
measure his land. Raj Chunder Roy v. Kishen
Chxtnder . . . 4 W. R., Act X, 16

10. Proprietor in

receipt of rents — Bengal Rent Act, 1869, s. 37 (Bengt
Act VI of 1862, s. 9) — Lease to third party. A
proprietor of an estate is not barred from measure-
ment by the fact of its being leased to a third party ;
nor is a proprietor bound, under s. 9, Bengal Act
VIof 1862, to show that he is in actual receipt of
the rents at the time when he applies to measure
the land. Krishto Motee Deisia v. Ram Nidhee
Sircar 9 W. R. 331

11.

Neighhouring za-
37, 38 {Beng.

mindar — Bengal Rent Act,
Act VI of 1862, ss. 9 and 10). Ss. 9 and 10 of Act
VI do not embrace the case of a neighbouring
zamindar alleging to be wronged by the act of the
Collector or the measuring zamindar. His remedy
is in a separate civil action. Permessuree Per-
SHAD Narain Singh v. Nubee Buksh

2 W. R., Act X, 101

MEASUREMENT OP LANDS— co?i<cZ.

12. . Restraining of

right of measurement — Abandonment of rights of
measurement to grantee. The abandonment to a
grantee of all rights of measurement as against the
raiyats, with a view to resumption of lands within
the talukh, does not apply to a measurement of the
talukh itself as against the grantee, and does not
amount to a restraint of the right of measurement
under Bengal Act VI of 1862. Kebul Kishen
Doss v. Jamineb . 5 "W. R., Act X, 47

13.

Lessee under

Court of Wards — Bengal Ren.t Act, 1869, s. 37
{Beng. Act VI of 1862, s. 9). A lessee under the
Court of Wards is competent, under s. 9, Bengal
Act VI of 1862, to make a general survey of the
lands comprised in his lease. Watson & Co. v.
Bhoonya Koonwar Narain Singh

W. R. 1864, Act X;i05

14. Person not m

receipt of rents — Disputed title — Title — Possession —
Receipt of rent. Where a person sues to have the
assistance of the Collector to measure lands, of
which he alleges himself to be the proprietor by
purchase, he is not entitled to have such assistance
if his title is disputed, and if he is found not to have
been in possession or in the receipt of rents from
the date of his purchase. Durga Charan Mazuji -
DAR V. Mahomed Abbas Bhuya . 6 B. L. R. 361

s.c. DooRGA Churn Doss v. Mahomed Abbas
Bhooyan 14 W. R. 399

Upholding on appeal under the Letters Patent
the decision of Glover, J., in Doorga Chundeh
Doss V. Mahomed Abbas Bhooyan >-'^

[14 W. R. 121

i"- 15."^ ■ — Bengal Rent Ad,

1869, 's. 37 {Beng. Act VI of 1862, s. 9)—Lakhi-
raj land. S. 9, Act VI of 1862, gives no authority
to proprietors to survey or measure lakhiraj land.
GoLAM Khejur v. Erskine & Co. 11 "W. R, 445

16. Right of zamin-
dar— Lakhiraj — Bengal Rent Act, 1869, s. 37
{Beng. Act VI of 1862, s. 9). A zamindar is not
entitled to measure the lands of a lakhirajdar hold-
ing a rent-free tenure within the limits of his estate.
Ranglal Sahu t'. SiALi Dhar Das

3 B. L. R. Ap. 27 : 11 W. R. 293

17. Bengal Rent Aci,\

1869, s. 37 {Beng. Act VI of 1862, s. 9)—LaJcMraj\
land. The defendant held land within the plaintiff's
patni, paying rent to the plaintiff, and also certain
lakhiraj lands. The plaintiff applied to the Col-
lector for permission to make a survey and measure-
ment of the lands of the patni. He was opposed
by the defendant, who objected to any survey being ^
made of the lakhiraj land. Held, under Bengal Act
VI of 1862, ss. 9 and 10, that the plaintiff was not
entitled to survey and measure the lakhiraj land.
Prasannamayi Debi v. Chandranath Chow-
dhry . 2 B. L. R. S. N. 5 : 10 "W. E. 361

18.

Bengal Rent Act,

1869, ss. 37 and 38— Right of co-sharers of joint

( 8185 )

DIGEST OF CASES.

( 8186 )

MEASUREMENT OF JjANDS—contd.

vndivided estate to measurement of land. A share-
holder in a joint undivided estate cannot bring a
suit under s. 37 of Bengal Act VIII of 1860 for the
measurement of his share. Saxtiram Paxja v.
Bykujjt Paxjah

10 B. L. R. 397 : 19 W. R. 280
Ncr under Bengal Act VI of 1862, s. 10, and
Bengal Act VIII of 1869. s. 38. Moolook Chaxd
MrKDAL V. MoDHOosooDrx Bachasputtv

10 B. L. R. 398 note : 16 W. R. 526

Mahomed Bahadur Mozoo.mdar r. Raj Kishex

SiKGH . 10 B. L. R. 401 note : 15 W. R. 522

Shorexdro Mohun Roy v. Bhuggobutty

Churx Guxgopadhya

10 B. L. R. 403 note : 18 W. R. 332

Baba Chowdhry v. Abedooddeex Mahomed

I. L. R. 7 Calc. 69

s.c. RrpEXXESSA Bibi Chowdhraxi v. Abed-

CDDix Mahomed . . . 8 C. L. R. 73

! Pearee Mohux Mookerjee v. Raj Kristo

Mookerjee t, . . . . 20 W. R. 385

19. Bengal Rent Act,

1S69, ss. 37 and 38 — Measurement of lands — Co-
sharers — Xotice of intended measurement. The
words •' the person claiming the right to measure "
in s. 37 of Bengal Act VIII of 1869 must be read
as implying the sole proprietor or whole body of
proprietors of the land for the measurement of
which application is made. Where therefore there
are joint proprietors, the notice of an intended
measurement of the lands must be a notice of all
the joint proprietors. It is not sufficient that one
co-sharer should give notice, and make his co-
sharers parties to the suit. See Santi Ram Panjah
1 T. Bykunt Panjah, W B. L. R. 397 : 19 W. R. 280 ;
I Pearee Mohun Mookerjee v. Raj Kisto Mookerjee,
\ 20 W. R. 38r, ,- and Moolook Chand Mundul v.
; Modhoosoodun Baclmsputty, 16 W. R. 126 : 10 B. L.
R. 398 note. Ishax Chijnder Roy r. Busarfddix
5 C. Ij. R. 132

j 20. Bengal Rent Act,

1869, s. 38 — Fractional proprietor — Parties. A
part-proprietor of an estate is competent, under
Bengal Act VIII of 1869, to apply for measurement
of its lands after making the remaining proprietors
j parties to the proceedings. Abdool Hosseix v.
j Lall Chaxd Mohtax Dass

I. L. R. 10 Gale. 36 : 13 C. L. R. 323

2l. Share-holder —

Proprietor. An applicant under s. 10 of Bengal
Aot VI of 1862 must be the proprietor of the estate,
and not merely a shareholder in the proprietary
body. Moolook Cliund Mundul v. Modhoo Soodun
BachuspvMy, 10 B. L. R. 398 note ; Mahomed
Bahadur Mozoomdar v. Raj Kishen Singh, 10 B.
I. R. 401 note ; Shorendro Mohun Roy v. Bhug-
gobutty Churn Gangopadya, 10 B. L. R. 403 note.
followed. Baba Chowdhry v. Abed.m^ddeex
Mahomed . . . I. L. R. 7 Calc. 69

s.c. Rupexxessa Chowdraxi r. Abedud-
Dix Mahomed . . . . 8 C. L. R, 73

MEASUREMENT OF LANDS— co«/«i.

22. _ Liability to measurement

—Bengal Rent Act, 1869. s. 37 (Beng. Act VI cf
186?, s. 9)— Suit against difjerent dfftndants. A
single suit simply to measure lands may be brought
under s. 9, Bengal Act VI of 1862, against
several defendants, although their rights and ten-
ures are different. Shushee Bhoosux Baxerjee
V. NcBocooMAR Chatterjee . 8 W. R. 94

Bengal Rent

Act VI of 1862, 8. 9)—

The purchaser of

Act, 1869, s. 37 {Beng.
Purchaser of subordinate tenure.
a subordinate tenure who did not enter his name
in the talukhdar's sorishta, and whose tenure
therefore was not wholly disconnected from the
estate to which it had been joined, is liable to
have his lands measured under s. 9, Bentral Act VI
of 1862. Tweedie v. Ram Xaraix Doss

9 W, R. 151
24, Application for measure-
ment—.Be7(5raZ Rent Ad, 1869, s. CS— Right to
measure. Without a special application made by
the proprietor under Bengal Act VIII of 1869, s.
38, neither Collector nor Judge has any right to
ascertain or record tenures or under-tenures of
persons interested otherwise than as occupants.
Kalee Xath Chuckerbutty v. Reii.y

24 W. R. 272

25.

Bengal Rent
VI of 1862, s. 10).

Act, 1869, s. 38 (Beng. Act

S. 10, Bengal Act VI of 1862, contemplates the case
of a proprietor of an estate who, by reason of inabi-
lity to ascertain who are the persons liable to pay
rent to him, is unable to measure his estate ; but
not that of a patnidar who knows who is liable to
pay rent to him, and whose attempt to get the Col-
lector's assistance in a minute measurement of
the lands held by each of the raij-ats is simply with
a view to harass and oppress them. Dwarkaxath
Chuckerbutty v. Bhowaxee Kishore Chuck-
erbutty 8 W. R. 12

26. ■ Bengal Rent

Act, 1869, s. 38 (Bev-g. Act VI of 1862, s. 10).
A party applying under s. 10, Bengal Act VI of
1862, is entitled to measure only such lands as are
comprised in his estate, and for which he is entitled
to receive rent ; he is not entitled under cover of
that section to measure lands not comprised in
the estate which he has purchased. Khuoexdro-

NATH jMULLICK V. KaXTEE RaM PaUL

14 W. R. 368

27. Bengal Rent Ad ,

1869, s. 38 (Beng. Act VI of 1862, s. 10). S. 10,
Bengal Act VI of 1862. contemplates possession by
the receipts of rents for those lands of which the
measurement is applied for. Pubeejax Khatoox
V. Bykuxt Chuxdek Chuckerbutty

7 W. E. 96

28. Bengal Rent Act,

1869, s. 38 (Ben/j. Act VI of 1862, s. 10)— Com-
hinationof raiyats to withhold information. Where
raiyats combine to withhold from the landlord
information requisite to enable him to collect Ms

( 8187 )

DIGEST OP CASES.

( 8188 )

MEASUREMENT OF JjANDS—contd.
due rent^, one suit may be brought against a
number of them, under s. 10, Bengal Act VI of
1862, for measurement and ascertainment by the
Collector of the details of the tenures of each
raiyat. Solano v. Soohron Roy

6 W. R., Act X, 4

29. — : Necessary proof

—Bengal Rent Ad, 1869, s. 38 (Beng. Art VI cf
18^2, -v. 10). An applicant under s. 10, Bengal
Act VI of 1862, must first prove what steps he
has taken to obtain the knowledge of the tenures
in his estate, and that he is unable to measure
because he is unable to ascertain them. If his
averments are objected to, and the Collector
proceeds without inquiry, the proceedings are
invalid and without jurisdiction. An applicant
under the above section must be the proprietor
of the estate, and not a shareholder only in the
proprietary body. Mahomed Bahadoor Mojoom-
DAR V. Raj Kishen Stngh

15 W. R. 522 : 10 B. L. R. 401 note

30. Bengal Rent Act,

1869, s. 38 (Beng. Act VI of 1^62, s. 10)— En-
hancement of rent and resumption of rent-free lands.
S. 10, Bengal Act VI of 1862, was intended to assist
a proprietor to measure the lands comprised
in his estate when he cannot ascertain who the
raiyats are, what lands are in their occupation, and
what rents they have to pay ; but not to enable
him to enhance the rents of the raiyats ; or resume
rent-free lands by throwing the onus on the lakhi-
rajdar to prove his rent-free holdins:. Sharoda
Pershad Gangooly v. Raj Monrrsr Roy

18 W. R. 165

31.

Necessary evi-

dence—Beng. Act VIII of 1869, s. 38. Before
proprietor in possession as a ticcadar or proprietor
for the time being, standing in the shoes of the
proprietor, can apply under Bengal Act VIII of
1869, s. 38, to have his estate measured, he must
show that he is in need of the help which the sec-
tion proposes should be granted, and that he cannot
ascertain who are the persons liable to pay rent to
him or the nature of their holdings. Proceedings
taken without inquiry as to the existence of
the state of facts required under s. 38 are invalid,
■whether taken by the Collector or by the Civil
Court. Jamalooddeen Hossein v. RA:\rADHiN
Misser . . . . 24 W. R. 331

Affirmed on appeal under the Letters Patent
25 W. R. 136

32. Right of auction-
purchaser to measure — Beng. Act VIII of 1869,
s. 38. Where an auction-purchaser at a sale for
arrears of Government revenue applied, under
Bengal Act VIII of 1869, s. 38, for measurement
of the purchased estate, and no objection was made
in the first instance on the score of inability to mea-
sure by the raiyats : — Held, that the applicant's
right to measure was undoubted. Per Glover, J.
— A zamindar cannot insist upon a measurement
simply by alleging inability to measure, but must,

MEASUREMENT OF LANDS— cow^

in ordinary circumstances, prove such inability.

Abdool Baree v. Nittyanund Koondoo

21 W. R. 103

33. — Bengal Rent Act,

1869, s. 38 (Beng. Act VI of 1862, s. 10)— Power
of revenue officers. S. 10, Bengal Act VI of 1862,
merely empowers revenue officers to decide what
rate of rent the tenant of a particular parcel of land
has been paying, and does not empower them to
declare that rent at a certain rate shall be paid sim-
ply because rent at that rate has been paid bv the
tenants of neighbouring lands. Anunt Manjhee
V. Joy Chunder Chowdhry . 12 W. R. 371

Sree Misser v. Crowdy . . 15 W. R. 243

34. Bengal Rent Act,

1869, s. 38 (Beng. Act VI of 1862, s. 10)— Duty of
Collector — Rate of rent, determination of. The
Collector's duty under Bengal Act VI of 1862, s. 10,
is to ascertain the actually existing rates of rent
payable by the raiyat to the zamindar : he has no
jurisdiction to assess the rent at enhanced rates.
Crowdy v. Omrao Singh . 22 W. R. 476

RuTToo Singh v. Crowdy

22 W. R. 477 note

Neem Chand Sahoo v. Raji Ghoi.am Singh

24 W. R. 424

35. Bengal Rent Act,

1869, s. 38 (Bengal Act VI of 1862, s. 10)— Power
of Collector — Question of title. On an application
to measure the lands of a particular estate, the Col-
lector is not empowered by Bengal Act VI of 1862
to determine summarily the character of every
holding upon that estate, but only to inquire how
and by whom every portion of land therein is held,
and what rent is payable in respect of such land.
In the event of a Collector recording that parti-
cular tenants claimed to held as mokuraridars, a
Civil Court would have jurisdiction to determine
a title on which a cloud had been cast by his
proceeding-. Wise v. Lakhoo Khan

16 W. R. 50

36. Pmi'er of Col-
lector— Assessment of rents — Bengal Rent Act, 1869,
s. 38 (Bengal Act VI of 1862, s. 10). Under the
above section, the Collector is not entitled to assess
the rents at what he considers to be fair and reason-
able rates from the rents prevailing in the neigh-
bouring properties, but is only authorized to as-
certain for the landlord what the existing condi-
tion of his estate is, what are the measurements,
what the names of his tenants, and what the rents
they are paying. Animf Manjhee v. Joy Chunder
Chowdhry, 12 W. R. 371, followed. In a suit for
rent by one co-sharer, the plaintiff claimed that the
rent should be calculated at the rate fixed by the
Collector, in a proceeding held by him under s. 10
of Bengal Act VI of 1862. It appeared that the
defendants had not had notice of the proceedins.
and that the Collector had ascertained the rate
from the rents paid in the neighbouring properties.
Held, that the proceedings of the Collector were
irregular, as he had acted without jurisdiction, and

DIGEST OF CASES.

( 8190 )

VIEASUIIEMENT OF 1j A.NDS— confd.
hat they were not binding on the defendants for
he purpose of showing the rate at which rent was
layable by them. Baba Chowdhky v. Abedood-
)EKN Mahomed . . I. L. R. 7 Gale. 69

S.C. RtrPENNESSA BiBI ChOWDHRANI V. AbED-

DDiN Mahomed . . . 8 C. L. R. 73

37.

Fixing rates of rent — D^ity

f Collector— Beng. Act VIII of 1S69, s. 38—
'inality of proceedings. In a suit in which defend-
nt had admitted his tenancy, but had disputed
|lie amount of the rent claimed by plaintiff, and
llaintiS had not made a special application to the
.ollector, under s. 38, Act VIIT of 1869, for the
etermination and record of tenures, under-ten-
res, and rates of rent in the land in suit -.—Held,
'at, in the absence of special order of the
ilector fixing the rates of rent, there Avas no
L;al order which could be considered final, and
le matter was open to the Civil Court. Jaivia-
ioddeen Hossein v. Ramadheex Misser

25 W. B. 136
(firming on appeal under the Letters Patent,

S.C. 24 W. B. 331

38. Dutii of Collector

-Bengal Rent Act, 1S69, s. 3S~-Delegation of
, owers by Collector to Ameen. In a suit under s. 38,
le Collector cannot delegate his powers to an
meen or accept absolutely without reservation
16 whole report of that officer, and order assess-
Lent in accordance with the rates found by him ;
ich report being only a part of the evidence to be
.ken into consideration. Shetul Shaikh v. Hnxs
24 W. R. 184

39. — — Ameen deputed

measure, duty of— Bengal Rent Act, 1869, s. 38
'3eng. Act VI of 186-2, s. 10). An Ameen deputed
ji make a measurement under the provisions of
I 10, Bengal Act VI of 1862, is bound to record the
jate of things as actually existing, and has no
;isiness to record what he"^ thinks ought to be the
Ites. If, however, the Ameen, or the Collector
iperintending his proceedings, does any act not
conformity with this section, the remedy for any
irty dissatisfied is to appeal to the Civil Court
thin the time and in the manner prescribed by
pt X of 1859. Bala Thakoor v. Meghburn
=^'6H 14 W. 11.269

^' ■ ■ Beng. Act VIII

1869, s. 38— Power of Collector. Where an
'Plication is made to a Collector under Bengal Act
lU of 1869, s. 38, for tlie measurement of certain
nds without any " special application " to him
determine the rates of rent, any proceedings
gardmg the rates of rent are inadmissible.

iowDY t'. PooRUN Singh

W. R. 480

41.

-Resistance to measurement

Jitght to intervene— Intermediate tenant— Ben

i"). The fact of a measurement and jamabandi
ving been effected under the provisions of Ben- i
1 Act VI of 1862, s. 10, cannot deprive an inter- |

MEASUREMENT OF LANDS— ro«<<?.
mediate tenant of the right of intervening under
Act X of 1859, s. 77, nor is the intervenor de-
prived of that protection, even though Act X no
longer exists. Mudhoo Soodux Shaha v. Gopal
Shaikh 22 W. R. 508

42. Interference by

third party— Duty of Collector— Bengal Rent Act,
1869, s. 38 (Beng. Act VI of 1862, .s. 10). Where
the progress of a measurement under s. 10, Bengal
Act VI of 1862, is interfered with by a third party
claiming the land, the proper course for the Collec-
tor is to hold his hand, leaving it to the parties
to seek their remedy in the Civil Court. He can-
not, however, make any order which will prevent
the intervenor coming uncer .s. 77, Act X of 1S.59.
Vv'iSE V. Bansee Shaha . . 16 W. R. 51

43. Objections to measurement

—Be.igal Rent Act, 1869, s. 38— Power of Collector
in dealing with objections io measureme/it. Quiere :
After having commenced proceedings under s. 38
of Bengal Act VIII of 1869, has a Collector power
to refer some of the objections taken to one Deputy
Collector and some to another ? O.med Alt r. Xrr-
tyaxund Rov . . . . 24 W. R. 171

44.

Bengal Rent Act,

IS69, s. 38 (Beng. Act VI of 1862, s. 10)— Objections
to measurement proceedings. Where a measure-
ment under Bengal Act VI of 1862 was completed
without any objections having been made to it
by the raiyats while in progress, it was held that it
was not competent for the Judge in appeal to set
aside the proceedings on objections made subse-
quently. GoLUfK Kishore Acharjee r. Kesha
Majhee 15 "W. R. 23

45. Measurement of

chur lands according to agreement — Effect of error
as distinguished from fraud — Omission to object to
measurement at time it ivas taken. A superior
owner of chur land, and his tenants, who iicld it
in " howladari " tenure, agreed, with reference to
alluvion and diluvion, that the chur should be
measured from time to time, on notice, and that,
unless the tenants should give a separate " daul
kabuliat " for the land found to be accreted, the
superior owner should take po.ssession of it. A
measurement by the superior owner was made
on notice t7 the tenants and bond fule ; but it was
incorrectly made, — the tenants, however, raising
no objection at the time. They afterwards, when
a suit was brought against them by the sujierior
owner for possession of alleged accreted lands,
set up the defence that the measurement had been
made in their absence and was incorrect. Held,
by the Privy Council, that the tenants could not
defeat the suit merely on the ground of the incor-
rectness of the measurement, there being no fraud ;
but that they were not entitled to ask the Court
to decide what the amount of the pro|K'rty was
which the plaintiff was entitled to recover. Ali-
MUDDiN V. Kali Krishna T.\gore

I. L. R. 10 Gale. 895

46. Measurement of waste

lands— Sen^ai Rent Act, 1S6S, s. 3S — Bengal

( 8191 )

DIGEST OF CASES.

( 8192 )

MEASUBEMEWT OF JjAlilBS—ccmtd.
Civil Courts Act ( VI of 1S71), s. 22— Appeal. An
application for the measurement of a whole estate
under s. 38 of Bengal Act VIII of 1869 cannot be
granted where waste lands in that estate have been
brought into cultivation by various raiyats, and the
landlord is unable to ascertain which of the raiyats
have appropriated such waste lands as part of their
jotes. Before a measurement can be ordered under
that section, it is necessary to establish by evidence
the facts set out in the petition for measurement
and to show that the lands sought to be measured
are known, but that the tenants liable to pay rent
in respect of such lands are unknown. Lalla
Chedi Lal v. Ramdhuni Gope

I. L. R. 13 Gale. 57

47. Measurement of chur

lands — Accretion to tenure — Measurement made
in absence of tenants — Notice. Where a kabuliat
stipulated that on the accretion to a certain howla
of any new cultivable chur, a fresh measurement
should be made of the chur and howla, and that
excess rent should be paid for the excess land at a
stipulated rate up to five drones, and at purgannah
rates for the residue : in default thereof rent to be
realized according to law, or service made on the
tenants of a notice " requiring them to take a
settlement of the excess land, and to file a kabuliat
and fixing the time at fifteen days," otherwise the
excess land to be settled with others, — the kabuliat-
dar measured the howla and accreted without no-
tice to the tenants and in their absence, then served
on the tenants a notice thereof, and of the increased
rent demanded, requiring them to appear within
fifteen days and file a kabuliat for the said amount
and rent,' or that he would take khas possession.
In a suit, amongst other things, for assessment
of rent of the excess land : — Held, that the tenants
were not bound by the measurement made by the
kabuliatdar in their absence. Ram Coomab Ghose
V. Kali Krishna Tagore

li. R. 13 I. A. 116 : 1. L. R. 14 Gale. 99

48.

Procedure — Inquiry and evi-

dence as to inahility to ascertain tenants — Beng. Act
VIII of 1869, ss. 3S, 39— Appeal from order-
Separate appeal. The Court to which an appli-
cation under s. 38 of Bengal Act VIII of 1869 is
made on the ground that the applicant is unable
to ascertain who are the persons liable to pay rent,
ought not to make an order in his favour except
upon inquiry and proof of his alleged inability.
Where an order has been passed by the Civil Court
under s. 38, and the Collector has upon that order
made his decision, raiyats aggrieved by the decision
ought not to appeal jointly, but separately under
s. 39 of the Act. 3Iahor)ud Bah'idoor Mojoomdar
V. Bajkishen Singh, 10 B. L. E. 40 note : 15 W. E.
522, followed. Laloo Sibkak v. Jogut Kishore
AcHAEJEA . . . . 13 C. L. R. 203

49.

Proof of conduct

of proceedings in accordance wilh Act — Bengal
Rent Act, 1869, s. 38 {Beng. Act VI of 1862, s. 10)
— Proceedings of revenue officers — Per Jacksok, J.
— The High Court will not hold any person bound by

MEASUREMENT OE LANDS— confci.
the finding specified in Bengal Act VI of 1862, s. 10
unless it is shown beyond a doubt tliat the proceed
ings of the revenue officers referred to have beei
conducted in strict accordance with the terms o
that section. Dinobtjndhoo Chowdhry v. Dixo

NATH MOOKEEJEE . . 19 W. R. \Qi

50. Notice— Baigu

Eent Act, 1869, s. 38 — Ex parte orders — Proceed
ings for measurement of land. In proceeding
under s. 38 of the Bengal Rent Law, Act VIII o
1869, the Collector should, as a rule, pass no orde
ex parte without previously giving timely notice ti
the other party or parties sought to be affected b-
the order. In the matter of the petition o
Protap Chunder Ghose. Kally Churn Dutt v
Protap Chunder Ghose

I. L. R. 8 Gale. 848 : 12 G. L. R. 4C

51.

Notice — Mea

surement of lands in order to enhance — Notice of er,
hanceme7it — Act X of 1859, s. 26. An under-tenac
or raiyat is not bound by measurement under Ac
X of 1859, s. 26, made in his absence, unless he ha
received notice. Jadub Chundar Halder i
Etawaree Lushkur . . . Marsh. 49i
Jadub Chunde
2 Hay 59i
— Notice — Khasr

s.c. Etwaree Luskur v.
Haldar ....

52.

or appraisement of land — Dannabandi tenant — Pr
sence of tenant — Notice to tenant of khasra. In
suit for rent, where the quantity of lan(^ for whic
rent is claimed is in dispute, and the landlord pn
duces as evidence a khasra or appraisement of tl
land, it is not necessary for him to show that tl
estimate was drawn up in presence of the defendai
and was acknowledged by him ; it will be sufiicie!
if the defendant (a dannabandi tenant) had notic
when the khasra was about to be made. HuRi
Narain Singh v. Beljeet Jha . 24 W. R. 12

53. Attendaroce

witnesses — Inquiry — Bengal Eent Act, 1S6
ss. 38, 40 — Order that tenures have lapsed. T)
Collector, in proceedings for measurement of lam
under s. 38 of Bengal Act VIII of 1869, cannot :
said to have made a " due inquiry," and therefo
should not make an order under that section th
the tenures have lapsed, until he has made use >
all the powers given him by s. 40 in order to procu
the attendance of witnesses. Madhub Doss

JOGENDRO NaTH RoY

I. L. R. 6 Gale. 673 : 8 G. L. B. J

54. ■ Eight to app'

—Bengal Eent Act, 1869, ss. 38, 39. According
the procedure prescribed in Bengal Rent Act VI
of 1869, ss. 38 and 39, until the Collect
has entered upon his inquiry there is but one pai
concerned, and no proceeding in the shape of a si
or appeal can find place until after the Colled
has completed his measurement and reco
Crowdy v. Goburdhun Roy . 22 W. B. 4

55. Appeal — Bengal Eent J

1869, s. 38 {Beng. Act VI of 1862, s. 10) —Obj
tioii to measurement, time for. In order to obj'

( 8193

DIGEST OF CASES.

( 8194 )

MEASUREMENT OF -LAUDS— contd.

J the proceeding of the Collector under s. 10 of
ist VI of 1862, the proper ccmrse for the raiyat is

0 appeal to the District Judge, and not wait un-
,il the zamindar brings a suit for arrears of rent on
lie basis of the rate fixed by the Collector. Hurky

ANKUR PaTWARI V. KaDHA ChOWDHOORY

25 W. R. 346

56. Decision of Collector— i?c-

■ ih^ideriition of order — Rigid of appeal The deci-

ni the Collector referred to in s. 39 of Bengal

\T1I of 1869 must be taken to include any

^ici made under the preceding section in the

purse of proceedings before him, and the provisions

the latter section for obtaining a reconsideration

j" any order does not deprive any one of the right

i appeal. Rashbehary Ghose v. Barroda Pro-

! D MOOKHOPADHYA . . . 7 C. L. R. 380

-67. Standard of measurement —

,:ngal Rent Act, 1S69, s. 41 [Beng. Act VI of 1SG2,
'11). Under s. 11 of Bengal Act VI of 1862, the
lindard pole of the pergunnab is the standard to be
;ed in the measurement of lands sought to be
Isessed either under kabuliat or otherwise. Mack-
TOSH V. Watsox , . 3 W. R., Act X, 123

,58. Bengcd Rent Act,

69, s. 41 — Standard pole of measurement. The
.jindard pole of measurement alluded to in s. 41
;ist mean a standard officially known, i.e., known
; the Collector. Shetul Shaikh v. Hills

1 24 W. R. 184
159. Power of Col-
dor. The Collector is the depository of the stan-
■ -l pole of each pergunnab ; and it is exclusively

:n his province to declare what the standard of

. r>ole is. Tarucknath Mookerjee v. ]Meydee

^WAS . . . . 5 "W. R., Act X, 17

MEASUREMENT OF LANDS— concW.

160.

Power of Col-

''or to determine standard of measurement — Ben-

' Rent Act, 1S69, s. 41 {Beng. Act VI of 1S62,

11). In an application for assistance to measure

land of a raiyat under s. 9, Bengal Act VI of

^. the Collector has no power under s. 11 to fix

what pole the measurement is to be made, but

• questions are to be reserved for after-proceed-

when any action is taken upon the result of

measurement. Rajianatii Rakhit r. Mf-

AM Paramakik . . 3 B. L. R. Ap. 63

• RoMANATH Rakhit v. Dhookiiee Sham
■VA 11 W. R. 510

-• ■ _ Pozver of Col-

—Bengal Rent Act, 1S69, s. 41 {Beng. Act VI

•'i'2, s. 11). The Collector has no jurisdiction

Application by the zamindar under s. 9, Bengal

'■ I of 1862, for assistance to measure the holding

- raiyat, to fix the standard of the pole with

li the land is to be measured. Semhle : If the

! -ation had been under s. 10 of the Act, the

I !■ ctor would have had jurisdiction to declare

'' length of the standard pole. Braja Kishor

N V. Kasim Ali . .3 B. L. R. Ap. 78

■ c. Brojo Kishore Sein v. Kassim Ali

11 W. R. 562

VOL. in.

62.

Power of Col-

lector—Bengal Rent Act, 1S69, s. 41 {Beng. Act VI
of 1S62, s. 11). Per Kemp, Phear, Mitter, and
Hobhouse, J.I. — When the right of a proprietor to
make, under s. 9, Bengal Act VI of 1862, a mea-
surement of a tenure is disputed, solely on the
ground that the pole with which the measurement
is attempted to be made is not the standard pole of
measurement of the pergunnab, as provided in
s. 11, and the parties are at issue as to what is the
length of the standard pole, the Collector has juris-
diction to inquire into and decide as to the true
length of the standard pole. Couch, C.J., and
Bayley and Jackson, J J. (contra). Maxmohixi
Chowdhraix v. Premchaxd Roy

6 B. L. R. 1 : 14 W. R. F. B. 4

63.

Power of Judge

on appeal. A Judge on appeal has power under s. 9,
Bengal Act VI of 18^2, s. 9, to declare by what
standard measurements are to be made. Mackix-

TOSH V. KOYLAS CnrXDER ClIATTERJEE

W. R. 1864, Act X, 59

64.

■Bengal Rent Act,

1S69, s. 41 {Beng. Act VI of 1S62, s. 11)— Measur-
ing rod of tuppah. S. 11, IBengal Act VI of 1862,
does not preclude the use of the standard measuring
rod of a tuppah. Surbanund Pandey v. RrcniA
Paxdey . . . . W. R., Act X, 32

MED Ali.

taking pawn of, from soldier-

See Army Discipline Act, 1S81. s. 15'">.

I. L. R. 10 Mad. 108

MEDICAL ATTENDiiNCE, FEES FOR.

See Civil PROCEorRE Code. 1SS2. s. 43.

I. L. R. 29 All. 256

Medical Officer.

— Suit to recover fees

for medical attendance— Fees partly secured by a
promissory note— Separate suits upon the promis-
sory note and for the unsecured balance— Latter
suit barred. A, a doctor, agreed with B to
accompany B to Hardwar as bis medical atten-
dant on a fee of RlOO a day. After seven
davs B cave A a promissory note for B.1OO
representing seven days' fees. B, who was
a vakil, also promised to assist A professionally in
certain liticration. B, however, died before he
could fulfil' his aureement to render professional
services. .-1 sued B's son upon the promissory note
first, and subsequently in a separate suit for the
balance of his fees for attendance at Fardwar
under the alleged agreement and for fees for later
attendance at Benares. Held, that the second suit
was barred by the provisions of s. 43 of the Code of
avil Procedure «o far as the fees for attendance at
Hardwar were concerned, though not in respect of
the other fees claimed. PREOnath Mukerji i^
Bishnath Prasad (1906) . 1. L. R. 29 All. 256

12 E

( 8195 )

DIGEST OF CASES.

( 8196 )

MEDICAL EVIDENCE.

See Evidence — Criminal Cases — Medi-
cal Evidence.

MEDICAL EXAMINATION.

Sfe. Hindu Law — Marriage — Restraint
ON, OR Dissolution of, Marriage.

L L. R. 1 All. 549

MEDICAL JURISPRUDENCE.

Homicide or death

from epilepsy — Scratches on the neck. Where
amongst other marks noticed on the body of the
deceased, there appeared certain scratches on the
front part of the neck running downwards : — Held,
upon a consideration of medical authorities, that
though in the opinion of the Civil Surgeon it was
probable that the deceased met with his death
from throttling, the alternative theory was equally
probable that the scratches were self-inflicted
whilst the deceased was labouring under an epileptic
or other fit and of which he died. Having regard
to this as also to the nature of the evidence ad-
duced in support of the prosecution, the accused
who were charged with murder were acquitted.
Emperor v. Gayanath Das (1009)

13 C. W. N. 622

MEDICAL OEFICER.

See Medical Attendance, fees for.

Remuneration, for professional

attendance. The amount of remuneration for the
professional attendance of a msdical officer on the
family of a public servant in the absence of an ex-
press agreement should be determined with refer-
ence to the circumstances in each case, and the
principle adopted by the Judge in estimating the
amount, that reference must be had not only to
present means, but to prospects, without consider-
ing other matters, was not correct. Held, under
the circumstances of the case, that one-fifth of the
monthly income of the defendant was the fair
amount to which the plaintiff was entitled for his
professional attendance for the year. Rawlins
V. Daniel .... 2 'Agra 56

MELA, PROFITS OF.

See Cess, Assessment of.
11 C. W. N. 1053 ; I, L. R. 35 Calc. 82

MELWARAM.

\Civil Procedure Code,

•5. 266 — A herediteiry eiUoicance out of melicaram
of lands attachable. A hereditary grant of an
allowance of paddy out of the melwaram of certain
land is not a right to future maintenance such as is
exempted from attachment under s. 26fi of the
Code of Civil Procedure. Vaidyanatha Sastrial
V. Eggia Venkatarama Dikshitar (1907)

1. L. R. 30 Mad. 379

MEMORANDUM OF AGREEMENT.

See Stamp Duty . I. L. R. 35 Calc. Ill

MEMORANDUM OP APPEAL.

See Appeal.

See Court-fee . I. L. R. 33 Calc. 1

See Limitation, Plea of.

I. L. R. 33 Calc, 94

MERCANTILE USAGE.

See Custom . . 7 Moo. I. A. 26
I. L. R. 11 Mad. 45
I. L. R. 14 Mad. 42

BOOKED AS 'LUG

MERCHANDISE
GAGE.'

loss of -

See Railway Company.

I. L. R. 36 Calc. 81

MERCHANDISE MARKS ACT (IV 0
1889).

See Cause of Action 10 C. W. N. K

See Trade Mark.

Boots are goods with

the meaning of the Act — Penal Code {Act XLV
1860), s. 4S2 — Ingredients of offence tinder. Boo
are " goods " within the meaning of the Mercha
dise Marks Act (IV of 1889). Kanai Das Bairqgi
Radha Shyam Basack, I. L.B. 26 Calc. 232, follow..
Where a spurious publication by K of a book by
is identical with the genuine publication of A t
description in the title page of the former that it;
the book of A, is not, if it is a trade descriptwi
untrue in a material respect as regards the goods;)
which it is applied. To constitute an offence uiKtr
s. 482 of the Penal Code, it must be shown that &
goods were marked in a manner reasonably c|-
culated to cause it to be believed that they were e
manufacture or merchandise of, or that they ;•
longed to a person whose manufacture or merchi-
dise they were not or to ^vhom they did not beloc.
If this is shown, it will be on the accused to sh?
that it was not done to defraud any one. Ba<; ■
valuNaidu v. Sundramurthi Mudali (1!'"

I. L. R. 31 Mad.

s. 2, cl. 4:— Penal Code {Act XL,

1860), s. 486— Selling books with counterfeit
perty mark— Goods. Books are the subjc'
trade, and are goods within the meaning o ;
cl. (4), of the Indian Merchandise Marks Act (i
1889) ; therefore, when a person sells books wi
counterfeit property mark, he commits an ofi
under s. 486 of the Indian Penal Code. Kanai
Bairagi v. Radha Shyam Basack

I. L. R. 26 Calc.

ss. 4, 6—

.See Trade Mark. L,

I. L. R. 26 Bom. f*

ss. 6 and 7 —

See Criminal Pbocedtjee Code, s. 4
I. L. R. 23 Calc.

See Trade ^ek. I. L. R. ^\^^^-%

( 8197

DIGEST OF CASES.

( 8198 )

MERCHANDISE MARKS ACT (IV OF

1889)— eoncld.

8 10, 11—

See Detention of Goods.

I. L. R. 34 Cale. 511

MERCHANT SEAMEN'S ACT (I OF
1859).

See Magistrate, Jurisdiction of

Special Acts — Merchant Seamen's

Act, 1859 . . 4 Mad. Ap. 23

7 Mad. Ap. 32

See Merchant Shipping Act, 1854. s. 243-

8 Mad. 85

See Shipping Law — Maritime Lien.

2 Hyde 273
6 Bom. O. C. 138

17 & 18 Viet., c. 104, ss. 243

,cls. 1 and 2), 288— Jlerchant Shipping Act,
\S54^-43 <b 44 Vict., c. 16, s. 10— Merchant Sea-
'len's {Payment of Wages and Rating) Act, ISSO —
•mprisonment for desertion. The amendment of
:is. 1 and 2 of s. 243 of 17 & 18 Vict., c. 104, by 43
•, 44 Vict., c. 16, s. 10, does not affect the liability
if seamen in Calcutta to imprisonment for offences
'nder s. S3, cl.«. 1 and 2, of Act T of ISof). Bruce
. : Ceonin . . . I. Ii. R. 12 Cale. 438

s. Ill—

Evidence — Criminal Cases — Deposi-

1 Hyde 195

ss. 201, 202—

-See Shipping Law — Certificates.

1 Mad. 270

[ERCHANT SHIPPING ACT, 1854 (17
& 18 VICT., C. 104).

i^ ss. 24, 2Q—Applicdbilitij of Act to

\dm as regards the rules of measurement — Act

"''of 1S3S, ss. 4, 13— Act X of 1S41— Temporary

■"lis to open vessels — " Strake," meaning of

rni — Rules of measurement made by the Marine

'linent in 1S73. The Merchant Shipping Act

^"4 (17 & 18 Vict., c. 104) applies, as regards

lies of measurement, to the whole of" Her

ty's dominions, and is law in India so far as

not superseded by local legislation ; Acts XIX

'■S and X of 1841 do not conflict with it. The

■d was the owner of a vessel registered under

"vIX of 1838, as being of 163 i^5%tons. In the

'■ of a voyage the vessel's bulwarks were raised

' additional structure of a temporary character

0 purpose of protecting the cargo from the sea.

iir this voyage the vessel was measured by a

-uard inspector who, following the rules of

iiement issued by the Marine Department in

•vhich provide that the measurements must be

from the top of the highest strake, temporary

aiTwise, found an increase of 27 tons in the

■ithen of the vessel by reason of the temporary

picture. This change in the burthen of the vessel

•J^ins! been made, the accused was prosecuted.

MERCHANT SHIPPING ACT, 1854 (17
& 18 VICT., C. 104:)—contd.

ss. 24, 26— eoncld.

under s. 13 of Act XIX of 1838, for omitting to re
gister the vessel anew, and obtain a fresh certificate
of registry under s. 4 of the Act. The accused was
convicted and sentenced to pay a fine of R33-12.
Held, reversing the conviction and sentence, that
there being no express provision applicable to tem-
porary additions to open vessels either in the In-
dian Acts (XIX of 1838 and X of 1841) or in the
Merchant Shipping Act of 1 854, the rules of measure-
ment issued in 1873 by the Marine Department
were ultra vires, so far as they insisted on the mea-
surement being taken from the top of a temporary
addition to the upper strake. Held, also, that the
additional structure put up by the accused, being
only of a temporary cliaracter, to bo removed at the
end of the voyage, did not come within the meaning
of " strake," which is a structural portion of the
vessel defined as a " continuous line of planking or
plates on a vessel's side reaching from stem to
stern." Queen-Empress v. Jamudin.

I. L. R. 14 Bom. 170

ss. 43, 66—

Non-registration of ship-

Letter creating charge on ship. A letter, purport-
ing to create a charge on a ship, was not registered
as a mortgage under the Merchant Shipping Act.
The ship not having a British register, it was held
that the letter created a valid charge on the ship.
Shib Chunder Doss v. Cochrane

Bourke O. C. 388

2. Attachment— .l/or<5r«^ee — Power

of sale. An attachment on behalf of the rights of
' the mortgagor of a ship will not debar the mort-
! gagee from his power of sale under the Merchant
Shipping Act. Ahmed Mahomed v. Auhin

1 Ind. Jur. N. S. 95

3. - Shipping Master, power of —

Discharge of seamen with consent of captain and
men — Regulations of Board of Trade. Where the
captain of a ship consents to the discharge of a sea-
man, who also desires to be discharged, the Shipping
Master has no discretion in the matter, but is bound
to sanction the discharge of the seaman inuler the
provisions of the Merchant Shipping Acts of 1S54
and 1862. and the Regulations of the Board of
Trade. Reg. v. SiiiPriNo Master ov Calcutta
Ind. Jur. N. S. 371

. ss. 53, 55—

See Ship, Sale of.

2 Ind. Jur. N. S. 251
1 Ind. Jiu'. N. S. 263

8. 207 — Discharge of seamen — Power

of Shipping Ma4cr. Bombay. The Shipping Mas-
ter of Bombay has a dl-cretion vested in him of re-
fusing to sanction the discharge of a seaman shipped
from a foreign port whose articles have not expired,
though the seaman consents to sucn discharge. In
re Lewis .... 6Bom.O. C.42

12 E 2

( 8199 )

DIGEST OF CASES.

( 8200 )

MBRCHAWT SHIPPING ACT, 1854 (17
& 18 VICT., C. 104)— ccncld.

s. 243-

8ee Offexce on High Seas.

I. L. R. 21 Cale. 782

Ad I of 1S59, s. S3,

cl. 5 — Disobedience of commands by sailors.
The Merchant Shipping Act, 1854, 17 & 18 Vict., c.
104, s. 243 (6), has no application to British India.
The Act applicable to cases of continued wilful
disobedience of lawful commands by sailors is Act
I of 1859, s. 83, cl. 5 (c). In the matter of the
petition of Reardon . . .8 Mad. 85

s. 267—

See Offence on High Seas.

I. L. R. 21 Calc. 782

Trial of British sea-
men for offences committed on British ship on the
high seas — Procedure at such trial — Murder — Ad-
miralty Courts — British seamen on British ship —
Letters Patent, High Court, 1865, cl. 26— Case
certified by Advocate-General. A British seaman
who stood charged with the murder of a fellow-
sailor on board a British ship on the high seas
was tried by a Judge of the High Court under
the Code of Criminal Procedure ; the chief evidence
against the prisoner being that given in the deposi-
tions of the captain and second officer of the ship
taken on commission ; this e%"idence was admitted
in evidence, and the prisoner was convicted and
sentenced. It was objected that, under s. 267 of the
Merchant Shipping Act of 1854, the prisoner ought
to have been tried in every respect as though the
trial had been held at the Central Criminal Court
in London, and that the law of evidence to be ap-
plied was that prevailing in England. Held, on a
case certified bj' the Advocate-General under cl.
26 of the Letters Patent, that the prisoner had been
properly tried according to the ordinary practice of
the High Court, and that the evidence was admis-
sible against him. Queen-Empress v. Barton
I. L. R. 16 Cale. 238

MERCHANT SHIPPING ACT, 1855 (18

& 19 VICT., C. 91).
- 2 —

See Offence on High Seas.

I. L. R. 21 Calc. 782

MERCHANT SHIPPING ACT (25 & 26

VICT., C. 63).
s. 3—

iS'ce'Smp, Sale of.

I. L. R. 21 Mad, 395
(IV of 1875), ss. 3, 5, 6, 7, and

18 — Jurisdiction, Admiralty Courts — Board of
Trade certificates — Incompetency or misconduct of
holder — Statement of grounds. The powers con-
ferred on Courts of Admiralty by s. 5 of Act IV of
1875, of investigating charges of incompetency or
misconduct against the holders of Board of Trade

MERCHANT SHIPPING ACT (25 & 26
VICT., C. QZ)—concld.

s. 2—concld.

certificates, is totally distinct from the power o;
enquiry into wrecks or casualties conferred on tribu
nals by the same Act. It is not correct to say thai
all the sections in Ch. TI of Act IV of 1875 sub
sequent to s. 5 apply only to inquiries under thai
section ; nor that the Courts mentioned in that sec
tion are the only Courts that can cancel a Board o
Trade certificate, or report so as to enable the Loca
Government to cancel its own certificate. A specia
Court inquiring into a casualty under s. 3 has powe
if all the provisions of the Act are duly compile
with, to cancel a Board of Trade certificate, or v
make a report to the Local Government, upo
which the (Government may cancel its own certi
cate under s. 18. In investigating charges i
incompetency or misconduct under s. 5 of Act I
of 1875, it is not necessary, in order to give'tl
Court jurisdiction, that such incompetency c'
misconduct should have occurred on or near tl'
coasts of India. What is a sufficient "statemei
of grounds ' ' within the meaning of ss. 6 and 7 <
ActIV of 1875 ? In re the " Ava " and n
" Bsenhilda." Government of Bengal
Whittard

I. L. R. 5 Calc. 453 : 5 C L. R. -SC

— s, 5 — Proof of Board of Trade cer

ficate. An investigation under Act IV of 1875, s.
into charges of incompetency or misconduct cann
proceed unless the person whose competency or co
duct is to be inquired into has been proved to be t
holder of a certificate granted by the Board ,
Trade In the matter of a colliion hetwein p
" Ava " ani the " Brenhilda."

I. Ii. R. 5 Calc. 568 : 5 C. L. R. Sfc

MERCHANT SHIPPING ACT (57 & \
VICT., C. 60).

ss. 24, 57— No Bill of sale necessf

where vendor sells only equitable interest. 'Jp
purchaser of an equitable interest in a ship can P
to establish his right to such interest and the incop
thereof without a registered bill of sale. S.*
of the Merchant Shipping Act of 1894, will
makes a bill of sale compulsory, does not appl3H>
transfers of equitable interests, which are goverd
by s. 57 of the Act. Ramanadhan Chett--
Nagooda Maracayar, I. L. R. 21 3IaJ.
dissented from. Chateauneuf v. Capeyrou, L-
7 A. C. 127, followed Alagappa Chett\
Chidambaram Chetty (1906)

I. L. R. 29 Mad.

MERCHANT SHIPPING ACT (V
1883).

5ee Evidence I. L. R. 35 Cale.

MERCHANT, LAW OF. I

^ec English Law . . 13W. R.&O

( 8201 )

DIGEST OF CASES.

( 8202 )

MERGEE.

See Award . I. L. E. 33 Calc. 88
See Bengal Tenancy Act, s. 22.

9 C. W. N. 249

See Execution of Decree — Application
FOR Execution and Powers of Court.
I. L. E. 7 Calc. 82
See Landlord and Tenant.

I. L. E. 34 Calc. 104
See Landlord and Tenant — Transfer
BY Landlord. I. L. E. 24 All, 487
See Limitation Act, 1877, Art. 47.

I. L. R. 18 Bom.|348
-See Mortgage— Marshalling.

I. L. R. 13 Mad. 383
I. L. R. 15 Mad. 268
See Mortgage — Redemption — Redemp-
tion otherwise than on Expiry of
Term . I. L. R. 14 Bom. 78

See Mortgage — Sale of Mortgaged
Property — Money-Decrees on Mort-
gages . . I. L. R. 9 All. 23
See "■ Mortgage — Sale of Mortgaged

Property — Purchasers.
See Mortgage — Sale of Mortgaged
Property — Rights of Mortgagees.

1. L. R. 16 Mad. 94
-See Patni Tenure.

I. L. R. 28 Calc. 744

See Sale for Arrears of Revenue —
Incumbrances — Act XI of ISoO.

I. L. R. 30 Calc. 1071

See Right of Occupancy — Transfer of
Right . I. L. R. 21 Calc. 869

5ee Will . I. L. R. 31 Mad. 283

of toi-t in felony —

See Evidence . 13 C. W. W. 501

1. Doctrine of merger— .4japZ?ca-

■liy of, io inohis-iil of India. Quaere : Whether
• doctrine of merger applies to lands in the mot'us-
in this country. Woomesh Chunder Goopto
RajnarainRoy . . 10 W. R. 15

It docs not. Savi v. Punchanun Roy

25 W. R. 503

2. Collateral securities — Promis-

"/ note — Morlgaye — Eegisfration Act (XX of

' '*), •'. 52. B executed and delivered to A a

unissory note, which was specially registered

I'ler s. 52 of Bengal Act XX of 1866. On the due

'e of the note, A renewed the note in considera-

n of £'s securing the debt by assigning to him, by

^ lyof mortgage, his (5's) interest in certain landed

! ■ '>perty. Held, that .-1 could proceed in a summary

' iy upon the note, notwithstanding the mortgage.

' AMGOPAL Law v. Blaquiere

1 B. L. R. O. C. 35

MERGER— fo«/^/.

3. _^ Purchase by patnidar of

zamindari rights — Ccsnation of rent as patnidar.
The patnidar of a mchal which formed a portion of a
zamindari purchased the zamindari rights in the
mehal. From the date of his purchase he paid no
rent as patnidar. Held, that he could not sot up his
title as patnidar against his zamindari co-sharers in
a suit brought bj'- them for contribution. Pho-
suNNO Nath Roy v. Jogut Chunder Pundit

3 C. li. R. 159

4. Merger of securities. On the

5th September 1874 R. a Hindu, and his sons bor-
rowed Ro,000 from T', and moi-tgaged to him cer-
tain land, items 1,2, and .3. On the" 7th Scptemb*er
1874 V borrowed R5,000 from B N, and mort-
gaged his rights in items 1 and 2 and land of his own
I toi?A'. In 1877 i? A' bought at a sale in execution
of a decree against R the share of R in the said items
1 and 2 subject to the mortgage created by R on 5th
September 1874, and to another mortgage created
by R on the 1 1th January 1875. In 18S5 R N sued
the sons of R and V to recover principal and interest
due under his mortgage-bond. V pleaded that, as
R N had bought i?'s share in items 1 and 2, sub-
ject to the mortgages created by him, R N's rights
as mortgagee «ere merged in his rights as purchaser.
Hell, that the claim of R N was not mersred. "\'en-
KATA V. Ranga . 1. li. R. 10 Mad. 160

5. Patni interest, merger of, in

that of zaminda,r— Co-sharers — Rent, suit for —
Land Registration Act (B<ng. Act VII of 1S7H),
6'. 78. The doctrine of merger does not apply to the
case of a patni interest coming into the same hands
as the zamindari interest. A and B, two joint
zamindars, having brought a patni within their
zamindari to sale for arrears of rent, piirchased it
themselves. During the existence of the patni a
dar-patni had been created, of which C was in pos-
session. A instituted a suit acainst C to recover
arrears of rent of the dar-patni for a period of three
years, setting up his claim thereto both as zamindar
and patnidar, and joined B as a pro formA defend-
ant, alleging that he was away from home at the
time of the institution of the suit, and could not
therefore join as a co-plainti.*!. It appeared that
A's proprietary interest was registered under the
provisions of Bengal Act VII of 1876 (the Land
Regi-^tratiouAct), but that B's interest had not
been so registered. Prior to the suit coming on for
hearing, B was transferred from the category of de-
fendant in the suit into that of co-plaintiS. In
answer to the suit, C contended that the non-regi-s-
tration of B's interest precluded the plaintiffs from
maintaining the suit at all, A's share not being
specified, having regard to the provision of s. 7S of
the Act. The lower Appellate Court having dis-
missed the suit on this latter ground (among
others) : — Held, on second appeal, that the right of
the plaintiffs as patnidars did not merge in their
right as zamindars, and that the Land Registration
Act had therefore no application to the case, the
plaintiffs being entitled to maintain the suit qua
patnidars. JiBANri Nath Khan v. Gokool
Chundeb Chowdby . I. L. R. 19 Calc. 760

( 8203 )

DIGEST OF CASES.

( 8204 )

MERGER— conW.

6. Mukarari and shikmi in-
terests— Purchase of mukarari interest by shikmi
temire-holder — Mortgage — Acquisition of subordi-
nate tenure by mortgagor — Mortgagee's right to
acquisition — Sale of mortgaged property — Purchas-
ers— Sale in execution of decree on mortgage — Pur-
chaser's right to accessions — Transfer of Property
Act {IV of 1SS2), s. iO, s. Ill, cl. (d). A, on
behalf of himself and his four brothers, acquired
the shikmi interest in a chuck, which at the time
Mas subject to a mukarari lease. A and two of
his brothers mortgaged the chuck, and sub-
sequently A on behalf of himself and his four bro-
thers acquired the miikarari interest in the chuck.
It was'doubtful whether the mukarari lease was a
lease for agricultural purposes or not. Held, that
whether s. Ill, cl. [d) of the Transfer of Property-
Act applied or not on the shikmi and the mukarari,
interests becoming vested at one time in the same
persons, the inukarari interest merged in the
iuperior tenure. Kishen Dutt Ram v. Mmniaz
Ali Khan, J. L. E. 5 Cede. 198, referred to. Held,
further, that, even if there was no merger, the
purchase of the mukarari was an accession to the
moi'tgaged property under s. 70 of the Transfer of
Property Act, and the purchaser of the chuck at
the sale in execution of the decree on the mortgage
was'entitled to ;, ths of the mukarari interest as well
as to thai of the shikmi interest. Kishen Duti
Sam v. Mumtaz Ali Khan, 1. L. R. 5 Calc. 19S ;
Shyama Charan Bhuttacharjee v. Ananda Chandra
Das, 3 C. W. N. 323, and Ajudhia Prasad v. Man-
Singh, I. L. R. 25 All. 46, followed. Sukja Nakain
Mandal v. Nanda Lal Sinha (1906)

I. li. E. S3 Calc. 1212

7. Mokurari inter-
est— Merger of mokarari interest in sujierior land-
lord's interest — Transfer of Property Act {IV of
1SS2), ss. 2, cl. (c), {d) ; 111, cl. [d). The original
owner of a share in a certain mouza granted a
mokarari of it to her grandson, W, conditional on
her daughter, F, enjoj'ing the usufruct of the
mokarari for life and sulosequently she sold to her
daughter her proprietary interest in the share.
Prior to the sale of the proprietary interest, but
subsequent to the grant of the mokarari and the
usufruct, the original owner and the mokararidar
mortgaged their Interest to R. On the 17th Sep-
tember 1892, the defendant purchased the moka-
raridar's interest in the share subject to the mort-
gage. On the 7th October 189S, R obtained a
decree in a suit brought on his mortgage' against
F, W and the defendant, and finally became the
purchaser of the proprietary and the mokarari in-
terest of the share at an auction sale. The defend-
ant, however, failed to exercise his right of re-
demption. In consequence of default made in
payment of the revenue, ^'s interest in the pro-
perty was sold on the 25th April 1899 under the
Revenue Sale Law, and was purchased by D. A
further default having been made by D, the
latter 's interest in the property was sold and the
plaintiff purchased the same. The plaintiff, there-
upon, brought a suit for khas possession and mesne

MERGER— concZi.

profits against the defendant who claimed the
mokarari interest under his purchase from W,
subject to R's mortgage : Held, that the moka-
rari merged in the proprietary rights in the hands of
R, and that the case was governed by the Transfer
of Property Act, s. Ill (a). Raja Kishendait Ran
V. Raja Mumtaz Ali Khan, I. L. R. 5 Calc. 198,
and Surja Narain Mandal v. Nanda Lai Sinha.
I. L. R. 33 Cak. 1212, followed. Jihanti Kath
Khan V. Gokool Chunder Chov;dry, I. L. R. 19 Calc.
760, and Promotho Nath Mitter v. Kali Prasanna
Chowdhry, I. L. R. 28 Ca'c. 744, discussed. Ulfat
HossAiNr. Gayani Dass (1909)

I. li. R. 3 Calc. 802

8. Cause of action, merger of

— Decree in civil suit for rent bars subsequent sum-,
mary proceedings under Rent Recovery Act by dis
tress — Retit Recovery Act (Madras Act VIII of
1865), s. 39. A cause of action merges by reason
of the judgment of a Court of record in a suit
brought on such cause of action and without the
judgment being satisfied. King v. Hoare, 13 M.
cfc ir. 494, referred to. A claim for rent is a single
cause of action although it may be recovered
either by distress or by suit, and when the land-
lord sues for the rent in a Civil Court, such claiir
merges in the judgment passed in such suit and car
no longer be distrained for under the Rent Recoverj
Act. Chinnappa Rowthan v. Fischer (1907)

I. L. R. 30 Mad. 49£

9. Lands in mofussil. It is a

least doubtful whether the doctrine of merger ap
plies to lands in the mofussil. Woomesh Chandra
Gupto V. Rajnarain Roy, 10 W. R. 15 ; Jibanti \,
Gokool, J. L. R. 19 Ca'c. 7>0, and Prosunno Nai.\
V. Jogut Chunder, 3 C. L. R. 159, referred ii
But even if it applied the doctrine as obtaining i
EnglaTid would not help the landlord in this cas(
and under s. 22 of the Bengal Tenancy Act, i
is only the occupancy right and not the holdin
itself which is extinguished. Jaicadul Huq v. Eui
Das, 1 C. W. N. 166 : s.c. I. L. R. 24 Calc. U
148 ; Ram Molan v. Kachu, 9 C. W. N. 249 : f.i
/. L. R. 32 CaJc. 386, followed. Lal MahomeJ
Saekae v. Jagir Sheikh (1909) '

13C. w. iT.e]

MESNE INCUMBRANCES.

See Madras Rent Recovery Act, ^
10, 41 . I. L. E. 27 Mad. 4'

MESNE PROFITS. Cc

1. Right TO, AND Liability FOR. . 82

2. Assessment in Execution and Suits

FOR Mesne Profits . . .82

3. Mode of Assessment and Calcula-

Limitation . . . . .8:

See Appeal to Privy Council.

I. L. R. 33 Calc. 12

See Attachment — Subject of Attac
MENT — Mesne Profits.

( 8205 )

DIGEST OF CASES.

( 8206 )

lESNE PROFITS— confrf.

See Civil Procedure Code, 1882, ss.

13, 43 . I. L. R. 31 Bom. 527
See Civil Procedure Code, 1882, s. 211.
See Civil Procedure Code, 1882, ss-

232, 244 I. L. R. 28 Mad. 64

See Contribution, Suit for.

I. li. R. 35 Gale. 303

See Court Fees Act (VII of 1870), s. 2.
I. L. R. 30 Mad. 32

See Court Fees Act (VII of 1S70), s. 11.
I. L. R. 33 Gale. 1232

See Decree — Construction of Decree

— MESNte Profits.
See Debutter . 10 G. W. N. 1000

6Ve Decree — Form of Decree — Mesne

Profits.
See Execution . . 12 C. W. M". 3

See Hindu Law — Gift.

I. li. R, 33 Gale. 23

See Hindu Law — Stridhan — Descrip-
tion and Devolution of Stridhan.
3 B. L. R. A. G. 121

See Interest — Miscellaneous Cases —

Mesne Profits.
See. Limitation Act, Sch. II, 1877, Art.

109.
See Mortgage — Redemption — Right of

Redemption . I. L. R. 28 Bom. 312
See Onus op Proof — Mesne Profits.
See Partition — Miscellaneous Cases.

6 C. W. N. 698

See Res Judicata — Matters in Issue.
I li. R. 25 Bom. 115

See Right of Suit — Mesne Profits.

1 Ind. Jur. O. S. 83
2 G. W. N. 43
3 G. W. N. 279

See Shebait, trespass by.

I. li. R. 35 Gale. 691

See Small Cause Court, Mofussil —
Jurisdiction — Mesne Profits.

See Specific Performance.

13 G. W. ]Sr. 669

See Transfer of Property Act (IV of
1882), ss. 92, 94 . I. L. R. 30 All. 36

decree for —

See Court Fees Act, s. 7.

13 G. W, N. 815

illegal putni sale —

See Limitation Act, 1877, Sen. II. Art.
109. . . 13 G. W. N. 15
remedy for recovery of—

See Civil Procedure Code, 1882, s. 244.
I. L. R. 31 All. 551

MESNE PROFITS^:on^rf.

— suit for—

See Bengal Tenancy Act, ss. 101 to
111 A . T. li. R. 28 Gale. 28

-See Civil Procedure Code, 188-?, s. .501.
6 G. W. N. 710

See Relinquishment of, or Omission
TO sue for. Portion of Claim.

5 B. L. R. 184: 187 note

21 W. R. 223

22 W. R. 424
25 W. R. 113

I. li. R. 3 AU. 543

.See Res Judicata — Causes of Action.

2 B. L. R. S. N. 16: 10 W. R. 486

Marsh. 93

9 W. R. 594

See Small Cause Courts, Mofussil —
Jurisdiction — Mesne Prof.ts.

2 N". W. 18

I. li. R. 18 Calc. 316

I. li. R. 22 :\Iad. 196, 196 note

See Special ok Second Appeal — Small

Cause Court Suits — Mesne Profits.

See Specific Relief Act, s. 9.

I. L. R. 24 Ail. 501

suit for, and for possession —

See Relinquishment of, or Omission to
SUE FOR, Portion of Claim.

5 N. W. 172

4 B. li. R. F. B. 113

L L. R. 9 Caic. 283

L li. R. 3 Ali. 660

I. L. R. 19 GaiC. 615

I L. R. 11 Mad. 151. 210

I. li. R. 17 Ail. 533

See Res Judicata— Relief not granted.

L L. R. 17 Gale. 968

I. L. R. 14 Mad. 328

I. li. R. 21 Calc. 252

I. li. R. 21 Ah. 425

,See Valuation of Sun— SnTs— Mesne

Profi'^s . Marsh. 165

W. R. 1864. 327

I. L. R. 17 Gale. 704

I. L. R. 15 Bom. 416

I. li. R. 21 Mad. 371

1. RIGHT TO. AND LIABILITY FOR.

1, Suit for partition and account

of right in joint estate. The sections of the
Code of Civil Proo.-dmo n-lrttinc: to iiiosne profits are
not applicable to a suit for partition or for account
of the proceeds of family estate in w hich a plaintiS
has no specific interest" until decree. Pirthi Pal
V. JowAHiR Singh . I. L- R- 14 Gale. 493
L. R. 14 I. A. 37

2, Right to mesne profits pre-
vious to partition— JoiH< family— Manager's

( 8207 )

DIGEST OF CASES.

( 8208 )

MESNE PROFITS— coH^fZ.

I. RIGHT TO, AND LIABILITY FOR— conU.

liability to account — Mesne profits subsequent to
partition, how recoversible — Civil Procedure Code,
18S2, s. 244— Eight of suit. Although, as a
general rule, no member of an undivided Hindu
family can have any claim to mesne profits previous
to partition, yet mesne profits may be allowed on
partition where one member of the family has been
entirely excluded from the enjoyment of the pro-
perty, or where it has been held by a member who
claimed to treat it as impartible, and therefore ex-
clusively his own. AVhere a decree for partition is
silent about mesne profits subsequent to the insti-
tution of the suit, a party is at liberty to assert his
right to such profits by a separate suit. S. 244, para.
2, of the Code of Civil Procedure (Act XIV of 18S2)
expresslv reserves such a riaht of suit. Bhiveav v.
SiTAEAM . . . iT li. R. 19 Bom. 532

Right to mesne profits^

Damages for being kept out of possession. Regard
being had to the constitution of the Courts of this
country which are Courts of justice, equity, and
good conscience, a decree-holder should be reim-
bursed damages for the time during which he is kept
out of possession by the wrongful act of another
party, whether his claim for subsequent damages be
made in the execution of the first decree or in a re-
gular suit. Kashee Nath Kooer v. Deb Keisto
Ramanooj Doss . . 16 "W. R. 240

4. Period for which

suit is pending. There is no objection to the award
of mesne profits or interest during the whole period
for which a suit is pending, however long that period
may be. Kakaji bin Ranoji v. Bapuji bin Ma-
DHAVEAV ... 8 Bom.. A. C. 205

Legal

Bight to sue for mesne profits. A party declared by
a final judgment to have the legal title and the right
to possession, is, so long as the judgment declaring
him to be the legal owner remains in force, the only
party Avho is legally competent to sue for mesne
profits. Khetteemonee Dossee v. Gopeemohun

Roy 1 Hay 178

s.c. Khettuemonee Dossee v. Gopeemohun
Roy .... 1 Ind. Jur. O. S. 83

6. • The right to sue

for mesne profits is not transferable. Duega Chun-
DER Roy v. Koilas Chunder Roy

2 C. W. N. 43

7. - Co-sharer " claim-
ing re-partition of his share. A co-sharer claiming j
re-partition of his share is not entitled to mesne pro- >.
fits unless so provided by the wajib-ul-urz. Chun- |
DER Singh v. Nieto . . . ,3 Agra 11

8. Co-sharers — Mort-
gage after foreclostire. A obtained a decree declar-
ing him entitled to possession under a mortgage of
one-third of the property in dispute, with mesne !
profits. B subsequently obtained a decree against
A and the other co-shkrers for possession of the
whole estate, with mesne profits, under another '

MESNE PROFITS— coK^cZ.

1. RIGHT TO, AND LIABILITY YOR—contd.

rnortgage ; but instead of taking full advantage (
his decree he received from all the co-sharers th
amount due to him on the original transaction, an
restored the property to them. Held, that A W8
entitled to recover mesne profits due to him undf
the original decree. Bisxoo Chundee Biswas i
Teoyluck Nath^Banerjee . 6 W. R. Mis. 2{

9. Co-sharers — Ej

cess land. Plaintiff and defendant and certai
others were co-sharers of an abad. Each agreed t
cultivate certain portions, and afterwards to gi\
up any excess land cultivated by him. Defendai
cultivated 399 bighas in excess of his sharij
Plaintiff sued him and got possession of the exce'.i
land on paj^ment to the defendant of a compenf 'i
tion for the expense of cultivation, and the
brought his suit for mesne profits. Held, that h
was not, under the circumstances, entitled t'
mesne profits. Deb Narayan Deb v. Kali Da
MiTTEE . 6 B. L. R. Ap. 70 : 14 W. R. 39

affirming on appeal Kalee Doss Mittee v. De
Naeayan Deb . . . . 13 W. R. 41

10 Persons not

actual possession — Right of suit. Held, that, whe;
the plaintiffs made over the management of the
lands to their bankers, but did not part with tl
property in the lands, even for a temjjorary perio(
they were entitled to maintain a suit for mesne pr
fits against the defendants who trespassed on ar
occupied the lands -nhilst the^estate was under tl
management of the bankers. ' Rameutton PiAE
DwARKA Doss . . . 2 N. W. 18

11.

Decree-holder

possession — Rents due previous to his possessio.
When a decree-holder obtains possession of i
estate in execution, he is not at liberty to sue tl
raiyats for rents falling due before the date of h
taking possession. His proper course is to sue tl
late wrongful possessor for mesne profits, includiij
the rents. Umes Chandra v. Sh astedhae Mooke:j
jee . . . . 3 B. L. R. Ap. 8|

s.c. WooMESH Chunder Roy v. MAEKr>'
MOOKERJEE . . . .12 W. R. c.

12. Mortgagor n't

redemption — Period betiveen date of suit and e.r-
tion of decree. A suit for redemption is no bar :
mortgagor afterwards suing the mortgagee, who i
been in possession, for mesne profits due betv.e
the date of suit and the execution of the decre
GouE KiSHEN Singh v. Sahay Fukeer Chund
7 W. R. 36

13.

Redemption

iisufructuary mortgage — Mortgagee refusing togi
up possessio7i. An estate was mortgaged fi
RlOO ; the mortgagee was put in possession, and
was stipulated that he was to enjoy the usufruct
lieu of interest, the mortgagor being entitled to ;
deem at any time on pa3-ment of the principi
When the mortgagor deposited the principal, t,
mortgagee set up a false claim upon absolute £2

( 8209 )

DIGEST OF CASES.

( 8210 )

lESNE PROFITS— coM^rf.
1. RIGHT TO, AND LIABILITY FOR— conicl

id forced the plaintiffs into a regular suit in w hich
issession was decreed to them on payment of the
rincipal. Held, that they were entitled to mesne
•ofits for such period as was not barred by the
atute of limitation. Held, also, that plaintiffs
•eve entitled to interest from the date of suit.
rLEET SixciH V. Ali Reza . . 8 W. R. 322

14. - ■ ■ — Unlawful re-

mption by Government. Property which had been
ilawfuUy resumed by Government was, on appeal ,
leased by decree of the Privy Council. Held, that
e owner was entitled to recover mesne profits from
e date of the decree. Ramxaraix Mookerjee
MahtabChund . . 1 Ind. Jur, O. S. 48
"5. Vpanclioivki of

:-/iri tenure. A sued B for possession Mith
profits of a share in certain taluks, alleging
,1 he purchased it in execution of a decree. B
joved that he held the lands under an upanchowki
le. The lower Court, however, awarded to A
?sne profits for six years. Held, that, B having
oved his npanchoivki title, A could only be en-
led to a share of the upanchowki jumma, which
lis not of the nature of mesne profits, but of rent ;
'd therefore a suit to recover that could not be
;ought in the Civil Court. Shib Kumar Joti v.
VLI Prasad Sen . .1 B. L. R. A. C. 167

|l8. . Liability for mesne profits

tPeraon declared to le in icrongful possession.
iperson declared by a decree to be in wrongful
jssesion is liable for mesne profits, which may be
Kovered fiom any property in his possession.
lARCX V. Ahmed Ali Khan . 4 "W. R. Mis. 7

;Jey Narain I'. ToRABUN . . 3 Agra 216

IHera Lall Thakoor v. Gridharee Lall

I 8 W. R. 450

'17. Bond fides.

■|rties in possession are liable for wasilat to the
:il owners whom the}' kept out of possession, even
-h there was no mala fides on their part.
MH Pershad v. Radhoo Singh

10 W. R. 486

3. Holder of pro-

' ' for another. The mere possession by one

II of another's land does not render the former

to account for the profits. For these he is

only where he has held tortiously, or under an

i,eement, express or implied, to make them good.

IjHAMMAD Ali Bava Labbi v. Mohiadin Xainab

1 Mad. 107

Nature of pos-

i— Trespasser. The plaintiffs, who were the

' members of a Malabar edotn of which defend-

Xos. 3 to 5 were the senior members, sued to

•r with mesne profits possession of certain

liP^^Tty, offering to pay the amount of a kanain

8-anced by defendant '^No. 1. It appeared that

t land had been the subject of a kanam demise in

1 5, that defendant No. 3, the then karnavan, had

tjained in 1878 a decree for its redemption, the

MESNE PROFITS— con/rf.
1. RIGHT TO, AND LIABILITY FOR-contl.

right to execute which he assigned to a stranger, who
executed it, and took ])ossession of the property,
taking from the karnavan a new kanam deed, fiuh-
sequently defendants Nos. 4 and 5 obtained a decree
for possession and the cancellation of both the as-
signment and the kanam deed ; but this decree was
attached in execution proceedings in another suit
and purchased by defendant No. I, who executed it,
purchased the property, deposited the kanam
amount, and took possession on the Sth March
1884. The plaintiffs, who had meanwhile taken
abortive proceedings to defeat the first defendant 's
title, instituted a suit in August 1884. praying for
a decree that the sale to him be set aside without
praying for possession. Held, that defendant No. 1
was not a trespasser merely, and the plaintiffs were
entitled to a deduction of the profits for the whole
period during which he was in possession in com-
puting the amount payable by them before they re-
covered the land. Sankaran v. Parvathi

I. L. R. 19 Mad. 145
20. _^ Person pnvent-

ing raiyats from paying rent. A lessor who prevents
raiyats from paying rent to the lessee when the
latter comes to take possession is liable for mesne
profits, even though he may not himself collect the
rents. Bheekcmber Singh v. Raj Chunder
Ghose .... 15W. R. 196

Keeping oun(r

out of possession. A party who has been active in
wrongfully keeping another out of the possession
and enjoyment of property is liable for conseqi;en-
tial damages, whether he derived any profit himself
from the possession of the land or not. Ghoogly
Sahoo v. Chundee Pekshad Misser

21 W. R. 246

They should only be calculated for any period
during which the defendant was active in keoijing
the plaintiff o\it of possession. Indtrjeet Singh
V. Radhey Singh . . . 21 W. R. 269

22. — Person in wrong-
ful possession without knowledge of defect in his
title. Held, dissenting from a ruling of the late
Sudder Court, that mesne profits are always re-
coverable from a person who has enjoyed them, even
though he has been in bond fide possession without
knowledge of the defect in his title. He would, if
he bought with sui^:cient inquiry, have a remedy
against bis vendor. Mugcn Chunder Chvttoraj
r. Surbessur Chucklrbutty . 8 "W. R. 479

23. ' Person in pos-
session apparently of right afterwards legally dis-
possessed. Where a defendant had, with apparent
right, occupied newly-formed lands from which the
plaintiff ejected him by establishing in a civil suit
his superior title, the defendant was held liable to
account to the plaintiff for those profits which the
defendant had derived from the lands, and which
the plaintiff, if he had been in possession, would
himself have received. Abdool Kureem Biswas
r. Campbell . . . . 8 W. R. 172

( 8211 )

DIGEST OF CASES.

( 8212 )

MESNE PROFITS— con<cZ.
1. RIGHT TO, AND LIABILITY FOR— contd.

24.

Suit

■pur-

chaser with notice of defect of title, for reversal of
sale. Where a purchaser, by the institution of
a suit for the reversal of the sale, had full notice of
the defect of his title, he was, on the reversal of the
sale in that suit, held liable for mesne profits.

UmAMOYI BtTKMONEA V. TaEINI PkASAD ChOSE

7 W. R. 225

25. Vendor and pur-
chaser— Sale hy elder brother during younger brother's
7ninority. A sale by an elder brother during a
younger brother's minority having been set aside
and the vendee ejected, the vendee alone, and not
the vendor, whose connection with the property
ceased with the sale, was held to be liable for mesne
profits received and expended by the vendee whilst
in possession. Shtteutchusdeb Dey Sircar v.
Jadub^arain Nundee . . .1 W. R. 90

26. Possession tal:en

by third -party after suit. About the time that
judgment was given in plaintiff's favour for posses-
sion with wasilat, a third party, in satisfaction of
some other claim against the defendant, attached
and got possession of the land in dispute. A ques-
tion consequently arose in executing plaintiff's de-
cree as to the liability for wasilat of the year in
which the defendant was put out of possession by the
third party. Held, that, as under s. 223, Code of
Civil Procediire, plaintiff might have executed his
decree by removal of the party who had got posses-
sion under a title created by defendant subsequent
to the institution of the suit, he had the means of
recovering possession while defendant had not.
Under these circumstances, defendant could not be
held liable for the profits. Haeadhun Dutt v.
JoYKisTO Banerjee . . 11 W. R. 444

27. . Obstruction to

possession — Dispossession. Obstruction to pos-
session may be the ground of a claim for damages.
\^t it cannot support a claim for wasilat unless there
j^as been dispossession and the claimant has been
prevented from enj oying rents an 1 profits. Churn
giNGH V. Rfngoo Singh . . 15 W. R. 221

28. Joint judgment-
debtors. As a general rule, a suit for wasUat will lie
against parties -nho have been found in a previous
suit for recovery of the land to have been in wrong-
ful possession, and against them only. If the plaint-
■ff has recovered a decree against several persons as
joint wrong-doers, he is not at liberty to single out
one or more of them only as defendants in the suit
for wasilat. Stjttya Nundo Ghosatjl v. Suroop
Chtjnder Doss . . . . 14 W. R. 76

29. Joint liability —

Wrong-doers not in possession. The plaintiff pur-
chased a house with land attached, and sub-let the
property to his vendor, one of the defendant. The
defendants having in collusion prevented his en-
joying rent, he sued for rent, but on their interven-
tion the suit was dismissed. He then brought a
regular suit, and obtained a decree from the Civil

MESNE PROFITS— con^i.

1. RIGHT TO, AND LIABILITY FOR— con<rf.

Court for Mas possession. In a suit to recov
wasilat : — Held, that, although the defendants Wf
not all in possession, yet, as they all continued
oppose the plaintiff's possession, they were joini
liable for the wasilat. Shamasunkee Chowdhi
V. Seeenath Baneejee . . 12 "W. R. 35

30. Ijniali pr

perty ichere defendants have divided estate. In a su
to recover possession of land from the ijmali ei
joyment of which the plaintiff had been exclude
by the joint action of all the defendants who h;
divided the property between themselves : — Hd
that the defendants were all equally responsible f'!
the damage sustained by the plaintiff, and that noii
of them could restrict their liability for mesne pro '
to that portion only of which they were in posst
sion. Held, also, that the plaintiff was entitled
obtain mesne profits up to such time as he shou
get real and substantial, and not merely formj
possession of the property at the hands of the d
fendants in execution of his decree. Jhoosk)
PArREY V. Ajoodhya Doss. Ajoodhya Doss
Lalljee Paueey I. . . 19 W. R. 2'.

31.

Actual occwp.!

and lessor. Where lands are wrongfully withhf!
from the rightful owner, not only the actual (
cupiers, but also the person who has leased the la
to the actual occupiers, may be held to have co
mitted a joint trespass, and to be jointly liable ;
the damages caused by such trespass. Doe
Harlow, 12 A. <& E. 40, followed. MuDUN Moh
Singh v. Ram Dass Chuckerbutty

6 C. L. R. 3

32. — Apportioning

of liability. Where intermediate holders combi"
wrongfully to keep an auction -purchaser out
possession, they must all be held liable for meip
profits : the Court need not apportion their liabilr
in proportion to the extent of the property resp;-
tively held by them. Ram Chunder SitemahJ.
Ram Chundee Pal . . . 23 W. R. 2}

33.

Appoiiionrii'

damages between joint tort-feasors. In a siii
mesne profits against a number of defendant-
have been in possession of distinct portions
newly-formed chur, and are proved to hav^
title thereto, it is competent to the Court, hn
regard to the provisions of the Civil Procedure d
to apportion the damages payable by the defeiKbi
severally in respect of the portions held by th
respectiveh'. Aliter : where the defendants 1
jointly taken possession of a particular portit
such land. The reason for treating as joint t' •
feasors all persons who have occupied portion.|t
land ultimately found to belong to a neighboui5
estate, and for applying the rule of contributioi
apportionment between joint t'>rt-feasors, is v
ing in the case of a suit for mesne profits again
number of defendants who have takcyi possc^
of distinct portions of lands forming parts of a ct

( 8213 )

DIGEST OF CASES.

( 8214 )

ESKE PEOFITS— con/d.

RIGHT TO, AND LIABILITY FOl\—contd.

;med chur to which they have no title, and it is
rand equitable in such a case that the defendants
Duld be severally made liable for mesne profits in
pectot'the parcels occupied by them respect -
: ly. Krishna Mohtjn Basack r. Kuyjo
JEABY Basak . . . . 9 C. L. E,. 1

J4. Asse.ss7nent of

Mlity for — Suit for mesne profits with several
i.indanis. In a suit for mesne profits where there
; • several defendants, the liability of the several
1 endants should be assessed in proportion to the
I cunt of profits which each had derived from
J wTongful possession. Nawab Nazim of Bexgal
■;Raj Coomaeee Debee . . "W. R. 113

i.OLLECTOB OF BOGRAH V. ShaMA StJNKXJR Mo-

i)MDAR . . . . 6 W. R. 230

J5. Eepresenfative of

t'tor until sale of property taken, in execution.
Viere execution is ordered to be taken out
jiinst the estate of a deceased judgment-debtor,
{,1 the property is sold, the representative of the
(i)tor cannot be called to account in execution for
t mesne profits of the property while in his hands.
I ZHTJE Ali alias Sat Coweee Meah v. Nawab
1 ziM OF Bengal . . . 7 W. E. 308

"6. Liability of

\ radar under an ijara granted ly party in wrongful
jsession. A suit for mesne profits held to lie
J inst a party who took an ijara pending litigation
t ugh the decree for possession with profits was
8 inst the ijaradar's landlord. Bidyajiaya De-
i Chowdhrain v. Ram Lal Misser

8 B. L. E. Ap. 80 : 17 W. E. 148

'7, Dispossession of

vjruduary mortgagee. The plaiutifi for a con-
Sj?ration obtained from the defendant a zur-i-
Ijhgi lease which contained an undertaking that in
t| event of the plaintift's possession being inter-
fjjd with by the defendant, or the defendant's pre-
^lus ticcadar, the defendant would pay back to the

Iintiff his money with interest and profits. The
er Appellate Court, finding that the plaintiff,
el?r enjoyment for three years, had been turned out
cposscssion by the previous ticcadar, gave the
ijintifi a decree for the original money advanced,
> li interest and mesne profits for the unexpired

tion of the lea>e. Held, that mesne profits
uld not have been awarded. Khergdhur
LL r. Doolee Chund . . 19 W. E, 424

Decree-holder

/ing debt and taking possession from zitr-i-pesh-

I ar. Where a decree-holder, finding a zur-i-pesh-

lar in possession, paid the debt due by his judg-

' -debtor to the zur-i-pcshgidar, and entering

possession himself realized the rents, it was held

1 lie could not demand wasilat from the judg-

jnt -debtor for the same period. Sham Soonder

lioKRt'.RAjEXDER Misser . 10 W. E. 390

MESNE PEOFITS— con/rf.
I. RIGHT TO, AND LIABILITY FOR— contd.

39. — Beng. Regs. X V

of 1793 and I of 1T9S. — A granted a zur-i-peshgj
lease of certain lands to the defendants for a fixed
term which was to continue after the expiry of the
term so long as the money advanced remained un-
paid. Shorth- afterwards A evicted the defendants
and sold the land to C and D. The defendants sued
A, C, and B, and obtained a decree for possession
and mesne profits. They never got possession, but
they recovered the mesne profits from A. On the
expiry of the lease, C and D were held, in a suit
brought by them, entitled to redeem. Held, that
the defendants were not liable, under Regulation
XV of 1793 or I of 179S, to account for the mesne
profits which they had recovered, WrZEEROON-
NISSA r. Saeedcn

B. L. E. Sup. Vol 613: 6 W. E. 240

40.

Mortgage

possession. A mortgagee in possession occupies a
fiduciary position towards all the persons interested
as proprietors in the mortgaged estate, and to all he
is answerable for whatever mesne profits he may
receive in excess of the amount wliich he is entitled
to receive by law or asireement. And when some of
the proprietors assert claims, and assert such claims
on behalf of themselves alone, he is entitled to re-
quire the claimants to establish the extent of their
claims. Deonarain Singh v. Naek Pershad

2 N. W. 217

41. Liability of

mortgagor after decree for foreclosure. Where a
mortgagee, after obtaining a decree for foreclosure,
sued for possession and mesne profits, and the mort-
gagor did not prove that he had given the plaintiff
possession or directed his lessee to pay rent to the
plaintiff. Held, that the mortgagor (defendant) was
liable for wasilat from the date of foreclosure, so far
as it was not barred by limitation. SuROOF
Chunder Roy v. Mohender Chunper Roy

22 W, E. 539

42.

Wndor and pur-

chaser— Trustee for person out of ]x>ssession.
Where in a suit for partition it apiK?ared that the
vendor of the portion sued for had kept the vendee
out of possession, the vendor, though liable for
mesne profits, was not in the position of trustee of
the rents for the party kept out of possession. Nil
K.\MAL Lahfri r. GrNOMANi Debi

7 B. L. E. 113 ; 15 W. E. P. C 38

43. '■ EjtClmUii of

mortgagee's tenant of sir laiul by mortgagors.
Where mortgagors had a right of occupancy in sir
land, it was held that they could not be treated as
trespassers for ejecting the mortgagees' tenant and
taking possession ; but inasmuch as. instead of giv-
ing notice to the mortgagees of their inteii*ion to
avail themselves of such rights and to enter on the
sir land as tenants, at the same time offering to pay
such rent as might, having regard to the provisions
of s. 7, Act XVill of 1873, be properly payable by

( 8215 )

DIGEST OF CASES.

( 8216 )

TMESNE PROFITS— conR

1. EIGHT TO, AND LIABILITY FOR—contd.

them, they entered on the sir land and ousted mort-
gagees' tenant, they rendered themselves liable for
mesne profits. Bakhat Ram v. Wazir Alt

I. L. R. 1 All. 448

44, — Ejectment and

talcing possession on expiry of lease xinthout notice of
ejectment— N .-W . P. Rent Act (XII of ISf^l), s. 36.
Where upon the expiry of the term of a lease, but
without the written notice of ejectment required
by s. oB of the X.-W. P Rent Act having been given
by the lessor, possession was taken and rents col-
lected by persons claiming under a subsequent lease :
— Held, that the tenancy of the^first lessees did not
cease upon the determination of the term of their
lease, and that the second lessees were wrong-doers
in usurping possession and collecting rents and pro-
fits, and were liable in a suit for damages by way of
mesne profits after deduction of a sum paid by them
for Government revenue, but without deduction of
what they had paid the lessor or of the expenses they
had incurred in collecting the rents. Shitab Dei
V. Ajudhia Prasad . I. L. R. 10 All. 13

I MESNE TB,OFlTS—coyitd.

1. RIGHT TO, AND LIABILITY FOR— co

45.

Eesumptlon

Government — Lakhirajdar — Fraud. In a suit for
wasilat in respect of mal lands fraudulently included
by the lakhirajdar with lakhiraj lands resumed by
Government and afterwardss settled with him : — •
Held, that the lakhirajdar, and not the Government,
was liable ; and that, as the sum claimed was definite
and required no further inquiry to ascertain the
amount due, interest had been properly awarded
from date of suit. Coomaree Dabee v. Mahtab
CnrND . . . W. R. 1864, 380

46. Assessment of

mesne props — Land out of jurisdiction. "WTiere
application was made for execution of a decree for
possession with mesne profits of five mouzahs situ-
ated within the Court's jurisdiction, and Govern-
ment revenue was so assessed upon, these five mou-
zahs, and two other mouzahs situated in another
district, that the amount paid on account of the five
mouzahs and the two mouzahs respectively could
not be apportioned, the Court had no jurisdiction
to determine and award mesne profits for the two
mouzahs not within its jurisdiction, but should
have made an apportionment to the best of its
ability. Nor ought the Court to have assessed the
mesne profits by relying upon certain jamabandi
papers made by the Government revenue officers
some thirty years ago, without inquiring into the
actual rents or proceeds of the estate during the
period of dispossession. Puran Chundeb Roy v.

JUGGESSUR MOOKERJEE . 17 W. R. 298

47.

Forfeiture of fro-

ferty— Liability of Government. ^^ here property
is confiscated by Government, it is only responsible
for the profits during the time it is in possession, and
to such amount as was actually realized, or such as
might and would have been realized but for negh-
;gence or fraud on the part of its servants. Mohun
Lall v. Government . . 2 Agra Mis. 6

48.

Amouni to w, h

plai7itiff is entitled — Decree — Civil Procedure C'e
(Act XIV of 1SS2), s. 211. A successful plairtf
in a suit for possession and mesne profits is not i-
titled to claim mesne profits accrued after the i.
stitution of the suit for more than three years f n
the date of the decree if that event occurred be: e
the actual delivery of possession. Bhup Irir
Bahadur Singh v. Bijai/ Bahadur Singh, I. L.l,
23 All. 152 ; L. R. 27 I. A. 209; UUamratif.
Kishoredas, I. L. R. 2i Bom. 149, and Naran
Govind Manik v. Sono Sadashiv, I. L. R. 24 Li.
345, foUowed in principle. Trailokya Nh
Ray Chaudhuri y. Jogexdra Nath Ray (19ii
I. li. R. 35 Cale. J 7

49. Allowance of expenses )f
collection of rents to a ti-espasser agai;t
whom a decree for mesne profits has b n
passed — Civil Procedure Code, s. 211 — Princle
upon ivhich such expenses should be aHownr
disallowed. In estimating the mesne profits w]'h
the owner of land is entitled to recover fro a
trespasser, the costs of collecting rents, will
are ordinarily incurred by the owner, shouldje
allowed to the trespasser only where fh
trespasser entered on the land in the exerpisof
a bond fide claim of right. But when the tres 33
is altogeher tortious and malicious, in other wc.s,
when the trespasser has entered or continneon
the property without any bond fide belief thatie
is entitled to do so, where, in defiance of the rita
of another, he has thrust himself into an esi.e,
although he may still claim all necessary paym'-s,
such as Government revenue or ground rent, itisot
imperative on the Court, in estimating damage to
allow the wrong-doer even such charges as wld
ordinarily but voluntarily be incurred by an cer
in possession. Altaf Ali v. Lalji Mal, I. L. '
All. 51S, followed. Mc Arthur v. Cornwall.

A. C. 75; Girish Chunder Lahiri v. •
Shikhareswar Roy, L. R. 27 I. A. 110, refers
Abdul Ghafur v. Rala Ram, I. L. R. 23 All -^
distinguished. Duxgar Mal v. Jai Ram (1902*

I. L. R. 24 All. re

50. Interest — Execidioin—^
Procedure Code (Act XIV of 1SS2), ss. 211, oj—
Appea I — Pa rt ies — A dding part ies — Respondei}-;-
Poiver of Appellate Court to add responderd — Zm-
tation Act (XV of 1S77), s. 22. Where a rl ■■
granted mesne profits and said nothing
interest, the amount of the mesne profits ben
for determination in execution of the decree,
that the decree-holder was entitled to interest
the mesne profits due to him, until such n
profits are actually paid to him by the judgn t-
debtors. Girish Chander Lahiri v. Soshi Sekharei^
Roy, I. L. R. 27 Calc. 951, referred to. The !■ '•
tation Act does not contract the power of the '
under s. 550 of the Code of Civil Procedure to
persons who were parties to the proceedings i
Court below, but were not made respondents &fM
time when the appeal was presented, to be add« as

( 8217 )

DIGEST OF CASES.

( 8218 )

YB.O'FITS— CO ntd.

1 RIGHT TO, AND LIABILITY FOR— concW.

1 pondents, and it makes no difference whether an
(jlication is made by the appellant to bring in
Use persons as respondents, or the Court consider
i lecessary for the ends of justice that they should
1 added 'as respondents. Manickya Moijee v.
:roda Prasad Jlookerjee, I. L. B. 9 Cede. 355, and
ikntal Bank Corwration v. Charriol, I. L. B. 12
("c. 6i2, referred to. Girish Chander Lahiri
i«isi Sekhareswar Roy (1905)

I. L. R. 33 Calc. 326

M'SSMENT IN EXECUTION AND SUITS
FOR MESNE PROFITS.

Assessment of mesne pro-

; - Fmcer of Court executing decree to assess
... profitf. A Court executing a decree has no
J ver to assess mesne profits, unless it is ordered
lithe decree that the mesne profits are to be as-
(ised in execution ; and it is an essential part of a
(/ree which orders mesne profits to be assessed in
rcution, to fix the period in respect of which
fh mesne profits are to be assessed. Wise v.
],jEN-DrRCooMAR Roy . . 11 W. K. 200

■ i. __^ Order in execu-

te of decree giving mesne profit^ not awarded hy

fl'ree. An order, assumed to be made by a Court

' rpoution, that the decree-holders should have

profits which had not been awarded in their

. was held to be made without jurisdiction,

;i ; could not be regarded as taking; effect. Kalka

fiGH V. Paras Ram . I. L.^E. 22 Calc. 434

L, R. 22 I. A. 68

Execution of

— Decree silent as to date to which mesne pro-
! are to rvn — Subsequent mesne profits. Where
tlecree is silent as to the date up to which mesne
ffits, are to run, and merely gives a decree for
{jsession with mesne profits, those mesne profits
cj only be reckoned, for the purposes of assess-
I lit in execution, up to the date of the institution

e suit. Ram Manickya v. JuGorxNATH
. I. L. R. 5 Calc. 563

i-.oxATH Roy v. Indeo Bhoosun Deb Roy
6 W. R. Mis. 33

OKEE Nath Mookerjee V. Raj Kisto Sixon
15 W. R. 292

MESNE PROFITS— co«^/.

2. ASSESSMENT IN EXECUTION AND SUITS
FOR MESNE PROFITS— coh^cZ.

Decree for pos-

n— Civil Procedure Code, 1S59, ss. 196, 197.
ree for possession was construed to include

• profits where the High Court was satisfied
-uch was the intention of the Court which
1 the decree. A decree of a Court should,

• ss. 196 and 197, Act VIII of 1859. state
or mesne profits are awarded or not ; and it
1 distinctly state, when it reverses any points
''Sequent inquiries in execution of the decree,
those points are. Raesoonissa Begum v.

■DA Sooxduree Chowdhraix 16 W. R. 25

Court with power

to pass decree. Although the assessment of mesne
profits is reserved for the period of execution of
decree, it is an essential part of the decree itself,
and not a mere process in execution, and must
therefore be made by a Court authorized to pass
the decree. Meher J.an v. Gerda

25 W. R. 270

Act XXIII of

ISfil. s. 11 — Profits assessable by Court in e,re-
cution. The mesne profits which, under the pro-
visions of s. 11, Act XXIII of 1861, are assess-
able by the Court executing the decree, are only
such as have been by the decree made paj-able in
respect of the subject-matter of the suit between
the date of the suit and the date of the execution
of the decree. Anj- question of mesne profits not
determined bj' the Court making the decree is
not properly cognizable by the Court executing
the decree. Ram Lochax v. Munsoor Alt Chow-
DHRY 11 W. R. 339

Act XXIII of

18^1, s. 11 — Suit for mesne profits. Where no
liability to mesne profits is imposed by a decree.
s. 11 of Act XXIII of 1861 does not give a power to
extend the relief granted by the decree in respect of
the right to mesne profits, but onlj' to determine
questions regarding the amount thereof when the
right thereto has been ascertained by the decree.
SuBBA Venkatara Maiyax v. Subraya Aiyax

4 Mad. 257

Decree silent as

to mesne profits — Power of Court executing; decree.
Plaintiff sued for possession of certain lands and
for mesne profits. He obtained a decree for posses-
sion, but the decree was silent as to mesne profits.
Held, that the Court executing the decree was not
competent to entertain a claim for mesne profits
made by the decree-holder. Chuxder Coomae
RoYrt;. Goxesh Chuxder Dass

I. L. R. 13 Calc. 283

Suit for mesne profits — Act

XXIII of IS^l, s. 11 — Civil Procedure Code, ss. 196
and 197. Mesne profits are in themselves simply
damages which do not exist as an obligation to be
dischar<Ted until they have been awarded by a Court
competent to do so. Therefore, according to s. II,
Act XXIII of 1861, mesne profits payable at the
time of execution must mean mesne profits which
have been at that time directed to be paid by a
decree of Court. A obtained a decree against B for
recovery of possession of certain property, and for
mesne profits up to the date of the suit ; but the
decree was silent as to mesne profits after that time.
Held, that A was not barred by the provisions of
s. ll' of Act XXIII of 1861 from bringing a suit
asainst B for mesne profits during the time that A
\^s kept out of possession after the decree.

{ 8219 )

DIGEST OF CASES.

( 8220 )

MESNE PROFITS— cow/cf.

2. ASSESSMENT IN EXECUTION AND SUITS

FOR MESNE PROFITS— cowW.
Haramohixi Chowdhrai:^ v. Dhanma^ti Chow-
DHRAiN . 1 B. L. R. A. C. 138 : 10 W. R. 62
HuRCHURN Lal I'. TooRAB Khan 2. H". W. 176

Shuji Sheer Singh v. Ramjeeawun Rae

2 N. W. 416

Issur Dutt Singh v. Alltjck Misser

7 W. R. 429

Shumbho Mohun Roy v. Tirpoora Sunkfr Roy
12 W. R. 126

10.

1S)1,

Act XXIII of

11 — Execution of decree — Decree for pos-
session. Where, in a suit for land, the Court
decreed to the plaintiff possession of the
land, but made no decree in respect of mesne pro-
fits: — Held the plaintiff could not, under s. 11 of
Act XXIII of 1861, obtain an order from the Court
executing his decree declarina; him entitled to any or
what amount of mesne profits. Under s. 11, the
question must relate to something comprised in the
decree. Ekowri Singh v. Bijaynath Chatta-
PADHYA . 4 B. L. R. A. C. Ill : 13 W. R. 11
Ameer Ahmttd v. Zameer Ahmttd

18 W. R. 122

Ram Roop Singh v. Sheo Golam Singh

25 W. R. 327

11. Decree for pos-
session— Act XXIII of IS'^l, s. 11. A, in execution
of a decree of the lower Court against B, obtained
possession of certain land therein mentioned. On
appeal by B, the High Court reversed the decree
of the lower Court, and ordered restitution of the
property to B ; but no mention of mesne profits
was made in the decree. B then sued for recovery
of mesne profits for the period during which A had
been in possession. Held, that such a suit would
not lie. The question of mesne profits ought to
have been decided in execution imder s. 11 of Act
XXIII of 1861. Shib Narayan Pohraj v. Kls-
hor Narayan Pohraj . 1 B. L. R. A. C. 146
10 W. R. 131

12.

Suit for

session — Civil Procedure Code, ss. 2, 7, and 196 —
Act XXIII of 18-11, s. 11. The plaintiff brought a
suit for possession of land with mesne profits. The
suit was dismissed. He appealed on the question of
possession only, and obtained a decree for posses-
sion without any mention of mesne profits ; and
afterwards, in execution of the decree, he obtained
possession of the land. Held, that the plaintiff
could afterwards bring his suit to recover mesne
profits from the date of decree for the period of six
years next before the commencement of the suit,
exclusive of the period during which the plaintiff
was in possession. Ss. 2. 7, and 196 of Act VIII of
1859, and s. 11 of Act XXIII of 18i31, were no bar
to such suit. Pratap Chandra Burfa v. Swarna- i

MAYI. SwARNAMAYI V. pRATAP ChANDRA BfRUA

. 4 B. L. B. F. B. 113 : 13 W. R. F. B. 15 I

MESNE FROTITS—contd.

2. ASSESSMENT IN EVEOUTION ANDSU' =
FOR MESNE PROFITS^:ore(i,

^^- ' After suit for i

moveable property where mesne profit i are not /m
tioned in decree. When a suit is brought to recc •
possession of immoveable propertv, and the de.-(
does not provide for the mesne profits that accr c
during the suit, a separate suit may be maintai c
for them. Where, however, it can be shown u'
the omission in the decree to provide for dkk
profits was the deliberate act of the Court, the ■■
fendant may set that up as a defence in the sepai e
suit. SiTARAM Amrut V. Bhagvant Jaganat
6 Bom. A. C. 9

14.

**• Profits bet'.n

filing of plaint and execution of decree — Act Xl'l
of 1851, s. 11. Where a decree awarding poss-
sion of immoveable property is silent as to mfie
profits accruing between the filing of the pi it
and the execution of the decree, the Court exct-
ing the decree has no power to award such pro?.
The proper course for the plaintiff to adopt, uur
such circumstances, is to apply to the Court w'hh
passed the decree for a review, or else to file se-
parate suit. Jiva Patil Rahimm, v. Mnlukji lii
Nathuna, 3 Bom. A. C. 31, overruled. Rah-
BAi V. Radhabai . . 4 Bom. A. C. II

Chowdhry Imdat Alt

15.

BOONYAD AlI

14W.E.2

Act XXII of

IS^I, s. 11. A plaintiff, in possession under a dese
for land and mesne profits, applied for furer
execution as to mesne profits and obtainecm
order from the Court of first instance (the Dis ot
Munsif's Court). This order was reversed byie
Appellate Court (the Civil Court), leaving still (jn
to the Court of first instance to make a furer
order. Plaintiff, however, instead of appl'ig
again for execution, instituted a fresh suit for m ae
profits in the Civil Court. The Civil Judge rejeed
the plaint. Held, that s. 11, Act XXIII of lH,
warranted the rejection of the plaint on the grtjid
that the mesne profits to which plaintiff laid cim
in the suit were payable in respect of the subl't-
matter of the former suit. Lakshmi NAE.i'r-
HALtr V. Chatrazu Jagannadham Pantalt-
Srinivasa Rau. Ex parte Ruddravarpu
SAM Raz alias Konamaraze . 3 Mad.

16. Power of <

executing decree to assess mesne profits not dec
Where a decree was silent as to the plain i s
right to mesne profits after the date of filing Ihe
suit, and did not reserve any question of mne
profits for further investigation, the Court wjoh
executed the decree was held to have acted ultra ret
in ordering an investigation into mesne prjiM
which may have accrued due pending tlie suitnd
up to the time of execution. Broughton v. P!h-
LAD Sen 19 W. R.54

17. Act XXIiof

1861, s. 11 — Separate suit — Question in exec^o*

( 8221 )

DIGEST OF CASES.

( 8222 )

lESNE PROFITS— cow<<i.

ASSESSMENT IN EXECUTION AND SUITS
FOR MESNE PROFITS— co?j<c?.

,1 decree. D obtained a decree for an undivided
!iare of certain property, but the defendants hav-
ig apportioned the entire property amongst
lemselves and held each his own portion exclusive-
:, D seized in execution a part of the share of one
f them, P. On appeal the possession was ordered
) be given up. P then sued to recover
lesne profits for the period of Z)'s possession.
(eld, that the damages in question ought to have
een sought in the execution proceedings when the
josse.'ssion itself was recovered, and not by the
'istitution of a new suit ; a Court being bound not
IQJy to place an aggrieved party back in the ori-
■inal position from which its erroneous action had
.placed him, but also to give him compensation
•lit such loss as he had thereby sustained. Dui.jeet
i GRAIN V. Rewul Gorain . . 22 W. R. 435

' 18, Act XXIII of

'S61, s. 11 — Question to he decided in execution of
.scree. Certain decree-holders, having been sued
iiccessfully for possession by the judgment-debtors
[1 the first Court, appealed to the High Court, who
Bversed the decision, and whose order was con-
rmed by the Privy Council. The decree-holders
• |i this applied for execution and for mesne profits
')r the interval during which they had been kept
at of possession. Held, that they were entitled
I) what they claimed in execution without bring-
ig a regular suit, as the effect of the High Court's
?cree was to replace the parties in status quo.
xxJST Ram Hazrah v. Kukalee Pershab

lISTREE 23 W. R. 4il

j 19. Assessment under Privy

jiouncil decree — Execution of decree of Privy
,ouncil — Decree for possessioii. When the Privy
iouncil declares an appellant entitled to real pro-
j3rty, of which he was out of possession, and directs
lie High Court to make the inquiry necessary to
j5certaiu what is comprised therein, and to proceed
■1 the suit as upon the result of such inquiry may
jppear to be just, the High Court, on being applied
1) for execution.ought, besides giving possession, to
|5oertain and award mesne profits up to the date of
Iving possession. Lilan and Singh r. LrcKMi-

-" SiKo 5 B. L. R. 605

c. Leelanuxd Singh v. Lvchmessfr Sinch
14 W. R. P. C. 23 : 13 Moo. I. A. 490

20. _ . Assessment of mesne pro-

ts under Privy Council decree— Po^vcr of

■ >■/ executing decree. The judgment of the Privy

: 'il reported in Leelanund Singh v. Luchmessur

■-. 14 IF. B. P. C. 23 : 5 B. L. B. 60:,. in no

militates against the Full Bench ruling in

"•dun Lull V. Bekaree Si^igh, B. L. B. Sup.

'>02 : 6 W. B. Mis. W9, which laid it down

>.''t under s. 11, Act XXIIT of 1861, the Court exe-

iting a decree is not to determine whether mesne

'ofits are to be awarded or not, but only the

' int of such profits. Ramkanye Ghose v.

i:oo PfiostJifNo Roy . . 16 W. R. 30

MESNE PROFITS— con^cf.

2. ASSESSMENT IX EXECUTION AND SUITS
FOR MESNE PROFITS— con<(i.

21.

-Power of Court as

to mesne profits in execution of decree — Decree of
Privy Council executed by Courts in India. Where
the Privy Council made an order in favour of a
plaintiff, decreeing possession of certain property
with mesne profits : — Held, that the intention was
to award such a sum as would compensate the plaint-
iff for his actual loss, and the decree therefore au-
thorized the Courts of this country to consider and
deal with the question of mesne profits as fullv as a
Court could which was charced with the duty of
originally determining the merits of such a question
between the parties to the suit. The High Court
accordingly awarded the amount of actual loss
found to have been incurred in'respect of each year,
with interest thereon from each year to the "date
of the High Court's order. Budlun r. FrzLOOR

Ruhman 23 W. R. 449

22. Mesne profits not given by

decree — Execution of decree — Interest. In con-
struing the provisions of s. 11, ActXXlIl of'lS61,
notwithstanding certain earlier decisions to a con-
trary effect, all the Indian High Courts have now
recognised it to be settled law that, where the de ree
is silent touching interest or mesne profits subse-
quent to the institution of the suit, the Court
executing the decree cannot, xmder the section in
question, assess or give execution for such interest
or mesne profits, but that the plaintiff is at liberty
to assert his rights thereto by a separate suit. The
Judicial Committee of the Privy Council, although
of opinion that, if the matter had been res integra,
the provisions of the section miglit have admitted
of a different interpretation, being unwillinir to
run counter to a long and concurrent course of
decisions of the Indian Courts in what is really a
mere matter of procedure, accepted this construc-
tion of the law as binding. The plaintiff obtained
a decree for the possession of certain lands, with
mesne profits up to the date of suit. No claim
was made in the plaint for mesne profits accniing
due after the date of suit, and the decree was silent
in respect thereof. An appeal against the decree
having been brought by the defendant, execution
was, from time to time, stayed by tlie Court on the
defendant giving security, to abide the event of
the appeal for the execution of the decree and for
payment of the mesne profits accruing while the
plaintiff remained out of possession. Tiie decree
having been confirmed on appeal, the plaintiff
applied for execution in respect of the interim
mesne profits. Held, in the Court below, that, as
these were not provided for by the decree,
they could not, under s. II. Act XXIII of 1861.
be awarded in execution, but must be made the
subject of a separate suit. Held by the Judicial
Committee, that the proceedings whereby the
defendant led the Court to stay execution and
continue him in possession, laid him under an
oblisation to account in the suit for the mesne
profits which he engaged to pay ; and that this

( 8223

DIGEST OF CASES.

8224 )

MESNE PROFITS— con<(7.

2. ASSESSMENT IN EXECUTION AND SUITS

FOR MESNE PROFITS— con<cZ.
obligation was capable of being enforced by pro-
ceedings in execution, notwithstanding the con-
struction given by the Court to s. 11 ; since, even
if the defendant's liability to account were not to
be considered " a question relating to the execution
of the decree " within the meaning of the section, he
was, in any case, precluded by the ordinary prin-
ciples of estoppel from contending that the mesne
profits in question were not payable under the
decree. Sadhasiva Pillai v. Ramalixga Pillai
15 B. L. R. 383 : 24 W. R. 193
L. R. 2 I. A. 219

s.c. in High Court, Rajialinga Pillai v. Sat-
TEASivA Pillai .... 7 Mad. 97

Chowdhree Naix Singh v. Jawahur Sixgh

1 ISr. W. 167 : Ed. 1873, 246

Bhoobunesstjree Chowdhrain v. ^Iaxsox.

22 W. R. 160
Abdool Ali v. Ashruffun . 25 W. R. 315

23. ' Ad XXIII of

1B61, s. 11. A decree of 1854 for possession and
mesne profits, having been confirmed on appeal in
February 1855, was duly executed in part up to
1861, when the decree-holder applied for execution
as for mesne profits to the extent of R81. Failing
in the Court of first instance, the applicant was de-
clared by the Appellate Court, in 1863, entitled to
the amount, with interest, by virtue of his decree.
The judgment-debtor contested the case in the
Civil Court, but his suit was dismissed on the 12th
August 1865, and on the 12th July 1866 the decree-
holder applied for execution of the decree for R81,
the balance of mesne profits. This application
was disallowed, on the ground that there was no
provision in the original decree awarding mesne
profits, and that an agreement to which the decree-
holder had referred was not forthcoming. Held,
that, as the original decree of 1854 evidently
intended to give mesne profits of some kind, the
Courts in 1862 and 1863 had jurisdiction, under s.
11, Act'XXIII of 1861, to determine what mesne
profits were due ; and that, as the decree-holder
was seeking to maintain the order in the Civil
Courts in 1864 and 1865, his application of July
1866 was in time, and he was entitled under an
order of a competent Court to receive the mesne
profits claimed. HuRo Soo^■DERY Dossee v.
NOROODEEN . . . . 11 W. R. 325

24.

Decree for pos-

session witJiout mesne profits — Mesne profits after-
wards cdlowed. Where an auction-purchaser, who
prayed for possession as well as mesne profits, ob-
tained a decree for possession which said nothing
about mesne profits, and no reason appeared why
mesne profits should be refused, the High Court
allowed mesne profits in execution. Kaleenath
Doss V. Rajah Meah . . . 22 W. R. 406
25. Question of amount of

MESNE PROFITS— confrf.

2. ASSESSMENT IN 'EXECUTION AND SUF.

FOR MESNE PROFITS— cow^c?.
profits from date of suit. A decree awarding pr
session with wasilat from the date of suit was held
be rightly construed as awarding mesne profits un
the date when delivery of possession should be eflec
ed, and reserving the question of the amount i
adjustment in execution. Bunsee Singh v. Nazi
All 22 W. R. 35

26. Suit for pc

session and mesne profits — Inquiry as to the lah
deferred hy tl>e judgment — Decree silent as to mes
profits — Decree, Form of — Civil Procedure Coci
ss. 45, 212, and 241. A Court, which had virtual
adjudged mesne profits to the claimant in t
same judgment in which it decided that she t
entitled to the immoveable property claimed, k
open the question of the amount of those profits
be decidecl in subsequent proceedings. In the c
cree which followed no mention was made of t
profits. Held, that it was competent to the Cox;
to defer the inquiry in that manner, nothing in t
Code of Civil Procedure preventing such a dispos
of the suit. If there had been a technical omissL;
in the decree, it had not affected the right of t
plaintifi:. Muhammad Abdul Majid v. iluHAMiL
Abdul Aziz . . . I. L. R. 19 AIL- IE

L. R. 24 I. A. 5

27.

Mesne pro]

between decree and possession — Pou;er of Court t
cuting decree. In a suit for possession and wasik
the first Court awarded wasilat, but the lower App
late Court, considering that no evidence had be
given bj' the plaintiff of the wasilat which he was e
titled to recover, allowed him up to date of suit or
the amount which he had paid as Government re\
nue upon his mehal. Held, tliat the Court executi
the decree was not prevented from ascertaining t
amount of wasilat which had accrued between t,
date of decree and the date of possession. Mab|

MED BuSHEEROOLL.iH ChOWDHRY V. HeDAET M

Chowdhry . . . . .8 W. B. <
28. Act XXIII

1S61, s. 11 — Suit for damages for illegal appropr
Hon of produce — Suit for mesne profits. A suit
a raiyat against another for damages on account^
illegal appropriation of the produce of the land j-
eluding the raiyat' s profits, by the defendant duri|;
certain years is not a suit for mesne profits, and>
therefore unaffected by s. 11, Act XXIII of 18i
The question regarding amount cannot be settledf
execution, but by separate suit. JoY KlSHJ

MOOKERJEE V. JODOONATH GhOSE

3 W. E

Suit for m,}

mesne profits — Decree for possession with mesne

profits of land taJcen in excess tinder decree 4
restored. Where a decree-holder in execution ta^
possession of more land than is covered by the 'j-
cree, and on an objection raised, and after inqur
made, the excess land is subsequently reliuquislji
the question of wasilat, being one which arises !■
tween the parties to the suit with reference to 8
execution of the decree, must, under Act XXIIW

( 8225

DIGEST OF CASES.

( 8226 )

MESNE PROFITS— con^i.

2. ASSESSMENT IN EXECUTION AND SUITS

FOR MESNE PROFITS— con^rf.
186I, s. 11. be determined by the Court executing
the decree, and not by a separate suit. Bama
SooxDUKEE Dabee V. Takinee Kant Lahoi.kee

20 'W. R. 415
i Sfe Badha Govind Saha v Brujexder
CooMAB Ror Chowdhky . 7 W. R. 372

30.

— Execution of de-

cree for possession, itay of — Right to mesne profits.
Execution of a decree for possession merely of
certain land having been stayed, and the defendant,
pending an appeal to the Privy Council, continued in
possession by the High Court upon his giving secu-
rity for the " due performance of such order as
iight be made by the Privy Council," the appeal was
subsequently dismissed, uo order being made as to
mesne profits. Held, on the authority of the case of
Sadfisiva Fillai v. Ramalinga Pillai, 15 B. L. B.
3S3 : L. R. 2 I. A. 219 : 24 W. R. 193, that, under
the circumstances, the decree-holder was entitled to
mesne profits from the date of the decree until he was
put in possession, and that the amount of such pro-
fits should be determined by the execution depart-
ment. See, however, the case of Forester v. Secre-
\tary of State, L. R. 4 I. A. 137. Goorx Chunder
SiBKAR I'. Laidlay . . 5 C. L. R. 189

31. Decree for mesne profits —

Execution of decree made on compromise — Proce-
dure— Possession. B sued his brother C for pos-
session of certain lands. B and C came to an ami-
cable settlement, one of the terms of which was that
C during his life should retain possession of certain
>of the lands, and that after his death they should
pass to B. A decree was given in accordance with
the terms of the compromise. On C's death, his
widow refused to put B in possession of the lands.
,B sought to obtain possession of the lands, with
mesne profits, by executing the decree under the
compromise against C's widow. Held, that he ought
to proceed by regular suit. Tara Maj."! Dasi v.
Radha .Jibax Mustafi

6 B. L. R. Ap. 142 : 14 W. R. 485

32. Reversal of decree — Decree

lor possession — Mesne profits in execution of decree.
\N obtained a decree against A for certain lands,
ind was put in possession of them in execution of
the decree. On appeal the decree agaist A was
eversed, and the lands were accordingly restored to
lim, but no provision was made as to the mesne
irofits received by N when he was in possession of
ihe lands under the decree of the lower Court. In a
luit brought by A against N to recover such mesne
profits, it was held that the suit would lie, and was
lot prohibited by s. 11 of Act XXIII of 1861.
iBHKAM Ali v. Natha Jallam 5 Bom, A. C. 74

33. Decree for pos-

<eision — Ej ecution of decree. A sued B and obtained
)08session of certain property under a decree. On
ippeal this decree was reversed. The judgment
ind decree of the Appellate Court made no order
ibout mesne profits which had accrued during the

VOL. III.

MESNE PROFITS-con/cf.

2. ASSESSMENT IN EXECUTION AND SUITS
FOR MESNE PROFITS— con^rf.

time the land was in possession of J. £ thereupon,
seeking execution of the Appellate Court's decree,
applied to be reinstated in possession, and also for
an order awarding her mesne profits for the
time during which she was out of possession of the
said lands. Held, that, upon such application, it
was competent for the Court to cause restitution
to be made of all that the party against whom the
erroneous decree had been enforced had been de-
prived of by such enforcement. Lati Kooeb v.

SOBADRA KOOER

I. L. R. 3 Calc. 720 : 2 C. L. R. 75

34.

Decree for pos-

session of immoveable property — Reversal of decree
on appeal — Appellate decree silent as to mesne pro-
fits— Suit for recovery of mesne profits — Civil Pro-
cedure Code, 1SS2, s. 244. The plaintiff in a suit for
possession of immoveable property obtained a de-
cree for possession thereof, and in execution of the
decree obtained possession of the propertj'. This
decree was subsequently reversed on appeal by the
defendant. The decree of the Appellate Court was
silent in respect of the mesne profits which the
plaintiff had received while in possession. The
defendant instituted a suit to recover those profits.
Held, per Pethebam, C.J., Old field, Beod-
HUEST, and Duthoit, J J., that the suit was not
barred by s. 244 of the Civil Procedure Code, the
question raised by such suit, although it might
have arisen out of the decree of the Appellate Court,
not " relating to the execution, discharge, or satis-
faction of the decree " within the meaning of that
section (because at that time no such question had
arisen or was in existence), and therefore not one
in respect of which a separate suit is barred by
that section. Pertah Singh v. Beni Ram, 1. L. R.
2 All. 61, distinguished by Old field, J. Per
Mahmood, J. — That the suit was not barred by
s. 244, the mesne profits sought to be recovered not
having been realized in execution of the decree
reversed on appeal. Per Duthoit, J. — The words
in cl. (c) of s. 244, " any other question arising,"
etc., should be rtad as "'any other questions direct-
ly arising " otherwise the most remote inquiries
would be possible in the execution department.
Ram Ghulam v. Dwabka Rai I. Ii. R. 7 All, 170

35.

Decree for pos-

session of immoveable property — E.i ecution of de-
cree— Reversal of decree on appeal — Mesne pro-
fits—Civil Procedure Code, s. 5S3. G obtained a
decree against R for possession of a house, and in
execution thereof obtained possession. On appeal
the decree was set aside by the High Couit, whose
decree did not direct that the appellant should be
restored to possession and was silent as to mesne
profits. Held, that, with reference to s. 5S3 of the
Civil Procedure Code, R was entitled to recover
possession of the property in execution of the High
Court 's decree ; but that, with reference to the
decision of the Full Bench of the Court in Ratn
Ghulam v. Dvarka Rai, I. L. R. 7 AU. 170, h&

12 p

( 8227 )

DIGEST OF CASES.

( 8228 )

MESNE PROFITS— fott^d.

2. ASSESSMENT IN EXECUTION AND SUITS
FOR MESNE PROFITS— cow<(/.

could not, in execution of that decree, recover
mesne profits. Gannu Lal v. Ram Sahai

I. L. R. 7 All. 197

36. Execution of de-
cree— Posi^ession under decree — BeMtution of
property after reversal of decree — Civil Procedure
Code, 1882, s. 2U. A Court reversing a decree
under which possession of property has been taken,
has power to order restitution of the property taken
possession of and with it any mesne profits which
may have accrued during such possession.
MooKOOND Lal Pal Chowdhry v. Mahomed Sami
Meah . . I. L. R. 14 Cale. 484

37 — ■ Decree for pos-

session of immoveable property — Reversal of decree
on appeal— Suit for recovery of mesne profits from
person who has taken possession under a decree
which is subsequently reversed on appeal — Civil
Procedure Code (Act XIV of 1882), s. 244. A land-
lord sued his tenant for arrears of rent, and obtained
a diicree for a certain amount and a declaration that
if the amount were not paid within fifteen days, the
tenant should be ejected under s. 52, Bengal Act
VIII of 1869. The amount was not paid, and the
landlord executed the decree and obtained posses-
sion. The tenant appealed and succeeded in get-
ting the decree set aside and the amount found due
from him for arrears by the first Court was
reduced, and a decree made directing that, if the
reduced amount were not paid within fifteen da3-s,
he should be ejected. He paid the amount found
due by the Appellate Court within the fifteen days
and recovered possession of his holding. He then
brought a suit in the Munsif's Court to recover
mesne profits from his landlord for the time he
was in possession after the execution of the first
Court's decree. It was contended on second ap-
peal that the suit would not lie, as the matter
might and should have been determined in the
execution department under s. 244 of the Civil
Procedure Code. Qutrre : Whether such a suit
does not lie, and whether the decisions in Lati Kooer
V. Sahodra Kooer, 2 C. L. R. 75, and analogous
cases to the effect that such a suit does not lie, are
correct. Ram Ghulam v. Dwarka Rai, I. L. R.
7 All. i 70, cited and approved. Azizuddin Hos-
SEiNv. Ramanugka Roy. I. L. R. 14 Calc. 605

38.

Civil Procedure

Code, s. 583. Claim for mesne profits on reversal of
decree for possession of land executed. A decree for
possession of immoveable property, having been
executed, was reversed on appeal. The defendant
applied under s. 583 of the Code of Civil Procedure
for restitution of the mesne profits taken by the
plaintiff. The lower Courts dismissed the applica-
tion on the ground that the proper remedy was by
suit. Held, that the defendant was entitled to the
relief claimed. Kalianasitndram v. Egnave-
DESWAEA . . . I. L. R. 11 Mad. 261

MESNE PROFITS— con^rf.

2. ASSESSMENT IN EXECUTION AND SUITJ
FOR MESNE PROFITS— con<d.

39. ■ Execution o,

decree in suit for possession — Execution pending
appeal — Reversal of decree on appeal and restoratior.
of possession — Rifjht to restitution of mesne profits-
Civil Procedure Code, 1882, ss. 244 and 583-
Separfde suit. R brought a suit against K for pos-
session of certain land, and obtained a decree
K appealed, but pending the appeal R took posses
sion of the land in execution of his decree. K was
successful in the appeal, and was restored to pes
session in execution of the decree of the Appellati
Court, which, however, was silent as to mesne profitPi
In an application by K for mesne profits for thtj
period during which R was unlawfully in possessior
Held, that K was entitled to restitution of sue:
mesne profits in the execution proceedings, and ilj
was not necessary for him to bring a separate sui.
to recover them. He was entitled to such restitU'
tion either by reason of the power conferred by s.
583 of the Civil Procedure Code upon the Coun
which passed the decree {Kalianasundram v
Egnavedeswarn, I. L. R. 11 Mad. 261) or by reasor
of the inherent right that the Court has to order thf
restitution of the thing which had been improperlj
taken under the erroneous decree set aside in appeal
Mookoond Lal Pal Chowdhry v. Mahomed Sam
Meeah, I. L. R. 14 Calc. 484. referred to. Raj.'
Singh v. Kooldip Singh . I. L. R. 21 Calc. 88{

40.

Decree for

session and mesne profits for certain date to he fixec
in execution —Civil Procedure Code, 1882, s. 211
Where a decree directed that plaintiffs shouic
get mesne profits from a certain date till delivery o
possession, the amount to be fixed in execution :—
Held, that the decree was necessarily subject to th
limitation laid down in s. 211 of the Civil Procedur
Code (Act XIV of 1882), and that mesne profit
for more than three years from the date of the decrei|
should not be awarded, even though possessioi:
was not delivered during that period. Naraya:
GoviND Manik v. Song Sadashiv

I. L. R. 24 Bom. 34i

Uttanoram v. Kjshordas

41.

I. L. R. 24 Bom. 14i
Separate suit for mesn

profits— Decree holder kept out of possession-
Act XXIII of 18'11. s. 11. Mesne profits for th
period during which the decree-holder was execu'
ing the decree and was kept out of possession by tb
opposite party may be awarded by the Court und(
s. 11, Act XXIII "of 1861. It is not necessary t
bring a separate suit. Hooktjm Bebee v. Mahome
:\IoosA Khan . . . 6 W. R. Mis. 1

42. Mesne profii

accruing after decree. Held, that no separate su:
would lie for mesne profits accruing during the pei
dency of the suit and delivery of possession. S. 1'
Act VIII of 1859, provides for mesne profits accri
ing before the suit. OoNKUR Das v. Heeea Sing

1 Agra 14

{ 82i

DIGEST OF CASES.

( 82:iO )

MESNE PROFITS— cowftZ.

2 ASSESSMENT IN EXECUTION AND SUITS
FOR MESNE PROFITS— co7tW.

Ram Shunker v. Lalee Baee . 2 Agra 268
Shunker Lall v. Ram Lall

1 W. W. 177 : Ed. 1873, 256
43.^ Ad XXIII of

IStil, s. 11 — Mesne profits accruing after decree.
Even with the permission of the Civil Court, a
separate suit cannot be brought for mesne profits
between the institution of the original suit and the
execution of the decree thereon. Act XXIII of
1801, s. 11. commented on. Chennapa Nayudf
V. Pitch I Reddi . . . 1 Mad. 453

Narayana Aiyan

44.

Srinivasa Aiyan"

2 Mad. 435
Prior suit for

possession without mesne profits. A party can bring
a suit for mesne profits after he has obtained a decree
for possession in a prior suit, in which no provision
had been made in the valuation of the suit for
mesne profits. Shivasundari Devi ?\ Ramshama-
yat Kurmi . 1 B. L, R. S. N, 3

45. _ Application for assessment

— Application for determination of mesne profits —
Effect of dismissal of such an application — Execution
of decree — Practice. Applications to determine
mesne profits are to be treated as applications for
execution of the decree in which the mesne profits
^ave been allowed, and their striking oif does not
finally decide them or prevent the decree-holders
from making a further application of the same
nature. Muhesh Nurain Singh v. Kiskanund Misr.
9 Moo. I. A. 324, relied upon. Puran Chand v. Roy
Radha Kishen, I. L. P. 19 Calc. 132, and Kewal
Kishan Singh v. Sookhari. I. L. R. 24 Calc. 173, dis-
< iissed and distinguished. Ram Kishore Ghose v.
t;uri Kant Shaha (1900) I. L. R. 28 Calc. 242

46. Decree for mesne

frofits to he subsequently assessed — Application for

■ <<essment of mesne profits not an application in

■ r.cution, but an application in the suit. Held, that
■vhere a decree awards mesne profits to be subse-
«|uently assessed, an application for the assess-
ment of such mesne profits is not an application

11 execution of the decree, which does not be-
anie an " operative decree" until such assess-
ment is completed, but is an application in the
suit in which the decree is made. Radha Prasad
Singh v. Lai Sahib Rai, I. L. R. 13 All. 53, and
Puran Chand v. Roy Radha Kishen, I. L. R. 19
Calc. 132, followed. Kallu Rai v. Fahiman, I. L.
R. 13 All. 124 ; TarH Ram v. Man Singh, I. L. R.
^ All. 492 ; and Daya Kishan v. Nanhi Begam. I. L.
/?. 20 All. 301, referred to. Muhammad Umarjax
Khan v. Zinat Begam (1903)

I. L. R. 25 AIL 385

*7. Attachment of property of

wrong person— Da/// fl^rrw and me,nc profits. .■<uit
tor— Attachment of the property of a wrong
l^rson at the in4ance of a third person— Criminal
Procedure Code {Act V of 1889), s. 88— Secretary of

MESNE PROFITS— c(m/(f.

2. ASSESSMENT IN EXECUTION AND SUIT3
FOR MESNE PROFITS— co«/<f.

State for Imlia in Council — Damages — Liability of
the person at whose instance the property wa-9 attached
— Act for the protection of Judicia' Officers {Act
XVIII of 1850). A suit was brought by the
plaintiS to recover possession of certain immove-
able property, with mesne profits, against the Secre-
tary of State for India in Council, Messrs. Ralli
Brothers & Co., and another person (defendants
Nos. 1 to 3), on the allegation that defendants No.
2 instituted a criminal proceeding against defendant
No. 3, who, not having appeared, the property in
dispute was attached at the instance of defendants
No. 2 as the property of the accused (defendant
No. 3), and that, notwithstanding a notice under
s. 424 of the Civil Procedure Code was served on
defendant No. 1 by the plaintiff, the property in
dispute which belonged to her was not released.
The defence of defendants Nos. 1 and 2 was that
they were not liable, whilst defendant No. 3 did not
enter appearance. Held, that, as the property
in suit belonged to the plaintiff, and was attached
as the property of defendant No. 3, who did not
appear within the time specified in the proclama-
tion, or at any time subsequently, and as, if the
property had belonged to defendant No. 3, it
would have been at the disposal of the Secretary of
State for India in Council (defendant No. 1) under
s. 88 of the Criminal Procedure Code, the defendant
No. 1 was liable for damages and mesne profits in
respect of the period subsequent to the date when
the property, if rightly attached, could have come
to be at the disposal of the Government. He'd,
further, that defendants No. 2 were also liable for
damages, as they, private prosecutors, through
legal and other agents, caused the attachment to
be effected. Soobjan Beebee v. Shaikh Shurceutool-
lah, 12 W. R. 329, referred to. Secretary of
State for India i'. Jagat Muhini Dvssi ( l!t H i

I. L. R. 28 Calc. 540
B.C. 6 C. W. JV. 75

48. Principle of assessment —

Posse.ssion — Principle of a<s,ssiim amomt of mesne
profit^! — Civil Procedure Cod' {Act XI' I of 1S\2^, .i.
244 — Second appeal — Ditermination of m- ■■fne profits.
Where a decree-holder was in constructive pos-
session by letting out the lands to tenants, before
ouster by the judgment-debtor, tlie mesne profits
should be measured by what would be a fair and
reasonable rent for the lands if the same had been
let out to tenants during the period uf unlawful
occupation of the wrong-doer. There is. ho\yever,
no general principle which can be made applicable
to every case of the kind. The propter principle
of assessing mesne profits in such cases will depend
upon the character of the possession held by the
decree-holder before ouster. Raghu Xandan Jha
v. Jalpa Pattap, 3 C. W. X. i4'<. distinguished.
Sttbja Pershad Narain Singh f. Rkip (1902)

I. li. R. 29 Calc. 622
s.c. 6 C. W. N. 409
49, . Profits not awarded by-
decree— £xeca<io» of d€CTce — Jurisdiction — C'li^

12 F 2

( 8231 )

DIGEST Ob CASES.

( 8232 )

MESNE PROriTS-cowW.

2. ASSESSMENT IN EXECUTION AND SUITS

FOR MESNE PROFITS— cowcW.
Procedure Code, ss. 211, 244. An order passed
in execution, giving to the plaintiff mesne profits
not awarded by the decree, is without jurisdiction.
Kalka Singh v. Paras Bam, L. R. 22 I. A. 6S,
followed. Muhavimad Abdul Majid v. Muhammad
Abdul Aziz, I. L. R. 19 All. 155, distinguished.
IsHARi Peeshad V. Ram Nabain Saha (1902)

6 C. W. N. 672

50.

-Reversal of decree — Civil Pro-

cedure Code, s. 155 — Decree reversed on appeal, after
possession obtained thereunder — Application for pos-
session and mesne profits — Disallowance of appli-
cation— Separate suit for mesne profits. S N ob-
tained a decree for foreclosure on a mortgage against
R R. Against this decree R R appealed to the
High Court ; but, pending the appeal, >S iV ob-
tained an order absolute for foreclosure, and got
possession of the mortgaged property. Subse-
quently the High Court set aside the order for
foreclosure, and modified the decree of the first
Court. R R paid up the amount found by the
decree of the High Court to be due by him. He
then applied to the Court for restoration of pos-
session of the mortgaged property, under s. 583 of
the Code of Civil Procedure, and for mesne profits
for the time during which he had been out of
possession. His appUcation for mesne profits was
rejected, and he thereupon filed a separate suit
for mesne profits. Hdd, that such a suit would
not lie, the plaintiff not having appealed from the
order refusing his application for mesne profits.
Raja Singh v. Kooldip Singh, 1. L. R. 21 Calc. 9S9,
referred to. Sri Nath Sahai v. Ram Ratax Lal
(1902) . . . , I. L. R. 24 All. 361
51. Set-off of expenditure by-

Hindu widow — Hindu Jaw — Hindu widow —
Widow in possession of deceased hicsband's property
ousted by adopted son — Maintenance — Set-off — Sums
expended on funeral ceremonies of late owner. A
Hindu widow, who had been for some years in pos-
session of the immoveable property for her deceased
husband, was ousted by a claimant who proved his
title as adopted son of the said deceased husband,
and a decree for mesne profits was given against the
widow. Hdd, on appeal in execution of the decree
forimesne profits, that, (i) in absence of evidence
of negligence, the decree-holder was entitled only
to the rents actually collected ; (ii) that the widow
was entitled to set off her claim for maintenance,
which was to be fixed with due regard to the ex-
tent of the property and the social position of the
widow ; and (iii) that the widow was entitled to
set off such reasonable amounts as might have been
expended by her on the funeral ceremonies of her
late husband, which the adopted son would other-
wise have been bound to perform. What was a
reasonable maintenance and what sum should be
allowed in respect of the funeral ceremonies under
the circumstances, considered. Nittokissoree Dos-
see V. Jogendro Nauth Mullick, L. R. 5 I. A. 55,
referred to. Dalel Ktxnwar v. Ambika Partap
Singh (1903) . . I. L. R. 25 All. 266

I MESNE PROFITS— con«rf.

I 3. MODE OF ASSESSMENT AND CALCULA-
i TION.

I 1. Time for ascertaining mesne

profits — Execution of decree. Where wasilat is

decreed, the mode of ascertaining it is rightly re-

I served for the proceedings in execution. Gule v.

j Maharaxee Sreemutty . . 15 W. R. 133

2. Ascertainment of mesne

I profits — Execution before all the mesne profits are

j ascertained — Power of Court executing decree.

Execution may issue with respect to ascertained wa-

silat, pending inquiry as to unascertained wasilat.

I In ascertaining and declaring the amount of wasilat

] due under a decree, the Court executing it has

i no power to alter the decree in respect to interest

awarded. Arfijnnissa Chowdhrain v. Kokibitn-

NisSA Chowdhrain . . . 24 W. R. 444

— Act

XXlll of
-Criminal Procedure Code, 1S59, s. 196.

1861, s. 11-

A decree for possession and mesne profits must,
with reference to s. 196, Civil Procedure Cod&,
1859, be held to mean mesne profits down to the
date of delivery of possession. Where the amount
of mesne profits is not expressly admitted, the
Court is bound to deal with it as if disputed, and
either to determine the amount at the trial or to
reserve it for assessment in execution. Dhueam
Narain Singh v. Bundhoo Ram . 12 "W. R. 75
But where everything is ordered to be ascertained
in the execution stage, both the period and amount
can be assessed. Htjrrehitr Mookerjee v. Mol-
lah Abdoolbur , . . 17 W. R. 209

4. ' Power of Court exe-
cuting decree. Where the suit is for mesne pro-
fits alone, the Court executing the decree is not com-
petent to fix the amount in the course of execution.
Bhoobunnesstjree Chowdhbain v. Manson

22 W. R. 160

5. Construction of

decree. Where a decree of the High Court simply
directed payment by way of damages of the proceed&
of a specified share of certain property : — Held, that
it left nothing to be determined in execution, ex-
cept the assessment of the rents and profits of the
share from which the defendants had wrongfully
kept the plaintiff' out of possession. DwARKA
Lall Mundur v. Nirundro Narain Singh

22 W. R. 461

6. Mode of calculation of

mesne profits — Decision of Court. The sum to|
be recovered in the case of a suit for mesne profits
is of the nature of damages to be assessed by a
proper exercise of the judicial discretion of the Court
which is charged with the trial of the case on its
merits ; and it is impossible to lay down a rigid
rule according to which those damages should
always be calculated. Hogg v. Dinonath Sree-
MANEE 8 W. R. 447

7. Interest— Damages

— Wasilat. Interest calculated upon yearly
rates of rent may, when claimed by the plaintiff in
his plaint, be given as an essential portion of the

( 8233 )

DIGEST OF CASES.

( 8234 )

MESNE VROTlTS—contd.

3. MODE OF ASSESSMENT AND CALCULA-
TION—con?rf.

<lamages which are recoverable by a person wrong-
fully kept out of possession of immoveable property.
Frotap Chunhr Borooahv. Surnomoyee, 14 W. B.
151, followed. The term " mesne profits " does not
include interest year by year on those profits,
Hurro Durga Chowdhrain v. Siirul Sundari Dabi,
1. L. R. 8 Calc. 332, followed. Principles stated
on which the calculation of mesne profits should be
based. Brojendko Coomar Roy v. Madhub
Chundek Ghose . I. li. B. 8 Calc. 343

See Ramdhul Singh v. Puemessukee Pekshad
Narain Singh . . . . 7 W. K. 78

8. Interest, los^ of

—Interest on mesne profits year hy year. The term
" mesne profits " means the amount which might
have been received from the land, deducting the
charges for collection ; and does not include dam-
age resulting from their not having been paid as
they became due, or loss of interest year by year.
Hurro Durga Chowdhrani v. Surut Sundari
Debi . . . . I. L. B. 8 Calc. 332
L. R. 9 I. A. 1

•reversing on appeal the decision of the High Court
in Hurro Durga Chowdhrani t. Sharrat Soon-
dery Da be a

I, L. R. 4 Calc. 674 : 3 C. L, K. 417

- Profits ohtai

11.

Cultivation of

MESNE PROriTS-con<(f.

3. MODE OF ASSESSMENT AND CALCULA-

llOiH—contd.

Tripoora Soonduree Debia r. Coomar Pbo-

MOTHONATH ROY . . 11 W. R. 533

Bishessuree Debia v. Monrx Chunder Bose
5 W. R. Mis. 35

from land hy ordinary diligence. Mesne profits
mean those profits which the person in actual wrong-
ful possession of the land did actually receive, or
might with ordinary and due diligence have re-
ceived, from that la'nd. Dwarkanath Mitter v.
Ramdhun Biswas ... 8 W. R. 103

DeSilva f. Teheranee . . 9 W. R. 374

10. —

— Collections hy

wrong-doer in excess of what could have heen col-
kcted ordinarily. A decree-holder is entitled as
mesne profits to whatever the wrong-doer has col-
lected though it be more than the decree-holder
himself might have ordinarily collected. Chunder
<3ooMAE Roy v. Kasheenauth Roy Chowdhry
5 W. R. Mis. 37

linds by person in u-rongful possession. When

person in wrongful possession of land has himself

occupied and cultivated it, the proper principle on

»vhich the amount of mesne profits is to be calculated

- to ascertain Avhat would have been a fair and

■ isonable rent for the land if the same had been let

> a tenant during the period of the unlawful oc-

upation by the wrong-doer. Asmut Kooer v.

NDURJEET Kooer , B. L, R. Sup. Vol. 1003

s.c. AsMED Kooer v, Indurjeet Kooer

9 W. R. 445

Bindabun Chunder Sircar v. Ruperts.

B. li. R. Sup. Vol. 1004 not
■Chardon r. Ajeet Singh . 12 W. R. 52

12.

Proper princi-

ple of ddermining amount of danviges. The plaint-
iffs obtained a decr^^e for ejectment against the
I defendants on the 4th Bhadra 1290 F., but they
did not obtain possession till Assarl301 F., they
brought the present suit to recover damages, claim-
ing R958 odd as the profits realized from the crops
during 1299. 1300. and 1301. Held, that the proper
principle upon which mesne profits should be
; assessed in cases like these is to ascertain what
i would have been a fair and reasonable rent for
the land if the same had been let to a tenant
during the period of unlawful occupation
] of the wrong-doer. Asmfd Koer v. Indurjtet
\ Kocr, 9 W. R. J4o ; B. L. R. Sup. Vol. 1003 ;
I Lnchmessur Singh v. Chairman of the Dar-
hhanga Municipality, L. R. 17 I. A. 90, 97, fol-
lowed. Raghu Nandan Jha v. Jalpa Pattap

3 C. W. N. 748

13.

Principle on

u-hich they should he assessed — Interest. In deter-
mining the amount payable to the holder of a decree
for mesne profits, a Court is bound to consider, not
what has been, or what with good management
might have been, realized by the party in wrongfu 1
possession, but what the decree-holder would have
realized if he had not been wrongfully dispossessed.
Under a decree for mesne profits, the decree-holder
is entitled to interest on such profits from the time at
which they would have come to him if he had not
been dispossessed. Luckhy Narain v. Kally
Puddo Banerjee

I. L. R. 4 Calc. 882 : 4 C. L. R. 60

14, Pri iciple en

which they should be assessed. In a case of wrong-
ful dispossession, the principle upon which wasilat
should be assessed is to ascertain what the actual
rents or proceeds of the estate were, and to make
the wrong-doer account for them to the party dis-
possessed, everything being assumed against the
wrong-doer. DooRGA Soonduree Debia ♦•. Shi-
beshuree Debia ... 8 W. R. 101

15_ . - As.'fts which

might have been rettUzcd — Amount actually col-
lected. Mesne profits are not limited to the amount
actuallv collected from an estate by the judgment
debtor," but must be calculated according to the
assets which might have been realized with due
diligence. Smith f. Sona Bibee

2 W. R. Mis. 10

Thakoor Doss Roy Chowdhry v. N<-iun Kiusto
Ghose 22 W. R. 128

lg_ Claim in plaint

Rent not received, but which might have been

( 8235

DIGEST OF CASES.

MESNE PROFITS— con«i.

3. MODE OF ASSESSMENT AND CALCULA-
TION—conirf.

received. When a party is declared entitled to a
decree for mesne profits, he is entitled not only to
recover as those profits such sums as may have been
collected and appropriated by others in wrongful
possession, but also such sums as he would have col-
lected had he been in possession, and which he has
been prevented from collecting by having been kept
wrongfully out of possession. If the plaint in a suit
for mesne profits claims only rents and profits
collected and received by the defendant, the plaint-
iff is not entitled to recover in respect of rents
not received, but which by the wrongful dis-
possession he has been prevented from collecting ;
but if there is an appropriate allegation he will be
entitled to recover in respect of such rents.

KOMEERUNNISSA BeGTTM V. HtTNOOMAN DoSS

Marsh. 122 : W. K. F. B. 40
1 Ind. Jur. O. S. 42 : I Hay 266

17.

Collection charges.

The principle on which v/asilat should be
where defendant has been compelled to relinquish
possession is, that he should be made to pay that
which plaintiff (decree-holder) would have enjoyed
if he had not been kept out of possession by the
wrongful act of defendant. Erfoonissa Chow-

DHRAIN V. RUKEEBOONISSA . . 9 W. R. 457

MoBARTjK Ali r. BoiSTUB Chtjrn Chowdhry

11 W. R. 25

18.

Trespasser not

allowed expenses of obtaining decrees for rent dur-
ing the term of his possession. Held, that a tres-
passer, who, after having been for some time in pos-
session of immoveable property, was ejected in exe-
cution of a decree obtained by the rightful owner,
could not have allowed to him in reduction of mesne
profits expenses incurred by him in obtaining de-
crees for rent against tenants on the property in
suit. Sharfitd-dix Khan v. Fatehyab Khan

I. L. R. 20 All. 208

19. «- — Liability on eject-
ment of raiyat — Loss by dispossession. A supe-
rior holder who dispossesses a raiyat is liable,
not merely for the profit which he makes by letting
out the land, but to make good the loss which the
raiyat sustains by being dispossessed. Huruck
Lall Shaha v. Sreenibash Kurmokar

15W. R. 428

20. Cultivating raiyat

ejected by zamindar. When a cultivating raiyat
is ejected by his zamindar, the mere rent of the
land realized by the zamindar from another tenant
is not necessarily the measure of the damage sus-
tained by the raiyat and recoverable by him as
mesne profits. Bhiro Chandra Mozoomdar v.
Bamundas Mookerjee

3 B. li. R. A. C. 88 : 11 W. R. 461
21. Sale by occupancy-
tenant — Decree in favour of land-holder against
p^irchaser for mesne profits — Mesne profits how to be

MESNE PROFITS^onW.

3. MODE OF ASSESSMENT AND CALCULA-
TION—cowici.

assessed. Where in a suit against an occupancy-
tenant and his vendor, the zamindar obtained
a decree for cancelment of the deed for sale, for
possession of the land by ejectment, and for mesne
profits from the date of suit to the date of recovery
of possession : — Held, that the mesne profits award-
ed must be assessed as damages against the vendee
as a trespasser, and that the proper measure of
such damages was not the rent which was payable
by the vendor, but the actual market value of the
land for the purpose of letting. Matuk Dhari
Singh v. Ali Naqi . . I, L. R. 10 AIL 15

22. Bate of rent. In

claiming wasilat for the period of wrongful dis-
possession, the owners are entitled to recover either
any profit which the wrong-doer derived from the
land or any rate of rent which they were receiving
at the time of dispossession. Joy Kishen Doss v.
Turnbull . . . . 24 W. R. 137

23. Held, that the

amount of rent actually received, together with that
which might with reasonable dilis^ence have been
collected, form the amount of mesne profits to which
a decree-holder is entitled. Evidence that the land'
was let for a certain amount is a prima facie proof
of the amount of mesne profits, and may be ac-
cepted by the Court unless the contrary be proved.
RuGHO Nath Dobey v. Huttee Dobey

1 Agra Mis. 17

The onus being on the person in wrongful pos-
session to show that the usual rents were not col-
lected. Oman v. Ram Go pal Mozoomdak

18 W. R. 251

24.

Proof of amount.

Mesne profits liable in execution of a decree are
the rents of an estate, minus costs of collection.
Government revenue, losses by desertion and
death of raiyats, by drought, etc. The proper means
of ascertaining their amount is to require the party
who has held possession, and against whom the
decree has passed, to produce his accounts, and, if
necessary, to compel him to do so. On him lies the
onus of proving the actual amount of mesne profits,
and if he fail to produce his accounts, he will only
have himself to blame if the amount awarded by the
Court is larger than the actual mesne profits. DiNO-
bundhoo Nundee v. Keshub Chunder Ghose
3 W. R. Mis. 25

Ramnath Chowdhry v. Digumber Roy

3 W. R. Mis. 30

Telfck Chand Baboo v. Soudaminee Dossee
23 W. R. 108

25. Proof of actual

collections. If a Court finds that a plaintiff has been
dispossessed of property he is pri7nd facie entitled
to mesne profits in respect of the period during
which he was dispossessed, and it is not necessary
for him to prove the actual collections made during
his dispossession. It is sufficient to show what is

( 8237 )

DIGEST OF CASES.

{ 8238

MESWE TnOYITa-^ ontd,

3. MODE OF ASSESSMENT AND CALCULA-
TION—cow<(^.

the annual profit which in ordinary years can be
collected. Thus it is sufficient to show the profits
for the years preceding or subsequent to the period
of dispossession. Bhawaxee Deex Sahoo v.
MoHUN Sahoo . 1 N. "W. 188 : Ed. 1873, 273

26.

Rents not re-

ceived— Expenses of collecting rents. In estimating
mesne profits, not merely the amount of rents actu-
ally received by the defendant, but also those which
he might hav'c received, and which can no longer be
collected, ought to be charged against him. On the
other hand, the reasonable expense of collecting the
rents may be allowed to him ; and if he has paid rent
, .o the zamindar, allowance may be made for such
payments. But he cannot be charged with pay-
I ments of rent made by the plaintiff to the zamin-
dar. Bessunessooree Dabea v. Tarasooxderee
Brahmixee. Mahomed Hajra v. Tarasoonderee
Brahminee . . Marsh. 201 : 1 Hay 577

27. Failure of

decree-holder to prove rate of rent. In estimating
the amount of mesne profits where a decree-holder
could not give satisfactory evidence as to the rates
at which he received rents and the collections he
made, the judgment-debtor was held liable for the
amount stated in the Collector's jammabandi,
mtmis the cost of collection, leaving him to recover
from Government what he has paid on account
of revenue, unless the sums so paid had already been
refunded bv Government to the decree-holder, i
Palmer v. Bal Gobind Doss . 7 W. K. 230 I

28. Landlord and

: tenant. Held, that the mode of estimating the
. amount of mesne profits in respect of a talukh held
by plaintiff under defendant was to ascertain the
■amount of profits which plaintiff could have real-
j ized from the talukh if he had not been dispossessed
j therefrom by the wrongful act of defendant ; and
I that, as there was no necessary relation between
I those profits and the amount of revenue payable
I by the latter oil account of the inferior holding,
isuch revenue could not be treated as an element
! in the calculation ; but that the amount of rent
payable by plaintiff to defendant ought to be de-
ducted from the gross calculation of the talukh.
Ueld, also, that there seemed no reason why the same ^
rule should not be adopted in this case merely
because the wrong-doer was the landlord. Bhy-
RUB Chuxder Mojoomdar v. Huro Prosuxxo

BhXITTACHARJEE. HFRO PrOSUNNO BnrTTACHARJEE

V. Bhyrub Chunder Mojoomdar

17 W. R. 257

88. Remission of

rent or neglect to make collection. The rule for the
assessment of mesne profits is, that the right of the
true owner is to all the profits of the land, and not
merely to the amount of the cash collections during
the time that he is illegally kept out of possession.
and the trespasser must be held resp(Misible for all
that he has realized, and received credit for every-

MESNE PROFITS— con^rf.

3. MODE OF ASSESSMENT AND CALCULA-
TIOX— con/</.

thing for which he is entitled to credit, such as
rents paid and charges for collection. He does not
lessen his responsibility by remitting rent or neg-
lecting to make collections. Kalee Debee v.
Modh(^o Soodux Chowdhry . 16 W. R. 171

30.

Gross produce

of estate — Value of produce. Mesne profits should
not be estimated on the gross produce of an estate
except when all other means of ascertaining them
fail. The rents due from the actual cultivators, or,
if he cultivate the land by his own servants, the
value of the produce, should be taken as the amount
of the mesne profits. Khemoxktree Debia v.
Modhoomutty Debia . . 4 W. R. Mis. 23

31.

Fair and rea-

sonuhle rent. In a suit for possession and wasilat,
where the plaintiff was the actual cultivator of the
land and obtained a decree, it was hehl that the Full
Bench ruling in Asmut Koer v. Inderjeat Koer,
B. L. R. Sup. Vol. 1003 • 9 W. R. 446, and not that
in the case of Saudanini Debi v. AnanA Chandra
Haldar, 7 B. L. R. 17 S note : 13 W. R. 37, was
applicable, and that plaintiff was entitled to such
fair and reasonable rent as the defendant might
have derived from the land had he left it during the
period of his wrongful occupation. Madhub
Chuxder Dctt r. Haradhcx Paul

14 W. R. 294

32.

not h>

self cultivating the laiul. The mode of calculation
laid down in Asmut Koer v. Indurjeet Koer, B. L. R.
Sup. Vol. 1003 : 9 W. R. 445, held to be appli-
cable also to a case where a person, the wrong-
doer, has not himself cultivated the land. Promo-
thoxath Roy v. Tripoora Sooxdi-ree Dabee

10 W. R. 463

33.

— Principle of

assessment — Person cultivating land. A suit by a
raiyat having been remanded with a view to the
assessment of mesne profits on the principle laid
down in Saudamini Debi v. Aihav-d Chandra Haldar,
7 B. L. R. 17S note : 13 W. R. 37, if it was found
that the plaintiff had himself cultivated the lands
before leasing them out to an indigo factory, the
first Court, finding this to be the case, assessed the
mesne profits accordingly, i.e., at the lowest rate
deposeii to by the plaintiff's witnesses. The
District Judge reversetl the decision on the ground
of a later rulinsi in Madhub Chutuler Dutt v. Hara-
dhun Paul, 14 W. R. 294. Held, that the Judge
ought to have followed the course indicated by the
order of remand. Held, also, that the special
respondent, if dissatisfiocl witli the order of remand,
ought to have applied for a review, and not hav-
ing done so he was not entitled to ask the Court to
go behind that order and consiilcr whether it was
wrong with reference to Madhub Chunder Dutt v.
Haradhun Paul, 14 \V. R. 204. Held, further, that
the later decision did not overrule the earlier one,
but referred to a different case, viz., that of a large

DIGEST OF CASES.

( 8240 )

MESNE PROFITS— conR

3. MODE OF ASSESSMENT AND CALCULA-
TION—coTifd.

zamindar entitled to rent only ; and that the Full
Bench ruling referred to in the later decision did
not intend to lay it down that a party who is
himself a cultivator is not entitled to recover the
profits which he would have made out of the
land by his own cultivation. Nursingh Roy «.
Anderson . . . . 19 W. R. 125

34.

Zerayet and hhow-

35.

Suit by cuUiva-

li lands — Production of accounts to show value
and produce of land. The loss of the party wrong-
fully kept out of possession must generally be mea-
sured by the actual profits arising from the usufruct
of the land during that time, on an occupation of the j
same character as that of the party wrongfully kept |
out of possession at the date of his ouster or of the I
last legal occupant whom the plaintiS claims to j
succeed to, if the plaintiff himself never entered
into possession. A difference in assessment should
be made between zerayet and bhowli lands, a de-
duction being allowed as to the former on account of
expenses of cultivation. As regards the produce
and value of the lands in such cases, it is the duty
of the judgment-debtor to produce his accounts and
to prove what were the real assets of the property.

ROOKUMEE KOOER V. RaII TuHUL RoY

17 W . R. 156

lor — Damages. Where the plaintiff, who was a
cultivator, sued for possession of certain land, of
which he had been dispossessed by the defendant,
with mesne profits, and the Judge gave him a
decree for possession, and as to mesne profits
decreed that the plaintiff should have the actual
profits realized from the land, and if that could not
be ascertained (as to which the burden of proof, he
said, should be on the defendant), then, according
to the capabilities of the soil in an average season,
making the deductions necessary on account of the
bad seasons, expense of cultivation, rise and fall
of prices, and cost of seed ; and in the case of indigo
the value of the raw produce and not of the manu-
factured article : — Held, that the principle on
which damages were awarded was a correct prin-
ciple, where the plaintiff was himself a cultivator-
Watson v. Pyari Lal Shaha . 7 B. L. R. 175

Saudamini Debee v. Anand Chandra Haldar
7 B. L. R. 178 note : 13 W. R. 37

36. Cultivator.

Where the party recovering possession of land of
which he was wrongfully dispossessed, and claiming
wasilat. is himself the cultivator, he is entitled to re-
cover the profits which he would have made out of
the land by the cultivation had he not been dispos-
sessed. NuR Singh Roy v. Anderson

lew. R, 21

Shistee Pershad Chuckerbittty v. Kttmla
Kant Roy . . . . 17 W. R. 348

37. _ Amount which

might have been received. Where o:ie party illegally

MESNE PROFITS— con<(Z.

3. MODE OF ASSESSMENT AND CALCULA
TION— con^d.

dispossesses another and lets his estate in farm, th
amount of the rent which the party wrongfulh
ousted might have ordinarily received had he beei
in possession, and not the amount of the farm rent
received during the wrongful possessor's incum
bency, will, unless any special custom be proved
be the measure of mesne profits to be awarded
Jttgurnath Singh v. Ahmedoollah

8 W. R. 13;

38. Vnprofitab]

lands. In executing a decree for mesne profits
Court does right in excluding from the account land
of such a nature as would, under ordinary circuDT
stances, yield no profit, regarding which it has n.'
been shown that the judgment-debtors had opportv;
nities of disposing of them for a profit. Bechara:
Dass v. Brojonath Pal Chowdhry 9 W. R. 36!

39. — ■ Vahie of pn

due; of jalkar. In a suit for wasilat, where it wa
decreed that the value of the produce of a jalka
should be ascertained in execution, the lower Aj
pellate Court was held to have come to a right cor
elusion without any error of law in taking the neai
est approximate value of the produce indicated b
the evidence and the plaintiff's statement. Enai
At.i v. Sobhnath Misser . . 15 "W. R. 25

40.

Cancclmertt

darpatni temire. A zamindar granted a patni 1
A, who granted a darpatni to B. The patni wf
sold for arrears of rent to C, who entered into posse
sion, cancelled B\ darpatni, and. after two year
possession, granted a darpatni to D. Meantime .'
the original patnidar, had the sale set aside in a n
gular suit brought for that purpose, and thereupc
B brought a suit against D alone for mesne prt
fits. Held, that D was entitled to be credited wit
the amount of rent which he had paid to h
patnidar, C, and with the expenses of collectio!
NuFFAR Ali Biswas v. Rameshar Bhumick

3C. L. R. 2

41. Decree-hold

wrongfully kept out of possession. A decree-hold'
who stands in the shoes of his judgment-debtor, bi
who has been wrongfully kept out of possession
land for which the judgment-debtor granted a leas
is entitled to receive the profit which the judgmen,
debtor made out of them, and which the decre
holder would have made had he been in posse
GooRoo Dyal Mcndur v. Gopal Singh

24 "W. R. 2*;
42. Suit for mes

profits against trespasser — Costs and expenses
trespasser in collection of rent. Held, by the ma
ority of the Full Bench, that a trespasser on tl
land of another should, in estimating the mes
profits which the owner of the land is entitled
recover from him, be allowed such costs of collec
ing the rents of the land as are ordinarily incurri
by the owner, where such trespasser has enten

( 8241 )

DIGEST OF CASES.

( 8242 )

ESNE T'ROFITS -contd.

MODE OF ASSESSMENT AND CALCULA-
TION—con^rf.

continued on the land in the exercise of a bond
:e claim of right ; but where he has entered or con-
lued on the land without any bond fide belief
at he was entitled so to do, the Court may re-
ie to allow such costs, although he may still claim
necessary payments such as Government revenue
ground rent. Per Stfart, C.J. — Whether
ch trespasser is a trespasser bond fide or not, he
mid be allowed such costs. Altaf Ali r. Lalji
w. ... I. L. R. 1 An. 518

43. Allowance for

raordinary -profits. Where a party is decreed
'tied to mesne profits, the trespasser cannot be
(.wed to urge that the owner would not have
iliaed as much from the land as he (the trespasser)
\ ; but if he had obtained extraordinary profits by
I? expenditure of capital on the land, allowance
;5iild be made for such expenditure. Sreenath
isE V. NoBiN Chunder Bose . 9 W. R. 473

44. Damages in-

■red by tenant in consequence of ejectment. A
'|idlord who ejects his tenant illegally and holds
, ssession as a wrong-doer, although he settles
'other tenant on the land, is liable, not only for
i? rent he receives under such possession, but also
■■ the damages incurred by the t<>nant whom he
|8 ejected, in consequence of the ejectment.

llHOMED AZMPL V. ChADEE LaLL PaNOEY

1 12 W. R. 104

45. — - Co-sJiarcrs —

trees for and against different parties. The
;>de of calculating mesne profits in cases of decrees
'j and against each of the parties is to calculate
Id rateably divide them, and then to allow a set-
I to the extent of the profits actually received by
bh sharer, the deficit in each year being made good

lare.

16 W. R. 294

46. Co-sharcrs — Fair

the party who received in excess of his sh
boY GoBiKD Naik v. Kalee Prosttnno Nai

d. Where the parties to a suit for certain land
d for the payment of mesne profits in respect of
! same were co-sharers in the estate comprising
;h land, and the defendants had themselves occu-
d and cultivated such land : — Held, that the most
.aonable and fittinc mode of assessing such mesne
>fit8 was to ascertain what would be a fair rent for
-"h land if it had been let to an ordinary tenant
d had not been cultivated by the defendants.
WOA Prosad v. Gajadar Prasad

I. L. R. 2 AIL 651

!17.

Costs of collec-

n of rent. Where a suit is decreed as one for
ssession with mesne profits, the decree-holder is
t barred from asking the Court, under s. 197,
'■il Procedure Code, to inquire into the amount of
«ne profits in execution. In decreeing mesne pro-
:», a Court has no right to disallow the costs of
lection on the assumption that a large zamindar

MESNE PROFITS— con<rf.

3. MODE

OF ASS ESS M EN r
Tlnyi—contd.

AND CALCULA-

can collect rents without costs. Gooroo Doss
Roy v. Anund Moyee Debia . 15 W. R. 203

48.

Mn>tngii

ures. Where the custom of collecting rents from
mustagirs prevails, the mustagiri jumma is to be the
basis of account of mesne profits to be recover-
ed from a judgment-debtor. AnMEn P.ezah v.
Enaet Hossein . . 1 W. R. Mis. 20

49.

- Eenl left un-

collected. In a suit for mesne profits the defendant
cannot have credit for rents which he has left un-
collected from the raiyats. MrHROOA ?•. Heera-
Ram Misser .... 1 Hay 277

50. — '■ . — Value of trees

cut down — Decree for mesne profits. The value of
trees cut down and appropriated by a judgment-
debtor, against whom a decree with mesne profits
has been given, may be included in the mesne pro-
fits for which the judcment-debtor. whilst in
wrongful pos-session, is liable. Br.vEED S'xr.H r.
SUDASEEB DUTT . . . 2 W. R. Mis. 50

51. . Suruniamee,

upon what profits to be allowed. Surunjamee
should be allowed upon the amount actually col-
lected and not upon the net proceeds coming to the
zamindar. Erfoonissa Chowdhraix v. Rfkeeb-
ooNissA 9 W. R. 457

52. — Average of

several years. Decree of Sudder Court estimating
the amount of mesne profits from the average of two
preceding j'ears, as ascertained in a former suit
(the evidence in the present being unsatisfact<.ry
on both sides), upheld. Sooriah Row v. Exoo-
GUNTY Sooriah

5 W. R. P. C. 125 : 2 Moo. I. A. 12

53, Endoued lands

— Expenses of worship. In the case of endowed
lands, the judgment-debtor is entitled to a deduc-
tion, from the amount of mesne profits ascertained
to be due, of the expenses incurred by him in carry-
ing on the worship of the idols. Thakook Doss
Acharjee Chuckerbutty f. Shosher Bhoosi'S
Chatterjee .... 17W. R. 208

54^ . Mesiw profits

on accreted land — Presumption as to quantity of
land under cultivation — Evidence. In determining
the mesne profits upon alluvial land gained by ac-
cretion and xlecreed to the respondent, the amount
of such profits depending upon the quantity of
land that had been under cultivation during a
definite period, the Court.s below found that, at
the end of that time, an area of a certain number
of bighas was cultivated land. There was no evi-
dence, however, to show what liad been the increase
year by year of the area cultivated, and on this
"question the appellants objecting to the amount of
the mesne profits assessed by the Court could have
])roduced evidence consisting of the papers usually
kept in a zamindari serishta showing how gradual

( 8243 )

DIGEST OF CASES.

( 8244 )

MESNE T-ROFITS—contd.

3. MODE OF ASSESSMENT AND CALCULA-
TION—cow^i.

the increase had been ; but these documents they
withheld. Held, by the Privy Council, that on the
above fact the Courts had properly presumed
against them that the entire area of all the bighas
above mentioned had come under cultivation from
the beginning of the period. Mahabir Pershad
V. Radha Pershad Singh I. L. B. 18 Calc. 540

55. ■- Mesne profits,

ascertainment of — Deductions claimed. Where a
decree awarded mesne profits of the lands claimed
in the suit, and the Court declined, in execution of
the decree, to investigate questions relating to the
deductions claimed by the defendant, on the ground
that to do so would be " to go behind the decree,"
and that it was not competent to the Court to do
that in executing the decree : — Held, that the mesne
profits could only be ascertained after making de-
ductions from the gross earnings for all such pay-
ments made by the defendant as the plaintiff would
have been bound to make if he had been in posses-
sion. It was therefore the duty of the Court exe-
cuting the decree to inquire into the payments
which the defendant alleged he had made, and also
to determine the question whether, as alleged by
the plaintiff, the lands forming the subject-matter
of the suit were rent-free. Kachar Ala Chela
V. Oghadbhai Thakarshi. OGHA-nBHAT Thakar-
shi v. Kachar Ala Chela . I. li. R. 17 Bom. 35

56. Assessment of

mesne profits in execution — Civil Procedure Code
{Act XIV of 1882), s. 211— Local investigation hy
Ameen — Civil Procedure Code, ss. 392, 393 — Dak-
hilas or rent-receipts of tenants — Rents which by
ordinary diligence might have been obtained — In-
terest— Discretion of Court in declining to take
evidence after the report. The Court executing a
decree for mesne profits commissioned an Ameen,
under s. 392 of the Civil Procedure Code, to make
a local investigation as to them. He was unable
to obtain the rent dakhilas of tenants. He in-
quired as to the prevailing rates of rent for the land
which he m«asured, and included in his estimate of
the mesne profits rents which with ordinary dili-
gence might have been obtained. Upon objections
taken the questions arose (i) whether the assess-
m.ent should have proceeded only upon the rent
actually realized, or the Ameen was right in taking
the rent last mentioned into the account ; (ii)
whether the evidence of the rent dakhilas was es-
sential : (iii) whether interest, not mentioned in
the decree, should have been allowed ; (iv) whether
or not evidence on the application of the objector
should have been taken by the Court after return of
the evidence taken in the locality by the Ameen
together with his report. Held, as to (i), that in-
clusion, in the assessment of mesne profits, of rents,
which at the prevailing rates might have been
received by ordinary diligence, was authorized bv
s. 211 of the Civil Procedure Code. As to (ii), that
the dakhilas were important evidence, but not
essentially necessary. As to (iii), that the expres-

MESNE F-ROTlTS-^ontd.

3. MODE OF ASSESSMENT AND CALCU i
TlON—contd.

sion " mesne profits " included, under a.
mterest on them ; but this could only be allc^
for not more than three years from the de-'
or until possession within that time. As to ;•
the question must be decided on general princ;t
m each case. In this instance judicial discrf)
had been rightly exercised in the Court execiii
the decree declining to take fresh evide f
Orish Chunder Lahiri v. Soshi Shikhares\
Roy ... I. L. R. 27 Calc. 5

L. R. 27 I. A L(
4 C. W. N 3

57.

Oudh To -h

dars' Belief Act, 1870— Interest on mesne pris
An under-proprietor, having been dispossessecoi
a manager of the superior estate, appointed u ei
the Oudh Talukhdars' Relief Act, 1870, recovec
possession under a decree, and afterwards suei oi
rnesne profits. Held, that a person who had o(
himself received the mesne profits having comeU
possession of the talukh upon its being releec
from management under the above Act, woulcoi
be chargeable with sums which, as it was allcid,
might have been received by way of mesne pr-ts,
but had not been received in consequence oihe
manager's wilful default ; there being nothir to
show that such talukhdar could be charged :th
anything more than was actually received by m.
There being no rule of law obliging the Coui to
allow interest upon mesne profits, it is amattifor
the discretion of the Court, upon considerate of
the facts whether to allow interest or not. I^H-
kanand v. Partab Naratn^ SrxGH

I. L. R. 10 Gale. 792 : I. R. 11 1. ^38

58.

Interest on

mesne profits not given by decree — Inieres\not
obtainable in execution — Civil Procedure 'de,
1882, s. 211 — Costs of collection of rents hy a\is-
passer in possession not to be set off against i\s»e
profits. A plaintiff sued for cancellation '
certain lease, and for ejectment of the def'
as a trespasser, and for mesne profits with i !
on such mesne profits. The decree which li
tained was a decree for cancellation of the
and ejectment of the defendant, and orderei
mesne profits should be ascertained in the exc'
department, but was silent as to interest,
that interest on the mesne profits could n
obtained in execution of the decree. Hurro ■':!"
Chowdhrani v. Surut Sundari Debi, I. £. { ^
Calc. 332, and Kishna Nand v. Kunwar Iftab
Narain Singh, I. L. E. 10 Calc. 792 : L. | Ji
I. A. 88, referred to. Held, also, that, as tlj de-
fendant had thrust himself into an estate ar! flot
acted in the exercise of a bond fide claim of pht,
he was not entitled to charge collection ex |nse*
in reduction of the mesne profits. McArtir *
Co. V. Cornwall, [1892] A. C. 75, distingvhed.
Abdul Ghafur v. Raja Ram

I. L. R. 22 A11262

( 8245 )

DIGEST OF CASES.

( 8246 )

m:}NB profits— coR<(f.

0 IDE OF ASSESSMENP AND CALCULA-
TION—conirf.

Experience of

h'ciding case — Evidence. In estimating

,.. ■ profits for a period of wrongful dispossession,

the vrer Courts were held to have pursued an incor-

-r (inrse in deciding upon the supposed personal

n. e of the Judges instead of upon evidence

re them. The Court ought to have done

lo estimate, from the evidence before it,

iild have been the net profits which the

-cd owner would have earned by the culti-

iring that period had he been in possession.

> Pershad Sixgh v. Crowdy

23 W. R. 15

Amount claimed

amount proved. The Court cannot give a

1 mount of mesne profits than is claimed,

aitl igh more is proved. Sooriah Row v. Cota-

OHl f BOOCHI.\H

5 W. R. P. C. 127 : 2 Moo. I. A. 113

C )R00 Doss Roy v. Buxshee Dhur Sein

15 W. R. 61

I ROC Lall Thakoor v. Forbes

7 W. R. 140

Decree for

nnuil larger than that claimed. A decree for
wafl.t for a larger sum than that mentioned in the
plaij was upheld in appeal, on the ground that the
M did not profess to do more than give the ap-

ite value of the produce of the land, and
-urn decreed had been found due after two

I'lal investigations. Pearee Soonduree
;'■' ;e v. Eshan Chunder Bose 16 "W. R. 302

Execution of

^mojtnt awarded in execution larger than
""d in plaint — Court Fees Act {VII of
11, para. 2. The plaintiff brought a suit
-sion and for a certain sum as mesne pro-
;i he assessed at three times the annual rent
ihe defendant by tenants in actual pos-
' the land. He obtained a decree for pos-
■ nd the decree ordered that the amount
I>rofits due to him should be determined
•eution proceedings. On an investigation
- im was found to be due to him for mesne
in that claimed by him in his suit. The
ilierefore paid the excess fee as provided
- of ». 11 of Act VII of 1870 ; but it was
the amount of mesne profits recoverable
Hist be limited to the amount claimed in
Babo(1jan Jha v. Byjnath Dutt

i. L. R. 6 Calc. 474

7 C. L. R. 539

Amount claimed

•»J"«n<— larger amount fovnd dw by Amecn. \
"ft^' a plaintiff, in bringing a suit for possession
«0>r mesne profits, approximately estimates the ,
•m«jit of such mesne profits at a certain sum. and
OW.is a decree which leaves the amount due as
"**l profits to be ascertained in execution, he is j

MESNE PRO FITS -ron^/.

3. MODE OF ASSESSMENT AND CALCULA-
TION—co/i^rf.

not bound down to the amount claimed in his
plaint ; but if more is found due to him he is
entitled on payment of further Court-fees to recover
the larger amount so found due. Baboojan Jha v.
Byjnath Dutt Jha, I. L. R. 6 Cnlr. 474, distinguished.
Jadoomoey Dabee v. Hafez Mahomed Ar.i Khax
I. L, R. 8 Calc. 295

64. Execution of^

decree — Amount -stated in plaint — EMoppel. \Vhen,.
in a suit for posses-sion of land and mesne profits
at a rate staterl in the plaint, a decree is passed
which directs that the amount of mesne profits be
ascertained in execution of the decree, the plaintiff
is not limited to the amount or rate stated in his
plaint, though it may be used as evidence asrainst
him in favour of the defendant. Baboojan Jha v.
Byjnath Dutt Jha, I. L. R. 6 Cnlr. 474, explained.
Gauri Prasad Koon-doo r. Reily

I. L. R. 9 Calc. 112 : 12 C. L. R. 41

HtJRRO GoBIN'D BhUKUT y. DiGUMBITREE DeBIA.

9 W. R. 217

65.

PlaintifiF both landlord

and tenant combined — Mrsne profif<. a.s.se.s.<-
ment of — Landlord and tenant, combined pn.tiiion of
— Costs. Where the position of the plaintiff is
that of landlord and tenant combined, and the
defendant, a sub-tenant, notwithstanding a notice
served upon him under s. 1(57 of the Bengal
Tenancy Act, 1885, withheld possession from the
plaintiff, the mesne profits must be assessed
on the value of the crops raised by the de-
fendant, and not upon the basis of the rent
which the rightful owner had been realising
from the tenants before dispossession. Gopal
Chunder Maxdal v. BnooBrx Monrx Chatter-
jee(1903)' . . . L li. R. 30 Calc. 536

66. Raiyati land— C/r/7 Procedure

Code {Act XIV of 1SS2), s. 211— Decree for pos-
session of zerait land. When land is raiyati, and
both the true owner and the trespasser are. under
ordinary circumstances, merely rent-receivers, a.«-
sessment of mesne profits should be made on the
basis of fair and reasonable rent. Ranee Asmed
Kooer v. Maharanee huhirieet Kooer. 9 M . R. 44-5 ;
Raghu SanAan Jha v. J(;//w Pattap. 3 C. ]V. X.
74S, relied upon. But wiien a raiyat, himself an
actual cultivator, is dispossessed of his fi<ld. the
measure of damages should be the value of the crops.
Nursinrj Roy v. John Anderson, 16 \V. R. 21. and
Soridaminee Dabee v. Anund Chunder Haldnr, 13 W.
B. ^r, relied upon. There is no distinction, in res-
pect of a.ssessment of mesne profits, between rniyi/i
land held by a raiyat and the proprietor's private
land ordinarily cultivated by him. except as to the
cost of cultivation. So, where a zamindar obtained
a decree for pos-ession against a trespasser on his
zerait land, which was in the direct possession of the-
former : Held, that the decree-holder was entitled
to get from the defendant as mesne profits the price
of tlie crops raised on the land, less the expenses for

( 8247 )

DIGEST OF CASES.

( 8248 )

MESNE T'ROFlTS-contd.

3. MODE OF ASSESSMENT AND CALCULA-
TION—cowcZci.

cultivation. Bookumee Kooer v. Ramtuhul Roy,
17 W. R. 156, and Surja Prasad Narain Singh v.
L. D. Reid, 6 C. W. N. 409, referred to. Laljee
Shahay Singh v. Walker (1902)

6 C. W. N. 732

67. Trespasser— C«-/7 Procedure

Code, s. 211 — Execution of decree — Allowance of
'Collection expenses to a trespasser against whom a
decree for mesne profits has been passed. Ordinarily,
in the case of a decree for mesne profits against a
trespasser in possession of immoveable property,
the collection expenses incurred by him during the
period of his possession will be allowed ; it is only
when the trespass is of a very aggravated character
that the Court, in the exercise of its discretion, may
refuse such expenses. McArtliur <t- Co. v. Cornwall,
11S92] A. C. 75, followed. Hurro Doorga Chow-
dhrani v. Maharani Surut Soondari Dehi, L. R.

9 LA. 1 ; Girish Chunder Lahiri v. Shoshi
Shikhareswar Roy, L. R. 27 I. A. 124 ; Altaf Air

.V. Lalji Mai, I. L. R. 1 All. 518; Sharf-
ud-din Khan v. Fatehyab Khan, I. L. R. 20 All.
208, and Shitah Dei v. Ajudhia Prasad, I. L. R.

10 All. 13, referred to. Abdul GnArrR v. Raja
Ram (1901) . . . I. L. R. 23 All. 252

68. Khamar land— Interest —

Mesne profits. In determining the amount of
mesne profits payable in respect of khamar land,
5 per cent, on the value of the actual produce
was held to be a sufficient allowance to meet the
cost of supervision and any other incidental charges
for which a proprietor, who is not an ordinary !
cultivator of his khamar land, may be liable.
Principles upon which mesne profits of khamar j
land should be assessed discussed. Interest j
as forming a part of the mesne profits or damages j
cannot be allowed for any period subsequent j
to that limited by s. 21 of the Gvil Procedure Code
(Act XIV of 1882). Interest at 6 per cent, and not j
12 per cent, was allowed on mesne profits after i
possession was delivered. Ijatflla Bhuyan v.
'Chandea Mohan Banerjee (1908)

12 C. W. N. 285 \

69. Zerait land— i?en< — Compcti.

tion rent — Assessment, principle of. As regards
zerait land, mesne profits should be assessed
'On the basis of produce or competition rent
and not customary rent. The character of the
possession before trespass should be ascertained
to arrive at the true measure of damages, because
such possession is a fair index of intention as to the
mode of occupations if there were no trespass.
Ijatulla Bhuyan v. Chandra Mohan Banerjee, 12
C. W. N. 285, and Gopal Chunder Mandal v.
Bhooban Mohun Chatterjee, I. L. R. 30 Calc. 536,
approved. Principle upon which mesne profits
should be assessed on the basis of produce or com-
petition rent discussed. Thakooranee Dassce v.
Bisheshur Mookerjee, B. L. R. F. B. 202 ; 3 W. R.
iAct X) 29, referred to. Lachmi Narain v. Maz-
HAR Abbas (1908) . I. L. R. 35 Gale. 1000

MESNE PROFITS— concW.

4. LIMITATION.

Limitation— J
tion Act (XV of 1877), s. 14, Sch. I ^
109 — ''Cause of a like nature"— Res jvdUa
Past and future mesne profits, previous suitor
Civil Procedure Code (Act XIV of 1882). s. 13 'x
III. For the purpose of limitation, mesne A
must be regarded as accruing due from day t la
unless shown to fall due otherwise so that all -s
profits due for the period antecedent to then
years previous to the institution of the suit aiibi
red. Thakore Lass Ray Chowhdry v. Nahiri ri
Ghose, 22 W. R. 126, distinguished. As
Fassih-ud-din, 1. L. R. 24 Calc. 413, refei'i
S. 14 of the Limitation Act does not entitle a ail
iff in a subsequent suit for mesne profits t '' d
duction of the period during which his previo si
was pending, when the Court in the previo si
did not pass a decree for mesne profits subs.ue
to the institution of the suit, either throui i
advertence or because the claim was not spiiai
pressed. Deo Prosad Singh v. Partab jir
I. L. R. 10 Calc. 86 ; Hem Chandra Chowl-y
Kali Prosanna Bhaduri, I. L. R. 30 Calc. 03
Sheth Kahandas Naranda^ v. Dahiabhai, I. R
Bom. 182 ; and Putali Meheti v. Tnlja, L.
3 Bom. 223, distinguished. S. 13 of the Civ Pi
cedure Code does not bar a suit for mesne )fi:
which was claimed in a previous suit betwe t
parties, but in regard to which the deer w
silent, the mesne profits claimed in the seco si
being for a period subsequent to the institu' n
the first suit. Mon Mahon Sirkar v. The S' 'i '
of State for India, I. L. R. 17 Calc. 968 ; P-
V. Madan Mohan Lai, I. L. R. 21 All. 425 ,
V. Sitaram, I. L. R. 19 Bom. 532 ; and A'..
dra V. Jagannatha, I. L. R. 14 Mad. 328, fo we
G. S. Hays v. Padmanand Singh (1905)

I. L. R. 32 Cal H

MIGRATING FAMILY.

See Hindu Law — Inheritance — Mba
iNG Families.

MILITARY AUTHORITIES, jnRlp»
TION OF. 1

I
See Jurisdiction of Criminal C<|8T-
European British Subjects. ] _

13 B. L
I. L. R. 5 Csu

MILITARY CODE.

See Small Cause Court, Mofussil
of Small Cause Courts.

5 Bom. A

MILITARY COURTS OF REQUES'

See Appeal — Acts — Military 'CRi

of Requests Act . 2 N. t 22

3N.F.7

See Jurisdiction — Question of ^^^
diction — Generally . 1 Agi 22

( 8249 )

DIGEST OF CAS !"-:».

( 8250 )

illTARY COURT OF REQUEST-

■old.

See Small Cause Court, Mofussil — Ju-
BiSDicTiox — Military Mex.

1 Mad. 443
2 Mad. 389 ; 439

1 Jurisdiction— Jc< XLII of

I. 20 tt -21 Vid., c. 66, s. 67. S. 6 of
ni 1860 did not alter or interfere with
; tion of the Military Courts of Requests
I by Stat. 20 & 21 Vict., c. 66, s. 67. |
\ r. Meddleton . . 1 Mad. 443 i

Act XI of \Q^1— Military

' ! {XII of 1S42)— Right of suit. The
- I .f Act XII of 1842 apply to all the Courts

I by Act XI of 1841, whether those Courts
A ithin or without British territory. It is
• on all persons claiming the priyilege of

l)y these Acts, when residents within can-
. to cause themselves to be registered. •

. Mooltax Mull . . 3 N". W. 70
Suit against Cantonment
ate. Act XI of 1841 did nut confer ;

II on a Military Court of Request to en- i
Miit against the Cantonment Magistrate j
M/nting the Government. Jodhraj v. j
i:xT Magistrate of Morar

1 N. W. 174 : Ed. 1873, 253 i

Procedure — Civil Procedure \

-.'>. ss. 114, 119. The Code of Civil Pro-
\ "i59, except so far as its provisions enact

ippeals from Subordinate Courts, did not
proceedings under Act XI of 1841 (Military

Requests Act). These proceedings are
, by the Act, and ss. 114 and 119 of the

•edure Code do not apply. Gunsam .
MooltanMull . . 2W". W. 192

ss. 2, VI— Persons beyond Bri-

■tory. Ss. 2 and 17 of Act XI of 1841
"• read together as regards persons
to Military Courts of Request beyond ;

rritory. Mooltan Mull v. Guxsam ,
3W. W. 75

S. 17 — Decree by default on non-

■:■'. of plaintiff. The term " rules in
■A a. 17 of Act XI of 1841 is to be in-
' as equivalent to " rules for the time
force." It is not competent for a
Requests to pronounce a decree (by de-
favour of defendant without considering
noe before it. Ghun'tham Doss v. Mool-
. 2N. W. 229

lARY DECORATION.

taking pawn of, from, soldier —
Nee Akmv Act, 1881. s. 156.

. li. R. 10 Mad. 108

' ARY OFFICER.

See Attachment — Subjects of Attach-

MEKT— Salary . . 7 N. W. 331

I. L. R. 1 All. 730

I L. R. 9 Mad. 170

I. L. R. 24 Calc. 102

I. L. R. 25 Mad. 402

MILITARY OFFICER-coftcW.

See SM.A.LL Cause Cuukt, Mufussil — .Ju-
risdiction— Military Me.v.

2 B. L. R. S. N. 3
2 Mad. 389 ; 439
See Summons, Service of.

11 B. L. R. Ap. 43

MILKIAT PROPERTY.

See Land Registrati.jn Act (Beng.
Act VII OF 1876), s. 7^.

I. L. R. 35 Calc. 747

MINERAL RIGHTS. LITA

See Injunction . I. L. R. 33 Calc. 462.
See Landlord and Tenant.

10 C. W. N. 17, 425 ; 738

See Lease.

See Mines and Minerals.

See Underground Rights.

1. Mukarari lease — Mines and

Minerals — Underground rights — Transfer of Pro-
perty Act {IV of 1SS2), s. lOS, cl. (o). The '
grant of a mukarari lease of a whole mouza
" niai hak hakuk " (with all rights) constitutes a
contract giving permanently to the lessee all the
lessor's rights in the lands leased, including the
right to work minerals. Sriram Chakravarti v.
Hari Narain Singh Deo, I. L. R. 33 Calc. -54 ;
Shama Charan Nandi v. Ahhiram Goswami, I. L. R.
33 Calc. 511, referred to. In re Purmandas Jee-
wandas, I. L. R. 7 Bom. 109, Prince Mahomed
Bukhtyar Shah v. Rani Dhojamani, 2 C. L. J. 2",
Tituram Mukerji v. Cohen, I. L. R. 33 Calc.
203, and Girish Chandra Chando v. Sirish Chamhu
Das, 9 C. W. N. 256, distinguished. Megh Lal
Pandey v. Rajkumar Thakur (1906)

I. L. R. 34 Calc. 358

2. Income-tax and roadcess —

Coal mines — Royalty -Whtthcr royalty assessable both
with road-cess and income-tax-^'' Owner " of mint —
Road-cess Act {Bengal Act IX of ISSO), ss. 6. 72—
Notice to Secretary of State — Waiver of notice. An
owner of mines (whether worked by himself or
lessees) is liable to pay both income-tax and road-
cess tax on the same net profits derived, or royalty
received, by him from the mines. Umed Rasul
Shaha v. Atlath Bandhu Chowdhuri, I. L. R. 2S Calc.
637, distinguished. Per Rampini, J.— The word
" owner " in s, 72 of the Road Cess Act (Bengal
IX of 1880), is applicable to the proprietor of the
land in which mines have been excavateil and who
receives a share of the profits in the form of royalty,
and is not restricted to the actual worker or the
lessee of the mines. Per Mookerjee, 7.— The
term " owner " in s. 72 of the Bengal Cess Act
of 1880 is used in a limited sense ; it means an
owner, who is in po3ses.sion of the mine or who
has control over it, and does not include a person
or body corporate, who merely receives a royalty.
Manindra Chandra Nandi f. Secretary of
"state fob India (1907) . I. L. R. 34 Calc. 257

( 8251 )

DIGEST OF CASES.

( 8252 )

TSfflNERALS.

See Debutter . I. Ij. R. 33 Calc. 511
See Grant . . 9 C. W. N. 1073

See Mines and Minerals.

jSVe Underground rights.

MINES AND MINERALS.

See Landlord and Tenant.

I. L. R. 33 Gale. 54

See Mineral Rights.

MINING COMPANY.

See Injunction . 10 C. W. N. 173

TVEINISTERIAL OFEICER.

;See Appeal— Orders.

3 B. li. R A. C. 370
14 W. R. 328

See Superintendence of High Court —
Charter Act, s. 15— Civil Cases.

19 W. R. 148

20 W. R. 470

1. Appointment— -4 c< XII of 1856,

s, 3 — Civil Court Ameens. The High Court had no
authority to interfere in the case of a person who
was not confirmed in an acting appointment of
Civil Court Ameen for which the Judge considered
some other candidate to be more fit. In the
matter of Doorga Doss Doss . 17 W. R. 226

2. Act XVI of 1S68

— Power of Subordinate Judges. Act XVI of 1868
contemplated that the selection and appointment of
persons to fill ministerial offices in the establish-
ments of Subordinate Judges should be left to those
Judges, the power of the Zillah Judge extending
merely to the approval or disapproval of the person
appointed. The latter' s refusal of sanction must be
based on grounds personal to the appointee ; and he
must not interfere and control the selection of per-
sons so as to influence the inferior Judge towards the
appointment of a particular candidate. In the
matter of the petition of Oolfut Hossein

13 W. R. 197

MINISTERIAL OFFICER— concZd.

■ ActXVIofl86S,
, Act XVI of 1868,

s. 9 — Muns if 's Court. Under
the nomination and appointment of the ministerial
officers of a Munsif's Court rested with the Munsif.
subject to the approval of the District Judge. If
the District Judge did not approve, he could refuse
his sanction, but the law did not permit him to
appoint any other person. In the matter of Raj
CooMAR GoopTO . . . 11 W. R. 354

4. . ■ Act XVI of 1868,

s. 9 — Appointment of serishtadar. In the matter
of the appointment of a serishtadar in a Munsif's
Court, it was held to be no irregularity or impro-
priety on the part of a Judge to call the attention
of the Munsif to a circular order of the High Court
communicating the wishes of Government that pre-
ference should be given to certain discharge officers.
Jn the matter of Anund Chunder Chuckerbutty
14 W. R. 376

9- Power of 'i

to interfere with appointment of serishtadar bM
sif. Where a Munsif appointed a person as-r
tadar in his Court and it did not appear tit
person so appointed was in any respect disq li
for the appointment, or that his appointmc
open to any sort of objection whatever, or 1 1
Munsif had neglected any of the prelimin;/
quiries or formalities prescribed for such ci-s
Held, that it was not competent to the Zillah k
merely on the ground that in his opinion the a;
of some other persons were superior to thosd
person appointed, to remove him from theS
and to direct the appointment of a differe ;
specified person. In the matter of the petm
Bhoyrub Chunder Deb . . TW. .'.

6. — Removal )ff.

■ — Power of Zillah Judge. A Zillah Judge ly

fuse to confirm the appointment, by a Suboin

Court, of a disqualified person as a inin;ei

officer, or may rescind such an appointmen]f i

made conformably to the rules prescribed ' '

High Court, and require the Subordinate C rt

make a fresh appointment after observance^ \

rules. But he has no authority, after a|w:

an appointment to stand for nine months, ' d

place the person so appointed and to appct i

other in his stead. In the matter of the vd on

Kally Prosunno Chatterjea . 7 W. Ii 2

7. - 'Rem.ova.l—Removal of m ur

— Power of Zillah Judge. A Zillah Judge: i

1 competent to remove a mohurrir from one un

I without any fault of his, and to subject him ■ 1(

j by requiring him to go to a distant Munsii

i the matter of Hurro Gobind Biswas

I 7W.]|a'

8. Dismissal— GroMwd fi d

missal. The fact of a ministerial officer csyi:
on a shop is not such an irregularity in his c du
as to justify his dismissal, /n re Komul L hi
Bhadoory . . . . 2 Hs 61

9. ^ Ground / d

missal. Private concerns of a ministerial tfic
need not generally be taken notice of by thlha
of a Court or office, but if they appear on t ta
of the record of a case to be such that he carol- 1
entrusted with any onerous duty, the head { th
office or Court is justified in dismissing hiipo
office. In the matter of the petition of IpD''
Hossein 2 H« Bl

MINOR.

1. Evidence OP Minority

2. Liability of minor on, .-v-ND Right[>

ENFORCE, Contracts

3. Liability for Torts

4. Custody of Minors (Act IX of IS

ETC.) .....

5. Representation of minor in Suit-

6. Compromise Decree.

7. Cases under Bombay Minors A

{XX OF 1864) . . . I

( 8253 )

DKiEST UK CASES.

( 8254 )

UNOB.—contd.

See Act XL of 1858.
See Arbitration — Reference or Sub-
mission TO Arbitration.

I. L. R. 24 Mad. 326
I. L. R. 27 Bom. 287

See Cheating . I. L. R. 32 Calc. 775

See Civil Procedure Code, 1882. s. 335.

I. L. R. 32 Bom. 404

See Civil Procedure Code. 1882. s 440.
I. li. R. 31 Bom. 413

See Civil Procedure Code, lss2, s. 462

I. li. R. 28 Ail. 585

10 C. W. N. 898

See Compromise —

Construction, Enforcing, Effect

of, and Setting aside Deeds of

Compromise I. L. R. 30 Calc. 613

Civil Procedure Code, 1882, s. 462.

13 C. W N. 163 I

Compromise of Suits under Civil i
Procedure Code.

I. L. R. 26 Bom. 109
7 C.W.N. 90
I. L. R. 34 Calc. 70
See Contract Act, 1872, s. 11.

I. li. R. 31 All. 21 I
See Court of Wards 12 C. W. U". 1065
Sec Declar.atory Decree, suit for — ■
Adoption . I. L. R. 30 Calc. 613 j
See Guardian.
See Guardian and Minor
See Guardian and Ward.

See Guardians and Wards Act (VIII op

1890).
See Hindu Law —
Alienation —
Alienation by Mother ;
Alien.ation by Father ;
Alienation by Widow — Aliena-
tion FOR Legal Necessity or
with Consent of Heirs or P>ever-
sioNERs . 6 C. "W, N. 905
See Hindu Law— Joint Family.

I. L. R. 32 Bom. 259

GUABDIAN.

-See Hindu Law — Joint Family.
See Hindu Law — Partition.
See Insolvent Act, s. 7.

I. L. R. 17 Bom. 411
I. L. R. 13 Calc. 68
See Limitation Act, 1877. s. 7.

I. L. R. 28 Calc. 465
i I. L. R. 29 Calc. 813

»J S.7AND Sch.II,Art. 11.

■ I. L. R. 26 Bom. 730

MINOR— con/rf.

See Limit.ation Act, 1877 —

SS. 7 AND 8 AND SCH. 1 1, ArT. 100.

I, L. R. 25 Mad. 26

ss. 7 AND 8 AND Scii. II. Akt. 170

I. L. R, 25 Mad. 431
s- 8 . . 6 C. W. N. 348

I. L. R. 25 All. 155
s. 19— Acknowledgment ok Debts
I. L. R. 13 Calc. 292
13 C. L. R. 112
I. L. R. 17 Mad. 221
I. L. R. 18 Mad. 456
I. L. R. 20 Bom. 61
I. L. R. 23 Calc. 374
I. L. R. 26 Calc. 51
See Mahomedan Law — G uardian.
See Majority Act.
See Majority, Age of.
See Minor Wife— Minority.

I. L. R. 31 Bom. 80
See Minority.

See P.ARTIES— Parties to Suits— Joint
Fa:mily . . I. L. R. 25 All. 378

See Partition . I. L. R, 28 Bom. 330
See Pauper Suit — Suits.

I. L. R. 3 Mad. 3

11 B. L. R. 373
See Plaint — For.m and Contents of

Plaint — Plaintiffs.

I. L. R. 12 Calc. 48

17 W. R. 144

20 W. R. 453

10 Bom. 414

See Practice — Civil Cases — Next

Friend . I. L. R. 16 Calc. 771

See Registration Act. 1877, s. 35.

I. L. R. 1 All. 465

L. R. 4 L A. 166

I. L. E. .5 All. 599

I. L. R. 8 Calc. 967

I. L. R. 21 Calc. 872

I. L. R. 21 AIL 281

See Review — Form of, and Procedure

on, Application 16 W. R. 231

See Succession Act, ss. 2 and 3.

12 B. L. R. 358
See Succession Certificate .\ct.

I. li. R. 28 Bom. 330 ; 344

adoption of-

See Hindu Law — Adoption.
— agreement on behalf of—

See Hindu Law — Partition —
Requisites for Partition.

I. L. R. 30 Calc. 738
Effect of Partition.

I. L. R. 30 Calc. 725

( 8255 )

DIGEST OF CASES.

( 8256 )

MINOR— conii.

"NLlNOB—contd.

custody of—
See Criminal Peocedxtre Code, s. 551.
I. L. R. 16 Calc. 487

See Custody of Children.

See Habeas Corpus 5 B. L. R. 418 ; 557
13 B. L. R. 160

— liability of, on contract —
See Estoppel — Estoppel by Conduct.
I. L. R. 30 Calc. 539
See Hindu Law — Contract — Promis-
sory Note . I. L. R. 26 Mad. 330
See Pleader — Remuneration.

I. L. R. 17 Mad. 306

minority of wife—

suit —

See Restitution of Conjugai. Rights.

I. L. R. 28 Calc. 37

non-appearance of guardian in

iSee Civil Procedure Code, 1882, s. 108.
5 C. W. N. 58

obtaining possession of, for

purposes of prostitution —

See Penal Code, ss. 372, 373.
partition suit—

of—

See Mahomedan Law — Partition.

13 C. W. N. 152

payment of interest on behalf

5ee Limitation Act, 1877, s. 20.

I. L. R. 29 Calc. 647

power of, to adopt or give per-

mission to adopt-

See Hmou Law — Adoption — Who may

OR MAY NOT ADOPT 15 W, R. 548

I. L. R. 1 Calc. 289

I. L. R. 15 Bom. 565

I. L. R. 18 Calc. 69

representation of minor in

suits—

)See Civil Procedure Code, 1882, s. 108.

I. L. R. 24 All. 383
See Civil Procedure Code, 1882, s. 244.

I. L. R. 31 All. 572

See Practice — Civil Cases— Next
friend . I. L. R. 28 Calc. 264

right of, to raise objection on

attaining majority—

See Limitation — Question op Limita-
tion . . 6 C. W. M". 348

right of, to revive execution pro'

ceedings —

See Limitation . 11 C. "W. N. 831

sale of share of—

See HiN'DU Law — Joint Family— Few i
op Alienation by Members.

See Hindu Law— Joint Family— &,
OF Joint Family Property in Exic

TION, ETC.

suit by-

See Estoppel — Estoppel by CoNour
I. L. R. 29 Calc. Ji
See Mortgage . 11 C. W. N. ITl
See Revenue Sale Law, s. 33.

13 C. W. IT II

1. EVIDENCE OF MINORITY.

1. Plea of minority, deter; ji

ation of — Personal appearance of minor, 'h
j plea of minority should be decided on positive vi
dence, and not merely on the appearance o;h
alleged minor. Khetter Mohun Ghose v. Rjes
SUR Ghose . . . W. R. 1864, 0'

Kalee Haldar v. Sreeram Ghose.

W. R. 1864.61

2. LIABILITY OF MINOR ON, AND RIGT
TO ENFORCE, CONTRACTS.

Power to contract-.

saries — Authority to third person — Settleme o
account. Minors have a qualified power of coract
ing, and an implied or express contract for ces
saries is binding absolutely on a minor. A.S a ino
cannot himself, by reason of insufficient cacitj
for business, state and settle an account so slU b(
bound thereby, so neither can he authorize a chei
party to do for him that which he cannot do h'self
Bykuntnath Roy Chowdhry v. Pogose

5"wa.2

3. Voidable contract— Jc

1872, ss. 10, 11 — Bo7id — Minority of obligee.
tract entered into with a minor is merely v
at the option of the minor ; and there is noi
prevent him suing thereon, supposing the :
to be otherwise valid. Sashi Bhusan 1):
Jadu Nath Dutt . I, L, R. 11 Gal ' —

See Hari Ram v. Jitan Ram

3 B. L. R A,

4. Contract

minor. A contract entered into with a i
only voidable at the option of the minor.
Bhusa7i V. Jadu Nath Dutta, I. L. R. 11 Ca^
followed. Mahamed Arif v. Saraswati

I. li. R. 18 Ca,. 353

5. Contract A (^^

of 1872), ss. 10 and 11— Suit on a bond f^^ '"
a minor. A money-bond taken by a minor,' goo'^
in law, and may be sued on. Hanmant LaH^^^
V. Jayeao Narsinha . I. L. R. 13 B3i- 5"

6. Purchase from minor-^fl^^'

dity of purchase. A purchase from a mind'' '>''»

126

( 8257 )

DIGEST OF CASES.

( 8258 )

MINOR— rortW.

" LIABILITY OF MINOR ON, AND RIOHT
TO ENFORCE, CONTRACTS— cow^c/.

Rennie

Gtjnga Narain
3 W. B. 10

Ipso facto invalid.
Chowdhry

7. Pre-emption— 6'!(«rf?i«??.. The

circumstance that a co-sharer of a village was a
minor at the time of the preparation of the wajib-
ul-urz, and that document was not attested on his
bihalf by a guardian or duly authorized representa-
tive, is not a reason for excluding him from the
benefit of the provisions of that document relating
to pre-emption. Lal Bahadur Singh v. Durga
SiNOH . . . I. L. R. 3 A1L437

8. Right of minor to contract

— Contract hy a minor — Specific performance of
rontract, right of minor to enforce — Contract Act
\1X of 1S12), s. 11. A minor in this country cannot
^maintain a suit for specific performance ot a contract
entered into on his behalf by his guardian. Flight v.
Bolland, 4 Russ 29S, followed. Semhle : Having
regard to the provisions of s. 11 of the Contract Act
((IX of 1872), a minor in this country cannot con-
tract at all. Mahamed Arif v. Sarasicati Dehya,
I. L. R. 18 Cak. 259, and Hanmant Lakshman v.
■Jayarao Nursinha, 1. L. R. 13 Bom. 50, referred
to. Fatima Bibi v. Debnath Shah

I. L. R. 20 Calc. 5C8

Dissented from in Krishnasami v. Suxdar-
iPPAYYAR . . I. L. R, 18 Mad. 415

nd Khairuxnessa Bibi v. Loke Nath Pal

I. li. R. 27 Calc. 276 |

f». Capacity of minor to contract i

' '/'• of dowicih — Contract A't <IX of 1812). \
II and 12S — Suit on bond executed by minor I
'■-d iiot ratified on his attaining majority — Liabi- \
j!«y of surety of minor. By the law of England, the I
(uestion of the capacity of a person to enter into
I contract is decided by the law of his domicile,
t'his principle of English law is adopted by s. 11
f the Contract Act. A minor cannot be sued on

'"ind executed by him during minority, and
atified by him after his majority- -"^ surety

I ijond passed by a minor for moneys borrowed
,jr purposes of litigation not found to be necessary

I liable to be sued on it, whether the contract

II the minor is considered to be void or voidable.
oshiba v. Shripat Narshiv

\ I. L. R. 19 Bom. 697

^^- ~ Bond executed by minor —

^sartes — Suit against a minor on a registered
executed by him for necessaries — Contract
I /A' of is; 2), s. 68. On the 20th April 188(),
in of money was advanced by A to a minor, who
■ited a bond in respect thereof and duly register-
lie same. The money was required by the
!• to provide for his defence in certain criminal
•I'dings then pending against him on a charge I
n'oity, and was used by him for that purpose. I
iie 18th June 1892 A instituted a suit against
minor for the amount due on the bond. It
urged on behalf of the minor, who had not |
lied majority at the time the suit was filed, I

VOL. III.

MINOR— confrf.

2. LIABILITY OF MINOR ON, AND RIGHT
TO ENFORCE, CONTRACTS— <:o«/</.

that he was not liable to A for the amount advanced
that it was not advanced for " necessaries " :
that he was not liable under the bonfl. Held,
that, the liberty of the minor being at .stake, the
money advanced must be taken to have been
borrowed for " necessaries " within the meaning of
s. 68 of the Contract Act. In such a case the
bond being the basis of the suit, could not be
ignored and treated as non-existent, and, on its
being proved to have been executed by the minor
in respect of money advanced for necessaries, the
l)laintiff was entitled to a decree. Sham Ch.4RAN
Mal v. Chowdhry Debya Singh Pahra.i

I. L. R. 21 Calc. 872

11.

Loans to a minor— /»!?« ries

necessary to be made by lender- — Burden of proof.
A plaintiff who has advanced money to relieve the
necessities of a minor must make all reasonable
inquiries as to the facts of such necessities, and
having made such inquiries and reasonably enter-
taining a bond fide belief in the existence of such
necessities, he can advance his money in safety,
even though the sum borrowed by the guardian
upon the security of the minor's estate is not in
point of fact used for his necessities or his benefit.
On the other hand, a plaintiff who lends money
without such inquiries cannot thereafter successfully
have recourse to the minor's estate for the satisfac-
tion of the debt. Hanooman Pershad Panday v.
Munraj Koonu-eree. 6 Moo. I. A. -ibS, referred to.
Kandhia Lal v. Muna Bibi I. L. R, 20 An. 135
12. Capacity to contract— Con-

tract Act {IX of 1812), s. P —Ratification — Re ea.ie
hy minor father of his interest in joint property to his
son — Family arrangevunt — Vo untaiy conveyance
by father to son — Transaction impeached by subse-
quent creditors — Transfer of Property Act (IV of 1882),
s. 7. Per Farran, C.J., and Ranade, J. (FuLToy
J., dis.senting). — In India the contract of a minor is
not void, but voidable only, and is capable of rati-
fication after he attains majority. A release by a
minor father of all his right and interest in the
ancestral property to his »on held to be valid if
ratified by the donor after he attained majority.
V, a minor member of an umlivided Hindu family,
in 1887 executed a release of his right and interest
in certain ancestral property to bis minor son.
In 1882 the plaintiff obtained a decree against
him in respect of a debt incurred subsequently to
the date of the release, and he sought to attach
the released property in execution of his decree.
He impeached the validity of the release. Per
Ranade, J.— The property sought to be protected
by the release was admittedly ancestral property,
and I's minor son had a half share in it, of which
the minor could at any time claim partition. The
release was only intended to protect I "s one-half
share against the consequences of his own improvid-
ence. When all existing debts were paid off and
settled, V'a right to make a voluntary conveyance
of the 'same iu his minor son's interest cannot bo

12 G

{ 8259 )

DIGEST OF CASES.

{ 8260 )

MINOR— cowff?.

2. LIABILITY OF MINOR ON, AND RIGHT

TO ENFORCE, CONTRACTS— cowff/.
questioned. Such conveyances are well known in
English law, and there have been cases in India also
where Courts have given effect to such voluntary-
conveyances or gifts bj' a father to his son. Ganga
Sahai v. Hira Singh, I. L. B. 2 AU. S09. Such
transactions do not become colourable merely be-
cause in their ultimate consequences they have the
effect of protecting the family property against the
prospective extravagance of the settlor, or because
no adequate consideration is shown to have been
paid by the party benefited. Per Fulton, J. —
Apart from s. 7 of the Transfer of Property Act,
1882, which was not in force in the Presidency of
Bombay when the release of 1887 was executed,
a conveyance depends on a preceding contract,
and cannot be valid unless the party making it is
competent to contract. Without an antecedent
agreement to give and receive, there can be no
transfer at all. The power to convey must depend
on the power to contract. Unless it can be held
that the provisions of s. 10 of the Contract
Act were not meant to be exhaustive, and it was
intended to leave out of consideration agreements
by minors, we must hold that a minor is in-
competent to contract. Held by Farran, C. J.,
and FuLTOX, J. (Ranade, J., dissenting), that
the release was inoperative, and that the plaint-
iff was entitled to attach the property in execu-
tion of his decree. By Farran, C. J., on the
ground that it had not been ratified by V after
he' attained his majority. By Fulton, J., on the
ground that the release was absolutely void and
incapable of ratification. Per Farran, C.J., and
Ranade, J., (Fulton, J., dissenting), that the
release was voidable only at the option of the minor
( F), and was not void, and, if it was ratified or not
repudiated by him on attaining majority, it was,
in the absence of fraud, a valid transaction, at
least as against judgment-creditors whose debts
were of a subsequent date. Sadasiv Vaman
Dhamankar v. Trimbak Divakar Karundikar

I. L. R. 23 Bom. 143

13. Mortgage by infant whether

void or voidahle— Contract Act, s. 6 j— Evi-
dence Act, s. 114— Misrepresentation. In a suit by
a puisne mortgagee against the prior as well as the
subsequent mortgagees and the mortgagor's repre-
sentative where the subsequent mortgagees disputed
the validity of the mortgages prior to the plaintiff's
mortgage, but the plaintiff did not raise any issue
as to that :—He'd. (i) that in a suit by a puisne mort-
gagee upon his mortgage, a prior mortgagee is not a
necessary party, if such puisne mortgagee offer to
redeem his mortgage. When the validity of the
prior mortgage is in question, the offer to redeem
should be made conditionally on the establishment
■of such mortgage ; (i ) that the question of the
validity of the prior mortgages can be determined
in this suit between the co-defendants. The prior
mortgages were executed when the mortgagor was
•over 18, but under 21. A guardian of his person
had been appointed under Act XL of 1858, but

MINOR— co?i< 7.

2. LIABILITY OF MINOR ON. AND RIGHT

TO ENFORCE, CONTRACTS— confc/.
there was no evidence as to whether a certificate
of administration had also been granted under that
Act. The prior mortgagees thereupon contended
(1) that under Act XL of 18^8 a guardian of the
person could not be appointed unless a certificate
of administration was also granted, and there
being no evidence of the latter being granted,
this appointment of a guardian of the person alone
was ultra vires ; (2) that there was a fraudulent
representation by the mortgagor as to his power to
mortgage by which those claiming under him were
estopped ; (3) that the prior mortgages- were not
void, but only voidable ; and that therefore the'
prior mortgagees were entitled to such relief as i-
indicated by s. 64 of the Contract Act. Held
that, assuming (but without'deciding) the point (i
that under Act XL of 185S a guardian of the person
could not be appointed unless a certificate of admin-
istration was also granted, an independent appoint-,
ment of a guardian of the person might be made,
and, there being no evidence to show that the
certificate was not granted, the Court must presume
the regularity of the orders under s. 1 14, cl. (e) ol
the Evidence Act ; (ii) that with regard to fraudulent
representation, it is not enough to show that the
minor allowed the mortgagees to deal with bin
as though he were an adult, but it must be estab
lished that there was a fraudulent misrepresenta
tion, a fraudulent allegation that a state of things
existed in the truth of which representation th<
person had no honest belief ; that there waf
no evidence of this ; (iii) that on the authoritj
of the decisions of this Court the Court fel
bound to hold, though dissenting from the same
that the mortgages were only voidable, but heli
on the facts that the mortgages were avoided by th
mortgagor. Sashibhwsan Dutt v. Jadunath Dutt, 1
L. P. 11 Calc. 552 ; Mahomed Arif v. Saraswa,
Dabya, I. L. R. IS Calc. 259, doubted ; and (ivj
that such rights as might be created under s. 6J
of the Contract Act could not be enforced btj
tween the co-defendants in this suit. Raj Coomari
V. Preo Madhub Nundy . 1 C. W. N. 45

14. Liability of minor in equit!

— Representations as to age known to be false — Actic
on the contract — Actio7i framed in tort — Right of su
— Costs. Where an infant obtained a loan upc
the representation (which he knew to be fals'
that he was of age -.—Held that no suit to recov
the money could be maintained against hir
there being no obligation binding upon the infai
which could be enforced upon the contract either
law or in equity, but that the defendant should n
be allowed costs in either Court. Dhanmcll
RamChunderGhose . I. Ij. R. 24 Calc. 26;
1 C. W. N. 21

15. ^_ Fraudulent representatic

by minor that he -vp^as of age - Mortga.
A i-um of money was advan ed to a minor by
mortgagee secured by a mortgage of house proper
on the representation by the minor that he was

..Li

ICA )

DlOESr OF CASES.

( 8i

f/LTNOB^contd.

2. LIABILITY OF MINOR ON, AND RIGHT
TO ENFORCE, CONTRACTS— ro«/ri.

age, and the mortgagee was deceived by 6nch false
representation. Held, that the mortgagee was
entitled to a mortgage decree against the property
of the infant. Dhanmu'l v. Bam Chunder Ghose, I.
L. R. 2' Cole. 2'h5, distinguiehed and doubted.
Selson V. Stacker, 4 De Gex <L- J. 45S, /er Turner
L. J., applied. Saral Chand Mitter v. Moihn
BiBi . . . . I. L. R. 25 Calc. 371

2 C. W. N. 18 ; 201

16. Mortgage by minor — VoidaV.e
mortgage — Estoppel — Evidence Act (I of J872), s.
115— Fraud— Contract Act (IX of 1S72), s. hJ—
Restoration of benefit by minor. The general law
if estoppel as enacted by s. 115 of the Evidence

i.ct (I of 1872) will not apply to an infant, unless he
has practised fraud operating to deceive. A Court
ladministering equitable principles will deprive a
fraudulent minor of the benefit of a plea of infancy ;
|but he who invokes the aid of the Court must come
«ath clean hands and must establish, not only that a
traud was practised on him by the minor, but that
he was deceived into action by the fraud. Ganesh
Lain V. Bap\i, I. L. R. 21 Bom. 198, dissented
irom. Sarat Chunder v. Gopal Chunder Laha, I. L.
. R. 20 Calc. 296 ; Mill v. Fox, L. B. 37 Ch. D. 153 ;
Wright V. Snoiv, 2 De Gex & S. 321 ; and Nelson
V. Stacker, 4 De Gex <£• J. 4:58, discussed. If money
Advanced to an infant on a mortgage declared void
s spent by him, then there is no benefit which he is
jound to restore under the provisions of s. 64 of the
^ntract Act (IX of 1872). Dhurmo Dass Ghose
•.BrahmoDutt . I. L. R. 25 Calc. 616

2 C. W. N. 330

' Held (on appeal ailirming the above decision) —
j5. 115 of the Evidence Act has no application
|o contracts by infants ; but the term " person " in
ihat section applies only to p« person of full age,
j.nd competent to enter into contracts. The words
;' person " and " party " in e. 64 of the Contract Act
Ire interchangeable, and mean such a person as is
jeferred to in s. 11 of that Act. i.e', a person
I ompetent to contract. A mortgagor employing an
i.ttorney, who also acts for the mortgagee in the
iQOrtgage transaction, must be taken to have notice
f all facts brought to the knowledge of the attorney ;
nd therefore, where the Court rescinded the contract
f mortgage on the ground of the mortgagor's
ifancy, and found that the attorney had notice of
he infancy, or was put up m enquiry as to it. Ihld,
|i.ffirming the decision of Jenkins, J.), that the
mortgagor was not entitled to compensation under
lie pr.)vi8ions of ss. o3 and 41 of the Specific Relief
•ct. Ganesh Lala v. Bapu, I. L. B. 21 Bom. 19S,
issenti'd from. Mills \. Fox, L. B. 3 Ch. D. 153,
istinguished. Brohjio Dutt v. Diiaumo Das
HOSE . . . I. L. R. 26 Calc. 381

3 C, W. N. 468

17. Fraudulent representation
y minor that he was of age — Contract by
■inor. A minor representing himself to be of
ill age sold certain property to A and executed a

M.1N OB,— rontd.

2. LIABILITY OF MINOR ON, AND RIGHT
TO ENFORCE, CONTRACTS— co»//.

registered deed of sale. The dee^l contained a
recital that he was 22 years of age. Held, in a suit
by him to set aside the .=ale on the ground of
his minoritv, that he was estopped. Ganesh Lala
v.B.wv \ . . I. L. R. 21 Bom. 198

18.

Enhancement of rent.

effect of — Acts of mollifr and guardian how far
binding on minor son — KabuUat given by uidow
in possession to bind her son and successor to fay
enhanced rent decreed again.<it her. A patnidar
obtained decrees for the enhancement of the rent of
holdings in the possession of the widow of a deceased
tenant, one decree being in respect of land formerly
held by the latter, and the other in respect of a hold-
ing purchased by the widow, on behalf of her minor
son by the deceased, whilst the enhancement suits
were pending. The widow also signed kabuliats
relating to Vioth tenancies, agreeing, as mother of the
minor, to pay the enhanced rent. Held, that, as the
patnidar was entitled to sue for enhancement, and
it was not to be presumed that the mother held
adversely to her son ; also as she had come to what
she believed to be., and was, a proper arrangement,
the son, on his attaining full age and entering in-
to possession of the tenancies, was bound by the
kabuliats. Watson & Co. v. Sham Lall Mitter

I. L. R. 15 Calc. 8
L. R. 14 I. A. 178

19. Mortgage — Fou-crof minor to

take a mortgage. Observations by Stuart, C.J.
on the competency of a minor to take a mortcrasc.
Behaki Lal t'. Beni Lal . I. L. R. 3 All. 408

20.

-Act XL of iSoS,

s. 18 — Guardian and minor — Mortgage trilhout
the sanction of the Civil Court — Void contract —
Batification by minor. A minor cannot ratify a
mortgage of his immoveable propci-ty made by his
guardian appointed under Act XL of 1S5S, without
the sanction of the Civil Court, such a mortgage
being under s. IS of that Act void ab initio. Macji
RamV Tara Singh . I. K R. 3 All. 852

21. — Sale in execution

of decree— Usufructuary mortgage— Right of pur.

' ehasfr. The acts of a minor are only voidable, and

! not absolutely void. The purchaser of the right,

i title, and interest of a judgment-debtor sued to

obtain immediate possession of the property pur-

' chased at a .<ale held in execution of a decree after

setting aside an usufructuary mortgage executed by

the judgment-debtor while a minor. Hthl, that the

sale in execution merely transferred to the pur-

, chaser the reversionary right of the judgment-

debtor in the property, after the satisfaction of the

, usufructuary mortgage, and the right to set aside

i an act done during minority. Held, also, that, until

I a transaction by a minor was avoide<l by some

! distinct act on attaining majority, it must be

, considered valid. Hari Ram c. .Iitan IUm

! 3 B. L. R. A. C. 426 : 12 W. R. 378

12 G 2

( S2U3 )

L>ic;Eyi oi' CASKS.

( 82(j4 )

M.l'N on— cojhtd.

2. LI4BILITY OF MINOR ON. AND RIGHT
TO ENFORCE, CONTRACTS— co?i<(?.

See S 4SHI BnusAN Dtjtt v. Jadu Nath Dtjtt

I. L. E. 11 Gale. 552

Gvardian . and

jyiinor — Act VIII of 1S90 {Guardians and Wards
Act), ss. 29, 30 — Mortgage executed by a minor — Dis-
tinctio7i between such mortgage and a mortgage exe-
cuted by the certificated guardian on behalf of the
minor — Act XIX of 1873 (North-Western Provinces
Land-revenue Act), ss. 203, 205 B. A mortgage exe-
cuted by a minor is not void, but only voidable,
even where the minor has a certificated guardian
appointed by the Court. Where, therefore, a per-
son during " his minority had mortgaged with
possession certain immoveable property, and subse
quently after attaining his majority, had sold the
same property as unincumbered to a third party,
withoiit any notice to the mortgagee of his inten-
tion to avoid the mortgage, it was held that the
purchaser could not turn the mortgagee out of
possession. Maban Moha^^ v. Raxgi Lal

I. Ij. K, 23 All. 288

23. — Guardians and

Wards Act {VIII of 1890) ss. 29 and 30— Guardian
and manor-Mortgage by guardian of minor's property
— Previous permission of the Court of Wards not
obtain ed — Effect of mortgage. A mortgage, purport-
ing to bind the estate of a minor, was executed on
behalf of the minor by his mother, who was not
only the natural guardian of the minor, but a
certificated guardian under the provisions of the
Guardians and Wards Act, 1890._ The guardian,
however, had not obtained the permission required
by s. 29 of the above-mentioned Act. Held, that
the mortgage was not void, but, if the minor had in
fact benefited by the money borrowed, to that extent
the minor's estate ought to be held liable before he
was entitled to be relieved against the mortgage.
Girraj Balchsh v. Kazi II amid Ali, I. L. R. 9 All.
3,0, and Sinaya Pillai v. Munisami Ayyan, I. L.
P. 22 Mad. 289, followed. Nizamud-din Shah v.
Anandi Prasad, I. L. R. IS AU. 313, di.''tinguished.
TejPAL v. Gaxga (1902) . I. L. R. 25 All. 59

24. Contract with minor void

— Refund of money — Specific Relief Act (/ of ISil),
s. 41. The decision in Mohori Bibee v. Dharmodas
Ghose, I. L. R. 30 Calc. 539, is to the eflect that
a contract by a minor, such as a mortgage, is
void and that a money-lender, who has advanced
money to a minor on the security of the mort-
gage, is not entitled to repayment of the money
on a decree being made declaring the mortgage
invalid. That decision, however, is also an autho-
rity for the proposition that the circumstances of
a particular case may be such that having regard
to s. 41 of the Specific Relief Act (I of 1877), the
Court may, on adjudging the cancellation of an
instrument, require the party to whom such relief
is granted, to make any compensation to the other,
which justice may require. Datta Ram v. Vixayak
.1904) . . . I. L. R. 28 Bom. 181

MINOR— ro/^^ /•

2. LIABILITY OF MINOR ON. AND RIGH'I
TO ENFORCE, CONTRACTS— conW.

25. Contract on behalf of

minor — Mutuality — Specific performance of con-
tract, right of minor to enforce. Held by the Full
Bench, that, if a contract is validly entered into on
behalf of a minor and there is mutucJity in such
contract, it might be specifically enforced. It is-
difficult to lay down any general rule, but each
ca.se must depend upon its own particular circum-
stances. I\liR Sat?wabjax r. Fakhahtddtx Maho-
med CHOWDHrrEv (190(5) . I. L. R. 34 Calc. 163

26. Conti'aet by guardian — Con-
tract of sale and purcliase — Minor, coiitracl by guar-,
dian of — Specific performance — Personal liabiliiif.l
Held, that the contract in this case \\hich a guar '
dian had entered into on behalf of a minor, can be
specifically enforced. Fatinia Bibi v. Deb Naith
Sala. I. L. P. 20 Ca.c. 508. dissented from. AVooD-
ROFFE, J. — Specific performance may be granted
of a contract entered into by a guardian on behalf
of a minor, if the contract be one which being
within the guardian's power binds the minor'
An agreement for sale and purchase entered into
on behalf of a minor may be l^pecifically enforced
notwithstanding the fact that it involves _ a
personal liability to pay the price if the agree-
ment be carried out, and also damages in lieu
of or in addition to specific performance if thcj
agreement be broken. Waghela Rajsanjl v. Slieik\
Masludin, L. R. 14 I. A. 89, referred to.j
Mir Saewakjax v. Fakhrtiddix Mahomed
CnouDRY (190()) . . lie. W.N. 207

I.L. R. 34Calc. ie£

27.

irdian

minor — Bond by guardian — Liability of minor
Necessaries— Bo7id to keep alive debt due for nee-
saries — When binds minor's estate — Limitation-
Personal liahility. The propo.sition that a guardian
of a minor cannot bind his ward personally by 8
simple contract debt, by a covenant or by an>
promise to pay money or damages, is subject to th(
modification that the promise will not bind th'
minor, unless it has been made merely to keep alivi
a debt for which the ward's property was liable
Suhraminia Ayyar v. Arumuga Chelti, I. L. R. -'
Mad. 330, referred to. Where there is a prom-
to pay money, which has been expend
for ne'cessaries^ the estate of the minor may '
liable not on the promise, but because the moi;'
hp'J been supplied. Siindararaja Ai/i/cmrfar v. Pait'
thusam: Tever. I. L. R. 17 Mad. 30P., refenv.
to. It i5 e-.tabl shed law that a guardian canno
bnd hs ward,' e tate except by a documen
purporting to bind t. Maharann Shri Ranma
Singji V. Vadilal Vakhat C/.and, I. L. R. 20 Bom
61, referred to. When a third person enter
into dealings with the guardians of a minor an
advances money for necessaries for the minor o
for the benefit" of his estate and takes a, bm
for the debt from the guardian, the responabmt
rests on h m to take care that the bond i> to drav,

( 8205 )

DIGEST Ui<' CAS IS.

( 8206 )

'MimO'R—conti.

' LIABILFTY OF MINOR ON, AND RTGHT

TO ENFORCE, CONTRACTS- con W.
a-; to render the estate of the minor in law liable for
the fle.ht. Bhaw.m. Sahu v. Bai.t N atii Pertab
Narain Sixgh (1907) . I. L. R. 35 Caic. 320
s.e. 12 C. W. N. 256
28. ' " Wecessaries," what are —

< niract iv'th minor — Benefit o/ Minor — Wedding
).resents — Guardian, discharge, or death of — Majority
Act {IX of 187'). s. •? — Guardians and Wards
Act {VIII of ISW), s. o2. Where a jruardian has
once been validly appointed or declared the
minority docs not cease till the attainment of 21
■■•"^rs by the ward, and it is immaterial whether
■ guardian dies or is removed, or otherwise
ise to act. Rudra Prokash Misser v. Bhola Nath
dukerjee, I. L. R. 12 Gale. 612, Khawahish Alt v.
, Surju Premid Singh, I. L. R. 3 All. 'i98, Gordhandas
V. Harivedahhdas, I. L. R. 21 Bom. 2 -1, and Gopal
"' under Bo.se v. Gonesh Chunder Srememi, 4 C. L. J.
.' referred to. Patesri v. Cham pa Lai, 11 All. W.
. US, dissented from. Birj Mohnu Lai v. Rudra
Perkash Misser, I. L. R. 1' Calc. 91^, explained.
Sknram t. Krishnahai, I. L. R. 31 Bom. 80,
i Yeknath v. Wartibeii, I. L. R. 13 Bom. 285,
land Murujn'ram Murwari v. Gursahai Nand,
i 7. L. R. 17 Calc. 317, referred to. Naejardas
1 Vachraj v. Anandrao Bhai, I. L. R. 31 Bom. 590,
I distinguished. If an order of Court, M-hich has
'been erroneously made or irregularly obtained
■■- ^ribsequently revoked, the position of the party
' he same as if the order had never been made.
re Newman, [1899] 2 Q. B. 587, followed. ' Neces-
saries ' include articles fit to maintain the particular
j person in the state, degree and station in life in
1 which he is. Peters v. Fleming, 6 M. ,1- W. 42 ; 55
i /?. R. 495, followed. Rydtr v. Woomhvell, L. R. 3
I Exch. 90 ; 4 Exch. 32, and Waller v. Everard, [1891]
' 2 Q. B. 369, referred to. ' Necessaries ' must be
determined with reference to the fortune and
j circumstances of the particular infant. Wedding
nresents for the bride may be ' necessaries.' Jenner
Walker, 19 L. J. N. 'S. 398, Juggessur Sircar v.
'imbar Bisivas, 3 W. R. 217, and Makundi v.
nibsukh, I. L. R. 6 All. 417, referred to. Though
particular article furnished may correspond in
.lity and price with the infant's means, j'et if it
-iiiiuld turn out that the infant was already plenti-
fully supplied with the thing purchased, it does
not fall within the description of ' necessaries ' in
that particular case. Johnstone v. I\Iarl:s, 19 Q.
B. D. 5)9, followed. Infant can always show that
he was already plentifully supplied with similar
goods, and it is immaterial whether the seller knew
it or not. Barnes v. Toije, 13 Q. B. D. 410, and
FnrS, v. Fothergill, 1. Peak- 301; 3 R. R. ''95,
i'nved. It is incumbent upon one who sells
■lis to an infant to enquire into his circumstances
IS to determine not only whether the thing sold
-'ich an article as an infant of the station in life
"ho purchasers \^■ould require, but whether in
particular case the purchaser had need for it,
if the infant did not require it, the seller can-
; recover it. Johnson v. Lynes, 6 Waits <L-

MINOE— comW.

2. LIABILITY OF MINOR OX, AND RIGHT

TO ENFORCE, CONTRACTS-€o«cV/.
Sergeant 89, relied on. The question as to what
are ' necessaries ' is a mixed question of fact and law.
Peters v. Fleming, 6 M. d- W. 4:.>, Maddox v. Miller
1 M. rf- S. 738 ; 14 R. R. -65, and Wharton v. Macken-
zie, .0 (?. B. 606 ; 64 R. R. .584, referred to. The
mere fact that an infant has a father, mother or
guardian, does not prevent his being bound to pay
for what was actually necessary for him when
furnished, if neither his parents nor guardian did
anything towards his care or support. The test is
\\hether the articles supplied were needed for the
use of the infant. Call v. Ward, 4 Walls a- Sergeant
119, followed. Jagox Ram ^[Ai'.WAP.r r. Maha-
DEO Pkosad Sahu (1909) I. L. R. 36 Calc. 768
s.c. 13 C. W. N. 643

LIABILITY' FOR TORT;

Responsibility of minor for

his acts — As regards torts, a minor is responsible
for his own acts. Luchmon Doss v. Narayax

3 N. W. 191

4. CUSTODY OF MINORS (ACT IX OF ISGl,
ETC.).

1. Right to choose custody—

Habeas corpus, return to. A girl under sixteen
years of age has not such a discretion as enables her
by giving her consent to protect any one from the
criminal consequences of inducing her to leave the
protection of a lawful guardian ; but where the
return to the writ of habeas corpus stated that a
girl \vas above the age of sixteen f though her
mother stated her to be of the age of thirteen j-ears
and nine months), the Court held that she was of
years of discretion to choose for herself under whoso
protection she would remain. Queex v. \avghax.
In the matter of Gaxesh Suxdaby Debi

5 B. L. R.'418
In tht matt r of Khatija BiPi 5 B. L. R. 557

2. Application for custody of
minor davighter — Act XL of 1'<'S, s. 2 — Prin-
cipal Civil Court of original jurisdiction. An
application was made to a Munsif for the cu«tody of
a minor daughter, which, on appeal to the Civil
Judge, was dismissed. On appeal to the High
Court: — Held, all the proceedings must be quashed.
The application should have been made in the prin-
cipal Civil Court (f original jurisdiction in the
district. Harasvxdari Bai-stahi r. JAVADCRr.A
Baistabi . . 4 B, L. R. Ap. 36

s.c. HURO SOOXDUREE BoiSTOBEE V. Joy
DOORfJABoiSTOBEE .. . 13 W. R. 112

Kristo CnrxDER Acharjee v. Kashee Thafcoo-
RAXEE . . . 23 W. R. 340

3. Act IX of 1861— Cnnslruclion

of Act — Principal Civil Court of original juri.sdic-
tion. Scmblc : In Act IX of 1801, " the principal
Civil Court of original jurisdiction in the district "

( 8267 )

DIGEST OF CASES.

{ 8268 )

MINOE— co«/f/.

4 CUSTODY OF MINORS (ACT IX OF 1861,
ETC.)— contd.

means the principal Court of ordinary original civil
iurisdiction. Ram Bunsee Koomaeee v. Soobh
KooMAEEE . . 2 Ind. Jur. N. S. 193

s.c. Ram Bcxsee Kooxwaree v. Soobh Koon-
WAEEE 7W.E.321

4, Pegu — European British

minors. Act IX of 1861 applied to Pegu, and
also to minors, the lawful children of European
natural-born British subjects. In re Hutton

3 W. B. Eec. Ref. 5

Eu.ropean British minors.

custody of— Jitrisclicfion of Zillah Jvdge. Ap-
pellant having presented a petition to a Zillah
Judge under Act IX of 1861, claiming the possession
and custody of his two minor children alleged to be
detained by their mother, the parties being Euro-
pean British subjects -.-Held, that such Judge had
no power to entertain the application. In rh e matter
of the petition of Shaxxox . . 2 N. W. 79

6. ss. 1, 3, 4 — District Judge, Juris-
diction of— Civil Procedure Code, s. li — Majority
Act {IX of 1S;5), s. 3— Discretion of Courtr—
Guardian — Certificate of guardianslnp. An appli-
cation was made to the District Judge of Allaha-
bad, under s. 1 of Act IX of 1861, by a relative of a
minor, alleging that the minor had, by the acts and
with the connivance and assistance of the defend-
ants, at Allahabad, been removed from the plaint-
iff's custody and guardianship at .^llahabad, and
praying for the minor's restoration thereto. At the
time Avhen the application a^ as made, the minor was
at Lahore. Held, that, under ss. 1 and 4 of Act IX of
1861, read with s. 17 of the Civil Procedure Code, the
application was cognizable by the District Judge
of Allahabad, ^\here the cause of action arose ;
and that, even apart from s. 17 of the Code, the
minor having been in the custody and guardianship
of a person ■^^•ithin the jurisdiction of the Judge of
Allahabad, that officer had full jurisdiction to deal
with the application. Under s. 3 of Act IX of 1875
(the Indian Majority Act), a person under the age of
eighteen is a minor within the meaning of Act IX of
1861. No such restriction as is imposed by s. 27 of
Act XL of 1858, prohibiting the appointment of a
guardian of any minor whose father is living and is
not a minor, applies to persons applj'ing under s. 1 of
Act IX of 1861. Where the father of a minor was
fild and imable to ^^ork from age and weakness-, and
the minor's elder brother had been maintaining and
educating the minor at his own expense : — Held that,
under the circumstances, the brother was competent
to apply under s. 1 of Act IX of 1861, and to ask for
a certificate of guardianship. The words in s. 3 of
Act IX of 1861, " and thereupon proceed to make
such order as it shall think fit in respect to the
custody or guardianship of such minor," confer
on the Court an absolute discretion to make an
order as to custody or guardianship, or to refrain
from making such an order ^^ here the circumstances
do not call for such an order being made. Where a

MINOE— cowid.

4. CUSTODY OF MINORS (ACT IX OF 1861.
ETC.)— conW.

ss. 1, 3, 4 — concld.

minor Hindu over the age of sixteen ^ho had em-
braced Christianity and left the house of his elder
brother by whom he had been maintained and
brought up, appeared to be well able to take care of
and provide for himself and preferred to be left as
he was, and had sufficient mental capacity to judge
what was best for himself, the Court refused to make
any order upon an application by the brother for
his custody and guardianship. Sarat Chani-)r.\
Chakarbati v. Forman . I. Ij. R. 12 All. 213

7. s. 1—Act XL of 1S5S, 3. 12

— Jurisdiction of Civil Court. Where appli-
cation was made under Act IX of 1861, and an estate
was taken charge of by the Collector under s. 12,
Act XL of 1858, the interference of the Civil Court
was held to be precluded alike by the former Act
(s. 7) and by the latter. Mohessxjr Roy r. Collec-
tor OF Rajshahye . . 16 W. R. 263

8. Outcast for criminal offence

— Wife. P, whose minor wife had refused to |
return to cohabitation with him. on the ground
that he was out of caste in consequence of having' '
committed a criminal offence, applied to the Dis- I
trict Court under Act IX of 1861 for the custody- !
of her person. Held, that that Act did not apply-
to such a case. Pakhax-dui'. Maxki

I. L, R. 3 All. 509

9. 'Wife--Dis2)ute on fact of marri-
age. Where a person claims the custody of a
female minor on the ground that she is his wife,
and such minor denies that she is so. Act IX of
1861 does not apply. Such person should establish
his claim by a suit in the Civil Court. Balmakunp
V. Janki ' . . . I. li. R. 3 All. 403

10. - - Injunction — Jurisdiction of

District Judge — Marriage. The paternal uncle of
a female Hindu minor, whose father was dead,
ajjplied to the District Judge, under Act IX of
1861 for the custody of the minor and for an i
injunction to prevent the mother of the minor from I
carrying out a projected marriage. On the 8th of
March 1881 the Judge issued an" aci interim injunc-
tion. When the application came on for hearing, it
appeared that the marriage had taken place before
the order of injunction had reached the parties. Th& j
District Judge found that, though the mother wa» j
entitled to the custody of the mmor, yet the peti-
tioner was entitled to give the minor in marriage in
preference to the mother. The District Judge also
found that the marriage had not in fact been validly
performed. On appeal to the High Court, it was
contended that the District Judge had no jurisdic-
tion to determine the right of any party to give
an infant in marriage on an application under Act
IX of 1861, or to grant an injunction ; and it was
also contended that the Magistrate was wrong in
entering into the question of the factum of the
marriage. Held, that, under the provisions of Act
IX of I'iGl, the District Judge had jurisdiction.
Balmalrundw. Janlci, I. L. R. 3 All. 403; Wolver.

( 8269 )

DIGEST Ui<" CASES.

( 8270 )

TJLlNO'R—contd.

4. CUSTODY OF MINORS (ACT IX OF 1861,
ETC)— corichl.

s. 7 — concld.

hampion Waterworks Co. v. liaickesford, 2S L. J.
{N. S.) C. P. 242 ; and Collector of Fubnn v. Roma-
nnih Taijore, B. L. R. Sup. Vol. 630, referred to.
Held, also, that, for the purpose of deciding whether
the injunction should issue, the Judge was justified
in entering into the question of the factum of the
marriage, though his finding on that point would
have no effect in determining its validity. In tie
matter of the petition of Kasht Chunder Sen.
Rrohmomoyee v. Kashx Cnu>;DEU Sen

I. L. R. 8 Calc. 266 : 10 C. L. R. 91

11.

Cause of action — 'Jic^l to recov-

'cr custody of — Suit hi/ a father for the rur^ver;/ of his
'.:hildren ille(jalli/ detained — Tort — Death of defend-
ant pending suit — Survival of cause of action aejaiiist
■Iffendanfs heirs— Practice— Procedure. A Civil Court
%&% jurisdiction to entertain a suit by a father to
jrecover possession of his minor children illegally
detained by a stranger. Such a suit is not barred
:by the provisions of the (hiardians and Wards Act
(VIII of 1S!;U). A Mahomedan sought to recover
possession of his minor daughters, who were alleged
to have ben illegally detained by the defendant
;Mukimbhai. Pending the suit Mukimbhai died,
and the suit was continued against his widow
jSharifa as his heir and legal representative, on the
ground that the minors were in her possession.
\Held, that the cause of action did not survive as
igainst the widow of the deceased defendant, and
that therefore the suit could not proceed. The
cause of action which gave rise to the suit was
lextinguished when the defendant Mukimbhai died.
IShakifa r. McNEivHAN (r.'OD

I. L. R. 25 Bom. 574

15. REPRESENTATION OF MINOR IN SUITS.

. 1. Disability to sue — Objection

ion ijround of disability. An infant cannot sue ex-
|cept by next friend, and \\ bete an objection is made
ion the ground of the disability of the plaintitf , it was
held that the suit might be dismissed. Chixniah
jr. BaubxinSaib . . . 5 Mad. 435

2. Defence of minority — Civil

Procedure Cole, s. -A3 — Guardian ad litem, ap).oint-
ment of — Procedure. When minority is pleaded as
defence to an action, a guardian should he appoint-
ed for the defendant, and a preliminary issue should
be framed and tried as to whether defendant is
oris not a minor. Kasi Doss v. Kassim Sait

I. L. R. 16 Mad. 344

8. Disablity to carry on suit—

\Suit by minor—Aext friend. Plaintiff being a
j minor, his suit was not dismissed, but he was direc-
ted to appoint a next fi iend to sue for him. RoLi o
V. Smith . . . 1 B. L. R. O. C. 10

I .4. : Suit by minor whose guar-

dian has omitted to sue. A a.inor, when he

comes of age, is not precluded from suing in hi.s own

I name for anything that his guardian, either through

j ignorance or negligence, has omitted to prosecute.

MINOR— 'onR

5. REPRESENTATION OF^MINOR IN SUITS—
contd.

Kylash Chundek Sircar v. Gooroo CnrRN Sir-
car. GooRoo Churx Sircar v. Kylash Cnunder
Sircar 3 W. R. 43

5. — Suit on behalf of minor—

Act XL of 1858, s. 3— Suit of >mall value. A suit
can be prosecuted or defended by a relative on be-
half of a minor Mithout a certificate under Act XL
of 1858 when the subject-matter of the suit is ( f
small value. A suit to recover real and personal
property of the value of R7,2(;0 was allowed to be
prosecuted by the brother of a minor on behalf of
himself and his minor brother, under Act N L of 1 8.".8,
s. ;i. Nabadwip Chander Sirkar v. Kalixath
^^^ . . . . 3 B. L. R. Ap. 130

6- — Objection to

minor's representative. Where a suit was brought
by a manager, appointed by the Court of Wards on
behalf of an infant who had a right to sue, an
objection to the manager's authority was
disallowed aajmerely technical. Hardi Narain
SAHUf. RuderPlrkash Misser

I. L. R. 10 Cac. 627
L. R. 11 I. A. 26

7. A'ezt friend of

minor— -Uncle representing minor nepheu — Maho-
medan lav; — Guardian. The rule of Mahomedan
law that an uncle cannot be the guardian of the pro-
perty of a minor, does not prevent an uncle repre-
senting his infant nephew, under the Code cf Civil
Procedure, as next friend in a suit. Abdul Bari r.
Rash Behaei Pal . . 6 C. L. R. 413

8. ^ Suit to set aside

alienation affecting minor's interest — Mad. Erg.
V of iSO-f, s. S — Manager appointed under Regula-
tion— Collector — Ne.xt friend of minor. The
holder of an impartible zamindari governed by the
law of primogeniture, having a son, executed a
mining lease of pait of the zamindari for a period
of twenty years by which no benefit was to accrue
to the grantor unless mining opreations were carried
oil with success, and the commencement of mining
operations was left optional with the lessee. On
the death of the grantor, his minor son and successor
brought a suit by the manager appointed under
Madras Regulation V of 1804, s. 8. and the manager
being subsequently dismissed, the Court of Wards
authorized the Collector of the district to conduct
the suit as next friend of the minor. The suit was
one against the ai^signee of the lease to have the lease
set aside. Held, by Parker, J., that the plaint-
tiff could sue by the Collector as his next friend,
since the Court'of Wards had authorized him to do
so, there is nothing in t)ie Regulation to restrict the
duty of conducting a suit as nt xt friend of a
minor to the manager appointed untler s. 8.
Beeksfokd c. RA.MAsruBA I. L. R. 13 Mad. 197

9. Married woman — Xext friend

—Civil Procedure Code {Act XI V of 1SS2\ e. 445.
A married woman may act as the next friend of
an infant plaintiff. Guru Pershad Sing v. Gossain

( 8271 )

DIGEST OF CASES

( 8272 )

MlNO'R—contd.

5. REPRESENTATION OP MINOR IN SUITS—
contd.

Mnnrai Puri, I. L. K, 11 Calc. 755, overra'ed.
ASIRUXBIBI V Sharip Moxdul

I. L. R. 17 Calc. 488

10.

Mamlatdar's Court — Suit hy

minor in Mamlatdar's Court for possession— Mam-
latdars" Courts Act {Bom. Act III ol 18 7 o)— Right to
sue by next friend. A minor may «ae'for possession
in the Mamlatdar's Court by his next friend, al-
though the Mamlatdars' Courts Act (Bombay Act
III of 1876) makes no provision for such a suit.
DattatrayaKeshab v. VamanGovind

I. L. R. 21 Bom. 88

11.

A minor may si

or be sued in a Mamlatdar's Court in a suit for pos-
session, if he is represented by a properly constituted
guardian. Saifullav. Hajimaya

I, L. R. 24 Bom. 238

12. Improper representation

of minor — Elject on proceedings. Where on
appeal the Court was of opinion that certain
minors were not properly represented in a suit
bi'ought by them, it declared all the proceedings in
the suit to be null and voidfas far as the minors
were concerned. With regard to the party acting as
their next friend, the Court allowed her to withdraw
the suit with, liberty to bring a fresh suit, and
returned the plaint. Gfktj Pershad Singh v.
GossAiN Mtjnraj Puri . I. L. R. 11 Gale. 733

13. Representation by Col-
lector— Representation of minor f heirs i as de-
fendants by including Collector as defendant,
as their guardian ad litem — Civil Procedure
Code, 1882, ss. 13, 211, and 312— Power of a
Hindu son to question the al if nation of fan impar-
tible estate by his father. Representation by a
Collector of all minor sons of a deceased zamindar
as their guardian ".d litem under the order of the
Court, the Collector being added as a defendant
in the suit, is an adequate representation of all the
sons, even if the Collector could only treat, under
Regulation V of 1804, the particular minor on
whose behalf the Court of Wards was then managing
the zamindari as their proper ward. Consequently
a suit brought by one of such minors, on his attain-
ing majority, to set aside the sale of a portion of the
zamindari property attached in execution of the
decree given in the former suit is barred by ss. 136,
244, and 312 of the Civil Procedure Code. Subra-

MANYA PaNDYA ChOKKA TaLAVAR V. SiVA SUBRA-

manya Pillai . . I. L. R, 17 Mad. 316

14.

Objection to representa-

tion— Application for execution not being pro-
perly made — Objection not taken at proper time
disa lowed where minor afterwards 2^^operly re-
presented. An application for execution of a
decree was made, the applicant being a minor
and being represented by a sub-manager under
the Court of Wards. It was decided against
the minor and he then appealed. The Court of
Wards subsequently released the decree-holder's

MIN OB,— contd.

5. REPRESENTATION OF MINOR IN SUITS-

contd.

estate, and, pending the appeal, a next friend wej
put on the record to represent the minor. 0
an objection being raised that the applicatioi
having been made by a sub-manager, was untenable
— Held,thsLt, the objection not having been raised i
the Court below, and the minor having been pre
perly represented in appeal by a next friend, th
objection could not be entertained. Bhoopendr
Narain Dutt v. Bar'.oda Prasad Roy Chowdhri
I. L. R. 18 Calc. 500, distinguished. Nore^tdr
Nath Pahari v. Bhupendro Narain Rai

I. L, R. 23 Calc. 37

15.

Representaiio

of minor by party not authorized to consent to decree-
Invalid decree against minor on an a'iegei consenl-
Proof of authority to bind minor by consent — Bem
Reg. X of 1793 — Manager of Court of Wards, power o,
A decree -holder, who rests his case upon his decree
having been made against a minor by consent, i'
under the necessity of proving that the consent wa
given by some one having authority to bind th
minor thereby. In 1872, in the Settlement Court
a decree for land was made adversely to a minor, o
whose persons, or for the suit, no guardian had bee;
appointed. The minor's estate was under .th
charge of the Court of Wards, consisting, in the firs
instance, of the Deputy Commissioner of the district
who had appointed a manager of the estate. Th
mukhtear of the Court of Wards informed th
Settlement Court that the manager consented to ■■
decree, which was thereupon made in favour of th
claimant. Held, that there was no occasion t-
decide whether the minor was substantially il
party to the suit in the Settlement Court, oi
whether his interest had not been prejudiced by hi
not having been impleaded through a guardian, o
whether there had been fraud in the giving or alleg
ing consent. But that the affirmative of the questioi,
whether the consent had been competently given oi:
the minor's behalf was upon the defendant in thi,
present suit, who had obtained the decree upon it!
Their Lordships were of opinion that it had not beei
shown that the manager was authorized by thi
Court of Wards to give to the mukhtear authority
to make the admission. It was not enough that thi
mukhtear was the mukhtear of the Court of Wards
and said that he had authority to admit thi
claimant's right. The decree of the Settlemen
Court was set aside on this last ground. Th<
decision of the original Court in this suit, that th(j
claimant in the settlement suit had not prove(|
the title claimed by him was also affirmed
Muhammad Mumtaz Ali Khan v. Sheoruttangh
I. L. R. 23 Calc. 934
L. R. 23 I. A. 7a

16. Wrongful admission o3

title against a minor — Suppression of factl
by a manager appointed by the Court of Wardl
— Order of Settlement Court cance lid. At a setj
tlement of a district in Oudh a sub-settlementj
was decreed in conformity with Act XXVI of 1866;

( 8273 )

DIGEST OF CASES.

{ ^27-1 )

ll'NO'R—contd.

REPRESENTATION OF MINOR IN SUITS—

conld.

hich legalizes rules as to claims in respect of

ibordinate rights to land. The claimant alleged

mself to be, in virtue of a birt tenure held by him,

ider-proprietor of a village within the talukh of a

iukhdar then a minor, whose estate was under

arcre of the Court of Wards, whose representative,

e Deputy Commissioner of the district, had

•pointed a" manager of the estate. This manager

'ving reported favourably on the claim, the

'?puty Commissioner sanctioned its admission '■

iiereupon a decree for sub-settlement was made

the .30th June 1871. The present suit was

.ought by the talukhdar, after attaining full age,

have that decree set aside as having been obtained

, fraud and collusion. That the manager was

other of the alleged birt-holder, and that he was

lily share-holder with him in the village, facts

I the manager had suppressed, were facts

1 in this suit. The defendants attempted,

liled, to establish by evidence the existence

alleged birt. Hdd, that the admission in

itlement Court in 1871 was not binding on

plaintiff, and that, even assuming that the

siendants' ancestor had been in some way in

•nipancy before 1857, the evidence was quite

:jutlicient to show that a grant of a perpetual

'|iier-proprietary right had been obtained. The

'■^ree of the lower Appellate Court, cancelling the

" ment Court's order, was therefore upheld.

U'TAR V. MaHAMMAD MuilTAZ AlI

I. L. R. 24 Calc. 853

L. R. 24 I. A. 107

1 C. W. N". 417

7. Guardian ad litem — Guar-

and Wards Act (VIII of 1S90), s. 53—

Procedure Code, s. -143, as amended by s. 53

■' VIII of 1S90. S. 53 of Act VIU of

amending the Code of Civil Procedure, ex-

-:y requires the appointment of a guardian ad

."I, whether or not a guardian is appointed

iller Act VIII of 1890. In a suit against a minor,

^ summons was attempted to be served on his

lian appointed under Act VIII of 1890, but

'irdian ad litem was appointed in the suit.

-ait was decreed ex parte, no one having

led for the minor. Held, that the decree

lie set aside, and the case sent back in order

lie minor might be represented in accordance

law and the case retried. Dakeshur Per-

Naraix Singh v. Rewat ^Iehtox

I. L. R. 24 Cale. 25

jS. -^ Ex parte decree against

1 nor— Jimor's right to sue to set aside ex
decree — Proof of negligence on the part of
irdian. It is only where fraud or negligence
\ed on the part of the guardian of a minor
le right to bring a suit to set aside the previous
'11 can be claimed by a minor or his adminis-
The plaintiff, a minor represented bj' an
istrator, sued to recover possession of two
-■ With respect to one of the houses, there

MINOR-C0JI//7.

5. REPRESENTATION OF .MINOR IN .SL•n■S—
fo;//(■/.

had been previous litigation. The plaintiff was
the defendant, a minor represented by his guardian,
and one of the present delendants was the plaintiff
in that I'tigat'on, and an rx parte decree wa-; passed
against the plaintiff. Held, that the decision in the
previous litigation barred the present claim \vith
respect to the house which was the subject of that
litigation, no negligence being proved on the part
of the plaintiff's guardian therein. Hanmantapa v.
JivuBAi . . . I. L. R. 24 Bom. 547

See Lalla Sheo Churn Lai. v. Ramanandan
DoBEY . . . I. L. R. 22 Calc. 8

and Cuesaxdas Natha v. Ladhavahu

I. L. R. 19 Bom. 571

19.

Effect

of decree in suit
brought by e.der brothers — Manager. The
plaintiff's, Hindu brothers, brought a suit for redemp-
tion. During tiie minority of the plaintiffs their
elder brothers had brought a previous suit to redeem
the same property, which suit had been dismissed.
There was no evidence to show that in that suit they
had assumed to act on behalf of the famil\% or that
any one of them had been a de facto manager of the
family property. HeJd, that the plaintiffs were not
sufficiently represented in the previous suit, and
that therefore their present suit was maintainable,
Durgapcrsad v. Kesho Persad, I. L. H. S Ca c. ' 56 ,-
L. h. 9 I. A. 27, explained. Padmakar Vinayak
JosHi V. Mahadev Krishna Joshi

I. L, R. 10 Bom. 21

20. Suit against minor — Parties

— Guardian — Act XL of 1S5S, s. 3 — Dec aralory
decree. In a suit to set aside '"the allegation of the
defendant that her son .S had been adopted by the
father of the plaintiff, and had therefore inherited
his property,"' the defendant was described in the
plaint as Si, the mother of S ; and subsequently
the words '' a minor '" were inserted after the name
of S. In the proceedings in the suit the defendant
designated herself as mother and guanlian of .S', a
minor, but there was nothing to show she had
obtained a certificate of guardianship, or had been
appointed guardian ad litem. The two lower (.'ourts
gave a decree for the plaintiff. On siK-eial appeal
to the High Court it was contended that ."i ought to
be a party to the suit. Hed that the suit, as it
stood, could not be treated as a suit against the
minor : the minor ought himself to have been made
and been described as defendant, some other person
being named as guardian. If treated as a suit
against M only, it was wrongly brought, no suit to
make any declaration as to the ailoption could be
brought against any other than t>' himself. Muvgo-
LA DossEE V. Saroda Dossee 12 B. L.. R. Ap. 2

s.c. MoNGOLA Dossee r. Saroda Dossee

20 W. R. 48

21, Sufficiency of representa-
tion— Improper representation of minor — Suit for
" s'lf and as guardian.'' iScmble . That the fact of
a suit being brought by A for self and &s guardian

( 8275 )

DIGEST OF CASES.

Ml-NOF.—contd.

5. REPRESENTATION OF MINOR IN SUITS—

C07}td.

of C, a minor, is not conclusive evidence that C is
not so far a party to the suit as to be bound by the
decree. Sreenarain Mitter v. Ktshen Soondery
Dassee, 11 B. L. B. 171, and Mongola Dossee v.
Saroda Dossee, 12 B. L. R. A p. 2, cited. Grish
Chtjndee Mookerjee v. Miller . 3 C. L. R. 17

22. Civil Procedure

Code, 1877, ss. 440, 44- — Liability of pleader to pay
costs. The plaintiff, who sued for confirmation of
possession of certain land on behalf or her minor sons
thus described herself in the heading of the plaint :
" S B, widow of the late C B, mother and guardian
on behalf of the minors, »S' and A', plaintiff." The
suit being dismissed, an appeal was preferred under
the same heading. On second appeal the appeal
was headed "S B, widow of the late C B, mother and
guardian of S and A', minors, appellant." The
plaint alleged that the plaintiff had held possession
as guardian of the minor sons. Held, that the
proceedings were bad in law, the plaint not
having been framed in accordance with the provi-
sions of s. 440 of the Civil Procedure Code. The High
Court further directed that the pleader who filed
the or ginal suit and the pleaders who filed the
appeal in the lower Appellate Court should be I
called upon to show cause, before the presiding j
oflScers of the original and the lower Appellate Court?, |
respectively, why they should not be ordered, under
s. 444 of the Civil Procedure Code, to pay the costs i

of the suit and the appeal.

MONORAJI M^UNDTJL

Shoxai Bew.
11 C. L. R. 15

Civil Procedure

Code {Act XIV of 1S82), s. 440— Suit by next
friend on behalf of minor — Act XL of 1S5S, s. 3 —
Certificate. The effect of s. 3 of Act XL of 1858,
read with s. 440 of the Code of Civil Procedure, is
that a minor plaintiff must not only always sue by
his next friend, but, when the suit relates to the
minor's estate, the person representing the minor
must either hold a certificate under the Act, or
must obtain the sanction of the Court for the suit
to proceed. The mere admission of a plaint by the
Court does not sufficiently indicate that sanction is
accorded. Durga Churn Shaha v. Nilmoney
Dass . I. L. R. 10 Calc. 134 : 13 C. L. R. 369

See [contra) Afkhil Chunder v. Tripoora Soox-
dubee . . . . 22 W. R. 525

24.

Next, friend —

Certificate under Act XL of 1S58, s. 3 — Civil Pro
cedure Code {Act XIV of 1882), s. 440. S. 440
of the Civil Procedure Code, read with s. 3 of Act
XL of 1858, does not make the receipt from the
Court of a written permission to sue compulsbrv
upon the next friend of an infant plaintiff. Ne\vaj [
V. Maksud Ali . . I. Ij, R. 12 Calc. 131
25. InsufficierU ap-
pearance on behalf of infant— Succession Act,
s. 261— Civil Procedure Code {Act X of 1877).
Ch. XXXI, ss. 44').4:4—Act XL of 1858, s. 3. No
judgment or order passed in a suit, to which a minoj '

■M.I-N OR— co?iid. I

5. REPRESENTATION OF MINOR IN SL^TS

contd.

subject to the provisions of Act XL of 1858 i-
party, will bind him on his attaining majori;
unless he is represented in the suit by some per.-
who has either taken out a certificate or has obtaii .
the permission of the Court to sue or defend on
behalf without a certificate. Permission granted .
sue or defend on behalf of minor, under s. 3
Act XL of 1858, should be formally placed on t;
record. Ch. XXXI of the Civil Procedure Cc;
lays down the form in which a minor should app<-
as a party, and this form should be strictly follow .
Mbinamoyi Dabl\ '-.Jogodishuri Labia

I. L. R. 5 Calc. 450 : 5 C. L. R. 3.

26. Suit on be \

of minor — Permission to sue. The uncle of a mi :
instituted a suit on his behalf -n-ithout obtaining i
formal permission of the Court in which such &t
was instituted to sue on his behalf. The uncjs
right to sue was denied by the defendant, and 2
first of the issues framed was whether he had sii
right. The Court decided that he had such rig .
Held, in second appeal, that, although permissioio
sue or defend a suit on behalf of a minor shoulde
formally granted to be of effect, such decision mi t
fairly be accepted as in this case a sufiScieot ii
effective permission to the uncle to sue, and he s
competent to maintain such suit. Mrinamoyi Dca
V. Jogodishuri Dabia, I. L. R. 5 Calc. 460, referred^.
Pirthi Singh v. Sobhan Singh I. L. R. 4 Aijl

27. Permission }f

Court to guardian to sue — Discretion of Covi\-
Act XL of 1858— Civil Procedure Code {Act iy
of 1882), s. 44'j — Return of paint. A volunT
guardian has no right to sue on behalf of a ml'.
the accord or refusal of permission to su<
matter in the discretion of the Court. Wh-
suit is brought in violation of s. 440 of the Cod U
Civil Procedure, or of the provisions of Act X\>i
1858, the proper course for a Court to pursue i?o-
return the plaint in order that the error may be p-
tified. RussicK Das Bairagv v. PfiEOSfH
Misree . I. L. R. 10 Calc. 102 : 12 C. L. R. ' 5

28. Act XL of 1

s. 3 — Order granting certificate to act as guar
of minor — Obtaining a certificate — Majoritj
{IX of 18 5). When a Court, to which appH'
has been made under s. 3 of Act XL of 1S5S i
certificate, has adjudged the applicant entitle
have one, he then substantially obtains it ; alth'
it may not be drawn up or issued at the time. J
ing obtained such an order, he has in substance
plied with the terms of the Act ; in the same wa
when a plaintiff has judgment that he shall ha
decree in his suit, it may be said that he has k^
obtained his decree. Therefore, where a minoil'*''
/been represented in a suit by a jjerson who
obtained an order for a certificate under s. 3, bu
not had it issued to him, the absence of a certi.
was held to be not such an irregularity as ent"
the minor, on coming of age, to have the proceet^*
set aside on the ground that he had not been ';''■

( S277 )

DIGEST OF CASES.

( S278 )

M '^O'R—contd.

^ EPRESENTATION OF MINOR IN SUITS—
cont'l.

peJ- represented. Muxgxikam Marwari v. Gur-

SA.i Nand. Liakut HossEiNr. Gursaiiai Naxd

I. L. R. 17 Calc. 347

Ii. R. 16 I. A. 195

I. - Improper repre-

t) lion of minor — Appearance by a guardian not
..n: ioned—Ad XL of 1S5S, s. 3— Act VIII of
V ^ Suit against minor — Presumption when no
II recorded by Court — Misdescription of
.d XIV of 1882, s. J43. A suit was
• ,, ,..; against a mother " for self and as guardian
oi and tf, minor sons of C, deceased," at a period
»'h Act VIII of 1859 was in force. The mother
bai t taken out a certificate under Act XL of J 858
am 0 permission was recorded by the Court allow-
ing le mother to defend on behalf of the infants
iim '■ the provisions of s. 3 of that Act. A decree
Ha. iiadein the suit, and in execution thereof
ler^ n property belonging to .4 and B was sold and
pui ased by A', the decree-holder. Subsequently
an |s coming of age, .4 and B, by A as his next
" i' , instituted a suit against X and their mother
r the property so purchased by X. Held,
I the provisions of Act VIII of 1859 it was
.s.sary to formally record sanction to the
luuT to defend under s. 3 of Act XL of 1858 ;
iwi.hat the fact of sanction having been given
'' '"• presumed by the Court, and that on the
: he case such presumption was warranted.
1. that, though A andB were not properly
'• in the previous suit, it was a mere defect
uul did not affect the merits of the case,
ii eordance with the prevailing practice at
A lien the suit was brought ; and that there
I'lrity for saying that, when minors have
iy sued, though in a wrong form, a decree
-.1,'. them would not be valid. JoGi Singh i'.
Kr|BEHARi SiXGH . I. L. R. 11 Calc. 509

^ , Civil Procedure

^-, s. 4 0 — Siiit brought on behalf of a

I a person other than the minors certifi-

ndlin — Minor not properly represented.

iiit was filed on behalf of two minors by a

1 ■' IS not the certificated guardian of the

'.'■re being a guardian duly appointed by a

' Coiirt in existence at the time : Held,

suit was wronglj- l)rought, having

-. 440 of the Code of Civil Procedure, and

plaint should have been returned for

lit, and that the defect in form of the suit

ured by the fact, if it was one, that the

iK-aring therein as guardian of the minors

irta of a joint Hindu family of which all

'itfs were members. Beni Bam Bhuit v.

Dhulri, I. L. R. 13 Calc. ]89. referred to.

i-^HNAf. Ram Das I. L. R. -2.0 All. 162

MINOR— co)i^/.

5. REPRESENTATION OF MINOR IN SUITS—

contd.

an order recorded in the order-sheet, there is, never-
thel(>.ss, nothing in the nature of the sanction pro-
vided by s. 3 of Act XL of 185S which takes it out of
the general rule of evidence that sanction may be
proved by express words or by implication. Where
on a construction of the plaint and the pleadings it is
found that the minor is the real plaintift, the mere
fact of his not having been properly described in
accordance w ith s. 44frof the Civil Procedure Code is
no ground for setting aside a decree passed in the
.'•uit. Bhaba Fersiiad Khax v. Secretary < f
State for India I. L. R. 14 Calc. 169

32.

Error

— — - Objection to
" of minor — Ptrmission to sue. Proof
Procedure Code, ss. 440, 578— Act XL of
■ Although the proper and regular manner
permission to sue on behalf oi^a. minor is bj

frame of a snit against a minor defendant, effect
of — Guardian " ad litem " how appointed — Sanction
of Court tvithout formal order, effect of — Service
of summons — Civil Procedure Code {Act XIV of
1882), ss. 100 and 443. The plaint in a suit des-
cribed one of the defendants thus : " NC, guardian
on behalf of her own minor son, S C."' Upon the
presentation of the plaint the Court directed the
plaintiff to produce an affidavit to the effect that
the mother of the minor defendant was his guardan,
and an affidavit having been made that the '" minor
defendant " was under the guardianship of the
mother, ordered a suit to be registered and summons
to be issued on the defendants. A' C then filed a
written statement, alleging that she held the land in
suit on behalf of the minor. Held, that, having
regard to the order of the Court and the allegations
made in the plaint and written statement, the suit
was substantially brought against the minor, and
the error of description in the plaint, being one of
mere form, could not. without proof of prejudice,
invalidate a decree again.st him in the suit. Held,
also, that the want of a formal order appointing a
guardian ad litem was not fatal to the suit, when it
appeared on the face of the pioceedings that the
Court had sanctioned the appointment. Held
(O'Kixealy, J., dissenting), that the fact that an
order appointuig a guardian ad liletit at the instance
of the plaintiff was made e.r jMrtc was not necessarily
fatal to the suit, unle.=:s it could be shown that the
minor had in any manner been prejudiced thereby.
Per MiTTER, J. (Petheram, C.J., concurrinc),
that, although the matter of the api>ointment of a
guardian ad litem is left to the discretion of the
Court, it is always desirable that the appointment
at the instance of the plaintiff should not be made,
unless the minor, or his friends and relative." in
whose care he may be, failed to move the Court for
that purpose within a reasonable time after receiv-
ing notice of the institution of the snit. SlRESH
Chun-der Wum Chowdhky f. JroiT Chcxder
Deb ... I. L. R. 14 Calc. 204

33. Minor, suit

against — Misdescription in title of the plaint and
in decree, effect of. In a suit brought against a
minor widow as the heir of her deceased husband,
she was descri})ed in th*^ cause title of the plaint as-
" the deceased debtor B A's heir and minor w idow

( 8279 )

DIGEST OF CASES.

( S280 )

SS.lNOB.—contd.

5. REPRESENTATION OF MINOR IN SCITS—
rontd.

B If a mother and guardian A Z>/' The plaintiff
obtained no order for the appointment of a guardian
n\ litem. He, however, obtained a decree, and the
minor defendant was described therein in the same
manner. Bdd, that the minor was neither a party
to the original suit nor to the df<ree, and that no
property of the minor passed upon a sale in execu-
tion of such decree. Sur^jsh Chundtr Wum CJtov:-
dhry T. .Jwrjvit Chund^er Defj, I. L. R. 14 Calc. 204,
distinguLshed. Gaxga Peosab Choavdhey v.
X'iiEicA Chttex Cooxdoo. I. li. B. 14 Calc. 754

34. Decree against

:iv,ardian of a minor — Immaterial irrequlurity —
Error in description of defervdant. In a suit by an
adopted son, after the death of his adoptive father,
tn recover ancestral land sold in execution of a decree
asainst his adoptive mother therein described as
the guardian of the present plaintiff, who was then
an infant, it appeared that the decree had been
passed on a bond executed by the then defendant in
respect of a debt due by her husband. Held, that
the plaintiff should be regarded as a party to the
suit in which the decree executed against the land
hrid been passed, and that the present suit should
be dismissed. Natesayyax v. XAEASiMiiAYYjrR.
I. Ii. E. 13 Mad. 480

35.

Suit in suh^uruie

<ijai'nxt minor — Sale-certificate, Irregvlar descrip-
tion in — Decree against widow representing her
riirwr eon — Decree, sile of infant' >s share uruder.
A sale-certificate expressed a rent-decree to hare
f>een made against R, the widow and heir€«s of K,
anl the mother of a minor son, name unknown.
Held, that this df-scription, though irregular, showed
that in substance the suit was against the infant, and
that the infant's share was .sold under the derree.
Hari Saran Maitra v. Ehvhanefnj:ari Defn, I. L. R. 16
<:nlc. 40 : L. R. 13 I. A. 19'j, and Saresh Chunder
Hum CTiowdhry v. Jugvi Chunder DeJj, I. L. R.
14 Calc. 204, followei Kedae Peosusxo Lahiei

'-. PeOTAP C:Br>-DEE TALrKHDAE

L I.. E. 20 Calc. 11

36. yeod friend —

Suit fled hy a minor i/rithout a next frieni — Appli-
cition by defendant to strike plaini off the fie — Civil
Procedure cU I Act XIV of lfiS2), s. 442. The plaint-
iff was a widow, and sued for the administration of
her deceased husband's estate. The suit was filed
<n the .5th April 188.x On the 2hd >Iay the
flefendant's attorneys gave notice to the plaintiff's
: ttomey that the plaintiff was a minor suing with-
rnt a next friend, and that the jjlaint must be struck
•ff the file in consequence. The plaintiff's attorney
replied that, if the plaintiff was really a minor, he
' -''luld at once take steps to have her father appoint-
'-'] her next friend, and the plaint and procee-dings
amended. On the 7th 3Iay, inspection was given
to the plaintiff's attorney of the plaintiff's horoscope,
and after that inspection the plaintiff's attorney
DToposed that the proceedings should be amended
by making the r^Iaintiff's father her next friend.

'SJLINO'B.—contd.

Tj. REPRESENTATION OF MINOR IN SU1>
conid.

It appeared that the plaintiff was
under age. Nothing was done by <
some weeks. On the 6th June t
attorney gave notice that they would i^p;,,
order that the plaint should be taken of'
under s. 442 of the Civil Procedure Code ' .
of 1882). On hearing the application, t:
refused to make the order asked for. Tlj'
not appear to be a vexatious one, and the r
age did not appear to have been fraudul<-r
cealed, her father having stated on oat}.'
believed her to be of*age and expre-->i. '
ness at once to be placed on the re
frienrl The Courts, as a rule, o:
plaint off the file where it app»ears, on
plaint, that it was filed by a pers^m v.
or when it is proved that it was filed
ledge that the plaintiff was a minor and
intention of deceiving the Court and eva'
payment of costs in case the plaintiff faii
claim. When the fact of minority is a h-
question of evidence, and the defendant-i' ^
is found correct, then the usual cour-
all proceedings and to allow sufficien*
the minor U) have himself properly
the suit by a next friend. Rottok B m *■. <'y- :;
DAS Lalloobhoy . . I. Ii. H. 13 B<i. '

37.

^lesve

Decree made against a widow re-prestntin
enforced cujaivM a minor adopted son,
the widowj fis his guardian — Devolviion oi
along with e>tate uj.on the minor wit
having heen made ff/rmally a ptirty to tfte
His similar liahility in a suit for mesn*
A minor, who had been adopted by a wido^
to her deceased husband, was not ms']'- f. •
an appeal which she preferred aff-r
from a decree made against her when
ed the estate. Held, that, as liability
cree, made when the widow fully r
estate, devolved upon the minor on
the widow's estate being also thereur
would be right for her to continue to '■ ' :
as guardian of the minor. Alwj that .
for the minor's benefit that the wid^
should appeal from a decree, whici
diminished his estate, the minor wa- • '
adverse decree of the Appellate Court, ahh
had not been made formally a party there-
principle of the decision in Dhurm Dass P'
Sfuimaioonyhry Dehia, Z Moo. J. A. 229,
to, and applied in this case. H'ld,a\v>,''
minor, by his arloptive mother as hi- . '"
liable in a suit for mesne profits, br-^ -
decree upon title ; it being made clear
for mesne profits was substantially b'
the minor. Suresh ChuvAer Wum '
Jijugut Chunder Deh, I. L.R. 14 Calc. -.'"J.
Haei Saeax Moitba r. Bhtbave-v.- \r.: Dz-
I. L. E. 16C
L. E. 15 L -

( S2SI )

DIGEST OF CAfSEfc

( 8282 )

INOR— ro«/f/.

IIEPRESENTATIOX OF MINOR IX SUl IS—
contd.

jg Costs — Min r

i repre.ie7ited bi/ a next friend or qnnriJiun — Costs

t\\iiut fuch minoi's estate — Applieation for leurr

thiie as pauper — Civil Procedure Code {Act XIV

>'<SS2), ss. 441, 41?. 444. Neither s. 441 nor 442

fithe Cmie of Civil Froce'liire (Act XIV of 18S2)

inv authority- to a Court to make a minor's

liable for costs. .4 applied for leave to file a

" jorvid pauperis aa'ainst B. B le-^isted tlie

; 'luation on the ground that A was a minor. Tlie

(n emnient pleader also resisted on the grounu that

.'\as not a pauper. The Court, without inquiring

Is pauperism, rejected the application solely

L'round that A was a minor and that he

r properly represented by a next friend or

m. The Court ordered all costs to be paid

the minor's estate. The minor died soon

irds. The Collector then applied to the

• 1 attach certain property in jB's hands which

.!''jed to form a part of the minor's estate.

1 ■jetted, but the attachment was allowed. Held,

tit the order for costs, as well as the attachment

trt followed thereon, were illegal and ultra vires.

It- order was clearly opposed to the provisions of

s(l44 of the Code of Civil Procedure (Act XIV of

1|2) under which no order affecting a minor can

lijilly be made without such minor being re-

ji'ncnted by a next friend or guardian ad litem.

.' t HAND Talakchaxd r. Collector or Shoia-

. I. L. K. 13 Bom. 234

Su't onheludf cf

■ fact, a minor —

iiit is instituted

.» ii'ieged to be, but not
're to be adapted ivhen
'• next friend on behalf of an alleged minor

- r.ot so in fact — Plaint, amendment of.
a suit is instituted by a person alleging him-

bc a minor, and the suit is brought through a
1 lend, and when it is found that the plaintiff

■ at the date of i\\f institution of the suit in
-■iiinor, the Court should not dismiss the suit,

defendant can be fully indemnified by the

;it of his costs. In such a case the proper
y is for the defendant to apply to have the

taken off tlie file or amended, and if it be not
1 d, the next friend's name may be treated as
iirplusage, and the suit be allowed to proceed.

Jan i-.Obaidllla alias Naxiie Nawab

I. L. R, 21 Calc. 866

LaI.L SaHOO r. K.tREEM i>t X

I. L. R. 23 Calc.'.ese

Suit brought

■ff of a person- alleged to be, but not in fact, a
-Procedure on discovery that the plaintiff
■ full age at the commencement of the suit.
wa« instituted on behalf of a person alleged
rrinor through her ne.\t friend. The plaintiff
•d a decree. The defendant appealed,
this appeal the allegeil minor applied to be
iin the record in h^r own right as respondent,

- that she had attained her majority since the
rion of the suit. The affidavits, however, bv

MlNO-R—rout.l.

5. REPRESEN TATION OF MINOR IN SUITS—

coiitd.
which tliis application was supported, showed that
she ha<l been of full age at the time when the plaint
was filed. Held, that the suit must be dismi.ssed.
Taqui Jan v. ObaiduUa, I. I.. R. 21 Calr. SW,
dissented frim. Suejkaxia c. Bharvt SiNcai

I. L. R. 20 AIL 90

41. Reprfsentation

by guardian of person, though not of estate — Bom-
bay Min-ors Act (XX of 1S64), s. 2 — Decree bine
ing minor<. In execution of a decree against
the estate of V, his estate was sold, and it ultimately
came into the hands of the plaintiff as purchaser, who
.' ued for partition. It was contended that two of the
defenflants, parties to the suit in which the decree
was passed, being then minors, were not properly
represented by their mother, O, also a party defend-
ant to the suit, she not having obtained a certificate
of administration under Act XX of 1SG4, and that
the decree did noti,therefore bind them. Held, that
s. 2 of Act XX of 1 Sri4 did not apply, as, though G
had not obtained a certifi(-ate, she did not claim
charge of the estate. Vijkor v. Jijibhai Vaji, 9 Born.
313, and Jadoiv Midi v. Chhagan. Baichand, I. L.
B. ■', Bom. 30f>, followed. Held, also, that an issue
having been raised and determined in the suit in
v.hich the decree was passed that G did represent the
minors as guardian for the suit, and as the decree
expressly named them as sued by G, their guardian,
the minors were expressly made parties, and were
projjerly represented by G. Hari v. Narayan, I.
L. B. 12 Bom. 427, and Hari Saran Moitra v.
Bhiban-.yua.ri Dbi, 1. L. R. 1': Ca c. .0 : L. R.
15 I. A. 195, followeil. \'asudev Morbhat Kai.e
V. KniSHXAJi Ballal Cokii \i e

I. L. R. 20 Bom. 534

42. — Guardian ad

litem, appointment of — Act XI \ of 1SS2, ss. 44-'], 41-4
— Act XL of 185S, s. ,'' — Minors, guit ajain-^t, im-
pruperl'/ framed. In a suit intended to be brousht
against some minors, the defendants were set out in
the headinii of the plaint as " Sharoda Sunderi
Debya, widow of Chundra Kanta Chuckerbutty,
decc'ased, mother and guardian of the minors"
(setting out their names). At the filing of the
plaint, the plaintiff applied for and obtained an order
making Sharoda guardian of the minors for the pir-
poses of the suit. She was not, liowever, guardian
of the property and persons of the minors under
Act XL of ISoS. Held, that the minors were not
parties to the suit ; that the order maldng Sharoda
guardian ad litem was not made in a suit in which
the minors were defendants ; and that the suit must
be dismi>scd as against the minor.*. HcU, also. tha»
I. either the Code of Civil Proccdun- nor the proviso
of s. S of Act XL of I8.')S give a plaintiff any f>u\vec
to institute a suit against a jK-r.^on named by isimsf If
as guardian ad litem on behalf of a minor, nor do
they give to the Court the jHiwer of transferring, by
a mere order made ex parte an irregular proceeding
such as the one above mentioned into a suit
against the minor. Gi'R0 Chtrv CjircKEUutrrv
V. Kali Kissex Tagore . L L. R. 11 Calc. 402

( 8283 )

DIGEST OF CASES.

( 8284

'M.I'NO'R—confd.

5. REPRESENTATION OF MINOR IN SUITS—
contd.

43.

Suit against per

son of uliose estate a certifirate of administration
■is subsequently obtained — Eiglil of guardian to
defend. A suit having been instituted upon a bond
and no aj^P^^'^'*'^^'^ entered by the defendant who
admittedly AAas over 18 years of age on the date of
Ihe institution of the suit, A obtained a certificate of
guardianship in respect of the property of the defend -
ant under Act XL of 1858, and having been allowed
upon such certificate to defend the suit on behalf of
the original defendant, pleaded minority. Held,
that, notwithstanding the appointment as guardian
A ought not to have been made a defendant, the
original defendant not being a minor when the suit
was instituted. Krishna Mongui. Shaha v.
Akbar Jum.ma Khan . . 9 C. L. R. 213

44. Appearance for

minor — Notice of decree — Presence of vakil. A
statement in a decree that a vakil had appeared and
was present in Court for a. minor when the decree was
made was held, in a suit to set the decree aside as
being made behind his back, to be notice to the minor
of the decree having been made. Rckhyakur
Bhuttacharjee v. Kuroona Moyee Dabee

25 W. R. 280

45. Civil Procedure

Code, s. 442. S. 442 of the Ci\il Procedure Code
refers to a case where the plaint on the face of it
appears to have been filed by a person who was a
minor. Beni Ram Bhutt v. Ram Lai. Dhukri

I. L. B. 13 Calc. 189

46. Minor, when

hound by proceedings against him — Minors Act
(XX of 1864), s. 2 — Suit by a minor one year
after attaining majority, to recover property sold,
in execution of a decree obtained against him during
minority. In 1870 a creditor of the plaintiff's
father brought a suit (No. 573 of 1870) against
the plaintiff, and obtained a money-decree against
him. The plaintiff was then a minor, and his
estate was administered by the Collector of Rat-
nagiri. In this suit he was represented by his
mother and guardian. At the sale held in 1871
in execution of the decree the property in question
was purchased by the defendant, who obtained pos-
session in 1876. In 1879 the plaintitf attained
majority, and in 1882 he brought the present suit to
recover the property from the defendant. Held,
that the plaintitf was not bound by the proceedings
in suit No. 573 of 1870, as he had not been properly
represented as required by s. 2 of Act XX of 18G4.
Vishnu Kesshav v. Ramcuandra Bhaskar

I. L. K. 11 Bom. 130

47. Decision of

Survey Officer under Boundary Act {XXVIII of
ISCO) — Pepresentation fcy Mcmager appointed
under Mad. Beg. V of 1804, s. 8. A Survey Offi-
cer in 1875 held an enquiry under the Boundary
Act, 1860, and demarcated certain land out of a
z,amindari. At that time the zamindar was a minor

MIK"OR— con^cZ.

5. REPRESENTATION OF MINOR IN SUIi-
contd.

under the Court of Wards, and he was represipec
at the enquiry by the manager of his estate apporec
under s. 6 of Regulation V of 1804. In auit
brought by the zamindar to recover the land i.'a-
contended that the decision of the Survey Office ta
not binding on the zamindar because he wasiot
properly represented by his guardian at the en( ry
Held, that the decision of the Survey Officer, -a;
binding on the zamindar. Kamaraju v. Seore h\
or State for India , I. L. B. 11 Mad,D8

48.

Costs— C-

Of 0]

defendants. Suit for — Necessaries — Contract A':
OS. Where a suit has been brought again.st a vrm.
the eilect of whicfi, if successful, would tc
deprive the minor of his property, the ccs oi
successfully defending that suit on his behalf ly,
when his property is in the hands of the Receiv of
the Court, be recovered trom the minor a? njjs-
saries i.i a:i aition b -ought against him bjiia
attornev. Watkins v Dhunnoo Baboo

I. li. R. 7 Calc. 140 : 8 C. L. R. 3S

49. Next friC-

Solicitor's costs for proceedings undertaken oth(
next friend's instructions — Liability of miflofo)
costs when he repudiat&s the proceedings — yes
saries. A solicitor cannot recover the costs of 1 !;a'
tion incurred by the next friend of a minor o his
behalf from the quondam minor, who, on comi ol
age, repudiates the proceedings, there being ao la-
tion of contract bewteen them. Assuming tha he
legal proceedings were in the nature of necess^es,
the next friend is the person responsible tche
solicitor. Watkins v. Dhunnoo Baboo, I. iB-
Calc. 140, distinguished. Branson v. Api'ASAi
I. L.B. 17 Mad. 57
hill

50.

Suit

of minor "by Court of Wards — Personal liady
of officer representing Court of Wards — C ice
between innocent persons. A suit on behalf
minor b}' the Court of Wards, which was the '
Commissioner before whom it was instituted,
been dismissed in apijcal by the High Court,
held that the Deputy Commissioner by wlv
thority it had been instituted ought not t-
tried the suit, and that, though in an ordinary
person who appeared on the record on behal
infant would be liable for the costs, in this '
the Deputy Commissioner was no longer in otl
of two innocent persons must bear the costs,
the minor or the defendant. It was deter!
accordingly that the defendant must stiffe'
was in part to blame for allowing the
proceed. Bikromajeet Mullo Og^vlscnu" ^
V. Court of Wards . . . 11 W. B.i-'-

51. — Suit byh'^'

on behalf of themselves and other legateci-
Procedure Code {Act XIV of 1882), s. S«'
against next friend. A legatee cannot sue on
of himpelf and other legatees without an or( "'
the Court obtained under s. 3U of the avilfO'

( 8285 )

DKJEST OF CASES.

( 8286 )

1 NOR — contd.

5 REPRESENTATION OF MINOR IN SUITS—

C07ltd.

c lire Code enabling hira so to sue. Where a
1( tee, a minor, sued in that form by her next
f nd without such an order, the next friend was
hi liable for costs on his adducin2 no evidence
t' how that the suit was for the benefit of the
nor. Geereeballa Dabee ik Ceiunder Kant
J IKEKJEE . . I. li. R. 11 Calc. 213

2. Certifieate of heirship —

t\t. Reg- VIII of 1S~7. Under the provisions of
Fulation VIII of 1827, a certificate of heirship
c not be granted t) a minor. Bat Baiba v. Bai
r|;0BA ... I. li. R. 6 Bom. 728

'3. — Settiig aside a decree —

iii sentative of minor — A'jretmvi* to refer to
a tration — Guardian — Civil Procedure Code (Act
Al ' of 18S2), s-s. 443 and 462. The step-mother
o,a minor against wliose estate the defend-
a'i had claims, referred ths matter to arbitration,
p'sDrting ti) act on the minor's bshalf. No suit
h then been filed by or atiiinst the minor. An
a rd was made in 1899, directing the minor to pay
t(|he defendants a sum of R950, and a decree was
plied in terms of the award. In the following
y''-, the minor, by his next friend, brought this
St' to set aside the decree, on the grounds (a) that
t|l minor had not been properly represented, and
V hat leave of the Court under s. 402 of the Civil
P';edure Code (XIV of 1882) had not been ob-
tied. The lower Courts allowed the plaintiff's
cliti, and set aside the decree. On appeal by the
d-indants: Held (reversing the decree of the
kj?r Courts, and remanding the case for hearing
o'-he merits), (i) that there was nothing on the
rtjrd to show that the minor had no guardian
w'n the asreement to refer was mxde, and there
w. no allegation to that eff ?ct in the plaint ; and
(ijthat s. 462 of the Civil Procedure Code did not
ajly. That section contemplates the existence of
a jiardian and a pending litigation. Here, when
tl. agreement was made, there was neither a guar-
dji for a suit nor a suit. Vithaldas Ganpat v.
Dtakam Ramciiandra (1001)

! I. L. R. 26 Bom. 298

14. Hindu Law — Joint Hindu

f(\ilif — Suit bif sons to obtain exemption of
tf^- thares from sale under a decree on a mortgage
laintiffs parlies to the suit in which the
ee was passed, but minors, and not properly
''seiUed—Gunrdian and minor — Res jiudicata —
C / Procedure Code, s. 457. A suit was brought by
tl|mortgagee to enforce a simple mortgage of an-
ctjral property, executed by the father of a joint
H;du family consisting; of himself and two sons.
AIhe time of the suit.the sons were minors, and the
Wer was first named as their guardian rt'f litem ;
"'jhe refused to act, and thereupon the mother of
^ minors was appointed their cuardian nd litem.
T suit terminated in an er parte decree for sale
*< nst all the defendants. The minors thereupon
^ to obtain a declaration that the decree fof sale

MIN OB,— co7itd.

5. RKPRESENTATIONOFMINORIN SUITS—
contd.

did not affect their interests in the joint family
property, inasmuch as they had not been properly
represented in the suit in which it was passed, their
mother boincr, as a married woman, incapable in
law of acting as their guardian. No question of
fraud was shown to arise in the case. He'd, that
the minors, on the facts stated above, were entitled
to tlie decree ask?d for. Dnrga Pe.rsid v. Kesho
PeriadSinjh, I.L.R.8 Ca'c. 656; Mungairam.
Marwiri v. Mohunt Gursahi Xunl, L. R. 16
I. A. 195 ; Vishnu K^shav x. Rimchandra Bhas-
kar, I. L. R. 11 Bom. 130; Daji Himat v.
Dhirajram Sadnram, I. L. R. 12 Bom. 18 ; Xawab
Mahomed Nooroollah Khan v. Hnrcharan Rat,
6 N.-W. P. H. C. 198 ;Daulat Singh v. Raghubir
Singh, All. Weeklj/ Notes (1894) 141 ; and
Raghuhar Dayal Sahu v. Bhikya Lai Misser,
I. L. R. 12 Calc. 69, referred to. Sham Lal v.
Ghasita (1901) . . I. L. R. 23 AIL 4-59

55.

Gross negligence of next

friend— .S(t('< on behalf of minor by w.xl friend
— Review — Right of minor to have suit rfslored —
Minor consenting party to petition for withdrawal —
Civil Procedure Cole (Act XIV of 1882), s. 462.
Whan the next friend of a minor plaintiff with -
draws from the suit, it is open to the minor, through
another next friend, to have the suit re-oi)ened on
review, on the ground that the former ne.xt friend,
though guilty of no fraudulent conduct, was grossly
negligent of the minor's interest in withdrawing
from the suit. Ram Sarcp L\l »•. Suati Lvtaf\t
HossEiN (1902) . . I. L. R. 29 Calc. 735

56. Absence of formal order

appointiag guardian — Guardian — Guardian ad
litem— Civil Procedure Code (Act XIV of 1882), as.
413, 578 — Sanction of appointment by Court —
Irregul-irity — Service of summons on minors, defect
in — Substantial representation of minors in suit.
Under s. 443 of the Civil Procedure Code (Act
XIV of 1882), the Court is bound, after satis-
fying itself of the fact of minority, to appoint a
proper person to act on behalf of a minor in the
conduct of a suit ; and this rule should b? strictly
followed. But where the Court, by its action, has
given its sanction to the appearance of a person as
such a guardian, the absence of a formal order of
appointment is not necessarily fatal to the proceed-
ings. The mother of certain minor defendants ap-
peared throughout the procecdinss in a suit as their
guardian : the G)urt admitted the plaint in which
she was described as guardian, and in the decree
and execution proceedings the Court so described
her : HeM, that, although no formal order ap-
pointing her guardian ad ilrm was drawn up. the
minors were eff 'ctively represented in the suit by
their mother, and with the sanction of the Court.
The absence of a formal order appointing the mother
guardian ad litem, and the fact that no attempt was
made to serve the minors (members of a joint
family) or their mother personally with a summons.

( 8287 )

DIGEST OF CASES.

828S

M.ll!fOR—co7itd.

5. REPRESENTATION OF MINOR IN SUITS—
concld.

before serving it on the only adiilt male member and
the manager of the joint family, were held, under
the circumstances, there being nothing to suggest
that the interests of the minors were not duly i^ro-
tected, and the defects in procedure not having
prejudiced them, to be merely irregularities under
s. 578 of the Code of Civil Procedure, and not errors
fatal to tlie suit. Suresh Chunder Wum Clww-
dhury v. Jagut Chunder Deb, I. L. R. 14 Cede.
204, and Hari Saran Moitra v. Blmhaneswari Debt,
I. L. R. 16 Cak. 40, referred to. Walian v. Banke
Behari Pershad Singh (1903)

I. L. K. 30 Calc. 1021 :

s.c. 7 C. W. N. 774 ;

L. E. 30 I. A. 182

^-Guardian ad litem, retention

57.

of — Nazir — Court's poirer to relieve. There is noth-
ing that compels the Court to retain as guardian ad
litem of a minor one of its officers, where the
circumstances of the case make it clear that the
interests of the minor will be thereby imperilled.
The Court has power to relieve the Nazir of his
position as guardian when the Nazir has no funds
for the purpose of conducting adequately the defence
of the minor. Naraindas Ramdas v. Saheh Husein,
I. L. R. 12 Bom. 553, referred to. Copilal v. Aoar-
siNJi (1904) . . I. L. E. 28 Bom. 626

58. Minor not represented—

Suit. Mere intention that a suit should be for
the benefit of a minor would not bind the minor's
interest, when the minor was not represented in
this suit by a guardian, either natural or appointed ,
and the suit did not purport to be instituted on his
behalf. Case of Hindu joint family distinguished.
Chal'dhri Ahmed Baksh v. Seth Raghuber
Dyal (1905) . . . 10 C. W. H. 115

6. COMPROMISE DECREE.

— Minor — Compromise

decree — Gvardian — Practice — Suit to set aside
compromise decree on ground other than fraud
— Right of suit — Compromise filed without consent
of guardian- — Sanction of Court. A suit was insti-
tuted for a declaration that a compromise decree
made against the plaintiffs in a previous suit, when
they were minors, ^^■as void on the ground that the
petition of compromise had been put in by the
pleader engaged by their guardian in that suit
against the express wishes of the latter. Held,
that the suit Avould lie and that the plaintitifs \\ere
entitled to shov/ by evidence that the compromise
was filed without the consent of their guardian
and was therefore not binding upon them, although
they had set up a case of fraud qua the decree and
had failed to prove it. Held, further, that in order
to make the decree binding on the minors it was not
enough to show that the sanction of the Court to the
compromise was obtained. Where a decree is pas-
sed upon adjudication, no separate suit would lie to

MTNO'R—contd.

6. COMPROMISE DECREE— cowcZrf.

set aside the decree except on the ground of fraud
but where the decree is passed simply upon a com
promise, a suit should lie to set aside the decre
upon grounds other than that of fraud. Ansliootos
Chandra v. Taraprasanna Roy, I. L. R. 10 Calf
612 ; Lalji Sahu v. The Collector of Tirhut, 6 B. L. h
648, 15 W. R. P. C. 23 ; Mewalall Thakoor v. Bhujhv
Jha, 13 B. L. R. App. 11 : 22 II'. R. 213. Ramgow
Majumdar v. Prasanna Kumar Samad, 2 C. L. J.SOi
Barhamdeo Prashad v. Banarsi Prasad, 3 C.L. ,/. Ih
and Manohar Lai v. Jadunath Singh, I.L.R. 28 Al
58', referred to. Surendra Nath Ghose >
Hemangini Dasi (1906) . I. L. K. 34 Calc, 8'

7. CASES UNDER BOMBAY MINORS Acl
(XX OF 1864).

See Account, suit for.

I. L. E,. 8 Bom. 1'
See GuARPiAN.

See Sale in Execution of Decree-
Decrees AGAINST Representatives

I. li. R 5 Bom. 1'

1. Application of Act— Minor

resident out of Presidency. The Bom } I n
Act (XX of 1864) does not apply to minors whoar
not resident within the Presidency of Bomba}

MaGANBHAI PuRSHOTAAIDAS l». VlTHOBA BIN NaRA

yan Shet ... 7 Bom. A. C. '

Alii nation

person not holding a certificate under the Act—Natnn,
or de facto guardian — Charge of minor's persoi
and property — Jurisdiction of Civil Court— Ad X.
of 1858. The Bombay Minors Act (XX of 1864i
does not forbid the natural or de facto guardian of I
minor not holding a certificate under the Act fror!
disposing of property belonging to a minor. Tb.
meaning of the first "section of the Act is that th!
care of the persons of all minors and the charge d
their property shall be, as is expressly provided i
Act XL of 1858, subject to the jurisdiction of th
Court. HoNAPA V. Mhai.pai

I. L. E. 15 Bom. 25

3. s. 11 — Construction — " May:'

shall. ' ' The provision in s. 11 of the Minors A^
(XX of 1864), that when the estate of a minor cor
sists of land the Court " may " direct the Collecti
to take charge of the estate, is not obligatory. ^1
re BoEVEY . I. L. E. 4 Bom. 8£|

Nazir of Court— Officer <•■

Government— Bombay Civil Courts Acts {XIV
1869, s. 32, and X of 1876, s. 15)— Collector— Pvhi
Curator under Act XIX of 1841. The nazir of
Civil Court who is appointed guardian of the estiU
of a minor under Act XX of 1864, is not an ofifici
of Government within the meaning of s. 32 of -A
XIV of 1869 as amended by s. 15 of Act X of 1S7
An officer of Government, in order to come with
those enactments, must be a party to a suit in h
official capacity. The only otHcers of Governmei

8289 )

DIGEST OF CASES.

( 8200 )

: INOB.—contd.

CASES UNDER BOMBAY MINORS ACT
(XX OF 1864)— con<(Z.

lom Act XX of 1864 contemplates as guardians
the estates of a minor in their official capacity are
,? Collector of the district and the public curator
.pointed as such under Act XIX of 1841. Mohan-
. jwAR f. Haku Rupa . I. L. R. 4 Bom. 638
Contra) V.\sudev Vishxu Dikshit v. Narayax
J'jannathDikshit I. L. R. 4 Bom. 642 note

Authority of the Political

i ent appointed by Government as
r nager of the estate of a minor Chief to
E 3 in respect of the Chief's property in
I itish territory . A suit was brought by the
pitical Agent, Southern Maratha Country, as
a inistrator of the estate of the Chief of Mudhol,
vt ) was described in the plaint as being nineteen
y rs of age, to eject the defendants from certain
if Is, belonging to the Chief, situated in the Satara
D rict. The defendants raised a preliminary ob-
jf ion to the institution of the suit by the Political
A lit, on the ground (among others) that he was not
a rtificated guardian of the Chief under the Bom-
b, Minors Act (XX of 1864). Held, that the ap-
P'ltment by Governraent of the Political Agent to
niagc the estate of the Chief of Mudhol during
a -rtain period could not give him the position
ccemplated by the Bombay Minors Act (XX of
IH). With regard to property in British India,
hiiad no authority to sue on behalf of the minor
w tout obtaining a certificate of administration
u: >r the Act. Venkatrav Raje Ghorpade v.
il)HAVEAV Ramchaxdra I. Ii. E. 11 Bom. 53

Natural father of minor—

Aintio7i — Residence of minor. The natural father
of I minor who has been adopted into another
faily is not by Hindu law his proper guardian
-^\a either of the adoptive parents is living and
wiiig to act as guardian. The residence of the
miir \rith the adoptive parents is a part of the
CO ideration for their adoption of a son, and unless
se: us ill-treatment or incompetency on their part
be roved, they and the survivor of them are the
prjer guardians. Lakshmibai v. Shkidhar Vasu-
OE Taklk . . . I. L. R. 3 Bom. 1

'i — Foreign guardian— .Stn< hy

nti\iriend. A foreiiin guardian will not be recog-

niz: in the Courts in this country in a suit brought

l>y[ch guardians to recover, on account of a minor,

pr(! 3 arising from immoveable property. Where

' ^ was brought by the agent of a minor's guar-

I'ointed by H. H. the Gaekwar of Baroda, it

red that the proceedings should be amend-

-cril)ing such agent as the next friend of the

Ml which capacity he was then permitted to

AOANBHAI PuRSHOTAMDAS V- VlTHOBA BIX

^A Vij; Shet . . . 7 Bom. A. C. 7

. ^ Certificate of administra-

i\Xi\-Father suing on behalf of minor son. A
i»t |r on' behalf of his minor son entitled to pro-
per! is his own right must obtain a certificate of

MINOR— co«/^/.

7. CASES UNDER BOMBAY MINORS ACT
(XX OF 1864)— conW.

administration under s. 2 of Act XX of 1864. Sita-
RAM Bhat v. Sitaram Gaxesh

6 Bom. A. C. 250

9. Widoiv suinrj on

behalf of son. A widow without a certificate of ad-
ministration under Act XX of 1864 is precluded
from bringing a suit in her own name in resjx^ct of
her minor son's property. Gopal Kashi r. Ramabai
Saheb Patvadhax ... 12 Bom. 17

10. .-ill a against

minor — Power of DiMrid Judge. S. 2 of Act XX
of 1864 does not prohibit a person having a claim
against a minor from bringing a suit until a certih-
cato of administration has been granted. He may
properly bring his suit, but immediately after his
doing ^o he should apply to the District Judge for
the appointment of an administrator, and it is com«
petent to the District Judge under s. 8 of the Act to
make that appointment. In re ^Iotiram P»rPA-
CHAND 11 Bom. 21

11. Bight to inititvte

suit on behalf of minor. There is nothing in the
Minors Act (XX of 1864) to prevent the institution
of a suit by the next friend of a minor who has not
obtained a certificate of administration to the
minor's estate, but \\ho claims no right to have
charge of the minor's property, asking for a declara-
tion of the minor's rights, and for an order directing
the defendant to pay money he owes to the minor
into the principal Civil Court of the district. As the
right, however, of a friend to institute a suit on
behalf of a minor is under the control of the Court,
and as the Minors Act, by ss. 3-7, enables a friend of
tl'.e minor to protect his interests bv applying for the
appointment of a fit person to have charge of the
property of the minor and to protect his estate,
the proper course for a Court, to which a plaint on
behalf of a minor is presented by his friend, is cither
to refuse to accept the plaint, when there is no
pressing necessity for its acceptance, or in case
such pressing necessity exists, to accept the plaint
and stay proceedings until the plaintiff has duly
obtained a certificate under the Act. Vijkor v.
JiJiRHAi Vaji .... 9 Bom. 310

12.

Suit agaivst

minor. A suit against a minor whose estate exceeds
R250 in value cannot be proceeded with unless he
be represented by a person holding a certificate of
administration under Act XX fif 1864. The plaint-
iff may apply to the District Judge to appoint an
administiator if none such has been apiwinted.
Dhoxdiba LAKSHrM.iX V. KrsA

6 Bom. A. C. 219

13.

Guardian uithout

certificate, authority of, to represent minor in a suit
brought ag'iinst hitn. \Micre a guardian of a minor
had not obtained a certificate under the Bombay
Minors Act (XX of J 864), the minor was held to be
not properly represented in a suit in which a decree
had been obtained against the guardian purporting

12 H

( 8291 )

DIGEST OF CASES.

( 8292 )

MINOR— fonYrf.

7. CASES UNDER BOMBAY MINORS ACT

(XX OF lS6i)—contd.
to represent the minor. Daji Himat v. Dhiraj-
RAM Sadaram . . . I. Ij. R. 12 Bom. 18

14, Guardian — Act

XX of 1S64, s. 2 — Procedure— Civil Procedure Code
{Act X of 1S77), s. 440. Act XX of 1864 is not
su])erseded by Act X of 1877. Where therefore a
widow claimed to have charge of property in trust
for her minor sons : — Held, that it was necessarv,
under s. 2 of Act XX of 1864, that she should
obtain a certificate of administration if the whole
estate was of greater value than R250 ; and that
it was competent to the Court, if there was any
pressing necessity (owing to the operation of the
law of limitation) that a suit should be brought at
once, to accept the plaint and stay proceedings
until the mother had obtained a certificate under

Act XX of 1864. MURLIDHHR V. StTPDTT

I. L. R. 3 Bom. 149

15. • Next friend —

Securit'f of minor's estate — Act XX of 1S64. Where
there is a next friend of a minor willinsr and com-
petent to act for him, such next friend mav file a
suit on his behalf, or continue one already filed,
without a certificate of administration. In the
event of a decree being passed in the minor's favour,
the Court can, in the absence of an administrator
under Act XX of 1864, make such arrangements
as it deems expedient for the security of the minor' s
estate, as by appointing an administrator under the
Act. Nag Th.akub v. Madnaji Sapasriv

I. X.. R. 8 Bom. 239

16.

Hindu law —

Joint famihi — Unsepirated minor — Certificate of
administration of minor's share when necessary —
Manager. Three brothers belonging to a joint
Hmdu family instituted a suit in the Court of a Sub-
ordinate Judge in their own names and on behalf of
their minor brother to set aside an alienation of the
family property made by their deceased father.
The Subordinate Judge ruled that one of the plaint-
iffs must procure a certificate of administration
under Act XX of 1864, s. 2, before the suit could
proceed. Held, that no certificate was necessary.
The manager of the family should be allowed to
proceed with the suit as next friend of the minor,
with permission, if necessary, to amend the plaint
accordingly. Narsingrav Ramchaxpra v. Ven-
KAji Krishxa . . I. Ii. R. 8 Bom. 395

17. Proceeding to

enforce award — Civil Procedure Code, 1S59, s. 327
— Bnm. Act XX of 1SS4, s. 2. As proceedings taken
to file and enforce an award under s. 327 of the
Civil Procedure Code are of the nature of a suit
within the meaning of s. 2 of Act XX of 1864, a
minor must be represented in such proceedings by a
person holding a certificate of administration.
Vasudeb Vishnu v. Narayan Jaganxath

9 Bom. 289

18.

Guardian —

Guardian of -property — Guardian of person — Neces-

miNOn—coutd.

7. CASES UNDER BOMBAY MINORS AC

(XX OF lSQ4:)—€ontd.
sity for issue of certificate of administration in ordt
to complete appointment of guardian of propert
The Bombay Minors Act (XX of 1864) does not, :
terms, provide for the appointment of a guardian
the property of a minor, Ijut only for the grant of
certificate of administration, so that, until the cer1
ficate is issued, there is no such appointment of tl
guardian of the property as will extend the age
the minority from eighteen to twenty-one. Bi
it is diflierent as regards the appointment of a gua;
dian of the person. The Act provides, in tern-
for such an appointment being made, and no cer
ficate of appointment is contemplated by the A,
on the language of which it is plain that the a,
p^intment of a guardian of the person is compk'
on the order of the Court being made appoint
him. The plaintiff's mother, G, died in 1866 pi
sessed of property which she had inherited from 1-
husband. The plaintiff, who was born in 1858, V;>
then a minor of the age of eight years. In 1867 ?
plaintiiJ's maternal grandfather obtained a ce-
ficate of administration. On his death, an ordeil
Court was made on the 21st March 1873, appoint^
the Nazir of the Court administrator of the propef
and the plaintiff's mother-in-law the guardian of e
person of the plaintiff, but no fresh certificatff
administration was granted. In 1880 the plairff
brought the present suit against the defendant: o
recover from them the property left by hermot'f.
The defendants contended, inter alia, that ;.e
plaintiff had attained her majority in 1874, wm
she arrived at the age of sixteen, and that the it
was therefore barred by limitation. The plaint,
on the other hand, contended that the In(>n
Majority Act (IX of 1875) was applicable, and 1 1.
under its provisions, she did not attain maj'
until she was twenty-one, i.e., until the year 1
and that the present suit was therefore in t r.
Held, that the suit was not barred bv limita'.jn.
The Indian Majority Act (IX of 1875) was aili;
cable (except so far as its operations was excli
by s. 2), inasmuch as there was a guardian of
person of the plaintiff in existence both whi^r
arrived at the age of sixteen and also when sin
eighteen, and therefore the period of minority
her was extended to twenty-one years of
Yeknath v. Warubai . I.Ij. R. 13 Bom.jiiS

Act XX of

s. IS — Assignment ivithout sanction of Court.
of the Minors Act XX of 1864 applies only t.
sons to whom a certificate has been granted '
that Act. An assignment of a mortgage thei
by a widow, acting as natural guardian of her i
son, but who has not obtained a certificate i
the Act (XX of 1864), is not invalid because efl|'*J
without the sanction of the Court. ]\lAXiSH.4r;-**
Praxjivax v. Bai Muli .1. L .R. 12 Bom '88

20. — — Surety for guardian 'i'»

minor's estate — Bombay Minors Act, $.'■—
Release of surety— Contract Act {IX of 1S72), '0
AYhere a surety for the guardian of a minor's »«*•

( 8293 )

DIGEST OF CASES.

( 8294 )

MINOR— concW.

. CASES UNDER BOMBAY MTNORS ACT
(XX OF 18G4)— coHcW.

ippointed under the Bombay Minors Act (XX of
'864) applied to be released from his obli;?ation as
'urety on account of the guardian's maladminis-
l:-ationof the estate i—Held, that the very object of
Inquiring security was to guarantee the minor's
3tate against such misconduct or mismanagement
n the part of the guarelian ; that the surety there-
>re could not be discharged ; and that s. 130 of
lo Contract Act (IX of 1872) was not applicable to
■ eise. Quaere : AVhether the surety may not
• ply to the Court for protection against the fruar-
aii. Bai Somi v. Chokshi Ishvardas Maxgal-
^-^ . . . I. li. R. 19 Bom. 245

"NOR WIFE.

Sec Letters of AD^^^'I!^TRATIo^^

I L. R. 34 Caie. 706

llSrORITY.

>See Evidence . I. L. R. 29 All. 29

-See Guardian.

See Limitation Act, s. 7.

9 C. W. N. 537

See Minor.

disability of—

See Limitation— Statutes of Limit-
ation—Act XXV of 1857, s. 9.

13 B. L. R. 445
See Limitation— Statutes of Limit-
ation—Act IX OF 1859, s. 20.

13 B. L. R. 292
L. R. 1 I. A. 167
See Limitation Act, 1877. s. 7.

I. L. R. 29 Bom. 68
See Limitation Act, 1877, s. 8.

I. L. R. 10 Bom. 241
I. L. R. 13 Mad. 236
I. L. R. 16 Mad. 436
See Limitation Act, 1S77, Art. 177.

I. L. R. 18 Mad. 484

See Madras Revenue Recovery Act,

s-59 . . I. L. R. 17 Mad. 189

— evidence of—

See Evidence Act, s. 35.

I. L. R. 17 Calo. 849
I. L. R. 18 All. 478

I NORS ACT (XL OF 1858).

' See Guardian.
'S'ee Minor.

* RAS TALUQ.

See Grant, construction of.

I. L. R 35 Calc. 1069

MIRASIDARS.

See Landlord and Tenant— Mirasi-
dars.

See Landlord and Tenant — Xatire o'

Tenancy . I. L. R. 17 Bom 475

I. L. R. 19 Mad. 485

I. L. R. 27 Mad. 291

See MiRASi Tenant.

See Tanjore Custom.

I. L. R. 27 Mad. 51

MIRASI TENANT.

See Inamdak . I. L. R. 29 Bom. 415

See MiRASiDARs.

MISAPPROPRIATION OF PROPERTY
See Certificate of Administration —
Effect of Certificate.

5 B. L. R. 371
See Company — Winding up — Liability
OF Directors and Officers.

I. L. R. 29 Calc. 688

See Criminal Misappropriation.

>See Receiver . I. L. R. 17 Mad. 501

I. L. R. 18 Mad. 23

I. L. R. 20 Mad. 224

I. L. R. 27 Calc. 279

— by employees of Government —
See ^Master and Servant.

I. L. R. 36 Calc. 647

by grantee-

See Ad.ministkator.

I. li. R. 35 Caic. 955

by servant —

See Master and Servant.

I. li. R. 36 Calc. 647

damages for—

<See Hindu Law — Joint Family — Sale op
Joint Family Property in Execution
of Decree, etc.

I. L. R. 24 Calc. 672

MISCARRIAGE.

See Penal Code, s>. 312-315.

Causing miscarriage — Penal

Code, s. 312. The ollcncc defined in s. 312 can only
be committed when a woman is in fact pregnant.
Queen v. Kabul Pattub . 15 W. R. Cr. 4

2. Penal Code, s. 312

—"■' With child ''—'^tage of pngnaiic'j immaLri-il.
A woman is with child within the meaning of s. 312
of the Penal Code as soon as she is pregnant. Held,
therefore, where a woman was acquitted on a
charge of causing herself to miscarry, on the ground
thatlhe had only been pregnant for one month, and
that there was nothing whi.h could be called even a

12 H 2

( 8295 )

DIGEST OF CASES.

( 8296

MISCARRIAGE— concW.

rudimentary foetus or child, that the acquittal was
bad in law. Qtjeen-Empeess v. Ademma

I. L. R. 9 Mad. 369

" 3. Attempt to cause miscar-
riage— Penal Code, «■'?. 312, '11. In a case in
which the child was full grown, the Court declined to
convict the accused of causing miscarriage under
s. 312 of the Penal Code — that section supposing
expulsion of the child before the period of gestation
is completed, — but convicted them of an attempt to
cause miscarriage under ss. 312 and 511, read to-
gether. Queen v. Arunja Bewa

19 W. R. Cr. 32

MISCELLANEOUS PROCEEDINGS.

Civil Procedure Code, 1877-1882,

s. 647 (Act XXIII of 1861, s. 2Q)-Procedure.
S. 38, Act XXIII of 1861, was not intended to make
the procedure and the powers of the Court which
may be applicable in suits before decree applicable
to proceedings in suits after decree, hut to provide a
procedure as nearly resembling Act VIII of 1S59 as
possible for other cases not being suits. In the
inatter of the 'petition of JoDOO Monee Dossee

11 W. R. 494

MISCHIEF.

See Attempt to commit Offence.

3 B. L. R. A. Cr. 55

See Complaint — Institution of Com-
plaint AND NECESSARY PRELIMINARIES

I. L. R. 21 Bom. 536

See Compounding Offence.

I. L. R. 22 Bom. 889
See Criminal Trespass.

11 C. W. N. 467
See Jurisdiction I. L. R. 36 Calc. 869
See Landmarks I. L. R. 30 Calc. 1084
See Offence relating to Documents.

I. L. K. 12 Mad. 54
See Penal Code, ss. 425 to 440.

-See Theft . I. L. R. 15 Calc. 388
I. L. R. 17 Calc. 852
I. L. R. 35 Calc. 437

1. Requisites for offence— Pena/

Code, s. 425. The authority vested in the Criminal
Court of punishing persons for acts of mis -hief is
one which must be exercised with great caution,
and it must be very clear, before conviction, that the
accused has brought himself within the meaning of
s. 425 of the Penal Cbde. In the matter of the j.eti-
tion of Ram Gholam Singh . 6 W. R. Cr. 59

2. Probable conse-
quential damage to other property. To constitute
the offence of mischief according to the Penal Code,
the act done must be shown to have caused des-
truction of some property or such a change in the
property, or the situation of it, as destroys or dimi-
nishes its value or utility, .or affects it injuriously.

MISCHIEF— con^rf.

The probable consequential damage to other o
perty would not of itself constitute mischief. .' o
nymous . . . . 4 Mad. ApU

3. Penal Code, s. 2i

— Wrongful intention. In order to convict a -r
son of the oifence of mischief under s. 426, Pa
Code, it is for the prosecution to prove tliattii
accused caused damage with a wrongful intent tl
a knowledge that he was not justified in dnj
it, and that the party under whose orders he a!
acting had no real title. Issur Chunder Mtt>li
V. RoHiM Sheikh . . 25 W. R. Ci3£

4. Damage to non-exism

right— Penal Cod s. 425 — Eevenue sale — Daigi
done beticeen date of sale and grant of certifier —
Wrongful loss to property held under tncmieli
title. The damage contemplated in s. 425 o h(
Penal Code need not necessarily consist in thin
fringement of an existing, present, and com?t(
right, but it may be caused by an act done )w
with the intention of defeating and renderinin
fructuous a right about to come into exist ce
Any person who contracts to purchase propty
and pays in a portion of the pure base- money la;
such an interest in that property, although histk
may not be complete or his right final and colu
sive, that the destruction of such property laj
cause to him wrongful loss or damage withiitht
' meaning of s. 425. Dharma Das Ghose v. 'js-
j SERUDDiN . . - I. L. R. 12 Calc. 80

5. Invasion of right eaung

' wrongful loss— PewaZ Code (Act XL] o\
1860), ss. 3Jl-J25—Wrongf2d restraint. \m
complainant had for the purpose of removal pcec
j certa'n goods upon a cart, and accused caminc
unyoked the bullocks, and turned the goods o th(
! cart on to the road, and complainant thenpot
went away at once leaving them there : — FeW.iat
under these circumstances, a conviction under 341
of the Penal Code could not be sustained ; bu hal
there ^vas such " mischief " as to bring the o i "
within s. 425. Held, also, that s. 425 d<"
necessarily contemplate damage of a dest;
character. It requires merely that then-
be an invasion of right, and diminution of th
of one 's property, caused by that invasion '
which must have been contemplated by the .i ■
it when he did it. In the matt-r of the petim Oj

JUGCESHWAR DaSS. .TuGGESHWAE DaI »

Koylash Chunder Chatterjee ,

I. L. R. 12 Ca,i 56

6. Person dealing with ">

perty under belief it is his own
Code, s. 425. If a person deals injuriou.^l
property in the bond fide belief it is his o
cannot be convicted of mischief. Empr
BuDH Singh . . . L L. R. 2 A

ilOl

7. Cutting and carrying

hsimboos— Penal Code. >-. ^-'(5. In a ease ii
the accused was charged with having cut a;
ried away bamboos, the right to which was dis^
it was held that he could not be convicted •

( 8297 )

DIGEST OF CASES.

[ISCHIEF— co/i/rf.

liief under s. 426 of the Penal Code. Shakur

lAHOMBD V. ChUNDER MoHUN ShA

' 21 W. R. Cr. 38

8. Cutting trees on land in
lother's possession. A person commits mis-
(.ief if he cut= trees on land which he claims, but of
iiich possession, after an execution-sale, has been
'iilly made over to another person, without any

tion or formal intervention on his part.

\l SaRDAB V. BUKHTAR SaEDAR

25 W, R. Cr. 46

9. Cutting Government trees
ithout leave. Held, that it was not illegal to

:- 1 prisoners of mischief as well as of theft, the
fs charged being that they had cut down
riiment trees without leave, and appropriated
Reg. v. Narayax Krishna

2 Bom 416 : 2nd Ed. 392

iLO.

42.5— Act III of ISo

Cattle straying — Penal Code,
17 — Negligence. S. 425

•■'''' Penal Code supposes that the destruction was

1 with the intention to cause wrongful loss or

-'e, and does not apply to cases of mere care-

J-iiess; and s. 17, Act III of 1857, supposes the

ij«chief (cattle trespass) was done intentionally,

m not by nesjligence. Queen v. Araz Sircar

10 W. R. Cr. 29

kASHlNATH GhOSE V. DiXoBUNDHOO MyTEE

16 W. R. Cr. 72

'■■ —_ Allowi>ig cattle to

Tiic mere fact of allowing cattle to stray,

■y damage is caused to the complainant^

,- no evidence to support a conviction on the

L'e of misciiief. Anoxymous 6 Mad. Ap. 37

Trespass. Mere

I lect on the part of an owner of cattle to keep
tin from straying into fields is not causing cattle
t -nter a compound within the meaning of s. 425 of
t Penal Code. That section requires that, before
■tjon-ner is convicted of the offence, it must be pro-

S^i that he actually caused the cattle to enter,
wing that by so doing he was likely to cause da-
le. Forbes v. Girish Chundra Bhutta-
■c RJEB . 6 B. L. R. Ap. 3 : 14 W. R. Cr. 31

Penal Code (Act

2V of 1860), s. 425. In order to constitute tht
nee of mischief within the meaning of s. 425 of
Penal Code, it is not sufficient to show that the
ler of cattle which had caused damage was guilty
carelessness in allowing them to stray. The
?ecution is bound to show that there was an in-
lon to cause wrongful loss or damage. Empress
5ai Baya . I. L. R. 7 Bom. 126

Penril Code,

26— Cattle Trespass Act, I of 1S71, s. 10— Cattle
«i«9 damage to crop— Liability of owner. The
ler of an animal which strays on to another's
I, and causes damage to the crop thereon, does
unless he has wilfully driven it upon the land,

MISCHIEF-^onW.

commit the offence of mischief under s. 42fi of the
Penal Code. Queen-Empress ,-. Sh.uk Kaju

I. L. R. 9 Bom. 173

15, Cattle Trespass

Act, lSo7, s. IS— Penal Code, s. 425. In the case of
a conviction by a Subordinate Magistrate, under s.
18 of Act 111 of 1857, of a person who through
neglect permitted a public road to be damaged,
by allowing his pigs to trespass thereon -.-Held, on
a reference to the District Magistrate, that the con-
viction was not illegal, because the land damaged
was a public road, as the right to use a public road is
limited to the purposes for which the road is dedi-
cated. Reg. v. Lingana bin Ginbana

4 Bom. Cr. 14

16. Damage caused by cattle—

Penal Code [Act XLV of 1860), ss. 425, 426— Act
(Local) No. I of 1900(N.-W.P.an4 Oudh Munici-
palities Act), s. 167. Certain cattle belonging to one
M. H. upon various occasions when in chai-ge of a
servant of M. H. strayed, or were driven, into the
Government Gardens at Saharanpur and there
caused damage. Held, that M. H. could not on these
facts be convicted of the offence of mischief. Forbes
V. Grish Chancier Bludtacharjee, 14 W. R. 31, and
Empress v. Bat Baya, 1. L. R. 7 Bom. 126, followed.
Held, also, that s. 167 of the Municipalities Act,
1900, did not apply, that section being one dealing
with offences against the person. King Emperor v.
Patan Din, All. Weekhj Notes (1905) 19, followed!
Emperor v. Mehdi Hasan (in07)

I. L. R. 29 All. 565

17. - — ■ Grazing cattle on waste

lands. The defendants were convicted of mischief
under s. 427 of the Penal Code for grazing their
cattle upon waste lands without payment of
certain capitation fees to which the prosecutor
was entitled. Held, that there was no evidence
that the defendants caused mischief. ANiiNVMurs

5 Mad. Ap. 30

18. Interference with fishery

—Penal Code, s. 425 — Wrortujful loss — Proof of title.
The right to a fishery was in dispute between the
zamindar of Bally and the zamindar of Moharaj-
pore. The former obtained a decree in tlie Civil
Court declaring the fishery to be his, in proceedings
to which tiie latter was not a party, and the servants
of the Bally zamindar tiiereupon removed a bam-
boo bar, which the Moharajpore people had erected
to prevent the passage of fish. For this they were
convicted of mischief under the Penal Code, and
punished by fine. Held, on reference to the Hich
Court, that the conviction could not stand, as the
Moharajpore zamindar had not shown that he was
legally entitled to the fishery, and as it did not
appear that the defendants were acting otherwise
than from a band fide belief that the Moharajpore
zamindar was encroaching on their master's rights.
Bakar Halsana v. DrsoRANDiir Biswas

3 B. L. R. A. Cr. 17

s.c. Queen v. Denoo Bundhoo Biswas

12 W. R Cr. 1

( 8299 )

DIGEST OF CASES.

( 8300 )

MISCHIEF— confrf.

19.

Pulling up stakes lawfully

placed at sea within territorial limits-

Penal Code, ss. 425 and 427. \Miere certain of the
inhabitants of the village of Man&ri in the Thana
district sallied out in boats and pulled up and re-
moved fi niimber of fishinj; stakes lawfully fixed in i
the sea within three miles from the shore by the
villagers of a neighbouring village : — Held, that
the Penal Code was the substantive law applicable
to the case, and that the offence amounted to mis- |
chief within the meaning of ss. 425 and 427 of that
Code. Reg. v. Kastya'Rajm . 8 Bom. Cr. 63

20. Opening irrigation sluice

at wrong time— Penal Code, s. 425. The i
defendants were convicted of mischief under the
following circumstances. During certain seasons
of the year they received water through a sluice for
the irrigation of their lands. At another season j
the sluice was closed and the water allowed to flow j
to the lands of other cultivators. This arrange-
ment was prescribed by the revenue authorities
and the defendants violated it by opening their
sluice during the season prescribed for the irrigation
of the lands of the other cultivators. Held, that
the conviction could not be sustained : there had
been no destruction of property or diminution in the
value or utility of property by the defendants with-
in the meaning of s. 425 of the Penal Code. Axon Y-
Mors . " . . . .7 Mad. Ap. 39

21. • Endangering safety of river

embankment — Intention. Where the accused
had, while extending a garden and laying the
foundation of a house, encroached on the inner slope
of a river embankment, and thereby endangered
the safety of the whole station -.—Held, that, in
order to justify a conviction for the offence of mis-
chief, it must appear that the accused person had
done a particular act with intent to cause, or know-
ing it to be likely to cause, wrongful loss, and that,
as the house and garden on which the accused was
engaged would be the first to be swept away in the
event of the dreaded breach in the bund and conse-
quent irruption of the river, such guilty knowledge
or intent could not reasonably be inferred on his
part. In the matter of the petition of Prax
Nath Shaha. In the matter of the petition of
PvOMA Xath Baxerjee . 25 W. R. Cr. 69

22. Causing diminution of

water-supply — Act done tvithont shmv of right —
Penal Code, s. 430, Held, by the majority of a
Full Bench (Ixxes, J., dissenting), that it is not
part of the definition of the offence of- causing a
diminution of water-supply for agricultural pur-
poses that the act of the accused should be a mere
wanton act of waste. It is suificicnt that the act is
done without any show of right. Ramakkishxa

ChETTI v. PaLANYAXDI KrOAMBAR

I. L. R. 1 Mad. 262

MISCHIEF— conW.

to assert any claim to it, the causing of a diminuti
of the supply of water by the accused, even thou
in the assertion of a right, was held to be only
additional wrong, and to constitute mischief witl
the meaning of s. 430 of the Penal Code. Re.
Krishna Chetty v. Palanyandi Kudambar, I. L.
1 Mad. 262, followed. Queex-E.mpress ?•. Jaoa
XATH Bhikaji Bhave . I. L. R. 10 Bom. li;

23. Causing diminu-
tion of ivater-supply — Petial Code, s. 430 — Water-
course. Where upon the evidence it appeared that
the complainant was the exclusive owner of a water-
course, and that the accused had no sort of right

24.

Damage to bridge throuj

floating logs. The accused were convicted:
mischief. The acts were, that whilst the accus.
were employed in floating timber through a bridi,
some of the logs struck against the arch of the brid .
Held, that the conviction was bad. AxoxYMorf
5 Mad. Ap. 4

25. Erection by one joint ow;i'

of edifice without consent of other;

Land held by joint owners — Penal Code, s. 4ia-
Wrongful loss. A, a joint owner of a parcel of lai;,
erected on it an edifice without the consent aji
against the will of B, another joint owner. A d-
pute having arisen in consequence, the Magistnl'
held an inquiry, and made an order, under s. 530:
the Criminal Procedure Code, 1872, aT*-arding tol
exclusive possession of the part of the land ii
which the edifice had been erected. B then broujt
a suit in the Civil Court to establish his title to- jot
possession of the whole parcel and for a declarati
that A was not entitled to erect any edifice therec;
and he further prayed that such edifice should 3
removed. B obtained a decree, whereupon 3
servants went on the land and pulled it down. Tl|r
were charged before the Deputy Magistrate wi
having committed mischief, and on this convici
and fined. Subsequently the accused found e
men in the employ of A were putting up this eri-
tion, a nawbatkhana, again, and accordingly i.|-
tested against its erection, pulled do^vn the bamb 3
thrust aside the servants of .4, throwing to '^.
ground one man who was clinging to the bamhj^
Held, per Jacksox', J., that as there had beeno
causing of wrongful loss, the accused had not ba
guilty of mischief. Held, further, per CuxxiNGH
J., that the acts of the complainants in erecting
nawbatkhana amounted to mischief and caje
^^ithin the purview of s. 425 of the Penal Co
Empress v. Rajcoomar Sixgh

I. L. R. 3 Calc. 573 : 1 C. L. E. B
2C. L.R.a

26. Destruction of carcasj-

Right to tkin of animals — Village mahars—Ci-
tom. The owner of an animal who buries it apr
its death is not guilty of mischief or any otk
offence, although he does so with the express obft
of preventing the mahars of his village from taljg
its skin according to the custom of the coun|?.
Queex-Empress v. Govtxda Puxja j

I. L R. 8 Bom. 5*

27. Destruction of immcfl-

document— Pewrt/ Code, s. 426. The destruc+c
of a document evidencing an agreement voidfC
immorality may constitute the offence of miscPt

( 8301 )

DIGEST OF CASES.

( 8302 )

MISCHIE F— con td.

.vithin the meaning of s. 426 of the Penal Code.
.iVEES V. VVAPURY . I. li. R. 5 Mad. 401

28. Bona fide claim of right—

Indian Penal Code (Act XLV of ISiiU), s. 4J'i—rrac.
iice— Rule— Magi strrite, if can add to or supplement
his judgment, in showing cause. Where the accused
was convicted of the offence of mischief, s. 426,
.Indian Penal Code : Held, that the conviction was
bad, inasmuch as the accused acted in the exercise
ol&bovd fde claim of right. In showing cause, it is
not open to the trying Magistrate to submit obser-
yations with a view to supplement or add to his
iudgment. M.^vdhu Sudan Das OrpTA v. Sasti
kosAD N.VNDY (1903) . 7 C. W. K. 859

I 29. Pollution of food — Caste —

PemiCode {Act XLV of lsr,0), ss. 426, 29S, 604—

''ilful jyollution of food sfried at a caste dinner.
.i.tfrtainHindi:s present at a caste dinner had sat
iown to partake of the food which had been served
':o them, when ceitain other members of the caste
•same, and after telling those who were seated to
!nove to another place, which they refused to do,
'hrew down a shoe amongst the men who were
.eated. The persons who "threw the shoe were
'onvicted of mischief, on the ground that their
j.ction had polluted the food, and had, from a Hindu
'eligious point of view, rendered it unfit to be eaten.
' l)n reference by the Sessions Judge : — Held, that

his conviction was wrong ; neither could the ac-
' used be convicted under s. 298 or under s. 504 of
[he Indian Penal Code on the facts found. KiXG-
Empekor v. Moti Lal (1901)
! I. L. E. 24 All. 155

' 30. Cutting channel — Indian

%ml Code {Act XLV of 1860), ss. 426, 143

t-Riot — Cutting a channel across one''s own lands

Into a jhil in possession of another — Defect

n charge — Prejudice. The accused, who were

lervants of S, were convicted by a Magistrate,

jnder ss. 426 and 143 of the Penal Code, for

javing cut a channel from a jhil which was in

'■"" possession of B, and by so doing let out

■ ; and fi.sh from the jhil. The Magistrate had

I 1 that the land adjoining the jhil, across which

liannel had been cut, had been in the possession

On appeal, it was contended that the accused

1 perfect right to make the cutting in their

■: Ts' land. Held, that, though they had that

t . it did not follow that they had a right to extend

cutting beyond and through the bank of the

"7, which, with the jhil itself and the land under-

eath the water, were in the possession of B ; and

ye conviction could not be set aside on that around.

HOSHi Bhcshan Bose v. Gobixd Chaxdrv Roy

.903) . . . . 7 C. W N. 663

81. Cutting paddy— /«'//'(«

'eml Code {.Act XLV of 1S60), s. 426— Mischief
\-Cuttiv/f paddy, if mischief, when no findinq
\at it was not fit to be cut — Theft. A person
)uld not be convicted of the oi^ence of mischief
nder s. 426, Indian Penal Code, for cutting
jiddy which the Court found to belong to the
l)mplainant, when it was not found that the paddy

MISCHIEF— concW.

was not in a tit state to be cut. In th" luntter of

Miras Chaukidar(1903) . 7 C. W. N. 713

32. Intention— Iwlian Penal Co>le,

ss. 403, 426 — Crimin/d misappropriation of property
— Dishonest intention — Deterioration of the value of
mortgaged property. When the reversioner of a
mortgagor sold some of the bricks of the mortgaged
house which had tumbled down, and appropriated
the amount, and the Magistrate convicted him of
criminal misappropriation of property, and mis-
chief : Held, that, as no dishonc-^t intention and no
substantial deterioration of the mortgaged property
was shown, the conviction was hid. Bhiban
Mohan Baxerjee v. Tansuk Roy Servo. a ( lOiti i
6 C.W.N. 34
MISCONDUCT.

of arbitrator —

See Arbitration — Awards — Validity of
Awards, and Ground for setting
them aside.

See Arbitration Act, ISOO, s. 14.

13 C. W. N. 63
MISDESCRIPTION.
of goods—

See Carriers

I. L,. R. 34Cale. 419

of property, effect of -

See Practice — Civil Cases — Sale by Regis-
trar . I. L. R. 29 Calc. 420
See Sale in Execution of Decree — Errors
IN Description op Property sold.

MISDIRECTION.

See Appeal in Criminal Cases — Pr.\c"
tice and Procedure.

4 C. W. N. 166 ; 576

.L. R. 27 Calc. 172

I. li. R. 21 Calc. 955

See Charge to Jury —
Summing up in General Cases :

I. li. R. 27 Bom. 644

Misdirection ;

Special Case— Stolen Pf.opekty.

I. li. R. 26 Mad. 467
■See Confession— Confessions to :\Iagis.
trate . I. L. R- 26 Mad. 38

See Criminal Procedure Codf. s. 223.

8 C. W. N. 278

See Jury, trial by.
See Kidnapping

13 C.W.N. 754

See Penal Code, ss. 114, 100. 4«i<;.

9C.W. N 69

See Private Defence, right or.

I. L. R. 35 Calc. 368

See Privy Council. pR.\rTi. e i>f— Crimi-
nal Cases . . I. L. R. 15 All 310
I. L. R. 22 Bom. 528

( 8303 )

DIGEST OF CASES.

( 8304 )

MISDIRECTION -cowc^Z.

See Revision — Criminal Cases — Ver'

DicT OF Jury, and Misdirection.
See Verdict of Jury — Power to inter-
fere WITH Verdicts.

23 W.R. Cr 21

I. L.R. 9 All. 420

I. L. R. 14 Mad. 36

I. L. R. 23 Caic. 252

to Jury—

^ee Charge . I. L. R. 36 Calc. 281
^eeJuRY . . 13C. W. N. 197

Confession — Evidence

Act {I of 1872), ss. 27 and 31 — Confession of an
accused person, tchicli is not the immediate cause of
the discovery of stolen property in the house of another
accused cannot, under s. 30 of the Evidence Act, be
considered as against such other accused — Statement
made by a witness to a Police Inspector or to an investi-
gating Magistrate, who is not the Committimj Magis-
trate, though in the presence of the accused, is not
admissible as evidence. Under ss. 27 and 30 of the
Evidence Act, a confession made by one accused
can be taken into consideration against another
accused, when such confession is the immediate
cause of the discovery of some fact relevant as
against such other accused ; and a. direction to the
jury to take such confession into consideration
when it is not the immediate cause of any such dis-
covery, is a misdirection. It is also a misdirection
to ask the jury to take into consideration against
the accused a statement made by a witness before a
Police Inspector or before a Magistrate, who, though
an investigating Magistrate, is not the Committing
Magistrate, when such statement is withdrawn
before the Committing Magistrate and before the
Court of Session. Sankappa Rai v. Emperor
(1908) . . . I. L. R. 31 Mad. 127

MISFEASANCE,

(See Endowment . I. L. R. 34 Calc. 587
^ce Negligence . I. L. R. 33 Bom. 393

MISJOINDER.

Col.

1. Misjoinder of Causes of Action . 8304

2. Misjoinder of Parties . . . 8305

3. Misjoinder of Parties and causes of

Action • . 8315

/SeeAD.MiNiSTRATiON . 15B. L,. R. 296
I. L. R. 26 Calc. 891
See Appellate Court — Other Errors
affecting or not Merits of Case.

6 Bom. A. C, 177

7 Bom. A. C. 19

23 W. R. 408

13 W. R. 176

I. L. R. 10 Calc. 1061

I. L. R. 15 All. 380

I. li. R. 24 Calc. 540

I. L. R. 17 Mad. 122

MISJOINDER-^oji^f?.

See Civil Procedure Code, 1882, ss •''
53 . . . I. L. R. 28 Mad. 5C

See Civil Procedure Code, 1882, ss. -1
31 . . I. L. R. 33 Calc. 36

See Costs — Special Cases — Misjoinde

See Criminal Proceepivgs.

I. L. R. 28 Calc. 7 ; 1

See Criminal Procedure Code, s. 133.
9 C. W. N. 1

See Hindu Law — Joint Family— Powei
of Alienation by Members — Othi
Members . I. L. R. 1 Calc. 2'^

See Joinder of Causes of Action.

See Misjoinder of Charges.

See Multifariousness.

See Parties. ,- j

Sec Slander 15 B. L. R. 161 ; 166 not|

See Specific Relief Act, s. 27.

I. L. R. 1 All. 5.!

See Wrongful Distraint.

I. L. R. 25 Calc. 28

— of charges —

See Joinder of Charges.
See Misjoinder of Charges.

of persons in criminal trial-
See Joint trial.

I. L. R. 33 Calc. 29

1. MISJOINDER OF CAUSES OF ACTION. j

See Agra Tenancy Act, ss. 193 and 57.
I. L. R. 29 AIL l|

See Civil Procedure Code, 1882, s. 44 (i
I. L. R. 31 Bom. K

See Civil Procedure Code, 1882. s. 4.").
I. L. B. 29 All. 26|

See Civil Procedure Code, 1882, s. 5?. '
I. L. R. 26 All. 2:

See Debtor and Creditor.

I. L. R. 26 Bom. 5"

See Hindu Law — Adoption.

I. L. R. 36 Calc. li

See Joinder of Causes of Action

See Libel . I. L. R. 35 Calc. 7S

— Cause of action — Ci

Procedure Code (Act XIV of 1882), ss. 26, 31,
and 53 — Persons jointly interested in a suit — Claii
not antagonistic — Plaint, amendment of. A suit 1
recovery of possession of certain property by A (
heir of one K) and B as purchaser of a portion of t
property from A is maintainable and is not bad f
misjoinder of causes of action. The qualificatid
implied in the words in respect of ' ' the same cau

8305 )

DIGEST OF CASES.

( 8306 )

ISJOIND ER— cow/«?
MISJOINDER

OF CAUSES
concld.

OF ACTION-

action " in s. 26 of the Civil Procedure Code,
luld be satisfied, if the facts, which constituted
•e infringement of the ridit of the several plaintiffs,
•re the same. Sdliina Bihi v. Sheikh Muhammad,
1 L. R. IS All. 131, not followed. Haramoni
]is8i V. Hari Charon Chowdhnj, I. L. B. 22 Calc.
'3, referred to. Suxdar Jha r. Bas-smax -Tit \
)06) . . . I. li. R. 33 Calc. 367
s.c. 10 C. W. N. 508

2. MISJOINDER OF PARTIES.
See Civil Proceduee Code, 1><82. ss. 16,
19 . I. L. R. 30 All. 560

See Civil Procedure Code, 1882. s. 28.
I. L. R. 33 Bom. 293

See Civil Procedure Code, 1882, ss. 26,

31.
See Civil Procedure Code, 1882, s. 53.
I. L. R. 26 All. 218
See Criminal Proceedings.

I. L. R. 28 Calc. 104

See Criminal Procedure Code, ss. 107'

235, 239.
.See Limitation Act (XV of 1S77), p. 14.

I. L. R. 35 Calc. 728

See Libel . I. L. R. 35 Calc. 728
See Partie.s . 1. L. R. 33 Calc. 425

1. Misjoinder of parties — Suit

iUtcronnt from difftrt ut dates an'iimt two jxrsnii-'i.
]ja suit for an account against A and B as agents,
ii' plaintiff a-'kcd for an account as against .-1 from
!;i3'(185S) to 1283 (1876), and as aaain.st R from
lltl (1874) to 1283 (1876). Edd, that there had
hn no misjoinder. Degamber Mitter ?;. Kally-
.'ira Roy . . . I. L. R, 7 Calc, 654

J8.c. Degumber Mozumoar v. Kallynath Roy
; 9 C. L. R. 265

ji« — — Suit on bond not

i\dging hnids. Plaintiff sued on a simjile money
1 id for the recovery of a sum of money lent by him
',5 A, a female, whose estates were under the
ijnagement of a Court of Wards, and he made co-
tendants in the suit certain otlier parties whom he
4rged with endeavouring to have the estates of
4|4 transferred to them. He also tendered in evi-
f'lce another bond, by which R A, the principal

' lant, purported to secure a further advance,
' pledge her raraindari estate* to the plaintiff
r debt was paid off. Held, that the plaintiff
' 1 no ground of suit against the other defendants,
»:o whom there was misjoinder, except R A, the
rjicipal female defendant, as his cause of action
ajinst R A was based on the first bond, which did

create any charge upon the lands with which
y are said to have meddled. Mahomed Zahook

Khan v. Rutta Kooer . 9 W. R. P. C. 9
11 Moo. I. A. 468

MISJOINDER— <:on/(i.

2. MISJOINDER OF PARTIES— <ron<rf.

3» — Suit on bond

ht/pothecatinj immoveable property — Joinder of
debtor and purchaser of property. I'he holder of
a bond hypothecatina property who seeks to recover
the debt due under the bond from his debtor, and to
bring to .sale the hypothecated property which is in
the hands of a purchaser, is at liberty to "implead the
debtor and the purchaser in the same suit, and there
is no objection to such an action on the ground of
misjoinder. BuoGi Lal v. Chutter Singh

6 N. W. 323
dLstinguishinir Makund Ram v. Debi Das

6 TS. W, 324 note

Suit on bond.

The plaintiff alleged in hi? plaint that R had agreed
in a bond to borrow from him R5,0(M) in order to
institute a suit ajainst D as to his share in certain
joint ancestral property ; that R conse({uent!y bor-
rowed R3,000 from him, and that, while tlie suit
was pending, R and D, in collusion with each other
and their mother, in order to deprive the nltintiff <pf
his money, agreed to refer the suit to their mother,
who, by reason of their collusion, made a statement
which resulted in a smaller sum beincr decreed to R
than was claimed by him, and in the property in
suit remaining in the possession of D ; and that, as
both R and D had taken collusive proceedings, with
intent to obstruct the plaintiff's realization of his
money, they \^ere both liable for the said sum of
R3,060, and he therefore brought this suit to re-
cover R 3,000 principal, ant^ R 3,000, an equi-
valent of that sum, under the terms of the bond ;
and that the cause of action arose on the day on
whi -h R and D agreed to refer their suit to their
mother. Held (Pearson, J., dissenting), that the
suit was bad for .'.lisjoinder of parties. Bi<HF:<HrR
I'L-iisHAD V. Ram Churun . . 5 N. W. 25

5. yon-reqigtration

as tenant-). Where a single suit for rent against the
holders of several tenures is objectetl to on the
ground of misjoinder, the mere fact of non-regis-
tration as separate holdings is no answer to the ob-
jection. The Court should inquire whether the
tenants have not in fact been dealt with as holders
of separate tenures. L.alun Monee '•. Sona
MoneeDabee . . . 22W. R. 334

Suit aga')i.it I'-^s(es

and their sureties — Jurisdiction of Rrremic Court.
Though a Revenue Court had, under Act X of 1S59,
no jurisdiction to take cognizance of a suit against
the sureties of a lessee, a suit brought against the
lessees and their sureties was not had fur mis-
ioindcr. DoORGA Persh.4D v Sheor a.i Singh

^ 5 N. W. 222

Suit for dtan of

partnership assets — In'solvent estate — Administra-
tion suit by creditors — Addition as plaintiff of
receiver in administration suit. In a suit by the
widow and executri.*^ of a testator who at his death
was a member of a mercantile firm, the plaintiff

( 8307 )

DIGEST OE CASES;

( 8308 )

MISJOINDER— con<«f.

2. MISJOINDER OF PARTIES— con^t?.

claimed to be entitled to 60 cents or shares in the
firm up to the date of the testator's death, and to a
like share in the profits earned subsequently to his
death, or to be earned by the firm so long as it con-
tinued to carry on the said agency business of the
company. The defendant admitted the right of the
plaintiff to the share claimed in the profits earned
prior to the testator's death, but resisted her claim
to any portion of the subsequent profits. The
testator's estate had proved insolvent ; and previ-
ously to the filing of this suit an administration suit
had been filed by creditors. By a decree made in
that suit on the 23rd January 1883 a receiver had
been appointed, who was made a co-plaintiff with
the executrix in the present suit. Tt was contended
on behalf of the defendant that there was a mis-
joinder, the receiver being only entitled to sue for
what might be due to the testator's estate up to the
date of his death. Held, that there was no mis-
joinder. The receiver might have sued for every-
thing that was due to the estate, but for greater
safety the executrix was added as a plaintiff.
Bachtjbai v. Shamji Jadowji

I. Ij. R. 9 Bom. 536

Plaintiff's having

separate intere-iU. In a suit by two plaintiffs for the
value of personal property plundered, of which one
plaintiff owned certain articles and the other was
the owner of others, if the cause, time, place, and
parties charged be the same in both instances, the
fact that both plaintiffs have not a joint interest in
the whole of the property plundered by the defend-
ants is insufficient to put them out of Court.
JuGOBrNDHOO Dtjtt V. Maseyk

W. R. 1864, 81

Prccedure where

one 'plaintiff is found to have no interest. In a suit
to recover property bought by one S and his
mother D as guardian of his minor brother,
where it was found that D alone was entitled to the
properties as heir to its owner, her late father : —
Held, that it was not necessary to dismiss the suit
on account of its formal incorrectness, but the name
of S should have been struck off the record, and the
suit allowed to proceed as that of D alone. iSree-
EA5I Hazrah v. Gyaeam Hatee . 11 W. R. 507

10.

Suit by mort-

gagee to recover possession of mortgaged propert//.
In a suit by a mortgagee for possession of the mort-
gaged property, on the allegation that some of the
defendants under subsequent mortgages and pur-
chases had opposed him in obtaining possession ;
and to have it declared that the said mortgages and
purchases were inoperative : — Held, that the plaintiff
had but one cause of action upon his mortgage deed,
and was right in joining all the defendants in the
suit. Bal Kishex Mahapattttr v. Bistoo rnrRX
22 W. R. 532

11. Suit to cancel

mortgage and deed of sale. A registering oflScer hav-

MIS JO HJ-DE R— con td.

2. MISJOINDER OF PARTIES— oonW.

ing refused to register a deed of sale of

certain pr

perty executed by S in favour of B, B sued S l.
K claiming the completion of the sale with delive
of the sale-deed duly executed, and possession of tl
property by cancelraent of a deed of mortgage of t:
same executed in Z's favour by S. Held, that t
suit was bad for misjoinder. Behari Lal
KuNDUN Lal . . . . 7 W. W. 1(

12.

Owners of sej.,

mte holdijigs once joint. A suit to recover
sion as cultivators, brought by two plaintiffswhc
holdings, although originally one, have for a lo
time been separated and held separately, will
dismissed for misjoinder. Girwur v. Nyaz .i
2 K". W. 3

13.

Separate intere^

in subject-matter of suit. R owned one-third f
an estate, and P, B, and S owned another thi;
jointly. In a suit in which R, P, B, and <S join,
in bringing against N, who was in possession unc
a deed of gift, they claimed possession and to He?
the deed of gift set aside. Held, by the Full Ben ,
that there was no misjoinder of plaintiffs in the si .
Ram Sewak Singh v. Nakched Stxgh

I. L. R. 4 AU. SL

14.

Suit for cj-

frmation of possession of land not in joint
The plaintiffs alleged that certain of their la s
had been wrongly recorded in some settlem t
papers as belonging to the defendants, but declad
themselves to be still in possession of them, d
prayed that they might be maintained in possessn
by the correction of the error in the record, wl,h
threatened the disturbance of their possess i.
They did not allege, however, that the fields' n
question, or any of them, had been recordecis
jointly belonging to the defendants, nor was sth
the case. Held, that, under such circumstarl-s,
the plaintiffs had no such common cause of ac>n
in the matter of the suit against the defendan as
would justify the course taken in suing thenUl
together. GrxGA Rai i'. Sakeexa Begfm |

5 N. W%

15.

Suit for pre-

tion. Three several sales of separate shares ii
same mehal were the subject-matter of the dii
sale in a suit for pre-emption, and the purcha-'
one of the shares and the purchaser of the othr>
shares were different persons, and the pla
claimed the right of pre-emption in respect '
three shares, and indiscriminately impleaded a
several vendors and vendees, who had no cor
nity of interest in the subject-matter of the 'i''
The Court, allowing the plea of misjoinder, v[ch
both the lower Courts had overruled, remandepe
case to the Court of first instance, in order thafhe
plaint might be returned to the plaintiff for anjjo'
ment, and the suit tried and decided afresh 'ier
amendment. Golam v. Wajiva Bibi L ^

7 N". W 8»

{ 8309 )

DIGEST OF CASES.

( 8310 )

M IS JOHTDER— <;on^f .

MISJOINDER OF PARTIES— conirf.

16.

Suit for redemp-

;.ton of mortgage — Civil Procedure Code, 1869, \
,9. S — Parties. K was in possession of mouzah i
iDharmapore as usufructuary mortgagee. A share
i.n the mouzah was sold in the execution of a decree j
[igainst the shareholder. It was afterwards trans- I
(erred by private sale to .S' by the auction-purchaser, i
■S, alleging that the mortgage-debt had been satisfied j
lut of the usufruct, sued to recover possession of the j
'jhare, and impleaded not only K, but also the heirs |
Si the mortgagors, and his vendee, the auction- |
ipurchaser, but no cause of action was declared \
igainst those parties, nor did they resist the suit, j
the lower Courts dismissed the suit on the ground
r.at separate causes of action, not between the same

ii-s, had been included in one suit. The High
It reversed the decrees of the lower Courts so far

ihey dismissed the suit against the heirs of the
lUortgagors and the mortgagee, and remanded the
|uit for trial, as since the heirs of the mortgagor
]rere interested in the account which must have been
,aken in the suit, it was necessary to make them
)artirs in order that they might be bound by

t. SCKHAWAT AlI V. KeSHO TeWARI

6 N. W. 208

17. Specific perform-

|:nce, suit for — Joinder of third person not party
lo the contract. In a suit for specific performance of
I contract entered into by defendant No. 1, the
iilaintiff joined as a defendant a third person who
illeged that he was the owner of the property, the
-iubject of the contract, seeking to obtain possession
ind other relief as against such third person, stating
'hat he was a benamidar of the first defendant,
j.'here was nothing to show that such third person
lad any interest distinct from the first defendant.
Veld, that there was no misjoinder. The principle
|iid down in the cases of Houghton v. Money,
'-. i?. 2 Ck. App. 166, and Luchumsey Oolerda v.
' -idla Cassumhhoy, I. L. E. 5 Bom. 177, viz.,
I a person not a party to the contract cannot be
1.1 d in a suit for specific performance, is only
pplicable where from the plaintiff's case it appears
jhat the third party, not a party to the contract, has
i distinct interest from that oi the other parties to
he contract, which interest is sought to be declared
jull and void. JIokund Lall v. Chotay Lai.i,

I. L. R. 10 Cale. 1061

-'^- Civil Procedure

• *•• ~6 — Amendment of plaint — Specific Relief

". 4'2—Dfclaraiory suit. Suit by six plaintifis

\ mg for a declaration that certain proceedings of

'i>trict Temple Committee removing them from

'■as trustees of a temple were illegal. Defend-

~ pleaded that the suit would not lie because of

"inder. Held, that, under s. 2G of the Code of

1 Procedure, the plaintiffs could not sue jointly,

that the plaint should be returned for amend-

: t, one of the plaintiifs to be allowed to use it as

^ 'wn. R.\MANUJA V. Devanyaka

I. L. R. 8 Mad. 361

I MISJOINDER— con^7.

2. MISJOINDER OF PARTIES— cow^rf.

1®' — Plea of misjoin-
der, when sustainable— Suit against several persons
claiming under different titles, effect of— Civil
Procedure Code, ss. 31 and .5.3. A, as auction-pur-
chaser at a revenue sale, brought a suit against a
number of persons for possession of .some chur land.
The defendants claimed portions of the land under
different titles and pleaded misjoinder. The Court,
upon the Ameen's report, gave A the option to
amend the plaint by withdrawing the suit against
any particular sets of defendants. .4 elected to go
to trial on the suit as brought. Held, that, under the
circumstances, it was necessary for the Court to
adjudicate on the question of misjoinder. Held,
also, that the plaintiff was not entitled to join in < ne
suit all the persons, on the ground that they ob-
structed his possession, unless he was able to show
that those persons acted in concert or under some
common title. Held, further, that, having regard to
the provisions of ss. 31 and 53 of the Civil Proce-
dure Code, the proper order of the Court should have
been to reject the plaint and not dismiss the suit on
the ground of misjoinder. SrDHEXDr Moht-x Roy
V. DuRGA Dasi . . I. L. R. 14 Calc. 435

20. - Civil Procedure

Code, s. 44, Pule {h). An objection to the attach-
ment and sale of certain immoveable property^
raised by one who claimed to liave purchased the
same at a sale in execution of a prior decree, was dis-
allowed on the ground that under the prior decree
the rights of one only of the present judgment-deb-
tors had been sold and purchased by the objector.
In accordance with this order, two-thirds of the
property under attachment were sold ; and the
objector thereupon brought a regular suit for a de-
claration of his riglit as a purchaser of the whole
property in execution of the prior decree. To this
suit he impleaded as defendants tiie decree-holder
and the judgment-debtors. Tlie suit was decreed,
and in the result the decree-holder alone was com-
pelled to pay the whole of the costs. Subsequently
he brought a suit for contribution in respect of these
costs, making defendants to the .suit (i) R. one of his
co-defendants in the previous suit, personally and
as heir of A, who was another of those co-defend-
ants, (ii) A% and (iii) S. these two being sued in the
character of heirs of .-1. Held, with reference to a
plea of misjoinder within the terms of rule ('<) of s.
44 of the Civil Procedure Code, that, even if there
were misjoinder of parties, the first Court, having
proceeded to trial of tiie suit, and not having re-
jected the plaint or returned it for amendment, or
amended it, should have disposed of it ujxjn the
merits, and found what .-I's share in the amount
paid by the plaintiff was. and whether assets to that
amount had come to the hands of the defendants as
her heirs. Kishxa R.am r. Rakmini Sewak Sisr.n
I. L. R. 9 All. 221

21.

Form of suit.

The defendants' ancestors or predecessors in title
were the cultivating tenants of the lands of a certain

( 8311 )

DIGEST OF CASES.

( 8312 )

MlSJOINBim^contd.

2. MISJOINDER OF PARTIES— con^ii.

tample from a date not later than 1827, in which
year they were so described in the paimaish ac-
counts. In 1830 they executed a muchalka to the
Collector who then managed the temple, whereby
they agreed among other things to pay certain dues.
They were described in the muchalka as paracudis.
In 1857 the plaintiff's predecessors took over the
manaciement of the temple from, and executed a
muchalka to, the Collector, whereby he agreed
among other things not to eject the raiyats as long
as they paid kist. In 1882, the dues (which were
payable separately) having fallen into arrear, the
manager of the temple sued to eject the defendants.
HelcU^ha.t the suit was not bad for misjoinder.
Thiagaraja v. Giyaxa Sambandha Pandara
S.ANN.ADHi . . . I. L. R. 11 Mad. 77

22. Joinder of plaint-

iffs — Wrongful net affecting the rights of the several
plaintiffs — Trespass. Where certain persons were
alleged to have committed a wrongful act by evict-
ing °the plaintiffs from certain land in which the
first plaintiff claimed to be entitled to the melvaram,
and the other plaintiffs to the kudivaram -.—Held,
that a suit brought by the plaintiffs jointly was not
bad for misjoinder. Muthuvijaya Raghunadha
Raju Tevar v. Chockaling \m Chetti

I. L. R. 19 Mad. 335

23.

Mad. Reg. V of

MISJOINDER— co?i/d.

2. MISJOINDER OF PARTIES— co/i<d.

filed a regular suit to set aside the attachment.
The Court of first instance decided in plaintiffs"
favour. The defendants appealed. The lower
Appellate Court was of opinion that the interests of
the two plaintiffs were antagonistic and following
the decision in Linganwial v. Chinna, I. L. R. 6
Mad. 239, held that the suit was bad for misjoinder
of parties. The case was thereupon remanded for
an amendment of the plaint. On appeal to the
High Court : — Held, reversing the remand order .
that the objection for misjoinder as co-plaintiffs
not having been taken by the defendant in the
Court of first instance, the Appellate Court ought
not, under s. 34 of the Code of Civil Procedure
(Act XIV of 1882), to have allowed the objection
Held, also, that, as plaintiff No. 2 admitted the
adoption of plaintiff No. 1, their claims were in no
way antagonistic. They were both jointly
interested in disproving defendant's title. They
could therefore sue jointly under s. 26 of the Code
of Civil Procedure. Lingammal v. Chinna, I. L. R.
6 Mad. 239, distinguished. Fakirapa v. RroRAVA
I. L. R. 16 Bom. 119

1804, s. S — Suit by ward of the Court of Wards-
Civil Procedure Code, 18S2, s. 464. The holder of
an impp^rtible zamindari, governed by the law of
primogeniture, having a son, executed a mining
I ease of part of the zamindari for a period of twenty
years, by which no benefit was to accrue to the
grantor unless mining operations were carried on
with success, and the commencement of mining
operations was left optional with the lessee. On the
death of the grantor, his minor son and successor,
by the Collector of the district as his next friend
(authorized in that behalf by the Court of Wards),
sued the assignee of the lessee to have the lease set
aside. The second plaintiff was the grantee from 1
the Court of Wards (acting on behalf of the minor j
zamindar) of certain mining rights on the same
land. Held, per Muttusami Ayyar and Wilkin-
son, JJ. (affirming the judgment of Parker, J.),
that the interests of the first and second plaint-
iffs not beins inconsistent with each other, the suit
was not bad for misjoinder. Beresforp ". Rama-
suBBA . . I. Ii. R. 13 Mad. 197

24. Civil Procedure

Code (Act XIV of 1882), ss. 26, 31, 34— Persons
jointly interested in a suit — Objection taken for
first time on appeal. The plaintiffs were the widow
and an alleged adopted son of one /, who was the
uncle of the defendant R. In execution of a decree
against R, the property in dispute was attached.
The plaintiffs intervened and objected to the attach-
ment on the ground that the property belonged to
/, and not to R, the judgment-debtor. This ob-
jection was disallowed. Thereupon the plaintiffs

25.

Civil Procedure

Code, 1SS2, s. 26 — Joinder of plaintiffs — Persons
jointly interested in a suit — Claims not antagonistic —
Cause of action, meaning of — Parties. The plaint-
iffs 1 to 4 were the daughter and daughter's sons
of one G. They alleged that G died, leaving an
infant son X, an infant daughter //, and a widow
C ; that the son died leaving C as heir, and that,
upon C's death, the sons of H became entitled to
the property of X, but that, should it appear that G
did not leave K as his heir, H would succeed to the
estate to G as next heir ; and that the plaintiffs
jointly granted a patni settlement of the property
to one B (plaintiff No. 5), but he was kept out of
possession by the defendant, who claimed it by pur-
chase from the representatives of P, brother of 0-
The plaintiffs 1 to 5 joined in bringing the suit,
which ^\as one for possession of the property upon
establishment of title either of plaintiff No. 1 or of
plaintiffs Nos. 2, 3 and 4. On the objection of the
defendant under s. 26 of the Code of Civil Procedure
that the suit was not maintainable for misjoinder of
plaintiffs -.—Held, that the expression ' ' cause of,
action" occurring in s. 26 of the Code is used, not,
in its comprehensive, but in its limited, sense, so aS;
to include the facts constituting the infringement of j
the right, but not necessarily also those constituting,
the right itself, so that the qualification implied in[
the words ' ' in respect of the same cause of action |
will be satisfied if the facts, which constitute the|
infringement of right of the several plaintiffs, are,
the same, though "the facts constituting the rights
upon which they base their claim to that relief, in
the alternative may not be the same ; and that, as
the plaintiffs in the case complained of the same
wroncjful act of the defendant constituting the in-
f ringemnet of their right, that was their cause ot
action, and as they all claimed the same rehet,

( 8313 )

DIGEST OF CASES.

( 8314 )

dlSJOIlfDER— confc/.

2. MISJOINDER OF PARTIES— con^d.

lamely, possession, and further as they did not ad-
•ance any antagonistic claim, such a case came with-
Q s. 26 of the Code, and was not bad for misjoinder
,f plaintifl's. Lingammal v. Chinna Venkatammal,
■ L It. 6 Mad. 239; Nusserumiji Merwanji
Monday v. Gordon, I. L. R. 6 Bom. 266, dissented
rem. Fah-irapa v. Rudrapa, I. L. B. 16 Bom.
'19 followed. Haramoni Dassee v. Haiu Churx
HowDHRY . . I. L. B. 22 Calc 833

Oft — Practice — Proce-

urt— Parlies — Cause of action — Civil Procedure

:ode (Ad XIV of 1SS2), ss. 26, 2S, 57S—Mis-

ainder of causes of action— Assault by two persons

n the same occasion on two other persons — Joini

•aintiffs — Joint difendants. Vlaintitfs I and 2

iuther and son) were assaulted by defendants 1 and

i at an interviev.' in the house of the defendants.

i)e{endant 1 struck the first plaintiti, and the

;econd defendant struck the second plaintiff. The

■kintifis thereupon jointly filed this suit agairst

.Qth the defendants to recover damages for assault.

I'he defendants objected that the suit was bad for

misjoinder of parlies and causes of action. The

ower Court disallowed the objection, and awarded

ihe plaintiff's claim. On appeal by the defendants :

i/f.W, that the plaintiffs could not join in one suit

ior damages. They had not the same cause of ac-

lion, and therefore s. 2r. of the Civil Procedure Code

•XIV of 18S?) did not permit them to be joined.

\leld, also, that, although the defendants had not

eally been prejudiced by the misjoinder, it was im-

Itossible to hold that the case fell within s. 578 of

Ihe Civil Procedure Code (XIV of 1882). That

jection only applies to mistakes and irregularities

lubsequentiy committed in a suit which has been

jistituted in such a way as to give the Court juris-

liction to try it. The '^suit must first be instituted

\\ the manner allowed by law. But the law, as it

jtands at present, does not authorize a suit, which is

eally two separate suits in which separate plaintiffs

re concerned, to be instituted, nor dees it give the

'ourt jurisdiction to entertain a suit thus instituted.

IM, also, that the defendants could be sued to-

ether under s. 28 of the Civil Procedure Code

XIV of 1882), as they were acting in concert. If

<T0 persons combine to attack a third person, the

liter can join them as defendants in a suit for

amases. Varajlal Bhaishankar v. Ramdat

[AEiKRisnxA (1901) . I. li. B. 26 Bom. 259

27.

Civil Procedure

'ode [Act XIY of 18S2), s. 26— Joinder of plaintiffs
-Right claimed in the alternative. The widow
nd the adopted son of a deceased person joined, as
laintiffs. in a suit to recover money payable by the
efendants to the deceased. The money was un-
oubtedly due to one or other of them, and they
■ e agreed that either should take it. The widow
• ■d"as plaintiff because the right of the other
Lintiff to sue as adopted son was questioned.
IfcW, that the suit was not bad for misjoinder of
llaintiffs. Fakirapa v. Rudrapa, I. L. R. 16 Bom.

MISJOINDER— core^c/.

2. MISJOINDER OF PARTIES— co/ifcf.

119, followed. Lingammal v. Chinna V enkatammal ^

I. L. R. 6 Mad. 239, explained. Pinapati

Mrutvcmjaya r. Pinapati Jan'akammv (Kh>3)

I. L. R. 26 Mad. 647

28.

Xo adverse in-

terest as between the parties — Limitation Act {XV of
1S77), Sch. II, Art. 119— Adoption— .'iu it to de-
clare validity of adoption — Interference with adopted
son, nature of. Plaintiff 1, the daughter of Ningan-
gavda and plaintiff 2, the adopted son of
Ningangavda, together brought a suit against
the defendants to recover possession of Ningan-
gavda's property. The right alleged in plaintiff

1 was that she had been living with plaintiff

2 in the house of which possession had been
given to the first defendant under a decree of
the Mamlatdar. Tlie plaint contained no aver-
ment asking for relief in favour of plaintiff 1 in
the event of plaintiff 2's adoption being found not
proved. On an objection havini.' been raised as to
misjoinder of parties : Held, that the suit was not
bad for misjoinder of parties, since plaintiff 1. be-
yond alleging in the plaint that she was Ningan-
gavda's daughter, d'd not set up her right to recover
the property as Ningangavda 's daughter, but
claimed it with plaintiff 2, on the ground that the
latter was Ningangavda's son, and that she lived
with him. Fakirapa v. Rudrapa, I. L. R. 16 Bom.
119, followed, and Lingammal v. Chinna, I. L. R.
6 Mad. 239, distinguished. Art. 119 of Sch. II of
the Limitation Act (XV of 1877) applies to a suit^
' ' to obtain a declaration that an adoption is valid
and there are no words in it makinn it applicable
to a suit for a declaration that an alleged adoption
did take place. The article is therefor? to be ap-
plied only where the question is not as t<i the
factum, but the validity of an adoption. The in-
terference mentioned in the article as a condition of
its application so as to bar the plaintiffs' right al-
toaether is obviously an interference which must
amount to an absolute denial of tlic status of adop-
tion held bv a plaintifi and an uncontlitional ex-
clusion of him from the enjoyment of his richts in
virtue of that status. The article can have no
application to a case where the facts suatest that
the interference, such as it was, was intended to
have no greater effect than that of postponing the
riMit of the adopted son to succeed as heir to the
propertv of his adoptive fathon NJ^:«'^^^a ';,
RAMApfA(1904) . . I. L. B. 28 Bom. 94

29, .^ Xo misjoindfr

where one' relief merely ancillary— Laftdlord and
tenant— Rights and liabilities of joint lessors attd
lessees tvho are tennnts-in-common — Transfer of
Propert,, Act {IV of 1882), ss. 37'ayul 109 A suit
is bad for misjoinder, where there is a joinder of two
causes of action, in each of which all the defendant*
are not interested. Where, however, there is really
only one cause of action auainst some defendants
and the relief claimed a-jainst the other defendants
is onlv ancillarv to the relief to be given to the plaint,
ifi in respect of such cause of action, the suit is not

( 8315 )

DIGEST OF CASES.

( 831G )

MIS JOINDE R—contd.

2. MISJOINDER OF PARTIES— co;icZci.

bad for misjoinder. Saminada Pillai v. Stcbba
Reddiar, I. L. R. 1 Mad. 333, distinguished. Per
Sir S. Subrahmaxia Ayyar, Offg. C.J. — A tenant
in common may have ejectment to the extent of his
interest, on proper notice to quit ; and the inclusion
in such a suit of the other co-sharers as defendants
is merely the inclusion of persons properly parties
to the proceeding and not of litigants against whom
a separate claim, having no connection v/ith the
ejectment, is made. Per Sankaram Nair, J. —
The distinction between the law in England and
India as to the rights and liabilities of joint lessors
and lessees discussed and explained ; as also the
rights of lessors, who are tenauts-in-common. Case
law, English and Indian, on the subject, considered.
Where the relation is created by contract with
several joint landlords, according to the English
cases, such relation subsists only so long as all of
them wish it to continue, while according to the
Indian cases it subsists until all of them agree to
put an end to it ; and such a contract cannot, in the
absence of special circumstances, be put an end to
by any oae of them, if they continue to hold as
joint tenants. This principle, however, will not apply
when the suit is for ejectment and partition and
all the co-owners are made parties. The principle
embodied in ss. o7 and 109 of the Transfer of Pro-
perty Act ought to be apjjlied in such cases, though
they are not expressly declared applicable. When
the lessor recognizes the right of another in the
premises demised, all the obligations of the lessee as
to payment of rent and surrender of possession,
must, if such obligations be severable, and the lessee
will not be prejudiced by such severance, be per-
formed by the lessee between the lessor and such
other, in such proportions as may be settled by all
the parties concerned, including the lessee. If the
matter has to be decided by suit, the lessor, lessee
and such other person will be necessary parties.
Simhadri Appa Rao v. Prattipatti Ramayya
(1905) , . . I. L. R. 29 Mad. 29

3. MISJOINDER OF PARTIES AND CAUSES
OF ACTION.
See Appeal— Orders— Order reject-
ing A Plaint . 6 C. W. N. 585

See Multifariousness.

I. L. E. 29 Calc. 257

1, ■ Misjoinder — Suit

for libel by several persons jointly — Misjoinder of
plaintiffs and causes of action — Plaint, amendment
of — Election of plaintiff — Civil Procedure Code {Act
XIV of 18S2), ss. 26 and 53. Where six members
of the Calcutta Police Force jointly sued the editor
and proprietor of a newspaper for damages in res-
pect of a libel alleged to contain reflections upon
their conduct in a criminal case : — Held, that there
was not one and the same cause of action appertain-
ing to all the plaintiffs, though the injury was
caused by one act of the defendant, but that each
plaiatiii had a separate cause of action in respect of

MISJOrN"DER— conW.

3. MISJOINDER OF PARTIES AND CAUSES

OF ACTION— co»W.
his own reputation ; and that having regard to s. 2')
Civil Procedure Code, there had been a misjoinder
of plaintiffs and causes of action, and that the suit
as framed could not proceed. Held, further, that
there was nothing in the Civil Procedure Code of
Rules of the Court to necessitate a dismissal of the
suit : that the plaintiffs might be put to their elect.ior
which one of them should proceed with the suit :
and that after such election the plaint might be
amended by striking out the other plaintiffs and
making other consequential alterations. Haramon.
Dassi V. Harichurn Chowdhry, I. L. R. 22 Calc
833, referred to. Booth v. Briscoe, L. R. 2 Q. B. D.
496, distinguished. Smurthwaite v. Hannay, \189i'\
A. C. 494, P. cfc 0. Co. V. Tsune Kijima, [im
A. C. 661, Ali Serang v. Beadon, I. L. R. 11 Calc
524, Varajlal Bhaishanker v. Ramdat Harikrishna,
I. L. R. 26 Bom. 259, and Sandes v. WildsmilJi.
[1893] 1 Q. B. 771, followed. Aldrtdge v. Baerot^
(1907) . . . I. L. R. 34 Calc. 662

2. Civil Procedun

Code, s. 31 — Misjoinder of defendants and causes oj
action — Suit by transferee from heir of deceased-
Mahomedan against another heir and transferees from
such other heir. A plaintiff came into Court
claiming a portion of the inheritance of a deceased
Mahomedan, on the allegation that he had, by two
separate sale deeds of different dates, purchased the
property from two of the heirs of the deceased, and
that the said property was withheld from him by
another of the heirs of the deceased, who was in
possession of some of it, and by certain transfereer
of other portions from the said heir. Both th(
remaining heir and the transferees from him wen
made defendants. Held, that there was no mis
joinder of parties or causes of action in such a suit..
Indar Kuar v. Gur Prasad, I. L. R. 11 All 33
followed. Mazhar Ali Khan v. S vjjad Hus.\i>
Khan (1902) . . I. L. R. 24 AU. 356

3. ■ Misjoinder c

parties and causes of action—" In respect of thi
same matter," meaning of — Practice. The plaintif]
sued two sets of defendants to recover from eithe:[
the one or the other a sum of money for the rent o!
his godown. The plaintiff agreed to let a godowi!
to defendants 1—6 from 1st May 1900. At th<'
date of the agreement the godown was in the poSi
session of Messrs. N and Co. Defendants 1 — 'i
alleged that they did not get possession of the pre,
mises in terms of this agreement ; that only on|
compartment out of three was given to them on th'i
22nd May ; that they did not get possession of thii
other two compartments and in consequence the^i
had to hire other premises. Messrs. N and Co|
plead that there was an oral agreement with th
plaintiff that they should occupy the godown til
the end of May 1906 ; that they gave up possessioi
of one compartment of the godown before tbt
22nd May 1906, and on the 22nd May they giv
up possession of the remaining portion to the plaint
iff and the first set of defendants. The defendant

( 8317 )

DIGEST OF CASES.

( 8318 )

IS JOINDER— ooncR I

MISJOINDER OF PARTIES AND CAUSES

OF ACTION— coHcM.
1 pleaded that the suit as framed was bad by
ason of misjoinder of parties and of causes of
tion Held, disallowing the objection, that the
lit was properly constituted. The most convenient
,iV to try all 'the questions arising between the
Idntiff and the defendants and the two sets of
fendants int^.r se would be by one suit where all
> three parties are before the Court as parties,
le subject-matter in respect of which the plaintiff
I'ks relief is the rent of his godown. It is the same
litter as regards both sets of defendants, and both
:s of defendants are interested in the adjudica-
Im of the questions involved in the suit. The
'•leral principle governing the joinder of defend-
i.s would seem to be that there must be a cause
{ action in which all the defendants are more or
\:s interested, although the relief against them
iiy vary, but that separate causes of action against
imrate" defendants quite unconnected and not
•rolving any common question of law or fact
nnot safelv be joined in one action. The object
s. 28 seems to be to avoid multiplicity of suits if it
laid be done without embarrassment to any of the
'fendants. Madan Mohun Lai v. Holloway,
\ L. R. 12 Calc. 555, followed ; Sadler v. Great
' \cstern Railway Company, [1S96] A. C. 450,
;tinguished. Mowji Monji v. Kuver.ti Naxajt
')07) . . . I. L. R. 31 Bom. 516

ISJOINDER OF CAUSES OF AC-
TION.

See Misjoinder.

ISJOINDER OF CHARGES.

See Charges . . 13 C. W. N. 804

See .Criminal Pkocedtjre Code (V of
1898), ss. 225—237.

I. L. R. 33 Bom. 77

See Criminal Procedure Code (Act V
OF 1898), ss. 234, 23.5.

I. L. R. 30 All. 351

13 C. W. N. 1089

See Criminal Procedure Code. I'^nS.

ss. 233, 239 . 13 C. W. N. 1113

See Joinder of Charges.

i See Sanction for prosecution.

I. L. R. 36 Calc. 808

L. Distinct offences

iiljerent dates during the same trial — Presidency
agistrates — Refusal to take oath or answer questions
Criminal Procedure Code {Act V of 1S9S), ss. 233,
i, 235, 482— Penal Code (Act XLV of 1860),
178 and 179. Where the accused was charged
der two heads firxt, with offences under s. 178 of
e Penal Code committed on the 26th and the 29th
|igust respectively ; and, secondly, with offences
ider s. 179 of the Penal Code committed on the
ove dates during the course of the same trial.
M, per Rampini, J., that the trial was under

j MISJOINDER OF. CHARGES-<oncW.

the special procedure i)r(n-ided for Presidency Magis-
trates ; that no charge sheet was required to be
drawn up ; that there was no trial in the sense of
an investigation of the facts ; that the petitioner
had been convicted only of three offences, two of
which were of the same kind, and that s. 234 of the
Criminal Procedure Code had not been contravened.
Subrahviania Ayyar v. Kiny-Empfror. I. L. R.
25 Mad. 61, distinguished. Held, furtlier. that a
Court acting under s. 482 of the Criminal Procedure
Code is not bound to take procc^'dings on the same
day, as it is when acting under s. 480. Per Shar-
FUDDiN, J., that the accused was not charged with,
nor tried at one and the same trial for more than
three offences of the same kind, and that s. 234 did
not, therefore, apply, but that the case fell within
s. 245, and that there was, therefore, no misjoinder
of charges. Bipin Chandra Pal >: EMPERftR
(1907) . . . I. li. R. 35 Calc. 161

2. — Misjoinder of

parties — Criminal Procedure Code {Act V of 1898),
s. 107 — Two opposing parlies proceeded against in
one proceeding — Misjoinder. The two opposing
parties in a dispute cannot be proceeded against
under s. 107, Code of Criminal Procedure, and bound
over to keep the peace in one proceedins. Praii
Krishna Shaha v. The^Emperor, 8 C. ]\\ X. 1\0,
referred to and considered. Kamal Narain
Chowdhury r. Emperor (1900)

11 C. W. N. 472

MISJOINDER OF PARTIES.

See Misjoinder.

MISPRISION OF TREASON.

Stc Waging War aga

T THE ()VV.ES.

7 B. L. R. 63

MISREPRESENTATION.

See Administration Bond

I. li. R. 33 Calc. 713

^ee CH.iRTER-PARTY.

I. L. R. 14 Bom. 241
I. Ij. R. 15 Bom. 389
See Contract — Alteration of Con-
tracts— Alter.\tion by the Coi-rt
(Inequitable Contracts).

I. li R. 17 Calc 291

13 B. L. R 34

I. L. R. 3 Bom. 242

L R. 16 I. A. 233

Sec Fraud— Effect or Fk wk.

1. L. R. 8 Calc. 118
I. L. R. 24 Calc. 533

See Right of Siit— MisKEn;KSENTATi..N.

I. L. R. 4 Bom. 465

2 N. W. 13

I. L. R. 24 Bom. 166

as to area of land sold —

See Vendor and Purshaseu— Fraid.
I. L. R. 18 All. 322

8319 )

DIGEST OF CASES.

( 8320 )

MISREPRESENT AT ION— condd.

. ^ by Court-auctioneer —

See Sale . I. L. R. 36 Calc. 323
by minor —

See Minor — Liability of Mixor on, ax

RlGHT TO ENFORCE, CONTRACTS.

I. L. R. 24 Calc. 265

1 C. "W. W. 453

I. li. R 25 Cale. 371 ; 616

2 C. W. W. 18 ; 201 ; 330

I. L. R. 26 Caie. 381

I. JL.R. 21 Bom. 198

MISTAKE.

See Administration 12 C. W. N. 481
See Administration Bond.

I. li. R. 33 Cale. 713

See Bengal Tenancy Act, s. 93.

8 C. W. N. 225
See Charter-Party.

I. L. R. 16 Bom. 561

See Civil Procedure Code, 1882.

8 C. W. N. 30

174

See Civil Procedure Code, 1882, s. 13,

Explanation II . I. L. R. 26 All. 61.

See Civil Procedure Code, 1882, s. 27

I. L. R. 33 Calc. 657

See Decree, Lis pendens.

I. L. R. 31 Calc. 745 ; 822

See Execution.

I. L. R. 35 Calc. 1047

See Hindu Law — Partition — Right to

Partition — Generally.

I. L. R. 21 Bom. 333
See Limitation Act (XIV of 18.59),

s. 1(12) . I. L. R. 26 AU. 4

See Power of Court.

12 C. W. IJ-. 1027

See Regulation III of 1877. s. 33.

I. L. R. 26 All 354

See Settlement — Construction.

I. L. R. 17 Bom. 407
See Special or Second Appeal— Other
Errors of Law or Procedure — Mis-
takes.
See .'^Itamp Act (I of 1879), s. 2(1

I. L. R. 31 Cale. 807
See Transfer of Property Act. ss. 41,
59. 60, 6.5, 82. 83. 88 to 91, 9fi to 100.
I. L. R. 26 All. 14, 25, 69, 72, 93,
185, 223, 291, 407, 464, 490
504, 559
^-ee Trust . I. L. R. 18 Bom. 551
See Wazib-ul-arz. I. L. R. 26 All. 337
— condition imposed by —
See Hindu Law — Adoption — Second,
Simultaneous, and Conditional Adop-
tions . I. Ij. R. 2 Bom. 377

MISTAKE— conirf.

— in filling up stamped paper—
See Stamp Act, s. 51.

I. li. R. 18 Mad. 1

— in name of party to contract.

See Contract — Bought and sold Not
I. L.R. 20 Calc. 8

— in statement of age —
See Insurance — Life Insurance.

I. Ij. R. 20 Bom.

land sold by —

See Limitation Act, Art. 12.

I. L. R. 20 Mad. 1

money paid by —

See Civil Procedure Code, 1882, s. 24.

Questions in Execution of Decri

I. li. R. 1 All. 3J

See Contract Act, s. 72.

See Jurisdiction of Civil Court— Re:'

and Revenue Suits.

I. li. R. 25 All. 5;

— of calculation —

See Civil Procedure Code, 1882, s. 344

Questions in Execution of Decre'

5 C. W. N. 65

— of Court—

See Mortg.age . 13 C. W. N. 3(

— of fact—

See Certificate of Administration

Cancelment or Recall of Cer:

ficate . I. Ii. R. 19 Bom. 8!,

See Contract Act, s. 23 — Illegal Co|

tracts — Generally.

I, L. R. 3 Calc. 6(
L. R. 5 I. A. ';
See Plaint — Amendment of Platxt.

I. Ii. R. 30 Calc. 6f

See Special or Second 'Appe.al—Groux

OF Appeal — Evidence, Mode of dea

iNG WITH . I. Ii. R. 15 Bom. 6";

See Waiver . 5 Mad. 437 ; 44

See Wrongful Restraint.

I. L. R. 24 Calc. 8i

— of law —

See Appeal to Privy Council— Pf..^
TicE AND Procedure — Miscellaneu
Cases . L. R. 30 I. A. i

See Estoppel— Estoppel by ConduI
L L. R. 19 Bom. Sl

See Limitation Act. 1877. s. 5.

I. Ii. R. 11 Cale. 7(|

I. L. R. 13 Calc. f)

I. Ii. R. 13 Mad. 26

I. Ii. R. 12 All. M

{ 8321 )

DIGEST OF CASES.

( 8322 )

MISTAKE— con<(i.

of law — concld.

See Limitation Act, 1877. s. 14.

I. L. R. 10 All. 587

I. L. R. 12 Bom. 320

I. L. R. 19 All. 348

3 C. W. W. 233

— of taxing officer —

.See Court Fees Act, 1870, is. 5.

I. L. R. 15 All. 117

— pottah granted by —

See Collector . I. L. R. 12 Mad. 404
- probate granted by —

See Proeate-

-TO WHOM GRANTED.

6 C. W. N. 787

rent paid by-

See Landlord and Tenant — Constitu-
tion OP Relation — Acknowledgment
OF Tenancy bv Payment of Rent.

I. L. R. 26 Bom. 410

suit brought under —

iSfee Limitation Act, 1877, s. 14 (1871),

(s. 15) . . I. L. R. 3 Calc. 817

I. L. R. 9 Calc. 255

L. R. 9 I. A. 82

Contract — Proposal

th unqualified assent — Mistake in expression —

mimonlmistake — Unilateral jnistake — Contracting

rty not able to read — Contract differing from that

eiended to he read. It is of the essence of a con-

;ict that there should be (expressly or by impli-

tion) a proposal to which an unqualified assent

9 been given : without such assent there is no

Qtract : the minds of the contracting parties are

t at one. Mistake in expression may be either

mmon or unilateral. Mistake in expression im-

es that the minds of the parties are not at one on

lit which is expressed ; but it does not follow that

•jevery case, where there in fact has been such mis-

'jie, there is no contract. Practical convenience

' tates that men should be held to the external

•spression of their intentions, unless this be out-

'iighed by other considerations : and to this legal

•set is given bj^ the law of evidence, which permits

<H proof at variance with documents only in cer-

.||a cases : in the rest the proof, if it be of mistake,

> lot received, so that the mistake does not come t<i

I'lt, and in a Court of law does not exist. The

' it, administering equitable principles, permits a

Ive to be proved, when it is common, that is,

' the expression of the contract is contrary to

t concurrent intention of all the parties. If such

a istake be established, then the Court can give the

rjef of rectification, but what is rectified is not the

8 sement, but the mistaken expression of it. The

eral rule is that the intention of contracting

ties is to be gathered from the words they have

1. Where the mistake is unilateral, it does not

narily aSect the rights, which are the legitimate

VOL. HI.

MISTAKE- conc.'cf.

consequence of the words, though it may affect the
remedy that will be awarded against the party in
error. But a «uistako known at the time to the
other party may bo proved and performance in ac-
cordance with the terms of the error will not be
compelled. A mistake even not known has legal
consequences, provided there can be restoration of
all parties concerned to their original position.
Where a contracting party, who cannot read, has a
written contract falsely read over to him and the
contract written dilTers from that presented to be
read, the signature on the document is of no force,
because he never intended to sign and therefore in
contemplation of law did not sign the document on
which the signature is. If a person executes a do-
cument knowing its contents, but misappreciates
its legal effect, he cannot deny its exeontion.
Daodu I'. BnANA(lOOI) I. L. R. 28 Bom. 420

MITAKSHARA.

See Hindp Law.

I. L. R. 33 Calc. 371 ; 507
I. L. R. 31 All. 454 ; 507 ; 599

.^'ee Hindu Law— Mitakshara.

Ch. I, ss. 6, 7 ; Ch. II, s. 9 ; Ch.

VI, s. 4—

See Hindu Law.

I. L. R. 32 Calc. 158 : 234

famiiy-

See Hindu Law — Alienation.

I. L. R. 34 Calc. 184

son, liability of—

See Hindu Law — .Toint Family — Debts .

I. L. R. 34 Calc. 642

I. L. R. 33 Bom. 39

Bahuaiui

gravt-

Attachment of Babuava property duriruf the life-
time of the judgment-debtor — Civd Procedure Code
[Act XI V of 1SS2), s. 280— Order of release, effect of.
The grantee of a Bahuana grant has the right to
alienate the property subject only to the contingent
interest of the grantor. Rameswar Singh v. Jiben-
der Singh, I. L. R. 32 Calc. 6S3, followed. Babuatia
grant of ancestral property by the owner of an im-
partible estate to enure for the berefit not only < f
ajunior member of the family but oi his direct male
line, does not lose its ancfstral character by tiic
grant. It does not become self-acquired property
in tlie hands of the direct male descendants of the
grantee. Maddun Oopal Thakoor v. Ram Buksh
Pandeg, 6 W. R. 71, referred to. An order for
release under s. 2S0 of the Civil Procedure Code
being only provisional and liable to be set aside by
a regular suit, lias not the effect of putting an end
to an attachment duly made. Banoviali v. Pro-
sunno Narain Chowdhnj, I. L. R. 23 Calc. <29,
referred to. Ram Chandra Marwaki ?•. MrD»ii-
WAK Singh (1006) , I. L. R. 33 Calc. 1158

12 I

( 8323^ )

DIGEST OF CASES.

( 8324 )

MITAKSHARA FAMILY.

See Civil Procedure Code (Act XIV
OF 1882), s. 961 I. L. R. 35 Calc. 561
Sec Decree . I. L. Rf 31 Calc. 822
See Hindu Law — Miiakshara.
See Hindu Law — Succession.

I. li. R. 31 Calc. 224
See Hindu Law — Survivorship.

I. L. R. 33 Calc. 676

MITAKSHARA SCHOOL.

See Hindu Law . . 8 C. W. N. 672
See Hindu Law — Mitakshara.

MOFUSSIL CIVIL COURT.

See Jurisdiction ;I. L. R. 31 Calc. 667

MOFUSSIL COURTS.

suit to set aside decree of, on

ground of fraud.

See High Court, Jurisdiction of —
Calcutta — Civil.

I. L. R. 30 Calc. 369

MOFUSSILCOURTS, POWER OF.

'■ Mofussil Courts have

no power to make orders in pfcnam against
persons not parties to a suit such as is possessed
by the Original Side of the High Court. Ram-

NIDHY KOONDOO V. OjOODHYARAM KhAN

11 B. L. R. Ap. 37

s. c. Ramnidhee Koondoo v. Ajoodhyaram
Khan 20 W. R. 123

MOHUNT.

See Hindu Law — Endowment.
See Hindu Law — Inheritance — Divest -
iNG of, Exclusion from, and For-
feiture OF, Inheritance — Marriage.
I. L. R. 5 Boin.^682

See Hindu Law — Inheritance — Reli-
gious Persons, etc.

I. L. R. 1 AH. 539

5 W. R. Mis. 57

3 Agra 295

I. L. R. 9 All. 1

L. R. 13 I. A. 100

7 C. W. N. 145

See Onus of Proof — Custom.

I. L. R. 5 Bom. 682

See Religious Endowments Act, s. 5.

8 C. W. K". 404

personal estate of —

See Certificate of Administration —

Issue of, and Right to. Certificate.

I. L. R. 4 Calc. 954

power of, to grant perpetual

lease —

See Hindu Law — Endowment.

I: L. R. 36 Calc. 1003

MOHURBHUNJ.

See Tributary Mahals of Orissa.
MOKURARI INTEREST.

See Bengal Tenancy Act (\'iri f
1885), s. 74. . 12 C. W. N. e

See Debutter . I. L. R. 33 Calc. ]
See Merger . I. L. R. 33 Calc. 1!2
LL. R. 36 Calc. {2
See MoKURARi Lease.

MOKURARI ISTEMRARI TENURE.

See Grant — Construction of Grant
I. L. R. 1 Calc. 11
I. L. R. 30 Calc.O
See Lease — Construction.

Effect on, of subsequent fs .-

ing lease. — A mokurari holding cannot be >;-
tinguished by a subsequent farming lease. Dh m
Roy v. Muddoosoodun Prosad Chowdhry

W. R. 1864, Act X, .7

MOKURARI LEASE.

See Debutter. . I. L. R. 33 Calc. 11

See DiGWARi Tenure.

I. L. R. 34 Calc. 53

See Lease. - . I. L. R. 36 Calc. 75

See Mineral Rights.

I. L. R. 34 Calc. 58
See MoKURABi Interest.
See Sale for Arrears of Revhw;—
Incumbrances — Act XI op 1859.

I. L. R. 30 Calc. )71

Mokurari lease— ^.

— A perpetual mokurari lease implie-i that .he
tenancy is permanent, heritable and transfeble
and that the rent is fixed in perpetuity. Maha nd
Sahai v. Sayedunissa (1907) . 12 C. W. N.54

MONEY."

See Will

. L L. R. 30 A1L|55

MONEY-DECREE. I

See Attachment — Subjects of At'|ch-
ment — Decrees.

L L. R. 27 Bom|i56l
6 C. W. f. 5

See Bengal Tenancy Act, s. 188.
6 C. W. W

See Civil Procedure Code, 1882, s;
282,287 . . I. L. R. 33 Bon J"

See Equity op Redemption. '

See Execution of Decree — ExEclios
against Representatives.

I, L. R. 30 Calc^el

.S'ee Mortgage— Sale of Mort(!»ed

Property — Money-decrees on P*'*

gages.

See Registration Act (III of 'jN

-i. s. 28 . . L L. R. 29 Calc3o4

( 8325

DIGEST OF OASES.

8326 )

VIONEY-DECREE— coTJcW.

.<?ec Transfer of Property Act. s. 99.

I. L. R. 30 Calc. 463

See S.ALE IN ExEcrTiox of Decree.

I. L. R. 35 Calc. 61
13 C. W. JSr. 270

dONEY HAD AND RECEIVED.

^''ee Certificate of Administration —
Right to sue or execute Decree
WITHOUT Certificate.

I. L. R. 15 Bom. 580

See Limitation Act, 1877, Arts. 62 and
97.

See Limitation Act, 1877, Art. 97.

I. L. R. 19 Calc. 123

L. R. 18 I. A. 158

I. L. R. 18 Mad. 173

See Limitation Act, 1877. Art. 120.

I. L. R. 15 Mad. 382
I. L. R. 18 All. 430
See Small Cause Court, Mofussil —
Jurisdiction — Money Had and Re-
ceived.

1 Money paid under compul-

■ ,on of law — Payment into Court hi/ mortgagee of

joouni of decree to prevent sale of m.ortgaged pro-

ifty — Voluntary ■payment. The defendant sued

\q J H P ia. the Small Cause Court and obtained

decree, in execution of which he caused a steamer

I be attached as being the property of J H P.

lereupon the plaintiSs, alleging themselves to be

possession of the steamer as mortgagees from

H P, in order to obtain its release, paid the

lount of the decree against J H P into Court,

d the steamer was given up. Subsequently an

ier was made by the Court, on the application of

e plaintiffs, that the money should remain in Court

nding the result of a suit to be brought by them

i' its recovery. They accordingly brought a suit

hinst the defendant. The Judge of the .Small

•|Use Court found that J H P had no attachable

'TAst in the steamer, and that the plaintitfs had

the amount of the decree on compulsion.

. that the plaintiffs could maintain the suit,

'!gh the defendant had not actually received

mount c,f the decree. Moran r. Dewan Ali

^»i .... 8B. L. R. 418

i^- — ;- Monej'^ paid under

^npulsion of law cannot be recovered back as
■ney had and received. Jcgoobundhoo CiHose

'WDHRY MUMTAZ HOSSEIN W. R. 1864, 205

— ; Voluntary payment — Pay-

"ithoiit authority. If A without B's author-

' iv B's creditor, he cannot recover back from

reditor the amount so paid. Mool Chund

'j^JOODHYA Pershad . . 3 N. W. 162

]': Suit by suh-les.iee

must lessor for malikana tvhich he teas com-
i\kd to pay. Where a sub-lessee pays malikana
^ich was not specified in the sub-lease as being a

MONEY HAD AND RECEIVED— coricW.

charge on the property, and as to which ho was
ignorant : — Held, that he was equitably entitled to
recover over from his lessor. Tarsanah r. Kad-

HAREY LaLL 5 N. W. 1

5. _ — Proceeds of joint immove"

able property after satisfaction of decree
by sale of tenure, suit for. The plaintiff and
the defendant were co-owners of a certain talukh.
The zamindar brought a suit for arrears of rent
of the talukh against the defendant, obtained a
decree, and in execution of that decree sold the
tenure. The proceeds of the sale, after satisfying
the zamindar 's decree, were taken by the defend-
ant ; and the plaintiff instituted the present suit
to recover an eight annas share thereof. Held,
that the plaintiff was entitled to recover. Ram
CooMAR Sen v. Ram Comul Sen

I. L. R. 10 Calc. 388

6. Money paid as price of

goods, suit to vecover—Consideratiotu failure
of. Money paid as the price of goods to be
delivered hereafter is money received for the use of
the seller, and it is only upon failure of considera-
tion that the money so paid becomes money
received for the use of the buver. Atul Kristo
Bose v. Lyon & Co. . I.'L. R. 14 Calc. 457

Contract Act (IX

of 1872), s. 72 — Bight to recover money had and
received to plaintiff ''s use, unaffected by s. 7.'.
Defendant had sought to exercise, as against plaint-
iff, the special powers conferred upon landholders
by s. 38 of the Rent Recovery Act. In fact, the
relations between defendant and plaintiff were not
such as entitled defendant to exercise those powers.
Plaintiff, in order to aver the injury which we would
have sustained if his interest in the land had been
sold, paid the amount demanded by the defendant,
and now sued to recover from the defendant the sum
so paid. Held, that plaintiff was entitled to recover
the money paid by him as money had and received
by defendant to the use of the plaintiff. S. 72 of
the Contract Act in no way affects the principle of
law that where a defendant has received money,
which in justice and equity belongs to a plaintiff,
under circumstances which render a receipt of it a
receipt by the defendant t.. the use of the plaiiitiff,
the plaintiff is entitled to recover. Jugdco Narain
Singh v. Raja Slivjh, I. L. R. l'> Calc. 65<^, ap-
proved. Narayanasami Reddi f. 0.<<rRr Reddi
(1901) . . . I. li. R. 25 MadL 548

MONEY LENT.

See Hlsdu
Lent

Law — Contract — Mon ev

. 5 B. L. R. 396

7 B. L. R. 489

See Ldutation Act. 1877. Sch. II. Akt.

57 . . I. K R. 24 AU. 251

See Limitation Act. Art. tiO.

L L. R. 16 Calc. 25

L L. E. 18 Mad. 390

I. L. R. 19 Bom. 352 ; 775

12 I 2

( 8327 )

DIGEST OF CASES.

( 8328 )

MONEY 'L'E'NT—concld.

partner cannot sue firm for —

See Partnekship — Suits respecting

I. L. R. 25 Bom. 606

Partnerships.

suit for —

See Right of Scit— Money Lent.

I. li. R. 23 Calc. 851

MONEY-ORDER.

See Postal Monev-order.

MONEY PAID.

See Contribution, Suit for— Payment
OF Joint Debt by one Debtor.

See Limitation Act, 1877, Art. 61.

See Money paid for benefit of another.
by mistake —

See Contract Act, s. 72.

by trespasser in possession—

See Wrongful Possession.

I. L. R. 4 Calc. 566

in excess satisfaction of decree —

See Civil Procedure Code, 3 882, s. 244

— Questions in Execution of Decree.

I. L. R. 1 All. 388

6 Mad. 304

17 W. R. 14

15 W. R. 160

19 W. R. 413

4 C. L. R. 577

I. L. R. 22 All. 79

in execution of decree, suit to

recover —

See Civil Procedure Code, 1882, s. 244 —
Questions in Execution of Decree.

See Civil Procedure Code, 1882, s.^. 257,
258.

to prevent sale —

See Right to Suit — Sale for Arrears
OF Revenue . I. L, R, 13 All, 195

See Sale for Arrears of Rent — De-
posit to STAY" Sale.

See Sale for Arrears of Revenue —
Deposit to stay Sale.

1. Voluntary payment - Compul-
sory payment of revenue— Previous request. L,
having been compelled by a revenue officer to pay
revenue payable by P, sued P to recover the amount
as having been paid on his account. His plaint dis-
closed no cause of action against P, triable in a Civil
Court, for he did not pleaded that the payment v/as
made, at the request, expressed or implied, of D.
There being no such request on the part of P to sup-
port the action, it m as held that L could not recover.
Gattu Lall v. Luchman Parshad . 7 N. W. 155

MONEY TAlD—contd.

2. Penal assessr.il

of revenue paid under protest — Proof of Hid
coercion. In order to enable one having pd
money under protest to recover money so paidt
is necessary for him to show that the paym t
was made under illegal coercion. Mutha-ji
Chftti v. Secretary of State for India

I. L. R. 22Mad.]D

3. Payment to nj

sale. Plaintiff's ancestor had purchased in ext.-

tion the right, title, and interest of B, one of the -

fendants. Antecedently to that sale the right, ti-,

and interest of li, and tho.se of two others, had ba

j attached in execution of a decree against D {»

I uncle of E and father of the two others), and a te

' having been ordered after purchase by plaintig.

ancestor, the latter, whose objections did not a- 1,

I finally prevented the sale by paying in the amo t

due. Held, that, as 7? was not legally bound to -jr

the amount due under the decree against D, and e

I payment was in every sense voluntary, plainS

I could not recover from her and the sons of D. C'.-

lector of Shahabad v. Ram Buddun Singh

10 W. R. 4)

4. Money paido

I protect property afterwards shown to have In

wrongly attached in execution of decree. Wte
I the plaintiff was obliged to bring a suit and carr t
j up to the Appellate Court to have his title declarec o
I his own property which the defendant had seiz.,

and attempted to sell in oxecution of a dace

against another person, the defendant was heldo
I have no right either in law or equity to retain mo y

which the plaintiff had been compelled to pay hie o
j save the property from sale. Futtick Chtjnib
I Banef^iee v. Golam Ali Chowdhry
j 10 W. R. 43

i MONEY PAID FOR BENEFIT <?
ANOTHER.

See IMoNEY paid.

See Voluntary Payment.

I. L R. 22 Calc. 8

1. Payment of revenue by e

claimant of an estate while temporally
holding it under a decree in his favcr,
afterwards reversed — Liability of oivntr >'
money sc paid for his benefit. Where a claim;',
having obtained possession of an estate undt >
decree in good faith, has paid the revenue and ce;i
{in default of which payment the estate v/onld hl'3
been sold), although the decree may have ijn
reversed afterwards, and he may have been depriJ
of possession, he nevertheless is entitled to be."-
paid the amount by his opponent, who benefitsfV
it, provided that he has not realized, or fa;^J
through any fault of his own to obtain, enough ;;t
of the rents and profits during his possessiorfJ
cover this expenditure. The plaintiff had '
revenue and cesses in such a case. Held. that. <
accounting for mesne profits, and all that L
received, or might have received, from the esi
he should recover from the defendants, in wF
favour the decree was ultimately made, the diir-

( 8329 )

DIGEST OF CASES.

( 8330 )

ONEY PAID rOR BENEFIT OF
"aKOTHER— co?i.f?'/.

ce between his, the plaintiff "s, payments and

feipts. Dakhina Mohan Roy v. Saroda Mohan

,v . . . . I. L. R. 21 Calc. 142

L. R. 20 I. A. 160

Revenue dxie on account of

indu widow's estate paid by lambardar
Remedy of lambardar ajter death of widow for re-
;ery of money so -paid — Decree against rejnesenta-
i'e of Hindu widow. G I), a, separated sonless
ndu, died possessed of certain zamindari property
■ lich passed to his widow J. During J 's posses-
•!n, the lambardar of the village paid certain Gov-
iment revenue due b3'^ J in respect of the property
it by G D. J died, and the property in question
•i'sed to S N as heir to G D. On suit by the lara-
'dar to recover from S N the money paid on bc-
UotJ : — Held, tha,t the only decree to which
!i) lambardar M-as entitled was a decree against
I'V as J's representative payable out of the assets,
iltnv, which had corue to S N from J. Seth Chitor
.jifv. Shib Lai, I. L. 7?. U All. 2:3, referred to.
I'iamanaxd v. IIar Lal . I. L. R. 18 All. 471

:ONEY PAID UNDER PROCESS OF'
DECREE.

See Costs — Ijjtekest on Costs.

I. L. R. 4 Calc. 229
20 W.R.49

See Money Had and Received.

W. R. 1864, 205

Reversal or supersession of

Cjjree. — Money recovered under a decree or judg-
nlit cannot be rec ,vered back in a fresh suit or
alon, whilst the decree or judgment under which it
^! recovered remains in force. But this rule of law
i|s upon the ground that the original decree or
jlgment must be taken to be subsisting and valid,
W;il it has been reversed or superseded by some ul-
t' or proceeding. If it has been so reversed or
B'lerseded, the money recovered under it ought to
bi-efunded, and is recoverable either by suTumary
Ppess or by a new suit. Doorga Pershad Roy
CiiwDRY V. Tara Pershad Roy Chowdhrv.
S MA Pershad Roy Chowdhry v. Hurko Per-
^ '.' Roy Chowdhry . . 3 W. R. P. C. 11
10 Moo. I. A. 203
rest cannot be recovered on it. Ashri'f-
\ Begum v. Khanum Jaxu . 6 W. R. 285

Suit to recover

,v paid under decree— Act XXI 11 of 1861,
*-|i. — In a suit by the present defendant against
W| present plaintiff for enhancement of rent, the
Cjrt of first instance and the High Court made
dvees for enhanced rent. The Privy Council, in
tlvear 187.'{, reversed those decrees, and held that
"rent could not be enhanced. Before the date
oljlie Privy Council judgment the present defend-
•ijobtained several other judgments for enhanced
t against the present plaintiff. No application
'j made by him for review of those judgments
"\ in 1875 he brought this Kuit to recover the

MONEY PAID UNDER PROCESS OF
DECREE— cowW.

difference between the amount of enhanced rent
recovered and the fixed rent which he was bound
to pay. Held by Macpherson, Markby, and
AiNSLiE, JJ., following S/iuma Pershad Hoy
C/iowdhry v. Hurro Pershad Roy Choudhry, 10
Moo. 1. A. 203, that the decrees for enhanced
rent were superseded, and that such a suit as the
present one would lie. Held by Garth, C.J., and
Jackson, t/., distinguishing Shamu Perskad's Case,
that these decrees were net superseded : that the
principle of Harriot v. Hampton, J Smith's L. d
6th Ed. 375, applied, and that the plaintiff was
not entitled to recover. Jogesh Chunder Dttt v.
Kali Churn Dutt

I. L. R. 3 Calc. 30 : 1 C. L. R. 5

3. Supersession of decree— .S'»/<

for money paid under conditional decree. A ob-
tained against B a decree for arrears of rent at
enhanced rates for the >ear 1871. Pending an
appeal from this decree, .4 obtained a second decree
against B for arrears of rent at enhanced rates for
the succeeding year. This decree, however, made
the payment of so nrnch of the rent calculated at
enhanced rates contingent in the event of the
Appellate Court aflirming the decree in the former
suit. A executed this last decree, and obtained
payment of the rent at enhanced rates. On the
reversal of the decision in the former case by the
I Appellate Court, B applied for a refund of so much
of the money paid to A as represented the rent
calculated at enhanced rates. Held, that the por-
tion of the second deci-ee, relating to enhanced rent,
being merely conditional, was virtually superseded
by the order made by the Appellate Court in the
previous suit, and that such moneys were thcrefrire
recoverable. JIohamed Elahee Bcksh v. K\\.< y
Mohun Mookhopadhya

I. L. R. 5 Calc. 589 : 5 C. L. R. 519

4. Suit to recover

compensation in respect of properly sold under a
decree — Decree not reversed or superseded. A
zamindar applied to a revenue officer to commute
the rent hitherto paid in kind by certain of his ton-
ants to a fixed money rent to be paid in future.
The Assistant Collector made the onler asked for
and fixed the money rent to be paid in future.
After that order had been made, the zamindar
brought a suit for arrears of rent against the tenants
in a Court of Revenue and obtained a decree for
rent at the rate which had been fixed by the on'er
of the Assistant Collector. Against thi« decree the
tenants did not appeal, and it became final. The
decree was put into execution : property of the
tenants was attached and sold, and the decree was
partially satisfied out of the sale-procee<ls. Sub-
sequently to the passing of the decree for rent, the
Board of Revenue set aside the onler of the Assistant
Collector commuting the rent in kind to a fixed
money rent. The tenants thereupon sued to re-
cover compensation on account of the sale of their
property under the decree for rent. Held, that the
suit would not lie, inasmuch as the decree for rent
under which the plaintiff's property was sold was

( 8331 )

DIGEST OF CASES.

( 8332 )

MONEY PAID UNDER PROCESS OP

DECREE— con<(?.

unreversed and not superseded by any competent
Court. MarriotY. Hampton, 2 Smith's L. C. 10th
Ed. 409 ; Shama Par shad Roy Choudhry v. Hurro
Farshad Boy Chowdhry, 10 Moo. LA. 203;
Jogesh Chunder Dutt v. Kali Churn Dutt, I. L. R.
3 Gale. 30 ; and Nilmoney Singh Deo v. Saroda
Parshad Moolcerjee, IS W. E. 43-1, referred to.
KisHEN Sahai v. Bakhtawar Singh

I. L. R. 20 All. 237

Decree subsequently found

to be barred — Suit to recover money paid to
save estate from sale under decree aftertvards held
to he barred — Jurisdiction of Civil Court. Ap-
plication having been made to a Deputy Collector
to execute a decree for rent, the judgment-debtor, in
order to save his tenure from sale, brought the
money into Court, and it v.as taken out by the
decree-holder. This was done while the question
was being litigated in the Civil Courts whether the
decree was not barred by limitation. The result
wa s that the decree was declared barred. Held, that
the judgment-debtor's only remedy was by a suit in
the Civil Court to get back the money. Ghannoo
Singh v. Ram Gobind Singh . 13 W. R. 231

6. Decree passed ultra vires

and subsecLuently reversed— *S'Mi< for money
paid under it. The assignee of a decree having
obtained execution of it in the Deputy Collector's
Court under cover of a declaratory and mandatory-
decree of the Civil Court, which latter decree was
set aside on appeal, a suit vi'as brought against the
assignee to recover the money which he had obtained
by means of the execution proceedings. Held, that
the judgment-debtor or his representative (the
plaintiff) had no title to recover the monej' unless
he could show that he had been in some way de-
frauded by the transaction ; the proceeding of the
Deputy Collector giving him no cause of action by
the mere fact of its having been ultra viret or not
done in full exercise of jiidicial discretion. Ram
Gobind Singh v. Gheenoo Singh 20 "W. R. 406

7. . Decree afterwards reversed

— Suit to recover money jmid binder it. Money
realized in execution of a decree may be recovered
by suit, if the decree is set aside as regards the party
seeking to recover. If such party was not a party
to the original decree and his name appeared there
owing only to misrepresentation, he is not restricted
to the Court executing the decree, but is at liberty
to seek his remedy in a separate suit.. Sheeo

COOMAREE DaBEE V. ShITARAM HaZRA

21 W. R. 346

Execution of de-

cree— Payment of decree amount by one defendant —
Reversal of decree on appeal by another defendant —
Right to refund — Civil Procedure Code, s. 583.
In a suit for rent, together with interest thereon,
brought by a mortgagee against a tenant in occupa-
tion of the mortgage premises, one claimining title
against the mortgagee v/as joined as second defend-
ant. The suit was dismissed in tbe Court of
first instance, but the Court of first appeal passed

MONEY PAID UNDER PROCESS 01

DECREE— cowcR

a decree as prayed in the plaint ; and in execr
tion the principal amount of the rent claimec
which had been paid into Court by the first defenc
ant with the request that it should be paid out t
the person entitled to it, was paid over to the plains
i£[. The first defendant preferred a second appej
against the decree, so far as it awarded interest an
costs : this second appeal was dismissed. The st
cond defendant, however, preferred against tb
entire decree a second appeal, which was sucr^essfu
that the High Court dismissed the suit throughou
On an application by the first defendant for refuu
of the money paid byjhim as stated .ibove : — Eel
that the applicant was not entitled to the refun
claimed. Kassim Said v. Luis

I. li. R. 17 Mad. 8

9. Voluntary payment— i/xeci

tor de son tort — Payment of debt due by deceasi
— Suit to recover amount paid from heir, 1
the widow of a deceased Hindu, sued to recover h
estate from F, his brother, who had taken possessic
thereof as heir. Pending this suit, a decree W!
obtained against V and K for payment of a debt di
by the deceased out of his estate. V paid the del
out of his own money. K having recovered tl
estate, V sued her to recover the money paid by hi
in satisfaction of the decree. Held. tha,t F w.
entitled to recover. Kanakajuma v. Venkataea
nam . . . . I. li. R. 7 Mad. 5£

10.

Attachment

property of third person — Payment into Court
amount of decree by owner of property in order
release property — Application in execution j
refund of inoney so paid. A certain box attachi
in execution of a decree against one Mathur, who
father, alleging that it was his property and n
Mathur 's, paid the bailiff the amount of the deer
in order to release it from attachment. He th'
applied to the Judge to have the money refunded
him. The Judge held the box to be his propert
and directed repayment. Held, that, in making t
order for repayment, the Judge acted without jurt
diction, there being no provision in the Civil Pij
cedure Code (Act XIV of 1882) under which it cov|
be made. The proper course was to have taki
steps under s. 278 of the Code to have the attac,
ment on the property raised. By paying t
amount of the decree into Court it became necessa
to file a suit for the recovery of the money so pa
Varajlal Motichand v. Kachia Garbad Khcsh
I. L. R. 22 Bom. 4

MONEY PAYABLE BY INSTA
MENTS.

See iNST.AiMENTS.

MONEY PAYABLE ON DEMAND.

-See Hindu Law— Contract— Mos'

Lent . . . 5 B. L. B. 3>

7 B. L. B. 4'

See Limitation Act, 1877, Sch. II, A •
73.

( 8333 )

DIGEST OF CASES.

( 8334 )

ONEY, SUIT FOR.

See Limitation Act, 1877, Art. 113.

I. L. E. 16 All. 3

See Res Judicata— Causes of Action.

I. L. R. 3 Calc. 23

See Res Judicata— Matters in Issue.

I. L. R. 20 Mad. 418

See Valuation of Suit— Suits.

I. L. R. 12 Bom. 675
I. li. R. 18 Bom. 696

ONOPOLY.

See Saltpetre

I. L. R. 36 Calc. 267

attempt to monopolise-

See Contract Act, s. 27.

13 C. W. ISr. 388

OOKTEAR.

See Criminal Procedure Code (Act V i

OF 1898), s. 4. . I. L. R. 30 All. 66
See Legal Practitioners.
See Legal Practitioners Act.
See Pleader.

/See Pleader — Authority of, to bind

Client . . . 7 C. W, N". 351

See Principal and Agent — Authority

of Agents . . . 14 W. R. 36

20 "W. R. 119

13 B. L. R. 177

I. L. R. 7 Calc. 245

and client —

See Privileged Communication.

1 B. L. R. A. Cr. 8

I. li. R. 25 Calc. 736

2 C. W. N. 484

■ — appointment and dismissal of —

^ee Devasthan Committee.

I. L. R. 30 Bom. 508

— dismissal of^

See Legal Practitioners Act, ss. 14

and 40 . . I. L. R. 15 Calc. 152

L. E. 14 I. A. 154

— functions of—

See Legal Practitioners Act, s. 32.

I. L. R. 14 Calc. 556

-1 giving commission to —

See Pleader — Removal, Suspension^
AND Dismissal . 11 B. L. R. 312

•\- power of. to present application

• jfor execution of decree.

See Limitation Act, 1S77, Art. 179 (1871,
Art. 167) — Joint Decrees— Joint De-
cree-Holders . I. Ij. R. 4 Calc. 605

|L. — Admission of mooktears —

:!««■ of High Court. The High Court would not
ierfere with Zillah Judges in the selection and
'mission of mooktears, under the 39th section of

MOOKTEAR— con/rf.

the Pleaders' Rules, 1866. In the watlrr of the
petition of Mahomed Hossein 5 W. R. Mis. 49

2. — liule -V.) of Rides

of High Court. The 39th of tho Rules for mook-
tears, issued by the Court in 1866, only required that
every person who had been practising as a mooktear
in the Criminal Courts should be at liberty to sati.sfy
the Judge that he was a person of good moral
character and qualified by his knowledge of law and
procedure before he couid be entitled to admission
under that rule. But it was not the int'-ntion of the
Court that parties should be subjected to regular
examinations, or that the duty imposed upon the
Judge should be delegated to the Magistrate. In
re GoLUCK Chunder Kur . 6 W. R. Mis. 29

3. ^- Grant of certifi-
cate— Limitation. There was no limitation of time
for the grant of a certificate by a Judge, under Rule
39 of the Rules made by the Court in 1866 for the
admission of mooktears. In rr Joakim

6 W. R. Mis. 120

4. Application for leave to

practise in Court in another district —
Omission to get certificate from first District Court
— Ground for refusal of leave to practise. Where
a mooktear who had been practising in Backergunge
applied to the Judge of the 24-Pergunnahs for a
renewal of his certificate, and the Judge of the latter
district refused to grant him a certificate to practise
in his district without a certificate from the author-
ities of Backergunge of the truth of his representa-
tions, the High Court declined to interfere, thinking
the refusal reasonable, but observed that, as the
application had been made ■within three years from
the date of his certificate, if the applicant procured
the certificate required bj- the Juilgc within six weeks
from this date, the application ought to be treated as
made within time. I7i t/,e ihu'tT of Kai.ke Churn
Banerjee . . . . 18 W. R. 925

5. Appearance of mooktear —

Right to appear — Crimina' Procedure Code {Act
X of 1S7'^), s. 'JiS — Appeal in criminal case. An
appellant in a criminal case has a right to appear and
be heard by a mooktear. Empress v. Shivram
Gundo . . . . I. L. R. 6 Bom. 14

See In re Stjbba Aitala I. L. R. 1 Mad. 304

6. Civil Procedure

Code, 1SS2, s. 37— Rule 1 '• of Rules of High Court,
Calcutta— Court Fees Act (VII of hSi'i), Sch. II.
Art. P'. A mooktear holding a mookteam.imah
bearing an i ight anna stamp authorizing him to act
in a case may perform in any act which a mooktear
may do in the course of a case. Gunamovee Debi
V. NoBiN Chusdra Bandopadhya 1 C. W. N. 11

7. Acting as mooktear — Act

XX of 1S65, s. I'j. The mere bringing a plaint to
a vakil for his signature by a mooktear not duly
qualified was not an acting as a mooktear which ren-
dered the party liable to a fine under s. 13, Act XX
of 1865. The Judge of a Court of Small Causes had
no jurisdiction in such a matter, unless the plaint was
one to be presented to that Court. In rt Muddun
MoHUN Biswas . . 6 W. R. Civ. Ref. 29

( 8335 )

DIGEST OF CASES.

{ 8336 )

MO OKTHA-R—contd.

8. . Act XX of 1865,

ss. 11 and 13 — Practising without certificate. The
writing a petition for a party who presents it in
Court is not acting as a mooktear within the mean-
ing of s. 11, Act XX of 1865 ; and the writer is not
liable to punishment under s. 13 for practising as
a mooktear without a certificate. In re Kali
Charan Chtjnd

9 B. L. R. Ap. 18 : 18 W. R. Cr. 27

Presenting ap-

execution — Pleading — "^ci " —

plication for

''Plead " — Practice on Original Side, High Court.
A mooktear having presented an application for
execution under Act VIII of 1859, s. 207, the
Munsif returned it upon the ground that it ought to
have been presented through a pleader, and not
through a mooktear. Held, that, upon the projier
construction of Act XX of 1865, s. 11, the decision
of the Munsif was right, and what the mooktear
was desirous of doing comes under the word "plead."
The construction put by the Munsif upon the words
" act " and " plead " is the same which has been
put upon them for many years on the Original Side
of the High Court, where attorneys are excluded
from making any applications in Court ; but advo-
cates, who have only the right to plead, are allowed
to make them. In the matter of Ishur Kant
Bhadooree . . , . 24 W. R. 233

10.

Act XX of 1865

ss, 13 and 42 — Practising as mooktear — Applying
for copy of judgment. Quosre : Whether an ap-
plication by a person holding an am-mooktear-
namah, but having no certificate, for a copy of the
judgment in a suit in which neither himself nor his
employer is a party, amounts to practising as a
mooktear within the meaning of s. 13, Act XX of
1865, so as to render the applicant liable to a fine
under s. 42 of that Act, supposing the application to
have been made for and on behalf of the employer.
In re Bama Churtjn Ghosal . 2 C. L. R. 553

11. Aci XX of 186:

MOOKTEAR— contd.

suit, Ch. VI of the Civil Procedure Code, 18-,
being made applicable to suits under Act X of 1 9
by s. 14 of Act XIV of 1863. Ram Persha..
Nazeer Hossein . . 1 Agra Rev. 3

Shunker v. Htjr Narain . 1 Agra Rev. 9

13. Suspension or dismissal f

mooktear— Power of High Court. The Hi
Court had power, under s. 15, Act XX of 1865 0
suspend or dismiss a mooktear from his office, w a
it saw " reasonable cause," although he might t
have committed any act of " professional misc..
duct " under s. 16. In the matter of the petitiohf
Gholab Khan . . . 7 B. L. R '9

16 W. R. Cr.5

13 — Mooktear and private agent, distinction

between. Per White and Mitter, J J The mere !

fact that a person looks after an appeal and gives 1
instructions to pleaders in connection with such '
appeal does not show that such person was practising
as a mooktear within the meaning of s. 13 of Act
XX of 1865. Per Garth, C.7.— Where a person is
in the habit of acting for persons in Courts of law,
and holds himself out as ready to perform what
is usually considered mooktear's work, for reward,
such person is no less acting as a mooktear on any
particular occasion, because he may have abstained
on the particular occasion from doing any of those
acts which a duly qualified mooktear is alone legally
capable of performing. Kali Kumar Roy v.
NoBiN Chunder Chuckerbutty

I. li. R. 6 Calc. 585 : 7 C. L. R. 562

12. Revenue Court —

Reference to arbitration. — Held, that a mooktear in
a Revenue Court must be empowered by an instru-
ment in writing to refer the matter in dispute to
arbitration in the same way, as a pleader in a regular

14.

statutes.

preialion of — Legal Practitioners' Act (XVIIIf
1879, as amended by Act XI of 1896), ss. 12, ,
cl. (/), 14, 36 — " Any other reasonable cam'
meaning of — Ejusdem generis — Prof essional misc.-
duct — 0§cnce committed prior to admission as lei
practitioner — Rulef> — Act XX of 1865, s. 15 — Let\i
Patent, s. 10. Held, by the Full Bench (Gho ,
J., dissenting), (i) that the words " any ot'c
reasonable cause," in s. 13, cl. (/), of the Lei
Practitioners' Act, are not confined to miseond t
of which a practitioner is guilty in his professii -
al capacity, but embrace all causes which nr
afford reasonable ground for his suspension r
dismissal; and (ii) that a legal practitioner w ,
prior to his admission, committed an offence whi ,
if committed after his admission, would render hi
amenable to the provisions of s. 13 of the Lei
Practitioners' Act, can be dealt with by the Cot
under that section. In the matter of Pv 1
Chunder Pal, I. L. R. 27 Calc. 1023, approved, ^
In the matter of Jogendra Narayan Rose, 5 C.\.
X. 48, overruled. LeMestt rter v. Wajid Hoss f
(1902) . . I. L. R. 29 Calc. Se :

s.c. 6 C. W. N. ii

15.

Dismissal of mooktea-

Power of Magistrate to dismiss. A Magistrate s
no power to give a mooktear " general dismiss."
unless he is convicted of an offence involving nwl
turpitude or infamy. Queen v. Sham CaD
Chowdhry .... IW. R. Cr.i

16. Suspension of mookteai-

Power of Magistrate to suspend mooktear — ii
XX of 1865. A Magistrate has no power to susp;d
a mooktear under Act XX of 1865. RooPO ••
wah u. Kekaroo . . . 21W. R. Cr.tl

17. Act XX of If,

s. 16 — Suspension from practice. Before mal'?
an order suspending a mooktear from practis^i,
the requirements of s. 16, Act XX of 1865, shoul"0
complied with by the Magistrate. In the maUvff
the petition of Gholab Khan i

6 B. L. R. Ap. 83 : 15 W. B. |1

In re Banchanidhi Mahanty 17 "W. B. CP

18.

Removal of mooktear— 1»;

minal charge — Evidence justifying dismisl
Evidence which does not support a conviction 0^

( 8337 )

DIGEST OF CASES.

( 833.S )

tf OOKTEAB— con/rf. I

riminal charge cannot justify a removal from a
irofession (the present case being that of a mook-
ear). In the maiter of Nil Kant B^as

19.

Reinstatement of mook-

ftgx— Conviction on criminal charge. Case of a
looktear who was reinstated by the High Court to
; is practice after suspension by reason of his having
een convicted in two cases, the circumstances of
iiese cases not showing that the mooktear was
'uilty of any moral turpitude or that he was unfit
lo act in the Criminal Courts as a mooktear. In the

i'attC" Oi KOYLASHNAUTH ChOWDHRY

■ ' 16,W. R. Cr. 41

•20. Proper Court to punish

\o6kte&T—Le(jal% Practitioners Act (XVIII of
, :9), es. 10, 32— Pleader— Illegal ■practice. A
leader or mooktear practising in contravention of
•le provisions of s. 10 of Act XVIII of 1879 is
'unishable under that Act only by the Court before
i-hich he has so practised. In the matter of the
Petition of Gaxga Dayal . I. L. R. 4 All. 375

21. ^— Legal Practi-

oners Act (XVIII of 1S79 as amended by Act XI of

\S96), «s. 13, cl. (/), 14 — Professional misconduct —

(isconduct prior to enrolment as legal practitioner

•!-"j4ny other reasonable cause" — Ejusdem generis

]-Perrmnent defect of character — "Talcing in-

Iracitons" and "Miscomluct'" — Authority) of sub-

\lin%te Courts to proceed under s. 14 of the

\egal Practitioner'^ Act — Departmental enquiry —

\egal proof. One P, a Sub-Inspector of police, was

Ijmmitted for trial to the Court of Session on

jiarges of bribery, forgery, and other offences, but

las acquitted. He was, however, departmentally

(•und guilty of misconduct and was dismissed from

lie Government service in 1891. In 1893, suppres-

ng the fact of his dismissal, he obtained a certifi-

jite of good moral character from a pleader, and on

jie strength of that certificate gained admission

I the mooktearship examination which he passed,

was enrolled as a mooktear and was practising

I -h for six years in the district of Bhagalporc

irently mthout any fault. The Sessions .Judge

■ lagalpore, having made a reference under s. 14

he Legal Practitioners Act, recommending

dismissal for the aforesaid misconduct :

!'ld per <1!hose, J. — The misconduct on

part of P being antecedent to his passing

mooktearship examination and enrolment

mooktear, and conse((uently having no relation

MS business as mooktear, it is extremely doubtful

hether such misconduct is " any other reasonable

|iuse " for his suspension or dismissal within the

a-aning of s. 13, cl. (/), of the Legal PrACtitioners

And it is also doubtful whether, when he

lied to the pleader for a certificate, P was bound

■late to him the past history of his life. Per

Pixi, J. — The misconduct of P constituted a

isonable cause" for his dismissal under the pro-

ns of 5. 13, cl. if), of the Legal Practitioners

■' Per Hill. J. (agreeing with Rampixi, J.) —

13, cl. (/), of the Legal Practitioners Act was

MOOKTEAR— coH/J.

intended to cover misconduct other than profes-
sional misconduct and to embrace all causes other
than those previously enumerateil in the section,
which might reasonably be regarde 1 as disqualify-
ing a person for retaining the oflice of pleader or
mooktear. In the matter of Gholab Khan, 7B. L. R.
179, relied on. An offence committed prior to ad-
mission may be made the foundation of proceedings
under s. 13 of the Legal Practitioners Act, provided
it is of such a nature as to iraply'a permanent de-
fect of character of a disqualifying kind. Held per
Hill, J. (agreeing with Ghose, J.) — That P, while
a Sub-Inspector of police, having been " department-
ally," and not on legal proof, found guilty of mis-
conduct, no case either for suspension or dismissal
from the profession of mooktear had been miule
out against him. In the m'lttrr of the petition of
Amenoodeen Ahmed, 6 W. R. Mis. 5, referred to.
Held, further, per Htll, J.— That " taking instruc-
tions " and "misconduct " referred to in s. 14- of the
Legal Practitioners Act relate to els. (a) and (b),
respectively, of s. 13of the Act, and it is only in such
cases that a subordinate Court is authorized to pro-
ceed under s. 14. The charges in the present case
not falling under either of these heads, the proceed-
ings were bad. The inquiry ought to have been held
by the High Court. In the matter of Southeknl
Krishna Rao, I. L. R. 15 Cnlc. lo2 : L. R. 14
I. A. 154, referred to. In the matter of Prnxv
Chunder Pai. . . I. L. R. 27 Calc. 1023
4 C. W. N. 389

Permission to appear-

minal Procedure Code [Act V of 1S9S), s. 4 (r)— Power
of Magistrate to withhold. When; a .Maiiistrate
refused ijermission to a mooktear to apjwar in
two cases, and also passed a general order refusing
permission to appear in any case before him.
owing to the latter' s aileced misconduct in Court
on a particular day : Hdd. that such orders were
without justification, and that, even in punish-
ing the mooktear for the particular misconduct, the
Magistrate should have dealt with the matter .)n its
own merits, giving the mooktear an opportunity of
defending himself. In the matt r of Takkndua
Nath Ciiatterjee (1902) . 7 C. W. N. 524

23. Professional misconduct —

Surety— Forfeiture— Rf m n ik rat ion — ' >!fic> r, duty of
—Legal Practitioners Act {XVIII of ls79), ss.
13, 14 (b). When a person practisinc as a
mooktear stands surety for the apix-araiice of a
Tahsildar under the Court of Wards before the
Collector, he does not do so in his professional
capacity ; he does so in his private capacity,
though, no doubt, the fact of his fillinc the posi-
tion of a mooktear lends a guarantee to the under-
taking-which the man gives. The money which
the mooktear receives from the person for whom
he stands surety is not a fee for professional
services. It is the duty of the officer who accepts
a suretv bond from a mooktear to see whether the
mooktear is a man of substance : and. when a mook-
tear entered into a surety bond, thouch he was a
man of no property, this could not be reL'ard.-d as
unprofessional conduct on his part. A mooktear

( 8339 )

DIGEST OF CASES.

( 8340 )

MO OKTEAB— concW.

who had stood as surety for another person objected
to pay when the same was declared forfeited, alleg-
ing that he had discharged his obligation, and,
when a certificate was issued against him, he con-
tended that the certificate was illegal ; when, later, a
distress warrant was issued, he was not to be found
for some little time, and the warrant was returned
unexecuted because no moveable property belong-
ing to him was found. Held, that these acts of the
mooktear did not amount to professional miscon-
duct. In the matter of Mangobixd Mitter (1902)
7 C. W. N. 28

24.

Mooktears practising in

admission in —

See LiMiTATioN-

TION .

MORTGAGE— coTi^cf.

Col.

Civil Courts — Legal Practitioners Act {XVIII
of 1S79), s. 32 — Rule made by the High Court—
Specicd leave of Court, if to be taken in each case —
Leave when to he given — Violation of rule, with
implied permission of Court, if punishable under the
Act. Special leave must be obtained from the
Court in each case by a mooktear, who is desirous
of oiiering any legal argument or examining any
witness before a Civil Court. Such leave should
be given only in exceptional cases and for sulBcient
reason. A practice allowing mooktears to act as
above generally and as a matter of course is in %iola-
tion of the rule made by the High Court, which
should be strictly observed. \Yhere, however,
certain mooktears had been acting in violation
of the rules made by the High Court, but they had
either the express or the implied permission of the
Court to do so : Held, that no proceeding iinder the
Legal Practitioners Act should be taken against
them. RajMohax Mukhopadhya r. Basir-uddix
AroiED(1904) . . . 8C. W.N". 401

MOOKTEARNAMA.

-Question of Limita-
I. Ii. R. 29 Calc. 664

non-production of —

-See Pakdaxashix Womex— Execttion

OF DOCFMEXT BY.

I. L. E. 9 Calc. 749

Validity of mooktearnaraah un-
der seal. — A mooktearnamah under seal is as
valid as a mooktearnamah under signature. A
Judge is not bound or authorized to require proof
of the genuineness of the ^eal. In the viatter of the
petition of the Maharajah of Burdwax

7 W. R. 475

MOOKTEAR SHIP EXAMINATION.
>See Board of Examixers.

I. L. R. 8 Calc. 479
MORTGAGE.

Col.

1. Form of Mortgages . . . 8348

2. CoxsTRucTiox .... 8371

3. Possession under Mortgage . . 8406

4. Power of Sale .... 8415

846
850
85C
851

851

5. Sale of Mortgaged Property —

(a) Rights of Mortgages . . 842
(6) Money-decrees on Mortgages 844
(c) Purchasers .
id) Miscellaneous

6. Marshalling ....

7. Tacking

8. Redemption —

(a) Right op Redemption .

(6) Redemption OF portion of Pro-
perty 85;;

Expiry of Term . , 85'

(d) Mode OF Redemption and Liabil-

ity TO Foreclosure . . 85;.

(e) Interest . . . .855
(/) Limitation .... 85{
ig) Miscellaneous . . . SSt

9. Foreclosure —

(o) Right to Foreclosure . . 86(

(b) Demand and Notice of Fore-

closure . . . ,861

10. Accounts 86;

11. Discharge of Mortgage . . 86'

12. Priority 86-

v_13. Miscellaneous cases . . .86-

See Agra Tenancy Act {II of 1901), !|

20, 21, and 31 . I. L. R. 9 All. 15!

See Appeal. . I. L. R. 35 Calc. 5,'

See Attachment — Subjects of Attac
MENT — Debts. I. L. R. 6 Bom. 3t

See Banker and Customer.

9 C. W. N. 7'

See Bexami.
See Benamidars

I. L. R. 30 All. 2;
I. L. R. 30 AIL

See Bengal Tenancy Act, 1885, s. 87.
2 C. W. N. 8

-See Bengal Tenancy Act (VIII of 188,.

ss. 159, Ifil to 167. '

I. L. R. 33 Calc. 8-

See Certificate of Administbatio

Act VII OF 1889.

I. L. R. 28 Calc. 2

-See Civil Procedure Code, 18S2, s.

I. Ii. R. 26 All

IOC. W.N. ]

I. L. R. 31 All.

See Civil Procedure Code, 1882, s. 43

I. Ii. R. 30 AU. 2?

See Civil Procedure Code, 1882, s. 24-

Questions in Execution of ■'■■

CBEE . . 7 C.W.N. 4^

( 8341 )

DIGEST OF CASES.

{ 8342 )

iOTiTGAQH—contd.

See Civil Procedure Code, 1882, s. 200.
I. L. K. 30 All. 252

See Civil Procedure Code, 1882. ss. 208,

372. . 9 C. W. N". 171 ; 693

Parties to Suit. . 7 C. W. N. 54

See Compromise . I. L. B. 35 Calc. 837

See Consideration.

I. L. R. 25 All. 159

Sec Contribution, suit for.

I. L. R. 32 Calc. 643

See Costs — Special Cases — Mortgage.

I. li. R. 3 Bom. 202

I. L. R. 15 Bom. 625

I. L. R. 17 Bom. 32

See Declaratory Decree, suit for —
Miscellaneous Suits.

I. L. R. 24 All. 170

See Decree — Construction of Decree —
Mortgage.

See Decree, exparte.

I. L. R. 35 Calc. 767

See Decree — Form of Decree — Mort-

GAGE.

See Deed —

Execution . 5 C. W. N. 454
Attestation. . I. L. R. 27 Bom. 91
7 C. W. N. 384
See Dekkhan Agriculturists' Relief
Act . , I. Ij. R. 31 Bom. 120
-See Document . I. L. R. 27 All. 351
See Equitable Mortgage.
See Estoppel . I. L. R. 36 Calc. 920
See Evidence — Civil Cases — Decree-
Decree not inter partes.

7 C. W. N. 54

See Evidence Act, s. 92.

I. L. R. 30 Bom. 119

See Execution of Decree.

I. li. R. 32 Calc. 494

See Execution of Decree — Mode of

Execution — Mortgage.
-See Hat . . I. L. R. 36 Calc. 665
See Hindu Law —

Alienation —
Alienation by Father.

I. li, R. 34 Calc. 184

Alienation by Widow — Setting
aside Alienations, and Waste

5 C. W. N. 445

Contract — Mortgage.

3 Bom. A. C. 11

9 Bom. 275 ; 304

11 Bom. 41

Guardian . I. L. R. 23 All. 133
I. L. R. 26 Bom. 433

MORTaAGE— conW.

See Hindu Law — condJ.

Joint Family — Mortgage by
Father . I. L. R. 29 All. 544

Joint Famii.y — Powers of Aliena-
tion BY Members — Manager.

I. L. R. 25 AIL 407

Partition — Effect of Partition.

I. L. R. 24 All. 483
Usury.
-See Interest —

Miscellaneous Cases — Mortgage.
Where no stipulation, or stipu-
lated TIME has expired.

Stipulations amounting or not to

Penalties . I. L. R. 29 Calc. 43

-See Interest . I. L. R. 33 Calc. 846

-See Jurisdiction — Suits for Land —

Foreclosure.
-S'ee Jurisdiction — Scits for Land —

Redemption.

-See Landlord and Tenant.

I. L. R. 33 Calc. 985

See Land Revenue Code.

I. L. R. 30 Bom. 466

-See Lease . I. L. R. 29 Bom. 391
-See Limitation . I. L. R. 34 Caic. 672
-See Limitation Act, 1877 :

— s 19 — Acknowledgment of Debts •
I. L. R. 25 Mad. 220

-See Limitation Act, 1877, ss.19. 20. 21,

2o , 9 C. W. N. 868

I. L. R. 33 Calc. 613

-See Limitation Act. s. 20.

I. L. R. 33 Calc. 1276
Sen. II—

Art. 10 I. L. R. 24 All. 17

Art. 35.

Art. 132 5 C. W. N. 356

Art. 134. I. L. R. 24 Mad. 471
I. li. R. 25 Mad. 99
Art. 144 — Adverse I'm-.-esslik.

I. L. R. 27 Bom. 43

Art 147. I. L. R. 25 Mad. 220

I. L. R. 25 AIL 35

Art. 148. I. L. R. 26 Bom. 500

Art. 179 — Law applicable to Appli"
CATION for Execution.

I. L. R. 30 Calc. 751

See U< pendens I. L. R. 31 Calc. 745
I. L. B. 28 Bom. 361
-Se M.\HOMEDAN Law— >L\kria..e.

I. L. R. 28 AIL 496

iSfC Mahomedan Law — Moktgage.

I. L. R. 20 Bom, 116

( 8343

DIGEST OF CASES.

( 8344 )

MORTGAGE— con<(Z.

See Mahomedan Law — Pbe-emptiok.
— Right of Pre-emption — Mortgages.
B. L. B. Sup. Vol. 166
6 B. L. R. Ap. 114
11 W. R. 282
I. L. R. 24 All. 119
See Malabar Law — ^Mortgage.
See Merger . I. L. R. 33 Calc. 1212
See Mortgagee.
See Onus of Proof — Mortgage.

See Pardanashin Wo:men.

I. L. R. 28 Calc. 546

See Parties . I. L. R. 33 Calc. 410
See Parties — Parties to Suits —
Joint Family.

I. L. R. 28 Calc. 517

I. L. R. 24 All. 459

I. L. R. 25 All. 162

See P.\RTiTiON . I. L. R. 35 Calc. 388

See Possession . I. L. R. 33 Calc. 1015

See Possession — Suits fob Possession.

7 C. W. N". 607

See Power op Attorney

13C. W. ]Sr.ll90

See Principal and Agent.

12 C. W. N. 28
See Priority.

I. L. R. 32 Bom. 466 ; 1190

See Probate — To whom granted.

6 C. W. W. 787

See Probate and Administbation Act.

10 C. W. N. 38
See Public Demands Recovery Act
' (Ben. Act VII of 18S0), ss. 2, etc.

I. L. R. 29 Calc. 537
See Receiver , I. L. R. 33 Calc. 1175

See Registbation Act.

I. L. R. 32 Calc. 46

See Registbation Act (III op 1877),

s. 17 . . .1. L. R. 29 All. 50

See Registration Act (III op 1877) —

s. 28 . I. L. R. 29 Calc. 654

s. 50 . I. li. R. 28 Calc. 139

I. L. R. 25 Mad. 1

I. L. R. 26 Mad. 72

I. L. R. 25 Ail. 366

See Relinquishment of, or Omission to

sue for. Portion of Claim.

I. L. R. 24 Mad. 96
See Res Judicata I. L. R. 33 Calc. 849
See Res Judicata — Matters in Issue.

I. L. R. 26 Bom. 661

See Sale . I. L. R. 33 Calc. 283

9 C. W. K-. 201 ; 989

See Sale for Arrears of Rent —

t. Incumbrances . 6 C. "W. M". 834

MORTGAGE— conicZ.

-See Sale for Arrears of Uent— concW.

Setting aside Sale — Geneeal Cases.

I. L. R. 29 Calc. ;

See SiGNATUBE . I. L. R. 24 All. 31f

See Small Cause Court — Presidency

Towns — Jurisdiction — Ijimoveablb

Property . I. L. R, 26 Bom. 85

^fee Stamp Act, 1869, s. 3.

I. L. R. 2 Calc. se

See Stamp Act, 1879, s. 3, cl. 4 (6).

I. L. R. 9 All. 58f
Sec Stamp Act, 1879, s. 3, cl. 13.

I. L. R. 11 Mad. 3?.

I. L. R. 21 Mad. 35f

L. R. 27 Calc. 58',

4 C. W. N. 52-

See Stamp Act, 1879, Sch. I, Art. 44.
S^.e Stamp Act (II of 1899), s. 24.

I. L. R. 29 Bom. 20f

See Stamp Act (II of 1899), Sch. I, Arts
32 AND 40. . I. li. R. 25 Bom. 87(
See Title — Miscellaneous Cases.

I. L, R. 25 Mad, SC"/

See Transfer op Proper iy Act, 1882
I. li. R. 28 Bom. 36:

See Transfer op Property Act, 1882, ss
72, 75, 85. 86, 91.

I. L. R. 28 Bom. 153 ; 18
See Transfer of Property Act (IV o
1882)—

s. 2 . I. L. R. 11 Calc. 58;

I. L. R. 12 Calc. 436 ; 505 ; 58[

I. L. R. 14 Calc. 451 ; 59(

I. L. R. 15 Calc. 35'

I. L. R. 6 AIL 26i

I. L. R. 10 Mad. 12J

s. 3—'' Xotice " . 7 C. W. N. 1

s. 6 (a) . I. L. R. 30 Mad. 25f

See Transfer of Property Act (IV o

1882), ss. 58 to 104.

s. 59

9 C. W. N. 69'

s. 60

. I. L. R. 29 All 26!

s. 65

. I. L. R. 26 Mad. 38!

s. 73

. 9 C. W. N. 11'

s. 74

. I. L. R. 26 Mad. 53'

8.82

I. li. R. 24 Mad. 85 ; 9(

s. S3

S.85
s. 86
ss. 86

6 C. W. N. 58:
I. li. R. 34 Calc. i;

I. L. R. 31 AIL 16<
I. L. R. 24 All. 46

I. L. R. 25 All. 171

13 c. w. N. no;

I. L. B. 31 All. 1.

. 9 C. W. N. 57'

I. L. R. 29 AIL 321

13 C. W. N. 74S

( 8345 )

DIGEST OF CASES.

( 8346 )

lOTLTQAGH—contd.

See 'I'KAXSFER OF Property Act (IV of
1882)— CO 7JcW.

ss. 88 AND 89 I. L. K. 25 Mad. 244

s 89 . . liL R- 29 Calc. 651

I. L. R. 33 Calc. 867 ; 890

13 C. W. IS . 744

. 7 C. W. W. 744

I. 1,. R. 25 All. 79

I. L. K. 33 Calc. 867 ; 890

I. L. E. 29 All. 260 ; 369

13 C. W. N. 138

. • I. L. R. 23 All. 88

I. L. B. 30 Calc. 463

I. L. B. 24 Mad. 397

I L. B. 21 Calc, 568 ; 792

I. L. B. 16 AIL 313 ; 315

I. L. B. 18 All. 265

I. L. B. 23 Calc. 713

I. L. B. 24 Calc. 763

I. L. B. 22 Bom. 761

I. li. B. 20 All. 468

I. L. B. 22 Mad. 301

(See Valuation of Suits.

I. li. B. 33 Calc. 1133

See Vendor and Purchaser.

I. L. B. 31 Bom. 566

See Vendor and Purchaser — Purchase
of Mortgaged Property.

alteration of bond —

See Contract — Alteration op Con-
tracts— Alteration by Party.

I. L. K. 25 All. 580 |

s. 90

s. 93
s. 99
s. 100
s. 135

MOBTQAGE— con/rf.

decree nisi—
See Transfer of Property Act, s. 88.

13 C. W. N. 1138
evidence of—

See Vendor and Purchaser — Miscella-
neous Cases . , 6 C. W. N. 192

— form of mortgage —

See Evidence — P.vrol Evidence.

I. L. B. 28 Calc. 256 ; 289

— inclusion in, of amount of

decree-

by guardian-

^—

See Minor — Liability of Minor on, and
Right to enforce, Contracts.

I. L. B. 25 All. 59

by landlord to tenant —

See Landlord and Tenant — Transfer
BY Landlord , I. L. B. 24 All. 487

— by member of joint Hindu fa-

mily—

iSee Hindu Law — Alienation — Aliena-
tion BY Father.

See Hindu Law — Joint Family — Powers
of Alienation by Members.

— by minor —

See Estoppel — Estoppel by Conduct.

I. L. R. 30 Calc. 539

See Minor — Liability of Minor on, and
Right to enforce, Contracts.

I. li. B. 23 All. 288

by receiver —

See Mortgage . I. L. B. 34 Calc. 427

by -widow—
iSee Hindu Law

See Civil Procedure Code, ISS2, s. 257A
I. li. B. 25 Bom. 252

— integrity of, broken up—

See Transfer of Property Act, 1882, s.
60 . . I. li. B. 31 All. 335

marshalling —

See Sale in Execution of Decree —
Mortgaged Property.

I. li. B. 29 Calc. 25

of ancestral property —

See Hlndu Law . I. L. B. 34 Calc. 372
I. li. B. 31 All. 507

— of joint family property—

See Hindu Law . I. L. B. 34 Calc. 735
I. L. B. 31 All. 176

of non-transferable occupancy

holding—

See Occupancy Holding.

13 C. W. N. 242

of occupancy holding-
See Bengal Tenancy Act, s. 20.

13 C. W. N. 12

of sir lands —

See Agra Tenancy Act, 1902, s. 7.

I. li. B. 31 All. 368

of teniires-

See Landlord and Tenant.

I. li. B. 34 Calc. 298

possession under mortgage-
See Mortgage — Redemption— Right of
Redemption . 6 C. W. N. 601

proof of execution of—

See Evidence Act, s. 68.

6 C. W. N. 395

property sold subject to-

13 C. W. N". 544

See Sale in execution of Decree —
Mortgaged Property.

Distribution of Sale-proceeds.

5 C. W. N. 649

( 8347

DIGEST OF CASES.

( 8348 )

MORTGAGE— co« td.

, property sold subject to — concld.

See Sale in execution of Decree —
concld.

Setting aside Sale — General
Cases . I. L. E. 25 Mad. 244
Irregularity.

I. L. R. 30 Calc. 142
property subject to—

See Court Fees Act, Sch. I, Art. 11.

I. L. R. 1 Bom. 118

6 W. W. 214

8 B. L. R. Ap. 43

redemption of^

See Hindu Law . I. L. R. 29 All. 215

See Mortgage —

Construction — Usufructuary

Mortgage . L. R. 29 I. A. 148

Sale of Mortgaged Property —

Purchasers . 5 C. W. K". 232

See Registration Act (III of 1877), s.

17, CLS. (b) AND (h).

I. L. R. 30 Calc. 1016

sanction of Court-

See Civil Procedure Code, 1882, s. 257A
I. L. R. 27 Bom. 96

simple —

See Sale in Execution of Decree — Set-
ting aside Sale — General Cases.

5 C. W. H". 63

subrogation of—

^fee Jurisdiction I. L. R. 36 Calc. 193

suit for sale on —

See Transfer of Property Act, s. 99.

suit on —

See Dekkhan Agriculturists' Relief

Act . . I. Li. R. 31 Bom. 450

See Limitation Act, 1877, Sch. II,

Arts. 132, 147 I. L. R. 30 Mad. 426

L. R. 34L A. 186

suit to enforce —

See Receiver . . 7 C. W. W. 452

usufructuary mortgage —

See Occupancy-holding.

13 C. W. N. 833

See Transfer of Property Act, ss. 67,

68.
See Transfer of Property Act, s. 99.

I. L. R. 16 All. 415

I. L. R. 17 All. 520

I. L. R. 26 Calc. 164

3 C. W. N. 290

See Transfer of Property Act, s. 135.
I. L. R. 16 All. 315

MORTGAGE— con<(f.

1. FORM OF MORTGAGES.

Bond containing hypotl.

cation. A bond which hypothecates property r
money advanced is a deed of simple mortga .

NazINA BiBEE V, JUGGOMOHUN DUTT

14 W. R. 41

2.,

Proof of actual pledge a I

ownership of property by pledger— Dae
on mortgage bond pledging land. The contract f
hypothecation defined. A creditor suing unc
such a contract must prove that there wasi
actual pledge, and tHat the land was part of a
debtor's estate at the time of pledge. The der 3
will then be for sale of the property hypothecat ,
unless the debtor pay the amount due with -
terest within a period to be fixed by the Co .
Chetti Gaundan v. Sundaram Pillai

2MadL

3. - Immoveable property ma }
security for loan without power of sal(-
Betnedy of creditor who has a right to reedize chat
not amounting to a mortgage — Foreclosure. Win
immoveable property is made by act of parties sel-
rity for the payment of a debt, but no power of sj. ,
without the intervention of a Court, is given to 3
creditor, there is no transfer to him of an interest!
the property until a decree for sale has been madn
his favour, and the transaction does not amount)
a mortgage. "\ATaen immoveable property has bn
so made security for the payment of a debt, there n
be no foreclosure by the creditor, unless the terms'f
the contract admit of it. Khemji Bhagvandas! .
Rama . . . I. L. R. 10 Bom. £)

4. Mortgage without chani

of possession — Parol mortgages of chattels. ^
mortgage may be supported if proved to have be i
made bond fiele, although the property mortga;!
may have been left in the possession of the mc,-
gagor. IMortgages of chattels may be made f
parol. ShyamSoonder V. Cheita . 3N". "W.J

5. Advance to save propei/

from sale — Lien. A person who advanjs
money to another for the purpose of saving a mel
of the latter from sale for arrears of rent has no Iji
on the property for the money advanced. DM .,?>
V. Pearee Kaunt, IS W. R. 404, and Enayet Host*
V. Muddun Moonee Shahoo, 14 B. L. R. 156 : 22\.
R. 411, cited and held not to apply. Hrri^'
Mohun Bagchi v. Giris Chunder Bundopadhj-

1 C. L. B. 1?

Eorm of words of h3^ot]-

cation — Intention of parties. Formal words of f
pothecation are not necessary to make an hypotp
cation valid, if the intention of the parties is si •
ciently expressed. Martin v. Pursram L

^ 2 Agra »

7. Uncertain aj

ment. Semble : That where certain persons, do-
ing themselves as residents of J, give a bond foi
payment of money, in which, as collateral secur
they charge " their property " with such paymi

( 8349 )

DIGEST OF CASES.

( 8350 )

I ORTG AGE— con<(i.

1. FORM OF MORTGAGES— con^i.

hey do not thereby create a charge on their im-
loveable property situated in J. Martin v.
'ursram, 2 Agra 124, distiniruislied. Deojit v.
'iTAJiBER . . . I. L. R. 1 AIL 275

8. Charge on im-

fioveable property — Ambiguity. A, to whom the
overnment had made a grant of certain villages,
tecuted an instrument in favour of his brother
larging the payment of an annual allowance to him
ad his heirs for ever on the " granted villages."
he instrument did not name the villages which had
een granted to A, but there Mas no doubt as to the
.articular villages which had been granted to him.
.'eld,that the fact that such instrument did not

ecify the villages which had been granted to

did not constitute such an ambiguity in such in-
i:rument as to render the charge created thereby
;ivalid. Deojit v. Pitamhar, I. L. R. 1 All. 275,
jistinguished. Rae Manik Chand v. Bekaree Lai, 2
\ W. 263, followed. Kajtahia Lal v. Muhammad
[rsAiN Khan . . I. L. R. 5 All. 11

9. Requisites of a

'.ortgage — Contract — Construction. In 1862 A, in
msideration of a debt of Rl50, passed to B a
riting called karz roka or (debt-note). It pro-
ided, inter alia, that B should hold and enjoy a
,3rtain piece of land belonging to A for twenty years ;
lat at the end of that period the land should be
ijstored to A free from all claims for payment of
lie principal or interest of the debt of R150 ; and
tiat, if B planted vines, he should be at liberty to
-I'tain the land so planted after the lapse of the
■venty years as a tenant at RoO per annum.
ccDrding to the terms of this agreement, B con-
nued in possession of the land till 1882, when A,
^•eating the transaction as a mortgage, brought
lis suit for redemption. Held, on the construc-
'on of the karz roka, that the contract between
:ie parties was not a mortgage, and that the
iefendant had a right to retain occupation at least
|: the vineyard, subject only to a rent of R50 a
|ear. There was no stipulation for interest
|3r was there any agreement for the payment of
! 160 in any case. It is not the name given to a
>ntract, but its contents or the relations consti-
jited by it, that determined its nature. Abdtjl-
jaAi t?. Kashi . I. L, R, 11 Bom. 462

\ lO- Document

eating charge. A lent B R99, and B executed
: document on the 24th July 1881, whereby he
|?reed to repay the amount with interest in the
jionth of Baishakh 1289 F. S. (April 1882), and
jirther agreed that, if he did not pav the money as
lipulated, he should sell his right to certain land,
jQd that A should take possession thereof, and
|iat, after A took possession of the land, no interest
|iould be paid by him (B), and that A should pay
le rent of the landlord out of the profits of the
■nd without any objection. A instituted a
lit on the 3rd August 1885 to recover the R99.
«W, that the document did not amount to a mort-

MORTGAQE— fo«W.

1. FORM OF MORTGAGES— co/i/i.

gage. Madho Misser v. Sidh Binaik Upadhya
alias Bena Upadhya . I. L. R, 14 Calc. 687

11- • — Bowl stipulating

for recovery of loan from moveable and immoveable
property. A bond containing a stipulation '• that if
the principal and interest is not paid up at the stipu-
lated period, then the obligee will be at liberty to
recover the whole of his money, together with the
interest fixed, by instituting a suit, from my
moveable and immoveable! property, my own
' milk,' " does not create a mortgage upon any
property of the obligor. CoLi.ErTOR of Etawah
V. BETi":\lAnAKAyi . . I. L. R. 14 All. 162

12. Agreement in petition

creating a lien — Money-decree. Where a suit was
brought on a petition which the plaintiff contended
created a mortgage-lien on certain property, the
Court found the document was executed by the
mortgagor with the consent of the raortsaijee,
and contained a clause by which the property was
distinctly hypothecated to the plaintiff as a colla-
teral security for the debt which the niortorasor had
contracted. Held, that the petition was a valid
agreement between the parties creating a mort£;age
in favour of the plaintiff. Althou2h a mort^aiiee
has obtained a money-decree, he can bring a regular
suit to enforce his mortirase-Iien. Dtma Saht v.
Jeonarayan Lal . 4 B. L. R. A. C. 27 note

s.c. Dogma Sahoo v. Joon^araix Lalt,

12 W. R.'362

13.

Clause in agreement giv-

ing right to sell property in default of pay-
ment—■';i''/ (7 (or money-decree on mortgage. The
plaintiff sued to recover a sum of money with
interest, on a mortgage-deed, which contained the
following clause : " If by sale of the above land,
the money receivable by you be not satisfied with
charges, then you will realize the proper amount by
selling my other landed properties, to which T will
make no objection or excuse." The plaintiff asked
for a simple money-decree. The defendant had
other landed property besides the property mort-
gaged. Held, that the plaintiff was entitled to a
simple money-decree available against hi"; moveable
property only. Jogeswar Drrr r. XiXAirnAvn
CHrCKERBFTTY . . 4 B. Li. R. Ap. 48

14. . CJreation of charge on pro-
perty— Construction of agrrem<nt. An airr.e-
ment in a bond, executed by a mort-ia-jor subse-
quently to a raortgaue in the following words, viz., —
" after the expiry of the mortgage, when the time
comes for payment of the mortgace-raonoy. first I
will pay the bond with interest, and after that I will
pay the amount of the mortsa^e," — is sufficient to
create a charse on the raortgaged estate. Bnrn-
WAN Doss V. Mahomed Jafer . 4 N. "W. 161

15. Construction of mortgage-
deed. The following terras iti a de^d — " that,
for the security of the payment of this debt, the
lands mentioned in this deed are pledged by me ;
and that, until the principal money and the interest

( 8351 )

DIGEST OF CASES.

{ 8352 )

18.

Usufructuary

mortgage — Hypothecation — Suit for money charged
on immoveable property. M and S executed an in-
strument in favour of K and G in the following
terms : " We, M and S, declare that we have mort-
gat^ed a house situated in Ghaziabad, owned and
possessed by us, for R300, to K and G, for two
years : that we have received the mortgage-money,
and nothing is due to us ; that we have put the mort-
gagees in possession of the mortgaged property ;
that eight annas has been fixed as the ■ monthly
interest, in addition to the rent of the house, which
we shall pay from our own pocket ; that we promise
to pay the aforesaid sum to the mortgagees within
two years, and redeem the mortgaged property ;
that if we fail to pay the mortgage-money within
two years, the mortgagees shall be at liberty to
recover the mortgage-money in any manner they
please." Held per Stuart, G.J., Oldfikld, J.,
and Straight, J. (Spankie, J., dissenting),
in a suit upon this instrument to recover the princi-
pal sum advanced by the sale of the house, that
the instrument created a mortgage of the house as

MOBTGAGE— co74<<?.

1. FORM OF MORTGAGES— con^i.

recited in this deed are paid off, I will not on any
account transfer the property pledged to any body j
by sale or hiba-bil-awar, or gift or mortgage in any !
other way " — were held to amount to a mortgage. !
Lala Ramdhari Lal v. Janessab Das

6 B. li. E. Ap. 14

16. Hypothecation,

validity of, as against purchaser. Where an instru-
ment, whereby certain persons describing them- ]
selves therein as zamindars and shareholders of a |
certain named mouzah, declared that for the con- ;
sideration therein expressed they mortgaged their i
" respective zamindaii shares," and all other move- I
able and immovenbie property owned and possessed I
by them, to .secure the payment of the debt therein {
mentioned, held to be such an hypothecation as to i
create an interest in favour of the mortgagees 1
which could not be defeated by a subsequent |
bond fide purchaser for value. Rae Manick j
Chtjnd v. Beharee Lall . 2 K". "W. 263 |

17. . Words creating 1

simple mortgage. A suit was brought in 1884 [

upon a hypothecation-bond executed in April 1875, '

in which the obligors agreed to repay the amount i

borrowed with interest at Rl-8 per cent, per men- \

sem in June of the same year. There was no pro- |
vision as to payment of interest after due date.

The bond specified certain property as belonging to I

the obligors, and contained the following provision : j

" Our rights and property in the aforesaid talukh j

Rajapur shall remain pledged and hypothecated for ;

this debt." Held, that the terms of the bond by j

which the property was hypothecated were suflfi- i

ciently clear and explicit to constitute a legal hypo- |
thecation of the shares and interests of which it

recited at the opening that the obligors were owners. ^
BiSHEN Dayal v. Udit Nabain

I. li. R. 8 All. 486

MORTGAGE— con<(Z.

1. FORM OF MORTGAGES— conid.

security for the payment of such principal sum
Dulli V. Bahadur, 7 N. W. 5-5. distinguishec
Phulkuar v. Murli Dhar . I. li. R. 2 All. 52'

19. Construction (

agreement — Agreement to give possession of Ian
till repayment of debt — Right to redeem. By tb^
terms of an agreement entered into by the plaiatif
and defendants a pending suit was compromised
and payment of an ascertained balance found du
by plaintiff was secured by the creditors (defendant
being placed in possession of plaintiS's land f(
fifty-five years, with the right of enjoying all th
rents and proiits tliereof, subject to the paymei
of a fixed rent, part of wliich was to be paid to th
plaintiff, and the remainder to be retained by t'
creditors towards payment of the debt. HeL
that the agreement was a mortgage, and, as sucl
redeemable on t'le usual terms. Mashook Amee
SuzzADA V. Marem Reddy . . 8 Mad. 3

20. Right to deer

for sale of property — Suit for money chargi
on immoveable property. The obligor of a bond ft
the payment of money gave the obligee a moiet
of the profits of a certain mouzah up to the er
of the current settlement and charged the otb
moiety of such profits with the payment of sue
money. It was also stipulated in such bond thi
the obligee should take the management of sue
mouzah, rendering accounts to the obligor, ar
that, if he, obligor, failed to pay such money whi
due, the obligee should remain in possession of tl
entire mouzah until payment of all that was dv
The original obligor having died, his heir gave t
obligee a second bond, in which he admitted tl
creation of the original charge and a certain furth'
debt. A portion of such further debt he undertoi
to pay on a certain date, and he agreed that t!
balance due should be realized by the obligee frc
a moiety of the profits of the mouzah, accordii
to the terms of the first bond, and that the mouz.
should remain in the obligee's possession until t
amounts due under both bonds were realized i
him, and that he, the obligor, should have no povii
to sell, mortgage, or alienate the mouzah. Held,^
a suit by the obligee on the bonds, that the botif
created a mortgage only of the profits of the mouz
and not of the mouzah itself, and accordingly tl
they did not entitle the obligee to a decree for t
sale of the mouzah. Ganga Prasad v. Kusy.'
Dm ... . I. L. R. 1 All. 6

21.

Mortgage of cr>

that may be grown upon a certain plot of land,
nature and effect — Transfer of Property Ao
Contract Act. The mortgage of indigo crops tl
may be grown upon a certain plot of land is a va
transaction. The transaction is neither govern
by the Transfer of Property Act nor by the Conti
Act ; but it is in the nature of an agreement
mortgage moveable property that may come i;
existence in future. Misri Lal v. Moztf
Hossein . . . I. L. R. 13 Calc. 2|a.

( 8353 )

DIGEST OF CASES.

( 8354 )

^OB.TQAQ'E—contd.

1. FORM OF MORTGAGES— corefd.
22. Movealie

<CTty — Non-existent moveables — Contract to assign
fter-acquired chattels — Coniphtion of assignment
n propertij coming into existence — Transferee with
olice of hypothecation. Held, upon principles of
quity, that a hypothecation of certain future
icligo produce was a valid contract to assign such
roduce when it should come into existence ; and
lat the hypothecation became complete when
lie crop was grown and the produce realized, and
! as eoforcible against a transferee of such produce
;ith notice of the obligee's equitable interest.
ollyer v. Isaacs, L. R. 19 Ch. D. 342, and
iolroyd v. Marshall, L. R. 10 H. L. 191, referred
'. Held, also, that such an interest would not
i lil against a transferee without notice. Joseph
Lyons, L. R. 15 Q. B. D. 280, and Hallas v.
\obin8on, L. R. 15 Q. B. D. 2<SS, referred to.
ANSiDHAK V. Sant Lal . I. Li. B. 10 All. 133

23. Suit for money

,arged upon immoveahle jjroperty — Instrument
I'.rporting in general terms to charge all the pro-
rty of obligor — Maxim " cerium est quod certum
\ldi potest ■' — Transfer of Property Act {IV of
i.?2), as. 98, 100. The obligor of a bond acknow-
ilged therein that he had borrowed 11153 from
\D obligee at the rate of Rl-S per cent, per
,!nsem, and promised to pay the principal with
j-.erest at the agreed rate upon a date named. The
iad continued thus : " To secure this money, I
•dge, voluntarily and willingly, my wealth and
jiiperty in favour of the said banker. Whatever
]j)perty, etc., belonging to me be found by
f • said banker, that all should be available to
'id banker. If, without discharging the
ue to this ' banker, I should sell, mort-
. r dispose of the property to another banker,
-ill transfer shall be void. For this reason,
Ijave of my free will and consent executed this
1 Kithecation-bond that it may be of use when
1." The amount secured by the bond be-
lue on the 6th May 1879. The bond was
■ed under the Registration Act as a docu-
atiecting immoveable property, and the
■ was a party to such registration. On the
!.iy 1885 the obligee sued the heir of the I
I to recover the principal and interest due [
Me bond by enforcement of lien against and
t immoveable property belonging to the I
i uit. Hihl, that the bond showed^that the |
"n of the parties was to create by it a ;
upon all the property of the obligor for |
lyment to the plaintiff of the principal :
> borrowed, together with interest at the i
rate. Najibulla Mulla v. Nusir Misiri, I
'". 7 Cede. 196, referred to. Held, also, that i
'ds used in the bond as indicating the pro- !
>vhich was intended to be subject to the
were sufficiently specific and certain to
• and were intended to include, all the pro-
ithe obligor; that this being so the maxim
« est quod certum reddi potest " applied ; and
VOL. III.

MORTGAGE— con^/.

1. FORM OF MORTGAGES— <ro/i^r?.

that the bond created a charge upon the immove-
able propertj' of the obligor in re.sfiect of the princi-
I pal and interest in question. Ramsid Pande u.
Balgokind . . I. L.. R. 9 All. 158

24, Mortgage of moveable pro-
perty without possession— LcyuZ a,i^I to nit-
! able mortgages. The Courts of this country being
Courts both of law and equity, it is immaterial for
I the determination of claims to attached property
whether a mortgage is a legal or equitable one.
Where goods are mortgaged and left in the po.-ses-
j sion of the original owner, the circumstance that
they are so left is not to be held as a fraud per se
1 rendering the mortgage liable to be defeated as
j between the mortgagor and third parties, such as
bond fide purchasers or judgment-creditcrs. But
when possession is left with the mortgagor, this
I is a circumstance of which the Court should take
\ notice when determining whether the mortsage is
i bond fide or fraudulent. A mortgagee is not
bound to take possession immediatclv default is
made. Deaxs v. Richardson . 3 N". "W. 54

25. Will — Devise of immoveable

property subject to it? being charged in a parti-
cular tvay — Suit to enforce mortgage not so made.
Certain immoveable property was devised by will
upon condition that the devisee, who was f4lso
an exocutor of such will, should execute a mort-
gage of such property to the Official Trustee of
Bengal for the time being to secure the paj-mont of
a certain legacy. The devisee, with the intention of
giving effect to such condition, mortgaged such
property to his co-executors. Held, in a suit by
one of such co-oxecutoi-s to enforce the mortgage
that the mortgage, not being executed in accord-
ance with the terms of the will, was invalid, and the
suit was not maintainable. VAroHAX v. Heshl-
TiNE . . . I. L. R, 1 All. 753

28. Advance of part only of

consideration — Intention of parties. WJiore jiart
only of the consideration has been advanced in
respect of a mortgage transaction, it does not
follow that the mortgagee \\ho makes such ad-
vance is entitled to possession of a part of the mort-
gagor's land proportionate to the money advanced ;
but whether the parties by their subsequent con-
duct raised the inference thet this was meant, may
be a question of fact for tiie Court to doto;niino,

ACHUMBEET TEWAREE V. BlUCWAXT PaNDVV

1 N. W. Ed. 1873. 161

27. Agreement not to alienate

—SubseqJient mortgage to jniy of} former one. A
stipulation not to alienate cannot operate to annul
a bond fide conveyance to a third person by the
mortf'afor for the purpose of paying off the ori-
ginal "mortgage-debt ^^'-'^.^^if ^''^^„ , ^VftTA '.i
HiDAYCTooLLAH . Agra F. B, 7 iid. Ib74, 5

28 Condition aguinst

alienation. Held, that, where a person stipulates
generally not to alienate his property, he does

12 k

( 8355 }

DIGEST OF CASES.

( 8356 )

MORTGAGE— conftZ.

1. FORM OF MORTGAGES— contd.
not thereby create a charge on any particular pro-
Bhupal v. Jag Ram

I. L. R. 2 All. 449
Agreement not

perty belonging to him.

29.

to alienate — Form of mortgage. By an agreement
reciting that A had executed a bond in favour of B
for a certain sum of money, A, "in order to repay
the bond-money in the terms in the bond con-
tained," declared that, " until the repayment of the
money covered by the bond, he would not, from the
date of the agreement, convey the property men-
tioned therein to any one by deed of sale, or deed of
conditional sale, or mokurari pottah, or deed of
mortgage, or zur-i-peshgi ticca pottah. Should he
make any of these transactions in respect of the said
lands, the instrument relating thereto shall be
deemed invalid, and as executed in favour of
nominal parties for evading payment of the money
covered by the said lands." Held (Markby, J.,
doubting), that the instrument operated as a mort-
gage to A of the lands comprised therein. No pre-
cise form is required to create a mortgage. Raj
Kumar Ramgopal Narayax Singh v. Ram Dutt
Chowdry. 5 B. L. R. 264 : 13 W. R. P. B. 82

30. Covenant not to

alienate — Mortgage. A bond contained a clause
that the obligors would not dispose of any of the
property, moveable or immoveable, in their pos-es-
sion until the debt was paid. Held, that such a
clause did not give the obligee of the bond a lien on
such property, though he might sue for damages
in resjject of breach of contract. Ramrtiksh v.
SooKH Deo . . 1 N. W. Ill Ed. 1873, 159

31. Stipulation not

to alienate. An ikbaldawah, containing a stipula-
tion that the debtor shall not alienate certain pro-
perty till the satisfaction of the decree, does not
amount to hypothecation giving the decree-holder
a lien on the property. The decree-holder may sue
for damages on the breach of conti-act by the judg-
ment-debtors, but has no right to the property
against a purchaser. Choonee Lall v. Puhulwan
SixGH 3 Agra 270

32.

Agreement not to

alienate— Construction of mortgage-deed — Gift to
wife for doiver. A mortgagor stipulated that he
would not sell the property mortgaged during the
subsistence of the mortgage term ; but that, if he
did sell, he would sell to the mortgagee at a fixed
price.' He subsequently alienated a moiety of the
property to his wife in lieu of dower ; a suit Avas
instituted by the mortgagee to set aside the aliena-
tion. Held, on the construction of the mortgage-
deed, that the condition did not absolutely prohibit
alienation, but simply conferred on the mortgagee a
pre-emption right to purchase, and that the mort-
gagee could not sue for avoidance of the alienation
to the wife, M-ithout claiming or expressing a will-
ingness to purchase. Shiva Charan Dass v.
RoosTCM . . Agra F. B. 69 Ed. 1874, 53

^3. ■ Covenant not to

alienate— Transfer to purchaser— Claim to pay hij

I MORTG AGE— con^cf.

I 1. FORM OF MORTGAGES— co«W.

I instalments. A mortgage-bond provided that t

I mortgage-debt should be paid in instalments, a

j that no transfer by the mortgagor of the propei

mortgaged, so long as the debt' was undischarc.

I should be made or should be valid. Subsequen

[ the mortgagor transferred the mortgaged proper,

j the sale-deed providing that the unpaid balancei

I the mortgage-debt should be paid to the origi j

mortgagees by instalments, and that anyfurtr

sum should be paid by the mortgagor. The Cour I

first instance decreed possession to the purcha .

whose possession was resisted by the mortgas.,

on payment of the unpaid balance of the mortg.i.

j debt in full. On the appeal of the purchaser, Vo

I claimed to pay off the debt by instalments, e

j Court declined to interfere with the decree. .-

homed ZaKAOOLLAH 7). BaXEE PERSHiD

j IN. W.Ed. 1873, 5

34. ■ Condition agast

I alienation — Auction-purchaser at sale in execun

! of decree. A transfer of mortgaged property irle

' in contravention of a condition not to alienate isjt

j absolutely void, but voidable in so far as it iin

j defeasance of the mortgagee's rights. Wherein

contravention of a condition not to alienate, le

mortgagor had transferred his proprietary rjghin

the mortgaged property to a third person for a'' 1m

' of years, the Court declared that such transfer sh Id

I not be binding on a purchaser at the sale in esu-

j tion 9f the decree obtained by the mortsagee forfio

sale of the property in satisfaction of the mort.so-

debt, unless such purchaser desired its continure.

I Chtjnni v. Thaktjr Das I. L, R. 1 All ^6

j and see Khub Chand v. Kalian Das

I I. L. R. 1 All '"

I 35. -^- Right of a~

of bond containing coveyiant not to aliena'
' pert//. A stipulation in a bond to the eHer
the obligor will make no transfer of certain pi' •
hypothecated by such bond until the debt tl;
secured has been paid up cannot be used by a
person, not a party to the bond, to defeat a -
quent charge upon the same propertv gran'
favour of another creditor of the obligor. !■
DUX Lal v. Wazeer Ali . . 3 N. W

36. Purchaser

in execution of decree, right of — Condition "'
alienation. J gave B a bond for the paynn
money in which he hypothecated certain inr
able property as security for such payment,
nanting not to sell or transfer such property
the mortgage-debt had been paid. In l)reach ■
condition, he granted M a leaso of his rigl
interests in such property for a term of twelv '' '•
a-half years. B, having sued on such bomi'^'"'
obtained a decree charging such propeity wi vi^
satisfaction of the decree, sued M and J f ''j*
cancelment of the lease and a declaration t"^.'*
Avould not be binding on the purchaser at a ;<'"'
the execution of the decree, alleging that th'O**
had been granted to defeat the execution ' '!*
decree. The High Court refused, in viewf '"

( 8357 )

DIGEST OF CASES.

( 835S )

1 )BTGAGE— ron<^.

1. FORM OF JIORTGAGES— confi.

dision in Chunni v. Thahur Da-i, I. L. R. 1 All.
1 , to interfere with the decroo of the lower Court
e ns B such a declaration. Mfl Chand v. Bal-
oixD . . . . I. li. K. 1 All. 610

7. . Covenant not to

at •wtte. An agreement recited that A had executed
a md in favour of B, in which it was declared, " I
p uiso to repay the whole principal, Avith interest,
ii he month of Phalgun 1271 F.S., and till pay-
ir it of the amount I will not transfer any property
b 'onditional sale or mortgage." The bond con-
tf od no further proviso declaring invalid future
a] lations of the lands belonging to A in the man-
nt -pocified in the bond. Held, that the instrument
di not operate as a mortgage by A. Guxoo
Si I V. Latafut Hossaix

I. L. E. 3 Calc. 336 : 1 C. L. R. 91

3. Covenant not to

dmtc or encumber. The obligors of a bond for
th'payment of money covenanted as follows : " To
86 re this money, we have mortgaged a five gandas
sh 0 out of a ten gandas share in each of the vil-
h ;. etc. So long as the principal amount with

• is not paid, the hypothecated share will not
ur mortgaged to any one." Hold (Pethe-

' ../., dissenting), that the bond created a
oii.lL! mortgage. Per Petheram, C.J., that the j
bt I gave the obligee a charge only on the property. |

Si iRATAN KUAR V. MaHIPAL KtTAR I

I. L. B. 7 All. 258 j

Agreement not to \

'< — Mortgage-howl. In consideration of a j
.1 gave a bond, by which he covenanted " not
!i 1. te the property of himself and his daughter
■ St of his own property, until the loan secured

i)ond was paid." The bond was recorded |

I he Piegistration Act in the book numbered \

■' jir ■' required to be kept by the Act. A subse- j

qt tly sold his immoveable property, and the con- I

Tejnce was leccrded in the book numbered "one" I

in 'lich documents relating to immoveable property 1

ha\ to be recorded. In a suit by the bond-creditor \
" ■■' the purchaser seeking to establish a lien on

moveable projierty by virtue of the bond : — ,

'.at the general words used in the bond were j
: cient to give a lien upon any specific pro-

iiid that the fact that the bond had been i

• li in book " four " showed that it was not 1
li intention of the parties that the immoveable |

prjerty of the debtor should be charged. Naji- I

m .A MULLA V. NUSIK IMlSTRI i

I. L. R. 7 Cale. 196
8 C. L. E. 454

if, also. Doss Money Dossee v. Jo'me.vjoy
MjucK I. L. E. 3 Calc. 363 : 1 C. L. E. 446

"• — ;- Usufructuary mortgage —

'•lion of deed of mortgage. In ascertaining ,
' a deed, confessedly ambiguous, amounts to |
:ructuary mortgage or to a lease in perpe-
iie .ludge should look within the four corners ;
.nstrumeut before him and ascertain from it

MOETGAaE-^o»^7.

1. FORM OF MORTGAGES— con/(f.

what kind of transaction the parties had in view
when they entered into it. In the case of an usu-
fructuary mortgage, where no term is specified,
the mortgagor is entitled to re-enter on the property
when, on taking an account, he is able to show that
the principal and interest have been satisfied.
Lala Dour, Naraix v. Rcxjit Singh

1 C. K B. 256

41.

Advance on zur-

i-feahgi lease. A lease was granted on a zur-i-]>eshei
advance for seven years at an annual jiimma of
R214-4. from which a deduction of R 111-15 was to
be made on account of interest ; and it was also
stipulated that if, after the expiration of the lease,
the loan was not repaid, the lease should continue.
Held, that, under the circumstances as stated above,
the transaction between the parties was a mort-
gase. KiSHTO Coomer Si>fGH v. Chowdree
Beeraj Singh .... 2 Hay 159

42.

Advanc'

rnoneji tcith possession of land till advance is repaid.
Where a sum of money is advanced, and the person
making the advance is put in receipt of the rents and
profits of land by way of payment of interests on the
loan, this is not' a mere license or permission to the
lender of the money to receive the rents, revocable
at the will of the borrower, but is in the nature
of a mortgase transaction. Khooshal Rae r.
JankeeDoss' . . . . 2N. W. 9

Advance by

tenant to landlord on account of security for pay-
ment of rent. A sum taken by a landlord as an ad-
vance, to be ciedited to his lessee in his acccui.ts
as rent, may be considered as security for the pay-
ment of the rent, but dues not change the lease into
a mortoat^e. Gridhakee Singh v. Collis

8 W. E. 497

44. Zur-i-peshgi Ica-e,

with covenant not to alienate or evict lessee. By a
zur-i-peshd lease granted upon the advance of
R.'i.Sn, the lessee was to hold possession of certain
villases for the term of five years, and to pay himself,
out of the proceeds of the villages, interest on the
l(5an : and the lessor undertook not to mortcace or
alienate the property during the term, nrd not to
oust the lessee, or, if he did, that he would pay him
R I 000. Before the expiration of the term the vil-
la^es were taken in execution, and sold under a de-
cree at the suit of a third party, and the Icssio
turned out of possession. Held, that the lessee
had no claim agaii st the villages for the principal
morey and that the sum . >f H l.OOti was fcrfoited.

\rVDLiLL V. KULLIANABCTTEE

.NUNDLALi. Marsh. 209 : 1 Hay 532

45. I'sufruciuary

lease ' for loan—CmMruction of deed—Suit for
possession vnder deed of lease or mortgage. J,
the lessee for a term of a zamindari. brought a suit
aaainst B, the lessor, to prevent B interfering with
his possession which he had under the lease granted

12k2

( S359 )

DIGEST OF CASES.

( S360 )

MO'RTGAG'E—contd.

1. FORM OF MORTGAGES— cow^i.

to him by B in consideration of certain pecuniary
advances made by him to B. The relief sought was
in effect an injunction to restrain B from collecting
the revenue of the zamindari. The defence set up
by B in his answer was in substance that the lease
was an executory contract, and being without con-
sideration could not been forced, and was, moreover,
void for maintenance, by reason of a subsequent
agreement for the advance of a sum of money to
carry on a suit which had not been carried out. The
Judge of the Civil Court adopted this view and held
the lease void. The High Court of Madras on appeal
treated the case as a suit for specific performance,
and decreed execution of the lease. On appeal the
Judicial Committee sustained the decree as to pos-
session under the lease, but as it appeared from the
evidence c^uestionable whether the transaction in
respect of the lease did not really operate only as
a loan, ard as a right to redeem might exist, the
aifirmance was made with a declaration that it was
to be without iirejudice to the claim (if anj') of B
to which he might be entitled, and to any question
which might be raised as to the amount which was
actually advanced by A to B. Kamala Naiken v .
PiTCHAcooTTY Chetty . 10 Moo. I. A. 386

46. Party paying off

debt, right to possesffion of. A party who by pay-
ing oS a mortgage becomes an usufructuary mort-
gagee in place of the original zur-i-peshgidar does
not need to sue for the amount due, but is entitled to
remain in possession until the whole debt has been
discharged by the usufruct. Fyezoollah i:
Kazim Hossein . . . . 14 W. R. 29

47. Rigid to proceed

against land to realize debt. A covenant to put
the creditors into possession of certain property
which they were to retain for a certain period, tak-
ing the profits in lieu of interest, is only an usufruc-
tuary mortgage and not a deed of h3'pothecation,
and a suit to bring the jjroperty to sale for the
realization of the amount due uncler the deed is not
maintainable. Dulli v. Bahadur . 7 K". W. 55

48.

Covenant not to

lease — Lease of property mortgaged — Suit to set
aside lease. A mortgaged certain property to B,
agreeing, amongst other things, not to grant in zur-i-
peshgi or mortgage the property to any one so as to
cause any difficulty in the realization of the money
advanced under the mortgage-bond. ■ ^4 subse-
quently leased in zur-i-peshgi part of the property
to C. B obtained a sale-decroe against A on his
mortgage, and at the sale himself became the pur-
chaser of the property. He then brought a suit
against C to set aside the zur-i-peshgi lease and to
obtain khas possession. Held, that the covenant
in the mortgage-bond merely created a personal j
liability between J and JS, and that the sale under I
fi's mortgage decree did not put an end to the '
zur-i-peshgi lease or affect the interests of the j
zur-i-peshgidar ; that B's suit against C was wrong j
in form ; and that his proper course was to sue to |

MORTGAGE— co»frf.

1. FORM OF MORTGAGES— coKi.

have his right declared to sell the property in sai^
faction of his mortgage-debt, so as to give the z-
i-peshgidar an opportunity of redeeming. Raei
Pershad Misser v. Monohur Dass

I. L. R. 6 Gale. 317 : 7 C. L, R. 2J

49. Sale—CoTistr.

tion whether lands had been sold or mortgage'-
Evidence — Documents explained by parol— Wte
land grants — Usufructuary mortgage. Waste las
granted in 1870 were transferred by the granteen
1871 to his creditor, since deceased, from whe
representatives in 1891 he claimed redemption, 1-
leging that the transfer had been made upon a m';-
gage -with possession. The grantee had previouj',
in 1870, mortgaged the lands to his creditor to sf^e
advances taken for part p)aj'ment of the purch )•
mone}'. In 1871 they arranged that the credir
should advance the entire balance, and they joh'y
petitioned for an entry to be made in the registeif
waste land grants that the ownership had bn
transferred from the one to the other of them, lia
entry was made, and endorsements to the Sije
effect were made on the documents of grant. In
the question whether the transaction was a mo
gage, or a sale as the defendants alleged it tea,
general evidence was given, in addition to ie
documentary ; and among the facts in favour of le
plaintiff was that the creditor had retained unci-
celled, till his death, all acknowledgments for »e
money advanced by him in the transaction, jl-
though, under other circumstances, and on !i8
documents alone, the inference might have Ijn
that there had been a sale for some undiscLpd
consideration, yet, on the true construction ofie
joint petition, and the orders made thereon, le
proper conclusion was that the entry and endce-
ments were intended only as a record of the arra e-
ment proposed by the parties, and sanctioned bjiW
registering officer. The intention was not to if^
an absolute sale. The transaction was held to | »
mortgage which the plaintiff was entitled to red(|n.
Kader Moideen v. Nepean [

I. L. R. 21 Calc. i 2
L. R. 21 1. AW

50.

^ole— Conditions for retr

chase. The plaintiffs sued to redeem an aii
mortgage made in 1S23 by their ancestor *
ancestor of the defendant. The alleged m- '
recited a previous mortgage under which thi;
gagee G was in jjossession, and it stated that i
had been contemplated, but the parties cou;
agree as to price, but that they had now -
it at R125 and the amount due on the mort.'
R200, c.nd that the following arrangement wa>
to, viz., that if within four years the mortgagor ''|
R125 with interest, he should get back the h'i>
if not, that the land should be the absolute proi"^
of G. Held, that this was not a mortgage, but i
It was an agreement which put an end t
previouslv existing mortgage. A mere «*'?"'
for repurchase does not make a transaction a i^ "
gage. To make a mortgage there must be a ot

( 8361 )

DIGEST OF CASES.

( 8362

a t-RTGAGH—contd.

1. FORM OF MORTGAGES— <;on?f?.
81 here there was no debt, nor was the property
h( conveyed as security. Vasudeo Bhikaji
Jtlu V. Bhau Lakshman Ravut

' I. L. R. 21 Bom. 528

Mortgage or sale — Test of

ifiAcr instrument is a mortgage or a sale. In an
in -ument, dated the 30th June 1886. styled a sale-
dt . it was recited that in consideration of R 2,500
ce lin specified properties (already mortgaged to
thso-called vendees and in their possession) were
" -en in sale " to them and wore to be enjoyed
bjlhem for ten years in any manner they liked.
Al' le expiration of that time, the vendors were to
pa! the R 2,500 and take back the property. In
Ifc the plaintiff (a son of the so-called vendor)
br ht this suit treating the above mstrument as
a I rtgage and praying for redemption. The main
qn tion in the suit was whether the instrument
.su on was a mortgage or a deed of sale with the
(ipiiii of re-purchase after ten years. Held, that
th instrument was a mortgage. The test was
nl her after the execution of the deed there con-
tirVl to be a debt from the so-called vendors to
th'i'endee, or whether the pre-existing debt be-
cali extinguished on the execution of the deed.
B/\- V. Bhava>-i . I. li. R. 22 Bom. 245

■[. Mortgage by conditional

SAi— Law of mortgage /« Madras and Bombay.

'' I'tract of mortgage by conditional sale is a

iiurity known throughout India, and which
•nient law of India which must be taken to
!i every part of India where it has not been
Iiy actual legislation or established practice
'•able according to its letter. From the

> the Courts of the Madras Presidency, and
year 1864 the Courts of the Presidency of
liavo erroneously, and in contravention of

■i India as declared by the earlier decisions,
v. ith regard to this class of securities, doo-
iiich the English Courts of Equity have
'1 mortgages in England. Quaere : — Whe-
'•aling with future cases the Judicial Com-
ught to follow the now course of decision

> sprung up in these Presidencies, or their
i-ionin thecaseof Pattahiramier v. Venca-

'cken, 7 B. L. E. 136 ; 13 Moo. 1. A. 6'iO.
itial characteristic of a mortgage by con-
>:\\o is that on the breach of the condition
'iiont the contract executes itself, and the
i'ln is closed and becomes one of absolute
I nut any further act of the parties or ac-
ility between them. Where land was mort-
al a condition that the rents should be
':"st in payment of the Government revenue,
payment of the salary of a manager, and
lis in reduction of the debt, and it was
stipulated that instalments of a fixed
-hould be paid up to a certain date by the
ir to the mortgagee, and that on that date
p^iuent of accounts should be made, and in
'uwj'vent of there being a balance against the
WOijagor, and his not paying the same on a date

MORTGAGE— co«<//.

1. FORM OF MORTGAGES— coH<(/.
fixed, the mortgagee should become the purchaser
at a fixed value of so much of the land as would
satisfy such balance, retaining his right to sue the
mortuMgor personally for any further sum that
might remain flue, owing to the whole of the land,
as valued, growing insufficient to satisfy such
balance : — Held, that this was not a contract of
mortgage by conditional sale. THr.MBrsxMv Moo-
DELLY V. HoosAix RowTHEN" I. li. R. 1 Mad. 1
L. R. 2 I. A. 241

53. . Sale expirhv) be-
fore iSoS. When the term of a conditional .sale,
whether made as a sccurit\' for a loan or not. had
expired before 1858, the rule laid down in Thum-
hiisawtnys Ca.ie, I. L. JR. 1 Mad. 1, must be observed
and effect given to the contract. Bapirazc r.
Kamaraztj . . . I. L. R. 3 Mad. 26

54. Co-niinmng debt.

When one party to a transaction alleges it to be a
mortgage and the other alleges it to be a sale, the
question for consideration is whether or not there
continued to be a debt from the former to the latter.
The plaintiffs sued for possession of certain lands,
alleging that they have been mortgaged to the de-
fondant by their father under two documents. The
defendant produced them and relied upon them as
deeds of sale, which conveyed to him absolutely the
lands mentioned in them. The form of the instru-
ments was not conclusive, but it appeared aliunde by
the conduct of the defendant himself that the deeds
were intended as mere securities for mone\', and that
he had treated them as such. Certain entries in the
defendant's accounts also treated the respective
considerations named in the deeds as continuing
debts due to the defendant from the plaintiff's
father. The Subordinate Judge awarded the
plaintiff's claim, but his decree was revei-sotl. on
appeal, by the Assistant Judge, who held that the
transaction was a sale, and not a mortgage. Qn
appeal to the High Court : — Held. that, under the
circumstances mentioned above, a Court of Equity
would regard the instruments as mere securities
for money. Go\axDA v. Jesha Premaji

I. L. R. 7 Bom. 73

55. Sale »ince 1S5S

— Construction of right of redemption. Per Curiam
(IyxE.s, J., dis.senting). — In the Madras Presidency,
where contracts of mortgage by way of conditional
sale have been entered into subsequent to the year
1858, redemption after the expiry of the term limit-
ed by the contract must bo allowed as supnosted in
Thu'mhusnu-my Moodelly v, Hossain Routhen, I. L.
R. 1 Mad. 1. Per Innes. J. — Contracts of mort-
gage and conditional sale must bo constnio«l in
accordance with the intention of the parties, which
can onlv be gatheroil from the terms of the instru-
ment. It cannot bo presumed that parties to mort-
gages by wav of conditional sale executed since 1858
contracted \rith reference to the rule enforced by
English Courts of Equity, adopted by the Suddor
Court in 1858, and followed for thirteen j-oara in this
Presidencv. Ramasami Sastrioal v. Samivap-
PAXAYAK.;.v . . . I. li. R. 4 Mad. 179

( 8363 )

DIGEST OF CASES.

{ 8364 )

MORTGAGE— co«/fZ.

1. FORM OF MORTGAGES— co»YfZ.
See Venkata Subbaya v. Vexkayya.

I. L. R. 15 Mad. 230

56.

Deed, construc-

tion of — Bai-iil-wafa — Foreclosure in the Central
Provinces. By a bond, dated 10th February 1857,
a certain village was mortgaged by one G to the
appellants and their father as security for a loan ;
the bond providing that, " if I fail to pay the money
as stipulated, I and my heirs shall, without objec-
tion, cause the settlement of the said village to be
made vn.t\\ you." The interest of G in the village
was described as that of a malguzar, and his pro-
prietary right therein was declared by the revenue
authorities shortly after the execution of the mort-
gage, but his payments of reveniie being in arrear,
the Board of Revenue granted a lease of the village
for ten years to the appellants' father. The mort-
gagees in a suit on the bond obtained the following
decree on 3rd November 1860 : " As the defendant
acknowledges the plaintiffs' claim, it is ordered
that a decree be given to the plaintiffs for principal
and interest and cost against the defendant and the
mortgaged property." In proceedings in the Civil
Court taken under this decree, the mortgagees
asked for possession of the village, and obtained,
on 17th July 1862, an order, in pursuance of which
they were put in possession, an appeal by G being
rejected. G took various steps to obtain possession
of the mortgaged property, or a declaration of his
proprietary interest therein, but failed in his endea-
vours, an application for a grant of the proprietary
right in the village, and an appeal from an order
cancelling his pottah, being rejected by the revenue
authorities on 8th December 1864 and 27th July
1865, respectively ; and on 12th August 1867,
G conveyed the village by deed of sale to the
respondent. In a suit brought by them to redeem
the mortgage and obtain possession of the property :
— Held, that the eiJect of the bond ^^'as to create a
simple mortgage, and not a conditional deed of sale ;
and that the proceedings taken under the decree
of 3rd November 1860, and the order made therein
of 17th July 1862, by virtue of which the mortgagees
obtained possession of the mortgaged property,
did not operate so as to extinguish the ric'ht of
redemption. The rule that a bai-bil-wafa do'es not
become absolute upon breach of the condition as to
payment, without proceedings for foreclosure,
obtains in the Central Provinces of India. Gokul i
Doss V. Kripakam . . 13 B, L. R. P. C. 205 I

57.

— . — Deed of sale con,-

vertible rnto a mortgage — Construction of deed.
Where a deed, which on the face of it was des-
cribed as a mortgage, stated that the grantee was
already in possession under a previous mortgage by
the grantor and was under the second deed to re-
ceive the profits in liquidation of interest so far as
they would go, and that the grantor was not to be
liable to repay the principal money or such balance
of interest (if any) as might accrue upon it, unless he
adopted a son, and the grantee, unless that event
happened, was to enjoy the property conveyed in

MORTGAGE— cow«.

1. FORM OF MORTGAGES-fon<(?.
right of purchase for the sum (principal and inter
due to him -.—Held, that the deed was a sale lie
to be converted into a mortgage, and not a ni(
gage liable to be convei-ted into a sale. Houxirt
Harris, 1 Ver. 190 ; Ramn v. Chinto, 1 Bom. 1
Shankurbhai v. Kassihhai, 9 Bom. 69, refer'rec i
and distinguished. Suhhabhat v. Vasudevb ■
I. L. R. 2 Bom. ;

58. — Deed of /,

convertible into a mortgage— Construction of n
—Redemption, right of— Alienation of imrri'
j able -property. Where the grantor executed to le
! grantee a document reciting a mortgage by le
j former to the latter of certani lands for R12o n
j which R200 were then due from the grantor tc le
grantee, and containing an agreeroent that i«
j grantee should pay R75 to another creditor otie
grantor, and purporting, in consideration of F75
so made up, absolutely to sell and convey the ir-t-
i gaged lands to the grantee, and the grantee execijd
I to the grantor a document of the same date reciif
{ the sale of the mortgaged lands by the grantcto
! the grantee for the consideration of R275, id
j covenanting that the grantee should reconve to
i the grantor the lands, "the subject of the grar if
the^grantor should repay to'the grantee the m of
R275 within a certain period, and providing ut,
^ in case of default in such payment within ch
period, the covenant for reconveyance shouldio-
come null -.—Held, that the transaction was aile
and not a mortgage, and that, consequently. he
grantor had no right to redeem the lands afta he
j expiration of the period so fixed for the payme of
I R275 by the grantor to the grantee, there beirno
evidence or allegation that, at th. date of the e;;u-
tion of the two documents, the sum of R275'-a3
an insuflScient consideration for the sale of the If is,
nor any stipulation that the grantee should accmt
for the rents and profits received by him, oriat
the grantor should pay interest on the R27oiot
anything to show that the grantor remaini in
possession after the execution of the two docuiyta,
or that subsequently to that time any adv tis
were made by the grantee to the grantor c
security of the lands, nor anything in either
ment which pointed to a right on the part
grantee to recover from the grantor the si;
R275, or any part of it, before, at, or aft^
period named for the repurchase. The law u • -
down in Ramji v. Chinto, 1 Bom. 199, viz., Cf» »
mortgage always a mortgage, is still in force (tlio
Presidency of Bombay with regard to morl'^
containing clauses of conditional sale, whetheJxe-
cuted before or after 1858. The ancient la'ftnd
usage of the country respecting gahan lahan ^^rt*
gages, and generally the alienation of immo^'b'e
property, discussed. Kapuji Apaji v. Sbx-A'W
Marvadi . . . I. li. R. 2 Bon231

59. Vendor anV^-

chaser — Sale. Held, that ^n agreement by tbpuf-
chaser of certain immoveable property t!t '•
should, on payment by the vendor of a certait'""
within a specified time, be restored to the v*i<J^

( 8365 )

DIGEST OF CASES.

( S3CG )

iORTQAQ'E—conid.

1. FORM OF MORTGAGES— fon/fZ.
nd that on failure of such payment it should
ocome the absolute property of the purchaser,
'. id not create the relation of mortgagor and mort-
agee between the parties, and that, upon the
ondor's failure to comply with the terms of the
greement. the property Vested in the purchaser.
!Hrp Kr.vR v. Muhammadi Begam

I. L. R. 6 All. 37

60. '- — Sale of perpe-

utl lease, with conditional agreement to sell back

I) vendor, not amounting to mortgage — Reservation
U right to re-prtrckase — Bight to redeem. A pur-
'haser of land, another person advancing the pur-
jhase money for him, granted to the latter a moku-
Ti pottah or perpetual lease, not as a security for
lilit, but as an absolute acquittance of it. At
tuio time an ikrarnama ^vas executed, whereby
I- stipulated that when the grantor or his heirs
lould pay to the gi'anteo or his heirs the amount of
be above debt without interest, out of his or their
|wn moneys without borrowing from any other per-
\m, then the pottah should be cancelled, the grant-
jr having no claim to mesne profits during the pos-
iission of the raokuraridar. Held, that, with regard
) the terms of the instruments and the circum-
Ances under which they were made, this transac-
on was not a contract of mortgage, but evidence
|f a sale and acquittance of a debt with power re-
prved to the vendor to re-purchase under certain
pnditions personal to him. Situl Pukshad v.

jrCHMI PrRSHAD

I. L. R 10 Calc. 30 : 13 C. I... R. 382
L. R. 10 I. A. 129

61. .^ Vendor and pur-

haser — Conditional right of re-pnrchace — Redemp-
on, suit for. A, having previously hypothe-
ited certain land to B, executed a conveyance of it
I him in 1873 for a consideration which was now
und to have been an inadequate price. On the
ime day, B executed to ..4 a " counterpart docu-
ent " by which he covenanted to reconvey the
nd and return the sale-deed if the sale amount be
l>aid to him in cash on 27th ilay 1875. The docu-

'< contained no provision as to interest, and
ed no power for the purchaser to recover
;'urchase-money. In 1888 ^'s representative
Itjging that the transaction evidenced by the above
icuments was a mortgage, brought a suit to re-
it. Held, that the transaction did not con-
itut« a mortgage, and that the plaintiff was not
ititled to redeem. Ayyavayyar v. Rahimansa
I. li. R. 14 Mad. 170

iB2. Sale, ivith right

served of re-purchase tcithin a period, distin-

tished from mortgage — Construction of documents

sale and of agreement for re-sale. A document

irporting to be one of sale, though it is accom-

inied by a contract reserving to the vendor a right

re-purchase the property sold on repaying the

'"■^hase money within a certain time, is not on

account to be construed as if it were a mort-

Alderson v. White, 2 De G. <fc J. lO'i, re-

MORTGAGE— co«/r/.

1. FORM OF MORTGAGES— co«?rf.

ferred to and followed, the law of India and of

England being the same on this point. Bh agwax

Sahai v. Bhagwa.v Dix . I. L.R. 12 All. 387

L. R. 17 I. A. 98

63. Mortgage by conditional

bill of sale— Joint property held hcnami in name
of co-sharers — Interest of mortgagee. An estate was
bought benami in the name of A by the father of
A. After the father's death, a sura of money was
raised by conditional bill of sale signed by A as pro-
prietor and by his brother B as raotullah. After-
wards, and after the death of B, and after B's heirs
had separated from A, A raised a further sum by a
bill of sale, reciting the former conditional bill of
sale, and that the additional sum was raised to dis-
charge the same. Held, that, if the grantee took
with notice that ho was entitled to a half share only
of the estate, the additional charge would operate
as a mortgage of such half share only ; but that
portion of the money for which the original bill of
sale was given was a charge on £'s share as well as
on the possession of his heirs. Kishex Chixder
Ghose v. Nuxd Kishore Sixgh . Marsh. 651

64.

Change of name

in Government records — Subsequent agreement
re-transfer land in Government records on payment
[ of debt. In 1877 the plaintiff, being indebted to the
defendant, transferred certain land to the defend-
ant's name in the Government records. In July
, 1879 the defendant executed the following docu-
j ment t<j the plai-.tiff reciting the previous transfer
j and agrcehig to re-lran-fer the land to the jlaii, tiff's
! name on the 12th July 1880 if the debt which \\ ould
I then be due should be paid of : " In the village of
Behra,mpur is your (plaintiff's) field, Survey Xo. 14t3,
measuring 5 acres 3 gunthas, bearing assessment
I R16. You (plaintiff) have got it tran.sforred to our
j name. That field therefore stands in our (defend-
ants') name in the Goveniment reconls. You
i owe a debt to us. On account of that debt you
have transferred it to our name .... The field
i shall be re-transferred to your name when you ro-
i pay the said debt to me. You have cultivate*! tho
field for the produce of Samvat 1936, and a Ka-e in
! respect thereof you liavo this day passed to mo.
! And a stamp paper was purchased at the time of the
I transfer for the execution of this agreement, but no
agreement was then passcl. This agreement is
therefore this day passed to you when tho lease is
executed. And "you owe me («) tlobt liearing
interest. I will pay out of my pocket tho expenses
I to be incuiTed at present in cultivating tho field.
[ The debt duo to me would in all amount to RIOO.
If you repav all those rupees duo to mo till the
! Vaishakh Sudh tith. Samvat 103t;. I will take thorn
and transfer the fiehl to your name. And if you
fail to pay (them) till Baisakh Sudh 4th. you will
have no claim whatever to tho .said field. I shall not
take the rupees after the 4th (chauth), nor shall I

give (or transfer) tho field to you I shall

I lease the field to any one I like without keeping any
1 claim of you as regards cultivation, manure and

( 8367 )

DIGEST or CASES.

{ 8368 )

MORTGAGE— co»?i.

1. FORM OF MORTGAGES— conirf.

hedge. You have no claim or right whatever . .
. ." . " The plaintiff brought this suit to redeem
the land, alleging that it had been mortgaged to the
defendant, and that the debt had been paid off.
Thi- defendant contended that the transaction in
1877 was not a mortgage, but a sale of the land to
him, and that the document of July 1879 was an
agreement to re-.sell it to the plaintiff. Held, upon
the evidence, that the transaction in 1877 was a
mortgage to the defendant, and not a sale. Patel
Ranchoxd MoPvAR v. Bhikabhai Devidas

I. L. R. 21 Bom. 704

65. Sale vith a right

of re-prircJiase — Conditional sale effected by two
contemporaneous deeds — Evidence dehors the docu-
menis shoiving what the transaction really was —
Intention of parties. The plaintiff and the defend-
ants executed upon the same daj- two documents.
The one purported to be a deed of absolute sale of a
certain estate by the plaintiff to the defendants.
The other was an agreement by which the defend-
ants covenanted, upon payment of a certain sum by
a specified date, to reconvey the property sold by
the first-mentioned deed. Held, that evidence was
admissible dehors the documents to show that the
intention of the parties was not to effect an out-
and-out sale with merely a right of re-purchase
under certain conditions left in the vendor, but to
constitute a mortgage by conditional sale or bai-bil-
wafa. The mere fac-t of "a deed of absolute sale being
accompanied by another giving a right of re-pur-
chase will not, for that reason alone, constitute the
transaction one of mortgage, but the intention of
the parties must be gathered from the terms of the
deeds or from the surrounding circumstances or
from both. Alderson v. White, 2 De G. d- J. 105 ;
Lincoln v. Wright, 4 De G. d- J. 16 ; Bhagimn Salmi
V. Bhagwan Din, L. R. 17 I. A. 98 ; I. L. R. 12 All.
387 ; Ali Ahmad v. Rahmat-vllah, I. L. R. 14 All.
195 ; Ramasami Sastrigal x. Samiyappanayahan, I.
L. R. 4 Mad. 179 ; Bapuji Apaji v. Senavaraji Mar-
vadi,I.L.R.2Bom.231;BhupKnar v. Muhamdi
Begam, I. L. R. 6 All. 37 ; and Venkappa Cheiti
V. AJcku. 7 Mad. 219, referred to. Balkishan Das
V. Legge . . . I. L. R. 19 All. 434

Affirmed by the Privy Council.

I. li. R. 22 All. 149

L. R. 27 I. A. 58

4 C. W.N. 153

66.

Deed of condi-

tional sale — Bai-hil-wafa, nature of — Transfer of
Property Act (IV of 1882), s. 58 — Pre-emption,
suit for. The transaction known to Mahomedan law
as a bai-bil-wafa is a mortgage \\ithin the meaning
of s. 58 of Act IV of 1882, and not a sale. The
plaintiff in a suit for pre-emption had, prior to the
sale of the property claimed, executed a deed in
re.spect of his share in the village in virtue of which
he claimed the right to pre-empt, the material por-
tion of which deed was as follows : " Thirdly, if I,
the vendor, or the heirs of me, the vendor, Ali Jan,
alias Ali Ahmed, should pay off the entire considera-

[ MORTGAGE— conf^.

1. FORM OF MORTGAGES— cojiYrf.

I tion money mentioned above on the Puranmashi I

Jeth Sudi^ 1299 Fasli to the said purchaser, slj

j should without any objection or hesitation recei-

I the money, and, returning the property sold de

cribed above in the document to me, the vendc

j revoke the sale. " Held, that this deed was a bai-b

wafa or mortgage by conditional sale, and that, .

the conditional sale had not become absolute at tl;

1 time when the right of pre-emption accrued, tl

conditional vendor or mortgagor had still a subsig,

I ing right of pre-emption. Bhagivan Sahai v. Bhn

wan Din, I. L. R. 12 All. 387, distingui.shed. A

Ahmed v. Rahmatullah . I. L. R. 14 All. 18

[ 67. Wazib-uUarz-

I Co-sharer — Mortgagee of a co-sharer. Two cj

I sharers in a village, A and G, mortgaged their p.i

prietary interest, with possession, to L. L mac

1 either an assignment or a sub-mortgage of her v

terest under the mortgage for a term of twenl

years to B, with a foreclosure clause in case of noi

payment. B afterwards transferred to X for 8

! unexpired period of sixteen years and eleven montl

' the interest in the property which he had acquire

I from L. One N L, a co-sharer in the village, ther

upon brought a suit for pre-mortgage in respect t

I the transfer to X, on the basis of the village wazili

j ul-arz, which ga^-e a right of pre-emption or pn!

j mortgage Mhen the share of a co-sharer should l!

sold or mortgaged. Held, that inasmuch as B coul

not be regarded as co-sharer, no right of pre-mor

gage aro^e in favour of N L in respect of the tran

J fer of the mortgagee interest from B to X. Til

principle laid down in Khair-un-nissa Bibi v. Arm

Bibi, Weekly Notes All. (1887) 93, and in A

Ahmed v. Rahmat-ul-llah, I. L. R. 14 All. 190, fc

I lowed. Nand Lal v. Bansi. I. L. R. 20 All. 1

I 68. Anomalous mortgage-|

! Transfer of Property Ad (IV of 1882), ss. 5S, cU. (l\

(d), and 98 — Usufructuary mortgage — Simple mofl

gage — Suit by mortgagees for recovery of debt and, \\

default of payment by mortgagors, for foredosu

and possession. A mortgage-deed (1) put the mor

gagees in possession of the mortgaged poperty, ar

authorised them to retain possession until payme

i of the mortgage-money, the mortgagors being give

credit of all profits recovered from the mortgage

property over and above the Government asses

i ment, and (2) contained a personal covenant by tl

mortgagors to pay the mortgage-money, and i

implied agreement that, in the event of non-pa;

ment, the property should be sold (the debt to i

recovered from the mortgaged land and from tl

I persons and from other property of the mortgagors

Some time after the date of the mortgage, the moi

i gagees let out the mortgaged property to the mor

j gagors for a certain term, and, before the expir

tion of the term, the mortgagees brought a suit fi

I the recovery of the debt and in default of paymei

by the mortgagors, for foreclosure and possessio

Held, that, owing to the proviso (i), the mortgad

was usufructuary, within the meaning of cl. (d)

s. 58 of the Transfer of Property Act (IV of 18^-

( 8369 )

DIGEST OF CASES.

( 8370 )

MORTGAGE— conic/.

1. FORM OF MORTGAGES— co«W.

,ad, owing to the proviso (ii), it was a simple mort-
lage under cl. {b) of that section. The transaction
'as therefore an anomalous mortgage provided for
y s. 98 of the Act, being a combination of a simple
.ortgage and an usufuctuary mortgage. In such
case the rights and liabilities of the parties must
13 determined by the contract, as evidenced in the
ortgage-deed, and, so far as such contract does not
;tend, by local usage. Held, further, that, though
o plaintiffs were not entitled to regain possession,
;oy having let out the property to the mort-
Igors for a term, still that circumstance did not
ifect the distinct and independent right of the
iiintifis to sue for the mortgage-monej- and to
'•tain a decree for sale of the mortgaged property.

'ARCH.\XD LaKHMAJI V. KlLA MoRAB (1903)

I. L. E. 27 Bom. 600

69. Anomalous mort-

'■/e — Transfer of Properf)/ Act (IV of 1SS2),
I 68 [d), OS — Vsufruduarn mortgage. A deed
1 mortgage executed in 1879 for a consideration

R300 i)rovided that the term of the mortgage
mid be four years certain ; that certain interest
i:)uld be payable ; that the mortgagee should have
|5session ; that the profits should be appropriated
ijit in lieu of yearly interest and any balance ap-
■Dpriated in payment of the principal debt ; and
ijit the mortgauor should be entitled to redeem if
t| principal and interest were paid at the expiration
dthe four years. The mortgagee never obtained
jisession and in 1882 he brought a suit against the
irtgagor to recover the un]iaid interest then due, |
£ 1 obtained a decree, which was satisfied b_y the j
si? of ])roperty belonging to the judgment-debtor.
II1886 he brought another suit for recovery of the
I;acipal together with the residue of interest up to
t. date of suit. Held, that inasmuch as there was
t stipulation in terms that the mortgagee was to
rjiain in possession until [layment of the mortgage-
C|iev, the instrument did not strictly fall within
8j8('rf) of the Transfer of Property Act (IV of 1882),
I j as a usufructuarj' mortgage, and that the rights
ai liabilities of the parties must be determined in
iprdance with the principles enunciated in s. 98 of
tjt Act, I.e., as an anomalous mortgage. Held,
U|n the construction of the instrument, that it
be regarded as a usufructuary mortgage not
during the four years, but after their expiration.

-MATCLLA KhAX V. ImAM Ai.I

I. L. B. 12 All. 203

?• Anomalous mort-

— Right to 'possession — Transfer of Property
'JV of 1SS2), s. 9S. Two out of three co-par-
rs executed in favour of a creditor in respect of
I belonging to the co-parcenary an instrument
|h contained the following; terms : " As we have
ived R500, you will, in lieu of the said amount
interest, enjoy the said property for three years
irtue of Arakatta otti .... on the conclition
.'■n the expiry of the said three years, we sliould
em the land without paying either principal or
est. You will on the expiry of the said period.

MORTGAGE— co«/</.

1. FORM OF MORTGAGES— <:o«?c/.

deliver possession of the ^aid immoveable property
without raising any objection." The creditor ob-
tained possession of onl\- part of the land. Held,
that the instnimoiit was an anomalous mortgage,
and that the mortgagee was liable to ejectment
after the expiry of the three years. Visvalinga

PiLLAI V. PaLAXIAPPA CIIETTI

I. L. R. 21 Mad. 1

71. Covenant to pay pro-
duce of land— DeLkha 11 Agriculturist.s' Pu-
lief Act (XVII of 1S79), a. 22— '' Specifically
mortgaged'''' — Transfer of Property Act (IV of
1SS2 ), s. 5S. Bhiku, an agriculturist (father
of defendants 3 to .'i ), borrowed in 1800 a sum
of money from the plaintiff's mother, Yesubai,
under a bond, whereby he mortgaged his house
as security, and also covenanted to pay each year
to Yesubai half the produce of certain land a.s inter-
est and the other half in reduction of the principal,
and in case of default she was to be at liberty to
let the land to others and take the profits. Yesu-
bai subsequently sued to recover the debt, and
obtained a decree directing the sale of the land.
In execution of this decree, the land was sold on
the 5th June, 1S9G, and was bought by the plaint-
ia who now sued for possession. It was contended
on behalf of the defendants that the covenant to
pay the produce did not amount to a " specific
mortgage " of the land, and that consequently
the sale to the plaintiff was invalid under s. 22
of the Dekkhan Agriculturists' Relief Act (XVII
of 1879). Held, that the land was specifically
mortgaged for the repayment of the debt, and
that the sale was valid and the plaintiil entitled
to recover possession. Balshet v. Dhondo
Ramkrishxa ( 1901 ) . I. L. R. 26 Bom. 33

72. English mortgage— 7 m /o-

fer of Property Act (IV of l^yJ ), s. -i (O
— Covenant for reconveyance not limited to time
stipulated for repayment of mortgage-money. The
three essentials of an English mortgage, as defined
in s. 5S (e) of the Transfer of Property Act. are
(i) that the mortgagor should bind himself to
repay the mortgage-money on a certain day,
(ii) that the property mortgaged should l)e trans-
ferred absolutely to the mortgagee, (iii) that such
absolute transfer should be made subji-ct to a
proviso that the mortgagee will reconvcy the
property to the mortgagor, upon payment by him
of the mortgage-money on the day on which the
mortgagor bound himself to repay the same.
A deed of mortgage recited that the mortgagors
"hereby mortgage and assign to the mortgagee "
the mortgaged property. Sembk : — That (though
it was doubtful if such an assignment was really
an absolute one) the assignment was sufticient
to fulfil the second requisite of an "English mort-
gage." The proviso for roconve\anee in the deed
was as follows :" L'pon repayment to the mort-
gagee of all sums due to him by the mortgagors,
the mortgagee shall reconvey the said property
to the mortgagors, " etc. Held (by the Division

( 8371 )

DIGEST OF CASES.

( 8372 )

MORTGAGE — co?ifcJ.

1. FORM OF MORTGAGES— coKcZcZ.

Bench), that the transaction could not be regarded
as an English mortgage, there being no words
importing that the covenant to reconvey was
dependent upon the repayment of the mortgage-
money being made at the stipulated time and that
it should not be enforced in default of repayment
at that time. Narayana Ayyar v. Venkata-
EAMAXA Ayyak (1902) I. L. E. 25 Mad. 220

I MORTGAGE— coH<(i.

2. CONSTRUCTION.

Rights of mortgagee — Pro-

viso in case of (tlienation of viorfgaged property.
€ertain words in a mortgage deed stipulating
that in the event of the property mortgaged being
sold in execution of a decree, or otherwise alienated,
the mortgagee should recover from any other
property in the possession of the mortgagor,
whose person should also be liable for debt, were
construed as merely intended to give some sup-
posed further security to the mortgagee, but not
to take away his right to issue notice of foreclo-
sure and obtain possession by a suit, even
though the mortgaged property were sold away.

ACHUMBIT MiSSER V. LaLLA NuND RaM

11 W. R. 544

2. ^ — — Construction of

instrument of w,ortgage. An instrument, mort-
gaging villages for a sum payable within a certain
period by instalments, and making distinct pro-
vision that, upon default in payment of an instal-
ment the mortgagee by his servants was to take
possession, and after paying the revenue and the
expenses of collection, to credit the balance
towards payment of the instalment, also contained
the following : ' ' Should, on the expiration of the
term of this instrument, any m.oney remain due
then, till payment thereof, possession will continue
according to the terms herein set out. If I do not
accept this, then, as soon as the breach of promise
occurs, they \\\\\ at the end of the year realize the
whole amount of instalment by sale of the villages
and of other moveable and immoveable properties
belonging to me." J^eW, that such an instrument
must be taken as a whole, and that the true con-
struction to be put on it should be that which,
being reasonable, would also give effect to all parts
of it. Held, accoi-dingly (on the contention that
these words negatived the mortgagee's right to,
take possession upon default in payment of an
instalment, leaving him only a right to proceed to
sale), that, as this construction would not give
due eilect to the first part of the instrument, it
must yield to a construction which not only would
give such effect, but would also be the more reason-
able one, viz., that the mortgagee should take
possession upon such a default, and also might
sell if the mortgagor objected to his applying the
rents in reduction of the principal and interest
■due. Deputy Commissioner of Rae Bareli v.
Eampal Singh

I. L. R. 11 Calc. 237 : L. R. 12 I. A. 1

CONSTRUCTION— co7ifcZ.

Arrangement for repay

ment by lease— 5'e<-o^ of rent. On the 1st
November 1860, A covenanted to pay to
R 80,351 with interest on the 16th of May 1870, an
pledged certain property for repayment thereof. J
the time of the mortgage this property was held b
B, the mortgagee, under a lease which expired o
the 10th of September 1870. On the 5th of Noven
ber 1866 .4 granted to i? a lease of the propert
hypothecated for a term of seventeen years fro
the 10th of September 1870 at a rent of R20,5.^
a year. The lease recited the mortgage-del
and the necessity of providing for payment of i
and contained an agreement that out of tl
annual rent B should retain R16,500 on aecovir
of the debt and pay the remainder to ^. Id
suit to redeem and cancel the bond and lease :-
Held, that they did not form one mortgage trai
saction, but were separable and separate, and thi
A would only be entitled to set off the rent retaim
against the mortgage-debt and interest, ar
thenceforth to receive the full rental of B20,3(
a year for the term of the lease j-et unexpire

JOOMNA PeRSHAD SoOKOOL V. JOYRAM LaL MaH"

2 C. L. E. S

4. Operative words in a mor

gage-deecl — General language. A mortgage-dei
having specifically charged the property original
offered as security, extended the operation
the mortgage by general language to inclu.
all interests in the mehals, villages, and Ian
comprised in the sanad of a talukhdari esta'
It was now questioned whether one of the villag
comprised in the sanad was part of the mortgag
property. The operative words, uncontroll
by anything in any recital, declared all the abo
subject to the mortgage. The deed was accoi
ingly held to include the village in qnestic
effect being given to the operative words in th
ordinary meaning. Land Mortgage B.4NK
India v. Abui. Kasim Khan

I. L. R. 26 Calc. 31

5. Previous mortgage—?'
under mortgage-decree — Effect of removal oj
cumhrances hy mortgagor — Lis pendens. Whi
person mortgages his interest in a propert.
that interest being restricted or limited in ^'
manner at the time of the mortgage, — the ni
gagee's lien is not limited to the interest
restricted and does not cease on the restricti.
being removed. The removal of encumbran',li
from the estate of a mortgagor effected by hiro?
will, as a general rule, enure to the benefit of '•
mortgagee by increasing the value of the lattt
security. Shyama Charan Bhuttachakjee
Ananda Chandra Das . 3 C. W. N. 2

6. Mention inrih

gage deed of another debt due to mortgagee distil
from sum advanced at date of mortgage — CUiusi'^
deed undertaking to pay off old. debts when tak'i
bad: the land—OU debt not a charge on land,
redemption conditional on payment of both dt

( 8373 )

DIGEST OF CASES.

V 8374 )

M ORTGAGE— co» tcl.

2. CONSTRUCTION— confrf.

I' mortgaged certain land to the defendant's
father for a sum of R6-4 advanced by the latter
at the date of the mortgage. The mortgage-
;leed stated that V owed the mortgagee another
lebt of RlOO, which was due on a separate
bond and it contained a clause in the following
terms: "The principal sum of huns (coins) due
m that document, as also this document, I will
pay at the same time, and take back the land
ilong with this document as well as that docu-
iBient. Till then you are to continue to enjoy

!:he land " The plaintiff,

;iaving obtained a decree against the mort-
.^agor, attached the land in execution. The
'efcndant (son of the original mortgagee) there-
'-pon claimed that he held a mortgage upon
t to the extent of R16i. On the 9th March
.1881 the Court executing the plaintiff's decree
^nade an order allowing the defendant's claim
)nly to the extent of R64, and directing that
1 he land should be sold subject to the defendant 's
,icn for that sum. The plaintiffs bought the land
it the execution sale, and offered the defendant
[il64 in redemption of his mortgage, which the
lefendant refused. The plaintiffs then brought
ihe present suit to recover possession. Held,
Ihat the charge on the land did not include the
jild debt of RIOO. There were no words in
ihe mortgage-deed expressly making that debt a
harge on the property. The provisions in the
leed only made the equity of redemption condi-
ional on the payment of both the debts. Quo re;
Vhether, under the circumstances of the case,
he purchaser at the execution sale would be
lound by such condition. Yesiivant Shenvi
I. ViTHuBA Sheti . I. L. R. 12 Bom. 231

7. _ Priority of mortgage —

intention of preserving a v^ior security presumed —
}fortgagee— Mortgagor. On the 29th November
;882 H mortgaged to the plaintiff his one-third
hare in a house and garden to secure R 1,000
>ith interest at 12 per cent. On the 3rd January
1884 H mortgaged his one-third share in the
:ome house to a third person to secure R 1,000
.ith interest at 18 per cent. On the 14th May
j^84 H and his two brothers mortgaged to the
.'laintiff the entirety of the said house and garden
'o secure R 3,400 with interest at 18 per cent,
''his last mortgage recited the mortgage of 29th
Ifoyember 1882, and a further loan of RIOO by the
plaintiff to H, and contained the following clause :
j Now in order to liquidate the said debt, and on
jCcount of our necessity, we three brothers do
Q18 day mortgage to you whatever right, title,
|nd interest we have in the said two premises
ind take the loan of R3,400 ; out of this money
j-e have also liquidated the said debt, therefore
jjir mterest of the said money we are paying at
|he rate of Rl-g per month." Held, that the
raneaction of the 14th May 1884 did not amount [
b payment of the original debt, but was in reality j

further advance and a fresh security for both i
le eld debt and the fresh advance, on different '

MORTGAGE— co«W.

2. CONSTRUCTION— con/<Z.
terms as to interest, the old debt remaining un-
touched ; but that, even had the original debt been
satisfied thereby, that fact would not have neces-
sarily destroyed the security, the presumption
bemg, unless an intention to the contrary were
shown, that the plaintiff intended to keep the
security alive for his omu benefit. Oolaldaa
Oopaldas v. Puranmal PransuHdas, I. L. R. 10
Calc. 1035, followed in princinle. Gop.al Chandeb
Seeemaxy v. Herembo Chunder H' .lder

I. L. R. 16 Calc. 523

, ,S- — ,: Mortgage of a portion of

oh.&g—Fartimilars of property slated in dcrd —
Lending description— Falm demonMratio—Bhag—
Bom. Act V of 1S62, s. 3. A mortgage-deed of cer-
tain bhagdari lands stated that ' ' all the properties
appertaining to the entire bhag" were thereby
mortgaged to the plaintiff. The bhag comprised
inter alia, four gabhans (building sites). But
the clause, which set forth the particulars of the
property mortgaged thereby, specified onlv two
gabhans, one only of which belonged to the' bhag
and the other did not. The deed then proceeded":
"According to these particulars, lands, houses
and gabhans, barnyards, wells, tanks, padars and
pasture lands also, together A\ith whatsoever may
appertain to the bhag — all the properties apper-
taining to the whole bhag have been mortgaged

and delivered into possession

There is no other property appertaining to the
said bhag of which mention is not made here.
HeU, ih&t the particulars were 'the leading de-
scription,' and the supplementary description of
them as constituting the entire bhag should be
regarded as falsa defnonstraiio.'" Hehl. a.\^o. that
the mortgage, so far as it included property belong-
ing to the bhag, was void under the third section
of Bombay Act of 1862, but was valid as to pro-
perty not comprised in the bhag. TribhovaxdaS

JEKISAXDAS v. KeISHXARAM KlBERRAM

I. li. R. 18 Bom. 283

9. Post diem interest — .i/«a/i-

ing of the term ''sudi.'" The use of the term "si.di "
(bearing interest) in a mortgage-deed held not to
imply a covenant to pay f>ost diem interest,
there being a specific agreement to repay the
mortgage-debt, principal and inteiist, in seven
years. Rikhi Ra.m v. Sheo Parshax Ram

I. L. R. 18 AIL 316

10. — Conditional saIe--A'';rrtnia-

mah. The appellant became security for the
payment by the respondent of the CJovemment
dues in respect of a mootah then about to be sold
for those dues, and by the first karaniamah entert-d
into by the parties it was stipuh\ted that, on default
of the respondent to pay any part of the instalments,
the appellant was to obtain a transfer of the pro-
perty, and to retain it, after returning to the res-
pondent the money which may have been paid
by him. By a second karamamah entered into
on the same day, the plan of a conditional sale
provided by the first karamamah was reduced

( 8375 )

DIGEST OF CASES.

( 8376 )

MORTGAGE— conii.

2. CONSTRUCTION— cowYfZ.

to a mortgage, with a covenant between the
parties that whenever the appellant should take
possession of the mootah for the purpose of
enabling him to discharge the amount for which
he liecame security, he should restore the mootah
to the respondent as soon as he was reimbursed
all that he had advanced out of the rents and pro-
fits of the mootah. Held, that the transaction
was in the nature of a mortgage, and that there
was no such inconsistency between the. two instru-
ments as to make the second invalid. Kakeela-
POODY Jagganadha Raz v. Vutsavoy Jagga-

NADHA JaGAPUTTY RaZ

5 W. R. p. C. 117 : 2 Moo. I. A. 1

11. • Relief after time

named in conveyance. Plaintiff executed to defend-
ant a document of which the following is a trans-
lation : ' ' The muddata kriyam executed on the
10th April 1S35 by the Madhugula zamindar to the
zamindar of Bobbili. As I have conveyed to you
as sale for R6,000 the Papuchetti Seri adjoining
the land of kasbah Jaggnanthapuram in the
zamindari of Madhugula, they are given you for
absolute sale, so the said sale money has been
received at the time of sale. In the event of my
paying you the principal R 6,000 within six
months from this date, you must give back the
said land Papuchetti Seri to me. In the event
of our not being able to pay according to the
said stipulation, you should hereditarily from son
to grandson enjoy the produce of the said land
yourself paying to Government the assessment
fixed on a subdivision, reckoning this sale money
to be a pure sale. This muddata kriyam has been
executed with my consent." Held, that this
document was a sale with a condition for repurchase.
The decision of the late Sudder Court of Madras
have carried the doctrine of relief after the time
named in the conveyance so far as to say that
wherever the security for money is an object of
the transaction, no sale can become absolute.
The High Court have followed the English rule
and have held the question one of construction,
admitting however, for the purpose of the con-
struction, other documents and oral evidence.
Lakshjii Chellian Garu v. Krishna Bhupati
Devu Mahaeaz Gartj . 7 Mad. 6

12.

Constriictic

deed — Suit for possession. The defendants borrow-
ed money from the plaintiff without interest, but
executed a deed stipulating that the sum borrowed
was to be repaid on a given date, and that, if not
paid then, the defendants should execute a
patni lease of certain properties set forth in the
deed, the sum borrowed being considered as a
bonus for such lease ; and that, if the borrowers
did not execute such a lease, this deed should
be counted as a patni pottah. The money not
having been paid, and the lease not executed, the
plaintiffs sued for possession. Held, that they
were entitled to possession on the footing of a patni
from the date of suit, and that the transaction

MORTGAGE -contd.

2. CONSTRUCTION— cowicZ.

was not a conditional sale, but a contract to create
a patni, for a certain consideration unless that
sum was paid on a particular date. Jusee-

MOODDEEN BiSWAS V. HtTROSOONDUREE DoSSEE

19 W. R. 274

13. Mortgage — Be-

demotion, right of — Interest — Construction of deed.
In Chait 1275 Fasli (March 1868) M, having
borrowed RI1,200 from S, gave him a mortgage
by way of conditional sale of certain immoveable
property for a term of seven years, that is to say,
extending over the years 1276, 1277, 1278, 1279,
1280, 1281, and 1282 Fasli. The sum payable
as the interest of each of these years was fixed at
El, 680. The mortgagee obtained paymeii;
of his interest for four years from 1276 to 1279
Fasli inclusive by bringing suits against the mort-
gagor. The interest for 1280, 1281, and 1282
Fasli as well as the principal sum remaining unpaid,
the mortgagor sued for redemption of the mort-
gaged property on payment of the principal sum
and the interest of the last year, 1282
Fasli, only, contending that the interest of
the other years, 1280 and 1281 Fasli, was
not secured on the mortgaged property,
but was, under the terms of the instrument "of
mortgage, realizable by suit from his non-hypothe-
cated property and person. Held, on the construe-^
tion of the instrument of mortgage, that the|
mortgage was not redeemable on payment of;
the last year's interest only, but on payment of
the interest of the other years as well. ScRJC
Prasad v. Maxscr Ali Khan

I. Ii. R. 5 Ail. 462

14.

Covenants as ((

payment of interest — Defatdt in payment of interest.
A mortgage-deed contained covenants for payment
at the expiration of a year from its date, witLj
interest to be paid month by month in the montl;
following that for which it should be due, and ti
run on from the date of the mortgage at the sarri'
rate until the money borrowed and the interc-
should be paid. It was also covenanted that
if before the end of the year the mortgagor should
make default in payment of interest during onij
month after it had become due, in that case thij
principal and interest should thereupon becom'l
claimable. With the latter requirement the mort
gagor failed to comply, not paying the interc^-
within the stated time.'^ Held, that, on the true coi
struction of the deed, this default having takr:
place, this suit would lie for both the princii'
and interest accrued due within the year. 1 '
Htean Sew v. Abu Zaffer Koreshi

I L. R. 27 Calc. 931

L. R. 27 I. A. 91

4 C. W. N. 55

15. Redemption

Condition precedent. In a mortgage-deed executi
by a Mahomeden to a Hindu in 1820, it was stipu
lated that the principal and interest were to h

( 8377 )

DIGEST OF CASES.

( S378 )

MORTGAGE— co«f(?.

2. CONSTRUCTION— cojiifZ.

epaid within five years, that an account was to
ae taken at the end of five j-ears of the profits
if the lands and any sum found due to the mort-
:agee, after deducting the profits of the lands
rom the debt, was to be paid to the mortgagee,
md that the payment was to be endorsed on the
)ond and the lands resumed ; and it was provided
hat, if the amount due to the mortgagee at the
expiry of the said term was not paid, the lands were
:o be treated as sold and delivered, instead of mort-
laged. Held, that, no account having been taken
is provided, the mortgage was redeemable within
'ixty years. Mavxjlali Amirudin Sharif ;; .
huNDU SoBHANADRi . I. L. E.. 6 Mad. 339
1

Usufructuary lease — Condi-

16.

(OJW of huq-i-ijara to he reserved to mortgagor — Con-
■truction of mortgage-deed. The defendant advanced
'i sum of money to R and T, who granted him as
l;ecurity for repayment an ijara lease of a mouza
I representing that they were entitled to 16 annas),
'n which lease a jumma was reserved, a portion
Vhereof was to be applied to the discharge of
interest to the defendant and a small sum to go to
Ihe mortgagors as huq-i-ijara. After execution
If the ijara, the defendant was dispossessed of 8
'lonas b}' a third party who claimed to be a sharer,
|nd he had to sue for and obtain a partition of
Ihe remaining 8 annas which he retained, for what
(t was worth, as security. The plaintiffs bought
he mortgagors' share, and now sued for the
uq-i-ijara originally reserved. Held, that the
aortgagors could not claim any benefit under the
iara lease until all the benefits which it pretended
0 secure to the defendant were realized by liim.

ICHUMBIT SlXGH V. KeSHO LaLL

20 W. R. 128

17.

Usufructuary mortgage -

ondition for reconveyance of property. In a usu-
uctuary mortgage it was stipulated that the
roperty was to be reconveyed on repayment of
he principal sum lent, but nothing was said as
3 interest. Held, that the condition implied that
he usufruct was intended to be received by the
lortgagee in lieu of interest, and tlierefore the
lere fact that the amount of the principal had been
?ceived from the usufruct was no ground for the
lortgagor being entitled to re-possession of the
roperty. Bunwareelal v. Mahomed Hosseix

HAN 2 Hay 150

18. — ■ Simple nsufruc-

tary mortgage — Right to have the property sold —
Hstinct coveiutnt to pay the principrd — Possession
lieu of intereH. A merely usufructuary mortgage
ill confer no right to have the mortgaged property
Id. But where there is a distinct covenant to
ay the principal, and the land is security for the
ime, the intention of the parties is that the
roperty should be sold. Such a transaction is a
mple usufructuary mortgage, and carries with
the right to have the property sold in default of
ayment of the principal. A mortgagee, who is

MORTGAGE- con^rf.

2. CONSTRUCTION— conW.

entitled to possession, in lieu of interest, and who
iloes not take pos-ession loses his right to interest
and cannot ask that the property be sold for
default in payment of interest, the propertj- being
security for the principal onlv. Mahadaji r. Joti.
1. L. R. 17 Bom. 425

19.

Power of sale-

Bom. Reg. V of 1827, «. 15, d. 3. Where a mort-
gage provided that the mortgagee was to take
possession of the land and enjoy the profits in
lieu of interest and the mortgagor was at liberty
to recover possession in any year on payment of
the principal amount : — Held, that the mortgage
was a usufructuary mortgage, and under the
circumstances of the case it was not the intention
of the parties that the property should be sold,
and that the mortgage-deed contained a special
agreement which took the case out of the provisions
of cl. 3, s. 15 of Regulation V of 1827, which was
the law in force at the time the mortgairc was
effected. Sadashiv Abaji Bhat v. Vvaxkatrao
Rasirao Shixde . I. li. R. 20 Bom. 296

20. Mortgage of a

mixed character partly simple and partly usufruc-
tuary— Decree for sale — Transfer of Property
Act {IV of 1SS2), s. 5S. In construing a mortcage
deed, the terms of which are of a doubtful character,
the intention of the parties, as deducible from their
conduct at the time of execution and other contem-
poraneous documents executed between them,
is to be looked to. Jlortgage-deeds of a mixed
character and other than those expressly defined
in s. 58 of the Transfer of Property Act, 1SS2, must
be construed as far as possible in accordance with
the covenants contained in them. Where a deed
is partly of the nature of a usufructuary mortgage
and partly of the nature of a simple mortgage, the
mortgagee is entitled to bring the mortgaize partly
to sale under the conditions set out in the deed.
Shunker Lall v. Poorriin Mai, 2 Agra loO ; Phul
Kuar V. Murlidhar, I. L. R. 2 All. 627 ;Jugal
Kishore v. Rnmsahai, All. Weekly Xotes (1SS6)
212 ; Umrao Begam v. Vali-idlah, All.Wcekly Xotcs
ilSSS) 171 ; Ramnyya v. Gnruva, I. L. R. 14
Mad. 232; and Sivakami Ammal v. Savundrain
Ayyan,I.L. R.17 Mad. 131, referred to. .Tafar
HcsEN V. Raxjit Sixqh . I. li. R. 21 AIL 4

21. Power to ctinctl

zur-i-peshgi lease. The words in a zur-i-peshgi
lease ' 'after the expiry of the term it will be compe-
tent to me (the mortgagor) in the month of Jeit
of any year 1 can to pay the zur-i-peshgi and cant el
the lease," were held to do no more than bar the
mortiiagor's re-entering in the midille of any year
in th'e event of the mortgagee's occupation con-
tinuing after the expiry of the lease, owins to the
mortgagor's default to pay off the loan, ami that
it contained no undertaking by the mort^atree
to hold on until it suited the mortgairor to pay liim
off Roy Gowree Scskuk v. Bholee PER-^jtAn
17 W. R. 2U

( 8379 )

DIGEST OF CASES.

( 8380 )

MORTGAGE —contd.

2. CONSTRUCTION— coK«i.

22. • Construction of —

Arrears of rent from tenants and mortgagors, right to.
By the terms of a deed of usufructuarj' mortgage
the mortgage was redeemable at the end of the
term by payment of the principal and the arrears
of rent due from the mortgagors and the tenants.
It was held, in a suit by the mortgagee (who was in
possession of the mortgaged property at the time of
suit), to recover the mortgage money and arrears of
rent, with regard to the rents due by tenants, that
it was clearly the intention of the parties that arrears
reasonably due were to be paid and not such as
arose from the negligence of the mortgagee, and
as it was not shown that the arrears due by tenants
could not have been realized by due diligence,
and the mortgafree had it in his power to realize
the rents, the mortgagee was not entitled to recover
such arrears. Choti Lal v. Kalka Parshad

7 W. W. 100

23.

Suit for excess of

Government revenue paid tinder. By the terms of a
deed of usufructuary mortgage the mortgagor ac-
cepted the liability on account of any addition tha.t
might be made to the demand of the Government
at the time of settlement. During the currency
of the mortgage tenure the mortgagees, averring
that they had to pay a certain sum in excess of
the amount of Government revenue entered in
the deed of mortgage from 1279 to 1281 Fasli,
sued the mortgagor to recover such excess. Held,
that, inasmuch as no settlement of accounts was
contemplated or was necessary under the pro-
visions of the deed of mortgage, and such deed
did not contain a provision reserving the adjust-
ment of any sums paid by the mortgagees in excess
of the amount of the Government demand at the
time of the execution of such deed to the time
when the mortgage tenure should be brought to
an end, the suit was not premature and could
be entertained. Nikka Mal v. Sulaima:^ Shikoh
Gakdner . . . . I. L. R. 2 All. 193

24.

Mortgagor and mortgagee

— Acts of mortgagor prior and subsequent to mort-
gage. A mortgagor's acts prior to the date of the
mortgage bind the mortgagee ; but his subsequent
acts do not bind the latter, unless they are done by
the mortgagor as agent for the mortgagee. Keish-
KAji Lakshmax Rajvade v. vSitaram Mttearrav
Jakhi . . . . I. L. E. 5 Bom. 496

Suit for arrears

of interest and sale — Suit before principal sum became
due — Eight of suit. A suit for arrears of interest
accrued due on mortgage and for the sale of the
property comprised therein was brought before
the date fixed for the repayment of the principal.
The mortgage provided that, on default of payment
of interest on the due date, interest should be
chargeable on the arrear, and also that interest at
an enhanced rate should be chargeable on the
principal. Held, that the plaintiffs was not entitled
to sue for the arrears of interest or to bring the

MORTGAGE— co/!<(?.

2. CONSTRUCTION— conic/.

mortgaged premises to sale before the principa
became due. Kanntj v. Natesa

I. li. R. 14 Mad. 47']

" Asmani sul

tani,'" meaning of the words — Destruction of suhjec
of mortgage— Cost of rebuilding by mortgagee
A mortgage-deed stipulated that, in the event o
the mortgaged house being destroyed "by asman
sultani" (i.e., evils from the skies or the king), th
mortgagor should rebuild it, and if he did not'do so
and if the mortgagee rebuilt it, he (the mortgagor
would pay the cost of rebuilding with interest ii
addition to the mortgage-debt. The house was de
stroyed by a fire which originated in anothe
part of the village, and the mortgagor failing .'
rebuild the house, the mortgagee rebuilt it. Tl
mortgagor brought a suit for redemption. Hek
that the repayment of the costs of rebuilding th
house was a condition precedent to redemptior
The destruction of the house was in the nature
of a calamity from heaven -n-ithin the meaning of tb
term asmani. Sakharamshet v. Amtha Dev;
Gandhi . . . I. L. R. 14 Bom. 2'

27. Intention i

parties — Mortgagee to have possession for ten yea:
and to receive profits in lieu of interest— Mortgagor ;
recover possession in the year he paid the morn
after the expiration of the period — Power of sa
— CI. 3, s. 15 of Bom.. Reg. V. of 1827 — Mortgagee
personal remedy against the mortgagor — Limitatioi
Where a mortgage-bond contained a stipulatic
that the mortgagee should enter into possessi(
of the mortgaged property and enjoy the rents ai
profits in lieu of interest for ten years, and th
after the expiration of that period the mortgag
should enter into possession in the year in whii
he paid the debt. Held, that it was the intentii
of the parties that the mortgaged property shou
not be sold in satisfaction of the mortgage-del
that the mortgagee was to remain in possess!
for ten years, and that, under cl. 3 of s. 15
Bombay Regulation V of 1827, he had no pon
of sale. The mortgagee ha\'ing brought his ?
within three years from the expiration of the stii
lated period of ten years : — Held, that the m
gagee's personal remedy against the mortgagor v
not time-barred. Idrus v. Abdul RAHi>rAK

I. Ii. R. 16 Bom. 3'

28.

Hypothecation

" our zamindari property'" — Ascertainment ofmort
gors' zatnindari interest at date of mortgage — Am^
nity in deed— Contract Act (IX of 1872), s. 2:
Transfer of Property Act (IV of 1SS2), s. 5S. Ad
of simple mortgage described the mortgaged ]
perty as "our zamindari property" (zamin'
apni), and gave no further specification or desc
tion. It was proved that at the date of the mort'j
the mortgagors had a definite and ascertai
fractional share in two zamindaris. Held, t
the words "our zamindari property" were s'
ciently certain, or at any rate were ca pable of br

( 8381 )

DIGEST OF CASES.

MORTGAGE— co«<rf.

2. CONSTRUCTIOX— conW.

made certain, by the proof of the mortgagors
being at the date'of the mortgage-deed the owners
j{ a specific zamindari interest ; and that the
mortgage was therefore not void for uncertainty,
Kanhia Lai v. Muhammad Husain Khan, I. L. R.
5 All. 11 ; Bi-shen Daj/id v. Udit Xarain, I. L. R.
'.), All. 4S6 ,■ Ramsidh Pamh v. Balgobind, I. L. E.
9 All. 15S ; Rae Manik Chand v. Behari Lall, 2 N.
W. 263 ; Deoiii v. Pitamher, I. L. R. 1 All. 275 ;
Tailbtj V. Official Receiver, L. R. 13 A p. Ceis. 523 ;
Iind Tadman v. D'Epineuil, L. R. 20 Ch. D.
VoS, referred to. Shadi Lall v. Thakur Das
I. li. R. 12 All. 175

29.

Kanam mortgage

-^uit for sale of mortgaged property — Rights of
\xnamdar to sue for amount of kanam and for sale of
nortgaged property in defa ult of payment. A kanam-
'lar having sued to recover the amount of his kanam
imd for sale of the mortgaged property in default
')f payment : — Held, that such a suit is unsustain-
ible ; that a kanam in the mortgage aspect of it

s a usufructuary mortgage ; and there is no
'luthority to support the contention that it is a
jiimple mortgage apart from an observation in
lamunni v. ^Brahma Dalian, I. L. R. 15 Mad. 366,
'79. SniDEvr r. Virarayax

I. L. R. 22 Mad. 350

30.

Transfer of Pro-

perty Act, ss. 40, 5S (b), 69, 100 — Charge— Lien—

'fransfer of interest in immoveable property — '\-irh'"

— " Mustaghraq" — Poiccr of sale in default — Bond

\lde purchaser for value without notice — Rights of

yurchaser at sale in execution of decree. In January

.883 a decree was obtained upon a bond executed

!n October 1875, whereby certain immoveable

jiroperty was made security for a loan, the transac-

jion being described not by the word " rehan "

j'f mortgaged, but by the words ' ' arh " and

'mustaghraq." The instrument contained no

spress covenant for sale of the property in default

■f payment, but it contained a covenant prohi-

liting alienation until payment, and a stipulation

hat, in the event of the property specified being

j.estroyed or proving insufficient to satisfy the

ibt. the obligee might realize the amount from

obligor's person and other property. The

■f directed the sale of the property as in the

. ais of an ordinary decree for the sale of mort-

aged property. In ISSo, before any steps had

'een taken in execution of the decree, the same

roperty was sold in execution of a simple money-

ecree against the obligor, and the purchaser

btained possession. It was found as a fact

: at the time of the sale the bond of October

"' and the decree thereon of January 1883 were

notified, but through no fault of the obligee

■ e holder, and tliat the purchaser was a bond

lansferee for value without notice of the bond

decree. Held, that the words "arh" and

"istaghraq " used in the bond implied a power

lie in default and denoted a mortgage without

MORTGAGE— con/rf.

2. CONSTRLXTION— <:on<c/.

possession : and the transaction, though entered
into prior to the passing of tlie Transfer of Property
Act (IV of 1882), must be regarded as amounting
to a simple mortgage as defined in s. 58 (6) of that
Act, and not as merely creating a charge as defined
in s. 100 ; and that consequently the rights of
the obligee must prevail over those of the subse-
quent bond fide purchaser for value without notice
of the bond and the decree thereon. Held, also,
by Mahmood, J., that the title of the judgment-
debtor at the time of the sale in 1885 in execution
of the simple money decree was subject to the
mortgage-decree of" January 1883, and the
purchaser at the sale could acquire no higher title
than the judgment-debtor possessed, and was
equally bound by the terms of the decree of
January 1883 in respect of the property which
he hacl purchased, and could not prevent the
property being sold under that decree except
by paying up the decretal money. I'nnopoorna
Dassee v. Nafur Poddar, 21 IF. R. 148, and Enayet
Hossein v. Giridhari Lall, 2 B. L. R. P. C. 75 ;
12 Moo. I. A. 366, referred to. Per Mahmood
J. — The power of sale mentioned in s. 58 {b) of the
Transfer of Propertj' Act is not a power in the
mortgagee to bring the mortgaged property to
sale independently of a Court. The observations
on this point of MrTTT:sw.\Mi Ayyar, J., in Ran/ja-
sami V. Muttu Kumarapjxi, I. L. R. 10 Mad. 509,
of BiRDWOOD and Jardike, JJ.. in Khemii Bhng-
vandas v. Rama, I. L. R. 10 Bom. 519, and of
Petheram, (?../., in Sheorntan Kuar v. Mahipal
Kuar, I. L. R. 7 All. 25S, dissented from. The
nature of simple mortgage, hypothecation, charge
and lien discussed. Aliba v. Xamt, I. L. R. 9
Mad. 21S ; Martin v. Pursram, 2 Agra 124;
Raj Coomer Ram Gopal Xarain Sin^h v. Rant Dutt
Chowdhry, 13 11'. R. F. B. S2 ; Moti Ram v. Vilni,
I. L. R. 13 Bom. 90 ; Bopal Pandau v. Pargotam
Das, I. L. R. 5 All. 121 ; Shib Lai v. Ga,tya
Prasad, L L. R. 6 All. 551 ; Girdhnr Ranthoddag
V. Hakamchand Revachan-d, S Bom. 75 ; Sdblagchand
GoJabchand v. Bkaichand, I. L. R.6 Bom. 193:
Naran Purshotam v. Daolatram Virchniul, 1. L.
R.6 Bom. 538 ; and Durga Prosad v. Shamhhu
Nath, I. L. R. 8 All. 86, referred to. Ki.shan
L.AL z.5:Ganga Ram . I. L. R. 13 AIL 28
31. — Bond and rental agree-
ment— Bond and nnlal agreement irc-utu! on
same date, and identical in many terms — Effect
— One and the same transaction —Obligations to
he gathered from both — " Damdujwt" Rule —
In-applicability to ca^es governed by Transfer of
Property Act. By an instrument described
as a " possessory mortgage debt bond," which
recited that the "house described in it was put in
the possession of the mortgagee, the mortgagors
undertook to clear the mortgage debt by paying
RlJo-lO-O before the 25th of each month, namely.
R35 for principal and 830-10-0 for interest
and authorised the mortgagee to let the house
and credit the rent towards the aforesaid principal

( 8383 )

DIGEST OF CASES.

I 8384 )

MORTGAGE— conf(f.

MORTGAGE— coft<(Z.

2. CONSTRUCTION— co«fcZ.

and interest. The bond further provided that
in case the rent derivable from the house should
fall short of the amounts payable every month,
the mortgagors would themselves pay them on the
due dates, and that, in default, they would pay
compound interest. In case the amounts payable
should not be paid for five months, the mortgagees
were to recover the debt from the mortgagors.
On the same day the mortgagors by a separate
agreement, rented the house from the mortgagees
at a rental of R30-10-0 jjer mensem, payable
by the 25th of each month with compound interest
on the amoimt of rent ; in default, at the same
rate as that payable under the mortgage bond in
case of interest being in default. The lessees
also agreed to vacate and deliver up the house
to the lessors, or to those who obtained an order
from the lessors, within thirty days of being
required so to do. Default having been made,
the mortgagees sued for the amount due, and, in
default, for sale of the mortgaged property. Held,
that the two instruments were executed as parts
of one and the same transaction, and that the
intention was that the rights and obligations of the
parties were to be gathered from the provisions
of both. Taldng the two together, it was clear
that the transaction was one entirely of mortgage
with an express covenant to pay the principal
and interest in instalments, and conferring a
power on the mortgagee to take possession of the
property mortgaged and apply the usufruct in the
discharge of the interest and principal. Juggee-
wundas v. Ramdas, 2 Moo. I. A. 4S7, followed. Held,
also, that the clause in the rental agreement as to
delivery of the house when required left no room
for doubt that the arrangement was one not
binding the mortgagee to enter into possession
and liquidate his debt by the usufruct ; and the
express covenant to pay precluded the mortgage
from being taken as a purely usufructuary mort-
gage as defined by the Transfer of Property Act.
Held, further, that the "Damdupat Rule " is in-
applicable to cases of mortgage governed by the
Transfer of Property Act. Ram Kanye v. Calhj
Churn, I. L. R. 21 Cede. S41, referred to.
Madhawa Sidha^tta Oxahixi Nidhi v. Ven'ka-

TARAilANJULTJ NaIDU (1903)

I. L. R. 26 Mad. 662

32.

Ejectment— J/or^Sragfe for

fixed term — Mortgagors rigid to eject — Mortgagee's
right to damages for breach of contract. Held, that the
plaintiffs, who had granted the land in suit to the
defendants for a fixed term, free of rent in considera-
tion of past and present advances made to them,
were entitled to eject at the expiration of the term,
notwithstanding that other lands had been included
in the grant of which the plaintiffs failed to give
possession, and in consequence the defendants had
been unable to recoup themselves the money
advanced. The right to eject was absolute, unless
controlled by some stipulation, express or implied

2. CONSTRUCTION— co7ifi.

in the deed of grant. Nidha Sah v. Mfrli Dbi

(1902) .... I. L. R. 25A11.],

s.c. L. R. 30 I. A. I

7 C. W. N-.2)

33. Lease — Construction of deu-

Mortgage or lease—Land transferred for ten year.-
Profits to go in liquidation of debt^-Suit <■
redemption brought before expiration of tern-
Transfer of Property Act (IV of 1SS2), ss.
cl. (d), and 98—Dekkhan Agriculturists' Re]
Act {XVII of 1S79), ss. 3 [z) and UA. r
a deed dated the 2nd November, 1893, it y^
provided that, in consideration of a debt f
R24:0 due by the plaintiff (an agriculturist))
the defendant, the latter was to take posses i
of certain land for ten years and appropriated 3
income thereof in liquidation of the debt, and t)t
after the expiry of the said period the right o
the land was to cease. The deed was heacil
" mortgage deed with possession regarding land'
Before the expiration of the ten years, the plain F
brought this suit for redemption and possessi ,
alleging the transaction to be a mortgage. H',
that it was a mortgage, and that the plaintiff Vs
entitled to redeem even before the expirationlf
the mortgage term of ten years. Ttjkaram" ]|
Mairal y. Ramchaxd Malukchaxd (1901) '
I. li. R. 26 Bom. 22

34. Right in village rjb

held qua zamindsir—Construction of dea^
2Iortgage qua zamindar — Right of motigngor |»
village not held qua zamindar — Absence f
express provision in deed charging such righr
Not comprised in mortgage. By a deed f
mortgage, dated 22nd October, 1892, a zaminijs
mortgaged to plaintiii his entire zamindari, wh i
was recited as yielding a certain annual incoil,
together with the zamindar's " entire right al
income and the kattubadis on enfranchised inant
The schedule specified by name the villi
constituting the zamindari, one of these bein_'
village of Sabuliya. The only right, title
interest possessed by the zamindar in this vi''
(which was an inam village of certain P«'
was to the annual payment by the imandai -
a fixed kattubadi, and the amount of this katt-i'
was all that was included in the approxiui
annual income specified in the schedule. At
date of the mortgage to plaintifi, the zanvn
also possessed a mortgage right over this vill
he being the assignee of a mortgage which had 'i
executed by the Payaks (the^ imandars) iu I'-
the assignment having been made to him in 1^
In a suit brought against the zamindar in 1898
plaintiff, on his mortgage, plaintitf contended t
the deed operated to assign to him, by way
mortgage, not only the zamindar's right to ka.
badi in respect of the village of Sabuliya, but c
the mortgage right possessed by the zamindar n
that village. Held, that the zamindar's morti'
right over the village Sabuliya was not compri

( 8385 )

DIGEST Of CASES.

( 838t) )

ORTOAGE— confei.

2. CONSTRUCTION— con<i.

I the mortgage. Rook" v. Lord KenHnrjton, 25
aJ. Ch. 795, referred to. BHntARvjr Chetti
tSBi Ku.vjA Behari Gajexdra Devt (1901)
! I. L. R. 25 Mad. 42

J6. Usufructuary mortgage—

. nigagee put into ■pos.ie-<Ainn — Contnnponinpou.s
I IP of mortgaged property to mortgagee— Lea.se
(? viortgage not one hut separnte trnnmrtionx
( September 18th. 1883. Chimman Lai, by
a isufructuary morto;age of that date, in con-
s-ration of a loan of R 1,3.50 put Bahadur
gnh into, possession of certain property. He
cenanted with the mortgagee to pay him
ii'Test at the rate of annas 14 per cent., which,
a. deducting the Government revenue (which
ti mortgagor undertook to pav. and did pay
niiarly), left the sum of Ri41-12 payihle
alually by the mortgagor ta the mortgagee for
iixest. It was further agreed that the'^ mort-
gi-e should pay himself the interest from the
pi its of the mortgaged property ; and further
th, if the amount of the profits in any year
ej eded the sum payable as interest, the surplus
shld be applied by the mortgagee in reduction !
of le principal of the loan, and, on the other hand,
th if the profits fell short of the sum payable for
in -est, the defendant-mortgagor would be liable
foihe balance, and would pay it along with the
m. jage money. A further' clause permitted
th mortgagee, at any time he chose, to call in
' n- lortgage money, and to recover it with interest
•■■ from the mortgagor and the mortgaged
By an instrument of even date the
•!• (who, under the abovementioned usu-
mortgage, had put the mortgagee in
ti) executed to the latter a kahutint or rent
nt, by which he acknowledged to have
from the mortgagee a lease' of the mort-
■miscs. to hold good up to the redemption
"tgage, at an annual rental of R141-12,
promised to pay by two equal half-yearly
its, the rent, if not paid on fixed dates, to
'■St at the rate of 12 per cent, per annum.
<l'jt was drawn up strictly in the form of a
^ oen a landlord and a tenant, and set forth
lies available to the lessor under s. 36 of
\ct by ejectment in case of failure to pav
I ited rent. Held, that under the circum'-
' forth above, the mortgage and the lease
' distinct transactions. A suit on the
would lie only in a Revenue Court,
plaintiff was not entitled to recover rent

than three years from the date of hia j
' '/ AH Khan v. Lalfa Prasad, J. L. R. \
'">, distinguished. CniMMAX Lal v. Baha- !
"(1901) . . I. L. R. 33A11. 338

Rents in lien of

Mortgagee dispossessed of part of mort-
■■■!■ roperti/— Redemption without payment of I
'mt-Transfer of Property Act, s. 58 (d). |
"O'j a mortgagor covenanted that " until de- |

i'OL. m.

MORTGAGE— <;on<,/.

2. CONSTRUCTION— con<<f.

livery of possession of the aforesaid villages I
shall pay interest at the rate of 2 per cent, on
the abovementioned mortgage money," and
possession was given at once, the deed being sclent
as to interest thereafter : Held, that this was
a usufructuary mortgage under which the mort-
gagee was entitled to rents in lieu of interest,
and that the mortgagor was entitled to redeem on
\ payment of principal without interest The mort-
I gagee, having been dispossessed of several villages
! shortly after the execution of the mortgage,
j acquiesced in his diminished security for upwards
! of thirty years. Held, that the mortgagee was not
I entitled to claim interest in lieu of the rents and
profits of the property of which he was dispossessed
by reason of the mortgagor's failure to .secure his
possession thereof. Pertab BAHAntTR Singh r.
GiJADHiR Baksh (1902) . I. li. R. 24 All. 251
s.c. L. R. 29 I. A. 148
7 C. W. N. 97

37. Mortgage by persons other

than the real o^wner — ArqHisr>nrr of the
real oumer — Mortgagee'.s possession ndvers'' to the
real owner. On the 24th October 1873 one Durgan,
widow of Govindji, mortgaged with possession
certain land to Godaji, the husband of her
daughter Rau. After Durgan's death in 1882, the
plaintiffs, under a belief then prevalent, claimed
as the nearest warns hhaubands of Govindji to
have succeeded to the mortgaged property to the
exclusion of Govindji' s daughter Ran and disputed
the validity of Durgan's mortgage. Godaji, there-
upon, on the 22nd June 1882, accepted a mort-
gage from the plaintiffs. Rau was aware of this
transaction and acq'iicsced in it. In July 1889
Rau sold her equity of r demption to one
Savliaram, who paid off Godaji 's mortgage and
recovered possession of the mortgaged j)roporty.
The plaintiffs in September 1890 brought a suit
against Godaji and Savliaram. defendants 1 and
-,ti redeem tho mortgage (f the 22nd June 1882.
Held, that the plaintiffs were entitled to redeem,
Rau's claim to the equity of redemption having
become time-barred. After the mortpage in suit
Godaji held the property as plaintiffs' mortgagee
and his pof .session must be attributed to a right
derived from them. Rau being aware of what
was being done and havinc acquie.stefl in it.
Though Godaji's pis.session in its inception was
not bv virtue of a right derived from the
plaintiffs, still his pos.session wa-o from the 22nd
June 1882, under colour of a right derive! from
them and .so adversi- to Rau. and that to her
knowledge. Although (Jodaji took |>o.-ise&sion
under a mistake common to alias to Rau's rights
.still that circumstance did not make his posses-sion
any the less adverse. PrRsiiorrAv t-. Saoaji
(1904) I. L. R. 28 Bom. 87

38. Constraction- .Uor/^rtf^t debt

Another debt on a previous khata made

■payable under the deed—Charge. The property

12 L

( 8387

DIGEST OF CASES.

MOBTGAGE— co7!7rf.

2. CONSTRUCTION— fonirf.

in suit was niortfraged for R 1,500. The
mortgage-deed further recited an earlier debt
of R5,000 due on a previous khata and provided
that if the mortgagor did not repay this Ro.OOO
within two years from the date of the deed, he was
not at liberty to redeem the property, unless both
the debts of R 1,500 and Ro.OOO were paid.
The deed was stamped as a mortgage for R6.500.
On a construction of the deed : Held, that the
property mentioned in the deed was mortgaged for
the sum of RS.OOO and interest payable theie-
under and also for R 1,500, with this difference
that the mortgage as to the former sum took effect
on the expiry of two years after the date of the deed.
Hari v. Vishnu (1904) . I. L. R. 28 Bom. 349

39. Mortgage en-
forceable in its entirety — Transfer of Property Act
{IV of 1S82), ss. 58. 60, and 86— Contract Act (IX
of 1872). s. 16 — Sawaikhichadi — Interest on instal-
ment defaxdt — Each case to he decided by its oivn
circumstances. A mortgage-deed, both the parties
to which were money-lenders, purported to be secu-
rity for R5,000 as principal and R 1,250 sawai,
repayable by 72 instalments. The sawcii which
equalled one-fourth of R5,000, was to take the
place of interest. The sum of R5.000 was made
up as follows : R4, 812-8 were paid to the mortgagor
in cash, R87-8 were retained by the mortgagee
on account of the first instalment and RlOO
were retained on account of kJu'chadi (bonus).
The mortgagee having brought a suit to recover
the mortgage-debt, namely, R7,995, and a ques-
tion having arisen whether the mortgage was so
•unconscionable as to be unenforceable in its integ-
rity : Held, that, under the circumstances of the case,
the mortgage was enforceable in its integrity.
Per Curiam. — The principles of justic?, equity
and good conscience do not of necessity disen-
title a mortgagee from insisting on his security
for a greater sum than what has been actually
advanced : in each case the question must be
asked whether there has or has not been a hard
and unfair bargain on the borrower, but when
that is not established against the mortgagee,
then the right to redeem still remains, though it is
redeeming not on payment of the sum advanced,
but of the sum, which the parties agreed it was
worth the mortgagor's while to pay in order to get
a smaller advance, when he was in want of money.
Each case must be determined according to its own
circumstances. Held, further,that there was nothing
illegal in the provision for the payment of su-ai.
Per Curiam. — The Courts do not lean towards
compound interest, they do not award it in the
absence of stipulation, but where there is a clear
agreement for its payment, it is in the absence of
disentitling circumstances allowed. Haei ?■. Ramji
(1904) . . I. L. B. 28 Bom. 371

40. Step in aid of execution-

M ortgage decree — Liinitation Act {XV of 1877), s. 4,
jSch. II, Art. 179 — Limitation, plea of, by subsequent

MORTGAGE— coTiid.

2. CONSTRUCTION^;o««rf.

mortgagee — Step in aid of execution. A subseqiil
mortgagee, M'ho is a judgment-debtor inadese
for a prior mortgage, is competent to raise it
question of limitation, when an application fo tf
execution is made, although he may be beneH
by the execution-proceedings. Art. 179 of h,
II of the Limitation Act applies to a mortjje
decree. When a mortgage decree is obta 'd
against the original mortgagor and a subseq nl
mortgagee, but the decree does not in any ij
apportion the mortgage-debt, it cannot be id
that the decree comes within the scope of the si
part of the second paragraph of Expl. 1 to -t
179, merely because the subsequent mortoet
would be affected by it only to the extent of o
perties covered by his mortgage. An applic di
for postponement of a sale was made because hi
decree-holders by reason of a change of eii
manager were not acquainted with all the ^ti
and because several of the properties had 'ei
advertised for sale at the instance of a io:
mortgagee and also because no intending purch er
were present. Held, that the application coulvio
be considered as a step in aid of execution. Ai
opposition by a decree-holder to an applicatic b;
the judgment-debtor to sell the properties i i
certain order is not a step in aid of execior
Troilokya Nath Bosu v. Lala Jyoti Per.^i
Nandi (1904) . . . 8 0. W. NJS:

41. Intention to keep aLa-

Mortgage — Priority — Prior mortgage.^, jmyin o]
of, by subsequent mortgagee — Transfer of Prni
Act (IV of 1882), s. SO — Wrong-conchisionrm
facts found — Second appeal — Question of law. Ih
defendants obtained a mortgage over certairorc
perties, which were subject to plaintiff's moi as
and several earlier mortgages, on the stipiitio:
that these earlier mortgages should be pa ol
and the mortgage-deeds made over to the d-Mid
ants. On the question whether it was the '^r
tion of the parties to keep alive the mortu' i
paid off, in favour of the defendants, tli
Appellate Court found that the defendai
not, at the time of the execution
mortgage, aware of the plaintiff's mort^
therefore could not have intended to h-
those mortgages as against plaintiff's m
Held (reversing the judgment of tbi
Appellate Court and remanding tlie ca~
the conclusion of the lower Appellate (
to intention could not be legitimately
from the fact found by that Court : a '
error was one which, under the rule lai
in Earn Gopal v. Shamslcliaton, L. B. 19 I.
the High Court could interfere with in
appeal. The intention to keep alive an eai i
may be found in the circumstances atteini
transaction or may be presumed from
deration of the fact whether it is or is ni '
benefit that the charge should be kept o
Gokaldas Gopaldas v. Puranmal Premsukhdm^-}
11 1. A. 126 : s.c. I. L. R. 10 Calc. 1035 i &n'Diw

8339 )

DKJEST OF CASE!^.

( 8390 )

MORTGAGE— fon/r/.

2. CONSTRUCTION— ron/rf.

butid'iu Shaw Chowdhry v. Jognnaya Dasi, 6 C. W.

V 209 : s.r. L. B. 29 I. A. 9 : 1. L. R. 29 Calc.

l',4, followed. S. «0 of Transfer of Troperty Act
'(iiies not excliKle tho application of tlic principle
'iLiid do^vn in these cases. Girdh \r Da'^ '
,ArTAR Singh (1904) .

42. — Mortgage — Pri-

\„ity—Suit by sub/tequent mortgagee— Prior mortgagee
^made a party as holder of a still later mortgage

I'vAM

8 C. W. N. 690

\— Prior mortgage pleaded — J^resh suit on prior
^mortqaqe, if barred— Estoppel— Res judicata — Civil
frocedure Code (Act XIV of 1SS2), s. 13-Divi-
\ion of mortgage-debt by purchasers of mortgaged pro-
. ...orty— Execution of separate mortgage-bonds — Dilfer-
\id rate of intfrext — Intention to keep alive prior
\norlgage — Limitation if to run from date of payment
ifxfd in prior or in subsequent bonds. Plaintiff
juing to enforce a mortgage, it is proved that
In a previous suit brought by the predecessor
l.f the defendants, second party, to enforce a
Inter mortgage, over the same properties, the
Maintiff, who had been made a party defendant
Is the holder of a still later mortgage, did not
let up his prior mortgage and admitted that he was

inly a subsequent mortgagee. Held, that the suit
: barred by the rule of res judicata, though not by
^toppel, the question as to whether the plaintiff or
le defendants, second party, were the prior mort-
igees in respect of the properties in suit having
sen decided in the previous suit. Under Expl. II
' 8. 13 of the Civil Procedure Code, the plaintiff
' as bound to set up his prior mortgage in that suit.
'hen a mortgaged property was purchased by two
arsons who divided the mortgage-debt between
lemselves and executed two separate mortgage-
inds in favour of the mortgagee in place of the
iginal mortgage-bond : Held, upon a considera-
m of the evidence, that the intention of the parties
■-'to keep alive the old mortgage, although the
lity of the original mortgagor was divided
transferred, and although the rate of interest
< new bonds was different from the rate in the
I'ond. Held, also, that limitation in suits
-'ht to enforce the later bonds would not run
• the date of payment fixed in the prior bond,
Irora the date of payment provided in the
bonds, although the plaintiff would get the
lit of the prior bond in these suits. B aranashi
MiAD Chowdhury v. Johori Lai. (1004)

8 C. W. N. 385

^3. Jurisdiction — Mortgage-suit

■^nmourtt title set up by defendant — CourVs
lirlion to try the issue — Jote — Tnuhsferahility
ndlord ami tenant. In a suit to enfurcc a
■ --age an assignee of the equity of redemption
le mortgaged property being made a party
lot ask to redeem, "but alleged that tli'e
-age was invalid as against him and set up
'^'•amount title. The suit was tried and
if'd on that issue by the lower Appellate Court,
ippeai to the High Court it was contended

MORTGAGE— ro» td.

2. CONSTRUCTION— fon^-f.

that the lower Appellate Court ought not to have
tried that issue in a mortgage-suit. Held, that
the C'ourt hatl jurisdiction to decid* the issue.
Nil Kant Bane.rjfe v. Suresh Chan Ira MitUick,
I. L. R. 12 Calc. 414, referred to. Hark Krishna
BuowMir r. Robert Watson & To. Min4i

8 C. W. N. 365
44. Active confidence, rela-

j tion of — Mortgagor an-l inortgagii — Eridmct Act
(I of 1872), s. Ill — Lcmling of money to carry on
' litigation — Burden of proof of good faith. J, a
I money-lender, entered into a scries of trans-
actions with a Hindu widow in order to assist
; her with funds to carry on a suit she had
j brought to establish her right to succee<l to
her husband's estate. The widow, who was suc-
j cc-s'iful. subsequently transferred the estate to her
! grandsons. The latter executed several mortgage-
j bonds in J's favour, the consideration being
I express"(l to be prior charges in J's favour
and a fresh advance. In a suit brought by ./ on
the mortgage-bonds : Held, tha.t whatever might be
j the nature of the relations between ./ and tlie widow,
■ while he was dealing with her in the c>ur>e r.f her
litigation, there was no sufficient evidence of any
I relation of active confidence between J and his
! mortgagors, within the meaning of s. Ill of the
Evidence Act, at the dates of the mortgage-bonds
I so as to throw on J the burden of proof of the good
j faith of the mortgage transactions. CnArnnRi
I Thakur Das v. Chaudh.ari Jairaj Sinc.h (1004)
1 8 C. W. N. 569

S.C. L. R. 21 I. A. 46

j 45. Tender of mortgage-money

—Morlgagr-Transftr of Prop-rty Ac' {IV of 1SS2),
ss. 83, 84—lnlircst aftir datr of t,nd>r. Where it
■was found that a mortgagor had made a tender
of the mortgage-money, but it was not found
whether the tender was a proper tenderer whether
it had been made to the proper iKTson or whether
after the tender was made, the mortgagor kept
j the mortgage-money unemployed -i"d the question
! was whether the niortgagor wa.s liable to interest
after the date f>f tender : H-hl, that the mortgagor
should have paid the money into Cntut under s. 8.3
of the Transfer of Property Act. and then he would
have got the benefit of s. 84. Ham Nath Tarka-

RVTNV Bh\TTA(HARJKF, V. COIAL ('HANl>rtA SaRKAR

(1904) 8 C. W. .\. 153

40_ Interest — Calcitlation, period

of Whithir date on uhich money Unt and dalr on

which npaid should both be counted— Usage —
Trnn.'^f^r of Prop,rty Act (IV of 1SS2), w. 83 arid St

Dr}>osit by two inst<dnunt.'>, if legal. In the absence

of any proof as to any local usage amongst the
bankers of the particular locality a mortgagee is
not entitled to interest for the day on wlii. h the
money was advanced as also for the day on
which the money was repaid. A dep<3sit by two
instalments is a good deix.sit under ss. 83 and 84
of the Transfer of Property Act. Raghi-b Prcsti
t;. Bhobu Sahoo (1904) . 8 C. W. N 216

12 L 3

( 8391 )

DIGEST OF CASES.

( 8392 )

MORTGAGE— €o»<i.

2. CONSTRUCTION— conid.

47.

Mortgage to secure future

advances— .4c« XXX VI of i860, s. 14—Meamng
of uvrd " c'aimable.'''' The word " claimable " in
s. 26 of Act I of 1879 means '" claimable in a
Court of Justice. " A mortgage-bond, intended to
secure future advances up to the sum of R 10,000
at a time, was executed on a stamp-paper of
R59, and under it altogether more than
R 10,000 was privately realised by the mort-
gagee on different occasions. He d, that there
was nothing in s. 26 of the Stamp Act <if
1879 to prevent the mortgagee from suing to
recover the balance of the debt due on the mort-
gage. Harendea Laj. Roy Chowdhry v. Taeini
Chra>- Chakravakti (1904)

I. li. K. 31 Gale. 807

48.

Accounts — Accounts bdween

two mortgagers one of v^honi redeems the other —
Decree on frevious mortgage — Interest, rate, of —
Privy CouncV, practice of — Objection to suit not
taken in Courts below. The appellant sued as
mortgagee of a certain property under a mort-
gage dated 5th September 1886. The respondent
had, in a suit on an earlier mortgage of 1884, pur-
chased in 1890 the rights of the mortgagor in
the same property, and was also holder of a
decree of 29th June 1891 in a suit on another
mortgage of the same property dated 4th October
1882, which provided for compound interest in
default of payment. To that suit the persons
from whom the appellant derived title, were parties.
The decree of 29th June 1891 gave interest not
in terms of the bond, but at a reduced rate,
it bemg settled that the appellant should redeem.
Held, reversing the decision of the High Court,
that in the accounts between them the respondent
was only entitled in respect of the mortgage of
4th October 1882 to interest at the reduced rate
allowed by the decree of 29th June 1891, and not
to compound interest in terms of the mortgage-
bond. An objection that the claim on the 5th
September 1886 might and should have been
enforced in the suit in which the decree of 29th
June 1891 was given and could not be made the
subject of a fresh suit, -was not allowed to be taken
on appeal to the Judicial Committee, it not having
been raised in either of the Courts below. The
record of the case having been received in December
1900, but the case not set down for hearing until Sep-
tember 1903, the Judicial Committee directed the
Registrar to disallow to the appellant any costs
occasioned by his delay in prosecuting the appeal.
Kedar Lal Maewari v. Bishen Peeshad (1904)
I. L. R. 31 Calc. 332
s.e. li. R. 31 1. A. 57
8 C. W. N. 609

'49. Instalments — Waiv,r—Defau't

of instalments, right to sue on — Part payment of
imstahmnt — Interest. Whexe an instalment bond
gives the creditor the right to sue for the whole
money due under the bond, on default of payment
of a single instalment, there ia no waiver of that

MORTGAGE— cow <rf.

2. CONSTRUCTION— cowici.

right by acceptance of part of an overdue in^ta
ment, or by receipt of interest. Cheni Bash Shal
V. Kadum Mundu', I. L. R. o Gale. y7, and Mc
Mohan Roy v. Durga Cham Gooee, I. L. R. ,
Calc ■'■02, distinguished. Gumma Dambarshtt
Bhiku Hariba, I. L. R. 1 Bom. i^-^' / Balaji Ganr
V. Sakharam Pareshram Angal, I. L. R. 17 Em
555 ; Kanku^hand Shivchand v. Rustomji Hormus
I. L. R. 20 Bom. lOii; Kashiram v. Pandu, I. L. '.
27 Bom. 1 ; Mumford v. Peal, I. L. R. 2 AU- 85.
Keene v. Biscoe, L. R. 8 Ch. D. 201, and Nanjap
v. Nanjappa, I. L. R. 12 Mad. 101, referred ',
MoHESH Chandra Bajs^erji v. PRosA>TfA I,
Singh (1904) . . I. L. R. 31 Calc. (

50. liien on mortgaged p

perty — Mortgage-debt, addition to — Civil P.
cedure Code {Act XIV of 1882), s. 310A. A mo
gagee, making payments to save the mortgag
property from being sold in execution of a re
decree, has an additional lien on the propei
for the sums so paid by him. Upendra Chancy
Milter v. Tarn Prosanna Mukerjee, I- L. E. >
Calc. 7'.U. followed in principle. RAKHOH^f
Chattaraj v. Bit'RA Das Dey (1004)

I. L. R. 31 Calc. 9>

51. . Lien on rm-

gaged property — Mortgager, joint purchase f
mortgaged property by — Mortgagor, objection >
,,aie by— Transfer of Property Act {IV of 1882),-:
101. Wliere the mortgagee purchases the nn-
gaged property along with other properties id
jointly with other persons in undivided sha',
his lien upon the property is not extinguisU,
but is existing, it being for his benefit wit a
the meaning of s. 101 of the Transfer of Propey
Act. A mortgagor is precluded from raig.
the objection that the sale of the mortgad
property in execution of the decree in the mt-
gage suit is invalid by reason of the decree wwJi
that suit not having been made absolute, if f-h
objection is not raised at an early stage of.ie
proceedings. Gunindra Prosad v. Baiju^^
Singh (1904) . . I. L. R. 31 Calc. |0

52. Property comprised in

mortgage, non-existence of—Omis of p\>U
In a suit to enforce a mortgaged bond, which N
registered in the Sealdah Registry, on the gnDfi
that one of the properties mortaged was in the |a|-
dah district, the defendant set up the defence ^
inasmuch as there was no such property in (!»•
ence in tl.e Sealdah district, the registratK^t
the mortgage was bad, and the deed as a iTt-
gage had no efScacy in law. Held, that the »ii8
was on the defendant to show with every ([«•
ness that no property in the Sealdah district ^w
been comprised m the mortgage. JoGiNi M-**
Chatterjee v. BhootNath Ghosal (1904) -
I. L. R. 31 Calc«o

53. Attestation, absence of

—Charge— Transfer of Property Act {IV o/ -'-^
ss. 58, 59, 100. Wbere a transaction evidce

( 8393

DIGEST OF CASES.

( 8394

MOETGA OtB—contd.

2. CONSTRUCTION— co«W.

i)y a document was a mortgage as defined by
). 58 of the Transfer of Property Act, but the
locument was not attested by two witnesses
13 required by s. 59 of the Act : Held, that it
lUd not operate as a charge under s. 100 of
|;he Act. Hani Kumari Bihi v. Sri Nath Roy, 1.
'!. W.fN. 81, and the observations of Banerjee
'., in Tafal iddi Peada v. Mahar All SlmJia,
. L. R. 26 Calc. 78, approved. Pran Nath
•Iarkar v. Jadt: Nath Saha (1905)
; I. L. R. 32 Calc. 729

i s.c. 9 C. W. N. 247

54, Equitable set-oflF — Rcdemp-

rm — Usufructtuiry mortgage — Accounts, mode of
yh^^ing — Surplus receipts — Civil Procedure Cod'
'ict XIV of 1882), s. 111. The law of equitable
,'t-o£F applies where the cross claims, though not
!rising out of the same transaction, are closely
)nnected together. Where, after making the
iyments stipulated in a deed of usufructuary
.ortgage, a surplus began to accumulate in the
inds of the mortgagee, he would be entitled to set
f against such accumulations a claim it r rents
^ibsequently accruing due to him from the m(irt-
jigor in respect of a holding owned by the latter
1(1 included in the mortgaged property, notwith-
ling that such rent might be barred by limit-
Nurshing Namin Singh v. Lukputty Singh,

... R. 5 Calc. 333. referred to. Sheo Saran
jXQHtf. MOHABiE Persad Shah (1905)
I I. li. R. 32 Calc. 576

55. Registered sub-mortgage

'.Notice — Abifnce of knowledge of the sub-n.ort-
■ ge by the vwrtgagor — Peiyment made in good faith
I mortgagor io mortgagee. When a mortgagor
likes a payment to the mortgagee in good faith
Ithout knowledge of a registered sub-mortgage,
ie payment is not vitiated on the ground that it
|>8 made subsequent to the registration of the
jb-mortgage Registration is notice for some
irposes, but it cannot be treated as notice for the
jrpose of vitiating such payment. Williams v.
frell. 4 Vb". 389 referred to.' Sahadev v. Shekh
".JpaMiya (1905) . I. L. R. 29 Bom. 199

i36. Arrangement between

ijirtgagee and some of several mortgagors,
'j'ect of. The rule that an arrangement between
•<|s or more of several mortgagors and the
» rtgagee, whereby the former are released from
t ir liability under the mortgage in consequence
<; payment of a portion of the debt or otherwise,
tia not aiiect mortgagors not parties to the
••ingement, if their rights against the co-mort-
.■J ors are likely to be prejudiced thereby, has
n application, where the mortgagor, who is not a
P ty, is sought to be made liable only for his just
* re of the debt. Where a division of joint family
Jperty is effected by consent or by a decree of
C rt, an arrangement by some of the members
>i a mortgagee of the joint family property, by
^ch their shares were to be released on payment

I MORTGAGE— rori/^.

I 2. CONSTRUCTION— for;/<f.

j of their share of the debt, is binding on members,
j who are not parties to the arrangement, so long as
they are not called upon t<> pay mere than their
.share of the debt as settled by the partition.
Venkatachella Chetty v. Sriniva'^a Varapa
j Charlar (1905) . . I. L. R. 28 Mad. 555

! 57. Suit for damages by mort-

j gagee against wrong-doer — Mortgage of m-
j terest in tenancy in C07nmon by one of two co-tenants
— Deterioration of mortgagefrs interest by act of other
I co-tenant — MaiiUainability^Limitation Act {XV of
1877), Art. 49 — Wrongfully removing spcci/c pro-
perty. K, who was a tenant in common with
; the defendant, mortgaged her interest to the
plaintiff. The plaintiff instituted a suit against
K for the recovery of the mortgage amount
by sale of the mortgaged property. Pending
the appeal in that suit, the defendant cut
down all the trees on the land, and appropriated
the same to himself. On the sale of A''.s interest
in the land, which took place after the removal
of the trees, the plaintiff realised only a portion
of the decretal amount. The mortgagee now
instituted the present suit against the defendant
for the damage suffered by him by reason of the
defendant having appropriated K' s .«hare of the
wood. The suit was filed within three years of the
act complained of. Held, that the suit was main-
tainable. From the time of lending his money, the
mortgagee, whether in or out of possession, acquires
the right to have the mortgaged property secured
from deterioration in the hands of the mortgagor
or of any other person to whose riirhts those of the
mortgagee are superior. Held, also, that the suit
was not barred by limitation. It was not the act
of cutting down the timber, but the subsequent ap-
propriation of the wood by the defendant, which
ought to have been left for the share of the mort-
gagor, that operated to the injury of the plaintiff.
Limitation began to run from the date when the
defendant appropriated the wood to himself. .Xiy-
APPA Reddi v. Kuppusami PIeddi (19(15

I. L. R. 28 Mad. 208

58. Prior and subsequent in-

cumbrances—.Ri<7/(/.s of puifnc mortgagee jxtying
off a prior mortgage. On the 2nd of June 1S«>3
Bikram mortgaged certain property by way of
simple mortgage to Narain t-ingh. < tn the 17th
of June lS7;i 'lup SiiiL'li, one of the sons of
Bikram, made a usufructuary mortgage of the
property in favour of Tula Ram and C'heda Lai.
In 1879 Narain Singh obtaine<l a decree on his
mortgage, to which, however, the second mort-
gagees were not parties and the property was
brought to sale ami was purchased by his heirs.
The auctiun-purchasers, heirs of Narain Singh,
thereupon sued the .><'cond mortgagees to recover
possession of the shares purchai>eu by them and
obtained a decree up^m the 21st of Augu.^t 1S89.
Thereupon the heirs of the second mortgagees
sued the heirs of Narain Singh, the first mort-
gagees, to redeem the mortgage of 1863, and

( 8395 )

DIGEST OF CASES.

( 839-5 )

MORTGAGE— conid.

2. CONSTRUCTION— co»iW.

got a decree on the 9th of June 1890. Finally,
Kirat and another, purchasers of the interests
of Rup Singh, and some of his brothers in
execution of a simple money decree, sued to re-
cover possession of the property comprised in the
mortgage of 1873 upon payment only of the amount
due on that mortgage. Held, that the plaintifis
could not Succeed without also paying off the
amount due under the prior mortgage of 1863.
Kirat V. Debi Sixgh (1905) I. L. R. 27 All. 308

59. Hypothecation of move-
able property. Although no provision has been
made either in the Transfer of Property Act
or the Contract Act with regard to chattel
mortgages or hypothecation of moveable property,
it does not follow that such transactions are
invalid. Deatisv. Richardson, 3 N.-W. P. 64;
Kywetnee v. Kokoung, 5 W. R. 1S9 ; Shyam Soonder
V. Cheita, 3 N.-W. P. 71; Kalka Prasad v.
Chaiidun Singh, I. L. R. 10 All. 20, referred
to. Held, that in the present case the hypothe-
cation of the moveable property was valid and con-
ferred upon the plaintiff a good title, although
not accompanied by possession. Shrish Chandra
Ray t;. MuxgriBewa( 1905) . 9 C. W. N. 14

60. Superior and subordinate

rights existing in the same person — General
words in rnortgage-deed, effect of — Tranrsfer of Pro-
perty Act (IV of lsS2), s. S — Estofpel — Evidence \
Act (I of IS 2), ss. 92, 115 — Judgment nunc pro |
time. Defendant No. 1 amongst other properties ;
mortgaged a taluk, in which he had a superior {
zamindari right and ii some villages of wh-.ch I
he had a subordinate ■'wbanikan interei-t. The
mortgage-deed did not in terms purport to pass |
the su7bar ikari rights. But it .s tound that [

t hough the sarharahtri tenure was never allowed
to be actually merged in the superior tenure, '
yet at the time the mortgage was created, I
it was not known that any sarbarakari interest
existed in these villages, but both parties under-
stood that the entire interest in the taluk with-
out reservation of any sarbarakari rights passed
under the mortgage. Held by Pargiter, J. — That
it was not open to the mortgagor, on subsequently
discover ng that he had the sarbarakari rights in
these villages, to say that he had not mortgaged
his entire interest in the villages, and that defend-
ants Nos. 2 and 3, who were subsequent, bono fide
mortgagees for value of the sarbarakari interest j
were in no better position. Held, by Woodroffe,
J. — That according to the rule of construction
embodied in s. 8 of the Transfer of Property Act.
tlie general words used in the mortgage-deed
were, in the absence of reservation of either rights,
sufficient to pas.s the entire interest of the mort-
gagor. Appellant having died before the judg-
ment was delivered, but a.ter the appeal had been
hear 1, the judgment was entered 7imic pro tunc. I
GoTJR Chandra Gajapati Narayan Deb v. \
Makunda Deb (1905) . 9 C. W. N. 710 i

MORTGAGE— coTiii.

61.

2. CONSTRUCTION— cowW.

Prior and puisne mor

-Suit by each without inaking other party-
Successive purchase by puisne and prior mortgage
in execution — Suit by prior against puisne mortgag
for possession — Maintainahility — Redemption — L
pendens. A first mortgagee who had no noti
of a second mortgage, brought the mortga(j(
propert es to sale in a suit to enforce his mortga
in which the second mortgagee was not made
party, and himself became the purchaser. T'
second mortgagee had meanwhile obtained posst
sion of the mortgaged projierties, having purchas
the same in a suit to enforce his own mortgage,
which he did not make the ffrst mortgagee a par
although he had notice of his mortgage. Held '•■
MiTRA, J. (agreeing with Brett, J.), that a f
brought by the first mortgagee against the secor
in which the former prayed for possession on t
failure of the latter to redeem, was properly fram
and should succeed and the plaintiff ought not
be relegated to a fresh suit for sale. Bunwari J
V. Ramjee, 7 C. W. N.- 11, approved. Althou
the suit by the second mortgagee was institute,
whilst the proceedings in the first mortgage'
suit were still pending. Qvcere, per Mitra, J.
Whether the doctrine of lis pendens applied. H:
Pershad Lal v. D.iL Mardan Singh (1905)
9C. W. N. 7:.

62. Endowment, religious

Dedication — Deed of trust — Money lent out of pro-
of dedicated property — Right of trustee to reco''
— Trusteeship — Succession. G, a zamindar al
money-lender, dedicated a part of his estate to *•
worship of an idol retaining the trusteeship i
his own hand for his life and making provisions r
the appointment of a successor in that office. Hi ,
that a suit to enforce a mortgage brought by *
duly appointed successor in the office of the truse
was maintainable, when it was found that p
money advanced was part of the profits of the esti\,
which had been dedicated to tlie idol. BishambiJb-
Das ?;. Drigbijai Singh (19051 9 C. W. N". S^

s.e. L. R. 32 I. A. f

63. Sale by first mortgage|-
Effect — Right of puisne incumhrancees. tvho t\e
parties — Sale-proceeds, lie?!, on — Withdraw<d >
money by third mortgagee — Suit to enforce

by second mortgagee — Limitation — Limitation
(XV of 1S77), Sch. II, Art. 132— Civil Procet
Code (Act XIV of 1S82), s.s. 244, 295—Trar^
of Property Act (IV of 1SS2), s. 73. When propk
is sold under a decree obtained by a first mt-
gagee in a suit in which the puisne incumbp-
cers were parties, it passes into the hmds of ^^
purchaser discharged from all incumbrances,
the rights of the puisne incumbrancers are ni
tinguished or discharged by the sale, but translv
thereby to the surplus sale-proceeds. Whc
second mortgagee, who had been made a party
first mortgagee's suit, took no steps to eiifor( <
lien on the surplus sale-proceeds, but subsequt
a third mortgagee, who had notice of the set

{ 8397 )

DIGEST OF CASES.

( 830S )

flORTQAGE— cow ^/.

2. COXSTHUCTION— con<<f.
ortgagee'a claim, brought a suit on his mortgage
ithout making the second mortgagee a party and
ew the surplus sale-proceeds in satisfaction of his
ortgage. Held by Sale, J. (agreeing with
'endkbson, ./.), that a suit brought on his mort-
.ge by the second mortgagee wherein he seeks to
llorce his lien on the surplus sale-proceeds in the
'.nds of the third mortgagee is governed by Art.
2 of Sch. II of the Limitation Act and not by
t. 120. Jogeshur Bhagat v. Gkananhqm Das,
C. W. y. S5I], and Knmul Kanta Sen v. Abdul
trkat, I. L R. 27 Calc. ISO, referred to. Ber-
.M Deo Prasad v. Tara Ciiand (1005)

9 C. W. K". 989

84. - Simple mortgage— Traws/fr

Property Act {IV of ISS-]), s.s. 5S, 50, 100—
ansfer of interest— Charge— Attestation — By one
tnejts — Invalidity. A bond for the repayment
a debt contained the statement, ' ' as collateral
jurity for payment of the said money. I do
|)rtgage 23 bighas, etc., etc.," but there was
■} statement in it showing that there was any
Itual transfer of any interest. Held (Mact-Eax,
if., dubitante). that the bond amounted to a
liiple mortgage as defined in s. 58 of the Transfer
< Property Act and not to a charge merely
il lontemplated by s. 100 of that Act. Such
jllocument cannot operate as a valid mortgage,
i.less attested by at least two witnesses. NoBiy
<;akd Naskar v. R.\j Coom.a^r Sarkar (1905)
9 C. W. N. 1001

J5. Order absolute lor sale —

urpclosiire — Sale — Notice to mortgagor — Transfer of
i^yperty Act (IV of 1SS2), ss. S7. <.9. Where an
(i.er ab.solnte has been made under s. 87 or s. 89
ci:he Transfer of Property Act without notice to
tj mortgagor, the Court has an inherent power to
C|.l with an application to set aside the order made
eloarte and can set it aside upon a proper case being
Sistantiated. Tarapada Ghose v. Kamini Dassi,
l\L. R. 29 Calc. 644, dissented from. Tasi.iman
tiHABIHAR MaTHO (1900)

I. li. R. 32 Calc. 253
s.e. 9 C. W, N 81

|t8. Lis pendens — Decree on mort-

9 ■' against minors — Snle in execution — Reversal of

nappta' — Attachment in execution of a money

—Title of the purchaser m execution of a decree

mortgage — Stay of execution. Held, that the

til irine of /I'a pe7K?ew« does not defeat a purchase

uler a decree or order for sale when the lis pen-

is the very suit in which that decree or order

Jissed. The doctrine rests on the principle that

law does not allow litigant parties to give to

ers pending the litigation rights over the pro-

'y in dispute so as to prejudice the opposite

ty. Bellamy v. Sabine, 41 De G. A: J. 5«yf] ;

tram V. Buckley, [l'^94]3Ch. 4S::. referred to.

VLALBhAGVAN v. ShAMBHI PRASAD (19051

I. L. B. 29 Bom. 435

7 Payment by third person

o: money due under mortgage-bond —

MORTGAGE— co««i.

2. CONSTRUCTION— €on<<f.

Intention to keep mortgage alive — Priority — .Mori-
gage-bond, document whether — Court-fee — Api>erd.
Where the money due under a mortgage-bond
was paid by the money of a third person, the
mere fact that the latter had paid o9 the mort-
gage money would not by it.self entitled him to
the benefit of the bond as .security for the
payment. It must be .shown that there was an
agreement between the parties when the pay-
ment was made that the mort^aae should he
kept alive for him. The demand of a creditor,
which is paid with the money of a third person and
without any agreement that the security shall be
assigned or kept on foot for the benefit of such third
per.son, is absolutely extinguished by the payment :
whether a mortgage paid off has been kept alive or
extinguished depends on the intention of the parties :
the mere fact that it has b.een paid off is not suffi-
cient to show whether or not it has been extinijui-
shed : express declaration of intention will cause
cither the one result or the other and in the ab.sence
of such expression, the intention may be inferred
either one way or the other : and Xhe ordinary rule
is that a man having a right to act in either of two
ways, shall be assumed to have acted according
to his interests. An unsecured creditor of a mort-
gagor, who finds himself obliged for the protection
of his own interest to pay off the mortgage debt is
entitled to have an assignment of the seeuritj'.
HehK upon the facts and circumstances of the case,
that they raised a strong presumption that in the
present case there was the intention to keep the
mortgage alive when the payment was made by
the plaintiffs. That the as.signment of the bond
in favour of the plaintiffs, who h.ad paid off the mort-
gage gave to them all the rights as first mortgagees,
although the assignment was made after the date
of payment. A agreed to repay loans up to a
certain sum. whicli misrht be j)aid to him by R and
admitted that, if he failed to do so B would be
entitled to recover the debt by .sale of a certain
propeity of .4 and from his i>erson and other
properties. Further, the deed was registered a-s aa
agreement in Book I and not as a mortgage, which
would have been copied in Book IV imder the
Registration Rules : Held, that the deed did not
create any special lien on the sjKHrifio pro|)erty
mentioned in the deed and tlie circumstance that
the document was registered as an agreement in
Book I was evidence of the intention of the parties
to the document to treat it as an agreement rather
than a mortgage. In execution of a mortgage
decree, a property was purchased for R2.5<M) by
the mortgagee.' Held, that for the purpo«e
of Court-fee. R2,500 must be taken as the value
of the property affected by the de rco. .lAnATDiiAR
Narain Prasad n Brown (liMn.)

I. L. R. 33 Calo. 1133
B.C. 10 C. W. N. 1010

68.

Interest — Con.<trurtion of mort-

g(,ge — Clause as to inorlgagte accepting profil.* in
lieu of interest qualifiedby suhscquent claw^e not in-
consistent with former one — Liability for compound

( 8399 )

•DIGEST OF CASES.

( 8400 )

TVEO UTQAG'E—conld .

2. CONSTRUCTION— cori^d.

■interest — Sums' payable on redemption of mortgage. A
deed of mortgage after providing for payment of
interest at a certain rate and stating that " if as a
mark of favoiir- the mortgagors let the interest
remain unrealised ' ' the principal should be payable
with compound interest, stipiJated by cl. 6 that '• if
the mortgagee took possession she will be entitled
to receive the net profit . . .in lieu of

interest, and during her possession the interest and
profits shall be deemed enual." Cl. 11 was to the
effect that ' ' if during the period of possession of
the mortgagee the profits do not cover the amount
of interest, we the mortgagors will make good the
deficiency. ... if we cannot make good the
deficiency, we will pay it with interest at the rate
mentioned above at the time of redemption. "
The mortgagee took possession under the mortgage.
Held, in a suit for redemption, that on the construc-
tion of the deed, although the prima facie meaning
of cl. 6, namely, that the mortgagee accepted the
profits in lieu of interest was no doubt qualified
by cl. 11, the latter clause was not to be rejected
as being inconsistent with the former one. Held,
also, that the mortgagors were liable to pay com-
pound interest on the deficiency which they under-
took to pay by cl. 11. Jawahir Singh v. Som-
ESHWAK DAT (1905) . I. L. R. 28 All. 225

s.c. L. R. 33 I. A. 42
10 C. W. N. 266

69. Covenant for payment by

instalments — Effect of waiver of right to e.'act
penalty fo/- breach of covinant. Where a mortgagee
had not on the mortgagor's failure to make regular
payments, proceeded to cancel the arrangement
for payment by instalments, but had accepted
irregular payments, and then the mortgagor
made further default : Held, the mortgagee could
not on such further default sue to set aside the
■whole arrangement ab initio, but was only en-
titled to the balance of the principal together
with interest from the date of the last instalment
held to be satisfied. Radha. Prasad Singh v. Bhag-
uan Rai, I. L. R. 5 All. 2S9, followed. Sakhawat
Htjsain v. Gajadhar Prasad (1906)

I. L. R. 28 All. 622

70.

Equitable sub-mortgage-

Transfer of Property Act {IV of 1882\ s. 59—
Deposit of title deeds — Equitable mortgage — Sub-
sequent legal mortgage — Priority — Registration Act
{III of 1877), ss. 17 and iS— Whether equitable
sub-mortgage requires registration. R executed
mortgages in favour of D some time before June
1893. On the 3rd June 1893, D deposited these
mortgage-deeds with G's agent in Calcutta as
security for his debt to G. On the 19th June 1^93
D wrote a letter tour's agent which after reciting
the amount of the debt contained amongst others
the following clause- — "That 1 shall pay him
one-fourth of R 70,000 within a fortnight, one-
fourth by promissory note payable six months from
date, and the remaining half by a promissory
note payable within a year. In the meantime

MORTGAGE— con/(f.

2. CONSTRUCTION— conW.

and until payment of the claim in full of :,i
Gokul Dass [G) you will hold as agent forhitth
mortgage histbandi, dated 25th Falgoon bS
executed in my favour by Babu Bhagaht'
Charan Roy and others as enumerated below, wcj
I have already made over to you as such agei a
aforesaid as security for the due payment o\h
said debt, not to "be parted with by you witu
mutual consent of myself and Raja Gokul hs
or under an order of Court. ' ' Held, that the rrt
gage was concluded on the day when the r d
were deposited with G' s agent in Calcutta and a
under s. 59 of the Transfer'of Property .-\.ct a iic
equitable sub-mortgage was created" in favoi o
G on that dav. Keder Nath Dvtt y. Sham d
Khettry, 20 W. R. 150, referred to. Upon a lii
by the equitable sub-mortgagee ((?) to enforcnii
mortgage against the original mortgagor R nc
subsequent mortgagee, the defence was thathf
alleged equitable mortgage, which was created ' j
letter, not being registered under s. 17 of the Bis
tration Act had' nti" validity at all and that itcilc
not have priority over the subsequent legal rrt-
gage. Held, that a deposit of title-deeds of ce lin
property under a verbal arrangement to secure ly
ment of a debt was not an oral agreement or c la
ration relating to such property \vithin the me; n^
of s. 48 of the Registration Act. but the transa on
was a valid equitable mortgage within the me; ng
of s. 59 of the Transfer of Proj.erty .\ct, and i lid
not require registration. Coggan v' Pogose, I. R.
11 Calc. 15S, followed. Held, further, that in lia
there is no such distinction between legal nd
equitable estates as is known in England, and :he
claim of the subsequent legal mortgagee ca be
sustained it can onh' be sustained under s. 48 che
Registration Act. Webb v. Macpherson, I. . R.
SrCalc. 57, referred to. Gokul Dass v. Easihn
Mortgage and Agency Company (IPOo)

I. L. R. 33 Gale. 10
s.c. 10 C. W. N 76

71,

Construction-

, personal liability under, exist'

■Simple ,»i-
unless s iid

contract to the contrary — Absence of j>pecificpr^ "
plaint no ground for refusing appropriate -
Delay no abandonment of right — Contract Ad
1S72), s. 74, ex pi, effect o). In the case ot
mortgages, the j^ersonal liability of the nr i
exists, unless there is a specific contract
contrary. Wahid-vn-Xissa v. Gohardhav
I. L. it. 22 All. 453, 461, referred to. ^
the plaint asks for a decree against the d
ants as members of the family and " f"r
other relief as the Court may think fit,' th'
ought to grant the plaintiS such appropriate
as he is entitled to and such relief cann '^'^

refused on the ground that there is no s)

ific

prayer for such relief. Though it is withitie
scope of the authority of the managing rtn,^^
of a Hindu family to execute a mortgage'^
to bind the family' assets, the plaintiff in a^u't
on such mortgage is not entitled to a pei'i!"
decree against a defendant member of the li'iJ

{ 8401 )

DIGEST OF CASES.

( 8402 }

MORTGAGE— fowirf.

2. CONSTRUCTION— coM<d.

who is not a party to the mortgage in respect of
the money alleged to be in his hands. Mere delay
by the plaintiff in suing to enforce a contract is nu
."vidence of an intent on not t < enforce it= terms.
Under the explanation to s. 74 of the IndianContract
.Act. it is for the Court to decide on the facts of the
particular case whether a stipulation for increased
interest from the date of default is or is not a
stipulation by way of penalty. It was not the
intention of the Legislature to enact that such
■stipulations arc always to be considered penal. The
■xplanation was simply intended to meet the deci-
sions in which it was held that such stipulations are
itiot penal and must be enforced. Abbakee
TlEGGADTHI t-. KiNHIAMMA ShETTY (lOOfi)

I. L. R. 29 Mad. 491

72, _— — Construction of docu-

MORTGAGE— fon/rf.

2. CONSTRUCTION-

contd.

„,ent — Usufructuary mortgage with 'personal covenant
^or payment of the mortgage money — Such personal
•ovenant not conferring a right cf sale. AVhere a
ioiortgage is in other respects a usufructuary mort-
gage, the insertion therein of a personal covenant to
jay the mortgage-debt on demand unaccompanied
ijy any hypothecation of the property, the subject of
i;he mortgage, cannot alter the character of the
■|iiortgage arid give the mrrtgngee a rig'ut t.. ell the
.-nortgaged property in the event of non-payment
[)f the mortgage-debt. Jafar Huscn v. Bnnjit
Singh, I. L. E. 21 All. 4, distinguished. Eamnyya
;.-. Ouniva, 1. L. R. It Mad. 232, and Sivalcami
\^mmal v. Gnpula Saviindram- Ayyan, 1. L. B. 17
I'Aad. 131, dissented from. Kashi Ram v. Sarpab
- >IN0H (1905) . . I. L. R. 28 All. 157

73.

Whether salefol-

otixd by agreement to reconvey amount-^ to ixortgage —

?nniract creating personal right not transferable.

rhreo brothers sold certain properties by a duly

executed sale-deed. The vendee, more than two

ucnths afte.- the sale, executed an agreement

n favour of one of them in the following terms : —

'You shall on 29th January 3901, v.ithout

ibtaining from others and by your own earnings,

V me the sum of H350 and obtain the right

I>urchase from me in respect of the land sold.

you do not pay the amount on tliat date

ou shall have no right whatever." The plaintiff

laving obtained the assignment of the right under

he agreement, sued to recover possession on ))ay-

nent of the amount, alleging that the sale-deed

nd agreement taken together amounted to a

nortgage. Held, that the sale-deed and agreement

lot being between the same parties and being

ndependent transactions could not be construed as

onstituting a mortgage. Satid Pershad \ Lvchmi

"er^had SiTujh. L. R. "lO 1. A. 129. followed. Held,

lac, that the rigiit conferred by the agreement was

*TBonal and not transferable. Uthamu Mx nAf.i

'. Raqavachaki (1905) . I. L. R. 29 Mad. 307

74. . Contemporaneous deeds—

'^ale and agreeinent to reconvey — Transnciicm. n-hclher
ortgage — Intention — Mortgage hy conditional sale —

Transfer of Property .Act (IV of 1SS2), s. 58 (c). On
the construction of two contemporaneous docu-
ments, one of which purported to be a deed of
sale and the other provided that on the vendor re-
paying the purcha<e-money mentioned in the deed
of sale with costs wnthin a fixed period the vendee
would return the land, and in case lie did not do .••o,
the vendor would deposit the money in Court, and
take possession. Held, that the two documents
together did not constitute a mortgage. Bhaguan
Sahai V. Bhaguan Din, I. L. R. 12 AH. 387, i 1:. .wed .
Balkishen Das v. U'. F. Legge. 4 C. W. N. 153 . I.
L. R. 22 All. 119, distinguished. A certain date
of payment is an essential element of a mortgage
by conditional sale. Kinura-M Monpoi. v. Nitvk
Chand Sirdar (1907) . . 11 C. W. N. 400

75, Lien — Mortgage, Uev of party

paying prior, extinguished when part of mortgaqed
property is purchased for such amount— Suh for
revenue— Trusts Act It of 1SS2, s. 90— Trans fT of
Property Act {1 V of 1S^2), s. n.^— Purchaser of equity
of redemption pom mortgagor not bound to pay public
charges and is not vhen he purchase the lands at a
revenue sale a constructive trustee under s. 90 of
the Trvsts Act. Where a person paying off a prior
mortgage, purchases a portion of the mortgaged pro •
perties in consideration of the amount so [»aid by
him, the lien acquired hy such payment is extin-
I guished and cannot be used by such purchaser
as a shield against a subsequent mortgagee. The
assignee of a mortgage decree purchasing a jK-rdon ..f
the mortgaged properties, acfjuires over such
portion a lien for only a proportionate share of
the mortgage amount. The implied covenant on
the part of the mortgagor, under s. 65 of the Transfer
of Property Act, to pay the public charges on the
I properties mortgaged does not extend to the pur-
chaser of the equitv of redemption from the mort-
gagor. Such purchaser in omitting to j«xy such
charges does not fail to discharge any obligation
owing from him to a mortgagee of the said proper-
ties, and in purchasing such proix-rtics at a revenue
sale for uon-pavmeut of such charges, he does not
, gain an advantage as qualified owner m derogation
of the rights of the mr.rtgagee or other persons in-
I t^rested in the property so as to constitute hiin a
i constructive trustee for them under s. i»0 of the
I Trusts Act. Renga SniNiVAS.K ^^ '^ll'il^^.^''^:
\ pkak.^sa MrPALiAR (1906) I. L. R. 30 Mad. 87
i lyg Mortgage —

Charge Distinction between m-rtgage a.id charge
iscussed. GOBINDA ^^••^--■^,^;-';^'iS^:^8^4^^
B.C. i. L. R. 36 Caic. 867

76.

discussed.
NathP.4L(19<>S)

Tjrj Executor, also residuary

iBZAtee— Mortgage by— Legatee- s right to impeach
—Legacy darned on immovfull' prcperlu—Prwrtty
— Notice— Constrfictive notice— Delay— Consent. A
mortgage bv an executor, who is also residuary
legatee, to secure his private debt, though vaLd
a-" against creditors, may be set aside, even at

( 8403 )

DIGEST OF CASES.

( 8404 )

MORTGAGE— con/</.

2. CONSTRUCT IOX—coTi<(f.
the suit of a pecuniary legatee ; for the nature of
the claim of a legatee may be ascertained from the
will, whereas if a reasonable time has elapsed since
the death of the testator and then the executor deals
with the residue as his own, the purchaser may, in
the absence of notice to the contrary, assume that
the debts have been paid or that there are other
assets for payment of the debts, if any. Graham v.
Drummund, \l896'] 1 Ch. iiSS, distinguished. In
re Queales Estate, 17 L. R. (Ir.) 361, referred to.
When the mortgage was executed years after the
time fixed in the will for payment of the legacy
and the legacy had remained unpaid, the lapse of
time was a circumstance that might be taken into
consideration in determining whether the executor
acting with the consent of the legatee. Held, that
in the circumstances of the present case the rights
of the parties remained unatiected by the delay.
Bank of Bombay v. Suleman Somji (1908^

12 C. W. N. 993
s.c. L,. R. 35 I. A. 139

78.

Suit for redemption — Mort-

gage-deed— Construction — Accounts — Compound in-
terest— Maintenance costs — Enhanced Government
revenue — Arrears of rent, statute barred or other-
wise— Previous suit for possession — Account filed
therein — Edoppel — Res judicata — Recovery of costs
thereof — Practice — Point not taken before either of
the lower Courts, whether open before their Lord-
ships. On the construction of cl. (4) of the mort-
gage-deed, which provided that " in case of default
in payment by me (mortgagor) of instalments of
interest at the time herein appointed, the mort-
gagee shall have, immediately on such default
power either to recover the whole of his principal,
interest and (sud mazid munafa jnazkura) further
interest on the said interest according to the rate
herein fixed, ; or the said mort-
gagee shall in default of payment of the instalment
or instalments of interest aforesaid take possession
of the mortgaged property." Their Lordships
agreed with the lower appellate Court that the
mortgagor was not liable for compound interest
since the mortgagee entered into possession of the
mortgaged premises. Their Lordships upheld the
concurrent finding of both the lower Courts that
under the mortgage-deed in this case the mortgagee
was entitled to get from the mortgagor ov r and
above the usufruct of the mortgaged property
the amount paid by him on account of maintenance
and enhanced Government revenue. Under cl.
(10) of the mortgage -deed, which provided that
'• whenever after the term of the mortgage or dur-
ing the said term I (mortaagor) pay to the mort-
gagee in any khali fasl (fallow season), i.e., in the
month of .Jeth, the whole of the mortgage money
and the whole of the interest together with Govern-
ment revenue, arrears of rent and takavi advances
due from tenants, and other expenses incurred
under the terms of this document, without raising
any objection of law such as limitation, etc.. \,
the morttragor, shall have power to redeem the

MORTGAGE— con<«f.

2. CONSTRUCTION— con^rf.

mortgaged property," their Lordships agreed wi
the lower Courts that the mortgagee was entiti
against the mortgagor to arrears of rent due fro
tenants even when such arrears were statute barr
as against the tenants. The mortgagee had p[
viously brought a suit against the mortgagor <-
leging that at the date of the suit there was d
to him a sum of R33,087-13-3i and praying f
a decree for possession of the property or in t
alternative for recovery of that sum with furth
interest. A Commissioner appointed to make v
the accounts reported that R3:l,087-9-8^ we
due to the mortgagee at the date of the suit, t!
Court in giving judgment held that there n
no necessity for passing an order as to the amo;
due under the mortgage beyond saying that .
account was correct and then proceeded to gi
the mortgagee a decree for possession. The amoui
alleged to be due by the mortgagee and found di,
by the Commissioner was arrived at by calculatiii
compound interest on unpaid instalments of i.i
terest. It was contended by the mortgagee in !
subsequent suit brought against him by tl*
mortgagor for redemption of the mortgagt,
property that the decree in the previous si
must be accepted as settling the amount du.e i
the mortgagee at the date of that suit. Hei\
by their Lordships, who adopted the conclusii
of the lower Appellate Court, that nothing hd
occurred in the previous suit to raise an estopp;
against the mortgagor and therefore he might in ti!
subsequent suit show, if he could, that under t):
terms of the deed compound interest was not pa'
able. The mortgagee was not entitled torecov|
the costs of the previous suit in the absence of ai|
provision in that behalf in the mortgage -dee
Naseem v. Abbas Ali Khax (1907)

12 C. "W. N. 3<

79.

Construction

deed — Mortgage for a term of years — Profits to
in liquidation of debt — Redemption suit before t\
expiry of the period fixed. By a deed bearing da|
the 4th July 1903, it was provided that in con'*
deration of R725 advanced to the plaintiff
agriculturist), the defendant was to take posse-
of certain lands belonging to the plaintiff, for '-
years, and to apply its profits in liquidation of t
debt. The deed was headed " Lease in respt,
of Valatdan." Before the expiration of the perij
the plaintifi brought a suit for redemption of t
mortgage and for possession of the lands, allegij
that the transaction evidenced by the deed *
a mortgage. Held, that the transaction was,
mortgage. Tukaram v. Ramcliand, 1. L. R- 26 Bo
252, followed. Mahmad i-. Bagas AMAyji(19<
I. L. R. 32 Bom. 5t

80.

Consideration— 7'mH.s/er

Property Act {IV of 1SS2), s. 63. Partial faik
of consideration, effect of. Where in a mortgaj]
bond two considerations are stated, one of whi
is valuable and is separable from the other, eft

( 8405 )

DIGEST OF CASES.

( 8403 )

] DKTGAOE— roH/d.

2. CONSTRUCTION— co»/(/.

1 y be given to the instrument to the extent of
1 amount of the consideration that is valuable,
f I to that extent the transaction cannot be
r arded as fraudulent. Rajani Kumar Dass v.
( tR KisHORE Shaha (1908)

I. L. R. 35 Calc. 1051
B.C. 12 C. W. N. 761

iL Pre-emption— J/or<g'o!7e — Pro-

f y purchased by vendees subject to an unregistered
V tgage — Pre-emptors hound to take the property
Siiect io the mortgage. Property, the subject of a
8 , for pre-emption, was purchased by the vendee
8 ject to an unregistered mortgage for R99.
Ld, that the pre-emptor must take the property
8,'^ct to this unregistered mortgage irrespective
a'ue question whether he had notice of it or not.

I'iPAL V. GiBDHARI LaL (1908)

; I. L. R. 30 All. 130

'2. Mortgage by a Hindu

•V low ■without legal necessity — Destruction
ooroperty by fire — Mortgagees rebi.ilding the pro
py — Suit by revernioner at ividow's death to
frer possession of property — Mortgagee not
e Hed to claim repairs or to remove the constriic-
ii before delivering possession. A Hindu widow
ii -rited a shop from her son and mortgaged it
w lout any legal necessity recognized as such by
h du law. The property having been destroyed
b loods, the mortgagees rebuilt it with their own
n'ley. At the widow's death, the reversioner
E i to recover possession of the property free
fi n all incumbrances. Held, that the mortgagees
B] It the money while holding the property under
a lortgage not binding on the reversioner, and
w:it they did must be presumed in law to have
b;i done unauthorizedly so far as that rever-
«i er was concerned. Held, further, that the
b.ding having been treated by the mortgagees
a- property mortgaged to them by the widow
wjiout legal necessity, there was no equity aris-
11, in their favour as against the reversioner,
*;' was entitled to recover it in the condition in
*|-"h it was when the widow died. V inayakrao
"^Vidyashankar, 9 Bom. L. R. 0-1, Pr,mji Jivan
tU V. Haji Cassum Juma Ahmed, I. L. R. 20
i-\^- 298, and Narayan v. Bho agir, fi Bom. H. C.

L. E. 32 Bom. 32

{•j C. J.) SO, distinguished. Vrubhtkandas

Ij'-ABAM (1907) . . I.

|3 - Future interest — Constntc-

»»j of decree on mortgage — Decree under ss. S6 and
. i ^''"^fer of Property Act (I V of 1S.S2)—'' Future
nWcst '"— Power to give interest after date fixed for
P\metU— Interest to date of realization of mortgage-
"v In a suit for foreclosure a conditional decree
wi made under as. 80 and 88 of the Transfer of
f iperty Act (IV of 1882) for the sum due for prin-
cijl and interest on the mortgage, and for costs,
K redemption on payment of the amount so due,
th future interest at 7 annas per cent, per
S ^u" ^^V^ *'^^ '-^^^^ °^ ^"'t' on or before the 18th
a ch 1907," and for sale on default of payment .

MORTGAGE— con/</.

2. CONSTRUCTION— concW.

and the decree was made ab.solute on 25th June-
1898 : Held, on the construction of the decree,
that on such default the plaintiffs were entitled in
execution to •' future interest at 7 annas per cent.,
per mensem," after the date fi.xed for redemption
and up to the date of realization of the entire
amount. Maharajah of Bharatpur v. Kanno
Dei. I. L. R. 23 All. IS ; L. R. 2S I. A. 35, and
Sunder Koer v. Rai Sham Krishen, I. L. R. 34
Ca c. 150 ; L. R. 3 I. A. 9, followed. GokcldaS
V. Ghasiram (1907) I. L. R. 35 Caic. 221

s.c. 12 C. W. N. 369

84. Personal decree— /n/er€.->( —

Power of Court to set aside fv jarfr decree —
Transfer of Property Act (IV of ls.s2), s. 90 —
Succession Cert ficate Act {VII of 1S.S9), s. -/. A
decree under s. 90 of the Transfer of Property
Act having been made ex parte : H^ld, that there
is inherent jurisdiction of the Court to set it
aside. Bihi Tas iman v. Harihar, I. L. R. 32
Calc. 253, followed. Held, further, that if the de-
cree be a personal decree for a large sum, it ought
not to have been made ex parte. A decree can only
be passed under s. 90 against a defendant, from
whom the balance is legalU' recoverable. Having
regard to s. 4 of the Succession Certificate Act,
the Court cannot pass any decree under s. i;0, in
favour of the representative of the mortgagee, if no
certificate has been granted to him, and a grant of
the certificate subsequent to the passing of the
decree under s. 90 is not sufficient to get rid of the
difficulty in his path. Abdul S attar r. Satva
Bhushax Dass (1908) . I. L. R. 35 Calc. 767

3. POSSESSION UNDEPv .MuRTiiAGE.
1. ^ — Rights of mortgagee in

possession. A mortgagee taking jw.-se.^.-iun un-
der the terms of the mortgage is entitled to have
the property in the same condition as it wa.s in
when it was mortgaged. Gobind Ciunder
Baxarjee v. Wise ... 12 W. R. 19

Covenant for possession

by mortgagee. Omission to give /)o-.*f >-ion —
Right to sue for mortgage -monfy. A deed of mort-
gage and conditional sale contained a covenant for
possession by the mortgagee during the mortgage
term. Possession was withheld, though the mort-
gagor received the mortgage-money. He d. that
an action would lie by the mortgage against the
mortgagor for recovery of the priiKi|>al and interest
money advanced. OoDiT Pl•RKA^^H Sinoh r . Mar-
TiXDELL .... 4 Moo. I. A. 444
3. — Obstruction in getting pos-
session— Usufructuary mortgage — Right of mart-
ga'/'C to sue for mortgage-money — Tran-'^fer of Pro-
perty Act (IV of 1SS2), s. >is (b) and (c). A usu-
fructuary mortgagee, to whom po.><.ses.sion of the
mortgaged projxrty had been delivere<l. sued the
mortgagor for the mortgage-money on the ground
that the mortgagor had sold a part of the mortgaged
property, and the purchaser had deprived him of

( 8407 )

DIGEST OF CASES.

( 8408 )

"M O RTGAGE— coH/f7.

MORTGAGE - contd.

3. POSSESSION UNDER MORTGAGE— cow/rf. 3. POSSESSION UNDER MORTGAGE-<;o

Mortgagee

of such part. One of the conditions in-
serted in the deed of mortgage was that, if " on the
part of the mortgagor, or other persons, any kind of
dispute or any interference or obstruction took
place in obtaining of possession by the mortgagee
of the mortgaged property," the mortgagee should
he entitled to sue for the mortgage-money. Held,
that such condition contemplated the case of the
mortgagor, in the first instance, in breach of the
conditions of the mortgage, failing to deliver pos-
session to the mortgagee or to secure his possession
from any obstruction or disturbance by other
persons, but not the case of the mortgagee being
deprived of possession after it had been once ob-
tained and secured, and therefore the mortgagee
was not entitled by virtue of such condition to sue
for the mortgage-money. Held further, that the
mortgagee's case being that he had been dejjrived
of possession of a part of the mortgaged property,
he would be entitled to sue for the mortgage -
money only if he had been deprived thereof by
or in consequence of the wrongful act or default
of the mortgagor, and not if he had been deprived
thereof by or in consequence of the wrongful act
or default of other persons ; that the sale by the
mortgagor was not a wrongful act, there being no
condition against alienation, and the sale by a
mortgagor of his equity of redemption not being
rendered Avrongful or xinlawful by any rule of law ,
nor being in itself a wrongful act ; that a wrongful
act by the purchaser, though committed under
colour of the purchase, could not be said to have
taken place " in consequence of the wrongful act
or default of the mortgagor ; " and that therefore
the mortgagee had no cause of action. Jhabbu
Ram v. Girdhari Singh . I. L. R. 6 All. 298

4. Dispossession of mortgagee

— Usujc ctburii mortgage — Construction of deed —
Suit for money lent on dispossession. The plaintiff
sued to recover money due on a mortgage-bond
alleged to have been executed by the defendant's
late husband S, and by his brother J, who. however,
was relieved by the yjlaintiff from the debt. The
conditions of the bond were that the plaintiff's
father should possess the mortgaged property in
consideration of interest only accruing upon the
principal sum lent, and that the mortgagor should
take back the property, whenever he should pay
the principal sum to the mortgagee. The present
suit was brought by reason of the plaintiff having
been dispossessed of the property by the share-
holder brothers A and J. Held, that the money
lent was recoverable notwithstanding there was no
express condition in the bond to the effect that it
would be recoverable in the event of dispossession
by a third party. But as the money was found
to have been borrowed by the defendant's hus-
band on behalf of the family with the tacit con-
sent of the other members, the plaintiff could re-
cover from the present defendant only her share
'of the debt. Gyaeam Ciiuckerbutty v. Buroda
Dabee 20 W. R. 484

possessed of portion ef property by wrongful ac >/
mortgagor— Bight to return of portion of ki.
Where a mortgagee was deprived by the wromii
acts of the mortgagor of a portion of the land wlh
constituted the only security for the mortgage-h •
— Held, that he was entitled to recover'' from h
mortgagor so much of the consideration-moneys
was in proportion to the land of which he' J
been deprived. Pitambur MisseiJ v. Ram Sui n-
SooKooL 25W. 17

6. Mortgage by conditio],!

sale — Mortgagee in possession but af-
wards dispossessed — Suit for foreclosure ,d
recovery of possession — Nature of possessii-
Right of redemption. A mortgagee by conditio .1
sale who was put into possession of the mortgad
property from the date of the mortgage and whis
entitled under the mortgage-deed to hold possess n
is entitled, when wrongfully dispossessed, to .sec e
possession of the property by a suit brought witn
time, although his claim for foreclosure may e
barred by limitation. The possession recovered!,
however, possession as mortgagee .subject to e
mortgagor's right of redemption. Aman Aid.
AzzAR Ali Mia . . I, L. R, 27 C Ic. ]5

Right of mortgagee in pi

session to proceeds of sale — Sale for arrcs
of revenue. A mortgagee in possession is noti-
titled to recover any share of the sale-proceiS
of the mortgaged property sold for arrears of G'-
ernment revenue, except to the extent that.e
shows that the usufruct of the property, ■nle
he held the mortgage, has not satisfied his dt
HuRDEO Narain Sixgh v. Euzla Hossein

IW. R. .0

Mortgagee in possess n

under an agreement to pay rent to mct-
gagor — Vsafructuary mortgage — Accidental e-
struction of mortijaged premises by fire — Righol
mortgagor to rent. The plaintiff borrowed RIXI
from the defendant, and mortgaged to the latteipr
eight years a piece of ground with a warehcse
standing thereon. There was an agreement *>•
tween the parties that the rent of the wareln'"
should be IJ 16-12-0 per mensem, and that o .
this amount the mortgagee should appropriat-
towards the payment of the interest on the prin
sum, and pay R2-12-0 as rent to the mortira
Within fouF years from the date of the mort:
the warehouse was destroyed by fire, and therei
the mortgagee ceased to pay rent to the mortgapi.
The latter sued to recover the site together p
arrears of rent. The District Judge was of opi{>n
that the defendant should lose the interest onbe
loan up to the late of the term for the redemp''"
of the mortgafre, and that he was bound to "
to the plaintiff the lent claimed by him. Hd'
Innes, J., that the loss of the premises, which
arisen from accidental causes could not a
defendant's right to recover the full amount

( 8409 )

DIGEST OF CASES.

( 8410 )

OBTG AGE— con <rf.

MORTGAGE— CO/7 ^f.

POSSESSION UNDER MORTGAGE— co«<c/. 3. POSSESSION UNDER MORTGAGE— eon<rf.

him on the mortgage. There was no alter-
:on in the liability, but merely in the source
il mode of discharge. The premises having
iised to exist, nothing arising from the income
I lid be credited towards the mortgage, and there

3 no residue available to pay plaintiff. Held by
;-TTUSAMi Ayyar, J., that defendant's right of
:wession rested on the usufructuary mortgage
li not on tenancy, and his right to recover his
<;bt with interest thereon could not be extin-
1 shed or modified by the destruction of tlie ware-
lljse. As to the surplus payment, the existence
(the warehouse, which produced the income of
•^6-12-0 a month, was the basis of the contract to
I kc it ; and the basis having failed, the obligation
i|:.'ng thereon must likewise fail. Venkatesh-
tBA V. Kesava Shett . I. L. R. 2 Mad. 187

'),

Deprivation of security by

j'ongful act of mortgagor— iJ/g^Ai to return
I'.onsideration. Where money is lent on a mort-
j re-deed, on the condition that, if returned with
i erest within a given period, the property pledged
all revert to the mortgagor, and the mortgagee
Ids afterwards that the property in question is
( jject to a prior mortgage as to which he was not
iormed, and that he is therefore without the
f|)posed security, he is at liberty to sue for the
rum of the money advanced with interest without
viting for the expiry of the stipulated period.
] DHA Churn Shaha v. Parbuttee Churn Dutt
25 W. R. 52

0. Mortgagee deprived by di-

l/ionof subject of mortgage — Usufruct nmy
irtgage. Where a mortgagee is deprived by dilu-
'jn of the possession of land over which he holds
«i usufructuary lea.se before he has repaid him-
8|' the amount advanced, he has a 'right, unless the
<|ms of the lease are very special, to call upon the
IboT for the unpaid balance of the loan. Sheo
(lam Singh v. Roy Dinker Dyal

21 W. R. 226

Mortgage

in possession,

I'bility of, to protect the mortgaged pro-
I'fty from claims under a paramount title
-\ioni. Beg. V of 1S27, s. lo— Limitation for a suit
^jecouer debt personally from the viortgagor where
i\'igage-deed contains no personal undertaking
c repayment. By a registered mortgage-deed,
ted the Uth May 1876, the defendant mort-
i ed certain land with possession to the plaintiff
f a term of five years, the mortgage-deed stipu-
Ingthat the plaintiff was to enjoy the profits,
I' the assessment for it, and restore it to the
c 2ndant on repayment of the debt. But no per-
8 al undertaking to pay was given by the dcfend-
■ . The land was sold by the revenue authorities
f arrears of assessment due from the defendant for
c :ain other land of the defendant. The plaintiff
sought to recover the debt personally from the
ndant. The Court of first instance dismissed
plaintiff's claim on the ground that the failure

on the part of the plaintiff to pay the arrears of'
as.sessment disentitled him to recover the debt from
the defendant personally. The plaintiff appealed
to the District Judge, who referred the ca.se to the
High Court. f/^W.'that the plaintiff was not bound
to save the mortgasred property from claims under
a paramount title, his liability being confined under
the terms of the mortgage to the payment of assess-
ment for the property mortgaged' which he had
duly discharged, and"that the case did not fall
under s. 15 of Regulation V of 1827. The mortgage
con.sideration for the debt having failed, the debt
was recoverable within three yeans — the registered
mortgage-deed containins no personal undertaking
by the defendant (mortgagor: to pay the loan.
Shwaba Khaxdapa v. Abaji .Totirav

I. L. R. 11 Bora. 475

12. Liability to mortgage lien

of lands allotted under partition in ueu of
share mortgaged— /.fl/iY/ nllnttpd in .^fv.ralli/ to
co-sharer-f of mortij'iqnr. .\ mortgage of an un-
divided share in land may be enforced against lands
which under a batwara or revenue partition have
been allotted in lieu of such sliar- whether such
lands be in the po.ssession of the mortgagor or of
one who has purchased his right, title, and interest.
Lands allotted in severalty by the batwara to
the CO -sharers of the mortgacror are not subject
to the mortgage. The case of Sidhee Nurttr Ali
Khan v. Ojoohdyaram Khan, 10 Moo I. A. offi,
approved. Byjnath Lall v. Ramoodeex Cnow-
DRY . . L. R. II. A. 106 : 21 W. R. 233
13. Transfer of mortgaged pro-
perty by mortgagee in exchange for similar
property — Right of mortgagor to property ac-
quired by exchange. In 18H.5 A' was in pos.session of
six shops in a market-place at Etawah. He
was in possession of two as mortgagee, and i)f the
remaining four as proprietor. The Municipal
Committee of Etawah having derided to establish
the market in a fresh place, and to use the .site of
the old market for other purposes, arranged with
A" to take the sites of his six shops in the old
market-place, and to give him in lieu of them sites
for six shops in the new. I Mdii this arrangeuie t.
he built six siiops n the new market-place. Subse-
quently, the mortgagor of one of the old shops
claimed possession of one of the six new ones on
payment of the mortgage-money and cost of con-
structing the shop. Held, that the claim could not
be allowed, inasmuch as it could Ije justified only by
proof of an agreement binding upon the partieji
at the time when the tran.saction occurred that some
specific one among the new shops should l)c substi-
tuted for the old one which was the subject of the
mortgage, and it had not lieen found that any
such agreement was made. Ninni Lal v. Mazhar
HusAiN . . . . I. L. R. 7 All. 436

14.

Sa!e to mortgagee of por-

tion of mortgaged property— /^«-s(ie to mort-
gagor— Decree — Equitab e right to uho e of pro-
perty mortgaged. A mortgaged a 14-anaa share ia

( 8411 )

DIGEST OF CASES.

( 8412 )

MOETGAGE ^conUL

3. POSSESSION UXDER MORTGAGE— conirf.

a certain mouzah to B. B obtained a decree on his
mortgage-bond. Subsequent to this decree B
bought from A a 2-j.nna share in the mouzah,
but at a later period resold the share to A. In exe-
•cution of another decree which B had obtained
against A, the 12-anna share in the mouzah
belonging to .4 was put up for sale and purchased
by B. B next applied for execution of the decree
he had obtained on the mortgage-bond, seeking
to sell the 2-anna share which remained in
the mouzah as part of the property mortgaged
to him. Held that, so long as A had only a 12-
anna share of the property in his possession, B's
security was of necessity reduced to that amount,
but on A's again becoming the owner of the whole
14 annas, B had an equit#)Ie right to demand
that the 14th annas should be held subject to his
mortgage. Deolie Chamd v. Nirban Singh

I. L. R. 5 Gale. 252 . 4 C. L. R. 150

15.

Mortgage of property of

which mortgagor is not, but afterwards
becomes, owner. If a pers m mortgages property
of which he has no present ownership, and subse-
quently becomes the owner of the mortgaged
property the lien created by the mortgage
attaches to such ownership, and subsequent pur-
chasers from the mortgagor take subject to the
equities which affected the property in the hands
of the mortgagor. Mahomed Assudoollah
Khan v. Karamutoollah . . 4 W. W. 11

16. Mortgage of moiety of pro-

perty in reversion — Mortgagor subsequently
■inheriting moiety — Bights of mortgagee in execution
of his decree. A, having mortgaged an 8-anna
share of certain property which he had inheri-
ted from his father, subsequently succeeded
to the remaining 8-anna share in the same
property. It appeared that in respect of the pro-
perty mortgaged A was entitled only to a rever-
sion on the death of his mother. Held, that the
holder of a mortgage-decree on the mortgage was
not at liberty to proceed against the other 8-anna
share. Nistarini Debt v. Brojo Nath Mook-
hopadhya . . . 10 C. L. R. 229

17.

Successive mortgagees-

Right of po session of mortgaged lands as between
first and second mortgagee — Suit on mortgage by first
mortgagee, second mortgage': not being joined — Decree
for sa'e, and subsequent purchase of the-Iands by
first 'mortgagee — Possession by first mortgagee —
Suit by second mortgcigee against first mortgagee,
decree for sale, and purchase by second mortgagee —
Delivery of possession to second mortgagee — Right
of first mortgagee to recover possession. A mort-
gagee sued and obtained a decree on his mortgage,
and brought the mortgaged land to sale in execu-
tion of that decree. In that sale he purchased the
and, which he subsequently sold to R, who obtained
possession of it. At the date of the suit, a second
mortgage existed over the land, but the second
mortgagee was not made a party to the suit. The

MORTGAGE— CO n/rf.

3. POSSESSION UNDER MORTGAGE— co«(

second mortgagee then brought a suit against
and others, and obtained a decree authorizing 1i
sale of the land subject to R' s rights. The la;
was again sold, and was purchased by the seco
mortgagee, whose successors in title were in d:
course put into possession of it. R now petition
the Court for an order setting aside the delive
of possession to the successors of the second mo
gagee. Held, that R was entitled to possessic
Muhammad Usan Rowthan v. Abdulla (1900)
I. li. R. 24Mad.l

18 Suit by fi

mortgagee on mortgage — Failure to join subsequi
mortgagee — Decree — Sale in execution of decre"
Purchase by first mortgagee of mortgagor's undivi
interest in mortgaged property — Subsequent suit j
partition and possession — Right of second mo
gagee .to redeem. In 1886, two defendants mo-
gaged certain property to plaintiff. In 1891, t
same defendants executed a second mortgage o\
the same property in favour of the present thi
defendant. In 1894, plaintiff brought a suit
his mortgage document against the mortgago
but he omitted to make the present third defends
a party though the latter was in possession, at t
time, as mortgagee under his document of 18Ji
Plaintiff obtained a decree, and the undivided slia
of first defendant in the mortgaged property w
sold at a Court auction, and was purchased
plaintiff, who now brought the present suit }
partition and for the recovery of first defendan'
share. Third defendant contended that he w
entitled to redeem plaintiff. Held, that plaint
was not entitled to obtain posse.-ision without pa
ing off the third defendant (second mortgage
and it was immaterial v.'hether plaintiff's faili
to join the second mortgagee as a party to t
previous suit was wilful or due to ignorance of t
fact that a second mortgage existed. Rangasa?
Naiken v. Komarammal (1902)

I. L. R. 2 Mad. 4i

19. Usufructuary mortgage

Usufructiia'-y mortgage of zamindari and sir—h
by mortgagor of proprietary rights — Mortgage to to
effect against ex-proprietary rights of mortgagor^
Mortgagor not entitled to relinquish ex-proprietai
rights to the zamindar — Act XII of 18S1 (N.-W.
Rent Act), s. 31. A zamindar, having mortgag)
by way of usufructuary mortgage his zamindai
together with his sir land, lost his zamindari lighi
and became an ex-proprietary tenant of the «|
Held, that tlie usufructuary mortgage did n-
become ineffectual but took effect as a mortgaj
of the ex-proprietary rights. Moody v. Matheu
7 Ves. 1!4; Hughes v. Howard. 25 B. m
Trmnper v. Trumper, L. R. S Ch. 870 ; Khiali Rd,
V. Nathu La', I. L. R. 15 All. 219, and Sukru\
Tafazzul Hussain Khan, I. L. R. 16 All. 39^
referred to. He'd, also, that in such a easel
above, the mortgagor, ex -proprietary tenant, cou'
not, to the prejudice of the mortgagee, surrend
to the zajwindar his ex-proprietary intereJ

( 8413 )

WGEST Ub- CASES.

( S414 )

lOETGAGE— row/fZ.

{. POSSESSION UNDER MORTGAGE— con/rf.
ladri Prasad v. Sheo Dhian, I. L. R. IS AH 354,
•{erred to. Sham Das v. Batul Bibi (1902)

I. li. R. 24 All. 538

20. S%iit forredemp-

<m on ground that mortgage-money has been paid
^ by usufruct — Accounts — Whether mortgagee
able jor gross renta', as shon-n in jamabandi, or
nly for such sums as he actually receives. In a
ait for the redemption of a mortgage with posses-
ion, as having been paid off by the usufruct, where
16 mortgage -deed was found to partake of the
laraoter of an agency or receivership deed as well
i of a usufructuary mortgage, the Judicial Com-
mittee held, that, under the deed, the mortgagor was
-.titled to call upon the mortgagee to furnish

•ounts of receipts and payments ; and, also, held
eversing the decision of the High Court), that on
16 true construction of the deed, the mortgagee was
'3t responsible for the amount of the gross rental
\i shown in the rent-roll, but only for such sums
\i were actually received by him or on his behalf,
id for such sums, if any, as might have been re-
;ived by him but for his own neglect or fault.
jANAKSi Prasad v. Ram Narain (1903)

I. L. R. 25 All. 287
s.c. 7 C. W. N. 514

21.

Transfer of Pro-

erty Act (I V of 1S82), s. : 2 — Mortgagee in possession
^tpending money to defend his title against mort-
igor. A mortgagee in possession is, under s. 72
f the Transfer of Property Act (IV of 1882), en-
tled to add to his mortgage-debt, in the absence
]! a contract to the contrary, sums spent by him
|>r making his own title thereto good against
;ie mortgagor. The mere fact that in a redemp-
lon suit the mortgagee in possession did not give
|etails of the sums either in the coaise of
|ie trial or in h s writte i statement is not
|iflBcient to deprive him of his right, seeing
lat those details can be gone into after the re-
pmption decree providing for an account has been
jwsed. Datta Ram r. Vixayak (1904)

I. L. R. 28 Bom. 181

22. Successive mortgages —

lie— Rival purchasers — Possession, right to —
jbsequent sale under prior mortgage — Right of
urchaser—Form of suit— Lis pendens. Where
e first mortgagee, not having notice of a
cond mortgage, sued the mortgagor alone
id obtained a decree on his mortgage and
e assignee of the decree, having in execu-
»n purchased the property, which had been
eviously purchased and taken possession of
' _ the second mortgagees in execution of
eir subsequently obtained decree (to which
e first mortgagee was not a party), on the
cond mortgage, sued the latter more than
' years after the due date of the first mortgage,
r possession of the property, gi^-ing them the
jtion to redeem : Held, per Bkett and Mitea,
•, that he was entitled to a decree for possession,
failure of the defendants to redeem. Banwari

MORTGAGE-ron/,/.

^ P( SSK.^SION UNDER M()RTGAGE-con/(f.
Jha V Ramjee Thakur. 7 C. W. N. 11, followed .
Nanack Chand v. Taluckdye Keor, I. L. R. 5 Cac

So'\ J^"^-\^^' ''• ^"^"^'''^ ^- ^- ^- 5 Cole.
269 dis^tinguished. Held, per Rampixi, J. icontra\
that the plaintiff was not entitled to possession
the right to possession depending on the priority
of purchase and not on the priority of mortgage •
and as the suit was not one on hi's mortgage lien
and as his right to bring a suit to enforce .^uch
lien was barred by limitation, the plaintiff was not
entitled to ask to be redeemed. Per Mitr*, J —
The title of a purchaser at a sale in execution of a
mortgage decree relates back to the date of the
mortgage and the defendant's mortgage being
prior in date to the suit on the first mortgage their
purchase was not affected by the pendency of that
^Ti*'*'^*'^'"^ ^w«w Momtazuddeen Mahomed v
Ra) Coomar Doss, 23 W. R. 187, referred to. Per
Brett, J.— The defendants were bound by the
doctrine of Us pendens. Har Persad L \l r ' Dal-
MARDAN Singh (1905) . I. L. R. 32 Calc. 891

23. _ — Adverse possession— .1/or/-

gagee— Possession adverse to mortgagor not ad-
verse to mortgagee, until oinurship re.-(s in him
Possession of mortgaged property by a person
claiming under a purchaser of the 'property at
a sale in execution of a decree against the mort-
gagor for rent due in respect thereof cannot be
treated as adverse to the mortgagee. The Statute
of Limitation would not run against him, until the
ownership in and beneficial title to the land vested
in him for the first time under the decree and sale
on his mortgage. Pugh v. Heath, 7 A pp. Cn.^. 23o.
referred to. Aimadar Maxdai, r. .M vkhw L\l
Day (190(5) . . I. L. R. 33 Calo. 1015

s.c. 10 C. W. N. 904

24. Mortgage by conditional

Bale— Benga' Regulation X VII of ISoU— Mort-
gagee tfiking possession, according to 8ti,,> Intion,
on mortgagor's death, but without foreclosure—
Whether a trespasser— Suit for ejeclmctU by /.tirs
of mortgagor — Mortgagee's claim to be redeemed
— Mahomedan marriage — Ghair kuf irife, right of.
to inherit — Custom — Proof — Wajib-ul-arz. A mort-
gage-deed, dated 11th May 1871, provided that
the mortgagor should pay up at a prescribed time,
but that if he died within the fixed period, then the
transaction should be considered as a " complete
sale " of the hypothecatetl properties to the mort-
gagee. The mortgagor dying before the presiribcd
time, the mortgagee, without instituting any
foreclosure, proceedings, entered into possession.
Held, that tliis was a mi'rtgage by way of condi-
tional sdc within the provisions of "th.- Bcniial
Regulation XVII of ISOO, and thai under that
Regulation the mortgagee had no riglit to enter
into possession without instituting foreclosure
proceedings. The heirs of the mortgagor were
therefore entitled to sue him in ejectment as a
mere trespasser. HrB Ali r. Wazircxniss^
(1906) . . . . I. L. R. 28 All. 496
s.c. 10 C. W. N. 778
Lu R. 33 I. A. 107

( 8415 )

DIGEST OF CASES.

8416 )

MORTGAGE— f on fi.

3. POSSESSION UNDER MORTGAGE— co^icW.

25. — Transfer of Property Act

(IV of 1882 -, s. 50— 31 ortgage with posses-
sion — Lease to mortgagor — Death of the mort-
gagee and his surviving undivided brother — Sister
entitled as heir — Possession and management by
mortgagee's undoic — Payment of the rent by the
tenant in good faith to mortgagee' s widoiv — Suit by
sister for recovery of rent — Assignment by 'essor not
necessary. On the 14th December 1895 Lingappa
mortgaged with possession certain property to
Subraya who on the same day let out the property
to Lingappa for twelve years. Subsequently
Subraya having died his interest as mortgagee
survived to his undivided brother Ramkrishna.
Ramkrishna died in the year 1901 and thereafter
possession and management of the property was
taken by Subraya' s -n-idow Gowri. She got her
name placed on the khata as owner of the property
and recovered rent from the tenant for the years
1902 and 1903. The person entitled to the" pro-
perty was Kaveriamma as the sister and heir of
Subraya and Ramkrishna, and she brought a suit
against the tenant for the recovery of rent of the
said years on the ground that Gowri had no au-
thority to receive rent and give discharge for the
same. Held, that the defendant was not chargeable
with rent sued for. S. 50 of the Transfer cf
Property Act (IV of 1882) was applicable inasmuch
as the defendant in making the payment to Gowri
acted in good faith and had no notice of the plaint-
iii's interest in the property. The language of
the section is general and no assign -i ent by tho
lessor during the tenancy was necessarj'. Kaveri-
amma V. Lingappa (1908) . I. L. R. 33 Bom. 96

4. POWER OF SALE.

1. Sale of mortgaged land in

mofussil — Deed in Eng ish form. A sale, with-
out the intervention of a Court of justice of mort-
gaged lands situate in the mofussil of Bombay,
under a power of sale contained in an indenture of
mortgage in the ordinary English form, is valid, it
due notice be given to the mortgagor of the mort-
gagee's intention to sell, and the sale be fairly con-
ducted. Position of a mortgagee selling under his
power of sale explained. Pitambee Narayandas
V. Vanmali Shamji . . I. Ij. R. 2 Bom. 1

2, Redemption, suit

for Injunction. When property mortgaged is

situated in the mofussil, but the parties to the
mortgage are resident in Bombay, and the instru-
ment of mortgage is in the English form, the parties
must be l,eld to have contracted according to Eng-
lish law, and to be entitled to enforce their rights
according to that law. In such a case the mort-
gagee can exercise a power of sale contained in the
mortgage-deed, and cannot be restrained from
exercising such power, merely because the mortgagor
has filed a suit for redemption. The mortgagor can
only stay the sale pendente lite by paying the
amount due into Court or by giving prima facie

MORTGAGE— con<d.

4. POWER OF SALE— contd.

evidence that the power of sale is being exercia
in a fraudulent or improper manner, contrary to t
terms of the mortgage. Jagjivan Nanabhai
Shridhar Balkrishna Nagarkar

I. L. R, 2 Bom. 21

3. Sale to mortgagee und(

po'wer of sale — Effect of such purchase by mo-,
gage — Tit e acquired by Aim. A mortgagee pi
chasing the mortgaged property with the consent
the mortgagor, under the power of sale contained
the mortgage-deed, acquires an unimpeachable tii-
derived from the power of sale, which is altogetb
distinct from and overridrs his title as a mere i
cumbrancer : the effect of such purchase being
vest the ownership of, and the beneficial title
the property for the first time in himself, who hi
been previously a mere incumbrancer. Purmaj? ax
DAS JiwANDAS V. Jamnabai I. L. R. 10 Boui. A

4. Private sale without inte

vention of Court. Semble (Per Melvill, ./.
That a private sale effected by a mortgagee
the mofussil without the intervention of a Court
pursuance of a power of sale given to him under b
instrument of mortgage is invalid. Keshavrj
Krishna Joshi v. Bhavanji bin Babaji

8 Bom. A. C 14

Exercise of power of sa.

— Mortgagee with lease which he has the option
terminating on sale — Notice to mortgagee. Whe
a mortgage-deed gave to the mortgagee an optio
in the event of a sale of the interests of the moi
gagors, to throw up a lease which he held fro
them for the mortgaged jote and claim immedia
payment from the surplus sale-proceeds : — Bel
that before the mortgagors could withdraw tl
surplus proceeds from the Court, it would
necessary for them to give notice to the mor
gagee of their intention to do so. Bhoobuh J(

ACHAKJEA V. AnUND LaLL ChOWDHRY

22 W. B. 4

6.^ Usufructuary mortgage

Transfer of Property Act, s. 67 (a) — Remedy
mortgagee. A usufructuary mortgagee is not e
titled, in the absence of a contract to th
effect, to sue for sale of the mortgaged propert
Semble : The construction placed on s. 67 (a) of t:
Transfer of Property Act. 18S2, in Venkatasami
Subramanayn, I. L. R. 11 Mad. SS, that a usufru
tuary mortgagee can sue either for foreclosure
for sale, but not for one or other in the alternativ'
is wrong. Chathu v. Kunjan

I. L. R. 12 Mad. K

Surplus sale-proceeds— -Si,

plus proceeds of sale in hands of mortgagee':
Interest charged against mortgagee on such si
plus from date of sale. A mortgagee, who una
his power of sale has, sold the mortgaged propert
must refund to the mortgagor any surpl
moneys remaining in his (mortgagee's) nan
with interest at six per cent., i.e., the Cou

( 8417 )

DIGEST OF CASES.

( 841S )

WRTQAQH—contd.

I 4. i;OWER OF SALE— contd.

lite, from the date of the completion of the sale-
BDFL Rahman v. Nook Mahomed

I. L. R. 16 Bom. 141

8. Mode of recovering mort-
age money — Form of mortijuqe — Bom. Reg. V
{ 1S27— Transfer of Property Art (IT of 1SS2),
1 57. Where a mortgage provides that posses-
ion of (he mortgaged property, if taken b}' the
iiortgagee, is onl}- to be taken for securing due
:ayment of the interest, the mortgagee paying the
jiianoe (if any) of the profits to the mortgagor,
;ie mortgage is not a usufructuary mortgage, "but
I simple mortgage, and is governed by the general
U' applicable to mortgages of this nature. In such
- I- ase although there is no covenant to pay the
.j-mcipal other than that implied in the statement
iiat the principal has been received, and that the
I'operty has been mortgaged for the stipulated
irm of years, and although there is no express
ovision that it is to be recovered from the mort-
'iged property, Regulation V of 1S27 gives the
jortgagee the right to bring the property to sale,
'id s. 67 of the Transfer of Property Act (IV of
182) confers upon him the same privilege. Yash-
iXT Nakayan Kamat v. Vithal Divakar Paru-
;kar . . . I. L. R. 21 Bom. 267

9- Notice of sale — Tran.^fer of

■opert^ Act, .?. 69 (1)— Invalid condition as

\notice of sale. In a deed of mortgage of pro-

[rty, situate within the town of 1\ladras, it

1- provided that a power of sale misht be exercised

liftecn days' notice. The property was sold.

'hat (s. 9 of the Transfer of Proi^erty Act,

'. requiring three montlis' notice before such a

v.LT of sale shall be exercised) the condition as

notice was invalid, but that the sale was never-

eless valid. Madras Defosit asd Benefit

ciETY V. Passanha . I. L. R. 11 Mad. 201

^"- Notice of sale

Subsequent mortgage of same properly — Notice

sale to subsequent mortgagors — Notice of sale to

)8€quent mortgagees— Delay in selling — Bescis-

n of notice of sale— Suit by second mortgagee to

iverit sale— Offer to redeem joint mortgage —

7^< of mortgagee — Injunction to restrain sale. Cer-

n property was mortgaged to the defendants in

55forR60,000,andthe mortgage-deed contained

■ "<m\ power of sale on notice to the mortgagors

' ir assigns. The debt was not paid, and

I'fendants, on the 31st August 1891, gave

of sale to the mortgagors, but did°not

riocced further in the matter. Three days

•dns notice, viz., on the 3rd September

^'1. the mortgagors mortEraged the property

the plaintiffs for iUO,UU'o. On the ISth

i-i-ember 1S92 the plaiutilis by letter offered

iisfer their mortgage to the defendants ob

II with them in selling the property. In the

"f their being unwilling to accept either of

proposals, the plaintiffs requested the dcfend-

t > render an account of the sum due to them

-er that they (the plaintiffs) might, if so ad-

VOL. III.

I MORTGAGE— con^rf.

4. POWER OF SALE— contd.
vised, redeem the defendants* mortgage. On the
3rd December 1892 the plaintiffs by letter enquired
whether the defendants were willing to re-convey
the mortgaged proixrty on payment of a certain
sum, which was less than the amount tiie defendants
claimed, but they did not po.sitively offer to pay the
defendants either that amount or the amount which
miglit be found to be due. In April 1S03 the de-
fendants advertised the property for sale on the
27th of that month without giving notice of sale to
the plaintiffs, and on that day the plaintiffs filed
a suit and obtained a rule, restraining the dcfend-
■ ants from proceeding with the sale. In the argu-
' ment of the rule it was contended for the plaintiffs,
; first that the defendants had no power to Hell, be-
! cause their mortgage-deed required previous notice
I of sale to be given to the mortgagors or their assigns
and no such notice had been given to the plaint-
i tiffs who, as subsequent mortgagees, were assigns
of the equity of redemption ; secondly, that the
notice of sale given to the mortgagors on the 31st
j August 1891 had been rescinded, and a fresh notice
! was therefore required ; and, thirdly, that inasmuch
I as the plaintiffs were willing to redeem the defend-
I ants' mortgage, the sale should be restrained.
Held, (i) that notice to the plaintiffs was not neces-
sary. Proper notice had been given to the mort-
gagors on the 31st August 1891, three days before
the plaintiffs had acquired any interest in the equity
of redemption. No further notice was required to
be given to any person who at that time was not an
assign, in order to enable the defendants to sell
under that notice. An assign must take things
in the state in which he finds them, and cannot
claim to alter rights wliich have accrued before ho
has any authority to interfere ; (ii) that the notice
of sale of the 31st August 1891 had not been re-
scinded by the defendants, who were not bound to
j give a fresh notice before tlie sale advertised to be
I held on the 27th April 1893. The mere fact of a
I long delay taking place between the maturing of
I the notice of sale and the actual sale does not make
a fresh notice necessary ; (iii) that on the evidence
it did not appear that the plaintiffs were able
and willing to redeem the defendants' mortgage.
The plaintiffs admittedly had not the money in
hand, and the Court would not interfere with a
mortgafrce's right to sell on the mere chance of the
plaintiffs being able to make arrangements to pay
the amount due at some uncertain time. Where
a mortgage-deed which gave the mortgagee a pt^wer
of sale contained also a proviso that the remedies
of the mortgagors, their heirs, ndministratnrs,
and assigns in resjicct of any breach of tlie clauses
or provisions (relating to such sale) or of any im-
pro})riety or irregularity whatever in any such sale
should be in damages : — Held, on the authority of
Prichard v. Wilson, 10 Jur. N. S. 330, that " the
Court would not grant an injunction to restrain the
mortgagee from selling the mortgaged property.
MrxcuERJi FruDooNJi r. Noob MAnoMEDsnov
Jairajbuoy PiRBiiov . I. L. R. 17 Bom. 711

11. Mortgagee's right to sell

and recover money before the expiration

12 m

( S419 )

DIGEST OF CASESi

( 8420 )

MORTGAGE— fo«?f/.

4. PO^YEPv OF SALE— contd.

of the period fixed — Term of years fixed for
mortgage — Mortgagor mortgaging properti/ over a
'portion of icliich he has no right — Transfer of Property
Act {IV of 1SS2), ss. 67, 68. In 1889 the defend-
ant mortgaged ten fields to the plaintiff, to secure
a loan of R2,000. The deed provided that the
mortgage-debt was to become paj-able at the ex-
piration o' fifteen years, and that in the meantime
interest -was to be paid yearly at the rate of 6| per
cent, per ami ira. In 1896 the plaintiff discovered
that six of the mortgaged fields were not the pro -
perty of the defendant, who had therefore no light
to mortgage them, and he thereupon demanded
further security from the defendant, but was re-
fused. Only two years' interest on the mortgage-
debt had been paid bj^ the defendant. In 1898 the
plamtiS filed this suit, praying for the sale of the
four mortgaged fields which did belong to the
defendant, and for a personal decree against him.
Held, that, as the defendant (the mortgagor) had
failed to carry out the terms of the mortgage con-
tract, the plaint ff (the mortgagee) was entitled to
sell the mortgaged property although the mortgage
term had not expired. Vexkatarao Krishxappa
V. Mahableshwar (1901) I. L. R. 26 Bom. 241

12.

Mortgagee holding two

mortgages over same property— Tray^s/er of
Property Ad [IV of 1SS2), ss. So, 96, 97— Suit for
sale, based on earlier mortgage alons — Maintain-
ability. In 1880 B executed a simple mortgage
over certain lands in favour of A. In 1886, B
mortgaged the same lands to A with possession.
A now brought a suit on the earlier mortgage
for sale of the mortgaged property subject to the
later mortgage. Held, that the suit could not be
maintained. Sundar Singh v. Bholu, I. L. R. 20
All. 322, referred to. Dorasami v. Vexkatase-
shayyae (1901) . . I. L. R. 25 Mad. 108

13. Transfer of Pro-
perty Act [IV of 1882), ss. 67, 96, 97— Person hold-
ing two mortgages on the same property, the first
usufructuary and the second simple, can bring the
jiroperty to sale in suit on the second mortgage free
of the first mortgage. A person holding two mort-
gages on the same property, the first an usufructuary
and the second a simple mortgage, can sue under s.
67 of the Transfer of Property Act to recover the
money ^>n the simple mortgag.- by bringing t!ie pro-
perty to sale free of the usufructuarj^ mortgage.
The decree in such a case should direct the
property to be sold and the sale-proceeds to be
applied first in discharge of the usufructuary
mortgage, and the balance in discharging the
second mortgage. The fact that no suit for sale
could be brought on the usufructuary mortgage
will bfe no bar to such mortgage being paid
out of proceeds derived by the sale of the pro-
perty on another mortgage. Govinda Bhatta v.
xYaram Bhatta, I. L. R. 29 Mad. 42!, followed ia
principle. Bhagwan Doss v. Bhaivani, I. L. R. 26
All. 11, not followed. Ss. 96 and 97 of the Transfer
of Property Act do not in terms exclude usufructuary

MORTGAGE— con/i.

4. POWER OF SALE— c<?nW.

mortgages and their provisions may be applied .
such mortgages. Rexgasami Nadax v. Sr
baeoyaIyex (1907) . I. L. R. 30 Mad. 4i,

Appeal — Civil Procedure Cv.

14.

[Ad XIV of 18S2), ss. 3Hand335—Sde—Aucti<-
p'ocha^er — D:cree-hold':r — Puisn". mortgagee — 3Ic-
gage decree. On the 3rd December 1887 B obta
ed a mortgage of 5 annas odd gundas share of .
village L. On the 18th November 1890 R obtain,
a mortgage of a 4 annas out of the aforesaid sh;t
of the same village. On the 7th March 1894 (
obtained a decree for sale on his mortgage, \:
omitted to make R a party to this suit. On the I'l
December 1897 R instituted a suit on his m -
gage, making B a pirty to the suit. In the me •
tim" B caused the property to bv- sold and himif
purchas'xl it. and. the sale bcinsr confirm,
got delivery of possession on the 14th Xovemr
1898. R got a decree for sale on the 18th Dece-
ber 1898 and himself purchased the 4 annas of 3
property. Subsequently R was put in posses.= i
by ousting B, then B applied to the Court executg
the decree both under ss. 224 and 335 of the CI
Procedure Code to restore him to possession, <1
the Court passed an order m his favour, if appeal
to the District Judge, who having allowed Bo
withdri'W his appli ation so far as it nferredtoid
asked for interference of the Coiirt under s. 4
of the Code dismissed the appeal on the grovd
that no appeal lay. Held, that the case came unt
s. 244 of the Civil Procedure Code and an ap]J
lay to the Court below. In order to decide ur-r
which section of the Code the case came, the C<.'t
shoidd look into the true nature of the applican
with reference to the relief sought and the par.'S
before it. A party could not be permitted to ('*t
the jurisdiction of the Court by a mere statenit
that his case was under one section of the Codjf
Civil Procedure and not another and thereby deit
the just rights of the other party, when in factie
matter ought to be dealt with under the other p-
tion. Prosunno Kumar Sanyal v. Kali Das San%
I. L. R. 19 Calc. 6S3 : L. R. 19 I. A. 166, and .1 ■
husudan Das v. Gobinda Pria Chowdhurani, I. '
27 Calc. 34, referred to. Held, also, that, ina-
as B had no direct notice of the mortgage in 1
of R, the decree for sale obtained by the fornv
the proceedings based thereunder were vali^i.
ject to the rights of the latter as puisne mort.
who was not bound by the decree and the sale-
it, and had the right "to reopen the proceedui-,
redeem the first mortgage. Umesh Chandra >
X. Zahur Fatima, I. L. R. IS Calc. 164 : L.
I. A. 201, referred to. A first mortgagee r
session under a prior sale may alwaj's shield In
under his mortgage and his purchase, thougi-
right to possession may be defective. The y
mortiragee's right when he was not a party tc-U
first mortgagee' s suit, is limited to a right of red^l"^
tion or sale of the mortgage premises, subject t' ^
lien of the first mortgagee or auction-purcha;-:
a decree by the latter. He cannot compel tb'.

8421 )

DIGEST OF CASES.

( 8422 )

[ORTGAGE— fo«^7.

■i. POWER OF SALE— contd.

ortgagee to part with possession without redeem -
'ir the first mortgage. CJieit Narain Singh v.
""inga Pershad, Jo W. R. 216 ; Disai Lalluhhai v.
undas Kuberdas, I. L. R. 2) Bom. 390 ; Bunivari
a V. Ramjee Tliahur, 7 C. W. N. 11, followed.
bendra Narain Roij v. Ramsaran Bancrjee,
i>L. R. SO Cnlc. 599, referred to. Held, further,
at, inasmuch as the right to possession depends
on the purchase of the outstandmg equity of
iemption and is ordinarily determuied by-'^the
ority of the respective sales at the instance of the
ferent mortgagees, B, the purchaser at the prior
i'e, was entitled to retain possession as against
.1 the purchaser at the subsequent sale. Dirgo-
•'' LcH V. Bolakee, I. L. R. 5 Calc. ■169 ; Jugal Kis-
". Kartic Chunder Chattopadhi/a, I. L. R. 21
: 'U ; and Nanack Chand v. Teluckdye Koer,
:. 5 Calc. 265, referred to. Ram Narain
; 1)0 V. Baxdi Pershad (1904)
1 I. L. R. 31 Calc. 737

,.5.

Foi'ui of decree in use before

t|3 passing of the Transier of Property
jit — Suit for recovery of mortgage-debt — Attachment
c,um-niortgaged •property — Effect of such attachment.
I|a suit for recovery of a mortgage-debt a decree
■V)i passed, before the coming into force of the
i nsfer of Property Act, 1882, in favour of the
Pi ntiff, declaring the amount due to him and that
hiad a lien on the property of the mortgagee for
t. amount so found to be due. In execution of
i.u decree the judgment-creditor attached certain
p lorty of the judgment-debtor other than the
_ ' ^rd property. This property was in due
-old. and subsequently certain mortgagees,
ii'l taken a mortgage thereof, pendiiag the
d.chment, sued to have the sah- set aside. Held.
tl , owing to the form in which the original decree
wl passed, the judgment-creditor had full power
ttjittach and bring to sale in execution thereof
»>j property of his judgment-debtor. Luchmi
1)\ Koori V. Asman Singh, I. L. R. 2 Calc. 213,
folwed. Ram Baran Singh v. Gobixd Singh
(1|5) . . . I. L. R. 28 All. 295

j{. i Transfer of Pro-

jxi/ Act {IV of 1SS2), Ch. IV— Mortgage— Mortgage
■'i "Hgagee rights — Right of sub-mortgagee to bring
'he mortgagee rights of his mortgagor — " Pro-
Held by the Full Bench, Stanley,
I. id Knox, Banerji, Bcrkitt, Aikman,
I' hards, J J., that a sub-mortgagi e of
4'e rights in immoveable property is
to a decree for sale of the mortgagee
f his mortgagor. Per Stanley, C.J. —
lojxsrly constituted suit a puisne mort-
sub-raortgagee may have a sale of the
iiuit^aged to them respectively, subject in
h{ a puisne mortgage, to the rights of a
umbrancer, and subject, in the case of a
tgage, to the rights of redemption of the
mortgagor. Mata Din Kasodhan v.
'vy HH.<ain, I. L. R. 13 All. 432, considered
«»■ dissented from. Ganga Prasad v. Chunni

MORTGAGE— co;i<(/.

4. POWER OF SALE— concM.

Lai, I. L. R. IS All. 113, discussed and distin-
guished. Raghunath Prasad v. Juraioan Rai,
I. L. R. 8 All. 105: Sirbadh Rai v. Raghunath
Prasad, I. L. R. 7 All. 568, 571 ; Jones v. Skinner,
5 L. J. Ch. 90; Taylor v. R'Msell, [ls92] A. C.
255 ; In re Sargent, 17 Eq. 279 ; Rase v. Page, 2
Simons J71 ; 29 R. R. 112 ; Slade v. Rigg, 3 Hare
35 ; 61 R. R. 20 1- ; In re Hod-ion and Howe's Con-
tract, L. R. 35 Ch. D. 668 ; VencaUicheWi Kandian
V. Panjanadien, I. L. R. 4 iIa/1. 213 ; KaiUi Ram
V. Kut-ub-ud-din 2Iohome'l, I. L. R. 22 Calc. 33 ;
Beni Madhid) MaJiapatra v. Sourendra Mohan
Tagore, I. L. R. 23 Calc. 795 ; Debendra Narain Roy
V. Ramtaran Banerjee, I. L. R. 3 > Calc. 599 ; Jag-
gesivar Dutt v. Bhuban Moluin Mitra, I. L. R. 33
Calc. 125 ; MiUhic Vijia Raghunathu Raincliandra
Vacha Mahali Thurai v. Venkataclmllam ClteUi, I. L.
R. 20 Mad. 35 ; and Rai Cooimry Dassee v. Preo
Madhub Nundy, 1 C. W. N. (53, referred to. Ram
Shankab Lax. v. Ganesh Prasad (1007)

I. L. R. 29 All. 385

5. SALE OF MORTGAGED PROPERTY,
(a) Rights of Mortgagees.

Right of mortgagee — Remedy

on non-satisfaction of claim after sale. The
ri^ht accruing to a lender of money under a
m'ortgage-bond hypothecating land is to have his
mortgage-lien on the land declared and the property
sold in satisfaction ; and if after sale the debt is
not satisfied, to proceed against the debtor for the
balance. Webb v. Rinchiden . 14 W. R. 214
Lalla Mitterjeet Singh v. Scott

17 W. R. 62

2. Sale of whole property for

portion of deht— Sale of mortgaged property for
instalment of bond— Right to, or lien on, surp!u.i
proceeds. Where money is lent upon the security
of immoveable property of a nature incapable of
division, and the mortgagee, on one of the instal-
ments becoming due, has to sell the entire property,
he does not thereby lose all lien over the surplus
proceeds. It seems to make no difference that the
property is capable of division. Ram Kant

Phowdurv v. Brindabun Cucndek Doss
LHOWDURY ^g ^ j^ 246

3 Right to elect property to

be 'sold— Sale of portion of properly pledged.
Where a plaintiff's bond gives him a separate lien o:i
each and all of several mouzahs pledged as security,
he is free to elect for sale whichever of the mouzahs
he thinks most likely to satisfy his claim, \\hen
a portion of property pledged as security in a bond
is sold in satisfaction, there is nothing to prevent
the obligee from purchasing such portion. Hooi.as
^c.u^■PKVP r Scfeehun. Sufeeuun" r. MM...MEn

HUBEEBOOLLAH KH-VN • • 8W.K. d/O

4 Right to svirplus sale-pro-
ceeds—£:?£cno»i to proceed aga,nst mortgaged

12 m 2

( 8423 )

DIGEST OF CASES.

( 8424

MORTGAGE— confrZ.

5. SALE OF MORTGAGED PROPERTY— co«/J.

(a) Rights of Mortgagees — contd.
•property. Where a creditor sued upon a bond and
got a decree declaring his debt leviable from certain
landed property on which the bond gave him a
mortgage lien, as well as for any other property
found in possession of the debtor, but having elected
to satisfy his mortgage-lien and procured the sale
of the landed property subject to that lien : — Hdd,
that he was bound to recoup himself from the
mortgaged property, and that he could not get any
part of the surplus sale-proceeds, unless it were
shown that the mortgaged land had not produced
enough to satisfy his claim. Kalee Pas Ghose
V. Lal jMohttn Ghose . . 16 W. R. 306
See FcTEH Ali alias Nanna Meah v. Gregory
6 W. R. Mis. 13

5. Rights of successive mort-
gagees— Prior sale binder second moHgage — Bight
of purchaser. A property was mortgaged in suc-
cession to two different persons. Under the latter
of the two deeds, a money-decree was obtained and
the property sold. Subsequently the earlier
mortgagee obtained a money-decree, and caused
tlie mortgagor's rights and interests to be again
sold. Held, that the purchaser at the second sale
purchased, not the estate, but the mortgagor's
(extinct) right, title, and interest, and could not
sue for possession of the property itself. Durpo
Narain Mahatah v. Nuleeta Soosdtjeee Dossi
11 W. R. 332

6. Right of prior lien — Rale

of hypothecated property for money-decree — Lien
of subsequent mortgagee with order directing sale —
Bight of purchaser. Where property hypothecated
for a debt is sold in execution of a money-decree
passed under the bond hypothecating it, without
any additional order in the decree for enforcing
the lien on the property, and the holder of a subse-
quent similar bond, who has obtained an order
on his decree directing the sale of the property
seeks to enforce his lien upon the property so pur-
chased, the purchaser is entitled to go on the pre-
vious lien, as he not only stands in the shoes of the
debtor, but has purchased all rights in the property
hypothecated by the debtor when his hypothecation
was made, and has thus also acquired the rights of
the decree-holder to satisfy whose due the property
was sold Mhen this purchaser purchased. Sheo
PROsrx SiKGH V. Brojoo Sahoo . 7 W. R. 232

7. Bight of holder

of money-decree against subsequent mortgagee after
foreclosure. A executed in favour of J5 a simple
mortgage of certain property. He afterwards exe-
cuted in favour of C a mortgage by bi-bil-wafa, or
conditional sale, of the same property. C obtained
a decree for foreclosure, and got possession there-
under. B then obtained a money-decree against A
and in execution seized and sold and became the
purchaser of the said property and was put into
possession of it. On C suing B to recover posses-
sion, B claimed to be entitled to hold the property

MORTGAGE— coH^rf.

5. SALE OF MORTGAGED PROPERTY— conid.

(a) Rights of Mortgagees — contd.
by reason of the prior lien which he had under the-
simple mortgage. Held, that, as B had only got a
money-decree and no declaration of his rights as
mortgagee, he could not set up a prior lien against
C. Kasimannissa Bibi v. Huraxxissa Bibi

2 B. L. R. Ap. 6

Kusseemookissa Beebee v. Hurannissa Bibi
10 W. R. 468

8. Bight of holder

of money-decree against subsequent mortgagee after
foreclosure. A executed a bond in favour of B,
hypothecating certain immoveable property. B re-
covered a money-decree against A, and caused the-
mortgaged property to be sold. B became the pur-
chaser at the sale in execution, and was put in pos-
session. G, who held possession of the property
under a decree for foreclosure of a subsequent mort-
gage of the same property to him by A, brought a
suit against B for recovery of possession, and
obtained a decree. B then brought a suit against
C to enforce his lien under the mortgage-bond, but
it was Iteld that the suit was not maintainable.
Kasimannissa Bibi v. Hurankissa Bibi

7 B. L. R. Ap. 8

S. C. KUSEEMOONISSA BiBEE V. HuROOXNISSA

Bibee 15 W. R. 195

Suit

for money
made for

decree on mortgage. An application
leave to file a suit brought to recover the sum of
R2,300 on a Bengali deed of mortgage containing
a provision that, " if I should fail within the term oi
six months to pay off the whole of your money with
interest, in that case you will have recourse to law,
and by sale of the said huts recover with interest
the wliole of your money. Should the whole of your
money be not thereby realized, in that case you will
get it by sale of whatever ether property I may have
elsewhere. Should even then all the money be not
realized, I shall in that case be held responsible for
the remainder, that is to say, I sliall myself pay ;
if I should make any objection, it shall be false and
inadmissible." The plaint asked for a money
decree. Phear, J., refused to admit the plaint.
Umastjndari Dasi v. Umacharan Sadkhax

6 B. L. R. Ap. 117

10. . Attachment —

Notice — Fraxid. The plaintiffs advanced a sum of
money on the security of a simple mortgage of a
share in four talukhs, and obtained a simple money-
decree. They then caused the mortgaged premises
to be attached, but did not proceed to sale. After-
wards they negotiated a loan to the judgment-
debtors from a third party, the present appellant
upon a simple mortgage of one of the same talukhs,
concealing the existence of their prior lien, and ap-
propriated the money so obtained in discharge of
other debts due to themselves from their judgment-
debtors. The appellant obtained a simple money
decree, and caused the premises to be attached and

( 8425 )

DIGEST OF CASES.

( 8426 )

MORTGAGE— cott/cZ.

5. SALE OF MORTGAGED PROPERTY— con^d.

(«) Rights of Mortgagees — contd.
sold. Before the sale the plaintiffs gave notice of
their lien, and in conf-equence the appellant pur-
chased for a trifle. The plaintiffs brou»ht the pre-
sent suit for a declaration of their prior lien, and for
a re-sale of the premises in satisfaction of their
mortgage. The appellant contended in his defence
that, as fraud was perpetrated by the plaintiffs in
inducing him to make the loan without disclosing
their prior lien, his mortgage should have priority-
over theirs. Held, that the appellant must be
considered as having the first incumbrance ; that
the notice of the plaintiffs' mortgage given at the
execution sale could only affect the appellant's
title as purchaser. Priority as between the appel-
lant and the plaintiffs in respect of incumbrances
already existing could not be affected by such
notice. Bharat Lal Bhagat v. Gotal Saran Lal
Bhagat . 3 B. L. R. A. C. 1 : 11 W. R. 286

11. Partnership —

Attachment, right of proceeds of. A mortgage of
the revenues of a village was executed by a firm, and
the deed stipulated that the mortgagees should
station a mehta or clerk of their own in the village
to make the collections, who was to receive his
monthly salary and daily food from the mortgagors
whilst the property remained on mortgage. A
mehta was accordingly appointed, who received the
rents and profits of the village for a year or two, but
afterwards permitted the mortgagors to receive
them for four or five years. The respondent, who
was one of the partners, of the firm did not execute
the mortgage, but was cognizant afterwards of the
■execution of it, and he sued his co-partners, and ob-
tained a decree for his share of the assets of the firm.
In execution of his decree, an attachment issued
against the estate. In a suit by the mortgagee for
"the removal of the attachment : — Held, that the
mortgage was valid up to the time of the notice of
the respondent's claim {i.e., when he proceeded to
enforce that claim by attachment and when he
■became in the situation of a second incumbrancer) ;
and that, if after that tame he permitted the mort-
gagors to receive any portion of the produce of the
estate, he ought, with respect to the moneys so
received, to be postponed to the subsequent incum-
brancer. Jugjeewun Das Keeka Shah v. Ram
Das Brubookun Das

6 W. R. P. C. 10 : 2 Moo. I. A. 487

12.

Litn on propcr-

■ties pledged by mortgage-hond aiid transferred
■heirs for commutfd alloivance. \Miere a Maho-
medan widow, her two minor sons, and six relatives
■were entitled by inheritance to certain property ori-
ginally belonging to a paternal ancestor of his sons
and the six relatives received instead of their shares
a commuted allowance : — Hdd, that the holder of a
money-decree on a mortgage-bond in which the
"Widow and the six relatives had jointly pledged their
"interest in the property for the payment ot money
«oiild, as against the sons, sell the seven .shares in

MORTGAGE— con/fZ.

5. SALE OF MORTGAGED PROPERTY— con^ei.

(a) Rights of Mortgagees — contd.
execution of his decree ; it not appearing that the
agreement to accept the commuted allowance was
in'ev( cable, on that the agreement had iKjt been en-
tered into with the widow alone. Kally Prosad
Roy v. Saeferaz Alli . . 1 C. L. R. 399

13. Suit to enforce

mortgage -lien on property in the possession of a
third party — Properties situate in different dis-
tricts— Money-decree — Execution of decree — Code of
Ciiil Procedure {Act VIII of 1S59), s. 12. A, the
mortgagee, under a bond, of properties situated
in districts B and C, sued in the B Court on his
bond, and obtained a decree for the mortgage-money
and interest, with a declaration that the decree
should be satisfied by sale of all the mortgaged pro-
perty. A had not obtained the permission of the
High Court under s. 12, Act VIII of 1859, which
was necessary to enable him to proceed against the
property in the C district. Having attached and
sold all properties comprised in his decree situate
A\-ithin the jurisdiction of the B Court, A, under a
certificate issued by such Court, obtained an order
from the C Court attaching lands included in his
decree situate in that district. D intervened, on
the ground that he had purchased the same pro-
perty in execution of anotlaer decree of the C Court
against the same judgment-debtor, and the property
was released from attachment. A then sued D and
the mortgagor to enforce his mortgage-lien against
the property in the C district. Held, that the B
Court had jurisdiction to give A a decree for the
amount of the mortgage-money and interest,
though it had not power to enforce the decree
! against the property in the C district ; that the
only effect of the decree was to change the nature
of the original debt, which was a bond-debt, into a
judgment-debt for the mortgage-money and
interest ; and that, though A could not enforce
his lien against the property in the C district under
the decree of the B Court, yet as that property
had been sold to a third person, D, he was at liberty
to sue D to establish his lien for the mortgage-debt
and interest. Bolakee Lall v. Thakoor Peetam
Singh . I. L. R. 5 Calc. 928 : 6 C. L. R. 370

14.

Mortgaged 'pro-

perty, conveyance of, to mortgagee — Attachm'.nt
and sale of sami property under anothir decree —
Suit by mortgagee to recover money advanced on
mortgage-borul—Avoielance of conviyanc' — Lien. In
1874 the plaintiff" advanced money to F and Z
on the security of a mortgage of certain properties.
In 1875 the plaintiff took a conveyance of the pro-
perties mortgaged to him, setting off the money
due to him under the mortgage against the consider-
ation-money. At the time of this conveyance, the
same property was under attachment imder a decree
obtained by another person, and the property was in
execution of this decree, put up for .sale, and pur-
chased by one G. In a suit brought by the plaintiff
on the mortgage-bond {to recover the money lent,
and asking that the properties might be made liable

( 8427 )

DIGEST OF CASES.

( 8428 )

MORTGAGE— con/rf.

MORTGAGE— cow^rf.

5. SALE OF MORTGAGED PROPERTY— coni^?- : 5- SALE OF MORTGAGED PROPERTY— con <i.

(a) Rights of Mortgagees — contd.
to satisfy the debt) against F, Z, and G, it was held
that, the conveyance of 1875 being void against G,
the [)la lit ff was entitled to fall back upon the lien
created by the mortgage-bond. Bisscn Doss Singh
V. Shco Prasad Singh, 5 C. L. R. 29, followed.
GoPAL Sahoo v. Gunga Peeshad Sahoo

I. Ii. R. 8 Gale. 530

15. . Money-dicree

Sal" tinder

16.

chaser

Eight of

fur-
of mortgaged property — Mortgagee pur-
chasing right, tit'e, and interest of debtor. Plaint-
iff in 1802 purchased a house of first defendant,
which was already hypothecated to second defend-
ant. In 1863 second defendant sued first defend-
ant in the Small Cause Court for the debt on ac-
count of which the hypothecation had been made,
and got a judgment. He then had the house
attached and put up to auction, bought the right,
title, and interest of the judgment-debtor in the
premises, and entered and continued in possession.
Plaint if claimed in the present suit to recover pos-
session in right of his purchase in 1862. Held, that,
as first defendant had no interest whatsoever in the
property at the date of the plaintiff's purchase,
second defendant's purchase was not a purchase
from the debtor in part satisfaction of his debt.
Second defendant's claim still existed, and he could
pursue his remedy, either against the person or
the property ; and that, as he was in possession he
had a right to demand the liquidation of the debt
due to him before submitting to be turned out.
Held, also, that the obligation of the first defendant
gave the second defendant a two-fold remedy : one
against the person, and the other against the thing.
Muxi Reddi v. Vekkata Reddi . 3 Mad. 241

^'- First and second

mortgages— Sale of mortgaged property in execution
of money-decree obtained by first mortgagee— Effect
on second mortgagee's rights— Purchase by one

ortgagc-decree — Prior sale under
money-decree — Suit for possession. On the 21st of
April 1864 A mortgaged a certain talulda, and on the
13th of December 1865 the mortgagee obtained a
mortgage-decree on his mortgage. On the 5th of
April 1867 (in execution of a money-decree obtained
against ^ by a third party on the 20th of September
1864) the right, title, and interest of A in the
talukh was purchased by the defendant who entered
into possession. On the 1st of July 1868 the right,
title, and interest of A in the talukh was sold in
execution of the mortgage-decree and purchased by
the plaintiff. In these execution-proceedings the
defendant intervened, but his claim was disallowed.
On the 28th of June 1880 the plaintiff brought the
present suit for possession of the taluldi. Held,
that the plaintfff was not entitled to possession, but
should have brought his suit to enforce the mort-
gage-lien against the defendant. Bm Chtjnder
SIaisikya v. Mahomed Afsaroo

L L. R. 10 Caic. 299

1 (a) Rights of Mortgagees — contd.

! or several joint mortgagees of mortgaged property —

Extinguishment of mortgage-debt — Suit far sale

of mortgaged jyroperty. In January 1886 5 obtained'

I a simple money-decree only in a suit for enforce-

I ment of lien created by a bond executed by the-

wife of Z, and a.t a sale in execution of such decree-

a 10 biswas share hypothecated in the bond was

sold and purchased by Z, in November 1872.

On the 3rd May 1872 two bonds were executed in

[ favour of B and H jointly, the first by Z and I

j jointly, hypothecating 6 , out of the above mention-

j ecV 10 biswas, and the second by S, in which the

I obligor promised to pay the obligees the amount of

j the bond given by Z and / in the event of such

I amount not being paid by them, and mortgaged-

i certain property as security for such pa^-ment by

1 him. In December 1872 Z gave another bond to B

j hypothecating the same 10 biswas, and in execution

of a decree obtained by B upon this bond, the 10'

biswas were sold and purchased by B himself in

1877, and in 18S3 were sold by him to D. Subse-

quently, B and H brought a suit against Z and /,

the joint obligors, under the bond of the 3rd May

1872, the heirs of their surety *S', a purchaser from:

i those heirs of the property mortgaged in the.

I security-bond, and D, in which they claimed to-

j recover the money due on the bond by sale of the-

property mortgaged therein and also by the sale

! of the property mortgaged in S's security-bond.

I Held, that, inasmuch as iS'.s decree of January 1866

i was a simple money-decree only, Z's purchase

[ thereunder in November 1872 could not be regarded

I as operating in defeasance of the joint bond of the-

j 3rd May 1872, executed by Z and /, and that the

I sale of November 1872 therefore left the rights of

\ the parties wholly unaffected quoad that instrument.

I Held, also, that the effect of B' s purchase of the

10 biswas in 1877 upon the joint bond of the 3rd

May 1872 was as effectually to extinguish the joint

incumbrance thereon as if H had been associated

with him in buying it ; that consequently, when R

sold the 10 biswas to D in 1888, they were free of all

incumbrance under the joint bond, and that he

passed to her a clean title which she could assert as a

complete answer to the present suit in regard to the-

64 biswas. Bhup Sixgii v. Zainulabdin

I, L. R, 9 All. 205

18. Right of second

mo7igagce — Right of sale or redemption — Mortgage
suit — Parties. VJheve a mortgaged property is
sold in execution of a mortgage decree at the-
instance of the first mortgagee, and the second
mortgagee, who was no party to the previous suit,
brings a suit to enforce his mortgage making the
purchaser a party : — Held, that, the property having
being sold at the instance of the first mortgagee, the-
only right which the second mortgagee had was the-
right to redeem, and the plaintiff, without redeem-
ing the first mortgage, could not bring the property
to sale in satisfaction of hi subsequent charge
Dtjega Churn Mukhopadhya v. Chandra Nath
Gupta . . . . 4 C. W. N, 54L

( S429

DIGEST OF CASES.

( 3430 )

MORTGAGE— con/rf.

5. SALE OF MORTGAGED PROPERTY— confrf.

(a) Rights of Moktgagees — contd.

19. Payment hy

mortgagee hy conditional -lale of prior mortgage —
Decree obtained hy intermediate simple mortgagee
for sole — Mortgage hy cov-diiicnnl sale foreclosed
— Intermediate simple mortgagee not entitled to
sell vithont paying first mortgage. B made two
mortgages, dated, respectively, the 10th October
1S71 and 10th October 1872, of his zamindari pro-
perty in favour of P. On 27th January 1874 B
mortgaged 117 bighas 7 biswas and 10 dhurs of sir
and cviitivatory land belonging to his zamindari for
fi700 to the defendant. On 10th September 1877
B made a conditional sale of his zamindari property
to the plaintiff for R4,500 to pay off the two charges
created in favour of P. On the lOth August 1S78
B made another mortgage to the defendant for
E300 of the same 117 bighas 7 biswas and 10 dhurs.
On the 9th Kovember 1881 defendant obtained a
decree on his two bonds of the 27th January 1874
and 10th August 1878, and on his application for
execution of the decree the property mortgaged to
liim was advcitised for sale on the 20th November
1SS3. IMeanwhile the plaintiii had taken the neces-
sary proceedings to foreclose his conditional sale,
and upon the 29th IMarch 1883 the sale was fore-
closed. On the 19th November 1883 plaintiff insti-
tuted this suit with the object of having it declared
that defendant was not entitled to bring to sale the
property mortgaged to him. Held, that by the con-
ditional sale which became absolute upon the 19th
March 1883 the plaintiff acquired all the rights that
subsi ted under the two mortgages of the 10th
October 1871 and 10th October 1872, and was
entitled to press those securities in his aid as prior
incumbrances to that of the defendant, for the
purpose of stopping him from bringing the property
to sale in execution of his decree before first re-
couping the plaintiff the amount which the latter
found to satisfy and discharge those incumbrances.
Hdd, further, that the onlj- right which the defend-
ant had to bring the property to sale was upon the
strength of the decree obtained on the bond of 27th
January 1874, for he had no right under the instru-
ment in his favour of the 10th August 1878. The
defendant should therefore only be permitted to
bring the propert}' to sale under his decree in respect
of the mortgage of 27th January 1874, when he had
satisfied and discharged the two mortgage-bonds
held by the plamtiff of the 10th October 1871 and
10th October 1872. Z.-^lim Gm v. Ram Chaean
Singh . . . . I. L. R. 10 All. 629

20.

Suit for sale of

mortgaged property v:ithoitt redeeming prior mort-
gage— Form of decree — Transfer of Property Act
{IV of 1S82), s. 5S— General Clauses Consolidation
Act it of .IS6S), s. 2, cl. 5. In a suit on a mortgage
by a second mortgagee to which the prior mortgagee
was a party, and in which the plaintiff prayed that
the amount due to him might be realized by a sale
of the mortgaged property, the Courts below dis-
missed the suit, holding that the plaintiff was not

MORTGAGE— core/fi.

5. SALE OF MORTGAGED PROPERTY— con^rf.

(a) Rights of Mortgagees — contd.

entitled to fell the mortgage property without
redeeming the prior mortgage. Held, that this
decree was erroneous, and that the plaintiff was
entitled to an order for sale of the mortgaged pro-
perty subject to the lien of the j)rior incumbrancer.
The words " immoveable property " in s. 58 of the
Transfer of Property Act denote, having regard to
the definition of " immoveable property " in s. 2,
cl. 5 of the General Clauses Consolidation Act (I of
1868), not only the property itself as distinguished
from any equity of redemption which the mortgagor
•might possess in the property, but include the rights
of the mortgagor in the property mortgaged at the
time of the second mortgage, or in other words his
equity of redemjjtiou in such property. A second
mortgage therefore is, as well as a first mortgage, a
mortgage of " specific immoveable property "
under s. 58. The cases of V enxatachella Kandian
V. Pankina Dien, I. L. B. 4 Mad. 213 ; Khub
Chand v. Kalian Bass, I. L. B. 1 All. 240 ; Baghu-
naih Prasad v. Jurawan Bai, I. L. B. S All. 105 ;
Gangadhara v. Sivarama, I. L. R. S Mad. 246 ; and
Uines Chv.ndcr Sircar v. Zahir Fcdima, I. L. B.
18 Calc. 164 : L. B. 17 I. A. 20], referred to and
approved as to the right of a second mortgagee to a
sale subject to the hen of a jnior mortgagee. Ka>-ti
Ram v. Kutubuddin Mahomed

I. L. R. 22 Calc. 33

See Beni Madhub Mohapatra v. Sourexdra
Mohan Tagore . . I. L. R. 23 Gale. 795

21. . Civil Procedure

Code, 1SS2, ss. 354, 355, and 356— Insolvency— Be-

ceiver selling a ynortgaged property of insolvent — Pur-

chase at such sale. By an order, dated the 8th July

1879, A was declared an insolvent under s. 351 of

the Civil Procedure Code (XIV of 1SS2) and his

property vested in the Receiver, who was ordered

to convert it into money. Nine fields which were

part of A's property had been mortgaged to the

j plaintiff, who was duly cited to appear and prove

I his debt. The plaintiff, however, failed to apjjear,

and he was consequenth' omitted from the schedule

I of A's creditors. The Repeiver sold one of the

I fields, which was purchased In- A's undivided son

I G. At the sale the plaintiff gave notice of his

I claim as mortgagee. After paying off the debts

I of the scheduled creditors, the Receiver made

j over to A the residue of the purchase-money

! and the eight unsold fields. In 1881 the plaintiff

I sued .4 for possession of the mortgaged property

I and on appeal obtained a decree. While that

! suit was pending, G sold to the defendant the

I field which he had purchased. In execution of liis

i decree, the plaintiff recovered possession of the

i eight fields, but on attempting to get possession of

' the ninth field he was obstructed by the defendant,

! who was in possession, and he consequently brought

1 tliis suit to recover it. Held, that the plaintiff was

entitled to recover it from the defendant. The only

interest the insolvent had in the mortgaged premises

wa3 the equity of redemption, and this having

( 8431 )

DIGEST OF CASES.

8432 )

MORTGAGE-^oMfrf.

5. SALE OF MORTGAGED PROPERTY— co?i/(/.

(a) Rights of Moetgagees — coiitd.

vested in the Receiver under s. 361, he under s. 356
was directed to convert it into money. G therefore
at the sale only purchased the equity of redemption
in the one field ; and the defendant, who now
stood in G's shoes with notice of the plaintiff's
claim, although he might possibly be entitled to
redeem the whole nine fields comjjrised in the
mortgage, was bound to deliver possession to the
plaintili (the mortgagee) until that was done. The
mortgaged property could not be sold by the
Receiver without the consent of the plaintiff
(the mortgagee) or paying him off. S. 356 of the
Civil Procedure Code (Act XIV of 1882) no doubt
contemplates the payment of debts secured by mort-
gage out of the proceeds of the conversion of the
insolvent's property in priority to the general
creditors, but this must be taken in connection.with
s. 354, and must be understood as referring to those
cases in which the mortgaged premises have been
sold after coming to an understanding ^vith the
mortgagee. Shkidhar Narayan v. KpasHNAJi
ViTHOji . . . I. L. R. 12 Bom. 272

22. Right to sale of

portion of mortgaged property — Death of sole mort
gagee leaving several heirs — Sale of mortgagee's
right hy one of such heirs — Suit hy jnirchaser for sale
of mortgaged prop^.rty — Act IV of 1SS2, s. 67-
Upon the death of a sole mortgagee of zamindari
property, his estate was divided among his heirs, one
of whom, a son, was. entitled to fourteen out of
thirty-two shares. The son executed a sale-deed
whereby he conveyed the mortgagees' rights under
the mortgage to another person. In a suit for sale
brought against the mortgagor by the representa-
tive of the purchaser it was found that the plaintiff
acquired, under the deed of sale, only the rights in
the mortgage of the son of the mortgagee, though
the deed purported to be an assignment of the whole
mortgage. Held, by the Full Bench, that the
plaintiff was not entitled, in respect of his own share,
to maintain the suit for sale against the whole pro-
perty, the other parties interested not having been
joined : that, moreover, he was not entitled to
succeed, even in an amended action in claiming the
sale of a portion of the property in respe-t of his
own share, and that the suit was therefore not
maintainable. Biihnn Dial v. Manni Ram, I. L. R.
1 All. 297 ; Bhora Roy x. Alilack Roy, 10 W. R.
476 ; and Bedar Bahht Muhammad All v Khurr-am
Bukht Yahya AH Khan, 19 W. R. 315, referred to.
Paesotam Sakan v. Mtjix . I. L. R. 9 All. 68

23.

Redemption of

prior mortgage by puisne mortgagee— Sale, at his
stcit, of mortgaged property, on what terms, and
with payment of what incumbrances. Upon a claim
by a puisne mortgagee to redeem prior incum-
brances, and in the alternative, for a decree ordering
a sale of the property mortgaged, the sale was
decreed, with application of the purchase-money to
pay incumbrances in their due order; and with

MORTGAGE— cow?(^.

5. SALE OF MORTGAGED FRO^ERTY—contd.
(a) Rights of Mortgagees — contd.

redemption by the plaintiff of a prior mortgagee,
who was to have an option to redeem. Umes
Chxjnder Sircar v. Zahur Fatima

I. li. R. 18 Gale. 164
L. R. 17 I. A. 201

24. Mortgagee in

possession not paying assessment during famine —
Payment of arrears of assessment by person registered
as occupant ivho obtains conveyance from mortgagor
— Mortgagee lying by — Acquiescence — Estoppel —
Foreclosure, suit for. The plaintiffs, as mortgagees
under a mortgage-deed executed to them by the
father of the first defendant, had actual possession
of the land in question from 1872 to 1877, during
which time they cultivated it, and paid the assess-
ment upon it. In the years 1877 and 1878 they
ceased to cultivate it, and paid no assessment.
In 1879 the first defendant (his father the mortgagor
having died) sold the land to the second defendant,
who then paid the arrears of assessment upon it to
the Mamlatdar, and took possession. The plaintiffs
took no steps to prevent his taking possession,
or cultivating the land. In 1886 the plaintiffs
brought this suit for foreclosure. They alleged
that they had been dispossessed by the second "
defendant in 1879. and they claimed mesne profits
for the years 1883, 1884, and 1885. The Court of
first instance directed the defendant to redeem the
mortgage within six months, in default whereof it
granted foreclosure to the plaintiff-i. On appeal
the District Judge reversed that decree, holding
that the plaintiffs were estopped by their conduct
from recovering the land from the second defendant
who had purchased it in good faith and for value.
On appeal to the High Court -.—Held, restoring the
order of the Court of first instance, that the plaintiffs
were entitled to a decree. The second defendant
only acquired by his purchase the mortgagor's
interest in the land. Even if the mortgagor had
been in actual possession, the registration of the
mortgage would have been notice to the purchaser
of the mortgagee's title. As to the c^uestion of
estoppel, the mortgagees were under no obligation
to do anything, as it was not suggested that they
stood by while the second defendant was negotiat-
ing for his purchase, or had led him by so doing to
suppose that they were not interested in the land ;
they lived at a distance from the land, and it did
not appear that they ever knew of the sale. Nor
was there any obligation upon them to move in
the matter after the conveyance of the land to the
second defendant, provided they did not postpone
doing so beyond the period prescribed by the Act of
Limitation. Chixtaman Ramchandra v. Dareppa
I. Ii. R. 14 Bom. 506
25. • Second mort-
gage of the same property to the sayne person — Sale
in execution of decree on first mortgage — Purchase
by mortgagee decree-holder. A decree-holder holding
two decrees of different Courts on separate bonds
hypothecating the same property, in execution of

( 8433 )

DIGEST OF CASES.

( 8434 )

IIORT G AGE— cowfd

S. SALE OF MORTGAGED PROPERTY— com^cZ.

(a) Rights of Mortgagees — co7ifd.
the first decree purchased the property himself,
The surplus of the sale-proceeds was distributed by
the Court among other persons who held money-
decrees again<t the same judgment-debto.-. Held,
that the mortgagee decree-holder could not after-
wards execute the second decree against property
of the judgment-debtor not included in the hypo-
thecation bond. Ahriuid Wall v. Bakar Hussain,
All. WeeJcly Notes {1SS2) 61 ; Khwajah Bcikhsh v.
Imaman, All. Weekly Notes {18S5) 210, and Bahu
Ravji V. Bamji Svarupji, I. L. B. 11 Bom. 112,
referred to. Ballam Das v. Amar Raj

I. L. R. 12 All. 537

26.

Holder of two

mortgages on the same property suing separately
each. There is nothing in the Code of Civil Proce-
dure or in the Transfer of Property Act to prevent
the holder of two independent mortgages over the
same property, who is not restrained by any cov-
enant in either of them, from obtaining a decree
•for sale on each of them in a separate suit. Sundar
Singh v. Bholtt . . I. L. R. 20 All. 322

27. Effect of sale of

portion of mortgaged property under a decree not
■on the mortgage — Bight of mortgagee to have subse-
quent sale of mortgaged property taking into account
the full value of the property previously brought to sale.
When a mortgagee holding a mortgage over two
distinct properties brings one of them to sale in
•execution of a decree against the mortgagor, not
being a decree on his mortgage, and purchases
such property himself, the whole mortgage is not
necessarily thereby extinguished ; but, it' the mort-
gagee subsequently seeks to bring the mortgaged
property to sale in execution of a decree obtained on
his mortgage, he will have to bring into account the
iull value of the portion of the mortgaged pro-
perty purchased by him under his former decree.
■Sumera Kuer v. Bhagwant Singh, All. Weekly
Notes (1895) 1, followed. Ahmad Wali v. Bakar
Eusain, All. Weekly Notes {1SS3). 61 ; Ballam
Dass v. A)7utr Baj, I. L. R. 12 All. 537, referred to.
■Chtjnna Lal v. Anandi Lal

I. L. R. 19 All. 196

28. Mortgage by

joint owner — Mortgagee becoming purchaser of
part of mortgaged property — Bight of redemption
of part of mortgaged property — Apportionment of
mortgage-debt — Right of mortgagee to keep security
■ entire — Right of purchaser of mortgagee's interest
to sue for partition — Joint possession. When a
mortgagee acquires bj purchase the interest of some
of the mortgagors, he acquires only a right to sue for
partition after the redemption of the entire security
has been effected. He must first surrender or restore
the mortgage security and then urge what title
he may have acquired by the purchase. The
general rule is that a mortgagee has a right to insist
that his security shall not be split up, but in the
following cases there is no objection to do so and to

MORTGAGE— ro?;/fZ.

5. SALE OF MORTGAGED PROPERTY— cort<(?.

(a) Rights of Mortgagees — contd.
rateably distribute the mortgage-debt : — (a) When
the mortgagee dtjes not insist on keepirg the security
entire, (h) When the original contract itself recites
that the mortgagors join together in mortgaging
their separate shares, (c) When the mortgagee has
himself split up the security, e.g., when he buys a
portion of the mortgaged estate. In this case he is
estopped from seeking to throw the whole burden
on that part of the property still mortgaged with
him. In 1872 the plaintiff's father {K) and brother
{B) mortgaged seven lots of land Mith possession to
the father of defendants Nos. 1, 2, and 3. Four of
these 1 ts were subseque th- s Id to defendants
Nos. 4 to 8, with the consent of the mortgagees, who
continued in possession of the remaining three lots.
In 1878, in execution of a decree, 5's mterest in
these latter three lots was sold, and was purchased
by defendants Nos. 1, 2, and 3. In 1889 the defend
ants Nos. 1, 2, and 3 sold these three lots to defend-
ant No. 9. In 1881 the plaint ff.s (sons and
brothers of the original mortgagors) sued to redeem
all the lands comprised in the mortgage of 1872.
The first Court as to the first four lots held, that
defendants Nos. 4 to 8 had been in adverse pos-
session of the first four lots for more than twelve
years, and that as to them the suit was barred. As
to the remaining three lots, it passed a decree for
redemption of the plaintiiis' three-fourths share of
the lands, and dire te, 1 that on payment within six
months by them of K500 to defendant No. 9 (who
stood in the place of defendants Nos. 1, 2, and 3),
they should be put in possession of the lands jointly
with defendant No. 9. In appeal the decree was
confirmed as to the first four lots, but as to the
remaining three lots, the Judge found that the
mortgage -debt ihad been paid, and that a sum of
R 348-5-0 was due from the mortgagees in posses-
sion (defendants Nos. 1, 2, 3, and 9) to the plamtiff.
He therefore ordered payment of three-fourths of
this amount by defendant No. 9 to plaintiffs, and
directed that they should be put in possession of
their three-fourths share of the lands jointly with
defendant No. 9. On appeal to the High Court as
to the right to redeem the said three lots : — Held,
i that the plaintiffs were entitled to redeem the
' whole of the said three lots which had been admit-
tedly mortgaged in 1872 and not merely a three-
fourths share thereof, and were also entitled to the
whole ^of the surplus sum of K348 found due by the
mortgagees in possession. Held, also, that defendant
No. 9, who had acquired from the mortgagees (de-
I fendants Nos. 1, 2, and 3) the equity of redemption
! in part of the mortgaged property, was not entitled
i to possession of his share jointly with the plaintiffs.
The mortgaged property should first be restored to
the p;aintiff"'s and then defendant No. 9 might bring
a separate suit for partition. Narayax v. Ganpat.
Ganpat v. Narayan . I. L. R. 21 Bom. 619

29. Prior aiul subse-

quent mortgages — Price to be paid by a subsequent
mortgagee redeeming after the mortgaged property

( 843.5 )

DIGEST OF CASES.

( 8436 )

MORTGAGE-^ore^fZ.

5. SALE OF MORTGAGED FROFERTY—contd.

(a) Rights of Mortgagees — contd.
?>as been hroiight to sale and purchased hy the prior
mortgagee — Transfer of Property Act {IV of 18S2),
ss. 74, 75, and 85. A subsequent mortgagee is not
entitled to redeem the prior mortgage by simply
paying the price for which the prior mortgagee may
have purcliased the mortgaged property at an
auction-sale held in execution of a decree obtained
by him without joining the subsequent mortgagee
as a party ; but such subsequent mortgagee must,
if he wishes to redeem, pay to the prior mortgagee
the full amount due on his mortgage. Gimga
Pershad Sahu v. Land Mortgage Bank, I. L. i?. 21
Calc. 366, and Dadoha Arjunii v. Damodar Raghii-
nath, I. L. R. 16 Bom. 486, referred to. Baldeo
Bharthi Y. Hmhiar Singh, All. Weekly Notes {1895)
46, distinguished. Dip Nahayan Sinoh v Hira
SmcH . . . . I. L. R. 19 All. 527

30. Prior and subse-

qtient incumbrancers, rights of, inter se — Transfer
of Property Act {I V of 1882), s 85 — Sale in execution
of decree obtained hy first mortgagee in a suit to
which the second mortgagee was not a party — Rights
of auction- purchaser and mortgagor as regards the
second mortgagee. A prior mortgagee, K, obtained
a decree in a suit upon his mortgage, to which
suit a jjuisne mortgagee, G, was not made a party,
and subsequently one B attached the decree, and,
having put up the property for sale, purchased it
himself. G, the puisne mortgagee, having brought
a suit for redemption of K's mortgage and sale of
the property, K sold his rights to P, who was there-
upon added as a defendant. G obtained a decree
for redemption and sale. Held, per Banerji, ./.,
that P was entitled to the whole amount which G
had to pay for redemption of the prior mortgase,
with tlie exception of the amount of the purchase-
money paid by B at the auction-sale, which amount,
and which amount only, would be due to B or his
representatives. Dip Narain Singh v. Hira Singh,
I. L. R. 19 AIL 527, and Baldeo Bharthi v. Hiishiar
SirKjh, All. Weekly Notes [1895) 45, approved.
Held per Aikman, ./., that the auction-purchaser, B
(or his representatives), was entitled to the whole
amount to be paid by G for redemption of the first
mortgage. I'Hp Narain Singh v. Hira Singh,
I. L. R. 19 All. 527, differed from, and Baldeo
Bharthi v. Hushiar Singh, All. Weekly Notes (1895)
45, dis^-.ingiiished. Wahid-ux-nissa v. Gobar-
DHAN Das . . . I. L. R. 22 All. 453

31. — — _ Renewal of mort-
gage— Priority over subsequent-incumbrance — Trans-
fer of Property Act {IV of 1882), s. 10. UTiere
a mortgagee, subsequently to the execution of
the mortgage-deed, takes another mortgage in
renewal of the former deed, he has priority over
incurabran es subsequent to tlie first deed. Alan-

GARAN ChETTI v. LaKSHMAXAN ChETTI

I. L. R. 20 Mad. 274
32. — Sale by mort-
gagor of part of the mortgaged, property— Effect of

MORTG A G^— contd.

0. SALE OF MORTGAGED PROPERTY— cori^i.

(a) Rights op Mortgagees — contd.
such sale on rights of the mortgagee. The right of a
mortgagee to bring any portion of the mortgaged
property to sale is not curtailed by the mortgagor
subsequently to the mortgage seilinii a portion of the
mortgaged property to a third person. Lala
Dilawar Sahai v. Dewan Bolakiram, I. L.R. 11 Calc.
25S ; Rama Raiu v. Yerramilli Subharayudu^

1. L. R. 5 Mad. 387 : and Panwari Das v. Muham-
mad 3Ia^kiat, I. L. R. 9 Ah. 690, referred to. Bm-
KARi Das V- Dalip Singh . I. L. R. 17 All. 434

33.

Transfer of Pro-

perty Act (IV of 1882), s. 88—Sitit for sah on
a mortgage — Purchase at auction-sale by decree-
holder — Further execution sought against other
property comprised in the mortgage — Amount for
which decree-holder must give credit to mortgagor.
A mortgagee decree-holder, in a suit for sale under
s. 88 of the Transfer of Property Act, 1882, brought
part of the mortgaged property to sale, and with the
leave of the Court, purchased it himself. The
amount realized by the sale being iusufificient to
satisfy the mortgage-debt, the decree-h<jlder applied
for execution against the remainder of the property
comprised in the mortgage. Held, that the decree-
holder was not bound to give credit to the mortgagor
to the amount of the market value of the mortgaged
property purchased by him, but only to the amount
of the actual purchase-money. Mahabir Parshad
Singh v. Macnaghten, I. L. R. 16 Calc. 682 ; Sheo-
nath Doss v. Janki Prosad Singh, I. L. R. 16 Calc.
132 ; and Ounga Pershad v. Jawahir Singh, 1. L. R.
19 Calc. 4, referred to. Mtthammad Husex Ali
Khan r. Thakur Dharam Singh

I. L. R. 18 All. 31

34.

Rights of prior

and subsequent incumbrancers inter se — Rights of
mortgagee purchasing eqy.ity of redemption — Right
of sale of mortgaged property. A and B jointly
mortgaged certain immoveable property to X hy
a simple mortgage-deed on the 10th September
1882. They again mortgaged the same property to-
Z on the 23rd February" 1881. On the 6th August
1885 A mmtgaged a portion • f the said prope:ty to-
7. On the 12th August 1885 B mortgaged a por-
tion of the same property to X. On the 21st August
1885 A mortgaged a portion of the same property
to Z. On the 20th September 1886 A and B sold
to X the property mortgaged to him, and with
the proceeds of that sale X's three mortgages
were paid off. On the 8th January 1887 Y sued
A, B, and X for cancelment of the deed of sale
of the 20th September 1886, and for sale of the-
property mortgaged to him under his deed of the'
0th August 1885. Y did not make Z a party to-
this suit. He did not ask for redemption of X's
mortgages nor for foreclosure of Z's mortgage.
Upon these facts it was held by Edge, C.J.,
Straight, Tyrrhlt. and Knox, JJ. (Mahmood, J.,
dissentienfe), { ) That X, not having exhibited any
intention of foregoing altogether his rights in respect-

( 8437 )

DIGEST OF CASES.

{ 843S )

MORTGAGE— ''on<</.

5. SALE OF MORTGAGED PROPERTY— con^d.

(a) Rights of Mortgagees— conf/.
of the mortga<Tes of the 10th September 1882 and
the 23rd Februarv 1884, was entitled to keep those
securities alive and to use them as a shield against
the claim of Y, the subsequent mortgagee, to the
extent of the amount which was due under them
on the 20th September 1886. Gokaldas Goroldas
V. Bambal:i,h Sheochand, I. L. B. 10 Cnlc. 1035 :
L R. 11 I. A. 126 ; Gaya Prasad v. Salif: Prasad,
I. L. R. 3 All. 6S2 ; J\hd Chnnd Kitber v. Lallu
Triham, I. L. R. 6 Bom. 404 ; Shnntapa v. Bnlapa,
I L. R. 6 Bom. 561 : Ramu Naikan v. Suhbaraya
Mudali, 7 Mad. 229 ; Sirbadh Rai v. Raghunath
Prasad, I. L. R. 7 All. 56S ; Janki ^Prasad^v.
Sri Matra Mautangvi Debia, I. L. R. 7 All. 577,
and Gangadhara v. Sivarnma, I. L. R. S 3Iad. 246,
referred to. (ii) That Y as subsequent mortgagee
could not bring to sale under his mortgage-deed the
property mortgaged to him without first redeeming
X's two prior mortgages. Wajed Hossdn v. Ha^ez
Ahmed Rezah, 17 "W. R. 480 ; Khvb Cfiand v.
Kalian Das. I. L. R. 1 All. 240, Ka<um-vn-nl-sa
Bibi v. Nilralna Rose, J. L. R. S Cole. 79 ; Har
Prasad v. Bhagiran Das, I. L. R. 4 All. 196 ; Mu-
hammad Ibrahim v. Tek Ckand, All. ]\eekhj
Notes (1SS2) 59 ; All Hasan v. Dliirja, I. L. R. 4
All. 51 S ; Zalim Gir v. Rum Charan Singh, I. L. R.
10 All. 629 ; and Ume-sh Chunder Sircar v. ZaMir
Fatima, I. L. R. 18 Calc. 164 : L. R. 17 I. A.
201, referred to, in addition to the cases cited above.
Raghvnaih Prasad v. Jurawan Rai, I. L. R. 8
All 105, distinguished. Vencata Chella Kandian
V. Panianadien, I. L. R. 4 Mad. 213 : Ganga-
dhara V. Sivarama, I. L. R. 8 Mad. 246 : and the
judgments of Mammood, J., in Sirbadh Rai v.
Ragimath Prasad, I L. R. 7 All. 568, and in Jankt
Prasad v. Sri Matra Mauiangui Debia, I. L. R.
7 All. 577, dissented from. Mahmood, J. (contra).
Inasmuch as a mortgagee cannot bring the mort-
gaged property to sale without the intervention
of a Court, a Vi"^''^te purchase by the mortgagee
of the rights remaining to the mortgagor in such
property, though it may be valid as against the
mortgagor, canhave no effect in defeating the rights
of puisne and mesne incumbrancers. Moreover,
where a second mortgage to a third party intervenes
between the mortga'ge'to and the purchase by the
prior mortgagee of the rights of the mortgagor,
such intermediate mortgage prevents the merger
of the rights of the prior mortgagee as such with
those which he might acquire by his purchase.
. The right of sale is an essential incident of a simple
mortgage, and inheres as well in puisne and mesne
as inprior mortgaaees, subject to the rights of the
prior mortgagees. ^The puisne or mesne mortgagee
is not bouridl>y the terms of the prior mortgage, or
mortgages, but is entitled to bring the property
mortgaged to sale, subject to such prior mortgage
or mortgages. M.VTk Dix Kasodhan v. K.\7IM
HusAiN .' . . . I. K R. 13 All. 432

35 Prior and sub-

.sequent mortgagees— Rights of subsequent mort-

MOB.TGAG'E—rontd.

5. SALE OF MORTGAGED PROPERTY— confc?

• (a) Rights of Mortgagees — contd.
gagees vhere prior mortgage is usufructuary, and
time has not arrived for redemption — Form of de-
cree. Held, that, where there exists a prior usufruc-
tuary mortgage, a subsequent mortgagee of the
same property cannot bring the mortgaged property
to sale in \artue of his incumbrance until such
time as the usufructuary mortgage becomes capable
of redemption. Mata Din Kasodhan v. Kazim
Husain, I. L. R. 13 All. 432, explained and followed.
Akkra Ranch aiti v. Sub a Lal

I. L. R. 18 AIL 83

36.

Transfe

Property Act {IV of 1882), s. 101— Extinguish-
ment of mortgage — Merger — Third mortgagee pay-
ing off first mortgage— Priority of charges. Certain
laiid was mortgaged in 187G to .4, and on the 10th
February 1877 to B, and two days afterwards to C,
the last-mentioned mortgage was effected to
satisfy a decree obtained by A on his mortgage.
In February 1882 C obtained a decree on his mort-
gage : this decree was discharged by the sale of the
land to D, who borrowed part of the purchase-
money from the plaintiff, to whom he mortgaged
it on the day of the sale. B subsequently obtained
against D and the mortgagor's representative a
decree on his mortgage, which comprised a declara-
tion that the sale of 1882 was subject to his lien and
brought the propertv to sale and became the pur-
chaser in execution. ' The plaintiff now sued B and
D on his mortgage. Held, that the plaintiff's
mortgage was entitfed to priority over the mortgage
of idth February 1877 to the extent to which the
loan secured thereby had gone to discharge the
mortgage of 1870. Seetharama v. Vexkata-
krishnIka . . . I. L. R. 16 Mad. 94

37^ Covenant that

mortgagee be entitled to enter — Eviry, right of-
Morlgage-deed in English form. B executed a
mortgage-deed in the English form in favour of the
L Bank, containing amongst.fother covenants one
providing that, upon default,'^the mortgagee would
be entitled to enter into possession of the mortgaged
properties. B died leaving>a widow, a daughter and
a sister S. his heirs. According to Mahomedan law.
S was entitled to a six-annas share of the mortgaged
properties. On the 9th of Jlay 1872, after the
morttrage-money became due, the L Bank brought
a suit, "and. on the 13th of July 1872, obtained a
decree by consent. The existence of right of S to a
share in "the properties was not known to the Bank,
and she was not made a party to that suit. The
Bank, in execution of their decree, caused the mort-
gaged properties to be sold, and themselves purchas-
edliome of them. The sale-proceeds did not satisfy
the entire claim. On the 1st of December 1875 S
sold her share of six annas in the properties to R.
In a suit by R against the purchaser of two of the
mortgaged" properties at the aforesaid sale it was
held that the share of S in the estate of B did not
' pass to the purchasers, though the Bank purported

( S439 )

DIGEST OF CASES.

8440 )

MORTGAGE— coH/(^.

5. feALE OF MORTGAGED PPvOPERTY— co«/fZ.

(«) Rights of Mortgagees — contd.
to have brought the whole sixteen annas in the
properties to sale. R then brought this suit for the
recoveiy of possession of the six-annas share of the
properties, piirchased at the sale by the Bank
themselves, and which was now in their possession.
Held, that under the covenant in the mortgage-
deed above referred to, the Bank were entitled to
ieu:ain in possesfc^ion as mortgagees until the pro-
portion of the debt which might legitimately be
imposed upon the six-annas share of the properties
in their hands was paid. Lutchmiput Singh
Bahadur v. Land Mortgage Bank of India

I. L. B. 14 Gale. 464

38. • Purchase of

mortgaged property by mortgagee at judicial sale
on leave obtained to bid. Where mortgagees exe-
cuted the.r decree on the mortgage, and having
obtained leave to bid at the judicial sale purchased
the property : — Held, that they could not be held to
have purchased as trustees for the mortgagors, the
leave granted to bid having put an end to the
disability of the mortgagees to purchase for them-
selves, putting them in the same position as any
independent yjurchasers. Mahabir Pershad Singh
V. Macnaghten . . I. L. R. 16 Calc. 682

L. R. 16 I. A. 107

Dakshina Mohan Roy v. Bastjmati Deei

4 C. W. ]Sr. 474

39. Civil Proce-
dure Code, 1SS2, s. 294 — Decree-holder, purchase by
— Satisfaction pro taydo — Mortgagee not trustee
for mortgagor in sale-proceeds — Leave to bid at
sale in execution when granted — Permission of
the Court to decree-holder to buy — Practice. A
mortgagee who has obtained a mortgage-decree,
and after obtaining permission to bid at the sale held
in execution of such decree has become the pur-
chaser, does not stand in a fiduciary position
towards his mortgagor. Hart v. Tara Prasanna
JIukerji, I. L. R. 11 Calc. 718, distinguished.
A mortgagee in such a position therefore is at
liberty to take out further execution for any
balance of the amount decreed that may be left after
deducting the price for which the mortgaged pro-
perty was sold, and is not bound to credit the
judgment-debtor Avith the real value of the property
to be ascertained by the Court. The permission
to a mortgagee to bid should be very cautiously
granted, and only when it is found after proceeding
with a sale that no purchaser at an adequate
price can be found, and even then only after
some enquiry as to whether the sale proclamation
has been duly published. Sheonath Doss v. Janki
Peosad Singh . . I. L. R. 16 Calc. 132

40.

Position of

mortgagee uho has purchased the mortgaged pro-
perty after obtaining leave to bid. A decree-holder
(a mortgagee) who has, after obtaining leave to
bid at a sale, purchased the mortgaged premises

MORTGAGE— <^on;rf.

o. SALE OF MORTGAGED PROPERTY— co«?(Z.

(a) Rights of Mortgagee s — contd.
is in the same position as an independent purchaser
and is only bound to give credit to the mortgagor for
the actual amount of his bid. Mahabir Pershad
Singh v. Macnaghten, I. L. R. 16 Calc. 682, followed.
GuNGA Pershad v. Jawahir Singh

I. L. R. 19 Calc. 4

41, Accession to mortgaged

property— rraw.,s/er of Property Act {IV of
1882), ss. 70, 82 — Priorities — Contribution — Dis-
tribution of sale-proceeds. Where, after the execu-
tion of two simultaneous mortgages in respect of a
house and certain lands appurtenant thereto, the
mortgagor erected two other houses on the lands
and subsequently executed various mortgages in
respect of the several houses, and the decree in the
suit by the fourth mortgagee directed that the whole
of the property should be sold free of incumbrances,
in separate lots, and the sale-proceeds to be dis-
tributed among the various mortgagees in accord-
ance with their priorities and the property more or
less pledged by each mortgage, and the sale-proceeds
were insufficient to pay off the mortgagees. Held,
that, for the purposes of the security of the two prior
mortgagees, the two new houses were accessions
to the mortgaged property and became incorporated
with the original subject of the security, as though
they had been in existence at the time when the
original security was given. Held, also, that, the
sale-proceeds being insufficient to pay off the several
mortgagees, they were respectively entitled to only
such surpluses, after payment of the two prior
mortgagees, as might be attributable to the pro-
perty subject to the respective mortgages. Krishna
GoPAL Sadhani v. Miller (1902)

I. L. R. 29 Calc. 803

42. Contribution — Mortgage of

two properties of different value — Subsequent sale by
mortgagee, in execution of a money-decree to different
purchasers subject to mortgage, one purchaser being
mortgagee himself — Effect of such purchase by
mortgagee, where property purchased exceeds debt
due on mortgage — Subsequent suit by mortgagee to
enforce liability of the other property to share of
mortgage-debt — Liability of such property in the
hands of the purchaser — Property still liable to
mortgage-debt, although sold at instance of mortgagee
—Transfer of Property Act (I V of 1882), ss. 99 and,
101 — Merger — A pportionment — Contrib ution. Cer-
tain fields and a house, being subject to a mortgage,
were brought to sale in execution of a money-
decree obtained by the mortgagee against the
mortgagor, and were sold subject to the mortgage.
At the date of the sale the mortgage-debt was
R3,100. The mortgagee, having obtained leave
to bid at the sale, purchased the fields for R340
and the first defendant purchased the house for
R300. At the date of the above transaction the
Transfer of Property Act (IV of 1882) was not
in force in Bombay. Subsequently the mortgagee
filed this suit to enforce his rights under the mort-
gage against the house, which he sought to make

( S441 )

DIGEST OF CASES.

( 8442 )

MORTGAGE— cowfi.

5. SALE OF MORTGAGED PROPERTY— cow^rf.

(n) Eights of Mortgagees — contd.
liable for its proportionate share of the mortgage-
debt. At the date of suit the mortgage-debt had
increased to R4,000, and he cla n:ed t > recover
R800 from the house. The purchaser of the house
(defendant 1) pleaded that at the time of the sale
the value of the fields purchased by the mortgagee
was more than sufficient to satisfj^ the mortgage-
debt, which was therefore wholly extinguished, and
that the house was no longer liable. Held (Fultox,
J., dissenting), that the house was liable in the
hands of the first defendant to a proportionate share
of the mortgage-debt, he ha\'ing purchased it,
subject thereto, and that the plaintiff (the mort-
gagee) was entitled to recover such share from him.
Bcld, by FtTLTOK J., that where a mortgagee,
instead "of enforcing his mortgage and bringing
the property to sale free of incumbrances (where
such course is open, as it was in the present case),
brings to sale the equity of redemption in part of
the mortgaged property, and buys it himself, an
equity arises which entitles the mortgagor to re-
quire'satisfaction first out of the property brought
by the mortgagee. Otlierwise the action of the
mortgagee in causingt he sale subject to the mort-
gage might almost necessarily secure to him an
undue profit at the expense of the mortgagor.
Fakieaya t'. Gadigaya (1901)

I. li. R. 26 Bom. 88

MORTGAGE-

,td.

43.

Keeping mortgage alive

—Ciiil Procedure Code (Act XIV of 1SS2), s. 276-
Mortrjage, fresh, after attachment — Priority. When
the owner of an estate pays charges on the estate
which he is not personally liable to yy&y, the question
whether those charges are to be considered as ex-
tinguished or as kept alive for his benefit is simply a
question of intention. The intention may be found
in the circumstances attending the transaction, or
may be presumed from a consideration of the fact
whether it is or is not for his benefit that the charge
should be kept on foot. Mohesli Led v. Mohunt
Bau-an Das, L. B. 10 I. A. 62, and Gokid Doss
Gopal Doss V. Batn Bux Seocliand, L. R. 11 I. A.
126, followed. So, where a mortgagor in order to
pay off a previous mortgage decree, executes a
mortgage free from encumbrances in favour of a
third party, and, after paying off the mortgage
decree with the fresh loan, makes over the old
mortgage-deed to tlie new mortgagee, the old
mortgage is kept alive for the benefit of the new
mortgagee, and an attachment of the proi^rties,
though prior to the new mortgage, does not aii'ect
the interest of the new mortgagee. S. 27G, Civil
Procedure Code, does not make the fresh mortgage
void as against the attaching creditor. Dinobun-
DHTj Shaw Chowdeey v. Jogmaya Dasi (1901)

I. L. R. 29 Calc. 154

S.C. 6 C. W. N. 209

L. R. 29 I. A. 9

44. Priority — Transfer of Pro-

perty Act {IV of 1SS2), s. 7d — Eights of prior and
fuisne mcumhrancers inter se. The puisne mort-

5. SALE OF MORTGAGED PROPERTY— ro/i^Z.

(a) Rights of Mortgagees — contd.
gagees instituted a suit on their mortgage without
making the prior mortgagees parties thereto, and
got a decree for sale on the 6th April, 1895,
and purchased, at the sale held on execution
of that decree, the property mortgaged to them on
the 21st September, 1896. The prior mortgagees
instituted a suit on their mortgage without making
the puisne mortgagees parties thereto, and got a
decree for sale on the 11th December, 1894, and
purchased, at the sale held in execution of that
I decree, the property mortgaged tathem on the 21st
November, 1896, and obtained possession thereof
on the 21st January, 1897. Tlie puisne mortgagees
then sued the prior mortgagees, claiming possession
of the property purchased by the latter on payment
of the actual purchase-money, or of the sum which
was due upon their mortgage at the date of the
institution of their suit. Held, (i) that the puisne
mortgagees were entitled to be put into possession
on payment to the prior mortgagees of the sum
which was actually clue upon the prior mortgage
at the date upon which the prior mortgagees
purchased, and (i ) that such possession was, as to
the property included in their own mortgage, pro.
prietary ; but, as to the property not so included,
possession as mortgagees onlj- : they were not
entitled to the rights of the prior mortgagees as
purchasers of the equity of redemption. Delhi
and Loxdox Ba>-e v. Bhikaei Das (1901)

I. L. R. 24 All. 185

45. Priority accord-
ing to date of possession by two jyurchascrs of the
mortgaged property. On the 7th October, 1890, the
proprietor of certam land mortgaged it to plaintiff ;
and on 30th October, 1893, he also mortgaged it to
first defendant. In 1895, first defendant sued on
his mortgage, obtained a decree, got the property
sold, and purchased it himself, obtaining possession
in Juh', 1897. Plaintiff' also sued, in 1897, on his
mortgage and also obtained a decree and purchased
the property at public auction, and obtauaed i^wsses-
siou in November, 1898. On the present suit being
brought h\ plaintiff to recover ^wssession : Held,
that, as between the two purchasers, the question
of priority must be determined, not by reference to
the date of the mortgage documents, but according
to the dates of the sales and recoverj' of possession
under them; and that, in consequence, plaintiff's
suit, which was one to oust the second defendant
from possession, must be dismissed. Any rights
which plaintiff" might have on the strength of his
mortgage must be enforced in another suit. Akatti
Moidix KrTTY V. Chirayil Ambu (1902)

I. L. R. 26. Mad. 48

46. Right of sale by puisne

raortgagee — Suit by puisne mortgagee — Bight
of sale by puisne mortgage: — Decree on first mortgage
to which puisne mortgagee icas tMt a party — Transfer
of Property Act {IV of 1SS2), s. So— Civil Procedure
Code (Act XIV of ISS-J), s. 2S7 — Indian Registra-
tion Act (III of 1S77), s. 17. A puisne mortgagee

( 8443 )

DIGEST OF CASES.

( 8444 )

MORTGAGE— cow/rf.

5. SALE OF MORTGAGED PROPERTY— co^^^i.

(a) Rights of Mortgagees — contd.
is entitled to a sale of the property secured by bis
mort^ace, subject to the rights of the fii-st mortgagee
even 'after the property has been sold in execution of
a decree obtained by the first mortgagee in a suit to
which the puisne mortgagee was not a party. Durga
Churn Muhhopadhya v. Chandra 2sath Gupta
Choivdhry, -! C. W. N. 541, overruled. Debendra
Nabaix Roy v. Ramtaran Banerjee (1903)
^ I. L. B. 30 Caic. 599

s.c. 7 C. W. N". 766

47, Surpivis sale -proceeds —

Transfer of Property Act (IV of 1SS2), ss. 96, 9} —
Civil Procedure Code (Act XIV of 18S2), s. 295,
prov. (c)— Prior mortgage— Contract Act {IX of 1872),
,j. 44^— Contribution as letween co-mortgagors — In
terest to date of realisation, rate of. If a mortgagee
receives any money out of the surplus sale-proceeds
of a share in the property mortgaged to him, sold in
execution of a decree on a prior mortgage from some
of the mortgagors to whom the share belonged and
against whom the decree was obtained, he is bound
to apply the money to the satisfaction of his mort-
gage-debt only in case lie receives it by virtue of his
security, and not otherwise, although the payment
might be made to him by the said mortgagors in
satisfaction of other debts due to hun from them.
Johnson v. Bourne, 2 Y. cL- C. Ch. 26S. followed.
The Court is quite competent to allow in a mort-
gage decree interest at the stipulated rate up to
the actual date of realisation. 'Bamesivar Koer v.
Mahomed Jlehdi Hossein Khan, I. L. R. 26 Calc.
39, and Maharaja of Bhartpur v. Bani Kanno
Dei, I. L. R. 23 All. 181, followed. Gaxga
Ra3i Marwari v. Jaiballav Naraix Singh (1903)
I. L. R. 30 Calc. 953

'4,3. ■ Sale of mort-

MORTGAGE— coji^d.

I 5. SALE OF MORTGAGED PROPERTY— co/i«ii.

gaged p-operly under a decree for rent — Mortgagee's
charge on surplus sale- proceeds — Transfer of Pro-
perty Act {IV of 1SS2), s. :3 — Bengal Tenancy Art
(Vlllof lSSo),ss. 159, 161, to 16i- \Then mort-
gaged property is sold under a decree in a rent
suit, the mortgagee would have, under the pro-
visions of s. 73 of the Transfer of Property Act, a
charge on the surplus sale-proceeds whether under
the decree in the rent suit the property was put
up for sale with power to the purchaser to avoid
encumbrances or not. Ss. 159 and 161 to 167
of the Bengal Tenancy Act cannot prejudice the
right of a mortgagee in that respect. Gobixda
Sahai v. Sibbutram (1906) I. L. R. 33 Cae. 878

49. Limitation — Moiigage, suit on

— Acknowledgtnent — Limitation Act {XV of 1S77),
es. 19, 22 — Adding assignee of equity of redemption
after time — Release of a portion of mortgaged pro-
perty from debt — Validity — Release in writing —
Registration — Registration Act {III of 1S77), s. 17
— Attestation, if evidence of assent — For^n of relief.
In a conveyance executed by a mortgagor in
respect of a portion of the mortgaged properties in
favour of a stranger there was a recital admitting

I (a) Rights of Mortgagees — contd.

the mortgagor's liability on account of the mort-
I gage debt : Held, that not being addressed to
I any person and not having been communicated
j to the creditors or any person on their behalf, it was
I not an acknowledgment within the meaning of
j s. 19 of the Limitation Act. What is a sufficient
i acknowledgment within the meaning of that
i section considered. Mylapore v. Yeo Kay, L. R.
\ 1^ I. A. 16S : s.c. I. L. R. 14 Calc. 801, followed
I Shuka Moni v. Ishan Chandra, L. R. 25 I. A. 95 :
j s.c. I. L. R. 25 Calc. Si^, Madhusudan v. Brojo
'. Nath, 6 B. L. R. 299, referred to. After commenc-
: ing a suit on his mortgage, the mortgagee applied
for adding as defendant an assignee of a portion of
the mortgaged properties and the latter was
ordered by" the Court to be so added on a date when
the period of limitation for bringing the suit had
expired : Held, that the suit so far as this defendant
was concerned was barred, but the plaintiff was
entitled to succeed in respect of a proportionate
part of his claim as against the remaining o-\vners
of the equity of redemption, who had been made
parties within time. Girish Chunder v. Dwarka
Nath, I. L. R. 24 Calc. 640, and Fakira Pashan v.
Bibee Azimunnessa, I. L. R. 27 Calc. 540, distin-.
guished and doubted. Oriental Bank v. Charriol,
I. L. R. 12 Calc. 612, referred to. Guruvayya v.
Dattatraya, I. L. R. 28 Bom. 11, 20, approved.
Ram Sebuk v. Ram Lall, I. L. R. 6 Calc. 815, and
Ram Doyal v. Janmejoy, I. L. R. 14 Calc. 791,
distinguished. A release executed in writing by a
mortgagee in favour of an assignee of a portion of
the properties mortgaged, is inoperative, unless
registered, where the interest sought to be extin-
guished by it is of the value of RlOO or upwards.
Safdar Ali v. Luchman Das, I. L. R. 2 All. 554,
Basawa v. Kalkapa, I. L. R. 2 Bom. 489, Bhyrvh v.
Kalte, 16 W. R. 56, Naiulaktl v. Gurditta, 2 P. L. R.
615, referred to. A mortgagee, who has security
upon two or more properties, which he knows
belong to different persons, cannot release his lien
upon one so as to increase the burden upon the
others -without the privity and consent of the
persons affected. Suijiram v. Barham Deo, 2 C. L.
J. 202, and Surjiram v. Barluim Deo, 1 C. L. J.
337, followed. biAisi Alt v. Baij Nath Ram
Sahtj (1906) . . I. L. R. 33 Calc. 613

s.c. 10 C. W. N. 551

50. — Execution — Sale

— Injunction — Limitation — Limitation Act {XV of
1877), Sell. II, Art. 179, cl. {4) — Subsequent appli-
cation for sale of the entire property — Whether in
continuation of the previous application. A obtained
a mortgage decree against G and he applied on the
11th January 1901 for sale of the mortgaged pro- ,
perty. G's son claiming a portion of the property
filed" a suit and obtained an injunction for stay of
sale of the share claimed. On the 16th of May
1901, excluding the share of G's son, the property
was put up for sale. There being no bid the execu-
tion case was dismissed. On the withdrawal of the

( 8445 )

DIGEST OF CASES.;

( 8446 )

MORTGAGE-co,./ci. ^O^TG AG^E-contd.

5. SALE OF MORTGAGED PROPERTY— conici. i 5. SALE OF MORTGAGED PROPERTY— cow/d

(a) Rights of Mortgagees — contd. '

suit by the iudgment-debtor's son, the decree"
hoUler renewed his application for sale of the entire
property on the 4th of July 1904. The judgment-
(1,1. tor objected that, as regards the three-fourths
of the share of the property, which was previously
i,ut up for sale, the application was barred by
limitation. Held, that the application of the 4th
July 1904 must be treated as a continuation of the
former one of 11th January 1901. therefore the
execution was not barred by limitation. Eaghu-
wimkin Pershad v. Bhugoo Lai, I. L. R. 1' talc.
■J';s, distinguished. GuRrDEO Nabayax Sinha v.
Amkit Narayan Sinha (1905) ^ 00 r- i« r«
I. L. R. 33 Cale. 68

51 Purchase by decree-holders

^Tkcree— Sale— Sim-pie monei/ decree— Possession
-^Eights of parties. The plaintiffs, respondents,
nl.tained a decree for sale and an order absolute
under a mortgage executed by one R. H. H- C.
a son of R. H.. on the sole ground that he had
not been impleaded by the mortgagees, obtained a
decree, dat«d the 6th July 189S, declaring that his
share in the family property was not liable to sale.
Notwithstanding the latter decree, the plaintiffs
sold the entire mortgaged property and, themselves
purchasing, obtained possession. Next ./. A., the
holder of a simple money decree against M. U. ana
H. C. brought to sale a six-pie share together with
the equity of redemption of certain land in one of
the mortgaged vUlages and purchased himselt
J. K. then sued the plaintiffs for possession, obtained
a decree on the 17th December 1903, subject to any
ric^hts which the plaintiffs in the present case might
have over the propertv, and in execution of his
decree was given possession of, the six-pie share.
Held, that, although the plaintiffs purchase m
respect of the property covered by J. A. s decree
muVt be treated as a nullity, their general rights
«s mortf^agees were safeguarded by the terms ot
that decree, and s. 13 of the Code of CivU Procedure
could not bar the plaintiffs' right to bring the
present suit. Held, also, that the fact that the
plaintiffs had purchased a portion of the mortgaged
property did not limit them to a right to sue tor a
proportionate part only of the mortgage -debt
Bisheshur Dial v. Ram Sarup, I. L. R. ~~ All,
■281, distinguished. Jugal Kishore ^^ H..rb^.xs
€haudhri (1906) - . I. L. B- 28 Ail. /UU

o-^ Mortgagee paying prior

incumbrancer after sale, right of— Transfer of
Property Act (IV of ISS:'), s. ^9-Effect of order
Hibsoliite for sale. It is settled law that, m the
absence of clear proof to the contrary, it is to be
taken that, when the money of a person luterestea
in immoveable property, as for instance, the owner
of the equity of redemption or a puisne mortgagee,
goes to discharge an anterior encumbrance affecting
■it, the presumption is that the anterior encumbrance
enures to the advantage of the party making the
payment, if it is for his benefit so to treat it ; and
"this rule mil apply in favour of a person who, after

(o) Rights of Mortgagees — contd.
the sale of the properties in the execution of a decree
on the anterior mortgage, advances money on the
security of such properties to enable the judgment-
debtor to set aside such a sale under s. 310A of the
Code of Civil Procedure. Gokaldas Gopaldas v.
Purammal PremsuJchdas, I. L. R. W Ca'c. 1035,
referred to and followed. The provisions of s. 89
of the Transfer of Property Act have reference to
, the execution of a mortgage decree and ought not,
in reason, to be so construed as to render the appli-
cation of this principle impossible in cases where an
order absolute for sale had been made on the
ground that such order extinguished the security.
Dinobundhu Shaiv Chowdhru v. Jogrnaya Dasi, L. R.
29 I. A., referred to and followed m principle.
\ V\nmikalixga Mudali v. Chidajibara Chetty
(1905) .... I. L. R. 29 Mad. 37

53. Two mortgages on the same

property executed by the same person—

; Suit under the second mortgage for sale of the property

\ subnet to the first mortgage— Civil Procedure Code [Act
XIV of ISS-/), s. 43. Where a mortgagee holds

i two mortgages on the same property executed by
the same person he cannot maintain a suit to recover
the sum due on the later mortgage only, by sale of
the property subject to the prior mortgage. Kes-
havra-m v. Raxchhod (1905)

1 I. L. R. 30 Bom. Itj6

54_ Bights of subsequent mort-

i g'^gee — Limitation Act (XV of 1S77), Sch. II, Arts.

62, 120, 132 — Suit— Charge— Charge on surplus

1 proceeds of prior mortgagee's sale — Money had

I and received— Sale— Right to surplus sale proceeds.

1 Certain propertv was sold under a decree on the

! first mortgage, the second mortgagee, whose mort-

' gage had then matured, being a party to the

I decree. Subsequently the first mortgagee, who

had a third mortgage on it, obtained a decree

I thereon, the second mortgagee being no party, and

withdrew the surplus sale-proceeds in part satisfac-

' tion of the latter decree. The second mortgagee

afterwards sued on his mortgage, claiming, inter alia,

to recover the surplus proceeds so withdrawn with

' interest. Hekl, per S.^le and Hexdersox, JJ.

(Geidt, J., dissenting), that the plaintiff could only

establish his right to the money not as owner, but

: as part of his mortgage security by proving an

1 existing right under his mortgage and the suit so

' far as it related to the claim to recover the surplus

i sale -proceeds with interest being one to establish

i the plaintiff's right as mortgagee, was a suit to

enforce payment of money charged upon immove-

i able property within the meaning of Art. 132 of

; Sch. II of the Limitation Act and not one of money

had and received, the second mortgage not having

been proved in the first suit and no order havmg

, been made therein declaring the second mortgagee

entitled to the sum in dispute. When property is

sold under a decree on the first mortgage, the right

' of a puisne incumbrancer, who was party to the

/ 8447 )

DIGEST OF CASES.

8448 )

MORTGAGE— co«frf.

5. SALE OF MORTGAGED PROPERTY— con/rf.

(«) Rights of Mortgagees — contd.
decree, to follow the surplus sale-proceeds is an
equitable right, equity regarding his right not as
extuaguished or discharged by the sale, but as
transiferred thereby to the surplus sale -proceeds,
■which would be treated as part of his mortgage
security and his right to follow the money or the
nature of the suit to enforce such right cannot be
affected by the fact that the money had been
withdrawn from the Court by a party having notice
of the plaintiff's right. Jogeshar Bhagvt v. Ghanes-
ham Dass, 5 C. W. N. 356 ; Kamala Kanta Sen v.
Abdul Barkat, I. L. B. 27 Calc. ISO ; Padmanabh
Bombshenvi v. Khemu Komar Nail; I. L. B. IS
Bom. 6S4 ; and Baja Kisliendatt Bam x. Baja
Mumtaz All Khan, I. L. B. 5 Calc. 193 : L.B.6I.A.
145, referred to. Beehamdeo Pekshad v. Tara
Chaxd (1905) . . I. L. K. 33 Gale. 92

55.

Prior mortgage

-Puisne mortgage — Suit by prior mortgagee jar sale

Puisne mortgagee not made a party — Sale in execu-

fJQji — Bights of the puisne mortgagee. Wheie a
prior mortgagee sues his mortgagor for the sale
of the mortgaged property without making the
puisne mortgagee a party to the suit, the latter is
in no way affected by the suit or its results. Thus
if the property is brought to sale in execution of the
decree and is bought by a third person, the puisne
mortgagee has, as against him, preciselj^ the same
ri'^hts as he had collectively against his mortgagor
and the prior mortgagee. That is to 'say, he may
sue to redeem the purchaser as mortgagee or there-
after as mortgagor to foreclose or suffer himself to be
redeemed by him. PASDrBA:s-G v. Sakhaechand
(1906) . . . I. Ij. B. 31 Bom. 112

56. Agreement — Sale of mortgaged

property — Solehnamah — Transfer of Property Act (IV
of 1SS2), s. S9 — Jurisdiction — Execution of decree.
A suit on mortgage was adjusted, and a decree
made treating a solehnamah filed by the parties
as a part of the decree. It was agreed that the
amount due should be paid in instalments, and
that the mortgaged property should be sold in
default of payment. The decree as originally
dra\\Ti stated that on failure to pay any one in-
stalment, the whole amount would become due
and the mortgaged property would, in the mean-
time, remain hypothecated, but it did not direct
a sale of the property. Thereafter, on the
application of the decree-holder, the decree- was
amended by inserting the words — " On failure to
pay the money covered by the instalments, the
mortgaged property should be sold for realiza-
tion of the amount." The decree-holder then ap-
plied for and obtained an order absolute for sale. On
appeal, the said order was set aside on the ground
thiit, having regard to the form of the decree as
amended, no order under s. 89 of the Transfer of
Property Act could be made. Held, that the parties
hav ng agreed that the decretal amount should be
realized by sale of the hypothecated property, and
the agreement ha^•ing been expressed in proper form

MORTGAGE— co«/rf.

5. SALE OF MORTGAGED PROPERTY— confrf.

[a) Rights of Mortgagees — co7itd.
the Court had full jurisdiction to carry out th&
intention of the parties, and the mortgaged property
should be sold to satisfy the decretal amount and
that such execution accorded with the cursus curia.
Pisani v. Attorney General for Gibraltar, L. B.
5 P. C. 516, and Sadasiva Pillai v. Bamalinga
Pillai, L. B. 2 I. A. 219, followed. Abir Paea-
MAXiK V. Jahar Mahmud Mandal (1907)

I. L. R. 34 Gale. 886

Same property mortgaged

57. _

twice to same raortgagees — Suit for sale of
the property — Part purchased by mortgagees under
their decree on prior mortgage — Bemainder liable
for full amount of the subsequent mortgage. Six-
teen villages were" mortgaged by two mortgages-
of different dates to the same mortgagees. The
mortgagees put their earlier mortgage into suit,
obtained a decree, brought to sale 10 out of the Ift
villages and purchased them themselves. Held^
in a suit to sell the remaining villages in satisfaction
of the second mortgage, that the remaining six
villages were liable to the full extent of the second
mortgage and not merely fiT a proportionate part
of the money thereby secured. Zahir Singh v.
Buri Singh, F. A. No. 63 of 1903, decided 20th April
1905, and Bohra Thakur Das v. The Collector of
Aligarh, I. L. B. 2S All. 593, referred to. Raghu-
nath Prasad v. Jajina Peas ad (1906)

I. L. R. 29 All. 233

58.

Suit in form.a pauperis-

Covrt-fee — Property of defendant sold to realise
court-fee — Property sold subject to a mortgage — ■
Bights of mortgagee. Held, that the sale subject to
a mortgage of property belonging to the defend-
ant in suit brought in forma j^aujoeris for the
purpose cf realising the court-fee payable to
Government by the plaintiff, dees not preclude the
mortgagee from bringing to sale the same pn perty
in execution of a decree for sale as his mortgage.
The Collector of Moradahad v. Muhammad Daim
Khan, I. L. B. 2 All. 196, overruled. Ganpa{
Putaya v. The Collector of Kanara, I. L. B. 1 Bom
7, distinguished. Dost Muhajoiad Khax v. ]MA>rt
Ra3i (1907) . . . I. L. R. 29 AIL 537

59. Decree for sale — Decree for

sale subject to prior usufructuary mortgage of plainti "
A person having a usufructuaiy and two subsequent
simple mortgages on the same property is entitled
in a suit on the two latter mortgages to a decree for
sale cf the property subject to the prior usufruc-
tuary mortgage. Radha Krishna Iyer v. Mut-
HTJSAw^n Sholagas (1908)

I. L. R. 31 Mad. 530

60.

Mortgage decree

— Order for sale — Costs — Costs if can be recovered
from the mortgagor personally — Transfer of Pro-
perty Act (IV of 1SS2), s. 90. The costs awarded
by a decree directing the sale of mortgaged property
form part of the mortgage decree and the decree-
holder must proceed to recover the costs by a sale

( 8449 )

DIGEST OF CASES.

( 8450

MORTGAGE— coTi/c^.

5. SALE OF MORTGAGED PROPERTY— con<c?.

(a) Rights of Mortgagees — concld.
of the mortgaged property in the first instance, and
it is only when the mortgage property is found to
be insullicient to satisfy the decree that the decree-
holder can proceed against the other properties of
the mortgagor in the manner provided by s. 90 of
the Transfer of Pr(iperty Act. Ratnessur Sen v.
Jusoda, I. L. R. 14 Calc. 1S5 ; Damodar Das v.
Budh Kuar, I. L. B. 10 All. 1:9, distinguished.
Maqhid Fatlma v. Lalta Prasad, I. L. R. 20 All.
523, followed. Raj Kumar Sfsgh v. Sheo Naeain
Sahu (1908) . . I. L. R. 35 Calc. 431
s.c. 12 C. W. N. 364
61. Practice— De-
ceased— Defendant — Substitution of representatives
of — Pending suit — Consent-decree — Property charged
— Mortgage suit — Decree absolute — Liberty to apply
wlien implied — High Court Rule 516 [A). In a suit,
a consent-decree was made which provided that a
certain sum of money should be paid by a defend-
ant to the plaintifE within a specified time, that
the same should form a charge on certain property
menti(jned and that, in case of default, the property
should be sold for the realisation cf the money.
The defendant, the promisor, having died, the
plaintifi applied to have the names of his represen-
tatives substituted in the place of the deceased
defendant : Hekl, (i) that the decree was similar
to a mortgage-decree nisi directing a property to be
sold on non-payment of amount due within a speci-
fied time ; (ii) that such a decree was not a final one ;
(iii) that plaintiff had to apply, in the same suit for
a sale order ; (iv) that, therefore, the suit was a
pending one ; and (v) that application for substitu-
tion can be made and successfully entertained in
the same suit. Abhoyessury Dabee v. Gouri Sankar
Pandey, I. L. R. 22 Calc. 859, distinguished.
Bliagu-an Dass Khettry v. Nilkanta Ganguli, 9
C. W. N. 171, followed. Prosonnomoye Dabee v.
Raj Lukhy Dabee (unreported). Suit No. 2077V of
1902, decided on 10th August 1905, per Sale^ J.,
distinguished. Where an ( rder is not final, liberty
to ajDply to the Court is implied without its being
expressly reserved in the order. Kishory Lax,
Chowdhury v. RajaSewbus Bogla (1909)

13 C. W. ISr. 787

(b) Money-decrees on Mortgages.

62.

Suit to enforce a lien on

land — Sale of mortgaged premises — Money-decree.
A suit to enforce a lien on land which has been
mortgaged will lie, and the laud as it stood at the
time of the mortgage free from subsequent encum-
brances may be sold, although a decree for money
due upun the mortgage has been obtained, and
the right, title, and interest of the mortgagor thereto
has under such decree been once sold. Biswanath

MUKHOPADHYA V. GOSSAIN DaSS BaRAMADAK

3 B. L. R. Ap. 140

63. _ Rigid of suit

Against purchaser of moveable properly on which

VOL. III.

MORTGAGE— con?J.

5. SALE OF MORTGAGED PROPERTY— conti.

(b) Money-decrees on Mortgages — contd.
there is a lien. A suit will not lie against the
purchaser of proj^rty subject to a lien to recover
from him personally the amount of the lien, but
the lien is not lost by the sale, and a suit may
be brought against the purchaser with the object of
obtaining a decree for the realization of the lien by
the sale of the hypothecated property. Jugernath
V. Ilahi 3 N. W. 207

64. — __ Mortgage-bond

^vith covenant to repay money in default, agreement
to put mortgagee in possession of land. When a
mortgage-bond contained an agreement to repay
the money with interest by a certain day, and
proceeded thus : '' If I, the mortgagor, fail t') pay
the amount, then I will put you in pr ssessii.n of the
land and you may enjoy it, and when I have the
means I mIII redeem the land and pay the debt
with interest, and take back the bund;" — Held,
that on the mortgager's default the mortgagee
might sue for the money, and that he was nut buund
to accept the land and forego his right of action.
Annasvami v. Narranaiyan . 1 Mad. 114

65. _ Pledge of mort-
gage-bond— Fraudulent sale by mortgagor — Suit to
enforce mortgage against bond fide purchaser. A
prior encumbrancer will net be postponed t.j a sub-
sequent encumbrancer, unless he has been guilty
of gross negligence. A mortgaged land to B. B,
having bought certain land from C, pledged his
mortgage-deed to C to secure the unpaid purchase-
monej'. C gave the bond to A, who was his
brother-in-law. A, representing to D that the
mortgage was redeemed, sold the land to him,
giving him the bond as a title-deed. In a suit by B
against D to recover the mortgage amount by sale
of the land ; — HeW, that D, even although a bona
fide purchaser, could not resist the claim. JIutha
V. Sami . . . . I. L. R. 8 Mad. 200

66. Sale under money decree

— Lien on property mortgaged — Purchase by mort-
gagee. When a creditor who holds a bi nd whereby
property is mortgaged elects to take a money-
decree, and in execution therei f brings the mort-
gaged pr(,perty to sale, he by that sale transfers to
the purchaser the benefit vi his own lien and also the
right ( f redemption of his debtor. \\\\q\\ therefore
the decrce-hi Ider is himself the auction-purchaser,
he obtains the right to have his lien on the mort-
gaged land satisfied. Aruth Soar v. Juggunnath
MoHAPATTCB . . . 23 W. R, 460

67. ~. Suit on mort-
gage-bond— Transfer of lien — Third parties. Where
a mortgagee sues on his bond and takes a money-
decree, in executi n of which he attaches and sells
the mortgaged property, he transfers to the pur-
chaser the benefit of his own lien and the right of
redemption of his debtor ; but the transfer does not
include ticcadari rights, if the ticcadar was not
made a party to the suit on the bond. Byjnath
Singh v. Goburdhcn Lall Mohasoiiree

24 W. R. 210

12 N

( 8i51 )

DIGEST OF CASES.

( 8452 )

MORTGAGE— cow/ (f.

5, SALE OF MORTGAGED PROPERTY— cowti.

(6) MOXEY-DECREES ON MORTGAGES — COntd.

68. -^ Lien on mort-

gnge/i 'property — Advance to save property from
sale. A mere money-decree upon a mortgage-bond
gives the judgment-creditor the power of selling the
m'irtgaged property ^vith the lien, in the same way
as a decree with express pDwer to sell the mortgaged
property. Mohun Bagchi v. Girish Chfnder

BUNDOPADHYA . . . 1 C. L. R. 152

MtJNBASI KOER V. NOWRUTTim KOER

8 C. L. R. 428

69. Effect of, on

lien. Th" fact that a money decree has been ob-
tained on a bond by which property has been mort-
gaged does not destr.^y the lien on that property.
It is open to a plaintiS to establish his right on the
bond as well as on the decree. Hasoon Arra
Begtjm v. Ja-wadoonnissa Satooda Khandan
I. L. R. 4 Gale. 29

70.

Lien — Priority.

The plaintiS had lent money to a Court Ameen,
who mortgaged, as security for the repayment of the
amount, certain fees due to him then in deposit, and
certain fees which might hereafter be deposited on
his account. Those fees were subsequently attach-
ed by the defendant who had obtained a decree for
rent against the Ameen. After that, the plaintiff
obtained a simple money-decree against the Ameen,
and applied, in executi jn of his decree, to have the
fees paid out to him, but his applicati )n was re-
fused on the ground of the defendant's attachment.
In a suit to recover the sums in deposit and to have
it declared that the plaintiff's lien on them was
pri )r t > that of the defendant : — Held, that the
plaintiff's mortgage gave him pri >rity, and that he
was not barred from bringing the present suit by his
having already sued to recover the amount and
obtained a mere money-decree. Lala Tilakdhari
Lal v. Furlong . . 2 B. L. R. A. C. 230

s.c. Lalla Teeltjckdaree Lall v. Court
OF Waeds . . . . 11 W. R. 149

71. . — _ Lien on tnort-

gaged property — Form of decree. A mortgagee by
way of simple mortgage cannot assert his lien on the
property mortgaged, as against a subsequent mort-
gagee by way of conditional sale who had f ireclosed,
if the decree passed in favour of the former on
his mortgage-b.md does not provide for its- satis-
faction from the sale of the mortgaged property.
Ram Chunder Misser u.'Kally Prosonxo Singh

2 Hay 625

72. Sale in execW

Hon of decree on mortgage-hond — Lien on mort-
gaged property. In a suit for possession of property
which plaintiff's vendor {K) had purchased from
one A, R, K, the defendant in possession, claimed to
be entitled t > retain p )Ssession as purchaser under a
sale in executi^ m of a decree against A, which had
been obtained on bmds which pledged the pro-
perty, although the mortgage was not declared in

MORTGAGE— con/ci.

5. SALE OF M0RTGAGED]PR0PERTY— cort^ci.

(b) Money-decrees on Mortgages — contd.
the decree. Held, that, ii R K could prove that by
the bonds in question this property was pledged as
security for the debts covered by them, he would be
entitled to remain in possession. Ram Kant Roy
V. Raj Kishore Deb . . 24 W. R. 94

73.

Effect of taking money-

decree on mortgage-bond — Execution of decree-
Subsegiie7it purchaser. Allien a person to whom pro-
perty is pledged for a debt obtains a simple money-
decree against his debtor in respect of the debt, he
cannot execute that decree against the property
pledged where it is in the possession of a subsequent
hon4 fide purchaser. Gupinath Singh v. Shed
Sahai Singh

B. L. R. Sup. Vol. 72 : 1 W. R. 315

Distinguished in Beckwith v. Umesh Thunder

Roy 3 W. R. 110

Followed in Bhugwan Doss v. Nubee Buksh

7 W. R. 31
Gouree Singh v. Fuzl Hossein

15 W. R. 313

Umber Ali

15 W. R. 27

AilEEROONISSA

11 W. R. 225

Radha Gobind Surmah v.
Akbur Ali alias Aga Mirza

achumbit
dhry

French v.

Thakoor v.

Choonee Lall CHOW-[i
10 W. R. 271

Baranashee Banerjee

BiNDABUN Chunder Shaha v.

8 W. R.

Janee BeebebI
6 W. R. 3121

Ramnath Ram v. Deen Dyal Ram

W. R. 1864, 311

74. -_ Right of li

A mortgagee who obtains a simple

Purchasers

money-decree upon a bond by which property
mortgaged to him as a collateral security does
retain his lien on the property mortgaged after i
has passed int ) the hands of third persons. Saw
ruth Sing v. Bheenuck Sahoo

14 B. L. R. 422 note : 12 W.

ktec

R. 525

GoLucK MoNEE Debia V. Ram Soondur Chuck '
9 W. R. 8:

erbutty ....

Radha Gobind Surmah v. Umber Ali

15 W. R. Bed,

75. Effect of assign *'^

7nent of judgment-debt — Sale on property on ivhic 'I^
there is a lien — Civil Procedure Code, lSo9, s. 27t '^l
A simple decree for money upon a bond by whic ^^
immiveable property is mortgaged carries with ^*'"'-
a lien upon the property mortgaged, and that lie,
continues as an incideat to the debt when it pass
from a contract-debt into a judgment-debt, and
continues when such judgment-debt is subsequent
assigned to a purchaser. An attachment under
money-decree on a mortgage-bond and a mortgi

'pert

Spat;

( 8453 ]

DIGEST OF CASES.

( 8454 J

MORTGAGE— co?i/i.

5. SALE OF MORTGAGED PROPERTY— co«/cZ.

(b) Money-decrees ox Mortgages — contd.

lien cannot co-exist separately in the property

hypothecated, and such an attachment must be

treated when existinsr as an attachment f jr enforcing

the Jien. And if property subject to such lieii is

.-old in execution of a decree while it is under

attachment under the decree upon the mortgage -

bond, the lien existing up m the property is trans-

iVrred from the property to the purchase-money,

ami thereupon the property becomes thenceforth

discharged from the lien. If after the rejection

if a claim preferred by the mortgagee, or person

liming the lien, no regular suit is brought under

270 of Act VIII of 1859 to enforce the hen, that

1 is lost, and the decree becomes thenceforth a

: 10 money-decree chscharged from any incidental

a. Nadir Hossein v. Peaeoo THOvn.DARiXEE

14 B. L. R. 425 note : 19 W. R. 255

Raj Chunder Shaha v. Hur Mohun Roy

22 W. R. 98

76. - Rights of pur-

i.-icr. The purchaser of a simple money-decree
J osed on a bond hypothecating property does not
]ii''iely by his purchase acquire a lien upon the pro-
perty. Gampat Rai v. Sarupi

I. L. R. 1 All. 446

77.

Sale of property

r money-decree — Lien for prior hypothecation.
i<-- fact that property is sold under a decree
'dined by a plaintiff in respect of a debt'due to
u does not of itself prevent such plaintiff from
isting upon the lien to which he is entitled under
aior hypothecation to him, for another debt of the
ao property. A decree obtained under the sum-
Liy prvicedure prescribed by the Registration Act
ui be for money only, and not for the enforcement
A a Ueu. Juggux Nath v. Komul Sixgh

3 N. W. 123

78. Registration Act,

lb')i], a. 53 — Loss of lien. The taking a money-
decree on a specially-registered mortgage- bond
under s. 53, Act XX of lSfi6, does not extinguish the
murtgagee's lien on the property mortgaged by the
" ad. There is no substantial diSereuce between
■ effect of an ordinary money-decree on the bond
. 1 a decree on the bond for sale ^if the mortgaged
,.. jperty, S) that the remedy of the m >rtgagee is
iiie same so far as the parties t:) the suit are con-
^eniod, whether the decree be made under s. 53 or
■ a regular suit. Where the property mortgaged
passed into the hands of third parties, there is
liing in the fact that the mortgagee had obtained
1 decree on the bond to prevent him from bringing
a separate suit against the transferees. E.mam
Momtazooddeen ^lAHOiiED V. Rajcoo.mar Das.
Harajstchunder Ghose v. Dinobuxdhuo Bose
14 B. L. R. F. B. 408 : 23 W. R. 187

79. Sale of hypothe-

:atcd property for money-decree — Rights of incum-
Iruticers. R N executed in 1S64 a security-bond Jn

MORTGAGE— con td.

(b) Money-decrees on Mortgages — contd.
favour of K L, in 1855 a second bond in favour of
the defendant, in ISiiG a third bond in favour of
K L, and in 18G7 a fourth bmd in favour of the
defendant; all the bonds being registered and
including as security the property in dispute.
Both b md-holders took proceedings under Act XX
of 1866, s. 53, and obtained decrees. In 1868 K L
arranged Avith i2 .V to be paid by monthly instal-
ments at interest higher than was allowed by the
decrees. In 1869 he put up the property t > sale in
execution of his decrees, and it was purchased by
the plauatiff. Shortly after it was again put up to
sale m execution of the defendant's decrees and
purchased by the defendant, who got into possession.
In a suit t j recover possession : — Hdi. that, although
K L m his executi' m-proceedings referred to his
kistbandi as well as to his decrees and irregularly
included m the amount to be levied what was not
given by the decrees, yet as the proceeds did not
cover the decrees, the proceedings could not be held
to be void, nor the plaintiff's purchase a ntillity.
Held, als ', that what passed to the plaintiff was
the property hypothecated, of which he became
owner and prima facie entitled to possessicjn, having
purchased at the instance of a first incumbrancer,
and that defendant's lien could not protect him in
possession. Kamessur Pershad v. Dowt-ut Ram
19 W. R. 83
80. Sale in execu-
tion of decree on mortgage-bowl — Purchaser, right
of. Nothing passes to the auction-purchaser at a
sale in execution of a money-decree but the right,
title, and interest of the judgment-debt jr at the
time of the sale. Whether therefore a decree given
under s. 53, Act XX of 1866, declared the right of
the obligee of a simple mortgage-bond to bring ti
sale the hypothecated property, and such property
was sold in execution of the decree, the auction-
purchaser could not claim in virtue of the lien
created by the bond to defeat a second mortgage.
Akhe Ram v. Naxd Kishore

I. li. R. 1 AIL 236

81.

Mortgagee's lien

—Registration Act (XX of 1S66), s. 53. A and B,

ci-mortgagees, obtained a summary decree under
the Registration Act, XX of 1866, s. 53, on the 6th
May 1868, in respect of certain pr^ iperty which was
again mortgaged by the owner to C and D in March
1809. G and D, having also obtained a decree on
their mortgage, brought the property to sale in
execution of their decree, and purchased it them-
selves in December 1874- A not having had the
whole of his mortgage-debt satisfied, instituted a
suit on the 13th December 1879 against G and D,
and the representatives of B (B having meanwhile
died and his representatives not joining in the suit),
to enforce his lien against the mortgaged property
in the hands of G and D, and to recover the share
of the mortgago-debt still due to himself alone.
Hell, that A did not acquire a better right t j pro-
ceed against the property by reason of its having

12 N 2

( 8455 )

DIGEST OF CASES.

( 8456 )

MOBTGAGE— co«?f?.

5. SALE OF MORTGAGED PROPERTY— conW.

(6) Money-decrees on Mortgages — contd.
come into the hands of C and D, nor did C and D
take subject to a greater burden than the mortgagor
himself ;, and that, as A had allowed his decree
at^ainst the mortgagor to be barred by limitation,
he had lost all right to proceed against the property
by execution were it in the hands of the mort-
gagor, and consequently he could not be allowed
to proceed against it by suit merely because it was
in the hands of third parties. Einam Momtazood-
deen Mahomed x. Raj Coomar Dass, 14 B. L. B.
408 : 23 W. R. 187, and Jonmenjoy MulUch v. Doss-
money Dossee, I. L. B. 7 Calc. 714 : 9 C. L. B.
353, referred to. Cally Nath Bundopadhya v.
KooxJo Behary Shaha . I. L. R. 9 Calc. 651

82. — Sale in execu-

tion of decree — Purchaser, light of — Condition
against alienation. Where the holder of a simple
mortgage-bond obtained only a money-decree on the
bond, in execution of which the property hypo-
thecated in the bond was brought to sale and was
purchased by him, he could not resist a claim to
foreclose a second mortgage of the property created
prior to its attachment and sale in execution of his
decree. The view of the Full Bench of the Calcutta
High Court in Emam Momtazooddeen Mahomed v.
Bajcoomar Dass, 14 B. L. B. 40S, and the decision
in Bamu NaiJcan v. Puhharaya ihidali, 7 Mad. 229,
dissented from. Held, further, that the holder of
the money-decree in this case could not avail
himself of a condition against alienation contained
in his bond to resist the foreclosure. Bajah Bam
V. Bainee Madho, 5 N. W. 81, impugned. Khub
Chand v. Kalian Das . I. L. B. 1 All. 240

83.

Lease granted
n execution of

"by obligor, avoidance of — Sale
decree. An obligee under a bond giving him
charge upon land who sues for and obtains only a
money-decree, under which he himself purchases
the land, the sale-proceeds being sufficient to dis-
charge the debt, cannot fall back on the collateral
security for a debt which no longer exists. Semhle : —
That even if the sale-proceeds were not sufficient
to discharge the debt, the obligee could not, accord-
ing to the principle laid down in KJmb Chand v.
Kalian Das, I. L. B. 1 All. 240, avail himself of his
collateral security to avoid a lease granted by the
obligor after the date of the bond. Bulwant
Singh v. Gokaran Prasad . I. L. B. 1 All. 483
84. ^ Vsufructuary

mortgage — Execution of decree on money -bond —
Lien. A party who had obtained a farming lease
for a period of years on the understanding that he
was to repay himself the amount of a loan made to
the lessor out of the surplus usufruct of the estate,
not being satisfied with his security, sued on the
bond executed by the lessor and obtained a decree,
by executing which he realized from time to time
nearly the whole sum due. Held, that the decree
substituted another means of recovery for the one
previously given, and if he chose to recover the

MOBTGAGE— cow^(i.

5. SALE OF MORTGAGED PROPERTY— con<<i.

(6) Momey-decrees on Mortgages — contd.
greater part of his due under a decree which, in the
place of his farming lease, gave him power to sell
the property leased to him, he could not retain his
former status as well. Issur Chttnder Seix v.
Kexaram Ghose ... 14 W. B. 463

""• ■ Money-decree,.

sale under — Purchaser of property subject to mort-
gage. Plaintiff and defendant No. 5 had mortgages-
over the same property, the mortgage of the latter
being prior to that of the former. Defendant sued
for the money covered by the kistbundi, and
obtained a money-decree, in execution of which the
rights and interests of the mortgagor were purchas-
ed, after notice of plaintiff's lien by defendant No. 5^
who entered into possession. Held, that under the
circumstances the mortgagor's rights and interests
sold as above amounted only to the equity of re-
demption, and the sale did not extinguish plaintiffs'
right under the subsequent mortgage ; and that the
purchaser could be entitled to retain possession only
in case of his paving off plaintiff's lien. Deo
Chand Sahoo v. TEELrcK Singh 14 W. E. 238

86. Suit for posses- .

sion by purchaser at sale in execution of decree on a
mortgage, against mokurari tenure-holder of later
date. At a sale in 1871, in execution of a decree
upon a mortgage, dated 3rd May 1867, A purchased
the mortgaged lands, the existence of a mokurari
granted in 1868 having been notified at the sale.
Held, that a suit by A against the mokuraridars for
possession would not lie, the existence of the mort-
gage being no bar to the creation of a subsequent
incumbrance carrying Awlth it the right of posses-
sion. Emam Momtazooddeen v. Raj Coomar Doss,
14 B. L. B. 408 : 23 W. B. 187 ; Gopee Bundhoo
Shantra MolmpaUer v. Bheenuck Sahoo, 12 W. B.
522 ; Saraivan Hossein v. Shahazadah Golam
Mahomed, 9 W. B. 171 ; Gopecnath Singh v. Sheo
Sahoy Singh, 1 W. R. 315, discussed. Kokil Singh
V. DuLi Chund. Mitterjee Singh v. Duli Chitnd
5 C. L. B. 243

87.

Execution of

decree on mortgage — Sale in execution of mortgage-
decree. On the 9th June 1868, A, the mokurariclar
of a certain mouzah, mortgaged 8 annas of the
mokurari to B, and also gave him a dar-mokurari
lease of the remaining 2 annas. On the 26th Nov-
ember 1870 A mortgaged the -nhole 10 annas to C^
and on the 14th December 1875 sold a 1-anna share
of the mokurari to the predecessor in title of the
appellants. On the 11th June 1877 B obtained a
decree on liis mortgage which he assigned to the
plaintiff, who in execution of the decree s')ld 6 annas
of the mortgaged property and himself became the
purchaser. On the 2nd August 1877 C obtained a
decree upon his mortgage, and in execution thereof
he sold the remaining 4 annas of the mokurari to the
plaintiff. Two annas of the 10 annas share of the
mokurari mortgaged to C being subject to the dar-
mokurari lease to B, the plaintiff brought a suit for

( 8457 )

DIGEST OF CASES.

( 8458 )

MORTGAGE— cowfcZ.

5. SALE OF MORTGAGED PROPERTY— cow«<?.

(b) Money-decrees on Mortgages — contd.

the rent of the remaining 8 annas, and in that suit
the appellants, who were no parties to any of the
previous suits, intervened, on the ground that the
plaintitf was not entitled to the 1-anna share which
had been purchased by their predecessor in title
on the 14th December 1875. Held, reversing the
decision of the Court below, that the plaintitf was
nut entitled as against the appellants to the 1-anna
share, the subject oi the sale of the 4th December
1875 ; but that, if the lower Court on remand should
find the plaintiff to be in x>ossession of such share,
then a decree for rent should be passed in the plaint-
iff's favom', leaving the appellants to take any
steps which they might be advised. Phool CJiand
V. Kalian Dass, I. L. R. 1 All. 240, disapproved of.
Haran Chunder GJiose v. Dinohundoo Bofte, H B. L.
B. 408 : 23 W. R. 1S7 ; and Narsklas Jitram v.
Joglekar, I. L. R. 4 Bom. 57, followed. Madhu
Singh v. Achraj Sihgh . 9 C. L. R. 369

88.

Money-decree,

effect of sale by mortgagee of mortgaged property
"under — Assignment — Purchaser at sale in execution
of decree, right of — Lien. A mortgaged property
to B, who assigned his mortgage to U. U, under
an unregistered instrument, assigned his interest to
the plaintiff. The plaintiff then obtained a money-
decree against A personally and put up the property
for sale, and it was purchased on the plaintiff's
behalf. On going to take possession, the plaintiff
was successfully obstructed by N, a person who had
already purchased it at an auction -sale in execution
of a money-decree obtained against A by another
creditor. The plaintiff, having, before the date of
his decree, obtained a second assignment duly
registered from C, sued upon it, and, obtaining a
decree against the mortgaged property, put it up for
sale, and became the purchaser in his own name.
On going to take possession, he was obstructed by
the defendant, who had brought it in execution of
a money-decree against D, the former successful
purchaser and obstructor. Held, that, although the
mere taking of a money-decree for a mortgage-debt
does not extinguish the lien, still, when the mortgagee
proceeds to satisfy such decree by the sale of his
security, the interests of both himself and his judg-
ment-debtor in the said security pass t.) the auction-
purchaser. The particular nature of the right
acquired by the purchaser at a sale does not depend
on the form of the decree on which the mortgagee
lias proceeded to satisfy his judgment-debt. What
^the mortgagee really seeks when he proceeds to
■sell, whether under a decree for sale or a simple
money-decree, is to obtain satisfaction out of his
Becurity, — in fact, to enforce his lien ; and although
*he proceeding may be in execution of a money-
decree only, he cannot retain liis lien for enforce-
ment qua mortgagee, if the debt be not discharged
hy a second sale of the same property. Emam
Monitazooddeen Mahomed v. Rafcoomnr Doss, 14
B. L. R. 40S ; Bhugobutty Dossee v. Shama Chum
£ose, I. L. R. 1 Calc. 337 ; and Ramu Naikan v.

MORTGAGE— cowicZ.

5. SALE OF MORTGAGED PROPERTY— co«<i.

{b) Money-decrees on Mortgages — contd.
Subbaraya Mudali, 7 Mad. 229, foUowed. Khub-
chand v. Kaliandas, I. L. R. 1 All. 240, dissented
from. Narsidas Jitraji v. Jogi.ekar

I. li. R. 4 Bom. 57

89.

Mon ey-dec ree — -

Difference between execution of money-decree on a
mortgage and one not on mortgage — Right of pur-
chaser. Where a mortgagee is entitled U) a personal
decree against the mortgagor, or his heir, or repre-
sentative, and takes a mere money-decree against
him upon the mortgage, without any direction that
the amount of the decree shall be recovered by sale
or otherwise from the mortgaged property, the
mortgagee has nevertheless the right to attach and
sell that property under the money-decree, and such
sale transfers to the purchaser the interest both of
mortgagor and mortgagee in the same manner as if
the sale had been made under an express direction
in the decree. Even though the officer of the Court
should mention merely the right, title, and interest
of the mortgagor as what is sold, the interest of the
mortgagee who has promoted thesale passes by way
of estoppel, although the mortgagee executes no con-
veyance t > the purchaser. The only difference in
execution between a money-decree upon a mortgage
and one not upon a mortgage is that where the mort-
gaged lands are attached under the former, their sale
is deferred until six months or some other reason-
able period expires, in order to give the mortgagor
an opportunity to redeem, which he would have in a
suit for foreclosure or redemption. H^u^i r. Lrc-
KSHMAN . . . I. L. R. 5 Bom. 614

90. Mortgage-decree

— Lien — Sale in execution — PurcJiaser. A\'here a
mortgagee obtains a decree against his mortgagor
for sale of the mortgaged property to satisfy his
debt, he cannot sell that property reserving his own
rights over it, because it is for the very purpose of
satisfying those rights that the sale is made. And
if, instead of obtaining a decree fur the sale of the
mortgaged property, the mortgagee obtains only a
simple money-decree and sells the mortgaged pro-
perty under it, he is precisely in the same position
as far as his own interest is concerned. Li either
case the purchaser at the execution-sale takes the
property sold free from the mortgagee's lien. But
where the mortgagee puts up the mortgaged pro-
perty for sale at a time when the mortgagor has no
longer, any interest in the property, then nothing
passes by the sale, and the execution-purchaser does
not get any benefit from the fact that, previously
to the sale, the mortgagee had a lien on the pro-
perty. Emam Momtazooddeen Mahomed v. Raj
Coomar Dass, 14 B. L. R. 40S ; Gopce Bundhoo
Shantra Mohapattur v. Kalee Pudoo Boncrjee, 23 W.
R. 33S ; Ramkant Roy v. Rajkishore Deb, 24 U. R.
94; Khub Chand v. Kallian Das, I. L. R. 1 All.
240 ; and Dossmmiey Dossee v. Jonmenjoy Midlick,
I. L. R. 3 Calc. 363, discussed and explained.
Rajianath Dass v. Boloram Phookun

I. L. R. 7 Calc. 677 : 9 C. L. R. 233

( 8459 )

DIGEST OF CASES.

( 8460 )

93.

Purchase

mortgagee. K D, a Hindu ■nido w, by deed appoint
ed i? ^ to be lier general mooktear,'for the conduct
of certain suits in her name -n-hich were pending
in respect of the estate of her deceased husband.
By this deed dated September 25th, 1858, she
covenanted to repay him, within two months of
the successful termination of the suits, " all moneys
properly disbursed by him on her account, etc.,"
and also to pay him an additional sum as remunera-
tion to himself, i? S entered on the conduct of her
business, and advanced certain moneys on her
account ; and in October 1859 A' D executed in his
favour a second deed, by which she mortgaged to
him her share in the estate of R H, deceased, which
was in the hands of his executors, " and my decrees,
24 and 25, in the Zillah Court, and the decree in the
Supreme Court, and the right and interest of all the
said decrees and all other real and personal pro-
perties belonging to the said estate." By a decree
of the High Court of 28th July 1862 in one of the suits
brought by A' D, the estate oi B H was declared
to consist of a share of a certam talukli, of a
share of a house in Calcutta, and of a certain sum of
money ; and K D was declared to be entitled to one
moiety thereof. K D afterwards obtained an order
for possession, and held possession of the said
taluldi until August 1866. R S continued the con-
duct of A Z)'s business, and advanced more money
on her account, in respect of which, on May 31st,
1865, he brought a suit against her ; and on Sep-
tember 21st, 1865, obtained a decree in his favour.
Under this decree, he attached the right, title, and

MORTGAGE— con td.

6. SALE OF MORTGAGED PROPERTY— confrf.

(b) MOKEY-DECEEES ON MORTGAGES — COntd.

91. Mortgage-decree

— Sale 'in execution — Mortgagee's Hen. A mort-
gagee who elects to take a money-decree, and
becomes himself the purchaser of the property mo:t-
gaged at a sale in execution of that decree, may bring
a suit to enforce his lien against a person who pur-
chased the right, title, and interest of the same
debtor in the same property at a prior sale in execu-
tion of a prior money-decree. Dossmoney Dossee v.
Jonmenjoy MvUicJ:, I. L. R. 3 Calc. 363, overruled.

JONMENJOY MrXLICK V. DoSSMONEY DOSSEE

I. li. E. 7 Gale. 714 : 9 C. L. R. 353

92. Subsequent suit

hy mortgagee to enforce his lien on the property
mortgaged. The plaintiii, a mortgagee of certain
specific property, given as security for an advance,
obtained a money-decree against the representatives
of his debtor. A third person, having a claim
against the same debtor, seized and attached the
specific property mortgaged to the plaintiff, and sold 1
it to J, who had notice of the plaintiff's lien. The \
plaintiff then brought a suit asainst A and the repre-
sentatives of his debtor to have his lien declared 1
and debt satisfied. Held, that, notwithstanding the j
plaintiff's previous money-decree, he was still j
entitled to enforce his lien against the property |
pledged. Rajkishoke Shaw v. Bhadoo Noshoo l
I. L. K. 7 Gale. 78

MORTGAGE— co7i<(f.

5. SALE OF MORTGAGED PROPERTY— cowfcf.

(6) MoxEY'-DECBEES ON Moetgages — contd.
interest of A Z) in the estate oi R H ; and on 25th
June 1866 it was put up for sale, and purchased byr
R S himself. In a suit brought by A D against R S
among other things for an account ; — Held, that R S-
was a trustee for K D in respect of her share in the
estate of R H, which he had purchased in execution
of his decree. Kamini Debi v. Ramlochan
SiEKAK 5 B. L. R. 450

94.

Lien of mort-

gagee on sale of right, title, and interest of mort--
gagor — Writ of fi. fa. — Purchase at Sheriff's sale
at instance of mortgagee. N, 31, and G borrowed
from B a sum of R 12,000, to secure repayment of
which they executed in her favour a joint and several
bond in ^lay 1863 for payment of the said sum with
interest on the 6th May 1864, and also a warrant to
confess judgment on the bond on the 27 th April 1864^
N, M, and G executed a mortgage, in the English
form, of certain property to B, purporting to do so
in pursuance of an agreement alleged to have been
entered into between them and B at the time the-
money was advanced by B in 1863 ; but the evidence
was not sufficient to show that such agreement had
been entered into. Under a writ of fi. fa. issued
previously to the mortgage of 1864, — viz., on the
23rd of March 1864, — in a suit against 31 and N, the
Sheriff sold to A, on the 7th July 1864, the rights
title, and interest cf 31 and N in the mortgaged
property. Assuming that an agreement to mort-
gage had been entered into in 1863, A had no notice
of such agreement. After this a writ of fi. fa. was
issued by the Sheriff, at the instance of B, in execu-
tion of a decree which B had caused to be entered
upon the bond of Mav 1863 ; and under that writ
the Sheriff, on the 22nd February 1866, sold the
right, title, and interest of N, 31, and G in the
mortgaged property, and A became the purchaser.
The purchase-money at this sale was paid to B, and
A entered into possession of the property. In a suit
by B against A and others on the mortgage of the
27th of April 1864, for foreclosure or sale of the pro-
perty, the Court below (Pheae, J.) held that the-
fi. fa. issued on the 23rd of March 1864, pre\-iously
to the mortgage, must be taken to have operated
against the share of 31 and N from the date when
it was issued ; that even if there was an agreement
to mortgage, as alleged, then, although as against
N, 31, and G themselves, a Court of Equity would
treat such agreement as equivalent to an actual
mortgage, yet it would not do so as against a pur-
chaser under the fi. fa. without notice ; and that the
sale cif the 7th July 1864, therefore, passed the
shares of 31 and N to A free of any rights or equitieB-
of B. Further, that the sale by the Sheriff of the
22nd February 1866, having been effected at the
instance of B for the purpose of realizing the mort-
gage-debt, was operative, as between B and A, to
•pass to A the entire shares of N, 31, and G in the
property free of B's mortgage-hen. Held, on
appeal, that, no agreement to mortgage being estab-
lished, the sale by the Sheriff to A in 1864 overrode

( 8461 )

DIGEST OF CASES.

{ 8462 )

MORTGAGE— con<(^.

5. SALE OF MORTGAGED PROPERTY— conW.

(6) MCNEY-DECEEES ON MORTGAGES COntd.

the mortgage to B, and passed to A the shares of 31
and N. Held, further, that the sale by the SherifE in
1866 being of the right, title, and interest of N, 31,
and G, and made at the instance of B, without
notice cf her mortgage, and B having received the
purchase-money ■nhicli would appear to have been
estimated on the value of the unencumbered shares,
and no objection having been made to the sale by
the n:ortgagor.-;, who had allowed A to hold unchal-
lenged possession ever since, the entire equitable
estate in the share of G must be taken to have
passed to ^. A mortgagee is not entitled by a
means of a money-decree obtained on a collateral
security, such as a bond or covenant, to obtain a
saie of the equity of redemption separately. To allow
him to do so would deprive the mortgagor of a
privilege which is an equitable incident of the con-
tract of mortgage, namely, a fair allowance of
time to enable him to redeem the property. Bhtjg-

GOBUTTY DOSSEE V. ShAJIACHURN BoSE

I. L. R. 1 Calc. 337

95.

Priority of mort-

gage— Sale to enforce lien on land. On the 15th
July 1864 two undivided brothers executed a
mortgage of their joint property to the plaintiff for
R500, and on the 8th January 1868 they executed
another mortgage of the same property for R 1,000
to the defendant, who registered it under Act XX
of 1866. In August 1871 a suit was brought against
the brothers by the plaintifi on the mortgage of
1864, and a decree for the sum due was made in
October 1871, directing that, if the sum due was not
paid within two months, the n.ortgaged property
should be sold. In March 1 872 the property was
St Id in execution of the above mentioned clecree and
bought by tl'.e plaintiff, who was duly put into
possession. In 1871 a suit was brought against the
brothers on the mortgage of 1868 by the defendant ;
a decree was made similar to that in the above-
mentioned suit, a sale of property was had, and it
was bought by the defendant. The plaintiff was
thereupon dispossessed and referred to a regular suit,
and the defendant was put into possession. This
suit was then brought by the plaintiff, the first
mortgagee and purchaser, to eject the defendant,
the second mortgagee and purchaser, and, the
lower Appellate Court making a decree in favour
of the plaintiff, the defendant filed this second
appeal. Held, that, the plaintiff having bought
the rights and interests of the mortgagors under a
Bale held prior to the sale to the defendant, the
mortgagors had no right or interest to sell to defend-
ant ; but that, as the purchase by plaintiff was
subject to the mortgage to the defendant, and as
defendant was not a party to plaintiff's mortgage
suit, defendant's right as mortgagee was not affect-
ed by the sale to the plaintiff, though effect could
not be given to that right in the present suit. Vex-

KATANARASAMMAH V. RamiaH

I. L. R. 2 Mad. 108

MORTGAGE— confif.

5. SALE OF MORTGAGED PROPERTY— contd.

(h) Money-decrees on Mortgages — concld.

96.

3Iortgage for

securing fayment of rent — Decree by Bevenne Court
for arrears of rent — Decree time-barred — Effect of
decree on mortgage — 3Ierger — Suit for sale of mort-
gaged ■property. In 1874 the plaintiff leased certain
immoveable property to the defendant, and the
latter executed a deed by which he covenanted to
pay the annual rent and fulfil f ther conditions of
the lease and gave security in P. 3,000 by mortgage
of landed property. In 1874 the plaintiff obtained
decrees in the Revenue Court for arrears of rent, and
the decrees were partially satisfied and then became
barred by limitation. In 1884 the plaintiff brought
a suit to recover the balance due by enforcement of
the mortgaged security against the purchasers of the
n ortgaged property. Held, that, when the plaintiff
obtained his decrees for rent, the mortgage security
did not merge in the judgment-debts, nor did he
lose his remedy on it ; that the tw. > rights were
distinct, and the right of action on the n ortgage
security was not lost because the executirn of the
decree for rent was time-barred, the f nly effect of
which was that the debt was not recoverable in
execution, but the debt existed nevertheless so far
as to enable the amount secured by mortgage to be
recovered by suit in the Civil Court, so long as
such suit was not barred by limitation. E?nam
3Iumtazooddeen 3Iahomed v. Rajcoonwr Da-^s,
14 B. L. R. 40S, referred to. Held, also, that the
anount which the plaintiff could recover by enforce-
ment of the mortgage security was limited to
R 3,000. Chunni Lal v. Banaspat Sixgh

I. L. R. 9 All. 23

97.

Sale in

tion of a simple money decree of mortgaged property —
Notification of mortgage — Purchaser not estopped
from disputing the existence of the mortgage — Civil
Procedure Code, ss. -282, -^So ami 2S7. In execution
of a simple n oney decree the rights of a n ortgagor
in certain property ostensibly subject of an ortgage
were put up to sale. The property was not sold
subject to the n ortgage, as contemplated by s. 282
of the Cede of Civil Procedure, but the existence
of the mortgage was notified in the proclamation of
sale for the benefit of intending purchasers. Held,
on a suit brought by the nortgagee for sale, that the
auction-purchaser was not under the circumstances
debarred from proving that the mortgage in suit waa
fictitious and without consideration. Imiyat Singh
V. Izzat-un-nissa, I. L. B. 'Ji All. 9i, referred to.
Shib Kunwar Singh v. Sheo Prasad Singh
(1906) . . . . I. L. R. 28 All. 418

98.

Effect of sale of mortgaged

property — Bights of purchaser. By a sale of
mortgaged pro^x^rty in execution of a decree
obtained by a mortgagee against the mortgagor
upon the mortgage the interest both of the mort-
gagor and mortgagee passes to the purchaser. But

( 8463 )

DIGEST OF CASES.

( 84W )

MORTGAGE— confd.

6. SALE OF MORTGAGED PROPERTY— con/(^.

by a sale of mortgaged property in execution of a
money-decree obtained by the mortgagee against
the mortgagor, the interest of the defendant (mort-
gagor) aloiie passes to the purchaser. Maganlal
V. Shakra Girdhar . , I. L. R. 22 Bom. 945
See Khevraj Jusrtjp v. Lengaya

I. Ii. R. 5 Bom. 2
Sheshgiri Shambag v. Salvadar Vat.

I. L. R. 5 Bom. 5

and Shayma Churn Bhuttacharjee v. Ananda
Chandra Das . . . 3 C. W. N. 323

99. Discharge of

encumbrance by intending purchaser — Bon-i fides.
A, having mortgaged land to B, agreed to sell it to
C and then to D, in whose favour he executed a con-
veyance bearing a date prior to the contract with C.
C sued A and D to have the conveyance set aside
and his contract specifically performed, and a decree
was passed in his favour. While the suit was pend-
ing, D paid off B and now sued A and C to recover
the money paid by him. Held, that the plaintiff
occupied the position of the mortgagee whom he
had paid off, and that the sum constituted a charge
on the land. Syajialarayudu v. Subbarayudu

I. Ii. R. 21 Mad. 143

100. Title of pur-

chiser — Transfer of Property Act (7F of 1SS2),
■s. 99 — Moneif decree obtaimd by mortgagee. Prior
to passing of the Transfer of Property Act, a mort-
gagee obtained a money-decree against his mort-
gagor, and in execution sold the mortgaged pro-
perty. The son of the mortgagee brought it at the
sale. Held, that by his purchase at the execution -
sale the son took an absolute title, and was not liable
subsequently to be redeemed at the suit of the heirs
of the mortgagor. Martand v. Dhondo, I. L. R. 22
Bom. 6:? /, distinguished. Semhle : A third person
purchasing mortgaged property honi fide at a sale in
execution of a money-decree obtained by the mort-
gagee against the mortgagor obtains a good title
free from the mortgage lien, unless the sale is made
subject to it. Hxjsein v. Shankargiri

I. L. R. 23 Bom. 119
101. ^ '^Mortgaged 'pro-
perty sold subject to right to reedem — Purchase
as agent. When mortgaged property is sold at
auction subject to a mortgagor's right to redeem
the mortgagor's equities follow the property even
when it turns out that the purchaser bought "as
agent, and not as principal. Munsoor Ali Khan
V. Ojoodhya Ram Khan . . 8 W. R. 399

102. Priority of d

on sale after hypothecation. Land subsequently
sold is liable for a debt for which the land was
previously hypothecated. Sadagopa Chariyar
V. Ruthna Mudali . . .5 Mad. 457

103, ^ Lien— Bight of

purchaser — Purchase by mortgagee. A, being in-
debted to B, bound himself by deed not to alienate

MORTGAGE— contd.

5. SALE OF MORTGAGED PROPERTY— co»?(Z.

(c) Purchasers — contd.
his rights in certain property until hLs debt to B waa
satisfied ; if he did alienate, provision was made for
a decree to issue and to be executed. A subse-
quently gave a patni of the propertv to C. After
the creation of the patni, B obtained and executed
the decree provided for in the deed between himself
and A, and purchased in execution the right of A in
the property, and afterwards sold the same rights to
the plaintiff. Held, that, in a suit against C to set
aside the patni, the plaintiff had no right to set it
aside, it having been created prior to his purchase
from B, and the lien possessed by B had not passed
to him. Erskine v. Dhun Kishen Sein

8 W. R. 291

Sooney Ram Marwaree v. Byjnath Kooer

10 W. R. 88

See Soujharee Coomar v. Rameshur Panda.
Rajieshur Panda v. Soujharee Coomar

4 W. R. 32

104.

Effect of 51

sequent mortgage— Merger. A creditor holding a
mortgage on the lands of his debtor does not neces-
sarily surrender that mortgage, or lower its priority
by taking a subsequent mortgage, including the
same lands with other lands, for the same debt.
Whether the earlier mortgage becomes merged and
extinguished or not is a question of intention.
Goluknath Misser v. Lalla Prem Lal

I. L. R. 3 Calc. 307

105.

cution of decree — Purchase

Sale in exe-

subject to mortgage
securities — Extinguishment of lien on purchase
by mortgagee. Defendant No. 1 (G C), on 9th
August 18G3, borrowed monej' from plaintiS upon a
bond, hypothecating property by way of simple
rnortgage. On 27th August "lS67, he" executed a
similar instrument in favour of defendant No. 2
(G B) on a further loan. On 13th May 1867, he
executed a second bond in favour of plaintiff for the
amount (principal and interest) due under the first
bond. On 29th May 1869, plaintiff obtained a
decree against defendant No. 1 for the money due
under the bond of 13th lAIay 1867, and on 30th July
1870 defendant No. 2 (G B) also obtained a decree
upon his bond against the said debtor. In execu-
tion of plaintiff's decree, the property was sold and
purchased by decree-holder on 25th August 1870.
After this G B also executed his decree and attached
the property, which, notwithstanding plaintiff's
objection was put up to sale and purchased by G B,
who obtained possession. Plaintiff sued to' have
the sale to the latter set aside and his own purchase
upheld. Held, that plaintiff, on purchasing at the
sale in execution, took subject to the defendant's
security to this extent, that the defendant by pay-
ing off the prior debt might establish his own secu-
rity. Held, that the question whether plaintiff's
firsi security was extinguished by his taking a
second security, covering the original debt with

( 8465 )

DIGEST OF CASES.

( 8466 )

MORTGAGE— coji?^.

5. SALE OF MOETGAGED PROPERTY— co?i<cZ.

(c) PuBCHASEES — contd.
interest, would depend upon the intention of the
parties, which in this case, was shown by the
original bond having remained in the possession of
the creditor. Gopee Bundhoo Shaxtra Moha-

PATTXJB V. KaLEE PuDO BaNERJEE

23 W. R. 338

106. Extinction of

charge — Intention of parties — Presumption. Whe-
ther a mortgage, paid off, has been kept alive or
extinguished, depends upon the intention of the
parties ; the mere fact that it has been paid off not
deciding the question whether or not it has been
extinguished. Express declaration of intention will
cause either the one result or the other and in the
absence of such expression the intention may be
inferred, either one way or the other. A lender of
money upon a mortgage, which, however, having
been made by a person not having authority to
charge the greater part of the property included in
it, was to that extent invalid, relied upon a charge
effected in a prior paid-off mortgage to another
mortgagee of the same property. The balance due
for the prior mortgage-debt had been paid out of
the money advanced on the later, and the prior
instrument had come into the possession of the
present mortgagee. Held, that it must be pre-
sumed, in the absence of any expression of inten-
tion to the contrary, that the borrower who claimed
to be the owner of the property which he attempted
to charge intended that the money should be ap-
plied in paying off and extinguishing the prior
mortgage, there being no intermediate incumbrance.
It being also presumable that the lender lent the
money upon the security of the later mortgage,
he did not become entitled to an additional security
merely because that which he had taken had thus
proved invalid in part. Held, therefore, that the
prior mortgage had been extinguished. Mohesh
Lal v. Bawam Dass

I. L. R. 9 Calc. 961 : 13 C. L. R. 221
L. R. 10 I. A. 62

107.

Tivo mortgages

to same mortgagee — Merger of first mortgage —
Intention — Decree on second mortgage — Other mort-
gagees not made parties to suit — Purchaser at auction
sale — Priority — Suit by purchaser for possession —
Right of other mortgagees to redeem — Form of decree.
On the loth of July 1870 certain lands were mort-
gaged by their owners {S and his sons) to H, with
possession under a registered mortgage. On the
11th of June 1871 the same lands were mortgaged
without possession to the defendant ; on the
loth of June 1873 a second mortgage, purporting
to give possession, was executed to H ; on the
12th of June 1873 a second mortgage, also purport-
ing to give possession, was passed to the defend-
ant; on the 15th of November 1877 i/ obtained
a decree against the mortgagors upon his mortgage
of 10th June 1873, and" sold the lands which
vere purchased by the plaintiff. The plaintiff

MORTGAGE— coH/«Z.

5. SALE OF MORTGAGED PROPERTY— confi.

(c) Purchasers — contd.
sought to obtain possession, but was obstructed
by the defendant. He thereupon brought this suit.
The defendant contended that he had not been a
party to the suit by H, and was entitled to posses-
sion, and offered to pay to the plaintiff the amount
of his purchase-money, or to vacate the lands on
satisfaction of his own mortgage-lien. Held, that
the C|uestion whether H's mortgage of the 15th
July 1870 was to be regarded as merged in his
second mortgage of 10th June 1873 so as to deprive
him of priority of title over the defendant, depended
on the intention of the parties to the said mortgage,
and there was nothing in the second mortgage-deed
to show an intention to forego the benefit of the
security created by the prior mortgage-deed of 15th
July 1870 which was neither given up to the mort-
gagor nor cancelled at the time, but remained with
H until handed over to the plaintiff with the other
title-deeds. Under these circumstances, the decree
passed on the 15th November 1877 conferred an
absolute title on the plaintiff, who purchased at the
auction-sale free from all incumbrances created by
the mortgagor subsequent to the mortgage of 15th
July 1870. The defendant, however, not having
been made a party to H's suit to enforce his security
did not lose his right of redemption, -nhich still
remained to him. The plaintiff therefore jiurchased
the property subject to the defendant's right of
redemption. The High Court passed a decree
ordering the defendant to deliver up possession to
the plaintiff, but that he (the defendant) should be
at liberty to redeem by payment to the plaintiff
within six months of the amount which would be
due on the mortgage of the 15th July 1870, if the
same had remained unaffected by the mortgage
of 10th June 1873, or in default, should remaiu for
ever foreclosed. Dullabhdas Devchaxd r. Laksh-
MANDAS Sarupchand . I. L. R. 10. Bom. 88

108.

Merger of right

of suit upon a mortgage in a subsequent decree thereon
— Questio7is as to execution between parties to a suit
— Act XXIII of 1S61, s. 11. fpon a mortgage
of land made little less than sixty years before
the present suit, a decree followed in 1825 to the
effect that an account having been taken of what
was due on the mortgage, the mortgagor might at
any time make a tender of such mortgage-money
with interest up to date, and require that the land
should be restored. The plaintiff, representing the
interest of the original mortgagor, sued for redemp-
tion of the mortgage treating the above decree as
regulating the rights of the parties from the time
when it was made. Held, that the right of the
plaintiff was a right to execute the above decree,
subject to the law of limitation, and not a right to
obtain a decree for redemption and possession ; the
law also providing that questions between the
parties to a suit relating to execution of decree must
be determined by the order of the Court executing
it. Haei Ravji CHiPLrxKAR V. Shapurji Hor-
SMAji Shet . . . I. L. R. 10 Bom. 461

( 8467 )

DIGEST OF CASES.

( 8468 )

MORTGAGE— ^oni'i.

5. SALE OF MORTGAGED PROPERTY— coRfi.

— First mortgage

109.

faid off htj third mortgagee in ignorance of second
mortgage — Registration — Notice — Intention to keep
alive first mortgage f resumed. S mortgaged land
to P. G subsequently obtained a decree, by-
consent, against S creating a charge on the same
and other land, and registered the decree. A, in
ignorance of G's decree, paid off P's mortgage, but
took no assignment thereof, and took a mortgage
from S of all the land covered by G's decree. In a
suit by G against S and A to enforce payment of
his mortgage -debt : — Held, that A, not having had
notice of G's decree, was entitled to stand as first
incumbrancer in respect of the money paid to dis-
charge P's mortgage ; and that, even if registration
was legal notice, an intention to keep alive P's
mortgage was to be presumed in favour of A in ac-
cordance with the ruling of the Privy Coimcil in
Ookul Doss Gopal Doss v. Rambiix Seochand, L. B.
11 1. A.' 126. Gangadhaea v. Sivaeama

I. L. R. 8 Mad. 246

110.

Condition against

The proprietor of cer-

aheyiation — Lis pendens.

tain immoveable property mortgaged it in July
1875 to A' and in September 1875 to L. In October
1878 he sold the property to K. In November 1878
L obtained a decree on his mortgage-bond for the
sale nf the property. The suit in which L obtained
this decree was pending when the property was sold
to K. K sued L to have the property declared
exempt from liability to sale in the execution of Us
decree, on the ground that the mortgage to L was
invalid, it having been made in breach of a condition
contained in K' s mortgage-bond that the mortgagor
would not alienate the property until the mortgage-
debt had been paid. Held, that the purchase by K
of the equity of redemption did not extinguish his
security, it being his intention to keep it alive ; and
that the purchase <:,f the property by K while Us
suit was pending did not prevent K from contesting
the validity of Us mortgage, so far as it affected him
on the ground that it was an infringement of the
stipulation in the contract between him and the
mortgagor. Lachmin Nakain v. Koteshar Nath
I. Ii. R. 2 All. 826

111. Rights of parties on sale —

— Prior and puisne mortgagee — Purchase by prior
mortgagee of equity of redemption at a Court-sale
— Evidence of intention to keep mortgage alive.
Where a prior mortgagee purchased the equity of
redemption at a Court-sale: — Held, following the
Full Bench ruling in Mulchand Kuber v. Lallu
Trikam, 1. L. R. 6 Bom. 40-1, that in a contest
between liimself and a puisne mortgagee he was
entitled to fall back upon his original mortgage and
to retain possession until his mortgage was paid
off. Generally, slight evidence will suffice to show
that the prior mortgagee intended to retain the
benefit of his mortgage. The fact that the
mortgage-deed remains with the mortgagee who
purchases, is evidence that he intends to retain

MORTGAGE— conW.

5. SALE OF MORTGAGED PROPERTY— con<(Z.

112

Presumption

as to person paying off a prior mortgage — Con-
struction of stipulation in mortgage-deed. The
presumption, generally speaking, in the absence of
any evidence to the contrary, is that a person whose
money goes to satisfy a prior mortgage intends to
keep alive for his benefit that prior mortgage.
Where a mortgage-bond contained the following
stipulation : " And I shall redeem the mortgage-
bond of A and deliver it to you to your satisfaction;''
— Held, that it was an indication of the intention on
the part of the mortgagee to keep alive the security
of A in his favour. Aiiae Chandea Kuxdu v.
Roy Goloke Chandea Chowdhei

4 C. W. N. 769

113.

Presumption

that person paying off a mortgage intends to keep
the security alive. In 1861 B granted a lease of
his zamindari to A for 30 years, A undertaking to
pay off all debts then clue by B. B died in 1882,
and his successor sued A and obtained a decree that
on payment of R 1,20,000 A should give up posses- •
sion of the zamindaii. This sum having been paid
into Court, A lost possession of the zamindari. On
January 5th, 1875, A had mortgaged the whole
zamindari, which consisted of 22 villages, to M to
secure a loan of R 1,00,000 borrowed by A to pay off
the debts of B which A undertook to pay in 1861.
On 27th June 1879 A, being indebted to" 21 in the
sum of R 1,78,000, paid M R 1,00,000 and undertook
to pay the balance out of the income of the estate,
M releasing the 22 villages from the mortgage of
January- 5th, 1875. On June 28th, 1879, A execut-
ed a mortgage of the 22 villages to L, to secure re-
payment of R 1,30,000. Of this sum R 1,00,000 waa
borrowed to pay 31, and R 30,000 was a prior debt
due by A to U Of the R 1,00,000 paid to 31,
R 27,000 was specially applied to discharge so much
of the charge created by the mortgage of January
5th, 1875. On January 30th, 1875, A borrowed
from S R 43,000, and mortgaged to her 10 of the 22
villages of the zamindari. In 1885 S sued L to
have her debt declared a first charge on the money
paid into Court by the zamindar. The Subordinate
Judge held that L had a prior claim on the fund,
and dismissed the suit. Held, on appeal, following
the principle of the decision in Gokaldas Gopaldas
V. Puranryial PremsukJ.das, L. R. 11 I- A. 126:
I. U R. 10 Calc. 1035), that L wa= entitled to a first
charge on the fund to the extent of R27,000 which
had been applied to pay off the mortgage of January

5th, 1875. RlJPABAI V. AUDIMULAM

I. Ii. R. 11 Mad. 345

114.

Extinguishment

Effect of payment

ncumbrances.

of prior mortgage — Intenti

of prior mortgage by subsequent

The mortgagor's right, title, and interest in certain

immoveables in the Dekkan subject to a first and

( 8469 )

DIGEST OF CASES.

C 8470 1

TS.O'RTQAG'E—conid.

5. SALE OF MORTGAGED PROPERTY— com/c?.

(c) Purchasers — contcl.
second mortgage, were sold in execution of a decree
to a purchaser who afterwards paid off the first
mortgage. Held, that, as he had a right to extin-
guish the prior charge or to keep it alive, the ques-
tion was Mhat intention was to be ascribed to him ;
and that, in the absence of evidence to the contrary
the presumption was that he intended to keep it
alive for his own benefit. \Vhere property is sub-
ject to a succession of mortgages, and the owner of
an ulterior interest pays oft an earlier mortgage, it
is a matter of course, according to the English prac-
tice, to have it assigned to a trustee for his benefit,
as against intermediate mortgagees, to whom he is
not personally liable. But in India a formal trans-
fer for the purpose of a mortgage is never made, nor
is an intention to keep it alive even formally ex-
pressed. It was ruled in the English Court of
Chancery in Tovlmin v. Steere, 3 Mer. 210, that the
purchaser from an owner of an ecjuity of redemption
with actual or constructive notice of another in-
termediate incumbrance is precluded, in the absence
of any contemporaneous expression of intention,
from alleging that, as against such other incum-
brance, the prior mortgage paid off out of the pur-
chase-money is not extinguished. That case was
not identical with this where the prior mortgage
was not paid off out of the purchase-money, but
was paid off afterwards by the purchaser. The
above ruling, however, is not to be extended to
India, where the question to ask is, in the interest
of justice, equitj', and good conscience there appli-
cable— what was the intention of the party paj-ing
off' the charge. Gokaldas Gopaldas v. Pueanmal
Peemsukhdas . . I. L. R. 10 Calc. 1035
L. R. 11 1. A. 126

115.

Equity of re-

demption, jnrchase of — Payment — Prior mortgagees,
joyment to — Keeping securities alive — Attachment
of mortgaged j)roperty. One P borrowed from one L
a certain sum upon a mortgage of certain properties.
He subsecjuenth' executed a second mortgage in
respect of some of these properties in favour of one
S. The legal representative of L obtained a decree
on P's mortgage. While steps were being taken for
the execution of that decree, P entered into ne-
gotiations with one E, from whom lie borrowed
R 40,000 to pay off the prior mortgages upon a
mortgage of the properties included in L's mortgage
and other properties, and he promised to take a
reconveyance of the properties and make over the
mortgage-deeds to P. Two days before the mort-
gage to R, one of the properties comprised in R's
mortgage was attached in execution of a money-
decree against P, and subsequently purchased by D.
the defendant No. 2, with notice of P's lien. P
paid off his prior mortgages on the day following
E's mortgage. R having died, his widow instituted
the present suit upon the mortgage, contending that
the property purchased by D was subject to her
claim, he purchasing only the equity of redemption.
X> contended that lie purchased the property free

MORTGAGE— con?(?.

5.; SALE OF MORTGAGED PROPERTY— confii-

(c) Purchasers — contd.
from all encumbrances. The Subordinate Judge
gave effect to the plaintiff's contention, and made
the usual mortgage decree against P and D. Oa
appeal by D :-^Held, that the mere fact that the
mortgagor pays the money to the prior encum-
brancers for his own benefit, namely, with the ob-
ject of getting a reduction in the amount of the
debt, cannot be taken as an indication of an in-
tention on the part of the subsequent mortgagee not
to keep alive the prior securities for his benefit ; and
that it was quite clear from the circumstances of the
present case that, at the time of advancing the
money to P. R intended to keep alive the prior se-
curities for his benefit. Gokcddas Gcpaldas v.
Pvranmal PremsnH Das, I. L. R. 10 Calc. 1035,
relied upon. Held, further, that on the day of at-
tachment of the property purchased by D nothing
more could be attached than the equity of redemp-
tion belonging to P ,• and that, according to the
provisions of s. 276 of;,the Civil Procedure Code,
the subsequent discharge by P of the prior mort-
gages could not enlarge the subject of the attach-
ment, and therefore D purchased only the equity of
redemption in the property. Dixo BAXDHr Shaw
Ckowdhuey v. Nistarini_Dasi 3 C. "W. K". 153

116. — Second mortgage

of property by original mortgagor, and first mort-
gagee paid off — Possession taken by new mortgagee
— Suit for pcssession by plaintiff as purchaser in
execution — Right of purchaser to recover — Right of
second mortgagee to be repaid his advances by plaint-
iff keeping alive the first mortgage. On the 10th
June 1885,\T; mortgaged the property in dispute
to G along with* some other propert}'. In 1886
the plaintiff' obtained a money decree against T, arid
in execution of his decree he caused the property in
dispute to be sold and purchased it himself, obtain-
ing a certificate of sale on the 1st November 1S86.
On the 13th February 1888 T mortgaged the pro-
perty in dispute along with other property to the
defendant and paid off G's mortgage. G thereupon
returned the mortgage-deed to T with a receipt for
payment endorsed. After payment of G's mortgage
the defendant took possession of the property. In
July 1888 T executed a further mortgage of the
property to the defendant for R 8,000. On the
30th August 1888 the plaintiff, having attempted
to take possession, was obstructed by the defendant.
Thereupon the plaintiff brought this suit for pos-
session. Held, that the plaintiff was entitled to
possession. The mortgage to the defendant was sub-
sequent to the plaintiff's purchase of the equity
of redemption. The defendant did not know of
that purchase. He took tlie mortgage from T, to
whom he advanced the money to pay off the previ-
ous mortgage to G. There was nothing to show that
there was a"ny intention to keep G's mortgage alive
in favour of the defendant. Gokaldas Gopaldas v.
Puranmal Premsukhdas, I. L. R. 10 Calc. 1035 :
L. R. 11 I. A. 126, distinguished. Held, also, that,
as the plaintiff was seeking to recover property

8471

DIGEST OF CASES.

( 8472 )

MORTGAGE— co?iiti.

.5. SALE OF MORTGAGED PROPERTY— con^tZ.

(c) Ptjechasers — contd.
which but for the defendant's payment to G would
have been burdened with G's mortgage, and as the
defendant, when he advanced the money to T
to pay off that mortgage, did not know that T was
no longer the owner of the equity of redemption, the
plaintiff should give credit to the defendant for the
sum paid by him ; but as the defendant's mortgage
comprised other properties besides the one _ in
dispute, the plaintiff should recover possession
on payment to the defendant of a proportionate
part of G's mortgage-debt, having regard to the
value of the property in dispute and that of the
other mortgaged properties. MaJiomed Shamsool
HodaY.SheioaJcram,UB.L.R.226 :L.R. 2 I. A.
7, followed. LoMBA Gomaji v. Vishvanath
Amrit Tilvankar . I. L. R. 18 Bom. 86
See Yadao Babaji Suryakao v. Amboo
I. L. R. 21 Bom. 567

117.

Sale

under

second of tivo mortgages — Payment under order of
Court icithout jurisdiction by purchaser to first
mortgagee — Extinguishment of mortgage lien. Where
the former of two mortgagees, to whom a cer-
tain person hypothecates his estates, accejjts from
the auction-purchaser, who buys a portion of the
estates when they are sold on forecolsure of the
second mortgage, a sum of money assessed by a
Civil Court as the equivalent of the former mort-
gagee's prior charge on the estates, no successor of
the former mortgagee can again proceed to sell
up the estates, even though the Court which as-
sessed the money-value of the chai'ge on the estates
may not have had the jurisdiction to do so : for in
accepting the money the former mortgagee re-
leased the estate from all further liability under his
bond. Jankee Pershad v. Ajoodhya Doss

25 W. R. 257

118. Purchase by first

mortgagee after second mortgage — Set-off of first
mortgage against purchase-money — Priority. If the
first mortgagee purchases the property mortgaged
after a second mortgage is created upon it, he does
not thereby lose the benefit of his first mortgage if
the money due under the first mortgage be "set off
against the consideration of the sale. Accordingly,
where a second mortgagee obtained a decree
upon his mortgage subsequently to a sale of the
mortgaged jjroperty to the first mortgagee, who had
been allowed to set off the money due to him on his
mortgage against the consideration, the latter is en-
titled, as against the auction-purchaser at the sale
in execution of the decree, to priority in resard to his
mortgage. Bissen Doss Singh v. Sheo" Pershad
Singh 5 C. L. R. 29

11®- First and second

mortgages — Assignment hy mortgagee — Rights of
assignees. In March 186.5 the proprietors of a cer-
tam share in a certain village mortgaged the share to
R, giving him possession of the share, and stipulat-

M ORT GAG'S— contd.

5. SALE OF MORTGAGED PROPERTY— conii.

(c) Purchasers — contd.
ing that the mortgagee should take the profits of
the share in lieu of interest, and that the mortgage
should be redeemed on payment of the principal
sum without interest. In April 1865 R mortgaged
his rights and interests under the mortgage of March
1865 to S, retaining possession of the share. In
February 1869 the proprietors of the share again
mortgaged it to R for a further loan. Under this
mortgage, R was entitled to take the profits of the
share in lieu of interest, and the mortgage was re-
deemable on payment both of the principal sum due
thereunder and of that due under the mortgage of
March 1865, without interest, or the mortgagors
were entitled to redeem a certain portion of the
share on payment of a proportionate amount of
such sums without interest, on a particular day in
any year. In August 1872 S obtained a decree on
the mortgage of April 1865, directing the sale
of R's rights and interests under the mortgage
of March 1865 in satisfaction of such decree.
In May 1874 R assigned by sale to iV his rights
and interests under the mortgage of February
1869, retaining possesion of the share. In
April 1877, R's rights and interests under the
mortgage of March 1865 were sold in execution of •
the decree of August 1872, and were purchased by S
who obtained possession of the share. Held, in a
suit by N against *S' to obtain possession of the share
in virtue of the ass/gnment of May 1874, that under
the circumstances of the case *S' was entitled as
against N to the possession of the share as first
mortgagee. Sahai Pandey v. Sham Narais
I. L. R. 2 AIL 142

120. First and second

mortgagees — Purchase of mortgaged property by
mortgagee. G, the mortgagee of certain property,
having purchased a portion thereof, sued (i) the
mortgagor ; (ii) P, to whom another portion of such
property had been mortgaged before such property
had been mortgaged to G, and who had purchased
such portion subsequently to the mortgage of such
property to G and G's purchase ; and (iii) M who
had purchased a third portion of such property
subsequently to G\s purchase, for the enforcement
of his lien on such property. Held, by Stuart, C.J.,
Oldfield, J., and Straight, ./. (Pearsox, J., dis-
senting), that, inasmuch as it was the manifest in-
tention of P to keep his incumbrance alive, and for
his benefit to do so, P's purchase did not extinguish
his incumbrance, and he was entitled, as prior in-
cumbrancer, to resist G's claim to bring to sale the
portion of the mortgaged property purchased by
him. Held, also, by Oldfield, J., and Straight, J.
(Pearson, J., dissenting), that G, notwithstanding
he had purchased a portion of the mortgaged pro-
perty, might throw the whole burden of his mort-
gage-debt on the portions of the mortgaged property
in the mortgagor's possession and in J/'s possession,
but he could not have thrown it on the portion of
such property in P's possession. Gaya Prasad v.
Salik Prasad. Gaya Prasad v. Gaya Prasad
I. Ii. R. 3 All. 682

( 8473 )

DIGEST OF CASES.

( 8474 )

UOnTGAGH—contd.

5. SALE OF MORTGAGED PPvOPERTY— con<cZ.

— - First and second

121.

mortgagees — Purchase of mortgaged property by
first mortgngee. The first mortgagee of certain pro-
perty purchased it at an execution-sale. The
second mortgagee of such property subsequently
sued the mortgagor and the first mortgagee to en-
force his mortgage by the sale of such property.
Held, that the first mortgagee was entitled to resist
such sale, by virtue of being the first mortgagee,
until his mortgage-debt M'as satisfied ; and the fact
that he had purchased the property mortgaged to
him did not extinguish his mortgage, which must
be held to subsist for his benefit. Gaya Prasad v.
Salih Prasad, I. L. R. 3 All. 6S2, followed. Har
Prasad v. Bhagwan Das . I. L. R. 4 All. 196

122. - Condition against

alienation — First and second mortgagees — Purchase
by mortgagee of mortgaged property. A transfer of
mortgaged property in breach of a condition
against alienation is valid except in So far as it en-
croaches upon the right of the mortgagee, and, with
this reservation, such a condition does not bind the
property so as to prevent the acquisition of a valid
title by the transferee. Chunni v. Thakur Das.
I. L. B. 1 All. 126; Mai Chand v. Balgohind,
I. L. R. 1 All. 610 ; and Lachmi Narain v.
Koteshar Nath, I. L. E. 2 All. S26, observed on.
A mortgage is not extinguished by the purchase of
the mortgaged property by the mortgagee, but sub-
sists after the purchase, when it is the manifest
intention of the mortgagee to keep the mortgage
alive, or it is for his benefit to do so. Gaija Prasad
V. Salik Prasad, I. L. R. 3 All. 682, and Ramu
Nail-an v. Sv.hharaya Miidali, 7 Mad. 229, followed.
It is not absolutely necessary for the first mortgagee
of property, when suing to enforce his mortgage
to make the second mortgagee a party to the suit.
If the second mortgagee is not made a party to the
suit, he is not bound by the decree which the first
mortgagee may obtain for the sale of the property,
but can redeem the property before it is sold ; but
if he does not redeem, and the property is sold in
execution of the decree, his mortgage will be de-
feated, unless he can show some fraud or collusion
which would entitle him to defeat the first mortgage
or to have it postponed to his own. The ruling
of TuEXER, ./., in Khuh Chand v. Kalian Das,
I. L. R. 1 Mad. 240, followed. In July 1874 a
usufructuary mortgage of certain immoveable
proped-ty was made to D. In July 1875 a portion
of such property was again mortgaged to D. The
instrument of mortgage on this occasion contained
a condition against alienation. In July 1877 the
whole property was mortgaged to N. In October
1877 it was again mortgaged to D. N sued the
mortgagor on his mortgage in July 1877, and on the
29th September 1879 obtained a decree against him
for the sale of the property. In October 1879 the
mortgagor sold the property to D in satisfaction of
his mortgages of July 1895 and October 1877. D
did not offer to redeem A"s mortsace, and on the

MORTGAGE— cori^i.

5. SALE OF MORTGAGED PROPERTY— cow^ci.

(c) Purchasers — contd.
20th November 1880 the property was put up for
sale in execution of iV's decree (Z)'.s objection to the
sale having been previously disallowed) and was
purchased by A. D, who was still in possession
under his mortgage of Julj^ 1874, then sued A for a
declaration of his proprietary right to the property
claiming by virtue of his mortgages and the sale of
October 1879. Held, applying the rules stated
above, that N's mortgage of July 1877 could not
affect D's right under his mortgage of July 1875, but
N took subject to such mortgage ; nor could the
auction-sale of the 20th Novembe'r 1880, which took
place in enforcement of N's mortgage, affect D's
prior mortgages ; therefore the condition against
alienation made in D's favour had no prejudicial
effect on the right of A under his auction-purchase :
that the purchase by D of October 1879 did not ex-
tinguish his prior mortgages, but such mortgages
were still subsisting, and A purchased subject to
them : that there having been no fraud or collusion
on N's part, A. must be held to have purchased sub-
ject only to D's prior mortgages and not subject to
D's mortgage of October 1877. Held, also, that, as
D's purchase of October 1879 was made without N
having had an opportunit3' of redeeming D's prior
mortgage?, B's purchase was subject to A"'s mort-
gage of July 1877, and therefore could not deprive
A of what he had purchased at the auction-sale of
the 20th November 1880. Held, therefore, that all
the relief that D was entitled to was a declaration
that as prior mortgagee under th5 mortgages of
July 1874 and July 1875 he was entitled, as against
A to retain possession of the property until such
mortgages were satisfied. Alt Hasax v Dhiria

I. L. R. 4 AiL 518

123. — First and second

mortgages — Payment by purchaser of mortgaged pro-
perty of first mortgage — Right of purchaser to benefits
of first mortgage — Right of second mortgagee to bring
to sale mortgaged property. The purchasers of the
equity of redemption of land which had been mort-
gaged in 1866 and 1874 to different persons paid off
the prior mortgage. The second mortgagee sued
to bring the property to sale in satisfaction of his
mortgage. Held, that the prior mortgage was not
extinguished, and that the purchasers of the equity
of redemption had, by paying off that mortgage,
acquired an equitable right to its benefits, which
they could use against the second mortgage. Gokal-
das Gofjaldas v. Puranmal Premsukhdas, I. L. R.
10 Calc. 1035, followed. Per Oldfield, J. (Mah-
3IOOI1, J., dissenting), that the prior mortgage
afforded a defence against the claim of the second
mortgagee seeking to bring the property to sale.
Gokaldas Gopnldai v. Puranmal Premsukhdas,
I. L. R. 10 Calc. 1035, followed. Per Mahmood
J., that the ruling of the Privy Council in Gokaldas
Gopaldas v. Puranmal Premsukhdas, I. L. R. 10
Calc. 1035, did not go beyond laying down the pro-
position that when the purchaser of the equity of
redemption pays off a prior mortgage, which carries
with it the right of possession of the mortgaged pro-

( 8475 ;

DIGEST OF CASES.

{ 8476 )

MORTGAGE— cowfi.

5. SALE OF MORTGAGED PROPERTY— con^cZ.

(c) Purchasers — contd.
perty, the mortgage is not extinguished for all pur'
poses, but sach^purchaser, acquiring the benefits o'-
the usufructuary mortgage, is entitled to remain in
possession, and can successfully resist a suit by a
subsequent usufructuary mortgagee seeking to
disturb such possession. Also per Mahmood, J.,
that although the persons who had paid oS the prior
mortgage were entitled to claim its benefits, they
could not be understood to have acquired rights
greater than those which the prior mortgagee him-
self possessed ; that as holders of the equity of re-
demption they could not resist the suit which
aimed at enforcing a valid security, and, as persons
entitled to the benefits of the prior mortgage, they
were at best in the position of assignees of that
mortgage ; that the union of the two capacities
could not confer upon' them rights higher than those
which the mortgage they had paid off created ; that
a puisne incumbrancer is not prevented by the
mere fact of the existence of a prior mortgage from
enforcing his security without paying off the prior
mortgage so long as such enforcement does not clash
with the right secured by the prior mortgage ; and
that therefore the purchaser of the equity of re-
demption held that right subject to the plaintiff's
mortgage of 1874, and the fact of their having re-
deemedi the prior mortgage did not place the equity
of redemption on a better footing, though it en-
titled them to the benefits of that mortgage secured
to them in the same 'manner as^to the original mort-
gagee whose rights they had acquired by subro-
gation. Gaya Prasad v. Salik Prasad, I. L. R. 3
AJl. 6S2 ; Ramu Naikan v. Subharaya Mudali, 7
Mad. 229 ; and Mul Chand Ruber v. Lallu Trikam,
I.^L. R. 6 Bom. 404, referred to. Sirbadh Rai v.
Raghunath Prasad . I. L. R. 7 All. 568
124. First aiul second

viortgages — Payment by purchaser of mortgaged
property of first mortgage — Right of purchaser to
benefits of first mortgage — Right of second mortgagee
to bring to sale mortgaged property — Registered and
unregistered instruments — Optional and compulsory
registration — Act III of 1S77, s. 50. At a sale in
execution of a decree, J purchased certain pro-
perty which was at that time subject to two mort-
gages— the first under an unregistered deed in
favour of M and dated in 1872, and the second
under a registered deed in favour of L and dated in
1880. The registration of both deeds was optional,
the former under Act VIII of 1871 and the latter
under Act III of 1877. J subsequently satisfied
the mortgage under the registered deed of 1880,
which was delivered to him. M then brought
a suit to recover the money due to him under the
mortgage-deed of 1872 by sale of the mortgaged
property. ^Held, by Oldfield, J., that, applying
the rule laid down by the Privy Council in Gokaldas
Oopaldas v. Puranmal Premsuklula^, I. L. R. 10
Calc. 1036, J, having paid off the mortgage under
the registered deed of 1880, should have the benefits
of that mortgage, and was entitled to set up the

MORTGAGE— coH<ci.

5. SALE OF MORTGAGED PROPERTY— co?i<i.

(c) Purchasers — contd.
deed which he held against the unregistered deed of
1872, against which, under s. 50 of the Registration
Act (III of 1877), it would take effect, as regards
the property comprised in it. Lachman Das v.
Dip Chand, I. L. R. 2 All. 851, referred to. Per
Mahmood, J., that the word " unregistered " in
s. 50 of the Registration Act must, in reference to
the circumstances of the present case, be read as
" not registered under Act VIII of 1871," and that
so reading the section, the registered mortgage-deed
of 1880 was entitled to priority over the unre-
gistered mortgage-deed of 1872. Lachman Das v.
Dip Chand, I. L. R. 2 All. 851, and Sri Ram v.
Bhagirath Lai, I. L. R. 4 All. 227, distinguished.
Also per Mahjiood, J., that the position of J by
reason of his having'paid off the registered mortgage
of 1880 could at best be that of an assignee of that
mortgage having priority over the mortgage-deed
on which the plaintiff was suing ; that such priority
could not enable him to place the equity of redemp-
tion upon a higher footing than it would have been
had he not paid off the registered mortgage of 1880 ;
and that, as a consequence, the sale of the property
in enforcement of the mortgage of 1872 should be
allowed to take placelbut subject to the rights of •
priority which J had acquired by reason of his hav-
ing paid off the registered mortgage of 1880. Sir-
badh Rai v. Raghunath Prasad, 1. L. R. 7 All. 568 ;
and Gokaldas Gopaldas v. Puranmal Premsukhdas,
I. L. R. 10 Calc. 26'J,5, referred to. Janki Prasad
V. Mautangui Debia . . I. L. R. 7 AIL 577

125.

First and

mortgages — Payment by purchaser of mortgage!
property of first mortgage — Right of second mortgagee
to bring to sale mortgaged property subject to first
mortgage. In 1874 a plot of land No. Ill, which in
1868 had been mortgaged to L. was with other pro-
perty mortgaged to R. In 1878 the equity of re-
demption in plot No. ] U was purchased by J, who
paid off the mortgage of 1868. R brought a suit
against J to bring to sale the whole of the property
included in the mortgage of 1874. The Court of
first instance decreed the claim in part exempting
from the decree plot No. 1 1 1, on the ground that the
defendant, by reason of having purchased the
equity of redemption in that plot and having paid
off the mortgage of 1866, stood in the position of a
first mortgagee of that plot, and his mortgage had
priority over the plaintiff's mortgage of 1874. The
Full Bench modified the decree of the Court of
first instance by inserting after the words " land
No. Ill be exempted from the hypothecation lien "
the words " in that property the interest of the
plaintiff as second mortgagee only to be sold,"
Per Oldfield, J., that the second mortgagee could
not bring the land to sale so as to oust the first
mortgagee, whose mortgage was usufructuary, and
get rid of the first mortgage without satisfying it ;
but that he had a right to sell such interest as he
possessed as second mortgagee. Per Straight, J.,
that the plaintiff was entitled to bring to sale the

( 8477 3

DIGEST OF CASES.

( 8478

MORTGAGE— coji^ci.

5. SALE OF MORTGAGED PROPERTY— cojiid.

(c) Ptjechaseks — contd.
I)roperty charged to him under his mortgage of
1S74 subject to the rights existing in favour of the
first mortgagee of 1S66 : in other words, that a
purchaser at a sale in execution of the decree would
have no further right than a right to take the pro-
perty subject to the right of the first mortgagee to
possession of the property included in his instru-
ment, and his other rights under that instrument,
so long as it enured. Raghunath Prasad v.
JUEAWAN Rai . . . I. L. R. 8 All. 105

126 Suit hy mortgagee

purchasing part of property — Sale hy first mortgagee
in execution of decree upon secoul mortgage held by
him — Interest acquired hy purchaser at such sale —
Sale of portions of mortgaged property — Mortgagee
not compelled to proceed first against unsold portions
— Enforcement of mortgage against purchaser not hav-
ing obtained possession. At a sale in execution of a
decree for enforcement of a hypothecation-bond,
the decree-holder, by permission of the executing
Court, made bids, but the property was purchased
by another. At that time the decree-holder held a
prior registered incumbrance which he did not
personally announce. In a suit brought by him
subsequently to enforce this incumbrance : — Held,
that it could not be said that under the circum-
stances the plaintiS must be taken to have sold, in
execution of his decree, the interest which he held
under the bond now in suit ; that he could not be
compelled to proceed first against those portions
of the mortgaged property which had not been sold ;
and that the bond was enforceable against a pur-
chaser of part of the mortgaged property who had
never obtained possession. BA^■^VAEI Das v.
Muhammad Mashiat . I. L. R. 9 All. 690

127.

Sale of equity of

redemption — Suit by mortgagee for sale of mort
gaged property — Purchaser not a party to suit —
Sale of mortgaged property in execution of decree
obtained hy mortgagee — What passed — Bight of
purchaser of equity of redemption — Eedemption.
On the 21st December 1871, three of the defendants
in this suit mortgaged four groves to U. In 1872
the plaintiffs obtained a money-decree against one
D, and in August 1872, in execution of that decree,
sold the said groves, and at the sale purchased them
and also two mills which were not in dispute in this
suit. The decree against D had been found to
have the same eliect as if it were had and obtained
against all the mortgagors. Of this sale U had
notice ; in fact, he opposed it. Subsequently H, the
mortgagee, sued the mortgagors on their mortgage,
and obtained a decree on it, and under the decree
brought the said groves to sale in 1877, and pur-
chased them himself. In May ISSO H sold the
groves to two of the defendants. The plaintiffs,
who were not parties to the suit which resulted in
the decree under which the groves were sold in
1877, instituted this suit for possession of the
groves. Held, that, notwithstanding the sale of
1872, what was sold under the decree of 1877 was

MORTGAGE— conid.

5. SALE OF MORTGAGED PROPERTY— cooici.

(c) Purchasers — contd.
the right, title, and interest of the mortgagors, as
they existed at the date of the mortgage of 21st
December 1871, with which would go the rights and
interest of the mortgagee ; and although at a sale
under a decree for sale by a mortgagee the right,
title, and interest of the mortgagor, which is sold is
his right, title, and interest at the date of the mort-
gage, and any right, title, and interest he may have
acquired between the date of mortgage and of the
sale, still any puisne incumbrancer or purchaser
from the mortgagor prior to the date of the mort-
gagee's decree, and who was not a party to the suit
in which the mortgagee obtained his decree, would
have the right to redeem the property which the
mortgagor would have had but for the decree*
This view is consistent with the principles of equity
and recognized by the Transfer of Property Act.
Muhammad Sami-ud-din v. 2Ian Singh, I. L. B. 9
All. 125, followed. Gajadhar v. Mrx Chaxd

I. L. R. 10 AIL 520

128.

Sale in execu-

tion of decree of mortgaged land — Purchase of equity
of redemption by decree-holder under s. 294 of the
Code of Civil Procedure — Execution of decree in
respect of balance — Nature of price paid by pur-
chaser on the purchase of the equity of redemption.
A mortgaged certain land to B, but remained in
possession thereof. Subsequently A sold a portion
of the said land to C in consideration of her
paying off the mortgage-debt due to B. 0
entered into possession, but was unable to satisfy
the debt. C died, and A sued C's daughter and
legal representative for damages sustained by
him from the non-payment of the purchase-
money by C. A obtained a decree, and, the
money not being paid as therein decreed, applied
for execution and brought to sale the equity
of redemption vested in C by virtue of the sale.
By leave of the Court A bid at the Court sale and
bought the right of redemption and recovered
back possession of the land sold to C. Subsequently
he again applied for execution of the decree in
respect of the balance by attachment of certain
moveable property, and contended that he was
bound to give the defendant credit only for the
price which he actually paid at the Court-sale
for the equity of redemption. The defendant con-
tended that .4 was bound to give credit for the full
value of the land under mortgage. Held, that, hav-
ing obtained leave of the Court to bid under s. 294
of the Code of Civil Procedure, A's position was
that of an independent purchaser, and that the
price, which an independent purchaser must be
taken to pay when he buys proj^erty under mort-
gage for a cash payment made to the mortgagor on
account of his equity of redemption, is the cash
payment for the equity of redemption plws the
debt, «.■«., the amount undertaken to be paid to the
mortgagee, and that for these amounts .4 was
bound to give credit. Krishxasami Ayyae v.
Jaxakiammal . . I. L. R. 18 Mad. 153

( 8479 )

DIGEST OF CASES.

( 848U I

MORTGA GE—eontd.

MORTGAGE— con^rf.

5. SALE OF MORTGAGED PROPERTY— con^rf. 5. SALE OF MORTGAGED PROPERTY— coniti.

129 Purchase of

equity of redemption by subsequent mortgagee —
Priority of mortgage — Merger of former mortgage
in decree — Right of subsequent inortgagee to keep
the prior incu7nbra7ice alive — Intention. Where
there is a subsisting prior incumbrance, and a sub-
sequent mortgagee advances money for the pur-
pose of discharging it, but it is for his benefit still to
keep it alive, his right to keep it alive is not affected
by the fact that the prior incumbrance had at the
time taken the form of a decree. Adams v. Angell,
L. E. 5 Ch. D. 645, followed. Puenamal Chund
V. Venkata Subbarayuld I. L. E. 20 Mad. 486

130.

Scde in execution

of mortgage-decree — Sale-certificate — Confirmation of
sale — Salt for arrears of Government revenue —
CivU Procedure Code (Act XIV of 18S2), s. 316—
Act XI of 1859, ss. 13, 14, 54— Transfer of Property
Act [Act IV of 1SS2), s. 73. D, having obtained
a decree on a mortgage of a 5|-anna share of an
estate paying revenue to Government, caused the
share to be put up for sale in execution of that de-
cree on the 17th August 1883, and purchased it her-
self. The sale- was not confirmed till the 18th
September 1883. In the meantime a 14-anna
share of the estate, including the 5i-anna share
which was separately liable for its own share of
Government revenue, was on the 26th September
1S83 sold for arrears of the June kist of Government
revenue under s. 13, Act XI of 1859, and purchased
by one G, who sold it again to P, who obtained
possession on the 6th August 1884. In a suit by D
against P and the judgment-debtor to obtain pos-
session of the 5i-anna share so purchased by her : —
Held, that the mortgage-debt was not extinguished,
nor the mortgage merged in the decree of the 17th
August 1883, but having regard to the provisions of
s. 316 of the Code of Civil Procedure, the mort-
gagee's rights were kept alive and remained in
existence until the property vested in her by virtue
of the granting of the sale-certificate, and that be-
tween the date of the sale, 17th August 1883, and
the date of its confirmation, 18th December 1883,
the mortgage lien was fully preserved ; that P's
purchase being governed by s. 54 of Act XI of
1859, he acquired the share subject to all encum-
brances, including the mortgage lien of D ; that
s. 73 of the Transfer of Properly Act does not in
such a case deprive a mortgagee of his lien over the
property and confine him to proceeding against the
surplus sale-proceeds ; that as the judgment-debtor
had the right, at any time between the" 17th August
1883 and the 18th "December 1883, to redeem the
property upon payment of principal, interest, and
costs to D, P, having acquired the rights of the
judgment-debtor by virtue of his purchase on the
26th September 1883, was equally entitled to re-
deem between that date and the 18th December
1883, but, not having availed himself of that right,
the property became absolutely vested in D onlhe
18th December 1883, and that consequently D was

131- — -— Mortgagedland

subsequently sold by mortgagee in execution of a
money-decree— Purchaser at such sale ivithout
notice of mortgage— Mortgagee estopped from sub-
sequently €7iforcing his mortgage as against pur-
chaser— Fraudulent concealment of lien — Regis-
tration not equivalent to notice in case of fraud

Civil Procedure Code (VIII of 1859), s. 213.
Where a judgment-creditor in execution of a money
decree sells proj^erty as belonging to his judgment-
debtor, he is afterwards estopped from enforcing,
as against the purchaser, a previous mortgage of the
property which has been created in his own favour,
but of which he has given no notice at the time of
the sale, and in ignorance of which the purchaser
has bid for the property and paid the full price.
This principle applies even though the mortgage-
deed has been registered. In 1867 R and G mort-
gaged certain lands to G i? by a registered deed
of that date. In 1870 G R obtained a money-
decree against R and G, and in execution put up the
mortgaged land for sale. The plaintiff purchased it -
without notice of the mortgage, and in February
1872 obtained possession through the Court. In the
meantime, G R brought another suit upon his
mortgage against his mortgagors. He obtained a
decree, and in April 1872 ejected the plaintiff and
obtained possession. In 1883 the plaintiff filed the
present stiit against R, G, and G R to recover the
lands. Held, that the plaintiff was entitled to re-
cover. G R (the mortgagee), when bringing the
land to sale in execution of his decree, was bound
by s. 213 of the Civil Procedure Code (VIII of
1859) to disclose the limited interest of his judg-
ment-debtors in it. By concealing his lien he had
induced the plaintiff to pay full value for the pro-
perty, and he could not therefore retain his lien.
By his omission he was estopped from disputing
the plaintiff's title. The rule, that registration
of a mortgage amounts to notice to all subsequent
purchasers of the same property, does not apply
to a case where there has been a fraudulent con-
cealment by a judgment-creditor of the extent of
his judgment-debtor's interest in the property
brought by the judgment-creditor to sale. Agar-

CHAND GUMAA-CHAND V. RaKHMA HaX.MAXT

I. li. E. 12 Bom. 678

132. Subsequent sale

by mortgagor of a part of the property mortgaged
— Suit on the mortgage — Satisfaction of the decree
in such suit partly by a second mortgage — Suit on
second mortgage and. decree for sale — Title of the
purchaser at sale in execution of such decree as
against the private prior purchaser of the part —
Merger. On the 4th October 1864 N mortgaged,
without possession, a house to K. On the 25th
June 1868 N sold the eastern half of that house to
the defendant, who forthwith entered into posses-
sion. K sued N upon the mortgage, and obtained

( 8481 )

DIGEST OF CASES.

( 8482 )

MORTGAGE— conftf.

6. SALE OF MORTGAGED PROPERTY— con<ci.

(c) Pttrchasers— confci.
a decree on the 28th November 1868. N made
certain payments to K under the decree until 1875.
On the 27th July 1875 N passed to K an instalment
bond for the balance due on the decree, together
with R25 on account of savai profits, and as security
executed a new mortgage of the house. Satisfac-
tion of the decree was entered up and certified, and
the new mortgage-bond registered. In 1882 K
sued N upon this mortgage-bond and obtained a
decree directing the debt to be realized by the sale
of the mortgaged house, and on the 20th July 1883
the plaintiii purchased the house at the execution-
sale. In 1885 the plaintiff sued to recover the
eastern half of the house which was in the posses-
sion of the defendant. The lower Courts rejected
the plaintiff's claim. On appeal by the plaintiff to
the High Court : — Held, confirming the decree of
the lower Courts, that the plaintiff, by his purchase
in July 1883, did not acquire a title paramount to
that of the defendant. All rights under the mort-
gage of 1864 had merged in the decree obtained in
November 1868, but satisfaction of that decree has
been entered up and certified when? the second
mortgage of 1882 was passed. The mere circum-
stance that the debt secured by the second mort-
gage was the balance of the old debt was not suffi-
cient to justify the inference that it was intended to
keep the decree alive. There were therefore no
rights under the old mortgage which the plaintiff
could assert as against the defendant in possession.
Ramkrishna Sadashiv v. Chothmal

I. li. R. 13 Bom. 348

133.

Purchase by a

mortgagor at a judicial sale of interest under
second mortgage — Eights against the mortgagor of
purchaser at a sale in execution of a consent decree
upon the first mortgage. The same property, with
other, was mortgaged, first to one mortgagee and
secondly to another. Decrees were obtained upon
both mortgages : the terms of the first decree giv-
ing effect to a compromise between the mortgagor
and the first mortgagee. Sales in execution follow-
ed ; but before the sale under the decree upon the
first mortgage was effected, the sale under the de-
cree upon the second took place, the possession re-
maining with the purchaser at the first sale, who was
acting benami for the mortgagor. At the subse-
quent sale under the decree upon the first mort-
gage, the plaintiff purchased, and now sued for
possession. The High Court decided that the
plaintiff was entitled to the first mortgage lien
in consequence of his purchase at the second sale ;
and, all persons interested in the matter beingT be-
fore the Court, that the proper course was to direct
an inquiry as to how much of the mortgage-debt
was chargeable upon that portion of the property
which formed the subject of the appeal ; and to
direct that so much of the mortgage-debt should
be realized by the sale of that property. Held, that
this judgment incorrectly treated the plaintiff as
mortgagee, refusing him a charge for the full '

VOL. Ill,

MORTGAGE— coH^ci.

5. SALE OF MORTGAGED PROPERTY— cow^cf.

amount of his purchase-money. The case depend-
ing upon its own circumstances, it would be con-
trary to equity to allow the mortgagor to set up
any right to possession as required by his purchase ;
and that the plaintiff as against him was entitled
to a decree for possession as purchaser. Lutf Ali
Khan v. Futteh Bahadur . I. L. R. 17 Calc. 23
li. R. 16 I. A. 129

134. Purchaser of

mortgagor's interest — Redemption — Successive mort-
gages on family property — Assignment of equity
I of redemption. Two brothers constituted an undi-
I vided Hindu family. The eldest mortgaged half of
' certain family lands to P and the other half to the
father (since deceased) of the contending defendants,
: and placed the mortgagees respectively in possession.
Neither mortgage was binding on the younger
! brother, who mortgaged his share of the same land
to the plaintiff. The plaintiff obtained a decree on
, his mortgage and attached and brought to sale in
execution and himself purchased thehalf share of
his mortgagor, and having afterwai-ds purchased
the share of the elder brother and come to a settle-
ment with P, now brought a suit for a moiety of the
land in the possession of the contending defendants
as forming part of the half share of his mortgagor.
j Held, that the plaintiff, being the assignee of "the
I elder brother, could not deprive liis mortgagees of a
portion of tlieir security without asking" for an
j account and offering to pay whatever might be
I due on the footing of the mortgage. Subbarazu v.
j Venkataratnam . . I. ii. R. 15 Mad. 234

I 135. IntireM acquired

by purchaser — Previous sale in execution of a money-
decree — Suit to recover possession by mortgagee pur-
I chaser — Right of previous purchaser to redeem. A
j purchaser at a sale in execution of a decree on a
I mortgage acquires the estate of the mortfrafror as it
i existed when he executed the mortgage. ° K and
j others mortgaged a certain property to D A and V.
Subsequently to the mortgage, the property was
sold in execution of a money-decree, and was pur-
chased hy D R and others, who were put in posses-
sion. Afterwards D A and I' upon their mortgage
obtained a decree to which D R and others,°the
purchasers under the money-decree, were not made
parties. In execution of the mortgage -decree,
the property was purchased by D A, to whom
symbolical possession was given. In a suit brought
hy D A against D R and others to recover actual
possession : — Held, that D R and others were entitl-
ed to have an opportunity of redeeming the property
from D A. Held, further, that, had D R and others
been made parties to the mortgage-suit, they would
have been entitled to redeem on payment "of what
was then due on the mortgage, and that therefore
these were the terms on which they must now be
allowed to redeem. Dadoba Arjun.ii v. Damodab
Raghunath . . I. L. R. 16 Bom, 486

136. iiig]it of—Re-

demption and terms on which redemption is allowed

12 0

( 8483 )

DIGEST OF CASES.

( 8484 )

MORTGAGE— co/i«fi.

5. SALE OF MORTGAGED PROPERTY— conf(?.

Person not parties to suit on mortgage. A mort-
gaged lands X, Y and Z to B for R5,000. Lands X
and Y were sold and the proceeds applied to-
wards the discharge of the mortgage. Land Z
was sold to C for R990, which was not so applied.
C transferred his rights to the present defendants,
B brought a suit on the mortgage joining A and C,
but not C's transferees as defendants. C did not
appear, and a decree was passed by consent for
R 1,050, and land Z was brought to sale and pur-
chased for R270 by the plaintiff, who now sued
the defendants separately for possession. Held,
that the defendants, not having been joined in the
previous suit, were entitled to redeem on payment
of R 1,150 and interest Sivathi Odayan v. Rama-
suBBAYYAK . . . I. L. R. 21 Mad. 64

137. Mortgage of

joint property — Subsequent viortgage of unascer-
tained, shares — Partition — Rights of purchasers in
execution of decrees of the two mortgages — Forni of
decree. Joint property belonging to an undivided
Hindu family constituted of five branches was mort-
gaged to A in 1876, and the share of one branch was
mortgaged to B in 1880. A partition took place
in 1881 when the mortgagors of B had their share
allotted to them. In 1888 A sued on his mortgage
not joining B as a defendant, and obtained a decree,
in execution of which he brought to sale the pro-
perty comprised in his mortgage and purchased it in
September 1889. In 1889 B sued on his mortgage
not joining A as a defendant, and obtained a decree,
in execution of which he brought his mortgagor's
share to sale and purchased it and obtained posses-
sion in August 1889. A, in taking possession of the
property purchased by him, was obstruct'ed by B,
but an order was made in his favour. B now sued
for the cancellation of this order and for an injunc-
tion restraining A from taking possession of the
property from him. The lower Courts decreed
that the plaintiff might redeem the land on pay-
ment of one-fifth of the amount of the defendant's
decree. The defendant appealed against this de-
cree, the plaintifE taking no objections to it. Held,
on second appeal, that the decree was wrong, and
that a decree as asked for by the plaintiff 'should be
substituted for it. Such decree, however, was not
to afiect the right of the plaintiff to sue for redemp-
tion ; norj'of the defendant to enforce his rights as
prior mortgagee. V enhatanarasammah v. Bamiah,
I. L. R. 2 Mad. 108 ; Nanach Chand v. Teluckdye,
I. L. R. 5 Calc. 265 ; and Dirgopal Lai v. Bolakee,
I. L. R. 5 Calc. 269, referred to. Ramanadhan
Chetti v. A1.K0NDA PiLLAi I. L. R. 18 Mad. 500

MORTGAGE— co««(i.

5. SALE OF MORTGAGED PROPERTY— eoft<(i.

(c) Purchasers — contd.
In October 1887 the plaintiff purchased certain lands
at a sale held in execution of a decree passed on
an unregistered mortgage effected in 1862. The
defendant was in possession as mortgagee under a
subsequent registered mortgage of 1867. He was
not a party to the suit and decree of 1827. The
plaintiff sued for possession. The defendant claim-
ed that the plaintiff could not recover possession
without paying off his (the defendant'. s) claim.
Held, that at the execution sale the plaintiff bought
the property in dispute free from all subsequent in-
cumbrances, subject only to the right of the de-
fendant, if he so desired, to retain possession. Held,
also, that the plaintiff as purchaser stood in the place
of the prior mortgagee and had a right to possession ;
that the defendant as subsequent mortgagee could
not compel the plaintiff to pay off' his (the defend-
ant's) mortgage, but that the defendant, not
having been a party to the suit on the prior mort-
gage, had a right, if he wished to retain possession,
to pay off the" plaintiff's claim. Mohan Manor v.
Togu Uka, I. L. R. 10 Bom. 224, referred to and
followed. Desai Lallubhai Jethabhai v. Mun-
DAS KuBERDAS . . I. L. R. 20 Bom. 390

139. — Purchase by

138.

Sale in execu-

tion of decree on prior unregistered mortgage —
Right of qmrchaser — Claim of subsequent mortgagee
in possession under registered mortgage — Rights of
such subsequent mortgagee where he was not a party
to the suit on prior mortgage — Right of redemption
—Transfer of Property Act {IV of 18S2), s. 75.

first mortgagee — Right of, as against a subsequent
one. A prior mortgagee, having jjurchased, may
still use his mortgage as a shield against the claims
of subsequent mortgages. Ramu Natkan v.
SuBBARAYA MuDAi.i '' .' . . 7 Mad. 229

140. — ■ Sale subject to

mortgage — Prior mortgage redeemed — Liability of
purchaser. S mortgaged his land to B in 1875,
then to j¥ in 1879, and then .sold it to K in order
to pay off the mortgage to B. The purchase-money
was joaid to B, but K took no steps to keep 5's
mortgage outstanding. Held, th^t K could not
use B's mortgage as a shield against M. KEiSHlfA
Reddi v. Muttu Narayana Reddi

I. L. R. 7 Mad. 127

141.

Bond fide pur-

chase of property subject to mortgage without notice
A, after mortgaging his property to B, conveyed
it by sale as unincumbered to C, who took proceed-
ings against the mortgagor, A, and obtained a de-
cree for possession. Meantime B brought a suit
upon his mortgage, and obtained a decree undei
which he sold the property to D. B then sued D
for possession. Held, that the Judge was right in
finding that the defendant, being a bond fide pur-
chaser for value without notice, was entitled to hold
the property as against the plaintiff. Mahomed
AsHRUP V. Kureemoodeen . 24 W. R. 468

142. Purchase of

equity of redemption by first mortgagee — Priority

Notice— Merger. On the 20th of August 1870

M, the owner of a house in Gujarat, mortgaged it
to the defendant's father with possession. On the
2nd of December 1871 he made a san-mortgage of
the same house to the plaintiff. On the 20th of

( 8485 )

DIGEST OF CASES.

( 848G )

MORTGAGE— fo?i?£Z.

MORTGA GE —contd.

5. SALE OF MORTGAGED PROPERTY— co?i/f?. 5. SALE OF MORTGAGED PROPERTY— conttf.

(c) Purchasers — contd.
April 1S72 M sold the equity of redemption to the
defendant's father, who became the purchaser with-
out cancelling his first mortgage. The plaintiff
subsequently sued M to enforce his san-mortgage,
and, obtaining a decree, placed an attachment on
the house, which attachment, however, was re-
moved on the apj^lication of the defendants' father.
The plaintiff now sued to establish his right to levy
the amount due on his san-mortgage. He claimed
priority to the defendant on the authorit}^ of Tovl-
min V. Sieere, 3 Mer. 210, where it was held that a
purchaser of the equity of redemption could not set
up a prior mortgage of his own against subsequent
incumbrances of which he had notice. Held, that,
the intention of the defendant's father when pur-
chasing the equity of redemption having been to
retain the benefit of all his rights, his son, the de-
fendant, might properly require the redemption of
his iirst mortgage as the condition of the plaintiff's
enforcing the decree upon his mortgage against the
property. A mortgagee purchasinK the equity of
redemption may indicate his intention to keep his
charge upon the property alive otherwise than by
express words. Per West, J. — The successive
charges created by tlie owner of an estate may be
regarded as fractions of the ownership, which em-
braces the aggregate of advantages that can be
drawn from it. Each charge in its turn constitutes
a deduction from the original aggregate, and the
nominal ownership may itself then be reduced to a
small fraction of what it once was. Still, be it
small or great, it is a possible object of sale or pur-
chase, and there is no ground or reason for saying
that an incumbrancer who is already owner of one
fraction of the property may not buy thi^ other frac-
tion without forfeiting the former fraction in favour
-of other fractional owners in the remainder left after
deduction of his prior share. Mulchand Kuber v.
Lallu Teikam . . I. li. R. 6 Bom. 404

143. Revival of lien

— Priority of lien among mortgagees. Where an
•estate had been mortgaged in 1863, and a second
mortgage to the same person in 18G7 had resulted in
a re-adjustment of the old debt, under which the old
mortgage had determined, but the original re-
lations between mortgagor and mortgagee had been
renewed ; and where a fresh lien had been created on
the same property by a new mortgage in 1804 to a
third person, who also entered upon possession of
the said property on a zur-i-peshgi lease, and who,
on the sale of he property, sought to set aside the
lien of the first mortgagee : — Held, that the first and
•econd mortgagee.'; were entitled to priority in the
following order : first, the first mortgagee for tlie
amount outstanding from the first mortgage of
1863, and revived in the second mortgage of 1867 ;
second, the second mortgagee for the amount sti-
pulated in the mortgage of 1.S64 ; third, the first
mortgagee for the residue (if any) after satisfying
the above-mentioned claim of first mortgage ;
fourth and lastly, the second mortgagee for any

(c) Purchasers — cojiid.
residue. Held, also, that, having failed to call fou
restricted proof of the fairness of the first mort-
gagee's claims in the Court below, the second mort-
gagee could not urge in appeal that fair considera-
tion had not been received. Held, also, that the
second mortgagee, having enjoyed possession of the
estate under the ^ui-i-peshgi lease, was not
entitled to interest on the amount decreed.
WosEEUN V. Byjnath Sinoh . 25 "W. R. 171

144. Possession under mort-
gage— priority of mortgagee with possession. As
a general rule, by Hindu law, a mortgagee in
possession is entitled to have his claim satisfied in
preference to the claim of the holder of a mortgage
of prior date unaccompanied by possession. Hari
Ramchandra v. Mahadaji Vishxu

8 Bom. A. C. 50

There are cases, however, which the Courts treat
as exceptions to that general rule. Thus, where a
prior mortgagee sued to recover possession of cer-
tain mortgaged premises from the mortgagor, and
before judgment was given in that suit a subsequent
mortgagee filed another suit against the mortgagor
and obtained judgment, under which possession was
made over to him (the subsequent mortgagee), it
^fas held that possession so obtained pending the
earlier suit would not avail to give the subsequent
mortgagee priority over the prior mortgasee.
Krishnappa valad Mahadappa '•. Bahiru
Yadavrw ... 8 Bom. A. C. 55

145.

- Registration of
is, when rcgis-

rrtortgage-deed. A mortgage-deed

tpred, valid without possession. Balaji Nabayax

KOLATKAR V RaMCHANDRA GaNESH KeI-KAR

11 Bom. 37

146.

-Rights

Lfiw in Quzerat

nd -puisne mortgagee': — Pur-

of pri
closer of equity of redemption int'' notice of incum-
brances. The rule of Hindu law that a mortgage
with possession takes precedence of a mortgage of a
prior date, but unaccompanied by possession, does
not apply to Guzerat. Where in Guzerat the de-
fendant, a puisne mortgagee in possession, had
notice of plaintifl's prior mortgasre, the defendant
was held not entitled to claim the benefit of the
above rule of Hindu law. Registration could not of
itself alter this rule of Hindu law except so far as
effect may be given to it by statute, and registration
secures the same object which the Hindu law in-
tended to secure by reijuiring possession, viz., notice
to subsequent incumbrancers of the existence of a
prior incumbrancer. The purchaser of an equity of
redemption, with notice of subsequent incumbrance!,
stands in the same situation, as regards such sub-
sequent incumbrances, as if he had been himself the
mortgagor : he cannot set up against such subse-
quent incumbrances either a prior mortgage of his
own or a mortgage which he or the mortgagor m^v
have got in. Itcharam Dayaram v. Raiji Jag a.

11 Bom. 4i

12o2

8487 )

DIGEST OF CASES.

( 8488 )

MOETGAGE— con<(i.

MORTGAGE— cow<rf.

5. SALE OF MORTGAGED PROPERTY— cowirf. \ 5. SALE OF MORTGAGED PROPERTY— <;on<ci.

147.

Subsequent pur-

chase. The mortgagee without possession of certain
lands in the Dekkan (under a mortgage-deed of the
1st of August 1864), on the 16th of' April 1867, ob-
tained a decree awarding to him possession of the
mortgaged premises. On the 11th of July following
tlie mortgagor sold the mortgaged premises to the
plaintiff, who had distinct notice of the mortgage.
The deed of sale was duly registered. The plaintiff
thcreupon'claimed to hold the premises free from
the mortgage. Held, that, though a mortgage in the
Dekkan must be accompanied by possession to give
it validity against third parties, it is not absolutely
void for want of such possession, and that the plaint-
iff, having notice of it, should not be allowed to hold
the premises free from the mortgage. Gopal Ya-
I) vvRAV Keskar v. Krishnappa bin Mahadappa
7 Bom. A. C, 60
See Chintaman Bhaskar v. Shivram Hari

9 Bom. 304

148

Purchase hy

mortgagee in

of the pro-

mortgagee — Priority. Held, that a
possession, who also became purch
perty for tlie amount secured by the mortgage under
a deed of sale which was neither stamped nor re-
gistered, could fall back upon his mortgage and re-
cover the amount thereof, in preference to a subse-
quent purchaser of the same property whose deed of
sale was both stamped and registered. Hirachand
Babaji v. Bhaskar Ababhat Shende 2 Bom. 198

149.

Possession of

second mortgagees.

t itle-deeds — Priority — Bights of

— The mere possession of the title-deeds by a second
mortgagee, though a purchaser for value without
notice, will not give him priority. There must be
some act or default of the first mortgagee to have
this effect. Somasundaba Tambiran v. Sakkarai
Pattan . . . . .4 Mad. 369

150.

Decree for pos-

session— Sale in ezecvtion of money-decree — Priority
— Estoppel. Plaintiff claimed under a mortgage,
dated the 27th November 1871, for R50, which
was neither registered nor accompanied with pos-
session. Defendant claimed under a mortgage,
dated the 17th March 1873, for R150, which was
both registered and accompanied with possession.
Defendant had no notice, express or constructive, of
the plaintiff's previous mortgage. In 1873 plaint-
iff sued the mortgagor for a money-claim uncon-
nected with the mortgage, and on the 20th February
1874 obtained a decree for RIOO. In execution of
this money-decree, the mortgaged property was
attached and sold by the Court at the plaintiff's
instance, the defendant becoming the purchaser for
R86 on the 17th September 1874^ An unregistered
certificate of the Court's sale, bearing date the 29th
October 1874, was issued to defendant. In 1874
l)laintiff brought a suit on his mortgage (to which
suit defendant was not a party), and obtained a

(c) Purchasers — contd.
decree (the date of which did not appear in evi-
dence) for possession of the mortgaged property
against the mortgagor. In endeavouring to enforce
that decree, plaintiff was obstructed by defendant
on the 15th January 1875. Held, that, if it was-
subsequent to the Court's sale of the mort-
property to defendant on the 17th Septem-
ber 1874, the decree for possession was valueless, as-
neither the title to, nor the possession of, the mort-
gaged property was then vested in the mortgagor.
Held, further, that, as defendant had no notice of
the plaintiff's mortgage when plaintiff caused the-
Court's sale to be made under his money-decree, or
that the sale was made subject to the plaintiff's
mortgage, it was incumbent on plaintiffs as such
money judgment-creditor, to inform defendant,
when bidding for the right, title, and interest of the
judgment-debtor in the mortgaged property, that
the judgment-creditor (i)laintiff) held a mortgage
on the same property, and intended to enforce it,
especially as the mortgage was neither registered nor
accompanied wdth possession ; and that the plaintiff,
having omitted so to inform the defendant, was es-
topped from enforcing his own mortgage against the
defendant. Itcharam Dayaram v. Eaiji Jaga, 11 '
Bom. 41, distinguislied. Tukaram bin Atmabam
V. Ramchandra Budharam I. L. R. 1 Bom. 314

151. Mortgage icith-

out title — Priority of mortgagee's right. P and
his i^artners mortgaged certain immoveable pro-
perty to plaintiff on the 11th October 1869. They
had then no title to the property, but they
subsequently acquired one by purchase on the
29th June 1871. On plaintiff demanding that P
and his partners should make good the contract of
mortgage out of the interest they had acquired, the
matter was referred to arbitrators, who, on the 26th
December 1831, made an award empowering plaint-
iff to sell the mortgaged property in satisfaction of
his debt. The award was presented in Court by
plaintiff on the 23rd Januarv 1874, and was filed
by the Court on the 23rd February 1874. Mean-
while on the 14th February 1874 the property was
attached in execution of a money-decree obtained
by a creditor of P and his partners against them.
On the 15th April 1874 it was sold by auction and '
purchased by defendant. In a suit brought by plaint-
iff' to recover possession of the property, both the
lower Courts rejected his claim, on the ground that P
and his partners had no right to the property when
they mortgaged it to plaintiff. Held, by the High
Court on second appeal, reversing the decrees of the
lower Court, that the defendant, as purchaser under
a money-decree, could not defeat the plaintiff's
right as mortgagee to sell the property in satis-
faction of his debt. Pranjivan Govardhondas v.
Baju - . I. L. R. 4 Bom. 34

152. Mortgage of

property already sold in execution — Subsequent
mortgagee with notice of previous sale — Assign-

( 8489 )

UIGES'L' OF CASES.

( 8490

MORTGAGE— coM^fZ.

5. SALE OF MORTGAGED PROPERTY-

contd.

(c) PiRCHASERS — contd.
meni — Bcjcdion of application under s. 209 of Act
\ III of JRoP'—SiiH nithin one year. On the 17th
October ISfifi, K (defendant No. 1), one of the three
sons of r>, mortgaged certain immoveable property
to one N M-ith possession. On the lOtli December
1866, A (plaintiif No. 1) obtained a money-decree
against K and the estate of his deceased father. In
execution of that decree, the property was sold by
the Court and purchased by A himself, who ob-
tained a certificate of sale, dated the 80th January
1S6S. He subsetiuently sold and conveyed the
property to D and C (plaintiffs Nos. 2 and 3). On
applying to the Court for possession, the plaintiffs
were resisted by y. The Court rejected the plaint-
iffs' application on the 11th July 1868. On the
31st xMay 1871, K and his two brothers mortgaged
the property to .1/ (defendant No. 2). who took
the mortgasie with full notice of the Court-sale to
the plaintiff A. K and his brothers paiii off the
mortgage of N out of the money borrowed by them
from M (defendant No. 2) on the mortgage of
the property. xV returned his mortgage-deed to K
a.nd his brothers, who made it over to M. In 1878
the plaintiffs brought a suit against K and M for
possession of the property. The Subordinate Judge
held the plaintiffs entitled to recover it, on payment
of the amount due to M on his mortgage, being of
opinion that M was in the same position as A\ On
appeal, the District Judge dismissed the plaintiffs'
suit on the ground that it was not brouglit within
one year from the date when the application for
possession was rejected. On appeal to the High
Court -.—Held, that the mortgage by K and his
brothers to M, dated the 31st Jlay 1871, was a
mortgage of property which did not then belong to
them,— their estate and interest in it having passed
to the plaintiff A at the Court-sale. Held, also, that
the order of the 11th July 1868, rejecting the plaint-
iff's application for possession under s. 269 of the
Civil Procedure Code (Act VIII of 1859), did not
affect the riaht to bring a redemption suit against
N. Held further, that^there was nothing to show
any assignment, by N, of his mortgage, or any in-
tention on his part to assign it to M, or to keep it on
foot for J/'s benefit. The High Court accordingly
reversed the decree of the Courts below, and made a
■decree in favour of the plaintiffs. Apaji Rhivrav
V. Kavji . . I. L. B. 6 Bom. 64

153, . - Right to redee7n

— Parties— Registration Act, XX of 1860., s. 50-
Priority — Notice of prior unregistered mortgage.
On the 24th September 1860, G mortgaged certain
land to H. Subsequently, on the 14th June 1870,
he mortgaged the same land to P. Both the mort-
gages were for sums less than RIOO. The mort-
gage to H was unregistered, but the subsequent
mortgage to P was registered. On the 21st June
1873. in a suit to which P was not a party, H ob-
tained a decree on his mortgage, and at the execu-
tion sale he himself became the purchaser, and was
put into possession of the land under his certificate

MORTGAGE— con^f^.
5. SALE OF MORTGAGED PROPERTY— conki.

(c) Purchasers — conld.
of sale. On the 21st September 1874, P assigned
his mortgage to the plaintiff. The deed of assign-
ment was not registered ; neither P nor his assignee,
the plaintiff, ever had possession under the mort-
gage of 1870. The plaintiff brought this suit to
obtain possession of the land. Both the lower
Courts dismissed the plaintiff's claim. On a .special
appeal to the High Court : — Held, that, in order to
bind P by the decree passed in 1873 and thus make
a good title to the purchaser under that decree, H
should have made P a party to his suit, thereby
giving P an opportunity of redeeming //'s mortgage.
H having neglected to do this, the plaintiff in the
present suit, as the assignee of the rights and
equities of P, was entitled to redeem the mortgage
of H in case it was proved that P had notice of that
mortgage. Shivr.am v. Genu. I. L. R. 6 Bom. 515
See Naran Purshotam v. Dalatram Virchakd
I. L. R. 6 Bom. 538

154.

Registration —

Notice — Sale of mortgaged property in execution of
a money-decree icitliout express notice of mortgage
— Rigl.t of mortgagee to enforce mortgage against
the jyroperty in lands of purchaser. Civil Procedure
Code, 1882, s. 287. A mortgagee under a registered
mortgage-deed obtained a money-decree against the
mortgagors in some matter other than the mort-
gage,°and sold the mortgaged property in execution
of "the decree. The mortgage lien was not
announced in the proclamation of sale as required
by s. 287 of the Civil Procedure Code (Act XIV of
1882), and the auction-purchaser had no actual
knowledge of the mortgage. In a suit brought by
the mortgagee against the mortgagors and the
auction-purchaser to recover the mortgage-debt by
sale of the mortgaged property : — Held, that, except
in a case of fraudulent concealment, the registra-
tion of the mortgage was notice to subsequent
purchasers. The" property was therefore liable
under the mortgage, and the auction purchaser > was
bound by it. Dhondo Balkrishxa Kanitkau v.
RaoJi . . I. L. R. 20 Bom. 290
155. Mortgai/c, pur-
chase of the equity of redemption — Suit for con-
firmition of possession and declaration of title,
whether mnintmnahle by such purchaser — Parties —
Purchaser from a mortgagor, vihelher bound by a
decree passed in his absence. Defendant No. 4, after
having mortgaged a certain property to defend-
ants Nos. 1 and 2, sold the same to the plaintiffs ;
subsequently defendants Nos. 1 and 2, although
aware of plaintiffs' purchase, brought a suit upon
the mortgage-bond against defendant No. 4 only
without making the plaintiffs a party, and after
having obtained a decree sold the property in execu-
tion thereof and purchased it themselves. In a suit
by the plaintiffs for confirmation of possession and
declaration of title : — Held, that, inasmuch as the
plaintiffs were not made parties to the mortgage
suit, the mortgage-decree was not binding upon

( 8491 )

DIGEST OF CASES.

( 8492 )

MORTGAGE— co«<(/.

5. SALE OF MORTGAGED PROPERTY— con<rf.

them, but at the same time the plaintiffs did not
acquire by the purchase any other right tlian to re-
deem the mortgage, and that the plaintiiis were not
entitled to the decree prayed for by them. Protap
Chandra Mandal v. Ishak Chandra Chowdhry
4 C. W. H". 266

156.

Stiit for recovery

of possession by the ■purchaser of the equity of re-
demption who is not a party to the mortgage suit,
whether maintainable. WTiere the plaintiff pur-
chased a mortgaged property from the mortgagor,
and subsequently the mortgagee brought a suit
against the original mortgagor without making the
purchaser a party, and in execution of the mortgage
decree the mortgaged property was put up to sale
and the auction -purchaser rejected the plaintiff : —
Held, that the plaintiff was not bound bj? the mort-
gage-decree, and he was entitled to recover posses-
sion of the mortgaged property. Gkish Chxjkder
MoNDrL V. IswAR Chunder Rai 4 C. W. N. 452

157.

Purchaser of

mortgaged property — Parties — Bight of purchaser to
possession — Right of redemption. — Plaintiffs are the
representatives of one U in whose favour defend-
ants 1 to 4 and one K, ancestor of defendants 8 to
10, executed a mortgage-bond on the 4th August
1882 ; defendant No. 16 is the mortgagee under a
bond executed by the same persona on the 3rd
June 1883 ; the money borrowed on this bond was
partly employed in paying off a prior bond executed
by the same persons in favour of H on the 11th
November 1878. Defendants 17 and 18 are the
assignees under another bond executed bv K on
the' 22nd September 1882. The 1st bond, 1878,
was sued on and the decree obtained on the 31st
October 1881. The decree on the plaintiff's bond
was obtained on the 31st July 1883 ; the decree on
defendant No. 16's bond was obtained on the 19th
February' 1891 ; the sale certificate obtained by the
defendants 25, 33 and another person, B, who were
the purchasers at the sale in execution of the decree
on account of the 4th bond, was dated the 13th
February 1894. Plaintiffs purchased the mort-
gaged properties at the sale held in execution of
their decree on the 2nd June 1884, and the plaintiffs
took symbolical possession on the 16th October
1884 ; defendant No. 16 purchased the property
in execution of her decree on the 29th February
1892. Plaintiffs now brought the present suit for
possession, or in the alternative for possession after
the defendants have had an opportunity of redeem-
ing the property. Held, that the decree obtained
by the plaintiffs on tlie 31st July 1883 and their
subsequent purchase could not affect the defendants,
but the fact of their omitting to make them parties
to their suit did not extinguish their right. That
by the purchase of the rights of the mortgagor the
plaintiffs acquired the ownership of the property,
subject to the incumbrances existing in favour of
the defendants, and they are entitled to possession

MORTGAGE— coMicZ.

5. SALE OF MORTGAGED PROPERTY— co?ii(Z.

(c) Ptjrchasers — cojitd.
subject to the defendants' rights of redemption.
The plaintiffs did not lose their right to possession,
although they v^ere parties to the suits brought
upon the bonds of September 1882 and June 1883,
inasmuch as they were sued as subsequent, instead
of prior, mortgagees, and that they were called on
to redeem which they were not bound to do.
Dhapi v. Basham Deo Parshad 4 C. W. N, 297

158. Purchaser of property

mortgaged from grantee of mortgagor—
Decree and sale by mortgagee — Auction-jmrchaser
— Priority of latter over purchaser from grantee of
mortgagor. In the year 1869 A mortgaged her
share in a zamindari to B. In 1870 she granted a
patni lease of the property to C, who transferred
it to D. Subsequently, A made a gift of the pro-
perty to E, and in 1872"i? sold the land so given to F,
who thus became the owner of the patni and zamin-
dari rights of the property formerly belonging to A.
In 1873 B brought a suit against E (to which F was-
not a party) on his mortgage-bond, and obtained
a decree for the sale of the mortgaged property. At
the sale the property was purchased by G (the son of
D). F then brought a suit for rent against G and
obtained a decree. G then brought this suit against
F to have it declared that he was no longer liable to
pay rent, and to establish his zamindari rights,
claiming a refund of the money paid under the rent-
decree. Held, that G had bought the entire interest
which A and B could jointly sell, and not merely
the rights and interests of A as they stood at the-
time of the sale, and that he was therefore entitled
to a decree declaring that lie was no longer liable to-
pay rent to F. Muthora Nath Pal v. Chttnder-
MONEY Dabia . . I. L. R, 4 Gale. 817

159. Purchaser, assignee of —

Ejectment by assignee of purchaser at sale in exe-
cution of decree against puisne mortgagee — Bights
of parlies. Where immoveable property mortgaged
has been sold by a Court in execution of a decree
obtained by the mortgagee to enforce his lien against
the mortgagor, a puisne mortgagee who has not been
made a party to the suit is not bound by the decree-
or sale, and is entitled to redeem the first mort-
gage. The assignee of the purchaser of land sold ia
execution of a mortgage-decree obtained by a mort-
gagee in a suit against the mortgagor alone is not
entitled to eject a puisne mortgagee ; but where such
a suit is brought and the puisne mortgagee does not
object to a decree ordering him to pay the amount
realized at the Court-sale within a certain time, or
else to deliver up possession to the plaintiff and be
for ever foreclosed, he is entitled, on payment of
the sum decreed, to retain possession as mortgagee
both in respect of his original debt and of the sum
required to be paid by him for its protection. The
ruling in Muthora Nath Pal v. Chundermoney Dabia,
I. L. B. 4 Calc. 817, and dictum of West, ■/., ia
Shringarpure v. Pethe, I. L. B. 2 Bom. 663, dis-
sented from. Venkata v. Kannam

I. L. R. 5 Mad. 184

( 8493 )

DIGEST OF CASES.

( 6494 )

MORTGAQE— co»<i.

5. SALE OF MORTGAGED PROPERTY— C0Ji<ri.

leo.

Suit by purchaser for pos-

session— Priority — Equity of redem-ption — Regi.
tration — Notice — Parties to suit brought by a first
mortgagee — Practice — Amendment of pl'iint. A, the
owner of certain land, mortgaged it to S for ten
years for R 1,500 by a deed dated the 27th Novem-
ber 1SG7. The deed was registered, but S was not
put into possession of the mortgaged land. On the
17th January 1S6S, A mortgaged the same land to
the defendant R for R 250. The mortgage-deed was
registered in May 18G8, and recited that the mort-
gagee (defendant) was put in possession. The lower
Courts found as a fact that the defendant had ob-
tained possession of the mortgaged property. S sued
A on her mortgage, and obtained a decree against
him, dated the 8th December 1869, directing satis-
faction of the mortgage-debt by the sale of the mort-
gaged pro])erty. The defendant was not a party to
that suit. On the 10th March 1870 the land was
sold in execution of that decree, and purchased by
the plaintiff for R 90-12, with notice of the defend-
ant's mortgage. On the 2Sth April 1870 the de-
fendant R instituted a suit in ejectment against N
(the mother of A), who was in occupation of the
land as tenant and had failed to pay tlie rent. On
the 7th July 1870 the plaintiff, as purchaser at
the abovementioned sale, was put into possession,
but on the 24th August 1870 the defendant ob-
tained a decree in ejectment against N (the mother
of A) as her tenant. In execution of that decree,
the defendant recovered possession of the land,
dispossessing the plaintiff though he had not been
a party to the ejectment suit. The plaintiff there-
upon brought the present suit to recover the land
under s. 230 of Act VIII of 1859. His claim was
rejected by the Subordinate Judge, but allowed
by the joint Judge in appeal. On special appeal to
the High Court : — Held, that the claim of S against
the land was prior to that of the defendant, inas-
much as her mortgage was prior in date to the de-
fendant's mortgage, and was registered. S had a
right to maintain a suit for the sale of land to satis-
fy her mortgage, but she ought to have made the
defendant (as subsequent mortgagee) a party to it,
inasmuch as the equity of redemjjtion was vested in
the defendant to the extent of her (defendant's)
mortgage, and she (defendant) would have been
entitled to redeem the land by payment of the
amount which might have been found due to S in
her suit. The defendant being in possession of the
land at the time of the institution of the suit of S,
and her (defendant's) mortgage being registered,
S must be regarded as having had notice of the de-
fendant's claim, and was bound to make defendant
a party to that suit in order to give a good title to a
purchaser under such decree as might be made in
that suit. S, by her omission to do so, did not
afford to the defendant the opportunity of redeem-
ing to which the defendant was entitled. The
plaintiff, notwithstanding notice of the defendant's
claim, became the purchaser, although the defendant

MOHTG AGE— contd.

5. SALE OF MORTGAGED PROPERTY— co/if<i.

was not a party to the suit of S, and therefore not
bound by the decree in it. The plaintiff accordingly
was fully aware of the infirmity of the title which he
was acquiring. No doubt, the decree in the suit of
S bound the mortgagor A, who was a party to it, so
far as his right to redeem was concerned. The
plaintiff therefore had a good title to the interest of
A, and was entitled to redeem the land from the
defendant's mortgage. The utmost relief which the
Court could afford to the plaintiff under the abo^■e
circumstances was to permit him to amend his
plaint by praying a redemption of the land from the
defendant's mortgage, and to treat his suit, whi h
was in the nature of an ejectment suit, as one for
redemption. The High Court accordingly reversed
the decree of the Joint Judge, and made a decree
for an account on the defendant's mortgage, allow-
ing the plaintiff to redeem within a certain time on
payment of the balance that might be found due to
the defendant, or, in default, ordering the plaintiff
to be for ever foreclosed from recovering the land.
Itcharam Dayaram v. Raiji Jaga, 11 Bom. 41
and Shringarpure v. Pethe, 1. L. R. 2 Bom. f>f!o,
referred to and followed. Radhabai v. Shamrav
ViNAYAK , . . I, li. B. 8 Bom, 168

161.

Execution — "^ale

of equity of redemption — Purchaser at execution-
sale — Sale in execxition of decree on mortgage prior
in date — Priority — Possession — Notice — Certificate of
sale. On the 18th January 1877 the father of the
plaintiffs purchased the interest of M in two houses
at a sale in execution of a money-decree against .1/.
The purchaser, however, never obtained possession,
and he flid not obtain the certificate of sale until the
31st July 1878. Subsequently to the sale of the
18th January 1877, two suits were filed against
31 on mortgages executed prior to that date and
decrees in both were obtained against M. In exe-
cution of these decrees, both tlie houses were sold
and the respective purchasers were represented by
two of the defendants. The purchasers got posses-
sion and both obtained sale-certificates, one prior to
the sale to the father of the plaintiffs, viz., on 5th
February 1878, and the other subsequently, r/r., 1st
November 1878. The plaintiffs now sued to re-
cover the houses. Held, that the plaintiffs were not
entitled to recover as against the defendants. The
plaintiffs, not having either got possession or ob-
tained a certificate of sale at the date of the sale in
execution of the decrees on the mortgages, had only
an inchoate title. The purchasers in execution had
no notice of the plaintiff's incipient right, and hav-
ing been left to buy what, so far as thiey knew, was
a complete title, they ought not to be disturbed at
the instance of the plaintiffs who failed to assert
their dormant right. Had the plaintiffs got into
possession or obtained a certificate and registered,
there would have been notice sufficient to put all
persons interested on inquiry as to their rights ; but
while they chose to keep their rights wholly in the

8495 )

DIGEST OF CASES.

( 8496 )

MORTGAGE— co«.<d.

6. SALE OF MORTGAGED PROPERTY— co?i<(i.

(c) Purchasers — co7itd.
dark, they invited others to act as if those rights
were not in existence, and they could not look to the
Courts to extend and complete such rights in a way
which would render the defendants victims, not of
their own negligence, but of the negligence of those
who wouldjgain by it. Nanjundepa v. Hemapa
I. L. E. 9 Bom. 16

162. • San-moitgage

— Mortgage with possession — Sale in execution of
decree obtained by first mortgagee — Purchase by
first mortgagee at such sale — Suit by purchaser
against second mortgagee for possession — Rights
of second mortgagee — Redemption. In 1866 R exe-
cuted a san-mortgage of certain land to the plaintiff,
and four years afterwards mortgaged the same land
with possession to the defendant. In IS75 the
plaintiff brought a suit against R alone upon the
mortgage, obtained a decree, and he himself pur-
chased the property at the Court-sale held in
execution of that decree. In attempting to take
possession he was obstructed by the defendant, who
was in possession of the property as mortgagee.
The plaintiff now sued the defendant for possession.
Both the lower Courts held that the plaintiff should
satisfy the defendant's subseciuent mortgage before
he could recover possession. On an appeal by the
plaintiff to the High Court : — Held, reversing the
lower Court's decree, that the plaintiff's claim
should be allowed. The plaintiff having brought
to sale, in execution of his decree, the estate as it
stood at the date of his mortgage free from all sub-
sequent incumbrances, the fact that he himself was
the purchaser could not affect the estate which
passed by that sale. As the defendant had not
been a party to the plaintiff's suit against R, he was
entitled to redeem the property if he wished.
Mohan Manor v. Togu Uka

I. L. R, 10 Bom. 224
163. • Suit by mort-
gagee for possession of mortgaged property — Pre-
emption— Purchaser for value without notice.
Under a registered deed of mortgage, dated in ]\Iay
1869, the mortgagee had a right to immediate pos-
session ; but by arrangement between the parties
the mortgagors remained in possession, the right of
the mortgagee to obtain possession as against them
being, however, kept alive. In October 1869 the
mortgagors sold tlie property, and tlicreupon one R
brought a suit to enforce the right of pre-emption in
respect of the sale and obtained a decree, and got the
property and sold it in 1S71 to D. In 1SS3 the
mortgagee brought a suit against D to obtain posses-
sion under his mortgage. Held, that, although
it would be material to show that the defendant had
in any way by fraud been kept out of knowledge of
the mortgage, his not having notice of it would not
otherwise affect his liability inasmuch as the prin-
ciple on which Courts of Equity in England refuse to
interfere against bond fide purchasers for a valuable
consideration, without notice, when clothed whh the
legal title, had no applicability in the Courts of

MORTGAGE— cow<d.

5; SALE OF MORTGAGED PROPERTY— con^cZ.

(c) Purchasers — contd.
British India. Held, also, that under these circum-
stances, there was no equitable ground why the
plaintiff's right under the mortgage, which had
priority, should be defeated by the defendant's
purchase. Durga Prasad v. Shambhu Nath

I. L. R. 8 All. 86

164.

Auction-purchasers — Trans-

fer of Property Act (IF of iSS.?), ss. 91 (/), S5—
Decree for money — Mortgage by conditional sale — Suit
on mortgage — Confession of judgment followed by
decree for possession — Holder of the money decree not
a party — Sale in execution of money decree — Rights
of auction-purchaser. A judgment-debtor under a
decree for money mortgaged certain property by a
deed of conditional sale. The property mortgaged
was attached as the property of the judgment-
debtor, and an order for sale was passed. Prior to
the sale, however, the mortgagees having put their
mortgage into suit, the judgment- debtor confessed
judgment, admitted the mortgage-debt, stated that
he had not means to pay it, and asked that a decree
for possession of the property might be passed in
favour of the mortgagees ; and a decree was so
passed. To this suit the mortgagees, who were
found to have had notice of the interest of the
attaching judgment-creditor, never made him a
party. Subsequently to the passing of the decree
in the mortgagees' suit, the judgment-creditor
under the money decree caused the property to be
sold. The auction-purchaser uas resisted, in ob-
taining possession, by the mortgagees, and there-
upon sued them for possession. Held, that the
auction-purchaser was entitled to a decree for
possession on redeemins: the mortgase. Suraj Bunsi
Kocr V. Sheo Pershad Singh, I. L. R. 5 Calc. 148,
Ponnappa Pillai v. Pappuvayyangar, I. L. R. 4
Mad. 1, 64, and Anand Chandra Pal v. Panchilal
Sarma, 5 B. L. R. 691, referred to bv Banerji, J.
Ghulam Hu?ain J-. DiNA Nath (190J)

I. L. E. 23 All. 467

165.

Mortgage — Prior

a7id subsequent incumbrancers — Suit by prior in-cum-
hrancer not making subsequent incumbrancer a
party — Suit for redemption arid sale by puisne
mortgagee — Rights of purchaser at aw tion-sale under
the decree in the first svii, and of the a.'?signee
oi the origirud mortgagee. One K, holding a first
mortgage on certain property, brought a suit for
sale on his mortgage, and obtained a decree. B,
a creditor of K, attached the decree, and, having
put up the mortgaged property for sale, purchased
it himself. After this, G, a puisne mortgagee of the
same property, who had not been made a party to
A^'s suit, brought a suit to redeem K's mortgage and
sell the property. K transferred his rights as mort-
gagee to P, who was thereupon made a defendant.
G obtained a decree for redemption and sale. Held,
that P was entitled to the whole amount which G
had to pay for redemption of the prior mortgage,
with the exception of the amount of the purchase
monej' paid bj' B at the auction-sale, which amount.

( &497 )

DIGEST OF CASES.

( 8498 )

l£0-RTGAa-E—corUd.

MOILTGAGB-conid.

;ALE OF MORTGAGED VUOVERTY—corUd. 5. SALE OF 3I0RTGAGED PROPERTY— <r^rU4.

Ic) PCBCHASEES — am/4,
and that only, vould be due to £ or hia repre-
«raita^ive«. Zhp Xarain Singh v. ^tVa Singh,
I. L. R. 19 AU. ■'i27, apprcied. WAHiD-rs-STSSA
V. GoBABDHAX Das fll>03, . L li. E. 25 AIL 388

166. Contribution— Co-morf^a^ora

— hv.roA, on rrtfjrVjagt — FrirrjU. ml*, of moitgwgtd j/ro-
periy hy one yjAgrattd-dehlor vrith have of Court —
Citril Procedure Code (Act XIV of IWi). i. ZOf,—
Satisfaction of decree hy one 'jvAgrMrd-de^Ar/r — Con-
irxbviion — Suit hy jiurduuer at f/rirfde Mjle to eiect
one of tlie ^^jtdfjmerd-dehU/ri in po^e^ion of part of
rnorigarjed j/roperty — Lien on iurJi. -part for cmdri-
huiifjn pa^e^ //> purckaser — Trnr^sfer of Prop^y
Act 'I V of lS^-2), *. 4-3. In 18f>6 a mortgage-decree
-R-a= passed against Yamnappa and Basapp>a (res-
pondent-defendant*), as co-mortgagors of the pro-
perty in snit, and, in default of payment bv them
■of the mortgage-de?jt, the mortgaged property
•vas ordered to be sold They failed to pay the
■amount, and the decTee-holder obtained an order for
sale. Before the day fixed for the sale, Yamnappa,
-one of the jud^roent-debVjr;, applied to the Coart
xinder s. 305 of'the Ci\il Procedure Code (Act XIV
of lSS:i': for a postponement of the ■^aV., in order
to enable him to raise the amount of the decTee
by a private sale of the property. The appli-
cation was granted, and he sold the whole of the
mortgaged property to Gurshantappia (father of the
plaintiffs j for H 1,534, which was daly paid to the
•decree-holder. Satisfaction of the decree was enter-
ed, and the Court confirmed the sale. Easappa (the
second judgment-debtor; was in possession of a
portion of the property, and he refused to give up
possession, alleging that he had separate! from
Yamnappa and that the land in his possession had
fallen to his share on separation, and contending
that the sale by Yamnappa to Gui^hantappa was
Dot binding upon him and did not afiect his share.
The pJaintiSs, who were the heirs of Gurshantappa,
brought this suit to eject him. The lower Courts
reje'Ted their claim, and dismissed the suit. On
•e^.ond appeal : Held that the sale by Yamnappa,
although made »ith the leave of the* Coxirt under
f. Vi'j of the Ciril Procedure Code, did not afiect the
interest of Basappa. The authority given to
Yamnappa under that section related* only to hia
interest, but con Id not affect the interest of the
other judgment-debtor 'Basappa^, who had not
joined him in applying for leave to sell under that
•Ktion, The appellants (plaintiffs;, therefore.
pnrchased only that j>ortiwi of the property '^^jvered
by the mortgage decree which hilonged* to their
Tendor Yamnappa, and the lower Courts were right
in rejecting the claim for possession of that portion
which belonged to Basappa. But loeld, als - (re-
Tersing the decree of the lower Courts;, that the
appellants (pjaintiffs; had a charge on the property
St Basappa's possession to the extent of Basappa's
Aare of the mortgage-debt. Yamnappa had paid
«ff the whole mortgage-debt with Gurshantappa's
forchase-moBej, aul had satisfied the decree. He

therefore became entitled to a rateable contribution
from his co-judgment-debu*r, and he had a lien on
Basappa's property for the amount of Basappa'a
liability under the decree. That lien passed to
Gurshantappa, as transferee of Yamnappa, as soon
as it came into existence, under s. 43 of the Tranjsfer
of Property Act (l\ of 1 ^2;. The only right, there-
fore, which the plaintiff could assert, wae the right
to a lien on the property in dispute for a one-third
share of the amount of the mortgage decTce. Dajt-
AWA r. Yamxappa (1902; I. L.'E. 26 Bom. 379

167. Payment in adjustment of

decree— C.Va Procedure Code lAd XI V of lhii2), 9.
2->^ — A'jreerrierd hy yurctujuer of rrt/zrUjaged prryperty to
pay an 'irjreed rum U> rru/rUjagee funding decree for

fnU — Trar><iftr of Properly Act (IV of lhH2), i. 57

Faymeyd into Court by purctto^ier of rrvortgaged pro-
perty in YOTi-a/jince of od-juMrrtAfrd of d^xree O'xi of
Court— Limii/aion Act (AT of Ihll), Sdt. II, Art.
17 2 A — Apfiication for adpiMrnent of decreji. Uj hi
recf/rdM. The mortgagee of certain property
broTight a siiit on his mortgage, and (j\j\ja!axv\ a de-
cree for sale. Petitioner then negotiated with the
mortgagor for the purchase of the lands. The
mortgagee consented to the proposed purchase, and
agreed to accept from petitioner a s-um of monev in
full satisfaction of his mortgage decree. Petitioner
completed the purchase accordinajy, and tendered
the agreed sum to the mortgagee, who refused to
accept it. Petitioner thereupon filed this petition,
under s. 57 of the Transfer of Property Act, asking
to be allowed to pay the amount into Court, and
praying for a declaranon that the proT>errv Tca*
freed from incumbrance. The morti- .
ed that the application fell under 5. 2 "
of Ci^il Proc-edure, in which case it •» - u

under Art. 17.3A of Sch. II to the Lirr..i-. i. A.t :
JEfeW, that s. 57 of the Transfer of Property Act did
not go- -'ni *'.' 'j<iie, as it involved a question of the
adj-. 'Tee out of Court ; olao that =. 2.v"i

of t; 1 Procedure was not applio*'o]e,

and • r was not precluded by Art. 173A

of Sch, l\. to tiife linytation Act from proving the
agreement set up by him under s. 244, cL (c;, of the
Code of Civil Procedure, and that he was entitled,
on payment of the money into Court, to the de-
claration sought. MAIXIKAEjrnfA Sastei f. Xara-

siMHA Rao (IVjI) . . L L. E. 24 Mad. 412

168. Eedemptioa— J/orTyo^e.,,

prior and 9yd>9e/pie^ — Eight of (.urcti/urer at a prior
rrw/rtgage tale to redeA:m the Tig>d« of a yurOuiJier at a
iniljien^u^ nujrVjagt 9oLt. \\"here the plaintiff pur-
chased certain properties at two mortgase sales, and
the defendant purchased a portion of'the same pro-
perties at a prior mortgage sale, and the defendant
was not a party to the decrees in execution of wfaich
the plaintiff porchaaed, and the plaintiff was not a
party to the decree in execntjon of which the de-
fendant porchaaed : Hdi, that the plaintiff par-
chaaed the mortgagee's zighta and the equity of
redemption in the remainda of the pioper^ whidi

DIGEST OF CASES.

8500 )

MORTGAGE— cowt(f.

5. SALE OF MORTGAGED PROPERTY— co7i<fZ.

(c) Purchasers — contd.
was not covered by the defendant's decree ; and
that the defendant was entitled to redeem by paying
off the proportionate amount of the plaintiff's mort-
gages due on the property purchased by him ; and
that, if the defendant failed to pay as aforesaid, the
plaintiff would be entitled to pay off the defendant
by paying into Court the amount paid by the
defendant for the property. Sheo Pekshad Singh
V. Tii,UK SiXGH (1900) . . 5 C. W. N. 232

169. Mortgage — Prior

and subsequent mortgagee — Sale by first mortgagee
and purchase by himself — Purchaser from first mort-
gagee— Redemption of purchaser by subsequent
mortgagee — Amount payable. A first mortgagee,
who had no notice of a subsequent mortgage, ob-
tained a decree for a mortgage debt (amounting to
about ft350) in a suit in which the subsequent mort-
gagee was not made a party, brought the property
to sale and purchased it himself for R25 and sub-
sequently sold it to the plaintiff for K.99. The sub-
sequent mortgagee also obtained a decree on his
mortgage and purchased the property at a sale held
under that decree. In a suit brought by the plaint-
iff against the subsequent mortgagee, in which the
prior mortgagee was not made a party : — Held,
that without prejudice to the rights of the first mort-
gagee and as between the plaintiff and the defend-
ant, the latter could be allowed to redeem the
former only upon payment of what was now due on
the first mortgage and not merely what the first
mortgagee or the plaintiff himself had paid for the
property. Collins v. Biggs, 14 Wallis (Irish) 491,
Nilkant Bannerjee v. Suresh Chandra Mullick,
I. L. B. 12 Calc. 414, and Sivathi Odayan v. Bama
Subbayar, I. L. B. 21 Mad. 64, relied on. Girish
Chandra Nandi v. Kedar Nath Kundc (1906)
I. L. R. 33 Calc. 590
s.c. 10 C. W. N. 592

170. Prior and puisne

mortgagee — Purchase by each at sale on his mortgage —
Bights inter se — Suit for possession by j,rior mort-
gagee— Maintninahility — Bight of puisne mort-
gagee and pxirchasers not made parties in mortgage
suit to redeem — Partial redemption — Bedemption,
price of — Mode of calctdation — Interest, rate of —
Payment made by subsequent mortgagee to save pro-
perty from rent sale, if to be taken into account —
Contract Act (IX of 1872), s. 69— Bengal Tenancy
Act (VIII of 1885), s. 171. A first mortgageeob-
tained a decree for sale of the mortgaged properties
and purchased the same in execution, but when he
proceeded to take possession was successfully re-
sisted (i) by a second mortgagee, who had mean-
while sued on his mortgage, obtained a decree and
purchased some of the properties in execution, and
(ii) by certain other persons who had purchased
some of the other properties from the mortgagor.
None of these had been made parties in the first
mortgagee's suit, the latter not having had notice
of their interest in the mortgaged properties : —
Held, that it was not obligatory on the first mort-

MORTGAGE— co7t<£i.

5. SALE OF MORTGAGED PROPERTY— confi,

(c) Purchasers — contd.
gagee to institute a fresh suit for sale on his mort-
gage against these persons and a suit for recovery
of possession of the properties on the basis of his
purchase was maintainable. Har Persad Lai v.
Dal Madan Singh, 9 C. W. N. 728 : I. L. B. 32
Calc. 891, followed. That if the defendants wanted
to retain possession they must redeem the plaintiff,
but as the plaintiff was both mortgagee and pur-
chaser, the defendants were not bound to redeem
the entire mortgage, but only to the extent of the
properties purchased by them. Surjiram Maruari
V. Berhamdeo Pershad, 2 C. L. J. 202 ; Hnri Kissen
V. Velait Hossein, 7 C. W. N. 723 : 1. L. B. 30 Calc.
755, relied on. That to redeem the i^laintiff, it was
not sufficient for the defendants to pay a propor-
tionate share of the purchase-money paid by him.
The amount payable must be calculated on the basis
of the plaintiff's mortgage, but inasmuch as the
plaintiff had already enforced that mortgage and
the mortgage debt had been thereby converted into
a judgment-debt he was entitled to the contract rate
of interest, only up to the date of the decree in the
previous suit, and interest at the Court rate sub-
sequent thereto up to the date of payment to be
fixed by the decree in the present suit. Girish,-
Chander v. Kedar Nath, 10 C. W. N. 592 : I. L. R.
33 Calc. 590 ; Bani Sunder Koer v. Bai Sham Kisseiit
11 C. W. N. 249 : 5 C. L. J. 106, followed. Kusumun-
nissa v. Nilratna Base, I. L. B. 8 Calc. 79, 88, not
followed. Held, also, that in taking accounts credit
ought not to be given to the defendants for pay-
ments alleged to have been made under s. 171,
Bengal Tenancy Act, to save the properties from
sale in execution of a rent decree, inasmuch as the
first mortgagee was not bound by law to pay the
amount within the meaning of s. 69 of the Contract
Act. Gangadas Bhattar v. Jogendra Nath
MiTTER(1907) . . . 11 C. W. N. 403

171. Suit for possession — 3Iort-

gage-suit — Subsequent purchaser not made a party —
Sale — Purchase by mortgagee himself — Mortgagee's
right to sue for possession — Suit for sale — Limitation.
Where a mortgagee A brought a suit on his mort-
gage without making one D, a subsequent trans-
feree from mortgagor, a party although he had
notice of the transfer and in execution of the decree
obtained in the suit purchased the property himself t
Held, that a suit by ^4 for the recovery of possession
of the property from D does not lie, and A's only
remedy is by a suit for sale. AonoRE Nath
Bannerjee v. Deb Narain Guin (1906)

11 C. W. N. 314

172. Mortgage — Pur-
chaser of equity of redemption not made party in mort^
gage suit — His right against purchaser at moitgage
sale — Bespective rights hotv adjusted — Suit for posses-
sion— Limitation — Transfer of Property Act (I V of
1882), ss. 60, 85— Be^ jvdicata. \Yhere a mort-
gagee in execution of a decree against the owners
of the equity of redemption, except one, brings the
mortgaged property to sale and purchases it, the

( 8501 )

DIGEST OF CASES.

{ 8502 )

MORTGAGE— conld.

5. SALE OF MORTGAGED PROPERTY— corKci.

(c) Purchasers — concld.
owner of the equity of redemption, who was omitted
from the mortgage suit, is not affected by the decree.
The proper procedure for the purchaser in such a
case to follow is to sue for recovery of possession
subject to the right of the person excluded to re-
deem him. Where after such purchase the owner of
the equity of redemption, who had been excluded,
brought a suit for recovery of possession against the
purchaser at the mortgage sale on the ground that
he was not aiiected by the mortgage decree, and the
suit was decreed : Held, that the owner of the
equity of redemption cannot resist a suit by the
purchaser at the mortgage sale for possession
(subject to the right of the defendant to redeem)
on the ground that the right of the parties ought
to have been adjusted in the previous litigation,
when in the jjrevious litigation he had successfully
pleaded that the purchaser at the mortgage sale
must enforce his rights by a separate suit. Jugdeo
SixciH V. Habibulla (1907) . 12 C. W. K". 107

(f/) MlSCELl.ANEOTJS.

173.

fflOlt

Suit to recover from pur-
chaser the amount due on prior encum-
brances when they have been after the
purchase, declared invalid— »S'afe of mortgaged
property — Purchasers — Sale subject to prior encuvi-
hrances — Purchase by decree-holder. Certain villages
were put up for sale in execution of a decree under s.
88 of the Transfer of Property Act (IV of 1882), and
it was notified in the proclamation of sale that the
property was to be sold subject to two prior mort-
gages of 25th May, and 2nd December, 1 877. The
decree-holder (the predecessor in title of defendants)
obtained leave to bid and became the purchaser of
eight of the villages. Subsequently, as the result of
suits to enforce them, the two mortgages of 1877
were, by decrees of the Privy Council and the High
Court respectively, declared to bo invalid. In a
suit brought by the vendor against the represen-
tatives of the auction-purchaser to recover the
amount due on tlie two mortgages of 1877, as
" unpaid vendors' purchase money." Held
^reversing the decision of the High Court), that the
suit was not maintainable. On the sale of pro-
perty subject to encumbrances the vendor gets the
price of his interest, whatever it may be, whether
the price be settled by private bargain, or determined
by public competition, together with an indemnity
against the incumbrances affecting the land. The
■ contract of indemnity may be expressed or implied.
If the purchaser covenants with the vendor to pay
the incumbrances it is still nothing more than a con-
tract of indemnity. The purchaser takes the pro-
perty subject to the burden attached to it. If the
encumbrances turn out to be invalid the vendor
has nothing to complain of : he has got what he bar-
gained for : his indemnity is complete. He cannot
pic)t up the burden of which the land is relieved and
seize it as his own property. The notion that after
the completion of the purchase the purchaser is in

MO'RTGAG'E—contd.

5. SALE OF MORTGAGED PROPERTY —coiitd.

{d) Miscellaneous — concld.
some way a trustee for the vendor of the amount by
which the existence of encumbrances or supposed
encumbrances has led to a diminution of the price,
and liable therefore to account to the vendor for
anything that remains of that amount after the
encumbrances are satisfied or disposed of, is without
foundation. After the purchase is completed the
vendor has no claim to participate in any benefit
! which the purchaser may derive from his purchase.
Tiveddel v. Tweddel, 2 Br. C. C. 151, Bvtler v.
Buthr. 5 Vesey 534, audi Waring \. Ward, 7 V esey
332, 336. referred to. Izzat-un-kisa Begam v.
Partab Singh (1909) . I. L. R. 31 Ail. 583

174. Suit for sale of property-
subject to a charge — Transfer of Property Act
ilV of 1882), s. 88— Mortgage— Charge. There is
no objection to the sale, in execution of a decree for
sale on a mortgage i" subject to the charge ' ' of pro -
perty Avhich is hable to a charge for maintenance in
favour of a particular person. Mata Din Kasodhan
v. Kazim Husain, I. L. R. 13 All. 432, distinguished.
Lalman v. Mohar Singh (1906)

I. L. E. 29 All. 205

175. Adjustment— Tra?i,s/fr of Pro-
perty Act {IV of 1882), ss. 89, 104— Mortgage decree
— Execution, — Power of executing Court to enforce ad-
justment-Civil Procedure Code (Act XIV of 1882),
ss. 244, 258. After the order absolute for sale was
passed the mortgagee agreed upon receipt of
certain sums of money to give up his claim for
compound interest and to allow a certain remission.
Held, that the Court executing the decree was com-
petent to give effect to the adjustment. Bibijan
Bibee v. Sachi Ben a, 8 C. W. A'. 684 : s.c. I. L B.
31 Calr. 863, applied. Quaere : AVhether s. 258 of
the Civil Procedure Code applies to proceedinsrs in
execution of a mortgage decree. Dulcshimi Mohan
V. Basumati Debi, 4 C. W. N. 474 ; and Ilatem Ali v.
Abdul Gaffvr Khan, 8 C. W. K. 102, referred to.
Harish Chandra Mondol v. Jagabandiiu Dutta
(1908) .... 12 C. W. K". 282

176. Suit for contribution by-
mortgagor -whose property has been sold —
Joint jnortgage — Satisfaction of mortgage debt by sale
of part only of the mortgaged property. In a suit
for contribution amongst co-mortgagors, even if it
is a condition precedent to the institution of such
a suit that the whole mortgage debt should have
been satisfied by sale of mortgaged property it is
not also necessary that it should have been satisfied
wholly out of the propertv of the plaintiff. Ibn
Husain v. Ram Dai, I. L. R. 12 All. 110, and Ibn
Hasan v. Brijbhulan Saran, I. L. R. 26 All. .07,
referred to. Muhammad Yadiya v. Razi-ud-din
( 1908) . . . I. L. R. 31 All. 65

6. MARSHALLING.

L — Mode of satisfaction of

m.ortgage lien — Sale by third party in execution.

( S503 )

DIGEST OF CASES.

( 8504 )

MORTGAGE— cowffZ.

6. MARSHALLING— conW.

The plaintiff had a lien on three estates belonging
to his debtor, and a third party, having obtained a
decree for money due from the same debtor, re-
covered his money by the sale of one of the three
estates mortgaged to the jilaintiff. Held, that the
sale did not release that estate from the mortgage,
but that it forced the plaintiff to take measures in
the first place to recover the amount due to him
from the remaining estates included in his mortgage-
deed ; and that, if a balance remained after he had
realized all he could from these two remaining es-
tates, he could then return to the third estate to
secover the balance. Nowa Koowar r. Abdool
Rtiheem . . . W. R. 1864, 374

2. Charge on several

j)roperiies. Tn a suit to establish a claim against
three properties mortgaged to the plaintiif, but
situate in different districts, where one of the de-
fendants (the appellant) •was interested in one only
of the properties, the appellant having asked that
plaintiff might be compelled to resort first to the
two other properties for the satisfaction of his de-
mand before touching the third, but having given
no evidence to show that he was a ho7id fide subse-
quent mortgagee without notice of the prior mort-
gage, the Court declined to accede to the prayer
lest the}- should be prejudicing the plaintiff's rights
or improperly controlling Vxis remedies. Quwre :
Should the doctrine of marshalling of securities be
introduced into this country ? Khetoosee Che-
EOORiA V. Banee Madhttb Doss . 12 W. R. 114

3.
prnperlies.

— Charge 07i several
J. — Case remanded

MORTGAGE— con/rf.

6. MARSHALLING— cojWrf.

decrees. A mortgagee brought a suit against the
mortgagor to have a declaration of his lien over the
mortgaged properties, and obtained a decree. He
afterwards brought another suit against certain
attaching creditors of his mortgagor to have a
declaration of his lien over certain surplus moneys
in the hands of the Collector, who, previously to the
institution of the first suit, had sold certain of the
mortgaged properties free of all incumbrances for
arrears of Government revenue. Held, that the
mortgage-decree declaring the lien over all the mort-
gaged properties covered the surplus sale-proceeds
then in the hands of the Collector, because these
moneys must, as between the mortgagee and at-
taching creditors of the mortgagor, be taken to re-
present the mortgaged properties. Heera Lall
Mookerjee v. Janokeenath Mookerjee, 16 W. R. 222,
followed. KiSTODAS Ktjndoo v. Ramkanto Roy
Chowdhry

I. L. R. 6 Calc. 142 : 7 C. L. R. 396

Per Setox-Kare,
for the lower Court to find whether, when property
hypothecated for a bond has passed to a bond fide
purchaser, the same can be declared liable to
satisfy such part of a money-decree on the bond
as cannot be satisfied from any other source. Per
Norman, ./. — If .4 has a mortgage on two different
estates for the same debt, and B has a mortgage on
one only of the estates for another debt due from
the same party, B has a right in equity to throw A
in the first instance for satisfaction upon the se-
curity which he, B, cannot touch, where it will not
prejudice .4's right or improperly control his re-
medies. A purchaser of one of the estates has the
same ecjuity as a mortgasee. Bishonath IMooker-
JEE r. KiSTO MoHux Mookerjee . 7W. R.483

4. Priority— Mar-

thnllir^ of securities — Purchaser for value. Where
the owner of certain property mortgages it to A ,
and afterwards sells a portion of fhe mortgaged
property to B, it is not incumbent on A in suing to
enforce his mortgage to proceed first against that
portion of the property which has not been sold bj'
the mortgagor. L.vla Dilawar Sahai v. Dewan
B(.lakiram . . . I. L. R, 11 Calc. 258

5 Honey-decrees —

Doctrine of marshalling — Mortgage-decree — Surplus
sale-proceeds. The doctrine of marshalling does
not apply as between a mortgagee and atfacliing
creditors of the mortgagor who hold mere money-

Apportionment of debt —

I Bight of mortgagee to sell any portion of his security.
! A mortgagee's right to realize his deist by sale of
j any portion of the land mortgaged to him cannot
be curtailed by the fact that the portion of the land
he elects to sell has been sold by the mortgagor sub--
sequent to the date of the mortgage and the pur-
chase-money has been applied to liquidate a prior
mort£iage on the land sold. Rama Raju v. Subra-
RAYrDTj .... I. L. R. 5 Mad. 387
Purchaser of part

of mortgaged property without notice — Suit for sale
of ivholc property iji satisfaction of mortgage —
Marshalling — Apportionment. The equities which
apply to a puisne incumbrancer in the marshalling
of securities apply also to a bond fide purchaser
for value, without notice, of a portion of proper-
ty the whole of which was subject to a prior in-
cumbrance. Tulsi Bam v. Munnoo Lai, 1 W. R.
353 ; Xotca Koowar v. Abdool Buheem, W. B. 1864,
374 ; Bishonath Mookerjee v. Kisto Mohun Mooker-
jee, 7 W. R. 4S3 ; and Khetoosee Cherooria v. Banee
Madhub Doss, 12 W. B. 114, referred, to. The mort-
gagees of two properties, one of which had, subse-
quently to the mortgage, been purchased for value
bond fide, by one who had no notice of the incum-
brance, brought a suit to enforce their hen against
both the properties originally owned by the mort-
gagor, impleading as defendants both the mort-
gagor and the purchaser. Held, that, while there
was no doubt, that, if the purchaser was compelled
to pay more than the share of the mortgage-debt
apportioned on the property purchased by him, he
would be entitled to contribution, yet, in a suit so
framed and having regard to the array of parties,
such an apportionment could not be made at the
stage of second appeal. Rodh I\Ial v. Ram Hakakh
I. Ii. R. 7 All. 711

Bight of creditor

to realize entire debt from one parcel of land mort-
gaged. T, in execution of a money-decree, brought
to sale and purchased certain laud of <S in 1875,

( 8505 )

DIGKST OF CASES.

( 8506 )

MORTGAGE— con^c?.

6. MARSHALLING— co>i«(i.
and remained in possession till 1879. In 1874 F
obtained a decree against S, whereby the lands
purchased by T and other lands of S were declared
liable for a mortgage-debt of Rl, 802-8-0. In 1879
T", in execution ot this decree, attached and brought
to sale and purchased the lands in T's possession.
Held, in a suit by V to eject T, that V was entitled
to recover the lands unless T paid the whole of F's
decree-debt. Timmappa v. Lakhsmamma

I. L. R. 5 Mad. 385

9. Right to proceed

against several properties — Suit on mortgage-bond
— Purchase of one property by mortgagee at inade-
quate price where it was supposed to be subject to
mortgage lien. In a suit to recover principal and
interest on a bond which mortgaged the obhgee's
share in three villages, K, S, and P, the defence was
that plaintiii had paid himself by becoming the pur-
chaser at a sale in execution of another decree of the
obhgee's rights in K at a price inadequate to the
fair value. It was found that, at the sale in ques-
tion, the bids were made on the understanding that
the property was burdened with the plaintiff's bond
debt. Held, that as plaintiff chose to give out to the
world of buyers that he intended to burden the
village K with the payment of the whole sum due
to him, and took advantage of the lowness of the
bids to buy the iDroperty himself he could not now
be allowed to proceed against the other properties.

ByJONATH SaHOY v. DoOLHUN B1SWAN.4.TH KOOER

24 W. R. 83

10. Charge on vari-

oils properties — Mortgagee as purchaser of equity of
redemption in part of mortgaged property. Pro-
perty which is the subject of a mortgage when
sold in satisfaction must be sold as a whole and not
piecemeal at the pleasure of the mortgagee, espe-
cially when he has become owner of the equity of
redemption in part. The proper course is to make
an inqu ly int 1 the relative values of the pr^iperties
included in the mortgage and to burden each with a
proportionate share of the debt. It must not be
assumed that the Government assessment repre-
sents the true value of estates. Kishex Per tab
Sahee Bahadooe v. Lalla Nund Coomar Singh
Paeray . . . . 25 W. R. 388

11. Charges on mort-

gages of di^erent shares of same property — Priority-
Form of decree. In certain lands A held an 8-annas
share and B and C each a 4-annas share. A having
mortgaged his share to G, the respondent took a
mortgage of the whole estate, and afterwards the
appellant took a mortgage of B's share and half of
A^s share. Subsequently, the respondent purchased
the equity of redemption of the entire estate, the
amount of the purchase- money being more than
sufficient to pay off the first and second mortgages.
Ueld, that the appellant was entitled to have an
apportionment of the amounts covered by the
different mortgages made and to have an 8-annas
share in the land put up for sale, unless the res-
pondent was willing to pay off his mortgaged-debt.

MORTGAGE- con<rf.

6. MARSHALLING— coTiirf.

Rule of apportionment and form of decree set out.
Gttnga Naeain Sen v. Hurris Chunder Chang-
oars 6 C. L. R. 336

12. Apportionment

prejudicing third parties — Transfer of Property
Act {IV of 1S82), s. SI. The principle of marshal-
ling cannot be exercised to the prejudice of third
parties. Burnes v. Racster, 1 Y. <fc C. C. C. 401,
and 'Bugden v. Bignold, 2 Y. <t- C. C. C. 377, fol-
lowed. S. 81 of the Transfer of Property Act is
applicable only where the second mortgagee has
no notice of the prior mortgage. The principle of
apportionment laid down in Gunga Xarain SeJk
V. Hurrish Chunder Changdars, 6 C. L. R. 333,
referred to. Satish Chunder ]Muker.ji v. Gopai.
Chunder Chuckerbutty . 2 C, W. N. 397

13. Charges on seve-
ral properties. It appearing that the mortgagee
dehberately abstained from executing his decree
against eleven properties which stili remained in the
possession of the mortgagor, but proceeded against
the one property which had passed out oi the 'mort-
gagor's posbession, the mortgage-debt was directed
to be apportioned between the 12 properties, and
the mortgagee was not to be allowed to take out
execution against the property which had passed
out of the mortgagor's possession, except for the
amount which should be apportioned to such pro-
perty, without satisfying the Court that he had
made every possible effort to execute the remainder
of his decree against the other eleven properties.
Rasi Dhun Dhur v. Mohesh Chunder Chowdhry

I. L. R. 9 Gale. 406 : 11 C. L. R. 565

14.

Charges on

parate mortgaged properties. One of two mouzahs
upon a mortgage of which .4 had obtained a decree
with an order for sale of the mortgaged properties
was attached in execution of another decree and
sold subject to the first decree. .4 became the pur-
chaser, and now sought to execute his decree bv the
sale of the second mouzah, claiming to charsie his
entire debt upon that village. Held, that he was
bound to give credit for the proportionate share of
the debt assignable to the first mouzah, and en-
titled only to execute his decree against the second
village for the amount chargeable thereon. Azimitt
All Khan v. Jowahir Singh, 13 Moo. 1. A. 404,
cited. G OSS YEN Luchmee Narain Poori v.
BicRAM Singh . . . 4 C. L. R. 294

Yakoob Ali Chowdhry v. Ram Doolal

13 C. L. R. 272

15. — By a mortgace-

deed, dated the 24th January 1878, S and V, two^of
three brothers constituting an undivided family,
jointly mortgaged to the plaintiff B a part of the
family property. On the 2Sth July 1S7S, S alone
further mortgaged to the plaintiff "for a fresh ad-
vance a portion of the propcrtj' already mortgaged.
Subsequently the three brothers effected a partition
among themselves of all the undivided property
and the property jointly mortgaged by S and V fell.

( 8507 )

DIGEST OF CASES.

( 8508

MQ-RTGAGBcontd.

6. MARSHALLING— coTiti.
along with other property, to the share of V and the
third brother iV. In 1881 the plaintiff B sued S
on the second of the above mortgages, viz., that
of the 28th .July 1878. He obtained a decree, and at
the sale held in execution of that decree himself
purchased the property comprised in that mortgage.
In the meantime, on the 27th January 1882 and on
the 6th December 1883, V and N respectively
mortgaged with possession to the defendant M por-
tions of the land comprised in the first mortgage of
the 24th January 1878. In 1883 the plaintiff filed
the present suit upon his first mortgage of the 24th
January 1878, claiming to recover R 316-14-0 from
S and V personally. He also prayed that the defend-
ant M, who had been in possession of the property
in dispute, should be prevented from obstructing
him in selling the property. S and V did not ap-
pear. The third defendant M alone appeared and
contended (inter alia) that the plaintiff, having pur-
chased part of the lands comprised in the mortgage
now sued upon in execution of the decree obtained
by him upon his second mortgage, could not now
seek to burden the remaining lands included in the
mortgage with the whole of the mortgage-debt, but
that a proportionate part of that debt must be satis-
fied. Held, that the plaintiff could not recover the
first mortgage-debt from the remaining lands with-
out deducting a proportionate part of that debt. A
mortgagee will not be allowed without special rea-
son deliberately to execute his decree exclusively
against one of the owners of the equity of redemp-
tion for the whole debt. Ram Dhun Dlmr, v. Mohesh
Chunder Chowdhry, 1. L. R. 9 Calc. 406, approved.
MoRO Raghtjnath v. Bai.a.ti Trimbak

I. L. E. 13 Bom. 45
16. Transfer of Pro-
perty Act, 1882, s. 81— Marsh-ailing— Creditors of co-
parcenary and separate creditors. Suit by the
adopted son of the obligee (deceased) of a hypotheca-
tion-bond to recover principal and interest due on
the bond agamst the land comprised in the hypothe-
cation. Defendant No. 1, the obligor of the bond,
had executed it as manager of a joint Hindu family
of which defendant No. 2 was a member and for the
rightful purposes of the family. The family subse-
quently became divided and the hypothecated pro-
perty was divided between defendants Nos. 1 and 2.
Defendant No. 1 afterwards hypothecated part of
his share for a private debt to defendant No. 3,
who having sued on his hypothecation and brought
the land to sale in execution became the purchaser.
The District Munsif passed a decree for the plaintiff
against which defendants Nos. 2 and 3 preferred
separate appeals. The District Judge on appeal
passed a decree directing that the plaintiff should
first proceed against all the property which was not
subject to the hypothecation to defendant No. 3,
including the share of defendant No. 2. Defendant
No. 2 preferred a second appeal. Held, that, as
the plaintiff and defendant No. 3 were not credi-
tors of the same person having demands against
the property of that person, no case for marshallintr
arose, and consequently that the direction of the

MORTGAGE— conffZ.

6. MARSHALLING— con<rZ.
District Judge was wrong. Gopai.a v. Saatina-
THAYYAN . . I. L. R. 12 Mad. 255

1' • Transfer of Pro-

perty Act {IV of 1882), s. 78— Priority of mort-
gages— Gross negligence— Registration. A mort-
gagee at the request of the mortgagors returned to
them their certificate of title to the mortgaged pre-
mises to enable them to raise money to pay off his
mortgage. This mortgage was duly registered.
The mortgagors, who remained in possession of the
mortgage premises throughout, having shown the
certificate to a third person whom they informed of
the existence of the first mortgage and borrowed
R400 from him, subsequently informed him that the
first mortgage was paid off, delivered the certificate
to him, and executed to him a mortgage of the same
premises to secure the sum of R400 and a further
sum of RSOO : — Held, that, though the second mort-
gagee had been wanting in caution, yet since he had
been thrown off his guard by the conduct of the
first mortgage ui returning to the mortgagors their
certificate of title, the second mortgagee was entitled
to priority in respect of his security over the first
mortgagee. Damodara v. Somasundara

I. L. R. 12 Mad. 429

18.

■ Transfer of Pro-
perty Act {IV of 1882), s. 78— Priority of mort-
gages— Gross negligence — Registration. On the 20th
of February 1888 defendant No. 1 executed a
mortgage in favour of the plaintiff company. De-
fendants Nos. 2 and 3 bound themselves as sureties
for the due payment of the mortgage amount on de-
fault by the mortgagor. This mortgage had not
been registered at the date of the execution of the
mortgages next referred to. On the 27th of April
1888 the secretary of the plaintiff compan}' handed
over to defendant No. 1 most of the title-deeds
which had been delivered to the plaintiff company
on the execution of the mortgage, and defendants
Nos. 1 and 3 undertooii that they would raise a loan
thereon and discharge the debt due to the plaintiff
company, or return the title-deeds if they failed in
raising the loan. On the 20th April 1888 defendant
No. 1 deposited the title-deeds -udth defendant No.
4, and executed a mortgage to her for R 4,000 ; and
on the 7th May 1888 he executed an instrument
creating a further charge in her favour for R 1,000.
These two sums were applied b}' defendant No. 1 to
his own use, and not in discharge of the prior mort-
gage. The mortgages to defendant No. 4 described
the mortgaged premises as being then free from in-
cumbrances. Held, that tlie plaintiff company had
been guilty of gross negligence in letting the title-
deeds out of their possession, and that the mort-
gages of defendant No. 4 had accordingly priority
over the mortgage to the plaintiff company.
Madras Hindu Union Bank v. Venkatrangiah
I. L. R. 12 Mad. 424
19. Transfer of Pro-
perty Ad {IV of 1882), ss._ 3, 78, 101— Priority
of mortgages — Gross negligence — Extinguishment
of charges — Registration Act {III of 1877), ss. 17

( 8509 )

DIGEST OF CASES.

( 8510 )

MORTGA GE— cojiR

6. MARSHALLING— con^^Z.
{d), 48 — Notice by rcgi.strafion — Merger. In a suit
for the declaration of the priorities of mortgages
and for foreclosure, it appeared that the mortgaged
premises had been purchased by the mortgagor from
the second defendant and others in 1878, under a
conveyance containing a covenant that they were
free from incumbrances, and the mortgagor then re-
ceived, inter alia, a Collector's certificate which was
recited in another title-deed also handed over to her.
The premises were mortgaged to defendant No. 2,
who was an experienced sowcar in 1879, and to the
plaintiff company in 1883, and again in 1884, and
-were conveyed absolutely by the mortgagor to de-
fendant No. 2 in 1886. The mortgagor executed a
rent agreement to the plaintiff company on the
•occasion of each of the mortgages of 1883 and 1884.
The above mortgages were registered, but the plaint-
iff company and defendant No. 2 had no notice at
the respective dates of their mortgages and convey-
ance of any previous incumbrance. The plaintiff
company received the title-deeds of the estate from
the mortgagor (but not the Collector's certificate)
•on the execution of the mortgage of 1883 ; the
second defendant alleged that he had held them
under a prior incumbrance which was consolidated
in the mortgage of 1879, and that before the execu-
tion of that mortgage the mortgagor had obtained
them from him for the purpose of obtaining a Col-
lector's certificate, and had told him that the
Collector had retained them, in order to account for
their not being replaced in his custody. Held,
b5^ the lower Court (Shephard, «/.), that apart from
the question whether the mortgage of 1879 had been
extinguished by the conveyance of 1886, that the
conduct of defendant No. 2 in permitting the title-
deeds to remain in the possession of the mortgagor
amounted to gross negligence M'ithin the meaning of
the Transfer of Property Act, s. 78, and that the
registration of the mortgage to defendant No. 2 did
not affect the jjlaintiff company with constructive
notice of its existence, and that accordingly the
subsequent mortgages to the plaintiff company
were entitled to priority. Held, on appeal, Collins,
C.J., and Handlev, ,/., (i) that the plaintiff com-
pany were not affected with constructive notice of
the mortgage of the second defendant by reason of
its registration or of their failure to search the
registry or to inquire after the Collector's certi-
ficate ; (ii) that the second defendant, not having
given a reasonable explanation of his conduct in
leaving the title-deeds with the mortgagor four years
after his mortgage, lost his priority by reason of his
gross neglect under the Transfer of Property Act, .s.
78, apart from the circumstances raising a suspicion
of fraud on his part. Quaere : Whether the ca<e
might not have been decided against the second
defendant on the ground that his mortgage was
merged in the conveyance of 1886. Sh.\n Maun
M.XTLL V. Madras Building Company

I. L. R. 15 Mad. 268

Affirming the decision in ]\Iadras Euildino
•Company v. Rowlandson I. lu R. 13 Mad. 383

MORTGAGE-cowffi.

6. MARSHALLING— co«/d.

20.

— Notice of prior

mortgage to subsequent mortgagee — Doctrine of mar-
shalling, applicability of, to mortgages in the mofussil.
Before the extension of the Transfer of Property
Act, 1882, to the Bombay Presidency, where two
properties had been mortgaged to one person, and
one of them was subsequently mortgaged to another
person with notice of the former mortgage : — Held,
(Jardine, J., dissenting), that such subsequent
mortgagee had an equity to call for a marshalling
of the securities in his favour so as to require the first
mortgagee to proceed to realize his security in the
first instance out of the property not mortgaged tq
the second mortgagee. The English doctrine of
marshalling of securities applies to mortgages in
the mofussil. Chunh-al Vithaldas v. Fulchand
I. L. R. 18 Bom. 160

21. Tran.?fer of Pro-

perty Act (IV of 1882), s. 81 — Notice of mortgage —
Registration. Mere registration is not " notice "
within the meaning of s. 81 of the Transfer of Pro-
perty Act (IV of 1882). Shan Maun Mull v.
Madras Building Company, I. L. B. 16 Mad. 268,
approved. Lahshman Das Sarupchand v. Dasrat,
I. L. R. 6 Bom. 168, dissented from. It is a
notice at or before the time of mortgage which
under the terms of s. 81 alone negatives the right
conferred by that section. A purchaser at an exe-
cution sale under the second mortgage, whether he
be the original mortgagee or not, purchases, not only
the right of the mortgagor, but all the rights of the
mortgagee acquired up to the sale, including the
right to insist upon the plaintiff marshalling his
securities, and there is nothing in s. 81 or elsewhere
to destroy the right of marshalling by a notice given
subsequent to the mortgage. Inderdawan Per-

SHAD V. GOBIND LaLL ChOWDHRY

I. L. R. 23 Calc. 790

22. Mortgage — Szibse-

queni mortgage to another person of part of the mort-
gaged property — Notice to puisne incumbrancer —
Transfer of Property Act {IV of 1882). Defendants
Nos. 1 and 2 mortgaged three properties, viz.,
A, B, and C, to the plaintiff, and afterwards mort-
gaged one of them (A) only to one P. Subsequent-
ly the plaintiff obtained a money decree against
defendants Nos. 1 and 2 in respect of another debt
and in execution attached and sold their equity of
redemption in C and purchased it himself, thus be-
coming full owner of C, which he then sold to an-
other, person for RIOO. P sued on his mortgage and
obtained a decree, and in execution property A was
sold to defendant No. 3. Subsequently tlie plaint-
iff sued to recover his debt by the sale of properties
A and B only. Defendant No 3 claimed that the
securities should be marslialled, and that tlie debt
should be apportioned, and that property C should
bear its proportion of the debt. Held, that the thii-d
defendant was entitled to have the debt apportioned
and that property C should bear its proportion of
the debt. When the plaintiff purchased the equity
of redemption in C, he purchased it subject to its

{ 8511 )

DIGEST OF CASES.

( 8512 )

MOBTG AGE— con<(?.

G. MARSHALLING— cone W.
due proportion of the mortgage-debt due to himself.
On his purchase the debt to that extent ceased to
exist and the debt due to him on liis mortgage was
reduced by that amount. The proportion of the
debt thus wiped out depended on the proportion of
the value of property C to the rest of the mortgaged
property. He'd, also, that the third defendant had
a right to have the securities marshalled. That
right extends to a purchaser, and is not confined to
a puisne incumbrancer. Rodh Mai v. Earn HaraJch,
I. L. R. 7 All. 711, followed. Held, also, that the
fact that the third defendant had notice of the
plaintiii's mortgage did not affect his right to have
the securities marshalled. The question of notice
was immaterial prior to the passing of the Transfer
of Property Act. Chunilal Vithaldas v. Fidchand,
I. L. R. 18 Bom. 160, followed. Lakhmidas
Ramdas v. Jamnadas Shankarlal

I. L. R. 22 Bom. 304

23.

Transfer of Pro-

perty Act {IV of 1882), s. 82 — Purchase by mort-
gagee at auction, of portion of the mortgaged property —
Effect of such purchase in reducing the mortgage-
debt. When a mortgagee buys at auction the equity
of redemption in a part of the mortgaged property,
such purchase has, in the absence of fraud, the effect
of discharging and extinguishing that portion of the
mortgage debt which was chargeable on the pro-
perty purchased by him, that is to say, a portion
of the debt which bears the same ratio to the
whole amount of the debt as the value of the pro-
perty purchased bears to the value of the whole of
the property comprised in the mortgage. Lakh-
midas Ramdas v. Jamnadas Shankar Lai, I. L. R.
22 Bom. 301, followed. Nand Kishore v. Hariraj
Singh, I. L. R. 20 All. 23 ; and Sumera Kuar v.
Bhagwant Singh, All. Weekly Notes (1895) 1 ; and
Chunna Lai v. Anandi Lai, I. L. R. 19 All. 196,
considered. Mahahir Prasad Singh y. llacnaghten
I. L. R. 16 Calc. 682 ; Azmat Ali Khan v. Jawahir
Singh, 13 Moo. 1. A. i04 ; and Mahtab Singh v.
Misri Lnl, 2 Agra 88 ; referred to. Bisheshttr
Dial v. Ram Sarup . I. L. R. 22 All. 284

7. TACKING.

1. Principle of tacking— Pitr-

chase of equity of redemjMon — English law.
In 1840 .4 mortgaged certain lands to B, which he
had granted in patni at a rent of R145. Subse-
quently in September 1844 A granted a fresh patni
at a reduced rent of R90 ; and on the 9th October
1844 A mortgaged the same lands to C. In 1856 C
obtained a decree for the redemption of the mort-
gage to B, and he paid off the debt to B ; but it did
not appear that he took an assignment of the mort-
gage for the purpose of keeping it on foot as a
security against incumbrances created by A subse-
quently to the date of that mortgage, and prior to
that of the mortgage to himself ; and in 1862 he
Dbtained a final decree for foreclosure against A.
In a suit by 0 to set aside the lease of September
1844 : — Held, that it was valid and binding upon

MORTGAGE— coTiW.

7. TACKING— contd.
him. Semhle : The English principle of tacking-
does not apply to mortgages of land in the mofussil.
Gaur Narayan Mazumdar v. Braja Nath
KuNDU Chowdhry

5 B. L. R. 463 : 14 W. R. 491

2. English law of tackini?.

The English law of tacking is not recognized in the
Courts of this country. Udaya Chandra Rana
V. Bhajahari Jana . 2 B L. R. Ap. 45

Odoy Churn Rana v. BROJOHtrRY Jana

11 W. R. 13a

3. Redemption. The-

owner of a house in 1861, in consideration of R190,
mortgaged it to the defendant, and put him into-
possession. The mortgage-deed needed no regis-
tration, and was not registered. The mortgagor
next mortgaged the house in 1873 to the plaintiff for
R300 by a deed duly registered. He again in 1874
borrowed on the same security a further sum of
R 500 from the defendant, and executed in his favour
a deed of mortgage which was duly registered. The-
plaintiff in 1876 sued the mortgagor for possession
and obtained a decree, the execution of which the-
defendant resisted. The jjlaintiff now sued the de-
fendant to eject him, and to obtain possession of.
the mortgaged property until payment of the-
amount due on his mortgage. The defendant
denied the plaintiff's mortgage and set up his own
two mortgages, and claimed to be paid the amount
due on both of them before he could be called upon
to render up possession. Held, that the English
doctrine of tacking was of so special and technical
a character, and so little founded on general prin-
ciples of justice, that it ought not to be held appli-
cable to the mofus&il of Bombay, but that the ob-
ligations arising out of successive mortgages should
be discharged in the order of their date. Held,
consequently, that the defendant's right as against
the plaintiff was either to redeem the plaintiff's
intermediate mortgage, or else to hold the mort-
gaged property until his own first mortgage was re-
deemed by the plaintiff ; but that the defendant
could not claim to retain possession, as against the
plaintiff, until his second mortgage, as well as his-
first, was paid off, since plaintiff's mortgage was
prior in date to, and therefore was to be preferred^
before the second mortgage of the defendants-
Narayan Venkoba v. PanduranOt Kamat

I. L. R. 7 Bom. 526

Redemption. The mortgagor

of an estate gave the mortgagee four successive
bonds for the payment of money, in each of
which it was stipulated that, if the amount were
not paid on the due date, it should take priority of
the amount due under the mortgage, and redemp-
tion of the mortgage should not be claimed until it
had been satisfied. The representative in title of
the mortgagor subsequently sued the mortgagee for
possession of such estate on payment merely of the
mortgage-money. Held, that, although such bonds
did not in so many words create charges on sucb

( 8513 )

DIGEST OF CASES.

( 8514 )

IIORTGAGE contii.

7. TACKING— cojicW.
estate, yet inasmuch as it appeared from their
terms that it was the intention of the parties that
the e(|uity of redemption of such estate should be
postponed until the amount of such bonds had been
paid, the representative in title of the mortgagor
"\vas not entitled to possession of such estate on pay-
ment merel}' of the mortgage-mo'iey. Allu Khan
f. RosHAN Khan . " . I. L. R. 4 All. 85

5. Charge — Redemplion — Further

■charge. The mortgagor of an estate gave to
the mortgagee, subsequently to the date of the
■mortgage, two successive money-bonds, in each of
which it was stipulated, if the amount were not paid
on the due date, it should take priority of the
amount due under the mortgage, and that redemp-
tion of the mortgage should not be claimed until the
bond had been satisfied. The assignee of the equity
•of redemption sued for possession of the estate on
payment merely of the mortgage-money. Held,
that the two subsequent bonds did not create a
further charge on the mortgaged premises, al-
though they would prevent the original mortgagor
from redeeming without paying tiieir amounts.
Hari Mahadaji Savaekar v. Balambhat Rauhu-
NATH Khare . I. L. R. 9 Bom. 233

Subsequc7U agree-

ment— Covenant to pay an additional sum — Charge —
Compromise. In a suit on a mortgage, dated 1878,
it appeared that the premises had been mortgaged
in 1874, but the mortgagor had been left in pos-
session under a lease ; and that a suit brought
by the mortgagee (on the rent reserved by the lease
falling into arrears) was compi'omised in 1877 on the
terms that R 3,680 should be paid together with the
amount secured by the mortgage of 1874. 'I'he in-
strument of compromise was not registered, and the
amount was not paid. Held, that the plaintifi's
mortgage was subject to the mortgage of 1874 only,
and not to the arrangement comprised in the com-
promise. Qucere : \\ hether the compromise would,
if registered, have charged the land with R 3,680, or
whether its effect was merely to make the equity of
redemption conditional on payment of that amount
in such a manner as not to atiect the rights of the
subsequent mortgagee. Unni v. Nac^ammal

I. li. R. 18 Mad. 368

8. REDEMPTIOX.

See Civil PRocEDtiRE Code, 18S2, s.
257A . I. L. R. 31 Bom. 552

(«) Right of Redemption.

1. Essential characteristic of

mortgage — Agreement loaiving right to redeem.
Where a document is, on its face, a mortgage, the
right to redeem is so much an essential as not to be
variable by agreement. The question of intention
extra the document does not therefore arise. Sama-
THAL V. Mathoosei Kamatchi Amma Boyi Saib
Avergul .... 7 Mad. 395

VOL. III.

MORTGAGE— con/rf.

8. REDEMPTION— <:on<rf.
[a) Right of Redemption — contd.

2. Usufructuary mort-
gage—.4ltcration of original transaction. AVhen
the original transaction is an usufructuary mort-
gage, the mortgagee is entitled to nothing beyond
the repayment of his principal and interest froni the
usufruct of the property. The Court will not allow
additional advantages to be obtained through the
necessity of the debtor, by the conversion of a
mortgage into a transaction of a different nature.
Once a mortgage always a mortgage, is a principle
not to be departed from. Consequently an estate
mortgaged is always redeemable. Kaseenacth v.
Bheekaree Loll. Tewaeee Loll r. Kassee-
NAUTH W. R. F. B. 79

AsAPAL Singh v. XrNKoo Singh . 3 Agra 216

3. Right to get back land on

deposit in usufructuary moi'tgage — Bmg.
Beg. J of 179S — Diviand of land in excess. The
mortgagor under a zur-i-peshgi is entitled, under
s. 2, Regulation I of 1798, to demand back his
land immediately after making his deposit. If by
mistake or otherwise he demands more land than is
comprised in the mortgage, that is not a matter
which can justify the mortgagee in keeping posses-
sion of land which is in fact comprised in it. Mo-
HTTN L.4L V. Ali Afzcl W. R. 1864, 219

4. Objection to redemption —

j Purchaser who has not paid purchase-money. In a

I suit brought to redeem the purchased property, the

I mortgagee cannot avail himself of the objection that

j the full amount of purchase-money has not been

! paid. The mortgagee has only the right to be

I satisfied that the person claiming redemption is not

a stranger, but one to whom the equity of redemp -

tion has been transferred by a bond fide sale.

Heeea Singh v. Ragho Nath Schai. Bhtrth

Singh v. R.agho Nath Suhai . 3 Agra 30

5. Deposit giving no right to
redeem— Be7«/. Reg. 1 of 1798— Bcng. Reg. XV 11
of 1S06, s. 7. Where muney was paid into Court by
a person alleged to be a mortgagor of certain pro-
perty after notice of foreclosure, without any actual
restriction being placed on its being paid over to the
alleged mortgagee, but the payment was made with
a notice in these words : "I have shown the mort-
gage to be false and fraudulent, and to set aside the
kobala and to get back the money I shall hereafter
institute a regular suit ; " it was held that Regula-
tions I of 1798 and XVII of 180G, s. 7, did not apply
to such a case. Such payment gave no right to re-
deem Abdool R.ahaman r. Kistolal Ghose

B. li. R. Sup. Vol. 598 : 6 W. R. 225

6. ■ Mortgage by conditional

sale— Sale of land and agreement for rtpurcha<e —
Right to redeem — Intention — Bcng. Reg. 1 of 1798
and X I'll of ISOr.. A deed of sale of land for value
was accompanied by a deed of agreement between
the parties for purchase back by the vendor of the

12 p

( 8515 )

DIGEST OF CASES.

( 8516 )

MORTGAGE— co/i<cf

8. REDEMPTION— corif(f.
(a) Right cf Redemption — contd.
land on payment by him of money to the vendee on
a future date fixed. The deeds were followed by
transfer of possession to the vendee, and his receipt
of the profits. The vendor did not exercise his
right of repurchase, but, after many years, gave
notice of his intention to redeem, and brought this
suit to enforce his right of redemption as upon a
mortgage by conditional sale. It was held that
oral evidence for the purpose of ascertaining the
intention of the parties to the deeds was not ad-
missible, being excluded by s. 92 of the Evidence
Act, and the case had to be decided on a consi-
deration of the documents themselves with only
such extrinsic evidence of circumstances as might
be required to show the relation of the written lan-
guage to existing facts. Held, (i) that there were
contained in the deeds indications that the parties
intended to efi'ect a mortgage by conditional sale.
In such a mortgage it is not n'ecessary that the mort-
gagor should make himself personally liable for the
repayment of the loan, (ii) The equity of re-
demption was rendered applicable to a mortgage of
this class by the effect of the Regulation XVH of
1800. The Transfer of Property Act, 1882, s. 58,
defines a mortgage of this character, stating the
already existing law and practice regarding it, but
owing to its date did not apply in this instance. (i;i)
Redemption had been rightly decreed in the Courts
below, (iv) Whether such a mortgage would be
redeemable under the Regulation law independently
of intention indicated in the instrument was not a
point calling for decision. Indications in this case
appearing in the deeds were — (a) words in the
agreement for repurchase similar to those in Regu-
lation I of 1798, relating to the deposit of mortgage
money in the Treasury, giving the like power to
deposit ; [h) the inclusion in the present security of
a sum due on an account, open to be increased,
other than the price fixed for the repurchase ; and
other matters. Bhagwan Sahai v. Bhagwan Din,
I. L. R. 12 All. 3S7 : L. B. 17 I. A. 98, distin-
guished. Balkishek Das v. Legge

I. L. R. 22 All. 149

L. R. 27 I. A. 58

4 C. W. ]S-. 153

Affirming decision of the High Court in

I. L. R. 19 All. 430

7- Beng. Reg. XVII

of 1806, ss. 7, S. In the part of India where Bengal
Regulation XVIT of 1806 is in force, the right to
redeem a mortgage by conditional sale depends
entirely upon it, whatever may be the true con-
struction of the terms of the condition in regard to
payment of interest. Within a year after notifi-
cation of a petition for foreclosure a mortgagor de-
posited the principal debt, and interest for the last
year of the mortgage term, which had expired. In-
terest for prior years of the term had not been paid ;
but this, according to the mortgagor's contention.

MORTGAGE^-ow^rf.

8. REDEMPTION— co««rf.
(a) Right of Redemption — contd.
was, by the terms of the condition, treated as a se-
parate debt. Held, that, as the mortgagor had not
deposited the interest due on the sum lent, required,
according to s. 7 of the Regulation, where, as here,,
the mortgagee had not obtained possession, and a&
the year of grace had expired, the conditional sale-
had become conclusive under s. 8, involving the dis-
missal of the mortgagor's suit for redemption.
Mansur Au Khan v. Sarju Prasad

I. L. R. 9 All. 20
L. R. 13 I. A. 113

Mortgage hy con-
Transfer of Property Act.

ditional sale before

Suit, in 1889, to redeem a mortgage of 1880, which,
contained a provision that, if the mortgage-money
was not paid in March 1882, the mortgage premises-
should become the absolute property of the mort-
gagee. Held, that the plaintiff was entitled to re-
deem. Ramasanii i?astrigal v. ^'aitiiyapianaiiakany
I. L. R. 4 Mad. 179, explained and followed.
Venkata.subbayya v. Venkayga

I. L. R. 15 Mad. 230

8(a). Mortgage becoming sai&

if not redeemed in certain time— Madras law •
of mortgage — Beng. Reg. XVII of 1S06. In a suit
instituted in 1853 to redeem a mortgage containing
a clause making it an absolute sale in default oi
redemption by a certain date : — Held, that, in the-
Madras Presidency, effect must be given to that
clause, the Regulation XVII of 1806 not being ap-
plicable. Pattabhiramier v. Venkatarow Naick-
EN . . 7 B. Ii. R. 136 : 15 "W. R. P. C. 35

13 Moo. I. A. 560

Right to redeem by deposit

of principal — Possession of mortgagee. On
question of a right of a mortgagor to redeem by
deposit of the principal sum due only, the length of
possession bj' the mortgagee is immaterial. Ab-
DULLA Khan v. Upendra Chandra

6 B. Ii. R. Ap. 53

s.c. Abdool Khan v. Upendra CarxDERBHrT-
tacharjee .... 14 W. R. 278

10. Time for redemption—

iStipulation for payment hy instalments. A mort-
gage-deed stipulated for the liquidation of a moiety
of the debt by the usufruct of certain land for seven
years, and, as to the other moiety, stipulated for its-
repayment by instalments in five years, and, in
default, for its liquidation by the possession and the
usufruct of the same land being continued and
enjoyed after the expiry of the seven years' term,,
but no further term was created. Held, that the
mortgagor was entitled to redeem at any time after
the exjiiry of the seven years' term. Marana
Ammanna v. Pendyala Perubotulf

I. Ii. R. 3 Mad. 23a

11.

Decree for re-

demption— Execution barred by limitation-second

; 8517 )

DIGEST OF CASES.

( 8518 )

MORTGAGE— co«<^.

8. REDEMPTION— con?(/.

(a) Right of Redemption' — contd.
suit to redeem. In a suit for redemption of a mort-
gage a decree was passed by consent to the effect
that the land was redeemable upon payment of a
certain sum on a certain date, but there was no
direction in the decree that in default of payment
the mortgage be foreclosed. This decree was not
executed. After three years the right, title, and
interest of the mortgagors in the land was purchased
in execution of a decree by the plaintiff, who there-
upon sued the mortgagees to redeem the land.
Held, that the plaintiff was entitled to redeem.
Pekiandi v. Angappa . I. L. R. 7 Mad. 423

12. Omission to execute de-
cree for redemption in time—Effect of fresh
suit for ledemplion. Where a decree for redemp-
tion is obtained, but is not executed within the pre-
scribed period for execution, the mortgagee does not,
by omission of the mortgagor to execute the decree,
cease to be the mortgagee, but the mortgagor or his
representative may still maintain a fresh suit for
redemption. Chaita v. Pueum Sookh

2 Agra 256
13. Suit for redemption — Condi-
tional decree — Failure of mortgagor to pay in ac-
cordance with decree — Subsequent suit for redemp-
tion—Transfer of Property Act {IV of 1SS2) s. 93.
In a suit for redemption of a usufructuary mort-
gage, a decree for redemption was passed condi-
tional upon the plaintiff pajang the defendants
within a time specified a sum which was found
still due to the latter, and the decree provided that,
if such sum were not paid within the time specified,
the suit should stand dismissed. The plaintiff
failed to pay, and the suit accordingly stood dis-
missed. Subsequently he again sued for redemp-
tion, alleging that the mortgage-debt had now been
satisfied from the usufruct. Held, having regard to
the distinction between simple and usufructuary
mortgages, that the decree in the former suit only
decided that, in order to redeem and get possession
of the property, the mortgagor must pay the sum
then found to be due by him to the mortgagee,
and did not operate as res judicata so as to bar a
second suit for redemption, when, after further en-
joyment of the profits by the mortgagee, the
mortgagor could say that the debt had now be-
come satisfied from the usufruct. Having resard
to s. 93 of the Transfer of Property Act (IV of 1S82)
in a suit brought bj' a usufructuary mortgagor for
possession on the ground that the mortgage-debt
has been satisfied from the usufruct, and in which
the plaintiff is ordered to pay something because
the debt has not been satisfied as alleged, the decree
passed against such a mortgagor for non-payment
has not the effect of foreclosing him for all time from
redeeming the property. The decision in Gulam
Hossein v. Alia Rukhee Beebee, 2 N. W. 62, treated
as not binding since the passing of the Transfer of
Property Act. Chaita v. Purun Sookh, 2 Agra
25fi, and Anrudh Singh v. Sheo Prasad, 1. L. B.

MORTGAGE— con^c^.

8. REDEMPTION— con<<f;

(a) Right of Redemption— 'ore'i.

4 All. 481, referred to. Mttham.mad Samiuddin'

Khak v. Maxu Lai. . . I. L. R. 11 All. 386

14, Omission to set

aside decree and sale of mortgaged property under
it — Refusal of redemption. Redemption of a
mortgage was refused, as it appeared that the mort-
gaged property had been sold in execution of a de-
cree against the mortgagor, and that the plaintiff
had neglected and refused to pay that it might be
set aside. Malkarjun bis Shidramappa Pasare
I'. Narh.\ri bin Shivappa . I. L. R. 27 I. A. 216

15. Redemption of mortgaged

land subsequently assessed with revenue.
A mortgagor of lakhiraj land sub.sequently a.ssessed
with Government revenue is not entitled to redeem,
except on payment of the amount paiil by the mort-
gagee to Government fir revenue, with interest ia
addition to the money due under the mortgage.
But in a suit for redemption, in which the mortgagor
deposited before suit the amount of the principal
sum borrowed by him, he is entitled to a decree on
payment into Court of the further sum paid for
Government revenue. Joyprokash Roy v. Oor-
jHAS Jha 3 W. R. 174

16. Attaching creditors, right

of, to redeem— Ch-!7 Procedure Code (Act X of
1S77), ss. 2ir, 2S2, 295. An attaching creditor has
not, as such, any right to redeem a mortgage sub-
sistinti prior to his attachment. Soobhul Chun-
DER Paule v. Nitye Churk Bysack

I. L. R. 6 Gale. 663 : 7 C. L. R. 201

17.

Patnidar, right of, to re-

deem. Terms upon which a patnidar was let in to

redeem stated. Kasimuxnissa Bibee v. Nilratn'a

BosE . . . I. L. R. 8 Caic. 79

9 C. L. R. 173 : 10 C. L. R. 113

18. — Heir of mortgagor, right

of, to redeem — Right of purchaser — Limitation.
Suit to redeem against transferee, or (in alter-
native) to enforce terms of purchase. The form of
mortgage was the usual indigo planter's mortgage,
with power of sale. After heavy losses, the agents
(mortgagees) stopped the factories, and sold them
informing the planter (mortgagor) of the sale, and
suggesting his concurrence. He, in a written ac-
knowledgment, gave reluctant assent : he was not
called on for any formal confirmation or act ; the
mortgagees wrote o.ff the greater part of the debt to
profit and loss, credited the purchase-money, and
closed the account. The purchaser took and re-
tained possession. After two years the mortgagor
died, leaving a will, in which he described his pro-
perty, but did not mention the mortgaged factories.
The conveyance to the purchaser was produced, in
which the mortgagor was made a party, but which
was dated and executed after the mortgagor's
death. It purported to be, not an exercise of the
power of sale, but a transfer of the legal estate by
the mortgagees at the request of the mortgagor : it

12 p 2

( 8519 )

DIGEST OF CASES.

( 8520 )

MOETGAGE— fofl/.f.

8. REDEMPTION— fon/f:?.
{a) Right of Redemption — contd.
was executed by the mortgagees and purchaser.
Held, first, that the mortgagor's heir was not en-
titled to redeem (see also Sreemulmoncy Bcbee
V. Goberdhone Bermono, 2 Ind. Jvr. N. S. 319) ;
also that, on dismissal of the redemption suit, no
terms or conditions could be imposetl on the de-
fendant, who in this case held under the original
contract of pale to which the mortgagor assented.
Held, secondly, that even had the contract included
(as argued for appellant) an undertaking to indem-
nify from liabilities, the payments sought to be
reimbursed were beyond six years, and no fraud was
proved ; therefore as to these the suit was barred.
DoucETT V. Wise . . 2 Ind. Jur. N. S, 280

19.

— Conditional sale
from mortgagee —

— Surety, assignment to.

Right of redemption. On a mortgage of land with
a proviso that in default of repayment of the money
advanced the mortgage should be turned into a
sale, a third party joined as surety, undertaking to
repay the amount advanced if the mortgagor made
default in payment at the stipulated time. Default
was made and the surety paid the money, and took
an assignment of the land from the mortgagee.
Held, that the heir of the mortgagor was entitled to
redeem, and that as against him the surety could not
claim to hold the lands as purchaser. Goraki
Kan.aji v. Nathu bin Appaji . . 1 Bom. 135

20. Assignee of mortgagor,

right of, to redeem— Razinamah — Gat'ndi
tenure — Extinguishment of equity of redemption.
A mortgage-deed of gatkuli land contained a
clause by which the mortgasor agreed, at the ex-
piration of the period for which the mortgage was
made, to give a razinamah of the mortgaged land.
In accordance with this stipulation, the mortgagor
gave a razinamah to Government by which he gave
up all claim to the land, which was then granted to
the mortgagee. Held, that the equity of redemption
of the mortgagor was thereby extinguished. Ranee
VALAD AvAji Mali v. Rama Bai kom Mahadu
Mali 6 Bom. A. C. 265

21.

Puisne mortgagee, right

of, to redeem — Pr /or mortgagee. A puisne mort-
gagee is entitled to redeem from the prior mortgagee
■wiio obtains a foreclosure decree iu a suit to which
the puisne mortgagee is not made a party or from
the purchaser in the foreclosure suit ; and it is im-
material whether the puisne mortgage is or is not
registered, or whether the prior mortgagee at the
date of the suit had or had not notice of the puisne
mortgage. The plaintiff charging the defendants
with collusion sued to eject them, but the Court
found he was only a puisne mortgagee, and one of the
defendants a })rior mortgagee. The Court, hov\ever,
allowed the plaintitf to" change his case, and in the
same suit permitted him to redeem the defendant.

bANEANA KaI.ANA V. ViRTJPAKSHAPA GaNESHAPA

I. li. R. 7 Bom. 146

MORTGAGE— fow/<i.

8. REDEMPTION— cowfrf.
(f/) Right of Redemption — contd.
22. Redemption of

fi.rd mortgage by further mortgage. Held, that a
mortgage contract received as a security for a repay-
ment of loan does not incapacitate the mortgagor
from any other dealing with the property, except^in
defeasance of the right of the mortgagee. Where
therefore a zur-i-peshgi lease had been granted to
the defendant for nine years containing a stipulation
that the mortgagor should not alienate or mortgage
the land : — Held, that a second zur-i-peshgi to the
plaintiff made after the expiration of the nine years'
term, for the bond fide purpose of paying off the
debt due on the first mortgage, was not voidable as
contravening the terms of the first mortgage lease,
and the plaintiff was entitled to sue to redeem the
first mortgage. DooKHrHORE Rai v. Hidayutool-
LAH . Agra F. B. 7 : Ed. 1874, 5

See Mahomed Zakaoolla v. Banee Pershad

1 N. W. Ed. 1873, 135
Sheopal v. Deen Dyat. . . 5 W. W. 145

23.

Purchaser of equity of re-

demption, right of, to redeem— Usufructuary
mortgage folloived by sale — Revival of mortgage by
cancelment of sale — Attachment in execation of
decree. Z mortgaged in 1859 certain immoveable
property, being joint ancestral property, for a term
of five years, giving the mortgagee possession of the
mortgaged property. In 1861 Z sold this property to
the mortgagee, whereupon the sons of Z sued their
father and the mortgagee, purchaser, to have the
sale set aside as invalid under Hindu law, and in
August 1864 obtained a decree in the Sudder Cour^
setting aside the sale. The mortgagee, purchaser,
remained, however, in possession of the property as
mortgagee. In May 1 867, Z having sued the mort -
gagee for possession of the property on the ground
that the sale had been set aside as invalid, the High
Court held that Z could not be allowed to retain the
purchase-money and to eject the mortgagee, pur-
chaser, but must be held estopped from pleading
that that sale was invalid. In November 1867, one
K having caused the property to be attached and
advertised for sale in the execution of a decree which
he held against Z and his sons, the mortgagee ob-
jected to the sale of the property on the ground that
Z and his sons had no saleable interest in the pro-
perty. This objection was disallowed by the Court
executing the decree, and the rights and interests of
Z and his sons were sold in the execution of the
decree, K purchasing them. In 1878 K sued as the
purchaser of the equity of redemption, for the re-
demption of the mortgage of 1859. Held, that K
was entitled to redeem the property. Held, also,
that, the mortgagee not having contested in a
suit the order dismissing his objection to the sale
of the property in execution of X's decree, he
could not deny that K had purchased the rights
and interests remaining in the property to Z and
his sons. Held, also, that the mortgagee had no lien
on the property in respect of his purchase money.

( 8521 )

DIGEST OF CASES.

( 8522 )

MORTGAGE— confc/.

8. REDEMPTION— con/tf.

(n) R GHT ( F RKDKMPrii a—contd.
Hall, also, that it being stipulated in the deed of
mortgage that tho iDortgagee >h.,uld pay the
mortgagor a certain sum annually as '• malikana,"
and the mortgagee not having paid such allowance
since the date of the sale, the plaintiff was
entitled to a deduction from the mortgage- money
of the sum to which such allowance amounted.
Basant Rai v. Kaxauji Lal

I. L. R. 2 All. 455

24. Purchaser of property,

right of, to redeem.- Sv it for eie-jUnent where
there i.s an eqnitnhle lien on the pmperti,: In 1848
B L obtained a decree against R C and R L, and
in 186.S, at a sale in execution of that decree, the
plaintiff-' ancestor purchased the profeity now in
di-pute and took possession. In 1861 one K R sued
the representatives oi R C on a mortgage -bond un-
der which a sum of money was alleged to have been
secured upon the said property, and obtained a de-
cree against the defendants personally which did not
direct sale of the mortgaged property. The plaint-
iff's ancestor bought the property with the know-
ledge of the mortgage. K R in 1868, in execution,
sold the right, title, and interest of her judgment -
debtors in the property to the defendants who paid
R.'5,000 as consideration-money and obtained posses-
sion. In a suit to eject the defendants on the
ground that the latter obtained no title to the pro-
perty by their purchase -.—Hell, that, so far as the
defendants' money had gone to payoff the charge
which A' R had on the land to that extent, they were
entitled to stand in her shoes as an incumbrancer ;
and that the suit, as far as regards the land covered
by the mortgage-bond, must be taken to be a re-
demption suit, and the plaintiff ought not to be
allowed to recover the property without paying the
defendants so much as on "a proper taking of
accouiits might appear to be due to them.
Rames.sup. Pershad Narain' Sison r. Doolee
Chand 19 W. R. 422

25. — Right to redeem sub-ten-

ures purchased by vnovtsa^ee— Acquisition^
by mortgiirjor and mortqugee. Semhh .• Under the
English law, which, in so far as it rests on principles
of equity and good conscience, may properly be '<
applied in India, it is recognized as a general rule
that most acquisitions by a mortgagor enure for the I
benefit of the mortgagee ; and conversely, that {
many acquisitions bj^ a mortgagee &x<:, in like man- }
ner, to be treated as accretions to the mortgaged
property, or substitutions for ft, and therefore' sub-
ject to redemption. But semble : It cannot be {
affirmed that every purchase by a mortgagee, of a {
sub-tenure existing at the date of the mortgage, ,
must be taken to have been made for the benefit of
the mortgagor so as to enhance the value of the
mortgaged property, and make the whole, including
the sub-tenure, subject to the right of relemption
Oil equitable terms, e.g., where there is a mortgage
of a zamindari in Lower Bengal, out of which a patni '•

MORTGAGE— <:cn<r/.

8. REDEMPTION— co«W.
(a) Right of Redemption' — contd.
tenure has been granted, the mortgagee in posses-
sion might buy the patni with his own funds and
keep it alive for his own benefit. An Oudh talukh-
dar granted an usufructuary mortsage of a por-
tion of his talukh, in respect of which there existed
certain subordinate birt tenures. The mortgagee,
having subsequently acquired these birt tenures' by
purchase, did not, as he might have done, keep them
alive as distinct sub-tenures, but treated them as
merged in the talukh. The mortgagor, many years
after, brought a suit for redemption," when the ques-
tion arose, whether upon repaying the sum ex-
pended by the mortgagee in the purchase of the birta
in addition to the amount due on the face of the
mortgage-deed, the plaintiff was entitled to the pos-
session of the estate as then enjoyed by the mort-
gagee : or, whether the latter was'entitled to retain
the birt rights and interests purchased by him as an
absolute under proprietary tenure in subordination
to the talukhdar, and to have a sub-settlement on
that basis. Held, that the plaintiff, on repay-
ment of the original mortgage-debt and on reiru-
br.rsing the defendant the sum expended in pur-
chasing the birts, was entitled to re-enter on the
estate with all the rights and privileges enjoyed by
the latter. KishendattRam r. Mum'taz \i i"Kh vx
I. Ii. R 5 Calc. 198 : 5 C L. R. 213
L. R. 6 I. A. 145

26. Right where mortgagee

has purchased equity of redemption — Act II
of ISoo, constructicm of— Sale of legal and equilahle
rights of j'ldgn.ent-dehtors. CI. 1, s. 1, Act VI of
1855, shows that the statute was designed for the
benetit of creditors, and that it authorized sale of
both the legal and equitable rights of judgment-
debtors. Under this clause, therefore, an equity of
redemption was a kind of property that might be
seized and sold. A, a mortgagee, who takes from B
as security an existing mortgage from C to B, stands
in the same position towards, and is subject to the
same equities in respect of, the mortgagor B,
who has assigned that mortgage to him by way of
sub-mortgage as ^B himself, "a mortgagee, does
to the original mortgagor C. A mortgagee, at a
Slieriff's sale held under a writ of p. fa, sued out by
him upon his mortgagor's bond and warrant to
confess the mortgage-debt, purchased his mort-
gagor's equity of redemption and obtained a con-
veyance thereof from the Sheriff under cl 3. s. 1,
Act VI of 1855. Held, in a suit by the mortgagor
against the mortgagee for redemption of the mort-
gage, that the latter was entitled under that Act
to hold the mortgaged estate against the mortgagor
freed from the equities existing in him preX'ious
to sale and conveyance of his rights and interests
under the mortgage. Toyluckomohcx Tagore v.
Go FUND CnrxDER Sen-

1 Ind Jur. O. S. 128 : 1 Hyde 289
27. Redemption where mort-
gagee has partitioned property— /Mier/ere/ice

( 8523 )

DIGEST OF CASES.

( S524

MORTGAGE— cowifZ.

8. REDEMPTION— con^rf.
(a) Eight of Redemption — conid.
wifh rigid to redeem. A mortgagor's right to redeem
wliat he has mortgaged is indefeasible, and cannot be
interfered with by unauthorized acts of the mort-
gagees, e.g., a batwara entered into by the latter.
MuzHtiR HossEiN V. HrK Peeshad Roy

15 W. R. 353

28.

Alienation by mortgagee

pending foreclosure suit — Efjed of, on. right of
redemption. Where a mortgagee alienates the mort-
gaged property while the foreclosure suit brought by
him is pending, such alienation cannot be allowed to
stand between the mortgagor and those rights to
redeem which that suit in its ultimate issue may
have left open and affirmed to him. Munsoor Ali
Khan v. Oooodhya Ram Khan . 8 W. R. 399

29. Right of purchaser to re-
deem— Effect of sale by mortgagor. ^Vliere a
mortgagor before the expiry of the year of grace and
after sale to a purchaser agreed with the mortgagee
that of the two villages conditionally mortgaged one
should be given to him and a decree of foreclosure
for the other should be obtained by the mortgagee :
— Hdd, that such an agreement could not bind the
purchaser or take away his right to redeem. Jyram
CiR I'. KrishanKishore Chund . 3 Agra 307

30. Clause for conditional sale

— Effect of, on right of redemption. A clause of
conditional sale contained in a mortgage-deed does
not prevent the redemption of the mortgage.
Kanayalal v. Pyarabai . I. L. R. 7 Bom" 139

31. Settlement with mort-
gagee— Effect of, on right of redemption. The
mere settlement of a resumed maafee estate with the
mortgagee does not destroy the mortgagor's right
to redeem, nor does it necessarily make the holding
by the mortgagee a holding adverse to the mort-
gagor's right. OoMRAo Begum v. Nizamoonnlssa

1 Agra 224

32. Bar of right of redemp-
tion— Foreclosure — Accounts. In a suit for re-
demption of a mortgage the Zillah Court declared
the mortgagors (appellants) entitled to redemption,
the mortgagees in possession (respondents) having
fully paid themselves by receipt of rents and profits.
In a special appeal, the Sudder Court reversed the
Zillah Court's decision, on the ground that certain
proceedings, taken by the mortgagees with a view
to foreclosure, had effectually barred the equity of
redemption. Held by the Privy Council, that the
Sudder Court ought not to have decided the case on
the question of foreclosure, because that question,
though raised upon the pleadings, had not been
made one of the issues settled in the Court of first
instance, where alone evidence could be taken ;
that the Court was wrong in treating the proceed-
ings as an efiectual bar to the appellant's right of
redemption ; and that the question of foreclosure
ought therefore to be further fully tried upon an

MORTGAGE— cow^'Z.

8. REDEMPTION— conW.
[a] Rght of Redemption— con'c?.
issue to be regularly settled. MoHUN Lall Sookul
V. GoLUCK Chukder Dctt

1 "W. R. P. C. 19 : 10 Moo. I. A. 1

33. . Condition preventing effect

of right of redemption— Owerot/s condition in
mortgage-deed— Condition thjt after redempition the
mortgagee should continue in possession as per-
petual tenant not enforceable. A condition in a
mortgage, that if the mortgagor redeems the
property the mortgage right should be extin-
guished, but that the property should for ever re-
main in the possession of the mortgagee on his pay-
ing a fixed rent, is a condition which cannot be en-
forced in a Court of Equity. Mahomed Muse v.
JijiBHAi Bhagvan . . I. L. R. 9 Bom. 524

34. Decree for redemption

within six months — Transfer of Property Act
{ly of 1SS2), proviso to s. 93 — Mortgage— Expir-
ation of six months v:ithout payment — Application
after expiration of six months to extend the time
for redemption. In redemption suits the original
decree (passed under s. 92 of the Transfer of Pro-
perty Act), is only in the nature of a decree nisi,
and the order passed under s. 93 is in the nature of
a decree absolute. Under the proviso to s. 93 of
that Act, an application to extend the time for
redemption fixed by the original decree may be
made at any time before the decree absolute is
made. Nandram v. Babaji

I. L. R. 22 Bom. 771

35. Mortgage with proviso

that in ease of non-redemption in a pre-
scribed time it should become a sale— JRnzi-

nanui by mortgagor declaring sale to mortgagee —
Transfer of possession to mortgagee — Execution of
equity of redemption — Subsequent sale by mort-
gagor of equity of redemption. In 1848 B and B
mortgaged a piece of land to V. It was to be
redeemed in eight years, or else to become the abso-
lute propert}' of the mortgagee. It was not re-
deemed ; and in ] 859 B, in whose name the land was
entered in the Government records, executed a razi-
nama in favour of V, and V passed a kabuliat
accepting the land. B and R then became C's
tenants, and were, as such, successfully sued bv him
for rent in 1863. In 1872 F sold the land to N,
who again sold it to the defendant. The plaintiff,
as purchaser from the original mortgagors {B and R)
of their alleged equity of redemption, filecl the pre-
sent suit to redeem the property. Held, that, as the
razinama given bj' V contained no reservation, and
as it was accompanied by a transfer of possession, it
had the effect of a conveyance of all the mortgagor's
rights to the mortgagee. It operated to extinguish
the equity of redemption, notwithstanding any mis-
conception or ignorance on f's part of his rights as
mortgagor. Under the Indian Contract Act (IX of
1872, s. 21), error of law does not vitiate a contract ;
much less will it annul a conveyance after the lapse
of many years unless there has been some fraud ot

( 8525 )

DIGEST OF CASES

( 8526 )

ULO'RTGAG'E—conicl.

8. REDEMPTION— coH<rf.

I
(fi) Right of Redemption — contd. !

iniisreprcsentation and an absence nr nouligonee.
Vishnu Sakharam Phatak i: Kashinaih Ba?u
-Shankar . I. L. R. 11 Bom. 174

36. Eedemption of mortgage

before order absolute — Foreclosure decree —
Order ahsolute — Transjcr of Property Act {I I' of
18S-2), .s. S7. In a foreclosure action the mortgagor
■can redeem at any time until the order absolute is
made under s. 87 of the Transfer of Property Act,
1882. PoRESH Nath Mojimdar v. Ramjodit
MoJUMDAR . . . I. L. R. 16 Calc. 246

Somesh v. Ramkeishna Choavdhrv.

I. L. R. 27 Calc. 705
4 C. W. W. 699

Narayana Reddi v. Papuyya.

I. L. R. 22 Mad. 133

37.

Right to redeem at any-

time prior to the passing of the order abso-
lute under s. 87 — Transfer of Properly Act
(/ r of 1SS2), s. S7. A mortgagor who has obtained
a decree for redemption of his mortgage can pay in
the redemption money and obtain redemption at
any time until an order absolute under s. 87 is made
against him. Poresh Nath Mojumdar v. Raitijodu
Mcjumdar, I. L. R. 16 Calc. 246, and Raham i
llahi Khan v. Ghasita, I. L. R. 20 All. 2:5, re- I
ferred to. Nihali t. Mittar Sen

I. L. R. 20 All. 446

38. ■ Unregistered agreement .

by mortgagor to sell to mortgagee — Sub- \
sequent assignment of equity of redemption to third j
person for value, hut with notice of agreement. In
a suit for redemption filed by an assignee for value
of the equity of redemption against a mortgagee in
possession, it was found that the mortgagor had I
agreed with the defendant to sell the mortgaged pre- j
mises to him, that part of the purchase-money had
been acknowledged as paid, and that the balance
had been tendered in pursuance of the agreement.
It was further found that the plaintiff had taken his
assignment with notice of the above agreement and t
tender. Held, that the plaintiff, having purchased
the equity of redemption with notice as above, was ,
not entitled to redeem. Per Curiam : — The plaintiff \
h iving knowledge of the agreement was put upon
-enquiry to ascertain whether the tender had been
made, and whether there was any objection to his j
purchase on that ground. Adakkalam v. \
'Theethan . . . I. L. R. 12 Mad. 505

39. Time fixed for redemption

—Transfer of Property Act, ss. 92, 93— Applica-
tion to execute the decree. In a suit to redeem a
&anam a redemption decree was passed which pro-
vided that the kanam amount and the value of im-
provements be paid in three months. The decree
amount was not paid within that period, but
Uhe decree-holder applied to execute the decree
«it a later-date. Held, that the application did not

MORTGAGE— cor* /c/.

8. REDEMPTION— coH^rf.
(a) Right of Redemption— coh^c?.
fall under the proviso of s. 9.3 of the Transfer of Pro-
perty Act, and that the decree-holder was not then
entitled to have the decree executed. Poresh Nr:th
Mojumdar v. Ramjodu Mojumdar, I. L. R. 10 Calc.
246, dissented from. Ss. 92 and 93 of the Act ought
to be read together, and the proviso of the latter
section has no application where the mortgagee does
not apply for foreclosure or where the original
decree does not contain the last clause mentioned
in s. 92. Elayadath v. Krishna

I. L. R. 13 Mad. 267

40, liimitation — Date of ac-
crual of cause of action — Mortgage — Transfer of
Property Act {IV of 1SS2), ss. S6 and S7. Held,
that, where a right of pre-emption arises on the fore-
closure of a mortgage under the Transfer of Pro-
perty Act, 1882, the right to sue for pre-emption
accrues, not from the date fixed in the decree under
s. 86 as the date upon which the payment is to be
made by the mortgagor, but from the date on which
the mortgagee obtains an order absolute under s. 87
of the sald^Act. Raghuhir Singh v. Xanda Singh,
All. Weekly Notes llS9h, 134 ; Ali Abbas v. Kalka
Prasad, I. L. R. 14 All. 400; and Poresh ^ath
Mojumdar v. Ramjodu Mojumdar, I. L. R. 16
Calc. 246, referred to. Anwar-ul Haq v. Jwala
Prasad . . I. L. R. 20 All. 358

See BATrL Beg.am v. Mansvr Ali Khan
I. L. R. 20 All. 315

^nd Raham Ilahi Khan v. Ghasita

I. L. R. 20 All. 375

41. Adverse possession — Pos-
session obtained hy mortgagee from Matnlatdar —
Non-payment of assessment hy mortgagor — Payment
by mortgagee— Bombay Land Revenue Code (Bom.
Act V of 1S79), ss. 5r„ 57, 153. In a suit for re-
demption of land mortgaged to the defendant in
1870, the defendant pleaded adverse possession. In
1876 he had obtained a decree for sale which he had
not executed. In 1877, the Mamlatdar being about
to sell the land for arrears of assessment, the defend-
ant paid the amount, and was thereupon put into
possession by the Mamlatdar. He had retained pos-
session ever'since and had continued to pay the afe-
sessment. Held, that the plaintiff was entitled to re-
deem. It did not appear that the land had been
declared to be forfeited by the Collector under
ss 56, 57, and 153 of the Land Revenue Code (Bom-
bay Act V of 1879j. The fact that the defendant
prevented proceedings under s. 56 by himself paying
the arrears of assessment did not make his posses-
sion adverse and did not affect the original relation-
ship of mortuagee and mortgagor between himself
and the plaintiff. The defendant not having exer-
cised his right to sell under the decree of 1870, the
plaintiffs were now entitled to redeem, the sum
found due bv the decree at its date being taken as
res judicata "between the parties. Dasharatha t.
Nyahaichand . I. L. R. 16 Bom. 134

( 8527 )

i)l(jEbT OF CASES.

:» )

8. REDEMPTION— cowfci.

{a) Right of Redemption — contd.

42. Undertaking not to alien-
ate the eqiiity of redemption— 7?;'^/if of ns--
signee of inortgagor — Asr,ignmev.t of the equ!t>/ of
redetnption — Bepayment of mor1gage-deH. Where
a mortgagor undertook that he would not alienate
the equity of redemption, and that the mortgagee
should not be obliged to receive the money from
any one but the original mortgagor -.—Held, that, as
the undertaking absolutely forbade alienation, and
thus deprived tho mortgagor of a right which was an
essential incident of the estate he had in the pro-
perty by virtue of his equity of redemption, it could
not be given effect to. When a mortgage-debt is
contracted In a part cular currency, it should be
repaid in that currency. Trimp.ak Jivaji Dk-

SHAMUKHA V. SaEHARAM GoPAl.

I. L. R. 16 Bom. 599

43. Prior and puisne incum-
brances— Puisne incnmhrancer not made a 'party
to suit upon prior incumbrance. If a prior incum-
brancer, having notice of a puisne incumbrancer,
does not, when he puts his mortgage into suit, join
the puisne incumbrancer as a party, that puisne
incumbrancer's right to redeem wili not thereby be
affected. Mohan Manor v. Togu IJka, I. L. B.
10 Bom. 224 ; Muhammad i-ami-uddin v. Man Singh,
l.L.B. 9 All. 125 ; and Gajadkur v. Mul Chand,
I. L. B. 10 All. 520, referred to. Namdar Chatj-
DHRi V. Karam Raji . . I. L. R. 13 All. 315

44. Right to redeem first mort-
gage independently of later mortgage —

Mortgage to a frm — Subsequent ynortgage to one
viemler of the firm for personal loan, with stipu-
lation for payment of neic debt before prior mortgai/e-
debt. On the 1 3th July 1877 a firm, of which de-
fendants Nos. J to 4 were members, lent money to N
on mortgaire of certain property. Subsequently
defendant No. 2 personally made a further loan to
K, who executed two san-mortgage-deeds to him of
the same property containing stipulations that
these bonds should be paid before the mortgage of
July 1877. N died, and his widow and heirs as-
signed the equity of redemption of the mortgage of
July 1S77 to the i^laintiff, who sued the defendants
to redeem. The defendants contended that the
I)laintiff was bound to pay off the two later bonds as
well as the original mortgage-debt. Held, that
the later loan by defendant No. 2 being a personal
loan by him, the firm, as such, had no equity to
insist on its being paid before the mortgage was
redeemed, whatever right defendant No. '2 in his
personal capacity might have. But in this suit,
which was one to redeem the mortgage, he was a
party as member of the firm, and not in his indivi-
dual capacity, and he could not theretore resist the
plaintiff's right to redeem on any around based of
the promise of the tv,o bonds executed to himself.
Chhotalal Govindram v. Matiiur Kevalram
I. L. R. 18 Bom. 591

MORTGAGE— r. n*<J.

8. REDEMPTION— coTiY^.
(«) Right op Redemption — contd.

45.

Right to redeem made

conditional on payment by mortgagor of
another debt as well as mortgage-debt—

Effect ol that other debt becoming barred by limita-
tion— Bight to redeem mortgage still subject to
condition. A mortgage-bond contained a clause'
stipulating that the mortgagors were not to redeem
the mortgaged property without paying not merely
the amount of the mortgage-debt and interest, but
also the amount due on a certain bond executed at
the same time as the mortgage in respect of money-
due under a decree, and that, ' ' unless the whole w as-
paid off, neither the mortgagor nor any one else
should have a claim." The mortgagee subsequent-
ly obtained a decree on the instalment bond and'
made several attempts to execute it, but failed,
his darlchast beincr eventually rejected as time-bar-
red." Held, that the right of redemption was mad e
conditional on the payment of what was due on the
instalment bond — a condition which was unsatisfied
as long as such sum remained unpaid, although in
contemjilation of law there might be no longer a
bond debt still in existence owing to a decree having.
been passed on the bond, and that decree having be-
come barred by limitation. Sundar Malhar Patel
t . B.APi^Ji Shridhar . I. Li. R. 18 Bom. 755'

46. Decree for redemption

omitting to state consequence of non-pay-
ment of mortgage money within time speci-
fied— Limitation — Transfer of Property Act {IV
of 1SH2\ s. 92. Where a Court gave plaintiff a
decree for redemption of a mortgage conditioned on
payment by him of the mortgage-money within a
specified time from the date of the decree, but omit-
ted to state in such decree what would be the con-
sequence of the plaintiff's default in so paying in the
mortgage-money : — Held, that such omission could
not operate to extend the period available to the
plaintiff for payment beyond the maximum term
provided for by s. 92 of Act TV r,f 1882 Jai Kishen
V. Bhola Nath, I. L. B. 14 All. 529, referred to.
Bandhu Bhagat v. Muhammad Taji, I. L. B. 14,
All. 350, dissented from. Wazir v. Dhuiman Khan

I. li. R. 16 All. 65

47. Two mortgages between

the same parties over the same property
— Right to redeem one without the other —
T((cking— Transfer of Property Act (1 of 1SS2),
ss. 61 and 62— Stat. 44 ct- 45 Vict., c. 41, s. 17.
A mortgagee held two mortgages over the same
property from the same mortgagor, the one being a
usufructuary mortgage in respect of interest only
and the other being a simple mortgage. The mort-
gagor sued to redeem the usufructuary mortgages.
The mortgagee objected that the mortgagor was
bound to redeem both mortgages. Held, that the
mortgagor had the right to redeem one mortgage
without redeeming the other, and thac, in the ab-
sence of special contract to redeem both mortgages
simultaneously, he could not be compelled to redeem.

( 8529 )

DIGEST OF CASEiS.

( 8530 )

MORTGAGE— con^'Z.

8. REDEMPTION— co)i^/.
(a) Right of Redemption — contd.
them both. Tithnl Mahadev v. Daud vnlnd
Muhamvmd Hu.sen, 6 Bom. A. C. 905, dissented
from. Shuttle north v. Layccck, 1 Vfrn. 245, and
Jennings v. Jordan, L. R. 0 A p. Cui. 69S, referred
to. Tajjo Bibi v. Bhagwan Prasad

I. L. E. 18 All. 295

48.

— Right of mortgagor mak-

ing default in payment of mortgage-money
at time fixed by decree for redemption —

Transfer of Properti/ Act {IV of ISS-J). ss. S7, 89,
92 and 93. A mortgagor who has made default in
payment of the mortgage-money within the time
limited by the decree in a suit for redemption is
not entitled to apply for execution of the decree
after the time limited. Vallabha Valiya Raja v.
VEr-A Pcratti . I. li. R. 19 Mad. 40

49. Decree for foreclosure —

Transfer of Property Ad {IV of ISS':), s. S7— Mort-
gagor's application for extension of time. In a suit
on a mortgage a decree for foreclosure was passed, a
period of three months being fi.-ved for the discharge
of the mortgage-debt. The mortgagor having
made default, the decree-holder applied for and was
placed in possession of the property. The mort-
gagor, to whom no notice had been given of the
decree-holder's application, then applied for and
obtained an extension of time fcr payment, and he
made the payment and recovered possession. Held,
that the order was right since no order absolute for
foreclosure had been made after notice to the mort-
gagor. Nakayana Reddi V Papayya

I. L. R. 22 Mad. 1S3

50. Mortgage with posses-
sion— Sale for arrears of re le line caused hi/ default
of mortgagee — Subsequent suit bij mortgagor for
redemption where mortgagee has become the , pur-
chaser. Where mortgaged property was sold at a
Government sale for arrears of revenue -.—Held, that,
if the sale took place owing to the mortgagee's de-
fault, it would not affect the mortgagor's right to
redeem. The general rule, that a Government sale
for arrears of revenue gives a title against all the
world, is subject to the exception that, if it is
caused by the default of a mortgagee, it does not
take away the mortgagor's riaht to redeem the
mortgage to recover theland. Kalappa v Siiivaya

I. L. R 20 Bom. 492

51. Rights of redemption and

foreclosure — Poicer ezpresshj given to the mort-
gagee to call in his money before the e.rpiri/ of the
ierm, effect of, on right to redeem — Limitatiort put
on right to redeem — Agreement restraining the right
of redemption. The right of redemption and the
right of foreclosure are always co-extensive, and
from the postponement of the "former the Court will
infer an intention to postpone the latter in the ab-
sence of express provision on the point where there
is such express provision, giving the mortgagee
power to foreclosure at any time, any stipulation

MORTGAGE— con/rL

3. REDEMPTION- co«^/.

fa) R GHT OF Redempti^'X — contl.
postponing the mortgagor's right to redeem is uni-
lateral and void of consideration. A Court of efjuity
will not enforce any agreement in restraint of the
right of redemption which is oppressive and unrea-
sonable as giving the mortgagee an advantage not
belonging to the contract of mortgage. A mort-
gagor cannot, by any contract entered into with the
mortgagee at the time of the mortgage, give up his
right of redemption or fetter it in any manner by
confining it to a particular time or a particular des-
cription of persons. Ai^dul Hak v. Gulam Jilani
I. L. R. 20 Bom. 677

52. Right of lessee from ottidar

to ve&eem.— Transfer of Property Act (IV of 1SS2),
s. 91. A verumpottom tenant in Malabar claiming
under a lease from the ottidar is entitled to redeem
the prior kanam. Paya Matathtl Appt i . Khva-
mel Amixa . . . I. L. R. 19 Mad. 151

53_ — Suit by legitimate son of

illegitimate member of the family to redeem
a mortgage made by a previous legitimate
owner. The right of an illegitimate son in a
Hindu family to receive maintenance from the
family property is a purely personal right, and
does not descend to his son. Held, that the legiti-
mate son of an illegitimate member of a Hindu
family, who, as such illegitimate son, might have
had right to maintenance from the property of his
father, had no such interest in the estate belongiiig
to the family as would entitle him to redeem a
mortgage made by a previous rightful and legiti-
mate owner of the estate. Balwaxt Singh r.
RosHA>- SixGH . . I. li. R. 18 All. 253

On appeal to the Ptivj' ( oimcil — Roshax Singh
V. Balwaxt Singh . . I. L. R. 22 All. 191
4 C. W. N. 353
where, however, this point was not ■ ecided.

54. Decree giving a defendant,

second mortgagee, a right to redeem a prior
mortgage within a fixed period — Effect of
appeal — Limitation. When a decree gives a right
of redemption within a certain specified period with
a certain specified result to follow, if redemption is
not made within such period, the mere fact of an
appeal being preferred against it will not suspend
the operation of such decree, and. unless the Appel-
late Court extends the period limited by the original
decree, the right of redemption will be barred if not
exercised within the period so limited. The prin-
ciple in Japixir Nath Pande v. Jolhu Teuari,
1. L. R. IS All. 223, applied. Chikaxji Lal v.
Dharam SixGii . I. L. R. 18 All. 455

55. - Execution of decree for re

demption — Transfer of Property Act (IV of I.SS2),
.•s. S7, S9, and 92 — Extension of time limited for
}iayment of decretal amo7int. In the case of a decree
for redemption or for foreclosure under the Transfer
of Property Act. 188J. both of which decrees stand
in this respect upon the same footing, no extensioa

{ 8531 )

DiCEsT OF CASLS.

8532 )

MORTGAGE— fow^f/.

S. REDEMPTION— co«/(Z.
(a) Right of Redemption — contd.
of the time limited by the decree for payment of the
decretal amount can be made except for good
cause shown, whether the order under s. 87, in a suit
for foreclosure, or the order under s. 93, in a suit
for redemption, has been applied for or not. Poresh
Nath Mojmndar v. Bampdu Mojumdar, I. L. R.
16 Calc. 246, dissented from. Kanara Kurup v.
Govinda Kurup, I. L. B. 16 Mad. 214, distin-
fTuished. Ram Lal v. Tulsa Kuar

I. L. K. 19 All. 180

See Rajaeam Singhji v. Chunni Lal

I. L. R. 19 Ail. 205

HaRJAS Rai v. Rameshor I. L. E. 20 Ail. 354

But see Kedar Nath Raut v. Kali Churn Raut

I L. R. 25 Calc. 703

56. Stipulation postponing tlie

right to redeem beyond the time wlien the
mortgagee can require payment of the
mortgage-debt. A stipulation postponing the
mortgagor's right to redeem beyond the time when
■the mortgagee can call in his money is inoperative.
Abdul Hak\. Gnlnm Zilani, I. L. R. 20 Bom. 677,
followed. Sari v. Motiran Mahadu

I. L. R. 22 Bom. 375

But see Krishnaji v. Mahesuvar Lakshman
Gondhalekar . . I. li. R. 20 Bom. 346

57. Fetter on the equity of

redemption — Agreement by mortgagor to sell the
mortgage premises to the mortgagee. A stipulation
in a mortgage, that if the mortgage-money is not
paid on the due date the mortgagor will sell the pro-
perty to the mortgagee at a price to be fixed by
umpires, is unenforceable as constituting a fetter on
the equity of redemption. Kanaram v. Kuttooly
I. Ii. R. 21 Mad. 110

58. Covenant fettering right

of redemption — Covenant for pre-emption of mort-
gaged property in favour of mortgagee — Collateral
admutage — Transfer of Property Act (IV of 1S82),
s. 60. A provision in a mortgage which has the
effect of preventing redemption of the mortgaged
property on payment of principal, interest, and
costs, in accordance with the terms of the mortgage,
is a void provision which cannot be enforced ; but a
covenant conferring on the mortgagee a collateral
advantage is enforceable, provided that it is not ob-
jectionable on the ground of unfairness or unreason-
ableness. Held, that a covenant giving the mort-
gagee a right of pre-emption in respect of the mort-
gaged property at a price fixed by reference to an-
other share in the same village was prima facie a
.good covenant and enforceable by the mortgage.
Biggs v. Hoddinott, [1S9S] 2 Ch. 307 ; Santley
v. Wilde, [1S99] 2 Ch. 474 ; and Orby v. Trigg,
9 Mad. 2, referred to. Bimal Jati i-. Biranja
Kuar . . . I. L. R 22 All. 238

59. — Right of mortgagor to re-
deem land BO taken in exchange — Mortgagee

MORTGAGE— cowfrf.

8. REDEMPTION— con/rf.

(a) Right of Redemption — contd.
talcing other land in exchange for mortgaged land —
Fraadr— Forest Act (VII of 1S78), s. 10, cl. (d)— Bom-
bay Land Revenue Code (Bom. Act V of 1879), s. 56.
In 1876 B mortgaged certain land (Survey Nos. 51
and 52) to S, who died, and his brother G succeeded
him. The Forest Department, being desirous of
acquiring the mortgaged land, entered into ne-
gotiations with (t, who admitted that he was only a
mortgagee. B (the mortgagor) had left the village,
and could not be found. Under these circumstances
it was arranged that (V should allow the assessment
to fall into arrear, upon which Government would
forfeit the holding, and that G should receive other
land (Survey No. 105) in exchange. This arrange-
ment was actually carried out. (? received Survey
No. 105 in exchange for the mortgaged land. In the
order giving the land in exchange, G was styled
mortgagee. The heir of B (the mortgagor) sub-
sequently brought this suit to redeem Survey No.
105 from' the mo'rtgage of 1876. The defendant con-
tended that this land was not subject to the mort-
gage, and that by the exchange G had acquired the
full ownership in it. Held, that the plaintiff was
entitled to redeem Survey No. 105. The mort-
gagee, G, had lost the mortgagor's equity of re-"
demption in the mortgaged land by fraud, and the
land ^Survey No. 105) which he obtained in exchange
was therefore subject to the mortgage. He held
the equity of redemption in this land as trustee for
the mortgagor. Bapaji v. Magniram

I. L. R. 21 Bom. 396

60. Second siiit for redemption

—Transfer of Property Act (IV of 1882), ss. 92
and 93 — Decretal money not paid within the time
limited — Civil Procedure Code, 1882, s. 13 — Res
judicata— Right of s'lit. Held, that a mortgagor,
whether under a simple or a usufructuary mortgage
who has obtained a decree for redemption and
allows such decree to lapse by reason of his not
paying in the decretal amount within the time
limited for payment by the decree, cannot subse-
quently bring " a second suit for redemption of the
mortgage in respect of which such infructuous
decre^ was obtained. Golam Hoosein v. Alia
Rukhee Beebee, 3 N. W. 62, and Maloji v. Sagaji,
I. L. R. 13 Bom. 567, followed. Hari Ravji
Chiplunkar v. Shapurji Hormasji Shet, I. L. R. iQ
Bom. 461, referred to. Muhammad Samiuddin
Khan v. Mannu Lal, I. L. R. II All. 386 ; Sami
Achari v. Somasurhdram Achari, I. L. R. 6 Mad.
119 ; Periandi v. Angappa, 1. L. R. 7 Mad. 423-^
and Ramunni v. Brahm/i Datton, I. L. R. 15
Mad. 366, dissented from. Hay r. R.azi-ud-din
I. L. R. 19 All. 202

61. Right of member of family

to redeem — Mortgage by manager of undivided
fiimihi — Sale of mortgaged property under money
decree obtained by mortgagee in respect of other debts —
Purchase without leave of Court by mortgagee at
Court-sale — Transfer of Property Act (IV of 1828),

( 8533 )

DIGEST OF CASES.

( S534 )

IS.O'RTGAG'E-contd.

8. REDEMPTION- cow/J.

(o) Right or Redemption — conid.

5. 99— Civil Procedure Code (Act XIV of 18S2), s.
294. S, his son S D and his grandson the plaintifE
D (san of a predeceased son) were undivided. In
1875 .S mortgaged the property in dispute to H
with possession. After .S'"s death in 1877j S D
managed the whole estate. In 1878, during D's
absence from his native village, H sued S D as the
heir and representative of >S' in respect of other aebts
and, obtaining a money-decree against him, at-
tached the mortgaged property in execution of the
decree. After the attachment, H, without notify-
ing or disclosing his mortgage-lien, caused several
of the properties to be sold and, without obtaining
leave from Court to bid at the sale, purchased some
of them in the names of his dependants at an under-
value and bcnami for himself. In 1892 D brought
his suit against H, S D and the benami purchasers to
redeem the properties so bought by H. The lower
Courts found that the monej'-decree which H ob-
tained and the execution-proceedings thereon bound
the estate. It was contended that the execution-
sale had not been objected to under s. 294 of the
Civil Procedure Code and were therefore valid, and
that the plaintiii consequently could not redeem.
Held, that the plaintiff might redeem, although he
had not taken proceedings under s. 294. The fact
that the mortgagee H had sold the property in exe-
cution of a mor»ey-decree did not free him from the
liability to be redeemed as mortgagee. The sale
was rendered nugatory, not by the provisions of s.
294 (though permission to bid granted under that
.section might have validated the purchase), but by
the impossibility of a mortgagee by such sales and
purchases freeing himself from the liability to be
redeemed. JI.A.r;TAND Bai.kbishna Bhat v. Dhon-
Do Damodak Kri.EARNi . I. L. K. 22 Bom. 624

See Mayan Pathuti
I.

<:. Pakuran.

L. E. 22 Mad. 347

62. Money decree obtained by-
mortgagee — Execution — Sale of mortgaged pro-
perty in execution — Purchaser at such sale — Title
of such purchaser — Transfer of Property Act (IV
ef 1SS2), s. 99. Prior to the passing of the Transfer
of Property Act, a mortgagee obtained a money
decree against his mortgagor, and in execution sold
the mortgaged property. The son of the mortgagee
bought it at the sale. Held, that by his purchase at
the execution-sale the son took an absolute title,
and was not liable subsequently to be redeemed at
the suit of the heirs of the mortgagor. Martand
Balkrishna Bhat v. Dhondo Damodar Kulkarni,
J. L. B. 22 Bom. 624, distinguished. Sembh :
A third person purchasing mortgaged property
bond fide at a sale in execution of a money decree
obtained by the mortgagee against the mortgagor
obtains a good title free from the moitgage-lien,
•unless the sale is made subject to it. Hr.*FiN' ».
Shankakgiki Guitr Shambhigiki

I. Ii. R. 23 Bom. 119

MORTGAGE— row<f7.

8. REDEMPTION— co/i<<?.
(«) Right of Redemption' — o

mtd.

63.

Impossibility of mort-

gagee freeing himself by such purchase
from liability to be redeemed — Transfer of
Property Act (IV of lSS2j, s. 99— Purchase hy
mortgagee holding decree for sale of portion of
mortgaged property, subject to mortgage — Trusts
Act (II of 1SS2), s. SS. ' A mortgagee having ob-
tained a decree against his mortgagor for the
sale of the mortgaged property, a portion of the
latter was subsequently sold, subject to the said
decree, in execution of a money-decree obtained by
a third party against the mortgagor. The mort-
gagee purchased the portion so sold, whereupon the
mortgagor presented a petition under s. 258 of the
Code^of Civil Procedure, claiming that the mort-
gagee was bound to discharge his mortgage debt
and should be called upon to certify satisfaction of
his decree. Held, that petitioner was not entitled
to the relief prayed for, but only to proceed upon
the footing that "the portion of the mortgaged pro-
perty which had been purchased by the mortgagee
remained, notwithstanding such purchase, redeem-
able by petitioner together with the remainder of
the property. On the question whether the pur-
chase by a mortgagee of a portion of the mortgaged
property at a Court-sale in execution of the money-
decree of a third party involves a taking advantage
bv the mortgagee of his tiduciary position as mort-
gagee : — Held, that the principle of the impossibility
of a mortgagee freeing himself from his liability to
be redeemed a-; aflirmed in Martand v. Dhondo,
I. L. B. 22 Bom. €24, and Mayan Pathuti v.
Pakuran, I. L. R. 22 Mad. 347, was apphcable,
even in the absence of fraud or collusion between
the mortgagee and the third party in execution of
whose decree the purchase of the equity of redemp-
tion had been made, and that such a purchase
contravened the principle underlying s. 99 of the
Transfer of Property Act and expreseed in s. 88 of
the Indian Trusts Act. Ervsappa Mvdaliar v.
Commercial and Land Mortgage Bank

I. L. R. 23 Mad. 377

64. Right of son not party to

suit to redeem his share — Mortgage of annuity
— Sale of ait'u-hfd prop'rty at instance of mortgagee
— Civil Procrd are Code. s. 1'44— Transfer of Property
Act (IV of 1SS2), s. 99, sole contrary to provisions
of. In 1848 an annuity had been settled on plaint -
ifi's ancestor and his heirs in con.«ideration of his
withdrawal from a suit for partition then pending.
In 1878 plaintiff's father and others then enjoying
the annuity executed a bond for money due by
them, mortgaging their rights under the said an-
nuity. Instalments due under the bond having
fallen into arrears, a suit was brought in 1889 in
respect of them, and a decree dbtained, which con -
tained a provision that the right to the annuity
should be liable to be proceeded against for the
amount ?o due. Plaintiff was born in 1891. In
1893 an api)lication was made for the issue of a pro-

( 853.3 )

DIGEST OF CASES.

153(5 )

MORTGAGE— <o«^r/.

S. REDEMPTION— coj!/r/.

(a) Right of Redemption — contd.
clamation of sale, and a sale ensued and a certificate
was given to the purchaser, who was the decree -
holder. Plaintiff having instituted this suit to
set aside the said sale or to have it declared that it
did not affect his right under the said annuity.
Held, (i) that, if there was in fact a decree for sale,
plaintiS, as son of the judgment-debtor, born after
the date of the decree, though before the sale, could
not question the sale, nor would any right of re-
demption be left to the plaintiS ; (ii) that inasmuch
as the decree was, on its true construction, not a
decree for sale, the case was one of attached pro-
perty being sold at the instance of the mortgagee in
execution of a money-decreee, and so within the pro-
hibition of s. 99 of the Transfer of Property Act.
The conditions under which a sale of mortgaged
property is permissible under that section are not
satisfied unless there is a decree for sale : and in the
absence of such decree, the sale is prohibited ; (iii)
that although a sale in contravention of the section
is not absolutely void for all purposes, it is at least
void against all persons who were not parties to the
suit in which the decree for money was obtained ;
(iv) that the rights of a Hindu debtor's son may
be concluded by a proper mortgage-d«cree and sale
thereunder, or, if there is no mortage, bv a decree
for money and sale of the attached property, but
they are not affected by a sale brought about in de-
fiance of s. 99 ; (t) that the suit was not barred by
s. 244 of the Code of Civil Procedure ; and that plaint-
, iff was entitled to decree for the reden^ption of his
share. Mathuraman Chetti r. Ettappasami

I. L. R. 22 Mad. 372

65. Right of redemption —

Involuntary alienation — Execution, proceedi7ig6 — Be-
venue Sale Law (Act XI of 1S59), ss. 13, 54— Sale
for arrears of Government revenue — Mortgage — Sale
in execution of mortgage-decree. A decree was ob-
tained for the sale of a mortgaged propertj-, being a
share of an estate, on the 3Lst August 1889. In
execution of that decree, the property was pur-
chased by the plaintiffs on the llth December

1891, and the sale was confirmed on the 5th March

1892. Meanwhile, pending the execution proceed-
ings, a larger share of the estate, including the share
mortgaged, was purchased by the defendants at a
revenue sale on the 30th September 1891, which sale
was confirmed on the llth March 1892. In a suit
instituted by the plaintiffs for the possession of the
property purchased by them, the defendants having
questioned the validity of the mortgage-decree and
contended that they were not bound by it, not being
parties thereto, and having in the alternative
claimed the right to redeem the mortgaged pro-
perty -.—Held, that the defendants, havmg pur-
chased a share of an estate at a revenue sale, held
under the provisions of ss. 13 and 54 of the Sale Law,
acquired it subject to the mortgage which thev were
bound in law to discharge before the sale in execu-
tion of the mortgage-decree had actually taken

MORTGAGE— c^n??.

8. REDEMPTION-^ow/rf.
{a) Right cf Redemption- — contd.
place, or before at any rate that sale had been
confirmed on the 5th March 1892 ; and that having
failed to do so, and there being no equities to the
contrary, their right of redemption was extin-
guished. Har Shankab Prasad Singh v. Shew
GoBiND Shaw . I. L. R. 26 Gale. 966

4 C. W.N. 317

66. Alternative claim — Transfer

of Property Act (I r of 1S82), -f 60— Redemption .suit
— Claim in the alternative — Effect on suit where there
has been no previous tender or payment of mo>tgage
amount. A mortgagor who institutes a suit for the
redemption of his mortgaged property is entitled
to put an alternative claim before the Court. He
may aver that the mortgage money has been
repaid, and, in the alternative, in the event of the
Court finding any sum to be still due under the
mortgage, that he is prepared to pay such further
sum. S. 60 of the Transfer of Property Act raises
no bar to a suit for redemption where the mortgage
money has not been paid or tendered. Butchanna
V. Varahalu (1901) I. L R. 24 Mad. 408

67. Clog on equity of redemp-
tion— Subsequent money bonds — Provision as to the-
'payment of the bonds before redemption — Clogging the-
equity of redemption — Once a mortgag» always a mort-
gage and nothing but a mortgage. In the year 1869
the plaintiff's deceased father mortgaged his lands,
with possession, to the defendants' deceased
father, under two mortgage-deeds, and in the year
1882 the plaintiff passed two money bonds to the
defendants' deceased father, which contained a
clause providing that the amount due on the mort-
gages should not be paid in redemption of the pro -
perty unless that which was due on the money bonds-
was also paid. The plaintiff having filed a suit to
redeem the lands, the defendants objected to the
redemption under the above clause. Per Curiam,
Following Noakes <t- Company, Limited v. Rice,.
[1902] A. C. 24, a clause which has the effect of
cloggina the equity of redemption is void. Hari
Mahadaji v. Balambhat, I. L. R. 9 Bom. 233,
doubted. Rajmal Motiram v. Shivaji Anandrav
(1902) . I. Ii. R. 27 Bom. 154

68. Agreement of sale of the
mortgaged property subsequently to mort-
gage. It is open to a mortgagor and mortgage©
to enter into a contract, subsequently to the
mortgage, for the sale of the mortgaged property
to the mortgagee. But it must not be part and
parcel of the original loan or mortgage bargain.
Ramji v. Chmto. 1 Bom. H. C. R. 19'.>, followed
and appl ied. Kanhayalal Bhikaram v. Narhab
Laxmanshet Vani (1903) I. L. R. 27 Bom. 297

69. Failure to pay sum ordered

by decree for redemption — Decree for redemp-
tion— Failure of mortgagor to pay the sum ordered by
the decree — Rights of mortgagee on such failure —
Transfer of Property Act (IV of 18S2), ss. 92 and

( 8537

DIGEST OF CASES.

( 8538 )

MORTGAGE— (fm/rf.

8. REDEMPTION— ran/rf.

(a) Right of Redemption- — roJiid.
93. In a suit by a mortgagor for redemption of a
mortgage dated 17th March, 1891, a decree was
passed in 1897, allowing him to redeem on payment
of the mortgage-debt within a year from the date of
the decree, but the decree did not contain any pro-
vision for foreclosure or sale in default of payment
on the due date. The plaintiff having made de-
fault, the defendant applied to the Court for an
order absolute for foreclosure or sale under s. 93 of
the Transfer of Property Act (IV of 1882). His
application was rejected on the ground that, as the
decree did not contain any clause for foreclosure or
sale, s. 93 of the Act was not applicable. Held,
in second appeal, that the defendant (mortgagee)
was entitled to the remedy given by s. 93, although
the decree was not drawn up as prescribed by s. 92.
The omission of the Court to draw up the proper
decree under s. 92 did not deprive the mortgagee of
the relief provided by s. 93. Murlidhab v. Par-
SHARAM (1900) . I. L. R. 25 Bom. 101

70. • Limitation — Equity of rcdcmp-

lion — Limitation — Advene possession while period of
redemption running — Limitation Act (XV of 1S77),
s. 28. An equity of redemption, in common with
other equitable estates in land, is capable of being
■extinguished by the operation of the Statute of
Limitation. The interest in the property remaining
in a mortgagor after the mortgage has been effected,
commonly called the equity of redemption, may, in
the case of an iisufructuary mortgage, be extin-
guished by adverse possession on the part of a
stranger while the mortgagee continues in posses-
sion and the period of redemption is still running.
The word " possession," in s. 28 of the Limitation
Act, embraces both actual possession and " posses-
sion in law," and the title to immoveable property
may be affected by s. 28 of the Limitation Act, al-
though the physical possession of the property is
not in question. An equity of redemption may
with propriety be said to fall into possession or to be
in the possession of the person legally entitled to
it, although he may not be in the actual possession of
the land. Continued possession of the mortgagee
is not per se sufficient to keep alive the title of the
mortgagor, but his title to redeem, and consequently
to the ownership of the mortgaged property, is
<!apable, notwithstanding such possession, of being
•extinguished by adverse possession for the required
lieriod. Held, upon the facts of the case, that the
equity of redemption claimed by the plaintiff was
•extinguished by adverse possession, inasmuch
as a stranger received rent from the mortgagee in
possession, and the stranger's possession was on his
own behalf and as owner, and was quite inconsistent
with the plaintiff's title. Lalla Kanhoo Lal v.
Manki Bibi (1902) . . . 6 C. W. N. 601

71. Mesne pTO&ts— Mortgage-debt

tendered and deposited in Court — Possc^^sion of mort-
* gaged property obtained by mortgagee — Mesne profits
••-Claim to mesne profits by mortgagor, after tender

MOETGAGE— cow?f/.

8. REDEMPTION- ronirf.

(a) Right of Rede.mption — contd.
of mo tgage-deht and deposit in Court — Transfer
of Property .Act (IV of 1SS2), ss. 6'.?, S4. In 1890
the plaintiff mortgaged certain land to the first
defendant, Avithout possession, for R700. The mort-
gage-deed Yjrovided that the plaintiff (mortgagor )
should remain in possession and pa}' interest to the
first defendant until the mortgage-debt was repaid.
In 1895 the first defendant sued the plaintiff on the
mortgage, and a consent decree was passed, which
directed that the defendant therein (the present
plaintiff) should pay R300 on the 7th October, 1897,
and R 400 on the 7th October, 1898, and in case of
default in either payment on the specified date pos-
session of the land should be given up to the plaint-
iff therein (the present defendant 1). Default was
made in payment of the first instalment on the 7th
October 1897, and the present first defendant there-
upon applied for possession in execution of the said
consent decree, which possession he did not obtain
until the 3rd April, 1898, and he then assigned it for
value to the second defendant. In the meantime,
however (r/c. on the 19th March, 1898), the plaint-
iff (mortgagor), under s. 83 of the Transfer of Pro-
perty Act (IV of 1882), tendered and deposited in
Court the R700, and subsequently demanded pos-
session of the land. The second defendant re-
fused to give it up, and the plaintiff thereupon filed
this suit for redemption. He also claimed the mesne
profits of the land from the date at which he de-
posited the R700 in Court, i.e., the 19th March,
1898. The Court of first instance held that the
plaintiff was entitled to redeem on payment of the
R700, but was not entitled to mesne profits. The
lower Appellate Court held that, under s. 84 of the
Transfer of Property Act (IV of 1882), the plaintiff
was entitled to mesne profits from the date on which
the first defendant took possession of the land
(3rd April 1S9S), and ordered redemption on pay-
ment by the plaintiff of the R700 less the amount "of
such mesne profits. On second appeal, held (revers -
ing the decree of the lower Appellate Court and
restoring the decree of the Court of first instance ),
that the plaintiff was not entitled to mesne profits,
but was entitled to redeem on payment of the R700.
By the consent decree the first defendant became
entitled to possession on the 7th October, 1897,
although he did not actually get possession until the
3rd April, 1898. By that decree the right to re-
deem accrued to the plaintiff only after the detend
ant had got possession. The plaintifl (mortgagor)
could not defeat the right of possess:on which had
accrued to the first defendant (mortgagee) by ten-
dering and depositing the mortgage-debt in Court
on the 19th March, 1898. That "tender was pre-
mature, and the provisions of ss. 83 and 84 of the
Transfer of Property Act (IV of 1882) did not apply
to the case. Ram Sonji Parclekar r. Kri^iinaji
SoNJi Pakvlekar (1901) . I. L. R. 26 Bom. 312

72.

Onus of proof — Suit for redemp-
tion— Burden of proof on plaint iff^Ecidence — Proof

( 8539 )

DIGEST OF CASES.

( 8540 )

MORTGAGE- confd. |

8. REDEMPTION— coTiirf. j

(a) Right of Redemption — contd. j

of specific morlgage. The plaintiff sued for redemp- j
tion and to recover possession of certain lands, alleg-
ing tliat they had been mortgaged to the ancestors j
ofthe defendants about forty-five years before suit. }
The defendants, who were in possession, denied the j
mortgage. The Subordinate Judge found the mort- j
gage proved, and passed a decree for redemption. \
On appeal, the Judge reversed the decree and dis- I
missed tlie suit. He was of opinion that the plaint- ,
iff was bound to prove a specific mortgage made
forty-five j-ears ago as alleged in the plaint, and
that he had failed to do so. On second appeal :
Held (remanding the appeal, that the real question
was whether the defendants were mortgagees of the
property in question. The plaintiff did not tie
himself down to a specific mortgage made at a
particular time. He was entitled to succeed if he
proved that the land was held by the defendants as
mortgagees. Bala v. SniVA (1902)

I. L. R 27 Bom. 271

73.

— Pre-emption — Transfer of Pro-

perty Act {IV of 18S2), ss. 54, 60— Mortgage with
right of pre-emption in favour of mortgagee — Assign-
vient of equity of redemption — Non-exercise of 'pre-
emptive right for over twenty years — Suit for redemp-
tion— Validity of defence based on pre-emptive right —
Specifi.c Belief Act {I of 1877), s. 27— Limitation.
In 1872, A mortgaged certain land, with possession
to S, to secure an advance of RIOO. The instru-
ment of mortgage contained a covenant conferring
upon the mortgagee a right of pre-emption in the
following terms: — " If we assign our right over
these properties to anyone, the land delivered pos-
session of to you for appropriating the interest shall
be assigned to you alone, and it shall not be assigned
to anj-body else. When we assign the land, we
shall receive 50 fanam^s more from you, and then
we shall assign the land for these two amounts
together." In 1873, .4 sold his equity of redemp-
tion to T', and before 1893 T''s interest was sold in
execution of a decree against him, and bought by
plaintiff. In 1897, plaintiff instituted this suit for
redemption against the representative of .8, the
mortgagee, who pleaded in defence the right of pre-
emption created in his favour by the mortgage deed,
and contended that in consequence thereof the as-
signment to V and the subsequent purchase of V's
interest by plaintiff were invalid. The defendant
did not, however, bring the price fixed into Court.
Held, that plaintilT was entitled to redeem. Per
Shepiiekd, j. — Under the covenant, and by reason
of s. 54 of the Transfer of Property Act defendant
had no interest in the property. His right could
be no other than a right to specific performance
available, under s. 27 of the Specific Relief Act,
against a transferee who had taken with notice of
the covenant. But notice of a contract, such as is
required to satisfy the section, must be notice of an
existing obligation. Plaintiff was not a transferee
who took with notice of the contract now sought to

MORTGAGE— co«<(f.

8. REDEMPTION— corafrZ.
(a) Right of Redemption — contd.

be enforced the time for the performance of which
had long passed without anything being done, and
the natural inference being that the right arising
under it had been waived or otherwise discharged.
Assuming that there was notice of the contract, and
that it was otherwise a valid contract, defendant
could not be allowed to use it as an answer to plaint-
iff's suit, inasmuch as no suit could now be brought
to enforce the contract. Per Bhashy.\m Ayyangar,
J. — The rule that a mortgagee may stipulate for the
collateral advantage of pre-emption, if such ad-
vantage does not directly or indirectly " clog the
equity of redemption," is based upon the principle
that the option of sale is still left with the mort-
gagor, who may redeem or sell as he likes ; the only
stipulation being that, in the event of his choosing
to sell, he shall give the mortgagee the refusal.
But, by the terms of the stipulation under con-
sideration, the mortgagee was entitled to exercise
his option by paying, not the market price of the
day or the price offered by a stranger, but the price
fixed in the instrument of mortgage. In consider-
ing whether a mortgagee could effectually secure a
right of pre-emption where the mortgagor was so
tied down as to price, the question is whether the
collateral advantage stipulated for by the mortgage
is or is not unconscionable or oppressive, though it
does not clog the redemption. In the present case ,
the collateral advantage, namely, the right of pre-
emption, was one that could be enforced only by the
equitable remedy of specific performance, and prima
facie, a bargain by which the mortgagor is tied down
to a price by the instrument of mortgage, when-
ever the occasion for exercising the right of pre-
emption may arise, is oppressive and unconscionable.
Where a right of pre-emption springs from contract,
it rests only upon a covenant which docs not run
with the land, and stands no higher than a contract
of sale of immoveable property, and does not of it-
self create an interest in, or charge on, the immove-
able property which is subject to the right of pre-
emption. Until the contract is carried out by
specific performance, either by act of parties or
decree of Court, the pre-emptor acquires no title to
or interest in such property, which alone can ex-
tinguish the mortgagor's right of redemption,
though he may have a right to call for a conveyance
of the property. The equity of redemption in an
usufructuary mortgage is an " intangible thing,"
within the meaning of s. 54 of the Transfer of Pro-
perty Act, and its transfer by sale can be made
only by registered instrument, even though its
value may be less than RIOO. The equity of re-
demption in a simple mortgage may be tangible im-
moveable property, and its sale can be effected, if
its value be less than RIOO, without a registered in-
strument, by mere delivery of the property. The
right of a simple mortgagee in the property mort-
gaged is an intangible thing, within the meaning of
3. 54 of the Transfer of Property Act, and a transfer
by sale of hypothecation executed to secure a debt

( 8o41 )

DIGEST OF CASE^

I 8542 )

MOETGAGE— ^-ow/,/.

8. REDEMPTION— co»/./.

{a) Right of Redemption— co«^rf.

under RIOO can be made only by a resiistered in-
strument. S libra ma niam v. Perianal Rexldi, I. L. R.
IS Mad. 45 J, referred to. Inasmuch as the cause of
action for specific performance had accrued in 1S73,
when the right of pre-emption had been infringed
by the assignment of the equity of redemption, the
right to enforce the right of pre emption was barred.
The fact that S had been in possession of the pro-
perty as mortgagee could not save him from the
operation of the law of limitation on his right to sue
for specific performance of the contract of pre-
emption. Krishna Menon v. Kesavan, I. L. B.
20 Mad. 305, referred to. Queere : Whether such a
covenant for pre-emption transgresses the rule
against perpetuities. Ramasami Pattar c. Chin-
nan As ari (1901) . . I. L. E. 24 Mad. 449

74. Purchase of part of mort-
gaged property by a third party— 2Va?j.5/er
of Property Act [IV of 1SS2), s. 91— Purchase of
part of the mortgaged property by a third party—
Suit by mortgageea to recover from such purchaser
a rateable proportion of the mortgage debt. The
plaintiffs, who were mortgagees of shares in four
villages under a deed of simple mortgage, dated the
31st of March, 1883, brought a suit for sale of one-
half of the mortgaged property, alleging as their
reason for asking for sale of half the property only
that the title of their mortgagors did not extend to
more than half. In this suit the mortgagees ob-
tained a decree for sale of one-half of the^mortga^ed
property on the 29th of June, 1893. In 1892 one
Madan Lai in execution of a simple money -decree
against one of the mortgagors, attached the mort-
gaged shares in two of the villages, the subject of
the mortgage, and in 1894 caused half of those
shares to be brought to sale, and purchased them
himself. The mortgagees, although thev had not
made Madan Lai a party to their suit for sale, sought
to execute the decree which they had obtained
against rhe shares purchased by Madan Lai. Ulti-
mately Madan Lai obtained a decree declaring that
the property purchased by him was not liable in
execution of the decree held by the mortgagees on
their mortgage, but the mortgagees brought to sale
the shares in the other two villages, one of which I
they purchased themselves, the other being sold to I
a stranger. The mortgagees then sued Madan Lai's
representatives (he having meanwhile died) and
m this suit, having given credit for the sum realized !
by the sale of that part of the mortgaged property i
which had been brought to sale in execution of their t
decree, they asked for payment of the balance due
to them, or rather of such portion thereof as was :
thought to be commensurate with the value of the t
Bhares purchased by Madan Lai, and failing pay-
ment for sale of those shares. Held, that the suit
was not objectionable in point of form. The plaint-
ifis (whatever might have been Madan Lai's right,
j m a suit brought by him to redeem the whole pro-
' perty comprised in their mortgage, or if he had been

MORTGAGE— cow^i.

8. REDEMPTION— con<cf.

(a) Right of Redemption — contd.

impleaded in the mortgagees' original suit for sale>
were not bound in this suit to give' Madan Lai, or his
representatives, an opportunity to redeem tb.e
whole property. The plaintiffs, on the other hand,
were not entitled, to the detriment of Madan Lai or
his representatives, to set up the plea that their
mortgage was only valid as to a moiety of the pro-
perty included in it, and thus to saddle the shares
purchased by Madan Lai with a double portion of
the mortgage debt ; but the defendants were entitled
to have an account taken of the respective values of
the whole of the four parcels hypothecated under
the bond of March, 1883, and could redeem their
own two parcels upon paying that portion of the
mortgage debt which might be found to be pro-
portionate to the value of their parcels. Dip
Narain Singh v. Hira Singh, I. L. B. 19 All. 527,
and Delhi and London Bank v. Bhikari Das, I. L. R.
24 All. 185, referred to. Dina Nath r. LAfHMt
Narain (1903) . . I. L. E. 25 All. 446

75. Ees judicata— rraM.?/<'r of

Property Act {IV of 1SS2), s. 92— Decree for
redemption — Omission to execute — Maintainahilty
of subsequetit suit on same mortgage — Civil Proce-
dure Code (Act XIV of 1SS2), ss. 13, 244. Where
a suit for redemption has been instituted, and a
decree for redemption has been passed therein,
but not executed, a subsequent suit is not
maintainable for the redemption of the same
mortgage. Vedapuratti v. Vallabha V\liyv
Raja (1902) . . I. L. E. 25 Mad. 300

76. Eight of purchaser of por-
tion of equity of redemptiou— Tra/is/er of Pro-
perty Act {IV of 1SS2), ss. 60, So, 91, cl. (a)—" An
interest or charge npon property, ^^ in siib-s. {a), s. 91,
meaning of — Baiyati interest, if sufficient to entitle
one to redeem — Beview, granting of, to bring in )ieces-
sary parties in a suit for redemption, if proper, after
dismissal of suit. The words ' ' any jjerson h'avinf
any interest in or charge upon the property," in
sub-s. (o) of s. 91 of the Transfer of Property Act,
mean any person having an interest in or charge
upon the property which is affected by the mor't-
gage, and a raiyati interest is notsuchan interest.
The plaintiff, as a purchaser of a portion of the
equity of redemption, was not entitled, against the
will of the mortgagee, to redeem the >vhole ; he
should be restricted to the redemption of that por-
tion only. Nawnb Azmuiali Khan v. Jowahir Sitig,
13 Moo. I. A. 404, 415, followed. Having regard
to the provisions of s. 85 of the Tran^fer of iProix>rty
Act as to necessary parties, the review granted
after dismissal of suit to bring in the heir of one
of the mortgagees as a party defendant was not
improper. Girish Cucnder Dev v. Juramovi Dp
(1000) C. W. N. 83

77. Eights of incumbrancers

inter se—rra/ioj/tr o/ Property Act (IV of 1SS2),
s. S5 — Sales in execution of dicree< separately obtained
— Rights of auction purchasers. Umrao Singh in 1879

( 8543 )

DIGEST OF CASES.

( 8544 )

MORTGAGE— con^rf.

8 REDEMPTION— fOJi.'fZ.
{a) Right of Redemption — conid.
mortgaged 10 biswonsis of a certain village to Kan-
hai Singh. In 1885 the mortgagee sued upon the
mortgage, obtained a decree, and brought the mort-
gaged property to sale, and it was purchased by
Kubra Begam for R425-2-0, of which R290.13-6
were due to and paid to the mortgagee. At a sub-
sequent date in 1879 Umrao Singh and his brother
Munna Singh mortgaged to one Shambhu Nath,
a larger share in the same village, including the
share which had been mortgaged to Kanhai Singh.
Shambhu Nath v/as not made a party to the suit on
the first mortgage. In 1886 Shambhu Nath, with-
out making the first mortgagee a party thereto, in-
stituted a suit on his second mortgage, and, in 1887,
obtained a decree, in execution of which the mort-
gaged property was put up to sale, and purchased
by Kudrat-ullah for R3,000. Both the mortgages
in question were registered. In 1896 Kudrat-ullah
deposited in Court R296-13-G, the amount which
had been due, and paid upon the first mortgage to
the first mortgagee, to the credit of Kubra Begam;
and, upon her refusal to accept that sum, filed a suit
against her, seeking to redeem the 10 hi-mmnsis pur- ,
chased by her at the auction sale in execution of the
decree on the first mortgage. Held, that sxich a suit
would lie, and that the plaintiff was entitled to re- ■
deem the first mortgage. Matadin Kasodhan v. i
Kazim Husain, I. L. R. 13 All. 432 ; JanJci Prasad \
V. Kishen Dai, I. L. E. 16 All. 478 ; and Mehrhano
V. Nadir All, 1. L. R. 22 All 212, distinguished.
Sheo CJiaran Lai v. Slieo Sewa.k Singh, I. L. R.
IS All. 469 ; Rewa Mahton v. Ram Kishen Singh,
L. R. 13 I. A. 106 ; MvModa Dassi v. Gopal
Chunder Datta, I. L. R. 26 Cole. 734 ; Mohan
Manor v. Togu Uka, I. L. R. 10 Bom. 224 ; and
I>(sai LaUuhhai Jethahhai v. Mnndas Kuherdas,
1. L. R. 20 Bom. 390, referred to. Kudrat-ullah
t;. KuBEA Begam (1900) . I. L. E. 23 All. 25

78.

Sub-mortgagee — Mortgage

originally of mortgagee's rights — Subsequent acquisi-
tion by mortgagor of his mortgagor" s equity of redemp-
tion— Acquisition of equity of redemption held to enure i
for the benefit of the sub-mortgagee. Where a mort-
gagee mortgages his mortgagee rights, and after-
wards acqinres from his mortgagor the equity of '
redemption in the mortgaged property, such accjuisi- !
tiou will enure for the benefit of the sub-mortgagee i
or mortgagee of the mortgagee interest, and he will i
be entitled to sue for sale of the property in the same j
way as if the proprietary interest had been mort- '
gaged to him from the first. Kishendat Ram v. I
Muntaz Ali Khan, I. L. R. 5 Calc. 198, and i
Shyama Churn Bhuitacharfee v. Ananda Chandra i
Das, 3 C. W. N. 323, referred to. Ajudhia
Prasad v. Man Singh (1902) '

I. L. R. 25 All. 46

"79. Suit for foreclosure— Loss

of right to redeem.— Transfer of Property Act
{IV of 1882), ss. 67, 75, 85, 101— Mortgage— Fore- \
■closure— Parties— Suit for foreclosure by prior '

, MORTGAGE— conirf.

j 8. REDEMPTION— co)i/fZ.

j (a) Right of Redemption — contd.

, mortgagee ivithout making holder of subsequent
registered mortgage a party. A prior mortgagee
(by conditional sale) brought a suit for foreclosure
and obtained a decree without making party to the
suit a second mortgagee (by usufructuary mortgage )
whose mortgage was registered. The second mo'rt-

1 gagee, having unsuccessfully objected when the
prior mortgagee proceeded to take possession through
the Court, sued for and obtained a declaration that
he was not bound by the foreclosure decree. The
prior mortgagee thereupon sued the second mort-
gagee, praying that the latter, if he failed to re-
deem the prior mortgage, might be debarred of his
right to redeem, and that in that case possession
should be given to the plaintitf. Held, that the
contention of the second mortgagee, that all that j
the prior mortgagee was entitled "to was to obtain
possession on redeeming the second mortgage, could
not be sustained, and that the prior mortgagee was I
entitled to the decree prayed for. Venlcata v.
Kannam, I. L. R. 5 Mad. 184; Krishnan
Chadayan Kutti Haji, I. L: R. 17 Mad. 17;
Radhabai v. Shamrav Vinayak, I. L. R. 8 Bom.
168 ; Desai LaUuhhai Jethahai v. Mundas \
Kuberdas, I. L. R. 20 Bom. 390, and Mohan Mane
V. Togu Uka, I. L. R. 10 Bom. 224, referred to.
Baldeo Singh v. Jaggu Ram (1900)

I. L. R. 23 All. 1 1

80. Time for redemption— |

Transfer of Property Act (IV of 1882), ss. 86 and 87
— Redemption possible at any time until an order
absolute under s. 87 has been made. A mortgagor
who has obtained a decree for redemption may pay
in the decretal amount, and obtain redemption, at
any time up to the making of an order absolute
under s. 87 of the Tran-^fer of Property Act, 1882.
Nor is the mortgagor deprived of his right to redeem
by the fact that, under an order ol Court, not being I
an order under s. 87, the mortgagee has been put
into possession of the mortgaged property. Nih^li
V. Mitter Sen, I. L. R. 20 All. 446, and Somesh
v. Ram Krishna Chowdhry, I. L. R. 27 Calc. 705,
followed. Salig Ram v. Muradan (1903)

I. L. R. 25 All. 231

81. Transfer of Pro-
perty Act {IV of 1SS2), ss. 75, 85, 86, 91— Prior
mortgagee — Subsequent mortgagee — Rigtd to redeem
inter se — Foreclosure decree. In 1859 C and his
brothers mortgaged certain lands with possession
to //. Subsecpiently, on the 2Cth May 1897, G
alone mortgaged the same to JJ. Shortly after
this C and his brothers brought a redemption
suit against H, and V was not a party to it.
In that suit the usual redemption decree was
pissed ; but as C and his brothers failed to redeem
within the time allowed, the order for foreclosure
was made absolute in favour of H. U then brought
a suit against C to recover his mortgage debt by
sale of the mortgaged property. To this suit H
was joined as the person in possession. Q'he lower
Court allowed V to redeem the property from E,

( 85i5 )

DIGEST OF CASES.

( 8546 )

MORTGAGE— con<cZ.

8. REDEMPTION— co»<d.
(a) Right of Redemption — contd.
defendant 2, on payment of the due to him (defend-
ant 2) under the foreclosure decree. Held, revers-
ing the decree, that H, the prior mortgagee, had a
right to redeem superior to that of U, the sub-
sequent mortgagee. Hassanbhi u. Umaji (1904)
I. L. R. 28 Bom. 153

82. Transfer of Pro-
perty Act (IV of 1S82), s. 93— Failure to pay money
on date fixed — Court's power to enlarge time for
payment. The failure to pay money on or before the
date mentioned in the redemption-decree does not
absolutely bar the mortgagor's right to obtain pos-
session of the mortgaged property : since the Court
may, under s. 93 of the Transfer of Property Act
(IV of 1882) upon good cause shown, enlarge the
time for paj-ment upon such terms as it thinks
fit. The plaintiff within three years of the date of
the decree produced in Court the decretal amount
and prayed for possession of the mortgaged pro-
perty. Held, that such an application could be
treated as one for enlargement of time under s. 93
of the Transfer of Property Act. Iswae Lingo v.
GoPAL JivAji (1904) . I. L. E. 28 Bom. 102

83. Redemption suit

— Mortgage by persons other than the real owner —
Acquiescence of the real owner — Mortgagee's pos-
session adverse to the real owner. On the 24th Oc-
tober, 1873, one Durgan, widow of Govindji,
mortgaged with possession certain land to Godaji,
the husband of her daughter Rau. After Durgan's
death in 1882, the plaintiffs under a belief then
prevalent, claimed as the nearest waras hhaubands
of Govindji to have succeeded to the mortgaged
property, to the exclusion of Govindji' s daughter,
Rau, and disputed the validity of Durgan's mort-
gage. Godaji thereupon, on the 22nd June 1882,
accepted a mortgage from the plaintiffs. Rau
was aware of the transaction and acquiesced in it.
In July 1889, Rau sold her equity of redemp-
tion to one Savliaram, who paid off Godaji's mort-
gage and recovered possession of the mortgaged pro-
perty. The plaintiffs, in September 1899, brought
a suit against Godaji and Savliaram, defendants
1 and 2, to redeem the mortgage of the 22nd June
1882. Held, that the plaintiffs were entitled to
redeem, Rau's claim to the equity of redemption
having become time barred. After the mortgage in
suit Godaji held the property as plaintiffs' mortgagee
and his possession must be attributed to a right
derived from them, Rau being aware of what was
being done and having acquiesced in it. Though
Godaji's possession in its inception was not by
virtue of a right derived from the plaintiffs, still his
possession was from the 22nd June 1882 under
colour of a right derived from them and so adverse
to Rau, and that to her knowledge, although
Godaji took possession under a mistake common
to all as to Rau's rights, still that circumstance
did not make his possession any the less adverse.

PUKSHOTTAM V. SaGAJI (1904)

I. L. K. 28 Bom. 87
VOL. III.

MORTQ A G E— cotjW.

8. REDEMPTION— con<rf.
(a) Right of Redemption — contd.

84. Sale of mort-

gaged property— Execution of decree— Transfer of
Property Act (IV of 1882], ss. 86, 88, 89— Right to
redeem— Order absolute for sale— Stoppage of sale by
payment of mortgage-debt — Civil Procedure Code (Act
XIV oi 1882), s. 291— High Court Circular Order
No. 13 of 27 th April 1892. The concluding words
of s. 89 of the Transfer of Property Act, viz.,
" thereupon the defendant's right to redeem and
the security shall both be extinguished," relate
to the actual sale and distribution of the pro-
ceeds and not merely to the passing of the order
absolute for sale. A mortgagor judgment-debtor
is entitled to stop the sale of the mortgaged pro-
perty in execution of a mortgage-decree by pay-
ment of the debt before the sale actually takes
place, although an order absolute for sale
may have already been passed. Mallikarjunadu
Setti V. Lingamurti Pantulu, I. L. R. 25 Mad.
244 ; Krishnaji v. Maliadew Vinayak, I. L. R. 26
Bom. 104 ; Raja Ram Singhji v. Chuni Lai, I.
L. R. 19 All. 205 ; and Shyam Kishan v. Sundar
Ko(r, I. L. R. 31 Calc. 373, followed. Jogendro
Nath Mukerjee v. Methana Abraham, 6 C. W. N.
769, and Popple v. Sylvester, L. R. 22 Ch. D. 98,
referred to. Bibijan Bibi r. Sachi Bewah (1904)
I. L. R. 31 Calc. 863
s.c. 8 C. W. N. 684

85.

Prior and subsequent in-

eumbranees — Sale under decree on puisne moit-
gage notifying prior incumbrances — Purchase by
decree-holder — Prior incumbrances declared invalid —
Siiit by owner to recover from decree-holder auction-
purchaser the amount due on the ])rior incumbrances.
Certain villages were put up to sale in execution of
a decree under s. 88 of the Transfer of Propertj- Act.
1882, and it was notified in the proclamation of
sale issued under s. 287 of the Code of Civil Pro-
cedure that there were two prior mortgages on
the property to be sold of the 25th of May and the
2nd of December 1877, respectively. The holder of
the decree under execution obtained leave from the
Court to bid at the sale, and purchased eight villages
at a very low figure. Meanwhile, as the result of
suits on the two mortgages of 1877, those mortgages
were declared to be invalid. Subsequently the
person entitled to the proprietarj' rights in the mort-
gaged property sued to recover from the auction-
purchaser and her representatives in interest the
amoirnts due on the two mortgages of 1877. Held
by Stanley, C.J., and Blair, J. (disseniienle
Burkitt, J.), that what the decree-holder auction-
purchaser purchased was only the equity of redemp-
tion in the mortgaged property and not the whole of
the proprietary rights therein. The prior mort-
gages of 1877 having been found to be invalid, the
rightful owner of the property was in equity entitled
to recover from such purchaser of the equity of
redemption such amount of the principal and in-
terest secured by those mortgages as was propor-
tionate to the value of the property, the equity of

12 Q

( S547 )

DIGEST OF CASE;

( 8548 )

MOETGAGE— contd.

S. REDEMPTION— con</f.
(a) Right of Redemption- — contd.
redemption in which had been purchasei SunibJiu
Nath Pandayx. Go'.ah Singh, L. E. 14 I. A. 77 ;
PeUachi Chettiar v. Sangili Veera Pandia Chinna-
tJiamhiar, L. R. 11 1. A. '4, and Abdul Aziz Khan x.
Appayammi Saicker, L. R. 31 I. A. 1, referred to.
Per BCBKITT, ./. (contra) — Whether or not in a pro-
perly framed suit tendering the amount due on the
auction-purchaser's mortgage and the amount paid
by the auction-purchaser for the property bought
by her the plaintifi could recover possession of the
property mortgaged in the present suit, which was
framed "as a suit for the recovery of unpaid purchase
money, no decree for the payment of the amounts
due on the prior mortgages could be passed. A
notification by a Cotul executing a decree for sale of
immoveable property that the property about to be
sold is encumbered does not guarantee that the
incumbrances notified are valid incumbrances or
that they are the only incumbrances on the pro-
perty ; nor in this case was there anything in the
conduct of the auction-purchaser, which estopped
her from denying the validity of the prior mort-
gages. The auction-purchaser was entitled to
retain the benefit of the bargain, which she had
secured. I>-ayat Scgh v. IzzAT-r>--yi5SA Bega3I

(1905) I. li. E. 27 AiL 97

86. Prior and subse-
quent mr/rtgages — RiidemfAion — Price to he 'paid by
a subsequent mortgagee redeeming after the mortgaged
property has been brought to sale awl purchased by the
yric/r rn/jrtgagef. — Rights of purchaser from prior mort-
gagee— Mortgagee in possession — Interest. A pur-
chased mortgaged property from the first mort-
gagee, who had purchased it at a sale in execution of
a decree on his own mortgage without making the
second mortgagee a party to his suit and then sued
to obtain k}ias possession as against the second
mortgagee, who had purchased the property under
his mortgage, without having made the first mort-
gagee a party to his own suit. Held, that the second
mortgagee was entitled to redeem, but only upon
the footing of the existence of the mortgage, as
Itetween A and the second mortgagee the former
stood in the possession of the first mortgagee and
that as between themselves, and without deciding
any question as to the relative rights of A and the
first mortgagee, the second mortgagee could only
redeem on payment of what was due upon the first
mortgage and not merely of the sum for which A
had purchased. Held, further, that if A had been in
actual possession for any period he must either as
against the interest bring into account any profits
he had received or be disallowed interest during
that period. Collim v. Riggi, 14 WaU. 491 ; Nil-
kant Banerji v. Suresh Chandra Mu'Hck, I. L. R. 12
Cole, ill, and Sivati Odayan v. Ramasuhhayyar,
I. L. R. 21 Ma/1, fii, referred to. GmiSH Chuxdee
Naxdi f. Kedae Nath KcxDcaoOG)

I. L. R. 33 Calc. 590
B.C. 10 C. W. N. 592

87. Redemption money paid

into Court, but part sabsequentiy with-

MORTGAGE— conW.

8. REDEMPTION— confcf.
(a) Right of P.EDEiiPTioy — contd.
drawn in execution of plaintiffs decree
for costs — Execution of decree. Where the fall
amotmt fixed by the Court in a decree for redemp-
tion of a mortgage was paid into Court within the
time limited by the decree, it was held that the
plaintiS's mortgagors did not lose their right to
possession of the mortgaged property by the fact
of their having attaihed and withdrawn from Court
a portion of the sum so paid in execution of their
decree for costs of the suit. PARiiAyA>-D v. LrKMiM
Das (1905) . . . I. L. R. 27 All. 392
88. Adverse possession by-
mortgagee — Mortgagor and mortgagee — Redemp-
tion, equity of — Effect — Purchase by mortgagee at
Co'id iole—VaJ;d:ty— Execution sales, validity of —
Jurisdiction, want of — Irregularity — Deceased debtor''s
estate — Legal representative and guardian of minor set
up by creditor accepted by Court without enquiry —
S unity. A mortgagee in possession purchased the
I mortgaged propt-rties through b'^namdar-^ at c-rtain
execution-sales and resisted a sidt for redemption on
the ground that since the date of these sales, no ac-
counts had been demanded by or rendered to the
mortgagor and that the mortgagee was in adverse
possession of the equity of redemption : Held, over-
ruling the plea, that as between mortgagor and
mortc'agee, neither exclusive possession by the mort-
gagee for any length of time short of the statutory
! period of sixty years, nor any acquiescence by the
I mortgagor not amounting to a release of the equity
of redemption, would be a bar or defence to a suit
for redemption, if the mortgagor be otherwise en-
titled to redeem. The view that a mortgagee can-
not acquire the equity of redemption directly or
indirectly by purchase at a Court sale except by a
suit brought on the mortgage, is based on a misap-
plication of a sound principle of equity. ITiat pria-
'■ ciple is — that a mortgagee cannot by obtaining a
i money decree for the mortgage debt and taking the
! equity of redemption in execution, relieve himself
: of his obligation as mortgagee or deprive the mort-
gagor of his right to redeem on accounts taken, and
with the other safeguards usual in a suit on a mort-
gacre. A sale taking place in contravention of the
above principle cannot be treated as a nullity as the
irregularity is one of procedure only. Sales in exe-
cution of decrees cannot be treated as void on
grounds of any mere irregularities of procedure in
obtaining the decrees or in the execution of them.
But a Court has no jurisdiction to sell the property
t of persons, who were not parties to the proceeding
or properly represented on the record. As against
such jjersons the decrees and sales purporting
to be made would be a nullity and might be dis-
regarded without any proceeding to set them aside.
Klshen Chunder Ohose v. Ashoorun, Marsh. oi7,
followed. A suit, which purported to be brought
against one " N, deceased, by his legal repre-
sentative A, by his guardian, his uncle A N '
was decreed, the Judge accepting, without question
and without applying his mind to the matter, the
statement that A (who was a son of A^, and a minor

( 8549 )

DIGEST or CASE&

( 8550 )

MOHTQAGE— con/J.

S. REDEMPTION— i:o?U(f.
(a) Right of Redemption — conid.
■was the legal representative of JV and A. X ■was
his gnardian. JV's properties were sold in execution
of this decree. Held, that the estate of JV was not
represented in law or in fact in the suit aiid there-
fore the sale of his property was without jurisdic-
tion and nuU and void, and that the share of A
himself in JV's estate was not bound. MaUcariun
V. Xarhari, 5 C. W. X. 10 : s.c. L. R. 27 I. A. 216,
distinguished. Kktaka-tmat. v. Dahi (1904)

I. li. E. 32 Calc. 296

s.c. 9 C. W. K". 201

L. R. 32 I. A. 23

89. Clog on redemption — Con-
tract to pay off iuhseqneni mcrtgage-i before redeem-
ing prior mortgage — Validity — Contract to pay off
an unsecured debt — Tran-sfer of Property Act {IV of
1SS2), s. 67. In a suit for redemption by a mort-
gagor the mortgagee set up by way of 'defence a
contract entered into at the time of the execution of
four bonds of later dates, to the egect that the
mortgage^ in suit was not to be redeemed, without
paying oft the sums due under the subsequent bonds.
One of these bonds was a simple bonc^ the others
mortgage bonds sectired on the same property.
Heid, that, so far as these mortgage bonds were
concerned, the contract was enforceable and must be
given efiect to, but as regards the simple bond the
contract was a clog on the equity of redemption
and was not enforceable. DraGA Pebshad r.
Dc^CHi Rot (1905) . . . 9 C. W. N. 789

90. CJoQ on equity of

redemption — Profits — Interest. Held, that the fol-
lowing terms contained in a usufructuary mortgage
did not constitute a clog on the mortgagors' right
of redemption : — " The interest of the mortgage
money and the profits of the lands mortgaged
have been declared to be equal. We shall obtain
redemption of the mortgaged property from the
possession of the mortgagee on pavment of the
■whole of the mortgage money in a lump sum in the
month of Jeth, when the land is unoccupied by
crops. The mortgagee is at liberty to cultivate
the land mortgaged himself or have it cultivated by
any other person. We shall have no objection.
Should the whole or part of the land mortgaged be
cultivated by us in any year, we shall ^pay the
arrears due by us at the time of harvest and before
the Government instalment has fallen due. If we
raise any objection, the mortgagee shall be at liberty
■to recover the same from us and our mortgaged and
other moveable and immoveable propenies bv
means of distress or a suit. Should any part thereof
remain unpaid, we shaU pay it together -with interest
•t one rupee per cent, per mensem and the mort-
gage money in a lump sum at the time of the mort-
gage. We shall not be entitled to redemption with-
out its payment." Sheo Shanl-ar v. Parma Mahton,
I. L. R. 26 A U. 569, distingtiished. Chatteb Mal
«. Baij Xath (1905) . I. L. R. 28 Aa 712

91- Sub-mortgage — Redemption

— Sub-mortgagees impleaded — .Vo specijic prayer to

MOHTGAGE—conf-i.

S. REDEMPTION— fon^rf.
(a) Right of Redemption — conid.
redeem sub-mortgage. The plaintife had purchased
the equity of redemption of all the mongaged
property, part of which had been sub-mortgaged.
Held, that, having made the sub-mortgagees
parties, they were entitled to redeem the
whole mortgage, although they might not have
specifically sought to redeem "the sub-mortgage ;
that the proper course was to ascertain what sum
was due to the sub-mortgagees and to direct pay-
ment of that amount to the sub-mortgagees out
of the amotmt payable for redemption of the whole
mortgage. Xarayan Vitha v. Ganoji, I. L. R. 15
Bom. 692, folio-wed. Goktx Dass i-.' Debi Psasad
(190G) . . . . I. L R 28 AIL 638

92.

Eight of redemption — Trans-

fer of Property Ad {li' of 1SS2), s. 99— Mortgaged
property purchased by niortgagee in execution of a
money decree on the mortgage debt, not redeemable by
the mortgagor. A mortgagee sued the mortgagor for
an instalment of the mortgage debt and obtained
a simple money decree. In execution of such decree
the mortgagee brought to sale and purchased the
mortgaged property. In a suit by the mortgagor
brought to redeem the mortgaged property. Hdd,
that the mortgagor, having been a partv to the
decree and to the order for sale, was not entitled to
redeem. Muthuraman Chetty v. Etiappisami. I. L.
R. 22 Had. 372, followed. Mortand Ba^.ahrishna
Bhat V. Dhx>ndo Damodar KuJl-ami, I. L. R. 22 Bom,
624, Kamini Debi v. Ratnalochan Sirlar, 5 B. L.
R. ^50, dissented from. Dhaba^'ikota Vexkay ya
c. BrPHARAzr Sueayya Gabu (1907)

L li. E. 30 Mad. 362
93. Redemption, right

of— Transfer of Property Act (IV ci

— Equitable principles of s. 99 not a: f

a purchaser not the mortgagee and r. -'i

suit in which property teas sold — Sa'e i- . . ..._•»

of s. 99 only voidable, not void — Cirn Procedure
Code {Act XIV of 1SS2), s. 244, bar to parties
questioning sale. The equitable right of the mort-
gagor to redeem property brought to sale in contra-
vention of s. 99 of the Transfer of Property Act by
the mortgage, cannot arise when the auction -pxir-
chaser at such sale is not the mortgagee, and is no
partv to the suit in which the propertv was sold.
Moyan Pathutti v. Paburan, I. L R. 22 Mad.
3x7, distinguished- Such a sale is only voidable
not void. Parties to the suit must question the
validitv of the sale in execution and a separate suit
will be" barred by s. 244 of the Code of Gvil Pro-
cedure. McTHT r. Kakcpax (1907)

I. L. E. 30 Mad 313

9-1. Time for redemption —

Jiwi€ granted by first Court — Unsucce^ful appeaL
Where the defendant was allowed six months
by the first Court to pay o3 a mortgage debt,
and upon appeal by the defendant the appeal
was dismissed ; — Held, that the six months' time
allo-vred to the defendant should run from the

( 8551 )

DIGEST OF CASES.

( 8552 )

MORTGAGE— conirf.

8. REDEMPTION— conici.

(a) Right of Redemption — contd.

date of the first Court's decree and not of the

appellate decree. Faijuddi Sardar v. Asimuddi

Biswas (1907) . . . 11 C W. N. 679

95, Perpetual lessee — Redemp-
tion, suit for — Transfer of Property Act {IV of
1SS2), s. 91 — Mortgage — TI7to may redeem. In a
suit for redemption of a mortgage the plaintiff was
a perpetual lessee of the mortgaged premises from
the mortgagor, holding under a lease granted upon
payment of a premium of R800, with a yearly
rental of R40 odd. By the terms of the lease the
lessee was not liable to be ejected, even for non-
payment of rent, while, if the title of the lessors
proved defective, the lessee was entitled to a refund
of the premium. Held, that the lessee was under
the above circumstances entitled to redeem.
Paya Matatliil Appu v. Kovamel Amina, I. L. R. 19
Mad. 151 ; Radha Pershad Misser v. Monohur
Das, I. L. R. 6 Calc. 317 ; Jugal Kissore Lai Singh
Deo V. Kartic Chunder Chottopadhya, I. L. R. 21
Calc. 116 ; Kasumunnissa Bibee v. Nilratna Base,
I. L. R. 8 Calc. 79 ; Girish Chundar Dey v. Jvra-
moni De, 5 C. W. N. S3 ; and Ra7n Subhag v. Nar
Singh, I. L. R. 27 All. 472, referred to. Raghxj-
NANDAN Prasad v. Ambika Singh (1907)

I. L. R. 29 All. 679

96.

Puisne mortgagee — Puisne

mortgagee, right of, to sell subject to prior mortgage —
Decree in .suit hy p%iisne mortgagee — Transfer of Pro-
perty Act (IT of 1882), ss. 51, 75, 85, 96— Right of
purchaser from first mortgagee to improvements on re-
demption by puisne mortgagee. In a suit brought on
a mortgage, where all the parties interested are
before the Court, it is the duty of the Court, if it can,
to make a decree, which will deal finally with all the
questions raised in the suit and preclude further
litigation to enforce rights arising out of the mort-
gage or mortgages in question in the suit. This is
the obvious intention of s. 85 of the Transfer of
Property Act. Under s. 75 of the Transfer of
Property Act the prior mortgagee has the right
to require the second mortgagee to redeem him or to
submit to a sale of whatever interest he has in the
property. In a suit brought by the puisne mort-
gagee, to which the prior mortgagee, who has
also become the owner of the equity of redemption
is made a party, the decree must direct the redemp-
tion by the second mortgagee and then for sale," if
the prior mortgagee as owner of the equity of
redemption does not redeem the second mortgage.
The second mortgagee must show sufficient reason
for departing from this rule and is not entitled to a
decree for sale subject to the first mortgage, in the
absence of special circumstance.". The second
mortgagee on redeeming is bound to pay the full
amount due on the first mortgage, though the first
mortgagee had sold his right for a smaller sum.
S. 90 of the Transfer of Property Act does not sup-
port the view that the puisne mortgagee is not re-
quired to redeem the prior mortgagee, when the

MORTGAGE -con'rf.

8. REDEMPTION— cowfrf.

[a) Right of Redemption — contd.
latter is a party to the suit. Where the prior mort-
gagee sues for and obtains a decree for sale without
making the second mortgagee a party and himself
purchases the property in execution, a purchaser
of the property from him cannot claim the value of
improvements from the second mortgagee under s.
51 of the Transfer of Property Act in a suit by the
second mortgagee to enforce the rights under his
mortgage. A mortgagee of property has the right
to bring to sale all buildings on such property, whe-
ther erected before or subsequent to the mortgage.
Rangayya Chattiar v. Parthasarthi Naicker, I. L. R.
20 Mad. 120, followed. Venkataramana Iyer v.
GoMPERTZ (1908) . . I. li. R. 31 Mad. 25

97. Purchase of equity of

redemption — Equity of redemption purchased
by a mortgagee from one of the mortgagors, effect
of. Where a mortgagor died leaving three sons,
who became equally entitled to the equity of re-
demption, and one of the sons sold his one-third
share in the equity of redemption to the plaintiff
mortgagee : Held, that the plaintiff was entitled in
a suit to realise his mortgage debt to give credit
only for that which his vendor would have been
liable to pay, namely, one-third of the mortgage
debt. MuTTi- Lal Pai. v. Nandu Lal Neooi
(1908) . . . 12 C. W. N. 745

98. Interpleader suit — Practice

— Suit to redeem mortgage against two parties
claiming mortgage money — Appropriate relief. When
a mortgagor was about to pay off the mort-
gage amount to an assignee of the mortgage the
mortgagee disputed the assignment and also claimed
to be paid the mortgage amount. The mortgagor
thereupon filed a suit, impleading both the mort-
gagee and assignee as defendants. The plaint con-
tained, in substance, a claim for redemption, but it
also prayed that the defendants should be required
to interplead concerning their claims to the mort-
gage amount and that the mortgagor should be
indemnified in consequence of the loss of the original
mortgage-deed. Prior to the hearing the defendants
agreed that the assignee was entitled to receive the
mortgage amount. The suit was dimisssed on the
grounds that no interpleader suit could lie as the
plaintiff sought an indemnity from one of the de-
fendants, which gave him a personal interest in the
suit. On appeal: He'd, that it -iv as erroneous to
treat the suit as only one of interpleader. Inasmuch
as the plaint also contained in substance a claim for
redemption, that was the appropriate relief under
the circumstances. Vyvyan v. Vyvyan, 4 De 0. F.
jfc J. 183, followed. Jagganath Hiralal Tttlka
V. Kera (1908) . . I. L. R. 32 Bom. 592

99.

Usufructuary mortgage —

Suit for redemption— Subsequent suit to recover
surplus profits — Limitation Act {XV of 1877)^
Sch. II, Art. 105— Transfer of Property Ad (/I
of 1882), s. 92. In a suit for redemption of a
usufructuary mortgage the mortgagor is bound to

( 8553 )

DIGEST OP CASES.

( 8554 )

T«[ORTGA G-E—contd.

8. REDEMPTION— conM.
(a) Right of Redemption — contd.
•claim for surplus profits, if any, payable by the
TDOrtgagce. S. 43 of the Code of Civil Procedure is
a bar to the recovery of such profits by means of
a separate suit. Art. 105 of the second schedule
to the Limitation Act, 1877, applies to a case where
the mortgagor gets possession otherwise than by
means of a suit for redemption. Vinayak Shivrao
Dighe v. Dattatraya Gopal, I. L. R. 26 Bom. 661 ;
Rukhminihai v. Venkatesh, I. L. R. 31 Bom. 527 ;
Satyabadi Behara v. Harabati, I. L. R. 34 Cede. 223 ;
Ka'shi V. Bazrang Prasad, I. L. R. 30 All. 36 ; and
Balaji v. Tamanganda, 6 Bom. H. C. 97, referred to.
Ram Din v. Bhup Singh a908)

I. L. R. 30 All. 225

100. Usufructuary

mortgage — Ouster of mottgagees — Adverse possession.
One of the purchasers of the equity of redemption
in a usufructuary mortgage ousted" the mortgagees
and took possession of the entire mortgaged pro-
perty, which he retained for more than twelve
years ; but it was found that he had never denied
the mortgagors' title, and that the mortgagors had
no right to present possession. Held, that there
•was no adverse possession as against the other
mortgagors, although there was as against the
mortgagees, and that the right of redemption was
not lost : the ouster of the mortgagees did not
entitle the plaintiff to re-enter into possession.
Muhammad Husain v. Mid Chand, I. L. R. 27 All.
395 ; Chinto v. Janki, I. L. R. 18 Bom. 51 ; Bejoy
Chunder Banerjee v. Kally Prosonno Mookerjee,
I. L. R. 4 Calc. 327 ; and VHhoba v. Gangaram,
12 Bom. H. C. 180, referred to. Ismdar Khan v.
Ahmad Husain (1907) . I. L. R. 30 All. 119

101.

subsequently
mortgaged to several persons— Pr/or tnort-
gage of ivhole property — Rights of mortgagees,
how to be adjusted — Right to redeem — Successive
redemption suits by different mortgagees — Res judi-
cata—Civil Procedure Code [Act XIV of 1882),
6. 13, Expl. II. A property belonging to A and B
was mortgaged to X in 1879. In 1888 A mortgaged
his share only to Y and in 1897 B similarly m Tt-
gaged his share to Z. yhad redeemefl A' in 1891.
Z first sought to redeem Y in respect of the share
mortgaged to himself, but on F's objection that the
whole property should be redeemed, Z's suit was dis-
missed and he subsequently instituted a suit to
redeem the whole property and succeeded. In a
suit by 7 to redeem Z in respect of the share mort-
gaged to Y. Ifehl, that, as Zdid not accept F's offer
to redeem the whole property, Y was entitled to
redeem the share mortgaged to him. Thakur
Jowahie v. Thakur Baldeo Baksh Sinch (1907)
12 C. W. N. 515

102. Further advances on old

security — Clog on the equity of redemption —
Stipulation to the effect that the later advance
■will be paid at redemption of earlier mortgage.
Where in a suit for redemption the mortgagee set

MORTGAGE— conW.

8. REDEMPTION— co?i<cZ.
(a) Right of Redemption — concld.
up five other later bonds and claimed that before re-
demption of the original mortgage could be effected
those bonds should also be redeemed : Held, that
as the bonds created charges on the property and
there was a special stipulation that they should be
paid off before the mortgage was redeemed, the
claim was a good one. HeU, also, that such a
stipulation was not a clog or fetter on the equity of
redemption. Allu Khan v. Roshan Khnn, I. L. R.
4 All. 85 ; Muhammad Abdul H amid v. Juiraj Mai,
All. Weekly Nota (1906) 267 ; Bhikam Singh v.
Shankar Daynl, 6 A. L. J. 255; Sheo SJiankar ■<' .
Parma Mahton, All. Weekly Notes (1904) 123 ;
Rugad Singh v. Sat Narayan Singh, All. Weekly
Notes (1904) 208 ; Khuda Bakhsh v. Alimunissa, All.
Weekly Notes [1904) 273 ; Tajjoo Bibi v. Bhagwan
Prasad, I. L. R. 16 All. 295 ; Bhartu v. Dalip, All.
Weekly Notes (1906) 278; Dorasami v. Venkata
Sheshayi/ar, I. L. R. 25 Mad. 115, nnd Noakes v.
Rice, [1902] A. C 24, referred to. Raxjit Khan r.
Ramdhan Singh tl9091 . I. L. R. 31 All. 482

(6) Redemption of Portion of Property.

103. Division of liability under

mortgage. \Vhere money is advanced on a
mortgage-debt, the liability cannot be divided.

MUJEEDOONISSA V. DiLDAR HoSSEIN 4 W. R. 216

104.

Right to redeem share of

property where part has been sold for ar-
rears of revenue. A mortgagor cannot redeem
a share of the mortgaged property. This rule is not
affected by the sale of part of the mortgaged lands
for arrears of revenue. Hashim v. Aujeet Singh
W. R. 1864, 217

Ra>I BaLUK SlNGl

105.

Ram Loll Doss.

21 W. R. 428

Payment of proportionate

amount of debt — Right to retain property till
whole is paid. A zur-i-peshgidar is entitled to re-
tain the whole property pledged to him until the
whol- debt has b.'cn piid to him. It is optional
with him to relinquish any portion either on receiv-
ing a proportionate' amount of what is due to him,
or otherwise. Hureehur Singh ;■. Dabke S-VHuy
W. R. 1864, 260

106. Redemption of separate

share — Right to retain possession till whole debt
paid. A mortgagee is entitled to hold possession till
the mortgage-debt is fully paid, and no person re-
presenting the original mortgagor, and claiming any
portion of the mortgaged propertj', can sue to re-
deem his separate share, without proof of the satis-
faction of the entire debt. Razeeuoddeex v.
Jhubboo Singh . . . W. R. 1864, 75

107. Redemption of

whole estate by one of sevral mortgagors. Mort-
gage-debts are indivisible except where there is a dis-
tinct notice on the face of the mortgage-deed of the

( 8555 )

DIGEST OF CASES.

( 8556 J

MORTGAGE-con/i.

8. REDEMPTION— cow^f?.

ih) Redemption of Portion op Pkoperty — corUd.
separate shares of the mortgagors. One co-mort-
gagor or his representative may redeem the entire
estate, if joint and undivided, by payment of the
whole of the mortgage-money. Ram Keisto
Manjhee v. Ameeeoonissa Bieee . 7 W. R. 314

Ali Reza v. Taeasoondeeee
108.

2 W. R. 150

Transfer of Pro-
-Partial redemp-

perty Act (IV of 1SS2), ss. 60, S'^
tion — Contribution. A mortgaged two houses to
£ for R200. C purchased at a Court-sale A's
interest in one of the houses, and sold it to the
plaintiff. The plaintiff sued to redeem the house,
and prayed that the mortgagee be ordered to
convey it to her on payment of R 100. Held, that
the suit should be dismissed. Kuppusami Chetti v.
Papathi Ammal . . I. li. K. 21 Mad. 369

109.

Payment of pro-

Where moneys were

portionate part of debt.

advanced to several mortgagors, who owned the
mortgaged land in certain defined shares, and the
mortgagee, by purchasing the interest of some of the
mortgagor in such land, broke up the joint security,
the remaining mortgagors were held to be entitled to
redeem on payment of a just proportion of the
moneys advanced. Keseee v. Seth Roshun Lal

2 W. W. 4

110. Payment of pro-
portionate part of debt. The mortgagors in a joint
mortgage transaction are jointly liable to the
mortgagees for the whole of the mortgage-debt, and
some out of the number cannot bring a suit to re-
deem their own shares of the mortgaged property
by payment of a proportional amount of the mort-
gage-debt. Salig Rabi Singh v. Baetjn Rai

4 K. W. 92

111.

Suit to redeem

land in possession of co-owner of equity of redemp-
tion. Where a mortgagee in possession acquires a
right to a share in the property mortgaged, he can-
not be compelled to surrender the mortgaged pro-
perty on payment of the debt, or any part of it on
payment of a proportionate amount of the debt,
until the mortgagor has, by a proper suit for parti-
tion, ascertained definitely the shares of the co-
owners. MaEAKAE AKATH KONDAEAKAYn. MaMU V.

Pxjnjapatath Kutttj . . I. Ij. E,. 6 Mad. 61

112.

Mortgage

co-sharer — Bight of one or more co-ow7iers to re-
deem in absence of partition. When several owners
of an undivided share in immoveable property
mortgage their share with possession to another
undivided sharer, a smaller number than the whole
body of co-mortgagors cannot sue to redeem the
whole mortgage until there has been a partition
of the property mortgaged among the several co-
owners. Marakar Akath Kondarakayil Mamu v.
Punjapatath Kuttu, 1. L. R. 6 Mad. 61, followed.
Karo Hart Bhave v. Vithalbhat, I. L. R. 10 Bom. 61S,

MORTGAGE— cojiirf.

8. REDEMPTION— conirf.
(6) Redemption of Portion of Property — contd.
distinguished. Thillai Chetti v. Ramanatha
Ayyan , . . I. L. R. 20 Mad. 295

113. One of several

joint mortgagors before partition — Mortgagee who
has acquired a share in the equity of redemption.
The o-RTier of a share in the equity of redemption
need not obtain partition before suing for redemp-
tion. He is entitled to redeem the whole mort-
gage, and the fact that the mortgagee has himself
purchased a portion of the equity of redemption
does not defeat that right. Marakar Akath Kon-
darakayil Mamu V. Punjapatath Kuttu, I. L. R. 6
Mad. 61, dissented from. Mora Joshi v. Rajni-
chandea Dinkar Joshi . I. L. R. 15 Bom. 24

Bhikaji Daji v. Lakshman Bala.

I. li. R. 15 Bom. 27 note

114.

— Mortgage by three
of redemption — Re-

sharers — Partition of equity

demption by two sharers — Excess payment — Suit for
redemption by the third sharer — Set-off. Three im-
divided brothers mortgaged certain land to the de-
fendant. They afterwards separated and partition-
ed their property. Two of them redeemed their
respective shares of the mortgaged land. Besides
paying the defendant two-thirds of the sum due
on the mortgage, they paid him R 189-13-4, being
two-thirds of a sum of R284:-12-0, which he alleged
he had been obliged to pay as assessment in respect
of the mortgagee! lands. Subsequently the plaint-
iff had purchased the whole of the lands comprised
in the mortgage, and he now sued to redeem the
one-third share which remained in mortgage. The
defendant claimed to charge the plaintiff with
the remaining one-third of the sum which he alleged
he had paid as assessment. The Subordinate Judge
disallowed the defendant's claim, and ordered re-
demption on payment by the plamtiff of R570-10-0,
being one-third of the sum due on the mortgage. In
appeal, the District Judge found that the defendant
had not proved the alleged payment of assessment,
and he allowed the plaintiff to deduct from the sum
due on the mortgage R 189-13-4 which had been paid
to the defendant by the other two mortgagors. On
second appeal by defendant ; — Held, varying the
decree of the District Judge, that the plaintiff' was
not entitled to this deduction. The three mortga-
gors had severed their interests. The plaintiff's
right to redeem his one-third was perfectly distinct
from the redemption by the other two mortgagors,
and there was no longer any joint account to which
the sums previously paid could be credited. Lak-
SHUMAN Giriraya Naik V. Madhav Krishna
Shenvi . . . . I. L. R. 15 Bom. 186

115. Purchase of

eqU'ty of redemption of part of proper y by one of
several mortgagees — Right of redemption of pur-
chaser of another part. Where one of several mort-
gagees has purchased the equity of redemption as to
a part of the mortgaged property, the purchaser of
another part is not thereby entitled to redeem^

( 8557 )

DIGEST OF CASES.

( 8558 )

MORTGAGE— co«<rf.

8. REDEMPTION— con<(?.
(6) Redemption of Portion of Property — contd.
unless he discharges the whole mortgaso-debt.
SoBHA Sah V. Inderjeet . . 5 N. W. 148

116.

Purchaser of

118.

- Division of

ij mortgagee of
The rule of law

120.

estate jointly and separately mortgaged by co-sharers.
The purchaser of a share in an estate which
had been jointly mortgaged by the several share-
holders, and subsequently further charged by
all by deeds to which one or more were parties, sued
for the redemption of the whole estate by payment
of the original mortgage-debt. Held, that, represent-
ing the whole of the co-sharers, he must, if he de-
sired to redeem, discharge all the debts with which
they had jointly or severally charged the property.
Bhugwan Dass v. Mahomed Jafer 4 N. "W. 161

117 Purchase by

mortgagee of a share in mortgaged property — Be-
demption of mortgage. Where all the proprietors of
an estate joined in mortgaging it, and the mort- \
gagee subsequently purchased the share in such
estate of one of the mortgagors, thereby breaking
the joint character of the mortgage, and one of the ,
mortgagors sued to redeem his own share and also j
the share of B, another of the mortgagors : — Held.
that he was entitled to redeem his own share, but
he could not redeem B's shan- against the will of
the mortgagee. Kceay Mal v. Puean Mal '

I. L. B. 2 All. 565 |

MORTGAGE— conW.

8. REDEMPTION— conirf.
(6) Redempti"N of Portii'N of Property — contd.
mortgagees has acquired the equity of redemption
of the share of one of the mortgagors in the
mortgaged property does not give another of the
mortgagors the right to redeem his share in the
mortgaged property. Sobha Shah v. Inderjeet, 5
N. W. 148, distinguished. Kuray Mal v. Puran
Mal, I. L. R. 2 All. 565, and Azimvt Ali Khan v.
Jauahir Singh, 13 Moo. I. A. 404, referred to.
Mahtab Rai v. Sant Lal . I. Ij. R. 5 All. 276

121. Usufructuary

mortgage — Satisfaction of mortgage-debt from usu-
fruct— Sidt for uhole niortgaged proj/erty by some
of several mortgagors. In a suit by some of several
co-mortgagors to redeem the entire property mort-
gaged, on the ground that the mortgage-debt had
been satisfied out of the usufruct : — Held that the
plaintiiis could only claim their o-rna shares, and the
Court of first instance should determme the extent
of the shares after making the other co-mortgagors
parties. Fakir Bakhsh v. Sadat Ali

I. L. R. 7 Ali. 376

mortgage-security — Acquisition
oicnership of mortgaged property.
against breaking up the integrity of a mortgage- j
security is a rule aiming at the protection of the j
mortgagee, and is not applicable to cases where the |
mortgagee himself has acquired the ownership of a
portion of the mortgaged property- KroHAi v. 1
Sheo Dayal . . . I. L. R. 10 All. 570

119. Transfer of i

Property Act {IV of ISS'^'), s. 6('Suit to redeem \
entire mortgage by purchaser of equity of redemp-
tion of a portion — Indivisibility of mortgage. \
The mortgagors of four items of property origin- [
ally mortgaged for an entire sum sold the equity
of redemx-)tion of one item to the plaintiff who
now sued the mortgagee to redeem the whole of
the four items. Held, that he was entitled so to do. i
A mortgage for an entire sum is frum its very pur- ,
pose indivisible ; and that character of indivisi-
bility exists with reference not only to the mort-
gagee, but also to the mortgagor ; save by special
arrangement between all the parties mterested,
neither mortgagor nor mortgagee, nor persons ac-
quiring a partial interest through either, can obtain
relief under the mortgage except in consonance
with that principle of indivisibility. Huthasanan ^
Nambudri v. Parameswarax Nambudri

I. li. R. 22 Mad. 209 i

Purchase by one

of several mortgagees of a portion of the mortgaged
•property — Redemption by one of the mortgagors
of his own share. The fact that one of several

122.

Destruction of

indivisible character of property. Where the equity
of redemption of different plots of land in the posses-
sion of a usufructuary mortgagee under one entire
contract has been sold to two different persons and
the mortgagee has abandoned his possession of one
plot, and taken a lease from the purchaser of that
plot, and thereby destroyed the indivisibility of the
original contract, the purchaser of the other plot is
entitled to redeem his land on payment of a propor-
tionate amount of the mortgage-debt. Maeana

AjiMANNA v. PeNDYALA PERCBOTl-Lr

I. L. R. 3 Mad. 230

123.

Redemption of whole pro-

perty by owner of portion- Pwjortional con-
tribution. The owner of a part of the ecjuity of
redemption can redeem the whole property mort-
gaged from the mortgagee after paying the whole of
the money due on the mortgage, and has a lien on
the share of the co-o^-ner for the proportional con-
tribution of that share to the sum expended in
redemption, and this right or interest is as capable
of transfer as the aggregate group of interests called
the ownership. B in one transaction mortgaged
two fields (Nos. 20 and 22) to J. On the 16th
January 1809, in execution of a decree against B,
his interest in one of them (No. 22) was sold, and
R became the purchaser. R, however, did not take
possession. On the 25th April 1877, B paid off J'a
mortgage with money borrowed from the defendant
T', to whom B again mortgaged the two fields as
security. R died, leaving a son A, whose interest
in field" No. 22 was conveyed by his grandfather (iZ's
father) to the plaintiff. A was not a party to the
conveyance, but attested it with an expression of
assent. The jjlaintiff now sued the defendant V to
eject him from No. 22. Hell, that the defendant
T' had a lien on No. 22, and that the plaintiff could
not eject him without paying him the amoiint of

( 8559

DIGEST OF CASES.

( 8560 )

MORTGAGE— cowfd.

8. REDEMPTION— co?!/rtf.
(&) Redemption of Poetion of Property — contd.
such lien. \Yhen R purchased No. 22, he and B
stood in equal positions towards the mortgagee, J.
J might enforce his rights under the mortgage
against both together, or against either of the two,
leaving that one, if forced to pay the whole sum, to
recover the proper rateable contribution from the
other. On the other hand, R might redeem the
whole and seek contribution from B, or B might
redeem the whole and seek contribution from R.
^Miichever of the two redeemed, he would have a
lien on the share of the other for the proportional
contribution of that share to the sum expended in
redemption. B did, in fact, redeem the mortgage
to J, and thereupon became entitled to a lien on _R's
share of the property, viz., field No. 22. He then
mortgaged his whole interest to the defendant V,
including his lien on No. 22. R, who had not yet
obtained possession of No. 22, was entitled to get it
only on paying off the amount of the lien which
had passed to the defendant V. Vithal Nilkaxth

PlNJALE V. ViSHVASRAV BIN BaPTTJIKAV

I. L. R. 8 Bom. 497

124. Purchaser of

equity of redemption of part of an estate. The pur-
chaser of the equity of redemption of part of an
estate under mortgage is entitled to redeem the
whole of the mortgaged estate if the mortgagee in-
sists on his right to have it so redeemed. When the
former elects to pay the entire mortgage-debt, he
puts himself in the place of the mortgagee redeemed,
and acquires a right to treat the original mortgagor
as his mortgagor, and to hold that portion of the
estate in which he would have no interest but for
the payment as a security for any surplus payment
he may have made. Asansab Ravuthan v. Vama-
NA Rau . . . . I. L. R. 2 Mad. 223

125.

Assignee of por-

tion of equity of redemption — Suit for redemption.
In a suit by a person to whom seven-eighths of the
equity of redemption had been assigned for redemp-
tion, it was held that the plaintiff was entitled to
redeem the whole mortgage, although he was assig-
nee of only seven-eighths of the equity of redemption
as the owner of the remaining one-eighth was joined
as defendant,'and did not apply to be made plaintiff.
Nainappa Chbtti v. Chidambaram Chetti

I. li. R. 21 Mad. 18

126.

Mortgage of

property owned by co-sharers — Subsequent severance
of interests — Suit by one co-sharer to redeem more
than hif: share — Time of taking objection. In 1805
a two annas share in certain property held by co-
sharers was mortgaged to the defendant. The mort-
gage was effected by the mortgagor as manager of all
the co-sharers in union. In 1848 one of the co-
sharers redeemed his share of two pies in the mort-
gaged property, and a further share of two pies
therein was redeemed by a second co-sharer in 1867.
The plaintiff was admittedly the owner of another
two pies share ; but he now sued the defendant to re-

MORTGAGE— con/rf.

S. REDEMPTION— cowf(?.
(b) Redemption of Portion of Property — contd.

deem the whole of the property still unredeemed,
viz., a one anna eight pies share of the original mort-
gage. The defendant objected that the plaintiff
could only redeem his own two pies share, which
had become separated from the rest. The plaintiff
denied that the estate had been divided. Held, that
the plaintiff's claim being to redeem all that re-
mained of the estate in the mortgagee's possession,
the suit could not be maintained, unless all the
other persons interested in the equity of redemp-
tion were before tbe Court either as co-plaintiffs
or as defendants. Without their presence, the suit
could not be properly disposed of, and the excuse,
that the defendant did not take objection at the
right time, had, under such circumstances, no vali-
dity. As owner of a two pies share, which by con-
sent of all interested had become an estate wholly
separated from the other parts of the original
aggregate, the plaintiff would have been boimd
to set forth the transactions on which his right
rested. Ragho Salvi v. Balkrishna Sakharam

I. li. R. 9 Bom. 128

127. Partial redemption— Sewgr.

Reg. I of 17 98, s. 5. WTiere the contract between
mortgagor and a mortgagee provides for the pay-
ment of the principal sum on a specified date, and
for the payment in the meantime of interest there-
on, the mortgagor cannot have a partial redemp-
tion of the property under Regulation I of 1798,
which was not intended (s. 5) to alter the terms of a
contract settled between the parties except as re-
gards illegal interest. Should the mortgagee con-
sent to allow the principal sum or part of it, to be
paid off before the time fixed, he would be entitled,
when agreeing to this, to make the payment of in-
terest a condition of such redemption. Burno
MoYEE DossEE V. Benode Mohinee Chowdhrain
20 W. R. 387

128. Property re-
deemable on payment of two separate amounts.
Where a certain quantity of land was the subject of
one zur-i-peshgi mortgage redeemable on payment of
R225 to K and R275 to M, the mortgagees taking
possession in moieties, it was held that the mortgagor
could not recover any portion of the land until he
had paid up all the money due upon the mortgage, —
e.g., as long as he had not paid up the amount due
to M, he could not claim even the land allotted to
K, whose portion had been liquidated. Imam Ali v.
OoGRAH Singh .... 22 W. R. 262

129. Purchase of por-
tion of equity of redemption by mortgagees — Ap-
portionment of mortgage-debt. The plaintiffs in
this suit were purchasers of the equity of redemption
in a portion of certain mortgaged premises which
were sold in lots, and they brought this suit against
the mortgagees, who were also purchasers of the
equity of redemption of several of the lots. They
made the purchasers of the other lots parties to the
suit, and sought to redeem their own portion of the
estate and to recover possession of their own por-

( 8561 )

DIGEST OF CASES.

8562 )

MORTGAGE— cowf^.

8. REDEMPTION— con«(i.

(6) Redemption cif Portiox of Property — contd.
tion and the portion purchased by the purchasers
other than the mortcjagees, on payment into Court
of a sum sufficient to cover the proportion of the
mortgage-debt attributable to the said parcels.
The mode of applying the whole of the mortgage-
debt between the diSerent mouzahs of the mort-
gaged estate in such a case pointed out. AzmuT
(Ajijiut) Ali Khan v. Jowahir Singh

14 W. R. P. C. 17 : 13 Moo. I. A. 404
Bekon Singh v. Deen Dyal Lall 24 W. R. 47

130.

Mortgage of one

estate consisting of several villages — Purchase
by mortgagee of part of equity of redemption.
Where sixteen villages were included in one mort-
gage and the equity of redemption in one village was
sold to the plaintiffs :—Hdd, that they were entitled
to sue the mortgagee, who had purchased the equity
of redemption in twelve of the villages, for re-
demption of their own and three other villages ;
a previous suit for redemption of their one village
having been dismissed on the objection of the mort-
gagee that they w^ere not entitled to sue to redeem
their one village alone. Ahmed Ali Khan i;.
Jawahir Singh .... 1 Agra 3

131. Purchase of

equity of redemption of part of village. The entire
village was mortgaged to the defendants, who subse-
quently obtained by purchase the equity of redemp-
tion as to a portion of it. The equity of redemption
in another portion was sold to two other persons
jointly, one of whom (the plaintiff) claimed to re-
present by purchase, the other by descent. The
plaintiff having sued to redeem the whole share, the
defendants questioned the validity of the sale to the
persons through whom the plaintiff claimed, and im-
pugned the plaintiff's right as heir. Held, that the
mortgagees, who, on the occasion of the sale im-
pugned, had sued to establish their claim to pre-
emption, were not now entitled to question the sale ;
ancl, secondly, inasmuch as the estate, or the portion
of it held by the persons whom the plaintiff claimed
to represent, was a joint estate, the plaintiff, having
established his right to one moiety by purchase, was
entitled to redeem the whole, whether his title to the
other moiety by heirship was proved or not.
BiTHAL Nath v. Toolsee Ram . . 1 Agra 125
132. Purchase of por-
tion of equity of redemption. The equity of re-
demption in two mouzahs 'the mortgage being
joint) was sold in satisfaction of a decree by a third
party, and purchased partly by plaintiff and partly
by the mortgagee himself. Held, on plaintiff's
claim for redemption of the part of the mortgaged
property purchased by him, that under such cir-
cumstances the whole burden of the mortgage-debt
could not be thrown on a portion of the equity of
redemption, and the plaintiff would be entitled to
tedeem the portion of the property purchased by him
on paj'ment not of the whole, but of such portion of
the debt es was proportionate to the relative value

MORTGAGE— con^?.

8. REDEMPTION— conW.
[h) Redemption of Portion of Property — contd.
of the mortgaged properties. Mahtab Singh v.
Misree Lall .... 2 Agra 88
133. Purcluise of por-
tion of equity of redemption. An entire mouzah
had been mortgaged by way of usufructuary mort-
gage. The plaintiff subsequently purchased a four
annas share from the heirs of some of the mortga-
gors, and sued for possession of his purchased share
on the averment that the whole of the mortgage-
debt and interest had been .satisfied. Held, that
he was not precluded from .suing on the ground that
he claimed only a portion of the mortgaged property.
Lalla Dabee Pershad v. Behakee Lall

3 Agra 33

134. Suits heard to-
gether brought by co-sharers of tvhole estate. A
granted a zur-i-peshgi lease of certain lands to the
defendants for a fixed term of years, which was to
continue after the expiry of the term so long as the
money advanced remained unpaid. Shortly after-
wards A evicted the defendants, and sold the land to
C and D in the proportion of twelve annas and
four annas. The defendants sued all the three, and
obtained a decree for possession and mesne profits.
They never got back possession, but recovered the
mesne profits from A. On the expiry of the term of
the lease, C and D each brought a suit to redeem
his ovm share of the estate after payment into Court
of the money advanced, in amounts proportionate to
the share of the land purchased by each. 'Ihe two
suits were heard t; gether. Held, they were entitled
to redeem. Wczuroonnessa v. Saeedcn. Joy-
mungul Singh v. Saeedun

B. li. R. Sup. Vol. 613 : 6 W. R. 240

135. — Deposit of pro-
portionate share of debt — Purchase of portion of
equity of redemption by mortgagee. R mortgaged
to N certain property of which A' caused a moiety
to be sold in execution of a money-decree against iJ
and himself became the purchaser. The moiety was
sold subject to A"s mortgage in satisfaction of an-
other decree, and purchased by L. N, in exercise of
his rights as mortgagee, attached and proceeded to
sell the share of L in the portion purchased by liim ;
and L thereupon, with a view to staj- the sale, de-
posited an amount proportionate to the share held by
him. The sale, however, was allowed to proceed.
Held, in a suit brought by L against A' to set aside
the sale, ttuit he was entitled to a decree. Nathoo
Sahoo I'. Lalah Ameer Chand

15 B. L. R. 303 : 24 W. R. 24

136. Equity of re-
demption, attachment of — Payment of projxirtion-
ate share of mortgage-debt. A, the holder of a
decree upon a mortgage-bond, attached in execution
a one-third share of a certain mouzah, one of seven-
teen mouzahs included in the mortgage, and the
equity of redemption in which one-third share had
been purchased by B. Held, that, although as laid
down in Azimut Ali Khan v. Jou-ahir Sing, 13

( 8563 )

DIGEST OF CASES.

( 8564 )

MO-RTQAQB—contd.

8. REDEMPTION— co7i<c?.
(b) Redemption of Portion of Pboperty — contd'
Moo. I. A. 404, B would have been at liberty to
insist that his one-third share should be burthened
with no more than a proportionate amount of the
original mortgage-debt, and might claim to redeem
such share upon payment of that quota, yet, as he
had not shown what that proportion was, nor paid it
into Court, that A under the circumstances was en-
titled to enforce his attachment. Hirdy Narain
V. Attaoollah

I. L. E. 4 Calc. 72 : 2 C. L. B. 580

137.

Contribution-

Suit for redem-ption of share of 'pro-perty sold in
execution of decree for mortgage-debt. M, B, and
N held mouzah D in equal one-third shares, and M
also held a share in mouzah A. On the 3rd January
1863 31 and B mortgaged their shares in mouzah D
to L to secure a loan of certain moneys. On the 16th
March 1870, 31, B, and N mortgaged mouzah D to
B to secure a loan of R600, and on the same day, by
a separate deed, they mortgaged mouzah D, and 31
mortgaged his share in mouzah A to E, to secure a
loan of E 1,600. On the 8th December 1875 L
obtained a decree for the sale of the shares of 31 and
B in mouzah D for the satisfaction of the mortgage-
debt due to her. On the 18th April 1876 R obtained
a decree for the realization of the mortgage-debts due
to him by the sale of mouzah D and i¥'s share in
mouzah A. On the 23rd October 1876 the shares of
31 and B in mouzah D were sold in execution of i's
decree, and were purchased by E. A portion of the
purchase -money was applied to satisfy Z's decree,
and the balance of it was deposited in Court. In-
stead of appiyiiig to the Court to pay him this ba-
lance in execution of his decree dated the 18th April
1876, B attached and obtained payment of such
balance in execution of a decree for money which he
held against 31 and B. On the 20th Jime 1877, B,
in execution of his decree dated the 18th April 1876,
brought to sale A"'s one-third share in mouzah D
and became its purchaser. On the 20th July 1877
B, in execution of a decree for money against 31,
brought to sale his share in mouzah A and became
its purchaser. Held, in a suit by N against B in
which he claimed that the sum due by him under the
two mortgages dated the 16th March 1870, and the
decree dated the Ibth April 1876, might be ascer-
tained, and that, on payment of the amount so
ascertained, the sale of his one-thnd share in mouzah
D might be set aside, and such share declared
redeemed, that the sale of N's share in mouzah
D could not be set aside. Held, also, that, if it were
shown that the sum realized by the sale of his one-
third share in mouzah D exceeded the propor-
tionate share of his liability on the two mortgages,
he was entitled to recover one moiety of such excess
as a contribution from mouzah A. 'As it appeared
that there was such an excess, the Court gave N a
decree for a moiety of such excess, together with
interest on the same from the date of the sale of
A 's share at the rate of 12 per cent, per mensem ;
and further directed that, if such moietv, together

MORTGAGE— confc7.

8. REDEMPTION— conirf.
(6) Redemption of Portion of Property — contd.
with interest, were not paid within a certain fixed
period, N would be at liberty to recover it by the
sale of the share in mouzah A, or so much thereof
as might be necessary to satisfy the debt. Bhagi-
rath v. Naubat Singh . I. L. R. 2 All. 115

138.

Scde of equity

of redemption of two parcels — Second mortgage^ of
six parcels and redemption of one by mortgagor —
Transfer of Property Act, s. 00 — Bedemption by
purchaser of ttiv parcels on payment of proportion-
ate amount of debt decreed. In 1873 B mortgaged
to S seven parcels of land (items 1-7) for R300.
In 1880 31 purchased B's rights in items 1 and 2.
In 1881 B redeemed item 5 on payment of R30 and
executed a second mortgage of the rest to N for
R200. Held, that 31 was entitled to redeem items
1 and 2 on payment of a proportionate amount of
the first mortgage-debt. SubrajMANYan v. Man-
DAYAN . . . I. L. R. 9 Mad. 453

139.

Breaking up

security — 3Iortgagee alloicing mortgagor to pay a
portion of the mortgage debt and releasing part of
the mortgaged property — Transfer of Property Act
{IV of 1SS2), s. 6u. A mortgagee, by allowing his
mortgagor to pay a portion of the mortgage-debt
and releasing a proportionate part of the mort-
gaged property, does not thereby entitle the mort-
gagor or his representative to redeem the rest of the
mortgaged property piecemeal. 3Iarana Ammantm
v. Pendyala Perubotidu, I. L. B. 3 3Iad. 230, and
Suhramanyan v. 3Iaiidayan, I. L. B. 9 3Iad. 453, not
followed. Lachmi Narain v. Mxihamiviad Yusuf
I. L. R. 17 All. 63
140. Subsequent

mortgage of same land — Decree on first mortgage —
Effect of sale in execution of some of mortgaged
land and purchase by subsequent mortgagees subject
to their ou-n mortgage — Subsequent suit by mort-
gagors for redemption of lands other than those sold
— Ajrportio^iment of mortgage-debt. In 1874 plaiut-
ifEs mortgaged to one S seven fields, of which four
were Survey Nos. 22, 23, 40 and 41. In 1876 they
mi rtgaged these same four fields with f ther lauds to
the defendants. In 1877 S obtained a decree upon
his m( rtgage, and in execution sold only Nos. 22, 23,
and 41, which realized sufiicient to satisfy his decree.
These three fields were, on the application of the
defendants, sold subject to their mi rtgage, and they
themselves purchased them at the sale. The plauat-
iffs now sued to redeem the remaining landg
comprised in the mi rtgage of 1876, exclusive of those
which had been sold in execution. Held, that they
were entitled to redeem this part of the mortgaged
property, as the mortgagees had themselves ac-
quired the plaintiffs' (mortgagors') interest in the
other part and so severed their claim under the
mortgage. Held, also, that the plaintiffs were en-
titled to redeem on payment of such portion cf the
mortgage-debt as remained after deducting the
portion cf it to which the lands purchased by

( 8565 )

DIGEST OF CASES.

( 8566 )

MOETGAGE— con/(f.

8. REDEMPTION— confrf.
(6) Redemption op Pobtion of Pkoperty — contd.
defendants were liable. Piejada Ahmadmiya Pir-

MAYA V. ShA IvALIDAS KaNJI

I. li, R. 21 Bom. 544

141. . Hindu laiv—

Widow's estate — Mortgage hy two co-widows —
Sale of equity of redemption in execution of decree
against one widoic — Suit to redeem by other widow
— Decree for rcdem^ittion of moiety on faijment of
moiety of mortgage amount. A mortgage of an-
cestral estate having been made by A and B, two
Hindu co-widows, the equity of redemption of the
said estate was sold in execution of a decree for
money against B only and purchased by the mort-
gagee. Held, that A was entitled to redeem only a
moiety of the estate during the lifetime of B.
Ariyaputei v. Alamelx: . I. L. R. 11 Mad. 304

142.

— Transfer of Pro-

perty Act (IV of 1882), s. 60— Effect of purchase
hy viortgagee of portion of the mortgaged property.
The purchase of a part of the mortgaged property
by a mortgagee, subject to his mortgage, has not
necessarily the effect of fully discharging the mort-
gage, without regard to the value of the property
purchased and the price paid for it, whether such
purchase be made in execution of a simple decree
for money or in execution of a decree obtained by the
mortgagee himself upon a subsequent mortgage,
although it is possible that under some circum-
stances such purchase may have the effect of extin-
guishing the mortgage. Ahmad Wali v. Bakar
Husain, Alt. WeeBy Notes (1883) 91, o\erruled.
Azimut Ali Khan v. Jowahir Sing, 13 Moo. I. A.
404 ; Nilakant Banerji v. Suresh Chandra Mullick,
I. L. R. 12 Calc. 414; Mahtab Singh v. Misree
Lull, 2 Agra 88; Bitthul Nath v. Toolsee Bam,
1 Agra 125 ; Kesree v. Seth Roshun Lai, 2 N. W. 4 ;
Kuray Mai v. Puran Mai, I. L. R. 2 All. 565;
Mahtab Rai v. Sant Lai, I. L. R. 5 All. 276; Sumeta
Kuar v. Bhagicant Singh, All. Weekly Notes (1805)
1 ; Chunna Lnl v. AnariAi Lai, I. L. R. 19 All.
196 ; Khwaja Bakhsh v. Imaman, All. Weeky Notes
{1895) 210 ; Ballam Das v. Amar Raj, I. L. R. 12
All. 537 ; and Bisheshar Singh v. Laik Singh, I. L.
B. 5 All. 257, referred to. Nand Kishoke v. Haei
RajSixgh . . . I. L. R. 20 All. 23

143. Purchase by

third parties of mortgagee's interest in portions of
mortgaged property — Redemption and apportion-
ment of liability of purchasers for the mortgage
charge — Joinder of parties — Mortgage account —
Form of decree. Purchasers of the right, title, and
interest of a mortgagor in certain portions of the
mortgaged property, sold in execution of a prior
decree against the mortgagor, were added as co
defendants in a mortgagee's suit against the mort-
gagor for foreclosure on failure to redeem. As against
these purchasers, the suit was dismissed with
costs, on the groimd that their claims to portions
of the mortgaged property, under titles prior to,
and independent of the mortgagee's title, eould not

M ORTG AGE— con^fi.

8. REDEMPTION— confc?.
(6) Redemption- of Portion- of Property — contd.

be decided therein. A decree was then made against
the mortgagor, and on his subsequent failure to
redeem or to pay the debt, his equity of redemption
was sold and M'as bought by the mortgagee. In a
suit brought by the mortgagee against the repre-
sentatives of ofte of the said purf-hascrs, who
refused to deliver possession of the portion : — Held,
that (a), as this purchaser had disclaimed the right
to redeem the portion, and had alleged a paramount
title, causing the dismissal of the suit as against
him, he and those claiming under him were pre-
cluded from afterwards claiming to redeem ; and
[b) the proportion of mortgage charge for which
he was liable could not be apportioned by the taking
an account as between him and the mortgagee alone,
in the absence of the purchasers of the other por-
tions. Azimut Ali Khan v. Jouahir Singh, 13 Moo.
I. A. 404, referred to. A decree which < rdered
that the defendants, without any account being
taken at all, should retain possession of the por-
tion purchased as above stated, clear of the pro-
portion of mortgage-debt chargeable thereon, • n
payment to the mortgagee of the sum for which
he had bought the equity < f redemption, was held
to be inci rrect, and was acci rdingly reversed.
Nilkant Banerji v. Sxtresh Chandra Mullick
I. L. R. 12 Gale. 414 : L. R. 12 I. A. 171

Right of one of

144.

several joint mortgagors to redeem the whole e-state.-
Parties to a redempAion suit. In the case of joint-
family property, which, though held in certain
shares by the several coparceners, is mortgaged
as a whole and redeemable upon payment of
the entire sum, each and every one of the ruortgagors
has a right to redeem the whole estate, seeking his
contribution from the rest. The rule is the same as
regards any persons, other than the origmal mort-
gagors, who have acquired any interest in the lands
mortgaged by the operation ( f law, or e therwise in
privity of title. '1 he plaintiffs sued to redeem
a sixteen pies takshim of the klioti village of Shii-be
which had been jointly mortgaged by <S, the owner
of one-half share of the takshim, and H, the eldest
of the four sons of P, the owner of the remaining
half share. The plaintiffs were the owners, by pur-
chase at two Court-sales, of the equity of redemption
of two out of the eight pies share belonging to S,
and of one quarter of the eight pies share belong-
ing to P. One of these sales was in execution of a
decree against R, the eldest of the five sons of S,
and the other in execution if a decree against H.
After the institution ( f the suit, the defendants
purchased privately the shares in the equity of
redemptinn belonging to Bala, the fiith sun of S,
and to Saya and Devji, two of the sons of Baba, the
fourth Sun of .S. Under these sales, they claimed to
be OM-ners of a fnur pies share in the takshim.
Pending the appeal in the District Court, the defend-
ants allowed Z,, the grandson if P, to redeem a two
pies share, and L'& bruther, R, to redeem a pie share.
Held, that, as the sixteen pies takshim of the khoti

{ 8567 )

DIGEST OF CASES.

( 8568 )

MOBTGAGE— con?i.

8. REDEMPTION— <;oM<(?.
(b) Redeimption of Portion of Property — contd.
village, though held in certain shares by the original
mortgagors, was undivided family property, which
was mortgaged as a whole and for an entire sum, the
plaintiffs, as owners by purchase of a part of the
equity of redempti m, had a right to redeem the
whole of the sixteen pies takshim ; and this right
could not be affected by the conduct of the defend-
ants post litem motam, either by their purchase of a
share in the equity of redempti in pending the suit, or
by the partial redemption allowed by them pending
the appeal. Held, also, that the defendants had no
power to permit partial redemption, as before parti-
tion none of the co-sharers would redeem any parti-
cular share. Naro Hari Bhave ?'. Vith.\lbhat

I. L. R. 10 Bom. 648

Sakharam Narayan v. Gopal Lakshuman

I, li. R. 10 Bom. 656 note

Alikhan Datjdkhan v. Mahomadkhan Sham
SHERKHAN Desmtjkh I. L. R. 10 Bom. 658 note

145.

Sale

mort-

gagor of jyart of mortgaged property pending re-
demption suit — Sak by mortgagor of rest of mort-
gaged property after decree for redemption — Ap-
plication by purclmsers for execution of decree —
Subsequent suit for redemption by one purchaser
— Sale pendente lite. One M sued the defendant R
for partition. The defendant pleaded a prior parti-
tion, and alleged that the property which M now
sued to recover had been mortgaged by M to him
(the defendant). Pending the suit, M sold to the
plaintiff a portion of the property claimed from the
defendant. Subsequently to this sale, a decree was
passed in the suit, by which it was declared that the
mortgage alleged by the defendant had been proved
and that M should redeem within six months from
the date of the decree. Subsequently to this decree,
— viz., on 25th November 1879, — M sold the remain-
der of the mortgaged property to one H S. The two
purchasers [viz., the plaintiff and H S) then made
a joint application for execution of the decree fo.- re-
demption. The Subordinate Judge held, as to the
plaintiff, that the plaintiff having purchased pend-
ente lite, and having becime il/'s assignee prior to
the decree, was not entitled to come in under s. 232
of the Civil Procedure Code (Act X of 1877) to get
the decree enforced ; and on 6th March 1 880 an order
was made that H 8 should redeem the whole pro-
perty on payment of R 100 and costs, i^ *S subse-
quently sold his interest to the mortgagee, R. In
1880 the plaintiff brought the present suit for
redemption against M (the mortgagor) and the de-
fendant R (the m'irtgagee), alleging (inter alia)
that M, having sold the property, had not sought to
execute the former decree for redemption. The
defendant R in his written statement alleged that
the sale by M to the plaintiff was fraudulent ; that
the plaintiff as purchaser from M had not applied to
be made a party to the former suit ; that M having
failed to redeem as ordered by the said decree within
the period specified, neither he nor the plaintiff was

MORTGAGE— com<(^.

8. REDEMPTION— confr?.
(6) Redemption of Portion of Property — contd.
now entitled to sue. Held, that the plaintiff's suit
was unsustainable. By the sale t ) the plaintiff the
rights of M came to the plaintiff subject to the
result of the suit then pending in which he did not
choose to get himself made a co-plaintiff. AMien the
decree was passed, it was only through a right
derived from M that the plaintiff could have a locus
standi in the further proceedings, and he applied for
execution as assignee, and therefore as representative
of M under s. 244 of the Code of Civil Procedure
(X of 1877). As such representative, he might have
appealed, but did not, against the order of the 6th
i\Iarch 1880, passed on the application made by him
jointly with H S. He had this right of appeal as
representative of 21, but he could not bring a fresh
suit. If he was not a representative of 31, then he
was a stranger to the proceedings under the decree ;
and as J/ took no steps to fulfil the decree, the right
ti redeem was foreclosed in six months from the
date of the decree, — i.e., in May 1881. The plaint-
iff could not, by an\- step, prevent the right of
the defendant as mortgagee against M from grow-
inw and perfecting itself " during the six months
allowed for redemption. Ramchaxdra Kolatkar
V. Mahadaji Kolatkar . I. L. R. 9 Bom. 141

146. Right to redeem

share coming to person by inheritance. The plaint-
iff recognized the validity or a mortgage for a term
of twenty years of her deceased father's estate
made in 1854 by her two brothers, nor did she dis-
pute the sale in 1863, after the death of the brothers,
of the estate to the mortgagees by M, her mother,
describing herself as sole owner, as a transfer of J/'s
rights. She claimed to have a right to redeem from
the mortgage in 1854, in due course of time, the share
in the estate which devolved upon her by right of
inheritance from her father and brothers, the sale-
deed of 1863 notwithstanding. The purchase-
money under the sale-deed represented personal
debts of M and N, one of the brothers. The
plaintiff did not claim as an heir of M, whose death
was not known for certain. M did not profess in the
sale-deed to be acting for her daughter either as
guardian or as one of iV's heirs managing for them
all. The plaintiff was apparently not a minor at
the time, and M was not an heir of N, being his
step-mother. Under Mahomedan law, she could
not have disposed of her daughter's property as her
guardian, and not being one of N's heirs she could
not deal with his estate on behalf of his real heirs.
At the time of sale half the mortgage term had
not expired, the mortgage-debt was not claimable
at the time, and the sale with a view to its liquida-
tion was unnecessary. Under these circumstances,
the plaintiff's claim was decreed. Imaman v.
Lalta Buksh . . . . 7 N. W. 343

147. Redemption of a

sJuire of mortgaged property upon payment of propor-
tionate debt — Parties — Transfer of Property Act (IV
of 1882), s. 60 — lnt(rest. \Miere a suit was brought
upon a mortgage against the original mortgagor.

( 8569 )

DIGEST OF CASES.

{ 8570 )

MORTGAGE— con<<?.

8. REDEMPTION— con<<?.

(6) Redemption of Portion of Property — concld.
and upon the latter's death all his heirs were
not brought on the record and in execution of
the decree thus obtained the mortgaged property
was sold : — Held, that, in a suit by the heirs not
on the record, they were entitled to redeem their
share of the mortgaged property upon payment
of a proportionate share of the mortgage debt.
Stjrya Bibi v. Monindra Nath Roy

4 C. W. K". 507

148. Usufructuary

mortgage followed by lease to mortgagor — Suit for re-
demption— Arrears of rent sought to he included in the
mortgage debt — Diminution of security — Acquiescence
of mortgagee in loss of part of the security. The day
after the execution of a usufructuary mortgage, the
mortgagor entered into an agreement with the mort-
gagees to rent the mortgaged premises from them.
The kabuliat executed in pursuance of this agree-
ment provided that the rent, a fixed annual pay-
ment, should be charged on the property leased,
but the kabuliat was neither executed nor register-
ed on the same day as the mortgage, nor were the
terms of the two instruments coincident. Held,
that the two transactions must be treated as sep-
arate, and the mortgagor could not be compelled
as a condition precedent to redemption i f the
mortgage, t) pay off the charge created by the
kabuliat. Taj jo Bibi v. Bhagivan Prasad, I. L. B,
16 All. 295, referred to. At the time < f the mort-
gage one of the mortgaged villages was the subject
of a suit for pre-emption, which was ultimately
successful and the village passed out of the hands
of mortgagees. The mortgagees, however, made
no effort to obtain any equivalent from the mort-
gagor, but remained in pi ssession ( f the rest of the
mortgaged property for S(5me years, apparently
satisfied with the security. Held, that the mort-
gagees were not under the circumstances entitled
to claim anything from the mortgagor on redemp-
tion on account of the rents and profits of the village
of which they had been so deprived. Partab
Bahadur Singh v. Gajadhar Bakhsh Singh, L B. 29
I. A. US; s.c. I. L. B. 24 All. 5:?i, referred to.
Khuda Bakhsh I). Alim-un-stlssa (1905)

I. L. E. 27 All. 313

149.

Bedemption, right

of— Transfer of Property Act (IV of 1SS2), s. 60—
Mortgage — Effect of purchase by mortgagees of part
of the mortgaged property. When the integrity of a
mortgage has been broken up upun the purchase
by the mortgagees of the equity of redemption in a
portion of the mortgaged property, the right of re-
demption of each of the several mortgagors is con-
fined to his own interest in the mortgaged property ;
he cannot redeem the remainder of the mortgaged
property against the wishes of the mortgagees.
Nau-ab Azimut Ali Khan v. Jou-ahnr Singh, 13 Moo.
l. A. 404 ; Kuray Mai v. Puran Mai, I. L. B. 2 All.
665, and Girish Chunder Dey v. Juramoni De, 5 C.
FT. iV. 53, followed. Munshi r. Daulat (1906)

I. L. K. 29 All. 262

I MORTGAGE— conirf.

8. REDEMPTION— co/iirf.

I (c) Redemption otherwise than on Expiry of
Term.

150. Redemption after expiry

of time — Mortgage becoming absolute on default of
I redemption — Security for repayment of loan. \\'here
an instrument of mortgage, though in terms, it
! transfers an estate on failure to repay the mortgage-
i money on a fixed day, yet appears clearly to have
1 been entered into by the parties for securing repay-
ment of a loan, the mortgagor, making the security
' subservient for the purpose for which it was created,
may in equity and good conscience redeem the pro-
i perty by paying off the principal debt and interest,
\ though the stipulated time for payment has been
allowed to pass by. Ramji bin Tukaram v. Chinto
Sakharam 1 Bom. 199

Muhammad valad Abdul Mul.na v. Ibrahim
valad Hasan ... 3 Bom. A C. 160

151.-

Conditional sale —

Dhri>iabandhtika. A dhristabandhaka, or Hindu
instrument by which visible property is mortgaged,
which names a time for payment of the money
borrowed, and stipulates that on default the mort-
gagee shall be put into exclusive possession and
enjoyment cf the property, will not be treated
strictly as a conditional sale, even though the instru-
ment expressly provides that on default the tran-
saction shall be deemed an outright sale ; and in a
suit by the mortgagee for possession, the Court,
in decreeing the right thereto, will give tlie mort-
gagor a day for redeeming. Venkata Redox v.
Parvati Ammal .... 1 Mad. 460

152. Mortgage for

fixed term. B mortgaged certain land to .-1 in 1844.
stipulating that, if he (B) failed to pay a moiety of
the mortgage-money within three years or wholly
redeem within five years from the date < i the mort-
gage, the property mortgaged sh' uld be considered
as sold to A. The property remained in the posses-
sion of B till 1847, at the end of which he gave it
into the possession of A, B then believing that he
had thereby lost all right to the property. Subse-
quently to 1847, the property changed hands.
The absolute right was first suld in 1855, and then
on two occasiuiis in 1862. At this time B did not
raise any objection to the property being sold,
although he was fully aware of the fact. B had
also admitted, in a suit brought against him in
1850 by A, that he had si Id the land to A. In a
suit brought by B against A in 1S67 to redeem the
mortgaged property: — Held (fi'llowing the decision
in Bamii bin Tukaram v. Chinto Sakharam, 1
Bom. 199), that.B was entitled to redeem the pro-
Ijerty. Ramshet Bachashet v. Pandu.vrinath

8 Bom. A. C. 236

See Krishnaji alias Babaji Keshav v. Ravji
Sadashiv 9 Bom 79

153. Gahan lahan

clause. Since the deci.sion of the case of Bamji bin
Tukaram v. Chinto Sakharam, 1 Bom. 199, it has

( 8571 )

DIGEST OF CASES.

( 8572

MORTGAGE— cow<(?.

8. REDEMPTION— co??<(Z.

OF Teem — contd.
been the practice of the High Court on its appellate
side and of the inferior Courts in the Bombay Presi-
dency t) treat " gahan lahan " mortgages (mort-
gages containing a proviso that, if not redeemed
within a certain fixed time, they will be considered
as converted int) absolute sales) as redeemable, not-
withstanding that such fixed time has expired.
Such practice has proved beneficial, and should be
adhered t i. Ramji bin Tuharam v. Chinto Sakha-
ram, 1 Bom. 199, and the cases decided in accord-
ance with it, referred t > and followed. Shankar-

BHAI GtJLABBHAI V. ELiSSIBHAl VlTHALBHAI

9 Bom. 69

154. Mortgage tvith

clause of conditional sale. The plaintili sought to
redeem two mortgages executed by his father in 1839
in favour of the defendant. The mortgages con-
tained gahan lahan clauses, in virtue whereof the
defendant denied the plaintiff's right to redeem,
and contended that the lands mortgaged had become
his absolute property, which contention the lower
Cnirts disallowed, holdmg the lands redeemable.
Held, that the lower Courts were right in recognising
the plaintiff's right to redeem as stUl in existence,
the rule laid down in the case of Ramji v. Chinto,
1 Bom. 1'J9, being in force in the Presidency of
Bombay with regard to mortgages containing clauses
of conditional sale. Rajichandea Baba Sathe v.
Janaedhas Apaji . . I. L. R. 14 Bom. 19

155.

Mortgage with

lahan — Merger

—Estop-

clause of conditional sale — Gahan
— Admissions in depositions or
pel. The land in dispute was mortgaged with pos
session to the father of the defendant by the father of
the plauatifEs in 1854, on condition that the same was
to be considered as sold to the mortgagee if fi240
were not paid t > the mortgagee within five years
from the date of the mortgage. No such payment,
however, was made. In 1860 the plaintiffs' father
executed tj defendant's father another deed re-
specting other land, which deed mentioned the land
in dispute as being in the possession and enjoy-
ment of the same mortgagee as purchaser thereof.
In 1866 the defendant-mortgagee brought a suit on
the mortgage of 1854, as also on other mortgages,
and claimed R721 as due upon the mortgage after
deducting R240 as the price of the land mortgaged.
The mortgagor objected to the claim, but his ob-
jection was overruled, and the account was taken,
allowing R240 as the consideration for the sale of
the land unler the conditional sale clause, and the
claim was decree I accordingly. In 1884 the present
suit was brought to redeem the mortgage. The
defen lant contended that under the conditional
Bale clause the mortgage did not subsist, and that
the present suit was barred by the suit of 1866.
The lower Courts held the plaintiff's claim to be too
stale for admission, and the mortgage of 1854 to be
merged in the decree of 1866, and rejected the claim.
On appeal by the plaintiff to the High ComU— Held,

MORTGAGE— conW.

8. REDEMPTION— cowid.

reversing the decree of the lower Courts, that the
j mortgage in question still subsisted, regard being
I had to the rule in Ramji v. Chinto, 1 Bom. 199,
\ which is still in force in the Presidency of Bombay
I with regard to mortgages containing clauses of con-
j ditional sale, whether executed befo're or after 1864.
I Held, also, that the mortgage had not merged in the
I decrees of 1866, which was in a suit to recover a
j different mortgage-debt secured by different proper-
j ty. It was contended that the understanding of the
I parties up to 1866 was that the mortgage had been
[ converted into a sale, and that the property had

passed to the defendant by purchase, and therefore

the plaintiffs were prevented from redeeming it.

Held, that such understanding (being similar to an
1 admission in a deposition or pleading) did not
! operate as an estoppel or prevent the mortgagors

(plaintiffs) from redeeming their property. Abdul

Rahim v. Madhavrav Apaji

. L. R. 14 Bom 78

156. Agreement in a

subsequent deed to postpone redemption until pay-
ment of another debt. Aii agreement contained in a
deed executed for a fresh consideration subsequent
to a mortgage-deed to postpone redemption of the
mortgage until the payment of another debt which
has not been made a charge on the land is valid.
Ketshnaji v. Maheshvar Lakshjian Gondha-
lekar . . . I. L. R. 20 Bom. 346

But see Abdul Hak v. Gulam Jilani-

I. L. R. 20 Bom. 677

and Sari v. Motiraji Mahadu.

I. L. R. 22 Bom. 375

157

A mortgagor stipulated by

'Conditional sale,

instrument in writ-

ing that if he failed to repay the sum lent on mort-
gage within three years, the property mortgaged waa
to be held an absolute sale. Held, that the mort-
gagor was entitled to redeem, although the amount
lent had not been repaid within three years. Nal-
LANA Gaundan V. Palani Gaundan . 2 Mad. 420

158.

Uszifructuary

mortgage. The plaintiff executed an usufructuary
mortgage of certain land for a term of twenty-two
years to the first defendant, for the considerations
stated in a written instrument of mortgage, dated
the 21st of January 1863. The mortgage instrument
contained a stipulation that possession should be
given to the plaintiff upon his paying the principal
and interest due to the first defendant within two
months from the date of the execution. Held, that
the plaintiff was entitled to redeem, although the
amount of principal and interest had not been paid
or tendered within two months. Dorappa v.
KuNDiKURi Mallikaejunudu . 3 Mad. 363
159. English law — Construction.

The decisions of the Sudder Court at Madras
carried the doctrine of relief after the time named

( 8573 )

DIGEST OF CASES.

( 8574 )

MOETG A QB^:ontd.

8. REDEMPTION— conicZ.

OF Term — conid.
in the conveyance so far as to say that wherever
the security for money is an object of the
transaction, no sale can become absolute. The
High Court have followed the English rule, and
have held the question one of construction — a'lmit-
ting, liowever, for the purpose of the construction
other documents and oral evidence. Lakshmi
Chelliah Gartj v. Srikrishna Bhupati Devu
Mahaeaj Garit .... 7 Mad. 6

160. Reasonable time— Potter of

sale by mortgagor — Suit to remove attachment. Claim
by a mortgagee t > remove an attachment, placed
by a judgment-creditor of the mortgagor, on the
ground that the entire ownership of the property
had passed to him at the date of attachment.
The mortgagee had never had possession of the
mortgaged property ; and by the stipulations of
the deed the mortgagor had a power of sale
after the expiration of the time fixed for the pay-
ment of the debt, and it was only on the failure
to exercise this power that the proprietary title
would pass to the mortgagee. Held, that, under a
condition of this character, a reasonable time must
be allowed fur the exercise of the power of sale, and
that the fact that no sale had taken place within
an interval of twenty-three daj's from the date fixed
for payment could not equitably be held t;. divest
the mortgagor of the equity of redemption ; that
consequently at the time of attachment the defend-
ant was only a mortgagee, and the suit to remove the
attachment could not be maintained. Koner
Manohar Mahajan Ajibekab v. Naro Hari Das-
putre 1 Bom. 167

161. Zur-i-peshgi lease — Redemp-
tion before expiry of time — Suit for redemption of
zur-i-peshgi mortgage. A mortgagor who has
granted a zur-i-peshgi lease can sue to recover pos-
session of his lands before the expiry of the term
fixed by tlie lease, on the ground that the mort-
gage-debt has been satisfied by the mortgagee's
receipts while in possession. Punjum Singh v.
Ajieena Khatoom ... 6 "W. E. 6

162. " Transfer of

Property Act, ss. 60, 62 [a) — Mortgage icith pos-
session— Time for redemption of mortgage — Provi-
sion for discharge of debt out of incotne. In 1885
the plaintifis mortgaged certain land to the defend-
ants, and placed them in possessim under a mort-
gage-deed, which provided that the pr.)fits of the
land should be taken towards the discharge of the
mortgage-debt, and that, when it was so discharged,
possessi jn should be surrendered t') the mortgagor.
In a suit in which the plaintiffs asked for an account
and for a decree for redemption on payment by them
of the balance that might be f ■ mnd due un the mort-
gage, it appeared, on accounts being taken of the
proceeds of the land, that the principal and interest
had not been discharged thereby. Held, that the
right to redeem had not accrued to the plaintiffs, and

mOIlTQAG:E—contd.

8. REDEMPTION— confcZ.

that the suit should be dismissed. Tirugnana
Sambandha Pandara Sannadhi v. NaIXATA3IBI

I. L. R. 16 Mad. 486

163.

Hindu and English law —

The same principle exists both in tho English
and the Hindu law that the right of the mort-
gagor to redeem does not, in the absence of any
circumstances or language indicating a contrary in-
tention, arise any sooner than the right of the mort-
gagee to foreclose, and therefore a suit for redemp-
tion of a Hindu mortgage cannot be brought before
the time fixed by the mortgage for the payment
of the mortgage-money. Sakhaeam Nakasimha
Sardesai v. Vitht; Lakha Gouda

1 Ind. Jur. N. S. 250 : 2 Bom. 237
2nd Ed. 225

164. Mortgage for fixed period

—Act XXVIII of 1S55. Held, that a mortgage
effected for a fixed period subsequent to Act
XXVIII of 1855 coming into operation, is not
redeemable until the period for which it was effected
has expired, and that under the circumstances the
mortgagor's remedy was to sue for the balance of the
mortgage-loan which had not been paid to them.
MuN Peary v. Shiva Deen . . 1 Agra 91

165. ^ Cause of action

— Mortgage for fixed term. The general principle
as to redemption and foreclosure is that, in the
absence of any stipulation, express or implied, to the
contrary, the right to redeem and the right to fore-
close are co-extensive. A mortgage-deed, dated the
30th April 1870, stipulated that the mortgagor
would pay the debt, with interest, within ten years
and redeem the mortgaged property. In a siiit
instituted on the 30th July 1877 for the redemption
of the property the mortgagee contended that the
time had not expired. Held, that the suit was un-
sustainable, because prematurely instituted, the
mere use of the word " within " not being a sufS-
cient indication of the intention of the parties that
the mortgagor might redeem in a less period than
ten years. Vadju v. Vadju . I. L. R. 5 Bom. 22

166. Transfer of Pro-

perty Act {IV of 1SS2), ss. ^ 60, 62— Mortgage
containing covenant to repay " within " o given
time — Mortgagee's right to foreclose. Certain
premises were mortgaged with possession in 1896,
the mortgagor, in the instrument of mortgage,
Covenanting to repay the mortgage- monej' " within
20th of April 1904." In 1898 the mortgagor sold
the mortgaged premises, and called upon the mort-
gagee to receive the principal and interest due and
to deliver up possession. On the mortgagee refus-
ing on the ground that the mortgage was n -t re-
deemable till 1904 : — Held, that the mortgagor was
entitled to redeem. A stipulation for the postpone-
ment of payment of mortgage- money is prima facie
intended for the benefit of the mortgagor ; the
parties to an instrument of mortgage may, how-

( 8575 )

DIGEST OF CASES.

( 8576

MORTGAGE -con^i.

8. REDEMPTION— cowfei.

Term — contd.
ever, by the language of their contract, show their in-
tention that redemption may take place only at the
end of a given term. The covenant as worded, so
far from showing an intention to preclude the
mortgagor from redeeming, reserved the liberty to
redeem at pleasure. Vadju v. Vadju, I. L. E. 5 Bom.
22, and Tirugnana Sambandha Pandara Sann.adhi v.
Nallatambi, I. L. E. 16 Mad. 4S6, considered.
Rose Ammal v. Rajarathnam Ammal

I. L. K. 23 Mad. 33

167.

Mortgage for

fixed term. A mortgage-deed, which was executed
in March 1858, provided for the redemption of the
mortgaged property after the expiration of fifteen
years from date. In a suit brought in 1867 to re-
cover part of this property, the Appellate Court held
the plaintiff entitled to recover, because on the 29th
November 1873, when that Court passed its decision,
the time fixed for redemption in the mortgage-deed
had already expired. Held, on special appeal, in
reversal of the decree of the lower Court, that in
1867, when the suit was brought, the right even
to redeem the mortgaged property as a whole had
not accrued, and that therefore the action was pre-
mature. LiLA MoRJi V. Vasudev Moreshvar
Ganptjle 11 Bom. 283

168. Mortgage for

fixed term. Where money was lent on mortgage
without a stipulated rate of interest, and it was
mutually agreed that the mortgagee was to retain
possession for a given period precisely calculated,
the stipulation was held to involve a condition that
the property was not to be taken out of the hands
of the mortgagee before the expuation of that time.
Sreemunt Dutt v. Krishnanath Roy

25 W. R. 10

169.

A mortgage-

deed, dated the 15th March 1883, stipulated that the
mortgagor would " pay the interest every year, and
the principal in ten years ;" that " the principal shall
be paid at the promised time, and the interest every
year," and that upon failure by the mortgagor to
pay the principal and interest " at the stipulated
period," the mortgagee should be at liberty to
realize the debt from the mortgaged property, and
from the other property and against the person of
the mortgagor. The mortgagor instituted a suit for
redemption on the 15th July 1884. Held, upon a
construction of the mortgage-deed, that the advance
by the mortgagee to the mortgagor was for a period
of ten years certain ; that the case was essentially
one in which, looking to the merits of the matter be-
tween the parties, their obligations were mutual and
reciprocal, and there was nothing in the terms of the
deed to take it out of the ordinary rules applicable
to documents of the kind ; and that, while on the one
hand the mortgagee could not enforce his rights
during the period of ten years, on the other hand the
mortgagor was not entitled, before that period had

MORTGAGE— co«<(i.

8. REDEMPTION— con<d.

OF Term — contd.
expired, to redeem the property. Vadju v. VadjUt
I. L. E. 5 Bom. 22, referred to. Raghubar Dayal
V. BtTDHXj Lal . . . I. L. R. 8 All. 95

170.

Usufructuary mortgage-

Mortgagor entitled to redeem before expiration of
term unless mortgagee can show that the terms
binds mortgagor. No such general rule of law
exists in India as would preclude a mortgagor from
redeeming a mortgage before the expiry of the term
for which the mortgage was intended to be
made unless the mortgagee succeeds in showing that
by reason of the terms of the mortgage itself, the
mortgagor is precluded from paying ofE the debt
due by him to the mortgagee. WTiere parties agree
that possession of any property shall be transferred
to a mortgagee by way of security and repay-
ment of the loan for a certain term, it may be infer-
red that they intended that redemption should be
postponed until the end of the term, though the
creation of a term is by no means conclusive on the
point. The term fixed for payment of a debt should
be presumed to be a protection only for the debtor
till a contrary intention is shown. Bhagwat
Das v. Parshad Sing . I. L. R. 10 All. 602

171. ^ Usufructuary

mortgage. Plaintiii borrowed a sum of money for
defendant, and executed what he called a " usu-
fructuary mortgage," taking from defendant a lease
of nine years, under which the lessee, after paying
the Government revenue and a certain rent (claim-
ing no abatement), was to retain the rest of the
jumnia- as interest and principal of the loan until the
term of the lease expired, when the balance was to
be repaid in a lump sum, the lessor not being at
liberty to alienate the property until the debt was
paid. The present suit was brought to redeem the
property by payment of the principal and interest
due, although the term of the lease had not expired.
Held, that the document leasing the property waa
partly " ticca " and partly " zur-i-peshgi," and
the plaintiii' was not entitled to enter into possession
before the expiry of the term of the lease, nor could
he then enter even if the transaction were viewed
as a zur-i-peshgi. Lotf Aly v. Gujraj Thakoor
11 W. R. 408

172.

mortgage-

Usufructuary

-Suit for redemption on deposit of

balance due. A executed an ikrar by way of mort-
gage, whereby it was stipulated that B, the mort-
gagee, was to remain in possession of the mortgaged
premises for a period of eight years ; that the
amount due was to be paid oti from the usufruct j
and that, if at the expiry of that period any sum
should remain due under the ikrar, A was to pay the
same. In a suit for redemption brought before the
expiry of the period mentioned in the ikrar on de-
posit of the amount due thereunder : — Held, that
the suit would not lie. Chandra Kumar Banerjeb
V. IswTJR Chandra Newgi

6 B. L. R. 582 : 14 W. R. 455

( 8577 )

DIGEST OF CASES.

{ 8578 )

MORTGAGE— fowfj.

8. REDEMPTION— cow<c/.

OF Term — contd.

But see Dixdoyal Shah v. Gaxesh M.ajiatux

6 B. L. R. 56 note : 12 W. R 528 note

which, hoMever, was decided on the supposition

that the mortgage was executed previously to Act

XXVIII of 1855. SrKjAX Chowdhry v. Imam-

bandi Begum . . . 6 B. L. R. 566 note

12 W. R. 527

173. Mortgage for a term — In-
tention of jxtrties. When the contmuance of the
enjoyment of property mortgaged fi,r a prescribed
period forms a material part of the contract, the
mortgagee canni t be deprived of his right to
enjoyment on the mere ground that the contract is
one < f mortgage. The creation of a term is not
conclusive evidence that redemption should not take
place before the end of the term. But where there
was no agreement for payment of interest at an
annual rate, but a lump sum equal t > the principal
was to be accepted as interest for the term, and a
small balance of rent was t > be paid at the end of the
term when the land was returned, and, taking the
net annual usufruct at a fixed sum, a term of years
was created, during which the debt and interest
were t j be liquidated by that usufruct, the risk of
seasons and payment ( f quit-rent falling on the
mortgagee : — Held, that the basis of the contract
was the enjoyment of the property by the mortgagee
for the .term fixed. Setrucherla E-amabhadea
Rajtj Bahadur v. Vairicherla Suriaxarayana
Raju Bahadur . . . I. L. R. 2 Mad. 314

174. Dekkhan Agriculturists'

Relief Act (XVII ot 1879). The rule of law
that the right to redeem is co-extensive with the
right to foreclosure, and is consequently postp. ned
until the time fixed for the payment of the mortgage
debt, dees not apply to cases falling under the Dek-
klian Agriculturists' Relief Act. Baba jt v. Vithu

I. L. R. 6 Bom. 734

175.

Dehhhan Agri-

{XVII of 1S:9), ss. 15

culturists' Relief Act
(6) and 20 — Instalment decree. Mortgagee in pos-
session under the decree for a specified time —
Right to redeem before the specified time. Wheve
under a decree passed in a redemption suit, brought
under the provisions of the Dekkhan Agriculturists'
Relief Act (XVII of 1879), a mortgagee is conti-
nued in possession of the mortgaged property for a
definite time, he is entitled to retain possession until
the expiration of the specified period, and is n<.t
liable to be redeemed before then at the wish c f the
mortgagor. Ramchaisdra Raghunath Kulkarni
V. KoKDAJi . . . I. L. R. 22 Bom. 221

176. Question of title — Su't for

redemption. In a suit for redemption the mort-
gagee cannot dispute the mortgagor's title to the
land comprised in the mortgage, on the ground
that a claim to it is asserted by ether proprietors.
Mahomed Abdool Ruzzak v. Sadik Ali

3 Agra 142

VOL. III.

MORTG AGE— cc«?f/.

8. REDEMPTIOX— co«W.

111. Redemption after expiry

of time — Period for rednnption — Enlargement of
time — Order refming enlargement — Appeal — Civil
Procedure Code (XIV of 1SS2), s. 2l~ — Usufructuary
mortgage— Foreclos^ire — Transfer of Property Act
(IV of 1SS2), ss. 92 and 93. In a suit for redemp-
tion of a usufructuary mortgage, the plaintiff, on
26th June, 1899, obtained a decree allowing six
months for redemption. On the 14th November,

1899, the Appellate Court confirmed the decree, but
did U' t enlarge the time fixed for redemption, which
expired on the 26th December, 1899. On the 21st
March, 1900, the plaintiff applied for an extension
if the time for redemption, and on the oth April

1900, he applied for execution ( f the decree. The
lower Court rejected both applications, holding that
the time allowed by the decree having expired, the
plaintiff had lost his right to redeem, and on that
ground it also refused execution. On appeal by the
plaintiff, the Judge reversed both orders, remanding
the application for extension of time and granting
the application for execution, on the ground that
the six months for redemption should be computed
from the date of the appellate decree. The de-
fendant appealed to the High Court against both
orders. Held, that, as the plaintiff had ni it appealed
agamst the order remanding the application for
enlargement of the time for redemption, the High
Ctturt could not reverse that order and enlarge the
time, but that the application for execution of the
decree might be treated as an application for exten-
sion, and the order of the District Court might be
upheld as one which extended the time by allowing
execution. The order of the District Judge allow-
ing execution was therefore confirmed, and the lower
Court was directed to treat it as an order enlarging
the time and allowing execution. An application
for enlarging the time granted by a decree for re-
demption may be made after the prescribed time
has expired. An order refusing to enlarge the time
prescribed in a decree for redemption is api)ealable
under s. 244 of the Civil Procedure Code. In cases
of usufructuary mortgage, decrees for foreclosure
sh. uld not be made. See ss. 92 and 93 of the
Transfer of Property Act (IV of 1882). Rango
V. Bhomshetti (1901) . I. L. R. 26 Bom. 121

178.

Death of mort-

gagee— Notice by executors of mortgagee to mortgagor
to redeem tcithin three months — Sale of mortgaged
property by mortgagor in order to pay off mort-
gage debt — Xo probate obtained by executors, and
sale, therefore, not completed — Mortgage debt net
p)aid within period of notice — Xegligence of exe-
cutors— Interest on mortgage ceased to run on
expiration of notice to redeem. In 1898 the p.'aint-
iff mortgaged certain property t > one Shapurji
Sukhiafor H 30,000 with interest at 7i per cent, per
an7ium, the debt t > be repaj-able in one year.
Shapurji died in 1901, and the defendants were the
executors of his vrHl, which had been lodged for safe

12 R

{ 8579 )

DIGEST OF CASES.

( 8580

MOBTGAGB— <-on/d.

8. REDEMPTION— conif?.

OF Term — contd.
custody witli the Registrar of Assurances. On 8th
January, 1902, the defendants requested the
Registrar to lodge the will in the High Court in
order that they might obtain probate oi it. It was
d ily lodged on the 24t'i Janaary 1902, and was sent
t ) the Translator's Office for translation. On the
3r 1 February, 1902, the defendants gave n itice to
plaintiff to pay them the debt due on the mortgage
intimating at the same time that they had taken
steps to obtain probate. The plaintiff, in order t)
pay off the debt, immediately (12th February, 1902)
agreed t) sell the property t > Haji Osman & C >. for
R35,000, the sale to be completed by the 14th April
1902. The plaintiff informed the defendants of the
sale, and requested inspection of the deeds relating
t5 the property. The sale, however, was not com-
pleted by the 14th April, 1902, in consequence (as
the plaintiff alleged) of defendants n ,t having
obtained probate, and the purchasers (Haji Osman
& Co.) gave notice to the plaintiff that the purchase
money was lying idle and that they would charge
interest thereon. The plaintiff informed the de-
fendant of this on the 23rd April, 1902. It appear-
ed that the will was obtained from the Translator's
Office on the 9th April, 1902. The plaintiff filed
this suit for redemption on the 4th June, 1902.
The defendants applied f ir probate of the will on
the 17th June, 1902. Held, that the plaintiff
(mortgagor) was n)t liable to pay interest on the
mortgage after the 3rd May, 1902, i.e., after the
expiration of the three months mentioned in the
defendant's notice of 3rd February, 1902. After
the receipt of that notice the plaintiffs were at
liberty to pay the amount demanded to the legal
representatives of the mortgagee, and the legal
representatives were bound to be ready and able
to execute a good and valid leconveyance to tb.e
plaintiff of the mortgaged property. If the de-
fendants had used due diligence after obtaining
the translation of the will on the 9th April, the}-
could have obtained probate and been in a position
to reconvey. Pandxjrang Ivrishnaji v. Dada-
BHOY NowROJi (1902) . I. L. R. 26 Bom. 643

179.

Kedemption before expiry

of tevva.—Suit for redemption — Conditions post-
poning redemption whilst allowing the mortgagee
under certain circumstances to realize the mortgage
money before dm date. The right of redemption
and the right of fjreclosure or sale are not
always and under all circumstances co-extensive.
Hence where in a mortgage with possession for
a term of 15 years there was a covenant on the
part of the m jrtgagor to the effect that, if the
property " be found to have been mortgaged or
hypothecated or transferred to any>)ne, or if there
should arise any cause which might be c )nsidered
likely to affect the total or partial loss of the
prmcipal mortgage money and interest, the mort-
.gagee shall have power to realize the entire mort-
gage money, with interest thereon at the rate of

MORTGAGE— cowW.

8. REDEMPTION— <;o«/(Z.

R3-2-0 per cent, per mensem ": —Held, that this
covenant, properly construed, was not an unreason-
able stipulation and did not give the mortgagor any
right to claim redempti m before the expiry of the
term of the mortgage. Syed Abdul Hak v. Golam
Jilani, I. L. R. 20 Bom. 677, and Sari v. Motiram,
I. L. R. 22 Bom. 375, referred to. Bhawani >■.
Sheodihal (1904) . . I. L. R. 26 All. 479

180, Mortgage by mortgagee

— Transfer of Property Act {IV o' 1SS2), ss. 62, 63—
Limitation Act (XV of 1S77), Sch. II, Art. 134—
Mortgage by mortgagee purporting to be of a proprrie-
tary interest i.i the mortgaged property — Foreclosure.
Under ordinary circumstances a mortgagor cannot,
before the time limited for payment to the mort-
gagee expires, take pr iceedings to redeem the mort-
gage. Brown v. Cole, Ji Sim. 127 ; Vadju v.
Vadju, I. L. R. 5 Bom. 22 ; Raghubar Dayal v.
Budhu Lai, I. L. R. 8 All. 95; and De BraamY.
Ford, [1900] 1 Ch. 142, referred to. The widow of
a usufructuary mortgagee in possession made a
gift ( )f the mortgaged property to A H. The donee
mortgaged part of the property, the subject of this
gift to P N, purporting to mortgage the full pro-
prietary interest in the property. P N took pro-
ceedings for foreclosure against A H, as absolute
owner and obtained foreclosure and possession of
the pr .perty. Held, on the finding that P N
acted bond fide and had no rea on to suppose that
A H was not, as he represented himself to be, the
full owner uf the property mortgaged, that P N
was entitled, as against the representative of the
original mortgagor, to the protection afforded by
Art. 134 of the second Schedule to the Limita-
tion Act (XV of 1877). Ahamed Kutti v. Raman
Nambudri, I. L. R. 25 Mad. 99 ; and Ram Chandra
Vithal V. Sheilch Mohidin, I. L. R. 23 Bom. 614,
distinguished ; Bhagwan Sahai v. Bhagwan Din,
I. L. R. 9 All. 97 ; Radhanath Dass v. Gisborne
ct- Co., 14 Moo. I. A. 1 ; Yesu Ramji Kalnath
v. Balkrishna Lakshman, 1. L. R. 15 Bom. 583 ;
Behari Lai v. Muhammad Muttaki, I. L. R. 20
All. 482 ; Maluji v. Fakir Chand, I. L. R. 22 Bom.
225 ; Manavikraman Ettan Thamburan y. Ammu,
I. L. R. 2t Mad. 471, and Narayan v. Shri Ram
Chandra, I. L. R. 27 Bom. 373, referred to.
HusAiNi I^anam v. Husain Khan (1907)

I. li. R. 29 All. 471

hI) Mode of Redemption and Liability to
Foreclosure.

181. Payment of m.ortgage-

debt— Tender or deposit of debt— Beng. Reg. XVII
of 1806, .^. /. Under s. 7, Regulation XVII of
1806, if a mortgagee has obtained possession at any
time before a final foreclosure of the mortgage, the
mortgagor's payment or tender of the jDrincipal
sum due under the mortgage-debt saves his equity of

( 8581 )

DIGEST OF CASES.

( 8582 )

[OBTGAGE— con<(?.

8. REDEMPTION— coH/r?.

id) Mode of Redemption and Liability to

FoRECLOSi-RE — contcL
redemption. Held, that the section applies where
the mortgagee has obtained a decree for possession
and wasilat, whether he executes it or not. Sak-

EIMAN DiCHUT V. DHARAM NaTH TeWAEI

3 B. L. E. A. C. 141
182. Tender of por-

tion of mortgage-debt. A mortgag. r cannot ask for
a decree f> r pcssessi^.n without tendering the whole
ff the mortgage-debt. Joy Gobind Roy alias
Bhojraj Roy v. Bundhoo Singh . 17 "W. K. 342

183.

MORTGAGE— ron?.?.

8. REDEilPTION— con<(Z.

(d) Mode of Redemption and Liability to

FORECLOSCKE COIltd.

Tender hij one

of several mortgagors. A tender by one ( r more of
several mortgagors is not such as a m rtgagee is
bound to accept, unless it is made conjointly by the
whole of the mortgagors, or on their behalf and
with their consent. Rambaksh Sing v. Raji Lall
Doss 21 W. E. 428

184 Deposit in Court

by mortgagor — Lexjal tender — Right to mesne profits.
Where a m rtgagor dep sits the amount of the
mortgage for the express purp so of preventing a
foreclosure, he is entitled to wasilat, of which the
mere fact of his having put in a petition, which
refers to some other suit between him and the mort-
gagee, but does not prevent the latter from taking
out the deposit, cannot deprive him. Where a
mortgagor is liable for only a portion of the mort-
gaged property, but pays in the whole amount t >
secure himself against his co-sharers, he is entitled to
wasilat for the whole. Dabi Dutt Srs'GH v. Go-
bind Pershad . . . . 25 W. E. 259

185. , Deposit of mort-
gage-money— Tender — Notice of deposit. A dep' sit
:if the mortgage-money by a mortgagor, accom-
panitd by a protest against the validity of tlie mort-
gage itself and a threat to sue for its cancelment,
imposes no conditi .n upon the acceptance cf the
money so as to render the tender invalid. A depi sit
being once duly made, the mortgagor's equity of
redemption is saved, quite irrespective of whether
the mortgagee has received notice i f the deposit or
not. Hethan Singh v. Nurkoo Singh. Hethan
Singh v. Lokraj Singh . . 3 W. R. 184

186. ■ *S'iti< hy pur-
chaser from moi-tgagor for redemption— Teiider of
mortgage-money. A purchaser of the right of re-
demption of a m' rtgagor may sue without tender
out of Court of the mortgage-debt to the mort-
gagee. The tender of the money (,ut of Court
only affects the purchaser's right to recover his
•costs. Dinonath Btjtobyal v. \Vomachcrn Roy.
3 W. E. 128

187. Time for payment— Tear

cf grace. The year of grace counts from the
date of issue of notice of application for fore-
closure, and not from the date of service of the
notice. Ghazeeood-deen v. Bhookun Doobey

2 Agra 301

188. — Time for pay-
ment— Year of grace — Holiday — Beng. Reg. XVII
of 1806. The year of grace allowed to a mortgagor
by Regulation XVII of 1806 to tender or deposit
the amount due to the mortgagee includes author-
ized holidays, the mortgagor not being entitled to
the deduction of any holidays which may > ccur
when that year expires. Kumola Kant Mvtee v.
Narainee Dossee . . . 9 W. E. 583

189. Time for pay-
ment— Beng. Reg. XVII of ISfiG, s. S — Extension
of time. A Judge has no discretion to extend the
time all' wed 1 1 a mortgag' r under s. 8, Regulation
XVH of 1806. Mahomed Gazee Chowdhry v.
Abdool Mahomed Ameeroodeen

5 "W. E. Mis. 31

190. Time for pay

7n(nt — Dipo it t'nier ol mortgage ihoneii. Where
a n^ortgagoe cxtendid the tine for payment to the
25th November, and the mortgagi r was prevented
by the closing of the Court from depositing the mort-
gage-money in the Judge's Court on that day : —
Held, that the m.ortgagor saved his estate from fore-
closure by depositing the m^ mey in C urt on the
first day after the 25th November on which the
Court was open. The mortgagor having the op-
tion either of depositing the money in the Judge's
Court or of tendering it if there is sufficient excuse
for not dep siting in the Judge's Court, he is not
bound to tender the money and pr-'ve that tender.
Dabee Rawoot v. Heramcn Muhatoon

8 W. E. 223

19L

Time for jxiy-

I i^ie,nt — Tender of mortgage-money — Notice of deposit

I to mortgagee. Where a decree declared plaintiff's

I right to redeem a mortgage whenever within the

! month of Jeth they paid the mortgage-money, but

did not direct that the money should be paid into

Court, and plaintiffs brought the money into Court,

I tn the first day i f the fillowing month, the last day

j ( i Jeth falling on a Sunday ; but did not, however,

I take out executi n for some months, nor apprise

1 the defendant that they had paid the money into

C urt. Held, that such payment was not a proper

tender, and that t > make it a proper tender the

j plamtiffs should n t only have paid the money into

I Ci urt in the month > I Jeth, but were bound to see

j that the mortgagee in possession had due notice of

I such payment. NrriA Ncnd v. Mya Rrx

j 3N. W. 80

I 192. Eight of purchaser to

redeem usufructuary mortgage — Limitation.
A zur-i-peshgi lease, being nothing but a simple
mortgage, may be cancelled on proof of discharge
I f the advance, with interest fnm the usufruct,
or on payment (f the m. ney in cash. The pur-
chaser of the proprietary rights in a zur-i-peshgi
is not barred from suing , to redeem, because he, or
those throuph whom _he claims, did not sue for an

12 R 2

( 8383 )

UlGEyX OF CASES.

( 8584 )

MORTGAGE— co>i/^Z.

8. REDEMPTION— cowicZ.

[d) Mode of Redemption and Liability to

Foreclosure — contd.

account within twelve years from the expiry of the

term, or from discharge of the debt by the usufruct.

PtTLTTJN Sestgh V. Reshal Sisgh . 1 W. R. 7

NuND T,AT.T. V. Balttk . . .2 Agra 122

193, Tender of payment — Bye'

bil-wafas — Foreclosure — Beng. Reg. Ill of 1795, s-
J4 ; Beng. Beg. II of 1S05, s. 3 ; and Beng. Beg-
XVII of ISO'', s. S. Bye-bil-wafas or kut-kobalas
are redeemable like ordinary mortgages and sub-
ject to foreclosui'e. It cannot be laid down as a
rule, universally true, that under s. 14. Regula-
tion III, 1793, a mortgagee's proceeding for a fore-
closure vmder a mortgage of the class ( f bye-bil-wafa
simply cannot be preferred after twelve "years from
tie expiration of the time which the instrument
fi.'^es as the period of redemption of payment, and
on the expiration of which the conditional sale will
become absolute ; f -)r this indiscriminating ground of
decision wnuld include alike adverse occupations and
those which had not the semblance even of such a
character, and would establish a bar arising from
simple occupation, and not from the laches of the
demandant or of others before him. When a mort-
gagee not only seeks the assistance of a Court to give
him possession of his pledge, but also to f reclose
the mortgage, he must effect that object in the mode
prescribed by s. 14, Regulation III of 1895 ; s. 3,
Regulation II, 1805 ; and s. 8, Regulation XVII,
1806. Mere words in the form of a protest which
may accompany a tender will m t defeat it when they
can reasonably be regarded as idle words. But the
payment into Court of the mortgage -money, accom-
panied by a petition disputing the mortgagee's title
to foreclose, and expressing an intention amount-
ing to a notice to sue the mortgagee to recover
back the very money tendered, is not a valid
tender. Pkannath Chowdhky v. Raiikutton Roy
4 W. R. P. C. 37

s.c. Praxnath Roy Chowdry v. Rookea Begum
7 Moo. I. A. 323

194. Payment into

Court of redem-ption-money— Costs. It is sufficient
to bar a foreclosure suit that the principal money
and interest due en the mortgage have been paid in-
to Court within the year of grace, or an extended
time agreed upon by the parties without costs
incurred by the mortgagor in the matter cf the m/.rt-
gige. Z.\LEM Roy v. Deb Shahee.

Marsh. 167 : 1 Hay 373

195 Beivg. Beg. XVII

of ISOfi, s. 8 — Mode of payment. The mortgagors
of certain landed property not having paid the
monevdueonthe mortgige within the stipulated
period, the mortgagees, considering it unnecessary
to proceed under s. 8, Regulati n XVII of 1806,
«.e., without waiting to foreclose the mortgage,
brought a^suit, obtained a decree, and took posses-
sion. Held, that, as the mortgagees took possession

MORTGAGE— co7i<rf.

8. REDEMPTION— conYrZ.

(d) Mode of Redemption and Liability to

Foreclosure — contd.
before final foreclosure, the mortgagors were in a
position to redeem, and might do so by payment of
the advance made on the mortgage, whether such
payment was made in cash or realized by the mort-
gagees fr m the usufruct of the estate. Ishan
Chunder Banerjee v. Juggut Chunder Doss

13W. R. 44

196.

Payment

order of Judge into Collector's treasury. The pay-
ment by order of the Judge into the Collector's
treasury, before the expiration of the year of grace
of a debt due to a mortgagee, was held to be a de-
posit in Court entitling the borrower to redeem.^
Abdool Huq v. Myah Bewah . W. R. 1864, 184

197. Acceptance of

payment — Subsequent ohjection. A mortgagee who
once takes the mortgage-money as deposited by the
m rtgagor within time cannot afterwards sue for
possession, on the ground that the deposit was made
after the expiry of the year of grace, and that he had
applied for the money under wrong information
from his agent. I^hondhar Nowazush Hossein
V. Woosuloonissa Bibee . . 6 W. R. 249

198. Payment into

Court of redemption-money — Legal tender. The
defendant in a foreclosure suit paid into Court the
amount due in respect of principal and interest of
the mortgage. This payment was made after the
day on which, according to the mortgage, the sale
was to become absolute, but within a few days if the-
expiration of the year i f grace. The payment into
Court was accompanied by a petition praying that
the fund might be retained in C: .urt, until the deci-
sion of certain objecti: ns made by the defendant,
disputmg the amount due under the mortgage-
money. Held, that such payment int j Court was
not a tender of the mortgage-money, and that the
mortgagee was entitled t > foreclosi re. Nubungo
Moonjurree Dabea v. Goluckjionee Dabea

Marsh. 45 : 1 Hay 76

s.c. GOLUCKMONEE DeBEA V. NuBUNGO MOON-

JUREE Debea . . . . "W. R. E. B. 14

199. Beng. Beg. XVII

of 1806 — Stipulated period — Notice. In a suit by
a m' rtgagee for possession after foreclosure pro-
ceedings under Regulation XVII of 1806, on the
ground that the mortgagor had failed to pay the
money within i ne j^ear from the notice, the defence
was that the notice had been issued before the lajise
of the time stipulated for repayment. The period
stipulated for the payment of the principal sum was
3rcl July 1866 ; but the deed contained a proviso
that, if the mortgagor paid the interest every half-
year during the contmuance of the security, the
mortgagee would not enforce his security until the
3rd January 1871. Held, that the time for redemp-
tion expired with the period stipulated for the pay-
ment of the principal sum, i.e., the 3rd July 1866.

( 8585 )

DIGEST OF CASES

85!i(i

MORTGAGE-

■htd.

MCKTGAGE-ccw/(?.

S. REDEMPTION— coM^fZ.
(d) Mode of Redemption and Liability to

FORECLOSUKE — COUtd.

"VVooMA Chcrx Chowdhry v. Beharee Lall
MooKERJEE . . . . 21 W. R 274

200. — Beng. Reg. X VII

of 1806, ss. 7, S — Tender of mortgage-money —
Vncorulitional tender. Where, in a suit for fore-
closure < f a mortgage by conditional sale, a notice r f
foreclosure had been issued under Regulation XVII
of 1806, and the mortgagors deposited in Court the
money due on the mortgage bef<ire the expiry of the
year of grace, but at the same time denied the mort-
gagee's right to receive the money, and threatened
them with legal proceedings if they took it from the
Court : — Held, that the deposit was not an uncondi-
tional tender of the money due on the mortgage ;
that it was vitiated by the conditions under which
it was made ; that the mortgagees were not bound
to accept a deposit so vitiated ; and that therefore
it was not valid to prevent foreclosure. Prannath
Boy Chowdhry v. Ram Rutton Raf, 7 Moo. I. A.
323, a.nd Abdoor Ruhmnn v. Kisto Lall Ghose, B. L.
R. Sup. Vol. 59S followed. Makhax Kuar v.
Jasoda Kuab . . . I. L. R. 6 All. 399

201.

Mortgage jyrior

to Beng. Reg. XVII of 1806— Beng. Reg. I of
IT'S. When the time fixed f( r payment of a mort-
gage, in the nature of a bye-bil-wafa, was the end < f
1802, and there was no allegati. n of tender or de-
posit of the money prior to that date : — Held, that
the mortgagor had, under Regulation I of 1798, lost
his right of redemption, and that the benefit of Regu-
lation XVII of 1806 could not be applied to mort-
gages made prior to the passing of that enactment.
RuHMUN V. Shtjmsooddeek Hyder

W. R. 1864, 183

202.

Interest — Deed ivithovt pro-

vision for interest — Payment only of principal money.
When a deed of mortgage is silent as tj interest,
paj-menttf the bare principal within the year (f
grace is suflScient t i bar foreclosure. Radha-
NATH Sein v. Bunco Chunder Sein

W. R. 1864, 157

203. Interest, payment of—

Irtterest exceeding principal. Held, that the de-
posit of the principal due, and a sura equal t >
the principal by way of interest, was sufficient under
the law applicable to the case, and that no sum
could legally accrue due as interest during the year
of grace, as the law prohibited the recovery cf in-
terest beyond the principal. Sheobukts v. Dhakee
IThaeoor .... 2 Agra Ft. aI, 194
204. Mortgage not
providing for interest — Usufruct — Payment only
i.
of
«u
I

of principal money. In an usufructuary mortgage,
where there is no stipulation for interest, the mort-
is not entitled to it, the usufruct going in lieu
of interest, and the payment of only the principal
•^um is a bar to foreclosure. Gdnga Pershad K<y
LnayetZahera . . . 16W. R. 251

id) ]\Iode

R EDEMPTION— cwW.

of Redemption and LiABiLiiY

FoRECLOSURE—COnfJ.

205. ' Payment within

a year— Reg. XVIII of 1806, f. 7— Interest.
"Where interest is not reserved by the mortgage-deed,
but it provides for repayment of the principal only,
a payment into Court within a year after the in-
stitution of a foreclosure suit of the principal only
without interest satisfies the 7th section ofRegula-
tion XVII of 1806, and entitles the mortgagr.r to the
i-edemption of the property. Roopnarain Singh
V. AL4.DH0 Singh . . . Marsh. 617

206.

Mortgage with

condition that mortgagor should remain in posses-
sion until default in payment of interest — Relief
from forfeiture. The defendant mortgaged certain
premises to the plaintiff by a deed of mortgage,
which contained a condition that the mf)rtgagor
should remain in possession so long as the interest
was regularly paid. Default in payment of the
interest was made, and the mortgagee sued for pos-
session of the mortgaged premises. Held, that the
mortgagor was entitled to equitable relief against
the entry of the mortgagee on payment of all arrears
of rent, together with interest upon each instalment
and C( sts ; and three months' time was allowed to
the mortgagor to make such payment. Sitar.axi
Dandekar v. Ganesh Gokhale

6 Bom. A. C. 121

207. -_ Interest, nan-
payment of — Right of assignee of mortgagee to
foreclose in default of payment. Where the mort-
gagor covenanted to paj' to the mortgagee the prin-
cipal sum at a given date and interest in the mean-
time, and in default of payment of the principal on
the date mentioned, interest on so much as should
remain due at the same rate, the mortgagee cove-
nanting to reccmvcj- in payment on the given date,
and in default of payment of principal ov interest at
their respective due dates the whole sum to become
due : — Held, that the assignee of the mortgagee had a
right to f ( rech se on default of payment of an instal-
ment ( f interest bef( re the date i n which the princi-
pal wa.s made payable. ^ Prosaddoss Dctt r. Ram-
DHONE McLLicK .\^^_ . 1 Ind. Jur. N. S. 255

208. Default in pay.

ment of interest — Action on covenant before princi-
pal sum is due. Where, by a proviso in a mortgage,
it is agreed that, " in case of default in payment by
th" HKitL'aL'or of the principal sum or any one
instalment of interest thereon," etc., " then and in
any such case the whole of the money so secured by
these presents shall immediately thereupon beccme
due and payable with a power tf sale on such de-
fault," and where the principal sum and interest
therei n was also secured by a bond and warrant of
attorney to cofess judgment thereon, tiic condition
c)f which was in the same words as the Covenant for
repayment in the mortgage : — Held, that, in an
action on the covenant ctintaintd in the proviso and
on the bond brought on default of payment of an

( 8587 )

DIGEST OF CASES.

( 8588 )

MORTGAGE— ^owf(?.

8. REDEMPTION— co»/(7.

{d) Mode of Redemption and"^' Liability to

FoRECLOSUBE — contd.
instalm(>nt of interest, but before the date on
which the principal was payable, the plaintiff could
only recover on either the covenant or the bond in
respect of the interest unpaid. Fool Chttnd

JOHTJKRY V. RaMKRISTO BoSE

1 Ind. Jur. N. S. 425

209. Breach of con-
dition in mortgage — Relief against forfeiture. In Nov-
ember, 1873, M sued for the cancelment of a deed
of usufructuary mortgage executed by her in Nov-
ember, 1856, and for the ejectment of the mortgagees
on the ground of the breach of a condition in the
deed that the mortgagees should pay her a life
annuity of R15 durmg the term of the mortgage
(twenty years) and also after foreclosure, otherwise,
on any failure, they would be liable to ejectment and
to the forfeiture of the mortgage. No payments
of annuity had been made, and each failure to pay
was held to be a separate breach of the condition.
Held, that, if there had not been so many successive
breaches, and if the defendants had at any time
brought into Court the arrears with interest or
had offered to do so, the Courts below, although
they could not have passed a decree for the money,
might have withheld a decree for enforcing the for-
feiture. Sadha v. Bhagwani . 7 N. W. 53

210.

Mortgage

conditional sale — Beng. Reg. XVII of iA'6V', ss. 7
S — Redemption. In the part of India where
Bengal Regulation XVII of 1806 is in force, the
right to redeem a mortgage by condition il sale
depends entirely upon it, whatever may be the true
construction of the terms of the condition in regard
to payment of interest. Within a year after notifica-
tion of a petition for foreclosure a mrrtgagor de-
posited the principal debt, and interest f.ir the last
year of the mortgage term, which had expired.
Interest for prior years of the term had not been
paid ; but this, according to the mortgagor's con-
tention, was, by the terms of the condition, treated
as a separate debt. Held, that as the mortgagor
had not deposited the interest due on the sum lent,
required, according to s. 7 of the Regulation, where,
as here, the mortgagee had not obtained posses-
sion, and as the year of grace had expired, the con-
ditional sale had become cuiiclusive under s. 8,
involving the dismissal of the mortgagor's suit for
redempti .n. £_MansurJAli Khax v. Sar-jf Prapad
I. L. E. 9 All. 20
L. 11.13 1. A. 113

211. . Conditional sole

— Interest — Mesne profits — Foreclosure — Beng. Reg.
XVII of 1S06, s. 7. A deed of conditional sale,
after reciting that the vendor had received the
sale-consideration (P. 199) and had put the vendee
in such possession of the property as the vendor
himself had, proceeded as follows : '' I (vendor) shall
not claim mesne profits, nor shall the vendee claim
interest : in case the vendee does not obtain pos-

MORTGAGE— ccn''Z.

8. REDEMPTION— conf<Z.

{d) Mode of Redemption and Liability to

Foreclosure — contd.
session, he shall recover mesne profits for the period
he is out of possession : and when, after the expiry
of the term fixed, I repay the entire sale-considera-
tion in a lump sum, I shall get my share redeemed :
in case of default in payment of sale-consideration,
the sale shall be deemed to become absolute." The
vendee did not get possession of the property for
some years, and, on the expiry of the term, took
proceedings under Regulation XVII of 1806 to
foreclose. The legal representative cf the vendor
deposited the sale-consideration mentioned in the
deed cf conditional sale (R199) within the year of
grace. In a suit by the vendee for possession of the
property, the sale having been declared absolute,
the question arose whether or not th'^ hgal repre-
sentative of the vendor should have depc sited, by
way of interest, in order to prevent the sale from
becoming absolute, in addition to the sale-considera-
tion, the amount of mesne profits for the period the
vendee was out cf possession of' the property.
Held (Spankie, J., dissenting), on the construction
of the deed of conditional sale, that the deposit of
the sale-consideration (R199) was sufficient for the
redemption of the property. Rameshab Singh v.
KanhiaSahu . . I. L. R. S Ail. 653

212. Lease of mort-
gaged 'property hy inortgagee to mortgagor — Inten-
tion of parties as to mode of payment and default
— Remedies of mortgagee under mortgage. On the-
16th March, 1874, L gave M a mortgage on certain
land for R24,000 for a term of ten years, by which-
it was provided, inter alia, that the mortgagee
should take the profits of the land in lieu of interest ;
that the mortgagee should grant a lease cf the
land to the mortgagor, the latter paying the former
the profits ci the land every harvest in lieu of in-
terest ; that if the mortgagor failed to pay the
mortgagee the profits of the land by the end (jf any
year, he should pay interest on the principal amount
of the mortgage at the rate of one per cent, calcu-
lated from the date ( f the mortgage, and in suck
case the mortgagee should have no claim to the
profits ; and that, if the mortgagor failed to pay the
mortgagee the profits by the end of any year, the
mortgagee should be at liberty to cancel the lease
and to enter on the land, and collect the rents
tliereof and apply the same to payment of interest.
On the 21st March, 1874, M gave L a lease of the
land, under which R 1,980 was the sum agreed to be
payable annually as profits m lieu cf interest.
In 1879 M, who had not been paid any profits,
sought to enforce in the Revenue Courts the condi-
tion as to entry on the land, but was success-
fully resisted by L's widow. On the 16th January
1880, M sued L's widow for interest on the principal-
amount of the mortgage at the rate of one per cent,
calculated from the date of the mortgage to the date
of suit, claiming the same by virtue of the pro-vi-
sions of the mortgage, on the ground that he had
not been paid any profits. Hekl, that the mortgage- .

( 8589 )

DIGEST OF CASES.

{ 859(J )

MORTGAGE— co?i/rf.

8. REDEMPTION— conW.

(d) Mode ( f Redemption axd Liability to

FoKECLOSURE — contd.
and lease transactions must be regarded as one and
indivisible, and the questions at issue between the
parties be dealt with qua mortgagor and mort-
gagoe ; that so regarding such transactions and deal-
ing -with such questions, M and L did n< t stand in
the pc sition of " landlord " and " tenant " and the
proceedings of 1879 in the Revenue Courts were
had without jurisdiction ; also that, althi ugh look-
ing at the terms ff the contract of mortgage it wa>;
the intention of the parties that, en the mortgage
failing to pay the mortgagee the profits by the end of
any year, the latter should in the first place seek
possession of the land, yet as M had never obtained
possession, but on the contrary had been resisted
when he sought to obtain it, his present claim for
interest was mamtainable. The Court directed th;it
so much of the interest as was due at L's death
should be recoverable from such pr.-perty of his as
had come into his widow's hands ; and as to tie
rest, which related to the period durmg which the
widow had been in possession and in receipt of the
profits, that it should be recoverable from her per-
sonallv. Bhaghelin v. ilATHURA Prasad

I. L. R. 4 All. 430

213.

V suiructuary
of — Benr). R-g.

mortgage — Inlerest, payment
XXXiV of 180?, ss. 9, 10— Act XXVIII of 1S55
—Ad XIV of ISrO— Transfer of Property Act ilV
of ISS?), ss. 2, 62. A deed of usufructuary mort-
gage executed in 1846, under which the irortgagee
had obtained possession, contained the following
conditions : " Until the piortgage- money is paid
the m irtgagee shall remain in possession of the
mortgaged land, and what profits may remain after i
paying the Government revenue are allowed to the !
mortgagee, and shall not be deducted at the time of |
redemption. At the end of any year, the mortga- ;
gors may pay the mortgaged- u'oney and redeem th,'
property. Until they pay the Diortgage-moncy
neither they nor their heirs shall have any right in i
the property." In 1884 a representative in title i f [
one of the original mortgagors sued to redeem his |
share of the mortgaged property, upon the allega-
tion that the principal amount and interest due j
upon the mortgage had been satisfied from the pro- I
fits, and that he was entitled to a balance ( f K45. i
It was found that from the profits, after deducting
Government revenue, the principal money with :
interest at the rate of 12 per cent, per annum
had been realized, and that the surplus claimed by
the plaintiff was duo to him. The lower .Appellate ,
Court dismissed the suit, on the ground that under ,
B. 62 (6) of the Transfer of Property Act (IV t.f
1882), and with reference to the terms of the deed
of m >rtgage, the plaintiff was not entitled tc reco-
ver the property until he paid the mcjrtgage -money. ''
Held, that, although the word " interest " was not i
specifically used, the natural and reasonable con- |
struction of the deed was that it was arranged that
the mortgagee should have possession of the pro- j

MOETGAGE— (on/c?.

8. REDEMPTION— conW.
(d) Mode 'of Rf.demptiox axd Liability to

FoEECLOSrRE — COIltd.

party and enjoy the profits thereof, until the prin-
cipal sum Was paid, in lieu of interest. Held,
that the provisions of ss. 9 and 10 of Regula-
tion XXXIV (f 1803, which was in force when the
deed of mortgage was executed, were not affected r r
abrr gated by Act XXVIII rf 1855 (r Act XIV rf
1870 or Act IV of 1882 ; that these provisions were
incidents attached to the mortgag.ir's rights of which
he was entitled to have the benefit ; and that t! e
contract of mortgage being subject to these proxi-
sions, the charge w< uld have been redeemed as soon
as the principal mortgage-money with 12 per cent,
interest had been realized by the mortgagee from
the profits of the propertv. S.\mar Ali v. KARni-
T^-LAH . . . .' I. li. R. 8 Ail. 402

214, ■ Vsufritctnaty

mortgage— I Merest^Waiver. By a deed r f usu-
fractuary mortgage dated in 1875, a sum of R 30,000,
with mterest at Rl per cent, per mensem, was
advanced on the security c f certain property, for a
period cf ten years. The deed contained Various
provisions for securing the payment of interest to
the mortgagee, and among these a provi^ii.n that ho
should have possession of the pro.perty and take the
profits on account of interest, the "pr. fits be'ng
fixid at a certain amount yearly, leaving an agreed
balance < f interest to be paid yearly in cash. Iliere
was also a provision, that in the evert of possession
not being given, the n'orti.'agee n ight treat the prin-
cipal money as immediately due, and recover it at
once with interest at the rate of Rl-6 per cent, per
mensem. The mi rtgagee did nt t take p( ssession of
the mortgaged property, and t<H>k no steps to obtain
such possession, or to recover the n cney for nine
years, durmg which no interest was paid. In Nov-
ember 1884 the mortgagee brought a suit against
the mortgagors to recover the mortgage-m< ney,
claiming" interest from the date rf the m<.rtgag"e-
deed to the date of the suit at Rl-6 per cent, per
mensem. Held, that the fair mferencc of fact from
the circumstances above described was that the
mortgagee waived the provisions for securing and
recovering the interest, and that the transact inn
must be looked at as simplj' one (f a Ian frthe
specified period at the agreed rate, i.e., H 1 j^er cent,
per mensem. Gaxga Sahai v. Lachmax Singh

I. L. R. 8 All. 194

215. Int(rest—Suit

for redemption — Transfer of Properly Act, s. S4.
In February, 1883, a decree for pre-emption was
obtained in respect of a mortgage by conditional sale
executed in August, 1882. On the 23rd August, 1SS3,
the decree-holder executed his decree by depositing
the principal amount of the mortgage-money and
obtained possession of the property in substitution
for the original mortgagee. In June, 1884, the mort-
gagor, proceeding under s. 83 of the Transfer of Pro-
perty Act, deposited in a Court the sum of R699,
claiming the same to be adequate for redemption.
The case was, however, struck off in consequence

( 8591 )

DIGEST OF CASES.

( 8592 )

MORTGAGE— conicZ.

S. REDEMPTION— cojiifZ.
{(l) Mode of Redemption and Liability to

FoEECLOsuRE — contd.
of the pre-emptor's objection to receiving the
deposit on the ground that it did not include
the interest due on the mortgage. The deposit
remained in Court, and on the 21st August, 1884,
the mortgagor deposited a further sum on account
of interest, but this also the pre-emptor refused
to receive, for the same reason as before. In
a suit bj' the mortgagor for redemption of the
mortgage, it was found that the amount de-
posited was all that was due on the mortgage on
the 21st August, 1884. Held, that until the 23rd
August, 1883, when the defendant enforced his pre-
emptive decree by depositing the consideration for
the conditional sale of August, 1882, he had no in-
terest in the subject of pre-emption as would entitle
him to any benefits arising therefrom, and that the
defendant was not entitled to claim any interest
on the mortgage money for the period antecedent
to the 23rd August, 1883. Semhle : That the
proper person entitled to receive the interest
for that period was the original conditional vendee,
and the Court which passed the decree for pre-
emption should have allowed him the amount of
such interest in addition to the principal mort-
gage-money. Ashik Alt v. Mathura Kandu, I. L. R.
5 All. 1S7, referred to. HpM, with reference to s.
84 of the Transfer of Property Act (TV of 1882), that
the Courts below were right in not allowing interest
to the defendant after the 21st August, 1884, when
the plaintiff, to his knowledge, deposited the whole
money due on the mortgage. Deo Dat v. Ram
AuTAR . . . : " I. L. R. 8 All. 502

216. Mortgnqe by

conditional sale — Interest — Foreclosure. A deed of
mortgage by conditional sale executed in 1872,
giving the mortgagee possession, contained a stipu-
lation that the principal money should be paid
within ten years from the date of execution of the
deed, and that, in default of such payment, the
conditional sale should become absolute. It con-
tained the following condition as to interest :
" As to interest, it has been agreed that the mort-
gagee has no claim to interest and the mortgagor
has none to profits." The mortgagee, however,
did not obtain possession. In 1878 the mortgaged
property was purchased by the appellant at a sale.
in execution of decree. In 1884 the mortgagee
brought a suit for foreclosure against the purchaser
and the heirs of the mortgagor, claiming the prin-
cipal money with interest at 8 annas per cent, per
mensem. The defendants pleaded that the plaint-
iff was not entitled to claim interest. Held, that
whatever claim the mortgagee might have agaitnt
his mortgagors for compensation or damages by way
of interest in consequence of the failure to get pos-
session under the contract, he had none enforceable
in this respect against the land, which had passed
free from charge for interest to the purchaser.
Ramcshur Singh v. K'.nahia Sahu, I. L. R. 3 All.
653, referred to. Allah Bakhsh v. Sada Sikh

I. L. R. 8 All. 182

MORTGAGE -cOTifcZ.

8. REDEMPTION— cowfcZ.
(d) Mode of Redemption and Liability to

Foreclosure — confd.

217.

Covenant — Usufructuary

mortgage — Covenant hy the mortgagor to pay the
mortgagee arrears of rent due at the time of redemp-
tion— Payment hy mortgagee of arrears of revenue
— Right of mortgagee to reimbursement before redemp-
tion. On the 27th August, 1883, J/ and S jointly
executed two usufructuary mortgages for the sums
of R 3,000 and R 5,000, respectively, in favour of
the defendants. On the 24th March, 1886, the mort-
gagors executed another usufructuary mortgage in
favour of the plaintiffs for R 15,000, entitling them to
possession of the property mortgaged. The second
mortgagee instituted a suit to redeem the prior mort-
lages by dep siting in C-nirt ti.e principal sura of
R8,000. The defendants urged that a sum of
R4,000 was due to them besides the principal
amount, without payment of which the property in
suit could not be redeemed. The Court found that a
sum of R498-15-9 only, composed of certain arrears
of rent and an item of arrears of Government re-
venue paid by the defendants, was due to them and
decreed redemption of the property on condition
of payment of the aforesaid sum. Both the jsarties
appealed. Held, that the items of arrears of rent
were recoverable under the covenant contained
in that behalf in the mortgage-deeds ; as to the
item for arrears of Government revenue, it was
clear that, unless this revenue was duly paid, the
whole estate might have been sold to realize it,
thereby putting an end to all the rights of the
mortgagors and mortgagees ; and therefore upon
the general principles of law upon which the doctrine
of salvage and subrogation proceeds, persons in the
position of mortgagees in possession are entitled to
claim that sum before the property which they
saved from sale for arrears of revenue could be
redeemed. S. 72 of the Transfer of Property Act
only reproduces the rules of law which Courts of
Justice in India have uniformly adopted. GiR-
DHAR Lal V. Bhola Nath . I. L. R. 10 Ail. 611

218. ___ Redemption

claimed under terms of mortgage — Insufficient
tender of mortgage-money — Transfer of Property
Act [IT of 1SS2), ss. GO, S3, and S4. According to
the judgment of the Appellate Court below, a mort-
gagor, having liberty by the terms of his mortgage to
redeem at the end of its second year, on payment of
the whole of the principal and interest, was not
entitled to a decree for redem23tion, in a suit broughPb
after the close of the second j^ear, on showing only
that in the first half of the second year the principal
money had been deiJosited in Court, and that for the
interest, for both years, decrees had been obtained
by the mortgagee against him, before his suit was
instituted. The above not showing payment or
tender of the interest, of which payment was se-
cured by the mortgage, an appeal was dismissed.
Hewaxchal Singh v. Jawaiiir Singh

I. L. R. 16 Gale. 307

219. liimitation — Decree for re-

demption without proviso for foreclosure or payment

( S593 )

DIGEST OF CASES.

( So94 )

MORTGAGE— fon/fZ.

8. REDEMPTION— conW.
(d) Mode of Redemption and Liability to

FOKECLOSUKE — COIltd.

within a fixed time — Effect of not e.veccuting decree
for redernftion. A decree for redemption which
does not provide for payment of the mortgage-
debt, within a fixed time, or for foreclosure
in case of default, operates of itself as a fore-
closure decree, if not executed within three years.
On 12th November, 18SS, A obtained a decree for
redemption on paj^ment of a certain sum of money
to B (the mortgagee). The decree contained no
direction as to foreclosure, or as to the time within
which the payment was to be made. On 26th No-
T^ember, 1884. B, the mortgagee, sued to recover the
mortgage-debt by sale of "the property mortgaged.
On Sth April, 1885, A paid into Court the sum direct-
ed to be paid by the redemption decree. B refused
to accept the payment and insisted upon his
right of sale. Held, that no time having been fixed
by the decree for redemption, A had thrte years
within which to execute the decree ; and as he had
paid the money within the three years, A was en-
titled to recover the property. Held, also, that the
decree for redemption would, if not executed with-
in three years, o^jerate as a foreclosure decree, and
therefore effectually determine the rights under the
mortgage both of the mortgagee and the mortgaaor.
JMaloji v. Sagaji . . I. L R. 13 Bom. 567

220. Decree for re-
demption— Absence of clause as to time of pay-
ment or foreclosure — Execution of the decree after
three yean: — DarJchasts presented from, time to time
— Limitation Aa i A' [' of 1S77\ Art. 179). ^^"here a
redemption decree contained no clause as to the tinie
for payment of the mortgage-debt. ( r foreclosure in
default of payment : — Held, that the mortgagor
could still, after the expiration of three yearsfrom
the date of the decree, execute it by paying th(!
mortgage money, having regard to various dark-
thasts presented by him from time to time, provided
the darkhasts complied with the conditions of the
Limitation Act (XV of 1877). Dicta to the con-
trary in Gan Savant Bal Savant v. Narayan
Dhond Savant, I. L. R. 7 Bom. 467, and Maloji
V. Sagaji, I. L. R. 13 Bom. 567, disapproved of.

N.\RAYAN GOVIND V. AXANDKAM KOJIRAM

I. L. R. 16 Bom. 480

221 Mortgagee's costs — Decree

directing payment of mortgagee's costs on a certain
date, or, in default, foreclosure — Effect of such default
— Enlargement of the time fixed for redemption. In a
redemption suit the Court of first instance found
that the mortgage-debt had already been paid off
out of the rents of the nu rtgaged property, and it
accordingly awarded possession to the "plaintiff,
directing that each party should bear his own costs.
In execution of this decree, the mortgagor to<.k pos-
session of the property in dispute. On appeal by the
mortgagee, the District Court amended the decree
by directing the mortgagor t > pay the mortgagee's
costs of the suit by a certain day, or, in default, to
stand for ever foreclosed. The mortiragor failed to

MORTGAGE— coM^J.

8. REDEMPTION— conf(f.
(d) Mode of Redemftiox axd Liability to

FOKECLOSTJKE COllld.

pay the costs as directed. Thereupon the mort-
gagee applied in execution to have the property
restored to his possession. The Subordinate Judge
granted this application. The District Judge, in
appeal, held that the decree did not provide for
delivery of the property by the mortgagor to the
mortgagee. He, hoM-ever, directed the mortgagor
to pay the mortgagee's costs with interest. On
appeal to the High Court : — Held, that as the mort-
gagee's costs, which became a part of the mortgage-
debt, were not paid on the due date, the mortgagor
was finally foreclosed, and the property thereupon
passed to the mortgagee. It was, therefore, not
competent to the Court, in execution, to practically
enlarge the time for redemption, by allowing the
mortgagor further time to pay the mortgagee's

costs. SUBHAXA V. KkISHXA

I. L. R. 15 Bom. 644

222.

Default in payment — De-

cree for redemption— Absence of clause for foreclosure
on non-payment in three mcmtJi.s — Default in pay-
ment in time allotced. In a suit for redemption the
mortgagors obtained a decree on 1st March, 18S6,
whereby they were directed to pay the mortgagee
the sum of K649 Avithin three months, whereupon
they were to get p ssession of the mortgaged pro-
perty. The decree contained no clause for fore-
closure in the event of non-payment. On 19th
April the mortgagees appealed to the High Court
against the decree. On 12th October, is6(3. the
mortgagor paid the R649 int > C urt and applied
for execution of the decree, which, though the three
months had expired, the Court allowed holding that
it had power t > enlarge the time for execution :
this order was set aside on appeal, the High Court
holding that there was no power in the Court exe-
cuting a decree to enlarge the time for execution.
On 15th July, 1890, the mortgagee was allowed to
withdraw his appeal, and the mortgagor's applica-
tion t > be allowed to execute the decree was re-
jected, the Court holding that the time could not be
computed from the withdrawal of the appeal, but
that it ran from the date of the original decree.
Quarc : Whether there being no foreclosure clause
in the decree, the mortgagor could file an. ther
suit to redeem. Chcdasa-ma Maxabhai Madak-

SAXG V. ISHWAKG.\R BCDHAG.\K

I. L. R. 16 Bom. 243
Decree for re-

demption on jxiyment of a certain amouiU, and on
default, mortgagee to recover possession — Suit for
an account by mortgagor — Right of suit. A mort-
gagee having obtained | ossession of mortgaged
property imder a decree, which directed the mortga-
gor to redeem on payment ( f a certain am. tmt, and
in default the mortgagee to re over and retain pos-
session until payment : — Held, that a subsequent
suit by the m rtgagor against the mortgagee for an
accoimt and possession would not lie. The mortga-
gor could recover possession only t n payment of the

( 8595 )

DIGEST OF CASES.

( 8596

MORTGAGE— cowiii.

8. REDEMPTION— co«<cf,

(d) Mode of Redemption- and Liability to
Foreclosure — concld.

amount mentioned in the mortgage-decree. Datta-
traya Bavji v. Anaji Eamchandra, P. J. {1SS6)
237, distinguished. Rahbhat v. R.^gho Krishna
Deshpasde . . . I. L. E.. 16 Bom. 656

Taxi Bagavax v. Hari

I. L. R. 16 Bom. 659 note

MORTGAGE— jowff?.

8. REDEMPTION— comW.

224.

■ Transfer of Property Act

(IV of 1882), s. 93—Eedemption decree— Time
for and manner of redemption. In a suit en a
kau'im or usufructuary mortgage brought by the
mortgagor a decree was passed on 16th March,
1889, whereby it was only directed that ( n payment
by theplaintifiof a certain sum within six months,
the defendant should surrender the m rtgage
premises to him. Against this decree an appeal was
filed objecting both to the direction for surrender
cf the mortgaged premises and also to the sum
fixed as the amunt payable by the m( rtgagor.
On 21st August, 1889, the appeal was withdrawn
so far as concerned the first of these matters : as to
the second, the Appel'ate Court heard the appeal in
June, 1 890, and merely confirmed the original decree.
In February, 1890, the plaintiff applied for execution
and tendered the aniour.t menti( ned in the decree,
siatirg I hat he would have paid it before but
for the appeal. The C:urt of first instance made an
Oide: as prayed and the money was paid to the
mortgagees, and the mortgage premises were surren-
dered to the plaintiff. On appeal by the mort-
gagees against this order : — Held, that' the appeal
should be dismissed on the grounds that the mort-
gage had never obtained an < rder for sale under
the Transfer of Property Act, s. 93, and the
mortgagor's equity of redemption had not become
extinct, and that the necessity f r a sale was
obviated by payment before any crder was made
under that section. Kanaka Kurup v. Govinda
KrRUP . . . . I. L. R. 16 Mad. 214

225, Future interest— decree

for foreclosure giving future interest, effect of, as
charging mortgaged properttj — Transfer of Property
Act {IV of 1SS2), s. S6— Civil Procedure Code, s. 209.
AA^here in a decree for foreclosure interest subse-
quent to the decree was included in the amount
made payable to the plaintiff. Held, that such
future interest, supposing it c.uld be properly
awarded, concerning which no opinion was expres-
sed, could not be treated as a charge upon the land,
but the judgment-debtor was entitled to resist fore-
closure on payment within the prescribed peri( d of
the mortgage-mi.ney and interest up to date of de-
cree, the decree-holder being at liberty to recover
the future interest only from the judgment-debtor
personally. Bh-awaxi Prasad v. Brit Lal '

I L. R. 16 All 269 I

-See Raj Kumar v. Bisheshar Nath i

I. Ii. R. 16 All, 270 I

(e) Interest.

226.

Redemption —

Terms of redemption — Covenant by mortgagors to pay
interest at 2 per cent. — Construction. On the con-
struction cf a covenant in a deed of mortt^age
between Hindus that the mortgagors would on
redemption pay interest " at the rate of 2 per cent.,"
it was held by the Judicial Committee that the
expression " 2 per cent." meant " 2 per cent, per
mensem." Lekha Sdsgh v. Champ at Singh (1906)
I. L. R. 28 All. 724

227. — Mortgage— De.

cree, rate of interest in— Contract rate not C07npulsory
after date fixed for redemption. In suits on mort-
gages, it is not compulsory on the Court to allow the
contract rate of mterest after the date fixed for
redemption by the decree. Commercial Bank of
India v. Ateendrulayya, I. L. R. 23 Mad. 637, fol-
lowed. Saminathan Chettiar v. Swamiappa
Naicker (1905) . . I. L. R. 29 Mad. 170

228. — _ Rate fixed by

Court in suit by prior mortgagee not binding in a sub-
sequent suit by puisne inortgagee to redeem.. AATien
in a suit by a prirr mortgagee a decree for sale is
passed which fixes the rate of interest after the date
for redemption the rate so fixed is not binding as
between the prior mortgagee and a puisne mort-
gagee, who was not made a party to the suit. In a
suit by such pitisne mortgagee, for redemptior!
against the prior mortgagee, the mortgage v,-ill be
considered as subsisting and interest will be awarded
on the footing of the mortgage without reference to
the decree in the prior suit. Umesh Clmndra Sircar
V. Zaar Fatima, I. L. R. 18 Cah. VU, followed.
Gangadas Shutter v. Jogendra Nath Mitter, 11
C. W. N. -^03, dissented from. Thenappa Chet-
tiar V. Marijitjthu Nandan (1907)

I. L. R 31 Mad. 258

(/) LlMITAIION.

229. Limitation Act

{XV of IS 7 7), Sch. II, Art. 179— Decree for re-
demption— Extension of time for payment of the
mortgage amount — Execution. In a suit for re-
demption of the mortgaged property the decree
directed that, upon payment of the mortgage
amount within six months from its date, the decree-
holder should take possession of the mortgage-
property. The decree was affirmed on appeal on the
6th November, 1896. The decree-holder failed to
pay the amount within the time fixed in the decree.
The present ajiplication was made on the 15th Octo-
ber, 1902, to the Court to have the time extended
for three months. The decree-holder's last applica-
tion to execute the decree was made on the 21st
April, 1897. Held, that the application was barred
by limitation. Notwithstanding that time is granted
to a mortgagor for payment, a decree for redemp-
tion such as that in the present case should be taken
to be executable from the passing of the decree and
is therefore governed by Art. 179, Sch. II of the

( 8597

DIGEST OF CASES.

( 8598 )

MORTGAGE— cow^f/.

8. REDEMPTION— coHYfZ.

'/) LiMiTAiiox — concld.

Limitation Act. Bungiah Gounden v. Ncniappa

Boic, I. L. R. 26 Mad. 7S0, approved. Etyati Poo -

PARAMBIL BaVA V. MaTALAKAT KhISHXA MeXON

(1905j .... I. li. R. 28 Mad. 211

230. - Stipulation for

redemption within seven years — Suit for redemption —
Limitation — Starting point. The plaintiffs' an-
cestor executed a sale-deed of certain property in
favour of the defendant's ancestor who simultan-
eously executed an agreement to reconvey. The
latter deed provided that if Avithin a period of seven
years [andar miad sat sal) the vendors paid to the
vendee R300, which was the consideration for the
sale, the vendee would reconvey the property.
Held, that the transaction amounted to a mortgage
by conditional sale, that the mortgagor had no
right to redeem the mortgage before the expiry of
seven years from the date of the mortgage, and that
time did not begin to run until after seven years
from the execution of the mortgage. Kalka Pra-
sad V. Bhuiyax Din (1909) . I. K E. 31 All. 300

Ig) Miscellaneous.

231.

deht — When interest cease.

Interest — I-nterest on mortgage-
to run — Deposit by mort-

gagor under s. S3 of Transfer cf Property Act {IV
of 18S2) — TXdy of mortgagor making such deposit
when mortgagee is a minor — Appointment of gxiardian
ad litem — Transfer of Pro^Krty Act {IV of 1SS2),
es. SI and 103. On the 2oth October, 189S, the
plaintiff passed a mortgage deed to the defend-
ant, which provided that in case of redemption
the mortgagor should pay interest for the whole year
in which such redemption shoiild take place. On the
12th October, J 899, the mortgagor, with a view to
redeem, deposited in Court, under s. 84 of the
Transfer of Property Act (IV of 1882), the sum of
R 2,000, which was the whole amount due on the
mortgage for the then current year ending 24th
October, 1899. The mortgagee was then dead, and
his son and heir was a minor, and it Mas therefore
necessary that a guardian ad litem should be
appointed to receive notice of the deijosit as required
by s. S3. Steps were accordingly taken to appoint
the minor's mother, and, on the 18th November,
1899, she was duly appointed guardian ad litem.
Notice was then served upon her calling on her to
show cause why she should not receive the deposit.
The notice vvas made returnable on the 9th Decem-
ber, 1899, on which day she refused to accept the
deposit on the ground that it did not include the
Interest which had accrued due for the year com-
mencing 25th October, 1899. The deposit was con-
sequently returned to the plaintiff', who then filed
this suit for redemption. The Subordinate Judge
passed a decree directing redemption on paj-ment to
the defendant of R 2,000 and also interest for the
year commencing 25th October, 1899. The District
Judge varied this decree, refusing to give the addi-

MORTGAGE —contd.

8. REDEMPTION— cowW.

{g) Miscellaneous — contd.
tional interest, holding that " on making the deposit
the plaintiff (mortgagor) had done all that had to
be done by him " to enable the defendant to take
the deposit out of Court as provided by s. 84 of the
Transfer of Property Act (IV of 1882), and that
therefore interest had ceased to run. On apj)eal to
the High Court : Held (reversing the decree), that
the defendant (mortgagee) was entitled to the
additional interest. The defendant (mortgagee)
was a minor. It was therefore requisite that a
guardian ad litem should be appointed, both to
receive service of the notice of deposit under s. 83
and to take the deposit out of Court. It could
not be said that the mortgagor (plaintiff) had
completely j^erformcd his part until he had procured
the apijointment of a guardian ad litem for the
above purpose. This was not done prior to the 25th
October, 1899. Consequently the mortgagee was
entitled under the mortgage to the interest for the
year commencing on that daj-. P.xjNDURAxr, Babu
Parab v. Mahadazi I\Ioreshvar Cokuale (1902)
I. li, R. 27 Bom. 23

232. Subsequent loan — S'«/e of

equity of redemption — Further loan secured on same
property after the sole— Purchaser of equity of redemp-
tion not bound to discharge subsequent loan before he
can redeem— Transfer of Property Act {IV of 1SS2),
s. SO. A mortgagor who has sold the equity
of redemption in property mortgaged by him can-
not afterwards charge such property wi'th a further
debt so as to render the purchaser of the equity of
redemption liable to pay such debt before he'^can
redeem. Allu Khan v. 'Posha7i. Khan. I. L. B. 4
All. S5, distinguished. Ejiaowan Das i: Sham
Das (1901) . . I. L. R. 23 Ail. 429

233.

Purchase from heir dur-

ing administration suit — Biial mortgagees —
Priority of title — Purchaser from Becciver ih ndynin-
istration suit — Purchaser (it sales in execution of
mortgage decree — Transfer to bcnamidar, pendente
lite— Transfer of Property Act (IV of 1SS2), So. oC,
,'i3. A\'hen the estate of a deceased person is under
administration by the Court or out of Court, a
purchaser from a residuary legatee or heir buys
subject to any disposition, which has been or
may be made of the deceased's estate in due course
of administration : the right of the residuary legatee
or heir being only to share in the ultimate residue,
which may remain for final distribution after all the
liabilities of the estate, including the expenses of
administration, have been satisfied. As between
the appellant and respondent, who were rival
mortgagees of the property of a .Aluhammadan
family, the Judicial Committee, reversing the deci-
sion of the High Court, upheld the title of the
appellant, who represented a purchaser at sales by
the Receiver of the High Court in a suit for admin-
istration of the estate of one of the mortgagors,
as entitled to priority over that of the respondent,
who claimed through a purchaser in execution of the

( 8599 )

DIGEST OF CASES.

( 8600 )

MORTGAGE— co7itd.

8. REDEMPTIOF— co«W.

ig) Miscellaneous — contd.

mortaage decree at sales, which took place pending
the administration suit, in one case after the order
for sale by the Conrt and in another after the actual
sale by the Receiver in that suit. The shares of
all the heirs to the mortgagor's estate were pend-
ing the suit for administration, purchased at private
sales by the appellant in the name of, and were
transferred to, a benamidar, who was made a party
defendant in the appellant's mortgage suit and a
party plaintiff in the administration suit. Held,
that the appellant being, in execution of the decree
in the mortgage suit, alone represented on each side
of the record, could not rely on the sale effected in
such circumstances in support of his title, or derive
any advantage therefrom Held, also [without
deciding whether such transfers could be avoided
under s. 52 or 53 of the Transfer of Property Act
(IV of 1882) in a properly constituted suit], that
the appellant must be treated as the transferee for
value of the entire equity of redemption, and that
the respondent, therefore, had not made out any
title to redeem the appellant's mortgage, notwith-
standing the subsequent sale in his m .rtgasie suit
under which lie claimed. Chatterput Singh t;.
MAHARA.J Bahadur (1905) . I. L. R. 32 Cale. 198

234. Decree for redemption

obtained before the mutiny — Posses.sion of
jyroperty remained u-ith mortgagee, with ivhom it
was settled and settlement confirmed by sanad —
Effect of mutiny in Oudli — Payment of mortgage
money — Delivery of 'possession decayed hy notice
of apreal hy mortgagee — Limitation of Suits
Act (XIII of 1866]— Oudk Estates Act (I of
1869), s. 6 — Exclusion of mortgages from sanads —
Subsequent suit for redemption — Civil Procedure
Code, ,95. 13 and 2ii. A usufructuary mortgage
was executed in 1S5I by the predecessor in
title of the appellant in favour of the pre-
decessor in title of the respondents, and in, a
suit for redemption of the mortgage the former
had, shortly after the annexation oi Oudh, obtained
a decree allowing redemption on payment of the
principal money only without interest. Accordingly
he paid the money into the Government treasury^in
April 1857, but did not get possession of the pro-
perty as the mortgagee had given notice of appeal,
on the question of interest, and in the mutiny which
then took p!ace the treasury was looted, so that the
mortgagee never received the mortgage money. • On
the restoration of order the Government declined
either to refund to the mortgagor the amount of his
deposit in the treasury, or toehold themselves re-
sponsible for the payment of it to the mortgagee. At
the second summary settlement the mortgaged
property was settled with the mortgagee and his
taluqdari rights were confirmed by sanad, and that
was made the ground for the i ejection of pet tions
by the mortgagor for possession of the property and
tor the dismissal of another suit brought by him for
redemption in 1862. That obstacle was only re- I

MORTGAGE— cow?fZ.

8. REDEMPTION— co7icZ(Z.

(g) Miscellaneous — concld.

moved by the passing of Acts XIII of 1S6G and I of
1869, s. 6 of which latter Act provided, as to lands
which were in the possession of mortgagees at the
time of the mutiny, that a sanad should not bar a
suit for their redemption. The mortgagor having
died, leaving two sons, the elder son in 1869 brought
a suit to redeem the property, which was dismissed
on the ground that by the payment of the mortgage
money in April 1857 the mortgage lien had come to
an end, and there was nothing left 1 1 redeem. To
that suit his younger brother, the appellant, then a
minor, was not a party. The appellant attained
majority in 1879, and after coming to a partition
vdth. his brother, brought a suit in 1895 for redemp-
tion of the mortgaged property on payment of the
principal money and such interest as the Court
might award. The Subordinate Judge gave him a
decree for his share (jf the property, but this was set
aside by the appeal Courts and the suit was dis-
missed. Held by the Judicial Committee, that, on
account of the appeal by the mortgagee in 1857,
an order could not properly hare been made by the
Court putting the mortgagor into possession of the
mortgaged property, and he therefore was not en-
titled as of right to possession when the mutiny
broke cut ; that under the exceptional circum-
stances occasioned bj- the mutiny and rebellion in
Oudh, the decree obtained by the mortgagor in 1857
for redemption coidd not have been executed ; that
the suit brought in 1869 ought to have succeeded ;
that a new decree which could only be regidarly
made in a fresh suit was required to give effect to
the rights of the parties and do justice between them
and that the present suit had been wTongly held to
be barred by s. 244 of the Civil Procedure Cr.de
(Act XIV of 1882). Held, also, that the suit was
not barred by s. 13 of the Ci.de by the dismissal
of the suit brought m 1869, the appellant having
been a mmor at the time, and not having been pro-
perly represented in it. An intention that the suit
should be f> r the benefit of the minor, which was
the most the evidence amounted to, was not suffi-
cient to support the plea of res judicata, and the
fact that the suit was brought for the entire property
mortgaged proved nothmg. To maintain the plea
of res judicata it must appear from inspection of the
record that the person whose interest it is sought
to bind, was in some way a party to the suit.
Chaudhuri Ah-mad Baksh v. Seth Raghubab
Dayal(1905) . . . I. li. R. 28 All. 1

9. FORECLOSURE.
See Mortgage — Redemption.
(a) Right to Foreclosure.
1. Right in mortgage by con-
ditional sale. A mortgagee under an instrument
creating a conditional sale has the right to fore-
closure. The decisions of the Sudder Court that no
mortgagee could ever foreclose the mortgagor's

( 8601 )

DIGEST OF CASES,

( 8602 )

MORTGAGE— co?i?c?.

9. FORECLOSURE— co7ifc^.

(a) Right to Foreclosure — conid.

Vexkatchel-
2 Mad. 289

equity of redemption overruled

LAM PlLLAY V. TlRUMALA ChARY

2. Forfeiture of prior-
ity. The power of foreclosure is incidental to
a mortgage in the form of a conditional sale, and the
mortgagees by availing themselves of that power do
not forfeit the priority thej' possess. Bhiroogee
MiSSER V. OOLFUT Ali . . . 2 N. W. 311

3. Beng. Beg. XVII
of 1S06 — Agreemeiii of parties. Held, that a
conditional sale may, by agreement and acts of the
parties, become absolute without formal foreclosure
proceedings taken under Regulation XVII of ISO'-.
GooRDYAL V. HtXNSKooswER . 2 Agra 176

RuGHONATH Dass v. Raji Gopal . 5 N". W. 29

4. Title of purchaser

hi) conditional fale. The right of a purchaser
by conditional sale, who has duly taken pro-
ceedings under Regulation XVII of 1806, be-
comes absolute on the expiry of the year of grace,
and he is entitled to claim mesne profits from that
date wdthout bringing a suit for possession. Jeora-
KHTJ^" SiSGH V. HooKUM SiKGH . 3 Agra 358

5. Ben{j. Beg. XVII

of ISOC — Expiration of year of grace. On the
expiration of the year of grace allowed by Regu-
latian XVII of 1806, the ownership of the mortgaged
property vests absolutely in the mortgagee, even
though he may not have obtained a decree estab-
lishing or declaring his right. Klioob Chund v.
Leeki Dhur, 3 Agra 103 ; Jeorakhun Singh v.
Hookum Singh, 3 Agra 35S ; Suroop Chundcr Roii v.
Mohender Chunder Roy, 22 W. R. 539 ; and Lotf
Hossein v. Abdool Ali, S W. R. 476, followed.
Tawakkitl Rai v. Lachman Rai. Tawakkul Rai
V. Sheo Ghulam Rai . I. L R. 6 All. 344

6. — Right at expiration

of year of grace — Suit to confirm title. The title
of a mortgagee is not complete upon the expiry
of the year of grace allowed by the Regulation, but it
is necessaiy for him to bring a regular suit and
obtain a decree in order to confirm his title. Rai-
stTDDix Chowdhry v. Khoda Newaz Chowdhry

12 C. L R. 479

7. Agreement to

pay amount to co- ■sharer or in default to forfeit
share. Where certain arbitrators, summoned by
the revenue authorities under the Regulations, in-
vestigated ancestral debts, and ascertanied the
amounts to be contributed by the other co-sharers
to one who paid the revenue, and they, accepting
the award, promised to pay principal and interest
on a certain date ; and also further agreed that, if
they failed to pay on the specified day, their shares
should thenceforwaid become his absolute property :
— Held, that such an agreement amounted to a con-
ditional sale, and was liable to the incidents which
imder the Regulations attach to such sales, and the
suit for possession, without summary process of

MORTGAGE— con^rf.

9. FORECLOSURE— coM^cZ.

(a) RiG^T TO Foreclosxjre — conld.

foreclosure, was not maintainable. Ghosee Lai.i,

V. Gatn-d Lall .... 3 Agra 184

8' Bmg. Reg.

XXXIV of 1802 — Mahomf dan mortgagor. In 1832
a Mahomedan mortgaged certain land with p( sscs-
sion on condition that, if the money lent was not
repaid -n-ithin eight years, the land should be
enjoyed by the mortgagee after that period as if
Conveyed by sale. In 1883 a suit Wiis brought to
redeem. Held, that the title of the mortgagee be-
came absolute by \-irtue of the terms of the^contract
on default of payment within the time specified.
The obligation cast by Regulation XXXIV (if 1802
upon a m<irtgagee to account for profits docs n( t
prevent a mortgage by way of conditional sale from
becoming, after the period for redemption ha^
elapsed, an absolute sale where no account has been
rendered by the mortgagee. The rule laid do^\Ti in
Pattabhiraniier' s case, 13 Moo. I. A. 5''0, applies to
a mortgage executed by a Mahomedan. Malli-
KAEJxns'UDXJ V. Maixikaeju^tudu

I. L. R. 8 Mad. 185

Parol conditional

mortgage— Beng. Reg. XVII of jso6. K made
over to G, from whom he had borrowed certain
moneys, certain land, on the oral condition that if
such moneys were not repaid -within two or three
months, such land should become G-"s absolutely.
HeU, that, as there was no deed of conditional mort-
gage, the provisions of Regulation XVII of 1S06-
were not apphcable to G, and he became the owner
of such land after the expiry of three months from
the date on which it wa.s made over to liim, in con.-e-
quence of the amount of the loan not having been
repaid to him. Gobardha>» Das v. Gokal D\s

I. L. R. 2 All 633

■!"• ^ Mortgage in

English form. A mortgage in the English form
between Hindus (jf lands in the mofussil, outside
Calcutta, has always been treated by the Courts as
a m rtgage by conditional sale. Shcrno^ioyee
Dasi v. Srixath Das . I. L. R. 12 Calc. 614

11- - Beng. Reg. XVII

of 1806, s. 7— Foreclosure of equity of redemvtion
— '■ Stipulated period. " By a mortgage in* tlie
English form, tlie defendants conveyed lortain
property to the plaintiff, subject t . the proviso that,
in the event of the defendants paying t,. the plaintitl
the principal sum on the 4th tSeptemlx'i-. 1868, and
in the meantime pa\-ing interest on that sum' half
yearly, with annual rests, in case ..f default of such
payment, then the plaintiff should re-convev the
property. The defendants failed to pay interest;;
and on the 4th December, 1866, the plaintiff applied
to the Judge of Chittagung for foreclosure : there-
upon notice, under .s. n ot Regulation XVU of IsiMi,
was issued, and served on the defendants. On the
15th April. 1868. this suit was instituted by the
plaintiff for the establishment and confirmation of
absolute purchase, and to obtain possession of the

[ 8603 )

DIGEST OF CASES.

( 8604 )

MORTGAGE— cow<(?.

9. FORECLOSURE— coH/cZ.
{a) Right to Foreclosure — contd.
mortgaged premises. Held, that the suit was not
maintainable. Regulation XVII of 1806 applied t)
this mortgage ; and,\inder that Regulation, the mort-
gagee could not apply for foreclosure until the time
agreed upon for repayment by the mortgagor, —
that is, the "stipulated period" referred to in s. 7 ; —
and the mortgagor was entitled to one year's grace
from notification of the application for foreclosure
made after that date. Sakasibala Debi v. Nand
L.U.L Sein . . . . 5 B. L R. 389
s.c. Shoroshee Bala Dabee v. Nund Lal Sen
13 W. R. 364

12.

of 1S06,

Beng. Reg. XVII

-Conditional sale. An instrument of
conditional sale provided that the conditional
vendor should retain possession of the property to
which it related, paying interest on the principal
sum lent annually at twelve per cent., and should
repay the principal sum lent within seven years ;
■that (by the fourth clause thereof), in the event of
default of payment of interest in any year, the term
of seven years should be cancelled, and the condi-
tional sale should at once become absolute ; and that
(by the fifth clause thereof) in the event of the
principal sum lent not being repaid at the end of
■seven years, the conditional sale should become
absolute. Default ha-vang been made in the pay-
ment of interest annually as stipulated, the condi-
tional vendee, the term of seven years not ha\nng
expired, took proceedings to foreclose, in pursuance
of the condition c jntained in the f , ,nrth clause of the
deed, and the conditional sale was declared absolute.
The conditional vendee then sued for possession of
the property. Held, that the fifth clause of the deed
did not dispense -with the necessity of complying
with the provisions of s. 8 of Regulation XVII of
1806 and was compatible with them, and on or after
the expiry of the stipulated period application for
the foreclosure of the mortgage and rendering the
conditional sale absolute in the manner prescribed
by that Regulation might and Uiust be made ;
that the conditi ;n contained in the fourth clause of
the deed in eiiect defeated and violated the pr,)vi-
sions of that Regolation, and summarily converted
a conditional mto an abs jlute sale in disregard and
defiance thereof, and the foreclosure proceedings
taken by the conditional vendee before the expiry
ri the period stipulated for the repayment of the
principal sum lent were irregular, and the sale
coiild only be rendered conclusive in the manner
prescribed by that Regulation in pursuance of the
fifth clause of the deed ; and that accordingly such
suit was not maintamable. Imdad Husain v.
MAirau Lal . . . I. L. R. 3 All. 509

13.

of 1S06, s. S—Siipidated

Beng. Reg. XVII

feriod — Mortgage by
The term '' stipulated period," as

conditional sale.

used in s. 8 of Bengal Regulation XVII of 1806,
means the full term on the expiry of which the
■jnortgage-money is payable, notwithstanding that

MORTGAGE— ro«<<Z.

9. FORECLOSUR&-co?i<cZ.
(a) Right to Foreclosure — conld.
under the strict terms of the mortgage the mort-
gagee might be entitled to foreclose at an earlier
period. Sarasihala Debi v. Nand Lnl Sein, ■'> B. L.
R. 3S9, and Imdad Htisain v. Mannu Led, I. L. R. 3
All. 509, referred to. Kubra Bibi v. Wajid IChan
I. L. R. 16 All. 59

14. Beng. Reg. XVII

of ISO"', s. 8 — Mortgage by conditional sale — Mean-
ing of stipxdated periods-Petition for foreclosure
lyrematurely filed — Continuance of right to redeem
— Construction of clause accelercding j^^'^y^s**^-
Under s. 8 of Bengal Regulation XVII of 1806,
the right of the mortgagee by conditional sale
to petition for foreclosure does not arise until the
period stipulated in the proviso for redemption has
expired. That period is not affected or altered by a
contract in the deed of mortgage, making. Avithout
reference to redemption, the whole principal lent
become due upon failure to pay interest at a certain
time. In a mortgage by conditional sale in the
English form, the proviso for redemption was that,
on repayment of the principal lent, with interest
in three years from the date of the mortgage, the
land should be reconveyed to the mortgagor. The
deed also contained a covenant that, upon any de-
fault in payment of the interest half-yearly, the
whole principal and interest should become due.
Upon such default made the mortgagee filed hia
petition, under s. 8, for foreclosure, before the
three years had passed ; and payment not having
been made during the year of grace, the mortgagor' s
objection was disregarded by the Court, and the con-
ditional sale treated by the mortgage as having be-
come conclusive. Held, that the covenant accelerat-
ing, for other purposes, the time at which the princi-
pal should become due, making no provision for the
payment of the principal by the mortgagor in order
to prevent foreclosure, nor referring to the proviso
for redemption, could not be taken into account in
determining what was to be regarded as the "stipu-
lated period " which remained as stated in the pro-
viso. Thus the petition had been prematurely filed.
The 8th section of the Regulation had not been
called into operation, and the right to redeem
remained. Sarasihala Debi v. Nand Lal Sein, 5 B.
L. B. 389 : 13 W. R. 364, and Wooma Churn Chow-
dhry. V. Beharee Lcdl Mookerjec. 21 W. R- 274,
referred to and approved. Kishori Mohun Roy v.
Ganga Bahu Debi , I. L R. 23 Caic. 228
L. R. 23 I. A. 183

15. Rights of mortgagee— CTaitse

far recovery of mortgage-money before expiry of
term. M, a Hindu widow, executed a deed of
usufructuary mortgage in J's favour, the property
hypothecated being the separate property of
her husband in which she had only a life -interest.
On J applying for mutation of names, B objected
that he M-as in proprietary possession under a deed of
gift executed by M, and the cbjectioa was allowed.
In virtue of a clause in the deed of mortgage, that
in case any demand was made in respect of the rest

( S605 )

DIGEST OF CASES.

( 8600 )

MORTGAGE— co■>^^i

9. FORECLOSURE— conf(?.

{a) Right to Foreclosuee — contd.
of the property %nthin the mortgage term the morf
gagee was entitled to sue for the mortgage-money
notwithstanding the term had not expired, J sued to
recover the money by the sale of the hypothecated
property. B in addition to an objection to the
validity of the mortgage based on the deed of gift
pleaded that it was invalid as against him, .the next
reversioner, there being no legal necessity for the
alienation. The lower Appellate Court held that
the mortsrage was valid as against the deed of sift,
but invalid as against the reversioner. Qucere : \Yhe-
ther, on reference to that ruling, there was any such
danger or M-eakness in J's title so as to entitle him to
enforce the mortgage-debt before the expiiy of the
term. Bulaki Singh v. Jai Kishex Das

7 N. W. 203

16. Extension of term

of grace after notice of foreclosure. A mort-
gagee, under a conditional sale, caused notice of fore-
closure to be issued, and subsequently by an a.gree-
ment securing certain advantages to him he extend-
ed the term of grace. The terms of that agreement
not having been complied with, the mortgagee
was held to be entitled to revert to the foreclosure
proceedings before instituted. L.allDhtjr Rat ti.
Ganput Rae . . 1 K-. W. Ed. 1873, 81

17. Agreement be-
tween mortgagor and mortgagee — Breach by mort-
gagor— Right of mortgagee to fall back on tnort-
gage rights. The mortgagee of certain shares of
certain vi'lages applied for foreclosure under Regula-
tion XVII of 1806. While the year of grace was
running and shortly before its expiration, the mort-
gagor and the mortgagee came to a compromise in
the matter of the mortgage. It was agreed by the
mortgagor to transfer by sale to the mortgagee the
shares of three of the villages in lieu of the mort-
gage-money, and that he should not assert his rights
under s. 7 of Act XVIII of 1873, as ex-proprietor, to
retain the sir lands appertaining to such shares.
Hie mortgagee agreed to relinquish h's claim on the
remaining -hires arising out of the mortgage and the
foreclosure proceedings. It was further agreed that,
if the mortgagor asserted tbe right mentioned above,
the mortgagee should be entitled to assert his right
in respect of all the shares as a mortgagee who had
foreclosed. Tlie mortgagor subsequently, in breach
of h s agree i^eiit a serted his riglit under s. 7 of Act
XVIII of 1S73 to the sir lands appertaiiiing to the
shares transferred to the mortgagee. Thereupon the
mortgagee sued the mortgager for p.^ssession of all
the shares bv virtue of the foreclosure proceedings.
Held, following Lctl Dhw Eae v. Gimpiit Bar, 1 N.
W. Ed. 1S73, SI, that on the failure of the mort-
gagor to give effect to the compromise transaction
the mortgagee was entitled to fall back on his equi-
ties under his iiiortgage and the foreclosure proceed-
ings taken thereunder. Dhoxdha Rai v. Megho
R^i . . . . I. L. R. 4 All. 332

18. Compromise

during proceedings — Intention of parties. A mort-

MORTGAGE— ron/d.

9. FORECLOSURE— <;on<(7.
i'l) Right to Foreclosure — contd.

gage-debt not having been paid off at due date
notice of foreclosure was issued and served. During
the currency of the year of grace the parties came to
an arrangement and filed potitions in Court in the
foreclo>Tire proceedings, setting forth that part pay-
ment had been accepted and that the rest of the debt
would be paid -n-ith interest on the date of the expiry
of the j'car of grace, failing Avhich the sale should
become absolute. HeUl, that it was not the intention
of the parties to substitute a new contract for the
one under which the notice of forcclf)Sure issued or
that the proceedings should be allowed to tiro p.
Goonomonee Dossia v. Paubutty Dossia

10 W. R. 326

19. Usufructuary

mortgage — Position of mortgagee in possesfiion.
Where, in proceedings held beffire the issue of Circu-
lar Order of 22nd July 1813, a mortgagor had the
opportunity in a Court competent to decide the
matter, to contest, as against the mortgagee, all
questions of fact necessary to give a good and
absolute title to the mortgagees, and, though called
upon, did not show that the mortgage was a bad
one, but admitted that the mortgagees were not
paid off, and that an extension of the year of grace
had el ipsed without his performing any of the con-
ditions which would have saved the property from
being foreclosed, it was Jidd that, even if the pro-
ceedings did not possess the character of a regular
suit, they were sufficient in themselves to effect a
foreclosure, if such was their purpose. Where a
party, originally a mortgagee out of pos!;ession,
has been put into possession by the act and permis-
.sion of the mortgagors, he has really (inasmuch
as a parol contract is sufficient in this country
to pass immoveable property)' obtained a new title
altogether different from that which he possessed
before, and having its foundation in the act of the
parties themselves when they pat him into posses-
sion. Ruxjeet Xaraix Sixgh v. SnrREEFoox-
issa low. R. 478

20.

Agreement for

mortgagee and third

fresh consideration, between

person for release of property from vwrtg'igee —
Release not required to be in writing and registered.
The mortgagee of immoveable property under a
hypothecation btmd entered into an agreement
. with one who was nc)t a party to his nu>rtgage to
release part of the property from liability under his
mortgage. This agreement was not in writing and
registered. The mortgagee subsequently sought to
enforce the hjTiothecation against the whole of the
mortgaged property. Hild, that the agreement,
being a new contract for a fresh consideration
between persons who were not parties to the raort-
face, was not, as between the parties to the mort-
gage, a release which the law required to be in writing
and registered. HM, also, that the party to the
agreement with tlie mortgagee m glit have come
into Court as a plaintiff to inforce the .•^me. and
that it was equally competent for him to plead it in

( 8007 ),

DIGEST OF CASES.

( seos

MOKTGAGE— con/f7.

9. FORECLOSURE— co>!/f?.
(a) Right to Fokeclosure — contd.
avoidance of the mortgagee's claim to bring to sale
the property referred to therein. Nash v. Arm-
strong, 30 L. J. C. P. 2Sn, referred to. Gurdial
llxL V. Jauhri Mal . . I. L. R. 7 All. 820
21. - -Effect of foreclosure — Pur-
chaser from mortgarjor. Foreclosure proceedings
in the Supreme Court as to mofussil property,
to which a purchaser from the mortgagor is
net made a party, cannot affect that purchaser.
Erajaitath KuNDtr Chowbry v. Khilat Cht^xdra

Ghose 8 B. L R. 104

14 Moo. I. A. 144 : 16 W. R. P. C. 33
s.c. in Court below. Kheltjt Chunder Ghose
V. Tara Cha:sd Koosdoo Chowdhry

6 W. E. 269

Foreclosure, effect

of — Deed of conditional sale. Until foreclosure,
the vendee, under a bond of conditional sale, holds
the lands, the subject of the bond, only as secu-
rity for the money lent. Semhle : The effect of
foreclosure is to put an end to the original condi-
tional sale and to malve the property ab initio the
immoveable property of the person who advanced
the money. Sham Naraln Singh v. Roghoobur
Dyal . I. L. R. 3 Calc. 508 : 1 C. L. R. 343
23. Effect of fore-
closure— Sale for arrears of revenue — Fraud of
mortgagee — Act I of 1S45. The effect of a foreclo-
sure decree in the Supreme Court in a mortgage
suit between Hindus is equivalent to a decree
establishing proprietary right in the mofussil
Court?, in similar suits on the like instruments.
The mortgagee in possession and another having
sought to deprive the mortgagor of his title to
redeem by means of a secret purchase of the mort-
gaged estate between them, including the fraudu-
lent device of sale by auction for arrears of revenue,
such arrears being designedly incurred by the
mortgagee in possession, it was held that a suit
for redemption and for possession instituted
many years after the sale for arrears was not
barred by s. 24 of Act I of 1845. If a mortgagee
in possession fraudulently allows the Government'
revenue to fall into arrears with a view to the land
being put up for sale and his buying it in for himself,
and he does in fact become the purchaser of it at
the Government sale for arrears, such a purchase
will not defeat the equity of redemption. Nazir
Ali Kh.an v. Ojoodhyau.wi Kh.an

5 W. R. P. C. 83 : 10 Moo. I. A. 540

Usufructuary mortgage-

Profits 'paijing the interest — Suit by mortgagee to
recover mortgage-money after time for redemption.
Certain property was mortgaged for a term of
years, and possession given to the mortgagee.
The mortgagor covenanted in the mirtgage-deed
that be would redeem the property after the
term had expired, and that tlie mortgagee should
take the profits in lieu of interest until redemption.

MORTGAGE— cowir/.

9. FORECLOSURE— con<i.
(a) Right to Foreclosure — contd.
After the expiry of the term, the mortgagee sued to
recover the mortgage-money. Held, that the mort-
gage was security for the repayment of the mort-
gage-money after the terai had expired, and that
during the term the mortgagor could not redeem'
nor could the mortgagee recover his money, but
that, ^vhen the term had expired, either party could
bring the "transaction to a close. Gaxesh Kooer r.
Deedar Buksh . . . 5 K". W. 128

Dya Ram v. Jwala Nath . 5 IT. W. Ap. 2
25. Suit for possession — Cove-
nant to pay — Conditional sale — -Damages, measure
of — Costs. Two out of several co-sharers mort-
gaged as their own, by way of conditional sale,,
a portion of the joint family property. The mort-
gagee foreclosed, and then instituted a suit for pos-
session, which he withdrew with liberty to bring a
fresh suit. He afterwards brought a suit for pos-
session against the mortgagors and their co-sharers,
on the suggestion of the mortgagors that it would be
undefended. It was, however, defended by the co-
sharers, and the suit was dismissed. The mortgage-
deed contained no covenant to repay the money lent.
In an action for damages brouglit by the mortgagee
against his mortgagors : — Held, that the plaintiff was
entitled to recover the money lent and interest,
and the costs of the second suit. Bhugwan

AcHARJEE v. GoBIJTD SiHOO

I. L. R. 9 Calc. 234 : 11 C. L. R. 855

26. Partial foreclosure— Fore-

closure in respect of share of jnoperty. Wliere
several parties have an interest in a mortgage, it is
not competent for one of them to foreclose in re-
spect of his fractional share. A party suing for
possession of a share of mortgaged property (after its
release has been effected by an arrangement made
between the mortgagees and mortgagor) on the
ground that he had an interest in the mortgage
and in the funds advanced by the mortgagees, must
show that the mortgagor had notice of such interest.
Bhora Roy v. Arilack Roy . 10 W. R. 478
Joint

27.

mort-

gagors— Foreclosure of portion of property — Suit
for possession of portion of property after fore-
closure. Where the whole of a mortgage-debt was
due to the persons claiming under the mortgage
jointly and not severally, and a person entitled only
to one moiety of the debt foreclosed the mortgage
as to that moiety, and sued the different mort-
gagors for possession of a moiety of their interests
in the mortgaged property, in virtue of the mort-
gage . and foreclosure : — Held, that the foreclosure
was invalid and the suit was not maintainable.
Bishan Dial v. iMANNi Ram I. L. R. 1 All. 297

28. Foreclosure of

portion of joint property. Where a mortgage of an
estate is a joint one and there is no specification in it
that any individual share or portion of a share of
such estate is charged with the repayment of any
defined proportion of the mortgage-money, but the-

( 8609 )

DIGEST OF CASES.

MORTGAGE -confd.

9. FORECLOSURE— con<^^.
(a) Right to Fobeclosuke — co7itd.
whole estate is made responsible for the mortgage-
money, it is not competent for the mortgagee to
treat a sum paid by one of the mortgagors as made
OD such mortgagor's own account in respect of what
might be calculated as his reasonable share of the
joint debt and to release his share from further lia-
bility. Where therefore in the case of such a mort-
gage the mortgagee, in taking foreclosure proceed-
ings, exempted the person and share of the mort-
gagor so paying and proceeded only against the
other mortgagors, and the mortgage having been
foreclosed sued the other mortgagors for the posses-
sion of their shares of such estate: — Held, that, the
foreclosure proceedings being irregular, the suit
was not maintainable. Chandika Singh v. Phokar
Singh . . . . I. L. E. 2 All. 906

MORTGAGE

ltd.

29. ^ • Joint 7ncrtgage

by conditional sale of tivo villages — Sale of the
equity of redemption — Foreclosure in respect of one
village. B mortgaged by conditional sale two vil-
lages to L for a certain sum. He subsequently sold
one village to L and the other to S. L having fore-
closed the mortgage in respect of the village sold to
S for a proportionate amount of the mortgage-
money, sued S for possession of that village. Held,
that the suit was maintainable. Chandika Singh
V. Phokar Singh, I. L. E. 2 All. 900, distinguished.
BiSHESHAR Singh v. Laik Singh

I. li. R. 5 All. 257

30. '■ Purchaser of

share of mortgaged property. A mortgagee sold
part of the mortgaged property and then foreclosed,
his purchaser being no party to the foreclosure pro-
ceedings. The mortgagee and purchaser afterwards
sued for recovery of possession of the mortgaged
property after foreclosure. Held, that the purchaser
could maintain his suit, although he had not been
a party to the foreclosure proceedings for the re-
covery of the mortgaged property, which had been
purchased by him. The foreclosure conferred an
absolute title to the whole property mortgaged on
the mortgagee and anybody claiming under him.
Raj Chandra Fodder v. Manorama

3 B. L. R. Ap. 148 : 12 W. R. 353
31. Merger — Fore-
closure 'proceedings on the first of two mortgages of
the same property to the same mortgagee. On the
26th of March 1872 A mortgaged to B certain
properties for R 12,000. On the 9th of May 1872
A, to secure a further advance of R2-4,000 made to
him by B, executed a jecond mortgage to B of the
same and certain other property. On the 29th of
July 1873 B served A with notice to foreclose the
properties mortgaged by the first deed. On the
23rd March 1874 and before the expiration of the
year of grace, a portion of the properties subject to
both mortgages was sold at an auction-sale subject
to existing incumbrances, and C became the pur-
chaser. C thereupon, to protect the interests he had
■bought at the sale, purchased in the name of D, a

9. FORECLOSURE— co7i<<f.
(a) Right to Foreclosfbe — contd.
trustee, all the interest of B in both mortgages, and
after the expiration of the year of grace, filed, in the
name of himself and D, a suit to declare his absolute
right to the foreclosed properties, and afterwards
filed another suit against A for a money-decree on
the bond in tlie second mortgage. Held, that C ,
being owner of portion of the property subject to
both mortganres, and as such liable to contribute
proportionately to the payment of both, could not
foreclose the first mortgage, and then sue A for the
whole debt due upon the second. Qucere : Whether
it would be equitable for C to foreclose the first
mortgage ? Held, further, that the bringing of the
second suit had the effect of re-opening the foreclo-
sure proceedings, and that the Court could now make
a decree in the whole case. Kamprosonno Ghose
V. Kamini Soonduri Chowdhrain

I. L. R. 4 Calc. 475 : 3 C. L. R. 184

32. Second mort-
gage of the same property to the same person —
Foreclosure decree on the first mortgage — Second
suit on seco'nd mortgage — Practice — Foreclosure,
re-opening of. On the 8th August 1864 the defend-
ant B mortgaged certain property to the plaintiff B,
and on the 8th April 1873 he further mortgaged the
same to secure a further advance from the plaint-
iff. In 1877 the plaintiff brought a foreclosure suit
on the first mortgage and obtained the usual foreclo-
sure decree ; and the defendant having made default
in payment, his right in the property was foreclosed.
The plaintiff sued in 1882 on his second mortgage,
which fell due in 1878. The lower Courts allowed
hia claim. On appeal by the defendant to the High
Court : — Hehl, reversing the decree of the Court
below, that the plaintiff could not foreclose in 1877
so as to vest the property absolutely in himself with-
out tueating the entire mortgage-debt as satisfied.
The defendant might have pleaded in 1877 that the
plaintiff could not foreclose, unless he abandoned his
claim to be repaid the second advance when due.
His omission to do so could not deprive him of hia
right to insist that the foreclosure decree passed in
1878 either precluded the plaintiff from suing on
the second debt, or that the foreclosure should be

Bapu Ravji v. Ra.mji iSvARrpji

I. L. R. 11 Bom. 112

33. - Foreclosure of property in

two districts— Be?>?. Reg. XVII of isaii, .<. S
According to s. 8, Ri gulation XV'II vl ISUO. where
mortgage-property is situate in two districts, &b.
order of foreclosure relating to the whole property
may be obtained in the Court li either district.
Rasmonee Debea I'. Prankishen Das

7 W. R. P. C. 66

s.c. Ras Muni Dibiah v. Prax Kishen Das

4 Moo. I. A. 392

Prosonno Coomar Roy v. Karan Chcndee
Chattebjejb . • . • 5 C. L. R. 59&

34. Foreclosure of property

partly in Calcutta and partly in mofussil —

12 s

( 8«11 )

DIGEST OF CASES.

( 8fil2 )

MORTGAGE— row/r/.

t
9. FORECLOSURE— row/.rf. ;

(a) Right to Foreclosure — contd. j

r:ng. Beg. XVII of J SO". The High Court, in a j
suit for foreclosure of property partly in Calcutta [
and partly in the mofussil, has no power to follow the i
procedure prescribed by Regulation XVII of 1806, |
which relates to the foreclosure of property in the i
mofussil ; but it is bound to see that the defendant is i
not, by reason of the suit being brought in the
High Court, deprived of any substantial advantage
which he Wfiuld have had if the suit had been insti-
tuted in the mofussil Court. Bank of Hindustan,
China, and Japan v. Nundololl Sen

11 B. L. B. 301

Foreclosure of property

35.

situated partly in Oudh and partly in the
North-Western Provinces — Beng. Reg. XVII
of ISOf), s. S. Where a mortgage of land situated
partly in the district of Shahjahanpur in the North-
western Provinces and partly in the district of
Kheri in the province of Oudh was made by condi-
tional sale, and the mortgagee applied to the District
Court of Shahjahanpur to foreclose the mortgage
and render the conditional sale conclusive in respect
of the whole property, and that Court granted such
application : — Held, with reference to the ruling
of the Privy Council in Ras Muni. Dibiah v. Pran
Kishen Das, 4 Moo. I. A. o92, that, where mort-
gaged property is situated in two districts, an order
cif foreclosure relating to the whole property may be
obtained in th-^ Court of either district, that the
circumstance that Oudh was in some respects a dis-
tinct province from the North- Western Provinces did
not take the case out of the operation of that ruling,
inasmuch as Regulation XVTI of 1806 was in force
in Oudh as well as in the North-Western Provinces
at the time of the foreclosure proceedings. Surjan
Singh v. Jagan Nath Singh . I. L. R. 2 All. 313

36. - Mortgage by conditional

sale — Prior and puisne mortgagees — Payment by
puisne mortgagee, defendant in prior mortgagee's
suit for foreclosure, of amount due on the prior
mortgage — Application hi/ such puisne mortgagee for
an order absolute for foreclosure — Application refused
— Separate suit by 'puisne mortgagee for foreclosure
Transfer of Property Act [IV of 1SS2), s. 74— Civil
Procedure Code, s. 244. In July, 1889, one Fateh
Chand executed a mortgage by conditional sale
of a certain village in favour of Bansidhar and
Kunj Bihari Lai. In October, 1889, Fateh Chand
executed a second mortgage of the same village, also
by way of conditional sale, in favour of Bansidhar
and Anant Ram. In October, 1891, Anant Ram
transferred his interest in the second mortgage to
Gaya Prasad. In September, 1893, Bansidhar and
Kunj Bihar instituted, a suit for foreclosure of their
mortgage. To that suit Raj Kumar, the son of the
original mortgagor, and Gaya Prasad, were made
defendants. On the same date Gaya Prasad institu-
ted a suit for foreclosure under the puisne mortgage
of October 1889. On the 22nd December fore-
closure decrees were passed in both suits, and six
months' time was allowed for redemption. The

MORTGAGE— cow'rf.

9. FORECLOSURE— con<rf.
(«) Right to Foreclosure — contd.
time allowed for redemption was extended from time
to time, and ultimately, on the 3rd of January, 1896,
Gaya Prasad paid into Court the sum which was
due to the mortgagees on the mortgage of July, 1 889,
which sum was drawn out by the mortgagees.
Subsequently to this payment into Court, Gaya
Prasad applied to the Court in the suit on the prior
mortgage, and prayed that the right of the defend-
ant in that suit to redeem the m«jrtgaged property
might be extinguished and an order absolute for fore-
closure granted in the applicant's favour. This
application was refused on the ground that Gaya
Prasad was only entitled to bring a suit for fore-
closure, and "had not acquired the status of a
decree-holder," and that, while he was defendant, he
could not execute the decree as a decree-holder and
could not get a decree for absolute foreclosure.
There was no appeal from this order, but Gaya
Prasad submitted to it and brought a separate suit
for foreclosure. Held, that, under the above cir-
cumstances, no such separate suit for foreclosure
would lie. Kedar Nath v. Lalji Sahai, 1. L. R. 12
All. >il ; Oudh Behari Lai v. Nageshar Lai. I. L. R.
13 All. 27 S ; and Ajudhia P er shad v. Bald eo Singh,
I. L. R. 21 Calc. SlS, referred to. Bansidhar v.
Gaya Prasad (1901) . I. L. R. 24 All. 179

37.

Stay of proceedings — Fore-

closure decree — Transfer of Property Act {IV of
1SS2), ss. 86, S7. S. 87 of the Transfer of Pro-
perty Act does not allow the Court to postpone
the date of payment on the application of an out-
sider. The provision regarding the power of the
Court to postpone the date of payment relates to
matters as between the mortgagor and mortgagee.
That section docs not give inherent jurisdiction to a
Court to stay proceedings. Where the lower Court
declined to make absolute a preliminary decree for
foreclosure, upt)n the application of a third party
who sought in a separate suit to establish his right
to redeem the property mortgaged : Held, that the
lower Court had no jurisdiction to pass such an
order. Akshya Kumar Barori v. Surja Kumae
Chatterjee (1902) . . . 6 C. W. W". 654

38. Decree for foreclosure —

Mortgage-bond — Validity — Payment of part of con-
sideration. A mortgage-bond does not cease
to be enforceable merely because a part only of
the money mentioned in the bond has been ad-
vanced. When it was not shown that the mort-
gagor had cancelled the contract or had the
power to cancel it : Held, that the mortgagee
was entitled to a decree for foreclosure upon the
footing of the money actually advanced. Minakshi
Sundrum Pillai v. Ayyathorai, I. L. R. IS Mad.
136, distinguished. Bajrangi Sahai v. Udit
Narain Singh (1906) . 10 C. W. N. 932

39. Lis pendens — Transfer of Pro-
perty Act, ss. 52, 86 and 87 — Suit for foreclosure
— Suit not terminated until decree absolute. A

( 8013 )

DJGEST OF CASES.

( 8G14 )

MORTGAGE-

itfl

9. FORECLOSURE— co«7r/.
(a) Right to Foreclosube — condd. "^
suit for foreclosure of a mortgage is not termin-
ated until the passing of the decree absolute. A
purchase, therefore, of the mortgaged property made
after the passing < f the decree nisi, but befose such
decree is made absolute, is subject to the doctrine
of lis pendens. Higqins v. Shaw, 2 Dr. & War. 356,
Chunni Lai v. AhdiilAl! Khan, I. L. R. 23 All. 331
and Shivjiram Sahehrnm Manendi v. Woman
Narayan Joshi, I. L. R. 22 Bom. 939, followed.
Bellamy v. Sabine, 1 DeG. & J. ■'>''>';, referred, to.
Pabsotam Nabain v. Chheda Lal (1006)

I. L. R. 29 All. 76
40.^ Suit to set aside foreclosure

decree and order absolvite — Fraud — Suit for
foreclosure — Order absolute obtaineil before the expiry
of time by concealinq facts— Taking advantage of
mistake of Court — Maintainability. Where a suit
for foreclosure was compromised the mortgagee
agreeing to give the mortgagor 6 months' time to
pay up the amount found due, but the Court
by mistake passed a decree nisi allowing only
three months' time, and the mortgagee taking
advantage of the mistake and without draw-
ing the Court's attention to the terms of the
compromise petition obtained an order absolute
before the six months expired : Held, in a suit to
set aside the foreclosure decree and order absolute,
that the facts amounted to fraud on the part of the
mortgagee, and the decree should be set aside.
Baishnab Chaban Laha v. Basajsta KraAR
Pain (1908). . • - 13 C W. J\ . 300

(b) Demand and Notice of Fobeclosube.

41. Demand from mortgagor—

Beng. Reg. XVII of 1S06, s. S—FGreclo.^urc, Right
of. Under the terms of Regulation XVII of 1S06, a
demand from the mortgagor or his representative is
a condition precedent to the right to take foreclo-
sure proceedings. Gonesh Chunder Pal v.
Shodanund Surma . I. L. R. 12 Calc. 138

42, Demand for payment of

mortgage-debt— Power of a minor to take a
mortgage— Beng. Reg. XVII of ISOO, s. 8. A
conditional mortgagee applied for foreclosure omit-
tin" previously to diemand from the mortgagor pay-
ment of the mortgage-debt. On foreclosure of the ,
morttrage, he sued for possession of the mortgaged \
property. The lower Appellate Court dismissed the j
■suit on the cround that the foreclosure proceedmgs
were invalid and ineffective by reason of such
omission, and in so doing directed that the demand |
which the mortgaaee should make prior to a fresh i
application for foreclosure should be limited to a
certain amount. i/eW. that the foreclosure proceed-
ings were invalid and ineffective by reason of such
omission and the suit had been properly dismissed ; j
and that it was not competent for the lower Appel- ,
late Court to put any limitation on the amount to be
demanded bv the mortsasee prior to a fresh applica- j
tion for foreclosure. Behaei Lal t'. Ben i Lal ,

I. Xj. XV. o All, 4Uo

MORTGAGE— fcn^^.

9. FORECLOSURE— coH<<f.

I (6) Demand and Notice op Foreclosure — contd.

43 Beng. Reg. XVII

of 1806 s. 8. S. 8 of Regulation XVIII of 1806
contemplates a previous demand of payment of
the mortgage-money, and non-compliance therewith
is a kind of cause of action for commencing foreclo-
sure proceedings, and such demand must therefore
necessarily be made before the mortgagee has the
right of applying for foreclosure, and the omission to
make such demand vitiates the foreclosure jjroceed-
ings altogether. Behari Lal v. Beni Lal, I. L.
R. 3 All. "408, followed. Karan Singh v. Mohan

Lai I. L. R. 5 AU. 9

44. Notice of foreclosure — Issue

of notification — Beng. Reg. XVII of ISOO, ss. 7
atid 8. A mortgagee's " application " for fore-
closure, as the term is used in s 7, Regulation
XVII of 1S06, means the whole transaction contem-
plated in s. 8, ending A\ith the notification to the
mortgagor ; thus the year of grace for payment,
and the year necessary for completion of foreclosure
commence to run from the date of the notification .
By the '" date of the notification " is meant not the
date on which it is served on the mortgagor, nor the
date on which the purwannah or document of
notification is signed and sealed, but the date of its
issue by the Court. The purwannah is first issued
when it is handed to the peon for delivery. SuBOOP
Chunder Nag v. Bonomalee Pundit

9 W. R. lie

45.

Berig. Beg.

XVII of 1806 — Form of notification to mortgagor.
In order to obtain a decree for foreclosure against a
mortgagor, the purwannah to be issued by the Judge
under s. 8 of Regulation XVII of 1806 must
distinctly notify to the mortgagor that if he shall
not redeem the property mortgaged in the manner
provided for by the preceding section within one
year from the date of notification, the mortgage will
be finally foreclosed and the conditional sale will be-
come conclnsive. Bheekun Khan v. Bechun

Khan 3 N". W. 35

46. Otnis-ion to gire

mortgagor copy of application to foreclosure. A
mort2:a£;ee failing to fulfil one of the two conditions
prescribed by Regulation XVII of 1806, s. 8, i.e.,
furnishing the mortgagor or his legal represent-
ative witii a copy of his application to foreclose,
cannot be said to be in a position to foreclose.
Santee Ram Jana v. Modoo Mytee

20 W. R, 363

47.

Service of notice

— On whom to be served. The only person on whom
effectual service of notice of foreclosure can be made
is the person really interested in protecting the
estate. Kalee Koomab Dutt v. Pban Kishoreb
Chowdhratn . . . 22 W. R. 168

48. Right to notice

—Beng. Reg. XVII of 1806, s. 8— Purchaser of
equity of redemption. The purchaser of the equity
of redemption is not entitled to notice in a foreclo-

12 S 2

( 8615 )

DIGEST Oi^' CASES.

( 8616 )

MORTGAGE— cowfrf.

9. FORECLOSURE— ron^f?.
(b) Demand and Notice of Foreclosure — contd.
Bxire suit especially if the purchase has not been
made until after the institution of the suit. Goo-
BOOPEESAUD Janah V. Btpropeesaud Bereah

Marsh. 292 : 2 Hay 152

KuEMOFOOL V. BissESSTTE SiNGH . Marsh. 337

s.c. BissESSTjE Singh v. Ktjemofool

2 Hay 408

See KiSHEN Bulltjbh Mtthta v. Belasoo Com-

MUE 3 W. 11.230

Where, however, the Judges (Bayxey and Pheae,
J J.) differed, the former holding notice Avas not ne-
cessary.

See Bissonath Singh v. Brojonath Doss

6 W. R. 230

49.

Bight to notice

— Purchaser from mortgagor. A purchaser from
mortgagor, as one of his legal representatives, is
entitled to notice of foreclosure. Madhtjr Tha-
KOOE r. Jhoonuck Lall Doss . 12 W. R. 105

MiTTEEJEET SlNGH V. MOOKH LaLL SiNGH

25 W. R. 139

50.

Right to notice

— Purchaser f^om mortgagor — Legal representa-
tive—Beng. Beg. XI IV of 1806, -s. S. The pur-
chaser from a mortgagor is his legal representative ;
and when the mortgagee takes out foreclosure pro-
ceedings, the notice enjoined by s. 8, Regulation
XVII of 1806, must be served on such purchaser if
it is used after the sale ; fresh notice to the purchaser
would not be necessary if the sale took place after
notice to the mortgagor. Achumbit Misser v.
Lalla Nund Ram . . . 11 W. R. 544

51.

Bight to notice-

Transferees in possession. Transferees in possession
are entitled to notice of foreclosure. Taztjn Bibee
V. Shib Chxtndee Dhue . . 19 "W". R. 170

52. Assignee of mort-
gagor— Beng. Beg. XVII of 1806, s. 8 — Legal
representative. A purchaser of the rights and
interests of the mortgagor is a legal representative
within s. 8, Regulation XVII of 1806, and notice of
apiilication for foreclosure must be served on him.

GOLAJVI DUSTAGIB KhAN V. JOGAI SiNGH

1 B. Ii. R. S. W. 3 : 10 W. R. 86

53. Bight to notice —

Beng. Beg. XVII of 1800, s. 8— Conditional sale-
Purchaser — Second mortgagee — Legal representa-
tive. Where land which has been conditionally sold
is subsequently mortgaged, the second mortgagee,
being the mortgagor's " legal representative" with-
in the meaning of that term in s. 8 of Regulation
XVII of 1806, is entitled, on foreclosure proceedings
being taken by the conditional vendee, to the notice
required by that section, and cannot be deprived by
the conditional vendee of the possession of the land
notwithstanding foreclosure, where no such notice
has been given to him. Diegaj Singh v. Debi
Sqtuh . . I. Ii. R. 1 All. 499

MORTGAGE— cowirf.

9. FORECLOSURE— con<rf.
(6) Demand and Notice of Foreclosure — contd..

54.

Bight to notice

— "Legal representative" of mortgagor — Beng.
Bog. XVII of 1806, s. 8. The holder of a decree for
money does not, merely because he has attached land
j belonging to his judgment-debtor while it is subject
I to a conditional mortgage, become the " legal repre-
! sentative ' ' of the mortgagor within the meaning of
j s. 8 of Regulation XV'lT of 1806, and entitled to
notice of the foreclosure of such mortgage ; neither is
the holder of a prior lien on land which is condition-
ally mortgaged the ' ' legal representative ' ' of the
mortgagor and entitled to notice of foreclosure pro-
ceedings. Radhey Tewaei v. Bujha Mise

I. L. R. 3 All. 413

55. Bight to notice

— Purchaser of mortgagor's interest. Where a per-
son mortgages his property by deed of conditional
sale and afterwards the right, title, and interest of
the mortgagor is sold in execution of a money-decree-
previously obtained against him, the purchaser at
such sale is entitled to due notice of foreclosure pro-
ceedings instituted subsequently to the sale, but be-
fore the confirmation thereof. See Bhyrub Chunder
Bundopadhya v. Sovdamini Dabee, I. L. B. 2 Calc.
141. Rameswae Nath Singh v. Mewar Jugjeet-
Singh . . . I. L. R. 11 Calc. 341

56.

Bight to notice
Beg. XVII of

— Assignee of mortgagor — Beng.
1806, s. 8. Under s'. 8, Regulation XVII of
a mortgagee is bound to serve notice of foreclosure
upon the assignee of the mortgagor, whether such as-
signee be of the whole or a portion of the mortgaged
premises, and whether notice of the assignment has
been given to the mortgagee or not. Ganga Go-
bind Mandai. v. Bani Madhub Ghose

3 B. L. R. A. C. 172 : 11 W. R. 548

57.

Bight to notice
XVII of

— Assignee of mortgagor — Beng^
1806, s. 8. The assignee of a mortgagor, though
purchaser of only a portion of the mortgaged pro-
perty, is his ' ' legal representative ' ' within the
meaning of s. 8, Regulation XVII of 1806, and as
such entitled to notice of foreclosure. Sheo Golam
Singh v. Rameoop Singh

15 B. L. R. 34 note : 23 W. R. 2&

58. Bight to redeem

— Mokuraridar — Betig. Beg. XVII of 1806, s. 8.
The holder of a maurasi mokurari pottah under the
mortgagor is not a ' ' representative ' ' within the-
meaning of s. 8 of Regulation XVII of 1806, and is
therefore not entitled to notice of foreclosue under
that section. Lalla Doorga Pershad v. Lalla
Luchmun Sahoy, 17 W. B. 272, followed. Seipoti
Churn Dey v. Mohip Naeain Singh

I. Ii. R. 9 Calc. 643 : 13 C. L. R. 119

59.

Beng. Beg. XVII

of 1806. A second mortgagee under a mortgage-
bond is entitled to notice of foreclosure under

( 8617 )

DIGEST or CASKS.

( 8618 )

MOB/FGAGH—contd.

9. FORECLOSURE— cowidJ.

(6) Demand and Notice of Foreclosure — contd.
Regulation XVII of 1806. Nudyar Chand
'Chuckerbutty v. Roop Doss Banerjee

22 W. R. 475

60. Right to notice

— Second mortgagee — Prior foreclostire of a second
mortgage — Legal rejyresentaiive — Beng. Reg. XVII
of 1806, s. S. In the case of the prior fore-
■ closure of a subsequent mortgage, — Quoere : Whe-
ther the second mortgagee is the mortgagor's legal
representative for the purpose of the notice of
foreclosure under s. 8, Regulation XVII of 1806.
When the first mortgagee had no knowledge or
cognizance of the second mortgage, or of the fore-
closure proceedings taken under it, the second
mortgagee had no just ground of complaint that
the notice of foreclosure was served, not on him
but on the mortgagor. Kajlee Kishore Chatter-
JEE V. Taba Pershad Roy . . 4 W. R. 1

61. Right to notice

— Purchaser from mortgagee. Property in the
mofussil which had been mortgaged in 18G2 to C by
• a deed in the English form containing the usual
power of sale on default of payment, and again in
1864 to T by deed of conditional sale, was sold by G
under the power of sale and purchased by N. Pre-
viously to the sale, T had foreclosed. In a suit for
possession of the property brought by the widow of
T against iV and the mortgagor, it appeared that no
■notice of foreclosure had been served on N. Held,
that N was entitled to such notice by the fact of his
purchase, whether he had obtained possession or not,
and that no notice having been served upon him, the
suit was not maintainable against him. Bhajjoo-
-MUTTY Chowdrain V. Premchand Neogee

15 B. L. R. 28 : 28 W. R. 96

MoHUN Lall Sookul v. Goluck C'hunder Dutt
1 W. R. P. C. 19 : 10 Moo. I. A. 1

Sufficiency of

notice — Foreclosure of share of mortgaged jjroperty.
Two persons jointly held a mortgage, each having
•an equal share in it. The equity of redemption sub-
sequently became vested solely in one of these per-
sons. Held, that, under the circumstances, a notice
■of foreclosure confined to a one-half share only of
the mortgage (issued by the mortgagee, who had
no interest in the equity of redemption) was
sufficient, and that the foreclosure proceedings were
not bad, although they related only to a part and
not to the whole of the mortgaged property.

HtTNOOMANPERSAUD SaHOO V. K.iLEEI'ERSAUD

Sahoo . . . . W. R. 1864, 285

63. --- Sufficiency of

■notice — Effect of service of second notice of fore-
closure. Where the notice of foreclosure was duly
served on the mortgagor, no subsequent transfer of
the property, whether voluntary or involuntary,
<;ould atfect the validity of the notice, or impose on
ithe mortgagee any new obligation in the way of
'Causing a fresh notice to be served on the purchaser.
The notice having been duly served on the mort-

MOnTGAQH— contd.

9. FORECLOSURE— «ow<<?.
(b) Demand and Notice of Foreclosure — conid.
gagor, his right and interest were subsequently sold
in execution, and the mortgagee caused a second
notice to be served on the purchaser. The foreclo-
sure took place after the expiry of a year from the
first, but within a year from the date of second
notice. Held, under the circumstances of the case,
that, as the second notice was merely for greater
caution to bring to the knowledge of purchaser
that notice had already been issued, and did not
supersede the first notice, the foreclosure proceed-
ings were regular, and the suit for possession was
maintainable. Zemin Ali v. Hossein Ali

2 Agra, Pt. II, 187
64. Fresh notice —

Allowance of time by mortgagee beyond year of grace.
A mortgagee, having issued notice of foreclosure on
the mortgagor, allowed him six months' time in
which to redeem, shortly before the expiry of the
year of grace. The mortgagor died, and the mort-
gagee sued to recover the property. H(M, that
fresh notice of foreclosure on the legal representa-
tive of the mortgagor was not necessary, the
requirements of the law in the issue of the notice
and the expiry of the year of grace having been
complied with. Bazloor PvAHim v. Abdullah

2 B. L. R. S. N. 5 : 10 W. R. 359

65.

Extension of time
Where a mortgage

for payment — Fresh Notice.

becomes foreclosed and the mortgagee abstains from
enforcing his right and allows the mortgagor an
extension of time, it is not necessary that a fresh
notice should be served. Bruo Mohun Sutputty
V. Radha Mohun Dey . . 20 "W. R. 179

66. Serrice of notice

—Proof of service— Beng. Reg. XVII of IS06 —
Duty of Judge. Under Regulation XVII of 1806,
the Zillah Judge is judicially required to see it
proved before him that the notice of foreclosure has
been duly served, and to record a proceeding certify-
ing that the requirements of that Regulation have
been duly carried out, and also any elucidating facta
necessary to be recorded as occurring within the year
of grace. Abb.4.s Aly v. Nund Coomar Ghose

7 W. R. 123

67. Service of notice

—Proof of service— Beng. Reg. XVII of 1S06, s. S.
The provisions of s. 8 of Regulation XVII of 1806.
that a copy of the mortgagee's application to fore-
close is to be served with the Judge's purwannah
referred to in that section, are imperative and not
merely directory. Where the evidence fell short
of proof that a copy of such application was served
with the purwannah of the Judge : — Held that such
failure of proof was fatal to the plaintifi's suit to re-
cover possession of the mortgaged premises after
the expiration of the year of grace. When the
plaintiff's second mortgagees, who had foreclosed
their mortgagor's equity of redemption, sued for
possession of the mortgaged property, and alleged
that their mortgagor's equity of redemption had

( 8619 )

DIGL.Vr OF CASES.

( 8620 )

TiLOTiTGAGB—contd.

9. FORECLOSURE— con<c^.
(6) Demand and Notice of Foreci.ostjee — contd-
been finally foreclosed by the first mortgagee after
due proceedings and expiry of the year of grace
without redemption, and that they were therefore
entitled to absolute possession, and failed on the
ground that notice of foreclosure had not been
duly served ; — He'd, they were not entitled to a
decree as mortgagees for possession, subject to
their accounting to the mortgagors, that being relief
different from that prayed for in their plaint. Bank
OF Hindustan, China, and Japan v. Shoroshibala
Debee . . . I. L. B. 2 Calc. 311

68. Service of notice

—Proof of service— Beng. Beg. XVII of 1806,
s. 8. The notice of foreclosure under s. 8, Regula-
tion XVII of 1806, is not merely a preliminary
proceeding leading up to a judgment of foreclosure
to be subsequently pronounced in Court. It not
only fixes the date from which the period during
which the mortgagor is to retain the right to redeem
is to be computed, but it is of itself the operative
act in the foreclosure proceeding. The service of
the^ notice therefore should be evidenced by the
clearest proof, and should be in all cases, if not
personal, at least such as to leave no doubt in the
mind of the Court that the notice itself must have
reached the hands or come to the laiowledge of the
mortgagors. EusuF Ali v. Aztjmtgonissa

W. R. 1864, 49

69. — Service of notice

— Proof of service. The regulation as to service
of a notice of foreclosure does not provide for any
mode of service in substitution for personal service,
though in some cases it has been held that personal
service is not absolutely necessary ; but to justify
resort to any other mode of service it must be shown
that in spite of efforts made for that purpose the
notice cannot for some reason be personally served.
A copy of the report of the Nazir of the Civil Court,
copies of the depositions of witnesses not taken in the
presence of the parties to the suit, and a copy of the
final foreclosure proceeding, are not legal evidence to
prove the service of a notice of foreclosure. Madho
Singh v. Mahtab Singh . . 3 N". W. 325

'0- — Service of notice

—-Mode of service. Where notice of foreclosure
issues, and the serving ofiScer iinds that the mort-
gagor is not at home, it is sufficient if he affixes the
notice on the door of the mortgagor's house, per-
sonal notice on the mortgagor not being essential.
SooRJoo Kant Bannerjee v. Kristo Kishore
Poddar . . . . 14 W. R. 423

"}' , 7 Service of notice

—Mode of service— Sufficiency of service— Beng
Beg. XVII of ISOo, s. 8. Where notice of foreclo-
sure was shown to have been served according to the
usual course of business in the Sheriff's office, the
Court presumed that a copy of the application had [
been duly served therewith ; but where it appeared |
that according to the practice of the High Court,
mention of the application would have been made I

MORTGAGE -ccw«r/.

9. FORECLOSURE— cor!((/.
(b) Demand and Notice of Foreclosure — contd.
in the order if it had accompanied the notice, and
no such n^ention was made, the Court refused to
make such presumption. Denonath Gangooly v.
Nursing Proshad Dass . 14 B. L. R. 87
22 W. R. 90

72.

Service of noticr

— Mode of service — Beng. Peg. XVII of 180t' —
Minor. Regulation XVII of 1806 giving no special
direction as to the person on whom notice of fore-
closure is to be served, when the person for the time
being entitled to the equity of redemption is a minor
and no guardian of such minor has been appointed
under Act XL of 1858, service of such notice of
foreclosure upon the minor and his mother will
be deen^ed sufficient service. Dabee Pershad v.
Man Khan . . . . 2 N". W. 444

73. Service of notice

— Sufficiency of service — Beng. Beg. XVII of 1806
— Bepresentative. The order of foreclosure having
been served on the widow of the det eased mortgagor
who had a life-interest, and also was the guardian of
the minor adopted son and legal representative of
the deceased, the service was /.eld to be sufficient.
Rasmonee Debia v. Pran Kisssen Das

7 W. R. P. C. 66

s.c. Ras Muni Diblah v. Prankishen Das

4 Moo. I. A. 392

74. _ Service of notice

— Sufficiency of service. It cannot be said that, if
a notice of foreclosure addressed to a deceased mort-
gagor has reached the hands of his representatives
they have not had the notice nor that they were-
debarred from paying or were not required to pay
the amount of the mortgage upon receiving that
notice. Ram Chunder Halder v. Jonab Ali
Khan 17 W. R. 230

75. Service of notice

—Sufficiency of service. Where the defendant
denied having received notice (f foreclosure, and the
witnesses called to prove service denied all know-
ledge of the matter : — Held, that the report of the-
peon in the formal proceedings before another
Court was inadmissible as evidence in the case,,
and the acquiescence of one mortgagor was not
binding on the other. Transferees in possession
are entitled to have notice of foreclousre. Tazun
BiBEE v. Shib Chunder Dhur . 19 W. R. 170

76. Service of notice

— Proof of service — Suit by conditional vendee for
possession. Where in a suit by a conditional vendee
for possession after foreclosure service of notice
is denied by the mortgagor or his representative, it is
incumbent on the former to prove such service inde-
pendently of the copy of the foreclosure proceed-
ing. SooK mun v. Choorajlan . 1 Agra 172

77. Service of notice

— Fresh notice, necessity of — Purchase from mort-
gagor after notice served. Where the mortgagor
sells his equity of redemption after foreclosure
proceedings had been applied for and notices duly

( 8tJ21 )

DIGEST OF CASES.

8022 )

MORTGAGE— cow<rf.

9. FORECLOSURE— con^f/.
(b) Demand and Notice of Foreclosure — co7itd.

served on him, it is not necessary for the mortgagee
to issue fresh notice on the purchaser ; the require-
ments of the Regulation are satisfied by the service
of the notice on the person who at the time of service
is entitled to redeem. Jyram Gir v. Krishan
KiSHORE Chttnd ... 3 Agra 307

78. Service of notice —

Proof of service — Beng. Beg. XVII of ISO'i, s. S.
The condition of foreclosure required by s. 8.
Regulation XVII of 1806, is that the mortgagor
should be furnished with a copy of the petition re-
ferred to in the section, and should have a notifica-
tion from the Judge in order that he may, within a
year from the time of such notice, redeem the pro-
perty. In an action brought to recover possession
as upon a foreclosure, it is essential for the plaintiff
to satisfy the Court that the above condition has
been complied with. In such a case, the service of
the notice must be established by evidence. The
mere return of the Nazir on the back of the Judge's
purwannah to the effect that the mortgagor had been
duly served, is not legal evidence of service. The
functions of the Judge under s. 8 are merely minis-
terial. The year during which the mortgagor may
redeem, runs, not from the date of the purwannah
or the issuing of it by the Judge, but from the
time of service. Where there are several mortga-
gors, and it is not sought to foreclose the individual
shares of each as against each but to foreclose the
whole estate as upon one mortgage, one debt, and
one entire right against all, service of the notice
upon some only of the mortgagors is uisuflicient
to warrant the foreclosure of the whole estate or
of any part of it. Quare: \Ahet'ier there may not
be cases of mortgages of separate shares, in which
by proceedings properly framed foreclosure may
take place in respect of some of such shares only.
The mortgagee, when he seeks to foreclose, must
discover and serve notice on those who are the then
owners of the estate. Nokender Nakain Singh v.
Dwarkalal Mundur . I. li. R. 3 Calc. 397
1 C. L. R. 369 : L. R. 5 I. A. 18

79. Sufficiency of

notice — Beg. XVII of 1S06, s. S — Sfrvice of copy
of petition and of 'puricannah. The provisions of s. 8
of Regulation XVII of 1806 are not merely directory
but imperative, prescribing conditions precedent to
the right of the mortgagee to enforce forfeiture of
the estate of the mortgagor, and have for their object
the protection of mortgagors from fraud. The pre-
scribed procedure must be strictly followed. Noren-
der Narain Singh v. Dwarka Lai Mundur. L. B. 5 I.
[ A. IS: I. L. B. 3 Calc. 397, referred to and followed.
I Held, that, although the mortgagor at the hear-
! ing of the foreclosure suit in the Court of first in-
! stance had not insisted en the insufficiency of the
notification of the mortgagee's application to fi.re-
I close, but had relied on another defence, this could
I not be construed as a binding admission that notico
I had been duly given ; that service of the copy
I of petition for foreclosuie, and of the purwannah

MORTGAGE— <o«frf.

9. FORECLOSURE— comR

(b) Demand and Notice of Foreclosure — contd.
signed by the Judge, was essential ; and that the
mortgagor was not precluded from questioning the
regularity of the proceedings in his subsequent
appeal. Madhoper-sad v. Gajadhar

I. L. R. 11 Calc. Ill : L. R. 11 I. A. 186

80.

Beng. Beg.

XVII of 1806, s. 8-r-Procedure — Mortgage by con-
ditional sale — Demand of payment — Purwannah —
''^ Official signature.^'' In proceedings for foreclo-
sureof a mortgageunder Bengal Regulation XVII of
1806, it is not necessary that the fact that a
demand for payment was made before the petition
for foreclosure was presented should appear on the
face of the proceedings ; it Is sufficient if the plaint-
iff in his suit for possession shows that the demand
was so made. A purwannah issued under the
provisions of s. 8 of the abovementioned Regulation
is not signed as required by tliat section with the
" official signature " of the Judge when it bears
merely the initials of that officer. Madho Per ■shad
V. Gajadhar, I. L. B. 11 Cak. 111. referred to.
KuBBA BiBi V. Wajid Khan . I. L. R. 16 All. 59

Sufficiency of

notice — Mortgage by conditional sale — Suit for
possession, of mortgaged jyroperty — Beng. Beg.
XVII of 1S06, s. S— Conditions precedent— De-
mand for payment of mortgage-money — Proof of
service of notice — Proof of notice being signed by
the Judge — Proof of forwarding copy of applica-
tion with notice — Transfer of Property Act (IV
of 1SS2). The provisions as to the procedure to be
followed in taking foreclosure proceedings under
Regulation XVII of 1806 are not merely directory,
but strict satisfaction of the prescribed conditions
therein laid down precedes the right of the condi-
tional vendee to claim the forfeiture of the condi-
tional vendor's right, and the various requirements
of that section have to be strictly observed in order
to entitle a mortgagee to come into Court, and upon
the basis of the observance of those requirements, to
assert an absolute title to the property of the mort-
gagor. Norender Naraiji Singh v. Dinirka Loll
Mundur, I. L. B. 3 Calc. 397, and Madho Pershad
V. Gajadhar, I. L. B. 11 Calc. Ill, followed. In
a suit for possession of immoveable proixrty by a
conditional vendee under a deed of conditional sale,
alleged to have been f>.ireclosed under Regulation
XVII of 1806, it appeared that, except a recital in
the application for foreclosure itself, there was no-
thing to show that any preliminary demand was ever
made upon the mortgagors for payment of the mort-
gage-debt ; that there was no proof of the " notice "
itself having been served upon the mortgagors which
it lay upon the plaintiff to establish : that there was
nothiiig to show that the notice which was issued
was signed by the Judge to whom the application
was made ; and that it was not proved that a copy of
the application was forwarded along with the notice
to the mortgagors, or that its terms were ever
brought to their knowledge. Held, applying to the
case the principles stated above, that the provision

( 8623 )

DIGEST OF CASES.

8624

MORTG A GE— con?(Z.

I MORTGAGE— cow<(i.

9. FORECLOSURE— con<(^.
(i) Demand and Notice of Fobeclostjre — conid.
of Regulation XVII of 1806 has not been satisfied,
and that the plaintiff had not fulfilled his obligation,
namely, to prove affirmatively that those provisions
were strictly followed. Held, also, that to treat the
suit as one instituted under the Transfer of Property
Act, and to allow the plaintiff to obtain such relief
as he would be entitled to by that Act, would be to
countenance an entire change in the nature and
character of the suit as it was originally instituted,
and that this was a course not sanctioned by the law.
SiTLA Bakhsh v. Lalta Prasad

I. Ii. R. 8 All. 388

82.

Sufficiency of

notice — Foreclosure proceedings under Beg. XVII
of 180S, and subsequent procedure under Transfer
of Property Act — Mortgage — Conditional sale —
Suit for possession on foreclosure — Beng. Beg.
XVII of 1S06, ss. 7, 8— Transfer of Property Act
(IV of 1882), ss. 2, cl. (c), and 86. The proce-
dure laid down in the Transfer of Property Act
may be applied to the case of foreclosure of a
mortgage executed before the Act came into
operation, provided it be so applied as not to
affect the rights saved by s. 2, cl. (c), of the Act.
^Vhere therefore under the provisions of Regula-
tion XVII of 1806 notice of foreclosure had been
served on a mortgagor by conditional sale, the
mortgage having been executed, and the foreclosure
proceedings taken before the Transfer of Property
Act came into force, and after the expiry of the year
of grace the money not having been paid, the mort-
gagee instituted a suit for possession on foreclosure,
and when such suit was defended by a third party
who had purchased the mortgaged property at an
execution-sale and obtained possession before the
commencement of the foreclosure proceedings and
the necessary notice had not been served upon
him : — Held, that it was competent to the Court to
apply the procedure prescribed by the Transfer of
Property Act and grant the mortgagee a decree in
the terms of s. 86, substituting the period of ' ' one
year" for the period of "six months" therein
mentioned. Gunga Sahai v. Kishen Sahai, I. L.
B. 6 All. 622, referred to. Pergash Koer v.
Mahabib Pebshad Narain Singh

I. L. R. 11 Cale. 582

83. Beg. XVII of

1806, s. 8 — Provision as to the year of grace — Ex-
tension of time by mutual agreement — Transfer of
Property Act, s. 2, cl. (c). The year of grace allowed
by 8. 8, Regulation XVII of 1806, is a matter
of procedure, which it was open to the parties to
extend by mutual agreement without prejudice
to the proceedings already had under the section,
and upon the expiration of such extended period
the mortgagee acquired an immediate right to
have a decree declaring the property to be his
absolutely. The right so acquired by the mort-
gagee while the Regulation was in force is a right
which falls within the meaning of cl. (c), s. 2 of the
Transfer of Property Act. Proceedings under s. 8

9. FORECLOSURE— con«(Z.
(6) Demand and Notice of Foreclosure — contd.
had come to a close by the expiration of the stipula-
ted period of extension while the Regulation was stOl
in force, and the mortgagee brought his suit for
possession in pursuance thereof after the passing
of the Transfer of Property Act. Held, that the
mortgagee was entitled to a decree such as he would
have had if the Regulation had been still in force.
Baij Nath Pershad Nabain Singh v. Moheswari
Pebshad Nabain Singh . I. L. R. 14 Cale. 451

84, Conditional sale

—Beg. XVII of 1806, s. 8— Transfer of Property
Act (IV of 1882), s. 2, cl. (c), and ss. 86, 87—
Procedure. A suit was brought on the 24th January
1885, by a mortgagee upon a mortgage by condition-
al sale asking for a declaration that the mortgagor's
right to redeem had been extinguished, and that
he was entitled to possession of the mortgaged pro-
perties. The mortgage was dated the 6th April
1881, and the mortgage -money was repayable on
the 13th May 1881. On the 9th July 1881 the
mortgagee caused a notice to be served on the
mortgagor in compliance with the provisions of ss.
7 and 8 of Regulation XVII of 1806. The year of
grace expired on the 10th July 1882. It was
contended by the mortgagor that, as the Transfer
of Property Act came into force on the 1st July 1882,
the proceedings taken by the mortgagee should be
regulated by the procedure laid down in ss. 85
and 87 of that Act, and not by the procedure
prescribed by Regulation XVII of 1806. Held,
that the procedure laid down by the Transfer of Pro-
perty Act could not be applied to the case. Al-
though the year of grace had not expired when that
Act came into force, and the full and complete right
of the mortgagee had not accrued, he had acquired
the right to bring a suit under the provisions of
Regulation XVII of 1806, at the expiration of the
year of grace, and the mortgagor was under a liabil-
ity to part with this property upon a suit being
brought at the expiration of that year, and such
right and liability came within the meaning of
these terms as used in cl. (c), s. 2 of the Transfer
of Property Act. Mohabib Pebshad Nabain
Singh v. Gungadhub Pebshad Nabain Singh

I. Ii. R. 14 Cale. 599

85.

Suit for fore-

XVII of 1806,

closure — Conditional sale — Beg.
s. 8— Transfer of Property Act (IV of 1882), s. 2—
General Clauses Consolidation Act (I of 1868), s. 6
— " Proceedings." In a suit for foreclosure under a
deed of conditional sale, where the due date of the
deed expired, and notice of foreclosure was served
whUe Regulation XVII of 1806 was in force, but
before the expiration of the year of grace that
Regulatim had been repealed by the Transfer of
Property Act : — Held, following Mohabir Pershad
Narain Singh v. Gungadhur Pershad Narain Singh,
I. L. B. It Cale. 59y, that proceedings for f')reclosure
having been commenced under the Regulation, those
proceedings were saved by s. 6 of the General Clauses
Consolidation Act (I of 1868). The ' ' Proceedings "

( 8625 )

DIC4EST OF CASKS.

( 8626 )

MORTGAGE— coKicZ.

9. VORECLOS\JRE^-contd.

(b) Demand and Notice]of Fokeclosttre — contd-
referred to in that section are not necessarily judicia'
proceedings only, but ministerial proceedings, as in
the present case, the service of notice of foreclosure.
Umesh Chunder Das v. Chttnchun Ojha

I. L. R. 15 Gale. 357

86.

Sufficiency of

notice — Mortgage by agent. Where a mortgage was
made by the lambardar for himself and as agent for
other sharers, it was held necessary to issue notice of
foreclosure both to the lambardar and his c:)-sharers.
PuNCHUM Singh v. Mungle Singh

2 Agra, Pt. II, 207

87. Omission to give

notice, effect of. Omission to give notice to the
mortgagor or his representative is sufficient to vitiate
the whole of the foreclosure proceedings. Khukroo
MiSRAiN V. Jhoomuck Lall Dass . 15 W. R. 26 3

88. Irregularity in

foreclosure proceedings — Beng. Reg. XVII of 1S06,
s. 8. The omission of the Court to send with a
notice of foreclosure a copy of the mortgagee's peti-
tion as required by s. 8, Regulation XVII of 1806,
was held to be not such an irregularity as made void
the foreclosure in a case where, subsequent to the
issue of the notice, the mortgagor continued to live in
the neighb lurho )d of the property, and the mortga-
gee erected buildings on it and used it as his own
with;)ut objection or claim on the part of the m')rt-
cagor. Saligram Tewaree v. Beharee Misser

W. R. 1864, 36

MORTGAGE— con/rf.

9. FORECLOSURE— co«cW.
(6) Demand and Notice of Foreclosure — concld.
not signed by Judge. Held, that, where the notice
of foreclosure under s. 8 of Regulation XVII of
1806 was signed not by the Judge, but (ji.ly by the
Munsarim, the foreclosure proceedings were void ab
initio. Held, also, that the notice which was upon
the record of the foreclosure proceedings and bore
the mortgagor's signature must be regarded as the
original notice in the matter ; and that the acknow-
ledgment of receipt of notice by the mortgagor did
not cure the inherent defect of its non-signature by
the Judge. Hanuman Saran Singh v. Bhairon
Singh . . . . I. L. R. 12 AIL 189

93.

Transfer of Pro-

perty Act (IV of 1882), s. 87 — Question arising as to
the order absolute for foreclosure — Notice. S. 87 of
the Transfer of Pr perty Act does not require
that any notice shuuld be given to the judgment-
debtor before the order absolute f r foreclosure is
made. Tara Pado Ghose v. Kamini Dassi (1901)
I. L. R. 29 Calc. 644

10. ACCOUNTS.

89.

of 1806, 8. 7 — Notice of foreclosure not signed by
Judge — Invalidity of foreclosure proceedings. A
■notice issued under Regulation XVII of 1806
which does not bear the signature of the District
Judge, but bears the seal of his Court only, is in-
formal and bad, and the foreclosure proceedings in
which such a notice has issued are invalid ab initio.
Basdeo Singh v. RIata Din Singh

I. L. R. 4 All. 276

90. Form of notice

— Omission to sign and seal by Judge. A notice of
foreclosure, bearing the seal of the Court issuing it,
but signed only by a Moonserim, is not a sufficient
compliance with the law, which requires that the
notice be given under the seal and official signature
of the Judge. Seith Hur Lall v. Manickpal

3 N". W. 176

1. Claim for account — Suit on

mortgage payable on demand. WTiere a mortgage -
debt is payable on demand, the mortgagee ought to
sue, not for interest only, but for an account and
payment of what remains due in the mortgage for
principal and interest up to the filing of the plaint.
Annapa v. Ganpati . . I. L. R. 5 Bom. 181

2. Suit for account — Suit by

-- Beng. Beg XVII I mortgagor — Redemption. Ordinarily, a suit for an

91.

Beng. Reg. XVII

■of 1806. A notice of foreclosure signed by the serish-
tadar of the Judge's Court and bearing the seal
of the Court, but not the signature of the Judge,
held, followmg the principle of the decision in
Basdeo Singh v. Mata Din, I. L. R. 4 All. 271), not
to be a valid notice under Regulation XVII of 1806,
B. 8. DoMA Sahu v. Nathai Khan

I. L. R. 13 Calc. 50

92. Sufficiency of

XVII of 1806, 8. 8— Notice

notice — Beng. Reg.

account upon a mortgage cannot be maintained by a
mortgagor unless he asks for re<lemption afs ).
Hari v. Lakshman I. L. R. 5 Bom. 614

See Shankarapa v. Danapa

I. li. R. 5 Bom. 604

3. Obligation to account —

Mortgagee in possession. Though a mortgage be
not an usufructuarj' mortgage, the mortgagee in
possession is bound to give an account of the profits
realized by him from the mortgaged property so long
as it was in his possession, whether he took possession
with ( r without the consent of the mortgagor. NiL-
kant Sein v. Jaenoodeen . . 7 W. R. 30

4. ■ Mode of taking account —

Beng. Reg. XV of l7</3, s. 10. Acco riling to s. 10,
Regulation XV .i 1793, it is the duty of the Court to
take an account of the receipts of the mortgagee in
possession, and then toa.ljust the mortgigi- ace .unt
of pruicipal and interest. SHrMBOONATU Roy f.
MoNOWAB Ali . . W. R. 1864, 109

5. Form of account — Mortgagee

in possession. A mortgagee in possession should
keep an account independent of the batwara
accounts;, which may be used as a tost of the accu-
racy of the accounts filed by the parties. The
mortgagee's account must be prepared by himself
or by his own agent, and must comprise the gross
receipta realized from the tenantry, and the account

( 8G27 )

DIGEST OF CASES.

( 8628

MORTGAGE— cow^'/.

10. ACCOUNTS— co«?(/.
must be full and complete. Ram Kissen Singh
V. KuNDUN Lall . . W. R. 1864, 177

6. Suit by second

mortgagee against mortgagor and third mortgagee.
In a suit by a second mortgagee against his mort-
gagor and a third mortgagee, asking for an account
and sale, the Court directed an account tn be taken,
not only of what was due to the plaintiff, but also
of what was due to the third mortgagee. Atthindro
Bhoosun Chatteejee v. Chunnoolall Johurky
I. L. R. 5 Cale. 101

7. Iiiability to account — Duty of

mortgagee of share of estate. It is the duty oJE
a mortgagee of a fractional share of an estate
held in joint tenancy to see that he receives out of
the estate all that the mortgagor ought to have
received ; not only that all assets are realized and
brought to account, but that the expenses are regu-
lated with care. Ali Reza v. Takasoondeeee

2 W. R. 150

8. Mortgagee in

constructive possession — Duty of mortgagee. Held,
that an usufructuary mortgagee in possession is
liable to account for the profits, whether such pos-
session be by himself or by his agent, and that the
suit should not be dismissed merely because the
mortgagee refused to give the account, but that the
Court should give proper directions for the mort-
gagee's account to be taken, charging the mortgagee
with the amoimt of the ordinary annual profits if
received by him or his agent, but not so charging
him if the profits were received by the Agent of the
mortgagor. Jaffree Begum v. Ujbee Begum

3 Agra 153

9. Waiver of right

to account by mortgagor — Usury laws, repeal of
— Contract as to profits of estate. A mortgagor
may give his usufructuary mortgagee the power to
sue him personally, or to sell the land, or both, at
any moment. Since the repeal of the usury laws a
mortgagor and mortgagee may make what contract
they please with reference to the profits of the
mortgaged estate, and the m<rtgagor may by
contract deprive himself of the right to compel
the mortgagee in possession to account for the
profits. MuNNoo Lal v. Reet Bhoobun Singh

6 W. R. 283

10. _ Usufructuary

mortgage — Redemption — Interest — Beng. Reg. XV
of 1793, ss. 3, J, 10, 11— Stat. 13 Geo. Ill, c. 63,
s. 30— Act XXVIII of 1S55, s. 7— Novation of
contract — Recital of mortgage. J, the usufructuary
mortgagee for R 1,250 of certain land, of one-
ninth of wliich he had purchased the equity of re-
demption in 1854, gave a usufructuary mortgage of
the land to N for R 2,700, of which H1.95U repre-
sented the mortgage-money of the land he held as
mortgagee, and R750 of the land he held as pro-
prietor. By the instrument of mortgage it was
provided that the mortgagee should take all the
profits in lieu c f interests, and the mortgage should

MORTGAGE— cowfrf.

10. ACCOUNTS— conici.
be redeemable on payment by the mortgagor of the
principal money. In 1880 F, the representative
of the original mortgagor in respect of eight-ninths
of the land, sued, with reference to Regulation XV
of 1793, for possession of the land, on the ground
that the mortgage had been redeemed, as the
principal money and interest at twelve per cent,
had been received out of the profits, and claimed
an account. N set up as a defence that the pro-
visions of that Regulation were not applicable, as
after its repeal by Act XXVIII of 1855, the mort-
gagor had agreed not to claim an account. This
agreement, he alleged, was contained in the wajib-
ui-urz-cf 1871. Held, that the wajib-id-urz did not
contain a new contract or ratification of the old con-
tract of 1854 between the parties, but merely a
recital of the mortgage, and therefore F was entitled
to an account. Held, also, that the account should
be calculated on eight-ninths only of the land.
Observations by Stuart, C.J., on Regulation XV
of 1793 and Stat. 13 Geo. Ill, c. 63. Shah Makhan
Lal V. Srikrishna Singh, 2 B. L. R. P. C. 44, and
Badriprasad v. Murlidhar, I. L. R. 2 All. 593, re-
ferred to. Mahtab Kuar v. Collector op
Shahjahanpur . . I. L. R. 5 All. 419

11.

Usufructuary
When a deed

mortgage — Reservation of huk aji
is essentially in the nature of a usufructuary mort-
gage, the reservation of huk ajiri, which was held
to be not in the nature of rent, to the proprietor,
and any other arrangement between him and his
lessee caimot alter the essential character of the
deed, nor relieve the mortgagee from the liability
of rendering an account. Hyder Buksh v.
HossEiN Buksh . . . 4 W. R. 103

See FuzLooL Ruhman v. Ali Kureem

5 W. R. 163

12. Right to an account— /Sm<

for redemption — Usufructuary mortgage. In a re-
demption under the old law, for the possession of
land, the subject of an usufructuary mortgage, the
plaintiff is entitled to an account, even though the
terms ( f the original agreement exempt the defend-
ant from his liability to an account, and although
the principal sum advanced is very small. Doorga
Dabee v. Issur Chunder Chatterjee

10 W. R. 367

PuNJUM Singh v. Ameena Khatoom 6 W. R. 6

13. Right of purchaser

far mortgagor to an account. The fact that a
purchaser of the equity of redemption received a.
certain sum for payment to the mirrtgagee di es not
preclude him from claiming from the mortgagee aa
account of the income of the mortgaged property.
Jafree Begum v. Gunga Ram . . 3 Agra 91

14. ^___ Right of mortgagor

to call on mortgagee to file account — Beng. Reg.
XV of 1793— Beng. Reg. I of 1798. A mortgagor
who has recovered possession of the mortgaged
property by the deposit of the principal sum lent
under Regulation 1 of 1798 is, in a suit subsequently

{

( 8629 )

DIGEST OF CASES.

( 8(530 )

M ORT G A GE — conid.

10. ACCOUNTS— co«Y</.
brought by him for the adjustment of accounts
during the period the mortgagee was in possession,
entitled to force the defendant to file his accounts
and swear to them according to thi- provisions of
Regulation XV of 1793. Tufuzzool Hossein v.
M.vHOMED HossEiN ... 2 Hay 17

15.

Beng.

Production of accounts —

XV of 1793, s. 11. Under s. 11 of

Regulation XV of 1793, a mortgagee in p<^ssession is
bound to produce the accounts of collection and dLs-
bursement, and to swear to them ; and a pli-a of ' ' no
assets ' ' will not exempt him from acting up to those
requirements. Bheechuck Sixgh v. Ltjtchmixa-
EAiN SixGH 1 Hay 182

16. Beng. Reg. I of

17 yS, s. 3. In a suit for foreclosure brought by
a mortgagee under a bye-bil-wafa, or conditional
bill of sale, it is not incumbent on the mortgagee to
produce his accounts ; the language of s. 3 < f Regu-
lation I <f 1798 pointing to an adjustment of
accounts in the event of accounting becoming neces-
sary, in which case the lender is to account.
Forbes v. Ameeroonissa Bioum

1 Ind. Jur. N. S. 117 : 5 W. B. P. C. 47
10 Moo. I. A. 340

17.

Objection to items in ac-

counts— Jarnabandi papers — Beiig. Beg. IX of
1833. A mortgagor is not precluded from question-
ing the correctness of the jamabandi annually filed
by the patwari in obedience to the provisions of
Regulation IX of 1833 by reason of his not having
brought the incorrect entries to the notice <:>f the
Collector at the time the papers were filed. Taig
Ali v. Golab Chowdhree . . 3 Agra 314

18. . Mode of filing accounts —

Conditional decree — Reconveyance, power of Court for.
In a suit for redemption of mortgaged pri pcrty it
was held (by Baylev, J.) that the law only requires
that the mortgagee's account cf receipts and dis-
bursements shall be made out, filed in Court, and
then sworn to as correct by the mortgagee. Held,
(by Phear, J.), that mortgagees are b( und to exhibit
the detailed items of all their actual receipts and
disbursements to the time of accounting, verified
by themselves and acc(jmpanied by all vouchers.
Held (by Bayley, J.), to be a rule < f law which had
flbeen followed in practice, and which this Court
Ti must follow, that no redemption can be decreed in
' such a suit as long as there is any balance found
due. Held (by Phear, J.), that plaintiff ought to
obtain a decree for reconveyance on payment of the
balance found to be due, with interest and costs of
suits within a time specified, and that the Court is
n-)t bound by the previous practice, but has power
to mould its decree in such a way as to meet the
exigencies of each case. Mokund Lall Sookul
V. GoLUK Chunder Dutt . . 9 W. R. 572

19 Nature and form of account

—Beng. Reg. I of 179S, s. 3— Estate ixipers. In
a suit for pcssessitm of mortgaged lands on the
allegation of satisfaction of mortgage from the

M O RT G A GE — cc ntd.

10. ACCOUNTS— CON/'/,
usufruct, the mortgagee is bound to furnish an ac-
count of the bond fide pr< ceeds of the estate while in
his pcssessicjn. Toujees, mehal melanee papers
jaidars, and jumma-wasil-baki papers are nr.t per se
such an account witbiii the- meaning of s. 3. Regu-
lation I of 1798, but may ccrrobcrate such account.
GoLTJCK Chunder Dutt i: MoHUN Lall Sookfl.
5 W. R. 271

Raxi Lochux Patpk i-. Kunhya Lall

6 W. R. 84

20. Beng. Reg. XV

of 1S93, s. 11. To enable a Ci urt to ascertain the
amount received by the mortgagee whilst in pi sses-
sion, the mortgagee she uld file his jama-wasil-baki
papers, and proceed generally in accordance with
s. 11, Regulation XV cf 1793. AiiEEROODDEEN v.
Ram Chund Sahoo . . . 5 W. R. 53

21. Proof of accounts— fien^-

Reg. XV of 1703, s. 11— Co-sharers— X at nrt of jyroof.
Mortgagees in actual possession sh< uld under
s. 11, Regulation XV of 1793, be examined as to
the t'ruth°of mortgage accounts, excluding persons
who, according t, the manners and customs of the
Country, are imable to appear in Court, c r others who
from ti.eir position are not hkely to be acquainted
with the actual state of facts. Where t ne cf the
co-shaiers has a competent knowledge of tl.e fact*,
his depj.-ition is suflicient to prove the truth of tl.e
accounts. Ram Phul Pasdey v. Wahed Ali
Khan 14 W. R. 66

22. - Interest on. sum

due— Beng. Reg. XV of 1,93, s. 10. The assignee
(f the mortgagor's rights in ceitain properties cf
which a zur-i-peshgi lease for twenty-f. ur years
ending in 1286 had been granted, sued for an account
and for pcssession on payment of what might be due
(if anythmg). No rate of interest was specified in
the zur-i-peshgi lease. Held, following the rule laid
duvni by the Privy Council in Shah 3lukhun Lall v.
Sreekishen Singh, 12 Moo. I. A. 157, that, under
s. 10 of Regulation XV < f 1793, the lessee was en-
titled to simple interest at 12 per cent. . n the money
found due. Held, further, that under s. 11 . f the
Regulation it was sufficient for the lessee to tender
accTiunts showing the collections and disbll^^ement3
and to swear to their correctness, and t! at it was
not necessary in the first instance for l.im to put in
the original ace. unts ( n which the accounts ten-
dered were prepared. Tasadck Hossain v. Beni

SlNGI

23.

13 C. li. R. 128

Decision on in-

sufficient proof. The Zillah Courts, in commg to a
conclusion as to the state of the mortgage accounts
having proceeded, not upon proof of the a -tual col-
lections which were or ought to have been made by
the m. rtgagees, but up. n materials which were m a
great measure speculative and conjectural, theic
decision was set aside. Mohcn Lall Sookool r-

GoLCcK Chunder Dutt ^ » i

1 W. R. P. C. 19 : 10 Moo. I. A. 1

24.

Onus of proof —

Income-tax lapers. Where the acccunts of a mort-

( 8631 )

DIGEST OF CASES.

( 8632 )

MORTGAGE— co^ifd.

10. ACCOUNTS— cowfeZ.

gagee who has been in possession are being taken, his
income-tax papers are inadmissible as evidence in his
favour, though they may be used against him. It
is the mortgagee's duty to keep regular accounts,
and the onus lies in the first instance upon him. If
he has not kept proper accounts the presumption
will be against him ; but this does not mean that all
statements of the mortgagor against him must
therefore be taken as true. Gholaji Ntjzuf v.
Emantjm . . . 9 W. R. 275

25. ■ Usufructuary

— Mortgagee in possession. As to the mode of
taking accounts when the defendaiit is mortgagee in
possession. Hunooman Peeshad Pandey v. Mun-

DRAJ KOONWEEEE

18 W. R. 81 note : 6 Moo. I. A. 393

27. Mortgagee in,

'possession. Mode of taking account when the mort-
gagee was in possession of the estates as mortgagee
^nd also as lessee under a lease. Hukooman Pee-
•SAUD Panday v. Mujteaj Kookweeee

6 Moo. I. A. 393
18 W. R. 81 note

28. Arrangement by

some of the mortgagors and the mortgagee. Wheve
■a mortgagee comes to an arrangement with three out
of five joint mortgagors by which he consents to take
as payment a muney-decree against three of them,
the amount oi the decree must, in taking an account
of what is due on the mortgage, be considered as a
■sum paid in reduction of the liability of the five.
Ram Kanth PvOY Chowdhey v. Kalee Mohttn
Mookerjee ... .22 W. R. 310

29. . Mortgage-debt

— Apportionment by mortgagors — Mortgagee's .ac-
quiescence— Liability according to shares. Mort-
gagor co-sharers having, after the mortgage transac-
tion, eSected division among themselves and appor-
tioned their Mability under the mortgage-debt ac-
cording to their shares with the acquiescence of the
mortgagee : — Held, that, though the mortgagee was
not bound to recognize the arrangement made by
the mortgagors among themselves still as he ap-
propriated the amounts paid by s. .me of the mort-
gagors in paying off their respective shares of the
mortgage-debt without there being a special direc-
tion to that effect from those mortgagors, he was

mortgage — Mesne profits. In the case of an usufruc-
tuary mortgage executed prior to Act XXVIII of
1855, where the mortgagor sues for redemption on
the ground that the usufruct had paid off the debt
and claims mesne profits on the allegation that the
mortgagee in possession has already collected more
than his legal dues, the mortgagee is bound to pro-
duce the accounts of actual collections made by him
during his possession. On the failure of the mcirt-
gagee in this respect, the mortgagor is expected to
adduce some procf to justify a decree in his favour
for redemption, as well as for mesne profits. Hashtjm
Ali v. Pvamdhaeeb Singh . . 7 W. R. 8?

Mode of taking accounts —

MORTQA GE— con^rf.

10. ACCOUNTS— co/i<(i.
entitled to recover the remainder of that debt from
the share of the mortgagor co-sharer by whom it was
due. Mahadaji Haei Limaye v. Ganpatshet
Dhondshet . . . I. li. R. 15 Bom. 257
30. Government re-
venue— Annual rests — Surplus receipts — Wrongful
payments by mortgagee — Transfer of Property Act,
IV of 1SS2, s. <6 (c) and (h). By the terms of an
usufructuary mortgage it was provided that the
annual profits of the mortgaged property should be
taken to be a certain amouiit ; that out of this
amount the revenue should be paid annually by the
mortgagee ; that the balance should be taken by the
mortgagee as representing interest on the principal
am' uiit of the mortgage-money ; and that the mort-
gage should be redeemed on payment of the princi-
pal of the mortgage-money in a lump sum. It was
fiu'ther provided that the mortgagor should nijt be
entitled to claim mesne profits, nor the mortgagee to
claim interest. J, — allegmg that he had purchased
the equity of redemption of the mortgaged property
in 1869 ; that since the purchase the mortgagee had
not paid any revenue, and therefore he, J, had been
compelled to pay it, and that consequently the mort-
gage-money had been paid out tif the profits of
the mortgaged property and a surplus was due, —
sued the original mortgagor and the mortgagee
for possession by redemption of the m< irtgaged pro-
perty and f i r surplus profits, or for possession of the
mortgaged property on payment of any sum which
might be found due. One of the defences t > the suit
was that the mortgage had already been redeemed in
1877 by the origmal m.>rtgagor, and the suit was
therefore not mamtainable. Held, (i) that, assuming
that such redemptiin had taken place, that fact
could not prejudice the plaintiff's rights arising out
of the mortgage, whatever the effect of such redemp-
tion might be as between the original mortgagor and
the mortgagee, and such redemption was therefore
not a bar t o the suit ; (ii) that the plaintiff was en-
titled to take into account the amount of revenue
which he had been compelled to pay by reason of the
mortgagee's default ; (iii) that in the accounting the
plaintiff was entitled to avail himself of annual
rests ; and (iv) that the mortgagee having had notice
of the plaintiff's purchase, any payments which he
might have made 1 1 the original mortgagor on ac
count of revenue after the purchase were improperly
made, and could not be taken int ^ account against
the plaiiitiff. Jaijit Rai v. Gobind Tiwari

I. Ii. R. 6 All. 303

31. Civil Procedure

Code, s. Ill — Transfer of Property Act (IV of
1S82), ss. 2, 76 — Set-off — Wa.ste by mortgagee in
possession — Po.ssession after date fixed for payment
— Interest. In a suit in 1888 to recover principal
and interest due on a usufructuary mortgage ex-
ecuted on 15th June 1870, which c )ntained a
covenant for repayment of the secured debt on 5th
June 1878, the defendant pleaded and pr.ived that
the mortgagee had permitted certain buildings on
the mortgage premises to fall into a ruinous condi-
tion, and it appeared that the mortgagee had

8633 )

DIGEST OF CASES.

( 8034 )

MORTGAGE— fOHfr?.

10. ACCOUNTS— co7!<r/.
remained in possession after June 1878 : — Held,
(i) that the defendant was entitled to have the
amount of the ]o.ss occasioned by the plaintiff's
failure to make repairs brought into the mortgage
account under the Transfer of Property Act, s. 76,
and a separate suit by him ior that amount was
not necessary ; (ii) that the profits derived by the
mortgagee after the date fixed for repayment
should be regarded as having been enjoyed in lieu
of interest. Shiva Devi v. Jartt Heggade

I. L. R. 15 Mad 290

32. Equity of re-

demftion — Charge created hy mortgagors — Power
of executors — Property subject to a trust. R died i
leaving a will, under which he gave certain legacies I
and left the remainder of his property to two sons, A
and P, whom he appointed executors. P died leav-
ing his brother A and his widows executors to his
will, under which his adopted sons, M and S,
became entitled to his property. In consequence
of some alleged mismanagement on the part of A,
M and S filed a bill in the late Supreme Court
and obtained a decree ordering the Master of the
Court to take an account of the rents and profit;
which had come into the hands of P\s executors.
While these accounts were being taken, .4 died,
leaving a will by which he appointed his widow and
his grandsons executors, and after certain devises,
not comprising a property in Tumlook, gave the
residue of his immoveable property to the said
grandsons, who took it subject to payment — (i) of
such of the legacies as remained unpaid under R's
will, and (li) of what might be due by A to P'.s
estate. After ^4'^^ death, the above suit in equity
was revived against his executors. The said
executors borrowed money from one Mackintosh on
the security of a bond and a mortgage of certain pro-
perty which he obtained (including the Tumlook pro-
perty) by an indenture, which recited that the said
executors were still accountable in respect of the
above legacies and debts, and provided that in the
event of any default, or of any sale by Mackintosh,
the said debts and legacies were to be paid out of the
proceeds in the first instance before either mortgage-
money, or interest, or costs, or expenses. After
this a decree in the above suit was made against
A's executors for lil,32,000, and this not being
paid, a writ of fieri facias was issued under which the
Sheriff sold to Al (benami) the equity of redemption
in the Tumlook property subject to Mackintosh's
mortgage. The latter then obtained a decree of
foreclosure and commenced another suit against
M which was compromised, and a decree made
by consent in favouj.- of Mackintosh, who then sold
his intere-t in the mortgaged property to J/. Under
these circumstances, M claimed the right of proving
the whole amount of the sum due to him in the
equity proceedings without taking into account the
Tumlook property ; on the other hand, the creditors
of A insisted that M was bound to treat the Tum-
look property as an asset of A's estate. Held,
that M was bound to hold the property on the
same terms as those on which he acquired it, viz..

MORTGAGE— con^/.

10. ACCOUNTS— cow<d.
that it was subject to a trust in his own favour
for the payment of his own debt. Manomatho
Nath Dey v. Greender Ch0nder Ghose

24 W. R. 366

33. Suit for posses-
sion of property mortgaged by zur-i-pesfuji — Form
of suit. Directions as to the nature of accounts to be
taken in a suit for possession of property the subject
of a zur-i-peshgi mortgage, and as to the form of suit
of such a case. Suyeedun v. Zuhoor Hdsseix

W. R. 1864, 44

34. Interest — Beng.

Reg. XV of 1793, s. 10 — Suit for redemption. Where
a mortgage-deed stipulates for interest at 9 per
cent., but other and collateral deeds, forming
part of the same transaction, provide for further
profits to the mortgagee : — Held, that the mortgagor
cannot, unless there be a positive legal enactment
to that effect, be heard to plead that the -wTitten
engagement, though not extending to the whole
profit stipulated, must be adhered to as against the
mortgagee, though the mortgagor may go beyond it
to show the full extent of the profit, and so to be
relieved from the consequences of Ids actual contract.
The mortgagee may retain hLs pledge until he has
received out of it his debt -with interest at 12 per
cent., the maximum allowed by s. 10 of Regulation
XV of 1793. In a suit tor redemption, on the
ground that the debt has been satisfied with
interest, the onus is on the plaintiff. A mortgagee is
not an assurer of the continuation of the same rate
of profit as his mortgagor was able to raise ; hence
an estimate of the rental preceding the mortgagor's
possession is not sufficient proof of the profits in
his time. The nature of the accounts which a
mortgagor may call for from the mortgagee, ex-
plamed. The mortgagee need not personally attest
the accounts, if he has no personal knowledge of
them. Presumptions against mortgagees for non-
production of accounts must have reasonable limits
and not be mere conjectures or based on in exact
data. Makhaxlal v. Skikrishna Singh

2 B. L. R. P. C. 44 : 11 W. R. P. C. 19
12 Moo. I. A. 157

35.

Suit for redemp-

tion against mortgagee in possession — Account — Evi-
dence. In a mortgage suit, where the defendant
admitted that he was in possession of the property
in dispute as a mortgagee under the plaintiff, but
refused to put in evidence the mortgage-deed, which
was insufficiently stamped ■• — Htld, that the plaintiff
was entitled to redeem, on paying what was due
fi-om him on the mortgage, together with the costs
of the suit ; and that, if the mortgagee refused to pay
the penalty and put the mortgage-deed in evidence,
he could only be crecUt<.Ki in the account with the
sum which the plaintiff admitted to be the amount
of the principal, and must be debited with the
income derived fi-om the land since he (mortgagee)
had been in possession. In taking the account of
a mortgage, it lies upon the mortgagee to prove

( 8635 )

DIGEST OF CASES.

( 8636 )

MORTGAGE— contd.

10. ACCOUNTS— foHfrf.
what is due from the mortgagor in respect of prin-
cipal and interest. Ganga Mflik v. Bayaji
^ I. L. R. 6 Bom. 669

Confiscation of

36.

38.

Mortgagee in pos-

session— Liability to account for profits, and to what
extent. A mortgagee in possession of the mortgaged
land, who, instead of letting it to raiyats and
realizing the rents in the ordinary way, cultivates it
himself, is not responsible or liable to account for the
whole of the profits arising to him by farmuig the
land, but only for such profits as he would have real-
ized had he let it to a tenant, or as the mortgagor
would have realized had he let it. Rughoonath
Roy v. Babatk Geereedhak.ee Singh

7 W. R. 244

39. Mortgagee's

charges — Mortgagee in possession, dtity of — Cul-
tivation. Held, that a mortgagee in possession of
land was bound to cultivate the best crop which it
was ordinarily capable of yielding. Gikjoji
Bhikaji Sonak v. Keshaveka Ravji Patil

Henge 2 Bom. 211

. 40. _ Suit for redemp-
tion of zur-i-pesJigi mortgage — Balance ivhich might
have been recovered by mortgagee. Under the terms
• of a zur-i-peshgi mortgage :—ZfeW, that the mort-

mortgagee's rights — Suit for redemption — Account.
A mortgagee's rights, being confiscated by Govern-
ment for rebellion, were given to defendants. Held,
on plaintiff's claim of redemption, that the defend-
ants must account for excess of profits over mterest
in the years when they were in possession. Ma-
homed Salamut Hossein v. Sookh Dayee

2 Agra 116

37, . Decree in ynort-

qaqe suit giving mortgagee possession in default
of paym'^nt of mortgage-debt — Relation between
mortgagor and mortgagee — Mortgagee in posses-
sion under decree — Decree for possession in mart-
qaqe suit, effect of. The plaintiff mortgaged certain
land to the defendant in 1864. In 1874 the de-
fendant (mortgagee) obtained a decree against the
plaintiff upon the mortgage, ordering the plaintiff to
pay the defendant the sum of R40 ; in default of
payment, the defendant (mortgagee) to take pos-
session of the land until the said sum should be paid.
In pursuance of the said decree, the defendant took
possession. The plaintiff brought the present suit
to redeem the said land, alleging that the amount
of the mortgage-debt had been fully liquidated out
of the surplus profits of the land. Held, that the
defendant (mortgagee) was not hable to account to
the plaintiff for such profits. Under the former de-
cree, the defendant was entitled to take possession,
and retain it with the attendant benefits until the
plaintiff should pay a definite sum which he had
never paid. The defendant held under the said de-
cree a complete title to the land until such payment
was made. Navlu v. Raghtj

I. L. R. 8 Bom. 303

MORTGAGE— con/rf.

10. ACCOUNTS— co/iifZ.

[ gagee was not entitled to demand the payment of
so much of the balances as had become irrecover-
able by reason of his own laches, but that he was
entitled to retain possession of the mortgaged estate
till the balances recoverable at the time of the

I commencement of the redemption suit were paid by
the mortgagor. PvAM Pershad v. Kishxa

! ' 3 Agra 146

41. Mortgagee's

charges — Obligation of mortgagee tn possession to
repair. A mortgagee in possession of mortgaged
premises is bound to keep them in necessary repair,
and is at liberty to charge for the same with interest.
Jogendronath MtTLLicK V. Raj Naraix Palooye

j 9 W. R. 489

I 42. Allowances to

mortgagee — Suit for redemption — Costs of repairs.
In a redemption suit a mortgagee is entitled to
credit for reasonable costs of repairs, if he renders
an account of rents and profits. Lakshmax
Bhisaji Sirsekar v. Hari Dinkar Desai

I. L. R. 4 Bom. 584

43. Allowances to

mortgagee — Conditional sale — Expense of repairs.

. In a suit brought to redeem certain property which
had been conveyed by the ancestors of the plaintiff

I to the ancestor of the defendant, it was held that the
deed of conditional sale amounted in effect to a

' mortgage of the property, and that, according to the

' Courts of Equity, a mortgagee in possession ought to
be allowed for proper and necessary repairs to the
estate. Where portion of the mortgaged premises

j was accidentally burned, and portion of them fell
down, and the mortgagee rebuilt them, it was held

i that the mortgagor was not entitled to redeem, un-
less upon payment of the sum so expended by the
mortgagee, though such sum amounted to more
than double the price for which the premises had
been conditionally sold to the mortgagee. Man-
charsha Ashpandiarji v. Kamruxissa Begam

5 Bom. A. C. 109

44.

Allowances i

mortgagee — Expenses of improvements and repairs.
Thou<Th a mortgagee without any agreement is not
allowed to charge the mortgagor with all sums which
he may think fit to expend in the repair or the im-
provement of the mortgaged property, whether such
expenditure be made by him voluntarily or in pursu-
ance of some official order which he was not legally
I bound to comply with, yet he may charge the mort-
gagor for necessary repairs, and the latter will also
be'^Iiable for any expenditure which he may him-
self have sanctioned. Ameeroollah u. Ram Doss
Doss . . . . . .2 Agra 197

Ragho Bagaji v.

45.

Anaji Manaji Patil

5 Bom. A. C. 116

Allowance for

Claims made by a mort-

improvements and pairs. .^ „ _

gagee in respect of money laid out in improvement
after the expiry of the day fixed for repayment must
depend on an equitable consideration of all the cir
cumstances of the case. The English rule should

( 8637 )

DIGEST OF CASKS

8638 )

MOETGAGE— ron/rf.

10. ACCOUNTS— con<d.
be adopted under which the mortgagee is only
allowed to claim for such outlay as has been required
in order to keep the mortgaged premises in a good
state of repair and to protect title. Ramji bin
TuKAKAM V. Chinto Sakh.'Vkam . 1 Bom. 199

46.

- Directions for
-Budding < a-nd

account — Mortgage in ]0"<cssion-
improvejnents, allowance for. The rule of Courts of
Equity iu England as to allowance to a mortgagee in
possession not applied, because the mortgagee was
led into a belief by the course of decisions in the late
Sudder Adawlut, and the general understanding
caused by those decisions, that, upon the non-pay-
ment by the mortgagor of the money at the tim-
fixed, he had, according to the terms of the mortgage
instrument, become the absolute OAvner of the pro-
perty. The mortgagee was allowed the benefit for
buildings erected, or permanent improvements made
by him upon the mortgage premises. Axaxdrav v.
Ravji 2 Bom. 214

47.

Costs of improve-

MORTGAGE— fo«/r/.

10. ACCOUNTS— ron^/.
December 1894 when there were on the land im-
provements in the form of trees, etc., to the value of
R 1,429. Within the six months limited by the
decree for redemption, the mortgagor applied for
execution, and it appeared that the value of im-
provements had diminished by the loss of trees of
the value of H 157. The loss was the result of want
of water and was not attributable to neglect on the
part of the mortgagee. Held, that the loss should
fall on the mortgagee. Kri.shxa Patter v.
Srinivasae Patter . I. L. R. 20 Mad. 124

ments on ■propertij — Transfer of Property Act (IV
of 1S82), s. 63 — Rigid of prior mortgagee to add
to the amount secured by his mortgage oitlay \
incurred by him in the preservation of the property |
mortgaged. A\Tiere a mortgagee of agricultural j
land had, with the consent of his mortgagors,
spent money in repairing a well on the property
which had been renclered useless from natural causes, ,
it was held that such mortgagee was entitled, in a |
suit by a subsequent mortgagee against him for
redemption, to add the amount so expended to the i
mortgage-debt to be paid by the plaintifE before he ]
could obtain the decree for redemption claimed by
him. DuRGA Singh v. Naurang Singh

I. L. R. 17 All. 282

48. Compound in- j

terest on money spent to protect property — Inter-
est on money expended on improvements on pro- \
perty. In a suit on a mortgage by conditional sale
the mortgagee was held to be not entitled to com-
pound interest upon the sum spent by him to protect
the subject of the security, nor to interest upon the
money expended by him in its improvement.
XiSHOBi MoHUN Roy v. Oanga Baku Debi

I. L. R. 23 Gale. 228
L. R. 22 I. A. 183

49. Bight of mort-
gagee in possession to execute repairs — Cost of
improvements on redemption — Transfer of Pro-
perty Act, s. 72. Transfer of Property Act, s. 72 (6),
does not permit a mortgagee in possession to effect
improvements. Consequently in a suit for redemp-
tion the costs of such improvements cannot be legally
charged against the mortgagor seeking to redeem.
Aeunachella Chetti v. Sithayi Ajdi-U,

I. L. R. 19 Mad. 327
50. Value of improve-
ments on redemption depreciation of, between
I decree and date of redemption. A decree for the
I redemption of a kanam in Malabar was passed in

51.

Purchase of mort-

gaged property by decree-holder for inadequate price
— Right of purchaser — Improvements, right to value
of, on redemption. A mortgaged land to B, and
then to C. B sued on his mortgage and obtained
a (iecree for sale without joining as defendant C, of
whose mortgage he had notice ; D, the son of the
decree-holder, became the purchaser in execution
and improved the land at a considerable cost. C
now sued the sons and representatives of A and B
(both deceased) on his mortgage, and sought a decree
for sale. Held, that the purchaser was not entitled
to allowances for improvements. Rangayya
Chettiab v. Parthasarathi Naickar

I. L. R. 20 Mad. 120

Account of re-

demption of a mortgage — Appropriation of pay-
ments— Set-off of rents and profits — Expenditure
on improvements — Interest — Transfer of Property
Act (IV of ISS2), s. 711— Lower Burma Courts Act (XI
of 1889), s. 4. That an account should have been
taken between mortgagor and mortgagee in p )s-
session consistently with the direction in s. 76 of the
Transfer of Pi-operty Act, 1882, is in accordance with
the " justice, eciuity, and good conscience '' required
to be administered by s. 4 of the Lower Burma Courts
Act, 1889. It made no difference, in the result of the
account, whether the rents and profits received by
the mortgagee in each year were set off year by year
against the amount expended bj- the mortgagor in
that year for improvement and management, or their
total was deducted at the end of possession fi-om the
sum expended by him. The balance of liis expendi-
ture had, in fact, exceeded in each jear that of his
receipts and carried only simple interest. The mort-
gage-debt decreed bore compound interest. Held.
that the account need not be taken on the principle
, that the mortgagee sho ild give credit for his re-
ceipts, first, in reduction of that debt, which was
i most burdensome to the debtor. There was no
'i obhgation to pay off the compound interest debt
before the other. Whether the improvements and
1 the expenditure were reasonable, were questions
i of fact on which two Courts hacl concurred ; and
there was no ground for interference with their
! finding. During the life of the mortgagee, his son
' managed the propertj-, living on it at a di^itance.
■ The account directed was of sums " laid out in
management." Salarj* to his manager was not
paid, and in the account could not be allowed, such
allowance not ha\iug been decreed. But the cost

( 8639 )

DIGEST OF CASES.

( 8(540 )

MORTG A GlE—contd.

10. ACCOUNTS— coH«(/.
of this manager's being separately maintained
during the father's life could be allowed. For
the period after the father's death, as the son
became mortgagee himself, such cost of maintenance
could not be allowed. Kadir Moidin v. Nepean
I. L. R. 26 Cale. 1
L. R 25 I. A. 241
2 C. W. ]Sr. 665
53. Suit for redemp-
tion— Mortgagee in possession. A mortgagee in pos-
session is liable to account for profits arising from
trees planted by himself on the mortgagor's land.
A mortgagee in personal possession is, in the ab-
sence of any special contract to the contrary,
chargeable with a fair occupation rent, in the case
of buildings personally occupied by him for the
purpose of residence or carrying on trade or busi-
ness ; and in the case of land personally occupied
or cultivated by him, either with a fair occupation
rent or with the actual net profits realized from the
use of the land. In ascertaining what those profits
are, mth which the mortgagee ought to be credited |
in reduction of his mortgage-debt with interest i
thereon, the mortgagee ought to be credited for his j
expenses in obtaining produce from the land and a |
moderate interest on the amount of such expenses, i
Principles laid down on which an account should be ;
taken from a mortgagee in possession. Prabhakab
Chintaman DiKSHiT V. Panduba^'g Vest ay ak '
DiKSHiT 12 Bom. 88 i

MORTGAGE— ccn^^.

10. ACCOUNTS— cow<i.
payable by mortgagor — Eight of mortgagee to tacit
amount so paid to mortgage-debt. Where a mort-
gagee in p 'ssession pays the assessment on the
mortgaged land which was payable by the mort-
gagor, he has a right to tack on the amount so paid to
his mortgage-debt. Kamaya Naik v. Devapa
Rttdba Naik . . I. L. R. 22 Bom. 440

58.

perty
pelled

— Transfer of Pro-
2 — Mortgagee corn-
revenue which should
Remedies of the

54.

Improvements

ight to — Fruit trees. The holder
it with

and accretions

of a field, on the survey tenure, mortg;
possession, secured by a registry of the mortgagee's
name as occupant. Certain fruit trees, coming
under the operation of No. 3 of the Revised Survey
Rules, were sold by the Government to the mort-
gagee as Occupant. Held, that the trees, by the sale,
became a portion of the mortgaged estate, and, as
such, were liable to red( mption, on payment of the
amount of the mortgage-money with interest, of the
money laid out in purchasing the trees, and of other
reasonable expenses. Bakshieam Gangabam v.
Darku Tukaeam ... 10 Bom. 369

55.

Village mort-

gaged without specifying boundaries — Accretions to
village — Rights of parties on redemption or fore-
closure. Where a village, without specification of
boundaries, is mortgaged as a whole, the mortgagee
is, on the one hand, entitled to it as a security with
any casual increase or decrease which may occur to
it, and is, on the other hand, subject to its redemp-
tion by the mortgagor to the same extent. Sada-
SHiv AisiAicT V. ViTHAL Anant 11 Bom. 32

Expenses of re-

venue survey. Held, that a mortgagee in possession
was entitled to be allowed for expenses incur-
red in connection with the revenue survey of the
land mortgaged to him. Bapusa bln Sadashiv v.
Ramji bis Gopalji . . . 2 Bom. 220

"' • Mortgagee in

possession — Payment by mortgagee of assessmerU

Act {IV of 1882),
to pay Government
have been paid by the mortgagor
mortgagor. Where a mortgagee has been compelled
to pay Government revenue which should have been
paid by the mortgagor, the mortgagee may either
add the amount which he has so been made to pay
to the amount of the mortgage-debt under s. 72 of
the Transfer of Property Act, 1882, or he may sue
the mortgagor separately to recover the amount so
paid. If, however, he has sued separately and
obtained a decree against his mortgagor, he cannot
then add the amount due to the mortgage-debt ; his
two remedies are not concurrent. Imdad Hasan
Khan v. Badbi Prasad . I. L. R. 20 All. 401

I 59. 3Iortgagee, ob-

; ligation of — Expenses incurred in protecting title
I — Stipulations not creating fresh obligations. Under
the ordinary law of mortgage, the mortgagor is
1 bound, so long as the equity of redemption remains
I with him, to indemnify the estate against expenses
I incurred in protecting the title. So that where a
I mortgage -bond contains stipulations under which
I the mortgagor engages to repay to the mortgagee
any costs he may incur in suits brought agamst him
' by the mortgagor's co -sharers, and also any debts
i charged upon the martgaged property which the
t mortgagee may pay, the stipulation do not create
I any fre.sh obligation. Dajmodab Gungadhab v.
j Vamanrav Lakshman . I. L. R. 9 Bom. 435
I 60. Right of pur-
chaser of equity of redemption to set off smns paid'
j in reduction of mortgage. The only payments which
I purchasers of the equity of redemption can claim to
' deduct from the mortgage-debt are sums actually-
received by the mortgagee in reduction thereof, not
money owed by the mortgagee to the mortgagor on
, some other account. Tabinee ICant Bhdttachab-
I JEE v. Ganoda Soondueee Debee 24 W. R. 460

' 61. Suit by pur-

\ chaser of equity of redemption — Co-sis of a redemp -
I tion suit — Compensation to mortgagee. The plaint-
iffs sued as purchasers of the equity of redemption
from S, a Hindu widow, to redeem a mortgage effect-
ed by her husband B. The mortgage-deed recited
that a portion of the mortgaged land was held by B,.
not as owner, but as mortgagee, from a third party.
S was alive when the suit was instituted, but she-
died after the settlement of issues. The plaintiff
then filed a supplementary claim to succeed as B's
next heir. The defendants (the sons of the mort-
gagee) contended that the plaintiff could not redeem,
because the sale by /S was invalid. They also-
claimed comi)eQsation for loss of the renta and pro-

( 8641 )

DKiEST OF CASES.

8ti42 )

MORTGAGE— con<(/.

10. ACCOUNTS— con<(Z.
fits of a portion of the mortgaged property redeemed
from B by the original owner. The Subordinate
Judge allowed the plaintiff's claim. On appeal,
the District Judge confirmed his decree, being of
opinion that the sale was valid as agamst the
defendants, because there were no collateral heirs.
On appeal to the High Court : — Held, that the
defendants were not entitled to any compensation on
account of the redemption of a portion of the mort-
gaged pi-ojierty by the original owner, because they
were aware that the mortgage to B was liable to be
redeemed, and they (defendants) took such a
precarious security at their own risk. In a redemp-
tion suit the defendant (mortgagee) is ordinarily
entitled to his costs, unless he has refused a tender
of the amount due to him, or has so misconducted
himself in the course of the suit as to induce the
Court to subject him to a penalty. Dhondo Ram-

CHAKDRA V. BaLKRISHNA GoBIND

I. L. E. 8 Bora. 190

62.

Costs incurred by

mortgagee — Transfer of Property Act {IV of 1SS2),
s. 7 J. Land, having been mortgaged to the defend-
ant, was let by him for rent to the mortgagor.
The rent fell into arrear, and the mortgagee sued and
obtamed a decree for the rent in arrear and for pos-
session. Subsequeiitly after the mortgagor's death,
her heir, the present plaintiff, unsuccessfully resisted
execution of tlie decree obtained against her, assert-
ing that she had no right to mortgage the property
which, it was alleged, had belonged to his father.
The plaintiff now brought a suit for redemption.
Held, that in taking the account the defendant was
entitled to have credit for the costs incurred in the
proceedings between him and the plaintiff, but not
in the proceedings between him and the original
mortgagor. Pokree Saheb Beary v. Pokree
Beary . . . I. L. K. 21 Mad. 34

Interest — Proof

of accounts — Failure to keep or omission to produce
accounts. In seeking to have the account taken
and to have it ascertained whether the mortgagee
has by means of the usufructuary mortgage obtained
more than 12 per cent, interest, and, if so, that the
surplus may be applied in reduction of the principal,
the mortgagee is not asking the Court to authorize a
departure from the agreement of the parties (where ]
there is one) that the mortgage-debt should bear no I
interest during a certain period. The onus is on the !
mortgagor to prove that the principal sum has been
paid or satisfied ; and on the mortgagee to show
what, if anything, is due to him for mterest. Fail- j
ure of the mortgagee in his duty, as trustee for the j
mortgagor, to keep accounts, and to produce proper
accounts, is to be regarded as misconduct which
ought to be taken into consideration upon the qucs- .
tion of costs. Kallya.x Das r. Sheo ^■u^D^^-
PUESHAD SiXGH . . . 18 W. R. 65

64. — Usury laws —

Beng. Reg. XXXIV of 1S03 — Obligation on mort-
gagee to file accounts. In a mortgage dated in 1852
of malikana fixed for the period of settlement, it was

VOL. III.

MORTGAGE— confrf.

10. ACCOUNTS— cow/^.
agreed that the mortgagee should collect the village
jumma, pay the Government demand, and take the
malikana, of which part was to be received by him as
interest on the money lent at one per cent, per men-
sem, and the balance, viz., R565 per annum, waste
be retained by him as the costs of c-ollection. No
accounts were to be rendered of the malikana
collected during the time of the mortgagee's posses-
sion. If this agreement had been a contrivance for
securing to the mortgagee a higher rate of interest
than that to which he was then by law entitled, it
•would have been void under the usury laws (in force
under Regulation XXXIV of 1803 until the passing
of Act XXVIII of 1855), and would not have pre-
vented the accounts from being taken. But as the
Courts found that the R505 per annum constituted a
fair percentage, which it had been bon/i fide agreed
should be allowed to the mortgagee for the costs of
Collection, it was licld that the agreement had been
rightly treated as a sufficient answer to a suit based
on the assumption that the whole of the mortgage-
money, principal and interest, would be satisfied if
the accounts contrary to the agreement) were taken
on the basis of charging the mortgagee -with the
R565 or so much thereof as ho should fail to prove
had been actually expended in the c-ollection. If the
amount received by the mortgagee had been fluctu-
ating, production of the accounts might have been
necessary for a decision on the validity of the
agreement set up. But it could not be said that by
no agreement could a mortgagee relieve himself
from the obligation of filing accounts under the 9th
and 10th sections of Regulation XXXIV of 1803 ;
and in this case he had done so : the only sum that
he was to receive beyond the interest allowed by law
being an unvaryiiag balance found to be a fair
allowance for the costs of collection. Badri
Prasad v. Murli Dhae . I. L. R. 2 All. 593
L. R. 7 I. A. 51

65. Mortgagee in

possession — Interest — Beng. Reg. XV of 1793.
In taking the accounts as between a mortgagor and
a mortgagee in possession, the interest may be set off
from time to time against the rents and profits, the
mortgagee only accounting to the mortgagor for any
rents, pi-ofits, and interest on the same which he
may have received over and above the interest due
to him upon the debt. Radhabenode Misser v.
Kripamoyee Dabee

10 B. L. R. 386 : 17 W. R. 262
14 Moo. I. A. 443

66; Interest on col-

lections by mortgagee — Commission on avxomU col-
lected. Held, that in cases of redcmptln of mort-
gage the mortgagee should not be charged with in-
terest on the money collected by him, but that the
money so collected shoidd first be applied in payment
of interest, accniing due on the mortgage-debt ; and,
if there is any surplus, in reduction of the principal
mortgage-debt. Held, further, that the mortgagee is
entitled to commission on the gross amount of collec-
tions to cover the expenses of collection, etc., and
this he is entiiKd to get at the rate of 10 pet

12 T

{ 8643 )

DIGEST or CASES.

( 8644 )

MORTGAGE— co»/rf.

10. ACCOUNTS— coH^f?.

cent., unless there is any express stipulation to the
contrary, or it is shown to be unreasonable.
RoGHONATH V. LucHJiuN SiNGH . 1 Agra 132

67, ^ . Redemption after

expiry of time and ivnder new interpretation of
law — Improvements, ^^^lere under the old law of
mortgage by which the mortgagee after the expiry of
the time for redemption acquired a proprietary right
in the property, there was an absolute delivery of
possession to the mortgagee, and the mortgagor
afterwards stood by and allowed the property to be
sold as unincumbered, the Court, in allowing the
mortgagor after twenty years to have redemption
of the property under the new interpretation of the
law of mortgage, yet considered that, under the
peculiar circumstances of this case, the Court
would not be justified in calling upon the mortgagee
to furnish accounts of the rents and profits on the
one hand, and of the principal and interest on the
other. Interest on the value of improvements
made since the time the property came into the
hands of A disallowed. Ra-mshet Bachashet t>.
Pandharinath ... 8 Bom. A. C. 236

68. - Suit by mort-
gagor for possession under usufructuary mortgage.
In a suit to recover possession of land with surplus
collections by redemption of a mortgage created by
a zur-i-peshgi lease, which was executed before the
usury law of 1855 was passed, where the lessee claim-
ed the surplus collections as his profits : — Held, that
the question should be decidedon the principle of the
Privy Council ruling in the case of Hoonooman Per-
saud, 6 Moo. I. A. 393, viz., that the mortgagee
should be charged in the account for actual rents and
profits, and receive interest at the highest rate sanc-
tioned by the law then existing. Finding, on adjust-
ment of the account between the parties, that there
was a balance in favour of the mortgagee, and
that therefore plaintiff was not entitled to a
decree for re-entry, the Court (following Kullyan
Dass V. Seo Nundun PursJiad Singh, 18 W. B. 65)
determined to declare the state of the account
between the parties upto the end of the year to
which the evidence extended. Perladh Sestgh
Bahadoor v. Broughton

24 W. R. 275

69. — Mortgagee in

possession — Interest. The proper sum to be allowed
a mortgagee for surinjamee is what he has actually
spent as expenses of his management. No decree
should be given against a person as being the real
mortgagee without evidence of the benami holding.
A mortgagee is entitled to interest on account of the
balance of patni rents paid by him. Brojonath
Sengh Roy v. Bhugobutty Dossee . 1 W. R. 133

70. ; Irdere-st—Mode

of calculation. There is no law restricting a mort-
gagee to the receipt by way of interest of the amount
of principal lent. The mode of calculation to be fol-
lowed in such cases is every year to add the amount
of interest to the principal sum, and then deduct the
value of the usufruct. Enaet Ali v. Kuhur Roy

1.^2 W. B, 289

MOBTGAGE— cow/rf.

10. ACCOUNTS— confd.
Doorga Churn Paharee v. Chutoorbhooj
Doss 5W. B. 200

71. Suit for redemp-
tion— Interest — Amount of interest alloived to mort-
gagee—Transfer of Property Act {IV of 1882),
s. 58. In 1882 the plaintiffs sued to redeem a
mortgage effected in 1833. The Court of first
instance allowed the mortgagee interest from the
date of the bond. The Appellate Court reduced the
interest awarded to the period of six years. Held,
reversing the decision of the lower Appellate Court,
that the mortgagee was entitled to claim interest
from the date of the bond up to the date of the
decree. Hari Mahadaji Savaskar v. Balambhat
Raghunath Khare, I. L. R. 9 Bom. 233, referred to.
No provision of limitation is made by the Limit-
ation Act for the payment of interest on the sum
due to the mortgagee. In s. 58 of the Transfer
of Property Act the mortgage-money is inter-
preted to include the interest due, and no time
to the payment of interest is fixed. Prabhakar
Chintaman Dikshit v. Pandurang Vinayak Dikshit,
12 Bom. 88, followed. Datjdbhai Rambhai v.
Datjdbhai Allibhai . I. L. B. 14 Bom. 113

72. Mortgage trans-
actions before Act XXVIII of 1855— Bom. Beg.

V of 1S27, ss. 11 and 12 — Arrears of interest. In
mortgage transactions in which the mortgage con-
tracts have been entered into before Act XXVIII of
1855 came into operation, and to which Regulation

V of 1827, ss. 11 and 12, applies, and in which an
account of principal and interest on the one side,
and of rents and profits on the other side, is not
directed, the arrears of interest must be limited to
six years. Vithal Mahtjdeb v. Dakd valad
Mahommed Hossain . . 6 Bom, A. C. 90

73. Provision for

payment of interest out of usufruct. WTiere the usu-
fruct of mortgaged property was to be enjoyed in
lieu of interest, the fact of the mortgagees having
had possession was Jield to be no ground for the
inference that any portion of the debt, save the
interest, was paid off from the usufruct. Bam a
Sunduree Dossee v. Bama Sxjndiiree Dossee

10 W. B 301

74. ^ Mortgage with decree for
account and sale — Withdrawal of execution-
'proceedings — Principle on which accounts are to be
taken. A mortgagee, who has obtained a decree for
an account and sale, is not entitled to withdraw
from the taking of accounts in his execution-pro-
ceedings when those accounts appear to be going
against him. Doolee Chand v. Omda Khantjm
alias Babtj Shubibtj

I. li. B. 6 Calc. 377 : 7 C. L. B. 375

75. Bight to re-open accounts
— Suit by mortgagor for possession under usufruc-
tuary mortgage. In a suit to recover possession of
land in the possession of the mortgagor under a
usufructuary mortgage (which is in reality a suit
between the mortgagor and mortgagee for an ad-
justment of the account between them), if upon
taking an account it appears that the mortgagee has

( 8645 )

DIGEST OF CASES.

( 8646 )

MORTGAGE— cow^rf.

10. ACCOUNTS— co?i<(Z.
been fully satisfied, the mortgagor is not only en-
titled to have the property back, but (the decision in
Motee Soonduree v. Indrajeet Kowarec, Marsh. 112,
being overruled) the Court is bound as a Court of
Equity, and acting upon the principle that it is
ahvays the aim of a Court of Equity to finally deter-
mine as far as possible all questions concerning the
subject of the suit, to cause an account to be taken
up to the time of the decree, the account so taken
being considered binding and the parties not being
at liberty, except under peculiar circumstances, to
re-open it in another suit. Kullyan Dass v. Sheo
Nttndun Purshad Singh . . 18 W. R, 65

and see Roy Destktjr Dyal v. Sheo GoL.4ai Singh

22 W. R. 172

and Lutaput Hosein v. Chowdhry Mahomed

MooNEM 22 "W. R. 269

76. Realization by moi'tgagee

of sum in excess — Interest — Usufructuary mort-
gage. ^Vhere a mortgagee under a usufructuary
mortgage has realized a sum of money in excess of
the amount due to him, it is an equitable practice to
allow to the mortgagor interest on such sum at the
same rate at which interest has been allowed to the
mortgagee on his mortgage-debt. Bechoo Singh
V. Roy Sheo Sahoy . 1 W. W. 56 : Ed. 1873, 111

77.

Suit for account

and redemption — Form of decree. In a suit for
account and redemption, if the mortgagee, on taking
the accounts, is found to have been overpaid, the
general practice is to order the payment, by him of
the balance due to the mortgagor, with interest from
the date of the institution of the suit. Janoji r.
Janoji . . . I. L. R. 7 Bom. 185

78. ■ Suit for redemp-

tion of two distinct mortgages — Right to separate
accounts — Dekkhan Agriculturists' Belief Act (XVII
of 1S?9), s. 13 — 21ode of taking accounts. By two
separate mortgages certain land were mortgaged
in 1830 by the plaintitiE's father to the defend-
ant. In 1882 the plaintiff as an agriculturist
brought the present suit for redemption of tlie
lands comprised in both mortgages. Held, that
separate accounts of the two mortgages shoidd bo
taken. The mortgages were distinct transactions
relating to different lands, and s. 13 of the Dekklian
Agriculturists' Relief Act co ntains no words enabling
the Court to treat them as one. The fact of their
being included in the same suit could not affect the
question. In taking the accounts of the above mort-
gages it was proved that on one mortgage there
I was a sum of R 5,075- 13-2 due to the plaintiff
(mortgagor) by the defendant (mortgagee), and
on the other mortgage a sum of U 3,774-2-7 duo to
I the defendant by the plaintiff. The plaintiff con-
; tended that, althougli by the ruling in Janoji v.
Janoji, I. L. R. 7 Bom. ISo, he could not c imiJel
payment of the R5,075-13-2 due to liim on the one
mortgage, he was entitled to have so much of it as
might be necessary set-off against the 1^3,774-2-7
still due by him on the other mortgage. Held,
that, on the authority of Janoji v. Janoji, I. L. R.

MOB,TG AG-E—contd.

10. ACCOUNTS— co>i/cL
7 Bom. 18', the plaintiff had no legal claim to
the R 5,075- 13-2, and, that being so, the existence of
that balance in his favour on account of one
mortgage could not be treated as extintruish-
ing the claim of the defendant to the R3, 774-2-7
duo on the other mortgage. The plaintiff
as an agriculturist mortgagor was enabled
to free his land from both the murtgages
on the favourable terms provided by the Dekkhan
Agriculturists' Relief Act (XVII of 1879), but waa
precluded from compelling the mortgagee to refund
what the latter had personally acquired under the
terms of his contract of mortgage. Rajichandea
Baba Sathe v. Janardan Apaji

I. li. R. 14 Bom. 19

79. Binding eflFect of aceount —

Mortgagor and Mortgagee — Puisne mortgagee.
Qucere : \Miether the account arrived at in a decree
obtained by the prior mortgagee against the mort-
gagor only is binding on a puisne mortgagee who
had no notice of the subsequent incumbrance.
Sankana Kalana v. Viritpakshapa Ganesh.\pa
I. L. R. 7 Bom. 146

80.

Assignee of mart-

gagee — Suit for redemption. In India, as in Eng-
land, a mortgagee may transfer his rights to a
third person by way of assignment, but such transfer
must be without prejudice to the riglits of the mort-
gagor, and in a suit by a mortgagor for redemption
where the assignment has been made without the
knowledge of the mortgagor, the assignee Ls tound
by the state of the account between the mortgagor
and mortgagee. Chinnayya Rawutlan v. Chi-
dambaram Chetti . . I. L. R. 2 Mad. 212

81.

Error in account — Ground

for reforming account — Wrong statement of account —
Agreement to pay mortgage-debt by iihst<dments.
In a written agreement by a debtor to pay his debt
by instalments securuig the payment by a mortgage
of land, the amount of the debts was erroneously
stated to be greater than it actually was. In a suit
on the agreement: — Held, that such an error waa
ground for reforming the account, but not for setting
aside the agreement. Seth Gokcl Dass Gopal
Dass v. Murli

I. L. R. 3 Calc. 602 : 2 C. L. R. 158
L. R. 5 I. A. 78

82.

Mortgagee in

possession — Redemption — Mode of takin'j accounts.
A mortgagor seeking to redeem must prove how
much of the debt and interest has been repaid.
The duty of a mortgagee in possession is to keep
a full, true and accurate account of the actual re-
ceipts and disbursements. In taking accounta
between a mortgagor and mortgagee, the Judge
must decide as to the accuracy or otherwise of the
accounts presented to him by the parties, and it
is upon these accounta and the evidence before him
in the cast' that ho must find the amount payable
on redemption. Kundanmal v. Kashibai (1902)
I. L. R. 26 Bom. 363

12x2

( 8647 )

DIGEST OF CASES.

( 8648 )

MORTGAGE— cwiti.

10. ACCOUNTS— cowcZtZ.

83.

— Usufructuary
of the amount

m ortgage — Redemption — Payment
found due on taking a^-counts. S. 13 of the Dekkhan
Agriculturists' Relief Act (XVII of 1879) is im-
perative and the amount clue in a suit for redemp-
tion of a usufructuary mortgage, in which the
provisions of s. 12 of the Act have been complied
•with, is the amount which is found to be due upon
taking accounts in the manner provided by s. 13.
Dadabhai v. Dadabhai (1908)

I. L. R. 32 Bom. 516

11. DISCHARGE OF MORTGAGE.

Death of mortgagee — Heirs of mort-

gagee— Payment of mortgage-debt to one of the heirs.
Where property is mortgaged to a person who
subsequently dies leaving two or more heirs jointly
entitled to his estate, payment made by the
mortgagor of the amount due on the mortgage, to
one of those heirs, without the concurrence of the
rest, does not amount to a valid discharge to the
mortgagor. Sitabaji Apaji Kode v. Shridhar
Anant Pkabhtj (1903) . I. L. R. 27 Bom. 292

12. PRIORITY.

Mortgage — Prior-
Receiver under an order of

ity — Mortgage

Court — Mortgage for preservation of property — Pre
vious mortgage to pay off putni rent. Where a
mortgage is executed by a Receiver under an order
of Court directing that such mortgage should
constitute a first charge, it takes priority over
any other mortgage of earlier date. Gibidhari
Lal Ray v. Dhirendea Kristo Mukerjee (1906)
I. L. R. 34 Calc. 427
Priority. When

two mortgages are executed on the same day,
that which was executed first takes priority and
evidence may be given to ascertain which was in
fact executed first. Where this cannot be ascer-
tained the mortgagees would take as joint tenants
Or tenants in common. Hopgood v. Ernest, 3 De.
J. & S. 116, followed. Ram Ratan Sahu v.
BiSHUN Chand (1907) . . 11 C. W. K". 732

13. MISCELLANEOUS.

!• Mortgagor and the

second mortgagee given opportunity to redeem —
Purchase in execution ly the mortgagor — Second
mortgagee's lien upon the property— Suit by second
mortgagee — Question whether the purchaser a henami-
dar of the mortgagor, if can he done into — Paramount
title, claim of — Necessary party — Right of a person
made a party defendant to urge in apjxal that he was
not a proper party. The mortgagor purchasing the
mortgaged property in execution of a mortgage-
decree made in the suit of a prior mortgagee in
which mortgagor and the second mortgagee were
made defendants and given an opportunity to
redeem the prior mortgage acquires the property

M ORT G A GE— cow<rf.

13. MISCELLANEOUS— fou^rf.
subject to the second mortgage. The question
whether the purchaser of a property at a sale free
from the second mortgage in execution of the
mortgage -decree made in favour of the prior mort-
gagee, is a henamidar of the mortgagor or not does
not relate to conflicting titles to the property as
between the mortgagor and a person claiming a
paramount title and is a proper question that arises
in the suit of the second mortgagee to enforce his
mortgage. Such a purchaser is therefore a proper
party to the suit. When a person who is not a
proper party to a suit alloAvs himself to be made a
party defendant without any objection and an issue
relating to him is raised and decided in the suit, he
cannot change front and insist in the Appellate
Court that an error has occurred in making him a
party and that the issue was not triable in the action.
Bhajtj Chowdhury v. Chuni Lal Marwari (1906)
11 C. W. W. 284

2. Transfer of Pro-
perty Act {IV of 1S82). s. 85 — Suit on mortgage —
Parties — Notice — Person not known to he interested
and not made a party, if bound — Representation of
debtor's estate by adult heirs only — Suit to redeem
brought after sale— Limitation — Limitation Act (XV
of 1877), Sch. II, Art. 12 (a). In a suit to enforce a
mortgage, the mortgagee made one only of two per-
sons who represented the estate of the mortgagor a
party dependent not having notice of the existence
of the other. Held, that the latter was bound bj'-
the decree obtained by the mortgagee and his inter-
est passed at the sale held in execution of the decree.
Ram Nath Rag v. Luchman Ray, I. L. R. 21 All. 194 ;
Lala Sura] Prasad v. Golab Chand, I. L. R. 28
Calc. 517 ; Shivram v. Genu, I. L. R. 6 Bom. 51i,
relied on. Assamathem Nissa Bibee v. Roy Lach-
mipat Singh, I. L. R. 4 Calc. 142 ; Jafri Begam v.
Amir Muhammed Khan, I. L. R. 7 All. 822 ; Luch-
mipat Singh v. Land Mortgage Bank of India, I.
L. R. 14 Calc. 4)4, reievred to. That for the pur-
pose of the suit the estate of the mortgagor was
sufficiently represented as the person who was sued
was alone in possession of the mortgaged property,
and the other person, a minor, was not known to the
mortgagee and his interest did not appear to have
suffered by reason of his not being made a party.
Khiarajmal v. Daim, 9 C. W. N. 201 : I. L. R. 32
Calc. -9:) : L. R. 32 I. A. 23, followed. Sharf-
TJDDiN, J. — A suit by the latter to redeem the
mortgage after the property had been sold as above,
could not succeed without the sale being set aside
and not having been instituted within one year
of his attaining majority was barred under Art. 12
(a) of Sch. II of the Limitation Act. Ram Taran
Goswajmi v. Rajvieswar Malia (1907)

11 C. W. N. 1078.

Mortgage — Pro-

perty mortgaged not at date of execution belonging to
the mortgagor — Effect of subsequent acquisition of
such property by the mortgagor. The plaintiff in a
pre-emption suit, in order to procure funds for the
prosecution of his suit, executed a mortgage com-
prising certain property of which he Was the ownej

( 8G49 )

DIGEST OF CASES.

( 8650 )

MORTGAGE— fore^rZ.

13. MISCELLANEOUS— cowfef.
and also the property the subject-matter of the suit
for pre-emption. The suit for pre-emption was
successful. Held, that the mortgage took effect as
regards the property the subject of the pre-emption
suit from the time when the plaintiff mortgagor
obtained possession by virtue of his decree in the
suit. Holroyd v. Marshall, 10 H. L. 210 ; Colhjer
V. Isaacs, 19 Ch. D. 342 ; and Bansidhar v. Sant
Lai, I. L. R. 10 All. 133, referred to. Gaya Dra
v. Kashi GiR (1906) . I. L. R. 29 All. 163

Court-fe

Decree for redemption of 'mortgage — Appeal on the
main ground tlmt nothing was due under the mortgage.
Held, that in the case of an appeal from a decree
allowing a defendant mortgagor to redeem the
mortgage on payment of a sum named therein
based upon the ground that the mortgage-debt has
been satisfied out of the usufruct of the property
mortgaged and nothing whatever is due from him,
the proper C'ourt-fee payable is an ad valorem fee
upon the total amount of the decree under appeal.
Nepal Rai v. Debi Prasad, I. L. R. 27 All. 447, and
Reference under Court-Fees Act, 1S70, I. L. R. 29
Mad. 3.7, followed. Mahadeo Prasad y. Gorakh
Pkasab (1908) . . L L. R. 30 All. 547

Execution of

decree — Attachment — Mortgage — Right of mortgagor
in respect of money promised, but not paid. Where
money promised as a loan by a mortgagee is not
advanced in full, the mortgagor is only entitled to
recover, if anything, damages for non-payment of
the balance : he cannot sue for specific performance
of the agreement to lend the full sum promised, and
the non-payment of a portion of the loan does not
constitute a debt, which can be the subject of
attachment and sale under s. 266 of the Code of
Civil Procedure. The South African Territories
Company, Limited v. WalUngton, [1S9^ A. C. 309,
referred to. Phul Chand v. Chand Mal (1908)

I. L. R. 30 All. 252

6. Transfer of Pro-

perty Act {IV of 18S2), s. 85— Mortgage suit
Parties — Omission to join all the heirs of a purchaser
of mortgaged property within time — Efject — Limit-
ation— Notice — Apportionment of debt. Where three
days before the period of limitation would expire a
mortgagee instituted a suit on his mortgage making
the original mortgagors and one out of several heirs
of a purchaser of the mortgaged properties defend-
ants and the latter in his written statement, filed
after the period of limitation had expired, objected i
that the suit was not maintainable by reason of the j
other heirs of the purchaser not having been made
parties : HeM, that the suit could not be dismissed
on the ground of defect of parties, unless it was
foimd that the plaintiff was aware at the date of
the suit, of the interest of these persons in the
mortgaged property. Held, further, that the
proper procedure was to add these heirs as parties,
and if it appeared that at the date of the suit the
plaintiff was not aware of their interest in the
property, to ascertain what proportion of the debt

MORTGAGE— fo«/(Z.

13. MISCELLANEOUS— conW.-
was due by the heir, who had been made a party in
time and to pass a decree against his share for that
amount. Hari Kissen v. Veliat Hossein, 7 C. W.
N. 723 ; s.c. I. L. R. 30 Calc. 765 ; and Ghulnm
Kadir v. Mustakin Khan, I. L. R. IS All. 190,
referred to. Basiruddin Biswa.s v. Debexdro
Nath Biswas (1908) . . 12 C. W. N. 911

7. Comjyromise in

course of midation proce^idings purporting to vary
the terms of a re^jistererl deerl. Hell, that a com-
promise entered into between the parties to muta-
tion proceedings before a Court of Revenue which
purported to modify the conditions of a pre-existing
mortgage, upon the basis of which mutation was
sought, could not be allowed to take effect in
oppj.sition to the distinct terms of the registered
instrument of mortgage. Nur Ali v. Imnman,
All. Weekly Notes 11884)40, distinguished. Raghu-
bans Mani Singh v. Maliahir Singh, I. L. R. 28 All.
78, and Pranal Anni v. Lakhshmi Anni, I. L. R.
22 Mad. 508, referred to by Banerji and Richards,
J J. Sadab-ud-din AffMAD V. Chaj.ju (1908)

I. li. R. 31 All. 13

Partition-suit,

decree in, if binds previous mortgagee — Mortgage of
entire property aiid not of a share — Estoppel —
Mutuality essential — Person not bound by judgment,
if may rely on findings in it. A person claiming
under a mortgage not purporting to be a mortgage
of an undivided share of some property is not bound
by the result of a subsequent partition suit to which
he was not made a party. Dooma Sahoo v. Joona-
rain Lall, 12 W. R. 362, Bonomolee Nag v. Koylash,
I. L. R. 4 Cak. 692, Shashi Bhusan v. Gogan Chun-
der, I. L. R. 22 Calc. 364, relied on. Bujnaih Lall
v. Ramoodeen, L. R. 1 I. A. 106, Hem Chunder v.
TJuiko Moni, I. L. R. 20 Calc. 533, distinguished.
Defendants who were not bound b\' the judgment
could not be permitted to take advantage of any
findings in it — for an estoppel must Ix^ mutual.
SuRJA Prosad Thakur v. Rajmohan Toi'edar
(1908) . . . , 13 C. W. N". 281

9. Land Acquisition

Act {I of 189 f), s. 16 — Declaration — Mortgage exe-
cuted after — Mortgagee' s remedy — Lien on compen-
sation-money. Where*, after declaration made by
Government for tlie acquisition of property
under the Land Ac(|uisition Act the owner exe-
cuted a mortgage : Held, that the mortgagee
could execute the ilccree obtained on his mortgage
under s. 88 of the Transfer of Property Act by
attaching the compensation- money in the hands of
the Collector, and a further decree under s. 90 of
the Act ia not neccssarj' for the purpose. The
mortgage lien was transferred to the compensation-
money into which the property was converted.
Basa Mai v. Tajammal Husain, I. L. R. I'i All.
78, 79, dissented from. Jotoxi CnowDurRAXi v.
Amor Krishxa Saha (1904) . 13 C. W. N. 350

10. Land Acquisition

Act (I of 1894), 8. 16— Declaration — Mortgagt
created after possession taken — Validity — Transfer

( 8651 )

DIGEST OF CASES.

( 8652 )

MORTGAGE— concZci.

13. MISCELLANEOUS— conc/ci.
of lien to compensation-money. An owner of pro-
perty cannot create a valid mortgage upon it after
declaration has been issued by Government for its
acquisition under the Land Acquisition Act and
possession taken by tlie Collector in pursuance
thereof. There is no lien on the mortgaged pro-
perty to be transferred to the compensation- money.
Jotoni Cliowdhurani v. Amar Krishna Saha, 13
C. W. N. 3 ')0, explained. Amae Chandra Kfndu
V. Ram Sukdar Saha (1909) . 13 C. W. N. 357

MORTGAGE BOND.

See Attestation I. L. R. 33 Gale. 861

See Civn. Pbocedtjee Code, 1882, s. 257A.
I. L. R. 31 Bom. 552

See Transfer of Property Act, 1882,
ss. 83, 84 . I. L. R. 36 Gale. 840

MORTGAGE-DEBT.

apportionment of —

See Contribution, suit for — Payment
OF Joint Debt by one Debtor.

3 B. L. R. A. C. 357

See Mortgage — Accounts.

I. L. R. 15 Bom 257

See Mortgage — Marshalling.

See Mortgage — Redemption — Redemp-
tion OF Portion of Property.

13 Moo. I. A. 404

24 W. R. 47

15 B. L. R. 303

I. L. R. 4 Calc. 72

I. L. R. 9 Mad 453

I. L. R. 17 All. 63

I. L. R. 21 Bom. 544

See Transfer of Property Act, s. 82.

I. L. R. 18 Gale. 320

I. L. R. 14 Mad. 71

I. li. R. 19 All. 545

bond-

— contribution —

See Transfer of Property Act, s. 82.

6 C. W. TT. 583

omission to set up mortgage

See Res Judicata — Matters in issue.
I. L. R. 24 All. 429

payment of portion of—

See LuviiTATioN Act, 1877, A-rt. 146
(1871, Art. 149). I. L. R. 4 Gale. 283
See Mortgage — Redemption — Redemp-
tion OF Portion of Property.

MORTGAGE DECREE.

See Bengal Tenancy Act, s. 167.

13 C. W. N. 412
See Costs, liability for.

I. L. R. 30 Mad. 464
See Hindu Law — Joint Family.

I. L. R. 28 All. 182

See Transfer of Property Act, s. 90.

I. L. R. 31 Bom. 244

appeal from, after alteration of
. I. L. R. 36 Gale. 336

decree

See Sale .
MORTGAGE-DEED

payment of, to one of the heirs

of mortgagee —

<See Mortgage — Discharge of Mort-
gage . . I. L. R. 27 Bom 292

See Transfer of Property Act, 1882,
s. 59 . . I. L. R. 33 Bom. 44

MORTGAGE LIEN.

Collusive decree — Fraud

— Landlord and tenant — Sale for arrears of rent
— Right of suit. AVhen a landlord, in collusion
with his tenant, obtained a decree for rent, and in
execution thereof purchased the holding, the lien
of a mortgagee under the tenant of a part of the
holding shoiild be held to continue to subsist upon
the land, and the mortgagee would have the same
right against the landlord as he would have against
the mortgagor. Ram Saran Das v. Ram Pergash
Das (1905) . . . I L. R. 32 Gale. 283

MORTGAGE SUIT.

See Mortgage.
See Practice.
MORTGAGED PROPERTY.

See Mortgage.

See Sale in Execution of Decree.
decree against —

See Decree — Construction of Decree

— Mortgage.
See Decree — Form of Decree — Moet-

out of jurisdiction —

See Jurisdiction — Suits for Land —
General Gases — Foreclosure.

See Jurisdiction — Suits for Land —
General Cases — Lien.

See Jurisdiction — Suits for Land —
General Cases — Redemption.

I. L. R. 1 AIL 431
1 Ind. Jur. N, S. 319
MORTGAGEE.

-See Decree . I. L. R. 34 Calc. 150
See Mortgage.

See Transfer of Property Act, s. 85.
I. L. R. 30 Mad. 353

( 8653 )

DIGEST OF CASES.

( 8G54 )

MORTGAGEE— concZrf.

acknowledgment by —

See Limitation Act, s. 19— Acknowledg-
ment OF OTHER Rights.

— m possession —

See Mortgage — Accounts.

See Mortgage — Possession
Mortgage.

lien of-

See Sale for Arrears of Revenue

Deposit to stay Sale.

I. L. R. 30 Calc. 794

— possession to —
See Sale . I. L. R. 36 Calc. 336

rent due to-

See Bengal Tenancy Act, s. GO.

5 C. "W. N. 482
rights of —

See Actionable Claim.

I. L. R. 30 Mad. 235

!• Money-decree- Transfer of Pro-
perty Act {IV of 1SS2), s. ft<—Moneij decree oh-
tamed by mortgagee against mortgagor — Transfer
of the decree — Assignee hound by the provision's of
s. 99. The transferee of a money decree obtained
by a mortgagee against his mortgagor is bound by
the restriction imposed upon the mortgagee by s. 99
of the Transfer of Property Act (IV of 1882). Ha
can attach the mortgaged property, but he is not
entitled to bring it to .sale otherwise than by insti-
tuting a suit under s. 67 of the Act. Chhagan v.
Lakshiman (1907) . . I. Ij. R. 31 Bom. 462

2. Adverse ■posseasion—Tran^'fcr

of Property Act {IV of 1SS2), s. 6 {d). A mortgagee
cannot, during the continuance of the mortgage by
any act of his, render his possession adverse to
the mortgagor. Khiarajmal v. Daim, I. L. B. 3!
Calc. 296, 3iJ, referred to. Muzaffar Ali Khan
V. Parbati (1907) . I. L. R. 29 All. 640

MORTGAGOR AND MORTGAGEE.

See Equity of Redemption.
See Lease — Construction of.

6 C W. N. 372
See Mortgage.

See Parties to Conveyance.

12 B. L. R. Ap. 7

See Surety — Enforcement of Security.

I. li. R. 30 Calc. 1060

1. Mortgage by

executors and residuary legatees of property trhich
was subject to a charge under the u-ill — Deposit of
title-deeds previously with mortgagees — Cotistructive
notice — Mortgagee's omission to investigate title —
Creditors and legatees under will — Lapse of time
between testator's death and execution of mortgage,
effect of. A Hindu carrying on business in Bombay
died in 1885 having executed a -nill by -which he

MORTGAGOR AND MORTGAGEE—

conrld.

left to his four elder sons certain immoveable
property subject to a charge of H 30,000 in favour
of his widow and four younger s .ns, and made his
four elder sons executors and residuary legatees
of his will directing them to carry on the bu.siness.
After their father's death the elder sons in the
course of their business transactions became
indebted to the Bank of Bombay in respect of
advances by the Bank, to secure whi^h, on 13th
September 1890 (two of the younger sons being
then minors), the elder sons deposited with the
Bank by way of equitable mortgage certain title-
deeds relating to the property charged by the will ;
and on 12th January 1899 executed a mortgage
of the same property in favour of the Bank for
R 52,000 without stating the charge ui)On it. In
one of the documents of title deposited with the
Bank the title of the mortgagors was indicated,
and had the Bank investigated the title (which
theycUd not do) they would have been put upon
inquiry and would have become aware of the charge
created on the property by the will. The younger
sons only became aware of the transaction "in June
1903 when the Bank advertised the property for
sale under their mortgage. In a suit brought by
them on 15th September 1903 against the Bank and
the mortgagors to establish the priority of their
charge over the mortgage to the Bank, 'the latter
pleaded that the mortgage was made for valuable
consideration, and that they were boivi fide trans-
ferees without notice. Z^eW"(upholding the decision
of the High Court), that under the circumstances
the Bank had constnictive notice of the charge under
the will. The Bank had on the facts dealt
with the mortgagors not as executors but as persons
pledging their own property for their own debts,
and under the circumstances took no better title
than that which their debtors really had in the
capacity in which thej- were dealt wit', namely,
residuary legatees. In re Queale's Estate, Ir.
L. B. li Ch. D. 3 1 at p. 30S, followed. Held,
also, that the plaintitfs being legatees the Bank took
the property subject to the charge ujwn it created
by the will. Distinction drawn between the
creditors and legatees in such a case : Spence's
" Equitable Jurisdiction," Vol. II, page 376,
referred to. By the terms of the will the legacy
was to be made up and paid within six years
after the testator's death which period expired
in 1891, and the mortgage was not executed until
eight j-ears afterwards ; and it was contended that
assuming that the Bank had notice of the will
they were entitled to assume that the exe, utors were
acting with the consent of the legatees (plaintiffs).
Beld, that although in cases of this kind delay was a
( ircumstance to be taken into consideration, yet,
having regard to the fa; t that two of the plaintiffs
were still minors wiien the title-deedi, were deposited
with the Bank, and that continued possession by
the exe utors anil mortgagors was not inconsistent
with the purposes of the will, the rights of the
parties were unaffected by that circumstance.
Bank of Bombay v. Sulemak Somji (1908)

I. L. R. 33 Bom. 1

( 8655 )

DIGEST OF CASES.

,( 8656 )

MORTMAIN, STATUTES OF—

See AViLL — Construction.

14 B. L. R. 442
MOSQUE.

i^'ee Mahomedan Law — Endowment.
See Mahomedan Law — Mosque.
See Mahomedan Law — Worship.

Lli. R. 35 Gale. 294

management of—

See Mahomedan Law — Endowment.

I. L. R. 18 Bom. 401
MOTHER,

See Hindu Law — Alienation— Aliena-
tion BY Mother.
See Hindu Law — Guardian — Powers

OF Guardians.

See Hindu Law — Guardian — Right of

Guardianship . I. L. R. 5 Calc. 43

7 W. R. 73

3 W. R. 194

See Hindu Law — Inheritance — Special

Heirs — Females — Mother.
See Mahomedan Law — Guardian.

I. L. R. 29 Calc. 473

power of—

See Guardian — Duties and Powers of
Guardians.

— share of, on partition —

See Hindu Law — Partition.

new. N. 239 ; 698

— unchastity of—

See Hindu Law — Widow — Disqu.^lifi-
CATioNS — Unchastity.

MOTIONS.

See Practice — Civil Cases — Report of
Registrar . I. L. R, 28 Calc. 272

obtaining decree on —

See Practice — Civil Cases — Motions.

I. Ii. R. 26 Bom. 76

taking further evidence on —

See Practice — Civil Cases — Motions.

MOULMEIN, JUDGE OF—

Set Jurisdiction — Admiralty and Vice-
Admiralty Jurisdiction.

24 W. R. 50

MOVEABLE PROPERTY.

,sve Attachment — Attachment before
Judgment . I. L. R. 16 All. 186
See Criminal Breach of Trust.

I. L. R. 23 Calc. 372

MOVEABLE PROPERTY— cowcZf?.

See Hindu Law — Widow.

I. L. R. 32 Bom. 59

See Letters Patent, cl. 12.

I. L. R. 28 Mad. 216 ; 487

See Mahomedan Law — Endowment.

I. L. R. 24 All. 190
See Perpetuities.

I.L. R. 20 Bom. 511

See Registration Act, 1877. s. .3.

3 Agra 157
3 B. L. R. A. C. 194

See Registration Act, 1S77, s. 17.

I. L. R. 10 All. 20

See Small Cause Court, Mofussil —

.Jurisdiction — Moveable Property.
See Small Cause Court, Presiden-
cy Towns — Jurisdiction — Moveable
Property.
5ee Theft . I. L. R. 10 Mad 255
I. L R. 15 Bom 702
I. L. R 36 Calc. 758

execution of warrant against —

See Execution of decree — Mode of
Execution Generally and Powers
OF Officers in Execution. '

5 B. L. R. Ap. 27 : 13 W. R. 339

See Small Cause Court, Mofussil —
Practice and Procedure — ExecU-
TioN of Decree.

MOWRA FLOWERS.

possession of, for distillation —

See Bombay Abkari Act, 1S78, s. 4,3'
CL. (/) . . I L. R 9 Bom. 556

MUAFIDAR.

See North-Western Provinces Rent I
Act, s. 93 . . I. L R. 26 All. 78 1

MUCHILIKA.

See Civil Procedure Code, 1882, s. 43.
I. L. R. 27 Mad. 116 1

MUKADDAM.

See Hindu Law — Widow.

I. L.R. 30 All. 4901

MUKADDAMI TENURE.

See Tenure — Mukaddami Tenure.
MUKHTEAR.

See MooKTEAR.

MUKTAD CEREMONIES.

1. Truats to perfo

Mulctad ceremonies, validity of — Tenets of Zorons-
trian faith — Nature and meaning of Mul-tad Cere-
monies— Ceremonies tending towards the advance'

( 8657 )

DIGEST OF CASESi

( 8658 )

MUKTAD CEREMONIES— coMc/f/.

ment of religion — Practice — How fnr decision by
single Judge binding on his successors. Trusts and
bequests of lands or money for the purpose of de
voting the incomes thereof in perpetuity for the
purpose of performing Muktad, Baj, Yejushni,
and other like ceremonies, are valid " charitable "
bequests, and as such exempt from the application
of the rule of law forbidding perpetuities. The
Farvardigan days are the most holy daj'S during
the Zoroastrian year and the jierformance of Muk-
tad ceremonies during the Farvardigan days is en-
joined by the Scriptures of the Zoroastrian religion.
The performance of the Muktad ceremonies is a
religious duty imposed on the Zoroastrians by the
proved tenets of the religion they profess. The
ceremonies themselves are acts of religious \^'orship.
They include worship, praise, and adoration for the
Supreme Deity, and a thanksgiving for all his mer-
cies. They contain petitions for benefits, both
temporal and spiritual, for all Zoroastrians — for
all holy and virtuous men of all other communities
— and they comprise prayers for the well-being and
long reign of the sovereign, for good government
by him, and for victory to him over all his enemies.
The Muktad ceremonies tend most unmistakably
towards the advancement of the religion promul-
gated by the Persian Prophet Zoroaster and there
can be no doubt that the performance of these
ceremonies is an act of Divine Worship in its high-
est and truest sense. The monies paid to the priests
for the performance of the Muktad ceremonies
forms a good portion of their ordinary income.
The priests make a higher income during the Far-
vardigan days than they do during any other
period of the year, and the Muktad ceremonies
form a sort of endowment which goes a long way
to maintain the priesth' classes whose existence is
necessary to the community of Zoroastrians.
According to the belief prevailing amongst the faith-
ful followers of the Projjhet Zoroaster, the perfor-
mance of the jMuktad ceremonies confers public
benefits — benefits on the Zoroastrian community,
•on the peoples amongst whom they live and upon
"the country which they have chosen as their home.
'The fundamental principle underlying this belief
is faith in the efficacy of prayers addressed to the
•Great Creator. A Judge sitting on the original
side is bound ordinarily to follow the judgment of
another Judge when he has decided a point of law,
or laid down certain principles of practice or pro-
cediu'e or judicially construed any provision of the
-law prevailing in the country. But a single Judge
is not bound to follow another Judge's findings
of fact based on the evidence recorded by hint, w hen the
-evidence that may be available before a Judge in
a later case may be fuller or more reliable and may
tend to lead him to a different conclusion. Limji
Jfouroji Bamiji v. Bapuji Eiittonji Limbmcalla,
J. L. it. 11 Bom. 441, not followed. Jamshedji
•C. Takachand v. Soonabai (1907)

I. L. R. 33 Bom. 122

MULAGENI CHIT.

fSee Transfer OF PKOPERxy Act. s. 114.
I. L. R. 28 Mad. 389

MULRAIYAT.

j Incidents of a

I midraiyati tenure— Right to split up such a tenure —
, Suit for ejectment by a mustagir. A mulraiyat is a
village headman or settlement-holder, whose rights
are in their entirety transferable and attachable.
The privilege, which the mulraiyat possesses, of
transferring his tenure, must be exercised in re-
. spect of the whole tenure at the same time, in other
I words, if he chooses to transfer his tenure, he must
' alienate the whole of his rights in the village, in-
cluding his right of managing the villatre ami col-
lecting the rent as also his right to the land in his
possession. He cannot split up the tenure so as
to part with a portion and retain the remainder.
Therefore a person who purchases only a jiortion of
the tenure acquires no right as mulrai>/at and is
liable to be e\'icted by the mustagir of the village
in the absence of a finding that he has a risht as an
ordinary raiyat. Darbari Paxjiara r. Bevi Rai
(I'JOo) . . . I. L. R 32 Calc. 1014

MULTIFARIOUSNESS.

See Administration . 15 B. L. R. 296
I. L. R. 26 Calc. 891
3 C W. N. 670
See Appell.ate Court — Objections
taken for first time on Appeal —
Speci.al Cases — Misjoinder.
-See Civil Procedure Code 1SS2, ."^s.
10, 19 . .1. L. R. 30 All. 560

See Civil Procedure Code. 1S82. s. 45.
I. L. R. 29 All. 267
See Joinder of Causes of Action.
See M.VLABAR L.aw — Joint Family.

I. L. R. 15 Mad. 19
<See Plaint — Form and Contents of
Plaint — Cause of Action.

6 C. W. N. 585
See Relinquishment of, or Omission to
sue for, Portion of Claim.

14 B. L. R 418 note

<See Rent, suit for . 5 C. W. N. 880
See Special or Second Appeal — Other
Errors of Law or Procedure — Mul-
tifariousness.

<See Specific Relief Act, s. 27.

I. L. R. 1 All. 555

: dismissal of suit for —

See Res Judic.at.\ — .Judgments on Pre-
LIMIN.ARY Points . ISB. L. R. Ap. 37

1. — Misjoinder of causes of

axjtion — Different causes of action ag'iiri-<t differ-
ent parties. When a plaint di.scloscs different
causes of action against different parties, it is bad in
law, and the suit is not maintainable. Sakat
Soondery Debt v. Sukjukant Acharji Chow-
DHRY 2B. L. R. Ap. 53: 11 W. R. 397

( 8659 )

DIGEST OF CASES.

( 8660

MULTIFAKIOUSNESS-^on/ti.

MoTEE Lall V. Bhoop Singh

2 Ind. Jur. N. S. 245

s.c. MoTEE Laii. V. Ranee . 8 W. R. 64

2. Causes of action

accruing against parties separately — Rejection of
plaint. A plaint against several defendants for
causes of action which have accrued against each of
them separately, and in respect of which they are
not jointly concerned, should be rejected Raja-
RA3I Tewar v. LrcH:\irN Prasad
B. L. R. Sup. Vol. 731 : 2 Ind. Jur. N. S. 216

8 W. R. 15

Pauch Cowree Mahtoox v. Kalee Chtjrn.
9 W. R. 490

Pegoo Jan v. Mullick Waizooddeen

18 W. R. 464

3. Separate claims

against separate parties. A suit against five defend-
ants including claims of the most miscellaneous
character against each defendant was dismissed by
the first Court on the ground of multifariousness.
The Subordinate Judge, on appeal, held that plaint-
iff was in any case entitled to a decision on one of
his claims, and further held that the suit was not
multifarious. Held, on special appeal, that the Court
could not select one claim on which to proceed when
plaintiff msisted on pressing all. Htld, also, that the
plaint was multifarious ; and the suit was properly
dismissed by the first Court. Manirtjddin Ahmed
V. Ram Chakd . . 2 B. L. R. A. C. 341

Ram Dotal Dutt v. Ram Doolai. Deb

11 W. R. 273

4. Distinct causes of

action against separate defendants. It is illegal to
join different causes of action in the same suit
against different parties where each has a distinct
and separate interest, e.g., to a joint action for the
price of timber against defendants who purchased
each one pair of timber from the plaintiff separately
from the other. Baroo Sircar v. Massim MrNOXiL
21 W. R. 206

5. — Suit to set aside

alienation by guardian to different alienees.
Several causes of action against different defendants
cannot be joined in one suit ; therefore where a suit
was brought to set aside several transactions en-
tered into by a guardian with different persons, and
no relief was sought against the guardian, it was
held that the suit was bad by reason of misjoinder^
Mata Pekshad v. Bhugmanee

1 N. W. 75 : Ed. 1873, 128

jSee RuTTA Beebee v. Dumree Lax

2 N. "W. 153

LooLoo Singh v. Rajendcr Laha.

8 W. R. 364

Golasi Mustafa Khan v. Sheo SooNDrREE
Bttrmonee . . . .10 W. R. 187

HcRRo MoNEE DossEE V. Onookool Chunder
MOOKERJEE .... 8 W. R. 461

MULTIFARIOUSNESS— conirf.

6. Suit to set aside

separate alienations. A suit to set aside two sale
transactions of different dates and made to different
vendees will be dismissed for misjoinder. Banee
Krishtjn v. Koondun T.at.t. . 2 N. W. 221

7. ^ — Joinder of causes

of action — Claim against different portions of pro-
perty. 'V^Tiere the plaintiff claims to recover posses-
sion of two distinct portions of a property from
which he has been dispossessed at different periods
and under different circumstances, and claims them
under the same title and from the same party, there
is no impropriety in the two claims being joined in
one suit. Junokee Chowdhranee v. Dwarka-
NATH Chowdhry ... 1 Hay 555

8, Separate aliena-
tions of property — One suit against several alienees.
A suit brought against a number of alienees of a
deceased member of an undivided family, for the re-
covery of famil}- property illegally alienated by him,
is not such a suit as ought to be dismissed on the
ground of multifariousness. It is most desirable
that the whole of the alienations shoiild be at once
before the Court called upon to decide the question,
in order to secure the soundness of the particular
decision, and perhaps the avoidance of discordant
decisions in different cases upon facts nearly the
same. Vasudeta Shanbhaga v. KrxEADi'XAR-
NAPAi 7 Mad. 290

9. Suit by members

of tarwad to set aside alienations by l:arn<ivan. A
suit was brought by the junior members of a tarwad,
which consisted of three stanoms and three ta varies,
against the karnavan and others, including certain
persons to whom he had alienated some tarwad
property. The plaint, as originally framed, prayed
(i) for the removal of the karnavan ; (ii) for a
declaration that defendants Nos. 2 to 8, the senior
anandravans, had forfeited their right of succession
to him ; (iii) for the appointment of the plaintiff in
his place ; (iv) for a declaration that his alienations
were invalid as against the tarwad ; and (v) for pos-
session of the property alienated. Subsequently,
the plaint was amended by the order of the Court by
striking out items 2 and 5 of the prayer, and finally
the plaintiffs further amended the plaint and sued
only for a declaration that the alienations in ques-
tion were invalid. Held, that the suit was not bad
for multifariousness. Vasudeva Shanbhaga v.
Kuleadi Narnapai, / Mad. 290, considered. Maho-
med V. Krishnan . I. L. R. 11 Mad. 106

10.

Code, s. 45

were not hinding-

Civil Procedure

Suit for declaration that alienations
Malabar law — Suit by junior
j members of tarwad. Suit by some of the juniOB
members of a Malabar tarwad against the karnavan
and the other members of the tarwad and certain
persons to whom some of the tarwad property had
i been alienated by the karnavan, for a declaration
that the alienations were not binding on the tarwad.
Held, that the suit was not bad for multifariousness.
Vasudeva Shanbhaga v. Kuleadi Xarnapai, i Mad.
290, followed. Abdul v. Ayaga

I. L. R. 12 Mad. 234

( 8661 )

DIGEST OF CASES.

( 8662 )

MULTIFARIOUSNESS— confi.

11. Misjoinder of

parties. The plaintiff, a talukdar, obtained a decree
under s. 52 of the Eent Act (Bengal Act VIII of
1869) to eject his tenant for arrears of rent and to
obtain possession of his tenure. In attempting to
execute that decree he was opposed as regards cer-
tain plots, which he alleged were comprised in the
tenure, by parties in pos.session, who instituted pro-
ceedings against him under s. 332 of the Civil Pro-
cedure Code. These proceedings resulted in their
claims being decided in their favour. The plaintifiE
thereupon instituted one suit against his judgment-
debtor and all parties who had opposed him in
such proceedings to obtain a declaration that all
the several plots claimed agaia«;t him belonged to the
tenure in respect of which he had obtained a decree
for khas posses.sion, and he also prayed for khas
possession of the various plots. It was found that
the titles relied on by the defendants, and which
had been set up by them in the proceedings under s.
332, were quite distinct one from another, and that
there had been no collision or combination
against them to keep the plaintiff out of possession,
but on the contrarj' that the defences were bond
Jidi. Hfhl, that the suit was bad for misjoinder of
causes of action, and was properly dismissed.
Ram Kakaix Dut r. A>-soda Peosad Jashi

I. L. R. 14 Caic. 681

12.

Misjoinder of

parties — Civil Procedure Code, 1S82, ss. 2S, 31,
313, ajhd 378 — Error not affecting merits of suit —
W ithdraiml of suit — Meaning of " cause of action.'^
Where a plaintiff, alleging himself to i:e entitled
On the death cf a Hindu widow to the possession of
certain immoveable property upon the death of
Buch widow, brought a joint suit against three sets
of defendants, being persons to whom the widow in
her lifetime had by separate alienations transferred
separate portions of the property claimed: — HeM.
that such suit was bad for misjoinder of both parties
and causes of action, and that s. 578 of the Code of
Civil Procedure could not be applied to cure the
defect ; but the plaintiff was allowed on terms to
withdraw his suit as against two out of the three
sets of defendants with liberty to bring a fresh suit
on the same cause of action. Vci-sudeva Shanhhaga
V. Kuleadt Xamapai, - Mad. 290 ; Banee Krishun
V. Koondun Lai, 2 N. W. 221 ; Koondun Lai v.
Eimmut Singh, 3 JN'. IT. 86 ; Narsingh Das v. Man-
gal Duhey, L L. R. 5 All. !• 3 ; Kachar Bhoj Vaija
V. Bai Rathore, I. L. R. i Bom. 2S9 ; Sudhendu
Moh'.n Roi, V. Durga Das. I. L. B. 14 Ca'c. -35 ;
and Ram Narain Dut v. Annoda Prosad Joshi, I.
L. R. 14 Calc. 1 81, referred to. GAyzsHi Lal r.
Khairati Sns-GH . . I. li. R. 16 All. 279
13. Civil Procedure

i MULTIFARIOUSNESS— con/<?.

i is necessary to prove each fact, but every fact which
is necessarj' to be proved. Where three plaintiffs
brought a joint suit for the possession of immoveable
property, in which two of them were claiming half
the property under a title by inheritance, and the
third was claiming the other half of the property in
virtue of a sale thereof to him by the first two
plaintiffs : — Held, that the suit so framed was bad for
misjoinder of causes of action, and that the plaint
should be returned, that the plaintiffs might elect
which of them should proceed with the suit. Jugo-
bundhoo Dutt v. Maseyk, W. R. {W'4), 81 ; An-
nund Chunder Ghose v. Komul Narain Ghoae,
2 W. R. 219 ; Prem Shook v. Bheekoo, 3 Agra
242 ; Cook V. Gill, L. R. 8 C. P. 10: ; Read v.
Brmxn, L. R. 22 Q. B. D. 128 ; Smurthuaite v.

' Hannay, [1894] A. C. 491 ; Chand Kour v. Partab
Singh, I. L. R. P> Calc. 98 .- L. R. 16 I. A. 15 'I ;
Murti V. Bhola Ram, I. L. R. Pi All. 1< 5 ; Xusser-

j u-anji Merwanji Panday v. Gordon, I. L. R. '> Bom.

j 2W; Ramanuja v. Devanayaka, L L. R. 8 Mad.
3iJl ; and Ram Sewak Singh v. Xakched Sin^h,
I. L. R. 4 All. 2'>1, referred to. Saldia Bibi
V. Muhammad . . I. L. R. 18 All. 131
14. Suit by one plaint-
iff claiming by inheritance and another claiming as
assignee from the first — Civil Procedure Code, ss.
31, j5, and 53. Where two plaintiffs joined in a
suit for recovery of immoveable property, the
one claiming a title by inheritance and the other a
title by assignment from the first plaintiff, it was held
that the suit was bad for misjoinder of causes of
action. Salima Bibi v. Muhammad, I. L. R. IS
All. 131, followed. Rahtm Baksh v. A-mirax Bibi
L L. R. 18 AIL 219

Code, 1882, ss. 31, 45, and 5c— Return of plaint.
The term '" cause of action " as used in ss. 31 and
45 of the Code of Civil Procedure is there used in the
same sense as it is used in English law, i.e., a cause
of action means every fact which it would be neces-
sary for the plaintiff to prove, if traversed, in order
to "support his right to the judgment of the Court.
It does not comprise every piece of evidence which

15.

Misjoinder of

parties — Civil Procedure Code, s. 53 — Suit to set
aside deed in fraud of creditors — Amendment of
plaint. Hell, that several creditors, to each of
whom separate debts were owing by the same deb-
tor, could not sue jointly for the avoidance of a deed
of gift executed by the debtor, which deed was al-
leged to have been made fraudulently with intent
to defeat or delay the executant's creditors, the
cause of action of each separate creilitor not being
the same as that of the others. Kajjo Kcae v.
Debi Dial . . . I. L. R. 18 All. 432
16. Suit for eject-

ment— Suit against several defewlants — Parties,
■joinder of. In a suit for ejectment against several
defendants who set up various titles to different
parts of the land claimed there is onlj- one cause of
action in several distinct and separate causes of ac-
tion. So held, setting aside the decree of the Dis-
trict Judge who had dismissed the suit for mis-
joinder of causes of action. Ishax Chcnder H.vzra
V. Rameswar Mondol . I. L. R. 24 Calc. 831

Dhapi v. Barhaji Deo Pebsh.vd

17.

4 C. W. N. 297
Joinder of several

plaintiffs in respect of separate causes of action —
Contribution, uit for — CiViZ Procedure Code, 1SS2,
s. 5i8 — Irregularity affecting merits. The plaintiffs.

( 86G3 )

DIGEST OF CASES.

MULTirARIOITSITESS— co?iff?.

who were husband and wife, brought a suit to
recover a certain sum of money, part of which
was alleged to have been paid "^by. plaintiff No. 1,
who was a co -sharer with the defendants in two
patnis to save the patnis from teing sold for arrears
of rent ; and the remainder by plaintiff No. 2, who
alleged that she had a subordinate miras talukh
under the two patnis granted to her by plaintiff No.
1, and that the sale would have resulted in the can-
cellation of her miras talukh. In appeal it was con-
tended by the respondents, in support of the decree
made by the Court below dismissing the claim of
plaintiff No. 2 that the claim was liable to dismissal
by reason of its involving the misjoinder of plaintiffs
with different causes of action. This objection had
been raised in the written statement, and the Court
was asked to raise an issue on the point. In
answer to this contention, it was urged by the ap-
pellants that, as the respondents went to trial
upon the merits, it was not open to them to urge
any objection like this to the frame of the suit on
appeal. Held, that the suit was bad for misjoinder
of plaintiffs, as the suit of plaintiff No. 2 ought
properly to have been brought against all the hold-
ers of the patnis, including plaintiff No. 1, and
not merely against the defendants in the suit.
Held, further, that it was open to the respondents to
raise the objection as to misjoinder in appeal.
Tarinee Churn Ghose v. Hunsman Jlui, 20 W. R.
240, distinguished. Smurthwaite v. Hannny, {1894]
A. C. 94, referred to. Mohiali Chandra Roy
Chowdhry v. Atul Chandra Chakravarti Chow'-
DHRY . . I. li. R. 24 Calc. 540

18.

Suit agaitist

different alienees. AVhere a plaintiff sued to recover
an estate in possession of several persons, w^ho held,
not collectively, but in different portions by virtue of
several auction and private sales and mortgages : —
Held, that the Court of first instance should have
dismissed the plaint for misjoinder, leaving the
plaintiff to bring separate suits in respect of the
several pieces of property in possession of each
defendant or set of defendants. Tewaree
Baghoonath Sahai v. Mahomed Nazeer

4 N. W. 108

19.

Suit for port! OTIS

MULTirARIOUSNESS— co«<r/.

wrongful possession. Held, that, there being no
common liability, the suit must be dismissed for
misjoinder. Koondun Lal v. Himmttt Singh

3 N. W. 86

21. Suit hy son,

j against several purchasers to set aside sale by father.
In a suit by a son against a father and certain pur-
chasers to obtain a declaratory decree in respect
I of certain property, the fact of each purchaser
I being concerned only in a portion of the case does
i not render the suit multifarious. Kanth Narain
Singh v. Prem Lall Patjrey . 3 W. R. 102

22. Suit against

several alienees of property. Plaintiff alleged that,
his father having died while he was a young child,
during his minority his father's widows (defend-
ants 1, 2, and 3) aliened the whole of the estate, in
portions, to different people at different times.
He therefore brought this suit against all the alienees
to recover the estate as a whole. The District
Judge dismissed the suit on the ground of misjoinder
of causes of action. Held, on appeal, that the Judge
was wrong ; that plaintiff's cause of action, the
right, w-as his relation to the family to which the
property appertained ; and on this right, if estab-
lished, and if he be not otherwise barred, he would
be entitled to recover ; the fact that various persons,
during his minority, affected to purchase portions
of the property, did not destroy the unity of his
ground of action. Sami Chetti v. Ammani Achy

7 Mad. 260

23.

Code, 1SS2,

of property in different hands. The auction-pur-
chaser of a taluk seeking to obtain possession against
the former proprietors, many of whom are cultiva-
tors holding separate possession of specific portions
and having their houses on the land, must sue them
specially for those portions to which they lay claim.
He cannot sue the whole community in the ag-
gregate for all the lands of the village. Eam-
chunder Paxh: v. Omora Churn Deb

16 W. R. 155

20. — Suit for mesne

profits in respect of several estates. Plaintiff,
having obtained a decree establishing his title to
a number of villages constituting one talukh, subse-
quently brought one suit against all the persons
severally in possession of the several estates con-
stituting the talukh for mesne profits during their

Civil Procedure

45 — Hindu law — Suit for parti-
tion— Alienees nmde parties to suit. Where a suit
was brought by a Hindu for partition of family pro-
perty against his father, brothers, and fifteen others
to whom, it was alleged, the father had improperly
alienated numerous parcels of the said property at
different times : — Held, that the better course was
for the Court to have ordered, under s. 45 of the
Code of Civil Procedure, separate trials to be held
in respect of each alienation. Subramanya v.
Sadasiva . . . . I. L. R. 8 Mad. 75

24.

Suit to recover

property sold in execution of decree. Certain pro-
perties were sold to A by private contract. Subse-
quently the properties were attached in execution of
i a decree against A's vendors and sold in execution
to various purchasers. A instituted a suit against
I his vendors, the decree-holders, and the pur-
j chasers, to set aside the execution sale. Held, that
I the suit was not defective by reason of misjoinder of
I causes of action. Rajaram Tewari v. Luchmun
I Prasad, B. L. R. Sup. Vcl. 173: 8 W. R. 15,
distinguished. Haranund Mozoomdar v.
Prosunno Chunder Biswas

I. L. R. 9 Calc. 763: 12 C. L. R. 556

25.

Suit against sev-

eral alienees of property. In a suit to have certain
properties declared liable for the amoimt of certain
decrees, plaintiff's case being that the properties
were those of his judgment-debtor, and had passed.

( 8665 )

DIGEST OF CASES.

( 8666 )

MULTIFAEIOUSNESS— co«<(?.

in fact, to his admitted representative — the other
defendants being men of straw, fraudulently set up
as ostensible purchasers : — Held, that plaintiff had

in reality but one cause of action against one party ;
that even if his suit had been multifarious, the defect
or irregularity was not, under the circumstances,
such as to warrant his being put out of Court. Wise
V. GuKEEB HossEiN Chowdby . 13 W. R, 271

26. Suit to set aside

different leases to different persons. The claims of
different parties setting up different leases from A
and thus opposing the purchaser of the estate from
A in obtaining possession, may be joined in one suit
brought to set aside their leases, and to recover the
profits which they had misappropriated. Shokoop
Chuxder Paul v. Mothoor Mohun Patx Chow-
DHRY 4 W. R. 109

27. Joinder of differ-
ent causes of action against different parties.
Under five different pottahs, A granted to B patni
leases of five different mehals. The rents of the
mehals falling into arrear, the mehals were sold on
two different dates. A purchased two of the mehals,
C imrchased two of the mehals, and D purchased
one of the mehals. In a suit brought by B against
A, C, and D, to set aside the sales on the ground
of irregularity : — Held, the suit was bad for multi-
fa riousnc-s, and must be dismissed. Imrit Nath
Jha v. Koy Dhunptjt Singh

9 B. Ii. R. 241 : 18 W. R. 288

28. — Suit for posses-
sion of different portions of property after eject-
ment. In a suit to recover possession on the ground
of dispossession by all the defendants in conse-
quence of certain Act X decisions -.—Held, that there
was but one cause of action, and that the fact that
the defendants each claimed to hold portions of the
property under different titles could not make the
suit bad for misjoinder. Ackjoo Bibee r. Lal-
lah PxAM Chtjnder Lall Sahai 23 W. R. 400

29. . Suit for decla-
ration that lands were u-ukf — Defendants holding under
distinct titles. In a suit instituted for a declara-
tion of the Court, under s. 15 of Act VIII of 1859,
that certain lands and premises in Calcutta were
wukf lands, under a certain towliatnamah exe-
cuted by the ancestor of the plaintiff, the
authenticity of which was admitted, and that the
defendants who were in possession might be re-
.strained by injunction from recovermg the rents
of, or intermeddling with, the said lands or premises,
and that it might be referred to the Court in cham-
bers to appoint a proper person to act as mutwali
under the said towliatnamah, and that such mutwali
when so appointed, might be declared entitled to
the said lands and premises, the causes of action
were alleged to have arisen at various times within
the last twelve years, and were distinct as to the
several defendants who held by different titles. On
objection having been taken to the frame of the
suit, the Couit held that it was informal, as their
was a joinder in one suit of several distinct causes
of action, and no grounds were disclosed for relief

MULTIFARIOUSNESS-con<(?.

in a suit in equity, and that the proceeding should
have been by way of ejectment against each of the
defendants. The suit was accordingly dismissed.
If the defendants in such a suit be intruders and
strangers, there is no common cause against them
and they must be turned out by action of eject-
ment against each separately. Muzhur Hossain-
V. DikobundhoSen. Bourke O. C. 8 : Cor. 94

30. iTeW, that there

was no misjoinder of different causes in a suit in-
cluding plamtiff's whole claim, where his cause of
actionj^was that the Revenue Commissioners had
taken possession of his lands and given it in pottah
to other people. In the matter of Rutxesstr
Dass 14 W. R. 381

31. ■ Suit to enforce

the right of pre-emption — Civil Procedure Code,
s. :5. Two co-sharers of a \-illage, holdiiag separate
shares, sold their shares separately to the same per-
son, upon which a third co -sharer of the village sued
them and the vendor jointly to enforce his, right of
pre-emption in respect of sales. Held, that the
frame of the suit was bad by reason of misjoinder of
defendants and causes of action, and the suit had
been properly dismissed on that ground. Bhag-
WATi Prasad Gir v. Bisdeshri Gm

I. L. R. 6 Ail. 106

32. ■ Civil Procedure

Code, IS: 7, s. -15 — Pre-emption, .-uit for — Irregu-
larity not affecting merits or jurisdiction. The sons
of E and of K aiad of S possessed proprietary rights
in two mehals of a certain mouzah. P

proprietary rights in one of those mehals. In
April 1879 the sons of R sold their proprietary
rights in both mehals to G. In August 1879 the
sons of A' sold their proprietary rights ha both
mehals to G. Later in the same month the sons of
*S' sold then' proprietary rights in both mehals to
N. G sued N to enforce a right of pre-emption in re-
spect of the sale to the latter, and obtained a decree.
P then sued to enforce a right of pre-emption in
respect of the three sales mentioned above, so far
as they related to the mehal of which he was
a co-sharer, joinmg as defendants G and A' and the
vendors to them. G alone objected in the Court
of first instance to the frame of the suit. That
Court overruled the objection and gave P a decree.
The lower Appellate Court reversed this decree on
the ground of misjoinder. Held, that in respect
of G there was no misjoinder but that, in respect
of the other defendants, there was misjoinder of
both causes of action and parties. Kallax Sixgh
V. GurDayal . . . I. L. R. 4 All. 163

33. Civil Procedure

Code, ss. 2S, 45. The judgment of the majority of
the Full Bench in Narsingh Dass v. Jilungal Dubey,
I. L. a. 5 All. 1>')3, except in its general observa-
tions as to the pi-o visions of the Civil Procedure Code
relating to joinder of parties and causes of actions,
proceeded upon and had reference to the special
circumstances of the case and to the allegations
made by the plaintiff" in his plaint, and was not in-
tended to be carried further. In a suit for possession

( 8671 )

DIGEST OF CASES.

•2 )

MULTIF ARIOU SNUSS—contd.

concern. The plaintiff sued, after deducting R71 as
his own proper share to recover the balance from
his co-defendants. The plea of misjoinder was
allowed. Beni Ram v. Hidayat Hossein

7 N. W. 82

46. Suit for contribu-

tion. In a suit against A K for contribution of
moneys paid in satisfaction of two decrees under
which the present plaintiffs and defendants were
jointly liable, and one of which decrees was founded
on an ikrar executed by the parties to the present
suit and by one, F, not a party, M'ho was expressly
excluded from liability in the decree last men-
tioned, the Judge, considering that F was liable
under the ikrar, but not liable under the bond on
which the other decree was founded, decided that
there were two distinct causes of action, and dis-
missed the suit. Held, that the cause of action on
which plaintiffs relied was simply the joint liability
of the parties under the decree, and the suit was
not multifarious. Mahomed MmzA v. Abdool
KuBEEM 25 W. -E. 41

47. — — Parties — Suit for

contribution. The purchaser of a share in a mort-
gaged estate, who has paid off the whole mortgage -
debt in order to save the estate from foreclosure, can
claim from each of the mortgagors a contribution
proportionate to his interest in the property, but
he cannot claim from the other mortgagors col-
lectively the whole amount paid by him. HmA
Chaxd v. Abdai, . . I. L. R. 1 All. 455

See Rtjjaput Rai v. Mahomed Ali Khan

5 N. W. 215

48. Joinder of jxtrties

— Contribidion, -^uit for. Where the owner of two
villages sold under a decree obtained upon a mort-
gage, claims contribution proportionately against
the owners of the other properties included in the
mortgage, and does not claim from them all col-
lectively one lump sum as contribution, he may
join all the contributors in one suit, and is not bound
to bring separate suits for contribution against the
separate owners. Hira Chand v. Abdal, I. L. R. 1
All. 455, distinguished. Rujafut Rai v. IlaJiomed
Ali Khan, 5 N. W. 'J 15 ; Tavasi Telavar v. Palani
Andi Telavar, 3 Mad. 187 ; Khema Debea v.
Kamola Kant Bukhshi, 10 B. L. R. jSQ note ; and
Eglinton v. Koylashnath Mozoomdar, W. R. (18'i-i),
303, referred to. He may also bring a single suit
in respect i f the two sales, and is not bound to bring
a separate suit in respect of each sale. IenHusain
V. Ramdai . . . I. L. E. 12 All. 110

49.

Institution of
lintiff to estdb-

suit to redeem, pending a suit

lish his title as representative of the mortgagee.
The ancestor of the defendants held as mortgagee a
10-biswa share of a mouzah ; of this share 5 biswas
were recovered and held by the plaintiffs as pro-
prietors. Of the remaining 5 biswas, 3 biswas 6f
biswansees belonged to D and 1 biswa 13J biswan-
sees to H. These 5 bisM'as were in the defendants'
possession. The plamtiffs sued to recover pos-
Bession of them, alleging that the mortgage '^ had

MULTIF AEIOUSNESS—co«<ri.

been redeemed out of the usufruct, and that they
had acquired Z)',v rights by auction-purchase in the
year 1848, and H'-^ rights by private purchase from
his sons in 1873. They also sued for mesne profits.
The defendants pleaded that they held the 5 biswas
in suit as proprietors, having acquired D's rights
by private purchase in 1847, and H's rights simi-
larly m 1851. They also pleaded that, inasmuch
as the plaintiffs had brought a suit to establish the
sale alleged to have been made to them by H^s sons,
and that suit was still penduag, the claim for pos-
session of H's share could not be mamtained ; and
they lastly pleaded that, masmuch as the plaintiffs
admitted that the rights of Z) and H were acquked
by them under separate sales, their claims to those
rights could not be joined in one suit. The plaint-
iffs replied that, assuming the claim to H's share
could not be maintained on the basis of the alleged
sale to them, they were nevertheless entitled to
possession of H's share in virtue of their right to
D's share, both shares having been jointly mort-
gaged. Held, that the plaintiffs were entitled to ask
in one suit for a determination of their claim to the
possession of the shares, and to any sur^jlus mesne
profits which might be found due in respect of them
on taking account, and that the pendency of the
suit to establish their purchase of H's share did
not deprive them of the right to sue to recover pos-
session from the mortgagees, although it might
have been necessary to determine incidentally in
the suit the question at issue in the suit respecting
the purchase. Held, also, that, if the plaintiffs estab-
lished their right to the share of D, but failed to
prove their title as purchasers of H's share, they
could not obtain possession of the share on the
ground that it was mortgaged jointly with the
shares they already held, and with the share oi D,
for, according to their own allegation, the mortgage-
debt had been redeemed, and there was no longer
any common liability which they were required to
discharge. Mohtjx Lall v. Jhummun Laix

6 N. W. 246
50. Form of suit—

Joinder of defendants — Joinder of causes of action
— Civil Procedure Code, 18S2, s. 28. A leased cer-
tain lands to B for a term of seven years commenc-
ing with the year 1288 Fasli (19th September 1880).
On the 23rd October 1883 A sold the lands to D,
who, under his purchase, became entitled to the
rents of the lands from the commencement of the
year 1291 Fasli (17th September 1883). ^Yhen
some of the mstalments of the rent for the year
1291 Fasli became due, D applied for payment
thereof to B, who informed b.im that he had paid
the whole of the rent for the year 1291 in advance
to A on the 21st May 1883. D then sued A and B
for the rent due, praying a decree for rent against
B, and in the alternative for a decree agauist A
if it should turn out that B's allegation of payment
was correct. The lower Courts found that B had
paid A in good faith, and they dismissed the suit
as against him. They also dismissed the suit as
against ^ on the ground that the claiu:s against A
and B could not be joined in one suit. On appeal
to the High Court -.—Held, that the frame of the

( 8673 )

DIGEST OF CASES.

( 8674 )

MUL TIF AKIOUSNESS— co7i/rf.

suit was unobjectionable, and that on the facts found
by the lower Courts D was entitled to a decree
against A. Mada>' Mohux L.\ll v. Holloway

I. L. R. 12 Calc. 555

51. Suit for money on

contract for money deposited on Jcistbcnuli, ami for
cancellation of kistbandi. There is no misjoinder
of causes of action in a suit for money contracted
to be paid, and for the cancellation of a kistbandi,
and for money deposited on the kistbandi. Com-
bined causes of action may be brought in the
Court which has jurisdiction to the full amount of
such combined causes of action. Krs'xoo Monee
Debia v. Shohoram Sibkar . 3 W. R. 128

Brojo Kishore Chowdhra:n'i v. Khema Soox-
daeeeDossee .... 7 W. R. 409

52. — Suit for decla-
ration of right to redeem and for damages. A plaint-
iff cannot bring, in one suit, a claim for a declara-
tion of his right to redeem, and also a claim to a de-
claration of his right to damages. Kesharee Lall
V. GOVINDRAM . . . . 4 N. W. 70

53.

Claims for ar-

rears of rent and to remove cloud on title. A claim
for rent in arrear and a claim to remove clouds
on the title to demise raised by the tenant are not
objectionable on the ground of multifariousness,
and may therefore be included in the same plaint.
Rajendtjr Kishwur Singh v. Sheopurshun

MiSSUR

1 Ind. Jur. K". S. 273 : 5 W. R. P. C. 65
10 Moo. I. A. 438

54.

Suit on hundis-

Persons parties to hundi in separate capacities.
Where the pa3-ee of a hundi, in a suit to recover
the amount of the same made four persons defend-
ants,— viz., the drawer and the acceptor of the
hundi, his o^\•n endorsee, and a party whom plaintiff
alleged to be the prim ipal, whose agent was the
drawer, — the suit was held to be a combination of
four suits in one, not allowed by the Civil Courts.
Habeel Bepaeee v. Choaljiun M-AH

10 W. R. 263

55.

Suit for parti

tion ami to eject raiyats. In a suit for partition of
the joint inam lands of a Hindu family, it was not
disputed that the plaintiffs were entitled to the
share which they claimed, but they joined as de-
fendants a number of oultivating raiyats whom they
sought to eject. The raiyats pleaded that the suit
■was bad for multifariousness. Held, that the rai-
yats were improperly joined as defendants in the
suit. Samixada Pillai v. Subba Reddiar

I. L. R. 1 Mad. 333
56. ■ Suit for viii

appropriation and breach of contract again-it two
defendants. Plaintiffs, members of a pagoda com-
mittee appointed under Act XX of 1SG3, sued defend-
ants for the recovery of R4,4S0-2-0. The plaint
alleged that, in October 1865, the first defendant
and another agreed to travel and collect subscrip-
tions for the purpose of erecting a tower at the en-

voL. m.

M ULTIP A RIOUSNESS— confcf.

trance of the pagoda in question, paying to the
pagoda R 130 a m<jnth during the period they should
be engaged in the work, irrespective of the actual
collections ; that an agreement to this effect was
executed, and first and second defendants deputed
to collect subscriptions ; that both were engaged
in the work until Novemljer 1869 ; that under the
terms of the said agreement a sura of R 6,500 was
due, of which only H 2,0 19- 14-0 were credited in the
accounts of the pagoda ; that first and .se ond de-
fendants, when rcquiied to account for the balance,
, informed the plaintiffs that they had paid to the
third defendant, the then manager of the said temple,
R5,330, and that only R 1,170 was due by them.
The present suit was accordingly filed against the
defendants for the sum of money due by them.
The Court of first instance decreed against third
defendant alone. On appeal the Civil Judge
dismissed the suit as against the third defendant
on the ground of multifariousness, he having
been sued on the ground of misappropriation,
while the cause of action against the first defendant
was breach of contract. Held, on special appeal,
that the suit was not multifarious ; that the third
' defendant was properly included in the suit as a
defendant, and did not appear to have been pre-
judiced in' his defence by the course of the proceed-
ings. Aruxachella Tevar v. Vexkatasami Xaik

7 Mad. 123

57. Civil Procedure

Code [Act X of 1S77), s. ^5. The plaintiffs sued for
a declaration that the several alienations made by
defendant Xo. 1 (a Hindu widow) to the other de-
fendants were void, and that they, the plaintiffs,
were entitled to the several properties after her
death ; also for an mjunction restraining her from
making similar unlawful alienations in the future.
HeUl, that the suit as framed was not maintainable
inasmuch as it included within it several distinct
causes of action which mider s. 45 of Act X of 1877,
could not be joined together in the same suit. The
course which should be adopted by a Court or Judge,
where there has been such a misjcnnder of causes
of action, discussed. Kachar Bhoj Vaija i-. Bai
Rathore . . . I L R 7 Bom 289

58. Property situated

in differeiU districts — Civil Procedure Code, lH,:,
ss. 2b, 31. A, B, C, and D were the proprietors
of a 2 annas 13 gumlas share in mouzah E, and
also of a 2 annas 13 gundas share in mouzah F,
both in the district of Bhaugulpore. On 19th Sep-
tember 1872 .4 mortgaged a 1 anna 4 pie share
of E to H. On the 2Uth September 1872 .4, B,
C, and D mortgaged their shares in E and F,
to'getber with property in the district of Tirhoot, to
the plaintiff. On the 24th March 1873 .4 mortgaged
his share in E and F to J. On the 13th Xovem-
ber 1874 .4 and B mortgaged their shares in E
to A'. On the 25th March 1874 J obtauied a
decree on his mortgage, and the interests of .4 and
B were purchased on the 5th January 1875 by L.
On the 17th April 1874 J/, to whom the first mort-
gage had been assigned, obtained a decree and at-
tached the property mortgaged. L objected that

12 u

( S675 )

DIGEST OF CASES.

( 8676 )

MULTI F ARIOUSNESS— cowff^.

he had already purchased the interest of A, and on
the objection being allowed, M brought a suit
against L for a declaration of priority, and obtained
a decree on the 9th August 1876. "in execution of
this decree, the property first mortgaged was sold
on the -Ith March 1878, and after satisfying the
mortgage a surplus of R 7,664 remained. After the
institution of the first suit and before L's purchase,
the plaintiff instituted a suit upon his mortgage
in the Tirhoot Court without having obtained leave
to include that portion of the mortgaged property
situate in the Bhaugulpore district. On the 17th
July 1874 a decree was made in this suit. On the
ntii January 1877 K obtained a decree on his mort-
gage, and the shares of A and B in E were sold and
purchased on the 3rd September 1877 by iV._ The
plaintiff had his decree transferred for execution to
the Bhaugulpore Court, and he attached the
surplus sale-proceeds and a 1 anna 9 gundas share
in E. This attachment was withdrawn on the
objection of L, who drew out the surplus sale-pro-
ceeds. The share purchased by N was also released
from attachment. The plaintiff now sued L, N,
and the mortgagors for a declaration that his de-
cree of the 17th July 1874 affected the E property,
to recover the surplus sale-proceeds from L, and in
case the decree should not be valid to the extent
mentioned, for a decree declaring his prior lien on
the property in E. Held, that the suit was not bad
by reason of multifariousness. Bungsee Singh

V. SOODIST LaLL

I. L. K. 7 Calo. 739 : 10 C. L. R. 263

59.

Civil Procedure

Code, s. 2'1 S. 26 of the Code of Civil Procedure
does not authorize the joinder of plaintiffs with
antagonistic claims arising out of distinct causes of
action. ^Vhere one of two widows of a deceased
Hindu and her adopted son sued as co-plaintiffs
claiming in the alternative either to recover the
whole family estate for the latter, if the adoption
was valid, or if the adoption was invalid, one-half
of the estate for the former -.—Held, that the suit
was bad for misjoinder. Lisgammal v. Chi:<na
VENK.VTAMMAL . . I. L. R. 6 Mad. 233
60. Suit for mainten-
ance and marriage expenses — Misjoinder of parties.
A Hindu widow, with her two daughters as co-
plaintiffs, sued the son of her deceased husband by
another wife, alleging that he was in possession of
his father's property, for maintenance, and for the
marriage expenses of the daughters, both of whom
were of marriageable age. The Court of first in-
stance gave the plaintiSs a decree for a monthly
allowance, and R540 to the Andow as arrears of
maintenance, and R 1,000 for the marriage expen-
ses of the daughters. Held, that, inasmuch as the
mother was the natural guardian of the two other
plaintiffs, and it was proper for them to reside with
and be provided for by her, and the common
maintenance was, so to speak, a joint matter, the
suit was not, at any rate at the stage of appeal,
open to objection on the ground of misjoinder of
parties and causes of action ; nor, looking at the
peculiar circumstances of this family, which made

MUIiTIPARIOUSNESS— cowifi.

the mother the most natural and proper person
to arrange the marriages of the two minor plaint-
iffs, was the prayer for marriage expenses im-
properly added. Tuesha v. Gopal Rai

I. L. R. 6 All. 632

61. Joinder — Civil

Procedure Code, l'^77, ss. 2S, 31, and -15 — Alter-
native relief — Parties. In a suit instituted against
six different parties, the plaintiff prayed for khas
possession of a four-anna share in a certain lot, or
in the alternative, for a decree for arrears of rent
against the defendants or such of the defendants as
should on inquiry appear to be respectively liable.
It appeared that the plaintiS had been kept out
of possession by one only of the six defendants, and
that, if he was entitled to a decree for arrears of
rent, another of the defendants was liable for a
portion only of such arrears. Held, that the suit
was not improperly framed ; that there was no
objection to the prayer for alternative relief ; and
that the suit should not have been dismissed for
misjoinder. Janokinath Mookerjee v. Ram
RuNJUN Chuckeebutty . I. L. R. 4 Calc. 949

62. Civil Procedure

Code, 1882, ss. 32, 45, and 46— Adding parties —
Striking off parties — Causes of action, joinder or
severance of — Nonjoinder or misjoinder of parties
— Practice — Procedure. C sued P to recover posses-
sion of certain lands. The plaintiff and defendant
were members of the same family, and at the hearing
of the suit the appellants, who were also members
of the family, applied to be made parties, alleging
that the suit was collusive, and that they were in
possession of some of the lands which the plaintiff
sought to recover, and wished to defend their pos-
session. The Subordinate Judge granted their ap-
plication, and made them co-defendants in the suit.
They filed written statements setting forth their
right, and time was allowed in order that the plaint-
iff might put in a counter-statement. Before the
case came on again, the Subordinate Judge had been
removed, and his successor was of opinion that the
causes of action, as against the original defendant
P and as against the new defendants (the appel-
lants), were different, and ought to be the subject
of different suits. He accordingly dismissed the
appellants from the suit under s. 45 of the Civil
Procedure Code (XIV of 1882), and ordered that
they should bear their own costs. Held, on appeal
to the High Court, that the order dismissing the
appellants from the suit should be reserved and
that s. 45 did not apply. When the parties con-
cerned, though in ditferent relation, in a particular
litigation are all before the Court, and their cases
have been stated, the Court, if it finds the several
causes as between plaintiff and the several defend-
ants cannot properly or conveniently be tried toge-
ther, should deal with them separately as sub-suits
under the title and number of the principal suit
from which they spring. The dismissal of
defendants added without objection, or the addition
of whom has been submitted to, is not contemplated,
and would tend to further needless expense. The
power given by 6. 45 does not extend to an order

( 8677 )

DIGEST OF CASES.

( 8678 )

MULTIPARIOUSNESS— con^/.
for the dismissal of defendants, and that a fresh
suit should be brought against them. Such an
order would not be one for the " separate disposal "
of the several causes of action ; it would be an
order preventing the disposal of them in the suit
before the Court. S. 45 is meant to apply to cases
in which questions arise as to the joinder or se-
verance of several causes of action against the
same defendant. For non-joinder or misjoinder of
parties provision is made in s. 32 and the plaintiff
had not resisted the joinder of the appellants as
defendants. The Subordinate Judge could only
strike out the name of a party upon an applica-
tion beinrj made, and no such application had been
made. Kdadar S.^heb v. Ciiotibibi

I. L. R. 8 Bom. 616

63. Civil Procedure

Code, 1S82, ss. 27S-2S3 — Attachment of same pro-
perty in execution of decrees obtained hij different
creditors — Claim made in one suit to attached pro-
perty under s. 278 — Order made under s. 281 —
Suit by claimant to establish right — All attaching
creditors made defendants to suit — Civil Procedure
Code, 1882, s. 28. The first and second defend-
ants obtained a decree in suit No. 1548 of
1897 against R, described as the owner of the
Wahalan Mills, and attached property on the mill
premises. Twelve other creditors also brought
twelve other similar suits and obtained decrees
against other persons who were also described as
owners of the Wahalan Mills, and attached the
«ame property. In suit No. 1548 of 1897, Pi, M
(the present plaintiff), under s. 278 of the Civil
Procedure Code (Act XIV of 1882). claimed the
property. His claim was disallowed, and he was
ordered to bring a suit under s. 283. No claim
or order was made in the case of the other twelve
suits. R 21 now sued in pursuance of the above
order to recover his property, and he included as
defendants not merely those (defendants Nos. 1
and 2) who had been plaintiffs in suit No. 1548 of
1897, but also those who had been plaintiffs in the
twelve other suits, and who had attached the pro-
perty in execution of their decrees. Held, that the
plaintiff might join in one suit as defendants persons
who had decrees against different persons without
making the suit multifarious. The right to relief
was in respect of the same matter and therefore
fulfilled the reijuiremeuts of s. 28 of the Civil Pro-
cedure Code, 1882. PvAGHTjnath Mckund v.
Saeosh Kama . . I. L. R. 23 Bom. 266

64. Civil Procedure

Code, s. 31 — Suit for removal of trustees and for
money decree. Suit by certain dikshadars or heredi-
tary trustees of the GTiitambaram temple against
others of the dikshadars praying their removal from
oflSce and for a money decree alleging that they had
been jointly guilty of misconduct in respect of tem-
ple property in their custody and had obstructed the
repair of certain shrines. Held, that the suit was
not bad for misjoinder of causes of action. Natesa
V. Ganapati . . I. L. R. 14 Mad. 103

65. . 2Iisjoinder of

parties — Suit for partition and to set aside order

M ULTIFARIOUSNESS— con<<f.
disalloicinq objection to attachment — Ciinl Proce-
dure Code, 1SS2, s. 2S3— Right of suit— Superin-
tendence of Hiqh Court. There is nothing in the
words of s. 283 of the Code of Civil Procedure
(Act XTV of 1882) to limit the party unsuccessful in
the attachment proceedings to a suit for a mere
declaration of his alleged riaht. He is at liberty
to pray, in the same suit, for any consequential
relief to which he may be entitled. A, B, and C
were members of a joint Hindu family. In execu-
tion of a decree against B a portion of the family
property was attached. Thereupon A intervened
and objected to the attachment so far as his own
share was concerned. The objection was disallow-
ed, and the property was brought to sale and pur-
chased by T). A then filed a suit (i^ to set aside
the order in the miscellaneous j^roceedings disallow-
ing his objection to the attachment, and (ii) for
a partition of the whole family property. In this
suit he imj)leaded not only his co-sharers, B and C,
but also 7). the auction-purchaser, and E, a mort-
gagee of iJ's share in the joint property. The
Subordinate Judge, holding that the suit was bad
for misjoinder of parties as well as of causes of ac-
tion, returned the plaint for amendment by striking
out the prayer for partition. On appeal this order
was confirmed by the District Judge. On ,4's
application to the High Court under s. 622 of the
Code of Civil Procedure -. — Held, that the suit was
not bad either for misjoinder of parties or for mis-
joinder of causes of action. Treating the suit as one
for partition, the auction-purchaser D and the mort-
gagee E were proper and even necessary parties.
If A established his right to partition, he would be
entitled to have the order in the miscellaneous pro-
ceedings set aside in the same suit. Held, also, that
s. 283 of the Code of Civil Procedure did not prevent
A from claiming partition in the present suit. He^d,
further, that, even if the Subordinate Judge's view
were right that the two prayers could not be joined
in one suit, his proper course was to have left it to
the plaintiff to elect which of the two prayers he
wished should be adjudicated upon by the Court.
Sadu BIX Baghu v. Ram eix Govixd

I. L. R. 16 Bom. 608
66. • Suit for parti-
tion of property of deceased by his heiro. Two
suits were brought for partition of the property of a
deceased by his heirs under the Mahomedan law:
thi- first by his widow and six childr-n in th • Court
of the Subordinate Judge ; the second by two other
children by his first wife in the Court of the District
I\Iunsif, from which Court it was transferred to the
Court of the said Subordinate Judge. The Subor-
dinate Judge having ruled that the plaintiffs in each
suit were not entitled to sue jointly, the plaints were
permitted to be amended. The first plaint was
accordingly represented in the Subordinate Court
as that of the widow ; the second also in the Subor-
dinate Court, as tliat of the first child of the first
wife ; and seven further plaints were filed in the
Subordinate Court on behalf of the remaining
chiklren, respectively. Held (on the question of
joinder), that there was no misjoinder of cause*

12 u 2

( 8679 )

DIGEST OF CASES.

MUIiTIF A-BIOUSNESS— conW.

of action. If the suits were viewed substantially
as suits against trespassers, the plaintiffs, as ten-
ants in common, were competent to sue together
in respect of what was thus a common injury to
them. If, on the other hand, the suits were suits
for partition, the plaintiffs were a fortiori entitled to
join. Assam v. Pathumma

I. L. R. 22 Mad. 494

67.

— Convplaint of

dealings by executors as act of mal-admimstration
added to claim in adunnistration suit. Where the
suit is one to administer the assets of a deceased
person, and in the claim various dealings by the
executors of the estate are complained of as acts of
maladministration and sought to be redressed, such
dealings do not constitute separate causes of action,
and such a suit is not multifarious. Nistarini
Dassi v. Nxjndo Lall Bose

I. L. R. 26 Calc. 891
3 C. W. W. 670

68.

When objection

can be taken. It is too late for defendants to object
with effect to a suit on the ground of multifarious-
ness after it has been fully tried and decided on the
merits ; but the objection is one which a defendant
has a right to raise on the settlement of issues, or
on a motion to take the plaint off the file. Ram
DoYAL DuTT V. Ramdoolal Dei^ , 11 W. R. 273

69. Misjoinder of parties and

cavises of action — Civil Procedure Code [Act XIV
of 1SS2), ss. i'S and -JS — Siiit by a fvrcliaser of pro-
ptrty for possession against a person who disposses-
sed him., as also against the vendor for the refund of
the purchase money, tvhether maintainable. On
a suit brought by the plaintiff for recovery of
possession of land against defendant No. 1 (the
person by whom the plaintiff was dispossessed)
after declarntion of hi right as purchaser from de-
fendant No. '2 ; for an order for the registration of
the plaintiff's name under the Land Reaistration
Act (Ben. Act VII of 1876) ; for mesne profits ; and
also for a refund of the purchase money from
defendant No. 2 in case the plaintiff's claim against
defendant No. I failed ; the defence was that the
suit was bad for misjoinder of parties and causes
of action. Held, that the suit was not bad for mis-
joinder of parties and causes of actibn. Hanuman
Kamat v. Hanuman Mandur, I. L. R. 19 Calc.
123, and Rajdhur Choudhry v. Kali Kistna Bhatta-
charjya, I. L. R. S Calc. 963, referred to. Sera JUL
Htjq Khan v. Abdul Rahamax (1902)

I. Ii. R. 29 Calc. 257
s.c. 6 C. W. N. 300

MULTIFARIOUSNESS— cowcW.

sary to give him the appropriate relief to which he-
is entitled. The plaintiff, alleging that he was a
joint and secured creditor of an alleged partnership,
sued to establish his priority of recourse against the
partnership assets of his debtors over the separate
creditors of the individual partners. He, however,
made other alleged joint and secured creditors, de-
fendants Nos. S to 12 and 14 to 18, party-defendants
to the suit. Held, that the suit, in so far as it
sought an adjudication of the rights of the defend-
ants as between themselves, and in particular, in so-
far as it sought to affirm the right of the defendants
Nos. 8 to 12 and 14 to 18 to priority of payment
over the separate creditors, was not maintainable.
WooPENDRA Narain Sen V. Aghore Nath Chat-
TERJEE(1905) . . . 9 C. W. K". 498

MUNICIPAL ACTS.

See Bengal Municipal Act.
See Bombay City Municipal Act.
See Bombay District Municipal Act
(Bom. Act VI of 1873) ;
( „ „ II OF 1884) ;
( „ „ III OF 1901).
See Calcutta Municipal Act.
See Calcutta Municipal Consolidation

Act.
See Madras City Municipal Act.
See Madras District MuNiciPALrriES

Act.
^ee North-Western Provinces and
OuDH Municipalities Act.

MUNICIPAL BOARD.

See Act XV of 1883, s. 40.
See Agra and Oudh Municipalities
Act (I OF 1900).

I. L. R. 28 All. 199 ; 600
See Municipal Commissioners.
See Municipal Committee.

70.

Joinder of parties

— Multifariousness — Suit, if to be confined to plaint-
iff's rights — Plaintiff seeking adjudication of the
claims of others, with his own buit, if maintainable —
Suit by .secured crtditor of partnership — Priority
over separate creditors — Other secured creditors,
if necessary parties. A plaintiff can sue to es-
tablish his own rights only and has no right to
obtain an adjudication of the claims of any de-
fendants, unless such adjudication be neces-

control over —

See Jurisdiction of Civil Court — Mu-
nicipal Bodies . 19 W. R. 309

— power of—

See N.-W. P. and Ouhd Municipalities
Act, 1883, s. 55 I. L. R. 19 All. 313

restriction on power of, to make

by-laws-

See North-Western Provinces and
Oudh Municipalities Act (N. and 0*
Act I of 1900), s. 128.

I. L. R. 24 All. 439

secretary of-

See Stamp Act, Sch. I, Art. 22.

I. L. R. 19 All.

( 8681 )

DIGEST OF CASES.

( 8682 )

TVtUNICIPAL COMMISSIONERS.

See Bombay City Municipal Act (Bom.
Act III OF 1888), ss. 231, 471.

I. L. R. 29 Bom. 35
^^€6 Collector . I. L. R. 1 Bom. 628
See Magistrate, jttrisdiction of — Spe-
CAL Acts— Act XXVI of 1850.

5 Bom. Cr. 10
8 Bom. Cr. 39

See MuNficiPAL Board.
See Municipal Corporation.
See Public Servant . 4 Bom. A. C. 93
5 Bom. Cr. 33

See Rules made under Acts.

8 Bom. Cr. 39

— appeal against assessment by-
See Jurisdiction of Civil Court — Mu-
nicipal Bodies . I. L. R. 1 Calc. 409

effect of vesting street in —

MUNICIPAL COMMISSIONERS— <:or<</.

power to institute criminal pro-

»See Public Road, Highway, Street or
Thoroughfare.

I. L. R. 25 Mad. 635

- election of —

See Calcutta Municipal Consolidation
Act s. 31.

I. L. R. 19 Calc. 192 ; 195 note ; 198
I. L. R. 22 Calc. 717

,See Jurisdiction of Civil Court — Muni-
cipal Bodies . I. L. R. 24 Calc. 107

notice of suit against—

See Appellate Court— Objections
taken for First Tdie on Appeal —
Special Cases — Notice of Suit.

I. Ii. R. 1 All. 269

See Bengal Municipal Act, 1864, ss. 77,

81 . . 7 W. R. 92

9 W. R. 279 ; 562

See Madras Towns Improvement Act,
1871, s. 168 . I. L. R. 2 Mad. 124

See Notice of Suit.

— order of District Judge as to—

See Superintendence of High Court —
Civn, Procedure Code, JS82, s. 622.
I. L. R. 21 Bom. 279

power to administer oath —

Set Bengal Municipal Act, 1864, s. (>.

19 W. R. 309

power to close or divert public

highway-

See Bengal Municifai. Act, 1864.

I. L. R. 2 Calc. 425

ceedings-

See Bengal Municipal Act, 1864, s. 133.
I. L. R. 22 Calc. 131

suit against-

.SeeBENG.iL Municipal Act, 1864, ss. 77,
87 . . 7 W. R. 92

5 B. L. R. Ap. 50
I. L. R. 6 Calc. 8
See Res Judicata — Judgment on Preli-
minary POINTS . 5 B. li. R. Ap. 50
See Right of Suit — Municipal Officers,
SUITS against.

1. Liability of Commissioners
for negligence or misconduct— /^c/k/. Ad III
of 1S6L Municipal Commissioners under Bengal
Act III of 1864 and their servants incur no pei-sonal
responsibility for what they do so long as they act
in the line of their duty. But if they do, or order
to be done, that which is not within the scope of
their authority or if they are guilty of negligence
or misconduct in doing that which they are em-
powered to do, then they render themselves per-
sonally liable to an action. There is no special
law extending to members of Municipalities which
protects them so long as thev act bond fi'h. Sr.ny-
der Lall v. Baillie . ' . 24 W. R. 287

2. Liability of Corporation for

breach of statutory duty — Calcutta .Mu»ici-
paJity Ad {Bauj. Ad IV of lS7'i), ss. 1S9, 191,
213, 252 — Ohstrudion in public icay — Damagei.
Under s. 189 of Bengal Act IV of 1S76, the roads
and streets in Calcutta are vested in the Commis-
sioners of the Corporation of the Town of Calcutta,
and s. 191 i>rovides that the " Commissioners shall,
so far as the municipal funds permit, from time to
time, cause the public streets to be maintained and
repaired, and for such purpose may do all things
necessary for the public safety and convenience."
Ss. 252 and 213 respectively direct the Commis-
sioners on opening up the roads, and persons to
whom they have given permission so to do, to fence
and light any excavations so made. In March 1882
the Commissioners, at the reque-^t of the Executive
Engineer of the Public Works Department of the
Government of Bengal, permitted the latter to open
up one of the roads in Calcutta for the purpose of
carrying ofi surplus wattr from a tank whi:h was
uider The charge and control of such Executive
Engineer aforesaid, and for the purpose of connect-
ing°the tank with the public sewer. Permi.-ision
was grantixl on the usual condition that a con-
tractor licensed to do such works by the Municipality
(but who was not in their employ further than that
the Commissioners had power to cancel his license,
nor was he in the employ of the Secretary of State
for India), should be employed in the work.
Such a contractor was employed by the Secretary
of State and obtained a license from the Commis-
sioners empowering him to break open the road.

( 8683 )

DIGEST OF CASES.

MUNICIPAL COMMISSIONERS— «oncR

The road was open, but was left unfenced and
insufficiently lighted at night. The plaintiff, in
driving along this road after dusk, drove into the
hole and was badly injured, and sued the Corpora-
tion, the contractor, and the Secretary of State for
damages. Held by the Court of first instance (i)
that the Secretary of State was not liable, because he
came within the established rule that one who
employs another to do what is perfectly legal must
be presumed to employ that other to do this m a
legal way ; (ii) that the Corporation, who had a
statutory obligation imposed upon them to repair
and maintain the roads, were liable to the plaintift
for a breach of their statutory duty ; that where
there is a dangerous obstruction, a jortion where
such dangerous obstruction results from a permis-
sion accorded by the Commissioners, they are to be
held liable for damage caused by it ; (iii) that the
contractor also was liable. Held, on appeal, that the
fact that the Commissioners gave permission to
another person to open up the road, although for a
perfectly proper purpose, would not relieve them
from their statutory duty under s. 191 of Bengal
Act IV of 1876. Corporation of Town of
Calcutta v. Anderson . I. Ij. R. 10 Cale. 445

3. Commissioner acting as

Magistrate, power of— Proccdvrc— Proceeding
agamst absent party. A Municipal Commissioner,
acting as a Magistrate, may enquire into a charge of
the breach of a bye-law and may punish the accused
party by inflicting a fine ; but the procedure to be
followed is that of the Code of Criminal Procedure,
which does not contemplate a proceeding against an
absent party ex parte. Tariney Churn Bose v.
Municipal Commissioners of Sekampoee

24 W. R. Cr. 25

4, Editor of newspaper— TrmZ

of case on which he has written strong opinion in
newspaper. The High Court declined to interfere
under s. 296, Act X of 1872, with the order of a
Municipal Commissioner, who was the editor of a
newspaper, who had, prior to the disposal of the
case, made very strong remarks on the case in the
newspaper of which he was the editor, holding that
there" was nothing illegal in his order ; though he
would have exercised a -^-ise discretion if he had
refused to sit as one of the Commissioners in the
case. Queen v. Tarinee Churn Bose.

21 W. R. Cr. 31

MUNICIPAI, COMMITTEE.

See Right of Suit — Municipal Offi-
cers, Suits against.

See Right of Suit — Obstruction to
Public Highway I. L. R. 1 All. 557

MUNICIPAL CORPORATION.

See Calcutta Municipal Consolidation
Act (II of 1888), ss. 247, 250, 427.

I. L. R. 30 Calc. 317

See Municipal Board.

See Municipal Commissioners.

MUNICIPAL CORPORATION-^oncZi.

See Sanction for Prosecution — Wherk

sanction is necessary or otherwise.

L L. R. 3 Caic. 758

- extension of time of prosecution

by-

See Prosecution.

I. L. R. 34 Calc. 909
MUNICIPAL COURTS.

jurisdiction of-

See Act of State.
MUNICIPAL DEBENTURES.

Agreement to exchange land for

debentures — Quit-rent — Liahility for interest
on debentures. The Port Canning Municipal Com-
missioners invited 1( ans on debentures convertible
into leasehold titles to lands in the town. The
Port Canning Land Company subscribed to the loan
declaring their desire to take land in lieu of the
debentures. After the debentures were issued, a
1 correspondence commenced between the parties with
j the object of effecting the conversion, in which
I correspondence the Commissioners intimated to the
I Company the construction they put upon the Com-
i pany's tender, viz., that they elected to take land
to the full value of their debentures. The Com-
missioners also intimated to the Company that the
latter had s.-lected lots am(.unting to ti part only of
their debentures, and required them to select others
giving notice at the same time that they did not
consider themselves liable to pay interest. The
i Company after this proposed to defer exchanging
the debentures till their due date, and if the Com-
missioners consented, net to call for the interest in
the meantime, but agreeing to pay a quit-rent
equivalent to the interest. The Commissioners
agreed to this and asked the Company to declare
the lots which they would receive in commutation.
A selection was made, but not in accordance with
the contract : the lots selected being of more value
than the debentures. The Commissioners then
proposed that the Company should return the de-
bentures, and pay quit-rent upon the additional
lots. This was not accepted, but the matter was
left in an imperfect state. The Port Canning Land
Company subsequently brought an action against
the Port Canning Municipality for two years' in-
terest on the debentures. Held, that the non-
acceptance of the proposal as to the additional lots
could nut affect the previous agreement to exchange
debentures then held for equivalent lots ; and that
such previous agreement had been made involving
quit-rent which extinguished the interest. Port
Canning Land Company v. Smith

21 W. R. 315 : L. R. 1 1. A. 124

MUNICIPAL ELECTION.

See Bombay District Municipal Act
(Bom. Ill OF 1901).

I. L. R. 30 Bom. 409..

See Election.

( 8685 )

DIGEST OF CASES.

( 8686 )

MTTNICIPAIi ELECTION— cowR

See Calcutta Municipal Consolida-
tion Act, s. 31.

I. L. R. 19 Calc. 192, 195 note, 198
I. L. R. 22 Calc. 717

See Jurisdiction of Civil Court — Muxi-
cip.iL Bodies . I. L. R. 24 Calc. 107
See :>iUMciPALiTY . I. li. R. 31 Bom. 37
MUNICIPAL INSPECTOR.

See Public Servant.

I. L. R. 13 Mad. 131

MUNICIPAL NOTICE.

See XoTicE of Suit.
MUNICIPAL OFFICERS.

See Jurisdiction of Civil Court —

Municipal Bodies.
See Right of Suit — Municipal Offi-
cers, SUITS against.

complaints by-

MUJNICIPAL TAX.

See Tax.
MUNICIPALITY.

See Jurisdiction of Civil Court— Muni-
cipal Bodies.

See Parties— Parties to Suits— Gov-
ernment . I. L. R. 15 Mad. 292

See Right of Suit— Municipal Officers,
Suits against.

See Court Fees Act, 1870, s. 19.

I. L, R. 16 Mad. 423

See BoJiBAY Municipal Act, 1865, s. 2.

9 Bom. 217

See Bombay District Municipal Act.

[ I. L. R. SO Bom. 403
See Calcutta, Bengal, jNIadras and

Bombay Municipal Acts.
See Municipal Board.
See Municipal Commissioners.
Chairman of —

See High Court, Jurisdiction of—
Calcutta — Civil.

I. L. R. 17 Caic. 329
I. L. R. 21 Ail. 348

See Magistrate, Jurisdiction of —
General Jurisdiction.

I. L. R. 23 Cal?. 44

See Negligence.

I. L. R. 33 Bom. 393

See Penal Code, ss. 21, 186.

I. L. R. 33 Bom. 213

— suit against—

MUNICIPALITY-/:on? ;.

suit by —

Sec Limitation Act, 1877, Art. 140.

I. L. R. 19 Mad. 154

!• Election of Coun-
cillor— Bye-election — Ofllcer appointed to receive
nomination papers — Return hy the officer of plaintiff's
nomiwttion papers — Suit for injunction and de-
claration— Malice. The plaintiff, who was a coun-
cillor of Surat Municipality-, disabled himself from
continuing to be a councillor by virtue of clause (h)
(ii) of sub-s. {2) of s. 15 of the District Municipal
Act (Bom. Act III of 1901) for having acted as a
councillor in a matter in which he had been profes-
siona'ly interested as a pleader on behalf of a client.
On the plaintiff being thus unseated, a vacancy
was created and a bye-election was ordered to be
held. The defendant was the officer appointed by
the Collector to receive nomination papers for the
bj^e-election. The plaintiff, who was duly quali-
fied by s. 12 (/) of the District Municipal Act (Bom.
Act III of 1901) to be a candidate, was n minated
as a candidate by duly qualified electors. The
officer appointed to receive the nomination papers,
received the papers of the plaintiff's nomination,
and having heard the plaintiff, returned his nomi-
nation papers on the ground that lie, having been
disabled, could not stand as a candidate at the bye-
election to fill up a vacancy created by himself.
The plaintiff thereupon brought a suit against the
officer for an injunction that the defendant should
enter the plaintiff's name in the list of candidates to
be publishi'd by the defendant and for a declaration
that he was duly qualified lo apjx^ar as a candidate.
The plaintiff subsequently i-laimed damages in
lieu of injunction. The first Court found that the
plaintiff was not entitled to an injunction, but it
awarded to him damages to the extent of H 150
owing t(j the defendant's wrongful act. On appeal
by tiie defendant, the Judge reversed the decree
and dismissed the suit on the ground that malice
on the part of the defendant was necessary to s ch
a suit and that no such malice was proved. Held,
confirming the decree on second appeal by the plaint-
iff, that in the absence of malice no such suit c mid
lie against the defendant. CucxiL.u. v. Kirpa-
SHANKAK (1906) . . I. L. R. 31 Bom. 37

2. Surat City, Muni-
cipality— Rides framed in the year V.H'o, Rules 1 (:.'),
4 (a), (/) (•->), (o), 7 — water-supply by the Municipal-
jty — Xotice to cut off the urtter-supply — U'ris^e —
Dmne-stic purposes — Le/jitimate household purpose.* —
Use of water by bond pd>: occupiers of a }iwi<e. The
plaintiff, an owner and occupier of a house in
Surat, brought a suit against the Surat City Muni-
cipality for an injunction restraining the Munici-
pality from cutting off the water-supply, which
had been provided for him under certain rules ia
force in the year 1898. The MuniciiMliiy, as defend-
ants, conteniled that under tlie rules, which they
had made in the year 1905, they were entitled to
cut off the water-connection witli the plaintiff's
house because he allow^il the water to run
to waste, inasmuch as it was usetl by families of
tenants, who were not of the family of the plaintiff.

( 8687 )

DIGEST OF CASES.

( 8688 )

MUNICIPAIilTY— co?ic?f/.

Held, that under the rules framed by the Surat City
Municipality in the j-ear 1905, so long as the plaint-
iff occupied a house not inhabited by more than
three families (Rule 7), he was entitled to the water-
supply, which he had enjoyed. Held, further, that
the application of the words "run to waste" in
rule 4, clause (/) {■■•), depended upon the construc-
tion of the definition of " domestic purposes ' ' in
lule 1 (2). The definition of ' domestic purposes "
meant nothing more or less than legitimate house-
hold purposes. The user for legitimate household
purposes by more than one family in the house was
not waste within the meaning of the definition.
SuEAT City Municipality v. Tyabji (1908)

I. L. R. 32 Bom. 460

MVlHSlF—contd.

MUNSIF.

See Bengal Tenancy Act (VIII of 1885),
s. 153 . I. L. R. 35 Calc. 547

See JuEiSDiCTioN.

I. L. R. 31 Calc. 1057

See Magistrate, Jurisdiction of— With-
drawal OF Cases.

I. li. R. 15 Mad. 94
See Provincial Small Cause Courts
Act (IX of 1887), s. 32.

12 C. W. N. 167

See Witness — Civil Cases — Person com-
petent OR NOT TO BE W^ITNESS.

6 Mad. Ap. 42
— dismissal of—

See English Committee of High Court.
10 B. L. R. 79, 80, 82 note

jurisdiction of^

See Execution of Decree — Transfer

OF Decree for Execution and Power

of Court, etc . 23 W. R. 233

2 C. L. R. 334

I. L. R. 7 Mad. 397

I. L. R. 12 Calc. 307

I. L. R. 15 Calc. 365

I. L. R. 17 Mad. 309

I. L. R. 22 Calc. 764

I. L. R. 25 Calc. 315

See Public Servant . 4 Bom. A. C. 93

See Rent, Suit for — By what Court.

TRIABLE . I, L. R. 30 Calc. 453

See Res Judicata — Competent Court —
General Cases.

See Sale in Execution of Decree —
Invalid Sales — Want of Jurisdic-
tion.

See Small Cause Court, Mofussil —
Jurisdiction — General Cases.

4 Mad. 334

5 Mad. 45 ; 287

I. L. R. 13 Mad. 145

See Subordinate Judge, Jurisdiction of

I. li. R. 7 Ail. 230

I. L. R. 14 All. 348

I. L. R. 17 Calc. 155

I. L. R. 14 Mad. 183

See Transfer of Civil Case — General

Cases . . . 13 W. R. 399

6 Mad. 18

25 W. R. 219

I. L. R. 8 Mad. 500

I. L. R. 13 All. 324

See Valuation of Suit — Suits.

Execution proceedings be-

fore Act XVI of 1868— Suit pending on aboli-
tion of office. Where execution had been issued by
a Sudder Ameen, and, notwithstanding the proceed-
ings were struck off the file, a consequent attach-
ment was still pending when that office was abo-
lished (by Act XVI of 1868) .—Held, that the Sudder
•Munsif, who succeeded to th'? jurisdiction of the
Sudder Ameen, had power to take up the case and
issue execution proceedings. Sreenath Banerjee
V. PuRRUM SooKH Chundee . 25 W, R. 105

2. Suit pending when Act XVI

of 1868 came into operation — A suit, of which
the subject-matter did not exceed in amount or
value R 1,000, instituted one day after Act XVI of
1868 received the assent of the Governor General in
Council, was held to be cognizable by the local
Munsif, aiid not by the Sudder Munsif of the dis-
trict. Bungshee Budden Dey v. Tarinee Churn
Dey 14 W. R. 375

Appeal pending when Act

XVI of 1868 came into operation— ^.r^ca^o?!
of decree— Act X VI of 1S6S, s. 12. At the time of
the passing of Act XVI of 1868, which abolished the
Courts of Sudder Ameens, an appeal was pending
against the decree of the Sudder Ameen which re-
sulted in a modified decree afterwards executed by
the Sudder Munsif. Helrl. that, although the appeal
was pending in a superior Court, yet the proceedings
in the suit were pending in the original Court of trial
within the meaning of s. 12, and the Sudder Munsif 's
Court was the only Court which had jurisdiction
to execute the decree. Gobind Singh v. Munno
Ram Doss . . . . 19 W. R. 414

4. Suit against public servant

for acts doae by him officially. A Munsif
had not jurisdiction to try an action brought against
a public servant for acts done by him in his official
capicity. Semble . — The only judicial officers
having jurisdiction to try such cases would be the
Judge or Assistant Judge of the district in which
the suit arose. Vallabhram Jagjivan v. Wood-
house .... 1 Bom. 144

5. Suit for rent — Dekkan Agricul-
turists' Reliff Ad, XVII of 1S7 9— Village Munsif.
A Village Munsif has no jurisdiction to try a suit for
rent under the Dekkan Agriculturists' Relief Act.
XVII of 1879. Vithal Ramchandra v. Gangaram
ViTHOJi . . . I. Ii. R. 5 Bom. 180

DIGEST OF CASES.

( 8690 )

MUNSIF— co7if(?.

6, Order enforcing award as

to determination of rent. A Munsif has no
jurisdiction to entertain an application anil pass an
order on the enforcement of an arbitration award re-
lating to the determination of rent. When a Mun- '
sif acts without jurisdiction, the cjuestion may be
the subject of an appeal to the Appellate Court of
the district. Altaf Hossein v. Grish CiirxDER '
Roy 15 W. R. 556

Suit for dissolution of part-

nership — Jurisdiction — A rb itrntion — Finnlitij of
decree in accordance unlh award. A suit for dis-
solution of a partnership, taking the accounts of the
firm, and a declaration of the plaintiff's right to a
certain share in the debts due to the firm, was, with
reference to the value of the subject-matter of the
suit, instituted in the Court of a Munsif. The mat-
ters in difference in the suit were eventually refer-
red to arbitration under Ch. XXXVII of the Code of
Civil Procedure, and an award was made declaring
the plaintiff entitled to recover a certain sum from
the defendant. Judgment and a decree were given
in accordance with the award. Held, that, the
award notwithstanding, the cjuestion whether the
suit was cognizable in the Munsif's Court was enter-
tainable. Bhagirath v. Ra'nghidmn, I. L. R. 4 All.
283, referred to. Kalian Das v. Ganga Sahai
T. L. R. 5 Ail. 500

8. District 'M.ixnsif— Villages under

attadiment for breach of duty by karnam — Fine. A
District Munsif's Court has not authority to inflict
fines on karnams of villages which are under at-
tachment by that Court for breach of duty on the
karnam' s part. Ramakistxam v. Ragavachari
I. L. R. 3 Mad. 406

Power to take voluntary

depositions — Application to restore appeal.
A Munsif has no power to take voluntary deposi-
tions, e.g., the deposition of a party to show his ill-
ness where he wishes for restoration of an appeal
in the High Court which has been struck off for his
absence from that cause. In the matlrr of Hie
petition of KuLxo I\jiondkar . 7 W. R. 47

10, Power to transfer suit —

JIad. Beg. IV of ISl , s. 26— Village Munsif—
Jurisdiction. In a suit under Regulation IV of
1816, the defendant having objected to the Village
Munsif trying the suit oa the ground of personal
hostility, the Munsif transferred the suit to another
Village Munsif. Held, that the transfer was illegal.
Per HuTCHixs, J. — SevMe :— In such a case the
Village Munsif should report the facts to the Dis-
trict Court, and the District Judge should transfer
the case for trial to another Village Munsif. Laksii-
MAKKA V. Bali , . I. L. R. 8 Mad. 500

11. Attachment and sale of land

—Mad. Reg. IV of 1S16, s. 30— Village Munsif—
Decree — Execution. Immoveable property can be
attached and sold in execution of a decree of a vil-
lage Munsif under the provisions of s. 30 of Re-
gulation IV of 1816. Ramasami Chetti r. Ang.vppa
Chetti . . . I. L. R. 7 Mad. 220

MUNSIF— cow^rf.

12. Power of Village Munsif

to administer oath to witness — Mad. Reg.
IV of iSP) — Crimimd Procedure Code, s. 19o —
Sanction for prosecution of witness for perjury by
Village Munsif. V was tried and convicted under
s. 193 of the Penal Code for giving false eWdence
before the Court of a Village Munsif in a suit in
which V was defendant. The Village Munsif sanc-
tioned the prosecution of V under s. 195 of the Code
of Criminal Procedure. On appeal, the Sessions
Judge acquitted Ton the grounds that a Village
Munsif had no power to administer an oath to V
(the case not being one in which either party was
willing to allow the cause to be settled by the oath
of the other) and because s. 195 of the Code of
Criminal Procedure did not apply. Held, that both
objections to the conviction were bad in law.
Queex-Empress v. Vexkayya

I. L. R. 11 Mad. 375

13.

Village Munsifs— Crim/«a/
ss. 1, ISO, iS2— Contempt of

Procedure Code,

Court. Ss. 480-482 of the Code of Criminal Proce-
dure do not apply to Village Munsifs. Queen"-
Ejipress v. Venkatasami

I. L. R. 15 Mad. 131

14.

Madras Village

Courts Act (Mad. Act I of 18S9), s. 13 (3>— " Land,"
meaning of — Suit for rent of house. In Madras Act I
of 1889, s. 13, proviso 3, the word " land " includes
land covered by a house, and consequently a suit
for house-rent, unless due under a written contract
signed by the defendant, is not cognizable in a Vil-
lage Munsif's Court. Narayaxa.mma v. Kamak-
SHAMMA . . . I. L. R. 20 Mad. 21

15.

Village J/iOi-yi'/'s

Court — Succession Certificnte Act — Act VII of ISS'K
The provisions of the Succession Certificate Act
apply to suits in a Village Munsifs Court. Rasibi
Amvat. v. Olaga Padayachi

I. L. R. 21 Mad. 115

16.

Suit for share of annual

allowance — Question of title. In an action brought
to recover a third share of arrears of varshasan or
annual allowance paid by the Gaikwar of Baroda
to the defendant, and in which the plaintiff alleged
that he was entitled to a third share — Held, that
such an action can be maintained inaMunsilf's
Court, although it may be necessan,- to determine
the title of the plaintiff to share in such varshasan.

RaT.\N ShANKAK KeV.\SHANKAR v. GrLABSIIANKAR

Lalshaxkar ... 4 Bom. A. C. 173

17. Suit for money charged on

immoveable property. Hild, that a suit for
money charged on immoveable property in which
the money tlid not exceed Hl.OCK.!, alUK>ugh the
value of the immnvcablc property did exceed that
sum, was cognizable by a Munsif, provided the pro-
perty was situate within the local liiuits of his
jurisdiction. J.vxKi Das v. Badri Nath

I. L. R. 2 AIL 698

18.

bond

- . Suit on mortgage

mortgaging aayer coupensation — Malikana —

( 8691 )

DIGEST OF CASES.

( 8692 )

■KTINSlT—contd.

Intere-ot in immoveable property — Civil Procedure
Code, s. 16—Beng. Reg. XXVII of 1793. A
mortgaged at Calcutta to B his sayer compensation
payable at the General Treasury at Calcutta in re-
spect of a certain hat within the Diamond Harbour
sub-division. In a suit to enforce the mortgage-
bond in the Court of the Munsif of Diamond Har-
bour : — Held, that scvjer compensation did not
partake of the nature of malikana, that it was not
immoveable property or any interest in immoveable
property within the meaning of s. 16 of the Code of
Civil Procedure, and that therefore the Munsif had
no jurisdiction to entertain the suit. Bungsho
Dhur Bisiuas v. Mudhoo Mohuldas, 21 W. R. SS3
distiiiguished. Subendro Prosad Bhuttachabji
V. Kedar Nath Bhattachaeji

I. L. R. 19 Calc. 8

19. Suit for redemption of usu-
fructuary ro.OYtga,ge—Questio7i of title, ^¥here
the question in dispute in a suit for redemption of
a usufructuary mortgage is not only whether the
property has been redeemed out of the usufruct,
but whether the property and the right to redeem
belongs to the plaintiff, and the value of the pro-
perty exceeds « 1,000, such suit is not cognizable by
a Munsif. Kalian Das v. Nawal Si:sgh

I. L. R. 1 All. 620

•NLVNSlF—cojitd.

1861 does not debar a District Munsif's Court from
entertaining a suit by a Hindu father to recover
possession of his minor son alleged to be illegally
detained by the defendant. Krishna v. PvEade

I. L. E. 9 Mad. 31

23. Suit for dismissal of a

20. Mortgage set up by defend-
ant exceeding limit of jurisdiction— Coitrt
Fees Act, s. 7, cl. !J — Ejectme7it — Madras Civil Courts
Act {III of 1S73). In a suit brought in a District
Munsif's Court to recover several parcels of land
from the defendant, plaintiff alleged that defendant
held a valid mortgage of R206 on two parcels which
he oifered to redeem. As to the other parcels,
he alleged that, if any charges had been created in
defendant's favour over them by his predecessor in
title, such charges were invalid. The suit, as
valued by the plaintiS, was within the pecuniary
limit of the Munsif's jurisdiction. Defendant
pleaded that he held a mortgage for R 3,000 over
the land, and therefore the Munsif's Court had no
jurisdiction to try the suit. The Munsif tried the
question of the validity of the defendant's mort-
gage, and decreed possession to plaintifli on pay-
ment of R906 due on account of mortgages and
lil,647-ll-9 on account of improvements. On ap-
peal, the District Judge held tliat the Munsif had no
jurisdiction, reversed the decree, and ordered the
plaint to be returned to be presented in the proper
Court. Held, that the Munsif's Court had juris-
diction. Chandu v. Kombi . I. Ii. R. 9 Mad. 208

21. Suit regarding minors — Act

IX of IS ■■!. Suits regarding minors are cognizable
by principal Ci\al Courts of districts. Munsif < have
no jurisdiction to try them. Kristo Chunder

ACHARJEE V. KaSHEE ThAKOORANEE

23 W. R. 340

Harasundari Baistabi v. Jayadurga Baistabi
4 B. Ii. R. Ap. 36 : 13 W. R. 112

22. Act IX of IS 1—

Civil Procedure Code, ss. 1 1, 15 — Parent and child —
Suit for recovery of minor by parent. Act IX of

zamindari karnam — Mad. Reg. XXV of ISO-?,
s. 11— Mad. Reg. XXIX of 18'J2, ss. 5, 7, 10, If),
IS. A suit by a zamindar for the dismissial of a
zamindari karnam cannot be entertained by a
District Munsif. The subordinate Court, and the
1 District Court where there is no subordinate Court,
is the tribunal that has taken the place of the
i Court of Adawlut of 1802. Vexk-^tanarasimha
V. Stjryanarayana . I. L. R. 12 Mad. 188

j 24. Suit for office of karnam—

': Mad. Reg. XXIX of ISUJ, s. 7— District Court,
i Jurisdiction of. A suit to establish plaintiii's right
' to, and to recover possession of, the office of karnam,
and for the restoration of the inam lands, and for
damages, was brought in the Court of the District
Munsif. Held, that it was properly so brought.
Jagannatha Pillai v. Sxjbbaraya Pillai

I. L. R. 22 Mad. 340

25. Suit to recover share of

i inheritance — Madras Civil Courts Act (III of
1S73), s. 12—Subjeot-7natter of suit. The plaintiff
sued to be declared an heir to a deceased ;Maho-
medan and to recover her share of the inheritance,
the share claimed being less than H2,500, while the
value of the whole estate exceeded that amount.
Held, that the suit was within the jurisdiction of a
District Munsif. Khansa Bibi v. Syed Abba

I. L. R. 11 Mad. 140

20. Suit for partition and

mesne profits — Madras Civil Courts. Act, 1S73 —
Civi' Procedure Code, s. oi-J. N sued S and others
for partition of a share of certain land, and claimed
mesne profits from other defendants who were
tenants of t le land. S obtained a decree by consent
for her share, and a sum of 99 rupees was decreed to
her against the tenants for mesne profits. Agamst
this decree the tenants appealed. The Subordinate
Judge, finding that the subject-matter of the suit,
the land of which partition was claimed, exceeded the
jurisdiction of the Munsif, reversed the decree of the
Munsif, and directed the plaint to be returned for
presentation in the proper Court. It was con-
tended, on appeal to the High Court, that the Subor-
dinate Judge could not set aside the decree against
the tenants for mesne profits. Held, that, as the
Muns f 's Court had no jurisdiction to entertain the
suit for partition, it could make no decree for mesne
profits. Nagamma v. Subba

. I. Ii. R. 11 Mad. 197

27. Suit for share of undivided

property— J/acZras Civil Courts Act (Mad. Act
III of 1S73), s. 12— Suits Valuation Act (VII of
1SS7), s. S. Persons entitled to a share in certain
lands of a village only part of which was held in
severalty, executed a mortgage of part of the lands
due to their share. The mortgage contained a de-
scription of the land comprised therein by paimash.

( 86'j3 )

DIGE8T OF LASK«.

MUNSIF— conW.;

numbers and admeasurement. The mortgaged
property was brought to sale in execution of a
mortgage-decree, and -was purchased by the present
plaintiti. The plaintiff now sued for the apporti( n-
ment and possession of the share to which he was
entitled, and stated the value of the suit to be the
value of the share claimed by him, viz., fi 1,870,
and not that of the entire property. The defend -
dants were the mortgagors and the other persons
interested in the land, their respective shares not
having been ascertained and demarcated. Held,
that the suit was within the jurisdiction of a District
Munsif. Ghakrapaxi Asari v. Narasixga Rait
I. Ii. R. 19 Mad. 66

28. Bemedy by ordinary suit

haTTed— Madras Forest Act, 1SS2, s. If:'— Proce-
dure. Where by an Act of the Legislature powers are
given to any person for a public purpose from which
an indimlual may receive mjury, if the mode of
redressing the injury is pointed out by the Statute,
the ordinary jurisdiction of Civil Courts i, ousted,
and in the case of injury the party cannot proceed by
action. Plauatiti sued in a Munsif 's Court to cancel
the decision of a forest oiiicer confirmed by a Dis-
trict Judge under s. 1 of the Madras Forest Act,
1882, and to recover certain land, a claim to which
had been rejected under the said section. Held,
that the Munsif had no jurisdiction to entertain the
suit. Ramachaxdea v. Secretary of State for
India . . . I. L. R. 12 Mad. 105

29. Mad. Act IV of 1862— Small

Cause Court Judge— Act XI of 1S65. A District
Munsif is a Small Cause Court Judge under JIadra-;
Act IV of l.S(i3 within Act XI of lS65. Rarajai
KujiABA Venkata Perumal Raj v. Kaxxiapfah.
ZamdsDAK of Karvatimuggar v. Kaxxiafpah

4 Mad. 149

30. Madras Act IV of

1863 did not take away the former jurisdiction
given to the District Munsif in respect of causes of
action arising within the limits of his jurisdiction.
Magam Timmaya v. Tangattur Kaxd.ajppa

2 Mad. 82

31. Suit for money

paid for use of undivided brother. Plaintifi sued for
R31-2-3i, money paid for the use of defendant,
his undivided brother. The defence was that
plaintiti held family property, defendant's share of
which exceed in value the debt sued for, as also the
amount for which a suit would lie before a ilunsif
under Act IV of 1863. Held, that, provided it was
proved in evidence that the money was paid out of
plaintifi's self-acquired property, the suit was cog-
nizable by the Munsif under Act IV of 1863. Held.
also, that the share of the defendant being both in
nature and amount beyond the District Munsif's
Small Cause jurisdiction, it was not available as a
defence, even if it formed a fit object of sct-ufi.
Kattapebumal Pillai v. Panchanadam Fillai

3 Mad. 339

32. Suit against Government —

Sviall Cause Court Act, XI of IS' 5, s. 9. A Munsif
has jurisdiction to try a suit against Government

MUNSIF— con^rf.

which, but for s. 9, Act XI of 1865, would be cog-
nizable by a Court of Small Causes. Komal-
OODEEN" Sheikh v. Collector of Midn'apore

11 W. R. 233

33. Suit cognizable in Small

Cause Court — Defendant residing out of jurisdic-
tion. A Munsif has no jurisdiction as a Small
Cause Court to take cognizance of a suit against
defendants not resident within his jurisdiction.
Anonymous ... 3 Mad. Ap. 24

Correcting, as to this point, Magam Thimaya v.
Tangattur Kandappa . . 2 Mad. 82

34. Suit cognizable in Small

Cause Court, but erroneously dismissed
there. A plaint was rejected by a Court of Small
Causes on the ground that that Court had no juris-
diction. It was then filed in the Court of a District
]\Iunsif, who decreed for the plaintiff. On appeal
to the Principal Sudder Ameen, it was objected that
the Munsif had no jurisdiction, as the suit was one
cognizable by the Small Cause Court. Held, (the
Court having decided that the Small Cause Court
had jurisdiction-, that the District Munsif's Court
had no jurisdiction ; that the erroneous dismissal of
a former suit for the same cause of action by a Small
Cause Court did not warrant the institution of the
suit in the District Munsif's Court; and that the
Principal Sudder Ameen rightly concluded that the
suit ought to be dismissed. Panappa Mcdali v.
Srinivasa Mudali . . .3 Mad. 86

35. Jurisdiction where Small

Cause Court exists — Civil Proc&hire Code,
1S59, s. ''. Where a Munsif L? vested under Act VI
of 1871 with powers up to R50 in a place in which
there is a Court of Small Causes constituted under
Act XI of 1865 with jurisdiction extendhig up to
R500, a suit of the nature cr.gnizable by Small I aii>e
Courts, being in amount or value below K50, ought
bv the operation of Act VI II of 1S50, s. 6, to be
instituted in the Court of the Munsif exercising
Small Cause Court powers. Dw.^J^KANATH Dctt
V. Bhathee Hawaldar. Chcndoo \'istee r.
SodagurVistek . . . 22W. R. 457

36. - Power of Munsif sitting as

Small Cause Court to transfer case to
Munsif's Court. When a Distrct Munsif^ has
jurisdiction to try a suit as a Small Cause Court
Judge, he cannot "transfer it to the District Munsif's
Court on any ground of expendiency. BoDi Ram-
ayya v. Perma Janakiramvdc . 5 Mad. 172

37. Jurisdiction of Small Cause

Court to return a plaint for presentation to
an ordinary Civil Court when the title of
the plaintiff is questioned — Provincial Small
Cause Courts Act (IX of I'^Si), s. Jii—Suit for
damages for use and occupation— Code of Civil Pro-
cedure. 1SS2, ss. fl4'!A aivl > 4' B. In a suit for
damages on account of use and occupation of land
brought in a Court of Small Causes, exception was
taken to the plaintiff's title. The plaint was re-
turned bv the Judge, under s. 23 of the Provincial
Small Cause Courts Act (IX of 1SS7), for presenta-
tion in the ordinary Ci\-il Court, and it having been

( 86J5 )

DIGEST OF CASES.

8696 )

MUNSIF— coM/rf.

presented to the Munsif, he tried the suit, and
passed a decree in favour of the plaintiii. On appeal,
Ihe Subordinate Judge reversed that decree, holding
that the ilunsLf had no jurisdiction to try the suit.
Held, that, under s. 23 of the Provincial Small
Cause Courts Act, the order of the Small Cause
Court Judge was regularly made, and the Munsif
had therefore jurisLliction to entertain the plaint.
Semble : — Having regard to the provisi ms of ss. 646A
and 646B of the Code of Civil Procedure it is doubt-
ful whether the Appellate Court would have been
right in dismissing the suit for want of jurisdiction,
even supposing that the order made under s. 23 of
the Provincial Small Cause Courts Act had not
expressly conferred jurisdiction upon the Munsif.
Mahamaya Dasya v. Nitya Hari Das Bairagi

I. L. R. 23 Calc 425

38. Suit which may be filed in

more than one of several Covirts — Civil Pro-
cedure Code. 18S2, s. 17 — Provincial Small Cause
Courts Act (IX of 1S87), s. 16 — Choice of forum.
AMiere a suit may be filed in more than one of several
Courts, it is a general principle of law that the
plaintiff may select the forum in which to bring the
suit. \ATiere a plaintiff sued in a District Munsif 's
Court, having jurisdiction at the place where the
money due under a contract was to be paid, there
being no Small Cause Court having jurisdiction at
such place: — Held, that the jurisdiction of the
District Munsif was not ousted by the fact that there
was in existence at the date of suit a Small Cause
Court having jurisdiction at the place where the
contract was made. Ratxagiri Pillai v. Vava
Ravuthan . . I. L R. 19 Mad. 477

39. Jurisdiction to execute de-
cree passed by him in Small Cause Court
case after his powers as Small Cause Court
Judge have been withdrawn — Civil Proce-
dure Code, s. H-±9 — Provincial Snudl Cause Courts
Act (IX of 1887), s. :',5 (1)— Madras Civil Courts Act
(Mad. Act III of 1873), s. 28. Under Madras Act
III of 1873, s. 28, a Munsif was invested with the
powers of a Small Cause Court's Judge for the trial
of suits cognizable by such Court up to H200in
value. Subsequent to decree but prior to execution,
his powers as Small Cause Court's Judge were with-
drawn by notification in the Gazette. Held, that
application for execution must be made to the Court
in which the Small Cause Court's jurisdiction vested
at the date of the application. Zamindar of Val-

LUR AND GUDUR V. AdINARAYUDU

I. Ii. R. 19 Mad. 445

40.

Interpleader suit — Civil

Procedure Code, 1882, ss. 470 and 622 — Claim for
compensation awarded tinder Land Acquisition Act
— Provincial Snudl Cause Court Act (XI of 18S7)
— Superintendence of High Court. Land hav-
ing been compulsorily acquired under the Land Ac-
quisition Act for the purpose of the East Coast
Railway, the compensatijn was fixed at R-iOS. A
conflict having arisen as to the right to receive the
compensation, and the District Court having de-
•clined to determine it under the Land Acquisition

MUNSIF— conW.

Act, s. 15, an interpleader suit was instituted on
behalf of the Secretary of State in the Court of the
District Munsif. The decision of the District Mun-
sif having been confirmed on appeal, the unsuccess-
ful claimant preferred a petition to the High Court
under s. 622, CivU Procedure Code. Held, that the
interpleader suit was not within the jurisdiction of a
Provincial Small Cause Court, and was rightly
brought on the ordinary side of the District Munsif 's
Court, and consequently where the petitioner's
remedy was by way of second appeal, the petition
for revision was not admissible. Tirupati Raju v.
VissAji Raju . . I. L. R. 20 Mad. 155

41. — Suit brought for amount in

excess of Court's jurisdiction — Suit to declare
land liable to be sold in execution of decree — Civil
Procedure Code, s. o73 — Withdrawal of part of claim.
In a suit brought in a District Munsif's Court to
declare certain land liable to be sold in execution
of a decree for more than R 2,500, the defendants
pleaded that the Court had no jurisdiction. The
Munsif allowed the plaintiff to amend the plaint
by stating that he abandoned his claim to execute
the decree against the land for more than R 2,500.
On appeal the District Judge held that the plaint
could not be amended after the first hearing. Held,
on appeal to the High Court, that the claim was not
one which could be amended so as to bring the suit
within the pecuniary jurisdiction of the Munsif.
Annaji Rati v. Rama Kurup

I. L. R. 10 Mad. 152

42.

Decree passed in a restored

suit pending appeal against order of restora-
tion— Civil Procedure Code, ss. 98, 99. A suit
was filed in a Munsif's Court, but neither party ap-
peared for the hearing, and the suit was dismissed.
The Munsif subsequently on review made an order
restoring the suit and eventually decreed for the
plaintifi. The defendant in the meanwhile ap-
pealed to the District Court against the order of
restoration, and after the date of the decree the
District Court made an order allowing the defend-
ant's appeal. The plaintiff appealed to the High
Court, and the order of the District Court was re-
versed, and the order of restoration upheld. Held,
that the Munsif's decree was not passed without
jurisdiction. Alwar v. Seshammal

I. L. R. 10 Mad. 290

43. District Munsifs — Suit for

declaration of title to vaid offic- — W tthdrawa' of
claim to some of the offices — Office still claimed in-
volving the right to the others. In a suit to declare
title to four paid offices in a temple, the plaintiffs
asked that the issues with regard to three of them
should not be tried, but on cross-examination as-
serted right to them. Held, that the plaintifis were
not shown to have relinquished their claim on the
three offices for the purjwses of the suit. On find-
ings that the fourth office carried with it the right to
the other three, and that the united value of the
four offices exceeded the jurisdiction of the District
Munsif -.—Held, that the District Munsif had no
jurisdiction to entertain the suit, and that the plaint

( 8697 )

DIGEST OF CASES.

MUNSIF— con^f?.

should be returned fr presentation in the proper
Court. SuxDRA V. SuBBA . I. L. R. 10 Mad. 371

44, Suit for declaration that

property is liable to sale in execution of
decree — Vnluntion of suit. In a suit to have it
declared that certain property- valued at H400 was
liable to sale in execution of the plaintiff's decree for
R 1,500 :—7/eW, that in this case the value of the
property determined the jurisdiction, that it was
immaterial that the amount of the decree was
higher than the limit of the Munsif's jurisdiction,
and that the case was therefore triable by the
Munsif. Gulzari Lai v. Jadaiin Rai, I. L. R. 2 All
799, distinguished. Durga Prasad r. Rachla
KrAB . . . . I. li K. 9 All. 140

45. Attached property, suit to

establish right to— Bengal Civil Courts Act
{VI of 1S71), s. -20 — Value of the subject-matter in
dispute— Civil Procedure Code (Act XIV of 1SS2),
5. i>S3 — Valuation of suit. A Munsif has jurisdic-
tion to try a suit brought under s. 283 of the Civil
Procedure Code to test the question whether a
property which has been attached in executoin is
liable to pay the claim <i the creditor, the value of
the property being over one thousand rupees, but
the amount of the debt being less than that sum.
In such suits the amount which is to settle the juris-
diction of the Court is the amount which is in dis-
pute, and which the creditor would recover if suc-
cessful, viz., the amount due to him and not the
value of the property attached, unless the two
amounts happen to be identical. Janki Dass v.
Badri Xath, I. L. R. 2 All. 69S; Gulzari Lai v. Jadaun
Rai, I. L. R. 2 All. 799 ; Krishnama Clmriar v. Sri-
nivasa Ayijangar, I. L. R. 4 Mad. 339 ; and Daya-
chand Nemchfnid v. Hemchand Dharamchand, I. L.
R. 4 Bom. 515, followed. IMoDHrsuDrx Koer v.
PvAKH.AL Chunder PvOY I. L. R. 15 Calc. 104

46. Application to be declared

insolvent made to Court to which decree
was transferred for execution — Civil Proce-
dure Code, ss. 22S, 239, 3t4, 360. Where a decree
had been transferred for execution from the Court
of the District Munsif of E to that of the District
Munsif of B, and an application was made by the
judgment -debtor imder s. 344 of the Code of Civil
Procedure to be declared an insolvent and enter-
tained by the latter Court -.—Held, that the District
Munsif of B had no jurisdiction to entertain the
application. Vexkatasami v. Narayaxaratxam

I. L. R. 11 Mad. 301

47. Decree containing order for

ascertainment of mesne profits from date
of suit to date of recovery of possession
— E^ect on j)iri$diction of such 7ncsne profit-: added to
amount of decree exceeding jurisdiction of the Munsif
— Valuation of suit. A suit, valued at R950, was
brought in the Munsif s Court to recover possession
of certain lands on the ground of illegal disposses-
sion. Xo mesne profits up to the date of suit were
claimed, but the plamt prayed that such mesne
profits from date of suit to recovery of possession,
as might be ascertained in execution of decree.

MUNSIF— co7i/(?.

should be awarded to the plaintiff. The Munsif
gave a deree in accordance with the prayer of the
plaint. The plaintiff then asked that the mesne
profits might be assessed, and in his petition he
rouglily etimated them at R59.5, and thereupon
it was held both by the Munsif, and on appeal by
the District Juflge, that the Munsif had no juris-
diction, as he could not give a decree for more than
R 1,000. Held, on appeal to the High Court, that
the Munsif had jurisdiction to ascertain the mesne
profits, and to give effect to the i rder made in his
decree in the suit, notwithstanding that the amount
of such mesne profits, when added to the value of
the .suit, might come to a sum in excess of the pecu-
niary jurisdiction of his Court. Ra5Ieswar M.vh-
ton\'. Dilu Mahtox . I. L. R. 21 Calc. 550

48. Power of District Munsif

on revision — Madras Village Courts' Act (Mad.
Act I of 1SS9), s. 73. A District Munsif has no
jurisdiction to reverse the decree of a Village Mun-
sif on a question of evidence ; he can only revise
the proceedings of Village Courts on the grounds
mentioned in s. 37 of the Village Courts Act.

GlDDAVYA V. JaGAXXATHaRaF

I. li. R. 21 Mad. 363

49. Power of District Munsif

on revision — Village Courts Ad {Madras Act I
of J.S,S' ), s. 73— Revision, hy District 2Iunsif of Vil-
lage Courts' proceedin{js — Payment xindcr protest by
a defendant to a Village Munsif to avoid attachment
and sale wilder a decree — Order by District Munsif
setting aside all proceedings, and for refund by
Village Munsif — Legality of order. Bv s. 73 of
the Madras Village Courts Act, 1889, the District
Munsif may set aside the decree i r order of a Village
Munsif on certain grounds. A Village Munsif
having passed a decree against a defendant in a
suit befi re him, attached, in pursuance thereof,
property belonging to the defendant, who there-
up in paid the amount to the Village Munsif under
protest. Defendant then applied under s. 73 to
the District Munsif, wh > set aside the decree and
attachment and declared them to be void, and
ordered the Village Munsif to refund the money
he had recovcreil from the defendants. Held, that
the order, in so far as it related to a refund of the
money by the Village Munsif, was made without
jurisdiction, and must be set aside, without pre-
judice to the rights (if anj-) of the defendant to
proceed against the Village Munsif for damages
suffered by reason < f his misconduct. Under s. 73. a
District 5lunsif has p .wcr ..nly to set aside the
decree or < rder complained of, and cannot make an
order for payment against the Village Munsif, the
section applying to proceedings betwi-en litigants.
Palaxi GorxDAX i-. KtrppAxuA GorxDAX (1900)
I. li. R. 24 Mad. 335

50. Small cause jurisdiction —

Provincial Small Cause Court — Act IX of LSS7, ss. 16,
I 32 (-J) — Mun-sif invested nith Small Cause jurisdic-
tion— Extavsion of jurisdiction — Transfer of cases
on file on regular side to small cau<e side — Ca<es dis'
posed of as smaU cause suits — Legality. A 1 istrict
Munsif, who had small cause jurisdiction up to

( 8699 )

DIGEST OF CASES.

{ 8700 )

MIJNSIF— cowcZfZ.

RlOO, had, on his file on the regular side of his j
Court, suits of a small cause nature for amounts |
between R 100 and R200, some of which were partly
tried. His small cause jurisdiction was then ex-
tended to B200, whereupon he transferred the cases
in question to his small cause file, and tried and
disposed of them as small causes. Held, that the
transfer and trial were not in accordance with law.

HaKiKaJIAYYAU. HARlVENKAyYA(1903)

I. L. R. 26 Mad. 212
MURALI.

See Hindu Law — Inheritance.

I. li. R. 31 Bom. 495
MURDER.

See Abetment — Murder.

See Attempt to Commit Offence.

4 Bom. Cr. 17

8 Bom. C 164

I. L. R. 15 Bom. 194

I. L. R. 14 All. 38

I. L. R. 20 All. 143

See Criminal Procedure s. Codes, 376

(1872, s. 288) I. L. R. 1 Bom. 639

See Culpable Homicide.

.SeeDACOiTY . I. L. B. 16 All. 437

I. L. R. 17 All. 86

See Evidence — Criminal Cases — Con-
sideration OF, AND Mode of Dealing
with, Evidence.

I. L. R. 13 Mad. 426
6 C. W. 3S". 921

See Insanity . I. L. R. 28 Cale. 613

I. L. R. 29 Cale. 493

I. L. R. 34 Cale. 68

See Jurisdiction of Criminal Court —

Offences committed only partly in

ONE District — Murder.

I. L. R. 2 All. 218
I. L. R. 10 Bom. 258, 263

See Medical Jurisprudence.

13 C. W. K". 622
See Pexal Code, ss. 300—304.
*See Penal Code (Act XLV of 1860),
ss. 302, 325, 328.

I. L. R. 30 All. 568

See Sentence — Capital Sentence.
See UNT.AWFUL Assembly.

See Verdict of Jury — General Cases.

1 W. R. Cr. 50

21 W. R. Cr. 1

I. L. R. 20 Bom. 215

abetment of —

See Jurisdiction of Criminal Court —
Offences committed only partly in
ONE District — Abetment.

I. L. R. 19 Bom, 105

1. ■_ — Motive, proof of. The evidence

as to the motives with which a prisoner commits an

MURDER— conffi .

offence should be of the strictest kind. Queen v.
Zahir . . . . 10 "W. R. Cr. 11

2. Motive or ill-will, proof of.

Proof of motive or previous ill-will is not necessary
to sustain a conviction for murder in a case where
a person is coolly and barbarously put to death.
Queen v. Jaichand Mundle 7 "W. R. Cr. 60

3. Absence of premeditation —

Culpable homicide. The absence of premeditation
will not reduce a crime from murder to culpable
homicide not amounting to murder. Queen v.
Mahomed Elim . . . 3 W. R. Cr. 40

4. — SuflFering death by consent —

Penal Code, s. 300, excep. 5. In a case of a mfe
consenting, whUe in violent grief for the loss of her
child, to suffer death at the hands of her husband : —
Held, that evidence of consent which would be suffi-
cient in a civil transaction must be equally sufficient
in exculpation of a prisoner's guUt. Queen v.
Anunto Rurnagat . . 6 W. R. C 57

5. : Grievous hurt, murder

arising from — Inseparable acts. In order to
convict a person of murder arising out of grevious
hurt, it is indispensable that the death should be
clearly and directly connected with the act of vio-
lence. Queen v. Mahomed Hossein

W. R. 1864 Cr. 31

6. Act by which death is cans-

ed occurring indacoity — Penal Code, s. 200.
If the act by which death is caused does not in itself
constitute the crime of murder, it does not con-
stitute murder because it is coupled with dacoity.
Queen v. Raji Coomar Chung

1 Ind. Jur. O. S. 108

7, Murder in committing

dacoity. When murder is committed in the com-
mission of a dacoity, every one of the persons con-
cerned in the dacoity is liable to be punished with
death. Queen v. Ruchee Ahen

2 W. R. Cr. 39

8. Culpable homicide — Distinc-
tion between it and murder. Culpable homicide
and murder distinguished. Queen v. Gorachand

GOPE

B L. R. Sup. Vol. 443 : 5 "W. R. Cr. 45
1 Ind. Jur. N. S. 177

9, Grave and sudden provoca-
tion— Actual intention to kill. Under the Penal
Code, no constructive but an actual intention to
cause death is required to constitute murder. Thus
when a boy of fifteen years old, in the heat of dis-
covering the deceased in the act of adultery with the
wife of a near relative, and, without the use of any
weapon, joined that relative in committing an
assault upon the deceased which caused his death,
the offence committed was held to have been cul-
pable homicide not amounting to murder. Queen
V. Goreeboollah . . 5 W. R. Cr. 42

10.

Grievous hurt.

A man who, by a single blow with a deadly weapon
killed another man who, at dead of night, was en-

701 )

DIGEST OF CASES.

( 8702 )

MURDER— <;on<rf.

tering his room for the purpose of having criminal
intercourse with his wife, M-as held guilty not of
murder, but of causing grievous hurt on a grave and
sudden provocation. Queen v. CnuLLrxDEE
PoRAMANicK . . . 3 W. R, Cr. 55
11. — Culpable homi-
cide. Culpable homicide not amounting to murder
is when a man kills another being deprived of self-
control by reason of grave and sudden provocation.
But when the act is done after the first excitement
had passed away, and there was time to cool, it is
murder. Queen v. Yasin Sheikh

4 B. li. R. A. Cr. 6 : 12 W. R. Cr. 68

12.

Culpable liomi-

cicle not amounting to murder — Penal Code, ss. 300,
excep. 1, 302, 304. Upon the trial of a person
charged -with the murder of his wife, it was proved
that the accused had entertained well-founded
suspicions that his ■n-ife had formed a criminal in-
timacy with another person ; that one night the
deceased, thinking that her husband was asleep,
stealthily left his side ; that the accused took up an
axe and foUoAved her, found her in conversation
■with her paramour in a public place, and immediate-
ly killed her. Held, that the act of the accused
constituted the crime of murder, the facts not
showing " grave and sudden pro vacation " withm
the meaning of s. 300, excep. 1, of the Penal Code
so as to reduce the ofience to culpable homicide not
amounting to murder. Queen-Empress v. Damarua,
All. Weekly Notes {1SS5), 197, distinguished by
Stkaight. Offg. C. J. Queen-Empress v. Mohan
I. L. R. 8 All. 622

13. —

Culpable homi-

MVRD-E-R—contd.

provocation. Queen- Empress v. Damarua, All.
Weekly Notes {1SS5), 197, and Queen-Empress v.
Mohan, I. L. R. S All. 622, referred to. Queen-
Empress V. LocDAN. . I. L. R. 8 Ail. 635

15. Absence of intention to kill

— Indication of intentio-n by act^. It is not murder
if a person kills another without inten ling to take
his life, and if the acts done were not such as con-
clusively indicated an intention to cause such injury
as was likely to cause death. Queen v. Solim

5 W. R. Cr. 41

16. Intention to kill another

person. Where an accused killed .4, whum he
had no intention of killing, by a blow with a highly
lethal weapon intended to kill B, he was held guilty
of the murder of A. Queen v. Phomonee Ahum
8 W. R. Cr. 78

cide— Penal Code {Act XLV of 1S60), ss. 299, 3>J0.
In deciding the question whether culpable homi-
cide amounts to murder, it would be erroneous to
convict the prisoner of murder simply because there
is nothing to bring an accused person under any of
the exceptions, reducing the oSeuce to one not
amounting to murder, and it is the duty of the Court
to consider, in the first place, whether the element
or elements which constitute the offence of murder,
as defined in s. 300, exist. Pasput Gope r. Kam
Bhajan Ojha . . . 1 C. W. N. 545

14, . — Culpable Imnicide

17.

Absence of proof of com-

not amounting to murder — Pena! Code. iS. 300 e.'Cep-
tion { 1 ), 302, 304. An accused person was convicted
of culpable homicide not amounting to murder in re-
spect of the widow of his cousin, who lived with him.
The evidence showed that the accused was seen t )
follow the deceased for a considerable distance \\-ith
a gandasa or chopper, under circumstances which
indicated a belief on his part that .-he was going to
keep an assignation, and with the purpose of detect-
ing her in doing so. He found her in the act of
connection with her paramour, and killed her with
the chopper. Held, that the conviction must be
altered to one of murder, as the accused went deli-
berately in search of the provocation sought to be
made the mitigation of his ofEence, and under the
circumstances disclosed it could not be said that he
-was deprived of self-control by grave and sudden

mon intention to cause death — Penal Code
(Act XLV of 181)0), s. 302. Where three prisoners
assaulted the deceased and gave him a beating, in
the course of which one of the prisoners struck the
deceased a blow on the head, which resulted in
death : — Held, that, in the absence of proof that the
prisoners had the common intention to inflict in-
jury likely to cause death, they could not be con-
victed of murder. Queen-Empress v. Duma
Baidya . . . I. li. R. 19 Mad. 483

18. Exposvu-e of child — Ptnal

Code, s. 317 — Remote cause of death. Held, that
where, from the circumstances, it appeared that a
child had been exposed by the prisoner died, but
that death was not caused except verv" remotely by
the exposure, the prisoner, though guilty under s.
317 of the Penal Code, could not be convicted of
murder. That section contemplates cases in which
death is caused from cold or some other result of
exposure. Queen t*. Ivhodabux Fakeer

10 W. R. Cr. 52

19. Neglect of child — Culpab'e

homicide — Death from starvation. Where it ap-
peared that the prisoner, a Rajput, had allowed his
female child, after the mother's death, to gradually
languish away and die from want of pnjper sus-
tenance, and had persistently ignored the wants of
the child, although repeatedly warned of its state
and the consequences of his neglect of it, and there
was nothing to show that the prisoner was not in a
position to support the child : — Held, that the ofience
which the prisoner committed was murder, and
not simply culpable homicide not amounting to
murder. Queen v. Ganlja Sinou . 5 N". W. 44

20. Exercise of right of private

defence on thief. The prisoners detcvted a weak
half-starved old woman stealing their rice, and so
used their right of private defence that she died
from the injuries they inflicted. The prisoners were
held guilty by tlie majority of the Court of murder
(dissenlicnle, Campbell, J.). Queen v. Gokool
BowKEE . . . . 5 W. R. Cr. 33

21. Right of private defence—

House-breaking by night. Prisoner found deceased

( 8703 )

DIGEST OF CASES.

( 8704 )

MURDER — CO ntd.

in act of house-breaking by night in his house, and
killed him with a kodali which he had called for, as
he admitted, for that purpose. He was convicted
of murder, and sentenced to death by the Sessions
Judge. The sentence being referred to the High
Court for confirmation, it was held that the prisoner
had been legally convicted of murder, that he had
intentionally done to the deceased more harm than
was necessary for any purpose of defence, and that
not whilst deprived of power of self-control. But
the sentence was mitigated to transportation for
life, than which, it was held, no less sentence could
be legally passed. The Judge, however, in a letter
to G vernment, suggestetl the mitigation ( f the
punishment, which was ace rdingly reduced to im-
prisonment f .r six months. Keg. v. Durwan
Geer. 1 Ind. Jur. N. S. 253 : 5 W. R. Cr. 73
See Queen v. Fukeera Chamar

6 W. R. Cr. 50

22. Death from blow in a fight.

A conviction for murder was held to be wrong in a
case where a prisoner, taking advantage of an inci-
dent which occurred in what till then had been a
fair fight, struck his opponent and knocked him
over, thereby causing his death. Queen v. Kewal
DosAD . . . . W. R. 1864 Cr. 36

23. Fatal blow after quarrel —

Penal Code, s. 300, els. (2) and (3). Two persons
met each other in a drunken state and commenced a
quarrel, during which they became grossly abusive
to each other. This lasted for about half an hour,
when one of them ran to his own house, distant 30
yards from the spot, and came back with a heavy
pestle, with which he struck the other a violent blow
on the left temple, as the latter was rising, ( r had
just risen from the ground, causing instant death.
Held, that the act was done with the intention of
causing such bodily injury as was likely to cause
death, and also with the knowledge that such act
was likely to cause death, and that the offence com-
mitted was murder within the provisions of els. (2)
and (3), s. 300, Penal Code. Queen v. Dasser
BHooyAN . . . 8 W. R. Cr. 71

24.

Blow with knowledge of

likelihood to cause death — Absence of inten-
tion to kill. When a Judge acquits a prisoner of
intention to kill, but admits that the prisoner struck
the deceased with a highly lethal weapon, with the
knowledge that the act was likely to cause death, the
conviction should be of murder, and not of culpa-
ble homicide not am unting to murder. Queen v.
Sobeel Mahee . . . 5 "W. R. Cr. 32

25. Beating with knowledge

of likelihood to cause death. Held, by the
majority, that, when four men beat another at inter-
vals so severely as to cause death, they must be
presumed to have known that by such acts they were
likely to cause death, and that, when such acts
were done without any grave or sudden provocation,
or sudden fight or quarrel, the offence was murder
and was not reduced to culpable homicide not
amounting to murder by the absence of intention
to cau^e death. Queen v. Pooshoo

4 W. R. Cr. 33

MURDER— co7?if7.

26. Blow struck by order of

another person— Death by heating. Where a
blow is struck by A in the presence of and by the
order of B, both are principals in the transaction ;
and where two persons join in beating a man and he
dies, it is not necessary to ascertain exactly what
the effect of each blow was. Queen v. Mahomed
AsGAR . . . . 23 "W. R. Cr. 11

Queen v. Gour Chunder D.a

W. R. Cr. 5

27.

Presumption from conse-
quences of Act likely to cause death— C^/Z-
fable homicide. Appellant, having armed himself
with a sword, struck in the dark at certain persons
in a house, causing wounds which resulted in the
death of one person. Held, per Jackson, J.— That
such conduct raises an inference that he intended to
cause death. Per Ainslie, J.— That though he
probably did not see how his blows were directed,
as he struck them with a deadly weapon regardless
of consequences, he must have known that his act
was imminently dangerous, and that it must, in all
probability, cause such bodily injury as was likely
to cause death. Per Cunninghaji, J. — That the
offence was culpable homicide, and not murder,
being an unpremeditated act of reckless violence
rather than an act done with the knowledge or in-
tention which is essential to constitute murder.
Bejadhur PvAI v. Empress . 2 C. L. R. 211

28.

Conspiracy to kill — Penal

Code, s. 302. L, C, K, and D conspired to Idll S.
In pursuance of such conspiracy, L first and then C
struck aS on the head with a lathi and S fell to the
ground, ^^^^ile S was lying on the ground, K and
D struck him on the head with their lathis. Held,
(Stuart, C.J., dissenting), that, inasmuch as K and
D did laot commence the attack on S, and it was
doubtful whether S was not dead when they struck
him, transportation for life was an adequate punish-
ment for their offence. Empress v. Chattar
Singh . . . . I. L. R. 2 Ail. 33

29. Knowledge of likelihood to

cause death — Penal Code, s. 300, d. ■', and s. 314.
To bring a case under cl. 4, s. 300 of the Penal Code,
it must be proved that the accused in committing
the act charged knew that it must, in all probabi-
lity, be likely to cause death, or that it would bring
about such bodily injury as would be likely to cause
death. Where a poisonous drug was administered
to a woman to procure miscarriage, and death re-
sulted, and it was not proved that the accused knew
that the drug would be likely to cause death, etc.,
they were acquitted by the High Court of murder
and convicted of an offence under s. 314 of the Penal
Code. Queen v. Kala Chand Gope

10 W. R. Cr. 59

30.

Death caused by snake-

charmers — Culpable homicide. Certain snake-
charmers, by professing themselves able to cure
snake- bites, induced several persons to let themselves
be bitten by a poisonous snake. From the effect
of the bite, three of these persons died. Held,
that the offence was murder under els. 2 and 3 of

( 8705 )

DLiEST OF CASES).

8706 )

MURDE R—cnntd.

8. 300 of the Penal Code, unless it could be brought
within the 5th exception to that section. If the
prisoners, really believing themselves to have the
powers they professed to have, induced the deceased
to consent to take the risk of death, the ofience
would be culpable homicide not amounting to
murder. Qubkn v. Punai Fattajia

3 B. Ii. R. A. Cr. 25 : 12 W. R. Cr. 7

31. Penal Code, ss.

oOl, 304 A — Culpable homicide — C'audwj death by
negligence. A snake-charmer exhibited in public
a venomous snake, whose fangs he knew had not
been extracted ; and to show his own skill and dex-
terity, but without any intention to cause harm to
any one, placed the snake on the head of one of the
spectators ; the spectator tried to push off the
snake, was bitten, and died in consequence. Held,
that the snake-charmer was guilty, under s. 304 of
the Penal Code, of culpable homicide not amounting
to murder, and not merely of causing death by
negligence, an oSence punishable under s. 304A.
Empkess v. Gonesh Dooley

I. L. R. 5 Cale. 351 : 4 C. L. R. 580

32. Running a,m.mk— Punish-
ment. Where a quiet, peaceable man, suddenly
and without the least motive or provocation, runs
amuck against all aF lund him, his case is ditierent
from an ordinary case of deliberate murder deserv-
ing of the extreme penalty. Queen v. Bishonath
BuNNEEA . . .8 W. R. Cr.^53

33, Presumption of death. ^Ina

case where a man was struck on the head in a boat
"with a heavy paddle and knocked overlX)ard in a
large river in the height of the rains, and had neve:
been heard of since, it was held impossible to sup-
pose that the man was still alive, and the conviction
of murder was upheld. Queen v. Poorusoolah
SiKHDAK . . . . 7 W. R. Cr. 14

34. Sacrifice of son by father-
Curious case of murder where a father sacrificed his
son, ^because wealth had not accompanied its birth,
and afterwards cut his own throat as a protest
against his deity's injustice. Queen v. Bishen-
DHAREE Kahar . . . 7 W. R. Cr. 100

,. 35. Charge of murder where

no body is found— Pe?j-a/ Code, s. 302 — " Corpus
delicti.'' The mere fact that the body of the mur-
dered person has not been found is not a ground for
refusing to convict the accused person of the mur-
der. Empress v. Bhagirath. I . L. R. 3 Ail. 383

36. Although, under

some circumstances, a charge of murder may be
sustained, when the body of the person said to have
been murdered is not forthcoming, still, when thai
is the case, the stro ngest possible evidence as to the
fact of the murder should be insisted on before an
accused is convicted. Adtt fcJHiKDAR v. Queen-
Empress . . . I. L. R. 11 Caic. 635

37. Conviction of murder

where body is not found— S< ntence of death.
A Judge was held to have exercised a proper dis-
cretion in not passing sentence of death in a case in
which the dead body was not found. Queen c.
Budderoodeen . • 11 W. R. Cr. 20

MURDER ronld.

38. Grave and sudden provo-
cation— Acciisei — Wife — Intrigue — Culpable homi-
cid' not amounting to murder — Penjl Code (Act
XLV of 1H>0), ss. 30'!, 302, and 30l. llie de-
ceased H lived in the hotise of the accused A. H
contracted an intimacy with L, the wife of A,
in consequence of which he was turned out of
the house. Subsequently, on a certain night //, at
the invitation of L, went to the house of A, and
was taken inside by her. Thereupon A and the
other accused, relatives of his. seized H, carried him
off to some distane, beat him, broke his arms
and a leg, and left him. Three days later, H died in
consequence of the injuries. All the accused were
convicted under s. 302 of the Penal CVjde and
sentenced to transportation for life. Held, that
the circumstances under which H was found in
the house of .4 on the night of the crime were
sufficient to cause grave and sudden provocation
to A and his relatives within the meaning of s.
300, Excep. {!), of the Penal Code, and that the
provocation was of a nature that woud continue to
influence the feelings of the accused for a consider
abIe;period after H was caught in the house in the
company of L Conviction altered to one under
s. 304 of the Penil Code, and sentence reduced.
Abalu Das v. King-Empeeor (1901)

I. L. R. 28 Calc. 571
s.c. 5 C. W. N. 708

39. Circumstantial evidence
Penal Code {Act XLV of ISiO), $. 302— Proof of
offence — Conviction of one of tivo persons, when
unrertain tvho fired the fatal shot, in the absence
of common intention — PeiPil Code, ss. 34 and 1 ■ 9 —
Evidence, mode of s'ft ng and weighing — Dividing,
witnesses into chj^ses and accepting evidence of one
class and rejecting t/iat of another — Presumption of
innocence — Probabilties, consideration of — Duty of
prosecutian to examine all important ivitncsses and
produce all aoailable evidence. Where the Sessions
Judge in a trial on a chargt* of gun-shot murder
against N, found that N and another person L were
seen immediately after the report ol the gun at
the scene of occurrence each with a gun i i his hand,
but he did not tind which of them tired the fatal
shot, his only finding being that either A' or L tired
the shot that killed the deceased, and there was no
finding in the judgment that A* and L had a com-
mon intention and acted in concert and that the
gun was fired in furtherance of their common iu-
teution : Held, that the legal inference from these
findings must be that neither A^ nor L was guilty
of the offence of murder. The Ipswich case. King v.
Richardson, 1 Leach's Crown L. Cas. 431, followed.
The fact that an accused person was found with a
gun in his hand immediately after a gun was fired
and a man was killed on the spot from which th«
gun was fired, may be strong circumstantial
evidence against the accused, but it is an error of
law to hold that the burden of proving innocence
lies upon the accused under such circumstances, if
there are t^vo persons who answer the above des-
cription the circumstantial evidence loses its weight
very substantially- -^ elementary principle of
sifting evidence is to test it in the light of probabi-

12 X

( 8707 )

DIGEST OF CASES.

( 8708 )

MURDER— co7Jc/(?.

lities. The piecemeal examination of the testimony
of individual witnesses without a broad view of the
facts, circumstances and probabilities of a case
genenilly leads to a failure of justice, especially in
a case where most of the witnesses are drawn from
a class of persons whose testimony is frequently
imconvincing and not unfrequently unreliable.
Even if witnesses in a case do not break down in
cross-examination or contradict each other, yet if
their testimony is opposed to the ordinary course
of human conduct and to the natural order of things,
such testimony must be accepted with the greatest
caution. Tlie" method of the Sessions Judge in
dealing with the testimony of the witnesses by
dividing them into two classes — Hindus and Maho-
medans — and accepting the evidence of one class
and rejectiiag that of the other was open to serious
objection. The withholding of important witnesses
who were in one way or other intimately connected
with the transaction or the occurrence and the state
of things immediately after, gives rise to the ir-
resistible inference that if they were examined |
they would not have corroborated the prosecution j
story. NiBARAX Chandra Roy v. King-Empee- i
OR (1907) . . . new. W. 1085 \

MUSCAT ORDER IN COUNCIL.

November 4th, 1867— j

See High Court, Jurisdiction of —
Bombay — Criminal.

I. L. R. 24 Bom. 471 ,

MUSHAA, LAW OP.

See Debtor and Creditok.

I. L. R. 26 Bom. 577 j

See Mahombdan Law — Gift. !

L. B. 34 I. A. 167
I. L. R. 35 Calc. 1 i
I. L. R. 30 All. 309
MUSICAL FESTIVAL.

See Easement . I. L. R. 36 Calc. 615
MUSTAGIR.

See MuTLRAiYAT . I. L. R. 32 Calc. 1014
MUTARAPA.

See Tax . . I. L. R. 9 Mad. 14
MUTATION.

of name on payment of salami —

See Landlord and Tenant.

12 C. W. N. 589 j
MUTATION OF NAMES. '

Sere Mortgage . I. L. R. 31 All. 13
MUTINY ACT.
s. 99—

See Attachment — Subjects of Attach-
ment—Salary . I. L. R. 1 All. 730

See Small Cause Court, Mofussil —
Jurisdiction — Military Men.

2 B. L. R. S. N. 3 ; 7
6 Mad. 83

MUTINY ACT— concld.
s. 101—

»S'('6 JURFSDICTION OP CrTMINAL CoURT

European British Subjects.

I. L. R. 5 Calc. 124

s. 103—

See Small Cause Court, MopussiIj —
Jurisdiction— Military Men.

2 Mad. 389

MUTT.

See Math.

See Hindu Law-

-Endowment.

Religious Endowment.

1. L. R. 27 Mad. 435

Head of — Foiver to hind mutt

property — Income of mutt in the hands of successor
liable for debts properly contracted. The position of
the head of a mutt in reference to the mutt is ana-
logous to that of the manager of an infant heir.
Konwur Doorganath Roy v. Ram Chunder Sen, L. R .
4 I. A. 52, referred to. "WTiere debts are contracted
by the head of a mutt for purposes binding on the
mutt, a decree in respect of such debts may be pas-
sed against his successor charging the income of the
mutt property though such debts were not expressly
charged on the income of the mutt. Daivasikamani
Andarasannidhi v. Noor Mahomed Routhan
(1907) . . . I. L. R. 31 Mad. 47

MUTUAL ACCOUNTS OR DEALINGS.

See Limitation Act, 1877 Sch. II, Art.
85.

MUTUAL ASSURANCE SOCIETY.

See Company — Formation and Regis-
TRATIO.N . I. L. R. 17 Calc. 786

MUTUAL BENEFIT SOCIETY.

1. Power of majority to alter

rules — Payment of pensions in England — Adjust-
ment of payments in accordance with rate of ex-
change— Interest of subscriber to Society. The U.
S. F. P. Fund, a Society established, as stated in
rule 2 of the Rules of the Societj^ " to provide for
the maintenance of the widows and children of
those who shall subscribe to it upon the terms and
conditions speiified below, or upon such others as
may be determined upon by the subscribers or by a
majority of them," had, prior to 1850, passed a
rule (33) that " widows, being incumbents on the
Fund, shall be paid their pensions at any place they
may desire, subject to the usual charges of remit-
tance ; the pensions of children, being incumbents
on the Fund, shall also be so paid and on the same
condition." The subscriptions were then, and
continued to be, paid in rupees, and the pensions
were calculated in rupees according to certain
tables. On being admitted, a subscriber had to
" promise and engage to submit to, and abide by
the rules and bye-laws of the Institution " (rule
22), and by rule 27 had to ' 'pay a fee equal to ten

( 8709 )

DIGEST OF CASES.

8710 )

MUTUAL BENEFIT SOCIETY— con/rf.

per cent, on the amount of monthly pension in-
snred." Rule CO gave power to alter any existing
rule by the duly recorded votes of a majority of the
subscribers. In 1850 exchange between India
and England being then about par, rule 33 was
repealed, and a new rule (41) was substituted for it,
which provided that "incumbents on the Fund
shall be paid their annuities in India at par, or in
Europe at the fixed rate of two shillings in the
rupee." On the 1st July 1876, exchange being ad-
verse on remittances from India to England, a rule
was passed, which provided that " incumbents on
the Fund shall be paid their annuities in India in
full, and those residing in Europe at the rate of
exchange fixed for the ofiicial year by the Secretary
of State ; annuities already due or hereafter be-
coming due on risks accepted before the 1st July
1876 shall be payable to mcumbents residing in
Europe at the fixed rate of two shillings to the
rupee." Exchange continuing to decline, on the
22nd May 1880, the Society, by the votes of 553
against 505 of the subscribers, passed the following
rale : ' ' Annuities already due, or becoming due
before the 1st INIay 1880, on risks accepted before
the 1st July 1876, shall be payable to incumbents
residing in Europe at the fixed rate of two shillings
to the rupee : but all other annuites due, or be-
coming due, shall be paid, if to incumbents in India,
in full, and if to incumbents residing in Europe in
London, at the market rate of exchange." The
plaintiffs were the widow and children of F, a
member of the Society, who was admitted as a sub-
scriber for the benefit of his widow in November
1871, for the benefit of his son in September 1873,
and for the benefit of his daughter in November
1874. He commenced to pay an increased subscrip-
tion for the benefit of his son in September 1878.
He was not one of the m i joritv who voted in favour
of the rule of the 22nd May 1880, though he attend-
ed the meeting of subscribers. He died on the
25th June 1880, having up to that time duly paid
his subscription to the Fund. In a suit in which
the plaintiffs, who were residing in England, claimed
to be paid their pensions at the rate of two shillings
in the rupee : — Held, that F had no vested interest
at the time of the passing of the rule of the 22nd
May 1880 ; that the plaintiffs were, with respect
to their pensions, bound by the terms of that rule
which a majority of the subscribers had full powers
to pass so as to affect the nominees of all existmg
subscribers, and therefore the suit should be dis-
missed. Rule 41 gave an undue advantage to one
class of subscribers, which was extra vires and open
to correction under rule 60 by a majority of the
subscribers. The Society being one for the equal
benefit of all subscribers, even if rule 60 did not give
power to adjust payments in accordance with the
rate of exchange, such a power might be implied for
the purpose of continuing the business of the Asso-
ciation. Fat,t,e v. M.\cE\vkx

I. li. R. 7 Calc. 1 : 8 C. L. R. 577

2, _ Madras Civil Service An-

nuity Fund — Rejund of excess subscriptions,
right to. The Madras Civil Service Annuity Fund

MUTUAL BENEFIT SOCIETY— cowW.

was established in 1825 for the puq)ose of provid-
I ing annuities to the Civil Servants of the East India
! Company in the Madras Presidency on retiring fiom
I service. The annuities were to be provided for by
I subscriptions of the Qvil Servants to that Fund
I to the amount of one half and by contributions by
the East India Company to the extent of the other
half. These contributions were to be received by
' trustees and applied by them to make good the defi-
ciency which was to be supplied by the Company.
It appeared that in some instances the trustees of
the Fund, where an excess of subscriptions had been
; paid by a sub.scriber entitled to an annuity beyond
the half value of the annuity, had returned the
excess. B, a subscriber from the commencement,
had contributed beyond the half value of his an-
j nuity Held, that, although the regulations of the
j Fund did not justify a refund to a subscriber of the
I amount of his subscriptions in excess of the pre-
I scribed amount yet that the practice which had
I prevailed of refunding the contributions in excess,
and the acquiescence of the East India Company
: in* such practice, precluded the Company from
I disputing the right of the subscriber to repayment
I of the surp'us of his subscriptions in excess of the
j half value of the annuity paj^able out of the Fund.
Held, also, that, R having become entitled to his
j annuity in 1852, his right to such repayment could
I not be affected by rules passed in 1853 prohibiting
such refund, although R remained a subscriber in
I 1853. East India Company v. Robektsox
I 4 W. R. P. C. 10 : 7 Moo. I. A. 361

3. Rtiles of Benefit Society

Power to alter rules. Tlie Bombay Uncovenanted
I Service Family Pension Fund was a voluntary
society established in 1850. Its object was to pro-
: vide pensions for the widows of its members. One
of its rules provided that the rules of the society
! were subject to such additions and alterations as
might from time to time be sanctioned by the
general body of subscribers, and by the form of
application for admission as a member each ap-
plicant promised and engaged to abide by the rules
of the society. The plaintiff became a member in
1875. At that time one of the rules (which had
been passed in 1871) provided that the pensions of
widows resident in hurope should be payable to
them at the rate of 2*-. per rupee. On the 20th
July 1895 the society passed a new rule which pro-
vided that all pensions due or becoming due after
the 31st July 1895 should be paid to incumberts
residing in Europe or the colonies at the market
rate of exchange on the day of remittance. The
plaintiff contended that the society was not com-
petent to alter the rule passed in 1871 by which he
had been induced to join the society, and he prayed
for a declaration that his wife, if and when she
became a widow, would be eiititled to have her
pension paid at par. Held, dismissing the suit,
that the society was competent to alter its ndes
and that the plaintiff was boimd by such altered
rules. The contract with the plamti'ff was that his
widow, if he left one, should receive such pension
as the rules prescribed, and that the rules
were liable to alteration by a majority at a general

( s7n )

muicsr OH" oasks.

MUTUAL lUaNKl-'lT HOOUilTV ,..»,/,/,

I. U H. MU It.'iw, -Ihl
MUTUAL ORBDIT,

•SVr- iNMlMA'WN'l' A»n\ a, i\0,

MUTUAi.rry

1., K, l\i i'Mio Ui:»

la a. \v N .iHH

MUi'W ALl.l.

8 0 W > N . HH»> ; m>£>

^W. MaU»>MW»».\N law KNlU>\VMMHn\

iS'ee Ma'(>\vaUi.

N00 PAH'VJwa, I. I. It, H6 Uttlo, I Ha

Buit to remova
.SW Am XX »>K l8Ha, a, IN

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MYSOJim

,1uviac\ii»t.iun oi JiiHtuit) »>t t.h»

Set) l<\niwiuN ilumMiMt'i'ioN Ai r. IH7l>.
Hti, 4, It \Ni< s I 1. i; tt ivi.1,1 i\o'i

UAUCUTTA ; PWINTRO »¥ SUPBT. QQYT, PRJNTINQ, IM'IA, li, itAr<l»NUH STMIBt',

*■ V^ l«/f

K Bose, Barada d'As

A digest of Indian law..
B1U2KT>5 reports
1912
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Full text of "A digest of Indian law cases containing High Court reports, 1862-1909; and Privy Council reports of Appeals from India, 1836-1909, with an index of cases. Compiled under the orders of the Government of India"

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