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Full text of "Indian Cases Vol LXXXXII"

DAMAGE BOOK 



Text problem book 



m<OU 166628 >m 



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INDIAN CASES 

CONTAINING 

FULL REPORTS OF DECISIONS 

OF 

The PRIVY COUNCIL, the High Courts of ALLAHABAD, 

BOMBAY, CALCUTTA, LAHORE, MADRAS, 

PATNA arid RANGOON, the Courts of the Judicial 

Commissioners of CENTRAL PROVINCES, 

OUDH and SIND 

REPORTED IN 

The following 29 Legal Periodicals: 

Allahabad (1) Indian Law Reports, (2) Law Journal, (3) Law Reporter Allahabad; 
Bombay (1) Indian Law Reports, (2) Law Reporter; Calcutta (1) Indian Law 
Reports, (2) Law Journal, (3) Weekly Notes; Lahore (1) Indian Law Reports, 
(2) Law Journal, (3) Punjab Law Reporter; Madras (1) Indian Law 
Reports, (2) Law Journal, (3) Law Weekly, (4) Weekly Notes; 
Nagpur (1) Law Reports, (2) Law Journal; Oudh (1) Cases, 
(2) Law Journal, (3) Weekly Notes; Patna (1) Indian 
Law Reports, (2) Cases, (3) Law Reporter, (4) Law 
Times; Rangoon (1) Indian Law Reports, 
(2) Burma Law Journal; Sind Law 
Reporter; Criminal Law Journal 
and All India Reporter, 
WITH 

A large number of extra Rulings not reported elsewhere. 



VOLUME 92, 1926. 



Founded by 
Hhalmb-ufl-nin. Chaudhri, U.A., LL B., M. L. , 

Now President, Legislative Council, Punjab. 



urtirrYioo ( Z. K. CHAUDHRI, B.A., LL.B., Bar-at-Law. 

hDl'lORS ...{{j; H. CHAUDHRI, B.A., LL.B., Pleader. 

PRINTED AND PUBLISHED BY THE MANAGER, 
AT THE "LAW PUBLISHING PUESS," LAHOKE. 



CONSOLIDATED 

Comparative Tables showing seriatim the Volumes and 
Pages of all Indian Law Journals and Reports for the 
period specified at the top of each table, with the 
corresponding Volumes and Pages of Indian Cases. 

48 I. L. R., ALLAHABAD SERIES, FOR JANUARY-FEBRUARY, 1926. 







tfccu 




_. ._- . 


ttj <v> 






9 tuo . 






fl bO . 




Names of Parties. 


C3 o> 

lo 
&- 




Names of Parties. 


w 

Pnfl_J 
*Q Ctf " 


<u 




* 


&' 




*,3 






fn O 






V-< O 


& 




$>*$ 






$>" 


1 


Shiva Nath Prasad v. Tulsui Ram . . . 


89 4 SO 


67 


Bishnath Singh v. Basdeo Singh ... 


88 484 


4 


Faqir Cliand v. Sant Lai 


89 21)1 


70 


Nageshar Rai v. Nund Lai 


88 908 


6 


Kashi Prasad v. Mathura Prasad . . 


89 286 


73 


A. L. Browne v. 11. A. Pearce 


89 882 


9 


Jagannath Prasad v. Jugal Kishore 


89 492 


77 


Tajammul Husain v. Banwari Lai .. 


88 752 


12 


Jogamaya Dasi v. Tulsa . . 


89 444 


81 


Darshan Das v. Bikramajit Rai 


89 953 


17 


Muhamdi Bcgam v. Tufail Hasan 


92 260 


88 


Fateh Singh v. (Jopal Narain Singh 


89 1013 


19 


Zorawar Singh v. Bhagwan Singh .. 


89 427 


94 


Agha Husain v. Qasim Ali 


89 1018 


23 


Emperor v. Kamlapati Panth 


91 51 


97 


Makundi Singh r. Parbhu Dayal . . 


9O 2 


27 


Zahur Ahmad v. Taslim-un-iiissa .. 


89 40 4 


104 


Kehri Singh v. Thirpal 


92 282 


31 


Bhakta Shiromani v. Sital Nath . 


88 1018 


121 


Sultan Begam v Sarvi Begam 


9O 274 


34 


Shiam Lai v. Radha Ballabh 


88 822 


126 


Kishan Dei v. Sheo Paltan 


9O 258 


44 


Brij Raj v. Rani Sarup 


9O 749 


140 


Emperor v. Ram Harakh Pathak . . 


90 913 


58 


Muhammad Shafiq-Ullah Khan v 




145 


Ram Kunwar v. Govind Ram 


92 414 




Nuh-l llah Khan 


88 054 


150 


Mulraj v. Indar Singh 


92 471 


60 


Kanhaiya Lai v. Bhagwan Das - 


89 1053 









2<t ALLAHABAD LAW JOURNAL, FOR JANUARY-FEBRUARY, 1926. 



1 

13 
21 

26 
30 
33 

48 
52 

56 
63 
65 
67 
69 
80 

83 
88 
91 



Kuar Mata Prasad v. Kuar Nagcshar 
Sahai 

Ram Pratab Chamria v. Durga Pra- 
sad Chamria 

Mahadeo Sahu v. Sarju Prasad 
Tewari 

Narain Das v. Ram Chandra 

Amir Ahmad v. Emperor 

Sourendra Mohan Sinha v. Hari Pra- 
sad Sinha 

Bansilal Abirchand v. Ghulain Moh- 
bub Khan 

Lai Bahadur Lai v. Kamleshar 
Nath 

Ram Sarup v. Gaya Prasad 

Jagat Narain Lai v. Hawaldar 

Pirthi Nath v, Kunji Kunwar 

Kedar Nath v. Bisrnillah Begam . . 

Fatima-ul-Hasna v. Baldco Sahai ., 

Sultan Muhammad Khan v. Em- 
peror 

Bisheshar Prasad Pandey v. Raghu- 
bir 

Ahmad Husain v. Muhommad Qasim 
Khan 

Dip Prakash v, t Bohra Dwarka Pra- 
sad 

^=r^ 



91 370 

92 633 

91 871 

90 HO 

91 47 

91 1033 

92 760 

9O 988 

9O 180 

90 287 

89 369 

90 72 

93 24 

90 026 

90 353 

90 80 

90 83 



97 I Jawahir Singh v. Udai Parkash 

100 I Al aha raj Bahadur Singh T. Seth 

Hukum Cliand 

105 Lai Cliand Mar wan v. Ramrup Gir 

112 GhurahuDas v Shnkalraj Das 

116 Bakhtawar v. Sunder Lai 

120 Ahmad Husain Khan v. Hardial ,.. 

122 Dwarka Prasad v. Makund Sarup ... 

125 Jeut Koeri v. Mathura Koeri 

128 Amir Hasan Khan v. Emperor 

129 Gulab Dei v. G. 1. P. Railway 

130 Bachan Singh v. Bijai Singh 
133 Akbar Ali v. Raja Bahadur 
137 Uieo Prasad v. Narain i Bai 
118 Emperor Y. Bhima 

149 Bachan v. Raghunath 

150 Panna Lai v. Emperor 

151 Debi Din v. Emperor 
153 Daud Khan v Emperor 
155 Mimir v. Emperor 

161 Kashi Prasad v. Emperor 

162 Kadhori v. Emperor 

163 Ram Sarup v. Emperor 

165 Shyain Sunder Sinha v. Emperor ... 

167 Sumaria v. Emperor 

168 Raghunath Kaudu v. Emperor ... 



93 21C 

93 219 

93 280 

91 59 

9O 992 

9O 243 

9O 290 
90 
91 



90 



787 
37 
99 



9O 238 



91 
90 
91 



34 

938 
53 



92 26i 

40 
959 

49 
533 

588 



91 

91 

91 

91 

92 

92 452 

92 4*6 

To be 
printed. 
y| 882 
91 888 



ii INDIAN CASES. [1926 

24 ALLAHABAD LAW JOURNAL, FOR JANUARY-FEBRUARY, 1926 concld. 



170 


Kalka r. Ran jit Singh 


91 704 


224 


Emperor T. Daulat Singh 


92 743 


171 


Khamani v. Emporer 


92 584 


225 


Mohammad Ayub v. Surajpal Singh 


91 783 


173 


Abdul Hafiz Khan v. Emperor 


92 441 


227 


Lallan Misir v. Ram Richcha . . 


93 690 


176 


Abdullah v. Badr-\il-llam 


91 C34 


228 


Emperor v. Kesar 


92 591 


178 


Chhidda v. Emperor 


92 463 


230 


Jalal Uddin v. Emperor 


92 857 


180 


Ram Nath v. Emperor 


94 897 


235 


Gopal Das v. Baij Nath 


91 930 


185 


Mittar Sain v. Data Ram 


9O 3000 


239 


Faujdar Mahto v. Kmperor 


91 815 


208 


Kallu T. Emperor 


91 SOS 


241 


Radha Kishim v. Kashi Math 


92 510 


210 


Kishen Praaad v. Kunj Behari Lai 


91 790 


244 


Muhammad Ibrahim v. Ram Chan- 




215 


Baliadura T. Emperor 


92 4flO 




dra 


92 514 


21G 


Banwari r. Emperor 


91 814 


248 


Kunwar Chiranjit Singh v. liar Swa- 




217 


Banwari Lai Y. Jhunka 


92 454 




lup 


94 782 


221 1 


Qazi Fariduddin r. Emperor 


94 894 









32 
34 

42 
49 
56 

1 
11 

25 
46 
49 
60 
64 

67 
71 

73 

75 
78 

7d 

89 

91 
95 

98 
99 
102 

111 
115 

126 
138 





69 


91 


817 


84 


92 


367 








87 


SI 


949 








91 


86 


66 








107 


91 


342 




y3 


225 


111 



50 I. L. K., BOMBAY SERIES, 

India Spinning and Weaving 
Co., Ltd. v. Climax Industrial 
Syndicate 

Leon Moses v. Solomon 

Emperor v. By ram Nowroji Ga- 
madia 

Emperor v. Nathu Kasturchand 
Mar wad i 

Raghunath Rithkaran y. The Im- 
perial Bank of India, Ltd. ^ 

Emperor v. Dawood Kazi 

, 28 BOMBAY LAW KEPORTER 

Bai Shanta v. Umrao Amir Malek . . 
Mabel Pan ton v. Administrator Gene- 
ral of Bombay 
Jamshedji v. Secretary of State for 

India 
Bapu Hambira Patil v. Shankar 

BahuPatil 
Kasamkhan Alimedkhan v. Kaji 

Abdulla 
Kasamkhan Ahmedkhan v. Kaji 

Isub 
Larnbodar Dhonddeo Deo v. Bharani- 

dhar Ganesh Deo 

Collector v. Manager, Kurla Estate 
Krishnaji Vishrain Nadkarni v. 

Gangaji Ambaji Metry 
Bhimanna Ivuniaji v. Venichand 

Fattechand 
Hueensaheb Gtjbarsaheb v. Haian- 

saheb Sayad Abdul 
Hueseinsaheb Haidarsaheb v. Babaji 

Dhonddev 

Emperor v. Kazi Dawood Kazi 
Ravishankar Jagjivan v. Savailtl 

Kriehnalal 

Emperor v. Fakirbhai Nathubai . . . 
Emperor v. Umaji Krishnaji 

Sonavni 

In re Ishvarlal Maneklal Trivedi ... 
Emperor v. Tarak Das Gupta 
Emperor v. Dorabefcah Bomanji 

Dubaah 

Emperor v. Ramnath Mahabir 
Emperor T. Harjivan Valji 



Mrs. Flora Saeioon v. 
Mama 

Pestonji Shapurji r, 
Nowroji 



Ardeflhir H. 



Jarnehedji 



93 151 


141 


93 161 


143 


93 184 


148 


93 213 


158 


93 135 


161 




173 


93 127 






187 


93 195 




93 142 


193 




204 


93 123 


211 


93 215 


21T 




220 


93 218 






239 


93 222 




93 225 


337 


93 240 


243 


93 244 


2G4 


93 150 


271 


93 158 




93 247 


281 


93 232 


288 


93 690 


291 


To be 


293 


printed. 


297 




398 


To be 


300 


printed. 




94 D 





FOR JANUARY FEBRUARY, 1926. 

Parashuram Shamdasani v. Tata 
Industrial Bank 

G. 1. P. Railway Co., Ltd. v. Chandu- 
lal bheopralap 

Commissioner of Income Tax, 
Bombay v. Sanjana & Co. Ltd. ... 

Viahwunath Shamba Naik v. Ram- 
krishna 

Chunilal Mokamdas v. Mrs. E. Chris- 
topher 

Emperor v. Ramnath Mahabir 

FOR JANUARY-FEBRUARY, 1926. 

Framroz Ecluljre Dinshaw v. 

Mahomed Essa .-. 

Navanitlal Hurjivandas v. Purshot- 

tam Hurjivan 
Purshottam Hurjivan v. Navanitlal 

Hurgovandas 
Emperor v. Shan Ahmed Nabi 

Ahmed 

Saklat v. Bella 
Vaithialinga Mudaliar v. Srirangath 

Anni 
Homeshvar Singh v. Jugal Kishore 

Marwari 

Farid-un-nisa v. Mukhtar Ahmed . . . 
Soundara Raj an v. Natarajan 
Bansilal Abirchand v. Ghulam 

Mahbub Khan 
Ram Protap v. Durga Prosad 
Ja^jivandas Jamnadas v. Nagar 

Central Bank Limited 
Girdhardts Coorji v. Kerawala 

Karsandas A Co. 
Indaji Majaji v. Cooverji Nowroji 

Gamadia 

Von Wulting v. Jivandas & Co. . . 
Mahomedalli Allabux v. Jafi'erbhoy 

Abdullahbhoy Lalji 
Emperor v. Abasbhai Abdul 

Hussein 
Emperor v Kutubuddin Khan Aeh- 

raf Khan ... 

In re Mahomed Azam ... 

Emperor v. Framji Bomanji Banaji 
Emperor v. Achaldas Jethamal 
Emperor v. Pandu Ramji ,.. 

Emperor v. Maridas Lazar 
Emperor v. Shankar Narayan 

Gosavi 



91 153 

92 548 
92 517 
92 537 

92 368 

93 690 

94 21 
94 11 
94 15 

92 213 
92 200 

92 85 

9O 596 
89 049 
92 289 

92 760 

92 633 

93 619 
93 622 

93 52 

93 857 

93 918 
93 967 

93 881 
93 891 
93 896 
93 703 
93 992 
93 1051 

93 1051 



Vol. 92J CONSOLIDATED COMPARATIVE TABLES. ill 

28 BOMBAY LAW REPORTER; FOR JANUARY-FBBROARY, 1926- concld. 



302 


In re Mangru Feku Mom in . . 


To be 


509 


Shankarlal Purshottam Gor v 








printed. 




Dakor Temple Committee 


94 47 


305 


Narayan Govind Deahspanda v. 




323 


Rachel Benjamin v. Benjamin Solo- 






Dhondo Krishna Tathe 


94 76 




mon Benjamin 


94 59 


307 


Rupchand Ganesh v. Bhogilal Ratan- 




in 


Vasantrao Govindrao Prabhakar v. 






chand 


94 72 




Nanabhai Sadanand 


94 95 



1 

6 

14 
34 
42 

46 
51 

65 
76 

1 

8 

14 

23 
37 
41 

45 

51 
67 
70 
79 

83 

94 
100 
104 



169 

173 
178 

180 
183 

V 



53 I. L. R., CALCUTTA SERIES, FOR JANUARY-FEBRUARY, 1926. 

Bhupendra Narayan Singh r. Madar 

Buksh 
Bhupendra Narayan Singh v. Nara- 



pat Singh 
Bidyadhar Bachar v. Manindra Nath 

Das 
Meher Bano Khanum Y. Secretary 

of State for India 
Nareeh Chandra Bose r. Krishna 

Bhabini Dasi 

Forbes v. Ali Haidar Khan 
Dwijendra Nath Mullick v. Gopiram 

Gobiiidaram 
John Batt & Co. (London), Ltd. v. 

Kanoolal & Co. 







88 


92 


681 








95 


90 


607 








101 


89 


?26 








103 


89 


997 


115 






133 


94 


997 


129 


9O 


308 


131 


89 


200 


157 






163 


95 


21 




89 


789 





Banailal Abirchand v. Ghulam 

Mahbub Khan 
Chandi (Jharan Mitra Y Ashutosh 

Lahiri . . 

Reference from the Munsif, 4th 

Cjurt, Habiganj, In re 
Bhagat Brothers, Ltd., In re 
Counsel v. Sukumari Devi 
Barber v. Debenham 
Samserali Hazi v. Emperor 
Nagendra Nath Palit v. Kabindra 

Nath Deb 

Kabatulla v. Emperor . . 

Ramkumar Sewchand Roy v. Nanu- 

ram Poddar 



Emperor v. Isabella Coal Company 

43 CALCUTTA LAW JOURNAL, FOR JAMOARY-FBBRDIR?, 1926. 

Debendra Nath Sinha v. Nagendra 
Nath Sinha 

P Banerjee v. Bepin Behary Ghose 

Beni Madhab Sapui v. Jadu Nath 
Sapui 

SivadasDutta v. Birendra Krishna 
Dutta 



Bansilal Abirchand v. Ghulam Mah- 
bub Khan 

Homeshwar Singh v. Jugal Kishore 
Marvvari 

Ram Protap Chamria v. Durga Pro- 
sad Chamria 

Saklat v. Bella 

R. M. Watson v. F K. Watson 

Vernon Mihvard Bason v. A. H. 
Skone 

Port Canning and Land Improve- 
ment Co. Ltd. v. Achhiruddi 
Mollah 

Kuar Mata Prasad v. Kuar Nageshar 
Sahai 

Shaft Ahmed Nabi Ahmed v. Em- 
peror 

S. Soundara Rajan v. C. M. Nata- 
rajan 

Superintendent and Rememberancer 
of Legal Affairs v. Kiran Bala 
Dasi 

Nagendra Nath Roy v. Jugal Kishore 
Roy 

Gopiram Bhotica v. Bisseswar Dutt 

Mahomed Rafique v. Emperor 

Santosh Kumar Roy v. Rakhal Chan- 
dra Hazra 





108 


92 760 






110 


90 506 


113 


92 633 


116 


92 200 




94 52S 


126 


94 532 


132 




135 


92 37 


142 


91 370 


146 


92 211 


152 


92 289 


155 




171 


93 73 






176 


9O 281 


180 


93 81 




93 70 


184 




187 


94 740 






202 



Jatindra Chandra Banerjee v. Mur- 
al id hur 

Rahimuddi Meaji v. Amina Bibi ... 
Beni Madhab Mukhopadhya v. Sar- 

bananda Barman 
Sarajubalo, Roy Chowdhurani v. 

Kmmini Kumar Chowdhury 
Gnanada Gobindo Choudhuri v. 

Nalini Bala Debi 
Radha Nath Dutt v. Chandra Kumar 

Dutt 
Jamini Mohan Sarkar r. Nagendra 

Nath Pal 
Hem Chandra Jelia Y. Satya Kinkmr 

Sen 

Samserannessa v. Abdue Samad . . 
Mohendra Nath Roy v. Nabadwip 

Chandra Nandr 
Lai M^a Y Emperor 
Sudhir Chandra Daes v. Indumati 

Chaudhurani 
Victor v. King-Emperor 



30 CALCUTTA WEEKLY NOTES, FOR JANUARY, 1926. 



Rajendra Narain Dhanj Deo Y. Ku- 
mar Gangananda Singh 

In re Gopaldas Aurora 

Joriiia Aktar Khatun v. Hafizuddin 
Khan 

Upendra Mohan Roy Chowdhury v. 
Narendra Mohan Roy Chowdhury 

Low & Co. v. Hazarimull Babu 



89 737 
94 793 


186 
190 


90 633 


192 


9O 878 
94 780 


193 
196 



In ike matter of Rtjendra Kumar 

Dutta 
Superintendent and Rememberancer 

of Legal Affairs v. Sader 8aik ... 
Kalidas Kuha v. Deodhari Mistri . . 

Kondapalli Vijaynratnam v. Manda- 

paka Sudarsana Rao 
Hashmat Ali v Nasib-ul-Nisa 



92 760 

94 684 

89 289 
88 005 
91 417 

90 4 
94 731; 

94 212 

9O 542 

94 657 



95 245 

95 79 

94 907 
94 844 

94 873 

94 920 

95 130 
94 811 
94 837 
91 718 

891000 

91 935 

93 1018 

94 5 

93 1038 

94 611 
93 961 



94 893 

91 701 

Not 
reportable. 

89 733 
88 114 



199 
204 
209 
214 

215 
218 
228 

231 



1 
4 

10 
12 
15 
17 
21 

30 
32 
35 
40 



1 

3 

7 

10 
13 



18 
22 
29 

I 

18 
34 
36 
39 
42 
44 



INDIAN OASES, 
30 CALCUTTA WEEKLY NOTES, FOR JANOART, 1926 concld. 



Official Trustee of Bengal v. W. G. 

Bowden 
Taraprosad San v. Madhu Sudan 

Giri 
Gopiram Behariram v. Agents, East 

Indian Ry. and O. & R Ky. 
Sachindra Lai Hitter v. Panchanon 

Mitter 

Valliant v. Eleazar 
Maung Bya v. Maung Kyi Nyo 
Radha Kissen Goenka v. Thakursi- 

das Khemkti 
Prosonna Kumar De v. Ananda 

Chandra Bhat tachar j ee 

7 I. L. R., LAHORE 

Nand Kishore v. Sultan Singh 

Khizar Hayat v. Allah Yar Shah 

Kamir v. Mewaz 

Sunder Singh v. Ram Nath 

Crown T. Raj Pal 

Relu Mai v. Ahmad 

Mir Dad v. Crown 

Tara Singh r. Crown 
Crown v. Piara Singh 
Rang Ilahi v. Mahbub llahi 
Roshan v. Nigahia 



8 LAHORE LAW JOURNAL, FOR JANUARY, 1926. 



[1926 



r 


233 


Surendra Narain Sinha v. Bejoy 




94 857 




Singh Deodhoria 


89 785 




236 


Satya" Ncranjun Shaw v. Karnani 




91 35 




Industrial Bank, Ltd. 


93 56 




238 


Hari Mati Dasi v. Hari Dasi Dasi . . 


88 1041 


94 762 


240 


Mohammad Keshab v. Emperor ... 


91 703 




242 


Baijnath Singh v. Vally Mahomed 




94 871 




Hajee Abba 


86 332 


87 513 


248 


Lucia Jacob v. David Alexander 




9O 198 




Wills 


89 824 




254 


Brajaballav Ghose v, Akhoy Bagdi 


93 115 


93 80 


259 


Ramanuj Rai v. Dakshineswar Rai 


93 101 




263 


Srinath Bhattacharya v. Jatindra 




93 8G 




Mohan Chatter ji 


89 892 


SERIES, FOR JANUARY-FEBRUARY, 192G. 


93 1007 


42 Rugh Nath Dass-Ram Sarup v. Sul- 




93 1009 




zer Bruderer & Co. 


92 712 


931011 


50 


Sheru v. Crown 


94 406 


93 1013 


55 


Lai Chand v. Hans Kumar 


92 651 


93 1052 


61 


Jawahar Singh v. E. D. Sassoon & 




92 947 




Co 


94 377 


To be 


65 


Chet Singh v Crown 


94 401 


printed. 


70 


Ghulam Jannat v. Crown 


94 403 


94 131 


73 


Qaim v. Nura 


94 422 


94 129 


77 


Fitzholmes v. Crown . . 


To be 


94 25 






printed. 


94 27 


80 


BhikaRamv. Crown 


94 414 




Si 


Rannun v. Crown 


94 901 



Abdul Khaliq v. Fateh Mohammad 93 334 

Budhu Mai v. Gokal Chand ... 92 101 5 

Dhani v. Biru ... 93 337 

Narain Singh v, Mohan Singh ... , 93 340 
Punjab Akhbarat & Press Co. Ltd. i 

v. Ogilvie ... 93 314 



32 
35 
39 
43 
47 
51 



Ralla Singh v. Bishna 
Shankar Das v. Shambu Nath 
Singh Ram v. Kala 
Wali Shall v. Bihari Lai 
Abdul Satar v. Udha Lai 
Jagat Singh r. Crown 



49 I. L. R., MADRAS SERIES, FOR JANUARY-FEBRUAKY, 192(5. 

Hope Prudhomme & Co. v. Hamel 



and Horley, Ltd. 
Adusumilli Gopala Krietnayya v. 
Adivi Lakshmana Rao 

The Commissioner of Income Tax, 
Madras v. Krishna Chandra Gaja- 
pathi Narayana Deo 

Rukku Shetti v. Ramachaiidraya ... 



88 307 

To be 
printed. 



91 
92 



940 
342 



38 Sait Siva Pratapa Bhattadu v. A E. 
L. Mission 



49 

71 
74 
98 

116 



50 MADRAS LAW JOURNAL, 

Surendra Mohan Sinha v. Hari 

' 91 1033 



Mahammad Raza Saheb Belgami v. 

Sadasiva Rap 
Kuppu Mudali, In re 
Gam Mallu Dora v. Emperor 
Janakiram Chetty v. Nagamony 

Mudaliar 
Ayiswaryanandaji Saheb v. Sivaji 

Raja Saheb 



93 355 
93 351 

92 1012 

93 369 
93 695 

To be 
printed. 



To be 
printed. 

92 918 
9O 659 
9O 297 

93 662 
92 928 



FOR JANUARY-FEBRUARY, 1926. 



V. 

Prasad Sinha 

Kuar Mata Prasad v. Kuar Nageshar 
Sahai 

Palaniappa Chettiar v. Rajetwara 
Sethupathi A vl 

Akella Kesavaramayya v. Visamsetti 
Venkataratnam 

Bulkee Bee v. Kaka Hajee Muham- 
mad Ummar 

Ramaswanri Goundan v. Alagia 
Singaperurnal Kadavul 

Kandasami Chetty, In re 



91 
92 
92 
93 

92 
92 



370 

366 

626 

99 

823 
862 



46 

48 
49 

51 
51 

59 



Karnam Venkatsubba Rao v, Adina- 

raytna Rao 
Narayanaswami Pillai v. Gopala- 

krishna Naidu 
Pazhaniandy Tarakan v. Murukappa 

Tarakan 

Arumuga Padayachi, In re 
Addepalli Venkata Gurunadha 

Ramaseshiah v. Akella Kesava 

Ram i ah 
Raja Rajeswara Muthuramalinga 

Sethupathi Avergal v. Secretary of 

State for India in Council ( ... 



92 472 
92 483 

92 124 

91 1000 

92 973 
92 311 



Vol. 92] CONSOLIDATED OOAfPARATIVE TABLW. f 

59 MADRAS LAW JOURNAL, FOR JANUARY- FEBRUARY, 1926 concld. 



63 

07 
7* 
75 

77 
70 
90 
94 

97 | 

100 
102 
107 

112 



114 
116 
118 
120 



136 
114 

145 



10 
13 
16 
19 
22 
26 
29 
31 
36 



Commissioner of Income Tax, Madras 

v. Krishna Chandra Gajaptthi 

Narayana Deo 
Mahadeva Aiyar v llamakrishna 

Reddiar 
Vadrevu VUwasundara Kao Bahadur 

r. Vannam Paidigadu 
Venkatanaraeimha Rao v. Hemadri 

Suryanarayana 
Krishiiamachariar v. Municipal 

Council, Sri i an jfiim 
Alagirisami P>llai v. Lakshmanan 

Chetty 
Muthuvenkatarama Reddiar v. Ofli- 

cial Receiver of South Arcot 
Rukmani Animal v. Mulhurama 

Reddi 
Vasireddi Sree Chandra Mouleswara 

Prasada Bahadur v. Rameswara 

Somayajulu 
Parasurama Mudaliar v. Muthuswami 

Pillai 
Vecrasami Mudali v. Vcnkatachbla 

Mudali 
Mulkoori Gavariah v. Chenna 

Sariah 

Kancherla Pushkaramba v. Nagarat- 
namma . 

Pokala Mahalakshmi Ammal, In re 
Ayyaru Pillai r. Vuradaraja Pillai 
Ltjwanti v. Safa Chand 
Ghulam Rasnl Khan v. Secretary of 

State for India in Council 
Koyyalamudi Subanna v. Koduri 

Subarayudu 

Subhan Ali v. Imami Begam 
Imani Satyanarayana v. Devarakonda 

Satyanarayanamu rthi 
Mulugu Chengayya v. Aruvela 

Devasanamba Garu 



91 940 

92 053 

91 485 

92 P02 

91 933 

92 1021 
92 398 
92 747 

92 402 

91 313 

92 20 

To be 
printed. 

Not 

'epoi table 
9* 337 
92 770 
88 198 

86 654 

92 805 
88 347 



92 85 
92 720 

23 LAW WEEKLY, FOR 

Shaft Ahmad v. Emperor 

Bansilal Abirchand v. Ghulam Mah- 

bub Khan 
Bhupendra Narayan Singh v. Madar 

Buksh 

Bohioetti Mamayya v. Official Re- 
ceiver, Guntur 
Ravipati Rarnaiah v. Ravipati Lak- 

shmi Narayana 
Pazhaniandy Tarakan v. Murukappa 

Tarakan 
Nomula Ramayya v. Nadipineni 

Appayya 
Trustee!, Parakkat Devaswom v. 

Venkatachalam Vadhyar 
Swaminatha Odayar v. Thiagaraja- 

swami Odayar 
Kommineni Appalasvvamy v. Kom- 

mineni Simhadri Appadu 



Municipal Council, Tuticorin r. 

Shunmugha Moopanar 
Thanappa Ohetty v, Dsuf Khan 

Safe'tT 



92 312 

92 760 

92 681 

92 726 

9! 660 

92 124 

91 452 

92 709 
92 846 
92 844 
92 610 
92 753 



148 
150 
153 
157 
161 

172 
176 

1(0 
Ib3 



190 
191 

200 
205 
208 
213 

215 
221 

228 

232 
234 
237 
239 
242 



16 
51 



Venkata Siva Rao r. Chittoori Rama 

Kristnayja t 

Manepalli Satyanarayanamurthi v. 

Thommandra Erikalappa ^ 
Parakkat T)evaswom v. Venkata- 

chellam Vadhyar 
Rathan Singh v. Oommissirmer of 

Income Tax 
R:;iu r ')| i 1 ^ Pandarathar v. Tiru- 

pathia Pillai 

Unnamalai Ammal v. Abboy Ohetty 
Commissioner of Income Tax, Madras 

v Messis King and l*artridge .. 
Chittammal v. Ponnuswami Naicker 
Sundaram Aivar v. Thiyagaraja 

Pillai * - 

Venkatesam Chetty v. Mothichand 

Gulabchand 
Rajendni Narain Dhanj Deo v. 

Kumar Gangaiianda Singh 
Kahakkal v Palani Koundan 
Sethu Konar v. Ramaswami Konar 
Nidavolu Atehutam v. Ratnaji 
Govindan Nair v. Kanhirthotikayil 

Ithalutty 

Pattanayya v. Paitayya 
Rajagopalachariar v. SamiRcddi ... 
Kathamuthu Pillai v. Subramaniam 

Chettiar 

Arunachalam Ohetty v. Abdul Sub- 
han 
K :;ii?ili:n-" Mudaliar v. bhanmuga 

Mudaliar 
Solayappa Naicker v. Shunmuga- 

sundaram Pillai ' 

OlHcial Receiver, Tanjore v. Sankara 

Aiyar 

Cheggaumull Sowcar v. Desur 

Manicka Mudaliar 
Kandala 'Hiiruvenkatacharlu v. 

^Altoo Saliib 

JANUARY- FEBRUARY, 1926. 

Nowroji Rnstomji Wadia v. Govern- 
ment of Bjinbay 

Motilal Itchhalal Gandhi v. Haji 
Moos,iHi]i Mahomed 



56 

58 

63 
69 
75 
80 



81 
85 
87 



90 



Arumuga Palayachi, In re . 

Zamorin R^ja Avl, Calicut v. \en- 

katagiri P.ittar 

Lakshmana Aiyar v. Sankarapandiam 

Pillrl T1 : 

Chidnmbara-n Chettiar v. Parvatlu 

Achi 
Mahabir Prasad Tcwari v. Jainuna 

Akclla Ram-iaomayajulu v. Official 
Receiver, Godaveri at Rajahmun- 

dry 
Sankaranarayana Roddi v. Koppaya 

Reddi - 

Vadappalli Varadacharyulu v. Khan- 

davilli Narasimhacharyulu 
Subbain Goundan v. Sennimalai 

Goundan 
Vellayan Ambalam, In r* 



92 700 

92 062 

92 709 

92 1051 

95 12 

92 524 

92 iH3 

92 57o 

Not 
re portable. 

93 293 

89 737 

92 533 

94 526 
92 977 

94 557 

92 782 

93 49 

94 5G1 
93 356 

92 989 

93 3 

93 271 

94 384 
94 45S 



90 48 

83 440 

9J 1000 

92 245 

93 27G 
93 16 
92 31 

92 249 

91 973 

92 615 

92 400 

91 960 



INDIAN CASES. 
23 LAW WEEKLY, FOR JANUARY-FEBRUARY, 1926 concld. 



[1926 



92 
9 

99 
101 
103 

105 

138 

14 

149 

151 

157 

161 

168 
17S 

175 
178 
182 

186 
193 
199 

205 
210 
213 
213 
215 
219 
220 



Muthuveeraswami Nayudu v. Aii- 

namalai Chettiar 
Chittammal v. Ponnuswamy Naic- 

ker 

Kaliba Sahib v. Subbaroya Aiyar... 
Kaliappa Goundan, In re 
Venkata Siva Rao v. Kama Krist- 

nayya 
Govindoss Chathurbhujadoss & Co 

v. Sukdevadoss Ramprasad 
Sura Lakshmiah Chetty v. Kothan- 

darama Pillai 
Rarnachandra Aiyar, OiTiciaJ 

Receiver, Tan j ore v. Sankara Aiyn 
Seetharama Naidu v. Govindasami 

Chettiar 
Muhammad Yakub Sahib v. Mahaboi 

Bi Bi 
Banjoisi Narasamma v. Banjoisi 

Saraaamman 
Pachayappa Chetti v. Sivakami Am- 

mal 

Unnamali Animal r. Abboy Chetty 
Kunwar Chiranjit Singh v. Har 

Swarup 
Kuppuswamy Mudaliar T. Chokka- 

linga Mudaliar 
Nagalla Kotayya v. Koganti Kott- 
appa . , 

Noorbhai /. Karuppan Chetti 

Rama Vadhyar v. Krishnan Nair ... 
Nidavolu Atchutam r. Ratnaji 
Mahadeva Aiyar v. Ramakriahna 

Reddiar 
Sankaran v. Vattkkiniyedath Kiran- 

gat Manakkal Sreeduaran 
Muthayan Chettiar T. Panchavarna 

Nadar 
Komaraswami Chetti v. Sundara 

Mudaliar 
Vuyyuru Lakshma Reddi v. Alia 

Virareddi 
tfuthuswami Aiyyar <& Sons v. 

Ramalinga Mudaliar 
Hahalakshmi {Animal v. Venkata 

Naicker 
Lai Bahadur v. Ambika Prasad ... i 



91 1056 

92 57; 
92 62 
92 75C 

92 79( 

93 169 
88 327 

93 271 
92 971 

94 756 
92 61 

91 671 

92 524 

94 783 

91 454 

9O 551 

Not 
e portable 

93 20 

92 977 

92 653 
90 316 

93 641 
92 724 
86 957 

94 334 



93 446 
91 471 



I 



22 

23: 

240 
262 
2<55 
267 

272 

277 

281 

296 
300 

305 

308 
311 
314 
319 
320 

327 
336 

3:59 
349 
353 
361 
364 
367 



Kaliakkal v. Palani Koundan 
Kesavalu Naicker v. Corporation of 

Madras 
Dust Muhammad Khan Sahib v. 

Kadir Batcha Sahib 
Mcer Mahomed Noorulla v. Mari 

Naiijappa Nainivaru 
Dharman v. Zamiudar of Ettiya- 

puram 
Rat han Singh Y. Commissioner of 

Income Tax to the Government of 

Madras 
Mathilda Sicev. Fritz Gaebele 

Komirisplti Satyanarayaaa v. Veer- 
anki China Venkatarao 

Vemulapalli Seetharamamma v. Ma- 
ganti Appiah 

.V .: V l \ l \\ T. Ramaswamy Thevan 

>.'.- .'..! Aiyar v. Official 
Receiver, Tanjore 

Gutha Viraraghavayya v. Vemula- 
palli Ramakotayya 

Muthuraman Chettiar v. Uppaluru 

Scctharamayya 
Arunachallam Chetty v. Abdul Su- 

ban 
Venkata Gurunadha v. Kesava 

Ramiah 
Doraiswaini Aiyar v. Balasundaram 

Aiyar 
Proprietor of Pedamamidipalli v. 

R yo t s of Peda m am i d ipal 1 i 
Sanjivi Reddy v. Koneri Reddi 
Sluiinniitilui Velayuda Mudaliar v. 

Col let* tor <jf Tanjoro 
Jamanathan Chettiar v. Kanaga- 

sabapathy Chettiar 
S'atesa I^ithar v. Ganapathi Subbu 

Pathar 
\asi Aiyar v. Official Receiver, 

Tanjore 
Juduthuru Thimmappa v. Bala- 

krishna Mudaliar 
vaki Narasamma v. Kaki Venkata- 

raju 
iangayya Naidu T. Basana Simon 



92 533 
92 1053 

92 950 

93 259 
93 H 

92 1051 

To be 

printed. 

To be 
printed. 

92 827 
91 1024 

93 877 

To be 
printed. 

91 985 

93 356 

92 973 

94 420 

94 164 

93 8 

93 639 

94 955 
94 68 
93 914 

92 915 

93 686 

94 639 



(1926) MADRAS WEEKLY NOTES, FOR JANUARY-FEBRUARY. 



1 


Narayana Tyengar v Thippayya ... 


92 847 


22 


Soundararajan v. Natarajan 


92 289 


2 


Meer Mohammad Noorulla Sahib v. 




27 


Subramaniam Chetty v. Ramaswami 






Mari Nanjappa Nainivaru 


93 259 




Chetty 


91 11 


4 


Meenakshisundara Nachiar v. Veer- 




29 


VenkaUiswami v. Kotilingam 


91 1051 




appa Chettiar . . 


92 838 


32 


Han m ant Rao v. Emperor 


89 843 


5 


Suppu Chetti v. Arunachalam Chet- 




33 


Bhadrayya v. J .:,. ,v ' . 


91 1017 




tiar 


Not 


34 


Kuppuswami V. ;... g v: v. Chocka- 








reportable. 




linga Mudaliar 


91 454 


6 


Ramaswmy Chetty v. Chengalroya 




36 


Subbramaniam Patter v. Velu Nair 


92 481 




Pillai 


94 892 


38 


Gonnabathnla Thammayya v. Gonna- 




7 


Imani Satyanarayana v. Devarakonda 






bathula Chinnayya 


92 594 




Satyanarayanamoorthy 


92 85 


40 


Kasturi Narasimha Suryanarayana 




8 


Rajamanicka Chetty v. Venkata- 






v Achuthana Lakshminarasimham 


91 924 




ramanaRao 


93 84 


41 


Nee Jam Venkataratnamma v. Venja- 




9 


Butchiraj u v. Seetharamay ya 


93 955 




moori Narasimhacharyulu 


92 470 


11 


Vaithilinga Mudaliar v. Srirangath 




45 


Rarnu Chetty v. Panchammal 


92 1028 




Anni 


92 85 




^ 1 


J3 



Vol. 92] CONSOLIDATED COMPARATIVE TABLES. 

(1926) MADRAS WEEKLY NOTES, FOR JANDARY-FBBRUARY-COIICICL 



Yii 



4 

4 

6 
63 



66 



69 

73 

81 



94 

96 

101 
106 

108 
112 

114 
116 
117 

118 
120 
121 

123 
124 

126 
128 



Vonkatarama Iyer v. Sundaram Iyer 92 1045 
Surendra Mohan Sinha v. Hari Pra- 

sad Binha ... 9 1 1033 

Shall Ahmed v. Emperor . . 92 212 

Muthu Veerappa Chettiar v. Siva- 

gunmatha Pillai . . . 92 603 

Pasumarti Seethanna r Thammandra 

Yasikalappa .. 91 765 

Manem Ayyanna v. Pultrarti Veera- 

bhadram ... 91 771 

Tulasidais Oovindjee v. Madhava- 

dass Laljee ... 92 570 

Raja Rajindra Narain Dhanj Deo v. 

Kumar Gangananda Singh .. 89 737 
Nntarajan v. Muthiah Chctty ... 95 972 
Rarnalinga Mudaliar v. Arunachala 

Mudaly .. 93 338 

Knar Mata Prasad v. Knar Nageshar 

Sahai ... 91 370 

Vasudevan Y. Arunachala Iyer . . 93 1 
Ram Pratab Chainria v. Durga Pra- 
sad Chamria . . 92 633 
Nag Kuer v. Sham Lai Sahu . . 92 274 
Venkatachariar v. Pachayappa 

Chetty ... 92 516 

Bansilal Abirchand r. CJhulam 

iMahbub Khan ... 92 760 

Thirumalachariar v. Atimoola Kara- 

yalar . . 92 776 

Poovanalingnn Servai v. Veerayi .. 92 1055 
Kuehu Iyer v. Vengu Amnml . . 93 360 
Ramasami Uoundan v. Alagia Singa- 

perumal Kadarul ... 92 823 

Ram as \vami lyengar v. Raghava 

lyengar ... 92 1046 

Muthu veeraswami Nayudu v. An- 

namalai Chettiar . 91 105G 

Chittammal v. Ponnuswamy Naic- 

ker .. 92 573 

Caliba Sahib v. Subbaroya Aiyar 92 621 

Sohisetti Mamayya v. Official Re- 
ceiver, Guntur ... 92 726 
^avipati Ramaiah v. Ravipati Lak- 

shrni Narayana ... 91 660 

deputy Collector, Cocanada v. The 
Maharaja of Pittapur . . 93 651 



129 
131 
135 
137 
140 
141 
143 



146 
147 
149 

152 
156 
159 
162 
163 

165 
167 

169 

169 
172 
174 

178 
180 

182 
192 



Arunaohalam Chetty Y. Abdul Suban 
1 Sahib 
Proprietor of Kalagampudi v. Ryots 

of Kalagampudi 
Numula Ramayya v. Nadipinerii 

Appayya 
Madura Hindu Premanent Fund Ltd. 

v Kainakshi Ammal 
Swaminatha Odayar v. Thiagaraja- 

s warn i Odayar 
Akolla Kesavaramayya v. Visamsetti 

Venkataratnam 
Bulkee Bee v. Kaka Hajee Muham- 

mad Ummar Shaib 
Chiranjit Singh v. Har Svvarup 
Kandasami Chetty v. Emperor 
Arumuga Padayachi v. Emperor 
Venkata Qunmadha Ramaseshiah v. 

Kesaya Ramiah 
Lakshmana Aiyar v. Sankarapandiam 

Pillai 
Chidambaram Chettiar v. Parvathi 

Achi 
Ramachandra Aiyar Y. Sankara 

Aiyar 
Seetharama Naidu Y. Govindaeami 

Chettiar 
Banjoisi Narasamma v. Banjois'i 

Sarnsamman 

Muthu Pillai v. Alagirisami Pillai 
Govinda Pillai v. Ramanathan Chet- 

tiar 
Akclla Ramasomayajulu v. Official 

Rcceirer, Godaveri at Rajahmun- 

dry 
Tiruvangalath Nellyoton Paidal 

Nayar v. Emperor 

Chittammal v. Ponnuswamy Naic- 
ker 



Mallappa v. Neelana Gowdra 

Karc Gowd 
Kaliba Sahib v. Subbaroya Aiyar.. 
Munuswamy Pillai v. Madhi Hussain 

Khan Sahib 
Visvanatha Mudali v. Doraiewamy 

Chinnatha Rowther v. Karunji Andi 



9 NAGPUR LAW JOURNAL, FROM JANUARY TO MARCH, 1926. 



1 

3 

7 

11 

17 



1 

5 

11 



13 



Narayandas v. Pandurang 
Ramchandra v. Lakshman 
Narayandas v. Radhabai 
Khurshid Begam v. Abdul 
Shanker v. Vithaldas 



93 212 

92 803 

93 196 
92 913 

To be 
planted. 



22 
34 
40 
43 
45 



Shanker Rao v. Pandurang 
Purushottam v. Sahu 
National Stores v. Ramsaran 
Bhagwan v. Emperor 
Ramu v. Puna 



93 356 

94 164 

91 452 
94 487 

92 846 

92 626 

93 99 

94 782 
92 862 

91 1000 

92 973 

93 27(5 
93 1C 
93 271 
92 976 

92 61 
91 961 

91 714 

92 249 
92 624 
92 577 

3 625 

92 621 

94 453 

91 193 

93 644 



92 646 

91 295 

94 380 

94 406 

94 3*6 



22 NAGPUR LAW REPORTS, FOR JANUARY-FEBRUARY, 1926. 



Ma 1 - '1 -- : - i. 1 v. Emperor 

Templo of Sri Ramchandra 
Khamlia v. Kanhaiyalal 

Maruti v. Ukarda 



of 



91 242 

92 121 

To be 
printed. 
94 741 



14 
17 
19 
23 
28 
30 



Asabi v. Kanhyalal 
Sli-T-iisiiri v. Kalusingh 
Piluram v. Mahadeo 
Purushottam v. Sahu (lend , 

Padmun Singh v. Subransai 
Samsherkhan v. Abdul Sattarkhan. 



94 754 
SO 734 
91 290 

295 
791 



91 
94 
94 



70 



Tilt 



i 

G 
10 
15 

19 
37 

42 
49 

53 
55 
61 

69 

95 

109 

111 

115 

121 



145 
156 



160 
165 

1*8 
171 
176 
181 
186 
191 
195 
198 
201 
J04 
210 
213 
217 
222 



INDIAN OASBfi. 

29 OUDH OASES, FOR JANUARY-FEBRUARY, 1926, 



[1K6 



1 


Girdhari Lai v. Emperor 


86 993 


23 


Munnu Lai v. Hirde Ram 


86 1008 


7 


Karya Singh v. Shira Katan Singh 


86 913 


24 


Lulta Prasad v. Ma ha raj Bahadur 


87 316 


10 


Uma Nalh Bakhsh Singh v. Janki 




26 


Ahmad Mirza Bog v. Allahabad Bank 






Bakhsh Singh 


86 864 




Ltd., Lucknow *-. 


94 317 


14 


Maharaj Din v. Balbhaddar Pra- 




31 


Ram Parkiish v. Junki Prasad 


88 203 




sad 


85 481 


37 


Qudratullah Khan v Gulqandi . . 


89 570 


15 


Gaya Praia d v Jagan Natli 


86 932 


44 


Nowal Kislmre v ISmperor 


89 147 


18 


Mathura Prasad v. Kunwar Bahadur 




51 


A dial Singh v. Shnghunath Kuar 






Singh 


87 284 




Babuain 


9O 470 


21 


Kandhai Lai v. Anantu 


87 172 









13 OUDH LAW JOURNAL, FOR JANUARY-FEBRUARY, 1926. 



Abdul Ohani v. Mustafa Husain ... 
Sheo Nandan v. Hira Lai 
Rais-un-riisa v. Zorawar Sah 
Saheb Din Raghubur Dayal v. East 

Indian Railway 
Kuar Mata Prasad v. Kuar Nageshar 

Sahai 
Abhaidat Singh v. Ragho Indar 

Partab Sahi 
Parbhu v. Puttu 
Peoples Industrial Bank Allahabad 

v Mahesh Charan Sinha 
Karingan v. Harihar Dutt 
Gopal Das v. Ram Pbal 
Sidheshwar T. Ganga Sagar 

Mukta Prasad v. Emperor 
Sukh Lai v. Murari Lai 
Sheo Ram v. Tula 
ft'iL'hsibnr Singh v. Gokaran 
>v:".ari of State for India in 

Council v. Har Charan Das 
Gajraj Singh v. Kanhu Singh 
Sarju v. Sheoraj 



, 126 


93 645 ! 


92 247 132 


92 675 ; 




138 


93 22 


144 




146 


91 370 


147 




119 


91 976 




95 995 


152 




154 


93 631 




9 34 


160 


92 685 




To be 


166 


printed 




9* 193 


167 


95 1019 




93 1023 


170 


93 833 


172 




174 


91 927 




91 942 


176 


94 179 


178 



Pirtha Singh v. Mohammad Ali 

Mohammad Khan 
Ganga, Bakhsh Singh v. Mania 

Bakhsh Singh 
Chandoo v. Mnrli Dhar 
Manni Lai v Sajjad Husain 
Ram Adhin v. Riasat Ali 
Amina Bibi v. Kalka Singh 
Bishwanath Prasad v. Abdus Samad 

Khan 

Gur Prnsad v. Sitla Dei 
Tullu v. Thakumin Srimati Indar 

Knar 
Ram Prasad v. Khusal Singh 

Masih 1'ddin Ahmad v. Munir 

Ahmad 
Faqjr Mohammad Khan v. Shamhhu 

Dat 

Ram Dayal v. Nisar Husain Khan . . 
Hasib-un-nisa v. Bishnath 
Kunwar Lai Bahadur v. Bcni 

Madho 

Manzur Husain v Vikalat Fatima... 
Hasan Baqar v. Shoo Narairi 

Singh 



*3 OUDH WEEKLY NOTES, FOR JANCJARY-FEBRUARY, 1926. 



Bengal North Western Railway v. 

Bansi Dhar . . 

Saheb Din Raghnbar Dayal v. 

East Indian Railway Company, 

Limited 

Emperor v. Parakh 
Shall Ahmed Nabi Ahmed v. Em- 
peror 

Chiranjit Singh v. Har Swamp 
Mathura Prasad v. Emperor 
Dubri v. Ram Naresh Singh 
Phuljhari v. Har Prasad 
Mahadeo Prasad v. Ram Phal 
Mahabir v. Ram Saran Singh 
Ummatul Fatima v. Ali Akbar 
Jhalri v. Rama Bharose Pandey . . 
Bilodarv. Emperor 
Ram Nath v. Emperor 
Dilawar Khan v. Kulsum Bibi 
Sitla Bakhsh Singh v. Gulab Singh 
Dasrath v. Sandala 
National Bank of Upper India, 
Lucknow v. Dina Nath Sapru . . 



92 603 


228 




231 


93 22 


233 


92 744 


237 


92 212 




94 782 


241 


93 66 


245 


93 297 




93 378 


248 


92 685 


260 


93 108 


267 


95 271 




93 53 


274 


93 145 


277 


93 352 




93 02 


279 


93 927 


284 


93 310 




95 234 


* 



Mahomed Saadat Ali Khan v. Kuer 

Lai 

Ramdei v. Jlumni Lai 
Ram Suchit v. Kalaka Prasad 
People's Industrial Bank Ltd., 

Allahabad v. Mahesh Charan 

Sinha 

Raghubar Singh v. Gokaran 
Ganpat Sahai v. Koshalendra Pratab 

Sahi 

Sukh Lai v. Murari Lai 
Parbho v. Puttu 
Ram Shankar Singh v. Lai Bahadur 

Singh 

Sheo Ram v. Tula 
Devendra Nath v. Ram Rachpal 

Singh 

Yusuf Khan v. Riyasat Ali 
Haidari v. Nariandra Bikramjit 

Singh 



94 188 

92 613 

92 732 

93 272 

95 463 
95 486 

94 788 
94 796 

93 873 

To be 
printed. 

91 1020 

91 1014 
91 1031 
91 867 

91 1043 
91 1016 

91 917 



93 912 
95 596 
93 951 



93 
93 



631 
833 



93 962 
95 1019 
95 995 

92 637 

93 1023 

93 302 
93 446 



93 677 



*NOTE. Decisions of the Board of Revenue, 
U. P. not printed in Indian Cases.-r-[#cJ.] 



Vol. 92J CONSOLIDATED COMPARATIVE TABLES. 

5 I. L. R., PATNA SERIES, FOR JANUARY-FEBRUARY, 1926. 



1 


Aditya Prasad Singh v. Ram Nara- 




63 


Jagwa Dhanuk v. Emperor 


93 884 




yan Das 


87 531 


80 


Midnapur Zamindari Co., Ltd. v. 




8 


Subedar Kai v. Rambilas Rai 


9O 817 




Ram Kanai Singh Deo Darpa Saha 


91 169 


13 


Raj end ra Narayan Bhanja Deo v. 




96 


Mahanth Tokh Narayan Pun v.Ram 






Commissioner of Income Tax, B. 






Rachhya tiingh 


90 806 




&O. 


91 288 


106 


Agent of the Bengal-Nagpur Rail- 




20 


Ambika Prasad Singh v. Commis- 






way Company, Limited v. Hamir 






sioner for Income Tax, Bihar and 






Mull Chagan Mull 


9O 374 




Orissa 


93 999 


110 


Ramohandra Modak v. Emperor ... 


93 963 


23 


Khudi Rai r. Lalo Rai 


931001 


118 


Great Indian Peninsula Railway v, 




25 


Siban Rai v. Bhagwat Dass 


92 219 




Datti Ram 


90 812 


33 


Daroga Oope v. Emperor 


881045 


128 


Radhe Lai r. East Indian Railway 




40 


Peari Dai Debitors v. Naimish 






Company, Limited 


9O 680 




Chandra Mitra 


9O 822 


135 


Sourendra Mohan Sinha v. Hari 




46 


Bibi Wajihunnissa Begum v. Babu 






Prasad 


91 1033 




Lai Mahtou 


9O 871 


1-S7 


Sib Sahai Lai v. Sir Bijai Chand 




58 


Hira Bibi v. RamHariLall ... 1 89 659 




Mahtab 


9O 862 


(1926) PATNA CASES, FOR JANUARY-FEBRUARY. 


1 


Sri Sri Baidyanath Jiu v. Har Dutt 




29 


Ramdhani Singh v. Kewai Mani 


i * 
' " ^ 




Dwari 


94 826 




Bibi 


9O 929 


4 


Sheikh Abdul Ghaifar v. Mrs. F. B. 




34 


Kuldip Singh v. Kumar Kamakhya 






Downing 


94 841 




Narain Singh 


93 300 


9 


Bibi Hafsa v. Kaniz Fatima 


96 3 


37 


Badri Narayan Singh v. Mahanth 




11 


Uma Jha v. Chetu Mandar 


95 187 




Kailash Gir 


93 303 


13 


Ramyad Dusadh v. Emperor 


95 273 


40 


Hansraj Sangechi r. Jogesar Prasad 


88 1020 


16 


Mahari Dhangar v Bnldeo Narain .. 


90 657 


42 


Malik Mukhtar Ahmad v. Wasi 




19 


Sib Sahai Lai v. Sir Bijai Chand 






Ahmad Khan 


93 289 




Mahtab .- 


90 862 


44 


Madaran Kassab v. King-Emperor 


86 964 


24 


Sheikh Mabub Bakhsh v. Mahmu- 




49 


Ram Golam Sahu v. Chintaman 






dan 


93 273 




Singh 


93 939 



7 PATNA LAW TIMES, FOR JANUARY-FEBRUARY, 1926. 



1 


Sadhu Sao v. Awadh Bihari Saran 




71 


Prasana Kumar Banerji v. Kaleyan 






Singh 


89 802 




Char an Mandal 


90 352 


4 


Diljau Ali v. Akhtari Begum 


88 1035 


73 


Kesho Prasad Singh Bahadur v. 




9 


Sheikh Imdad Ali v. Nand Kumar Lai 


88 478 




Lakhnath Roy 


89 21 


11 


Asharfi Dhimar r. Muhammad 




75 


Garbhu Mahton v. Bibi Khudaijatun- 






Dindalal 


88 989 




nissa 


89 170 


14 


Jamal Momim v. King-Emperor ... 


86 153 


79 


Jang Bahadur Singh v. King-Em- 


* 


19 


Raja Rajendra Narain Bhanj Deo 






peror 


93 40 




y. Kumar Gangananda Singh ... 


89 737 


82 


Bhiumath Misra v. Jaggarnath 




22 


Lekhraj Mahton v. Jang Bahadur 






Prasad 


89 814 




Singh -. 


89 822 


871 


Bambhadur Lai v. Gangora Kuer ... 


89 232 


25 


Sham Narayan Singh v. Basdeo 




90 


G. I. P. Railway Co. v. Rameshwar 






Prasad Singh 


88 537 




Prasad 


9O 687 


27 


Nazirul Hassan v. Abdul AVahab 




95 


Sadho Saran Pande v. Subhadra ... 


89 195 




Khan 


89 811 


97 


Sourendra Mohan Sinha v. Hari Pra- 




30 


Badri Gopo v. King-Emperor 


93 146 




sad 


91 1033 


35 


Tulshi Prasad Ram v. J. A. W. Wil- 




111 


Jogindra Narayan Chaudhuri v. 






son 


90 74 




Chinai Muhammad Sircar 


89 275 


30 


Ram Saran Singh v. Mohammad Jan 




114 


Ranjit Narayan Singh v. Ram Ba- 






Khan 


89 706 




hadur Singh 


94 593 


39 


Bibi Hajo v. Har Sahay Lai 


89 992 


124 


Rai Kashinath Singh Bahadur v. 




42 


Sir Rameshwar Singh Bahadur v. 






Kailas Singh 


89 236 




Durga Mandar 


90 454 


127 


Lachman Sahay v. Gauri Charan 




45 


Sudha Krishna Mukerji v. East 






Mahton 


94 556 




Indian Railway Company 


9.1 1 


129 


Debi Prasad Dhandhaya T. Mahesh 




47 


Sahdeo Singh v. Kishun Behari 






Lai 


89 32 




Pandey 


90 559 


134 


Raghunandan Thakur v. Babu 




49 


Sheodhari Rai v. Jhingur Rai 


83 993 




Kishundeo Narain Mahta 


To be 


52 


Ram Chandra Singh v. Jang Baha- 
dur Singh 


9O 553 


136 


Thakur Sao v. Abdul Aziz 


printed. 
91 41 


57 


Radhe Lai v. East Indian Railway 


9O 680 


138 


Kawleshwar Lai v. Satya Brata 




611 


Ramjea Prasad v. Bishundutt 


<?O 244 




Banarji 


9O 194 


65 


Gokul Tatwa v, King-Emperor ... 


89 1030 


140 


East ladian Railway Co. v. Gober- 




6fc 


Haro Mandal v. Dhiranath Das ... 


9O 691 




dhan Das 


9O 790 



INDIAN OASES. 
27 CRIMINAL LAW JOURNAL, FOR JANUARY-FEBRUARY, 1926. 



[1926 



i 

2 

4 

5 

6 

7 

8 

9 
11 
15 
17 
II 
19 
21 
21 
22 
23 

24 
26 
27 
29 
30 
32 
33 
35 
37 
38 
40 
43 
44 
44 
46 
49 
57 
60 
62 
61 
65 
66 
68 
69 
71 
73 
74 
75 
76 

77 
80 
81 

83 
84 

87 
88 
19 

90 
90 
91 
95 

97 

98 
100 



Jowanda Mai v. Emperor 

Akbar Ali v. Raja .Bahadur 

Emperor v. Syed Khan 

Amir Hasan Khan v. Emperor , . 

Harihar Dat v. Maksud Ali 

Data Ram v. Emperor 

Panna Lai v. Emperor 

Thakur Sao v. Abdul Aziz 

Emperor v. Param Hukh 

Amir Ahmad v. Emperor 

Daud Khan v. Emperor . . 

In re Ayyaperumal Pillai 

Kamlapati Punth v. Empsror 

Emperor v. Ohet Khan 

Emperor v. Bhima 

Yamunabai v. Emperor 

Nazar Muhammad Khan v. Hara 

Singh Bedi 

Sham Sunder Lai v. Emperor 
Feroze v. Emperor 
Ghurahu Das v. ShakJilruj D<IB 
Bell v. Emperor 
Payakkal v. Athoppa Ooundan 
Hyder v. Emperor 
In re Manargan 
Jairaj Singh v. Bansi 
Jamna v. Emperor . . 

Ismail v. Emperor 
Nathoomal v. Emperor 
Lachmi Kuer v. Parian Narain 
Rampratab Marwari v. Satif 
Abdul Wahab v Emperor . . 

In re Vodde Subbigadu 
Rupan Singh v. Emperor 
Bhttlan v. Emperor 
Kudaon v. Emperor 
Sheo Shankar v. Emperor 
Samundar v. Emperor 
Ohainu v. Emperor 
Mahadeosingh v. Emperor 
Nago v. Atmaram 

In re Bhau Vyaukatesh Chakorkar 
Bajirao v. Dadibhai 
Abdullah v. Emperor 
Ritha v. Emperor 
Jawala Singh v. Madan Gopal 
Selvamuthu v. Chinnappan Chet- 

tiar 

Ahmed v. Emperor 
Hamid Ali Bepari v. Emperor 
Public Prosecutor, Madras v. Kimidi 

Annam Naidu 

Fateh Bahadur v. Abdul Raheem 
In re Appaswamy Iyer 
Ghaza Ali v. Emperjr 
Abdul Ali Sahib v. Amiruddin ... 
Vishnoo Nainaram v. Dipchand 

Sitaldas 

In re Dyta Seetharamayya 
Emperor v. Radho 
Ramakrishna Iyer v. Sithai Ammal 
Denepudi Narasayya v. Chiguluri 

Venkiah 
Ramachandran Servai v. President, 

Union Board 

Emperor v. Qadir Bakhsh Shah ... 
In re Peramasami Ragudu 



91 

9r 

91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
9! 
91 
91 
91 

91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
91 
9! 
91 
91 
91 
91 
91 
92 
9i 
91 
91 

91 
91 
91 

91 
91 
91 
91 
91 

93 
HI 
91 



.33 
34 
36 
37 
33 
39 
40 
41 
13 
47 
40 
50 
51 
53 
53 
51 

55 

56 

5- 

50 

61 

62 

64 

65 

67 

61) 

70 

72 

75 

76 

76 

78 

22.1 

231 

236 

238 

210 

241 

242 

244 

245 

247 

249 

250 

251 

252 
253 
256 

385 
3H7 
388 
301 
392 

393 
394 
394 
395 



91 399 



91 
91 
91 



529 
530 
532 



101 
104 

105 

107 

107 

108 

10:) 
110 
in 

115 
113 
114 

in 

121 



120 

127 
128 
1-29 

132 



134 
136 
137 
13!) 
140 
142 
142 
113 
145 

146 
147 
150 
152 
153 
158 
159 

160 
161 
16 r ) 
170 
175 
176 
177 
181 
182 

184 
1H5 
183 
186 
190 
191 
192 
193 



Munir v. Emperor 

Fazal Ahmad v. Abdullah Khan ... 

Ramaawaini Chettiar v. Rama- 

nalhan Chettiar 
Buhri v. Emperor 
Devasikamam Mudaliar v. Narayana 

Prasad 

Ramaswariti v. Emperor ... 

Ahmad v. Emperor 
Ismail Sha v Emperor 
Emperor v Snbrao Sesharao 
Alia v. Emperor 
Piru Rama Uavaldar v. Emperor 
Hunrmt AH v. Emperor 
Emperor v. Abdul Gani Bahadur- 

bhai 

Chogatta v. Emperor 
Emperor v. Chand Mahaboob 
Superintendent and Remembrancer 

of Legal A (Taiis, Bengal v. Sader 

Saik 
Marmlayya Thevar v Shunmuga 

sundara Thevar 
Mohamad Keshab v. Emperor 
Kalka v. Ranjit Singh 
Thomas James Henry Arnup v. 

FCedar Nath Ghosh 
Qadir BakhsU v. Emperor 
Shaikh Garib H.iji v. Muchiram 

Sahu 

Nazir Singh v. Emperor 
Kallu v. Emperor 
Raines war Singh v. Emperor 
Lahanu Manaji v. Emparor 
Pakhar Singh v. Emperor 
Baiiwari v. Emperor 
Ohhakauri Lall v. Isliar Singli 
Fuujdar iMahto v. Emperor 
Ram Pdda Ohatterjce v. Basanta 

Baishnabi 

Sumaria v. Emperor 
Praf ulla Kumar Roy v. Emperor . . 
Emperor v. Karim Kajmahamad ... 
Raghunath Kandu v. Emperor 
Smith v. Emperor 
Dip Singh v. Emperor 
Maharani Dassi v. Commissioner 

of Police, Calcutta 
Kutta Bella Ravat v. Emperor 
Sheosatyanarayanlal v. Emperor . . 
Gamadia v. Emperor 
Lai Singh v. Emperor 
Debi Dm v. Emperor 
In re Vollaynn Amhalam 
Ernp^ror v. Mohit Kumar Mukerjee 
Wdsudeo v. Emperor 
Bircndra Nath Chatterjee v. Uma- 
nanda Mukherjee 
In re Arumuga Padayachi 
Hanmantrao v. Emperor 
Harnam Singh v. Emperor 
Diwan Dhimar v. Emperor 
Abdulla v. Emperor 
Kashi Ram Khosla v. R. L. Diskshit 
Gahra v. Emperor 
Abdullah v. Emperor 



91 533 

91 536 

91 537 

91 539 



91 
91 



539 
540 



91 541 

*< I 542 

91 543 

91 544 

91 689 

91 690 

91 600 

91 097 

91 699 



91 701 

91 702 

91 703 

91 704 

91 801 

91 804 

91 805 

91 806 

91 808 

91 809 

91 811 

91 812 

91 814 

91 814 

91 815 

91 881 

91 882 

91 833 

91 8S6 

91 888 

91 889 

91 891 



91 895 
91 896 
91 915 
91 1)19 
954 
959 



91 
91 

9! 960 
91 993 
91 997 

91 998 
91 1000 
91 1001 
91 1002 
91 1002 
91 1006 
91 1007 

91 1003 

92 145 



Vol. 92] CONSOLIDATED COMPARATIVE TABLfeB. 

27 CRIMINAL LAW JOURNAL, FOR JANUARY-FEBRUARY, 1926 concld. 



210 

211 
212 
215 
217 
218 
220 
222 
223 
225 
228 

229 
230 

231 
232 
233 
235 
238 
239 

240 
241 
243 
247 
248 
249 
250 
251 



1 
2 
9 

13 
16 



1 

7 
17 

18 

20 
21 
22 
27 
29 
30 
33 
34 
35 
36 
41 
43 
44 
45 
46 



Y'shwanath Prasad Pandey v 

Emperor ^ 92 162 j 
Abdul Qadir v. Emperor .. Q 103 
Bajirao v. Dadibai .. 92 161 
Partap Singh v. Emperor . 92 1(>7 
Rahimbeg v. Emperor .. 92 160 
Ram Charan v. Emperor . 92 170 
Uttim Singh v. Judhan Rai . 92 172 
Bhajiratl-i v. Emperor ... 92 174 
Pali v. Emperor .. 92 175 
Hashmat Hussain v. Emperor . . 92 209 
Shaft Ahmad Nabi Ahmad v. Em- 
peror ... 92 212 
Akbar Ali v. Emperor ... 92 213 
In the matter of K. M., First Grade 

Pleader . 92 214 

Tuisi v. Emperor ... 92 215 

Amiruddin v. Emperor ... 92 216 

Hari Singh v. Emperor ... 92 217 

Siban Rai v. Bhagwat Dass . . 92 219 

Lachhman ^i-iir* v K :-.:>eror .. 92 222 
Surendra N::i Hv. 1 . i v. Shashi 

Bhushan Sarkar ... 92 223 

Miran v. Emperor . . 9-2 224 

Pohlav. Emperor .. 92 417 

Kishanchand v. Emperor .. 9i 419 

Daya Kam v. Emperor . 92 423 

Momoon v. Ibrahim . 92 424 

Qaim Din v. Emperor .. 92 425 

Ram Sarup v. Emperor . 92 42Q 

Gulabchand Rupji v. Emperor .. 92 427 

ALL INDIA REPORTER, 

Privy Council. 

Chiranjit Singh v. liar Swarup ... 

Man Singh v. Nawlakhbati 

Lai Chand Marwari v. Mohant 

RamrupGir 
Maharaj Bahadur Singh v. Solh 

Hukum Chand 
lawahir Singh v. Udai Parkash 

Allahabad High Court. 

Kishan Dei v. Sheo Paltan 

Mitar Sain v. Data Ram 

De Mello v. New Victoria Mills Co., 

Ltd. 
Jorhawan r. Municipal Board, Go- 

rakhpur 

Mohamdi Begam v. Tufail Hasan . . 
Dvvarka Prasad v. Makund Sarup .. 
Hasan Ali v. Emperor 
Kamalapatti Panth v. Emperor 
Basanti Bai v. Nanho Mai 
Kanhaiya Lai v Bhagwan Das 
Muia v. Einparor 
Kumari v. Adit Misir 
Agha Husain v. Qasim Ali 
Brij Raj v. Ram Sarup 
Pirfchi Nath v. KunjiKoer 
Tajammul Husain v. Banwari Lai 
Brij Behari Lai v. Emperor 
Bijai v. Narain 
Ahmad Husain r. Muhammad Qasim 

Khan 



94- 782 

94 830 

93 280 

93 219 

93 210 



90 358 

87 724 

90 287 

88 814 
92 2(50 
90 2i)0 

?2i) 
51 

89 357 

89 105, J 

90 150 
89 37!) 

89 1018 

90 749 
8^ 369 
88 752 
88 724 
88 5U2 



91 



232 
253 
251 
257 
263 
265 
2(iG 
274 
275 
276 
377 
278 
280 

283 
284 
285 
28G 
287 
289 
296 
297 
299 
300 
300 
301 
302 
302 
303 
303 



Kallu v. Emperor 
Champa Devi v. Pirbhu Lai 
Nga V\ T ;i Gyi v. Emperor 
"Woodtt'nrd v. Emperor 
Koramat Mandal v Kmporor 
Abdul llniiz Khan v Empeior 
Khijiruddiu v Emperor 

Hfitun Mani v. Hans Ram 
Bhola v. Emperor 

Kadhori v. Emperor 

Keramat Mandal v. Emperor . . 

Banwari Lai v, Jhunka 

Thokala Seshainma v. Yellaturi 
Venkamma 

Madat Klian v. Emperor 

Bahadur v Emperor 

Tcja Singh v. Emperor 

Chandiram v. Emperor 

Chhidda v. Emperor . . 

Ram Kuran v. Emperor 

Klmmani v. Empoior 

Indar Singh v. Emperor 

\Vasal v. Emperor 

Kashi Prasad v. Kmperor 

limperor v. Gulab . . 

Krishna Gopal T. Emperor 

L. A. Morrison v. H. M. Crowder ... 

Emperor v. Ghulani Mohammad 

Emperor v. Kesar 

KaLip Xath v. Emperor 



FOR JANUARY-FEBRUARY, 1926. 

Allahabad High Court contd. 



90 80 



47 
48 

50 
55 

57 
58 

62 
C>4 
05 
60 
67 
68 
70 
71 



79 
82 
83 
85 
87 
89 
90 
93 
95 
101 



92 428 
92 429 
92 430 
92 433 
92 439 
92 441 
92 442 
92 450 
92 451 
92 452 
92 453 
92 454 

92 456 

92 459 

92 460 

92 461 

92 462 

92 463 

92 577 
584 



Bankey Lai Kapoor v. Allahabad 

Bank Ltd. 
Shanq Ullah Khan v. Nuhullah 

Kb an 

Nathu Lai v. Raghubir Singh 
Hafiz Zahur Ahmad v. Taslim-un- 

nissa 

Ram llarakh Pathak v. Emperor . . 
Biaheshar Prasad Pandey v. Raghu- 
bir 

Rain Kuer v. Goviiid Ram 
Jai Narain Singh v. Mandhai Singh 
Lakhaii Singh T. Babu Ram 
Bhagwan Rai T. Jaddu Raj Rai ... 
Nageshwari Rai T. Nand Lai 
Hot Ram v. Dat Prasad Singh 
T.i^.'iMiaxiL Dati v. Tulsa 
Dip Prakash v. Dwarka Prasad 
Meliarban Singh v, Pauna Lai 
Shankar Kurmi v. Md. Moqim Ali 

Khan 

Piaro Lai v. Sri Thakurji 
Komil Prasad v. Bharat Indu 
Srilal Goaika v. Kesho Das 
Bhagwan Din v. Sri Kishen 
Zahid Ali v. Suk.hu Lonia 
Jagann.iLh Piasad T. Jugul Kishore 
Ballabh Das v. Sri Kishen 
Begam Sultan v. Saryi Begam 
Sheo Prasad T. Naraini Bai 
Lakshnii Fldur Mills Co., In the 
matter of 



585 



92 
92 

92 587 
92 5S8 
92 
92 



588 
589 
92 590 
92 590 
92 591 
92 591 



88 848 

88 954 

89 946 

89 404 

90 913 

90 353 

91 4H 
88 535 
88 1021 
88 746 
88 908 

88 829 

89 444 
O 83 
89 617 

88 927 

88 964 

69 466 



87 
89 
89 



368 
161 
509 



89 492 

89 581 

90 274 
9O 91S 

89 9W 



rii INDIAN OASES. 

ALL INDIA REPORTER, FOR JANUARY-FEBRUARY, 1926 contd. 



[1W6 





Allahabad High Court concld. 






Bombay High Court~ concld. 




102 


Mulraj v. Indar Singh 


92 471 


40 


Rachappa Chanbasappa v. Ningappa 




103 


Misri v. Rajmati 


89 849 




Kasappa 


91 349 


111 


Megh Baraii Singh v. Rama Das . . 


89 956 


42 


Sevadasji Chandradasji v. Municipal 




113 


Kehri Singh v. Thirpal 


92 282 




Corporation for the City of Bom- 




111) 


Sahu Banarsi Prasad v. Kuer Man- 






bay 


94 654 




mohan Lai 


89 288 


43 


Chandulal Maganlal v. Motilal Hari- 




120 


Harakh Sonar v. Gopi Kishun 


89 134 




lal 


92 545 


122 


Ram Sarup v. Emperor 


92 426 


44 


Collector v. Ramchandra Haris- 




122 


Browne v. Pearce 


89 882 




chandra 


91 300 


124 


Narain Das v. Ram Chander 


90 116 


46 


Emperor v. Chand Mahaboob 


9 1 699 


126 


Mahadeo Prasad v. Harbans Singh .. 


89 179 


47 


N. H. Moos v. Government of Bom- 




127 


Abdullah v. Bad r-ul-Islam 


91 934 




bay 


91 357 


128 


Darshan Das v. Bikramajit Rai ... 


89 953 


49 


Gangaram Hari Teli v. Ganesh 




130 


Channu Dutta Vyas v. Svvami Gyan- 






Pandurang Ghanekar 


91 318 




nandji Maharaj 


9O 976 


50 


Haji Rehemtulla v. Secretary of 




131 


Muhammad Yusuf Khan v. Mahadeo 






State 


92 351 




Prasad 


89 131 


51 


Usuf Dadabhai v. Chand Mahomed 


9 1 299 


136 


Bishnath Singh v. Basdeo Singh ... 


88 484 


52 


Giriappa Subanna v. Govindrao Gan- 




136 


Beti Bai v. Tantya Singh 


89 574 




rao 


91 314 


140 


Bir v. Gajadhar 


89 19 


54 


Vishveshwar Subrao Kulkarni v. 




141 


Kashi Prasad v. Emperor 


92 588 




Sadashiv Venkatramanayya Harite 


93 930 


142 


Shiam Lai v. Jotia 


89 383 


55 


Ramchandra Trimbak v. Dattu 




142 


Ahmad Husain Khan v. Hardial ... 


9O 243 




Rama Patil 


91 347 


143 


Amir Ahmad T. Emperor 


91 47 


57 


B. N. Gamadia v. Emperor . . 


91 949 


144 


Muhammad Rahim v. Emperor 


89 1025 


62 


Emperor v. Subrao Seslmrao 


91 543 


145 


Kashi Prasad v. Mathura Prasad .. 


89 286 


63 


Derji Padamsey v. Thommadra 




14C 


Gulab Dei v. G. I. P. Railway 


9O 99 




Erikalappa 


92 555 


147 


Emperor v. Parana Sukh 


91 43 


64 


Emperor v. Piru Rama Havaldar .. 


91 689 


152 


Shabhar Hussain v. Abbas AH 


9O 324 








153 


Ohunni v. Baldeo Singh 


89 8!) 








155 


Reoti Ram v. Laehman Prasad 


89 402 




Calcutta High Court. 




156 


KedarNath Y. BismillahBegarn 


90 72 








157 


Ghurahu Das v. Shakalraj Das 


91 59 








157 


Faqir Chand v. Sant Lai 


89 291 


1 


Pryag Kumari Debi v. Siva Prosad 




158 


Jagat Narain Lai v. Hawaldar 


9O 287 




Singh 


93 385 


159 


Harihar Dat v. Maksud Ali 


91 38 


56 


Shuncii Bibi v. Mobarak Ali .-. 


87 94 


160 


Debi Din v. Emperor 


91 959 


57 


Nandalal Rai v. Mukundalal De ... 


89 24 


161 


Muhammad Abdul HatnidKhanv. 




59 


DwijendraNath v. Gopiram Govind- 






Uda 


90 996 




ram 


89 200 


161 


H.bibButhv. Samuel Fitz & Co. 




65 


Sarat Kaniini Dasi T. Nagendra 






Ltd. 


89 22 




Nath Pal 


89 1000 


164 


Babu Rani v. Ram Sarup 


89 410 


73 


Rakhal Chand ra Bardhan v. Prosad 




165 


Jairaj Singh v. Bansi 


91 67 




Chandra Chatterjec 


9O 229 


166 


Roshan Lai v. Maharaj Prasad 


89 344 


80 


Rajendra Nath Datta v. Bhabini 




167 


Emperor v. Bhima 


91 53 




Dasi 


87 811 


168 


Miran v. Emperor . . 


92 224 


82 


Husena Banco v. Brojendra Kishore 












Roy 


89 373 




Bombay High Court. 




83 


Kara Mohan Saha v. Sudhanshu 












Bhusan Pal 


851002 


1 


India Spinning and Weaving Co. 




85 


Ram Sundar Das v. Satindra Mohan 






Ltd. T. Climax Industrial Syndi- 






Tagore 


89 190 




cate 


91 347 


86 


Tara Prasanna Sinha v. Jnanendra 




13 


Kishenprasad & Co. Ltd. v. Rajaram 






Narayan 


88 1039 




Ramharakh 


94 570 


87 


Nalini Ranjan Sen Gupta r. Corpo- 




18 


Parashuram D. Shamdasani v. Tata 






ration of Calcutta 


89 781 




Industrial Bank 


91 153 


89 


Emperor v. Mohit Kumar Mukcrjec 


91 993 


21 


Rupchand v. Jankibai 


91 817 


92 


Durga Ram Das v. ttharat Ram Das 


85 739 


26 


lianmavva v. A r enkappa 


91 305 


95 


Niranka Sashi Roy v. Swarganath 




28 


Pudumjee & Co, v. Moos 


91 334 




Banerjee 


9O 121 


21 


Mayashankar v. Burjorji 


91 978 


97 


Jotindra Nath Roy v. Narayan Das 




33 


Dodbasappa Dharmappa v. Pradhan- 






Khetry 


9O 901 




appa Venkappa 


91 426 


100 


Adam Sajan & Co. v. Asutosh Bando- 




39 


Gulabchand Ramsukh v. Ramsukh 






padhya 


86 1046 




Rampratap 


91 294 


102 


Rash Behary Karury v. Corporation 












of Calcutta 


87, 970 



Vol 9^1 CONSOLIDATED COMPARATIVE TABLES. 

ALL INDIA REPORTER, FOE JANUARY-FEBRUARY, 1926 contd. 





Lahore High Court. 






Madras High Court contd. 




1 


Habib, In the matter of 


89 833 


31 


Muhammad Sahib v. Alagappa 




4 


Hari Singh v. Emperor 


92 217 




Ohettiar 


90 1042 


6 


Buta Singh v. Jagu 


89 884 


33 


Muthukuruppa v. Sivabhagyath- 




7 


Dhanpat Rai v. Qopal Kuar 


9O 1052 




amnial 


9O 880 


9 


Kisheii Chand v. Nank Chand 


89 973 


35 


Raimiswami Chettiar v. Lodd Go- 




10 


Natha Singh v. Sundar Singh 


92 258 




vindass 


91 612 


11 


Kanshi Ram r. Prem Singh 


89 879 


57 


Samu Asari v. Anachi Animal 


91 561 


12 


Allah Wasai v. Emperor 


89 457 


39 Muhammad Batcha Sahib T. Aruna- 




13 


Ismail v. Ibrahim 


89 995 




chalain Chettiar 


9O 875 


14 


Hussain Bakhsh v. Sarbuland 


92 268 


42 


Ranganatha Aiyar v. Srinivasa 




16 


Nur Hussain Shah v, Hussain Bibi 


89 429 




Aiyengar 


90 1037 


19 


Haq Dad v. Crown 


9O 927 


46 


Deiyac'hila Aiyangar v. Venkata- 




20 


Eclipse Motor Car Co. v. Mr. H. O. 






chariar 


88 967 




War burton 


89 721 


50 


Periamurugappa Asari v. Manicka 




21 


Devi Chand v. Jai Chand 


9O 1047 




Chetty 


87 213 


23 


Pars Ram v. Tehu -, 


89 960 


51 


Salakshi Animal v. Doraimanikka 




24 


Firm Jai Singh Diyal Singh v. 






Nad;in 


9O 829 




Narmal Das 


92 235 


54 


Kambhotlu v. AshreiT Husaiu . . 


89 945 


25 


Daulat Bam v. Ghulam Fatima 


89 953 


55 


Venkatacharyulu v. Venkatasubba 




26 


Gopi Chand v. Kirpa Ram 


9O 1030 




Rao 


9O 725 


27 


Hari Kishen v. Mulkh Raj 


89 857 


57 


Madura Dovasthanam v. Sundaram 




28 


Ismail v. Crown 


91 70 




Anna vi 


91 525 


30 


Mohammad Akram v. Mula Singh . . 


89 414 


59 


E. C. Kent v. E. E. L. Kent 


9O 669 


31 


Ram Rukni v. Daulat Ram 


9O 1056 


62 


Ayyanna v. Pulavarti Veerabhad- 




31 


Samail v. Haji . . 


89 378 




rain 


91 771 


32 


Budhu Ram v. Kalu Rain 


91 30 


64 


Durga Bai Animal v Ramanatha 




33 


Feroze Din v. Ghulam Fatima 


89 434 




Rao 


9 1 566 


34 


Begam Bibi v, Bulaqi Shah . . 


9O 1050 


65 


Subramaniu Aiyar v. Shanmugam 




.35 


Iliirbli.'iuu.m v, Taja ., 


89 590 




Chettiar . . 


92 566 


37 


(iirdiiia Mul v- Muhammad Khan 


9O 41 


66 


Guntur Nanisimham v. Nyapati 




39 


Padmun v. Achliar 


89 792 




Narayan Rao Garu 


92 405 


40 


Firm of Hira Singh Pritam Singh 




72 


Sankaralinga Mudaliar v. Official 






v. Secretary of State 


9O 1054 




Receiver of Tinnevelly 


92 504 


41 


Khem Chand v. Narain Das Sethi ... 


89 1022 


78 


Chinna Vavanan v. Chetkiappa Chetti 


91 10 


43 


Kesho Das v. Tulsi Dass 


89 229 


81 


Veiiku Shettithi v. Ramachand- 




45 


Suhan Singh v. Emperor 


89 513 




rayya 


92 342 


47 


Firm Bhogi Lai v. Amar Natli . . 


9O1012 


84 


Ayiswaryanandaji Saheb v. Sivaji 




47 


Mainrez v. Emperor 


89 390 




Raja Saheb 


92 928 


48 


Mohar Singh v. Emperor 


88 4 50 


96 


Lakshmi Animal, In re 


91 729 


49 


Dliawa v. Emperor . . 


89 961 


101 


Krisknaswami Bhagapathar v. 




50 


Sawaii Singh v. Emperor . 


89 705 




Thirumalai Iyer 


9O 410 


51 


Muhammad Sadiq v. Emperor 


89 458 


109 


Pachaiyappa Chetti v. Sivakami 




52 


Ahmad Gul v. Rahim Khan 


89 831 




Animal 


91 671 


54 


Mohammad v. Emperor 


89 252 


112 


Naruyanasami Pillai v. Gopala- 




' 6 P 


Hazara Singh v. Knvperor 


9O 153 




krishna Naidu 


92 483 


A 


Babo v. Emperor 


89 1027 


113 


Viiihilintfji Mudalipir v. Chidam- 




62 


Ramsaran Dass v. Firm Ram Lai- 






baram Pillai 


91 720 




Ram Labhaya 


89 479 


114 


Mahadeva Iyer r. Ramakrishna Red- 




62 


Sundar Singh v. Bhau Singh 


90 1032 




diar 


92 653 


63 


Said Nur v. Emperor 


89 718 


117 


Pasumarti Scothanna v. Thammandra 












Yasikalappa . . 


91 765 




Madras High Court. 




118 


Narasiinha Mudali v. Narayanasami 












Chetty 


92 333 


1 


Visvanatha Mudali T. Doraiswami 




119 


Sriuirasa Rao v. Kanaparthi Ven- 






Mudali 


91 193 




katanarasainma 


91 727 


6 Valluru Appalasuri v. Sasapu 




120 


Govindaawami Pillai v. Doraiswami 




! Kannamma Nayuralu 


9O 881 




Mudali 


91 181 


12 


Vuppulury Somasundaruui r. 




122 


Prathipati Suryanarayana v. Prathi- 






Bhimisetti Kondayya 


91 443 




pati Seshayya 


90 343 


18 


Veeraswami Mudali r. Vonkatachala 




123 


Kallukutt Parambath Pcrachaii v. 






Mudali 


92 20 




Putem Pcctikakkal Kuttiali ... 


91 144 


20 


Shuja-ul-mulk T. Umir-ul-umra 


91 597 


125 


Secretary of State v. Srceramamur- 




29 


Ramaswami Reddi v. Rajagopala- 






thi 


91 179 




chariar 


91 270 


126 


Khajamyan Rowther v. Appavu 












Pillai 


9O 642 

,',', , ... i ' 



INDIAN CASES. 
ALL INDIA REPORTER, FOR JANUARY-FEBRUARY, 1926 contd. 



[1926 



128 
128 

130 
132 

133 
133 
135 

135 
136 
138 
139 
140 
141 
143 
114 
146 
146 
148 
149 
150 
150 
152 
153 

154 
154 
155 
156 
157 

159 
liO 

161 
162 



Madras High Court contd. 

Radhakrishna Aiyar v. Vinayaka- 

swamiar 
Alapati Kamaswami v. Dusari Ven- 

katanarayana 

Sivan Pillai v. Venkatesvvara Ayyar 
Gopalakrishna Konar v. Vilanga 

Konar . . 

Muthu Veerappa Chettiar v Siva- 

gurunaiha Pillai 
Kommareddi Ramachandrayya v. 

Vodury Venkataratnam 
Kamaya BaiiL .. \tr.i \ Naickcr v. 

Vadamalai Tnvanatha Sundanidoss 

Theaver 
Hurugappa Chettiar v. L. K. S. 8. 

Firm 
Periakaruppa Thevan v. A. Kaniyol- 

aswamigal 
Karipinerii Rajayya v. Kalapatpu 

Annapurnamma 
Marudayya Thevar r. Shanmuga- 

sundara Thevar 
Trustee of the Vizianagaram Estate 

v. Paila Achanah 
Nagala Kotayya v. Koganti Kot- 

appa 
Marath Veetil Kalliani Amma v. 

Cochin Sircar 
Metta Kama Bhatlu v. Metta Annayy; 

Bhatlu 
Naiwalt Sulaiman Ali Khan v. 

Venkatanaryana Garu 
Munuswami Nayakar v. Abdul Azeea 

Sahib 
Tulasidass Govindjee v. Madhava-s 

das 
Maharajah of Jeypore v. Sobha Sun- 

dar Dalai 
Official Assignee of Madras T. 

Zamindar of Odayarpalayam 
Kunnath Packi r. Kunnath. Muham- 
mad 
Payida Ramakrishnayya v. Barrey 

Nagarazu 
Krishna Jute & Cotton Mills Co., 

Ltd. v. Municipal Council, Vizia- 

nagram 
Khazi Muhammad Khan, In rt 

Deraguptapu Narasimham v. Deva- 

guptapu Chendramma 
Chockalingam Pillai v. Pichappa 

Chettiar 
Nallakakhan Ambalam v. Kallalagai 

Devasthanam 
Vasireddi Sree Chandra Monies wara 

Prasad Bahadur v. Yadavalli 

Kameswara Somayajulu 
Kaman Mada v. Malli 
Muthia Chettiar v. Venkatasubbara- 

yulu Naidu 
Popakannu Errappa Reddi v. Ped- 

damuniswami Setti 
Arumuga Thambiran v. Namasivaya 

Pandara Sannadhi 



91 08 

92 330 
92 556 

90 819 
92 C03 
92 800 

92 415 

90 721 

91 1027 

92 308 
91 702 
91 280 

90 551 

91 310 

90 605 

91 166 

91 724 

92 570 
91 576 

90 1054 

91 638 
91 608 

91 297 

Not 
reportabl* 

92 321 
92 599 

91 319 

92 402 
91 202 

90 1033 

91 264 
91 109 



Madras High Court concld. 

164 Govindaswami Pillai v. Ramanathan 

Chettiar 
1C5 Ramaftwami Chettiar v. Ramanathan 

Chettiar 
166 Sriranga Narayana Jeer v. Ahobila 

Jeer : 

168 Vcerannan Ambalam v. Ayyachi 

Ambalam 
173 Venkataranga Aiyar v. Ramasamy 

Aiyar 
175. Gandha Korliah v. Janoo Hassan .. 

177 * Vemulamanda Bhadrayya v. Penu- 

metcha Jaggaraju 

178 Sirma Karuppan v. Muthiah Chet- 

tiar ; 

179 Subramanian Chetty v. Ramaswami 

Chetty 
181 Kuppusvvami Mudaliar v. Chocka- 

linga Mudaliar 
183 Suggusetty Subbayya v. Irngulapati 

Gangayya 

183 Pfiramasami Rayudu, In re 

184 Thutta Venkataswami v. Vissamsetti 

Kotilingam 

186 P<;oraiialiii^a/M Servai v. Voerayi ... 

187 Alaga Pillai v. Ramaswami The- 

van 

189 Chandayya Hegde v. Kaveri Heg- 

dathi 

190 Mahalinga Naicker v. Vcllaya Naic- 

ker a ... 

191 I Venkataratnamma v. Narasimha- 

charyulu 

Nagpur Judicial Commissioners 
Court. 

1 Sheosatyanarayanlal v. Emperor . . 

5 Nagarmal v. Abdul Rahman 

6 Jairarn v. Laxman 

9 Mahadeo T. Shioram 

10 Balwantrao v. Farid Sahib 

10 Onkar v. Dhanaingh 

15 Ganpati v. Salu 

17 Nizamuddin v Jam ma 

20 Mira Moti Ju Deo v. Janki 

21 Premsukhdae T. Peerkhan 
25 Nathu v. Sheosa 

29 Ratanlal v. Govinda 

31 Lalchand v. Narhar 

31 Bhau v. Syed Chand 

33 Jiajaram v. Ramchandra 

35 Gokulv. -'.. .:-V-' ,' 

37 Shankar- ' . . "^1 .'. '.' . 

40 Dattu v. Bhaooaingh 

44 Bulakichand v. Amiralli 

48 Jirabai v. Ramdularibai 

49 Choturam Bhikraj v. Narayan 

50 Anandrao v. President, Municipal 

Committee, Nagpur 

51 Mahamad Niyajuddin Khan 

Jethu 

52 Bisan Singh v. Fatechand 

53 Ramprasad v. Emperor 



91 714 

91 537 

91 631 

92 968 

93 670 
91 780 

91 1017 

92 373 
91 11 

91 454 

92 687 
91 532 

91 1051 

92 1055 

91 1024 

92 390 
92 412 
92 470 



91 945 

89 941 
91 971 

90 51 

89 216 

90 963 
89 345 

693 
926 



88 
89 

95 979 

89 636 

90 349 
89 896 
87 921 
89 944 



90 
89 
88 
87 
89 



76 

782 

235 

12 

991 



90 210 

89 929 

87 623 
89 829 

88 178 



.. ,92] CONSOLIDATED 

ALL INDIA REPORTER, FOR 



TABLES. 

r, 1926 contd. 





Nagpur Judicial Commissioner'* 
Court concld. 






f)udh Chief Court concld. 










49 


Hira Lai v. Maagal Dei 


88 511 


ft5 


Pfcttatraya v. Amr^t 


99 7? 


49 


Tawai&ul Kfcan v.jjld. Metdi Ali 




57 


Q'. I. P. Railway Co. T. Jtodjbi&kipaji 






Khan 


90 37$ 


60 


Jaikisari 
Tnmbik v. Sitaram Maharaj gJans- 


99 *# 


53 

53 


Bhagan v. Sukhdeo Singh 
Raza Husain Khan v. Subhani 


J69 660 
90 59$ 




'"'tjian ,. 


89 1016 


55 


Ghuttur Singh v. Phulang Singh . . 


90 119 


61 


Shiosahai Sonar v. Ramkrishna 


92 6& 


56 


Tirbha,wan Dutt Pande v. Ram 




62 


Govindrao v. Sarjabai 


89 872 




Piare 


88 65 


64 


Sarjabai ' v. Yadeosa 


dO 58 


57 


Emperor v. Md.Shafi 


9D 539 


65 


Udairam v. Thakur Prasad 


89 933 


59 


Sitapat Ram v. Mahabir Prasad . . 


87 438 


66 


Secretary and President Municipal 




59 


Bunyad Singh v. Naubut Singh ... 


90 &1? 


67 


Committee, Nagpur v. Devidas 
Bruel & Co. v. Kesheorao 


88 480 
89 446 


61 
P2 


Maharji v. Baghoman 
Baijnath v. Ramdas Sahu 


89 476 
90 321 


68 


Jtanhairam v . Kalicharan 


91 2J8 


03 


Suktipat Lai v. Emperor 


89 972 


71 


Ohunnilal v, Jtishandas Ram das .. 


89 407 


64 


Santu Chamar v. Arjun Misra 


88 542 


73 


Fakira Sambhaji Kunbi v. Emperor 


87 918 




Jnder Kuer v. Mohammad Taqi 


9O 505 


75 


Shanker Rao v. Raghunathrao ... 


89 331 


68 


Agent, Rohilkand-Kumon Railway 




75 


Dulichand v. Sonai 


90 239 




v. Gauri Lai 


9O 46 


77 


Janki Sethani v. Seth Laxmi Nar- 




68 


Har Pershad v. Sheoshanker 


9O 679 




ayan 


89 129 


69 


Kalka Singh v. Jagwant Kunwar ... 


89 722 


79 


Lai Chand v. Emperor 


89 974 


72 


Kalka Singh v Bishuaath Singh . . 


89 221 


79 


Chimashani v. Venkatrao 


02 841 


74 


Abdul Rahman Khan v. Noor Jahan 


ftCi "Vift 








75 


Amna Khatun v. Md. Wali 


88 481 




Oudh Chief Court. 




76 


Ahmad Hasan v. Kodi Lai 


90 351 








77 


Abhaidat Singh v. Ragho Indar 




^ 


Mohammad Jaimur Khan y. Ragbu- 






Partab Sahai 


91 976 




nath Singh 


91 1015 


79 


Baboo Lai v. Mirza Md. Askari 


89 57? 


2 


Achal Singh v. Shagunath Kuer ... 


SO 4(70 


80 


Gajadhar v. Aulad Husain 


9O 375 


12 


Rudra Partab Singh v. Suraj Kuer 


I 617 








13 


Sajjad Ali Khan T. Ja^i:. :.j.:iPi.j> 


9O 371 




Patna High Court. 




15 


Ambika Prasad r. Athar Ah 


89 182 








16 


Dwarka Das v. Agent E. I. Ry. Com- 




1 


Baijnath Rai v. Mangla Prasad 






pany 


94 672 




Narayan Sahi 


90 732 


17 


Jagan Nath Singh v. Jag Jewan 




5 


Pershad Tewari v. Emperor 


9O 661 




Das 


91 93 


9 


Tarnji Singh r. Satnarain Maharaj 


9O 895 


17 


Jagmohan Singh v. Sheo Manual 




14 


RamesJiwar Singh v. Durga 






Singh 


90 332 




Mandar 


90 454 


18 


Sajjad Husain v. Mul Chand 


90 951 


10 


Aghori Koeri v. Kishundeo. Narayan 




19 


Ram Hartikh v Salik Ram 


69 332 




Mahta 


86 397 


20 


Sitla Bux Singh v. Ram Newaz 


9O 741 


17 


Ramchandra Singh v. Jang Bahadur 




22 


AjLakhdum Thater v. Emperor 


87 595 




Singh -. 


9O 55$ 


29 


Ramcharan v. Sartaji 


9O 766 


20 


Badri Chaudhry v. Emperor 


92' 874 


34 


Jamna Pershad v. Ramlal 


9O 327 


23 


Lekhraj Mahton v. Jang Bahadur 




6 


Hasnu Khanv. Emperor 


89 241 




Singh 


89 822 


27 


Sheo Darshan v. Emperor 


9O 159 


25 


Faujdar Rai v. P'mperor 


9O 445 


.27. 


Sri Ram v. Suraj Bali 


88 507 


27 


Anant Potdar v. Mangal Potdar ... 


91 483 


28 


Maqbul Husain v. Estate of Ch. 




28 


Raj Kishore Lai v. Alam Ara Be- 






Shafiq-uz-zaman 


89 225 




gum 


9O 6? 


31 


Haidri Khanam v. Ahmad Ali 


9O 430 


29 


Ram Charan Singh v. Emperor ... 


89 153 


32 


Zuhara Begam v. Mashuq Fatima... 


88 175 


29 


Shamsher Narain Singh v. Moham- 




33 


Bhagwati Prashad v. Lall Bahadur 


90 404 




mad Sale 


9O 320 


34 


Chandra Pal Singh v. Bishan Singh 


87 1053 


31 


Hari Sankar Rai v. Tapaikuer 


88 923 


35 


Gobind Prasad v. Narbhir Singh ,., 


90 577 


""32 


Kishore Ahir v. Emperor 


88 864 


36 


Chutkan v. Emperor 


90 444 


33 


Baijulal Marwari v. Thakur Prasad 




37 


Hari Kishen Dass v. Maiku Lai ... 


87 959 




Mar war i 


9O 262 


38 


Narain Das v, Debi Din Singh 


90 566 


34 


Ram Saran Singh r. Mohammad 




39 


Swami Dayal v. Maqsood Husen . . 


88 141 




Jan Khan 


89 706 


40 


Thakurian v, T?ota Ram 


To be 


36 


Barhamdeo Rai v. Emperor 


9O 439 






printed. 


37 


Jagdip Singh v. Harku Singh 


89 863 


tt 


La%hhm*aD*Vv tfhagiratb 


9O 487 


40 


Radhe Lai v. East Indian Railway ... 


9O 680 


43 


Harkiaiban D^vu Sundro Bibi 


89 424 


42 


Bibi Wajibunnissa Begum v. Babu 




44 


Secretary of State for India v. 






Lai Mahton 


SO 871 




Bishan Narain Bhargava 


90 524 


47 


Rameswar Narayan Singh v. Mahabir 




45 


Sker Khan v. Misri Lai 


89 107 




Prasad 


90 325 


46 


Ram Prasad v. Paul Brothers 


9O 381 


49 


Ganesh Lall v. Biseear Pacdey . . 


88 820 



XVI 



INDIAN CASES. 
ALL INDIA REPORTER, FOR JANUARY- FEBRUARY, 1926 concld. 



[1926 



53 
54 

r.5 

f>7 

58 
61 
2 
61 
7 
8 
70 
71 

73 
76 
77 

80 



1 
2 
3 

4 

7 

9 
10 

IS 
14 

17 



Patna High Co urt concld. 

Harbans Narain Singh v. Mohammad 

Sayeed 

Gokul TatAva v. Emperor 
Keshub Prasad Singh v. Harihar 

Prasad Singh 
Asharfi Dhimar v. Muhammad Din- 

dalal 

Harnandan Das v. Atul Kumar Pra- 
sad . . 
Emperor v. Phagunia Bhuian 
Chakauri Lai v. Deo Clwud Mahton 
Bibi Hajo v. Mar Sahay Lai 
Gobinda Bruin v. Kiisto Sardar 
Nandau Singh v. Siaram Singh . . 
Debi Daynl Singh v Oango Kuer .., 
Sobhit Mallah v Krnperor 
Sadhu Sao v. A\vadh Bihar Saran 

Singh 

Lanrentius Ekka v. Dukhi ICoeri ... 
Sheo Dani Kuer v. Ramji Upadhya 
Nathan Praead Shah v Kali Prasad 

Shah 
Prasanna Kumar Banerji v. Kalyan 

CharanMandal 

Rangoon High Court. 

Ma Than r. Mg. Ba Gyaw 

Maung Po Toke v. Maung Po Qyi 

Rainey v. Burma Fire & Marine In- 
surance Co , Ltd. 

Maung Shwe Ye v. Maung Po Mya . . 

Maung Kyi Oh v. Maung Kyaw 
Zan 

Kalenther Ammal T. Ma Mi 

Ma Sein Bye T. S. R. M. M. R. M. 
Chetty Firm 

Emperor r. Mg, San Nyein , . 

China and Southern Bank, Ltd. T. 
Te Thoe beng 

Halima Bee Bee r. Khairunnissa 
Bee Bee 



9O 293 

89 1030 

99 703 

88 OSO 

90 158 
891013 
9O 27S 

89 902 

90 489 
89 151 

89 1020 

90 ICO 

89 802 
92 179 

90 757 

90 785 
90 352 



93 124 

92 112 

91 623 

91 684 

93 110 

92 125 

91 663 

93 79 

92 ^ 

91 644 



J 



19 
23 
25 

31 



9 
15 

17 

18 

19 
20 

22 
26 

27 
31 
34 
35 
37 
40 

42 

48 



Rangoon High Court concld. 

Ma Pan v. Maung Ne U ' 

Maung Po San v. Maung Po Thet . . . 

Municipal Corporation of Rangoon 

v. M. A. Shakur 
Punushwami v. Veeramuthu 

Find Judicial Commissioner's 
Court. 

Emptror v. Nabu 

Jiviaj Lakhamal v. Dinanth & Co. . . 
Doomal v. Khrmoomal Jothmal 
K haras v. Bawanji Narsi 
Himalaya Assurance Co. Ltd. v. 

. Assudam al Harbhagwan Das 
Japan Trading Co., Ltd. v. Secretary 

of State 
Pevandbai v. Thaoomal Panjoo- 

mal 

Pursu v. Emperor 
Moolchand Kishindas v. Thakuribai 

Assanmal Chatumal v. Dilbar 
Tulsidas Keshowdaa v. Ramzan 

Abdulla 

Naraindas v. Khatamnal 
Khimanmal Tejumal v. Lalchand 

Ghanomal 
Mulchand Sobhraj v. Radhakishin 

Parumal 

Official Receiver v. Naraindas- Lota- 
ram 
Chptumal Bulchand v. Lilaram Lak- 

hmichand 
Khuahiram Tejbhandas v. Jhali- 

bai 
Jan Muhomed v. Ghulain Rasul 

Khan 
Firm of Madhowji Thawor v. Yar 

Hussain Hydar Dasti 
Devibai v. Dayabhoy Moiilal 
Emperor v. Dodo 



91 63d 

91 653 

91 550 

91 67<J 



90 434 
93 214 
89 335 
92 394 

88 878 

91 145 

88 741 

89 259 

To be 
pointed. 
89 159 

89 238 
83 916 

89 609 

90 932 
9 493 
9O 64 
89 342 
89 10* 

88 S80 

89 164 
89 451 



Alphabetical List of Cases reported in Volume 92 of Indian Cases with 
references to the Volumes and Pages of other Law Journals and Reports. 

An asterisk (*) denotes case* not reported yet elsewhere. 



Names of coses reported. 



Abdul Bari Mnlliek v. Emperor 
Abdul Hafiz Khan v. Emperor 

Abdul Majid v. Wahiduliah . . 

Abdul Qadir v. JOmperor 
Abdul Qadir v. JJahi Baklisli 
Abdul Qadir v. Jlalri Bakhsh 

Abdul Rahtman Sahib & Co. v. Shaw Wallace & Co. 
Abdul Wahed Khan v. Tamijannessa Bibi 
Abdullah v. Emperor 
Adam Sirdar v. Bisweswar Da-* 
Addopalli Kondayya v. Vandru Veeranna 
Addepalli Venkata Garunandha v. Akella Kesnva 
Ramiah 

Ah Khauug v. Emperor 

Ahmad Baig v, Model Mill Nagpur, Ltd. . , 

Ahmun Zaida v. Gurdas Ram 

Aishau v. Municipal Committee, Lahore 

A jo Mian v. Emperor 

Akabaiv. Narayan 
Akbar Ali v. Emperor 



Akella Rainasomayyagulu 
Godavari 



v. Official Receiver, 



Alagirisami Pillai v. Laksmianan Chetty 
Aiampath Krishnan V. Municipal Prosecutor, Cunna- 
nore 

Alapati Ramaswanu v. Dasari Venkataranayana 
Alella Kesavaramayya v. Yisamsetti Venkatanara- 
. simha 

Alice Georgina Skinner v. Mukarram Ali Khan 
Allahabad Bank Ld. y. Bhagwan Das Johari 
Allah Bakhsh v. Municipal Committee, Rohtak 
Amiruddin v, Emperor 

Anandrao y, paulat 

Appajee Pillai v. Manika Mudali 

Arshed Ali v. Emperor 

Arshad Ali v. Zorawar Singh 

Arunchellam Chettiar v, U. Po Lu ... 

Asa Nand v. Mahmud 

Asanalli Nagoor v. Mahadu Meera . . 

Aswap Ali Bepari-v. Duia Mia 

Ata Husain v. Mustafa Husain 

Atma Ram v. Nanak Chand 

Attar Singh v. Kirpa Singh 

Ayiawaryanandaji Saheb v. Siwaji Raja Saheb 



Where reported. 



42 0. L. J. 585; A. I. R. 1026 Cal 157; 27 Cr. 

L. J.375; 30 O. W. 644 
L. R. G A. 203 Cr.; 24 A. L. J. 173; 27 Cr. L. J. 

265; A.I. R. 1926 All. 168 
A. I.R. 1926 All. 284 
27 Cr. L.J. 211 
A.I R. 1926 Lah. 251 
"Lahore High Court 

21 L. W. 516; A. I. R. 1925 Mad. 736 
A. I.R. 1926 Cal. 679 

A. I.R. 1924 All 233; 27 Cr. L. J. 193 
A.I. R. 1026 Cal. G81 
A. I. R. 1926 Mad. 543 

50 M. L. J. 51; 23 L. W. 314, (1926; M W. X. 

149; A.I. R 1926 IV{ad. 417 
4 Bur. L. J. 143; A. I. It. 192,5 Rang 363; 27 

Cr. L.J. 336 " 

A. L R. 1926 Nag. 262 
A. I. R. 1026 Lah. 225 
"Lahore High Court 

6 P. L. T 626; A. I. R, 1925 Pat. 696; 27 Cr. 
L.J. 353 

A.I. R. 1926 Nag. 251 

7 L. L. J. 520; A, I. R. 1925 Lah. 614; 27 Cr 
L. J 229 

23 L. W. 80; (1926; M. W N. 169; A. I. R. 1926* 

Mad. 360 
50 M. L. J. 79; A. I. R. 1926 Mad. 371 

23 L. W. 413; 27 Cr. L J. 361; A. L R. V 1926 
Mad. 430 

(1925) M. W. N. 781; A. I. R. 1926 Mad. 128 ... 

(1936) M. W. N. 141; 50 M. L. J. 36; 23 L. W. 

678; A. I. R. 1926 Mud. 452 
L. R. 5 A. 607 Civ.; A. I. R. 1925 All. 77 

24 A. L. J. 323; A. I. R. 1926 All. 262 
A. I. R. 1926 Lah. 223 

40 0. L. J, 306; A. I. R. 1925 Cal. 217; 27 Cr 
L.J. 232 

22 N, L. R. 37; A. I. R. 1926 Nag. 274 
21L.W.652 

30 0. W N. 166; 27 Cr. L. J. 378 

8L. L. J. 60 

4 Bur. L. J, 01; A. L R. 1925 Rang. 2G6; 3 R 

318 

7 L. L.J 542 

22 L, W. 820; A, I. R. 1926 Mad. 259 
A. I. R. 1926 Cal, 580 
*Allahabad High Court 
A. I. R. 1926 All 274 
A. I. R. 1926 Lah. 175 
A. I. R. 1926 Mad. 84; 49 M. L J. 568; 49 M. 

116 



Page. 



887 

441 

496 
1G3 
761) 
791 
620 
905 
145 
601 
672 



973 

752 

23 

630 

526 

863 
36 

213 



249 
1021 



873 
330 



626 
330 
309 



216 

909 

30 



241 
491 
843 
54ti 
571 
297 

028 



INttfAfr OASES. 



[1926 



Ayyaru Pillai v. Varadarnja Pillai 
Babu v. Emperor 

Bachan v. Raghuuath . . 

Badri Choudhry v. Emperor 
Badri 8ahu v. Pearc Lai Misra 

Dago v. Roshan Beg 
Bahadura v. Kmpcror 

Baijnatli Singh v. Hari Prasad Bal 

Buikuntha Nath-De v. Shaik Hari 

Baikuntha Nath Knr v. Adhar Chandra Pain 

Bajirao v. Dadibai 

Bajrang Bali y. Mahrajia 

Balaram Manjhj v. Jagaimath Man j hi 

Baldeo Kurmi v. Kanhi Chamnr 

Baldeo Singh v. Gi.lab 

iialsiiet Mahadshet Yckawdc v. Hari Baburao Rane. . 

Bangflhi Badan llaldar v. Katan 

Banjoisi Narasamma v. Banjoisi Sarasamman 

Bantu v. Lehnu Das 
Ban war! Lai v Jhimka 

Bonu Mai v. Paras Ram *. 

Barati v. Surit 

Bar$Rtv. Kolu Mai 

Barkat Bibi v. Abdul Aziz 

liarkoo v. Atmaram 

Basant Rai Bhandari v. Salik Ram . . 

Bashir Ahmad v. Zobaida Khatun 

Basliirulla Bhuiya v. Meajan 

B,atisa K.uer .v. Raja Ram Pandey . 

Batuk Natli v. Jugal Kishore 
B. N. Ry. Co. v. Makbul 

Bengal North- Western Ry. v, Bansi Dhar 
Beivi Ram v. Kmpcror 
Kha^gat Singh v. Mathra 
Bhagirathi v. Kmperor 

Bhagwandas- Paras Ram v. Jado Nath . 

Bhagwati Dayal v. Dhan Kunwar 
Bliagwati Singh y. Gurcharan Dnbe 
Bhatu Ram Modi v. Fogal Ram 

Bhola v. Emperor 

Bhunjanga Rao v: Periyathambi Goundan 
Bhupendra Narayan Singh Bahadur v. Madar Bakhsh 
Sheikh ; 

Bibi KhodaijatuT Kabra v. Harihar Missir 

Bishen Singh v. Wasawa Singh ... 

Bohisetti Mamayya v. Official Receiver, Guntur 

Bombay Baroda & Central India Ry. v. Gulabbhai 

Bhagwandas 
Bulli Malv. Jhabba 

Buta v. Ghul am Muhammad r- , .. 

Cecil Cole v. Nanalal Moraji Dave 

Cha_mari Singh v, Public Prosecutor, Gaya 



50 M. L. J. 116; A. I. R. 1926 Mad. 431 . I 770 
24 A. L. J. 280; 27 Cr. L. J. 313; A, 1. R. 

1926 All. 276 697 
24 A. L. J. 149; 48 A. 221, A. 1 R. 1926 All. 

304 ... 264 
6 P. L. T. 620, A. 1. K. 11)26 Pat. 20; 27 Cr. L. 

J. 362 874 

6 P. L. T. 839; A. 1. R. 1926 Pat. 140; (1926) 

Pat. 137 ... 350 

* Lahore High Court 484 
24 A. L. J. 215; 27 Cr. L. J. 284; A. I. R. 

1926 All. 301 ... 460 
A. I. R. 1924 Pat. 628; (192J) Tat. 209; 7 P. L. 

T. 353 .. 326 

A. I. R. 1926 Cal. 592 ... 6J)9 

A. I. R, 1926 Cal. 653 .. 727 

27 Cr. L. J. 212; A. I. R. 1926 Nag. 280 ... 161 

*0udh Chief Court ... 32 

A. 1 R. 1925 Pat. 760 . . 684 

i 24 A. L. J. 337; A 1. R. 192 All. 312 .. 095 

| *0udh Chief Court .. 237 

I 27 Bom. L. R. 1487; A. J. R. 1926 Bom. 119 . . 542 

i *Calcutta High Court . . 961 

i 23 L. W. 157; (1926) M. W. N. 163; A. L R. 

1926 Mad. 53 . . 61 

"Lahore High Court . 723 
27 Cr. L. J.278; 21 A. L. J. 217; A.I R. 1926 

All. 229 ... 454 

7 L. L J. 337; A 1 R. 1923 Lah 010 .. 254 
A. 1 R. 1926 Nag. 277 .. | 916 
7 L. L. J 509; A. J R. 1925 Lah. 627 .. 178 

2 L. O. 186 . . , ..46 
*Nagpur Judicial Commissioner's Court ... 818 
A. I. R. 1926 Oudh 288 ... 519 

3 O. W. N. 10;>; A. I.It. 1923 Oudh 166 *65 
A. I. R. 10^6 Cal. 690 ... 593 
(1925) Pat. 343; A. I. R. 1926 Pat. 192; 7 P. L. 

T 393 177 

i 24 A L, J. 281; A. I. R. 1926 All. 285 '.'.'. 551 
A. I. R. 1925 Pat. 755; (1926; Pat. 74; 27 Cr. L. 

J. 313; 7 P. L. T. 343 . . 697 

3 O. W. N. 145; A. I. R. 1926 Oudh 218 .. 603 
27 Cr. L. J. 310; A. I. R. 1926 All 237 . . j 694 
"Lahore High Court - ... 982 
30 C. W. N. 142; 27 Cr. L. J. 222; A, I. R. 1926 

Cal. 550 .. 174 

A. I. R. 1926 Lah. 236 . . 898 

I 24 A. L. J. 331; A. I. R. 1926 All. 311 . .. 1027 

1 L. R 5 A. 647 Civ.; A. I. R. 1925 All. 96 ... 332 

' (1925) Pat. 357; 5 Pat. 223; A. I. R. 1926 Pat. 

141; 7P.L. T. 340 ... 629' 

27 Cr. L. J. 275 ... 451 

Madras High Court ... 1047 

A. I. R. 1925 P. C. 297; 23 L. W. 9; 52 I. A. 

439; 53 C. 1 P.O. ... 681 

4 Pat. C88; 7 P. L. T. 333; A. I. R. 1926 Pat. I 

209 . . 900 

A.I. R. 1926 Lah. 177 ... 317 
23 L. W. 10; (1926) M. W. N, 124; A. I. R. 1926 

Mad. 338 ... 720 

A. I. R. 1926 All. 296 ... 532 

A. I. R. 1925 Lah. 504; 7 L. L. J. 280 ... 569 

A.I. R. 1926 Lah. 247 ... 725 
26 Bom. L. R 8*0; A. I. R. 1925 Bom, 18; 49 

B. 172 . ^ 101 
4 Pat. 484; A. I. R. 1925 Pat. 677; 27 Or. L. 

J. 371; 7 P. L. T, 372 .. 883 



. 921 



INDIAN CASE& 



Champa Devi v. Pirbhu Lai 

Chan Klliam v. Neo Thcin Theoug 
Ohandtiyya Hegdo v. Kavcri Hegadthi 
Ohandirum v. Emperor 
Chandoo v. Muriidhar 
Chandra Kumar Guha v, Elahi Buksha 
Chandra Mouleswara Prasada v. Vadavalli Kames- 
wara 

Cii'Liidni 1 !.;. i Bui v. Bakaram 
Cliandrabhan Prakaslmnth v. E T. liy. Co. 
Chandrika Prasad v. Nazir Husain 
Oliaudulnl Maganlal v. Motiial iianlal 
Chst Ham v. llaioho 
Clihidda v. Emperor 

Chimashani v. Veukalrao 

China v. To Thoe Seng 

ChintLilapati Butchi Seela^ya Cam v, Gollavilli 

Appadu 

Chiragh I>m v. Emperor 
Ciiiraiiji Lai v. Shib Lai 
Citittammal v Poimusami Nairkpr 

Chockalingani Pillai v. 1'idiappa ChHliar 
Chunilal Mokamdas Marwadi v. Christopher 

Commissioner of Income Tax v. Luoknow Ice Asso- 
ciation 

Commissioner of Income-Tax, Bombay v, M. H. Sanjana 
'& Co. 

Commissioner of Income Tax,, Madu-a v, Meesiu King 
& Partrige ~. 

D. R. K. Saklat v. Bella 



Darbari Mai-Ram Sahai v. Secretary of State 
Dawlat v. Kashirao 
Daya Ram v. Emperor 

Deo Kali v. Ranchoor Bux 

Devji Padamsey v. Thommadra Erikalappa 

Dhana Mohammad v. Nastulia Molla .. 

Dlianpat Rai v. Kahan Singh 

Dkanrajgirji Narasinggirji v. Tata Sons Ltd, 

Digambar, In re 

Din Mohammad v. Matab Bibi 

Dittu Ram v. Nawab 

Diwaii Chand v. Emperor 

Doras wami Nadar v. Joseph L. Mother 

Dost Muhammad v, Kadar Batcha 

Duma Tom a Rumav v. Nathu Farsha Kurel . . 

Durga Bai, hi the matter of 

Durga Prosad Lahiri Choudhuri v. Raton Mahommed 

Sarkar 

Dwarka v. Emperor 

East Indian Railway v. Firm Baldeo Gutain 
Kmperor v. Daulat Singh 
, Vt Ghulam Mohammad 

v. Gulab 

v. Kesar 



27 Cr. L. J. 253; 24 A. L. J. 3i>9; A. T. R, 1926 

AIL 287 

A. 1 R. 192"> Hang. 361; 1 Bur. L J. 13S 
19 M. L. J. 727; A. I. R. 1'JiG Mad. 180 
27 Cr. L. J. 2sr> 

13 O L. J. 13*, A T. R. 1926 Oudh 311 
A. I. H. 1926 Cal. C67 

(1925) M. VV.N. 776; 22 L W. 833; 50 M. L. J. 

97; A. 1. R. 1926 Mad. 157 
A. 1 R. 1926 Nag. 276 
21 A. L. J 305, A. I. R. 1926 All. 200 
A. I. R. 1926 Oudh 303 

27 Born. L. R. 1192; A. 1. R. 1926 Bom. 43 .. 
2L. 0.178 

21 A L J. 178; 27 Cr. L. J. 287, A. I. R. 1926 
All. 225 

8 N L. J. 135; A. I. R. 1923 Nag. 79 
3 R. 477; A. I. R. 19?6 Rang. 14 

A. I. R. 1926 Mad. 526 
7 L L. J. 621, 27 Cr. L. J. 330 
A. I. R. 1926 Lah. 242 

23 L. W. 94; (1926; M W. X. 121 & 172; 50 M. 
L. J 180; A I R 1926 Mill 303 

22 L W. 579, (IILM; M. W. N. bUL'; A. 1. H. 
1926 Mad 155 

27 Bom. L. R. 1162; A. I. R. 1026 Bom. 65, 50 
13.107 

A. I. R. 1026 Oudh 191 

27 Bom. L. R, 1471; A, I. R. 1926 Bom. 129; 50 



50 M. L. J. 176; 49 M. 296; A, I, R. 1926 Mad. 

338 - 

23A.L.J. 1016; A. L R. 1925 P. 0.298; 49 

M. L. J. 821; 13 C L. J. 23, 30 C. W. N. 269; 

28 Bom. L. R. 168; 3 R. 582 P. C. ... 
6L 499; A. I. R, 1926 Lah, 116 .. 
A.I. R. 1926 Nag. 280 

6 L. 489; 27 Cr. L. J. 217; A. I. R. 1926 Lah. 
83 

A. I R. 1926 Oudh 253; 13 0. L. J. 208 . . 
27 Bom L R 1494; A.I. R. 1926 Bom. 63 ... 
A. J R lOJGCal C37 ... 

2 L. C 107 ..- 

26 Bom L. R. 858; A. I. R. 1921 Bom. 473; 49 
B.I .- 

A. I. R. 1926 Nag. 306 ... 

A.I. R. 1926 Lah. 203 .. 

7 L L. J. 448; A I. R. 1925 Lah. 639 ... 

27 Cr L. J. 333; A. I. R. 1926 Lah. 227 ... 
A. I. R 1926 Mad. 319 ... 

23 L W 240; A. I. R. 1923 Mad. 466 ... 
27 Horn. L. R. 249; A. I. R. 1925 Bom. 431 . . 

24 A L. J. 310; A. I. R. 1926 AIL 301 . . 

"Calcutta High Court ... 

27 fV. L J. 3 '3 ... 

Allahabad High Court 

24 A. L. J. 224; 27 Cr. L. J. 327 ... 
A I. R. 1925 Lah. 510; 7 L. L, J. 331; 27 Cr. 

L. J. 302 ... 

27 Cr. L.J. 300 ... 

27 Cr. L. J. 303; 24 A*L. J. 228; A. I, R, 1926 

All. 226 .. 



429 
7fr'G 

390 
402 
732 
616 



402 
"35 
022 
G81 



463 
841 
233 

814 
7J6 
991 

573 

599 
068 



517 
943 



200 
3:.2 



10 
5c5 

948 
479 



272 

749 

119 

950 

16 



855 

U-07 

743 

590 

588 



N CASfeB. 



Emperor v. Manant K. Mehta 

v. Mathro 

v. Maung Than Gyaung 

v. Nga Tun Maung 

v. Tej Ram 

Fnt^h Mahommcd v. Mitha 
Fntchchand v. Parbati Bai 
Fazlar Rahman v. Abdul Samad 
Firm Bihari Lal-Jai Narain v. Har Narain Das 
Firm Budhu Mai-Parma Nand v. Gokal Chand 
Firm Jai ^' ." l v -.' <' ^- \ V rmal Das 
Firm of]: I*. H r \ : v. Ghulam Mahbub 

Khan 



Firm of Ram Prosad-Ram Kissen v. Haro Kumar 



Chin- 



Ful ihand Mohanlal v. Harilal Nansa 

(jaja la \ Kara} an Patkar v. Jivangiri Chamelgiri 
< janga H -.! ':-:: S! :^1: v. Mania Bux iSingh 
Oangal 1 s . !'' N .::; v. B. B. & C. 1. Hy. 
(jlanpat Rai v. Kani Ram-Muuna Lai 
Gaur.i Telin v. Shriram Bhoyer 
Gam i Shankar v. Bhairon Pershad 
Gauri Shankar v. Decruzo 
Ghissu v. Amir Ali Khan 
Gobind Lai Dutt v. Official Assignee, Calcutta 
Gokul Das v. Nathu 

Gonnabathula Thammayya v. Gonnabathula 
nay y a 

Gopal v. Collector of Aligarh 

Gopal v. Krislmarao 

Gopal Chandra Banerjee v, Bhutnath Sasmal 

Gopnl Chandra Das v. Satya Bhanu Goehal 

Gopilal Bhawaniram v. Pandurang 

Govinda Nadan v, Rumasami Chcttiar 



G. F. P. Railway v. Kunj Behari Lai 
G, f. P. Ry. Co v. Chandulol Sheopratap 

Guduthuru Thirnmappa v. Balakriahna Mudaliar . . 
Gulabchand Rupji v. Emperor 

Gimtur Narasimham v. Nyapati Narayanarao Garu ... 
Haji Rahmatulla v. Secretary of State for India 
Hakim Din v. Qutab Din 
Hari Singh v. Emperor 

Hasumat Husaain v. Emperor 
Hazura Mai- Lai Chand v. Rang Ilahi 
Hem Chandra Sen v. G Irish Chandra Saha 
Hitendra Singh v. Maharajadhiraj of Darbhanga 

Hussain Bakhsh v. Sarbuland , . 

Ibrahim y. Shah Mahomed 
Imam Ali v, Emperor 

Imam Satyanarayana v, Devarakonda Satyanarayana 
Murte . 



v. Debi 
laciar bingh v. Emperor 




27 Bom, L. R, 1343; 49 B. 892; A, I. R, 1026 

Bom. 110;27Cr. L. J.303 
27 Cr. L. J. 309; A. I. R. 1026 Sind 101 
A. T. R. 1925 Ran*. 375; 4 Bur. L. J. 145; 3 R. 

514; 27 Cr, L. J. 312 854 
A. 1. R. 1925 Rang. 36?; 4 Bur. L. J. 1C9; 27 

Cr. L. J 337 849 

27 Cr. L. J. 360 ... 892 

* Lahore High Court .- 479 
18 S. L. R. 85; A. 1. R. 1925 Sind 269 ... 196 
"Calcutta High Court ... 960 

* Lahore High Court .. 674 
8 L. L.J. 3;7L. 113 ... ( 1015 
7 L. L. J. 553; A. I. R. 1926 Lah. 24 , . , 235 

A. I. R. 1925 P. C. 290; 49 M. L J. 806; 43 
C. L J. 1; 23 L. W. 3; 24 A. L. J. 48; (1926) 
M. W. N. 108; 28 Bom. L. R. 211; 53 C. fc8; 30 

C. W. N. 577 P. C. . . | 760 

"Calcutta High Court .. 298 
27 Bom. L R 1503; A. 1. R. 1926 Bom. 69; 50 

B. 121 .. ; 549 

27 Bom. L. R. 1165, A I. R. 1920 Bom. 131 527 

13 O. L J. 132 .. 612 

24 A. L.J. 328 .. >22 

24 A. L. J. 283; A. I. R. 1926 All 293 .. ! 535 

A. L R. 1926 Nag. 265 . . , C6 

A.I. R. 1926 Oudh 207 .. | 17 

S O. W. N. 378 .. | 673 

*Allahabad High Court .. 555 

29 C. W. N. 16 : 3; A. 1. R. 1925 Cal. 291 ... 563 

24 A L.J. 291 ,., 492 

22 L. \V. 752; (1926) M. W. N. 38; A. I. R. 1926 
Mad. 282 ... ! 594 

"Allahabad High Court .. , 134 

*Nagpur Judicial Commissioner's Court . 678 

42 C. L. J. 520; A. 1. R. 1926 Cal. 312 ... 411 

A. I. R. 1926 Cal, 634 ... 963 

A. I. R. 1926 Nag. 241 ... 640 
(1925) M. W. N. 927; A. I. R. 1926 Mad. 224; 23 

L. W. 573 .. 106 

A I. R. 1926 All. 228 .- 993 
27 Bum. L. R. 1500; A. L R. 1926 Bom. 138; cO 

B. 84 .. 548 

23 L. W. 361; 50 M. L. J. 298; A. I. R. 1926 
Mad. 427 ... 915 

27 Bom. L. R. 1039; A. I. R. 1925 Bom. 467; 49 

B. 799; 27 Cr. L. J. 251 ... 427 f 

22 L. W. 592; A. 1. R. 1926 Mad. 66 .. 405 

27 Bom. L. R. 1507; A. I. R. 1926 Bom. 50 .. 351 

A. L R. 1926 Lah. 211 .. 264 
7 L. L. J. 576; A. I. R. 1926 Lah 4; 27 Cr. L 

J. 233 . 217 

7 L. L J. 96; 27 Cr. L. J. 225 .. 209 

"Lahore High Court ... 273 

"Calcutta High Court .. 107 
(1925; Pat. 359; A. I R. 1026 Pat. 147; 7 P. L 

T. 392 .. 626 
7 L. L. J. 548; 6 L. 536; A. I. R, 1926 Lah 

14 .. 268 

*Lahore High Court ,. 263 

27 Cr. L. J. 338; A. L R. 1926 Lah. 212 .. 650 

50 M. L. J. 144; (1926) M. W. N. 7; A. I. R. 

1926 Mad. 428 .. 86 

A. I. H. 1926 Nag. 174 ... 683 
27 Cr. L. J. 297; 24 A. L. J. 270; A. I. R. 1926 

All 302 ... 585 



VoL92j 



INDIAN OASES. 



Indarpal Singh v. Kalloo 

Indian Vacuum Brake Co., Ltd. v. E. S. Luard 

Ishar Das-Dharam Chand, In the matter of 

Ish war Das v. Emperor 

Isram v. Qangia 

Iswor Sant v. Torendra Nath Kuila 

Jagrup Singh v. Indrasan Pande 

Janangir y. Ham Harakh 

Jai Narain v. Jafar Beg 

Jalaluddin r. Emperor 

Jam shed ji Naoroji Gamadia r. Maganlal Bankeylal 

<fe Co. 

Jang Bahadur v. Jagat Narain . , 

Jasoda Koer v. Janak Missir 
Jeobaran Singh v. Ramkishun Lai 

Jeomal v. Emperor 

Jethanand Tekchand y. Secretary of State for India ,,, 

Jitendra Nath Chatterjee v. Jasoda Sahun 

Jiwa Ram v. Jhanda Sin^h 

Jotsing Harising Advani v. Secretary of State for 
India . . 

K. Venkat Reddiar & Co. v. Desikachariar 
K. M. First Grade Pleader, In the matter of 

Kadhori v. Emperor 

KalaGellav. Shivji 

Kala Khan v Natlm Khan 

Kalap Nath v. Emperor 

Kalenther Ammal v. Ma Mi 

Kaliani Anni v. Thirumaiayappa Mudaliar 

Kaliappa Goundan v. Maniam Sellappa Goundnn .. 

Kaliba Sahib v. Subbaraya Ayyar 

Kalka Prasad v Panna 
KaUiiickai v. Palani Koundan 

Kailu v. Emperor 
Kallu Mai v. Partab Singh 
.Kandasami Chettiar v. G. F. F. Foulkes 
Kandasami Chetty, In re 

Kaniza v. Hasan Ahmad Khan 
Kankai v. Tikaram 
Kannammal, In re 

Kannuri Venkata Siva Rao v. Chittoori Rama Krish- 
nayya 

Kanshi Ram v. Muhammad Abdul Rahman 
Kanshi Ram v. Prabh Dial-Arjan Dass & Co. 
Karingan v Harihar Dutt 

Karipineni Rajayya v. Kalpatapu Annapurnamma ... 
Kftshi Prasad v. Emperor 

Kehri Singh v. Thirpal 

Keramat Mandal v. Emperor 

Kcramat Mandal v. Emperor 

Keaaralu Naicker v, Corporation of Madras 



*0udh Chief Court 

42 C. L. J. 543; A. I. R. 1926 Cal. 152; 53 C. 

306 

A, I. R.I 926 Lah. 168 
27 Cr. L J. 344; A. I. R. 1926 Oudh 290 
*Nagpur Judicial Commissioner's Court 
42 C. L. J. 560: A. I. R. 19-'6 Cal. 163 
24 A. L. .J. 323; A I. R. 192o All. 216 
130. L. J.243 
24 A. L. J 355 
24 A. L. J. 230; 27 Cr. L. J. 345; A. I. R. 1923 

All. 271 

27 Bom. L. R 514; A. I. R. 1925 Bom. 314 

A. I. R. 1926 Oudh 318 

4 Pat. 3U; A. I. R. 1925 Pat. 787 

4 Pat 503; A. I. R. 1925 Pat. 623; 27 Cr. L. J. 

359 

27 Or. L J. 326 

*Sind Judicial Commissioner's Court 
(1925) Pat. 353, A. 1, U. 19^0 Pat. 122; 7 P. L. 

T. 299 
1 L. C. 43 

A. I. R. 1026 Sind 130 

22 L. W. 490; A. I. R. 192', Mad. 1279 

A. I. R. 1924 Mad. 479; (1924; M. W. N. 5; 27 

Cr. L J. 230 F. B. 
L. R. 6 A. 216 Cr ; 24 A. L. J. 162; 27 Cr. L. J. 

276; A I.R. 1926 All. 103 
*Sind Judicial Commissioner's Court 
A I II 1926 Lah. W9 
27 Cr I, .1. 303; 24 A. L. J. IDS; A. I. R. 1926 

Ail. 288 

3 H. 474; A. I. R. 1926 Rang. 9 
*MadrasHigh Court 

23 L W 101; A. 1. R. 1926 Mad. 296, 27 Cr. 
L. J. 3:14 

23 L. W. 99; (19*6) M. W. N. 123 & 178; A.I. 

H. 1926 Mai. 3bo 
A I LI 19:26 All. 233 
23 L \V. 227; 5U M L, J, 200; (19?6) M. W. N. 

245; A. 1 H. l9-'6 Mad. 41* 
27 Cr. L. J. *5-; A 1. R. 1926 Lah. 240 
A. 1. R. 1926 Oudh 301 
A. I. K. 1926 Mad. 39ft 
50 M. L. J. 44; V 192) M. W. N. 14G; 27 Cr. L. 

J. 350; A.I. R. 1926 Mad. 346 
3 O. W. N. 114; A. I. R. 1926 Oudh 231 
A. I. K. 1926 Nag. 239 

23 L. W. .384; 27 Cr. L. J. 311; A. I. R. 1926 
Mad. 570 

(1925) M W. N. 8"4; 23 L. W. 103; 50 M. L. J. 
14, A. I. R. 1926 Mad 246 

6 L. L. J. 336; A. 1 R. 1925 Lah. 216 

7 L. L. J. 457; A. I. R. 1925 Lah. 018 
3O W. N 58; 13 O. L. J 53 

22 L. W. 828; A I. R 1926 Mad. 138 

24 A. L. J. 161; A. I. R. 1926 All. 141; 27 Cr. 
L.J.300 

L. R. 6 A. 213 Rev.; 23 A. L. J. 965; A. I. R. 

1926 All. 113; 48 A. 104 
42 C L J. 528; 27 Cr. L. J. 277; A. I R. 1926 

Cal. 117 
42 C. L. J. 524; 27 Cr. L. J. 263; A. I. R. 1926 

Cat 3.'0 

23 L W. 233; 50 M, L. J, 301; A. 1, R. 1926 
Mad. 381 



670 

1008 
249 
856 
295 
U81 
I 
263 

101? 

857 

9 

906 
1031 

871 
742 
371 

617 
346 



354 
214 

459 
491 

uuo 

501 
125 
355 

750 

621 
3 

523 
42H 

787 
loO 

862 
82 
80 

695 



7CO 

403 

$59 

34 



568 
282 
453 
439 
1053 



INDIAN CASES. 



[1926 



TCesheo v. Jagannath 
Kesheorao v. Marotirao 
Khamani v. Emperor 

Khoras, R. P. v. Bha^anji Narsi 
Khazan Singh v. Uiniao Singh 
Khem Kuran Das v. Baldeo Singh 
Khijiruddin v. Emperor 



Khoday CipiiKr.durn Sah v. Swaminadha Mudaliar 
Khurshed Meerza v. Faizuddin AH 
KhurshM Begam v. Abdul Rashid 
Kidar Nath v Bhikham Singh 
Kisnn v. Jasodabai 
Kishanchand v. Emperor 
Komarasami Chetti v. Sundnr Mudaliar 
Kommareddi Ramachandiayya v. Vodury Vcnkatarat- 
nam 

Komminoni Appalaswamy v. Kommineni Simhadri 

Appadu 

Koyyalamudi Chinnayya v. Koyyalamudi Mangamma 
Koyyalamndi Suhbiumu v. Koduri Subbarayudu 
Krishna G opal v ICmperor 
l\utluilinga Mudaliar v. Shanmuga Mudaliar 

It. A. Morrison v. H. M Crowder 
Lachhman Singh v. Empeior 

Lachhman Singh v I!am Das 
Ladha Singh v Sundar Singh 
Lakshmi CJiand v. Mukta Parshad 
Lai Chand v. Huns Kumar 
7/alchand Doomal, In re 
Lalit Kumar Sen v. Emperor 

Lallu Singh v. Our Xarnin 

Lalman v. Shiam Singh 

Langley Billimoria & Co. v. Lakhmichanc'-O opal- 

das 
Laurentius Ekka v DhukiKoeii 

Laxman Bhiknji v Secretary of State for India 
Leoh Moses v. Solomon Jiulnh Meyer 



Government v. Doma Kunbi 
M. S. S. Chettyar Firm v. Ma Tin Tin 
Ma Me Mva v. Ma Min Zan 

Ma Shews II v. Ma Shin 
Ma Tok v. MJI Yin 
Madat Khan v. Emperor 

Mahabir Prasad Tewnri v. Jamuna Singh 
Mahadeo Prasad v. Anandi Lai 
Mahadeo Prasad v. Ram Thai 
Mahadeva Ivor v. Ramkrishna Reddiar 
Mahalinga Naicker v. Vellaya Naickor 

Malmmmad Raz.-i Snheb B'lgami v. Sadasiva Rao 
Mahnraj DhiiMj u[ Uarbhanga v. Commissioner 
Income Tax 

Maharaj Din v. Bhairon 



of 



A. I. R. 1926 Nag. 81: 22 N. L. R. 5 ... ' 121 

8 N. L. J. 227; A. I. R. 1926 Nag. 139 . . 102 
L. R 6 A. 207 Cr ; 21 A. L J. 171; 27 Cr. L. 

J 296; A. I. R. 1926 All. 306 .. 584 

A. I. R. 1926 Sind 6 ... 394 

A. J. R. 1925 All. 44; L. R. 5 A. 609 Civ. ... 335 

A. I. R. 192G All. 282 ,. t 1046 
42 C. L. J. 504; 27 Cr. L. J. 266; A. L R. 1926 

Cal. 139; 53 C. 372 .. 442 

22 L. W. 67fl; A. I. K. 1920 Mad. 213 . . 112 
Calcutta High Court .. 902 

9 N, L, ,7. 11; A. I. R, 1926 Nag. 234 .. 913 
*0udh Chief Court 679 
A.I. R. 1925 Nag. 298 ... 530 
27 Cr. L. .1.243 .. 419 

23 L. W. 212 ... 724 

22 L. W. 582; (1925) M. W. N, 804; A. I, R. 

1926 Mad. 133 . . 800 

23 L. W. 29; A. 7. R. 1926 Mad. 384 ... 844 
*Madraa High Court .. C61 
50 M. L. J. 125; A. 1. R. 1926 Mud 3<)0 ... 805 
27 Cr. L. J. 301 ... 589 
50 M. L. J. 231; 23 L. W. 373; (1926) M. W. N. 

274; A. I R. 1926 Mad. 461 .. P89 

27 Cr. L. J. 302 .. 5fcO 

7 L L. J 582; 27 Cr. L. J. 238; A. I. R. 1926 

Lah 143 ... 222 

"Lahore High Court . . 949 

Lahore High Court ... 762 

8 L L. J. 67 ... 10C6 
7 L, L. J. 590; A. I R, 1926 Lah. 108; 7 L. 55 C51 
A I. R. 1925 Sind 259 .. 1016 
42 C. L. J. 551; A. I. R. 1926 Cal. 174; 27 Cr. 

7, J. 382 .. 8P4 

Allahabad High Court ... 768 

24 A, L, J. 288; A, I. R, 1926 All. 291 ... COS 

*Sind Judicial Commissioner's Court .. 621 
4 Pat. 766; A. I. R. 1926 Pat. 73; 7 P. L. T. 

3o2 .. 179 
27 Bom. 7, R. 463; A. I. R. 19*5 Horn. C65; 49 

B. 554 ... 110 
27 Bom. L. R. 1460; A. I. R. 1926 Bom. 139; 50 

B. 32 ... 367 

27 Cr. L. J. 339 ... 851 

A. J. R. 192?,5 Rang. 349; 4 Bur L. J. 179 ... 677 
A 1. R. 1925 Rang. 320; 3 R. 490; 4 Bur. L J. 

159 .. 368 

A. 7. R. 1925 Rang. 381; 4 Bur. L. J. 146 ... 775 

3 R. 77; A. I R 1925 Rang. 228 .. 489 
I 7 L L. J. 628; 27 Cr. L. J. 283; A. L R. 1926 

i Lah. 221 ... 459 
A.I. R. 1925 P. C. 234; (1925) M. W. N. 738; 

23 L. W. 75 P. C. ... 31 
47 A. 90; 22 A. L. J. 887; L. R. 5 A. 749 Civ.; 

A.I. R. 1925 All. 60 ... 348 
3 O. W. N. 186; 13 0. L. J. 55; A. I. R. 1926 

Oudh 258 % ' , ... 685 
23 L. W. 199; 50 M. L. #%; : A. 7. R. 1926 

Mad. 114; (1925) M W. N. 70? ... 654 
22 L. W. 794; (1923) M. W. N. 884 A. I. II. 1926 

Mod ICO .. 412 

49 M. 49, A. I. R. 1926 Mad. 297 .. 918 

6 P. L. T. 355; 2 P*l. L. U. 212 Cr.; (1925^ Pat. 

49; A. I. R 1920 Pat. 313 ' .. 338 

A. L R. 1926 All. 290 ... 473 



Vol. 02J 



INDIAN CA8B8, 



Mahipal Singh v. Sarj oo Prasad 
Mahomed Ghaus v, Mahomed Ali Shah 
Mahomed Siddiq v Li Kan Shoo 
Mahtab Shah v. Ali Haidar Shah 

Manayikrnma Zamorin Raja of Calicut Y. Venkata- 

giri Pattar 
Man^palli Satanarayanamurthi v. Thommandra Eri- 

kalappa 

Mansaram y. Hudhu 

Maqsud Ali v, Abdullah 

Marotrao v. Municipal Committee, Nagpur 

Masala v. Emperor 

Mattapalli Venkataratnam v. Veppu Sitaramayya ... 

Mating Ba Thein v. Ma Than Myint 

Maung Han v. Ko Oh 

Maung Mya Din v. Maung Ye Gyi 

Maung Po Seik v. U Nandiya 

Maung Po Toke v. Mauns: Po Gyi 

M-iun^ San Pwe v. Hamaclanee 

Maung Sein Htin v. Chee Pan Ngaw 

Maung Set Kliaing v. Maung Tun Myein 

Maung Than v. Zainai Bibi 
Maung Tun v. Emperor 

Mayappa Chettiar v. Kolandaivelu Chettiar 
McDonnell v. Emperor 

Meenakshi sundara Nachiar v. Veerappa Chettiar 
Mg Po Kin v. Mg, Po Oh 
Miran v. Emperor 

Mohammadi Begnm v. Tufail Hasan 

Mohan Singh v. Nathu Mai 

Momoon v. Ibrahim 

Mo)lji Murarji Sunderji v. Pinto 

M)ti Mai-Ram Samp v. Dan la t Ram 

Musch.ees-ud-din v. Emperor 

Muhunmad v. Muhammad Ali . , 

Mahammad Abdul Gaffur v. Muhammad Samaud- 

dia 

Muhimmad Afzal v. Muhammad Mahmud 
.Muhammad Ibrahim v. Ram Chandra 
Muhammad Ibnhim v Yado 
Muhammad Ismail v. Vahiduddin 
Makammad Mohideen Marac.iy.ir v. Ramanadban 
Chettinr . . 

Muhammad Zakaria v Kishun Narain 
Muktind Lai v. Lorindi Bai 
Mul Chand v. Kmperor 
Mulai Rai v. Emperor 

Mulraj v, 1 ndar Singh 

Mulugu Chcngayya v. Aruvelu Devasanambagaru... 

Mumtaz Ali v. Allah Banda 

Municipal Committee, Perozepore v. Milkhi Ram 
Municipal Committee, Taran Taran v. Mul Raj 
Municipal Council, Cochin y. Pratath Bavu Devussi . . 
Municipal Council, Tuticorin v. Shunmugha Moopa- 
nar 

Municipality of Tando Adam v. Khair Mahomed 
Munshi Ram v. Bhagrwaii Das 
Murad Bibi v Arnir Hamza 
Murli Das v, Achut Das 



3 O, VV. N 100; A. I. R. 1926 Oudh 141 ... 99 

A, I. R. 1926 Lah. 183 , . . . 1 294 

A, I. R. 1925 Rang 372; 4 Bur. L. J. 154 ... 768 
6 L. 338; A. I. R. 1925 Lah. 429; 7 L. L. J. 

190 .. 700 

23 L. W. 58 . . 24$ 

50 M. L, J, 150; 23 L. W. 396; (1926) M. W. N. 

282- A. I. R. 1926 Mad. 410 .. 962 

A. I. R. 1926 Nag. 289 708 

L. R. 6 A. 112 Civ.; A I, R. 1925 All. 312 ... 468 

A. I. R. 1926 Nag. 281 .. 7v6 

27 Cr. L. J. 358 ... 870 

A. I. R. 1926 Mad. 305 . ... 314 

3 R. 483, A. I. R. 1926 Rang, 49 .. 

A. I R. 1925 Rang. 366; 4 Bur. L. .T. 180 . 

A. I. R. 1925 Rang. 350; 4 Bur. L. J. 136 ... 719 

A. I. R. 1925 Rang. .V4: 4 Bur. L. J. 178 ... 6G7 

3 R. 492; A. I. R. 1926 Rang. 2 ... 142 

A. I. R. 1925 Rang 382; 4 Bur. L. J. 166 ... 777 

3 R. 275; A. 1. R. 1925 Rang. 275 .. 270 
A. I. R. 1925 Rang. 221; 4 Bur. L. J. 69; 3 R. 

2 ... 512 

3 R. 488; A. I. R. 1926 Rang. 50 208 
A. I R. 1925 Rang. 353; 4 Bur. L. J. 172; 27 

Cr. L. J.318 .. I 702 

"Madras High Court ... | 715 

A. L R. 1925 Rang. 345; 4 Bur. L. J. 117; 3 R. I 

524; 27 Cr. L. J. 321 . 737 

(19' J 6) M. W. N. 4 ... 838 

A. I. R. 1925 Ran?. 373; 4 Bur. L. J. 160 ... 730 
23 A. L. J. 1027; A. I. R. 192vi All. Io8; 27 Cr. 

L. J. 240 ... 224 

23 A. L. J. 88S; A. I. R 1926 All. 20; 48 A. 

17 ... 260 

*Lahore High Court . . 299 

A. I. R. l2o Sind 143; 27 Cr. L. J. 248 .. 424 

*8ind Judicial Commissioner's Court ... (>67 

A 1 R 19 J6 Lah 2:il ... 2^6 

27 Cr. L J. 382; A. I. R. 1926 Lah. 233 ... 894 

A.I. R. 126 Lah 2-13 .. 289 

47 M. L. J. 730; A. I. R. 1925 Mad. 297 ... ! 139 

24 A. L J 307 ... 840 
24 A. L. J 241; A T. R 1926 All. 289 ... 514 
A.I R. 1926 Nag. 238 ... 553 

21 A L J. 311, A. I. R. 1926 All. 270 ... 503 

22 L W. 872; A. T. R. 1926 Mad. 217 .. 597 
A. I R. 19^6 All. 26< ... 644 
7L L. J. 198 .. 131 
27 Cr. L. J. 377; A. I. R. 1926 Lah. 250 . . &S9 
24 A. L J. 314; 27 Cr. L. J. 351; A. I. R. 1926 

All. 277 . 863 

A. I. R. 1926 All. 102; 48 A. 150 .. 4/1 
50 M. L. J. 145; 23 L. VV. 390; V 1926; M. W. N 

289, A. I R. 1926 Mad. 406 .. 720 

*Allahabad High Court .. 600 

A. I R 1925 Lah. 505; 7 L. L. J. 358 .. (i02 

"Lahore High Court .. 765 

22 L. W. 671; A. 1. R. 1926 Mad. 235 .. 18 

(1925) M W. N 880; 23 L. W. 31; A. I. R. 1926 

Mad. 251; 49 M. 210 , ... 610 

A 1. R. 1025 Sind 260 ... 1019 

7 L L. J 598; A. 1. R. 1926 Lah. 152 ... 595 

"Lahore High Court . 278 

5 L. 105; A. L R. 1924 Lah. 493 ... 138 



INDIAN OASES, 



[1926 



MuBtaqimuddin v. Emperor 

Muthu Veerappa Chettiar v, U, K. Sivagurunntha 
Pillai 

Muthuvenkatarama Reddiar v, Official Receiver, South 
Arcot 

Nachiappa Chettiar v. Mahomed Sabir Khan ,,. 

Kuer v. Sham Lai Sahu 



Nanak Chand v. Ram Prasad 

Nand Ram v. Ishar 

Narain Das v. Emperor 

Karain Das v. Saraj Din 

Naraaimha Mudali v. Potti Narayanasami Chetty , 

Narasimham v. Chendramma 

Narnyan v. Dhudabai 

Narayanaswami lyengar v. Thippayya 

Narayanaswami Pillai v. Gopalakrislma Naidu 

Natha Singh v. Sunder Singh 

National Bank of India v. Lakbpat Hai *. 

National Bank of Upper India v. Banai Dhar 
Naunihal Singh v. Alice Georgina Skinner 

Nazar Shah v. Emperor 

Nee-lam Venkotaratanamma v. Vinjamoori Varaha 

Nga Wa Gyi v. Emperor + 

Nidavolu Atchutam v. Ratnaji 

Nihal Singh v, Secretary, Gurdawara Guru Tegh 

Bahadur 

Nilkanth v. Gajanan 
Noor Din v. Siilakhan Mai 
Official Receiver v. Lachmibai 
Official Receiver, Tanjore v. Nagaratna Mudaliar 

Pakkir Mahamud v. Pichai The van 

Pal Singh v Ganga Singh 

Palaniappa Chettiar v. Rajarajeswara Sethupathi 

Pali v. Eniperor 

Pancham Lai -v. Muhammad Yaqub 
Pandurang v. Sambhasheo 
Pandurang Govind Fate v. Maifuzbhai 
Parakh v. Emperor 

Parbodh Singh v. Bodh Raj 
Parineahar Lall v. Emperor 

Partap Singh v, Emperor 

Parumal Thawerdas v. Makhan 

Parvatibai Trimbakrao v. Vishvanath Khanderao 

Raste 
Pattainayya v. Pattayya 

Pazhaniandy Tarakan v. Murukappa Tarakan 

Pearey Lai v. Allahabad Bank Ltd 
Peria Nambi Srimvasachariar v. Kuna Ramasamy 
Naicker 



24 A. L. J. 327; 27 Cr. L. J. 377; A. I. R. 1926 
All. 297 

22 L. W.617; 49 M. L. J. 697; (1926) M. W. N, 
63; A. L R. 1926 Mad. 133; 49 M. 217 

50 M. L. J. 90; 49 M. 227; A. I. R. 1926 Mad. 

350 * 

A 1. R. 1925 Rang. 303; 4 Bur. L. J. 135 
A. I. R, 1925 P. C. 257; 23 A. L. J. 1045; (1926) 

M. VV. N. 10J; 7 P. L. T. 275; 23 L. W, 628 

P,0, 

A. I R, 1926 All. 250 
7 L. L. J. COO- A, I, R. 1926 Lah. 128 
27 Cr.L. J.325 
A. 1. R. 1926 Lah. 238 

22 L. W. 637; 49 M. L. J. 720; A. I. R. 1926' 
[ Mad. 118 

! 49 M. L J. 547; 22 L. W. 669; A. I. R. 1926 

Mad. 154 

I 21 N. L. R. 38; A. I. R. 1925 Nag. 299 
, (1926^ M. VV. N. 1; 23 L. W. 382; A. I. R. 192& 

Mad 366 

i (1925) M. W. N. 780; 22 L. W. 618; A. I. R. 
i 1926 Mad. 112; 50 M. L. J. 48 
7 L. L. J. 559j A. I. R. 1926 Lah. 10 

2 0. W N. 508; A. J. R. 1925 Oudh 483 

3 0. W. N. 83; A. I. R. 1926 Oudh 248 

23 A. L. J. 691; A I. R. 1925 All. 707; 47 A. 
803 

27 Cr, L J. 334 

49 M, L. J. 756; (1926) M. W. N. 44; A. I. R. 
19l' Mad. 191 

3 H. :*3; A, 1, R, 1925 Rung, 219; 4 Bur. L. J, 
23;*7Cr. L. J 251 

23 L. VV. 193; 50 M. L. J 208; (1926) M. W, 
N, 258; 49 M, 211; A. I. R. 11)26 Mad. 323 ,., 

j A. I. R.I 926 Lah. 228 

; A. I. R.I 926 Nag. 248 

i A. I. R, 1926 Lah. 230 

! A. I. R. 1926 Sind HO 

j 49 M. L. J. 643; (1925) M. W. N. 907; A. I. R. 

1926 Mad. 194 
*Madras High Court 
I 2L C. 19i 

! 22 L. W. 858; 50 M. L. J. 34; A. I. R. 1926 
I Mad. 243; 49 M. 208 ~ 

I 7 L. L J. 256; 27 Cr. L. J 223 

24 A. L. J. 313; A. I. R. 1926 All 294 
21 N. L. R. 159; A. I. R. 1926 Nag 200 
A. I. R. 1926 'Nag. 257 

3 O VV. N. 160; A. I. R. 1926 Oudh 202; 27 
Cr. L. J. 328 

7 L L J. 414; A. I. R. 1025 Lah 603 

4 Pat. 472; A. I. R. 1925 Pat. 678; 27 Cr. L. 
J. 373 

27 Cr. L. J. 215; 7 L. 91 
A.I. R. 1926 Sind 113 

27 Bom. L R. 1509 A I. R. 1926 Bom. 00 

50 M. L. J, 215, (1926) M. W. N. 262; A. I. R. 
1926 Mad. 453 

23 L. W. 16; 50 M. L. J, 49; A. T. R. 1926 

Mad. 367 
21 A. L. J. 334; A. T. R. 1926 All. 244 

A. I. R. 1926 Mad. 509 



C03 



398 
370 



274 
316 
597 
741 

960 

333 

321 

663 

847 

483 

258 

144 

94 

63 
7oO 

470 
430 
977 

731 

364 

759 

5 

497 

465 

42 

366* 

175 

558 

47 

40 

744 
195 

S85 
167 
575 

4 

782 



U 
526 



Vol. 92] 



INDIAN CASES. 



Peyy^ty Gopalam Gam v, Adusumilly Gopalakrish- 

nayya 

Pohla v. Emperor 
Pohumal v, Karachi Port Trust 
Pooranaliugam Servai v. Veerayi 

Port Canning and Land Improvement Co. v. Heirs oi 

Bahir Molla 

Pothi Annapurnayya v. Pothi Nagaratnamma 
Prag Devi v. Nathu Mai 
Prabhudayal v. LaHa Das 
Prayaga Doss Jeevaru v. Pachella Doraiswami 

lyengar 
Punjab Commercial Syndicate v, Punjab Co-operative 

Bank Ltd. 
Puran v. Emperor 
Puran Chand v. Emperor 
Qaim Din v. Emperor 
Qamar Jahan Begam v. Munney Mirza . . 

Racharla Narayanappa v. Kondigi Bheemappa 

Radha Kishen-Ohimi Lai v. Alisa Mal-Ishar Dae 

Radha Kishun v. Kashi Nath 

Raghubir Singh v. Nathu Mai 

Haghunath Das-Rani Sarup v. Sulzer Bruderer & 

Co. 
Rahimbeg v. Emperor 

Raisun Nisa v. Zorawar Sah 

Rajeawari Muthuramailinga v. Secretary' of State for 

India 

Ram Badan Upadhiya v Sankatha Misra 
Ram Bhaj v. Duni Chand 
R'im Charan v Emperor 
RamCharanv. Emperor 

Ram Karon v. Emperor 

Ram Kuer v. Govind Ivin M , 

Ram Kumar Das v. Haxfnarain Dns 

Ram Labhaya v Kartatt ftingh' 

Ram Nath Singh v. Gajadhar Lai 

Ram Newaz v. Nankoo ."* . , 

Ram Pher Singh v Sheo Sa ran Singh 

Ram Protap Chamria v. Durga Prosad Chamria 



Ram Sa ran Das v. Girdhari Lai 
Ram Sarup v. Emperor 

Ram Shankar Singh v. Lai Bahadur Singh 

Rama Rao v. Rangaswamy Rao 
Ramakka v. Negasam 

Ramasami Goundan v. Alagia Singaperumal Kadavul 

Ramaswami Aiyangar v. T. Raghava Aiyangar 

Ramchandra v. Lakshman 

Ramdhani Muchi v Khakshardas Tati 

Rampal Singh v. Raj rang Singh 

Ramu Chetty v. Pancharamal 

Ranzor Singh v. Secretary of State for India 

Ratan Mani v. Hans Ram 

Rathan Singh v. Commissioner of Income Tax, Madras 

Ratilalv. Rughnath Mulji 



*Madras High Court 

7 L. L. J. 442; 27 Cr. L. J. 241 

A. I. R. 1925 Sind.22i; 18 S. L. R. 106 

22 L. W. 782; (1926) M. W. N. 114 A. I, R. 
1926 Mad. 186 

43 C. L. J. 45, A. I. R. 1925 Cal. 693 

A. I. R. J920 Wad 591 

7 L. L J. 230 

A. I. R. 19-0 Oudh 293 

23 L. W, 520 

6L. 512; A.I. R. 1926 Lah. 96 

27 Cr. L. J. 383; A I. R. 1926 All. 298 

* Lahore High Court 

7L. L. J. 223; 27 Cr. L. J 249 

12 0. L. J. 313; 2 0. W. N. 413; A. I. R. 1925 

Ondh613 

A. 1. R. 1926 Mad. 491 
7 L. L. J. 603; A. I. R. 3926 Lah. 91 

24 A. L. J. 241; A. I. R. 1926 All. 266 
*Allahabad High Court 

7 L. L. J. Oil; 7 L. 42; A. I. R. 1926 Lah. 125 

7 N. L. J. 208; A. L It. 1925 Nag. 154; 27 Cr. 

L. J. 217 ^ 

3 O. W. N. 121; 13 O. L. J. 10; A. L R 1926 

Oudh 228 

50 M. L. J 59; A. I. R. 1926 Mad. 341 

"Allahabad High Court 

A. L R. 1926 Lah. 240 

2AA. L. J, 317; 27 Cr L. J. 370 

5 L, 416; A. I. R. 1925 Lah. 185; 27 Cr. L. J. 

218 
7 L. L. J 371; A. I. R. 1925 Lah. 483; 2 L. C. 

197; 27 Cr. L. .L 289 
A. LR 1926 All. 62; 48 A. 145 
"Calcutta High Court 
7 L. L J. 406; A. I. R. 1925 Lah. 651 
A. I. R. 11*26 All. 300 
A.I. R. IMG All. 283 
3 O. W. N. 138; A. I. R. 1926 Oudh 196 
3 O. W. N 127; A. I R. 1925 P. C. 293; 49 
M. L. J. 812; 43 C. L. J. 14; 24 A. L. J. 13 j 
(1926) M. W. N. 96; 3 Pat L. R. 330; 28 Bom. 
L. R. 217; 53 C. 258 P. C. 
24 A L. J. 286; A. 1. R. 1920 All. 305 
24 A. L. J. 163; A. I. R. 1926 All. 122; 27 Cr. 

L. J. 250; 48 A. 230 
3 O. W. N. 267; A. I. R. 1926 Oudh 277; 13 O. 

L. J. 2J6 

A.I. R. 1926 Mad. 419 
47 M. 800; 48 M. L. J. 89; A. I. R. 1925 Mad. 

145 
22 L. W 701; (1926) M. W. N. 117; 50 M. L. 

J.42; A. I. R. 1926 Mad. 280 
(1926) M. W. N. 118 

N. L. J. 3; A. I. R. 1926 Nag. 298 
A. I. R. 1926 Cal. 677 
3 0. W. N. 73: A. I. R. 1926 Oudh 211 
(1926) M. \V. N. 45; A. I. R. 1926 Mad. 402 ... 
Lahore High Court 
27 Cr. L. J. 274 
50 M. L. J. 157; 23 L. W. 267; A. I. R. 1926 

Mad. 462 
*Sind Judicial Commissioner's Court 



416 
417 
206 

1055 

37 
730 
163 
764 

90 

322 
695 
9U1 
425 

559 
541 
705 
510 
1013 

712 
169 
675 

311 

1030 

813 

882 

170 

577 
414 
104 
261 

478 
401 

757 



633 
567 

426 

637 

98 

792 

823 
1046 

603 
1031 

126 
1028 

319 

450 

1051 

378 



10 



INDIAN OASES. 



[WB 



Relu Mai v. Ahmad 

Rishi Kesh Law v. Sons arid Heirs of Shamsher 

Khan 

Roshan Lai v. Rustomji ' ,., 

Rudan Singh v. Knlka Singh 
Rudrappa v. Mariappa 
Rukmani Ammal v. Muthuswami Reddi 
Ruldu Ham v. Surain Singh 

Rustom K. Sidhva v. Indian Merchants Association 
8. 0. Mitra v. Nawab Ali Khan 
Sadasheo v. Bapu 
Sadasheo v. Karim 
Saerhru Mal-Har Charan Dass v, Dlianpat Rai-Diwan 

Chand 

Snhai iVIistri v Satali Darji 
Sikharam v. Sheoram 
Sankaralinga Mudaliar v. Official Receiver, Tinnevelly 

Sant Sahai v. Chhutai Kurrni 

Sarda Bux Singh v Kandhia Bux 

Sartaj Koer v. Mahadeo Bux 

Sasi Bhusnn Malliek v Sedananda Mallick 

Satheppa Chettiar v Muthusami Pillai 

Savarese v Wakf Estate of Ismail Ahmad Mada 

Seetharamma Naidu v. Govindasauii Chettiar 

Sekkhu Mustabu v. Nani 

Shafi Ahmud-Nabi Ahmad v. Krnperor 



Shaikh Karim v. Emperor 

Shakur, M. A. v. Municipal Corporation, Rangoon ... 

Shankar v. Pandurang 

Shankar Bakhsh v. Taluqdei 

Sheikh Badel y. Abdul Rahim 

Sheo Charan Singh v. Kishno Kuer 

Shoo Nandan v. Hira Lai 

Sheosahai v Ramkrishna 

Shib Narain v. Gajadhar 

Sliidraj Bhojraj Desai v. Renaki Konda Mahar 

Shiva Aithala v. H...I...V, :. Aithala 

Shri Goverdhanlalji Alaliarnj v. Shri Chandra- 

prabhavati 
Shunkar v. Mahadei 
Siban Kai v. Bhagwat Das 

Sidik v. Emperor 

Singh Ram v. Kala 

Sinn a Karuppan v. Muthiah Chettiar . . 

Sinnanna Kone v. Muthupalaiii Chetti 

Sita Ram v Nanak Chand 

Sital Prnsad Singh v. Jagdeo Singh 

Sitapat Rai v. Mohammad Asghar 
Sites war Roy v. Tepua Barman 
Sivan Pillai v. Venkateswara Iyer 
Soundara Rajan v. Natarajan 



Sri Kishen v. Chandra Sekhar Baksh Singh 
Srinivasa Chetti v. Chenna Chetti 
Sripati Dutta v. Bibhuti Bhusan Dutta 
Subbiah Goundau v. Sonnimalai Goundan 
Subramania Aiyar v. Krishna Iyer 
Subramania Iyer v. Shunmugam Chettiar 



7 L. 17; A. I. R. 1926 Lah. 183 . . 1 947 

"Calcutta High Court, 48 

A.I. R. 16 Lah. 249 .. 669 

A, I R 192GOudh309 ... 903 

A.I R. 11)26 Mad. 490 ... 385 

50 M. L. J. 94; 27 Cr L. J. 331 . . 747 

7 L L. J. 618; A. I. R. 1926 Lah. 120 . . 531 

*Sind Judicial Commissioner's Court . 374 

2 0. W. N. 920; A. I. R. 1926 Oudh 153 . . 50 
A. I. R. 1926 Nag. 162 .. 33 
A.I. R. 1926 Nag. 267 .. 211 

7 L L J. 420; A. I R. 1925 Lah. 596 . . 198 

*Patna High Court ... 1.33 

21 N. L. R. 189; A. L R. 1926 Nap. 229 ' ... 334 
49 M L. J. 616; (1920) M. \V. N. 832; A. I. R. 

1926 Mad. 72 . . 504 

3 O. \V. N. 65; A I. R. 1926 Oudh 199 ... 23 
*0udh Chief Court ... 665 
A. I. R. 1926 Oudh 332 ... 657 
* Calcutta High Court 845 
A. I R. 1926 Mad. 537 . 393 
A. I. R. 1925 Rang. 376; 4 Bur. L. J. 157 .. 771 

23 L. W. 149; (1926) M. W. N. 162; A. I. R. 

1926 Mad. 352 . . 976 

A. I. R. 1926 Mad. 536 377 
A. I. R. 1925 P. C. 305; 49 M. L. J 834- 23 
L. W. 1 (192fi) M. W. N. 62; 43 C. L J. 67- 
3 0. W. N. 165; 28 Bom. L. R. 158; 27 Cr 
L J. 228; 30 C. W. N. 557 P. C. .212 

27 Cr. L. .7. 319; A. 1 R 1926 Nag. 27ft ... 703 

A 1. R. 1925 Rang. 367; 4 Bur. L. J. 161 .. 780 

9 N. L. J. 22 646 

30. W. N. 375 '" 722 

A. I. R. 1926 Nag. 273 ' 7^5 

C P. L. T. 860; A. I R. 1923 Pat. 146 . 2 

13 0. L. J 6; A I. R. 1926 Oudh 226 ... 247 
A.I. R. 1926 Nag. 61 ..I 62 

24 A L. J. 260 ... 772 
27 Bom. L. R. 1490; A. I. R. 1926 Bom. 140 .. 554 
49 M. L. J. 719; A. I. R. 1926 Mad. 233 . 523 

27 Bom. L R 1496; A. L R. 1926 Bom. 136 . . 552 

13 L. J 241 .. 46 
6 P. L. T. K33; 27 Cr. L. J. 2^5; 5 Pat. 25* 

A. I. R. 1926 Pat 176 ... 219 

27 Cr. L. J. 332 .. 748 

8 L. L. J. 39; A. I. R. 1926 Lah. 241; 7 L. 173... 1012 

22 L \V. 816; A. I. U. 1926 Mad. 178 .. 373 

A.I R. 1926 Mad. 378 ... 352 

A. I. R. 1926 Lah. 182 313 
4 Pat. 294; A. I. R. 1925 Pat. 577; 7 P. L. T. 

415 .. 474 

A. I. R. 1926 Oudh 193 ... 29 

A. I. R. 1926 Cal 589 ... 908 

22 L. W. 796; A. I. R 1926 Mad. 130 . 556 
A. I. R. 1925 P. C. 244; L. R. 6 A. d\ C.) 

180; 23 A. L. J. 1010; 48 M. 906; 49 M. L. 
J. 836; 43 C L. J. 70; 28 Bom. L. R. 204- 
(1926) Mv W. N. 22; 3D C. W. N. 434; 52 I. A! 

310 P. C. ... 2*9 

*Allahabad High Court 353 

23 L. W 705 . 251 
53 C. 319; A. I. R. 1926 Cal. 593 ... 940 
23 L. W. 87 . 400 
(1925) M. W. N. 887; A 1. R. 1926 Mad. 211 . 833 
49 M. L. J. 363; 22 L. W. 538; A. I. R. 1926 

Mad. 65 ... 566 



Vol. 92] 



INDIAN OASES 



11 



Subramaniam Patter v. Velu Nair 

Buggusetty Subbayya v. Irugulapati Qangayya 
Sukhdeo v. Ram Dulari 

Sukhdeodas Ram Prosad v. Jaintilal Jamunadas 
Sultan Abdul Kadir v. Mohammad Rsuf 
Surendra Nath Banerjee v. Shashi Bhusan Sarkar 

Surendra Nath Das Gupta v. Satyendra Nath 
Suryabhan v Renuka 

Susil Chandra Guha v. Gouri Sundari Devi 
Swaminatha Odayyar v. Thiagarajaswami Odayar ... 
Tadepalli Subba Rao v Motamari Lakshminarayana .. 
Tahilram Tarachnnd v. Vassumal Deumai 
Taj Mohammad v Farid Khan 
Tapiram v. JuMlki-hoiv 
Taramonee Choudhuram v Sheikh Elim 
Tarkeshwar Prasad Tcwari v. Devendra Prasad 
Tewari 

Teja Singh v. Emperor 

Tliakar Singh v. Indar Singh 

Thaknr Singh v. Sonkuar 

Thamaya Bangarurtwami v. Thirunatliasundra Doss .. 

Thanappa Chetty v. Esuf Khan Sahib 

Tharamal Parkara Kalpathoor v. Uruppoyil Ambu .. 

Thirumalachaviar v. Athimoola Karayalore 

Thirumalai Pillai v. Arimadiella Padayachi 
Thokala Seshamma v. Yellaturi Venkamma 

Tikaram v. Narayan 

Tiruvangalath Nellyoton Paidal Nayar, In re 

Trustees, Parakkat Devaswom v. Venkatachalam 
Vadhayar 

Tukaram v. Chintaram. 
Tulsi v. Emperor 

Tula si< lass Gov.ndjec v. Madhavadass Lalajee 
Umasasi Dob I v Akrur Chandra Maxumdar 

Umrao Singh v. B?ni Prashad-Mohr Chnnd 
Unnamalai Ammal v. Abboy Chetty 
Uttim Singh v. Judlian Rni 

Vrtdapalli Varadacharyulu v. Khandavilli Xarasimha- 
charyulu 

Vaithi Matharan v. Narayannxwami Iyer 
Vaithialinga Mudalliar v. Srirangath Anni 



Vallabhdas Tulsidas v. Nagardas Juthabai 
Vceranan Ambalam v. Ayyachi Ambalam 

Veerappa Chettiar v. Sundaresa Sastrigal 
Vecraswami Mudali v. Venkatachala Mudali 

Veeraswami Pillai v. Chidambaram Chettiar 
Vemulapalli Saelharamammi v. Maganti Appiah 



49 M. L. J. 717; 22 L. W. 749; (1926) M. W. N. 

36; A. I. R 1926 Mad. 249 .. 

22 L. W. 827; A. I. R 192G Mad. 183 ... 
A.I. R. 1926 Oudh 313 ... 
A. I R 192G Cal. 697 . 

23 L. W. 4C8 . 
42 C. L J L27; 52 C. 939, 27 Cr. L. J. 239; 

A. I. R. 1920 Cal 437 .. 

"Calcutta High Court .. 

8 N L. J. 232; A I. R. 192G Nag. 81 ... 

"Calcutta High Court ... 

23 L \V 2C, C1926) M. W N. 140 ... 

22 L W. 3S9; A. I. R. 1925 Mud. 1211 . . 
A. I. R li)2o Sind 111) . 
"I ahore High Court . 

21 N. L. R 1G9: A I R. 1926 Nag. 209 .. 
A. I. R. 1926 Cal. 582 . . 

3 Pat. L R. 270; 7 P. L. T. 267; A. I R. 1926 

Pat 180 ... 

7 L. L. J. 631; 27 Cr. L. J. 285 . . 

"Lahore High Court . 

"Xagpur Judicial Commissioner's Court . . 

(1925; M. W. N 779, A. I. R. 1923 Mad. 135, 

23 L W. 406 .. 

23 L. W. 36 

49 M. L J 691); (1925) M. W. N. 917, A.I. R. 
1926 Mad. 260 ... 

22 L. W. 695; (1926) M. W. N. 112, A. I. R. 1926 
Mad. 256 .. 

A I. R. 1926 Mad. 510 

22 L. W. 863; 27 Cr. L. J. 280; A. I. R. 1926 

Mad. 218 .. 

A. I. R. 1926 Nag 246 ... 

22 L W. 691; 0926) M. W. N. 169; A.I. R. 
1926 Mad. 225 ... 

23 L. W. 22; 50 M. L. J. 153; A. L R. 1926 
Mad 321 . 

20 N. L. R. 17; A. I R. 1924 Nag. 91 . 

7 L L J. 389; A. I. R. 1925 Lah. 599; 27 Cr. 

L. J 2:il 
221.. W Oil', (1923^ M W N. 68, A. I R. 1926 

Mad 118 ' .. 

CO (AW. N. 160; A T. R. 1026 Cal. 542; 53 

C 297 .. 

"Lahore High Court .. 

23 L. W. 168. 50 M L. J. 172 ... 

3 Pat. 288; A. I. R. 1924 Pat, 589; 27 Cr. L. J. 

220; 7 I*. L. T. 288 ... 

(l r )?5) M. W. N. 886; 23 L. W. 85; A. I. R. 1926 
Mad 253 .. 

22 L. W. 673; A. I R. 1926 Mad 210; 27 Cr. 
L J.313 . 

A. I R. 1925 P. C. 240; L. R. 6 A (P. C ) 
169, 49 M. L J. 769; 42 0. L. J 563; 48 M. 
883; 30 (\ W. N. 313; 28 Bom L. R. 173; 
(U)2o) M. W. N 11; 52 I. A. 322 P. C. . 

23 Bom. L. R. 1213 .. 
22 L. W. 772; (1925) M W. N. 857; 49 M. L. 

J. 791; A. I. R. 1926 Mad 163 ... 

49 M L J. 36rt; 18 M 676; 22 L. W. 606; 

A. I. R 1925 Mad 1201 . . 

22 L. W. 118; (1925; M W N. 763; A. I. R. 1926 
Mud IS; 50 M. L J. 102 ... 

"Madms Hijjh Court ... 

23 L \V 285; (1926) M. AY. N. 238; A. L R. 
1020 Mad. 457 ... 



C87 
F25 
,"92 
396 

223 

544 
118 
1)46 
846 
593 
562 
77!) 
305 
7H 



184 
461 
721 
824 

415 
753 

109 

776 
520 

456 
44 

624 



709 
327 

215 
570 

984 
839 
524 

172 

61o 

855 



85 
143 

968 
300 

20 
819 

827 



INDIAN OASIfflS. 



[1926 



Venoatachariarv, Bontham Pachayappa Chetty 
Venkata Narasimha Raov. Hemadu Suryanarayana .. 

Veukatarama Aiyar v. Sundaram Aiyar 
Venkatasubba Rao v. Adinarayana Rao 

Venku Shettithi v. Ramachandrayya 

Venugopal Nayudu, In re 

Vepuri Subbayya v, Secretary of State for India . . 

Vinayak v. Kaniram 

Virappa Govindappa Konraddi v. Basappa Virbhad- 

rappa 
Vishvanath Shamba Naik v. Kamkrishna Martoba 

Kasbekar 

Vishvanathbhat Annabhat v Mallappa Ningappa 

Vishwanath Prasad v. Emperor 
Vithoba v. Sadasheo 

W, & T. A very Ld. v. Keaaorarn Poddar 
Wasal v. Emperor 

Washilian v, Mir Nawab AH 

Wilayati Begam v. Jhandu Mal-Mithu Lai 
Woodward v, Emperor 

Yado v. Ambashankar 

Yasin Bibi v, Munwar Hussain 

Yusif Mahbub & Co. v. Salloh Mahomed 
Zukoobai v. Bhalsingh 



22 L, W. 698; (192*) M. W. N. 106; A. 1. R. 

1926 Mad, 250 . 510 
50 M. L, J, 75; 23 L, W. 409; A. I. B. 1921 

Mad. 325 . . 802 

(1926) M, \V, N. 48 .' 1045 
22 L, W. 631; 50 M. L. J, 46; A. I. R. 1926 

Mad. 227 . 473 
49 M. L. J. 634; 22 L. W. 883; (1925) M. W. 

N. 866; A. L R. 1926 Mad. 8J; 49 M. 29 ... 342 

27'Cr. L.J. 384 ... 896 

*Madraa High Court . . 78 

A.I, R. 1926 Nag. 293 .. 810 

27 Born. L. R, 1511; A. I. R. 1926 Bom. 139 ... 354 

27 Bom. L, R. 1478; A. I. R. 1926 Bom. 86; 50 

B. M .. 537 
27 J3om. L. R. 1103; 49 B, 821; A, I R. 1925 

Bom, 514 ... 623 

27 Cr. L. J. 210; A. I. R. 1926 Nag. 98 . 162 

A, I, R. 1926 Nag. 253 58 

30 C. W. N. 152; A. I. R. 1926 Cal, 481 ". 1001 
A. I. R. 1925 Lah. 495; 7 L. L. J. 277; 27 Cr. L 

J- 299 . 587 
3 Pat. 1018; A. I. R. 1925 Pat. 138; 7 P. L. T 

l ..' 133 

24 A. L. J. 349; A. I. R 1926 All. 286 897 
A. I.B. 1925 Sind 233; 18 S. L. R. 199; 27 Cr 

I-J.237 .. 433 

A. I. R. 1926 Nag. 260 75 
22 A. L. J. 700; A. I. R. 1924 All. 709; 46 A 

743; L. R. 5 A. 524 Civ. . .' 345 

'Sind Judicial Commissioner's Court 387 

8 X. L. J. 20.3; A. I. R. 1926 Nag. 155 ... 74 



Table showing seriatim the pages of Volume 92 of Indian Cases and the 
corresponding Pages of other Law Journals and Reports. 

An asterisk (*) denotes casts not reported yet elsewhere. 



Page 



Names of cases reported. 



Jagrup Si ugh v. Indrasan Pande 

Sheo Charan Singh v. Kishno Kuer . . 

3 Kalka Prasad v. Panna 

4 j Parvatibai Trimbakrao v Vishvanath Khanderao 
j lluste 

3 Official Receiver v. Lachmibai 
( j I Jamshedji Naoroji Gamadia v. Maganial Bankvylal <fc 
1 Co. 

14 Pearcy Lai v. Allahaba<l Bank, Ltd. 

Ui Duma Tomn Rumuv v. N,Ulm Fartha Kuivl 
17 Gnnri Shankar v. Bhairou Fcrs'iad 

15 Municipal Council, Cochin v. P ratal h Bavu Devusisi 
10 , Deo Kali v. Rtinehoor Bux 

20 Ve'iras \vami Mudali v Youkatachnla Mudaii 

23 S.tnt Sahai v. Chhutai Kr.rnii 

25 Ahmad Baig v. Model Mill, Nagpur, Ld. 

29 Sitapat Ram v. Mohammad Asghar 

30 i Appajee Pillai v. Manika Mudali .- 

31 ' Mahabir Prasad lV,vari v. Jainuna Singh . . 

33 Sadasheo v. Bapu 
31 Karingan v. Ranliar Dull 
35 i Cliet Ram v. llaichu 
;{6 ' Akabai v. Narayan 

37 I Port Canning and Land Improvement Co. v. Heirs 
of Bahir Molla 

40 i Pandurang Govind Fate v, Maifuzbhai 
12 Pal Singh v. Ganga Singh 

41 , Tikaram y. Narayan 

46 ! BarkatBibiv Abdul Aziz 
4G ' Shunkar v. Mahadei 

47 IV -I .: :.. v. Sambhasheo 

48 i Resin Kesn Law v. Sons and Heirs of SJuimesher 

I Khan ... I 

50 i S. C, Mitra v. Nawab All Khan . 

58 ' Vithoba v. Sadasheo 

61 Banjoisi Nanisamma v, BanjoisiSarasammari 

62 Sheosahai v. Ramkrishna . . i 
83 Naunihal Singh v. Alice Qeorgina Skinner ... j 

71 Zukoobai v. Bhalsingh j 

75 Yado v. Amba Shankar ... j 

78 Vepuri Subbayya v. Secretary of State for India . . i 
80 Kankai v, Tikaram 

82 Kaniza v. Hasan Ahmad Khan 
85 i Imani Satayanarayana v, Devarakonda Satyanarayana 
i Murte 

85 Vaithialinga Mudalliar r. Srirangath Anni 



94 j National Bank of Uppar India v. Baasi Dhar 
98 Rama Rao v. Rangaswamy Rao 



"Where reported. 



24 A. L J. 325; A. I. It. 1926 All. 2IC 
6 P. L T. H60; A 1. R. 1926 Pat. HO 
A. T.R. 1926 All. 233. 

27 Bom. L U. 1501); A. I. R. Utefi Bom 5)0 
A. I. R. PJ26 rfind 140. 

27 Bom. L. R. 314; A.I U. 1923 Bom. 314 

24 A. L. J. 3.U, A. 1. R. 192G All. 244 

27 Bom. L R. 2i ( J, A 1. R 1925 P,,, v 431 

A 1. R. I ( .i260iidh207 

22 L W. 071, A I R. ]20 Mud. 23 > 

A. 1 R jytfi Oudh 253, 13 0. L J 208 

22 L \V UR; (1923) M. W X 763, A 1 R 
IWBMad. Jb, 5 r ) Al. L. J. 102 ' ' ' 

3 O. W. N.63, A I. U. 1926 Oudh 19!) 

A. 1. R. 1926 Nag. 262. 

A. I. R 1926 Oudh 193. 

21 L. \V. 652. 

A. 1. R. 1925 P. C. 231; (1925. M. W. N 738- *3 

L. W. 75 P. C. ' ' 

A. L R. 1926 Nag. 102. 
3 0. W. N. 58; 13 0. L, J. 33, 
2L. C. 178. 
A. L R. 1926 Nag. 25 L 

43 C. L. J. 43; A, I. R. 1926 Cal, 693, 

A.I. R. 1926 Nag. 257. 

2 L. C. 194. 

A. I R. 1926 Nag. 246. 

2 L. C. 166. 

130. L J.211. 

21 N. L, R. 159; A. 1. R, 1926 Nag, 200. 

* Calcutta High Court 

2 0. W. N. 920, A. I. R. 1926 Oudh 153 
A. 1. R. 1926 Nag. 253. 

23 L. W. 157, ^1926) M. W. N. 163, A, 1. R, 1926 
Mad. 353. 

A. I. R. 1926 Nag. 61. 

23 A. L. J. 691; A. 1. R. 1925 All. 707; 47 A. 

803. 

8 N. L. J. 205; A. I. R. 1926 Nag. 155 
A. L R. 1926 Nag. 260. 
*Madras High Court. 
A. I. R. 1926 Nag. 239. 

3 0, W. N. 114; A. L R. 1926 Oudh 231. 

50 M. L. J. H4; (1926) M. W. N. 7; A. L R. 1926 

Mad. 428. 
A. I.R. 1925 P. C, 249; L. R. 6 A. (P. C.) 160- 

49 M. L. J. 769; 42 C L. J. 563; 48 M 883'; 

30 C. W. N. 313; 28 Bom. L. R. 173; (1926 

M. W. N, 11; 52 I. A. 322 P. C. ( ' 

3 0. W. N. 83; A, I. R. 1926 Oudh 248 
A. I. R. 1926 Mad. 419. 



CASES. 



[1920 



91 
10J 

KI: 

104 
106 

107 
109 

110 

112 
118 
119 
121 
124 

125 
126 
131 
133 

133 
134 
138 
139 
142 
143 
144 
145 
162 
163 
164 
167 
169 

170 
172 

174 

175 
177 

178 
179 
183 
184 



191 

195 
196 
198 

200 



206 
208 
209 
212 



213 



Mahipal Singh v. Sarjoo Prasad 
Kandasami Chcttiar v. G. F. F. Foulkes 
Kesheorao v. Marotirao 
Ram Kumar Das v. Haranarain Das 
Govinda Nadan v. Kamasami Ohettiar 

Hem Chandra Sen v. Girish Chandra Saha 
Tharamal Parkam Kalpathoor v. Uruppoyil Ambu . 

Laxman Bhikaji v. Secretary of State for India 

Khoday Gangadhar Sah v. Swaminadha Mudaliar .. 

Suryabhan v. Renuka 

Doraswami Nadar v. Joseph L. Mother 

Kesheo v. Jagannath 

Pazhaniandy Tarakan v. Murukappa Tanikun 

Kalenther Amrnal v. Ma Mi 
Rampal Singh v. Raj rang Sin#h 
Mukund Lai v. Lorindi Bai 
Washihan v. Mir Nawab Ali 

Sahai Mistri v. Satali Dnrji 

Gopal v. Collector of Aligarh 

Murli Das v. Achut Das 

Muhammad Abdul Gaffur v. Muhammad Sanisuddin 

Maung Po Toke v. Maung Po Gvi 

Vallabhdas Tulsidas v. Nagurdsis Juthabhai 

National Bank of India v. Lakhpat Rai 

Abdullah v. Emperor 

Vishwanath Prasad v. Emperor 

Abdul Qadir v. Emperor 

Bajirao v. Dadibai 

Partap Singh v. Emperor 

Rahimbeg v. Emperor . . 

Rain Charan v. Emperor 
Uttim. Singh v. Judhan Rai 
Bhagirathi v. Emperor 

Pali v. Emperor 

Batisa Kuer v. Raja Ram Pandey 

Barkatv. Relu Mai 

Laurentius Ekka v. Dhuki Koeri 

Prag Devi v. Nathu Mai 

Tarkeshwar Prasad Tewari v, Devendra Prasad Te- 



3ecil Cole v. Nanalal Moraji Dave 

Parbodh Singh v. Bodh Raj 

Fateheand v. Parbati Bai 

Saghru Mal-Har Charan Dass v. Dhanpat Rai-Diwan 

Chand 
D. R. K. Saklat v. Bella 



'ohumal v. Karachi Port Trust 
daung Than v. Zainat Bibi 
lashmat Hussain v. Emperor 
Shafi Ahmad-Nabi Ahmad v. Emperor 



Akbar Ali v. Emperor 



3 0. W. N. 100; A. 1. R. 1926 Oudh 141. 

A. I. R. 1926 Mad ^96. 

8 N. L. J. 227; A. I. R. 1926 Nag. 139. 

^Calcutta High Court. 

(1925) M. W. N. 927; A. I. R. 1925 Mad. 224; 23 

L. W. 573. 

^Calcutta High Court, 
49 M. L.J. 699; (1925) M. W. N. 917; A. I. R. 

1926 Mad. 260. 
27 Bom. L. R. 463; A. I. R. 1923 Bom, 305; 49 

B. 554, 

22 L. \V. 679; A. I. 1926 Mad, 218 

8 N. L. J. 232; A. I. R. 1926 Nag. 84. 

A.I.R. 1926 Mad. 319, 

A. J. R. 1926 Nag. 81; 22 N, L. R. 5. 

23 L. W. 16; 50 M. L. J. 49; A, I. R. 1926 Mad. 
3G7. 

3 R. 474; A. L R. 1926 Hang. 9. 

3 O. W. N. 73; A. I. R. 1926 Oudh 211. 

7 L. L. J. 198. 

3 Pat. 1018; A. I. R. 1925 Pat. 138; 7 P, L. T. 

424. 

*Patna High Court. ; 
* Allahabad High Court. 
5 L. 105, A 1. R. 1924 Lab. 49.'i. 
47 M. L.J. 730; A. I R. 1925 Mad. 297. 
3 R 492; A. 1. R 11)26 Rang. L\ 
23 Bom. L. R. 1213. 

2 0. W. N. 508; A. I. R. 1!25 Oudh 433. 
A. 1. R. 192 i All. 233; 27 Cr. L J. 19.1. 
27 Cr. L. J. 210; A. I. R. 1926 Nag. 98. 
27 Cr, L. J. 211. 

27 Cr L. J. 212; A. I. R. 1926 Nag. 286. 

27 Cr. L. J. 215; 7 L. 91. 

7 N, L, J. 208; A, I, R, 1925 Nag. 154; 27 Cr, L, 

J. 217. 
5 L. 416; A. 1 R. 1925 Lah. 185; 27 Cr. L, J, 

218. 

3 Pat. 288; A. I. R. 1924 Pat. 589; 27 Cr, L. J, 
220; 7 P. L. T. 288. 

30 C. W. N. 142; 27 Cr. L. J. 222; A, I. R. 1926 

Cal. 550. 

7 L. L. J. 256; 27 Cr. L. J. 223. 
(1925) Pat. 343; A. I. R. 1926 Pat, 192; 7 P. L, 

T 393 
7 L.L. J. 509; A. I. R. 1925 Lah. 627. 

4 Pat. 766; A. L R. 1926 Pat. 73; 7 P. L. T. 362. 
7 L. L. J. 230. 

3 Pat. L. R 270; 7 P. L. T. 267; A. I. R 1926 

Pat. 180, 
26 Bom. L. R. 880; A. I. R. 1925 Bom, 18; 49 B< 

172. 

7 L. L. J. 414; A. I. R. 1925 Lah. 603, 
18 S L. R. 85; A. I. R. 1925 Sind 269. 

7 L. L. J. 420; A. I. R, 1925 Lah. 596. 

23 A. L. J. 1016; A. I. R. 1925 P. 0. 298; 49 M, 

L. J. 821; 43 C. L. J, 23; 30 0. W. N. 289; 28 

Bom. L. R. 161; 3 R. 582 P. C. 
A. I. R. 1925 Sind 221; 18 S. L. R. 106. 
3 R. 488; A. I. R. 1926 Rang. 50. 
7 L. L. J. 96; 27 Cr. L J, 225. 
A. I. R. 1925 P. C. 305; 49 M. L. J. 834; 23 

L. W. 1; (1926) M. W. N. 62; 43 C. L, J. 67; 

3 0. W. N. 165; 28 Bom. L. R. 158; 27 Or, 

L. J. 228; 30 0. W. N. 557 P. C. 
7 L. L. J. 520; A. L R. 1925 Lah. 614; 27 Cr. L. 

J. 229. 



Vol. 92] 



15 



214 
215 
216 
217 
219 
222 
223 

221 
225 

233 
235 
237 
241 
241 
2i5 

247 
249 



249 
251 
252 
253 
254 
257 

258 
259 
260 
261 
262 
263 
264 

261 
265 
263 
270 
272 
273 
274 



278 
282 



289 



294 
295 
296 
297 



299 



K, M. First Grade Pleader, In the matter of 

Tula! v. Emperor 

Amiruddin v. Emperor 

Hari Singh v. Emperor 

Siban Rai v. Bliagwat Dass 

Lachliman Singh v. Emperor 

Surendra Nath Banerjce v. Shashi Bhushan Sar- 
kur 

Miran v. Emperor 

Dhanrajgirji Narasinggirji v. Tata Sons, Ltd. 

China v. Te Thoe Seng 

Firm Jai Singh-Diyal Singh v. Narmal Das 

Baideo Singh v. Gulab 

Asa Nand v. Mali mud 

Sadasheo v. Karim ; : 

Manavikrama Zarnorin Raja of Calicut v. Venkatagiri 

Paltar 

Sheo Nandan v. Him Lai 
Akella Ramasomayyagulu v. Official .Receiver, 

Godavari 

Ishar Das-Dharaui Chand, In the matter of 
Srinivasa Chetti v. Chenna Ohetli 
Din Mohammad v. Matab Bibi 
Maung Ba Thein v Ma Than Myint 
Banu Mai v. Paras Ram 

Commissioner of Income-Tax v. Luc-know Ice Asso- 
ciation 

Natha Singh v. Sunder Singh 
Kanahi Ram v. Prabh Dial Arjan Das & Co. 
Mohamdi Begam v. Tufail Hasan . . 

Ram Labhaya v. Kartar Singh 
Jahangir v. Ram Harakli 
Ibrahim v. Shah Mahomed 
Bachan v. Raghunath 

Hakim Din v. Qutab Din 

Bashir Ahmad v. Zobaida Khatuii 

Hussain Bakhsh v. Sarbuland . 

Maung Sein Htin v. Ghee Pan Ngaw 

Dittu Rain v. Nawab 

Hazura Mal-Lal Chand v. Rang Hahi 

Nag Kuer v. Sham Lai Sahu 

Murad Bibi v. Amir Hamza 

Kehri Singh v. Thirpal 

Muhammad v. Muhammad Ali 
Soundara Rajan v. Natarajan 



Mahomed Ghaus v. Mahomed Ali Shah 

Isram v. Gangia 

Moti Mai-Ram Sarup v. Daulat Ram 

Attar Singh v. Kirpa Singh 

Firm of Ram Prosad-Ram Kissen v. Haro Kumar 

Basak 
Mohan Singh v. Nathu Mai ... 



A. I. R, 1924 Mad. 479; (192i) M. W. N. 5; 27 

Cr. L. J. 23!) F. B. 
7 L. L. J. 389; A. 1 R. 1925 Lah. 599; 27 Cr. L. 

J. 231. 
40 C. L. J. 306; A. I. R. 1925 Cal. 217; 27 Cr. L, 

J. 232. 
7 L. L. J. 576; A. I. R. 1926 Lah. 4; 27 Cr L J. 

233 

6 P. L. T. 833; 27 Cr. L. J. 235; 5 Pat. 25; A I. 
R. 1926 Pat. 176. 

7L. L. J.582; 27 Cr. L. J. 238; A.I. R. 1926 
Lah. 143. 

42 C. L. J. 127; 52 C. 959; 27 Cr. L. J. 239; A. 

I. R. 1926 Cal. 437. 
23 A. L. J. 1027; A. I. R. 1926 All. 168; 27 Cr. 

L. J. 240. 
26 Bom. L R. 858; A. I. R. 1924 Bom. 173; 49 

B. I. 
3 R. 477; A. I. R. 1926 Rang. 14. 

7 L. L J. 5,5 J; A. I. R. 1926 Lah. 24. 
*0udh Chief Court. 

7 L. L. J. 542. 

A. I. R. 1926 Nag. 267. 

23 L. W. 58. 

13 O. L. J. 6; A. I R. 1926 Oudh 226. 

23 L. W. *'(); 1926 M. W. N. 169; A. I. R. 192, 

Mad. 360. 

A. 1. U. 11)26 Lah. 1G8. 
23 L. W. 705. 
A. 1. R, 1926 Lah. L ; 03 
3 R. 483; A I. R. 1926 Rang. 49. 
7 L. L. J. 397; A. I. R. 1925 Lah. 640, 

A. I. R. 1926 Oudh 191. 

7 L. L. J. 559; A. I. R. 1926 Lah. 10. 

7 L. L. J. 457; A. I. R. 1925 Lah. 618 

23 A. L. J. 888; A. L R. 1926 All. 20; 48 A. 17 
7 L. L. J. 466, \. L R. 1925 Lah 051. 

13 0. L. J. 243. 
^Lahore High Court. 

24 A L. J. 149; 48 A. 224; A. I. R. 1926 All 
304. 

A. I. R. 1926 Lah. 211. 

3 0. W. N. 105; A. I. R. 192,> Oudh 186 

7 L. L. J. 548; 6 L 536; A. I. R. 1926 Lah. 14. 

3 R. 275; A. I. R. 1925 Rang. 275. 

7 L. L. J. 448; A. 1. R. 1925 Lah. 639. 

*Lahore High Court. 

A. I. R. 1925 P. C. 257; 23 A L. J. 1045- (1926) 
M. W. N. 101; 7 P. L. T. 275; 23 L W 628 
P. C 

*Lahore High Court. 

L. R. 6 A. 213 Rev.; 23 A. L. J. 965; A I R 
1926 All. 113; 48 A. 104. ' ' 

A. I. R. 1926 Lah. 243. 

A. L R. 1925 P. C. 244; L. R. 6 A. (P C) 
180; 23 A. L. J. 1010; 48 M. 906; 49 M L J 
836; 43 C. L. J. 70; 28 Bom. L. R. 204; (1926) 
M. W. N. 22; 30 C. W. N. 434; 52 I. A. 310 

A. L R. 1926 Lah. 188. 

*Nagpur Judicial Commissioner's Court 

A. I. R. 1926 Lah. 231. 

A. L R. 1926 Lah. 175. 

"Calcutta High Court. 

"Lahore High Court, 



16 



INDIAN CASES. 



300 

305 
308 
009 
311 

313 
314 
310 
317 
319 
321 



Veerappa Chettiar v. Suiidaresa Sastrigal 

Tapiram v .T ,LM *::-'. 

Karjpinuui Rajayya v. Kalpatapu Anmumniumma .. 
Allahabad Bank, Ld. v Bha&waii Das Juhari 
Kajeswari Muthuramalinga v. Secretary of Stale ior 

India 

Sita Ram v Nanak Chaud 

MattapHlli VeiilviitarahiHni v Vuppu JSilarainayya .. 
Nanak Chaud v. Rani Pntvul 
Bishen Singh v. Wasawa Sin^h 
Ranzor Singh v. Secretary uf State lor Indi i 
Narasimhaiu v. Ch^udramiiia 



327 
330 
330 
332 
3.J2 
333 

33 1 
3 

338 



345 

316 
318 

350 

351 
352 
353 
354 
354 

335 
361 

364 
366 

367 
368 
358 

370 
371 
373 
374 
377 
378 
385 
387 
390 
392 
393 
394 
396 



Punjab Commercial Syndkato 

live Bank, Ltd. 
Baijxiath Singh v llari Pra^ad 



; unjab CVopera- 



49 M. L. J. 366; 48 M. 676; 22 L. W. 603; A I. 

R. 1925 Mad. 1201. 

21 N. L. K. 169; A. I R 1926 Nag. 209. 
21' L W S28, A I R. 192o Mad. 13 >. 
24 A. L J. 323; A. 1. R. 1926 All. 262. 

3(3 M. L. J 59; A. T. R. 1926 Mad. 341 
A. I K. 192(5 L h h 18:? 
i A. I. R 11)26 Mad. 305. 
A I R. 1926 All. 2SO 
A T. U. U2GLah. 17 /. 
* Lahore High Court. 

49 M. L. J. oi7; 22 L. W. 669; A. 1. R. 19^6 
Mad. 154. 



Tukaram v. Uhintaunn 

Alice Gcorgina Skinner v. Mii^arram Ali Khan 

Alapatl Raiuaswami v. Das.iri Veiikataran.iA ana 

Hhapf \vatl Suigh v. (1uivhnr,in DU!K J 

Dcirbari Mai-Ram S.ihai v Sc /ivtaiy of State 

NVrasimha Mudali v. Pntti N L u\iyunru-am' Chttty . 

Sakharam v Shoojam 
Kbazan Singh v. I'nirao Singh 

Maharaj Dhiraj uf Dai hlian^a v. Cuaimii.bionrr of 
Income Tax 

Venku Shettithi v. liamaHiaudiayra 
Yasin Bibi v. Munwar Hussabi 

Ji\va Ram v. Jhanda Singh 
Mahadeo Prabad v. Anaiidi Lai 

Badri Sahu v. Pearc Lai Mi^ra 

Haji RalimaUilUi v Secretary of Slate tor India .. 

Sinuaima Kono v. Muthupalani Chetti 

Sri Kishen v Chandra S?khar Baksh Siiifth 

K. Vcnkat Reddiar & Co. v. nesikuohanar 

Virappa Govindappa Konradcli v. Basappa Virabhad- 

rappa t . , 

Kaliani Anni v. Thirumalayappa Mudaliar 
Jotsing Harising Advaiii v. Secretary of State for 

India . . 

Nilkanth v. Oajanan 
Palauiappa Chettiar v. liujarajesvrai'a Sethupathi .... 

Leoh Moses v. Solomon Judali Meyer 

Ma Me Mya v. Ma Min Xan 

Chunilal Mokamdas Marwadi v. Christopher 

Nachiapjia Chettiar v. Mahomed Sabir Khan 

Jethanand Tekohand v. Secretary of State for India 

3inna Karuppan v. Muthiah Chettiar 

Rustom K. Sidhva v. Indian Merchants Association 

Sekkhu Mustabu v. Nani . . 

Ratilal v. Ruglmath Mulji 

Rudrappa v. Mariappa 

Yusif Mahbub & Co. y. Salloh Mahomod 

Chandayya Hegde v. Kaveri Hegadthi 

Sukhdeodas Ram Prosad v. Jaintilal Jamunadaa ... 

Satheppa Chettiar v. Muthusami Pillai 

Khiaras, R. P. v. Bhawanji Narsi 

Sultan Abdul Kadir r. Mohammad Ksuf 



j 6L. 512; A. L R H'26 Lnli PC. 
i A 1. R. 1924 Pat. G2S, (1921) Pat. 209; 
T. -"" 



P. .L, 



20 X. L. R. 17; A. I. R 1021 Na?. 01. 

L K. 5 A. 607 Civ ; A. 1. R. 1925 All. 77. 

(i:j-'5) M. \V. N. 7cSl, A 1. R. 1926 Mad. 128, 

i,. U 5 A. 617 Civ.; A. I. R. 1925 All. 96. 

6 L 4JU; A. 1 R P>26 Lah 116. 

22 L W. (J37; 49 M. L. J. 720; A. I. 17, 19l 7 6 

Mad 118. 

i'l N. L R. 181); A. I R 192d Na$. 229. 
A. 1. II 1J):>3 All 41; L. R. :> A. (509 C^iv. 

G P. L. T. :;.r>, "2 Pai. L R. 2ii Cr , (1925^ P:it. 

49, A. I R 19iT) Pat 313 
49 M. L. J. 034, 2J L. W 88,3; (1923) M W. N, 

86G; A. I. R. 1920 Mad 81; i9 M 29. 
22 A. L. J. 700; A. I. R. 1924 All. 799; -16 A. 

713; L R. 5 A 521 Civ. 
1 L. C. 43. 
17 A. 90; 22 A L. J. 837; L. R. 3 A. 749 Civ.; 

A.I. R 1925 All. 00. 
6 P. L, T. 859, A. 1 R. 1920 Pat, HO; (1926; Pat, 

i;>7. 

27 Bom. L. R. 1G07; A I. R. 1926 Bom, 50, 

A. I R. 192ft Mad. 378. 

*Allahabad High Couit. 

22 L. W. 190; A I R. 1923 Mad. 1279, 

27 Bom. L R. 1511; A. I, R. 1926 Bom, 139, 
*Madras High Court. 

A. 1. R. 1926 riind 130. 
A. 1. R. 1020 Kag. 248. 
22 L. W 58, M M. L. J. 34; A, L R. 1926 Mad. 

243; 49 M. 206. 
27 Bom. L. R. 14GO; A. 1. R. 1926 Bom, 139; 50 

B. 32. 
A. 1. R. 1925 Rang. 320; 3 R. 490; 4 Bar. L. J. 

159. 
27 Born. L. R. 1462; A. 1. R, 1926 Bom, 65; 50 B. 

107. 

A I. R. 1925 Rang. 303; 4 Bur. L. J. 135- 
*Sind Judicial Commissioner's Court. 

22 L. W. 816; A. I. R. 1926 Mad. 178. 
*Sind Judicial Commissioner's Court. 
A. I. R. 1926 Mad. 536. 

*Sirid Judicial Commissioner's Court. 

A. 1. R. 1926 Mad. 490. 

*Sind Judicial Commissioner's Court, 

49 M. L. J. 727: A. I. R. 1926 Mad. 189, 

A. I. R. 1926 Cal 697. 

A. 1. R. 1926 Mad. 537. 

A. I. R. 1926 Siud 8, 

23 L. W. 468, 



Vol. 92] 



INDIAN OASES. 



17 



398 

400 
401 
402 



403 
405 
411 
412 

414 
415 

416 

417 
410 
423 
424 
425 
426 

427 

428 
429 

430 
433 
439 
441 
442 

450 
451 
452 

453 
454 
456 
459 
460 

461 
462 
463 

465 
468 
470 

471 
472 

4T3 
474 
478 
479 
479 



Muthuvenkatarama Reddiar v. Official Receiver, 

South Arcot 

Subbiah Goundan r. Sonnimalia Goundan 
Ram Newaz v. Nankoo 
Chandra Mouleewara Prasada v. YadavalliJKames- 

wara 

Kanshi Ham v. Muhammad Abdul Rahman 
Guntur Narasimham r. Nyapati Narayanarao Garu .. 
Gopal Chandra Banerjee v. Bhutnath Sasmal 
Mahtlinga Naicker v. Vellaya Naicker 

Ram Kuer v. Govind Ram 

Thamaya Bangaruswami v. Thirunathasundra Dosa 



Gopalam Garu v, Adusumilly Gopalakriah- 
nayya 

Pohla v. Emperor 
Kishanchand v. Emperor 
Daya Ram v. Emperor 
Momoon v, Ibrahim 
Qaim Din v. Emperor 
Ram Sarup v. Emperor 

Gulabchand Rupji v. Emperor 

Kallu v. Emperor 
Champa Devi v. Pirbhu Lai 

Nga Wa Gyi v. Emperor ... 

Woodward v. Emperor 
Keramat Mandal v. Emperor 
Abdul Hafiz Khan v. Emperor 
Khijiruddin v. Emperor 

Ratan Mani v, Hans Ram 

Bhola v. Emperor 

Kadhori v. Emperor . . 

Keramat Mandal v. Emperor 

Banwari Lai v. Jhunka 

Thokala Seihamma v. Yellaturi Venkamma 

Madat Khan v. Emperor 

Bahadura v. Emperor 

Teja Singh v Emperor 
Ghandiram v. Emperor 
Chhida Y. Emperor 

Pakkir Mahamud v. Pichai Thevan ' 

Maqsud Ali v. Abdullah 

Neelam Venkataratanamma v. Vinjamoori Varaha ... 

Mulraj v. Indar Singh 

Venkatasubba Rao v Adinarayana Rao 

Maharaj Din v. Bhairon 
Sital Prasad Singh y. Jagdeo Singh 
Ram Nath Singh v. Gajadhar Lai 
Dhanpat Rai v. Kahan Singh 
Fateh Mahomed r, Mitha 



50 M. L. J. 90; 49 M. 227; A. I. R. 1926 Mad. 350. 

23 L. W. 87. 

A.I R. 1926 All. 283. 

(1925) M. W. N. 776; 22 L. W. 833; 50 M. L. J. 
97; A. L R. 1926 Mad. 157. 

6 L. L. J. 336; A. I. R. 1925 Lah. 216. 
22 L. W. 592; A. 1. B. 1926 Mad. 66. 
42 C. L. J. 520; A. I. R. 1926 Gal. 312. 

22 L. W. 794; (1925) M. W. N. 884; A. I. R. 1926 

Mad. 190. 

A. I. R. 1926 All. 62; 48 A. 145. 
(1925) M. W. N. 779; A. I. R. 1926 Mad. 135; 23 

L. W. 406. 

* Madras High Court. 

7 L. L. J. 442; 27 Cr. L. J. 241. 
27 Cr. L. J. 213. 

6 Ii. 489; 27 Cr. L. J. 247; A. I. R. 1926 Lah. 83. 
27 Cr. L. J. 248; A. I. R. 1926 Sind 143. 

7 L L. J. 223; 27 Cr. L. J. 249. 

24 A. L. J. 163; A. I. R. 1926 All. 122; 27 Cr. L. 
J. 250; 48 A. 230. 

27 Bom. L. R. 1039; A. I. R. 1925 Bom. 467; 49 

B. 799; 27 Cr. L. J. 251. 
27 Cr. L. J. 252; A. I. R. 1926 Lah. 240. 
27 Cr. L. J. 253; 24 A. L. J. 329; A. I. R. 1926 

All. 287. 
3 R. 55; A I. R. 1925 Rang. 219; 4 Bur. L. J. 23; 

27 Cr. L. J. 254 
A. I. R. 1925 Siud233; 18 S. L. R. 199; 27 Cr. L. 

J. 257. 
42 0. L. J. 524; 27 Cr. L. J. 263; A. I. R. 1926 

Cal. 320. 
L. R. 6 A. 203 Cr ; 24 A. L. J. 173; 27 Cr. L. J. 

265; A. L R. 1926 AIL 188. 
42 C. L J. 504; 27 Cr. L. J. 266; A. I. R. 1926 

Cal. 139; 53 C. 372. 
27 Cr. L. J. 274. 
27 Cr. L. J. 275. 
L. R. 6 A. 216 Cr.; 24 A. L. J. 162; 27 Cr. L. J. 

276; A. I. R. 1926 All. 193. 
42 C. L. J. 528; 27 Cr. L. J. 277; A. I. R. 1926 

Cal. 147. 
27 Cr. L. J. 278; 24 A. L. J. 217; A. I. R. 1926 

All. 229. 
22 L. W. 863; 27 Cr. L. J. 280; A. I. R. 1926 Mad. 

238. 
7 L. L. J. 628; 27 Cr. L. J. 283; A. I. R. 1926 

Lah. 221. 
24 A. L. J. 215; 27 Cr. L. J. 284; A. I. R. 1926 

All. 304. 

7L L. J. 631;27Cr. L. J. 285. 
27 Cr. L. J. 286. 
24 A. L. J. 178; 27 Cr. L J. 287; A. I. R. 1926 

All. 225. 

*Madras High Court. 

L. R. 6 A. 112 Civ.; A. I. R. 1925 All. 342. 
49 M. L. J. 756; (1926) M. W. N. 44; A. I. R. 

1926 Mad. 191. 

A. L R. 1926 All. 102; 48 A 150. 
22 L. W. 631; 50 M. L. J. 46; A. I. II. 1926 Mad. 

227. 

A. L R. 1926 All 290, 

4 Pat. 294; A. I. U. 1925 Pat. 577; 7 P. L. T. 415, 
A. I. R. 1926 All. 300. 
2 L. 0. 107 
'Lahore High Court. 



18 



INDIAN CASES, 



481 

482 
483 

484 
489 
491 
492 
493 
496 
497 

503 
504 

510 
M2 
514 
516 

517 



520 
522 
523 
f.24 
525 
526 

526 
527 
530 
531 
532 

533 

535 
537 



541 
542 
544 
545 
546 
548 

549 

549 

551 



553 
554 
555 
555 
556 
558 
559 

562 
563 
566 



Subramaniam Patter v. Vein Nair 

Durga Bai, In ihe matter of 

Narayanaswami Filial v, Gopalakrishna Naidu 

Bago v. Roehan Beg 

Ma Tok v. Ma Yin 

Asanalli Nagoor v. Mahadu Meera 

Gokul Das v. Nathu 

KalaGellav Sbivji 

Abdul Majid v. Wahidullah 

Official Receiver, Tanjore v. Nagaratna Mudaliar . 

Muhammad Ismail v. Vahiduddin 

Sankaralinga Mudaliar v. Official Receiver, Tinnevelly 

Radha Kiehun v. Kashi Nath 
Maung Set Khahig v. MaungTun Nyein 
Muhammad Ibrahim v Ram Chandra 
Vencatachariar v. Bontham Pachayappa Chetty 

Commissioner of Income-Tax, Bombay v. M. H. 
ttenjana & Co. 

Thirumalai Pillai v. Arunchella Padayaohi 

Ganga Dhar-Baij Nath v. U B. A C. T Ry. 

Shiva Aithala v. Rangappaya Aithuia 

ITnnaxnalai Animal v. Abboy Chetty 

Dignmbar, In re 

Peria Nambi Srinivnsachariar v. Kuna Ramasamy 

Naicker 

Aisban v. Municipal Committee, Lahore 
Gajanan Narayan Patkar v. Jivangiri Chamelgiri ... 
Kisan v. Jasodabai 
Ruldu Ram v. Surain Singh 
Bombay Baroda <& Central India Ry. v. Gulabbhai 

Bl >v.-K/}!S 

KalhaKKai v. Palani Koundan . 

Ganppt Rai v. Kani Ram-Munna Lai 
Vishvanath Shamba Naik v. Ramkrishna Nartoba 
Kasbekar 

Racharla Narayanappa v. Kondigi Bheemappa 
Balshet Muhadshet Yekawde v. Hari Baburao Rane 
Surendra Nath Das Gupta v. h'atyendra Nath 
Chandulal Maganlal v Motilal Harilal 
AtaHusainv Mustafa Hu sain 
G. I. P. Ry. Co. v. Chandulal Sheopratab 

Basant Rai Bhandari v. Saltk Ram 

Fulchand Mohaiilal v. Harilal Nansa [" t 

Batuk Nath v. Jugal Kishore 

Shri Goverdhanlalji Maharaj v. Shri Chandraprabha- 

vati 

Muhammad Ibrahim v. Yado 
Shidraj Bhojraj Desai v. Renaki Konda Mahar 
Ghissu v. Amir Ali Khan 
Devji Padamsey v. Thommadra Erikalappa 
Sivan Pillai v. Venkateswara Iyer 
Pancharn Lai v. Muhammad Yaqub 
Qamar Jahan Begam v. Munney Mirza 

T'ahilram Tarachand v. Vassumal Deumal 
Gobind Lai Dutt v. Official Assignee, Calcutta 
Subramania Iyer v. Shumnugam Chettiar 



567 Ram Saran Baa v. Girdhari Lai 



TT."-" **"-' '- "" - ' 



49 M. L. J. 717; 22 L. W. 749; (1926) M. W. N. 

36; A. I. R. 1926 Mad. 249. 
24 A L J 310 A. I R. 1926 All. 301. 
(1H25) M. W. N. 780; 22 L W. 618; A. I. R. 1926 

Mad. J 12; 50 M L. J. 48. 
*Lahore High Court. 
3 R. 77; A 1. R. 1925 Rang 228. 
22 L. W. 820: A. I R. 1926 Mad. 259. 
24 A.L. J. 291. 

*8ind Judicial Commissi oner's Court. 
A. I. R. 1926 All. 284. 
49 M. L. J. 643; (1925) M. W. N. 907; A. I. R. 

1926 Mad. 194. 

24 A. L. J. 311; A. I. R. 1926 All. 270. 
49 M. L. J. 616; (1925) M. W. N. 832; A, I. R. 

1926 Mad. 72. 

24 A. L. J. 241; A. I. R. 1926 All. 266. 
A. I. R. 1925 Rang. 221; 4 Bur. L. J. 69; 3 R. 82. 
24 A. L J. 244; A. I. R. 1926 All. 289. 

22 L. W. 698; (1926) M. W. N. 106; A. I. R. 1926 
Mad. 250. 

27 Bom. L. R. 1471; A. I. R. 1926 Bom. 129; 30 

B. 87. 

A. I. R. 1926 Mad. 540. 
24 A. L. J. 328. 
49 M. L. J 7J9; A. I. R. 1926 Mad. 233. 

23 L. W. lf>8; 50 M. L. J. 172. 
A. I. R, 1926 Nag. 306. 

A. I. R. 1926 Mad. 509. 

"Lahore High Court 

27 Bom. L. R 1405; A. I. R. 1926 Bom, 131. 

A-I. R. 1925 Nag. 298. 

7 L. L. J. 618; A. I. R. 1926 Lab. 120. 

A.I. R. 1926 All. 296. 

23 L. W. 227; 50 M L. J. 2fO; (1926) M. W. X. 
245; A. I. R. 1926 Mad 412. 

24 A. L, J. 283; A, I. R 192(5 All. 293. 

27 Bom. L. R, 1478; A.I. R 1926 Bom. 86; 50 B. 

94. 

A. I. R. 1926 Mad, 494. 
27 Bom. L. f . 1487; A. I. R. 1926 Bom. 119. 
"Calcutta High Court. 
27 Bom. L. R 1492; A. I. R. 1926 Bom. 43. 
"Allahabad High Court. 
27 Bom L. R. 1500; A, I. R. 1926 Bom. 138; 

50 B. 84 

A. I. R. 1920 Oudh 288. 
27 Bom. L. R. 1503; A. I. R. 1926 Bom. 69; 50 

B. 124. 
24 A. L. J. 281; A. I. R. 1926 All. 285. 

27 Bom. L. R. 1496; A. I. fc. 1926 Bom. 136. 

A. I R. 1926 Nag, 238. 

27 Bom. L. R. 145*0; A. I. R. 1926 Bom. 140. 

"Allahabad High Court. 

27 Bom. L. R. 149,4; A. I, R. 1926 Bom. 63. 

22 L. W. 796; A. J. R. 1926 Mad. 130. 

24 A. L. J. 313; A*I. R. 1926 All. 294. 

12 0. L J. 313, 2 V 0. W.S. 413; A. I. R. 19J5 

Oudh 613. * 
A. I. R. 1926 Sind 119. 
29 C. W. N. 163; A I. R. 1925 Cal 291. 
41) M. L. J. 363; 32 L. W 533; A. I. R. 1026 

Mad. 65. 
24 A. L. J, 286; A. I, R. 1926 All, 305, 



Vol. 92] 



INDIAN CA8BS, 



569 
570 

571 
573 

575 
577 

584 
581 
587 
588 

588 
589 
590 
590 

591 
591 

593 
593 

591 



595 
597 

597 
599 

600 
601 
602 
603 



603 
608 
610 

612 
615 



616 
617 

620 
621 
621 

622 
624 

626 
626 



Bulli Mai v. Jhabba 

Tulasidass Govindjee v. Madharadass Lalajee 

Atma Ram v. Nanak Chand 

Chi Mammal v. Ponnuaami Naicker 

Parumal Thawerdas v. Makhan 
Ram Karan v. Emperor 

Khamani v. Emperor 
Indar Singh v. Emperor 
Wasal v. Emperor 
Kashi Prasad v. Emperor 

Emperor v. Gulab 

Krishna Gopal v. Emperor 

L. A. Morrison v. H M. Crowder ... 

Emperor v. Ghulam Mohammad 

Emperor v. Kesar 
Kalap Nath v. Emperor 

Bashirulla Bhiriyav. Meajan 

Tadepalli Subba Rao v. Motamari Lakshmi- 

narayana 
Gonnabathula Thammayya v. Gonnabathula Chin- 

nayya 

Munshi Ram v. Bhagwan Das 

Muhammad Mohideen Maracayar v, Ramanadhan 

Chettiar 

Nand Ram v. Tshar 
Chockaliugam Pillai v. Pichappa Chettiar 

Mumtaz Ali v. Allah Banda 
Adam Sardar v. Bisweswar Das 
Municipal Committee, Ferozepore v. Milkhi Ram ... 
Muthu Veerappa Chettiar v. U. K. Sivagurunatha 
Pillai 

Bengal North- Western Ry. v. Bansi Dhar 

Lalman v. Shiam Singh 

Municipal Council, Tuticorin v. Shunmugha Moopanar 

Ganga Bakhsh Singh v. Maula Bux Singh 
Vadapalli Varadacharyulu v, Khandavilli Narasimha- 
chary ulu 

Chandra Kumar Guha v. Elahi Buksha 
Jitendra Nath Chatterjee v. Jasoda Sahun 

Abdul Rahiman Sahib & Co. v. Shaw Wallace A 

Co. 
Langley Billimoria & Co. v. Lakhmichand-Gopal- 

Das 
Kaliba Sahib v. Subbaraya Ayyar 

Chandrabhan Prakashnath v. E. I. Ry. Co. 
Tiruvangalath Nellyoton Paidal Nayab, In re 

Hitendra Singh v, Maharajdhiraj of Darbhanga ... 

Alella Kesavaramayya T. Visawsetti Venkatanara- 
simha 



A. I. R. 1025 Lah. 504; 7 L. L. J, 280. 

22 L. W. 642; (1926; M. W. N, 68; A. L R. 1928 
Mad. 148. 

A I. R. 1926 All. 274. 

23 L. W. 94; (1926) M. W. N, 121 A 172; 50 M. 
L, J. 180; A. I R. 1926 Mad. 363. 

A. I. K. I02'l Bind 113. 

9 L. L J. 371; A. 1 R. 1925 Lah. 483; 2 L. C. 

197; 27 Cr. L. J. 289. 
L. R. 6 A. 207 Cr.; 24 A. L. J. 171; 27 Cr. L, J. 

296; A. I. R. 1926 All. 306. 
27 Cr. L. J. 297; 24 A. L. J. 270; A. I, R. 1926 

All. 302. 
A. I. R. 1925 Lah. 495; 7 L. L. J. 277; 27 Cr. L. 

J. 299. 

24 A. L. J. 161; A. I. R, 1926 All. HI; 27 Cr, L. 
J. 300. 

27 Or. L. J. 300. 

27 Cr. L. J. 301. 

27 Cr. L. J. 305. 

A. I. R. 1925 Lah. 510; 7 L. L. J. 331; 27 Cr. L. 

J. 302. 
27 Cr. L. J. 303; 24 A. L. J. 228; A. I. R. 1926 

All. 226. 
27 Cr. L. J. 303; 24 A. L. J. 292; A. I. R. 1926 

All. 288. 
A. I. R. 1926 Cal. 690. 

22 L. W. 389; A. I. R. 1925 Mad. 1214. 

22 L. W. 752; (1926) M. W. N. 38; A. I. R. 1926 

Mad. 282. 
7 L. L. J. 596; A. L R. 1926 Lah. 152. 



22 L. W. 872; A. I R. 1926 Mad. 217. 
7 L L J. 600; A. T. R. 1926 Lah. 12*. 
22 L. W. 579; (J925) M. W. N. 602; A. I. R. 

Mad 155. 

'Allahabad High Court. 
A. I. R 1926 Cal. 6*4. 
A. I. R. 1925 Ltth. 505; 7 L. L. J. 358. 



22 L W. 617; 49 M. L. /. 697; a92(tt M. W. N. 
63; A.I R. 1926 Mad. 133; 49 M. 217. 

3 O. W. N 145; A. 1. R. 1926 Oudh 218. 

24 A. L J 288; A. I R 1926 All. 291. 

(1925) M. W. N. F80; 23 L. W. 31; A. 1. R. 1926 

Mad. 251; 49 M. 219. 
13 O. L. J. 132. 

(1925) M. W. N. 886; 23 L. W. 85; A. I. R. 19J6 

Mad. 258. 

A. I. R. 1926 Cal. 667. 
(1925) Pat. 353; A. I. R. 1926 Pat. 122; 7 P. L 

T. 299. 

21 L. W. 516; A. I. R. 1925 Mad. 736. 

*8ind Judicial Commissioner's Court 

23 L. W. 99; (1926) M. W. N. 123 A 175; A. I. R. 
1926 Mad. 365. 

24 A. L. J. 305; A I R. 1926 All. 299. 

22 L. W. (191; 1626 M. W. N. 169; A. I. R. 1926 
Mad. 225. 

(1925) Pat. 359; A. I. R. 1926 Pat. 147; 7 P. L 
T. 392. 

(1926) M. W. N. 141: 50 M L. J. 3C; 23 L. W. 
678; A, I. R. 1926 Mad. 452, 



INDIAN OASES, 



[1926 



128 
629 
631 
633 



637 

640 
64* 
646 
651 
53 

56 
657 
661 

663 
665 
667 
667 
669 
670 
672 
673 
674 
675 

677 
678 
679 
681 



681 
683 

684 
685 

687 
688 
689 

693 
694 
695 

697 

697 
702 

703 
705 
708 
709 

709 



713 
714 



Vishvanathbhat Annabhat v. Mallappa Ningappa .., 
Bhatu Ram Modi v, Fogal Ram ' , . 

Arunchellam Chettiar v. U To Lu 
Ram Protap Chamria v. Durga Prosad Ohaniria 



Ram Shankar Singh v. Lai Bahadur Singh 

Gopilal Bhawaniram v. Pandurang 

Muhammad Zakaria v. Kishun Narain 

Shankar v. Pandurang 

Lai Ohand v. Huns Kumar 

Mahadeva Iyer v. Ramkrishna Reddiar 

Ahmun Zaida v. Gurdas Ram %%( 

Sartaj Koer v. Mahadeo Bux 

Koyyalamudi Chinnayya v. Koyyalamudi Mang- 
amma , 

Narayan v. Dhudabai 
Sarda Bux Singh v. Kandhia Bux 
Maung Po Seik v. U Nandiya 
Moolji Murarji Sunderji v. Pinto 
Roshan Lai v. Rustomji 
Indarpal Singh v. Kalloo 
Addepalli Kondayya v. Yandru Vecranna 
Gauri Shankar v. Decruze 

Firm Bihari Lal-Jai Narayan v. liar Narain Das ... 
Raisun Nisa v. Zorawar Sah 

M. S. S. Ohettyar Firm v. Ma Tin Tin 
Gopal v. Krishnarao ttt 

Kidar Nath v. Bhikham Singh 
Bhupendra Narayan Singh Bahadur v. Madar Bakhsh 
Sheikh 

Chandrika Prasad v. Nazir Husain 
Indal v. Debi 

Balaram Manjhi v. -1 :L r :ii\--' t \- ] \ Manjhi 
Mahadeo Prasad v. K,:;:i I':.;:i 

Suggusctty Subbayyav. Irugulopati Gangayya 

Maung Han v. Ko Oh 

Emperor v. Manant K. Mehta . 

Emperor v. Mathro 

Beni Ram v. Emperor 

Kannammal, In re \\\ 

Babu v. Emperor 

B. N. Ry. Co. v. Makbul 

Maung Tun v. Emperor Ml 

Shaikh Kariin v. Emperor 

Radha Kishen-Ohuni Lai v. Ahsa Mal-Ishar Dai ... 

Mansaram v. Budhu 

Mahfab Shah v. All Haidar Shah ] '. \ 

Trustees, Parakkat Devaswom v. Venkatachalam 
Vadhayar 

Raghunath Dai-Ram Sarup v. Sulzer Bruderer & 
Co. Mt 

Ttramonee Ohoudhurani v. Sheikh Elim 



27 Bom. L. R. 1103; 49 B. 821; A. I. R. 1925 

Bom. 514. 
(1925) Pat. 357; 5 Pat. 223; A. I. R. 1926 Pat 

141; 7 P. L. T. 340. 
4 Bur. L. J. 91; A. I. R. 1925 Rang. 26fl; 3 R 

318. 
3 O. W. N. 127; A. I, R. 1925 P. 0. 293; 49 

M. L. J. 812; 43 C. L. J. 14; 24 A. L. J. 13; 

(1926) M. W. N. 96; 3 Pat. L. R. 330; 28 

Bom. L. R. 217; 53 C. 258. P. C. 
3 0. W. N. 267; A. I. R. 1926 Oudh 2?7; 13 O. 

L. J. J16. 

A. I. R. 1926 Nag. 241. 
A. I. R. 1926 All. 268. 
9 N. L J. 22 

7 L. L. J. 50; A. I. R. 1926 Lah. 108; 7 L. 55 
23 L. W. 199; 50 M. L. J. 67; A. I. R. 1926 Mad. 

114; (1925) M. W. N. 707. 
A. I. R. 1926 Lah. 225. 
A. I. R. 1926 Oudh 332. 

*Madras High Court. 

21 N. L. R. 38; A. I. R. 1925 Nag. 299. 

*Oudh Chief Court. 

A. I. R. 1925 Rang. 374; 4 Bur. L. J. 178. 

*Sind Judicial Commissioner's Cour. 

A. I. R. 1926 Lah. 249. 

*Oudh Chief Court. 

A. I. R. 1926 Mad. 543. 

3 O. W. N. 378. 

*Lahore High Court. 

3 0. W. N. 121; 13 0. L. J. 10; A. I. R. 1926 

Oudh 228. 

A. I. R. 1925 Rang. 349; 4 Bur. L. J. 179. 
*Nagpur Judicial Commissioner's Court. 
*0udh Chief Court. 



A. I. R. 1925 P. C. 297; 23 L. W. 9; 52 I. A. 

439; 53 C. 1 P. C. 
A. I. R. 1926 Oudh 306. 
A. I. R. 1926 Nag. 174. 
A. I. R. 1925 Pat. 760. 
3 0. W. N. 186; 13 0. L. J. 55; A. I. R. 1926 

Oudh 258. 

22 L. W. 827; A. I. R. 1926 Mad. 183. 
A. I. R. 1925 Rang. 366; 4 Bur. L. J. 180. 

~ Bom L. R. 1343; 49 B. 892; A. I. R. 1926 

Bom. 110; 27 Cr. L. J. 305. 
27 Cr. L. J. 309; A. I, R. 1926 Sind 101. 
27 Cr. L. J. 310; A. I. R. 1926 All. 237. 

23 L. W. 384; 27 Cr. L. J. 311 A. L R. 1926 
Mad. 570. 

24 A. L. J. 280; 27 Cr. L. J. 313; A. I. R. 1926 
All 276. 

A. I. R. 1925 Pat. 755; (1926) Pat. 74; 27 Cr. L, 

J. 313; 7 P. L. T. 343. 
A. I. R 1925 Rang. 353; 4 Bur. L. J. 172; 27 

Cr. L. J. 318. 

27 Cr. L. J. 319; A. I. R. 1926 Nag. 279. 
7L L. J.603; A. I. R. 1926 Lah. 91. 
A. I. R. 1926 Nag. 289. 

6 L. 338; A. 1. R. 1925 Lah. 429; 7 L. L. J 
190. 

21 L. W. 22; 50 M. L. J. 153; A. I. R. 1926 Mad. 
321. 

7 L. L, J. 611; 7 L, 42; A. I. R. 1926 Lah. 125. 
A. I. R. 1926 Cal. 582. 



Vol.92J 



INDIAN CASES. 



21' 



715 
719 
720 

721 
722 
723 
724 
725 
726 

727 
730 
731 

732 
735 
736 
737 

741 
742 
743 
744 

746 

747 
748 
749 
750 

750 
752 

753 

757 
759 
760 



76* 
764 
765 
766 
768 
769 
770 
771 
772 
775 
771 

777 
779 
780 
782 

785 
786 
787 
790 



791 
792 
796 



May appa Ghettiar v. Kolandaivelu Ohettiar 

Maung Mya Din v. Maung Ye Gyi 

Mulugu Chengayya v. Aruvelu Devasanambagaru ... 

Thakar Singh v. Indar Singh 

Shankar Baksh v. Taluqdei 

Bantu v. Lehna Das 

Komarasami Ohetti v. Sundar Mudaliar 

Buta r. Ghulam Muhammad 

Bohisetti Mamayya v. Official Receiver, Guntur 

Baikuntha Nath Kar v. Adhar Chandra Pain 
Pothi Annapurnayya T. Pothi Nagaratnamma 
Nihal Singh T. Secretary, Gurdawara Guru Tegh 

Bahadur 

Ohandoo r. Murlidhar 
Ghandrabhaga Bai v. Bakaram 
Mg. Po Ki T. Mg. Po Oh 
McDonnell v. Emperor 

Narain Da* v. Emperor 
Jeomal v. Emperor 
Emperor v. Daulat Singh 
Parakh v. Emperor 

Chiragh Din v. Emperor 

Rukmtni Ammal v. Muthuswami Reddi 

Sictik v. Emperor 

Diwan Chand v. Emperor 

Kaliappa Goundan v. Maniam Sellappa Goundan .. 

Nazar Shah v. Emperor 
Ah Khaung v. Emperor 

Thanappa Chetty v. Esuf Khan Sahib 
Ram Pher Singh v. Sheo Saran Singh 
Noor Din v. Sulakhau Mai 

Firm of R. B. Bansilal Abirchand v. Ghulam Mahbub 
Khan 



Ladha Singh v. Sundar Singh 

Prabhudayal r. Lalta Das 

Municipal Committee, Taran Taran v. Mul Raj 

Mahomed Siddiq v. Li Kan Shoo 

Lallu Singh T. Gur Narain 

Abdul Qadir T. Ilahi Bakhsh 

Ayyaru Pillai v. Varadaraja Pillai 

Savareie T. Wakf Estate of Ismail Ahmed_Mada ... 

Shib Nnrain r. Gajadhar 

Ma She we U T. Ma Shin 

Thirumalachtriar v. Athimoola Karay alor 

Mtung San Pwe v. Hamadanee 

Taj Mohammad v. Farid Khan 

Shakur, M. A. v. Municipal Corporation, Rangoon . . 

Pattamayya v. Pattayya 

Sheikh Badal v. Abdul Rahim 
Chan Eliiam v. Neo Thein Theong 
Kallu Mai v. Partab Singh 

Kannuri Venkata Siva Rao v. Chittoori Rama Krish- 
nayya 

Abdul Qadir v. Ilahi Bakhsh ,.. 

Ramakka v. Negasam . 

Marotrao v. Municipal Committee, Nagpur 



"Madras High Court. 

A. 1. R. 1925 Rang. 350; 4= Bur. L. J. 136. 

50 M. L. J, 145; 2.3 L. W. 390; (1926) M. W. N. 

289; A. L R 1926 Mad. 406, 
*Lahore High Court. 
3 O. W. N. 375. 
"Lahore High Court. 
23 L. W. 212. 
A. 1. R. 1926 Lah. 247. 

23 L. W. 10; (1926) M. W. N. 124; A. I. R. 1926 
Mad. 338. 

A. I. R. 1926 Cal. 653. 
A. I. R. 1926 Mad. 591. 

A. I. R. 1926 Lah. 228. 

13 O. L. J. 138; A. I. R. 1926 Oudh 311. 

A. I. R. 1926 Nag. 276. 

A. I. R. 1925 Rang. 373; 4 Bur. L. J. 160. 

A. I. R. 1925 Rang. 345; 4 Bur. L. J. 147; I R. 

524; 27 Cr. L. J. 321. 
27 Cr. L. J. 325. 
27 Cr. L. J. 326. 

24 A. L. J. 221; 27 Cr. L. J. 327. 

3 O. W. N. 160; A. I R. 1926 Oudh 202; 27 Cr. 
L. J. 328. 

7L.L. J.621; 27 Cr. L. J. 330. 

50 M. L. J. 94; 27 Cr. L. J. 331. 

27 Cr. L. J. 332. 

27 Cr. L. J. 333; A. I. R. 1926 Lah, 227. 

23 L W. 101; A. I. R! 1926 Mad. 296; 27 Cr. L. 

J. 334. 
27 Cr. L. J. 334. 

4 Bur. L. J. 143; A. I. R. 1925 Rang. 363; 27 Cr. 
L. J. 336. 

23 L. W. 36. 

3 O. W. N. 133; A I. R. 1926 Oudh 196. 
A. I. R. 1926 Lah. 230. 

A. I. R. 1925 P. C. 290; 49 M. L. J. 806; 43 C. L. 
J. 1; 23 L. W. 3, 24 A. L J. 48- (1926) M. W. 
N. 108; 28 Bom. L. R. 211; 53 C. 88; 30 C. W. 
N. 577 P, C. 

* Lahore High Court. 
A. I. R. 1926 Oudh 293. 

* Lahore Hi#h Court. 

A I. R 1925 Rang 372; 4 Bur. L. J. 154 

*Allahabad High Court. 

A. L R. 1926 Lah. 251. 

50 M L. J 116; A. L R. 1926 Mad. 431. 

A. I. R. 1925 Rang 376; 4 Bur. L. J. 157. 

24 A L. J. 260. 

A I. R. 1925 Rang. 381; 4 Bur. L. J. 146. 

22 L. W. 695; (1926) M. W. N 112; A. I. R. 1926 

Mad. 256. 

A, I. R. 1925 Rang. 382; 4 Bur. L. J. 166. 
"Lahore High Court. 
A. L R. 1925 Rang. 367; 4 Bur. I'. J. 161. 
50 M. L. J 215; (1926) M. W. N. 262; A. I R. 1926 

Mad. 453. 

A. L R. 1926 Nag 273. 
A. I. R. 1925 Rang. 361; 4 Bur. L. J. 138 
A. I. R, 1926 Oudh 301. 

(1925) M. W. N. 874; 23 L. W. 103; 50 M. L. J. 

148; A.I. R. 1926 Mad. 2 16. 
"Lahore High Court. 

47 M. 800; 48 M. L. J. 89; A. L R. 1925 Mad. 145, 
A. I. R. 1926 Nag. 281. 



INt>IAN CASfcS. 



800 



802 



805 
810 
813 
814 

818 
819 
822 
823 



824 
825 



812 
833 

838 
830 
840 
841 
843 
844 

845 
846 
847 

640 

650 
851 

854 

855 
855 

* 

862 
863 
865 

870 
871 

873 



674 

S82 

883 

885 
897 
869 



Kommareddi Ramachandrayya v. Vodury Venkata- 
ratnani 



Venkata Narasimha Rao 
yana 



v. Hemadu Suryanara- 



Ramchandra v. Lakshmtn 

Koyyalamudi Subbanna v. Koudri Subbarayudu ... 

Vinayak v. Kaniram 

Ram Bhaj v. Duni Chand 

Chintalapati Futchi Seetayya Garu v. (Jollavilli 

Appadu 

Barkoo v. Atmaram 

Veeraswami Pillai v. Chidambaram Chettiar . . 

Dawlat v. Kashirao 
Ramasami Goundan v. Alagia Singaperumal Kada- 

vul 

Thakur Singh v. Sonkuar . . 

Sukhdeo v. Ram Dulari 

Vehmlapalli Seetharamamma v. Maganli Appiah .. 
Bajrang Bali v. Mahrajia . . 

Subramania Aiyar v. Krishna Iyer . . 

Meenakshisundara Nachiar v. Vcerappa Chtttiar 
Umrao Singh v. Bcni Prashacl-M eh r Ohand 
MuhammacT Afzal v. Muhamn ad Mahmud 
Chimashani v. Venkatrao 
Aswap Ali Bepari v. Dula Mia 
Kommineni Appalaswamy v. Kommineni Simhadri 

Appadu 

SattiBhusan Mallick v. Sndananda Mallick 
Swaminptha Odayar v. Thiagarajaswami Odayar ... 
Naraj anaswami lyengar v. Thip^ayya 

Fmperor v. $ga Tun Maung 

Imam AH v. Emperor 

Local Government v. Doma Kunbi 

Emperor v. Maung Than Gyaung 

Vaithi Matharan v. Narayanaswami Iyer 
Dwarka v. Emt 



Ishwar Das v. 



>ror 
peror 



Jalal Uddin v. Emperor 

Kandasami Chetty, In re 

Mulai Rai v. Emperor 

A jo Mian v. Emperor , M 

Masala v. Emperor 

Jeobaran Singh v. Ramkishun Lai . 

A lam path Kriehnan v. Municipal Prosecutor, Cunna 
nore 

Badri Choudhry v, Emperor 

SUm Charan v. Emperor 

Chamari Singh Y. Public Prosecutor of Gays . 

Parmeshar Lall v. Emperor 4 .. 

Abdul Bari Mallick v. Emperor 4 

Mul Chand v. Emperor ^ 



22 L. W. 582; (1925) M. W. N. 604; A. I. R. 1926 
Mad. 153. 

50 M. L. J. 75; 2,3 L. W. 409; A. I. R. 1926 Mad. 

325. 

9 N. L. J. 3; A. I. R. 1926 Nag. 298. 
50 M. L. J. 1 % 25; A. I. R. 1926 Mad. 390. 
A. I. R. 1926 Nag, 293. 
A. I. R. 1926 Lati. 240. 

A. I. R. 1926 Mad. 526. 

*Nagpur Judicial Commissioner's Court. 

*Madras High Court. 

A. I. R. 192(5 Nag 280. 

22 L. W. 701; (1926) M. \V. N. 117; 50 M. L. J. 
42; A. I. R. 1926 Mad. 280 

*Nagpur Judicial Commissioner's Court. 
A. 1. R. 1926 Oudh 313. 

23 L. W. 285; (1926) M. W. N. 238; A I. P. 19?6 
Mad. 457. 

*0udh Chief Court 

(1925) M. W. N. 87; A. J. R. 1926 Mad. 211. 
(1926)M.W. N.4. 

*Lahore High Court. 

'J4 A. L. J. 307. 

8 N. L. J. 135; A. I. R. 1C2G Nag. 79. 

A. L R. 1926 Cal. 580. 

23 L. W.29; A. L R. 1926 Mad. 384. 

"Calcutta High Court. 

23 L. W. 26; (1926; M. W. N. 140. 

(1926) M. W. N. 1; 23 L. W. 382; A. 1. R. 1026 
Mad. 366. 

A- L K- 1925 Rang. 362; 4 Bur. L. J. 169. 27 Cr. 

L. J. 337. 

27 Cr. L. J. 338; A. L R. 1926 Lah. 212. 
27 Cr. L. J. 339. 
A. I. R. 1925 Rang 375; 4 Bur. L. J. 145; 3 R. 

514; 27 Cr. L. J. 342. 

22 L. \V. 673; A. I. R. 1926 Mad. 210; 27 Cr. L. 
L. J. 343. 

27 Cr. L. J. 343. 

27 Cr. L. J. 344; A. I. R. 1926 Oudh 2SO. 

24 A. L. J. 230; 27 Cr. L. J. 345; A. 1. R. 1926 
All. 271. 

50 M. L. J. 44; (1926) M. W. N. 146; 27 Cr. L. J. 

350; A. I. R. 1926 Mad. 346. 
24 A. L J. 314; 27 Cr. L. J. 351; A. 1. R. 

1926 All. 277. 
6 P. L. T. 626; A, I. R. 1925 Pat. 696; 27 Cr, L. 

J. 353, 

27 Cr, L. J. 358, 
4 Pat, 503; A, I, R. 1925 Pat. 623; 27 Cr. L. J. 

359. 

23 L. W. 413; 27 Cr. L. J. 361; A. I. R. 1626 
Mad, 430. 

6 P. L. T. 620; A. I. R. 1926 Pat. 20; 27 Cr. L 
J. 362. 

24 A. L. J. 317; 27 Cr, L. J. 370. 

4 Pat. 484; A. I, R. 1925 Pat, 677; 27 Cr. L. J, 

371; 7 P. L. T. 372. 
4 Pat. 472; A. I. R. 1925 Pat. 678; 27 Cr. L. J. 

373. 
42 C. L J 585; A. I. R. 1926 Cal. 157; 27 Cr. L. 

J. 375; 30 0. W. N. 644 
27 Cr. L. J. 377; A. I. R. 1926 Lah. 250. 



Vol 92J 



INDIAN CASE& 



889 

890 
892 
894 



895 
895 
897 

897 
898 
81)9 

899 
900 

90; 

903 

903 

906 

90S 

JH) 

1)1 

915 

916 
918 
923 
928 

940 
913 



016 
947 
948 
949 
950 
980 
961 
962 



063 



073 



076 
077 

080 
981 
982 
984 



000 
091 
003 



Mustaqhuuddin v. Emperor 

Arshed All v Emperor 
Rmperor v. Tej Ram 
Lalit Kumar Ssn v. Emperor 

Mughees-ud-din v. Empsror 

Puran v. Emperor 

Venugop. 1 Nayudu, In re 

Durga Prosad Lahiri Choudhuri v. Ratan Mahommed 

Sarkar 

Wilayati Begam v Jhandu Mal-Mithu Lai 
Bhagwandas-Paras Kam v. Jado Nath 
Prayaga Doss Jeevaru v. Padiella Doraiswaini lyen- 

gar 

Baikuntha Nath D.3 v. Shaik Hiri 
Bibi Khodaijatul Kobra v. Harihar Misser 

Khurshed Meerza v. Faizuddia Ali 

Kudan Singh v . Kalka Singh 

Abdul Wahed Khan v. Tamijannsssa Bibi 

Jang Bahadur v. Jagat Narain 

Siteswar Roy v. Tepua bornidn 

Anandrao v. Daulat 

Khurshid B?gam v. Abdul Rashid 

Guduthuru Thimmappa v. Baiakrislma Mudaliar . . 

Barati v. Surit 

Mahammad Raza Sahab Belgami v. Sadasiva Rao . . 
GauraTelin v. Shriram Bhoyer 
Ayiswaryaiiandaji Saheb v. Sivvaji Raja Saheb 

Sripati Dutta v. Bibhuti Bhusan Dutta 
Commissioner of Income Tax, Madras v. Messrs, King 
& Partrige 

Stisil Chandra Guha v. Gouri Sundari Devi 
Relu Mai v. Ahumad 
Dhana Mohammad v. NasLulla Molla 
Lachhman Singh v. Ram Das 
Dost Muhammad v. Kadar Batohu 
Faziar Rahman v. Abdul Hamad 
Bangahi Badan Haldar v. Ratan 
Manepalli Satanarayanamurthi v. Thommandra Eri 
kalappa 

Gopal Chandra Das v. Satya Bhanu Ghoshal 
Allah Bakhsk v. Municipal Committee, Rohtak 
Veeranan Ambalam v, Ayyachi Ambalam 



Addepalli 
Ramiah 



Venkata Garunadha v. Akella Kesava 



Seetharama Naidu v Govindasami Chettiar 
Nidavolu Atchutam v. Ratnaji 

Narain Das v. Saraj Din 

[swor Sant v. Torendra Nath Kuila 

EJhagat Singh v. Mathra 

Umasasi Debi v, Akrur Chandra Mazumdar 

Arshad Ali v. Zorawar Singh 

Kuthalinga Mudaliar v. Shanmuga Mudaliar 

Kala Khan v. Nathu Khan 
Puran Chand v. Emperor 
Q. I, P, Railway v. Kunj Behari Lai 



24 A. L. J. 327; 27 Or. L. J. 377; A. I. R. 1926 

All. 297. 

30 C W N. IGfi: 27 Cr. L. J. 378. 
27 Or. L. J. 380. 
42 C. L. J. 551; A. I. R. 1926 Cal. 174; 27 Cr. L, 

J. 382. 

27 Cr. L J. 382: A. I. R. 1926 Lah. 256. 
27 Cr. L. J 383; A. I. R. 1926 All. 2)8. 
27 Cr. L. J. 381. 

* Calcutta High Court. 

24 A. L. J 319; A. I. R. 1926 All. 286. 
A. I. R. 1926 Lah. 230. 

23 L. W. 520. 

A. I. R 1928 Cal. 592. 

4 Pat. 683, 7 P. L. T. 333; A. I. R. 1926 Pat. 

209. 

"Calcutta High Court, 
A. I. R 1926 Oudh 309. 
AIR. 1026 Cal 679 
A. I. R. 1926 Oudh 318. 
A. I. R. 1926 Cal. 580 

22 N. L. R 37; A I. R. 1926 Nag. 274. 
9 N. L J. 11; A I. R 1926 Nag. 231. 

23 L W. 361; 50 M. L J. 298; A. I. R. 1926 
Mad 427. 

A. I. K. 1920 Nag 277. 

49 M. 49; A I R. 1926 Mad. 297. 
A. I. R. 192fi Nag. 265 

A. 1. R. 1926 Mad. 84; 49 M. L. J. 568; 49 M. 

110. 
53 C, 319; A. I. R, 1926 Cal. 593. 

50 M, L, J. 176; 49 M, 296; A, I, R 1926 Mad. 
368. 

* Calcutta High Court 

7 L 17; A I. R. 1^26 Lull. 183. 
A. I. R. 11)26 Cal. 637. 

* Lahore High Court. 

23 L. W. 240; A I R. 1926 Mad. 466. 
^Calcutta High Court, 

* Calcutta High Court. 

50 M. L. J. 150; 23 L. W. 396; (1926) M, W. N 

282; A. I. R 1926 Mad. 410. 
A. I. R. 1926 Cal. 634. 
A. I. R. 1926 Lah. 223. 

22 L. W. 772; (1925) M. W. N. 857; 49 M. L, J. 
791; A, I.R. 1926 Mad. 168. 

50 M. L. J. 54; 23 L. \V. 314; (1926) M. W N, 
149; A.I. R 1926 Mad 417. 

23 L. W. 149; (1926) M. W. N. 162; A. I. R 1926 
Mad. 352. 

23 L \V. 193; 50 M. L. J. 208; (1926) M. W N. 

258; 49 M. 211; A. I. R. 1926 Mad. 323. 
A I. R. 1926 Lah. 238. 
42 O. L J. 560; A. I. R 1926 Cal. 163. 
"Lahore High Court. 
30 n W. N. 160; A. I. H. 1926 Cal. 542; 53 C. 

297. 

8 L. L J. 60, 
50 M. T, J. 234; 23 L. W. S73; (1926) M. W, N, 

274; A. 1. R 1926 Mad, 464. 
A I R. 1926 Lah. 229. 
"Lahore High Court. 
A. 1, R, 1926 All 228, 



INDIAN OASES. 



[1M6 



094 
995 
1001 
1006 
1007 
1003 

1012 
1013 
1015 
1016 
1017 
1019 
1021 
1027 
1028 
1030 
1031 
1034 
1045 
1046 
1046 
1047 
1051 

1053 
1055 



Ghiranji Lai v. Shib Lai . 

Baldeo Kurmi v. Kashi Chamar 

\V. & T. Avery Ld. v. Kessoram Poddar 

Lakshmi Chand v. Mukta Parshad 

East Indian Railway v. Firm Baldeo Gutain 

Indian Vacuum Brake Co. Ltd. v. E. S. Luard 

Singh Ram v. Kala 

Raghubir Singh v. Nathu Mai 

Firm Budhu Mai-Parma Nand v. Gokal Ohand ... 

Lalchand Deomal, In re ... 

Jai Narain v. Jafar Beg 

Municipality of Tando Adam v, Khair Mahomed . 

Alagirisami Pillai v. Lakshnianan Chetty 

Bhagwati Dayal v. Dhan Kunwar 

Ramu Chetty v. Panchammal 

Ram Badan Upadhiya v. Sankatha Misra 

Ramdhani Muchi v. Khakshardas Tati 

Jasoda Koer v. Janak Missir 

Venkatarama Aiyar v. Soundaram Aiyar 

Ramaswami Aiyangar v. T. Raghava Aiyangar 

Khem Karan Das v. Baldeo Singh 

Bhunjanga Rao v. Periyathambi Goundan 

Rathan Singh v. Commissioner of Income Tax, Madras 

Kesaralu Naicker v. Corporation of Madras - 
Pooranalingam Servai v. Veerayi 



A. I. R. 1926 Lah. 242. 

24 A. L. J. 337; A. I. R. 1926 All. 312. 

30 C. W. N. 152; A. I. R. 1926 Cal. 481. 

8 L. L. J. 67. 

'Allahabad High Court. 

42 0. L. J. 543; A. I. R. 1926 Cal. 152; 53 0. 

306. 

8 L. L. J. 39; A. L R. 1926 Lah. 244; 7 L. 173. 
*Allahabad High Court. 
8 L. L J. 3; 7 L. 113. 
A. I. R. 1925 Sind 259. 
24 A. L. J. 355. 
A. I. R. 1925 Sind 260. 
50 M. L. J. 79; A. I. R. 1926 Mad. 371. 
24 A. L. J. 331; A. I. R. 1926 All. 3J1. 
(1926) M. W. N. 45; A. I. R. 1926 Mad. 402. 
'Allahabad High Court. 
A. I. R. 1926 Oal. 677. 
4 Pat. 394, A. I R. 1925 Pat. 787. 
(1926) M. W. N. 48. 
(1926) M. W. N. 118. 
A. I. R. 1926 All. 282. 
'Madras High Court. 
50 M. L. J. 157; 23 L. W. 267; A. I. R. 1926 

Mad. 462. 
23 L. W. 233; 50 M. L. J. 301; A.I. R. 1926 

Mad. 38L 
22 L. W. 782; (1926) M. W. N. 114; A. I. R. 

1926 Mad. 186. 



TABLE 



OF 



Cases Applied, Approved, Considered, Disapproved, 

Dissented from, Distinguished, Explained, Followed, 

Not Followed, Overruled and Relied upon In 

Volume 92 of Indian Cases, 1926. 



Page. 

Abdul Hakim Khan Chaudhuri v. Elahi Baksha 
Saha,85Ind. Cas. 103; 52 0. 43; 29 0. W. N. 
138; A. I. R. 1025 Gal. 309 (Followed) - , 963 

Abdul Rahman Shah v. Shahana, 58 Ind. Cas. 748; 
1 L. 339; 82 P. W. R. 1930; 1 L. L. J. 188 
(Relied on) .. 802 

Abid Ali v. Arabunnissa, 1 O. C. 75 (Followed) 265 
Aduram Haldar v. Nakuleswar Rai Chowdhury, 

49 Ind Cas. 137; 29 C L. J. 48 (Relied on) ... 514 
Ahmad Raza Khan v. Ram Lai, 26 Ind. Cas. 922; 

13 A. L. J. 204; 37 A. 203 (Relied on) ... 99 

Aizunnissa Khatoon v. Kariiiumnisaa Khatoon, 
23 C. 130; 12 Ind. Dec. (N. s ) 87 (Dissented 
from) ... 82 

Alice Qeorgina Skinner v. Mukarram Ali Khan, 
92 Ind. Cas. 330; A.I R. 1925 All. 77; L. R. 
5 A. 607 Civ. (Not followed) . . 566 

Anantarama Aiyar v. Yusuf ji Oomer Sahib, 36 
Ind. Cas. 903; 31 M. L. J, 133; (1916) 2 M. W, 
N. 236 (Relied upon) ... 5 

Andukuri Venkatarama Das v. Pachigolla Gavar- 
raju, 70 Ind. Cas. 677; 43 M. L. J. 153 at p. 156; 
(1922) M. W. N. 305; 16 L. W. 228; A. I. R. 
1922 Mad. 173; 31 M. L. T. 154 (Distinguished) 472 
Arumugam Chetty v. Muthu Koundan, 52 Ind. 
Cas. 525; 42 M. 711; 9 L. W. 565; (1910) M. W. 
N. 409; 37 M. L. J. 166; 26 M. L. T. 96 (Relied 
on) . . 85 

Arunachalam Chettiar v. Rajeswara Setupati, 71 
Ind. Cas. 257; 15 L. W. 63; (1921) M. W. N. 
873; 30 M. L. T. 84; 42 M. L. J. 74; A. L R. 
1922 Mad. 55 (Distinguished) ... 354 

Arura v. Bur Singh, 84 Ind. Ca. 67; 5 L. 371; A. 

I.,R. 1925 Lah. 31 (Relied on) . . 260 

Asutosh Goswami v. Upendra Prosad Mitra, 38 
Ind. Oas. 17; 21 C. W. N. 564; 24 C. L. J. 467 
(Relied on) ... 960 

Attra v. Mangal Singh, 65 Ind. Cas. 264; 2 L. 
300; 4 L. L. J. 1; 27 P. L. R. 1922; A. I. R. 
1922 Lah. 43 (Followed) 762, 791 

Aulia Khan v. Kanshi Ram, 17 Ind. Cas. 677; 45 
P. R. 1L3; 25 P. W. R. 1913; 145 P. L. R. 1913 
(Not followed) ... 762 

AutHikesavaloo Naicker v. Shah Abdulla, 29 Ind. 
Oas. 62; 2 L. W. 479; (1915) M. W. N. 337 
(Relied on) . . 405 

Ayisa Umma T. Puthiyadurayil Kumna Chum- 
kandi Abdulla, 76 Ind. Cas. 126; (1923; M. W. 
N. 670: A. I. R. 1924 Mad. 178; 19 L. W. 613 
(Relied on) ... 782 

B 

Badcock v.Hunt, (1889) 22 Q. B. D, 145; 58 L. J. 

. Q, B. 134; 60 L. T. 314; 37 W. R. 205; 53 J. P. 
340 (Explained and distinguished) ... 361 

Bai Balagavri v. Motilal Ghelabai, 72 Ind. Cas. 
224; 47 B. 523; 25 Bom. L. R. 199; A. I. R, 1923 
Bom, 247 (Distinguished) ... 785 



B- contd. 



Page, 



Bai Divvali v. Umedbhai Bhulabhai Patel, 36 Ind. 

Cas. 564; 40 B. 614; 18 Bom. L. R. 773 

(Relied on) 
Bai Somi v. Chokshi Ishvardas Mangalaas, 19 B. 

245; 10 Ind. Dec. (N. s ) 166 (Relied on) 
Balakrishna Aiyar v. Muthuswami Aiyar, 3 Ind. 

Cas. 878; 32 M. 271; 5 M. L. T. 145; 19 M. L. J. 

70 (Distinguished) 
Balkaran Upadhya v. Gaya Din Kalwar, 24 Ind. 

Cas. 255; 36 A. 370; 12 A. L. J. 635 (Distinguish- 
ed) 
Balkishen Das v. Bedmati Koer, 20 C. 388; 10 

Ind. Doc. (N. s.) 263 (Relied on) 
Balwant Singh v. Rev. Rockwell Clancy, 14 Ind. 

Cas. 629; 34 A. 296; (1912) M. W. N. 462; 11 

M. L. T. 344; 9 A. L. J. 509; 15 C. L. J. 475; 

16 C. W. N. 577; 23 M. L. J. 18; 14 Bom. L. R. 

422; 39 I. A. 109 (P. C.) (Distinguished) 524 
Bapu Ammal v. Govinda Padiyachi, 7 M. L. J. 

261 (Followed) 
Barada Kinkar Chowdhury v. Nabin Chandra 

Datta, 4 Ind. Cas. 408; 11 C. L. J. 83; 14 C. W. 

N. 465 (Followed) 
Bavah Meah Saib v. Khajee Meah Saib, 4 M. H. 

C. R. 21S (Relied on) 
Bepin Behari Saha v. Abdul Barik, 35 Ind. Cas. 

613; 44 C. 950; 21 C. W. N. 30; 24 C. L. J. 446 

(Relied on) 
Bhagwan Sahai r. Narsingh 8ahai, 3 Ind. Cas. 

615; 31 A. 612; 6 A. L. J. 871 (Relied on) 
Bhagwat Prasad Tewari v. Muhammad Shibli, 66 

Ind. Cas. 892; 20 A. L. J. 270; A. I. R. 1922 All. 

110 (Relied upon) ... 493 

Bhaishankar Nanabhai v. Municipal Corporation 

of Bombay, 31 B. 604; 9 Bom. L. R. 417 (Fol- 
lowed) ... 790 
Birendra Ghose v. Em-poror, 7 Ind. Cas. 359; 37 

C. 467; 14 C. W. N. 1114; 11 Cr. L. J. 453 

(Relied, upon) ... 419 

Bisheshar Singh v. Ram Daur Singh, A. W. N. 

(1887) 302 (Followed) ... 373 

Bishun Prashad Pathak v. Sashi Bhusan Misra, 

73 Ind. Cas. 294; A. I. R. 1923 Pat. 133; 2 Pat. 

L. R. 17 (Distinguished) ... 723 

Bomadevara Naganna Naidu Bahadur v. Ravi 

Venkatapayya, 76 Ind. Cas. 594; 46 M. 895; 

(1923) M. W. N. 554; 21 A. L. J. 726; A. L R. 

1923 (P. 0.) 167; 33 M. L. T. 262; 45 M. L. J. 

657; 25 Bom. L. R. 1290; 18 L. W. 913; 28 C. W. 

N. 568; 39 C. L. J. 312; 50 I. A. 301 (P. C.) 

(Distinguished) ... 352 

Brij Indar Singh v. Kanshi Ram, 42 Ind. Cas. 43; 

45 0. 94 at p. 106; 33 M. L. J. 486; 22 M. L. T. 

362; 6 L. W. 592; 126 P. W. R. 1917; 15 A. L. 

J. 777; 19 Bom. L. R. 866; 3 P. L. W. 313; 26 

C. L. J. 572; 104 P. R. 1917; (1917) M. W. N. 

811; 22 C. W. N. 169; 127 P. L. R. 1917; 44 I. A. 

218 (P. 0.) (Relied on) ... 1031 



640 
251 



364 



330 
709 



720 
373 



782 

915 



802 
672 



INDIAN OASfcS. 



[1926 



~ conoid. 



Page. 



British & Beningtons Limited v. N. W. Cachar 
Tea Co. Ltd., (1923) A. C. 48; 92 L. J. K. B. 02; 
128 L. T. 422; 28 Com. Cas. 265 (Followed) . . 002 

Brojender Ooomar Roy, In re, B. L. R. Sup. Vol. 
728; 7 W. R. 520 (Followed) . . 1031 

Brojeudro Goomar Roy v. Madhub Chunder 
Ghose, 8 C. 343; 4 lad. Dec. (N. s.) 219 (Relied 
on) ... 792 



Central Bank of India v. Nadirshaha Mehta, 79 
Iiid. Cas. 445; A. I. R. 1924 Sind 13 (Relied 
upon) . 667 

Champsey Dossa v. Gordhandas Kessowji, 40 
Ind. Cas. 805; 19 Bom. L. R 381 (Followed) . . 112 

Ghandan Singh v. Laxman, 90 Ind. Cas. 949, 21 
N. L. R. 98; A. I. R. 1925 Nag. 438 (Distinguish- 
ed) . 785 

Chhajju Ram v. Neki, 72 Ind. Cas. .566; 49 I. A. 
144; 30 M. L. T. 295; 20 O W. N. 697; 41 P. L. 
R. (P. C ) 1922; 3 P. L. T. 4.33; A. I. R 1922 
P. C, 112; 16 L. W. 37; 17 P. W. R. 1922; 3 L 
127; 43 M, L. J 332; 24 Bom. L R. 1238; 4 U. 
P. L. R. (P. C.) 99; 36 C. L. J. 459 (P. C.) (Fol- 
lowed) ... 1013 

Chhajmal Das v. Sirya, A. W. N. (1906) 251; 3 

A. L. J. 625(iYot/oMoW,) . . 3 
Chundeechurn Dutt v. Eduljee Cowasjee Bijnee, 

8 C. 678; 11 C. L. R. 225; 4 Ind. Dec. (N. s.) 
437 (Relied on) ... 633 

Chunilal Fulchand v. Mangaldas Govardhandas, 
16 B. 592; 8 Ind. Dec. (N. s ) 874 (Followed) . 465 

Clayton's case, (1816) 15 R R. 161; 1 Mer. 572; 35 
E. -R. 781 (Distinguished) . 047 

Committee of Management of Hyderabad v. 
Ramchand Gownkiram, 87 Ind 'Cas. 258; 16 
S. L. R. 98 at p. 101; A. I. R. 1923 Sind 1 (Ex- 
plained and distinguished^ . . 361 

Constable v. Nicholson, (1863) 32 L. J. C. P. 240 
at p. 244; 14 C. B. (N. s ) 230; 11 W. R. 698; 
143 E. R. 434; 135 R. R. 672 (Relied on) ... 465 

Corea v. Appuhamy, (1912) A. C. 230; 81 L, J. 
P C. 151; 105 L. T. 836. (Relied on) . . 99 

Cory Brothers and Company Limited v. The 
Owners of the Turkish Steamship "Mecca", 
(1897) A. C. 286; 66 L. J. P. 0. 86; 76 L, T. 
579; 45 W. R, 667 (Followed) ... 947 

Cotton v. Vogan, (1896j A. C. 457; 65 L. J. Q. 

B. 486; 74 L, T, 591; 61 J. P. 36. (Followed) 610 

D 

Davood Mohideen Rowfcher v. Jayarama Iyer, 62 

Ind, Cas. 284; 44 M. 937; 40 M. L. J. 38; 13 

L. W. 281; (1921) M. W. N. 43; 29 M. L. T. 

78. (Followed) ... 20 

Devasigamony v. Sethuratna Iyer, 87 Ind. Caa. 

363; A. I R. 1925 Mad. 1034. (Followed) . . 100 
Devata Sri Ramamurthi v. Venkata Sitarama 

Chandra Row, 22 Ind. Cas. 279; (1914) M. VV. 

N. 95. (Relied on) ... 20 

Dhulabhai Dabhai v. Lala Dhula, 64 Ind. Cas. 

115; 46 B. 28; 23 Bom. L. R. 777; A. 1 R. 1922 

Bom. 137. (Relied on) ... 663 

Dinobundhoo Nundee v. Keshub Chunder Ghose, 

3 W. R. Mis. 25. (Relied on) ... 792 

Doraisami v. Chidambaram Pillai, 75 Ind. Cas. 

46; 47 M. 63; 45 M. L. J. 413; 18 L. W. 577; 

33 M. L. T, 25; (1923) M. W. N f 817; A, L R. 

d, 130, (Not followed) ... 308 



D concld. 

Page 
Drobomoyi Gupta v. Davis, 14 C. 323; 7 Ind. 

D^o (N. s ) 214. (Distinguished) 963 

Durbar Ivlutehar v. Khachar Harsur, 32 B. 318; 

1 ) Born L. R. 297. (Distinguished) . 787 

Ours* i Spanker v. Ram Pnisad, 14 C. P. L. R. 
151 at p. 152. (Relied on) ... 305 



Ea^t Indian Railway Company v. Fazal Elahi, 

85 lad Cas. 474; L. R. 6 A/ 59 Civ.; A I. R. 

192.5 All. 273; 47 A. 136 (Not followed) 
v Nathumal 

Bohari Lai, 39 Tnd. Cas. 130; 39 A. 418; 15 A. 

L. J. 321 (Not followed) 
Eastern Shipping Co. v. (Juah Beng Kce, (1924) 

A. C. 177; 33 L J. P. 0. 72; 130 L. T. 462; 40 

T. L R 109. (Relied on) 
Emparor v. Allahdad Khan, 19 Ind. Cas. 332; 11 

A L J. 442; 14 Cr. L. J. 236; 35 A. 3)8. 

(Followed) 
v. Anappa Bharamg'inda, 9 Bom. L. R 

347; 5 Cr.. L J. 32.1 (Relied upon) 

-- v. Balaram Da*, 71 Ind. Cas 685; 19 



C 35S; A. I R. 1922 Cal. 382; 24 Cr. L J. 221. 
upon) 

v. Ganga Prasad, 29 A, 68 i; 4 A T; J. 
005; G Cr. L. J. 107; A. \V. N. (1907; 233. 
(Relied 071) 

v. Satyendra Nath Roy, 57 Ind. Cas. 

277; 1 P. L. T. 379; (1920) Pat. 225; 21 Cr. L. 
J. 613. (Dissented from) 



603 



603 



715 



441 
419 



167 



429 



896 



Fazal v. Mangaldas, 66 Ind. Cas. 726; 46 B. 499 
at p. 502; 23 Born L R. 1U4; A. I. R. 1922 
Bom. 303. (Followed} ... 9 

Firm Balraru Daes-Fakir Chand v. Great Indian 
Peninsula Railway Company, 88 Ind. Caa. 
559; L>3 A. L. J. 615; L. R. 6 A. 310 Civ., A. 1. 
R. 1923 All. 562; 47 A. 724. (Followed) ... 1007 

Frost v. Knight, (1672) 7 Ex. Ill; 41 L. J. Ex. 
78; 26 L. T. 77; 20 W. R. 471. (Followed) ... 333 



Gadi Neelaveni v. Mavappareddi Gari Narayana 
Reddi, 53 Ind. Cas. 8i7; 43 M. 94; 37 M. L. J. 
599; 26 M. L. T. 377; 10 L. W. 603; (1920) M. 
W. N. 19. (Relied on) ^ ... 615 

Gajadhar Pan.de v. Jadubir Pande, 85 Ind. ,Cas. 
31; 22 A. L. J. 980; L. R. 5 A. 780 Civ.; A. 1. 
R. 1925 All. 180; 47 A. 122. (Distinguished) ... 316 

Ganapathi Brahmayya v Kurella Kamiab, 54 
Ind. Cas. 45; 43 M. 141; 10 L. W. 476; 38 M. 
L. J. 123. (Doubted) ... 112 

Gandla Pedda Naganna v. Sivanappa, 28 Ind. 
Cas. 232; 33 M 1162 at p. 1L70; 16 M. L. T. 
310; 27 M. L. J. 520. (Followed) ... 982 

Ganga Ram v. Natha Singh, 8J Ind. Cas. 820; 
5 L. 425; A. I. R. 1924 P. 0. 183; 22 A. L. J. 
688; 47 M. L. J. 64; 20 L. W. 101; 26 Bom. L. 
R 750; 10 O. & A. L. R. 771; 35 M. L T. 141; 
(1924) M. W. N. 599; 2 Pat. L. K. 257; 11 0. L, 
J. 534; 6 L. L. J. 551; 51 1. A. 377; 1 L. C. 
446; L. R. 5 A. (P. C.) 133; 6 P. L. T. 97: 1 
0, W. N. 469; 29 C. W. N. 558 (P. C.). (Fol- 
lowed) ... 762 
Garuda Sanyasayya v. Nerella Muthemnia, 48 
lad. Cas. 740; 9 L. W. 1; 35 M. L. J. 881; 25 
M,L, T, 89, (DistinguMtd) . 950 



92] 



TABLE OF dASBS ALLIED Ac. 



27 



amold. 



Gauri Shanker Singh v Sheo Nandan Misra, 78 
Ind. Gas. 911; 46 A. 384; 22 A. L. J. 369; A. I. 
R. 1924 All. 543; L. R. 5 A. 306 Civ. (Fol- 
lowed) ... 85 

Ghulam Jilani v. Tmdad Husam, 4 A. 357; A. 
W, N. (1882) 67; 2 Ind. Dec. (N. s.) 979. (Not 
followed) ~ 313 

Ghulla Singh v. Sohan Singh, 69 Ind. Gas. 818; 
3 L. 280; A. I. R. 1922 Lah. 219; 4 L. L. J. 
500. (Relied upon) ... 966 

Glegg v. Bromley, (1912) 3 K. B. 474; 81 L. J. 
K. B. 1081; 106 L. T. 825. (Followed] ... 973 

Glyn Mills Co. v. East and West India Dock 
Co., (1882) 7 A. C. 591 at p. 614; 52 L. J. Q. B. 
146; 47 L. T. 309; 31 W. R. 201. (Relied 
upon) ... 206 

Gobind Das v. Rup Kishore, 77 Ind Gas. 409; 4 
L 367; 6 L. L. J. 25; A. I. R. 1924 Lah. 65. 
(Followed) . 566 

Gomathi Ammal v. Kupputhayi Aminal, 14 M. 
L. J. 175. (Followed) .. 335 

Gopal Rai Phul Chand v. G. T. P Railway 
Co., 82 Ind. Gas. 313; 16 A. 837; A. I. R. 1924 
All 621; L. R. 5 A. 575 Civ. (Not followed) 603 

Gopal Singh v. Bhaga, 69 Ind. Cas. 305; A. 1. 
R. 1924 hah 206. (Construed) . 966 

Gopala Krishnier v. Uanapathy Aiyar, 58 Ind. 
Gas. 121; 12 L. W. 772 at p. 775; (1920) M. W. 
N. 478. (Distinguished) ... 950 

G. I. P. Railway Go. v. Firm Bhola Nath-Debi 
Das, 70 Ind. Gas. 854; 45 A. 56; A. I. R. 1923 
All, 79 (Not followed) ., 603 

Grish Ghunder Lahiri v. Shashi Shikhareswar 
Roy, 27 C, 951 at p. 967; 27 I. A. 110; 4 G, 
W. N. 631; 10 M. L. J. 356; 2 Bom. L, R. 709; 
7 Sar. P. G. J. 687; 14 Ind. Dec. (N. s.) 622 
(P. C). (Relied on} ... 139 

Gulaari Lai v. Latif Husam, 35 Ind. Gas. 27; 38 
A. 181; 14 A. L. J. 84. (Followed) .. 282 

Gurdit Singh v. Charan Das, 72 Ind. Cas. 797; 
A. I. R. 1922 Lah. 415. (Relied upon) . . 966 



H 



Hakim Lai v. Mooshahar Sahu, 34 G. 999 at p. 

1018; 11 0. W. N. 889; 6 G. L. J. 410. (Relied 

upon) > 5 

Hamid Husain v. Kubra Begam, 44 Ind. Cas 

728; 44 A. 332; 16 A. L. J. 132. (Followed) 913 
Hanuman Kamat v. Hanuman Mandur, 19 C. 

123; 18 I. A. 158; 6 Sar. P. G. J. 91; 9 Ind. Dec. 

(N. s.) 527 (P. 0.). (Followed) . . 787 

Har Prasad v. Tajammul Husain, 44 Ind, Cas. 

720; 16 A. L. J. 239. (Not followed) ... 995 

Hari Ram v. Indraj, 69 Ind Cas. 167; 44 A. 730; 

20 A. L. J. 631; A. I. R. 1922 All. 377; 9 0. & 

A. L. R. 123. (Relied on) ... 260 

Harvey v. Shelton, (1844) 7 Beav. 455; 49 E. R. 

1141; 13 L. J. Ch. 466; 64 R. R. 116. (Relied 

on) .. 792 

Hasan Premji v. Jerbai, 0. 0. J. Appeal No. 41 

of 1920 decided by Macleod, C. J. and Shah, 

J. on December 17, 1920 (unrep.). (Followed} 225 
Hemanta Kumari Debi v. Midnapore fcemindari 

Co , 53 Ind. Gas. 534; 47 C. 485; 37 M. L. J. 

525 17 A. L. J. 1117: 24 G. W. N. 177; (1920) 

M. W. N. 66; 27 M.-L. T. 42; 11 L. W. 301; 

46 I, A. 240; 22 Bom, L, R, 488 (P, 0,), (Relied 
,ri " 553 



H oenald. 



Page. 



Hirad: H. ' : . v. Oadigi Muddappa, 6 M. H. C. 
R. I 1 --' .'.' on) .. 106 

Hnin Yin v. Than Pe, 44 Ind Cas. 337; 9 L. B 
R. 92; 19 Cr. L. J. 321; 11 Bur. L. T. 58. 
(Relied upon) ... 743 

Hunoomanpersaud Panday v. Babooee Munraj 
Koonweree, G M. I. A. 393; 18 W. R. 81vr 
Sevestre 253n; 2 Suth. P, C. J. 29; 1 Sar. P. 0* 
J. 552; 19 E. R. 147. (Relied on) 378, 827 

Husenuddin Nurddiu v. Dulakshidas Kesavlal 
77 Ind. Gas. 474; A. I. R. 1923 Bom. 299. (Not 
followed) _ 566 

I 

Indramani Dasi v. Surendra, 64 Ind. Cas. 852- 
35 C. L. J. 61; A. I. R. 1922 Gal. 35. (Rdicd 
on ) ~. 497 

Irulappan Scrvai v. Veerappan, 69 Ind. Cas 918- 
42 M. L.J. 113; 15 L. W. 99; (1922) M W N 
67; 31 M. L. T. 71. (Not followed) ' . '. 975 

Ishrappa Gaaap Hsgde v. Krishna Putta Shankar 
Hegde, 67 lad. Gas. 833; 24 Bom. L R. 428- 46 
B 1)25; A. I. K. 1922 Horn. 413. (Relied 071)' ... 663 

Isuri Prasad Singh v. Umrao Singh, 22 A. 234- 
A. ^W. N. (1900; 46; 9 Ind. Dec. (N s j 1187*. 
(Relied on) ' tt< 439 

Iswar Datt Upadhiya v. Mahesh Datt Upadhiya 
89 Ind. Gas 114;"2i A. L. J. 862; L. R 6 A 
451 Civ.; A. I. R. 1925 All. 747. (Followed) ..! 1 



Jadubir v. Gajadhar, 75 Ind. Cas. 785; 21 A L, 

J. 809; A. 1 K. 1924 All. 169; L. R. 5 A. 53 Oiv. 

(Distinguished) <t< 31(5 

Jagannath v. Dibbo, 1 Ind. Cas. 818; 6 A L j* 

49 at p. 51; 31 A. 53. (Followed) ' . .' 471 

Jagannath Khan v. Bajrang Das Agarwala, 62 

Ind. Gas. 97; 48 C. 61. (Distinguished) . . 943 

Janoothassan v. ^lahamad Ohuthu, 83 Ind Cas 

425; 47 M. 877; 47 M. L. J. 356; 20 L. W.' 677 : 

A. L R. 1925 Mad. 155. (Followed) 
Janoothassan v. Haharnad Ohuthu, 82 Ind Gas 

425; 47 M. 877; 47 M. L. J.356; 20 L. W. 677- A* 
I. R. 1925 Mad. 155. (Relied on) . .' 491, 

Javerbhai Jorabhai v. Gordhan Narsi, 28 Ind 
Cas. 442; 17 Bom. L. R. 259 at pp. 265, 266; 39 

B. 358. (Relied on) ... 6 40 
Jivan Bhaga v. Hira Bhaiji, 12 B. 363; 6 Ind 

Dec. (N. s,) 726. (Distinguished) ^ 759 

Jivan Bhaga v. Hira Bhaiji, 12 B. 363; 6 Ind 

Dec. (N. s.) 726. (Followed) . .' 393 

Jogendra Nath' v. Baladeb Das, 35 C, 961; 12 C. 



491 



W. N. 127; 6 C. L.J, 735. (Relied on) ... 99 

Joshi Sahib Prakash v. Jhinguria, 78 Ind. Cas 
416; 46 A. 144; A. I. R. 1924 All. 446. (Relied 

on ) ... 615 

Jumo Allarakhio v. Emperor, 34 Ind. Gas. 649- 

9 S. L. R. 223; 17 Cr. L. J. 233. (Relied upon) 419 
Jurugumilli Brahmayya v. Chellaghali Achiraju 

70 Ind. Gas. 615; 45 M. 716; (1922) M. W. N 

280; 31 M. L. T. 91; 43 M. L. J. 221*; A. I. R. 

1922 Mad. 373. (Relied on) ... 8H 

Jwala Singh v. Teja Singh, 71 Ind. Cas. 801* 

A. I. R. 1924 Lah. 273. (Not followed) .' 753 

Jyoti Prakash Nandi v. Mukti Prakash Nandi 81 

Ind. Caa. 734; 51 0. 150; A. I R. 1924 Oal, 485. 

(Relied on) Mf 49^ 



OASIS* 



[1926' 



Page. 
Kalliani Amma v. Matathil Veetil Achuthan Nair, 

53 Ind. Gas. 239; 10 L. W. 174; (1919) M. W. N. 

573; 37 M L. J. 309. (Followed) .. 415 

Kaiyan Singh v. Raja, 3 Unreported Decisions, 
'p. 343. (Followed) ... 1046 

Kamakshi Achari v. Appavi Pillai, 1 M. H. C. 

li. 448. (Distinguished) ... 968 

Kambam Bali Reddy v. Emperor, 22 Ind. Gas. 

756; 37 M. 119; 15 Or. L. J. 180, (Followed) . . 851 
Kamruddin Hyder v. M. N. Hitter, 89 Ind. Gas. 
f >277;52 0. 342; A. L R. 1925 Gal 735. (Fol- 
lowed) ... 563 
Kaunuaami Pillai v. Jii^a!-^.:.-.!'.::!. 46 Ind. Gas. 

265; 41 M. 701 at j- ins, Itflri M. W. N. 497; 
. 24 M. L. T. 46; 8 L. W. 145; 35 M. L. J. 27. 

(Not followed) ... 800 

Kannusami Thonjirayan v. Muthusami Pillai, 38 

Ind. Gas. 194; (1917) M. W. N. 5; 5 L. W. 250. 

(Relied on) . . 342 

Kanshi Ram v. Sharf Din, 66 Ind. Gas. 161; A. I. 

R. 1922 Lah. 356. (Followed) ... 723 

Kanwar Ranzor Singh v. Chippal, 37 P. R. 1900; 

P. L. R. 1900 p. 303. (Followed) ... 526 

Karim Bakhsh v. Idu Shah, 40 Ind. Gas. 381; 4 

O. L. J.334. (Distinguished) ... 665 

Karim Buksh v. Queen-Empress, 17 C. 574; 8 

Ind. Dec. (N. e.) 922 (F. B.). (Relied on) ... 885 
Karean Sadashiv Patil v. Gatlu Shivaji Patil, 19 

Ind. Gas. 442; 37 B. 320; 15 Bom, L. R. 227. 

(Followed) ... 112 

Kartimbar Pandrapandaram v. Audimula Ponna- 

pundaram, 3 Ind. Gas. 725; 33 M. 262; 6 M. L. 

T. 261 (Followed) ... 800 

Kedar Nath v. Shanker Lai, 78 Ind. Gas. 934; 36 ' 

A. 303; 22 A. L. J. 185; A. I. R. 1924 All. 514; L. 

R. 5 A. 80 Oiv. (Distinguished) ... 553 

Khiarajmal v/Daim, 32 C. 296; 9 0. W. N. 201; 

2 A. L. J. 71; 7 Bom. L. R. 1; 1 0. L. J. 584; 

,32 I. A. 23; 8 Sar. P. 0. J. 734 (P. C.). (Folr 
.-lowed) .. 832 

Khulna Loan Co., Ltd. v. Jnanendra Nath Bose, 

45, Ind. Gas. 436; 22 G, W. N. 145 (P. O.). (Fol- 
lowed) ... 847 

Khushalchand v. Nandram, 12 Ind. Oas. 572; 13 
Bom. L. R. 977; 35 B. 516. (Distinguished) ... 803 

KonaThimma Reddi v. Secretary of State for 
India, 78 Ind. Oas. 91; 47 M. 325; 19 L. W. 59; 

46. M. L. J. 60; (1924) M. W. N. 146; A. I. R.- 
,,1924 Mad. 523. (Followed) .. 790 
Krishna v. Subbanna. 7 M. 564; 8 Ind. Jur. 504; 2 

Ind. Dec. (N. s.) 975. (Followed) ... 364 

Krishna Mohun Basak v. Kunjo Behari Basak, 9 

0. L:R. 1. (Relied m) ... 792 

Krishna Variar v. Kunji Torbanar, 3 M. L. J. 190. 

(Not followed) ... 373 

Krishnabai v.>Manohar, 30 B. 593 at p. 597; 8 

Boni. L. R. 671. (Followed) ... 785 

Kriihnaswamy Naidu v. Chengalroya Naidu, 76 

Ind. Oas. 836; 47 M. 171; 18 L. "W: 870; 45 M. 

-L.J.813; 33 M. L.T.207; A. L R.,1924 Mad, 

114. f Relied on) ,. 615 

KrisbBftyyar T. Venkayyar, 6 M,J81; 2 Ind. Dec. 

(N. s.) 334. (Relied on) ... 770 

Kundan Lai v. Jagan Nath, 30 Ind. Oas. 92; 37 A. 

649; 13 A. L. J. 908. (Not followed) . . 947 

Kunhi Amma v. Ammu Amma, 16 Ind. Gas. 
178; 36 ,M. 591; (1912) M. W. N. 1233: 24 M. L. 

J.559. (Relied on) ... 390 



Lachmi Narain v, Nirotam Das, A. W. N. (1906) 
272; 29 A. 69; 3 A. L. J. 688. (Followed) .. 3 

Lakshmindrathirtha Swamiar v. Raghavendra 
Rao, 59 Ind. Gas. 287; 43 M. 795 at p. 798; 12 
L W. 139; 39 M. L. J. 174; (1920) M. W. N. 
568; 28 M. L. T. 269. (Followed) ... 483 

Lai Singh v. Emperor, 91 Ind. Gas. 954; 5 L. 
396; A. I. R. 1925 Lah. 19; 27 Cr. L. J. 170. 
(Distinguished) . . 167 

Lallabhai Vajeram v. Bai M,. .',-.:, fc v. ri. 18 B. 59; 
9 Ind. Dec. (N. s.) 548. Jt . / . -., ... 802 

Lekh Ram v. Ramji Das, 57 Ind. Gas. 215; 1 
L. 234 (Followed) .. 624 

Lokasikhamani Mudaliar v. Tliinpnroyn Chettiar, 
38 Ind. Oas. 415; 5 L. W. 506, ^101' ' M. W. N. 
420. (Followed) ... 556 

Lord Rivers v. Adams, (1878) 3 Ex. D. 361; 48 
L. J. Ex. 47; 39 L. T. 39; 27 W. R. 381, (Re- 
lied on) .. 465 

Luckmee Chund v, Zorawar Mull, 8 M. I. A. 
291 at p. 307; 1 W. R. P. 0. 35; 1 Suth. P. C. 
J. 425; 1 Sar. P. C. J. 763; 19 E. R. 511. (Re- 
lied on) *. 915 

Lutchmeeput Singh v. Sadaulla Nushyo, 9 0. 
698; 12 G. L. R. 382; 5 Shome L. R. 27; 4 
Ind. Dec. (N. s.) 1115. (Relied on) ^ 465 

M 

Madderer, In re, Three Towns Banking Co. v. 

Maddever, (1884) 27 Ch. D. 523; 53 L. J. Ch. 

998; 52 L. T. 35; 33 W. R. 286. (Relied on) 405 
Madhavrao Waman Soundalgekar v. Raghunath 

Venkatesh Deshptnde, 74 Ind. Gas. 362; 50 I. 

A. 255; 25 Bom. L. R. 1005; (1923) M. W, N. 

689; A. I. R. 1923 P. G. 205; 33 M, L. T. 389; 

47 B. 798; 28 G. W. N. 857; 20 L. W. 248; 47 
. M. L. J. 248 (P. 0.). (Distinguished) ... 247 

Mahomed Ghouse Sah v. Thimma Setti, 1 Mysore 

L. J. 90. (Followed) ... 112 

Majju v. Teja Singh, 44 Ind. Gas. 814; 29 P. R. 
, 1918; 114 P. W. R. 1918; 118 P. L. R. 1918. 

(Disiinauished) ... 297 

Manga I Naran v. Emperor, 87 Ind. Gas. 424; 

49 B. 450; 27 Bom. L. R. 355; A. I. R. 1925 

Bom. 268; 26 Cr. L. J. 968. (Followed} ... 851 
Manghi Ram v. Firm of Ram Saran Das Maman 

Chand, 26 Ind. Oas. 415; 23 P. R. 1915; 35 P. 

W. R. 1915; 100 P. L. R. 1915. (Distingui- 
shed) ... 674 
Manji v. Ghulam Muhammad, 57 Ind. Gas. 207; 

1 L. 249. (Followed) .. 297 
Manji r. Ghulam Muhammad, 61 Ind. Oas. 415; 

2 L. 73; 3 L. L. J. 75. (Followed) . 297 
Mannox v. Greener, (1872) 14 Eq. 456 at p. 462; 

27 L. T. 408. (Followed) . . 516 

Mannu v. Tulshi, 64 Ind. Gas. 958; 20 A. L. J. 

39; A.I. R. 1922 All. 33. (Relied upon) ... 493. 
Manorath Das v. Ambica Kanta Bose, 1 Ind. Oas. 

57; 90. L.J. 443; 13 C. W. N. 533. (Relied 

on) .. 770 

Mata Din v. Ahmad Ali, 24 Ind. Cas. 874; 1 0. 

L.J. 263. (Distinguished) ... 665 

Mayer Alderson and Burgesses of Southmolton 

v. Attorney-General, (1854) 5 H. L. 0. 1 at p. 

31; 10 E. R. 796; 23 L. J. Oh. 567; 18 Jur. 435; 

101 R.R.I. (Followed) . 515 

Mohammad Abdullah Khan v. Bank Instalment 

Company Ltd., 2 Ind. Cas. 379; 31 A. 495; 6 A, 

L. J. 611, (Distinguished) ... 687 



TeL 92] 



TABLB OF OASES APPLIBD Ac. 



29 



M ooncld. 

Page. 

Mohammad Mondul v. Nafur Mondul, 26 0. 820; 
3 0. W. N. 770; 13 Ind. Deo. (N. s.) 1125. 
(Relied on) . . 827 

Moonshee Buzloor Ruheem v. Shumsunissa 
Begum, 11 M. I. A. 551; 8 W. R. P. 0, 3; 2 
Suth. P. C. J. 59; 2 Sar. P. 0. J. 259; 20 E. 
R. 208. (Followed) .. 913 

Moti Singh v. Maghar, 11 Ind. Gas. 880; 22 P. R. 
1912; 163 P. W. R. 1911; 244 P. L. R. 1911. 
(Followed) .. 299 

Motilal Pratabchand v. Surajmal Joharmal, 30 

B. 167; 6 Bom. L. R. 1038. (Explained) ... 273 
Muhammad Abdul Gaflhir Rowther v. Hamida 
Beevi Animal, 52 Ind. Cas. 505; 42 M. 661; 
(1919) M. W. N. 484; 25 M. L. T. 242; 36 M. 
L. J. 456. (Distinguished) ... 354 

Muhammad Abdul Majid v. Muhammad Abdul 
Aziz, 19 A 155; 24 I. A. 22; 7 Sar. P. C. J. 
Ill; 9 Ind. Dec. (N. s.) 103 (P. 0.). (Followed) 314 
Muhammad Habibullah v. Mushtaq Husain, 37 
Ind. Cas. 684; 14 A. L. J. 1183; 39 A. 95. 
(Relied upon) ... 5 

Muhammad Mosam Khan v. Bakhtawar, 70 P. 

R. 1895. (Followed} . . 526 

Muhammad Sajjad Ali Khan v. Muhammad 
Ishaq Khan, 54 Ind. Gas 504; 42 A. 154; 1 U. 
P. L. R. (A.) 168; 18 A. L. J. 83. (Followed) 1027 
Mul Chand v. Mukta Prasad, 10 A. 83; A. W. N. 
(1387) 287; 6 Ind. Dec. (N. s.) 56. (Distingu- 
ished) . . 803 
Muniappa Naik v. Subramania Ayyar, 18 M. 437; 
5 M. L. J. 60; 6 Ind. Dec. (N. s.) 654. (Fol- 
lowed) . . 833 
Municipal Committee, Chiniot v. Bashi Ram, 69 
Ind. Cas. 895; A. I. R. 1922 Lah. 170. (Relied 
upon) ... 966 
Municipal Committee of Delhi v. Devi Sahai, 62 
P. R. 1907; 105 P. L. R. 1908; 147 P. W. R. 
1907. (Followed) ... 765 
Muppavaraju Venkata Radha Krishna Rao v. 
Venthurumilli Venkatarao, 84 Ind. Cas. 965; 
(1924) M. W. N. 922; 47 M. L. J. 552; 20 L. W. 
711; 35 M. L. T. 135; A. 1. R. 1925 Mad. 229; 
48 M. L. J. 713. (Followed) ... 1045 
Muthaya Shetti v. Kanthappa Shetti, 45 Ind. Cas. 
975; (1918) M. W. N. 334; 34 M. L. J. 431; 7 
L. W. 482; 23 M, L. T. 291. (Relied on) ... 342 
Muthukaruppan Samban v. Muthu Samban, 25 
Ind. Cas. 772; 38 M. 1158; 1 L. W. 754; 16 M. 
L. T. 344; (1914) M. W. N. 768; 27 M. L. J. 
497. (Relied on) .. 478 
Muthusami Chetty v. Chinnammal, 24 Ind. Cas. 
320; 26 M. L. J. 517. (Followed) ... 504 

N 

Nabu Bepari v. Sheikh Mahomed, 5 C. W. N. 

207. (Distinguished) .. 98 

Nachimuthu Gnetty v. Andiappa Pillai, 42 Ind. 

Cas, 708; 6 L. W. 630; (1917) M. W. N. 778. 

(Followed) ... 626 

Nagappa Pillai v. Arunachalam Chetty, 85 Ind. 

Qas. 1016; 47 M. L. J. 876; A. I. R. 1925 Mad. 

281. (Followed) ... 968 

Nagindas Bhukandaa v. Ghelabhai Gulabdas, 

56 Ind. Caa. 449 & 450; 44 B. 673; 22 Bom. L. 

B. 322. (Dissented from) ... 673 

Nagindas Maneklal v, Mahomed Yusaif Mil- 
chela. 64 Ind. Cas. 923; 46 B. 312; 23 Bom. L. 

R. 1094; A. I, R. 1922 Bom, 122, (Rtlied 
Hp on) 378 



N-coneld. 



Pagt. 



Naina Muhammad Rowther y. Abdul Rahaman 

Rowther, 72 Ind. Cas. 207; 46 M. 135; (1922) 

M. W. N. 845; 17 L. W. 188; 32 M. L. T. 82; 

A. I. R. 1923 Mad. 257. (Followed) . . 396 

Nalannad v. Kambirampora Ravuni Nair, 84 

Ind. Cas. 973; 47 M. L. J. 686; (1924) M. W. 

N. 792; 20 L. W. 876; 35 M. L. T. 127; A. L 

R. 1925 Mad. 260. (Not followed) ... 827 

Namberumal Chetty v. Kotnyya, 21 Ind. Cas. 

773; 14 M. L. J. 498. (Relied on) . ... 674 

Nanda Kumar v. Ram Jiban, 23 Ind. Caa. 337; 

41 C. 990; 18 C. W. N. 681; 19 C. L. J. 457. 

(Followed) . . 317 

Natarajula Naicker v. Subramanian Chettyar, 69 

Ind. Cas. 939; 45 M. 778; (1922) M. W. N. 450; 

A. I. R. 1922 Mad. 181; 16 L. W. 705; 43 M. L. 

J. 695. (Pillowed) ... 626 

Nathu v. Shadi, 29 Ind. Cas. 495; 37 A. 522; 13 A. 

L. J. 714. (Not followed) ... 265 

Natla Bapiraju v. Puran Achutha Rajajee, 5 Ind. 

Cas. 456; 20 M. L. J. 337; (1910) M. W. N. 549; 

7M. L.T.17C. (Followed) ... 113 

Nepal Rai v. Debi Prasad, 27 A. 447; 2 A. L. J. 

105; A. W. N. (1905) 40. (Followed) ,.. 624 

Nilkanth v. Teshwant, 65 Ind. Cas. 331; 18 N. 

L. R. 134; A. I. R. 1922 Nag. 248. (Dissented 

from) t ... 803 

Nilmoni Chowdlniri v. Basanta Kumar Baner- 

jee, 29 Ind. Cas. 814; 19 C. W. N. 865. (Relied 

upon) ... 5 

Niranjan v. Gajadhar, 30 A. 133; 5 A. L. J 71; A. 

W. N. (1908) 45. (Followed) . . 995 

Nritia Gopal Singh v. Chandi Charan Singh, 10 

C. W. N. 1088; 4 Cr. L. J. 215. (Pillowed) ... 164 



Official Assignee of Madras v. Annapurnammal 
20 Ind. Cas. 901; 14 M. L. T. 150. (Relied 
upon) ... 5 

v. Sam band a 



Mudaliar, 60 Ind. Cas. 205; 43 M. 739; 39 M. L. 
J. 345; 28 M. L. T. 258. (Reliedupon) 



Pachkauri Lai v. Mul Chand, 66 Ind. Cas. 503; 

44 A. 554; 20 A. L. J. 437; A. I. R. 1922 All. 

279. (Followed) . .., 1015 

Panchanada Velan v. Vaithinatha Sastrial, 29 M. 

333; 16 M. L. J. 63. (Followed) ... 352 

Panchanan Basu v. Chandi Charan Misra, 6 Ind. 

Cas. 443; 37 C. 808; 14 C. \V. N. 874. (Relied 

on) .. 553 

Pandiri Bangaram v. Karmoory Subbaraju, 8 

Ind. Cas. 388; 34 M. 159; 8M. L. T. 285. (FoZ- 

lowed) ... 471 

Pansulari Venkataswami v. Mentana Rama- 

chandraRaju, 18 Ind. Cas. 520; 38 M. 138; 24 

M. L. J. 298; 13 M. L. T. 218; (1913) M. W. N. 

285. (Distinguished) ... 973 

Parbati v. Baij Nath Pathak, 16 Ind. Cas. 406; 35 

A. 3; 10 A. L. J. 300. (Followed) . . 479 

Parkodi Achi, In re, 68 Ind. Cas. 444; 45 M. 246; 

14 L. W. 624; 41 M. L. J. 587; (1921) M. W. N. 

854; 30 M. L. T. 88; A. L R. 1922 Mad. 211, 

(Followed) ... 824 

Pearl Mill Co. v. Ivy Tannery Co., (1919) 1 K. B. 

78; 88 L. J. K. B. 134; 120 L. T 28; 24 Com. 

Cas. 169. (Relitd on) ' ,., 333 



30 



Pooley v, Harradine, (1857) 110 R, R, 668; 7 E, 
& B. 431; 26 L. J. Q. B. 156; 3 Jur. (N. s.) 488; 
5 W. R, 405; 119 E. R. 1307, (Belied upon) ., 667 

Prohlad Chandra Das v. Biswa Nath Bera 82 
Ind. Cas. 411; 51 0. 972; 28 0. W. N. bD4- 40 
0. L. J, 79, A. I. R, 1924 CaJ. 1047. (Disiin* 
guished) . . 973 



INDIAN OASES. 



Queen- Empress v. Adam Khan, 22 A, 106; A. W 
N. (1899) 211; 9 Ind. Dec. (N. s)1100. (Not 
followed) 



v. Bisheshar, 16 A. 124; A. W. 

N. (1894) 10; 8 Ind. Dec. (N. 3.) 80. (Dissented 

, Mastana, il P. R, 1899 Or". 



from) 
(Followed) 



v. Virappa Chetti, 20 M. 433; 



895 

885 
170 



1 Weir 233; 7 Ind. Dec. (N. e.) 307, (Followed) 818 



R. y. DeBerenger, (1814) 3 M. A S. 67; 105 E. R. 
536; 15 R. R. 415. (Relied upon) . . 419 

~ v. Gurney, (1869J 11 Cox C. C. 414. (Relied 
upon) . . 419 

~ v, Murphy, (1838) 8 C. & P. 297. (Relied 
upon) ... 419 

v, Parsons, (1762) 1 Bl. W, 392; 92 E. R. 222. 
(Relied upon) ... 419 

Rabindra Chandra Chatterjee, In re, 67 Ind. Cas. 
985; 40 0.* 850; 35 0. L. J. 520; A. 1. R. 1922 
Cal. 484. (Followed) ... 896 

Radha Churn Chukerbutty, In re, 10 C. W. N 
1039; 4 C. L. J. 229; 4 Cr. L. J. 160. -Dissented 
from) * ... 896 

Radhakiian Hakumji v. Balwant Ramji, 7 B. 530; 
8 Ind. Jur. 146; 4 Ind. Dec. (N. s) '357. (Dis- 
tinguished) . 759 

P...." "'-'." v. Udechand, 11 C. P. L. R. 65. 
(heiieaon) ,., 305 

Raghunathaswanri Jyengar v. Gopaul Rao, 68 
Ind. Cas. 667; 41 M. L. J. 547. (121) M VV N 
732; 15 L. W. 123; A. I. R. 1922 Mad. 307. (Not 
followed) . . 308 

Ragunath Das v. Sunder Das Khetri, 24 Ind Cas 
304; 42 C. 72; 18 C W. N. 1058; 1 L. W.' 567 ; 
27 M. L. J. 150; 16 M. L. T. 353: (1914) M* 
W, N. 747; 16 Bom. L. R. 814; 20 C L, J 

- 555; 13 A. L. J. 151; 41 1. A. 251 (P. C.). (Relied 
o) . . 308 

Raj Kumari Debi v. Barkatulla Mandal, 12 Ind 
Cas. 161; 39 C. 278; 14 C. L. J. 407- 16 C W* 
N. 6. (Followed) ... 9 61 

Raja of Ramnad v. Venkatarama Iyer, 69 Ind 
Cas. 923; 45 M. 890; 16 L. W. 274; (1922) M' 
W.N.501; 31M.L. T. 158; 43 M. L. J. 264 ; 
A. I. R. 1923 Mad. 6 (F. B.). (Relied on) ..! 976 

Rajah of Ramnad v. Venkataramaiyer, 69 lad 
Cas. 923; 45 M. 890; 16 L. W. 274; (l922) M w' 
N. 501; 31 M. L. T. 158; 43 M. L. J. 564" A i R' 
1923 Mad. 6. (Followed) ' t J 412 

Rajah of Venkatagiri v. Mukku Narsava, 7 Ind* 
Cas. 202; 37 M. 1; 8 M. L. T. 258; (1910 M w' 
N. 369. (Followed) ' 863 

Rajah of Vizianagram y. Rajah Setrucherfa 
Somasekharaz, 26 M. 686; 13 M, L, J. 83. (Fol- 

.>1056 



R-eoatd, 



[1926 



Page. 



Rajangam Ayyar r, Rajangam Ayyar, 69 Ind, 
Cas. 123; 46 M. 373; 31 M. L, T. 136; 4 U P. L, 
R. (P. 0.) 85: 16 L. W. 615; A. I. R. 1922 P. C, 
266; 27 C. W. N. 561; 44 M. L. J. 745; 37 C. L. 
J. 435; 21 A.L. J. 460; 501. A. 134 (P. 0.). 
(Relied upon) .. 1028 

Ram Bharos v. Baban, 22 Ind. Cas. 734; 36 A. 
129; 15 Cr. L. J. 158; 12 A. L. J. 106. (Fol- 
lowed) ... 895 

Ram Bilas Singh v, Ramyad Singh, 58 Ind, Cas. 
303; 5 P. L. J. 622; 1 P. L. T. 535; 2 U. P. L. R. 
(Pat.) 228. (Relied upon) ... 378 

Ram Chandra v. Muhammad Nur, 73 Ind, Cas. 
656; 21 A. L. J. 485; 45 A. 545; A. I. R. 1923 
All. 591. (Distinguished) ... 31 

Ram Charan v. Lakhi Kanta, 7 B. L, R. 704; 16 
W. R. 1 (Followed) ... 960 

Ram Lai Singh v. Hari Charan Ahir, 5 Ind. Cas. 
999; 37 194; 11 C. L. J. 410; 11 Cr. L. J. 
348. (Relied upon) . . 855 

Ram Narayau Rai v. Ram Davi Rai, 63 Ind. Cas. 
282; A. I. R 1923 Pat. 98; 6 P. L. J. 680; (1922) 
Pat. 129. (Not followed) ... 980 

Ram Nundun Singh v. Janki Koer, 29 C 828; 29 
I. A 178; 7 C. W. N. 57; 4 Bom. L. R 634; 8 
Sar. P. 0. J. 351 (P. ). (Relied on) . 126 

Ram Prasad v. Rahat Bibi, 33 Ind. Cas. 622; 18 
0. 0.367. (Followed) ... 265 

Ram Singh v. Mathura, 14 Ind. Cas. 599; 3t A. 
354; 9 A. L. J. 303; 13 Cr. L J. 247. (Distin- 
guished) 588 

Ramachandra Iyer v. Perameswaram Munbi, 50 
Ind. Cas. 693; 42 M. 360; 38 M L. J. 396; 25 
M. U T 304; 9 L. W 492; (1919> M. W. N. 370. 
(Relied on) ' .,950 

Ramakka v. Nagasam, 02 Ind. Cis 13 5; 47 M. 800; 
48 M. L. J. 89; A. I. R. 1^5 Mad. 145. (Relied 
on) ... 193 

Ramakrishna Pillai v. Balakrishna Aiyar, 62 Tnd. 
Cas. 71*; 41 M. L. J. 60; 13 L. W. 541; (1921; 
M. W. N. 646. (Relied upon) ... 300 

Ramamirtha Ayyan v. Gopala Ayyan, 19 M. 433; 
6 M L. J. 2)7; 6 Ind. Dec. (N.s.)10o7. (Fol- 
lowed) ... 479 

Ramanadan Ohetti v. Pulikuti Servai, 21 M. 288; 
8 M. L. J. 121: 7 Ind Dec. (N. s ) 559. (Followed) 20 

Ramaauthan Chettyar v. Kalimuthu Pillay, 18 
Ind. Cas. 189; 37 M..163; 24 M. L. J. 619. (Reli- 
ed on) 491 

Ramaaawmi Chettiar v. Oppilamani Chetti, 4 
Ind. Cas. 10 9; 33 M. 6; 6 M. L. T. 269; 19 M. 
L.J.671. (Relied on) .. 709 

Ramffulam Singh v. Sheo Deonarain Singh, 51 
Ind. Pas. 152; 4 P. L. J. 287. (Not followed) 802 

Ratan Chand Jawala Das v. Asa Singh Bagha 
Singh, 62 Ind. Cas. 898; 4 L. L. J. 217; A. I. R. 
1922 Lah. 188. (Relied on) 674 

Ratan Chand-Jwala Das v. Asa Singh-Bagha 
Singh, 59 Ind. Cas. 669; 3 U. P. L. R. (L.) 3; 26 
P. W. R. 1921; 31 P. L. R. 1919. (Relied on) 674 

Ratan Lai v. Birjbhukan Saran, 61 Ind. Cas. 
774. (Distinguished) 787 

Ratnam Pillai v. Nataraja Desikar, 84 Ind. Cas. 
200; 46 M. L. J. 341; 19 L. W. 367; <1924^ M. 
W. N. 361; A. I K. 1924 Mad. 615; 34 M, L. T 
31. (Relied an) WQ 

Reference under Court F^es' Act, 29 M. 367; 16 
M. L, J. 287. (Followed) * W* 



Vol. 92J 



TABLE OF CASES APPLIED <*c. 



Rcencld, 



Page, 



Rerigate Rural District Council v. Sutton Dis- 
trict Water Co., (1908 x 99 L. T. 168; 72 J. P. 
301; 6 L. G. R. 930. ^Followed) ... 58 

Richards v. Starck, (1911) 1 K. B. 296; 80 L. J. K. 
B. 213; 103 L T. 813; 27 T L. R. 29. (Followed) 968 

Rudrappa v Karsingrao, 29 J3. 213; 7 Bom. L. R. 
12. (Followed) ... 58 

J}. 1 ! 1 : 1 :'. v. Krishnaewami, 75 Ind. Cas. 189; 
hi. W 237; ;m3j M W. N. 6(54; 47 M. 139; 
A. I, R. 1924 Wad, 369. (Followed) ... 556 



Sabapathy Chetty v. Ponnusawmy Chetty, 28 Ind. 

Oas. 365. (Followed) ... 524 

Samia Pillai v. Chockalinga Chettiar, 17 M. 76; 

4 M. L. J 8; 6 Ind. Dec. (N. s.) 52. (Relied on) 709 
Bankaralinga Nadan v. Rajeswara Dorai, 31 M 

236; i2 C. W. N. 946; 4 M. L T. 101; 18 M. L. 

J. 387; 10 Bom, L. R. 781; 8 C. L. J. 230; 35 I. 

A. 176 (P. C.) (Distinguished) ... 311 

Sankaranaryanam Pillai v. Rajamani, 83 Ind. 

Cas. 196; 47 M. 462; 46 M. L. J. 314; 34 M. L. 

T. 152; A. I. R. 1924 Mad. 550; 20 L. W. 357. 

(Followed) ... 524 

Sankunni v. IkkoraKutti, 52 Ind. Cas. 989; (1919) 

M. W. N. 570; 10 L. W. 155; 37 M. L.J.209. 

(Followed) . . 968 

Sarup Narain v. Sheo Shankar Lai, 42 Ind. Cas. 

416; 4 0. L. J. 522. (Followed) . 317 

Sasibhushan Mookerjee v. Rndhanath Bose, 25 

Ind. Cas. 267; 19 C VV, N. 835, 20 C. L. J. 433. 

(Relied on) 544 

Sasti CharanNundi v. Annapuruna, 23 C. 699; 12 

Ind Dec. (N. s.) 465. (Dissented from) .. 984 

Sat Narain v. Behari Lai, 84 Ind. Cas. 883; 23 

A, L J. 85; 47 M. L. J. 857; 10 & A. L. R. ' 

1332; A.I. R. 1925 (P. C.) 18; (1925) M. W. N. 

1; L. R. 6 A, (P. C ) 1; 26 P. L. R. hi; 27 Bom. 

L. R. 135; 21 L. W. 375; 1 L. C 500; 1 O. W. N. 

916; 6 L. 1; 29 C. W. N. 797; 52 I. A. 22 (P. C.) 

(Pillowed) 309 

Satis (liandra Cl akrabarti v.Ram Dayal Oe, 59 

Ind. Cas. 143; 48 C. 3H8; 32 C. L. J. 94; 24 C. 

W. N. 982; 22 Cr. L. J 31. (Relied on) 429 

Satyendra Kath Sen v. Narendra Nath Gupta, 81 

Ind. Cas 867; 39 C. L. J 279; A. I. R 1924 Cal. 

'806. (Relied upon) . 493 

Secretary of State for India v. Mathnrabai, 11 B. 

213; 7 Ind. Dec (N. s.) 600. * Distinguished) .. 465 
Seshamma Shettati v. Chickaya Hegade, 25 M. 

507; 12 M. L. J. 119. (Distinguished) ... 963 

Sevak Jeranchod BhogiJal v. Dakoie Temple 

Committee, 87 Ind. Cas. 313; 49 M. L. J 25; 23 

A. L. J. 555; A. I. R. 1925 (P. C.) 153; L R. GA. 

(P. 0)117; (1925) M. W. N. 474; 2 O. W. N. 

535; 41 C. L. J. 628; 22 L. W. 246; 27 Bom. L. 

R. 872 (P.O.). \Faiowed) .. 556 

Sevugan Chetty v. K \ i.-Vi { Ai> :mir i". 13 Ind. Cas. 

268; 36 M. :ii8; ll- .M. L t. j,' 7; "a2 M. L. J. 139. 

(Relied on) * ..330 

Seymour v. Pickett, (1005) 1 K.B. 715; 74 L. J. 

K B. 413; 92 L. T 510V 21 T. L. R. 302. (Fol- 
' lowed) ' - "... 947 

Shankar Bharati v. Naraeinha Bharati, 69 Tnd. 

Cas. 80; 47 B. 106; 24 Bom. . R 925; A. I. R. 

1922 Bom. 383. (Followed 1027 

Shankar Sahi v. Baichu Ram,) 86 Ind. Cas. 769; 47 

A. 381; 23 A. L J, 204; L. R. fi A. 214 Civ,; 

A. I, R, 1925 All, 333, (Distinguished) .*. 378 



8-cotttd, ^ 



Page, 



Shanmuga Mudaliar v. Kumaraswami Mudali, 
90 Ind. CUB. 4*0, 21 L. W. 403; A. I. R. 1925 
Mad. b70; (1925) M. W. N. 655; 48 M. 661. (Dis- 
sented from] ... 9C8 

Sharada Moyee Burmonee v. Wooma Moyce Bur- 
monee, 8 W. R. 9. 'Followed) ' . . 833 

Sharpe v. Wakeiielcl, (1891) A. O/ 173; 60 L. J. 
M. 0. 73, 64 L T. 180; 39 \V. R. 551; 55 J. P. 
197. (Followed ; ... 1031 

Sheikh Muhammad v HabibKhan, 67 P. R. 1905; 
113 P. L. R. 1905; 94 P. W. R. 1305. (Followed) 1012 

Shiva Nathaji v. Joma Kashinath, 7 B 341; 7 
lud. Jur. 656; 4 Jnd. Dec. (N. B.) 229. (Follow- 
ed) ... 40 

SitaRamv. Raja Ram, 12 P. R 1892. (Followed) 252 

Sita Ram v Ram Lai, 18 A. 410; A. VV. N. (1896) 
162; 8 Ind. Dec. (M. s ) 999. (Followed) ... 20 

Sitaramaswamy v. Dulla Lakshmi Narasamma, 
48 Ind. Gas. 840; 41 M. 510; 8 L. W. 21. (Dis- 
tinguished) ... 946 

Sivakolundu Pillai v. Ganapathy Iyer, 37 Ind. 
Cas. 964; (1917) M. W. N. 89. (Followed) . , 833 

Smith v. Lion Brewary Co , (1911) A. C. 150; 80 
L. J. K B. 566; 104 L. T. 321; 75 J. P. 273; 55 
S J 2<59; 27 T. L. R. 201; 5 Tax. Cas. 568. 
(Relied on) ... 943 

SofaollKhanv. Woopean Khan, 9 W. R. 123. 
(Followed) . 58 

Sonba v. Ganesha, 17 Ind. Cas. 887; 8 N. L. R. 
182. (Distinguished) ... 803 

Sowbagia Ammal v Manika Mudali, 42 Ind. Cas. 
975; 33 M, 601; 22 M. L. T. 386; (1917) M. W. 
N 782; 6 L W. 701. (Relied on) .. 497 

Sreenath Das v. Ghanashyara Naik, 46 Ind. Cas. 
534;3PLJ. 405 (Followed) ... 317 

Sri Krishna Doss v. Chandook Chan:), 4 Ind. Cas. 
509; 32 M. 334; 5 M. L. T. 125; 19 M. L. J. 307. 
(Relied on) ... 20 

Srinivasa Row v. Pichai Pillai, 21 Ind. Cas. 629; 
38 M 650; 25 M. L. J. 567. (Relied upon) ... 300 

Strong & Co. Ltd. v. Woodfield, (J8C6) A. C 448; 
75 L. J. K B. 864; 95 L. T. 2J1; 22 T. L. R. 754 
(Relied on) ... 943 

Subbaiya Pandaram v. Muhamad Mustapha Mar- 
acayar, 74 Ind. Cas. 4^2; 47 M. 751: 21 A. L. 
J. 730; A 1. R. 1923 P C. 175; 45 M. L. J. 588; 

25 Bom. L R. 1275; 18 L. W. 903; (1924) M W. 
N. 60: 28 C W N. 493; 2 Pat.L. R. 104; 33 M. 
L. T. 2^5; 40 C. L. J. 20; 50 I. A. 295 (P. C.). 
(Relied on) ... 342 

Subhadrayamma v.'Venkatapati, 80 Ind. Cas. 807; 
48 M. 230; A. I. R 1924 P C. 162; 47 M. L. J. 93; 

26 Bom. L. R. 786; 20 L. W. 298; (1924) M. W. 
N. 607; 29 C. W. N. 57; L. R. 5 A. (P C.) 147 

(P. C.). (Followed) ... 973 

Subrahmania Pathar v. Narayana Nayar, 24 M. 

130. (Relied upon) ... 394 

Subriunania Chettiar v. A'. 1 -. : : Chettiar, 80 M. 

268; 2 M. L. T. 189. (' ' . :, ... 782 

Subramania Chettiar v. Raja of Ramnad, 43 Ind. 

Cas. 187; 41 M. 327; 6 L/W. 762; (1917) M. W. 

N. 872; 34 M. L. J. 84. (Relied on) ... 497 

Subramanian v. Lutchman, 71 Ind. Cas 650; 50 j 

I. A. 77; A. I. R. 1923 P. C. 50; 44 M. L. J. 602; 

32 M. L. T. 184; 25 Bom. L. R. 582; 1 R. 66; 2 

Bur. L. J. 25; 3ft C. L. J. 41; 18 L. W. 446; (1923) 
M. W. N. 762; 28 C, W. N. 1; 50 C, 338 (P. 0.) 

(Followed) ... 948 



INDIAN OASES. 



[1986 



Subrao Mange^fc v. Mahadevi Bhatta, 21 Ind. Gas. 

330; 38 B. 105*at p, 110; 15 Bom." L. R. 848. 

(Dissent efl frdyi) \ 

Sundaresam Gh'ettiar v. Viswanatha Pandara 

Sannadhi/7& h*L Cas. 10^45 M?703; 31 M. L 

T 66- 16 L. jy\f3; 43 M. L J. 147; (1922>M! 

W N. 444; A. E R. 1922 M5d. 405. (Relied 

on) 481 

Sundaresam Chettiar v. Viswanatha Pandara 

Sannadhi, 72 Ind. Cs*103* 45 M, 703; 31 M>L. 

T 66- 16 L. W. 83;<43:M*L. J.*t7; (1922) M. W. 

N. 444; A. I. R. 1922 Mad. 402. (Followed) ... 
Sunder Lai v. Raghunandan Prasad, 83 Ind. Cas. 

413; 3 Pat. 253; 5 P. L. T. 133; A. I. R. 1921 Pat. 

465. (Dissented from} .. 

Surjumull Murlidhar Chandick v. Ananta Lai 

Damani, 74 Ind. Gas. 1029; 4(5 M 948; 45 M. L. 

J 399; 18 L. W. 485; (1923) M. W. N. 743; A. I. 

R. 1924 Mad. 352. (Relied upon) . 

Syed Ahmad v. Emperor, 22 Ind. Cas 163; 35 

A. 575; 11 A. L. J. 933; 15 Or. L. J. 19. (Fol- 
lowed) - 
Syud Mahomed Hossein v. Shaikh Montogul Haq, 

18 W. R. 440. (Distinguished) ... 



Tajbi Abalal v. Mowlakhan Alikhan, 29 Ind. 
Cas 603; 41 B. 485; 19 Bom. L. R. 300. (Fol- 

lowed) ' 

Tansuturi Sriramulu v. Nalam Krishna Row, 25 

Ind Cas. 1001; 38 M. 585; (1914) M W. N. 646; 

16 M. L. T. 303; 27 M. L. J. 589; 15 Or. L. J. 673. 

(Distinguished) 

Thadi Ramamurthi v. Moola Kamiah, 24 Ind. 

Cas 667; 16 M. L. T. 123; (1914) M. W. N. 733. 

(Followed) 

Thakur Prasad v. Fakir Ullah, 17 A. 106; 5 M. 

L J 3; 22 I. A. 44; 6 Sar. P. C. J. 526; 8 Ind. 

Dec. (N. s.) 393 (P. C.). (Relied on) .. 

Tafaluddi Peada v Mahar Ah bhaha, 26 C. 75; 

13 Ind. Dec. (N. s.) 654. (Followed) . . 

Tula Ram v. Tulshi Ram, 60 Ind. Cas. 3; 42 A. 

559- 18 A. L. J. 699. (Relied upon) . . 



5pr 

,520 

483 
504 

1046 
493 



82 



748 



50 * 



802 
948 
378 



Udhasimr v. Emperor, 35 Ind. Cas. 670; 10 S. 
L R. 69 at p. 71; 17 Cr. L J. 366. (Relied up- 

on) - 419 

Uma Charan Chakrabarti v. Nibaran Chandra 

Ohakrabarti, 75 Ind. Cas. 2; 37 C. L. J. 452; A. 

1 R 1923 Gal, 389. (Followed) 560 

United Telephone Co. v. Donohoo, (1886) 31 Ch. 

D 399;55L.J.Ch.480;54I,T. 31; 31W.B. 

326. (Distinguished) .- 562 

[ToendraNathNag Chowdhry v. Bhupendra hath 

Nag Chpwdhry, 9 Ind. Cas. 582; 13 C. L. J. 157. 

(Distinguished) 

Jeher's Wiltshire Brewary Co. v. Bruce, (1915) 

A O 433' 84 L. J. K. B. 417; 112 L T. 651; 6 

TaxOas/399; 59 S, J. 144; 31 T. L. R. 104. 

(Relied on) ... 



940 



943 



V concld. 



Page. 



Vaidyanatha Ayyar v. Swaminatha Ayyar, 82 Ind. 
Cas. 804; 47 M. 884; 47 M. L. J. 361; 35 M. L. T. 
189; A. I. K. 1924 P. C. 221; (1924) M. W. N 749; 
10 O. & A. L. R. 1076; 26 Bom. L. R. 1121; 20 

- L. W. 803; 22 A. L. J. 983; 40 C. L. J. 454; 29 
C. W. N. 154; 51 I. A 282; 26 P. L. R. 1; L. 
R. A. (>. C.) 17; 1 O. W. N. 617 (P. C.) (Re- 
lied on) .. 950 

Vaithinatha Aiyar v. T-: iyn^.-ir/iia Aiyar, 68 
Ind. Cas. G31; 41 M. L. J. 20 at. p. 29. (Fol- 
lowed) ... 516 

Varada Pillai v. eTosvarathnammal, 53 Ind. Cas. 
901; 43 M. 244; (1919) M. W. N. 724; 10 L. W. 
679; 24 C. W. N. 346; 38 M. L. J. 313; 18 A. L. J. 
274; 46 I. A. 28j; 2 V. P. L. R. (P. C ) 61; 22 
Bom. L. K. 411 (P. C ). (Followed) ... 99 

Vasudevan Nambudri v. Mammod, 22 M. 212; 8 
Ind. Doc. (N. s.) 151. (Distinguished) .. 968 

Velayutha Muppan v. Subramanian Chetti. 18 
Ind. Cas. 498; 2U M L J. 70; 13 M. L. T. 207; 
(1913) M. W. N. 130 (Followed) ... 833 

Vembu Iyer v. Srinirasa lyengar, 17 Ind, Cas. 609; 
2,'i M. L. J. 638 at p. 016; 12 M. L. T. 547. (Re- 
lied on) . . 827 

Venkata Jagannadha v. Veerabhadrayya, 61 Ind. 
Cas. 667; 44 M 613; 41 M. L J. 1; 34 C. L. J. 
16; 14 L. W. 59; (1921) M. W. N. 401; 30 M. L. 
T. It; 26 C. W. N. 302; A. I. R. 1922 P. C. 9G; 
48 I. A. 244 (P. C ). (Relied on) ... 472 

Vcnkateswara Aiyar v. Somasundrarn Chettiar, 44 
Ind. CUs 551; 7 L. W. 280; (1918) M. W. N. 214. 
(Relied on) .. 405 

Venkati Kama Reddi v. Pillati Rama Reddi, 38 
Ind. Cas 707; 40 M. 204; 31 M. L. J. 690; 4 L. 
W. 465; 20 M. L. T. 450; (1917) M. W. N. 112. 
(Followed) . . 479 

Vishnu Vishvanath Niukar v. Ramchandra Sada- 
shiv Ninkar, 73 Ind. Cas 1017; 25 Bom. L. R. 
508; A. I. R. 1923 Bom. 453. (Distinguished) ... 378 

W 

Walkar v. Frobisher, (1801) 6 Ves. Jur. 70; 31 E. 

R. 943; 5 R. R. 223. (Relied on) . . 792 

Wallingford v Mutual Society, .1880) 5 A. C. 685; 

50 L. J. Q. B. 49; 43 L. T. 258; 29 W. R. 81. 

(Distinguished) ... 968 

Wazir v. Girdhari, 71 Ind. Cas. 847; A. I. R. 1923 

Lah. 311. (Followed) ... 980 

William Cecil Keyiner v. Emperor, 22 Ind. Cas. 

145; 36 A. 53; 12 A. L. J. 1; 15 Cr. L. J 1. 

(Followed) - ..895 

Williams v. Millington, (1788) 2 R. R. 724; 1 H. 

Bl. 81; 126 E. R. 49. (Relied upon) ... 394 

Williams & Co., In re\ Official Receiver, Ex parfc, 

(1913) 2K. B. 88; 82 L. J. K. B. 459; 108 L. T. 

585; 20 Mauson 21; 57 S. J. 285; 29 T. L. R. 24?. 

(Followed) ... 620 

Wilmott v. Barber, (1880) 15 Ch. D. 96; 43 L. T. 

95; 28 W. R. 911. (Followed) ... 1017 

Wolmershauseri v. Gullick, (1893) 2 Ch. 514; 3 

R. 610; 68 L. T. 753. (Relied on) 715 

Zain-ul-Abdin Khan v Muhammad Asghar Ali 

Khan, 10 A. 166; 15 1. A. 12; 5 Sar. P. 0. J. 139; . 

6 Ind. Dec. (s. 8.) 112 (P. C.). (Followed) , ... 803 



Zohrav. Mangu Lai, 28 A. 753; 3 A. L. J. 569; A. 
W. N. (1906) 223 (F.B.). (Followed) - 282 



INDIA 




VOLUM 



ALLAHABAD HIGH COURT. 

SECOND CIVIL APPEAL No. 1628 OF 1924. 

December 11, 1925. 
Present : Mr. Justice Walsh and 

Mr. Justice Kanhaiya Lai. 
JAGRUP SINGH PLAINTIFF- 
APPELLANT 

versus 

INDRASAN PANDE AND OTHERS 
DEFENDANTS RESPONDENTS. 

Agra Pre-emption Act (XT of J922), s. 12 (#) 
Person "claiming pre-emption," meaning of Vendee, 
or intended vendee, whether included. 

The vendee, or proposed vendee, or contemplated 
vendee, or intended vendee, is a person "claiming pre- 
emption" within the meaning of the clause "more 
persons than one of the same class claiming pre- 
emption 11 in a. 12 (3) of the Agra Pre-emption Act. [p. 
1, col. 1.] 

Iswar Datt Upadhiya v. Mahesh Datt Upadhiya, 89 
Ind. Gas. 114; 23 A. : L. J. 802; L. It. 6 A. 451 Civ.; 
(1925) A. 1. R. (A.) 747, followed. 

The. ordinary meaning of "to pre-empt" is to pur- 
chase in preference to others, that is to say, even of 
the whole world, and pre-emption is the effect of the 
purchase. The vendee, if he is successful in the end 
over other competitors, does in fact pre-empt and is, 
therefore, properly spoken of as a person claiming 
pre-emption, [p. 1, col. 2.] 

Second appeal from a decree of the Ad- 
ditional Subordinate Judge, Azamgarh, 
dated the 30th July 1924. 
Mr. P. L. Banerji, for the Appellant. 
Dr. S. N. Sen, for the Respondents. 
JUDGMENT. This appeal raises a 
simple question of law on the construction 
of s. 12 sub-s. (3) of the new Pre-emption 
Act. That question is this. The sub-section 
providing that in a case "where there are 
more persons than one of the same class 
claiming pre-emption, 11 is the vendee, or 
proposed vendee, or contemplated vendee, 
or intended vendee, a person claiming pre- 
efiption within the meaning of the section. 
In the case of Iswar Datt Upadhiya v. 
M&hesk Datt Upadhiya (1) a Division Bench 



(1) 89 Ind. 0*s. 114; 23 A. L. J, I 
iv,; (1925) A. I. R, (A.) 747, 

1 



L. R, 6 A, 451 



of this Court, including one member of the 
Court now sitting, has decided that question 
in the affirmative. Nothing is more im- 
portant in connection with this question 
and with the new Act than that the deci- 
sions of this Court should be consistent, 
and, unless there were some very strong 
reasons compelling us to take a different 
view, we should prefer to follow the view 
taken in the case just cited. In that case 
for some reason the respondents were un- 
represented, and it might be said that that 
fact, to some extent, detracts from the 
authority of the decision because the appeal 
was allowed in their absence. But in this 
case the respondents have had the ad- 
vantage of Dr. Sen to represent them and 
we do not think that anything could be 
said on behalf of the other view which has 
not already been said. We agree with the 
decision, however, on this further ground. 
The ordinary meaning of "to pre empt 1 ' is 
to purchase in preference to others, that is 
to say, even of the whole world, and pre- 
emption is the effect of the purchase. The 
vendee, if he is successful in the end over 
other competitors, does in fact pre-empt 
and is, therefore, properly spoken of as a 
person claiming pre-emption. It has been 
pointed out to us on behalf of the appel- 
lant that whereas "the right of pre emp- 
tion" is spoken of in other parts of the Act, 
in this particular sub-section the word used 
with reference to what is being claimed is 
simply pre-emption. We are further of 
^opinion that this interpretation satisfies 
another test, namely, the true construction 
of s. 10 where it is quite obvious that the 
expression "equal 11 or "inferior 11 right of 
pre-em ption is used with reference to the 
vendee. We can understand how it was 
that the Courts below came to the decision 
they did. The authority to which we have 
referred had not then been reported. It 



SHEO CHAttAN SINGH r. KI8HNO KOEfe. 



has been found that the plaintiff is related 
1o one of the vendors and the husband*' 61 
Ihe other vendor within four degrees. The' 
wajib ul-arz filed shows that the property 
in question was obtained by one of the 
vendors and the husband of the other 
vendor from their fathers respectively, who 
were own brothers. The appeal must be 
allowed and the suit decreed subject to the 
condition that the plaintiff is required to 
pay Rs. 1,320, on account of the sale consi- 
deration, found by the Courts below, 
within two months from this date. If such 
payment is made he will get his costs here 
and hitherto including fees in this Court on 
the higher scale -from the defendant vendee. 
If he fails to pay, his suit shall stand dis- 
missed with costs here and below, includ- 
ing fees in this Court on the higher scale. 
N. H. Appeal allowed. 



PATNA HIGH COURT. 

CIVIL REVISION No. 95 OF 1925. 

June 4, 1925. 

Present: Justice Sir John Bucknill, KT. 
SHEO CHARAN SINGH DECREE- 
HOLDER PETITIONER 

versus 

KISHNO KUER AND ANOTHER 
JUDGMENT-DEBTORS OPPOSITE PARTY. 
Civil Procedure Code (Act (V of /0M), () XXI, 
rr. C>6> 72 Execution of decree Sale --Decree-holder, 
whether bound to bid up to any fixed sum. 

There is no legal necessity for a bidder at an 
auction-sale, whether he be tho decree-holder or an 
outsider, to purchase the property at the full price at 
\vhick it may have been valued in the sale proclama- 
tion. On the contrary, the value of the property is 
really only that which it will actually letch, assuming 
t hat there is no fraud or malpractice with regard to 
the bidders and that the sale has been reasonably and 
properly made public, [p. 2, col. 2.J 

Application against an order of the 
District Judge, Gaya, dated the 16th Feb- 
ruary 1925, against that of the Munsif, 
First Court, Gaya. 

Mr. Brij Kishore Prasad, for the Peti- 
tioner. 

Mr. Siva Nandan Rai, for the Opposite 
Party 

JUDGMENT. 

Bucknill, J, This is an application 
in civil revisional jurisdiction made to 
this Court under somewhat curious circum- 
stances. 

The applicant obtained a decree for rent 
against the opposite party here in the 



[921.0.1926] 

Court of the Munsif of the first Court of 
Gaya, Having obtained his decree he then 
-applied for execution. It would seem that 
there were four properties which were put 
up for sale and the Court allowed the 
decree- holder (that is, the applicant here) 
to bid for the properties at the sale. There 
seems no doubt that the valuation which 
was put on the properties was, that the first 
was put at Rs. 46, the second at Rs. 1,470, 
the third at Rs. 3,075 and the fourth at Rs. 55. 
There is nothing on the record or before me 
to indicate in ary way that the sale procla- 
mations were not duly published and in 
fact on the 21st January last the sale was 
proceeded with. It would appear from the 
record that there were other bidders besides 
the decree-holder. Now the Munsif made 
a curious order on the 22nd of January, 
that is to say, the day after the sale. He 
placed in his order-sheet the following 
words : 

" Decree-holder did not bid for the valua- 
tion fixed by the Court. The case is dis- 
missed, vide order passed on the sale pro- 
clamation." 

When - we turned to the sale proclama- 
tion we saw that the note or order there 
reads : 

"The decree-holder does not wish to' bid 
up to the value fixed by the Court. The 
property on sale is 28*45 acres nakli, 
hhaoli and belagan lands. The decree is 
for Rs. 5G6-9. lie wants to purchase the 
property for a nominal value. This cannot 
be allowed ; as the decree-holder does not 
care to bid for more, so I dismiss the 
case/ 1 

Now it is very difficult to see how on the 
language of these two orders it was really 
altogether open to the Munsif to adopt 
the course which he did. I do not know 
that there is any legal necessity for a bidder 
at an auction-sale, whether he be a decree- 
holder at whose instance the property being 
sold is being put up for sale or whether 
he be an outside person, to purchase the 
property at the full price at which it may 
have been valued in the sale proclamation. 
On the contrary it would seem that after 
all the value of the property which is thus 
put up to auction is really only that which 
it will actually -fetch at that auction as- 
suming, of course, that there is no fraud or 
malpractice with regard to the bidders and 
that the sale has been reasonably afcd pro- 
perly made public. I have no doubt that 
there is a good deal of force in what is 



[92 I. 0. 1926J 



KALKA VttASAD V. PANNA. 



urged by the learned Vakil who appeared 
for the opposite party, namely, that owing 
to there being a number of sales conducted 
oa the same day it was not very feasible 
for the Munsif to have recorded at great 
length his reasons for his order in the 
order-sheet. There is nothing except the 
suggestion contained in the order which 
is endorsed on the sale proclamation where 
the Munsif says that the decree-holder 
wants to purchase the property for a nomi- 
nal value which leads one to suppose that 
there was anything improper or wrong in 
the way in which the sale had been made 
public or in the way in which the bids took 
place. On the other hand, there is certain- 
ly this to be said in favour of the Munsif s 
view, namely, that so far as the second 
property was concerned the amount which 
was in fact bid was a very trilling one 
compared with the value which was put 
upon the property in itself. In that in- 
stance it will be observed that whilst the 
value was Rs. 1,470 the price bid was 
Rs. 232. As regards the third property put 
up for sale the difference was very much 
worse ; for, there, whilst the value was 
Ks. 3,075 the bid for it was Rs. 231. What 
I think the Munaif should have done was 
to have expressed his views as to the un- 
satisfactory nature of the sale in clearer 
terms and to have given his reasons which 
ought to be substantial ones for declining 
to proceed with the sale. I do not think 
that the reasons which he has given are 
good reasons for dismissing the execution 
casa ; for, so far as we can see, the decree- 
holder had done nothing really wrong in 
refusing to bid up to the total valu3 which 
had been fixed on the property. I think 
the Munsif s order should have been, after 
having set out his reasons, to have ordered 
that there should be an issue of a frsh 
sale proclamation under circumstances of 
proper publicity which would ensure that 
at the next auction when the property 
should be put up for sale there should be 
suitable bidders. Under such conditions 
no doubt the properties Wv)uld fetch what- 
ever they were really worth and what the 
public was ready to pay for them. It may 
ba said with regard to the 1st and 4th 
properties that the prices which were offer- 
ed were substantially equivalent to the 
prices at which the two properties were 
valued and that is certainly so. At the 
same time these two properties are of very 
little account aggregating just Rs. 101 



in value. It does not, therefore, seem desir- 
able to split these two properties away from 
the other two or to regard the two pro- 
perties entirely separate!} 7 . 

I should mention that after the decision 
by the Munsif it would seem that the 
decree-holder preferred some sort of appeal 
to the District Judge of Gaya. What 
exactly happened before the District Judge 
it is difficult to understand. From the 
order- sheet of the 5th February there 
seems to be a note by the serishatadar 
saying that the order complained of is not 
appealable (vide O. XLIII, r. 1 and s. 104, 
0. P. C.) On the same day the District 
Judge minutes: " put up in presence of 
Pleader." No date is mentioned as to when 
it should be put up. But on the 16th Feb- 
ruary we get an order of the District Judge 
"Pleader absent. File/' Whether this is 
tantamount to the dismissal of the appeal 
or whether this is tantamount to the ad- 
journment of it I do not know. However, 
to my mind the conclusion is after all the 
same, for although the matter has come up 
to this Court by way of complaint against 
what appears to have been the serishtadars 
order of the 5th February, there is also a 
complaint quite clearly made that the order 
which the Munsif passed on the 22nd Jan- 
uary was illegal. I have no hesitation in 
coming to the conclusion that the order 
which was passed by the Munsif on the 
22nd January is an unsatisfactory one. 

It must be set aside and the Munsif 
ordered to re-instate ; the execution case, 
to direct that a new sale proclamation shall 
be issued and that such precautions should 
be taken with regard to the publicity of 
the conditions under which the sale will 
be held so as to ensure that a reasonable 
and proper sale will be held upon the date 
fixed. There will be no order for costs in 
this application. 

z. K. Order accordingly. 



ALLAHABAD HIGH COURT. 

SECOND CIVIL APPEAL No. 1642 OF 1925. 

December 11, 1925. 
Present : Mr. Justice Sulaiman. 
KALKA PRASAD PLAINTIFF 
APPELLANT 

versus 
PANNA DEFENDANT RESPONDENT. 

Agra Tenancy Act (II of 1901), ss. 175, 182 Dis* 
trict Judge, order of Appeal, third, ~ to High Court 
whether lies. 



PA1VATIBAI TfetM&AKRAO fc. viSMVANAtfl kHAfoDfeRAO RAST& [92 I. 0. 1926] 



Section 182 of the Agra Tenancy Act only allows u 
second appeal to the High Court and not a third 
appeal. 

Therefore, no appeal lies to the High Court from an 
order passed by the District Judge on ail appeal from 
an appellate order of a Collector. 

Lachmi Narain v. Nirotam Das, A. W. N. (1906) 
272; 29 A. 69; 3 A. L. J. 688, followed. 

Chhajmal Das v. Sirya, A. W. N. (1906) 254, 3 A. L. 
J. (v25, not followed. 

Second appeal against a decree of the Dis- 
trict Judge, Jhansi, dated the 22nd of 
August 1925. 

Mr. S. N. Varma, for the Appellant. 

JUDGMENT* This purports to be 
an appeal from an order passed by the 
District Judge on an appeal from an appel- 
late order of a Collector. Thus it is a third 
appeal to the High Court. Section 182 of 
the Agfa Tenancy Act only allows a second 
appeal to the High Court and not a third 
appeal. Section 175 bars all appeals which 
are not provided for. It is, therefore, clear 
that the appeal does not lie. 

The learned Vakil for the appellant re- 
lies on the case of Chhajmal Das v. Sirya 
(1) where a learned Judge of . this Court 
entertained a third appeal. That case 
was contrary to the decision in Lachmi 
Narain v. Nirotam Das (2) reported in the 
same volume at page 251, and must be 
deemed to have by implication been over- 
ruled by the decision of the Bench in the 
case of Lachmi Narain v. Nirotam Das 
(3) reported in the same volume at page 272, 
As no appeal lies, this appeal is 'according- 
ly dismissed under O. XLI, r. 11 

N. H. Appeal dismissed. 

(1) A. W. N. (1906) 254; 3 A. L. J. 625. 

(2) A. W. N. (1906) 251, 3 A. L. J. 623. 

(3) A. W. N. (1906) 272; 29 A. 69; 3 A, L. J. 688. 



BOMBAY HIGH COURT. 

FIRST CIVIL APPEAL No. 150 OF 1924. 

September 1, 1925. 

Present: Sir Norman Macleod, KT., 

Chief Justice, and Mr. Justice Coyajee. 

PARVAT1BAI TR1MBAKHAO 

PATYARDHAN PLAINTIFF 

APPBLLANT 

versus 

VI8HVANATH KHANDERAO HASTE 
DEFENDANT RESPONDENT. 

Hindu Law Adoption Agreement between adoptive 
and natural fathers reserving right of making Will to 
adoptive father, legality of. 

An agreement between the adoptive father and the 
natural father of the minor about to be adopted, made 



at the time of adoption, -wliereby full powers are 
reserved to the adoptive father to dispose of the family 
pioperlitid by Will, is not valid according to the Hindu* 
Law and is not binding on the adopted son. [p. 4, 
col. 2.] 

First appeal from the decision of the 
First Claes Subordinate Judge at Poona, in 
Suit No. 1021 of 19*1. 

Mr. P. B. Shingne, for the Appellant. 

Mr. G. N. Thakor, (with him Mr. W. B. 
Pradhan), for the Respondent. 

JUDGMENT* The plaintiff sued to 
recover Rs. 6,580 with costs of the suit and 
future interest at six per cent from the 
estate of the deceased testator Rao Badadur 
Khanderao Vishwanth Raste in the hands 
of the defendant. The plaintiff claimed this 
amount as the arrears of annuity of Rs. 400 
a year payable to her under the Will of her 
deceased father. 

The claim has been dismissed by the 
lower Court on various grounds, and we 
think that this appeal can be disposed of in 
a very simple manner. 

The defendant was adopted in 1896, and 
Ex. 82, the tharavpatra, was executed at 
the time as constituting an agreement be- 
tween the natural father of the defendant, 
who was then a minor, and the adoptive 
father. One clause of the agreement was 
to this effect that the adoptive father had 
made a Will; that the adopted boy should 
act up to the terms of the Will, and in case 
the adoptive father made other Wills, 
the adopted son should behave according 
to the terms of the other Wills. That 
clause in effect gave the adoptive father 
an absolute right to dispose of all his pro- 
perty even after the adoption in any way 
he pleased. The Will under which the 
plaintiff claimed \* as made after the adop- 
tion. At that time the joint family consist- 
ed of adoptive father and the adopted son, 
and according to llidnu Law the father 
would have no power to make dispositions 
by Will of the joint family property. 

We do not think an agreement of this 
nature is in consonance with the principles 
of Hindu Law with regard to agreements 
which can be made at the time of the adop- 
tion between the adoptive father and the 
natural father of the boy taken in adop- 
t.on. The result of such an agreement 
would be that the adopted eon would lose 
his right in his natural family, and would 
either acquire no rights at all, or would 
only acquire rights which were liable to be 
defeated, in his new family. The appel- 
lant being aware of the difficulty of the 



[92 I. 0. 1926] 



OFFICIAL REC1EVBR V. LACHM1BAI, 



tharavpatra endeavoured to rely upon the 
payments made to her by the adoptive 
father before he died. Huch payments, 
which, as a matter of fact, were not disputed 
by the adopted son and had never been 
disputed since the death of the adoptive 
father, could only be considered as gifts 
in prccsenti of certain cash, and could not 
possibly constitute a claim to anything in 
the nature of aay annuity. 

We agree with the Judge that Ex. 82 
offended against the law of minors and the 
general principles of Hindu Law as regards 
adoption. We, therefore, dismiss the ap- 
peal with costs. 

z. K. Appeal dismissed. 



SIND JUDICIAL COMMIS- 
SIONER'S COURT. 

JUDICIAL MISCELLANEOUS APPLICATION 

No. 329 OF 1923. 

September 22, 1925. 

Present: Mr. Rupchand Bilaram, 

A. J. C. 
OFFICIAL RECEIVERAPPLICANT 

versus 
LACHMIBAI OfPONENT. 

Provincial Insolvency Act (V of W20), ss. ,53, 5|, 
difference between Encumbrance created within two 
yean of adjudication Consideration Good faith 
Burden of proof 

Where an incumbrance created by an insolvert 
within two years of his adjudication, is challenged m 
the Insolvency Court the onus lies on the incumbran- 
cer to prove both good faith and valuable considera- 
tion, [p. 6, col 1.] 

Official Assignee of Madras v. Annapumammal, 20 
Ind. Cas 901; 14 M L. T. 150, Anantarama Aiyar v 
~\us8nfji Oomer Sahib, 36 Ind Cas. U03, 31 M. L. J 
133; (1916) 2 M. W. N 236, Official Assignee of Madras 
v. Sambanda Mudahar, 60 Ind. Cas. 205, 43 M 739, 39 
M L.J. 345; 28 M. L. T. 258, Nilmont Chowdhuri v 
Basanta Kumer Banerjee, 29 Ind. Cas. 814; 19 C W. 
N. 865 and Muhammad Habibullah v. Mushtaq Hu&atn, 
37 -Ind. Cas. 684, 14 A. L. J, 1183, 39 A. 95, relied 
upon. 

There is a radical difference between 8. 53 and s. 54 
of the Provincial Insolvency Act. Under s. 54 the 
Court is not concerned with the motive of the trans- 
feree but only with that of the debtor. It is he who id 
said to have given the preference and whether the trans- 
feree acted in good faith or not is immaterial. Where, 
however, the three months 1 limitation contemplated by 
s. 54 has expired, it is open to the transferee to prove 
that whatever the motive of the transferor may have 
been, he on his part acted in good faith. And where 
the consideration of the transfer is a past debt the 
transferee stands in a better position than otherwise. 
He has hia own interests to serve ando^es no duty 
to the ether creditors to protect their interests. He is 
in the absence of any statutory limitation imposed by 



the Law of Bankruptcy, as much at liberty to secure 
the payment of his debt by superior diligence as by 
accepting a voluntary preference provided he goes no 
further than what is necessary to serve his own pur* 
pose [p. 8, col. 1.] 

Hakim Lai v. Mooshahar Sahu, 34 C. 999 at p. 1018; 
11 O W. N. 889; C. L. J. 410, relied upon. 

Official Assignee of Bengal v. Yokohama Specie 
Bank, Ltd , 87 Ind. Gas. 392; 29 C. W. N. 374, (1925; 
A. I. R. (C.) 640, referred to. 

Application under s. 53 of the Provincial 
Insolvency Act. 

Mr, Dingomal Narainsing, for the Official 
Receiver. 

Mr. Kimatrai Bhojraj, for the Alienee. 

Mr. Srikishendas (J. Lulla, for the Insol- 
vent. 

JUDGMENT. The Official Receiver 
has applied under s. 53 of the Provincial 
Insolvency Act for annulment of a, mort- 
gage-deed executed by the two insolvent 
brothers Valabdas and Sunderdas on the 
1st September 1921 in favour of their pa- 
ternal aunt Lachmibai. The two brothers 
belong to Shikarpur. They carried on 
business at Karachi with the aid of gumash- 
tas in the firm name of Naraindas-Sunder- 
das; Naraindas being their father who died 
in 1916. The deed recites that Jamnadas 
husband of the mortgagee had an account 
with the firm of Naraindas Sunderdas; on 
which a sum exceeding Rs. 14,000 was due 
to him and that he had advanced a further 
sum of Rs. 10,000 to the two brothers 
on 28th March 1921 and the two brothers 
had by a letter dated 17th May 1921 agreed 
with Jamnadas to mortgage to him a half 
undivided share in their residential house 
at Shikarpur in the sum of Rs. 24,000 
made up of the two sums of Rs. 14,000 
and 10,000 and that Jamnadas having 
died on 25th May 1921 the mortgagors had 
in consequence of the arrangement made 
with Jamnadas executed the mortgage- 
deed in favour of his widow and legal re- 
presentative. 

The two brothers were adjudicated as 
insolvents o i llth December 19^2 in pur- 
suance of an application presented to this 
Court on 31st October 1922 by one of the 
creditors of the insolvents. The incumb- 
rance purported to have been created by the 
mortgage-deed, assuming it to have been 
in pursuance of the letter dated 17th May 
1921, is within two years of the order of 
adjudication. 

Section 53 of the Provincial Insolvency 
Act is a re-enac'tment ipsissimis verb is of 
s. 36 of the Provincial Insolvency Act of 
1907 and the exception contained iu s, 36 



OFFICIAL RECEIVER V. LACHM1BAI. 



of the old Act in favour of u an incumb- 
rancer in good faith and for valuable con- 
sideration" and a similar exception contain- 
ed in s. 55 of the Presidency Towns Insol- 
vency Act have been the subject of judicial 
interpretation. It has been consistently 
held by the different High Courtsthat where 
an incumbrance made within two years 
of adjudication is challenged in the In- 
solvency Court the onus lies on the in- 
cumbrancer to prove both good faith and 
valuable consideration, cf. Official As- 
signee of Madras v. Annapurnammal 
(1), Anantarama Aiyar v. Yussufji 
Oomer Sahib (2), Official Assignee of Madras 
v. Sambanda Mudaliar (3) and Nilmoni 
Chowdhuri v. Basanta Kumer Ranerjee (1), 
Muhammad Habibullali v. Mushtaq Ilusain 
(5). 

It has not been seriously disputed that 
the same considerations apply to s. 53 and 
that it is for the opponent to prove both 
valuable consideration and good faith in 
order to entitle him to succeed. 

The evidence of the consideration for the 
deed appears to be fairly strong and con- 
clusive. 

The insolvents carried on their business 
with the aid of gumashta and maintained 
regular books of account. They have pro- 
duced their books from Sambat 1974 on- 
wards. These books show large sums of 
money due to Jamnadas from time to time. 
The balances due to him when the account 
books of Sambats 1974, 1976, 1977 and 1978 
were closed and fresh account books kept 
were Rs. 16,956-12-9, Rs. 14,725-0-6, 
Rs.13,887-8-6 and Rs.15,195-7-9 respectively. 
No amounts appear to have been withdrawn 
by Jamnadas in Sambat 1974 or the year 
1921. There are correspond ing entries in the 
account books kept by Jamnadas himself. 
Exhibits 16 to 18 are the entries in his books. 
Exhibit 19 is a Vatak or memo, of account 
prepared by the insolvents 1 gumashtas and 
handed over to Jamnadas in the usual 
course of business and prove a similar in- 
debtedness 6f the insolvents to Jamnadas. 
No evidence has been called in rebuttal to 
prove that about Rs. 15,000 were not 
due to Jamnadas by the insolvents 1 Karachi 
firm. 

(1) 20 Ind, Gas, 901; 14 M. L T 150, 

(2) 36 Ind. Gas. 903, 31 M. L. J. 133, (1916) 2 M W 
N.236. ' ' ' 

(3) 60 Ind. Gas. 205; 43 M. 739, 39 M. L J 345- 28 
M.L.T. 258, 

(4) 29 Ind. Gas. 814; 19 G W. N 865 

(5) 37 Ind. Cas. 684; M A, L. J. 1183; 39 A. 95 



[92 I. C. 1926j 

It would also appear that Jamnadas had 
a banking account with the firm of Pirbdas 
Kanayalal of Shikarpur who had a branch 
lirin in Bombay as well. Another Shikar- 
puri firm carrying on business at Bombay 
in the name of Tejbhandas Thoriomal had 
a branch firm at Karachi of the same name. 
A sum of Rs. 10,000 was paid by the 
firm of Pirbdas-Kanayalal at Bombay to the 
linn of Tejbhandas Thariomal of Bombay 
on behalf of and under instructions from 
Jamnadas. The Karachi branch firm of 
Tejbhandas-Thariomal appear in their turn 
to have paid the Rs. 10,000 to the insolv- 
ents on 26th March 1921. Harbhagwandas 
the Manager of the Bombay Branch of 
Pirbdas Kanayalal has produced an entry 
from sahi book of his firm of the payment 
of Rs. 10,000 to the firm of Tejbhandas 
Thariomal on account of Jamnadas and 
duly signed by him. The AT :!.! z part- 
Ler of Pirbdas Kanayalal biniuirpur has 
produced a debit entry Ex. 9-1 from his 
Shikarpur books showing that Rs. 10,000 
were duly debited to Jamnadas' account in 
their books. Pahlajrai, the present Manager 
of the Karachi branch of Tejbhandas 
Thariomal, has put in an entry from his 
cash book of the payment of Rs. 10,000 
to the insolvents' firm which is signed by 
their gumashta Gobindo, and has also 
produced the letter, Ex. 13, given by Jam- 
nadas to them, authorising them to pay 
Rs. 10,000 to the insolvents. The 
insolvent Valabdas has explained that this 
sum of Rs. 10,000 was an advance to the 
insolvents and not to their firm. It was, 
therefore, credited in their gharoo (private) 
books as paid to them by Jhamnadas and 
then transferred by them in their capital 
account in the shop books as an advance 
fromthem. Exhibits 22 to 25 are entries in the 
insolvents gharoo books. Exhibits 2(> and 27 
are the corresponding entries in their firm 
books. The sum of Rs, 10,000 was in- 
dubitably paid by the insolvents to their 
firm as part of the capital and had been 
duly accounted for. It has not been shown 
that the insolvents had any other source 
where from to bring the Rs. 10,000. 1, 
therefore, hold that the mortgage deed is 
for valuable consideration. 

An attempt was made on behalf of the 
opponent to prove that at the time of the 
further advance of Rs. 10,000 the insol- 
vents had agreed to execute a deed of 
moitgage in favour of Jamnadas. The only 
evidence on this point is t^e statement 04: 



[92 I. 0. 1926 j 



OFFICIAL RECEIVER V. LACiUJlBAT, 



the insolvent Valabdas. I have no hesita- 
tion in holding that his evidence on this 
point is false. There is no mention of the 
alleged oral agreement in the letter, Kx, 7-2, 
which is said to have been given by him to 
Jamnadas on 17th May 1921. The whole 
tenor of this letter shows that there could 
have been no oral agreement between the 
.parties to create a mortgage prior to this 
letter. It recites that a sum of Us. 15,000 
or 10,000 were due by the insolvents' 
firm to Jamnadas and that the insolvents 
had taken from him a further sum of 
Rs. 10,000 which lie had sent for from 
the firm of Pribdas Kanayalal at IJombtiy 
thiough Tejbhandas Thariomal and that 
about Rs. 25,000 or 2t>,()0l) plus interest 
were due by them and then it recites as 
follows: 

"On account of the same we have under- 
taken lo mortgage with you without posses- 
sion the half portion of our house for 
Us. 24,000 in words twenty four thousand. 
Whenever you choose deed will be executed 
in your favour and registered. We have 
agreed to execute fora period of five years, 
The interest will be paid at the xate of 8 
annas per cent., per mensem. Therefore, 
this chit is given to you in writing/' 

If there was a prior oral agreement one 
would have found specific mention of it in 
this letter. There is no mention of this 
oral agreement in the mortgage deed either. 
The explanation of Valabdas as to the 
reason why he did not pass this writing in 
favour of Jamnadas at the time of the 
advance is preposterous, lie states that at 
that time it was arranged that insolvents 
were to give in mortgage to Jamnadas such 
of their properties as he might select and it 
was only after Jamnadas made his selection 
that he passed the letter Kx. 7-2. Jamnadas 
was their uncle and knew all about their 
property and this delay of about one month 
and 24 days to make the selection is un- 
accountable. 

It would appear from the evidence that 
the insolvents were in financial difficulties 
from the end of 1920. They traded in piece- 
goods and had bought both on the sterling 
and rupee basis large quantities of cloth 
for forward delivery at a time when the 
exchange had risen to over 2 shillings to the 
rupee. In December 1920 the exchange 
dropped down to 1 shilling 5 pence thereby 
seriously affecting the insolvents. The price 
of cloth purchased on the rupee basis had 



also gone down to a certain extent through 
other causes. 

In December 1920 they sold some of their 
property to Pirbdas Kanayalal to keep them 
going and it appears that in March 1921 
they either borrowed from Jamnadas the 
sum of Rs. 10,000 or appropriated to 
themselves this sum which 'had been paid to 
them by Tejbhandas Thariomal on account 
of Jarnnadas, and used this amount for the 
same purpose. They evidently expected 
the exchange to go up and thx* prices to rise. 
They appear to have taken some deliveries 
of piecegoods upto April 1921 though such 
deliveries were not so brisk. The exchange 
instead of showing any improvement grew 
from bad to worse and in May 1921 Messrs. 
Kahn and Kahn through whom the insolv- 
ents had imported large quantities of piece- 
goods fixed the exchange in respect of all 
the insolvents goods at 1 shilling 3| pence. 
The fixing of the exchange by Messrs. Kahn 
and Kahn deprived them of all chances of 
reducing their estimated losses by a rise in 
exchange. The estimated loss due to Messrs. 
Kahn and Kahn at this date was about a 
lac of rupees. They had other losses to 
pay. Their attempts to execute certain 
transfers in favour of their relations and 
particularly their submitting to an award 
in favour of their mother followed by a 
consent decree which is the subject matter 
of another application appear to be all sub- 
sequent to this date. lam of the opinion that 
the promise if any made by the insolvents 
to Jamnadas to secure his claim was made 
in May 1921 and not at the time of alleged 
advance of Rs. 10,000. 

I entertain some doubts if Ex. 7-2 is the 
letter handed over by Valabdas to Jamha- 
das at the time it purports to have been 
written. It refers to a half share of the 
house being given in mortgage. The 
insolvents owned at that time the whole 
house. The award transferring half of this 
house to their mother is dated July 1921. 
No explanation has been offered why the in- 
solvents agreed in May 1921 to mortgage 
only a half share of the house to Jamnadas 
unless it be assumed that before this letter 
was given the insolvents had agreed to 
give the other half to their mother. The 
opponent has lelied on a recital made in 
the alleged Will of Jamnadas Ex. 7-1 which 
is said to have been made on 2 1st May 1921 
about the writing given to Jamnadas. This 
genuineness of this Will is being litigated 
in another Court and I do not propose to 



8 



OFFICIAL KECBIVER V. L4CHMIRAI. 



(92 I. 0. 1926] 



discuss the evidence as to its genuineness 
in the present proceedings* Clause 5 of this 
Will assuming it to be genuine does not 
give the purport of the letter passed in 
favour of Jamnadas and is inconclusive. It 
is not necessray for the purpose of this 
case to hold definitely if p]x, 7-2 is the 
letter given to Jamnadas, Whether the 
insolvents promised on the 17th May 1921 
with Jamnadas that he would secure to him 
the re- payment of the debt already advanced 
or if Ex. 7-2 has been tsubstituted for an- 
other after the death of Jamnadas. It 
would equally appear that there was no 
obligation on the insolvents to execute the 
mortgage-deed in favour of their aunt on 
the 1st September 1921 and its execution 
without any pressure from the aunt amounts 
to fraudulent preference within the mean- 
ing of s. 54 of the Act. If the petition for 
insolvency had been filed within three 
months of this date, I would have had no 
hesitation in declaring it to be void. Differ- 
ent considerations however arise in the cir- 
cumstances of the present case. There is 
a radical difference between ss. 53 and 54. 
In s. 54 the Court is not concerned with 
the motive of the transferee but only with 
that of the debtor. It is he who is said to 
have given the preference and whether the 
transferee acted in good faith or not is im- 
material. Where, however, the three months' 
limitation contemplated by s. 54 has expir- 
ed, it is open to the transferee to prove that 
whatever the motive of the transferor may 
have been, he on his part has acted in good 
faith. And where the consideration of [he 
transfer is a past debt, the transferee stands 
in a better position than otherwise. He has his 
own interests to serve and owes no duty to 
the other creditors to protect their interests. 
He in the absense of any statutory limitations 
imposed by the Law of Bankruptcy, is as 
much at liberty to secure there-payment of 
his debt by superior diligence as by accept- 
ing a voluntary preference provided he 
goes no further than what is necessary to 
serve his own purpose. See the observa- 
tions of Mukerji, J., in Hakim Lai v. Moosha- 
harSahu(6). What then are the limita- 
tions imposed by the Law of Bankruptcy 
on the rights of the creditor to secure to 
himself the re-payment of a past debt? 
Where he has secured an advantage by his 
superior diligence, it would appear that he 
cannot be deprived of such advantage either 

(6) 34 C. 999 at p. 1018; 11 C. W. N 889; C C. L. J. 
410. 



under s. 53 or s. 54 of the Act. Where he has 
not secured it by such superior diligence 
but has accepted a preference voluntarily 
made by his debtor, he may not retain it, 
if an insolvency petition is filed for the 
adjudication of the debtor within three 
months of such preference. It would, there- 
fore, follow that if the three months have 
elapsed, it is open to the creditor to say that 
in accepting such preference he has only 
secured to himself his own interests, and 
to rely on the presumption arising there- 
from to prove his good faith. The onus 
then shifts on to the Official Receiver to 
prove other circumstances to warrant an 
inference that the act of the creditor in 
accepting a preference was an act of bad 
faith according to the Law of Bankruptcy, 
On behalf of the Official Receiver an at- 
tempt was made to show that <there were 
other circumstances in the present case to 
rebut the inference arising in favour of 
the opponent as a creditor. In the first 
place it was said that the property mort- 
gaged to him was substantially the whole 
of the property by the insolvents, and it 
was urged that as such it was an act of 
bankruptcy and void as not having been 
accepted in good faith. Reliance was placed 
on the recent case of the Official Assignee 
of Bengal v. Yokohama Specie Bank Ltd., 
(7). Though I afforded an opportunity to 
the Official Receiver after he had closed 
his case to prove ,that this property was 
substantially the whole of the insolvents' 
property, he has failed in his attempt. 
Admittedly the insolvents had another pro- 
perty at Karachi which was mortgaged by 
them with Messrs. Tattersall & Co. for 
Rs. 16,000 on the 22nd February 1922. 
They had a certain amount on stock-in- 
trade, and it was open to the Official Recei- 
ver to show what its value was. He has 
not done so. The insolvents have, on the 
other hand, put in certain statements to 
prove that they took delivery of a consider- 
able quantity of piecegoods after the 
mortgage- deed. The opponent is a woman, 
and it cannot be assumed without further 
proof that she knew that her nephews were 
: :'i:i: ji: u to her all that they possessed. 
li Ex. 7-J i$ genuine, and the mortgage- 
deed was executed in pursuance of the 
promise made by the insolvents to Jamna- 
das, it would appear that at that time the 
insolvents possessed one more immoveable 



(7) 87 Ind. Cas. 
(C.; 640, 



0. W. N. 374; (1925) A, I R, 



[92 I. 0. 1826] JAII8HBDJI NAOftOJI GAMADIA *. MAGANLAL BANKBTLAL & CO. 



property which they morl inure 1 1 with Messrs 
Hiranand Naraindas for Ks. 15,000 and 
had also other considerable assets. 

It is no doubt true that after May 1921, 
the insolvents at no time possessed suffi- 
cient assets to pay off their creditors in 
full, and though I have a shrewd suspicion 
that the object of the insolvents to attempt 
to carry on their business for over a year 
after they were to their knowledge hopeless- 
ly gone, was to benefit some of their rela- 
tions and to make it difficult for the 
Official Receiver to take possession of all 
the property which would otherwise have 
been available for distribution, I find it 
difficult to hold that the incumbrance in 
favour of the opponent falls within the 
principle enunciated in the Calcutta case. 

It was further alleged on behalf of the 
Official Receiver that as the opponent had 
no issue, the object of the mortgage-deed 
was to secure to the insolvents the advantage 
of the transfer, the opponent holding the 
property on their behalf as a benamidar. A 
considerable amount of argument was ad- 
dressed at the Bar with regard to the vali- 
dity of the alleged Will of Jamnadas, and 
especially the provision in respect of 
"dharam". It is however not necessary for 
me to go into the question either of the 
validity of the Will or of the bequest to 
"dharam" as it would appear that the pos- 
session of the opponent de hors the Will is 
even better. As a Hindu widow she is 
entitled to an absolute estate in the cash 
left by her husband. I am not, however, 
prepared to hold in the absence of any evi- 
dence on the point that the mortgage-deed 
was executed in favour of the opponent as 
a benamidar for the insolvents. Admittedly 
Jamnadas has left two brothers who are 
both alive, and it cannot now be said whe- 
ther on her death, the property left by her 
would vest in the insolvents or in the bro- 
thers of Jamnadas. This will depend on 
who are alive at the time the inheritance 
opens up on her death. It is to be regretted 
that I should have arrived at this conclu- 
sion which deprives the creditors of their 
right to claim a rateable distribution out of 
the half share of the residential house mort- 
gaged to the opponent. The conduct of the 
insolvents in continuing to carry on their 
business from certain mala fide motives 
requires a separate consideration and can- 
not be made a ground for setting aside the 
incumbrance in the absence of proof of bad 
faith on the part of the opponent. TUis ap- 



plication, therefore, fails and is dismissed. 
In the circumstances of this case; I make 
no order as to costs. If the Official Receiver 
wishes to appeal against this decision, I 
shall readily grant him the required per- 
mission, 
p. B. A. Application dismissed. 



BOMBAY HIGH COURT. 

ORIGINAL CIVIL JURISDICTION APPEAL 

No. 95 OF 1^24. 
February 27, 1925. 

Present: Sir Norman Macleod, KT., 
( 1 hief Justice, and Mr. Justice Coyajee. 
JAMSIIEDJI NAOROJI GAMADIA 
DEFENDANT APPELLANT 

versus 

MAGANLAL BANKEYLAL & CO. 
PLAINTIFFSRESPONDENTS. 

Contract Act (IX of 1872), s. 178 Shares handed over 
for purpose of raising money Pledge of shares 
Misrepresentation, shares obtained by Pledgee, rights 
of Fraud, meaning of "Goods," whether includes 
share certificates 

A person who without enquiry takes from another 
an instrument signed in blank by a third party and fills 
up the blanks cannot, even in a case of a negotiable 
instrument, claim the benefit of being a purchaser for 
value without notice so as to acquire a greater right 
than the person from whom he himself received the 
instrument, [p. 12, col, 21 

France v. Clark, (1884) 26 Ch D 257, 53 L. J. Ch. 
585, 50 L T 1; 32 W. R 466, referred to 

The obtaining of goods or documents by fraud of 
which the proviso to s 178 of the Contract Act speaks 
must mean obtaining possession by such a trick or 
fraud as excludes real consent and, therefore, cannot be 
the foundation of any other contract, [p. 13, col 1 ] 

Defendant No. 1 who was a partner in a firm which 
had b^en dissolved represented to defendant No. 2 
that his liabilities in respect of his partnership in the 
dissolved firm did not exceed a certain sum and in- 
duced defendant No 2 to enter into a partnership 
with him for the purpose of starting a new business. 
Defendant No. 2 handed over shares in certain com- 
panies to defendant No. 1, together with transfer 
forms with blank transfers duly signed by him, and 
authorized the first defendant to borrow money on the 
shares for the purpose of the new business to be 
started by them. The first defendant pledged the 
shares with the plaintiff and utilized the proceeds to 
discharge his liabilities as a partner in the dissolved 
firm In a suit by the plaintiff to enforce the pledge 
of the shares 

Held, (1) that the first defendant having been autho- 
rized by the second defendant to pledge the shares 
it rould not be said that he had obtained possession 
of the shares by means of an offence or fraud ; [ibid ] 

(2) that at the most it could only be said that the 
first defendant induced the second defendant to 
negotiate with him with regard to starting a new- 
business by misrepresenting the amount of his 



10 



JAM8HEDJT NAOROJI 0AM ADU V. MAGANLAL UA^KEYLAL & CO. [92 I. CV1926J 



ties in Ins old business and that such a misrepre- 
sentation would enable tho second defendant to avoid 
the agi cement to stait a new business and fo teeover 
the shares entrusted to the ihst defendant fnr the 
purpose o raising money for that business; [ibid] 

(3) thai the misrepresentation, however, Imd not the 
effect of rendering the pledge of the shares with the 
plaintiff before the rescission of the contract nuahd 
and that the plaintiff was, therefoie, entitled to enfoiee 
his pledge [ibid j 

Per Coyajee, J The term "goods" used in s 178 
of the Contract Act is wide enough to include share 
certificates [p 13, col 2.] 

Fazal v Mangaldas, 66 Ind Cas 726, 16 H 48!) at p 
502, 23 Bom, L. R. 1144. (1922) A I R (H ) 303, fol- 
lowed. 

Appeal from the decision of Mr, Justice 
Kemp. 

Mr. Kanga, Advocate-General, (\vith him 
Mr. Khergamralla), for the Appellants. 

Sir Thomas Strangman, (with him Mr. 
Kania, for Respondent No 1 
JUDGMENT, 

Macleod, C. J. The plaintiffs filed 
tin's suit seeking to recover the sum of 
Rs. 20,671-9-0 from the first defendant, and 
praying for a declaration that the pledge of 
the shares mentioned in Ex. E to the plaint 
was binding on the second defendant, and 
that the second defendant had no right to 
prohibit the transfer of the said shaies to 
the name of the plaintiffs. They also prayed 
that they might be authorised to sell the 
shares mentioned in Ex. D and appropriate 
the net proceeds towards part satisfaction 
of the decree to be passed in their favour. 

Plaintiffs alleged that the first defend- 
ant had borrowed certain amounts from 
them on security of certain shares. On April 
12, 1921, it was found that Rs. 38,000 
were due by the first defendant and the first 
defendant passed a writing to the plaintiffs 
whereby he promised to pay the plaintiffs 
the said sum of Rs. 38,000 on demand 
with interest, and gave details of the shares 
which were to remain as security. There- 
after the plaintiffs had received a certain 
amount of interest on certain shares and also 
sold certain shares under thefinstructions of 
the first defendant. On making up the 
account the amount of Rs. 26,671-90 was 
found due to the plaintiffs against which 
the plaintiffs had in their possession the 
shares mentioned in Ex. D to the plaint, 
out of which fourteen shares of the 
Emperor Edward Mills and one share of the 
Nagpur Mills stood in the name of the second 
defendant. The plaintiffs had in their 
possession theshaie certificates and transfer 
forms signed by the second defendant, who 
had given notice to the companies- con- 



cerned not to transfer tha shares to any 
other person. The first defendant had 
failed to pay the sum of Rs 26,671-9-0, and 
hence the suit was filed claiming the relief 
abovementioned. 

The first defendant filed a written state- 
ment asking for an account but at the 
hearing he admitted the claim. 

The second defendant in his written 
statement alleged that in April 1920 the 
first defendant had induced him to join the 
first defendant in cotton business as financ- 
ing partner, representing that he only owed 
Rs. 16,000 on the transaction of the Firm of 
Framioze Boga & Co. of which he had 
been a partner and which had been dis- 
solved. Relying on the representation the 
second defendant agreed to become a part- 
ner' with the first defendant upon the terms 
of two writings dated April 24, 1920, and 
as the second defendant had not sufficient 
cash it was arranged that he should hand 
over to the first defendant certain shares 
with blank transfers signed by him on 
which the first defendant should be at 
liberty to borrow money for the purposes 
of the said business. The aggregate value 
of the shares was Rs. 2,03,839 and amongst 
them were fourteen shares of the Emperor 
Edward Mills and one share of the Nagpur 
Milh. Thereafter the second defendant 
discovered that the first defendant's liabili- 
ties in the Firm of Framroze Boga & Co., 
far exceeded Rs. 16,000 and that he had 
employed the money raised on the security 
of the said shares of the second defendant 
in paying off those liabilities. When the 
second defendant threatened the first de- 
fendant with proceedings he executed a 
writing in favour of th w second defendant, 
on May 20, 1920 and on January 28, 1921, 
executed a ' r :.r k f ids property known 
as the U 13h? : \ l< ,.! 5 ism 11 to secure re-pay- 
ment of one lakh. 

Accordingly the second defendant con- 
tended that the first defendant had obtain- 
ed possession of the said shades by means 
of an offence and fraud, so that the pledge 
of the shares in favour of the plaintiffs by 
the first defendant was not valid and bind- 
ing on the second defendant 

By way of counter -claim he prayed that 
the plaintiffs might be ordered to return 
the shares to him. 

The following issues were raised at the 
trial: 

(1) Whether the suit shares were handed 
over to the first defendant under the cir- 



[92 I. 0. 1926J JAMSHEDJI NAOROJI OAMADIA V. MAGANLAL BANKBYLAL & CO. 



11 



cumstances mentioned in para. 3 of the 
written statement ? 

(2) Whether the first defendant obtained 
possession oE the shares by means of an 
offence and fraud ? 

(3) Whether the pledge alleged by the 
plaintiffs was valid and binding on the 
second defendant ? 

(4) Whether second defendant was entitl- 
ed to his counter-claim? 

The Trial Judge believed the story of the 
second defendant that first defendant told 
him that the liabilities of the old firm 
amounted to Rs. 16,000 only, but was of the 
opinion that the second defendant was 
willing that the money to be raised on 
pledge of the shares was to be utilised in 
paying off that liability besides helping to 
start the new business 

On the second issue he decided that the 
first defendant obtained the shares by a 
material misrepresentation of fact, but that 
as the interests of a bona fide pledgee under 
s. 178 of the Indian Contract Act had in- 
tervened, the second defendant could not 
be placed in the status 'quo ante. Con- 
sequently he held that the pledge was valid 
and binding on the second defendant who 
was entitled to redeem the shares on pay- 
ment of the amount for which they were 
pledged. 

A fifth issue had been raised whether the 
second defendant had not ratified all the 
acts of the first defendant whereby he was 
estopped from disputing his liability to the 
plaintiffs. 

The Judge held that the mere fact that 
he took further security from the first de- 
fendant did not amount to a ratification. 

The second defendant has appealed. 
"' His*main ground of appeal was that the 
learnedJJudge should have held that the first 
defendant had obtained possession of the 
shares from the appellant by means of an 
offence or fraud. 

He contends that first defendant falsely 
represented that his old debt was only Rs. 
16,000 and that if he had known that the 
debt amounted to a very much greater sum 
he would not have given the first defendant 
the shares to pledge. 

What the appellant's case against the first 
defendant was on January 25, 1921, is made 
'clear from his Solicitors' letter of date, Ex. 
No, 2. After referring to the writing of 
April 24, 1920, whereby first defendant 
agreed to execute a mortgage in respect of 
two of his properties in favour of the second 



defendant whenever called upon to do so for 
securing the moneys to be advanced and the 
fact that second defendant handed over 
certain shares with blank transfer forms 
signed by him to enable the first defendant 
to raise moneys thereon for financing the 
new business which was to be started, he 
complains that the moneys so raised were 
utilised^for liquidating the private debts of 
the first defendant in abuse of the confi- 
dence.reposed on him by the second defend- 
ant without his knowledge and consent 
so that the new business was never started. 
On second defendant discovering this he 
wanted to prosecute the first defendant but 
he promised to redeem the shares very 
shortly. As the first defendant had neither 
redeemed the shares nor executed the mort- 
gage though he had given a fresh writing 
on August 10, ly^O (Ex. 2), he was called 
upon to redeem the shares within twenty- 
four hours or pay the value thereof and in 
default proceedings either civil or criminal 
would be taken against him. There is no 
suggestion in that letter that the original 
intention was that first defendant should pay 
off old debts to the extent of Rs. 16,000 out 
of the amountlborrowed on the shares or that 
second defendant would be entitled to give 
notice to the different companies not to re- 
gister any transfers. 

In his evidence the second defendant 
said : 

"Franiroze Boga was dissolved in April 
1920. First defendant proposed I should 
finance his business after the dissolution. 
I said I had shaies and he could raise money 
on them to continue a business with me as 
partner. He said the existing liabilities were 
Rs. 16,000. My shares were not to go towards 
that. I would not have given those shares 
to the first defendant if 1 had known the 
liabilities were Rs. 8U,000. About August 
1920 I came to know he had raised monies 
on my shares and used them for his own 
purposes.. Then I got the writing of August 
10, 1^20, executed by first defendant. 1 
also got the first defendant to execute a 
promissory note for Rs. 1,30,000 on April 30, 
1920, On January 28, 1921, 1 took a second 
mortgage of the first defendant's Bombay 
building. I threatened first defendant with 
legal proceedings (that was by the letter 
of January 25, 1921), and he gave me the 
seconc 'In 1 .,- 

On \ t ::.:!;, i 920, the second defendant 
had given the first defendant a writing Ex. 
F, authorising him to borrow monies on the 



12 



JAMSHEDJI NAOROJI OAMADIA V. MAOANL.AL DANKBY1AL & OO. . [92 I. 0. 1926] 



shares given to him either by making badlas 
or by overdrawing monies by depositing the 
said shares with some Bank or with big 
Shroffs. 

Cross-examined about that document he 
said : 

11 1 did not understand when I signed it 
that I was giving first defendant unreserved 
liberty to pledge. The letter is plain enough. 
I say it did not authorise first defendant to 
pledge the shares for any purpose he want- 
ed. First defendant said he had to dis- 
charge liability of Rs. 16,000 and he wanted 
money for that also. The shares of value 
of those I deposited were to finance this 
business also. First defendant got these 
shares from me by fraud viz., obtaining 
them for partnership and thus misapplying 
them. 1 ' 

It is difficult owing to these contradictory 
statements to arrive at any satisfactory con- 
clusion whether first defendant was authori- . 
sed or not to spend out of the monies bor- 
rowed on the shares, Rs. 16,000 or any 
other sum towards discharging his own 
liabilities. It is true that there is some 
foundation for the allegation to this effect 
of the second defendant in the writing Ex. 
6 given by the first defendant to the second 
defendant on April 24, 1920, bat against 
that there is the statement of the second 
defendant in his evidence that his shares 
were not to be used by the first defendant 
for raising money to pay off his own liabi- 
lities. The first defendant said he did not 
tell the second defendant his private liabili- 
ties were Rs. 16,000. Second defendant did 
not ask what were the liabilities of the 
firm the first defendant was continuing. The 
shares were not given for the new business. 
They were given so that he could raise 
margin money. Second defendant had given 
him shares before by way of margin money. 
On his own confession the first defendant 
was guilty of misappropriation of the monies 
borrowed on the shares. The second defend- 
ant's case cannot stand- higher than this: 
"I know the first defendant wished to wind 
up his old business He told me the liabili- 
ties of that business were Rs. 16,000 and I 
was willing that monies should be raised 
to pay off those liabilities and provide the 
capital for our partnership business. If I 
had known that first defendant's liabilities 
were Rs. 80,000 I would not have con- 
sented to start a new business with him, 
and 1 would] not have handed over the 
shares, 1 ^ 



But in my opinion the case set up in 
Ex. 2 is the right one and that the second 
defendant gave the shares to the first 
defendant to raise money thereon for th* 
new business. 

The question, therefore, is, as propounded 
by the Advocate- General whether the per- 
sons who advanced money to the first defend- 
ant on the shares standing in the name of 
the second defenctant were bound to make 
inquiries as to the first defendant's title to 
deal with the shares, or whether the second 
defendant by putting into the hands of 
the first defendant his shares with blank 
transfers signed by him was estopped from 
disputing the title of a holder of the shares 
and transferees who received them in good 
faith from the first defendant and advanced 
money to the first defendant on security of 
the shares. 

It is impossible to lay down any general 
rule. The answer to the question must 
depend on the facts of the case. The de- 
cision in France v. Clark (1) is not of much 
assistance. France, the registered holder 
of certain shares, deposited the certificates 
with Clark as security for . 150 and gave 
him a blank transfer signed by himself. 
Clark deposited the shares and the transfer 
with a third party as security for . 250. 
The third party filled in the transfer in 
his own name and sent it in for re- 
gistration. It was held he had no 
title against France except to the extent 
of what was due from France to Clark. A 
person who without inquiry takes from an- 
other an instrument signed in blank by a 
third party and fills up the blanks cannot, 
even in the case of a negotiable^instrument, 
claim the benefit of being a purchaser for 
value without notice so as to acquire a 
greater right than the person from whom 
he himself received the instrument. Clark 
was regarded in the light of an equitable 
mortgagee of the shares. The documents 
themselves showed that Clark was not the 
owner and there was no evidence of a 
mercantile usage that the holders of such 
documents were treated as having the right 
to transfer. Blank transfers with share 
certificates were not negotiable instruments. 
In this case the first defendant was the 
agent of the second defendant to raise 
money on the shares. I cannot agree with 
the learned Judge when ha says the first 
defendant wa* a principal. The letter of 

(1) (1884) 26 Oh. D, 257; 53 I,. J. .Ch. 585; 50 I., T, 
1; 32 W. R, 466. 



I. 0. 1926] JAMSHEDJI NAOROJI GAMAttIA V. MAGASLAl, BANKETLAL & CO. 



April 24, 1920, is clearly an authority to the 
first defendant to raise money on the shares 
on behalf of the second defendant, the 
moneys to he utilised according to the terms 
of Ex 2 in the business to be started by 
defendants Nos. 1 and 2 as partners. The 
first defendant being authorised to pledge 
the shares it cannot be said that he had 
obtained possession of them by means of an 
offence, or fraud. At the most it may be 
said that he induced the second defendant 
to negotiate with him with regard to start- 
ing a new business by misrepresenting the 
amount of his liabilities in his old business. 
Such a misrepresentation would enable 
the second defendant to avoid the agree- 
ment to start the new business and to recover 
the shares entrusted to the first defendant 
for the purpose of raising money for that 
business. The question whether the pledge 
of the shares before the rescission of the 
contract would be invalid is considered by 
Messrs. Pollock and Mulla in their notes to 
s. 178of the Indian Contract Act, at page 639. 
The authors think that the use of the term 
''fraud" in juxtaposition to offence would 
seem to indicate that it is confined to the 
substantive wrong of deceit. If possession 
of goods obtained under a contract voidable 
on the ground of fraud is possession obtain- 
ed by fraud a pledge by the possessor 
could be invalid even before the rescission 
of the contract although an out and out 
sale would be valid under s. 108. I agree 
with their conclusion that it was not the 
intention of the Legislature to depart from 
the Common Law, and that the obtaining 
of goods or documents by fraud of which 
the proviso to s. 178 speaks must mean 
obtaining possession by such a trick or fraud 
as excludes real consent and, therefore, can- 
not be the foundation of any contract. The 
fraud, if any, committed by the first defend- 
ant was not committed in obtaining posses- 
sion of the shares but in his disposition 
of the moneys obtained by pledging them. 

Even assuming that the pledgee on being 
asked to lend money on the shares with 
blank transfers standing in the name of the 
second defendant was put on inquiry with 
regard to the title of the first defendant, 
he would have been shown the letter of 
authority signed by the second defendant. 

I think, therefore, the decision of the 
learned Judge was right and that the appeal 
should be dismissed with costs. 

Coyajee, J I agree in holding that 
the pledge of the share certificates created 



by the first defendant in favour of the plaint- 
iffs is valid: s. 178, Indian Contract Act. The 
term "goods" used in that section is very 
wide (s. 76 of the said Act), sufficiently 
wide to include share certificates [Fazal v. 
Mangaldas (2).] In my opinion the evidence 
in this case which is fully discussed in the 
judgment of the learned Chief Justice, 
makes it clear that the first defendant had 
not obtained those certificates from the 
second defendant by means of "fraud" with- 
in the meaning of that expression as used 
in the proviso to s. 178. The proviso, it 
would seem, does not exclude from the 
operation of the section the case of goods 
obtained under a contract voidable on the 
ground of fraud. For it would be anomalous 
that although a person who has obtained 
possession of goods under a contract void- 
able at the option of the other party to it 
can transfer full ownership of these goods 
before the contract is rescinded (Exception 
3 to s. 108), he cannot make a valid pledge 
at all of the same goods. 

In this case the second defendant handed 
over the share certificates and transfer 
forms duly signed to the first defendant on 
April 24, 1920. On that day twoMocuments 
(Ex. E and Ex. No. 6) were exchanged be- 
tween them. The one passed by the second 
defendant gave the first defendant author- 
ity to raise moneys on the pledge of those 
certificates in language both plain and 
wide. It says : ' I authorise him and give 
my consent to borrow monies either by 
making badlasor by overdrawing monies by 
depositing the said shares with some Bank 
or big shroffs" The material statements in 
the other document are: "With regard to 
the cotton brokerage business which I <have 
been carrying on... in the name of Messrs. 
Framroze Boga and Company and with re- 
gard to the current business of the said 
brokerage which I have taken upon myself 
in the said firm you have this day (given) 
to me certain shares... to enable me to 
borrow monies thereon... For the monetary 
assistance which you have given to me 
1 bind myself to make an agreement 
with you as soon as the accounts of 
my old customers are settled." The 
agreement here referred to was a contem- 
plated partnership agreement between the 
parties. It seems to me that the effect of 
the evidence of the second defendant read 
with these documents and with his attor* 

(2) 66 Ind. Gas. 726; 46 B. 489 at p. 502; 23 Bom. L. 
L, R, 1144; (1022) A. I. R. (B.) 303. 



14 



PfcAREY LAL V. ALLAHABAD BANK LTD. 



ney's letter of January 25, 1921, (Ex, No. 2), 
is this ; Not that the pledge of the share 
certificates was unauthorised, but that the 
monies so borrowed were wrongly applied 
by the tirst defendant to unauthorised uses. 
But with this the plaintiffs have no concern. 
They have acted in good faith in making 
the loan on the pledge of the share certi- 
ficates. 

In my opinion the decree of the learned 
Judge is right and this appeal must fail. 

z. K. Appeal dismissed. 



ALLAHABAD HIGH COURT, 

EXPIATION FIRST CIVIL APPEAL No. 170 OF 

1925. 

Decembers, 1925. 

Present: Mr. Justice Mukerji. 

PEAREY LAL PURCHASERAPPELLANT 

versus 

THE ALLAHABAD BANK LTD., MEERUT 
DECREE HOLDER AND Babu BAIJNATH 
PRASAD AND ANOTHBB JUDGMENT- 
DEBTORS RUSPOMDB VTS. 

Civil Procedure Code (Act V of 1908), s. V, XXI, 
r 58~Mon<>y~decrce- Attachment of property Objec- 
tion by transferee from jiidgmenl-debtoi Decision, 
finality ofAppeal, whether liesProperty attached 
being decree in favour of judgment-debtor, effect of -- 
Execution of decree -Insolvent judgment-debtor- - 
Question of title between scheduled creditor* decision 
of Revision -Provincial Insolvency Act (V o-f 19^0), 
s. 50. 

Where an objection is raised by a transferee from 
the judgment-debtor to attachment of the property in 
execution of a money-decree, and the question arises 
whether the transfer in favour of the objector is good 
or not, the question relates to the title to the property 
sought to be attached, and comes within the purview 
of O. XXI, r. 58, 0. P. , and the decision is final, 
subject to the result of any suit that might be in- 
stituted, and is not open to appeal. The fact that the 
property attached is a decree makes no difference, (p. 
15, col. l.j 

There is nothing in s 50 of the Provincial In- 
solvency Act which says that any question of title 
raised between two scheduled creditors will be decided 
by the Insolvency Oouit, and a decision of such ques- 
tion by the Execution Court is not open to revision 
Ip 15, col. 2.] 

Execution first appeal from a decree of 
the Subordinate Judge, Meerut, dated the 
12th of December 1924. 

Dr. K . N. Katju, for the Appellant. 

Mr. Shambhu Nath Seth for Mr. P. L. 
Banerji, for the Respondent. 

JUDGMENT. This is an execution 
first appeal and has arisen under the 
following ^circumstances. A certain suit 



[92 I. 0. 1926] 

No. 428 of 1922 w$s instituted by two 
persons Baij Nath and Murli Dhar against 
one Oaneshi Lai as Defendant No. 1 and 
the Allahabad Bank Ltd., as the defendant 
No. 2. The suit of Baij Nath and Murli 
Dhar was decreed for a sum of about 
Rs. 8,000 against Ganeshi Lai but it was 
dismissed as against the Bank. The Bank 
was awarded costs to the amount of 
Rs. 513-12. The decree was passed on the 
27th of March 1923. On the 12th of May 
1924 the Allahabad Bank applied for the 
attachment of the decree obtained by Baij 
Nath and Murli Dhar against Ganeshi Lai 
in order to realise the money due to the 
Bank, Previous to this application for 
attachment, by a sale-deed dated the 6th 
of February 1924 Baij Nath and Murli 
Dhar had bold the decree held by them 
against Geneshi Lai to the appellant, Pearey 
Lai. Ganeshi Lai was declared an insolv- 
ent. Pearey Lai as a transferee of the 
decree obtained by Baij Nath and Murli 
Dhar against Ganeshi Lai got himself 
entered in the schedule of creditors. The 
Allahabad Bank had a debt payable by 
Ganeshi Lai which arose out of a different 
transaction and in that capacity the Bank 
was also entered in the schedule of cre- 
ditors of Ganeshi Lai. 

The Allahabad Bank in their application 
mentioned the fact that Baij Nath and 
Murli Dhar had sold their decree to Pearey 
Lai and that Pearey Lai had obtained an 
entry into the schedule of creditors of 
Ganeshi Lai. The Bank asserted that the 
transfer to Pearey Lai by Baij Nath and 
Murli Dhar was a fictitious one and prayed 
that the decree might be attached and the 
Insolvency Court might be requested to 
send the money that may be due on account 
of the decree of Baij Nath and Murli Dhar 
in Court for payment to the Bank. 

Pearey Lai raised two objections. First, 
he said the question of title as between 
the Bank and Pearey Lai should be settled 
by the Insolvency Court and secondly he 
said that lie was a lona fide transferee for 
value and the decree was not attachable as 
the property of Baij Nath and Murli Dhar. 
The Court below has found both the 
points against Pearey Lai and hence the 
appeal. 

A preliminary objection has been tak^n' 
by Mr. Seth that the appeal is incompetent 
inasmuch as the objection of Pearey Lai 
was one that fell within the purview of 
0, XXI, r. 58 of the C. P, C. and the order 



[92 1. 0. 192fi] 



PEAREY LAL V. ALLAIIAfeAD BANK LTD. 



15 



of the Court below was final subject to the 
result of any suit that Pearey Lai might 
bring to prove his title. 

Dr. Katju maintained that the appeal was 
maintainable under s. 47 of the C. P. 0. 
and in case the Court should hold otherwise 
he requested that his appeal might be 
treated as a petition in revision. 

On the question as to whether an appeal 
lies or not I am clear that no appeal lies. 
The position is this. A (the Bank) has 
obtained a decree against B. (Baij Nath 
and Murli Dhar) for money. In execution 
of that decree A attaches a certain property 
(in this case a decree) belong! n# to B. 
Before the attachment C (.Pearey Lai) has 
obtained a sale-deed in his favour in 
respect of the property attached The 
question has arisen as to whether C's title 
is good or whether the transfer in C's 
favour is fictitious. The question has been 
raised by a person who is not a party to the 
decree. The question to be litigated is as 
to title to the property sought to be attach- 
ed. In my opinion the case comes clearly 
within the purview of 0. XXI, r. 58 of the 
C. P. C., and the decision is final subject 
to the result of any suit that may be 
instituted. Dr. Katju's contention is that 
the property to be attached being a decree 
Pearey Lai, the moment he obtained an 
assignment of it, in his favour, became 
a legal representative of the judgment- 
debtor and that, therefore, the case fell 
within the purview of s. 47 of the C. P. C. 
He conceded that if the property attached 
had been anything but a decree 0. LVI1I, 
r. 21 would have applied. I do not see how 
the case can come within the purview of 
s 47 merely because the property to be 
attached happens to be a decree. Further, 
the question to be decided is not one 
relating to the execution, discharge or 
satisfaction of the decree. It is whether 
the sale-deed on foot of which Pearey Lai 
claims to be a representative is a fictitious 
one or not. This question, has nothing to 
do with the execution, discharge er satisfac- 
tion of the decree which was passed in 
favour of the Allahabad Bank and against 
Baij Nath and Murli Dhar. 

I hold that no appeal lies. 

Considering the appeal as a petition in 
revision, I have to see whether the Court 
below had any jurisdiction or not to decide 
the question, that is to say, whether the 
Court below or the Insolvency Court should 
have decided the question whether Allaha- 



bad Bank was entitled to attach the decree 
passed iu favour of Baij Nath and Murli 
Dhar, in spite of the supposed transfer of 
it by the debtors in favour of Pearey Lai. 
Dr. Katju has pointed out s. 50 of the 
Provincial Insolvency Act as authorising 
the Insolvency Court to dispose of the 
question. That section simply says that in 
certain cases at the instance of a receiver 
or a creditor the Insolvency Court may 
order the expungement of an alleged credi- 
tor's name from the schedule of the reduc- 
tion of the amount of the debt due to him. 
But there is nothing in the section which 
says that any question of title raised be- 
tween two scheduled creditors will be 
decided by the Insolvency Court. I hold 
that the Court below had the jurisdiction. 

Such being my finding it is clear that I 
need not go into the merits of the appeal. 

I have however heard Dr. Katju on the 
merits also and find myself in agreement 
with the finding of the Court below. 

The Bank's case as made out in then- 
petition of objection dated the 29th of June 
1!)25 (page 7 of the Paper Book; was to the 
effect that the Bank's debtors had no means 
whatsoever, except the decree against 
Ganeshi Lai, by which to pay the debt due 
to the Bank, ride para 3. The witness 
that was examined on behalf of Pearey Lai 
stated that he had not seen Baij Nath at 
Meerut since the sale deed was executed in 
favour of Pearey Lai and he was unable to 
say whether Baij Nath had left Meerut for 
good or not. Baij Nath executed the sale- 
deed for himself and as an attorney for 
Murli Dhar. Evidently, therefore, Murli 
Dhar was not at Meerut. This circumstance 
must have weighed greatly with the 
Court below as it weighs with me. The 
debtors of the Bank have left the town 
having sold their valuable decree for 
Rs. 8,000 for the small sum of Rs. 300. Dr. 
Katju told me that the receiver had declar- 
(d a dividend of only Rs 400 and odd in 
favour of Pearey Lai. His argument is 
that this was the only sum recoverable 
under the decree of Baij Nath and Muili 
Dhar from the Insolvency Court. But I 
am not aware whether there are or not 
other assets of Ganeshi Lai to be realised. 
Some explanation ought to havq been 
offered in the Court below as to why the 
valuable decree for Rs. 8,000 was sold almost 
for a song. I agree with the Court below 
that the transfer in favour of Pearey Lai 
was a fictitious one, 



46 

The appeal fails on each and every point 
andlit is hereby dismisssd with costs which 
will include Counsel's fees in this Court on 
the higher scale. 

N. H, Appeal dismissed. 



BOMBAY HIGH COURT. 

SECOND CIVIL APPEAL No. 233 OF 1923. 

November 13, 1924. 
Present: Sir Norman Macleod, KT., Chief 

Justice, and Mr. Justice Crump. 
DUMA TOMA RUMAV AND OTHERS- 
DEFENDANTS APPELLANTS 

versus 

NATHU PARSHA KUREL AND OTHERS 
PLAINTI FFS- RES PON DENTS. 

Specific performance Option to obtain property on 
payment of certain sum within period mentioned, 
nature of Consideration, absence of Offer, whe- 
ther can be accepted after death of party to whom offer 
is made. 

Defendants' predecessor agreed with the plaintiffs' 
predecessors that the latter could, within a period of 
ten years from the date of the agreement, tender a 
certain sum of money and demand conveyance of 
certain property from the former. In a suit for 
specific performance of the agreement by the plaintiffs 
againat the defendants : 

Held, (1) that if the agreement was to be treated as 
a contract it was unenforceble as being without con- 
sideration ; 

(2) that if the agreement amounted to a mere offer, 
not having been accepted by the persons to whom it 
was made in their lifetime, it could not be accepted 
by their auccessors-in-interest after their death, and 
was not, therefore, capable of being sued upon. 

Second appeal from a decision of the 
Assistant Judge, Thana, in Appeal No. 205 
of 1921, confirming that pf a decree of the 
Subordinate Judge, Bassein, in Civil Suit 
No. 143 of 1920. 

Mr, R. W. Desai, for the Appellants. 

Mr. G. S. Kao, for- the Respondents. 
JUDGMENT. 

Macleod, C. J. In this suit the 
plaintiffs sued for specific performance of 
the contract for sale of the suit land by the 
1st defendant's brother Juzia which the 
plaintiffs eaid was entered into on Decem- 
ber 5, 1910, by Juzia Rumav on the one 
hand and on the other by Farsha Degu 
Kurel, father of plaintiffs Nos. 1 and 2, and 
Simav Ina, husband of plaintiff No. 3 and 
brother of plaintiff No. 4, both dead at the 
time of the suit. The terms of the docu- 
ment on which the plaintiffs relied are set 
out at page 2 of the print. The' effect of 



DUMA TOMA KUMAV V. NATHU PAtSfiA KUfifiL. [98 I. 0, 1926J 

that document was that Farsha and Simav 
could within a. period of ten "years from the 
date of the document tender Rs. 1,500 and 
demand a conveyance from Juzia. There 
are two ways in which the document can be 
read ; (1) as an offer by Juzia which was to 
remain open for ten years acceptable by 
Farsha and Simav at their option ; or (2) as 
an agreement by Juzia that he would hold 
the property for ten years at the disposal of 
Farsha and Simav and to sell to no one 
else. The latter would be a contract and 
the first would be an offer. If the docu- 
ment amounts to a contract then there 
was no consideration proceeding from 
Farsha and Simav for the agreement 
by Juzia to sell the property to no 
one else during the ten years. Therefore, 
the contract would be unenforceable as 
being without consideration. But if the 
document amounts to a mere offer to 
Farsha and Simav that a conveyance would 
be given on their tendering Rs. 1,500 
within ten years, it would remain an offer 
and would not become a contract until the 
offer was accepted. Then the question 
would arise whether the offer made to 
Farsha and Simav could be accepted by 
their legal representatives. No authority 
has been shown to us for such a proposition, 
and it seems to me uncontestable that if 
A makes an offer to B and nothing further 
is done before B dies, B's representatives 
could not claim to have a right to accept 
the offer made by A to B. On this ground 
it seems to me that the representatives of 
Farsha and Simav, who are the present 
plaintiffs, are either suing on a contract 
without consideration or are claiming a 
right to sue for a declaration that they are 
entitled to accept an offer made to their 
ancestors, which is not a right recognised 
in law. It seems to me, therefore, that the 
suit should have been dismissed and accord- 
ingly we make that order^ with costs 
throughout. 

Crump, J. I concur. 

z, K. Suit dismissed. 



1. 0.1926] 



SHAtf fcAR t7. BHAIRON 



1? 



OUDH CHIEF COURT, 

SECOND CIVIL APPEAL No. 305 OF 1924. 

November 5, 1925. 
Present: Mr. Justice Ash worth and 

Mr. Justice Raza. 

GAURI SHANK A R PLAINTIFF 

APPELLANT 

zersus 

BHAIRON PERSHAD DEFENDANT- 
RESPONDENT. 

Transfer of Property Act (IV of 1883), s 05 (e) 
Mortgage Mortgagee empowered to obtain possession of 
portion of mortgaged property on payment of certain 
amount to third person Possession obtained on pay- 
ment of larger amount - -Mortgagor, whether liable for 
excess amount paid Interest, covenant providing for 
payment of, up to certain date Mortgagee, whether 
entitled to interest after date fixed. 

Where a mortgage-deed empowers the mortgagee 
to obtain possession of a portion of the mortgaged 
property from a third person on payment of a certain 
sum of money, and the mortgagee, m order to obtain 
possession of the property, is compelled to pay a 
larger amount of money than is mentioned in the 
mortgage-deed, the mortgagor is bound to bear the 
whole of the expenses incurred by the mortgagee in 
obtaining possession of such property [p 18, col 1 1 

Where a mortgage-deed expressly provides that 
interest shall not be payable to the mortgagee after a 
certain, date, the mortgagee is not entitled to interest 
after such date, [p 18, cols 1 & 2 ] 

Second appeal against the judgment 
and decree of the Sub-Judge, Unao, dated 
the 12th April 192 h modifying that of 
the Munsif, North Unao, dated the 29th 
March 1923. 

Mr. Bishambhar Nath Srivastava, for the 
Appellant. 

Mr. H. N. Misra for Dr. J. N. Misra, and 
Mr. Surrendra Nath Srivastava, for the Re- 
spondents. 

JUDGMENT. This is the plaintiff's 
appeal. The plaintiff sued for redemption 
of a 2-annas share in the village of Jindas- 
pur on payment of the sum of Rs. 500 
principal money secured by a irn/rlgii^c- 
deed dated the 26th of August 1862. " The 
Court of first instance gave the plaintiff 
a decree for redemption but required him 
to pay in addition to the Rs. 500, principal 
sum, the sum of Rs. 419-9-0 which had 
been expended by the mortgagee in get- 
ting poroession from a prior mortgagee. 
It refused to credit the mortgagee with 
interest after the date mentioned in the 
mortgage-deed as that up to which interest 
would be payable by the mortgagor. On 
appeal the Subordinate Judge upheld the 
first finding of the original Court but 
allowed interest for a period subsequent to 
tbat just mentioned. The plaintiff appeals 
2 



against the decision of the lower Appellate 
Court on both grounds. 

Four persons originally held 16-annas in 
village Jindaspur. On the 25th of June 
1859, two of them Mohan Lai and Beni 
Prasad lYi-.r-turnsriMl the whole 16 annas to 
Raja Tej Kishen for Rs. 450. It is not 
disputed that they were in a position to 
mortgage the whole 16 annas. Now one 
of the four persons Mohan Lai was re- 
corded as owner of 10-annas share out of 
the 16-annas share from before this mort- 
gage. His 10 annas share was confiscated 
in 1860 by Government for rebellion and 
granted to Ram Ghulam. There is evi- 
dence on this record, namely Ex. V to show 
that the confiscation had the effect of Gov- 
ernment acquiring not only the equity of 
redemption but absolute rights in the 10- 
annas share. It is a qanunyo's report. 
Accordingly Ram Ghulam acquired an un- 
incwnhered share in 10 annas share. On 
the 26th of August 1862 another of the 
four persons Beni \\lio was recorded as 
owner of a ;2 annas share '.. ... : his 
2 annas share to Ram Ghulam for Us, 500. 
It is this mortgage of which redemption 
is being asked in the present case. The 
mortgage-deed records that the mortgagor 
was leaving Rs. 56-4 with the mortgagee 
for redemption of the 2-annas share from 
Raja Tej Kishan. In pursuance of this 
deed Ram Ghulam attempted to redeem 
the property from Raja Tej Kishan 's trans- 
feree by offering the Rs. 56-4 and brought 
a redemption suit to that effect. It was 
held by the Assistant Collector of Unao 
under a judgment dated the 16th of May 
1878 that he could only redeem 2 annas 
share by paying up the total sum for 
which the whole l(i-annas share had been 
mortgaged to Raja Tej Kishen. In that 
suit he had made one of the present 
plaintiffs, namely, Gauri Shankar, who is 
the son of Beni, the mortgagor, a co-plaint- 
iff. The lower Courts held that under the 
mortgage- deed in suit the mortgagor in 
effect gave a warranty to the mortgagee 
that he would get possession of the 
2-annas payment of Rs. &6-4 and that as the 
mortgagee had to pay Rs. 450 the mort- 
gagee is entitled to get the difference bet- 
ween the two sums in addition to the mort- 
gage-money. The first question that arises 
in this appeal is whether they were correct 
in so holding. 

Whatever was the contention for the ap- 
pellant-mortgagor in the lower Court, w^ 



MUNICIPAL COUNCIL, COCHIN I?. PfcATATH BAVA fcEVUSSI. 



[C L 



find that in the Court of first appeal his 
contention was that Ram Ghulam having 
obtained from Government 10 annas out of 
the 16-annas originally moitgaged was 
bound t,o contrfbute to that extent himself 
in redemption of a prior mortgage for 
Rs, 450. k We are, however, satisfied that 
this objection fails for the following reason: 
Bam yfnulam obtained the property from 
Government free of incumbrance. The 
buiden, therefore, of the whole of the mort- 
gifge was thrown on the (5-annas of which 
the equity of redemption remained with 
the mortgagors. Accordingly the conten- 
tion in the lower Appellate Court failed. 
In this Court it has been urged that both 
Beni and Ram Ghulam well understood the 
facts of the case and that Rs. 56 4 would 
not suffice to redeem the original mort- 
gage. It is said that the agreement was 
that Ram Ghulam should redeem the whole 
mortgage but only held Beni liable for twc- 
sixteenth of it. With this argument we <3o 
not agree We construe the mortgage-deed 
to mean, as urged by the defendants, that 
the mortgagor covenanted that the mort- 
gagee should get possession of the 2- annas 
on payment of Rs. 56-4. The mortgagee has 
failed to get possession of that owing to a 
decision of a Court with the correctness of 
which we are not concerned. The curious 
thing about this decision of IGtfy May 1878 
ie that the Court only decreed possession 
of 2 annas on payment of Rs. 450 and not 
possession of the 6- annas share remaining 
to the mortgage. This decision appears 
to us to be an accident which could not be 
foreseen by the parties to the mortgage and 
both on the interpretation which would give 
to the mortgagee and on the principle under- 
lying s. 65 (e) of the Transfer of Property 
Act, we consider that the mortgagor is 
bound to bear the whole expenses incurred 
in obtaining the promised possession of 
the property. 

The appellant also appeals against the 
lower Court's decision that he must pay 
interest after the date up to which the 
deed recites that interest shall be paid and 
urged that the decree of the Court of first 
instance on this point should be restored. 
The lower Court has cited certain rulings 
which have again been relied on by the 
respondents' learned Counsel in this case. 
The language of the mortgage deed is quite 
clear, namely, that interest shall be payable 
at a certain rate so long as possession is not 
obtained by the ir ortgagee up to 8 years 



and that after 8 years the only remedy of 
the mortgagee was to sue for foreclosure. 
The rulings quoted to us are all to be 
distinguished Irom the present case. They- 
were based on deeds which had no express 
provision that interest should cease at a 
certain date but only provided that interest 
was payable until the date on which sale 
or foreclosure could be claimed. In the 
face of the clear language of the deed we 
agree with the Court of first intstance that 
no interest could be decreed after the 8 
years. 

Accordingly we allow this appeal in part 
and dismiss it in part and restore the decree 
of the Court of first instance. The parties 
will get their costs in this Court according 
to their success and failure and the defen- 
dant will get whole costs in the lower 
Appellate Court. 

z, K. Appeal partly allotted. 



MADRAS HIGH COURT. 

SECOND CIVIL APPEAL No. fc49 OF 1922. 

March 26, 1925. 

Present: Mr. Justice Phillips. 
MUNICIPAL COUNCIL, COCHIN 

REPRESENTED BY THE CHAIKMAN DEFENDANT 

No. 1 APPELLANT 

versus 

PRATATH BAVU DEVUS8I AND ANOTHER 

PLAINTIFF AND DEFENDANT No. 2 

RESPONDENTS. 

Madras District Municipalities Act (V of 188^), 8. 
201 Suit against Municipal Council for declaration 
of title to land -Notice, whether necessary Madras. 
Survey and Boundaries Act (IV of 181)7), s 13, appli- 
cability of Dispute (is to boundaries, absence of ' 
Adverse possession Sweeping land, effect of. 

Defendant Municipality sent a notice to the plaintiff 
informing him that he had no right to a certain piece 
of land and that he should establish his right by suit. 
The plaintiff thereupon instituted a suit against the 
Municipality for a declaration of his title to the 
land: 

Held, that the suit "vras not one on account of any 
act done by the Municipality within the meaning of 
s. 261 of the Madras District Municipalities Act- and 
that no notice was, therefore, necessary to be 'served 
on the defendant under that section [p, 19, col l.J 

In order to apply the ..provisions of s. 13 of the 
Madras Survey and Boundaries Act, it is necessary to 
show that there was a dispute before the boundary 
was settled, or an appeal was preferred from the 
settlement of the boundary. The meaning of the 
section is that when there has been a dispute between 
parties as to a certain boundary line and that dispute 
has been settled by a competent officer, that decision 
ie binding and can cnjy be .- ect aside by taking 



[92 I. 0. 1928] 



DEO KALI V. RANCHOOR BCX. 



19 



it.: r^:-i'! steps for that purpose within a certain 
1 !:*> .;, I ' cola. 1&2] 

The* act of sweeping a piece of land occasionally 
does not amount to adverse possession against the 
true owner, [p. 19, col 2.] 

Second appeal against a decree of the 
Court of the District Judge, South Malabar, 
in A. 8. No. 129 of 1921, preferred against 
that of the Court of the Subordinate Judge, 
Cochin, in 0. 8. No. 11 of 1918. 

Mr. A. V. K. Krishna Menon, for the 
Appellant, 

Mr. T. A. Ananta Iyer, for the Respond- 
ent. 

JUDGMENT. This is an appeal 
against a decree declaring plaintiffs right 
to certain land in Cochin Municipality. The 
District Judge has found that the land is 
used as a right of way, that it belongs to 
the plaintiff and that recently the Muni- 
cipality interfered with his possession and 
that consequently he is entitled to the 
declaration sued for. 

The main objection taken is that no notice 
of this suit was given to the Municipality 
under s. 261 of the District Municipalities 
Act of 1884 but inasmuch as this is a 
suit for declaration of title to immoveable 
property, it is difficult to see how it can be 
treated as a suit "on account of any act 
done by the Municipal Council." No doubt 
in the plaint, the cause of action is stated 
to be the putting and beating of gravel on 
the plaint site but if one looks into the 
facts it appears that the plaint has not been 
accurately drafted and the real cause of 
action is the notice sent by the defendant 
informing the plaintiff that he had no right 
to the property and that he should estab- 
lish his right by a suit. In that view I 
do not think this is a case which can come 
under 8.261 of the District Municipalities 
Act. In this connection I may refer to 
President of the Taluk Board, Sivaganga v. 
Narayanan (1) and also Syeed Ameer Sahib 
v. Venkatarama (2) arid Govinda Pillai v. 
Taluk Board, Kombakonam (3). 

The next objection is that the suit is 
barred by limitation by reason of the pro- 
visions of s, 13 of the Survey and Bounda- 
ries Act, In order to apply the provisions 
of this section, it is necessary to show that 
there was a dispute before the boundary 
was settled or an appeal preferred from the 
settlement of the boundary. In fact it means 

(1) 1C M. 317; 3 M L J. 12; 5 Tnd Dec. (N\ s) 928. 

(2) 1G M 293, 5 Ind, Dr*, (\*. a ) 913 

(3- 4 Ini, Cas. 32; 32 M, 37 J; 10 M. L. J, 333; 4 M. 
U T, 209, 



that when there has been a dispute between 
the parties as to a certain boundary line and 
that dispute has been settled by a competent 
officer, that decision is binding and can 
only be set aside, by taking appropriate 
steps within a certain time. In the present 
case there does not appear to have been 
any dispute at all. In fact the District 
Judge linds that notice of the settlement 
of the boundary is not proved to have been 
served upon the plaintiff. This objection 
must also fail. 

The District Judge has found that the pro- 
perty belongs to the plaintiff and that the only 
act of adverse possession by the Munici- 
pal Council has been the act of sweeping 
the land occasionally and that cannot be 
said to be adverse possession as against 
the real owner. There is no other reason 
for not accepting his finding in accordance 
with which his decree is right. 

The appeal is, therefore, dismissed with 
costs. 



v. N. 
z. K. 



Appeal dismissed* 



OUDH CHIEF COURT. 

SECOND CIVIL, APPEAL No. 310 OF 1924. 

November C, 1925. 

Present : Mr. Justice Raza. 

DEO KALI AND ANOTHER DEFENDANTS 

APPELLANTS 

versus 
RANCHOOR BUX AND ANOTHER - 

PLAINTIFFS RESPONDENTS. 
Hindu Law Reversions r, transfer by, during life* 
time of Widow, validity of~~Reverbwtu.r accepting 
transfer from other i^eterswner Estoppel Evidence 
Act (I of 1872], s. 115. 

A tiansfer made by a next reversioner during tlra 
lifetime Qf a Hindu widow who is in possession of 
her deceased husband's estate is inoperative under 
the Hindu Law, as during the widow's lifetime a 
revcrsioncr has no interest in the estate capable of 
transfer but merely an expectancy, [p. 20, col 2 ] 

Where, therefore, a reversiuiier of a deceased Hindu 
accepts a mortgage of certain property forming pait 
of the estate of the deceased from some other rever- 
sioners, he is net estopped fiom subsequently con- 
tending that he has a share in the property which 
was mortgaged to him, inasmuch as the mortgage is a 
void transaction and no estoppel can arise out of 
such a transaction, [ibid J 

Appeal against a decree of the Second 
Additional Subordinate Judge, Qonda, dated 
the 15th April 1924, upholding thaUofth* 



MtJbALl V. 

Munsif, Gonda, dated the 19th April 1923. 

Mr. S. M. Ahmad, for the Appellants. 

Mr. Makund Behari Lai, for the Respond- 
ent. 

JUDGMENT. -This is a defendants 1 
appeal arising out of a suit for possession 
of a certain property specified in the plaint. 
The parties are the descendants of one 
Kashi Ram. Kashi Ram had four sons, 
namely, Ratan Din Manodut, Siridat and 
Acharji. Ranchur Bakhsh plaintiff is one 
of the two sons of Sri Dat Deokali defend- 
ant No. 1 is the son of Mandat and Suraj 
Bakhsh defendant No. 2 the son of Acharji. 
Chhatarpal defendant No. 3 is the brother 
of the plaintiff. The plaintiffs' case was 
that Ratan Din was owner of the plots in 
suit, that he died childless about 30 years 
ago and was succeeded by his widow 
Musammat Biranji, that she also died in 
1912 leaving the parties as her nearest re- 
version ers and that the plaintiff was entitl- 
ed to a one-fourth share, but was in pos- 
session of a one- sixth share only. He, there- 
fore, claimed a one-twelfth share over and 
above the share already possessed by him. 
The suit was contested by the defendant, ) 
Nos. 1 and 2 on various grounds. The claim 
was decreed by the first Court and the 
defendants 1 appeal was dismissed by the 
Court of first appeal. It was held that 
Ratan Din was the owner of the plots in 
suit but after his death Musammat Biranji 
had been in possession of the land in suit 
till 1912. It was pleaded by the contesting 
defendants in respect of two plots Nos. 22 
and 622 that the plaintiff had taken a mort- 
gage of the plots from them and was, there- 
fore, estopped from denying their title so far 
as these plots were concerned. The lower 
Courts rejected the defence holding that 
there was no estoppel in the circumstances 
of the case. The contesting defendants have 
now appealed to this Court. Their learned 
Counsel Jias confined his arguments to the 
question of estoppel only. He contends that 
the plaintiff cannot question the right of 
the appellants in respect of plots Nor>. 22 
and 622 as he had taken a mortgage of 
those plots from the appellants. I am not 
prepared to accept the contention. It was 
a simple mortgage and was executed by 
Deokali appellant No. 1 on 30th May 1904. 
Musammat Biranji died in April 1912, It 
is clear that the mortgage was void as 
Deokali as the reversioner of Musammat 
Biranji had no rights to mortgage the plots 
jn dispute in her lifetime. 



rob T p 

l_yz i. u. 

As pointed out by their Lordships of the 
Privy Council in the case of Harnath %uar v. 
Indar Bahadur Singh (1) "a transfer made 
by a next reversioner during the lifetime of 
the widow is inoperative under the Hindu 
Law, as at its date he has no interest capable 
of transfer but merely an expectancy.' 1 

It is true that as between a mortgagor 
and his mortgagee neither can deny the 
title of the other for the purposes of the 
mortgage but the present suit is not a suit 
based on or connected with the mortgage. 
In my opinion the plaintiff is not estopped 
from questioning the validity of the mort- 
gage in the present suit. No other point was 
argued in this appeal. 

The appeal fails and must be dismissed* 
I dismiss this appeal and order the con- 
testing appellants to pay the costs of the 
contesting respondents. 

The decree of the lower Court is confirmed 
in all respects. 

z. K. Appeal dismissed. 

(1) 71 Ind. Gas. 620; 9 L. J. 652, (19*22; A I, R. 
(P. 0.; 403; 9 O & A. L. R. 270; 44 M. L. J. 489; 37 
C L. J. 346, 45 A 179; 27 C. W. N. 949, 50 I. A 69; 
18 L W. 383, 26 0, C 2?3; 33 M. L. T. 216; 5 P. L. 
T 281, 2 Pat. L, R. 237 (P.O.). 



MADRAS HIGH COURT. 

CIVIL REVISION PETITION No. 923 OF 19?3, 

August 18, 1925. 
Present: Mr. Justice Jackson. 
VEERA8WAMI MUDALI PLAINTIFF- 
PETITIONER 

versus 
P, R. VENKATACHALA MUDALI 

AND OTtfEKS DEFENDANTS NOS. 1 TO 5 

RESPONDENTS. 

Specific Relief Act (I of 1877), s. 9 Tenant, dis-> 
possession of Summary suit by landlord against tres- 
passer -, maintainability of Revision Interference by 
High Court Civil Procedure Code (Act V of 1908), 
s. 115. 

A plaintiff who seeks possession summarily under 
s. 9 of the Specific Kelief Act must show that at the 
date of the suit he ia entitled to such relief. A 
landlord, therefore, cannot bring a suit in ejectment 
under this section where his tenant has been dis- 
possessed by a third jmrty. [p. 21, col 2.] 

Ramanadan Chetti v, Pulikuti Servai, 21 M. 288; 8 
M. L. J 121; 7 Ind. Dec. (N. s.) 559, SitaRamv.Ram 
Lai, 18 A. 440; A. W, N. (1896) 162; 8 Ind. Dec. (N. s.) 
999 and Davood Mohideen Rowttier v. Jayarama Iyer t 
62 Ind. Cas. 284; 44 M. 937; 40 M. L. J 38; 13 L. W. 
281; (1921) M. W. N. 43; 29 M. L. T. 78, followed, 

The High Court will not ordinarily interfere by way 
of revision with a decree under B. 9 of the Specific* 
Belief Act. Wbere 4 however, the remedy under th^ 



[92 L o. mej 



YEEftASWAUI MUDALI V. VBNKATaCHALA MUDiLt 



21 



Section te clear, the parties will not necessarily bo 
driven to another suit, [p. 21, col 1.] 

Devata Sri Ramamurthi v. Venkata Sitarama- 
Chandra Row, 22 Ind. Oas. 279; (1914) M. W N 05, 
Sri Krishna Doss v. Chandook Ckand, 4 Ind Gas. 
509; 32 M. 334; 5 M. L. T. 125; 19 H. L J. 307, relied 
on. 

Petition, under a. 112 of Act V of 1908 and 
s. 107 of the Government of India Act, pray- 
ing the High Court to revise a decree of 
the Court of the District Munsif , Poonamalle, 
in O. 8. No. 475 of 1922. 

Mr. K. Rajah Iyer, for the Appellant. 

Mr. B. Somayya, for the Respondents, 

JUDGMENT, Plaintiffs in two con- 
nected suits Nos. 475 and 476 of 1922 on 
the file of the Court of the District Mnnsif 
of Poonamalle brought under s. 9 of the 
Specific Relief Act were unsuited on the 
ground that on the date of the suits, the 
plaint lands although trespassed upon by 
defendants were leased to others and, there- 
fore, only their lessees and not plaintiffs 
themselves were entitled to sue. This 
petition is brought in order to revise that 
decision. 

Plaintiffs have their remedy by way of 
suit and in such circumstances this Court 
will not ordinarily interfere by way of revi- 
sion, Devata Sri Ramamurthi v. Venkata 
Sitaramachandra (1). But if the remedy is 
clear, the parties will not necessarily be 
driven to another suit, [Sri Krishna Doss v. 
Chandook Chand (21] Therefore, the ques- 
tion for determination in this case resolves 
itself into whether there is clear authority 
supporting or contravening the decision of 
the District Munsif. 

There has been sharp divergence of 
judicial opinion upon the point as was 
clearly revealed when it came before a Pull 
Bench of the Allahabad High Court. 
Blennerhassett, J., could see no reason why 
a landlord who has put a tenant in posses- 
sion should not himself sue to eject a 
trespasser. Edge, C. J., affirmed as prevail- 
ing all the world over that when a man 
creates a tenancy under him which entitles 
the tenant to the exclusive use of the 
property the man creating the tenancy can- 
not have any right to actual possession so 
long as the tenant is entitled to possession. 
It was accordingly held with the concurrence 
of four other Judges that in these circum- 
stances plaint' ffs might be entitled to a 

(1) 22 Ind. Cas. 279; (1914) M, W. N. 95. 

(2) 4 Ind. Oas, 509: 32 M. 334, 5 M f L, T, J25; 19 M- 
t. J. 307 f 



declaratory decree that the trespasser could 
not interfere with his right to receive rent; 
and a decree to be put into possession of 
the rents; but so long as he did no L , him- 
self possess the right to enjoy physical 
possession, he could not eject the trespasser 
[Sita Ram v. Ram Lai (3).] 

Two years later the question came before 
a Bench of this Court, which assumed it to 
be an elementary rule that a plaintiff who 
seeks possession must show that at the date 
of the suit he was entitled to such relief 
[Ramanadan Chettiv. Pulikutti Servai (4),] 

So far the law on the matter was clear 
and the next Madras ruling [Jagannatha 
Gharry v. Rama Rayer (5)] hardly affected 
the previous decisions, for it was held that 
the landlord must be entitled to possession 
at the time of suit, and he was so entitled 
in that case because jthe lease had termi- 
nated immediately after the dispossession of 
the tenant by a third person and the tenant 
was no longer interested in the matter. 
But unfortunately 'the head-note to this 
ruling is drafted as if affirming that a 
landlord can always bring a suit for pos- 
session when his tenant has been dispos- 
sessed by a third party. For this unquali- 
fied statement there might seem at first to 
be better authority in Rangaswamy lyengar 
v Krishna Govindan (t>) when Sankaran 
Nair, J., sitting alone does appear to allow 
a landlord to sue for physical possession of 
property of which his tenant had been dis- 
possessed. But though that is the effect of 
the judgment, the 'reasoning proceeds on 
the assumption that it is only a question 
of receiving rent, a matter about which 
as Sir John Edge showed in Sita Ram v. 
Ram Lai (3) there is no difficulty. An earlier 
Madras case is cited [Innasi Pitlai v. 
Sivagnana Desikar(7)] which also is entirely 
confined to the question of rent; and before 
concluding Sankaran Nair, J., makes it clear 
that he is not differing from Ramanadhan 
Chetty v. Pulikutti Servai (4). It is not an 
easy judgment to understand, but it is no 
authority for holding that the landlord can 
sue in these cases. 

In Krishna Namhudri v. Secretary of 

(3) 18 A, 440, A. W. N. (1896) 162, 8 Tnd Dec. (N. s) 
999. 

(4) 21 M. 288; 8 M. L. J. 121, 7 Ind. Dec. (N. s) 
559. 

(5) 28 M. 238. 
(6) 8 Ind, Cas, 844; (1910) M. W. N. 838; 9 M, U T, 

21 (7) 5 M, fc. J. 95- 



22 mSASWAMI MBDALI t>. VRNKATAOHALA MUD ALL 

State (8), Wallis, J., and Abdul Rahim, J., 
re-affirmed [Ramanathan Chetty v. Pulikutti 
Servai(4)]andits statement of the elementary 
rule. 

Thus it may he said that at this date 
there was no real difference of opinion and 
the ruling of the Allahabad High Court 
Full Bench prevailed. 

In Ambalavana Chetty v. Singaravelu 
Odayar (9) a plaintiff who had long been 
out of possession seems to have suggested 
that if his tenant had been in possession 
(which was not the fact) there would be no bar 
of limitation. His plea was rejected on the 
facts but his hypothesis was fully discussed 
by 8undara Iyer, J., who has assembled the 
various rulings on the point. 

His Lordship says that it is held that the 
landlord where his tenant is ousted by a 
trespasser may sue under s. 9 of the 
Specific Relief Act in Rangaswami lyengar 
v. Rama Raycr (6) and Innasi Pillai v. 
Sivagnana Desikar(7). But as shown above 
none of these cases is real authority for 
that broad proposition. HI ' * ^, - 
that Hamanathan Chetty v. . 
(4) and Krishnan Nambudri v. Secretary of 
State (8) are against him, but on the whole 
is inclined to hold that the landlord has a 
cause of action (page 155*). This opinion it 
may be noted is obiter and is not very 
strongly expressed. 

In 1914 it was held in Somai Ammal v. 
Vellayya Sethurangam (10) that if a land- 
lord had given a lease to a tenant the 
landlord might eject a trespasser in order 
to put his tenant into possession. The 
tenant in that case "had not been put in 
possession at all, but was anxious to obtain 
possession." Such a case seems to proceed 
on the assumption that the landlord has 
a right to immediate possession in order to 
fulfill his contract and the elementary rule 
in Ramanathan Chetti v. Pulikutti Servai (4) 
would not then be infringed. It is not as 
though only the tenant had the right of 
immediate possession. 

In Tiruvengada Konan v. Venkatachala 
Konan (11) it was ruled that though a land- 
lord is not entitled to immediate or khas 
possession, he may obtnin a decree for the 
possesion of the reversion and for formal 

(8) 4 Ind Cas. 30, 19 M L J 317; 5 M L. T. 213. 

(9) 15 Ind Cas 146, (1912) M W N 669 

(10) 26 Ind. Cas. 317, 29 M L J 233, (1915) M. W. 
N. 12, 16 M. L. T. 532; 1 L W 1047 

(11) 32 Ind. Cas. 198; 39 M. 1042; 30 M. L. J 

" *?age of 15 Ind. Cas. (JBd.\ ' ~~" 



[92 I 0. 1826] 

possession. This ruling practically follow^ 
Sita Ram v.' Ram Lai (3). It also questions 
whether the obiter dictum in Ambalavana 
Chetty v. Singaravelu Odayar (9) is not too 
broadly stated. In 1916 the question came 
before Old field, J., and Phillips, J., Kathiri 
Unite v. Kutti Chekkutti Mudaliar (12). 
They held that a landlord could sue to 
enable himself to fulfil his contract to give 
or restore possession to his tenant. Of 
course, ifthe ruling stopped at the words u to 
give " it would merely re-affirm Somai 
Ammal v. Vellayya Sethurangam (10) but 
the addition of the words "to restore" opens 
up the whole question and in effect this is, 
a ruling contrary to Ramanathan Chetty v. 
Pulikutti Servai (4) Oldfield, J., begins by 
remarking that the exposition of the law 
in (Ambalavana Chetty v. Singaravelu 
Udayan) (9) is consistent with the decisions 
in Narainasaivmy Naidu Garu v. Yerramali 
Ramkrishnayya (13) and Somai Ammal v. 
Vellayya Sethurangam (10). The former 
merely states what is more elaborately de- 
veloped in the latter ruling that a landlord 
can sue in order to fulfil his contract to put 
his lessee in possession. Of course, the 
broader proposition in Ambalarana Chetty 
v. Singaravelu Udayan (9) that he can sue 
whenever his tenant is dispossessed is not 
inconsistent with these rulings. Then Old 
Field, J., finds that the rulings admit ex- 
ceptions to the general rule ; though it 
seems that they establish only one excep- 
tion, if it can indeed be called an excep- 
tion. This rule is that on the date of the 
suit the landlord must show that he has a 
right to be in possession. If he has never 
put his tenant in possession and has to get 
possession in order to do so, he has a right 
to be in possession and his suit is not in 
contravention of the rule. But when it is also 
claimed that after a landlord has put his 
tenant into possession and that tenant has 
been dispossessed, the landlord may sue to 
restore his possession, it is not to set up 
an exception to the rule, it is to negative 
the rule altogether. Oldfield, J., proceeds 
that he cannot follow Krishna Nambiar v. 
Secretary of State (8) in so far as it rules 
that a landlord cannot give or restore. 
Krishna Nambiar v. Secretary of State (8) 
is not concerned with the question whether 
he can give ; but it certainly rules that he 
cannot restore and in declining to follow 

(12) 39 Ind. Pas. 425; 5 L W. 330; (1917) M, W. N. 
339. 

(13) 5 Ind Cne, 479; 33 M. 499; (1910) H, W, N, 221 
and 280 " 



[921. 0. 192flJ 

this ruling Oldfleld, J., is maintaining the 
opposite and i;\vrr : 'line Ramanathan Chetti 
V. Pulikutt Servai (4). No doubt his Lord- 
ship seeks to distinguish this ruling by 
finding on ^the facts that the trespasser 
colluded with the tenant and is, therefore, 
(see concurring judgment of Phillips, J. j 
only the licensee of the tenant against 
whom the landlord can have no cause 
of action during the continuance of the 
lease. But in Ramanathan Chetty v. 
Pulikutti Servai (4) although it was al- 
leged in the plaint that the tenant and 
trespasser , had colluded there is no 
finding to that effect or any mention of 
collusioain the body of judgment, when 
their Lordships lay down the elementary 
rule they are not (")n*i-'l"npir collusion. 

Kathiri Kutti Musalic* v. Chek Kutti 
Musalier (12) must be taken as contrary to 
Ramanathan Chetti v. Fulikutti Servai (4) 
in fact Phillips, J., practically states, as 
much in his concluding sentence. 

The whole question was then reviewed by 
Wallis, C. J., in Davood Mohideen Rowther 
v. Jayarama Iyer ^14). The principle 
underlying the rule is fully explained and 
the three ruling cases Ramanathan Chetti 
v. Pulikutti Servai (4) Krishnan Nambiar v. 
Secretary of State (8) Sita Ram v. Ram lal (3) 
are approved. The acceptance of the obitor 
dictum in ^mbalarana Chettij v. Singara- 
velu Odayar (9) as authority is depreciated 
with an expression of regret that Sita Ram 
v. Ram Lal (3) was not brought to the notice 
of the learned Judge. The learned Chief 
Justice even goes so far as to find that the 
landlord cannot sue in order to fulfil his con- 
tract, at page 940* differing from the view 
already expressed by Sadasiva Iyer, J , in 
(Somai Ammal v. Vellayya Sethuranaga 
(10) which view Sadasiva Iyer, J., re-affirms 
in a dissenting judgment in this case; | Udoy 
Kumar Dass v. Katyani Debi (15)] it is held 
that the veivv of Sundara lyar, J , in 
(Ambalavelu Chetty v. Singaravelu Udya (9) 
cannot be justified on principle and is 
opposed to what :-::; * ' Tx>rd Alver- 
stone, 0. J., as -. -..- : doctrines 
[Walter v. Yolden (16).] 

I think it clear from the above exami- 
nation of the authorities that the view 

(14) 62 Ind. Gas. 281; 41 M. 037; 40 M L J 38, 13 
L. W. 281; (1921) M. W. N. 43; 29 M L. T. 78 

(15) 60 Ind. Cas 126; 41) 048 at p. 064; 35 C L J 
292; (1922) A. I R (C ; 87. 

(16) (1902) 2 K. B 301; 71 L. J. K. B 693; 87 L. T. 
97; 51 W. R 46; 18 T L R 668 



SAKT SAHAI fc, CHHOTAI XUfcMI. 



of the learned District Munsif is well-sup- 
ported and there is no justification for 
revision. 1 consider that the question is 
concluded by Sita Ram v. Ram Lal (3) 
Ramana'hm Chetty v. Pullilcutti Servai (4) 
Davood Mohideen Rowther v. Jayaram Iyer 
(14). The petition is dismissed with costs, 
v. N. v, Petition dismissed. 

Z. K. 



OUDH CHIEF COURT. 

FIRST EXECUTION OF DECKBB APPEAL 

No. 74 OF 1924. 

November 23, 1925. 

Present: Mr. Justice Hasan and 

Justice Raza. 
SANT 8 A.H AI APPLIC \XT APPELLANT 

cersus 

CHHTTTAT KURMI AND ANOTHER - 
DEFENDANTS RESPONDENTS. 

Civil Procedure Code (Act V of 1008), s. 1^8 
Limitation Act (IX of 1008), .<?. 6 -Mortgage, Redemp- 
tion suit Deere tal amount determined by Trial Court 
enhanced by Appellate Court Restitution -Applica- 
tion by mortgagee for recovery of mesne profits, whe- 
ther application for erecitl ion- -Minority of applicant 
--Limitation, extension of 

Where in pursuance of a decree for redemption 
passed by a Trial Court, the plaintiff pays the amount 
mentioned in the decree and obtains possession of the 
moitgaged property, but the amount payable under 
the decree is subsequently enhanced by the Appellate 
Court, an application by the mortgagee to recover 
m rt sne profits from the mortgagor by way of restitution 
for the period between the date on which possession 
of the mortgaged property was taken by the mort- 
gagor und the date on which he paid the difference 
between tho decretal amount payable under the 
decree of the Trial (-ouit and that payable under the. 
decree of th? Appellate Court, is an application for 
execution within the meaning of s 6 of the Limitation 
Act andUie mortgagee is entitled to the benefit of 
the provisions of that section [p 24, cola. 1 & 2] 

[Case-law discussed ] 

Appeal against an order of the Sub- 
ordinate Judge, Fyzabad, dated the 22nd 
September 1924. 

Mr. II. K. Ghosh, for the Appellant. 

Messrs. U. Husain and N iamatullah, for 
the Respondents. 

JUDGMENT. This is an appeal from 
the decree of the Subordinate Judge of 
Fyzabad, dated the 22nd September 1924. 
The facts are few and simple. On the 12th 
August 1911 the respondents brought a suit 
for redemption of a usufructuary mortgage 
dated the 2: } nd August 1903 against the 
appellant. In defence the appellant claimed 
money due under two deeds of further 



SANT 8AHAI V. CHHDTAI KURMI. 



charge also as the price of redemption. The 
Trial Court rejected the respondents 1 claim 
and decreed redemption on payment of 
Ks. 11,329-7. This amount was paid within 
the time fixed by the redemption decree to- 
gether with a certain amount of costs and 
the respondents entered into the possession 
of the mortgaged property on the 25th 
August 1912. On an appeal to the late Court 
of the Judicial Commissioner of Oudh the 
decree of the Trial Court in the matter of 
the amount redemption money was varied 
in favour of the appellant and the respond- 
ents were ordered to pay the sum of 
Rs. 12,119-15-3 to the appellant for the 
purpose of redeeming the mortgaged pro- 
perty. On the 12th November 1913 the 
respondents paid the difference between the 
two sums of money payable under the decree 
of the Trial Court and the decree of the 
Judicial Commissioner's Court. 

The application, out of which this appeal 
arises, was made on the 28th May 1923 by 
appellant for the purpose of recovering 
Rs. 2,665 from the respondents as mesrie 
profits, by way of restitution, for the period 
between the dates of the two deposits 
already mentioned. The application was 
made under s. 44 of the C. P. C. To save 
limitation the appellant claimed the benefit 
of s. 6 of the Indian Limitation Act, 1908, 
for the reason that at the time from which 
the period of limitation was to be reckoned 
he was a minor. One of the pleas in defence 
to the appellant's claim was that the 
provisions of s. C of the Indian Limitation 
Act were inapplicable because the appel- 
lant's application was not "an application 
for execution of a decree," to which those 
provisions apply. The Court below has 
accepted this plea and dismissed the appli- 
cation. 

We are of opinion that the appeal suc- 
ceeds. We are unable to discover any 
reason in principle for entertaining the 
view that an application made for restitu- 
tion under s. 144 of the C. P. C. is not an 
application for the execution of a decree. 
This is particularly true in a suit founded 
on a p- , rluMiro to which the provisions of 
O. XXXI V of the C. P. C. apply. The decree 
in a suit for redemption, as the present suit 
was, enures to the benefit of the mortgagor 
and the ir.orStMirw alike. Such a decree 
imposes an obligation on the mortgagor in 
favour of the mortgagee for payment of the 
mortgage-money and in the event of pay- 
the mortgagor enters into possession 



[9210,19263 

when the mdrtgage is usufructuary and in 
default the mortgagee is given the right to 
bring the property to sale in satisfaction 
of the mortgage-money. The final decree, 
therefore, which the Court of the Judicial 
Commissioner passed imposed the liability 
of payment t of a further sum of money on 
the mortgagor before he was entitled to 
take possession. This obligation or* the 
part of the mortgagor created a correspond- 
ing right in favour of the mortgagee to 
remain in possession until full payment as 
directed by the final decree was made. We, 
therefore, have no hesitation in holding 
that the present application is in substance 
an application made for seeking the aid of 
the Court in working out the final decree. 

The right of restitution arises under a 
decree of the Court of Appeal which decree 
has varied or reversed the decree of the 
Court of first instance. Restitution is thus 
a benefit which would only accrue by exe- 
cuting the decree of the Court of Appeal, 
Under the old C. P. C. an application 
made under s. 583 of that Code was treated 
by their Lordships of the Privy ^ Council 
as an application for execution in Prag 
Narain v. Kamakhia Singh (1). A Divi- 
sional Bench of the High Court at Allah- 
abad in the case of Jiwa Ram v. Nand 
Ram (2) has expressed the opinion that the 
law as enacted in s 144 of the new Jode is 
different from what it was in s. 583 of the 
old Code. With great respect we are unable 
to agree with that opinion. It is true that 
the words "execution" and "to execute'* 
were used in s 583 of the old Code and are 
not used in s. 144 of the new Code, but this 
change, in our opinion, makes no difference 
in substance. Those words, it appears to us, 
were superfluous and the law remains the 
same in spite of their disappearance, As 
we have said before, an application for 
restitution is the same thing as an applica- 
tion for execution of a decree passed in 
appeal when that decree varies or reverses 
the decree of the Court of* first instance. 
The view taken in the Allahabad case seems 
to be shared by some of the Judges of the 
High Court at Patna [see Balmakunda 
Marwari v. Basanta Kumar Dassi (3) and 

(1) 3 Ind Cas 798; 31 A. 551; 10 C. L. J. 257; 11 
Bom. L. R. 1200; 6 M. L. T. 303; 14 G W. N. 55; 19 
M. L. J. 599; 13 O. C, 180; 36 I . A. 197 (P. C.). 

(2) 66 Ind. Cas, 144, 44 A. 407; 20 A. L. J. 226; 
(1923) A. I. E f A ) 223. 

(3) 78 Ind Cas 200; 3 Pat. 371; (1924=) Pat. 33, 5 P^ 
L, T. Ho; (WK) A, J. R, (Pat) I, 



12 X. 0. 1928] AHMAD BA1G fl, MODBL 

Krupasindhu Roy v. Batthadra Das (4) and 
also by the late Chief Court of the Punjab 
in Ram Singh v. Sham Parshad i(5). With 
regard to these cases we content ourselves 
with quoting a passage from the judgment 
of Macleod, C. J., in the case of tiamidalli 
v. Ahmedalli (6) and say respectfully that 
we ^ entirely agree with the opinion express- 
ed in that quotation, which is as follows :~ 
"No doubt, as mentioned by Mr. Mulla in 
his Code of Civil Procedure, last edition, 
page 315, a different view has 4< been 
taken by the High Court of Patna and 
the Chief Court of the Punjab. With all 
due respect to the learned Judges of 
of those Courts, it appears to me that tfce 
decision I have referred to is correct, and 
that an application for restitution cannot 
be ^ treated as anything else than an appli- 
cation for execution of the decree of the 
Appellate Court. It is the decree of the 
Appellate Court which entitles the sucess- 
ful appellant to get back something which 
he had been deprived of by the decree of 
the lower Court, under which the then 
successful party had actually received pos- 
session. In order, therefore, to get back 
what he has lost, the successful appellant 
must apply for execution of the order which 
entitles him to get back that possession. 11 
In Kurgondiganda v. Ninganganda (7) it 
was held that the provisions of s. G of the 
Indian Limitation Act applied to an appli- 
cation made under s. 141 of the C. P. C., in- 
asmuch as that was an application for exe- 
cution of a decree. Another case decided 
by the Bombay High Court on the same 
lines is ^Shirbai v. Yesu (8). We wish to 
emphasize that the view which weare taking 
is supported by the authority of the opinion 
of Sir Dawson, Miller, C. J., of the Patna 
High Court in the case of Basanta Kumari 
Dassi v. Balmakund Marwari (9). Our opin- 
ion is further fortified by the decision of a 
Bench of the Madras High Court in the 
case of Sumasundaram Filial v. Chokkal- 
ingam Pillai (10). The same view seems 
to have been taken by the Calcutta High 
Court in Madan Mohan Dev v. Nogendra 



(4j 47 Ind Cas. 47; 3 P L J 367 

(5) 44 Ind Cas. 301; 67 P. K. 1918; 36 P. W R. 
1918; 15 P. L. R. 1918. 

(6) 62 Ind. Caa. 233; 45 B. 1137; 23 Bom. L. R. 480. 
m 41 Ind. Gas. 238; 41 B. 625, 19 Bom. L,R 638. 
(B) 48 Ind. Cas. 130; 43 B. 235; 20 Bom. L. R. 925. 

A ^ P I? d Oas - 918 2 Pat - * 277 *> < 1923 ) p at' 
A I. R. (Pat.) 371; 1 Pat L. R. 338. 

(10) 38 Ind. Cas. 806, 40 M, 780; 5 U W, 267, 



MILL KAGPUR, LD. 25 

Nath Dey (11) and Gtngadhar Maruuri v. 
Lachman Singh (12), 

On the gounds stated above, we allow 
this appeal, set aside the decree of the 
lower Court and, as the decision of that 
Courb had proceeded on a preliminary point 
we remand the case under O. XLI, r. 23, 
of the C. P. C M with directions that the case, 
be re-entered in the proper register to its 
original number and disposed of accord- 
ing to law. The appellant will be entitled 
to his costs in this Court in all events. 
The costs in the lower Court will abide the 
result. 

z. K. Appeal allowed. 

(11) 39 Ind. Cas. 640; 21 C. W. N. 541. 
(12; 6 Ind Cas. 125; 11 C. L J. 541. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

FIRST CIVIL APPEAL No. 14 OF 1925. 

June 30, 1925. 

Present: Mr. Findlay, Officiating J. C, 

Mirza AHMAD B AIG AND OTHERS 

DEFENDANTS APPELLANTS 

versus 

MODEL MILL NAGPUR, LTD. PLAINTIFF 
RESPONDENT. 

Transfer of Property Act (IV of 1882), s. 100 
Charge, oral, legality of Bcma fide purchaser for 
vfilue, whether affected Benami transaction Proof, 
nature of 

A charge may be created orally in India. If it is 
in writing the document creating it must be registered, 
[p 27, col 1.] 

A charge cannot be enforced against a bona fide, 
purchaser for value and the absence of the publicity 
which is secured by rrgi-lrMtMii cannot in the case 
of an oral charge prejudice the right of third parties 
dealing with the property for value in good faith. 
[ibid.] 

In view of the extraordinary prevalence of benami 
transactions in India, even a slight quantity of evi- 
dence may suffice to prove it. [p 27, col 2 ] 

Appeal against a decree of the Sub- 
Judge, First Class, Nagpur, dated the 31st 
October 1924, in Civil Suit No. 192 of 
1953. 

Mr. V. N. Herlekar, for the Appellants. 

Mr. M. B. Kinkhede, R. B , for the Re- 
spondent. 

JUDGMENT. The plaintiff-respond- 
ent, the Model Mills Nagpur, Limited, 
sued the defendant appellants in the Court 
of the Subordinate Judge, First Class, Nag- 
pur, for possession of a house situated on 
the outskirts of Nagpur and for damages 
thpreaucnt. 

The first three defendants are real 
; the defendants Nos. 4 and 5 are 



26 



AHMAD BAIG V. MODEL MILL NAGPUfl, LD; 



the minor sons, and defendant No. 6 the 
minor daughter of defendant No, 1; de- 
fendant No. 7 is the minor daughter of de- 
fendant No. 2; and defendant No. 8 is the 
mother-in-law of defendant No. 2. 

By a registered sale-deed, dated the 
27th ol January 1923 (Ex. P-2), the first 
seven defendants sold the house in suit to 
the plaintiff Company. The plaintiff's case, 
further, was that after the execution of the 
sale-deed the first seven defendants being 
the vendors, requested the Managing 
Director of the Model Mills, Sir M. B. 
Dadabhoy to allow them to occupy the pre- 
mises on sufference for a period of two 
months only, which was to expire on the 
31st of March 1923, This was permitted. On 
lObh March 1923 registered notices were sent 
to the iirst three defendants requiring 
them to vacate the premises by the date 
in question, and holding them liable for 
damages if they failed to do so. Defend- 
ants Nos. 1 and 2 wrote in reply to say 
that they had already surrendered the 
house, while defendant No. 3's notice came 
back endorsed as refused. The plaintiff's 
case further was that the first three defend- 
ants and defendant No. 8 had colluded 
and that the latter defendant had been dis- 
honestly set up to obstruct the plaintiff 
from getting possession, the object being 
to obtain further money in respect of the 
sale transaction out of the Company. Pos- 
session of the house was accordingly claim- 
ed, as well as damages for seven months 
from the 1st of April to the 31st of October 

1923 

Defendants Nos. 1, 2, 4, 5 and 6 ad- 
initted the execution of the sale-deed and 
Stated that they have no interest therein. 
The case proceeded ex parte against de- 
fendant No. 3, while as regards the minor 
defendant No. 7 her father defendant No.2 
refused to act as guardian ad litem and 
accordingly defendant No. 8 was so ap- 
pointed f lhe real contesting defendants, 
i. e., defendants Nos. 7 and 8, took up the 
following position. 

Their defence was that defendants 
Nos. 1, 2 and 3 had no right to sell the 
property in suit, that the defendants Nos. 
7 and 8 each had interest in it, that the 
house site was bought by defendant No. 3 
and the late Hamidabibi, wife of defend- 
ant No. 2, by a sale-deed dated the 27th 
of October 1919, and that they had built 

e bouse thereon. Further, it was alleged 
for the" construction ol the house the 



defendant No. 8 and Mu&tmmat Rahani- 
bibi, the mother of the first three defend- 
ants had each advanced Rs. 6,000 on 
the understanding that the entire premises 
should remain in their possession as a sort 
of a possessory mortgage till the re-pay- 
ment of the whole amount. Further pleaa 
. as regards the shares of the various de- 
fendants in the property were offered, which 
it is unnecessary to consider at present. 

In the first Court the original Judge 
who dealt with the case, gave a finding 
as regards the alleged advance of Rs. 12,000 
by the defendant No. 8 and Rahanibibi. 
This finding was that the alleged con- 
tract of possessory mortgage, not being 
in writing and registered, could not be 
proved by oral evidence. The Subordinate 
Judge who finally dealt with the case 
found that the sale in favour of the plaint- 
iff had been duly proved and that con- 
sideration had passed. He also held that 
Hamidabibi had been a mere benami pur- 
chaser of the site and had no real interest 
therein or in the house in suit. As regards 
defendant No. 8, she was also held to have 
no interest in the house in suit. It was 
further held that the plaintiff Company 
had no knowledge whatever of defendant 
No. 8 having any right or interest in the 
property when the sale-deed in its favour 
was executed. Again, it was held that 
defendants Nos. 1, 2 and 3 were the sole 
owners of the house and that the names 
of the minor defendants were only included 
in the sale-deed in order to avoid future 
trouble. Other incidental findings were 
given which need not be repeated here. 

On appeal the first position taken up 
was that the lower Court was wrong in 
excluding the evidence as to the alleged 
advance of Rs. 12,000 by defendant 
No. 8 and Rahanibibi. It is now urged 
that defendant No. 8 had never claimed 
mortgage interest in the house. It is not easy 
to see how this position can now be consist- 
ently taken up, in view of the latter portion 
of para. 2 of these defendants 1 written state- 
ment on the record. The language used 
in this written statement was inartistic from 
the legal point of view ; but if it can fairly 
be construed at all, it certainly implies that 
a mortgage like lien existed on the property. 
It is urged that the right the defendant 
No. 8 claimed to have over the property 
might be described as a charge, and I have 
been referred to the fact that under the 
Transfer of Property Act there is no pro- 



t92 I. 0. 1926J 



BA1G V. MODEL MILL NAGPUR, LD, 



27 



prescribing a definite mode in which 
a charge should be created ; but it seems to 
me perfectly immaterial, however, for the 
purposes of the present case to go into this 
question, for the simple reason,' that a charge 
cannot be enforced against a bona fide 
purchaser for value. That is indeed "the 
reason why in law in this country a charge 
may be created orally, although, if it is in 
writing, the document in question must be 
registered. Thus, the absence of the publi- 
city ^ which is secured by registration can- 
not in the case of an oral charge prejudice 
the right of third parties dealing with the 
property for value in good faith. On this 
part of the appeal, therefore, my finding is 
that on the pleadings made by the defend- 
ants in the lower Court, that Court was 
correct in its excluding the oral evidence 
as to the alleged agreement with reference 
to defendants No. # remaining in possession 
of the house until the money alleged to have 
been advanced by her for the purchase was 
refunded. If, on the oilier hand, it had 
been permissible to regard this alleged 
agreement as constituting a charge, the 
appellants would be no farther than before, 
BO long as the lower Court's finding that the 
Model Mills Company had no notice of 
defendant No. S's claim to the house stands 
good. No document is in existence in im- 
posing any species of lien or charge on the 
estate, and clearly, therefore, from this 
point of view defendant's only remedy in 
this connection is agiinst her alleged 
debtors, to whom she had advanced the 
money in question. 

I next pass to the second ground of 
appeal, which is to the effect that the lower 
Court was wrong in holding that Hamidabibi 
was a mere bcnami purchaser of the site of 
the house in question and that she had no 
interest therein. Tn para. 2 of the plaintiff's 
written statement, dated the 7th of March 
1924, it was admitted that the sale-deed of 
27th January 1923 contained the name of 
Hamidabibi, wife of Hafizulla Baig. It is 
unfortunate that this sale-deed has not been 
available in the case, but the plaintiff's sale- 
deed (Ex. P. 2) recites the fact that the 
purchase was made in the joint names of 
defendant No. 3 and of defendant No. 2's 
wife Hamidabibi. 

Incidentally, I may observe here that 
much has been made by Counsel for the 
appellants of the fact that one of the most 
important witnesses in this case is Sir M. B. 
Dadabhoy, a gentleman occupying a high 



position in Indian society, and it has been 
suggested that his evidence requires careful 
scrutiny. I fully concur that this gentle- 
man's evidence must receive the same 
scrutiny as that of any other witness. But 
even so, I cannot see the slightest reason 
for supposing, as has been" suggested by the 
appellants, that he has been influenced in 
his attitude as a witness by the idea, he is 
said to have entertained, that the present 
suit was nothing more or less than an at- 
tempt at blackmail or, as I have preferred to 
say, an attempt by private individuals to ob- 
tain more money in respect of the sale tran- 
saction out of a wealthy Company. For my 
own part, I do not see a shadow of ground 
for suspecting, in the least, the bona fides 
of any part of the evidence of this witness. 
He states that on making enquiry with re- 
ference to the defendant's title, defendant 
No. 2 informed him that his wife's name 
had been recorded for the simple reason 
that he himself was then in Government 
service and as such was prohibited by rules 
applicable to him from ordinarily acquiring 
immoveable property. When to this all im- 
portant admission by the defendant No 2 is 
added the fact that none of the first three 
defendants entered the witness-box, there is 
not, in my opinion, the slightest reason, for 
doubting the correctness of the lower Court's 
finding on issue No 2 (a) and (6) to the effect 
that the site of the house was purchased, in 
reality, by the three brothers, defendants 
Nos. i, 2 and 3 and that Hamidabibi was a 
mere bcnami purchaser. 

The principles enunciated by their 
Lordships of the Privy Council in Moham- 
med Mahbub All Khan v. Bharat Iiulu (1) 
are fully applicable to a case like the pre- 
sent. In view of the extraordinary pre- 
valence of benami transaction sin India, even 
a slight quantity of evidence may suffice 
to prove it. In this case we have 
the all important admission of defend- 
ant No. 2 himself made to Sir M. B. 
Dadabhoy to the effect stated above. In 
this connection I think this statement com- 
bined with the fact that defendant No. 2 
was a Government servant sufficiently es- 
tablishes the point, especially as the defend- 
ant has not gone into the witness-box on 
the other side. I may add on this ques- 
tion, viz, with reference to the money re- 
quired for the purchase of the site that in 
the defend ants' lengthy written statement 

(1) 53 Lid. Caa, 5$; 23 C. W. N. 321; (1919) JI. W, 
N. 507 (P. 0,). 



AHMAD BAlO V. MODEL MILL NAGPUR, LD, 



no mention was made of the fact that Hami- 
dabibi had advanced the money for the 
site. This story seems to have been deve- 
loped for the first time by defendant No, 8 
when examined as D. W. No. 1. Kar story 
then was that she advanced Rs. 300 and 
Asiaualla adva/ased the other Its. 300. The 
very flimsy evidence of this witness and of 
Wazirkhan (D. W. No. 3) is, in my opinion, 
wholly insufficient to establish this story of 
how the consideration for the purchase of 
the house site was obtained, and I do not 
think that it could, with any safety, be ac- 
cepted. 

The third ground of appeal is to the 
effect that the lower Court should have held 
that the plaintiff Company purchased the 
house with fall knowledge of defendants Nos. 
7 and 8's rights. For my own part, I find 
it impossible on the evidence on record to 
admit that this supposition is even a reason- 
able one a priori, much less that it has been 
established by the evidence on record, It 
is perfectly clear that Sir M. B. Dadabhoy, a 
lawyer himself, made every possible en- 
quiry before launching into the purchase. 
In this conection the evidence of the prior 
mortgagee Narayan is highly important. 
His enquiries, before he had advanced money 
on the property, had also led him to the 
sarneconclusion, i.e >that the defendants Nos. 
1 to 3 were the owners of the property. It 
would be the last thing in the world which 
a business Company like the plaintiff one 
would do to embark on a purchase of this 
sort without making adequate enquiry, and 
I cannot find any reason whatever for hold- 
ing that the plaintiff Company had any no- 
tice whatever of defendant No. 8 having 
any interest in the house. 

The 4th ground o appeal is to the 
effect that the lower Court ought to have 
held that defendant No. 2 was not the guard- 
ian of defendant No. 7 and that the alleged 
sale in favour of the plaintiff was not for 
the benefit of the minor and was not bind- 
ing on her. On this point I have little or 
nothing to say. I fully concur with the 
finding of the lower Court on issues Nos. 5' 
and 6 which relate to this ground of appeal. 
It is indeed suggestive of the fact that there 
is collusion between all the defendants that 
the .second defendant should in the present 
suit have refused to act as a guardian for 
his own daughter. This step has presum- 
ably bsen taken with the object of support- 
ing the plea that defendant No. 7's interest 
was adverse tp that of defendant No, 2, 



[92 I, 0, 1926] 

the position is absurd on the face of it and 
requires no elaboration. The property in 
question clearly belonged to the first three 
defendants and it is, moreover, in evidence 
that the heavy prior mortgage in favour of 
P. W. No. 8 and another has been cleared 
off as a result of the present sale. 

The 5th ground of appeal was not argued 
in detail. So far as the finding on issu6 No. 
8 is concerned, no discussion is required. 
As regards the applicability of s. 41 of the 
Transfer of Property Act to the case I 
concur with the lower Court's finding. This 
matter is, in reality, linked with the question 
of whether there has been a collusion bet- 
ween defendant No. 8 and the defendants 
Nos. 1 to 3. In a matter of this sort collusion 
cannot, as a rule, be proved by specific and 
directevidencebutcan only be inferred from 
the general circumstances of the case, For 
my own part, I think all the circumstances 
are redolent of suspicion of collusion and 
fully warrant the presumption that there 
has been such collusion. Sir M. B. Dada- 
bhoy 's evidence is of value in this connec- 
tion. It is apparent that in a fruitless 
attempt he made to get the defendants 
to vacate the house, Sir M. B. Dadabhoy 
had spoken with defendant No. 8 through 
a window and it is significant that defend- 
ant No. 8 as D W. No 1, in cross-examina- 
tion, practically admitted the fact This 
same defendant, (No. 8) had on this occasion 
informed Sir M. B. Dadabhoy that they 
would vacate the house when defendant 
No. 2 t who was presumably away on tour, 
had returned. I utterly disbelieve the 
evidence of Musammat Najmunnisa In- 
deed, her evidence, read in itself, is to be 
disbelieved on the face of it. Her cock 
and bull story that she had been on 
bad terms with the first three defendants 
for a year and a half and that they had 
vacated the premises, is directly contradict- 
ed by Sir M B, Dadabhoy 's evidence, who 
saw defendant No 3 there during the time 
in question. In this connection the in- 
trinsic improbability of defendant No. 8's 
story is apparent on the face of it. Her 
husband, and Excise Inspector, who drew 
Rs. 150 a month, died 20 years ago, and she 
alleges that he left Rs. 15,000 to Rs. 20,000 
in cash and ornaments behind him. She 
cannot even tell the name of th Bank in 
which some of (his monev is sai I to be 
depcs*'r<3 The evidence, in short, proves 
that thi.*i woman has been living with the 
other defendants for many years past and 



' 1. 0. 



SITAPAT RAM V. MOHAMMAD 



has been in constant and close touch with 
them. It is impossible to suppose that she 
was not fully aware of the sale transaction 
from the very first and it is clearly impossi- 
ble to suppose that there has not been 
direct and deliberate collusion between 
the first three defendants and herself. If the 
evidence of Ramchandra (P. W. No. 3;, 
Sir M. B. Dadabhoy (P. W. No. 7) and 
Narayan(P, W. No. 8) be read together, 
the statements of these witnesses seem to 
me to fully warrant the presumption of 
collusion. From defendant No. 8's talk 
with Sir M. B. Dadabhoy at the house 
it is noticeable that she did not even 
then lay any claim to the house in suit 
and only gave an evasive reply that 
possession would be given when defendant 
No. 2 returned. Defendant No. 8 indeed 
alleges that on this occasion she told the 
Model Mills people, who had come to take 
possession, that she would not vacate the 
house because she and defendant No. 7 
were interested therein, but I find it 
impossible, for one moment, to accept this 
story. 

Holding, as I do, like the lower Court, 
that all these defendants have, been col- 
luding together, the first three defendants 
are also liable on account of niesne profits 
as claimed. I can, in short, see no reason 
for differing from the findings of fact 
arrived at by the lower Court. The case 
seems to me a very clear one, in which 
defendants Nos. 1 to 3 and defendant No. 8 
have at the last moment elaborated between 
them a conspiracy with the object of 
defeating the plaintiff's claim, or at least 
of inducing the plaintiff to make a further 
payment so as to obtain the acquiescence 
of defendant No. 8 to the Company 's entry 
into the house. As already shown, the 
theory of mortgage or of charge is in any 
event utterly unavailable to defendant 
No. 8 in the present case as an answer to 
the plaintiff's claim to enter as a purchaser 
for value. Similarly, in view of the finding 
as regards collusion, the defendants Nos. 1 
to 3 as well as defendant No. 8 are clearly 
liable for mesne profits to the plaintiff. 

The result is that the appeal is dis- 
missed. The appellants must bear the 
respondent's costs. Costs in the lower 
Court as already ordered. 

An application has also been filed by 
the plaintiff under s. 152 of the C. P. C. to 
the effect that there has been an arithmeti- 
cal or clerical mistake in the decree of the 



lower Court, which shows the fee as 
Rs. 304, whereas it ought to be Rs. 344. 
This is clearly so and the corresponding 
correction will be made in the decree. 
G. R. D. Appeal dismissed. 



OUDH JUDICIAL COMMIS- 
SIONER'S COURT. 

FIRST EXECUTION OF DECREE APPEAL No. 56 

OF 1925. 

October 26, 1925. 
Present : Mr. Ashworth, A. J. C., 

and Mr. Neave, A. J. C. 
Babu SITAPAT RAM JUDGMENT-DEBTOR 
APPELLANT 

versus 

Mirza MOHAMMAD ASQHAR AND ANOTHER 
DECRKE- HOLDERS RESPONDENTS. 

Execution of decree- Proclamation of sale Appli- 
cation of decree-holder relating to property to be pro- 
claimed for sale, decision of Appeal, absence of 
Judgment-debtor, i^kether bound. 

An application by a decree-holder in respect of the 
property which should he proclaimed for sale in 
execution of the dcciee must be decided by the P^xe- 
cution Court, and the order of the Execution Court 
deciding such an application, if not objected to by 
way of appeal, must bo held to be binding on the 
judgment-debtor during the subsequent stages of the 
execution proceeding, [p. 30, col. 1.] 

Appeal against an order of the Subordi- 
nate Judge, Fyzabad, dated the 25th May 
1925. * 

Messrs. Wasi Hasan and J. Jackson, for 
the Appellant. 

Mr. H. K. Dhaon and Niamatullah, for 
the Respondents. 

JUDGMENT. This appeal arises out 
of an application made by the appellant to 
the Subordinate Judge of Fyzabad in the 
course of execution proceedings. The 
appellant executed a mortgage of certain 
property and in the mortgage it was men- 
tioned that he had acquired the property 
under a certain Will. The mortgagee 
obtained a decree for sale of the property 
mortgaged and applied in execution for 
sale. The execution of the decree was trans- 
ferred from the Court where the decree was 
obtained to another Court. Before the sale 
proclamation was issued the decree-holder 
applied that he had come to the conclusion 
that the Will only gave the mortgagee a life- 
interest. Accordingly he asked that a life- 
interest and not an absolute title to the 
property should be put up for sale. This 
application was granted after notice had 
been given to the judgment-debtor and h^ 



<tJQ APPAJEB PILLA1 \ 

had failed to appear. This was on the 14th 
February 1923. The sale waa postponed 
for various reasons and ultimately the 20th 
April 1925 WHS fixed. On the 18th April 
the present appellant filed objections to the 
sale taking place. Amongst other was the 
objection that the order of the Court allow- 
ing a life-interest only to be sold was ultra 
vires. The lower Court decided that it was 
not competent to go into the question of 
the validity of the order which was by a 
predeeessor-in-office, hence this appeal. 

We are of the opinion that the decision 
of the lower Court is correct. It is not neces- 
sary for us to decide whether the Court was 
originally correct in allowing the applica- 
tion of the decree-holder for sale of the life- 
interest only. The matter was settled by 
an order of the Court having jurisdiction. 
Any application by a decree-holder in 
respect of the property which shall be pro- 
claimed for sale is rightly one to be decided 
by the Execution Court. That Execution 
Court may decide it rightly or wrongly. 
It may even decide that it has jurisdiction, 
where, on a proper view of the law, it 
might beheld that it had no such jurisdic- 
tion. The time for appealing against the 
decision has gone by and it must stand as 
'a final decision. Accordingly we see no 
reason to interfere with the decision of the 
lower Court and this appeal is dismissed 
with costs. 
, z. K. Appeal dismissed. 



MADRAS HIGH COURT. 

SacoND Civn, APPEAL No. 480 OF 1922. 

October 29, 1924. 
Present: Mr. Justice Devadoss. 
APPAJEE PILLAI PLAINTIFF - 
APPELLANT 

versus 

MANIKA MUDALI DEFENDANT- 
RESPONDENT. 

Promissory note, unit on Consideration alleged by 
plaintiff^ disproof of, effect of Procedure. 

In a suit on a promissory-note plaintiff stated that 
cash consideration had passed at the time of the 
execution of the promissory-note. The defendant's 
plea was that the pro -note was executed as a sort of 
security for his good conduct in connection with a 
partnership which was being carried on between him 
and the plaintiff's brother. The Trial Court found 
that no cash consideration had passed and that the 
story of the defendant was true, the pro-note having 
"been executed as sscurity for accounting for sums 
drawn by the defendant aa a paitncr 

Held, that on the finding of the Trial Court the suit 
jva-i bouaci to be dismissed and that that finding could 



'. MANIKA MUDAU. [92 I. 0. 1926,] 

not be construed as declaring the contingent liability 
of the defendant at the time of the settlement of 
accounts. 

Second appeal against a decree of the 
Court of the Subordinate Judge, Vellore, 
in A. 8. No. 13G of 1921, preferred against a 
decree of the Court of the District Munsif, 
Tirupathur, in 0. 8. No. 361 of 1919. 

Mr. K. V. Sesha lyengar for Mr. V. C. 
Seshachariar, for the Appellant. 

Mr. A.Suryanarayana, for the Respond- 
ent. 

JUDGMENT. The only point urged 
in this second appeal is that the Subordi- 
nate Judge's finding is not a legal finding. 
The suit is on a promissory-note. The 
plaintiff stated that cash consideration 
passed, at the time of the execution of the 
promissory-note. The defendant's plea was 
that no cash consideration passed at the 
time, but it was executed, as a sort of secu- 
rity, for his good conduct, in connection 
with the partnership which was being carri- 
ed on between him and the brother of the 
promisee of the promissory-note. The 
Subordinate Judge found that no cash 
consideration passed and "the story of the 
defendant is true. Mr. Sesha lyengar 
wants to build an argument upon the last 
but one sentence of his judgment. 

" The result is inevitable that the pro- 
missory-note Ex. A, renewing Ex. B is also 
a security merely for accounting for sums 
drawn by defendant as a partner." 

From this, he wants to argue that the 
Subordinate Judge found that there was a 
contingent liability, arising at the time of 
the settlement of accounts. I am not pre- 
pared to agree with him. All that the 
Subordinate Judge was required to find 
was whether the story of the plaintiff 
was true or false and he distinctly held 
that the case of the plaintiff was not 
true and the case of the defendant was 
substantially true. That being so, it is 
unnecessary to consider the decisions in 
Sri Ram v. Sobha Ram-Gopalrai (1) and 
Vishnu Ramchandra Joshi v. Ganesh 
Krishna Sathe (2), relied upon by Mr. 
Sesha lyengar. 

The second appeal fails and is dismissed 
with costs, 

V. N. V. 

z. K. Appeal dismissed t 

(1) 67 Ind. Cae 513, 44 A. 521; 20 A, L. J. 315; 4 
U. P. L. R. (A.) 153, (1922) A. I. R. (A.) 2l* 

(2) 63 Incl. Cas. 673, 45 B. 1155; 23 Bom. L. ft, 

488. 



[92 I. 0.-1&26J. t? MAHABIR PHASAD TEWAfct W. JAUUNA SINGH. 



PRIVY COUNCIL. 

APPEAL FROM THE PATNA HIGH COURT. 

July 21, 1925. 

Present: Lord Shaw, Lord Carson, 

Sir John Edge and Mr. Ameer All. 

MAHABIR PRASAD TEWARI 

APPELLANT 

versus 

JAMUNA SINGH AND ANOTHER 
RESPONDENTS. 

EjectmentJus terfcii, plea of, whether can be taken. 

In an action of ejectment the defendant is entitled 
to plead in defence the right - of some one having a 
superior or equal title with, the plaintiff to the pro- 
perty in dispute, but if he fails to prove satisfactorily 
that the parties whom he has put forward are entitled' 
to the property in preference to the plaintiff the 
plaintiff would be entitled to a decree, [p. 33, col. 2 ] 

Appeal from the Patna High Court (Sir 
Da wst>n Miller, 0. J. and Mr, Justice Ross) 



in Appeal No. 54 of 1921, dated 16th March 
1922 and printed as 66 Ind. Gas. 88. 

Mr. E. B. Raikes, for the Appellant. 

Mr. B. Dube, for the Respondents. 
JUDGMENT. 

Ameer All, This appeal arises out of 
a suit brought by the plaintiff Jamuna 
Singh in the Court of one of the Subordi- 
nate Judges at Patna for possession of a 
property called Mouza Bariarpur in that 
District. He claims to have acquired his 
title by purchase from his assignors, de- 
fendants Nos. 11, 12 and 13. 

The property in dispute, though of com- 
paratively small value has already been 
the subject of a series of litigations. 

The following pedigree will give a general 
idea of the various parties whom the plaint- 
iff has impleaded in the case: 



Another wife m, Hira Misir alias Ramcharan m. Dayar Kuar. 



f 



Kishen Sewak 

Nihal 
Earn Sewak 



Lukdeo, Khijju m. Basant Kuan f " 

, I Gopalee Misrain 

Ajani Prasad m. TO Ghinoo Mwir. 



Bid 



ga 

Gopal Missir, defendant 

No. 5, (claimed and was made 

party in escheat suit. 

Assigned to appellant m 

190 1 J.) 



Daughter m Mawnu, 

j 
Hanuman 



Deokinandan and 

2 brothers (defendants 

Nos 2 4, assigned to 

appellant in 1 ( J08 ) 



Daughter, 



I 



Bhugwanti t Daughter m. [ ] 

Ganesh Fande R'-.^'.L- ; } -: i 
(claimed and (survived Monakka 
gave evidence and had a widow 
in escheat alive in 1917. 
suit). Claimed and 

applied to be made 
party in escheat 
suit). 



Daughter m. Raj Dyal 

I 
Manohar. 



Daughter m. Khaderam 



, Khad 



M (other Dhanukdari m Monakka 

Mfe) (died 1872). (died 13th September 

1002). 






Balmukund, 

(defendant 

No. 6.) 



Chatterbhuj, 

(^defendant 

No. 7.) 



( 




Harihar, (predeceased 
t Monakka). 


Jagdco, (alive in 
11)17). 



Rajcndra, 
^defendant 
No, 11.) 
^ 


Ram Sohawan, 
(defendant 
No. 12 ) 


Ram Nirtfkhan, 
(defendant 
No. 13.) 



Assigned to 1st respondent in 1924. 

N. B. The nam of Raghunandan's father doe not appear in the Record He had two wives, one 6f 
was the sister of Dhahukdari and mother of Raghunarulan, tihc other wife b eing the mother of Bal- 
joaukupd and Chatterbhuj (defendants Nos, 6 and 7). 



If AfcABIfc t>KA8AB TEWAfel V, JAMtNA 



[92 L 5. 



The Mouza Bariarpur belonged originally 
to one Dhanukdhari Missir, who died, it is 
alleged, some 50 years ago, leaving him 
surviving a widow named Monakka Kaur. 
As Dhanukdhari left no issue, his widow 
succeeded to the estate and held possession 
until her death in 1902. She appears to 
have created in her lifetime a zur-i-peshgee 
lease in respect of part of the property in 
favour of the 9th defendant. 

The plaintiff alleges that on Monakka's 
deaths there weie no agnatic relations of 
Dhanukdhari. He has, however, as he says, . 
made all persons claiming reversionary 
rights through females parties to the suit. 
His case is that among them his vendors, 
namely, Rajendra, Ram Sohawan and Ram 
Nirekhan, who have assigned to him their 
rights in the property in question, are pre- 
ferentially entitled to the succession of 
Dhanukdhari. 

The 1st defendant, Mahabir Prasad 
Tewari, the present appellant before the 
Board, on the other hand, alleges that 
Monakka before her death made a Will in 
his favour and devised to him the property 
in suit, and that he obtained possession of 
the same, which he has retained until now. 
It appears that he obtained on the 16th 
April, 1903, Probate of the Will shortly after 
the death of Monakka from the Court of 
the District Judge of Patna. It is not 
disputed, however, that the devise by 
Monakka was invalid. 

The first defendant's real case is that at 
tlie time inheritance to Dhanukdhari's 
estate opened, on the death of Monakka, 
the preferential heir to his succession was 
his agnatic relation Gopal Misser. His 
place is shown in the pedigree. Gopal 
Misser is still alive, and the appellant has 
obtained from him an assignment of his 
rights and interests. The appellant has 
also purchased, it appeals, the right and 
interests, if any, of several of the other 
defendants. 

In 1903 a suit was brought by the Sec- 
retary of State for the possession of Mouza 
Bariarpur on the allegation that Dhanuk- 
dhari had died without leaving any heir, 
that Mahabir, the appellant, had no title 
to the property and that it had accordingly 
escheated to the Crown. It is alleged by 
the appellant that this suit was really- 
prompted by defendant No. 9, 

A number of person, almost all of whom 
have been made defendants in this action, 
came forward as claimants in the suit 



of the Secretary of State. The suit was 
finally dismissed by the High Court of 
Calcutta on the 14th May, 1908. 

Soon after its dismissal the appellant 
brought a suit against Adit, the 9th defend- 
ant, for redemption of the usufructuary 
mortgage created by Monakka. The appel- 
lant based his right toredeem on the assign- 
ment to him by Hanuman (whose name 
will be found in the pedigree) of his lights 
and interests in the property, and the first 
Court made a decree in his favour in these 
terms: 

l< In accordance with my decision of the 
other issues I hold that the plaintiff will 
get a declaration that he is the proprietor 
of the disputed Mouza Baniarpur as men- 
tioned in the plaint and tltw, u the defendant 
No. 1 will be declared to b^ s zarpeshgidar 
of the imoiiza, and it will alio bfc declared 
that the plaintiff will get khas possessson 
of the disputed mouza on payment of 
Rs. 200, as stipulated in the 2nd ticca 
paita (dated 1st September 1902)." 

The Subordinate Judge held in effect 
that the assignment by Hanuman, whom he 
considered to have a preferential rever- 
sionary right, entitled the defendant to 
redeem the property from Adit. This view 
appears to have been accepted by the 
High Court, and the decree of the first 
Court was affirmed. On an appeal to this 
Board it was declared that Eajendra and 
his two brothers were preferentially entitl- 
ed. The decrees of the Courts in India 
were reversed and the appellant's suit for 
redemption was dismissed [Adit Narayan 
Singh v. Mahabir Prasad Tiwari (1) ] 

The present suit by the plaintiff was 
brought on the 8th September 1914. It 
was dismissed by the Subordinate Judge 
on the 31st October 1917, on the ground 
that he (the plaintiff) had failed to prove 
that his vendors were preferential rever- 
sioners. In the meantime, as already stated, 
it had been declared by the Board on the 
18th January 1921, that the plaintiff's 
vendors had the preferential right, and the 
High Court has accordingly upheld the 
claim, and made a decree in favour of the 
plaintiff. 

Counsel for the appellant admits that in 
face of the ruling by the Board he could 

(1) 60 Intl. Gas. 251; 48 J. A. 86; 40 M. L. J. 270; 
(1921) M. W. N. 153; 19 A. L. J. 208; 2 P. L. T. 97: 
33 0. L. ' J. 263; 29 M. L. T. 240; 6 P. L. J. 140; 23 
Bom. L, R. 692; 25 C. W. N. 842; 14 L, W, 2Q 
(P.O.). 



1. 0, 1926J 



SADASHEO V. BAPU, 



not impugn the reversionary right of the 
plaintiff's vendors, but he contends that the 
defendant is in posseseion and in order to 
eject him the plaintiff must show that 
there is no other reversionary heir in the 
same degree or neai'er than his assignors 
whose title he (the defendant) can urge 
against the plaintiff's claim for ejectment. 
In other words, the action being one of 
ejectment the defendant is entitled to plead 
in defence the right of some one else equal- 
ly entitled with the plaintiff's vendors. 
Mr. Justice Bucknill of the High Court of 
Patnain his careful judgment has shown 
that the defendant had failed to prove 
satisfactorily that the parties whom he had 
put forward were entitled to the property 
in preference to the plaintiff's vendors. 

The evidence on which the appellant 
relied has beeiVread to their Lordships, and 
Mr. Raikes has put before the Board every 
point in support of his case. Their Lord- 
ships, however, see no reason to differ from 
the High Court. They will humbly advise 
His Majesty that the appeal should be 
dismissed with costs. 

z, K. Appeal dismissed. 

Solicitors for the Appellants : Messrs. 
Watlcins and fJitnter. 

Solicitor for the Respondents ; Mr. W. 
How Daney. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS JUDICIAL CASE No. 46 

OF 1925. 

October 10, 1925. 

Present ; Mr. Fjndlay, Officiating J. C. 
6 ADASH BOAPPELLANT 

versus 
BAPU RESPONDENT. 

Limitation Act (IX of 1908), s J, scope of- - 
Extension of time for appeal Counsels wrung advice, 
effect of. 

A party in whose favour a decree or ordor is passed 
should not be deprived of the a [vantage of his vested 
right in the same unbss there haa been on his part 
83.113 conduct raising an equity against him or there 
has been sonic inevitable accident, [p 31, cols I & 2] 

Dzttatraya Sitaram v. Secretary of State for India, 
GO.Iud Oa9. 714; 45 B 6(K' 23 Bom, L B. 89, Skib 
Dayal v. . *, ; Prasad, 63 Ind. Caa. 812; 41 A. 
63(5; 20 A. JU. J. o7i; (1022) A 1 R (A ) 400 and 
Vaitfayanatha Aiyar v. Govinlts-Mamy Odayar t 62 
Ind.-Ca9. 793; 41 M L. J, 03; 13 L. W. 532; (1921; M. 
W. N. 338, referred to. 

It in not o;ich and ovory mistake of a Counsel 

3 



which per se is to bs considered a sufficient 
ground for giving his client the benefit of s 5 of the 
Limitation Act [p. ,'Ji, col. 2.] 

A mistaken ad vine of a Counsel that an appeal lay 
from an order dismissing an application for the 
amendment oE a decree, causing a bond fide, wrong im- 
pre^sion on the client and a delay in the filing of an 
appeal from another appealable order in execution 
proceeding, cannot furnish a sufficient ground for 
condoning the delay under s. 5 of the Limitation Act. 
[p. 33, col. 2, p 31, col. 2,] 

Appeal against the orders of the Court of 
the Additional District Judge, Nagpur, 
dated the 6th November 1924, and 18th 
December 1924, in Execution Case No, 7 of 
1924. 

Mr. M. B. Kinkhede, E. B,, lor the Appel- 
lant, 

Mr. 7^. N. Padhc, for the Respondent. 

ORDER. The only question with 
which I am at present concerned is whe- 
ther the present appeal which purports to be 
one against orders in Execution Case No. 7 
of ly24 in the Court of the Additional 
District Judge, Nagpur, is barred by limita- 
tion or not. Admittedly, on the face of 
things, the present appeal is barred by 
some 147 days but the appellant's case is 
that he should be given the benefit with 
reference to s. 5 of the Limitation Act of 
the period from 6th January 1925 to 15th 
August 1925 during which he was bona fide 
pursuing a wrong remedy in First Appeal 
No. 3 of 1925. 

The facts of the case are sufficiently 
clear from my judgment in the latter appeal 
and need not be repeated here. Reliance 
en behalf of the appellant has been placed 
on the following decisions : 

Shib Dayal v. Jayannath Prasad (1), 
Vaithyanatha Aiyar v. Govindaswarni 
Odayar (2) and Nagindas Motilal v. Nilaji 
Moraba Naik (3). 

In the first quoted of these cases the 
learned Justices held that an honest mis- 
take on the part of a litigant caused by 
erroneous advice given to him by his Vakil 
m tlie district, by reason of which an appeal 
was not filed until it was barred by limita- 
tion, was a good ground for the application 
of s. 5 of the Indian Limitation Act. la 
that case it \vas laid down that, although 
the primary principle in dealing with this 
matter must be tliat the proposed respond- 
ent to an appaal has a right to hold his 

(U OS lai On 812; 41 A. G3G; 20 A. L. J. 674; 
(19J2) A I tt. (A.) 41)0. 

( 4 > '02 lid. Gas 7:)5; 41 M. L. J. Co; 13 L. W. 523; 
(1D21) M W. N, 333 

(3) 80 lad. Gas. 812; 26 Bom. L. R, 335, 43 B 412: 
(102 i) A, I, K. (B.) 30l>, 



KAfclNGAN I?. fiARIHAfc DBTT. 



judgment and that such right ought not 
to be interfered with after the lapse of the 
prescribed time unless there are special cir- 
cumstances for doing so, yet in each case 
in India the question mu&t be considered 
on its merits. In this particular case the 
deciding factor was that the legal profes- 
sion in the District Court was not in such 
a state of efficiency as to make it expedient 
to resile from the degree of the latitude 
which the Allahabad High Court had hither- 
to allowed to litigants in this matter. In 
the Madras Law Journal case quoted a 
delay due to an error on the part of the 
Vakil in not filing an application with 
regard to the legal representative with a 
shorter period which had recently been 
introduced by an Amending Act, was con- 
doned. The decision in the case of Nagindas 
Motilal v. Nilaji Moraba Na'ik (3) ran on 
similar lines. An analogous decision is to 
be found in Dattatraya Sitaram v. Secretary 
of State for India (4). Special weight has 
also been laid on the decision of their Lord- 
ships of the Privy Council in Brij Indar 
Singh v. KashiRam (5). In that case how- 
ever, the question concerned was one of 
whether the delay due to an application for 
review of judgment should have been con- 
doned or not. 

On behalf of the respondent reliance 
has been placed on a decision of Prideaux, 
A J. C., in Ishwardas v. Bismilla Khan (6) 
Obviously, however, in that case there had 
been gross negligence on the .part of the 
Pleader concerned. In Padamraj Fhulchand 
v. Metsvice Bhashan Kesha Ltd., (7) by 
Prideaux and Kinkhede, A. J. Ca., it waa 
held that where an application for leave to 
appeal to the Privy Council was made 29 
days beyond time and the party concerned 
alleged that he was misled by the advice of 
his Counsel who was not aware of the reduc- 
tion in limitation brought about by Act 
XXVI of 1920, there was no cause for con- 
doning the delay.} 

In a case like the present, therefore, 
the principle from which we must start 
is that the respondent in the present case 
has a vested right in the order of the 
lower Court in his favour which it is now 

(4) 60 Ind, Cas. 744; 45 B. 607; 23 Bom. L. R, 89 

(5) 43 Ind. Cas. 43; 45 C. 94; 33 M. L. J. 486- 22 
M. L. T. 362; 6 L. W. 592; 126 P. W. E. 1917; 15 A 
L, J. 777; 19 Bom. L. R. 866; 3 P. L, W. 313; 26 C. L* 
J. 572; 104 P. R. 1917; (1917) M. W. N. 811; 22 W' 
N. 169; 127 P. L. R 1917; 44 I. A. 218 P. C. 

(6) 72 Ind Cas, 158; (1923) A. I, R. (N.) 133, 
(1) 78 Ind. Gas, 154; (1924) A, I, R, (N.) 279, 



[921.0. 19261 



sought to attack anpl he should not be 
deprived of this advantage unless there has 
been on his part some conduct raising an 
equity against him, or unless there has been 
some inevitable accident. Now it cannot 
be said that the mistake of the appellant 
committed presumably on the advice of his 
Counsel in seeking to attack b way of an 
appeal the order dated 22nd October 1924, 
which ^as in reality an order dismissing 
an application for amendment of a decree, 
was a mistake of such a nature as to amount 
to an inevitable accident. I cannot find 
in the circumstances of the present case 
any such special features as would permit 
of my holding in the appellant's favour in 
this connection. 

In the present instance the execution 
proceedings were stayed while the applica- 
tion for amendment of the decree was under 
consideration. Immediately the execution 
proceedings restored, it was open to the 
appellant to have appealed against the 
orders of 6th November 1924 and 18th 
December 1924. Instead of doing this he 
deliberately chose to pursue the remedy of 
appealing against the order dismissing an 
application for amendment of the decree. 
It is not each and every mistake of a Counsel 
which per se is to be considered a sufficient 
ground for automatically giving his client 
the benefit of p. 5 of Indian Limitation 
Act. The present case does not seem to 
me to be one in which there are any suffi- 
cient grounds for exercising my judicial 
discretion in the way I am asked to by the 
appellant. For the above reasons, therefore, 
I am unable to condone the delay, which 
has occurred in filing the present appeal 
and it is dismissed asthne-barred. Appellant 
must bear respondent's costs. I fix Rs. 30 
as Pleader's fees. 

G, R. D. Appeal dismissed. 



OUDH CHIEF COURT. 

SECOND CIVIL APPEAL No. 319 OF 1924. 

November 9, 1925. 

Present: Mr, Justice Missra. 

KARINGAN DEFENDANT No. 2 

APPELLANT 



HAR1HAR DUTT alias BHOLA 
PLAINTIFF, RAJA RAM DEFENDANT No. 1 

RESPONDENTS. 
V. P. Land fievenue Act ( III of mi\ 9, W ($)- 



r [9 I. ti. 1926] CHET RAM fl. 

Joint holding Partition, suit for, whether maintain- 
able. 

Section 39 (2) of the U. P. Land Revenue. Act doss 
not moan that no division of a tenancy holding held 
by two or more tenants should be effected, it merely 
says that if such a partition has been arrived at and 
the distribution of land has taken place it shall not 
be recorded in the revenue papers until the consent 
of the land-holder has been obtained. The section IH 
no bar to a claim by one of several joint tenants to 
get his share in a cultivatory holding divided by 
means of a partition suit filed in a Civil Court. 

Second appeal against the judgment and 
decree of the District Judge, Gonda, dated 
the 23rd April 1924, confirming that of the 
Sub-Judge, Bahraich, dated the 29th Octo- 
ber 1921. 

Mr. H. K. Ghosh, for the Appellant. 

Mr. Aditya ProsaJ, for the Respondents. 

JUDGMENT. This is a second appeal 
arising out of a suit for partition of a cer- 
tain cultivatory holding in village Jaita- 
pur, District Gonda. The plaintiff and 
defendants Nos. 1 and 2 are co-sharers in the 
said holding each owning one third. Both 
the Courts below have granted to the plaint- 
iff a decree for partition in respect of one- 
third share in the said land. ' 

The only point that has been argued be- 
fore me is a point of law that a cultivatory 
holding could not be partitioned without 
.the consent of the landlord, which has not 
"been obtained in this case. I was referred 
to cl. (2) of s. 39 of the Land Revenue Act 
(III of 1901) which runs as follows : -"No 
division of a holding occupied by two or 
more tenants, and no distribution of the 
rent payable in respect thereof, shall be 
recorded, unless the consent of the land- 
holder and of all the tenants concerned has 
been attested before a Revenue Court or the 
kanungo" 

The argument put forward is precisely 
the same which was put forward before the 
learned District Judge and I fully agree with 
the view taken by him. Section 39, cl. (2) 
does not mean that no division of the hold- 
ing held by two or more tenants should be 
effected, it only says that if such a partition 
has been arrived at and the distribution of 
land has taken place it shall not be recorded 
in the revenue papers until the consent of 
the land-holder has-been obtained. It is 
clear that this provision of law is intended 
for the purpose of protecting the, rights of 
the land-holder. Any partition of a cultiva- 
tory holding should not obviously be binding 
upon the landlord if effected without his con- 
sent. The liability for the payment of rent 



among the tenants cultivating a particular 
holding is a joint one and they are not en- 
titled to convert their joint liability into a 
separate liability without the consent of the 
landlord. This, however, does not mean 
that the tenants cannot partition their hold- 
ing among themselves. As an illustration 
a similar case of a partition among the 
co sharers of a village possessing proprietary 
rights styled as an "imperfect partition" 
might be quoted. The co-sharers an such a 
case partition their joint proprietary hold- 
ing and distribute the land revenue among 
themselves, though their liability for the 
Government revenue still continues to be a 
joint one. I, therefore, am of opinion that 
s. 39, cl. (:?) cannot be construed as a bar to 
the claim of ths plaintiff-respondent to get 
his share in the cultivatory holding divided 
by means of a partition suit filed in a Civil 
Court. It is, however, clear that no such 
partition could be recorded in the revenue 
papers until the landlord had given his con- 
sent to it. 

The appeal fails and is, therefore, dis- 
missed with costs. 

Appeal dismissed. 



LAHORE HIGH COURT. 

SECOND CIVIL APPEAL No. 2112 OF 1923. 

January 8, 1924. 

Present: Mr. Justice Campbell. 
CHET RAM PLAINTIFFAPPELLANT 

versus 

Mus'immat ILA1CHO AND OTHERS 
DBFWND VNTS RESPONDENTS. 

Civil Procedure Code (Act V of 1908), 0. XXII, r. 
It, Suit for possession against several defendants as 
trespassers, dismissal of Appeal, second Death of 
respondent Lzgal representatives not brought on re- 
cordAbatement, extent of. 

Plaintiff sued for possession of certain property on 
ths allegation that the defendants were in possession 
of it as trespassers. The defendants claimed to ba in 
possession of the property as the reyersioners of the 
last male-holder. The suit was dismissed by the 
Trial Court and th3 dismissal was upheld by the 
lower Appellate Court During the pendency of a 
second appaal by the plaintiff in the High Court one 
of the d3f end nits-respondents died and his legal 
representatives were not brought upon the record 
within the prescribed period- 

Held, that inasmuch as the relief sought against 
ths defendants in the plaint was joint and indivisible, 
the appeal must ba held to have abated in toto and 
that it was not open to tho plaintiff to urge that as 
ths defendants claimed to be in possession as the 
reversionary hairs of the last male-holder the appeal 



should be held to liave abated only with regard to 
tlie deceased respondents' share m the estate of the 
last male-holder according to the pedigree- table set 
up by the defendants. 

Second appeal from a decree of the 
District Judge, Hoshiarpur, dated the 4th 
July 1923, reversing that of the Munsif, 
First Class, Kangra, dated the 10th Novem- 
ber 1922. 

Lala Mehar Chand Mahajan, for the Ap- 
pellant. 

Lala Fakir Chand, for the Respondents. 

JUDGMENT. In this case the plaint- 
tin 5 sued for possession of land and houses 
alleged to have been sold tp him by Musam- 
mat Ilaicho and of which he asserted that 
defendants Nos, 2 to 5 were in possession as 
trespassers. These defendants were Gurdas 
subsequently deceased, his son Earn Dev, 
his grandson Dasaundhi Ram and his 
nephew Ram Lai. The suit was dismissed 
and the dismissal was upheld by the leain- 
ed District Judge. The plaintiff came to 
this Court in second appeal joining as 
respondents Musammat Ilaicho, Dasaundhi 
Ram, Ram Dev and Ram Lai. Dasaundhi 
Ram is dead leaving Ram Dev his uncle as 
his legal representative. The appeal, how- 
ever, has already been dismissed against 
Ram Lai by another Judge of this Court. 

A preliminary objection is raised that 
the appeal cannot proceed against Ram 
Dev since the decree in favour of the 
defendants other than Musammat Ilaicho 
was joint and the plaint alleged them to 
be in possession jointly as trespassers. 

The learned Vakil for the plaintiff-appel- 
lant resists this contention stating that the 
finding of the Court below was that these 
defendants were reversionary heirs of Phillo 
the deceased husband of Musammat Ilaicho 
and in possession of the land in suit right- 
fully in that capacity, and that a certain 
pedigree table set forth in the lower Appel- 
late Court's judgment is correct. He argues 
that, according to this pedigree table, the 
shares of each of the defendants can be as- 
certained and separated, and that the appeal 
can proceed against Ram Dev for half the 
land in suit. 

Authority, however, is against this pro 
position. The situation is precisely the 
same as if the appeal had abated against 
Ram Lai and there is a case practically on 
all fours decided recently by a Division 
Bench of this Court It is Civil Appeal 
No. 1776 of 1917 which is printed as 
Sardara v. Allayar (1), In that case the 

W 73 fod CM 601; (1923) A, I. R. (L.) 132, 



t'. NAB AVAN, [92 I. 0. It ?6J 

appeal had abated against one of several 
defendants-respondents and the position 
taken up by the plaintiff-appellant was 
that the defendants were all trespassers 
and were all in occupation of the land in 
suit. The learned Judges refused to listen 
to an argument that, because the defend- 
ants owned other land in well defined an- 
cestral shares, it must be taken that they 
also held this land in accordance with the 
same ancestral shares. That position, they 
remarked, was contradictory to the suit as 
framed and after considering a large num- 
ber of previous decisions of the Chief Court 
and of this Court the learned Judges decid- 
ed that since the relief sought was joint 
and indivisible against allthe defendants 
respondents the inevitable consequence of 
the abatement of the appeal against one of 
them was the complete abatement against 
all. 

The situation is very similar in th6 
present case. The defendants were alleged 
in the plaint to be trespassers and to be in 
possession of the land in suit jointly. To- 
gether with Gurdas his son and his grand- 
son were impleaded as defendants and to 
assert now that the defendants were in 
possession in definite shares according to 
their position in the pedigree table is 
contradictory to the suit as framed, 

For this reason and because no relief is 
claimed against Musammat Ilaicho I dis- 
miss the appeal with costs, 

z. K. Appeal dismissed. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS CIVIL APPEAL No. 34 OP 1924. 

October 31, 19*5. 

Present : Mr, Findlay, Officiating J. 0. 

Musammat AKABAI AND ANOTHER 

APPELLANTS 

versus 
NARAYAN RESPONDENT. 

Guardians and Wards Act (VIII of 1890), 8*. 5, 47 
Civil Procedure Code (Act V of 1908}, 0. XLI11, r, 
1 (d) Exparte order under s t SoApplication to 
cancel order, refusal of Appeal against refusal order, 
maintainability of. 

The appellant was ordered under e. 25, Guaidiana 
and Wards Act, to produce a minor child in Court 
with a view to its being restored to the Custody of its 
guardian. The older was passed ex parte t the appel- 
lant being absent. On the next date of the hearing of 
the case, the minor was not produced, but the Court 
was asked to cancel its previous order. The Court 
refused to do so, and the appellant appealed against 
this later order; 

Held, that no attempt having been made to set tisid 



[92 I. 0. 19.GJ PORT CANNING AND LAND IMPROVEMENT CO. V. HEIRS OP BAHIR MOLLA. 37 

the previous order as an ex pa He order, no appeal lay 
from the later order as it was in reality a consequential 
order following on the earlier order. 

Appeal against an order of the District 
Judge, Nagpur, dated the 15th August 1925, 
in Miscellaneous Judicial Case No, 16 of 
1925. 

Mr. B, V. Pradhan, for the Appellants. 

Mr, G. R. Deo, for the Respondent. 



JUDGMENT. This is an appeal 
against an order passed by the District 
Judge, Nagpur, on the 15th August 1925, 
in Miscellaneous Judicial Case No. 16 of 
1925. The present appellants were on the 
23rd July ordered to produce the minor 
child Tara aged seven years in Court with a 
view to her being restored to the custody 
of her father. That order was passed ex 
parte, the present appellants being absent. 
On the 15th August 1925, the next date of 
hearing, the minor was not produced, but 
the District Judge was asked to cancel his 
order of the 23rd July 1925. This the Dis- 
trict Judge refused to do, particulaily in 
view of the present appellants' contumacy in 
not having obeyed the previous order for the 
production of the minor child in Court. It 
was only apparently as a consequence of an 
order of this Court dated the 7th Septem- 
ber 1925, that the child was produced at a 
later hearing of the ca^e, tur., on the 19fch 
September 1925, in the Court of the District 
Judge. 

What is now urged is that the minor 
should not fee handed over in the custody 
of her father until the objections of the 
present appellants to this course have been 
considered and adjudicated upon, It seems 
to me that the appellants have mistaken 
their remedy in this connection. The order 
of the 23rd July 1925 was an order passed 
ex parte. It was open to the appellants to 
have applied for setting aside that order 
and that they did not do. The District 
Judge's order of the 15th August liteS was 
in reality a consequential order following 
on the earlier order of the 2'jrd July 1925, 
and I do not think that, in the circum- 
stances, any appeal lies, against the order of 
the later date mentioned. Even if I could 
regard the present appeal as an applica- 
tion for revision of the older of the 23rd 
July 1925, a couise which would involve 
much straining of the actual legal posi- 
tion, I should not have been prepared to 
interfere in view of the fact that there was 
obvious contumacy and direct disobedi- 
ence of the order of the District Judge for 



the production of the minor. It may of 
course be that the District Judge may still 
be prepared to consider any* objections 
which may be urged to the handing over 
of the castody of the minor pendente lite to 
her father (respDndent). That is a matter 
v\ithin his discretion, but so far as the 
present appeal is concerned it seems to me 
that it is bound to fail and it is dismissed 
accordingly. Appellant must bear respond- 
ent's costs. Pleader's fees Rs. 20. 

N. ii. Appeal dismissed. 



CALCUTTA HIGH COURT. 

APPEAL FROM APPELLATE DECRKH No. 900 

OF 1923. 

May 21), 1925. 

Present: Justice Sir Hwarfc Greaves, KT., 

and Mr. Justice Mukerji. 

THE FORT CANNING AND LAND 

IMPROVEMENT COMPANY, LIMITED - 

PLAINTIFFS APPELLANT 

versus 

HEIRS OF I.ATK BAHIR MOLLA AND 
oTHiiiis DEFENDANTS -RESPONDENTS. 

Benrjal Tenancy Act (VIII of 188 >), s.^ t Sch t IIJ t 
Art J lb) Limitation Act (IX of W0ti\ s 7$ -Pro* 
c?e,din\js under s ^J, nature of "Agreement" in s !+Q 
(7), meaninj of- Suit to recover icnt accruing due 
during pendency of proceedings Limitation 

Proceedings under s 46 of the Bengal Tenancy Act 
are proceedings not merely for ejectment, but to have 
a fair and equitable rent assessed by the Court. If 
the tenant refuses to accept the agreement filed under 
the provisions of the section, it is then that a suit 
for ejectment under the section can be commenced* 
[p. 38, col 2.] 

The word "agreement' 1 in sub-s. (1) of s. 46 of the 
Bengal Tenancy Act refers not to the agreement 
mentioned in the previous sub-sections but to the 
agreement an ived at between the landlord and the 
tenant when the Court has fixed the fair and equitable 
rent and the tenant has elected to pay that rent and 
not to be ejected from the holding (p. 39, col L] 

The rent accruing due during the pendency of 
proceedings under s. 46 of the .Bengal Tenancy Act 
is not suspended by virtue of the proceedings, and a 
suit after the termination of such proceedings to 
recove" such rent is governed by Art 2 (b) of fcJch. Ill 
to the Bengal Tenancy Act and the period of limita- 
tion provided in that Article is not extended by the 
operation of s, 14 of the Limitation Act. [p. 39, col 
2] 

Appeal against a decree of the District 
Judge, 24-ParffaniiH.x dated the27th Novem- 
ber 1922 affirming that of the Subordinate 
Judge, Third Court of that District, dated 
the 2(5 th January 1921. 

Mr. Rom Chandra Mazumdar, Babus 
Khetra Mohan Chore and Rama Prosad 
Mvklierjee, for the Appellants. 

Babu Sisir Kumar Ghosal, for the Re- 
spondents, 



3-4 PORT CANNING AKD LAND IMPROVEMENT 00. V. BBIRS OP BAH1R MOLLA, [92 1. 0. 1926j 



JUDGMENT. 

Greaves, J. This is an appeal by the 
plaintiffs ngainst a decision of the learned 
District Jud^e of 24-Pargannas, affirming a 
decision of the Subordinate Judge of the 
Third Court of Alipur. The suit out of 
which this appeal arises was brought by the 
Port Canning and Land Improvement Com- 
pany, Ltd., as landlords to recover from the 
defendants who were non-occupancy raiyats 
rent for a period of seven years from 1320 to 
1326. 

There is no dispute with regard to the 
years 1323 to 1326 inclusive. But the dis- 
pute between the parties is as to whether 
or not the rent for the years 1320, 1321 and 
1322 is barred by limitation. The appellants 
contend that their claim for these three 
years is not barred and they say that this 
is so because during these years they were 
prosecuting a claim under the provisions of 
s. 46 of the Bengal Tenancy Act. These 
proceedings were commenced on the 28th 
of March 1913, Now, the suit under s. 46 
was dismissed by the first Court, and by 
the lower Appellate Court. But on appeal 
to this Court the claim for enhancement was 
allowed on the 24th of June 1919, this Court 
holding in second appeal that the appel- 
ants were entitled to have a fair and equit- 
able rent fixed by the Court. The matter 
was sent back to the first Court for the 
fixing of a fair and equitable rent and 
when this was fixed there was an appeal 
against the first Court's decision arid the 
fair and the equitable rent was not finally 
fixed until some time in the year 1923. The 
present suit was commenced on the 14th 
April 1920, rent being claimed at the old 
rate as, for the reasons which I have stated, 
the fair and equitable rent directed to be 
fixed by this Court on ithe 24th June 19 j 9 
had not at that time been determined. But 
the appellants say that it was necessary for 
them to commence their suit claiming rent 
at the old rate, as they did, because if they 
had left the matter to run any further, in their 
view the land was not sufficient in value 
to realize the decree for rent which they 
ultimately would obtain. It thus appears 
that the appellants support their claim for 
the rent for the three years 1320, 1321 and 
1322 on the ground that, they say, their 
claim for the rent must be deemed to have 
been in suspense from March 1913 until 
June 1919 when the s. 46 case was in pro- 
gress and they say they could not really 
brought their suit during these years 



as rent was not fixed and finally determined. 

The defendants on the other hand con- 
tend that by virtue of the provisions of 
Art 2 (fe) of the Third Schedule to the 
Bengal Tenancy Act the rent for these 
three years is not now recoverable. 

Article 2 (b) provides that the period 
of limitation for the recovery of an arrear 
of rent in other "cases not provided by the 
previous sub-section is three years from the 
last day of the agricultural year in which 
the arrear fell dive. The respondents fur- 
ther contend that proceedings under s, 46 
are merely proceedings for ejectment and it 
has been held in various cases of this 
Court that during the pendency of a suit for 
ejectment the claim for rent is not in abey- 
ance by reason of the suit. Now, in my 
view it is not right to say that the pro- 
ceedings under s. 46 are merely proceed- 
ings for ejectment for I think they are 
proceedings not merely for ejectment but to 
have a fair and equitable rent assessed by 
the Court. If the tenant has refused to 
accept the agreement filed under the pro- 
visions of s. 46 it is then alone that a suit 
for ejectment under that section can be 
commenced. There is nothing, therefore, I 
think, in this point. 

But the real difficulty appears to be 
whether there are any provisions of the 
Limitation Act which provide for the 
suspension of the rent during the pendency 
of the s. 46 proceedings unless there is to 
be found some such provision in the 
Limitaiion Act then the provisions of 
Art. 2 (6) of Sch. Ill of the Bengal Tenancy 
Act must operate. Now, it seems to me 
that the only section of the Limitation 
Act which could be applicable is s. 14 
of that Act which pr-ovides that in comput- 
ing the period of limitation prescribed for 
any suit the time during which the plaint- 
iff has been prosecuting with due diligence 
another civil proceedings whether in a 
Court of first instance or in a Court of 
Appeal against the defendant, shall be 
excluded where the proceeding is founded 
upon the same cause of action and is 
prosecuted in good faith in a Court which 
from defectof jurisdiction or other cause of a 
like nature is unable to entertain it. Now, the 
real question, therefore, is whether the pro- 
ceedings under s. 46 of the Bengal Tenancy 
Act can be treated as proceedings founded 
upon the same cause of action as the claim 
in this suit. This really depends, I think, 
upon the cpnstructipn to be put on the 



[92 I. 0. 1926] PORT CANNIN0 AND LAND IMPROVEMENT 00. V. HEIRS OP BAHIB MOLLA. 

word "agreement" in sub-s. (7) of s. 46 of 
the Bengal Tenancy Act Section 46, sub s. (1) 
provides that no suit for ejectment shall 
be instituted- against a non-occupancy 
raiyat unless the landlord has tendered 
an agreement to pay an enhanced rent 
and the tenant within three months be- 
fore the institution of the suit has refused 
to execute it. 8ub-s. (2) provides that a 
landlord tendering an agreement may file 
it in the office of the Court for service on 
the raiyat and that it shall be served 
forthwith and that such service shall be 
deemed to be a tender. The "agreement" 
referred to in sub-ss. (1) and (2) of course 
is not strictly an agreement as has 
been pointed out by this Court in the 
case of the Pert Canning and La?id 
Improvement Company, Ltd. v. Nay an 
Chandra Paramanik (1). But it really is 
an offer made to the tenant which the 
tenant can refuse or reject as he likes. 
Then sub-s. (3) provides that if a raiyat on 
whom an agreement has been served executes 
it and within one month from the date of 
the service files it in the office from which 
it issued it shall take effect from the com- 
mencement of the j :. r :i- ,l; i .:n; year next 
follow in IT. Sub-section (4; refers to the same 
agreement and piovides for notice to the 
landlord in the event of the agreement hav- 
ing been executed by the raiyat. Sub-section 
(5) again refers to the same agreement and 
provides that if the raiyat does not execute 
and file the agreement under sub-s. (3) the 
tenant shall be deemed to have refused to 
execute it. Sub-section (6) again refers to the 
same agreement and provides that if the 
raiyat refuses to execute the agreement the 
Court has to determine a fair and equit- 
able rent for the holding. Then we come 
to sub-s. (7) which provides that if the raiyat 
agrees to pay the rent determined by the 
Court under sub-s (6) he is to be entitled to 
remain in occupation of this holding at 
the rent fixed by the Court for a term of five 
years from the date of the agreement. 
Does the word "agreement" in sub-s. (7) re- 
fer to the same agreement which is men- 
tioned in the firat six sub-sections, or is it 
something else? It is suggested that the 
agreement mentioned in sub-s. (7) is the 



agreement arrived at between the parties 
when Court has fixed a fair and equitable 
rent and the raiyat has agreed to pay the 
same. The conclusion that I have come to 
(1) 45 Ind. Cas. 234; 22 C. W. N. 558; 28 C. L. J. 

ST. 



is this that upon a true construction of sub- 
s. (7) that isthe meaning of the word ^agree- 
ment" in that section ; and I have arrived 
at this conclusion for two reasons. First 
of all, because it seems very strange that 
if the agreement referred to in sub-s. (3) is 
the same agreement as is referred to in 
sub. s. (7) the agreement in one case is to 
take effect from the commencement of the 
agricultural year next following and in 
the other case from the date of the agree- 
ment itself. It is certainly somewhat curi- 
ous that there should be this difference in 
time from which the agreement is to take 
effect if the agreement referred to in sub- 
s. (7) is the same agreement as is mentioned 
in sub s. 3. The second ground is this sub- 
section (7) provides that if a raiyat agrees to 
pay the enhanced rent fixed by the Court 
he is entitled to remain in occupation for a 
term of five years from the date of the agree- 
ment. If the agreement there is to be 
construed as the agreement filed by the 
landlord under the provisions of sub-s. (2) 
one might arrive at this extraordinary re- 
sult that a tenant would get no period of 
term at all if the proceedings under s. 46 
had been sufficiently protracted. In any 
case it seems to me that he would never get 
the full term of five years mentioned in the 
sub section because in this reading of the 
''agreement" the time occupied in s. 46 pro- 
ceedings would have to be deducted from 
the period of five years mentioned in sub-s. 
(7). For these reasons I think upon the true 
construction of sub s. (7) the word "agree- 
ment" therein is not the agreement men- 
tioned in the previous sub-sections but the 
agreement arrived at between the landlord 
and the tenant when the Court has fixed 
the fair and equitable rent and the tenant 
has elected to pay that rent^and not to be 
ejected from the holding. 

In this view, therefore, in my opinion the 
limitation is not saved by virtue of the 
provisions of s. 14 of the Limitation Act, as 
it cannot be said that s. 46 proceedings are 
founded upon the same cause of action as 
the proceedings in the present suit. 1 do 
not see any other section of the Limitation 
Act under which the limitation can be saved. 

We have been lef erred to various cases. 
The learned Judge in the Court below- has 
relied on the case of Watson & Co. v. Dho- 
nendra Chandra Mukerji (2). But 1 do not 
think that that case is really decisive of tho 
question that arises in this suit. A reference 

(2) 3 0. 6; 2 lad. Jur. 209; 1 Ind. Deo. (N. s.) 596. 



40 



PANDU&ANG G6VIND FATE V. MA1FUZBHAI. 



[92 I. 0. 



to the judgment at page 12* makes it clear 
that the reason of that decision was that 
the claim in that suit was barred by limi- 
tation on the ground that according to the 
decision of the Court the defendants still 
continued to be tenants of the zemindar 
tinder their patni lease even though the 
zemindar had denied the existence of this 
lease. Therefore it could not be contended 
that the claim for rent was in suspense 
during the pendency of the litigation with 
regard to the lease. The case that seems 
more nearly applicable to the facts of the 
present case is the decision in Ham Chvnder 
Choudhury v. Kali Prosan'no Bhaduri (3). 
Then there had been a suit for enhance- 
ment of rent and the Judicial Committee 
held that the fact that a suit for enhance- 
ment of rent had been brought by the 
plaintiff within the period covered by the 
rent suit and in the enhancement suit the 
plaintiff had claimed enhanced rent for the 
years covered by the rent suit stayed the 
operation of the Law of Limitation. Their 
Lordships say at page lit that the appel- 
lants claimed the arrears of 1298 in that 
enhancement proceedings but this claim 
was then disallowed as premature, that they 
are not now entitled to the benefit of the 
decree for enhancement and to recover the 
arrears of the enhanced rate. It, therefore, 
appears that in that case the claim in the 
rent suit was expressly and exactly covered 
by the claim in the enhancement suit 
which for the reasons! have indicated is 
not the case here. 

One cannot help sympathising with the 
position of the landlord in the present case. 
But in the circumstances it is cleaily im- 
possible for them to claim rent at the old 
rate during the pendency of the enhance- 
ment proceeding. The result may, therefore, 
be that in this state of circumstances the 
landlord cannot recover the full benefit of 
the decree for enhancement which he ob- 
tained in proceedings under s. 46 of the 
Bengal Tenancy Act But that is a ques- 
tion for the Legislature and not for us. We 
can administer the law as we find them 
and as we understand them. 

In the result the appeal fails arid is dis- 
missed with costs 

Mukerjl, J.-- 1 agree. 



Z. K. 



Appeal dismissed. 



(3) 8 W. N. I; 30 L A. 177; 30 C 10,3.?; 8 Kar 

P. C. J 529 (P G ). ' 

*Pace oH r. - I Ed ] ~ 

tPageof SaW.N. [Ed.] 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

CIVIL BBVISION No. 379 OF 1924. 

July 13, 1925. 

Present; Mr. Find lay, Officiating J. C. 

PANDURANG GOVIND FATE 

DECREE HOLDERAPPLICANT 

versus 
MAIFUZBHAI OBJECTOR -Notf- APPLICANT. 

Civil Procedure Code (Act V of 1908), s. 115, 0. 
XXI, r 58 Erroneous view of law Objection pro- 
ceedings, order in Revision. 

If a Court, upon nn erroneous view of the pcope of 
a section of the C. P. C , applies it to a case to which 
it has no application, the Court acts without jurisdic- 
tion and the High Court would inteifere with its 
decision ii\ ie,visioii. [p. 42, col 1 "| 

Shiva Nathajiv Jorna Kashinatk, 1 B. 311, 7 Jnd 
Jur 656, 4 Ind. Dec. (N. s ) 229, followed 

The mere fact that the unsuccessful party in objec- 
tion proceedings under O. XXI, r 58 of the P. C. 
has to file a separate suit under r. 63 of the Order and 
the onus of pi oof will be on him, does not afford 
sufficient giound as to why the HJi^Ji Couit should 
revise the ordei in those proceedings fp. 42, col 2.] 

Application for revision against an order 
of the Second Class Subordinate Judge, 
Nagpur, dated the 17th October 1924, in 
Execution Case No. 119 of 1922. 

Mr. M. R. Bobde, for the Applicant. 

Mr. A. V. Wazalwar, for the Non- Appli- 
cant. 

ORDER. The applicant (decree- holder) 
Pandurang Govind Fate has applied in 
revision against an order in execution 
of the Subordinate Judge, Second Class, 
Nagpur, under which certain moveable 
property, which had been attached, was 
released on an objection filed under 0. XXI, 
r. 58, (\ P. C M by -the non-applicant Mai- 
fuzbhai. The latter filed an objection to 
the attachment on the ground that the 
property in question was already in his 
possession in the capacity of a supratdar 
under a decree passed in Civil Suit 
No. 27 of 1922, in which the decree-holder 
was also the same as the present applicant. 
The grounds of the application are firstly, 
that the objector, on his own allegations, 
had no locus standi under 0. XXI, r. 58, to 
maintain the objection, and that the lower 
Court acted illegally and without jurisdic- 
tion in having released the property from 
attachment It is secondly urged t'hat, in 
any event, the lower Court failed to take 
notice of the fact that the present deciee- 
holder pleaded that the property attached 
in the present proceedings was not the 
same as that attached in Suit No. 27 of 
1922, and that the order releasing the pro- 
perty was, in any event, premature, as the 



[921,0. 1926J 

lower Court failed to give an opportunity to 
the present applicant to produce evidence on 
the above question of fact. 

On the application for revision coming 
on for healing, the Pleader for the non- 
applicant raised an objection that a remedy 
by way of revision did not lie in the cir- 
cumstances of the present case and it will 
be accordingly convenient, first of all, to 
deal with this point. On behalf of the 
non-applicant it has been pointed out that 
O. XXI, r. 63, provided a special remedy by 
way of suit for any party ..j." : : by an 
order passed under r. GO or r. 61 of 0. XXI, 
C. P. C, Reliance has been placed in this 
connection upon the decisions, amongst 
others, in Gopal Das v. A Id f Khan (1), J. J. 
Guise v. Jaisraj (2) and Shiva Nathaji v. 
Joma Kashwaih (3). The decision in J. J. 
Guise v. Jaisraj (2) is directly to the point. 
Burkitt, J, remarked at page 407* thereof 
as follows 

" The learned Counsel for the applicants 
admits that they have open to them a 
remedy by way of suit in which they can 
question the decision of the Subordinate 
Judge so far as it is injurious to them. Ad- 
mittedly they have not availed themselves 
of that remedy, and, therefore, adopting 
and acting on the precedents above cited, I 
think that this Court should not grant to 
them the extraordinary remedy by way of 
revision for which they have applied. For 
this reason, J think this application should 
be rejected," 

In Debi Das v. Ejaz Ilusain (4), Knox, 
J., referred to J. J. Guise, v. Jaisra] (2) 
just quoted and remarked as follows: 

" What was laid down in that case was 
that this Court should not grant the extra- 
ordinary remedy by way of revision when a 
remedy by way of suit lies open. Ordinari- 
ly, I am prepared to subscribe to that, but 
in this matter each case must be judged 
upon the circumstances peculiar to it The 
subject-matter is valued at Rs. 40. The 
decree-holder is purporting to act under a 
decree which he obtained on 17th Novem- 
ber 1902. The application for execution, 
which has in noway been traversed, shows 
that his path in execution has been a very 
thorny one. I hnve held that the order 

(1) 11 A. 383; A. W, N, (1889) 151; 6 Ind, Dec. 
(N. s.) G72. 

(2) 15 A 405; A. W. N (1803) 172; 7 Ind. Deo. (NT. a ) 
979. 

(3) 7 B. 341, 7 Ind Jur. 656, 4 Ind, Dec. (N. s) 229. 
"(4) 28 A. 72; A. W N (1905) 191; 2 A L J. 749. 

""Pageof 15 A, [Ed.\ 



PANDUflANQ COVIND FATE V. MAIFUZBHAI. 



41 



complained of was an order entirely without 
jurisdiction, and, therefore, it appears to 
me most consonant with equity to place 
the parties as far as possible in the posi- 
tion they occupied before the judgment- 
debtor moved the Court to pass the order 
which it had no jurisdiction to pass. 1 ' 

Knox, J., thus in the case in question 
was not prepared to lay down an absolute 
rule that when an express remedy by way 
of suit or otherwise was provided for, no 
application for revision could, in any event, 
lie, and he held that in such a matter each 
case must be judged upon the circum- 
stances peculiar to it, 

The question of the exercise of the ex- 
traordinary jurisdiction of the High Court 
under s. 662 of the old C P. C. was con- 
sidered most elaborately in Shiva Nathaji 
v. Joma A'rt.s/n'wa/ft (3) by a Full Bench 
and the f'-ll.^ ii-ir principle was, amongst 
others, laid down at page 372* thereof: 

" Where a decree or order of a Subordi- 
nate Court is declared by the law to be, for 
its o\\n purposes, final, or conclusive, 
though in its nature provisional, as subject 
to displacement by the decree in another 
more formal suit, the Court will have re- 
gard to the intention of the Legislature 
that promptness and certainty should, in 
such cases, be in some measure accepted 
instead of juridical perfection. It will rec- 
tify the proceedings cf the inferior Ccurt 
wheie the extiinsic conditions of its legal 
activity have plainly been infringed; but 
wheie the alleged, or apparent, error con- 
sists in a misappreciation of evidence, or 
misconstruction of the law, intrinsic to the 
inquiry and decision, it will respect the 
intended finality, and will intervene per- 
emptorily only when it is manifest that, 
by the ordinary and prescribed method, an 
adequate remedy, or the intended remedy, 
cannot be had." 

On behalf of the applicant reliance has 
been placed on the remarks of Hallifax, 
A J. C , in Kamchandra Fate v. Shridhar 
(5). The learned Additional Judicial Com- 
missioner therein held that, even though 
a remedy .by regular suit was open to 
the applicant in that case, yet he was 
prepared to interfere on the ground 
that the slower remedy by regular suit 
would leave the applicant sufferinginjustice 
and undue hardship, and that this ground 



(5) 05 Ind Gas. 3 
^ I R (NJ_H5._ 



331; 18 N. L. R. 71 at p. 72; (1922 



PAL SINGH V. GANOA SINGH. 



alone was sufficient to call for the exercise 
of the revisional powers of the Court in 
his favour. Each case of this sort must, 
however, be judged on its merits, and I am 
not prepared to admit that ttie present ap- 
plicant is likely to suffer exceptional hard- 
ship or injustice, even though it were to 
be held that the present application by way 
of revision did not lie. It is unnecessary, 
therefore, to discuss in the present case the 
question as to whether I should bo prepar- 
ed to accept fully the standard laid down 
by the learned Additional Judicial Com- 
missioner in the case quoted in this con- 
nection. 

I turn next to the principle enunciat- 
ed in the Shiva Nathaji v. Joma Kashinath 
(3) quoted above, a decision which has been 
followed in many other later cases, and is 
quoted, with approval, in Brajabala Devi v. 
Gurudas Mundle (6). It becomes, therefore, 
necessary to consider whether the lower 
Court was correct or not in holding that r. 
58 of O. XXI, 0. P. C., covered the case of 
the present objector. If a Court, upon an 
erroneous view of the scope of a section of 
the C. P. C., applies it to a case to which 
it has no application, such a Court would 
act without jurisdiction, and, .- :': : :,he 
principle laid down in Shi ; \ , ^ , v, 
Joma Kashinath (3) quoted above, this 
Court would, in the circumstances, be pre- 
pared to interfere. Now the applicant's 
position in this connection is that the 
objector as a mere supratdar had no locus 
standi with regard to the objection he filed 
to the attachment. It is suggested in this 
connection that he was in possession only 
on behalf of the judgment-debtor. Were 
this so, the Court would undoubtedly have 
acted without jurisdiction. I am, however, 
not prepared to assent to this proposition. 
The supratdar was, to all intents and pur- 
poses, in possession of the property on 
behalf of the Court and practically held the 
position of a Receiver. Therefore, in the 
present case I do not think that any applica- 
tion for revision can lie, and I fully accept 
the above quoted principle. 

The other grounds for interference, 
viz., that the lower Court erred materially 
in not taking further evidence and investi- 
gating the question as to whether the 
property in each attachment was the same, 
do not seem to me to be such as would 
justify interference on the revisional side 

(6) 33 0. 487; 3 C. L. J. 293. 



[92 1. 0. 1926] 

in this Court. Rightly or wrongly, the 
Judge of the lower Court, on the evidence 
before him, has held that the property was 
the same. The mere fact that if the applic- 
ant has to file a separate suit under 0. XXI, 
r. 63, C. P. C., in this connection and that 
the onus of proof will be on him in this 
connection, seems to me to afford no suffi- 
cient ground as to why this Court should 
exercise its revisional jurisdiction in such a 
matter. If such a consideration were to 
afford the guiding principle in the question 
as to whether an application of this sort 
lies under s. 115, r. 63 of 0. XXI, might as 
well not be on the Statute book at all, be- 
cause parties aggrieved by an order passed 
under r. 60 or r. 61 of O. XXI would very 
naturally choose the cheaper and more 
speedy remedy of revision. 

Holding, as I do, therefore, that the 
lower Court did not act without jurisdic- 
tion, I do not think the present application 
for revision can be entertained on the other 
allegations made therein. The applicant 
must seek his remedy by way of separate 
suit in the way provided for in the C P. C. 
The application for revision is accordingly 
dismissed. The applicant must bear the 
non-applicant's costs. Pleader's fees Rs. 15. 

N. H. Application dismissed. 



LAHORE HIGH COURT. 

SECOND CIVIL APPEAL No. 2268 OP 1924. 

March 21, 1925. 

Present: Mr. Justice Abdul Raoof. 
PAL SINGH PLAINTIFF APPELLANT 

versus 
GANGA SINGH AND ANOTHER 

DEFENDANTS RESPONDENTS. 
Appeal, second Mortgage or sale Question of fact. 
The question whether a certain transaction is a 
mortgage or a sale is a question of fact and cannot 
be agitated in second appeal. 

Hecond appeal from a decree of the Dis- 
trict Judge, Amritsar, dated the 13th 
August 1924. 

Bakhshi Tek Chand, for the Appellant. 
Lala Kidar Nath Chopra, for the Re- 
spondent. 

JUDGMENT. This is a second appeal 
in a suit for pre-emption. The following 
facts will disclose the nature of the question 
to be decided: 

Musammat Ram Kaur, widow oV 



[92 1. 0. 1S26J 

Jawand Singh, inherited some land from 
her husband as a life-tenant. She applied 
to the Collector to sell 49 kanals, 6 marlas 
for Rs, 2,000, to one Dharam Chand, a non- 
agriculturist, The application was rejected 
on the 8th of February 1921. Thereupon by 
a deed dated the llth ol June 1921, she 
made a mortgage without possession in 
favour o Ganga Singh in respect of 39 
kanals, 11 marlas for Rs. 1,100. The follow- 
ing conditions were entered in the deed: 

(1) The mortgage was not to be redeemed 
for 20 years, and 

(2) interest was to be paid at Rs. 2 per 
cent, per mensem. On the same date the 
mortgaged land was leased to the mortgagee 
for 20 years, the rent reserved being Rs. 40 
per annum. The land revenue Rs. 12-0-9 
was to be paid out of this yearly rent. 

The plaintiff Pal Singh, a reversioner of 
Jawand Singh, sued for pre-emption on 
the allegation that, though the deed of the 
llth of June 1921, on the face of it pur- 
ported to be a mortgage- deed, the transac- 
tion was really a sale and that the form of 
the mortgage was adopted in order to 
defeat the right of pre-emption. A declara- 
tion was also claimed by the plaintiff to 
the effect that the alienation being without 
consideration and necessity shall not affect 
his reversionary lights. This latter relief 
was refused and no question as to it 
arises now. The claim for pre-emption was 
decreed by the Trial Court which was of 
opinion that the transaction was really a 
sale On appeal the learned District Judge 
took a different view on the evidence and 
having found that the transaction really 
was one of a mortgage and not that of a 
sale dismissed the claim of the plaintiff. 

This second appeal was preferred by the 
plaintiff and has been argued before me by 
Mr Tek Chand, his learned Counsel. The 
chief contention put forward before me is 
that the conditions entered in the mortgage 
deed are such and the amount of the mort- 
gace money would be so much at the end 
of 20 years that no reasonable person would 
think of redeeming the property. His con- 
tention is that, according to the condition 
relating to interest, the accumulated amount 
at the end of 20 years would come to 
Rs 5 280. Thus along with the principal 
amount of Rs. 1,100 the total sum payable 
by the mortgagor for the redemption of the 
property would come to Rs. MbU. i&e 
learned Counsel further contends that the 
fact that a patta was giren to the mortgagee 



PAL SINGH V. OANGA SINGH, *3 

for 20 years clearly shows that it was in- 
tended to place the alienee in possession 
from the very beginning as a vendee. The 
total amount of rent for 20 years at the rate 
of Rs. 40 per annum \\ould be Rs. 800. Out 
of this Rs. 240-15-0 would have to be de- 
ducted on account of revenue for 20 years. 
Thus the net total rent for 20 jears would 
be Rs. 559-LO. If this amount is deducted 
from Rs. 6,380 the balance left is 
Rs. 5,820-15-0. It is further argued that, ac- 
cording to the evidence on the record, the 
highest market value of the land at the 
date of the transaction was Rs. 50 a kanal. 
Thus the price of 39fcarm/s, 11 marlas or 
putting it roughly as 40 kanals would be 
Rs. 50 x Rs. 40 equal to Rs. 2,000. It is con- 
tended by the learned Counsel that no one 
would think of redeeming the land of the 
value of Rs. 2,000 by paying Rs. 5,820-15-0. 
The argument is plausible and had it been 
possible for me to interfere with a finding 
of fact recorded by the lower Appellate 
Court I might have agreed with the learned 
Counsel as to the effect of the evidence but 
the learned District Judge has found in 
unmistakable terms that the intention of 
the parties was to effect a mortgage. This 
is purely a question of fact and the finding 
of the learned District Judge is conclusive 
in second appeal. There are numerous 
rulings to be found reported in the various 
volumes of the Punjab Record in which it 
is laid down that the question whether a 
certain transaction is a mortgage or sale is 
a question of fact, see for instance Sunder 
Das v. Dhanpat Rai (1), Ahmad Khan v. 
Alam Khan (2) and Kapur Chand v. 
Chet Ram (3). Moreover, having regard 
to the fact that the deed on the face of it 
is a mortgage-deed, the mortgagor can 
redeem the mortgage if he likes and as 
long as there is a right of redemption it is 
impossible to say that a sale has, taken 
place and the mortgagor cannot recover 
possession of the land on payment of the 
redemption money. It is not a question of 
the construction of a document which may 
be treated as a question of law. The ques- 
tion of intention is purely a question of 
fact, and I am constrained to hold that the 
findings of the lower Appellate Court are 



P. R. 1907; 104 P. L. R. 1908, 127 P. W. R 
297; 120 P. L. R 1916; 115 P. W 



(i) 

1007. 

(2) 37 Ind. Cas 
R. 1916. 

(3) 80 Ind. Cas. 494; (1924) A. I. R (L,) 260, 5 L. 
J. 541. 



44 



'TIKARAM V. NAIUYAN. 



binding on this Court,, and there is 
room for interference in second appeal. 

The result is that the appeal fails and 
dismissed with costs. 

Appeal dismissed, 



no 



is 



K. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

SECOND CIVIL APPEAL No. 421 OF 1924. 

September 14, 1925. 

Preserz/; Mr. Pindlay, Officiating J. 0. 
TIKARAM 



versus 
NARAYAN AMD ANOTHER RESPONDENTS. 

Cunl Procedure Co</e \Art V of /M,S), tfr/i ill, 
para II- Decree transferred in Collector for ercdtttmi 
Collector, jurisdiction of -( 1 irtl Coutt, ponn /* of 
Execution, of decree Property miadescrii'i'd tn tratrant 
of attachment Auction-sale, lalidity of - -Knowledge 
of parties. 

No sooner is an order for tmnsfrr of a dence for 
execution to the Collector mnde ihin ho is &eiz<-d of 
the cas^ and not on the date buck oider reaches him. 
Any transfer of the attached property subsequent to 
the date of the order of transfer dining the pmdoncy 
of the proceedings before him is void, [p 43, ools. I 

&2 i 
During the period the Collector lias jurisdiction 

the Civil Court eeases to have any power to aet in 
execution of the decree transferred [p 45, rol 1 j 

A msre misdescription in a warrant of attachment 
of property does not invalidate the auction fcalo and 
is merely an irregularity if the parties knew what 
had b?,8ii attached and had been actually sold [p. 45, 
col. 2J 

Appeal against a decree of the Addi- 
tional District Judge, Nagpur, dated the 
12th July 1924, in Civil Appeal No, 38 of 
1924. 

Mr. VsV.Kelkar, for the Appellant. 

Mr, M. D. Khandekar, for the Respond- 
ents, 

JUDGMENT. The plaintiff Narain 
Teli, eued the defendants Ganpati and 
Tikaram inrespect of amortgage-deed dated 
3rd October 1921 executed by Ganpati for 
Rs. 300 of which Rs. 85-8-0 was due on a pre- 
vious mortgage. Tikaram was joined in the 
suit as he was alleged to have purchased 
the mortgaged subject which consisted of a 
half share in absolute occupancy field No, 
62 in Mouza Kesori, Nagur. Tikaram's de- 
fence in the first Courtrested amongst other 
grounds on the contention that the mortgage 
was void having been executed, while Col- 
lectors proceedings were pending there- 
am nt. 

The Subordinate Judge held that the 



[92 I. 0. 1926J 

mortgage-deed in suit was not void 
under 8ch. Ill para. 11 of the 0. P. 0. The 
field we are concerned with is admittedly 
No. 62 but the Subordinate Judge found 
that in the Schedule attached to the warrant 
of attachment the number of the field was 
given as No. 63 On SOfch September 1921 the 
decree was ordered to be transferred to the 
Collector and before him steps were taken 
as regards field No. 62 which was admittedly 
in the judgment-debtor's possession. The 
Subordinate Judge accordingly held that 
there having been no attachment of field 
No. 62, there would a fortiori be no valid 
sale thereof. The Collector's proceedings, 
therefore, being without jurisdiction, could 
not affect the validity of the mortgage-deed 
in suit executed on 3rd October 11)21 and 
decree in favour of the plaintiff was grant- 
ed accordingly. 

The defendant Tikaram appealed against 
this decision and the Additional District 
Judge, Nagpur, held that although the 
order of tiarisfer to the Collector was 
passed by the Executing Court on SOfch Sep- 
tember 1921 the proceedings did not reach 
the Collector till 16th November 1921; he 
accordingly held that the Collector was not 
seized of the proceedings on 3rd October 
11)21. On these and connected findings he 
dismissed the appeal. 

The first point for decision in this 
appeal concerns the last mentioned finding, 
Reference has been made in this connection 
by the Pleader for the appellant to the 
phraseology of para. 1 of Sch. Ill of the 
C. P. , viz., "Where -the execution of a 
decree has been transferred to the Collector 

under s. 68, " 

as well as to the initial portion of para. 11 
idem. 

It is urged in view of these provi- 
sions that the Collector must be con- 
sidered to have been seized of the case 
as from the date 30th September 1921 the 
date on which the order of transfer was pass- 
ed and that in view of this fact the mortgage 
in suit was void under para. 11, Sch, III re- 
ferred to above. An exactly similar point 
was considered by Halhfax, A, J. C., in 
Narayan v. Vithu (Second Appeal No. 573 
of 1922, decided on 26th" June 192J) whore 
the learned Additional Judicial Commis- 
sioner remarked as follows : 

''This view also I am unable to accept. At 
the moment a Civil Court transfers u decree 
to another Court, whether it be another 



TIKARAM V. NARAYAN, 



[92 I. 0. 1926] 

Civil Court or the Collector, it ceases to 
have any power to act in execution of that 
decree. Bat it cannot possibly be said that 
there is an interval, varying with the 
length of time the papers happen to take 
to reach the other Court, during which no 
Court has any jurisdiction. The possession 
of rights or powers does not depend upon 
knowledge of them. The Collector's posi- 
tion in this matter is exactly analogous to 
that of an heir to an estate, who has full 
power to deal with it from the moment of 
the death of the person he succeeds though 
he may not hear of it for months, and any 
alienation of his property by another dur- 
ing those months is no less invalid because 
he was not aware of his rights." 

I find myself in complete urn-, :> * h 1 
with this view. Clearly during the period 
from 30th September 1921 to 16th Novem- 
ber 1921 either the Executing Court or the 
Collector had jurisdiction and the question 
for decision is which was seized of the case. 
I am aware of the decision of West, J , in 
Mahadaji V. Karandikar v. Hari D. Chikne 
(1), but for my own part I entertain no doubt 
that during the period the Collector has 
jurisdiction, the jurisdiction of the Civil 
Court is to alUpractical purposes excluded, 
c/., Madho Prasad v. Hansa Kuar(*). The 
question before me, however, is as to from 
what date the Collector had jurisdiction for 
the purpose of the applicability of para, 11 
of the said Schedule, It cannot be denied 
that, if there had been no ministerial or 
office delay in forwarding the case to the 
Collector and if Form C had been sent to 
him on 30th September 1921 or the fol- 
lowing day, he would have had juris- 
diction forthwith and para 11 would 
have applied, Now, having regard to the 
obvious principle underlying the said 
provision, I am satisfied that the desir- 
ability provided for therein must have been 
intended by the Legislature to have had 
effect from the date the order of transfer to 
the Collector was passed. From that date 
the Executing Court may be ^regarded as 
ceasing to exercise jurisdiction for all 
practical purpose. The initial language of 
para. 11 is significant in this connection, It 

is 
u So long as the Collector can exercise 

jurisdiction." 
Potentially in the present case the Collec- 



45 



tor could exercise jurisdiction from 30th 
{September 1921 although actually he did 
not do so till 16th November 1921. Two 
decisions of this Court have been quoted 
on behalf of respondent viz,, Sonba v. 
Ganesha (3) and Harlal v. Narayan (4). 
The first decision does not deal with the 
exact point involved in this case and in 
the second one there was a mere remark 
by Hallifax, A. J. C., that the original 
proceedings "began on 2nd June 1917 
when the Form C was received by the Col- 
lector. 1 ' The same learned Additional 
Judicial Commissioner in the unreported 
case quoted above has given a more con* 
sidered finding on the point involved, a 
finding with which I agree and the remark 
relied on by respondent in the 18 N. L. R. 
case quoted was a mere obiter which I do 
not regard as necessarily conclusive. 

I am, therefore, of opinion that the 
present mortgage as having been executed 
during the pendency of the Collector's 
proceedings was void provided that the 
property sold therein was legally sold. 

On the remaining point for decision 
as to whether it was Oanpati's field which 
was attached, I think the appeal must go 
back to the lower Appellate Court for a 
fresh decision on the merits. The real 
point for decision in this connection has 
been missed entirely by the Additional Dis- 
trict Judge. That point is was it appli- 
cant's field which was actually attached or 
not? There may have been only a mis* 
description of it in the warrant. A mere 
misdescription would not necessarily in- 
validate the sale and would amount to a mere 
irregularity if the parties concerned knew 
what had been attached and had been ac- 
tually sold. 

The judgment and decree appealed 
against are accordingly reversed and the 
appeal will #o back to the lower Court for a 
fresh decision in accordance with the above 
remavks. Appellant will receive a certi- 
ficate for refund of Court- fees. Other costs 
of this appeal will follow the event. 

N. H. Decree reversed. 

(3) 17 Ind. Gas. 887, 8 N. L. R. 182. 

(4) 64 Ind. Cas, 420; 18 N. L. R. 152; (1922) A. I 
R. IN.) 267. . 



(1) 713, 332; 4 Ind. Dae fr.s) 224, 

(2) 5 A. 314; A. W, N. (1833; 0,), 3 Ind Dec (N, s. 



LAHORE HIGH COURT. 

CIVIL REVISION PKTJTION No. 352 OF 1924, 

March 26, 1925, 

Present :---Mr. Justice Martineau. 

Muvammat BARKAT BIBI 

DEFENDANT PETITIONER 

versus 
ABDUL AZIZ PLAINTIFF, ABDUL 

KARIM AND ANOTHER DEFENDANTS- 
RESPONDENTS. 

Civil Procedure Code (Act V of 1908), s. 115 
Revision, ground -for- -Error of law Burden of 
proof, wrong decision on question of. 

The giving of an erroneous decision on a point of 
law is not an irregularity or an illegality in the 
exercise of jurisdiction and does not justify interfer- 
ence in revision. 

A decision on a question of onus cannot be attacked 
in revision. 

Petition for revision against an order of 
the Senior Subordinate Judge, Gujranwala, 
dated the 25th January 1924. 

Maulvi Ghulam Mahy-ud-Din, for the Peti- 
tioner. 

Shaikh Niaz Muhammad, for the Re- 
spondents. 

JUDGMENT. The plaintiff sues for 
money due on a hundi drawn by the de- 
fendant in his favour. He had transferred 
the hundi to a certain firm, which, on failing 
to recover the money, through the Bank, 
returnrd the hundi to the plaintiff, with 
the Bank's note as to non-payment. 

The Trial Court placed the onus of prov- 
ing consideration for the hundi on the 
plaintiff, and found that he had not dis- 
charged it, and also held that the plaintiff 
could not su6 on the hundi without its 
being re-endorsed to him by the firm to 
which he had transferred it. The Senior 
Subordinate Judge, to whom the plaintiff 
appealed, held that the onus should have 
been on the defendant to prove that there 
was no consideration for the hundi, and also 
held that the plaintiff could maintain the 
suit on the hundi. He, therefore, remanded 
the case for re-trial. The defendant has 
applied to this Court for revision. 

There is, in my opinion, no ground for 
interference in revision, even supposing 
that the lower Appellate Court's decisions 
on the tWo points above mentioned were 
wrong, as the giving of an erroneous deci- 
sion on a point of law is not an irregularity or 
illegality. Karimullah v. Krimon (1) is 
moreover an authority for the view that a 
decision on a question of onus cannot be 

(1) 15 lad. Cas. 839; 102 P. R, 1912; 207 P, L, R, 1912; 
213 P, W. R, 1912. 



SHUNKAB v. MAHADBI. 

attacked in revision, 
tion with costs. 



[92 I. 0. 1926] 
I dismiss the applica- 



z. K. 



Application dismissed. 



OUDH CHIEF COURT. 

CIVIL APPLICATION No. 159 OF 1925. 

November 25, 1925. 
Present: Mr. Justice Eaza. 
SHUNKAR PLAINTIFF APPELLANT 

versus 

Musammat MAHADEI DEFENDANT 
OPPOSITE PARTY. 

Mortgage Mortgage of tenancy rights, whether void 
ab initio. 

A mortgage of his tenancy lands by a tenant-at- 
will is not void ab initio. 

Ram Autar v. Ram Asre, 66 Ind. Cas. 680; 8 0. L. 
J. 414 and Bhairon v. Balak, 68 Ind, Cas. 558; 9 L. 
J. 331; 4 U. P. L. R (0.) 88; (1922) A. L R. (0.) 287, 
referred to. 

Application for revision, under s. 25, Act 
IX of 1887, against a decree of the Munsif, 
Qaiserganj, as Judge Small Cause Court, 
Qaiserganj at Bahraich, dated the 30th May ' 
1925. 

Mr. Moti Lai Saksena, for the Appellant. 

Mr. Ram Shankar, for the Opposite Party. 

JUDGMENT. The defendant's hus- 
and Bhola (since deceased) executed the 
deed in question in favour of the plaintiff 
for Es. 73 011 the 10th June 1917. The 
deed in suit is alleged to be a mortgage- 
deed by which 10 bighas 10 biswas 
tenancy land was transferred to plaintiff to 
secure payment of Es. 73. The bond pro- 
vided that the money borrowed would be 
re -paid on Baisakh Sudi Puranmashi 1327 
Fasli and that should the money be not 
re-paid till the end of 1327 Fasli the credit- 
or would be entitled to continue in posses- 
sion. The deed in suit was described as a 
mortgage-deed. It appears 1 that the plaint- 
iff remained in possession of the tenancy 
during the lifetime of Bholav He was, how- 
ever, dispossessed by the defendant from 
the land after the death of- Bhola in July 
1922. He brought the present suit on 
the 20th March 1925 to recover Es. 73 with 
interest, total Rs. 100. He prayed for a 
simple money-decree against the defendant. 

The claim was resisted by the defend- 
ant on various grounds. 

The learned Munsif framed several issues 
and rejected the claim holding that the 



[92 I. 0. 1926] 

mortgage in suit being amortgageof tenancy 
land was void ab initio. 

The plaintiff applied in revision under 
s. 25 of the Small Cause Courts Act. 

The applicant's learned Counsel has re- 
ferred to the rulings in Ram Autar v. Ram 
Asre (1) and Bhairon v. Balak (2). The 
ruling in Bhairon y. Balak (2) is an authori- 
ty for the proposition that a mortgage by 
a tenant-at-will is not void ab initio. 

The deed in suit purports to be a mort- 
gage-deed but it was not registered as re- 
quired by law (see s. 59 of Act IV of 1882). 
The plaintiff himself has prayed fora simple 
money-decree nn the basis of the deed. It 
is to be determined if he can sue for the 
money on the basis of the deed and if his 
claim is within time. The point of limi- 
tation was not considered or decided by 
the learned Munsif though he had L framed 
an issue on that point. 

The application is allowed the suit is 
remanded to the Court below with direction 
to re-instate it under its original number 
and to dispose of it after determining the 
remaining points involved in the manner 
required by law. Casts here and hitherto 
will abide the result. 



PANDtJRANG V. SAMBHASHfiO. 



4t 



Z K. 



Application allowed. 



(1) 66 Ind. Cas 680, 8 O L, J 414. 

(2) 68 Ind. Cas. 5o8; 90 L. J. 331; 4 U, P, L. R. 
(0.) 88; (1922) A. I. K. (O ) 287. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT* 

MISCELLANEOUS CIVIL APPEAL No. 9-B OF 1923. 

April 3, 1924. 

Present: Mr. Kotval, A. J. C. 
PANDURANG APPELLANT 

versus 
SAMBH ASHEDRESPONDENT. 

pjxecution of decree Assignment of ' 

cation by assignee for execution of decre*, .-. f 
Re-assignment in favour of decree- holder, effect of 
Assignment by decree-holder in favour of third 
person Second assignee, whether entitled to execute 
decree Res judicata. 

An assignee of a decree made an application for 
being substituted in place of the decree-holder and 
for execution of the decree. The application was 
dismissed as the assignee produced no evidence to 
prove the assignment. A subsequent application for 
execution made by the assignee was dismissed on the 
ground of res judicata. Thereafter the assignee trans- 
ferred his rights under the assignment back to the 
decree-holder, who then assigned the decree to a third 



person and the latter made an application for 
execution of the decree 

UM t that lj.y the re-assignment of the decree in 
favour of the decree-holder, the latter obtained no 
better right to execute the decree than the assignee 
himself possessed and that consequently the second 
assignee was in no better position than the original 
assignee or the decree-holder and was not entitled to 
execute the decree, [p. 48, col. 2 J 

Miscellaneous appeal against the judg- 
ment of the Additional District Judge, 
Amraoti, dated the 7th of February 1923, 
remanding the case by Munsif, Kelapur, 
dated the 6th of November 1922. 

Mr. V. V. Ghitale, for the Appellant. 

Mr. M. R. Bobde, for the Respondent. 

JUDGMENT. Madhanna and Mar- 
kandi obtained a money decree against 
Pandurang in Civil Suit No. 359 of 1917. 
On the 15th August 1921 they assigned this 
decree to Tukaram. Tukarain applied to 
be substituted in place of the decree holders 
and for execution of the decree. This ap- 
plication was dismissed as Tukaram pro- 
duced no evidence to prove the assignment. 
Tukaram made a second application for 
execution which was dismissed on the 
ground of res judicata. Thereafter Tukaram 
transferred his rights under the assignment 
back to the decree-holders Madhanna and 
Markandi. Madhanna and Markandi then 
assigned the decree to Bambhashiva and 
Raglaoba. The proceedings out of which 
this appeal arises were taken by Sambha- 
shiva and Raghoba for execution of the 
decree. The Original Court dismissed the 
application on the ground of res judicata. 
The lower Appellate Court set aside that 
order and directed the execution to pro- 
ceed. The judgment- debtor appeals. 

It is admitted in this Court that if Tuka- 
ram had transferred the decree to a third 
party instead of re-transferring it to the 
decree-holders such third party would have 
been bound by all the disabilities of 
Tukaram and could not have executed the 
decree. 

The lower Appellate Court in this con- 
nection writes; 

lM The question of the principle of res 
judicata as being applicable to the present 
case is the preliminary point on which the 
decision of the lower Court is based. The 
lower Court has not decided the case on 
its merits. The main question in this case 
is whether by the transfer dated the llth 
July 1922 the original assignment in favour 
of Tukaram had become extinguished, or, 
the re-transfer dated the llth July 1922 



48 



BBSHl KflSH LAW V. SOI\ 7 S AND KtRiRS OF StfAMSHER KHAN. 



clothed the original decree-holders with 
the rights of mere transferees from Tuka- 
ram. I should think that the original 
assignment dated the 15th of August 1922 
became -\ * .:.!' * by means of the re sale 
or re-transfer by Tukararn in favour of 
Madhanna and Markandi the original decree- 
holders. The lower Court has not cited any 
authority nor has the Pleader for the res- 
pondent in this Court shown me any law on 
the subject whereby the transfer by Tuka- 
ram did not result in extinguishing the 
assignment in favour of Tukaram. When 
under the re-sale the decree-holders 
Madhanna and Markandi became entitled 
to execute the decree afresh, it seems to 
me that the only result that could ensue 
from the re- transfer was the vi- .: .'- 1 I-.JT 
of the assignment in favour of Tukaram 
which was dated the 15th of August 1921. 
la this view the principle of res judicata 
would not apply even though the motive 
of the several assignments be what it is 
suspected to be. In short the present ap- 
pellant cannot be held to be a representa- 
tive of Tukaram and be bound by what 
orders had been passed against Tukaram. 
I hold, therefore, that the applicant is entitl- 
ed to execute the decree and that the ques- 
tion on the merits should have been tried 
by the lower Court, 11 

It is not easy to follow what the lower 
Appellate Court means unless it be suppos- 
ed to hold what it has not anywhere said 
that in spite of the assignment by the 
decree-holders their right to execute the 
decree continued to exist in a state of 
suspense. The argument advanced by the 
learned Pleader for the respondents is that 
all that the Court decided in the two pro- 
ceedings taken by Tukaram in execution 
was that Tukaram was not the assignee of 
the decree-hoFdeis. That being so, the 
actual assignment upon which Tukaram's 
applications were based must be treated as 
ineffectual or non-existent and tha decree- 
holders 1 original right to the decree con- 
tinued to exist as if no assignment had been 
made and he was competent to assign it 
'to the respondents. The subsequent re-tr*ans- 
fer by Tukaram to the decree-holders, it is 
said, was a superfluity. I cannot accept 
thia argument which amounts to this, that 
an assignment valid in all respects and 
treated as such by the parties thereto may 
be nullified by the assignee's failure to 
produce evidence in proof of it when he 
applies for execution. The decree-holders 



[92 1. 0. 1928] 

had parted with all their rights and had 
no dormant or suspended right which could 
be said to have been revived. The assign- 
ment in favour of Tukaram remained in, 
force as between the parties thereto in spite 
o the decisions in proceedings taken by 
Tukaram, and it must be held that whatever 
right the decree-holders acquired subsequ- 
ent to the transfer to Tukaram was acquired 
by them only as Tukaram's transferees and 
there was not any right in suspense which 
had revived. It is, as I have said above, 
admitted that if Tukaram had transferred 
his right under the assignment to a person 
other than the decree-holders, that person 
could not have been entitled to execute the 
decree because of the decision against 
Tukaram in the proceedings taken by him, 
I see no reason why the fact that Tukaram's 
transferees are the decree- holders should 
make any difference. I hold that the decree- 
holders as the transferees of Tukaram were 
in no better position than Tukaram and were 
debarred from executing the decree. That 
being so, their transferees also have no 
right to execute the decree. I set aside the 
order of the lower Appellate Court remand* 
ing the case for further trial and restore 
the order of the first Court. The respond* 
ents will pay the appellant's costs in all 
Courts and bear their own. Pleader's fee 
Ra. 25. 
z. K. Order set aside. 



CALCUTTA HIGH COURT. 

APPEAL FROM APPELIATE DECREE No. 2076 

OF 1923. 
June :'3, 1925. 

Present; Mr. Justice Chakravarti, 

Raja RISHI KESH (RISHI CASE IN 

Vakalatnamah) LAW PLAINTIFF 

APPELLANT 

versus 

SONS AND HEIRS OF 8HAMSHEH KHAN 
AN i) OTHERS DEFENDANTS RESPONDENTS. 

Bengal Cess (Amendment] Act (IV of 1010:, ss, 5$ t 
52 A Notice that tenure has been included within 
zemindari, publication of> proof ofNotice published 
before passiny of Amending Act of 1910, < whether can 
be proved by certificate granted subsequently Cess, 
liability to pay. 

The publication oi the notice mentioned in s 52 of 
thcj Bongai Cess (Amendment) Act muat bo strictly 
proved before the liability of the holder of a tenure 
in respect of a cess can arise. |p. 49, col l.J 

A certificate given by tho Collector in 



(92 I. 0. 1926] 



RtSHI KESH tAW V. SONS AND HEIRS Of StfAMSHER KHAK. 



49 



with the provisions of s. 52A of the Bengal Cess 
(Amendment) Act that a notice under s 52 of the 
Act lias been duly published, in conclusive proof of 
the fact that the publication w*s made. It is im- 
material that the certificate refers to a publication 
which took piaee before the pasting of the Bengal 
Cess (Amendment) Act IV of 1910 which added s 52 A 
to the Bengal Cess (Amendment) Act The Amending; 
Act only provides the method of proving the publi- 
cation of the notice It creates no new right nor 
does it affect any existing right A notice published 
before the passing of the Amending Act, may, there- 
fore, be proved by the production of a certificate 
from the Collector given after the pushing of tiic 
Amending Act that the publication had been duly 
made. 

Appeal against a decree of the Sub- 
ordinate Judge, First Court, Midnapur, 
dated the 3rd January 1923, affirming that 
of theMunsif, Third Court, Midnapur, dated 
the 20th December 1921. 

Mr. Narendra Chandra Bose and Babu 
Nalin Chandra Paul, for the Appellant. 

JUDGMENT. This is an appeal by 
the plaintiff and arises out of suit for re- 
covery of cesses from the holders of a rent- 
free tenure. The plaintiff's case was that he 
was made liable for the payment of cesses 
for the rent-free tenure held by the defend- 
ants and had paid the same, that he now 
brought the suit for the recovery of the 
amount so paid, that the inclusion of this 
rent-free tenure within the zemindari of the 
plaintiff was duly published by the Col- 
lector under s 52 of the Cess Act on the 
29th of June, 1908, and that after the pub- 
lication of the notification the defendants 
became liable to pay the cesses to the plain t- 
iff. The defendants in the suit denied the 
publication of the notification, under s. 52. 
It appears from the case of Askanulla Khan 
Bahadur v. Trilochan Bagchi (1) that the 
publication of such notice should be strictly 
proved before the liablity of the defendants 
can arise. To obviate the difficulty of prov- 
ing such Notification Act IV of 1910 (B. C.) 
added s. 52A to the Cess Act which 
runs as follows : " Whenever any notice 
has been duly published under s. 52, the 
Collector shall sign a certificate to that 
effect, and such certificate shall be con- 
clusive proof that the publication has been 
duly made." It appears that in compliance 
with this section the Collector ot Midnapore 
signed a certificate on the 28th of November 
1921. The plaintiff in order to prove the 
due publication of the notification under s. 
52 produced the certificate so signed by the 
Collector aad contended that this certificate 



should be accepted as the conclusive proof 
of the fact that the notification under s. 52 
was published on the 29th of June 1908. 

The Courts below have held that this certi- 
ficate by the Collector is not sufficient in 
law for proving, the publication of the noti- 
fication under s. 52, because the publica- 
tion was made before the amending Act 
came into operation. As there was no other 
independent evidence in proof of the fact 
of the publication the plaintiff's suit was 
dismissed by both the Courts below. 

The learned Advocate for the appellant 
has contended that this was not the case 
of giving any retrospective effect to any 
enactment. Under s. 52A the Collector 
may sign a certificate at any time after the 
publication of the certification under s. 52 
of the Cess Act. The certificate produced 
in the case proves that notice under s. 52 
was published on the 29th of June 1908. 
The amending Act only provides the method 
of proving the publication made ; it creates 
no new right nor does it affect any existing 
right. There is nothing in s. 52A which 
prevents the Collector from signing a certifi- 
cate at any time after the publication has 
been made. When such a certificate is 
given according to s. 52A such a certificate 
will prove conclusively that the publication 
was made. This certificate proves con- 
clusively the publication on the 29th of 
June 1908. The liability of the defendants 
is established when such a publication is 
proved and the certificate proves that pub- 
lication. 

I think, therefore, the contention of the 
appellant must prevail and it should be 
held that the plaintiff has conclusively prov- 
ed by the production of the certificate that 
the notification under s. 52 was published 
on the 29th of June, 1908. 

The judgments of the Courts below are 
set aside and the case is sent back to the 
Court of first instance for the trial of the 
suit on the merits. The plaintiff will get 
the costs of this appeal. Costs of the lower 
Courts will abide the result. 

z. K. Appeal decreed'^ 

Case remanded* 



(1) 13 0, 197; 6 Ind. Dec, (s. 8.) 630, 



50 8. C. MITRA 

OUDH JUDICIAL COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS APPLICATION No. 64 OF 1925. 

October 5 & 13, 1925. 

Present: Mr, Hasan, J. C 

8. C. MITRA, LIQUIDATOR BANK OF 

OUDH LTD., LUCKNOW (Now IN 

LIQUIDATION) APPLICANT 

versus 

Thakar NAWAB'ALI KHAN AND OTHERS 
OPPOSITE PAKTY. 

Companies Act (VII of 1913), s. 235 Directors of 
Company, decision of Imprudent act Personal lia- 
bility of Directors, when arisesPersonal gam acquired 
by DirectorRefund Managing Director, duties of 
Act inspired by personal motives Liability. 

Directors of a Company acting within their powers 
and with reasonable oare, and honestly in the interests 
of the Company, are not personally liable for losses 
which the Company may suffer by leason of their 
mistakes or errors of judgment, [p. 57, col. 1 J 

Facts which show imprudence in the exercise of 
powers conferred upon the Directors of a Company 
will not subject them to personal responsibility; the 
imprudence must be so great and manifest as to 
amount to gross negligence, as for example where the 
Directors are cognizant of circumstances of biich a 
character, so plain, so manifest, and so simple m 
operation, that no man with any ordinary degree of 
prudence acting on his own behalf would have entered 
into such a transaction as the Directors have entered 
into. But if the Directors are authorized to do an 
act in itself imprudent, they are not to be held res- 
ponsible for the consequences of doing it. [p. 56, col. V, 
p. 57, col. 1J 

In respect of duties which, having regard to the 
exigencies of business and the Articles of Association, 
may properly be left to some other official, the Direc- 
tors aie, in the absence of grounds for buspicion, 
justified in trusting that official to perform such 
duties honestly. [p 57, cols, 1 & 2 ] 

The Directors must, however, observe good faith 
towards their share-holders and towards those who 
take shares from the Company and become co-adven- 
turers with themselves and others who may join them. 
The maxim caveat emptor has no application to such 
cases, and Directors who so use their powers as to 
obtain benefits for themselves at the expense of the 
share-holders, without informing them of the fact, 
cannot retain those benefits and must account for 
them to the Company so that all the share-holders 
may participate in them, fp 57, col. 2] 

The mere fact that the Directors of a Company 
carrying on a banking business allow ad^v anc-es to be 
made on the strength of a promise* by the debtor to 
execute a mortgage instead of the mortgage itself, 
does not amount to an act of misfeasance on the part 
of the Directors so as to make them personally liable 
to the extent of the amount of the advances. Pp. 56, 
col. 2] Lt 

Where the Directors of a Bank permit a depositor 
to make an over-draft and one of the Directors who 
is a cr.editor of such depositor receives a portion of 
the amount represented by the over-draft in payment 
of the debt due to him by the depositor, such Director 
cannot be allowed to retain the amount to the detri- 
ment of the share-holders and the creditors of the 
Bank and is liable to refund it to the Bunk. [p. 57, 
CQU.J 



KAWAB ALt ItHAM. [92 I. 0. 1926] 

The duties of a Managing Director are of a higher 
standard than of an ordinary Dhector, and where by 
any act of the Managing Director which is inspired 
by motives of personal gain the Bank suffers loss, 
the Managing Director is liable to make good such 
loss [p 58, col 1 ] 

[Case-lav/ discussed ] 

Application under sections 195, 215 and 
235 of the Indian Companies Act. 

Messrs S. N. Roy, K. P. Misra and Oh. 
Haidar Husain, for the Applicant. 

Mr. H. K. Ghosh, for Opposite Parties 
Nos. 1, 7 and 9. 

JUDGMENT. 

(October 5, 1025 ) These proceedings 
originated in summons issued under s. 235 
of the Indian Companies Act, 1913, on an 
application presented by one Mr. 8. C. 
Mitra, who was appointed liquidator by a 
resolution of the share-holders dated the 
15th September 1923 of the Company 
called the Bank of Oudh Limited. The 
array of the respondents to the liquidator's 
application is as follows: 

I. Thakur Nawab AH Khan, taluqdar of 
Akbarpur, district Sitapur. 

2 Lala Jai Ram Das, merchant, pro- 
prietor of Lyallpur Sugar Company. 

3. Raja Hukum Tej Protap Singh, Raja 
of Pratapner. 

4. Kunwar Shri Krishna. 

5. Lala Jagmohan Lai Rastogi. 

6. Kalidas Kapur. 

7. Lala Bhola Nath Mehrotra, rais. 

8. Mr. F. A. Labantik, Engineer. 

9. Babu Manohar Lai Gupta. 

10. Mr. Jang Bahadur Sinha, mer- 
chant. 

II. Kunwar Sarup Narain, zemindar. 
To this were added Mr. C. S. Oehme and 

Pandit Ramriath Dave under the order of 
the Court dated the 14th April 1925. 

The Company was incorporated on the 
?5th October 1920 and the Bank was floated 
sometime in February 1921. The last- 
mentioned respondent, Pandit Ramnath 
Dave, was appointed Manager of the Bank 
by a resolution patsed at a meeting of the 
Board of Directois held on the 6th Novem- 
ber 1920. He occupied that position till 
the date of liquidation. The other respon- 
dents were the Directors of the Bank and 
the respondents Lala Jagmohan Lai and 
Babu Jang Bahadur Sinha were also Man- 
aging Directois. The following table will 
show at a glance the date on which each 
of the respondents joined the Board of 



[92 I. 0. 1926] 0. d. MlfftA t?. NAWAlULt KHAtf. 

Directors and also the date on which he ceased to be a Director. 



51 



No. 



Name of the Director. 



1 Thakur Nawab Ali Khan 

2 L Jairam Das 



Raja Hukam Tej Frotap Bahadur Singh 
Kunwar Sri Krishna 



5 Lala Jagmohan Lai 

6 Kalidas Kapur 

7 Lala Bhola Nath Mehrotra 

8 Mr. E. A. Labanti 

9 Babu Manohar Lai Gupta 

10 Babu Jang Bahar Sinlia 

Again 

11 Kunwar Sarup Naram 

12 Mr. C. I. S. Oehme 



Lala Jagmohan Lai held the office of 
the Managing Director from the 19th De- 
cember 1921 and continued to hold it till 
the date of liquidation. Babu Jang Baha- 
dur Sinha was the M .:* - Director from 
the 19th February 1921 till the 12th August 
1921. The respondent, Raja Hukam Tej 
Protap Bahadur Singh, died during the 
pendency of these proceedings and no 
steps have been taken to bring on the re- 
cord any of his legal representatives. Ser- 
vice of summons could not be effected, in 
spite of strenuous efforts, on the respon- 
dent, Kunwar Sri Krishna. Mr. Oehrne 
lives for some time past at Rangoon. 
He has appeared neither personally nor 
through any Pleader of the Court. I have 
thought it advisable to conclude these pro- 
ceedings by treating Raja Hukam Tej 
Protap Bahadur Singh, Mr. Oehme and K. 
Srikrishna as no party to the application 
and have given liberty to the liquidator 
to take any legal action he may deem fit 
as against these persons hereafter. It is 
also necessary to mention that one Babu 
Peare Lai Bhargava was also a Director 
of the Bank from the date of its incorpora- 
tion till about the middle of July 1921 when 
he died. 

The liquidator claims compensation 
from the respondents for their acts of mis- 
feasance and breach of trust in respect cf 
the following four transactions: 

L Over-draft without any security allow- 
ed to Mr. E. A. Labanti to the extent of 
Rs. 91,516 between the 4th March 1921 and 
the 20th September 1921. 

2. Over-draft without any security al- 
lowed to Mr. E, A. Labanti from the 20th 



Date of appointment Date of resignation. 



19th February 1921 
do 

do 
19th December 1921 

do. 
Ho, 

31st March 1922 
do 

14th October 1922 
IHth February 1921 

4th October* 1922 
5th December 1922 

19th February 1921 



April 1923 

Continued till the date of 
liquidation. 
April 1922. 

Continued till the date of 
liquidation 

do. 

March 1922. 

16th November 1922. 

Continued till the date of 

liquidation. 

do. 

12th August 1921 

14th March 1923 

Continued till the date of 

liquidation. 
12th July 1921 



liquidator 
personally 
mentioned 
thereon is 



September 1921 to the 7th July 1922 to the 
extent of Rs. 41,3y3-15-4. 

3. Over-draft without any security al- 
lowed to Messrs Labanti and Co., Limited 
of Lucknow from the 21st October 1921 up 
to the 12th June 1922 to the extent of 
Rs. 4,303-5~G. 

4. Over-diaf t without any security allow- 
ed to the Upper India Investment Limited 
(now in liquidation) from the 19th April 
1922 up to the 6th February 1923 to the 
extent of Rs 28,927-50. 

The ground on which the 
seeks to make the respondents 
liable for the sums of money 
above together with interest 
stated in a somewhat cryptic form in 
para. 7 of the application. That paragraph 
is as follows: 

"7. That the transactions detailed in 
para. 5 of the application are on the face 
of them so reckless and extravagant 
in their nature as lead the applicant to 
infer either fraud or gross and wilful neg- 
ligence on the part of the persons concern- 
ed in the management of the aforesaid 
Bank and are nothing short of breach of 
trust on the part of the Directors of the 
Bank during whose tenure of office the 
aforesaid transactions were entered upon." 

The respondents have generally denied 
that they are guilty of any act of misfeas- 
ance or breach of trust of fraud or gross 
and wilful negligence. They have also 
pleaded ignorance of the transactions 
which form the subject-matter of the 
charges stated in the liquidator's applica- 
tion and good faith. One of the respond- 
ents, Thakur Nawab Ali Khan, has also 



52 



put forward bar of limitation to the appli- 
cant's claim. Home of the respondents 
have entered the witness-box and given 
evidence in relation to the subject-matter of 
the charges. They are Thakur Navvab AH 
Khan, Lala Jagmohan Lai, Babu Bhola 
Nath Mehrotra, Mr. E. A. Labanti, Babu 
Manohar Lai Gupta, Babu Jang Bahadur 
Sinha and Pandit Ramnath Dave, 

No material facts are in dispute in these 
proceedings. The controversy relates to 
the inferences and the legal consequences 
which may flow from the admitted or 
proved facts. It is proved by the books 
of the Bank in the possession of the 
liquidator and shown to the respondents at 
the trial that the over- drafts as stated in 
the liquidator's application were, as a 
matter of fact, made and eno argument 
was addressed to me by or on behalf of any 
one of the respondents, challenging the 
accuracy of the proof just now mentioned. 
The exact nature and specific details of 
these transactions will, however, be stated 
by me in the course of this judgment. 

It will be convenient to take up first the 
over-draft transaction with Mr. E. A. 
Labanti. In this connection the earliest 
document on the record is the copy of a 
letter dated the 14th July 1921 addressed by 
Mr. Labanti to the Manager of the Bank. 
This copy has been accepted by both sides 
as admissible evidence in the case. 1 think 
it necessary to incorporate the whole of 
that letter in this judgment. 

"0142-15-21 14th July 1921. 

"Confidential 

"The Manager, Bank of OudL Ltd., 
Lucknow. 

"Dear Sir, 

"In continuation of our verbal conversa- 
tion, we beg to submit this our application 
for a loan of rupees one and-a-half lakhs 
on the security of our buildings and lands, 
valued at rupees three lakhs, for which a 
true copy of the valuation certificate is 
herewith enclosed. We may here also 
mention that, though our property has been 
valued at three lakhs by Messrs. Lane 
Brown and Hewlett, Government Valuators, 
the property isworth very much more. 

"The mortgage to be in the first case for 
one year, or three years. We give below a 
list of our creditors, with the approximate 
Bums due them, from which it will be seen 
that .you will only have to pay the decreed 
amount No. 1 on the list, as the remainder 
QilUo JSfp/ 6 will not be paid in 



S. 0. M1TJRA ?;. NAWAB ALl KHAN. [92 I. 0. 1926] 

cash as they have agreed to deposit their 



respective amounts with your Bank on a 
fixed deposit account. 

"List of creditors is as follows:- 

Ks. a. p. 

1. Decree 'Mu i iMm'" . 43,000 U 

2. Babu Tnloki Nath 

Bhargava ... 45,000 

3. Babu Peari Lai Bhar- 

gava ... 22,000 

4. Mr. 0.8. Pandya ... 13,000 U 

5. Pandit Kandhya Lai... 6,OUO< 
G. Mr. J. B. Sinha ... 8,000 



Total Rs. 



1,37^0 

ige i ()f rupe 







"There is another mortgage \ pf rupees 
fifty thousand on our property, which 
mortgage will fall due on the 13tli of Novem- 
ber 1921 and which when due^will have to 
be taken over by your Bank, Bringing the 
total amount due to rupees two lakhs. 

i4 As the matter is most urgent, we shall 
thank you for an immediate reply if 
possible. 

"Thanking you in anticipation. 1 ' 

(Exhibit L.). 

From the dates given in the liquidator's 
application and stated by me in an earlier 
portion of the judgment it 1vill be seen 
that advances to Mr. Labanti had com- 
menced on the 4th March 1921, that is to say, 
4 months 10 days earlier than the letter of 
the 14th July 1921. The reasonable infer- 
ence is that the transaction with Mr. Labanti 
was in course of negotiation before the 
formal application for the loan above refer- 
red to was made by Mr. Labanti. As to 
when, by whom and in what circumstances 
the advances prior to the 14th July 1921 
were sanctioned the record of the case is 
absolutely silent. In this state of evidence 
the only proper conclusion seems to me to 
be that the advances were permitted in 
anticipation of the settlement with Mr. 
Labanti. 

It appears from the minute of the pro- 
ceedings of a meeting of the Board of 
Directors that a notice was issued on the 
29th July 1921 for a Board's meeting to be 
held on the 30th July 1921. Item Mo. 3 ojE 
that notice was as follows: 

"To dispose of the application of Messrs. 
Labanti and Co., for an advance of 
Es. 1,50,OOU by mortgage over his kothi" 
This notice is contained in Ex. 3. On 
it are endorsed the following remarks rele- 
vant to the question under consideration 



[92 I. 0. 1926] 



S. C. MITRAL. NAWAB AL1 KHAN. 



53 



made by the Director, Babu Jang Bahadur 
Sinha; 

4< If the transaction be considered sound 
by the co-directors and if the Bank can 
a-fford the loan may he sanctioned. This 
will better the situation of the Bank as 
5 percent, commission will be a substantial 
earning and will cover the preliminary and 
other expenses " The proposed meeting 
did not come off until the 12th August 
1921, At this meeting the following gentle- 
men were present: 
Mr. G. S. Oehme. 
Mahant Sant Rain Das. 
RajaPratap Ner. 

The resolutions passed at that meeting 
and which have a bearing on the present 
case, were as follows: 

"Resolved that the Manager be directed 
to correspond with Messrs. Ram Chandra 
Ram Saran to inquire if they are agreeable 
to take payment of the first mortgage just 
now and the second one subsequently. 

''Resolved that the Manager may take the 
agent of the mortgagee to the undersigned 
to discuss the matter. 11 The "undersigned" 
was Mr. C. Sandford Oehme (Ex. 3). It is 
agreed that the mortgages mentioned in 
these resolutions related to Mr. Labanti's 
property. 

The proceedings of the meeting of the 
Board of Directors dated the 19th December 
1921 supply the next relevant matter. At 
this meeting the following Directors were 
present: 

Raja Hukum Tej Protap Singh. 
Mahant Sant Rain Das. 
Thakur Nawab Ali Khan. 
Lala Jagmohan Lai was appointed a 
Director and also a Managing Director of the 
Bank and the sixth resolution passed at 
that meeting was 

''Resolved that the undersigned Directors 
disapprove of the manner in which Messrs. 
Labanti and Co.'s transaction has been 
done in utter disregard of the directions 
laid down in the Board's meeting dated 
12th August 1921 but as the money has 
already been advanced to them a mortgage- 
deed with sufficient and proper security 
should be executed by Messrs. Labanti 
and Co , and the Managing Director be re- 
quested to see to its completion, 11 It is 
agreed that "Messrs. Labanti and Co." is a 
mistake for Mr. E. A. Labanti (Ex. 3). 
Having regard to the dates of the over-draft 
transactions with Mr. Labanti it will be 
that #19 first se^s of over-drafts ag- 



gregating to Rs. 91,516 had already been 
completed and a portion of the second had 
also been perfected before the meeting of the 
19th December 1921 was held. 

From a perusal of the minutes of an ex- 
traordinary general meeting of the share- 
holders of the Bank (Ex. 4) held on the 3rd 
October 1922 it appears that a resolution 
was passed that "a commission be appointed 
to investigate the affairs of the Bank and 
report at the next meeting 11 . ... The com- 
mission consisted of the following gentle- 
men* 

"J. B. Sinha (Jang Bahadur Sinha). 

N. K. Shavaksha. 

Mr. Murari Lai Bl.Mi'ir-u.i, and 

B. Manohar Lai." 

At this meeting the following gentlemen 
amongst others were present : 

Thakur Nawab AH Khan. 

Mr. E. A. Labanti. 

Kiin war Shri Krishna. 

B. Bhola Nath Mehrotra. 

B. Manohar Lai Gupta. 

B. Jang Bahadur Sinha, and 

Babu Jagmohan Lai. 

On the following day, that is the 4th 
October 1922, a meeting of the Board of 
Directors was held. At this meeting a 
resolution was passed requesting the 
Managing Director, that is Lala Jagmohan 
Lai, to afford every facility to the com- 
mission in the matter of the investigation 
of affairs of the Bank. An other resolution 
passed was "that a suit be at once filed 
against Mr. E. A. Labanti and P. A, 
Labanti and Co. for the recovery of the 
money due to the Bank from them. In this 
connection the Directors thankfully accept 
the offer of a temporary advance of the 
following items from the|under-noted Direct- 
ors with a view to enable the Bank to pro- 
ceed with the case." 

Rs. 
"1. Thakur Nawab Ali Khan ... 500 

2! Haja Sahab Partapner (i. e. 
Raja Hukum Tej Pratap 
Bahadur Singh). ... 750 

3. L. Manohar Lai Gupta ... 250 

Rs. 1,500" 

Finally the following resolution appears 
in the proceedings : "On proposal being 
put up by L. Manohar Lai Gupta it was 
resolved that the Managing Director be 
requested to resign his position in view 
of the affairs of the Bank aud he may 



54 



S, C. M1TRA V, NAWAB ALI KHAN. 



also be requested to refund the salary 
he has so far received in view of the 
circumstances of the Company and that he 
may be retained as a Director to render 
his assistance to the future administra- 
tion by his past experience and know- 
ledge of the affairs of the Bank. Lala 
Jagmohan Lai kindly having consented to 
the terms of this resolution, it was further 
resolved to eend him a letter of thanks on 
behalf olthe Board for his ready acceptance 
of the proposal."" To my mind the idea 
underlying this resolution is that as the 
Bank was fast approaching the state of 
bankruptcy it was considered advisable to 
dispense with the services of a Salaried 
Managing Director. 

It was assumed at the hearing, and I 
think rightly that one of the matters 
with which the commission was charged 
was an inquiry into the over-draft 
advances to Mr. Labanti. It is unfor- 
tunate that the record of these proceed- 
ings is wholly silent as to the result 
of the inqiiiry, if any. The first and the 
only report of the Directors was pub- 
lished on the 21st June 1922. The 
report is signed by Kunwar Shri Krishna, 
Jagmohan Lai and E. A. Labanti as Direct- 
ors. To this report is also attached u balance- 
sheet of the Bank of Oudh, Limited, 
Lucknow as at 31st March 1922." This 
sheet is again separately signed by the 
three Directors mentioned above and also 
by Ramnath Dave, the manager. It also 
bears the certificate of the auditors, Basant 
Ham and sons (Ex. A2). The report to- 
gether with the balance-sheet was intended 
to be presented at an ordinary general 
meeting of the share-holders to be held on 
the 8th July 1922. This proposed meeting 
was not held, however, until the 19th No- 
vember 1922. At this meeting amongst 
others, the following gentlemen were pre- 
sent : 

Mr. E. A. Labanti. 

Lala Jagmohan Lai, and 

Kanwar Shri Kirshna (Ex. 4). 

In relation to the Directors 1 report 
the following resolution was passed : 
"That the balance-sheet be and is hereby 
passed and adopted subject to the auditors' 
report read by the chairman before th e 
meeting/' Now in this balance-sheet on th e 
side of the assets are mentioned several 
debts including the following ; 



[92 1 0. 1926] 

1. Debts considered good Rs. a. p. 

in respect of which the 
Bank has no security 
other than debtors' per- 
sonal security ... 1,18,974 10 7 

2. Of the above debts due 

from a Director ... 1,35,133 14 10 

3. Bad or doubtful debts... Nil. 

In respect of the second entry the follow- 
ing statement appears in the report : 

"It would be further observed from the 
balance-sheet before you that a sum of 
Rs. 1,35,133-14-10 is shown as due from one 
of the Directors of the Bank. As a matter 
of fact this sum was advanced to the gentle- 
man long before he was elected as Director 
which was on the 1st March 1922 (the last 
day of the period under report) and the 
sum had to be shown in the balance-sheet 
to fulfil the requirements of the Indian 
Companies Act." It is agreed in these 
proceedings that the second entry in the 
balance-sheet and the statement in the 
report relate to the over- draft transactions 
of Mr. E. A. Labanti. 

Now some more facts must be stated in 
relation to the transactions discussed in the 
preceding paragraphs. A portion (that is 
Rs. 48,300) of the first series of the over- 
drafts was subsequently secured by an assign- 
ment to the Bank of a fourth mortgage in 
respect on the Labanti buildings by the 
mortgagee Babu Trilokinat Bhargava. This 
Babu Trilokinath Bhargava is the same 
gentleman who is mentioned at No. 2 of the 
list of creditors given in Mr. Labanti's letter 
of the 14th July 1921 already quoted and 
it is agreed that the debt shown opposite to 
his name in the said list was the sum due 
to him under the mortgage just now men- 
tioned. The mortgage was transferred by 
the Bank to a firm of the name of Baldeo 
Das Balgobind in satisfaction of a claim 
arising out of a deposit standing in the books 
of the Bank in favour of the firm. The 
entry dated the 9th July 1922 shows that 
there was a ciedit balance for a sum of 
Rs. 32,90 in favour of the firm. It also 
appears from the evidence of Lala Jag- 
mohan Lai that one Pandit Achuta Ram, the 
treasurer of the Bank, had deposited a sum 
of Rs. 15,000 with the Bank as security for 
the discharge of the duties of the office 
which he held. When Achuta Ram re- 
signed his appointment he asked the Bank 
for the return of his security deposit. 
The Bank was unable to do so. To settle 
this transaction the firm gave a hand-not 



92 1 0. 1926] 



S, 0, MITRA V, NAWAB ALT KHAN. 



55 



to Achuta Ram for Rs. 15,000 and the 
Bank set off that amount as against the price 
of the mortgage In other words the Bank 
sold the mortgage to the firm for the 
credit balance of the 19th July 1922 and 
this amount of Rs. 15,000. The result was 
that the balance due to the Bank from Mr. 
E. A. Labanti in respect of the first series 
of the over-draft was Rs, 91,516 minus 
Rs. 48,300, that is Rs. 48,L>16 A suit for the 
recovery of this balance was instituted by 
the Bank in the Court of the Subordinate 
Judge of Lucknow against Mr. E. A. 
Labanti and a decree was obtained for 
Rs.48,000odd. Several attempts in execution 
of the decree were made to realize the 
amount due thereunder but all have failed 
and no action has been taken in respect of 
the second series of the over-drafts. Finally 
oa the 14th July 1925 during the pendency 
of these proceedings Mr. E. A. Labanti 
applied to the Court of the District Judge of 
Lucknow for a declaration of his insolvency. 
One word as to the nature of the advances 
made by the Bank to Mr. Labanti. Out of 
the total sum of the two series of the over- 
drafts, Rs. 41,393-154 was paid by the 
Bank to Mr. E. A. Labanti personally and 
to persons holding cheques drawn by him. 
The figure just now mentioned also includes 
interest on those advances. This is proved 
by the entries in the books of the Bank 
now in the possession of the liquidator. An 
abstract of those books has been prepared 
and filed in these proceedings. The rest of 
the money covered by the over- drafts was 
dealt with in the following manner : Mr. 
E. A. Labanti's creditors absolved him from 
liability for their claims and in lieu there- 
of accepted from the Bank fixed deposit 
receipts for the sums of money due to them 
from Mr. Labanti Amongst these credi- 
tors were Babu Jang Bahadur Sinha and 
Babu Peare Lai Bhargava (now deceased). 
Both of them were Directors of the Com- 
pany. They are both mentioned in 
the list of creditors as given in Mr. 
Labanti's letter dated the 14th July 1921. 
It is agreed that these two gentlemen 
received fixed deposit receipts from the 
Bank for Rs. 7,630 and Rs. 21,227-10 9 
respectively. The receipts for the debts of 
Babu Pcare Lai Bhargava were issued in 
the names of hb son, brother and nephew. 
Babu Jang Bahadur Sinha realised in cash 
from the Bank Rs. 2,370-7-6 on the 2nd May 
1922, Rs 2,439-13 3 on the 17th November 
1922 w d $8.3,034-0-6 or* the 7th J<wiary.l922 



on his fixed deposit receipts as they fell due. 
As to the mortgage security offered by 
Mr. Labanti in his letter of the 14th July 
1921 it is enough to say that no moitgage 
was ever executed. It appears from the evi- 
dence that at an early stage of the transac- 
tion a draft of the proposed deed of mort- 
gage tyas prepared and even a stamp of 
the requisite value was purchased. Mr. 
Labanti says that the mortgage-deed was 
not executed for the reason that the Bank 
had no funds large enough to fulfil the 
the agreement for the loan of Rs. 1,50,000. 
On the other hand, Ramnath Dave says that 
Mr. Labanti refused to execute the promis- 
ed mortgage. In this conflict of evidence 
I am prepared to accept the statement of 
Ramnath Dave as more reliable because it 
is consistent with admitted facts and pro- 
babilities of the case. It appears from the 
proceedings of the meetings of the Board 
of Directors, to which reference has already 
been made, that the Board was always 
anxious to complete the mortgage transac- 
tion and 1 see no reason whatsoever why the 
Directors should have refused to get it 
through for the sums that they had al- 
ready advanced to Mr. Labanti even if 
they had no money to make up the 
total of Rs. 1,50,000. Mr. Labanti has 
filed certain documents showing that he 
called upon the Bank to complete the loan 
of Rs. 1,50,000 and to have the mortgage 
executed. I prefer to take the view that 
after having received nearly all which the 
Bank had promised to advance, Mr. Labanti 
invented excuses to extricate himself from 
the performanceof his partof the transaction. 
At the conclusion of the proceedings before 
me Mr. Labanti personally and also through 
his Counsel, Mr. K. P. Misra, agreed that 
an order of payment of the sum of 
Rs. 76,593-15-4 due from him to the Bank 
may bs made against Mr. Labanti in these 
proceedings. This concludes the narrative 
of the events so far as the charge founded 
on the over-draft transactions of Mr. Labanti 
is concerned. 

Now I come to the charge of the over- 
draft of Rs. 23,927-5 allowed to the Upper 
India Investment Limited (now under 
liquidation) between the 9th April 1922 
and tho 6th February 1923. The ?\[ mauiX' 
Director of the Investment Company "was 
Kun war 8hri Krishna. The money covered 
by the over-draft was paid in cash under 
cheques issued by Kunwar Shri Krishna 
and $9 we have seen before he was also 



8. C. MITBA V, NAWAB ALI KHAN. 



[92 I. 0. 1926) 



one of the Directors of the Bank from the 
19th December 1921 to the 15th September 
1923. The over draft was, therefore, made 
while Kunwar Shri Krishna was the Director 
of the Bank and the Managing Director of 
the Investment Company. It also ap- 
pears from theevidencethat Jagmohan Lai's 
brother, !*>;. Mini, was one of the Directors 
of the Upper India Investment Limited. 
This Balgobind was one of the partners 
of the firm Baldeo Das and Balgobind, 
whose dealing with the Bank has already 
been mentioned in this judgment. Baldeo 
Das is the father of Lala Jagnaohan Lai. 
In his evidence in these proceedings Lala 
Jagmohan Lai says that the firm is owned 
by Balgobind alone and that he has no 
interest in that firm. It would be a severe 
strain on my credulity if I were to accept 
the truth of Lala Jagmohan Lai's version 
of his relationship with the firm. He 
admits that his father, brother and he 
constitute a joint Hindu family : they all 
live in one and the same house and mess 
together. He also admits that there has 
been no partition. My finding, therefore, 
is that he is a partner in the firm of Baldeo 
Das and Balgobind. 

The third charge relates to the over- 
draft of Rs. 4,303-5-6 allowed to Messrs. 
Labanti & Co., Limited. On the statement 
of Mr. E. A. Labanti in the witness-box it is 
quite clear to me that the loan advanced by 
the Bank to Messrs. Labanti & Co., was 
settled by a cheque issued by Mr Labanti 
on his separate account with the Bank and 
the subsequent entry in the books of the 
Bank as against Messrs. Labanti & Co., 
was due to the mistake that some cheques 
issued by Mr. Labanti on his personal 
account were thrown into the account of the 
Company. At the hearing no argument 
was addressed to me as regards this over- 
draft. This charge, therefore, fails alto- 
gether. 

I now proceed to record my conclusions of 
facts as regards the two charges of over- 
drafts allowed to Mr. E. A. Labanti k dis- 
cussed in the preceding portions of 'this 
judgment. Mr. Labanti's letter dated the 
14th July 1921 clearly contained an offer 
of a mortgage of the Labanti buildings in 
consideration of a loan of Rs. 1,50,000 to be 
advanced by the Bank. Though there is no 
clear record of a formal acceptance of the 
said offer by the Bank but from the conduct 
of the parties concerned it is amply mani- 
fest to me that the offer was accepted by 



the Board of Directors as a whole. Thus 
there was a complete contract between 
Mr. Labanti and the Directors of the Bank 
in respect of the transaction of the loan of 
Rs. 1,50,000 by the Bank to Mr. Labanti in 
consideration of Mr. Labanti giving a 
mortgage of the Labanti buildings as a 
security lor the loan. All the Directors of 
the Bank at the time when Mr. Labanti 
opened the negotiations were a party to this 
contract. Indeed the advances were made 
to Mr. Labanti even previous to the offer 
and I hold that they were made with the 
consent of all the Directors then on the Board 
in anticipation of the contract. I further 
hold that all the subsequent advances which 
constitute the two series of over-drafts 
under consideration were made within the 
knowledge of the Board of Directors as it 
stood from time to time and the contract 
mentioned above was accepted by the 
Board as sufficient security for the advances. 
The Directors were all along confident, and 
they had no reason to be otherwise, that 
Mr. Labanti would perform his part of the 
contract by executing the promised mort- 
gage. The confidence thus reposed was 
abused and the mortgage was never execut- 
ed. The substance of the charge against 
the Directors is, therefore, Jhis that they 
allowed the advances to be made to Mr. 
Labanti on the strength of his promise to 
execute the mortgage instead of the mort- 
gage itself. 

;i|hThe Bank Company was formed and form- 
ally incorporated without any Articles of 
Association. Thus there were no limitations 
to and restrictions on the powers of the 
Directors beyond what may arise out of their 
duties imposed generally by the law appli- 
cable to the case. It follows that lending 
money on the security of the contract men- 
tioned above was not ultra vires of the 
Directors. It is quite clear that if Mr. Labanti 
had executed the mortgage which he had 
offered to do the present application could 
never have been filed. 

The foregoing conclusions and observa- 
tions naturally lead to the consideration of 
the law applicable to the subject in hand. 
It appears to me to be settled law that 
y'Facts which show imprudence in the exer- 
cise of powers conferred upon Directors 
will not subject them to personal responsi- 
bility, the imprudence must be so great and 
manifest as to amount to crassa negligentia, 
as for example, if they were cognizant of 
circumstances of such $ character, so plain, 



[92 1. 0. 1926] s. c. MITIA n 

so manifest, and so simple in operation, that 
no men with any ordinary degree of prudence 
acting on their own behalf, would have 
entered into such a transaction as they enter- 
ed into. But if they are authorised to do 
an act in itself imprudent, they are not to 
be held responsible for the consequences 
of doing it. Nor are they liable for mere 
errors of judgment. 11 This is a quotation 
from the Law of Banking by Heber Hart. 
Eeference is made therein to Overend Gurney 
& Co. v. Gibb (1), Hunt's case (2) and 
London Financial Association v. Kelk (3). I 
have read the reports of these cases and 
have found that they fully support the view 
expressed in the quotation given above. The 
principle was again stated by Lindley, M. K. 
in the case of Lagunas Nitrate Company v. 
Lagunas Syndicate (4) in these words : 

"The third principle is that the Directors 
of a Company acting within their powers, 
and with reasonable care, and honestly in 
the interest of the Company, are not per- 
sonally liable for losses which the Company 
may suffer by reason of their mistakes or 
errors of judgment". lu the recent case of 
In re City Equitable Fire Insurance Com- 
pany Limited (5), Homer, J., in an exhaustive 
judgment if I may respectfully say so, ex- 
pounded the law bearing on the subject 
under consideration. It will be sufficient to 
quote from the head-note of the report : 

"In discharging those duties a Director (a) 
must act honestly, and (b) must exercise 
such degree of skill and diligence as would 
amount to the reasonable care which an 
ordinary man might be expected to take, 
n the circumstances, on his own behalf. 
But, (c) he need not exhibit in the perform- 
ance of his duties a greater degree of skill 
than '^nay reasonably be expected from a 
person of his knowledge and experience, 
in other words, he is not liable for mere 
errors of judgment; (d) h3 is not bound to 
give continuous attention to the affairs of 
his Company; his duties are of an intermit- 
tent nature to be performed at periodical 
Board meetings, and at meetings of any com- 
mittee to which he is appointed, and though 
not bound to attend all such meetings he 
ought to attend them when reasonably able 
to do so; and (e) in respect of all duties 

(1) (1872) 5 E. & A. App. Gas 480J42 L. J. Oh. 67. 

(2) (1668) 37 L. J, Oh, 278; 16 W. K. 472. 

(3) (1884) 26 Oh. D. 107, 53 L. J. Oh. 1025; 50 L. 
T. 492. 

(4) (1899) 2 Oh. 392, at p 422 68 L. J, Oh, 099; 48 
W. R. 74; 81 L. T, 334; 15 T. L. R. 436, 

(5) (1925) 1 Cht. 407, 



NAWAB ALI KHAN. 



57 



which having regard to the exigencies of 
business and the Articles of Association, may 
properly be left to some other official, he is, 
in the absence of grounds for suspicion, 
justified in trusting that official to perform 
such duties honestly." 

By applying the law enunciated in the 
preceding paragraph to the conclusions 
of fact already stated I must hold that the 
liquidator's application in respect of the 
charges in the matter of over- drafts to Mr. 
Labanti fails as against the Directors as a 
body. 

There is, however, one aspect of the case 
arising out of the charge in relation to the 
over-drafts mentioned above which requires 
special consideration, we have seen that 
amongst the creditors of Mr. Labanti who 
accepted fixed deposit receipts from the 
Bank in lieu of their claims against him was 
Mr. Jang Bahadur Sinha. It is admitted 
that on the dates on which he accepted 
those receipts he was one of the Directors 
of the Company. It is also admitted that 
he cashed three of those receipts out of the 
funds of the Bank. The aggregate amount 
of the money which he thus received was 
the sum of Ks. 7,844-5-3. Obviously he can- 
not be allowed to retain this money to the 
detriment of the share-holders and the 
creditors of the Company. In Alexander v. 
Automatic Telephone Company (6), Lindley, 
M R. said; 

"The Court of Chancery has always exacted 
from Directors the observance of good faith 
towards their share-holders and towards 
those who take shares from the Company 
and become co-adventurers with themselves 
and others who may join them. The maxim 
"caveat emptor" has no application to such 
cases and Directors who so use their powers 
as to obtain benefits for themselves at the 
expense of the share-holders, without in- 
forming them of the fact, cannot retain 
those benefits and must account for them 
to the Company, so that all the share-holders 
may participate in them. Gilbert's case (7) 
is only one of many instances illustrating 
this principle. 11 

Mr. Jang Bahadur Sinha has argued that 
he was not a Director of the Company when 
he cashed two of the three fixed deposit 
receipts on the 7th January 1922 and the 
2nd May 1922 and consequently he is not 
liable for the sums received by him on those 

(6) (1900) 2 Oh. 56, 69 L. J. Oh. 428, 48 W. R. 546; 
82 L. T. 400; 16 T. L. K 339. 

(7) (1870) 5 Oh. 559; 18 W. R. 938, 



VITHOBA V, SADASHEO. 



two dates. But he was a Director from the 
beginning up to the 12th August 1921 when 
he was also a Managing Director. He was 
again a Director from the 4th October 1922 
to the 14th March 1923. He thus stood in a 
fiduciary relationship to the Bank when he 
took the fixed deposit receipts from the 
Bank. The fact that he was not a Director 
on the 7th January 1922 and the 2nd May 
1922 did not relieve him of the obligations 
which arose out of his fiduciary relation- 
ship with the Company. The trust con- 
tinued see the observations of Lord Chan- 
cellor Eldon in the case of James Ex parte 
(8). Mr. Jang Bahadur Sinha must, therefore, 
pay back the sum of Rs.7,844-5-3 to the liqui- 
dator. 

It now remains to dispose of the charge 
relating to the over-draft allowed to the 
Upper India Investment Limited. The 
question of this over- draft does not seem 
to have been ever placed before the meeting 
of the Director. There is no trace of it in 
any record of ithe Company. The books of 
the Bank merely show that such an over- 
draft was made. Knowledge of it is not 
brought home to the Directors as a body. 
On the principles already stated, I can- 
not hold them personally liable for this over- 
draft transaction. 

The case as against Lala Jagmohan Lai, 
however, in relation to this charge stands 
on a different footing. We have seen that 
Lala Jagmohan Lai was the Managing 
Director of the Bank during the whole of 
the period when the over-draft was allowed. 
His duties were, therefore, of a higher 
standard than of an ordinary Director. There 
is a circumstance in this case which induces 
me to hold that Lala Jagmohan Lai was 
guilty of breach of trust in the matter of 
this over-draft. In allowing it he was clear- 
ly impelled by motives of personal gain. 
That circumstance, as already adverted to, 
is that his brother, Balgobind, with whom, 
according to my finding Lala Jagmohan 
Lai is joint in business, was one of the 
Directors of the Upper India Investment. 
Lala Jagmohan Lai allowed, in my opinion, 
this over-draft to be made to the Upper 
India Investment for the reason that his 
brother was a Director of that Company and 
dishonestly concealed the transaction from 
the Directors of the Bank. I entirely reject 
his evidence that he had no knowledge of 
the transaction. I, therefore, hold that Lala 

18) (1803) 7 K. B, 56 at p. 67; 8 Ves, Jun. 337; 32 

j$. R. 385, 



[92 1. 0. 1926J 

Jagmohan Lai is liable to compensate the 
Bank for the loss which the Bank has suffer- 
ed in consequence of this over-draft. 

The plea of limitation was raised by 
Thakur Navvab Ali Khan. The liquidator's 
application as against Thakur Nawab AH 
Khan has been rejected by me on merits. 
It is, therefore not, necessary to decide the 
plea of limitation. 

The result is that on the agreement of the 
parties L order that Mr. L. A. Labanti shall 
pay the sum of Rs. 76,593-15-4 with inter- 
est at 6 per cent, per annum from this date 
till the date of payment to the liquidator. 
I also order Mr. Jang Bahadur Sinha to 
pay to the liquidator the sum of Rs. 7,844-5-3 
with interest at 6 per cent, per annum from 
this date till the date of payment and also 
proportionate costs. I further order that Lala 
Jagmohan Lai shall pay to the liquidator 
the sum of Rs. 28,927-5-0 with interest at 6 
per cent, per annum from this date till the 
date of payment and also proportionate costs. 

(October 13, 1925). In the interests of 
justice and with the consent of Mr. Roy, 
Pleader for the liquidator, I direct that the 
payments under this decree shall first be 
made in Court and the liquidator shall be 
entitled to recover them on furnishing 
security to the satisfaction of the Court. 
This direction shall be incorporated in the 
decree. 

z. K, Application allowed. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

SECOND CIVIL APPEAL No. 178-B OP 1924. 

July 11, 1825. 

Present: Mr. Findlay, Officiating J. C. 
VITHOBA PLAINTIFF APPELLANT 

versus 
SADASHEO DEFENDANT RESPONDENT, 

Construction of Statute --Principles applicable- -C. P. 
Tenancy Act (XI of 1808), s 1^7 "Held land contimt- 
usly^ meaning ofForcible dispossession of tenant 
by landlm^d A/o acquiescence by tenant Tenancy 
whether determined 

It is an elementary principle of interpretation that 
the plain intention of the Legislature as expressed 
by the language employed is to be accepted and 
given effect to [p 59, col 2.J 

If the language admits of more than one construc- 
tion, the meaning is to be sought not in the wide 
sea of speculation and surmise but from such con- 
jectures as are drawn from the words alone or some- 
thing contained in them [ibid.] 

Rerigate Rural District Council v. Sutton District 
Water Co., (1908) 99 L. T, W8; 7g J. J>. 301; 6 L. G, 
R.936, followed, 



[92 1. 0. 1926] 

The words "held land continuously" as used in 
s. 47 of the 0. P. Tenancy Act of 1898 imply "held as a 
tenant," but not necessarily "occupied or cultivated/ 1 
The requirement of s. 47 is not actual continuous 
possession as a matter of fact but continuously hold- 
ing as a tenant, [p. 60, col. l.J 

If a tenant is ejected under a decree of a Court, 
there is a lawful ejectment and clear break in the 
tenancy, but the mere fact of a forcible or unlawful 
ejectment does not necessarily break the tenancy 
although the tenant may have been temporarily out 
of possession, [ibid.] 

The mere ejectment of a tenant does not necessarily 
determine his tenancy which can only be ended in 
certain express ways, suoh as those enunciated in s. 
Ill of the Transfer of Property Act. [p. 60, col 2.1 

Rudrappa v. Narsingrao, 29 B. 213; 7 Bom L. R. 
12 and Sofaoll Khan v. Woopean Khan, 9 W. R. 123, 
followed. 

A forcible ejectment of a tenant by the landlord 
cannot determine the tenancy unless there has been 
a subsequent acquiescence in the ejectment on the 
part of the tenant, [p. 60, col. 1.] 

Appeal against a decree of the Addi- 
tional District Judge, Amroati, dated the 
17th March 1924, in Civil Appeal No. 145 of 
1923. 

Sir H. S. Gour, for the Appellant. 

Sir B. K. Bose and Mr. M. R. Bobde, for 
the Respondent. 

JUDGMENT. The plaintiff-appel- 
lant Vithoba came to Court alleging that he 
was a tenant of five fields in Mouza Inzasan 
(Yeotmal), from which he had been illegal- 
ly ejected by his landlord (defendant JSo. 
1), the Izardar of the village. He claimed 
that under s. 47 of the Berar Alienated 
Villages Tenancy Law, 1921, he was a per- 
manent tenant and consequently came to 
Court praying for a declaration to this 
effect and for a decree putting him in pos- 
session. 

The first Court held that the suit was 
not maintainable, the plaintiff having been 
put out of possession on the 1st of January 
1922 when the said law came into force. 
The lower Appellate Court also dismissed 
the present appellant's appeal on the view 
a perfectly correct one that s. 74 could not 
apply to the case as the ejectment had 
taken place before the law in question 
came into force. Similarly, from the other 
points of view the Additional District Judge 
held that as the plaintiff was not a tenant at 
the commencement of the law within the 
meaning of s. 47 (1), his suit was bound to 
fail. 

The question involved in this second 
appeal is not free from difficulty. There 
can be no doubt but that if the view taken 
by the two lower Courts be correct, a most 
anomalous state of matters would arise, 



VITHOBA V. SADA8HBO. 



59 



The appeal, I may say, has been argued 
practically on the basis that the surrender 
has not been proved and that there was, in 
fact, an improper ejectment by the land- 
lord about the 25th of May iy2L Even so, 
the contention offered on behalf of the re- 
spondents (defendants) has been that for 
the plaintiff to be declared a permanent 
tenant under s. 47 two conditions have to 
be fulfilled, w>., 

(1) that he was holding the land when 
the law came into force on the 1st of 
January 1922, and 

(2) that his possession went back to before 
the 1st of June 1895. 

Admittedly, the second condition has 
been fulfilled, but the case for the respond- 
ents has been that as the plaintiff was 
ejected on the 25th of May 1921, he cannot 
be said to have been holding the land on 
the date the Berar Alienated Tenancy Law 
of 1921 came into force. 

As pointed out above, a curious and 
anomalous state of matters would arise if 
the respondents' contention in this case 
were correct. There can be little doubt, 
in my opinion, but that the intention of the 
f earners of this piece of legislation was to 
protect precisely such cases as the present 
one. The law, no doubt, went further 
than that, because s. 75 provided even for 
the re-instatement of a tenant who had been 
ejected on or after the 1st of January 
1916 under adecree ororder of a Civil Court. 
It would be curious indeed if the intention 
of the Legislature had been to interfere even 
in the latter case but to refrain from inter- 
fering in the case of an illegal ejectment 
by the landlord himself on the date prior 
to the law coming into force but after the 
first day of January 1916. Whatever the 
intention of the Legislature may have been, 
however, in this connection the question I 
have to decide is whether on a reasonable 
construction of s. 47 the plaintiff can fall 
thereunder. It is an elementary principle 
of interpretation that the plain intention 
of the Legislature as expressed by the 
language employed is to be accepted and 
given effect to. If it admits of more than 
one construction the meaning is to be sought 
not in the wide sea of speculation and 
surmise but from such conjectures as are 
drawn from the words alone or something 
contained in them : Rerigate Rural District 
Council v. Button District Water Co. (1). 

(1) (1908) 99 L. T. 168; 12 J. P. 301; 6 L. G, R. 



60 



V1THOBA V. 8ADASHEO. 



Turning to 8. 47, the phraseology at once 
strikes one as significant, the essential 
words used being: "A tenant, . . . who, 
at the commencement of this law, has 
either by himself . held land continuous- 
ly from a date previous to the first day of 
June 1895,". The decision of this appeal 
really depends on the construction to be 
put on the words "has held land". It is 
significant that the terminology employed 
is not occupied or cultivated: c/. 4 in this 
connection ss. 8, 9 and 11 of the Agra 
Tenancy Act, and c/. Agarwala's Agra 
Tenancy Act at page 63 ' The phrase, to 
my mind, used in the Act seems to imply 
"has held as a tenant but is not necessarily 
occupying or cultivating/' As I read s. 47, 
the requirement thereof is not actual con- 
tinuous possession as a matter of fact, but 
continuously holding as a tenant. If a ten- 
ant is ejected under a decree of a Civil 
Court, there is a lawful ejectment and a 
clear break in the tenancy. But on the 
other hand, the mere fact of a forcible or 
unlawful ejectment does not necessarily 
break the tenancy although the tenant may 
have been temporarily out of possession. 

Of course, if there were evidence that 
the tenant had acquiesced in his eject- 
ment or had failed to take steps to recover 
possession, then there would have been on 
his part an acquiescence in the ejectment. In 
the present case this cannot be predicated 
of the present plaintiff- appellant because 
it is clear from the evidence : c/. Ex. 
P-7, P-8 and P-9, that he had presumably 
in good faith, initially pursued a wrong 
remedy by application to the Revenue 
Officer under s. 74 (1), which clearly did not 
apply in the circumstances of the case. The 
application to the Revenue Officer was only 
finally disposed of on the 23rd of July 
1923 and meanwhile the plaintiff had filed 
the present suit on the 4th of April 192.'. 
There is not the slightest ground, therefore, 
for holding that there was any acquiescence 
on the part of the tenant in his ejectment. 
I may say that there had been, in fact, two 
applications to the Revenue Officers ; the 
first on 22nd November 1921 (c/. Ex. P-8) 
which was rejected on the 1st of June 1922 
while the final application to the Special 
Revenue Officer was dismissed, as already 
said, on the 23rd of July 1923 (c/. P-9). 

Looking at the question more general- 
ly, 1 am unable to see that, in the cir- 
cumstances of the present case, the tenancy 
can be said to have terminated. The 



[92 I. 0. 1926] 

mere ejectment of a tenant does not neces- 
sarily determine his tenancy which can 
only be ended in certain express ways : c/., 
in this connections, 111 of the Transfer 
of Property Act, and c/., also Rudrappa v. 
Narsingrao (2) and Sofaoll Khan v. Woo- 
pean Khan (3). The surrender in this case 
has not been proved and the fact that there 
was a forcible ejectment has practically 
been admitted. In such circumstances the 
landlord was guilty of trespass and such an 
act could not, in my opinion, determine the 
tenancy, unless there was any evidence of 
subsequent acquiescence therein on. the 
part of the plaintiff. In the present case, 
as I have shown, all the evidence is that 
the plaintiff has been having vigorous re- 
course to any and every relief which was, 
in his opinin, open to him. The present 
suit was filed within two years of the eject- 
ment (c/. P. 76 of the Law) and it was, 
therefore, within time. My reading of s. 47, 
sub-s. (1), therefore, is that the words "held 
land continuously 11 have been deliberately 
used as opposed to "cultivated or possess- 
ed 11 with the express intention that the 
section would still cover a case like the 
present, where there has been an illegal 
disturbance of possession, in which the 
tenant has not acquiesced. I am unable to 
see that the forcible dispossession, which oc- 
curred, necessarily determined the ^tenancy 
being in existence, I find that the plaint- 
iff appellant is entitled to be declared a 
permanent tenant of the fields in suit. 

The judgment and decree of the lower 
Appellate Court is, therefore, ^ reversed 
and in its place a decree will issue de- 
claring the plaintiff-appellant to be a 
permanent tenant of the fields in suit and 
ordering him to be put in possession there- 
of. The defendants-respondents will bear 
the plaintiff-appellant's costs as well as 
their own in all three Courts. 

N. H. Decree reversed. 

(2) 29 B. 213; 7 Bom. I,. E 12 

(3) 9 W. R 123. 



fltt I. 0. 19 

MADRAS HIGH COURT. 

SECOND CIVIL APPEALS Nos. 543 AND 1067 

OF 1922. 

March 24, 1925. 
Present: Mr. Justice Phillips. 

IN 8. A. No. 543 OF 1922. 

BANJOISI NARA8AMMA DEFENDANT 

APPELLANT 

versus 

BANJOISI SARASAMMAN AND ANOTHER 
DEFENDANTS RESPONDENTS. 

Civil Procedure Code (Act V of 1908}, 0. XXI, 
rr. 07, 98, 103- Specific Belief Act (I of 1877), s 9 
Decree fur possession - Execution of decree Obstruc- 
tion Order removing obstructionSuit to set aside 
order Limitation Partition suit- Practice Shares 
of all parties, determination of, whether necessary 

There is nothing in r 97 of O XXI of the C P C 
which prevents its beuiff applicable to a decree for 
possession passed under s 9 of the {Specific Kchcf 
Act. Such a decree does not purport to decide any 
question of title but it declares the plaintiff's posses- 
sory right and is a conclusive determination of that 
right. Where, therefore, obstruction is offered to the 
delivery of possession in execution of such a decree, 
an order removing the obstruction falls within the 
purview of r 98 of O. XXI, and is conclusive unless 
set aside in a suit brought in accordance with the 
provisions of r 103 of XXI [p 61, col 2; p. 62, c*ol. 1 ] 

Obiter dictum For the application of r. 97 of O 
XXI of the C P C. it is not necessary that the person 
making the obstruction should be physically present 
at the spot [p G2, col 1 ] 

Ordinarily in partition suits it is the practice to 
declare the shares of all the parties to the suit and 
to give a decree accordingly. This is to avoid multi- 
plicity of litigation, and that is the reason why all 
the sharers have to be made parties in such suits It 
is not, however, incumbent upon the Court in all 
circumstances to give a decree in favour of all the 
co-sharers in a partition suit [ibid } 

Where in a partition suit the plaintiff's claim to a 
specific share in the property in dispute is negatived, 
and there is no issue for determination of the shares 
of the defendants inter se, the shares of the defend- 
ants inter se should not be determined in the suit 
[p. 62, col. 2.] 

Second appeal against a decree of the 
District Court, Bellary, in A. S. No. 94 
of 1921, preferred against that of the Court 
of the District Munsif, Bellary, in 0. 8. 
No. 159 of 1920. 

Messrs. S. Doraswamy Iyer and A. Raghu- 
natha Rao, for the Appellant. 

Mr. B. Somayya, for the Respondents. 

JUDGMENT. 

IN S. A. No. 1067 OF 1922. 
The plaintiff and defendants Nos. 1 and 
2 are sisters, and plaintiff brings this 
suit to recover her one-third share in 
the suit house which has been found 
to belong originally to plaintiff's father. 
In 1918 the 1st defendant who appears 
to have been in possession of the suit 
house brought a suit under s, 9 of 



BANJOISI NARASAMMA V. BANJOISI SABA8AMMAN. 



61 



Specific Relief Act against her sister the 
2nd defendant. In executing the decree 
she obtained, obstruction was caused and 
she came into Court with an application 
under O. XXI, r. 97, C. P. C. in which the 
plaintiff and her alleged tenant were counter- 
petitioners. An enquiry was held and 
finally an order was passed in E. A. No. 599 
of 1918 which runs as follows : 

"The obstructor did not intervene in that 
suit. Now she has been evidently set up 
by her defeated sister. Remove obstruction 
arid deliver." The obstructor can only 
refer to the plaintiff, the second counter- 
petitioner, and by the use of the word "ob- 
structor" the District Munsif must be deem- 
ed to have found that she was the person 
who caused obstruction, otherwise the word 
would be meaningless. It would appear, 
therefore, from his order that he held that 
the plaintiff caused obstruction and he 
passed an order which would appear to be 
under O. XXI, r. 98. As the plaintiff has 
failed to bring her suit within one year 
from the date of that order, the lower Ap- 
pellate Court has dismissed it as barred by 
limitation. 

In appeal it is urged that the order 
directing removal of obstruction was not 
passed, under O. XXI, r. 98 because the 
plaintiff did not actually obstruct but ob- 
structed through her tenant who was the 
first counter-petitioner in the application. 
There is no evidence to support the conten- 
tion. I think in the face of the order 
defining the plaintiff as the obstructor, it is 
unnecessary to consider that question here. 

It was then contended that the order 
could not have been passed under O. XXI, 
r. i)8 because the decree passed under s. 9 
of the Specific Relief Act is not a decree for 
possession within the meaning of r. 97. Reli- 
ance is placed upon an old case Gobind Chun- 
der Bagdee v. Gobind Ghose Mundul (1) but 
that case was not one under the Specific Re- 
lief Act nor under the present C. P. C. I can 
see nothing in the rule (r. 97) which pre- 
vents its being applicable to a decree for 
possession under the Specific Relief Act. 
That decree for possession undoubtedly 
declared the plaintiff's possessory right. It 
did not purport to decide the title, but it 
confirmed the lesser right in the plaintiff 
and it was a conclusive determination of 
that right. I see no reason why O. XXI, 
should not be applied in this case. Conse- 

(l) 7 W. R, 171, 



8HEOSAHA1 V. RAMK118HNA. 



quently it must be held that the order of the 
District Munsif was passed under r. 98 and, 
therefore, the plaintiff's present suit is bar- 
red by limitation. 

There are observations in Mancharam v. 
Fakirchand (2) and in T. C. Bose v. R. 0. 
Chowdury (3) which go to show that 
the person obstructing under O. XXI, 
r. 97 must be physically present on the 
spot. In neither of the cases was this 
observation necessary for the determina- 
tion of the suit, and in one case there was 
a conflict of opinion. Reading 0. XXI, 
rr. 97 and 98, etc., we find no reference to the 
present obstructor, but only reference to the 
person obstructing or resisting execution. 
With ail respect, therefore, if those two 
cases intended to lay down that 0. XXI, 
r. 97 is inapplicable to a case in which the 
obstructor was not actually present, I think 
it goes too far but, in view of the finding 
in this case that the plaintiff did obstruct, 
it is not really necessary to determine the 
question. 

The plaintiff's appeal (8. A. No. 1067 of 
1922), therefore fails and is dismissed with 
costs of the first defendant. 

T C. Bose v. 0. R. Chowdury (3). 
IN 8. A. No. 543 OF 1922. 

The first defendant also filed an appeal 
against the portion of the decree which 
declares that the second defendant is 
entitled to one-third share in the suit pro- 
perty. Ordinarily in partition suits, it is 
the practice to declare the shares of all the 
parties to the suit and to give a decree 
accordingly. This is to avoid multiplicity 
of litigation and that is the reason why all 
the sharers have to be made parties in such 
suits, but I do not think that it is laid 
anywhere that in all circumstances must a 
decree be given in favour of all the co- 
sharers. Ashidbhai v. Abdulla (4) is a clear 
authority to the contrary ; but reliance is 
placed on a decision of this Court in 
Second Appeal No. 1493 of 1920. The point 
was not really considered in that case but 
the suit was remanded for fresh disposal 
on the ground that the parties to the suit 
were entitled to obtain their shares although 
they were not members of a joint Hindu 
family. The question whether the circum- 
stances must justify a refusal of such 
relief to the defendant was not considered 

(2) 25 B. 478; 3 Bom. L. R 58 

(3) 82 Ind. Gas 865; (1924) A. I. R. (R.) 261; 3 Bur. 
KJ. 71. 

(4^1 31 B. 271; 8 Bom. L. R. 758. 



[92 L 0. 1926] 

at all. In the present case the plaintiffs 
claim to one-third share has been dis- 
missed and apparently therearenow only two 
other sharers entitled to the property and it 
is not clear what the respective shares are. 
The second defendant in filing a written 
statement only claimed one-third share 
on the assumption that one-third of the 
property would be allotted to the plaintiff. 
That not having been done, the right of 
the other two sharers may be altered. I 
think therefore that there should be no 
decision of this question in this suit because 
the question has not been put in issue and 
there has been no determination of the 
share of the two remaining sisters. I 
would, therefore, allow the appeal and set 
aside that portion of the decree leaving the 
second defendant to establish her right by 
a fresh suit if so desired. 

In the circumstances I make no order as 
to costs in this appeal (Second Appeal 
No. 543 of 1922). 

v. N. v. Appeal allowed, 

z. K. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

SECOND CIVIL APPEAL No. 2 OP 1925. 

October 2, 1925. 

Present : Mr. Hallifax, A. J. 0. 
SHEOSAHAI PLAINTIFF APPELLANT 

versus 

RAMKRI8HNA AND ANOTHER 
DEFENDANTS RESPONDENTS. 

Partition Reference to arbitration Parties, joint 
possession of Prayer for leaving out portion of pro- 
perty, effect of C. P Tenancy Act (I of 1920), ss 2 
(11), &, Sch. 17, Art. 1 Absolute occupancy tenant 
Suit for possessionLimitation. 

A reference to arbitration for partition of property 
amounts to letting in of all parties to joint posses- 
sion of the property to be partitioned. 

A pleading in a reference to arbitration for parti- 
tion that a certain part of the property must, 
because of a previous decision or for any other reason, 
be allotted to one share or the other, or must be left 
out of consideration in the division, can scarcely be 
called a withdrawal of that part of the property from 
the scope of the arbitration. At the most it is an 
attempt to withdraw that property from the scope of 
the arbitration, that is to say, an admission that it 
is included in it. 

06 iter. Section 2 (11) and s. 4 of the 0. P. Tenancy 
Act of 1920 make it clear that the word "tenant" in 
Art. 1 of Sch. II does include an absolute occupancy 
tenant and the limitation for a suit by such a tenant 
for possession of his holding is two years and not 
twelve years from the date of such, dispossession or 
exclusion from possession, 



prov- 
Shio- 



[92 I. 0. 1926] 

Appeal against a decree of the Additional 
District Judge, Bilaspur, dated the 25th 
September 1924, in Civil Appeal No. 105 of 
1924. 

Mr. M. R. Bobde, for the Appellant. 

Mr. G. R. Deo, for the Respondents. 

JUDGMENT. It has been held 
ed in the lower Appellate Court that 
shankar joined in referring the dispute in 
regard to the division of the family property 
to the Mahasabha in 1921. That was a 
letting in of the plaintiff Shiosahai to joint 
possession of all the property to be divided, 
which joint possession continued at least 
till the delegates of the Mahasabha made 
their award on the 3rd of February 1922. 

The award has been held to be invalid 
for various reasons, but that does not matter. 
While the arbitrators were deliberating 
with the consent of Shioshankar about 
what portion of certain property was to be 
allotted to Shiosahai and what was nut, 
Shiosahai cannot be said to have been ex- 
cluded from possession of any part of that 
property, because Shioshankar was admit- 
ting all along that that part of it might be 
allotted to him. As the award was given 
on the 3rd of February 1922 and Shiosahai 
filed his suit on the 1st of September 1923 
well within two years, it cannot be held 
barred by time under Art. 1 of Sch. II of the 
Tenancy Act, 1920, unless the particular piece 
of property in dispute, the absolute occu- 
pancy holding, can be shown to have been ex- 
cluded from the property with whirh the 
delegates of the Mahasabha had to deal 

The only evidence of its exclusion, 
which it was for the plaintiffs to prove, is 
to be found in a written pleading put in 
by Shioshankar before the arbitrators on 
the 30th of May 1921 in which he urged that 
the matter of these fields and of some mango 
trees and a certain house had already been 
decided (tasfiya ho chuka hai), though the 
matter of certain other fields had not. A 
pleading in a partition suit that, a certain 
part of the property must, because cf a 
previous decision or for any other reason, 
be allotted to one share or the other, or 
must be left out of consideration in the 
division, can scarcely be called a withdrawal 
of that part of the property from the scope 
of the suit, At the most it is an attempt to 
withdraw that property from the scope of 
the suit, that is to say, an admission that it 
is included in it. 

It is further pleaded that the suit is 
within time for the reason that the word 



NAUNlHAL SINGS V. ALtCE GEORGINA SKINNER. 



tenant in Art 1 of Sch. II of the Tenancy 
Act, 1920 does not include an absolute 
occupancy tenant, and that the limitation 
for a suit by such a tenant for possession 
of his holding is twelve years. In view of 
the ruling in Ragho v. Sadoo (1) which on 
all points except that of limitation is con- 
firmed by the Tenaacy Act of 1920, lam 
strongly inclined to the opinion that it was 
the intention of the Legislature to make the 
limitation for a suit by an absolute occu- 
pancy tenant twelve years. But it is 
beyond doubt that if that intention existed 
it has not been expressed in the Act. Sec- 
tion 2 (11) and s. 4 of that Act make it clear 
that the word tenant in Art. 1 of Sch. II 
does include an absolute occupancy tenant. 
The question does not, however, arise, as the 
suit was brought within two years of the 
exclusion from possession. 

The decree of the lower Appellate Court 
must be set aside and that of the first 
Court restored. That, however, would entail 
the making of a fresh division of these 
fields, which was done in 1922. The parties 
have agreed, therefore, that that partition of 
1922 shall hold good and each party shall 
take the half then allotted to it. The decree 
will accordingly order that the defendants 
are to hand over to the plaintiff the half of 
the fields in dispute that was allotted to his 
share in 1922, in the arbitration that began 
in 1921. All the plaintiffs costs in all three 
Courts will be paid by the defendants. The 
Pleader's fee in this Court will be fifty 
rupees. Decree set aside. 

N. H. 

(1) 5 Iiid. Cas. 428; 6 N. L R. 6 



ALLAHABAD HIGH COURT. 

FIKST CIVIL APPEALS Nos. 86 AND 494 OF 1922. 

March 27, 1925. 
Present : Mr. Justice Lindsay and 

Mr. Justice Kanhaiya Lai. 
NAUN1HAL SINGH AND OTHERS 
DEFENDANTS APPELLANTS 

versus 

ALICE QEORGINA SKINNER AND 
ANOTHER PLAINTIFFS RBSPONDENTS. 

Limitation Act (IX of W08) t Sch. 7, Arts. 131>, 1^0 t 
11$ Adverse possession during tenure of life~tena,nt 



NAUtflHAL SltoGH V. ALICE GEO&GINA SKINNER. [92 I. 0. 1926] 



Remainderman, whether affected Mortgage Trans- 
fer by mortgagee Redemption suit by remainderman 

Limitation. 

Article 134 of S-jh, I to the Limitation Act deals 
with transfers of property which has been mortgaged. 
The Article does not specifically require that the 
property should have been mortgaged with posses- 
sion The suits referred to in the Article being, 
however, suits for possession, it must be assumed that 
when suck a suit is brought the defendant transferee 
is in possession Therefore, the transfer which he 
has taken must have been one which placed him in 
possession and consequently where the transferor is 
a mortgagee he must have been in possession of the 
mortgaged property at the time he made the transfer 
It is not, however, necessary that the possession 
which the transferor had at the time of the transfer 
must have been acquired under the mortgage origin- 
ally made in his favour Kven if the mortgage was 
a simple mortgage and the mortgagee subsequently 
gets possession of the mortgaged property otherwise, 
as for example, by purchase in execution of a simple 
money-decree obtained u gainst the mortgagor by 
another creditor, the Article will still apply if it is 
established that at the time the transfer is made the 
mortgagee was in possession, no matter under what 
title. The Article is designed for the protection of a 
transferee who has been led by a moitgagec to believe 
that he is acquiring not merely mortgagee rights but 
a full proprietary title [p 6S, col 2; p 69, col. 1 ] 

No act of a life-tenant can bo binding upon the 
remainderman who does not claim, under the life- 
tenant but under an independent title (p 71, col. 2 i 

Per Kanhaiya Lai, J Under Art. 140 of Sch. I, 
to the Limitation Act, a remainderman or devise* 3 can 
sue for possession of immoveablc property devised to 
him within twelve years from the d?te when his estate 
falls into possession [p 73, col 1 ] 

Once a person enters into possession of property as 
a tenant for life he cannot hold adversely to the re- 
mainderman Similarly adverse possession for any 
length of time against a tenant for life is ineffectual 
against the reversioner or remainderman whose right 
to possession only accrues on the death of the tenant 
for life, [ibid] 

Article 134 of Sch. 1 to the Limitation Act allows 
only a period of 12 years for a suit to recover posses- 
sion of immoveable property mortgaged and sub- 
sequently transferred by the mortgagee for a valuable 
consideration to be computed from the date of such 
transfer. It applies to cases where the mortgagee 
purports to transfer what he is not competent to 
alienate, that is an interest greater than that of a 
mortgagee, and it presupposes a mortgage with pos- 
session or followed by possession as a necessary in- 
cident or ingredient of it because a mortgagee who 
is not in possession cannot transfer possession to 
another or give what he does not possess. If the 
mortgagee acquires possession in some other capacity, 
the transfer of possession will be deemed to have been 
made in the capacity in which it was (rightly or 
wrongly) acquired and such acquisition cannot be 
attributed to the mortgage, where the mortgage itself 
is a simple mortgage or a mortgage not entitling the 
mortgagee to possession by virtue of its incidents or 
terms [p 73, cols. 1 & 2.] 

The object of Art. 134 is to protect transferees for 
value who have purchased an interest larger than that 
possessed by the transferor and have been allowed to 
remain in possession and enjoyment of such larger 
interest for a period of more than 12 years. In the 
matter of mortgaged properties so transferred, it con- 



trols Art. 148 in the same way as it controls Art. 140 
If the mortgaged property is in the possession, not o 
the mortgagee, but in that of a transferee from him 
who claims to have purchased a larger interest therein 
for consideration, then neither Art. 148 nor Art. 140 
of Sch. I to the Limitation Act will enable the mort- 
gagor or a reversioner or a remainderman to redeem 
the property after tho possession of the transferee has 
lasted for more than 12 years. A remainderman who 
sues for the redemption of a mortgage cannot escape 
the consequences which Art 134 prescribes, [p 74, 
col. 1 ] 

First appeals from a decision of the Sub- 
Judge, Muzaffarngar at Meerut, dated the 
20th of January 1923. 

Munshi Girdhari Lai Agarwala and 
MunshiBhagwatiShankar, for the Appellants. 

Messrs. 5. E. O'Connor, Nehal Chand, 
Babu La lit Mohan Banerjee and Pandit 
Naramadeshwar Prasad Upadhiya, for the 
Respondents. 

JUDGMENT. 

Lindsay, J. Both these appeals arise 
out of a suit for redemption brought by 
Alice Georgina Skinner in the Court of 
the Subordinate Judge. This lady died 
after the decision in the Court below and 
is now represented by her executor, Mr. 
J. R. R. Skinner. 

The suit was filed on the llth May 1920 
and the mortgage of which redemption was 
sought was .executed by the plaintiff's father 
Thomas Skinner, on the 1st September 
1863, to secure a loan of Rs. 50,000 which 
he took from a firm of money-lenders, 
Lakhmi Chand and Gobind Das, who were 
popularly known as the Seths of Muttra. 
Since the date of the mortgage the mort- 
gaged property has passed into the hands 
of many persons, the result being that the 
plaintiff found it necessary to implead over 
80 defendants. The learned Subordinate 
Judge has passed a preliminary decree for 
redemption, dated the 31st January 1923, by 
which he directs the plaintiff to pay, a sum 
of Rs. 1,09,641-11-8. 

The suit was not decreed in full, for the 
Subordinate Judge was of opinion that the 
plaintiff was not entitled to recover posses- 
sion of i . :.; ,:. one of the items of 
property mortgaged. And as regards an- 
other item named Daula Rajpura which at 
the time the suit was brought was in the 
possession of the Nawab of Pahasu, the Sub- 
ordinate Judge declared that the suit had 
abated. The Nawab died during the pend- 
ency of the suit and the plaintiff failed to 
make his legal representative a party to the 
suit within the time limited by law. 

In the Appeal No. 86 of 1924 the memo 



NAUNIHAL SINOH U, ALICE QEOROINA 8RINN&R. 



[92 1 0. 1926J 

Tandum of appeal contains the names of 
34 appellants but at the hearing only two of 
these have been represented before us, 
namely, Kunwar Naunihal Singh and Nawab 
Mukarram Ali Khan who is the successor- 
in-interest of the Nawab of Pahasu above 
mentioned. Mr. Girdhari Lai Agarwala 
has filed vahalatnamas which authorize 
him to appear on behalf of these two 
appellants, he has no authority to act for 
the other appellants and so in disposing 
of F. A. No. b6 of 1924 it is necessary to 
consider only the cases of these two 
persons. 

Mr. Girdhari Lai also represents the 
appellants in F. A. No. 494 of 1922 which 
has been heard along with F. A. No. 86 
of 1924. 

It may be mentioned here that the pe- 
culiar and irregular procedure adopted by 
the Subordinate Judge in disposing of 
the suit has created considerable embarrass- 
ment. 

On the 23rd of February 1922 after having 
disposed of the main issues in the case, he 
passed an order directing accounts to be 
taken in order to enable him to ascertain 
the sum payable by the plaintiff for redemp- 
tion of the mortgage. There could, of course, 
be no objection to his passing an interlocu- 
tory order for the taking of accounts but he 
embodied this order in the form of a 
decree which is printed at pages 35 et seq of 
the record. Subsequently, after Baking an 
account, he passed a preliminary decree 
for redemption on the 20th January 1923, 
(See pages 46 et seq of the record). The law 
does not contemplate procedure of this sort 
in a suit for redemption. The learned Sub- 
ordinate Judge seems to have thought he 
was dealing with a suit for account in which 
it was his duty to pass a preliminary decree 
in accordance with the provisions of O. XX, 
r. 13, of the C. P. C. but that was not so. 

This irregularity was brought to the 
notice of another Bench of this Court which 
decided that the two decrees drawn up in 
the Court below should be dealt with as if 
they constituted one decree only, namely, a 
preliminary decree for redemption, and ?o 
wo have treated these two appeals accord- 
ingly. 

I proceed now to mention the questions 
which arise here for decision in Appeal 
No. 86 of 1924 as between the plaintiff- re- 
spondent and the two appellants on -w hose 
behalf the appeal has been argued and I 
take up first the case of Kunwar Naunihal 
5 



65 



Hugh. This defendant, when the suit waa 
brought, waft in possession of five items of 
the mortgaged property which the plaintiff 
was seeking to recover. They are items Nps. 
1 to 5 in the Sch. A attached to the plaint 
and are called Gangola, Salehpur, Neknam- 
pur, Ghori Bachhera and Sunphera. 

The defences raised by Naunihal Singh 
were ; 

(1) that the plaintiff had no title to main- 
tain the suit for redemption ; 

(2) that these five villages had since the 
year 1872 been in the adverse possession 
of him and his predecessor-in-title ; 

(3) that he had purchased these villages 
in good faith and for a consideration of 
Us. 1,77,000 from the Nawab of Rampur and 
was protected by s. 41 of the Transfer of 
Property Act, and, further that in no case 
could the plaintiff recover possession, 
without payment of this purchase-money ; 

(4) that, in any event, the plaintiff was 
liable to pay the full sum due on the mort- 
gage in suit amounting to about 17 lakhs 
of rupees, and that the plaintiff was not 
entitled to demand any account of the profits 
for the period during which he (Naunihal 
Singh) was in possession. 

The Subordinate Judge held that the 
plaintiff had a good title to maintain the 
redemption suit. He held further that the 
suit was not barred by limitation as adverse 
possession could not run against the plaint- 
iff before the 1st December 1919 when the 
plaintiff's estate in the mortgaged property 
fell into possession on the death of the 
previous life-tenant. And, lastly, he found 
that Naunihal Singh was liable to submit 
to a decree for redemption after an account 
had been taken of the profits for the period 
during which the mortgagees or those who 
derived title from them had been in posses- 
sion of the property. 

Now in this Appeal No. 86 of 1924 three 
su' stantial points have been urguod on 
behalf of the appellant Naunihul Siugh. 
Oae of these relates to the title of Alice 
Qeorgina Skinner and her right to main- 
tain the suit. Another relates to the ques- 
tion of limitation which has been raised 
here in a new form. The third concerns the 
mortgage account, the argument being that 
it has not been properly calculated by the 
Court below. Before 1 proceed to discuss 
these matters it is necessary to say some- 
thing of the history of the Skinner family 
and of the Skinner estate which has been 
the subject of much litigation, A good 



V. ALICE QEORGINA 



'deal of that history will be found in the 
report of a case decided by their Lordships 
of the Privy Council in the year 1913. ^ See 
Richard Ross Skinner v. Naunihal Singh 
(1). Naunihal Singh, who was a party to 
that litigation, is the same gentleman 
who is one of the appellants in the present 
case. Thomas 8k inner, who was the owner 
of the mortgaged property now in suit and 
who made the mortgage of the 1st Septem- 
ber 1863 now sought to be redeemed, was 
the father of Alice Georgina Skinner, the 
present plaintiff. He died in November 1864 
leaving three sons and three dauirlitoi- By 
his Will, dated the 22nd Oci"hi LMli, he 
made certain dispositions of his estate 
which afterwards gave rise to a good deal 
of controversy. This Will was construed in 
the Privy Council case cited above, and to 
put the matter briefly, it was held that 
the effect of the Will was to create a suc- 
cession of life-estates in favour of the 
testator's three sons, and that in default of 
lawful male issue born to any of these sons, 
the estate was to go over to the daughters. 
The three sons of Thomas Skinner are 
all dead. The eldest of them, Thomas 
Brown Skinner, died on the 3rd July 1900, 
the second, Richard Ross Skinner, who was 
the plaintiff in the suit which came before 
the Privy Council in the case mentioned 
above, died on the 15th August 1913. The 
third son was George Corbyn Skinner who 
died on the 1st December 1919. On this 
Jatter date the only surviving daughter of 
Thomas Skinner was Alice Georgina who 
was the plaintiff in the present suit. Both 
the other sisters died in the lifetime of 
their brothers. Jt follows then that on the 
death of the third son, George Corbyn 
Skinner, the sole surviving sister, i. e. } 
Alice Georgina, acquired an absolute estate 
in the property of her father, Thomas Skin- 
ner, provided that on that date there were 
no legitimate male issue of any of the 
three brothers in existence. 

It has not been suggested that either of 
the two elder brothers left any such issue 
but it was pleaded by Naunihal Singh and 
some of the other defendants that George 
Corbyn Skinner left two legitimate sons 
still in existence in whose presence Alice 
Georgina could have no right to the estate. 
It was further pleaded by these same defend- 

(1) 19 Ind. Gas. 267; 35 A. 211; 40 I. A. 105; 11 A. L. 
J. 494; 25 M. L. J. Ill; (1913) M. W. N. 500; 13 M. L, 
T. 488; 17 0, L, J, 555; 15 Bom, L, R, 502; 17 C, W. N. 
653 (P. 0.). 



[92 1. 0. 1926] 

ants that Alice Georgina was not the 
daughter of Thomas Skinner. This latter 
plea, however, was easily disposed of and 
the Subordinate Judge had no difficulty 
in finding that the plaintiff was Thomas 
Skiiiner's daughter. This matter has not 
been argued before us. As regards the 
other plea it is admittedly the fact that 
there are in existence two sons of George 
Corbyn Skinner. The plaintiff's case is that 
they are illegitimate, and the Subordinate 
Judge found" that they were. We have 
heard arguments here relating to this point, 
and we agree with the Subordinate Judge. 
Some of the evidence led by the plaintiff 
upon this issue was of little value but there 
is the statement of a witne^^ Christopher, a 
missionary, who deposed that the 

two sons left by George Co er were 

born out of wedlock, ' knew 

George Corbyn Skinner 1 with 

him at the time these e ^a. His 

evidence appears to u j conclusive of 

the matter and it h ^c been rebutted. 
This part of the case is 'i i .-.:<ii!iifh at an 
end and agreeing with the C^un ^elow I 
find that Alice Georgina Skinner was the 
lawful owner of her father's estate at the 
time she brought the suit and was entitled 
to maintain the suit for redemption. 

The next question to be discussed is that 
of limitation. In the 17th ground taken in 
the memorandum of appeal the plea is 
raised that the suit is barred under Art. 
134 of the Schedule to the Limitation Act 
(IX of 1908) which provides a period 
of 12 years for a suit brought to recover 
possession of immoveable property which 
has been mortgaged and afterwards trans- 
fened by the mortgagee for valuable con- 
sideration. In cases to which the Article 
applies time begins to run from the date 
of the transfer, that is to say, the transfer, 
by the mortgagee. According to the case 
for Naunihal Singh he is such a transferee 
having in the year 1904 purchased the 
five villages which he claims, from the 
Nawab of Rampur fora sum of Rs. 1,77,000. 
It is stated that in the year previous 
(1903) the Nawab bought these properties 
from the Seths of Muttra, the representa- 
tives of the mortgagees who advanced the 
money under the deed of the 1st September 
1863, now in suit. It is to be observed 
here that this Article was not pleaded in 
the Court below. There the defence of 
limitation was raised upon the ground of 
adverse possession pure and simple, and was 



[92 I. 0. 1926] NtJNlHAL SINGH V. ALICE OEORGiNA SKINNER. 



rightly overruled by the Subordinate Judge 
on the ground (inter alia) that no adverse 
possession could begin to run against the 
plaintiff who was not entitled to possession 
before the 1st December, 1919, the date on 
which her last surviving brother, George 
Corbyn Skinner, died. 

The plaintiff .being a remainderman 
under her father's Will/was entitled to plead 
Art, 140 of the Schedule to the Limitation 
Act and to say that she had the right to 
sue for recovery of the estate at any time 
within 12 years from the date it fell into 
possession. The suit was filed less than six 
months after that date. The Subordinate 
Judge was never called upon to consider 
the terms of the Art. 134 and although 
it is true that a plea of limitation can be 
raised at any time, it was with some hesita- 
tion that I consented to its being raised 
here, on the ground that the appellant 
Naunihal Singh had not for the purposes of 
this appeal printed the necessary documents 
upon which he, relies for proof of the facts 
which he must establish in order to support 
the plea under Art. 134. However, as there 
could be no doubt as to those facts and as 
the necessary documents had been printed 
before in the case of Richard Ross Skinner 
v Naunihal Singh (1) which, as has been 
said, was decided by the Privy Council in 
the year 1913, we allowed the point to be 
argued. Those documents or some of them at 
any rate are referred to in their Lordships 1 
judgment, and I shall have occasion later on 
to draw attention to what was there said 
concerning them. 

1 shall now set out the facts and quote 
from the documents which are translated 
and printed in the paper-book of F. A. 
No. 127 of 1^07 Naunihal Singh v. Richard 
Ross Skinner. At page 1A of this 
book we have the mortgage- deed of the 1st 
September 1863, executed by Thomas 
Skinner. This is the mortgage of which 
redemption is now being sought. The 
deed is a hypothecation bond which recites 
that eighteen villages belonging to the 
mortgagor are being offered as security for 
a loan of Rs, 50,000. As a matter of fact 
only seventeen villages are named. The 
eighteenth which was probably Tiicnnt to be 
included in the security was Mauza Audhel, 
which was subsequently included in a 
later mortgage-deed presently to be men- 
tioned. By this deed of the 1st September 
1863 the mortgagor undertook to pay the 
mortgage debt in full, principal and inter- 



est, at the end of December 1863, and 
he covenanted that if he failed to dis 
charge the debt as stipulated, he would 
put the Seths (the mortgagees) in possession 
who would then be able to realize and 
apply the income of the mortgaged estate 
under their own superintendence and 
management. Thomas Skinner died to- 
wards the end of 1864, and, following the 
narrative of events in the Privy Council 
judgment above referred to, it appears 
that the Court of Wards took possession 
of the estate and held it till the year 1867 
when possession was handed over to the 
eldest son, Thomas Brown Skinner, who 
then proceeded to deal with the estate 
as if he were the absolute owner which he 
was not for reasons already stated. On 
the IQih November 18(57. Thomas Brown 
Skinner executed a mortgage for Rs. 50,000 
in favour of the tSeths. Out of this 
sum Rs. 43,291-14-3 were due on the 
mortgage of the 1st September 1863 execut- 
ed by hi3 father. The balance he took iu 
cash for the purpose of discharging certain 
debts which he owed. The same property was 
mortgaged as was described in the earlier 
deed the eighteen villages which were all 
mentioned by name and included Audhel, 
the village which had been omitted in the 
document of 1863. 

It ia important to notice the conditions of 
this mortgage for it was provided that 
the names of the mortgagees were to be 
entered in the revenue papers and it was 
further provided that the entire income of 
the mortgaged property was to be paid 
direct into the treasury of the mortgagees. 
It was declared that the mortgagees were 
to appoint a treasurer and two peons at the 
cost of the mortgagor and that the money 
which was collected from the villages was 
to be deposited with the treasurer without 
any diminution. Directions were then 
given regarding the application of the in- 
cQ'ne after it had been so received in 
deposit. After payment of Government re- 
venue, patwaris fees and the usual village 
expenses, the balance was to be applied iu 
payment of the interest on the mortgage- 
money, the salaries of the two peons and 
the treasurer appointed by the mortgagee 
and the salaries of the mortgagor's own 
servants and karindas. If any surplus re- 
mained after providing for these charges, 
it was to be applied in reduction of the 
principal sum. Another provision was that if 
any of the karindas of the mortgagor acted 



against the wishes of the moiitrncect. he 
"was to be dismissed on a complaint being 
made by the treasurer. It is not necessary 
to refer to any of the other terms of this 
document, but it will be observed that the 
result of the arrangements just mentioned 
tras to put the mortgagees in complete 
control of the revenues of the mortgaged 
estate as effectively as if they had been put 
in actual physical possession and it was no 
doubt for this reason that it was stated in 
the Privy Council judgment that this mort- 
gage of 1857 executed by Thomas Brown 
Skinner was a mortgage with possession. 
What their Lordships say with reference to 
this transaction is : 

"At that time there was due on the mort- 
gage for Rs. 50,000 granted by his father, 
Thomas Skinner, a sum of Rs, 43,000. The 
niorttfHEPo* were placed in possession by 
him (Thomas Brown Skinner), and he also 
himself borrowed further sums in that year, 
in 1869 and in 1872, and granted mortgages 
over the properties therefor. 

The next thing to be noticed is that on 
the 20th December 1872, Seth Lachman Das, 
who was then the representative of the mort- 
gagees purchased in execution of simple 
money decrees obtained by other creditors 
five of the villages which he held in mort- 
gage. The sale certificates are all printed 
in the paper- book of F. A, No. 127 of 1907, 

5!ifto.s IS A zt seq. Those five villages were 
_ ('L'l'-iMiiM! 1 . Ohori Bachhera, Sunpehra, 
Gangola and Salehpur. In the certificates 
the property acquired by purchase is the 
'''.;; iiT' :," :''s equity of redemption' 1 
in all five villages. The judgment-debtor 
was Thomas Brown Skinner. We hear 
nothing more of these properties until we 
come to the 2nth December 1898, on which 
date Seth Lachman Das made a mortgage in 
favour of the Nawab of Rampur to secure a 
defet of 15 lakhs of rupees. This was a 
mortgage with possession and among the 
items of property mortgaged were the 
five villages mentioned above. There can 
be no doubt that in . the mortgage-deed 
these villages were described by the Seth as 
"being his own property. He distinctly calls 
them his own andsa>s he is mortgaging 
them with ail the proprietary and zemin- 
dari rights, and in the schedule attach- 
ed to the mortgage he sets out the value 
of each village and says that all five are 
worth Rs. 1,78,100. That is obviously a 
valuation of the proprietary rights,. This 
document of mortgage is to be found at 



NAUNIHAL STNOH V. ALICE GEORCUNA SKINNER. [92 I. 0. 1926] 

page 17-R. of the paper-book of F. A. No. 127 
of 1907. 

Then we come to a document, dated the 
24th September IS 03, at page 29-R of the 
same record. This is a conveyance by the 
Seth of certain of the properties already 
- '.:..:< : to the Nawab. It seems that 
', ." : , oeing unable to keep down the 
interest on the mortgage- debt, determined 
to sell the property or most of it in satis- 
faction of the debt. The property conveyed 
included the five villages of which we have 
been speaking and so they passed to the 
Nawab of Rampnr, On the llth April 1904 
the Nawab conveyed these villages to 
Naunihal Singh for a sum of Rs. 1,77,000. 
The deed is printed at page 35-R of the 
printed record of F. A. No 127 of 1907 and 
in it the Nawab, after reciting the convey- 
ance made to him by the Seth, describes 
himself as the absolute owner These then 
are the facts upon which Naunihal Singh 
relies in support of his plea of limitation 
raised under Art. 134 and the question is 
whether he is entitled to the benefit of that 
Article, In my opinion he is. 

It has been argued before us that Art. 134 
cannot apply because the mortgage of 1863 
was not a mortgage with possession and 
because the mortgagees did not obtain pos* 
session under that mortgage but under the 
later and independent mortgage of 1867 
executed by Thomas Brown Skinner. Accord- 
ing to this argument Art. 134 must be 
so read as to mean that the property which 
has been mortgaged must have been, in the 
first instance, mortgaged with possession 
and that the transfer referred to must be a 
transfer made by a mortgagee who has 
acquired possession under the mortgage. I 
cannot construe the Article in this way. It 
deals with transfers of property which has 
"been mortgaged. The Article does not say 
"mortgaged with possession." I agree, of 
course, that the suits referred to in the 
Article being suits for possession, it must 
be assumed that when such a suit is brought 
the defendant-transferee is in possession. I 
also think it reasonable to hold that the 
transfer which he has taken must have been 
one which placed the transferee in posses- 
sion and that consequently where the trans- 
feror is a mortgagee he must have been 
in possession of the mortgaged property at 
the time he made the transfer, But I am 
not prepared to accept the argument that 
the possession which the transferor has at 
the time of the transfer must necessarily have 



1. 0. 1928] 



NAUNIHAI, SINGH V ALICE GEOKQINA SKINNED, 



been acquired under the mortgage original- - 
ly made in his favour, it seems to me that 
even if the mortgage was a simple mort- 
gage and if the mortgagee subsequently 
gets possession of the mortgaged property; 
otherwise, as for example, by purchase in 
execution of a simple money-decree obtain- 
ed by another creditor, the Article will still 
apply if it is established that at the time 
the transfer is made the mortgagee was 
in possession, no"! matter under what 
title. The Article is designed for the pro- 
tection of a transferee who has been led by 
a mortgagee to believe that he is acquir- 
ing not merely mortgagee rights but a full 
proprietary title. To quote the words of 
theirLordships of the Privy Council in Rada- 
nath Das v. Gisborne cfeOo. (2), in " n-i miner 
the ."ojf'i'i!" -o 'li-.si under the old Act XIV 
of ], H 1 1 "ir;r -..'i- r must mean some person 
who purchases that which is de facto a 
mortgage upon a representation made to 
him and in the full belief that it is not a 
mortgage but an absolute title.' 1 

If that is so, I fail to see why it should 
make any difference to the purchaser (now 
the transferee) whether the possession which 
his transferor has at the time of the trans- 
fer arose directly out of the mortgage or 
was, prior to the date of transfer, acquired 
in some other way. The possession is there 
and is the principal factor in determining 
the belief of the transferee that his trans- 
feror is giving him a full proprietary title. 
The transferor could not very well purport 
to confer such a title if he were not in 
actual possession I do not see why the 
transferee should be bound to inquire how 
that possession was obtained, for under the 
law as it now stands the transferee is not 
required to show bona fides, which was neces- 
sary under the law as it was when the case 
of Ridanath Doss v. Gisbornes Co. & (2) was 
decided. The alteration in the law appears 
to have been made advisedly in order to 
exclude ths notion that absence of notice 
of the real owner's claim was necessary to 
enable a purchaser to claim the protection 
of this Article, But I am told that this 
Court has decided in favour of the inter- 
pretation of Art;. 131 relied upon by the 
learned Counsel for the plaintiff-respodent, 
and I am referred to the Bench decision in 
the case of Ram Piari v. Budhaain (3). T 

|2) U M 1. A. 1; fi 15. L R. 530, 15 W R, P O 2i; 
2 Suth. P. 0. J. 397; 2 Sar P. G J. 636; 20 13. R. G87 
'(P. C \ 

(3; 61 Ind. Cas, 540; 43 A. 104; 18 A, L. J, 995; 2 U, 
P.L,B.(A.)83. 



cannot accept the argument. At page 107* 
of the report after referring to the purpose 
of Art 134, the learned Judges say that the 
transfer referred to in Art. 134 is a transfer 
with possession or followed by possession 
as a necessary incident or ingredient of it, 
and they cite another judgment of this 
Court in support of this observation: 
Husaini Khanctm v, Ilumin Khan (4). 
This observation is in my judgment no au- 
thority for the proposition now put forward. 
The "transfer" to which reference is made 
is obviously the transfer made by the mort- 
gagee, and, as f have already indicated, I 
agree that the mortgagee when he comes to 
make the transfer, must be in a position to 
hand over possession, which he cannot do 
unless he has got it himself. But the obser- 
vation cannot he deemed to embrace the 
transfer made to the mortgagee in the first 
instance and to mean that the mortgage must 
have been a mortgage with possession under 
which the mortgagee entered either at the 
time the mortgage was granted or subsequ- 
ently. 

But, apart from this, let us see how the 
matter stands in this case. How did the 
mortgagees, whose representative after wards 
sold to the Nawab of Ram pur, obtain pos- 
session of these five villages. 

It is said that they acquired it under the 
mortgage executed by Thomas Brown Skin- 
ner in 1867 and also under the purchases in 
execution made in the year 1872 and not 
under the mortgage of 1863 made by Tho- 
mas Skinner. 

I do not think this statement is borne out 
by the facts. I have already pointed out 
that in the deed of 1863 the mortgagor co- 
venanted to hand over possession in case he 
failed to discharge the entire mortgage- 
debt by the end of December of that year. 
There can be no doubt that the debt was not 
so discharged, forit io proved that in 1867, 
when Thomas Brown Skinner executed his 
m,):tg!iLV 4 there was still outstanding a 
sumfofKa. 43,UOOoddon the earlier mort- 
gage in respect of which the n,' i'ir.iLTc.s 
were entitled to take possession. Thomas 
Brown Skinner, to secure this debt and a 
further loan of Rs. 6,000 odd, makes the 
mortgage of the 10th November 1867 and 
places the mortgagees in complete control 
of the income of the mortgaged property, 
and I recall here what their Lordships of 

(4) 20 A 471; (1907) A. W. N. 133, 4 A. L, J. 375. 
~ H'ageof 43 A.-[0 rf 'l " ' 



70 



NAUNIHAL SINGH V. ALICE OEORQINA SKINNER, 



the Privy Council said regarding this arran- 
gement They said that the mortgagees 
were placed in possession by him (t. e,, 
Thomas Brown Skinner). If this is so, 
did the mortgagees take possession under 
the mortgage of 1863 or the mortgage of 
1867? That they were entitled to have pos- 
session under the earlier mortgage is clear. 
Is it to be said then that notwithstanding 
this the mortgagees' possession was acquired 
not under the earlier, but under the later 
mortgage, a transaction quite independent 
of the first ? That was evidently not the 
opinion of their Lordships of the Privy 
Council. At page 225 of the report in 
Richard Ross Skinner v. Naunihal Singh (1) 
they say 

u But the case, in their Lordships 1 view, 
stands in a very different position with re- 
gard to the rights of mortgagees and their 
successors under mortgages granted, not by 
the appellants' brother, but by the appel- 
lant's father, Thomas Skinner. With re- 
gard to the appellant's brother, it is derided 
by this judgment that the estate which he 
possessed was that of a tenant for life, 
and that mortgages proceeding in respect 
of debts incurred by him could not affect 
the estate beyond his life. Even if it be 
supposed that after he, Thomas Brown 
Skinner, came into possession he granted 
mortgages in renewal of those granted by his 
father and the outstanding rights of the 
mortgagees could not in justice or equity 
be prejudiced thereby. To do so would be 
to operate a substantial defeat of the rights 
of those mortgagees and to imply, what 
certainly never was the intention of any of 
the parties to the transaction, that by the re- 
newal of a mortgage by a person with a limit- 
ed interest in the estate the intention was 
to operatea ;.' r.vir <-f debts effectually 
secured upon ',,: , right." 

It seems to me, therefore, that the mort- 
gage of 1863 being still alive in 1867 and 
the mortgagees bging under that mortgage 
entitled to get possession, the possession 
delivered by Thomas Brown Skinner in 1867 
must be referred to that right and the mort- 
gagees were, therefore, in possession of the 
mortgaged property from that time under 
Thomas Skinner's mortgage of 1863 and 
quite apart from such possession as was 
subsequently gained by the auction- pur- 
chases in 1872 under the decrees obtained 
against Thomas Brown Skinner. 

In this view, therefore, even if the con- 

Tage of 35 A. [Ed .] "" 



[92 L 0. 1926J 

struction of Art. 134 propounded by the 
learned Counsel for the plaintiff-respondent 
be accepted, the conditions necessary to 
give the purchaser the protection of Art. 
134 are fulfilled. 1 have referred to the sale 
of the mortgaged property to the Nawab of 
Rampur in 1903 and to the sale by him to 
Naunihal Singh in 1904. When Seth Lach- 
man Das sold to the Nawab in 1903 he was 
in possession of these five \ lilaKc.-mi-.i had 
been so for over thirty years. He purport- 
ed to convey an absolute title to the Nawab, 
and no doubt believed that he had a right 
to do so on the understanding, mistaken 
though it was, that he had acquired the 
proprietary right by the purchase of Tho- 
mas Brown Skinner's equity of redemption 
in the year 1872. That the Nawab gave 
valuable consideration for the sale is clear- 
ly established, as is also the fact that in the 
folio wing year, 1904, Naunihal Singh paid 
the Nawab Rs. 1,77,000 for the full propriet- 
ary interest in these villages. For these 
reasons I hold that the plea of limitation 
raised under Art. 134 must prevail and that 
Naunihal Singh is not liable to be ejected 
now in a suit for redemption of the mort- 
gage of 1863. 

It may be noted here that this plea of 
limitation was not available to Naunihal 
Singh in the suit which Richard Ross Skin- 
ner brought against him in 1906 and which 
was decided by their Lordships in the year 
1913. By that time the period of twelve 
years, :vc\ -i-ii-j: from the date of the sale 
by the 6em 10 the Nawab of Rampur (the 
24th September 1903) had not expired. 

The appeal of Naunihal Singh must, there- 
fore, be allowed and the decree of the lower 
Court reversed in so far as it awards the pos- 
session of the five villages Gangola, Saleh- 
pur, Neknampur, Ghori Bachhera and Sun- 
pehra to the plaintiff. The decision relieves 
me from the duty of examining the other 
question which was argued on behalf of the 
appellant Naunihal Singh, namely, the 
question of how the account on the mort- 
gage should be taken. As Naunihal Singh 
is found to be entitled to retain possession 
of these five villages, lie has no interest in 
the amount which the plaintiff is liable to 
pay. 

As regards the other appellant Nawab 
Mukarram Ali Khan, who is represented by 
Mr. Girdhari Lai Agarwala, all that need ba 
said is that he is entitled to no relief under 
this appeal. He claims to be entitled to 
retain possession of one item oi the mort- 



[92 I. 0. 1928J 



NAUNIHAL SINGH V. AL1C8 GEORGINA SKINNBR. 



71 



gaged property only, viz., Mauza Daula 
Rajpura, and as things stand at present, he 
has got what lie wanted, for the suit, in so 
far as it concerns thia village, lias been 
declared by the Subordinate Judge to have 
abated. I have already mentioned that no 
other appellants except these two have been 
represented before us in this appeal (i. e., 
F. A. No. 86 of 1924). 

IN?. A. No. 494 OP 1922. 

This appeal is without substance and 
must fail. The appellants are three of the 
defendants. Qobind War up, nand Sarup 
and Chand Sarup. They are in possession of 
a IQ-biswa share of Mauza Mathurapur, one 
of the mortgaged items which they claim to 
have acquired as auction- purchasers in exe- 
cution proceedings. To explain the nature 
of the defence set up by these persons it is 
necessary to state the following facts: Ric- 
hard Ross Skinner, who had sued for re- 
demption in 1906, died on the 15th August 
1913, a few months after the decision of 
th^ir Lordships of the Privy Council Their 
Lordships had directed the suit of Richard 
Roas Skinner to be remitted to the High 
Court to be dealtwith upon the footing that 
the rights under the mortgages granted by 
Thomas Skinner should be satisfied by pay- 
ment being made to the mortgagees or their 
successors. On such payment being made 
within a time to be fixed, Richard Ross 
Skinner was to be given a decree for pos- 
session; on failure to pay, his suit was to be 
dismissed. Before the investigation neces- 
sary to give effect to these orders could be 
held, Richard Ross Skinner died Mid hav- 
ing left no legal representatives who could 
continue the claim, the suit abated. An 
attempt was made by his brother, George 
Corbyn Skinner, to get leave to continue the 
suit but thia failed for the reason that his 
title as a life-tenant was quite independent 
of that which his brother had held. Having 
failed in this attempt, George Corbyn Skin- 
ner brought in his own right a suit for re- 
demption which never reached the stage of 
decision owing to his death on the 1st De- 
cember 1919. 

Now in the suit which was brought by 
George Corbyn Skinner these three appel- 
lants in F. A. No. 494 of 1922 were im- 
pleaded as defendants. In the course of 
that suit a compromise was effected bet ween 
George Corbyn Skinnerandthesedefendants 
in accordance with which apparently they 
were allowed to retain possession of a 10- 
'biswa share in Mouj$a Mathurapur, one of the 



items of property mortgaged. In the present 
suit they set up this compromise as a bar to 
the claim of the plaintiff in respect of this 
property. The Subordinate Judge overruled 
this defence being of opinion that no agree- 
ment entered into between George Corbyn 
Skinner and these defendants could bind 
the plaintiff in the present action. This 
vpas without doubt a correct decision, for 
Georga Corbyn Skinner being only a life- 
tenant no act of his could be binding upon 
the plaintiff in the present suit. She was 
not claiming under George Corbyn Skinner 
but under an independent title. 

The appellants seek to raise this plea again 
in appeal, but for the reason just given, it 
cannot succeed. First Appeal No. 494 of 
1922, therefore, fails. The result, therefore, 
is as follows. 

First Appeal No. 86 of 1924 succeeds so far 
as the claim of Kunwar Naunihal Singh 
is concerned and the decree of the lower 
Court is reversed to this extent that it is 
declared that the suit of the plaintiff fails 
and is dismissed with respect to the five 
villages Gangola, Salehpur. Neknampur, 
Ghori Bachhera and Sunphera. The decree 
of the Court below will be amended accord- 
ingly. As regards costs I decline to make 
any order in favour of Kunwar Naunihal 
Singh either here or in the Court below. He 
has succeeded on a plea of limitation 
which was not raised in the Trial Court 
and in this Court he failed to have trans- 
lated and printed the evidence by which 
he sought to support the plea of limita- 
tion raised here. In other respects F. A. 
No 86 of 1924 fails and is dismissed with 
costs in this Court against the answering 
respondent (the plaintiff) including fees 
on the higher scale. First Appeal No. 
494 of 1922 fails and is dismissed with costs. 

Kanhalya Lai, J. I agree generally 
with the conclusions at which my learned 
brother has arrived and only wish to add 
a few observations in regard to the precise 
bearing of Arts. 134 and 140 of the Indian 
Lii dtation Act on the Subject-matter in 
issue in these appeals. The mortgage sought 
to be redeemed was effected by Thomas 
Skinner on the 1st September 1863 in favour 
of the firm of Seth Likshmi Chand and beth 
Govind Das of Muttra for Rs. 50,000. The 
mortgage money was re-payable with in- 
terest at Re. 1 per cent, per mensem 
by the 31st December 1863 and in case of 
default it was to bear interest at 1| per 
cent, per mensem from the date of its 



72 



NAUNIHAL SIKQH V, ALlOtt QEORQINA SKINNER. 



execution, There was a further covenant 
that the interest shall be regularly paid 
every half year and that similar payments 
will be madeto wards theprincipal year after 
year till the entire mortgage money was 
paid up ; and that.if the mortgagor failed to 
pay the principal and interest from the 
profits of his property, as provided in the 
mortgage-deed, he shall put the mortgagees 
in possession and occupation of the hy- 
pothecated villages so that they might 
recover the principal and interest by taking 
the property under their own management 
and supervision. In other words, the mort- 
gage was a simple mortgage convertible 
into a usufructuary mortgage on the hap- 
pening of a certain contingency. 

Thomas Siknner died in November 1864 
leaving a Will, els, 4 and 5 of whiclrprovid- 
ed that his private zemindari which had 
been granted to him by the Government as 
a reward for the services rendered during 
the rebellion of 1857, and all villages, 
houses and other property added by him 
from time to time to the original grants, 
shall on his demise descend to his eldest 
son, Thomas Brown Skinner, and to his 
lawful male children according to the law 
of inheritance and in the event of the eldest 
son, Thomas Brown Siknner, dying without 
lawful male children, the same shall des- 
cend to the next male heir of the testator; 
and should all his sons die without lawful 
male children, it shall descend to his female 
children or in the event of their death, 
to the female children born in wedlock of 
his sons in succession. 

By virtue of this Will Thomas Brown 
Skinner took possession of the estate from 
the Court of Wards which had meanwhile 
taken charge of it. On the 10th November 
1867 he executed a mortgage in favour of 
the Muttra firm, the proprietor whereof was 
now Seth Govind Dass, for Rs. 50,000 out 
of which Rs. 43,291-14-3 were credited on 
account of principal and interest due to the 
said firm on account of a previous mortgage 
and the balance was taken by him in cash 
for his own purposes. The same property 
which had been previously mortgaged was 
hypothecated again and it was provided 
that the mortgagors shall get the name of 
the mortgagee entered in the revenue papers 
in respect of the mortgaged villages and 
that the karindas and seivauts of the 
mortgagor shall make collections and assess- 
ment in respect of the same of their 0*11 
authority, but a treasurer and two peons 



[93 I. 0. 1926] 

shall |)e appointed on behelf of the mort- 
gagee to supervise the collections and take 
charge of the money so realized, to be 
applied after payment of the Government 
revenue, the patwaris fee and the village 
expenses besides the cost of collection in- 
cluding the salary of the treasurer and peons 
of the mortgagee, in the reduction of the 
principal and interest due on the mortgage. 
There was a further provision that the 
accounts of the debt and the receipts and 
disbursements of the mortgaged villages 
shall be made up six monthly and that if 
any of the karindas and servante of the 
mortgagor acted against the wishes of ^ the 
mortgagee, he shall be liable to dismissal 
and the mortgagee shall have power to 
make collections and assessment on his own 
account. 

In 1872 and 1873 Seth Lachman Das, the 
successor of the mortgagee, purchased some 
mortgaged villages in execution of certain 
decrees for money held by other persons 
against Thomas Brown Skinner and believ- 
ing himself to have become thereby the 
absolute .owner of those villages and to 
be competent to deal with them as if 
they were his own property, he, on the 
26th December 1898, as the surviving 
member of the family of the mort- 
gagee, mortgaged the said villages along 
with other properties with the Nawab of 
Rampur. On the 24th September 1903 he 
sold the same to the Nawab of Rampur 
who in turn sold five of the villages now 
in dispute on the llth April 1904 to Nau- 
nihal Singh defendant for a sum of 
Rs, 1,77,000, describing himself as the abso- 
lute owner of the properties conveyed 

It is urged on behalf of Naunihal Singh 
that he was a transferee in good faith and 
for consideration from the Nawab of Rampur, 
who had purchased from Seth Lachmi Das 
the absolute rights he claimed to have 
acquired at the auction-sales aforesaid and 
that he is protected by Art. 134 of the Indian 
Limitation Act from being made liable 
to a claim for redemption in respect of the 
-:.;*. *: : .; j; of the 1st September 1863. 
Meauwmie inomas Brown Skinner died 
without leaving any male issue. In 1^06 a 
suit was brought by Richard Ro?a Skinner 
for the possession of tlie estate which was in 
the hands of transferees, and it was held 
by their Lordships of the Privy Council 
eventually, on a construction of the Will of 
T!i Jins Skinner, that Thomas Brown Skin- 
ner had only a life-estate and that the 



[02 L 0. 1926] 

mortgage granted by 
ineffectual to convey or give any right over 
any estate except the tenancy for life of 
which Thomas Brown Skinner was possess- 
ed. Their Lordships remanded the suit for 
determining tho amount of the mortgage 
money due under the mortgage granted by 
Thomas Skinner. But before the suit 
could be re-heard Richard Ross Skinner 
died without leaving any male issue and as 
he too had only a life-interest in the estate 
his suit abated. A fresh suit for redemp- 
tion was then brought by George Corbyn 
Skinner, the next son and heir of Thomas 
Skinner, but he too died before the decision 
of the suit. The present suit was then filed 
by Alice Georgina Skinner, the daughter 
and next heir of Thomas Skinner, for the 
redemption of ttie mortgage of the 1st Sep- 
tember 18B3 and it is evident that, but for 
Art. 134 of the Indian Limitation Acfc, the 
suit would be within time under Art. 148 
read with Art. 140 of that Act. As between 
tKe transferees and the present plaintiff no 
question of adverse possession can arise, 
because under Art. 140 of the Indian Limi- 
tation Act a remainderman or devisee can 
sue for possession of immoveable property 
devised to him within 12 yeais from the 
date when his estate falls into possession. 
Once a person enters as a tenant for life 
he cannot hold adversely to the remainder- 
man. An adverse possession for any length 
of time against a tenant for life is similar- 
ly ineffectual against the reversioner or re- 
mainderman whose right to possession only 
accrues on the death of the tenant for 
life. 

Article 134, however, allows only a period 
of 12 years for a suit to recover possession 
of immoveable property mortgaged and &ub- 
suquently transferred by the mortgagee 
for a valuable consideration to be comput- 
ed from the date of such transfer. It 
applies to cases where the mortgagee pur- 
poitsto transfer what he is not compe- 
tent to alienate, that is, an interest greater 
than that of a mortgagee, and it presu poses 
a mortgage with possession or followed by 
possession as a necessary incident or in- 
gredient of it, because a mortgagee who is 
not in possession cannot transfer possession 
to another or give what he does not possess. 
If the mortgagee acquires possession in 
some other capacity, the transfer of posses- 
sion will be deemed to have been made in 
the capacity in which it .was (rightly or 
wrongly) acquired aad such acquisition 



NAUNIHAL SINdH V, ALICE GBOtttlNA SK1NNBR. 

Thomas Skinner was cannot be attributed to the mortgage where 



the mortgage itself is a simple mortgage or 
a mortgage not entitling the mortgagee to 
possession by virtue of its incidents or 
terms. 

In this case the villages in question were 
purchased by Seth Lachmi Das at auction 
sales in execution of certain decrees for 
money against Thomas Brown Skinner who 
was afterwards found to have had only a life- 
interest therein. It is stated on behalf of 
mortgagee that he got possession after the 
auction- purchases in lc>72, but the plaintiff 
states (para. 8 of the plaint; that the mort- 
gagee used to manage the property and 
make collections under the usufructuary 
mortgage effected by Thomas Brown Skin- 
ner 011 the 10th November 1867 in lieu 
of the moneys due on the mortgage of the 
1st September 1863, and certain other mort- 
gages, and inasmuch as the mortgage of the 
10th November 1867, cannot be deemed to 
operate beyond the lifetime of Thomas 
Brown Skinner, the possession of the mort- 
gage must be deemed to have continued 
after his death under the mortgage of the 
1st September 1863 now sought to be re- 
deemed. There was a provision in the 
mortgage deed of the 1st September 1863 
entitling the mortgagee to obtain posses- 
sion if the principal and interest due there- 
on were not regularly paid. During the 
previous litigation which went up to the 
Privy Council it does not appear to have 
been disputed that the mortgagee was 
placed in possession of the mortgaged pro- 
perty by Thomas Brown Skinner under the 
mortgage of the luth November 1867 and 
as that mortgage failed to be operative 
beyond the life time of Thomas Brown 
S'unner who died in 1900, it follows that 
the possession of the disputed villages qua 
the mortgagee's interest must be deemed 
to have been held after that date under the 
mortgage of the 1st September 1863, which 
it sought to re-pay. The mortgagee, how- 
ever, believed himself to have acquired the 
interest of the mortgagor by his purchases 
at auction sales of 1872 and 1873 in execu- 
tion of the decrees for money held by cer- 
tain other persons against Thomas Brown 
Skinner; and the real position of the rights 
of the parties was not discovered till the 
correct construction to be placed on the 
Will of Thomas Skinner was determined by 
their Lordships of the Privy Council on 
the 4th Mirch 1913. Till then the period 
of limitation allowed by Art. 134 of 



ZUKOOBAI 0, BHAL9INOH. 



the Indian Limitation Act for a suit for 
possession of immoveable property mort- 
gaged and then transferred by the mort- 
gagee to another person for valuable con- 
sideration had not expired in respect of 
the transfer made by Seth Lachhman Das 
of what was described as an absolute right 
in favour of the Nawab of Rampur or that 
made by the latter in favour of Naunihal 
Singh. The object of Art. 134 is to protect 
transferees for value who have purchased 
an interest larger than that possessed by 
the transferor and have been allowed to 
remain in possession and enjoyment of such 
larger interest for a period of more than 
12 years. In the matter of the mortgaged 
properties so transferred, it controls Art, 148 
of the Indian Limitation Act in the same 
way as it controls Art. 140. If the mort- 
gaged property is in possession not of the 
mortgagee but in that of a transferee from 
him who claims to have purchased larger 
interest therein for consideration, what a 
man is not allowed to do under Art. 148 
of the Indian Limitation Act, he cannot be 
allowed to do under Art. 140 after such 
possession has been held for more than 
12 years. The question is not free from 
difficulty but in view of the equities of 
the case and the long and continuous liti- 
gation which the transferee had to face both 
before his possession of 18 years was com- 
pleted and after it there is no ground for 
allowing the remainderman to oust him 
after such period has expired. It may be 
that Richard Ross Skinner was suing for 
possession of the disputed property as much 
in his own interest as that of his succes- 
sors, but the order refusing to allow sub- 
stitution after his death was notchalleged 
and allowed to become final and a re- 
mainderman who sues for the redemption 
of the mortgage cannot escape the conse- 
quences which Art. 134 prescribes. 

In regard to the other matters raised in 
either of these appeals I have nothing to 
add to the decision of my learned colleague 
with which 1 am in agreement. I agree, 
therefore, in the order proposed. 
' z. K. Decree modified. 



[92 1. 0. 1926] 

NAOPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

SECOND CIVIL APPEAL No. 229 OF 1924. 

Septembers, 1925. 

Present ; Mr. Kotval, A. J. 0. 

Musammat ZUKOOBAI DEFENDANT 

APPELLANT 

versus 
BHALSINGtL PLAINTIFF RESPONDENT. 

Set-off Contribution, suit for Rent-decree paid off 
by co-tenant Suit to recover thare of other co-tenant 
Demands arising out of different transactions, 
whether can be set off Plaintiff managing tenancy 
lands as agent subsequent to period included in rent- 
decide, effect of. 

Plaintiff and defendant were co-tenants of certain 
occupancy fields. The landlord sued them for arrears 
of rent in respect of 'certain years and obtained 
a decree which the plaintiff paid up. Plaintiff 
then sued the defendant to recover the latter's 
share of the decretal amount. <*The defendant ad- 
mitted liability m respect of the amount claimed but 
resisted the claim on the ground that the plaintiff 
waa the manager of the tenancy lands and was liable 
to account for the profits theieof up to the date of 
the institution of the suit and could not, therefore*, 
sue to recover what could only be an item of debt 
against the defendant in the account to be rendered 
by the plaintiff It was found that if the plaintiff 
was managing the tenancy lands as the defendant's 
agent such management commenced after the expiry 
of the years in respect of which the rent-decree 
satisfied by the plaintiff had been obtained by the 
landlord- 

Held, that the defendant could not insist on having 
a demand not arising out of the agency treated as 
a debit item in any account that the plaintiff might 
have to render in respect of his agency, nor could 
the defendant claim an equitable set-off in respect 
of such demand, since the demands of the plaintiff 
and the defendant had not arisen out of the same 
transaction, [p. 75, cols. 1 & 2 J 

Second appeal against a decree of the 
District Judge, Nimar, dated the 8th of 
March 1924, arising out of the decision of 
the Munsif, Seoni Mahva, dated the 6th of 
October 1923. 

Mr. M. R. Bobde, for the Appellant. 

Mr. S. B. Gokhale, for the Respondent. 

JUDGMENT. (Septemb-r 2nd, 1025). 
The plaintiff and the defendant are co- 
tenants of certain occupancy fields. The 
landlord sued them for arrears of rent 
for the last kist of Sambat 1971, both 
kists of 1972 and 1973 and the first 
kist of 1974 and obtained a decree which 
the plaintiff paid up by instalments be- 
tween the 10th February and 1st May 
1920. The plaintiff sues the defendant for 
half the amount with interest. The defend- 
ant admitted her liability for half the rent 
but resisted the claim on several grounds 
of which the one now material is that the 
plaintiff was the manager of the fields, 
that he was aa such liable to account fgj 



[92 I. 0. 1926] YADO V. AMB 

their profits up to the date of the institu- 
tion of the suit and that he could not sue 
to recover what could only be an item of 
debt against the defendant in the account 
to be rendered by him. The plaintiff deni- 
ed that he was in possession or that there 
were any profits up to the year 1977. He 
admitted that he was liable to account for 
the profits of 1977 and subsequent years 
but denied that he was bound to treat the 
payment as an item of debit in an account 
of the profits. It has been found that up 
to Sambat 1976 the fields were with a 
stranger who had been put in possession 
by the defendant's husband and the plaint- 
iff and that there were no profits therefrom 
prior to that year. 

The Trial Court found that the plaintiff 
was not the manager and that he could sue 
for half the decretal amount paid by him 
without accounting for the profits subse- 
quent to 1976 and decreed the claim. The 
lower Appellate Court has not given any 
specific finding that the plaintiff was not 
the manager but has upheld the Trial 
Court's decision. The defendant appeals. 

The sole question in appeal is whether 
the plaintiff could only recoup himself by 
debiting the amount to the defendant in 
an account of the profits or recover it by a 
separate suit. If the plaintiff was the 
manager on behalf of the defendant it is 
not disputed that he could not sue sepa- 
rately for the amount paid by him on 
defendant's behalf. It is, however, con- 
tended that this item has nothing to do 
with the question of accountability as a 
manager. 

It in clear from the facts of the case that 
up to the year 1976 the plaintiff was not 
and could not have been the manager, for 
the land having been put in possession of 
a third party for the satisfaction of a debt 
by the consent of the plaintiff and the de- 
fendant's husband there was nothing to 
collect as income and nothing to manage. 
No importance can be attached to the casual 
statement in the plaintiff's evidence that 
he "managed the lauds" since the date of 
the award. We do not know what the exact 
vernacular word used by the plaintiff which 
has been translated as " managed " was. 
In any case it cannot be construed to mean 
that he was managing the lands as the 
agent of the defendant. Assuming that 
after 1976, the plaintiff was acting as the 
agent of the defendant in the management 
of the land the defendant cannot insist ou 



SHANKAR. 75 

having a demand not arising out of the 
agency treated as a debit item in any 
account that the plaintiff has to render. 
Nor can she claim an equitable set-off in 
respect of it since the demands of the 
plaintiff and the defendant cannot be said 
to have arisen out of the same transaction. 
She could only make a counter-claim which 
she has not done here. 

The decision of the lower Courts is 
correct. The appeal is dismissed with 
costs. 

(September r )} 1925.) The respondent files 
a cross-objection with regard to the interest 
which is disallowed by the lower Appellate 
Court. He contends that as he alleged in 
the plaint that a demand of the amount 
claimed was made from the defendant and 
that it was not taken notice of by her and 
as the defendant did not deny the allega- 
tion she must be taken to have admitted 
it. The plaint states that demand was 
made several times but gives no dates. The 
plaintiff, however, files a postal acknow- 
ledgement of an alleged notice which is 
not denied. This is dated the 25th August 
1922. The suit was filed on the 8th Feb- 
ruary 1923. The plaintiff may, therefore, 
be allowed inteiest for the period between 
these two dates. No interest after the in- 
stitution of the suit was asked for and none 
was allowed in the Trial Court. The decree 
of the lower Appellate Court will be modi- 
fied by adding interest from the 25th 
August 1922 to the 8th February 1923 at 
1 per cent, per mensem on Rs. 542-J2-9 
Costs of the objection will be paid and 
received according to failure and success. 

z K - Decree modified. 

NAQPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS CIVIL APPEAL No. 4 OF 19^5 

July 2S, 1925. 
Present: TAr. Findlay, Officiating J. C. 

YADO AND OTHERS DEFENDANTS 

APPELLANTS 
versus 

AMBASHANKAR PLAINTIFF- 
RESPONDENT. 

Causa of action "Completed" and "conttnuoiw" 
causes of actionProspective damages Damages as 
mesne profits, when recoverable. 

There is a distinction between a completed cause 
of action which may yet produce damage in future 
and a continuous cause of action from which con- 
tinuous damage steadily flows, [p. 76, col. 2.] 

The term "prospective damages" is applied to the 
damages which are awarded to a plaintiff not as a 



70 



YADO V. AMBASHANKAB. 



[921. O. 



compansation. for the ascertained loss which he haa 
sustained at the time of commencing his action but 
ia respect of loss which, it may reasonably ba 
anticipated, he will suffer thereafter in consequence 
of the defendant's act or omission [p, 77, col. 1.] 

A plaintiff is entitled to have prospective damages 
assessed only when the cause of action is complete. 
In the case of a continuous cause of action a suit 
for damages will lie every time damages accrue 
from the act, but prospective damages are not re- 
cove" able, for the cause of action is not the act but 
the damage arising therefrom, [p, 77, cols. 1 & 2,] 

A suit, therefore, for mesne profits as damages 
against a trespasser in respect of agricultural land 
ia premature if it is brought before the end of the 
agricultural year when the crops are gathered, [p. 76, 
cols 1 & 2.] 

Appeal against a decree of the District 
Judge, Nagpur, dated the 16th December 
1924, in Civil Appeal No. 192 of 1924. 

Mr. D. W. Kathale, for the Appellants. 

Mr. A. V. Wazalwar, for the Respondent. 

JUDGMENT. The plaintiff-respond- 
ent Ambashankar sued the defendant- 
appellants Yado, Chimna and Govinda in 
the Court of the first Subordinate Judge, 
Nagpur, for Rs. 3,000 damages in respect of 
his having been forcibly dispossessed of cer- 
tain sir fields on the 18th of June 19-4. He 
claimed Rs 3,000 damages on the ground 
that this would have been the net profit he 
might have obtained from the fields by 
self-cultivation in the Fasli year 1334. 

The only ground we are now concern- 
ed with relates to a plea raised on behalf of 
the defendant-appellants that the agricul- 
tural year for which the plaintiff had taken 
the lease had not ended when the present 
Buit was filed, and the crops in question 
had not even been gathered. The Judge 
of the first Court only took up the question 
of the prematurity of the suit and came to 
the conclusion that the plaintiffs claim was 
nothing more than one for the recovery of 
mesne profits, brought in consequence of 
ejectment from immoveable property, that 
the suit was an ordinary one under Art. 109 
of the First Schedule of the Limitation Act, 
that time thereunder ran until the cause of 
action was complete, and that the profits 
had, therefore, not accrued due. He accord- 
ingly dismissed the plantiff's suit. The 
plaintiff appealed to the Court of the Dis- 
trict Judge, Nagpur, and this Judge re- 
versed the finding of the first Court on the 
question of the prematurity of the suit and 
remanded for the case for re trial to the first 
Court The defendants have now come up 
on appeal against the judgment of tne Dis- 
trict Judge remanding the case. 

The view taken by the lower Appel- 



late Court was that it was open to the plaint- 
iff to sue for compensation for having been 
deprived of profits which he would havd 
derived from the fields, even although the 
Fasli year 1334 had not expired. The Diflv 
trict Judge regarded the suit, not as one for 
mesne profits but as one for damages for 
trespass upon land and he further held that 
in the circumstances of the case the plaint- 
iff was entitled to claim prospective dam- 
ages. 

The question involved in this appeal 
is not free from difficulty, but in connection 
with the matter of damages it is necessary 
to distinguish between a complete cause of 
action which may yet produce fresh damage 
in the future, and continuous cause of ac- 
tion from which , ; . .- ]-.- .r: steadily 
flows. Best, J., : , . - . v. Mellish 
(1) remarks as follows : 

t( When the cause of action is complete, 
when the whole thing has but one neck, 
and that neck has been cut off by the act 
of the defendant, it would be most mischiev- 
ous to say it would be increasing litiga- 
tion to say you shall not have all J T OU are 
entitled to in your first action, but you 
shall be driven to bring a second, a third, or 
a fourth action for the recovery of your 
damages." 

In such a case obviously, prospective 
damages can be allowed. The cause of 
action ia thereon, so to say, complete and 
concluded, and the obvious undesirability 
in such a case of driving the plaintiff to a 
fresh suit for each and every result which 
arises from the completed cause of action 
needs no emphasis. Here, however, in the 
present instance a trespass commenced in 
June 1924 and continues from day to day, 
we thus find a cause of action which is not 
complete ; the cause of action, BO to speak, 
continues and goes de die in diem. As- 
suming the defendants to have been trespas- 
sers, for all one knows they might have 
repented of their wrongful action long be- 
fore the crop was due to be reaped. The 
inconvenience which would result from al- 
lowing in a case like the present daoihges, 
which are undoubtedly based on the calcula- 
tion that the fields will yield a normal crop 
at a date after the suit was filed, is too 
obvious to require emphasising. How can 
we be sure that some natural calamity might 
not occur in the meantime, which would 

(1) (1824)2 Bing. 229 at p 210, 133 E R 2JH; 9 
Mowa 435; 3 L J. 0. P. 230; By. $ Mo^>, 66; 1 0. & l\ 
841; 27 R, R, 331, 



[92 I. 0. 1926] 

totally destroy the crop, whether it was in 
the possession of the rightful owner or of 
the trespasser? In Byjnath Per shad v. 
Radhoo Singh (2) Bay ley and Macpherson, 
JJ. held that where the amount of mesiie 
profits cannot be ascertained till after the 
end of the year, the cause of action does 
not arise till then. At page 202 of the same 
Volume [Koomaree Dossee v Bama Soon- 
duree Dossee (3)] Phear and Hobhouse, J J M 
came to a somewhat opposite conclusion 
but the circumstances of that case were 
highly peculiar. There the defendant had 
cut down all the fruit-bearing and timber 
trees on the piece of land in dispute and 
had carried away or destroyed by brick- 
making all the fertile soil. The defendant, 
in short, had not only caused damage to 
the plaintiff in respect of past time but had 
also rendered it probable in the highest 
degree that she would be a loser in her 
possession of the land in future time. The 
circumstances of that case were thusundoubt- 
edly unique and not at all parallel to 
those of a case like the present which is a 
normal one of a trespasser entering upon 
the land, sowing it and hoping to reap the 
crop. 

The learned District Judge his relied 
on certain 'remarks made in Mayne on 
Damages, 9th Edition, page 453, and on 
Halsbury's Laws of England, Vol. X, page 
306. There Halsbury defines " prospective 
damages " as follows : 

" The term * prospective damages ' is 
applied to tfre damages which are awarded 
to a plaintiff, not as compensation for the 
ascertained loss which he has sustained at 
the time of commencing his action, but in 
respect of loss which it may reasonably be 
anticipated he will sutler thereafter in 
consequence of the defendant's act or 
omission." 

At page 310* of the same volume, however, 
the following remarks occur : 

"A cause of action in respect of which 
a plaintiff is entitled to have the prospec- 
tive damages assessed must be distinguish- 
ed from a continuing cause of action, that is 
to say, a cause of action which arises from the 
repetition or continuance of acts or omis- 
sions of the same kind as that for which 
the action has been brought. Similarly, 
Where the damage consequent on an act or 

ft) 10 W. R, 486; 2 B. L. R. S. N 10; 1 lad. Dae. 
(N. s.) 1021. 
J3) 10 W R 202. r* 

*Pag of Halgbury'a Law* of Knglaud, -[&<*! 



tADO V, AMBASHANKAn, 



77 



omission rather than the act or omission 
iLself is actionable, then, as the action is 
only maintainable in respect of the damage, 
or is not maintainable until the damage is 
sustained, an action will lie every time 
damage accrues from the act. In this case, 
prospective damages are not recoverable ; 
for the cause of action is not the act, but 
the damage arising therefrom." 

These remarks are, in my opinion fully 
applicable to the circumstances of the pre- 
sent case. 

I have been referred by the Pleader 
for the respondent to Ramasami Reddiv. 
Authi Lakshami Ammal (4). Abdur Rahim 
and Ayyar, JJ., therein held that a suit for 
mesne profits by a plaintiff who had been 
kept out of possession by the defendant, does 
not, for purposes of limitation, fall within 
Art. 109 of the Limitation Act, when no 
profits have been actually received by 
defendant, and that such a suit is one for 
damages under Art. 39. I do not see that 
this case has any direct bearing on the 
question which is before me, viz , whether 
or not the plaintiff in the present case is 
entitled to sue for prospective damages, 
which is, in effect, what he has chosen to 
claim in the present case. If any damages 
or loss had been caused to the plaintiff by 
the time of his bringing the suit, he would 
have been entitled to claim these in the 
plaint and he would further have been 
entitled eventually under 0. XX, r. 12 (c), 
C. P. C., to mesne profits even in the 
future He has, however, deliberately 
chosen not to pursue this course but has 
claimed a lump sum of damages which are 
admittedly based, and can only be based, 
on the assumption that if he had been in 
possession of the land in this particular 
year, he would have reaped an average crop 
therefrom. For the reasons given above lam 
of opinion that this has, in reality, amounted 
to a sirt for prospective damages and these, 
as I have already shown, the plaintiff is 
not entitled to claim in the circumstances 
of the case. The cause of action was not 
over and done with, it was still continuing 
from day to day even after the suit was 
filed, and it is difficult to understand why 
the plaintiff deliberately took this mistaken 
course of action. 

For the result the plaintiff has only 
himself to blame. The judgment and 
decree of the, lower Appellate Court are 

(I) 8 lad. Gas. 162; 31 M 502; (1910) M. W. N. 614; 
9 M, L. T. 35, 



78 



VBPtTRI S0BBAYYA V, SECRETARY 6F STATE FOR INDIA. [92 t 0. 1926J 



accordingly reversed and instead a decree 
will issue dismissing the plaintiffs suit, the 
plaintiff-respondent mast bear the defend- 
ant-appellants* costs in all three Courts. 
G. R. D, Decree reversed, 



MADRAS HIGH COURT. 

SECOND CIVIL APPEAL No. 393 OF 1922. 

April], 1925. 

Present: Mr. Justice Ramesam. 

VEPURI 8UBBAYYA -PLAINTIFF No. 1 

APPELLANT 

versus 

THE SECRETARY OF STATE FOR 

INDIA IN COUNCIL KEPKESENTED 

BY THE COLLECTOR OF KISTNA 

DEFENDANTS Nos. 1 AND 2 RESPONDENTS. 

Water rights Natural stream flowing into tank 
Permanent system of irrigation Persons irrigating 
lands from tank, rights o/. 

A natural stream passing through a jungle area 
fell into a tank and then flowed out in a defined 
channel into a second tank, the water of which had 
been used by the plaintiff for more than 60 years 
for the irrigation of his lands. The outlet from the 
first tank had fallen into disrepair several years ago 
and the Government then proposed to repair the 
breach in such a manner as to stop the flow of the 
water from the hrst tank into the channel which 
conducted the water into the second tank from which 
the plaintiff had been irrigating his lands ; 

Held, (1) that the channel system of the two tanks 
having formed a permanent feature of the irrigation 
system of the country and not being intended to be 
temporary and the plaintiff having utilized water for 
the use of his fields for more than 60 years he was 
entitled to the continuance of that flow into the second 
tank, [p. 79, col. 2.] 

(2) that the Government were entitled to repair 
the breach m the outlet from the lirst tank inasmuch 
as there was nothing to show that in spite of the 
lapse of many years since the date of the breach the 
Government had at any time abandoned the idea of 
rv.ito'in'ir the breach or that they intended the state 
of dHH'ptii to be permanent ; [ibid.] 

(3) that the repairs must, however, be carried out 
in such a manner as not to interfere with the usual 
supply of water necessary to irrigate the plaintiff's 
lands from the second tank. 



Second appeal against a decree of the 
Court of the Subordinate Judge, Kistna 
at Ellore, in A. 8. No. 318 of 1920, pre- 
ferred against that of the Court 6f the 
Additional District Munsif, Ellore, in 
0. S. No. 13 of 1920, (O. S. No, 917 of 
1916, Principal District Munaifs Court, 
Ellore). 

Mr. B. Somayya, for the Appellant. 

The Government Pleader, for the Re- 
spondents. 



JUDGMENT. The plaintiff is the 
appellant before me. The 1st respondent 
is the Secretary of State for India. The 
plaintiff is the owner of certain in am sur- 
vey fields in the village of Vemulapalli, 
namely, Nos. 89, 97, 98, 100, 103 and 104. 
These lands are irrigated by the water of 
a tank called Mukkuvanigunta which is 
situated in Survey No. 101. The plaintiff 
is the owner of the tank and also of Survey 
No. 102. The tank was filled by the 
water of a channel, which takes its rise 
from the hills near Gopavaram. Gopava- 
ram is the ^village immediately north 
of the village of Ganapavorigudem and 
the latter village is immediately north 
of Vemulapalli. All the three villages 
originally belonged to a zemindar, but some 
time before the middle of the last century 
the zemindari ceased to exist and all the 
villages passed to the Government. The 
channel takes a definite shape according 
to the old survey plan of 1864 (Ex. XI) in 
the field marked No, 34 and described as 
a j angle. It then passes through the village 
of Ganapavarigudem until it reaches a tank 
called Jangamgunta which was in the field 
No. 45 of that plan. It escapes through a 
southern, outlet of the said tank and ulti- 
mately falls into Mukkuvanigunta belong- 
ing to the plaintiff. 

The District Munsif found that the whole 
course of the channel as described by me 
above was a natural stream and had existed 
for more than 70 years. The outlet of 
Jangamgunta through which the water of 
the channel continues to ilow southwards 
was breached. The District Munsif found 
that the breach had existed for over 60 
years from sometime prior to the vesting 
of the properties in the Government. 

The Subordinate Judge on appeal also 
found that the portion of the channel south 
of Jangamgunta and north of Mukkuvani- 
gunta had been existing during the last 
60 or 70 years. An examination of the 
whole record shows that it is impossible 
to say when the channel and two tanks 
began to exist in the form * in which they 
now exist. All that can be said is that 
they must have existed in this shape for 
more than 70 years and have become a per- 
manent topographical feature. After the 
breach of the southern outlet of Jangam- 
gunta, that tank lost its original shape: 
so far as the western side is concerned no 
water could be stored in it, but on the 
western side a poud was formed which 



VBPURI SUBBAYYA V. SECRETARY OP STATE FOR INDIA. 



[92 I. 0. 1926] 

formed the irrigation source to the lands 
of Ganapavarigudem. This state of things, 
namely, the tank being in a state of dis- 
repair, (the breach of the southern outlet 
not being repaired) must have led to the flow 
of more water into Mukkuvanigunta than 
was originally intended ; but that it did 
flow and was utilized by the plaintiff for the 
irrigation of Survey Nos. 89, 97, 98, 100, 
103 and 104 for more than 60 years is found 
by the Courts below and cannot be now 
questioned in second appeal. I am not satis- 
fied with the evidence that it was utilised 
for the irrigation of Survey No. 102 for 
a similar period as the appellant claimed 
before me and this is the finding of the 
Courts below. The plaintiff has, therefore, 
acquired an easement by which he is entitl- 
ed to supply of enough water for the 
irrigation of his said lands (excluding Sur- 
vey No. 102). 

It has been suggested by the learned 
Government Pleader that the plaintiff 
could not acquire an easement as the por- 
tion of the channel beyond Jangamgunta 
carried only the surplus waters of that tank 
and he relied on Wood v. Wand (1), Ark- 
wright v. Cell (2), Chamber Colliery Co. v. 
Hopwood (3), Mason v. Shrewsbury and Here- 
ford Railway Company (4) and Burrows v. 
Lang (5). But I do not think these cases 
apply. I have already observed that the 
channel was really a small natural stream 
and though Jangamgunta tank is probably 
an artificial formation, it does not mean that 
the channel south of it is artificial and 
consisted only of the surplus waters of the 
tank, for, before the formation of the tank, 
the natural stream must have continued to 
flow southwards. The effect of the tank 
could be only to dam up the waters until 
they reached a certain height and then to 
permit their escape. But even if it were 
not so, I think the principle of the decision 
in Ramessur Persad Narain Singh v. 
Koonj Behary Pattuk (6) applies. The 

(1) (1849) 3 Ex 748; 18 L. J. Kx 305; 13 Jur. 472, 
154 E. R. 1047; 77 R.R.809. 

(2) (1839) 5 M. & W. 203; 2 H, & H. 17; 8 L. J. Ex. 
201;52R t R 671; 151 E. R. 87, 

(3) 1886) 32 Oh. D. 549; 55 L. J. Ch, 859; 55 L. T 
449; 51 J, P. 164. 

(4) (1871) 6 Q. B. 578 at pp. 584 587; 40 L. J. Q. 1). 
293; 25 L. T. 239; 20 W.R.14. 

(5) (1901) 2 Ch. 502; 70 L. J. Ch. 607; 49 W. R. 564; 
84 L. T, 623; 17 T. L. R. 514. 

(6) 4 C. 633; 6 I. A. 33; 3 Sar, P. C, J, 856; 3 Ind. 
Jur. 179; 2 Shome L, R, 194; 2 Ind. Dec, (N. B.) 402 
(P. 0.). 



channel system and the two tanks having 
loimed a permanent feature of the country 
and not being intended to be temporary 
and the plaintiff having utilised the water 
for the use of his fields for more than 
60 years he is entitled to the continuance 
of that flow. In making this observation, I 
do not mean to say that the Government 
is not entitled to repair the breach at A. 
Though this breach is continued for more 
than 60 years, I do not think it can be said 
that the Government at any time aban- 
doned the idea of restoring the breach or 
that, they intended the state of disrepair to 
be permanent. The tank was not shown in 
Ex, A, the survey plan of 1896, but the cor- 
responding Diglott Register Ex. B shows that 
Survey No. 44/3 and Survey No. 45 corres- 
ponded to the old Survey No. 45 and were de- 
scribed in the last column as Jangamgunta. 
I think the Government are entitled to repair 
their tank and their channel and there is 
no duty on them to leave them as they 
existed in recent times. It is also unneces- 
sary for me to discuss the effect of Fischer 
v. Secretary of State for India (7), for, 
though the Government have got the right 
of repairing their own channels and tanks, 
they cannot do this so as to prejudice exist- 
ing rights, but so long as the plaintiffs' right 
of irrigating his mam lands already men- 
tioned is amply protected, it seems to me 
that a Court has no right of dictating to 
Government in what manner they shall 
carry out the repairs. Nor is the plaintiff 
entitled to insist that the outlet of the re- 
paired tank should be at the exact identical 
spot where it existed before. 

I am not satisfied that this is a case in 
which it is enough to simply declare the 
plaintiff's right to obtain enough of water 
for irrigating 20 acres of land under Muk- 
kuvanigunta ; I think it is necessary to 
add an injunction to the declaration grant- 
ed by the Subordinate Judge, though I 
cannoi agree with the District Munsif that 
it need be in the very wide terms granted 
by him. I direct the modification of the 
decree of the Subordinate Judge by grant- 
ing, in addition to the declaration given 
by him, an injunction directing the 1st 
defendant to carry out his works in such 
a manner as not to interfere with the usual 
supply of water necessary to irrigate 20 
acres of land belonging to the plaintiff 
under Mukkuvanigunta. 

(7) 2 Ind. Cas, 325; 32 M, 141; 5 M, L, T. U9; 19 M, 
L. J. 131* 



fcO KANRAI t?. 

Each party to bear its own costs in this 
Court. The order of the Courts below will 
stand. 

V. N, V. 

2. K. Decree 'modified. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

SECOND CIVIL APPEAL No. 294 OF 1924. 

July 11, 1925. 

Present: Mr. Findlay, Officiating J. C. 
Musammat KANKAI PLAINTIFF- 
APPELLANT 

versus 

TIKARAM DEFENDANT RESPONDENT. 
Landlord and tenant Tenancy, benami, whether 
leqal- Holding cultivated by real tenant -Benamidar, 
disappearance of Abandonment- Landlord, whether 
can forfeit tenancy. 

Though a contract of tenancy is a personal one, a 
recorded tenant may hold land benami for some other 
person, and if there are circumstances to show the 
landlord knew that the recorded tenant was merely 
a benamidar, he cannot treat the holding as abandon- 
ed if the benamidar disappears and the land is culti- 
vated by the person for whom he was a benami. [p. 81, 

C Appeal against a decree of the District 
Judge, Bhandara, dated the 7th April 1924, 
in Civil Appeal No. 86 of 1923. 

Mr. J. C. Ghose, for the Appellant, 

Mr. V. D. Kolte, for the Respondent. 

JUDGMENT. The plaintiff- respond- 
ent Tikaram, the zemindar of Uonza Kirna- 
pur (Balaghat), sued the defendant- appel- 
lant Musammat Kankai for her ^ejectment 
from an occupancy holding situated in 
Mouza Jamrhi, his case being that the 
tenant of the holding in question was one 
Mahipal Lala who had abandoned it in the 
year 1922 23. The Subordinate Judge found 
that Musammat Kankai had been in pos- 
session of the land but that the Court of 
Wards had made Mahipal Lala tenant 
thereof. Mahipal Lala, however, had never 
cultivated the land and inSuitNo.96 (copy of 
judgment being Ex. D.-5}Musammat Kankai 
had obtained a decree against Mahipal 
Lala to the effect that she was the tenant 
of the land in question. The finding in 
that suit was that Mahipal Lala, when the 
land was brought to sale for arrears of rent, 
had bought it on behalf of the plaintiff and 
that the transaction was, in fact a benami 
one. The first Court accordingly dismissed 
the suit of the plaintiff, 

The plaintiff appealed to the Court of 



f IKARAM. [2 1. 0. 1926] 

the District Judge, Bhandara, who reversed 
the judgment and decree of the first Court. 
The learned District Judge gave a definite 
finding to the effect that he had agreed 
with the Judge of the first Court that the 
facts and the cirumstances proved in the 
case clearly showed that the defendant 
was in possession of the land in suit all 
along and that Mahipal Lala, who was her 
former servant, was "nominally the record- 
ed tenant of the land. 1 * The learned Dis- 
trict Judge seems to have been influenced 
by the result of the Suit No. 8 of 1919 
between Mahipal Lala and Bajirao, the son 
of Musammat Kankai. In that suit Bajirao 
had admitted that Mahipal Lala was the 
tenant of the land, but pleaded that he had 
obtained a lease thereof for an indefinite 
period. The Additional Subordinate Judge, 
who had dealt with this case, held that 
there had been a lease for one year only 
and accordingly passed a decree in favour 
of Mahipal Lala. 

In the peculiar circumstances of this 
case I do not think much significance can 
be attached to the admission then made by 
Bajirao that Mahipal Lala was the tenant 
of the holding. That admission certainly 
cannot bind the present appellant Musam- 
mat Kankai. The judgment in ISuit No. 96 
of 1921 (Ex. D. 5), it is needless to say, is 
not res judicata in the present case, but it 
is nevertheless of great importance. That 
suit was allowed to proceed ex parte by the 
then defendant Mahipal Lala and prima 
facie satisfactory evidence was given to the 
effect that Musammat Kankai and not 
Mahipal Lala was the real tenant of the land 
in question. It is true that in the present 
case the defendant-appellant was foolish or 
ill-advised enough to offer a stupid plea to 
the effect that Mahipal Lala had obtained 
a lease of the land fraudulently. But it 
seems to me perfectly clear on the finding, 
not only of the first Court but also of the 
lower Appellate Court, that Mahipal Lala 
was, in fact, holding the land benami on 
account of the present defendant-appellant. 
The learned District Judge himself remark- 
ed as follows : 

"Although 'there is nothing to show who 
actually paid rent for the holding, I agree 
with the learned Subordinate Judge in 
holding that the facts and the circumstances 
proved in the case clearly show that the 
defendant-respondent was in possession of 
the land in suit all along and that Mahipal 



[9ZI.C. 1928J 

Lala who was her former servant was nomi- 
nally the recorded tenant of the land." 

In spite of this finding the learned Dis- 
trict Judge went on to hold that there was 
no evidence to show that MusammatK&nkai 
was ever the real tenant of the land. It 
iaacit easy, to, understand on the findings 
91 the, learned District Judge who was the 
real tenant, because lie has already held in 
Kis Judgment that Mahipal Lala was only 
the nominal tenant, by which, it must be 
prcd-jmert, he meant that Mahipal Lala was 
holding the tenancy benami on account of 
Musammat , ftankai. On the view taken by 
the District Judge, however, he came to 
the conclusion that tenancy being a personal 
contract and no such contract having exist- 
ed t>Qtween Musammat Kankai and the 
landlord, the latter was entitled entirely to 
disregard her and to accept Mahipal Lala's 
implied surrender of the land. 

For my own part, in the present case it 
seeing to me that one cannot overlook the 
significance of the hirigmcnl and decree in 
Suit No. 96 of 19-JI ,Kx*. D.-5 and D.-G), 
Which definitely feettfe that Musammat 
Kankai as against Mahipal Lala was the 
tfeh&nt of the land in question. In Kutha- 
freritmal ftdjali v, Secretary of State for 
ipdia (1). Ayyar and Wallis, JJ., remarked 
a follows : 

"The Icidiiift authority opposed to this 
vtew 1 s Nand Kishore Lai v. Ahmad Ata 
(2). The decision in thai case that a be- 
namidar i& entitled to sue for land in his 
oWn name is based on the view that the 
legal estate is vested in him. Where the 
le&al estate is vested in the benamidar, he 
is in fact a trustee and as such entitled to 
sue, but we do not think that the effect of 
a purchase of land benami according to 
the practice in this country is in all cases 
to vest the legal estate in the benamidar 
rind constitute him a trustee. For instance 
where, a's often happens, land is purchased 
benami in the name of an infant soil it 
seems impossible to hold that the land is 
Vested in him, as trustee. In the present 
cas& it is found that the benamidar was a 
pecm in the service of th^ real purchaser, 
and \Ve do not think that the mere fact 
that hi t>J(t at the auction, And that the 
grant w*s thatfe By Gove 
name madfe hf in b trustee sb 



KANKAI V. TIKARAM. 

him to sue. 



in his 
entitle 



rh 50 Sfif. 
2 18 A, 
751. 



at pp. 247, 243; 17 M, U J. 174. 
; A. W, N. ^1895) 160; 8 Ind, Dec. (x B.) 



6 



cf. also Petherpermal Chet- 
ty v. Muniandy Senai (3). 

In the present case it seems to me that 
it is, in reality, the plaintiff-respondent who 
has attempted to obtain an unfair nch.-mtnge 
out of the benami transaction. Mahipal 
Lala has disappeared and knowing all 
these circumstances the plaintiff disturbed 
the long continued possession of Musammat 
Kankai or of her son on her behalf. A 
somewhat similar case is that in Radha 
Bullub Gossain v. Kishen Gobind Gossain 
(4) and in the present case it seems to me 
that the real tenant of the land is undoubt- 
edly Musammat Kankai and that she was 
not liable to ejectment. It is true that the 
contract of tenancy is a personal one : cf. 
Sarjerao v. Tukaram (5) and Saiyad Noor 
v. Ramji Patil (6), but in the present case 
Mahipal Lala seems to have been nothing 
more than an alias for Musammat Kankai. 
Nor can it be argued with any degree 
of plausibility that the landlord was un- 
aware of the real position. The defendant 
and plaintiff are related. The plaintiff 
lives close by the village in question and 
must have seen 'Bajirao cultivating th6 
greater part of the land for many years, 
in other words he must have been perfectly 
aware of the benami nature of the transac- 
tion so far as the formal entry of Mahipal 
Lala as tenant is concerned. It eeems to 
me, in the circumstances, therefore, quiU 
unreasonable to urge that Mahipal Lala 
having disappeared the plaintiff- respondent 
was entitled to eject Musammat Kankai 
from the land. It is absurd to suppose that 
the plaintiff was not aware of the result of 
Suit No. 96 of 1921 already referred to. 

For these reasons I am of opinion 
that Musammat Kankai was the real tenant 
of the land and that the landlord must 
have been well aware of the benami trans* 
action under which Mahipal Lala's name 
was inserted as nominal tenant instead of 
the jpamf* of Musammat Kankai, and further 
it seems to ine that it would be contrary 
to both law and equity to allow the landlord 
now to take advantage of this bqnami trans* 
action in the way he desires to do. < 

The ;: :*!.<:.* u-. I decree of the first 
Court w:.'i uw-r iiraiy be restored and 



107, 



(3) 35 C, 551 at p. 558; 12 C. W N 562; 5 A. 
290; 7 C, JL J. 528; 11 Bur. L. R. 108; 10 Bom. L,ij&, 
590; 18 M. L. J. 277; 4 M. L. T 12; 4 L. B. K, 2661,35 

i. A, 98 (P. o).- -r; 

(4^ 9 W. R, 71. 

(5) 4ft Jnd, Gas. 244; 14 N, L, R, 

(6) C, P. L, R, 158, 



KANIZA V. HASAN AHMAD KHAtf. 



of -the lower Appellate Court will be revers- 
ed and a decree will issue dismissing the 
plaintiff's suit. The plaintiff-respondent 
will bear the defendant-appellants 1 costs in 
all three Courts. 

G. K. D. Decree reversed. 



OUDH CHIEF COURT. 

FIRST CiviL APPEAL No. 17 OF 1924. 

November 24, 1925. 
Present: Mr. Justice Ashworth and 

Mr. Justice Raza. 

Musammat KANIZA AND OTHERS 

PLAINTIFFSAPPELLANTS 

versus 

HASAN AHMAD KHAN AND OTHERS- 
DEFENDANTS RESPONDENTS. 

Muhammadan Law Marriage with wife's sister- 
Issue, whether legitimate Child born siv months after 
fasid marriage Presumption of legitimacy fividince 
Act (I of 1X72), s. 112, application of. 

Muhammadan Law does not place union " " \ 
Law does, in two categories, valid and . 
in three catagones of void ab imtio (batil) forbidden 
but not enthely void if consummated (fasid), and 
lastly valid, [p. 83, col 1 j 

Under the Muhammadan Law, the marriage of a 
man to a sister of his existing wife, ia fasid but not 
batil. Such a marriage, though invalid for certain 
purposes, ia valid for the purpose of legitimatizing 
the issue, [p. 82, col 2.J 

Tajbi Abalal v. Mowlakhan Alikhan, 29 Ind Cas 
603, 41 B. 485, 19 Bom. L. R. 300, followed. 

Aiztmnissa Khatoon v Karimunmssa Khatoon, 23 0. 
130, 12 Ind. Dec. (N. s) 87, dissented from. 

Under the presumption of Muhammadan Law, in 
the case of a fasid marriage, a child born on the 
expiry of BIX months of copula is to bo regarded as 
legitimate, [p 84, col. L] 

Section 112 of the Evidence Act cannot be held 
applicable to marriages under the Muhammadan Law. 
At any rate the section cannot have any application 
to a fasid marriage under that law, [p 83, col, 2J 

First appeal from the judgment and 
decree of the Subordinate Judge, Gonda, 
dated the 2lth of November 1923, 

Messrs. M. Wasimand Mahomed Ayub, 
for the Appellants. 

Messrs. Naimullah and Niamatullah, for 
the Respondents. 

JUDGMENT, This first appeal is a 
plaintiff's appeal. It arises out of a suit 
brought by Musammat Kaniza alleged 
daughter and Musammat Chinka alleged 
widow of one Abdul Sattar Khan against 
Abdul Razzak Khan nephew of the deceas- 
ed. The parties are Sunnis(Hanafis). The 
plaint only set up any title on behalf of 
plaintiff. No, 2 in, default of the claim of 



[92 I. 0. 1926] 



plaintiff No. 1 succeeding in part or in 
whole. We shall decree the claim of the 
plaintiff No. 1 in part. So far, therefore, as 
the lowei Court has dismissed the claim of 
plaintiff No. 2 that decision must be up- 
held end her appeal di&miseed. The case 
set up for plaintiff No. 1, that is the daughter, 
is that by a custom in the family of the de- 
ceased the daughter succeeds to her father's 
estate to the exclusion of any collateral, 
and alternatively that in the absence of any 
such custom under ordinary Muhammadan 
Law the daughter is entitled to succeed to 
a moiety as against the nephew. The lowsr 
Court dismissed the plaintiff's suit on the 
ground that her mother was not the legally 
wedded wife of the deceased, and that the 
plaintiff although a daugther of the deceas- 
ed was illegitimate. It also held that there 
was not evideuce to support the allegation 
of the custom set up. 

It is common ground that the deceased 
was married to Musammat Mehrbibi the 
sister of Musammat Chinka, the mother of 
the plaintiff No. 1, and that he contracted 
a second marriage with Musammat Chinka. 
In the lower Court it was maintained 
that the deceased had divorced Musammat 
Mehrbibi before he married Musammat 
Chinka, but this plea was rejected by the 
lower Court and the finding to this effect 
is not impugned in this appeal. It was 
urged, however, and is urged in this appeal, 
that notwithstanding that the deceased 
married Musammat Chinka without first 
divorcing her sister the plaintiff under s. 112 
of the Evidence Act and under Muhammadan 
Law is to be regarded as a legitimate 
daughter. Section*112 of the Evidence Act 
provides that 

" Any person born during the continu- 
ance of a valid marriage between his (or her) 
mother and any man... shall be conclusive 
proof that he or she is the legitimate son 
or daughter of that man, unless it can be 
shown that the parties to the marriage had 
no access to each other at any time when he 
or she could have been begotten." 

For the respondent it ia urged that under 
Muhammadan Law the marriage of a man to 
a sister of hisexisting wife is invalid. For the 
appellants it is urged that such a marriage, 
though invalid for certain purposes is valid 
under Muhammadan Law for the purpose of 
Icgitinmti/.inj; the issue. Inthe case of Aizun- 
niasa Khatoon v. Karimunnissa Khatoon 
(1) it was held by a Bench of the Calcutta, 
(1) 23 0, 130; 12 lad. Dec. (K, .) 87, 



[92 L 0. 1926] 



V HASAN AIlMAD 



83 



High Court that under the Muhammadan 
Law marriage with the sister of a wife 
who is legally married is void, and that 
the children of such ir.-iniiiiro are illegi- 
timate and cannot inherit. This decision 
was considered and dissented from by 
a Bench of the Bombay High Court, Tajbi 
Abalal v. Mowla Khan Alikhah (2) It was 
there held that, Muhammadan Law does not 
place unions as English Law does in two 
categories, valid, and invalid, but in three 
catagories of void ab initio (batil) fobidden 
but not entirely void if consummated (fasid] 
and lastly valid. The Calcutta ruling was 
considered in Ch. VII of Vol. II of Ameer Alfs 
Muhammadan Law, 4th Edition, and reasons 
were set forth at length for holding that the 
decision of the Calcutta High Court was 
wrong. The Bombay ruling agrees with Mr. 
Ameer Ali. The Calcutta ruling is also held 
to be incorrect by Mr. Tyabji on page 162 
of the 2nd Edition of his Principles of 
Muhammadan Law. The effect of the Bombay 
ruling is succinctly expressed by Mr. Ameer 
Ali in the following words : 

"There is a great difference between a 
marriage which is void ab iniiio (batil) and 
one which is invalid (fasid). If a nian were 
to cpntract a marriage with a woman related 
to him within the prohibited degrees, the 
marriage would be void ab initio. Under 
the Hanafi Law, the children of such an 
union would not have the status of legitimacy 
unless the man was wholly unaware of the 
relationship or he was the subject of ghurur 
or deception. For example, if a man were 
to marry a woman related to him within 
the prohibited degrees, on the representa- 
tion that she was not so related, and the 
marriage was consummated, the issue of such 
an union would be legitimate. 

"But it is different in the case of an invalid 
marriage. An invalid marriage is one where 
the parties do not labour under an inher- 
ent incapacity or absolute bar or where the 
disability is such as can be removed at any 
time. The issue of such unions are legiti- 
mate. 

'"An invalid marriage* says the fatawai 
alamgiri is like a valid marriage in some 
of its effects, oe of which is the establish- 
ment of parentage. 1 * 

u ln these cases the six months will run 
from a copula and not from marriage." 

The last line of this passage refers to the 
rule of Muhammadan Law that a child born 

(2) 39 fed. Oas. 60S; 41 B, 485; 19 Bom, L> B. 300. 



after the lapse of six months from marriage, 
or in the case of a fasid marriage, from 
copula, will be deemed legitimate even 
though conception may have taken place 
before marriage. We are not disposed to 
re-hearse again the arguments respectively 
in favour of the divergent views of the 
Calcutta and Bombay High Courts. We con- 
sider that the argument set up by the 
Bombay High Court and by the authorities 
quoted against the Calcutta view, hold the 
field nnd that the Bombay ruling should bo 
followed supported as it is by the views of 
the eminent authorities mentioned. 

We may now consider the application of 
of s. 1*12 of the Evidence Act In the case of 
Hajira Khalun v. Amina Khatyn (3), Mr. 
Justice Daniels expressed the opinion that 
B. 112 was applicable to Muhammadans. 
The contiary view was taken by Mr. Stan- 
yon in a case of the Nagpur Judicial Com- 
missioner's Court, Zakirali v. Sograbi (4), 
Here it is contended that s. 1 12 is applicable, 
and that "valid 11 in that case means any 
marriage which is not batil or void ab initio. 
We are of the opinion that s. 112 of the 
Evidence Act cannot be applicable in any 
way to a marriage which according to the 
Bombay ruling mentioned above is neither 
void ab initio (batil) nor absolutely void but 
is fasid, i. C M irregular, inasmuch as s, 112 is 
based on a division of marriages merely into 
two catagories, and cannot be applicable to 
Mu ham mad an Law which according to the 
Bombay ruling divides marriages into three 
catagories In any case we hold that if s 112 
can be held applicable, then we should have 
to convstrue the word "valid 1 ' in the section 
as "flawless" so that the presumption would 
not. apply to fasid marriages. 

The lower Court followed the Bombay 
ruling as we propose to do and not the 
Calcutta ruling, but it held that the plaintiff 
No. 1 was born before the expiration of six 
months from the marriage of the deceased 
to Ix-r mother, and that, therefore, she could 
not be held to be the daughter of Uusam- 
mcit Chinka Neither in that Court nor in 
this Court does it appear to have been urged 
that even if she could be held to be the 
daughter of Musammat Mehrbibi it would not 
be sufficient for her claim to the property, and 
so it is unnecessary for us to consider this 
point of view. Five witnesses for the plain tiff 
deposed that the plaintiff Np. 1 was born in 
Baisak, that is April-May of the year 1908. 

(3) 73 Ind. Gas, 983; ^1923) A. I. B, (A,) 570, 

(4) 43 Ind, Gas. 683; 15 N. L, K, 1. 



84 , KANIZA t>. HiSAN AHMAD kHAN. 

This evidence was not impugned by cross- 
examination, but the lower Court disbeliev- 
ed it in the face of an admission by Musam- 
mat Chinka made in former criminal pro- 
ceedings. These proceedings were brought 
by Abdul Sattar against his nephew under 
s. 498 of the Indian Penal Code by way of 
pro3ecution of that nephew for his having 
, eloped with Musammat Mehrbibi. Musam* 
mat Chinka was examined in that case and 
deposed as follows : 

"I cannot count. Four months ago I gave 
birth to a daughter. Ten months ago I was 
married to Abdul Sattar. I do not know 
the month that the daughter was born." 

Now this evidence would make the plaint- 
iff No. Ts birth to have occurred in Sep- 
tember or October, that is to say within six 
months of Abdul Battar's marriage with her 
mother. An additional reason for the Sub- 
ordinate Judge rejecting the evidence of 
the five witnesses for the plaintiff was that 
their evidence was clearly false evidence 
BO far as they asserted the fact of a divorce 
between Abdul Sattar Khan and Musammat 
Mehrbibi. . We are not disposed to agree 
With the lower Court on this finding. It 
may be mentioned that the Subordinate 
Judge who wrote the judgment appealed 
against was not the Judge who heard the 
evidence. We are, therefore, in as good a 
position as he was to express an opinion 
on the veracity of the witnesses. The state- 
ment of Musammat Cbinka in the criminal 
proceedings cannot be regarded as an ad- 
misaion. She has not the status of a plaint- 
iff in the case, and her statement cannot 
bind her daughter as an admission. The 
only way in which that statement was ad- 
missible in evidence was as rebutting 
Musammat Chinka's evidence in this case. 
We are prepared to exclude her evidence, but 
there still remains the evidence of the five 
witnesses for the plaintiff. No attempt was 
made as already remarked, to impugn this 
evidence by cross-examination. It may be 
that these witnesses gave false evidence in 
support of the divorce of Musammat Mehr- 
bibi, But as the case stands we think that 
their evidence must be accepted as to the 
month of birth of the plaintiff Up. 1. Accord- 
ingly our finding is that the plaintiff No. 1's 
legitimacy must be held to be proved under 
the presumption of Muhatnmadan Law that 
in the case of a false marriage a child bom 
en the expiry of six months of copula is to 
b regarded as legitimate, 
WQ now come to the question of the 



$81.0.1928] 

custom. The wajib-ul-arz provides that a aop 
and daughter will share equally. There is 
no specific provision that a daughter in the 
absence of a son will exclude a collateral, 
but it is urged that this mugt be, inferred 
from the fact that a daughter shares with a 
son to the exclusion of collaterals,. .We 
agree with the lower Court that the in- 
ference would be a dangerous one. It may 
well be that there is a custom ta give a 
daughter a half share with her brother, but 
it does not follow that the daughter 
should have the whole inheritance in the 
absence of a .brother. Under .ordinary 
Muhammadan Law she, will be entitled, to 
one half as against a collateral.. She will 
not, therefore, be in a worse position than 
that if she had a brother. We do not think 
it safe to infer that she should be in a better 
position. 

We agree with the lower Court that the 
plaintiff No. 1 has failed to j>rove the custom 
set up by her. We also find nothing in the 
wajib-ul-arz that would support the plea 6f 
plaintiff No. 2 that a widow without children, 
i. e> legitimate children, will have prefer- 
ence to a collateral, a point TvhicK wa$ 
remarked above, would only ar&p,. if the 
plaintiff No. 1's claim were to fee ejected in 
toto. In consequence of the abpve findings 
we dismiss the appeal of plaintiff J?o. 2 \yith 
costs. We allow the appeal of rlaii;- iff No. 1 
in part and direct a decree to be (huuii u$ 
securing the plaintiff No. 1 a half sfiajfe in 
the property in suit. The plaintiff No, 1 
is awarded half costs in both Courts, in- 
asmuch as her claim has been allowed for 
half the property. 

It may be remarked tha,t before argu* 
ments ID tMs appeal the ]iinintiiT.-XoH 1 and2 
had arrived at accmpicjnito with defendant 
No. 1, one of tho nine persons substituted 
for the original ilcfiMicliint Abdul fiazzak, 
who died before the hearing of this appeal, 
whereby the defendant No. 1 agreed that 
the plaintiffs Nos. 1 and 2 should get a decre^ 
for one-third of the 8- annas share of Abdul 
Razzak. On our finding the plaintiiT No. 2 
is entitled to nothing, and the plaintiff 
No. 1 is entitled to one-half ,of the ^-ai^a^ 
share as against all the defendants. ,, We 
Are unable in our decree Jo giv flny. Affect 
to this compromise, the comproijns6 staua 
that the defendant Kb; 1 wfcs entifltec} ujudey 
a deed of gift to ond-tHiid o! ffi property 
Abdul Raz&sk,;but,we dp pqt know whether 
the other defendants would admit this, In 



ing 

tw 



If I 0. 1926 J 

<$se under our finding the plaintiff 
1 gets Ofi$ half of the property of Abdul 
safe wliic}i is more tliah one- third. She 
(therefore, suffer from our disregard- 
ifre compromise. Oa the other hand 
defendant No. 1 has given up all that he 
" tliaji ii$ is entitled to. He, therefore, 

Qopaplain pf the decree. 
t|. Appeal allowed. 



MUDALIAR v. SEIEAN'OATH ANN*. 



MADRAS HIGH COURT. 

' pivil APPBAL No. 184 OF 1924. 

September 24, 1925. 
Present: Mr. Justice Phillips and 

Mr. Justice Ramesam, 
IMANI 8ATYANARAYANA AND 
OTHERS DEFENDANTS Nos. 2 TO 5 
APPELLANTS 
versus 
SATYANARAYANA 

AND ANOTHER PLAINTIFF 
ANf) DiiFKN'DANT No. 1 RESPONDENT*. 

Hindu LawDebt, antecedentMortgage-debt of 
father-- Pefsonal liability barred Sons, whether 
oound. 

Any prior mortgage-debt due by a Hindu father is 
valid ancj binding on the sons as on antecedent debt 
whether the psrsonal liability of the father is or is not 
barred. 

1 Gauri Shanker Singh v Sheo Nandan Misra, 78 Tnd. 
Oas. 9U; 45 A,'384r 22 A. L. J 369; (1921) A. J R (A) 
543; L. R. 5 A. 300 div., followed 

[r>,ujrn Chetty v. Muthu Koundan, 52 Ind Gas. 
3'ri, 12 V. 71 1,' 9 L. VV 565; (1919) M W. N. 409, 37 M, 
If. J. 160; 26 M. Lr. T. 96, relied on. 

Appeal against a decree of the Court of 
fhe 8ubordinate Judge, Kistna at Ellore, 
dated the 13th December 1923, in O. S. No. 
93 of 1922. 

Messrs, A. Krishaswamy Iyer and V. 
Govindarajachari, for the. Appellants. 

Mr. N. Rama Rao, for the Respondents. 

JUDGMENT. This is an appeal 
against a decree on a 'mortgage executed by 
the first defendant, father of defendants 
Nos. 2 to 5. The mortgage was executed 
in order to discharge a prior moiluaipMieed 
executed by the first defenJuui iu 190(5, 
Ex. B, the suit mortgage, being Ex. A, 
dited 10:h October 1915. The Subordi- 
nate Judge has given a Decree, holding 
that the mortgage, having been executed 
to discharge an antecedent debt of the 
father, is binding upon the sons* shares, 
and he relies on the Full Bench decision of 
this Cjurfc in Arumugam Cketly v. Muthu 
Koundan (I). 

(I) 52 lal* Oaa. S25; 12 M. 711: 9 L. W. 585; (1919) 
It. fT,J&. iJ% 37 M lu J. 166; 56 L, T. 9$, 



For the appellants it is contended tlra, 
the decision is not applicable, because ;ji 
the present case a portion of the previous 
debt coujd only be enforced as a mortgage 
debt and not as a personal debt of the 
father. This question has not been con- 
sidered in the lower Court and it is not at all 
clear whether the personal liability is barred 
or not in respect of the first three instal- 
ments. Whether it is barred or not, how- 
ever, the case can be disposed of on another 
ur- , 1 T 1 as definitely been held in 
'/ si . Singh v. Sheo Nandan Misra 
(2), that a - ' ' whether the 

personal liability is barred or not, is an 
antecedent debt binding on the sons' 
shares, Thia same principle has been 
adopted in Arumugam Chatty v, Muthu- 
Koundan (1), and although it maybe said 
that in that case the personal liability had 
not been barred and that, therefore, the de- 
cision is not strictly in point, yet in view 
of the form of the questions propounded 
by the Referring Bench it is clear from the 
judgment that the first of the questions was 
dealt with as a general question, anqi in 
effect the decision of the Full Bench is that 
any prior inorlgaije-debt due by the father 
is valid as an antecedent debt, and tfcis 
decision is not qualified by any expression 
of opinion that the mortgage-debt must 
also be enforceable as a personal liability. 

We, therefore, follow ithese two cases and 
dismiss the appeal with costs. 

Time for redemption is extended to hree 
months from this date. 
v. N. v. Appeal dismissetf. 

N. H. 

(2) f8 Ind. Gas 911; 46 A. 384; 22 A. L. J. 360, (1024) 
A. I R. (A,) 513; L. R. 5 A. 306 Civ. 



PRIVY COUNCIL. 

CONSOLIDATED APPEALS FROM THE 
HIGH COURT. 
April 2, 1925. 

Present: Lord Shaw, Lord Carso 
Blanesburgh, Sir John Edge ai 

Ameer AH. 

VAlTHIALINQA MUDALTAR AND OTHERS 
APPELLANTS 

versus 

SRIRANQATH ANNI AND OTHERS 
RESPONDENTS. 

Hindu Law Widow, position of Decree obtained 
against widow, whether binding on reversivners 
Adverse possession against widow, whether adverse to 
rerwnoner Limitation Act (IX of 1871), Sch, II \ Arf. 
J2P, application of* 




VA1THIALINOA MUDALIAR V. 8RIRANGATH ANNI. 



A Hindu widow in possession of the estate of her 
deobased huaband represents the estate in suits 
brought by her or against her for possession of the 
( estate or anj r part of it, and she and the reversioners 
are equally bound by any final decree which a Court 
makes in such a suit provided thai the suit was fought 
out according to Jaw and was not collusive or fraudu- 
ent. [p. 88, col, 1.] 

Article 129 of Sch. II to the Limitation Act of 1871 
applied to all suits in which the plaintiff could not 
succeed without displacing an apparent adoption by 
virtue of which the defendant was in possession and 
where, before the repeal of that Act, the defendant's 
title had, owing to the afflux of time, become unassail- 
able, the repeal of that Act would not revive the right 
of any reversioner to the estate to question the validity 
of the adoption under h which the defendant claimed, 
[p. 93, col. 1.] 

Semble. A Hindu widow fully represents the estate 
of her deceased husband and adverse possession which 
bars her bars the heirs after her. [p. 88, col 2 ] 

Consolidated appeals from a decree of 
the Madras High Court (Sir John Wallis, 
Kt., Chief Justice, and Mr. Justice Btirn), 
dated the 15th November 1916, printed as 41 
Ind. Gas. 546, modifying that of the Subor- 
dinate Judge, Negapatam, dated the 4th 
September 1908, inO. S. No. 26 of 1905. 

Sir G. Lowndes, K C., Messrs. W. Wallach 
and M. R. R. Pillai, for Vaithialinga Muda- 
liar and others. 

Mr. J. M. Parekh, for Srirangath Anni 
and others. 

Messrs. L. De Gruyther, K. C., and K. V. 
L. Narasimham, for Somasundaram (Jhefc- 
tiar and A. Rangasami Chettiar. 

JUDGMENT. 

Sip John Edge. These are nine con- 
solidated appeals from a decree, dated the 
15th November, 1916, of the High Court at 
Madras, which varied a decree, dated the 
1th September, 1908, of the Subordinate 
Judge of Nagapatam. 



[92 I. 0. 1926] 

The suit in which these appeals have 
arisen was brought ill the Court of the Sub- 
ordinate Judge on the 2nd July, 1905, by 
three plaintiffs, who were reversioners of 
Arunachala Mudaliar, against thirty-eight 
defendants for the possession of lands which 
were alleged by the plaintiffs to be lands of 
the Kulikara estate in the District of 
Tanjore and for mesne profits. The title 
of the plaintiffs to sue was denied by the 
defendants on various grounds, of which 
those which are now important and have 
to be considered are whether the suit was 
not barred by the result of a litigation 
which began in 1887 and ended with a 
final decree in 1892, and whether the suit 
was not otherwise barred by the law of 
limitation. 

The Kulikara estate admittedly belonged 
to Arunachala when he died in 1849 He 
was then about 22 years of age. The 
family to which he belonged were Hindus 
of the Sudra caste He had been adopt- 
ed by Vithialinga Mudaliar, a relation, 
who was descended from an ancestor from 
whom Arunachala also was descended. 
The plaintiffs are the three sons of Chok- 
kappa Mudaliar, who was the youngest of 
three brothers by birth, that is, natural 
brothers, of Arunachala. Arunachala died 
childlefes, leaving a widow, Chokkammal, \iho 
died on the 25th December, 1902, within 
12 years before this suit was instituted. 
She was a defendant to the suit with which 
the litigation of 1887 commenced. It will be 
necessary to refer at some length to that 
litigation. The following pedigree will 
show Arunachala and his natural brothers 
an d, some other persons: 



Arunachala, 

died in 1849, 

leaving a widow, 

Chokkammal, who 

died 25th December 

1902. 



Kalianasundaia, 
di5d in I860* or 
1867 



AlaguBundara, 

adopted by 
Chokkammal, validity 
of adoption disputed, died in 
1864, leaving a widow, Murugathal, 

4th defendant, who adopted 
Thiagaraja, who died in 1881, 
leaving a widow, who died in If 82. 





rii.ViJi|-p. 

who uieti in 1MJ4 



Bavakrishnasami, 

an ascetic, died 12th 

October 1903, leaving a 

widow, Srirangath, 1st 

defendant. 

, i 



Thiagaraja, 

adopted by Murugathal, 

validity of adoption 

disputed. 



f 

eon, 
1st plaintiff. 



C 



son, 
2nd plaintiff 



I 

eon, 
3rd plaintiff. 



Ind defendant, 
a daughter. 



3rd defendant, 
a daughter, 



[92 L 0. 1926J 

Arunachala, as whose reversioners the 
plaintiffs claim to be, had before his death 
directed his wife Chokkammal to adopt as 
a son to him his natural brother Alagusun- 
dara. In 1882 Chokkammal did as a fact 
adopt Alagusundara as a son to her late 
husband Alagusundara was a younger 
natural brother of Arunachala, and at the 
time of the adoption there was no one living 
who could give him in adoption, As a 
matter of Hindu Law the adoption was 
invalid. 

In 1862 Chokkammal, having adopted 
Alagusundara, put him in possession of the 
immoveable property now in question, re- 
serving to herself for her maintenance 
some of the immoveable property to which 
she was entitled as the widow of Aruna- 
chala. With the property which she reserv- 
ed for her maintenance this suit is not con- 
cerned. There can be no doubt that in 
1882 Chokkammal did put Alagusundara 
in possession of the property now in ques- 
tion. In March, 1862, she presented an 
undated petition to the Tahsildar of 
Nannilam, the Revenue Officer, in which 
she stated that, with the consent of her 
husband, she had adopted Alagusundara, 
his natural younger brother, and, with the 
exception of certain villages which she 
named, she had made him proprietor of all 
the land and other properties, etc., stand- 
ing in her name, and prayed that, with the 
exception of the three villager, "the miras" 
(ownership) might be transferred to him 
and all the sircar proceedings might be 
passed in his name. 

Alagusundara continued to be in posses- 
sion of the property of which Chokkammal 
had put him in possession in 1862 until he 
died in 1884, and had dealt with the pro- 
perty which had been transferred to him as 
an absolute owner would have done. Upon 
his death in 1864 his elder brother Kaliana- 
sundara, on the 18th July, 1864, presented 
a deed of consent to the Tahsildar of 
Nannilam praying for* the transfer to the 
name of Thiagaraja of the property which 
stood in the name of Aluir:- 1 ;:: i-ini. and the 
miras was transferred to him. Tniagaraja 
was by birth a son of Kalianasundara and 
had been adopted by A'. :i* .- , . :<i' i He 
was in 1884 about two years of age. 

From the 18th July, 1884, Kalianasundara, 
until he died in "September, 1876, was 
referred to in all documents relating to the 
property as the guardian of Thiagaraja ,who 
in possession of the property in ques- 



VAlTfllALINaA MUDALTAR V. 9RIRANGATH ANNI. 



87 



tion from 1864 until he died in 1881, and 
during that time the management of the 
affairs of the family was carried on solely in 
his name. Upon the death of Thiagaraja 
in 1881 the miras which had stood in his 
name was altered to the name of his widow 
Kamalath, a girl of about 12 years of age, 
who died in 1882. Upon the death of 
Kamalath in 1882, Murugathal, the mother 
by adoption of Thiagaraja, took possession 
of the property in question for a Hindu 
widow's interest and held it until 1884, 
when Chokkammal forcibly ejected her. 

On the 9th February, 1887, M ..; ' .' 
brought a suit in the Court of tl ** : 
nate Judge of Negapatam against Chok- 
kammal and others, in which she claimed 
a decree for the possession of the properties 
now in question, alleging in her plaint that 
her husband Alagusundara had been the 
adopted son of Arunachala, and that the 
properties which she claimed belonged to 
him as such adopted son, and had been 
enjoyed by him from 1862 until he died 
in 1864; that after his death her adopted 
son Thiagaraja had enjoyed them until he 
died in 1831, and after him his widow, 
Kamalath, got them according to Hindu 
Law and she died childless in 1882, and 
since her death she, M-miiMthal. got them 
under Hindu Law and enjoyed them until 
1884, when Chokkammal forcibly took pos- 
session of them and enjoyed them adversely 
to her. Chokkammal in her written state- 
ment in that suit denied Murugathal's title, 
alleged that she, Chokkammal, had been in 
possession of the property in question for 
38 years from the death of her husband 
Arunachala in 1849, and denied that Alagu- 
sundara had been adopted. Several issues 
were framed by the Subordinate Judge in 
that suit who found that Alagusundara 
was adopted as a son to Arunachala in 
1862 by Chokkammal, who had the author- 
ity of her husband to ^make the adoption, 
that the adoption was invalid according to 
Hindu Law, that Thiagaraja was adopted by 
Murugathal under the authority of her 
husband, but that the course of conduct of 
Chokkammal and the change of position of 
Alagusundara as the result of his adoption 
made it inequitable to hold that he had not 
title to the property, and that the putting 
him in possession of the property in ques- 
tion and allowing him to manage it for 
his own purposes substantially operated as 
a gift of the property to him The Subordi- 
nate Judge in that suit also held that 



88 



MUDALUR V. SBlR^GATtf 



Murjjgathal's claim of adverse possession 
of the 'mirks for 12 years was establish- 
e<J, and on the 18th December, Ifcb9, he 
gave her a decree for possession of the pro- 
perty which she claimed. From that decree 
of the Subordinate Judge the suit of 1887 
went on appeal by Chokkammal to the High 
Court at Madras. The learned Judges of 
the High Oouft held that Ajigj^indam's 
adoption was invalid, but Lol'iintf ihai 
M. 11 1 1 if a! !. ill's plaim of adverse possession 
for 12 years was established by Iheir 
decree of the 17th August, 1892, dismissed 
ChokkammaVs appeal, Chokkammal did 
not appeal from that decree of the High 
Court, and it became final. 

It is necessary to consider what was 
ChokkammaFs position as a Hindu widow 
and how far her acts could, according to 
Hindu Law, bind the reversioners to her 
husband. On Arunachala's death in 1849 
she became entitled to the full beneficial 
enjoyment of the estate which had been his 
at the time of his death. As Mr. Mayne, 
ip para, 605 of his "Hindu Law and Usage," 
correctly, in their Lordships' opinion, said: 

"It was at one time common to speak of 
a widow's estate as being one for life. But 
this is wholly incorrect. It would be just 
as untrue to speak of the estate of a father 
under the Mitakshara Law s being one for 
life. Hindu Law knows nothing of estates 
for life, or in* tail, or in fee. It measures 
esfates, not by duration, but by use. The 
restrictions upon the use of an estate in- 
herited by a woman are similar in kind to 
those which limi,t the powers of a male 
holder, but different in degree/ 1 

'fhje Hindu widow has not power to make 
a gift of 'the estate. Panning ov,er the pos- 
session ojf the epta.te to a son w^om she has 
yalidly adopted to hjer deceased husband 
is not piakii^g a gift of the estate to him. 
Ttye eatate became his on his adoption if 
lie 'was validjy adopted. She has no power 
to seH or assign the estate except for neces- 
sity, so a$ to bind her husband's rever- 
sioners after her death. But she represents 
the e^jtate in suits brought by her o? against 
her for possession of the estate or any part 
of ij;, apd she and the reversioners are 
equally bound by any final decree which 
a Court makes in such a suit provided that 
the suit was fought out awo.-.fintf to law 
and was not collusive or fraudulent. 

In the suit of 1837, Chokkammal was no 
doubt personally interested to defeat Muru- 
gathal * claim for the possession of lands 



[9? I. 0. 



which had been in her own possession as 
the widow of Arunachala from 1849 untiji 
1862, but although her object in resisting 
MurugathaTs claim was probably a purely 
personal and selfish object, she did, "in 
fact and in law in that suit, represent the 
estate as well as her own interests as' a 
Hindu widow. The suit of ' 1887 was pot 
a collusive suit ; it was regularly an ( <i $e- 
cor^ing to due piorctlu'c lit law foughjb out 
in the Court of s-u i S ^..pirna!-, 1 Judg^ nd 
in the High Court. 

A protracted argument ,wa.^ submitted jto 
the Board on the question whether under 
Hindu Law adverse possessiop against a 
widow in possession of an estate lor a 
Hindu widow's interest bars the rever- 
sioner. While it is not necessary in the 
view which will later be announced by the 
Board on the question of limitation in this 
case to make any formal pronouncement 
upon this point, it may be copvenient' to 
say that the authorities referre'd to were as 
follows : In Goluckmonee Dabee v. Degum- 
ber J)ey which was decided in 1852, 
Sir Lawrence Peel, who was the Chief Justice 
of the Supreme Court at Calcutta, said : 
"It has been invariably considered for 
many years that the widow " (speaking of 
the widow as heir) "fully represent^ jth,e 
estate, and it is also settled law that ndyerse 
possession which bars her bars th$ heir 
also after her, which would not be the case 
if she were a mere tenant for life, as known 
to the English Law." [See the reference 
to that case in the judgment of i;r Barnes 
Peacock, 0. J., in NobinChunderCfiukerbutty 
v.Issur Chunder Chukerbutty (l). 

Iji Katama Natchier v. ftaja of Shiva- 
gunga (2), which was ,deQi4$d by tji t e IJoard 
in 1863, the 3o^d, consisting 9! 'Kpigfjit 
Bruce, < J., ir Edward Ry$n, arid T,ur#f f, 
L. J., the assessors being Sir La\ 
Pjeel and Sir James W. CoKilo, all 
eminent lawyer^, apd tbre,^ of them 
had judicial experience in India, Lor 
Justice Turner delivered the coi^idc-r 
judgment of the Board, anol in i; ssjid, ^l 
page 603*, as foUpw$ : 

'-'It seems, however, Jo bs nec p e^,ar,j r , iln 
order to determine the #ip<je n whicft fyfa 
appeal ought ,to be disposed of, to copsicfer 
the question whether the decree of 1$47) ijf 
it had become final ip Anga Moptoo 



(1) 9 W. R. 505 at p. 507; B. L. R Sup. Vol. 1008. 
9 M. I. A. 539; 2 W. R. F. 0. 31; i Suth. P. C. J. 



. . . . . . . 

530. 2vSar. K C. J. 25; 10 K. K. 843. 
'Tage of 9 if. I A. [fii.] 



[92 1. 



J4UDALIAR V. 



ANNI. 



80 



, r , v lifetime, would have bound those 
claipaipg the semindari in succession to her. 
And th^ijf Lordships are of opinion that, 
unpegs it could be shown that there had not 
been a fair trial of the right in that suit 
or, in other words, unless that decree could 
haye bsen successfully impeached on some 
special ground, it would have been an 
effectual bar tp any new suit in the Zillah 
Court by a#y person claiming in succession 
to Anga Mootoo Natchier. For.n.^-imin^her 
to b0' enjiijed tp the zemindari at all, the 
whole egtftte would for the time be vested 
in her, absolutely for some purposes, though, 
in som# respects, for a qualified interest ; 
and until her death it could not be ascer- 
tained who would be entitled to succeed. 
The same principle which has prevailed in 
the Courts of this country as to tenants in 
tail representing the inheritance, would 
seem to apply to the case of a Hindu widow, 
and it is obvious that there would be the 
greatest possible inconvenience in holding 
that the succeeding heirs were not bound 
by a decree fairly and properly obtained 
against the widow." 

The declaration as to Hindu Law which 
their Lordships have quoted from the con- 
sidered judgment of the Board, which was 
delivered by Lord Justice Turner in 1863, 
has in the present appeal been objected to 
on the ground that it was obiter. The 
following cases, however, were referred to 
as showing that the doctrine there set forth 
was in accord with the course of judicial 
decisions. 

Their Lordships will first refer to the 
case Nobin Chunder Chuckerbutty v. Issur 
Chunder Chuckerbutty (I) which came be- 
fore a Full Bench of the Calcutta High 
Court, 1867, in which the declaration of the 
Board in the Shivagunga's case (2) to which 
their Lordships have referred was accepted 
as a correct statement of the Hindu Law to 
which it related and was applied to the 
case before the Full Bench, The facts of 
the case before the Full Bench are not fully 
stated in the order of reference to the Full 
Bench, but they were as follows : One 
Ramdoollub Chuckerbutty died possessed 
of an estate consisting of lands leaving two 
sons, two daughters and his widow, Dhone 
Mala. The two sons died Without issue in 
the lifetime of the widow, and upon their 
death the widow, Dhone Mala, became 
entitleqi to the possession of the Respective 
estates of the sons, but the defendant in 
that suit, a stranger, and *s a 



took possession of the estate more than 
12 years before the suit, and the widow 
never obtained possession. Upon the death 
of the widow, sons of the daughters, who 
were the reversion ers to their uncle's estate, 
brought the suit for possession, which was 
before the Full Bench in second appeal. 
The first Appellate Court had dismissed 
the suit as not brought witlxin time, 
that is, within 12 years from the time 
when the defendant had wrongfully tak^n 
possession, and the question before Ihe 
Full Bench was whether the suit was barred 
by limitation or whether the reversioners 
could sue upon the death of the widow, 
Dhone Mala. The Full Bench held jthajb 
the cause of action arose when the defend- 
ant had taken possession and that the suit 
was time-barred. The Full Bench was an 
exceptionally strong Bench of Judges, who 
had much experience in cases involving 
considerations of Hindu Law. Their Lord- 
ships will give extracts from the judgments 
which were delivered in the Full Bench, as 
those judgments appear to their Lordships 
to confirm the declaration as to Hindu 
Law which they have quoted from the judg- 
ment of the Board in the ShivagungcC s case(%) 
and to have a direct bearing on the appeal 
before the Board, and ate very instructive. 

In delivering his judgment in that Full 
Bench case, with which 8e ton-Karri J-> con- 
curred, Sir Barnes Peacock, C. J., after 
referring to Sir Lawrence Peel's judgment 
already mentioned, said : 

" It was also held by the Privy jOo.uncil in 
the Shivagungci s case (2) that in the absence 
of fraud or collusion, a decision against a 
widow, with regard to her deceased hus- 
band's estate, would be binding upon ihe 
reversionary heirs. ... If the female 
heir in the present case had sued the wrong 
doer, and, without fraud or collusion, had 
failed to make out her case to turn hini 
out of possession, the reversionary heirs 
would have been bound by the decision. I 
am assuming that they are not claiming 
through the female heir." 

Farther on Sir Barnes Peacock, said : 

"It is said that the reversionary heirs 
could not sue (for possession) during the 
lifetime of the widow, and that, therefore, 
they ought not to be barred by any adverse 
holding against the widow at a time when 
they could 1 hot sue. But when we look at 
the widow as a representative, and see that 
the reversionary heirs are bound by decrees 
relating to her husbaacTs estate which 



90 

obtained against her without fraud or 
collusion, we are of opinion, that they are 
also bound by limitation, by which she, 
without fraud or collusion, is barred." 
Jackson, J., in his judgment, said : 
44 1 entirely concur in the opinion of the 
Chief Justice that the plaintiff (the rever- 
sionary heir) was barred in the present 
case. ... It has been distinctly held by 
the Privy Council in the ShivagungcCs case(2) 
that a decision fairly arrived at without 
fraud or collusion in the presence of a 
Hindu widow in possession of the estate 
will bind reversionary heirs. That being 
so decided, it appears to me impossible to 
escape the conclusion that an adverse pos- 
session which barred the widow will also 
bar the heirs, and in that opinion we are 
fully and strongly supported by the deci- 
sions of the late Supreme Court in the case 
to which his Lordship the Chief Justice 
has referred. 11 

Phear, J., in his judgment, said: 
" I too desire to avoid pledging myself to 
all the illustrations which have fallen from 
the Chief Justice; but with this exception, 
I concur entirely in the reasoning which 
he has given in support of his conclusions, 
and I concur also in the remarks which 
have been made by Mr. Justice Jackson. 
I will add that it seems to rne that, when 
a reversionary (Hindu) heir succeeds to 
the property of his ancestor on the death 
of an intervening female heir, he takes 
substantially the same proprietary right as 
she enjoyed, and no more, though, dou btless, 
she was fettered in a way that he is not, 
with regard to the dealings with the pro- 
perty, viz., her alienations are often liable to 
be avoided by him when he succeeds to the 
right of succession. 11 
Macpherson, J., in his judgment, said : 
" I also concur in the proposed answer. 
But a very great difference exists between 
the case immediately before us, and the 
case in which a mother (or other Hindu fe- 
male having an estate similar to that of a 
childless widow) has herself alienated pro- 
perty belonging to the estate which she 
has taken as heiress, without sufficient 
reason for making such alienation. In the 
latter case, the alienation is good as against 
her, and so far as her own life-interest is 
concerned. Therefore, in fact, no cause of 
action necessarily arises at all with respect 
to her alienation so long as she lives. The 
cause of action does not arise until her 
death, when the reversioner's cause of 



VAITHULIN3A MODALUR V. SRIRAKOATH ANNt. [92 L 0. 1926] 

action for the first time accrues. In the 
case before us, the property having never 
reached the hands of the mother (the Hindu 
widow) at all, having been throughout held 
adversely to her, the cause of action (of the 
reveraioner) accrued in the mother's life- 
time, and, therefore, a suit to recover pos- 
sesion, by whomsoever it may be brought, 
is barred, unless instituted within 12 
years from the commencement of the ad- 
verse possession." 

In Aumirtolall Bose v Rajoneekant Mitter 
(3), the decision of the Full Bench at 
Calcutta in Nobin Chunder Chuckerbutty 
v. Issur Chunder Chuckerbutty (1) was 
cited in argument, and Sir Barnes Peacock, 
in delivering the j udgment of the Board, 
affirmed that decision. 

In Jugul Kishore v. Jotindro Mohun 
Tagore (4), which was before the Board in 
1884, where a Hindu widow's right, title 
and interest in property had been sold in 
execution of a money decree, the Board, 
without a suggestion of dissent from the 
ruling, said, at page 73*. " It was held in 
the Shivagunyzs case (2) that although a 
widow has for some purposes only a partial 
interest, she has for other purposes the 
whole estate vested in her ; and that in a 
suit against a widow in respect of the estate 
the decision is binding upon the rever- 
sionary heir." " The Board also said : 

"If the suit is simply for a personal 
claim against the widow, then merely the 
widow's qualified interest is Hold (in execu- 
tion of the decree) and the reversionary 
interest is not bound by it (the sale). If, 
on the other hand, the suit is against the 
widow in respect of the estate, or for a 
cause which is not a mere personal cause of 
action against the widow, then the whole 
estate passes." 

In Pertabnarain Singh v. Trilokinath 
Singh (5) which was before the Board in 
1884, the Board, said, at page 207* : 

"It is sufficient for the present purpose 
to hold that, until, she had appointed 
another to be owner and representative, the 
Maharanee's estate in the taluk was suffi- 
cient to constitute her the full representa- 
tive of it in the former suit. Her estate 

tt) 2 I. A 113, 2.3 W. R. 214; 15 13. L. R. 10; 3 fiar 
P. O.J.430;3Suth.P. 0. J.94. 

(4) 11 I. A. 66; 100. 985, 8 Ind. Jur. 455 4 fcfcr P 
0. J. 55.3, 5 Ind Dec. (N. s.) 657 (P. 0.). ' ' 

(5) 111 A. 197; 11 G 186; 8 Ind. Jur 697; 4 Sar P 
O. J. 567; Rail que and Jackson's P.O. No 86- 5 Ind' 

Deo. (N._s)8S3(P. C; ' * 

~ *Pa0es of U I, A, [Ed.] ~~ "~ 



[921 0. 1926] 



VAITHIALINGA MUDALIAR V. SRIRANOATH ANMI. 



91 



was at least as large as that of a Hindu 
widow in her husband's properly. What 
was said by this Board of the widow's estate 
in the Shivaganga's case (2)is applicable to 
hers." 

In Hari Nath Chatter ji v. Mothurmohun 
Goswami (6) which came before the Board 
in 1893, it was held that the rule in the 
Shivaganga's case (2) to the effect that an 
Adverse decree against a Hindu widow 
binds those claiming in succession applies 
equally to the case of the daughter. It 
had been argued in that case that the ad- 
verse title alleged was founded on some- 
thing which was independent of limitation, 
and that the Limitation Act XV of 1877 
let the reversionary heir sue within 12 years 
from the time when his right to pos- 
session accrued. With reference to that 
argument, Lord Watson, at page 188*, 
said : 

^" But you must show that thte new law 
gives a right of action to the reversioner not- 
withstanding that the widow's right of 
possession has been extinguished by decree " 

Owing to the fact that it did not appear 
from the judgment of the Board when 
Pearimoni, who was the second wife of 
Ramanundun Goswami, had died, beyond 
the fact ithat'she was living when he died 
in 1847, there was some hesitation in re- 
ferring to that case in the argument of 
this appeal. Mr. De Gruyther has, how- 
ever, shown from the appeal recorr) of 
that case, which is preserved in the Privy 
Council Office, that Pearimoni died in 
1855. 

In Risal Singh v. Balwant Singh (7) which 
was before the Board in 1915, Ghaudhari 
Risal Singh, alleging that he was the re- 
versionary heir of Jagat Prakash Singh, 
brought a suit against Bulwant Singh for 
possession of immoveable properly known 
as the Landhaura estate. The property 
there claimed had belonged to Raja 
Raghubir Singh until he died childless in 
1868. Raghubir Singh left a widow, Rani 
Dharam Kunwar, who bore to him a pos- 
thumous son, Jagat Prakash Singh, who 
died in 1870, Rani Dharam Kunwar had 
the authority of her husband to make 
successive adoptions. In 1877 she adopted 



(6) 20 I. A. 183; 21 0. 8; 17 Tnd. Jur. 481; 6 8ar. P. C. 
J.334; lOInd. Dec. (N. a.) 638 (P, 0.). 
(1) 48 lad. Gas. 553; 45 I. A. 168; 28 L. J. 519; 



24 M. L. T. 361; 40 A. 593; 9 L. W, 52; 23 0. W. N. 
326; (1919) M, W. N. 155; 36 M. L. J. 597; 21 Bom. L. 
Bjll (P/QJ 

"Pago of 20 I. A,-~[#c*.] " 



to her husband a boy who died within three 
years after he had been adopted, and then 
she adopted another boy, who died in 1855, 
and in Iti90 she adopted Bulwant Singh, 
the defendant to the suit. She continued 
in possession of the property, alleging that 
her husband Raghubir Singh had by his 
Will left it to her for her life. After a time 
Rani Dharam Kunwar and Bulwant Singh 
quarrelled. She was claiming a right to 
manage the property during her life ; he 
was claiming his full rights as an adopted 
son. The result was that, on the 7th January 
1905, Rani Dharam Kunwar brought a 
suit in the Court of the Subordinate Judge 
of Saharanpur against Bulwant Singh, in 
which she claimed to have it declared that 
she had no power to adopt Bulwant Singh 
and had never validly adopted him, and to 
have her registered deed of adoption, in 
accordance with which she had adopted 
him, declared void and ineffectual against 
her. He alleged that Rani Dharam Kunwar 
had power to adopt him, and had validly 
adopted him. The Subordinate Judge, 
holding that Rani Dharam Kunwar was 
estopped from denying that she had validly 
adopted Bulwant Singh, dismissed her suit. 
She appealed to the High Court at Allah- 
abad, and the High Court, also holding 
that Rani Dharam Kunwar was estopped, 
dismissed her appeal. Thereupon she ap- 
pealed to His Majesty in Council. The 
Board in that appeal considered the evidence 
in that suit, and having come to the con- 
clusion that Rani Dharam Kuuwar had 
validly adopted Bui want Singh and that 
her appeal should be dismissed, advised 
His Majesty accordingly. In the judgment 
the Board, at page 178*, said : 

'There can be no doubt, in their Lordships 1 
opinion, that Rani Dharam Kunwar in her 
suit against Bulwant Singh did, notwith- 
standing the personal estoppel under which 
she labfired, represent tlie estate on the 
question of fact as to whether Bulwant 
Singh had or had not been validly adopted, 
and that she represented the estate within 
the meaning of the rule in Katama Natchier 
v. Raja of Shivagunga (2). The principle 
of law to be applied in such cases was, their 
Lordships consider, correctly summarized 
by Banerji, J., in his judgment in this 
case, thus: * Where the estate of a deceased 
Hindu has vested in a female heir, a decree 
fairly and properly obtained against her 
in regard to the estate is, in the absence of 
~~*Jage of 45 I. A, [Ed] 



i 0. 



fjpud or collusion, binding on the rever- 
sionary heir.' It cannot be said that there 
had nojb been a fair trial by the Board in 
1912 pf the right in the suit of Rani Dharam 
Kunwar against Bulwant Singh. The right 
in that suit was his right to the estate as 
a son validly adopted to Kaja Raghubir 
Singh/ 1 

tlpon the other side it was asserted 
the principle of the Shivagunga's case (2) 
might have been applied and had not been 
applied in the case of Runchordos Vandra- 
vandas v. Paravatibai (8) which came 
befojre the Board in 1899 The suit in 
that case, ^ as brought on the 21st Decem- 
ber, 18H, against Vandravandas and the 
Advocata-General of Bombay by Curson- 
das Oovindjee as the heir at-lawof Kallianji 
Sewji, who had died on the Gth January, 
18S9, leaving two widows Cooverbai, who 
(Jied in 1871, and Nenavahoo, who died in 
1888. Kallianji Sewji had made a Will, 
which wes proved on the 2nd March, 1&G9, 
by jthree executors, who were trustees, of 
whom the first defendant to the suit was at 
the date of th6 suit the sole survivor. The 
three trustees were appointed by the testator 
as trustees for dharam that is, to make 
gifts for charitable or religious purposes. 
The Will contained the following clause : 
''As to the estates which have been given 
by me to my wives, they are to enjoy the 
rant of the said estates during their natural 
lives, and on the death of my wives the 
said estates are to revert to my dliaram, 
an4 whatsoever income may be derivable 
from the said estates is to be expended for 
my dharam" The main question in the 
suit was whether the gift for charitable or 
religious purposes weis void for vagueness 
and uncertainty, and the High Court at 
Bombay and the Board in appeal held that 
it was void and that the trustees took no 
interest under the Will. The suit was brought 
after the death of Nenavahoo. 

It appears to their Lordships that part 
pf the property claimed by the reversioner 
bad been property of the respective widows 
as their stridhan, as to which there was 
some question as to the "rights of the heir" 
and that other parts of the property claimed 
was property which had been in the pos- 
session of the widows, to which the rever- 
sionary heir, the plaintiff, in the ordinary 
course, was clearly entitled, and that 

(8) 26 1 A. 71; 23 'B. 723, 1 Bom L. R. 607; 3 C. W. 
N.621; 7Sar,P.C,J. 513; 12 Ind, Dec, (N. &) 4*5 



the Board was considering Jjpw an. 
which the Courts Wpvy had 
to' be prepared, should >e yp*4e4 s . 
to show those two classes of propeily. 

The defence of limitation was raised, but 
the Board held that it did not apply', &y* 



il lt is not necessary to consider what 
might be the case if the Widows or* th'ej 
survivor of them were suing, 9-9 (he plaint- 
iff does not derive his right froni or through 
them, and the extinguishment oflTS^ii 1 light 
would not extinguish his." 

It has been nirtintniijed that the Board 
was not intending to discredit tnte rule in 
the Shimgunga's case (2). What the BoaW 
was considering was the wording of ait 
account which the Appellate Court and th$ 
first Court had ordered to be prepared. 
The judgment of the Board was 'delivered 
by Sir Richard Couch in 1899, who jn^l&93 
had delivered the judgme:^ T^ ' 

in Hari Nath Chatter ji' y. '' " ( ' 
Goswami (6) which expressly approved of 
and applied as sound Hindu Law 'the yule 
in the Shiragun^s case (2). What tojas said 
by the Board in 1899 at the rovl'i-ioh of the 
judgment makes it plain what the Boarcf 
was ^m-si'ioring It is ther* said ' 

" The decree of the first 
27the July, 1898, should 
varied as it has been. It is 
of the moveable property lc v ,00 

and Nenavahoo at the time x their d< 
distinguishing between efacn of it a's w$a 
their stridhan and 4 as such ' formed part o; 
the estate of thp testator. 'As suc'Ji' .uproars 
to be an error for* such as, Uith -^ 



the 
beeii 



alteration their Lordships think th$ 
will be right. 11 l f 

As altered by the Board the Account 
which was to be taken was nua:coiinl 6f Jih| 
moveable property left by ^ vrrMi ^..^ 
Nenavahoo, the widows of th;- - :) i ' *"'* 
respectively at the time of theit deaths 
distinguishing between suck of the \$ard 
pr perty as was the stridhan p^ the saitl 
Cooverbai and Nenavahoo and s'uch aj 
formed part of the estate of Jbhe f aid testator. 

It does not appear to their J-oidBlups 
how the rule iu tto Shivagunga 8 caseU)* 
could have been applied ia the case then 
before the Board. Wfiat the Buard, at x thfe 
stage of the suit which Wa Jhea bfijbte JIM 
Bo-ird, the Board having de<Hde4 
th* tnnt to the trustee^ 
was what was the aowonb 



f 92 1. a. 1926] 



VAIfttULtNGA MDDALUB V, SRIRANGATH ANNL 



93 



|akeu, and the Board directed that the 
account should separately show what had 
been the stridhan of the widows, and what 
w^s the property to which the heir might 
ordinarily be entitled. Their Lordships are 
unable tp- see what, was the estate, within 
Ijlie meaning of the Shivagung's case (2) 
which the widows had represented, or to 
what the ^ule in the Shivagungas case (2) 
could Jiave been applied. The title of the 
trustees to the property devised or bequeath- 
ed to them for charitable or religious 
purposes by Kallianji Sewji was not ques- 
fcpne'd until the survivor of the two widows 
(jtied ia 1888, and that property had never 
been represented by the widows or either 
of v .them, It had been in the exclusive 
possession of the trustees under the Will 
of Kallianji Sewji from 1869 until the 
Court in the suit which was brought on 
the 21st December, 1888, after the death of 
the last surviving widow, had decided that 
thejji/t for diariiablo or religious purposes 
was void. 

, The result of the cases to which their 
Lordships have referred shows, in their 
opinion, ihat the Board has invariably 
applied : lii* rules of the Shivagunga'a case (2) 
as 'sound Hindu Law where that rule was 
applicable. 

It also appears to their Lordships that 
the suifc^ is barred by limitation. The 
plaintiffs could not be entitled to a decree 
fo pOcses^ion without displacing the 
adoption of 1802 of Alagusundara by Chok- 
It was held by the Board in 
: : r hdodhraniv. Dakhina Mohun 
' (9), that Art. 129 of the Second 



, 



Schedule of ^ Act IX of 1871 relates to all 
suits in which the plaintiff cannot succeed 
without displacing an apparent adoption 
by virtue of . which the defendant is in 
possession* That Article prescribed 12 
years as the period of time within which a 
Auit " to establish or set aside an adoption " 
tnight be brought and that such period of 
12 years should begin to run from "The 
{tate.ol the adoption, or (at the option of the 
pi*in t tiff) from the date of the adoptive 
.father's death, 11 

,,,Ac# IX of 1871 did not give to a rever- 
$iA$9, who^je right to sue for possession 
accrued ,i*pon the death of Hindu widow 
W7^. further time thpn the 12 years 
given,, by A*t. 129 to, any plaintiff. That 
Acfc yraa in force until the 19th July, 1877, 

. (D) 1*3 I; A, 84; 13,0. $08; lOJnd. Jur, 307; 4 Sar. 
P, 0, J, 7J5; Jud, Deo, (N. B.) 705 (V, 0.). 



when Act XV of 1877, the Indian Limitation 
Act, 1877, came into force, and by Art. 141 
of the Second Schedule of Act XV of 1877 
a Hindu entitled to the possession of im- 
movable property on the death of a Hindu 
female might bring his suit for posses- 
sion within 12 years from the time when 
the female dies In the present case the 
period of limitation allowed by Art. 129 oi 
Act IX of 1871 expired in 1874. 

The person who at the date of the adop- 
tion in 1862 was entitled to sue to set aside 
the adoption must have been a reversioner 
to Arunachala, and looking at the pedigrees 
he must have been either Kalianasundara 
or Chokkappa, and it has not been pleaded 
or otherwise alleged that they were at the 
time of the adoption under the age of 18 
years so as to entitle them to an extension of 
the period allowable to a minor under s. 7, 
Act IX of 1871, to bring a suit. It is obvious 
looking at the facts and dates in the present 
case, that Kalianasundara and Chokkappa 
must have arrived at full age long before Act 
IX of 1871 expired and that that Act applied. 

In the present suit the Subordinate Judge 
found that the question as to the adoption 
of Arunachala was res judicata, but Sir 
John Wallis, 0. J,, and Mr. Justice Burn, 
in the appeal to the High Court, decided 
that the principle of res judicata did not 
apply. On that subject their Lordships do 
not consider it necessary to express an 
opinion. 

It has been arranged by the parties 
through their respective Counsel and their 
respective Solicitors in the best interests of 
their clients that the plaintiff's appeal No. 
124 of 1923. and the first defendants' appeal, 
No. 128 of 1923, which relates to the village 
of Knkan, should be dismissed, and that 
there should be no order as to costs in 
either of these appeals in which other 
respondents have not appeared. It has also 
been arranged by the parties though their 
respective Counsel and their respective 
Solicitors' in the best interests of their 
clients that the plaintiffs 1 appeal No. 125 of 
1923, should be dismissed without costs 
on either side, the plaintiffs having admit* 
ted that the late husband cf the first defend- 
ant was not disqualified from inheriting 
along with the plaintiffs. Except as above 
arranged by the parties it appears to their 
Lordships that all the appeals should be 
dismissed with costs, and their Lordships 
will so accordingly humbly advise Hia 
Majesty, 



94 



NATIONAL BANK OF UPPER INDIA V. BANSl DHAtt. 



Since the hearing of these appeals some 
of the parties, their Lordships understand, 
have entered into compromises. On pro- 
duction of the proper evidence, effect to 
these compromises will be given in the 
Order in Council confirming this report, 

z. K. Appeals dismissed. 

Solicitors for V,'!-'-.!^- .;,, Mudaliar and 
others: Messrs. 3 . L. \\ nson and Co. 

S"lici;. :-iVi ?i ii;ii,iM;li As.r i i-i.'l others: 
Me--!- (' -;:-'n ,-/, IT-? /.< r i..j > phard. 

Solicitor for Somasundaram Ohettiar and 
A. Rangasami Ohettiar: Mr. D. Grant. 



OUDH CHIEF COURT. 

FIRST CIVIL APPEAL No. 6 OF 1924. 

November 18, 1925. 
Present: Mr. Justice Stuart, Chief Judge, 

and Mr. Justice Ash worth. 

NATIONAL BANK OF UPPER INDIA 

(IN LIQUIDATION) THRODGH ITS LIQUIDATORS 

Seth UADHA KI8HAN AND ANOTHER 

PLAINTIFFS APPELLANTS 

versus 

BANSI DHAR AND ANOTHER DEFENDANTS 
RESPONDENTS. 

Negotiable Instruments Act (XXVI of 1881), s 28 
Pro-note, execution of, for another Personal liability 
not intended Inducement by promisee -Inducement 
by real borrower- -Limitation Act (IX of 1908), s, 20 
Pro-note, execution of, for another Payment of 
interest by real debt or ---Extension of time,. 

If a negotiable instrument does not set out clearly 
that the maker is not personally liable the fact of the 
knowledge of the payee that the executant did not 
intend to incur personal liability is irrelevant, [p. 96, 
col. 1J 

Where, however, the promisee induces the execu- 
tant of a pro-note to sign the pro-note upon the belief 
that a third party only, and not he, would be liable 
thereunder, the executant cannot be held to be 
personally liable, [p. 95, col. 2.] 

Where the belief is induced by the third party and 
not the promisee, the executant cannot escape liabili- 
ty, [p. 96, col 2, p. 97, col. 2.J 

Where a promissory note is executed in pursuance 
of an agreement between the executant and a third 
party that the former would execute the promissory 
note, but that the latter would pay the interest on it 
and also the principal, this is sufficient evidence of an 
implied condition that that third party should pay 
the interest falling due on the promissory note as 
the duly appointed agent of the executant and the 
payment by him of interest saves limitation, but not 
so, where payment of interest is made not in conse- 
quence of any such agreement between the third 
party and the executant but in consequence of an 
understanding between the executant and the pro- 
misee, [p, 98, col. 1.1 

Appeal from the judgment and decree of 
the Sub-Judge, Lucknow, dated the 22nd 
October 1923, 



[921.0.1926] 

Mr. Aditya Prasad, for the Appellants. 

Messrs. Niamatullah, Ishwari Prasad and 
Jai Krishna Tandon, for the Respondents. 
JUDGMENT. 

Ashworth, J. This is a plaintiff's 
first appeal. The suit is one brought by 
the National Bank of Upper India (in li- 
quidation) against the defendant No. 1 
Bansi Dhar and defendant No. 2 Gopal Das 
on a promissory note signed by the former 
only, and on a current account alleged to 
have existed between the defendants and 
the Bank. Reliance on the current account 
as a cause of action was abandoned in the 
lower Court, as the only debit items in this 
account were instalments of interest due on 
the promissory note, and for the purposes of 
this appeal the sole cause of action is liabi- 
lity under the promissory note. In the lower 
Court the second defendant pleaded that 
he could not be liable on a promissory note 
which was only signed by defendant No. 1 
and not by himself, a contention which was 
upheld by the Court, and which is not im- 
pugned in this appeal. Bansi Dhar defend- 
ant No. 1 pleaded that even if consideration 
were held to have existed the suit was bar- 
red by limitation, as he himself had neither 
paid any interest on it nor authorised any one 
else to pay interest onit, and that three years 
had elapsed since the date of its execution, 
The lower Court held that the promissory 
note was executed by defendant No. 1 for 
consideration, namely, the promise by the 
Bank to the defendant No. 1 (a promise ful- 
filled) to credit the account of Bishambhar 
Nath Tandon with the sum secured by the 
promissory note, namely, Rs. 20,tOO, It 
found, however, that there was only one 
payment towards interest made within 
three years, namely, that of Rs. 908-6-3 made 
on the 23rd November 1918. This sum it 
held to have been paid by a third party 
Bishambhar Nath otherwise than as the 
agent of the defendant No. 1. It, therefore, 
helO that limitation was not saved under 
s. 20 of the Limitation Act (IX of 1908). 
The finding as to limitation is impugned 
in this appeal. The respondent's Counsel 
is prepared to maintain tliat the lower 
Court's finding as to limitation was correct, 
irrespective of any other finding, but his 
main content ion is that the suit should 
have been dismissed because there was no 
consideration. I am of the opinion th&t it 
might be difficult to hold that the suit was 
barred by limitation if the promissory note 
was for consideration, and, therefore, I first 



[92 I. 0. 1926] 

proceed to decide the question whether the 
lower Court's finding that there was con- 
sideration should be upheld or not. 

The plaintiff's case as set forth in the 
plaint was that the defendant No. 1 and 
his brother the defendant No. 2 needed the 
money for their cloth and banking busi- 
ness and accordingly borrowed it from the 
Bank on the security of the promissory 
note in question. The promissory note in 
question is Ex. 1, dated 22nd December 
1917, It is for the sum of Rs. 20,000 with 
interest atj) percent, per annum to be com- 
pounded half yearly, and purports to have 
been executed "for value received in full. 11 
It is signed by defendant No. 1 Bansi Dhar 
alone. Exhibit 2 is a receipt executed by 
Bansi Dhar alone for Rs. 20,000. The plaint 
explains that the note was executed by 
Bansi Dhar alone because his brother, the 
second defendant, was a Director of the 
Bank and did not think it advisable to 
appear as a borrower from the Bank. The 
plea set up by Bansi Dhar in para. 10 of his 
written statement was that neither he nor 
his brother ever borrowed the twenty 
thousand rupees from the Bank, and that 
the note was executed by him at the re- 
quest of Bishambhar Nath, a third party, 
with the knowledge of the Manager of the 
Bank, Pandit Ram Nath Sapru, merely, to 
conceal the indebtness of Bishambhar Nath 
to the Bank, Bishambhar Nath being one 
of the Directors. The actual language of 
this para. 10 is as follows: 

"There was an intimate friendship between 
Pandit Ram Nath Sapru deceased Manager 
of the plaintiff Bank, and Rai .Sahib Babu 
Bishambhar Nath, one of the Directors of 
it, and the answering defendant and the 
said Rai Sahib, were also on very intimate 
terms. Rai Sahib Babu Bishambar Nath 
had taken the debt entered in the pro-note, 
the basis of claim, from the plaintiff; at 
his suggestion the answering defendant 
signed the pro-note the basis of claim and 
its receipt without getting any considera- 
tion, the answering defendant did not sign 
the said deeds as a debtor and no contract 
was entered into or consideration passed 
between the plaintiff Bank and the answer- 
ing defendant with respect to the said docu- 
ments." 

This pleading in the written statement 
of the defendant No, 1 was subsequently am- 
plified by a statement of Mr. Wazir Hasan, 
Counsel for the ^defendant which was as 
follows; 



NATIONAL BANK OF f PPBR INDIA V. BANSI DHAR. 



95 



"The loan sued for, if real, was negoti- 
ated by Rai Bishambhar Nath for his own 
benefit. He received that money from the 
Bank, and, therefore, there was no consider- 
ation which moved from the Bank in favour 
of Bansi Dhar, Bansi Dhar is, therefore, not 
liable to re-pay the loan. Bishambhar 
Nath, the real debtor, is liable to pay the 
loan. The defendant Bansi Dhar signed 
the pro-note at the request of Lala Bisham- 
bhar Nath who in view of the practice in 
the Bank, being one of the Directors of 
the plaintiff Bank, could not sign the pro- 
note. The plaintiff's case is based on the 
ground that the consideration of the pro- 
note in suit consists in the payment made 
by the Bank to Bansi Dhar. There is no 
other consideration set up by the plaintiff. 
The consideration so set up is denied by us. 
It is not our case that Barisi Dhar signed the 
pro-note in the capacity of an agent of a 
disclosed or undisclosed principal. Our 
case is that we are not liable because 
there is no consideration moving from the 
Bank towards us that would make the 
promise contained in the note sued for bind- 
ing on us. As a positive case we further 
state that the loan advanced by the Bank 
to Bishambhar Nath was not really due 
to the fact that we ever made any request 
to the Bank for the loan to be made to 
Bishambhar Nath. The whole transaction 
was concluded between the Bank and 
Bishambhar Nath alone, and Bansidhar 
came in only as a benami signatory to the 
pro-note. The Bank was fully cognizant of 
this state of affairs." 

Now it must be admitted that this plead- 
ing did not furnish an answer to the claim 
on the pro-note This pleading set up the 
fact that by agreement between defendant 
No. 1 and Bishambhar Nath the former 
was to incur no personal liability, and these 
pleadings suggest, though they do not 
explicitly state so, that the Manager Ram 
Natb Sapru was aware that the defendant 
No. 1 did not in tend to incur personal liabil- 
ity. This was not enough. It was necessary 
in the language of s, 28 of the Negotiable 
Instruments Act to prove that the Manager 
of the Bank Ram Nath Sapru induced de- 
fendant No. 1 to sign the pro-note upon the 
belief that Biehambhar Nath only would be 
held liable. Section 28 of the Negotiable 
Instruments Act runs as follows: 

"An agent who signs his name to a pro- 
missory note, bill of exchange or cheque 
without indicating thereon that he signs as 



86 



NATIONAL BANK OP UPPER 



agent, or that h$ does not intend thereby to 
incur personal responsibility, is liable per- 
sonally on the instrument, except to those 
!rho induced him to sign upon the belief 
that the principal only would be held 
liable/; 

The Subordinate Judfee has relied on the 
case,, Ytnuganti China Venkatara^janim v. 
Kdtdgiri ,Venkata Narasimharayanim (1)> 
as authority for holding that "If a negoti- 
able instrument does not set out clearly 
th^ jifie maker is not personally liable the 
fact of the knowledge of the payee that the 
executant did not intend to incur personal 
liability is irrelevant'*, and we see no reason 
for dissenting from this pronouncement. If 
the evidence had only proved as much as 
was contended in the pleadings ^qf the 
Counsel of defendant No. 1, the decision of 
the Subordinate Judge would have been 
correct in r my opinion, but the evidence 
proves much more than this. ,It proves 
th^t the Manager Ham Nath actually induced 
the defendant No. 1 to sign the pro-note 
uppii ttie l-(-li(-f llinf Tttshambhar Nath only 
jvould.bel.'^i li*u;!o. It is on a finding of 
fact and ii<>l ii.'^iinis of law that I dissent 
from .the. conclusion of the Subordinate 
Judge* ,Tbe evidence on this matter con- 
sjstft pi;, th ( oral evidence of Bansi Dhar 
defendant Xo. 1 and Bishambhar Nath and 
on certain documentary evidence furnished 
by th$ t account IK:< u- f the I|ank. The 
Manager Jltin* Nir. ii ri|-iu was dead before 
,tbi9 eui ( t vl,-.- i.-io',;j!l.i. l!.e Banfr could not, 
therefore, produce him. The plaintiff Bank 
cauflot in ^reason object to reliance being 
placed on the evidence of Bansi Dhar who 
was called as a witness by the plaintiff. 
Moreover, as the case set up in the plaint 
that thq money was borrowed by Bansi 
I)har,for his own uses has been clearly 
disproved, and this is now admitted, the 
Bank could only succeed by reliance on 
the facts proved from the evidence of 
two witnesses. In his examination- 
ief Bansi Dhar stated as follows; 
was. on account of BisbambharNath's 
and Pandit Ram Nath's assurance 
that I signed the pro-note in suit. There 
was no 'liil: 1 :<!!^on, I had no dealing 
joihUy -A ;: !: 1'a: <hi Ram Nath We did not 
incur any, other liability eUher before or 
after the suit at the binding of Pandit Karh 
Nath. ,, , 

"The assurance given by Pandit Ram 
Nath was tha' JiM.s.-l.^r Nath, w$s t'alc- 
(i) 21 hid, Cas, ,4 :./ ." ", N, 1005; 14 M. L, 
, 502, 



INDIA t>. BANSI DHAB. [92 1 0. 1926] 

ing the loan and would re-pay it t and 
he could not take the loan in his own name 
as he was a Director He also said that 
there was no concern with me and that 
Rai Sahib would pay back the money, 
filpliambahar Nath said he was a Director, 
ajid could, not take the money in his name 
and it was necessary that somebody should 
sign for him. I believed that BisMmb'har 
Nath could not borrow money jfroin the 
Bank by signing himself. 

"&ai Sahib had negotiated the loan with 
Pandit Ram Nath and said that he was the 
Director and could not take the money in 
his name and it was necessary that some~ 
body should sign for him. I believed that 
Bishambhar Nath could Hot borrow money 
from the Bank by signing himself. 

4> Rai Sahib had negotiated the loan with 
Pandit Ram Nath and said that he was the 
Director and could not take the loan him- 
self. Pandit Ram Nath said that Rai 
Sahib was liable for the money and that I 
was to have no concern with it. I do not 
know if Ram Nath had the authority to 
advance more than Rs. 500 or not." 

In this statement he cleanly states tfrat 
the 31i'.!'iairi:r faun Nath had said that Rai 
Sahiii u a? liiiu 1 for the money and {hat he 
was to have no concern with it. Bisham- 
bhar Nath was called as a witness by the 
defendant, and corroborates T- > 'vf--:. ;iir;j. 
although to do so was clearh npi>..-: r.i^ 
own interest in escaping !:;:> U.- 
shambhar Nath in his evidence has stated: 

"I had borrowed the amount, covered by 
this pro-note from the plaintiff Bank. As I 
could dot borrow this amount in my own 
name from the bank on nro-note, I got the 
pro note signed by Bansi Dhar defendant No. 
1 on the advice of Pandit Ram Nath Sapiu, 

then Manager and Director of the Bani 

...I was talking to Pandit Ram Nath P&pm 
in the capacity of the Manager of the Bank 
and Bansi Dhar was also talking to him in 

the same capacity The sum of Rs. 20,000 

was borrowed to pay off some other account 
in the plaintiff Bank payable by me and 
Pandit Ram Nath Sapru, thelate Manager ol 
the Bank, I do not remember in whose 
name this account was payable." 

This evidence, which we believe, clearly 
shows that not only Bishambfcar Nath 
Tandon, the third party, but also the 
Mnr.r:ir-'-!- Ram Nath induced Bansi Dhar, 
defendant No. 1, to sigfc the pro note tapou 
the belief that Bishambhar Nath only woiald 
be held liable. It is also to be* noted that 



[92 L 0. 1926] 

the Bank only brought the suit after the 
death of the Manager Ram Nath Sapru, from 
which it may be inferred that Ram Nath 
himself was aware that it would not be 
advisable to sue the defendant No. 1. There 
is also strong documentary and other evi- 
dence to support the view that Bansi Dhar 
was induced to sign the pro-note in this way. 
As the lower Court remarks in its judgment 
page 276, Ex. 15, cash book of the plaintiff 
Bank, shows that Rs. 20,000 were credited 
to the current account of Bishambhar 
Nath on the 28th December 1917, the next 
opening day after the 22nd December on 
which date the pro-note in suit was execut- 
ed by Bansi Dhar. This important exhibit 
has not been printed by an oversight. I 
find, however, that just the same thing was 
done in the following December 1918. Ex- 
hibit 16, which is printed, is the cash book 
for Monday the 30th December 1918. There 
Bishambhar Nath Tandon is credited with 
Rs. 50,000 and one Radha Kishen is de- 
bited with Rs. 50,000 on a pro-note. The 
Subordinate Judge attempts to get over 
this evidence, that the Manager Ram Nath 
himself induced defendant No. 1 to sign the 
pro-note by holding out that he would not 
be liable under it, by two arguments. 

"In the first place it is not said by Bansi 
Dhar that Ram Nath had told him that the 
plaintiff Bank would not hold him liable/' 

I have already quoted the statement, 

"It was on account of Bishambhar Nath's 
request and Pandit Ram Nath's assurance 
that I signed the pro-note." 

I have also quoted the evidence of Bi- 
shambhar Nath Tandon. The Subordinate 
Judge was, therefore, wrong on this point. 
Next he has stated, that even if Ram Nath 
had held out the inducement it would not, 
in his opinion, have helped the case for the 
defendant. He then proceeds to draw a 
distinction between the Manager acting on 
behalf of the Bank and acting in a private 
capacity. He thinks that the Manager got 
the pro-note executed on behalf of the Bank 
but gave the assurance in his individual 
capacity. This distinction appears to me 
to be an impossible one in view of the 
language of s. 199 of the Contract Act. It 
i : 8 common ground that the advance to de- 
fendant No. 1 by the Manager of the Bank 
wate beyond the powers of the Manager 
See Ex. Bll, pago 5 of Part III, whicn is a 
<k)]py of a resolution passed by tie Directors, 
tod which fun.s ai> follows; 

"Besolved that the General Manager be 

7 



NATIONAL BANK OP UPPER INDIA V. BANSt DHAR. 



9?* 



empowered to make advances on approved 
securities to the extent of Rs. 500 only/ 1 

Now in order to bring this suit the Bank 
had to ratify the Manager's unauthorised 
action and by bringing the suit it may be 
deemed to have done so. But under s. 199 
of the Contract Act a person ratifying any 
unauthorised act done on his behalf ratifies 
the whole of the transaction of which such 
act formed a part. The Bank could not 
disown any inducement made by the Mana- 
ger at the time of getting the pro note exe- 
cuted. 

It is clearly, therefore, proved in my 
opinion that Bansi Dhar is not liable per- 
sonally on the pro-note inasmuch as he was 
induced by the Bank's Manager to sign 
upon the belief that Bishambhar Nath only 
would be held liable. The form in which 
the case has been argued in appeal is that 
there was no consideration. Section 28 of 
the Negotiable Instruments Act will only 
apply if Bansi Dhar be held to be the agent 
of Bishambhar Nath Tandon. This has not 
been pleaded by Bansi Dhar's Counsel in so 
many words, but it was obviously what was 
meant when Syed Wazir Hasan took up 
the plea on his behalf that the signature 
was benami. The matter has been argued 
in this Court on the ground that there was 
no consideration. For the plaintiff it was 
urged that the consideration passing from 
the Bank to the defendant No. 1 was that 
the Bank agreed to transfer the liability in 
respect of Rs. 20,000 due from Bishambhar 
Nath. Tandon towards the Bank to the de- 
fendant No. 1. Enough has been said to 
show that there was no agreement by the 
Manager. The agreement by him was that 
the defendant No. 1 should not be held 
liable at all. It is urged, however, that 
actual forbearance at the request of the 
defendant would be a sufficient considera- 
tion although there was no con tract to for- 
bear. It is not shown that the defendant 
ever asked the Manager tp forbear proceed- 
ings against Bishambhar Nath Tandon on 
the book debt. On the contrary the Mana- 
ger told the defendant that he had no 
proceed against Bishambhar 
\ i : but in order to prevent the 
Directors making him do so he wanted the 
pro-note executed by the defendant No. 1. 
I do not agl-fce with fin- ~:s ii.'.g 6f the lower 
Court that it was ulway- {'.':. ">9 the plaint- 
iff Bank to redognise the pro-note in stiit. 

Coming to the question of limitation I 
should' hav6 beeh disposed to hold that ii the 



98 



RAMA FAO V, RANGASWAMT RAO. 



pro-note had been executed by defendant 
No. 1 in pursuance of an agreement between 
himself and Bishambhar Nath, that he 
would execute the pro-note but that Bi- 
ehambhar Nath would pay the interest on it 
and also the principal, then this would have 
been sufficient evidence of an implied con- 
dition that Bishambhar Nath should pay 
the interest as the duly appointed agent 
of defendant No. 1, In this view the pay- 
ment of the 23rd November 1918 by Bis- 
hambhar Nath would have saved limita- 
tion. The facts, however, are different. The 
interest was paid by Bishambhar Nath not 
in consequence of any such agreement be- 
tween defendant No. 1 and Bishambhar 
Nath, but in consequence of an under- 
standing between the defendant No. 1 and 
the Manager of the Bank. In the light of 
such an understanding Bishambhar Nath's 
payment cannot be said to have been on 
behalf of the defendant No. 1. It was a 
payment on behalf of himself, inasmuch as 
the Manager wss still holding Bishmabhar 
Nath to be the real debtor. If the finding 
of the Subordinate Judge as to the liability 
of defendant No. 1 under the pro-note had 
been correct, it may well have been that his 
finding as to limitation could not have been 
upheld. In my view of the case, however, 
the suit must fail not only because the suit 
is time barred but also because there was 
no consideration for the defendant No. 1 
signing the pro -note in his personal capa- 
city. If he signed the pro-note on behalf of 
Biahambhar Nath Tandon then he did this 
on the inducement of the Bank and the 
Bank must proceed against Bishambhar 
Nath Tandon. In my view this appeal 
should be dismissed with costs. 

Stuart, C. J. I concur in the finding 
of my learned brother. I agree with him 
in accepting the evidence of Bansi Dhar and 
Bishambhar Nath as true upon the points 
to which he has referred. This evidence 
is strongly corroborated by other evidence. 
I agree that there was no consideration for 
the execution of the promissory note by 
Bansi Dhar and I further find that there 
was no payment of interest due upon the 
promissory note made by Bansi Dhar or by 
his agent duly authorised in this behalf. I, 
therefore, agree that the appeal should be 
dismissed with costs. 

By the Court. The appeal is dismiss- 
ed with costs. 

#, H, Appeal dismissed. 



[*2 L 0. 1926] 

MADRAS HIGH COURT* 

CIVIL REVISION PETITION No. 761 OF 1922. 

October 10, 1924. 

Present: -Mr. Justice Waller. 

M. RAMA RAO PETITIONER 

versus 
K. RENGASWAMY RAO RESPONDENT. 

Guardians and Wards Act (VI I of 1890), 88. W, 1^1 
(3) Guardian, discharge of, application foi In- 
vestigation into accountsCourt, power of. 

On an application by a person " * from 

guardianship under s. 40 of the . Vards 
Act, the Court has not only to order under s. 41 (3) 
delivery of accounts and property in his possession, 
but has power to direct an investigation into accounts 
before ordering discharge. 

Nabu Bepan v. Sheikh Mahomed, 5 C. W. N. 207, 
distinguished. 

Petition, under s. 115 of Act V of 1903, 
praying the High Court to revise the order 
of the District Court of Nellore, dated the 
23rd day of January 1922, in I. A. No. 16 
of 1920, (0. P. No. 92 of 1913). 

Mr. M. Patanjali Sastri, for the Peti- 
tioner. 

Mr. K. Krishnaswami lyengar, for the 
Respondent. , 

ORDER. -In January 1920 respondent 
applied to be discharged from guardian- 
ship, Two years later the District Judge 
granted him a discharge under s. 40 of the 
Act, at the same time directing him under 
s. 41 (3) to deliver his accounts and all 
property in his possession belonging to the 
minor. In doing so, the District Judge 
expressed the opinion that he could not 
make an investigation into the accounts, 
The ruling he relied on Nabu Bepari v. 
Sheikh Mahomed (1), has no application 
here, for it dealt with the case of a minor, 
who had come of age. 

When the Court has ordered a guardian 
under s. 41 (3) to deliver accounts and pro- 
perty in his possession, there is still a 
further question to be decided, that is to 
say, whether he is to be discharged from 
further liability under the next sub-section. 
I am unable to see how it is to be decided 
without an investigation into the accounts* 
I cannot for a moment concede that the 
Court is bound to accept without scrutiny 
any account he chooses to submit or to 
allow him to deliver only such property as 
he admits himself to possess. 

in this case, the District Judge has not 
yet passed any order under s. 41 (4). The 
records will be returned. The parties may 
apply to him for further orders. There 
will be no order as to costs in this Couit. 
v, N. v. Petition allowed, 

(1) 5 0. W, N, 207, 



I. 0. 1926J 



MAHIPAL SINGH V. SARJOO PRASAD. 



OUDH CHIEF COURT. 

SECOND RENT APPEAL No. 39 OF 1925. 

November 11, 1925. 
Present: Mr. Justice Misra. 
MAHIPAL SINGH PLAINTIFF- 
APPELLANT 

versus 

SARJOO PR A3 ADDEFENDANT 
RESPONDENT. 

Adverse possession Possession under invalid title 
Co-sharers Realization of rent by one co-sharer. 

If possession is acquired by a person imder an in- 
valid title and he continues to remain in possession 
for more than 12 years, although the document relating 
to his title may be invalid for want of registration 
or any other ground, yet the possession having lasted 
for more than 12 years the title becomes an un-assail- 
able one. [p. 100, col. L] 

Therefore, where a party originally enters into 
possession under an unregistered sale-deed, the defect 
in his title is cured by his having been in possession 
for over 12 years [ibid ] 

Varada Pillai v. Jeevar at /mammal, 53 Ind. Cas 001; 
43 M 244; (1919) M. W. N 724; 10 L W. 679, 24 G W. 
N. 346; 38 M. L. J 313; 18 A L J 274, 46 I A 285, 2 
L T . P. L. E. (P. 0.; 04; 22 Bom. L. K. 444 (P. C ), 
followed. 

If a co-sharer has been in possession of a particular 
land, his possession cannot be considered adverse 
against the other co -sharers, and his possession must 
be deemed to be on behalf of them all In order to 
establish adverse possession in such a case a co-sharer 
has to establish that he expressly denied the title of 
the other co-sharers and remained in possession after 
such denial for over 12 years, [ibid.] 

Therefore, the mere fact that a co-sharer hag been 
realizing rents of certain plots of land in which he is 
a co-sharer, would not establish that he has been in 
adverse possession so as to extinguish the title of the 
other co-sharers [ibid ] 

Corea v. Appuhamy, (1912) A. C 230; 81 L, J. P. 0. 
151; 105 L T. 836, Jogmdra Nath v. Baladeb Das, 35 
9G1, 12 C. W. N. 127, 6 G L. J. 735 ond Ahmad Raza 
Khan v. Ram Lai, 26 Ind. Gas. 922; 13 A. L. J. 201, 
37 A 203, relied on. 

Second rent appeal against the decree 
and judgment of the District Judge, 
Lucknow, dated the 16th March 1925 re- 
versing those of the Assistant Collector 
First Class, Lucknow, dated the 25th Octo- 
ber 1924. 

Messrs. Ganesh Prasad and Sheo Prasad, 
for the Appellants 

Mr. Hakimuddin Siddique, for the Re- 
spondents. 

JUDGMENT. This is an appeal aris- 
ing out of a suit for profits under s. 108 
ci. 15 of the Oudh Rent Act, m respect of 
land situate in Mohal Sarju Prasad, Pargana 
Nigohan, Tahsil Mohanlal Gunj, District 
Lucknow The defendants denied the title 
of the plaintiff and urged in defence that 
they had been in adverse possession of the 
share of the plaintiff and that consequently 
he was not entitled to claim any profits. 



The learned Assistant Collector decreed 
the plaintiff's claim for Rs. 27-8-6 against 
the defendant No. 1. 

On appeal the learned District Judge 
allowed the appeal and dismissed the plaint-, 
iff's suit with costs in both the Courts. 

In second appeal it is contended that 
the decision of the learned District Judge 
with regard to adverse possession of the 
defendants is incorrect and that the plaint- 
iff's suit should have been decreed as was 
done by the learned Assistant Collector. 

In order to decide the plea of adverse 
possession it is necessary that I should go 
into some of the facts of the case. It 
appears that on the 2nd of November 1883 
three persons Gaya Singh, Ganesh Singh 
and Diwan Singh sold their shares in 
villages Lalpur and Chak Kaitha to one 
Jokhelal alias Zaoki Lai, father of Sarju 
Prasad defendant-respondent No. 1. In 
the said sale-deed certain plots of land 
which consisted of grove land and cultivat- 
ed land were exempted from sale. The 
share of each of the vendors in the culti- 
vated plots and in the grove land was one- 
third each. Ganesh Singh had two sons, 
one Gur Dayal and the other Mahipal 
Singh who was the plaintiff in the Court 
below and is now the appellant in this 
Court, The one-third share which Ganesh 
Singh had in the grove land devolved, 
after his death, on his two sons named 
above, Gur Dayal sold half of his father's 
one-third which he had inherited by means 
of a sale-deed, dated the 23rd of December 
1903 to defendant Sheo Dayal. Mahipal 
Singh is still in possession of his one-sixth 
share in the grove land. So far as the 
cultivated plots of land went Ganesh Singh 
sold his one-third share in them to Sheo 
Dayal respondent under an unregistered 
deed, dated the 9th of June 1896 forRs. 200. 
The respondents contended that they were 
in possession of the plaintiff's share in the 
culti\ated plots of land by virtue of the 
above mentioned sale-deed and that they 
were in adverse possession with regard to 
the plaintiff's one-sixth share in the grove 
land. 

It is clearly proved from the facts stated 
above that so far as the cultivated plots of 
land are concerned the defendant's posses- 
sion amounts to an adverse possession. 
Although the deed was an unregistered deed 
yet it is clear from the Patwaris evidence 
on the record that the vendee obtained 
possession of those plots of land from the 



100 



KANDASAMI CHBTTIAR V. G. F. fl, FOtJLKES. 



date of the sale. The defendants 1 have, 
therefore, "been in possession of the plaint- 
iff's share in those plots ever" since the year 
1896 when the sale-deed was executed and 
have remained in possession for a period of 
over 26 years. Although the defendants 
originally entered into possession under an 
unregistered sale-deed, yet the defect in 
their title has now been cured by their hav- 
ing been in such possession for over 12 
years. This principle is clearly established 
by a decision of their Lordships of the 
Privy Council reported in Vaiada Pill a i 
v. Jecvarath7iammal (1). Their Lordships 
have held that if the possession is acquired 
by a person under an invalid title and he 
continues to remain in possession for more 
than 12 yeara, although the document relat- 
ing to his title may be invalid for want of 
registration or any other ground, yet the 
possession having dasted for more than 12 
years the title becomes an unassailable one. 
In my opinion the plaintiff's claim to profits 
with respect to his share in the cultivated 
plots of land cannot be maintained. 

Regarding the plaintiff's claim with re- 
spect to his share in the grove plot it is 
equally clear tome that the defendants have 
not been able to establish their claim by 
adverse possession. I have not been able to 
follow the judgment of the learned District 
Judge on this poiilt. It is clear that the 
plaintiff s share in groveland amounts to one- 
sixth and that the defendants are co-gharers 
in those very plots of land. The mere fact 
that the defendants have been realizing 
rents of those plots would not establish that 
they have been in adverse possession of the 
land. It is well established rule of law 
that if a co-sharer has been in possession 
of a particular land, his possession cannot 
be considered adverse against the other co- 
sharers, and his possession must be deemed 
to be on behalf of them all. In order to 
establish adverse possession in such a case 
a co-sharer has to establish that he express- 
ly denied the title of the other co-sharers 
and remained in possession after such denial 
for over 12 years, vide Corea v. Appuhawy 
(2) Jogendra Nath v. Baladeb Das (3) and 
Ahmad Raza Khan v. Ram Lai (4). It, 
therefore, appears to me to be quite clear 

(1) 53 Ind. Cas. 901; 43 M. 244, (1919) M. W. N. 724: 
10 L. W. 679; 24 C. W. N. 346; 38 M. L. J. 313; 18 A. 
L. J. 274, 46 I. A. 285; 2 U. P. L. R. (P. Q.) 64; 22 Bom. 
L. R.444 (P.O.). 

(2) (1912) A. C. 230; 81 L. J, P. C, 151; 105 L, T. 836, 

(3) 35 C. 961; 12 0. W. N, 127; 6 0. L. J, 735. 
(4; 26 Ind, Cae, 922; 13 A, L. J, 204; 37 A, 203, 



[921.0.1926] 

that the tille.of the plaintiff to claim profits 
with regard to one-sixth of the grove land is 
not, in any way, extinguished by adverse 
possession. \ 

I, therefore, allow this appeal to this extent 
that I decree the plaintiffs claim with re- 
spect of his share of profits in the grove 
land which was agreed upon in the 
Trial Court as amounting to Rs. 15 for 3 
years in suit. The plaintiff is also entitled 
to a sum of KP. 8-6 for the produce of chari 
in plots Nos. 466 and 518 for one year, name- 
ly 1330 F , these plots being also included 
in the grove land. In the result I decree 
the plaintiff's claim for Rs. 15-8 6 with pro- 
portionate costs in all the three Courts, the 
rest of the claim will stand dismissed with 
costs in all the Courts. 

G. H. Appeal partly allowed. 



MADRAS HIGH COURT. 

CIVIL BEVISION PETITION No. 924 OF 1924. 

September 24, 1925. 

Present ; Mr. Justice Ramesam. 

D. A. KANDA8AMI CHETTIAR 

PETITIONER 

versus 
G. F. F. FOUIJKEJ8 RESPONDENT. 

Madrtis Local Boards Act (XIV of 1920), ss. 35, 56 
(It) Failure, of member to attend three consecutive, 
meetings of District Board Restoration, effect of 
Fiebh oath of allegiance, whether necessaty Taluk 
Board member, election of, to District Board-- Loss of 
and restoration to membership of Taluk Board, effect 
of Election petition Amendment application after 
expiiy of period -fixed , whether permissible 

\Vhereamember of a District Board fails to attend 
at the meetings of the Board for three consecutive 
months and is restored to office under s. 56 (4) of 
the Local Boards Act by a resolution of the Board, 
he does not become a new member but is merely 
restored to the office of membership for the balance 
of the period for which he was originally elected arid 
a fresh oath of allegiance is, therefore, unnecessary. 
[p .101, cols. 1 & 2.] 

Where a member of a Taluk Board who has been 
elected to the District Boaid loses hia membership 
of the former by absence for three consecutive 
months and thereby loses his membership of the 
District Board also and is then restored under s. 56 
(4) of the Local Boards Act to the membership of the 
Taluk Board by a resolution f the said Board, euch 
resolution cannot have the effect of restoring him to 
the membership of the District Board as well. [t>. 
102, col. 1 ] 

, v. Sethuratna Iyer, 87 Jnd. Gas. 363; 
: , ' ii M.) 1034, followed. 

An application for an amendment of an election 
petition filed after the expiry of the days allowed for 



[92 I. 0. 1926] 



KANBASAMI OHETTIAR V. 0. F. P. FOTTLKES, 



101 



an objection petition is not unsustainable and may in 
the discretion of the Judge be allowed |p 102, col. 1 j 

Section 35 of the Madras Local Boards Act is 
inapplicable to an election petition and cannot cure 
defeats in an election, [p. 102, col 2,] f 

Petition, under s. 115, 0. P. 0., and s. 107 
of the Government of India Act, praying 
the High Court to revise the order of the 
District Court, Salem, dated the llth 
November 1924, in 0. S. No, 52 of 1924. 

Messrs. T. M. Krishnaswami Iyer and V. 
Ganpathi Iyer> for the Petitioner. 

Mr. S. Varadachari, for the Respondent. 

JUDGMENT.- This is a revision 
petition against the order of the District 
Judge of Halem < refusing to set aside the 
election of the President of the District 
Board of Salem held on 29th July 1924. 
The first ground alleged in the petition 
and repeated before me here is that five of 
the voters, namely, Arunachalla Goundan, 2. 
Bornrfianna Ohetty, 3. Rahu, 4. Chinnappa 
Qoundanand 5. VasudevaReddi have ceased 
to hold their office as members of the District 
Board by reason of their non-attendance at 
the meetings of the District Board for three 
consecutive months. Four of these were 
elected and one was nominated. Though 
all the live were restored to their office by 
a resolution of the Board under s. 56 (4) of 
the Act, it is said (1) that they cannot exer- 
cise the functions of the members of a 
Board at the meeting at which they were 
restored, (2) that they ought to take afresh 
oath of allegiance and until a fresh oath of 
allegiance was taken, they cannot exercise 
the functions of members of the District 
Board and in this case no such fresh oath or 
ullr'sjrinnn* \v,i* taken. 

Tho Di-ilnr; Judge was of opinion that 
thesa members were not disqualified and 
their membership did not cease as they 
were not absent for three consecutive meet- 
ings. It appears that 4 of them were absent 
from one meeting and the 5th absent from 
two consecutive meetings, but in two of the 
three months preceding the meeting of the 
29th July, the Board had not met at all, 
infringing r. 1 of the rules regulating the 
]>nvrcdinKS of Local Board (Hch. 11 of the 
Av\' e . I: 'is unnecessary to consider this 
question as th6 members were all restored 
to the office and as I have come to the con- 
clusion that the other objections against 
their membership cannot stand. If, at the 
meeting of the 29th July, they were first 
restored to membership and afterwards the 
Board proceeded to the election of the Presi- 
dent, I do not see anything irregular or 



illegal in this procedure. Therefore, there 
is no substance in the first ground, 

The second ground is that a fresh oath of 
allegiance must be taken. The effect of 
the restoration of a member, though it may 
not be retrospective as to make him a 
member of the Board during the preced- 
ing 3 months or so as to restore to him any 
privileges besides the mere membership 
such as presidentship or vice-presidentship 
which he lost along with the membership, 
as was held by me in Devasigamony v, 
Sethuiatna Iyer (1), is certainly to restore 
him to the office of membership for the 
balance of the period for which he was 
originally elected or nominated It is not 
that he becomes a new member getting a 
fresh full period of office from the date of 
the restoration. Whenever there is a fresh 
election or fresh nomination no doubt a 
fresh oath of allegiance ought to be taken. 
But in the case of a restored member he is 
restored to his former membership, that is, 
the membership he previously had by elec- 
tion or by nomination completed by the 
oath of allegiance which he had previously 
taken. If it be said that he does not get the 
benefit of he prior election or nomination 
and the oath which he had taken, it would 
be creating a fourth class of members not 
contemplated by the Act. The Act con- 
templates only ex officio members, elected 
members and nominated members. It is 
clear, therefore, that the restoration makes 
him the elected or nominated member he 
previously .was. If so, he gets also the 
benefit of the previous oath of allegiance. 
I do not think, therefore, there is any sub- 
stance even in the second ground. The 
result is, that so far as these five voters are 
concerned, the petition fails. 

The next ground taken is that one Mekha 
Pillai a member of the Taluk Board, Salem 
who had been elected to the District Board 
lost his membership of the Taluk Board by 
absence for three consecutive months and 
thereby lost his membership of the District 
Board also. He was then restored to the 
membership of the Taluk Board by a 
resolution of the Taluk Board dated the 
29th of March, 1924. The contention is 
that the resolution of the Taluk Board 
cannot have the effect of restoring him to 
the membership of the District Board which 
he lost. On this matter I do not agree with 
the view taken by the District Judge that 

U) 87 lad, Cas, 363; '(1925) A, I, R. (A!,) 1034, 



102 



KESHEORAO V, MAROTIRAO. 



[92 I. C. 1926] 



the restoration of Mekha Filial to the 
membership of the ^Taluk Board also 
restores him into the membership of tbe 
District Board. I adhere to the view I 
have taken on this matter in my judgment 
in Davasigamony v. Sethuratna Iyer (1). 
But this does not help the petitioner for 
the respondent got 22 votes, and sthe peti- 
tioner got 19. In the first place, it is not 
clear that Mekha Pillai voted for the res- 
pondent (vide the judgment of the District 
Judge in para. 8). But assuming that he 
voted for the respondent and that his vote 
is invalid the respondent has still got a 
majority. 

The next objection taken is that there 
are two cases like the case of Mekha Pillai 
of others who were elected to the District 
Board and who have lost their membership 
of the District Board by non-attendance at 
the Taluk Board and losing the member- 
ship of the Taluk Board and whose restora- 
tion to the membership of the Taluk Board 
does not, according to my view, restore them 
to the membership of the District Board. 
This objection was not taken in the original 
petition. It was sought to be introduced 
into the case by an application for amend- 
ment dated the let November, that is 
during the hearing of the petition. Though 
I do not hold that an application for an 
amendment of the petition filed after the 
expiry of the days allowed for an objection 
petition is never maintainable and I think 
that such an amendment petition may, in 
the discretion of the Judge, .be allowed, 
even after the expiry of that period, I can- 
not say that the discretion has been im- 
properly exercised by the District Judge 
in this case. If the petition cannot now be 
allowed to be amended, it is obvious that 
the petition must fail. 

It has been contended by Mr. Varadachari 
who appeared for the respondent that s. 35 
of the Act cures all the above defects in the 
election alleged by the petitioner. I adhere 
to the view 1 expressed in Devasigamony v. 
Sethuratna Iyer (1). Mr. Varadachari has 
called my attention to s. 57 (3) and to the 
fact that the English Act on which the 
decision in Nell v. Longbottom (2) was pass- 
ed, there is a section (s. 84) which shows that 
an election petition did not come under the 
scope of s. 42 of the English Act similar to 
s. 35 of the Indian Act, and that in the 
Indian Act there is no section similar to 

(2) (18C4) 1 Q. B, 767; 63 L. J. Q. B. 4C; 10 P. 103; 
70 L. T, 499, 



s. 84. He also urged that it is inconvenient 
to hold that the acts of a Board the mem- 
bers of which consist of persons like Mekha 
Pillai in this case are invalid. I agree with 
this view in all acts of the Board other 
than election, s. 35 cures such a defect. 
But I do not think that s. 35 applies to an 
election petition. I think the rules regarding 
election petition allowing the improper 
receipt or refusal of a vote to be questioned 
correspond to s. 84 of the English Act. Were 
it not so, the election petition becomes a fared. 
I do not think that s. 57 (3) can help us in 
this matter. It relates to the case of a 
dispute being raised as to the membership 
of a member himself and provides that he 
should be deemed a member pending such 
decision. 

But as I have already held the petition 
must fail and is, therefore, dismissed with 
costs. 

Order will follow. 

v. N. v. Petition dismissed, 

N. H. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

SECOND CIVIL APPEALED. 475 OP 1924, 

October 15, 1925, 

Present: Mr. Halifax, A, J. C. 

KESHEORAO DEFENDANT APPELLANT 

versus 
MAROTIRAO PLAINTIFF RESPONDENT. 

PartitionTemporary or permanent Presumption 
Burden of proof Practice Evidence proditced at late 
stage, whether should be admitted. 

A division of property, an arrangement whereby 
property is divided, a distribution of property are all 
exactly the same as a partition of property. But a 
partition may be either partial or complete and it may 
be either temporary or permanent. In the great 
majority of partitions of common property the paitition 
is meant to be permanent. Therefore, if nothing more 
is known about a partition except that it has been 
made, it must be taken to be a permanent partition 
unless there is evidence to show that it was temporary. 
The length of time for which a partition has been 
allowed to stand undisturbed or without re-adjuetment 
is a factor which may be taken into consideration in 
deciding whether a partition was temporary or per- 
manent, [p. 103, col. 2; p. 104, col. L] 

It is the duty of a Court to welcome any evidence 
that may be offered and indeed to search for it, and it 
is wrong to exclude any evidence that is relevant. If 
evidence which is relevant is tendered at a late stage 
such suspicion or disbelief of it as may be due to its 
production at a late stage will attach to it automatical- 
ly and if the other party has bad no opportunity 
because of the lateness of the stage at which the evi* 



L 0. 1926] 



KESHEORAO 17, MAROTI RAO. 



103 



dence is produced, of producing any rebutting evi- 
dence that they might have had, the disbelief is greut- 
ly increased, [p. 104, col l.J 

Second appeal against the decree of the 
District Judge, Wardha, dated the 25th 
of August 1924, arising out of the decision 
of the First Sub-Judge, Second Class, 
Waradha, dated the 12th February 1924. 

Messrs. N.G. Bose, R.B., and M.B. Niyogi, 
for the Appellant. 

Messrs. M. B. Kinkhede, R. B., and R. R. 
Jaywant, for the Respondent. 

JUDGMENT. There is no appeal and 
there is none in the Court of the District 
Judge in respect of field No. 57-1, which 
was originally sir land but is now apparent- 
ly recorded as khudlcasht because it is held 
by the defendant-appellant Kesheorao on a 
lease for VJtf; years from a person who has 
no other interest in the village except 
the proprietary right in that field. The 
decision that this land must be exclud- 
ed from the lands liable to partition is 
certainly correct, though the true state of 
affairs does not seem to have been realized. 

The total area of sir and khudkasht in 
the village is said to be 364*39 acres. It is 
admitted that 107 87 acres of this were 
acquired by Kesheorao in certain years 
between 1886 and 1903, and it is in issue 
between the parties whether he acquired 
them for his own benefit or for that of the 
whole proprietary body. In regard to the 
rest he pleaded that it was divided among 
the co-sharers about 1860, so that each of 
them became separate owner of the fields 
allotted to him. The rights in the two 
parcels of land clearly require separate 
examination. Even after it has been found 
that the division of the lands in 1860 was 
only a temporary arrangement, to say that 
Kesheorao, an eight anna proprietor, is 
properly entitled to only one half of all the 
sir and khudkasht in the village is to beg 
the question as to his acquisition of the 
10787 acres for himself or for all the 
proprietors. 

In regard to both parcels of land it has 
to be remembered that the plaintiffs can at 
the most claim that Kesheorao shall hand 
over to them so much land as will make 
the area of their land equal to the area 
they ought to hold, that is five sixteenth of 
the total. They cannot claim what belongs 
to the proprietors of the remaining three 
annas share in the village, the defendants, 
other than Kesheorao, who are content that 

Kesheorao should retain it, 



In this connection it may be mentioned 
that one of those other defendants, holding 
an one anna share but no sir land at all, 
disclaimed all interest in the suit, but was 
not discharged and was made a respondent 
in this and in the lower Appellate Court, 
He did not appear in the lower Appellate 
Court, but has appeared here, and his costs 
must be paid by the appellant, But the 
other defendants, who own a two anna 
share and do hold 6 32 acres of sir, were die- 
charged in the first Court before the issues 
were framed. They also have been implead- 
ed as respondents in both Appellate Courts, 
and the appellant is saved from having to 
pay for his carelessness only by the failure 
of those respondents to appear in either 
Court. 

In discussing the matter of the areas of 
the original home-farm, apart from Kes- 
heorao's subsequent acquisitions, which are 
proportionate to the shares of the parties 
in the village, it has to be assumed that 
the 'whole of the 70'80 acres held by the 
plaintiffs is exactly the part of the original 
home-farm they have always held, neither 
more i nor less. The truth of this assump- 
tion is of course, extremely.doubtf ul, as they 
also may have made subsequent acquisitions. 
The total home- farm in the village is 
364'39 acres, and the area acquired by 
Kesheorao from tenants is 107'87 acres. 
That leaves 236*52 acres. The area in 
proportion to the share of the parties, 
which may be called their proper areas, 
and the areas they actually hold are as 
follows: 

Proper area Actual area 
KesheoRao Ans. 8 128*26 179*40 

The plaintiffs Ans, 5 8016 70*80 

The other de- 
fendants Ans. 3 4810 6'32 
It appears then that of the old home-farm 
Kesheorao would have to hand over not 
more than 9'36 acres to the plaintiffs; even 
if it has been held in severalty but owned 
in common during all these years. 

As to the partition, the issue has been 
much complicated by the common use of 
terms in narrow senses without any defini- 
tion of them. A division of property, an 
arrangement whereby property is divided, 
a distribution of property are all exactly 
the same as a partition of property. But a 
partition may be either partial or complete 
and it may be either temporary or perma- 
nent. The partition of the home- farm that 
was certainly made in this case about 1860 



lot 



or not long after, was partial, because it 
was not a partition of all the property of the 
co-owners, and the only question is whether 
it was temporary, that is to say, left 
the parties still co-owners of the land 
that was divided up among them, with an 
understanding that it could he restored to 
their joint possession or divided up again 
differently at some time in the future, or 
was permanent, that is to say, was not 
subject to re-adjustment and left each co- 
sharer a separate owner of the land allotted 
to him. 

Now in the great majority of partitions 
qf common property, the partition is meant 
to be permanent. Therefore, if we know 
nothing about a partition except that 
it has been made, we must believe 
that it was a permanent partition, unless 
somebody can give us good reason for 
believing his allegation that it was tempor- 
ary. But in this case there is not only no 
reason for believing the partition was 
temporary but there are strong additional 
reasons for believing it was permanent. 
The strongest of them is the length of time, 
nearly seventy years, that it has been 
allowed to stand undisturbed and without 
re-adjustment, I hold, therefore, that all 
the home-farm land held by Kesheorao, 
apart frpm the 107*87 acres he acquired by 
purchase frpm tenants and by lease from a 
co-o^ner of the village, is his own separate 
prpperty and the plaintiffs are not ths 
owners of any share in it. 
1 Of the 107*87 acres, the 12'21 acres o$ 
No. 57-1 mentioned at the beginning of this 
judgment has to be left out of consideration. 
Tjh&t l eaves 95*66 acres comprised in six 
fields all purchased by Kesheorao from 
absolute occupancy tenants, two together 
in 18$6, two together in 1893 and two 
separately in 1903. Tlu 1 deed of sale of two 
of these fields was excluded f fpm evidence 
because of its late production. It has 
a<lw$ys aeeme.d tp me to be the duty of the 
Court to welcome, any- evidence tfyajt may be 
qffered and it^eed to, 3wch for it a^icl to 
be wrong to exclude any evide^e that is 
relevant ; if it, i$ tendered late suQh suspi- 
cion or disbelief of it as may be due to that 
fact will attach to it automatically, and if 
tfye other party has had no opportunity, 
because of that latenegs of producing of 
rebutting evidence they m^ght hav^ had, 
tho disbelief is greatply increased. 

IJut here there w$s nip necessity to pro- 
duce or examine any of thesQ documents. 



RAM KUMAR DAS V, HARANARAIN DAS. [92 1. C. 1926] 

It is proved otherwise that Kesheo Rao 



purchased all these fiel<ls not later than 
1903 from the absolute occupancy tenants 
of them. We are concerned only with that 
fact and not with any of tjie terms of the 
purchases. Kesheo Rao has undoubtedly 
held all these fields from 1903 or earlier 
as the separate owner of them. He was 
entitled to call himself the absolute oc- 
cupancy tenant of them against the pro- 
prietary body of the village, and if he 
bought them without due notice to the 
proprietary body, as he probably did, he 
might have been turned out of them by a 
proper suit instituted within the time 
allowed. He seems not to have regarded 
himself or to have been regarded by 
the other sharers in the village as an 
absolute occupancy tenant, but as a 
separate holder of khudkasht land. I am 
not prepared to say which of ttese two is 
the more valuable right, but it is beyond 
doubt that Kesheorao was regarded by 
himself and by everybody else as the 
separate owner of that land, and having 
held it so for a great deal more than 
twelve years he became the separate owner 
of it, whether he was so at the beginning 
or not. 

It may be remarked that the order of the 
Revenue Officer put the matter correctly 
and concisely, probably because he was 
not confused by half understood pleas of 
law. The decree of the lower Appellate 
Court will be set aside and the plaintiffs 1 
suit will be dismissed. The plaintiffs will 
pay all the costs in all three Courts. 

z K, 



CALCUTTA HIGH COURT. 

APPEAL PROM APPELLATE DECREE No. 233 

OP 1923. 

July 3, 19?5. 

Present: Justice Sir Rabington N>wbould, 

KT., and Mr. JnsiK-o (Ira ham 
RAM KUMAR DAS DEPENDANT 
APPELLANT 

versus 

HARANARAIN DAS alias D1NABANDHI 
DA8 AND offiBits Pro forma DEFENDANTS- 
RESPONDENTS. 

Evidence Act (I of 1872} t 8. 18, scope of^Amnion 
of right rnqde in previous suit, admimbildty of 
4ct (IX B. 0. of 188(0, j. 9&~Roq,d sw return, 



SAM KUMAR DAS V. HAftNARAIN DAS. 



98 1 0. 1928] 

admissibility of, in favour of party filing return 
Appeal, secondValue of documentary evidence, whe- 
ther can be considered 

The language of s. 13 of the Evidence Act is very 
wide and covers the assertion of a right in a previous 
suit in which that right was in dispute. It is not 
necessary that the right should have been successfully 
asserted; the more assertion of the right is sufficient, 
[p. 105, col. 2.] 

Section 95 of the Cess Act is absolute in its terms 
in iI-i'Vi : t that a load cess return shall not be 
mlrnHMihV in evidence in favour of the person on 
whose behalf it was filed; it is immaterial whether it 
is sought to be put in evidence directly to prove an 
admission or indirectly for some other purpose, 
[p. 106, col. l.J 

A Court of second appeal will deal with the ques- 
tion of the admissibihty in evidence of a document 
but not with its evidentiary value, [p. 105, col. 2.] 

Appeal against a decree of the Subordi- 
nate Judge, Midnapore, dated the 7th of 
September 1922, reversing that of the 
Munsif, Fourth Court, Tamluk, dated the 
27th of July 1921. 

Mr. S. C. Maity and Babu A, Purba 
Charan Mookerji, for the Appellant. 

Mr. Mohendra Nath Roy and Babu Son- 
tosh Kumar Pa, for the Respondents. 

JUDGMENT. This is an appeal 
agaipst the decree which the plaintiffs have 
obtained for khas possession of the land in 
dispute on establishment of their niskar 
right thereto.' The only point urged in this 
appeal is that in coming to a finding in 
favour of the plaintiffs- respondents the 
lower Appellate Court has relied on certain 
documents which are inadmissible in evi- 
dence. These documents are Exs. 10, 101, 
11, 13, 14, 4, 2, 8 and 9. Exhibits 10, 13 and 
14 are the decree plaint and solenama in a 
particular suit. In this suit the lands in 
suit are described as the niskar property of 
Shama Charan Das which had been inherit- 
ed by his heirs who were parties to that 
suit. 

It is contended that these documents can- 
not be admissible as in that suit there was 
no contest as to the plaintiffs right and it 
c&npot bet said th$t thia right was asserted 
or claimed within the meaning of s. 13 of 
the .EJ-videpce Act. The latest ruling on 
tjiis point, i$ the ca^e of Gopi Siundari Davi 
v. Khtrod Gobinda Chowdfiury, (1). Refrr- 
epce is there made to the decision of th,e 
Judicial Committee of the Privy Council in 
Diwomoni Ch&udhurani v. Br&jo Uofiini 
Gtwudhurani (2), wixere Lord Lintfley in. 4e- 
Uveripg th,eir Lordship's judgment observed 

(i; 82 Ind. Cas. 99; 28 G. W. N. 942; (1925) A. I. R. 
(Q.) 194, 

(2) 29 C. 187; 29 I. A. 24; 6 C. W. N. 386; 12 M L. 
J. 83; 4 Bom, L. R, 167; 8 Sar, P, C, J.>22$ (P, 0.). 



103 



that the words of s. 13 of the Evidence Act 
were very wide. In our opinion they are 
wide enough to cover the assertion of niskar 
in the partition suit where that right was in 
dispute. 

On behalf of the appellant great stress 
is laid on the fact that Mr. Justice 
Richardson who delivered that judgment 
referred to the right of the plaintiff being 
successfully asserted in the judgment 
which was sought to be put in evi- 
dence. Section 13 does not qualify the 
word "asserted" by the epithet "success- 
fully," There is nothing in that section 
which requires that the right should be 
successfully asserted. But giving a widd 
interpretation to it the mere assertion is 
sufficient. We hold, therefore, that there is 
no reason to exclude this documentary 
evidence Exs. 10, 13 and 14. As regards 
the other documents to which objection has 
been taken with the exception of Ex. 2 the 
same remarks apply. They are, in our 
opinion, admissible as evidence of transac- 
tions in which the plaintiffs' niskar right 
was asserted. In second appeal we have to 
deal only with the question of the admissi- 
bility in evidence of the documents and not 
their evidentiary value. In the case of some 
of them, for instance, Exs. 10, 13 and 14 
and also Exs. 8 and 9 the chitta and khatia?i 
their evidenciary value appears to be slight. 
Still they are some evidence that the plaint- 
iffs were in possession of the land in dispiite 
claiming it as their niskar. It is clear with 
regard to Exs. 10 (1) the decree passed in a 
damage suit in 1845 brought by the plaint- 
iff's predecessor against Janaki Ram Panda 
that the lower Appellate Court was wrong 
in describing Janaki Ram Panda as the 
predecessor-in-interest of defendant No. 1. 
The defendant No. 1 the purchaser at a sale 
for arrears of revenue cannot rightly be 
described as the p redecessor-in-interest of 
the previous proprietor. But this does not 
affect the question of the admissibility of 
this document, since it is admitted not as a 
document inter partes but under the pro- 
visions of s. 13 of the Evidence Act. 

As regards Ex. 2 we hold that the con- 
tention raised on behalf of the appellant 
must prevail. Exhibit 2 is a road cess 
return submitted by the plaintiffs. Sec- 
tion 95 of the Cess Act IX B. C. of 1880 pro- 
vides that such a return shall not- be ad- 
missible in favour of the person on whose 
behalf it has been filed.. The learned Sub- 
ordinate Judge appears to have held that 



106 



GOVINSA NADAN V. RAMA9AMI CHETTIAR. 



this document was admissible because it 
was put in evidence not directly as an 
admission by the plaintiffs but because con- 
sidered with other evidence it proved an 
implied admission by defendant No 1 of the 
plaintiffs 1 niskar title. But even so, this docu- 
ment was put in evidence as a document in 
favour of the plaintiffs, and was, therefore, 
excluded by the provisions of s. 95. That 
section is absolute in its terms in declaring 
that a road cess return shall not be ad- 
missible in favour of the person on whose 
behalf it was filed, and it is immaterial 
whether it was put in evidence directly to 
prove an admission zor indirectly for some 
other purpose. This being so we must 
decree the appeal on this ground. 

We set aside the judgment and decree of 
the lower Appellate Court and remand the 
appeal to him for re-hearing after excluding 
from consideration the document Ex. 2. 
The costs will abide the result, 



z, K. 



Appeal allowed: 
Case remanded. 



MADRAS HIGH COURT. 

SECOND CIVIL APPEAL No. 95 OF 1923. 

October 6, 1925. 

Present: -Mr. Justice Odgers. 

QOV1NDA NADAN REPRESENTED 

BY HIS AGENT GOVINDASAMI VENU 

LIDAYAN PLAINTIFF APPELLANT 

versus 

A. Y. R. M. R. M. RAMA8AMI 
CHETTIARDEFKNDANT RESPONDENT. 

Limitation Act (IX of 1908), Sch. I, Art 85 Mutual 
open and current account Shifting balance, effect 
of. 

In order that an account may be mutual, open and 
current within the meaning of Art 85 of Sch. I to the 
Limitation Act, there must be transactions on each 
side creating independent obligations on the other 
and not merely transactions which create obligations 
on th one &ide, those on the other being merely com- 
plete or partial discharges of such obligations, fp. 106. 
col. 2; p. 107, col. 1 ] 

Hirada Basappa v. Gadigi Muddappa t 6 M. H. R. 
142, relied on. 

Where an account between two persons resembled 
a Bank pass-book where deposits of monies were made 
and withdrawals of monies took place from time to 
time the balance being in favour either of one or other 
as the case might be: 

Held, that the mere shifting of account from one 
side to the other did not constitute mutual and inde- 
pendent obligations, [p. 107, col. 1.] 

Second appeal against the decree of the 
District Court, East Tan j ore at Nega- 



[92 I. 0. 1925] 

patam in A. 8. No. 252 of 1921 (A. 8. 
No. 1096 of 1919 of the District Court, 
West Tanjore) preferred against the decree 
of the Court of the Additional District 
Munsif, Tiruvalur, in 0. 8. No. 434 of 
1917 (O. 8. No. 25 of 1917 of the Court 
of the District Munsif of Tiruvalur), 

Mr. A. Balakrishnen, for the Appel- 
lant. 

Mr. V.Ramaswamy Iyer, for the Respond- 
ent. 

JUDGMENT. I postponed judgment 
on the 15th September in order to give the 
appellant's Vakil an opportunity of satisfy- 
ing me that the District Judge went into 
the question of the nature of the accounts 
in the case in spite of its not being taken 
in the grounds of appeal to thg lower 
Appellate Court. The learned Vakil now 
states that he is unable to get information, 
on the point. 

The suit is brought by the plaintiff for a 
sum of Rs. 795 odd which is said to be due 
to him from the defendant a money-lender. 
The course of business between the parties 
was apparently that the plaintiff should 
draw money whenever he wanted it and 
should also deposit money with the defen- 
dant. The plaintiff has not produced any 
accounts of his own. He relies on a copy 
of the defendant's account, Ex. A. The 
District Munsif found that the plaintiff 
had proved his case as he held that a settle- 
ment hnd taken place on either the 14th 
or 17th of December 1913. The District 
Judge, to whom an appeal was taken, dis- 
credited the evidence with regard to this 
settlement and that is a finding of fact 
by which I am bound in second appeal. 
But the learned Judge goes on to con- 
sider whether the transaction is in the 
nature of a mutual, open and current ac- 
count and would, therefore, save limitation 
if such was the case and the argument 
before me has been that the account in 
Ex. A is such an account. Now in order 
to see what the requisites are for such an 
account, we should look at the case of 
highest authority as far as I know in this 
Court, i. e., the judgment of Holloway, J,, 
in Hiradq, Basappa v, Gadigi Muddappa (I). 
In order that an account may be mutual 
"there must be transactions on each side 
creating independent obligations on the 
other and not merely transactions which 
create obligations on the one side, those on 

(1) 6 M, H. 0. R. 142, 



[92 1. 0. 1926J 

the other being merely complete or partial 
discharges of such obligations " That 
statement has been repeated in many judg- 
ments ever since the year 1871 and it has 
over and over again been taken as a cor- 
rect statement of the law. It may be that 
in the account before me the* balance 
shifted from one side to the other from 
time to time. See Skive Gowda v. Fer- 
nandez (2) and Kunhikuttiali v. Kunhammad 
(3J. But the account, as far as I have 
been able to see, resembles exactly a Bank 
pass-book where deposits of monies are 
made and withdrawals of monies take 
place from time to time, the balance being 
in favour either of the customer or of the 
Bank as the case may be at any given 
moment. I , therefore, agree with the learn- 
ed District Judge that there do not appear 
to be independent obligations on both 
sides and that a mere shifting of the ac- 
count from one side to the other is not 
enough to constitute mutual obligations. 

The second appeal must be dismissed 
with costs. 

v. N. v. 

Appeal dismissed. 

(2)8Ind. Gas. 141'; 34 M 513; 8 M L. T. 412 (1911) 
M W N.I; 21 M.L .1 391 

(3) 71 Ind. Gas. 466; 44 M. L. J. 184; 17 L. W. 243; 
(1923; M, W N. 81, (1923) A L R. (M.) 278. 



CALCUTTA HIGH COURT. 

APPEALS FROM APPELLATE DBOKBBS Nos. 1940 
AND 1954 OF 1922. 

May 11, 1925. 

Present: Mr, Justice Cuming and 
Mr. Justice Chakravarti. 

IN No. 1940 OF 1922 
HEM CHANDRA SEN AND OTHERS 
PLA INTIFFS APPELLANTS 

t ersus 

GIRISH CHANDRA 8AHA AND OTHERS 
DEFENDANTS RKSPONDBNTS. 

IN No. 1954 OF 1922 

ARJUN DHUPI AND OTHERS DEFENDANTS 
APPELLANTS 

versus 

HEM CHANDRA SEN AND OTHERS- 
PLAINTIFFS RESPONDENTS. 

Bengal Tenancy Act (VIII of 188,5), s. 50 Old 
tenancy Additional area on additional rent Pre- 
sumption of fixity of rent, whether applicable Burden 
of proof, 

Where a tenant adds new area to his old tenancy 
OR additional rent, ho is not deprived ot the presump* 



HfeM CHANDRA SEN V. GIRISH CHANDRA SAHA. 



167 



tion arising under e. 50 of the Bengal Tenancy Act so 
far as the old tenancy is concerned. The onus of prov- 
ing what the old area was is upon the tenant, [p. 108, 
col. 1 ] 

A tenant cannot, however, by adding new area to 
the old tenancy, claim the benefit of the presumption 
so far as the added area is concerned, [ibid ] 

Appeals against the decrees of the Special 
Judge, Tipperah, dated the 22nd April 
1922, modifying those of the Assistant 
Settlement Officer, Comilla, dated the 25th 
September 1920. 

Bab us Birendra Chandra Das and Nri- 
pendra Chandra Das, for the Appellants. 

Babu Jatindra Mohan Ghose, for the Re- 
spondents, 

JUDGMENT. 

IN APPEAL No. 1940 OF 1922. 

Chakravarti, J.- This is an appeal 
by the plaintiffs and arises out of an appli- 
cation made by the landlord under s. 105 
of the Bengal Tenancy Act. The question 
with which we are concerned is whether 
the landlords are entitled to an enhance* 
ment of rent under s. 30 (6) of the Bengal 
Tenancy Act. 

The defence of the defendants was that 
the tenancy was held at a permanent 
fixed rent ; and the tenants in order to 
establish their claim relied upon the pre- 
sumption under s. 50 of the Bengal Tenancy 
Act. The Assistant Settlement Officer in 
the Court of first instance found that as 
regards the khatians which are now before 
us that is Khatian Nos. 17 and 25, the 
presumption was rebutted because it was 
shown that additional land was added to 
the holding at a time subsequent to the 
Permanent Settlement. In that view the 
Trial Court held that the tenants were not 
entitled to the presumption under s. 50 of 
the Bengal Tenancy Act. 

On appeal by the defendants the learned 
Special Judge has held, reversing the 
judgment of the First Court, that the tenants 
were entitled to the presumption under that 
seclion, The learned Judge found that the 
variation of the rents was bas$d on the vari- 
ations in the area of the holding and, there- 
fore, he held that the presumption under 
8. 50 applied to the holding as it is now 
in possession of tenants with the added 
area. 

In this second appeal by the plaintiffs 
it has been contended by the learned 
Vakil for the appellants that, upon the find- 
ings of the learned Judge, the tenants 
were not entitled to the presumption 
under s, 50 of the Bengal Tenancy Act. 



108 



HEM CHANDRA SEN V. GIRT8K CHANDRA 8AHA. 



[2L 0.1926] 



It appears to us that the contention of 
the appellants ought to succeed only partial- 
ly. Upon the findings it appears that 
there was an old tenancy with a definite 
rent which was held for more than 20 
year3 at a uniform rent; but it appears 
farther from the findings that additional 
rent was added for additional area and in 
recent times the rent of the old tenancies 
was paid along with the additional rent 
for the added area. The question, therefore, 
arises is this : Do the tenants by holding 
additional lands for additional rent and 
paying the same along with the old rent 
and the old area lose the presumption as 
regards the old area and the old rent also? 
We think not. And also we think that 
the tenants arc not entitled to the presump- 
tion for the added area although they are 
entitled to the presumption for the area 
which they held as was presumed before 
the Permanent Settlement. In a case like 
this thft onus of proving what the old 
area was and what the area is subse- 
quently added, is upon the tenants, and 
if they show what the old rents were 
then they are entitled to the presump- 
tion under s. 50 so far as the old 
tenancy is concerned, because, by showing 
that for 20 years immediately before the 
suit they were holding a particular area 
at a particular rent, the presumption under 
s. 5Q arises, But the tenants, it seems to 
us, are not, by adding a new area to the 
old tenancy, entitled to get the benefit 
of the presumption so far as the added 
area is concerned for the simple reason that 
the tenants or their predecessors were not 
holding those lands from before the Perma- 
nent Settlement. They were added sub- 
sequently. In that view we think that so 
far as Khatians Nos, 17 and 25 are concern- 
ed, the case must go back to the lower Appel- 
late Court and that Court will, if there is 
evidence, find what was the area and the 
rent of the old tenancy and the area and 
the rent which were subsequently added. 
Bat so far as the old tenancy is concerned, 
the tenants will be entitled to a presump- 
tion as to the fixity of rent. But eo far 
as the added area is concerned the learned 
Special Judge will fix the rent for that 

area 

In this view this appeal succeeds and the 
decree of the lower Appellate Court is varied 
to the extent. 

As regards Khatian No. 29, it has been 
admitted before us by the learned Vakil 



that he cannot press the point as regards 
this khatian, because, there has been no 
proper representation of the parties* 

The appeal, therefore, so far as this 
khatian is concerned is dismissed. As the 
appeal succeeds only in part we do not 
make any order as to costs of this appeal. 
IN APPEAL No. 1954 OP 1922. 

The defendants are the appellants and 
this appeal arises out of an application 
made by the plaintiffs-landlords for 
settlement of fair and equitable rent. 
The Special Judge in Khatians Nos. 3, 10, 
13, 20, 22, 24, 30, 33, 34, 42, 47, 49 and 
55 allowed the claim of the plaintiffs- 
landlords. Against the decree the present 
appeal has been preferred by the defend- 
ants. It appears that some of the plaint- 
iffs-respondents died and no application 
was made within three months for substitu- 
tion of the heirs. The matter came up to 
this Court and it was ordered on the 
application of the appellants that the appeal 
so far as the deceased respondents were con- 
cerned abates and the appeal would proceed 
against the other respondents and the 
appellants gave it up so far as the deceas- 
ed respondents were concerned. It being 
an appeal against a decree in favour of 
the plaintiffs it appears to us that the 
appeal is incompetent when some of the 
plaintiffs are not before the Court and 
the appeal has failed so far as the deceas- 
ed respondents are concerned. In that 
view it is obvious th^t to hold otherwise 
would lead to an ' . : . position. 
The deceased plaintifts heirs would be 
entitled to an enhanced rent as settled by 
the Special Judge and if we allowed 
this appeal the tenants would be en- 
titled to hold the tenancy at a fixed 
rent so far as some of the plaintiffs land- 
lords are concerned. In the absence of some 
of the plaintiffs not represented in the lower 
Appellate Court the whole appeal becomes 
incompetent. 

The result is that this appeal is dismiss- 
ed with costs. 

Cuming , J. I agree. 

N. n. Appeal No. 1940 allowed] 

Appeal No. 105^ dismissed. 



THABAMAL PABKAM iCALAPATHOOfc V. URUfPOTlL AMBU. 



[921.0.1926] 

MADRAS HIGH COURT. 

CIVIL REVISION PETITION No, 776 

OF 1923. 

September 8, 1925. 

Present: Mr. Justice Jackson. 

THARAMAL PARKAM KALPATHOOR 

THULICHAPUTHIATUTH SANKARAN 

NAIR PETITIONER 

versus 

URUPPOYIL AMBU AND OTHERS 
RESPONDENTS. 

Civil Procedure, Code (Act V of 1908), s lid, 
O.XXI t rr. 13, 17 --Execution application, defects in 
- - Court, whether bound to give time for correction 
Dismissal of petition Revision 

Under O XXI, r, 17, P. 0., when an execution 
application is presented which, does not fulfil the re- 
quirements of rr. 11 to 14, the Court has an option either 
to reject t" "" ' or to allow the defect to be 

remedied to be fixed by it. 

Where it declines to adopt the latter course, it can- 
not be held to have refused jurisdiction so as to war- 
rant interference in revision under s. 115, 0. P. 0. 

Vemuri Pitchayya v. Ankineedu Bahadur Zemindar 
Garu, 76 Ind. Cas. 750, 45 M. L. J 6ol, 18 L W 739; 
33 M L T. 125; (1924) A. I. R. (M.) 367, referred to 

Petition, under s. 25 of Act IX of 1887, 
praying the High Court to revise the order 
of the Court of the District Munsif of Payoli, 
dated the 15th March 1923, in R. E. P. 
No. 182 of 1922 in 8. 0. S. No. 229 of 1910. 

Mr. R. Govinda Menon, for the Petitioner. 

Mr. K. P. Ramakrishna Iyer, for the Re- 
spondents. 

JUDGMENT. Petitioner seeks to 
revise the order of the District Munsif of 
Payoli in R. E. P. No. 182 of 1922 in S. C. 
8. No. 229 of 1910. 

Petitioner obtaiued a decree on 7th March, 
1910. On 28th February, 1922, he applied 
for attachment promising to furnish a list 
of immoveables. The application was ad- 
journed from time to time till July 1922, 
for the appointment of a guardian and 
then again from time to time till 15th 
March, 1923, when it was finally dismiss- 
ed, because the list of immoveables was 
only produced on 5th April, 1922, after the 
expiry of 12 years from 7th March, 1910. 

I cannot hold that the order is illegal. 
The Court has an option under 0. XXI, r. 
17, either to reject the application or to 
allow the defect to be remedied within a 
time to be fixed by it. Possibly the Munsif 
might, even on 15th March, 1923, have order- 
ed the list of immoveable properties to be 
produced on 5th April, 1922, which would 
have dated the petition as from 28th 
iFebruary 1922, and would thus have saved 



109 



the bar of limitation. But he cannot be 
said to have refused jurisdiction by declin- 
ing to pass this remedial order. He is 
equally acting within his discretion when 
he finds that no time was fixed for remedy- 
ing the defect, and, therefore, the applica- 
tion must date from the time when it fully 
conformed to 0. XXI, r. 13, which would be 
April 5. Tlxe ruling reported in Vemuri 
Pitchayya v. Ankineedu Bahadur Zemindar 
Garu (1), turns on a converse case. There- 
the District Munsif had exercised his dis- 
cretion by fixing a time for the production 
of the descriptive shedule after the expiry 
of 12 years and this Court declined to 
interfere. But, of course, it was not held 
that the Munsif was bound to exercise his 
discretion in that manner. If he had 
liked to adopt the alternative he could have 
dismissed the application. Spencer, J., 
observes: "I am, with due respect, inclin- 
ed to think that the words 'on receiving 
an application for the execution of a decree' 
in r. 17 were not intended to raak# a party 
suffer for the failure of the Court establish- 
ment, which checks plaints and execution 
petitions on their presentation to at once 
notice all defects in any application that 
may be received and that these words do 
not preclude a Court from making an order 
allowing a defect to be remedied at a 
later stage.'' This can hardly be taken as 
putting the whole responsibility upon the 
Court. An applicant who files an applica- 
tion not in compliance with 0. XXI, r. 13, 
does so at his own risk, and he cannot de- 
mand, as of right, that it shall be regulariz- 
ed by the Court establishment. In the 
present case, too, there is no question of 
suffering for the failure of the establish- 
ment, because the petitioner knew all along 
that his application was defective, and re- 
medied that defect on his own initiative. 

This judgment has proceeded on the 
assumption warranted by Vemuri Pitchayya 
v. Ankineedu Bahadur Zemindar Garu (1) 
that a' Court retains its discretion to order 
the defect to be remedied after the applica- 
tion has been admitted and registered but 
before it has been finally disposed of in one 
of the ways mentioned in O. XXI, r. 17 (1). 

As regards Asgar Ali v. Troiloka Nath 
Ghose (J) which the lower Court cites, it 
may be observed that the point specifically 
referred to the Fnll Bench has now been 

(1) 76 Ind. Cas. 750; 45 M. L, J. 651; IS L. W, 739; 
33 M. L. T. 125; (1924) A, I. R. (M.) 367. 

(2) 17 0, 631; 8 Ind, D*c. (N. a,) 960 (F B,). 



no 



LAXMAN BHIKAJI V. SECRITABT OF STATE FOR IWDtA, 



[92 1. 0. 



Battled bycl. 2 of 0. XXI, r. 17, which is an 
addition to the old s. 245. If an applica- 
tion is defective by not containing a de- 
scription of the property, it is none-the- 
less an application provided that the Court 
has permitted the defect to be remedied. 
It also happened to be ruled in the same 
case that such permission could only be 
given before admission and r. irl-! -fi'ijn 
(pp. 635-636). Whether "on receiving ' in 
O. XXL, r. 17 (1) requires such strict inter- 
pretation is the question discussed in 
Vemuri Pitchayya v. Ankineedu, Bahadur 
Zemindar Garu (I). Of course it would 
make the petitioner's case considerably 
weaker, if it were held, following Asgar 
Ali v. Troilokya Nath Ghose (2), that the 
Munsif had no jurisdiction in 1923 to order 
the defect to be remedied, but even allow- 
ing in the light of Vemuri Pitchayya v. 
Ankineedu Bahadur Zemindar Garu (1) 
that he had jurisdiction I do not find that 
he exercised it improperly. 

The petition is dismissed with costs. 

v, N. Y. Petition dismissed. 



BOMBAY HIGH COURT. 

FIRST CIVIL APPEAL No. 228 OP 1923. 

Ja-nuary 6, 1925* 

Present : Sir Norman Macleod, KT., 
Chief Justice, and Mr. Justice Crump. 
BHIKAJI L AXMAN BHIKAJI AND ANOTHER 
PLAINTIFFS APPELLANTS 

versus 

THE SECRETARY OF STATE FOR INDIA 
DEFENDANT RESPONDENT. 

Bombay Hereditary Offices Act (III of 187 ^ ss 15 } 
73 Bombay Re-venue Jurisdiction Act (X of 1876), 
s. Jf. (a)- -Widow, whether holder of watan Commuta- 
tion order p , passed at instance of widow, validity of 
Order passed without recording investigation or notice 
to other members, validity of Suit for declaration 
of invalidity of commutation order, maintainability 
of. 

The interest of a widow in a watan is to be compared 
to the interest of a Hindu widow in her husband's 
estate, [p. Ill, coi. 2.] 

A widow holding an interest in watan property for 
the term of her life or until her marriage is not a 
"holder" within the meaning of that term in s. 15 of 
the Bombay Hereditary Offices Act, and the Collector 
negotiating with such a widow is not authorized to 
pass a commutation order under s. 15. [ibid.] 

A commutation order passed under e. 15 of the 
Bombay Hereditary Offices Act, without making a 
record of any investigation or giving any opportunity 
to the other members of the watan family of being 
heard and without recording reasons is invalid* [p, 112. 
sol, l.j 



A suit for a declaration that a commutation order 
passed under s. 15 of the Bombay Hereditary Offices 
Act is invalid on the ground that it was passed at the 
instance of a person who was not a "holder" within 
the meaning of s. 15 and that the provisions of s. 73 
of the Act had not been complied with is not barred 
by the provisions of s. 4 (a) of the Bombay Revenue 
Jurisdiction Act. [ibid] 

First appeal from the decision of the 
District Judge, Belgaum, in Suit No. 7 of 
1921. 

Mr. H, C. Coyajee, (with him Mr. D. R. 
Manerikar), for the Appellants. 

Mr. S. S. Patkar, Government Pleader, 
for the Respondents. 

JUDGMENT. 

Macleod, C. J. The plaintiffs sued 
for a declaration that the order of com- 
mutation of kulkarniki service in regard to 
five villages in the Khanapur Taluka of 
the Balgaum District was ultra vires of the 
Collector and was not binding on them. 

The defendant, the Secretary of State, 
claimed that the suit was barred under paras 
2 and3 of s. 4 (a), Bombay Revenue Jurisdic- 
tion Act ; that the order of commutation 
of the kulkarniki service was not ultra vires 
of the Collector; that Laxmibai at whose 
instance the order was passed was in 1915 
the representative of the persons beneficial- 
ly interested in the watan and was the 
duly registered representative watandar, 
and so was a "holder" as defined in cl. 4 of 
s. 15 of Bombay Act III, of 1874, and that 
the settlement made with her was, therefore, 
legal and binding on her successors, the 
plaintiffs, under cl. 3 of that section. 

One Bhikaji Laxman was the sole repre- 
sentative kulkarniki watandar of seventeen 
villages, including the five mentioned in 
the plaint, and his widow, Laxmibai had 
been registered as the sole representative 
watandar after Bhikaji's death. On Septem- 
ber 9th 1878 Laxmibai adopted plaintiff's 
father, Laxman, and two days later passed 
the adoption deed, Ex. 19. Laxman's 
natural father, Krishnaji on the same date, 
September 11, passed an agreement that 
Laxmibai should enjoy the right of 
kulkarniki service in the five plaint villages 
for the term of her natural life for mainte- 
nance. 

Thereafter disputes arose between Laxmi* 
bai arid Laxman which resulted in a suit 
being field, No. 10 of 1*96, in which Lax-! 
man got a decree that his adoption was 
valid but Laxmibai's rights under the 
agreement were preserved. Laxman's name 
was then entered in the register as watandaf 



[92 L 0. 1926] 

for twelve out of the seventeen village8, but 
Laxmibai's name was retained for the five 
plaint villages, In 1913 Laxnian died, leav- 
ing a widow, Sitabai, and two minor eons, 
the present plaintiff's. On January 24, 
1915, Laxniibai applied to the Collector to 
commute the right of kulkarniki service 
with respect to the plaint villages. On 
that application the commutation order was 
passed by the Collector. Laxmibai died on 
November 25, 1917, and thereafter Sita- 
bai as plaintiffs' guardian asked the As- 
sistant Collector to cancel the commuta- 
tion order. This was refused, and the 
refusal was confirmed by an order of the 
Commissioner, and also by Government. 
Sitabai then gave notice that she would 
file a suit. Eventually the present suit was 
filed on September 16, 1921. 

The District Judge has dismissed the 
plaintiffs' suit on the ground that it was 
barred by s. 4 (a) of the Bombay Revenue 
Jurisdiction Act. Assuming that it is a suit 
to obtain a declaration that the order of the 
Collector was ultra vires, and, therefore, 
null and void and not binding on the plaint- 
iffs, the question is whether the plaintiffs 
are not entitled to prove certain facts which 
would justify the Court in granting them 
the declaration asked for in spite of the 
provisions of s. 4 (a) of the Bombay Revenue 
Jurisdiction Act. 

In Maganchand v. Vithalrao (1) the Court 
found that the Assistant Collector's order, 
purporting to be made under s. 11 of the 
Hereditary Offices Act, was unauthorized, 
and, therefore, held that that order was no 
bar to the maintenance of the plaintiff's suit. 
Relying on that decision, two points have 
been taken by the appellants' Counsel before 
us : (1) that Laxmibai was not the "holder" 
of the watan within the meaning of that 
term in s. 15 of Bombay Act III of 1874 ; 
and (2) that the provisions of s. 73 of the 
Act had not been complied with, and that, 
therefore, the order passed by the Collector 
directing commutation of the watan was 
not a proper order, so that the provisions 
of s. 4 (a) of the Revenue Jurisdiction Act 
did not apply. It does not appear that 
when Act III of 1874 was passed, it was 
contemplated that the widow of a watendar 
could succeed to him as watandar. "Wat- 
andar" according to s. 4 of that Act, 
means a person having an hereditary in- 
terest in a watan It includes a person hold- 

(1) 17 lad, Cas. H8; 37 B, 37; 14 Bom, L, R. 703. 



LAXMAN BHIKAJI V. SECRETARY OF STATE FOR INDIA, 



in 



ing watan property acquired by him before 
the introduction of the British Government 
into the locality of the watan, or legally ac- 
quired subsequent to such introduction, 
and a person holding such property from 
him by inheritance. It includes a person 
adopted'by an owner of a watan or part of 
a watan, subject to the conditions specified 
in ss. 33 to 35. "Representative watandar" 
means a watandar registered by the Collector 
under s. 25 as having a right to perfoim 
the duties of an hereditary office. Although 
Laxmibai was registered under s. 25 as 
representative watandar, it does not follow 
that she was a watandar within the mean- 
ing of that term in s. 4, which includes 
for the purposes of the section any sole 
owner or the whole number of joint owners 
or any person dealt with as representative 
of the person beneficially interested or 
entered as such in the Government record 
at the time of the settlement, and it does 
not follow that she was a "holder" within the 
meaning of that word in s. 15 of the Act. 
By s. 2 of Bombay Act V of 18b6 "Every 
f emal member of a watan family other than 
the widow, mother or paternal grandmother 
of the last male owner, and every person 
claiming through a female, shall be postpon- 
ed in the order of succession to any watan, or 
part thereof, or interest therein, devolving 
by inheritance after the date when this Act 
comes into force to every male member of 
the family qualified to inherit such watan, 
or part thereof, or interest therein. The 
interest of a widow, mother or paternal 
grandmother, in any wata?i or part thereof, 
shall be for the term of her life or until her 
marriage only.' 1 Therefore, the interest of 
the widow in a watan is to be compared to 
the interest of a Hindu widow in her hus- 
band's estate. I doubt whether it was ever 
intended that the Government should be 
able to treat the widow as a watandar for the 
purposes of - ' l- : ' : .: the commutation 
of the watan service. In my opinion a widow 
holding an interest in watan property for 
the term of her life or until her marriage 
is not a "holder 11 within the meaning of 
that term in s. 15 of Act III of 1874. 

It would follow, therefore, that the Col* 
lector negotiating with a person who was 
not a holder of the watan was not authoris- 
ed to pass a commutation order under s, 
15 of the Act and the decision in Maganch- 
and v. Vithalrav Cl) is applicable to this 
suit. 

A further objection arises from the fact 



112 



KHODAY (UNGAfcHAfc SAH V. SWAMINAfcHA MtTDALtAfc. 



that the Collector had not complied with 
the provisions of s. 73 of the Act. That 
section is imperative and enacts that "No 
order under Partlll. .directing commutation 

of a watan sha.Ube passed, unless after 

an investigation recorded in writing and a 
proper opportunity afforded for the.hearing 
of claims and the production of evidence. 
In each such investigation... the Collector or 
other officer shall record his decision with 
the reasons therefor in his own handwrit- 
ing/' It is admitted that there is no record 
of any investigation having been made, 
or that any opportunity had been given to 
the other members of the watan family 
of being heard, or that any reasons were 
recorded by the Collector for his decision. 
The learned Judge considered that as the 
claimants did not take this point in the 
appeals to the Revenue Authorities, and as it 
was not set out specifically in the plaint, he 
was entitled to consider that the Collector 
had duly complied with the provisions of 
s. 73. Although it may be said that the 
plaintiffs did not specifically rely upon this 
fact in asking the Court to hold that the order 
was ultra vires, still in para. 5 of the plaint 
it is stated that the Collector made a settle- 
ment o! commutation some time in 1915 
without giving notice to the minor plaintiffs 
or their guardian, so that the question 
whether the Collector had complied with 
the provisions of s. 73 was in issue. 

I think, therefore, that as the provisions 
of s. 73 had not been complied with, any 
order of commutation passed by the Collector 
would not be a valid order, so that on this 
ground also the suit to set it aside will not 
be barred under s. 4 (a) of the Revenue 
Jurisdiction Act. In my opinion, therefore, 
the plaintiffs are entitled to succeed, and 
the appeal should be allowed and the 
declaration which the plaintiffs asked for 
decreed with costs in both Courts. 

Crump, J.I agree. 

z Ki Appeal allowed. 



MADRAS HIGH COURT. 

CIVIL SUIT No. 757 OF 1922. 

February 17, 1925. 

Present : Mr. Justice Srinivasa lyengar. 

KHODAY GANGADARA SAH- 

PLAINTIFF 

versus 
A. 8WAMINADHA MUDALI AND OTHEIS 

DBFBNDANTS. 
Act (IX of 1$?2) 9 3. 23Abkari license 



[92 1. 0. 1926] 

Prohibition to transfer and to sub-let Partnership by 
licensee, whether forbidden Foreign law Law of 
Mysore State Question of fact, 

What a foreign law is on a particular point, is a 
question of fact and has to be proved by the party 
setting it up. [p. 113, col. 2.] 

Where by the terms of an Abkari license, the sale 
transfer or sub-lease of the right is forbidden, the 
mere fact that the licensee enters into partnership, 
ivith others in respect of profits or losses of the busi- 
ness for the carrying on of which he had obtained the 
license does not necessarily involve a transfer of the 
license right and is not illegal or forbidden by law. 
[p. 116, col. 2; p 117, col. 1] 

Natla Bapiraju, v. Puran Achutha Rajajee, 5 
Ind Gas. 450, 20 M. L J. 337; (1910) M W. N 549; 7 
M. L, T 176, Karsan Sadashiv Patil v. Gatlu Shiva ji 
Pat 1 1, 11) Ind Gas. 442; 37 B. 320; 15 Bom. L. R. 227 and 
Ghampsey Dossa v. Gordhandas Kessow}i, 40 Ind. Gas. 
805, 19 Bom. L. K. 381, followed. 

Marndamuthu Pillai v. Rangasami Mooppan, 24 M. 
401, referred to. 

Ganapathi Brahmayya v. Kurella Ramiah, 54 Ind. 
Cas 45, 43 M. 141; 10 L. W. 476, 38 M. L.. J. 123, 
doubted. 

Under the Law of Mysore such a partnership as the 
above is not unlawful, [p. 114, col. 2.] 

Mahomed Ghouse Sab v. Thimma Setti, 1 Mysore L. 
J, 90, followed. 

When the terms of a contract are reduced to writing 
and the question is whether the contract is illegal by 
reason of its seeking to do what is forbidden by law 
and the contention is that the agreement operates as a 
transfer, such a transfer should not merely be pre- 
sumed but must : -. ~. ument if not in 
terms at least as . > [p. 116, col 1 ] 

Mr. jK". Krishnaswami lyengar ; for the 
Plaintiff. 

Messrs. A T . Rajagopalan and T. S. Raja- 
gopala Iyer, for the Defendants. 

JUDGMENT. The only point that 
arises for determination in this suit is quite 
simple and though not frequently arising 
is of considerable importance. The plaint- 
iff's suit is for the taking of the accounts 
of a partnership between himself and the 
three defendants. That a partnership agree- 
ment was made between these parties it is 
not disputed. The terms of the partner- 
ship have been reduced to writing and are 
to be found in the admitted copy filed as 
Ex. A. Defendants Nos. 2 and 3 have not 
contested the claim of the plaintiff and are 
apparently themselves anxious that the ac- 
counts of the partnership should be taken 
and the profits or losses ascertained and dis- 
tributed. 

The cpntest in the case which raises the 
only point for determination has been put 
up only by the first defendant and has 
reference merely to the validity of the con- 
tract sought to be enforced. The point as put 
by the learned Counsel for the first defend- 
ant is this. The partnership contract was 
made in the Mysore State within the terri- 



I. 0. 1926J 



KHODAt GANCADARA SAH V, S^AMINADHA MVDALI. 



113 



lories of His Highness the Maharaja and 
had reference to a business in arrack carried 
on by the plaintiff under a license obtained 
by him from the Mysore Government. 
Under the terms of the license granted to 
the plaintiff, he was not entitled without 
the previous permission of the Deputy 
Commissioner to do what he purported to 
do, namely, take into his business as part- 
ners the defendants Nos. 1, 2 and 3. No 
such permission was obtained by the plaint- 
iff, and, therefore, his act of entering into 
the partnership agreement was an act 
forbidden by the law and, therefore, void 
and, therefore, unenforceable. If this conten- 
tion should be upheld, it follows that the 
plaintiff s?suit must fail. And, on the other 
hand, if this contention should fail, the 
plaintiff would be entitled to a preliminary 
decree for the taking of the accounts of 
the partnership and the matter will have to 
be referred to the Official Referee for the 
taking of the usual accounts 

To begin with, I regret to state that 
neither the learned Counsel for the first de- 
fendant nor the learned Vakil for the plaint- 
iff seemed to have paid any consideration 
to an important aspect in this case, 
namely, that whereas the contract was made 
and was apparently intended to be perform- 
ed entirely within the Mysore State, this 
suit has been instituted in this Court. And 
in fact both sides argued the case before 
me as if there were no such complication 
and it was a simple case of the contract 
being or not being illegal ,,- :!'.: to the 
Law of the Mysore State. Tne Law of the 
State, however, it was recognised, had as 
being the Law of a Foreign State to be proved 
as a matter of fact by the expert witness as 
Advocate at Banglore who has been called 
for the purpose. The question, therefore, 
has not been properly argued before me on 
the footing of a contract sought to be 
enforced in a British Court but made and 
intended to be performed in a Foreign 
State and that a protected State under the 
protection of the British Government and 
subject to its suzerainty. The first ques- 
tion that has to be determined in such cases 
is : What is the law applicable to the par- 
ticular contract in question ? ; that is to 
say, by the application of which law should 
it be determined whether the contract in 
question is void for illegality as urged. 
Fortunately there is no serious difficulty in 
this case with regard to the law applicable, 
"because whether we take the law applic- 

8 



able generally in the first instance as the 
law by which the parties intended that the 
contract should be governed or as the law 
of the place where the contract was made or 
as the law of the place where the contract 
was intended to be performed, it is in every 
case the same law, the Law of the Mysore 
State. No evidence has been adduced be- 
fore me and 110 argument addressed to show 
that the intention of the parties was that 
the contract should be governed by any 
law other than the Law of the Mysore vState. 
We may also presume that as the contract 
was apparently intended to be performed 
in its entirety within the Mysore State, the 
parties intended that the contract should be 
governed by the law of that very State. 
This being settled, the questions that next 
arise for consideration aie (a) whether ac- 
cording to the Law of the Mysore State this 
contract of partnership was forbidden , (6) 
whether if so forbidden, the provision of 
law forbidding was only a iiscal or taxing 
enactment or a, provision of law based on 
the public policy of only a particular State 
or whether the prohibition is founded on 
natural justice or some moral principle 
which, if it is not, ought to be recognised 
in international jurisprudence. 

As regards the first question whether 
under the law of the Mysore State the suit 
contract of partnership was illegal and void, 
it must be observed, to begin with, that the 
question "What a foreign law is on a par- 
ticular point" is a question of fact and has 
to be proved by the parties setting it up. No 
evidence has been adduced before me as to 
what the law of contracts is with regard to 
the illegality and unonforceability of con- 
tracts which are entered into in violation of 
rules of law or against public policy. I 
have reason to believe that the law of con- 
tracts in that State is the same as the Indian 
Contract Act. But this was, however, bound 
to be established and not to be left merely 
to inference. The first defendant on whom 
the burden of proof lay to establish satis- 
factorily all matters necessary for enabling 
the Court to come to the conclusion regard- 
ing the illegality of the contract did not give 
any evidence with regard to it. 1 may, 
however, observe in passing that from Ex. 
Ill it does appear as if the Indian Contract 
Act has been bodily adopted by the Mysore 
State. But while it is true that most of the 
Indian Statutory Law has been adopted in 
the Mysore State, it also appears that in some 
cases changes have been made in the enact* 



kHODAY GANOADARA SAH V. SWAMlNADHA 



[92 I. 0. 1926] 



ments so adopted, and I am, therefore, not 
in a position, in the absence of satisfactory 
evidence, on the point to say what the Law 
of the Mysore State is with regard to the 
illegality of contracts. 

In these circumstances, all that lean do 
is to proceed on the assumption that as 
indicated by Ex. Ill, the Contract Act in 
force in the Mysore State is the same as the 
Indian Contract Act. Section 23 of that 
Act provides amongst other things that the 
consideration or object of an agreement is 
lawful unless it is forbidden by law or is of 
such a nature that, if permitted it would 
defeat the provisions of any law or the 
Court regards it as immoral or opposed to 
public policy. It further provides that every 
agreement of which the object or considera- 
tion is unlawful is void. 

The question then is whether the part- 
nership agreement is one of which the con- 
sideiation or object is unlawful within 
the meaning of s. 23 of the Contract Act. 
This would depend obviously on the terms 
and conditions of the licenses granted to 
and obtained by the plaintiff. But neither 
he nor the first defendant has produced the 
original license or even a copy. The Court 
has virtually been asked by both parties to 
assume that the terms and conditions of the 
licenses were in the common form as appear- 
ing in Kx. I, (6). Clause 16 of the general 
conditions of retail vend licenses is as 
follows : 

"No privilege of supply or vend shall be 
sold transferred or sub-rented without the 
Deputy Commissioner's previous permission 
which will only be given if the applicant 
is prepared to forfeit hia deposit already 
made except in cases where the Deputy 
Commissioner sees reason not to enforce the 
penalty, Nor, if the Deputy Commissioner so 
orders shall any agent be appointed for the 
management of any such privilege without 
his previous approval". 

, On behalf of the first defendant, my 
attention has been drawn to a case decided 
by the Mysore High Court and reported as 
Mahomed Ghouse Sab v. Thimmi Setti (1), 
proved by the expert witness called for 
the first defendant and marked as Ex. JII 
in the case. That case, however, refers only 
to a case of sub-letting actually covered by 
the terms of cl. 16 of the conditions. 
Generally speaking, it cannot possibly be 
contended that the mere fact that a licensee 

(I) I Mysore L, J, W, 



enters into a partnership with others or 
another in respect of profits or losses of 
the business for the carrying on of which he 
has obtained a license necessarily involves 
either a sale, transfer or sub-letting 
of the license. There may, no doubt, be 
partnership agreements which involve or 
include a transfer of the interest in the 
license itself. There is, therefore, no war- 
rant for supposing that every partneiship 
agreement must necessarily violate such a 
condition as set out in that clause. 

Mr. N. Narasimha lyengar, Advocate at 
Bangalore, has alsoPreferred in the course of 
cross-examination to a case reported in the 
9th Vol.of the Mysore Chief Courts Reports 
page 316, where it washeld in that State that 
a partnership entered into by a licensee in 
such circumstances was not illegal and he 
also told me that that decision is regarded 
as good law up-to-date and has not been 
overruled. The partnership agi cement iu 
this case Ex. A does not contain any words 
of sale, transfer c , -/': No doubt 
in terms, as also : - : ;,; - the result of 
a partnership agreement, the partners are 
constituted agents or managers of the con- 
cern. But the last sentence in cl. 16 of the 
general conditions indicates that if it was 
intended to prevent any agent being ap- 
pointed for the management of any such 
privilege without the previous permission 
of the Deputy Commissioner, a special 
order of the Deputy Commissioner should 
be made ; that is to say, in other words, 
generally speaking the appointment of a 
manager for the management of the privi- 
lege may be made without any previous 
permission and if the Government should 
deem fit to prevent any such thing being 
done, a special condition or order is re- 
quired to be made by the Deputy Commis- 
sioner. No such special order or con- 
dition has been proved in this case. The 
effect of a partnership agreement is only 
to constitute the partners the agents of each 
other, and it, therefore, follows that the 
terms of cl. 16 far from forbidding the 
appointment of such agents for manage- 
ment impliedly allows such appointments 
except in cases where it is specially forbid- 
den. Having regard, therefore, to the terms 
of cl. 16 and also the judgment of the 
Chief Court already referred to, I cannot 
but hold that according to the Law of the 
Mysore State, as recognised and acted upon 
by the subjects of that State, a partnership 
agreement with reference to a license c^ 



I. 0. 1926] 



fcHObAY GANGADARA SAH V. 8WAM1NADHA MFi)ALf. 



115 



the kind in question is not an agreement 
the consideration or object of which is 
unlawful. In this view which I have arriv- 
ed at with regard to the question in issue, 
I am, therefore, bound to hold that the suit 
contract was not unlawful or void. This 
would be sufficient for the purpose of dis- 
posing of the issue. But the learned Coun- 
sel for the first defendant has referred me 
to various judgments of the High Courts 
in India for the purpose of showing that 
under clauses similarly worded in Abkari 
licenses issued by the British Government, 
the Courts have held that a partnership 
agreement is an agreement forbidden by 
law and, therefore, unlawful. It seems, 
however, unnecessary to refer to the decisions 
of the Birtish Indian Courts in the matter. 
If there is a particular statutory enactment 
or a provision or rule having the force of 
law in a particular State and the highest 
Court in that State has decided that having 
regard to the terms of such enactment or 
rule, a partnership agreement in those 
circumstances is not illegal, I cannot hold 
that such an agreement is illegal because 
the Birtish Indian Courts have held them 
to be illegal in very similar circumstances. 

In my view, therefore, any detailed ex- 
amination of the decisions of the British 
High Court in India is unnecessary. 1 may, 
however, briefly refer to them because 
after a careful examination of those cases, 
I have come to the conclusion that even on 
the principles decided in those cases the 
partnership agreement in this case could 
not be held to have been unlawful. 

The case of Mamdamuthu Pillai v. Ranga- 
sami Moopan (2), was one of the cases 
referred to and relied upon for the first 
defendant. The decision in that case pro- 
ceeded upon a clause which is entirely 
different in its terms and scope from the 
clause in the present case, There are, no 
doubt, observations in the judgment of the 
learned Judges in that case regarding the 
principle underlying the provisions of the 
Abkari Act and also with regard to the 
partnership agreements entered into by or 
with the licensee being illegal. Those ob- 
servations were not necessary for the 
decision of the case and were merely obiter 
dicta. With all respect, therefore, to the 
learned Judges that decided that case, 
I cannot regard it as a binding decision 
more especially when what I have to con- 

(2) 24 M, 401, 



sider is not a British Indian license but a 
license issued by the Mysore State, which 
in some important respects materially differs 
from the terms that the learned Judges 
were considering. Further 1 may also in 
this connection observe that the learned 
Judges who came to the conclusion in that 
case that the rules under the Abkari Act 
were not merely for the protection of the 
revenue but also to regulate liquor traffic 
in the interests of the public were not con- 
fronted in the license with any such condi- 
tion as that the previous permission by the 
Deputy Commissioner for the sale, transfer 
or sub-renting of the privilege of supply or 
vend will only be given if the applicant 
is prepared to forfeit his deposit already 
made except in cases where the Deputy 
Commissioner sees reason not to enforce 
the penalty. Further in the case of the 
license the learned Judges were consider- 
ing, there do not appear to have been any 
such clause as the following : 

" Nor, if the Deputy Commissioner so 
orders shall any agent be appointed for the 
management of any such privilege without 
his previous approval 11 . 

The case olNalan Padmanabhan v. Badri 
Nadk Sarda (3) was under the Opium Act 
and proceeded on the narrow ground that 
the terms of the Act prescribed that no one 
shall sell opium except as permitted by the 
Act and were different from the correspond- 
ing provisions in the Abkari Act. Further the 
learned Judges also relied for their decision 
on the terms of the partnership agreement 
with regard to which they observed as 
follows : 

" It is contended for the appellant that 
the admission of the plaintiff to partnership 
with the defendants is not a transfer. We 
are of opinion that it ia. It is no doubt 
true that every contract of partnership is 
not necessarily a transfer but it is equally 
clear that such a contract may in many 
cases involve a transfer. Thus if two per- 
sons agree to start a business in partnership 
and to contribute capital therefor, there ia 
no transfer involved in the transaction. 
But if one person carrying on a trade and 
possessing stock and capital, admits another 
into partnership with himself, making the 
stock and capital, the joint property of both, 
it is impossible to contend that there is 
not a transfer in such a case 1 '. 

(3) 10 Ind Cas. 126; 35 M. 582; 21 M. L, J, 425; 9 M 
fc, T, 459; (1911) 1 M. W. N. 371, * , 



KHODAY GANOADARA SAH I?. SWAMINADHA MtJDALt. 



The Tamil document filed in this case is 
far from clear and while there is no doubt 
that all the profits and losses were agreed 
to be divided amongst the four partners in 
equal shares, I have been unable to iind in 
the document any words of transfer even 
though 1 have no doubt whatever that a 
transi'er must have been intended by the 
parties. But if as stated in the case of 
Marudamutliu Pdlaiv. Ranuasami Mooppan 
(I) the object of the rules framed for the 
purpose of preventing sale, tiansfer or 
subrenting is that the (Government should 
not lose its contiol over the licensee, it is 
impossible to ^ee, how, by the mere i'act 
that a licensee admits certain persons into 
partnership with him, the control that the 
Government has over the licensee is in any 
manner or degree lent. Moreover, when the 
terms of a contract are reduced to writing 
and the question is whether the contract 
is illegal by icabon of its seeking to do 
what is foi bidden by law and the contention 
is that the agreement operates as a transfer, 
such a transier should not merely bo pre- 
sumed but must appear in the document 
if not in terms at least as necessarily in- 
volved. There is no transfer so far as lean 
see either of the business or of the stock 
in trade or of any interest in the license; 
and 1 think A\hat the parties really intended 
was only that the profits and losses of the 
concern should be shared by them. 

The next case cited to me by the learned 
Counsel for the first defendant was Gana- 
pathi Brakmayya v. Kurella Ramiah (4). 
With all respect it seems to me that the 
correctness of that decision is open to 
doubt. The clause in the license which the 
learned Judges were construing was as 
follows; 

"The privilege of supplying and vend- 
ing shall net, without the permission of the 
Collector previously obtained, be sold, ex- 
changed or sub-leased, nor, it the Collector 
has ordered, can an agent be appointed, 
without his permission previously obtain- 
ed, for exercise of any such privilege." 

Construing this clause, this is what the 
learned Judge says: 

**The clause prohibits sale by a stranger 
and the employment of an agent. In our 
opinion the taking of a partner has the 
effect, ordinarily of selling a portion of the 
business to him. It has certainly the effect 

(4) M Ind. Cas, 45; 43 M. HI, 10 L. W, 476; 38 M, L, 



[92 L 0. 1926] 

of making him an agent for the sale of 
liquor." 

I cannot possibly understand how the 
learned Judges came to the conclusion on 
a construction of the clause that apart from 
any special order of the Collector which 
is not referred to in the decision, the ap- 
pointment of an agent was regarded as for- 
bidden. The clause states that no agent 
can be appointed only if the Collector has 
so ordered. This would ordinarily mean 
and imply that in cases where the Col- 
lector has not so ordered, the appointment 
of an agent would not be illegal. There- 
fore, unless it be that in that case it was 
admitted by both parties that the Collector 
had made an order forbidding the appoint- 
ment of an agent, it is impossible to under- 
stand the judgment or regard it as pro- 
perly decided. Further the observation of 
the learned Judges that in their opinion 
the taking of the partner with him has the 
effect ordinarily of selling a portion of the 
business to hirn, is too general and sweep- 
ing to be accuiate; and in that respect I 
have no hesitation in stating that the 
law with regard to it is much more accu- 
rately stated by Benson and Sundara Iyer, 
JJ., who decided the case of Nalan Pad- 
mainibha v. Badri Nadh Sarda (3). 

On the other hand the case of Natla 
Bapiraju, v. Puran Achutha Rajajee (5) 
decided by Miller and Krishnaswami Iyer, 
J J., is an authority for a decision that a 
partnership agreement with a licensee is not 
in all cases and under all circumstances 
illegal. 

These are the Madras cases that were 
cited to me. In the case for Karsan Sadaxhiv 
Patil v. Gatlu Shivaji Patil (6) Sir Basil Scott, 
C. J., and Chandavarkar, J., held that the 
* Indian Legislature was by no means blind 
to the possibility of partnerships being 
enteied into by licensees in which other 
persons may become interested in the sale 
of liquor and that the object of granting 
the license is to have control over the 
person v;ho is authorised to sell the liquor 
and in order that sale of the liquor may 
not pass out of his control to unauthor- 
ised persons. Proceeding on this reason- 
ing, those learned Judges held that a 
partnership was not prohibited by the terms 
of a license which merely forbade selling, 
transferring or sub-letting. 

(5) 5 Ind. Cas 456, 20 M. L. J, 337; (1910) M W. N, 
549; 7 M. L. T. 176. 
ft) 19 Ind, Oft* 442; 37 13, 320; IS Bom, L. K. 227, 



[92 I. 0. 1926] 



K30DAY 



. StfAMTOAMA 1ITO1LT. 



nr 



In the case of Champsay Dossa v. GOT- 
dhandas Kessowji (7) Mr. Justice Maeleod 
sitting singly on the Original Side held 
with reference to the terms of the license 
granted for manufacture of salt that the 
admission of partners to share in the 
profits cannot be considered as a sub- 
letting or alienation of a part of the privilege 
unless there has been a document directly 
transferring to the partners a part of the 
right to manufacture or vend. He accord- 
ingly held that a partnership agreement 
was not illegal which was entered into by 
a licensee who under the terms of the license 
was forbidden to sub-let, mortgage or other- 
wise alienate the whole or any part of the 
privilege granted by the licensee of manu- 
facturing salt on the land. 

In the case of Gauri S hanker v. Mumtaz 
All Khan (8) Oldfield, J , who was one of 
the Full Bench of that Court held apparent- 
ly with the concurrence of the Chief Justice 
and Mr. Justice Spankie that a partner- 
ship contract was not contrary to the con- 
ditions of a lease of a ferry under which a 
transfer or sub-lease by the lessee was for- 
bidden. 

In none of the cases decided in the 
Calcutta High Court and to which reference 
was made, was this question regarding 
partnership raised or considered. 

In these circumstances having regard to 
the state of the case-law not only in Madras 
but in British India generally, the weight 
of considered judicial opinion is against 
regardinga mere partnership agreementas 
being , ' ' provision of law which 
merely A . sale, transfer, or sub- 

letting. As Mr. Justice Macleod of the 
Bombay High Court points out as Mr. 
Justice Miller and Mr. Justice Krishna- 
swarm Iyer, J J., and Benson and Sundara 
Iyer, JJ , have held, a partnership agree- 
ment does not necessarily involve any 
transfer by the licensee to the persons he 
admits as partners. No doubt a partner- 
ship agreement might also effect a transfer 
forbidden by law in which case it would be 
bad not because it was a partnership agree- 
ment but because it was a deed of transfer. 
In the present case in the agreement filed 
before me, no words have been relied upon 
for the purpose of showing that they are 
words of transfer or operate to effect any 
transfer of property, the transfer of which 
is forbidden by law. As I read the docu- 

(1) t() Ind Gas 803, 19 Bom. L K 331, 
(8) k J A. 411, llnd. Dec. (N. s.) 828, 



ment the arrangement entered into by th 
partners was quite consistent with the 
licensee remaining as the legal owner but 
bound in equity to account for all the 
profits and losses to his other partners. 

In any rase, as I have already stated, 
what I have to consider is not whether 
apart altogether from the law of the Mysore 
State such a contract would or should be 
upheld by this Court but onlv whether 
according to the Law of the Mvaore State 
the contract was void in its inception. If 
according to that law, as deposed to by the 
expert witness entering into a partnership 
with regard to the rights of a licensee is 
perfectly le#al, this Court is bound to hold 
that, according to the law to which the 
contract is subject, the contract is not void 
or unenforceable, and 1 am glad to think 
that the rules of international law do not 
oblige the Courts of a foreign country to 
regard as against the law or as opposed to 
public policy and, therefore, void, any con- 
tract which the High Court of the very 
State in which the contract was intended 
to be performed and by the law of which it 
was intended to be governed, would not so 
regard it. 

Some difficulty, no doubt, might have 
arisen if according to the State of the Mysore 
Law the contract would be illegal and the 
ground of illegality should appear to be 
not any fundamental principle, or morality 
or ethics or public policy but some regula- 
tion, which, as in this case, has for its chief 
purpose the realisation of revenue, and 
such a State happened also to be as in this 
case, a Protected Indian State. It is pos- 
sible that even in those circumstances 
British Indian Courts might feol compelled 
to give effect to the Law of the Protected 
Indian States as it may be found to be. 
But in the present case no suc.h question 
arises. I have, therefore, come to the conclu- 
sion that the defence of illegality set 
up by the first defendant regarding* the 
plaintiff's claim to enforce the oonti actual 
obligation has not been made out There 
would, therefore, be a preliminary decree in 
the suit declaring the partnership between 
the plaintiff and defendants N<>^ I, 2 and 3 
each being entitled to equal slwio of profits 
and losses of the partnership and directing 
the usual accounts of the partnership to be 
taken from the first day of July, 1^19 as 
provided in the partnership ague ment. 
The first defendant who was chielly res- 
ponsible for protracting this litigation BO 



118 StrmBHAN V, ItENUKA. 

long, will pay the plaintiff the taxed costs 
of the suit up to date. The costs to be in- 
curred before the Official Referee will be 
dealt with at the time of passing the final 
decree in the suit, 
v, N. v, 



[92 1, 0. 1926} 



NAGPUR JUDICIAL COM- 
MISSIONER'S COURT, 

SECOND CIVIL APPEAL No. 41-B OF 1923. 

August 22, 1925. 

Fmenf: Mr. Kotval, A. J. C. 

SURYABHANT APPELLANT 

versus 
RENUKA RESPONDENT. 

Transfer of Property Act (IV of l$82) t s T^-- 
Limitation Act (IX of 190S), Sch I,' Art 13> Mort- 
gagee, prior and subsequent Decree obtained b\i prior 
mortgagee paid off by puisne mortgagee -Suit by 
puisne mortgagee to recover money paid by him - 
Limitation, commencement of 

Under s 74 of the Transfer of Property Act a puisne 
mortgagee on paying off a decree obtained by a prior 
mortgagee acquires all the rights and powers of the 
prior mortgagee as such as determined by the decree 
and the rights so acquired by the puisne mortgagee 
can be enforced by him by a separate suit. Article 
132 of Sch. I to the Limitation Act would apply to 
such a suit, the period of limitation being twelve years 
from the date on which the money became due to the 
puisne mortgagee, that is to say, from the date on 
which the puisne mortgagee paid off the prior mort- 
gagee's decree and became entitled under the pro- 
visions of s. 74 of the Transfer of Property Act to 
the rights created by the decree (p 119, cols. 1 & 2 j 

Second appeal against a decree of the 
District Judge, Amraoti, dated the 9th No- 
vember 1922, arising out of a decree by 
the Munsif, Amraoti, dated the 28th April 
1922. 

REFERENCE. 

Kotval, A. J. C. (March 12, 1923). 
The plaintiffs as second mortgagees paid 
off the amount found due to the first mort- 
gagee in a suit in which they were defend- 
ants. They now sue the mortgagor and 
other persons in possession of the mortgag- 
ed property for the recovery of the amount 
so paid. The lower Courts relying on 
Nathuram v. Sheolal (1) divsmissed the suit 
on the ground that as the first mortgage 
was payable on the 10th March 1907, the 
suit which was brought on the 21st July 
1921 was time-barred. Nathuram v. Sheolal 
(1) has been dissented from in Bora Shib Lai 



2 Jnd. Cas, 796; 19 N. L, R, 2J7, 



v. Munni Lai (2) and in my opinion requires 
to be considered by a Bench. I, therefore, 
refer to a Bench to be appointed by the 
Judicial Commissioner the point whether 
the question of limitation has been rightly 
decided in Nathuram v. Sheolal (1). 

Mr. P. C. Dw, for the Appellant. 

Messrs. Atmaram Bhagwant&nd Shridhar 
Atmaram, for the Respondent. 

OPINION OF THE BENCH. 

Findlay, O. J. C. and Kotval, A. 
J. C. (August 11, 192$.) Vithal Sheoram 
and others brought a suit on a mortgage, 
dated the 10th March 1905, executed by the 
father of defendant No. 1, Ganpat against 
Ganpat and the present plaintiffs, who were 
subsequent mortgagees and obtained a 
preliminary decree for foreclosure. The 
plaintiffs paid the decretal amount into 
Court and now sue to recover it from Gan- 
pat. In default of payment they claim 
foreclosure or in the alternative sale. The 
latter relief they claim apparently on the 
ground that they acquired a charge by the 
pavment of the decretal amount. 

The lower Appellate Court relying on 
Nathuram v. Sheolal (1) has held that the 
claim is time-barred and has dismissed the 
suit. The point referred to this Bench is 
whether the decision as to limitation in that 
case is correct. 

Nathuram v. Sheolal (1) was referred to 
and dissented from by a Bench in Bora 
Shih Lai v. Munni Lai (2). The learned 
Judges there observed : 

"It is impossible to hold that the right 
of the plaintiff accrued before he made any 
payment at all. In that ruling the learned 
Judge seems to have assumed that the 
plaintiff was the assignee of the decree. 
Under s. 74 of the Transfer of Property 
Act he no doubt acquired the rights and 
powers of the mortgagee whom he redeem- 
ed, but the fact of his redeeming the prior 
mortgage does not make him an assignee 
of the mortgage. His lights may be akin 
to those of an assignee, but he is not the 
actual assignee. If he had been the assignee 
of the mortgage and no suit had been 
brought on the basis of the mortgage by the 
prior mortgagee, he would have been bound 
to bring his suit to enforce that prior 
mortgage within the period of limitation 
which wag available to the prior mortgagee. 
But a suit like the present is not a suit to 
enforce the prior mortgage nor is it an. 

(2) 63 Tnd. Caa 604; 44 A. 67; 3 U. . L, R. (A.) 193; 
19 A, L, J *10, UW A. L R, (^ 135- 



[92 I. 0. 1926] 



application for thd execution of the decree 
obtained on the basis of the prior mort- 
gage/* 

In Sibanand Misra v. Jagmohan Lai 
(3), Das, J., dissents from the above view. 
Under s. 74, Transfer of Property Act, 
the puisne mortgagee on paying off the 
prior mortgagee acquires all the rights and 
powers of the prior mortgagee as such. 
These rights and powers are the rights and 
powers created by the decree : Narayan v. 
Nathmal (4). In the present case they are 
the rights to the payment of the amount 
decreed and foreclosure in default of pay- 
ment. It is these rights whiVh maybe said to 
be implied ly assigned by law to the puisne 
mortgagee and not to the rights under the 
mortgage which became merged in the 
decree. It would be hard and unjust in 
some cases to hold that it is the rights 
under the mortgage which are assigned to 
the puisne mortgagee. To protect his in- 
terest under his own mortgage the puisne 
mortgagee must satisfy the mortgage decree 
where the mortgagor fails to do so. But 
before the time comes for him to pay it 
up, a claim on the basis of the mortgage 
may have become time-barred. The result 
would be, where the condition in the prior 
mortgage was one of foreclosure, that the 
puisne mortgagee would have to pay up the 
prior mortgage debt without being able to 
recover it from the mortgagor or be fore- 
closed and lose the amount advanced by 
him to the mortgagor. It is said that the 
hardship may be avoided by enforcing the 
assignment under s 74 in the same suit and 
asking for a decree in Form 6. Form 
No. 6, however, refers to a case where the 
claims on both the prior and puisne mort- 
gages are decided and decreed against the 
mortgagor in the same suit. There might 
be a decree in Form 7 in a case like the 
present but even then all that the Court 
may do is to grant a declaration keeping 
alive the mortgage in favour of one of the 
parties. It does not allow of any further 
action in the same suit by the puisne mort- 
gage against the mortgagor. 

The rights acquired by the puisne mort- 
gagee can be enforced by a separate suit : 
Gopi Narain Khanna v. Bansidhar (5). 

(3) 68 Ind. Gas. 707, 1 Pat. 780; 3 P. L. T, 533, (1922, 
Pat 331, (1922) A. I R. (Pat) 490. 

(4) 65 Ind. Cas 27G; 17 N. L. R. 200; (1922) A I K. 
(N ) 1.15. 

(5) 27 A 325; 2 C. L J. 173; 9 0. W. N. 577; 7 Bom. 
L H. 427, 15 M. L J 191; 2 A. L. J. 336; 32 L A. 123; 
88ar. P.C.J 779 (P. C.). 



DORARWAMt NTADAH V. JOSEPH I, MOTHBR. 119 

Article 132, First Schedule, Limitation Act, 
would apply to such a suit the period of 
limitation being 12 years from the date 
the money became due The money decreed 
can bo said to have become due to the 
plaintiff and the right to foreclose in 
default of its payment to have arisen in 
his favour only when he made the payment 
and became entitled under the provisions 
of s. 71 to the rights created by the decree. 
This view finds support in Parvati Ammal 
v. Venkatarama Aiyar (6). 

In Mahomed Ibrahim Hosseinv. Ambika 
Pershad Singh *7), the claim was made on 
the basis of the prior mortgage which was 
claimed and held to have been kept alive 
for the subsequent mortgagees' benefit. The 
mortgage had not merged in a decree. The 
present claim is based upon the new rights 
created by the decree. 

We are, therefore, of opinion, that the 
question of limitation has not been rightly 
decided in Nathuram v.Sheolal (1) 

JUDGMENT. The plaintiffs' claim 
was resisted in this Court on the grounds 
that a separate vsuit was not maintainable 
and that in any case the suit was barred by 
limitation. Both these points fail in view 
of the opinion of the Bench. 

The appeal, therefore, succeeds. The 
plaintiff^ 1 claim will be decreed with costs 
throughout, 
z IK Appeal allowed. 

(6) 81 Ind Cas 771 47 M L J 316; (1921) M W. 
N 517; (1924) A 1 R (M ) 80. 

(7) U Ind Cas 400, 3D G 527, 11 M L. T 2<>5, (1012) 
M W N 3G7, 1) A I; J 332, 14 Bom L. K 280; 16 C. 
W N, .105, 15 C. L J 411, 22 M. L J. 468, 30 I A. 
68 (P C ) 



MADRAS HIGH COURT. 

CIVIL REVISION PETITIONS Nos. 940 AND 941 

OP 1923. 

September 12, 1925. 

Present:-- Mr. Justice Odgers, 

A. DORAS WA MI NADAR PETITIONER 

versus 

JOSEPH L. MOTHER AND ANOTHER 
RESPONDENTS. 

Madras District Municipalities Act \V of 1030) 
Rules for conduct of Elections, r 2 (J) Nomination 
paper Signature by aqent of candidate, validity of 
Acceptance of nomination paper 6y Returning Officer 
Misconstruction of rules Revision Civil Procedure 
Code (Act V of 1908], s. 115. 

Under r. 2 (2) of the Rules for the conduct of 
Elections under the Madras District Municipalities 



120 



DORASWAMI 



Act, it is the candidate himself who must sign the 
nomination paper A nomination paper signed by an 
agent of the candidate with his authority is invalid. 

The validity of a nomination paper, even after it 
had been accepted by the Rot r, mi ML- Officer, may be 
questioned after the election Th C-\\i\. has, there- 
fore, jurisdiction to enquire into the matter and if 
necessary deelnre the election void 

A mere error in the construction of rules by a 
Court sitting to dispose of an election petition is not 
a ground for interference in revision under s. 115, 0. 
P. C , by the High Court 

Petition, under s 115 of Act V of 1908 
and s. 107 of the Government of India Act, 
praying the High Court to revise the orders 
of the Court of the Subordinate Judge, 
Tuticorin, in S. Nos. 7 and 8 of 1923 res- 
pectively. 

Messrs. T. R. Vcnkatarama Saslriar and 
K, S. Sankara Iyo\ for the Petitioner. 

Mr K. It. R<tm,a Iyer, for the Respondents. 

JUDGMENT. These are revision 
petitions to revise the decision of the 
learned Subordinate Judge of Tuticorin in 
petitions presented to him under the Madras 
Municipalities Act, 1920 It appears that 
in an election for the Tuticorin Munici- 
pality, 8th ward, which was to be held in 
January 1923, a nomination paper was put 
in for Mr. A Doraiswami Nadar which was 
admittedly not signed by the candidate but 
the name of the candidate was written in 
the nomination paper by his son owing to 
his (candidate's absence at the time) The 
learned Subordinate Judge has found that 
the son was authorised to sign his father's 
signature for this purpose but it has to be 
observed that the signature purports to be 
that of the candidate and there is no indica- 
tion that it is written by somebody else. 
The learned Subordinate Judge has held 
that the son was in fact authorised so to 
sign but under the Election Rules to which 
reference will be made in a moment, such a 
signature by the agent is not recognised 
and, therefore, the nomination paper was 
invalid. 

Por the petitioner two points are urged ; 
(1) that Dot only under the Common Law 
but under many English Statutes signature 
by the agent even orally authorised is per- 
fectly good and sufficient (2; that as the 
nomination paper has been accepted by the 
Chairman no question as to its validity is 
now open The learned Subordinate Judge 
hascaiofnlly gone into the provisions con- 
tainer! in the rules and he has come to the 
conclusion that their object and scope 



>. JOSEPH L, MOTHER, [W I. 0, 1926] 

require that the signature should be put in 
by the very party concerned and not by his 
proxy. Kule 2 (2) runs thus : 

"Every nomination paper shall be sub- 
scribed by two such electors as proposer 
and seconder and the candidate shall sub- 
scribe a declaration on it expressing his 
willingness to stand for election. 1 ' 

I am of opinion that it is no guide to 
refer to various English cases such as In re 
Whitley Partners (1), which is a case under 
the Companies Act or the dictum in 1 
Halsbury's Laws of England page 157 that 
an agent may be authorised to sign for 
another orally, which of course cannot be 
disputed, nor has the case cited in Pritchard 
v. Bangor Corporation (2) anything to do 
with this matter. I am not disposed to 
disagree with the construction placed on 
r. 2 (2) by the learned Subordinate Judge. 

As to the second point, that once the 
Chairman has passed the nomination paper 
it is beyond question, that I think is dis- 
proved by the rules for the decision of dis- 
putes. Government Order 1134, dated 30th 
November 1920. Under r. 11 (c) "if in the 
opinion of the Judge the result of the 
election has been materially affected by any 
irregularity in respect of anominatian paper 

the election 

of the returned candidate shall be void." 
That must refer to a nomination paper 
after it has been accepted by the Chairman 
and what turns out to be invalid or irreglar. 
The Judge is there given jurisdiction to 
enquire into the matter and if necessary 
declare the election void. That is a strong 
argument against the sanctity of a nomina- 
tion paper which has been accepted by the 
Chairman. 

Another point has been argued with 
reference to these revision petitions and 
that is that they do not lie and in the latest 
Full Bench decision in C. R. P. No. 541 of 
1923 the Chief Justice, Phillips and 
Kumaraswami Sastri, JJ., in a very similar 
case to this held in a decision as to the 
construction of rules which are similar that 
there was no question of jurisdiction or of 
acting illegally, "that the learned Judge 
had a point of construction before him and 
he decided it to the best of his ability' 1 and 
"that the question of doubtful construction 
of a iiile is not one that would enable the 

(1) (1886) 32 Ch D 337; 55 L ,T Ch. 540; 54 L. T 
912, 34 W. R. 505. 

(2) (1888)1: A C. 241; 57 L. J. Cj. 13. 313: 08 L T. 
502; 37 YT K. 103; 52 J. P. 564, 



[98 I. 0. 1928] 

Court to interfere in revision." In my 
opinion these rules are strictly within the 
purview of those remarks in the latest Full 
Bench case. Even if they are not and 
civil ^revision petitions do lie, I am of 
opinion for the reasons given above, that 
the learned Subordinate Judge is correct in 
the decision that he arrived at. There is 
no doubt that in this case if an invalid 
nomination paper was in fact received and 
admitted the result of the election would be 
materially affected. 

The civil revision petitions must be 
dismissed, C. R. P. No. 940 without costs 
and C. R. P. No. 91 i with costs. 

v. N. v. Petitions dismissed. 

Z, K. 



KESHEO V. JAOANNATH, 



151 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 
FULL BENCH* 

SECOND CIVIL APPEAL No. 396-B OP 1923. 

September 5 and 21, 1925. 

Present : Mr. Findlay, Officiating J. (J , 

Mr. Hallifax, A.J.G. and Kotval, A. J. C. 

KESHEO AND ANOTHER APPELLANTS 

versus 
JAGANNATH RESPONDENT. 

Hindu Law - Joint family Widow and s>tcp-t>on 
Widow managing estate Alienation by widow - 
tienefit of estate Alienation, whether binding on step- 
sun Female member, whether din be manager /*/e- 
cedents Official Reports 

PerCwicnn. A sate by a Hindu wulmv \vlio was 
managing the estate of liur minor ,son and step-s-m of 
a part of the unmoveable prnpoitv belnn^in^ Id the 
estate foi ncL'cssarv purposes is valid and binding on 
the step-son [p 122, col 2, p. 124, e<J. ?] 

[ Case-law reviewed J 

Per HalliJ-ax t A J C -Any adult membri of ;i 
joint Hindu family whether male 01 female is entitled 
to be a manager of sue.h family fp 12i, e<>! 1| 

Every Court subordinate to the Judiewl Commis- 
sioner's Court in Central Provinces and Her<ir is 
bound to follow a ruling published 111 Cential Pro- 
vinces Law Reports or Nag pur Law Repoits until 
it has been overruled by another ruling smiilntlv 
published Kven in the, Judicial Commissioner's 
Court according to an old standing mle of prac- 
tice u Judge sitting alone always follows an 
officially published ruling If he doubts the correct- 
ness of such ruling, the only course properly open to 
him is to refer the matter for the decision of a Bench 
[p. 122, col. l.J 

FACTS. Plaintiffs' father Rambharti 
died about 12 years ago. Rambkaiti by 
his senior wife Musammat Ani got plaintiff 
No. 1 and by his junior wife Musammat Jani 



got plaintiff No. 2. Within two years after 
Rambharti's death, Musammat Ani sold a 
site for Rs. 50 to the defendant by a re- 
gistered sale-deed (Ex. D-l) on 26th Feb- 
ruary 1913. This sale-deed h executed by 
Musammat Ani alone for herself and also 
as guardian of plaintiff No. 1 (her son). The 
defendant has built a house over this site. 
The plaintiffs claimed to recover the site 
along with the house and shop over it (with 
superstructure) from the defendant on the 
grounds that the sale was without legal 
necessity, that Musammat Ani was deceived 
by the defendant, that asshe was anidiotshe 
was persuaded to make the sale and that she 
was not the guardian of plaintiffs Nos. 1 
and 2. The defendant contested the claim 
alleging that plaintiffs' claim was barred by 
time as their suit was filed long after three 
years lapsed from "the date of the majority 
of plaintiff No. 1. On other points of legal 
necessity and the guardianship of the 
plaintiff he joined issue. The lower Court 
found that plaintiff No 1 was aged 24 
when the suit was filed, that plaintiff No. 1's 
suit is barred by time because Art. yl of 
the First Schedule of the Indian Limitation 
Act, 1DOS applies as the sale by his de facto 
and de jure guardian is voidable and not 
ah initio void, that plaintiff No, 2's suit is 
not barred because Art. 144 applies as the 
sale is ab initio void (if not for legal neces- 
sity), that Musammat Ani who managed the 
affairs of the plaintiffs 1 joint family after 
her husband's death was the "guardian" of 
plaintiffs' estate in law and that the sale 
was for legal necessity. Plaintiffs 1 claim, 
was, therefore, dismissed with costs. 

Mr. G. R Pradhan, for the Appellants. 

Sir Dr. //. if. GOUT and Mr. M. B. Marathe, 
for the Respondent. 

OPINIONS OF THE FULL 

BENCH. 

Hallifax, A. J. C. (September ~>, 1025}. 
Th^ head-note* in Husen v. Rajaram (1) 
is as follows: "An alienation of the property 
of a minor by a person who is that minor's 
gnaidian de 'facto but not de jure is not 
merelv voidable but absolutely void, and 
the minor need not sue to have it set aside 
before he can obtain possession of the pro- 
perty Articles 44 and 91 of the Second 
Schedule of the Limitation Act do not 
apply to such a case." That is a correct 
epitome of the view of the law set out in 

(1) 20 Ind. Caa. 813; 10 N L R. 133 

"^Head-note of 10 N, L, K. 133.- [Ed.] * 



122 



KBIHIO V, JAOiNNATH. 



my judgment in the case, in which the alie- 
nation in question was a sale of the pro- 
perty of a minor Hindu by the elder of his 
father's two widows, his mother being the 
younger. In the present case also the alie- 
nation was by the elder of two Hindu 
widows of property belonging jointly to 
her son and the son of the younger widow, 
both minors at the time, and the sale was 
for their benefit and necessary in their in- 
terests. 

In both these cases, as in all the others 
to be mentioned later, the person who made 
the alienation purported to act as the 
guardian of the minor. The learned Judge 
of the lower Court has dissented from two 
officially published rulings of this Court, 
the one already mentioned and Vithu v. 
Devidas (2) which discussed and followed it, 
and has preferred to follow the view ex- 
pressed in three judgments of Judges of 
this Court not officially published. The re- 
ferences to such judgments should always 
be by the number and year of the case, and 
not by the page of some unauthorised 
publication of which this Court may or 
may not have a copy. In this case it has 
not got a copy of the publication mentioned. 

The impropriety of refusing to follow a 
judgment of ; this Court published officially 
needs to be pointed out, because it is so 
common. Every Court subordinate to this 
Court is bound to follow a ruling published 
in the Central Provinces Law Reports or 
the Nagpur Law Reports until it has been 
overruled by another judgment similarly 
published. Even in this Court according 
to an old standing lule of practice, which 
the Judges of this Court declared they 
would follow in an order published on the 
21st of August 1913, a Judge sitting alone 
always follows an officially published 
ruling. If he sees reason to doubt the cor- 
rectness of such a ruling the only course 
properly open to him is that taken by 
my brother Kotval in this case, to refer the 
matter for the decision of a Bench. 

The three unpublished j-i \x :.,-. -of this 
Court followed in the lower Court are men- 
tioned in the order of reference to a Bench 
which is quoted below. The first of them 
frankly dissented from Huszu v. Rajaram 
(1) and the otlur two, with the judgment 
of the lower Court in the present case, dis- 
sented from Vithu v. Devidas (2) as well, 
though Kinkhede, A. J. C., in the judgment 
from which an extract is given below, seems 
to have thought that his view, with that of 



[92 I. 0. 1926] 

Stanyon, A. J. C., was accepted in Vithu v. 
Devidas (2). It happens, however, that the 
final decision of each of the four cases is 
correct, though the reasons given for it are 
unsound. 

In the present case the two brothers 
whose property was sold have appealed 
against the decision that the transfer of the 
half of the property belonging to the son 
of the widow who did not join in executing 
the transfer is valid. The reference to the 
Bench was made by Kotval, A. J. 0. in 
these terms: " The question here is whe- 
ther a sale by a Hindu widow who was 
managing the estate of her minor son and 
step son of a part of the immoveable pro- 
perty belonging to the estate for necessary 
purposes is valid and binding on the step- 
son The appellants contend that it is not 
and rely on JIusen v. Rajaram (1), where 
the facts were more or less similar. The 
respondent points out that three Judges of 
this Court have differed from that ruling, 
vide S. A. No. 316-B of 1914, S. A No. 49.5 
of 1921 and 8. A. No. 303-B of 1923. In 
these circumstances it appears desirable 
that the correctness of that ruling should be 
considered by a Bench/' 

The answer I would give is this. The 
statement of law in Huwn v. Rajaram (1), 
which is repeated in Vitku v. Devidas (2), 
is perfectly correct, but the final decision 
of those cases is wrong because of a fact 
existing in each of them which was not 
brought to the notice of the Court. The 
statement of law in the judgment of the 
lower Court in the present case and 
in the judgments of this Court in the 
three cases mentioned in the Order 
of Reference is wrong, but the decision of 
ea^h of the four cases is correct because 
of the same fact though there also it escap- 
ed the notice of the Court. That fact is 
that the transferor on behalf of the minor 
in each case, though purporting to act as 
the guardian of the minor, was the manager 
of the Hindu family of which the minor 
was a member and really acted in that 
capacitj 7 . 

In the case of 1914 decided by Stanyon, A. 
J. C , there were two fatherless minors 
whose mother had married again, and they 
were living with their brother-in-law, who 
was as in fact looking after their property as 
well as their persons and made the alienation 
in question. In the ca^e of 19 Jl decided 

(2) 51 lud, Oas. 943; 15 N. L, R, 55. 



f92 I. 0. 192RJ 



KESBEO V. JAGANNATH, 



153 



by Prideaux, A. J.O,, there was one minor, 
and the alienation was made by his step- 
mother, his own mother being dead. In the 
case of 1923 decided by Kinkhede, A. J. C., 
the alienation was by the paternal grand- 
mother of the two minor sons of one father 
and two mothers, of whom the father and 
one mother were dead. In all three cases 
the minors were Hindus. 

In each of these three cases the person 
who actually made the alienation purport- 
ed to act as guardian, and was treated in 
the judgment as the guardian, de facto 
but not de jure. The decisions rested on 
the view that there is a difference between 
Hindu Law and Muhammadan Law in 
respect of the right to dispose of the pro- 
perty of a minor held by a person who is 
in fact acting as the guardian of the minor 
but without any right to do so; that accord- 
ing to the Hindu Law, such a guardian even 
though self-constituted can alienate the pro- 
perty of the minor whom he has taken 
under his protection, provided only that the 
alienation is for the minor's benefit. 

This appers to be a wrong statement of a 
correct principle, but it was the position 
taken before the Bench in this rase on be- 
half of the appellants. The reasons urged 
to support it are fully set out in the judg- 
ment of Kinkhede, A J. C in the last 
of the cases already mentioned in these 
words: 

"Jn my opinion, an alienation by a Je farto 
guardian of a Hindu minor has not the 
same effect as an alienation by a dc 'facto 
guardian of a Muhammadan minor. It has 
been laid down in Hunooman Persaud 
Pan day v. Babooee Munraj Koonweree (3) 
that 'under the Hindu Law the right of 
a bona fide incurnbran^er, who has taken 
from a de facto manager a charge on 
lands created honestly, for the purposes 
of saving the estate, or for the benefit of 
the estate, is not (provided the Circum- 
stances would support the charge had 
it emanated from a de facto and de ptre, 
manager) affected by the want of union 
of the de facto, with the de jure title. 1 This 
view has been consistently accepted as a 
correct exposition of Hindu Law in a Dories 
of cases of the several High Courts, cf. Rai 
Amnt v.Bai Manik (4;, Mohanuud Mondul 



(3) 6 M. 1. A. 393 at pp 412, 413; 18 W. R. Sin, 
SeVestre 253n; 2 Suth. P. 0. J. 29; 1 Sar. P. 0. J. 552, 
19 K R. 147. 

(4) 12 B. H. 0. B. 79. 



v. Nafur Mondul (5), Thayamal v. Kuppnnna, 
Koniam (6), Jagov, odat (7 )^nd Somwarpuri 
v. Copalsingh (8) decided by Stanyon, A. J. C., 
on 28th April 191& and quoted with approval 
in Vitha v. Devidas (2), by Mittra, A. J. C. 
Under Muhammadan Law dejacto guardian 
has no i<v -ini-rd position and is no better 
than an otiicious intermecldler who as 
pointed out by their Lordships of the Privy 
Council in Mata Din v. Ahmad A li (9) 'may, 
by his de facto guardianship, assume im- 
portant responsibilities in relation to the 
minor's property, but he cannot thereby 
clothe himself with legal power to sell it. 1 In 
the aforesaid case of Mata Din (9) the point 
whether a sale by a de facto guardin if 
made of necessity or for payment of an 
ancestral debt affecting the minor's property 
arid if beneiicial to the minor was altoge- 
ther void or voidable, was not decided by 
their Lordships of the Privy Council, nor 
were the observations of their Lordships 
such as could apply to the case of the 
alienation by a de facto guardian under 
Hindu Law. There is a fundamental dis- 
tinction between the guardian under the 
two systems of jurisprudence. The actual 
structure of the Hindu society with its joint 
family system is a thing unkown to the 
Muhammadan society. Under the Muham- 
madan Law a de facto guardian has no re- 
cognised position while the Hindu Law gives 
to him a position identical to that acknow- 
ledged in a de jure guardian In this respect 
as pointed out by Dr. Gourin his Hindu 
Code, page 445, 2nd Edition *the Muham- 
madan Law offers no analogy but rather 
presents a contrast . The one enquires who 
made the alienation, the other why it was 
made .This distinction between the two 
systems appears to have been ignored 
in a case in which an alienation by a 
Hindu de facto guardian was treated as 
ipso facto void, Ilussen v. Rajaram (I). 1 
That this is so is clearly pointed out by 
8tan>on, A J C., in Somwarpuri v. Gopal 
Singh (8) referred to above, I, therefore, re- 
spectfully record my dissent from the view 
taken in Hussen v. Rajaram (I) and pre- 
fer to follow the view taken in Somwarpuri 
v. Gopal Singh (8)." 

(5) 26 G. 820,' 3 C, W. N. 770, 13 Ind. Dec. (N. s ) 
1125. 

(G) 26 Ind. Gas. 179, 38 M. 1123, 27 M. L. J. 285. 

(7) 4 N. L R. 20 

'8) 49 Ind Gas 216 

fil) 1 \ Ind. Gas. 976; 34 A. 213; 16 0. W. N. 338; 11 
M. J, T H3 % (1912) M W. N. 183, 9 A. L. J. 215, 15 G. 
L J 270, U Bom. L. B. 192; 15 0, G, 4y, 23 M. L. J, 
0; 39 I. A. 49 (P, 0.). 



124 



PAZEANIANDY TARAKAN V, MWRVKAFPA TARAKAN, 



The "structure of Hindu seciety, with 
its joint family system" certainly does differ 
from that of any other society in the world 
hut that does not give any person the 
right to take charge of the property of any 
minor he may come across, just because he 
happens to be a Hindu, whether they are 
nearly or distantly related or not related 
at all, and "thereby clothe himself with 
power to sell it.' 1 It is, however, correct 
to say that it is the existence of the 
joint family system among Hindus that 
makes all the alienations under considera- 
tion valid though they would be invalid if 
the minors had not been Hindus, because 
they were made not by their iru,'i!'ii,i:,-* but 
by the managers of their /.ruliv -. The 
fundamental mistake made in respect of 
Hunooman Persand pan Jay's ca.se (3) is 
in assuming that it defines the powers of 
a guardian of a Hindu minor. It deals 
throughout with the powers of a manager, 
and the word guardian occurs in their Lord- 
ships' judgment only four times, twice in 
quotations from the judgment of the 
Sadar Diwani Adalat, .once in a quotation 
from the plaint and once in their Lordships 1 
summing up of their conclusions. In the last 
place the word may have been used because 
it had been used all through the case in the 
Courts in India or, if I may suggest it 
without disrespect, by a slip. 

If there is any statement of the rule of 
Hindu Law as to who is entitled of right to 
be the manager of a joint Hindu family, I 
have been unable to find it, but 1 take it 
that any adult member of the family, male 
or female, is so entitled. If that is correct 
the person who actually executed the trans- 
fer in the present case, and indeed iin each 
of the five other cases mentioned except that 
of 19L4 decided by Stanyon, A. J. (J., was 
the manager of the family de ] u re as well 
as dt facto. If, as seems to have been assum- 
ed only for the purposes of the argument 
iu Hunoomanpersaud Panday's <m-e (3) a 
female cannot as of right be such a manager, 
even the mother of the only other member 
of the family who is a minor, then in this, 
as in all the other cases, the transfer was 
valid because it was made by the person 
who was the actual manager at. the time, 
whether that person had a iik r ht to be 
manager or not, and it was for the benefit 
of the estate and necessary for its preserva- 
tion. 

The answer I would give to the Reference 
i&, therefore, that the Mile in this case by the 



[91 1. 0, 19263 

Hindu widow who was managing the estate 
of her minor son and step-son of a part of 
the immoveable property belonging to the 
estate for necessary purposes is valid and 
binding on her step-son. 

Flndlay, Offg. J. C. (September 5, 
1925). I nave had the advantage of perusing 
and considering the opinion recorded by 
Hallifax, A. J. C. and I concour therein. 

Kotval, A. J. C. (September 5, 102 J). 
I concur. 

By the Court, As stated in the opin- 
ions separately recorded our answer to the 
question referred to us is that the alienation 
is valid and binding on the step-son of the 
widow who made it. 

JUDGMENT. 

Kotval, A. J. C. (September 21, 1925). 
Ganesh's case alone was pressed and the 
only point argued at the hearing was the 
one referred to the Full Bench. That point 
is decided against the appellants. Con- 
sequently the appeal fails and is dismissed 
with costs. 

N H. Appeal dismissed. 



MADRAS HIGH COURT. 

SECOND CIVIL APPEAL No. 1635 OF 1922. 

August 24, 1925. 

Present /Mr. Justice Phillips. 

PAZHAN1ANDY TARAKAN PLAINTIFF 

APPKLLAJST 



MURUKAPPA TARAKAN AND OTHBRS 
DEFENDANTS -RESPONDENTS. 

Trusts Act (II of /$&?), s 88 -Tritbt, acceptance of 
Repudiation by trustee 

A person who accepts a trust and acts upon it is 
estopped from jiftci wards disputing it find cannot 
brin& a suit in Ins peiHoiml capacity m derogation of 
the trust [p 123, col I 

Nor can h" in such a suit claim to recoup himself 
what ho has spent for the benefit of the trust [p. 125, 
col. 2] 

Muniswami Chetty v Marutharr.mal, 1 Ind Gas 170, 
20 M L. J. C87 at p 698; (liUO) M W. N 233, 8 M L. 
T. 124; 34 M. 211 and Srimvasa Moorthy v Venkata- 
varada lyengar, 11 Ind Gas 417, 34 M 257, 15 C. W. 
N. 741, 8' A h J 774, 13 Bom L K. 520, (1911) 2 M 
W. N 375, 14 G L. J G4, 21 AI L ,1. 609, 10 M L. T 
263, 38 I. A. 129 (P. C ), referred to. 

Second appeal against a decree of the 
Couit nf tl.e District Court, South Malabar, 
in A, S, No. C52 of 1921, preferred against 



L 0. 1926] 



KALENTHKR AMMAL V. MA MI. 



125 



that of the Court of the Additional Dis- 
trict Munsif, Palghat, in 0. S. No. 415 of 
1920. 

Mr. P, S. Naryanas'wamy Iyer, for the 
Appellant 

Mr. K. Bhashyam lyengar, for the lle- 
spondent. 

JUDGMEN T. In this case the plaintiff 
and his family obtained a saswatam lease 
of certain piop^rty which was dedicated 
in trust. The plaintiff was appointed the 
managing trustee and in pursuance of that 
appointment, he gave notice to the peison 
in possession of the property to deliver it 
up. The title of plaintiffs transferor was 
disputed and subsequently plaintiff pur- 
chased the safiwatam right from the rival 
ycnwii in his own name. He now sues for 
damages for trespass and an injunction. The 
lower Appellate Court dismissed his suit on 
the ground that unders #8 of the Trusts Act, 
plaintiff was bound to hold the property on 
Lehalf of the trust and could not, therefore, 
bring a suit in his personal capacity in 
dr! iiM'h 1 1 of the trust. 

The n'rst argument put forward in appeal 
is that inasmuch as the plaintiff did not 
obtain actual physical possession of the 
property, section 88 does not apply. In 
s. 88 there is no recital as to the possession 
of the property and in the cases relied on 
by the appellant, Muniswami Chetty v. 
Maruthammal (1) and Srinivasa Moorthy v. 
Venkatavarada lyengar (2), there is really 
nothing to support this contention. In 
fact in Muniswami Chetey v. Maruthammal 
(1) it was held that "If an executor accepts 
the office and acts as executor 'with full 
knowledge of all the circumstances bear- 
ing on his right, 1 ... .... he is 

estopped from subsequently repudiating 
the Will." Here the plaintiff accepted the 
trust arid acted upon it and consequently 
he is now estopped from disputing the 
trust. 

The next point put forward is that the 
plaintiff is entitled to be re-imbursed out of 
the trust the money which he paid out of his 
own pocket and that, therefore, until that is 
done the property is his own. This is, no 
doubt, true and would be applicable in a case 
where the beneficiaries sought to take the 

(1) 7 Ind. Gas. 176; 20 M. L. J. C87 at p. 698; (1910) 
M. W. N. 233, 8 M. L T. 124; 34 M. 211. 

(2) II Ind. Car 447, 34 M. 257, 15 C. W. N. 741; 8 
A. L. J. 774; 13 Bom. L, R. 520; (1911) 2 M. W. N. 375, 
140. L.J.64; 21 M. L. J. 669, 10 M, L. T. 263; 38 L 
A, 129 (J?, 0,), 



possession out of the plaintiff's hands, but 
in the present case this is not even a suit 
against the beneficiaries but a suit against 
a co-trustee and when s. 88 lays dowxi 
that the plaintiff must hold this property 
for the benefit of the trust, I do not think 
that any Court would allow him to sue in 
his own capacity as being solely entitled 
to the property. If he does sue in such 
capacity he is, in effect, committing a breach 
of trust. Plaintiff is admittedly in posses- 
sion of the trust pioperty and can out of 
it recoup himself what he has spent for the 
benefit of the trust. Consequently I think 
that the lower Appellate Court is quite right 
in dismissing his suit. The second appeal 
is dismissed w r ith costs. 



Appeal dismissed 



RANGOON HIGH COURT. 

CIVIL MISCELLANEOUS APPLICATION 
No. y3 OF 
April 22, 
Present: Mr. Justice Rutlcdgo and 

Mr. Justice Heald. 

KALENTHER AMMAL APPLICANT 

versus 

MA MI AND ANOTHER RESPONDENTS. 

Civil Procedure Code (Act V of 1003), 7, r 10, 
XLV Remand by Jhgh Court Appeal to Privy 
Council -Addition of parties- Power of Couit 

A suit was dismissed by the District Court but -wag 
remanded by the High Court on appeal Defendants 
apj. ied fur and obtained leave to appeal to the Privy 
Council. Petitioner then applied to the High Court 
to be added as a defendant in the suit 

Held, (I) that the High Court having passed a final 
order in the case remanding the ease to the District 
Court, was functus ojjicio and could not, therefore, 
make any order adding parties to the case, [p. 126, 
col l.J 

(2) that as regards the appeal to the Privy Council 
the High Court had no powers beyond those given, 
in O. XLV of the C. P. C., and that theio was, in 
that older, no power to add parties; [ibid.] 

(3) that the District Court had seizin of the case 
as a result of the remand by the High Court and had, 
therefore, power to add parties, [ibid.] 

Mr. Patel, for the Applicant. 

Mr. Kalyanwala, for the Respondents, 



RAMPAL SINGH v. KAJRANG SINGH. 



JUDGMENT, In Suit No. 8 of 1922 
of the District Court of Pegu Kalenther 
Ammal, as widow of one Sheik Moideen, 
sued for administration of Sheik Moideen's 
estate by the Court, and joined as defend- 
ants Ma Mi, who also claimed to be a 
widow of Sheik Moideen's, and Mahomed 
Eusoof, who claimed to be his son by an- 
other wife Ma Kin. 



[42I..O. 1926J 



ed with costs Advocate's fee to be two 
gold mohurs. 

z - K. Application dismissed. 



The District Court found that Kalenther 
Ammal had been divorced by Sheik Moi- 
deen, and, holding on that ground that she 
had no right to sue, dismissed her suit. 

She appealed to this Court t which found 
that she had not been divorced, and re- 
manded the case to the District Court for 
disposal on the merits. 

Ma Mi and Mahomed Kusoof then applied 
to this Court for leave to appeal lo the 
Privy Council, and leave has been granted. 

Now the present petitioner Halhna, who 
claims to be a pr~-. H .-r 1 ' of Sheik 
Moideen, her mother JJoouiuia Having been 
a daughter of his by still another wife 
Jooma Bibi, claims in this Court to be 
added as a defendant in the suit. 

She applied in the District Court after 
the suit was remanded by this Court, but, 
as the records were in this Court in con- 
nection "with the appeal to the Privy Coun- 
cil, no orders were passed on her applica- 
tion. 

It seems clear that this Court has no 
power either in the proceedings in Appeal 
No. 74 of 1923, or in the proceedings on 
the application for permission to appeal to 
the Privy Council to add petitioner as a 
defendant in the suit. 

So far as the appeal to this Court is 
concerned, this Court, having passed a final 
order remanding the case to the District 
Court, is functus officio. 

So far as the appeal to the Privy Council 
is concerned, this Court has no powers be- 
yond those given in O. XLV, and there is 
in that Order no power to add parties. 

The District Court has seizin of the case 
as a result of the remand by this Court, 
which remand is still effective, although 
proceedings in the suit have, by consent 
of the parties, been stayed, and the Dis- 
trict Court has power to add parties. 

Petitioner should, therefore, renew her 
application to that Court. 

The application to this Court isdismies- 



OUDH CHIEF COURT. 

SECOND CIVIL APPEAL No. 415 OF 1924. 

November 20, 1925. 
Present : Mr. Justice Aahworth and 

Mr. Justice Raza, 
RAMPAL SINGH DEFENDANT APPELLANT 

versus 

RAJ RANG SINGH PLAINTIFF 
RESPONDENT. 

Custom, essentials of --Family customModern 
instances Inference, of custom. 

Per Raza, J If a party relies upon the special 
custom of a family to take the succession out of the 
ordinary Law, such custom must be proved to be 
ano 10 nt, continuous, certain and reasonable and, 
beiritf m derogation of the general rule of law, must 
be construed strictly A" custom must be satis- 
factorily proved by evidence of particular instances 
so numerous as to justify the Court in iinding 111 
favour of the custom [p 129, col l.J 

When the custom is proved to exist it supersedes the 
general law winch however still regulates all outside 
the custom, \ibid ] 

Ram Nandnn Singh \ Janki Koer, 29 C. 828- 29 I 
A 178, 7 W N 57- 4 Bom L. R. 664, 8 Sar ' P G 1 " 
J. .351 (P ), relied on 

Per Ashworth, J. A custom must be unequivocally 
stated and proved but it does not follow that it 
cannot be proved by inference Inference is one of 
the methods of proof and in the case of custom there 
is no reason to reject a clearly logical inference 
against which no consideration prevails, fp. 131, cols. 1 
& 2.] 

Per Raa, J. (Ashworth, J , dissenting) One instance 
or even four modern instances are not sufficient to 
prove a family custom, [p 129, col. 1 ] 

Durqa Charan Mahto v Raghunath Mahto, 20 Ind 
Cas 810, 18 C. W. N 55, 18 C. L. J. 559, referred to.' 
The existence of a custom of the brothers and 
nephews of a deceased Hindu succeeding together 
would not lead to a necessary inference that a custom 
existed to this effect also on the death of a childless 
widow [ibid ] 

Appeal from a decree of the Additional 
Sub- Judge, Sultanpur, dated the 12th July 
1921, confirming that of the Munsif, Sultan- 
pur, dated the 25th of September 1923. 
Mr. Zahur Ahmad, for the Appellant. 
Mr. Naimullah for Mr. Naimatullah, for 
the Respondent. 

JUDGMENT, 

Raza, J. (November J7, 1925). This ia 
a defendant's appeal arising out of a suit for 
possession of certain zemindari shares in 
Mahal Utri Pargana Miranpur, District 
Sultanpur. The relative position of the 
parties will appear from the following 
pedigree ; 



I. 0. 1926] 



RAMPAL SINGH V, RAJRANtf SINGH. 



127 





KALYAN SHAH 

1 
Faqir Shah 

1 


x 




p Singh 


( 

Kaim Singh Oirdhar 
Bodhai 


1 
Singh 

Singh 


I 
Purai 

ingh 

i 


imal 


i 

Qandharaj 

Singh 


f 


~ I 
jingh, Gaiyan Dili S 
') Singh 

Darshan Singh 
1 
Rampal Singh, 
(defendant No. 7) 


( } Dhaunkal 6 
Suphal Singh, Kunjal Singh (childless 
(childless) 


Nidhan Singh, Paroti Singh, 
(childless) (childless). 


{ 




Mansa Singh, Ratipal Singh, 
(childless) (childless; 
Mvsammat Sartaj Kuar, 
(widow). 


( \ \ 
Jahar Sinph, Sobai Singh Achha 
(childless) j 
Sinner Singh, 
(childless) 


i \ 
1 Singh Sarnam Singh Bhnjan 


f 
Dhamo vSingli, 
(childless) 


Bandhu Singh, 

(childless) 


f 


"/I . 



(childless). " (childless)" ' i snri s mg h Hulas Singh, Ajodhlya 

---Alusamma-t Jarao Kucr, ; (childless ) Singh 

Ovidow). Bhawani Dm (childless.) 

Singh, (childless) 
Musammat Jitaoo 
Kuer, (widow) 



SambhaljSingh, 
(childless) 


Efcram Singh, 
(childless). 


! 
Moti Singh, 


i other sons (died 
in infancy). 


Suohita Singh, Hardayal Singh, 
(childless.) | 
Sheo Daval Singh, 
(childless). 


Phulman Harnam 
Singh, Smgh, 
(childless). (childless) 


i i 
Par gas Amina Singh, 
Singh ^childless.) 


Ram Niwaz 
Singh 

i 

i 

i 



Pirthipal Singh. Mahip Singh, 
(childless) 



Saltanat Singh. Bindeshwari Bax, Gulab Singh 
(childless). | 

Bajrang Singh, (plaintiff.) 



Sheopal Singh, Ohauharaj Bakhsh 
Mahdeo Singh 


T. ..* ' " ngh, Raghubir Singh Udai 1 


tfarain Singh 

_ 


Singh, ''defendant Ram Hit Singh, (defendant 
No. 9.) No 10). 


( } Jairam 
Ram Sahai Ramgopal Singh, 
Singh (defendant No. 5.) 


(defendant f 
No 6.) RamKuber, 
(defendant N 2 ) 




Dalip Singh, Dhiraj Singh, 
(childless). (defendant No. 3.) 



Jang Bahadur, (childless). 



Inderjit Singh, (defendant Bikarmajit Singk 

No. 7,) | 

Ram Behari Singh, (defendant Ko 3 ) 



128 



RAMPAL SINGH v. RAJRANG SING*. 



I. 0. 1926] 



Harpal Singh, liar Bakhsh Singh and 

aguHMiriiiiSiiiifli \\cii 1 co sharers of thcsaid 
mahal. Harpal Singh and Har Bakhsh Singh 
both died childless. Harpal Singh died 
about 50 years and Har Bakhsh Singh 
about 40 years ago. Though Harpal and 
liar Bakhsh (brothers) lived jointly but 
mutation was effected in respect of the 
share of Harpal Singh in favour of his 
widow Musammat, Jasaoo Kunwar. She 
got possession of Ilarbkhsh Singh's share 
also on his death. On the death of Bhawani- 
din's widow Musammat Jitaoo, mutation 
was made in favour of Musammat Jasaoo in 
respect of her share also in 1892. Thus 
Musammat Jasaoo got possession of these 
three shares and held them till her death. 
She died on the 18th November 1918. A 
revenue partition was made in 1911 and the 
said shares were allotted to a mahal called 
after her name. At the time of the death 
of Musammal Jasaoo three persons, namely, 
Gulab Singh, (father of the plaintiff), 
tiaghubir Singh (father of the defendants 
Nos. 9 aad lu) and Udit Narain Singh 
(father of the defendant No. 7) were the 
nearest reversioneis of Harpal Singh. How- 
ever mutation was effected in favour of 
the plaintiff Bajrang Singh, the defendant 
No. 1. Rampal Singh, and 8 others per- 
sons, the defendant No. 1 getting 19 
shares and the plaintiff and others 16 
shares. The plaintiff brought the present 
suit against the defendant No. 1 and 9 
others claiming one-third share. 

The suit was contested by the defendants 
Nos. 1 to 6 principally. Their defence 
was that they were entitled to the property 
by virtue of a custom the particulars of 
which will be set out hereafter. The Court 
of first instance decreed the plaintiff's 
claim holding that the custom set up by the 
contesting defendants was not satisfactorily 
proved and was not applicable to the 
present case. Kampal Singh defendant No. 1 
alone appealed but his appeal was dismissed 
by the Subordinate Judge of Sultanpur on 
the 12th July 1921. He has now appealed 
to this Court. The question of custom is 
the only question to be decided in this 
case. The plaintiff's father being one of 
the nearest reversioners, the defendant- ap- 
pellant cannot come in except on the ground 
of the custom set tip by him. 

Musammat Jasaoo Kunwar had no right to 
the property which she was holding in her 
lifetime. She had no right to succeed Har 
J3akhsh iSingh and Musammat Jitaoo 



Kunwar, However she acquired title to the 
property by adverse possession and it is not 
disputed that it became her stridhan pro- 
perty. The stridhan property of an issue- 
less woman goes to her husband and aftei 
him to his heirs in order of their succession 
to him. Tinder the Mitakshara Law the 
right to inherit arises from propinquity that 
is proximity of relationship. The appellant 
is the relation of a remoter degree of 
descent than the plaintiff's father and can- 
not succeed until and unless the alleged 
custom is made out. 

The custom set up by the defendant-ap- 
pellant is as follows : "In the community 
(tribe) and family of Harpal Singh and the 
parties the custom which prevails relating to 
inheritance is that on the death of a child- 
less widow her as well as her husband's 
estate is inherited by the collaterals of her 
husband, having regard to their descent 
without any consideration of their nearness, 
the descendants of theelde&t son receiving 
19 shares and those of the remaining sons 
Ifi shares." The defendant-appellant alleges 
that his ancestor Girdhar Shah was the 
eldest son of Faqir Shah. No mention of 
the alleged custom was made in the wajib- 
nl-arz (that is the Wajib^ul-arz of Utri Ex. 
A-fl). 

The- oral evidence which has been pro- 
duced by the defendant-appellant to prove 
that brothers and nephews succeed together 
by custom is unreliable and insufficient. 
The learned Munsif has subjected that evi- 
dence to a careful analysis. No instance was 
given in which succession by Collaterals also 
was regulated by that custom. The oral 
evidence has been properly rejected by the 
lower Courts. 

The appellant's learned Counsel relies on 
documentary evidence principally. He has 
referred to Exs. A-l to A- 5 and A-23. 
Exs. A-l to A-5 show that the plaintiff's 
father Gulab Singh had brought a suit 
against his uncle Ram Niwas Singh in 1866 
in respect of the property of his another 
uncle Phulman Singh, who had died child- 
less. He was not entitled to any share in the 
property of Phulman Singh, under the 
Hindu Law, in the presence of his uncle 
Eamniwaz Singh but he had claimed 
a one-third share in that property. He had 
made no mention of any custom in his 
plaint but his plaint and his statement 
show that he had taken the law and the 
custom both, to be the same. Ramniwaz had 
admitted the custom in bis statement and 



[92 tO. 



&AM0AL SINGH V. RAJRANQ SINGlf. 



129 



had contested the suit simply on the ground 
that a panchayat had already decided that 
Gulab Singh could not take the property 
unless he accepted his liability to pay his 
share of the debt of the deceased. The 
liability for the debt along with the pro- 
perty was the only question to be decided 
in -that suit. The claim was eventually 
decreed without any liability for the debt. 
The principal custom which has been set 
up in this case was not set up or recogniz- 
ed in that case. Ramniwaz had stated the 
custom as follows : 

"If a co-shai'er either a brother or other 
near relative dies without any issue, then 
his share is divided among the remaining 
living co-sharers according to their respec- 
tive shares." In my opinion the statement 
of Ramniwaz alone does not establish the 
custom in question. It should be borne in 
mind that if a party relies upon the special 
custom of a family to take the succession 
out of the ordinary Hindu Law, such cus- 
tom must be proved to be ancient, conti- 
nuous, certain and reasonable and being in 
derogation of the general rule of law, must 
be construed strictly. A custom must be 
satisfactorily proved by evidence of parti- 
cular instances so numerous as to justify the 
Court in finding in favour of the custom. 
One instance or even four modern instances 
are not sufficient to prove a custom. [See 
Durga, Charan Mahto v. Kaghunath Mahto( I),] 
When the custom is proved to exist itsuper- 
sedes the general law which however still 
regulates all outside the custom. [See 72am 
Nundun Singh v. Janki Koer (2) and Mata 
Din Sah v. Sheikh Ahmad Ali (3).] In the 
first place the statement of Ramniwaz 
alone, mentioned above, does not establish 
the custom of brothers and nephews suc- 
ceeding together and in the second place 
that statement does not establish the parti- 
cular custom under consideration. I think 
the custom of brothers and nephews of a 
deceased man succeeding together does 
not lead to a necessary inference that a 
custom exists to this effect also that on the 
death of. a childless widow her and her 
husband's properties are inherited, accord- 
ing to their respective stocks by the persons 
descondiftg from the same ancestor as her 
husband but without any regard to the 
nearness and remoteness of the persons 

(1) 20 Ind. Cas. 810; 18 C. W. N. 55; 18 C. L. J. 559* 
(2)i 29 O. 838; 29 I. A. 178; 7 0. \V. N, 57; 4 Bom, L 
E. 664; 8 Sar, P. 0. J. 351 (P. O.). 
(3) 11 0. 0. 1, 

9 



taking the properties. I think the latter 
custom is a different custom and is strictly 
to be proved. In my opinion Exs. Al to 
A5 do not help the defendant-appellant in 
this case. 

Exhibit A23 is a copy of a judgment in a 
suit between some Bajgoti Tahkurs of 
Dahyawau, District Sultanpur. It is true 
that following custom was held to be 
proved in that case : " If a man dies with- 
out leaving a male issue his relatives, 
namely, brothers or cousins or nephews (son 
of brother or cousin) and grandson (grand- 
son of a brother or a cousin; get shares in the 
property of the deceased without regard to 
nearness or remoteness." However that 
custom was held to be proved in that case 
as a family custom and not as a tribal 
custom. This is clear from the judgment 
of theMunsif who decided that case. The 
judgment shows clearly that no attempt 
was made to prove the custom as a tribal 
custom in that case. It appears that the 
parties to tlie^present suit are also Bajgoti 
Thakurs, but it is not shown that they are 
related as members of a family to the pro- 
prietors of village Dahyawau. It was held in 
Lalmanv. Nand Lai (4), that wajib-ul-arais 
of villages belonging to the same clan are 
inadmissible in proof of a family custom 
unless it is shown that the proprietors of 
these villages were related as members of 
a family to the plaintiffs. "There is no 
objection to a party pleading that a custom 
obtains both in a family and in the tribe 
to which that family belongs but he must, 
of course, prove that the custom is binding 
on the family, whether he confines his 
evidence and plea to the family or not". 
Parbati Kuar v. Rani Chandrapal Kuar (5). 
In the present case no attempt has been 
made to prove the custom in question as a 
tribal custom. The defendant-appellant 
attempted to prove the custom as a family 
custom but failed in his attempt. I do not 
find a smgle instance in which the particular 
custom set up in this case was claimed, 
recognised or exercised. Under these cir-* 
cumstances I think the lower Courts were 
perfectly right in holding that the alleged 
custom was not proved and the plaintiffs 
claim must, therefore, be rejected. In my 
opinion there is no force in this appeal. 

I would, therefore, dismiss this appeal 
with costs. 

'4) 20 Ind. Cas. 894; 17 O, C. 1. 
.'5 80,0. iM at p. 100, 



ISO 



SINOH 



Ashworth, J. (November 18, 1925). 
This is a defendant's second appeal. The 
plaintiff's claim was resisted by the appel- 
lant on the ground of the existence of a 
certain custom, but both the lower Courts 
have held that he failed to prove this 
custom. The only question arising in this 
appeal is whether the lower Courts were 
right in holding that the custom did not 
exist. The custom set up may be phrased 
as follows: 

"A right of representation exists where- 
by collateral descendants in different degrees 
from a common ancestor succeed to the 
shares to which their immediate ancestor 
if alive would succeed." 

There were two alternative claims in res- 
pect of this custom. One was that the 
custom prevailed in the family. The other 
was that the custom prevailed in the com- 
munity of Baijgoti Thakurs settled in the 
Sultanpur District to which this family be- 
longs. 

As regards the family custom a prelimi- 
nary objection has been taken that the de- 
cision of the lower Courts was one of fact 
which cannot be upset in second appeal. 
The evidence relied upon to prove this 
custom was the record of a certain case in 
which Gulab Singh, father of the plaintiff 
Bajrang Singh sued his uncle Ramniwaz 
Singh for a share of the property left by 
another uncle and was successful. The 
plaintiff in that case, it was urged by the pre- 
sent appellant, had based his claim on the 
custom now set up. The defendant in that 
case did not deny the custom but defend- 
ed his suit on another ground. The suit 
was decreed. These proceedings embodied 
in Exs. Al to A5 were pleaded as a trans- 
action in which, to use the words of s, 13 
of the Evidence Act, the custom was "claim- 
ed and recognised." The Court of first in- 
stance stated that "There was no evidence 
to prove that the father of Gulab Singh 
had pre-deceased Phulman Singh", i. e., the 
uncle whose property was in question in 
the suit. Accordingly it held that the case 
was not necessarily evidence of the custom 
set up. In other words the Court held that it 
was possible that Gulab Singh was suing 
for property which had vested in his father 
before that father's death and as representa- 
tive of his father, in which case there was 
no invocation of the custom now set up. 
The lower Appellate Court also held that 
the claim was based on the ordinary law of 
(succession and not on any custom. Now it 



[921.0.1926) 

may be that the Courts were wrong in hold 
ing that in that case no custom was set up 
either expressly or by implication. It may 
be that the plaint showed that Gulab 
Singh's father had died before the succes- 
sion in question in that case opened out, 
and that for this reason custom was alleged 
by implication. But no question of law 
arises in second appeal In determining what 
the plaint in that case meant and in decid- 
ing even wrongly, that there were no circum- 
stances which would give a particular mean- 
ing to that plaint, the Courts were decid- 
ing questions of fact. We allow the pre- 
liminary objection that so far as the alleg- 
ed family custom was held not to be proved 
the decision of the lower Appellate Court is 
not open to appeal. 

It is next urged that a tribal custom was 
set up and proved. It was alleged alter- 
natively to a family custom in the plaint, 
but no attempt seems to have been made to 
prove it. Exhibit A23 is invoked in argu- 
ments in this appeal. That is a judgment 
where the custom set up was held applicable 
io "the descendants of one Chitra Sen." As 
the Court of first hearing has remarked, 
there is no evidence to show that the pre- 
sent family are such descendants. The 
wayib-ul arz of the village says that all the 
Bachgoti Thakurs of the Sultanpur District 
are descended from a common ancestor 
Barial Singh but it is not suggested that 
Barial Singh was descendant of Chitra Sen. 
I have seen the judgment of my learned 
colleague I concur with it so far as the 
finding is that the appeal should be dis- 
missed. I think it, however, desirable to 
express dissent in respect of three matters. 
My learned colleague quotes the case 
Durga Charan Mahto v. Raghunath Mahto 
(1) as an authority for holding that a family 
custom should not be held proved merely 
by four modern instances. Reference to that ' 
decision shows that the Calcutta High 
Court were dealing with a custom set up 
as a family custom and referred to the 
Privy Council c&szCliandikaBakhsh v. Muna 
Kunwar (6) as showing that their Lord- 
ships of the Privy Council had declined to 
find in favour of the alleged custom upon evi- 
dence which consisted of four modern in-' 
stances. A reference, however, to the decision 
of their Lordships of the Privy Council will 
show that they were considering in that 
case not a family custom but a case of tribal 
(6) 29 1. A, 7; 24 A. 273; 6 0. W. N, 425; 4 Bom, L, 
B, 576; 8 8w.P,O.J, 888^,0.). 



[92 1. 0. 1916] 



custom. It is true that the head-note speaks 
of a family custom being set up but the 
custom that was being set up in that case 
was one said to obtain in the tribe known in 
Oudh as Ahban Thakurs. The evidence in 
the case had shown only four instances in 
favour of the tribal custom whereas there 
were altogether 18 instances discussed. I 
cosider that this ruling of the Privy Coun- 
cil has no application to a custom set up as 
a family custom. 

Again I cannot agree with the finding 
that the existence (if proved) of a custom of 
brothers and nephews of a deceased 
man succeeding together would not lead to 
a necessary inference that a custom existed 
to this effect also on the death of a child- 
less widow. There is a rule of Hindu Law 
which is set put as follows in s. 196 (1) of 
Dr. Gour's Hindu Code, 2nd Edition. 

"The stirdhan of an issueless woman de- 
volves on her husband if she was married 
to him in the Brahama form which will be 
presumed, and failing him to his nearest 
sapindas in the order of their succession to 
him/; 

It is correct that a custom must be un- 
equivocally stated and proved, but it does 
not follow that it cannot be proved by in- 
ference. It is urged that the evidence only 
justifies it being held that the property of 
a propositus will go to collaterals in differ- 
ent degrees without any preference being 
given to nearness, but what is proved does 
not justify us in holding that this will 
apply in respect of the property of a child- 
less widow. Reliance has been placed on 
the case Bijai Bahadur Singh v. Mathura 
Singh (7). This is a judgment of a Single 
Judge of the Judicial Commissioner's Court 
of Oudh, but it follows the Privy Council 
decision of Brij Indar Bahadur Singh v. 
Ranee Janki Koer (S). In these cases it 
was held that from a custom excluding 
daughters and their issue from inheriting 
the property of their father it could not be 
inferred that they -were excluded from in- 
heriting the stridhan property of their 
mother. There was an obvious reason for 
this. Hindu Law generally favours the 
claims of daughters in respect of their 
mother's property. Here there is no such 
principle involved. I consider that in- 

(7) 68 Ind. Cae. 555; 9 0. L J. 327; 4 U. P. L. R. 
(0.) 66; (1922) A. I R. (0.) 278; 25 0. C. 345. 

(8) 5 I. A. 1; 1 0. L. R' 318; 3 Sar. P. G. J. 763; Bald. 
148; 3 Suth. P. 0, J. 474; Rafique & Jackson's P. C, 
No, 48 (P,0,). 



LAL V. LORINBt fcAt. l3l 

ference is one of the methods of proof and 
that in the case of a custom, there is no 
reason to reject a clearly logical inference 
against which no consideration prevails. It 
appears to me that inasmuch as the stridhan 
of an issueless woman devolves first on her 
husband and then on his sapindas a custom 
regulating succession by sapindas to a 
male's property must also be held to regu- 
late succession by the sapindas of the hus- 
band to the stridhan property of his widow. 
Lastly I do not agree that Exs, A-l to A-5 
were not admissible as evidence of an 
instance under s. 13 of the Evidence Act, 
namely, as a transaction by which the 
custom in question was claimed and recog- 
nised. It makes no difference that the 
defendant contested the claim of the plaint- 
iff in that case on another ground, namely, 
that he could not get the property in ques- 
tion without paying up the previous debt. 
The claim was only sustainable if inheri- 
tance was governed by the custom now set 
up. It was an easy answer to the defend- 
ant, in that case that the custom did not 
exist. The fact that he did not resist the 
suit by denying the plaintiff's right in my 
opinion makes this case an instance, No 
doubt it was only one instance and it was 
unnecessary for this Court in appeal to 
consider it inasmuch as the finding in re- 
spect of the family custom was one of fact 
and no question of law arose. 

By the Court. We direct that the 
appeal shall be dismissed with costs to the 
respondent. 

N. H. Appeal dismissed. 



LAHORE HIGH COURT. 

SECOND CIVIL APPEAL No. 1093 OF 1924. 

January 8, 1925. 
Present : Mr. Justice Harrison. 
MUKAND LAL PLAINTIFF -APPELLANT 

versus 

Musammat LORINDI BAI DEPENDANT 
RESPONDENT. 

Civil Procedure Code (Act V of 1008), s. 11* 
Execution of decree AttachmentObjection Quta* 
tion of title, decision o/ Res judicata. 

A plot of land was attached in execution of a decree. 



132 



LAL V, L6HINDI BAI. 



Plaintiff and defendant both filed objections to the 
attachment each alleging that he was the owner of 
the plot. The Court held that the plot had been 
purchased by the defendant from the Municipality and 
belonged to the defendant. Plaintiff subsequently 
purchased the plot from the Municipality and sued 
the defendant to recover possession of the plot 

Held, that although the Municipality was not a party 
to the execution ]: . -ii 11 ^- the question of title to 
the plot was r-,- 1 ;-r/;-V'i between the parties by 
virtue of the decision of the Executing Court 

Second appeal from a decree of the Dis- 
trict Judge, Dera Ghazi Khan, dated the 
18th January 1924, affirming that of the Sub- 
ordinate Judge, Fourth Class, Dera Qhazi 
Khan, dated the 7th July 1923. 

Mr. S. Mukerji for Lala Bar GopaJ,forthe 
Appellant. 

Mr. Mukand Lai Puri, for the Respond- 
ent. 

JUDGMENT* The facts of thin case 
are that Government made over a certain 
area to the Municipal Committee of Dera 
Ghazi Khan with a view to the building of 
a new abadi. Plots were sold by the Muni- 
cipal Committee and the land in suit is the 
frontage of , one of those plots. One Pritam 
Das obtained a decree against one Bosa and 
after his death in 1916 applied that this 
frontage should be sold in execution of his 
decree. Objections were lodged by Musam- 
mat Loriudi Bai, the widow of Bosa and 
defendant in this case, and also by the 
plaintiff Mukand Lai. Both contended that 
the site belonged to them. It was decided 
by the District Judge on the 12th of June 
1918 that Musammat Lorindi Bai had herself 
purchased this site from the Municipality 
and that it could not, therefore, be attached or 
sold. On the 18th of October 1917 the Muni- 
cipality passed a mutation order entering 
the name of Musammat Lorindi Bai as the 
owner of this site and on the 1st of Decem- 
ber 1917 granted permission to her to build 
upon it. In spite of this fact, acting on very 
peculiar advice given by the Government 
Pleader and accepted by the Deputy Com- 
missioner, the Municipality while admitting 
that the title wap doubtful and pointing out 
the fact to the plain tiff sold it to Mukand Lai, 
for Re. 1-8 it being clearly explained that 
he took all risks and would not be com- 
pensated if it were found that he had 
wasted his Re. 1-8. He now brings this suit 
and is met by the decision of the District 
Judge in a suit, to which he was a party, to 
the effect that the defendant had acquired a 
goqd title from the Municipality. His con- 
tention is that because the Municipality was 



[9S I. 0. 1926] 

not impleaded in those proceedings the 
decision does not bind him, as vendee 
from the Municipality. Whether it binds 
the Municipality or not it must certainly 
binds him, in my opinion, audit operates as 
res judtcata. Knowing that this decision had 
been given he deliberately bought a bad 
title and he has only himself to blame. The 
Deputy Commissioner's order shows the 
rights sold as being Government rights. 
As a matter of fact they were the rights of 
the Municipality and this Mr. Mukerji 
admits, that is to say, the plaintiff's vendor 
and that of Musammat Lorindi Bai were one 
and the same. In spite of this fact he con- 
tends that he is now entitled to insist on 
strict proof of the payment of consideration 
by Musammat Lorindi Bai, althougth the 
matter has been finally adjudicated upon 
as between him and her by the District 
Judge, and it was decided in that litigation 
that Musammat Lorindi Bai had acquired 
a clear title and that the rights of the 
Municipality had automatically become ex- 
tinct. Had he purchased the title of some 
person other than the vendor to Musammat 
Lorindi Bai, there might be some force in 
his contention that he can re-agitate the 
question as being a different person from 
that person who took part in the previous 
litigation but the vendor from whom he 
has been fit to purchase, and who behaved 
in this peculiar manner in selling to him, 
is the very person whose right, title and 
interest were held in that previous litigation 
to have been transferred to and vested in 
Musammat Lorindi Bai, and, therefore, ex- 
tinguished for all time. As between him 
and her it has been found that her title is 
good and his must be bad, and, it was held 
that his present vendor had no subsisting 
title at the time he sold. 

1 find that it is a clear case of res judicata 
and dismiss the nppeal with costs. 

z. K. Appeal dismissed. 



S.vHAl MJSTfcl V. 8ATALI 



PATNA HIGH COURT. 

APPEAL FROM ORIGINAL OJRDE* No, 248 

OP 1923. 
June 13, 1924. 

Present: Sir Dawsoa Miller, KT M Chief 
Justice, aud Mr. Justice Foster. 
Bibi WASHIHAN-APPELLANT 

versus 
MIR NAWAB ALT RESPONDENT. 

Religious Endowments Act (XX of 18<>3), s, IS - 
Order refusing leaic to aw Appeal, whether lies- - 
Bengal, N. W. P. and Assam Civil Cvurts Act (XII 
of 1887), s. 20, scope of. 

No appeal lies against an order passed under 8. 18 
of the Religious Endowments Act. 

Section 20 of the Bengal, N. W. P. and Assam Civil 
Courts Act does not confer a right of appeal from 
every order of the District Judge to the. High Court; 
it only determines the forum to which an appeal, if 
any, shall lie from decrees or oidcrs of the District 
Judge. 

Appeal from an order of the District 
Judge, Shahabad, dated the 20th July 1923. 

Mr. Manmatha Nath Pal (with him Mr. 
N. N. Sen), for the Appellant. 

Mr. (7. N. Muklierjee, for Mr. M. Yunus, 
for the Respondent. 

JUDGMENT. 

Dawson Miller, C. J, [His Lord- 
ship after setting out the facts of the case, 
which are not material for the decision, 
proceeded : ] A preliminary objection has 
been taken that no appeal lies from an order 
of the learned District Judge under a, 18, 
Religious Endowments Act. This objec- 
tion, I think, is sound. The Act itself which 
creates the cause of action does not provide 
for any appeal from the order of the District 
Judge. Nor is there anything in the 0. P. 
0. which would indicate that any appeal 
lay. The order of the District Judge is 
clearly not a decree and the cases in which 
an appeal lies from orders are laid down 
in ss. 104 and 105 of the C. P. C., the cases 
are there named in which an appeal lies 
from certain orders and an appeal lies from 
no other orders. These two sections coupled 
with 0. XLI of the Code show quite clearly 
to my mind that no appeal is permissible 
in such a case. The only contention put 
forward by the other side is that under s. 20 
of the Bengal Civil Courts Act of 1887 it 
is provided that save as otherwise provided 
by any enactment for the time being 
in force an appeal from a decree or order 
of a District Judge or Additional District 
Judge shall lie to the High Court. The 
learned Vakil wants us to construe that 
section as if it granted a right of appeal 
from every order of the District Judge to 



the High Court, This is clearly not the ii 
terpretation of that section; the only th 
the section is dealing with is the form 
to which an appeal, if any, shall lie froml 
decrees or orders of the District Judge. 

In my opinion the preliminary objection 
is a sound one and this appeal is not per- 
missible. 

The appeal is dismissed with costs. 

Foster, J. I agree. 

K. s. r>. Appeal dismissed. 



PATNA HIGH COURT. 

APPEAL PUOM APPELLATE ORDER No. 213 

OF 1925. 

April 8, 1926. 

Present: Sir. Justice Das and Mr. 

Justice Ross. 

SAHAI MISTRIDEo&EE HOLDER- 
APPELLANT 

versus 
SATALI DARJI JUDGMENT-DEBTOR 

RESPONDENT. 

Construction of decree Executing Court, duty of 
Reference to pleadings and judgment. 

Though an Executing Court cannot go behind the 
decree, it ought to interpret the decree when an 
application for its execution is presented before it, and 
for that purpose, it ought to refer to the pleadings in 
the case and to the judgment passed by the Court, ** < 
Appeal from a decisio&.of the Subordinate 
Judge, Gaya, dated the 30th of May 1925, 
confirming that of the Munsif, Gaya, dated 
the 1 1th of February 1925, 
Mr. Sarju, Prasad, for the Appellant. 
Mr. Brijkishore Prasad, for the Respond- 
ent. 

JUDGMENT. We think ' this case 
mu8v go back. The learned Munsif thought 
that he had nothing to do with the mean- 
ing of the word "cfcfca;a." The learned 
Subordinate Judge, on appeal, did not 
quite take that view, but he proceeded on 
the dictionary meaning of the word 
"cWiaja." This is, in our opinion, erro- 
neous. It is quite true that an Executing 
Court cannot go behind the decree; but 
it if well-established that that Court 
ought to interpret the decree when an ap- 
plication for execution is placed before it, 
and, for that purpose, it ought to refer to 
the pleadings in the caae and to the judg 



GO^AL 1>. COLLECTOR 



[9* i, C 



ent passed by the Court. We allow the 
[>peal, set aside the orders passed by the 
)urts below and remand the case to the 
Jower Appellate Court for disposal accord- 
ing to law. Costs are reserved and will be 
dealt with by the learned Judge in the 
Court below. 
B. L. Case remanded. 



ALLAHABAD HIGH COURT. 

SECOND CIVIL, APPEAL No. 1163 OF 19?3. 

April 22, 192(5. 
Present: Mr. Justice Kanhaiya Lai and 

Mr. Justice Ashworth. 
GOPAL AND OTHERS DEFENDANTS 
APPELLANTS 

versus 

TUB COLLECTOR OF ALIGARH 
PLAINTIFF AND CHUNNA AND ANOTHER 

DEFENDANTS RESPONDENTS. 
Landlord and tenant Muali, grant of Transfer, 
prohibition against, effect of Grove Transfer, un- 
authorised- -Forfeiture Agra Tenancy Act (II of 
1901), 88. 150, J07- Suit for resumption of grove 
Jurisdiction of Civil and Revenue Courts. 

Where land is granted for planting a grove the 
person who plants the grove acquires, according to 
the general law, a transferable interest in 1 the land 
and in the absence of a custom to the contrary, the 
trses become his property. The person who plants 
wnt jyove possesses all rights in respect of his grove, 
which are not oxd-jiii <i Ly C-..-V ,-;. or the incidents of 
the tenure, [p. ii'IG, cuib. 1 a. i'. j 

Where the grant of a muafi tenure contains a con- 
dition restraining the tenure-holder from transferring 
his right but there is no Covenant for re-entry or 
forfeiture on such transfer, and the muafidar plants a 
grove, ponstructs a well and builds other con- 
structures of a permanent character upon the land, 
the landlord cannot claim to re-enter upon the land 
or forfeit the tenure upon a transfer of the tenure by 
the grantee, [p. 136, col, 1.] 

Per Ashworth, J. A local custom supersedes the 
Statute or general law. A local usage does not 
supersede it but is to be read into the contracts or 
implied contracts of persons living in the locality to 
which the usage applies. While a custom depends for 
its validity on its antiquity, a usage depends for its 
validity on its notoriety, [p. 137, col, 1.1 

A provision in a grant against transfer would be 
meaningless unless one were to read into it also a 
provision that it will involve forfeiture. The terms of 
a grant forbidding transfer must, therefore, entail 
that the right of reversion operates from the date when, 
possession is given to a third party under an un- 
authomed transfer, [ibid \ 

Sections 150 and 167 of the Agra Tenancy Act only 
exclude the jurisdiction of Civil Courts in cased of 
resumption gf "land 11 which means land let or 



held for agricultural purposes and a grovo is not 
such land. Therefore, a suit relating to the resump- 
tion of a grove does not fall within the purview of 
those sections, [p 137, col. 2 ] 

Second appeal from a decree of the Addi- 
tional Subordinate Judge, Aligarh, dated 
the 16th of May 1923, 

Mr. Panna, Lai, for the Appellants. 

Messrs. G. W. Dillon and M. A. Aziz, for 
the Kespondents, 

JUDGMENT. 

Kanhaiya Lai, J. The dispute in 
this appeal relates to a piece of muafi land 
occupied by a grove situated in Qasba Koil, 
close to the town of Aligarh. The land was 
originally granted by the predecessors of 
the plaintiff to Sirh Mai, the predecessor 
of the contesting defendant, for planting a 
grove, and the question for consideration is 
whether the descendants of Sirh Mai had a 
right to sell the grove to Ohunna and Ram 
Lai, and are liable to ejectment in conee- 
quence. 

The allegation of the plaintiff was that 
there was a custom appertaining to the 
muafis granted by the zemindars by virtue 
of which the muafi- holders or their descend- 
ants had no right to transfer the muafi by 
aale. The plaintiff questioned the right of 
the son and grandsons of Sirh Mai to trans- 
fer the grove, and he sued for the cancella- 
tion of the sale and for possession of the 
grove by the ejectment of the muafidars 
and their transferees. 

The plaintiff relied in support of the 
custom on the wajib-ul-arz prepared in 1872 
in which under the heading referring to 
"muafis granted by the zemindar for specific 
purposes 1 *, it was stated that so long as 
the muafidar or his descendants remain- 
ed in possession, there will be no inter- 
ference with them, and the muafidars shall 
have every right thereto except that of a 
transfer by sale. A list of the plots and 
groves then held as muafi was also given 
and among those plots and groves the 
grove in dispute was mentioned and de- 
scribed as an old grove (qadim baghicha) 
held by Sirh Mai. Both in the waijb-ul~ 
arz and in the khasra it was stated that 
the land had been given for the purpose 
of planting a grove, and that fact is not 
disputed. 

The Courts below found that the entry 
in the wajib-ul-arz was sufficient proof of 
a custom forbidding the alienation and 
that the plaintiff was entitled to a decree 
lor possession, 



(H2I. C 1986] 

The entry aforesaid does not, however, 
purport to record any custom. There are 
other clauses which purport to record 
customs then in force in the village, and 
there are some others which describe the 
rights of other classes of muafidars and of 
ex proprietors entitled to malikana rights. 
The entry relating to the muafidars hold- 
ing groves in the village merely records 
the incidents of the tenure, as dictated 
by the zemindar or his agent at the time, 
and though, as stated by their Lordships 
of the Privy Council in Anant Singh v. 
Durga Singh (1), there is no class of ' evi- 
dence more likely to vary in value, ac- 
cording to the circumstances, than the 
wajib ul arz, for entries at times are made 
therein connoting the views of individuals 
as to the practice thej would wish to 
see prevailing, rather than the ascertain- 
ment of well-established custom, it would 
not be unreasonable to presume from the 
entry that the intention of the grantor 
when he gave the muafi land for plant- 
ing the grove was that the enjoyment 
of tbe muafi land (as distinct from the 
right to the timber or the fruits of the 
grove) was to be restricted to the grantee 
and his descendants personally, The plaint- 
iff does not, however, rely on any such in- 
cident or condition of the grant, in the 
plaint. He does not even assert that for- 
feiture or resumption was one of the con- 
ditions of the giant or incidents of the 
custom Pet up. In fact in A la Bux v. 
Radhay Lnl (2) it was held that a statement 
in the ivajib-ul-arz by one of the interested 
parties that he had power to take away all 
muafis, would nut be regarded as sufficient 
proof of a custom of resumption. 

Where land is granted for planting a 
grove the person who plants the grove 
acquires according to the general Uw a 
transferable interest therein, and in the 
absence of a custom to the contrary, the 
trees become his property. As pointed out 
in Chokhe Lai v. tichari Lai (3), Lai Baij- 
nath Singh v. Chandrapal Singh (4) and 



(1) 6 Ind. Cas, 787; 32 A 363; 14 C. W. N. 770; 12 C. 
L. J. 36; 7 A. L, J. 704; 13 O. C. 163; 37 I A 191; 12 
Bom. L. R. 504; 8 M, L. T. 79; (1910) M. W. N. 327; 20 
M. L. J. 604 (P. 0.). 

(2) 30 Ind. Cas. 805. 

(3) 60 Ind. Cas. 115; 18 A. L, J. 820; 2 U, P. L. R. 
(A.) 292; 42 A. 634. 

(4) 73 Ind. Caa, 529; 21 A, L, J, d$7; A, I. R, 1923 All 
553, 



>V, O'WWOkOPAUOAfttt. 



Man Singh v. Madho Singh (5), the 
who plants such a grove possesses all rightlj 
in respect of his grove, which are not ex- 
cluded by custom, or the incidents of tbe 
tenure. No custom is established here and 
no right of forfeiture or re-entry or resump- 
tion is shown to have been reserved. 

The muafidar builb some structures over 
the land, besides a pucca well and boundary 
walls when he planted the grove. The 
grove was in existence from before Ife72, 
and if one of the incidents of the tenure 
was that; the muafidar shall have no right 
to alienate his muafi land, but no right of 
re-entry was reserved to the plaintiff, the 
muafi cannot be resumed and the muafi- 
dar or hia descendants cannot be ejected, 
though the sale of the muafi rights can be 
set aside. In fact the wajib-ul art states 
that & zemindar shall not interfere so long 
as the muafidar and his descendants remain 
in possession. There is no proof of any 
abandonment by them of their muafi lights 
in favour of the zemindar. The vendees 
had taken security fiom the vendors for 
the refund of the purchase-money in case 
their rights were interfered with. They 
have accepted the decree passed by the 
Trial Court against them and have nob fur- 
ther interested themselves in the case. The 
vendors alone have appealed and, in the 
absence of an express covenant for re-entry, 
no right of forfeituie can be enforced. 

In Parameshri v. Vittapa Shanbaga (6), 
where a permanent lease was granted by a 
certain person to another without any right 
to the latter to alienate the property, it was 
held that an alienation subsequently rriade 
by the lessee did not entitle the plaintiff to 
terminate the permanent lease and re-enter 
upon the land. In Madar Saheb v. Sanna- 
bawa Gujranshah (7) a clause in a lease, 
whereby the lessee covenanted not to alie- 
nate, unaccompanied by any clause for re- 
entry upon a breach of the covenant, was 
hel$ to be merely a covenant and not a 
condition, and a suit brought by the lessor 
for ejectment was dismissed. la Netrapal 
Singh v. Kalyan Das (8) where perpetual 
lease of a village was granted to a lessee and 
his heirs, containing a coverant against an 
alienation, by the lessee but no covenant 



(5) 79 Ind. Cft. 599; 22 A. L. J. 70; A. I. R. 1924 All 
430; L. R. 5 A. 34 Kev. 

(6) 26 M 137; 12 M L. J. 189. 

(7) 21 B. 19ft; 11 Ind. Dec fw s.) 132. 

V8) 28 A. 4CO, A. W, N, (1C08) CO; A, L, J, 190. 



QOPM* U COLLECTOR OF 



[92 1. 0, 



ing to the lejseor a right of re-entry upon 
JSreacn of the former covenant, it was 
Similarly held that the suecessore-in-title of 
the lessor could not recover the property, 
the subject of the lease, from the alienees 
of the suocessors-in-title of the lessee. In 
Dharani Kanta Lahiri v. Siba Sundari Deli 
(9) where a grant was made to certain per- 
Rons in succession without any power of 
alienation, it was held that though the 
alienation by one of the grantees, who was 
given a life-interest, was against the pro- 
visions of the grant and was bad in law, 
yet inasmuch as the breach of the 
provisions did not operate as a for- 
feiture, the plaintiff was not entitled to 
a decree for khas possession. In Basarat 
All Khan v. Maniiulla (lO) where a lease 
was granted containing a covenant prohibit- 
ing the digging of pits and tanks, or the 
transfer of the land in any way without a 
letter from the lessor and no right of re- 
entry was reserved, it was held that an 
assignment subsequently made by the 
lessee was operative, notwithstanding the 
covenant. 

What applies to a lease, where no right 
of re-entry is reserved, applies with greater 
force to the grant of a muafi tenure, where 
the grantee of the muafidar has planted a 
grove, constructed a well, and built other 
structures of a permanent character on the 
faith of the grant without any covenant for 
re-entry or forfeiture. The muafidars still 
reside in the town in whic)i the muafi is 
situated ; and there is no finding tjjat 'they 
have abandoned possession. The vendees 
alone seem to have abandoned their rights 
under the sale-deed. 

The appeal ought, therefore, to be allowed 
and the decrees of the Courts below modifi- 
ed eofaras they award possession as against 
the defendants-appellants. The paitjes to 
the appeal ought in the circumstances to 
bear their own costs here and in the lower 
Appellate Court. 

Ash worth, J.- This second appeal 
arises out of a suit brought by the respond- 
ent as zemindar against the appellants-de- 
fendants, transferees, and other defendants, 
transferors of a ceitain giove, for cancella- 
tion of the sale-deed executed by the former 
in favour of the latter. The suit was based 



(9^ 35 C. 1069; 80 I,. J 18S. 

(JO) 2 Jrd. Os. 416j 6 C\ 745; 10 C. J . J. 49, 



on the allegation thfrt according to 
(us.age or custom) recorded in the u'a 
arz of 1872, the defendants first party he!4 
the grove on a tenure which did not entitle 
them to transfer it to ft third party (de? 
fendants party No 2) and that the sale en- 
titled the plaintiff to resume the grove. The 
defence was that there was no such custom 
or usage, and that, in any case, the defend* 
ants were entitled to compensation, in the 
event of the suit being decreed, for a well, 
buildings and improvements. Both the 
lower Courts decreed the suit but allowed 
the defendants to remove the materials of 
constructions from the grove. The firsj 
Court hejd that the wajib-ul-arz was decisive 
as evidence of the tenure of the defendants 
first party, and that this tenure did not 
allow sale. The lower Appellate Court held 
that the general law prevailing in these 
Provinces was that a grove holder could not 
transfer, and that this general law was 
given effect to in the wajib-ularz. It held 
that the defendants had failed to rebut the 
presumption arising from the general law. 

In this appeal it is contended that the 
prevailing law in these Provinces is that a 
grove-holder may transfer his rights ; and 
reliance is placed in Lai Baijnath Singh 
v. Chandrapal Singh (4) and other decisions 
of this Court. It is also maintained that 
the passage in the wajib-ul-arz relied upon 
by the plaintiff does not prove any custom, 
usage or tenure binding on the defendants. 
It may be conceded that there is authority 
for holding that a grove-holder can sell 
under the provisions of the Tenancy Act 
unless he is precluded by custom, usage or 
contract. The plaintiff relies upon para. 19 
of the wajib-ul-arz of 1872 which is headed 
by the title "statement of muafi granted by 
the zemindar for special purposes." In 
this paragraph this particular grove is 
specified as granted without a right of 
transfer by the grantee. It has been 
clearly established by respondent's Counsel 
that it was the duty of the Settlement Officer 
in 1872 to "ascertain and record the fullest 
possible information in regard to landed 
tenures, rights, interests and privileges of 
the various classes of the agricultural com- 
munity" and it was provided that "for this 
purpose the proceedings should embrace 
the formation of as accurate a record as 
possible of all local usages connected with 
landed tenures*'. This was provided in 
Regulation VII of J822 which was not abro- 
gated in this -respect by ^Regulation IX of 



fS I. 0. 1928J 

1833, the last Regulation precedio* th<a 
Settlement of 1872. I construe this to 
m*an that it was a duty of the Settlement 
Officer to (a) record local customs and (fc) 
local usage. The paragraph is not a record 
of custom, because it does not purport to be 
this, but it may be construed as a record of 
local usage applicable, at any rate, to the 
holdings mentioned specifically. Now a 
local custom supersedes the Statute or gene- 
ral law. A local usage does not supersede 
it, but is to be read into the contracts, or 
implied contracts of persons living in the 
locality to which the usage applies. While 
a custom depends for its validity on 
its antiquity, a usage depends for its 
validity on its notoriety. The Settle- 
ment Officers were enjoined not only to 
record customs but usages. Regarding 
para. 16 as a record of local usage, it would 
be good evidence and, if accepted as suffi- 
cient evidence, would be binding not only 
on the zemindars who signed the wajib-ul- 
arz but on the grantees. The plaint can- 
not be construed as excluding reliance 
on "usage" as distinguished from custom. I, 
therefore, hold that the lower Courts were 
right in finding that the defendants first 
party were not entitled to sell the grove. 

The next question is what is the result 
of their having done so It has been argued 
that the wajib-ul-arz does not specify for- 
feiture as a result of a pale, and that, there- 
fore, there is no proof of liability upon 
defendants to forfeiture. But the provision 
against transfer would be meaningless 
unless we read into it also a provision that 
it will involve forfeiture. A liability implies 
a right and a right a remedy. There being 
no rent on the plot the zemindar would 
have no remedy. If there is a rent his 
remedy would have been to ignore the 
transferee and hold the transferor still 
liable. Apart from this it is clear that the 
transferor has given up possession. He 
has also given up his claim to title by the 
very fact of executing the sale-deed. In 
the case of abandonment the grove would 
revert to the zemindar, and the conduct of 
the transferor must amount to abandon- 
ment. He cannot claim to continue posses- 
sion through his transferee because he can 
take no benefit from his unlawful aliena- 
tion. Reference may also be made to s, 154 
(c) of the Agra Tenancy Act (U. P. Act II 
of 1901) which enacts that a rent-free 
grant is forfeited on breach of a condition, 



OOPAL V, COLLECTOR OP AT,I3ABH, 




^ isr 

Whirt is $n*4ted as a rule of law in the^caae 
of agricultural land granted rent- free ia^ 
equitable in the case of non- agricultural 
land so granted. 

The provisions of law applying i _ 
case of leases, which forbid an unlawful 
transfer .operating as forfeiture, except 
where there is a contract or custom or 
usage providing for this, are not applicable 
to rent-free grants. The terms of a grast 
forbidding transfer must entail that the 
right of reversipn operates, from the date 
when possession is given to a ithird party 
under such unlawful transfer. 

It is further urged that this being a suit 
for resumption of muafi, should have been 
brought in the Revenue Court under the 
provisions of s. 150 read with s. 167 of the 
Tenancy Act. It is sufficient to say that 
those sections only exclude the jurisdiction 
of Civil Courts in cases for the resumption 
of land which means land let or held for 
agricultural purposes, and that a grove of 
the description in suit is not such {and. 

It has been urged that the plaintiff was 
bound to pay compensation for the well, 
buildings and other improvements. No 
rule of law or equity has been shown jus- 
tifying such a claim. 

For the above reasons, I would dismiss 
this appeal with costs including costs on 
the higher scale. 

By the Court. As we disagree, the 
appeal will stand dismissed with costs in- 
cluding costs on the higher scale in this 
Court. 



z. K. 



Appeal dismissed. 




LAHORE HIGH COURT. 

CIVIL APPEAL No, 1702 OF Iyl8. 

October 22, 1923. 
t;-~Mr. Justice Scott-Smith 
and Mr, Justice Fforde. 
MUBLT DAS DEFENDANT APPELLANT 

versus 
ACHUT DAS PLAINTIFF RESPONDENT. 

Evidence Act (I of 187 2} } *. 86 -Statements recorded 
in Native State Copies forwarded by Resident 
Certificate, whether necessary Succession Certificate 
Act (VII of 1889), s. Sid Decision underlet, Whether 
operates auras .indicate. 

The mere fact that copies of depositions of witnesses 
recorded in a Court in a Native State are forwarded 
to a British Court by the Resident in due course is 
not equivalent to the certificate referred to in B. 86 of 
the Evidence Act. 

When a' certificate is required by law, it cannot be 
dispensed with merely because it can be obtained at 
any time. 

A decision arrived at under the Succession Certi- 
ficate Act upon a question of right between the parties 
does not, by virtue of the provision contained in s. 25 
of the Act, ^perate to bar the trial of the same ques- 
tion in any suit between the same parties. 

First appeal from a decree of the Senior 
Subordinate Judge, Delhi, dated the 8th 
May 1918. 

Mr. Sardha Ram, for the Appellant, 

Mr. Dev Raj Sawhncy> for the Respond- 
ent. 

JUDGMENT* The dispute in the pre- 
sent appeal relates to succession to the 
incumbency of a temple in Delhi known as 
Baghichi Madho Das. The previous incum- 
bent Man' Das died on the 17th October 
1912. The plaintiff-respondent claimed to 
eucceelas thecfceZaof Man Da*, whereas 
the appellant, Murli Das, who took posses- 
sion of the temple after the death of Man 
Das, denied that the plaintiff was the 
latter's chela, and said that he himself was 
entitled to succeed as the gurbhai of Man 
Das. It was not denied that Murli Da<* was 
the gurbhai of Man Das, but the Court 
below held that Achut Das, the plaintiff, 
was appointed by Man Das to be his chela 
and was, therefore, entitled to succeed. It 
accordingly decreed his claim, and Murli 
Das appeals. The Court below, in addition 
to deciding the point of fact in favour 
of the plaintiff, held that the question 
whether he was a chela of Man Das was 
res judicata on account of the decision of 
the Jaipur Court in his favour in a succes- 
sion certificate case. 

Upon the question of fact the lower 
Court has based its decision upon (1; the 
oral evidence of three Bindraban witnesses, 
Swami Gowardhan Das Rangacharia, Mah- 
ant Murli Dae and Chhote Lai, printed at 



. ACHUT DASI< ff 8 f, 0* 1888} 

,pag$e 28 to 30 of paper- book A ; (2) copies 
of the statements of certain witnesses who 
were examined in the succession certificate 
case (some of these witnesses have died and 
as" regards the others the Court was of 
opinion that thero waa reasonable ground 
.for holding that they could not be found 
within the meaning of s. 33 of the Evidence 
Act) ; and (3) a document (Ex. P, 1) 
which was prepared and attested for the 
purpose of , meeting the claim of Murli Das 
to a succession certificate in the Jaipur 
State. As regards the copies of the deposi- 
tions of witnesses who were examined in 
the succession certificate case it was object- 
ed in the lower Court, and the objection 
has been strongly pressed before us, that 
they are not admissible in evidence as the 
certificate of the Resident as required by 
s. 86 of the Indian Evidence Art has not 
been #iven. In regard to this the Court 
says vpage 52 of the judgment) "As these 
copies have all been forwarded to this 
Court by and through him (Resident), I, 
therefore, take it, that he has ceitified by 
his action in the matter that the manner in 
which the documents ara certified is the 
manner commonly in use in the Jaipur 
State for the certification of copies of 
judicial recor is. In any case th^ point is 
a trifling one as the ne^e*sary xseitificate 
imder s. 88 can always be obtained." We 
are unable to admit the correctness of this 
view. It appears that the copies were 
obtained by the plaintiff himself in the 
Jaipur fltate, and that he got them forward- 
ed by the State officials along with the 
evidence taken on commission. The mere 
fact thafc the Resident forwarded the 
papers in due course is not equivalent to 
the certificate referred to in s. fcG. Further, 
we are unable to agree that, when a certi- 
ficate is required by law, it can be dispens- 
ed with merely because it can be obtained 
at any time. We, therefore, propose to 
exclude this evidence from our considera- 
tion. 

[Their Lordships after 4ecidingon the rest 
of the evidence that the plaintiff was duly 
appointed chela by Man* Das proceeded:] 

Having regard to our decisioti on the 
qqestion of fact, it is unnecessary for us to 
decide whether the finding of the Jaipur 
Court in the succession certificate case 
operates as res judieafa. The lower Court 
said it did so operate under a. 13 of tht 
C, P. 0., but it appears co us to have lost 
sight of s. 25 of tho Succession Certificate 



1 92 1. 0. 1926J MUHAMMAD ABDUL GAFFUR V. MIHAMMAD SAMSUDDIN. 



139 



Act of 1889 which lays down that no 
decision under this Act upon any question 
of right between any parties shall be held 
to bar the trial of the same question in 
any suit between the same parties. 

The appeal fails and is dismissed with 
costs. 

z, K. Appeal dismissed. 



MADRAS HIGH COURT. 

CIVIL APPEAL No. 312 OP 1921. 

September 3, 1924. 

Present: Mr. Charles Gordon 

Spencer, Officiating Chief Justice, and 

Mr. Justice Srinivasa Aiyan gar. 

P. S. K. HAJI SAIT MUHAMMAD 

ABDUL GAFFUR ROWTHER AND 

ANOTHER DEFENDANTS Nos. 1 AND 2 

APPELLANTS 

versus 

K. E S. MUHAMMAD SAMSUDDIN 
ROWTHER AND OTHER DEPENDANTS 

NOS. 3 AND 4 AND LEGAL REPRESENTATIVE! 

OF PLAINTIFF (DECEASED) RESPONDENTS. 

Mesne profit, suit for Calculation of profits 
Burden of proof Mesne profits, nature of Civil Pro- 
cedure Code (Act V of 1908), s 2. 

The onus of proving what profits might, with due 
diligence, have been received in any year lies upon 
the party claiming mesne profits, but the onus of prov- 
ing what profits the person in wrongful possession 
actually received lies upon the person in possession, 
[p. 139, col. 2.] 

Ramakka v. Nagesam, 92 Ind Cas. 133; 47 M. 800; 
48 M. L. J. 89, (1925) A. I. R. (M ) 145, relied on. 

The best evidence of the profits derivable from the 
cultivation of a particular field in any given year is 
the evidence as to the actual yield m that year minus 
the cost of cultivation. But such evidence, in order to 
be useful, must be exact, and it is always open to the 
party out of possession to falsify the accounts as to 
the number of measures of grain gathered at the har- 
vest or the price prevailing when they were sold or 
the cost of cultivation, He may also adduce evidence 
to prove that the occupant was not diligent and might 
have got greater profits by proper diligence, [ibid ] 

In the absence of evidence as to actual profits, the 
next best evidence is evidence as to possible profits, of 
which evidence as to yield of ' '' " . lands 

in the year in dispute is an exa A u . J 

The yield of the suit lands in other years is not 
such a good guide as evidence as the yield of neigh- 
bouring lands of similar quality in the year in dispute 
would be. [p. 139, col. 2; p. 140, col. 1.] 

Mesne profits are in the nature of damages which 
the Court may mould according to the justice of the 
case, [p, 141, col. 1.] 

Grisn Chunder Lahiri v. Shaahi Shikhareawar 
27 0. 951 at p. 967; 27 I. A. 110; 4 0. W, N. 631; 10 
L. J. 356; 2 Bom. L. R. 709; 7 Sar. P. 0. J, 687; 
Pec. (N, s.) 622 (P, C.), relied on. 



Where in a suit for mesne profits, the story of the 
defendant that he suffered a net loss is incredible or 
the loss is due to lack of proper diligence, but the 
plaintiff fails to produce any evidence himself as to 
the actual profits, or the profits which might have been 
received by the defendant with due diligence, the 
suit must be dismissed, [p. 141, cols. 1 & 2.] 

Appeal against the decree of the Court of 
the Subordinate Judge, Tuticorin, in E. P. 
No. 722 of 1920 in 0. 8. No. 70 of 1916. 

Mr. C. V. Anantakrishna Aiyar, for the 
Appellants. 

Mr. K . Rajah Aiyar, for the Respondents. 
JUDGMENT. 

Spencer, Offg. C. J. The onus of 
proving what profits might, with due dili- 
gence, have been received in any year lies 
upon the party claiming mesne profits, 
but the onus of proving what profits the 
person in wrongful possession actually 
received lies upon the person in possession. 
Vide, Ramakka v. Nagesam (1). The best 
evidence of the profits derivable from the 
cultivation of a particular field in any given 
year is the evidence as to the actual yield in 
that year minus the cost of cultivation. But 
such evidence in order to be useful, must 
be exact, and it is always open to the party 
out of possession to falsify the accounts as 
to the number of measures of grain gather- 
ed at the harvest or the price prevailing 
when they were sold or the cost of cultiva- 
tion. He may also adduce evidence to prove 
that the occupant was not diligent and 
might have got greater profits by proper 
diligence. In the absence of evidence as 
to actual profits, the next best evidence is 
evidence as to possible profits, of which 
evidence as to yield of similar adjoining 
lands in the year in dispute is an example. 
In the present case the petitioners did not 
prove that any particular items of the de- 
fendants declared accounts of the yield of 
lands kept under direct cultivation were 
incorrect, bub they relied on the circum- 
stancr that for nine seasons there had been 
a net loss upon these lands as itself so 
highly improbable as to warrant the re- 
jection of all the defendants* accounts on 
the ground that no man in his senses 
would go on cultivating the same land year 
after year, at a loss, although, every one is 
liable to losses in particular bad seasons. 
The yield of the suit lands in other years, 
which the Subordinate Judge has adopted 
as the yield for the years in dispute, is 
not such a good guide as evidence as to 

' (1) 92 Ind. Ca8. 133; 47 M, 800; 48 M. L, J. 89; (1925) 
A.I.R.(M.) 145, 



140 



MUHAMMAD ABDUL GAFFUR V, MOHAMMAD 3AMSUDDIN. 



the yield of neighbouring lands of similar 
quality in these years would be, and is 
open to the objection that as regards the 
lands under lease, which are not kept 
separate, the leases are better evidence of 
the profits. 

The plaintiffs failed to produce such 
evidence. The only course for the Court 
to adopt under these circumstances was to 
disallow mesne profits upon the lands under 
direct cultivation on account of the absence 
of any evidence as to what they might 
have yielded and the incredibility of the 
defendants 1 story that they did not actualy 
yield any profit at all and to award mesne 
profits upon the leased lands only. 

I, therefore, agree in the order proposed 
to be made in my learned brother's judg- 
ment. 

Srinivasa lyengar, J The only 
question that arises in this appeal relates to 
the mode of ascertainment of mesne profits. 
The suit is one for partition instituted by 
the daughter now dead and represented 
by her legal representatives of a deceased 
Mahomedan Against her brothers and 
others for her share in their father's estate 
and for mesne profits. 

The proceedings from which this appeal 
has been preferred relate to the mesne 
profits of the agricultural lands from the 
date of the plaint. A Commissioner was 
appointed to take evidence and report on 
the amount of mesne profits and he, in his 
report, fixed the sum of Rs. 3,561-14-6 in- 
clusive of interest as the amount of mesne 
profit payable by defendants Nos. I and 2 
to the plaintiff's representatives. On ob- 
jection taken to the Commissioner's report 
by both the parties, the matter came up 
before the Subordinate Judge of Tuticorin 
who awarded to the plaintiff's representa- 
tives the sum of Rs. 5,033-1-6 and interest 
thereon. Defendants Nos. 1 and 2, who 
have been found liable for this latter 
amount, have preferred this appeal. 

At the enquiry before the Commissioner 
the plaintiff adduced no evidence what- 
ever. The defendants, however, produced 
several account books and also examined a 
number of witnesses. The learned Sub- 
ordinate Judge has rejected entirely the 
evidence of these account books on the 
ground that in his opinion they had been 
specially fabricated by the defendants with 
a view to defeat and defraud the plaintiffs. 
The two circumstances that he relies on 
for coming to that conclusion are : firstly, 



[92 1. 0. 1926] 

that the defendants, at any rate, after the 
institution of the suit, knew that they 
would some day be held accountable for 
mesne profits and that they had, therefore, 
a strong motive for fabricating false ac- 
counts; and secondly, that the accounts 
of the khas or direct cultivation of certain 
lands by the defendants shows that such 
direct cultivation has, strangely enough, 
in almost every season during the account- 
ing period, resulted not in profit but con- 
siderable loss. This latter circumstance is 
undoubtedly calculated to raise a great 
deal of suspicion. But that alone even 
coupled as it may be with the existence 
of strong motive would not be sufficient 
to discredit the account books altogether. 
It must be observed that the plaintiffs have 
not challenged the accounts in any other 
manner or sought to show by an examina- 
tion of the accounts or Cross-examination 
of witnesses to bring out any aspects or 
characteristics of the account boo'ks on 
which it may be found that the account 
books are not genuine. The Subordinate 
Judge, after rejecting the account books 
entirely, practically brushed aside the 
whole of the Commissioner's report and 
proceeded to assess mesne profits himself 
not on the basis of any figures available 
for the period in question but on the basis 
of figures found for a previous period by a 
former Commissioner appointed in the suit. 

A considerable portion of the lands were 
lands let out to tenants even during the 
accounting period ; and the agreements 
executed by the tenants in respect of the 
lands so leased out have all been produced 
and filed. In fact, so far as the rents re- 
covered from these lands are concerned, 
both parties were clearly agreed that the 
plaintiff's representatives would be entitled 
to their proper share in the rents so realised. 
There was, therefore, no reason whatever for 
the Subordinate Judge to reject altogether 
the available figures in respect of the lands 
leased out. 

We are clearly of opinion that the plaint- 
iff's representatives would be entitled to 
their seventh share of the amounts found 
by the Commissioner as recovered from the 
tenants in respect of the lands leased out 
during the nine periods of cultivation in 
question. As this account has not been 
separately made up, the matter might 'have 
to be referred to the lower Court for the 
taking of such accounts if the parties here 
should be unable to agree in 



MtJHAMMAD AfcDtJL GAFFUfc V. MtTHAMMAD 



[92 I 0. 1926] 

As regards, however, the lands which have 
"been directly cultivated by the defandants 
during the^ period the net result of the 
cultivation in nearly all the periods has been 
shown to be considerable loss. The ques- 
tion arises in this connection, whether the 
claimant for mesne profits in such cases is 
entitled merely to a share of the actual pro- 
fits received or recovered by the person in 
possession, and, if not, what the true 
measure of mesne profits should be. The 
point to start from is that mesne profits are 
in the nature of compensation or damages. 
Their Lordships of the Judicial Committee 
have observed in the case of Grish Chunder 
Lahiri v. Shoshi Shikhareswar Roy (2) that 
mesne profits are in the nature of damages 
which the Court may mould according to 
the justice of the case. In the case of 
Midnapur Zamindary Co., Ltd. v. Kumar 
Naresh Narayan Roy (3) their Lordships 
of the Judicial Committee refer to mesne 
profits as compensation to the plaintiff for 
the exclusive use of the land by the other 
p&rty. The damages are for the wrongful 
withholding of possession or exclusion from 
possession of the party entitled thereto or 
found to be so. 

The definition of mesne profits in the 
C. P. C., s. 2, cl. 12, itself contains a clear 
indication as to what the true measure of 
mesne profits is. It lays down that "mesne 
profits" of property means those profits 
which the person in wrongful possession of 
such property actually received or might 
with ordinary diligence have received there- 
from ; that is to say, if, in respect of any 
particular property, the Court should find 
that ^profits received or recovered by the 
party in possession do not amount to what 
with ordinary diligence he might have re- 
ceived from the property, then the true 
measure is what would have been so receiv- 
ed with due diligence, or, in other \\ords, 
what the party in possession actually re- 
ceives or recovers is the proper measure 
except in cases where it is or can be shown 
that what is so received or recovered falls 
below what would have been so recoverd or 
received with due diligence. 

As it is conceivable that in respect of cer- 

(2) 27 C. 951 at p. 967; 27 I. A. HO; 4 C. \V. N. 631; 
10 M. L. J. 356; 2 Bom. L. R. 709; 7 Sar. P. 0. J. 687; 
14 Ind. Dec. (N. s.) 622 (P. C ). 

(3) 80 Ind. Gas. 827; 47 M. L. J. 23; (1924) A. I R. 
(P. C.) 144; 26 Bom. L, R. 651; 51 C. 631; 35 M. L. T. 
169; (1924) M. W. N. 723; 29 G. W. N. 34; 20 L. W. 770; 
51 1. A. 293; L. R. 5 A. (P. C,) 137; 23 A, L, J, 76; 3 

at, L, R, 193; 6 P. L, T, 750, ' 



141 



tain lands the party in possession might have 
cultivated with the diligence and with 
regard to others without such diligence, the 
question can be decided only with regard to 
each item of property. 

Applying these principles to the lands 
under the direct or khas cultivation of the 
defendants themselves, we find that, in all 
the nine seasons to which the accounting 
relates, the defendants are said to have not 
only not recovered any profits but suffered 
considerable loss, the expenses being alleg- 
ed to be far in excess of the yield. We 
cannot, therefore, treat this kind of dealing 
by the defendants with certain lands aa 
dealing with due diligence. The very facts 
clearly show that these lands have not been 
managed by the defendants with that 
amount of due diligence, which is indicated 
in the definition of mesne profits. It is clear 
that if the lands had been let out, they 
might have fetched, if not large rents as in 
the other cases, at least some low rent. 

We are, therefore, left to find out the 
mesne profits in respect of all the lands 
under the khas or direct cultivation of the 
defendants by determining what rent or 
income they would or could have fetched in 
those seasons if they had been let out by 
the defendants to strangers. It was in- 
cumbent on the plaintiffs to adduce some 
affirmative evidence with regard to the 
amounts for which these lands might have 
been reasonably let in the particular seasons 
or years by the defendants. See judg- 
ment in Ramakka v. Nagesana (I) in 
this Court not yet reported.* No such 
evidence whatever has been adduced. There 
is some evidence to the effect that all the 
lands that could be let were leased out by 
the defendants and that only the other lands 
were cultivated by them directly. There 
is, therefore, no material whatever from 
which the amount of mesne profits in 
respect of these lands could be ascertained. 
There is also no principle or warrant for 
burdening the plaintiff's representatives 
who were admittedly out of possession with 
any losses alleged to have been sustained by 
the defendants in the course of their khas or 
direct cultivation of lands which must have 
been carried on without due diligence. 

The best course, therefore, in these cir- 
cumstances would be to strike out from the 
account of mesne profits all the figures re- 
lating to the kh&$ or direct cultivation of 
some of the lands by the defendants them- 
'"~*Since reported iix W Ind, Gas, 133. [Ed.] 



142 



MAtWG PC TOKfi V. MAUK& PO Gtl* 



selves and take only the lands leased out 
to tenants to ascertain the share to which 
the plaintiff's representatives would be en- 
titled to therein. It seems to us that these 
figures could be easily worked out and agreed 
to by and between the parties themselves in 
this Court and in order to see whether they 
are in a position to do so, this case will be 
posted again for orders after the lapse of 
10 days. If the parties, however, are un- 
able to agree, the case will have to be sent 
back to the lower Court for the figures 
being worked out on that basis. 

As both parties have partially succeeded 
and partially failed, there will be no order 
as to the costs of this appeal and each party 
will pay and bear his or their own costs in 
this Court. 

v. N. v. Decree modified. 

N. H, 



RANGOON HIGH COURT. 

SECOND CIVIL APPEAL No. 52 OF 1925. 

June 2, 1925. 
Present: Mr. Justice Das. 

PC) TOKE APPELLANT 



'# versus 

MAUNG PO GYI RESPONDENT. 

Pmvinttal Insolntin/ Act (V of 1<J20), a t ?8 (2), 4? 
Ducftwge, refusal of Execution of decree- Leave 
of Court, whether necessary. 

Where' an Insolvency Court refuses the discharge 
of .an ^olvent under a 42 of the Provincial Insol- 
vency Act, the proceedings are terminated as far as 
the' Insolvency Court is concerned, and the insolvent is 
thereafter liable to be arrested in execution of any 
decree without the leave of the Court. 

Second appeal against a decree of the 
District Court, Bassein, in Civil Miscellane- 
ous Appeal No. 95 of 1924. 

Mr. Leong, for the Appellant. 

Mr. Ray, for the Respondent. 

JUDGMENT. In this case one Maung 
Po Gyi presented an application for ad- 
judication as an insolvent under the Pro- 
vincial Insolvency Act, and he was adjudicat- 
ed. His estate was vested in the hands 
of the Receiver; the Receiver declared 
a final dividend, and the estate was wound 
up as far as the Court was concerned. 
Maung Po Gyi then applied for his dis- 
charge, but his discharge was refused as 
his estate was not sufficient to pay eight 
annas in the rupee. One of his creditors, 
Maung Po Toke, then applied for his arrest 
in execution of the decree obtained by him 
against Maung Po Gyi, This application 



[92 1. 0. 1926] 

was resisted by Mating Po Gyi, on the 
ground that he was not liable to be arrested 
without the leave of the Court. 

Mr. Ray, who appears for the insolvent, 
argues that under s. 28 (2) of the Provincial 
Insolvency Act the creditor cannot com- 
mence any legal proceedings against the 
insolvent without the leave of the Court. 
He argues that an application for the arrest 
of an insolvent is "commcncinjr a legal 
proceeding against the insolvent," and that, 
as no leave of the Court had been obtain- 
ed before the application was made the 
application must be dismissed. Mr. Ray 
cited before me certain authorities to show 
that an application for the arrest of an in- 
solvent is ''commencing a legal proceeding 11 
but s. 26 (2) provides that nothing should 
be done against the property of the insolv- 
ent or against the insolvent without the 
leave of the Court during the pendency of 
the insolvency proceeding. 

The main question which has to be decid- 
ed now is whether the insolvency proceed- 
ing is still pending before any Court. 

I am of opinion that there is no proceed- 
ing pending before any Court now. As 
far as the Court was concerned the pro- 
ceedings terminated when the application 
of the insolvent for the discharge was refus- 
ed. There is nothing further to be done 
by the Court as far as the insolvent is con- 
cerned. 

Section 41 (2) of the Provincial Insolvency 
Act provides that the Court may refuse 
an absolute order of discharge; and s. 42 
provides that the Court shall refuse an 
absolute order of discharge on proof of 
certain facts mentioned in that section, one 
of the facts being that the insolvent's 
assets are not of value equal to eight annas 
in the rupee. 

The Court under the provisions of s. 42 
refused the discharge of the insolvent and as 
far as that Court was concerned, the proceed- 
ings had terminated. I am, therefore, of 
opinion that the insolvent is liable to be 
arrested in execution of any decree, and 
that the orders of the lower Court are 
wrong, 

I, therefore, set aside the orders of both the 
lower Courts, and direct that the matter be 
heard on its merits by the Court of first 
instance. The appellant will get his costs 
in all Courts, 
z. K. Order set aside. 



[82 1.0. 19*6] 

BOMBAY HIGH COURT, 

ORIGINAL CIVIL JURISDICTION APPEAL No. 57 

OF 1921. 

September 23, 1921. 
Present: Sir Norman Macleod, KT., Chief 

Justice, and Mr. Justice Shah. 

VALLABHDAS TULSID AS -DEFENDANT 

APPELLANT 

versus 

NAGARDAS JUTHABHAI PLAINTIFF 
RESPONDENT. 

Vendor and purchaser Knowledge of defective title 
Wilful default Breach of contract Damages. 

Where a vendor contracts to sell property to which 
he knows that his title is defective, and there is a 
breach of the contract on his part, the conduct of the 
vendor is equivalent to wilful default, and he is 
liable to pay damages according to the ordinary rule, 
i. e., the difference between the contract price and the 
market price of the property at the date of the breach, 
although there may be cases in which it may be found 
that there was an implied contract that in the event of 
the title proving to be defective without any default of 
the vendor, he should not be liable to pay damages 
according to the ordinary rule. [p. 143, cols. 1 & 2.] 

Appeal from the decision of Mr. Justice 
Kanga. 

Mr. Munshi, for the Appellant, 
Messrs. Coltman and Setalvad, for the 
Respondent. 

JUDGMENT. 

Macleod, C. J. This is an appeal 
from the decision of Mr. Justice Kanga. 
The suit filed by the plaintiff was for 
damages for the breach of a contract dated 
the 20th August 1920 whereby the defend- 
ant agreed to sell to the plaintiff and the 
plaintiff agreed to buy from the defendant 
certain immoveable property at Cadell Road 
for the sum of Rs. 35,000. The plaintiff 
paid Rs. 1,500 by way of earnest money, and 
according to the terms of the contract if in 
the title there should be any such thing 
as might require to be set right then the 
defendant was to set it right on his own 
account, and if he could not do that then 
he was to return the earnest money which 
the plaintiff had paid. When the title was 
investigated it was ascertained that the pro- 
perty was ancestral and that the defendant 
had two minor sons who had an interest 
therein. The plaintiff, therefore, required 
the defendant to obtain an order of the 
Court sanctioning the sale by the defendant 
on behalf of his minor sons. The defend- 
ant, however, made no endeavour to obtain 
such sanction. Accordingly, there was a 
breach of the contract. There can be no 
doubt that the defendant knew that the pro- 
perty was ancestral and that accordingly 



tfcLsiDAs v. tf AQABDAS JCTHABHA!. 



143 



his interest in the property was limited. 
It is, therefore, a case of a vendor contract- 
ing to sell property to which he knew that 
his title was defective; and the only ques- 
tion at issue is whether he should pay 
damages calculated according to the ordi- 
nary rule in the case of a breach of contract, 
or whether he is only bound to pay the 
purchaser's costs of the agreement and of 
the investigation of title. I do not wish to 
exclude the possibility of there being cases 
in which it may be found there was an 
implied contract that in the event of the 
title proving to be defective without any 
default of the vendor, he should not be 
liable to pay damages according to the 
ordinary rule. But in this case it seems to 
me that clearly the conduct of the plaintiff 
in agreeing to sell the property, in which 
he knew he had not a good title, is equi- 
valent to wilful default, and there is no 
occasion to reconsider what I said in Hasan 
Premjiv. Jerbai, [(1920) 0. 0. J. Appeal No. 
41 of 1920, decided by Macleod, C. J. and 
Shah, J. ? on the 17th December 1920] 
in the passage which has been quoted by 
the learned Judge. 

I think, therefore, that the decision of the 
Court below was right, and the appeal must 
be dismissed with costs. 

Shah, J, I agree. It seems to me that, 
on the admitted facts of this case, the deci- 
sion of the Trial Court is right. The de- 
fendant knew that the immoveable property, 
which he agreed to sell, was his ancestral 
property; and it is difficult to accept the 
suggestion made before us under the cir- 
cumstances of this case that he could not 
realise the limitations upon his power to 
alienate this property which was part of the 
ancestral property and in which his minor 
sons had a vested interest according to 
Hindu Law. The limitations upon his 
power to alienate ancestral immoveable 
property are by no means obscure; and I do 
not believe that the defendant was not 
awaa of them at the date of the agreement. 
When he was called upon to make good the 
title, he did not, and it is now conceded 
that he could not ask for the sanction of the 
Court for the sale on behalf of the minors 
on the ground of necessity or any other 
ground which would entitle him to convey 
the full title to the property so as to bind 
his minor sons. I do not see how he could 
be heard now to say that when he entered 
into this agreement he did not realise 
the limitations upon his power to sell 



144 



NATIONAL BAN& 0* 1NBIA V. LAKHPAT BAI. 



this property. la the case of a vendor 
who agrees to sell property which he knows 
he is not competent to sell except under 
certain circumstances he cannot take ad- 
vantage of a clause in the contract such as 
we have in the present case; nor can he 
urge with justice that he is not liable to 
pay damages on the footing of wilful 
default. On the facts it seems to me that 
this is clearly a case in which with full 
knowledge of the limitations on his power 
the defendant contracted to sell this pro- 
perty. It is right, therefore, that the 
damages should be assessed on the lines 
directed by the Trial Court, 
N. u. v Appeal dismissed. 



OUDH JUDICIAL COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS APPLICATION No. 239 

OF 1925. 
May 14, 1925. 

Present : Mr, Simpson, A. J. C. 

NATIONALBANK OF UPPER INDIA, 

LIMITED, LUCKNOW IN LIQUIDATION 

APPLICANT 

versus 
LAKHPAT RAI-OppoeiTR PARTY. 

Companies Act (VII of 1013), as. 207, 215Voluntaiy 
liquidation Decree obtained against Company, in 

' '. ' Vr - ' whether can be allowed to 
.''! ' , ity of. 

Section 215 of the Companie3 Act lays a duty upon 
the High Court to see that justice is done in casea of 
voluntary liquidation. 

Under s. 207 (1) of the Companies Act the assets of 
a Company which is being voluntarily wound up must 
be applied in satisfaction of its liabilities pari pasm. 
A person who has obtained a decree against such a 
Company, therefore, cannot be allowed to realise his 
decree by way of execution inasmuch as to permit him 
to do so would give him more than his share of the 
assets of the Company, 

Application under s. 215, Indian Com- 
panies Act, VII of 1913. 

Mr. N. C. Dictt y for the Applicant. 

Mr. Bhawani Shankar, for the Opposite 
Party. 

JUDGMENT, This is an application 
for the removal of an attachment. The 
attachment was made in execution of one 
decree, and the property attached is another 
decree. The applicants are Har Qobind 
Dayai and Seth Radha Kishan, the two 
liquidators of the National Bank of Upper 
India. The opposite party is one Lakhpat 
Rai, who was a depositor in the Bank. He 
tried to withdraw .his deposit, but the Bank 
refused, and on 9th April 1923 he filed a 



suit against the Bank and on 31st May 1923 
he obtained a decree for the sum of 
Rs, 1,362-10-0. By this time the Bank had 
gone into voluntary liquidation. That 
liquidation dates either from 6th May 1923, 
when one meeting was held, or more pro- 
bably from 30th May 1923, when the pro- 
ceedings of the first meeting were confirm- 
ed. In either case the decree was passed 
after the Bank had gone into liquidation, 
not that this point is of any importance. 
In execution of his decree Lakhpat Rai 
attached another decree. This was a decree 
for sale obtained by the Bank in a suit 
brought on the basis of a mortgage. It 
was dated 16th November 1923 and it was 
against one Ram Chandra. Lakhpat Rai 
attached this decree on 30th November 1923. 

The first step taken by the liquidators 
was to apply to the Court, which was 
executing Lakhpat Rai's decree, for stay of 
execution. That Court refused stay of 
execution by an order passed on 23rd March 
1925, on the ground that the proper course 
for the liquidators to take was to apply to 
this Court, under the provisions of the 
Indian Companies Act so the present 
application has been filed under s. 215. 

It is pointed out that under s. 207 (1) the 
assets of the Company have to be applied 
in satisfaction of its liabilities pari passu, 
and that to allow Lakhpat Rai to realize 
his decree in this fashion would be to give 
him more than his share of the assets of the 
Company. It is also pointed out that s. 215 
lays it upon this Court to see that justice is 
done in cases of voluntary liquidation. 

On behalf of Lakhpat Rai it is pointed 
out that the Court has no power to pass 
the order prayed for. For me the matter 
is concluded by the authority in the case of 
National Bank of Upper India v. GopalDas 
(1), similar powers were exercised by a 
Bench of this Court, and in the Single Judge 
case, Miscellaneous Application No. 238 
of 1923, A jit Prasad v. Chandra Bhal an 
application exactly on all fours with the 
preaeiic one was granted, I may add that 
I agree with my learned brothers that 
such orders ought to be passed by this 
Court. Order as prayed for with costs. 

z. K. Attachment removed. 

(1) 91 Ind. Cas. 1053; 28 0. 0. 197; (1925) A, I. R. (0 ) 
630. 



[92 I. 0. 1926] 



ABDULLAH V. EMPEROR. 



145 



ALLAHABAD HIGH COURT. 

CRIMINAL APPEAL No. 51 OF 1923. 

April 30, 1923. 

Present : Sir Grimwood Hears, KT., 

Chief Justice, and Mr, Justice Piggott. 

ABDULLAH AND OTHERS ACCUSED 

APPELLANTS 

lersus 
EMPEROR OPPOSITE PARTY. 

Criminal Procedure Code (Act V of IMS), ss. 190- A, 
239 Penal Code (Act XLV of ISM), ss 1SO-B, m, 
U9, 152, 302, 506 Conspiracy to obstruct Police and 
stop sale, of certain goods I r nlaivful assembly Rioting 
Murder committed in course of noting Respon- 
sibility of members of unlawful assembly Sentence 
Samt transaction Joint trial, liability of. 

A large crowd of men assembled at a village and 
agreed among themselves to proceed in a body to a 
certain Police {Station there to threaten and to obstruct 
the Sub-Inspector of Police- and tlie Policemen with 
'him in the discharge of their duty and then to pioceed 
to a certain bazaar and stop the sale of intoxicants, 
meat, fish, etc It was also agreed that if the Sub- 
Inspector of Police did not act in a certain mariner and 
offered resistance, he and the Policemen with him 
would be assaulted. The ciowd then pioceeded 
towards the Police Station and on arnval there started 
an altercation with the Sub-Inspector of Police. 
Their behaviour and attitude was such that if they 
had been called upon to dispense they would not have 
done so. During the course of the altercation the 
members of the crowd began to throw stones at the 
Police. The Police then iired, killing two men and 
wounding several others. The mob inflamed to fury 
then murdered the Police Inspector and several other 
Pohco and chaukidars Some of the members of the 
crowd were charged with offences under ss. 120-B and 
302 read with a. 149 of the Penal Code and were 
convicted of the latter offence at one trial 

Held> (1) that the immediate object of the crowd as 
it/ reached the Police Station being tu threaten md to 
obstruct the Police m the 1 , discliaigo of thpirduty.it 
was an object to commit an ofifeury punishable under 
s. 152 of the Penal Code winch was in itself sufficient 
to bring the matter within the purview of the third 
clans a of s 141 of the Code and that consequently the 
crowd formed an unlawful assembly when they started 
from the village ; [p. 160, col. 1 .] 

(2) that the agreement arrived at between the mem- 
bers of the crowd to stop the sale of intoxicants, meat, 
fish, etc , in the bazaar, under the circumstancas, was 
an ii^re.iincnt to commit an offence under s 506 of the 
Penal Code and that for this reason also the crowd wag 
an unlawful assembly within the meaning of s. Ill of 
the Code ; [p. 158, ool 2.J 

(3) that as soon as stones began to b? thrown at the 
Police by the members of the crowd at the Police 
Station the members of the unlawful assembly became 
guilty of rioting and that in view of what happened 
subsequently the charge under s 302 read with s. 140 
of the Penal Code was fully established as against 
every one of the accused persons who was proved by 
evidonos to have continued an active participant in 
the rioting after the moment when stones began to be 
thrown, unless it could ba inferred from credible evi- 
dence that a particular -accused person had separated 
himself from the rest before the offence of murder had 
been committed by any of them ; [p. 160, col. 2.] 

(4; that having regard to the fact that tho majority 

10 



of the accused were ignorant peasants trho had been 
duiwn into the affair by misrepresentation of facts and 
preposterous promises concerning the millennium of 
tiwaraj, the ai rival of which was to be forwarded by 
courage and lesolution on their part, those of them 
against whom specific acts such as would have 
resulted in their conviction on a charge of murder 
apart from the special provisions of s 149 of the Penal 
Code, were not proved, did not deserve the extreme 
penalty of death and should be sentenced to trans- 
portation foi life only ; [p. 162, col. 1.] 

(') that the charge against the accused being that 
the events which occurred at the Police Station follow- 
ed upon the alleged criminal conspiracy arrived at 
between the accused at the village and were so con- 
nected therewith, not merely by sequence of time but 
by the link of causation, as to make the conspiracy 
at the village and the subsequent assault on the Police- 
men at the Police kStation parts of the same transac- 
tion, within the meaning of that expression in s. 239 
of the Cr. I'. C , the joint trial of the accused was 
perfectly justified ; [p. H6, ool. 1 ] 

(6> that in order to decide whether the joint trial of 
the accused was or was not legal the Judge had to 
look to the case for the prosecution as set forth in the 
charges themselves and that it was not necessary for 
him to consider what the position would be if he 
eventually cime to the conclusion either that no 
offence punishable under s 120-B was committed by 
any of the accused or that if any offence was so com- 
mitted it was one excluded from his cognizance by 
s. UW-A of the Cr P. C [p. 147, col. l.J 

Whatever may be said in defence of peaceful picket- 
ting when undertaken m the market of a large town 
by individuals or by small groups of earnest and 
enthusiastic men or women, has no application what- 
ever to the flooding of a small bazaar by a body of 
men whose mere presence there would put a stop to 
all business which could only be carried on with their 
consent and with their active assistance, [p. 158, co! 4 

in every case of a conviction on a charge of murder 
the law regards the sentence of death as the normal 
and the appropriate sentence. Where the Court 
sees lit to pas the lesser sentence of transportation, 
for life it must record its reasons for so doing, [p. 161, 
col. 2.J 

Criminal appeal from an order of the 
Special Sessions Judge, Gorakhpur. 

FACTS. In this case 225 accused were 
jointly put up for trial on various chargea 
for an assault on the Police force of Chaura 
Police Station in the Gorakhpur District, 
resulting in the murder of 23 Police and 
chaukidars, the plundering of property 
belonging to the said officials and to 
Government, the destruction by fire of the 
Police Station buildings, and the causing of 
hurt to various Police and chaukidars. 

Messrs. M. M. Malaviya, K. N. Malaviya^ 
Sanyal, D. N. Malaviya, K. C. Shrivastavd 
and A. P. Dube, for the Appellants. 

The Government Advocate and Mr. Kadri t 
R. R M for the Grown. 

JUDGMENT, [Their Lordships after 
referring to the incident and commending 
the bravery of the Police and the admirably 



146 



ABDULLAH V t 



way in which the lower Court and Counsel 
had handled the case, proceeded]: 

The charges against all the accused were 
six in number. There was a seventh 
charge affecting twenty-six only out of the 
entire number and an^eighth charge affect- 
ing the same twenty-six and twelve 
others in addition. These charges are set 
forth in detail in the opening pages of the 
judgment under appeal and we do not 
propose to recapitulate them. They admit, 
however, of a certain classification. We 
have already spoken of the crowd which 
attacked the Police as an assembly of persons 
moving in a certain formation and animat- 
ed by a definite purpose. It is an essential 
part of the case for the prosecution that the 
nucleus of this crowd consisted of a body 
of perhaps 1,000, perhaps 1,500 persons, 
which set forth from the little village of 
Dumri Khurd, situated some two miles or 
rather less from Chaura Police Station. It 
is alleged as against all the accused persons 
that they formed part of this original assemb- 
ly at the village of Dumri and that before 
their departure from that place, they had 
entered into an _?:<< n\**i\ amongst them- 
selves to do certain illegal acts of such a 
nature as to render them liable to punish- 
ment under s. 120-B of the Indian Penal 
Code. This has been spoken of in 
argument as the "conspiracy charge 1 ' and 
we propose to refer to it hereafter under 
that designation. For the present, the point 
which we have to note is that it was an 
integral part of the case for the prosecution 
in the Court below that the events which 
occurred later in the day, in the neigh- 
bourhood of Chaura Police Station, fol- 
lowed upon this alleged criminal con- 
spiracy at Dumri Khurd in such a manner 
and were so connected therewith not merely 
by sequence of time, but by the link of 
causation as to make the conspiracy at 
Dumri and the subsequent assault on the 
Policemen at Chaura parts of the same 
transaction, within the meaning of that ex- 
pression in s. 239 of the Cr. P. C. 

The next five charges, Nos. 2, 3, 4, 5 and 
6, relate to what took place on the after- 
noon of the 4th of February 1922, at 
Chaura Police Station and in its immediate 
neighbourhood. They may be described as 
different presentations of one and the 
same charge in lesser or in more aggravat- 
ed forms. They start with the second charge, 
which simply alleges as against all the 
Accused persons that they were members 



[92 1. C. 1926] 

of an unlawful assembly, within the mean- 
ing of the definition ins. 141 of the Indian 
Penal Code, at the time when force or 
violence was used by members of the said 
assembly, in prosecution of the common 
objects thereof. This charge is, therefore, 
laid under s. 147, Indian Penal Code. It is 
further the case for the prosecution that the 
force or violence thus used extended to the 
murder of twenty-three Police and chauki- 
dars, the plundering of property belonging 
to the said officials and to Government, the 
destruction by fire of the Police Station 
buildings and the voluntary causing of hurt 
to various Police and ckaukidars. We have, 
therefore, charges drawn up under ss. 302, 
395, 436 and 332, Indian Penal Code, read 
in each case with s. 149 of the same Code. 

The seventh and eighth charges, which 
affect some of the accused persons only, may 
be grouped together. They deal with the 
damage inflicted on the Railway line and 
on the telegraph wires and are framed 
respectively under s. 126 of the Railways 
Act IX of 1890 and under s. 25 of the Indian 
Telegraph Act No. XIII of 1885. - 

There is, as a matter of fact, one further 
charge of such slight importance that it 
had been almost overlooked, It affects a 
single one of the accused, the appellant 
Sikhari, and is framed under s. 412, Indian 
Penal Code. In substance it refers back 
to the charge of dacoity under s. 395/149, 
Indian Penal Code, in which Sikhari was 
already involved, and alleges against him, 
in the alternative, that, if he was not actual- 
ly concerned in the said dacoity, he was at 
any rate subsequently found in possession 
of property which had been stolen in the 
course of the same. The charge is somewhat 
loosely worded and does not allege against 
Sikhari the essential point that he knew that 
the possession of the property in question 
bid been transferred by the commission 
of dacoity, but this is not a matter upon 
which we find it necessary to insist. 

Now the case for the appellants is that 
no offence of criminal conspiracy was com- 
mitted by any persons at Dumri Khurd on 
the morning of the 4th of February 1922 ; 
or in the alternative that, if there was such 
conspiracy, it was not one in respect of 
which a prosecution could be instituted 
without an order in writing by the Local 
Government in view of the provisions of 
section 1%-A of the Indian Penal Code. To 
this contention we shall have to revert later, 
The point immediately before us is that. 



[92 1. 0, 1926] 



. ABDULLAH V. BMPfiROR. 



147 



whatever offence may or may not have been 
committed atDumri Khurd on the forenoon 
of the 4th of February 1922, it was not one 
BO connected with the offences committed 
at Chaura later in the same day that it 
could fairly be regarded aa "committed in 
the same transaction" within the meaning 
of s. 239 of the Or. P. 0. Upon this plea 
the appellants base the further contention 
that there has been a misjoinder of charges, 
sufficient to invalidate the entire trial in 
the Court below. We think we do no in- 
justice to Pandit Madan Mohan Malaviya, 
the very able Counsel who argued this part 
of the case on behalf of the appellants, when 
we say that it is not our impression that 
he seriously pressed this argument to the 
logical conclusion that, if we found it cor- 
rect, we should have no option but to order 
a re-trial of the entire case. He is certainly 
not to be blamed if he hesitated to face the 
possible consequences of such a contention, 
were it to prevail with the Court. Our 
own view of the question has been already 
indicated by the expressions we have used 
in setting forth the charges, but we should 
perhaps amplify it. When the learned 
Sessions Judge entered upon the trial of 
this case, and was faced with the question 
whether the provisions of s. 239, Cr. P. C., 
did or did not authorise him, not merely 
to try the 225 accused persons before him 
at one and the same trial, but to try them 
on each and all of the charges set forth 
against them under the order of the Com- 
mitting Magistrate, he could not possibly 
know what conclusion he would arrive at 
after hearing the whole of the evidence. He 
had to look to the case for the prosecution 
as set forth in the charges themselves. He 
was, therefore, for the reasons which we 
have already indicated, warranted by law 
in entering ' upon this trial of the 225 
accused on the charges as framed. The 
convictions which he has recorded are 
warranted by the conclusions at which he 
arrived on the evidence. As he had to 
regard merely the "charges," it was not 
necessary for him to consider what the posi- 
tion would be, if he had eventually come to 
the conclusion, either that no offence punish- 
able under s. 120 B, Indian Penal Code, was 
committed by any persons at Dumri Khurd 
oa the forenoon of 4th February 1922, or 
that if any offence was so committed it 
was one excluded from his cognizance by 
s. 196-A of fche Cr. P. C. In any event, the 
acquittal of all the accused paraoaa oa the 



conspiracy charge would have removed any 
possible objection to the validity of the 
trial. It is possible that in certain events 
the prosecution may have to suffer the 
penalty of having attempted to prove too 
much, by seeing a verdict of acquittal re- 
corded which might otherwise have been 
avoided. 

We do not feel that we are greatly con- 
cerned at this stage to discuss the form of 
the various charges, so long as we are 
satisfied that there has been no such mis- 
joinder of charges as to force upon us the 
duty of vindicating the law by quashing all 
the convictions upon this ground alone, and 
the consequent responsibility of considering 
the question of the ordering of a new trial 
upon such charge or charges as we might 
direct to be framed. On the case for the 
prosecution, the three groups of charges as 
we have set them forth were in respect ^ of 
offences committed in the same transaction 
within the meaning af s. 239, Cr. P. C. The 
final charge against the accused Sikhari 
alone, was really in the nature of an alter- 
native to one of the others. There was 
nothing illegal in the procedure adopted 
by the Trial Court. The conception we have 
formed of our duty in this matter is that 
we ought to concentrate our attention upon 
the one substantial charge in the case. There 
is not one of the appellants now before us 
who has been convicted upon any of the 
other charges, but has been also convicted 
of the offence of murder committed in the 
course of a riot and punishable under s. 302- 
149, Indian Penal Code. In respect of any 
of the appellants against whom this charge 
is not, in our opinion, satisfactorily proved^ 
but who is not entitled to a clear verdict 
of acquittal upon all the charges, the only 
offence, in our opinion, established is that 
of simple rioting punishable under s. 147 t 
Indian Penal Code. This offence is set 
forth in the second of the charges framed. 
As regards the conspiracy charge there are 
certain aspects of the case which we shall 
have to consider further, because of their 
bearing upon the important and essential 
question of the common object or objects of 
the unlawful assembly around Chaura Police 
Station referred to in the charge of murder. 
Otherwise we propose to concentrate our 
attention on the charge under s. 302/149 of 
the Indian Penal Code and to consider 
whether this is established against all or 
any of the appellants. The question of 
sentence can be completely and adequately 



148 



ABDULLAH V. EMPEROR, 



dealt with , under that single charge. So 
far as this Court is concerned no lesser 
sentence than that of transportation for life 
can lawfully be imposed on any accused 

person found guilty upon that charge. 
******* 

On the occasion of the Wednesday market 
the 1st of February 1922 a body of 
vplunteers, thirty to forty in number, moved 
upon Mundera and halted outside the 
village in the morning, waiting to com- 
inence operations as soon as the bazaar 
was fairly under way. The shop-keepers and 
the agents of the substantial land-owner of 
the village were on the alert. The latter 
came out and questioned the volunteers and 
told them bluntly that Babu Sant Bakhsh 
Singh would not allow them to interfere 
with his market. Reading a little between 
the lines of the evidence there can be no 
doubt that any attempt at actual coercion 
on the part of the volunteers would have 
been resisted by force. Moreover, it is 
clear that word had been sent to the 
Local Police Station, for Sub-Inspector Gup- 
teshar Singh marched into Mundera with 
a considerable body of Police and chauki- 
dars. Before his arrival, however, the 
volunteers had abandoned their enterprise. 
In face of the resolute attitude of the agents 
in charge of the bazaar, the volunteers 
felt themselves too few in number to 
attempt anything. They scattered and 
most of them returned to their homes. 

Two points, however, require to be noticed. 
The leaders of the volunteers, before they 
went off, distinctly told their interlocutors 
that they would return on the following 
market day (Saturday, the 4th of February) 
in such numbers as to enforce compliance 
with their demands. There is naturally 
some room for controversy as to the precise 
laiLLr.Mi;-' used; but that it was a threat, 
and was understood srs such, is fully proved, 
not only by the direct evidence, but 
tiy the fact that the landholder sent a 
trusted agent to Gorakhpur to appeal per- 
sonally to the District Magistrate for spe- 
cial Police protection for his market on 
the following Saturday. There can be no 
doubt whatever that such an appeal was 
made, and that it resulted in the arrival by 
train at Chauri Chaura Railway Station, at 
about 9 A. M , on the 4th of February of a 
small body of armed Police, nine muskets 
in all. 

The other circumstance, trifling in iteelf 
but of far reaching consequence, is that a 



[92 I. 0. 192#J 

few volunteers did enter the Mundera bazaar 
after the gathering had dispersed. There 
is no evidence worth speaking of that they 
actually did anything provocative, and 
we give accused generally the benefit of 
our belief that the volunteer enterprise had 
really been given up for the day and that 
the individuals who entered the bazaar 
did so on private business of their own. 
Unfortunately, their mere presence in the 
bazaar proved, under the circumstances, to 
be provocative. Sub-Inspector, Gupteshar 
Bingh reached Mundera under the impres- 
sion of an emergency calling for action on 
his part and he found the persons in 
charge of the bazaar excited and alarmed. 
There is some conflict of evidence as to 
the details of what followed. Indeed the one 
witness from whom one would have expect- 
ed a clear and co-herent account, Police 
Constable Siddiq (the one Constable who 
survived the massacre) is confused and 
self-contradictory. Taking the evidence 
as a whole, it seems clear to us that the 
Sub-Inspector was, at some time in the 
forenoon, at the office of the local land- 
holder, when certain volunteers were 
brought before him by Policemen who had 
found them in the bazaar. There were 
probably only two of them ; there may have 
been three or four, but one of them was 
certainly the accused Bh&gwan A/iir, whom 
we have spoken of the " drill-instructor/ 1 
The Sub-Inspector spoke roughly to the 
volunteers. His wrath was particularly 
directed against Bhagwan, whom he abused 
for drawing a pension from Government 
while taking an active part in an " unlawful 
association, 11 whose ostensible object waa 
the overthrow (no matter by what means) 
of the Government whose salt he was eating* 
There is an allegation that Bhagwan answer- 
ed insolently ; there is also a suggestion 
that the Sub-Inspector was in some way 
further inflamed against the man by one 
of the landholder's agents named Raghubar 
Dayal. What we are certain of is that the 
Sub-Inspector thoroughly lost his temper 
and struck the man ; we hold it proved 
that he gave him two cuts with a light 
cane, and he very probably also struck him 
with the open hand. 

Bhagwan and any volunteer or volunteers 
with him thereupon decamped and left 
Mundera altogether. No arrests were con- 
sidered necessary by the Sub-Inspector and 
no official report was ever made as to any 
collision on that date between the Police 



9$ I, 0. 1926] 



ABDULLAH V, EMPEROtt. 



149 



and volunteers. A curious fact is that we 
have it, not only from the evidence of 
Siddiq but from a statement made by the 
accused Bhagwan himself (Ex, 226), that 
the latter voluntarily presented himself at 
the Police Station the following morning 
(the 2nd of February) and had an explana- 
tion with Sub-Inspector Gupteshar Singh. 
As might be expected the accounts of this 
explanation differ somewhat ; but they 
agree to this extent, that explanations and 
apologies were tendered and received and 
that, as between the principal actors in 
this episode, the unfortunate incident seem- 
ed to have been brought to a conclusion 
satisfactory to both parties. 

There were nevertheless other interested 
parties who saw in the Sub-Inspector's loss 
of temper and his unjustifiable action a 
lever which might be worked with impres- 
sive results. For what immediately follow- 
ed we turn to the evidence of the approver 
Sikhari. We agree with the learned Ses- 
sions Judge that this man was endeavour- 
ing to earn his pardon by making a clean 
breast of all facts within his knowledge. 
We find moreover abundant corroboration 
of all matters in his evidence which 
strike us as essential. He tells us that on 
the evening of the thwarted enterprise 
at Mundera, that is on Wednesday, the 1st 
of February 1922, there was a small 
gathering at his house. Bhagvvan Ahir was 
present, and so also were ringleaders such 
as Nazar Ali, Lai Mohammad, Mahadeo, son 
of Thag, and llamrup (barhai). What 
Sikhari understood from the conversation 
which followed was that, notBhagwan only, 
but Mahadeo and Ramrup as well, had been 
beaten by Sub Inspector Gupteshar Singh. 
It was asserted that Babu Sant Bakhsh 
Singh (the owner of the Mundera bazaar) 
had caused them to be seized and brought 
to his office at Mundera, where, they were 
tmten by the Police. On this it was agreed 
that letters should be sent out to volunteer 
associations in neighbouring villages, with 
a view to their assembling in a body strong 
enough to warrant them in paying a visit 
to the Sub Inspector and " asking him why 
he had beaten our men/' Early on the 
following morning (Thursday, the 2nd of 
February 1922) the same persons came 
together again at Shikari's house and as 
the officials and ringleaders were illiterate, 
a body of eleven, the witness Nakched 
P. W. No. 125), was employed to transcribe 

ve copies of $ letter to be seut out as a 



summons to neighbouring volunteers, 
There was some discussion as to the actual 
place to be chosen for the proposed 
gathering. Someone seems to have observ- 
ed, shrewdly enougfi, that if this were fixed 
in the immediate neighbourhood of Chaura 
Police Station, the kSub-Inspector would 
break up the gathering by arresting 
the volunteers piecemeal as they arrived. 
Eventually a threshing floor at Dumri 
Khurd, in the immediate neighbour- 
hood of Sikhari's house, was fixed upon 
for the meeting place. It was determined 
that the volunteers should first march to 
Chaura Police Station to settle their differ- 
ences with Sub-Inspector Gupteshai Singh 
and thence proceed northwards to the 
Mundera bazaar in order to impose their 
will on the re-calcitrant shop-keepers of 
that place. There would thus be a long 
day's work before them, which could scarce- 
ly be undertaken fasting. Arrangements 
were, therefore, made for the collection of 
supplies in the shape of raw sugar which 
could be distributed to those attending the 
meeting. We have independent evidence 
that this was actually done. The five letters 
actually issued were to serve as summonses 
for five hundred to seven hundred and 
fity men ; but we note with interest that 
Sikhari says they were confident from the 
outset that more than this number would 
assemble once the newa got abroad. They 
expected a gathering of between two and 
three thousand men. 

The boy Nakched was perhaps a little 
confused under the stress of a severe cross- 
examination; but in the main he has told a 
consistent story, and we have no doubt he 
was trying to tell the truth to the best of 
his recollection. The account which he 
gave to the Investigating Police on the 16th 
of February 1922 (vide Ex. 13s) of the 
contents of the letters he was required to 
write was given while his memory was still 
fresh. As a summary of the essentials of the 
message it is in complete accordance with, 
the evidence subsequently given by the 
witness and we are prepared to accept it as 
an accurate summary. It runs as follows: 

"The Sub-Inspector of Chaura seeks out 
and beats the volunteers; therefore bring all 
your volunteers to Dumri. We will go and 
enquire from the Sub-Inspector why he 
makes a prac f ice of beating the volunteers; 
if he wants to send us to jailor to arrest us 
he may do so with all of us/' 

The meaning of this last pharse is obvious 



150 



ABDULLAH V. EMPEROR. 



enough: the volunteers were to assemble in 
such numbers as to make it palpably 
preposterous for the Sub-Inspector to at- 
tempt to arrest all of them. It was suggest- 
ed in argument that we ought to see in 
these words a declaration beforehand, on the 
part of the leaders of the volunteers, that 
one and all of them would abide faithfully 
by their pledge to absolute non-violence 
.submitting meekly to arrest or to any other 
action which the Police might taken within 
the limits of their lawful authority. We are 
impressed rather with the ironic turn of the 
phrase and its dangerous implications. The 
volunteers had only to assemble in suffici- 
ent numbers, and to be resolute enough in 
their determination that nothing should 
be done to any one of them which was not 
done to the whole body and they impose 
their own will; the arresting of even a couple 
of thousand men was a known impossibility. 

In his evidence at the Sessions trial Nak> 
ched attempts a somewhat fuller statement. 
As we read his evidence, he purports to give 
from memory a complete transcript of the 
letters. In this version we find the pro- 
vocative statement that the Sub-Inspector 
is seeking out the volunteers in order to 
beat them. The closing phrase appears in 
a confused form, with a reference both to 
beating and to imprisonment. The essential 
point remains the same: there was to be 
no beating of individuals, no arresting of 
individuals. In this version, however, there 
is a reference to a further object for the as- 
sembly; they were to go on to Mundera and 
stop the sale of fish and of meat. 

We do not think it would help the de- 
fence if we were to insist on this fuller 
account of the contents of the letters as it 
appears at page 543 of our printed record 
and we are a little sceptical as to the capa- 
city of this boy of eleven to re-produce 
the entire contents from memory. We 
think it safer to stand by the summary of 
essentials which he gave while his memory 
was comparatively fresh. The volunteers 
were summoned to Dumri Khurd on the 
strength of a preposterously exaggerated 
account of the assault committed by the 
Sub -Inspector on the accused Bhagwan ; 
the immediate object of the assembly was 
that they should march in an organized 
body to Chaura Police Station and ask the 
Sub-Inspector what he meant by it. The 
meeting was fixed for Saturday mornin^ 
the 4th of February 1922. 

IE the interval, further action was taken 



[92 I, 0. 1926] 

about which Sikhari apparently knows little 
or nothing, but as to which there is plenty 
of evidence. The accused Lai Muhammad 
sent in a report to the District head-quar- 
ters of the Khilafat Committee at Gorakh- 
pur. The evidence on this point consists 
partly of documents seized by the Police, 
when they raided the Khilafat Office on 
the 5th of February, and partly of the evi- 
dence of various members of the Executive 
Committee of the Khilafat at Gorakhpur, 
whom the prosecution put into the witness- 
box one after another, in the hope of getting 
at the whole truth concerning this import- 
ant aspect of the case. We do not feel that 
any very substantial measure of success 
has been attained. On one matter of detail 
there is a distinct conflict of testimony, 
Maulvi Subhanullah (P. W. No. 134j, seems 
positive that Lai Muhammad either brought 
his written report to Gorakhpur himself, 
or at any rate followed it up by a personal 
visit. The Secretary of the Khilafat Com- 
mittee, Muhammad Sulaiman Adhami (P. 
W. No. 170), does not think ^ that Lai 
Muhammad came to Gorakhpur in person, 
and is positive that Maulvi Subhanullah is 
making a mistake if he says (as he appa- 
rently does) that Lai Muhammad was sent 
from that gentleman's house to the office 
of the Khilafat Committee with his letter, 
or written report in his hand. There is a 
conflict of evidence also as to whether 
the paper, Ex. 95, is this report in origin- 
al ; indeed we are in some little doubt as 
to whether Lai Muhammad or any other 
volunteer had the capacity to draft such a 
document. We are beyond all question 
dealing with the testimony of reluctant 
witnesses, who were as economical of the 
truth as they dared to be. Certain facts 
are, however, fully established, Lai Muham- 
mad did cause to be conveyed to the office 
of the Khilafat Committee a letter or report 
of which Ex 95 is at any rate a correct 
transcript. This report was sent) in by 
hand, so that the information it conveyed 
could be, and undoubtedly was, supple- 
mented by oral communication with the 
person or persons who carried it. The 
communication was one which called for 
an immediate answer : if any written 
answer was returned it has disappeared, 
nor can any trace of it be discovered in 
the correspondence registers of the Gorakh- 
pur Khilafat Committee. Some sort of 
answer, oral or written, or both, was un- 
questionably returned. 



ABDULLAH fc, BMPBKOR. 



[92 L 0. 1928] 

The letter, Ex. 95, is to the effect that 
two volunteers, while peacefully engaged 
about their own marketing (the name of 
the bazaar is, not given), had been seized 
and severely beaten by the officer-in-charge 
of the Local Police Station. " We, therefore, 
report this matter to your worships," the 
letter concludes, " in order that you may 
come and investigate the matter. It is 
because of your worships that we (ham-log, 
i. e., the local volunteers) have not com- 
mitted any offence of any sort, for whatever 
action we take will be after inquiring from 
(you) our superiors. 1 ' A hook has been 
produced (Ex. 92) which purports to be the 
abstract register of correspondence received 
at the office of the Kliilafat Committee at 
Gorakhpur : this register the witnesses 
called from that Committee have (not with- 
out some apparent shuffling and hesitation) 
admitted to be genuine. In this register 
there is an entry under date the 2nd of 
February, 1922, of a letter received from 
Lai Muhammad, Secretary, Chauri Chaura, 
the recorded summary of which is to the 
effect that the Sub-Inspector in charge of 
Chaufa Police Station has severely beaten 
two volunteers, and the "people of that 
place " were ready to assault the Police ia 
return, " but had been with difficulty re- 
strained." It need scarcely be pointed out 
that this is not an accurate summary of 
Ex. 95. There are various points about 
the appearance of Ex. 92 calculated to sug- 
gest a doubt whether this is really the 
correspondence register, as kept up in the 
regular course of business. No abstract 
register of correspondence issued from the 
Gorakhpur Khilafat Office is forthcoming; 
and in face of the description of the book 
Ex. 92 in its own heading we are not 
prepared to accept the belated assertion of 
Niaz Ahmad Arif (P. W. No. 172) that this 
Exhibit is in fact the only register main- 
tained at that office for correspondence re- 
ceived and correspondence issued. 

In considering the inference to be drawn 
from this peculiar state of the evidence we 
bear in mind the fact that no official or 
member of the Executive Committee of the 
Khilafat at Gorakhpur is now on his trial 
before us ; but we are very definitely caUed 
upon to form an opinion as to the obje&ts 
with which the National Volunteers assem- 
bled at Durnri Khurd on the morning of 
4th of February and aa to the resolutions 
come to at that gathering before the meet- 
ing proceeded to take action in pursuance 



151 



of the same. Looking at the matter from 
this point of view, we feel bound to re- 
cord our opinion that the whole truth has 
not been disclosed in tho evidence produc- 
ed at this trial as to the communications 
which passed between the Executive Com- 
mittee of the Khilafat at Gorakhpur and 
the local leaders of the National Volunteer 
associations in the neighbourhood of Chaura 
in the course of the 2nd and 3rd of Feb- 
ruary 1922. In particular, we do not believe 
that any written answer was ever returned 
by or on behalf of the said Executive 
Committee to the communication received 
from Lai Muhammad. We strongly sus- 
pect, to put ifc no higher, that the register 
of correspondence issued from that office 
has disappeared, not because of anything 
which it did contain but because of what 
it did not contain ; that is to say, be- 
cause no entry appeared therein of any 
written answer to Lai Muhammad's report. 
It follows that an oral answer was returned 
and that it was of .such a character that 
those responsible for it could not venture 
to reduce it to writing. Our suspicions on 
this point are strengthened by certain evi- 
dence, which will be noticed in clue course 
as to what took place at the meeting at 
Dumri Khurd. These considerations 
warrant us in putting upon Lai Muhaiir 
mad's letter the sinister interpretation of 
which it is undoubtedly susceptible. In 
substance and in effect this accused report- 
ed to his "office" at Gorakhpur that the 
local volunteers had been roused by the 
outrageous conduct of the Sub-Inspector 
of Chaura to such a state of indignation 
that, if the officials would only give the 
word, they were prepared to teach that 
officer, and the Police generally, a signal 
lesson : and requested that some one should 
be sent down to look into the matter. 

The reply to this communication was, 
as we believe and have already said, sent 
by word of mouth. The positive evidence 
as to its purport is to be found in the 
depositions of one or two "Khilafat " wit- 
nesses, who say that it was to the effect 
that the volunteers should be patient. If 
they were speaking the truth, and a written 
answer had been returned to this effect, 
we are confident that either the writing 
itself would be forthcoming, or reliable 
secondary evidence as to its purport. We 
are driven to form our opinion on this 
point from the evidence as to what actually 



152 



ABDULLAH 7). EMPEROR. 



took place on Saturday, the 4th of Feb- 
ruary. 

From early morning on that day pre- 
parations were made at Dumri Khurd for 
the expected gathering. The place chosen 
was a threshing floor in front of the house 
of the accused, Behari (P<m). The local 
volunteers arranged the ground, sacking 
being spread to provide seating accommo- 
dation for the central group of leaders. 
Some modest provision was made for refresh- 
ments by way of baskets containing raw 
sugar. Flowers were collected and made 
into garlands for the adornment of those 
whom the assembly might particularly 
desire to honour. From about seven iu the 
morning a steady stream of volunteers 
began to flow in. There is evidence scatter- 
ed about the record, in the depositions of 
witnesses from various villages within a 
radius of several miles from Dumri, which 
shows the manner in which these men had 
"been summoned by messages and mustered 
in little groups of half a dozen or so, 
before marching for the appointed rendez- 
vous. Harpal, the village watchman of 
Dumri (P. W. No. 34), had received instruc- 
tions beforehand. He watched the pro- 
ceedings until two or three hundred men 
were collected, ascertained from the general 
trend of the conversation that the intention 
was to march on the Mundera bazaar and 
then slipped away to report the matter at 
Chaura Police Station. He says that volun- 
teers were still -iroamiisir in when he left 
Dumri Khurd. The approver Sikhari (P. 
W. No. 1), estimates that five or six hund- 
red men had come together by about 8 A.M. 
and that the numbers had increased to 
about one thousand when the meeting was 
brought to a close by the organized body 
of volunteers setting out for Chaura Police 
Station. So far as we have been able to 
check this estimate by -the evidence of 
other witnesses, it certainly does not appear 
excessive; we are satisfied that the men 
who set out from Dumri Khurd for Chaura 
Police Station were at least one thousand in 
number, and may well have been fifteen 
hundred. 

For the proceedings at this meeting, 
generally spoken of in the evidence and in 
the judgment as "the Dumri Sabha," we 
have before us a very considerable body of 
evidence. In the first place, we have the 
depositions of the two approvers, Shikari 
and Thakur. Next we find references to 
this matter in statements made under s, 164 



(92 I. 0, 1926] 

of the Or. P. C,, to a Magistrate, before 
the commencement of the enquiry pre- 
liminary to commitment, by a number of 
accused persons. The most important of 
these are the statements of Ramrup Barhai 
(Ex. 225;, IT.;- -.. Ahir (No. 226), Mahabir 
Saithwar v \ , -'i*-, and Raghubir Sunar 
(No. 251). In the third place, we find more 
or less detailed accounts of the affair from 
three witnesses, Jakat Narain Pande (P. W. 
No. 91), Bhawani Prasad Tewari (P. W. 
No. 25) and Shankar Dayal Rae (P. W. 
No. 102). It is quite beyond question that 
these three men were present at the occur- 
rences they profess to describe. The first 
strikes us as the sort of vain and irres- 
ponsible busy-body whom one so often 
finds thrusting himself to the front in con- 
nection with some political or social 
movement. The reception he met with on 
his first arrival at Dumri is enough to show 
that the peasantry of the neighbourhood 
not only respected his caste and were 
inclined to take him at his own valuation 
as a professor of religion but looked upon 
him as a person of some .authority in 
connection with the non-co-operation move- 
ment. We see no reason to believe that he 
was ever accepted as such by the organizers 
of the Congress or Khilafat movement in 
Gorakhpur itself ; nor on the other hand 
do we see any real ground for regarding 
him as a Police spy, though he was accused 
of being one by indignant volunteers before 
the meeting at Dumri was over. His own 
account of what took him to Dumri is that 
he hastened to the place as soon as he heard 
what was going on because he had formed 
a low opinion of the character of local 
volunteers and was persuaded (from what 
had happened at Mundera on the previous 
Wednesday) that they were going to get 
themselves into trouble by acting contrary 
to the true precepts of non-violence as. 
laid down by " Mahatmaji " Gandhi. Ha 
naturally tries to put his own conduct in; 
the most favourable light, and we are not 
greatly concerned to inquire how far honest 
zeal for what he thought right, mingled* 
with mere curiosity and a desire to gratify 
his self-importance in determining his con- 
duct He certainly did go to Dumri and- 
he ' does seem to have exerted himself, to* 
the best of his ability, to prevent mischief. 1 
Bhawani Prasad is a land-holder and 
village headman of Pokharbinda, a hamlet 
which had sent a contingent of volunteers > 
toDumri, He w^s on friendly terms with- 



t92 I. 0. 1826J 

Sub-Inspector, Gupteshar Singh and was 
sent for to the Police Station on the Satur- 
day morning. He was relieved to find the 
small contingent of armed Police arriving 
from Gorakhpur, and he went to Dumri, 
on the Sub-Inspector's suggestion, to see 
what was really happening and to warn 
the volunteers that they had better abandon 
whatever enterprise they were meditating, 
whether against Ohaura Police Station 
or Mundera bazaar, especially in view of 
this re-inforcement which the Police had 
received. Rae Shankar Dayal is a resident 
of the Ballia District who was making a 
living in Gorakhpur out of District Board 
contracts and a contract which he held in 
connection with the Mundera bazaar. It 
was his interest in this matter which took 
him to Dumri to see what the volunteers 
were really doing. He has played an 
ambiguous part in this trial and portions 
of his evidence have been severely com- 
mented on by the learned Sessions Judge. 
We are satisfied that he may be regarded 
as a witness distinctly friendly to the accus- 
ed persons. 

The effect of this evidence as a whole is 
to corroborate the account of the meeting 
at Dumri given by the approver Sikhari, 
at least iu its broad outlines, sufficiently 
to enable us to feel certain of its straight- 
forwardness and general accuracy. Of the 
present accused, the men who took the 
lead were Nazir Ali and Lai Muhammad ; 
also, in a lesser degree, Shyam Sunder and 
Abdulla alias Sukhi; with these must be 
placed Sikhari himself, a man of the name 
of Indarjit whom the Police had not been 
aole to arrest up to the time of the trial in 
the Court below and an ascetic with a pair 
of tongs, an article commonly carried by 
religious mendicants of a certain class. He 
is frequently referred to fn the evidence ; 
and was probably a mischief-maker from a 
distance, No one seems to know his name. 
Jagat Narayan Pande and Shankar Dayal 
were cordially received on their arrival, 
garlanded and permitted to address the 
meeting. The latter was apparently mis- 
taken for some emissary from head-quarters 
whom the volunteers were expecting, under 
the description of " the Ahrauli Babu." 
Both tried to persuade the gathering to 
break up and to abandon their expressed 
intention of proceeding in a body to Ohaura 
Police Station and Mundera bazaar. Jagat 
Narayan especially exerted himself in this 
sense, appealing to the precepts of "Gandhi- 



ABDULLAH V. EMPEROR. 



153 



ji " and to the fact that armed Police 
had reached Chaura. He was violently 
opposed by Nazar Ali, ako by Lai Muham- 
mad, Shyam Sundar and Abdulla alias 
Sukhi. He was told that he was no better 
than a Police spy, ridiculed, abused and 
finally turned out of the meeting \\ith 
contumely. Eventually Nazar Ali carried 
the entire meeting with him in a resolution 
that they were to march in a body, fiist 
to Chaura Police Station, to ask the Sub- 
Inspector why he had beaten two volun- 
teers, and thence to Mundera bazaar to 
stop the sale of intoxicants, of meat and of 
fish. These objects were to be pursued un- 
flinchingly and carried through in the 
teeth of any opposition that might be en- 
countered. No one was to start on the ex- 
pedition who was not prepared to venture 
his life on the hazard. When challenged 
to do so by Nazar Ali, all those present 
bound themselves by oaths to persevere 
to the end. Anyone who turned back after 
setting forth with the rest was to be con- 
sidered, if a Hindu, to have eaten cow's 
flesh, if a Musalman, the flesh of swine. 
What may be a coarse variant of the oath, 
but is more likely to be a description of 
any defaulter, is mentioned by Sikhari 
as particularly applicable to anyone "who 
should retreat from before the bullets at 
the thana" The assembly was a large 
one and it is easily conceivable that more 
than one form of oath was used. The 
coarser one, be it oath or description, was 
abhorrent in its terms and might well 
appeal more particularly to those elements 
in the crowd, drawn from the lowest 
strata of society, which are abundantly 
represented in the list of appellants before 
us. 

On all the points hitherto set forth the 
evidence as to the proceeding at this 
Dumri Sabha is clear, consistent and over- 
whelming. There remains, however, one 
detail which calls for separate consideration. 
When Sikhari made his first statement be- 
fore a Magistrate on the 16th of March 1922, 
he said, speaking of a late stage of the 
meeting "In the meantime two Muham- 
madans, one of whom was wearing spectacles, 
came there. I do not know where they 
lived. They took out a piece of paper and 
began to read it. Then they began to sing, 
la this song the names of Muhammad Ali 
and Shaukat Ali were uttered, again and 
again, and it was about their imprison- 
ment. After singing the song they went 



154 



ABDULLAH V. BMPER06. 



away to the west. Then we got up and pass- 
ing along the raised borders of the fields 
reached the road." Jn his evidence at the 
trial, after speaking of the ejection of Pandit 
Jagat Narayan from the meeting and the 
departure of Rai Shankar Dayal--it is 
curious to note that he ignores Bhawani 
Prasad altogether- Sikhari goes on to state 
"Two other men came, one wearing green 
glasses who was of my stature, but older, 
about 32, who from his words appeared to 
be a Musalman; the other was younger than 
I I cannot say whether he was a Hindu or 
a Musalman. The man with glasses began 
to read from a slip of paper singing 'we are 
going for two years each ' We understood 
going to jail. Then Nazar Ali stood and 
publicly administered an oath." 

On the 13th of March 1922, the accused 
Bhagwan Ahir made a statement before a 
Magistrate, which contains the following 
passage: "Then two Muhammadans wearing 
spectacles came there. They began to sing 
a song describing the deeds of Shaukat 
Ali and Muhammad Ali. On hearing the 
song all became angry and said, "Come, we 
will all go to the thana." 

Four days later the accused Mahabir, son 
of Lalsa Saithwar, in a statement similarly 
recorded, told the Magistrate: "Two Musal- 
mans came there. One of them was wear- 
ing spectacles and the other had a beard. 
They came there and began to sing. After 
this all the volunteers, who were about 
three thousand, got up and started from 
there crying out, Mahatma Gandhi ki jai" 

The accused Raghubir, son of Jaddu, is 
a sunar by caste a man of higher social 
position than the bulk of the accused. On 
the 4th of March 1922, he told a Magistrate 
as follows: "Lectures were delivered. 
There was a Babu who in his lecture said 
that we should not go either to Mundera 
bazaar nor to the Police Station. If we 
went in a body there would be a riot. But 
no one listened to him. A Miyan, whose 
name and residence I do not know, deliver- 
ed a lecture and asked his hearers whether 
they were ready to die. They replied that 
they were ready. Then all started from 
there." 

It would be quite possible for us on the 
evidence which we have already reviewed, 
to record our finding as to the nature of the 
agreement come to by the volunteers as- 
sembled at Dumri Khurd and whether that 
agreement did or did not amount to a 
criminal conspiracy. We think it better, 



[92 I. 0. 1926J 

however, to proceed with the narrative of 
events. The evidence as to what the volun- 
teers agreed amongst themselves to do can- 
not be altogether dissociated from the evi- 
dence of what they actually did. We shall 
have to consider, in connection with certain 
statements made by the approvers Shikari 
and Thakur, if their testimony is or is 
not borne out by the subsequent conduct 
of the volunteers. 

Up to a certain point there is no room 
for controversy as to the course of events. 
When the volunteers left the threshing-floor 
at Dumri, they made their way along the 
field boundaries to the broad unmetalled 
road which runs from Gorakhpur to Deoria, 
by going eastward along which they would 
come to the Ghaura Police Station, rather 
less than two miles distant. On this road 
the men were got into some sort of rough 
formation. The services of drill-instructor 
Bhagwan were requisitioned for this purpose. 
Flags which had been prepared beforehand 
were sent to the front and the crowd began to 
move under the guidance of their "officers," 
who halted them and moved them on again 
by the sound of whistles. They were in an 
excited mood, continually raising trium- 
phant cries and acclamations. As a point 
roughly about half way to Chaura they came 
toBhopa bazaar, where a road branches 
off to the left that is to say in a northerly 
direction, towards a Railway crossing, be- 
yond which it leads directly to Mundera 
bazaar. This was the route which the crowd 
would have followed if they had not resolv- 
ed to visit Chaura Police Station before 
going to Mundera. At this point they were 
met by the witness Awadhu Tewari a servant 
of Babu Sant Bakhsh Singh, the proprie- 
tor of the Mundera bazaar. The evidence 
of this witness as to what he saw at Bhopa 
corroborates Sikhari. The approver says 
that by that time the crowd had swollen to 
a total of 2,501) or 3,OUU men. Awadhu 
puts the number considerably higher, but 
is probably exaggerating. He says the 
crowd came towards him carrying flags and 
raising triumphant cries. The leaders ap- 
peared to him to be the accused Nazir Ali 
and Shyam Sunder and the approver 
Sikhari. He gives an interesting and 
obviously genuine account of his conversa- 
tion with them, when he endeavoured to 
persuade them to turn back or to disperse. 
Nazar Ali spoke with great insolence and 
remarked in an ironical tone that he was 
going on to the Police Station to get a beat* 



[92 I. 0. 1826J 

!ng. He raised his flag and the crowd 
moved on, still crying out "Victory". The 
witness hurried to the Police Station and 
told the Sub-Inspector what he had seen. In 
the meantime the crowd moved on as far 
as a building often referred to in the 'evi- 
dence as the factory of Lala Halwai. This 
brought them close to the Police Station 
enclosure which lies in an angle, where a 
short length of metalled road turns north- 
ward from the highway between Gorakhpur 
and Deoria and leads to a Railway crossing 
and the bazaar of Ohaura, beyond which it 
proceeds to Mundera bazaar. The Police 
Station enclosure extends practically from 
the Gorakhpur Deoria highway on the south 
to the Railway crossing and the line of the 
Railway on the north side. The entrance 
to the Police Station is on the east, that ia to 
say opening on to the short length of metal- 
led road leading northwards from the high- 
way to the level crossing. Opposite this 
entrance, and across the metalled road, were 
a few buildings, including the private 
quarters of the Sub-Inspector in charge of 
the Police Station. According to Sikhari 
the crowd was continuously increasing in 
numbers as they moved from Bliopa bazaar 
towards fhaura. We unhesitatingly accept 
his evidence as proving that when the crowd 
came to a halt beyond Lala Halwais factory 
it was over 3,000 strong. Sikhari says "they 
were in ranks " ' ; the road on either 
side." He adas : VV ueu we came to the 
factory we knew there was danger and that 
there was a guard with guns at the thana 
(Police Station). We were ready to sacrifice 
our lives We saw that the darogha(ihe Sub- 
Inspector in charge of the Police Station, 
?. e., Gupfceshar Singh) was standing with 
Police and chaukidars. We supposed he 
was standing there to beat us. We went 
on because we considered ourselves to be 
in * . numbers; and what could 

he uu iu u. Vv e ought perhaps to explain 
that the vernacular word used by the wit- 
ness, which had been translated "to beat/' 
is a woid of wide -teni lien MOO. meaning 
also "to strike" ande'.'.:i! "lo M!| " it would 
undoubtedly include striking with bullets 
or other missiles as well as the infliction of 
blows in hand-to-hand combat. 

To resume our narrative: at this point the 
witness Sardar Harcharan Singh came for- 
ward from the direction of the Police Sta- 
tion to meet the crowd. A conference took 
place between him and their leaders. He 
estimates the number of the crowd at three 



ABDULLAH V. EMPEROR, 



155 



to four thousand. Their leaders appeared 
to him to be Nazar Ali, Shyam Sunder, 
Sikhari and the unknown ascetic carrying 
a pair of tongs who has been referred to 
elsewhere. He found the crowd in a singular 
state of fierce excitement, He says their 
leaders addressed him in a tone which was 
anything but respectful. They told him 
plainly that they were resolved at all costs 
to go to the Chaura Police Station and thence 
through the Chaura bazaar, through the 
village of Bale, to Mundera bazaar. The 
witness persuaded them to wait while he 
went to speak with the Sub-Inspector. It 
must be remembered that the Police occupi- 
ed at this moment a position which was 
strategically sound. They were drawn up 
across the highway, the breadth of which 
would presumably be commanded by the 
muskets of the armed Police. These were 
the men on whom Sub-Inspector Gupteshar 
Singh would have to rely in the event of 
an encounter. The four or five men of the 
Civil Police whom he seems to have kept 
about him would scarcely count for any- 
thing as a fighting force. lie had with him 
also, so far as we can gather, 40 or 50 
chaukidars or village watchmen, being in 
part men whom he may have called in to 
the Police Station that morning in anticipa- 
tion of trouble, and in part men whose turn 
it was to go to the Police Station on that 
day to draw their pay. These men were 
efficiently enough armed for an encounter 
at close quarters with the brass-bound lathis 
of stout bamboo which formed part of their 
official equipment. They were, however, a 
mere collection of village watchmen, wholly 
unused to acting together in numbers. The 
records of dacoity cases in this Court afford 
abundant evidence of the slight reliance 
which can be placed upon an assemblage 
of village watchmen as a fighting force. 
On the other hand no one who examines 
this record can fail to realise something of 
the impression produced on the minds of 
those who saw the crowd at close quarters, 
not merely by their numbers but by the 
spirit which animated them. Bhawani 
Prasad after seeing them at Dumri advised 
the Sub-Inspector to bow his head to the 
storm and let the day go by. He evidently 
believed that successful opposition to the 
march of the volunteers was out of the 
question ; that it would be better to let 
them work their will, for that one day, in 
Mundera ba/.aar and to see what could be 
done subsequently ia the way of re-estab- 



156 ABDULLAH 

lishing order. Sardar Harcharan Singh was 
deeply perturbed. We do not think that 
anything in his conduct bears out the im- 
putations of treachery and double-dealing 
which have been cast upon him. He return- 
ed to the Sub-Inspector, after his interview 
with the leaders of the volunteers, with the 
conviction plainly on his mind that there 
was no stopping these men if they moved 
forward, as they were evidently determined 
to do. We take it that there was percepti- 
ble in the spirit of this crowd that sort of 
magnetic force which the ancient Greeks 
ascribed to supernatural influence, and 
which has often been noted as emanating 
from an army destined to be victorious in 
an impending encounter. Psychologically 
it has its basis in the recognition on the 
part of each member of the force that those 
around him are animated by the same reso- 
lution which he feels in himself : he knows 
that if he elects to go forward, he will not 
go forward alone. Sardar Harcharan Singh 
believed, that he could exercise sufficient 
influence over the crowd and its leaders to 
ensure their marching, peacefully and with- 
out disorder, past the Police Station, if they 
were allowed to proceed in this way towards 
their destination at Mundera bazaar. He 
apparently received some assurance to 
this effect from the leaders. He says that, 
in communicating his views to the Sub- 
Inspector, he suggested that it would be 
easier 4< to deal with the crowd" after they 
had passed the Police Station. 

If Sub-Inspector, Gupteshar Singh had 
followed resolutely the plain dictates of 
duty, if he had continued to bar the road 
against the advance of the crowd and had 
offered them a reasonable time in which to 
disperse, under threat of opening fire in the 
event of their refusal, his chances would 
have depended on the possible intimidating 
effect of two or three volleys delivered at 
close quarters into the crowd massed along 
highway and "over-flowing," as Shikari 
says, "the road on either side/' If the 
crowd broke in panic, the miscellaneous 
force of chaukidars might have been useful 
enough in completing their dispersal, and 
pjssibly in arresting their leaders. If the 
resolution of the crowd held firm, we very 
much doubt whether, with the force and 
with the weapons at his disposal, Sub- 
laapector Gupteshar Singh could have 
prevented the dispersal of his force by 
shaer weight of numbers, their isolation 
and subsequent massacre. 



t;. BMPBKOE. [92 I. C. 16] 

The matter was not put to the test. Thd 
unfortunate Sub-Inspector is not to be 
blamed, or at any rate to be severely blam- 
ed, if his resolution gave away. He had to 
consider, not only the chances of an actual 
conflict, but the subsequent justification of 
his own action against the flood of adverse 
criticism which would undoubtedly have 
been let loose upon him. He accepted the 
advice of Sardar Harcharan Singh, with- 
drew his force from across the highway 
and fell back within the Police enclosure. 
From that moment he and those with him 
were doomed. The crowd so far kept their 
express or implied compact with Sard ir, 
Harcharan Singh, that they moved in more 
or less orderly formation along the highway 
to the south of the Police Station and, 
turning to their left, began to file p*9t the 
thana gate towards the Railway crossing; 
and on beyond into the Chaura bazaar. 
From this point we have to deal Avith 
evidence about which there has been some 
controversy. We think it useless to enter 
upon a detailed analysis of all the items of 
evidence upon which our conclusions are 
founded. Certain matters of detail must 
remain in doubt ; but as to the main course 
of events we believe it possible to formulate 
conclusions quite sufficient for the deter- 
mination of all the issues set before us. 

It must be remembered that, when Nazar 
Ali and Lai Muhammad called the volun- 
teers together, they had not done so merely 
in order to carry out their previous threats 
against the vendors of intoxicants, of meat 
and of fish in the Mundera bazaar. They 
had got together their men on the under- 
standing that they were to go to Chaura 
Police Station and have it out 'with the 
Sub-Inspector about the matter of the 
beating of the volunteers. We know that 
highly exaggerated statements had been 
put about on thi^ subject. Accordingly, 
while numbers of the crowd were continu- 
ing on their way towards the Rail wav. cross- 
ing and Mundera bazaar, some of their 
leaders, with a considerable body of follow- 
ers, came to a halt in front of the open 
gate of the Police Station and demanded to 
see the Sub-Inspector. Matters about which 
there has been considerable controversy 
are the numbers of the men who thus came 
to a halt and the question whether, as the 
movement of the crowd continued, there 
was ever at any moment a perceptible 
interval of space between the group which 
was halted iu front of the Police Station and 



[92 L 0.1926] ABDULLAH 

the rest of the crowd. It cannot appear 
surprising to any one who endeavours to 
form a mental picture of the scene that 
ttye available evidence on question of 
this sort should be conflicting. We are 
prepared to believe that the number of 
those who definitely halted in front of the 
thana gate, to have it out with the Sub- 
Inspector, did not exceed three hundred. 
Events moved rapidly : a crowd of three to 
fdur thousand men cannot get along very 
fajst by a narrow street and over a Railway 
crossing; we very much doubt whether 
ttiere was at any moment a clear interval of 
smce between those who were still moving 
oifi northwards and those, who, whether of 
8<at purpose or out of mere curiosity, linger- 
ed! about the eastern front of the Police 
8 tation, The evidence satisfies us that the 
demand for an explanation in the matter of 
tide beating of a volunteer, or of volunteers, 
w^as made in insolent and over-bearing tones 
atid that Sub-Inspector, Gupteshar Singh 
tlhered to the policy which he had adopted 
y speaking the crowd fair. He told them 
ja.at the man whom he had beaten (the 
of reused Bhagwan) was not a brother of 
wiieirs; that he was a Government pension- 
t and might, therefore, fairly be regard- 
coij as subject to his (the Sub-Inspector's) 
Thuthority. There are statements here and 
iinere on the record which attribute to the 
racub-Inspector words and expressions of 
?etiore abject apology. Whatever he said, 
>has remarks were received by the crowd, 
reot merely with satisfaction, but with 
insolent and .mocking triumph. Numbers 
o.< witnesses depose to a coarse jest which 
p assed from mouth to mouth in the crowd, 
nb doubt with slight variations of form, 
ascribing abject terror to the Sub-Inspector 
personally, to the Police generally and 
even to that abstract entity referred to 
as "the Government." Along with this 
c&me a derisive clapping of hands, similar 
t<!> that which had driven Pandit Jagat 
I^arayan from the assembly at Dumri. 
Some of the crowd which had halted by 
the Police Station gate began to move 
northwards, but we are quite satisfied that 
the gateway was still beset by numbers of 
the crowd when the patience of the much 
tried Sub-Inspector gave way, The man 
is. dead, and we shall never know with 
certainty what was passing in his mind. 
We can well believe that he was roused to 
fi-Ager by the taunts of the crowd, their 
course jest aud their derisive hand-clapping. 



r. EMPEROR. 

It is quite conceivable, however, that it 
was precisely these taunts which brought 
home to him the disadvantages of the 
position into which he had allowed himself 
to drift. After all, the armed guard had 
been sent out, not to defend him personally, 
but in order that he might use it to pro- 
tect the licensed vendors and other shop- 
keepers of the Mundera bazaar against 
terrorism and mob violence. The organised 
crowd of volunteers was now moving steadily 
on towards Mundera, while the Sub- 
Inspector himself was practically blockaded 
inside his own Police Station by the 
crowd which still hung about the gateway 
If the volunteers achieved their threatened 
purpose in Mundera that day, and still 
more in the not improbable event of the 
baser elements of the crowd getting out of 
hand there and plundering shops or the like 
he would have to answer to his superiors 
for the remissness by which he had allowed 
these things to happen. He may well 
have felt, and we think that in all human 
probability he did feel, that the first and 
most urgent duty incumbent upon him at 
that moment was to recover his own free- 
dom of action by clearing the road immedi- 
ately in front of the Police Station. He 
ordered a number of chaukidars forward 
for this purpose. As might be expected 
the evidence ivsfanlinir the brief and 
confused scene which followed is somewhat 
conflicting. The crowd, undoubtedly, scat- 
tered before the advance of the chaukidars^ 
there are witnesses who speak of them as 
running in different directions. In the 
main, however, the natural tendency of the 
crowd would be to press northward towards 
the Railway crossing, that is in the direc- 
tion of their own re-inforcements. Hence 
we have some of the witnessess who speak 
of the chaukidars as driving the crowd to- 
wards the Railway crossing, which would in 
itself be a futile thing for the Police to 
have done. What precise degree of viol- 
ence was used by the chaukidars it is 
impossible to determine. Sardar Harcharan 
Singh, who was in as good a position to 
observe what happened as any other witness 
will not admit that the chaukidars actual- 
ly struck any one: he describes them as 
thumping the ends of their lathis on the 
ground, which is a well-known and fre- 
quently adopted method of breaking up 
or moving on, a crowd by threatening them 
with painful, but not serious, injury to 
their feet, There is no doubt a good deal 



158 



ABDULLAH v. EMPEROR. 



[92 1. 0. 1926] 



of evidence to the effect that some of the 
chaukidars "beat 11 some of the volunteers, 
and we are prepared to take it that blows 
were struck. What seems to us the one cru- 
cial fact which stands outin plain relief from 
the evidence is that the crowd generally, 
and more particularly the volunteers who 
constituted the back-bone of the crowd and 
the leaders of those volunteers, were pre- 
pared beforehand for just such aeon ringen- 
cy. As the cry was passed along that the 
chaukidars were beating the volunteers, 
whistles were sounded and, upon this pre- 
concerted signal, the whole crowd swung 
back upon the Police Station. The men 
spread themselves out along the Railway 
line, arming themselves with kankur and 
brick-bats from the ballast, which missiles 
were also carried down towards the eastern 
front of the Police Station. A steady hail 
of missiles began to overwhelm the scanty 
Police force, already disorganised and 
manoeuvred into an untenable position. 
The firing of the first volley in the air was 
met by aery that "Mahatmaji Gandhi" was 
working miraculously in favour of the volun- 
teers and was turning the bullets to water. 
We have plenty of evidence on this record 
as to the wide-spread belief in this gentle- 
man's miraculous powers. We have no 
doubt that such a cry was raised and that 
it put the finishing touch to the resolution 
of the mob. When the Police began to fire in 
earnest, and two of the rioters had been shot 
down and others wounded, the only result 
was to inflame this resolution into fury. 
What followed has been already told. 

In the light of these events we must 
now go back to the question, what was it 
that the volunteers assembled at Dumri 
agreed to do ? The case laid before us by 
the defence may be fairly summed up as 
follows. The agreement, undoubtedly, was 
that the volunteers should go first to 
Chaura Police Station and thence to the 
Muudera bazaar. At the former place they 
were to submit to Sub -Inspector, Gupteshar 
Singh a sober and dignified remonstrance 
against his illegal conduct in n--!il'iML r 
individual volunteers. They were to offer 
themselves to him for arrest in a body, if 
he was prepared to act upon the view that 
under the order of Government every en- 
rolled volunteer was ipso facto liable to 
arrest and prosecution. When this piece 
of business was satisfactorily settled, they 
were to move on to Mundera bazaar and 
there, by peaceful persuation exercised to- 



wards the licensed vendors of intoxicating 
liquor and drugs, and towards any persons 
whom they might find attempting to pur- 
chase the same, put a stop to the public 
sale of these harmful intoxicants. They 
were at the same time to stop the sale of 
meat and of fish, either absolutety or un- 
less the vendors submitted to the sweeping 
reduction in price of which we have already 
spoken. As a matter of fact this latter 
alternative cannot be seriously considered. 
Everyone must have known that meat and 
fish would not be sold at the price suggest- 
ed by the volunteers and the idea of obtain- 
ing meat and fish at reduced prices had 
by this time been wholly superseded by the 
idea of punishing the vendors of these com- 
modities in Mundera bazaar for their con- 
tumacy by closing their shops altQgether. 
All the evidence on the point is simply and 
plainly to the effect that the volunteers were 
to stop the sale of meat and of fish. 

On this the first comment we have to- 
make is, that the very idea of a body oft 
3,000 men or more controlling the shops' 
in the Mundera bazaar by means of peace-f 
f ul persuasion is on the face of it almostf 
grotesque. Whatever may be said in de-* 
fence of peaceful picketting, when under-t 
taken in the market of a large town by in-3 
dividuals, or by small groups of earnest^ 
and enthusiastic men or women, has no- 
application whatever to the proposed flood- 
ing of a small bazaar like Mundera by aF 
body of men whose mere presence there- 
would put a stop to all business whichf 
could only be carried on with their consent^ 
and indeed with their active assistance! 
Secondly we cannot deal with the question 
of the object of the volunteers in moving 
on Mundera bazaar without taking into con- 
sideration the events of the previous Wed- 
nesday. The expedition of Saturday, Feb- 
ruary 4th, was in plain fulfilment of the 
threats which had been used by Nazar All 
and other leaders of the volunteers on the 
previous market day. So far as this part of 
the case is concerned, we have no doubt 
that the agreement come to at Dumri to 
stop the sale of intoxicants, of meat and of 
fish in the Mundera bazaar was, under the 
circumstances, an agreement to commit au 
offence punishable with rigorous imprison- 
ment for two years at l&ait, namely, tha 
otTenaa of criminal intimidation under 
s. 505, Indian Penal Code. 

As regards the visit to Ctiaura Police 
Station, it may perhaps be necessary to dish - 



[92 I. 0. 1926] ABDULLAH 

tingttish between the intention of those 
who organised the movement and the pur- 
pose of the great mass of the crowd who 
gave their adhesion to the same, Lai 
Muhammad, Nazar Ali and those who were 
with them had used very exaggerated 
versions of the Sub-Inspector's violence to- 
wards the volunteers in order to get to- 
gather the largest possible gathering of 
their supporters. They were taking them 
to Chaura for the avowed purpose of ask- 
ing the Sub-Inspector why he beat volun- 
teers. To the minds of the great majority 
of the crowd this expression, we have no 
doubt, carried very much the same signifi- 
cance as that conveyed by the correspond- 
ing English phrase in the historic rhyme, 
which tells how the Cornish men proposed 
"to know the reason why" Bishop Trilawny 
was being prosecuted by King James II. 
At the same time the purpose actually up- 
permost in the minds of those who organ- 
ised this demonstration was to overawe 
the Police at Chaura into quiescence } be- 
fore the crowd moved on the Mundera 
bazaar, in order that^they might be certain 
of being able to work their will there 
without interference. 

From every point of view the agreement 
come to amounted to criminal conspiracy. 
There has been much criticism before us, 
directed against the drafting of the conspi- 
racy charge, and that criticism is not alto- 
gether without foundation. As we read the 
charge, the illegal acts which the accused 
are alleged to have agreed amongst them- 
selves todb fall under two distinct heads: 

(a) to overawe the Police by force or show 
of force, 

(b) to beat the Police, in consequence of 
what the Sub-Inspector andhis subordinates 
had previously done at Mundera on the 1st 
of February. 

The second part of the charge, as thus 
Stated, is not sustainable, if only for the 
reason that when Sub-Inspector, Gupteshar 
Singh caned the accused, Bhagwan Ahir, he 
was not acting in the discharge of his duty. 
The first part of the charge is, in our opin- 
ion, borne out by the evidence. We have 
also expressed our opinion that the 
agreement come to as to what was to be 
done by the crowd when they reached Mun- 
dera amounted to criminal conspiracy, al- 
though that is not expressly set forth in 
the charge. As a matter of fact, although 
*ve are prepared technically to affirm the 
Convictions recorded under s. 120-B, Indian 



159 

Penal Code, except where we have arrived 
at the conclusion that in the case of a par- 
ticular appellant the evidence is insufficient 
to support any of the charges, Uhe question 
is to our minds one of little more than aca- 
demic importance. What we really have to 
determine is whether Sub-Inspector Gup- 
teshar Singh was warranted by law in the 
action which he took that afternoon at 
Chaura Police Station, and what was the 
common object of the crowd there assembled 
at least from the moment when they began 
to discharge volleys of missiles against the 
Police. 

On the first point we have in substance 
already expressed our opinion. A statement 
has been made in evidence that, before call- 
ing upon the chaukidars to disperse the 
assembly in front of the thana gate, Sub- 
Inspector, Gupteshar Singh made some at- 
tempt to issue a formal command directing 
the assembly to disperse. It is likely enough 
that the unfortunate Sub-Inspector did try to 
strengthen his own position by formal com- 
pliance with the provisions of s. 127, Cr. P.O. 
It would have been no more than a formal 
compliance at most, and the evidence on 
point is not particularly convincing. We 
are, however, abundantly satisfied that, 
from the moment the crowd of volunteers 
left Dumri Khurd, right up to the time 
when they began to file past the gate of 
Chaura Police Station, they not merely 
constituted an unlawful assembly, but were 
conducting themselves throughout in such 
a manner as to show the firmest possible 
determination not to disperse if called upon 
to do so. The Sub-Inspector was, therefore, 
abundantly justified, under section 128, 
Cr. P. C , in attempting the dispersal of the 
crowd at the moment when he did so. If 
he failed in his duty at all, it was in not 
having done so sometime before. Argu- 
ments which have been addressed to us at 
the hearing of this appeal only serve to 
suggest the storm of criticism which the Sub- 
Inspector would have provoked if he had 
resolutely done his duty, as we conceive it, 
by barring the further advance of the crowd 
before they reached the southern boundary 
of the Police Station. lu this connection 
we are bourld to note the great stress laid 
in argument before us on the fact that the 
volunteers set forth on this expedition were, 
generally speaking, unarmed. We agree 
that the evidence justifies the conclusion 
that they did so, though we are not prepared 
to say that numbers of those who joined 



ABDULLAH V. EMPEROR, 



[92 1. 0. 1928] 



crowd on the march were similarly unarm- 
ed It may be matter for consideration 
also how far the flags mounted on 
staffs, carried in front of the crowd, were 
capable at need of being used as weapons. 
We do think, however, that those responsi- 
ble for organising this movement did intend 
that the volunteers should advance on the 
Police Station without weapons and that, in 
the main, they succeeded in carrying out 
this purpose. This finding in no way con- 
flicts with the findings we have recorded 
as to the unlawful character of the assem- 
bly. The crowd was formidable enough, 
without carrying weapons, to have over- 
whelmed any resistance offered hy the small 
Police force, provided only they showed 
sufficient courage and resolution. If their 
resolution had failed them and they had 
scattered, after suffering a number of 
casualties from the muskets of the Police, 
the fact that they carried no weapons 
would no doubt have been used to support 
a- story of the wanton massacre of peaceful 
demonstrators by the agents of a ruthless 
Government. 

The immediate objectof the assembly as 
it reached the Police Station was to threaten 
and to obstruct Sub-Inspector, Gupteshar 
Singh and the Policemen with him in the 
discharge of their duty, an offence punish- 
able under s. 152, Indian Penal Code, an 
object sufficient in itself, and apart from 
any of the other clauses of s. 141 of the same 
Code, to bring the matter within the 
purview of the third clause of the said 
section. We have, however, already in- 
dicated onr opinion that a further and more 
dangerous purpose lurked behind. Shikari 
stated in his evidence that the resolution 
come to at Dumri was that, after asking the 
Sub-Inspector why he had beaten volun- 
teers, they should beat him if his answer 
was unsatisfactory. The approver Thakur 
stated that the agreement they had come 
to was that if he (the Sub-Inspector) "beat 
us we should beat him." We are asked to 
disbelieve these statements on the strength 
of various arguments based, in part, upon 
a "comparison of the evidence given by the 
approvers at the Sessions trial witiji previous 
statements which they had made in the 
Magistrate's Court, or elsewhere. This 
evidence, however, and particularly Thakur's 
version of the scheme as it presented itself 
to the mindsof the volunteers, fits in too well 
with what actually occurred at Chaura for 
us to feel any doubt that these controverted 



statements are substantially true. The 
instructions which had come down to the 
volunteers from their superiors, by what 
channel we do not know, were that they 
were not to be the first to use violence ; 
but that, if the Police used force, they were 
to be at liberty to retaliate in such manner 
as they might consider best and most 
effective. The evidence as a whole leaves 
no doubt whatever in our minds on this 
point. We know also that the objects which 
the volunteers had set before them for 
accomplishment, at Chaura first, and after- 
wards at Mundera, were such as must sooner 
or later provoke the most long suffering of 
Police Officers to the forcible use of 
his lawful authority against the lawless 
crowd. 

An intention to assault the Police in 
certain eventualities was, therefore, part of 
the common object of the whole assembly 
of volunteers from the time they left 
Dumri. From the moment the whistles 
sounded and the crowd turned back and 
commenced their organised, and, to the 
extent which we have indicated, their 
premeditated, attack on the Police Station, 
the object of every member of the crowd 
was unquestionably to cause the utmost 
hurt in his power to any Policeman on whom 
he could succeed in laying hands. After 
the first effective volley had been fired, and 
when the crowd continued their attack and 
pressed it home in face of the casualties 
they had suffered, their object was, beyond 
possibility of doubt or contradiction, to do 
simply what they did, namely, to take life, 
in revenge for life. The crowd which 
stormed the Police Station and massacred 
the Policemen and chaukidars was the same 
crowd which had commenced the attack 
with volleys of missiles. The charge drawn 
up under s. 302/149, Indian Penal Code, is 
fully established as against any one of the 
accused persons *who is proved by evidence 
to have continued an active participant in 
the riot after the moment when kankar 
began to be thrown, unless and until it can 
be inferred from credible evidence that he 
separated himself from the rest before the 
offence of murder had been committed by 
any one of them. 

Passing on to consider the cases of 
individual appellants, we find it convenient 
to depart from the alphabetical order 
followed by the learned Sessions Judge. 
Up to certain point at any rato, it appears 
to us that we are able to obtain a clearej 



1.0. 1928] 



ABDULLAH V. EMPEROR. 



161 



and more logical view of the effect of the 
evidence as a whole by grouping the 
accused peraons together, a.s far as possible, 
under the head of the villages in which 
they reside. The prosecution believed that 
they had evidence in their possession to 
support the conclusion that contingents of 
volunteers from no less than sixty villages, 
situated within a radius of fifteen miles or 
so from Ohaura Police Station, took part in 
the final encounter with the Police. The 
list of appellants now before us contains 
representatives from a large proportion of 
these villages; but considerable groups 
come from each of five or six particular 
localities which have consequently assumed 
a special importance in the history of the 
case. We propose to take up these groups 
first. 

We begin with the village of Dumri 
Khurd, which was the rendezvous of the 
volunteers and from which the nucleus of 
1,000 to 1,500 men set forth on their expedi- 
tion to Chaura Police Station and Mundera 
bazaar. The learned Sessions Judge had 
before him no fewer than 31 accused per- 
sons from this village. He found the 
evidence against six of them insufficient to 
warrant a conviction a fact which in itself 
suggests to our minds that the prosecution 
net had been spread a litcle too widely, so 
far as this village is concerned. One feature 
common to practically all the accused from 
this village is that they are implicated in 
the evidence given by the approver Shikari. 
The circumstances under which this man 
made his appearance in the witness-box 
are sufficiently set forth in the judgment 
under appeal. He proved himself an 
intelligent and even plausible witness. His 
statement, as we have been taken through 
it, reads convincingly. We have no hesita- 
tion in agreeing with the learned Sessions 
Judge that Shikari did take that part in the 
events referred to in his evidence which he 
ascribed to himself , possibly even a some- 
what more prominent part. In the main, 
as we have already stated, we are satisfied 
that the witness had made up his mind to 
earn his pardon honestly, by making a 
clean breast of the facts so far as known to 
him. At the same time we are entirely in 
agreement with the principle which, the 
learned Sessions Judge has himself laid 
down, that this is not a case in which the 
Court would think of departing frorfa the 
general rule of practice which requires 
pome reliable corroboration of the evidence 

11 



of an accomplice, before it will accept that 
evidence as sufficient proof of the guilt of 
a particular accused. In certain instances 
the learned Sessions Judge has himself 
found reason to suspect that Shikari may 
have stretched a point against particular 
neighbours of his, for the sake of gratify- 
ing an antecedent grudge. Apart from 
this, the man was obviously under a con- 
siderable temptation to introduce into his 
story the names of any of his own fellow 
villagers against whom he believed that the 
Investigating Police Officers were entertain- 
ing serious suspicions. His failure to do so 
might, according to the mentality of a per- 
son of his class, endanger his own pardon 
by creating a suspicion in the minds of 
the Police that he was endeavouring to 
shield neighbours of his own about whose 
doings he could not well profess ignorance. 
We have made these general remarks 
because, upon a review of the entire evi- 
dence against the Dumri men and a further 
sifting of that evidence, we have come 
to the conclusion that the doubts enter- 
tained by the learned Sessions Judge 
regarding the adequacy of the corrobora- 
tion forthcoming against six of the&e 
men should have been extended to a con* 
siderably larger number. 

We have now to consider the appropriate 
sentence to pass on each of those appellants 
in respect of whom we have affirmed the 
conviction on the capital charge, namely, 
that under s. 302/149 of the Indian 
Penal Ctode. The law allows us a certain 
discretion. We are empowered to confirdi 
the sentence of death in each case which 
has been passed by the Trial Court ; or we 
can set aside that sentence and substitute 
for it one of transportation for life. The 
exercise of this discretion is subject to the 
same condition by which the learned Sessions 
Judge felt himself to be bound. In every 
case of a conviction on a charge of murder 
the law regards sentence of death as the 
normal and appropriate punishment. 
Where the Court sees fit to pass the lesser 1 
sentence of transportation for life it must 
record its reasons for so doing. 

We do not, however, agree with the 
learned Sessions Judge that it is impossible 
to formulate such reasons in respect of any 
of the appellants in this case whose con- 
viction on the capital charge we have affirm- 
ed. We do not think it expedient to say 
too much on this point, for we, in no way, 
desire to extenuate the savage nature of the 



VISHWANATH PRA8AD V. EMPEROR. 



[92 I. 0. 



crime or to come forward as apologists 
v for the lawlessness of the crowd. We take 
account nevertheless of the fact that this 
crime grew out of a political agitation. 
The appellants are in the main ignorant 

easantB ; the great majority of them were 
, rawn into the business by misrepresenta- 
tions of fact and preposterous promises con- 
cerning t,he millennium of "Swaraj" the 
arrival of which was to be forwarded by 
courage and resolution on their part. Some 
indeed were apparently influenced by the 
belief that Mr, Gandhi was a worker of 
jniracles. We cannot take leave of the case 
Without an uneasy feeling that there are in- 
dividuals at large at this moment, men who 
Have not even been put on their trial in con- 
fection with this affair, whose moral res- 
ponsibility for what took place at Chaura 
Police Station on the afternoon of February 
4th, 1925, is at least equal to that which 
rests upon such men as hazar Ali and Lai 
Muhammad, who acted as leaders openly, in 
the light of day, and at least placed their 
own, lives on the hazard along with the 
rest. 

These are sufficient reasons, in our opinion, 
to warrant the course we propose to take. 
We reserve the supreme penalty of the law 
for the ringleaders and for those against 
whom we find specific acts proved by the 
Evidence such as would have bound us to 
convict them on a charge of murder, apart 
from the special provisions of s. 149 of the 
Indian Penal Code. As to these we find 
frothing which can in our view warrant any 
Other sentence than that of death. Against 
the remainder we pass the only other sen- 
tence permissible to us by law, that of 
transportation for life 

We propose to go a step further than this. 
In respect of a considerable number of the 
men whom we are sentencing to tran- 
sportation for life we have formed the opin- 
ion that their cases arc fit to be considered 
With a view to the exercise of the clemency 
of the Grown. * > 



N, H. 



Sentence confirmed. 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

MISCELLANEOUS PETITION No 61 OF 1925. 

November 3, 1925. 

Present: Mr. Find lay, Officiating J. C. 

VISHWANATH PRASAD PANDE 

APPLICANT 

versus 
EMPEROR NON-APPLICANT. 

Criminal Procedure Code (Act V of ISPS), s 52-~ 
Transfer of criminal case Expression of opinion ly 
Magistrate in another case about guilt of accused. 

The fact that a Magistrate has expi eased in another 
criminal case a distinct opinion about the guilt of 
the accused is a reasonable ground for the apprehen- 
sion that he may not have a fair and impartial trial 
before the Magistrate and is, therefore, a good giound 
for transferring the case from his file. [p. 163, col. L] 

Application for transfer of Miscellaneous 
Criminal Case No. 41 of 1925 under s, 110 of 
the Cr. P. C. pending before the Sub-Divi- 
sional Magistrate, Bhandara, to the file of 
some other Magistrate, 

Mr. D. T. Mangalmoorti, for the Appli- 
cant. 

Mr. G. P. Dick, for the Crown. 

JUDGMENT. The present applicant 
desires a transfer of Miscellaneous Criminal 
Case No. 41 of 1925 pending against him 
.under s. 110 of the Or. P. C., from the 
Courtof Mr.G.L.Mukerji, First Class, Magis- 
trate, Bhandara. The only ground in the 
transfer application, which seems tome to re- 
quire serious notice, is the fact that in Miscel- 
laneous Criminal Case No, 18 of 1925 against 
Lochan and Chunbadia under the same 
s. (110) of the Cr. P. C. the same Magistrate 
expressed a distinct opinion at the end of 
his order that the present applicant was 
abetting the actions of these two men 
who are his servants. 

It is urged that on this ground the ap- 
plicant has reasonable cause of apprehen- 
sion, that he will not meet with a fair or, 
impartial trial While I am far from sup- 
posing that the Magistrate would be likely 
to be unfair or non-impartial towards tho 
present applicant, it is in the circumstances 
of this case, impossible, if one takes tha 
point of view of the applicant, to hold 
that there is not reasonable ground for an 
apprehension of the kind he says he 
entertains. 

The learned Standing Counsel on behalf 
of the Grown, in opposing the ai rlirasiai 
has relied on the decisions in Rajam Kanio, 
Dutta v. Emperor (1) and Emperor v. liar- 

(1) 3 lad, Cas, 68; 36 C, 04; 10 Cr, L, J, 244, 



[02 I. 0. 1926] 



ABDttL Q.\DIR V. EMPEROR, 



163 



gobind (2). The former decision so far as 
arty general principle can be extracted 
from it, merely lays down that, in apply- 
ing the doctrine of reasonable apprehen- 
sion in the mind of an applicant like the 
present one, regard must be had to the 
circumstances of each particular case. The 
second decision is somewhat different. 
There two cross-cases arising out of a riot 
were pending in a single Magistrate's Court. 
Tudball, J., did not find it necessary to 
order the transfer of the second case, al- 
though the Magistrate had expressed an 
opinion in the previous case that the 
applicants in the second case were the ag- 
gressors. The learned Justice merely point- 
ed out that it would be the duty of the 
Magistrate to act simply and solely on the 
evidence which was laid before him in the 
course of the second trial. A decision 
somewhat to the contrary effect is to be 
found in the case Rangasami Goundan v. 
Emperor (3). 

Now, in the present instance, the fact 
remains that the Magistrate has, possibly 
quite rightly, expressed a distinct opinion 
in his order of 5th August 1925 that the 
present applicant was guilty of abetting 
Lochan and Ohunbadia, his two servants, 
concerned therein. This seems to afford 
ample ground for a reasonable apprehen- 
sion of the kind alluded to in s. 526 of the 
Cr. P, 0,, and it would appear to me also 
that, even from the point of view of the 
Grown itself, it is highly desirable that 
the present case should be dispose J of by 
a Court in which there could not be the 
slightest ground for any allegation that 
there was any tinge of conscious or un- 
conscious bias on the part of the Magis- 
trate concerned. For these reasons, there- 
fore, I order Miscellaneous Criminal Case 
No. 41 of 1925 to be transferred from the 
Oourtof Mr. Mukerji, First (Jlass Magistrate, 
Bhandara, to the Court of the District 
Magistrate, Bhandara, or to the Court of 
such other First Class Magistrate in the 
District as he may appoint to dispose of it. 

N, H. Case transferred. 

(2) IS Ind. Gas. 652; 33 A. 583; 12 Cr. L J. 564. 
" (3) 30 M. 233; 2 M, L. T, 89; 5 Cr. L. J. 290. 



LAHORE HIGH COURT. 

CRIMINAL REVISION No. 590 OF 1925. 

Jane 5, 1925. 

Present; Mr. Justice Abdul Raoof. 
ABDUL QADIR PETITIONER 

versus 
E MPE RO R RHSSPONDBNT. 

Practice Dispute of Civil nature Criminal pro* 



Parties should not be encouraged to resort to the 
Criminal Courts in cases in which the point at issue 
between them ia one which can more properly be 
decided by a Civil Court. In each case, however, it 
must be aeen whether the issue as to title is raised 
bona fidt or mala fide [p 164, col. L] 

Criminal revision against an order of 
the Magistrate, Ferozepore. 

Lala Fakir Chand, for the Petitioner. 

Messrs. Abdul Aziz and Ata Jelani Khan, 
for the Respondent. 

JUDGMENT. This petition for 
revision is the result of a dispute between 
the Municipal Committee of Zira and the 
petitioner with regard to a pond around 
which are certain number of trees. It was 
reported to the Municipality that some of 
those trees had dried up. Thereupon the 
Municipal Committee resolved to sell the 
timber of those trees. A notice was issued 
to the public inviting them to attend the 
sale which was to take place on the 18th 
of February 1925, at 10 A. M. The peti-^ 
tioner claims to be one of the proprietors 
of the pond and of the trees standing 
around that pond. He also claims that 
he has purchased the shares of some of 
the other co-proprietors under four sale* 
deeds. He asserted his right of owner- 
ship by openly cutting certain trees on the 
date and at the hour fixed for the sale by 
the Municipal Committee. Thereupon the 
Committee decided to prosecute the pe- 
titioner in the Criminal Court for the 
offence of theft. A certain amount of evi- 
dence was taken and the Magistrate framed 
a charge charging the petitioner of the 
offence of theft under s, 379, Indian Penal 
Code. Against the order framing the 
charge the present petition for revision 
has been preferred and it has been contend- 
ed chiefly with reference to the ruling in, 
Em,peror v. Bishan Das (1) that the dispute 
between the parties being of a civil nature 
the Magistrate ought not to have framed the 
charge of theft against the petitioner And 
ought to have directed the parties td go 

(1) 8Ind. Cas, 1161:33 P. R. 1910 Cr.; 57 P 
1011; 12 Cr, L, J, 50, 



184 



BAJIRAO t. DADIBAI. 



i. u. 



to the Civil Court and seek a remedy there. 
The learned Judges who decided the case 
made some observations on this particular 
point, which is summed up in the head- 
note appended to the report of the case in 
the following words : 

14 That it is a very sound general 
principle and one to be observed by all 
Magistrates that parties should not be en- 
couraged to resort to the Criminal Courts 
in cases in which the point at issue be- 
tween them is one which can more appro- 
priately be decided by a Civil Court.'* 

This ruling has been followed in various 
other cases in this Province, see, for example, 
Khushi Ram v. Emperor (2) and I^dha 
Shah v. ZamanAli (3). There is a later case 
also, namely, Shib Das v. ttmperor (4), which 
also lays down a similar rule. Of course 
in each case it is to be seen whether the 
issue as to title is raised bona fide or mala 
fide. Ifc is premature for me to decide at 
this stage whether the petitioner and his 
co-owners are the proprietors of this bond 
and the trees or the Municipal Committee 
exercises right of ownership over them, But 
from what I have been able to see from 
the record I am not prepared to hold that 
the claim asserted by the petitioner is 
wholly without foundation. It is possible 
that he may not have a title which may be 
accepted in a Civil Court, but on the other 
hand it cannot be said in an off-hand manner 
that he was not exercising his right of 
ownership when he began to cut the trees 
on the date fixed by the Municipal Com- 
mittee for the sale of these trees. Having 
regard to all the ..-: ::: ]'.:.- circumstance^ 
of this case I think the Magistrate would 
have exercised a better descretion if he 
had followed the instructions contained 
in Emperor v. Bishen Das (1) I, therefore, 
accept the petition and quash the charge 
framed by the learned Magistrate. 

z. K. Appeal accepted. 

(2) 59 Ind. Cas. 654; 22 Cr. L. J. 142; 6 P. W. R. 
1921 Or.; 3 L, L, J. 99. 

(3) 84 lad. Gas 331; (1925) A. I. R. (L.) 289; 26 
Cr. L. J. 287 

(4) 21 Ind Cas. 899; 335 P. L. R. 1913; 40 P. W. R. 
1913 Or.; 14 Cr, L. J. 659, 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

- CRIMINAL REVISION No. 98 OF 1925. 

August 13, 1S25. 

Present: Mr. Findlay, Officiating J. 0, 
BAJJRAO APPLICANT 

versus 

Musammat DADIBAI AND AKOTBER 
NON-APPLICANTS. 

Criminal Procedure Code (Act V of 18Q8), s. H5-~ 
Possession of agent or servant, whether can be pleaded 
ayai?ist principal or master. 

The possession of an agent or a servant which is 
permissive cannot give a party to a proceeding under 
s. 145 a locus standi against his principal or master. 
The possession that can be pleaded in such a proceed- 
ing must be possession based on a claim of right to 
possession, [p. 165, col 2.J 

Nmtta, Gopal Singh v, Cthandi Char an Singh, 10 0. 
W. N. 1088; 4 Cr, L. J. 215, followed. 

Application for revision of an order of the 
Sub-Divisional M -^i-'i -. Gondia, dated 
the 15th April iJ.j, IK Criminal Case 
No. 30 of 1924. 

Mr, M. V. Abhyankar, for the Applicant. 

Messrs V. M. and Y. V. Jakatdar, for the 
Non- Applicants, 

ORDER. The facts of this case have 
been fully stated in the Sub-Divisional 
M-iir'-'r-i'-'s order. The present applicant 
iJ.-^i::: v.s now come up in revision against 
the said order under which Musammat 
Kamabai and Dadibai were ordered to put 
in possession of the 9 sir fields in question 
in Mouza Gangla. 

It cannot be denied that on 18th February 
1924Kondibai and Laxmanrao executed &. 
deed of surrender in respect of the sir land 
in question in favour of the present appli- 
cant, and the said deed of surrender con- 
tained a condition that the applicant would 
enter into possession on 1st May 1924, that 
is in the beginning of the agricultural ye^ 
1924 55. In the previous proceeding tmd 
s. 145, Cr. P. C,, the all important docu* 
mentis the compromise application of 16tli 
Augubt 11*24. 1 his compromise applicatioa 
was signed not only by Kondiba, Laxmanrao 
and Bajirao, but by Narayan for Musammat 
Kamabai as well Objection had betn 
taken to r " ' ' r '"'; . but as it fours 
part of a j . . ,,:" is clearly admis- 
sible as evidence of an admission by Kamfc- 
bai that Bajirao had obtained possession 
not neceeearily on 1st May 1924, but en 
some date before 16th August 1924, the date 
of the petition in question. It is Narayan's 
authority to make the admission which is 
now sought to be impugned on behalf o{ 



BAJIRAO V. DAD1BAI. 



[S2I.0. 

the non applicants, but it is noticeable 
from his evidence in the said proceedings 
that he was agent both for Laxmanrao and 
for Kamabai. The Magistrate, affcer ex- 
amlaing three wiin^^es.inol'iJinEfKondiba, 
passed an order cancelling his preliminary 
one. Evea the Magistrate found, vide 
para. 5 of the order now sought to be 
revised, ttyat the dispute had been settled 
by the taale members, viz , Kondiba and 
Laxmanrao, who were, in effect, the princi- 
pals. On 30fch October 1924, however, when 
Bajirao sent {his ploughs to sow the rabi 
crops, he was obstructed by the non-appli- 
cants, vide EXH. P. 6 and P. 7. In conse- 
quence of the reports to theJFplice and their 
further enquiry a fresh preliminary order 
was passed on 16fch December 1924. 

The only vital question, therefore, for con- 
si deration is whether the present applicant 
was in possession on 16th December 1924, 
or within two months beforehand. The com- 
promise petition, as a result of wfcich the 
previous proceedings under s. 145, Or, P. C., 
were abortive, may or may not be attackable 
in the Civil Court, but must, for the purposes 
of the proceedings, obviously be assumed to 
bs a genuine one, and it follows therefrom 
that the applicant was, on the non-applicant's 
own admisssipn, in peaceable possession, 
at any rate, in August 1924. There has 
been no evidence of the non-applicants 1 
possession between that date and 30th 
October 1924 when undoubtedly they 
obstructed the applicant in his attempt to 
sow the fields Applicant's possession would 
prima /&cie appear to have been a lawful 
&ad proper one in pursuance of a deed of 
compromise containing the relevant admis- 
sion ,s to possession, which had been duly 
filed in Court The Magistrate has laid 
preat stress on the question of who was 
m possession on 1st May 1924. But assum- 
ing that the non-applicants were in pos- 
session then, and assuming further that 
they had sown the kharif crop of that 
year, the position was entirely altered by 
the admission made in the deed of com- 
promise, and on the material available it 
certainly seems to me that the presumption 
must be made that the applicant wag in 
lawful possession within two months of the 
date of the preliminary order. The forci- 
ble obstruction of the applicant from sow- 
ing the rab t i crop on 30th October 1924 
3ccurred less than two months before the 
dnte of the preliminary order. 

In dealing with the various reports, 



165 



which have been made feo the Police in con- 
nection with various episodes in this dis- 
pute, the Magistrate seema to have put an 
entirely wrong construction on the reports 
in question. Lat us consider who the non- 
applicants are. They themselves practically 
admit that they are holding on behalf of 
Kondiba and Laxmanrao who are in reality 
their principals. The plea that they have 
some right to the land in respect of the 
claim for maintenance is not one which 
need be considered seriously in a summary 
prcre^liiitf like that we are concerned with. 
What lli 'reports like e. g. Rxs. P. 1 to P. 5 
do show is that when Bajirao went, in pur- 
suance apparently of a bona fide belief that 
he was entitled to the possession of the 
fields in question, to take steps for cultivat- 
ing them or reaping the crops he was for* 
cibly obstructed by the servants and parti- 
sans of the non-applicants. The Magistrate, 
for some reason or other, construes this 
mere act of resistance and obstruction as 
proof of the possession of the non-appli- 
cants, lam wholly unable to endorse such 
an interpretation of these documents. 
What all these documents as well as the 
later reports (Exs. P. 8 to P. 10) do show 
is that the non-applicants were attempting 
to obstruct the applicant in taking effective 
measures to cultivate the land in ques- 
tion. The position of the non-appli- 
cants, in effect, amounts to this that they 
were attempting to obtain or hold pos- 
session of the property against their prin- 
cipals. Musammat Kamabai in her evidence 
frankly admits that she was merely manag- 
ing the property on behalf of the two 
principals Kondiba and Laxmanrao. At 
the very best, therefore, the only plea, 
which can be put forward in favour of the 
possession of the non-applicants, is that 
their possession was merely ou behalf of 
their principals. 

I fully concur with the view laid down 
in Nritta Gopal Singh v. Chandi Charan 
Singh (1), that the possession of an agent 
or a servant which is permissive cannot 
give a party to a proceediug a locus standi 
as against his principal or master. The 
possession that can be pleaded in a pro- 
ceeding under s. H5, Cr. P. , inust be 
possession based on a claim of right to pos- 
session. From this point of view the posi- 
tion of the non- applicants is an absolutely 
untenable one. They, at the most, have u 

(1) 10 O..W. , 1088; 4 Or. L. J, 215, 



166 



BAJIRAO V, DADIBAI, 



[92 I. 0. 



right to challenge the surrender of the sir 
fields in the Civil Court, but their attempt to 
claim possession in their own names is, on the 
face of it, an improper and erroneous one in 
the circumstances of the present case. There 
may, of course, be reason for supposing 
that the present non-applicants are merely 
taking up the position they do as the result 
of a fraudulent and collusive conspiracy 
with Kondiba and Laxmanrao, but with this 
aspect of the case I am not at present 
concerned. Clearly, to my mind, in the 
present case the presumption must be 
drawn that Bajirao was put in effective 
possession by the surrendering tenants on 
some date prior to 16th August 1924 and 
remained in such possession, at any rate, 
until 30th October 1924 when the non- appli- 
cants prevented him from pursuing the cul- 
tivation of the fields in question. 

I am wholly unable to understand the 
Magistrate's finding in para. 13 of his judg- 
ment to the effect that he had grave doubts 
about the deed of compromise. If by this 
he meant that there may be a chance of 
successfully contesting the said compro- 
mise in the Civil Court, he may have been 
correct in this statement, but if, on the other 
hand, he meant that he was not, for the 
purposes of determining the question of 
possession, to assume that the admissions 
made in the deed of compromise as to the 
applicant's possession were actually made, 
then clearly he was not entitled to put 
such a construction on the said trans- 
action in dealing with the present proceed- 
ing. 

It is no part of my duty in the present 
proceeding to determine whether the com- 
promise was, as Kamabai alleges, made 
''behind her back" or not. We can only deal 
with the actual facts as to possession on 
the evidence available, and the circumst- 
ances, under which the previous s, 145 pro- 
ceedings were brought to an end, formed 
themselves the strongest and most irrefut- 
able proof that the applicant was in posses- 
sion within two months of the preliminary 
order we are concerned with. Undoubted- 
ly it is true that the Police reports on the 
record show that the non- applicants were 
diligent in obstructing, in every possible 
manner and for the most part in illegal fash- 
ion, ' the applicant from effectively carrying 
on the cultivation of the fields in question, 
but this fact of itself does not necessarily 
'predicate that the possession was with the 
jxon-applicaats. On the contraiy, all the 



circumstances go to show that the non-ap- 
plicants, no doubt owing to a belief that 
they had a genuine grievance were all 
through attempting to dispute and render 
ineffective by forcible and illegal action 
the surrehder which had duly been made 
in favour of the present applicant by 
Kondiba and Laxmanrao. 

The argument, which has been advanced 
on behalf of the applicant to the effect that 
if there had been a real compromise in 
August 1924, they would not have obstruct- 
ed the applicant in October, hardly requires 
serious discussion. Very obviously various 
possibilities remain in this connection. It 
may be that the non- applicants have been 
put up by Kamabai and Laxmanrao to 
render their surrender abortive or ineffec- 
tive, or again it may be that the non-appli- 
cants have taken up the position they have 
of their own accord. It is, however, impos- 
sible and unnecessary to decide these ques- 
tions in the present case. It is, in my 
opinion, clear, even on the case of the non- 
applicants themselves, that the applicant 
was in possession within two months of the 
date of the preliminary order. He is in 
possession prima facie under a good and 
legal title acquired, not only on the basis 
of the surrender but on the admissions made 
in the deed of compromise, and it seems to 
me that from this point of view his 
possession must be in the meantime con- 
firmed, t 

The order of the Sub-Divisional Magis- 
trate, dated 15th April 1925, is accordingly 
reversed and instead I order Bajiro, the 
applicant, to be put in possession of the 
sir fields Nos. 116, 118, 120, 129, 130, 139, 
140, 141 and 144, total area 52'40 acres, 
situate in Mauza Gangla, until evicted 
therefrom in due course of law, and I fur- 
ther forbid the non-applicants, Musammat 
Dadibai and Kamabai, to create any dis- 
turbance of such possession until such evic- 
tion. 

o. R. D. Order accordingly. - 

N. H. 



[92 I* 0. 1926J 



PAETAP SINGH V, BMPBfeOft. 



167 



LAHORE HIGH COURT, 

CRIMINAL APPEAL No. 135 OF 1925, 

May 15, 1925. 
Present ; Mr. Justice Harrison and 

Mr Justice Jai Lai. 

PARTAP SINGH AND OTHERS ACCUSED 
APPELLANTS 

versus 
EMPEROR RESPONDENT. 

Evidence Act (I of 1872), ss. 160, WO-Dying de- 
claration, proof of IdentificationEvidence of 
offizir who held para-It for idtntification, admisaibil- 
ity of. 

A dying declaration, if certified in Court, as having 
bean recorded correctly, is admissible in proof of 
its own contents and it is unnecessary that the person 
recording it should repeat exactly in his own words 
whit the deceased had said [p 163, col 2.~| 

Gkazi v. Emperor, Hind Cis 417, 17 P R. 1911 
Or.; 13 Or L. J. 225; 48 P. W K. 1911 Or and Abdul 
Jalil v. Empress, 13 P R. 1833 Or > referred to. 

Emperor v. Balaram Das, 71 Ind. Cas. 695, 49 
358, (1922) A. L R. (C) 382; 21 Or. L. J. 221, relied 
Upon 

, If the wifcue3339 thsmselve'S do not repeat in Oourt, 
that they had picked out certain men at an identifica- 
tion parade, the evidence of officers who had conduct- 
qd tin parads, that the witnesses had picket out the 
nnn, is admissible, fp 169, col, 1 ] 

Empzror v Balaram Da3, 71 In-t Cas 633; 40 0. 
358; (1922) A I. R (0 ) 3S2; 24 Or. L J 221, relied 



^ it is shown that at an identification parade 

witnesses picked out certain men as having taken part 
in a riot, but did not state to the officer who conducted 
the p \rade what pirt each man hid take i in the riot, 
the o^ar's evidence thit he h-vl told the witnesses to 
pick out the persons present in the riot, is quite 
su^bient and it i?not necessary that he should have 
examined the witnesses as to the part played by each 



individual [ibid 
Lil Singh' v. Emperor, 91 Ind 



Gas. 951; 5 L. 396; 
L J, 170, distingu- 



(1023) A I. R. (L ) 19; 27 Or 
ished. 

Appeal from an order of the Sessions 
Judge, Sialkot, dated the 18th December 
1924. 

Mr. 5. R. Puri, for the Appellants. 

Kanwar Dalip Singh, Government Ad- 
vocate, for the Respondent. 

ORDER. (May 6, 1925). The appeals 
of Ganda Singh son of Khushal Singh and 
Bhan Singh are accepted and it is ordered 
that they be set at liberty. 

JUDGMENT. (May 15, 1925). A very 
serious riot took place on the 12th April 1924 
at village Mahar in the Sialkot District in 
which three men Maula Dad, Imam Din and 
Nawabson of Umra were killed and four men: 
TJmar Din, Hussain Bakhsh, Nawab son of 
Bulanda and Bakha ware injured: Huasain 
Bakhsh having two fingers cut off and 
having lost in consequence the use of both 
haads, Twenty men were seat up for 



whom four were discharged by the Commit- 
ting Magistrate, eight were convicted by the 
Sessions Judge and eight were acquitted. 
It is also said that four abscondere took pait 
in the riot. Of the men convicted six, 
Partap Singh, Kartar Singh, Ajab Singh 
Ganda Singh eon of Jiwan Singh, Amar 
Singh and Ganda Singh eon of Khushal 
Singh have been sentenced to death. 
Sharam Singh son of Hawind Singh and 
Bhan Singh son of Atar Singh have been 
sentenced to transportation for life. All 
have appealed and the case is also before 
us for consideration of the question of the 
confirmation of the death sentences. 

After hearing the arguments addressed 
to us by the learned Counsel for the accused 
and the Crown we accepted the appeals of 
Bhan Singh son of Atar Singh and Ganda 
Singh son of Khushal Singh finding that 
the evidence was not sufficient to justify 
their conviction. After further considera- 
tion we have come to the conclusion that 
although there is a considerable amount of 
evidence against Sharm Singh and Amar 
Singh there is a certain element of doubt in 
their cases also. 

In the case of Sharm Singh, Huasain 
Bakhsh the most important witness, did not 
identify him at the parade held in Jail though 
he, subsequently, picked him out in Court, 
and although he was identified by Nawab son 
of Bulanda and Bakha, the remaining evi- 
dence against him is not sufficient to estab- 
lish beyond all possibility of doubt that he 
actually took part in the riot. 

The case of Amar Singh is similar: he 
also was not identified by Husaain Bakhsh 
in gaol nor by Ahmad Din, and the remain- 
ing evidence in his case also is not con- 
clusive. 

We acquit both these men. 

The facts are that a large "bhangar party 
consisting of some 20 men armed with 1 
chhavis, gandasas and lathis and headed, it is 
paid, by Sohan Singh Zaildar, who has not 
been sent up for trial came from the village 
Bhula to village Mahar. They marched to the 
house of Maula Dad deceased, where he was 
sitting with Ahmad Din and Hussain Bakhsh 
his brothers and Imam Din his cousin. They 
deliberately picked a quarrel and attacked 
Hussin Bakhsh first and then assaulted the 
others and killed and injured them. 

The medical evidence shows that Maula 
Dad who was killed had four incised wounds 
on his head and six others on his body : 
Imam Din had two incited wounds on 



163 



PARTAP SINGH V. BMF1I&0&. 



head and twelve blows from a lathi and was 
so seriously injured that he could not be 
carried to the hospital. Nawabson of Umra 
had three injuries, his leg having been cut 
right through, his forearm broken and his 
head fractured. Ahmad Din had 8 injuries, 
TJawab 13 andBakha 4. Two of the accused 
Partab Singh and Kartar Singh were found 
in jail to have been injured, Kartar Singh 
having an incised wound on the back of the 
head and Partap Singh 4 injuries caused by 
a blunt weapon. Both Counsel for the 
accused and Counsel for the Crown rely on 
the fact of these two men having been in- 
jured, the latter pointing out that the medi- 
cal evidence shows that the injuries must 
have been inflicted at or about the time of 
the riot and that no satisfactory explanation 
has been given as to how they were caused, 
the former urging that there must have been 
a general melee and that it is only fair to 
presume that it was the members of the vill- 
age Mahar who began the quarrel. 

^ We will first deal with the general criti- 
cisms which have been made on the;evidence 
produced by the prosecution and will then 
deal with the case of each accused. 

The first point and one to which due im- 
portance must be attached is that the leader 
of the bhangra party is said to have been 
Sohan Singh Zaildar, who has not been sent 
up for trial, and Counsel urges with con- 
siderable force that it was presumably found 
in the course of the investigation that he 
had been falsely implicated because of his 
prominent position and that this fact must 
be taken as discrediting the whole of the evi- 
dtnce for the prosecution. We have given 
due weight to this contention and have 
treated the evidence with extreme caution 
throughout. 

In addition to the eye-witnesses who have 
given evidence in Court certain statements 
were recorded with a view to their being 
used as dying declarations. These were the 
statements of Hussain Baksh, Ahmad Din, 
and Nawab son of Umra. Of these only 
Nawab son of Umra died and it is only his 
statement which can be treated or consider- 
ed as dying declaration. This was recorded 
by Muhammad Bashir Head Constable, who 
certified in Court that he had recorded 
it correctly and that Nawab was in his 
senses at the time. Counsel contends that 
UMUsrauch as Muhammad Bashir did not 
repeat in his own words what Nawab said 
to aim this statement is inadmissible, In 



L8SL 0.1988] 

Ghazi v. Emperor (1) and Abdul Jalil v. 
Empress (2) it was laid down that such state- 
ment must be proved and this would appear 
to show that if proved they are admissible. 
We also find that it has been clearly laid 
down in Emperor v. Balaram Das (3) that 
such a statement is admissible in proof of its 
own contents and it is unnecessary that the 
person who recorded it should repeat exactly 
what was said. In ss. 159 and 160 of the Evi- 
dence Act a distinction is drawji between the 
manner in which a witness may refresh his 
memory by referring to the writing he has 
made and the testimony which he can give 
of facts stated in the document. If it is 
merely a question of a man refreshing his 
memory the document itself is not tendered 
in evidence, and the witness merely gives 
evidence in the ordinary way after reading 
what he had written. Section 160 deals 
with the case where in spite of writing a 
document the witness has not got specific 
recollection of the facts therein recorded 
but is sure that they were correctly record- 
ed. Where this is the case the witness 'is 
still entitled to testify to the facts and the 
document itself is then tendered in evidence. 
This is what happens in cases such as these 
and the fact that the witness does not say 
in so many words that he does not recollect 
exactly what the witness said, which he 
naturally cannot do, does not affect admis- 
sibility of the evidence which he gives. 
Following Emperor v. Balaram Das (3) we 
find that this evidence is certainly admis- 
sible and we take the same view as was 
taken in Amir Zaman v. Emperor (4). 

The next point on which the Counsel has 
laid stress is the evidence of identification, 
dealing with the two parades, which were 
held at village Kalswala and in Jail. 
At the first of these parades accused 
Nos. 16 were not present, the obvious 
reason being as found by the learned Ses- 
sions Judge, with whom we agree, that it 
was considered unnecessary to include them 
in this first parade as they and their names 
were already known and the parade was 
not conducted with a vitfw to sfed which 
i&en out of those, who were arrested, 
could be identified by the witnesses but 
to see which men out of a large number of 

(1) 14 Fnd, Gas 417; 17 P. R, 1911 Or.; 13 Or. L. J, 
225; 48 P W. R. 1911 Or. 

(9) 13 P. R. 1886 Or. 

(3) 71 Ind. Gas, 685; 49 0. 358; (1922) A, L R. (0.) 
3fc2; 24 Or L. J. 221. 

. (4) 88 lud. Cas. B61; 6 L. 100; (1925) A. I R. (L.) 
&*, 26 Or. L. J, 1245, 



I. 0. 1926] 



RAH1MBE4 V. MBPBROR, 



169 



over 250 the witnesses could pick out as 
having taken part in the riot. The criticism 
amounts to this that the witnesses them- 
selves do not in all cases repeat in Court 
that they picked out certain men, that the 
evidence on the subject consists of the 
statements of officers who conducted the 
parade and who tell us what happened. 
This, Counsel urges, is secondary or cor- 
roborative and not primary evidence and, 
therefore, by itself has no value. Relying 
on the same ruling which we have quoted 
above we find that this evidence is admissi- 
ble. 

A further criticism is that the witnesses 
are not stated to have told the officer who 
conducted the parade what part each man 
took in the riot. This, in our opinion, is 
unnecessary. It has to be shown that the 
witnesses knew what they were doing and 
understood that they were identifying the 
men who took part in the riot, and this has, 
in our opinion, been shown to have happen- 
ed. Sardar Hazara Singh Tahsildar says 
that he told them to pick out the persons 
present in the riot. This evidence is quite 
sufficient and it was unnecessary for him 
to record at the time or to examine the 
witnesses as to the part played by each 
individual. The facts are not the same as 
those of Lai Singh v. Emperor (5) on which 
Counsel relies for there the notes were 
merely referred to and nothing more and 
the necessary facts were not established. 

The fourth general criticism isthatHussain 
Bakhsh the man who was seriously injured 
and who made the First Information Report 
has given a different statement in Court in 
the sense that he says that he was so serious- 
ly injured that he lost'consciousness and did 
not see all that is contained in First Infor- 
mation Report. This is not of any great 
importance and we are satisfied that he did 
not see exactly what part each of the rioters 
played and that at the time he made his 
First Information Report he was not able 
to name all the persons who took part. 

We now turn to the cases of the indivi- 
dual accused. 

[After discxissing evidence against each 
accused their Lordships concluded:] 

There can, in our opinion, be no question 
as to sentences and we confirm all the four 
sentences of death. 

s. 0, Sentence confirmed. 

. (6) 91 Ind. Oas. 95^; 5 It. 396; <19W) A- 1, R. (L.) 19; 
27 Or. fc. J, 170, 



NAGPUR JUDICIAL COMMIS- 
SIONER'S COURT. 

CRIMINAL APPEAL No. 12 1 OF 1924. 

July 16, 1924. 

Present: Mr. Baker, J. 0. 

RAHIMBEG ACCUSED APPELLANT 

versus 
EMPEROR RESPONDENT. 

Criminal Procedure Code (Act V of 1898), s 297 
Jury trial- -Charge Omission to read material wi* 
dence Omission to explain accused's right to benefit 
of doubt Trial, whether vitiated. 

An objection that in ' " ' . " 's charge to the 
Jury the Sessions Judge . . material por- 

tions of the evidence is not in itself sufficient for the 
reversal of the verdict of the Jury. In each case it 
must be a question whether the omission to read the 
material portion of the evidence was such as to 
mislead the Jury and the Court of Appeal will not 
interfere if it has not prejudiced the accused, [p. 109, 
col. 2, p 170, col. 1 ] 

Emperor v Appunna Devappa, 5 Bom L. R 207 and 
Empress v. Rochia Mohato, 7 C, 42, 8 0. L. R. 273; 3 
Ind. Dec (N s) 577, referred to. 

The omission to tell the Jury that the accused is 
entitled to the benefit of any reasonable doubt is not 
a misdirection vitiating the trial, though as a matter 
of practice it is as well to always end the charge with 
these words, [p 170, col. 2] 

Criminal appeal against an order of the 
Additional District and Sessions Judge, 
Nagpur. 

Mr. V. N. Herlekar, for the Appellant. 

JUDGMENT. The appellant has been 
convicted by the unanimous verdict of the 
Jury of rape and sentenced to seven years 1 
rigorous imprisonment and a fine of Rs. 100 
by the Additional Sessions Judge, Nagpur. 
*It is contended that the charge is vitiated 
because the Sessions Judge has not laid 
the evidence before the Jury and that 
he misdirected them in certain particulars 
which are given in the grounds of appeal, 

I have read the charge several times and 
have also read the whole of the evidence, 
It is to be noted that the evidence is not 
very lengthy, the witnesses on whom the 
case depends being the complainant (P, W. 
No. 1), Ram Narain, (P. W. No. 2), Nathu- 
lal, (P. W. No. 7) and the two constables. 
The learned Pleader for the appellant .has 
referred to some old cases which lay down 
that the whole of the evidence must be 
read out to the Jury, That is not the law 
now. An objection that in delivering hia 
charge to the Jury the Sessions Judge did 
not read material portions of the evidence 
is not in itself sufficient for the reversal of 
the verdict of the Jury, In each case it 
must be a question whether the otmssioa 
to read the material portion "of the evidence 



RAM CHARAW t, EMPEROR. 



[92 I, P. 192flj 



was such as to mislead the Jury and the 
Opart of Appeal will not interfere, if it 
has not prejudiced the accused, Emperor 
v. Appunna Devappa (1) and Empress v. 
Rachia Mahato (2) 

The learned Additional Sessions Judge 
has referred in para, 6 of his charge to the 
evidence that the present appellant was 
inside the room with the other two accused 
at the time the girl was heard crying 
out, and that one man left the room after 
P. W. No. 2 went to call the Police, In 
para. 5, the Judge has called the Jury's 
attention to the discrepancies in the evi- 
dence pointed out by the Pleader for the 
accused, and asked them whether they are 
such as to lead to a reasonable conclusion 
that the statements are not substantially 
true. 

I am, therefore, of opinion, that the 
Judge put the case fairly before the Jury, 
though perhaps not so fully as he might 
have done. 

Objection is taken to certain statements 
made by the Judge in his charge They 
are marked (a), (1) in the memorandum of 
appeal. 

Statement (a) regarding the First Infor- 
mation Report is perfectly unobjectionable. 
Statement (6) is a statement of evidence 
appearing on the record. So is statement 
(c). The fact that this statement was made 
in cross-examination, not in examination- 
in-chief, was not brought to the notice of 
the Jury, but as the arguments for the 
defence had been heard that day and the 
evidence was fresh in the minds of the 
Jury this is not a sufficient ground for in- 
terference with the verdict. 
1 Statement (d) is not only not a misdirec- 
tion but a statement which the Judge was 
bound to make to the Jury. It was his 
duty to ask the Jury to consider, whether if 
the girl was ravished by two men, the man 
other than Sarjerao was the present accus- 
ed. I do not understand how this can be 
made a ground of appeal. 
Statement (e) consists of two parts. The 
first is a statement of a well-known fact and 
the Jury was asked to consider the medical 
evidence in the light of that fact. 

The second portion is a statement of a 
fact appearing in the evidence of Shaikh 
Juman, constable, (P. W. No. 9). The 
Judge drew the attention of the Jury to 
the fact that the bundle of cotton on which 
' (1) 5 Bom. L. R, 207, 

(2) 7 0, 42; 8 0. L, R. 273; 3 Ind. Dec. (M s ) 577, 



the girl is alleged to have been lying was 
not produced, and to the question whether 
the girl's lugda was under her person at the 
time of the commission of the offence. 

The last statement is that lawyers usually 
describe such evidence as has been given 
in this case as overwhelming evidence 
against the accused. It would have been 
perhaps better if the Sessions Judge had 
not expressed his opinion of the evidence in 
so forcible a manner, but in the very next 
sentence he invites the Jury to find their 
own opinion on the facts as to which evi- 
dence has been given. 

The omission to tell the Jury that the 
accused is entitled to the benefit of any 
reasonable doubt is not a misdirection viti- 
ating the trial, though, as a matter of-prac- 
tice, it is as well to always end the charge 
with these words. 

After considering all the statements to 
which exception has been taken, I do not 
think there was any misdirection requiring 
the interference of this Court. The sen- 
tence, though severe, is not out of propor- 
tion to the heinous nature of the offence 
in this particular case, which was of a 
peculiarly revolting character, the girl 
being contined in a room in a serai and 
ravished by two men in succession while 
the chaukidar of the serai stood by with 
a cane threatening to beat her if she cried 
for help. 

The appeal is conssquently dismissed 
without notice to the Crown. 

N. H. Appeal dismissed, 



LAHORE HIGH COURT. 

CKIMIN^L REVISION No. 379 OF 1924. 

May ?3, 1924. 

Present; Mr. Justice Campbell. 
RAM CHARAN AND ANOTHER Ace QSED 
- PBTITJ ONERS 

versus 
EMPEROR RESPONDENT. 

Criminal Procedure Code (Act V of 1898), s. 188 
Offence committed in Native State by British Indian, 
subject Trial in British India Certificate of Politi- 
cal Agent, necessity of. 

Where the offence of kidnapping has been com-' 
mitted by British Indian subjects in a N-s'i 1 , i *;. ii t 
is not triable in British India withoi. 1 :. :,., -iiv' 
of the Political Agent, [p, 172, col. 1 ] 

Queen-Emprest v. Mastana, 11 P. R. 1899 Or., 
followed. 

Queen-Empress v, Katharverumal. 13 M. 423; 2 Weir 



[92 I. 0. 1926] 

147; 4 Ind, Dec. (N, s,) 1007 and Queen-Empress v, Ram 
Sundar, 19 A. 109; A. W. N, (1896) 191; 9 Ind. Dec. 
(N. s.) 71, referred to. 

The defect of the absence of a certificate is not 
curable by the subsequent production of the certificate. 
[ibid.] 

Case reported by the Additional Sessions 
Judge, Gujranwala at 8ialkot, with his 
No. 55- J of 22nd February 1924. 

FACTS appear from the following re- 
port of the Additional Sessions Judge: 
The accused on being charged under s. 363, 
Indian Penal Code, by Chaudkri Muham- 
mad Ismail Khan, exercising the powers of 
a Magistrate of the First Class in the 
Gujranwala District, were committed to 
this Court by order, dated 9th of January 
1924, to stand their trial in this Court on 

the said charge. 
* * * * * 

Both Ram Charan and Musammat Gopi 
are Native Indian subjects of His Majes